
    DUBBERLY vs. BLACK’S ADM’R.
    [SUMMARY PROCEEDING BY SURETY AGAINST PRINCIPAL.]
    
      1. Averment and proof of ñesue of injunction. — An avebficAt, that the principal obligor in an. injunction bond'“obtained an injunction” from a circuit judge, involves the assertion that a writ of injunction, was issued; but a recital in the bond, that he had “ obtained an order for an injunction,” does not show thafrthe writ was issued.
    2. Statutory judgment on injunction bond. — On the dismissal of a bill in chancery, and the consequent dissolution of tlie injunction, under the law which was of force in 1845, a statutory judgment resulted against the obligors on the injunction bond, notwithstanding the failure of the register to certify the dissolution of the injunction to the clerk of the court in which the judgment at law was rendered.
    3. Summary proceeding by surety against principal; when maintainable, and where .instituted. — A surety on an injunction bond, having paid the judgment against his principal and himself, which resulted by /operation of-vJaw from the dissolution of the injunction, may maintain a summary /proceeding against his principal, under section 2644 of the Code; -and, under section 2650, the motion may be made in the county of the defendant’s residence.
    4. Sufficiency of notice, in averring plaintiff's appointment and'righi to site as administrator. — Held, that the notice in this case showed with sufficient certainty the plaintiff’s appointment as-administrator, and that the cause of action apipertained to him in his representative capacity.
    5. JPaymentof .execution to sheriff after expiration-of term'!of office. — A sheriff has no authority, after he has gone'out of 1 office, to receive payment of an execution which he has returned; yet, if he receive’» the money, and pays it over to the plaintiff’s attorney, by whom it is accepted as a payment, the payment is good, and the exéoutiob. thereby discharged.
    Appeal from the Circuit iCourfc of Macon.
    Tried before the Hon. Eüíiert ‘Dou&herty.
    This action was ■eominéhcecl by á -hotibb, ’'ivhich, afe amended, was in the following words is
    “To Allen DubberlyYou are 'hereby notified, that whereas David Cannon heretofore, to-wit, at the October term of the circuit court of Montgomery 'cohnty, oh (to-wit) the 31st October, 1842, at (to-wit) in said county of Montgomery, recovered a judgment against .yóü, the said Allen Dubberly, for the sum of $343 50, and costs of suit in that behalf; and whereas, also, on the 16th May, 18.45, youvthg.,said,Allen Dubberly, did file your certain bill in the chancery court of Montgomery, and did apply for, and obtain from. Non...Greorge ¶¶. Stone, one of the circuit judges of the courts of common law for the State of, .Alabama, an. injunction*..restraining the said David Cannon from proceeding further to- collect said judgment, and from proceeding in., a., certain- action of ejectment then pending in the ' circuit court :®f «-Montgomery county, in favor of said David Cannon; and against you, the said Allen Dubberly; and whereas, also, you did, on the said 16th May, 1845, on your application for said injunction, execute your certain -injunction bond, with Thomas Bradley, Andrew Dickey, and Byal Black,,as sureties on the same, in substance as follows ”, &c., setting out a cop'y of the bond; “and whereas, also, at the-July term, 1845, of the chancery court of Montgomery county,-there was made the following order and-.,-decree”, &c.,„ setting out the decree dismissing the bill with costs ; “ and whereas, also, there issued from_Wi L. .Coleman, the register of said chancery court of Montgomery..county, to, the clerk of the,circuit court of said county,-a-certificate in-substance as follows,” setting it out;. “and whereas;,by,reason of said injunction bond, and the dismissal of said'bilkin.chancery filed by you against the said David Cannon, the said Thomas Bradley, Andrew Dickey, and Byal Black, the sureties on said injunction bond, became liable by operation of law, as your sureties on said bond, to the said, David Cannon, to pay him the said sum,of. money mentioned in said judgment at law, so recovered against you as aforesaid, on (to-wit) tbe 31st October, 1842, in -the circuit court of Montgomery county, for the sum .of- $343 50, and interest thereon, with the costs .-of suit; and whereas, also, the said Byal Black, on (to-wit) the 1st July, 1852, did pay to the said David Camion the sum of $255, in part payment of said judgment so recovered against you as aforesaid; and whereas, afterwards, to-wit, on the 15th October, 1852, the said Ryal Bl'áck did -pay' the said David Caution the further sum-of $35,’6’93‘, the balance'ofsaid judgment and costs recovered 'Against you as aforesaid by tlfe said David Can'll on : Now,-tlierefoi'e, you are hereby notifidd, that I, James W. Black, administrator de lonis non of the goods, chattels and'creditstwhiek were of the said Ryal Black, deceased, at the time of his death,- will move the circuit court of Mahon county, on'the first Saturday of said court, to be held for said-county on the 9th April, 1856, for a judgment against you, for the several sums of money paid by the' said Rya'l Black, 'deceased, as aforesaid, to the said David Cannon, for you, and as your surety on said injunction bondi with interest thereon from the respective dates of said several payments before mentioned, and also for the costs'of this motion.”
