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Sec. 322 (5), page 277. Before Justice of the Peace.-Where it is not alleged and shown that the value of the property sought to be recovered in an action of claim and delivery is worth "not more than fifty dollars," the Superior Court alone has jurisdiction, as it would have had it concurrently with a Justice of the Peace if of less value than fifty dollars. Kiger v. Harmon, 113 N. C., 406. See321 and cases cited.

Sec. 325, page 279. Exception too late. The objection that what purports to be the undertaking of the plaintiff in such action was not properly executed, comes too late when made at the trial term. Spencer v. Bell, 109 N. C., 39.

Sec. 326, page 280. Judgment.—In claim and delivery, when, for any cause, judgment cannot be given for the recovery of the property in specie, as where, pendente lite, the property was sold under order of Court, judgment should be rendered for the recovery of the value of the property at the time of the tortious taking, with interest thereon, in lien of damages for deterioration and detention, and for the costs. Hall v. Tillman, 110 N. C., 220.

Where, in claim and delivery, the property is placed beyond the control of the Court by a sale under an order granted contrary to the course and practice of the Court, reported and confirmed without objection, and the proceeds paid to the plaintiff and credited upon the irregular judgment, the defendant will be allowed credit upon the purchase money for the proceeds of the sale as of the date of the sale. Hall v. Tillman, 115 N. C., 500.

Page 280. Liability of sureties.-Where, in claim and delivery, the defendant became possessed of the property under a contract of sale (the property having been sold under an order of Court, pendente_lite), judgment should be rendered against the sureties to the defendant's undertaking for the penalty of the bond, to be discharged upon the payment of the contract price, with interest and costs, less the payments by the defendant. Hall v. Tillman, 110 N. C., 220.

On a recovery in claim and delivery, summary judgment will be rendered against the sureties on the defendant's replevy bond for the penalty of the bond, to be discharged upon the payment of the judgment against the defendant, when the bond was given prior to the act of 1885, chapter 50, and conditioned that the plaintiff shall be paid such sum as for any reason may be rendered against the defendant." In such case evidence as to the value of the property at the commencement of the action, or the date of sale, was irrelevant and immaterial, and issues presenting such questions were properly refused. (CLARK, J., dissenting.) Hall v. Tillman, 115 N. C., 500.

-Page 280. Sureties liable for costs.-The sureties on a defendant's undertaking in claim and delivery are liable for the costs of the action upon the plaintiff's recovery, notwithstanding the amendment by laws of 1885, chapter 50, to this section. Hall v. Tillman, 110 N. C., 220.

Sec. 327, page 281. Sheriff liable as surety.-In delivering property to a defendant, when seized in claim and delivery proceedings without taking a proper undertaking and requiring the same to be justified, a sheriff becomes liable as a surety thereon. Wells v. Bourne, 113 N. C., 82.

In such case the measure of the sheriff's liability is the delivery of the property to the plaintiff (if such delivery be adjudged), with damages for its deterioration, or (failing delivery) the value of the property; and to subject the sheriff as surety, it is necessary to show that execution has been returned unsatisfied. Wells v. Bourne, 113 N. C., 82.

Sec. 329, page 281. Injury to building.-A plaintiff who is adjudged to be the owner of machinery is not liable to the defendant for injuries to a shelter covering it, done in removing it under an order in claim and delivery proceedings, unless wantonly done. Hall v. Tillman, IIO N. C., 220.

Sec. 334, page 284. Writ of prohibition.This writ, which somewhat resembles injunction, existed at common law and is authorized by Article IV, section 8 Constitution. It can only be issued from the Supreme Court. State v. Whitaker, 114 N. C., 818; Perry v. Shepherd, 78 N. C., 83.

NOTE.-Injunction against taxes, see cases cited on page 294.

Page 287. Not granted if another remedy available.-Where, according to his own showing, the plaintiff had an adequate remedy at law, he is not entitled to an injunction. McNamee v. Alexander, 109 N. C., 242.

Sec. 335, page 288. By what Judge. The jurisdiction to grant an injunction till the hearing is restricted to the resident Judge of the district, or the Judge assigned thereto, or holding by exchange the Courts of the district within which the county wherein the cause is pending is situated. Hamilton v. Icard, 112 N. C., 589.

If the Judge before whom the order is made returnable fails to hear it, any Judge resident in, or assigned to, or holding by exchange the Courts of some adjoining district, may hear it upon giving ten days' notice to the parties interested. Hamilton v. Icard, 112 N. Č., 589.

-Page 288. Outside of the district.-By the act of 1885, chapter 180, section 8, a Judge assigned to a district is the Judge thereof for six months, beginning either January or July first, and where a restraining order was made returnable before such Judge at a place outside of the district, and after the Courts were over, but before the end of the term of assignment to the district, such Judge had jurisdiction to hear the application and grant the injunction until the hearing. Hamilton v. Icard, 112 N. C., 589.

