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Notice of appeal.

12. Code Va. 1887, § 3457, requiring notice of in-
tention to appeal to be given to the opposite party,
does not apply to an appeal from a decree rendered
before that section took effect.-Blanton v. Carroll,
(Va.) 10 S. E. 329.

13. Acts S. C. 1878, (16 St. 698,) provides that in
every appeal to the supreme court from an order,
decree, or judgment, appellant shall give notice of
his intent to appeal within 10 days after written
notice that such order, etc., had been granted or
rendered at chambers, or, if granted or rendered
during term-time, within 10 days after the rising of
the court. Code S. C. 1882, § 345, provides for the
same notice of appeal from any matter not tried
before a jury. In an action tried at regular term,
verdict was given during term-time but judgment
was not entered during term-time, or at chambers.
Held, that a notice of appeal within 10 days after
judgment was entered was sufficient, though it
was more than 10 days after the rising of the court.
-Molair v. Port Royal & A. Ry. Co., (S. C.) 10 S.

E. 243.

III. PRACTICE.

Filing papers-Dismissal.

14. Where a transcript is not sent up in time by
reason of the appellant's failure, when notified, to
pay costs of the transcript, the appellee may move
to docket and dismiss the appeal. Bailey v.
Brown, (N. C.) 10 S. E. 1054.

15. If an appeal is not docketed before the call
of that district at next term of the supreme court
of North Carolina is concluded, the appellee, upon
exhibiting the certificate of the clerk, as required
by rule 17, may docket and have the appeal dis-
missed.-Bailey v. Brown, (N. C.) 10 S. E. 1054.*
Rose v. Shaw, Id. 1055.

Assignment of errors.

16. Exception to the form of a judgment, with-
out specifying alleged errors, is too general.
Warlick v. Lowman, (N. C.) 10 S. E. 474.

17. A general exception that the court erred in
admitting evidence and in its charge is too indefi-
nite to be considered.-Burwell v. Sneed, (N. C.)

10 S. E. 152.

18. An assignment of error that "defendant ex-
cepted to the charge, as given upon the first and
second issues," is too general.-Taylor v. Albe-
marle Steam Navigation Co., (N. C.) 10 S. E. 897.
19. An assignment of error that the instructions
did not fully cover the case made by the declara-
tion and proof is too general for consideration.
Whelan v. Georgia M. & G. R. Co., (Ga.) 10 S. E.
1091.

20. Though Code N. C. § 412, subd. 3, provides
that if there is error in the instructions of the trial
judge it shall be deemed excepted to without the
filing of any formal objections, the supreme court
will not consider a general exception to "the charge
as given," without a specific assignment of error.
-McKinnon v. Morrison, (N. C.) 10 S. E. 513;
Carlton v Wilmington & W. R. Co., Id. 516; Lind-
sey v. Sanderlin, Id. 518.

Record.

21. A bill of exceptions, in order to be properly
before the supreme court, must be certified to be
true. Where the presiding judge certifies that the
bill of exceptions, "as corrected by notes attached
and signed by me, is true," etc., and after the cer-
tificate attaches a paper signed by him, containing
several notes materially altering the statements
contained in such bill of exceptions, the writ of er-
ror will be dismissed.-Masland v. Kemp, (Ga.) 10
S. E. 124.

22. Where, after the appellee has duly objected
to the appellant's case on appeal, there has been
an unexplained delay of seven months by appel-
lant in applying to the trial judge for a settlement
of the case, and the judge is unable to distinctly
remember what took place at the trial, the su-
preme court will take the appellee's case as the
case on appeal; Code N. C. $550, providing that,
where the appellee has duly filed objections to the
appellant's case, the appellant shall "immedi-
ately" request the trial judge to fix a time for set-

tling the case. -Simmons v. Andrews, (N. C.). 10
S. E. 1052.

23. If the statement of the case for appeal, as
settled by the trial judge, shows that he is not sure
his recollection of the events of the trial, which
of its correctness, owing to the indistinctness of
occurred six months before signing the case, the
record will be remanded that he may settle it cor-
rectly, after consulting his notes, if any still exist,
and conferring with the clerk, and counsel who
tried the action, to remove his doubts.-Simmons
V. Andrews, (N. C.) 10 S. E. 170.

