Wheeler, J.
The proof shows very satisfactorily that the defendant Chambers had a special object in view in making the,con tract, by which he obligated himself to make title to the land, in consideration of the assignment to him of the audited certificate of public debt. It was that'he might sell or hypothecate the certificate for a loan of money to meet his present, urgent necessities. And this was well known to the other contracting party, who acted, in making the contract, for himself, and as agent for these plaintiffs. The latter undertook and guaranteed that he had full power and authority from the plaintiffs to assign and transfer the certificate by his deed of assignment of the 4th of March, 1853. The obligation to make title, on which this suit is brought, states the fact of th& assignment and guaranty of authority to assign, and expresses that it is given in consideration thereof, and of the “ engagement of the said David Haldeman to cause the said “ certificate to be delivered to me within sixty days, and the “full amount of any loan which may have been negotiated “ thereon.” The certificate had been sent to Brower & Co., of [39]*39New York, to negotiate a loan of money. The manifest intention of the parties was, to pass the property in the certificate, by the assignment, so as to enable the assignee, Chambers, to use it, and its proceeds, as his own ; and if the assignment was not effectual for that purpose, to make it so within sixty days, from that date. No other delivery of the certificate by Haldeman was necessary, or contemplated, than such as would be effected by the assignment and power to demand and receive it, and any loan which might be negotiated upon it, from the hands of Brower & Co., if the power under which Haldeman acted, was sufficient to enable him to make the assignment, and empower the assignee to demand and receive the certificate. If these were sufficient, nothing more was required of him. If not sufficient, his undertaking bound him to make it sufficient within sixty days. This is the only sensible construction which can be put upon the terms of the contract; and it accords with the testimony of the witness Larkins, as to the actual understanding of the parties. The limit of sixty days could not have reference to the assignment, which was made at the time. It had not reference to the mere manual tradition of the certificate ; for that, without the ability to use it, would have been of no avail to the defendant ; besides, that was to be effected by the power accompanying and coupled with the assignment. It had reference to the perfecting of the assignment and transfer within that period (in case it needed anything to perfect it), so as to render the certificate available to the defendant/ for the purpose for which he had purchased it. It can have had reference to nothing else. This, then, was the undertaking of David Haldeman, for himself, and as agent for the plaintiffs. But there was an utter failure on the part of the plaintiffs and their agent, to comply with their undertaking. The agent had no power to make the necessary assignment; and the principals did not make it. The former could not, and the latter have not performed that undertaking. The defendant was delated, [40]*40and finally defeated, in accomplishing the object he had in view, in making the purchase, without any fault of his own, but by the fault of the plaintiffs, or their agent; and it is immaterial which, the consequences to him were the same, and so are they upon the right of the plaintiffs, to have a specific performance of the contract. Surely it cannot be supposed that the plaintiffs are in a condition to claim the specific performance of the contract by the defendant, when they have wholly failed to perform on their part; or, that any transactions between themselves and their agent, as to the purchasing of his-interest in the contract, can give them that right.
It is said the plaintiffs ratified the contract made by their agent. But that was not enough. They were bound, not merely to ratify, but to perform the contract. If they adopted the contract of their agent, they took it with all its obligations and consequences ; and were obliged to perform its stipulations. If they ratified the act of sale, it became their contract, and they were bound to its performance, in like manner as if they had personally made it. (Story on Agency, Sec. 250, 419 ; Story on Con. Sec. 164 ; Henderson v. The San Antonio and Mexican Gulf R. R. Co., 17 Tex. R. 560.) Their ratification of the acts of their agent can be of no avail to the plaintiffs in this action; because they did not perform the undertaking with the defendant, to the performance of which, their agent, by his contract, had bound them.
It is immaterial whether the agent had authority or power to rescind the contract or not. When the plaintiffs failed to perform it, and the defendant Chambers was thereby prevented from deriving the benefits it was intended to confer, he had the right to treat it as at an end ; and to have it rescinded, without the consent of the plaintiffs, or their agent. Instead of sixty days, for which they had contracted, he gave them nearly twelve months, within which to perform their undertaking; and when they still failed to do so, undoubtedly he was entitled to a rescission of the contract.
