Smith Thompson

“ If the assent of Lynn is all that is necessary to enable the bank to avail itself of the trust fund, justice requires that this should be given, before the bank is entirely restrained from proceeding on its judgment at law. And it is no doubt within the legitimate powers of a Court of Chancery, under circumstances like the present, to require such assent, and modification of the settlement, before granting a perpetual injunction. ”

“ No fraud or concealment is charged on the complainant in the answer-the defendant must be presumed to be informed of the subject on which they were treating; they no where pretend, that they were ignorant of the contents of the deed to Mason; and it may be fairly presumed, that to secure nearly 29,000 dollars they would be willing to take a doubtful or even inadequate security for 1500 dollars. It does not appear that any creditors had accepted of the terms of the deed of trust to Mason, and if so, it was open to all, particularly by the very contract of 29th of May, to the bank. ”

“ But the rights of other creditors, which may have attached upon this fund must not be lost sight of; with respect to which however, we have not before us, the means of judging.
We are accordingly of opinion that the decree of the Court below granting a perpetual injunction be reversed. And that the cause be sent back with directions to the Court to continue the injunction, until the bank has a reasonable time to file a cross bill. And that the continuance of the injunction be subject to such further order of the Court, as equity and justice may require. ”