ants he makes a specific lien on the different tracts of land conveyed to them by the intestate, Matthew McCauley, and gives judgment therefor. This judgment the defendant Williams moves to have vacated and stricken from the records, and to have the execution issued thereon recalled and vacated. This motion is resisted by the plaintiff administrator and W. R. Lloyd, who had become purchasers of a part of defendant Williams' tract of land, under an execution issued by the clerk upon his judgment, fixing the defendant Williams with the yearly sum of $19 for the support of the widow, Nancy. They (the respondents to this motion) say that said judgment is a final judgment, taken according to the regular course and procedure of the court; that more than one year has elapsed since its rendition; and that the court has no power to set it aside. And it is almost wonderful to see the number of authorities cited by both sides to support their contentions, which shows how dangerous a thing it is to depart from the known and approved way, and to undertake, by new methods and doubtful means, to procure the judicial sanction of the court. This was done, we doubt not, in the supposed interest of time and economy; but it has proved not to be in the interest of either, but to be the source of delay, litigation, and loss to both sides.

The argument took a much broader range than it was necessary to reach the point upon which the case must turn. There was a great deal said as to whether the widow, Nancy, was a party or not; whether the administrator who brought the proceeding was a party when this judgment was rendered. But the view we take of the case makes it unnecessary for us to say how this was. We put our judgment on the ground of a want of jurisdiction in the clerk to render such a judgment. If such a judgment as this could be rendered, it must be done by a court of equity or a court having equitable jurisdiction, when all the parties are properly before it, and then not unless the matters of equity are properly pleaded, and before the court. But the clerk is a court of very limited jurisdiction, only having such jurisdiction as is given it by statute. It has no common-law jurisdiction, nor does it have any equitable jurisdiction. Bragg v. Lyon, 93 N. C. 151; Code, §§ 1903, 1904. The clerk had no power to render a personal judgment against the defendant Williams, and declare it a lien on her land; and such a judgment is absolutely void, and may be so declared at any time. Freem. Judgm. §120. This is bound to be so upon principle. A judgment rendered by a court having no jurisdiction is no judgment. It is absolutely void, and any execution issued on it is void, and gives no force or validity to acts of the sheriff done thereunder. This is so, without calling to the aid of defendants the doctrine of Green v. Ballard, 116 N. C. 144, 21 S. E. 192, McLeod v.

Williams (at this term) 30 S. E. 129, and McArter v. Rhea (at this term) 30 S. E. 128, it appearing that the defendant Williams, against whom this judgment was rendered, was a married woman at the time said judgment was rendered, and this appeared of record. Respondents cited such cases as Harrison v. Hargrove, 120 N. C. 96, 26 S. E. 936, and Sutton v. Schonwald, 86 N. C. 198. But they are not in point. There the judgments were not void for want of jurisdiction in the court, but only voidable. This distinguishes them from the case now before the court. There is no error, and the judgment is affirmed.

FURCHES, J. This is an action of ejectment to recover possession of 72 acres of land, and damage for the wrongful detention thereof by defendants. The land originally belonged to Matthew McCauley, who died, intestate, in 1890, and the plaintiff M. A. McCauley administered on his estate. The feme defendant is a daughter of the intestate, Matthew, to whom he made a deed conveying this land before he died. The personal assets of the intestate's estate were insufficient to pay the debts and costs of administration, and the administrator, M. A. McCauley, brought a special proceeding in the superior court of Orange county to sell lands for assets. After some other lands that had not been conveyed by the intestate were sold, and the case had been transferred to the civil issue docket for trial, it was held that this land, and other lands conveyed by the intestate to his other children, were liable for sale for assets. But a reference was ordered to ascertain what amount was still wanting for that purpose. This amount was thus ascertained, and paid by the children and grantees of said intestate, and no sale for assets was had. In the same order of reference to ascertain the amount still necessary to pay debts and costs of administration, the matter was submitted to said commissioners, to inquire and report what amount should be paid to Nancy McCauley, widow of the intestate, as her yearly support, and in what proportion it should be paid by the children and grantees of the

