#### ANDREW FALLS & AL. *vs.*ABNER McAFEE & AL.

In an action upon a bond, the condition of which is to indemnify the -plaintiffs “ for all damages they might sustain by reason of the wrong. ful suing out of an injunction” by the defendants to stop the plaintiffs from working a certain gold mine, it is necessary for the plaintiffs to shew a want of probable cause for the former suit, and also, in a legal sense, malice in bringing it.

But where it appears that the party who sued out the injunction really and *bona fide*entertained the belief that he had just grounds for his suit, the idea of malice is negatived, and the action upon the bond cannot be supported.

The pase of *Davis*v *Gifily,*2 Dev. & Bat. 360, cited and approved. ■

An appeal from the Superior Court of Lincoln county, at Spring Term, 1842, his Honor Judge Pearson presiding. The plaintiffs brought this action of debt upon a bond of the defendants for $>3500, with a condition to indemnify the plaintiffs from all damage sustained by the defendants’ ■wrongfully suing out an injunction to stop them from working a gold mine. The plaintiffs read in evidence the bond, also a decree of the Supreme Court dissolving the injunction, and the final decree dismissing the bill with costs. The plaintiffs then proved, that in consequence of the injunction they had stopped working their gold mine from February, 1832, to February, 1835, and, by reason of thus lying idles the pit had caved in, the ditch filled up, and the washers and other implements been much injured: they also offered evi* deuce to shew, that, if they had not been stopped, they would have made during the three years, with the ten hands then working, $3400 per annum, after deducting all expenses, which sums they did not make until 1836-37-38, by reason of being so stopped. The plaintiffs’ counsel then rested the case. The defendants then proposed to offer evidence to *237shew probable cause, and to repel the allegation of malice. But the court intimated that it was unnecessary, as the plaintiffs had not made out a case; for, in the opinion of the court, to sustain this action it was necessary to shew malice and a want of probable cause, the action being similar to an action on the case for wrongfully suing a defendant and holding him to bail, or an action for wrongfully suing out a commission of bankruptcy, or for wrongfully suing out an original attachment, and differed entirely from an action on.a prosecution bond, or an appeal bond, in which latter actions a failure to prosecute with effect was sufficient. The court was also of opinion that the decree dissolving the injunction, and the decree dismissing the bill, did not-amount *to prima facie*evidence of a want of probable cause and of malice. The plaintiffs’ counsel then proposed to offer evidence to shew a want of probable cause and malice, and it was agreed that the same evidence should be given as had been given in the original case in Equity, by which it was agreed these facts were established: that one Carpenter contracted to sell a tract of land to Falls, gave a bond for title, and took notes for the purchase money; that Falls took possession of the land but was poor and unable to pay for it, and did not for several years pay more than the ordinary rent; that a valuable gold mine was discovered on the laná, whereupon the defendants went to Carpenter and induced him to sell the land to them and execute to them a deed; that at the time of their purchase they had notice of the claim of Falls, but believed that, by securing the legal title, they could defeat Falls in a bill for a specific performance, on account of his laches in paying the purchase money, and his inability to pay but for the discovery of the gold mine; that after obtaining the legal title, they sued out the injunction to prevent Falls and Company from working the mine, until the equitable title was settled. The court was of opinion that these facts were not sufficient to shew a want of probable cause; much less were they sufficient to imply malice. It was then agreed by the counsel to reserve these questions, and let the jury pass upon the question of damages. The court left that question to the jury with instructions to find the amount *238of damages by reason of the dilapidation of the works, and ky reason of the plaintiff^ not getting the several sums of gold as soon by three years as they would have got it, but for the injunction, which would be the interest for the time. The jury found for the plaintiffs, subject to the questions reserved, and assessed the damages to $2094. Upon the questions reserved, the court was of opinion with the defendants, and directed the verdict to be set aside and a nonsuit entered, from which judgment the plaintiffs appealed.

*Badger*for the plaintiffs.

*Alexander and Caldwell*for the defendants.

Ruffin, C. J.

The counsel for the plaintiffs has not contended that the Superior Court erred in its opinion as to the nature of this action, but admitted that it can only be maintained by shewing a want of probable cause for the former suit, and also, in a legal sense, malice in bringing it. That admission was properly made in our opinion, as has been already expressed in *Davis v*Gully, 2 Dev. & Bat. 360. But it was contended that the court erred in holding, that the proceedings and decrees in the former suit did not establish a want of probable cause; and the counsel endeavored to maintain that proposition by minutely commenting on the pleadings and proofs in the chancery suits, and also to infer from the want of probable cause, thus established, the existence of malice. We cannot, however, recognize any part of those proceedings further than they.are incorporated into the record of this cause; since we are restricted to this record as the ground of our decision. Now the parties have agreed, here, on the inferences of fact, which are to be considered as established by the evidence in the former causes; and among them is one, which, in our judgment, puts an end to the plaintiffs’ case.

The case, after stating the purchase by Palls and notice of it to the present defendants, proceeds to admit, on the part of the plaintiffs, that, at the time they bought from Carpenter and filed their bill, these defendants “ believed that, by securing the legal title, they could defeat Falls in a bill for spe*239cific performance, on account of his laches in paying the purchase money and his inability to pay it, but for the discovery of the gold mine.” Whether that was a reasonable belief or not, is not material to the question we are now to consider. We remember, indeed, that counsel gave us much trouble to shew, that it was not well founded. But supposing that belief to be without a just foundation, we are, nevertheless, upon the admission quoted, to take it, that it was •really and *bona fide*entertained. Thus taking it, 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 right, or supposed right, until that right could be investigated and established. It has turned out, indeed, that those parties had not the right they then believed they had; aud that the present plaintiffs have sustained a heavy loss from the operation of the process awarded against them. But, much as that is to be regretted, it cannot 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 truth is, the party was not so much in fault for asking the injunction, as the judge was in error in granting it. The case arose early after the business of mining began, and the writ was improvidently awarded, without recollecting at the time that to stop the working of the-mine was alike opposed by the public policy and the private justice due to the party, that might be found ultimately to be the owner; and that it would the rather promote all interests to appoint a receiver, or take some other method for having the profits fully accounted for. It is, iudeed, surprising, that the present plaintiffs had not, at the first opportunity, moved to discharge the injunction by submitting to an order for a receiver. If they had, they would, doubtless, have avoided most of their losses; and therefore they are to attribute them very much to their own negligence, and must submit to them.

Per Curiam, Judgment affirmed.