Dubberly v. Black's Adm'r. port the allegation of payment as set forth in the plaintiff's notice"; which charge the court gave, but with the qualification, "that if the money was received by Cannon's attorney as payment of the execution; the evidence of payment was sufficient"; and to this qualification of the charge the defendant reserved an exception. The defendant also asked the court to charge the jury, among other things, "that the plaintiff, before he can recover, must show to their satisfaction that a writ of injunction did issue, restraining the enforcement of the judgment"; which charge the court also gave, but with the qualification, "that the recitals of the injunction bond, as copied in the transcript which was read in evidence, are evidence that a writ of injunction did issue"; and to this qualification of the charge the defendant excepted. The overruling of the demurrer to the notice, the rulings of the court on the evidence, and the refusal of the several charges asked by the defendant, are now assigned as error. GEO. W. GUNN, for appellant. MARTIN, BALDWIN & SAYRE, contra. A. J. WALKER, C. J.-In this case, a surety on an injunction bond, executed in 1845, proceeds by notice against his principal, to obtain a judgment for money paid by him as such surety. It is objected to the notice, that it fails to show that an injunction ever issued. The amended complaint expressly avers, that the plaintiff's principal obtained from a circuit judge an injunction. We think this averment involves the assertion that an injunction issued.-Ex parte Greene v. Graham, 29 Ala. 52; Const. of Ala., article 5, § 8. The same subject was presented in a charge requested. The court charged the jury, upon the defendant's motion, that the plaintiff could not recover, unless it was shown that an injunction actually issued. This charge was certainly correct, for there can be no liability upon an injunction bond, unless the injunction issues.-Shorter v. Mims, 18 Ala..655. And if the surety paid the judgment, when L Dubberly v. Black's Adm'r. there had been no process enjoining it, he did it in his own wrong. . But, while the court. gave the correct charge above stated, it added, that the recitals in the injunction bond were evidence of the issue of the injunction. In this we think the court erred. The bond does not recite that an injunction had issued, but simply that the complainant in the chancery suit had obtained an order for an injunction. The obtaining an order for an injunction from a proper authority, and the obtaining an injunction, are very different things. The rule of practice which was in force at that time, (Clay's Digest, 615, § 27,) required, that the bond should be given in such sun, and with such condition, as the chancellor or judge, might direct, before the injunction issued. Under this rule, the practice which was adopted, and which was obviously necessary, was for the judge or chancellor to order an injunction to issue, upon the execution of a bond, with prescribed condition and penalty, and the injunction was issued after the giving of the bond. If the injunction had issued before the bond was given, the rule would have been violated. It is obvious that the recital of the bond in this case shows nothing more than that it was given, in conformity to the rule of practice, after the fiat, or order for the injunction. [2-3.] The objection taken by demurrer, that this proceeding could not be instituted in Mason county, is untenable. Section 2650 of the Code authorizes the making 、of the motion in the county of the defendant's residence. If an injunction issued in 1845, and the bill was afterwards dismissed in the same year, (the injunction being thereby dissolved,) a statutory judgment against the obligors in the injunction bond resulted, .notwithstanding the register may have failed to issue to the clerk of the circuit court a certificate of dissolution of the injunction, as required by the act of 1841.-Wiswall v. Munroe, 4 Ala. 9. This statutory judgment, thus resulting, would be a judgment rendered against a surety, within section 2644 of the Code; and the surety, having satisfied the judgment, would have a right to proceed by notice, as is done in this case. Humphries v. Dawson. [4.] We think the cause of action is sufficiently shown by the notice to have appertained to the plaintiff in his capacity of administrator.-Watson v. Collins' Adm'r, 37 Ala. We think, also, that the notice sufficiently avers that the plaintiff was the administrator of the estate. [5.] After Rutherford, the witness,. had ceased to be sheriff, and had returned the execution, his authority, virtute officii, to receive payment of the execution, was gone. But the money paid to Rutherford was handed over to the plaintiff's attorney as a payment, and seems to have been so accepted. This fact makes the payment good, and, notwithstanding Rutherford's want of authority, would discharge the execution. Care in the procurement of the proper evidence will avoid the other questions presented by the rulings upon the admissibility of testimony, and we therefore do not notice them in this opinion. Reversed and remanded. HUMPHRIES vs. DAWSON. IDETINUE FOR SLAVES.] 1. Amendment of complaint.—Where the plaintiff sues as "trustee of L. H. and F. D.,” two married women, the complaint may be amended, (Code, § 2403,) by adding the words "and for the remainder-men who are their children." 