DAMAGES - INJUNCTION BOND - ATTORNEY\u27S FEES AS DAMAGES

Frequently, when a litigant seeks to establish rights with respect to particular property, it is possible for the opposing party so to act with respect to the property involved, while litigation is pending, as to deprive the plaintiff of the substantial benefit of his remedy should he prevail. Consequently, on prima facie showing of right, courts of equity will grant a temporary injunction to freeze the situation until the rights of the parties are finally determined. Since the temporary injunction is issued without a final determination of the rights of the parties, the enjoined party is deprived of dominion over the subject matter before it is finally decided that dominion is not rightfully his. Therefore, should he ultimately prevail in the action, he is deprived of whatever benefits he might have gained through the exercise of his rights in connection with the subject matter during the interim between the issuance of the temporary injunction and the final hearing. Courts of equity, recognizing this source of hardship, have required as a condition precedent to the issuance of a temporary injunction that the plaintiff execute a bond conditioned on payment of all damages the defendant might sustain by reason of the temporary injunction, should it be finally determined that such injunction ought not to have been issued. In an action on the injunction bond, it is obvious that such injuries as are occasioned by defendant\u27s being deprived of dominion over the property are compensable. However, a more difficult problem is put to the court when it must decide whether attorney fees incurred for procuring dissolution of the temporary injunction are similarly within the condition of the bond. It is with this latter problem that this comment is concerned