Page 288. By agreement.-By stipulation in writing, duly signed by the parties or by their attorneys, they may, under this section, designate any other Judge than those indicated by section 336 of The Code, to hear the application. Hamilton v. Icard, 112 N. C., 589.

Sec. 338 (1), page 290. Against floating logs.-Where it appeared that there was a serious issue as to whether or not the stream was "floatable;" that defendant had a large number of logs that would become worthless if not floated, and that an injunction would stop its mill, to the great detriment of many people, and so as to damage defendant $100 per day, it was proper to permit defendant to give bond sufficient to cover all damages that would probably be sustained by plaintiffs, and refuse to continue the injunction. Commissioners v. Lumber Company, 114 N. C., 506; Lumber Co. v. Wallace, 93 N. C., 22.

Page 293. [NOTE.-Cunningham v. Bell should have been cited as 83 N. C., 328.]

-Page 294. Against collection of taxes.-The prohibition in the general Machinery Act against granting injunctions, is applicable by its terms only to such as are levied by that particular act, and does not apply when the right to collect taxes in arrears has been revived by a statute for the benefit of a sheriff's sureties containing no restrictions applicable to a particular case arising thereunder. Moore v. Sugg, 112 N. C., 233.

An injunction will not lie to restrain the collection of an invalid or excessive tax. To obtain relief, one must pay the tax and pursue the remedy given by Section 84, ch. 137, Acts of 1887. Hall v. Fayetteville, 115 N. C., 281.

-Page 294. Against sale under execution.—Under Chapter 6, Acts of 1893, to determine adverse claims to land, the owner of land is entitled to an injunction, pending the action, to restrain a judgment creditor of his vendor from selling the land under a judgment asserted to be a lien upon it. Mortgage Co. v. Long, 113 N. C., 124.

An injunction will not be granted to restrain the sale of land under an execution against another. Bostic v. Young, 116 N. C.

-Page 296. Against official action.—Where a city, by authority of its charter, granted a street railway company the right to construct a branch road over a certain street, it cannot, by a subsequent ordinance, arbitrarily annul its license; and when, under such latter ordinance, it attempts, by force, to prevent the completion of the road then in process of construction, injunction will issue restraining the city from such interference. Railway v. Asheville, 109 N. C., 688.

—Page 296. Against a town ordinance.—An injunction will not be granted to prevent the enforcement of an alleged unlawful municipal ordinance; nor can an action be maintained which only seeks to have such ordinance adjudged void. Wardens v. Washington, 109 N. C., 21.

Sec. 338 (2), page 297. Insolvency.-While the fact of insolvency is not decisive of the right to injunctive relief, yet in some cases it becomes material. Railway Co. v. Mining Co., 112 N. C., 661.

-Page 297. Against construction of railroad.-The fact that one railroad occupies land which is claimed by another road as its right-ofway is not in itself an irreparable tort which will justify restraining the defendant from using the land until the question of title can be tried, especially when it is not alleged that the defendant is insolvent, and where it appears that there is room on the disputed territory for the construction of both roads. Railway Co. v. Mining Co., 112 N. C., 661.

An injunction will not issue to restrain a railroad company which has instituted condemnation proceedings from wrongfully entering before the appraisal of damages and the payment thereof into Court, when it has given ample bond to cover any damage resulting from such action on its part. Railroad Co. v. Lumber Co., 116 N. C.

-Page 298. Where injury is conjectural.-When the facts upon which an injunction was granted until the hearing and a receiver was appointed by the Judge below are controverted and doubtful, the Supreme Court will not interfere with the orders, especially when it appears that no serious injury to any of the parties can arise therefrom. Nimocks v. Shingle Co., 110 N. C., 230.

Page 298. Where evidence is conflicting.-Where there is a serious dispute in reference to a very material fact, an injunction is properly granted until the hearing. Moore v. Sugg, 112 N. C., 233.

A party seeking an interlocutory injunction is not required to establish his right with the same precision and certainty that is necessary on the final hearing; therefore, while on the trial of an issue as to the existence of a parol trust, the plaintiff must produce strong and convincing proof of an agreement amounting to a trust existing at the time, the rule does not apply to the intensity of proof to be offered in the prosecution of a remedy ancillary to the real object of the action. Faison v. Hardy, 114 N. C., 58.

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-Page 299. Against sale under mortgage.—-Where a mortgagor in possession has a full defence to an action for ejectment, when brought by a purchaser at a sale under a mortgage barred by the statute of limitations, the Court will not interfere by injunction to prevent a sale threatened by the mortgagee. It would be otherwise if there were a contest as to the amount due under the mortgage. Hutaff v. Adrian, 112 N. C., 259.

A mortgage given to secure an agreement connected with the traffic in public office being void, an injunction will lie to restrain a sale thereunder. Basket v. Moss, 115 N. C., 448.

