stock of national banks to be taxed without allowing any deduction for the debts of the stockholders where such deduction is allowed in relation to other moneyed capital, are void in toto so far as relates to national banks. To hold the law valid except as to those who are actually indebted and actually claim the benefit of the deduction, and actually set it up in a suit brought by the bank for relief, is practically to render the condition of the act of Congress nugatory, and to deprive the national banks and their stockholders of its protection. The tax though laid on the stockholders is required to be paid by the bank itself, which must pay without deduction unless the shareholders give the bank notice of the amount of their debts. This is a most ingenious expedient to avoid such deductions altogether. The probability that not one in ten of the shareholders will ever have notice of the assessment in time to make the claim, and the natural reluctance they would have (if they had notice) to lay the amount of their debts before a board of bank officers will effectually secure the State from claims for deduction. And that was no doubt the object of the law. But this unequal operation of it, in its practical effect, might not be sufficient to render it void. It is void, in my judgment, because it makes no exception but is general in its terms, subjecting to taxation the capital stock of national banks without the privilege of deducting debts. Denying to it operation and effect as to those who desire to claim the benefit of the deduction, and giving it effect as to all others, is to tear a portion of the law out by the roots. It is not like the case where a portion of a law which may be separated from the rest can be declared invalid without affecting the remainder of the law; nor like the case of a general law which the Legislature has power to make, but from the operation of which some individuals may have a legal or constitutional exemption which they can plead in their defense; but it is wrong in form, wrong in toto. The Legislature had no authority or power to make the capital of national banks taxable except in the same manner as other moneyed capital of the State. The practical iniquity of the law is seen in this, that it affects the value of all the stock, whoever holds it. As the law stands it acts as a prohibition against the purchase of the stock by those who owe debts, and they constitute a considerable portion of every community. It does not help the validity of the law for us to declare that it is pro tanto void, and in fact make a new law for the State. Its validity must be decided by its actual form and terms. If these cannot stand the law is void.

HILLS V. NATIONAL ALBANY EXCHANGE BANK. In an action by a national bank against State tax officers, in behalf of its shareholders, to enjoin the collection of a State tax on the shares of the bank alleged to be unlawful on the ground that indebtedness was not deducted. Held (1), That such a suit was maintainable. (2) That an injunction would lie in behalf of a shareholder who was entitled to a deduction and who had made the affidavit and demand therefor required by the State law, and (3) it being clearly shown that an affidavit and demand would have been unavailing, that shareholders might be permitted to show in the action the deductions to which they were entitled and the collection of the amount of such deductions would be enjoined.

Albany Exchange Bank, and the present suit was brought to enjoin the appellants from collecting a similar tax assessed and yet unpaid for that year. In this case the bank sued in right of and as representing all the stockholders, and the Circuit Court made a decree perpetually enjoining the collection of all taxes on shares of said bank. Several questions are raised or rather suggested which we think have heretofore been decided by this court, such as the right of the bank to maintain a suit on behalf of its shareholders. This was established by the cases of Cumming v. National Bank, 101 U. S. 153; Pelton v. National Bank, id. 143. There is also an attempt to show that there was a settled rule or purpose on the part of the assessors to value the shares of the appellee bank higher in proportion to their real value than in the case of other banks, bankers and moneyed corporations. We think the proof fails to establish this in a manner to justify the interference of a court of equity. National Bank v. Kimball, 103 U. S. 732.

The bill however in its main feature asserts the right to an injunction, on the ground that the act of 1866, under which the bank shares were assessed, is absolutely void because it makes no provision for deduction from the assessed value of these shares, of the debts honestly owing by the shareholders. And the court, proceeding upon the idea that both the statute and the assessment made under it are absolutely void, decreed relief accordingly. Under the ruling just made on that subject this decree must of course be reversed, because as to the larger number of the shareholders whose taxes are enjoined, there is no evidence that they owed any debts whatever at the time the assessment was made.

The allegations of the bill on this subject are: First. That one shareholder owning five hundred and thirtytwo shares of the stock made affidavit that the value of personal estate owned by him, including said bank shares, after deducting his just debts and other investments not taxable, did not exceed one dollar, and presented said affidavit to the board of assessors, with a demand that they should reduce the assessment of his shares accordingly, which was refused. The evidence shows this to have been Mr. Chauncey P. Williams.

