From this decree Patton obtained this appeal.

er than the assets would pay, the said Leftwich and Stiff, as said surviving partners, on the 6th of February, 1886, made an assignment to P. L. Saunders, trustee, of all the partnership assets of the late firm of R. F. Robertson & Co., in trust to pay-First, two negotiable notes of the said firm held by the Liberty Savings Bank, one for $2,500, payable to and indorsed by McGhee & Hurt, dated, and the other for $2,000, payable to and indorsed by McGhee, Hurt & Co., dated -; second, to pay two other negotiable notes of said firm, held by the said Liberty Savings Bank, one for $2,000, payable to and indorsed by Wesley Peters, dated and the other for $1,000, payable to and indorsed by Jeter & Newsom, dated -; third, to pay all other indebtedness due the said Liberty Savings Bank by the said late firm; and, lastly, to distribute the surplus, if any. On the 9th of December, 1887, James D. Patton, a creditor of the late firm, instituted this suit, a creditor's suit, in the circuit court of Bedford county, against the said Leftwich and the said Stiff, surviving partners, Saunders, trustee, the Liberty Savings Bank, and the administrator of R. F. Robertson, deceased. With his said bill, J. D. Patton filed a copy of the said assignment and schedule, and exhibits the evidences of the indebtedness of the insolvent firm to him. He does not waive answers on oath. The Liberty Savings Bank filed its answer by its president; the trustee, Saunders, filed his answer on oath; and Leftwich and Stiff filed their answer on oath. The complainant, Patton, charges in his bill that the said surviving partners, Leftwich and Stiff, had no rightful power or authority in law to make an assignment of the assets of an insolvent firm, which had been dissolved by the death of a partner, nor to give preference to the bank, or to any one or more of the creditors of the firm, over the other creditors of the firm of equal dignity. And the prayer of the bill is that the assignment of Leftwich and Stiff, of February 6, 1886, as surviving partners of the late firm of R. F. Robertson & Co., be annulled and set aside, and that accounts be ordered and taken of the partnership assets in the hands of the trustee and assignee, and of all other social assets, if any, not included in the said assignment; of the debts due by the said late partnership; of the notes discounted and held by the Liberty Savings Bank; and of the application made of the proceeds of said discounts, and of the individual property of R. F. Robertson, deceased, and of Leftwich and of Stiff. On the 9th of December, 1887, the circuit court of Bedford county, by its final decree, simply dismissed the bill, with costs to the defendants.

The bill charges fraud, and collusion of fraud; but the answers are fully and explicitly responsive, and they deny the allegations and specifications of fraud made in the bill, and there is no proof whatever, or even an attempt to prove the fraud charged. Indeed, the petition for appeal, and the briefs of counsel for appellant, do not present the question of fraud. There is no dis

tion presented for adjudication, and the one on which the case turns, is purely and simply one of law, as to the powers and duties of surviving partners of an insolvent firm, dissolved by death; and the counsel for appellant, in their brief, state the question thus: Whether the surviving partners of an insolvent firm can make a valid assignment to a trustee of all the effects of the partnership, preferring one and postponing all others of the social creditors. The appellant contends that all the social creditors of same dignity must be paid ratably; that by the death of the partner Robertson the surviving partners, Leftwich and Stiff, became, by operation of law, trustees of the partnership property, which, as such trustees, they were bound to apply ratably to the payment of the partnership debts, and that they had no lawful power or capacity to discriminate among the social creditors, so as to give preference, either in payment or security by assignment; and that in this case, the assets being insufficient to pay or secure all, and the partners being insolvent, it was a breach of trust in the surviving partners, Leftwich and Stiff, to make the assignment of February 6, 1886, which in equity is void as to the social creditors who are postponed by the said assignment.

