^ ^A^S-.Z .\g53 v.\ I UNNERSITV OF HC. AT CHAPEL HIU 00035472005 This book must not be taken from the Library building. ^Izlfl^^f-" ' V THE CODE OF NOETH CAEOLINA, Enacted March 2, 1883. Prepared under Chapters 145 and 315 op the Laws of 1881, and under Chapter 191 OF the Laws of 1883. WILLIAM T. DORTCH, JOHN MANNING, JOHN S. HENDERSON. Il^T T^-^TV O ^;^ O X_i XJIS/I E s . VOL. I. NEW YORK: BANKS & BROTHERS, LAW PUBLISHERS. 144 Nassau Steebt. 473 AND 475 BROADWAY, ALBANY. 1883. ^ vht 1883 by William L. Saunders, Secretary of State, for the Printer, , North Willi! CONTENTS OF VOLUME I. THE CODE— §§ 1 TO 2183, BOTH mcLDsrvE. CHAPTERS. 1. Adoption of Minor Children. 2. Aliens. 3. Apprentices. 4. Attorneys at Law. 5. Bastardy. 6. Bills, Bonds and Promissory Notes. 7. Burning Woods. 8. Buint and Lost Records. 9. Cleiks of Superior Courts. 10. Code of Civil Procedure. 11. Commissioners of Affidavits. 12. Common Law. 13. Constables. 14. Contempt. 15. Coroner. 16. Corporations. 17. Counties, County Commissioners, County Government. 18. County Revenue and Charges and Costs in Criminal Actions. 19. County Treasurer. 20. Court Houses, Prisons and Work Houses. 21. Courts, Inferior. 22. Courts of Justices of the Peace. 23. Courts, Superior. 24. Court, Supreme. 25. Crimes and Punishments. 26. Criminal Proceedings. 27. Deeds and Conveyances. 28. Descents. 29. Divorce and Alimony. 30. Draining and Damming Lowlands. 31. Estates. 33. Evidence. 33. E.xecutors and Administrators. 34. Frauds and Fraudulent Conveyances. 35. Guardian and Ward. 36. Habeas Corpus. 37. Idiots, Lunatics and Inebriates. iv CONTENTS OF VOLUME II. 38. Internal Improvemenls. 39. Jurors. 40. Landlord and Tenant. 41. Liens. . , 42. Marriage and Marriage Settlements, and the Contracts ol Married Women. \d. Mills. 44. Money Remaining in Hands of Clerks and others. 45. Offices. 46. Official Bonds. 47. Partition. 48. Processioning. 49. Rail Road and Telegraph Companies. 50. Roads, Ferries and Bridges. 51. Sheriffs. 53. Surety and Principal. 53. Widows. 54. Wills and Testaments. CONTENTS OF VOLUME II., §§ 2184 ET SEQ. CHAPTERS. 1. Agriculture and Geology. 2. Asylums. 8. Auctioneers. 4. Banks. 5. Boats and Canoes. 6. Boundaries of State. 7. Building and Loan Associations. 8. Capitol, Buildings and Grounds. 9. Cattle and other Live Stock. 10. Charities, Public and Private. 11. Cherokee Lands. 12. Cruelty to Animals. 13. Currency. 14. Dogs. 15. Education. 16. Elections Regulated. 17. Entries and Grants. 18. Express Companies. 19. Fairs. 20. Fences and Stock Law. 21. Game, Hunting, Wild Fowl. 22. Gaming Contracts. 23. General Assembly. 24. Health and Quarantine. 25. Impeachment. CONTENTS OF VOLUME II. 26. Infamous persons. 27. Insolvent Debtojs. 28. Inspections. 29. Insurance. 30. Light-houses. 31. Limited Partnership. 32. Local Option, Liquors and Wine. 33. Master and Servant. 34. Medical Society, Pharmaceutical Association, Dentistry 35. Militia and State Guard. 36. Mines. 37. Names. 38. Navigation. 39. Notaries. 40. Oaths. 41. Officers of State. 48. Overseers. 43. Oysters and Other Fish 44. Penitentiary, Prisoners and Convicts. 45. Pensions. 46. Pilots. 47. Poor. 48. Public Arms. 49. Public Debt. 50. Public Documents. 51. Public Libraries. 52. Public Printing. 53 Register of Deeds. 54. Religious Societies. 55. Revenue and Taxation. 56. Rivers and Creeks. 57. Salaries and Fees. 58. Slander of Women. 59. Statutes, Repeal and Construction of. 60. Strays. 61. Sunday and Holidays. 62. Towns and Cities. 63. Tramps and Vagrants. 64. Usury. 65. Weights and Measures. 66. Wrecks. 67. Concerning the Code APPENDIX. Constitution of the United States. Index thereto. Constitution of North Carolina. Index thereto. Acts of Congress Regulating the xVuthenticotion of Records Acts of Congress Regulating Naturalization. Acts of Congress Regulating the Removal of Causes ERRATA. Section. , , line 4, for "may child be " read "child may he. 39, 87 "9, for "bonnd" read " bond." 1, for " imprisioned" read " imprisoned." 5, for "a" before " title" read " the." 239, (3) " 3. Jo"^ " case" read "cause." 163, (3) 219 291, (3) 326, 364, 364, 505 6, for ' ' therof " read ' ' thereof. " 6, insert " to " before first word " the. 1, for "officers " read " officer." 4, for "summons" read "summon." 446, " 5, for "of" read "or 2 insert "to" after "according 654! (3) ■ ' 5, for ■ ' withness " read " witness. STATE OF NORTH CAROLINA. IN THE YEAR OP OUR LORD ONE THOUSAND EIGHT HUNDRED AND EIGHTY-THREE. AN ACT FOR REVISING AND CONSOLIDATING THE PUBLIC AND GENERAL STATUTES OF THE STATE OF NORTH CAROLINA. The General Assembly of North Carolina do enact the following named chapters and sections, to be known as The Code, that is to say: — ADOPTION OF MINOE CHILDREN. [Chap. 1. CHAPTER ONE. ADOPTION OF MINOE OHILDEEN. Section. 4. Bond to be given if tlie raiiioi- be an orplian having properly. 5. Order to be recorded. 6. Parent or guardian must be party of record. Section. 1. Person desirous of adopting mi- nor may file petition in the su- perior court. 2. Court may grant letters of adop- tion. 3. Effect of order. Section 1. Person desirous of adopting minor children may file petition in superior court. 1872-'3, c. 155, s. 1. Any person desiring to adopt any minor child may file a petition in the superior court of the county wherein such child resides, setting forth the name and age of such child and the name of its parents, whether the parents or either of them be hving, and if there be no living pa- rent the name of the guardian, if any, and if there be no guardian the name of the person having charge of the child or with whom such child resides, the amount and nature of the child's estate, if any, and especially if the the adoption is for the mmority or for the life of the child. Sec. 2. Court may grant letters of adoption. 1872-'3, c. 155, s. 2. Upon the filing of such petition, and with the consent of the parent or parents, if living, or of the guardian, if any, or of the person with whom such child resides, or who may have charge of such child, the court may, if the petitioner be a proper and suitable person, sanction and allow such adoption by an order granting letters of adoption. Sec. 3. Effect of order. 1872-'.3, c. 155, s. 3. Such order, when made, shall have the effect forth- with to establish the i-elation of parent and child be- tween the petitioner and the child during the minority or for the life of such child, according to the prayer of Chap. 2.] ALIENS. 3 the petition, with all the duties, powers and rights be- longing to the relationship of parent and child, and in case the adoption be for the life of the child, and the pe- titioner die intestate, such order shall have the further effect to enable such child to inherit the real estate and entitle it to the personal estate of the petitioner in the same manner and to the same extent such child would have been entitled to, if such child had been the actual child of the person adopting it. Provided, such child shall not so inherit, and be so entitled to personal estate if the petitioner specially set forth in his petition such to be his desire and intention. Sec. 4. Bond to l>e given if the minor be an orphan liav- ing property. 1872-'3, c. 155, s. 4. If such child be an orphan and without guardian, and shall be possessed of any estate, the court shall require from the petitioner such bond as is required by law to be given by guardians. Sec. 5. Order to be recorded. 1872-'3, c. 155, s. 5. The order granting letters of adoption shall be recorded in the office of the clerk of the superior court of the county in which it is made, and may be revoked at any time by the court for good cause shown. Sec. 6. Parent or guardian must be party of record. 1872-'3, c. 155, s. 6. The parent or guardian, or the person having charge of such child, or with whom it may reside, must be party of record in this proceeding. CHAPTEE TWO. ALIENS. Section. | Section. 7. Aliens may take and hold lands. | 8. Prior contracts made valid. Sec. 7. Aliens may take and hold lands. 1870-'71, c. 255, s. 1. It shall be lawful for aliens to take both by purchase and descent or other operation of law any lands, tene- 4 APPRENTICES. [Chap. 3, ments or hereditaments, and to hold and convey the same as fully as citizens of this state can or may do, any law or usage to the contrary notwithstanding. Sec. 8. Prior contracts made valid. 1870-'71, c. 255, s. 2. All contracts to purchase or sell real estate by or with aliens, heretofore made, shall be deemed and taken as vaUd to all intents and purposes. CHAPTER THREE. APPEENTICES. Sbctioh. 9. Bindingto be by indenture. 10. Remedy tliereon. 11 . Who may be apprenticed. 12. For -wliat time bound. Section. 13. Duties of masters. 14. Duty of clerli. 15. Apprentices, how compelled to serve. 16. Misconduct of masters. Sec. 9. Binding to be by indenture. C. C. P. s. 482. The binding of apprentices shall be by indenture, made in the name' of the clerk of the superior court of the county of the one part, and of the master or misti'ess ot the other part; which indenture shall be recorded and filed in the office of the clerk of the superior court. Sec. 10. Kemedy thereon. C. C. P. s. 483. The apprentice may bring an action on such indenture in the name of the clerk and his successors, and recover any damages sustained by reason of the breach ot the covenants contained in said indenture. Sec. 11. Who may be apprenticed. C. C. P., s. 484. The clerks of the superior courts in their respective counties shall bind out as apprentices: (1) All orphans whose estates are of so sraaU value that no person will educate and maintam them for the profits thereof; Chap. 3.] APPEENTICES. 5 Stout V. Woody, 63—37; Mitchell v. Mitchell. 07—307; Spears v. Snell, 74—210. (2) All infants whose fathers have deserted their fam- ilies and been absent for one year, leaving them without sufficient support; Stout V. Woody, 63—37. (3) All infants (not living with the father) whose mother has secured to her such property as the infants may thereaftei-. acquire, provided the clerk deems it im- proper to permit such infants to remain with the niother; (4) All infants who make application to the board of commissioners of the county for relief out of the funds for the poor, and such fact is certified by the board to the clerk; (5) All infants whose parents do not habitually em- ploy their time in some honest, industrious occupation. Sec. 12. For wLat time liound. 1869— '70, c. 7. C. C. P., s. 485. 1874-'5, c. 89. Every male apprentice shall be bound to some discreet person approved by the clerk, till the age of twenty-one, and every female apprentice until the age of eighteen years: Provided, that no white child shall be bound to a colored master or mistress. Sec. 13. Duties of masters. C. C. P., s. 486. The master shall provide for the apprentice: (1) Diet, clothes, lodgings and accommodation fit and necessary; (2) Education in reading, writing and arithmetic; (3) Six dollars in cash, a new suit of clothes and a new Bible, at the end of the apprenticeship; (4) Such other education, sum of money, or articles of furniture or implements of trade, as may be agreed on between the clerk and the master, and inserted in the indenture. Sec. 14. Duty of clerk. C. C. P., s. 487. On application of any person to have an apprentice bound to him, it is the duty of the clerk to inform him- self of the circumstances of the case; and for this pur- pose he may cite before him the relatives of the orphan or infant, for examination on oath ; and he may also ex- amine such other persons as he deems proper. In the selection of a master he shall prefer, so far as may be consistent in other respects with the comfort and in- ATTORNEYS AT LAW. [Chap. 4. teiest of the apprentice, some tradesman of a useful art or mystery. Sec. 15. Apprentices, how conipelled to serve. C. C. P., s. 488. If an apprentice refuses to serve as required by the in- denture or by law, the clerk may, on application of the master, compel him, by citation or otherwise, to appear for inquiry into the facts; and if the complaint is well- founded, and the apprentice persists in such refusal, tlie clerk may commit him by warrant to the house of correc- tion or the common jail of the county until he consents. Sec. 16. Misconduct of masters. 1762, ss. 19, 20. C. C. P., s. 489. Upon complaint of any apprentice that the master is guilty of cruelty, ill-usage, refusal of neccesary provisions or clothing, or any other violation of the indenture, or of the law to^vards such apprentice, the clerk may, by order, compel the appearance of the master before him, when he shall examine and determine the complaint; and if the same is well founded, he shall cancel the indenture and discharge such apprentice from his obligation of service, and may proceed to appoint another master. Dowd V. Davis, 4 Dev., 01; Wyatt v. Morris, 3 D. & B., 108; Good- bread v. Wells, 2 D. & B., 476; McKay v. Bryson, Sired., 310; Hiattv. Gilmer, 6 Ired., 450; Hooks v. Pcrliins, Busb., 31; Allison v. Norwood, Busb.,'414; Midgcttv. McBryde, 3 Jon., 21; Owens v. Chaplain, 3 Jon., 323; Prue v. Hight, 6 Jon., 265; Ferrell v. Boykin, Pliil. 9; In re Ambrose, Phil., 91; Beard v. Hudson, Phil., 180; State v. Elam, Phil., 460; Biggs y. Harris, 64-413. CHAPTER FOUR. ATTORNEYS AT LAW. Section. 17. Attorneys licensed by justices of supreme court. 18. Persons from other states li- censed, when. 19. Attorney to take oaths. Section. 20. Tax on attorney's license. 21. To pay a tax for license. 32. To pay costs of suit dismissed forhis failure to file a com- plaint. Chap. 4.] ATTORNEYS AT LAW. Section. 37. Justices of the peace not to prac- tice as attorneys. 38. Clerks of courts forbidden to practice la'w;. 29. Power of attorney to be produced and filed by attorney, if re- quired; if necessary to retain tbe power, what to be done. 30. Right of attorney to speak. Section. 23. Guilty of fraud, to pay double damages. 24. Judgment against attorney for wilful failure to pay over money collected for client upon demand. 25. To be debarred for such failure upon notice and production of the judgment. 26. Attorney not to be debarred, ex- cept, &c. •^Sec. 17. Attorneys licensedlby justices of supreme court. B. C, c. 9, s. 1. 1818, c. 963, s. 3. Persons who may apply for admission to practice as attorneys in any court, shall midergo an examination before two or more of the justices of the supreme court; and, on receiving certificates from said justices of their competent law knowledge and upright character, shall be admitted as attorneys in the courts specified in such cer- tificates. Ex parte Thompson, 3 Hawks, 355. i-'Sec. 18. Persons from other states licensed, when. R. C, c. 9. .S.2. 1777, c. 115, s. 8. No person coming into this state from any other state, or from any foreign country, with an intention to prac- tice the law, shall be admitted to practice as an attorney, unless he shall have previously resided one year in this state, or shall produce to the said justices a testmionial from the chief magistrate of such state or country, or from some other competent authority, that he is of unex- ceptionable moral character. t- Sec. 19. Attorney to take oaths. B. C, c. 9, s. 3. 177 7, c. 115, s. 8. Attorneys before they shall be admitted to practice law shall, in open court before the judges thereof, take the oath prescribed for attorneys, and also the oaths of allegi- ance to the state, and to support the constitution of the United States, prescribed for aU public officers; and, upon such qualification had, and oath taken, may act as attor- neys during their good behavior. Sec. 20. Tax on attorney's license. B. C, c. 99, s. 4. Resolution of 1872-'3. There shaU be a tax of twenty dollars upon each license 8 ATTOENEYS AT LAW. [Chap. 4. to an attorney to practice law in the courts of the state, to be paid at the time of obtaining hcense, to the clerk of the supreme court, and he shall apply the same as prescribed in the chapter of this code, entitled "Public Libraries." The clerk shall be entitled to six per cent, for receiving and applying said money. Sec. 21. To pay a tax for license. B. C, c. 9, s. 4. 1806, c. 698. No attorney shall be permitted to practice until he shall produce the receipt of the clerk, showing that he has paid the tax for his license. Sec. 22. To pay cost.s of suit dismissed for his failure to file a complaint. R. C, c. 9, s. 5. 1786, c. 253, s. 6. When a plaintiff shall be' compelled to pay the costs of his suit, in consequence of a failure on the part of his at- torney to file his complaint in proper time, he may war- rant such attorney for all the costs by him so jmid, and the receipt of the clerk may be given in evidence in sup- port of such claim. Itobbins and Jackson, ex parte, 63-309. Sec. 23. Guilty of fraud, to pay double damages. R. C, c. 9, s. 6. 1743, c. 37. If any attorney shall commit any fraudulent practice, he shall be liable in an action to the party injured, and on the verdict passing against him, judgment shall be given for the plaintiff to recover double damages. Egerlon v. Logan, 81-172. Sec. 24. .Judgment against attorney ior wilful fail.ire to pay over money collected for client upon demand. 1881, e. 129, s. 1. Any attorney into whose hands shall be placed for col- lection any promissory note, bond, account, chose in ac- tion, writing obligatory or any claim calling for the pay- ment of money, who shall collect the same, and, upon the demand of his client, wilfully fail to pay over tlie amount ..so collected, shall, upon the ascertainment of the fact by jury, have judgment taken against him for the amount of his delinquency together with interest on the amount of the judgment until the same shall be paid. See. 25. To be debarred for such failure upon notice .and production of the judgment. 1881, c. 129, s. 2. Any attorney who shall wilfully fail as aforesaid to pay Chap. 4.] ATTORNEYS AT LAW. 9 over on demand to his client any moneys which may be due as above set forth, and against whom judgment has been taken as prescribed in the preceding section, shall, if such judgment against him be not paid off in nmety days from its rendition be ipso facto debarred from prac- ticing in any courts of the state. Sec. 26. Attorney not to be debarred except, &c. 1870-'l, c. 216, s. 4. No person who shall have been duly hcensed to practice law as an attorney shall be debarred or deprived of his license and right so to practice law either permanently or temporarily, unless he shall have been convicted, or in open court confessed himself guilty of some criminal offence, showing him to be unfit to be trusted in the dis- charge of the duties of his profession, and unless he shall be debarred according to the two preceding sections and of the succeeding section. Ex parte Schenck, 65-353. Sec. 27. Justices of the peace not to practice as attorneys, 1870-'l, c. yo, s. 1. 1883, c. 406. It shall not be lawful for any attorney at law or justice of the peace to practice law as an attorney in any of the judicial courts held for the county wherein they hold the office of county commissioner or justice of the peace. And any person offending against this section shall be guilty of a misdemeanor, and, upon conviction, be fined at the discretion of the court not less than two hundred dollars; and bv the judgment of the coui-t may be dis- missed from the practice of law as an attorney, and be removed from the office of justice of the peace. See. 28. Clerks ofConrts forbidden to practice law. 1871 -'2, c. 120 s. 1. 1880, c. 43. It shall not be lawful for any deputy or assistant clerk of the superior court clerk of any county to practice law as an attorney in any of the judicial courts held for the county in which he performs the duties of a deputy or assistant cleilt as aforesaid. Any person offending against this section shall be guilty of a misdemeanor, and be find at the discretion of the court, not less than two hundred dollars. Sec. 29. Power of .attorney to be produced and filed by attorney, if required ; if necessary to retain the power, what to be done. R. C, c. 31, s. 57 (16). 1 844, c. 13. Every attorney who shall claim to enter an appearance 10 ATTOENEYS AT LAW. [Chap. 4. for any person shall, upon being required so to do, pro- duce and file in the clerk's office of the court, in which he shall claim to enter an appearance, a power or authority to that effect signed by the persons or some one of them for whom he is about to enter an appearance, or by some person duly authorized in that behalf, otherwise he shall not be allowed so to do: Provided, that when any attorney shall claim to enter an appearance by virtue of a letter to him directed, (whether such letter purport a general or particular employment,) and it shall be necessary for him to retain the letter in his own possession, he shall, on the production of said letter setting forth such employment, be allowed to enter his appearance, and the clerk shall note to that effect upon the docket. Day V. Adams, 63 — 254; New Berne v. Jones, 63—606; Alspaugh v. Joues, 64 — 29; Petteway v. Dawson, 64 — 450; Reese v. Reese, 66 — 377; University V. Lassiter, 83 — 38; Hollingsworlh v. Harman, 83 — 153; Koonce V. Brittain, 84—221. Sec. 30. Right of attorney to speak. K. C, c. 31, S. 57, par. 15. 1874-'5,c. 114, Any attorney appearing in any civil or criminal action shall be entitled to address the court or the jury for such a space of time as in his opinion may be necessary for the proper development and presentation of his case; and in jury trials he may argue to the jury the whole case as well of law as of fact. Leach v. Strange, 3 Hawks, 601 ; Grice v. RieUs, 3 Dcv., 63: Greenlee v. McDowell, 4 Irod. Eq., 481 ; Potts vs. Francis, 8 Ired. Eq.. 300; Walton v. Sugg, Pbil., 98; Keslcr v. Hall, 64—00; Ex parte Scbenck, 65—353; State V. Williams, 65—505; Kane v. Haywood, 66-1; Moye v. Cogdell, 69—93; Caldwell v. Beatly. 69—365; Mordecai v. Devereux, 74—073; State v. Mil- ler, 75—73; Davis v. Hill, 75—324; State v. Smallwood, 78—500; Coble V. Coble, 79—589; State v. Sykes, 79—618; York v. Merritt, 80-385; Rogers v. McKenzie, 81—164; State v. Braswell, 82—693; Horab v. Knox, 87-483. Chap. 5.] BASTAEDY. 11 CHAPTER FIVE. BASTAEDY. Section. 31. Justices of the peace to have ex- clusive onginal jurisdiction; warrant issued upon complaint of woman or affidavit of county commissioners. 32. Proceedings; warrant issued for woman; warrant for putative father; issue of paternity; ap- peal, &c. 33. Upon appeal, parties and wit- nesses to be recognized; puta- tive father making default; is- sue to be tried. 34. Upon issue of paternity, judge or justice to continue the case if lie sees fit, until woman is deliv- ered; in the meanlime, to recog- nize defendant with surety for his appearance. Section. 35. Fine to be ten dollars, and allow- ance not to exceed fifty dollars. Examinations to be taken within tliree years. 37. Execution may issue for main- tenance. 38. In certain cases, putative fattier may be committed to house of correction, or instead thereof apprenticed. 39. Illegitimate children may be legit- imated by superior court or judge. 40. Effects of such legitimation; le- gitimate in all respects as to father. Sec. 31. Justices of the peace to have exclusive original jurisdiction; warrant issued upon complaint of woman or affidavit of county commissioners. 1879, c. 93, s. 2, 1879, c. 116. Justices of the peace of the several counties shall have exclusive original jurisdiction to issue, try and determine all proceedings in cases of bastardy in their respective counties. A warrant in bastardy shall be issued only, upon the voluntary afBdavit and complaint of the mother of the bastard; or, upon the affidavit of one of the county commissioners, setting forth the fact that the bastard is likely to become a county charge. Slate V. Collins, 85—511; State v. Wilkie, 85—513; State v. Crouse, 86—617. 12 BASTAEDY, [Ch-^p. 5. Sec. 32. Proceeding's; ^varrant issued for woman; warrant for putative father; issue of paternity; appeal, &c. R. C. c. 13, ss. 1, 4. 1741, c. 30, s. 10. 1799, c. 531, s. 2. 1832, c. lO. 1832, c. 17. 1850, c. 14. 1879, c. 92, s. 2. 1879, c. IIC. When complaint is made on affidavit by one of the county commissioners as set forth in the preceding sec- tion, to any justice of the peace of the county in which the woman resides, that any single woman within his county is big with child, or delivered of a child or children, he may cause her to be brought before him, or any other justice of the county, to be examined upon oath respect-, ing the father; and if she shall refuse to declare the father, she shall pay a fine of five dollars, and give a bond payable to the state, with sufficient surety, to keep such child or children from being chargeable to the county, otherwise slie shall be committed to prison until she shall declare the same, or pay the fine aforesaid and give such bond; but if such woman shall, upon oath, accuse any man of being the father of such child or children, or if proceedings have been instituted upon her own affidavit and complaint, she shall accuse any man of being the father of such child or children, the justice shall cause him to be brought before some justice of the peace of such county to answer the charge; and, if he shall, upon oath, deny that he is the father of such cliild or children, the justice shall proceed to tiy the issue of pa- ternity, and if it shall be found that he is the father of the child or children, or if he shall not deny upon oatli that he is the father of the child or children, then he shall stand charged with the maintenance thereof, as the court may order, and shall give bond, with sufficient surety, payable to the state, to perform said order, and to in- demnify the county where such child or children shall be born, from cliarges for his or their maintenance, and may be committed to prison until he find surety for the same, and shall be liable for the costs of the issue or proceeding, and from this judgment and find- ing, the affiant, the woman, or the defendant, may ap- peal to the next term of the superior court of the count}', where the trial is to be had de novo. And upon tlie trial of the issue, whetlier before the justice or at term, the examination of the woman, as aforesaid, taken and returned, shall be presumptive evidence against the ])er- son accused, subject to be rebutted by other testimony which maybe introduced by the defendant; and, if the jury at term shall find that the i^erson accused is tlie Chap. 5.] BASTARDY. 13 father of the child or children, then the judge shall make the order for the mainteuance and for costs of proceed- ing, and shall take bond from the defendant and his sure- ties for the maintenance of the child or children, and to indemnify the county, and pay the costs; and, in defaiilt thereof, may imprison the defendant. If the putative father shall escape or be in any other county out of the jurisdiction of such justice issuing the warrant, it shall be issued, endorsed, executed and returned as provided in "warrants in criminal actions. AVilkie v. West, 1 Mur., 319; State v. Barrow, 3 Mur., 1'21; State v. Pot- away, 3 Hawks, 623; State v. Carson, 2 D. &B., 36S; State v. Harsljaw, 4 D. & B. , 371 ; State v. Robeson, 3 Ired. , 46; State v. Ledbelter. 4 Ired., 243; State V. Thompson, 4 Ired., 484; Stale v. Palton, 5 Ired., 180; State v. Lee, 7 Ired., 365; State v. Cordon, Sired., 179; State v. Long, 9 Ired., 488; Stale V.Wilson, 10 Ired., 131; State v. Roberts, 10 Ired ., 350; Statev. Haithcock, 11 Ired., 33; State v. Jenkins, 13 Ired., 131; Statev. Ellis, 13 Ired., 264; State V. Auman, 13 Ired., 241; Statev. Floyd, 13 Ired., 383; Statev. Heim-.n, 13 Ired., 503; State v. Pate, Busk, 344; State v. Brown, 1 Jon., 1-29; Adams v. Pate, 3 Jon., 14; State v. Thompson, 3 Jon., 365; Ward v. Boll, 7 Jon., 79; Clements v. Durham's Adm'rs, 7 Jon., 100; State v. Henderson, Phil., 329; Stale v. Martin, Phil., 326; Slate v. Allison, Phil., 346; State v. Elam', Phil., 460; Statev. Palin, 63—471; State v. Waldrop, 63—507; State V McQuaig, 63-550; State v. Mcintosh, 64-607; Statev. Hales, 65-244; State V. Beatty, 66— 648; State v. AVoodruff, 67— 89; Slate v. Broadway, 69-411; State v. Green, 71-173; State v. Higgins, 73-226; State v. Hickerson, 72-421; State v. Beasley, 75-211; State v. Rose, 75-239; State V. Bennett, 75-305; Warlick v. White, 7G-175; State v. Britt, 78—439; State v. Rogers, 79—609; State v. Price, 81—516; State v. Bryan, 83— 611 i State v. Parish, 83—613; State v. Collins, 85—511; State v. Wilkie, 85—513; State v. Ingram, 85—515; Slate v. Crouse, 86—617. Sec. 33. Upon appeal parties and witnesses to be recog- nized; pntative lather making default, issue to be tried. K. C, c. 13, s. 3. 1799, c. 531, s. 1. When an appeal shall be taken as provided for in the preceding section, the justice shall recognize the woman, and the person accused of being the father of the child or children, Avith sufficient surety, for the appearance of such woman and putative fatlier at the next term of the superior court for the county, and to abide by. and perform the order of the court; said justice shall also recognize the witnesses to appear at said superioi court, and shall return to said court the original papers m the proceeding and a transcript of his proceedings, as re- quired in other cases of appeal. If the putative father fails to appear, unless for good cause shoAvn, the judge 14: BASTARDY. [Chap. 5. shall direct the issue of paternity to be tried, and if the issues be found against the person accused, he shall order a capias or attachment to be issued for the father, and may also enter up judgment against the father and bis surety upon his recognizance. Sec. 34. Upon issue of paternity, judge or justice to continue the case if lie sees fit until woman is de- livered ; in the meantime to recognize defendant with surety for his appearance. K. C, c. 12, s. 2. 1741, c. 30, s. 11. 1799, c. 531, s. 2. 1850, c. 14. When the judge or justice trying the issue of paternity, as the case maybe, shall deem it proper, he may continue the case until the woman shall be delivered of the child; but when a continuance is granted, the court shall recog- nize the person accused of being the father of the child with surety for his appearance either at the next term of the court or at a time to be fixed by the justice granting the continuance, which shall be after the delivery of the woman. State V. Green, 71—172. , Sec. 35. Fine to he ten dollars, and allowance not to exceed fifty dollars. 1879, c. 92, s. 2. When the issue of paternity shall be found against the putative father, or when he admits the paternity, he shall be fined by the judge or justice not exceeding the sum of ten dollars, which shall go to the school fund of the county, and the court shall make an allowance to the woman not exceeding the sum of fifty dollars, to be paid in such instalments as the judge or justice shall see fit, and he shall give bond to indemnify the county as pre- scribed in section thirty-two; aud in default of such pay- ment he shall be committed to prison. State V. Harshaw, 4 D. & B., 371 ; State v. Ellis, 13 Ired.. 264. Sec. 36. Examinations to be taken within three years after birth. R. C, c. 12, s. 6. 1814, c. 871, s. 1. All examinations upon oath to charge any man with being the father of a bastard child, shall be taken within three years next after the birth of the child, and not after. Sec. 37. Execution may issue for maintenance. R. C, c. 12, s. 7, 1799, c. 531, s. 3. When the judge or justice shall charge the father of a bastard child with its maintenance, and the father shall neglect to pay the same, then the judge or justice, notice Chap. 5.] BASTAEDY. 15 being served on the defendant at least ten days before the return day stated in the notice, or such notice being returned by the sheriff or constable that the defendant is not to be found, may order an execution against the goods, chattels, lands and tenements of the father, for such sum as the court shall adjudge sufficient for the maintenance of the bastard child: Provided, that the party aggrieved by such non-payment shall apply for the same. McPherson v. McCoy, 3 Dev., 891; Shaw v. Stewart, 1 D. & B., 412; State V. Beatty, 66—648. Sec. 38. In certain cases putative father may l>e committed to house of correction, or instead thereof appren- ticed. 1866-'7, c. 10. In all cases arising under this cJiapter, when the puta- tive father shall be charged with costs or the payment of money for the support of a bastard child, and such puta- tive father shall, by law, be subject to be committed to prison in default of paying the same, it shall be compe- tent for the court to sentence such putative father to the house of correction for such time, not exceeding twelve months, as the court may deem proper: Provided, i\\^t such person or putative father, at his discretion, instead of being committed to prison or to the house of correc- tion, may bind himself as an apprentice to any person whom he may select, for such time and at such price as the court may direct. The binding shall be by indenture in open court; and the price obtained shall be paid to the county treasurer. On the indenture being signed by the presiding judge of the court and by the master receiving such apprentice, the person thus bound shall be treated and regarded as an apprentice in all matters, except edu- cation. Sec. 39. Illegitimate children may be legitimated by su- perior court at term. B. C. c. 12, s. 8. 1829, c. 19, s. 1. The putative father of any illegitimate child may ap- ply by petition in writing, to the superior court of the county in which the father may reside, praying that such may child be declared legitimate; and if it shall appear that the petitioner is reputed the father of the child, the court may thereupon declare and pronounce the child legiti- mated; and the clerk shall record the decree. Drake v. Drake, 4 D'jv., 110; Perry v, Newsom, 1 Ired. Eq., 28; Craige V. Neely, 6 Jon., 170. 16 BILLS, BONDS & PROMISSORY NOTES [Chap. C. Sec. 40. Effects of such legitimation; legitimate in all re- spects as to fatber. B. C, c. 12, s. 9. 1829, c. 1!), s. 3. The effect of such legitimation shall extend no further than to impose upon the father all the obligations winch fathers owe to their lawful children, and to enable the clild to inherit from the father only, his real estate, and also to entitle such child to the pei'sonal estate of his father, in the same manner as if he had been born in lawful wedlock; and in case of death and intestacy, the leal and personal estate of such child shall be transmit- ted and distributed according to the statute of descents and distribution, among those who would be his heirs and next of kin, incase he had been born in lawful wedlock. Ivey V. Granberry, 66 — 233. CHAPTER SIX. BILLS, BONDS AND PEOMISSOET NOTES, Section. 41. Bills, bonds, and notes for money negotiable as inland bills of ex- change ; indorsee may sue "when the obligee may sue. 43. Orders ill writing; drawer or ac- ceptor liable thereon; protest and notice thereof before action against drawer. 43. Daj'sof grace on bill, &c. ; except those payable on demand. 44. Interest on bills, &c. ; when to accrue. 45. Bills, &c., payable on demand to bear interest. Sectiox. 46. Contracts for delivery of articles bear interest as moneyed con- tracts. 47. Bills of exchange bear interest from time of payment. 48. Damages on protested bills of ex- change at various places. 49. Protest of notary, justice of peace, or clerk of a court of record, evidence of demand. 50. Indorsers of negotiable securities liable as sureties. 51. Bonds payable to clerk, <&c., for benefit of suitors, suable in name of state. Sec. 41. Bills, bonds, and notes for money negotiable as inland bills of exchange; indorsee may sue when The obligee may sue. 3, 4 Anne. c. 9., K. C, c. 13, s. 1. 1762, c. 70, s. 2. 178C,c. 248, s. 1. 1789, c. 314, s. 3. All notes signed by any person, body corporate, or by the servant or agent of any corporation, banker, mer- Chap. 6.] BILLS, BONDS & PROMISSORY NOTES. 17 chant or trader, who is, or shall be usually intrusted to sign such promissory notes for them, whereby such per- son body corporate, or the servant or agent of any cor- poration, banker, merchant, or trader, shall promise to pay pny person, body corporate, or the servant or agent of any corporation, banker, merchant, or trader, the money mentioned in such note, shall be construed to be, by virtue thereof, due and payable to such person, body corporate, or the servant or agent of any corporation, banker, merchant, or trader, to whom the same is made payable; and the pei-son, body corporate, or the servant or agent of any corporation, banker, merchant, or trader, to whom such money is payable, may maintain an action for the same, as thev might upon inland liills of exchange; and the same, as likewise all bonds, bills, and notes tor money, with or without seal, and expressed, or not, to be payable to order and for value received, may be assign- able over in like manner as inland bills of exchange are by custom of merchants in England: and the person, body corporate, or the servant or agent of any corpora- tion, banker, merchant, or trader, to whom such promis- sory note, bill, bond, or sealed note is assigned or indorsed, may maintain an action against the person, body corpor- ate, or the servant or agent of any corporation, banker, merchant, or trader, who shall have signed such promis- sory note, bond, bill, or sealed note, or any who shall have indorsed the same, as in cases of inland bills of ex- change: Provided, that the indorsee or assignee of any bill, bond, or note, undersea!, may maintain an action on the' same in his own name, as indorsee or assignee, pro- vided the original obligee could have maintained an action on the same bill, bond, or note with seal. Jamieson V. Farr, 1 Hay., 209 (183); Tindall v. Johnston, 1 Hay., 428"(372). Campbell V. Mumford, 1 Hay., 459 (398); Hodges v. Clinton, Mar., 79; Neilv. New Berne, 1 Mur., 133; Jones v. Person, 3 Hawks, 269; Goodloe V. Taylor, 3 Hawks, 458; Lawrence v. Mabry, 3 Dev.. 473; Hatcher v. Mc- Morinc, 3'Dev.,228; Hatcher v. McMorino, 4 Dev., 123; Purtel v. Moreheid. 2 D. &B., 239; Haywood v. McNair, 3 D. & B., 283; Elliott v. Smither- nian, 3 D. & B., 338; Alexander v. Oaks, 2D. & B., 513; Dawson-v. Pett- way! 4 D. & B., 396; French v. Barney, 1 Ired., 219; Bloom v. Bowman, 3 Ired'., 338; Hubbard v. Williamson, 4 Ired., 266; Hubbard v. Williamson, 5 Ired.', 397'; Roddick v. Jones, 6 Ired., 107; Phelps v. Call, 7 Ired., 363; Ford V. Vandyke, 11 Ired., 237; Marth v. Brooks, 11 Ired., 409; Ormoud v. Moye, 11 Ired., 564. Hoke v. Carter, 12 Ired., 334; Bank v. Bank, 13 Ired., 75; Respass v. Latham, Busb., 138; Dickey v. Johnson, Busb., 405; McCall v. Clayton, Busb., 423; Martin v. Hayes, Busb., 433; Knight v. R. R. Co., 1 Jon., 357; Nichols v. Pool, 3 Jon., 23; Gregory v. Dozier, 6 18 BILLS, BONDS & PROMISSORY NOTES. [Chap. 6. Jon., 4; Grace v. Hannah, 6 Jon., 94; Elliot v.White, 6 Jon., 98; McLean v. McDugald, 8 Jon., 383; Johnson v. Olive, Winst..,215; Parker v. Stallings, Phil., 590; Baker v. Robinson, 63—191; Ballentine v. HoUoman, 63—475; Whitsill V. Mebane, 64—345; Davis v. Morgan, 64^570; Sutton v. Owen, 65—124; Pace v. Roberson, 65—550; Ransom v. Smith, 66—537; Blackmer V. Phillips, 67—340; Blount v. Windley, 08—1; Glend v. Bank, 70—191; Burroughs v. Bank, 70—283; Crawford v. Lytic, 70—385; Burden V. Southerland, 70—538; Abrams v. Cuieton, 74—523; Etheridge v. Vcnoy. 74__800; Milter v. Tharel, 75—148; Johnson v. Henderson, 76—227; Meadows v. Cozart, 76— 450 ; Belo v. Comrs., 76 — 489; Kahnweilerv. Ander- son, 78—133; Henderson v. Lemly, 79—169; Brown v. Kinsey, 81—245; Hill V. Shit-Ids, 81—250; Jackson v. Love, 82 — 405; Bank v. Bynum, 84— 24; Pate v. Brown, 85—106; Havens v. Potts, 86—31; Tredwell v. Blount, 86—38; Pugh v. Grant, 86—39; Roberson v. Dunn, 87—191. Sec. 42. Orders in writing-; drawer or acceptor liable thereon, protest and notice thereof before action against drawer. R. C, c. 13, s. 2. 1762, c. 70, ss. 3, 4. When any person, by order in writing signed by him, shall direct the payment of any sum of money in the hands or possession of any other person, to the bearer, or any person whatsoever, the money therein specified shall, by virtue thereof, be due and payable to such person to whom the same is drawn payable, and may be put in suit against him who shall draw the same, or against the person on whom the same shall be drawn, after the ac- ceptance thereof by him, by whom the same shall be made payable, and damages may be recovered: Provided, that none shall commence any action against him who shall give such order for the money therein mentioned, before the same shaU have been first protested for non- acceptance, and notice given thereof to the drawer; and if suit shall be brought on such order before notice and refusal to pay as aforesaid, the plaintiff shall be non- suited. —V. Stanton, 1 Hay., 312 (271); Bank v. Seawell, 2 Hawks, 560; Bank V. Lane, 3 Hawks, 453; Taribault v. Ely, 2 Dev., 67; Bis&ell v. Bozman, 2 Dev. Bq„ 154; Jordan v. Parkington, 4 Dev., 357; Spear and Palton v. Atkinson, 1 Ired., 262; Hubbard v. Troy, 2 Ired., 134; Moore v. Tucker, 3 Ired., 347; Denny V. Palmer, 5 Ired., 610; Ruuyon v. Montfort, Busb., 371; Wiley v. Brice, 70 — 422; Love v. .Johnston, 72 — 415; Folk v. Howard, 72—527; Long v. Stephenson, 72—569; Mauney v. Coit. 80—300; Cedar Falls Co. V. Wallace, 83—325; Banks v. Pinkers, 83—377; Bank v. Alexander, 84—30; Witlkowsky v. Smith, 84—671. Sec. 4.*?. Days of grace on bills, &c., except those payable on demand. R. C, c. 13, s. 3. 1848, c. 9. All bills of exchange payable within the state, at sight, Chap. 6.] BILLS, BONDS & PEOMISSORY NOTES. 19 or at a future day certain, in which there is no express stipulation to the contrary, shall be entitled to days of grace as the same are allowed by the custom of merchants on foreign bills of exchange payable at the expn-ation of a certain period after date or sight: Provided, that no days of grace shall be allowed on any bill of exchange, promissory note, or draft payable on demand. Jarvis v. McMaiu and Simmons, 3 Hawks, 10; Fields v. Mallett, 3 Hawks, 465. Sec. 44. Interest on bills, &c.; when to accrue. B. C, c. 13, s. 4. 1786, c. 348, s. 3. All bonds, bills, notes, bills of exchange, liquidated and settled accounts, shall bear interest from the tune they become due, provided such Uquidated and settled accounts be signed by the debtor, unless it be specially expressed that interest is not to accrue until a time mentioned in the said writings or securities. Caldwell v. Rodman, 5 Jon., 139; Yellowly v. Comrs. 78—164. Sec. 45. Bills, &c., payable on demand to bear interest. B. C, c. 13, s. 5. 178G, c.'248, s. 4. All bills, bonds, or notes payable on demand, shall be held and deemed to be due when demandable by the creditor, and shall bear interest from the time they are demandable, unless otherwise expressed. Ormand v. Moye, 11 Iix-d., 564; Caldwell v. Rodman, 5 Jon., 139. Sec. 46. Contracts for delivery of articles bear interest as moneyed contracts. K. C, c. 13, s. 6. 1786, c. 248, s. 5. All securities for the payment or delivery of specific articles shall bear interest as moneyed contracts; and the articles shall be rated by the jury at the time they become due. Sec. 47. Bills of exchange bear interest from time of pay- ment. K. C, c. 13. s. 7, 1828, c. 3, s. 1. Bills of exchange which shall be drawn or indorsed in the state, and shall be protested, shall carry interest, not from the date thereof, but from the time of payment therein mentioned. Sec. 48. Damages on protested bills of exchange at various places. R. C, c. 13, s. 8; 1741, c. 31; 1796, c. 464, ss. 1, 2. 