said Matthew. This was done, and they found that she ought to have $100 a year, and that the feme defendant's part of that sum was $19.74 per year. This report was not made to the superior court in term, but to the clerk out of term; and he proceeded to enter up judgment against the defendant and the other children and grantees for the yearly allowance so reported against them, and to declare it a lien on their lands. Under this judgment of the clerk, an execution issued to the sheriff of Orange county under which he sold, and the plaintiffs M. A. McCauley and W. R. Lloyd became the purchasers of 72 acres of defendants' land, at $1 per acre. The plaintiff M. A. McCauley was the administrator that instituted the proceedings to sell the lands for assets. He was also one of the commissioners appointed by the court to assess the lands, and report their value, and the amount they should pay the widow yearly. And in this report he assessed the defendants' lands at $6 per acre, and he bought the same (having the line run to suit him) at $1 per acre. Defendants had offered to repay him the amount he had paid out for the land, and he had refused this offer. He claimed, and the jury had found, that the yearly rental value of said lands (that he had paid only $72 for) was $40, being more than 50 per cent. on the price he paid. These matters were all commented on by counsel for defendants, but we will not comment on them, as our judgment is put upon other grounds.

In another proceeding between the same parties, styled "McCauley v. McCauley" (at this term, 30 S. E. 344), we have discussed the validity of this judgment, under which plaintiffs purchased and claim title to the land in controversy, and have held that it was utterly void for want of jurisdiction in the court; and, as the judgment was void, the execution issued thereon was void, and the sale under which plaintiffs purchased was a nullity, and the deed of the sheriff to them is also void, and conveyed no title to the plaintiffs. As plaintiffs have shown no title to the land, they can recover neither possession nor damage. There is error.

JONES v. RHEA.

(Supreme Court of North Carolina. May 24, 1898.)

BILLS AND NOTES-PAROL EVIDENCE.

In a suit on a note expressed to have been given for legal services rendered by the payee, the maker may show that the agreement was that the payee would attend to all her business in connection with an estate, and that a large amount of work remained to be done which he refused to do.

Appeal from superior court, Buncombe county; Norwood, Judge.

Action by W. W. Jones against H. E. Rhea. There was judgment for plaintiff, and defendant appeals. Reversed.

W. J. Peele, for appellant. Adams & Carter and Jones & Boykin, for appellee.

FAIRCLOTH, C. J. Plaintiff sues to recover the amount due on three promissory notes of defendant. The notes read as follows: "Twelve months after date, with interest from date at the rate of 8 per cent. per annum, I promise to pay W. W. Jones, or order, the sum of six hundred dollars for services rendered me as attorney in the settlement of the estate of H. K. Rhea, deceased. Witness my hand and seal the 13th day of November, 1893. H. E. Rhea. [Seal.]" The defendant admits the execution of these notes, and avers that she gave the notes "with the understanding and agreement that he would attend to all her business in connection and growing out of the administration of the estate of H. K. Rhea, deceased, until the administration of the estate was completely wound up; that the estate has not been wound up; that there is a large amount of work yet to be done; and that the plaintiff has withdrawn from her case, and refuses any longer to be her counsel and attorney." She also pleads partial failure of consideration, nonperformance of agreement by plaintiff, and payment for all services rendered. On the trial the defendant offered to show by parol that part of the agreement was not expressed in the notes, and to support all of her averments by parol. Her offer was not allowed, and objections to her evidence were sustained. Judgment for plaintiff, and appeal by defendant.

The plaintiff contends that the notes, being a higher grade of evidence, are the only competent evidence of the contract. The defendant insists that the notes express only a part of the contract, and that parol evidence is admissible to show the entire contemporaneous agreement. The competency of this evidence is the question presented. A hasty reference to the decisions on this subject sometimes leads to the conclusion that they are irreconcilable. There may be some conflicts, but a careful application of the correct principles of law will dissipate most of the seeming contradictions. The distinction must be kept in mind in each case. One of those principles is that, where the entire contract is in writing, the writing cannot be contradicted by parol, because the latter is a lower grade of evidence by reason of the fact that the fallibility of human memory weakens the effect of such testimony. Another principle is that, where the entire contract is not reduced to writing, evidence of the omitted and contemporaneous part is competent, although not omitted by mistake or fraud; not for the purpose of contradicting or explaining that which is in writing, but for the purpose of enabling the jury to ascertain the entire and true agreement of the parties. The writing stands, and the parol proof supplies the omission, and thus the intent of the parties is made manifest. Another princi

