was sent to the defendant of his overdrafts. It was usual to send notices. The checks were charged on the books of the bank to the defendant. No deposit was ever actually made by Cross to meet them." L. D. Stephenson, the defendant: "I received no notice of any overdraft. Mr. Cross employed me to get logs for his mill, and I had instructed him to place what he owed me to my credit in the bank, and also $700 for land and $1,000 for another tract of land, and I thought when I drew those drafts that he (Cross) had placed money to my credit. I was never notified of an overdraft. Bank was closed Saturday, March 26, 1888. The book-keeper was instructed to notify all persons who had overdrawn. I had dealt in same way with Mr. Cross to the amount of $5,000. I did not know of the insolvency of the bank or Cross, or of Cross' indebtedness to the bank." Upon the evidence of the defendant, his honor instructed the jury that the plaintiff was entitled to recover. Verdict and judgment as set forth in the record. The defendant excepted to the charge. From the judgment the defendant appealed.

The material part of defendant's answer is as follows: "(2) He admits giving checks on said bank for the amounts set out in the complaint, but denies that he owes anything on that account, and avers the facts connected therewith to be as follows: C. E. Cross, president of said bank, being indebted to this defendant, requested him to give checks on said bank to the amount of his claim, and that the bank would pay the same. This defendant had, prior to this, dealt in a similar way with C. E. Cross, president of said bank, to the amount of many hundred dollars, and the bank paid the checks of this defendant without his putting any money to his credit. (3) Not only the president, but the other officers, of said bank knew, when they paid the checks set out in the complaint, that the money was paid on account of the indebtedness of C. E. Cross, president of said bank, to this defendant, and was not intended to be charged to this defendant, the same being paid by said bank on the account of C. E. Cross, president of said bank, and intended to be a charge against him only. (4) The president of said bank was, at the time said checks were drawn and paid, indebted to this defendant to an amount much in excess of the checks drawn as above, which said bank agreed to pay, and is claimed as an offset to plaintiff's demand."

The court gave judgment as follows: "Hereupon it is adjudged that the plaintiff recover against the defendant the sum of two hundred and seventy-three dollars and forty-two cents, with interest on $273.42 thereof from the 13th day of March, 1888, until paid, together with costs and dis bursements.

The issue tendered by the defendant did not embrace the whole matter of fact at issue; that submitted by the court did, and was sufficient. In the absence of special authority for such purpose, neither its president nor its cashier, nor these officers acting conjointly, had authority or right to appropriate and devote any part of the funds of the bank, of which the plain

tiff is receiver, to the payment of such president's personal debt due to the defendant. Such authority ordinarily was beyond the scope of the purpose and duties of such officers. No doubt the directors-the governing authority of the bank-might allow them to exercise such power, or they might ratify such transaction, but it must in some way sufficiently appear that they did. Grant. Banks, § 143 et seq; Id. § 171 et seq. The defendant had no deposit in the bank, nor did it owe him anything, nor was it in any way bound to recognize and pay his checks or orders on it for money. It did, however, pay them to his use and benefit. He thus obtained money from it by the unauthorized and fraudulent acts of its officers. Cross had no right or authority to tell the defendant the bank would pay his checks. This the defendant ought to have known. It was his duty to himself and to the bank to see that such permission to draw upon it was authorized. It was his misfortune that he dealt with and confided in its faithless officer, and not with and in it. The mere fact that he had drawn checks that had been paid before, under like circumstances, was no excuse or justification for drawing those in question; certainly not in the absence of knowledge of such transactions on the part of the directors of the bank: If the latter connived at or authorized, by implication or otherwise, such payment of the checks of the defendant, he should have proven the fact. The checks were not properly “overdrafts,”—the defendant did not have any deposit or credit upon which to overdraw. He got and had benefit of the bank's money in a way not authorized or intended by it, and very certainly it can recover that money by proper action, as the present one is. Morse, Banks, § 360; Bolles, Banks, 358; Bank v. Byram, 39 Me. 489. Judgment affirmed.

ADAMS V. GUY et al.

(Supreme Court of North Carolina. March 3, 1890.)

Judgment of JUSTICE-LIMITATION OF ACTIONS.

Under Code N. C. § 153, subd. 1, which provides that an action on a judgment rendered by a justice of the peace must be brought within seven years next after the date thereof, else it will be barred, and section 839, which provides that a justice's judgment may be docketed in the office of the clerk of the superior court of the county where the judgment was rendered, and from the time of such docketing it "shall be a judgment of the superior court in all respects," a judgment rendered by a justice, and docketed as prescribed, is barred after seven years; it being a judgment of the superior court only for the purpose of creating a lien on the real estate of the debtor.

Appeal from superior court, Harnett county; R. F. ARMFIELD, Judge.