1828 c. 2, s. 2; 1840, c. 1. The damages on such protested bills shall be as follows: 20 BILLS, BONDS & PROMISSORY NOTES. [Chap. 6. that is to say, where the bill shall be drawn or indorsed in this state upon any person or corporation in any other of the United States," or in any of the territories thereof, three per cent, upon the principal sum; where such bill shall be drawn or indorsed upon any person or corpora- tion in any other place in North America (excepting the noi-th-west coast of America), or in any of the West India or Bahama Islands, ten per cent, upon the principal sum; where such bill shall be drawn or indorsed upon anv person or corporation in the Island of Madeira, the Canaries, the Azores, the Cape de Verd Islands, or in any other state or place in Europe or South America, fifteen per cent, on the principal sum; and where such bill shall be drawn or indorsed on any person or corporation in any other part of the world, twenty per cent, on the principal sum. Runyon v. Latham, 5 Ired., 551. Sec. 49. Protest of notary, justice of peace, or clerk of a court of record, evidence of demand. R. C, c. 13, s. 9. 1812, c. 844. 1819, c. 1003. 1826, c. 15. In all actions wherein it may be necessary to prove a demand upon, or notice to the drawer, or indorser of a bill of exchange, or promissory note, or other negotiable security; or where it maybe necessary to prove a demand upon the acceptor or drawee of a bill of exchange, in any action against the drawer or indorser thereof, the protest of a notary public, or for want of a notary public, of a justice of the peace or clerk of a court of record, setting forth that he made such demand, or gave such notice, and the manner in which he did the same, shall he prima facia evidence that such demand was made, or notice given in manner set forth in the protest. Elliot V. While, 6 Jon., 98. Sec. 50. Indorsers of negotiable securities liable as sureties. R. C, c. 13. s. lO. 1827, c. 2. Whenever any bill, or negotiable bond, or pi-oraissory note, shall be ilidoised, such indorsement, unless it be otherwise plainly expressed therein, shall render the in- dorser liable as surety to any holder of such bill, bond, or promissory note; and no demand on the maker shall be necessary previous to an action against the indorser: Provided, that nothing herein shall in any respect apply to bills of exchange, inland or foreign. Hatcher v. McMoriue, 4 Dcv,, 123; Williams v. Irvin, 3 D. & B., 74; lugersoU v. Long, 4 D. & B., 293; Topping v. Blount, 11 Ired.. 62; Nichols Chap. 7.] BURNING WOODS. 21 V. Pool, 2 Jon., 23; Johnsonv. Hooker, 2 Jon., 29; Crawford v. Lytle, 70— 385; Henderson v. Lemly, 79—109; HofEman v. Moore, 83—313. Sec. 51. Bonds payable to clerk, &c., for benefit of suitors, suable in name of state. R. C, c. 13, s. 11. Bonds and other obligations taken in the course of any proceeding in law, under the direction of the court, and payable to any clerk, commissioner, or officer of the court, for the benefit of the suitors in the cause, or others having an interest in such obligation, may be put in suit in the name of the state. Gotten ex parte, Phil. Eq., 79. CHAPTER SEVEN. BUKNING WOODS. Section. 52. No person to fire woods except his own, and notice thereof to be given. 53. Penalty firty dollars; guilty of a misdemeanor. Section. 54. Wagoners not extinguishing camp fires liable to a penalty and amount of damages. Sec. 52. No person to fire woods except his own, and no- tice thereof to be given. K. C, c. 16, s. 1. 1777, c. 123, s. 2. No person shall set fire to any woods, except it be his own property; nor in that case, without first giving no- tice in writing to all persons owning lands adjoming to the woodlands intended to be fired, at least two days be fore the time of firing such woods, and also taking effect- ual care to extinguish such fire before it shall reach any vacant or patented lands near to or adjoining the lands so fired. Wright V. Tarborough, N. C. T. R., 263, (687); Tyson v. Rasberry, 1 Hawks. 60; Averitt v. Murrell, 4 Jon., 322; Hall v. Cranford, 5 Jon., 3; Garrett v. Freeman, 5 Jon., 78; Roberson v. Kirby, 7 Jon., 477; Achenbach V. Johnston. 84—264. 22 BURNT AND LOST RECORDS. [Chap. 8. Sec. 53. Penalty fifty dollars; guilty of a misdemeanor. K. C, c. 16, s. 2. 1777, c. 133, s. 1. Every person wilfully oflfending against the preceding section shall, for every such offence, forfeit and pay to any person who will sue for the same fifty dollars, and he liable to any one injured in an action, and shall moreover be guilty of a misdemeanor. Robeison v. Kiiby, 7 Jon., 477. Sec. 54. Wagoners not e.vtingiilshing camp-fires liable to a penalty and amount of damages. 1865-'0, c. 38. If any wagoner or other person encamping in the open air shall leave his camp without totally extinguishuig his camp-fire, he shall be liable to a penalty of ten dollars, to be recovered by any person suing for the same, and shall be further liable for the full amount of damages that any individual may sustain by reason of any fire gettmg out from said camp, to be recovered by action m the superior court for the county in which said camp may be situated, or in which said damage may be done: Provided, that this section shall apply only to the counties of Cumber- land, Harnett, Bladen, Moore, Hertford and Chowan. CHAPTER EIGHT. BUKNT AND LOST EECOEDS. SrocTioN. 5-5. Copies of burnt or destroyed rec- ords certified by proper officer, to be received in evidence. 56. How origiual papers may be again recorded or registered; conveyances of real estate lost, bow re-surveyed and estate de- clared, and its effect. 57. Copies of lost will may be ad- milted to probate. 58. Copies of wills under certificate of clerk of the superior court shall be competent evidence; letters testamentary to issue. Section. 59. Contents of destroyed wills, how established. 60. Dcstroyi'd judgments, how per- petuated. 61. Color of title, how determiiif d. 62. Actions on destroyed official bonds, how nroseculed. 63. Destroyed witness tickets, how made good. 64. Lost conveyances, how replaced. 65. Records of any court in, or out of the state admissible, to prove existence and contents of wills, deeds, &c., destroyed. Chap. 8.] BUENT AND LOST RECORDS. 23 Section. 66. Copies of deeds, &c., mentioned in preceding section may be re- corded. 07. Rules to be observed in petitions and motions under this chapter. 68. Records and registries under this chapter to have tlie same force and effect as original registries. 09. "Written evidence prior to de- Section. struction of said recorded deed, registry, will, &c., to be prima facie evidence of its existence. 70. Such deeds and conveyances to be received as prima facie evi- dence of the recitals. 71. To what records, &c., the pro- visions of this chapter are ap. plicable. Sec. 55. Copies of burnt or destroyed records certified by the proper ofllcer, to be received in evidence. 1866, c. 41, ss. 1, 2. Whenever the office of any registry shall have been, or may be destroyed by fire or other accident, and the records and other papers thereof be burnt or destroyed, the copies of all such proceedings, instruments and papers as are of record or registry, certified by the proper officer, though without the seal of office, shall be received in evi- dence whenever the original or duly certified exemplifi- cations would be. Such copies, when the court shall be satisfied of their genuineness, may be ordered to be re- corded or registered. Sec. 56. How original papers may be again recorded or registered ; conveyances of real estate lost, how re- surveyed and estate declared, and its effect. 1866, c. 41, s. 3. All original papers, once admitted to record or registry, whereof the record or registry is destroyed, may, on mo- tion, be again recorded or registered, on such proof as the court shall require. Whenever any conveyance of real estate, or any right or interest therein shall have been lost, the registry thereof being also destroyed, any person clauiiing under the same may cause the bounda- ries thereof tobe established in the manner provided for processioning land, or he may proceed in the following manner to estabhsh both the boundaries and nature of his estate: He shall file his petition before the clerk of the superior court, setting forth the location and bound- aries of his land, whose land it adjoins, and the estate claimed therein, and praying to have his own boundaries established, and the nature of his estate declared. All persons claiming any estate in the premises, and those whose lands adjoin, shall be notified of the proceedings, and thereupon, unless they or some of them shall, by 24 BUENT AND LOST EECORDS. [Chap. 8. answer on oath, deny the truth of the matters alleged, or some of them, the clerk of the superior court shall order a surveyor to ran and designate the boundaries of the petitioner's land, return his survey, with the plot thereof to court, which, when confirmed, shall, with the declara- tion of the court, as to the nature of the estate of the pe- titioner, be registered and have, as to the persons notified, the effect of a deed for the same, executed by the person possessed of the same, next before the petitioner: Pro- vided, that in all cases wherein the process of surveying shall be disputed, and the surveyor shall be forbidden to proceed by any jjerson interested, the same proceedings shall be had as in like cases of processioning land. The peti- tioner shall set forth the whole substance of the convey- ance as truly and specifically as he can, and if any of the persons notified shall, by answer, deny the truth thereof, the clerk of the superior court shall transfer the issues of fact to the superior court at term, to be tried as other issues of fact are requii'ed by law to be tried, and on their verdict and the pleadings, the judge shall adjudge the rights of the parties, and declare the contents of the deed, if any deed be found by the jury, and allow the registra- tion of such judgment and declaration, which shall have the force and effect of a deed. Fleming v. Roberts, 77 — 415; Cowles v. Harding, 79 — 577. Sec. 57. Copies of lost will may l>e admitted to probate. 1868-'9, c. 160, s. 1. In all counties where the original wills on file in the office of clerks of superior courts, and will-books contain- ing copies, have been or may be lost or destroyed, if the executor or any other person has preserved a copy of a will, (the origiiial being so lost or destroyed,) with a cer- tificate appt^juled, signed by a clerk of the court in whose office the will was, or is requu-ed to be filed, and stating tliat said copy is a correct one, such copy may be ad- mitted to proliate, under the same rules and in the same manner as now prescribed by law for proving wills; and the proceedings in such cases shall be the same as though s\ich copy was the original offered for the first time for probate, except that the clerk Avho signed such certificate shall, on oath, acknowledge his signature, or in case it shall appear that said clei'k has died or left the state, then liis signature sliaJlbe proven by a competent witness; and the witness or witnesses to the original, who may be ex- amined, shall be required to swear that he or they signed in the presence of the testator and by his direction a Chap. 8.] BURNT AND LOST EECORDS. 25 paper writing purporting to be his last will and tes- tament. Sec. 58. Copies of wills under certificate of clerk of the superior court shall be competent evidence; letters testamentary to issue. 186S-'9, c, IGO, s. 2. In any action or proceeding at law, wherein it may be- come necessary to introduce such will to establish title, or for any other purpose, a copy of the will and of the record of the probate, with a certificate signed by the clerk of the superior court for the county where the will may be recorded, stating that said record and copy are full and correct, shall be admitted as competent evidence; and when a copy of a will shall have been admitted to probate, the clerk of the superior court shaU thereupon issue letters testamentary. Sec. 59. Contents of destroyed wills, how established. 1866, c. 41, s. 4. Any person desirous of establishing the contents of a will destroyed as aforesaid, there being no copy thereof, may file his petition in the office of the cleik of the superior court, setting forth the entire contents thereof, accoi'ding to the best of his knowledge, information and belief, and all persons having an interest under the same shall be made parties, and if the truth of such petition be denied, the issues of fact shall be transferred to the supe- rior court at term for trial by a jury, whether the will was recorded, and if so recorded, the contents thereof, and the declarations of the judge, shall be recorded as the will of the testator; any devisee or legatee shall be a competent witness as to the contents of every part of said Avill, except such as may concern his own interest in the same. Sec. 60. Destroyed judgments, how perpetuated. 1866, c. 41, s. 5. Every pei'son desirous of perpetuating the contents of any destroyed judgments, order or proceedings of court, or any paper admitted to record or registration, or di- rected to be filed for safe keeping, other than wills or conveyances of real estate, or some right or interest therein, or any deed or other instrument of writing, re- quired to be recorded or registered but not having been recorded or registered, it being competent to register or record said deed or other instrument at the time of its loss or destruction, may file his petition in the court hav- 2 26 BURNT A.ND LOST RECORDS. [Chap. 8. ing jurisdiction of like matters with the original pro- ceeding, setting forth the suhstance of the whole record, deed, proceeding, or paper, which he desires to per- petuate, and if, ou the hearing, the court shall declare the existence of such record, deed, or proceedmg, or paper at the time of the hurning of the office wherein the same was lodged or kept, or other destruction there- of, and that the same was there destroyed, and shall de- clare the contents thereof, such declaration shall be re- corded or registered, or filed, according to the nature of the paper destroyed. Sec. 61. Color of title, liow determined. 1866, c. 41, s. 6. Every person who shall have been in the continual, peaceable and quiet possession of land, tenements, or hereditaments, situated in the county, claiming, usmg and occupying them as his own, for the space of seven years, under "known boundaries, the title thereto being out of the state, shall be deemed to have been lawfully possessed, under color of title, of such estate therein as has been claimed by him during his possession, although he may exhibit no conveyance therefor: Provided, that such possession shall have commenced before the destruc- tion of the registry office, or other destruction as afore- said, and also that any such person, or any person claun- ing by, through or under him, will make affidavit and produce such proof as shall be satisfactory to the court that the possession was rightfully taken; and if taken under a written conveyance, that the registry thereof was destroyed by fire or other means, or was destroyed before registry as aforesaid, and that neither the original, nor any copy thereof, is in existence. Provided further, that such presumption shall net arise against /ernes co- vert, infants, persons of non-sane memory, and persons residing out of the state, who were such at the time of possession taken, and were not therefore barred, nor were so barred at the time of the burning of the office or other destruction. Hill V. Overton, 81—393. Sec. 62. Action on destroyed official bonds, how prose- cuted. 1866, c. 41, s. 7. Actions on official or other bonds lodged in any office which are destroyed with the registry thereof, may be prosecuted by petition against the principal and sureties Chap. 8.] BUENT AND LOST EECOEDS. 27 thereto, and tJie proceedings shall be as in the former coarts of equity. Sec. 63. Destroyed -wTltness tickets, liow made good. 18G0,c. 41, s. 8. The court having jurisdiction of the action may allow other witness tickets to be filed in place of such as may be destroyed, upon the oath of the witness or other satis- factory proof. Sec. 64. Lost conveyances, how replaced. 1866, c. 41, s.9. Where any conveyance executed by any person, sheriff, clerk and master, or commissioner of court has been lost, and registry thereof destroyed as aforesaid, and there is no copy thereof, such persons, whether in or out of of- fice, may execute another of like tenor and date, reciting therein that the same is a duplicate, and such deed shall be evidence of the facts therein recited, in all cases wherein the parties thereto are dead, or are incompetent witnesses to prove the same, to the extent as if it was the original conveyance. Sec. 66. Records of any court in or out of tlie state ad- missible to prove existence and contents of wills, deeds, &c., destroyed. 1866, c. 41, s. 10. The records of any court in or out of the state, and all transcripts of such records, and the exhibits filed there- with in any case, shall be admissible to prove the exist- ence and contents of all deeds, wills, conveyances, depo- sitions and other papers, copies whereof are therein set forth or exhibited in all cases where the records and reg- istry of such as were or ought to have been recorded and registered, or the originals of such as were not proper to be recorded or registered, have been destroyed as afore- said, although such transcripts or exhibits may have been informally certified; and when offered in evidence shall have the like effect as though the transcript or record was the record of the court whose records are de- stroyed, and the deeds, wills and conveyances, deposi- tions and other papers therein copied or therewith exhib- ited, were original. Sec. 66. Copies of deeds, &c., mentioned in preceding section may be recorded. 1866, c. 41, s. 11. The copies aforesaid of all such deeds, wills, convey- ances and other instruments proper to be recoi'ded or registered, as are mentioned in the preceding section, 28 BUENT AND LOST EECOEDS. [Chap. 8. may be recorded or registered on application to the clerk of the superior court, and due proof that the original thereof was genuine. Sec. 67. Rules to be observed in petitions and motions under this cliapter. 1866, c. 41, s. 12. 1874:-'5, c. 51. 1874:-'5, c. 234, s. 3. The following rules shall be observed in petitions and motions under this chapter: The facts stated m every petition or motion shall be verified by affidavit of the petitioner that they are true according to the best of his knowledge, information and belief; the instrument or paper sought to be established by any petition shall be fully set forth in its substance, and its precise language shall bp stated Avhen the same is remembered. All per- sons interested in tlie prayers of the petition or decree, shall be made parties. No petition to declare the con- tents of a deed or wiU, or any matter of record, shall be filed but within five years next after the loss or destruc- tion thereof: Provided, that infants, femes coverts, per- sons of non-sane memory and non-residents, may file such petition within one year after the disability is re- moved. Petitions to establish a record of any court shall be filed at term in the superior court of the county where the record is sought to be estabhshed. Other petitions may be filed in the office of the clerk of the superior court. The costs of every action under this chapter shall be paid as the court may decree. Appeals shall be allowed as in all other cases, and where the error alleged shall be an erroneous finding by the superior court at term, of a matter of fact, the same may be removed on appeal to the supreme court, and the proper ■judgments directed to be entered below. And it shall be presumed that any order or record of the court of pleas and quarter sessions, which was made and has been lost or destroyed, was made by a legally consti- tuted court, and the requisite number of justices, with- out naming said justices. Flemming v. Roberls, 77—415; Dail v. Sugg. 85—104. See. 68. Records and registries under this chapter to have the same force and eftcct as original registries. 1866, c. 41, s. 14. The records and registries allowed bv the court in pur- suance of this chapter shall have the same force and effect as original records and registries. Chap. 8.] BURNT AND LOST RECORDS. 29 Sec. 69. Written evidence prior to destruction of said re- corded deed, registry, will, &c., to be iirima facie evi- dence of its existence. 1871, c. 64,8.1. The recitals, reference to, or mention, of any decree, order, judgment or other record of any court of record of any county in which the court-house, or records of said courts, or both, have been destroyed by tire or otherwise, contained, recited or set forth in any deed of conveyance, paper writing, or other bona fide written evidence of title, executed prior to the destruction of the court-house and records of said county, by any executor or administrator with a will annexed, or by any clerk and master, superior court clerk, clerk of the court of pleas and quarter sessions, sheriff, or other officer, or commissioners appointed by either of said courts, and authorized by law to execute said deed or other paper writing, shall be deemed, taken and recognized as true in fact, and shall be prima facie evidence of the existence, validity and binding force of said decree, order, judg- ment or other record so referred to or recited in said deed, or paper writing, and shall be to all intents and purposes binding and valid against all persons mentioned or described in said instrument of writing, deed, &c., as purporting to be parties thereto, and against all persons who were parties to said decree, judgment, order or other record so referred to or recited, and against all per- sons claiming by, through or under them or either of them. Bail V. Sugg, 85—104. Sec. 70. Sucli deeds and conveyances to be received as prima facie evidence of tbe recitals. 1870-'71, c. 86, s. 2. Said deed of conveyance, or other paper writing, ex- ecuted as aforesaid, and registered according to law, shall be allowed to be read in any suit now pending or which may hereafter be instituted in any court of this state, as prima facie evidence of the existence and validity of the decree, judgment, order, or other record upon which the same purports to be founded, without any other or fur- ther restoration or re-instatement of said decree, order, judgment, or record, than is contained in this chapter. Dail V. Sugg, 85—104. 30 CLERKS OF THE SUPERIOR COURT. [Chap. 9. Sec. 71. To wliat records, &c., the provisions of this chap- ter are applicable. 1871-'2, c. 64, s. 2. 1874-'5, c. 254, s. 2. This chapter shall extend to records of any court which has been, or may be destroyed by fire or otherwise, and to any deed of conveyance, paper writing, or other bona fide evidence of title executed before the destruc- tion of said records. Bail V. Sugg, 85—104 CHAPTER NINE. CLERKS OF THE SUPEEIOR OOUET. Section. 72. Bond of clerk. ^ 73. Bond, how approved, &c. 74. Qualification of clerks. 75. May appoint deputies, &c. 76. Failure to give bond, &c. 77. Renewed annually; clerk to pro- duce receipts for all public moneys paid before renewing. 78. Clerks may resign. 79. Penalty for acting without qual- ifying. 80. Office, where to be kept, when to open. 81. To receive official papers, &c. 83. To keep record, &c. 83. Books to be kept by clerks. 84. Books to be furnished by board of commissioners. 85. Money judgments of clerk to be entered on judgment docket. 86. Papers in each action to be kept separate and filed together. 87. Clerks going out of office, and having failed to perform their duties, the court may cause them to be done, and recover the amount paid for such ser- vice. Section. 88. Solicitor to examine records. 89. Superior court clerk to certify to secretary of state names of appointees to fill vacancies in office of justice of the peace, &o. 90. To make annual rcport.s of all public funds which come into their hands. 91. To be approved and registered. 93. Failure to report. 93. The duties of clerk of the super- ior courts in relation to bills Of cost; clerks to insert detailed items. 94. Statement of costs to be made in thirty days. 95. Clerks to keep an itemized state- ment of all fines received by them, and to properly account for the same. 96. Fines. &c., to be paid to county treasurer within sixty days; treasurer to keep an itemized account, &c. 97. Certified statement of account to be filed with superior court clerk. Chap. 9.] CLERKS OF THE SUPERIOE COURT. 31 Section. 98. Fines, &c., heretofore collected, to be paid to tlie treasurer. 99. Fines, &o., appropriated to tlie common schools. 100. Day of issuing process to be noted thereon; sheriff to en- dorse day of receiving, &c. 101. Failure to perform duty a mis- demeanor. 103. OtEce of probate judge abol- ished. 103. Clerks of the superior court; their jurisdiction. 104. Disqualification to act. 105. Waiver of disqualification. 106. Removal of proceedings. 107. Commissioner appointed to audit accounts; approval of judge of superior court ; record made by clerk of superior court. 108. Enumeration of powers. 109. How party may appear. 110. Clerk not to act as attorney, &o. 111. Cli'rk must file papers. 112. Eecords to be kept by clerk. 113. Books to be f uruisbed by board of commissioners; to be in- dexed. Section. 114. Clerks required to keep open oflice for probate business. 11.5. Forfeiture of office for failure. 1 16. Issues of fact joined before the clerk to be transferred to the superior court ; appeals shall lie to the judge. 117. Lawful to deposit mortgage in lieu of prosecution bond. 118. Executors, &c., and officers may execute mortgage in lieu of bond. 119. Additional security may be re- quired. 130. Any person may execute mort- gage in lieu of bond ; proviso. 131. Affidavit of value required ia certain cases. 123. Clerk may deposit mortgage. 133. Punishment of the clerk of the superior court on conviction of an infamous crime. 134. Going out of office, to transfer records to successor; judge may give order for delivery of records, &c. Sec. 72. Bond of clerk. C. C. P., s. 137. At the first meeting of the board of commissioners of each county after the election or appointment of any clerk of a superior court it shall be the duty of the clerk to deliver to such commissioners a bond with sufficient sureties, to be approved by them, in a penalty of ten thousand dollars, payable to the state of North Carolina, and with a condition to be void, if he shall account for, and pay over, according to law, all moneys and effects which have come or may come into his hands, by virtue or color of his office, or under an order or detiree of a judge, even though such order or decree be void for want of jurisdiction or other irregularities, and shall diligently preserve and take care of all books, records, papers and property, which have come, or may come into his posses- sion, by virtue or color of his office, and shall in all things faithfully perform the duties of his office as they are, or thereafter shall be prescribed by law. Each surety shall 32 CLERKS OF THE SUPERIOE COURT. [Chap. 9 take and subscribe an oath, before the register of deeds, that he is worth a certain sum, which shall not be less than one thousand dollars over and above all his debts and liabilities and his homestead and personal property exemption, and the sum thus sworn to shall not be less in the aggi-egate than the penalty of the bond. Ex parte Daughtry, 6 Ired., 155; Wilmington v. Nutt, 78—177; Buck- man V. Com'rs, 80—121; Wilmington v. Nutt, 80—265; Saunders v. Gat- ling, 81—398; Clark t. Carpenter, 81—309; Morgan v. Bunting, 86—66; Rogers v. Odom, 86—433. Sec. 73. Bond, bow approved, &c. C. C. P., s. 138. The approval of said bond by the board of commission- ers, or a majority of them, shall be recorded by their clerk. Any commissioner approving a bond which he knows or believes to be insufficient, or of the insufficiency of which he has reasonable notice, shall be personally liable as if he were a surety thereto. The said bond shall be acknowledged by the parties thereto, or proved by a subscribing witness, beJ'ore the clerk of said board of com- missioners, or their presiding officer, registered in the register's office in a separate book to be kept by him for the registration of official bonds: and the original, with the approval thereof endorsed, deposited with the register for safe-keeping. The like remedies shall be had upon said bond as are or may be given by law on official bonds. Judges V. Williams, 1 Dev., 436; State v. Ehringhaus, Sired., 7; State V. Gaines, 8 Ired., 168; State v. Biggs, 1 Jon., 364; White v. Smith, 3 Jon,, 4; Richardson v. Smith, 2 Jon., 8; Hunter v. Routlcge, 6 Jon., 216; Short V. Currie, 8 Jon., 43; Erwin v. Lowrance, 64 — 483; Mclntyre v. Merritt, 65— 558 ; Cooper V. Williams, 75—94; Havens v. Lathene, 75—505; Cox v. Blair, 76—78; Wilmington v. Nutt, 78—177; Gregory v. Morisey, 79—559; Wilmington v. Nutt, 80—265; Curtis' Heirs, 82—435. Sec. 74. Qualification of clerks. C. C. P., s. 139 The clerks of the superior court, before entering on the duties of their office, shall take and subscribe before some officer authorized by law to administer an oath, the oaths prescribed by law, and file such oaths with the register of deeds for the county. Sec. 75. May appoint deputies, &c. K. C, c. 19, s. 15. 1777, c. 115, s. 86. Clerks of the superior court may appoint depnties, who shall take and subcribe the oath prescribed in the preced- ing section. Shepherd v. Lane, 3 Dev., 148; Burke v. Elliott, 4 Ired., 355; Sudderclh V. Smyth, 13 Ired., 453. Chap. 9.] CLEEKS OF THE SUPERIOR COURT. 33 Sec. 76. Failure to give bond, &c. C. C. P., s. 140. In case any clerk shall fail to give bond and qualify as above directed, tlie presiding officer of the board of com- missioners of his county shall immediately mtorm the resident judge of the judicial district thereof, who shall thereupon declare the office vacant and fill the same, and the appointee shaU give bond and qualify as above di- rected. Buckman v. Com'rs, 80—131. Sec. 77. Renewed annually; clerk to produce receipts for all public moneys paid before renewing. K. C, c. 19 s. 12. 1793, c. 384, s. 4. 1806, c. 699. s. 1. 1819, c. 990. 1874-'5, c. 151. 187G-'7, c. 376. The clerks of the superior court shall renew their bonds for the faithful discharge of their duties m office, with good and sufficient sureties, annually, on the first Mon- day of December; and such as shall neglect to renew their bonds at the time before mentioned, or give other and better sureties when judged necessary by the board of county commissioners, shall be considered as having forfeited their offices: Provided that no clerk shall be permitted to renew his bond unless he shall produce trom the treasurer, state and county, receipts in full of all moneys by him received for the use of the state and county, for which he shall have been accountable. Oats V.' Bryan, 3 Dcv., 451; Hunter v. Routlege, 6 Joa., 316; Moore v. Boudinot, 64—190. Sec. 78. Clerks may resign. Const., Art. IV., s. 29. Any clerk of the superior court may resign his office to the judge of the superior court, residing in the district in which is situated the county of which he is clerk, and said judge shall fiU the vacancy. Sec 79. Penalty for acting without qualifying. K. C, c. 19, s. 16. 1777, c. 115, ss. 4, 61. 1827, c. 9, s. 5. If any clerk shall enter on the duties of his office, be- fore he executes and dehvers to the authority entitled to receive the same, the bond required by law, he shall be guilty of a misdemeanor. Sec. 80. Office, where to be kept, when to be open. C. C. P., s. 141. He shall have an office in the court-house or other place provided by the board of commissioners, in the county town of his county. He shaU give due attendance, m 34 CLEEKS OF THE SUPERIOR COURT. [Chap. 9. person or b t deputy, at his office dail}', Sundays and hol- idays excepted, from nine o'clock, a. m., to three o'clock, p. ni., and longer when necessary, for the dispatch of business. Shepherd v. Lane, 2 Dev., 148; Burke v. EUiolt, 4 Ired., 355; Suddereth V. Smytli, 13 Ired., 453; People v. Heaton, 77—18; State v. Norman, 83—087. Sec. 81, To receive official papers, &c. C. C. P., s. 142. Immediately after he shall have given bond and quah- fied as aforesaid, he shall receive from the late clerk of the superior court all the records, books, papers, moneys and property of his office, and give receipts for the same, and if any clerk shall refuse, or fail within a reasonable time after demand to deliver such records, books, papers, moneys and property, he shall be liable on his official bond for the value thereof, and be guilty of a misdemeanor. Foster v. Woodfin, 65 — 29; Gregory v. Morrisy, 79 — 559. Sec. 82. To keep record, &c. C. C. P., s. 143. 1868-»9, c. 159, s. 4. He shall be furnished with the requisite stationery and furniture, for official use, by the board of commissioners. He shall keep in bound volumes a complete and faithful record of all his official acts, and give copies thereof to all persons desiring them, on payment of the legal fees. He shall be answerable for all records belonging to his office, and all papers filed in the court, and they shall not be taken from his custody, unless by special order of r.he court, or on the written consent of the attorneys of rec- ord of all the parties; but parties may at aU times have copies upon paying the clerk therefor. Sec. 83. Books to be kept by clerks. C. C. P., s. 144. 1868-'9, c. 159, s. 1. Each clerk shall keep the following books: (1) A docket of all writs, summons or other original process issued by him, or returned to his office, which are made returnable to a regular term of the supei'ior court; this docket shall contain a brief note of every proceeding whatever in each action, up to the final judgment inclu- sive. (2) A judgment docket in which the substance of the judgment shall be recorded, and every proceeding subse- quent thereto, noted. Dail V. Sugg, 85—104. Chap. 9.] CLERKS OF THE SUPERIOR COURT. 35 (3) A docket of all issues of fact joined upon the plead- ings, and of all other matters for hearing hef ore the judge at a regular term of the court, a copy of which shall be furnished to the judge at the commencement of each (4)' A direct and reverse alphabetical index of all final judgments in civil actions rendered in the court, with the dates and numbers thereof, and also of all final judgments rendered in other courts and authorized by law to be entered on his iudgmeut docket. (5) A docket of all criminal actions, contammg a note of every proceeding in each. (6) A minute docket, in which shall be entered a record of all proceedings had in the court during term, in the order in which they occur, and such other entries as the judge may direct to be made therein. (7) A docket of all writs, summons, petitions, ot other original process issued by him, or returnable to his office, and not returnable to a regular term; this docket shall contain a brief note of every proceeding, up to the final judgment inclusive. (8) A minute docket, in which shall oe entered a record of all proceedings had before the clerk, in actions or pro- ceedings not returnable to a regular term of the com-t. Norwood V. Tliorp, CI— 683; Dail v. Sugg, 85—104. Sec. 84. Books to be furnished by board of commissioners. C. C. P.. s. 145. The books specified in the preceding section shall be sup- plied to the clerks of the several counties by the board of commissioners of the respective counties, at the expense of the county. Sec. 85. Moneyjudgmentsof clerktobe entered on judg- ment docket. Judgments for money, rendered by the clerk, shall be entere"d on the judgment docket of the superior court, and shall have the same effect as to lien, from the time of docketing, as if they had been taken in term time. Sec. 86. Papers In each action to be kept separate, and filed together. C. C. P., s. 146. The clerk shall keep the papers in each action in a sep- arate roll or bundle, and at its termination attach them together, properly labeled, and file them in the order of the date of the final judgment. 36 CLERKS OF THE SUPEEIOR COURT. [Chap. 9. Sec. 87. Clerks going- out of office, anrt having failed to perform their duties, the court may cause them to he done, and recover the amount paid for such service. R. C, c. 19, s. 19. 1844, c. 5, s. 6. Whenever, upon the death oi' resignation, removal from office, or at the expiration of his term of office, any clerk shall have failed to discharge any of the duties of his office, the court, if practicable, shaU cause the same to be performed by another person, who shall receive for such services, and as a comjDensation therefor, the fees allowed by law to the clerk; and such portion thereof as may be paid by the county, may be recovered back by the county, by suit on the official bound of the default- ing clerk, to be brought on the relation of the board of commissioners of the county. Sec. 88. Solicitor to examine records. C. C. P., s. 147. At every regular term of the superior court, the sohci- tor for the judicial district shall inspect the office of the clerk and report to the court in writing. If any clerk, after being furnished with the necessary books, shall fail to keep them up, as required by law, he shall be guilty of misdemeanor, and the sohcitor shall cause him to be prosecuted for the same. If any solicitor shall fail or neglect to perform the duty hereby imposed on him, he shaU be liable to a penalty of five hundred dollars to any person who shall sue for the same. Sec. 89. Superior court clerk to certify to secretary of state names of appointees to fill vacancies in office of justice of the peace, &c. 1881, c. 326. In every case of an appointment to fiU a vacancy in the office of justice of the peace, it shall be the duty of the clerk of the superior court making the appointment, within ten days after such appointment, to certify and report under his hand and seal of office to the secretary of state the name of the appointee, together with that of the justice whom he succeeds. Sec. 90. To make annual reports of all puhlic funds which come into their hands. 1874-'5, c. 151. 1870'-7, c. 270. Clerks of the superior court, into whose liands any pub- lic funds may come by virtue or under color of their office, shall make an annual report of the amount and management of the same, on the first Monday in Decem- ber, or cf 'cacr if requii-ed, of each and every year to the Chap. 9.] CLERKS OF THE SUPEEIOR COURT. 37 board of commissioners of the several counties. Such re- port shall give an itemized and detailed account of the public funds received and disbursed, the amount, date and source from which it was received, and the amount, date and person to whom disbursed, shall be addressed to the chaiiman of the board of commissioners for the county for which such report is made, and shall be sub- scribed and verified by the oath of the party making the same before any person allowed to administer oaths. Sec. 91. To be approved and registered. 1874:-'5, c. 151. 1876-'7, c. 270. The board of commissioners, if they shall approve of the reports mentioned in the preceding section, shall cause the same to be registered in the office of the regis- ter of deeds in a book to be furnished to the register of deeds for the several counties by the board of commis- sioners, which book shall be marked and styled "record of official reports," with a proper index of all reports re- corded therein, and each original report shall, if approved, be endorsed by the chairman of the board with the word "approved," the date of approval, and the endorsement signed by the chairman, and when recorded by the regis- ter he shall endorse thereon the date of registration, the page of the "record of official reports" upon which the same is registered, sign the same and file it in his office. Sec. 92. Failure to report. 1874:-'5, c. 151, s. 3. 1876-^ '7,0.276. If any clerk shall fail to report, or if after a report has been made, the board of commissioners disapprove the same, such board may take legal steps to compel a proper report to be made, by suit on the bond of such clerk. Any clerk wilfuUy and falsely swearing to any report made, shall be guilty of a misdemeanor. Sec. 93. The duties of clerts of the superior court in rela- tion to hills of cost; clerks to insert detailed items. 1873-'4, c. 116, s. 1. The clerks of the several superior courts shall insert in the entry of judgment in every criminal action tried at the several terms, whether regular or special, of the supe- rior courts of their counties; and in the bills of cost in such cases where there is no trial, a detailed statement of the different items of cost in such cases, and to whom due, which statements shall at all times be open to the inspec- tion of all persons interested in the same. 38 CLERKS OF THE SUPERIOE COURT. [Chap. 9. Sec. 94. Statement of costs to be made in thirty days. 1873-'4:, c. lie, s. 3. Ill all criminal actions in the superior court, where the state is Hable in wliole or part for the costs, it shall be the duty of the clerk of the superior court to make out a statement of such costs from the record or docket, within thirty days after the regular or special terms of the supe- rior court, and file the same with the board of commis- sioners of their counties; for which services they shaU receive the same fees as are now provided by law for like duties. Sec. 95. Clerks to keep an itemized statement of allfines received by them, and to properly account for the same. 1879, c. 96, s. 1. It shall be the duty of the clerks of the several courts to enter in a book, to be supplied by the board of commis- sioners of the county, an itemized and detailed statement of the respective amounts received by them in the way of fines, penalties and forfeitm-es, and said book shall at all times be open to the inspection of the public. Sec. 96. Fines, &c., to be paid to county treasurer within sixty days; treasurer to keep Itemized account, &c. 1879, c. 96, s. 2. All fines, penalties and forfeitures so received by any clerk shall within sixty days after being received, be paid over to the county treasurer, or person legally act- ing as such, who shall give a receipt to every such clerk for the same, and said county treasurer or person legally acting as such shall enter in a book to be kept by him the exact amount of any fine, penalty or forfeiture so paid over to him, giving the date of payment, tbe name of the clerk so paying the same, the name of the party from whom such fine, penalty or forfeiture was collected, and in what case. Sec. 97. Certified statement of account to be filed with superior court clerk. 1879, c. 96, s. 3. It shall be the duty of the county treasurer, or person legally acting as such, to file a certified statement, item- ized as aforesaid, in the office of the clerk of the superior court, and it shall be the duty of the said clerk to record said statement iu a book to be kept in his office for that purpose. Said certified statement shall be filed by said treasurer, or person so acting, in said clerk's office, on the first days of January, April, July and October, in each and every year. Chap. 9.] CLERKS OF THE SUPERIOR COURT. 39 Sec. 98. Fines, &e., heretofore collected, to be paid to the treasurer. 1879, c. 96, s. 4. All fines, penalties and forfeitures heretofore collected by any such clerks, and -which have not been accounted for, shall be paid over to such treasurer or person acting as such. Sec. 99. Fines, &c., appropriated to the common schools. 1879, c. 96. s. 5. All fines, penalties and forfeitures above mentioned shall be appropriated and paid out by the county treas- urer as aforesaid for the use of the free common schools of the county in which said fines, penalties and forfeit- ures are collected. Sec. lOO. Day of issuing process to he noted thereon; sher- iff to endorse day of receiving, &c. K. C, c. 31, s. 39. 