Appellants complain that the Court below found damages equal to two per cent. per month for the time that the money was detainedin obedience to the restraining order.
It is shown by the evidence, that during all the time the money was so detained, the use of money was worth two per cent. a month on call. If that was the value of the use of the money, were not plaintiffs damaged to that amount? and if damaged to that amount, then, it follows that respondents ought and must pay that amount in order to comply with their undertaking, which is, to pay them (plaintiffs) all damages which they must sustain by reason of the order, if the Court shall finally decide, etc.
In the case of Smith v. Griffith, 3 Hill, 333, Nelson, Justice, on the subject of damages, says: " The damages should afford the plaintiff an adequate indemnity for the loss sustained at the time the injury happened; " and this is certainly in accordance with right and reason. If the value of the use of money (as is proved) was two per cent. per month, respondents could have got that much for the use of their money; and unless they can recover that amount in damages, they will have been placed against their will in that position--an anomaly in the common law--to suffer an injury without a remedy.
JUDGES: Field, J., after stating the facts, delivered the opinion of the Court. Terry, C. J., and Baldwin, J., concurring.
OPINION
FIELD, Judge
The appellants make the following points: First. That the restraining order was void, because made before the complaint in the suit of the creditors was filed; Second. That the Court has never decided that the plaintiffs in that suit were not entitled to the restraining order; and, Third. If the defendants are liable upon the undertaking, the rule of damages must be the legal interest of ten per cent. a year upon the money in Court.
The first point is untenable. The order could only take effect upon the filing of the complaint, and the bond or undertaking required, and it was unnecessary to delay the application to the Judge until after the complaint had been filed. When a restraining order or an injunction is sought upon the complaint itself, it is the usual practice to present the complaint, in advance of the filing, to the Judge, and obtain the order of the allowance of the writ; and with this practice the statute does not conflict. The order or writ can then be issued with the summons. Prac. Act, sec. 113.
The second point is also untenable. The Court, in adjudging that the judgment of the plaintiffs against Arronson was valid, and not fraudulent or collusive, and that they were entitled to the money in Court in substance, if not in terms, decided that the other creditors were not entitled to the restraining order.
But the third point is well taken. The only damages which the law allows for the detention of money under its process is the legal interest. The rule of damages, in such cases, like the one which obtains in actions upon promissory notes, is a fixed and arbitrary one. The actual loss occasioned may be much greater than the interest, but the consequences beyond that the law does not inquire into (Sedgwick on Damages, chap. 8). It would indeed often be impossible to determine the actual damages resulting from the detention of money; the party entitled to it may in consequence have been compelled to borrow on ruinous rates of interest; he may have become embarrassed in his business operations, ruined in credit, and perhaps driven into insolvency; but of these possible consequences the Courts cannot take notice. The legal interest in such cases is the only measure which can be followed with certainty, and, as a general rule, with safety. The judgment, therefore, must be modified. The allowance of the three hundred dollars was proper ( Summers v. Farish, 10 Cal. 353). This sum added to the interest on the money deposited in Court at the rate of ten per cent. a year from December 15, 1856, to April 29, 1857, must constitute the amount to which the judgment is to be reduced.
The cause is remanded to the Court below, with directions to modify the judgment in accordance with this opinion; the costs of the appeal to be allowed to the respondents.