    The condition of the injunction bond, as copied into the notice, was as follows : “ The condition of the above obligation is 'such, that whereas the above-bound Allen Dubberly has, the day and date above written, prayed for and obtained an order for an injunction, restraining the said David Cannon from proceeding further to collect a certain judgment described in said bill, and from proceeding in a certain action of ejectment, now pending in the circuit court of Montgomery county, in favor of said David Cannon, and against the said Allen Dubberly; now, if the said Allen Dubberly, in the event the said injunction is dissolved, shall pay said judgment, and all damages and costs of suit, which may be adjudged complainant (?) for the wrongful obtaining his injunction, then this obligation to be void,” &c. The chancellor’s decree in the injunction suit was in these words: “In this case, it is ordered and decreed, that the bill be dismissed, with costs.” The register’s certificate to the clerk of the circuit court simply stated, “that the foregoing is a copy of the injunction bond in said case, and a copy of the order and decree rendered at the July term, 1845, of said court.”
    The defendant demurred to the notice, and assigned the following (with other) causes of demurrer : “ because there is no sufficient averment that an injunction did issue”:; “ because it does not show that there was any judgment against plaintiff’s intestate” ; “because there was no such averment of payment as will sustain this proceeding”;; “ because this court has no jurisdiction of said proceeding”;; “because the plaintiff’s demand, if any he has, has become stale, and is barred by the statute of limitations”,; and “because there is no sufficient averment of the plaintiff’s right to maintain the proceeding.” The court overruled the demurrer, .and the defendant excepted ; and issue was then joined ,on the - pleas of-“the general issue -and payment.”
    On the trial, as appears from the bill of exceptions, the plaintiff ¿read in evidence a certified copy of .the 'record and proceedings of the circuit court in the .case of David Cannon ¿against Allen Dubberly, in which was included a copy -of; the chancellor’s decree inf he injunction suit, and -of -the register’s certificate on .the dismissal of the bill, as above set out. The-defendant objected to these portions of the‘record, on the ¿ground-that they were mere secondary evidence, and reserved an exception to the overruling of his '.obj ections. To .prove .the payment of the j udgment by hi-s intestate, the plaintiff introduced one -Rutherford as a witness, who was the sheriff of Macon county in 1848-49, and who testified, 'that after he had ceased to be sheriff, ..and had returned an execution issued on said judgment against Dubberly and his sureties .on -the injunction bond, -Ryal JBladk'paid him -the -money due.on the execution, and that he paid it over, for said Black, to the attorney of the plaintiff in -execution; and said attorney testified, that he accepted the money, as attorney for Cannon, in satisfaction -of the execution. The defendant objected to this evidence, ;on the '-ground that it was incompetent and insufficient to ¡prove payment.; but ;the<court overruled his objections, and he excepted.
    The defendant requested the court to «dharge the jury, that the payment to Rutherford, when he was not the sheriff, and had no execution in his hands, “ did not support the allegation-of payment as set forth-'in "the plaintiff’s notice”which charge the court; gave, bufrwith the qualification, “that if the money.'was ■ received by Cannon’s attorney as payment of the execution; the evidence of payment was sufficient”'11 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 tianscript' 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 plaintiffs principal obtained from a circuit judge anfinj unction. 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 inj-unctiomactually issued. This charge was certainly correct, for there can be no liability upon an injunc- - tion bond,, unless»the injunction issues. — Shorter v. Mims, 18 Ala. 655. And if the surety paid, the judgment, when 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 dnjunctian had .issued, .but simply that .the .complainant in í the chancery suit <had obtained an order for an injunction. 1 The obtaining .an order for an injunction from .a proper . authority,;and the obtaining an injunction, are very differ- •- ent things. ."'The rule of practicewhich .was in force..at. t that time, (Clay’s Digest, 615, § 27) required, that the ¡...bond should be given in such sum, and with such condition as the chancellor or judge, might direct,.before‘the injunc5 tion issued. ' Under, this rule, the practice which • was ; adopted, and which was, obviously necessary, was for the jpSge or chancellor,to order an injunction to issue, upon -, the execution. of .a bond, with prescribed condition and penalty, and tbe injunction was issued after the giving of the bond. If the injunction bad issued .before ¡the bond • was given, the rule would have been violated. It is, obvi- . ons that the recital of the bond in this case shows nothing i more than that it was given, in conformity to- the rule-.of ppractice, after thor order for the injunction.

The objection taken by demurrer,,that thispr.ov seeding could not be instituted in Mason county, is untenai:Me. Section 2650 of the Code authorizes- the. making v of.the,motion in the county of the defendant’s residence. ■ If an injunction issued in 1845, and the.bül was afterwards , dismissed in-the-same year, (the injunction being thereby dissolved,) a statutory judgment against-tbe-.obligors in the injunction bond resulted, .notwithstanding the register may have failed to issue to the.,clevk.,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 he a judgment rendered against a surety,, within section 2644 of .the Code; and the surety, having satisfied the judgment, would have a right gto proceed by notice, as is' done in this -(me.

We think the cause of action is sufficiently shown by the notice to have appertained tff'the plaintiff in his capacity of administrator. — Watson v. Collins' Adm'r 37 Ala. We think, also, that the notice "sufficiently avers that rfeke plaintiff was the administrator of the estate.

After Rutherford, the Witnessj. had ceased' tó 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 go 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 ,no.t notice them in this opinion.

Reversed and remanded.  