#### PATRICK PETERSON *against*JAMES T. MATTHIS *and another.*

An injunction to prevent the setting up of a fraudulent deed, embracing the whole estate of an old man past the age of active labor, is a special one, and the bill of the plaintiff may be read as an affidavit in reply to the defendant’s answer.

The mischief in such a case is irreparable, and the injunction will be continued to the hearing.

Appeal from tbe Court of Equity of Sampson county, DiCK, J., presiding.

The bill was filed by the plaintiff, an old man aged about seventy years, alleging that the defendant Matthis had obtained from him, by fraud and circumvention, deeds for all his land, being'two tracts, worth ten or twelve thousand dollars, and for sixteen slaves, worth —-- dollars; that the said deeds purport to be for natural love and affection, and, as to one, for the further consideration of five dollars, and as to the other, for one dollar ; that the defendant Matthis is in no manner related to the plaintiff, by blood or marriage, and that there was no valuable consideration ever paid to him for this property, or agreed to be paid ; that the deeds in question, if they are not entire forgeries, were executed at a time when the plaintiff was stupified with liquor and unconscious of the transaction, and that he had been seduced into that condition by the acts of the defendant Matthis gnd his cooperators, Register and Merritt, who witnessed the deeds; that the plaintiff is, beside being old, as above stated, entirely illiterate and much addicted to, the excessive use of ardent spirits, and that if he signed the papers now put in use, it was done when he was entirely drunk and insensate, away from his immediate friends, neighbors and relations, of whom he had several living near him, and by a conspiracy between the defendant Matthis and his witnesses, the two latter of whom lived out of his neighborhood ; that when these deeds were brought forward to be proved, which was out of term time, Matthis, in the presence of the witness Register, requested the clerk to keep the probate a secret.

*32lie further alleges, that, after finding out that the said Mat-this was setting up deeds of the description stated, the plaintiff demanded that the same should be surrendered to him for cancellation, and that. he should disclaim an interest under them, which he refused to do.

The prayer of the bill is, that the said deeds be surrendered to be cancelled, and that the defendant Matthis be restrained, by an injunction, from commencing or prosecuting any proceeding at law to get possession of any of the property embraced in the deeds.

An injunction issued accordingly. The defendants answered, and on the coming in of the answers, moved that the injunction should be dissolved.

Ilis Honor refused to dissolve the- injunction, but ordered-it to he continued till the hearing of the cause, from which order the defendants, by leave of the Court,, appealed..

*Shepherd,*for plaintiff.

Strange, for defendants.

Battle, J.

This- cause comes before- us upon- the- appeal of the defendants, from an interlocutory order of the Court below, which over-ruled a motion to dissolve the injunction, and continued it until the hearing. In the argument here, the injunction has been considered by the defendants’ counsel, as if it were an ordinary one, against a judgment at law. It is, in truth, a special one,r the dissolution of which, might work irreparable mischief to the plaintiff for what greater injury, in a worldly point of view, could be done to an old man, long past the age of active labor, than to take from him all his land and slaves, worth fifteen or twenty thousand dollars? In the cases of *Capehart*v. Mhoon, Busb. Eq. 30, and *Lloyd*v. Heath, Ibid, 39, and the cases therein referred to, the principles of the two species of injunctions, are fully discussed and settled. In an injunction, like the present, the bill may be read as an affidavit, in opposition to the answer, and the *33Court will not dissolve tbe injunction, when the rights of the parties are contested, until an opportunity is given to the plaintiff to establish his case by proof.

This view of the case makes it unnecessary to consider whether the answers of the defendants are full, fair, and directly responsive to all the material allegations of the bill.

Our opinion, then, is, that the interlocutory order made in the Court below was right, and must be affirmed with costs.

Pee OueiaM. Decree below affirmed.