1777, c. 115, s. 13. The clerk shall note on all precepts, process and execu- tions, the day on which the srame shall be issued; and the sheriff or other officer receiving the same for execution, shall in like manner note thereon the day on which he shall have received it, and the d.^y of the execution; and every clerk, sheriff or other officer neglecting so to do, shall forfeit and pay one hundred dollars. Boyden v. Odeneal, 1 Dev., 177; Fulbright v Tritt, 2 D. & B., 491; Booth V. Leary, 3 D. & B., 21; Hyatt v. Tomlin, 2 Ired., 149; Wyche v. Newsom, 87—144. Sec. 101. Failure to perform duty a misdemeanor. 1879, c. 96, s. 6. If any clerk, county treasurer, or person acting as such, shall fail or neglect to perform any of the duties or re- quirements above named, of this chapter, he shall be guilty of a misdemeanor. Sec. 102. OflEice of probate judge abolished. The office or place of probate judge is abolished, and the duties heretofore pertaining to clerks of the superior court as judges of probate, shall be performed by the clerks of the superior court as clerks of said court, and all matters pending before said judges of probate shall be deemed transferred to the clerks of the superior court. Sec. 103. Clerks of the Superior Court; their jurisdic- tion. C. C. P., ss. 417, 418. The clerks of the superior court have jurisdiction: (1) To take proof of deeds, biUs of sale, official bonds, 40 CLERKS OF THE SUPEEIOR COURT. [Chap. 9. letters of attorney, or other instruments permitted or re- quired by law to be registered; (2) To take proof of wills and grant letters testamentary and of administration; (3) To revoke letters testamentary and of administra- tion; (4) To appoint and remove guardians of infants, idiots, inebriates and lunatics; (5) To bind out apprentices and to cancel the indentures ^ in such cases; (G) To audit the accounts of executors, administrators, collectors and guardians; (7) To exercise jurisdiction conferred on them in every other case prescribed by law. Wadsworth v. Davis, G3— 251; Hunt v. Sneed, 64—170; Hunt v. Sneed, 64-180; Reynolds v. State, 64— 4G0; Hcllig v. Foard, 64—710; Rowland v. Thompson, 64— 714; Miller v. Barnes. 65-07; Sprinkle v. Hutchinson, 66— 450; Guion v. Melvin, 69—243; Bryan v. Uubbs, 69—423; Wilson v. Abrams, 70-^324; Davis v. Cureton, 70—067; Taylor v. Biddlc, 71—1; Ballard v. Kilpatrick, 71—281; Bidwellv. King, 71—287; Williams v. "Williams, 71— 427; Patterson v. Miller, 72—510; Hodge v. Hodge, 72—616; Williams V. Williams, 74—1; Spears v. Snell, 74—210; Spiers v. Halsted, 74— 624; Hendricks v. May field, 74—726; Gardner v. Anderson. 79—24; Hay- wood V. Haywood, 79—42; Blue v. Blue, 79—69; Wood v. Skinner. 79—92; Sanderson v. Sanderson, 79—369; Barnes v. Brown, 79—401; Brattonv. Davidson, 79—123; Smith v. Pipkin, 79—569; HofE v. Crafton, 79—593; Soulhall v. Shields, 81—28; McFadgcn v. Council, 81—195; Greg- ory v. Ellis, 83—335: Simpson v. Jones, 82—333; Pegram v. Armstrong, 83—336; Murrillv. Sandlin, 86—54. Sec. 104. Disqualification to Act. C. C. P., s. 419. 1871- '2, c. 196, s. 1. No clerk can act as such in relation to any estate or pro- CGGdill2^I (1) If'he has or claims to have, an interest by distribu- tion, by will, or as creditor, or otherwise; (2) If he is so related to any person, having or claiming such interest, that lie would, by reason of such relation- ship, be disqualified as a juror; but the disqualification on this ground ceases, unless the objection is made at the first hearing of the matter befoi'e him. (3) If he or his wife is a party or a subscribing witness to any deed of conveyance, testamentary paper or nun- cupative will; but this disquahfication ceases when such deed, testamentary paper, or will has been finally ad- mitted to or refused i:)robate by another clerk, or before the judge of the superior court. Chap. 9.] CLERKS OF THE SUPERIOR COURT. 41 (4) If he or his wife is named as executor or trustee in any testamentary or other paper; but this disquahfica- tion ceases when the will or other paper is finally ad- mitted to or refused probate by another clerk, or before the judge of the superior court; (5) Or if he shall renounce the executorship and en- dorse the same on the will or on some paper attached thereto, before it is propounded for probate, in which case the renunciation must be recorded with the will if admit- ted to probate. Barlow v. Norfleet, 73 — 535; Gregory v. Ellis, 82 — 335. Sec. 105. Waiver of disqualification. C. C. P., s. 420. The parties may waive the disqualification specified in subdivisions one, two, three and five of the preceding section, and upon filing in the office such waiver in wri- ting, the clerk shall act as in other cases. Sec. 106. Removal of proceedings. C. C. P., s. 421. When any of the disqualifications specified in section one hundred and four exist, and there is no waiver thereof, or cannot be such waiver, any party in interest may apply to the judge of the district or to the judge holding the courts of such district for an order to remove the proceedings to the clerk of the superior court of an adjoining cormty in the same district. Sec. 107. Commissioner appointed to audit accounts, ap- proval of judge of Superior court, record made by clerk of superior court. 1871-'2, c. 197, s. 1. In all cases where the clerk of the superior court shall be executor or administrator of any estate at the time of his election to office, in order to enable him to settle such estate, the judge of the superior court mentioned in the preceding section is empowered to make such order as may be necessary in the settlement of the estate; may audit the accounts or appoint a commissioner to audit the accounts of such executor or administrator, and report to either of said judges for his approval, and when the ac- counts are so approved, it shall be his duty to order the proper record to be made by the clerk, and the accounts to be filed in court. Wilson V. Abrams, 70—334. Sec. 108. Enumeration of powers. C. C. P., s. 422. Every clerk has power: (1) To issue subpoenas to compel the attendance of any 42 CLEEKS OF THE SUPERIOR COURT. [Chap. 9. witness residing or being in the state, or to compel the production of any bond or paper, material to any inquiry pending in his court; (2) To administer oaths and take acknowledgments, whenever necessary, in the exercise of the powers and duties of his ofiSce; (3) To issue commissions to take the testimony of any witness within or without this state; (4) To issue citations and orders to show cause to par- ties in all matters cognizable in his court, and to compel the appearance of such parties; (5) To enforce all lawful orders and decrees by execu- tion or otherwise, against those who fail to comply there- with or to execute lawful process. Process may be issued by the clerk, to be executed in any county of the State, and to be returned before him; (6) To exemplify, under seal of his court, all transcripts of deeds, papers or proceedings therein, which shall be received in evidence in all the courts of the state; (7) To preserve order in his court and to punish con- tempts; (8 ) To adjourn any proceeding pending before him from time to time; (9) To open, vacate, modify, set aside, or enter as of a former time, decrees or orders of his court, in the same manner as courts of general jurisdiction; Loviuicr V. Pierce, 71—67; "Wayhnb v. Smith, 83—229. (10) To award costs and disbursements as prescribed by law, to be paid personally, or out of the estate or fund, in any proceeding before him. Sec. 109. How party may appear. C. C. P., s. 423. A party may appear in proceedings in which he is con- cerned, either in person or by attorney. Sec. no. Clerk not to act as attorney, &c. C. C. P., s. 424. No clerk or any partner or person connected in law business with him shall cot as counsel or attorney-at-law in the county wherein he i-i clerk; and any one violating this provision shall be guilty of a misdemeanor. Sec. 111. Clerk must file papers. C. C. P., s, 426. Every clerk nuist file and preserve all papers in pro- ceedings before him, or belonging to the court; and all such papers and the books kept by him belong to, and Chap. 9.] CLERKS OF THE SUPERIOE COURT. 43 appertain to, his office, and must be delivered to his suc- cessor. Sec. 112. Records to be kept by clerk. C. C. P., s. 427. The following books must be kept by each clerk: (1) A record of wills, in which must be recorded all wills, with the certificates of probate thereof; (2) A record of appointments of executors, administra- tors, guardians, collectors and masters of apprentices, with I'evocations of all such appointments; (3) A record of all orders and decrees passed in his office, which he is required to make in writing, and not required to be recorded in some other book; (4) A record of accounts, in which must be recorded the quarterly and annual accounts of executors, adminis- tratoi's, collectors and guardians, as audited by him from time to time; (5) A record of settlements, in which must be entered the final settlements of executor's, administrators, collec- tors and guardians. Sec. 113. Books to be furnished by board of conimis- sioners; to be indexed. C. C. P.. s. 42S. The books required to be kept by the last section must be funiished to the clerk by the board of commissioners; and to each of such books there must be attached an alphabetical index securely bound in the volume, refer- ring to the entries therein by the page of the book. These books must, at all proper times, be open to the inspection of any person. Sec. 114. Clerks required to keep open office for probate business. 1871-'2, c. 136, s. 1. The clerks of the superior court shall open their offices every Monday, from 9 a. m. to 4 p. m., for the transac- tion of probate business, and on each succeeding day till such matter is disposed of. People V. IlL'aton, 77 — 18; State v. Norman, 82 — 687. Sec. 115. Forfeiture of office for failure. 1871-'2, c. 136, s. 2. Any clerk of the superior court failing to comply with the preceding section, unless such failure be caused by sickness or other urgent necessity, shall forfeit his office. People V. Ileaton, 77—18; State v. Normau, 83—087. 44 CLEEKS OF THE SUPEEIOE COUPT. [Chap. 9. Sec. 116. Issues of fact joined before the clerk to be transferred to the superior court; appeals shall lie to judge. C. C. P., ss. 490, 491, 492, 1873-'4, c. 34, s. 3, 1876-'7, c. 241, s. 5. All issues of fact joined before the clork shall be trans- ferred to the superior court for trial at the next succeed- ing term of said court; and appeals shall he to the judge of the superior court haTing jurisdiction, either in term time or vacation, from judgments of the clerk of the su- perior court in all matters of law. In case of such trans- fer or appeal, neither party shall be required to give an undertaking for costs; and the clerk shall transmit, on such transfer or appeal, to the superior court, or to the judge thereof, the pleadings, or other papers, on which the issues of fact or of law arise. An appeal must be taken within twenty days after the entry of the order or judgment of the clerk. But an appeal can only be taken by a party aggrieved, who appeared and moved for, or opposed the oider or judgment appealed from, or who, being entitled to be heard thereon, had no opportunity of being heard, which fact may be shown by affidavit or other proof. Rowland v. Thompson. 64^714; King v. Kinsey, 71—407; Wood v. Skinner, 79—93. Sec. 117. Lawful to deposit mortgage in lieu of prosecu- tion bond. 1874-'5, c. 103, s. 1. It shall be lawful for any person desiring to commence any civil action or special proceeding, or to defend the same, his agent or surety, to execute a mortgage on real estate of the value of the bond or undertaking, required to be given at the beginning of said action, or at any stage thereof, to the party to whom the bond or under- taking would be required to be made, conditioned to the same effect as such bond or undertaking with power of sale, which power of sale may be executed upon a breach of any of the conditions of the said mortgage after ad- vertisement for thirty days. Sec. 118. Executors, &c., and officers may execute mort- gage in lieu of bond. 1874-'5, c. 103, s. 2. Any administrator, executor, guardian, collector or receiver, or anv officer required to give an official bond, or the agent or surety of such person or officer, may ex- ecute a mortgage on real estate, of the value of the bond required to be given by such administrator, executor, guardian, collector, receiver or officer, to the state of Chap. 9.] CLERKS OF THE SUPERIOR COURT. 45 North Carolina, conditioned to the same effect as the bond should be, were the same given, with a power of sale, which power of sale may be executed by the clerk of the superior court, with whom said mortgage shall be deposited, upon a breach of any of the conditions of said mortgage, after advertisement for thirty days. Sec. 119. Additional security may be required. 1874-'5, c. 103, s. 5, If, from any cause, the property mortgaged in the cases provided for in the two preceding sections, shall be- come of less value than the amount of the bond, in lieu of which the mortgage is given, and it shall so appear upon affidavit of any" person having any interest in the matter as a security for which the mortgage was given, it shall be the duty of the mortgagor to give additional security by a deposit of money, or the execution of a moi'tgage on more property, or justify as required in cases where bond or undertaking is given. Sec. 120. Any person may execute mortgage in lieu of bond; proviso, 1874-'5, c. 103, s. 3. Any person required to give a bond or undertaking, or required to enter into a recognizance for his appearance at any court, in any criminal proceeding, or for the security of any costs or fine in any criminal action, may also execute a mortgage on real property of the value of such bond or recognizance, payable to the state of North Carolina, conditioned as such bond or recognizance would be required, with power of sale, which power shall be executed by the clerk of the court in which said mortgage shah be executed, upon a breach of any of the conditions of said mortgage: Provided, that when said mortgage is executed before a justice of the peace, the power of sale shall be executed by the clerk of the court, to which the proceedings are returned. Sec. 121. Affidavit of value required in certain cases. 1874-'5, c. 103, s. 4. In all cases where a mortgage is executed, as hereinbe- fore permitted, it shall be the duty of the clerk of the court in which it is executed, or of the justice, to require an affidavit of the value of the property mortgaged, to be made by at least one witness, not interested in the matter, action or proceeding, in which the mortgage is given. 46 CLEEKS OF THE SUPERIOE COUET. [Chap. 9. Sec. 122. Clerk may deposit mortgage. lS74-'5, c. 103, s. G. In all cases "where the clerk of the sui^erior court raay be required to give surety, he may deposit amoitgage with the register of deeds, payable to the state, and condition- ed as the bond would have been required, with power of sale, which power of sale shall be executed by the register of deeds, upon a breacli of any of the conditions of said mortgage; and the register of deeds shall in all cases im- mediately register the same, at the expense of the said clerk. Sec. 123. Punishment of the clerk of the superior court on conviction of an infamous crime. lS68-'9, c. 201, s. 53. Upon the conviction of any clerk of the superior court of an infamous crime, or of corruption and malpractice in office, he shall be removed from office, and he shall be disqualified from holding or enjoying any office of honor, trust or profit under this state. Clarke V. Carpenter, 81—309. Sec. 124. Going out of office, to transfer records to succes- sor; judge may give order for delivery of records, &c. K. C, c. 19, s. 14. Upon going out of office for whatever reason, any clerk of the superior, inferior, or criminal court, shall ti-ansfer and deliver to his successor, (or to such person, before his successor in office may be appointed, as the court may designate), all records, documents, papers, and money belonging to the office. And the judge appointing any clerk to a vacancy in the clei'kshi]) of the superior court, may give to such person an order for the delivery to him, by the person having the custody thereof, of the records, documents, papers and moneys belonging to the office, and he shall deliver the same in obedience to such order. And in case any clerk going out of office as aforesaid, or other person having tbe custody of such records, docu- ments, papers, and money as aforesaid, shall fail to trans- fer and deliver them as herein directed, he shall forfeit and pay to the State one thousand dollars, which shall be sued for by the prosecuting officer of that court. O'Leary v. Ilarrison, 6 Jon., 339; Clarke v. Carpenter, 81 — 309. Chap. 10.] CODE OF CIVIL PROCEDURE. 47 CHAPTER TEN. THE CODE OF CIVIL PEOOEDUEE— Acts 1868. Mitchell V. Henderson, 63— G43; Ragland v. Currin, 04—355; Clerk's office V. Huffsteller, 67—449; Ins. Company v. Davis, 74—78; Lash v. Thomas, 86—313. TITLE I. GENERAL DEFIMTIONS AND DIVISIONS. Section. 125. Remedies. 126. Actions. 127. Special- proceedings. 128. Division of actions. Section. 129. Criminal action. 130. Civil action. 131 . Remedies not merged. 132. Definition of court; to mean clerk, when. Sec. 125. Remedies. C. C. P., s. 1. Remedies in the courts of justice are divided into — (1) Actions. (2) Special proceedings. Sec. 126. Actions. C. C. P., s. 2. 1868-'9, c. 277, s. 2. An action is an ordinary proceeding in a court of jus- tice, by which a party prosecutes another party, for the enforcement or protection of a right, the redress or prevention of a vs^rong, or the punishment or preven- tion of a public offence. Wilson & Shober v. Moore, 72—558. Sec. 127. Special proceedings. C. C. P., s. 3. Every other remedy is a special proceeding. Hunt V. Snecd, 64 -176; St.ato v. Mcintosh, 64—607; Talc v. Powe, 64— 644; Woodlcy V. Gilliam, 61— 649; Sumner v. Miller, 64—088; Hyman v. Jarnigan, 65— 96; Felton V. Elliott, 66— 195: Ilowcrton v. Tate, 06-231; Badger V. Jones, 66— 305; Sprinkle v. Hutchinson, 66—450; Pellelier v. 48 CODE OF CIVIL PROCEDURE. [Chap. 10. Saund.rs. G7-2'61 ; Bell v. Kin- 70-330; Hcrrins v. Outlaw, 70-330; Jenkins v. Carter. 70—500; Patterson v. Jliller, 72—516; Barnes v. Brown, 79—401. Sec. 128. Division of actions. C. C. P., s. 4. Actions are of two kinds — (1) Civil. (2) Criminal. Sutton V. Owen, 65—123. Sec. 129, Criminal action. C. C. P., s. 5. A cdminal action is; , • i (1) An action prosecuted by the state as a party, against a person charged with a public offence,for the punishment thereof. State V. Lupton, 63—483; State v. Simons, 68—378. (2) An action ])rosecuted bv the state, at the instance of an individual, to prevent an apprehended crime, against his person or property. State V. Locust, 63—574. Sec. 130, Civil action. C.C. P.,s.6. Every other is a civil action. State V. Mclutosli, 64—007; Tate v. Powe. 04-644; Woodley v. Gilliam, 64— 649; Rowland V. Tliompson. 65— 110; Murphy v. Harilson, 65— 246; Howerton v. Tate, 66— 231; Bunting v. SlanoiU, 79—180. Sec. 131. Kemedies not merged. C. C. P..s. 7. Where the violation of a right admits both of a civil and a criminal remedy, the right to prosecute the one is not merged in the other. Sec. 132. Definition of court, to mean clerk, when. C, C. P., s. 9. In those of the following enactments which confer iurisdiction or power, or impose duties, when the words superior court, or "court," in reference to a superior court are used, they mean the clerk of the superior court, unless otherwise specially stated, or unless refer- ence is made to a regular term of the court, in which cases the judge of the court alone is meant. McAdoo V. Benbow, 63-461; Pelletler v. Sanders, 67—261. Chap. 10.] CODE OF CIVIL PROCEDURE. 49 TITLE II. GENERAL PKOYISIONS AS TO CIYIL ACTIONS. Section. 133. Forms of civil actions; distinc- tion between actions at law and suits in equity abolished. Section. 134. Pa-ties designated plaintiU and defendant. 135. Feigned issues abolished. Sec. 133. Forms of civil actions; clistinctioa between actions at law and suits in equity abolished. C. O. P., s. 12. Cons., Art. IV., s. 1. The distinction between actions at law and suits in equity, and the forms of a'l sucli actions and suits, here- tofore existing, are abohshed, and there shall be here- after but one form of action for tire enforcement or protection of private rights, and the redress of private wrongs, which shall ba denominated a civil action. Matthews v. McPherson, Co — 189; Parsley r. Nicholson, 65 — 207; Garrett V. Trotter, 65—430; Dates v. Gray, 68—443; Froelich v. Exp. Co., 67—1; Moore v. Edmiston. 70—510; Belmont v. Reilly. 71—360; Bitting v. Thaxton, 73—541. Sec. 134. Parties designated plaintiflf and defendant. C. C.P., s. 13. In such action, the party complaining shall be known as the plaintiff, and the adverse party as the defendant. Garrett v. Trotter, 65—430 Sec. 135. Feigned issues aboli-slied. C. C. P., s. 15. Feigned issues are abolished; and instead thereof, in the cases where the power formerly existed to order a feigned issue, or when a question of fact not put in issue by the pleadings, is to be tried by a jury, an order for the trial may be made by the judge, stating distinctly and plainly the question of fact to be tried; and such order shall be the only authority necessary for a trial. MeAdoo V. Benbow, 03 — 461; Harkoy v. Houston, 65 — 137; Abrams v. Cureton, 74—523; Blake v. Asliew, 76—325. 60 CODE OF CIVIL PROCEDUEE. [Chap. 10. TITLE III. LIMITATION OF ACTIONS. Chap. I. Actions in General. II. Actions for the Recovery of Real Prop- erty—Time OF Commencing. Ill Actions other than for the Recovery of Real Property— Time of Commencing. rV. General Provisions .as to the time op Commencing Actions. CHAPTER ONE. ACTIONS IN GENEKAL. Section. 136. To what actions this title shall extend. 137. Time between the 20th of May, 1861, and the 1st January, 1870, not to be counted. Section. 138. Period of limitation — objection must be taken by answer. Sec. 136. To wliat actions tWs title shall extend. C. C. P., s. 16. This title shall not extend to actions commenced before the twenty-fourth day of August, one thousand eight hundred and sixty- eight, nor to cases where the riSht of action accrued before that date, but the statutes in^rce previous to that date shall be apphcable to such actions and cases. Ra,hnston V. Jones, 87—303 ; McDonald v. Dickson, 87—404. (2) An action upon a sealed instrument against the principal thereto; Welfare v. Thompson, 83—376; Belo v. Spach, 85—132; Torrence v. Alexander, 85—143; Grawford v. McClellan, 87—169. (3) An action for the foreclosure of a mortgage, or deed in trust for creditors with a power of sale, of real prop- erty, where the mortgagor or grantor has been in posses- sion of the property, Avithin ten years after the forfeiture of the mortgage, or after the power of sale became ab- solute, or within ten years after the last payment on the the same; Parker v. Banks, 79—480. (4) An action for the redemption of a mortgage, where the mortgagee has been in possession, or for a residuary interest under a deed in trust for creditors, where tlie trustee or those holding under him shall have been in possession; within ten years after the right of action accrued. Edwards v. Tipton, 85—478. Sec. 153. Seven years. C. C. P., s. 33. Within seven years — (1) An action on a judgment rendered by a justice of the peace, from the date thereof; Barringcr v. Allison, 78 — 79; Broyles v. Young, 81—315; Daniel v. Laughlin, 87—433. (2) By any creditor of a deceased person against his personal or real representative, -within seven years next after the qualification of the executor or administrator and his making the advertisement required by law, for creditors of the deceased to present their claims, where no personal service of such notice in writing is made 68 CODE OF CIVIL PROCEDURE. [Chap. 10. upon the creditor; and a creditor thus barred of a recov- ery against the representative of any principal debtor shall also be barred of a recovery against any surety to such debt. McKeithan v. McGill, 83—517; Cox v. Cox, 84—138; Bacon v. Berry. 85 — 124; Vaughanv. Hiues, 87 — 445; Leake v. Covington, 87 — 501. Sec. 154. Six years. C. C P., s. 33. Within six years — (1) An action upon the ofl&cial bond of any public officer; Hewlett V. Schenck, 83—234; Hughes v. Newsom, 86 — 424. . (2) An action against any executor, administrator, col- lector, or guardian on his official bond, within six years after the auditing of his final accounts by the proper oflficer, and the filing of such audited account as required by law; Briggs V. Smith, 83—306; Vaughan v. Hines, 87—445. (3) An action for injury to any incorporeal heredita- ment. Boyden v. Acbenbach, 79 — 539. Sec. 155. Three years. C. C. P., s. 34. Within three years — (1) An action upon a contract, obligation or liability arising out of a contract, express or implied, except those mentioned in the preceding sections; R. R. Co. V. Avery, C4 — iOl; Knight v. Biaswell, 70—709; Guano Co. v. ■Willard, 73—531; Blackwcll v. Claywell, 75—215; Austin v. Dawson, 75— 523; Egerton v. Logan. 81—172; Hevplett v. Schenck, 82—234; Welfare v. Thompson, 83— 276; Green v. College, 83 — 449; Capcll v. Long, 84—17; Reedv. Exum, 84—130; Oatea v. Lilly, 84—643; Timberlake v. Green, 84 — 658; Miller V. Lash, 85—51; Torrence v. Alexander, 85—143; Jolly v. Bryan, 86—457; Moore v. Com'rs, 87—209; Robertson v. Dunn, 87—191. (2) An action upon a liabihty created by statute, other than a penalty or forfeiture, unless some other time be mentioned in the statute creating it; (3) An action for trespass upon real property; Spilman v. Roanoke Nav. Co., 74—675; King v. Little, 77—138. (4) An action for taking, detaining, converting or in- juring any goods or chattels, including action for their specific recovery; Hewlett V. Schenck, 82—234; Etheridge v. Woodley, 83—11; Currie v. McNeUl, 83—176. k Chap. 10.] CODE OF CIVIL PEOCEDUEE. 59 (5) An action for criminal conversation, or for any- other injury to the person or rights of another, not aris- ing on contract and not hereinafter enumerated; (6) An action against the sureties of any executor, ad- ministrator, collector or guardian, on the official bond of their principal; within three years after the breach there- of complained of; Bushee v. Surles, 77—63; Spniill v. Sanderson, 79—466; Walton v. Pearson, 85 — 34. (7) An action against bail; within three years after judgment against the principal, but bail may discharge himself by a surrender of the principal, at any time be- fore final judgment against the bail; . (8) Fees due to any clerk, sheriff or other officer, by the judgment of a court; within three years from the time of the judgment rendered, or of the issuing of the last exe- cution therefor. 1879, c. 251, (9) An action for relief, on the ground of fraud or mis- take, in cases which heretofore were solely cognizable by courts of equity, the cause of action in such cases not to be deemed to have accrued, until the discovery by the aggrieved party of the facts constituting such fraud or mistake. Young V. Phifer, 72 — 539; Barham v. Lomax, 73 — 76; Ross v. Henderson, 77_170; WUson V. LandCo., 77— 445; Blount v. Parker, 78— 138; Kahn- weiler V. Anderson, 78 — 133; Spruill v. Sanderson, 79 — 466; Egerton v. Logan, 81—172; Briggs v. Smith, 83—306; Day v. Day, 84^-408; Hughes v. WhlLaker, 84—640; Knight v. Houghtalling, 85—17. Sec. 156. One year. C. C. P., s. 35. Within one year — (1) An action against a sheriff, coroner or constable, or other pubhc officer, for a trespass under color of his office; Hewlett V. Nutt, 79—363. (2) An action upon a statute, for a penalty or forfeit- ure, where the action is given to the state alone, or in whole or in part, to the party grieved, or to a common informer, except where the statute imposing it prescribes a different limitation; Hewlett V. Nutt, 79—363. (3) An action for libel, assault, battery or false impris- onment; 60 CODE OF CIVIL PEOCEDURE. [Chap. 10. (4'i An action against a sheriff, or other officer, for the escape of a prisoner arrested or imprisoned on civil pro- C6SS' (5) An action by a creditor of any deceased pei-son, on whom personal notice in writing, to pres:?nt his claim to the personal representative of the deceased, has been served, and who has failed so to do, within one year after the service of such notice; and any such credito]', barred of a recovery against the personal representative of a principal debtor, by reason of such default, shall also be barred of a recovery against the sm-ety for such debt. Sec. 157. Six months. C. C. P., s. 36. Within six months— An action for slander. Sec. 158. For other relief within ten years. C. C. P., s. 37. An action for relief not herein provided for must be commenced within ten years after the cause of action shall have accrued. Libbett v. Maultsby, 71—345; Ross v. Henderson, 77—170; McDonald v. Dickson, 85—248. Sec. 159. Limitations to apply to actions by the state. C. C. P., s. 38. The limitations prescribed in this chapter shall apply to civil actions brought in the name of the state, or for its benefit, in the same manner as to actions by or for the benefit of private parties. Sec. 160. Actions upon an account current, when cause accrues. C. C. P., s. 39. In an action brought to recover a balance due upon a mutual, open and curi-ent account, where there have been reciprocal demands between the parties, the cause of action shall be deemed to have accrued from the time of the latest item proved in the account, on either side. Ro))ertaon V. Pickcrell, 77—303; Mauney v. Coit, 86—463. Chap. 10.] CODE OF CIVIL PEOCEDUEE. 6] CHAPTEE FOUE. GENERAL PEOVISIONS AS TO TIME OF OOMMENO- ma ACTIONS. I Section. 161. When action deemed com- menced. 163. Time for commencement of acticn, 01' enforcement of judgment against defendant out of tlie slate. 163. Exceptions, persons under dis- abilities. 164. Death of a person entitled be- fore liuiitalion expires; action on claims filed by administra- tor, &c., .ind admitted, not barred. &c., applicable to claims already filed. 165. Actions by aliens, time of war not counted. 166. When ju'lgment reversed, &c., plaintiff may commence new action. 167. Time of stay by injunction, &c., not counted. 168. Time during controversy about Section. probate of will, &c., not coimted. 169. Disability must exist when the right of action accrued. 170. Where several disabilities, all must be removed. 171. Acknowledgment by partner, &c., after dissolution. 172. Acknowledgment or new prom- ise must be in writing. 173. Co tenants; when some barred, others not. 174. Title not to affect action to en- force payment of bills, &c. 175. Nor aciions against directors, &c., of moneyed corpora- tions, or banking associations; limitations in such cases pre- scribed. 176. Certain suits against banks barred. Sec. 161. 40. When action deemed, commenced. C. C. P., An action is commenced as to each defendant when the summons is issued against him. Wheeler v. Cobb, 75—21 ; Etheridge v. Woodley, 83—11. Sec. 162. Time for commencement of action, or enforce- ment of j iidg-ment against defendant out of the state. C. C. P.,s. 41. 1881, c. 258, ss. 1,2. If, when the cause of action accrue or judgment be rendered or docketed against any person, he shall be out of the state, such action may be commenced, or judgment enforced, withi.u the time herein respectively limited, after the return of such person into this state. 62 CODE OF CIVIL PROCEDUEE. [Chap. 10. and if, after such cause of action shall have accrued or judgment rendered or docketed, such person shall depart from and reside out of, this state, or remain continuously ahseut therefrom for the space of one year or more, the time of his absence shall not be deemed or taken as any part of the time limited for the commencement of such action, or the enforcement of such judgment. This section shall apply to all actions that have accrued and judgments rendered, transferred or docketed since the twenty-fourth day of August, one thousand eight hundred and sixty-eight. Blue V. Gilchrist, 84^—239; Campbell v. Brown, 86—376. Sec. 163. Exceptions, persons under disabilities. C. C. P., s. 43. If a person entitled to bring an action mentioned in the last chapter, except for a penalty or forfeiture, or against a sheriff or other officer for an escape, be at the time the cause of action accrued, either — (1) Within the age of twenty-one years; or (2) Insane; or (3) Imprisioned on a criminal charge, or in execution under the sentence of a criminal court for a term less than his natural life; or (4) A married woman; Then such person may bring his action within the times before limited, after the disabihty shall be re- moved. Lippard v. Troutman, 72—551 ; Briggs v. Smitli, 83—306. Sec. 164. Death ofa person entitled before limitation ex- pires; action on claims filed by administrator, &c., and admitted, not barred, &c., applicable to claims already filed. C. C. P., s. 43. 1881, c. 80. If a person entitled to bring an action die before the expiration of the time limited for the commencement thereof, and the cause of action survive, an action rnay be commenced by his representatives after the expira- tion of that time, and within one year from bis death. If a person against whom an actiorl may be brought die before the expiration of the time limited for the com- mencement thereof, and the cause of action survive, an action may be commenced against his personal represen- tative after the expiration of that time, and within one year after the issuing of letters testamentary or of ad- ministration. But if the claim upon which such cause of actioa is based be filed with the personal representa- Chap. 10.] CODE OF CIVIL PEOCEDURE. 63 tive within the time ahove specified, and the same shall be admitted by him, it shall not be necessary to bnng an action upon such claim to prevent the bar: Provided, that no action shall be brought against the personal rep- resentative upon such claim after his final settlement; and this shall apply to claims already filed. Flemming v. Flemming, 85—127; Hall v. Gibbs, 87—4; Robertson v. Dunn, 87—191; Mauney v. Holmes, 87—428; Daniel v. Laughlin. 87—433; Vaughan v. Hines, 87 — 445. Sec. 165. Actions by aliens, time of war not counted. C. C. P.. s. 44, When a person shall be an alien, subject or citizen of a country at war with the United States, the time of the continuance of the war shall not be part of the period hmited for the commencement of the action. Sec. 166. When judgment reversed, &c., plaintiff may commence new action. C. C. P., s. 45. If an action shall be commenced within the time pre- scribed therefor, and the plaintiff be nonsuited, or a judgment therein be reversed on appeal, or be arrested, the plaintiff, or if he die and the cause of action survive, his heir or representative, may commence a new action within one year after such nonsuit, reversal, or arrest of judgment. McDowell V. Asbury, 66—444; Straus v. Beardsley, 79—59; Von Glahn V. de Rosset, 81—467; Martin v. Young, 85—156. Sec. 167. Time of stay by injunction, &c., not counted. C. C. P., s. 46. When the commencement of an action shall be stayed by injunction or statutory prohibition, the time of the continuance of the injunction or prohibition shall not be part of the time limited for the commencement of the action. Walton V. Pearson, 85—34. Sec. 168. Time during controversy about probate of will, &c., not counted. C. C. P., s. 47. In reckoning time when pleaded as a bar to actions, that period shall not be counted which elapses during any controversy on the probate of a will or g'rauting letters of administration, unless there be an administrator ap- pointed during the pendency of the action, and it be pro- vided that an action may be brought against him. 64 CODE OF CIVIL PEOCEDURE. [Chap. 10. Sec. 160. Disability must exist when the right of action accrued. C. C. P., s. 48. No person shall avail himself of a clisabilitj^, unless it existed when his right of action accrued. Sec. 170. "Where several disabilities, all must be removed. C. C. P., s. 49. Where two or more disabilities shall co-exist at the time the right of action accrues, the limitation shall not attach until they all be removed. Sec. 171. Acknowledgment by partner, &c., after dissolu- tion. C C. P., s. 50. No act, admission or acknowledgment by any partner after the dissolution of the co-partnership, or by any of the makers of a promissory note or bond after the statute of limitation shall have barred the same, shall be i-eceived as evidence to repel the statute, except against the part- ner or maker of the promissory note or bond, doing the act or making the admission or acknowledgment. Woodliouso V. Simmons, 73 — SO; Lane v. Ricliardson, 79 — 159; Green y. College, 83—449. Sec. 172. Acknowledgment or new promise must be in wi-iting. C. C. P., s. 51. No acknowledgment or promise shall be received as evidence of a new or contmuing contract, whereby to take the case out of the opei-ation of this title, unless the same be contained in some writing signed by the party to be charged thereby; but this section shall not alter the effect of any payment of principal or interest. Simonton v. ClarU, 65—525; Horntlial v. McRae, C7— 21; Fralcy v Kelley, 67—78; Knight v. Braswcll, 70—709; Libbelt v. Maultsby, 71—345; Faison v. Bowden, 74—43; State v. Bryant, 74—207; Hcnly v. Lanier, 75—172; Kull v. Farmer, 78—339; Lane v. Kicliardsou, 79—159; Green v. College, 83—449; Grant v. Burgwyn, 84—560; Pool v. Bledsoe, 85—1; "White V. Beaman, 85—3; Belo v. Spach, 85—122; Fleiiiming v. Flemming, 85—127; Riggs v. Roberts, 85—151; Hay more v. Uom'rs, 85—268; Jones V. McKinnon, 87—394; McDonald v. Dickson, 87—404. Sec. 173. Co-tenants; when some barred, others not. C. C. P., s. 53. In actions by tenants in common or joint tenants of personal pi-operty to recover the same, or damages for the detention of or injury thereto, and any of them shall be barred of their recovery by limitation of time, the rights of the others shall not be affected thereby; but Chap. 10.] CODE OP CIVIL PKOCEDUEE. 65 they may recover according to their right and interest, notwithstanding such bar. Sec. 1 74. Title not to affect action to enforce payment of bills, &c. C. C. P., s. 53. 1874-'5, c. 170. This title shall not affect actions to enforce the payment of bills, notes or other evidences of debt, issued or put in circulation as money by moneyed corporations incorpo- rated under the laws of the state. Sec. 175. Nor actions against directors, &c., of moneyed corporations or banking associations; limitations in such cases prescribed. C. C P., s. 54. This title shall not affect actions against directors or stockholders of any moneyed corporation, or banking association incorporated under the laws of this state, to recover a penalty or forfeiture imposed, or to enforce a liabihty created by law; but such actions must be brought within three years after the discovery by the aggrieved party, of the facts upon which tne penalty or forfeitm-e attached, or the liability was created. Sec. 176. Certain suits against banks barred. C. C. P., s. 54 (a), 1872-'3, c. 120. Whereas, many citizens of the state of North Carolina were stockholders in banking institutions chartei-ed in other states before the year one thousand eight hundred and sixty-one, which contain individual liability clauses in the nature of penalties, in the event of failure on the part of said banking corporations to meet their liabilities; and, Whereas, said banking coi-porations have become in- solvent by the results of the late war, thereby entailing upon the stockholders the loss of the investment of their capital therein, and they are threatened with further loss by reason of said individual liability clauses; there- fore. All such causes of action as have not hitherto been commenced in this state against citizens thereof, are hereby declared to be barred by lapse of time. 66 CODE OF CIVIL PEOCEDUKE. [Chap. 10. TITLE IV. PIETIES TO CIYIX ACTIONS. Section. 177. Action to be by party in inter- est; action by grantee of land held adversely; assignment of thing in action. 178. Action by and against a married woman. 179. Action by executor, trustee, &c. 180. Infants to sue by guardian or nest friend. 181. Infants, &c., to defend by guar- dian ad litem. Section. 183. Guardian ad litem to file an- swer. 183. Who to be plaintiffs. 184. "Who to be defendants. 185. Parties to be joined. 186. Parties to bills and notes, &c. 187. Joint contracts of copartners. 188. Actions, when not to abate. 189. Court may determine contro- versy and interpleader. Sec. 177. Action to be by party in interest; action by grantee of land belrt aclver.sely; assignment of thing in action. C. C. P., s. 55. 1874:-'5, c. 356, s. 1. Every action must be prosecuted in the name of the real party in interest, except as otherwise provided; but this section shall not be deemed to authorize the assign- ment of a thing in action not arising out of contract. But an action may be maintained by a grautee of real estate in his OAvn name, whenever he or any grantor or other person through whom he may derive title, might main- tain such action, notwithstanding the grant of suchgran- or or other conveyance be void, by reason of the actual possession of a person claiming under a title adverse to that of such grantor, or other person, at the time of the delivery of such grant or other conveyauce. In the case of an assignment of a thing in action the action by the assignee shall be without prejudice to any set-off or other defence, existing at the time of, or before notice of, the assignment; but this section shall not apply to a negoti- able promissory note or bill of exchange, transferred in good faith, aud upon good consideration, before due. Calvert v. Williams, 04— 108; McConnaughey v. Chambers, 04 — 284; Rankin V. Allison, 64—070; Ncal v. Lee, 04—078; Sutton v. Owen. 65— 133; John.5on v. Mangum, 05—140; Harris v. Burwell, C5— 584; Battle v. Davis, 00— 353; School Comm. v. Kcsler, 66—333; Mcbane v. Mebane, 66— 334; Biggs v. Wilhams, 66 — 437; Martin v. Richardson, 68—255; McNinn Chap. 10.] CODE OF CIVIL PROCEDURE. 67 V. Freeman, 68—341; Andrews v. McDaniel, 68—385; Setzer v. Lewis, 69— 133; Leach V. Harsis, 69—533; Brown v. Turner, 70—93; Utley v. Foy, 70 —303; Wilson V. Arentz, 70—670; Boyle v. Robbins, 71—130; Etheridge V. Vernoy, 71—184; Shule-r v. Millsaps. 71—397; Murray v. Blackledge, 71—493; Abrams V. Cureton, 74—523; Miller v. Tharel, 75—148; Buie v. Carver, 75— 559; Justice v. Eddings, 75—581; Henley v. Wilson, 77—316; Alexander V. Wriston, 81—191; Jackson v. Love, 83—405; Bank v. By- num, 84-34; Havens v. Potts, 86—31; Rogers v. Gooch, 87—443. Sec. 1 78. Action by and against a married woman. C. C. P., s. 56. When a married woman is a party, her husband must be joined with her except that, (1) When the action concerns her separate property, she may sue alone; Tredwellv. Blount, 86—33; Pugli v. Grant, 86—39. (2) When the action is between herself and her hus- band, she may sue or be sued alone; And in no case need she prosecute or defend by a guar- dian or next friend. Wilson V. Arentz, 70—670; Shuler v. Millsaps, 71—297; Lippard v. Trout- man, 73— 551 ; Huntley v. Wbitner, 77— 393; Manning v. Manning, 79— 293; Vick v. Pope, 81-33; Gulley v. Maccy, 81—356; Nicholson v. Cox, 83 — 48;Islerv. Koonce, 83—55; Hollings worth v. Harman, 83—153; Briggs V. Smith, 83— S06;McCormacv. Wiggins, 84—278. Sec. 179. Action by executor, trustee, &c. C. C. P., s. 57. An executor or administrator, a trustee of an express tiTJst, or a person expressly authorized by statute, may sue without joining with him the person for whose bene- fit the action is prosecuted. A trustee of an express trust, within the meaning of this section, shall be construed to inclu4e a person with whom, or in whose name, a con- tract is made for the benefit of another. Rankin V. Allison, 64— 673; Battle v. Davis, 66—353; School Com. v. Kesler, 66—323; Biggs v. Williams, 66 — 427; Davidson v. Elms, 67—228; Andrews V. McDaniel, 68—385; Flack v. Dawson, 69—42; Davis v. Fox, 69—435; Abrams v. Cureton, 74 — 533; Buie v. Carver, 75 — 559; Jones v. McKinnon, 87—294. Sec. 180. Infants to sue by guardian or next friend. C. C. P.,s. 58. 