2. The further allegation of the bill on that subject is that other shareholders were indebted to an amount equal to or in excess of the personal property owned by them, including their bank shares, but omitted to make affidavit and demand the proper reduction, because they knew such demand would be refused by the board, both from information of their refusal in other cases, and from knowledge of the decisions of the Court of Appeals of New York that they had no authority to make such deduction. This allegation is also supported by the evidence of four or five shareholders who are represented in this action.

While the decree of the court enjoining the collecting officers as to all the tax assessed on the shares of this bank must be reversed, the question arises, what shall be done with the cases in which it appears that there are shareholders taxed who owed just debts entitled to deduction.

With regard to the case of Mr. Williams, we have no doubt that there should be an injunction to the amount of his tax. He made the requisite affidavit and the proper demand for deduction, and his affidavit shows that no assessment should be made on his shares. He has not yet paid the money and is entitled to relief by injunction.

A more difficult question is presented in regard to those who made no affidavit or demand for deduction, but who have shown that they would have been entitled to deduction if the demand had been properly made. The question is, whether the fact clearly established that their demand would have been unavailing dispensed with the necessity of making the affidavit and

demand. It is a general rule that when the tender of performance of an act is necessary to the establishment of any right against another party, this tender or offer to perform is waived or becomes unnecessary, when it is reasonably certain that the offer will be refusedthat payment or performance will not be accepted. Such is the doctrine established by this court in repeated decisions in regard to another branch of the law concerning the collection of taxes. Bennett v. Hunter, 9 Wall. 326; Tacey v. Irwin, 18 id. 549; Atwood v. Weems, 99 U. S. 183.

Without elaborating the matter we are of opinion, that considering the decision of the Court of Appeals of New York, the action of the assessors in the case of Mr. Williams, and their own testimony in this case, it is entirely clear that all affidavits and demands for deduction which could or might have been made would have been disregarded and unavailing, and that the assessors had a fixed purpose, generally known to all persons interested, that no deductions for debts would be made in the valuation of bank shares for taxation. It is therefore not now essential to show such an offer when it is established that there were debts to be deducted and when the matter is still in fieri, the tax being unpaid. And we are of opinion that it is open to the court below when this case returns to permit such amendment of the pleadings as will enable plaintiff to make proper allegations on that subject, or by reference to a master to allow each shareholder to establish the amount of deduction to which he was entitled at the time of the assessment, and to enjoin the collection of a corresponding part of the tax. But as the assessment is not void, but only voidable, it must stand good for all of the assessment in each case which is not shown to be in excess of the just debts of the shareholder that should be deducted.

The decree of the Circuit Court is reversed, and the case remanded for further proceedings in accordance with this opinion.

EVANSVILLE NATIONAL BANK V. BRITTON.

The Indiana statute relating to taxation provides that a tax payer may, in estimating his taxable property, deduct his indebtedness from his "credits or money at interest;" "all other demands against persons or body corporate;" "total amount of all credits."

Held, that the shares in a national bank, subjected to State taxation, were entitled to a deduction of indebtedness, and an injunction would lie to restrain the collection of a tax upon such shares where such deduction was not allowed. PPEALS from the Circuit Court of the United States for the District of Indiana. The opinion states the case.

A

MILLER, J. These are cross-appeals from a decree of the Circuit Court for the District of Indiana, rendered in a suit in chancery, in which the Evansville National Bank was complainant and Britton, as treasurer of Vanderburgh county, was defendant.

The case is in all essential points analogous to that of Hills v. National Albany Exchange Bank, just decided. And the principal question of law is the same as that discussed and decided in the case of Supervisors of Albany v. Stanley. In fact the three cases were advanced out of their order, and heard consecutively, because they involved important questions concerning taxation by State statutes of the shares of national banks, and the argument, able and exhaustive throughout, has been almost wholly directed, on the part of the banks, to establish the proposition, that where the law of the State either makes or permits a discrimination operating only against a particular class of holders of national bank shares, in the manner of assessing those shares as regards other moneyed capital in the State, all the laws for such assessments are void, and all such assessments are absolutely void, and no tax on national bank shares can be collected in the State.

