Breese, J.
It is admitted on both sides, that the bond in suit is not a statutory bond, nor given in such a case as is specified in the statute. (Scates’ Comp. 147.) The injunction, in the first instance, was improvidently granted, and in a case not cognizable in a court of chancery, upon the condition that a bond “ conditioned according to law,” should be executed by the complainants. In the performance of this condition, this bond was executed, conditioned to pay to the appellants, for the use of the inhabitants of school district No. eight, “ all moneys and costs due or to become due, and such damages as shall be awarded against them, in case said injunction herein granted shall be dissolved,” etc.
A bond conditioned according to the law of such a case as that in which the injunction was awarded, should have provided only for the payment of such damages and costs as might be awarded on a dissolution of the injunction. But the obligors undertook further — they undertook to pay the obligees for the use of the inhabitants of school district No. eight, “ all moneys and costs due or to become due.” The question arises, due or to become due to whom ? Not to the obligees, for that is not the language of the bond, nor to the inhabitants of the school district, nor, in fact, to any one. The person or party to whom moneys and costs might be due is not stated, neither directly nor inferentially. And what moneys could become due to the obligees ? Certainly not the taxes assessed against the inhabitants of the school district. The principal obligee in the bond, Ryan, had no claim whatever to those taxes; he was the mere instrument by which they should be collected and paid into the township treasury. They were not moneys due or to become due to him, in any possible event, nor to any of his co-obligees, the appellants here. No proof was offered on the trial what moneys were due or became due to the obligees. The legal effect of the bond is not that the obligors will pay the taxes, if the injunction should be dissolved. There is no undertaking of that kind, nor doés it follow by any means, because the collec tion of the taxes assessed was delayed, that they were not or could not be collected after the injunction was dissolved. What is to prevent their collection ?
Then, if collected of the tax payers, as they may be, by what rule of justice should the obligors in this bond be required to pay them out of their own pockets to the obligees in this bond, to whom they did not belong, and who had no claim to them in law or equity ? We think the court decided correctly, in not going to the extent claimed by the plaintiffs in the assessment of the damages on the trial, but at the same time we are of opinion that the court did not go quite far enough in other respects, in awarding damages. We think the costs in litigating the injunction case, including counsel fees, presented a fair and just claim, and should have been allowed to the extent which might be proved as damages.
Those expenses were a damage to the collector, who had to defray them in the first instance, and to the inhabitants of the school district ultimately, as they would be bound to reimburse the collector. On this ground the judgment is reversed, with directions to hear evidence as to the extent of the damages really sustained, by necessary expenditures, or by liabilities incurred in litigating the injunction case, both in the Circuit and Supreme Courts. Judgment reversed.
The Chief Justice concurs in the reversal of this judgment, and in the allowance of costs and counsel fees as damages, but is not prepared to express a definite opinion as to the liability for the amount of taxes.
Walker, J., did not participate in the decision of this case.