24. The fact that counsel for appellant supposed
he could not file the "return "with the clerk of the
supreme court until the circuit judge had settled
the "case" will not excuse a failure to file the "re-
turn" within the time required by Supreme Court
S. C. rule 11.—Ihley v. Thompson, (S. C.) 10 S. E.
550.

25. A quantity of written matter, containing the
declaration in an action, copies of certain interrog-
atories, and a stenographic report of questions
and answers, followed by a certificate of the judge
of the court below that "this brief is approved, as
true and correct," is not such a brief of evidence
as the law requires on appeal, and the supreme
court will not consider it.-Brown v. Moore, (Ga.)
10 S. E. 277.

ative and responsive dialogue between counsel and
26. A report of the trial, consisting of interrog.
witnesses concerning the facts, interlarded with
remarks by court and counsel, is not a brief of ev-
idence; and a decision holding it to be, and approv-
be reversed.-Mahaffy v. Hambrick, (Ga.) 10 S. E.
ing it as, a brief, will, on direct exception thereto,

274.

27. Where there is in the record what purports
to be a brief of the evidence, but it is not signed by
all the counsel, nor approved and ordered filed by
the court, the supreme court will not look into such
evidence, to ascertain whether the verdict is sup-
ported by it or not.--Phillips v. Taber, (Ga.) 10 S.
E. 270.

28. Acts N. C. 1889, c. 161, extending the time
in which a case on appeal can be served, even though
restoring the rights an appellant had lost by his
delay, will not be construed to cut off the rights of
appellee, who, relying on appellant's case not hav-
ing been served in time, had served no counter-
case, and appellee may file his exceptions to ap-
pellant's case nunc pro tunc.-Walker v. Scott,
(N. C.) 10 S. E. 523.

29. Where appellant's affidavits show that the
transcript of the record was mailed in ample time
to have reached the office of the clerk of the su-
preme court, and to have been docketed before the
cases from appellant's district were called for ar-
gument, a motion to dismiss on the ground that
the case was not docketed before the call of the
district to which it belonged will be denied.-Walk-
er v. Scott, (N. C.) 10 S. E. 523.

30. The fact that appellant thought that during
the pendency of a motion made by him at circuit
to vacate the judgment he could not proceed with
an appeal theretofore taken will not excuse his
failure to file the return within 40 days, as required
by Rule of Court S. C. 1.-Calvo v. Railroad Co.,
(Š. C.) 10 S. E. 389.

31. Where the record shows that a demurrer
was taken to plaintiff's evidence and passed on by
the court, the fact that the demurrer does not ap-
pear in the record is not cause for reversal where
all the evidence is contained in the bill of excep-
tions.-Taylor v. Baltimore & O. R. Co., (W. Va.)
10 S. E. 29.

32. Upon an appeal from a judgment of the su-
perior court, appellant filed, as a transcript of the
record, a warrant issued by a justice of the peace
against the appellant, and a detached writing pur-
porting to be the case settled on appeal by the
judge of the superior court. Held, that such pa-
pers do not embrace the essential substance of the
record, as it must appear from the transcript that
a court was duly held by a judge, and that it had
jurisdiction in some proper way; and, it appearing
from the case settled that there is no merit in the
appeal, it will be dismissed.-State v. Preston, (N.
C.) 10 S. E. 84, Id. 85.

33. A petition for certiorari, not embodied in
the bill of exceptions nor certified or verified by
the judge who refused to sanction it, forms no part
of the record on a writ of error, and will not be
considered by the supreme court, though it has
been certified by the clerk of the lower court.-
Flemming v. City of Bainbridge, (Ga.) 10 S. E. 1098.

Rehearing.

34. On rehearing the court will not reverse its
former decision on the same authorities and argu-
ments as induced such decision.-Gay v. Grant,
(N. C.) 10 S. E. 891.

