#### NEHEMIAH JONES AND OTHERS *against*ROBERT McKENZIE AND ALBERT PEACOCK.

In the case of a common injunction, where the answer is full and responsive to the bill, and the equity is not confessed, but denied the injunction must be dissolved.

This was an appeal from a decretal order of the Court of Equity of Robeson County.

The bill was filed by Nehemiah Jones, Arthur Jones and Isham P. Watters, to restrain, by injunction, the collection of a judgment, obtained, against them. It alleged that the said judgment was founded on a sealed note given by Nehemiah and Arthur Jones, as principals, and Watters as their surety ; that the said note was for $500, and was given in pursuance of a contract, which they made with the defendants in October, 1859, to the effect, that the said defendants were to deliver to plaintiffs, the Messrs. Jones, in as good condition as it was at the time of the contract, a turpentine distillery, on the 1st of the ensuing January, which they were to have and use for one year thereafter, to wit, for the year 1860, at the said price of $500; that previously to the 1st of January, 1860, and while the said distillery was yet in the possession of the defendants, it was burned and destroyed, with all its furniture and fixtures, as far as it could be burned, and that what could not be burned was rendered worthless and useless for the purposes contemplated in the contract, thus rendering *204it impossible to fulfill the contract of defendants, without rebuilding a distillery in said place, which was not done; neither was any attempt made to deliver the said distillery, and it could not be delivered, and was not; and that during the year 1860, the defendants had made attempts to sell the *remnants*of the said distillery. Bobert McKenzie, one of the defendants, answered, that he was, at the time of making the alleged contract, interested in the distillery, mentioned in the plintiffs’ bill, jointly with the other defendant, Albert Peacock, but that now he is the sole proprietor thereof, and solely interested in the debt sought to be enjoined. He states that he made the contract with the Messrs. Jones for himself and his copartner, and it is not true, as stated, that the distillery was to be delivered on the 1st day of January in as good condition as it was when the contract was made ; that no particular time was specified for the delivery of the premises ; that defendant finished using the distillery on 14th of December, 1859, and a few days before that, gave notice to the plaintiffs that he should cease to use the premises on that day; and that he wished them to take charge of the establishment, as he was about to leave the State on a temporary journey, and that there was no obstacle to their getting possession of it immediately; that it is true, that before the'1st of January, 1860, the distillery did take fire and a partial burning took place, and some injury was done to it and some of the fixtures were burned, but the defendant positively denies that it was rendered useless and worthless and incapable of delivery as charged in the bill; on the contrary, he avers that very little injury was done to the still, except to the cap, and that the fixtures around it, which were burned, could be replaced ■without much trouble or expense. He denies that he tried to sell the distillery, but says he refused to do so, because of his contract with the plaintiffs. He says, that for the benefit of the plaintiffs, he authorised an agent, soon after' the bum-ing aforesaid, to put the distillery and fixtures in as good condition as they were before the burning, at the cost and expense of the defendants, and he is advised and believes thai *205his said agent was not allowed to do so by the plaintiffs, and so he avers.

On the coming in of the answer, the defendants moved for a dissolution of the injunction, which was refused by his Honor, and an order was made to continue it to the hearing, from which the defendants appealed.

No counsel appeared for the plaintiffs in this Court.

*Zeitch,*for the defendants.

PeaesoN, C. J.

In October, 1859, the plaintiffs made a contract with the defendants to rent a turpentine distillery for one year, to commence on the 1st day of January, 1860, for which they agreed to pay $500, and to secure the payment thereof, executed a note, under seal, payable nine months thereafter. In December, 1859, a fire occurred, by which the distillery was damaged to some extent. The plaintiffs did not enter and take possession of the distillery, and it was not used during the year 1860. ■ The equity of the bill is put on the ground of a failure of consideration, for that “said distillery with all its furniture and fixtures was burned and destroyed as far as it could be burned, and that what could not be1 burned was rendered worthless and useless for the purposes contemplated in said contract, thus rendering it impossible to fulfill the contract of the defendants without rebuilding the distillery in said place, which was not done, neither was any attempt made to deliver said distillery, and it could not be delivered, and was not.”

The answer denies “ that the distillery was rendered useless and worthless and incapable of delivery, as charged in the bill, by reason of the fire which occurred,” and avers that “very little injury was done to the still, except to the cap of the still; that the fixtures around the still, which were burned, could be replaced without much trouble and expense,” and that the defendant, McKenzie, “authorised an agent soon after the burning aforesaid, to put the distillery and fixtures in as good a condition as they were before the burning, at *206bis cost, and he is advised and believes Ms said agent was not allowed to do so by said plaintiffs, and he so avers.”

So, the parties are at issue as to the matters of fact and in this stage of the proceeding, the Court has no means of deciding which gives the true version. It is the plaintiffs’ misfortune to have closed the contract by a note, under seal, and the defendants have the advantage, because they have obtained j udgmenfy and have the law on their side. Like the case of *Mims*v. *McLean,*at this term, (ante 200,) it is a *common injunction,*and as the answer is full and responsive to the bill, and the equity is not confessed, but is denied, the plaintiffs have no proof, and, consequently, have nothing to stand on in this stage of the cause, and the injunction ought to have been dissolved; *Capehart*v. *Mhoon,*Busb. Eq. 37.

There is error in the decretal order. This will be certified.

Pee CubiaM, Decretal order reversed.