9.

Marked line trees and corners not called for may control an obvious mistake in regard to course, but distance must be run unless controlled by a natural boundary. Ibid.

10. The terms of a written instrument cannot be varied by parol evidence; the only exception is made in questions of boundary where there being no natural boundary called for, parol evidence corroborated by natural evidence of trees marked at the time, although not called for, is allowed to correct or explain a mistake in the courses of a grant. Ibid.

11. Possession of land retained by a grantor not indebted, is evidence either that he did not execute the alleged deed inconsistent with such possession, or that if he did, it was upon a secret trust for himself.

Yates v. Yates, 142.

12. When the fact of possession of land is competent evidence, any acts or declarations of the possessor are also competent as characterizing his possession. Ibid.

13. In an action for the recovery of real estate, where the plaintiff claims under a purchase at execution sale, evidence that a levy was made by the Sheriff under a fi. fa. after its return day, is competent. Maynard v. Moore, 158.

14. In an action to recover real estate, where the defendant sets up legal defences and also an equitable counter-claim, it is proper to postpone the consideration of the latter until the former a.e disposed of Ibid.

15. If, in an action for the recovery of real estate in which a third person claiming as landlord of the defendant has been made a party defendant, judgment is taken against the tenant defendant and he is evicted, he is entitled to be restored to possession until the determination of the controversy between the plaintiff and the interpleading defendant. Rollins v. Bishop, 268.

See BOUNDARY, 1.

JOINDER OF ACTIONS, 1.

* PARTIES, 1, 4.

PRACTICE, 18.

TRUSTS AND TRUSTEES, 2, 3.

ADMINISTRATORS.

See EXECUTORS AND ADMINISTRATORS.

ADVANCEMENT.

1. Where a parent conveyed to his child by a deed of gift certain personal property, the deed setting out that it was "an absolute

gift and intended as an advancement and was not to be accounted
for in the distribution of his estate," and afterwards died intes-
tate; Held, that the value of said property is not to be account-
ed for as an advancement in the distribution of the parent's es-
tate. James v. James, 331.

2. Whether a gift by a parent is an "advancement' or not depends
upon the intention of the parent at the time the gift is made.
Bradsher v. Cannady, 445.

3.

A gift, absolute when it is made, cannot be converted into an ad-
vancement by any subsequent statement of a wish to that effect
by the parent, short of a legally executed will. Ibid.

4 As a general rule money expended in the education of a child is
presumed not to be an "advancement." Ibid.

AFFIDAVIT.

See ATTACHMENT, 4.

AGENT AND PRINCIPAL.
See BANKS, 4, 5.

AGRICULTURAL SUPPLIES

See CONTRACT, 1, 2.

AMENDMENT.

1. An amendment of a record of a Court must be made in the Court
where the record was originally made. Adams v. Reeves, 412.

2. In a motion to amend the records of a Court the facts found by
His Honor below are conclusive upon this Court. Murrill v.
Humphrey, 414.

3. Upon such motion strict proof will be required, particularly when
the rights of minors are involved.

See PLEADING, 2.

ANSWER.

See PLEADING, 1.

APPEAL.

See LANDLORD AND TENANT, 4.

PARTIES, 3.

PRACTICE, 5.

Ibil.

APPRENTICE.

See MASTER AND SERVANT, 5, 6.

ASSAULT AND BATTERY.

See INDICTMENT, 1.

RAPE, 2.

TOWNS AND CITIES. 2.

ARBITRATION AND AWARD.

1. In an arbitration when the claims and evidence of both parties
have been presented, it is not necessary to notify the parties of
the time when the arbitrators will meet and dispose of the case.
Zell v. Johnston, 302.

2. If the decision of a question submitted to arbitrators involves the
decision of another question not submitted, their decision of the
latter is not error. lbid.

3.

A reference of an action or controversy to arbitrators by an At-
torney, although without the knowledge or authority of his client,
is binding upon the client. Morris v. Grier, 410.

ARREST AND BAIL.

1. A non-resident Notary Public has no authority to take an affi-
davit to be used in the Courts of this State. (Bat. Rev. ch. 76)
Benedict, Hall & Co. v. Hall, 113.

