CLENDENIN v. TURNER.

action, as may be necessary to its completeness in all respects. But neither general principles of practice, nor the statute providing for amendments, authorize amendments that reach beyond these purposes. Especially, the Court has no authority to allow such amendments as to parties, or as to the cause of action, as make a new, or substantially a new action, unless by the consent of the parties. Indeed, this would not be to amend, in any proper sense, but to substitute a new action by order, for and in place of a pending one, which the Court cannot do. General principles of procedure, and, as well, the statutory regulations upon the subject, contemplate and intend that an action shall embrace but one litigation or matter, and only such parties, matters and things, as are necessary, germain, and incident to it, except that several causes of action may be united in the same action, as specially provided by statute. Any other rule or method would certainly be subversive of orderly and intelligent procedure, and lead to intolerable confusion, as well as injustice to litigants. Grant v. Burgwyn, 88 N. C., 95; Merrill v. Merrill, 92 N. C., 657; McNair v. Commissioners, 93 N. C., 364; Ely v. Early, 94 N. C., 1.

Now, in the case before us, the action was brought by the second guardian against the first one and the sureties to his guardian bond, to compel him to account, &c.

The plaintiff died pending the action. Afterwards, his administrator became a party plaintiff and filed his complaint, alleging a new, distinct and entirely different cause of action, that arose since the action began. To this there was a demurrer, which was sustained, and the Court allowed the plaintiff to make new parties plaintiff, who, putting aside the complaint and all prior pleadings, filed a new complaint, alleging a new, distinct and different cause of action, substituted for the original plaintiff and the original cause of action alleged.

HENDERSONVILLE v. PRICE.

This was undertaking substantially to make a new action out of a pending one.

The Court therefore properly decided that the plaintiffs could not maintain the present action. Judgment affirmed. No error. Affirmed.

THE TOWN OF HENDERSONVILLE v. WILLIAM PRICE et als.

Estoppel-Contract-Municipal Corporation-License.

1. Although a contract be invalid at the time of its execution, yet if the parties to it go on and treat it as valid, they will be estopped to deny its validity, provided they are sui juris, and that the invalidity of the contract does not arise from some illegality.

2. So where the defendant executed his bond to a municipal corporation for a license tax, instead of paying cash, he is estopped from setting up as a defence that the municipal authorities had no power to take such bond and issue the license, and consequently that the bond was void.

3. While the Board of Commissioners of a municipal corporation cannot issue a license to retail liquors for a longer period than one year, the time need not begin and terminate with the term of office of the Board which grants it, for they can grant a license which extends beyond their term of office, provided that it does not exceed one year, and does not begin to take effect after their term of office has expired.

(Com'rs v. Roby, 8 Ired., 255; Com'rs v. Kane, 2 Jones, 296; distinguished and approved).

This was a CIVIL ACTION, tried before Avery, Judge, at the Fall Term, 1885, of the Superior Court of HENDERSON county. A trial by jury was waived, and the Court found the facts as follows:

"On the 4th day of July, 1883, the mayor and commissioners of the town of Hendersonville, took from the defend

HENDERSONVILLE v. PRICE.

ants a bond for the payment of $400, for the privilege of retailing spirituous liquors in said town till July 1st, 1884, as follows:

"$400. On or before the first day of July, 1884, we, or either of us, promise to pay the Commissioners of the town of Hendersonville, four hundred dollars liquor tax, for value received of them.

Witness our hands and seals, this the 4th day of July, 1883. "The above bond is to be paid in installments of one hundred dollars each, at the end of every three months, to-wit: the 1st day of October, 1883, and every three months thereafter."

This bond purported to have been taken by virtue of chapter 203, Private Laws of 1847, as amended by chapter 35, laws of 1883, and especially $5 of the latter act.