The brief of counsel in this case in various forms repeats the idea that the bill was brought, not so much to assert the rights of stockholders who may have been injured by the enforcement of the statute, as to obtain a judicial declaration of this court that the act is void, and the attempt to tax the shares of the bank equally so.

We have rejected this proposition in the case of The Supervisors against Stanley, and have there given our reasons for it, and shall not repeat them here.

The objection made to the Indiana statute is the same as that made against the New York statute, namely, that it permitted the tax payer to deduct from the sum of his credits, money at interest, or other demands, the amount of his bona fide indebtedness, leaving the remainder as the sum to be taxed, while it denies the same right of deduction from the cash value of bank shares.

A distinction is attempted to be drawn between the Indiana statute and the New York statute, because the former permitted the deduction of the tax payer's indebtedness to be made from the valuation of his personal property, while in Indiana he can only deduct it from his credits. And undoubtedly there is such a difference in the laws of the two States. But if one of them is more directly in conflict with the act of Congress than the other, it is the Indiana statute. The subject of taxation from which the tax-payer may deduct his bona fide indebtedness is, in the schedule of the act, placed under two heads, as follows:

"1. Credits or money at interest, either within or without the State, at par value.

"2. All other demands against persons or bodies corporate, either within or without this State. "Total amount of all credits."

The act of Congress does not make the tax on personal property the measure of the tax on bank shares in the State, but the tax on moneyed capital in the hands of the individual citizens. Credits, money loaned at interest, and demands against persons or corporations are more purely representative of moneyed capital than personal property, so far as they can be said to differ. Undoubtedly there may be much personal property exempt from taxation without giving bank shares a right to similar exemption, because personal property is not necessarily moneyed capital. But the rights, credits, demands and money at interest mentioned in the Indiana statute, from which bona fide debts may be deducted, all mean moneyed capital invested in that way.

It is unnecessary to repeat the argument in the case of Williams v. Weaver, 100 U. S. 539, on this point. We are of opinion that the taxation of bank shares by the Indiana statute without permitting the shareholder to deduct from their assessed value the amount of his bona fide indebtedness, as in the case of other investments of moneyed capital, is a discrimination forbidden by the act of Congress.

There is in the bill of complaint in this case the usual allegation, apart from the special matters we have just considered, that the assessing officers habitually and intentionally assess the shares of the national banks higher in proportion to their actual value than other property generally, and especially shares in other corporations. It is denied in the answer and is unsupported by proof.

It is also alleged that the bank is taxed a considerable sum for its real estate, and that in assessing the value of the shares no deduction is made on that account. The positive testimony of the assessor shows that such deduction was made.

It is alleged that the capital of the bank is almost entirely invested in the bonds and treasury notes of the United States, and the shares only represent this untaxable investment. The case of Van Allen v. Assessors, 3 Wall. 573, settles the principle that the

shares of the national banks are taxable without regard to the value of the property held by the bank as a corporation having exclusive relation to their value. The very point here made was expressly overruled in that case.

Acting upon these principles the Circuit Court decreed a perpetual injunction as to those shareholders who had proved in the case that at the time of the assessment they owed debts which should rightfully have been deducted. These were four in number, and the appeal of the collector Britton is from this injunction. The decree in that respect was right and must be affirmed.

The bank appeals from that part of the decree which dismissed the bill as to all the other shares. This was because no evidence was given that any other shareholders except the four above referred to owed any debts which could have been deducted from the value of the shares. In the case of Hills v. National Albany Exchange Bank, we authorized the court on return of the case to permit the bank to show what shareholders had such indebtedness in some appropriate form. It is not necessary to consider whether this case ought to be reversed at the instance of the bank to enable that to be done now, for it is stated by the counsel of the bank in their printed brief that the offer was made to them to have a reference to a master to take testimony on this point before final decree, and they declined to accept the privilege. That branch of the decree is therefore affirmed on the appeal of the bank.