The question submitted is one of very great importance, affecting large interests and rights in the commercial world; and yet it has never, it is believed, been presented before this court in this definite form. But the supreme court of the United States has adjudicated the precise question and the exact point at issue here. Fitzpatrick v. Flannagan, 106 U. S. 654, 655, 1 Sup. Ct. Rep. 369; Emerson v. Senter, 118 U. S. 3, 6 Sup. Ct. Rep. 981. In this last. mentioned case the supreme court of the United States says: 'As, with the concurrence of all the partners, the joint property could have been sold or assigned for the benefit of preferred creditors of the firm, the surviving partner, there being no statute forbidding it, could make the same disposition of it. The right to do so grows out of his duty, from his relations to the property, to administer the affairs of the firm so as to close up its business without unreasonable delay; and his authority to make such a preference, the local law not forbidding it, cannot, upon principle, be less than that which an individual debtor has in the case of his own creditors." And the language of the syllabus of the case is: "A sole surviving partner of an insolvent firm, who is himself insolvent, may make a general assignment of all the firm's assets for the benefit of all joint creditors, with preferences to some of them; and such assignment is not invalidated by the fact

that the assignor fraudulently withheld from the schedules certain partnership property for their own benefit, without the knowledge of the assignee or of the beneficiaries of the trust." See Egberts v. Wood, 3 Paige, 517, re-reported in 24 Amer. Dec. 236, and note; Hutchinson v. Smith,7 Paige, 26; Wilson v. Soper, 13 B. Mon. 411, re-reported 56 Amer. Dec., 573, and note; Loeschigk v. Hatfield, 51 N. Y. 660; Cushman v. Addison, 52 N. Y. 628; Williams v. Whedon, 109 N. Y. 333, 16 N. E. Rep. 365, (decided in 1888;) French v. Lovejoy, 12 N. H. 458; Shields v. Fuller, 65 Amer. Dec., note, 295-303; Barry v. Briggs, 22 Mich. 201. In the very recent case of Williams v. Whedon, supra, the New York court of appeals reviews many prior cases, and refers to Emerson v. Senter as conclusive. In the case of French v. Lovejoy, supra, the court of appeals of New Hampshire says, (page 461:) "The property of the partnership might be lawfully appropriated to the payment of the partnership debts; and F. Lovejoy, as surviving partner, had the right to prefer A. Lovejoy, a creditor of the firm, in that manner. In Barry v. Briggs, supra, Chief Justice CAMPBELL, speaking for the Michigan court, says: A sole surviving partner has the entire legal title to all the partnership assets. He has a right, acting honestly, and with reasonable discretion and diligence, to dispose of them as he pleases; to settle all debts against the concern; to make any compromise he may deem necessary; and to turn the assets into an available and distributable form. 2 Bates, Partn. § 732, says: "As the surviving partner has the entire title and sole control of the property, and represents the power of all the former partners, and as they all could have assigned the property for the benefit of creditors, so the surviving partner has, at least in case of insolvency, in order to wind up, the same power, and can transfer the property to an assignee for the benefit, not of his separate creditors, but of the partnership creditors. And as he [the surviving partner] can pay some creditors in full, to the prejudice of others, so it has been held that, if the local law does not forbid, in case of other assignments for creditors, he can assign with preferences." And for this last proposition the author cites, among others, the case of Emerson v. Senter. The cases of Fitzpatrick v. Flannagan, 106 U. S. 648, 1 Sup. Ct. Rep. 369, and Case v. Beauregard, 99 U. S. 119, are cited in the recent case decided by this court of Robinson v. Allen, 8 S. E. Rep. 835. See the case of Beste v. Burger, 17 Ñ. E. Rep. 734. Even real estate bought with partnership funds, the title of which is taken in the name of the deceased partner, is so completely in the control of the surviving partner that where he assigned to a trustee, and the trustee sold, the purchaser of this equitable title can in equity compel the heirs of the deceased partner to convey the legal title to him. Shanks v. Klein, 104 U. S. 18. The cases referred to in the brief of counsel for appellant, Salsbury v. Ellison, 7 Colo. 167, 303, 2 Pac. Rep. 906, and 3 Pac. Rep. 485, and Anderson v. Norton, 15 Lea, 14, are rested on the ground that the surviving partner is a trustee for the benefit of the firm creditors, and is governed by the rules

