-Page 611. Findings of fact.—The findings of fact by a Justice of the Peace, upon a motion to vacate a judgment for excusable neglect, are reviewable, on appeal, by the Superior Court, but the findings of fact by the Superior Court upon such motion and appeal are not reviewable by the Supreme Court. Finlayson v. Accident Co., 109 N. C., 196; In re Deaton, 105 N. C., 59.

- Page 611. Amendment in Superior Court. Upon an appeal in a civil action from the Court of a Justice of the Peace to the Superior Court, the latter has power to amend the pleadings and allow new pleas or matters of defence to be set up, and its action in this respect is not, ordinarily, reviewable. Moore v. Garner, 109 N. C., 157.

A defect in affidavit for attachment may be cured in Superior Court on appeal. Sheldon v. Kivett, 110 N. C., 408.

It is not necessary that the amendment should have the concurrence of the Justice of the Peace who heard the cause, nor that the amended charge should be re-sworn. State v. Norman, 110 N. C., 484.

In claim and delivery, the evidence being uncontradicted that the value was less than fifty dollars, such amendment could have been made after verdict and judgment; and if the omission was by mistake or inadvertence, the amendment could have been allowed in the Superior Court, not to give jurisdiction, but to make it appear by the summons that it had not been improperly exercised. Cox v. Grisham, 113 N. C., 279.

The Court can amend the warrant. State v. Gillikin, 114 N. C., 832. On the trial of an appeal from a judgment of the Justice of the Peace, in an action to recover for a breach of contract, and also to enforce an equity, the trial Judge properly allowed an amendment discarding the equitable proceedings. Starke v. Cotten, 115 N. C., 81.

– Page 613. After appeal sent up.-A Justice of the Peace has no power, after he has transmitted an appeal from his judgment and all the papers to the reviewing court, to grant a motion to set aside his judgment for want of jurisdiction. Forbes v. McGuire, 116 N. C.

Page 613. Jurisdiction of equitable defense. -Although the courts of Justices of the Peace cannot affirmatively administer equity, they have jurisdiction of equitable matters set up by way of defense in actions properly cognizable before them. Bell v. Howerton, III N. C., 69.

-Page 613. Title to land involved.-Where, under a will devising all testator's land to his wife, remainder to plaintiff in fee, except fifty acres in some suitable place, on certain conditions, to defendant, and defendant, who was a tenant of the wife during her life of fifty acres, claims title to the same as being in a suitable place, and on conditions performed, an action by plaintiff for possession involves the title to land, and a Justice of the Peace has no jurisdiction. Wright v. Harris,

116 N. C.

·Page 613. Summons returnable before another Justice.-A summons issued by one Justice of the Peace cannot be made returnable, in civil cases, before another (except in cases of summary proceedings in ejectment), and was properly dismissed by the latter. Williams v. Bowling, III N. C., 295.

-Page 613. Joinder of matters of which Justice has not jurisdiction. Where, in an action before a Justice of the Peace, the plaintiff included in her complaint demands, of only some of which that court had jurisdiction, and on appeal to the Superior Court recovered judgment upon that portion which was cognizable before the Justice of the Peace, the

judgment will be sustained. Beville v. Cox, 109 N. C., 265; Starke v. Cotton, 115 N. C., 81.

Since under Code, sec. 1754, a judgment for rent is a lien on the crops, a judgment of a Justice's court for rent, also adjudging the judgment a lien on the crops, is not invalid as being in excess of his jurisdiction, as the portion of the judgment adjudging the lien will be treated as surplusage. Hargrove v. Harris, 116 N. C.

Page 613. Splitting up account. Where the plaintiff made successive deliveries of lumber, the value of each delivery being less than $200, but the aggregate value was greater than that amount: Held. that while the plaintiff might have maintained an action before a Justice of the Peace for the value of each delivery as it was made, having postponed his suit until the whole sum became due, he could not split the cause of action and thereby confer jurisdiction on the Justice of the Peace. McPhail v. Johnson, 109 N. Č., 571.

The defense that the taking of a partnership account is involved, will not divest jurisdiction of the Justice when investigation shows that the plea is not well taken. Hooks v. Houston, 109 N. C., 623.

A landlord instituted in the Court of a Justice of the Peace two separate actions, each for the recovery of a bale of cotton to which he claimed title under a contract with his tenant, and which he alleged had been wrongfully converted: Held, that this was not such a splitting of causes of action as would authorize a dismissal of the suits. Bell v. Howerton, III N. C., 69.

When a creditor, having items of account contracted by a debtor at different dates, consolidates them and renders a statement to the debtor, claiming the round sum, to which the debtor makes no objection, the creditor cannot afterwards separate the items so as to sue on them separately before a Justice of the Peace. Marks v. Ballance, 113 N. C., 28; Hawkins v. Long, 74 N. C. 781.

