Garrett v. Logan
Supreme Court of Alabama
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…
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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…
1Opinion of the CourtParsons, 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 *346this, there could'be no cause of action. The action is…
2Cases cited1 opinion
- Marshall v. BetnerSupreme Court of Alabama · 1850
3Cited by16 opinions
- Behrens v. McKenzieSupreme Court of Iowa · 1867
- Bolling v. TateSupreme Court of Alabama · 1880
- Culver v. HillSupreme Court of Alabama · 1880
- Wittich v. O'NealSupreme Court of Florida · 1886
- Lockhart v. WoodsSupreme Court of Alabama · 1863
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