1870-'71, c. 233, s. 1. 1871-'2. c. 05, s. 1. In actions and special proceedings wlienever any of the parties plaintiff are infants, idiots, lunatics, or per- sons non compos mentis, whether said infants, idiots, lu- natics or persons non compos mentis, be residents or non- 68 CODE OF CIVIL PKOCEDURE. [Chap 10. residents of this State; said infants, idiots, lunatics or persons non compos mentis shall appear by their general or testamentary guardian, if they have any within the State; and if there shall be no such guardian, then said infajits, idiots, lunatics or i^evsoua non compos ment is vaay appeal by their next friend. Rankin v. Allison, 64^073; Branch v. Goddin, 2 Winst., 105; Falls v. Gorrell, 66—4.55; Mason v. McCoimick, 75—263; George v. Higb, 85— 118. Sec. 181. Infants, &c., to defend by guardian ad litem. C. C. P., s. 59. 1870-'l, c. 233, s. 5. 1871-'2, c. 95, s. 2. In all actions and special proceedings whenever any of the defendants are infants, idiots, lunatics, or |;ersons non covipos mentis, said infants, idiots, lunatics, or per- sons non compos mentis, shall defend by their general or testamentary guardian, if they have any within this State, whether said infants, idiots, lunatics, or persons non compos mentis, are residents or non-residents of this State; and if said infants, idiots, lunatics, or persons no/i compos mentis, have no general or testamentary guardian within this State, and any of the defendants in said ac- tion or special proceeding shall have been summoned, then it shall be lawful for the court, wherein said action or special proceeding is pending, upon motion of any of the parties to the said action, or special pioceeding, to appoint some discreet person to act as guardian ad litem, to defend in behalf of such infants, idiots, lunatics, or persons non compos mentis, and such guardian so ap- pointed shall, if the cause in which he is appointed be a civil action, file his answer to the complaint within the time required for other defendants, unless such time be extended by the court for good cause, and if the cause in which he is so appointed be a special proceeding, a copy of the complaint, with the summons, shall bo served on said guardian ad litem, and after twenty days' notice of said summons and comijlaint in such special proceeding, and after answer filed as above prescribed in such civil action, the court may proceed in the cause to final judg- ment, and decree therein in the same manner as if there had been personal service upon the said infant, idiot, lu- natic, or person non compos mentis, defendants, and any decree or judgment in the case shall conclude the infant, idiot, lunatic, or person non compos mentis, defendants, as effectually as if he-or they had been personally sum- moned. Chap. 10.] CODE OF CIVIL PEOCEDURE. 69 Hyman v. Jarnigan, 65—96; Isler v. Jlurphy, 71—436; Allen v. Shields, 72—504; Moore v. Gidney, 75—34; Chambers v. Penland, 78—53; Bass v. Bass, 78—374; Gulley v. Macy, 81—356; Nicholson v. Cox, 83—44; Mat- thews V. Joyce, 85 — 258. Sec. 182. Guardian ad litem to file answer. 1870-'l, c. 233, s. 4. Whenever any guardian ad litem shall be appointed, he shall file an answer in said action or special proceeding, admitting or denying the allegations thereof; the costs and expenses of which said answer, in all applications to sell or divide the real estate of said infants, shall be paid out of the proceeds of the property, or in case of a divi- sion, shall be charged upon the land, if the sale or division shall be ordered by the court, and if not ordered in any other manner the court shall direct. Moore v. Gedney, 75—34; Gulley v. Macey, 81—356. Sec. 183. Who to be plaintiffs. C. C. P., s. 60. All persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs except as otherwise provided. McKesson v. Mendenhall, 64r-502; Flack v. Dawson, 69—42; Gregory V. Gregory, 69—522; Wade v. Saunders, 70— 277; State v. Blair, 76— 78; Rollins V. Rollins, 76—264; Owens v. Alexander, 78—1; Mebane v. Lay- ton, 86-571. Sec. 184. "Who to he defendants. C. C. P., s. 61. Any person may be made a defendant who has, or claims, an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete deter- mination or settlement of the questions involved therein; and in an action to recover the possession of real estate, the landlord and tenant thereof may be joined as defend- ants; and any person claiming title or right of possession to real estate may be made party plaintiff or defendant, as the case may require, to any such action. Jloore ex parte, 64-90; Carney v. Whitehurst, 64—426; Harkey v. Hous- ten, 65—137; Bear v. Cohen, 05— 511; Falls v. G^imblc, 66—455; Isler v. Foy, 66—547; Bntchelor v. Macon, 67—181; Rowland v, Gardner, 69—53 Gregory v. Gregory, 69— 5-23: Wade v. Saunders, 70—270; AVade v. Saun (Jers, 70—277; Rollins v. Rollins, 76-264; Colgrove v. Koonce, 76—363 Long V. Swindell, 77—176; Atto. Gen. v. Simonton, 78—57; Winfield v, Burron, 79—388; Paschall v. Brandon, 79—504; Beard v. Hall, 79—506 Cecil V. Smith, 81—285; Gill v. Young, 82—273; Lytic v. Bcgcn, 82—301 McCaskill v. Lancashire, 83—393; Keathly v. Branch, 84—203; Swcpsonv Johnston, 84r-449; Maddrey v. Long, 86—383; Nimrockv. Scanlin, 87— 119 70 CODE OF CIVIL PEOCEDUEE. [Chap. 10. Sec. 185. Parties to be joined, &c. C. C. P., s. 62. Of the parties to the action, those who are united in interest must be joined as i^laintifts or defendants; but if the consent of any one who should have been joined as plaintiff cannot be obtained, he may be made a defend- ant, the reason thereof being stated in the complaint; and when the question is one of a common or general interest of many persons, or where the parties may be very numerous, and it may be impracticable to bring them all before the couit, one or more may sue or defend for the benefit of the whole. Lewis V. McNatt, 65— C3; Mcrwiu v. Ballard, G5— 168; Flack v. Dawson, 69 — 43; Gregory V. Gregory, 69—522; Wilson v. Arentz, 70—670; Von- Glalin V. Harris, 73—323; VouGJalm v. Laltimer, 73—333; Ten-Broeck v. Orchard, 74 — 409; VonGlahn v. DeRosset, 76—293; Long v. Swindell, 77— 176; Gill V. Young, 82—273; McCormac v. Wiggins, 84^278; Bronson v. Ins. Co., 85—411. Sec. 186. Parties to bills and notes, &c. C. C. P., s. 63. Persons severally liable upon the same obligation or instrument, including the parties to bills of exchange and promissory notes, may aU or any of them he included in the same action at the option of the plaintiff. Merwin v. Ballard, 65-168; Gudger v. Baird, 66—438; Wooten t Maultsby, 69—162; Logan v. Wallis, 76—416; Syme v. Bunting, 86—175. ' Sec. 187. Joint contracts of co-partners. IJ. C, c. 31, s. 84. 1871-'2, c. 24, s. 1. In aU cases of joint contracts of co-partners in trade or others, suit may be brought and prosecuted on the same against aU, or any number of the persons making such contracts. McDowell V. Butler, 3 Jon. Eq., 311; Winston v. Dalby, 64—299; Mir- win V. Ballard, 65 — 168; Lane v. Richardson, 79 — 159. Sec. 188. Actions, when not to abate. C. C. P., s. 64. K. C, c. 1, s. 4. R. C, c. 46, s. 43. (1) No action shall abate by the death, marriage or other disability of a party, or by the transfer of any inter- est therein, if the cause of action survive or continue. In case of death, except in suits for penalties, and lor darn- ages merely vindictive, marriage or other disability of a party, the court, on motion at any time within one year thereafter, or afterwards on a supplemental complaint, may allow the action to be continued, by, or against, liis representative or successor in interest. In case of any other transfer of interest, the action shall be contmuedin Chap. 10.] CODE OF CIVIL PEOCEDURE. 71 the name of the original party, or the court may allow the person to whom the transfer is made, to be substi- tuted in the action. ■ Thompson V. Badham, 70— 141 ; Baggarly v. Calvert, 70— G88; SbieWa V. Lawrence, 72 — 43; Sledge v. Reid, 73 — 440; Moore v. R. R., 74—528: Pennington v. Pennington, 75—356; Lord v. Beard, 79—5. (2) After a verdict shall be rendered in any action for a wrong, such action shall not abate by the death of a party. Thompson v. Badham, 70—141; Shields v. Lawrence, 73—43; Sledge v. Reid, 73—440. (3) At any time after the death, marriage, or other dis- ability of the party plaintiff, the court in which an action is pending, ul:)on notice to such persons as it may direct, and upon application of any person aggrieved, may, m its discretion, order that the action be deemed abated, unless the same be continued by the proper parties, within a time to be fixed by the court, not less than six months, nor exceeding one year from the granting of the order. Baggarly v. Calvert, 70—688. Sec. 189. Court may determine controversy an inter- pleader. C. C. P., s. 65. The court either between the terms, or at a regular term, according to the nature of the controversy, may determine any controversy before it, when it can be done without prejudice to the rights of others, or by saving their rights; but when a complete determination of the controversy cannot be had without the presence of other parties, the court must cause them to be brought in. A nd when in an action for the recovery of real or personal property, a person not a party to the action, but having an interest in the subject matter thereof, makes applica- tion to the court to be made a party, it may order him to be brought in by the proper amendment. A defendant against whom an action is pending upon a contract or for specific real or personal property, upon proof by affidavit thai a person not a party to the action makes a demand against him for the same debt or property without collu- sion with him, may at any time before answer, apply to the court, upon notice to that person and the adverse party, for an order to substitute that person in his place, and to discharge him from liability to either, on his pay- ing into court the amount of the debt, or dehvering the possession of the property or its value to such person as 72 CODE OF CIVIL PROCEDURE. [Chap. 10. the court shall direct. The court, in its discretion, may make such an order. Ramsour V. Ramsour, 63—231; McKesson v. Mcadeuhall, 04 — 286; Ear- key v. Houston, 65—137; Matthews v. McPlierson, 65— 1«9; Dewey v. White, 65— 225; Bates V. Lilly, 65— 232; Bear v. Cohen, 65— 5U;Clcm- mons V. Ilamplou, 70 — 534; Sluiler v. Millsaps, 71—297; Tlionias v. Kelly, 74 — 416; Isler v. Murphy, 76 — 52; Colgrove v. Koonce, 76 — 363; Alto-Gen. T. Simonlon, 78—57; Winfield v. Burton, 79—388; Cecil v. Smith. 81—285; Sims V. Goettle, 82—268; Lytle v. Burgen, 82—301; Pox v. Kline, 85—173; Maddrey v. Long, 86 — 383. TITLE V. or THE PLACE OF TRIAL. Section. 190. Actions to be tried where sub- ject matter situated. 191. Actions to be tried where cause of action arose. 192. Actions to be tried where plain- tiff or defendant resides. 193. Actions against executors and administrators, and upon offi- cial bond. 194. Actions against foreign corpora- Section. tions; where and by whom brought. 195. Change of place of trial. 196. Judges autborized to remove causes from one county to another. 197. What requisite to authorize such removal. 198. On removal of an action, what to be sent with transcript. Sec. 190. Actions to l>e tried where subject matter situ- ated. C. C. P., s. 66. Actions for the following causes must be tried in the county in which the subject of the action, or some part thereof, is situated, subject to the power of the court to change the place of trial, in the cases provided in this code: (1) For the recovery of real property, or of an estate or interest therein, or for the determination in any form of such right or interest, and for injuries to real prop- erty; (2) For the partition of real property; (3) For the foreclosure of a mortgage of real property; (4) For the recovery of persoi^al property distrained for any cause. Fraley v. March, 68—160; Phillips v. Holmes, 71—250; Atto.-Gen. v. Simonton, 78—57; Askew v. Bynum, 81—350. Chap. 10.] CODE OF CIVIL PROCEDUEE. 73 Sec. 191. Actions to l>e tried where cause of action arose. C. C. P., s. 67. Actions for the following causes must be tried in the county where the cause, or some part thereof, arose, subject to the hke power of the court to change the place of trial, in the cases provided in this code: (1) For the recovery of a penalty or forfeiture, imposed by statute; except that, when it is imposed for an offence committed on a sound, bay, river, or other body of water, situated in two or more counties, the action may be brought in any county bordering on such sound, bay, river, or other body of water, and opposite to the place where the offence was committed; (2) Against a public officer or person especially ap- pointed to execute his duties, for an act done by him by virtue of his office; or against a person who by his com- mand or in his aid, shall do anything touching the duties of such officer. Johnston v. Com'rs, 67—101; Alexander v. Com'rs, 67—330; Jones v. Com'rs, 69—413; Steele v. Com'rs, 70—137; Pliillips v. Holmes, 71—350. Sec. 192. Actions to be tried where plaintiff or defendant resides. C. C. P., s. 68. 1868-'9, c. 59. 1868-'9, c. 277, s. 6. In all other cases the action shall be tried in- the county in which the plaintiffs or the defendants, or any of them, shall reside at the commencement of the action; or if none of the defendants shall reside in the state, then in the county in which the plaintiffs, or any of them, shall reside; and if none of the parties shaU reside within the state, then the same may be tried in any county, which the plaintiff shall designate in his summons and complaint, subject, however, to the power of the court to change the place of trial, in the cases provided by statute. Rankin v. Allison, 64—673; Dewey v. White, 65—235: Phillips v. Holmes, 71—350; Abramsv. Curetou, 74^-533; Fox v. Cline, 85—173. Sec. 193. Actions against executors and administrators, and upon official bonds. C. C. P., s. 68. (a). 1868-'9, c. 258, s. 1. AU actions upon official bonds or against executors and administrators in their official capacity, shall be institu- ted in the county where the bonds shaU have been given, if the principal or any of the sureties on the bond is in the county; if not, then in the plaintiff's county. Cloman v. Staton, 78 — 335; Devereux v. Devereux, 82 — 13. 4 7i CODE OF CIVIL PROCEDURE. [Chap. lo. Sec. 194. Actions against foreign corporations; where and by whom brought. C. C. P., s. 361. 1876-'7, c. 170. All action against a corporation created by or under the laws of any other state, government, or country, may be brought in the superior court of any county in which the cause of action arose, or in which it usually did business, or in which it has property, or in which the plaintiffs, or either of them, shall reside, in the fol- lowing cases: (1) By a resident of this state, for any cause of action; (2) By a plaintiff, not a resident of this state, when the cause of action shall have risen, or the subject of the action shall be situated within this state. Sec. 195. Change of place of trial. C. C. P., s. 69. If the county designated for that purpose, in the sum- mons and complaint, be not the proper county, the ac- tion may, notwithstanding, be tried therein, unless the defendant, before the time of answering expires, demand in writing that the trial be had in the proper county, and the place of trial be thereupon changed by consent of parties, or by order of the court. The court may change the place of trial in the follow- ing cases: (1) When the coimty designated for that purpose is not the proper county; (2) When the convenience of witnesses and the ends of justice would be promoted by the change; (3) When the judge shall have been, at any time, in- terested as party or counsel. When the place of trial is changed, all other proceedings shall be had in the county to which the place of trial is changed, unless otherwise pi-ovided by the consent of the parties in writing duly filed, or by order of court; and the papers shall be filed or transferred accordingly. R. C, c. 31, ss. 115—118; 1870-'l. c. 30, s. 1. Rankin V. Allison, G4— 673; Carter v. R. R. Co., 08—340; Stanley ▼. Mason, 69— 1; Jones v. Com'rs, 69—412; Phillips v. Holmes, 71— 250; Clomau V. Staton, 78 — 235; State v. Swcpson, 81 — 571. Sec. 196. Judges authorized to remove causes from one county to another. 1879, c. 45. In all civil and criminal actions in the superior and Chap. 10.] CODE OF CIVIL PEOCEDURE. 75 criminal courts, in which it shall be suj;e;ested on oath, or by affirmation, on behalf of the state, or the traverser of the bill of indictment, or of the jjlaintiff or defend- ant, that there are proliable grounds to believe that jus- tice cannot be obtained in the county in whicii the action shall be pending, the judge shall be authorized to order a copy of the record of said action to be removed to some adjacent county for trial, if he shall be satisfied that a fair trial cannot be had in said county, after hear- ing all the testimony which may be offered on either side by affidavits. Smith V. Greenlee, 3 Dev., 387; State v. Seaborn, 4 Dev., 305; State v. Duncan, 6 lied., 98; State v. Sbepheid, 8 lied., 193; State v. Cunningham, 72—469; Phillips v. Lentz, 83—240; Boydca v. Williams. 84—608. Sec. 197. Wliat requisite to authorize such removal. 1870, c. 45. No action, whether civil or criminal, shall be so re- moved, unless the affidavit shall set forth particularly and in detail the ground of the application. And it shall be competent for the other side to controvert the allega- tions of fact iu said application, and to offer counter affi- davits to that end. And the judge shall not order the removal of any such action, unless he shall be satisfied after thorough e.-caminatiou of the evidence as aforesaid, that the ends of justice demand it. Sec. 198. On removal of an action, what to be sent with transcript. R. C, c. 31, s. IIS. 1800, c. 694, s. 12. 1810, c. 787. When a cause shall be directed to be removed, the clerk shall transmit to the court, to which the same is removed, a transcript of the record of the case, with the prosecution bond, bail bond, and the depositions, and all other written evidences filed therein. Slate V. Collins, 3 Dev., 117; State v. Rc-id. 1 D. & B., 377; State v. Dun- can, 6 Ircd., 23G; Stale v. Baitield, 8 Ircd.. 344; Statov. Swepson, 81—571; Phillips V. Lentz, 83—240; Com'rs v. Lemley, 83—341. CODE OF CIVIL PROCEDURE, [Chap. 10. TITLE VI. OF THE MANNER OF COMMENCING CIVIL ACTIONS. Section. 199. Civil actions commenced by summons. 200. Summons in actions returnable to a regular term of the supe- rior court. 201. Summons returnable. 203. When the summons is issued more tliaii ten days before the next succeeding term. 203. Summons to be attested. 204. Summons in the same action may issue to several counties at tbe same time. 805. Sheriff leiurning that defendant is not to be found, plaintiff may issue alias ot pluries sum mons. 206. Filing of complaint. 207. Answer of defendant. 208. Reply to answer. 209. Before issuing summons clerk to take undertaking, &c. 210. How to sue as a pauper; how ob- tained. 211. Court may assign counsel. 212. No costs or fees recoverable. 213. What summons to contain. 214. Service of summons. Section. 215. Actions against executors and administrators. 216. Notice of no personal claim. 217. Manner of service of summons. 218. Service by publication. 219. Manner of publication. 320. Defendant allowed to defend before and after judgment. 221. Actions for foreclosuie of mort- gage. 222. Joint and several debtors; part- ners. 223. Parties not summoned in action, on joint contract, may be sum- moned after judgment. 224. Party summoned may answer or defend. 225. Subsequent pleadings and pro- ceedings same as in action. 226. Answer and reply to be verified as in an action. 227. "When service complete. 228. Proof of service. 229. Jurisdiclion;appcarance; notice of lis pendens. 230. Parties may apply for relief to the superior court in vacation or in term time. Sec. 199. Civil actions commenced by summons. C. C. P., s. 70. Civil actions shall be commenced by issuing a sum- mons. Patrick v. Joiner, 63—573; Heilig v. Stokes, 63—612; McArlhur v. Mc- Eachin, 04—72; Thompson v. BiTry, 61-79; Woodley v. Gilliam, 64—649; Guion v. Mclvin, 09—242; Steele v. Coui'rs, 70—137; Belmont v. lieilly, 71 —200; Calvert V. Peebles, 82—334. Chap. 10.] CODE OF CIVIL PEOCEDURE. 77 Sec. 200. Summons in actions returnable to a regular term of the superior court. 1870-'7, c. 85, s. 1. The summons sliall run in the name of the state, be signed by the clerk of the superior court having juris- diction to try the action, and shall be directed to the sheriff or other proper officer of the county in which the defendant, or one or more of the defendants, resides or may be found. It shall be returnable to the regular term of the superior court of the county, where the plaintiff, or one or more of them, or the defendant, or one or more of them, resides, and from which it issued; and shall command the sheriff, or other proper officer, to summon the defendant, or defendants, to appear at the next ensuing term of the superior court and answer the complaint of the plaintiff, and shall be dated on the day of its issue. The officer to whom the summons is addressed shall note on it the day of its delivery to him, and shall execute it at least ten days before the begin- ning of the term to which it shall be returnable, and shall return it on the first day of the term. Johnson v. Fiitrell, 86—123; Yeargin v. Siler, 83—348; "Wyche v. New- som, 87—144. Sec. 201. Summons returnable. 1876-'7, c. 85, s. 2. If any summons shall be issued within less than ten days of the beginning of the next term of the superior court for the county in which it is issued, it shall be made returnable to the second term of said court next after the date of its issuing, and shall be executed and returned by the proper officer accordingly. Sec. 202. When the summons is issued more than ten days before the next succeeding term. 1876-'7, c. 85, s. 3. When the summons shall be issued more than ten days before the next succeeding term of the superior court of the county to which it is returnable, and shaU be exe- cuted by the proper officer within less than ten days of said term, it shall be returned as if executed in proper time, and the case placed on the summons docket and continued to the next succeeding term, at which term it shall be treated in all respects as if said next succeeding term had been the return term thereof: Provided, that the parties to the action may, by agreement, make up the pleadings at the term to which the summons is return- able: Provided further, that nothing herein contained shall be construed to release or discharge the sheriff or 78 CODE OP CIVIL PROCEDURE. [Ch.aj*. 10. other officer from any liability he may incur, by failing to execute the summons in due time. Ycargiu v. Silor, 83 — U48. Sec. 303. Summons to be attested. lS7C-'7, c. 85, s. 4. Eveiy summons addressed to the sheriff or other officer of any county, other than that from whicli it issued, shall be attested by the seal of the court: but when it shall be addressed to the sheriff or other officer of the county in which it issued, it shall not be attested by the seal of the court. Joucs V. Giiptoii, Go — 48; Johnson v. Kcnncday, 70 — 435; Clicrxlliam v. Crews, 81—343; Taylor v. Harris, S3— 2J; Dank v. McArtliur, 83—107; Cal- vert v. Peebles, ^3—334; Lee v. Euro, 82—428; Taylor v. Taylor, 83—116; Yeargia v. Silcv, 83—348. Sec. 204. Summons in the same action may issue to sev- eral counties at the same time. 11. C, c. 31, s. 44. 1789, c. 314, ss. 1, 2. 1831, c. 14, s. 2. The plaintiff may issue writs of summons, directed to the sheriff of any county where a defendant is most likely to be found, noting on each summons that it is issued in the same action; and when the said writs are returned, they shall be docketed as if only one had issued, and if any defendant shall not be served with such process, the same proceeding shall be had as in other cases of similar pi'ocess not executed. Sec. 205. SherifT returning that defendant is not to he found, plaintiff may issue alias or pluries summous. K. C, c. 31,s. 52. 1777, c. 115, ss. 23, 71. When the sheriff shall return in a civil action or spec- ial proceeding, that the defendant is not to be found in his county, the plaintiff may sue out an alias ov pluries summons, returnable in the same manner as original process. McMIUanv. Parsons, 7 Jon., 103; Dcavcr v. Keith, Phil., 428. Sec. 306. Filingr of complaint. 1868-'9, c. 76, s. 3. 1870-'l, c. 42, s. 3. The plaintiff shall file his complaint in the clerk's office on or before the third day of the term to which the ac- tion is brought, otherwise the suit may, on motion, be dismissed at the cost of the plaintiff. McAdoo V. Benbow, G3 — 4G1; Haywood v. Bryan, 03— 571; McAnliiir V. McEachin, G4— 73; Moore v. ll.R. Co., 67—209; Harvey v. Edmunds, 08—343; Gilchrist v. Kitchen, 86—30; Ellington v. WicUer, 87— 14. Chap. 10.] CODE OF CIVIL PROCEDUEE. T9 Sec. 207. Answer of defendant. 1S70-'1, c. 42, s. 4. The defendant shall appear and demur, or answer at the same term to which the summons shaU be returnable, otherwise the plaintiff may have judgment by default. Howell V. Ferguson, 87—113. Sec. 20S. Keply to answer. 1870-'l, c. 42, s. 5. The plaintiff shall join issue on the demurrer or reply to the answer at the same term to which such demurrer or answer may be filed; and the issues, whether of law or of fact, shall stand for trial at the next term succeed- ing the term at which the pleadings are completed. JIcAdoo V. Benbow, 63—461; Witkowsky v. Wasson, 69—38; Woody V. Jordan, 69—189; Wilson v. Moore, 73—558; Manix v. Howard, 82— 125 ; Boddie v. Woodard, 83—3. Sec. 209. Before issning summons clerk to take undertak- ing. &c. R. C, c. 31, s. 40. C. C. P., s. 71. 1868-'9, c. 277, s. 13. Before issuing the summons, the clerk shall require of the plaintiff,' either to give an undertaking with suffi- cient surety in the sum of two hundred dollars, with the condition that the same shall be void, if the plaintiff shall pay the defendant all such costs; as the defendant shall recover of him in tlie action; or to deposit a like suui with him as a security to the defendant for such costs; and in case of such deposit, he shall give to the plaintiff and to the defendant a certificate to that effect; or to file with him a written authority from some judge or clerk of a superior court, authorizing the plaintiff to sue as a pauper. Bledsoe v. Nixon, 69—81 ; Hallman v. Dellinger, 84—1 ; Matthews v. Joyce, 85—258. Sec. 210. How to sue as a panper; how obtained. C. C. P., s. 72. lS68-'9, c. 96, s. 1. Any judge or clerk of the superior coiurt may authorize any person to sue as a pauper in their respective courts, when he shall prove, by one or more witnesses, that he has a good cause of action, and shall make affidavit that he is unable to comply v»ith the last section. Corn V. Stcpp, 81—599; BusUee v. Surlcs, 85—90. Sec. 211. Court may assign counsel. 1868-'9, c. 96, s. 2. The court to wliich such summons is made return- able may, at its discretion, assign to the person, suing as a pauper, learned counsel, who shall prosecute his ac- tion. 80 CODE OF CIVIL PEOCEDUEE. [Chap. 10. Sec. 212. No costs or fees recoverable. 1868-'9, c. 96, s. 3. Whenever any person shall sue as a pauper, no officer shall require of him any fee, and he shall recover no costs. Rowarkv. Gaston, 67—291; Deal v. Palmer, 08— 215; Porter v. Jones, 68—320; Brendle V. Heron, 68 — 496; Miazza v. Calloway, 74—31; Sumner V. Candler, 74^263; Bushee v. Surles, 85—90; Hall v. Younts, 87—285. Sec. 213. "What summons to contain. C. C. P., s. 74. 1876-'7, c. 241, s. 1. There shaU be inserted in the summons a notice in sub- stance as follovi^s: that if the defendant shall fail to an- swer the complaint within the time specified, the plaint- iff will apply to the court for the relief demanded in the complaint. Graham V. R. R. Co., 64r— 631; Rankin v. Allison, 64^673; Woody v. Jordan, 69—189; Phillips v. Holland, 78—31; Nicholson v. Cox, 83—44; Nicholson V. Cox, 83— 48; Price v. Cox, 83—261. Sec. 214. Service of summons. 1876-'7, c. 241, s. 2. The summons shall be served in all cases, except as hereinafter provided, by the sheriff or other officer, read- ing the same to the party or parties named as defendant, and such reading shall be a legal and sufficient service. Middleton v. Duffle, 73—72; Johnson v. Futrell, 80—122; Webster v. Laws, 86—178. Sec. 215. Actions against executors and administrators. 1876-'7, c. 241, s. 6. In addition to the remedy by special proceeding, as provided by law, actions against executors, adminis- trators, collectors and guardians may be brought origin- ally to the superior court at term time ; and in all such cases it shall be competent to thecourt in which said actions shaU be pending to order an account to be taken by such person or persons as said court may designate, and to adjudge the apphcation or distribution of the fund ascer- tained, or to grant other reUef, as the nature of the case may require. Pegram v. Armstrong, 82—326. Sec. 216. Notice of no personal claim. C. C. P., s. 81. In case of a defendant, against whom no personal claim is made, the plaintiff may deliver to such defendant with the summons, a notice subscribed by the plaintiff or bis attorney, setting forth the general object of the action, a Chap. 10.] CODE OF CIVIL PROCEDUEE. 81 brief description of the property affected by it, if it affects real or personal property, and that no personal claim is made against such defendant. If a defendant on whom such notice is served, unreasonably defends the action, he shall pay costs to the plaintiff. Sec. 317. Manner of service of summons. C. C. P., s. 82. 1874:-'5, c. 168, s. 1. The summons shall be served by delivering a copy thereof in the following cases: (1) If the action be against a corporation, to the presi- dent or other head of the corporation, secretary, cashier, treasurer, director, managing or local agent thereof : Provided, that any person receiving or collecting moneys within this state for, or on behalf of, any corporation of this or any other state or government, shall be deemed a local agent for the purpose of this section; but such ser- vice can be made in i-espect to a foreign corporation only when it has property within this state, or the cause of action ai'ose therein, or when the plaintiff resides in the state, or when such service can be made within the state, personally upon the president, treasurer or secretary thereof; KirkUind v. Hogan, 65—144; Cunningham v. Ex. Co., 67 — 425; Turner V. Eailioad Co., 70 — 1; Islcv v. Murphy, 71 — 436; Katzenstein v. R. K. Co., 78—283; Gullcy v. Macy, 81—356. (2) If against a minor under the age of fourteen years, to such minor personally, and also to his father, mother or guardian, or if there be none within the state, then to any person having the care and control of such minor, or with whom he shall reside, or in whose service he shall be employed ; (3) If against a person judicially declared to be of un- sound mind, or incapable of conducting his own affairs in consequence of habitual drunkenness, and for whom a committee or guardian has been appointed, to such com- mittee and to the defendant personally. McAden v. Hooker, 74—24. Sec. 318. Service by publication. C. C. P., s. 83. Where the person on whom the service of the sum- mons is to be made, cannot, after due diligence, be found within the State, and that fact appears by affidavit to the satisfaction of the court, or to a judge thereof, and it in like manner appears that a cause of action exists against the defendant in respect to whom service is to be made, or that he is a proper party to an action relating 82 CODE OF CIVIL PROCEDUEE. [Chap. 10. to real property in this state, such court or judge may grant an order that the service be made by pubUcation of a notice in either of the following cases: (1) Where the defendant is a foreign corporation, and has property within the state, or the cause of action arose therein ; Turner v. K. R.Co., 70—1; Spiersv. Halstead, 71—209; Wheelerv. Cobb, 75—21; Branch v. Fi-auk, 81—180; Weaver v. Roberts, 84—493. (2) Where the defendant, being a resident of this state, has departed therefrom, with intent to defi-aud his creditors, or to avoid the service of a summons, or keeps himself concealed therein with a like intent; (3) W^here he is not a resident of this state, but has property therein, and the court has jurisdiction of the subject of the action; Spiersv. Halstead, 71—209; Pender v. Griffin, 73—270; Wlieelcr v. Cobb, 75—21 ; Windley v. Bradway, 77—333. (4) Where the subject of the action is real or personal property in this state, and the defendant has, or claims a Men or intei-est actual or contingent, therein, or the relief demanded consists wholly or partly in excluding the de- fendant from any lien or interest therein; (5) Where the action is for divoi'ce, and in all cases where publication is made, the complaint must be filed, before the expiration of the time of publication ordered. King V. King, 84—33. Sec. 319. Manner of publication. C. C. P., s. 84. 1876- '7, c. 241, s. 3. The order must direct the publication in any one or two newspapers to be designated as most likely to give notice to the person to be served, and for such length of time as may be deemed reasonable, not less than once a week for six weeks, a notice, giving a title of the action, the purpose of the same, and requiring the defendant to appear and answer, or demur to the complaint at a time and place therein mentioned; and no publication of the summons, nor mailing of the summons and complaint, shall be deemed necessary. Pender v. Griffin, 73—270; BurweU v. Lailcrty, 76—383; Price v. Cox. 83—261. Sec. 220. Defendant allowed to defend before and after judgment. C. C. P., s. 85. The defendant against whom publication is ordered, or his representatives, on application and sufficient cause shown at any time before judgment, must be allowed Chap. 10.] CODE OF CIVIL PKOCEDUKE. 83 to defend the action: and, except in an action for divorce, the defendant against whom publication is ordered, or his representatives, may in like manner, upon good cause shown, be allowed to defend after judgment, or at any time within one year after notice thereof, and within five years after its rendition, on such terms as may be just; and if the defence be successful, and the judgment or any part thereof shall have been collected, or otherwise enforced, such restitution may thereupon be compelled as the court may direct; but title to property sold under such judgment to a purchaser in good faith shall not be thereby affected. Utley V. Peters, 72—535. Sec. 221. Actions for foreclosure of mortgage. C. C. P., s. 86. In actions for the foreclosure of mortgages on real es- tate, if any party having any interest in, or lien upon, such mortgaged premises, is unknown to the plaintiff, and the residence of such party cannot, with reasonable dili- gence, be ascertained by him, and such fact shall be made to appear by affidavit to the com't, such court may grant an order that a notice be served on such un- known party by publishing for six weeks, once in each week successively, in a newspaper printed in the county where the premises lie, if there be any ; if not, then in some newspaper published in Ealeigh, which publication shall be equivalent to a personal service on such unknown party. Nimrock v. Scanlin, 87—119. Sec. 222. Joint and several debtors; partners. C. C. P., s. 87. Where the action is against two or more defendants, and the summons is served on one or more of them, but not on all of them, the plaintiff may proceed as follows: (1) If the action be agamst defendants jointly indebted upon contract, he may proceed against the defendants served, unless the court otherwise direct, and if he recover judgment, it may be entered against all the defendants thus jointly indebted, so far only as that it may be en- forced against the joint property of all, and the separate property of the defendants served, and if they are sub- ject to arrest, against the persons of the defendants served; or, (2) If the action be against defendants severally liable, i84 CODE OF CIVIL PEOCEDURE. [Chap. 10 he may proceed against the defendants served, in the same manner as if they were the only defendants; (3) If all the defendants have been served, judgment may be taken against any or either of them severally, vs^hen the plaintiff would be entitled to judgment against such defendant or defendants if the action had been against them or any of them alone; (4) If the name of one or more partners shall, for any cause, have been omitted in any action in which judg- ment shall have passed against the defendants named in the summons, and such omission shall not have been pleaded in such action, the plaintiff in case the judgment therein shall remain unsatisfied, may by action recover of such partner separately, upon proving his joint liabil- ity, notwithstanding he may not have been named in the original action; but the plaintiff shall have satisfaction of only one judgment rendered for the same cause of ac- tion. Memin v. Ballard, 65—168; Guano Co. v. Willard, 73—531. Sec. 223. Parties not summoned in action, on joint con- tract, may be summoned after judgment. C. C. P., s. 318. Wl] en a judgment shall be recoverel against one or more of several persons jointly indebted upon a contract by proceeding, as provided in the preceding section, those who were not originally summoned to answer the com- plaint may be summoned to show cause why they should not be bound by the judgment, in the same manner as if they had been originally summoned. Guano Co. v. Willard, 73—521; Lane v. Richardson, 79—159 ; C. C. P., section 87, Mauney v. Holmes, 87 — 438. Sec. 224. Party summoned may answer or defend. C. C. P., s. 322. Any party so summoned may answer within the time specified denying the judgment, or setting up any de- fence thereto which may have arisen subsequently to such judgment: aud may make any defence which he might have made to the action if the summons had been served on him at the time when the same was originally commenced and such defence had been then interpor,ed to such action. Guano Co. v. Willard, 73—531; Maunoy v. Ilolmcs, 87—433. Sec. 225. Subsequent pleadings and proceedings same as in action. C. C. P., s. 323. The party issuing the summons may demur or reply to Chap. 10.] CODE OF CIVIL PEOCEDURE. 85 the answer, and the party summoned may demur to the reply ; and the issues may be tried and judgment may be given in the same manner as in an action, and enforced by execution, if necessary. MauuL'y v. Holmes, 87—428. Sec. 226. Answer and reply to be verified as in action. C. C. P., s. 324. The answer and reply shall be verified in the like cases and manner and be subject to the same rules as the an- swer and reply in an action. iliiuuey V. Holmes, 87—428. Sec. 227. "When service complete. C. C. P., s. 88. In the cases in which service by publication is allowed, the summons shall be deemed served at the expiration of the time prescribed by the order of publication, and the party shall then be in court. Kicliolsoa V. Cox, 83 — 44. Sec. 238. Proof of service. C. C. P., s. 89, Proof of the service of the summons or notice must be: (1) By the certificate of the sheriff or other proper officer; (2) In case of pubhcation, the affidavit of the printer, or of his foreman or piincipal clerk, showing the same; (3) The written admission of the defendant. Hyman v. Jaraigan, 65— 9G; Middleton v. Duffy, 73—72; Bank v, Wil- son, 80—200; Nicholson V. Cox, 83—44. Sec. 229. Jurisdiction; appearance, notice of fispeneiens. C. C. P., s. 90. From the time of the service of the summons in a civil action, or the allowance of a provisional remedy, the court is deemed to have acquired jurisdiction, and to have control of all subsequent proceedings. A voluntary ap- pearance of a defendant is equivalent to personal service of the summons upon him. In an action affecting the title to real property, the plaintiff, at the time of filing tne complaint, or at any time afterwards, or whenever a warrant of attachment shall be issued, or at any time afterwards, the plaintiff, or a defendant when he sets up an affirmative cause of action in his answer and demands substantive relief, at the time of filing his answer, or at any time afterwards, if the same be intended to affect real estate, may file with the clerk of each county in which the property is situated, a notice of the pendency 86 CODE OF CIVIL PROCEDURE. [Chap. 10. of the action, containing the names of the parties, the object of the action, and the description of the property in that county affected thereby; and if the action be for the foreclosure of a mortgage, such notice must be filed twenty days before judgment, and must contain the date of the mortgage, the parties thereto, and the time and place of registering the same. From the time of filing only, shall the pendency of the action be constructive notice to a purchaser or incumbrancer of the property affected thereby; and every person vrhose conveyance or incumbrance is subsequently executed or subsequently registered, shall be deemed a subsequent purchaser or incumbrancer, and shall be bound by all proceedings taken after the filing of such notice; to the same extent as if he were made a party to the action. For the pur- poses of this section, an action shall be deemed to be pending from the time of filing such notice: Provided, that such notice shall be of no avail unless it shall be followed by the first pubhcation of notice of the summons or by an order therefor, or by the personal service on the defendant within sixty days after such filing. And the court in which the said action was commenced may, in its discretion, at any time after the action shall be settled, discontinued or abated, on appli- cation of any person aggrieved, and on good cause shown, and on such notice as shall be directed or approved by the court, order the notice authorized by this section to be canceled of record, by the clerk of any county in whose office the same may have been filed or recorded; and such cancelation shall be made by an indorsement to that effect on the margin of the record, which shall refer to the order, and for which, the clerk shaU be entitled to a fee of twenty-five cents. Toms V. Warson, 66 — 417; Badger v. Daniel, 77 — 251; Rollins v. Henry, 78—343; Todd v. Outlaw, 79—235; Daniel v. Hodges, 87—95. Sec. 230. Parties may apply for relief to tlie superior court in vacation, or in term time. 1871-'2, c. 3, s. 1. In all cases where the superior court in vacation has jurisdiction, and all of the parties unite in the proceed- ings, they may apply for i-elief to the superior court in vacation, or in term time, at their election. Bank v. Wilson, 80—200. Chap. 10.] CODE OF CIVIL PROCEDUEE. 87 Chap. TITLE vn. THE PLEADINGS IN CIYH ACTIONS. I. II. III. IV. V. VI. VII. The Complaint. The Demukrer. The Answer. TtTTT T?FPIjY Duties and Powers of the Clerk in Rela- tion TO the Pleadings and Collateral Matter. General Rules of Pleading. Mistakes in Pleadings and Amendments. CHAPTER ONE. THE COMPLAINT. Section. 231. Forms of pleading. 233. Complaint. 283. Complaint, what to contain. 