#### RALEIGH & AUGUSTA AIR-LINE RAILROAD COMPANY v. DAVID A. JENKINS, Public Treasurer.

The Public Treasurer is not bound, under the ordinance of the Convention, ratified the 11th of March, 1868, to accept “ special tax bonds ” and to deliver a like amount of Chatham Railroad bonds in exchange therefor, to the Raleigh & Augusta Air-Line Railroad Company.

(McAden v. Jenkins, 64 N. C. Rep. 796, cited and approved. See ease between same parties, at this Term.)

Civil action, to obtain an order for mandamus, tried before Moore, J., at Spring Term, 1872, of Wake Superior Court.

By virtue of an ordinance of a Convention of the people of the State, entitled “ An Ordinance to amend the charter of the Chatham Railroad Company,” ratified the 11th day of March, 1868, the Public Treasurer of the State was authorized and directed to deliver to the said company coupon bonds of the State, to an amount not to exceed twelve hundred thousand dollars, with coupons for interest at six per *500cent., payable semi-annually, the principal payable thirty years from the date thereof.

By the said ordinance it was further provided that before, the Public Treasurer should deliver any of the said bonds to the said company, the said company should execute and deliver to the Public Treasurer its coupon bonds for the same amount, of the same date, and bearing the same interest,, and the principal and interest payable at same time and place, as the coupon bonds of the State directed to be issued to the said company.

That to secure said bonds, the State should have a lien on the property, real and personal, of said company, and secured by a mortgage.

It was also further ordained by the third section of said ordinance, “ That the Chatham Railroad Company may at. any time before maturity, take up the bonds of said company deposited with the-Public Treasurer, by substituting in lieu thereof coupon bonds of the State or other indebtedness of the State.”

An exchange of bonds was duly made between the State and the said railroad company, and the mortgage duly executed and registered. By an act of the General Assembly, ratified the 13th day of December, 1871, entitled “ An Act concerning the Chatham Railroad Company, amendatory of certain acts, and authorizing a change of name,” said company was allowed to and did in fact change its name to that of the Raleigh and Augusta Air-Line Railroad Company. And by said act the said company, by the name of the-Raleigh a*nd Augusta Air-Line Railroad Company, became entitled to all the rights, privileges and immunities at any time by law granted to the said Chatham Railroad Company. By section 5 of said act it is enacted, “ That the said Raleigh and Augusta Air-Line Railroad Company may at any time hereafter discharge the bonds of the Chatham Railroad Company deposited with the Public Treasurer in the. *501same manner and not otherwise as the said Chatham Railroad Company is now 'authorized by law to do, and the Public Treasurer is hereby directed to return to the said Raleigh and Augusta Air-Line Railroad Company the said bonds of the Chatham Railroad Company, on payment in manner above prescribed, until the whole amount of said bonds of the Chatham Railroad Company held by the State shall have been surrendered.” These amendments were duly accepted by the Chatham Railroad Company, and thereby it became the Raleigh and Augusta Air-Line Railroad Company. On the first of April, 1872, and before the bonds of the plaintiff became due, the plaintiff tendered to the defendant, David A. Jenkins, Public Treasurer of the State of North Carolina, divers bonds of the State, issued at different dates and under various acts, but all under acts passed after the 11th March, 1868. The Public Treasurer refused to surrender and exchange. The plaintiff brought this action. Defendant demurred to the complaint. His Honor sustained the demurrer and ordered that the action be dismissed* Plaintiff appealed.

Batchelor, Edwards & Batchelor and Clark, for appellant.

Hargrove, Attorney General, contra.

Pearson, C. J.

' This is an application for a mandamus to require the Public Treasurer to accept-a tender of special tax bonds (as they are termed), and to deliver to the plaintiff a like amount of the Chatham Railroad bonds held by him.

The case is governed by McAden v. Jenkins, 64 N. C. Rep. 796. There are other considerations which support our conclusion set out in another case between the same parties, decided at this Term; to which reference is made.

Order for mandamus refused.

Per Curiam.

Judgment affirmed.