WAITE, C. J., dissenting. I cannot agree to so much of the judgment in this case as affirms that part of the decree below appealed from by Britton, the treasurer. Credits" are but one of a number of kinds of moneyed capital. They represent, in the classification of taxable property, the ordinary debts due to a person, and it has beeu common for so long a time in the States to measure their taxable value by their excess over like debts owing to the same person in the same right, that I cannot believe it was the intention of Congress in its limitation on the power of taxing national bank shares to require a deduction of debts from the value of shares when such a deduction was only allowed to other persons from this one kind of moneyed capital. The law of Indiana expressly prohibits deductions from the value of any other property than credits. Ample provision is made for the taxation of all other moneyed capital at its value without deduction, the same as national bank shares. In Hepburn v. School Directors, 23 Wall. 485, this court said: "It could not have been the intention of Congress to exempt bank shares from taxation because some moneyed capital was exempt." In that case a tax on bank shares was sustained when, by law, mortgages, judgments, recognizances, and moneys owing on articles of agreement for the sale of lands were not taxable. I am unable to distinguish this case in principle from that. The exemption here is partial only as it was there.

I am authorized to say that Mr. Justice Gray coucurs in this dissent.

SPECIAL DEPOSIT IN TRUST NOT ATTACHABLE BY GENERAL CREDITOR OF DEPOSITOR.

NEW YORK SUPREME COURT, SPECIAL TERM, FEBRUARY 23, 1882.

HURD V. FARMERS LOAN AND TRUST Co.

A New Jersey municipal corporation which had issued bonds, the interest and principal of which was payable at the office of a trust company in New York, deposited money with such trust company which accepted the same for that

purpose to pay interest on such bonds due the following day. Held, that the deposit was a special one for the benefit of the bondholders, and the same could not be attached by a general creditor of the city.

ACTION tried at Special Term in the First District

to reach funds in the hands of defendant, a New York trust company, claimed to belong to the city of Elizabeth, a New Jersey municipal corporation, of which city plaintiff was a creditor.

George Putnam Smith and A. J. Vanderpoel, for plaintiff.

Herbert Turner, for defendant.

LAWRENCE, J. In the case of Martin v. Funk, 75 N. Y. 134, the Court of Appeals held that where a trust is declared, whether in a third person or in the donor, it is not essential that the property should be possessed by the cestui que trust, or that the latter should be informed of the trust. It does not seem necessary, therefore, in this case to establish that the bondholders of the city of Elizabeth should have been aware of and have assented to the appropriation of the fund which is the subject of this controversy, to the payment of the interest on the bonds held by them. Watts v. Shipman, 21 Hun, 606. And this court held in Matter of Le Blanc, 14 Hun, 8, where the Erie Railway Company had declared a dividend and had deposited the money to pay the same with a banking firm in the city of New York, which money, before actual payment to the stockholders entitled to the dividends, was withdrawn by the company and subsequently passed with other property to a receiver of the road, that the fund so deposited should be regarded as specifically appropriated for the payment of the dividend, and that the stockholders acquired in equity a lien upon such fund to the extent of the amount to which they were respectively entitled, and that such lien followed the fund in the hands of the receiver. The decision Matter of Le Blanc case was affirmed by the Court of Appeals. See 75 N. Y. 598. It was also quoted with approbation in the case of People v. Merchants and Mechanics' Bank, 78 N. Y. 273. Again in the case of the Rogers Locomotive Works v. Kelly, 19 Hun, 399, where the treasurer of a railroad company deposited $25,000 with the defendants, who signed a receipt stating that they had received the money in trust, to apply the same for the payment of an equal amount of the coupons of the first mortgaged and consolidated bonds of the railroad company, the said money not to be subject to the control of the said company otherwise than for the payment of said coupons as above described, it was held that such deposit created a trust for the benefit of the holders of the coupons of said bonds, and that the fund was not liable to be attached in an action brought by a creditor of the company depositing it to enforce a debt due from it to him.

