Manlove v. Vick

Chalmers, J., delivered the opinion of the court. This is an action on- the case, seeking to recover damages •alleged to have been sustained by the wrongful issuance of an injunction writ. There is no allegation in the declaration that the injunction was either maliciously sued out, or that It was without probable cause. It is only averred to have been issued “wrongfully, and without any sufficient cause or reason.” It is Avell settled, both at common law and under statutory provisions requiring the giving of bonds as conditions precedent to obtaining certain statutory writs, that no action can be maintained against the party issuing the writs, except by ¡showing malice and want of probable cause in their issuance. For the wrongful bringing of the common-law actions, the •compensation to the defendant is the recovery of costs. In the other class of actions the recovery of damages sustained must be upon the bond given by the party who invoked the Statutory writ. To go beyond this, in either class of cases, malice and want of probable cause must be shown, though it is sometimes said that malice may be inferred from the want of probable cause. This far the rule is laid down by all the .authorities, save some early cases in Alabama, which have ¡since been overruled. The only serious controversy among the cases is whether, where a bond is by statute required and [570] given to cover the damages sustained, the remedy on the bond* does not become exclusive, and preclude any other action,, even where malice and want of probable cause is averred. This question it is not necessaiy to decide, because there-is here no averment of malice or want of probable cause, Cox v. Taylor’s Administrator, 10 B. Mon. 17; Gorton v. Brown, 27 Ill. 489; McKellar v. Couch, 34 Ala. 336; Drake on Attach., 4th ed., sec. 726 et seq., and authorities cited. Judgment affirmed.