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FISHER v. BANK.
on his appointment dates back to the time of granting the order, even though certain preliminary conditions must first be performed and the receiver remains out of possession pending such performance." Beach on Receivers, 209; Worth v. Bank, 122 N. C., 397; Pelletier v. Lumber Co., 123 N. C., 596; 68 Am. St. Rep., 837; Bank v. Bank, 127 N. C., 432. The action is commenced by issuing the summons. The Code, Sec. 199. It would seem to follow that neither party has any priority by reason of the time of beginning their action. It may be that for the purpose of fixing the time when any rights of priority or liens attached, the day of service of the summons, when the party is brought into court, would be the proper time. In the view which we take of this case, however, it is not necessary to decide this question and we leave it open. The plaintiffs base their claim to a lien upon the ground that their action was, as in Hancock v. Wooten, 107 N. C., 9, brought for the purpose of vacating a fraudulent assignment and subjecting property put beyond the reach of the creditor, thus bringing it within the definition of a judgment creditor's bill as distinguished from a general creditor's bill. The preferential lien given by courts of equity in such cases is based upon the reason assigned by Chancellor Walworth in Edmuston v. Lyde, 1 Paige, 637; 19 Am. Dec., 454, cited by the court in Hancock's case; "On further examination it may seem unjust that the creditor who has sustained all the risk and expense of bringing his suit to a successful determination should in the end be obliged to divide the avails thereof with those who have slept upon their rights or have intentionally kept back that they might profit by his exertions." It was as a reward for his diligence that he was permitted to take the fruits of his recovery. The justice of this rule was strikingly illustrated by the facts in Hancock v. Wooten; there the beneficiary under the fraudulent assignment was actively defending the assignment and after the
FISHER V. BANK.
successful litigation in which the jury found the assignment fraudulent he sought to share in the assets thus brought within the jurisdiction of the court. As was said by the court referring to the defendant Wooten, "He and the plaintiff had been fighting at arm's length, each endeavoring to establish a priority over the other. The plaintiffs have been victorious and the deed having been declared fraudulent and void as to them their preference must be recognized and the claim of the losing party postponed." The difficulty with which the plaintiffs are met in bringing themselves within this principle is found in the fact that either of the actions brought on the 12th of October must necessarily have resulted in the avoidance of the deed of assignment. In no possible point of view could the deed have been valid as against the creditors of the defendant bank after the institution of the suits, or either of them, within the sixty days. The Code, Sec. 685, expressly declares: "Any conveyance of this property, whether absolutely or upon condition, shall be void and of no effect as to creditors of said corporation existing prior to or at the time of the execution of the said deed and as to torts committed by such corporation, its agents or employees prior to or at the execution of the said deed, provided said creditors or persons injured or their representatives shall commence proceeding or action to enforce their claims against said corporation within sixty days after the registration of said deed as required by law." This section of The Code immediately upon the commencement of either of the actions avoided the deed of assignment and there was no necessity for litigating the question as to the intent with which it was made. This court referring to the effect of Section 685 upon conveyances by corporations, in Langston v. Improvement Co., 120 N. C., 132, says: "This being so the real estate of defendant corporation remained liable to plaintiff's debt, notwithstanding the mortgage of defendant corporation to Moye.
FISHER v. BANK.
Section 685 of The Code, which section has been construed in Coal Co. v. Electric Light Co., 118 N. C., 232. But there is error in the judgment which declares a lien on the property of the corporation. Section 685 of The Code does not authorize the declaration of the lien, but only puts the mortgage out of the way of plaintiff's collecting his debt and leaves the property in the same condition so far as the debt is concerned as if no mortgage had been made." This court has decided in Bank v. Bank, 127 N. C., 432, that the deed of assignment made by the defendant bank is void as to creditors bringing their action within sixty days after registration and that no lien is created by the bringing of action. This would seem to be decisive of the plaintiff's contention and to fully sustain the judgment of the court below. Both suits are brought in behalf of the plaintiffs and all other creditors. It will be observed that Section 685 does not require that an action be brought for the purpose of setting aside or vacating the assignment, but that it becomes void and of no effect immediately upon the bringing of an action by the creditor to "enforce his claim." Hence it was unnecessary for the plaintiffs in their action to make any reference to or ask any judgment in respect to the deed of assignment. The finding of the jury in regard to the intent with which the deed was made was immaterial and did not in any respect affect the rights of the creditors. The plaintiffs, therefore, not having by their diligence removed any obstructions to legal remedies or brought into the common fund for distribution any property or assets, do not bring themselves within the principle of Hancock v. Wooten, and are not entitled to any lien or preference. His Honor properly adjudged that the deed was void as to the creditors. This left the fund in the hands of the receivers to be distributed under the direction of the court among the creditors. The question in respect to judg
HENDERSON v. TRACTION Co.
ment lien was passed upon and settled by this court in the case of Bank v. Bank, 127 N. C., 432. The judgment of the court below is Affirmed.
HENDERSON v. DURHAM TRACTION CO.
1. STREET RAILROADS-Negligence—Statutes-Suspension of Statutes. The failure of a street railway company to use fenders in front of its cars, if required by statute or ordinance, is evidence of negligence.
2. STREET RAILROADS-Statutes-Suspension of Statutes-Corporation Commission-Acts 1901, Ch. 743, Sec. 2.
A statute which requires all street railway companies to put fenders in front of cars and provides that the corporation commission may "make exemptions," does not authorize an exemption of all the street railway companies, as this amounts to a suspension of the statute.
ACTION by Talmage Henderson against the Durham Traction Company, heard by Judge W. R. Allen and a jury, at January Term, 1903, of the Superior Court of DURHAM County. From a judgment for the defendant, the plaintiffs appealed.
Boone, Bryant & Biggs, for the plaintiff.
CONNOR, J. This action was brought by the plaintiff, an infant suing by his next friend, for damages alleged to have been sustained by reason of personal injuries suffered by being struck by the defendant's street car in the city of Durham.
The complaint alleges that on or about the 30th day of
HENDERSON v. TRACTION Co.
July, 1902, the plaintiff was passing from his employer's place of business to the south side of Main street, where the defendant has a double track about five feet apart; that about 9 o'clock p. m. a car was going westward on the northern track and another car was going eastward on the southern track, and he came out of the drug store to cross the street just as the car going westward was passing the door, and stopped for it to go by, and this car kept him from seeing the eastbound car; that he was ignorant of the approach of that car, and as he stepped from the southern one of the double tracks he was struck by the eastbound car, knocked down upon the track, caught under the car and dragged the distance of twenty yards or more, and was seriously injured. The complaint alleges that the defendant was negligent in three respects:
1. That at the time of the approach of the car which injured the plaintiff, the motorman negligently and carelessly failed to sound the gong.
2. That at the time of the injury complained of, the defendant had negligently and carelessly failed to properly equip its car, which struck and injured the plaintiff, with approved safe guards and appliances then in general use, in that it did not have a "fender" in front of said car, and if said car had been properly equipped with a "fender” the injury would not have occurred.
3. That if the defendant's motorman had been keeping a proper lookout, as reasonable and ordinary care required him to do, he could have discovered the plaintiff in time to have given warning, or stopped the car in time to save him from injury.
The defendant in its answer denied each and every allegation charging negligence, and alleged that the plaintiff by his own carelessness and negligence contributed to the injury