case, as so much of the order of removal as required the docketing of the case in the superior court was surplusage. Weddington, 103–364.

PRACTICE WHEN TRANSCRIPT INSUFFICIENT.--Where the transcript of the order of removal of a prosecution to another county is insufficient, the proper course, on a motion to quash for such reason, is to have a writ of certiorari issued to the clerk of the county from which the case was removed for a full and true transcript; or in case of a motion to arrest the judgment on such ground, to suspend judgment until such true transcript can be had. But in such case the supreme court may,on appeal, have such record sent up by certiorari to the county whence the case was removed. Surles, 117--720.

It is no ground for arrest of judgment that the original indictment was sent as part of the transcript on removal instead of a copy. Johnson, 6 (2 Murph.), 201.

The superior court of a county to which the case is removed may issue a certiorari directing a more perfect transcript to be certified. Collins, 14 (3 Dev.), 117.

Where after conviction a motion in arrest of judgment is made because the transcript is on two detached sheets, the judge may suspend judgment and order a certiorari, and if upon return of the certiorari at next term it appears that the first transcript was ull and complete, the judgment may be pronounced. Scott, 19 (2 D. & B.), 35.

AMENDMENT OF TRANSCRIPT.-The courts have authority to amend a transcript in order to make it conform to original record. Buckley, 72358.

It is not sufficient ground for arrest of judgment that the court permit ted the transcript to be amended from the original records by the clerk of the county where the indictment was found, so as to show that the same was returned in open court. Underwood, 77-502.

PRACTICE IN MAKING AMENDMENT.-Where there is a defect in the record as it stood in the county from which it was removed, the proper course is to move an amendment in that county, and upon suggestion of a diminution of the record to have the amended record brought up by certiorari to the court in which the cause stands for trial. Swepson, 81-571.

DEFECTS IN TRANSCRIPT MUST BE SPECIFIED.-The overruling of an objection to a transcript of the record, sent from the county from which a case has been removed, can not be assigned as error when the objector refuses to specify in what respects the transcript is defective; certainly where there is no contention that the record is not sufficient to show jurisdiction. Hassell, 119-852.

REMOVAL OF CROP.

See LANDLORD AND TENANT.

REQUISITION.

See EXTRADITION-FUGITIVES.

RESCUE.

See HOMICIDE, OFFICERS-ASSAULT AND BATTERY.

RESISTING OFFICER.

See ARREST-HOMICIDE-ASSAULT AND BATTERY.

An indictment which describes the officer as "a duly constituted officer of the police of the town" and also alleges that he was "discharging a duty of his office" is good. Pickett, 118-1231.

Where the bill charged that the officer resisted was a police officer in the due execution of his office, and the proof was that the officer was the chief marshal of the town, and the town ordinance authorized the constable to make arrests, the variance was immaterial. Pickett, 118-1231.

RETAILING.

See LIQUOR SELLING-LOCAL OPTION.

RIOT.

INDICTMENT.-Where the indictment charges a riot in pulling down and destroying a dwelling-house alleged to be in the possession of a woman, and it appears on trial that the woman is married, though her husband was not living with her at the time the offence was committed, the charge is not supported by the proof, since the charge is not for a general riot, but a riot committed in destroying a particular dwelling-house, and the indictment should state properly whose house it was. Martin, 7 (3 Murph.), 533.

An indictment which alleges that defendants did follow and pursue the prosecutor with sticks and stones "for the purpose of assaulting and beating him," to the terror of the prosecutor and the good citizens of the state then and there residing, sufficiently charges a riot, since it is not necessary to constitute a riot that the facts charged should amount to a distinct and substantive indictable offence, but it is sufficient that the

facts charged would constitute an attempt to commit an act of violence, which if completed would be an indictable offence. York, 70-66.

An indictment for a riot must charge facts which show a breach of the peace or acts directly tending to it, and not a mere civil trespass; hence an indictment for riotously assembling in front of the prosecutor's house and making a great noise and disturbance, which fails to allege that the prosecutor or any member of his family was in the house or present at the time, is fatally defective, and the defect is not supplied by a conclusion that such acts were "to the great damage and terror" of the prosecutor and his wife, since a conclusion can not make an averment. Hathcock, 29 (7 Ired.), 52.

In an indictment for a riot it is necessary to aver and prove a previous unlawful assembly, and, therefore, if the assembly were lawful, the subsequent illegal conduct of the persons so assembled will not make them rioters. Stalcup, 23 (1 Ire.), 30.

VARIANCE.-An indictment for a riot is not supported by proof that defendants assembled in consequence of having been summoned by an officer to aid him in executing a state's warrant issued against the prose cutor, and that the riotous acts were committed after so assembling, since the indictment must always aver, and the evidence prove, that the defendants unlawfully assembled. Stalcup, 23 (1 Ired.), 30.

An indictment charging a riot and forcible trespass to the land of one, is not supported by proof that the land belonged to him, but was then in possession of another as his tenant. Wilson, 23 (1 Ired.), 32.

EVIDENCE.-Parol evidence of the prosecutor's possession is sufficient. Wilson, 23 (1 Ired), 32

PROCESSION-CELEBRATION.-"Defendant and others assembled in a certain town to celebrate the emancipation proclamation, and with two drums and fifes marched up and down the streets for two or three hours. Some were mounted, but being told to dismount they got down and hitched their horses. When told by the mayor to desist they at first refused, but being notified by the constable to stop, the defendant Hughes, with the procession, beating the drum, went to the mayor's office to make up a case to be tried before a magistrate to test the mayor's right to forbid the procession. There were no arms in the crowd except sabres used by the officers: no violence in word or deed was offered to any citizen; some of the citizens were disturbed by the noise of the drums, and some of the persons were drinking; the streets were obstructed from time to time during the interval, and one horse hitched in a lot broke loose": Held, that defendants were not guilty of creating a riot, since the assembly was not unlawful. Hughes, 72-25.

