Hirsch

I concur in the reversal of the judgment. The only possible consideration for the undertaking of the defendants was the continuance in force of the re- ■ straining order. Whether that was in fact the consideration was an issue clearly made by the pleadings, and that the fact was material cannot be doubted. But upon this material issue there is no finding. Matters of evidence are found from which the material fact, might be inferred, but that is not sufficient to support the judgment.

We dissent. We think the conclusion reached in Department correct, and adhere to the views expressed in the opinion there filed.

The following is the opinion filed in Department Two, December 17, 1896:

Action upon an injunction bond. The plaintiff had findings and judgment in its favor, and this appeal is from the judgment and an order denying defendants’ motion for a new trial.

The action in which said bond was given was brought by the Alaska Packers’ Association, a corporation, against the plaintiff herein, the Alaska Improvement Company, in the circuit court of the United States for the ninth circuit, northern district of California, the sole object of which was to obtain an injunction against the said Alaska Improvement Company enjoining and restraining it from using. a certain label and trademark, which the said Alaska Packers’ Association claimed the exclusive right to use, and which it was alleged said Alaska Improvement Company was then using in its said business, and had placed upon about five thousand cases of its salmon.

Said suit was commenced on the twenty-third day of October, 1893, and, upon filing the bill of complaint in said circuit court, *253 a temporary…

Action upon an injunction bond. Defendants appeal from the judgment and from an order denying a new trial.

An action was brought against plaintiff in the United States circuit court to enjoin it from using a certain trademark and label. October 23, 1890, a temporary restraining order was made, pending an order to show cause why an injunction pendente lite should not he issued. Both orders were served on that day. On the next day, counsel for the defendant in the injunction suit, plaintiff here, “moved the court for an order requiring complainant to give a bond, in the sum of ten thousand dollars conditioned for the payment to respondent of such damages as it may be awarded, by reason of the issuance of said temporary restraining order, if the court should finally determine that complain *250 ant was not entitled thereto.” The order was made as requested.

The bond sued upon was given in pursuance of that order. It recited the issuance of the restraining order and the order requiring the bond, and that “in consideration of the premises and of the issuing of said restraining order” the sureties undertake in the penal sum of ten thousand dollars, and promise for complainant that he…