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defame and slander the plaintiff. It was upon this amended complaint and the original answer denying the charge that the case was tried. If plaintiff was dissatisfied with the ruling, he should have excepted and appealed. Gattis v. Kilgo,N. CS. E Or, better still, for an expeditious hearing, he could have asked the court to divide the actions, and tryFor other cases see same topic and section NUMBER In Dec. & Am. Digs.to date, & Reporter Indexesthem separately. Street v. Tuck,N. C Instead of doing either, the plaintiff acquiesced In the ruling of the court, and nmended the complaint to accord with his honor’s views. We take the law to be that where after judgment upon demurrer, as in this case, the plaintiff does not except, but amends his complaint, so as to meet the views of the court, he acquiesces In the judgment upon the demurrer, and will not be permitted to assign It for error upon appeal.Cyc. p and cases cited There are no exceptions to evidence, and the assignments of error relate to a part of the charge of his honor as follows: “This is an action for slander, charging the defendants combined and conspired to slander the plaintiff; that the plaintiff contends that the defendants combined and conspired to utter the words set out In the complaint and to do him an injury; that the defendants contended that there was no conspiracy, no combination, no malice, no understanding to utter the words complained of; that the burden was on the plaintiff to show a conspiracy; that malice would be presumed from the use of the words set out In the complaint, and the burden of justifying the charges or showing that they were true would be upon the defendants; that, unless the jury was satisfied by the greater weight of the evidence of a conspiracy or combination formed and entered into by the defendants to speak the words set out in the complaint and to charge the plaintiff with larceny of wheat, then the jury will answer the first three issues ‘No,’ and need not consider the fourth issue as this would be the end of the case.” We find no error in this Instruction. It is true the Issues were not framed upon the theory of a conspiracy, but the case was tried upon that theory, and no other, and properly so In deference to the previous ruling of Judge Council. It became the duty of Judge Webb to try the case upon the amended pleadings, as he did do, and to instruct the jury, as he did, so they would not be misled by the form in which the Issues were drawn.Upon a review of the entire record, we find no error.McCLINTOCK v. LIFE INS. CO. OF VIRGINIA.Supreme Court of North Carolina. Nov . JusticesOfThePeaceI Apctai/DismissalFailureToProsecute.A motion to docket and dismiss an appeal has the same effect as ft motion to docket and affirm under Revisal ,. permitting appellee if appellant fails to docket his appeal from a justice, as required by law, to have it docketed, and the judgment shall be affirmed on motion.TEd Note.For other cases, see Justices of the Peace, Cent. Dig.; Dec. Dig. JusticesOfThePeace AppealPboceedingbFobTransferDocketing.Under Revisal ,, providing that, when return is made on appeal from a justice, the clerk of the appellate court shall docket the case at the ensuing term, such appeal must be docketed at the ensuing term, if it is more thandays after judgment.[Ed. Note.-’-For other cases, see Justices of the Peace, Cent. Dig. i; Dec. Dig. AppealAndError DecisionsOfIntermediateCourtDiscretionAllowIngAppealToBeDocketed.Revisal ,, provides that, if appellant fails to have his appeal from a justice docketed as required by law, appellee may have the case docketed and, on motion, the judgment shall be affirmed, and section S requires the clerk of the appellate court to docket the case at the ensuing term. An appeal from a justice’s judgment was taken in September, , and a transcript sent to the clerk of the superior court, but, the appeal not having been docketed at the August term, , after five terms of the court had