Sec. 567, page 615. The Court will take jurisdiction.-While the Court has no jurisdiction of a case submitted without action, under this section, where it does not appear by affidavit that the controversy is real; yet, where all the parties interested in the construction of a will (including the executor, who is claimant and is in possession of the property concerning which the question arises) agree, as petitioners, to submit the question to the decision of a Judge of the Superior Court, the Supreme Court will take cognizance of the case as an application by the executor for a construction of the will, so as to enable him to dispose of the fund in his hands. Ruffin v. Ruffin, 112 N. C., 102.

—Page 615. The Court will not take jurisdiction.-Where a controversy, without action, is submitted for the sole purpose of obtaining the opinion of the Court upon a question, the effect of which might be to derange for a time the administration of the public-school system, the Supreme Court will decline to entertain the controversy. Board of Education v. Kenan, 112 N. C., 566.

Sec. 570, page 617. By corporation. -A corporation may confess judgment, without action, in or out of term, but the record should show that the officer or person who represented the corporation in the proceeding was duly authorized to act. Nimrocks v. Shingle Company, 110 N. C., 20.

A confession of judgment by the treasurer of a corporation under a resolution adopted at a meeting of a majority of the stockholders, without the approval of the directors and against the protest of the minority

stockholders, is without authority and should be quashed. Nimrocks v. Shingle Company, 110 N. C., 21.

A confession of judgment by an insolvent corporation in favor of a director who is a creditor, and upon a debt theretofore existing, is void as against other creditors. Hill v. Lumber Company, 113 N. C., 174.

Sec. 571, page 617. Requisites.-The failure to file with the confession of judgment the note or other evidence of indebtedness does not invalidate the judgment, provided the confession contains a sufficient description of the nature of the indebtedness to enable a party to make inquiry and ascertain the truth of the matter. Bank v. Cotton Mills, 115 N. C., 507.

Where such confession is for "goods sold and delivered," it is sufficient, although the time of sale, quantity, price and value of the goods are not stated. Bank v. Cotton Mills, 115 N. C., 508.

The filing is equivalent to an express authority for its entry, and sufficiently conforms to the statute. Bank v. Cotton Mills, 115 N. C., 508.

A confession of judgment containing a duly verified statement of defendant that the amount for which the judgment was authorized to be rendered was "$2,250, with interest at six per cent. from November 2, 1876, is justly due from him to the plaintiff," and "that said amount is due from him to the plaintiff on a bond, under seal, for borrowed money due and payable November 2, 1876," is a compliance with this section. (Davidson v. Alexander, 84 N. C., 261, and Davenport v. Morris, 95 N. C., 203, distinguished.) Uzzle v. Vinson, 111 N. C., 138.

Sec. 572, page 618. Irregularities.-Ordinarily, a judgment by confession without action will not be set aside for mere irregularities, the party confessing the judgmen being presumed to have waived them; but where the judgment is void for cause appearing in the record, or the record omits some essential element, it will be set aside or quashed. Nimrocks v. Shingle Company, 110 N. C., 20.

Such irregularities in a confession of judgment as might be corrected by amendment in the case of ordinary judgments may be the subject of amendment in a confession of judgment. Bank v. Cotton Mills, 115 N. C., 508.

—Page 618. Will not vitiate.-A confession of judgment for a greater rate of interest than the note or contract upon which it is based bears, will not, in the absence of fraud, invalidate the judgment. Bank v. Cotton Mills, 115 N. C., 508.

A stipulation in a confession of judgment that no execution shall issue thereon within a time specified is not such a reservation for the benefit of the debtor as impairs the rights of other creditors, and does not vitiate the judgment. Bank v. Cotton Mills, 115 N. C., 508.

-Page 618. When void.-A judgment by confession without action, founded on contract, in the Superior Court, for a sum not in excess of two hundred dollars, is void for want of jurisdiction. cumb v. Shingle Company, 110 N. C., 24.

Slo

Sec. 574, page 620. Compromise enforceable. -An agreement to accept a part of the debt in discharge of the whole is an enforceable contract under this section. Boykin v. Buie, 109 N. C., 501.

—Page 620. Compromise not effectuated. -Defendant can take no benefit from an agreement to compromise a charge against land when he has not complied with the terms of the agreement, but repudiated it,

claiming that there was no charge against the land because the debt was a personal one and has become barred by limitation. Hunt v. Wheeler, 116 N. C.

Sec. 575, page 621. Offer effective if accepted. The offer of a part in satisfaction of the whole, if accepted, discharges a debt as fully and effectually as if the entire sum originally due is paid in full, and this is so whether the amount due is certain or contingent and unliquidated. Petit v. Woodlief, 115 N. C., 120; Boykin v. Buie, 107 N. C., 501.

Sec. 579, page 625. Books of corporation.-A stockholder may compel the directors of a corporation, under this and succeeding sections, to permit him to examine the books of the corporation so as to enable him to procure evidence in order to set aside an assignment by the corporation of a contract as fraudulent. Holt v. Warehouse Co., 116 N. C.

