19 Ala. 344 | Ala. | 1851
The demurrer 'to the third assignment of breaches was overruled. There was error in this, we think. 'When broaches are assigned, either in the declaration, or by a replication, it must appear that the plaintiff has a cause of action, as in Gainsford v. Griffith, (1 Saunders, 60.) The plaintiff below, in his declaration, set out the 'condition, and assigned breaches, and the question is, whether he made it appear that lie had a cause of action? It no where appears by the declaration that the injunction was sued -out vexatiously. Without
The third plea of the defendants below was, that the injunction was not vexatiously sued out; to which the plaintiff demur* red, and his demurrer- was sustained. In the analagous cases of suits for wrongfully or vexatiously suing out attachments, this court has settled various questions. In Marshall v. Betner, (17 Ala. 832,) it was held that' a plea to an action on the case for wrongfully and vexatiously suing out an attachment, which avers that the attachment was not sued out wrongfully, maliciously, or vexatiously, or without reasonable or probable cause, presents a substantial defence to the action, and is not demurrable» Jf the plaintiff below should so amend his declaration as to render it necessary for the defendants to plead,-the third plea can be amended so as to correspond with the opinion of the court in Marshall v. Betner.
It is contended that the plaintiff below- brought this suit pre*-maturely ; that he should first have brought' an action on the case to ascertain his damages, and then an action upon the bond; - but we are not of that opinion. The counsel relies on Davis v. Gully et al., 2 Dev. & Bat. 360. That case is, however, so plainly distinguishable from this,- in respect of the necessity of a previous suit, as to render any remark unnecessary. But, although we think an action on the bond in the first-instance-was - sustainable, 3ret it is clear that most of the law relative to actions on the case for such and similar wrongs must apply- when the action in the first instance is on the bond.- The measure of damages in general should bo the same, and the action mus-t. b'o subject to tho same defences, except in matters of form.- In Davis v. Gully, et al., (2 Dev. & Bat. 360,)' it was determined’ that “a bond with a condition to be void upon the payment of" such damages as might be recovered of the principal obligor for wrongfully bringing a suit in equity against the obligee, is a guaranty that the principal shall bo able to satisfy any judg1-
Should the pleadings be hereafter adapted to the case of a malicious and vexatious use of the injunction, the chancery record, as has been mentioned, will not, by itself, be evidence con-elusive of tho vexatious or malicious purpose of the defendant. But that record will bo admissible, and other evidence may or m'ay not make it sufficient upon the questions of malice, of probable cause, See. It would be entirely premature now to decido those questions, knowing nothing of the evidence, fro or con., which the parties will oiler..
The judgment is reversed and the caitse remanded.