It is strenuously urged, however, and this was in effect the view taken by the court below, that although the rule against allow ing attorneys' fees in actions on injunction bonds was thus settled by this court adversely to the right to recover such fees, as the local law was to the contrary, the injunction bond given in the Federal court must be enforced, not by the law of the forum in which it was given, but according to the rule of the local law. This proposition, again, however, but embodies the contention that the question of the allowance of attor neys' fees involved no Federal question, which has already been disposed of. For "In Arcambel v. Wiseman, 3 Dall. 305, 1posite rule is forbidden by the analogies of L. ed. 613, decided by this court in 1796, the law and sound public policy." it appeared by an estimate of the damages upon which the decree was founded, and which was annexed to the record, that a charge of $1,600 for counsel fees in the courts below had been allowed.' This court held that it ought not to have been allowed.' The report is very brief. The nature of the case does not appear. It is the settled rule that counsel fees cannot be included in the damages to be recovered for the infringement of a patent. Teese v. Huntingdon, 23 How. 2, 16 L. ed. 479; Whittemore v. Cutter, 1 Gall. 429, Fed. Cas. No. 17,600; Stimpson v. The Railroads, 1 Wall. Jr. 164, Fed. Cas. No. 13,456. They cannot be allowed to the gaining side in admiralty as incident to the judg-if it be true, and it undoubtedly is, that the ment beyond the costs and fees allowed by the statute. The Baltimore, 8 Wall. 378, sub nom. The Baltimore v. Rowland, 19 L. ed. 463. giving of such a bond was an act done pursuant to an authority exercised under the Constitution and laws of the United States, it must follow that the bond so taken is to "In actions of trespass where there are be interpreted with *reference to the author-[513] no circumstances of aggravation, only com-ity under which it was given and the prin pensatory damages can be recovered, and ciples of jurisprudence controlling such authey do not include the fees of counsel. thority, and not by the local law. To hold The plaintiff is no more entitled to them, if the contrary, as we have previously pointed he succeed, than is the defendant if the out, would be but to declare that although plaintiff be defeated. Why should a dis- the power conferred by Congress upon this tinction be made between them? In certain court to adopt equity rules is controlling, actions ex delicto vindictive damages may be nevertheless the interpretations of the rules given by the jury. In regard to that class and the limitations which arise from a propof cases this court has said: 'It is true that er construction of them, as expounded by damages assessed by way of example may this court and enunciated in its decisions, indirectly compensate the plaintiff for money are without avail. And this yet further expended in counsel fees. but the amount of points out the fallacy involved in the conthese fees cannot be taken as the measure tention that the lower court, in passing upon of punishment or a necessary element in its the issues, decided merely a question of geninfliction.' Day v. Woodworth, 13 How. eral law involving no Federal controversy. 370, 371, 14 L. ed. 185. Now it is at once conceded that the deci[512] *"The point here in question has never been sion by a state court of a question of local expressly decided by this court, but it is or of general law involving no Federal eleclearly within the reasoning of the case last ment does not as a matter of course present a referred to, and we think is substantially Federal question. But where, on the contrary, determined by that adjudication. In debt, a Federal element is specially averred and escovenant, and assumpsit damages are recov-sentially involved, the duty of this court to ered, but counsel fees are never included. So in equity cases, where there is no injunction bond, only the taxable costs are allowed to the complainants. The same rule is applied to the defendant, however unjust the litigation on the other side, and however large the expensa litis to which he may have been subjected. The parties in this respect are upon a footing of equality. There is no fixed standard by which the honorarium can be measured. Some counsel demand much more than others. Some clients are willing to pay more than others. More counsel may be employed than are necessary. When both client and counsel know that the fees are to be paid by the other party there is danger of abuse. A reference to a master, or an issue to a jury, might be necessary to ascertain the proper amount, and this grafted liti gation might possibly be more animated and protracted than that in the original