applying to ordinary trustees, and that as, in the case of ordinary trustees, "equality is equity," the surviving partners, being trustees, cannot give any preference among the creditors. But surviving partners are not trustees, in the ordinary sense, though they are loosely so called by some judges and law-writers. Lord Chancellor WESTBURY, in Knox v. Gye, L. R. 5 H. L. 656 and 675, cited in 2 Pom. Eq. Jur. p. 618, note 2, says that the trust of a surviving partner is limited by the extent of his obligation, and that it is most important to mark this again and again, for there is not a more fruitful source of error in law than the inaccuracy of language. The application to a man who is, improperly and by metaphor only, called a "trustee," of all the consequences which would follow if he were a trustee by express declaration,-in other words, a complete trustee, holding the property exclusively for the benefit of the cestui que trust,-well illustrates the remark of Lord MACCLESFIELD, that “nothing in law is so apt to mislead as metaphor. But, conceding that a surviving partner is a trustee in a general sense, what is the extent of his trust? Certainly, not beyond his obligation-First, to collect all the assets of the firm; second, to apply them to the firm debts; third, to distribute the surplus, if any, among the surviving partners and the representatives of those who are dead. This is the full extent and duty of his trust, such as it is. In paying the debts of the firm there is no limitation or restriction on his power to pay one social creditor, or to secure one, in preference to another, if he act honestly. In this regard he has the same right and power that any other debtor has. The representative of the deceased partner is not injured by a preference given to one firm creditor over another; and it is quite immaterial to him, the assets of the firm being insufficient to pay all the social creditors, whether they be applied ratably to all the debts, or be applied to some to the exclusion of the others. The burden upon the estate of the decedent is precisely the same in either event. The creditor has no other equity than the partners have inter se; and the whole extent of a partner's equity is that the partnership assets shall be applied to the payment of the partnership debts, to the exclusion of the separate debts of the several partners; but this right or equity does not extend or operate to the prevention of giving preference among partnership creditors. The case of Offutt v. Scott, 47 Ala. 104, cited in the petition for appeal, is not in conflict with this principle; nor is the Virginia case of Lindsey v. Corkery, 29 Grat. 650. In that case each of the partners had gone into bankruptcy, and it was, among other things, held that, by the bankruptcy-the going into bankruptcyof the several partners, the social assets stood appropriated to all the social creditors alike, and the rule of administration of the assets thus appropriated was the same, whether the bankrupt assets were administered in the bankrupt court or in a court of equity. The lien or equitable right existing among the partners, by, through, and under which the social creditors may only claim, extends no further

than to require the social assets to be applied to the social debts, and, until they are paid, that the individual debts of the partners shall be excluded from participation in the social fund; but it does not prohibit preferences from being given in the payment, or securing the payment, of partnership debts out of partnership property. In the absence of a statute to the contrary, -and there is none such in Virginia,-every debtor has the right to prefer one of his creditors to another; and the case of a surviving partner, who is a debtor as such, is no exception to the general rule.

on East Back street, except the alley in their immediate front, mentioned in the case agreed: "The plaintiffs claim title through the conveyances, or copies of same, hereto attached, marked 'A' and 'B,' respectively, and asked to be taken as a part of this case. The defendant C. J. Carson is the only heir at law of J. M. Carson, deceased, and D. P. Carson is the widow of J. M. Carson; and they claim title through the deeds, or copies of same, hereto attached, marked '1,' '2,' '3,' '4,' respectively, and asked to be taken as a part of this case. A copy of the old town plat or survey, marked X,' is hereto attached, and asked to be taken as a part of the case. It is also agreed that plaintiffs may introduce any acts of legislature. It is admitted that the town was located and

RICHARDSON, J., dissents.

MOOSE et al. v. CARSON et al. (Supreme Court of North Carolina. Dec. 21, 1889.)

TAKING PROPERTY WITHOUT COMPENSATION-
EASEMENTS.

The owner of a lot having an easement appurtenant in the adjacent street, with reference to which he bought and improved the lot, cannot, without compensation, be deprived of his rights in such street by a sale for the benefit of the town through which he claims title; nor can the legislature deprive him of such appurtenant rights by authorizing the town to again enter upon and sell such street to others.