I am well aware that it may be said, in reference to the case last cited, that the receipt which was given by the depositories expressly declared that the money was received in trust, and that the same should not be subject to the control of the company otherwise than for the payment of said coupons. But it must be remembered, in the language of Chief Judge Church, in Martin v. Funk, supra, that "no particular form of words is necessary to constitute a trust, while the acts or words relied upon must be unequivocal, implying that the person holds the property as trustee for another." If therefore from the letter of the comptroller of the city of Elizabeth, and the acts of the defendant predicated upon that letter, a trust can fairly be implied on the part of the defendant to hold the fund on deposit for the specific purpose of paying the interest on the bonds, the trust is just as binding as if it had been specifically set forth in writing. After examining the evidence in this case and the stipulation

entered into by the parties, I am of the opinion that the fund sought to be held under the attachment was not subject to attachment at the suit of a general creditor of the city of Elizabeth, for the reason that it had been specifically appropriated by the comptroller, representing the commissioner of the sinking fund and the defendant, to the payment of the interest on the bonds of the city; and that after the transfer mentioned by Mr. Ralston it was not within the power of the commissioners of the sinking fund to recall the fund and to divest it of the trust with which it had been impressed. Matter of Le Blanc, 14 Hun, 9, and cases cited.

By the charter of the city of Elizabeth it is made the duty of the commissioners of the sinking fund to pay the interest on the bonds of the city, as the same become due and payable, out of any moneys in their custody belonging to the sinking fund of said city (Charter, p. 145). The charter also provides that all moneys received thereafter from the following sources, to wit, the net amount received for market and other rents, dues and fees, the amount received for licenses of every kind and description, together with all moneys authorized to be raised for the payment of the general debt, and loans of the city, are pledged and appropriated to and shall constitute and form a fund to be called "The Sinking Fund of the City of Elizabeth."

Now I understand it to be admitted by the stipulation that the money which was in the hands of the defendant when the comptroller's letter was received, and also the money represented by the check accompanying that letter, had been raised for the payment of the debts of the city of Elizabeth; that the transfer on the books of the defendant was made before the plaintiff's attachment was served, and that the bonds and coupons mentioned in the letter of Mr. Leggett, dated September 28, 1878, were by their terms made payable, principal and interest, at the office of the defeudant at the city of New York. When the attachment was served therefore the transfer as between the city and the commissioners of the sinking fund, represented by the comptroller and the defendant, was complete. The comptroller had really directed a deposit with the defendant of moneys which were by law applicable to the purpose, to meet the interest due upon the bonds of the city on the following day, and the defendant had accepted that deposit for that specific purpose by transferring the amount already in its hands to the account of the sinking fund, and by adding to that amount the check for $11,045.68 which was inclosed in the comptroller's letter. On the authorities above cited I feel warranted in holding that this transaction amounted to a special deposit for the benefit of the bondholders, and that the defendant accepted it for that purpose and upon that trust. If the cases in Pennsylvania and in other States hold a different doctrine from that enunciated in the case of Le Blanc and the other cases above cited, I must of course disregard them. See also Carroll v. Cone, 40 Barb. 220; Watts v. Shipman, 21 Hun, 606, per Ingalls, J.

The case of Kelly v. Roberts, 40 N. Y, 432, does not seem to me to be in conflict with these views. There Judge James, in delivering the opinion of the court, expressly says that "had the debtors and the defendant Roberts made it a condition of the sale of the goods of the former to the latter that the defendant should pay a designated part of the consideration of the sale to Arnold, Constable & Co., and a part to Cannings, Simpson & Armstrong, the cases of Berly v. Taylor, 5 Hill, 577; Williams v. Fitch, 18 N. Y. 546; Lawrence v. Fox, 20 id. 268; Gridley v. Gridley, 24 id. 130, and Lowery v. Steward, 25 id. 239, would seem to warrant the proposition that a trust was created for the benefit of the two firms, which they might affirm

and enforce, and that a suit in equity would lie in their favor." And he goes on to say that there was no trust or condition annexed to the sale. In this case Leggett in his letter directs the defendant's president to apply the check for $11,045.68 contained in the letter, "with amount to our credit ($49,375) to payment of October 1st as per statement." Then follows a statement of the bonds referred to. Upon receipt of this letter and before the plaintiff's attachment is served, the defendaut has complied with the direction by transferring the $49,375 to the credit of the commissioners of the sinking fund and by directly depositing the check for $11,045.68 to their credit. This transaction seems to fall within the principle of the cases referred to by Judge James, and also within that of Le Blanc. Here there was a condition annexed to the transaction, which condition was immediately complied with by the defendant. In the case of Kelly v. Babcock, 49 N. Y. 318, it was left optional with the vendee whether a portion of the purchase-money should be paid to the creditors of the vendor, and the court held that as there was no express stipulation or covenant on the part of the vendees to pay those creditors, no trust resulted in favor of the latter, and that the unpaid balance of the purchase-money was a debt due to the vendor, and could be reached by attachment against his property.

