#### RALEIGH AND AUGUSTA AIR LINE RAILROAD CO. v. ABERDEEN AND WEST END RAILROAD CO.

(Decided October 24, 1899.)

Specific Performance — Injunction—Issues of Fact — Questions of Law.

Where issues of fact are raised in the pleadings, involving application for equitable relief, the facts should first be determined by the jury, and the legal questions considered afterwards. In such case a restraining order properly issued was properly continued to the hearing.

Civil Aotiow to enforce specific performance of certain alleged traffic contracts and agreements in regard to freights and to enjoin a threatened refusal by the defendant to carry opt the provisions of said contracts and agreements, heard before Brown, J., upon pleadings and affidavits at February Term, 1899, of the Superior Court of Waicb County.

The motion of defendant was to dissolve an order of restraint which had been granted in the cause.

The pleadings involved issues of fact. His Honor continued the injunction order until the hearing. Defendant appealed.

Messrs. B. 0. Burton and Douglass & Svinms, for appellant.

Messrs. W. II. Day, J. B. Batchelor and S. II. MacBae, for appellee.

Eurtcmss, J.

This case comes to this Court upon the appeal of the defendant from an order continuing the injunction to the hearing.

Upon examining the pleadings, we find issues of fact raised by allegations in the complaint and denied in the answer, that *97should be tried by a jury. If the allegations of the complaint, which are denied by the answer, should be found for the defendant, it would seem that such finding would substantially end the case. But if these issues should not be found in favor of the defendant, the facts in the case would be found and settled, and it would then be time enough to consider the important legal questions discussed on the argument. Therefore we are of the opinion that the injunction should be continued to the hearing.

The judgment appealed from is affirmed.