35. Where a case is imperfectly presented be-
fore the supreme court, it will be continued for
reargument at the next term.-Lenoir v. Valley
River Min. Co., (N. C.) 10 S. E. 525.

36. A petition for rehearing based on the affi-
davit of one who has testified and been cross-ex-
amined in regard to the transaction referred to
therein is properly dismissed.-Diffendal v. Vir-
ginia M. Ry. Co., (Va.) 10 S. E. 536.

*

37. Code N. C. § 968, providing that the clerk of
the supreme court should, at the end of the term,
send to the clerks of the superior courts certificates
of decisions filed in cases from those courts, was
amended by Acts 1887, c. 41, so as to require the
clerk to transmit such decisions "on the first Mon-
day in each month * * which have been on
file ten days." Held, that the amendment also
amended section 966, providing that a petition
for rehearing may be filed during the vacation suc-
ceeding the term of the court at which the judg-
ment was rendered, or within 20 days after the
commencement of the succeeding term, and peti-
tions may be filed in term-time, after the time
when the certificate is required by law to be sent
to the superior court.-Emery v. Raleigh & G. R.
Co., (N. Č.) 10 S. E. 141.

In general.

IV. REVIEW.

38. A consent order cannot be attacked on ap-
peal. Varn v. Varn, (S. C.) 10 S. E. 829.

39. Where a case is decided upon a demurrer to
evidence, the judgment will be reviewed by the
appellate court upon such demurrer to evidence,
though there was no motion made in the trial court
for a new trial, unless the ground for a new trial
is excessive damages. - Proudfoot v. Clevenger,
(W. Va.) 10 S. E. 394.

40. Where no exception is taken to a judgment
awarding 20 per cent. interest per annum, what
may be said about the illegal interest on the mo-
tion for a new trial cannot be considered on appeal.
-Baker v. Moor, (Ga.) 10 S. E. 737.

41. Where the general grant of a new trial,
though from a third finding for the same party,
is warranted on the ground that the verdict is con-
trary to evidence, other grounds not controlling as
to the merits of the case may be left open for re-
examination, should they arise again, when the
new trial is had.-Jarrell v. King, (Ga.) 10 S. E. 627.
42. In an action for rent, an exception to the
refusal of a motion for a new trial on the ground
that plaintiff refused to remit from the verdict
the amount of rent which it is alleged plaintiff
received from one who rented the premises for the
remainder of defendant's term after defendant
had abandoned them, raises no question of law
for the supreme court, when the question of fact
has been properly submitted to the jury.-Can-
trell v. Fowler, (S. C.) 10 S. E. 934.

Objections not raised below.

43. Under a general assignment that the ver-
dict is contrary to law, the objection that munici-
pal corporations are liable for injuries caused by
defective streets in certain cases only, will not be
considered, if it is not made at the trial.-City of
Griffin v. Johnson, (Ga.) 10 S. E. 719.

44. Grounds of a motion for a new trial, based
on the admission of testimony against objection,
will not be considered, where they do not allege
that the objection was made at the trial, or what
the objection was, if made at that time.-Findley
v. Johnson, (Ga.) 10 S. E. 594.

45. Objection to the verdict as to the time from
which interest ought to have been computed is not
available when the point was not made in the court
below, and where the evidence, as brought to the
supreme court, is not full enough to enable it to as-
certain the correct time.-Brower v. East Rome
Town Co., (Ga.) 10 S. E. 629.
Certificate of trial court.

46. A ground for reversal that is not certified
by the lower court will not be considered by the
supreme court.-Findley v. Johnson, (Ga.) 10 S. E.

594.

Discretion of trial court.

47. Where the record shows a bill to enjoin de-
fendant from ditching a swamp above a certain
spring, to which plaintiff had purchased the right
to dig a mill-race, supported by affidavits that the
water ran through the swamp, but opposed by af-
fidavits that no stream flowed through the swamp,
an appellate court cannot reverse for an abuse of
discretion in refusing the injunction.-Warnack v.
Brownlee, (Ga.) 10 S. E. 738.
Presumptions.

