Allegation of possession for a long number of years insufficient.
An allegation in a bill of complaint that the complainant entered
into and remained in possession of the land in controversy "for a
long number of years" does not disclose that he continued in
possession for the length of time required to obtain title by
adverse possession. Gaff v. Avent, 86.
ALTERATION OF INSTRUMENTS.
1. Unauthorized alteration by stranger does not invalidate note.
A promissory note is not invalidated because of the unauthorized
alteration thereof by a stranger thereto. Coulson v. Stevens, 797.
2. Unauthorized alteration of note may be ratified by owner.
An unauthorized alteration of a promissory note may be ratified
by the owner thereof, or by his duly authorized agent. Ib.
1. Decree approving probate of will in common form is interlocutory.
A decree of a chancery court approving the act of chancery clerk
in probating a will in common form is an interlocutory decree.
Ryless v. Union & Planters' Bank & Trust Co., 385.
2. Chancellor may grant appeal from interlocutory order or decree
to settle principles of cause.
An appeal may be granted by the chancellor from any interlocu-
tory order or decree in order to settle the principles of a cause,
where such appeal is applied for within ten days after the date of
the order or decree. Section 35, Code of 1906, section 10,
Hemingway's Code. Ib.
3. Judgment for interest and attorney's fees provided for by note
will be entered on appeal.
When a note provides for interest at a fixed rate and attorney's
fees at a fixed rate, when placed in the hands of an attorney for
APPEAL AND ERROR-Continued.
collection, the verdict of the jury finding for the principal and
expressly remitting the interest and attorney's fee is erroneous,
and judgment will be entered here for the attorney's fee and
interest provided in the note Burton v. Eureka Bank, 393.
4. Circuit court is without jurisdiction to affirm without an appeal
bond.
The circuit court is without jurisdiction to enter a judgment
affirming a judgment of the board of supervisors granting a
private right of way over the lands of appellee in the absence
of an appeal bond. Miller v. Johnson, 467.
5. Circuit court had no jurisdiction over judgment of board of super-
visors in absence of appeal bond.
When the petitioner for the right of way prayed an appeal from
the order of the board of supervisors, but failed to give an appeal
bond, the circuit court is without jurisdiction to affirm the judg
ment of the board of supervisors upon motion of the landowner
to docket and affirm the order of the board of supervisors
when it appears that no appeal bond was filed by either of the
parties. Miller v. Johnson, 468.
6. Petitioner for writ of certiorari to bring up 'record has burden to
duly perfect proceedings.
Where petition for writ of certiorari to require the sending up
of an unsigned alleged bill of exceptions from an order of the
board of supervisors is contested by answer, which denies its
correctness and alleges that it was not signed nor agreed to
as being correct, the burden of proof is upon the petitioner to
show its approval by the person acting as president of the
board, and in the absence of such proof the petition should
be denied. Wilkinson County v. Tillery, 515.
7. Consent of trial judge necessary to amendment of bill of excep-
tions.
A bill of exceptions can be amended only with the consent of the
trial judge. Ladnier v. Ingram-Day Lumber Co., 577.
8. Proceedings on petition to amend exceptions should not be includ-
ed in record.
A petition praying for permission to amend a bill of exceptions
and the proceedings thereon when overruled by the trial judge
should not be embraced in the record on appeal to the supreme
court. Ib.
APPEAL AND ERROR-Continued.
9. Statement as to service of notice to transcribe stenographer's
notes may be filed after thirty days from adjournment.
Under chapter 111, Laws of 1910 (Hemingway's Code, section 582),
providing that a person desiring to appeal shall notify the
stenographer in writing within thirty days after the adjourn-
ment of court that a copy of his notes is desired, and that a copy
of this notice with a statement as to how it was served shall
be filed with the clerk of the court, the statement as to how the
notice was served may be filed after the expiration of thirty
days from the adjournment of court. Buchanan v. Sunflower
Compress Co., 618.
10. Assignee's right to prosecute suit in assignor's name includes right
to appeal.
The right conferred by chapter 134, Laws 1916 (section 497, Hem-
ingway's Code), on the assignee of any interest in a chose in
action to begin, prosecute, and continue any suit or action there-
on in the name of the assignor includes the right to appeal
to the supreme court from a judgment in an action which was
begun and prosecuted in the court below in the name of the
assignor. Ridgeway et al. v. Jones, 624.
11. Assignee prosecuting action to judgment in name of assignor must
appeal in his name.
