Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1872-03-28

rules snd practice Of the high court OF
chancery Ia England, and which, though
they may be modified ss to process and
practice by the circuit judges, cannot be
so far modified as 70 hefine the ri9hsa and
| obligations OF partiiH to an injunction
bond; congress- has this power, the circuit
courts have not ,nor has the suprems court
exercised th9 power so for.
Chief Justice TsneT, in Bein VI Heath,
supra, recognizes THAT By the law and
practice Of tbs Stste courts Of Eouisisns,
under bouds like those In the suit at bar,
permit suit on bond for damaTas, In the
hrst instance, before q recovery Of the
damages In previous suit.
IL Is argued that 50 oh are the law and
decisions In Tennessee, aud that the State
law should be the rule OF decision Ia this
court on bond given In Tennessee. But
the decision OF the Federal supreme court
Is the other way, which We must follow:
but our Judgment is wholly against the
plaintiff upon principle and authority on
the question under discussion.
Our attention has b8en CHALLENGED to
several State decisions In reference 20 &C.
lions upon attachment bonds. Such bonds
are based upon State laws prescribing the
condition OF the instrument. Thus, In
kenSuckY tha prescribed condition is,
for payment Of al costs and
damages Sustained by defendants" 90
IN Alabama, all such damages a. ne
may "sustain; - and In Virginia all such
costs snd damages a. may Hacerue.| In
these States, suit on the bond may be
maintained against all the obllgors, for
the damages, without previous suit and
recovery therefor. The conditions Of
such bonds clearly authorizs such suits
In the frat instance. While In Louisiana
aud Tennessee, tbs conditions prescribed
by ststute in attachment cases, Is to pay
the dsmages, eta thst defendant may
'recover;" and yet the courts Of these
States decide, that action on the bond VIII
lie before recovery against the plaintiff
therein Of dsmsgss sustained. However
might be our opinion as to the construc-
tion OF such State statutes, II the bonds
here sued on, were executed under the
Tennessee ststute, we should follow the
decisions Ofthe courts Of this State in ref.
ereuce TO the rights of parties under them.
But the bonds in the case st bar, are not
executed under pursuance Of the State
law, and therefore we are not bound BY
State rulings as to State attachment
bonds, or IS to injunction bonds.
The rem aiming question, Whethar courts
upon cause of action eE contracts, can
be Joined with courts eE delcsto, II 70 be
determined by common law rules of
pleading, would require no discussion.
No lawyer would contend that they could
be joined. But is is said the code of Tan.
1sssse and the State practice authorizes It.
and as the cause comes here from the
State court, under the act Of congress of
July, 1858, the cause is to proceed "a to
the pleadings as though tho cause were
tried in the State court. Such il the act
Of congress under which the cause is
brought here.
We do not, however, understand the
code OF Tennessee to 60 to the extent
c aimed for it BY plaintiffs counsel. By
section zI49, Whenever the facts OF the
case enttfls the plaintiff TO sue ''for
breach ofoontrsct, or at his election. for
the money and injury, he may Join State
msuts of ais cause OF action In both forms
or either" as where, under the common
law rule, the same facts would authorIzs
ssuit in toll VI ons In assuusit.
Saeh is not this case. Here ara courts
on bonds, the right to sue and recover
upon which depends on the terms Of the |
instrument and the actual damages that |
hsve bssn sustained, as evidenced by q |
previous recovery; and these are Ioined |
with counts IN case for . malicious prose-
cution, the right to recover upon which |
depends not az all upon the bonds nor |
upon the same facts as would dstermine /
the measure of sctusl damages sustained
In consequence Of wrongfully suing out |
the Injunction. A suit for malicious prose- /
eution cannot be maintained without |
proof Of malies; whereas q suit for actual |
damage In suing out the Injunction |
WrongfuBy does not necessarily involve |
the question Of malice.
For reasons given the demurrer Is sus- |
tanned, as to all the counts, with lease TO /
the plaintiff, so to amend his dscIaration /
as TO charge defendent for the alleged /
malicious prosecution. This Is perrnissi- |
bic, as neither tho summons or declara-
tiOn names the form OF action: that not |
baina required by the code In bringing /
suit or In declaring.
IF the declaration Is capable Of amend
mens so SIS to cover the claim of actual /
damages the amendment might take that /
form. pass no Judgment on that quss-
ton.