[41]*41It is objected that the defendant had put it out of his power to rescind the contract, because he had drawn drafts on Brower, the holder of the certificate, payable out of the proceeds of its sale. This, it is insisted, was an equitable assignment by Chambers of the certificate. If Chambers had been the owner of the certificate, or had been legally empowered to assign it, the argument would be entitled to much consideration, though it does not appear that the drafts were- accepted by Brower. But the giving of the drafts manifestly did not have the effect to operate an assignment of the certificate, for the plain reason that Chambers had not the power to assign it. Neither he nor Brower possessed competent authority to assign it to effect that object, by any act or deed of theirs, either equitably or legally. The drafts, though they had been accepted, could not effect an assignment, which neither the drawer nor acceptor had power to make. Moreover, the deposition of Brower, shows that the certificate is in his hands subject to the event of this suit; and that the title to it is not affected by any lien, or other incumbrance. Had the plaintiffs assented to the rescission of the contract, instead of bringing suit to enforce it, there is no reason to suppose that any one would or could have contested their title to the certificate. There would be more force in the argument for the appellants on this branch of the case, if they had charged the defendant with having converted the certificate to Ms own use, and had shown that he had it in his power to do so, in consequence of any act of theirs, done in fulfillment of their contract to convey it to him. But they have neither averred, nor offered to proye, a compliance with their contract to make good the transfer. They have not put it in the power of the defendant to use the certificate. On the contrary, the plaintiff Thomas J. Haldeman, before instituting suit, gave notice to Brower not to deliver the certificate to the defendant; and then, while thus withholding, or causing ■ to be withheld, the consideration moving to the defendant, he brings suit to com[42]*42pel him to the performance of the contract. This plaintiff, it seems, would have the certificate withheld from the defendant, and deprive him of the opportunity of deriving any benefit from the contract, while he shall make the experiment of a suit to recover the land. There was no pretence to charge the defendant, with seeking to hold on to both the land and the certificate. For when he found it impossible to use the certificate, after affording the plaintiffs ample time to furnish him the means of doing so, as, by their contract, they were bound to do, he relinquished all claim to the certificate. This is evidenced by his rescission of the original contract long before the institution of this suit. The plaintiffs do not aver a performance of the contract, on their part, according to its true and obvious spirit and intention ; and while failing to perform, and withholding the consideration, they seek to compel a specific performance by the defendant. The attitude which they occupy upon the record, certainly does not seem to commend their case to the favorable consideration of a court of equity; which holds it a first principle and maxim, in administering relief, that he who seeks equity, must do equity.
It is objected to the judgment that it does not order the certificate to be returned to the plaintiffs. That was unnecessary. It was placed in the hands of Brower by the plaintiffs, or their agent. After being advised of the assignment to Chambers, Brower considered that he held it for him, until, on attempting to negotiate a loan upon it, the authority of the agent to make the assignment was questioned. He now holds it subject to the event of this suit. The right to it has been adjudged to the plaintiffs, and that is sufficient to enable them to' demand and receive it. There is no error in the judgment, in favor of the defendant Chambers.
Upon the question, whether there was error committed against him, in declining to award damages in his favor ; without deeming it necessary to determine whether the case [43]*43presented by his answer was such as would entitle him to maintain an action for damages, we are of opinion that the Court did not err in declining the award. It may be a question, whether, in consenting to waive a jury, the defendant is not to be deemed to have waived his right to claim a judgment for unliquidated damages. Such damages are the proper subject of assessment by a jury. It is within their peculiar province to assess damages in such cases. If in any case, the Court can be required to assess damages of this nature, it can only be where the evidence is so certain, as to the amount of damages sustained, that it may be estimated by computation or calculation merely. The evidence in this case is not so certain ; and we are of opinion that the Court did not err in the matter assigned as error by the defendant. As between the plaintiffs and the defendant Chambers, therefore, there is no error in the judgment.
