Howell v. Freeman ( 1829 )

Judge Robertson

delivered the opinion of the Court.

The evidence in this case did not authorize the perpetuation of the injunction. It is very doubtful whether the mare (to enjoin the price of which the hill was filed,) was unsound at the time of the sale; and if she were, it is .not proved, nor can it, be fairly inferred from the testimony, that the defendant, when he sold her, knew and fraudulently concealed the unsoundness. If the scienter and fraudulent suppression had been established, as there was an offer to return her, the injunction ought to have been made perpetual. But these charges not being sustained by the evidence, it is therefore ordered and. decreed, that the decree of the circuit court be reversed and the cause remanded, that a decree may. be entered dissolving the injunction, and dismissing, the bill with costs and damages.