#### SARAH WRIGHT *against*JAMES R. GRIST AND BENJAMIN GRIST.

Where every material allegation of a hill to stay waste is expressly and plainly denied in the answer, the injunction must "be dissolved.

The question of a defendant’s right to bring an action df *Trespass quai'e clausum fregit*against the plaintiff, is exclusively a legal one, and cannot be considered in discussing the propriety of dissolving an injunction.'

(The cases of *Capéhart*V. *Mhooitj*ante, p. 30, aiid *Lloyd*v. *Heath,*ante, p. 39, cited aud approved.)

In this case the complainant’s bill, which was filed to Spring Term, 1853, of the Court of Equity of Cumberland county, alleged that on the 10th day of December, 1849, she leased to the defendant James R. Grist, until the 1st of January, 1858, all thepines.suit* able for making turpentine, that might be found on certain tracts of land belonging to her, and lying in the counties of Cumberland and Robeson ;■ that she excepted from that lease the lands, within the limits specified as including hers, that might belong to *204other persons having older patents, and pines sufficient to make ten crops of turpentine, and also such pines as were suitable for ton timber *-,*that the defendant James was also to have the privilege of getting barrel timber enough to make barrels for such turpentine as he might make on the land ; and hoop poles exrough for such barrels that he was to paya certain rent for the pines and a certain sum per hundred for the hoop poles, but was to consume no other wood or timber except for firewood and other inci-dehtal purposes. The bill further alleged that the defendant executed his bond with security in the sum of ten thousand dollars , conditioned for the payment of the rent; that the defendant James has with a large force been cutting boxes and cultivating pines’ since the first of the year 1850, and has made partial payments .for the rent of the hundred thousand pines cut by him and his agent the defendant Benjamin, but has not paid all that is due ; that the defendants have violated the contract made on the 10th of December, 1849, and are, as the plaintiff is informed and believes, committing waste, if not in person, by those in their employment, by making tar of the lightwood to the amount of fifty or a hundred barrels, making barrel timber for saving turpentine upon the lands of other persons, and appropriating some of plaintiff’s land to their own use ; besides that the defendant Benjamin has sued her in ti-espass for entering upon her own land, and that both defendants are boxing the pines reserved by the lease to the plaintiff; that she has been prevented by the defendants from using the ton timber reserved in the lease, her slaves have been driven from the lands leased to the defendants, and the defendants are endeavoring to embarrass her rights to the land ; that, she has, after frequent attempts, failed to call the defendants to a settlement for arrears of rent and for the damage she has sustained by the waste they have committed, and that they refuse to dismiss the suit improperly brought against her. The bill then prays for an injunction against the waste and the action of trespass.

The defendants answered severally.

The defendant James R. Grist admitted the lease by the plaintiff, but alleges that of the seventeen thousand acres said to be included within the limits specified in that lease, so much is covered by patents older than that of the plaintiff that he has not *205been able to procure more than five hundred acres and thirty-nine thousand boxes of that assigned by the lease, and that by this breach of faith on the part of the complainant he has been seriously damaged. The answer denies that the defendant ever, either directly or indirectly, made any tar upon the premises leased, or that he used the lightwood ; it denies in the same manner the charge of having taken hoop poles or barrel timber for the saving of turpentine not made upon the lands leased, and avers that he has promptly paid to the plaintiff at the end of every year all the rent that was due, and that he owes her nothing. It further insists that, the defendant James is and always has been in good credit, and ampty able to make satisfaction to the plaintiff for any -wrong he may have done to her; and submits that the plaintiff’s claim,.as disclosed by the bill, is one properly cognizable in the Courts of law.

The defendant Benjamin makes the same admissions that are contained in the answer of James. He admits that he was the agent of James, and denies his using the lightwood and timber for barrels and poles for hoops as charged by the plaintiff. He also admits that he has instituted a suit of trespass, but alleges hat the land to which it has relation, although within the limits specified in the lease, is part of a tract patented previously to that of the plaintiff, and leased to him by the owner. He asserts that he has always been able- to satisfy the plaintiff for any damage she may have sustained from him, and claims that the plaintiff’s action should have been preferred in a Court of law.

After these answers bad. come in, a motion was made before his Honor Judge Dick to dissolve the injunction. The motion was disallowed, and the injunction was continued to the hearing.. From this order the defendants appealed to this Court.

*Strange,*for the plaintiff.

*I). Reid*and *Banks,*for the defendants.

Battle, J.

The distinction between the special injunction to stay waste, and the common injunction to enjoin a judgment at law, and the principles upon which our practice is governed in relation to both, are so fully discussed and explained in the cases of *206
      *Capeheart*v. *Mhoon,*ante 30, and *Lloyd*v. Heath, ante 39, decided at the last term, and in the cases therein referred to, that it would be useless to advert to them here. It is well settled, that on a motion to dissolve an injunction to stay waste, the bill may be read as an affidavit to contradict the answer, and if upon taking the whole together the question is left in doubt, the injunction will be continued until the hearing. Upon that practice this case must be decided ; and the result is, that the injunction must be dissolved. The answer plainly and expressly denies every material allegation of the bill, and that without any equivocation or evasion, while the bill does not state the facts upon which she founds her claim to releif as coming within her own knowledge, but only that she has been informed of, and believes them. How, and from whom, she got her information does not appear. It may have been a mere rumour. Upon which then, is most reliance to be placed ; such a statement, or the apparently frank and full denial of the defendants in reference to the facts within their own knowledge? We think, a jury empannelled to try such an issue, could not hesitate to find the facts in favor of the defendants, and we, as the triers upon the motion to dissolve, must find the same way. The other ground upon which it is sought to continue the injunction, to wit, that the defendant, Benjamin, has brought an action of trespass against the plaintiff for entering upon her own land, is untenable. The lease granted to the defendant, James R. Grist, sets forth, that there were lands within its'general boundaries to which the plaintiff had no-title, and it is not stated, nor pretended, that she wished to acquire the title to them. We cannot therefore, see the force of the argument that the defendants Were constituted her trustees, and as such were not at liberty to buy such lands. If either of them has taken possession of land claimed by her, and brought an action at law against her, the 'question whether it is her land, is a legal question, and must be decided in a Court of law. This Court would not at the hearing undertake to adjudicate upon it, but would send it to a Court of law for tfiüL It would be idle therefore, for this Court now to enjoin-, vihat at the hearing it would direct to be done-. We see no grounds then, upon which the injunction here-tofpre granted can stand ; the motion to dissolve ought to have *207been allowed, which must be certified to the Court of Equity for Cumberland County. The plaintiff must pay the costs of this Court. '

Per Curiam. Ordered accordingly.