In so far as the decree divests an interest of one-fiith in the audited certificate, out of Thomas J., and vests it in David Halderman, it does appear to be- erroneous. The deed from the defendant David, to the plaintiff Thomas J. Halderman, of the 12th of July, 1853, by which the former conveyed to the latter his interest in the land, then supposed to have been obtained in consideration of the certificate, recites the receipt, by the former, of the latter, of three thousand nine hundred and five dollars. This recital must be deemed prima facie evidence that that sum was paid. This presumption is not repelled by the evidence, unless it be in part by another recital in the deed; and that does not account for but a portion of the consideration expressed to have been received. Until the recital is disproved, or the money admitted to have been received is fully accounted for *by this defendant, he is not entitled to be reinstated in Ms interest in the certificate. The judgment in favor of the defendant Haldeman must therefore be reversed ; and we might proceed [44]*44to give judgment upon the case as presented by the record. But as there is reason to believe the justice of the case, as between the plaintiffs and this defendant, will be more certainly ascertained by remanding it for a new trial, when the investigation of their respective rights will be disembarrassed of the litigation with the other defendant, it will be remanded for a new trial between the plaintiffs and the defendant Haldeman ; and the judgment affirmed in favor of the defendant Chambers.
Ordered accordingly.
W. 8. Oldham, for T. J. Haldeman and others, filed an argument for a rehearing, in which he endeavored to show that the Court had placed a wrong construction on the stipulation for the delivery of the certificate, inasmuch as it appeared from the terms of the assignment to Chambers, and of the deed of revocation, and other circumstances, that it was not doubted at the time of the assignment, that David Haldeman’s authority from the heirs was sufficient; but that the stipulation was intended to provide against subsequent obstacles ; that no subsequent obstacles intervened ; and that the ratification of the act of. their agent by the principals, was all that was required to enable them to maintain this action ; and that if the assignment was not such as to enable Chambers to assign or collect the claim, he should have applied to the plaintiffs for a sufficient assignment, which he could have enforced by suit, if necessary.
T. J. Chambers, for himself, also filed an argument for a rehearing on his claim in reconvention for damages, in which he endeavored to show, by reason and authority, that he was entitled to damages, if not to more, at least to nominal dam[45]*45ages, for the failure of the plaintiffs and David Haldeman to perform their contract in the first instance, and the subsequent efforts of the plaintiffs to obtain the land, while they continued to hold on to the certificate ; whereby this defendant was harassed, injured in reputation and property, and defeated in his honest efforts for the payment of his just debts.
The appellants' having asked a rehearing, and both parties desiring a reconsideration of the case, supporting their respective views by an elaborate written argument, we have given the case an attentive re-examination, in reference to the arguments submitted upon this application. Although it has not been the invariable practice of the Court to deliver opinions upon applications for rehearing where they have been refused, it is deemed proper, in view of the argument upon this application, to indicate the reasons why we adhere to the conclusion formerly arrived at on both branches of the case.
