#### Francis Pug*h v*. Maer, Murfree & Burges.

From Franklin.

An injunction granted upon the payment of the money recovered ai law, into the office of the Master, will not be dissolved, simply because obtained more tliaii four months after the rendition of the judgment at law. The object bf the act of 1800 on the subject of obtaining injunctions was to prevent delay and hazard to creditors, and this is accomplished by the terms imposed.

The Bill alleged that the Complainant, in the spring of 1819, contracted with the Defendant *Maer,*for the purchase of fish, without specifying the quantity, though *363Complainant was to take as ñnany ash-said *Maer*would deliver at the following- prices, to-wit: §4 per barrel for trimmed herrings, *86 for shad, and the same price for rock ; that a few days afterwards, one *Mburr,*the of *Maer,*called on the Complainant, and presented an account, in which were charged 368 barrels of herrings, *77*barrels of shad, and *7*barrels of rock, which, at the 'prices aforesaid, amounted to gill76; that the Complainant did then give Ids bon'd for said sum, payable to the Defendant *Maer,*three months after the date thereof; that he did so at the request of said agent of *Maer,*when the Complainant did not know whether the fish had been delivered or not, for there were boats on the river in which possibly the fish might have been taken, and Complainant therefore took it for granted that all was right; that the said bond was given on 15th May, 1819, when in fact, the fish liad not been delivered, and that a few days after, upon the application of Complainant’s agent, he was unable-to obtain other or more fish than about *178*barrels of herrings, 20 barrels of shad, and 4 barrels of rock, which, according to the.prices agreed on as aforesaid, amounted to §856. The bill further alleged that said fish were shipped to Halifax, and consigned to Messrs. *J.*<$* *B. F. Halsey,*merchants, for sale; and upon examination of them by said gentlemen, it was found that at least *one-third*were spoiled and rotten ; that the Complainant had never seen the Defendant *Maer,*since he ascertained this *defect*in the fish, though at au early opportunity, ho informed him of the deficiency it* quantity. The bill then alleged further, "that *Maer*endorsed the bond to the Defendant *JVm. H. Murfree,*after it fell due, to-wit, on 1st October, 1819, and that said *Murfree*endorsed the same a few days afterwards, to-wit, 30th October, 1819, to the other Defendant *Thomas Bur-ges;*that *Burges*had sued the Complainant in the County Court of Franklin County, and obtained judgment; that from this judgment, the Complainant appealed to the Superior.Court of said Comity, at the Fall Term, 1820, *3640f said Court, alfid prayed for an Injunction against all of said judgment at law, except §5n 66, and prayed also for general relief.

Thefiatfor the Injunction was made 15th March, 1821.

At Spring Term, 1821, the Defendant *Burges,*answered, that lie was a purchaser and indorsee of said bond for valuable consideration, and asked the benefit of the provisions of the act of 1800, ch. 9, and therefore prayed that the Injunction might be dissolved ; at which time the Injunction was dissolved with costs, and the Bill continued over as an original, and an order made, that upon the payment of the whole judgment into the office of the Clerk and Master, the Defendant *Burges*should not receive the same, until he had given bond with security to answer the final decree in this suit.

The Defendant *Murfree*answered, that lie was a purchaser and indorsee without notice j that after he received the bond, he asked payment of Complainant by his agent, and said agent did not inform the Defendant that Complainant made any pretence at that time that the fish lie received wore unsound, though he did state that some of them had never been delivered. Defendant believed it was nothing more than an excuse, and therefore did not inform the Defendant *Burges*of it, to whom he assigned the bond for valuable consideration on 10th October, 1819, or thereabouts.

The Defendant *Maer*answered, and admitted that Complainant bought fish which he had at a fishery on Roanoke; that the prices stated by Complainant were those agreed on by them *;*that the Complainant attended on the day when the fish were to be delivered, and stated that he had no boat ready, and desired a postponement of the delivery till the next day, or some day fixed on by the- Complainant. Such postponement was had till then, when one *Samuel Hussy*attended for the Defendant and counted out 168 barrels of herrings, *77*barrels of shad, 42 barrels of rock, which amounted to 31176$ that said *Hussy*stated to Defendant, that he delivered said fish by *365request of the Complainant to the captain of the boat employed by the Complainant, which boat’d crew commenced taking the fish on board before *Hussy*left there; that he was not present, but believes the account of the fish as above rendered to him by *Hussy*was correct, and that the same was delivered to Complainant or his agents as charged.

Defendant answered further, that he knew nothing personally of the quality of the fish, but that he was informed by his agent, and believes that they were good | that the Complainant and he agreed that part of the barrels should be opened, and by that means the quality should be ascertained, and that his agent *Hussy*informed, him that he did so, and that the fish were sound, and that those not opened were well filled with pickle, which he ascertained from the sound in moving the barrels to count them.

