Bullock v. Ferguson , 30 Ala. 227 ( 1857 )

WALKER, J.

It was competent for the debtor of Mrs. Boothe’s trustee, to have paid the money which he owed into court, and thus to have relieved himself from interest. Not being restrained from using the money, he could not in any other way relieve himself from the payment of the interest. — Curd v. Letcher, 3 J. J. Marsh. 443; Chare v. Manhardt, 1 Bland’s Ch. R. 333. After the dissolution of the injunction, the trustee of Mrs. Boothe had an undoubted right to coerce payment of the interest; and the failure to do so was the result of an omission to assert a legal right, and not a consequence of the injunction. There was, therefore, no error in the refusal to charge by the court as requested by the plaintiff.

Upon the authority of Ferguson & Scott v. Baber’s Adm’rs, 24 Ala. 402, we approve the ruling of the court below, which denied to the plaintiff the right to recover fees paid counsel for their services in the chancery cause, when carried to the supreme court. To this proposition, however, Judge Stone prefers to remain uncommitted.

The bond sued on was conditioned to pay such damages as the plaintiff might sustain by the suing out of the injunction, “should the same be dissolved.” Upon this bond, the plaintiff was only entitled to recover the actual damages. — Seay v. Greenwood, 21 Ala. 491; Kirksey v. Jones, 7 Ala. 622; Spivey v. McGehee, 21 Ala. 417. The actual damages, which may be recovered on the bond, “must be the natural and proximate result or consequence of the injunction.” — Donnell v. Jones, 13 Ala. 490; Spivey v. McGehee, supra. Under these rules, the plaintiff was not entitled to recover the costs imposed upon the plaintiff as tire terms of the continuance of this case; nor for the trouble and expense of rescinding the contract for the hire of slaves of the trust estate, in consideration of which the notes enjoined were given; nor for the privations and physical hardships to which Mrs. Boothe, the cestui que trust, was subjected in consequence of the inability of the trustee (produced by the injunction) to collect and pay over the trust money to the use of his cestui que trust. — Sims v. Glazener, 14 Ala. 695; Ivey v. McQueen, 17 Ala. 408.

The views above expressed are decisive of all the matters presented by the assignments of error against the appellant, and the judgment of the court below is affirmed.