The plaintiffs were the owners of a public grist mill on the waters of Fishing creek and brought their action to restrain the defendants from constructing a dam and erecting another mill on the same stream about eleven hundred yards below, on the ground that the water would be ponded back and interfere with or obstruct the operations of their mill and that the public health would be also endangered. On application to the Judge for an injunction he appointed a time and place, of which notice was to be given the defendants (549) where he would hear the motion, and meanwhile he issued a restraining order and suspended all further work on the dam. On hearing the motion and numerous conflicting affidavits as to the effect upon the plaintiff's mill of the proposed dam, the Judge refused the motion, discharged the restraining order, and directed a reference to the clerk to ascertain the injury done to the defendants by the restraining order under which they were compelled to discontinue their work.
On appeal this ruling was affirmed in the Supreme Court at January Term, 1875. At Fall Term, 1876, the referee made his report ascertaining the defendant's damages to be seven hundred and eighty-three dollars. To this exception was made and a jury trial demanded by plaintiffs. At January Term, 1878, on the defendants' motion to have their damages arising from the restraining order assessed by a jury, the Court adjudged that the defendants were not entitled to recover their alleged damages, at least at this stage of the case and in this mode of proceeding, and that they go without day and recover their costs.
To the refusal of the Court to allow them to proceed and assess their damages before the jury, the defendants except and appeal. This is the only point now before us and we are of opinion that there is no error in the ruling of the Court.
When an order granting an injunction is made, it is necessary that the party applying to the clerk to issue it shall first give a written undertaking with sufficient sureties to the effect that the plaintiff will pay to the person enjoined such damages not exceeding a sum to be specified "as he may sustain by reason of the injunction, if the Court shall finally decide that the plaintiff was not entitled thereto." C. C. P., sec. 192. The Court may however postpone acting upon the application until the persons to be effected can be heard, and in the (550) meantime restrain the defendant. Sec. 193. In the latter case no such indemnity is required.
We are not prepared to say that in a proper case the defendant may not seek redress for an injury done by such temporary restraining order as well as by an injunction. Both operate in the same way and produce the same results in a greater or less degree. The undertaking *Page 411 required by the statute in one case does not impose any new liability upon the plaintiff, but simply provides an additional security for that which already exists. But in neither case can damages be recovered by a defendant for loss incurred through an action bona fide brought and prosecuted by a plaintiff for his relief. The right of a defendant to sue does not depend solely upon the result of the action, but upon the want of probable cause and of good faith in its prosecution. In this respect actions in which an injunction may issue stand upon the same footing as others. There can not indeed be any action in which inconvenience and loss are not sustained by the defendant, but the penalty imposed on the plaintiff is only the payment of the costs of the suit. This will appear from an examination of adjudicated cases.
In Williams v. Hunter, 10 N.C. 545, the action was brought to recover damages for suing out an attachment wrongfully, and levying on the plaintiff's mare, and TAYLOR, C. J., said: "I can not distinguish the case from an action for maliciously holding a party to bail or suing out a writ when nothing was due, in which case the action is malice and want of a probable cause. For although the plaintiff in the first action should fail to recover, yet unless it was brought with a view to oppress the defendantand with a knowledge that he had no sufficient cause of action, it will not give the injured party a right to sue."
In Kirkman v. Coe, 46 N.C. 423, the doctrine in the above case is so far modified as not to require to be shown the element of malice, and it is said, as the attachment bond required is to indemnify against wrongfully suing out an attachment, the idea (551) of malice as an essential ingredient of the action is negatived. In delivering the opinion, PEARSON, J., thus states the law: "To maintain an action like the present it is sufficient to show a want of proboble [probable] cause. To maintain an action for slander it is sufficient to show malice. To maintain an action for malicious presecution [prosecution] both a want of probable cause and malice must be shown."
In Davis v. Gully, 19 N.C. 360, the plaintiff brought his action on a bond given by the defendant upon suing out a writ to sequester certain slaves in the plaintiff's hands and failed. GASTON, J., in the opinion says: "The words `for wrongfully bringing suit in the Court of Equity' must be interpreted as the analogous words in the condition of an attachment bond, have been interpreted — the bringing of a suit maliciously and without probable cause," and he concluded thus: "The purpose of the bond in the case was to secure the plaintiff against the insufficiency of the common law remedy if the complaints in the suit in equity should be unable to respond in damages."
So in Falls v. McAffee, 24 N.C. 236, the action was upon a bond to *Page 412 indemnity the plaintiffs "for all damages they might sustain by reason of the wrongful suing out of an injunction" by defendants to stop the working of a gold mine. It was proved that in consequence of the injunction the working of the mine had been stopped for three years and by reason thereof the pits had caved in, the ditch filled up, and the work and other implements injured, and that if not restrained the plaintiff would have made during the interval after deducting all expenses a profit of three thousand four hundred dollars per annum. Evidence was offered to show a want of probable cause and malice in the defendant which the Court thought insufficient, but the Court reserved this question, allowed the jury to assess the damages, as they did at two thousand and ninety-four dollars. The Judge afterwards set aside the verdict and (552) ordered a nonsuit from which there was an appeal. The Court, RUFFIN, C. J., delivering the opinion says: "The counsel for the plaintiff has not contended that the Superior Court erred in its opinion as to the nature of this action, but admitted that it can only bemaintained by showing a want of probable cause for the former suit and alsoin a legal sense malice in bringing it." He then proceeds: "Thus taking it that the ingredient of malice is absolutely negatived, and the present defendants, instead of having brought a groundless suit for the purpose of oppressing the present plaintiffs and subjecting them to losses, appear only to have honestly sought from the preventive justice of the Court a remedy against impending injury to their rights, or supposed rights, until that right could be investigated and established. It has turned out indeed that these parties had not the right they then believed they had, and that the present plaintiffs have sustained a heavy loss from the operation of the process against them. But much as that is to be regretted it can not be repaired in the present action, as the defendants prosecuted that litigation from sound motives, just as much so as the present plaintiffs are now prosecuting their suit."
The principle thus announced is decisive of our case, for surely, if the defendants were not liable upon such a bond, neither can they be when no bond is given for damages, which it was the very purpose of the bond to secure when the plaintiffs were entitled to recover them. We therefore affirm the judgment.
Affirmed.
Cited: Ely v. Davis, 111 N.C. 26; Timber Co. v. Rountree, 122 N.C. 50;Mahoney v. Tyler, 136 N.C. 43. *Page 413
(553)