#### THE NEUSE RIVER NAVIGATION COMPANY v. THE COMMISSIONERS OF NEW-BERNE.

Where, to a writ of alternative mandamus, the defendant exhibited a bill in equity, alleging- an equitable defence to the demands of the plaintiff, and praying for an injunction to restrain him from prosecuting the writ, and asked that that might be received as a return to the writ, it was Beld not to be error in the Court to refuse the injunction, and to order the defendant to make return.

Appeal front the Superior Court of Craven County, Judge TIeatii presiding.

The plaintiff exhibited a petition for an alternative mandamus, reciting that, under the authority of certain acts of the General Assembly, the defendants had made a subscription to the capital stock of the Neuse River Navigation Company, and that certain assessments had been made on the stockholders, by virtue of which the defendants became bound to pay $50,000 ; that the same had been demanded, and the defendant had failed to pay, and praying that a writ of “ alternative mandamus issue to the Commissioners of New-Berne, aforesaid, commanding them that, unless they show good cause to the contrary, whenever thereto required, they pay to your petitioner, the said Neuse River Navigation Company, the said assessments or instalments due on the said subscription to the capital stock of the said company, according to the provision of the said act; that upon their failure to show cause, they be absolutely and peremptorily commanded to pay the same.”

Upon which petition an order was made, and a writ of mandamus, in the alternative, issued, directed to the defendants, commanding them “ to issue, or cause to be issued, bonds to the aggregate amount of $50,000,” or show cause to the contrary.

To which the Sheriff returned, that the writ had been duly served upon the defendants, whereupon the plaintiff’s counsel moved that the defendant be required now to malee rebwm to *205the said writ, or, on failure to do so, that a writ of peremptory mandamus do next issue.

Whereupon, the defendants moved the Court, instead of making any return to the said Court, that an injunction issue upon a bill, which they produced in open Court, to restrain the plaintiff from further prosecution of their said writ.

The Court, being of opinion that an injunction cannot issue to restrain a mandamus, refused the motion, and ordered the defendants to make return to the said writ of mandamus. Erorn which order and judgment of the Court, the defendants prayed an appeal to the Supremo Court, which was granted.

Haughton and McRae, for the plaintiff.

Stevenson and J. W. Bryan, for the defendants.

Pearson, C. J.

Without deciding that an injunction cannot be issued to restrain a party from proceeding in an application for a mandamus, where mere private civil rights are involved, and where some matter exists which makes it against conscience to enforce the legal right, but being merely equitable in its nature, cannot be taken advantage of by setting it out as a part of the return to the mandamus, for we will not say that such an equity may not, under peculiar circumstances, exist, although an instance of it has not. suggested itself to our minds, we concur with his Honor, that the fact that the defendant had exhibited a bill in equity against the plaintiff, praying, among other things, for an injunction to restrain further proceedings in the application for a mandamus, which injunction the Judge had refused to direct to be issued, cannot be taken as “ a return,” or as a cause or excuse for not making one, consequently, there is no error in the order “ that the defendant make return to the -writ of mandamus,” from which order his Honor allowed the defendant to appeal. This we consider to be the only point presented. It is true, that the plaintiff moved that “the defendant be required, now, to make return, and, on failure, that a writ of peremptory mandamus do next issue; but there is no judgment that *206 such peremptory mandamus do next issm, and it would have been inconsistent with the permission to appeal from the order requiring a return, and which was vacated by the appeal; otherwise it may be that the defendant would have made as a return the several matters set out in the bill in equity, or excepted in the nature of a motion in arrest of j udgment, for error of substance apparent on the face of the proceedings.

It may be well to call attention to the fact, that the prayer of the petition is, “ that the Commissioners show cause why they shall not be required to pay the amount of the assessments to the petitioner,” and on failure, that they be absolutely and peremptorily commanded “ to pay the same as aforesaid.” The writ is, “these are therefore to command you, and each of you, as Commissioners, to issue, or cause to Toe issued, Toonds to the aggregate amount,” cfee.” "Whether the variance is waived, or is fatal, will be a question on the motive for a peremptory writ.

It was stated at the bar, that the object of the appeal was to try the question whether an “injunction could not be issued to restrain the mandamus,” his Honor having refused it, being of opinion that there was no such jurisdiction in equity. This appeal does not present that question; for which reason -we are not at liberty to decide it. The application for the injunction, being on the bill merely, was, of course, ex parte, and might have been made to any other judge, as well as to his Honor. If the defendant files the bill, and upon the coming in of the answer, a motion for an injunction upon the bill answer, and the egwity confessed is refused, an appeal may be taken from such interlocutory order, and the question will be presented.

Pee CueiaM, The order appealed from affirmed.