
    HARRISON vs. McCRARY.
    [Bpx IN EQUITY -FOR SPECIFIC PERFORMANCE OF AWARD, SETTLEMENT?-OF PARTNERSHIP ACCOUNTS, INJUNCTION, &C.]
    
      of action at law. — A courtof equity -will not enjoin an action- ■<-. at-Jawibr a trespass, on the ground tliat.the plaintiff.thereiu..is, ap& U was at the, timo of tlie alleged trespass, indebted to tlie defendant on account of other matters, and is insolvent.
    2. Dissolution, of injunction, without dismissal of hill.- — An injunction may properly bo dissolved for want of equity, where the allegations of the bill are not sufficient to authorize the interference of the court by in- ■ junction, although the bill maybe retained for other relief.
    Appeal from the Chancery Court of Dallas.
    Heard beforedbe lion. James B. Clark.
    This complainant in this case, L. 0. Harrison, and P. ÍL McCrary, the defendant, formed a. mercantile partnership in October, 1851. 5 the business to be conducted in tlie town of Summerfield, in Dallas county, and to continue for the period of five years, unless sooner dissolved by agreement. On tlie 22d December, 3 853, Harrison bought out McCrary’s interest in the firm,-and employed him, at a fixed salary, to collect the outstanding debts'; and tlie profits and losses of the business up to that time, as shown by the books, were adjusted between them by written agreement. It was soon afterwards discovered tbat the data on which this agreement was based were incorrect, and the parties thereupon entered into another written agreement, which provided, in substance, that the settlement between them should be made according to the principles of the original articles of partnership, instead of the .second agreement above mentioned. Not being able to settle the partnership : accounts between themselves, the parties entered into a written agreement, under seal, dated the 23d September, 1857, to submit the matters in dispute to arbitration; the award to be entered up as the judgment of the circuit court, under the provisions of tbe’-'Code. On the 4th May, 1858, an award was made by -two of the arbitrators, deciding tbat McCrary was indebted to Harrison in the sum of $5,767 57, This award was filed in the office of the circuit clerk, and an execution was thereon issued against McCrary, which was levied on four slaves ; and these slaves were afterwards sold under the execution, and were purchased at the sale by Harrison, At the term of tbe circuit court to which the execution was returnable, McCrary made amotion to quash it, and to set aside the award; and his motion having been'overruled, he excepted to the ruling and decision of the circuit court, and sued out an appeal to the supreme court, where, at the June term, 1860, the judgment of the circuit court was reversed, and the cause remanded,~ the supreme court holding, that “ the award was, at least ¡¡rima facie, void.” — See the case reported-in 36 Ala. 677. Soon after the levy of the execution oh the slaves, (at what precise time does not appear,) McCrary brought an action of trespass against Harrison, to recover damages for the taking of the slaves ; and that action was pending on the 7th July, I860, when Harrison filed his bill in equity against McCrary, — alleging, in addition"'to the facts above stated, that McCrary was largely indebted to him on account of the partnership transactions between-them, and was insolvent. The prayer of"-ihe bill was, that the action at law might be perpetually enjoined, and-the award specifically performed' -, or, in the event'the court should decline to decree a performance of the award, that an account might be taken of all the partnership transactions, and that the value of the slaves, with their hire, might be applied to the satisfaction, pro tanto, of the amount which might be found due to"the complainant; and the general prayer, for other and further relief, was added. On the filing of this bill, an injunction was granted by a circuit judge. After putting in an answer, in which was incorporated a demurrer, the defendant moved the-chaucellor to dismiss the bill for want of equity,'and, to dissolve tbe injunction. On the hearing of this motion, the chancellor dissolved the injunction, but refused to dismiss the bill for want of equity-; and the dissolution of the injunction is now assigned as error by the complainant.
    Byrd & Morgak, for appellant,
    cited Stdry’s Equity, 893-97, 901, 902, 906, 907,' 957-58-; Márrell v. Ells-worth, 17 Ala. 576; Burden v. Stein, 27 Ala. 104.
    
      Pettus, Pegues & Dawson, contra,
    
    cited Hamilton o. Adams, 15 Ala. 596 ; Wiggins o. Armstrong, 2 Johns. Ch.-„ 144 ; Norris v. Norris, 27 Ala. 519.
   R. W. WALKER, J.

There was no error in the decree dissolving the injunction. The complainant,admits that he committed a trespass in taking and carrying.away the defendant’s slaves; -.and- he seeks to enj.oin the action for that trespass, -on the ground that the defendant,- is indebted to him on account -of partnership transactions,- and is insol- - v&nf. The well-settled rule, that a creditor at large, or before judgment, is not entitled-to an injunction, to prevent the debtor from fraudulently disposing of his prop---erty, (Wiggins v. Armstrong, 2 Johns. Ch. 144; Mercer v. Downs, Hopkins’ Ch. 305,) would seem to be decisive, against the right to an-injunction in this case. For, if the creditor can take his debtor’s property. by force, to secure his debt, and hold on to it by enjoining, the action of tres- - pass, he is permitted to accomplish by force, sanctioned in-¡ equity, that which the court would not allow him to do without force. To suffer that to be done, would be a plain violation of the familiar and wholesome., principle, that a . right cannot grow out of a wrong. — See, further, Hamilton v. Adams, 15 Ala. 596. In addition to this, a court of law is the proper-tribunal .-to- ascertain the damages, to which a .party is entitled for a trespass.uppn his property. ‘ Smart'.: money,’ or vindictive damages, ean.be recovered at law;-..but a court of equity cannot consider'.that question at all, and therefore cannot ascertain the damages. The effect of'-, sustaining the injunction, in such a case, must be to deny the right of the injured party to smart money.

It is hardly necessary to add, that where á bill does not\>, warrant an;-:inj unction, the injunction may properly be dis- - solved, although th.ej>ill may be retained for.other relief.-r'Norris v. Norris, 27 Ala. 529.

Decree affirmed.  