ple is that a total failure of consideration may be given in evidence to defeat the action on a note, but it is otherwise where there is only a partial failure. Washburn v. Picot, 14 N. C. 390; Johnston v. Smith, 86 N. C. 498. These principles, we assume, will not be disputed by any lawyer who has a rag of his gown on his back, but the trouble arises in their application to the facts in each case. We must assume the averments of the defendant to be true, for the reason that she offered to prove them, and was not allowed to do so, and that is her exception. In Daughtry v. Boothe, 49 N. C. 87, a slave was hired out publicly, and one of the terms of hiring was that the slave was not to be carried out of that county. A note for the hire was executed, reciting the other terms, but omitted the stipulation above mentioned. It was shown that the slave was carried into the swamps of another county, and it was alleged that thereby the health of the slave was greatly impaired. An action was instituted for breach of the hiring contract, and defendant put the note in evidence as the contract. Plaintiff offered parol evidence of the omitted stipulation as a part of the contract. The evidence was admitted, and this court affirmed the ruling. In Johnson v. McRary, 50 N. C. 369, the terms of a contract for the sale and purchase of a cotton crop were all reduced to writing, and signed by the buyer, except as to the time of delivery. It was held competent to prove by parol that at the time the written contract was entered into a day was fixed for the delivery of the cotton. These decisions have been repeatedly approved by this court. Womack's Dig. 4404, 2083. These cases support the defendant's contention in the present case.

To avoid the appearance of overlooking the plaintiff's authorities, we will examine them. Moffitt v. Maness, 102 N. C. 457, 9 S. E. 399: This was to foreclose a mortgage without any note secured, except as recited in the mortgage. The opinion is a general expression of law, citing a list of cases on divers questions. Referring to the facts and conclusion of the court, the case seems to decide that a written contract cannot be contradicted by parol proof, which is admitted. The case was peculiar. No note was produced, and the mortgage contained a positive promise to pay a definite sum. The answer denied the execution of the bond and mortgage, and set up no equitable defense whatever, and the court said, "We must, therefore, determine the question in its legal aspects alone." In Manning v. Jones, 44 N. C. 368, the court said the evidence "added no new covenant, nor did it contradict or explain any one that was contained in it [the deed]." In Sherrill v. Hagan, 92 N. C. 345, Ashe, J., said, in reference to Manning's Case, supra: "It was held that the proof was admissible, the deed being an execution of one part of the agreement, the other having been left in parol; so that the proof of

fered was not to add to, alter, or explain the deed." There was no suggestion of fraud or mistake. The defendant, on the trial, offered to prove that it was agreed that the mortgage should cover whatever should be found to be due upon a settlement. The superior court excluded the evidence, and this court "modified and affirmed the judgment." Taylor v. Hunt, 118 N. C. 171, 24 S. E. 359: This is like Moffitt v. Maness, supra, in which the court says: "While it is true that, where a contract is not required to be in writing, if the entire contract is not reduced to writing, the other part may be proved by parol. Nissen v. Mining Co., 104 N. C. 309, 10 S. E. 512." Meekins v. Newberry, 101 N. C. 17, 7 S. E. 655: This was an action for damages resulting from breach of contract. Plaintiff put in evidence a receipt, reciting various things agreed to. Defendant offer

ed to show some unwritten part. This court held the evidence incompetent on the ground that the paper writing "purports by its terms and the nature of the things agreed to be done to embrace the whole agreement of the parties. It implies completeness." Harris v. Murphy, 119 N. C. 35, 25 S. E. 708: This was an action for work and labor done, and the defendant resisted parol evidence, and put in a receipt for part payment, which receipt recited the contract. Plaintiff replied

that some time after the written contract these parties verbally agreed to modify the said agreement, and make some changes in the work, and agreed on the price of certain work resulting from the change, and offered evidence of the modified and subsequent agreement. This court held the evidence competent. These cases relied on by the plaintiff do not conflict with the principle announced in Daughtry v. Boothe, supra, but recognize and are consistent with it. In an action for specific performance of a contract under seal parol evidence is admissible to defeat the demand for equitable relief, because a court of equity may grant or withhold such relief in cases where it seems just. Herren v. Rich, 95 N. C. 500. Under our present system the defense may be had in different ways; that is, by counterclaim, by an independent action for the breach of the agreement, or by plea in the nature of recoupment, as in the present case. As the exclusion of the defendant's evidence was erroneous, she is entitled to a new trial. Error.

ROBERTS v. ROBERTS et al. (Supreme Court of North Carolina. May 24, 1898.)

SPECIAL VERDICT-CERTAINTY.

Where a defendant, indebted on certain notes, claimed credits in addition to those indorsed on the notes, a special verdict finding him indebted "to the face of the notes, with interest, less the credits," is not indefinite, but means that the credits allowed are those indorsed on the notes.