That case therefore does not affect the case at bar. For the reasons above stated I am of the opinion that the defendant is entitled to judgment.

UNITED STATES SUPREME COURT ABSTRACT.

INJUNCTION BOND-PRACTICE- -POWER OF COURT OF EQUITY AS TO ASSESSMENT OF DAMAGES APPEAL.When the court sees no just cause for superseding or suspending the effect of an injunction boud or undertaking, it should be enforced in pursuance of its terms; and the party for whose benefit it was given will be entitled to an assessment of damages. In this case where there was an injunction upon the issuing of which a bond was given, a decree was made by the Circuit Court, that among other things neither party was entitled to damages or costs. From this part of the decree defendant appealed, contending that the Circuit Court had no power to decree that he was not entitled to damages, thereby precluding him from recovering damages on the injunction bond; and if it had any power to make a decree on the subject of damages, the decree denying him damages in this case is erroneous. In respect to this the court held that the Circuit Court had the power exercised, saying “that an appeal does not lie from a decree in equity as to the costs merely, is well settled. Canter v. Amer. Ins. Co., 3 Pet. 307; Elastic Fabrics Co. v. Smith, 100 U. S. 112.” Where no bond or undertaking has been required, it is clear that the court has no power to award damages sustained by either party in consequence of the litigation, except by making such a decree in reference to the costs of the suit as it may deem equitable and just." The court then review the history and object of this kind of obligations, referring to Kerr on Injunction, 209, 210, 212, 622; Gilb. For. Rom. 196; Bacon's Abr. title Injunction C.; Newland's Ch. Pr. 223, 224; Story's Eq. Jur., $$ 958 b, 959 d; Marquis of Downshire v. Lady Sandys, 6 Ves. 107; Wombell v. Belasyse, 6 id. 110, note; Wilkins v. Atkin, 17 Ves. 422, and various State statutes. The court then say: "But no act of Congress, or rule of this court, has ever been passed or adopted on this subject. The courts of the United States therefore must still be governed in the matter by the general principles and usages of equity. To these we have already adverted so far as concerns the power to

require security or impose terms before granting an injunction. It remains to notice the control which a Court of Chancery may exercise in relieving from, or modifying such terms during the progress or at the termination of the cause; and of enforcing and carrying out the conditions imposed or the undertakings entered into. Since the discretion of imposing terms upon a party, as a condition of granting or withholding an injunction, is an inherent power of the court, exercised for the purpose of effecting justice between the parties, it would seem to follow, that in the absence of au imperative statute to the contrary, the court should have the power to mitigate the terms imposed, or to relieve from them altogether, whenever in the course of the proceedings it appears that it would be inequitable or oppressive to continue them. Besides the power to impose a condition implies the power to relieve from it. If for example it is deemed proper upon an application for an injunction to require, as a condition of granting or withholding it, that a sum of money should be paid into court, or that a deed or other document should be deposited with the register, and the developments of the case are afterward such as to made it manifestly unjust to retain the fund or document and deprive the owner of its use, the court assuredly has the power (though undoubtedly to be exercised with caution), to order it to be delivered up to the party. When the pledge is no longer required for the purposes of justice the court must have the power to release it and leave the parties to the ordinary remedies given by the law to litigants inter sese. Where the fund is security for a debt or a balance of account, or other money demand, this would rarely be allowable; but in many other cases it might not unfrequently occur that injustice would result from keeping property impounded in the court. On general principles the same reason applies, where, instead of a pledge of money or property, a party is required to give bond to answer the damage which the adverse party may sustain by the action of the court. In the course of the cause, or at the final hearing, it may manifestly appear that such an extraordinary security ought not to be retained as a basis of further litigation between the parties; that the suit has been fairly and honestly pursued or defended by the party who was required to enter into the undertaking, and that it would be inequitable to subject him to any other liability than that which the law imposes in ordinary cases. In such a case it would be a perversion, rather than a furtherance of justice, to deny to the court the power to supersede the stipulation imposed. Against this view however the appellants have strenuously urged the case of Novello v. James, 5 DeGex, M. & G. 876." This case the court say was decided on its merits and is not adverse to the view above taken. The court further say: "Where no specific provision is made, either in the bond or by any statute or rule of court, and the condition of the bond is simply to pay such damages as the parties enjoined may sustain by reason of the injunction if the court finally decide that the party was not entitled thereto, as before stated some difference of opinion exists as to the power of the Court of Chancery to assess the damages, and whether the only proper method is not an action at law ou the bond." The appellants insist that the latter is the only proper and legal course. In the case of Bien v. Heath, 12 How. 179, Chief Justice Taney made this remark: "A court proceeding, according to the rules of equity, cannot give a judgment against the obligors in an injunction bond when it dissolves the injunction. It merely orders the dissolution, leaving the obligee to proceed at law against the sureties, if he sustains damage from the delay occasioned by the injunction." In that case an injunction bond had been given to stay proceedings on an executory process in the Circuit Court for the District of Louisiana, and in an action on the boud that court had given judgment against the