48. Where a jury renders two verdicts, one of
them incorrect, the other correct, the presumption
is that the latter was substituted by the jury for
the former.-Smith v. Camp, (Ga.) 10 S. E. 539.
Rulings on evidence.

49. The admissibility of evidence will not be
considered where the objections to it are not
shown.-City of Cartersville v. Maguire, (Ga.) 10
S. E. 603.

Sufficiency of evidence.

50. Where there is some evidence to support the
verdict, the trial judge's refusal to grant a new
trial will not be disturbed on appeal.-Harvey v.
Edwards, (Ga.) 10 S. E. 1014.

51. Where the evidence adduced to establish an
alleged verbal contract is conflicting, the decision
of the trial court will not be disturbed on appeal.
Olliver v. Duval, (S. C.) 10 S. E. 1070.

52. Where it is exclusively for a jury to deter-
mine whether any, and, if so, how much, of a coun-
ter-claim has been proven, the judgment will not
be disturbed on the ground that the verdict for
plaintiff exceeds the amount due him.-Chapman
v. Chapman, (S. C.) 10 S. E. 106.

53. Where the decree sought to be reversed is
based on depositions which are conflicting, and of
such doubtful and unsatisfactory character that
different judges might reasonably disagree as to
the facts proved thereby, or the proper conclusions
to be deduced therefrom, the appellate court will
decline to reverse the finding or decree of the
chancellor, although the testimony may be such
that the appellate court might have pronounced a
different decree, if it had acted on the cause in the
first instance.-Reger v. O'Neal, (W. Va.) 10 S. E.
375.

Matters not in record.

54. An exception to the refusal of the court to
admit a letter which does not appear in the rec-
ord, will be overruled.-Taylor v. Albemarle
Steam Navigation Co., (N. C.) 10 S. E. 897.

55. In an attachment suit in equity, in which
defendant's trustee for benefit of creditors filed a
petition alleging that he was entitled to whatever
was due to defendant from the garnishee, a decree
rendered after trial of the issue thus presented,
dismissing the petition because the trustee had no
title to, lien on, or interest in the funds, debts,
and effects attached in the cause, will not be dis-
turbed on appeal, when there is no bill of excep-
tions, no certificate of evidence, no authenticated
copy of the trustee's appointment, and no intima-
tion of what documents were read or rejected; but
it appears from the authentication that sundry
depositions were inserted in the record after the
decree was rendered, and the decree fails to allude
to them, and states that "the evidence was heard."
-Joslyn v. State Bank, (Va.) 10 S. E. 166.

Harmless error.

56. Error in the admission of evidence bearing
on a certain issue is not prejudicial to the party in
whose favor the jury finds on that issue.-Vickers
v. Leigh, (N. C.) 10 S. E. 308.

67. An appeal dismissed for want of prosecution,
under Supreme Court S. C. rule 11, will not be re-
instated on the ground that appellants' attorney
"truly believed" that the return was filed in the
clerk's office within the required time.-Harman
V. Town Council of Lexington, (S. C.) 10 S. E. 552.
Affirmance.

57. A ruling by a referee as to the method of
determining the deduction from the contract price
of defective machinery is immaterial, where he
finds that no proof was furnished by which to es-
timate the difference in value.-Nissen v. Gennes--State v.
see Gold Min. Co., (N. C.) 10 S. E. 512.

58. Plaintiff, a fireman on defendant's passen-
ger train, was injured by jumping from his engine
as it ran from the main line, over a misplaced
switch. The misplacement of the switch was not
satisfactorily explained, and the jury found for
plaintiff, who was shown to be free from fault.
Held that, substantial justice having been done, the
verdict will not be disturbed, though technical er-
rors may have been committed on the trial.-West-
ern & A. R. Co. v. Lewis, (Ga.) 10 S. E. 736.