Appeal from superior court, Cherokee county; Norwood, Judge.

Action by A. Z. Roberts against W. R. Roberts and another. There was a judgment for plaintiff, and defendant Roberts appealed. Affirmed.

J. W. Cooper, for appellant. G. S. Ferguson, for appellee.

FAIRCLOTH, C. J. The plaintiff sues on two notes, with one credit on each. The defendant Roberts averred that he had made other payments, in goods, work, etc., which are not credited on the notes. Each party introduced evidence on said averred payments, and the court submitted the following and only issue: "Is the defendant W. R. Roberts indebted to the plaintiff; and, if so, in what amount? Ans. The face of the notes, with interest, less the credits." The only exception by the defendant is to the judgment; he contending that the verdict was too indefinite to warrant any judgment. What, then, does "less the credits" mean? Our construction is that it means the credits on the notes. To draw the judgment, only a calculation was necessary, which was done by his honor. "Id certum est quod certum reddi potest." Defendant relied on Morrison v. Watson, 95 N. C. 479, but it does not fit his case. There were several issues, and the answers were inconsistent. The court said: "If there be an irreconcilable conflict in the findings of the jury upon the issues submitted, or between the verdict and the judgment, a new trial will be awarded." If the jury intended other credits, it is reasonable to suppose that they would have specified those allowed, and the amount. Those indorsed were specific enough. The judgment is agreeable to the verdict. Affirmed.

A tender was derailed at a point where the roadbed was in good condition, but was dragged along until it struck some rotten ties; breaking off the ends and spreading the track, which caused the train to be ditched, and the deceased, a brakeman, to be killed. Held, that the question of negligence was for the jury.

Appeal from superior court, Rowan county; Starbuck, Judge.

Action by R. L. Wright, administrator of the estate of Wilson Williams, deceased, against the Southern Railway Company. There was a judgment for defendant, and plaintiff appeals. Reversed.

L. S. Overman and A. C. Avery, for appellant. Chas. Price, G. F. Bason, and A. B. Andrews, Jr., for appellee.

CLARK, J. This is an action for damages for the death of a brakeman, caused by the

derailment of a train. The facts are thus stated in the defendant's brief: "About sixty feet east of the end of the curve, the tender jumped the track. At the point where the tender was derailed, and for fifty to two hundred feet beyond, going west, the track was perfect; then, some fifty to two hundred feet beyond the point where the tender was derailed, there were rotten crossties for some distance. The train ran for some distance after it passed the point where it was derailed, and, after it struck the rotten cross-ties, it broke off the ends of them, and spread the track; and the tender and eight cars were finally thrown down the bank, some 12 feet. Neither the engine in front nor the cab in the rear of the train was derailed." The court held that, there being "no evidence that at the place where the cars left the track the condition of the roadbed or track was defective, in no reasonable view of the evidence was the plaintiff entitled to recover," upon which intimation of opinion the plaintiff submitted to a nonsuit, and appealed.

In this ruling there was error. If it be conceded that the cross-ties were sound where the tender jumped the track, still, but for the rotten cross-ties further on, and the consequent spreading of the track, it may be that by the use of air brakes the train could have been stopped and kept on the line, and the cars would not have rolled down the embankment. The destruction of the train and the injury of the intestate may not have been the unavoidable and necessary consequence of the tender's jumping the track. We do not know how the fact was. But the evidence should have been submitted to the jury, under proper instructions from the court. If, notwithstanding the tender's jumping the track should be found to have been an accident not caused by any fault of the defendant, yet if the defendant, by having proper appliances and a good roadbed, could have avoided the injury to the intestate, it is liable. As the facts may be more fully or differently developed on another trial, it can serve no purpose to discuss them here more at length. New trial.

Appeal from superior court, Robeson county; McIver, Judge.

Action by W. B. Cooper, trading as W. B. Cooper & Co., against the Adel Security Company and others. There was a judgment for defendants, and plaintiff appeals. Reversed.

T. A. McNeill, for appellant. Frank McNeill, for defendant McKellar.

CLARK, J. The plaintiff and the defendants McKellar and McQueen are residents of this state. The defendant Adel Security Company is a Georgia corporation, and the plaintiff alleges in his complaint that he obtained a judgment on February 18, 1896, against said corporation, in the courts of Georgia, upon process personally served, for $433.03, besides interest and costs; that the corporation has sold out most of its property, and ceased to run its lumber mill, and is insolvent; that the other defendants are stockholders in said corporation, and are indebted to the corporation, in the sums named in the complaint as to each, for unpaid balances on stock subscriptions; that the corporation has no other assets than its unpaid stock subscriptions, and the names of the other stockholders than those named in the summons are unknown to the plaintiff; wherefore he brings this action in the nature of a creditors' bill to have an account stated of the assets and liabilities of the corporation, and to have a sufficiency applied to the payment of the indebtedness of the plaintiff and others. Bronson v. Insurance Co., 85 N. C. 411.