The literal sense of the words used in the obligation of Chambers for title, which the plaintiffs are seeking to enforce, standing alone, disconnected from other parts of the contract, may appear to be that placed upon them by the appellants’ counsel. But they are not to be thus viewed. They are to be considered in connexion with other parts of the contract. All the stipulations which go to constitute the entire substance of the contract between the parties, are to be taken, considered and construed together, so that every part may be interpreted by the whole. And the writing is to be read by the light of the surrounding circumstances, in order more perfectly to understand the intent and meaning of the parties (1 Greenl. Ev. Sec. 277.) So read, it is clear that the mere delivery of the certificate was not all that was in the contemplation of the parties. Haldeman had undertaken to assign and transfer to Chambers the certificate, assuming to have full power and [46]*46authority from the plaintiffs thus to sell and dispose qf it, and pass to the assignee their right and title ; coupled with a power to demand and receive of Brower (in whose hands it had been placed,) the certificate and any loan which might have been negotiated upon it. If Haldeman had the authority which he assumed to have, nothing more was necessary to give Chambers the control and use of the certificate. If there had been no doubt or apprehension respecting the sufficiency of his power, his undertaking to deliver the certificate, etc., within sixty days, would be unmeaning. Chambers, it seems, did not propose to withdraw the certificate from the hands of Brower. But he did not rely solely on the evidences he had, or the professions of Haldeman that he had authority to make the transfer; he had not, it seems, perfect confidence that the assignment and power he had obtained, would give him the control and use of the certificate ; he required a “ warranty, and the engagement of the said David Haldeman to cause the said certificate to be delivered to me (Chambers) within sixty days,” together with any loan, etc. Haldeman was “ to cause the said certificate to be delivered;” how ? why, certainly, by making good the transfer of title, if that should be found not to be effectual for that purpose. How else could he cause it to be delivered, within sixty days, than by perfecting the transfer within that time, so that Chambers might lawfully demand, and Brower safely deliver the certificate ? This was the only way in which he could cause the certificate to be delivered to Chambers. It was not to be expected that'Brower would respect the claim of Chambers, or deliver the certificate unless he had evidence that the right to it had been legally assigned and transferred to him. It was only by the furnishing of such evidence, that Haldeman could fullfil his engagement to cause the certificate to be delivered ; and this he was to do within sixty days.. By the delivery of the* certificate and any loan, etc., the parties evidently intended the delivery of it to Chambers in his own [47]*47right, and to his use ; not as a mere trustee or bailee of the plaintiffs. It was to constitute him the legal and equitable owner and holder of the certificate. That was the contract; it was the purpose and object of the transfer, and what it proposed to accomplish. Unquestionably the certificate was to be delivered by virtue of the assignment, and in no other way ; that was to effect the delivery ; nothing else could. Any other supposition would do violence to the plain sense and meaning of the contract. It was to be a delivery which would answer the purposes contemplated by the contracting parties. It was doubtless supposed the assignment already made might be good and effectual to pass the title. But if not, undoubtedly the parties contemplated that it should be made so. Otherwise it would not answer the purpose intended ; and there is nothing else to which the limit of sixty days, within which Haldeman was to cause the certificate to be delivered, can reasonably be referred, than the perfecting of the transfers, if they should be found to need perfecting, in order to make them operative and effectual to pass the certificate ; in other words, to cause it to be delivered to Chambers the assignee. It is evident that the proposed delivery of the certificate was the last act which the parties contemplated should be performed by Haldeman. But unless it was accompanied by an assignment which would pass the title and enable the assignee to use it, it cannot be supposed that he would#be obliged to receive it. Surely it cannot be contended that he was obliged to take it at all events, though it were utterly worthless in his hands, and go on to complete his part of the contract by making title to the land. Nor would there be more reason to require him to go about procuring the making of the necessary assignment. That was no part of his contract. It is said the certificate was delivered, because Brower recognized the right of Chambers. It is true that he did so, until, upon examination, it was discovered that he had acquired no right by the assignment. When that discovery was [48]*48made, Chambers had the right to consider the contract as no longer binding upon him; though he had even had possession of the certificate, upon the discovery of his want of title, he might at once have returned it, and treated the contract as at an end. He was under no obligation to apply to the plaintiffs to make him a title. If they wished to hold him to his undertaking, it became them to see to it, that there was no default or failure on their part.
The conclusion that the contract bound the plaintiffs to make good the transfer of the certificate within the time specified, seemed so obviously to result from the terms of the contract and the manifest intention of the contracting parties, that we unhesitatingly adopted that as its evident meaning and intention. We cannot doubt that such was its intention ; that such is the legal import of the terms which the parties have employed to evidence their intention. The delivery of the certificate, with the transfer of the right of property, necessarily included the assignment of it; causing it to be delivered to the assignee, comprehended the doing of whatever was necessary to pass and vest in him the title ; consequently it required the making of such an assignment as would have the legal effect to pass the title, and constitute him the legal and equitable holder and owner of the certificate. The contract speaks for itself, and there is no mistaking its meaning. And although we may not look to evidence outside of it, to ascertain the meaning of the language employed, or to interpret the writing ; yet we may do so to see if our construction of the contract accords with what is shown to have been the actual understanding of the parties, as shown by other evidence admitted without objection, and by consent; and we find that it does. It is fully confirmed by the testimony of the witness Larkin, and the answer under oath of the defendant David Halderman ; who certainly knew what the intention really was, and whose answer was admitted in evidence without objection. We do not attach any legal effect to this evi[49]*49dence ;• but refer to it as showing that the intention and understanding of the parties really was what the contract itself imports. We might fortify our conclusion, by a reference to other matters in the record, but it is unnecessary.