cause. It would be an office of some delicacy on the part of the court to scale down the charges, as might sometimes be necessary. "We think the principle of disallowance rests on a solid foundation, and that the op apply to such Federal question its own conceptions of the general law we think is incon trovertible. Avery v. Popper, 179 U. S. 305, 315, 45 L. ed. 203, 207, 21 Sup. Ct. Rep. 94. Whilst, in the absence of authority, the foregoing considerations suffice to dispose of the case, it is also effectually concluded by authority. Bein v. Heath, 12 How. 168, 13 L. ed. 939. In that case, as in this, it was insisted that the local law should have been applied in construing and enforcing an injunction bond given in a court of the United States. But the court, in negativing the contention, speaking through Mr. Chief Jus tice Taney, said (p. 178, L. ed. p. 944): "Now, there is manifest error in subjecting the parties to an injunction bond, given in a proceeding in equity in a court of the United States, to the laws of the state. The proceeding in a circuit court of the United States in equity is regulated by the laws of Congress and the rules of this court made under the authority of an act of Congress. And the 90th rule declares that, when not otherwise directed, the prac tice of the High Court of Chancery in Eng- said restraining order or said temporary inland shall be followed. The 8th rule author- junction ought not to have been granted." izes the circuit court, both judges concurring, There was a verdict and judgment against to modify the process and practice in their Tullock, one of the sureties in the bond. respective districts. But this applies only Mulvane, the plaintiff, being dissatisfied [514]to forms of proceeding and *mode of practice, with the amount of the verdict and the ruland certainly would not authorize the adop-ings of the trial court, prosecuted a writ of tion of the Louisiana law, defining the rights error to the supreme court of Kansas, where and obligations of parties to an injunction the judgment was reversed and the cause rebond. Nor do we suppose any such rule manded for another trial. Mulvane v. Tulhas been adopted by the court. And if it lock, 58 Kan. 622, 50 Pac. 897. That court has, it is unauthorized by law, and cannot said: regulate the rights or obligations of the parties. "And when an injunction is applied for in the circuit court of the United States sitting in Louisiana, the court [may] grant it or not, according to the established principles of equity, and not according to the laws and practice of the state in which there is no court of chancery, as contradistinguished from a court of common law. And they require a bond, or not, from the complainant, with sureties, before the injunction issues, as the court, in the exercise of a sound direretion, may deem it proper for the purposes of justice. And if, in the judgment of the court, the principles of equity require that a bond should be given, it prescribes the penalty and the condition also. And the condition prescribed by the court in this case, but which was not followed, is the one usually directed by the court. "In proceeding upon such a bond, the court would have no authority to apply to it the legislative provisions of the state." Indeed, the principles announced in Bein v. Heath were in effect but the reiteration of the doctrine previously established by this court, that a bond given in pursuance of a law of the United States was governed, as to its construction, not by the local law of a particular state, but by the principles of law as determined by this court, and operative throughout the courts of the United States. Cor v. United States, 6 Pet. 172, 8, L. ed. 359; Duncan v. United States, 7 Pet. 435, 8 L. ed. 739. "That counsel fees are recoverable as damages upon an injunction bond has been the uniform holding of this court from the beginning, and this appears to be the view taken by most of the courts of the country. Underhill v. Spencer, 25 Kan. 71; Loofborow v. Shaffer, 28 Kan. 71; Loofborow v. Shaffer, 29 Kan. 415; Nimocks v. Welles, 42 Kan. 39, 21 Pac. 787; 10 Am. & Eng. Enc. Law, p. 999, and cases cited. It appears, however, that there are some decisions of the Federal courts to the contrary, holding that the obligation of an injunction bond imposes no duty upon the obligor to pay the attorney's fees if the injunction is wrongfully obtained. Arcambel v. Wiseman, 3 Dall. 306, 1 L. ed. 613; Oelrichs v. Spain, 15 Wall. 211, sub nom. Oelrichs v. Williams, 21 L. ed. 43. It is contended that, as the bond was given in a case in one of the Federal courts, the obligation must be interpreted in accordance with the decisions of those courts. The claim is that the rules and decisions of the Supreme Court of the United