59. The improper rejection of evidence is not
cause for the reversal of a judgment refusing a
new trial, where it is not certain that the item
which such evidence tends to prove was taken into
account by the jury in arriving at their verdict, and

it is clear that outside of such item there was
ground for finding a verdict for at least the amount
found by the jury.-Bartlett v. Patton, (W. Va.) 10

S. E. 21.

60. Where an action has been proceeded with
as if issue had been joined, when in fact it had
not, it is not a proper case for the application of
the rule that when, on a survey of the whole rec-
ord, the judgment appears to be substantially right,
it will be affirmed, notwithstanding an error may
have been committed which has not operated to
the prejudice of appellant.-Petty v. Frick Co.,
(Va.) 10 S. E. 886.

Dismissal.

V. DECISION.

61. An appeal will be dismissed if 15 copies of
the record are not printed, as is required by rule
2, § 11, subsecs. 6, 7, of the supreme court, except
in criminal cases and appeals in forma pauperis.
-Horton v. Green, (N. C.) 10 S. E. 470.

62. A motion to dismiss an appeal for appellant's
failure to comply with the rule of court requiring
him to serve respondent, within 20 days after the
case has been settled, with three printed copies of
the case or brief as prepared for argument, will be
denied, for respondent's failure to give appellant
at least 4 days' notice of the motion.-Hargrove v.
Washington, (S. C.) 10 S. E. 616.

63. An appeal by defendant from a judgment of
foreclosure will not be dismissed on the ground
that no bond was given under Code Civil Proc. S.
C. § 346, providing that, pending an appeal from a
judgment directing the payment of money, plain-
tiff shall not be allowed to proceed with a sale of
defendant's property, if the defendant enter into
an undertaking to pay the judgment.-McLemore
v. Powell, (S. C.) 10 S. E. 550.

64. If, after the death of the appellant and the
discharge of his executrix, the plaintiff will not
accept a continuance to have the appellant's estate
represented, and the representative made a party,
the court may dismiss the case on motion of coun-
sel representing the surety on appeal.-Planters' &
Miners' Bank v. Hudgins, (Ga.) 10 S. E. 501.

68. Where there is no case on appeal, and no
assignment of error, a judgment will be affirmed.
Henry, (N. Č.) 10 S. E. 488.

69. Where there is no case on appeal, no assign-
ment of error, and, on inspection of the record, no
Nichols, (N. C.) 10 S. E. 317.
error appears, judgment will be affirmed.-State v.

the record appears regular, the judgment will be
70. Where, on appeal, no error is assigned, and
affirmed.-State v. Bagby, (N. C.) 10 S. E. 913.
Reversal.

71. A judgment denying a new trial will not be
reversed by the supreme court as a consequence of
reversing a previous decision erroneously holding
that a given document filed with the motion for a
new trial was a brief of the evidence.-Mahaffy v.
Hambrick, (Ga.) 10 S. E. 274.
Mandate and proceedings below.

72. When counsel misunderstand the terms of a
written agreement as to time of settling case on ap
peal, and there is reasonable ground for being mis-
led thereby, and the case as served by appellant is
lost, the case will be remanded, with leave to par-
ties to serve case and counter-case de novo, and, up-
on disagreement, case on appeal to be settled by
the judge nunc pro tunc.-Mitchell v. Haggard,
(N. C.) 10 S. E. 856.

73. When a case is reversed, and remanded to
the circuit court, because it does not appear affirm-
atively that the order of publication in the cause
had been posted as required by law, the defect may
be cured, after such remand, by the filing of an af-
fidavit of the party who posted said order.-Mc-
Coy v. McCoy, (W. Va.) 10 S. E. 19.

74. Where a question of law or fact is once defi-
nitely settled and determined by a decree of the
appellate court, and the cause is remanded for fur-
ther proceedings, a party to said suit cannot by sub-
sequent pleadings call in question the conclusive-
Seabright v. Seabright, (W. Va.) 10 S. E. 265.
ness of the questions determined by said decree.-

75. Laws N. C. 1887, c. 192, § 1, provides that
the stay of execution provided for in title 13,
C. 10, of the Code, shall not vacate the judg
ment appealed from, but the lien of the judg-
ment shall remain unimpaired, until the judg-
ment appealed from is reversed or modified by the
supreme court. The second section provides that
execution shall not issue pending the appeal. The
third section provides that at the first term of
the superior court after the certificate of the su-
preme court is received, if the judgment is af-
firmed, the superior court shall direct execution to
proceed, and if ne judgment is modified shall di-
rect its modification and performance, and if a
Held, that the final judgment, as affected by the
new trial is ordered the cause shall stand for trial.
orders and judgment of the supreme court, is in
force the judgment, or in the action, should be
the superior court, and all proper motions to en-
made in the superior court, except motions af-
fecting the appeal, and action of the supreme court.