An assignee of an interest in a chose in action on which suit was
prosecuted to judgment in the court below in the name of the
assignor cannot appeal from the judgment in his own name, but
must proscute the appeal in the name of the assignor. Ib.
12. Appeal by partners must be in their individual names.
Where persons composing a partnership have the right to appeal
the appeal must be prosecuted in their individual names and not
in the name of the partnership. Ib.
13. Notice to stenographer to transcribe his notes may be given thirty
days after ruling on motion for new trial.
When motion for a new trial is taken under advisement by the
trial judge to be decided by him in vacation under the provisions
of chapter 158, Laws of 1912 (section 570, Hemingway's Code),
the notice, required by paragraph "a," chapter 111, Laws of 1910
(section 582, Hemingway's Code), to be given the official stenog-
rapher by the person desiring to appeal the case, that a copy
of his notes is desired need not be given within thirty days
after the adjournment of the court, but may be given within
thirty days after an order entered by the trial judge in vacation,
APPEAL AND ERROR-Continued.
disposing of the motion for a new trial. Young v. Alexander ei
al., 643.
14. Motion to strike stenographer's notes from record, held insufficient.
Appellee's motion to strike stenographer's notes from the record
because the transcript of the evidence had never been signed
by trial judge nor been agreed upon by the parties, nor become
a part of the record by operation of law, alleging that "said
notes are incorrect in a material particular," not pointed out
in the motion or appellee's brief, does not authorize supreme
court to determine whether any defect is material, in view of
Laws 1910, chapter 111, par. "d" (Hemingway's Code, section
685). Ib.
15. Limitation of time within which appeal bond should be filed held
not waived.
The limitation provided by section 35, Code 1906 (Hemingway's
Code, section 10), on the time in which appeal bonds in inter-
locutory appeals must be given is not waived by an agreement
between counsel that the appeal bond need not be filed, and
that the issuance of execution on the decree should await the
final determination of the cause, nor is the appellee estopped
thereby from pleading the limitation, when he afterwards has
an execution issued in violation of the agreement. Ellis v. Sut-
ton et al., 691.
16. Erroneous instruction held harmless.
The granting of an erroneous instruction for plaintiff was harm-
less, where it clearly appeared that no testimony was offered to
the jury in support of the counts of the declaration to which it
related, and it was reasonable to say that the jury was not misled
or confused, within Supreme Court Rule 11 (72 S. vii), especially
where the real issues were presented by other counts covered
by instructions given. Cecil Lumber Co. v. McLeod, 768.
17. In husband's action for injuries, evidence of injuries to wife in
same accident held harmless.
In a suit for injuries to a person injured at a railroad crossing,
evidence of the nature and extent of injuries sustained by his
wife in the same accident was inadmissible, but not reversible
error in this case. Yazoo & M. V. R. Co. v. Mothershed, 835.
See COUNTIES; MUNICIPAL CORPORATIONS.
ASSIGNMENTS-BILL OF EXCEPTIONS.
1. Assignment of debt to secure note is assignment as collateral.
A debt due for commissions under an agency contract when as-
signed to secure the payment of a note is an assignment as col-
lateral security, and not a general, unconditional assignment of
the debt. Inter-Southern Life Ins. Co. et al. v. Humphrey. 579.
2. Provision against assignment without debtor's authority does not
prevent assignment as collateral.
The assignment of a debt as collateral security does not violate
the stipulation in the contract against assignment, unless au-
thorized by the debtor, because the prohibition against assign.
ment merely contemplates a general, unconditional assignment.
and not one as collateral security. Ib.
1. Trade checks on their face providing against transfer do not vio-
late statutes.
Trade checks providing on their face that they are not trans-
ferable do not violate section 4001, Code of 1906. There is
nothing in this Code section which invalidates this sort of
contract. Moody v. Finkbine Lumber Co., 407.
2. Partial failure of consideration is defense pro tanto.
A partial failure of the consideration of a promissory note can be
pleaded by the maker as a defense pro tanto when sued thereon
by the payee.
1. Counties. Practice on appeal from decision of supervisors stated.
Section 80 Code of 1906 (section 60, Hemingway's Code), gives
a right of appeal to any person aggrieved by a judgment or
decision of a board of supervisors and requires that the bill
of exceptions embodying the facts as duly presented shall be
signed by the person acting as president of the board. Wilkin-
son County v. Tillery, 515.
2. Appeal and error. Consent of trial judge necessary to amendment
of bill of exceptions.
A bill of exceptions can be amended only with the consent of the
trial judge. Ladiner v. Ingram Day Lumber Co., 577.
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