States have the force of legislative declarations; that they enter into, and become a part of, the *contract of the sureties. [516] who can only be held liable for such consequences as are the direct result of the breach and were within their contemplation at the time the bond was executed. No statute, however, prescribed the conditions of the bond nor limited the extent of liability thereon. It is true that it was within the general equitable power of the Federal court to prescribe the conditions upon which the It follows from what we have stated that injunction should issue. It could have there was error committed in allowing the granted an injunction without requiring a recovery of attorneys' fees as an element of bond, or it might, in its discretion, have imdamage upon the bond in question. The posed such terms as it saw fit as a condition judgment of the Supreme Court of Kansas of granting the injunction. It did require must be reversed, and the case remanded to the giving of a bond, and the bond was exethat court for further proceedings not in-cuted in accordance with the order of the consistent with this opinion, and it is so court. The bond excuted is in the ordinary ordered. form; is in the nature of a contract; and the liability of the obligors depends, not on the Federal Constitution or a congressional act, but on the proper interpretation of the bond itself. In the absence of a statute fixing the measure of damages or limiting the recovery, we think the bond should be viewed in the light of an independent contract, and is to be interpreted by the general principles of the common law. It is not a mere incident of the injunction proceeding, nor can this, which is an ordinary action at law, be regarded as auxiliary to the proceeding in the Federal court. Being an independent contract, actionable in any state court where service upon the sureties [515] *Mr. Justice Harlan dissenting: This was an action in one of the courts of the state of Kansas upon an injunction bond executed in a suit in equity in the circuit court of the United States for the district of Kansas-the condition of the bond being that the obligors would pay, or cause to be paid, to the obligees, and to each of them, "all damages which they, or either of them, have already sustained, or may at any time sustain, by reason of the granting and issuing of said restraining order, or the granting and issuing of said temporary injunction, if it shall be finally decided that can be obtained, the interpretation of the assailed; but if it be admitted that the judg forum applies. As the action on the bond ment was valid, and those proceedings were could be brought in the state court,-and, regular, that the purchaser took the title indeed, the present action could not have of the defendant in the execution, and the been brought in any other, it cannot be issue relates to the title to the property, as said that the sureties contracted with refer between the defendant *in the execution or[518} ence to the view of the law taken by the the purchaser under it, and the party makFederal courts. They knew that the obliga-ing the adverse claim, no Federal question is tion was enforceable in the courts of the presented in other words, it must appear state of which the plaintiff and defendants that the decision was made against a right were all residents, and that the highest claimed under Federal authority, in the lancourt of that state had consistently held guage of Rev. Stat. § 709." Again: "This that counsel fees were recoverable upon an was a question either of local law or of geninjunction bond. That the bond was given cral law. If of local law, of course the deciin a Federal court, where a different rule of sion of the supreme court of Texas is bindinterpretation obtains, has not been deemed ing upon us. If of general law, as it into affect the state court in determining the volves no Federal element, it is equally bindliability upon such bond when suit was ing in this proceeding, since only Federal brought thereon. Mitchell v. Hawley, 79 rights are capable of being raised upon writs Cal. 301, 21 Pac. 833; Hannibal & St. J. R. of error to state courts. Conceding that, if [517]Co. v. Shepley, 1 Mo. App. 254; *Wash v. the question had arisen on appeal from a cirLackland, 8 Mo. App. 122; Aiken v. Leath- cuit court of the United States, we might ers, 40 La. Ann. 23, 3 So. 357; Corcoran v. have come to a different conclusion, it by no Judson, 24 N. Y. 106." In addition to Cor- means follows that we can do so upon a writ coran v. Judson, 24 N. Y. 106, cited by the of error to a state court, whose opinion upon state court, see Coates v. Coates, 1 Duer, a question of general law is not reviewable 664; Edwards v. Bodine, 11 Paige, 224, and here." Sedgw. Damages, 177; also Barton v. Fisk, Surely this case does not involve a Fed30 N. Y. 171; Behrens v. McKenzie, 23 Iowa, eral immunity simply because the bond in suit. 342, 92 Am. Dec. 428; Ford v. Loomis, 62 was taken under the authority of the cirIowa, 588, 16 N. W. 193, 17 N. W. 910; cuit court of the United States. If it does, Cook v. Chapman, 41 N. J. Eq. 154, 2 Atl. then this court erred in its decision in Prov286; Noble v. Arnold, 23 Ohio St. 270; Mor-ident Sav. L. Assur. Soc. v. Ford, 114 U. ris v. Price, 2 Blackf. 