Sec. 580, page 626. Though it may subject defendant to loss.-In an action by a stockholder to set aside an assignment of a contract by the corporation as fraudulent, the directors may be compelled to disclose facts so as to enable plaintiff to draw his pleadings, though their evidence may subject them to pecuniary loss. Holt v. Warehouse Co., 116 N. C.

— Page 627. Guardian competent witness.—In an action on a guardian bond, executed before August 1, 1868, in which a reference has been ordered to state an account, the guardian is a competent witness. Coggins v. Flythe, 113 N. C., 102.

Sec. 581, page 628.

Amended by inserting in line seven after the word "Judge," the words "or Court." Acts 1893, ch. 114.

-Page 628. Use of evidence optional.-A party who has examined his adversary under the provisions of this section, is not compelled to use the testimony on the trial, nor does he, by such examination, make his adversary his witness. Shober v. Wheeler, 113 N. C., 370.

— Page 628. In any part of district. Where a defendant, after assenting to an order made by a Judge in a county other than that in which the action was pending, but within the same judicial district, directing him to appear before a commissioner for examination, under sections 580 and 581 of The Code, appeared before such commissioner in obedience to the requirements of the order, it was too late to withdraw his assent given to the order when first made, and by refusing to answer pertinent questions he is amenable, to be punished as for contempt. Fertilizer Co. v. Taylor, 112 N. C., 141.

Page 628. Notice not required.-It is not necessary that a party to an action, who desires to examine the adverse party before trial, under paragraphs 580 and 581 of The Code, shall first obtain leave from the Court to make such examination. The words of the statute, "unless for good cause shown, the Judge shall order otherwise," apply only to the length of the time of notice, less than five days. Vann v. Lawrence, III N. C., 32.

Sec. 582, page 628. Appeal premature. -An appeal from an order of the Court, before which an examination is being made under section 580, directing the examination to proceed, is premature. Vann v. Lawrence, III N. C., 32.

Sec. 590, page 635. Not transactions.-The testimony of a sister of plaintiff, to whom a note similar to that sued on was executed, to the effect that before and after the date of the note, her father "was very bright," was not objectionable under section 590 of The Code, in relation to transactions with a decedent. Ducker v. Whitson, 112 N. C., 44.

It is competent to show by a witness that she saw the book in the hands of the intestate on the day of her marriage, as that would not have been a "transaction" with the deceased, but not that she handed him the book. Lane v. Rogers, 113 N. C., 171.

Testimony that a witness carried supplies to a decedent, is not evidence of a conversation or transaction which make the witness incompetent. Cowan v. Layburn, 116 N. C.

—Page 635. Marriage.-Marriage is a transaction. Hopkins v. Bowers, III N. C., 175.

- Page 640. Administrator may elect to testify.-Incompetency of a witness under this section attaches only to the surviving party to the transaction, and in an action on a bond, plaintiff administrator of a deceased person is competent to prove the execution by the defendant of the bond. Williams v. Cooper, 113 N. C., 286.

— Page 640. Handwriting not a transaction with witness. Although under this section, a party to an action may not testify to the actual execution by the deceased person, whose administrator is a party, of a paper-writing constituting a personal transaction between him and the deceased, yet he may testify to the handwriting of the deceased, if he can. Sawyer v. Grandy, 113 N. C., 42; Ferebee v. Pritchard, 112 N. C., 83.

Page 640. Evidence in reply restricted to same transaction.Where a plaintiff, administrator and distributee of a deceased person, testified only to the execution of the bond, this did not confer upon the defendant the right to testify as to payments made by him on the bond, nor to cross-examine the plaintiff administrator in regard to such alleged payments. Williams v. Cooper, 113 N. C., 286.

Page 641. Transaction with deceased agent. It is competent for a party to testify in regard to transactions that took place between himself and an agent of the defendant within the scope of his agency, and also to the declarations of the agent as a part of those transactions, notwithstanding the agent be dead. Roberts v. Railroad, 109 N. C., 670; Sprague v. Bond, 113 N. C., 552.

Page 641. Plaintiff cannot prove his own execution of contract.Where a paper-writing, alleged to be a contract between plaintiff and the intestate of the defendant, was introduced in evidence on the trial, it was error to allow the plaintiff to testify that he himself signed the paper. Sawyer v. Grandy, 113 N. C., 42.

-Page 641. True test of competency of witness under this section.— The true test of the competency of a witness under this section is, whether he bears such a relation to the controversy that the verdict and judgment in the case may be used against him as a party in another action. If not, he is not disqualified. Therefore, in the trial of an action to recover land, a person living as member of plaintiff's household on the land, and aiding in her support, is not a party so "interested in the action" as to be incompetent to testify in regard to a transaction with a deceased father of the defendants. Jones v. Emory, 115 N. C., 158.