Defendant further answered, that he sent the account aforesaid to *Win. R. Minor,*and asked him to take the bond of Complainant, which he did for SI 176, as aforesaid *;*that he assigned to the other Defendant *Murfree,*for valuable consideration, and he could give him no notice of Complainant’s equity, for he had not then heard of it — ‘and concludes with a prayer for costs, &c.

To these answers replication'was taken, and the cause set for hearing, and transmitted to this Court for a final hearing.

From the depositions it appeared clearly, that a day or two after the date of the bond mentioned in the bill, the Complainant had received 202 barrels of fish, and that a delivery was made of the whole quantity contracted for; but that the remaining 50 barrels were left by Complainant’s boat until the first of June, when Complainant, by letter, directed them to be sent to Cedar Landing, and that it was done.

•With respect to the fish being spoiled, there was evidence on both sides.

*366*-Badger*& *Maywood,*for the Defendants,'

contended, that the fact of the delivery of the fish being made clear by the proofs, the only remaining ground of complaint -n tj)e was t|ic ^a(j quality of the fish, which even if true, furnishes to this Court no.¡jground of jurisdiction, as the Complainant has adequate relief at law for the fraud ; and lliat more especially as respects the Defendants *Murfree*and Burges, who are indorsees without notice. They also argued on the facts, and contended, that though it was clearly shewn that Complainant had spoiled fish in tiie year 1819, there was no evidence to shew they were the same which *Maer*delivered to him. On the contrary, the depositions taken by Maer, shewed tiiat the fish which he delivered to Complainant were sound and well put up.

Tayeoe, C. J. —

The Complainant comes into this Court, seeking a reduction of the judgment at law, upon the twofold ground, that the quantity of fish he contracted for was not delivered ; and that, of the quantity delivered, a considerable part was so damaged as to be unfit for use, and totally unsaleable.

That the number of barrels stipulated for was delivered to the Complainant, seems to be placed beyond all doubt by the depositions of *Hussy*& Miner, the agents of the Defendants j and if after the former had counted them out, and gave the Complainant a control over them, and after *Miner*had, at the Complainant’s request, conveyed the sixty-nine barrels to Cedar Landing, the Complainant declined receiving them, he alone must be responsible for the loss; for the Defendant could do nothing more to make the delivery complete.

The question as to the unsoundness of the fish, is involved in some difficulty as to the facts. There can be little doubt, that many of the barrels received by *Halsey,*to sell on account of *Pugh,*were unmerchantable, and that of these, some were marked with black *paint; but*whether these were the identical barrels which were re-*367ceivetl from *Maer,*does not appear, though those also were marked with black paint. But *Pugh*miglit have bought, and *Halsey*might hare received, other barrels with a similar mark *;*or other barrels miglit have been put on board the boat in her passage up the river. I-admit, that the probability is strong, that the fish ‘ which were spoiled, had been purchased by *Pugh*from *Maer,*but better evidence of the fact might have been adduced.

But then the question occurs, were the fish unsound when delivered to *Pugh’s*agent *;*or did they become unsound afterwards, from causes which were in activity at the time of the delivery ? For the same consequence will follow in both cases j or did. both cause and effect begin their existence after their sale ? *Halsey*says, that he opened several of the barrels in presence of the skipper, who was well satisfied with their soundness 5 and that he knew by the sound of the pickle in others, that they were properly filled. *Minor*sent some of the same fish to Richmond, and retailed others in the neighbour-hood, and heard no complaint, respecting either*. The leakage of the cask, and the escape of the pickle, is well known *to*be the most frequent cause *of such fish*becoming spoiled, and this may have happened in the shipping and stowing.

On the other hand, it is stated by the clerk of Halseys that many of the barrels were without pickle, and that he was under the necessity of filling them up, so that from the evidence now before the Court, I should be wholly at a loss to determine, whether the fish were unsound when delivered, or in the way-of becoming so j or whether they became unsound afterwards. The only thing certain is, that *Pugh*sustained a loss from their unsoundness. But supposing that there was evidence of the unsoundness of the fish when sold, yet there is none of a warranty, or of a knowledge in the vendor that they were so, nor any allegation in the Bill to that effect.-— This Court cannot, any more than a Court of Law, allow for the deficiency in the value of an article sold, in a case where the maxim of *caveat emptor*applies.

*368Upon the motion to dismiss, on the ground of the Injunction being issued more than five months after the judgment, though an opinion on that point is not esseu-tiiil to the decision of the cause, as I think the Bill ought to be dismissed for the reasons I have given, yet, as a case of practice, it may be usefully settled.

The act of 1800 was passed for the avowed object of preventing delay, and debtors from thus defeating the claims of their creditors. Now this is effectually obviated, by granting an Injunction upon the terms of paying the money into the office — for thus all risk of the debtor’s insolvency, or that of his securities, is avoided— and the money is held to be paid according to the decree, without a moment’s delay. To dismiss the Bill therefore, on this objection, where an Injunction is granted under the same terms with this, would be to sacrifice the manifest spirit of the act to its literal construction. I cannot therefore believe, there is any weight in this objection.

By the Court,

Bill DISMISSED,