234. Complaint in action to recover debt contracted for the pur- chase of land, what to set forth. 235. If answer denies that debt was Section. contracted for purchase of land, Issue to be submitted to jury. 236. Form of judgment and execu- tion upon judgment for plain- tiff. 237. Defendant to flic bond in action for real property. Sec. 231. Forms of Pleading. C. C. P., s. 91. The forms of pleading in civil actions in courts of record, and the rules by which the sufficiency of the pleadings is to be determined, are those prescribed by this Code. Crump V. Mims, C4— 767; Parsley v. Nicholson, 65—207; Garrett v. Trotter, 65—430; Gates v. Gray, 66—443; Moore v. Edmiston, 70—510; Pescud' V. Hawkins, 71—299; Bitting v. Thaxton, 73—541; Moore v. Hobbs, 79—535; Jones v. Mial, 83—252; Gorman v. Bellamy, 83-^96. Sec. 232. Complaint. C. C. P., s. 92. The first pleading on the part of the plaintiff is the complaint. 88 CODE OF CIVIL PROCEDURE. [Chap. 10. Sec. 233. Complaint, what to contain. C. C. P., s. 93. • The complaint shall contain: (1) The title of the cause, specifying the name of the court in which the action is hrought, the name of the county in which the trial is required to be had, and the names of the parties to the action, plaintiff and defend- ant; (2) A plain and concise statement of the facts consti- tuting a cause of action, without unnecessary repetition; and each material allegation shall be distinctly num- bered; HMikcy V. Houston, C5— 137; Garrett v. Trotter, 65 — 430; Gates v. Gray, 06—443; Slielton v. Davis, 69—324; Land Co. v. Beattj', 69—329; Mooro Y. Hobbs, 77 — 6.5; Com'rs v. McPhcrson, 79 — 524; Moore v. ITobbs, 79 — 535; Boyden v. Acbenbach, 79 — 539; Youiij; v. Younc-, 81 — 91; Jones v. Mial, 82—252; Gormau v. BiUaray, 82-^96; Womble v. Leach, 83—84; Johnston v. Pate, 83—110; Brown v. Morris, 83—251. (.3) A demand of the relief to which the plaintiff sup- poses himself entitled. If the recover}'- of money be de- manded, the amount thereof must be stated. DuDQ V. Barnes, 73—273; Knight v.'Houghtalling, 85—17. Sec. 2.34. Complaint In action to recoTcr debt con- tracted for the purchase of land, what to set forth. 1879, c. 217. In actions for the recovery of a debt contracted for the purchase of land, it shall be the duty of the plaintiff to set forth in his complaint that the consideration of the debt sued on was the purchase money of certain land, describing said land in an intelligible manner, such as the number of acres, how bounded, and where situated. Dail V. Sugg, 85—104. Sec. 235. If answer denies that debt was contracted for purchase of laud, issue to be submitted to jury. 1879, c. 217. If the defendant shall deny in his answer, that the ob- ligation sued on, was for the purchase money of the land described in the complaint, it shall be the duty of the court to submit the issue so joined to the jury. Sec. 236. Form of judgment and execution, upon judg- ment for plaintiff. 1879, c. 217. If the answer does not deny the said allegation so set forth in the complaint, or if the said issue shall be found by the jury in favor of the plaintiff, it shall be the duty Chap. 10.] CODE OF CIVIL PROCEDURE. 89 of the court to have embodied in the judgment, that the debt sued on was one contracted for the purchase money of said land, describing It briefly; and it shall also be the duty of the clerk to set forth in the execution, that the said debt was one contracted for the purchase of said land, the description of which shaU be set out briefly as in the complaint. Durham v. Bostick, 73—353. Sec. 237. Defendant to file bond in action for real prop- erty. 1869-'70, c. 193, s.l. In all actions for the recovery of real property, or for the possession thereof, the defendant, before he is per- mitted to plead, answer or demur, shall execute and file in the office of the clerk of the superior court of the county wherein the suit is pending, an undertaking with good and suificient surety, in an amount to be fixed by the court, not less than two hundred dohars, to be void upon condition that the defendant pay to the plaintiff all such costs and damages as the plaintiff may recover in the action, including damages for the loss of rents and profits: Provided, that no such undertaking shall be re- quired if an attorney practicing in the court wherein the action is pending will certify to the court in \mting that he has examined the case of the defendant, and is of the opinion that the plaintiff is not entitled to recover; and if the defendant will also file an affidavit, stating that he is not worth the amount of said undertaking, in any property whatsoever, and is unable to give the same. Harkey v. Houston, 65 — 187; Deal v. Palmer, 68 — 215; Jones v. Fortune, 69—323; Justice v. Eddings, 75—581; Rollins v. Heniy, 77—467; EoUins V. Henry, 84^569. CHAPTER TWO. THE DEMUEEEE. Section. 288. Defendant to demur or answer. 289. When defendant may demur. 240. Demurrer must specify grounds of objection. Section. 241. Objection not appearing on complaint. 242. Objectionwhen deemed waived. Sec. 238. Defendant to demur or answer. C. C. P., s. 94. The only pleading on the part of the defendant is 90 CODE OF CIVIL PEOCEDURE. [Chap. 10. either a demurrer or an answer. If the plaintiff shall have failed to file his complaint within the time limited for the purpose, the defendant may move for judgment of non-suit. Eyman v. Devcreux, 03—624; Ransom v. JlcClces, G4 — 17; McKesson v. Slcnilcnhall, 04 — 503; Harris v. Johnson, 05 — 478; Andrews v. Pritclielt, 6G— 387; Gates v. Gray, OG— 442; Pescud v. Hawkins, 71—299; Green v. R. R. Co., 73— 534; VonGlilan v. DeHossctt. 70—292; Pearcc v. Alason, 78—37; McClenahaa v. Coltcn, 83—333; Finch v. Baskerville, 85—305. Sec. 239. When defendant may demur. C. C. P., s. 95. The defendant may demur to the complaint when it shall appear upon the face thereof, either: Love V. Com'rs., 04—700; Walston v. Bryan, 04—704; Lewis v: McNatt, 65—03; Jllci-vin v. Ballard, 05-108; Merwiii v. Ballard, OG— 398; Davidson V. Elms, 07—338; Green v. Green 69—394; Land Co. v. Bcatly, 69—329; Hars^'ovc v. Hunt, 73—34; Dunn v. Barnes, 73—273; Green v. R. U. Co., 73—524; Sloan v. McDowell, 75—29; Cowan v. Baird, 77—201. (1) That the court has no jurisdiction of the person of the defendant, or of the subject of the action; or Jacobs V. Smallwood, 03—112; Rives v. Williams, 03—128; Uolt v. Ise- ley, 63 — 129; Swepson v. Chapman, 03 — 130; Wallonv. McKesson, 04 — 77; Winslow V. Com'rs. 64r-318; Bank v. Britton, 66—365; Winslow v. Wcith, 66 — 432; Flack v. Dawson, 09 — 42; Green v. Green, 09—294; Hodge v. Hodge, 73—060; McFarland v. McKay, 74— 258 ; Oliver v. Wiley, 75—320; Fiuley V. Ilaycs, 81—368; Capps v. Capps, 85—408; Pearson v. Boyden, 86 — 585; Hawkins V. Hughes, 87—115. (2) That the plaintiff has not legal capacity to sue; or Peebles v. Ncwsom, 74 — 473; Gordon v. Lowther, 75 — 193. (3) That there is another action pending between the same parties for the same case; or Harris v. Johnson, 65 — 478; Woody v. Jordan. 69-189; Burns v. Ash- -worth, 72—496; Glenn v. Bank, 73—026; Righton v. Pruden, 73—61 ; Dunn V. Barnes, 73—373; Green v. R. R. Co., 73—524; Sloan v. McDowell, 75— 29; Smith v. Jloorc, 79 -82; Tuttlc v. Harrell, 85—456; Webster v. Laws, 86—178; Hawkins V. Hughes, 87—115. (4) That there is a defect of parties plaintiff or defend- ant; or Lewis V. McKatt, 65—03; Merwin v. Ballard, 05—168; Gudger v. Baird, 66—433; Davidson v. Elms, 67-228; Flack v. Dawson, 69—42; Rowland V. Gardner, 69—53; Green v. Green, 69—394; Wilson v. Arcntz, 70—070; nargriivc v. llilliard, 72—109; Burns v. Ashworlh, 72 — 496; Goodman v. Goodman, 72—508; Wilson v. Bank, 72—021; Hargrove v. Hunt, 73—24; Righton V. Pruden, 73—01; Von Glilan v. Harris, 73—323; Buic, v. B. & L. A., 74—117; McFarland v. McKay, 74—258; Peebles v. Ncwsom, 74—473; McMillan v. Edwards, 75—81; Oliver v. Wiley. 7.j— 320; Gastcr v. Hardic. 75 — 160; Gill V. Young, 82—273; Hoover v. Berrybill, 84—133; McCormac Chap. 10.] CODE OF CIVIL PEOCEDURE. 91 V. "Wiggins, 84—378; Bronson v. Insurance Co., 85^11; Lcacb v. Flem- ming, 85 — 447; Mebanc v. Laylon, 80—571. (.5) That several causes of action have been improperly united; or Land Co. v. Beatly, 09— 339; "Wootcn v. INIanlfsby, 09—403; Edgertonv. Powill. 73— C4; Adams v. Quinn, 74—359; McMillan v. Ednards, 75-81; Bank v. Harris, 84—300; Fincli v. Baskervillc, 85—305; Symc v. Blunting, 80—175; England v. Garner, 80-300. (6) That the complaint does not state facts sufficient to constitute a cause of action. Foard v. Alexander, 04—09; Leak v. Com'rs, 64—133; Harshaw v. Dob- son, 04—384; WliitaUcr v. Forbes, 08—238; Co.x v. Long, CO— 7; King v. Weeks, 70—372; Howie v. Kea. 70—559; Wilson v. Arentz. 70—670; T-ally V. Reid, 73—330; Jones v. Com'rs, 73—183; Haywood v. Rogers, 73-330; Wall V. Fairley, 73—404; Barnes v. Insurance Co., 74—33; Womble v. Lit- tle, 74—355; Adams v. Quinn, 74—359; Gordon v. Lowtber, 75-193; Powell V. Allen, 75—450; University v. R. R. Co., 76—103: Litllejobn v. Edgerton, 76—408; Bum pass v. Cliambers, 77—357; Nelberton v. Candler, 78—88; Com'is v. McPberson, 79-534; Moore v. Ilobbs, 79—535; New- hart V. Peters, 80—160; Wilson v. Lincbergcr, 83—413; Johnston v. Pate, 83—110; Alexander v. Wolfe, 83—373; Foy v. Haugliton, 83—467; Hurst V. Addington, 84—143; George v. High, 85—99; Lowery v. Perry, 85—131; Bank v. Bogle, 85—203; Oldham v. Bank, 85—340; Jones v. Com'rs, 85— 278; Tucker v. Baker, 86—1. Sec. 240. Dcmurrermnst specify grounds of objection. C. C. P., s. 90. The demurrer shall distinctly specify the grounds of ob- jection to the complaint. Unless it does so, it may be disregarded. It may be taken to the whole com- plaint, or to any of the alleged causes of action stated therein. Ransom V. McClces, 64— 17: Clark v. Clark, 64— 150; Love v. Com'rs, 04—706; Crump v. Jlimms, 64—707; Garrett v. Trotter, 05—430; State v. Young, 05—579; George v. High, 85—90; Bank v. Bogle, 85—303; Finch T. Baskervillc, 85—305; Johnston v. Smith, 80—498. Sec 241. Objection not appearing on complaint. C. C. P., s. 98. When any of the matters enumerated as grounds of demurrer do not appear on the face of the complaint, the objection may be taken by answer. Lewis V. McNatl, 65-03; Durham v. Bostick, 72—353; Burns v. Ash- worth, 73—496; Tucker v. Baker. 86—1. Sec. 243. Objection when deemed waived. C. C. P., s. 99. If no such objection be taken either by demurrer or an- 92 CODE OF CIVIL PROCEDURE. [Chap. 10. swer, the defendant shall be deemed to have waived the same, excepting only the objection, to the jurisdiction of the court, and the objection, that the complaint does not state facts sufficient to constitute a cause of action. Ransom v. McClees, 64r-:i7; Love v. Com'rs, G4— 706; Lewis v. McNatt, 65—63; Garrett V. Trotter, 65— iSO; Pescud v. Hawkins, 71—299; Duiliam V. Bosticlc, 72—353; Burns v. Asbworth, 72 — i96; McDougald v. Graham, 75— 310; Moore V. Hobbs, 77—65; Pearce v. Mason, 78—87; Young v. Young, 81—91; Bryant v. Fisher, 85—71; Finch v. Baskervillc, 85—305; Jones V. Com'rs, 85— 278; Tucker v. Baker, 86—1; Hawkins v. Hughes, 87—115. CHAPTER THREE. THE ANSWEE. Section. 1 Section. 243. Answer; what to contain. 246. Demurrer and answer. 244. Counter-claim. 247. Sham and irrelevant defences. 245. Several defences. I Sec. 243. Answer; what to contain. C. C. P., s. lOO. The answer of the defendant must contain : (1) A general or specific denial of each material allega- tion of the complaint controverted by the defendant, or of any knowledge or information thereof, sufficient to form a belief ; Erwin v. Lowry, 64^321; Garrett v. Trotter, 65—430; "Walsh v. Hall, 66—233; Swepson v. Harvey, 66 — 436; Flack v. Dawson, 69 — 42; Howie v. Rea, 70—559; Schehan v. Malone, 71—440; Bitting v. Thaxton, 72—541; .Johnson v. Bell, 74—355; Bank v. Charlotte, 75—45; Hcyer v. neatty,76— 28; Boyctt v. Vaughn, 79—538; Hull v. Carter, 83—249; Graybcal v. Pow- ers, 83—561; Durden v. Simmons, 84—555; Hull v. Carter, 86—522. (2) A statement of any new matter constituting a de- fence or counter-claim, in ordinary and concise language, without repetition. Gaither v. Gibson, 63—93; Harriss v. Burwell, 65—584; Walsh v. Hall, 66—233; Martin v. Richardson, 68—255; Utky v. Foy, 70—303; Sloan v. McDowell, 71— 356; Hall v. Com'rs, 74—130; Johnson v. Bell, 74—355; Francis v. Edwards, 77—271; Kitchen v. "Wilson, 80—191; Hull v. Carter, Chap. 10.] CODE OF CIVIL PEOCEDUEE. 93 83_349; Holliday v. McMillan, 83— 370; McClennahan v. Cotton, 83—332; Bank v. Byiium, 84—24; Reed v. Exum. 84 — 430; Brown v. Brittain,84— 553; Durdm V.Simmons, 84L-555; Scott v. Battle, 85—184; Odom v. Bank, 85—241; Boyett V. Vaughn, 85—363; Meneely v. Craven, 86—364; Love V. Kliyne, 86—576. Sec. 244. Counter-claim. C. C. P., s. lOl. The counter-claim mentioned in the preceding section must be one existing in favor of a defendant, and against a plaintiff, between whom a several judgment might be had in the action, and arising out of one of the following causes of action. (1) A cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action ; Hogan v. Kirkland, 64—250; McKesson v. Mendenhall, 64—286; Russell V. Adderton, 64 — 417; Pearsall v. Mayers, 64—549; Harshaw v. Woodfin, 64— 568; Jolinsonv. Mc Arthur, 64r-675; Neal v. Lea, 64—678; Mann v. Blount. 65—99; Battle v. Thompson, 65—406; Harris v. Burwen,65— 584; Street v. Bryan, 65—619; Clark v. Clark, 6.5—655; Ivey v. Cranberry, 66— 224; Walsh V.Hall, 66— 233; Terrell v. Walker, 66—244; Burton v. Wilkes, 66—604; Bank v. Tiddy, 67—169; Blount v. Windley, 68—1; Flack v. Dawson, 69—43; Woody v. Jordan, 69—189: Winslow v. Wood, 70—430; Johnson v. Keimeday, 70—435; Howie v. Rea, 70— 559; Lusk V. Fatten, 70—701; Bitting v. Thaxton, 73—541; Johnson V. Bell, 74—355; State v. Quinn, 74—359; Faison v. Johnson, 78—78 Mauney v. Ingram, 78—96; Whedbee v. Reddick, 79—531; Boyett v Vaughan, 79—528; Johnston v. Rowland, 80—1 ; Thomas v. Simpson, 80—4 Pernall v. Vaughan, 80—46; Walker v. Dicks, 80—363; Devries v. War ren, 83—356; Hull v. Carter, 83—249; McClenahan v. Cotten, 83—333 Scott V. Timberlake, 83—383; Derr v. Stubbs, 83— 539 ; Boyett v. Vaughan, 85—363; Barbce v. Green, 86— 158; Meneely v. Craven, 86—364; Reynolds V. Smathers, 87—24. (2) In an action arising on contract, any other cause of action, arising also on contract, and existing at the commencement of the action. Ransom v. McClees, 64—17; McKesson v. Mendenhall, 64— 286; Johnston V. Lea, 64— 678; Riddick v. Moore, 65—383; McLean v. Leach, 68—95; Sloan V. McDowell, 71—356; Daniel v. Crumpler, 75—184; Hull v. Carter, 83—249; McClenahan v. Cotten, 83—332; Barbee v. Green, 86—158; Rey- nolds V. Smathers, 87—24; Postou v. Rose, 87—279. Sec. 245. Several Defences. C. C. P., s. 102. The defendant may set forth by answer as many defences and counter-claims as he may have, whether they be such as have been theretofore denominated legal, equitable, or both. They must each be separately stated 94 CODE OF CIVIL PROCEDURE. [Chap. 10. and numbered, and refer to the cause of action which they are intended to answer, in such manner that they may be intelligibly distinguished. Sumner v. Sliipmaii, C5— G23; Clark v. Clark. G5— 655; Walsh v. Hall, 68—233; Hutchiuson v. Smith, G8— 351; Ten Brocck v. Orchard, 79—518; Melvin v. Stephens, 83—283. Sec. 24G. Demurrer and answer. C. C P., s. 103. The defendant may demur to one or more of several causes of action stated in the complaint, and answer to the residue. State V. Young, 65—579; VonGIahn v. DeRossett, 76—293. Sec. 247. Sbam and irrelevant defences. C. C.P., s. 104. Sham and irrelevant answere and defences may be stricken out on motion, and upon such terms as the court may in its discretion impose. Erwiu v.Lowery, 04—321 ; Swcpson v. Harvey, 66 — 436; Flack v. Dawson, 69—42; Moore v. Edmlston, 70—510; Scliehan v. Mulone, 71—440; Com'rs V. Piercy, 73—181; Dunn v. Barnes, 73—373; Bank v. Charlolte; 75—45; Cowan V. Baird, 77—301; Long v. Bank. 81 — 41; Rowland v. Windlcy, 82— 131; Hull V. Carter, 83—249; Brogdcn v. Henry, 83—374; Foy v. Haughton, 83 — 467; Boone v. Ilardic, 83 — 470; Hurst v. Addington, 84r— 143; Best v. Clyde, 86—4; Howell v. Ferguson, 87—113. CHAPTER FOUR. THE EEPLY. Section. 348. Reply; demurrer to answer. 249. Motion for judgment ou an- swer. Section. 350. Demurrer to reply. Sec. 248. Reply; demurrer to an.swer. C. C. P., s. 105. When the answer contains new matter constituting a counter-claim, the plaintiff may reply to such new mat- ter, denying generally or specifically each allegation con- troverted by him or any knowledge or infoimation there- of sufficient to form a belief; and he may allege, in or- dinary and concise language, without repetition, any new matter not inconsistent with the complaint, constituting a defence to such new matter in the answer; and the plaintiff may in all cases demur to an answer containing Chap. 10.] CODE OF CIVIL PEOCEDUEE. 95 new matter, where, upon its face, it does not constitute a counter-claim or defence; and the plaintiff may demur to one or more of such defences or counter-clanns, and reply to the residue of the counter-claims. And in other cases, when an answer contains new matter constituting a defence by way of avoidance, the court may in its dis- cretion, on the "defendant's motion, require a reply to such new matter; and in that case, the reply shall be subject to the same rules as a reply to a counter-clauu. Culver V. Eggers, 63—630; Harris v. Johnson, 05—478; Blackwell v. •Willard, 63— 555; University v. Mclver,72— 76; People v. Hilliard,72— 169; Lee V. Benman, 73—410; Tucker v. City of Raleigh, 75—267; Boyett v. Vauglian, 79—528; Jones v. Cohen, 82—75; Foy v. Haughton, 83—467; Earnhardt v. Smith, 86—473. Sec. 249. Motion for judgment on answer. C. C. P., s. 106. If the answer contain a statement of new matter con- stituting a counter-claim, and the plaintiff fail to reply or demur thereto, the defendant may move for such judgment as he is entitled to upon such statement; and if the case require it, an order for an inquiry of damages, by a jury, may be made. Earnhardt v. Smith, 86—473. Sec. 250. Demurrer to reply. C. C. P., s. 107. If a reply of the plaintiff to any defence set up by the answer of the defendarit be insufficient, the defendant may demur thereto, and shall state the grounds thereof. CHAPTEE FIVE. DUTIES AND POWEKS OF THE OLEEK IN EELATION TO THE PLEADINGS AND COLLATEKAL MATTEK. Section. 254. Duty of clerk on appeal prayed. 255. Duti of judge on appeal. 256. Judgment on matter of law may be ai^pealed from. Section. 251. Jurisdiction of clerk on plead- ings. &c. 252. Any party may appeal. 253. Appeals, when taken, and by whom. Sec. 251. Jurisdiction of clerk on pleadings, &c. C. C. P., s. 108. The clerk of the superior court shall have jurisdiction 96 CODE OF CIVIL PEOCEDUEE. [Chap. 10. to hear and decide all questions of practice and procedure in this court, and all other matters whereof jurisdiction is given to the superior court, unless the judge of said court, or the court at a regular term thereof, be expressly referred to. McAdoo V. Benbow, 63 — i61; McAdoo v. Banister, 63 — 478; Johnson v. Judd, 63—498; Tate v. Powe, 64r— 644; Marsh v. Cohen, 68—283; Com'ra V. Blackburn, 68 — 406; Brendle v. Heron, 68—496; Bryan v. Hubbs, 69— 423; Palmer V. Bosher, 71—391; McKethan v. McNeill, 74—663. Sec. 252. Any party may appeal. C. C. P., s. 109. Any party may appeal from any decision of the clerk of the superior court, on an issue of law or legal inference to the judge without undertaking. Capps V. Capps, 85 — 408. Sec. 253. Appeals, when taken, and by whom. C. C. P., s. 492. An appeal must be taken within ten days after the en- try of the order or judgment of the court; but an appeal can only be taken by a party aggrieved, who appeared and moved for or opposed the order or judgment appealed from, or who being entitled to be heard thereon, had no notice or opportunity to be heard; which fact may be shown by affidavit or other proof. Sec. 254. Duty of clerk on appeal prayed. C. C. P., s. 110, On such appeal, the clerk, within three days thereafter, shall prepare a statement of the case, of his decision, and of the appeal, and shall sign the same; he shall, within the time aforesaid, exhibit such statement to the parties or their attorneys on request; if such statement is satis- factory, the parties or their attorneys shall sign the same; if either party object to the statement as partial or erroneous, he may put his objections in writing, and the clerk shall attach such writing to his statement, and within two days thereafter he shall send such statement, together with the objections, and copies of aU necessary papers, by mail or otherwise, to the judge residing in the district, or in his absence to the judge holding the courts of the district for his decision. McAden V. Banister, 63—478; Rowland v. Thompson, 64—714; Bear v. Cohen, 65—511; Myers v. Hamilton. 65—567; Morris v. Wliitehead, 65—637; Westcott v. "Hewlett, 67—191; Lovinier v. Pearce, 70—167; Jones V. Hemphill, 77—43. Chap. 10.] CODE OF CIVIL PROCEDURE. 97 Sec. 255. Duty of judge on appeal. C. C. P., s. 113. It shaU be the duty of the judge on receivhig a state- ment of appeal froui the clerk, or the copy of the record of an issue of law, to decide the questions presented within ten davs. But if he shall have been informed in writing, by the attorney of either party, that he desires to be heard on the questions, the .Hg^ f all hx a time and place for such hearing, and give the attorneys of both parties reasonable notice thereof. He shall transmit his decision in writing, endorsed on, or attached to the Sd, to the clerk'of the court, who shall immediately Acknowledge the receipt thereof, and withm three days after such receipt, notify the attorneys of the parties, of the decision, and on request, and the Pajment of his legal fees, give them a copy thereof; and the parties receiving such notice may proceed thereafter accordmg to law. Jones V. Hemphill, 77-43; Capps v. Capps, 85-408. Sec. 356. Judgment on matter of law may be appealed from. C. C. P., s. 116. Any party within ten days after notice of such judg- ment, may appeal to the supreme court of the state from such udgmekt, upon any matter of law or legal inter- ence therein, under the regulations provided tor ap- peals in other cases. But execution shall not be suspended until the undertakings required by this code shall have been ^^iven. If issues, both of law and of fact, or issues of fac^t only, are raised before the clerk of the superior court, he shall transfer the case to the civil issue docket for trial of the issues at the ensuing term of the superior court. Jones V. Hemphill, 77—43. CODE OF CIVIL PROCEDURE. [Chap. 10. CHAPTER SIX. GENEEAL EULES OF PLEADING Suction. 257. Pleadings to be subscribed and verified. 258. Pleadings, how verified. 259. Items of account ; particulars to be furnished, when. 260. Pleadings, how construed. 201. Irrelevant or redundant; inde- finite or uncertain. 262. Judgments, how to be pleaded. 203. Conditions precedent, how to Section. be pleaded; instrument for payment of money only, 264. Private statutes, how pleadpe proceeded against by motion. C. C. P., s. 160. In case of failure to comply with the undertaking, the bail may be proceeded against by motion in the cause on ten days' notice to such bail. CharletOD V. Sloan, 64—703; McDowell v. Ashbury, 66 — 444; Insurance Co. V. Davis, 74—78. Sec. 303. Bail, how exonerated. C. C. P., s. 161. The bail may be exonerated, either by the death of the defendant, or his imprisonment in a state prison, or by Chap. 10.] CODE OF CIVIL PEOCEDUEE. 115 his legal discharge from the obligation to render himself amenable to the process, or by his surrender to the sheriff of the county where he was arrested, in execution thereof, at any time before final judgment against the bail. Adrinn v. Scanlin, 77—317; Sedberry v. Carvei-, 77—319. Sec. 304. Undertaking of bail to be delivered to clerk and notice thereof to plaintiff, and its acceptance or rejec- tion by him. C. C. P., s. 163. Within the time limited for that purpose, the sheriff shall deliver the order of arrest to the clerk of the court in which the suit is brought, with his return indorsed, and a certified copy of the undertaking of the bail, and notify the plaintiff or his attorney thereof. The plaintiff, within ten days thereafter, may serve upon the sheriff a notice that he does not accept the bail, or he shall be deemed to have accepted it, and the sheriff shall be ex- onerated from the liability. Sec. 305. Notice of justification; new bail. C. C. P., s. 163. On the receipt of such notice, the sheriff or defendant may, within ten days thereafter, give to the plaintiff, or his attorney, notice of the justification of the same or other bail (specifying the places of residence and occu- pation of the latter) before the court, justice of the peace, or judge, at a specified time and place; the time to be not less than five nor more than ten days thei-e- after. In case other bail be given, there shall be a new undertaking, in the form prescribed in section two hun- dz'ed and ninety-nine. Sec. 306. Qualifications of bail. C. C. P., s. 164. The quahfications of bail must be as follows: (1) Each of them must be a resident and freeholder within the state; (2) They must each be worth the amount specified in the order of arrest, exclusive of property exempt fi'om execution; but the judge, on justification, may allow more than two bail to justify severally in amounts less than that expressed in the order, if the whole justifica- tion be equivalent to that of two sufficient bail. Sec. 307. Justification of ball. C. C. P., s. 165. For the purpose of justification, each of the bail shall attend before the court or judge, or a justice of the 116 CODE OF CIVIL PROCEDURE. [Chap. 10. peace, at the time and place mentioned in the notice, and may be examined on oath, on the part of the plaintiff, touching his sufficiency, in such a manner as the court, the justice of the peace, or the judge, in his discretion, may think proper. The examination shall be reduced to writing, and subscribed by the bail, if required by the plaintiff. Sec. 308. If bail adjudged sufflcieut, examination to be certifled, and sherift" exonerated. C. C. P., s. 160. If the court, justice of the peace or judge find the bail sufficient, he shall annex the examination to the under- taking, indorse his allowance thereon, and cause them to be filed with the clerk; and the sheriff shall there- upon be exonerated from liability. Sec. 309. Defendant may make deposit instead of bail with sheriff. C. C. P., s. 167. The defendant may, at the time of his arrest, instead of giving bail, deposit with the sheriff the amount men- tioned in the order. The sheriff shall thereupon give the defendant a certificate of the deposit, and the defendant shall hd discharged from custody. Sec. 310. Sheriff within four days to pay deposit into court. C. C. P., s. 168. The sheriff shall, within four days after the deposit, pay the same into court, and shall take from the officer receiving the same two certificates of such payment, the one of which he shall deliver to the plaintiff, and the other to the defendant. For any default in making such payment, the same proceedings may be had on the official bond of the sheriff, to collect the sum deposited, as in other cases of delinquencies. Sec. 311. Bail substituted for deposit and deposit re- funded. C. C. P., s. 169. If money be deposited, as provided in the two preced- mg sections, bail may be given and justified upon notice, as prescribed in section three hundred and seven, any time before judgment; and thereupon the judge, court or justice of the peace shall direct, in the order of allow- ance, that the money deposited be refunded by the sheriff or other officer to the defendant, and it shall be refunded accordingly. Chap. 10.] CODE OF CIVIL PROCEDUEE. 117 Sec. 312. Plaintiff obtaining judgment, deposit applied to its payment. C. C. P., s. 170. When money shall have been so deposited, if it remain on deposit at the time of an order or judgment for the payment of money to the plaintiff, the clerk or other of- ficer shall, under the direction of the court, apply the same in satisfaction thereof, and after satisfying the judgment, shall refund the surplus, if any, to the defend- ant. If the judgment be in favor of the defendant, the clerk or other officer shall refund to him the whole sum deposited and remaining unapplied. Sec. 313. Sheriffllable as bail, when. C. C. P., s. 171. If, after being arrested, the defendant escape, or bs rescued, or bail be not given or justified, or a deposit bs not made instead thereof, the sheriff shall himself be liable as bail. But he may discharge himself from such liability, by the giving and justification of bail at any time before process against the person of the defendant, to enforce an order or judgment in the action. Sec. 314. Judgment against sheriff; action on his official bond. C. C.P., s. 172. If a judgment be recovered against the sheriff, upon his liability as bail, and an execution thereon be returned unsatisfied, in whole or in part, the same proceedings may be had on the official bond of the sheriff, to collect the deficiency, as in other cases of delinquency. Sec. 315. Bail liable to Sheriff. C. C. P., s. 173. The bail taken upon the arrest shall, unless they justify, or other bail be given or justified, be liable to the sheriff by action, for damages whicli he may sustain by reason of such omission. Sec. 316. Defendant before judgment niayapply on mo- tion to vacate. C. C P., s. 174. A defendant arrested may at any time before judgment apply, on motion, to vacate the order of arrest, or to re- duce the amount of bail. Clark V. Clark, 64 — 150; Bear v. Cohen, 65 — 511; Rowark v. Homes- ley, 68—91; Raulhac v. Brown, 87—1. Sec. 317. Motion to vacate made on affidavit; plaintiff may oppose the same by affidavits or other proof. C. C. P., s. 175. If the motion be made upon affidavits on the part of 118 CODE OF CIVIL PROCEDURE. [Chap. 10. the defendant, but not otherwise, the plaintiff may op- pose the same by affidavits, or other proof, in addition to those on which the order of ai'rest was made. Wilson V. Bainhill, 64—121; Clark v. Clark, 64^150; Wciller v. Law- rence, 81 — 65; Devries V. Summit, 86 — 126. Sec. 318. Defendant confined for want of bail, may give bail, and bond returned to next court. R. C, c. 1 1 , s. 8. C. C. P., s. 175 (a). If any person for want of bail shall be lawfully com- mitted to jail, at any time before final judgment, the sheriff, or other officer having him in custody, may take bail and discharge him ; and tlie bail-bond shall be re- garded, in every respect, as other bail-bonds, and shall be returned and sued on in like manner; and the officer taking it shall make special return thereof, with the bond at the first court which is held after it is taken. Sec. 319. Bail to pay costs in certain cases. R. C, e. 11, .s. lO. C. C. p., s. 175 i«). Whenever a notice shall issue against any person, as the bail of any otlier person, and .the bail, at or before the term of the court at which such bail is bound to ap- pear, or ought to plead, shall not be discharged from his liability as bail by the death or surrender of his principal or otherwise; in" that case the bail shall be liable for all costs which may accrue on said notice, notwithstanding the bail may be afterwards discharged, by the death or surrender o'f the principal, or otherwise. Clark V. Latham, 8 Jou., 1. Sec. .320. Bail not discharged by amendment of process. R. €., c. ll,s. 11. C. C. P., s. 175 K). No amendment of process shall discharge tlie bail of the party arrested thereon, unless tlie amendment be to enlarge the sum demanded beyond the sum expressed in the bail-bond. Chap. 10.] CODE OF CIVIL PROCEDUEE. 119 CHAPTER TWO. CLAIM AND DELIVEEY OF PEKSONAL PEOPEETY. Section. 321. Delivery to be claimed at the time of issuing the summons. 323. Affidavit and requisites. 823. Fiat of clerk to sheriff to deliver property. 324. Undertaking of plaintiff for de- livery of property. 325. Exceptions to undertaking. 326. Undertaking of defendant to re- tain property. 337. Justification of defendant's sure- ties. Patapsco Co. v. Magee, 86—350. Section. 328. Qualification and justification of defendant's sureties, how. 329. Property concealed in buildings, how taken. 380. Property when taken, how kept. 331. Property taken, claimed by a third person. 383. Sheriff not bound to keep the property, but may deliver to claimant. 333. Undertaking and affidavit, when and wl)ere to be filed. Sec. 321. Delivery to be claimed at the time of issuing- the sumnious. C. C. P., s. 176. The plaintiff, in an action to recover the posses^sion of personal property, may, at the time of issuing the sum- mons, or at any time before answer, claim the immedi- ate delivery of such property, as provided in this sub- chapter. Hirsh V. Whitehead, 65—516; Jarman v. Ward, 67—82; Aslibrook v. Shields, 67—333; Woody v. .Jordan, 69— 189; Haugliton v. Newberry, 69- 456; Holmes v. Godwin, 69 — 467; Clemmons v. Hnmpton, 70 — 534; Potter V. Mardre, 74—36; Hopper v. Miller, 76—402; Ray v. Hortou, 77-334; Jones V. Ward, 77—337; Churchill v. Lee, 77—341; Mauny v. Ingram, 78— 96; Manix v. Howard, 79—553; Webb v. Taylor, 80—305; Williamson v. Buck, 80—308; McCraw v. Gilmer. 83—163; Moore v. Woodward, 83— 531; Miller v. Hahu, 84^226; Patapsco v. Magee, 8C— 350. Sec. 322, Affidavit aud requisites. C. C. P., s. 177. 1881, e. 134. Where a delivery is claimed, an affidavit must be made, before the clerk of the court in which the action is required to be tried, or before some person competent to administer oaths, by the plaintiff, or some one in his behalf, showing: Hirsh V. Whitehead, 65—516; .Jarman v. Ward, 67—32; Wehbv. Taylor, 80—305 ; Manix v. Howard, 83—125 ; Gotten v. Willoughby. 83—75 ; Rhea V. Deaver, 85—337. 120 CODE OF CIVIL PROCEDUEE. [Chap. 10. (1) That the plaintiff is the owner of the property claimed (particularly describing it), or is lawfully entitled to the possession thereof by virtue of a special property therein, the facts in respect to which shall be set forth; Blakely v. Patrick, 67—40; Potter v. Maidre, 74—36; Hopper v. Miller, 76-402; Cotton v. Willoughby, 83—75. (2) That the property is wrongfully detained by the de- fendant; (3) The alleged cause of the detention thereof, accord- ing to his best knowledge, information and belief; (4) That the same has not been taken for tax, assess- ment, or tine, pursuant to a statute; or seized under an execution or attachment against the property of the plaintiff; or, if so seized, that it is, by statute, exempt from such seizure; and, Hirsh V. Whitehead, 65—516; Baxter v. Baxter, 77—118; Jones v. Ward, 77—337; Churchill v. Lee, 77—341. (5) The actual value of the property. Hirsh V. Whitehead, 65—516; Jaimauv. Ward, 67—33. Sec. 323. Fiat of clerk to sheriff, to deliver property. C. C. P.,s. 178. The clerk of the court shall, thereupon, by an indorse- ment in writing upon the affidavit, require the sheriff of the county where the property claimed may be, to take the same from the defendant and deliver it to the plain- tiff: Provided, the plaintiff shaU give the undertaking prescribed in the succeeding section. Hirsh V. Whitehead, 65—516; Jarman v. Ward, 67—32; Ins. Co. v. Davis, 68—17; Woody v. Jordan, 69—189; Potter v. Mardre, 74—36 Phillips V. Holland, 78—31. Sec. 324. Undertakingr of plaintiff for delivery of prop- erty. C. C. P., s. 17». Upon the receipt of the order from the clerk with a written undertaking payable to the defendant executed by one or more sufficient sureties, approved by the sher- iff, to the eft^ect that they are bound in double the value of the property, as stated in the affidavit for the prose- cution of the action, for the return of the property to the defendant, if return thereof be adjudged, and for the payment to him of such sum as may, for any cause, be recovered against the plaintiff, the sheriff shall forthwith take the property described in the affidavit, if it be in the possession of the defendant or his agent, and retain it in his custody. He shall also, without delay, serve on the defendant a copy of the affidavit, notice, and undertak- Chap. 10.] CODE OF CIVIL PEOCEDUEE. 121 tag, by delivering the same to him personally, if he can be found, or to his agent, from whose possession the property is taken; or, if neither can be found, by leaving them at the usual plai'C of abode of either, with some person of suitable age and discretion. Hirsh V. Whitehead, 65— 51C; Jiirmian v. Ward, 67—33; Woody v. Jordan, 69—189; Hopper v. Miller, 76—403; Mannix v. Howard, 83—135. Sec. 325. Exceptions to undertaking-. C. C. P., s. 180. The defendant may, within three days after the service of a copy of the affidavit and undertaking, give notice to the sheriff personally, or by leaving a copy at his office in the county town of the county, or if he have no such office, at the office of the clerk of the court, that he ex- cepts to the sufficiency of the sureties. If he fail to do so, he shall be deemed to have waived all objection to them. When the defendant excepts, the sureties shall justify on notice, in like mamier as upon bail on arrest. And the sheriff shall be responsible for the sufficiency of the sureties, until the objection to them is either waived as above provided, or until they shall justify, or until new sureties shall be substituted and justify. If the de- fendant except to the sureties, he cannot reclaim the property as provided in the succeeding section. Hirsh V. Whitehead, 65—516. Sec. 326. Undertaking of defendant to retain property. C. C. P., s. 181. At any time before the delivery of the property to the plaintiff, the defendant may, if he do not except to the sureties of the plaintiff, require the return thereof, upon giving to the sheriff a written undertaking, payable to the plaintiff, executed by one or more sufficient sureties, the effect that they are bound in double the value of the property, as stated in the affidavit of the plaintiff, for the delivery thereof to the plaintiff, if such delivery be ad- judged, and for the payment to him of such sum as may, for any cause, be recovered against the defendant. If a return of the property be not so required, wnthin three days after the taking and service of notice to the defend- ant, it shall be delivered to the plaintiff, except as pro- vided in section three hundred and thirty-one. Hirsh V. Whitehead, 65—516; Ins. Co. v. Davis, 74r— 78; Miller v. Hahn, 84—236; Hughes v. Newsom, 86—124. 6 122 CODE OF CIVIL PEOCEDURE. [Chap. 10. Sec. 327. Justification of defendant's sureties. C. C. P., s. 182. The defendant's sureties, upon a notice to the plaintiff of not less than two or more than six days, shall justify before the court, a judge or justice of the peace, in the same manner as upon bail on arrest; upon such justifica tion, the sheriff shall deliver the property to the defend- ant. The sheriff shall be responsible for the defendant's sureties, until tliey justify, or until justification is com- pleted or expressly waived, and may retain the property until that time; but if they, or others in their place, fail to justify at the time and place appointed, he shaU de- liver the property to the plaintiff. Hirsh V. Whitehead, 65—516. Sec. 328. Qualification and justification of defendant's sureties, how. C. C. P., s. 183. The qualifications of sureties, and their justification, shaU be as prescribed, in respect to bail upon an order of arrest. Hirsh V. Whitehead, 65—516. Sec. 329. Property concealed in buildings, how taken. C. C. P., s. 184. If the property, or any part thereof, be concealed in a building or enclosure, the sheriff shall publicly demand its delivery. If it be not delivered, he shall cause the building or enclosure to be broken open, and take the property into his possession; and, if necessary, he may call to his aid the power of his county, and if the property be upon the person the sheriff or other officer may seize the person, and search for and take the same. Hirsh V. Whitehead, 65—516. Sec. 330. Property when taken, how kept. O. C. P., s. 185. When the sheriff shall have taken property, as in this chapter provided, he shall keep it in a secure place, and deliver it to the party entitled thereto, upon receiving his lawful fees for taking, and his necessary expenses for keeping the same. Hirsh V. Whitehead, 65—516. Sec. 331. Property taken, claimed by a third person. K. C, c. 7, s. 10. 1810, c. 583, ss. 1, 2. C. C. P., s. ISO. When the property taken by the sheriff shall be claimed by any person other than the plaintiff or the defendant, Chap. 10.] CODE OF CIVIL PEOCEDUEE. 123 the claimant may interplead upon his filing an affidavit of his title and right to the possession of the property, stating the grounds of such right and title; and upon his delivering to the sheriff an undertaking in an amount double the value of the property specified in plaintiff's complaint, for the delivery of the property to the person entitled to the same, and for the payment of all such costs and damages as may be awarded against him; this under- taking to be executed by one or more sufficient sureties, accompanied by their affidavits that they are each worth double the value of property. A copy of this undertak- ing and accompanying affidavits to be served by the sheriff on the plaintiff and defendant at least ten days before the return day of the summons in said action, when the coui-t trying the same shall order a jury to be impaneled to inquire in whom is the right to the property specified in plaintiff's complaint; and the finding of the jury shall be conclusive as to the parties then in court, and the court shall adjudge accordingly, unless it is reversed upon appeal. Provided, that in a court of a justice of the peace, he may try such issue unless a jury be demanded, and then proceedings are to be conducted in all respects as in ju]-y trials before courts of justices of the peace. Simpson v. Harry. 1 D. & B., 202; McLean v. Douglass, 6 Ired., 233; Evans v. Transportation Co., 5 Jon., 331; Cberry v. Nelson. 7 .Ion.. 141; Banli V. Spurling, 7 Jon., 398; Bear v. Cohen. 65—511; Hirsh v. Whitehead. 65—516; Cleinmons v. Hampton, 70—534; Sims v. Goettle, 83—268; Sims V. Goettle, 82—271. Sec. 332. Sheriff not bound to keep the property, but may deliver to claimant. R. C, c. 7, s. 10. 1810, c. 583, ss. 1,2. C. C. P., s. 186. {a.) Upon the filing by the claimant of the undertaking set forth in the preceding section, the sheriff shall not be bound to keep the property, or to deliver it to the plaintiff; but may deliver it to the claimant, unless the plaintiff shall execute and deliver to him a similar undertaking to that required of claimant; and notwithstanding such claim, when so made, the sheriff may retain the property a reasonable time to demand such indemnity. Sec. 333. Undertaking and affidavit, when and where to be filed. C. C. P., s. 187. The sheriff shall return the undertaking, notice and affidavit with his proceedings thereon to the court in 124 CODE OP CIVIL PROCEDURE. [Chap. 10. which the action is pending within ten days after taking the property mentioned therein. Hirsh V. Wiiitehead, 65 — 516; Insurance Co. v. Davis, 74 — T8: Harker v. Arendell, 74r-85. CHAPTER THREE. INJUNCTION. Section. 334. Injunction as a provisional rem- edy abolislicd, and injunction by order siibslilutcd. 335. What judge to grant injunc- tions and restraining orders. 336. Before what judge returnable. 337. Parties to application for in- junction may by written stip- ulation designate a judge to hear the same: Proviso. 338. Injimction, in what cases al- lowed. 339. At what time granted; copy of affidavit to be served. 840. Injunction after answer, al- lowed upon notice. Section. 341. Undertaking upon injunction; damages, how ascertained. 342. Order to show cause; restraint in the meantime. 343. Injunction to suspend business of corporation not gi'anted, uuless vmdeitaking is given. 