Motion by J. A. Adams for execution on judgment against William Guy and Isaac Guy. The motion was allowed, and defendants appeal.

T. R. Purnell, for appellants.

MERRIMON, C. J. The plaintiff obtained a judgment in the county of Harnett, in the court of a justice of the peace, against the defendants, on the 1st day of June, 1878, founded on a former similarjudgment,

for $46.04, with interest from the 19th of May, 1867, till paid, and for costs, $1.60 on which was a credit. This judgment was duly docketed in the office of the superior court clerk of that county on the 3d day of June, 1878. On the 1st day of April, 1886, the plaintiff moved before the clerk of said superior court for leave to issue execution upon the said judginent. The defendants opposed this motion upon the ground that the judgment was barred by the statute of limitations. Code, § 153, subd. 1. The clerk allowed the motion, and the defendants appealed to the judge in term-time. In term, the court held that the judgment was not barred by the statute mentioned, or at all, and allowed the motion; and the defendants, having excepted, appealed to this court.

The statute (Code, § 153, subd. 1) prescribes that "an action on a judgment rendered by a justice of the peace" must be brought within seven years next after "the date thereof," else the same will be barred. Hence the judgment of the plaintiff was barred by the statute at and before the time he made his motion for execution, unless the docketing of the same in the office of the clerk of the superior court had the effect to render it such a judgment of that court as could be barred only by the lapse of 10 years next after the rendition thereof. The statute (Code, § 839) provides that a judgment of a court of a justice of the peace may be filed and docketed, in the way prescribed, in the office of the clerk of the superior court of the county where the judgment was rendered, and that from the time of such docketing it "shall be a judgment of the superior court in all respects." The clause of the statute just quoted has been repeatedly interpreted by this court; and it has been held, uniformly, that the purpose of such docketing of the judgment of the court of a justice of the peace is to create a lien on real estate, and have execution to enforce the same, and that such judgment continues to be a judgment of the court of the justice of the peace for every other purpose and intent. It is held that a judgment so docketed is barred after the lapse of seven years from its rendition, and that the statute also bars a motion for execution upon the docketed judgment after the lapse of that time. This may be deemed as settled. Ledbetter v. Osborne, 66 N. C. 379; Hutchison v. Symons, 67 N. C. 156; Broyles v. Young, 81 N. C. 315; Morton v. Rippy, 84 N. C. 611; McDonald v. Dickson, 85 N. C. 248; Daniel v. Laughlin, 87 N. C. 433. So that the judgment of the plaintiff, and likewise his motion, were barred by the statute. There is therefore error. The order appealed from must be reversed, and the motion for execution denied. To that end let this opinion be certified to the superior court. It is so ordered.

MORISEY V. SWINSON. (Supreme Court of North Carolina. March 17, 1890.)

Application for rehearing. For former report, see ante, 754.

W. R. Allen, for plaintiff. Stevens, Faison & Kornegay, (H. L. Stevens, of counsel,) for defendant.

MERRIMON, C. J. This is an application to rehear the case of Morisey v. Swinson, 104 N. C. 555, ante, 754, (decided at the last term,) upon the ground that the court failed to advert to the third exception of the defendant therein to the report of the referee, which exception was in these words: "The referee errs in stopping the accounting for the rents and profits of the mortgage premises at 1884, when the plaintiff is still in possession of the mortgaged premises, cultivating the lands, and using the store-house for a guano house, and is in receipt of the rents and profits up to February term, 1889." It seems that this exception may have been overlooked. The record was voluminous, confused, and to some extent misleading. The plaintiff excepted to the report mentioned on the ground that rents were allowed to the defendant up to the time of the trial, and this may have led the court to lose sight of the defendant's exception to the contrary. The plaintiff now earnestly insists that rents were allowed to the defendant as claimed by him. It seems to us otherwise. This court, overruling the plaintiff's exception, decided that the defendant was entitled to rents for the time claimed by him. If the account did not embrace them for that time, it should have done so. As the matter is in some doubt, the judgment of this court should direct the court below to inquire how the fact is, and, if need be, direct a further account to be taken as to the rents, and correct the judgment so as to make it conform to the facts as upon inquiry they may appear to be. The case specified in the petition must be reheard and the judgment therein of this court modified in accordance with this opinion, and, as so modified, certified to the superior court, to the end that further steps may be taken there in the action according to law. It is so ordered.

WADE V. COUCH et al.

(Supreme Court of South Carolina. Jan. 24, 1890.)

Appeal from common pleas circuit court of Greenville county; FRAZER, Judge.

Action by Louisa Wade against B. L. Couch and others for partition of real estate. There was a decree for plaintiff, and defendants appealed. Plaintiff moved to dismiss the appeal.

Mr. Blythe, for appellants. Benet, McCullough & Parker, for respondent.