ROADS.

Sec. 565 (2014). What shall be public roads and ferries; their supervision given to justices of the peace; how roads and ferries discontinued. R. C., c. 101. 1868, c. 20. 1868-'9, c. 185. 1879, c. 82.

All roads and ferries that have been laid out or appointed by virtue of any act of assembly, or any order of court, are hereby

declared to be public roads and ferries; and the justices of the peace in each township shall have the supervision and control of the public roads in their respective townships. They shall, with respect to this work, constitute and be styled the "Board of Supervisors of Public Roads" of such township, and under that name, for the purpose aforesaid, they are hereby incorporated the "Board of Supervisors of Public Roads," and the board of county commissioners, as hereafter in this chapter set forth, shall have full power and authority within their respective counties to appoint and set-. tle ferries; to order the laying out of public roads where necessary; to appoint where bridges shall be made; to discontinue such roads and ferries as shall be found useless; and to alter roads so as to make them more useful: Provided, that it shall be the duty of the county commissioners to have all roads laid out and constructed that have been heretofore or may hereafter be ordered as public roads, before the duties of the supervisors as to such roads shall obtain, and that the county commissioners are hereby vested with all the powers that the supervisors now have for having such roads. constructed and received.

Sec. 566 (2017). Who liable to work on roads; time compelled to work. c. 82, s. 4. 1880, c. 30, s. 2.

1879,

All able-bodied male persons between the ages of eighteen years and forty-five years shall be required under the provisions of this chapter to work on the public roads, except the members of the board of supervisors of public roads, but no person shall be compelled to work more than six days in any year, except in case of damage resulting from a storm: Provided, that ten days instead of six days be the limit as to the counties west of the Blue Ridge.

Sec. 567 (2058). License to erect gates across highways, how obtained; misdemeanor to leave open or injure gates. R. C., c. 101, s. 39. 1834, c. 16, ss. 2, 3, 4. 1885, c. 45.

Any person desiring to erect a gate across a public road may file his petition before the board of supervisors of the township where the road lies; whereupon, publication shall be made at the court-house until the next succeeding meeting, of such application, specifying the road, the place for the gate and the name of the petitioner; and all persons interested in the convenient traveling or transportation on such road, shall have leave to appear and defend, demur, or plead to said petition; and if, at that meeting, it shall appear that such publication has been made, the supervisors may, at their discretion, authorize the petitioner, at his cost, to erect a gate as prayed for. And if any person shall leave open,

break down or otherwise injure such gates, he shall forfeit and pay for every such offence ten dollars to the person erecting the same or his assigns of the land, and if the offence shall be maliciously done, he shall be guilty of a misdemeanor.

GATE ACROSS ROAD-The use of a gate across a public road for ten years will not authorize the presumption of a grant for its erection. Marble, 26 (4 Ired.), 318.

An indictment for breaking down a gate across a cartway described it as running through the land of H, beginning near the house of C, in B township, and running in an eastern direction through the lands of said H for the distance of about "one-half mile," and alleged that the cartway was "laid off by the authority of a jury regularly constituted by the board of supervisors in and for said B township": Hela, (1) that the legality of the establishment of said cartway was sufficiently averred in the bill; (2) that the bill sufficiently locates the cartway, although it does not state its easern terminus or whether it runs to a public road. Combs, 120-607.

MUST BE ESTABLISHED ACCORDING TO LAW.-The failure to establish a cartway according to law is a matter of defence to be pleaded in the trial of an indictment for breaking down a gate across it. Combs, 120-607. Sec. 568 (1054). Highways and public roads, overseer of, neglecting his duty. R. C., c. 34, s. 39. 1786, c. 256, s. 4. 1889, c. 504.

Every overseer of a road, who shall wilfully neglect any of the duties imposed on him by law, shall be guilty of a misdemeanor, and the punishment for every such offence shall not exceed a fine of fifty dollars or imprisonment for thirty days.

INDICTMENT.—An indictment under a private statute against the president and directors of a turnpike company for failure to keep the road in repair, is fatally defective if it fail to aver the particular duty or duties alleged to have been omitted. McDowell, 84-798.

An indictment under this section which fails to allege that defendant "wilfully neglected" his duty, is fatally defective, and can not be upheld under sec. 2022. Miller, 100-543.

BAD WEATHER AS AN EXCUSE.-If the weather is so bad as to prevent an overseer from working on the road, or to render unavailing any work he might do, he ought to be excused. Small, 33 (11 Ired.), 571.

APPOINTMENT OF OVERSEER NOT SUFFICIENT.-Where a charter has been granted for a turnpike road and the road opened, the county court has no right to convert it into a public road unless the charter has been duly surrendered, or unless from a non-user for twenty years a dedication to the public may be presumed; and even then the road can only be made a public road in the manner prescribed by the legislature; the mere appointment of an overseer is not sufficient for that purpose. Nash, J., dissenting. Johnson, 33 (11 Ired.),.647.

EVIDENCE.-An order issued by the board of township trustees appointing a person overseer is proper evidence of such appointment. Cauble, 70-62. On indictment of an overseer for failure to keep his road in repair, parol evidence that he professed to be overseer and acted as such is competent, and it is not necessary to show his appointment by the record. Long, 76-254.

OVERSEER FAILING TO KEEP HIS ROAD IN REPAIR.-An indictment against