457; Derby Bank v. Heath, 45 N. H. 524; Ryan v. Anderson, 25 Ill. 372; Garrett v. Logan, 19 Ala. 344. S. 635, 29 L. ed. 261, 5 Sup. Ct. Rep. 1104 (reaffirmed in many subsequent cases), in which it was contended that a suit upon a At the second trial Mulvane obtained a judgment rendered by a Federal court necesverdict and judgment which embraced his sarily involved questions arising under the counsel fees in the injunction suit, and that laws of the United States. That contention judgment having been affirmed by the su- was overruled. This court, speaking by Mr. preme court of Kansas (61 Kan. 650, 60 Justice Eradley, said: "What is a judg Pac. 749), it is sought to have it reviewed ment but a security of record showing a by this court under § 709 of the Revised debt due from one person to another? It is Statutes, upon the ground that by the action as much a mere security as a treasury note, of the supreme court of Kansas the plaintiff or a bond of the United States. If A brings in error, Tullock, was denied an "immunity", an action against B, trover or otherwise, for belonging to him under an "authority exercised under the United States." The immunity so claimed is that he, Tullock, was erroneously held to be liable for the attor neys' fees which the obligee in such bond paid or became bound to pay in or about obtaining or dissolving the injunction in the suit in the Federal court. Can this court review the action of the state court upon any such a question? Is it true that the alleged "immunity" arises from an "authority exercised under the United States?" In Avery v. Popper, 179 U. S. 305, 314, 315, 45 L. ed. 203, 207, 21 Sup. Ct. Rep. 94, 97, 98, this court, speaking by Mr. Justice Brown, said: "With respect to writs of error from this court to judgments of state courts in actions between purchasers under judicial proceedings in the Federal courts and parties making adverse claims to the property sold, the true rule to be deduced from these authorities is this: That the writ will lie, if the validity or construction of the judgment of the Federal court, or the regularity of the proceedings under the execution, are the withholding of such securities, it is not, In Blackburn v. Portland Gold Min. Co. 175 U. S. 571, 44 L. ed. 276, 20 Sup. Ct. Rep. 222, it was held that the judgment of the supreme court of a state could not be re- There is no question in this case as to the validity of any authority exercised under the United States. The only question is as to the rights of one party and the liabilities of the other party under an ordinary injunction bond. What those rights and liabilities are cannot be determined by reference to the Constitution or any statute of the United States. Nor has any rule been adopted by the circuit court of the United States limiting the legal effect of the words of the bond or declaring what damages should be covered by it. Of course, if Congress had enacted a statute prescribing the form of injunction bonds, and directing what liabilities should arise thereon against the obligors, that statute would control. But no such statute has been passed, and the question is left to be determined by the principles of general law. Reference has been made to Oelrichs v. Spain, 15 Wall. 211, sub nom. Oelrichs v. Williams, 21 L. ed. 43, in support of the proposition that the question presents an "immunity" which exists under Federal authority. That case was brought in a circuit court of the United States. It does decide that attorneys' fees should not be allowed in a suit on injunction bonds. But there is in the opinion no hint even that the decision as to what damages can be allowed in such a suit rests upon a Federal ground. On the contrary, the court, after citing some authorities, says that "the principle of dis allowance rests on a solid foundation, and that the opposite view is forbidden by the analogies of the law and sound policy." [520] *We have been referred also to equity rule 90 of this court, which declares that "the practice of the circuit court shall be regulated by the present practice of the High Court of Chancery in England, so far as the same may reasonably be applied consistently with the local circumstances and local convenience of the district where the court is held, not as