This was a civil action for the recovery of land, tried at the spring term, 1889, of the superior court of Alexander county, before CLARK, Judge.

The land on which the town of Taylorsville, the county-seat of Alexander, is situated, was conveyed to James Thompson, and his successors in office, on the 11th of June, 1847. On the 23d January, 1888, A. A. Hill, mayor of the town of Taylorsville, and W. R. Sloan, chairman of the board of county commissioners of Alexander, "in consideration of one hundred dollars to A. A. Hill paid by said parties of the second part, (the said Sloan joining in the conveyance, to convey any interest the county may have,)" convey to the plaintiffs. J. C. Moose, W. L. Moose, and J. F. Teague, a portion of said land, including all of East Back street lying between North Main street and North Back street, (both of which streets East Main crosses,) except an alley of 16 feet wide, next to defendants' lots. The defendants, and those under whom they claim, bought lots bordering and bounded by the portion of East Back street covered by deed of plaintiffs, and in controversy, in 1848, under the county authorities, and have occupied the lots since the year 1853. When the ancestor of defendants bought, East Back street had been laid off 56 feet wide. The plaintiffs claim in this action all of the original street covering the part of the defendants v.10s. E.no.19-44

in the year 1847, and the locus in quo was conveyed in deed, marked 'A,' and that many of the streets remain unused to this day. The land in controversy is that part of East Back street described in plaintiffs' deed, and embraced between North Main street and North Back street. The width of East Back street is admitted to be 66 feet, and that defendants are now in possession of all East Back street lying between North Main street and North Back street, except a small part inside of lot fences Nos. 35 and 36, not in controversy; but defendants claim no advantage by reason of possession of the street. At the time plaintiffs purchased, the town authorities left an alley of 16 feet adjoining defendants' lots 15 and 16, and running back from North Main to North Back street. All irregularities, if any, in the execution and proof of any of the deeds offered in evidence, are waived. It is also admitted that lots Nos. 15 and 16, abutting said East Back street, were purchased by the defendants, and those under whom they claim, after the town was laid off in to lots and streets, as indicated in the plat hereto attached, marked 'X,' and have been in possession of the defendants, and those under whom they claim, ever since the purchase in 1848, and the defendants' deeds cover the said lots. If, upon this state of facts, the court is of the opinion that plaintiffs are entitled to recover, then judgment for plaintiffs for possession and costs, without prejudice to the right of either party to appeal to supreme court." Upon the facts agreed, the court was of opinion that the plaintiffs were not entitled to recover, and gave judgment, accordingly, that defendants go without day, and recover costs. The plaintiffs except to the judgment, and appeal.

E. C. Smith, for appellants. R. Z. Linney, for appellees.

AVERY, J., (after stating the facts as above.) It is a well-settled principle that where a corporation, acting through its properly-constituted authorities, or an individual, sells and conveys a town or city lot, bounded by streets or alleys, marked out on a plat, and the grantee enters upon it, and expends money in improving it, he is entitled to a right of way over such street or alley, as appurtenant to the land; and any subsequent conveyance by his

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1889, are empowered to make a valid conveyance to any part of a street with reference to which, as a boundary, the defendants, or those under whom they claim, bought their lots in the year 1848, and improved them in 1853. Pratt v. Law, supra; Adams v. Railroad Co., 39 N. W. Rep.629; Brooks v. Riding, 46 Ind. 15. The said mayor or commissioners cannot diminish the width of such street from 66 feet, as laid off when the lots were originally sold, to 16, by conveying 50 feet of East Back street, extending from North Main to North Back street, and leaving an alley of 16 feet, as a passway for the defendants, along their front. Their ancestor took with his title all the appurtenant advantages of a street 66 feet wide; and the tendency of converting it into an alley would, or might

