read into the bonds, since it is beyond question that the bonds in this case were not required by the court nor given by the plaintiffs pursuant to the provisions of the Norris-LaGuardia Act. The rule that the language of a statute requiring a bond in a certain form must be read into any bond made pursuant to the statute is frequently applied in cases where the principal on the bond applies for and receives the contract, privilege, or benefit authorized by the statute on the condition expressed in the statute that the principal execute a bond in the terms provided by the statute. In such cases the person from whom the bond is required is conclusively presumed to have intended to execute the bond in the amount and upon the conditions demanded by the statute, the benefit of which he accepts; the language of the statute is written into the bond, though omitted by inadvertence or intention.
'The rule can not be applied in the present case. The issue before the courts on both the temporary restraining order and the temporary injunction was whether the Norris-LaGuardia Act controlled or the Sherman Act, as amended by the Clayton Act.
'Necessarily, when the courts decided that their jurisdiction on the question before them was limited only by section 20 of the Clayton Act, they also decided that the bonds required of the plaintiffs should be conditioned in accordance with the provisions of that Act.
'The fact that the decrees under which the bonds were given were erroneous does not entitle the defendants to recover the expenses and attorneys' fees incurred by them in resisting the decrees, nor in securing their reversal and the ultimate vacation of the orders issued. in conformity with the decrees. The loss, if any, caused defendants by the errors of the court is damnum absque injuria, one of the unavoidable incidents of litigation to which parties are exposed.'
That a bond must be construed in accordance with the authority under which it was given, was pointedly illustrated in Heiser v. Woodruff, 128 F.2d 178 (10th Cir., 1942), where plaintiff obtained a temporary injunction in a bankruptcy proceeding. Notwithstanding that the bond was conditioned for payment, inter alia, of reasonable attorney's fees, the Court noted that the Federal Courts 'have consistently held that attorney's fees are not an element of damages recoverable upon such a bond,' and denied recovery.
Since Judge Egan expressly held that the Norris-LaGuardia Act was without application, we think the order for entry of a bond covering 'reasonable counsel fees' was an act in excess of the Court's jurisdiction (as distinguished from want of jurisdiction), and was to that extent void. 'Although a court may have jurisdiction over the parties and the subject-matter, yet if it makes a decree which is not within the powers granted to it by the law of its organization, its decree is void': United States v. Walker, 109 U.S. 258, 266, 3 S. Ct. 277, 282, 27 L. Ed. 927 (1883). See also, Dauphin Deposit Trust Co. v. Myers, 388 Pa. 444, 462, 130 A.2d 686 (1957); 21 C.J.S. Courts § 25.
Defendants seek to invoke the general rule that 'by obtaining the contemplated benefits of a bond or undertaking posted, the obligor is estopped from denying its binding obligation.' The rule, we think, has no application here. Plaintiff is not attempting to deny the obligation of the bond. It is resisting the attempted inclusion in the bond of a provision which the Court, under the circumstances, had no authority to order, and without which plaintiff had the right to the issuance of the restraining order, on the Court's then view of the case.
NOW, March 19th, 1962, it is ordered and decreed that:
1. Defendants are not entitled to the assessment of attorney's fees as an element recoverable upon the within bond.
2. Defendants may proceed to the assessment of costs and damages properly recoverable upon the bond.
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