#### MAURICE SMITH, et al. *v.*STEPHEN THOMAS, et uxor, et al.

*A*motion to dissolve an injunction may Re made notwithstanding exceptions have been filed to the answer; and the motion for the dissolution and the exceptions^will come on to be argued before the court together, when the court will not disregard the exceptions, but wiil look into them, and if found not to be frivolous, will give them due effect in repelling the defendant’s motion.

üpon a bill brought for an injunction and relief against a deed alleged to have been executed after marriage, but antedated, or if executed before marriage to have been done in fraud of marital rights, allegations that the husband at the time of the marriage had a good estate, and that children were born of the marriage, are not material to the main points of inquiry, and an omission to answer them will not prevent the dissolution of an injunction on a motion made for that purpose.

When a plaintiff alleges that he has never seen an original deed against which he seeks relief, and prays that the same may be produced for his inspection, the defendant is 'not bound to make the deed part of his answer, or annex it to it. The plaintiff must in such case, obtain an order from the court for the production of the deed, which order, if disobeyed, will put the defendant in contempt, and of consequence prevent him from making any motion in the cause.

On the 14th of August, 1822, the plaintiff, Smith, intermarried with Mrs. Hays, then a widow and the mother of the defendant, Mrs. Thomas, then her only child and an infant of about four years of age. Mrs. Hays was then in possession of a negro woman and two children, which she claimed under the will of her first husband ; and Smith, the second husband, upon his marriage, took them into his possession and kept them until he sold the woman to Yancy, about two years afterwards. Mrs. Smith afterwards died, and her daughter having intermarried with Thomas, they instituted an action of detinue against Yancy for the negro woman and her issue born subsequent to the sale to Yancy.

The bill was brought for an injunction and relief by Smith and Yancy, against Thomas and wife, and against Mrs. Wil-liáms and Mrs. Winstead, and stated that the plaintiffs at law claimed the slaves under a deed, purporting to be a deed of gift made to Mrs. Thomas by her mother on the 1st day of August, 1822, and to be attested by the other two defendants, who were the sisters of Mrs. Smith. The bill charged that the deed was written by Mrs. Williams, and contrived by her and Mrs. Winstead by conspiracy, to cheat *127Smith : that in fact it was either made after the marriage and antedated ; or that those two defendants induced his then intended wife, their sister, over whom they had great influence, to execute it secretly and in fraud of his marital rights.

The bill stated that Mrs. Williams had the custody of the deed and carefully concealed its existence, until after the sale to Yancy, when she proved its execution and procured its registration, and it charged and sought a discovery of many circumstances in detail in support of the general allegations first mentioned.

Among the statements of the bill were the following: First, that Smith at the time of his marriage, had a good estate ; and that two children were born of the marriage and were still living. Secondly, that Smith “ had never seen the original deed, but prayed that the same might be produced for inspection in this Court.”

The transactions which gave rise to the controversy all took place in Person and Caswell counties where the persons then resided. But the defendants had since removed to Georgia; and their answers were there taken separately under commissions. They set forth in detail all the circumstances of the writing, execution,- delivery and custody of the deed, and the motives for executing it, and stated explicitly that the whole was communicated to Smith and fully assented to by him before his marriage.

But the answers omitted to confess or deny the allegations respecting Smith’s estate and his children ; and were not accompanied by the production of the deed of gift, and contained no offer to produce it. For those exceptions the plaintiff filed exceptions to the answers.

Notwithstanding the exceptions,- a motion was made on the part of the defendants to dissolve the injunction ; and his Honor, thinking all the charges of fraud fully answered and denied, allowed the motion. From that the plaintiffs were permitted to appeal. '

*W.*A. Graham, for the plaintiffs.

*J T. Morehead,*for the defendants.

Ruffin, Chief Justice,

having stated the case as above, proceeded as follows : It is contended on the part of the *128plaintiffs, that unless the answers had been perfected in the points excepted to, or the exceptions had been overruled, Court could not entertain a motion to dissolve the injunction. If exceptions are well founded, they certainly answer the motion to dissolve. Butter se they ought not, we fhmk, to have that effect. If merely taking exceptions, though frivolous, would fetter the defendants so tightly, we => ’ ... f • , might expect them m every case on the circuit, and especiaily when the remote residence of the defendant put it out of P°wer to perfect the answer promptly. Exceptions must be deemed well founded if the defendant submit to them ; or, if upon a reference to the master, he report in favor 0f them, until that report be overruled by the Court. But if the defendant do not submit, nor the plaintiff move for ' . . . a reference or his own exceptions in time to get a report before the defendant has a right to move to dissolve, the defendant may make his motion notwithstanding the exceptions. From the constitution of our Courts, this is unavoidable, as the means of preventing the plaintiff from taking exceptions for the purpose of staving off the mo-tkm to dissolve. Of necessity this brings on the exceptions, and the motion for a dissolution of the injunction, to be argued before the Court together ; for the Court will not disregard exceptions, but will look into them, and if found not to be frivolous, will give them due effect in repelling the de-fondant’s motion. It would on the other hand, be But a pretext t0 strangle justice, to allow the existence simply of a frivolous exception to stand in the way of hearing the parties upon their respective substantial allegations,

lf excep-answer are well founded, they answer the TMdissoiu°r injunction But per *se*notyto°have that effect.

Exceptions to an answer must well found-defendant submit to if'upoñ a°r’ ten h'? fa vor*of a themreport rulecPby the Court, defendant do not sub-the plain-for a refer-own ex-h'S ceptiona in ainrepo°rtSet d efe rulan t has a right to dissolve tioninJtiieC" defendant may malte his motion standing the excep-¿ions.

We agree also with his Honor in thinking that there is nothing in the exceptions here taken, to prevent the decision that was made. Touching the circumstances of the husband, and the issue the marriage, the facts either way would be perfectly immaterial to the main points of inquiry, whether the deed was executed before or after the marriage, or whether, if before, it was in fraud of the marital rights,

As to the other matter, this is not the proper method of ..... , , , presenting the objection. The deed is not to be made part of the answer or annexed to it. No allegation in the bill caus for u or ought to call for it, as annexed to the answer, 7 ® *129If a proper material to the plaintiff be in the defendant’s possession, or if an inspection of a paper belonging to the dé-fendant’ be essential to the plaintiff’s case, there is an easy method, in a proper case, of compelling its production, by an order obtained for that purpose. If disobeyed, the defendant will be in contempt, and of consequence, could make no motion. But here the attempt is to tie up the defendants, because they have not voluntarily filed the deed, without even a motion for such an order.

As we think that, notwithstanding the omissions pointed out by the plaintiffs, the answers as they stand are directly, explicitly and fully responsive to all charges of the bill as to the fraud, or as to the circumstances of which a discovery is sought as evidence of the fraud, the decree must stand as pronounced by his Honor. Should the plaintiffs at law 'recover, the Court can protect the plaintiffs in this Court from danger of loss by the change of possession, by requiring security for the production of the slaves to answer the decree in this cause, if a reasonable ground for such an order can then be laid.

The plaintiffs must pay the costs in this Court, and this opinion be certified by the clerk to the Court of Equity for Caswell.

Per Curiam. Direct accordingly.