ing off streets, third parties have been induced to buy lots adjacent to them, and build on the lots, by an individual grantor, the dedication to the public use has been held irrevocable, although the streets may not have been formally accepted by the authorities of a town in which they lie. Grogan v. Town of Hayward, 4 Fed. Rep. 161. No one can acquire, as a general rule, by adverse occupation, as against the public, the right to a street or square dedicated to the public use. Hoadley v. San Francisco, 50 Cal. 265; People v. Pope, 53 Cal. 437. We may deduce from the rules of law already stated the further principle that the owner of a lot having a property or easement appurtenant in the adjacent streets, with reference to the advantages of which they expended their money for the land, and the improvements put upon it, cannot be deprived of their rights by a sale for the benefit of the town that was in effect, though not nominally, one of the grantors through whom they claim title, nor has the legislature the power to deprive them of such appurtenant rights by authorizing such grantor, whether a person or a corporation, to again enter upon and sell such streets to others. The general assembly cannot, without a violation of the constitution, divest, or provide for divesting, by law, the right of a person to his property, for the purpose of vesting such right in another person or corporation, merely for private use, at all; and it has no power, under the organic law, to provide for taking private property for public purposes without just compensation, to be ascertained in a mode pointed out by the law. The appurtenant right of the owner of a lot in the streets that form its boundaries at the time when he, or those under whom he claims, bought it originally, with reference to such outlets, is protected against the reassertion of the grantor's claim to it just as fully as is his title to the lot conveyed, even though the soverign state may undertake by law to sanction the re-entry on the streets by one claiming under his title. Neither the mayor of the town of Taylorsville nor the county commissioners of Alexander county, by virtue of the authority derived from section 1, c. 86, Priv. Laws 1887, to hold lands conveyed to the town, nor under the more explicit power to sell streets, that in terms is given by chapter 8, Priv. Laws

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in the easement for the benefit of the town and without compensation to them. Adams v. Railroad Co., supra; 2 Dill. Mun. Corp. § 675, p. 674, note 1. The defendants do not own the fee in the street, but hold only an appurtenant easement therein, and the municipal corporation that sold the lots occupied the same relation to them as would an individual grantor who had originally sold to them, or to those claiming under them; and he could, neither with nor without authority purporting to be derived from the legislature, have reasserted his right to the streets laid out by him before selling. New Orleans v. United States, 10 Pet. 717; Grogan v. Town of Hayward, supra. The plaintiffs have shown no such title as would warrant the court in granting a writ of possession. If the fee were vested in the town, which is not conceded, there would still be wanting in the plaintiffs, its grantees, the right to prevent possession and occupancy of a street dedicated to the public. Cincinnatti v. Lessee of White, 6 Pet. 431. It is not necessary to decide whether the mayor of the town of Taylorsville, by joining the chairman of the board of county commissioners, could, by virtue of a private sale, make a valid conveyance of any land belonging to the town, when the statute (Code, § 3824) gave the power to the mayor and commissioners of any incorporated town to sell at public outery after thirty days' notice. If the original conveyance did not operate to pass the | title to the street when executed, the legislature could not, pending this suit, impart to it such vitality as to relate back to the commencement of the action, and establish plantiffs' right to recover. The municipality derives its powers from the express grant of the legislature, and exercises and enjoys them subject to the legislative right of revocation; but, in controlling the property of the corporation, the general assembly is always restricted by the fundamental principle that private property cannot be taken for public use without just compensation, nor can a town be invested with authority to violate its implied contract, either directly or through its grantee, who is in privity with it, to provide a street 66 feet wide for the advantage of a lot conveyed by one who held in trust for the benefit of the town. There is no error. Judgment must be affirmed.

RANDALL V. RICHMOND & D. R. Co. (Supreme Court of North Carolina. Dec. 21, 1889.) STOCK-KILLING CASES · PRESUMPTION OF NEGLIGENCE.

Code N. C. § 2326, providing that the killing, etc., of cattle "by the engines or cars running upon any railroad shall be prima facie evidence of negligence on the part of the company," applies where the cattle are yoked to a cart, and in charge of a driver, as well as where they are running at large. MERRIMON, C. J., dissenting.

This was a civil action, tried at the July term, 1889, of the superior court of Madison county, before CLARK, Judge.