2. But where an order of arrest was made upon such affidavit, and a
counter affidavit was filed by the defendant, and a supplemental
one by the plaintiff which was duly verified; Held, That the
Judge below erred in vacating the order. Ibid.

3. A defendant cannot be arrested under C. C. P. § 149. (sub, sec. 4)
unless he has been guilty of fraud in contracting the debt for
which the action is brought. Therefore, when one partner in a
firm obtains credit by false representations, the other partner is
not liable to arrest. McNeely & Walton v. Haynes & Co., 122.

ATTACHMENг.

1. In a proceeding by attachment, where the order for publication
was for four weeks instead of six, and no order was made to de-
posit a copy of the summons and complaint in the post-office di-
rected to the defendant nor was such deposit made, the attach-
ment should be vacated. Burwell v. Lafferty, 383.

2. Where an attachment against A is levied upon the goods of B
which being perishable are sold by the Sheriff, and B interpleads.
in the action and recovers judgment. Held; that the costs and
expenses of the attachment, sale. &c., are not properly chargeable
against the fund arising from such sale. Haywood v. Hardie 384.
In such case, after the death of B, the Sheriff is not a competent
witness as to any communication made to him by B. Ibid.

3.

4.

6

In proceedings in attachment, an affidavit which sets out; 1st.
That the defendant is indebted, &c. 2nd. That the defendant has
departed from this State with intent, as affiant is informed and
believes, to avoid the service of summons," is sufficient. Hess,
Rogers & Co. v. Brower, 428.

AITORNEY.

See ARBITRATION AND AWARD, 3.

EVIDENCE, 3.

PARTIES, 7.

BAILMENT.

See CLAIM AND DELIVERY, 1.

BANKRUPTCY.

See PLEADING, 3.

BANKS.

1.

2.

3.

When a bank receives a check for collection and retains it for
four days without presenting it for payment or making any effort
for its collection or giving any notice to the depositor of its non-
payment, the bank is liable if loss thereby ensues.
Bank of
New Hanover v. Kenan, 340.

In such cases a promise thereafter made by the depositor to pay
to the bank the amount due by reason of the loss, is nudum
pactum. Ibid.

When paper is placed in the hands of a bank for collection, the
bank must take the necessary steps to secure its prompt pay-

ment by presentation at maturity. If it is not paid, the bank, in
order to fix the liability of the drawer, must have it protested
and due notice of its dishonor given to the depositor. If it is not
presented, the fact that if it had been presented it would not
have been paid, does not excuse the liability of the bank. Ibid.
4. When one voluntarily assumes an agency or trust to manage the
interests of another, such agent will not be allowed to sacrifice
the interests of his principal to his own; Therefore, when a bank
received a check upon itself for collection, being at the same
time a large creditor of the drawer, and failed without excuse to
notify the depositor of the non-payment of the check; Held, to
be in law, negligence. Ibid.

5. In such case the bank made the check its own and is fixed with
its full amount Ibid.

See TRUSTS AND TRUSTEES, 4.

BEQUESTS.

See WILLS, 3.

BOND.

1. Where certain tenants in common entered into an obligation
binding "themselves in this bond to resist by law any claim that
may be set up by the heirs of Jno. M. Wilson, and in case of a
law suit each is to bear his or her proportionate share," and
afterwards the land is sold for partition and the purchaser (one
of the tenants in common and a party to the obligation) is com-
pelled to pay a certain sum for said Jno. M, Wilson's interest in
the land; Held, that the obligation is not an indemnity so as to
entitle the purchaser to reimbursement from the other parties
thereto, but is simply an agreement to resist any claim that
might be set up by Jno. M. Wilson's heirs. Wilson v. Sandi-
fer, 347.

2. Municipal bonds unpaid at maturity are dishonored like other
commercial paper, and a purchaser after maturity holds them
subject to all defects which would invalidate them in the hands of
the original holder. Belo v. Com'rs of Forsythe, 489.

3. In an action against a municipal corporation upon a bond issued
by it, by a purchaser for value without notice, the plaintiff need
only show a power in the corporate body to issue the bond. Ibid.
4. If a municipal corporation has the power to issue bonds upon
certain conditions precedent, and such bonds are issued, the
presumption is that the conditions were complied with and the