delivered the opinion of the court.
In this case the plaintiff obtained an injunction against an order of seizure and sale, which was about to issue against his property at the instance of the defendant. The petition for the injunction has reference to a suit pending between these parties in relation to part of the same contract on which the order of seizure is claimed in the present case, and reference is made to the answer in that suit, to ascertain some of the facts relied on to obtain the injunction in the present. The plaintiff also alleges a deficiency of more than one-twentieth in the quantity of land sold to him by the defendant; to recover the payment of the price of which the order of seizure was claimed.
The injunction which was granted, was afterwards dissolved, on motion; and from the decree of dissolution the plaintiff appealed.
For the purpose of deciding on a motion to dissolve an injunction, the facts alleged in the petition on which it is obtained, are taken as true, but afterwards may be controverted in an answer on the merits, if such motion does not prevail. We are of opinion that the facts alleged in the present case, ought to have been considered by the court below as sufficient to sustain the injunction until the cause could be heard and determined on its merits.
It is, therefore, ordered, adjudged, and decreed, that the judgement of the District Court be annulled, avoided, and reversed, and the cause sent back to be proceeded in according to law; the appellee to pay costs of the appeal.