But if it be admitted that we were mistaken, and the position of the appellants7 counsel be correct, that the contract was made in the full belief and confidence on the part of both Chambers and David Haldeman, that the latter had full and ample power and authority to sell and transfer the certificate, as he assumed to do, and that they did not have in contemplation the possible contingency that something more might be necessary to complete the transfer and make it effectual, and consequently did not intend to stipulate for anything further to be done for that purpose, but only for the manual tradition of the certificate; and that Chambers was not informed of the want of authority in David Haldeman until apprised of it by the letter of Brower of the 1st of August—what was then the state of case between the parties, and what the rights of Chambers? Undoubtedly there was no subsisting contract of any binding force or obligation whatever ; Chambers had been deceived and imposed upon, by the profession and assumption of an authority by David Haldeman, which he did not possess ; and had the right to treat the contract as at an end, or as though it had never been made, and had no existence in fact; or he had a right to claim its rescission, either instantly, upon the discovery of the deception under which he had acted ; or to give time to the plaintiffs to make good the act and contract of their agent, by completing the transfer, which he had assumed to make without their authority ; and in case of their failure to do so, then to claim a rescission of the contract. He, it seems, pursued the latter course ; and when they failed to make good the assignment, he claimed a rescission of the contract; which he had a right to do, irrespective of any transactions or dealings between the plaintiffs and their agent. It is immaterial that Haldeman may have [50]*50acted in ignorance of his want of authority. The effect upon Chambers was the same as if he had made an intentional misrepresentation. The want of authority operated a surprise and imposition upon Chambers, which entitled him to a rescission of the contract, equally as if the deception had been intentional on the part of Haldeman. For “ even if a party innocently misrepresents a material fact, by mistake, it is equally conclusive, for it operates as a surprise and imposition upon the other party.” (1 Story Eq. Sec. 193 ; Henderson v. The San Antonio and Mexican Gulf R. R. Co., 17 Tex. R. 560 ; Wintz v. Morrison, Id. 372.) If therefore, as the argument assumes, the parties “ entered into the contract under the erroneous supposition that David Haldeman had authority to sell and transfer the certificate,” the contract was void for the want of mutuality, and because of the manifest surprise, deception and imposition which it operated upon the other contracting party. This, it is conceived, is quite too clear for doubt or controversy. And whether we were right or not, in our construction of the contract, the conclusion must be the same. It cannot be denied or doubted that it was the intention of the contract to constitute Chambers the legal and equitable holder of the certificate, by virtue of a legal and valid assignment. No such assignment was made by the plaintiffs ; and nothing can be more perfectly clear, than that they have not placed themselves in a condition to demand of him a specific performance of his undertaking to make title to the land.
Again, the instruction of Thomas J. Haldeman to Brower, before instituting suit, not to deliver the certificate to Chambers, or to his order, is, without more, an answer to this suit for specific performance, so far as he is concerned. His avowed object was to have his recourse upon the certificate, in case he failed in his suit for the land. But he cannot have a decree for specific performance against Chambers for the land, while he thus withholds from him the consideration in[51]*51tended to be given for it. A court of equity cannot indulge a party in thus experimenting upon his rights. If he elected to go for the land, he must have given up the certificate. The conveyance of the land was not a condition precedent to the transfer of the certi ficate : if it had been so intended, it would have assumed the form of' a deed instead of a bond for title. But the latter form of instrument was adopted, doubtless, for-the reason, that it was the understanding of the parties, that the title to the land should not be made, until the assignment" of the certificate was complete and effectual. The instructions,, therefore, to Brower, were incompatible with the suit for. specific performance.