positive rules, but as furnishing just analogies to regulate the practice." I cannot perceive that this rule has any pertinency, as it relates merely to practice, and not to the principles of law by which the rights and obligations of parties to injunction bonds are determinable. court held that "in proceeding upon such a Cases have been cited which show that Meyers v. Block, cited in the opinion, shows that our jurisdiction in that case was maintained solely because the case involved the question whether the injunction bonds there in suit were in conformity with the order of the Federal court in which they were taken. In New York L. Ins. Co. v. Hendren, 92 Bein v. Heath, 12 How. 168, 179, 13 L. ed. U. S. 287, 23 L. ed. 709, which was brought 939, 943, has been cited as showing that in here from the highest court of Virginia, it allowing attorneys' fees the state court in- was said: "The case, therefore, having b en vaded a Federal right. That was a suit presented to the court below for decision in the circuit court of the United States on upon principles of general law alone, and it an injunction bond taken in the same court. nowhere appearing that the Constitution, The trial court determined the case accord- laws, treaties, or executive proclamations ing to a statute of Louisiana defining the of the United States were necessarily inrights and obligations of the parties. This volved in the decision, we have no jurisdic tion." In United States v. Thompson, 93 | between this court and some of the state *courts upon certain questions of general law.[523] Let it be observed that the jurisdiction of the state court, as between the parties and as to the subject-matter, is not disputed. The question before it was as to the extent of the liability of the suretics in the injunction bond. The decision of that question did not depend, in any degree, upon the Constitution or statutes of the United States. It depended entirely upon the meaning of the words of the bond, and the principles of law applicable to such an instrument. It was manifestly, therefore, a question of general law as distinguished from Federal law. Upon such a question the state court was entitled to give effect to its own views. The question could not become a question of Federal law by reason alone of the fact that the bond was executed under the authority of the circuit court; for, as already said, neither the order under which the bond was taken, the validity of the bond, nor the authority of the court was disputed. Nor could it become a Federal question because of any decision by this court in cases theretofore decided between other parties. Suppose this court had not, prior to the trial of this case, expressed any opinion upon that question of general law. Could it then have been contended that the judgment complained of denied any Federal immunity? If not, then the Federal immunity now claimed arises entirely from the failure of the state court to take the same view of a Or, suppose two actions were brought in the Federal court (there being diversity of citizenship in each case), one on an injunction bond, executed in a circuit court of the United States, and the other upon a like bond executed in a state court. What would be the ruling as to the measure of damages? Would the court disallow counsel fees in the first case and allow them in the second case where the highest court of the state had established the principle that counsel fees could be recovered? Each branch of the latter question must, upon the principles of the opinion just delivered, be answered in the affirmative. But they cannot be so answered without placing the decisions of the courts upon a question of general law on the same basis as a legislative enactment prescribing the measure of damages in suits on injunction bonds. Being unable to assent to the principle that a Federal immunity arises when a state court, in determining a question not involv ing the Constitution or laws of the United States nor the validity of an authority exercised under the United States, reaches a conclusion upon a question of general law different from that announced in prior cases by this court, and denying our authority to compel a state court to disregard its own views upon a question of general law, I am[524] constrained to dissent from the opinion and judgment. Mr. Chief Justice Fuller and Mr. Justice Brown concur in this opinion. SAMUEL MONROE and David M. Richardson, Late Copartners Trading as Monroe & Richardson, Appts., v. UNITED STATES. (See S. C. Reporter's ed. 524-530.) question of general law which this court Public contracts-approval of chief engi took in prior cases between other parties. neer of army. There has been a wide difference of opinion The approval of the chief of engineers of the |