
    Lynch vs. Colegate.
    Whenever, on motion to dissolve an injunet on, it appears from the answer that the complainant was end tied to an injunction at the time .of obtaining it, the same shall continue until filial hearing, or further order, unless ihe defendant admits everything alleged in the bi'l on account of which che injunction was obtained. When that admission is made, mid the injunction has been to stay execution at law, the injunction maybe dissolved, with a proviso that not more be le\i”d than remains due after allowing eve ry thing claimed by the comp’ainaut. Rut when a proper ground for the injunction is ndjniiled by the answer, and* there still remains a divjiute between the parties, the injunction is invariably continued until final hearing, or further or-
    A purchased land from B, and, in the bond given for the purchase money, C becomes bound as surety, E having impressed him with an idea that the money might be paid from the sale of wood on the land, to prevent the sale of which B after-wards obtained an injunction. On a bill brougbtbythe surety, it was decreed that he shopld be relieve 1 from lus surety-
    Au appeal or writ of ei’iOr standing under rule argument, does not alíate by the death of either party, (note,)
    
    Appeal from a decree of the court of chancery, perpe*' tuating an injunction. The bill of complaint of Colegate, the present appellee, filed the 10th of November 1800, stated, that one Kingsmore, in 1797", purchased of Lynch, the appellant, a tract of land for a large sum of money, to be paid by instalments; that the first instalment amounted to ¡61200, and was intended, in a great measure, to be paid out of the first crop on the land, and by the sale of wood; that Lynch declared that the. wood on the land would nearly pay for the land, and it was understood and agreed, that the wood should be cut and carried to market for the purpose of paying the instalments, (in aid of the crop,) as the same should become due; that in consideration of the express agreement that Kingsmore should have leave to cut and sell the wood in order to meet the instalments, the complainant became bound in a bond with him to Lynch, conditioned for the payment of the first instalment of ¡61200, with interest; that the complainant would not have become security for the instalment, but under the express proviso and engagement that Kingsmore was to have leave to pay it oft' by wood; and that the inducement of his buying the land was the representation and statement made by Lynch, that the wood on the premises, so convenient to market, would nearly pay for the land. That Kingsmore paid ¡6300 on account of the instalment; and other sums of money, and articles or accounts were paid, which Lynch has, or means to apply to other instalments, although they were not due at the time. That Kingsmore cut down 300 cords of wood to enable him to pay up the balance of his first instalment, and to exonerate the complainant, his surety; and that Lynch fraudulently meditated an act of oppression which he carried into effect, by bringing suits, immediately after the first instalment became due, on the bond against Kingsmore and the complainant, and filing a hill in chancery, and obtaining an injunction, which prevented Kingsmore from getting the wood to market, and to cut other wood, &c. That judgment has been obtained against the complainant by Lynch, who has not credited the ¡6300, nor with such other sums of money, wood or arricies, which he may have received. The bill calls upon Lynch to answer, &c. and to declare, what sums of money, &c. he hath received. Prayer for relief, and for a subpena, and an injunction against executions issuing on the judgment, &c. Subpena and injunction accordingly issued.
    The aimver of Lynch, which was filed on the 25ill of November 1800, denies that he ever declared or agreed that the wood on the land should be cut and carried to market for the purpose of paying the instalments, (in aid of the crop,) as the same should become due or otherwise; nor was any agreement ever made by him with Kings-more, by which the same was to be paid by wood, or that wood should be cut and sold from the land for that purpose; and therefore no inducement from such agreement sould have been the motive of the complainant for becoming surety for Kingsmore, no such agreement having ever been made, fie admits that lie received £300 9 4, at sundry times, as appears by one of the accounts exhibited, which are all the payments whatsoever made by Kings-more on account of the bond in which the complainant is surety. He never denied the payments, nor- claimed to appropriate the same to any other instalment, but hath been, am! now is, ready and willing to credit the same on the bond far £1200, in which tile complainant is surety. That the credits in the other account exhibited were paid and received, and applied to the discharge of another debí due to the defendant for the articles mentioned in the debit side of that account, sold and delivered, &c. and had no relation to the land purchased. That Kingsmore and the complainant, having failed to comply with the condition of their bond, the defendant caused suits to be instituted for the recovery of the balance due thereon, and hath obtained judgments at law. That Kingsmore having proceeded, against the consent of the defendant, to th^ cutting and selling timber, and other trees, growing on the laud, and clone other acts greatly endamaging the estate, and injuring the defendant, he applied for and obtained an injunction, &c. He denies all fraud, &c.
    ILvx-sok, Chancellor, (November 25th, 1800.) The defendant having put in his answer, and entered on the docket notice oí motion to dissolve the injunction in this cause issued, it is at his instance, ordered, that the motion stand for hearing at next term; provided a copy of this or?the complainant before the end of the der be served on present month.
    . A .service of the above order was proved to have been made, on the 27th of November, 1800.
    Hanson, Chancellor, (January 6th, 1801.) The motion to dissolve, &c. being submitted, &c. The Chancellor must, on this occasion, repeat a rule, which he has always adhered to, and which he conceived was well known— “Whenever, on motion to dissolve, it appears from the answer that the complainant was entitled to an injunction at the time of obtaining it, the same shall continue until final hearing, or further order, unless the defendant admits every thing alleged inthebill, on account of which the injunction was obtained.” When that admission is made, and the injunction has been to stay execution at law, the injunction may be dissolved with a proviso, that not more be levied than remains clue after allowing every thing claimed by the. complainant; but when a proper ground for the injunction is admitted by jhe answer, and there still remains a dispute between the parties, the injunction is invariably continued until final hearing, or further order. Great and obvious inconveniencies would follow from a different pvac-. tice. In tire present case, it appears from the answer, that the complainant, at the time of obtaining his injunction, was liable to an execution, (if liable to an execution at all,) for more than was due, but in admitting this, the defendant denies the other grounds of equity; he denies that the complainant is entitled to all tice deductions which he claims, so that a dispute remains between the parties. This case, like many other cases, shows, that taking an indefinite judgment does little for the plaintiff at law, but affords a fair pretext to the defendant at law for further delay, and is almost sure to produce a fresh suit between the parties. It is thereupon adjudged and ordered, that the injunction, in this cause heretofore issued, shall continue until final hearing of the cause, or further order. .
    The complainant entered a general replication to the answer of the defendant, and a commission issued, and testimony taken thereunder, and the cause submitted, &c.
    Hanson, Chancellor, (October term 1801.) It appears to the Chancellor that the defendant, from his conduct, ought to be considered as having released the complainant from Ms engagement. it is plain from flic evidence, that the defendant had at least impressed the complainant, before he became r-ecuiity for Khtgsinore, with an idea, that the rn.mev would, or might be, paid from the sale oí timber, ami oilier wood, on the laud, and it ia extremely probable, if not certain, that the complainant was thereby induced to become a surety. Whether or not, without that inducement he would have become security, is not material. It is certain that if his engagement remains binding, he ha.-t been o;- wav Le gioafry injined by the defendant's obtaining an injunction; and tiic question is, whether he shall sustain that injury, or the defendant, who has done the wrong, be deprived of one pa-i of his security? The Chancellor on this question cannot hedíate, and on the paper,-; and pi oceedings in the cause does not perceive how he can do otherwise than decree a perpetual injunction. Deemed, that the injunction, heretofore issued in this cause, be perpetual, but that each party bear his own costs.
    Yroiii which decree the defendant ¿appealed to this court; .and the case '¿Lauding under rule argument at this tena, the uppc?l(m‘,ti death was suggested, and the case was entered dialed (a.)
    S'idgahi, Johnson, (Attorney-General,) and W. Dorsey, for the appellant.
    
