and the payee endorsed it to the plaintiff before maturity. After the
endorsement the obligor paid the amount due to the payee, who mis-
applied it; and It was held, that the bond was a negotiable instru-
ment, and plaintiff being an endorsee without notice and before ma-
turity, was entitled to recover. Ibid.

7. If, in such case, the bond had not been endorsed by the payee, and had
been paid and discharged by the obligor before its delivery to the
plaintiff, he could not have recovered. Ibid.

8. Where there is an inherent constitutional defect in the statute author-
izing the issue of municipal bonds, a purchaser of the bonds takes
them with notice of their illegal origin, for purchasers must inquire
into the authority by which the bonds are issued, and are held to
notice of any defect therein. Duke v. Brown, 127.

9. A majority of the qualified voters, and not merely of those voting, is
necessary to enable a municipal corporation to loan its credit or con-
tract a debt.

Ibid.

10. Where several persons unite in executing a bond to a commission mer-
chant for supplies to be furnished them, and one of them gives a chat-
tel mortgage to secure the amounts advanced to him, which mortgage
erroneously recites the amount of the bond, but truly specifies the
amount of the advances made to the mortgagor; It was held, that the
variance was immaterial. Spivey v. Grant, 214.

II. Where several persons unite in executing a bond, a change made by
the obligee with the consent of one of them does not vitiate the bond
as to him, whatever its effect may be as to the others. Ibid.

12. Where a mortgage is executed to secure a usurious note, the usury only
affects the interest and does not impair the validity of the mortgage.
Ibid.

13. Where the defendant executed his bond to a municipal corporation for
a license tax, instead of paying cash, he is estopped from setting up
as a defence that the municipal authorities had no power to take such
bond and issue the license, and consequently that the bond was void.
Hendersonville v. Price, 423.

BOND TO STAY EXECUTION:

(See SUPERSEDEAS BOND.)

BOUNDARY:

I. Where a devise described the devised land as containing two hundred
acres, the area cannot control the boundaries by which the land is also
described in the deed. Lyon v. Lyon, 439.

2. In doubtful cases the area may aid in determining the boundaries, but
when it is at variance with them it must be disregarded. Ibid.

3. A description of land in a deed, describing it as all the interest, right,
title and claim the grantors may have in the estate of the deceased
father of one of them, more particularly one undivided seventh share
which descended to the grantor from her father, is sufficient to admit
of parol evidence to fit the description to the thing. Robbins v. Har-

ris, 557.

BREACH OF TRUST:

Where a party unites with a trustee in a breach of trust, or there are cir-
cumstances to put him on his guard and awaken suspicion, he will be
required to repay to the trust fund any of its assets which he may have
received in consequence of the breach of trust. Dancy v. Duncan, III.

BURDEN OF PROOF:

The burden of proof is on the plaintiff to show that a co-employee of a com-
mon master is a superior and not a fellow-servant, unless the nature of
the employment shows the extent of the co-employee's powers. Patton
v. R. R. Co., 455.

CERTIORARI:

1. A certiorari will not be granted to correct the statement of the case on
appeal as made up by the Judge, unless it is suggested that an unin-
tentional mistake has been made, when the case may be remanded, or
a certiorari granted, in order to give the Judge an opportunity, if he
thinks proper, to correct the case. Mayo v. Leggett, 237.

2. Where on an application for a certiorari the affidavits are conflicting,
this Court will not undertake to settle the disputed facts.
Short v.
Sparrow, 348.

3. Where an application for a certiorari does not assign any error in the
judgment sought to be brought up for review, nor disclose any merito-
rious ground of appeal, the writ will be refused. Ibid.

CHARTER:

I. Where the charter of a corporation allowed it to borrow money on such
terms as its directors might determine upon, and to issue bonds or
other evidences of indebtedness; It was held, that this provision al-
lowed it to sell its bonds below their face value, and where it did so,
the loan was not for that reason usurious. Bank v. M'f'g Co., 298.
2. A provision in a charter allowing a corporation to lend money at a usu-
rious rate of interest, does not confer the power on them to do so, but
a provision to borrow money at such rate is not liable to any objec-
tion.

Ibid.

CLERK:

1. A cause of action against the clerk for malfeasance in office in accept-
ing an insufficient bond from an administrator cannot be joined with
a cause of action against such administrator and his sureties for a de-
vastavit, the respective liabilities of the parties having no connection.
The Code, $267. Mitchell v. Mitchell, 14.

2. The clerk only acts ministerially in issuing the process for attachment.
Evans v. Etheridge, 42.

3. In the absence of statutory regulation, a party is only prohibited from
acting in his own case when he exercises some judicial, as distin-
guished from a ministerial, office. Ibid.

4. A clerk of the Superior Court, upon making the necessary affidavit be-
fore some person authorized by law, may issue a warrant of attach-
ment in an action in which he is plaintiff. Ibid.

5. It has been the practice in this State for clerks to issue process either
for or against themselves. Ibid.

6. Where proceedings were brought before the Probate Judge which should
have been brought before the Clerk, and vice versa, the irregularity is
cured by the statute (Bat. Rev., ch. 17, §§ 425, 426).
Ward v.
Lowndes, 367.

7. While the assignment of dower is a Special Proceeding of which the
Clerk has jurisdiction, yet if any equitable element is involved, which
under the former practice would have been cognizable in a Court of
equity, the Superior Court in term has jurisdiction, and the applica-
tion for dower becomes a civil action. Efland v. Efland, 488.

8. Where an action was brought by a widow, alleging that the legal title to
certain land was in the defendants, but that they held it in trust for
her deceased husband, and asking that they be declared trustees and
that her dower be assigned in the land; It was held, that the Superior
Court in term, and not the Clerk, had jurisdiction. Ibid.

1. While a creditor may issue execution and sell property disposed of in
fraud of creditors, this does not prevent a Court of Equity from re-
straining the fraudulent donee until the question of fraud can be tried,
so that the property can be sold free from any cloud, and under the
Code practice all this may be done in one suit. Frank v. Robinson, 28.
2. The procedure under The Code has not changed the legal or equitable
rights of litigants, but only allows them, as they existed under the old
system, to be administered in one action. Allen v. Taylor, 37.

COMMON CARRIER:

(See RAILROADS).

COMMON LAW:

The common law is presumed to exist in other States, unless it is shown
to have been changed by statute. Cade v. Davis, 139.