VI. LIABILITY ON APPEAL-BOND.

65. Rule 2 of supreme court N. C. § 5, which-Stephens v. Koonce, (N. C.) 10 S. Ē. 996.
provides that "cases not prosecuted for two terms
shall, when reached in order, after the second
term, be dismissed at the cost of the appellant, un-
less the same for sufficient cause shall be contin-
ued, " is not directory merely, but will be strictly
enforced.-Young v. Young, (N. C.) 10 S. E. 481.
Reinstatement.

66. When an appeal is dismissed for failure to
comply with a rule of court requiring a specified
number of printed copies of the statement of case
on appeal to be filed, a reinstatement of the case
on motion is not a matter of course, but will only be
allowed on good cause shown. Horton v. Green,
104 N. C. 400, 10 S. E. 470, cited and approved.-
Whitehurst v. Pettipher, (N. C.) 10 S. E. 857.

76. The condemnation money for which the
surety on appeal is liable, is that which is recov
ered in the case in which the appeal was entered.
If, by reason of an injunction, no trial of the case is
or can be had as to the appellant, the surety is not
liable for a breach of his bond.-Planters' & Min-
ers' Bank v. Hudgins, (Ga.) 10 S. E. 501.

APPEARANCE.
Effect-Waiver of defects.

1. An appearance in a motion to quash an at-
tachment because of irregular execution of pro

cess is not an appearance to the action whereby
alleged defects are waived.-Petty v. Frick Co.,
(Va.) 10 S. E. 886.

his interest in the land.-De Vaughn v. McLeroy,
(Ga.) 10 S. E. 211.

Argument of Counsel.

Arraignment.

2. Under Code Ga. § 3335, declaring that ap-
pearance and pleading shall be a waiver of all ir-
regularities of the process, or of the absence of See Trial, 6-8.
process and the service thereof, appearance and
pleading waive the irregularities that the pro-
ceedings are addressed to the judge, and not to the
court, as required by Act Ga. 1887, p. 64, "to pro- See Criminal Law, 8.
vide a uniform mode of procedure in civil cases,
and that instead of process on a bill for injunction
being annexed to the petition as at law, under the
requirement of the statute, it prays for a subpoena.
-Regenstein v. Tyler, (Ga.) 10 S. E. 719.

ARBITRATION AND AWARD.
See, also, Reference.
Submission.

* *

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1. Where the submission recites that whereas,
matters have arisen between the parties, "touching
the amounts and sums due between them on ac-
count of the rental" of certain premises, "which
said matters they are unable to settle and decide
between themselves, *
now, therefore, all
matters in dispute are hereby referred, " etc., an
item which was the result of a settlement of the
previous year, and which was necessary to consider
in determining the "amounts and sums due be-
tween them," was properly taken into account by
the arbitrators.-Bryan v. Jeffreys, (N. C.) 10 S. E.

167.

Umpire.

2. Though the umpire cannot act before a dis
agreement occurs, his joining in the award does
not vitiate it.-Bryan v. Jeffreys, (N. C.) 10 S. E.

167.

ASSAULT AND BATTERY.
Assault with intent to kill, see Homicide, 13-16.
What constitutes.

1. In a prosecution for assault, defendant tes-
tified, in his own behalf, that the prosecutor came
to his stable, and demanded a settlement; that, at
his suggestion, they went into defendant's house,
but failed to settle. Defendant told him to get out
of the house. The prosecutor replied that he
would when he got ready, saying: "Put me out,
if you are man enough to do it." Defendant went
and got his gun, came back, and at once, without
saying anything, struck the prosecutor with it.
There was no evidence to show that the prosecut-
or had a weapon of any kind or that he offered vio-
lence to defendant, except that defendant had
heard that the prosecutor had said theretofore
that if he did not settle with him he would have
defendant's blood. Held, that the court properly
charged the jury that, if they believed defendant's
story, they should find him guilty.-State v. Leg-
gett, (N. C.) 10-S. E. 464.