2. Plea in abatement of pendency of another action.—The priority, and not the mere pendency, of another suit founded on the same cause of action, is available under a plea in abatement; but neither a bill in chancery, nor an action brought in another State, is good matter in abatement. 3. Competency of donor, as witness for denez.-The donor of a slave is a competent witness for the donee, or one claiming under the donee, in a suit involving the title to the slave. 4. Identification of exhibit to deposition.-Where the commissioner certifies," that the annexed deed, hereto attached, marked 'A,' was shown to the witness, and by him examined and recognized to be the original deed by him signed and delivered," a deed which is shown to have Humphries v. Dawson. been enclosed in the package containing the deposition, and which is marked as stated in the certificate, is sufficiently identified as the exhibit referred to. 5. Construction of deed, as to respective rights of trustee and beneficiaries. Where a female slave is conveyed by deed to a trustee, "in trust that he shall take and receive all the profits and income arising from the said slave and her increase, and apply the same to the education and maintenance of L. and H.," his two daughters, "and in trust, upon the marriage or coming of age of the said L. and H., to permit them to have the full use, authority and command over the said slave and her increase, (a division or partition having been made,) for and during the natural lives of the said L. and H.; and after their death, in trust further to convey the respective portions of the property to their children, in fee-simple forever,”—if the slaves are divided between the two danghters, on their marriage or coming of age, and the respective portion of each delivered to her by the trustee, he cannot afterwards, during the lives of the daughters, maintain detinue against them, or any one holding under them, to recover the slaves; and if, without making a division, he delivers all the slaves to one of the daughters, on her marriage, and afterwards conveys other property to the other daughter in lieu of her interest in the slaves, he cannot maintain detinue for the slaves, against a purchaser from the daughter to whom they were delivered. APPEAL from the Circuit Court of Chambers. THIS action was brought by Samuel Dawson, against John R. Humphries, to recover a negro woman named Becky, with her four children, and damages for their detention. The original complaint is nowhere set out in the record; but the bill of exceptions states, "that the plaintiff moved to amend his complaint, by adding, after the words 'trustee of Leonora Hobbs and Frances Dillard,' the words and for the remainder-men which are their children; to which amendment the defendant objected, as changing the character in which the plaintiff sued, and as putting a new title in issue; but the court overruled the objection, and allowed the amendment to be made, and the defendant excepted." The defendant then prepared and tendered a plea in abatement, duly verified by affidavit, alleging that, on the 24th May, 1858, before the complaint in this case was amended, a bill in equity was filed on the chancery side of the circuit court of Lowndes county, Mississippi, Humphries v. Dawson. in the name of Samuel Dawson, as trustee of Leonora Hobbs and Frances Dillard and their children, against the defendant in this suit and others, to recover the slaves here in controversy; which suit, the plea averred, was still pending and undecided, and involved the same title that was put in issue by the amended complaint. The court rejected the plea, on the ground that it came too late; to which the defendant reserved an exception. The plaintiff claimed the slaves under a deed from John D. Dawson, which was executed in South Carolina, dated March 1, 1841, and in the following words: "Know all men by these presents, that for and in consideration of the natural love and affection I have and bear to Leonora and Frances, daughters of Samuel Dawson, and for and in consideration of the sum of one dollar to me in hand paid at and before the sealing and delivery of these presents, the receipt whereof I do hereby acknowledge, have bargained, sold, assigned, and set over to the said Samuel Dawson, all my right, title and interest in and to a negro girl, named Becky, and her increase; to have and to hold the said negro girl and her increase, unto the said Samuel Dawson, his heirs, and assigns, to his and their own proper use and behoof forever; in trust, nevertheless, that the said Samuel Dawson take and receive all the profits and income arising or to arise from the said slave and her increase, and apply the same to the education and maintenance of Leonora and Frances; and in trust, upon the marriage or coming of age of the said Leonora and Frances, to permit them to have the full use, authority and command over Becky and her increase, (a division or partition having been made,) for and during the natural lives of them, the said Leonora and Frances; and after their death, in trust further to convey the respective portions of the above-named property to the children of the said Leonora and Frances, in fee-simple forever. In witness whereof," &c. For the purpose of proving the execution and delivery of this deed, the plaintiff took the deposition of said John D. Dawson. Before the trial began, the defendant moved |
