#### MILEY C. GLOVER v. UNION GUANO COMPANY.

(Filed 4 October, 1922.)

Injunction — Issues of Fact — Bills and Notes — Acceptance for Cash— Innocent Holder — Due Course — Questions for Jury — Trials.

Plaintiffs executed notes for tbe purchase of certain patent rights to I., and afterwards they mutually agreed to cancel them, but I. had hypothecated them with the defendant, and there was conflicting evidence in the plaintiff’s application for an injunction, whether the defendant was to return the notes to I., if not accepted as a cash' credit on the debt owed it by I., which had not been done, or whether the defendant was a holder for value without notice of the plaintiff’s equity: Held, the preliminary restraining order obtained in the suit should have been continued to the final hearing for the determination of the jury of the fact at issue.

Appeal by defendant from Iiorton, J., at February Term, 1922, of Nash.

Tbe defendant appealed from bis Honor’s judgment continuing a restraining order until tbe final bearing of tbe action.

Finch & Vaughan and Manning & Manning for plaintiff,

Swinh & Hutchins and Austin & Dmmpori for defendant.

Pee CuRiam.

For tbe plaintiff there is evidence tending to show tbe following circumstances. On 1 January, 1920, I. N. Glover contracted to sell tbe plaintiff a patent right, and as evidence of tbe purchase price tbe plaintiff executed and delivered two promissory notes, each in tbe sum of $1,000, due respectively 1 January, 1922, and 1 January, 1923. Some time after tbe notes were executed, tbe parties mutually agreed tbat tbe contract between them should be canceled and tbe notes returned to tbe plaintiff. I. N. Glover, however, retained possession of tbe notes, and being indebted to tbe defendant in tbe sum of about $5,000, delivered them to tbe defendant with tbe understanding tbat they should be returned to him if not accepted as a cash credit on bis indebtedness. Tbe defendant neither accepted tbe notes as a credit nor returned them. On tbe other band, tbe defendant insists tbat it became a bolder of said notes in due course without notice of any infirmity or equity.

*622Plaintiff applied for and obtained an order enjoining the defendant from disposing of the said notes until the final hearing of the, action. If the contention of the plaintiff and I. N. Glover be accepted by the jury, the defendant has no right to the notes in question, but otherwise, if the contention of the defendant be accepted. In these circumstances the controversy between the parties should be referred to the jury for determination, and the alleged rights of the plaintiff protected pending the hearing. Jones v. Jones, 115 N. C., 209; Hyatt v. DeHart, 140 N. C., 270; Tise v. Whitaker, 144 N. C., 507; Dunlap v. Willett, 153 N. C., 317; White v. Fisheries Co., 183 N. C., 228.

The judgment of the Superior Court is

Affirmed.