Shooting at another.

2. To shoot at another without legal excuse,
with a pistol loaded with powder only, within the
distance to which the pistol will carry when so
shot, will constitute the statutory offense of shoot-
3. Where the submission is under seal, the aping at another; but what is such distance is mat-
pointment of the umpire need not be under seal,
ter of fact for determination by the jury, and not
unless it is required to be so by the terms of the
a question of law to be decided by the court.-Clark
submission.-Bryan v. Jeffreys, (N. C.) 10 S. E.
v. State, (Ga.) 10 S. E. 1094.

167.

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Jurisdiction-"Deadly weapon."

3. A club is a deadly weapon; and an indict-
ment for an assault with a "deadly weapon, to-
wit, a club, " gives the superior court jurisdiction.
State v. Phillips, (N. C.) 10 S. E. 463.

Proof.

4. Under an indictment for an assault with a
"deadly weapon, to-wit, a club," proof that the
person assaulted sustained serious injuries author-
izes a conviction, though there is no proof of an as-
sault with a club.-State v. Phillips, (N. C.) 10 S.
E. 463.

Assignment.

See Assignment for Benefit of Creditors.
Of errors, see Appeal, 16-20.

mortgages, see Mortgages, 8.
policy, see Insurance, 2, 3.

ASSIGNMENT FOR BENEFIT
OF CREDITORS.

See, also, Bankruptcy.
Schedule of assets.

An assignment for the benefit of creditors
will be void unless the schedule of assets and that
of creditors are verified by separate affidavits.—
Burns v. Beck, (Ga.) 10 S. E. 121.

Associations.

8. A submission to arbitration provided for the
ascertainment of certain sums of money, alleged to
be due on account of illegal loans by a guardian of
her wards' money, and for the disposal of the wards' See Corporations; Religious Societies.

interests as remainder-men in certain land. The
award directed repayment of the money loaned,
and directed a conveyance of certain remainder-
men's interest, but was silent as to the remainders
of the wards in the land. Held, that the subse-
quent collection of the money so awarded, by one of
the wards, was not such a ratification of that part of
the award relating to the interest of the remainder-
men as would preclude such ward from suing for

When lies.

ASSUMPSIT.

1. Assumpsit will lie against a town for the
recovery of money due the plaintiff for work done
under contract for the town, notwithstanding void
certificates have been issued and accepted for such

work.-Johnson v. Town of Alderson, (W. Va.) 10 | Vacating.
S. E. 815.

2. A declaration for money had and received,
which alleges that plaintiff placed money in de-
fendant's hands to be applied to claims against
plaintiff held by defendant for collection; that, on
being informed by defendant that the creditors
would not accept his terms of settlement, plain-
tiff directed defendant to apply the money to cer-
tain debts pro rata, if he (defendant) would release
a lien on a certain lot; that defendant had failed
to so apply the money; and that plaintiff had satis-
fied the debts otherwise,-states a cause of action.
-Minor v. Ozier, (Ga.) 10 S. E. 1088.

3. Where a father divided his land by lot among
his children, placing a value upon the various
tracts, and stating that those who got the most
valuable lands should pay to the others enough to
equalize the values, and made deeds of the land to
each, such excess cannot be recovered from one
who was a minor when the division took place, and
who does not appear to have known anything about
it, or to have made any promise, expressly or by
implication, to pay the same.-Harris v. Holmes,
(Ga.) 10 S. E. 363.
Pleading.

4. Where a complaint alleges that defendant is
indebted to plaintiff $1,440 "for services performed
as clerk in defendant's store at $20 a month, " giv-
ing the time of employment, plaintiff may prove
services either on special contract or the quantum
meruit, within Code N. C. § 260, providing that
pleadings shall be liberally construed, with a view
to substantial justice.-Stokes v. Taylor, (N. C.)
10 S. E. 566.

