
    GARRETT & HILL vs. LOGAN.
    1. Ia debt on bond, the breaches assigned, whether in the declaration or by a replication, must show that the plaintiff has a cause- o£ action.'
    2. An action of debt on an injunction bond cannot be maintained to recover damages occasioned by the suing out of the writ, unless the-injunction was sued out vexationsly.
    3. The record of the chancery suit in which the-injunction was sued out is admissible-but not conclusive evidence, as to the vexatious suing out of the writ.
    4. An action may be maintained on an injunction bond without a previous action o.n the case to ascertain the damages occasioned by the vexatious suing out of the writ..
    5. Counsel fees necessarily incurred- in the defence of an injunction-suit, may be recovered in an action of debt on the bond, though they may not be actually paid.
    ERROR, to the Circuit Court of Bibb. Tried before tlie Hon. John D. Phelan.
    This was an action of debt by Logan against Garrett & Hill on an injunction bond executed by them, tbe condition of which, after reciting that Garrett had applied for and obtained an injunction in a certain chancery suit, against Logan and one Carter, continues thus : “ Now if said Garrett shall well and truly, prosecute his said writ of injunction, and pay all damages and costs occasioned to said defendants hy the vexatious suing out of said writ, then this obligation to be void,” &e. Three breaches are assigned in the declaration- 1. That said Garrett did not well and truly prosecute said injunction and pay all damages and costs thereby occasioned to said plaintiff and Carter.. 2. That said Garrett did not well and truly prosecute said injunction, but wholly failed so to do, and said injunction was,, on the 1st June, 1848, in due course of law dissolved, and the- bill ■in chancery filed to- obtain the same dismissed. 3. That said injunction was sued out to restrain plaintiff and said Carter from, running a certain ferry boat across the Cahawba river, by means whereof they were prevented from running said boat for a long time, whereby they sustained great damage, and were put to ¡great trouble and expense in employing solicitors and procuring l testimony in 'and about making their defence to said injunction ■■suit, all which sums defendants were bound to pay, but wholly . failed so to do.
    The defendants demurred to each breach assigned, and their demurrer was sustained as to the first and second breaches, but overruled as to the third. They also pleaded, l.-Jfil debet. 2. No damages were occasioned by the vexatious suing out of said injunction. .3. Said injunction was not sued out vexatiously. 4. Performance. Plaintiff demurred to the second and third ■ pleas, and his demurrer was sustained. Issue was taken on the first and fourth pleas, and a verdict and judgment rendered for ■the plaintiff.
    H. Davis, for plaintiff in error, made the following points:
    I. The action was prematurely brought. There should have been a previous action on the ease to ascertain-the damages.— Herndon v. Forney, 4 Ala. 243-; 'Donnell v.- Jones, 13-ib. 490 ; Davis v. Gully, 2 Dev. & Rat. 360.
    2. The declaration is bad. It does not aver that the injunction was sued out vexatiously. The third breach assigned is not such a breach as could arise under the condition. The’obli-gors only bound themselves to pay the damages occasioned by the vexatious suing out of the writ, not the loss of profit, 'or cost of defending suit.
    3. The third plea was good. — Marshall v. Betner, IT Ala. 832.
    4. Attorney’s fees can only be allowed ivlien actually .paid;— Nornegay v. White, 10 Ala. 255; Marshall v. Wood, 16 ib. 806 ; Marshall v. Betner, -IT ib. 832.
    I. W. Garrott, contra.
    
   PARSONS, J.

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 this, there could'be no cause of action. The action is founded'on the bond and- condition. According to the condition there ■ was no right of action, either for costs or damages, but "such as might be occasioned by the vexatious suing out'of the injunction,. ■ a fact which is not averred. It is' clear that the question whether the injunction was vexatiously sued out, was not directly in issue in the chancery suit, and consequently the record of that suit was' not conclusivo of the fact.

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-ihent’ obtained against him, in an action oivthe'case for wrongfully filing the bill; and no- action can be brought on such bond until the obligee has obtained such judgment and failed to procure satisfaction.” That was a bond for the payment of such damages as might be recovered, meaning,•> as the court thought, by an action on the case. In the case before us the bond was simply to pay all costs and damages occasioned to the obligees by tho vexatious suing out of the injunction. Hence the distinction between that case and this, in that respect, is obvious. In Davis v. Gully, et al., Gaston, J., observed: “We hold also, that tho words£ for wrongfully bringing suit in the court of equity,’ must be interpreted as the analagous words in the condition of an attachment bond have been interpreted — the bringing of a suit maliciously, and without probable cause.—Williams v. Hunter, 8 Hawks, 345. It would be premature in us to decide what evidence would be demanded of tho plaintiff in an action on the caso, to sustain the allegation that the bill in- equity had been instituted for the purpose of oppression and wrong; but we perceive no more difficulty in establishing tho allegation, if true, than there was in the case of Hackney v. Mathews,- which was brought for maliciously impleading the plaintiff in the Ecclesiastical Court, (1 Vent. 86; 2 Inst. 562,) or in the case of Brown v. Chapman, for maliciously suing out a commission of bankruptcy.—1 Black. Rep. 427. An action on the case lies against any person who maliciously and without probable cause, prosecutes another before any tribunal, and thereby subjects him to an injury, either in his person, property, or reputation. The purpose of the bond in this case was to secure the plaintiff' against the inefficiency of this common law remedy, if the complainants in the suit in equity should be unable t-o respond the damages.”

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..

As to the expense of the plaintiff below, in employing counsel to defend the chancery suit, it was held by this court that “in cases where malice is the gist of the action, and vindictive damages recoverable, fees paid to counsel in defending against the wrongful act of the defendant, if reasonable and necessarily incurred, may be proved and considered by the .jury in the assessment of damages.”—Marshall v. Betner, supra. This demand is not to be influenced by the question whether the fees had been actually paid. If contracted to be paid, it is enough, provided it was necessary to do so. As to the opinions of the Circuit Court in reference to the charges and refusals to charge, I have particularly examined them, but in view of the actual and full case presented by the entire record, I am not satisfied that there was any error ; but in the event of a change of the state of the pleadings and evidence, the matters in relation to which the court charged and refused to charge, may not be decisive of the case, therefore, we forbear any opinion.

The judgment is reversed and the caitse remanded.  