344. Injunction without notice, va- cated or ntodificd upon notice. 345. Application to modify or vacate upon affidavit, may be op- po.=ed by affidavit. 346. Restraining order shall not be granted for more than twenty days without notice; but con- tinue uutU dissolved on notice. I Sec. 334. Injunction a.s a provisional rcniedj' abolished, and injunction by order substituted. C. C. P., s. 188. The writ of injunction as a provisional remedy is abol- ished, and a temporary injunction by order is substituted therefor. The order may be made by any judge of a su- perior court, in the cases provided in section three hun- dred and thirty -eight, and may be enforced as tlie order of the court. Upon such order, it shall be issued by the clerk of the court in which the action is required to be tried. Foard v. Alc^cander, 04 — 69; Chambers v. Penland, 78 — 53; Jones v. Cameron, 81 — 154. Sec. 3.35. "What judge to grant in,junctions and restrain- ing orders. 1870-'7, c. 232, s. 1. 187J), c. 63, s.s. 1, 3. The judges of the superior court of this state shall have jurisdiction to grant injunctions and issue restraining or- Chap. 10.] CODE OF CIVIL PROCEDURE. 125 ders in all civil actions and proceedings, which are author- ized by law: Provided, that a judge holding a special term in any county may grant an injunction, or issue a restraining order, returnable before himself, in any case which he may have jurisdiction to hear, and determine under the commission issued to him, and the same shall be returnable as directed by the judge in the order. Brown v. R. K. Co., 83—138; Gal breath v. Everett, 84—546. Sec. 336. Before what judge returnable. 1876-'7, c. 232, s. 2. 1879. c. 635, ss. 2, 3. 1881, c. 51, s. 1. All restraining orders and injunctions granted by any of the judges of the superior court, except a judge hold- ing a special term in any county, shall be made returna- able before the resident judge of the district, or the judge assigned to the district, or holding by exchange the courts of the district whei-e the civil action or special proceeding is depending, within twenty days from date of order. And if the judge before whom the same is re- turned shall, from sickness, inability, or from any cause, fail to hear said motion and application, or to continue the same to some other time and place, then it shall be competent for any judge resident in some adjoining dis- trict, or a judge assigned to hold the court of some ad- joining district, or the judge holding by exchange the court of some adjoining district, to hear and determine the said motion and application, after giving ten days' notice to the parties interested in the application or mo- tion, upon its being satisfactorily shown to him by affi- davit or otherwise, that the judge before whom the same was returnable failed to act upon the same, or to con- tinue the same to some other time and place. The effect of such i-emoval shall be to continue in force the motion and application theretofore granted, till the same can be heard and determined by the judge having jurisdiction of the same. Corbin V. Berry, 83-37; Galbreath v. Everett, 84r— 546. Sec. 337. Parties to application for injunction may by written stipulation designate a judge to bear the same. 1883, c. 33. By a stipulation in writing, signed by all the parties to an application for an injunction order, or their attorney, to the effect that the matter may be heard before any judge, to be designated in such stipulation, the judge before whom the restraining order is returnable by law, or who is by law the judge to hear the motion for an in- 126 CODE OF CIVIL PROCEDUEE. [Chap. 10. junction order, shall, upon receipt of such stipulations, forward the same and all the papers to the judge desig- nated in the stipulation, whose duty it shall thereupon be to hear and decide the matter, and return all the papers to the court out of which they issued: Provided, that the necessary postage or expressage money be fur- nished to said judge. Sec. 338. Injunction, in what cases allowed. C. C. P., 6. 189. (1) DEPENDS UPON NATURE OF THE ACTION. (1) When it shall appear by the complaint that the plaintiff is entitled to the relief demanded, and such re- lief or any part thereof, consists in restraining the com- mission, or continuance of some act, the commission or continuance of which, during the litigation, would pro- duce injury to the plaintiff ; or Fox V. Cline, 85—173. (2) AND (3) DEPEND UPON EXTRINSIC FACTS. (2) When, during the litigation, it shall appear by af- fidavit of plaintiff or any other person, that the defend- ant is doing, or threatens, or is about to do, or procuring or suffering some act to be done in violation of the plain- tiff's rights respecting the subject of the action, and tending to I'ender the judgment ineffectual, a temporary injunction may be granted to restrain him therefrom; Heiligv. Stokes, 63—612; Wilder v. Lee, 64—50; Foard v. Alexander. 64—69; Jones v. Hill, 64—198; Smith v. Dewey, 64—463; Patterson v. Hubbs, 65—119; Howes v. Mauney, 66—218; Sprinkle v. Hutcbinson, 66— 450; R. R. Co. v. Battle, 66—540; Dockery v. French, 69—308; liryan v. Hubbs, 69—423; Johnston v. Rankin, 70— 550; Faison v. Mcllwaine, 72— 312; Chambers V. Penland, 78— 53; Dobson v. Simonton, 78—63; .Jones v. Thorne, 80—72; Banks v. Parker, 80—157; Tillery v. Wren, 86—217; Walton V. Mills, 86—280. (3) And where, during the pendency of an action, it shall appear by affidavit of plaintiff or any other person, that the defendant threatens, or is about to remove or dispose of his property, with intent to defraud the plain- tiff, a temporory injunction may be granted to restrain such removal or disposition. Bell V. Chadwick, 71—329; German v. Clarke, 71—417; Baldwin v. York, 71—463; Amalgamating Co. v. Dressing Co., 73 — 468; Campbell v. Wolfenden, 74 — 103; Jolinson v. Jones, 75 — 200; McCorkle v. Brem, 76 — 407; Cohen v. Com'rs, 77—2; Baxter v. Baxter, 77—118; Moore v. Valentine, 77—188; Capchart v. Biggs, 77—261; Purnel! v. Vaughan, 77— 208. Chap. 10.] CODE OF CIVIL PKOCEDURE. 1-2Y Sec. 339. At what time granted; copy of affidavit to be served. C. C. P., s. 190. The injunction may be granted at the time of com- mencing the action, or at any time afterwards, before iudgment; upon its appearing satisfactorily to the judge, by the affidavit of the plaintiff, or of any other person, that sufficient grounds exist therefor. A copy of the affidavit must be served with the injunction. Patrick V. Joyner, 63—573; Heilig v. Stokes, 63—612; Foard v. Alexan- der, 64^69; McArthur v. McEachin, 64^72; Backalan v. Littlefield, 64r- 233; Hivsh v. "Whitehead, 65—516; Martin v.Sloane, 69—128. Sec. 340. Injunction after answer, allowed upon notice. C. C. P.,s. 191. An injunction shall not be allowed after the defendant shall have answered, unless upon notice, or upon an or- der to show cause; but in such case the defendant may be restrained until the decision of the judge granting or refusing the injunction. Heilig V. Stokes, 63—612; Foard v. Alexander, 64—69; Jarman v. Saun- ders, 64—367; Faison v. Mcllwaine, 72—312. Sec. 341. Undertaking upon injxinction; damages, how ascertained. C. C. P., s. 193. Upon granting a restraining order or an order for an injunction, the judge shall require as a condition prece- dent to the issuing thereof, that the clerk shall take from the plaintiff a written undertaking, with sufficient sure- ties to be justified before, and approved by, the said clerk, or by the judge, in an amount to be fixed by the judge, to the effect that the plaintiff will pay to the party en- joined such damages, not exceeding an amount to be specified, as he may sustain by reason of the injunction, if the court shall finally decide that the plaintiff was not entitled thereto. The damages may be ascertained by a reference or otherwise, as the judge shall direct, and the decision of the court thereupon shall be conclusive as to the amount of damages upon all the persons who have an interest in the undertaking. Sledge V. Blum, 63—374; McArthur v. McEaehiu, 64—72; Richards v. Baurraan, 65—162; Hirsh v. Whitehead, 65—516; Burke v. Stokcly, 65 — 569; Hyiiian v. Devcreux, 65—588; McKesson v. Heiiuessce, 66—473; Jlillei V. Parker, 73—58; Amalgnmating Co. v. Ore Dressing Co., 79—48; Burnett V. Nicholson, 79—548; Sternberger v. Hawley, 85—141. 128 CODE OF CIVIL PROCEDUEE. [Chap. 10. Sec. 342. Order to show cause; restraint in the mean- time. C. C. P., s. 193. If the judge deem it proper that the defendant, or any of several defendants, should he heard before granting the injunction, an order may be made requiring cause to be shown, at a specified time and place, whv the injunc- tion should not be granted; and the defendant may, in the meantime, be restrained. Faison v. Mcllwaiae, 73—313; Sternberger v. Hawley, 83—141. Sec. 343. Injunction to suspend business of corporation not granted, unless undertaking is given. C. C. P s 194. An injunction to suspend the general and ordinary business of a corporation shaU not be granted without due notice of the application therefor, to the proper offi- cers of the corporation, except where the state is a party to the proceeding, unless the plaintiff shall give a written undertaking, executed by two sufficient sureties, to be approved by the judge, to the effect that the plaintiff will pay all damages, not exceeding the sum to be mentioned in the undertaking, which such corporation may sustain by reason of the injunction, if the court shall finally de- cide that the plaintiff was not entitled thereto. The damages may be ascertained by a reference, or otherwise, as the court shall direct. Sec. 344. Injunction without notice, vacated or modi- fied upon notice. C. C. P., s. 195. If the injunction be granted without notice, the defen- dant, at any time before the trial, may apply, upon ten days' notice to the judge having jurisdiction thereof, to vacate or modify the same. The application may be made upon the complaint and the affidavits on which the injunction was granted, or upon the affidavits on the part of the defendant, with or without answer; but if no such application be made, the injunction shall contiiuie, and be in force until such application shall be made and determined by the judge, and a verified answer has the effect only of an affidavit. Sharpe v. King, 3 Ired. Eq.. 402; Perkins v. Hollowell, 5 Ired. Eq., 34.; Sledge V. Blum, 63-374; Bear v. Cohen, G5— 511.; Perry v. Micliaux' 79—94. Sec. 345. Application to modify or vacate upon affida- vit, may be opposed by affidavit. C. C. P., s. 1 90. If the application be made upon affidavits on the part Chap. 10.] CODE OF CIVIL PROCEDURE. 129 of the defendant, but not otherwise, the plaintiff may oppose the same by affidavits or other proof in addition to those on which the injunction was granted. Clark V Clark, 64-150; Howerton v. Sprague, 64-451: Craycroll v. Morebead, 67-422; Woodfin v. Beach, 70-455; Lowe v. Com'.s. 70-533; Pouton V. McAdoo, 71-101 ; Mitchell v. Com'rs, 74-487; Chambers v Pen- land, 78-53; Jones v. Boyd, 80-258; Welller v. Lawrence, 81-G5; Young V. Rollins, 85 — 485. Sec 346. Kestraining order shall not he granted for more than twenty days without notice; but continue until dissolved on notice. C. C. P., s. 345. No restraining order, or order to stay proceedings tor a longer time than 20 days, shall be granted by a ]udge out of court, except upon due notice to the adverse party; but the said order shaU continue and remain in force until vacated upon notice. CHAPTER FOUR. ATTACHMENT. Section. 847. In what actions attachment may be issued. 348. Warrant to accompany sum- mons, or to be issued after- wards. 349. What must be shown to pro- cure warrant. 850. Warrant issued by justice of the peace; publication to be made. 851. Warrant, by whom granted. 353. Warrant, bow served. 353. When warrant granted by a justice of the peace. 354. Justice's attaclmients levied on land, what to be done. 355. Warrant procured; affidavits to be filed. 356. Undertaking before issuing war- rant. Section. 357. Warrant, to whom directed and what to require. 358. Validity of undertaking. 359. Warrant, bow executed. 360. Proceedings when property at- tached is perishable, or a ves- sel. 361. Defendant may replevy before sale. 363. Interest in corporations or as- sociations liable to attach- ments. Attachment, how executed on property incapable of manual delivery. A garnishee summoned to answer on oath; jiidgmeut against garnishee. 365. Proceeilings against garnishee failing to appear. 363. 364. 130 CODE OF CIVIL PROCEDURE. [Chap. 10. Section. 366. Garnishee denying he has any property; issue to he made up. 367. Articles confessed hy garnishee, to be vulued by jury and judg- ment for Iheir value; in what cases garnishee e.xcused. 368. Judgment couditional against garnishee, when. 369. Certificate of defendant's inter- est to be furnished. 370. Judgment, how satisfied. 371. When action to recover notes, &c., of defendant may be prosecuted by plaintill in the action in which the attach- ment issued. 372. Bond of plaintiff, how disposed of, or judgment for defendant. Section. ;173. Attachment discharged, and property or its proceeds re- turned to defendant on his appearance in action. 374. Undeiialdng of defendant on appearance to discharge the property. 375. Property claimed by third party, may interplead. 376. Wlieu the sheriff to return war- rant, with his proceedings thereou. 377. Motion to vacate or modify a warrant, or increase security. 378. Exception to and justification of sureties. Sec. 347. In what actions attacliment may l>e issued. C. C. P., s. 197. A wariant of attachment against the pioperty of one or more defendants in an action, may be granted upon the apphcation of the plaintiff, as specified in this chapter, when the aciion is to recover a sum of money only, or damages for one or more of the following causes: (1) Breach of contract, express or implied; (2) Wrongful conversion of personal property; (3) Any other injury to personal property, in conse- quence of negligence, fraud, or other wrongful act. Ma-twell V. McBrayer, Phil., 527; Marsh v. Williams, 63—371; Hughes V. Person, 63—548; Wilson v. Barnhill, 64—121; Backalan v. Liltlefield. 64 — 233; Mixer v. Guano Co., 65—552; Toms v. Warson, 60—417; Wheeler V. Cobb, 73—21; Montgomery v. Riley, 75-144; Windley v. Bradway, 77— 333; Grant v. Burgwyn, 79— 513; Price v. Cox, 83—261; Faulk v. Smith, 84—501. Sec. 348. Warrant to accompany summons, or to be issued afterward. C. C. P., s. 197. The warrant of attachment may be granted to accom- pany the summons, or at any time after the commence- ment of tlie action. Personal service of the summons must be made upon the defendant against whose prop- erty tlie attachment is granted, within thirty days after the granting tliereof, or else upon the expiration of the same time, service of summons by publication must be commenced pursuant to an order obtained therefor, and Chap. 10.] CODE OF CIVIL PROCEDURE. if publication has been, or is thereafter commenced, t service must be made complete, by the contmuance thereof. Price V. Cox, 83—261. Sec. 34:9. What must be shown to procure the warrant. C. C. P., s. 201. To entitle the plaintiff to such a warrant, he must show by affidavit to the satisfaction of the court grantmg the same, as follows: -^ i • „+,-„„ (1) That one of the causes of action specified m section three hundred and forty-seven exists against the defend- ant If the action is to recover damages for breach ot contract, the defendant must show that the plamtitt is entitled to recover a sum stated therein, over and above all counter-claims known to him. _ (2) That the defendant is either a foreign corporation, or not a resident of the state; or, if he is a natural per- son and n resident of the state, that he has departed therefrom, with intent to defraud his creditors, or to avoid service of summons, or keeps himself concealed therein with like intent; or, if the defendant is a nat- ural person, or a domestic corporation, that he or it has removed, or is about to remove, property from the state, with intent to defraud his or its creditors; or has assigned, disposed of, or secreted, or is about to assign, dispose ot, or secrete, property with the like intent. Marsh V Williams, 63-371; Hughes v. Person, 63-548; Gashine v. Bacr 64-108; Wilson v. BarnhiU. 64-121; Clark v. Clark, 64-150; Back- alan'v Littlefiekl, 64-233; Brown v. Hawkins, 65-645; Love v. Young, 69-65- Spiers v. Halstead, 71-209; Palmer v. Bosher, 71-201; Wood v. Harrcl' 74-338; Smith v. Gibson, 74-684; Wheeler v. Cobb, 75-31; Bur- well v' Lafferty, 76-383; Hess v. Brower, 76-428; Windley v. Bradway, 77-333; Branch v. Frank, 81-180; BrufE v. Slern, 81-183; Peebles v. Foote, 83-102; Faulk v. Smith, 84-501; Devries v. Summit, 86—126. Sec 350. Warrant issued by justice of the peace ; publi- cation to be made. C. C. P., s. 198. 1S68-'9,C. 95, s. 3. 1870-'l, c. 166, s. 4. 1874-'5, c. 111. The plaintiff, within thirty days after obtaining a war- rant of attachment from a justice of the peace, shall cause publication thereof to be made for four successive weeks at the court-house door and four other pubhc places in the county where the warrant is returnable. Marsh V. Williams, 63-371; Love v. Young, 69-65; Spiers v. Halstead. n— 209i Wheeler V. Cobb, 75-21; Burwell v. Lafferty, 76—383. 132 CODE OF CIVIL PEOCEDUEE. [Chap. 10. Sec. 351. Warrant, by whom granted. C. C. P. s. 199. 1869-'70, c. 147. 1870-'l, c. 166, ss. 1, 3. 1874- '5, c. Ill, 1876-'7, c. 251, s. 1. If the action be not founded on a contract, or if found- ed on a contract and the sum demanded exceed two hun- dred dollars, a warrant of attachment may he obtained from the judge of the district embracing the county in which the action has been instituted, or from the clerk of the superior court from which the summons in the action issued ; and it may be issued to any county in the state where the defendant has property, money, effects, choses in action or debts due him, aud shall be made returnable in term time to the court from which the summons issued. Sec. 352. Warrant, liow served. 1870-'l, c. 166, s. 3, 1874-'5, c. Ill, s. 2. _ When the warrant of attachment is taken out at the time of issuing the summons, and the summons is to be served by publication, the order shall direct that notice be given in said publication to the defendant of the issu- ing of the attachment, aud when the warrant of attach- ment is obtained after the issuing of the summons, the defendant shall be notified by publication of the fact for four successive weeks in some newspaper published in the county to which it is returnable, or if there be none such, then in one published in the judicial district includ- ing said county, and if there be no newspaper published in the district, then in any newspaper pubhshed in the state. Said publication shall state the names of the parties, the amount of the claims, and in a brief way the nature of the demand and the time and place to Avhich the warrant is returnable: Provided, that in proceedings by attachment begun and had before justices of the peace, advertisement in a newspaper shall not be necessary, but in all such cases, advertisement at the court house door and four other public places in the county shall be suf- ficient publication, both as to the summons aud warrant of attachment. Sec. 353. When w^arrant granted by a justice of the peace. C. C. P., s. 200. 1876-'7, c. 251. If the action be not founded on contract, and the value of the property in controversy does not exceed the sum of fifty dollars, the warrant of attachment may, or if the action be founded on contract, and the sura demanded does not exceed two hundred dollars, the warrant of at- Chap. 10.] CODE OF CIVIL PEOCEDURE. 133 tachment must be obtained from, and made returnable before some justice of the peace of a county,to the super- ior court of which it might have been returnable had the sura demanded exceeded two hundred dollars, or bad the action not have been founded on contract. Grier v. Rhyne, 67—333. Sec. 354. Justice's attachment levied on land; wliat to be done. 1868-'9, c. 95, s. 4. If the attachment be levied on real property, the jus- tice shall proceed to try the action, but shall issue no ex- ecution to sell the real property, and shall return the papers in the case to the office of the clerk of the superior court of his county, where the judgment shall be dock- eted. The levy of the attachment, however, shall be a lien on the real estate. Sec. 355. Warrant procured; affidavits to be filed. C. C. P., s. 301. It shall be the duty of the plaintiff procuring a warrant of attachment, within ten days from the issuing thereof, to file the affidavits on which the same was gi-anted in the office of the clerk of the superior court to which, or with the justice of the peace before whom the process is made returnable. Sec. 35G. Undertaking before issuing a warrant. C. C. P., s. 202. Before issuing the warrant, the officer issuing the same shall require a written undertaking on the part of the plaintiff, with sufficient surety, to the effect, that if the defendant recover judgment, or the attachment be set aside by order of the court, the plaintiff will pay all costs that may be awarded to the defeudant, and all damages which he may sustain by reason of the attachment, not exceeding the sum specified in the undertaking, which shall be at least two hundred dollars. Wheeler v. Cobb, 75—21. Sec. 357. Warrant, to whom directed and what to re- quire. C. C. P., s. 303. The warrant shall be directed to the sheriff of any county in which the property of such defendant may be, or in case it be issued by a justice of the peace to such sheriff or to any constable of such county, provided such county be that of the justice issuing the warrant, and shall require such sheriff or constable to attach and. sate- 134 CODE OF CIVIL PROCEDURE. [Chap. 10. ly keep all the property of such defendant within his county, or so much thereof as may be sufficient to satisfy the plaintiff's demand, the amount of which must be stated in conformity with the complaint, together with costs and expenses; it nmst also state when and where it shall be returned. Several warrants may be issued at the same time to the sheriffs of different counties. Backalan v. Littlefield, 64—233; Wade v. New Berne, 73—498; Gamble V. Rbyne, 80—183. Sec. 358. Validity of undertaking. It shall not be a defence to an action upon an under- taking, given upon granting a warrant of attachment, that the warrant was granted improperly, for want of ju- risdiction, or for any other cause. Sec. 359. Warrant, liow executed. C. C. P., s. 204. The officer to whom such warrant of attachment is di- rected and delivered, shall seize and take into his posses- sion the tangible personal property of the defend- ant, or so much thereof as may be necessary, and he shall be liable for the care and custody of such property, as if the same had been seized under execution; he shall levy on the real estate of the defendant as pre- scribed for executions; he shall make and return with the warrant, an inventory of the property seized or levied on; subject to the direction of the court, he shall collect and receive into his possession all debts owing to the de- fendant, and take such legal proceedings, either in his own name, or in that of the defendant, as may be neces- sary for that purpose. Backalan v. Littlefield, 64— S33; Alexander v. Com'rs, 67—330; Insurance Co. V. Davis, 68— 17; Palmer V. Bosher, 71— 291; Com'rs v. Riley, 75— 144; Carmer v. Evers, 80—55; Gamble v. Rbyne, 80—183; Blair v. Pur- year, 87—101. Sec. 360. Proceedings wlien property attached is per- ishable, or a vessel. R. C, c. 7, s. 6. 1777, c. 115, s. 28. C. C. P., s. 205. If any property, so seized, shall be perishable, or of such character tbat the expense of keeping it until the determination of the suit would be likely to exceed one- fifth of its value, or if any part of it consists of a vessel, or of any share or interest therein, and the person to whom it belongs, or his agent, shall not within ten days after the serving of such attachment, reclaim the same, the sheriff or other officer having possession thereof, Chap. 10.] CODE OF CIVIL PROCEDURE. 135 shall apply to the court for authority to sell the same, sSnrthe circumstances; and the ^ame shal be so d, under the order and direction of the court, and the pi o- ceedso such sale shall be liable to the judgment o> tained upon such attachment, and ^hal be reta med by the sheriff or other officer to await such judgment. Haywood v. Hardie, 76—384. Sec. 361. Defeudaut may replevy before sale. B. C, c. 7, s. 5. 1777, c. 115, s. 28. . -, . , ij The person owning the property, advertised to be sold accoidino to the provisions of this sub-chapter, liis agent o Attorney may at any time before -«- ^^plevy he same by giving an undertaking, m double the amount ofThe vfxlue of^the property with ^-ffi^-f.^^^tfe'r S or effect that he will return the property to the &b«iitt. 1^^ other officer, if return thereof be adjudged by the con and pay all costs that may be awarded agamst hnn; and if return of said property cannot be had, then that he win p!y plaintiff the value of said property, and all co t. and daraa-es that may be awarded against him. And upon trelecutionof'this undertaking ^e shenff or other officer, shall deUver said property to the person ownina: the same. _ „. _,„ , Cherry V. Nelson, 7 Jon., 141; Barry v. Sinclair. Phil.. 7; Sims v. Goet- tie, 8S— 268. Sec 363. Interest in corporations or associations liable to attachment. C. C.P., s. 206. . The rights or shares which the defendant may have m the stock of any association or corpoi-ation, together wi h the interests and profits thereon, and all other property m this state of sich defendant, shall be liable, to be at- tached and levied on, and sold to satisfy the judgment and execution. Sec. 363. Attachment, how executed on property incapa- ble of manual delivery. C. C. P., s. 307. The execution of the attachment upon any such rights, shares or any debts or other property incapable of man- ual dehvery to the sheriff, shall be made, by leaving a c?rtified copy of the warrant of attachment with the preSdent or other head of the association or corporation or with the secretary, cashier or managing agent thereof, o? with the debtor or individual holding such property, with a notice showing the property levied on. 136 CODE OF CIVIL PEOCEDURE. [Chap. 10 Sec. 3G4. A garnishee summoned to answer on oath; judgment against garnisliee. K. C, c. 7, s. 7. 1777, c. 115, s. 28. When the sheriff or other oflScers shall serve an attachment on any person supposed to be mdebted to, or to have any effects of the defendant in the attachment, he shall at the time summons such person as a garnishee in writing, to appear at the court to which the attach- ment shall be returnable, or if issued by a justice of the peace at a place and time named in the notice, not ex- ceeding twenty days from date of notice, to answer upon oath what he owes to the defendant, and what effects of the defendant he hath in his hands, and had at the time of serving such attachment, and what effects or debts of the defendant there are in the hands of any other, and what person, to his knowledge and behef ; and when an attachment shall be served on any garnishee in manner aforesaid, it shall be lawful upon his appearance and examination to enter up judgment and award execu- tion for the plaintiff against such garnishee, for all sums of money due to the defendant from him, and for all effects and estates of any kind belonging to the defend- ant, in liis possession or custody, for the use of the plaintiff, or so much thereof as "shall he sufficient to satisfy the debt and costs and all charges incident to levying the same; and all goods and effects whatsoever in the hands of any garnishee belonging to the defendant, shall be liable to satisfy the plaintiff's judgment, and shall be delivered to the sherilf or other officer serving the attachment. Russell V. Hiuton, 1 Mur.. 468; Freeman v. Grist, 1 D. & B., 217; Patton V. Smith, 7 Irecl., 438; Myers v. Beeman, 9 Ired., 116; Houston v. Porter, 10 Ired., 174; Orraond v. Moye, 11 Ired., 564; TiudcU v. Wall, Busb., 3; Spruill v. Trader, 5 Jon., 39; Clieny v. Nelson, 7 Jon., 141; Barrj' v. Sinclair, Phil., 7; Parker v. Scott, 64 — 118; Shuler v. Bryson, 65— 201 ; Tate V. Morehead, 65—681. Sec. 365. Proceedings against garnishee failing to appear. K. C, c. 7, s. 8. 1777, c. 116, s. 38. 1838, c. 3. When any garnishee shall be summoned as aforesaid, and shall fail to appear and discover on oath as directed, the court, after solemnly calling the garnisbee, shall enter a conditional judgment against him, and tiiereupon a notice shall issue against him returnable to the court having jurisdiction, to show cause why final judgment shall not be entered against him; and if, upon due exe- Chap. 10.] CODE OF CIVIL PEOCEDURE. 13T cution thereof, such garnishee shall fail to appear at the time and place named in the notice, and discover on oath in manner aforesaid, the court shall confirm said judg- ment and award execution for the plaintiff's whole judg- ment and costs; and if, upon examination of the garnishee, it shall appear to the court that there is any of the defendant's estate iu the hands of any person who has not been summoned, the court shall, upon motion of the plaintiff, grant a judicial attachment, to be levied in the hands of every such person having any of the estate of the defendant in his custody or posses- sion, who shall appear and answer, and shall be liable as other garnishees. Sec. 366. Garnishee denying he has any property; issue to be made up. B. C, c. 7, s. 9. 1793, c. 389, s. 2. When any garnishee shall deny that he owes to, or has in his possession any property of, the defendant, and the plaintiff shall on oath suggest to the court the contrary; or when any garnishee shall make such a statement of facts that the court cannot proceed to give judgment thereon, then the court shall order an issue to be made up, which shall be tried by a jury, and on their verdict judgment shall be rendered: Provided, that in a court of a justice of the peace, he may try such issue, unless a jury be demanded, and then proceedings are to be con- ducted, in all respects, as in jury trials before courts of justices of the peace. Cowles V. Oaks, 3 Dev., 96. Sec. 367. Articles confessed by garnishee, to be valued by jury and judgment for their value; in what cases gar- nishee excused. B. C, c. 7, s. 11. 1793, c. 389, s. 1. 1794, c. 434, s. 1. When a garnishee shall on oath confess that he has in his hands any property of the defendant of a specific na- ture, or is indebted to such defendant by any security or assumption for the delivery of any specific article, except as hereinafter excepted, then the court shall immediately order a jury to be impaneled and sworn to inquire of the value of such specific property, and theverdict ofthe jury shall subject such garnishee to the payment of the valu- ation, or so much thereof as shall be sufficient to satisfy the debt or damages, and costs to the plaintiff: Provided, that in a court of a justice of the peace, he may try such issue, unless a jury be demanded, and then proceedings are to be conducted iu all respects as in jury trials before 138 CODE OF CIVIL PROCEDUEE. [Chap. 10. couits of justices of the peace. Provided, further, that if such garnishee shall also state in his answer that said specific property was left, or deposited, in his possession by the defendant as a bailment, or that he hath tendered said specific articles agreeable to contract, and that they were refused by the defendant, and that he then was,and always had been, ready to deliver the same; or that he had such specific articles at the time and place specified in such covenant or agreement ready to be delivei'ed, and is still ready to deliver the same; and such statement shall be admitted by. the plaintiff or found by a jury or the court, then in any such case, the garnishee shall be exon- erated by the delivery of such specific articles to the sher- iff, who shall proceed as if the attachment had been originally levied on the property. Cherry v. Hooper, 7 Jon., 82. Sec. 368. Judgment conditional ag'ainst garnishee, when. R. C, c. 7, s. 12. 1794, c. 424, s. 2. When any garnishee shall declare in his answer, that the money or specific article due by him will become pay- able or deliverable at a future day, and the same shall be admitted by the plaintiff or found by a jury or the court, in such case conditional judgment shall be entered against the garnishee, and the plaintiff may obtain judg- ment against the defendant for his demand, but shall not take final judgment against the garnishee without notice to show cause. Sec. 369. Certificate of defendant's interest to be fur- nished. C. C. P., s. 208. Whenever the sheriff or other lawful officer with a warrant of attachment or execution, shall apply to any officer mentioned in section three hundred and sixty three, or to any debtor or individual, for the purpose of attaching or levying on the pioperty of the defendant in such war- rant, such officer, debtor or individual shall furnish him with a certificate under his hand, designating the numlier of rights or shares of the defendant in such association or corporation, with any dividend or any incumbrance thereon, or the amount and description of the property held by such association, corporation, or individual, for the benefit of, or debt owing to the defendant. If such officer, debtor or individual refuse to do so. he may be le- quired by the court or judge to attend before him, and be examined on oath concerning the same, and obedience to such ordei- may be enforced by attachment. Gamble v, Rliyne, 80—183. Chap. 10.] CODE OF CIVIL PROCEDURE. ^>^ See 370. Judgment, how satisfied. C. C. P., s. 209. Ill case iudament be entered for the plaintiff in such action, the sheriff shall satisfy the same out of the prop- erty attached by him, if it shall be sufficient for that pur- ^Tri Bv paying; over to such plaintiff the proceeds of all property sold by him, and of all debts or credits collected by him, or so much as shall be necessary to satisfy such iudgment; , i.- i, n (2) If any balance remain due, and an execution shall have been issued on such judgment, he shall proceed to sell under such execution so mucli of the attached prop- erty real or personal, except as provided m subdivision four of this section, as may be necessaiy to satisfy the balance, if enough for that purpose shall remain m his hands; and in case of the sale of any rights or shares m the stock of a corporation or association, the sheriff shall execute to the purchaser a certificate of sale thereof and the purchaser shall thereupon have all the rights and privileges in respect thereto which were had by such defendant; , , x i i • + i-u^ (3) If any of the attached property belonging to the defendant, shall have passed out of the hands of the sheriff without having been sold or converted into money, such sheriff shall repossess himself of the same and for that purpose, shall have all the authority which he had to seize the same under the attachment: and any person who shall wilfully conceal or withhold such property from the sheriff, shall be hable to double damages at the suit of the party injured; _ + u n k^ (i) Until the judgment against the defendant shall be paid the sheriff may proceed to collect the notes and other evidences of debt, and the debts that may hav-e been seized or attached, under the warrant of attachment, and to prosecute any bond he may have taken m the course of such proceedings, and apply the proceeds there- of to the payment of the judgment ,,,,,. . At the expiration of six months, from the docketing ot the judgment, the couit shall have power upon the peti- tion of the plaintiff, accompanied by an affidavit setting forth fully all the proceedings which have been had by the sheriff, since the service of the attachment the property attached, and the disposition thereof, and also the atfidavit of the sheriff that he has used due diligence, and endeavored to collect the evidences ot debt m Ins hands so attached, and that there remains uncollectecl ot the same, any part or portion thereof, to order the shentt 140 CODE OF CIVIL PROCEDURE. [Chap. 10. to sell the same upon such terms and in such manner as shall be deemed proper. Notice of such application shall he given to the defendant or to his attorney, if the defend- ant shall have appeared in the action. In case the sum- mons has not been personally served on the defendant, the court shall make such rule or order, as to service of notice, and time of service, as shall be deemed just. When the judgment and all costs of tlae proceedings shall have been paid, tlie siieritf upon reasonable demand, shall deliver over to the defendant the residue of the attached property, or the proceeds thereof. Copper Co. v. Martin, 70—300; Com'rs v. Riley, 75—144 ; Gamble v. Rhyne, 80—183. Sec. 371. When action to recover notes, &c., of defend- ant may be prosecuted by plaiutiflfin the action in which the attachment issued. C. C. P., s. 210. The actions herein authorized to be brought bv the sheriff may be prosecuted by the plaintiff, or under his direction, upon the delivery by him to the sheriff', of an undertaking executed by two sufficient sureties, to the effect that the plaintiff will indemnify the sheriff from all damages, costs and expenses on account thereof, not ex- ceeding two hundred and fifty dollars in any one action. Such sureties shall, in all cases when required by the sheriff, justify by making an affidavit that each is a freeholder, and worth double the amount of the penalty of the bond, over and above all demands, liabilities and exemptions. Shuler T. Bryson, 05-201 ; Carmcr v. Evcrs, 80—55. Sec. 372. Bond of plaintiff, how disposed of, on judg- mentfor defendant. C. C. P., s. 211. If the foreign corporation, or the absent, absconding, or concealed defendant, recover judgment against the plaintiff in such action, any bond taken upon the issuing of the warrant of attachment, and any bond taken by the sheriff, except such as are mentioned in the preceding sec- tion, all the proceeds of sales and moneys collected by him, and all the property attached remaining in his hands, shall be delivered by him to the defendant or to his agent, on request, and the warrant shall be discharged and the property released. Sec. 373. Attachment discharged, and property or its proceeds returned to the defendant on liis appearance in action. C. C. P., s, 212. 1870-'l, c. IGC. Whenever the defendant shall have appeared in such ac- Chap. 10.] CODE OF CiViL PROCEDUEE. 141 tion, he may apply to the court in which the action is pending, or to the judge thereof, for an order to dis- charge the same; and if the same be granted, all the pro- ceeds of sale, and moneys collected in such action and all the property attached remaining in the hands ot any officer of the court, under any process or order in such action, shall be delivered or paid to the defendant or to his agent, and released from the attachment. And where there is more than one defendant, and several nroperty of either of the defendants has been seized by virtue of the order of attachment, the defendant, whose several property has been seized, may apply mlike man- ner for relief. „ . _x , Bearv. Cohen, 65-511; Palmer v. Boslier, 71-291; Rahity v. Strmgfel- low, 73-338; Palmer v. Boslier, 73—371; Devries v. Summit, 86—136. Sec. 374. Undertaking of defendant on appearance to discharge the property. C. C. P., s. 313. Upon such application the defendant shall dehver to the court an undertaking, executed by two sureties resid- ing in this state, approved by such court, to the ettect that such surety will, on demand, pay to the plaintitl the amount of judgment that may be recovered against the defendant in the action, not exceeding the sum specified in the undertaking, which shall be at least double the amount claimed by the plaintiff in his complaint. If it shall appear by affidavit, that the property attached be of less value than the amount claimed hy the plamtitt, the couit or judge may order the same to be appraised, and the amount of the undertaking shall then be double the amount so appraised. And where there is more than one defendant, and several property of either of the de- fendants has been seized by virtue ot the order of attach- ment the defendant whose several property has been seized may deliver to the court an undertaking, m ac- cordance with this section, to the effect that he wiU, on demand, pay to the plaintiff the amount of judgment that may be recovered against such defendant. And all of this section, applicable to such an undertaking, shall be apphed thereto. ,^ ^^ ., Stephenson v. Todd. C3-368; Boar v. Cohen, 65-511; Myers v, Hamd- ton. 65-567; Brown v. Hawkins, 65-645; Canal Co. v. McAllister, 74— 159'; Weller V. Lawrence, 81—65; BrufE v. Stern, 81—183. Sec 375. Property claimed by third party, may inter- plead. K. C, c. 7, s. 10. 1793, c. 389, s. 3. When the property attached shaU be claimed by any U2 CODE OF CIVIL PROCEDURE. [Chap. 10. other person, the claimant may interplead, as provided in section three hundred and thirty-one. Simpson v. Harry, 1 D. & B., 202; JIcLean v. Douglass, 6 Ired., 233 ■ Evans v. Mining Cv., 5 Jon., 331; Cherry v. Nelson, 7 Jon., 141 ; Bunk v. Spurling, 7 Jon., 398; Sims v. Gocttle, 82—268; Sims v. GoetUe, 82—271; Blair v. Puryear, 87—101. Sec. 376. When the sheriff" to return warrant, with his proceeding-s thereon. C. C. P., s. 214. The sherifif shall I'eturn the warrant of attachment,and the undertakings provided for in this chaptei-, with a statement of his proceedings thereon, at the time and place at which it is on its face returnable, and upon, or at any time after, such return, he may obtain from the court to which the same was returnable, a certified copy thereof, which shall be held and deemed for the purpose of giving him authoiity, the same as the original, and when the warrant shall have been fully executed or dis- chaiged, the sheriff shall return the same, with his pro- ceedings, to said court. Sec. 377. Motion to vacate or modify warrant, or increase security. The defendant, or a person who has acquired a lien upon, or interest in, his property after it was attached, may at any time before the actual application of the at- tached property, or the proceeds thereof, to the payment of a judgment recovered in the action, apply to the court having jurisdiction to vacate or modify the warrant, or to increase the security given by the plaintiff, or for one or more of those forms of relief, together or in the alter- native, as in cases of other provisional remedies. Bear V. Coben, 65—511 ; Brown v. Hawkins, 65—645; Brull v. Stern, 81— 183; Devries v. Summit, 86—126. Sec. 378. Exception to and justification of sureties. The sureties to all undertakings in all proceedings for attachment may be excepted to, and justified as requii-ed in action for claim and dehvery. Chap. 10.1 CODE OF CIVIL PROCEDURE. U3 CHAPTER FIVE. APPOINTMENT OF EECEIVERS AND OTHEK PEOVIS- lONAL REMEDIES. Section I SJ^otion. 379. Appuiutment ot receivers. 382. Judgment for sum admitled to 880. Property licld by trustees. 381. Judge may puuish disobedieuee lo order. be due. 383. Keceiver to give security. Sec. 379. A4,i.oiutiacnt of receivers. C. C. P., s. 215. 1876-'7, c. 23.3. 1879, c. 6.-?. 