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.
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.)
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.
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,
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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
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.*
See Arbitration and Award, 5–8.
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