Trustees of the University of North Carolina v. Maultsby

PeaksoN, J.

The plaintiffs file a special replication by way of confession and avoidance. The new matter, is the fact that, since the decree in the former case, the Legislature has conferred upon the plaintiff's the right to all such property as that in question.

That the Legislature has power to transfer funds from one “ agency” to another, is settled by the opinion in the former ease. So, the nqw matter alleged in the replication, avoids the plea; for, in point of fact, this is not an attempt to try over again a matter that has been tried, but is the allegation of a title subsequently acquired.'- The former decree fixes the fact, that when the plaintiffs filed their first bill, they had no title; but, non constat that they had no title when.the-s®cond bill was filed. Although the former decree was- between the same parties in regard to the same subject matter, yet, the title now relied on is a different one, subsequently.- acquired; so-, a decree, by which the Court declares its- opinion to be that the plaintiff's now have title, is not inconsistent with, or repugnant to, the former decree, in which, the- Court declares itsmpinion to be, that the plaintiffs did not then- have title.

Upon- examination, it appears, that the plaintiffs did not have title when tlie bill was filed, because of the fact that the Act of Assembly under which they claim title, had not then gone into-operation. This isa fatal objection, and1 the bill would consequently have been dismissed, but without prejudice, so as to-allow the plaintiffs, upon payment of costs, to-file a third bill This objection, however, is removed by consent on-the part of the defendant’s counsel, who very properly concedes,that the only obje©t was to get an opinion of the-Court in-regard to the effect 'of the late Statute conferring- title- on» the plaintiffs, and waives the objection, upon condition- that the plaintiffs pay the- costs of this suit-;, which is agreed to.-

There will be a decree declaring; the opinion of the- Court to be, that the plaintiffs are- entitled! to the fund in the hands of the defendant,,and, the-plhin-tifts must pay the-eosts*..

Pee C'úRiAM.. Decree accordingly.