The summons was served as to defendants McKellar and McQueen and returned not served as to the Adel Security Company, whereupon the plaintiff, upon affidavit of that fact, that said corporation is a nonresident, and has property in this state liable to plaintiff's claim, etc., in regular form procured a warrant of attachment, which was levied upon the indebtedness to the company by McKellar and McQueen, and publication of summons. The attachment was dismissed upon the ground that "the unpaid balance on subscriptions to the capital stock of said company due by McKellar and McQueen, residents of Robeson county," was not such property as could be reached and subjected by attachment proceedings, and the action was "dismissed as to McKellar and McQueen because there had been no personal service on the Adel Security Company."

The balances unpaid on stock subscriptions are a trust fund for the benefit of the creditors of a corporation, and may be subjected to the payment of its debts. Foundry Co. v. Killian, 99 N. C. 501, 6 S. E. 680; Clayton v. Knob Co., 109 N. C. 385, 14 S. E. 36; Hill v. Lumber Co., 113 N. C. 173, 18 S. E. 107; Worth v. Wharton (at this term) 29 S. E. 370. It is true that the Adel Security Company is a necessary party to such proceed

ing, and that, as it is a nonresident, and personal service cannot be had upon it, it can only be brought into court by publication when "property" of said company has been attached. Bernhardt v. Brown, 118 N. C. 700, 24 S. E. 527, 715; Long v. Insurance Co., 114 N. C. 465, 19 S. E. 347; Pennoyer v. Neff, 95 U. S. 714. This raises the question whether the unpaid stock subscriptions due the corporation by McKellar and McQueen are "property" which is liable to attachment here for the purpose of acquiring jurisdiction, to the extent of said indebtedness, by a proceeding quasi in rem against the corporation. The decisions are in hopeless conflict in different states on this point. See notes to Railroad Co. v. Smith (Miss.) 19 Lawy. Rep. Ann. 577 (s. c. 12 South. 461). The decisions are uniform that, for purposes of taxation, the situs of a debt is the person of the creditor, but for purposes of acquiring jurisdiction against a nonresident by attachment there is a conflict. This state, however, is one of those which hold that, under our statute (Code, §§ 218 [1], 363 et seq.), the indebtedness in the hands of the debtor may be attached. Winfree v. Bagley, 102 N. C. 515, 9 S. E. 198. In dismissing the attachment, as well as in dismissing the action, there was error. Error.

THRIFT v. BOARD OF COM'RS OF TOWN OF ELIZABETH CITY et al. (Supreme Court of North Carolina. May 26, 1898.)

MUNICIPAL CORPORATIONS-NECESSARY EXPENSESCONSTITUTIONAL LAW-LEGISLATIVE AUTHORITY -MONOPOLY-RULES OF LEGAL CONSTRUCTION— INVESTMENT OF FOREIGN CAPITAL-PUBLIC POL

ICY.

1. Const. art. 7, § 7, prohibits towns from making a levy of a tax or incurring a debt, except for necessary expenses, without a vote of the people. Held, that water and light do not come within the exception.

2. A town cannot incur a debt or levy a tax for unnecessary expenses without legislative authority.

3. A grant of the exclusive use of the streets, alleys, sidewalks, public grounds, streams, and bridges of a town for the exclusive privilege of constructing and maintaining waterworks within its corporate limits violates Const. art. 1, § 31, declaring that "perpetuities and monopolies are contrary to the genius of a free state and ought not to be allowed."

4. Merely to induce the investment of foreign capital in the state, the rules of legal construction should not be varied to uphold a town ordinance for the construction of waterworks, which states that the exclusive privilege of constructing the same is granted as an "incentive and inducement" therefor.

5. No principle of public policy requires a variance of the rules of legal construction to sustain the validity of an ordinance for the construction of waterworks in a town, granting an exclusive privilege therefor, as an "incentive and inducement," whereby the investment of foreign capital in the state may be encouraged.

Appeal from superior court, Pasquotank county; Brown, Judge.