The action was brought to recover damages for the negligent killing of three oxen, belonging to plaintiff, by the defendant's engineer, running on the Western North Carolina Railroad. The plaintiff testifies that he was traveling on the public road, returning from a station on defendant's road, between 8 and 9 P. M., in July, 1888, and driving the oxen, yoked up to a cart. At one point, about 100 yards from said depot, and just above a regular crossing of the said road, the public road ran very close to the depot track. That just above and below this point the public road diverges further from the railroad track. That the train was out of schedule time, and came down the road, meeting the team of the plaintiff. That, just as plaintiff reached this narrow point, where the public road ran close by the side of the railroad, he heard a slight blow from the engine, and almost immediately the engine came around a curve on the mountain, 60 or 70 yards off. That the blow was not the ordinary station blow, nor sufficient to give warning, and that for the regular road crossing, close by, no blow was given. That if the regular station blow or the crossing blow had been given he could have stopped his oxen before he got to the place where the public road ran close by the track. That there was a large pile of wood, behind which he could have stopped. That, the blow for the crossing not having been given, in ignorance of the approaching train he had advanced to the narrow point, where on one side was the railroad, and on the other the steep side of the mountain. The train suddenly coming around the curve, the noise and blazing head-light so frightened the oxen that in attempting to get out of the way three of them got on the track, and were killed. Defendant company took charge of the beef, and sold the hides. That the oxen were worth to him $150, and on the market would have sold for $140 to $165. They were killed in July, 1888, and this suit was begun in August of same year. The engineer, Dock Stevens, testifies that he blew the station blow, and as loud as usual, and at the usual place, and after he had blown it he felt his engine strike something; that he did not see the oxen at all; that he was at the usual place on the engine, and on the lookout; that when he stopped at the depot he went back, and found that three oxen were killed; that he was driving the engine the usual speed and with care, but saw nothing on the track; that he did not blow for the crossing. The defendant asked the court to charge: "(1) That, as

the oxen were not straying nor at large, but yoked to a cart, and under charge of a driver, the statute raising a presumption of negligence in such cases does not apply. (2) That, if the presumption of negligence did arise, it was rebutted by the plaintiff's own evidence. (3) That there was no evidence to go to the jury; that, there being no substantial conflict of the evidence, the court should, on the evidence, direct a verdict to be entered for the defendant." The court declined to so instruct the jury, and charged them, among other things: That it being admitted that defendant's engineer killed the cattle, and the suit having been brought within six months, the statute raised a presumption of negligence, and the burden was on the defendant to rebut statutory presumption. That at crossings it was the duty of the defendant's engineer to give notice by blowing his whistle, but that, if the station whistle was blown in sufficient time, and loud enough for the plaintiff to have stoppped his team before approaching the crossing, and the narrow spot leading to it, and the defendant did not heed the warning, but pressed on, and his oxen, becoming frightened, got on the track, and were killed, the presumption of negligence was omitted, and the jury should find for the defendant; but if the station whistle was not blown in due time, and the plaintiff, without warning, drove his oxen to the narrow place where the engine, coming around the curve, frightened his oxen so that they jumped on the track, and were killed; or if the jury should find that, if the regular whistle for the crossing had been blown, the plaintiff could and would have stopped before getting to the narrow place, where the railroad was on one side and the mountain on the other, then the presumption of negligence would not be rebutted. Verdict for plaintiff. Motion for new trial, assigning as error the refusal to charge as requested, and the part of the charge above given. Motion refused Judgment. Appeal.

D. Shenck and F. H. Busbee, for appellant.

AVERY, J., (after stating the facts as above.) Code, § 2326, provides that" when any cattle or other live-stock shall be killed or injured by the engines or cars running upon any railroad it shall be prima facie evidence of negligence on the part of the company, in any action for damages against said company provided, that no person shall be allowed the benefit of this section, unless he shall bring his action within six months after his cause of action shall have accrued." The court below was asked to instruct the jury that when the cattle killed were yoked to a cart, and in charge of a driver, the statute does not apply, and no presumption of negligence arises from the fact of killing. The charge given in lieu, that the law presumed negligence upon the admitted facts, constitutes the ground of the first exception.

Where words have a known technical meaning, it must be adopted in construing a statute, but, apart from that, they must be interpreted according to their ordinary import; and where there is no ambiguity,