sureties, not merely for the damages arising from the delay caused by the injunction, but for the whole debt, interest and costs, in accordance with the law of Louisiana, where injunction bonds are binding to that extent, and where judgment is usually given against the sureties as parties to the cause, on dismissing the injunction, similar to the proceeding against stipulators in admiralty. This court held that the Circuit Courts sitting in equity could not take such a bond, or give it such effect, and reversed the judgment. The remark that the bond must be prosecuted at law was a mere passing remark; it was so prosecuted in that case; but from the great experience of the chief justice, it undoubtedly expressed the prevailing practice with regard to ordinary injunction bonds given under the Maryland statute in cases of injunctions to stay proceedings at law. Whether the remark can be understood as having a wider scope is doubtful. A decision on the point however was made by Mr. Justice Curtis, on the first Circuit, in the case of Merrifield v. Jones, 2 Curtis's C. C. 306. That was a patent case in which an injunction had been issued upon condition of entering into bond to pay the defendant any damages he might suffer by reason of the injunction if finally determined not to be rightful. On dismissal of the bill, motion was made to refer to a master the question of damages. Justice Curtis denied the motion, holding that the party's remedy was an 'action at law, but he only referred to the case of Bien v. Heath. The opinion is brief, and the question does not seem to have been very fully examined. The learned justice seemed to think, that inasmuch as the bond gave a legal action, the court sitting in equity had no jurisdiction over the question of damages. Other cases are referred to by the counsel of the appellants to sustain their position; but (upon a careful examination we are not satisfied that they furnish any good authority for disaffirming the power of the court having possession of the case, in the absence of any statute to the contrary, to have the damages assessed under its own direction. This is the ordinary course in the Court of Chancery in England, by whose practice the courts of the United States are governed, and seems to be in accordance with sound principle. The imposition of terms and conditions upon the parties before the court is an incident to its jurisdiction over the [case; and having possession of the principal case, it is fitting that it should have power to dispose of the incidents arising therein, and thus do complete justice, and put an end to further litigation. We are inclined to think that the court has this power; and that it is an inherent power, which does not depend on any provision in the bond that the party shall abide by such order as the court may make as to damages (which is the usual (formula in England); nor on the existence of an express law or rule of court (as adopted in some of the States) that the damages may be ascertained by reference or otherwise, as the court may direct; this being a mere appendage to the principal provision requiring a bond to be taken, and not conferring the power to take one, or to deal with it after it has been taken. But whilst the court may have (we not do now undertake to decide that it has) the power to assess the damages, yet if it has that power, it is in its discretion to exercise it, or to leave the parties to an action at law. No doubt in many cases, the latter course would be the more suitable and convenient one. In the present case however the court did not attempt to assess any damages which the defendants may have sustained in consequence of the injunction and proceedings in the cause, but decreed that it was not a case for damages; in other words that the bond ought not to be prosecuted. That damages were sustained is very probable. Such a litigation as this was could hardly fail to result in damage to all the parties engaged in it. But it is generally damnum absque injuria. The question before the court, or at least that which