I agree with the reversal of the District Court’s Order.
I disagree, however, with the majority’s direction to the District Court to enter a judgment, in the instant proceedings, awarding the stipulated attorneys’ fees and expenses, except for statutory costs on the prior appeal.
In my opinion, since the defendants below have elected to seek recovery of their reasonable attorneys’ fees and expenses in the same proceedings in which the preliminary injunctions were im*494providently issued they are for that reason limited in their recovery to the amounts specified in the injunction bonds posted in these proceedings, under Section 7(e) of the Norris-LaGuardia Act, 29 U.S.C.A. § 107(e).
Section 7(e) provides in relevant part:
“ . . . No temporary restraining order or temporary injunction shall be issued except on condition that complainant shall first file an undertaking with adequate security in an amount to be fixed by the court sufficient to recompense those enjoined for any loss, expense, or damage caused by the improvident or erroneous issuance of such order or injunction, including all reasonable■ costs (together with a reasonable attorney’s fee) and expense of defense against the order or against the granting of any injunctive relief sought in the same proceeding and subsequently denied by the court.
“The undertaking mentioned in this section shall be understood to signify an agreement entered into by the complainant and the surety upon which a decree may be rendered in the same suit or proceeding against said complainant and surety, upon a hearing to assess damages of which hearing complainant and surety shall have reasonable notice, the said complainant and surety submitting themselves to the jurisdiction of the court for that purpose. But nothing in this section contained shall deprive any party having a claim or cause of action under or upon such undertaking from electing to pursue his ordinary remedy by suit at law or in equity. Mar. 23, 1932, c. 90, § 7, 47 Stat. 71.” (emphasis supplied).
The cited provisions plainly spell out two separate and independent procedures for recovery of reasonable attorneys’ fees and expenses incurred by a party against whom a temporary injunction has been improvidently granted; he may elect to have recourse against the injunction bond in the same proceeding in which it was posted, or he may independently elect “to pursue his ordinary remedy by suit at law or in equity” for his recovery. It is a reasonable assumption that Congress, cognizant of the well-settled general rule that the liability on an injunction bond is limited by its face amount, legislated the provision affording a right of independent suit for recovery of permissible attorneys’ fees and expenses in order to insure full reimbursement of such fees and expenses.1
Here, the majority construes Section 7(e) to permit the aggrieved parties to recover in full their attorneys’ fees and expenses in the same proceedings in which the injunction bonds were issued, even though they substantially exceed the aggregate amounts of the posted injunction bonds.
There is no warrant for such a construction, and it can only be described as impermissible judicial legislation. The majority has failed to cite any case which even remotely affords nourishment for its construction, even though it transgresses the procedural scheme of Section 7(e).
I would reverse ■ the District Court’s Order with directions to enter a judgment awarding the defendants below $4,-000.00, the aggregate amount of the injunction bonds posted by the plaintiffs, in the event that the defendants do not choose to exercise their right to withdraw their pending Motion for allowance of the stipulated attorneys’ fees and expenses.
. The majority speculates that “[p]rob-ably the possibility of a recovery against a plaintiff who had proceeded without probable cause was the reason why Congress added the last sentence of § 7 of the Norris-LaGuardia Act, 29 U.S.C. § 107.”
The ready answer to such speculation is that § 7 (e) provides that recovery of reasonable attorneys’ fees and expenses arises, without more, when there has been an “improvident or erroneous” issuance of a temporary restraining order, and accordingly, lack of “probable cause” is an irrelevant consideration.