B B. Craycroff & Co. v. Morehead

Pearson, C. J. The case is betoie us to review the decisión of the Judge below, upon a motion to dissolve an injunction, which was heard upon the complaint, answer and depositions (used as affidavits) and the argument of counsel. We eoncur with his Honor, both in respect to his conclusions as to the facts and his conclusions upon the questions of law. Upon a motion to dissolve an injunction when a fund has been taken into the custody of the law, the settled rule is, that as the court has hold of the fund, it will not let it go, if the plaintiff, shows probable cause, from which it may be reasonably inferred that he will be able to make out his case on the final hearing. As to the question of law, it was conceded on the argument, that the law of the domicile applies to the case, and that according to the law of the domicile of these parties, the estate of the wife is secured to her, and the husband does not acquire it jure mariti. So that is disposed of. As to the allegation of fraud, stripped of extraneous matter, the case is this: A lady, who is engaged to be married, is applied to by her intended husband, a man extensively engaged in business, for the loan of $8,000. She has not the cash in hand, but holds a bond secured by mortgage, by the transfer of which the amount can be raised. She yields to his persuasions, and' assurances that, with $8000, he will be able to meet the emergency and put all right. Accordingly, she consents to let him raise the money by a transfer of the bond and mortgage, in lieu of which he executes to hei judgment notes for the amount, which is to bo secured by the property which he had in Newbern, and this lien is made effectual before the plaintiff acquires a lien. Are *425 these judgment notes to be deemed void and her lien invalid on the ground of fraud ? That she has a true debt is fully proved, and we concur with his Honor that the evidence does not convict her of fraud and complicity, with an intent to enable the debtor to defraud his creditors. The depositions being all in, and the order of publication being then a matter of course, so that the cause might have been set down for final hearing, the defendant, if well advised, would have taken that course; but, under the disadvantage of hearing the matter on a motion to dissolve, the evidence does not make out probable cause, from which it may reasonably be interred that the plaintiff will be able to make out his case, on the final hearing. There is ho error'. I’er Curiam. Judgment affirmed.