It remains to consider the question upon the other branch of the case—the claim of the defendant for damages. As the case was submitted to the ■ Court, waiving a jury, it results, that if the Court erred in declining the award of damages, it would devolve upon this Court to assess the damages which the Court below ought to have assessed ; unless we were to assume the very questionable power of remanding the case for a trial by jury, when the parties waived that right upon the trial below. We were inclined to the opinion, that, as the suit was for a specific performance, and that was the matter principally litigated, the submission of the case to the decision of the Court, waiving a jury, under the circumstances, might be deemed a waiver of the claim for damages ; and we disposed of the question upon the ground that the Court was not bound to assess unliquidated and uncertain damages. The better opinion, perhaps, is, that the Court is not bound to receive the submission of such a question without a jury; but if the Judge see proper to receive the submission, the Court will assess the damages. It is material then to decide whether the defendant was entitled to an award of damages.
We think it clear that he could not found a claim for damages upon the contract for the breach of it, after his agreement to rescind and actual rescission of it. By his voluntary rescission of the contract he waived any right he may have [52]*52had to sue upon the contract. He could not maintain an action for damages for the breach of a contract, by which he chose not to abide, and which he elected to treat as no contract. The rescission of the contract went upon the ground that it was not the act of the plaintiffs, and was not binding upon the defendant ; that not having given authority to make it, the plaintiffs were not bound by it; it was not their act, and consequently they were not bound, nor entitled to hold the defendant bound by it; and of consequence, they could not be held responsible for its breach, nor for any of the consequences growing out of the breach of it. It is said, however, that by their acts they subsequently ratified the contract. But, I apprehend, if the defendant would have availed himself of their ratification of the contract, he must have consented to be bound by it. He, at least, must not have agreed to a rescission of it, the object of which was to place the parties in statu quo. The rescission of the contract by mutual consent, under the circumstances and in the terms in which it was effected, had the effect of a settlement and adjustment of the matters in question, as between this defendant and David Haldeman, and is an answer to any claim of damages against him upon the contract. If the defendant have any legal claim for damages against the plaintiffs, it is not upon the contract; but is for the injury which has resulted from the putting of legal process in force against him, in the bringing of this suit, and for the slander of his title. But this, however it may have operated to the prejudice and injury of the defendant, does not, it is conceived, constitute an injury for which he can claim legal redress in damages under the circumstances of this case. Although it is a maxim of the law, that there is no wrong without a remedy, and it has been said, that “ wherever the common law gives a right, or prohibits an injury, it also gives a remedy by action (3 Bl. Com. 123,) yet this is to be understood of legal right and injury, and not that legal relief is to be had for every species of loss or injury that individuals sustain by the acts of others. There [53]*53is a class of cases in which a damage is sustained by a party, but a damage not occasioned by anything which the law esteems an injury. This kind of damage is termed in law damnum absque injuria, and for it no action can be maintained. Thus, “ where process is served by mistake on a wrong person, and all the proceedings in the action are taken against him, the defendant so wrongfully sued, will undoubtedly have a good defence to the action, and will consequently recover his costs; but if it be asked what further remedy he has for the inconvenience and trouble he has been put to, the answer is, that, in point of law, if the proceedings have been adopted purely through mistake, though injury may have resulted to him, it is damnum absque injuria, and no action will lie. Indeed, every defendant against whom an action is unnecessarily brought, experiences some injury or inconvenience beyond what the costs will compensate him for.” (Brown’s Leg. Max. 151, 152 ; Sedgw. 