This action was brought on the 5th of August, 1884, by the mayor and commissioners who succeeded the former board in May, 1884. The defendants admit the execution of the bond, and resist its payment only upon the ground that the mayor and commissioners had no power or authority to take said bond for taxes, and had no power under the said acts, or under any general law, to give to any one the power or privilege of retailing for any time after the first Monday in May, 1884, when a new board was elected and qualified.

It was admitted as a fact that a mayor and commissioners were elected and qualified in May, 1884. Before the bond sued on was executed, the mayor and commissioners had passed an ordinance in the following words :

"Be it ordained by the Commissioners of the town of Hendersonville, in the county of Henderson, and State of North Carolina, that the following taxes, special, poll and ad valorem, shall be levied and collected for the purposes of improvement of streets, defraying expenses of the town, &c., viz.:

HENDERSONVILLE v. PRICE.

"SECTION 3. On every retailer of spirituous, vinous or malt liquors, there shall be a special privilege tax of four hundred dollars per annum, to be paid in advance or secured by bond, approved by the commissioners.”

After the execution of the bond, and before the 1st day of January, 1884, the defendant Price made a payment of forty dollars on said bond. No part of the bond has ever been paid, except the said sum of forty dollars.

Upon the facts the Court held, that the plaintiff was not entitled to recover, and there was judgment accordingly. From this judgment the plaintiff appealed.

Mr. E. C. Smith, (Mr. Thos. J. Rickman also filed a brief,) for the plaintiff.

No counsel for the defendants.

DAVIS, J., (after stating the facts). The plaintiff is a body corporate, exercising its corporate powers through a mayor and board of commissioners. By the fifth section of its charter, it is provided among other things: "That in addition to the ad valorem tax on property and polls, the said Board of Commissioners shall have power to levy and collect the following special taxes for the privilege of carrying on the business or doing the acts herein after named, in said town, towit: (1.) On all licensed retailers of spirituous, vinous, malt or alcoholic liquors, not more than ten hundred dollars." By virtue of the power thus conferred, the commissioners passed the ordinance imposing a tax of $400 on retailers of spirituous liquors, as set out in the pleadings.

The special tax was "to be paid in advance, or secured by bond, approved by the Commissioners," and instead of paying it in advance, the defendant Price secured it by bond, the other defendants, and the intestate of the defendant M. S. Farmer, executing it under seal, as his sureties.

HENDERSONVILLE v. PRICE.

It is not denied that the plaintiff had the power to impose and collect the tax, but it is insisted for the defendant:

1. That the mayor and commissioners had no authority to take the bond for taxes.

2d. That they had no power or authority in July, 1883, to give any one license to retail for any time after May, 1884, when a new board was elected and qualified.

I. The answer to the first position is, that the defendant Price, instead of paying the tax in advance, executed his bond with sureties, approved by the board, obtained thereby a license, and enjoyed the benefit of the privilege to which the payment of the tax entitled him. He elected, for his own advantage and convenience, to give the bond instead of paying the tax in cash; it was executed under seal, and he and his sureties will not be heard to say that the commissioners had no power or authority to take such a bond. The consideration was not an illegal one, and they are estopped by its execution. "Though a contract be in fact wholly invalid when executed, still, (supposing it not to be prohibited by law as relating to some illegal transaction,) if it be acted upon afterward by the parties to it as valid, they will, if sui juris, be estopped thereafter to allege its invalidity." Bigelow on Estoppel, 575.

The commissioners were not prohibited by law from taking the bond, and, as against the defendants, its execution estops them from denying its validity. Ryan v. Martin, 91 N. C., 467, and cases there cited.

II. For the second position, the defendants rely on the authority of Commissioners of Wilmington v. Roby, 8 Ired., 255; and The Commissioners of Raleigh v. Kane, 2 Jones, 296.

These cases sustain the position, that the board of commissioners cannot issue license for more than one year, and that the tax therefor must be annual, but we do not understand, as the defendants insist, that the license must begin and terminate with the term of office of the board by which