#### HENRY S. LLOYD *against*R. R. HEATH AND OTHERS.

On a motion to dissolve ati injunction of a special nature, as to stay waste, and the like, where the injury would be irreparable, the bill will be read as an affidavit to contradict the answer.

(See *Capehart*v. *Mhoon,*and others, *ante,*decided at this term.)

(The cases of *McDaniel*v. Stoke>*, 5 Ire. Eq. 274; *Griffin*v. Carter, lb. 413; *Purnell*v. Daniel, 8 Ire. Eq. 9; *Reed*v. *Kinnamon,*lb. 18, cited and approved.)

This was an appeal from an interlocutory order of the Court of Equity of Martin county, at Fall Term, 1852, made in the cause by his Honor Judge Settle, dissolving the injunction which had been granted therein.

The plaintiff owns a large tract of land in *“*Quitsney poco-sin,” and valuable only for the timber. He alleges that the defendants have trespassed on his land, and have cut thereon a large quantity of valuable timber ; that he has instituted an action at law for the trespass, which is still pending; that the defendants have now on hand 200,000 shingles got off his land *;*that they are in doubtful circumstances, if not insolvent; and he therefore fears they will not be able to pay the damages which he expects to recover in his action at law. The prayer is, that the defendants be restrained from further trespassing, and be also restrained from selling the shingles, until the question of title to the land where, the shingles were got, is decided.

The defendants say they have a right to get shingles on the Taylor grant, which adjoins the plaintiff’s land; but that the part of the Taylor grant where they have been getting shingles, is *40at least one half mile from plaintiff’s land. They.say further, they have a license to get timber on the lands of one Bond, which also adjoins the plaintiff’s land ; but they are certain they have not crossed the line, because they have had tire lines run by one Phelps, a competent surveyor; and *“*the plaintiff, being informed that the lines were to be run, said that he would be satisfied with the running, and would be willing to acquiesce in the result thereof.” They do not, however, aver that the plaintiff had notice of the time when the lines were to be run, or that he took any part in making the survey. They thereupon aver broadly, that *they have not cut a tree, or got any timber on the plaintiff’s land.*In regard to the allegation of insolvency, they simply say, *“*they are perfectly able to pay any damages which it is possible for the plaintiff to recover in his suit at law.”

*Moore,*with whom was *Biggs,*for the plaintiff.

1. The plaintiff sets forth his title clearly by metes and bounds, and charges the waste to be within his bounds, and that he has brought suit at law to establish his boundaiy. The defendants do not deny that the alleged trespass is within those bounds, but contend that, according to an *ex parte*survey, made by their surveyor, it is without the true boundary of the plaintiff. The defendants, at most, make it a case of *disputed*boundaiy. In such case, the injunction is always continued to the healing. *{Irwin*v. *Davidson,*3 Ire. Eq., *311*— Purnell v. *Daniel,*8 Ire. Eq., 9.

2. The answer is evasive. It does not allege ability to pay the *value*of the timber cut; but it first denies the title of the plaintiff —denies, next, his right to recover *any*damages at law; and then avers ability to pay *all*damages which the plaintiff will be able to recover at law. This is no answer on *the point. {Miller*v. *Washburn,*3 Ire. Eq., 161.)

Pearson, J.,

after stating the case as above set forth, proceeded : — His Honor dissolved the injunction, we suppose, on the ground that the ..plaintiff’s *“*equity was denied” by the averment that the *“ defendants had not cut a tree, or got any timber on the plaintiff’s*landand that, in regard to the allegation of insolvency, the answer was full, because, if the plaintiff had sus* *41tained no damage, it was a matter of indifference whether the defendant were solvent of insolvent.

His Honor fell into error by not adverting to the distinction, which we have attempted to point out in *Capehart*v. *Mhoon,*decided at this term, between injunctions to stay the collection of money on a judgment recovered at law, and injunctions to stay waste, or injuries in the nature of waste, where the damages are irreparable. In the one, the injunction is dissolved, as a matter of course, upon the coming in of the answer, unless the equity is confessed; or, according to our practice, unless the answer is defective in not responding to a material allegation, or is unfair or evasive, so that exceptions to it would be sustained. In the other, a different rule is acted on, and inasmuch as to dissolve the injunction would be to allow the injury to be done, (and in the forcible words of one of the Chancellors, *ce*a tree that is cut down, cannot be made to grow again, ’ ’) where the plaintiff fails to elicit from the defendant a discovery, which admits the allegations of the bill, the bill is allowed to be read as an affidavit on the part of the plaintiff. And if, upon the whole case, the matter is left doubtful, the injunction will be continued until the hearing, so as to give the plaintiff a chance to support his allegation by proof, before a thing, the consequence of which is irreparable, is allowed to be done.