30, 31, n.) If the defendant had sold his land on credit of sixty days, instead of for the certificate of public debt, and had taken the most solemn guarantees of prompt payment, and the purchaser had, nevertheless, refused payment, the injury might possibly have been as great as it has been, and yet, it will not be contended, that his measure of redress would not be confined to the recovery of the debt with interest. That might be very inadequate redress for the injury really sustained by the breach of promise and good faith on the part of the purchaser ; but the law recognizes no claim for damages, in such a case, beyond legal interest. Every one is liable to be harassed and injured in his property and feelings by unfounded suits to recover of him property which is his own, but this is not an injury for which he can have legal redress. To give a right to such redress, there must not only be a loss, but it must have been injuriously brought about by the violation of some legal right. And no one can claim a legal exemption from suit, by another who fancies he has a cause of action against him, however unfounded the claim may be in justice or law. An action on [54]*54the case, it is said, lies in certain cases, for special damáge occasioned to the person or property of another by maliciously, and without probable cause, instituting a civil suit. “ There are no cases in the old books ” (said Lord Camden, in Goslin v. Wilcock, 2 Wilson, 302, 305,) “ of actions for suing where the plaintiff had no cause of action ; but of late years, when a man is maliciously held to bail where nothing is owing, or when he is maliciously arrested, for a great deal more than is due, this action has been held to lie, because the' costs in tlje cause are not a sufficient satisfaction for imprisoning a man unjustly, and putting him to the difficulty of getting bail for a larger sum than is l due.” Audit is said to be now well settled that arresting and imprisoning, or holding to bail, where nothing is due, or for more than is due, if done maliciously and without probable cause is actionable. (1 Am. L. Cases, 218.) But these actions are said to stand on the same legal footing as actions for malicious prosecution. (Id. 219.) The gist of the action is the putting of legal process in force, regularly, for the mere purpose of vexation, annoyance or injury ; and the want of probable cause, and malice are essential to maintain the action. The question of probable cause does not turn upon the innocence or guilt of the accused, but upon the prosecutor’s belief of it at the time, upon reasonable grounds. If the party lays all the facts of the case fairly before legal counsel before beginning proceedings, and acts bona fide upon the opinion given by counsel, however erroneous the opinion maybe, he is not liable to this action. (Id. 221, 223 ; 9 Tex. R. 603.) It is clear that, upon the principles on which these actions rest, the claim for damages in this case cannot be maintained. 'The plaintiff, Thomas J. Haldeman, who brought the suit, acted upon the advice of legal counsel. That he believed he could succeed in his action and recover the land is beyond a question. He did not sue for the mere purpose of annoying or injuring the defendant, but for the purpose of recovering the land ; and he doubtless be[55]*55lieved he was but asserting a legal right. For such assertion of right, however injurious to the defendant, he is not liable in damages. The evidence does not show that the defendant sustained any injury in consequence of the sueing out of the sequestration, or that he was subjected to any inconvenience in giving the required bond and security. The injury appears to have resulted from the bringing of the suit, and not from the wrongful sueing of the writ.'
It is very questionable whether an action will lie in any case, for the injury done the plaintiff by slandering and bringing into doubt and distrust his title, by one who claims title in himself, and brings suit for the recovery of the property. In Kendall v. Stone (2 Sanf. Sup. Ct. R. 269,) the Court waived the decision of the question. ■ But they cited from Cook’s Law of Defamation (p. 23,) where he says : “ As soon “ as it appears that the defendant claimed title to the prop- “ erty, to which the slander applies, he is entitled to a non- “ suit.” And in Starkie on Slander (1 Stark. 193 n.) it is said, “ But it is held that, to institute a civil suit, though there “ be no good ground for it, is not actionable, because it is a “ claim of right for which the plaintiff has found pledges, is “ amerciable pro falso demore, and is liable to costs; and “ therefore that no action lies, unless the defendant be mali- “ ciously sued, with intent to imprison Mm for want of bail.” It is clear' that an action will not lie for the slander of title, where the party acted under the advice of legal counsel in bringing the suit; and under the bona fide belief, founded on such advice, that he was entitled to recover.' We conclude that the action for specific performance, and the claim in re-convention for damages, are equally without any solid foundation in law ; and that the judgment heretofore rendered remain the judgment of this Court.