Where an application is made for an injunction restraining the sale of land, and a well-defined issue is raised by the affidavits and counteraffidavits involving the equity for exoneration and cancellation, it was proper for the Judge before whom the motion was made to continue the injunction to the hearing. Davis v. Lassiter, 112 N. C., 128; Faison v.

Hardy, 114 N. C., 58.

-Page 300. Against sale by assignee.-Where there is a serious controversy as to the bona fides of an assignment and of the debts preferred, as well as of the fitness of the assignee, an injunction should be granted to prevent the selling of the property pending litigation. Preiss v. Cohen, 112 N. C., 278.

Page 300. In restraint of trade.-The mortgagor in a mortgage to secure the purchase money of a stock of goods is not the agent of the mortgagee in the sense of conducting a business forbidden by a contract between the mortgagee and plaintiffs, and cannot be enjoined from carrying it on. Reeves v. Sprague, 114 N. C., 647.

Sec. 340, page 301. Perpetual injunction.—A perpetual injunction can be granted only in the county where the cause is pending, and by the Judge who tries the cause at the final hearing. Hamilton v. Icard, 112 N. C., 589.

Sec. 341, page 302.

Amended by adding thereto the following: "Judgment dissolving the injunction shall carry with it judgment for such damages against the plaintiff and his sureties on said undertaking without the requirement of malice or want of probable cause in procuring the injunction." Acts 1893, ch. 251.

Page 302. Second undertaking not required. -Where an undertaking had been given before the issue of a restraining order, it was not necessary for the Court, on the return of the order, to show cause and, upon continuing the injunction to the trial, to require a new undertaking from the plaintiffs, unless it was shown that the bond already given was insufficient. Preiss v. Cohen, 112 N. C., 278.

Page 303. Damages on injunction bond.-It is immaterial that sureties were not proceeded against at same time with the principal. Crawford v. Pearson, 116 N. C.

In the action in which an injunction was issued, a motion to assess damages for wrongfully suing it out cannot be allowed before there is a final determination that the plaintiff was not entitled thereto. Crawford v. Pearson, 116 N. C.; Thompson v. McNair, 64 N. C., 448.

The Code does not contemplate that a separate action shall be brought for damages sustained by the wrongful suing out of an injunction. Crawford v. Pearson, 116 N. C.

In a proceeding against defendant for wrongfully suing out an injunction, it is necessary to allege and prove that the injunction was issued without probable cause. Crawford v. Pearson, 116 Ñ. C.

—Page 303. Filing undertaking mandatory.-The requirement that a plaintiff shall file an undertaking before an injunction can be granted is mandatory. James v. Withers, 114 N. C., 474.

Sec. 342, page 303. Writ of Prohibition.-Where a writ for a petition of Prohibition is entertained, the usual practice, unless prior notice of the petition has been given, is to issue a notice to the lower Court to show cause why the writ should not issue and to stay proceedings in the meantime. State v. Whitaker, 114 N. C., 819.

Sec. 344, page 305. Injunctions in favor of enterprise.—Injunctions which encourage enterprise and facilitate public convenience will be dissolved only in clear cases. Railway v. Asheville, 109 N. C., 688.

-Page 305. Injunction will not be dissolved, when.-Where the defendant's assignees positively denied the alleged fraud and their insolvency, and set out with particularity the facts in relation to their property, and the preferred assignee produced evidence tending to show that the money applied to his debt had been in good faith so appropriated before the commencement of this action, the Court properly refused to appoint a receiver or to direct the repayment of the money, but granted an injunction, pendente lite, and directed the other assignee to take charge of the assets. Flour Co. v. McIver, 109 N. C., 120.

Where notes for balance due on purchase money were secured by a deed of trust, and vendees sought an injunction upon the ground that there were various claimants for parts of the land and suits pending for one-sixth of it, to which the vendor replied that those matters had been passed upon by the vendees' attorney, and that the vendees bought with full knowledge of the pending suits and conflicting claims, the injunction was properly continued to the hearing. Atkinson v. Everett, 114 N. C., 670.

Where there is a serious controversy as to the ownership of a fund, it is proper to preserve it by an injunction till the hearing. Jones v. Jones, 115 N. C., 209. See 338 and cases cited.

Sec. 346, page 307. By what Judge granted.-A restraining order can be issued in any cause by any Judge of the Superior Court anywhere in the State, and made returnable at any time within twenty days, at any place, before a Judge residing in, or assigned to, or holding by exchange the Courts within the district in which the county where the cause is pending is situated. Hamilton v. Icard, 112 N. C., 589.

Sec. 347, page 308.

Amended by inserting before the word "personal" in subdivision three, the words "real or." Acts 1893, chap

ter 77.

-Page 308. For what causes.-Service of process by publication based on an attachment issued in an action for unliquidated damages is invalid, except in cases specified in this section, and amendatory act, chapter 77, acts 1893. Mullen v. Canal Company, 114 N. C., 8; Long v. Ins. Co., 114 N. C., 465.

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