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4. Possession by the defendant in attachment
of the personalty attached, on the day of the levy,
and for some time previously, he using the same
apparently as his own, makes a prima facie case
against the claimants; and where they show only
the admissions of defendant in favor of their title,
and a surrender of possession to them by him, a
few hours before the levy, a verdict finding the
property subject is not unwarranted.-Harvey v.
Jewell, (Ga.) 10 S. E. 631.

5. Where the court charged properly on the
theory urged by the claimants, that the property
was purchased for them, and that it never belonged
to defendant in attachment, it was not error, as
against them, to charge also touching a sale by him
to them. although there was no evidence of any
such sale, except that he delivered them posses-
sion.-Harvey v. Jewell, (Ga.) 10 S. E. 631.

6. Code Va. 1887, § 2979, provides that, when
an attachment "is returned executed, if the de-
fendant has not been served with a copy of the
attachment, or with process in the suit wherein
the attachment issued, an order of publication
shall be made against him." Section 3231 pro-
vides that, in addition to the publication in a
newspaper, the order shall be posted by the clerk
at the front door of the court-house on the first
day of the next court after it is entered. Held,
that where the publication was made before the
return, and the order was not posted, the attach-
ment was properly abated.-Petty v. Frick Co.,
(Va.) 10 S. E. 886.

7. Code S. C. § 250, provides that it shall be
the duty of plaintiff procuring an attachment,
"within ten days after the issuing thereof,
to cause the affidavits on which the same was
granted to be filed in the office of the clerk
of the court of common pleas or with the trial
justice in which or before whom the case is to be
tried." Rule 69 of the circuit court provides that,
if this is not done, defendant may move to vacate
the attachment, characterizing it as a penalty.
Held, that the failure to file such affidavits with-
in 10 days after the warrant was issued entitled
defendant to an order vacating the attachment,
and the filing of copies of the affidavits was not
sufficient. -Ketchin v. Landecker, (S. C.) 10 S.
E. 936.

ATTORNEY AND CLIENT.
Trust relation.

1. An attorney cannot be allowed to consent
on behalf of infants to a decree when he is also
counsel for parties whose interests are adverse to
such infants.-Walker v. Grayson, (Va.) 10 S. E. 51.
Accounting for collections.

of plaintiff's intestate at judicial sale, and had ex-
2. Defendant had purchased certain property
ecuted purchase-money bonds to him, as receiver.
It appeared that she had assigned to him, as
her attorney, certain claims for collection, the pro-
ceeds of which she authorized him to apply to the
payment of the bonds. Intestate had charged him-
self with the amount of some of these claims in
a statement made to defeudant, indicating, by oth-
er terms, that it was made as her attorney, and
that the proceeds remained subject to her control.
From a letter written by intestate, it appeared that
but it appeared that he had simply taken a third
he had "arranged" for the payment of the claims,
person's individual bonds therefor. There was no
proof that he had charged himself with the same on
his receiver's account, or credited defendant there-
with on the bonds. Held that, if intestate had col-
lected such debts, he had held the proceeds in his
capacity of attorney, and defendant could not com-
plain of a failure to credit them on her purchase-
money bonds.-Paxton v. Steele's Adm'r, (Va.) 10

S. E. 1.

Disbarment.

3. The circuit court may, by summary proceed-
ings, according to the common law, strike from
its roll the name of an attorney who is guilty of
writing and publishing in a newspaper a false and
libelous charge against the judge of such court, in
respect to his official conduct, and the disclaimer
by the attorney of intentional wrong or disrespect
to the judge or court will not excuse him, when
the contrary appears upon a fair interpretation of
the language employed.-State v. McClaugherty,
(W. Va.) 10 S. E. 407.*

4. Circuit courts have jurisdiction and power,
upon their own motion, without formal complaint
or petition, in a proper case, to strike the name of
an attorney from the roll, provided he had reason-
able notice, and an opportunity to be heard.-State
v. McClaugherty, (W. Va.) 10 S. E. 407.*

Award.

See Arbitration and Award, 5–8.

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