McLaren, Ragan & Co. v. Bradford , 26 Ala. 616 ( 1855 )

CHILTON, C. J.

—Whether this declaration be considered as in an action ex contractu, or ex delicto — whether in as-sumpsit, for the breach of the written contract made by Bradford, or in case, for a tortious breach of duty growing out of such contract — we arc of opinion, that in neither aspect can it be supported.

Although it contains a general averment, that the defendant did not, nor would, ever suffer and permit the plaintiffs to cut and carry away all the timber, &c., yet the plaintiffs go on to particularize how they were prevented, and, upon a fair construction of their pleading, clearly show, that the injury complained of resulted from their being enjoined and restrained by proceedings in chancery instituted by Bradford. The injury consequent upon the writ of injunction is the gist of this action, and this injury is the immediate result of civil proceedings instituted in the chancery court.

The law secures to every citizen the right to resort, bona fide, to the courts of justice, to invoke their aid in protecting him in the enjoyment of his property. If they do this without malice, they are not liable by the rules of the common law; and to hold them liable in this S tate for the mere wrongful resort to civil or criminal proceedings, in the absence of malice, requires some statutory provision, such, for example, as relates to suing out attachments wrongfully, and the like. So, also, where an action is brought on an injunction bond conditioned to pay damages consequent upon the wrongful exhibition of a bill in chancery and obtaining an injunction, we have held, that the actual damage may be recovered, although there was no malice.—Spivey v. McGehee, 21 Ala. 417; 19 Ala. 344.

The case before us is not in tort for the malicious prosecution. No malice is averred; nor is it upon the injunction bond ; these being the only remedies which the law affords the party injured by the injunction. But the effort is to transfer'the injury, which is the immediate result of the injunction, to the contract, making it work the breach of such contract, which contains no provision that could be violated by a Iona fide resort to the civil proceedings complained of-We know of no rule of law which justifies this. If the party has been injured by the chancery proceedings, the law gives him a remedy, as wc have said, either upon the injunction bond, if there be a breach of it, or an action upon the case, if there be malice. To one of these remedies he must resort, and not to his contract, the operation ,of which has been incidentally affected by such civil proceedings.

Let the judgment be affirmed.