1881, c. 51. A iudge of the superior court having authority to grant restrainmg orders and injunctions, as prescribed ni title nine sub'chapter three of this chapter, shal have the Uke iurisdiction in appointing receivers, and all motions to show cause shall be returnable as is provided for in- iunctions. . A receiver may be appointed— (1^ Before iudgment, on the application of eithei party, when he establishes an apparent right to property wlch is the subject of the action, and which is m the possession of an adverse party, and the property or its rents and profits, are in danger of being lost, or materiab vhijSm- impaired; except in cases where judgment upon failure to answer may be had on application to the ""'^("'l 'After judgment, to carry the judgment into effect; 3 After jud|ment, to dispose of the property accord- ing to the judgment, or to preserve it during the pen^l- ln?y of an appeal, or when an execu ion has been Srned unsatisfied, and the judgment debtor re uses to apply his property in satisfaction of the .pidgment; _ O) Incases provided in said chapter and by special statutes when a corporation has been dissolved, or is iiiroUent orin imminent danger of insolvency, or has "Sted its corporate rights; and in like cases, of the property within this state of foreign corporations. Re- ceived of the property within this state of foreign or other corporations shall be allowed such commissions as may be fixed bv the judge appointing them, not exceed- Sg^five per cent on the amount received and disbursed ^Pa^tkrv^Spiiukle, G4-637; Richards v. Baurman, 65-163; Skinner v. lU CODE OF CIVIL PEOCEDUEE. [Chap. 10. Maxwell, 66—45; Howes v. Mauney, 66—218; Battle v. Davis, 60-253; Skinner v. JIaxwell, 68 — 400; Rankin v. Minor, 72 — 124; Righton v. Prii- den, 73— 6i; Gray v. Gaitlier, 74—237; Ten-Broeck v. Orcliard, 74 — 409; Rollins V. Henry, 77 — 467; Dobson v. Simonton, 78—63; Kerchner v. Fairley, 80—24: Twitty v. Losan, 80—69; Corbin v. Berry, 83—27; Nesbitt V. Turrentine, 83—535; Oldham v. Bank, 84^304. Sec. 380. Property held by trustees. C. C. P., s. 215. When it is admitted, by the pleading or examination of a party that he has in his possession, or under his con- trol, any money or other thing capable of delivery, which, being the subject of the litigation, is held by him as trustee for another party, or which belongs or is due to another party, the judge may order the ^ame to be deposited in court, or delivei'ed to such party, with or without security, subject to the further direction of the judge. Parker v. Bledsoe, 87—231. Sec. 381. Judge may punish disobedience to order. C. C. P., s. 215. Whenever, in the exercise of his authority, a judge shall have ordered the deposit, delivery or conveyance of money or other property, and the order is disobeyed, the judge, besides punishing the disobedience as for con- tempt, may make an order requiring the sheriff to take the money or property, and deposit, deliver, or convey it, in conformity with the direction of the judge. Sec. 382. Judgment for sum admitted to be due. C. G. P., s. 215. When the answer of the defendant expressly, or by not denying, admits part of the plaintiff's claim to be just, the judge, on motion, may order such defendant to satisfy that part of the claim, and may enforce the order as it enforces a judgment or provisional remedy. Skinner v. Maxwell, 68 — 400; Rankin v. Minor, 73 — 134; Gray v. Gaither, 74^237; Rollins v. Henry, 77—467. Sec. 383. Receiver to give security. A receiver appointed in an action or special proceeding must, before entering upon his duties, execute and file with the clerk of the court wherein the action is pend- ing, an undertaking payable to the adverse party with at L'ast two sufficient sureties in a penalty fixed by the judge or justices, making the ai)pointment, conditioned for the faithful discharge of his duties as receiver. And Chap. 10.] CODE OF CIVIL PROCEDUEE. 145 the judge or justices, having jurisdiction thereof, may at any time remove the receiver, or direct him to give a new undertaking, with new sureties, with the hke con- dition. But this section does not apply to a case where special provision is made by law, for the security to be given by a receiver, nor for increasing the same, nor for removing a receiver. Lord V. Meroney, 79—14; Bank v. Creditors, 86—233. TITLE X. OP THE TRIAL AND JUDGMENT IN CIVIL ACTIONS. Chap. I. Judgment upon Failure to Answer. II. Issues and the Mode of Trial. III. Trial by Jury. IV. Trial by Court. V. Trial by Referee. VI. The Manner of Entering Judgment. CHAPTER ONE. JUDGMENT UPON PAILURE TO ANSWER. Section. 384. Judgment defined. 885. Judgment by default final, in ■what cases. 386. [n all other actions upon failure to answer, judgment by default and inquiry. 887 Judgment against infants in cer- tain cases validated. Section. 388. Judgment on frivolous de- murrer, answer or n ply. 389. Provisions of this chapter ap plicable to courts of jusiices of the peace. 390. In actions to recover real prop- erty or the possession thereof. Sec. 384. Judgment defined. C. C. P., s. 216. A judgment is either interlocutoiy, or the final deter- mination of the rights of the parties in the action. Gibson v. Groner, C3— 10; Mitchell v. Henderson, 63—643; Garrett t. 7 146 CODE OF CIVIL PROCEDURE. [Chap. 10. Smith, 64-93; Brown v. Foust, 64—672; Lee v. Pearce, 68—76; Hutchin- son v. Smith, 68 — 354; Dunn v. Barnes, 73 — 273; Davidson v. Alexander, 84^621; Miller v. Justice, 86—26; McDonald v. Dickson, 87—404. Sec. 385. Judgment by default final, in what eases. C. C. P., s. 217. 1870-'l, c. 42. Judgment by default final may be had on failure of defendant to answer, as follows: (1) Where complaint sets forth one or more causes of action, each consisting of the breach of an express or im- plied contract to pay, absolutely or upon a contingency, a sum or sums of money fixed by the terms of the contract, or capable of being ascertained therefrom by computa- tion. Upon proof of jieisonal service of summons, or of service of summons by publication, on one or more of the defendants, and upon the complaint being verified, judg- ment shall be entered at the return term for the amount mentioned in the complaint, against the defendant or de- fendants, or against one or more of several defendants, in the cases provided in section two hundred and twenty- two. (2) Where the defendant, by his answer in such action, shall not deny the plaintiff's claim, but shall set up a counter-claim, amounting to less than the plainti)0 CODE OF CIVIL PROCEDURE. [Chap. 10. prolixity and confusion must be avoided, by not having too many issues. School Committee v. Kesler, 66—323. Sec. 397. Trial defined. C. C. P., s. 223. A trial is the judicial examination of the issues between the parties, w^hether they be issues of law or of fact. Sec. 398. Issues, how tried. C. C. P., s. 224. An issue of law must be tried by the judge or court, unless it be referred. An issue of fact must be tried by a jury, unless a trial by jury be waived, or a reference be ordered. Erwia v. Lowery, 64 — 331 ; Andrews v. Pritchett 66 — 387 ; Swcpson v. Harvey, 66—436; Goldsborough v. Turner, 67—403; Armfleld v. Brown, 70—27; Isler v. Murphy, 71—436; Lippard v. Roseman, 72—427; Womble V. Fraps, 77—198; Chasteen v. Martin, 81—51. Sec. 399. Other issues to be tried by the court or judge. C. C. P., s. 225. Every other issue is triable by the court, or the judge thereof who, however, may order the whole issue, or any specific question of fact involved therein, to be tried by a jury, or may refer it. And when a compulsory reference is ordered either party has the right to have the issues of fact tried by a jury. Andrews v. Pritchett, 66—387; Goldsborough v. Turner, 67—403; Green V. Castlebury, 70—20; Keener v. Finger, 70—35; Stith v. Looka- bill, 71—35. Sec. 400. Issues of Fact, when to be tried. C. C. P., s. 226. Every issue of fact joined on the pleadings, and inquiry of damages required to be tried by a jury, shall be tried at the term of the court next ensuing such joinder of issue or order for inquiry: Provided, such issue shall have been joined or order for inquiry made, more than thirty days before such term, but if not, they shall be tried at the second term after such joinder or order. Sec. 401. Trial may be postponed by clerk or judge be- fore the trial term on notice. C. C. P., s. 227. Any party to an action may apply to the court in which it is pending, or to the judge therof,after three days' no- tice in writing to the adverse party, to have the trial de- ferred to a term subsequent to that in which it is regu- larly triable; such apphcation must bo made thirty days Chap. 10.] CODE OF CIVIL PROCEDURE. 151 before the trial term, and must be on affidavit. The court or judge may defer the trial as asked for, on such terms as shall be just, if satisfied— (1) That the apphcant has used due dihgence to have his case ready for trial; and, ■, , • (2) That by reason of circumstances beyond nis control, which he shah set forth, he cannot have a fair trial at the regular trial term; if the ap- phcation is made by reason of the expected absence ot a witness, it shall state the name and residence of the wit- ness, the facts expected to be proved by him and the grounds for the expectation of his non-attendance, and that the applicant expects to procure his evidence at or before some named subsequent term. The apphcant shall in all cases pay the costs of the apphcation. Sec. 402. Trial postponed by judge in term time, when. C. C. P., s. 238. The judge at any time during the term at which an action is triable, may postpone the trial on the apphca- tion of either party, and on such terms as shall be ]ust, if satisfied: n . -.-v i. u (1) That the apphcant has used due diligence to be ready for trial; „ . , . , j_ ^, . ^ i (2) That he cannot have a fair trial at that term, by reason of circumstances stated, and if the ground of ap- phcation be the non-attendance of a witness, the affidavit shall contain the particulars required by sub-division two of the preceding section. Unless the apphcant shall also set forth in his affidavit that the facts upon which his apphcation is grounded occurred or came to his knowl- edge too late to ahow him to apply as prescribed m the preceding section, and that his apphcation is made as soon as it reasonably could be after the knowledge of such facts, the postponement shall not be granted, except on the terms of the payment of the costs in the action for the term. Moore v. Dickson, 74-423; Isler v. Dewey. 79—1. R. C, c. 31, s. 57 (13, 14). Sec. 403. Order of business. C. C. P., s. 329. The criminal calendar shall be first disposed of, unless, by consent of counsel, or for leasons satisfactory to the judge, particular criminal actions may be deferred. The issues on the civil calendar shaU be disposed of in the following order, unless, for the convenience of parties or the dispatch of business, the court shall otherwise direct: 152 CODE OF CIVIL PROCEDURE. [Chap. 10. (1) Issues of fact to be tried by a jury; (2) Issues of fact to be tried by the court; (3) Issues of law. Armfield v. Brown, 70-37; Lippard v. Roscman, 72-437; Thomas v Myers, 87—31. CHAPTER THREE. TEIAL BY JUEY. Sectioit, 404. Jury, Low (liawtL 405. Petit jurors sworu in civil cases; defaulting persons fined. 406. Names of jurors to be called before impaneled; right of challenge. 407. Scparaie trials. 408. General and special verdicts defined. 409. When jury may render either a general or special verdict, and when judge may direct a spe- cial finding. Section. 410. On special finding with general verdict, former to control. 411. Jury to assess defendant's dam- ages in certain cases. 413. Entry of the verdict; motion for new trial on judge's min- utes; exceptions how taken, and how deemed taken. 413. Judge to explain law, but to express no opinion on facts. 414. Judge to put his instructions in writing. 415. Counsel to put their prayers for instruction in writing. K. C, c. 31, s, 33. 1779, Sec. 404. Jury, how drawn, c. 157, s. 11. The .judges of the superior court, at the term of their courts, shall direct the names of all persons returned as jurors to be written on scrolls of paper and put into a box or hat and drawn out by a child under ten years of age- whereof the first eighteen drawn, shall be a grand jury for the court; and the residue shall serve as petit jurors for the court. State V. Davis, 3 Ired., 153; State v. Heaton, 77—505; State v. Smith 80— 410. Sec. 405. Petit jurors sworn in civil cases; defaulting persons fined. B. C, c. 31, s. 34. 1700, c. 321 1822 c. 1133, s. 1. ' The clerk shall, at the beginning of the court, swear such of the petit jury as are of the original panel, to trv all civil cases; and if there should not be enough of the Chap. 10.] CODE OF CIVIL PROCEDURE. 153 orio-inal panel, the talesmen shall be sworn; and the petit iurors of the original panel, as well as talesmen sliall be sworn as prescribed in the chapter entitled -Oaths : Provided, that nothing herein shall be construed to dis- allow the usual challenges in law to the whole .jury so sworn or to any of them; and if by reason of such chal- leno-e any iuror shall be withdrawn, his place on the iury shall be supplied by any of the original venire ox: from the bystanders qualified to serve as jurors, and the iudge or other presiding officer of the court shall decide all questions as to the competency of jurors in both civil and criminal actions. Any juror failing to appear shall be fined by the court the sum of forty dollais, and notice shall issue to such juror to appear at the next term ot the court and show cause why the judgment should not be made absolute. Sec. 406. Names of jurors to be called before impaneled; right of cliallenge. K. C, c. 31, s. 35. 1796, c. 452, s. 2. 1812, c. 833. The clerk, before a jury shall be impaneled to try the issues in any civil suit, shall read over the names of the jury upon the panel in the presence and hearing ot the parties or their counsel; and the parties, or their counsel for them, may challenge peremptorily four jurors upon the said panel, without showing any cause theretor, which shall be allowed by the court. Ward V. Bell, 7 Jon., 79; Bryan v. HaiTisou, 76—360. Sec. 407. Separate trials. C. C. P.,s. 230. A separate trial between a plaintiff and any of the sev- eral defendants may be allowed by the court, whenever, in its opinion, justice will thereby be promoted. Sec. 408. General and special verdicts defined. C. C. P., s. 232. A general verdict is that, by which the jury pronounce generally upon all or any of the issues, either m favor of the plaintiff or defendant. A special verdict is that by which the jury find the facts only, leaving the judgment to the court. School Committee v. Kesler, 66—323. Sec. 409. When jury may render either a general or spe- cial verdict, and when judge may direct a special find- ing. C. C. P., s. 233. In an action for the recovery of specific personal prop- 154 CODE OF CIVIL PEOCEDUEE. [Chap. 10. erty, if the property has not been dehvered to the plain- ift, or the defendant by his answer claims a return thereof, the jury shall assess the value of the property, if then- verdict be in favor of the plaintiff; or if they find in favor of the defendant, and that he is entitled to a return thereof, they may at the same time assess the damages, if any are claimed in the complaint or answer, which the prevailing party has sustained bv reason of the detention or taking and withholding such property. In every action for the recovery of money only, or spe- cific real property, the jury, in their discretion, may ren- der a general or special verdict. In all other cases, the court may direct the jury to find a special verdict in writing, upon all or any of the issues; and in all cases may instract them if they render a general verdict, to find upon particular questions of fact, to be stated in writing, and may direct a written finding thereon. The special verdict or finding shall be filed with the clerk, and entered upon the minutes.. Outlaw V. Hurdle, 1 Jon., 150; Watson v. Davis, 7 Jon., 178: Henry V. Rich, 64—379; Couglikn v. White, 66—102; School Committee v. Kesler. 66—323; Holmesv. Godwin, 69—467; Armfieldv. Brown, 70—27; Williama v. Thomas, 78—47; Grant v. Bell, 87—34. Sec. 410. On special finding with general verdict, former to control. C. C. P., s. 234, Where a special finding of facts shall be inconsistent with the general verdict, the former shall control the latter, and the court shall give judgment accordingly. Sec. 411. Jury to assess defendant's damages in certain cases. C. C. P., s. 235. When a verdict is found for the plaintiff in an action for the recovery of money, or for the defendant when a set off for the recovery of money is established, be- yond the amount of the plaintiflEs claim as estabhshed, the jury must also assess the amount of the recovery; they may also, under the direction of the court, assess the amount of the recovery when the court gives judg- ment for the plaintiff on the answer. If asetoff, estab- lished at the trial, exceed the plaintiff's demand so estab- hshed, judgment for the defendant must be given for the excess; or if it appear that the defendant is entitled to any other affirmative rehef, judgment must be given ac- cordingly. Chap. 10.] CODE OF CIVIL PEOCEDUEE. 155 Sec 412. Entry of the verdict; motion for new trial on judge's minutes; exceptions Uow taken, and when deemed taken. C. C. P., s. 236. (1^ Upon receiving a verdict, the clerk shaU make an entry in his minutes, specifying the time and place of the tiial the names of the jurors and witnesses, the verdict, and either the iudgment rendered thereon, or an order that the cause be Reserved for argument or further con- sideratfon If a different direction be not given by the court, the clerk must enter judgment m conformity with ^%Titan exception be taken upon the trial, it must be reduced to writing at the time with so much of the evi- dence or subject matter as may be material to the ex- Son tJkei; the same shall be entered m the judge's SFnutes and be tiled with the clerk as a part of the case "Ts'f I? there shall be error, either in the refusal of the judge to grant a prayer for instructions, or m granting a prayer, or in his instructions generally, the same shal be dSmed excepted to without the filing of any formal ''^^ifThTiudge who tries the cause may, in his discre- tion entertain a motion, to be made on his mmutes to set aside a verdict and grant a new trial upon exceptions, or for insufficient evidence, or for excessive damages; but such motion can only be heard at the same term at which the trial is had. When such motion is heard and decided upon the minutes of the judge, and an appeal is taken from the decision, a case or exceptions must be settled in the usual form, upon which the argument of the appeal must be had. Bledsoe v. Nixon. 69-81; Holmes v. Godwin, 69-467; ArmfleW v. Brown 70-37; Shelian v. Malone, 73-59; Winburne v. Bryan, 73-47; England Y. Duckworth. 75-309; Quincy v. Perkins. 76-395; Heniy v. Smtth, 78-37; Tankard y. Tankard, 79-54; Ballard v. Stanly. 79-637. Sec. 413. Judge to explain law, hut to express no opin- ion on facts. C. C. P., s. 237. R. C, c. 31, s. 130. 1796, c. 452, s. 1. . No judge, in giving a charge to the petit jury, either in a ci^l orl criminal Iction, shall give an opmion whether a fact is fully or sufBciently proven, such "patter being the true office and province of the jury; but he shall state in a plain and correct manner the evidence given in the case, and declare and explain the law arising thereon Orbison y. Morrison, 3 Mur., 551; Tate v. Greenlee, 3 Mur., 556; 156 CODE OF CIVIL PEOCEDURE. [Chap. 10. Sneed v. Crcath. 1 Hawks, 309; Reel v. Reel, 2 Hawks. 63; McNeill t. Mas- sey, 3 Hawks, 01 ; State v. Morris, 3 Hawks, 388; Reed v. Sbcnck, 2 Dev., 415; Stale V. Moses, 2 Dev., 453; State v. Lipscy, 3 Dev., 485; Stale t! May. 4 Dev., 328; State V. Davis, 4 Dev., 613; Stale v. Haney, 2 D. & B., 390; Slate V. Johnson, 1 Ired., 354: State v. Angel, 7 Ired., 27; McKntire v.' Durham, 7 Ired., 151; Bynumv. Bynum, 11 Ired., 632; Overman v. Coble, 13 Ired., l;Baily V. Pool, 13 Ired., 404; Mclvin v. Kasley, 1 Jon., 386; State v. Cain. 3 Jon., 201 ; Wells v. Clements, 3 Jon., 1G8; State v. Whit, 5 Jon., 234; State v. Clara, 8 Jon., 25; Slate v. Norton, 1 Win.st., 303; Gailher v.' Perebee, 1 Wiast., 310; State v. Dick, 3 Winst., 45; State v. Summey, 3 Winst., 108; State v. Vinson, 03—335; Glenn v. R. R. Co., 63—510; Slate V. Dunlop, 05—288; State v. Parker, 66—624; Reiger v. Davis, 67—185; State V. Jones, 67—285, Powell v. R. R. Co., 68—395; Witkowsky v. Was- son, 71—451: Johnson v. Ray, 72-273; Barlow v. Norfleet, 72—535; Davis T. Hill, 75—224; State v. Dixon, 75—275; State v. Locke. 77—481; State v. Dancy, 78—437; State v. Malthews. 78—523: Slale v. Browning, 78— 555; State V. Laxton, 78—564; March v. Verble, 79—19; Sever v. McLaughlin,' 79—153; Wiseman v. Penland, 79—197; FicUey v. Merrimon. 79— 585;''siato T. Sykes, 79—618; State v. Austin, 79-024; Wilson v. White, 80—280;' State V. Hardee, 83—619; State v. Grady, 83—643; State v. .Tonkins, 85—544- State V. Robertson, 86—628; State v. Reynolds, 87—544; State v. Jones, 87—547. Sec. 414. Judge to put Lis instructions in writing. C. C P., s. 238. Every judge, at the request of any party to an action on trial, made at or before the dose of the evidence before instructing the jury on the law, shall put his in- structions in writing, and read them to tlie jury; he shall then sign and file them with the clerk as a part of the record of the action. Stout v. Woody, 63—37; Powell v. R. R. Co., 68—395; Morgan v. Smith, 77—37; Brink v. Black, 77—59; Williamson v. Canal Co., 78—156. Sec. 416. Counsel to put their prayers for instruction in writing. C. C. P., s. 239. Counsel praying of the judge instructions to the jury, shall put their request in writing entitled of the cause, and sign them; otherwise the judge may disregard them; they shall be filed with the clerk as a part of the record. Stout v. Woody, 63—37; Brink v. Black, 77—59; Williamson v Canal Co., 78—156. Chap. 10.] CODE OF CIVIL PROCEDUKE. 157 CHAPTER FOUR. TEIAL BT THE COUKT. Section. 416. Trial by .iuvy; bow waived. 417. On trial by the court, juJgment, Low givcu. Section. 418. Exception; how and when taken. 419. Prnccedings upon judgment on issue of law. Sec. 416. Trial by jury, how waived. C. C. P., s. 240. Trial by iury may be waived by tbe several parties to an issue of fact, inactions on contract and with the as- sent of the court in other actions in the manner foUow- (i) By failing to appear at the trial; (2) By written consent, in person or by attorney, hied with the clerk; -, ■ ,, ■ t „ (3) By oral consent, entered m the minutes. Armficld V. Brown, 70-37; Isler v. Murphy. 71-43G; Benbow v^ Rob- bins 73-423; Strauss v. Beardsley, 79-59; Chastain v. Coward, /9-543; Chastccnv. Martin, 81-51; University v. Lassiter. 83-38; Isler v. Koonce. 83—55. Sec. 417. On trial by tUe court, judgment, bow to be given. C. C. P.,s. 241. Upon the trial of a question of fact by the court, its decision shall be given in writing, ana shaU contain a statement of th.. facts found, and the conclusions of law separately; and upon a trial of an issue of law, the de- cision shall be made in the same manner stating the conclusions of law. Such Js, un- less othemfse directed by the.plaintiff therein within six weeks of the rendition of the judgment, and shaU mdor.e nnon the record the date ot such issue; and it the execu Zns issued are not returned satisfied to the courts to wS they are made returnable, the clerks shall issue I/S executions,^ithin six weeks thereafter, unless oth- e ^se fnstSed as aforesaid. . And fveiy derk who shall fail to comply with the requirements of this sect on shall be 1 able to^be amerced in the sum of o'^e hundred dollars for the benefit of the party aggrieved, undei the same rues that are provided by law for amercing shei^ Srand shall be further liable to the party in] u red by suit upon his bond. Bank V. Stafford, 2 Jon., 98; State v. McLeod. 5 .Jon 3!8; J'-P^- ^^ Simpson, 63-534; Badham v. Jones. 64-65.5; .. parU Schenck, 65-853. McKee v. Lineberger, 69—317. Sec 471. Officer to prepare deeds for property sold. B. C c. 4,5, s. 30. 1848, c. 39. Sheriffs or other officers, selling lands by authority of anv execution or process, shall, upon payment of ?L mice Prepare, execute and dehver to the purchaser adeed foJ the property purchased: Promded, that the puicliase^- of land shall furnish the officer with a descrip- tion of the land. Patrick V. Carr. Winst. Bq., 87; Skinner v. Warren, 81-373; Fox v. Cline, 85—173. Sec 473. Costs on execution satisfied in part or in whole ;« be paid to clerk; penalty forty dollars tor ta.lure. K. S., c. 76, s. 5. 1833, c. 1 149, s. 1. The sheriff or other officer shall pay the costs on all ex- ecu ons which shall be satisfied in whole or m part, to party °sSS ""Ser thf.same rales that are provided by law for amert-iiig sherifts. 182 CODE OF CIVIL PROCEDURE. [Chap. 10. CHAPTER TWO. DEFENDANT'S CLAIM FOE IMPEOVEMENT BEFOEE ISSUING EXECUTION. Section. 473. Petition to be filed by claimant; execution suspended; jury to assess damages and allowance. 474. Jury to estimate the annual value of land. 475. Defendant not liable for more than three years, unless he claims improvements. 476. Value of defendant's improve- ments to be estimated. 477. Improvements to b.ilance rents. 478. Jury to find a verdict for the Dalauce for plaintifl or defend- aut. 479. Balance due defendant to con- stitute a lien until paid. 480. Plaintiff claiming a less estate, and paying defendant allow- ance, may recover out of re- mainderman. Section. 481. Does not apply to action brought by mortgagee. 482. Defendant claiming allowance, plaintiff may have his estate valued without improvement. 483. Value of premises, how made. 484. Plaintiff may elect to let de- fendant take premises at valu- ation. 485. Payments to be made in court; land bound; if payments not made, land sold. 480. When plaintiff is a feme covert minor or in.sane, what is to be done with proceeds. 487. When defendant evicted by force of a bettt r title, he or his representatives may recover from plaintiff. Sec. 473. Petition to be filed by claimant; execution sus- pended; .jury to assess damages and allowance. 1871- '3,c. 147, s. 1. Any defendant again.st whom a judgment shall be ren- dered for land, may, at any time before the execution of such judgment, present a petition to the court rendering the same, stating that he, or those under whom he claims, while holding the premises under a color of title be.ieved by him or them to be good, have made perma- nent miprovements thereon, and praying that iie may be allowed for the same, over and above the value of the use and occupation of such land; and thereupon the court may, if satisfied of the probable truth of the allegation suspend the execution of such judgment ajid impanel a 3ury to assess the damages of the plaintiff and the allow- ance to the defendant for such improvements: Provided Chap. 10.] CODE OF CIVIL PROCEDUEE. 183 tliat in any such action, such inquiry and assessment may be made upon the trial of the cause. Pope V. Whitehead, 6^191; Daniel v. C--Pl-V ^^l^/zi';"'" ^ Scott, 81-383; Reed v. Exam, 84-430; Wharton v. Moore, 84-479, Scott V. Battle, 85—184. Sec. 474. Jury to estimate the annual value of land. 1871-'2, c. 147, s. 3. The iury in assessing such damages shall estimate against the defendant the clear annual value of the prem- fsls during the time he was in possession thereof, exclu- sive of thf use by the tenant of the improvements there^ on made by himlelf or those under whom he clarms ^^^i also the damages for waste, or other injury, to the prem- ises committed by the defendant. Wetherell v. Gorman, 74—603. sec. 475. Defendant not liable for more than three years, unless he claims improvements. 187 1- -, c. i* < , x- o. The defendant shall not be liable for such ai;nual value for any longer time than three years before the suit or for damages for any such waste or other injury done be- f o5e said three years, unless when he claims for improve- ments as aforesaid. Sec. 470. Value of defendant's improvements to he es- timated. 1871-'3, c. 147, s. 4. If the iury sliall be satisfied that the defendant, or those under whom he claims, made on the premises at a time when there was reason to believe the title good un- de^ which he or they were holding the said premises, per- manlu and valuable improvements, they shall estimate S his favor, the value of such improvements as were so made before notice, in writing of the title under which the plaintiff claims not exceeding the amount actually expended in making them and not exceeding the amount ?J which the value of the premises is actually increased thereby at the time of the assessment. Daniel v. Grumpier, 75—184. Sec. 477. Improvements to balance rents. 1871-'2, c. 147, s. 5. .A +V, If the sum estimated for the improvements exceed the damages estimated by the jury against the defendant as aforesaid, they shall then estimate against him for any time before the said three years, the rents and promts ax:^ cruld against, or damages for waste or other injury done 184 CODE OF CIVIL PEOOEDURE. [Chap. 10. by him, or those under whom he claims, so far as may be necessary to balance his claim for impi'ovements- but in such case he shall not be liable for the excess, if any of such rents, profits, or damages beyond the value of im- provements. Sec. 478. Jury to find a verdict for the balance, for plaiu- tlftor defendant. 1871-'2, c. 147, s. C. After offsetting the damages assessed for the plaintiff and the allowances to the defendant for the improve- ments, if any, the jury shall find a verdict for the bal- ance for the plaintiff or defendant, as the case may be and judgment shall be entered therefor according to the verdict. Sec.479. Balance due defendant to constitute a lien until paid. 1871-'2, c. 147, s. 7. Any such balance due to the defecdant shall constitute a hen upon the land recovered by the plaintiff until the same shall be paid. Sec. 480. Plaintiffclaimingaless estate, and paving de- fendant allowance, may recover out of remaiuderuiau 1871-'2, c. 147, s. 8. If the plaintiff claim only an estate for life in the land recovered and pay any sum allowed to the defendant for improvements, he or his personal representative may recover at the determination of his estate from the re- mainderman or reversioner, the value of the said im- provements as they then exist, not exceeding the amount as paid by hnu, and shall have a lien therefor on the premises in like manner as if they had been mortgaged for the payment thereof, and may keep possession of said premises until it be paid. Sec. 481. Does not apply to action broug:lit by inortcaffce. ]871-'2, c. 147, s.!). fe fe «• Nothing herein shall extend or apply to any suit brought by a mortgagee or liis heirs or assigns against a mortgagor or his heirs or assigns for the recovery of the mortgaged premises. Wharton v. Moore, 8-1—479. Sec. 483. Defendant claiming,' allowance, plaintiff may have his estate valued without improvement. 1871-'2 c. 147, s. 10. ' When the defendant shall claim allowance for improve- ments, the plaintiff' may by entry on the record retpiiie » Chap. 10.] CODE OF CIVIL PROCEDURE. 185 that the value of his estate in the premises without the improvements shall also be ascertamed. Sec. 4:83. Value of premises, how made. 1871-'2, c. 147, The value of the premises in such cases shall be esti- mated as it would have been at the tune of the mquuy, ™ no such improvements had been made on the premises hv the tenant or any person under whom he claims, and shall be ascertained in the manner hereinbefore provided, for estimating the value of improvements. Sec 484. Plaintiff may elect to let defendant take prem- ises at valuation. 1871-'3, c. 147, s. 12. The plaintiff in such case, if judgment is rendered for him may, at any time during the same term, or before Sment is rendered on the assessment of the value of the improvements, in person or by his attorney m the cause enter on the record his election to relinquish his estate in the premises to the defendant at the value as Scerta ned and the defendant shall thenceforth hold all the estate that the plamtiff had therein at the commence- ment of the suit: Provided, he pay therefor the said value with interest in the manner in which the court may order it to be paid. Sec 485. Payments to be made in court; land bound; if payments not made, land sold. 1871-'2, c. 147, s. 13. The payments shall be made to the plaintiff or into court for his use, and the land shall be bound therefor, and if the defendant fail to make the said payments with- in or at the times hmited therefor respectively, the court mav order the land to be sold and the proceeds applied to the payment of said value and interest, and the surplus if any to be paid to the defendant; but if the said net proceeds be insufficient to satisfy the said value and in- terest, the defendant shall not be bound for the deh- ciency. Sec 486. When plaintiff is a feme covert, minor or in- sane, what is to be done with proceeds. 1871-'2, c. 147 s. 14. If the party by or for whom the land is claimed in the suit be a feme covert, minor, or insane, such value shall be deemed to be real estate, and be disposed of as the court may consider proper for the benefit of the persons interested therein. 186 CODE OF CIVIL PROCEDURE. [Chap. 10. Sec. 487. When defendant evicted by force of abetter title, he or his representatives may recover from plain- tiff. 1871-'2, c. 147, s. 15. If the defendant, his heirs or assigns shall, after the premises are so relinquished to him, be evicted thereof by- force of any better title than that of the original plain- tiff, the person so evicted may recover from such plaintiff or his representatives, the amount so paid for the prem- ises, as so much money had and received by such plain- tiff in his lifetime for the use of such person, with lawful interest thereon from the time of such payment. CHAPTER THREE. PKOOEEDINGS SUPPLEMENTAET TO THE EXECU- TION. Section. 488. (1) Execution returned unsatis- fied, order to answer concern- ing his property. (3) E.TCCution issued, not re- turned, order to issue upon affidavit. (3) Either party to examine witness. (4) Debtor leaving the state, or concealing himself, upon afli- davit of plaintiff that lie has property which lie refuses to apply, may be arrested and ordered to give undertaking. (5) No person to be excused from answering because it may criminate h;m, nor because he has executed a convey- ance, but his answer not to be used against him in any crim- inal prosecution. (6) Court or judge may forbid transfer of properly. 489. Execution issued, any debtor of judgment debtor may pay to sheriff. Section. 490. Execution issued and returned, upon affidavit, order to issue to any person having prop- erty of judgment debtor or to any person indebted to him over ten dollars, to ap- pear and answer; proceedings against joint debtors. 491. Witness required to testify as on trial of an issue. 492. Party or witness to appear be- fore referee and compelled to answer under oath; examina- tion certified to court or judge; corporations to an- swer by an officer. 493. Property of debtor not exempt from execution to be applied to payment of judgment; exception. 494. Judge to appoint receiver; transfer of property forbid- den ; other creditors having instituted supplementary pio- ccedlngs to be notified ; no Chap. 10.] CODE OF CIVIL PROCEDURE. 187 Section. ! Section. more th-n one receiver ap pointed, 495. Clerk of superior court to file order, record it, provide re- ceiver witli a copy; receiver to be vested with property; receiver subject to control 497. Property claimed by a third party, or debt denied, receiv- er to bring action, and in meantime transfer or payment forbidden. 498. Judge may order a reference, to report the evidence or facts. of ^utlo-e 499. Costs to be allowed. 496. Order to be filed in the office of 500. Disobedience to order; punish- what clerk, before vested men'- with real property. | sec. 488. Executiou returned unsatisfied, order to an- ;wer concerning His property. C. C. P.. s. 264. 1868- (itwh^n an execution against property of the judg- ment debtor, or any one of several debtors m the same Sment, issued to the sheriff of the county where he esdes or has a place of business, or if he do not les.de n the state, to the sheriff of the county where a ]udg- rnent roll o • a transcript of a justice's judgment is filed s returned unsatisfied,^n whole or in part, the JVKlgment cred tor, at any time after such return made, and withm three years from the time of issuing the execution, is en- tit ed to an order from the court to which the execution Is returned, or from the judge «^^reof, requiring such debtor to appear and answer concerning his P^ope ty be fore such court or judge, at a time and place specified m iSe order, within the county to which the execution was Toiv.Kirkland, 6^250; Parks v Sprinkle. 64-637; Walston t. Brvan 64-764- McKeithan v. Walker, 06-95; Hutchison v. Symons, 67-156 Vood, V.Jordan, 69-189; Rankin v. Minor, 7'^424,Wh.te- h ad V. Hellen 74-679; Hasty v. Simpson, 77-69; Blake v. Respass. 77-193- Rand v. Rand, 78-12; La Fountaine v. Southern Under-^riters, 79_514' Runion v. Ramsav. 80-60; Weiller v. Lawrence, 81-65; La Fountaine v. Southern Underwriters. 83-132; Hinsdale v. Smcla.r. 83—338; Bronson v. Ins. Co., 85 — 411. EXECUTION ISSUED. NOT RETURNED, ORDER TO ISSUE UPON AFFIDAVIT. (2) After the issuing of an execution against property, and upon proof by affidavit, of a party, his agent or attorney? t? the satisfaction of the court or a judge thereof! that any judgment debtor residmg m the 188 CODE OF CIVIL PEOCEDUEE. [Chap. 10. judicial district where such judge or officer resides, has property which he unjustly refuses to apply toward the satisfaction of the judgment, such court or judge may by an order, require the judgment debtor to appear at a specified time and place, to an?wer concerning the same; and such proceedings may thereupon be had for the application of the property of the judgment debtor towards the satisfaction of the jndgment as are provided upon the return of an execution, and the judgment creditor shaU be entitled to the order of examination under this sub-division, and under sub-division one of this section, although the judgment debtor may have an equitable estate in land subject to the hen of the judg- ment, or may have choses in action, or other things of value unaffected by the hen of the judgment, and incap- able of levy. ^ Howey v. Miller, 67—459; Bronson v. Inturance Co., 85—411 Youne V. Rollins. 85—485. EITHEH PARTY TO EXAMINE WITNESSJSS. (3) On an examination under this section, either party may examine witnesses in his behalf, and the judgment debtor may be examined in the same manner as a witness. La Fountain v. Southern Underwriters, 83—133; Bronson v. Insurance Co., 85—411. DEBTOR LEAVING THE STATE, OR CONCEALING HIMSELF, UPON AFFIDAVIT OF PLAINTIFF, THAT HE HAS PROP- ERTY WHICH HE REFUSES TO APPLY, MAY BE ARRESTED AND ORDERED TO GIVE UNDERTAKING. 1868-'9, c. 148, s. 4. 1868-'9, c. 277. (4) Instead of the order requiring the attendance of the judgment debtor, the court or judge may, upon proof by affidavit or otherwise, to his satisfaction, that there IS danger of the debtor leaving the state, or concealing himself, and that there is reason to believe that he has property which he unjustly refuses to apply to such judgment, issue a warrant requiring the sheriff of any county where such debtor may be, to arrest him and bring him before such court or judge. Upon being brought before the court or judge, he may be examined on oath, and, if it then appears that there is danger of Chap. 10.] CODE OF CIVIL PROCEDURE. 189 the debtor leaving the state, and that he has property which he has unlustly refused to apply to such judg- ment he shall be ordered to enter into an undertaking, with one or more sureties, that he will from time to lime, attend before the court or .ludge as he shaU direct, aiS hat he will not, during the pendency of the proceed- ings dispose of any property not exempt from execution in default of entenng into such uudertakmg, he may be committed to prison by warrant of the court or judge, as for a contempt. Bronson v. Ins. Co., 85—411. NO PERSON TO BE EXCUSED FROM ANSWERING BECAUSE IT MAY CRIMINATE HIM, NOR BECAUSE HE HAS EXECUTED A CONVEYANCE, BUT ANSWER NOT TO BE USED AGAINST HIM IN ANY CRIMINAL PROSECUTION. (5^ No person shall, on examination pursuaiit to tliis chapter, be excused from answering any question on the gi-ound that his examination will tend to convict him ot the commission of a fraud; but his answer shall not be used as evidence against him in any criminal proceeding or prosecution. #or shall he be excused ^^ome^nsj^en^ any question, on the ground that he has, before the ex- aminkon, executed any conveyance, assignment or transfer of his property for any purpose, but his answer shah not be used as evfdence against him m any criminal proceeding or prosecution. La Fountain v. Soulhein Underwriters, 83—132. COURT OR JUDGE MAY FORBID TRANSFER OF PROPERTY. (6) The court or judge may, by order, forbid a transfer or other disposition Sf the property of the ludgment debtor not ekempt from execution, or any interference ^^Zl7ex^arte 64-302; Ho^m v. Kirkland, 64-250; P.rks v. Sprinkle. eS.Vallton V. Bryln. 61-764; Howey v. MiHer, 67-459; Phmips V Trezevant, 70-176; Perry v. Bank. 70-309; Righton ^- P™ff ■ J^''^ ' La Fountain V. Southern Underwriters, 79-514; Idem., 83-133; Bronson V. Insurance Co., 85 — 411. Sec. 489. Execntiou issued, any debtor of judgment debtor may pay to sheriff. C. C. P., s. 265. After the issuing of execution against property, an 190 CODE OF CIVIL PROCEDUEE. [Chap. 10, persons indebted to the judgment debtor, or to any one of several debtors in the same judgment, may pay to the sheriff the amount of their debt, or so much thereof as shall be necessary to satisfy the execution; and the sher- iff's receipt shaU be a sufficient discharge for the amount so paid. Clerk's office V. Allen, 7 Jon., 1,56; Parks v. Sprinkle. 64^637- Clerk's office V. Bank, 66-214; Howey v. Miller, 67^59; Phillips v. TrezevanI 70—176; Rishton v. Prudeu, 73—61; Weiller v. Lawrence, 81—65; Smilli V. McMillan, 84—593; Bronsoa v. Ins. Co., 85 411. Sec. 400. Execution i.ssued and returned, upon affidavit, order to issue to any person having,' property of judg-- ment debtor or to any person indebted to hiiii over teii dollars to appear and answer; proceedings against joint debtors. C. C. P., s. 266. 1869-'70, c. 79, s. 3. After the issuing or return of an execution against property of the judgment debtor, or of any one of several debtors m the same judgment, and upon affidavit that any person or corporation has property of said judgment debtor, or is indebted to him in an amount exceeding ten dollars, the court or judge may, by an order, require such person or corporation, or any officer or members there- of, to appear at a specified time and place, and answer concerning the same. The court or judge may also in its or his discretion, require notice of such proceeding to be given to any party to the action, in such manner as may seem to him or it proper. The proceedings mentioned in this section and in sec- tion four hundred and eighty-eight may be taken upon the return of an execution unsatisfied, issued upon a judgment recovered in an action against joint debtors in which some of the defendants have not been served with the summons by which said action was commenced so far as relates to the joint property of such debtors' and all actions by creditors to obtain satisfaction of judg- ments out of the property of joint debtors are maintain- able in the like manner and to the like effect. These provisions shall apply to all proceedings and actions pend- ing and to those terminated by final decree or judgment. Parks V. Sprinkle, 61—637; McKeithan v. AYulkcr, 66-95; Sulton v' Askew, 66—172; Hutchison v. Synions, 67—156; Howcy v. Miller 67— 459; Keener V. Finger, 70—35; Phillips v. Trczevant, 70—176; Perry v Bank, 70—309; RigMon v. Prudcn, 73—61; Bliike v. Respass', 77—193; Rand v. Rand, 78—12; La Fountain v. Southern Underwriters' 79— 5I4-! Weiller v. Lawrence, 81—65; In re. Davis. 