      .hfy.j for the appellee.
    (a) It <!oss r.of a p year -viic S,er 0!- not ihe entry of abatement in thi« ccu-t* was made bv ihe court niter aigurnent, or by the counsel ecucertud In the ra^e oí Rockhe, vs Johnson, et. ux in this coiMí ft i u s s ¡\ osi tne haslet n Sshore, jt appealed that at dune term UhO, the ca.'e w,i? standing under rule argument, when the death, of ! t.e fkilntij}' iu error was st.« ge‘-ttd.
    
      J //a'¡kj. lor the dcíe-ndaut ¡it error,
    submitted the question to the con in, whether or not ,N hi? cn-;' stand'ng under rule argument, 4he death of the plainufr in cuor abated the writ of error, lie M'.ferred *« the act* oí ¡7 5, ch. -SO, and IfiOJ, ch 71>, s. 38
   Th Tj (1 ourt

tit cided that the case did not come within the provisions o! the acts of !'?83, ch. 80, and 1801, ch 7i Hut whether the on1 oí error abaten, the case being under rule argument, the court were not then prepared to decide, and the final decision of the question they postponed for iurther consideration, Afteiivards, at June term, Í807, Use court derided, that a writ oí error or appeal did not abate by the death of either party, U the case wa s standing under rule argument before the death was suggested. This decision was made by the co.nt independent of the act of A'iíveníber 1800, cA. 90* s# 11.  