*“*For the purpose of opposing a motion to dissolve the common injunction, affidavits are never allowed to be read to contradict the answer. A distinction was however adopted at a very early period, in regard to injunctions restraining certain wrongful acts of a special nature, as distinguished from the common injunction for staying proceedings at law. ” *“*And it may be stated to be, at the present day, the settled practice to permit affidavits to be read in opposition to the answer, at certain stages of the proceedings, in cases of *waste, and of injuries in the nature of waste*; for the mischief is irreparable ; the timber, if cut, cannot be set up again :— in other words, the mischief, if permitted, cannot be retrieved.” Drewry on Injunctions, 429. In accordance with this principle, which is a very plain and just one, it wasv held in *McDaniel*v. *Stoker,*5 Ire. Eq., 274, and *Griffin*v. *Carter, Ibid,*413, that upon a motion to dissolve an order restraining the defendant from *42running slaves out of this State, the bill might be read as an affidavit ; and as it appeared, *“*taking the whole together,” that the question was doubtful, inasmuch as the slaves were within the control of the Court, they should be kept so, until the matter was decided at the hearing. For, if the injunction was dissolved, the slaves would be carried to parts unknown, and the injury to the plaintiff, if he succeeded at the hearing, would then be irreparable. So, in *Purnell*v. *Daniel,*8 Ire. Eq., 19, a motion to dissolve an injunction restraining the defendant from cutting a ditch, was refused, although the defendant denied the plaintiff’s whole equity, and the plaintiff had no proof whatever; but the Court allowed the bill to be read as an affidavit, and it appearing that it was a case of disputed boundary, the motion was. refused — so as to give the plaintiff a chance to prove his allegations at the hearing. For if the defendant had been allowed to cut the ditch, the damage would have been done, and the plaintiff’s proof at the hearing could not *undo it*— in other words, the mischief, if allowed to be done, could not be retrieved. In *Reed*v. *Kinnaman,*Ibid, 18, the principle of allowing the bill to be read as an affidavit, in opposition to the answer, was extended to the case of an injunction restraining the defendant from suing out a writ of possession, after a recovery in ejectment. The application of the rule to such a case was doubtful, because of the judgment at law; but the Court extended the rule so as to include that case, on account of its very peculiar circumstances. An old man who had been living at a place for more than forty years, was about to be turned out of *“*house and home ” — all of the associations of his life were to be broken up — and the motion to dissolve was pressed, simply on the ground that the answer did not admit an allegation which was not charged to be within the knowledge of the defendant. Under these circumstances, the Court considered that the damage would be irreparable — that if he was turned out of possession, and should at the hearing establish his right, he could not be put *in statu quo*; and upon that ground the bill was allowed to be read as an affidavit, in opposition to the answer, and the Court refused to allow him to be turned out of possession, until he had an opportunity of proving his allegations at the hearing.

*43As was said in *Purnell*v. *Daniel, "*Here then is a case of disputed boundary — how can we decide it without proof?” Are the defendants to be allowed to go on and cut timber before the dispute is decided, merely because they are of the opinion that the line of plaintiff has not been crossed ? Are they to be allowed to sell the shingles which, it may be, were taken off the plaintiff’s land, upon the averment that they have done the plaintiff no damage, and are therefore perfectly able to pay all he can recover in his action at law? Certainly not. The bill, taken as an affidavit of the plaintiff, shows that he believes that he has been trespassed upon; he has instituted an action at law to try the question; and as the shingles are now under the control of this Court, the fund will be protected until the dispute about the boundary is decided. As little as the defendants could have done, would have been to accompany their answer with an offer to give bond and surety for the value of tire shingles, if allowed to sell them, upon a suggestion that the shingles may be injured by the weather, if not disposed of; but no offer of the kind is made — the defendants content themselves with a general averment that they are able to pay all that the plaintiff can recover.

The injunction ought to have been continued until the hearing, and the order for its dissolution must be reversed. This opinion will be certified.

Per Curiam. Decree below reversed.