PER CURIAM. This is an appeal from a decree in partition proceedings. On the regular call of the case for hearing in the supreme court, the appellant not having filed his points and authorities, as required by rule 8 of the supreme court, the respondent's attorney moved to dismiss the appeal, as provided for by rule 11. The following are the rules referred to: "Rule 8. Three days previous to the commencement of the argument of any case, the counsel for the appellant shall deliver to the clerk of the court six copies of the case or brief, which shall be disposed of as follows: One copy to each of the judges, one for the clerk, one for the reporter, and one for the library of the supreme court. And at

Where no rate of interest is expressed in a
note, and the legal rate is 7 per cent., an adden-
dum placed on the note after its execution and
delivery, reciting that "the above note is to be
accounted for with interest at 8 per cent. per an-
num, and signed by the principal alone, though
placed "on the lower end of the note" and not in-
corporated in the body, constitutes such a mate-
rial alteration of the original note as will dis-
charge a surety not consenting thereto.-Sanders
v. Bagwell, (S. C.) 10 S. E. 946.

Amendment.

Appealable judgments and orders.

2. Where an action is defeated by the plea of
the statute of limitations, the refusal of the mo-
tion for a new trial, made on the ground of newly-
discovered evidence overcoming such plea, being
based on a matter of law, is appealable.-Boyd v.
Munro, (S. C.) 10 S. E. 963.

3. An appeal from an order sustaining an ex-
ception to a referee's report, and recommitting the
case to the referee to take further evidence, is
premature, and will be dismissed. - Wallace v.
Douglas, (N. C.) 10 S. E. 1043.

4. An appeal from a judgment sustaining a
demurrer to a counter-claim is premature; the
proper course being to have an exception noted in
the record, and appeal from the final judgment.
-Bazemore v. Bridgers, (N. C.) 10 S. È. 888.

5. An order of reference, directing executors
to account before a special master, and that other
persons be brought in as parties defendant to an
action to remove the executors, and substitute a
receiver, is appealable, though the master to whom
the matter was originally referred declines to act,
and fails to make a final report.-Sullivan v. Lati-
mer, (S. C.) 10 S. E. 604.

6. An order adjudging that a person has been
made a party to an action is appealable under
Code S. C. 11, providing that "an appeal may
be taken from an order or decree involving the

Of judgment, see Judgment, 28.

ANIMALS.

Adoption of stock law, see Fences.

mon pleas and general sessions;" and an appeal
from such order suspends further proceedings.-
-National Exch. Bank v. Stelling, (S. C.) 10 S. E.

766.

Jurisdictional amount.

7. To confer jurisdiction on the court of ap-
peals of West Virginia in a cause where the inter-

tice.

Code Ga. §§ 1449-1455, provide that the owner
of premises may impound stock doing damage un-
til the owner shall make satisfaction therefor; and
that, where there is a disagreement between the
parties as to the amount of damages sustained, the
aggrieved party may complain to a justice of the
peace, setting forth the amount claimed, and that
such justice shali issue a summons, as in other
suits. Held that, to give the justice jurisdiction,
the summons must show that the animals had been
impounded by plaintiff, and that there was a disa-
greement between plaintiff and defendant as to the
damages.-Delk v. Pickens, (Ga.) 10 S. E. 596.

pecuniary, it must not only appear that the appli-
cant is prejudiced by the decree of the court be-
low, but also that the amount in controversy ex-
ceeds the value of $100, exclusive of costs.-Mc-
Coy v. McCoy, (W. Va.) 10 S. E. 19.
Appeals from inferior courts.

8. Under Code Ga. § 4157, giving an appeal from
a judgment of a justice's court, where the amount
claimed is over $50, an appeal lies from a judgment
in an action before a justice for $50 for wages,
claimed to be past due, as such amount bears in-
terest from the time it becomes due.-Magarahan
V. Wright, (Ga.) 10 S. E. 584.

9. The refusal of a justice to grant an appeal
from his judgment in a proper case is sufficient
cause for failure to take the appeal within the
statutory time, and for the granting of such appeal
by the judge of the circuit court upon the petition
of the party aggrieved stating such refusal of the
justice.-Lowther v. Davis, (W. Va.) 10 S. E. 20.

Filing case.

II. REQUISITES.

10. An agreement that plaintiff shall "have thir-
ty days to file his case on appeal from adjournment
of court, and defendant thirty days thereafter,
entitles defendant to 30 days after service of ap-
pellant's case.-Mitchell v. Haggard, (N. C.) 10 S.

E. 856.

Transcript.

11. Under Code N. C. § 551, it is the duty of
the clerk, within 20 days after the case on appeal
is filed in his office, to send up a transcript to
this court, but not unless his fees are paid by the
appellant.-Bailey v. Brown, (N. C.) 10 S. E.

1054.