The defendant, Skolfield, as attorney in fact of Valentine Dallon, obtained a judgment against T. B Rhodes and others, on the 22d of June, 1844, but with a stay of execution until he should furnish a bond, with good and sufficient security, in the sum of $1000, for the indemnification of the defendants in that suit. On the 18th of July following, the bond required was filed with the clerk of the District Court, and on the next day an execution was sued out, and the sheriff was proceeding to advertize and sell the property of T. B. Rhodes, when, on the 1st of August ensuing, he enjoined the proceedings, on the ground that no execution could legally issue until he was notified of the filing of the indemnity bond, and sufficient tirria allowed for him to satisfy himself of the solvency of the secu*132rities given, and to make his objections to them; and that the bond was insufficient to protect him, &c.

On a hearing of the case, the injunction was dissolved, with five per cent damages on the, amount of the judgment enjoined and fifty dollars special damages, for counsel fees of defendant. The plaintiff has appealed.

There has been no dispute in this court as to the solvency of the securities given by the plaintiff in execution, in conformity with the terms of the judgment in his favor. The evidence clearly establishes that they are perfectly good; but the appellant contends that he should have been notified of the filing of the bond, in order to allow him an opportunity of examining the same, and of urging his objections to its sufficiency, before execution should have issued; that, under the circumstances, he could exercise his legal rights only by enjoining the execution, which issued untimely, and that he should not be made to pay damages.

In cases of this kind much difficulty would be avoided, if the judgment providing for the giving of the bond, named, with the consent of parties, the clerk, or any other person to receive and approve of it. There is no provision of law that requires notice to the adverse party of the filing of an indemnity bond, before the issuing of an execution. The plaintiff is bound, at his peril, to give a sufficient bond; and if he fails to do so, his proceedings may be enjoined. Rhodes knew the condition under which alone an execution could be issued. From the notice of the seizure he had thirty-four days to enjoin and prevent the sale, if the execution had issued improvidently on the filing of an insufficient bond. ' But the party who thus enjoins must, we apprehend, take the consequences, if the bond, upon enquiry, appears, as in the present case, to be good and sufficient. In the country, the notice contended for would be the means of forcing upon the plaintiff a delay of six months longer in the recovery of his debt. Objections would be invariably urged, and an issue made up which could not be tried before the following term of the court. In the absence of any law on the subject, an injunction, at the risk of the party, would seem to *133be tbe proper remedy. It would be perpetuated, if the bond was, on examination, found to be insufficient.

The appellee’s counsel has entered in this court a remittitur of the fifty dollars allowed below as special damages for counsel fees, on a suggestion that the allowance would not be sanctioned by this court.* This step cannot throw the costs of this appeal on the appellant, who had a right to complain of such an allowance.

It is, therefore, ordered, that the judgment of the District Court be affirmed, so far as it dissolves the injunction with general damages, and that it be reversed so far as it allows $50 as special damages ; the costs of this appeal to be borne by the appellee.