Dunn v. Davis 37 Ala. 95

DUNN vs. DAVIS.

[ACTION ON injunction BONB:

i. Averment vf h'eaeh.- — In an action on an injunction bond, conditioned, that tho principal obligor “ shall well and truly do and perform all such matters and things as may be required of him ’iii the premises* and pay all sileh costs and damages as may bb recovered against him;/, for the wrongful suing- out of said injunction)” an averment that thtf’’ injunction suit was dismissed, and the injunction dissolved, and that tlié defendants have not paid the reasonable counsel fees necessarily incurred by the plaintiff in the defense of said injunction suit) does not show a breach of the bond-.

*96Appeal from the Circuit Court of Shelby.

The record does not show the name of the presiding judge.

This action was brought by Josiah Dunn and others, against Bennett Davis and others; and was founded on a penal bond, dated the 19th September, 1849, and conditioned as follows: “"Whereas the above bound Bennett Dav,is has this day filed in the chancery court for said county his original bill against the said Dunn, Parker and wife, and Beavers, and, amongst other things, prayed an inj unction, in the nature of an attachment, which has been granted by the lion. W. W. Mason, — now, if said Davis shall well and truly dó and perform all such matters and things as may be required of him in the premises, and pay all such costs and damages as may be recovered against him for the wrongful suing out of said injunction, then this bond to be void.”

The complaint set out this bond, and averred the following breaches of the condition: “ 1. And plaintiffs aver, that afterwards, at the July term, 1855, of said chancery court, said Bennett Davis, on his own application to said court, caused said bill to be dismissed, and the same was thereupon dismissed out of said chancery court, and said injunction was dissolved; and at the time of the dismissal of said chancery suic, said debt, due to the plaintiffs as .-aforesaid, was barred by the statute of limitations of six years, and the plaintiffs’ remedy to collect said debt, with the interest thereon, became and was wholly barred ; and said Beavers (?) has failed and refused, and does still fail and refuse, to pay said debt, or any part thereof, to the plaintiffs ; by means whereof, said sum of money has been wholly lost to said plaintiffs, to their damage twelve kun-'dred dollars; wherefore plaintiffs say, that the condition oí said bond has been broken, and said defendants have not paid them the said sum of twelve hundred dollars, or any jpart thereof. 2. And plaintiffs say, that the condition of *97• said bond has been broken in this — ^that they were compelled to employ necessary counsel, attorneys and solicitors, •to aid them in conducting the defense of said chancery suit, and to procure the dissolution of the injunction issued in said cause; which said reasonable and necessary counsel fees were worth the sum of one hundred dollars ; and the said defendants have not paid the same, nor any part thereof, to the said plaintiffs'; to their damage, twelve ¡hundred dollars.”

The defendants demurred to the complaint, and to each •assignment of a "breach, — “1st,.because the action is prematurely brought; -2d, because there is no averment which shows that plaintiffs have a cause of action on the bond ; «and, 3d, because there is no sufficient averment of a breach of the condition of said bond.” The court sustained the -demurrer, and its judgment thereon is now assigned as ’error.

Eyed & MoegáN, for the appellants,

cited Zeigler & Hail ©. -David, 23 Ala. 127; Spivey v. McGehee, 21 Ala. 417; Dielcson v. Bachelder, 21 Ala. 699; Garrett é Hill v, Logan, 19 Ala. 344.