Preliminary to all other questions presented by this record, is the question, can this action be maintained ? We have searched the precedents and books of pleadings from the earliest times to the present, and find but one case where it has been held, that an action can be maintained for maliciously suing out a writ of injunction. We are well aware that elementary writers and respectable courts have held that an action on the case will lie for an abuse of the process of the courts, where special damages are alleged, and against a party for prosecuting a causeless action prompted by malice, by which the defendant has sustained some injury, for which he has no other recourse or remedy. Such actions, however, for the most part, are actions wherein arrests have been made and bail demanded, or the party put to some other expense and inconvenience, which cannot be compensated in any other mode than by an action. Such actions, except where a malicious arrest is charged, are not favored by the courts, and ought not to be, for in a litigious community, every successful defendant would bring his action for a malicious prosecution, and the dockets of the courts would be crowded with such suits. Even for instituting a criminal prosecution, and failing in it, courts regard a subsequent action for malicious prosecution with disfavor, for the reason that they have a tendency to discourage just prosecutions for crime. There is little doubt that very many aggravated cases of crime have not been prosecuted, from the dread, in the event of an acquittal, of this action to follow, and damages recovered, ruinous to the prosecutor. But the action will lie, for it is reasonable, that when an injury is done to a person, either in reputation, property, credit, or in his profession or trade, he ought to have an action of some kind to repair himself. Most of the cases we have examined are cases for falsely, maliciously, and without probable cause, suing out process, regular and legal in form, to arrest and imprison another. Such arrest is tortious and unlawful, and the party causing it ought to be answerable in damages for the wrong done, but even in such case, some damage must be alleged and proved.
As we have said, we have found but one case where the action was held to be maintainable for suing out an injunction in chancery, and that was a case decided by the Supreme Court of Kentucky. It is the case of Cox v. Taylor's Administrators., and reported in 10 B. Monroe, 17.
The declaration in that case was adjudged insufficient, because it did not allege that the injunction or restraining order, whereby the plaintiff was prevented from the proper use and enjoyment of his land, was obtained or caused to be issued or continued without any probable cause therefor. Had this allegation been in the declaration, as it is in the one before us, it would have been sufficient. It was argued by the defendant, that the remedy, by an action on the case, was merged in that on the bond which is given on obtaining an injunction. In reply to this, the court said, that although a bond was given, on obtaining the injunction, that an action upon it,' and on the case, are not coextensive or commensurate, either as to the nature of the wrong, or as to the extent or criterion of damages recoverable, and therefore there was no ground for this argument, and the court likened it to a case of official bonds by sheriffs or others, both remedies would exist, and thought the same should be the ease with regard to injuries occasioned by injunctions for which the party might have an action on the case, if no bond were required.
This is the only case we have been able to find going near to sustaining this action. It is a solitary case—it stands alone, and that fact is some evidence that it is out of the track of well received judicial decisions. On the principle that this action is not to be encouraged, it seems surprising such a decision should have been made, especially where the injured party had a more efficient remedy, and in pursuing which, he would not be required to show a want of probable cause.
We hold the remedy on the bond given on obtaining the injunction, is all the remedy to which the injured party can resort. It is designed by the statute, to cover all damages the party enjoined can possibly sustain, and it is in the power of the judge or officer granting the writ to require a bond in a penalty sufficient to cover all conceivable damages. This bond is a high security which the law requires the complainant in a bill for an injunction to execute, to indemnify the defendant, in case the injunction shall be dissolved. It is a familiar principle, when a party has taken a higher security, his suit must be brought on that security. Touissant v. Martinnant, 2 T. R. 104; Cutler v. Powell, 6 ib. 324. The bond ’ becomes, when forfeited, the cause of action, and is intended by the law, to measure the damages of every kind which the party may sustain by wrongfully suing out the injunction in case it is dissolved. It is not at all like the official bonds of sheriffs. They are made payable to the People of the State, not to any particular person, and consequently, do not merge a remedy one may have outside of the bond, and besides, it is the policy of the law to multiply the remedies against public officers. Not so with the injunction bond, that is made payable to the defendant. He is the only person interested in it. It is his security. It is all the law gives him as his security, and he is bound to sue on the bond. Were no bond given or required, then the action might lie. This action on the case, under the circumstances shown, cannot and ought not to be maintained. It is against public policy. Eor these reasons, the judgment is reversed.
Judgment reversed.