81—73; Bronson v. Ins. Co., 85 ^411. Chap. 10.] CODE OF CIVIL PROCEDURE. 191 Sec. 491. Witness required to testify as on trial of an issue. C. C. P., s. 267. Witnesses may be required to appear and testify on anTp-oceSings under this chapter, m the same manner as upon the trial of an issue. Bronson v. Insurance Co., 85—411 Sec 492. Party or witness to appear before referee, and ;om;;ilecl to answer under oatli; examination cer ified to court or judge; corporations to answer by an officer. C.C. P., s. 268. 1870-'l,c. 245, s.l. The party or witness may be required to attend before the court or iadge, or before a referee appointed by the roiirt or iudge: k before a referee, the examination s^rall be taken by the referee, and certified to the court or Sdge All examinations'and answers be ore a court or udS'orteferee, under this chapter, shall be on oath excfpt that when a corporation answers, the answer shaU be on the oath of an officer thereof. Clerk's office v. Bunk, 06-214; Husty v. Simpson, 77-69, La Founta.n V. Southern Underwriters, 83-133; Bronson v. Ins. Co., 85-411. Sec. 493. Property of debtor not exempt from execution to be applied to payment of judgment; exception. C.C. p„s. 269. 1870-'l, c. 245, s. 1. The court or judge may order any property, whether subiect or not to be sold under execution, (except the homestead and personal property exenaptions of the judg^ ment debtor,Un the hands either of himself oi of aiiy Sther per on or due to the judgment debtor, to oe applied towards the satisfaction of the judgment; except that t e earmngs of the debtor for his personal services, at any time within sixty days.next preceding he or(^er,canno^ be so applied when it is made to appear, by the debtoi s affidavit or otherwise, that such earnings are necessary ?or the use of a family supported wholly or in part by ^ Clerl's°office v. Allen. 7 .Jon., 156; Clerk's office v. Bank, 66-214; Rand V. Rand, 78—13; Bronson v. Ins. Co., 85—411. Sec. 494. Judge to appoint receiver; transfer of property forbidden; other creditors having instituted supple- mentary proceedings to be notified; ii« ■»«';f ,V''\"^^"'' receiver appointed. C. C. P., s. 270. 1» ^ 0-' 1 C. 24o, s 1. 1876-'7, c. 22;J. 1879, c. 63. 1881, c 51. The court or judge having jurisdiction over the ap- pointment of receivers may also by order in hke manner, 192 CODE OF CIVIL PEOCEDURE. [Chap. 10. and with like authority, appoint a receiver in proceedings under this chapter, of the property of the judgment debtor, whether subject or not to be sold under execu- tion, except the homestead and personal property exemp- tions. But before the appointment of such receiver, the court or judge shall ascertain, if practicable, by the oath of the party or otherwise, whether any other supple- mentary proceedings are pending agamst the judgment debtor, and if such proceedmgs are so pending, the plamtiff therein shall have notice to appear before him, and shall hkewise have notice of all subsequent proceed- ings in relation to said receivership. No more than one receiver of the property of a judgment debtor shall be appomted. The court or judge may also, forbid a trans- fer or other disposition of the property of the judgment debtor not exempt from execution, as homestead or per- sonal property exemptions, and any interference there- with. The title of the receiver shall relate back to the service of the restraining order, hereinbefore and herein- after provided for. Parks V. Sprinkle, 64—637; LaPountain v. Southern Underwriters, 79— 514; Brousou V. Ins. Co., 85 — 411. Sec. 495. Clerk of superior court to file order, record it, provide receiver with a copy; receiver to be vested with property; receiver subject to control of judge. C. C. P., s. 270. 1870.'1, c. 245, s. 1. Whenever the court or a judge shall grant an order for the appointment of a receiver of thepropertv of the judg- ment debtor, the same shall be filed in the "office of the clerk of the superior court of the county where the judg- ment roll in the action or transcript from justice's judg- ment, upon which the proceedings are taken, isfiled; and the clerk shall record the order in a book to be kept for that purpose in his office, to be called "book of orders, appointing receivers of judgment debtors," and shall note the time of the filing of said order therein. A cer- tified copy of said order shall be delivered to tlie receiver named therein, and he shall be vested with the property and effects of the judgment debtor from the time of the service of the restraining order, if such restraining order shall have been made, and if not, from the time of the filing and recording of the order for the appointment of a receiver. The receiver of the judgment debtor shall be subject to the direction and control of the court in k Chap. 10.] CODE OF CIVIL PROCEDURE. 193 which the judgment was obtained upon which the pro- ceedings are founded. Rankin v. Minor, 72—424; EigbtonT. Pruden, 73—61; Rand v. Rand, 78 —12; Corbin V. Berry, 83—27; Bronson v. Ins. Co., 85—411. Sec. 496. Order to be filed in the office of what clerk, toe- fore vested with real property. C. C. P., s. 270. But before the receivei- shall be vested with any real property of such judgment debtor, a certified copy of said order shall also be filed and recorded on the execution docket, in the office of the clerk of the superior court of the county in which any real estate of such judgment debtor sought to be affected by such order is situated, and also in tlie office of the clerk of the superior court of the county in which such judgment debtor resides. Bronson v. Ins. Co., 85 — 411. Sec. 497. Property claimed toy a third party, or detot de- nied, receiver to toring action, and in meantime trans- fer or payment forbidden. C. C. P., s. 271. 1870-'71, c. 245, s. 1. If it appear that a person or corporation alleged to have property of the judgment debtor, or indebted to him, claims an interest in the property adverse to him, or de- nies the debt, such interest or debt shall be recoverable only in an action against such person or corporation by the receiver; but the com't or judge may, by order, forbid a transfer or other disposition of such property or interest, till a sufficient opportunity be given to the re- ceiver to commence the action, and prosecute the same to judgment and execution, but such order may be modi- fied or dissolved by the court or judge having jurisdiction, at any time, on such security as he shall direct. Williams v. Green, 68—183; Bronson v. Ins. Co., 85 — 411. Sec. 498. Judge may order a reference, to report the evi- dence or facts. C. C. P., s. 272. The court or judge may, in his discretion, order a refer- ence to a referee agreed upon by the parties, or appointed by him, to report the evidence or the facts, and may, m his discretion, appoint such referee in the first order, or at any time. Hasty V. Simpson. 77—69; Bronson v. Ins. Co., 85 — 411. Sec. 499. Costs to be allowed. C. C. P., s. 273. The court or judge may allow to the judgment creditor, 8 194 CODE OF CIVIL PROCEDURE. [Chap. 10. or to any party so examined, whether a party to the action or not, witnesses' fees and disbursements. Bronsoa v. Ins. Co., 85 — 411. Sec. 500. Disobedience to order; punishment. C. C. P., s. 274. lSG9-'70, c. 79, s. 3. If any person, party, or witness, disobey an order of the court or judge or referee, duly served, such person, pai'ty or witness, may be punished by the judge as for a contempt. And in all cases of commitment under this sub-chapter, the person committed may, in case of inability to perform the act requii-ed, or to endure the imprisonment, be discharged from imprisonment by the judge committing him, or the judge having jurisdiction, on such terms as may be just. Parks V. Sprinkle, 64— G37; Bond v. Bond, 69—97; Justice v. Bank, 83 — 8; Ethcridge v. Woodley, 83 — 11; La Fountain v. Soutliern Under- writers, 83—132; Bronson v. Ins. Co., 85 — 411. CHAPTER FOUR. PEOPEETY EXEMPT FEOM EXECUTION, AND PEO- OEEDINGS TO LAY OEF THE SAME. Section. 601. Exemptions from sale under ex- ecution in force at Ibe time the debt was contracted, or cause of action arose, are to be set apart. 502. Sheriff to summon appraisers. 503. Duty of appraisers. 604. Appraisers to make return. 505. Levy to be made on the excess. 506. No election; appraisers to elect. 507. Personal property, how ap- praised; how return to be made. 508. Appraisers to take an oath ; fees of. 609. Tracts not contiguous, may be included in homestead. Section. 510. Costs, how taxed and by whom paid. 511. Homestead and personal prop- erty exemption may be sot off upon petition. 512. Assessors to set apart personal property, and return the same to register of deeds. 513. Register to endorse on return the date, and register the same. 514. When persons die, homestead not set apart, who may have the same set ajiart. 515. IIow petition is to be filed, and adverliscnicnt made. 516. Liability of officer making levy. Chap. 10.] CODE OF CIVIL PROCEDURE. 195 Section. refusing or neglecting to lay off homestead. 617. Liabilitj' of officer, appraiser or assessor conspiring with debt- or. 518. Liability of officer, appraiser or assessor conspiring with cred- itor. 519. Judgment creditor dissatisfied, how to proceed. Section. 520. When exemption made or al- lotted on petilion; objection thereto, how to be made. 521. Cost of re-assessment, how paid. 523. Undertaking of objector. 523. Appraisal or assessment may be set aside for what. 524. Return to be registered— forms. Sec. 501. Exemptions from sale under execution in force at the time tlie debt was contracted, or cause of action arose, are to be set apart. 1879, c. 250, s. 1. There shall be exempt from sale under execution or other final process issued for the collection of any debt upon all judgments heretofore, or which may be here- after rendered, such property as the judgment, debtor may have been entitled to have set apart and allotted to him at the time the debt was contracted, ot cause of action accrued, as follows: Earle V. Hardie, 80— 177; Carlton v. "Watts, 83—212; Grant v. Hughes, 83—216; Walkins v. Overley, 83—165; Lamb v. Chamness, 84—379; Dail V. Sugg, 85—104; Leach v. Jones, 80—404. B. C, c. 45, s. 7. 1848, c. 38, s. 1. (1) UPON DEBTS CONTRACTED PRIOR TO FEBRUARY TWENTY- FIFTH, ONE THOUSAND EIGHT HUNDRED AND SIXi'Y- SEVEN. The wearing apparel, working tools, arms for muster, one wheel and two pairs of cards, one loom, one Bible and testament, one hymn-book, one prayer-book, and aU necessary school books, the property of the defendant, shall be exempt from seizure under execution, and Henson v. Edwards, 10 Ired., 43; Abrams v. Pender, Busb., 260. K. C, c. 45, s. 8, 1844, c. 33. 1840, c. 53. 1848, c. 38, s. 8. In addition to the foregoing articles there shall be, in favor of every housekeeper complying with this chapter, exempt from execution on debts contracted since the first day of July, one thousand eight hundred and forty -five, and prior to February twenty-fifth daj"-, one thousand eight hundred and sixty-seven, the following property, 19C CODE OF CIM:L PROCEDURE. [Chap. 10. provided the same shall have been set apart before seizure, to wit: one cow and calf, ten bushels of corn or wheat, fifty pounds of bacon, beef, or pork, or one barrel of fisli, all necessary farming tools for one laborer, one bed, bed- stead, and covering for every two members of the family, and such other property as the freeholders appointed for that purpose may deem necessary for the comfort and sup- port of such debtor's family; such other property not to exceed in value the sum of fifty dollars at cash valuation: Provided, that this section shall not be extended to any person, against whom judgment is obtained and execu- tion awarded for liability incurred for failure or neglect to work on the public roads, or to muster-, or pay his poll tax. Ballard v. Waller, 7 Jon., 84; Massey v. WaiTen, 7 Jon., 143; Lloyd v. Durham, Vvinst., 288; Weaver v. Parker, 1 Phil., 479; Carlton v. Walts, 83 —212; Grant v. Hughes, 82—216. 1866-'7, c. 61, s. 7. 1879, c. 256, s. 1. (2) DEBTS CONTRACTED SINCE FEBRUARY TWENTY-FIFTH, ONE THOUSAND EIGHT HUNDRED AND SIXTY SEVEN, AND PRIOR TO APRIL TWENTY- FOURTH, ONE THOUSAND EIGHT HUNDRED AND SIXTY-EIGHT. The wearing apparel, working tools, arms for muster, one wheel and two pair of cards, one loom, one Bible and testament, one hyinn-book, one prayer-book, and all necessary school books, the property of the defendant, shall be exempt from seizui'e under execution. And the following property of each head of a family or house- keeper shall be exempt from execution except for taxes: All necessary farming and mechanical tools, one work horse, one yoke of oxen, one cart or wagon, one milch cow and calf, fifteen head of hogs, five hundred pounds of pork or bacon, fifty bushels of corn, twenty bushels of wheat or rice, household and kitchen furniture not to exceed in value two hundred dollars, the libraries of licensed attorneys at law, practicing physicians and ministers of the gospel, and the instruments of surgeons and dentists used in their professions: Provided, that the value of the personal property exemptions shall not ex- ceed five hundred dollars. Carlton v. Watts, 82—212; Graut v. nnjslies, 82—210. I Chap. 10.] CODE OF CIVIL PEOCEDUKE. 197 (3) UPON I.EBTS CONTRACTED AND CAUSES OF ACTIONS AC- ^^ CRUED SINCE APRIL THE TWENTY-FOURTH, ONE THOU" sISd EIGHT HUNDRED AND SIXTY-EIGHT, AND PRIOR TO MAY FIRST, ONE THOUSAND EIGHT HUNDRED ANT) SEVENTY-SEVEN. The property, real and personal, as set forth in article ten of the constitution of the state. Hill V Kessler, 63-437; McKeithan v. Terry. 64-25; Horton v. McCall, 66-159;' Ladd v. Adanas, 66-164; Johnson v. Cross, 66-167; Walls v. Lee-elt 66-197; Dellinger v. Tweed, 66-206; Burnes v. Hams 67-140. Martin V. Hughes. 67-293; Barrett v. Richardson, 76-429; Adnau v. Shaw 82-474; Watkins v. Overby, 83-165; Simpson v. Wallace, 83-447. Lamb V. Chamness. 84-379; Smith v. High, 85-93; ^vche v^Wyche. 85-96; Foxv. Cline, 85-173; McDonald v. DicUson, 85-248; Cotton v. McClenahan, 85-254; Grant v. Edwards, 86-513; '^-'l';- E1--ds^ 8 -JJ^ Murchison v. Plvler, 87-79; Cummings v. Bloodworth. 87-83, Burton v. Spiers, 87-87; Wilson v. Patten, 87-318; Butler v. Stamback, 8—U6. 1876-'7, c. 353, s. 1. m UPON DEBTS CONTRACTED OR CAUSES OF ACTION AC" CRUING SINCE MAY FIRST, ONE THOUSAND EIGHT HUN- DRED AND SEVENTY-SEVEN. The property, real and personal, specifiedin subdivision three of this section, and the homestead of any resident of this state shall not be subject to the hen of any .ludg- ment or decree of any court, or to sale under execution or other process thereon, except such as may be rendered or Lsued'^to secure the payment of obligations coutraced for the purchase of the said real estate, or for laborers or mechanics' liens, for work done and performed for the claimant of said homestead, or for lawful taxes. Whitaker v. Elliott, 73-186 ; Brodie v. Balchelor, 75-J.l; Bank v. Green 78-247; Gamble v. Watterson, 83-573; Smith v. High, 85-93; McDonald v. Dickson, 85-248; Gregory v. Ellis, 86-579; Cummmgs v Bloodworth, 87-83; Wharton vs. Taylor, to appear in 88 JN. O. K. Sec. 502. Sheriff to summou appraisers. 1868-'9, c. 137, Before levying upon the real estate of any resident of tWs statJ, who is entitled to a homestead under Sis chapter, and the constitution of this state article ten, the^heriff or other officer charged w^th such levy, shall summon three discreet persons q^hfied to act as lurors, to whom he shall administer the folio mug oath- "I A B., do solemnly swear (or athrm) tliat i have no interest, near or remote, in the homestead ex- emption of C. D.; and that I will faithfuUy perform the 198 CODE OF CIVIL PROCEDURE. [Chap. 10. duties of appraiser (or assessor, as the case may be), in valuing and laying off the same. So help me, God." Lute V. Reilly, 65—20; Coble v. '1 hom., 73—131 ; Whitaker v. Elliott, 73 —186; Chambers v. Penland, 74^-340; Lambert v. Kinnery, 74—348; Little- john V. Eserton, 77—379; Grant v. Edwards, 86—513; Burton v. Spiers, 87—87. Sec. 503. Duty of appraisers. 1868-'9, c. 137, s. 3. The said appraisers shall thereupon proceed to value the homestead, with its dwelling and buildings thereon, and lay off to said owner such portion as he may select, or to any agent, attorney, or other person in his behalf, not exceeding in value one thousand dollars, and to fix and describe the same by metes and bounds. Lambert v. Kinnery, 74—348; Hoskins v. Wall, 77—249; Littlejohn v. Egerton, 77—379. Sec. 504. Appraisers to make return. 1868-'9, c. 137, s. 4. They shall then make and sign in the presence of the officer a return of their proceedings, setting forth the property exempted, which shall be returned by the officer to the clei'k of the court for the county in which the homestead is situated and filed with the judgment roll in the action, and a minute of the same entered on the judgment docket, and a certified copy thereof under the hand of the clerk shall be registered in the office of the register of deeds for the county, and in all judicial pro- ceedings the original return or a certified copy thereof may be read in evidence. Burton v. Spiers, 87—87. Sec. 505. Levy to be made on the excess. 1868-'9, c. 137, s. 5. The levy may be made upon the excess of the home- stead, not laid off according this chapter, and the officer shall make substantially the follovving return upon the execution: "'A. B., C. D., and E. F., summoned and qualified as appraisers or assessors, (as the case may be,) who set off to X. Y., the homestead exempt by law. Levy made upon the excess." Scott v. WaUon, 67—109; Andrews v. Pritchett, 73—135; Edwards v. Kenrsey, 74—341; Lambert v. Kinnery, 74—348; Waters v. Slubbs, 75—28; Brodie v. Batchelor. 75 — 51; Burton v. Spiers, 87 — 87. Chap. 10.] CODE OF CIVIL PROCEDURE. 199 Sec. 506. No election; appraisers to elect. 1868-'9, c. 137, s. 6. , • i In case no election is made by the owner Ins agent, attorney, or any one acting in his behalf, of the horae- stead.to be laid off as exempt, the appraisers shall make such election for him, including always the dwellmg and buildings used therewith. Burton v. Spiers, 87—87. Sec 507. Personal property, how appraised; how return to be made. 1808-'9, c. 137, ss. 12, 13. Whenever the personal property of any resident ot this state stiall be levied upon by virtue of any execution or other final process issued for the collection of any debt and the ow'ner or anv agent, or attorney in his behal shall demand that the same, or any part thereof, shall be exempt from sale under such execution, the sheriff or other officer making such levy, shall summon hree ap- praisers, as heretofore provided, who having been first duly sworn, shall appraise and lay off to the judgment debtor such articles of personal property as he, or another in his behalf, may select, and to which he may be en- titled under this chapter and the constitution of the state in no case to exceed in value five hundred dollars, which articles shall be exempt from said levy, and return there- of shall be made by the appraisers, as upon the laying oil of a homestead exemption. Dcllin-er v T^veed, 66-206; Duval v. Rollins, 68-220; Frost v. Naylor, 68-3-^5 "smith v. Hunt, 08-482; Slate v. Carr. 71-106; Duvall v. Rollins, 71-218; Curlee v. Thomas, 74-51 ; Com'rs v. Riley. 75-144; Cai'lton v. Watts, 82—212; Grant v. Uuglics, 82—210. Sec. 508. Appraisers to take an oath; fees of. 1868-'9, c. 137,s. 14. The persons summoned to appraise the personal property exemption shall take the same oath and be entitled to the sime fees as the appraisers of the homestead, and when both exemptions are claimed by the judgment debtor at the came time, one board of appraisers shall lay off both and be entitled to but one fee. Sec. 509. Tracts not contiguous may he included in home- stead. 18«8-'9,c. 137,s. 15. Different tracts or parcels of land not contiguous may be included in the same homestead, when a homeste_ad ot contiguous lands is not of the value of one thousand dol- Martin v. Hughes, 67-293; Mayho v. Gotten, 69-339. 200 CODE OF CmL PROCEDURE. [Chap. ]0. Sec. 610. Costs, how taxed and by whom paid. 1868-'9, c. 137, s. 16. The costs and expenses of appraising and laying off the homestead or personal property exemptions, when the same is made under execution, shall be charged and in- cluded in the officer's bill of fees upon such execution or other final process; and when made upon the petition of the owner, they shall be paid by such owner, and the lat- ter costs shall be a lien on said homestead. Sec. 511. Homestead and personal property exemption may be set off' upon petition. 186S-'9, c. 137, s. 7. Whenever any resident of this state may desire to take the benefit of the homestead and personal property ex- emption as guaranteed by article ten of the constitution of this state, or by this chapter, such resident, his agent or attorney, shall apply to any justice of the peace of the county in which he resides, and said justice of the peace shall appoint as assessors, three disinterested persons, qualified to act as jurors residing in said county, who shall, on notice by order of said justice, meet at the ap- plicant's residence, and, after taking the oath prescribed for appraisers before some officer authorized to adminis- ter an oath, lay off and allot to the applicant a homestead with metes and bounds, according to the applicant's di- rection, not to exceed one thousand dollars in value, and make and sign a descriptive account of the same and re- turn it to the office of the register of deeds. Lute V. Reilly, 65—20; Taylor v. Rliyne, 65—530; Vannoy v. Haymore, 71—128; McAfee v, Bettis, 72—28; Bruce v. Strickland. 81—267: Murchison V. Phyler. 87—79; Burton v. Spiers, 87—87. Sec. 512. Assessors to set apart personal property, and return the same to register of deeds. 1868-'9, c. 137, s. 8. Said assessors shall set apart of the personal property of said applicant, to be by him selected, articles of per- sonalty to which he may be entitled under this chapter, not exceeding in value the sum of five hundred dollars, and make and sign a descriptive list thereof, and return the same to the register of deeds. Sec. 513. Register to indorse on return the date, and reg- ister the same. 1868-'0, c. 137, s. 9. It shall be the duty of the register of deeds to indorse on each of said returns the date when received for regis- tration, and to cause the same to be registered without Chap. 10.1 CODE OF CIVIL PROCEDURE. 201 unnecessary delay. The said register shall receive for reg- istering the said returns the same fees that may be allowed him by law for other similar or equivalent services, which fees shall be paid by said resident applicant, his agent or attorney, upon the reception of said returns by the reg- ister. Sec. 514. When persons die, homestead not set apart, who may have the same set apart. 1868-'9, c. 237, s. 10. . J. If any person entitled to a homestead exemption, die without having had the same set apart, his widow, if he leave no children, or his child or children under the age of twenty-one years, if he leave such, may proceed to have said homestead exemption laid off according to sections five hundred and eleven and five hundred and twelve. Johnson V. Cross, 66-167; Wsitts v. Leggett, 66-197; Hager v. Nixon, 69—108: Allen v. Shields, 72—504; Wharton v. Leggett, 80—169; Simpson V. Wallace, 83—477; Gregory v. Ellis, 86—579. Sec. 515. How petition is to he filed and advertisement made. 186S-'9, c. 137, s. 11. When any person entitled to a homestead and personal property exemption shall file his or her petition before a lustice of the peace to have the same laid off and set apart under the four preceding sections, the said justice shall make advertisement in some newspaper pub- lished in the county, if there be one, for six successive weeks and if there be no newspaper in the county, then at the 'court house door of the county in which the peti- tion is filed, notifying all creditors of said apphcant of the time and place, when and Avhere the said petition will be heard; and the same shall not be heard nor any decree made in the cause in less than six months nor more than twelve months, from the dayof making advertisement as above required. Sec. 516. lilahilifcy of officer making levy, refusing or neglecting to lay off homestead. 1868-'9, c. 137, s. 17. , , Any officer making a levy, who shall refuse or neglect to summon and quaUfy appraisers as heretofore provided, or who shall fail to make due return of their proceed- ings or who shall levy upon the homestead set off by said 'appraisers or assessors, (as the case may be,) except as herem provided, shall be liable to indictment for a mis- 202 CODE OF CIVIL PEOCEDUEE. [Chap. 10. demeanor, and he and his sureties shall be liable to the owner of said homestead for all costs and damages in a civil action. State V. Carr, 71—106; Lambert v. Kinnery, 74—348; Richardson v. Wicker, 80—173. Sec. 517. Liability of officer, appraiser or assessor con- spiring- with debtor. 180S-'9, c. 137. s. 18. Any officer, appraiser or assessor, (as the case may be,) who shall wilfully or corruptly conspire with any judg- ment debtor or other appraiser or assessor, (as the case may be,) to undervalue the homestead or personal prop- erty exemption of such debtor, or shall assign false metes and bounds, or make or procure to be made a false and fraudulent veturn thereof, shall be liable to indict- ment for a misdemeanor, and shall be answerable to the judgment creditor for all costs and damages in a civil ac- tion. Sec. 518. Liability of officer, appraiser or assessor con- spiring with creditor. 1808-'9, c. 137, s. 19. Any officer, appraiser or assessor who shall wilfully or corruptly conspire with any judgment creditor, or other appraiser or assessor, to overvalue the homestead or per- sonal property exemption of any debtor or applicant, or shall assign false metes and boundaries, or make, or pro- cure to be made, false and fraudulent return thereof, shall be liable to indictment for a misdemeanor, and shall be answerable to the party injured for all costs and damages in a civil action. Sec. 519. Judgment creditor dissatisfied, how to proceed. 1883, c. 357, s. 1. If the judgment creditor for whom levy is made, or judgment debtor or other person entitled to homestead and peisonal property exemption, shall be dissatisfied with the valuation and allotment of the appraisers or assessors, (as the case may be), he, within ten days thereafter, or any other creditor, within six months, and before sale under execution of the excess, may notify the adverse party and the sheriff having the execution in hand, and file with the clerk of the superior court of the county where the said allotment shall he made a transcript of the return of the appraisers or assessors, (as the case may be), which they or the sheriff shall allow to be made upon demand, together with his objections in writing to said retui-n; and thereupon the said clerk shall I Chap. 10.] CODE OF CIVIL PROCEDURE. 203 put the same on the civil issue docket of said superior court, for trial at the nest term thereof as other civil actions, and such issue ioined shall have precedence over all other issues at such term. And the sheriff shall not sell the excess until after the determination of said action. Sec. 520. Wlien exemption made or allotted on petition; objection thereto, bow to be made. When the homestead or personal property exemption is made or allotted on the petition of the person entitled thereto, any creditor may, within six months from the time of said assessment or appraisal, and upon ten days' notice to the petitioner, file his objections with the regis- ter of deeds of the county in which the premises are situated, and the register of deeds shall return the same to the clerk of the superior court of said county, who shall place the same on the civil issue docket, and the same shall be tried as provided in the preceding section for homestead and personal property exemptions set off under execution. Sec. 521. Costs of re-assessment, how paid. If the superior court at term shall confirm the ap- praisal or assessment, or shall increase the exemption allowed the debtor or claimant, the levy shall stand only upon the excess remahiing, and the creditor shall pay all the costs of the proceeding in court. If the amount allowed the debtor or claimant shall be reduced, the costs of the proceeding in court shall be paid by the debtor or claimant, and the levy shall cover the excess then re- maining. Sec. 522. Undertaking of objector. The creditor, debtor, or claimant objecting to the allot- ment made by the appraisers or assessors (as the case may be) under execution or petition, shall file with the clerk of the superior court an undertaking in the sum of one hundred dollars for the payment to the adverse party, of such costs as shall be adjudged against him. Sec. 523. Appraisal or assessment may be set aside, for what. Any appraisal or allotment by appraisers or assessors, hereinbefore provided, may be set aside for fraud, com- phcity or other irregularity; but whenever any allotment or assessment shall be made or confirmed by the superior 204 CODE OF CIVIL PROCEDURE. [Chap. 10. court at term time, as hereinbefore provided, the said homestead shall not thereafter be set aside or again laid off by any other creditor. Sec. 524. Keturn to be registered— forms. When the homestead and personal property exemption shall be decided by the court at term time, the clerk of the superior court shall immediately file with the register of deeds of the county a copy of tl:e same, which copy shall be registered as deeds are now registered by law; and in all judicial proceedings the original or a certified copy of said return may be introduced in evidence. The following forms shall be substantially followed in proceedings under this chapter: [No. 1.] Appraisers' Return. i. when the homestead is valued at less than one thousand dollars, and personal property also appraised. The undersigned having been duly summoned and sworn to act as ap- praisers of tlie homestead and personal property exemption of A. B., of Township Counly, by C. D. , sheriff (or consta- ble or deputy,) of said county, do hereby mulie the following return: We have viewed and appraised the homestead'of the said A. B., and thedwelllnsrs and buildings thereon, owned and occupied by said A. B. as a homestead, to be one thousand dollars (or any less sum) and that Ihe entire tract! bounded by the lands of and is therefore ex- empted from sale under execution according to law. At the same time and place we viewed and appraised at the values annexed, the following arti- cles of personal property, selected l)y said A. B., (here specify the articles and their value, to beseleetedbji the debtor or his agent,) wliich we dechire to be a fair valuation, and that the said articles are exempt under said execu- tion. We hereby certify that we are not related by blood or marriage to the judgment debtor or the judgment creditor in this execution, and have no interest, near or remote, in the above exemptions. Given under our hands and seals, this day of 18 O. K , (i'k) L. M , (L. 8.) R. S (£, S.) The above return was made and subscribed in my presence, day and date above given. CD (Sheriff or Constable.) Chap. 10.] CODE OF CIVIL PEOCEDUEE. 205 [No. 2.] n PETITION FOR HOMESTEAD BEFOEE A JUSTICE OF THE PEACE. Before J- ^• In the matter of A. B. V County. "a B respectfully shows that he (she or they, as the case may be,) is (or ar^ entitled to a homeslead exempt from execution in certam real estate m safd county and bounded and described as follows: {Here describe the prop- eftv rThe'tme value of which he (she or they, as the case may Je.) believes to be one thousand dollars, including the dwelling and buildings thereon. He (she'" hey) further shows that he (she or they as the case may be. Us to- •re\ entitled to a personal property exemption from execution, to the Z\Z of Tre Stat the value) cLsLins of the following property: {Here sve^^fv) He (she or they, as the case may be.) therefore prays your worship to appoint three disinterested persons qualified to act as jurors, as assessors to vLw the premises, allot and set apart to your petitioner his homestead and personal properly exemption, and report according to law. [No. 3.] m FORM FOR APPRAISAL OF PERSONAL PROPERTY EXEMPTION. The undersisrned having been duly summoned and sworn to act as ap- Tiraisers of the personal property of A. B., of Township,. . . ... ... bounty and to lay off the exemption given by law thereto by C. D {iS or other officer,) of B-Mcouniy. do hereby make and subscribe the ^°Wri'ifwcd''and appraised at the values annexed the following articles of personal property selected by the said A.^ B.. to wit^.^ .^.^ .^. ^^^^. .^.^. -^ aYairvaiuation''and"that said 'articles are exempt under said execution We hereby certify, each for himself, that we are not related by blood or mSe to the iudgment debtor or judgment creditor in this execution, and have no interest, near or remote, in the above exemptions. Given under our hands and seals, this day ot. . . .^. . . ., ro. . . .^ i:.M.'.'.'.'.'.'.{L.S.) R. S {L.S.) The above return was made and subscribed in my presence, day and date above given. ^^ (Sheriff or Constable.) [No. 4.] IV CERTIFICATE OF QUALIFICATION TO BE INDORSED ON RETURN BY SHERIFF. The within named B. F., G. H. and J. R. were summoned and qualified according ,0 law, as appraisers of the ..... . . exemption of the said A. B., under an execution in favor of X. Y ., this u,i\ oi 18-'" C. D (Sheriff.) 206 CODE OF CIVIL PROCEDURE. [Chap. 10. [No. 5.] V. SHNUTE ON EXECUTION DOCKET. } Execution issued , 18.. Homestead appraised and set off and return made , 18. TITLE XII. OF THE COSTS IN CIVIL ACTIONS. Section. 525. "When allowed of course to the plaintiff ; several actions on one instrument. 626. Wben allowed to defendant. 527. When allowed to either party in the discretion of the court. 538. 'What costs allowed. 529. Interest, when allowed. 530. Interest on contracts, except penal bonds, and on all judg- ments; jury to distinguish principal from interest. 631. In judgments fjual by default, interest ascertained by clerk. 532. Costs, how to be inserted in judgment; interlocutory costs adjusted. 633. Referee's fees. 534. Costs against infant plaintiff. 635. Costs in action by or against an Section. executor or administrator, trus- tee of an express trust, or person expressly authorized by statute to sue. 536. Costs in civil actions by the state. 537. Costs in action by the state for a private person. 538. Costs in appeals by state to the Supreme Court of the United States. 539. Costs against assignee after ac- tion brought. 540. Costs on appeals generally. 541. Costs in special proceedings. 542. Costs on appeals from justices of the peace. 543. Judnmeut for costs against plaintiff and sureties on failure to maintain action. Sec. 525. When allowed of course to the plaintlflF; several actions on one instrument. C. C. P., s. 276. Costs shall be allowed of course to the plaintiff, upon a recovery, in the following cases: (1) In an action for the recovery of real property, or when a claim of title to real property arises on the plead- ings, or is certified by the court to have come in question at the trial; I Chap. 10.] CODE OF CIVIL PROCEDURE. 207 (2) In an action to recover the possession of personal ^TaTin^ actions of which a coui-t of a justice of the peace has no jurisdiction; bona;recORniza,>ce, pvom.|,wy note b,n^o^^ SI sfl"S r sec?:terr4e 'ootrncl'^nt 0. t.e previous aotion or ac"OT5. ,,„„„ , Porter v. Durham, 79-596; Vestal v. Sloan, 83-5o5, il. u., c Hartman v. Spiers, 87—28. Sec 526. When aUowed to defendant. C.C. P., s- 377. plaintiff be entitled to costs therein. Swain V. McCuUock, 75-195; Wall v. Covington, <6-150. Sec 537. When allowed to either party in the discretion i:X;r;;;ns:c'o'sS' mfy't; aHowed or not, in the A- .^illn nfihe court In all actions where there are srveSdefldaStsTot united in i-terest and rnaknig separate defences by separate answers ^J^^ ^l^^^^^^^^^*^^ is^-ts^^^^^aSr^ou^----^-- tion of the court: a^..^a. (1^ When a new trial shall be ordered, _ (2) When a judgment shaU be affirmed in part, and ' Mu":? !^Sison. 63-643; Sed.erry v. Con.'rs, 66-486, Jones v Mial, 85—597. 208 CODE OF CIVIL PEOCEDUEE. [Chap 10. Sec. 538. What costs allowed. C. C. P., s. 379. To either party for whom judgment shall be given there shall be allowed as costs his actual disbursements for fees to the officers, witnesses, and other persons enti- tled to receive the same. Sec. 539. luterest, wlieu allowed. C. C. P., s. 383. When the judgment is for the recovery of money, in- terest from the time of the verdict or report until judg- ment be finally entered shall be computed by the clerk and added to the costs of the party entitled thereto. Sec. 530. Interest on contracts, except penal bonds, and on all Judgments ; .jury to distingiiisli principal from in- terest. K. C, c. 31, s. 90. 1786, c. 353, s. 1. 1789, c. 314, s. 4. 1807, c. 731. AH sums of money due by contract of any kind what- soever, excepting money due on penal bonds, shall bear interest, and when a jmy shall render a verdict therefor they shall distinguish ithe principal from the sum allowed as interest; and the principal sum due on all such con- tracts shall bear interest from the time of rendering judgment thereon until it be paid and satisfied. In like manner, the amount of any judgment or decree, except the costs, rendered or adjudged in any kind of action, though not on contract, shall bear interest till paid, and the judgment and deci'ee of the court shall be rendered accoi'ding to this section. Deloach v. Worke, 3 Hawks, 3G. Trice v. Turrentine, 13 Irod., 212; Hall V. Ciaige, 68— oOu; Barlow v. Nurflect, 72 — 535; Farmer v. Willard, 75 — 401; Wall V. Covington, 83 — 144; Long v. Long, 85 — 415; Patapsco v. Magee, 86—350; Jolly v. Bryan, 86—457; McRae v. Malloy, 87—196. Sec. 531. In judgments final by default, interest ascer- tained by clerk. K. C, c. 31, s. 91. 1797, c. 475, s. 1. Whenever a suit shall he instituted on a single bond, a covenant for the payment of money, bill of exchange. ■ promissory note, or a signed account, and the defendant shall not plead to issue thereon, upon judgment, the clerk of the court shall ascertain the interest due by law, with- out a wi'it of inquiry, and the amount shall be included in the final judgment of the court as damages, which judgment shall be rendered therein in the manner pre- scribed by the preceding section. Hartsfield v. Jones, 4 Jon., S09; GrifBn v. Hinson, 6 Jon., 154; Moore v. Mitchell, Phil., 304; Parker v. Smith, 64^291; Rogers v. Moore, 80—85. I Chap. 10.] CODE OF CIVIL PROCEDUEE. '209 Sec. 532. Costs, how to be inserted in judgment; inter- locutory costs adjusted. C. C. P., s. 283. 1 869-' 70. c. 192. The clerk shall insert in the entry of judgment the sum of the allowances for cost, as provided in this code, the necessary disbursements, including the fees of officers allowed by law, the fees of witnesses, the reasonable compensation of commissioners in taking depositions, the fees of referees. The disbursements shall be stated in detail Whenever it shall be necessary to adjust costs in any interlocutory proceedings, or in any special proceed- in4 the same shall be adjusted by the clerk of the court to which the proceedings were returned, except m those matters in which the aUowance is required and to be made by the judge. Sec. 533. Referee's fees. C. C. P., s. 285. The fees of a referee shall be fixed by the court or judge, unless the parties themselves shall agree upon a rate of compensation. Wall V. Covington, 76 — 150. Sec. 534. Costs against infant plaintiff. C. C. P., s. 286. When costs are adjudged against an infant plaintiff, the guardian by whom he appeared in the action shall be responsible therefor. Sec. 535. Costs in action toy or against an executor or ad- ministrator, trustee of an express trust, or a person ex- pressly authorized toy statute to sue. C. C. P., s. 287. (1) In an action prosecuted or defended by an execu- tor, administrator, trustee of an express trust, or a per- son expressly authorized by statute, costs shall be recov- ered as in an action by and against a person prosecuting or defending in his own right; but such costs shall be chargeable only upon or collected out of the estate, fund or party represented, unless the court shall direct the same to be paid by the plaintiff or defendant, person- ally, for mismanagement or bad faith in such action or defence. Lewis V. Johnston, 67—38; Lewis v. Johnston, 69—393; Wall v. Coving- ton, 76—150; Hewlett V. Nutt, 79—263. (2) And whenever any claim against a deceased person shall be referred, the prevailing party shall be entitled to recover the fees of referees and witnesses, and other nec- essary disbursements, to be taxed according to law. Wall V. Covington, 76—150; sections 276, 277, 343, C. C. P. 210 CODE OF CIVIL PEOCEDURE. [Chap. 10. Sec. 536, Costs in civil actions by the State. C. C. P.. s. 288. In all civil actions prosecuted in the name of the state, by an officer duly authorized for that purpose, the state shall be liable for costs in the same cases and to the same extent as private parties. If a private person be joined with the state as plaintiff, he shall be liable in the first instance for the defendant's costs, which shall not be i-e- covered of the state tiU after execution issued therefor against such private party and returned unsatisfied. State V. R. R. Co., 74—287. Sec. 537. Costs in action by the State for a private person. c. c. P., s. aso. In an action prosecuted in the name of the state for the recovery of money or property, or to establish a right or claim for the benefit of any county, city, town, village corporation or person, costs awarded against the plain- tiff shall be a charge against the party for whose benefit the action was prosecuted, and not against the state. Sec. 538. Costs in appeals by State to the Supreme Court of the United States. C. C. P., s. 289 (a) 1871-'2, c. 20, s. 1. In all cases, whether civil or criminal, to which the state of North Carolina is a party, and which may be cariied from the courts of this state, or from the circuit court of the United States, by appeal or writ of error to the supreme court of the United States, and the state shall be adjudged to pay the costs, it shall be the duty of the attorney general to certify the amount of such costs to the governor, who shall thereupon issue a warrant for the same, directed to the state treasurer, who shall pay the same out of any moneys in the treasury not other- wise appropriated. Sec. 539. Costs against assignee after action broueht. C. C. P., s. 290. In actions in which the cause of action shall become by assignment after the commencement of the action, or in any other manner, the property of a person not a party to the action, such person shall be liable for the costs in the same manner as if he were a party. Sec. 540. Costs on appeals generally. C. C. P., s. 292. On an appeal from a justice of the peace to a superior court, or from a superior court or a judge thereof, to the Chap. 10.] CODE OF CIVIL PROCEDURE. 211 supreme court, if the appellant shall recover judgment in the appellate court, he shall recover the costs of the appellate court and those he ought to have recovered below, had the judgment of that court been correct, and also restitution of any costs of the court appealed from which he shall have paid under the erroneous judg- ment of such court. If in any court of appeal there shall be judgment for a new trial, or for a new jury, or if the judgment appealed from be not wholly reversed, but partly "affirmed and partly disaffirmed, the costs shaE be in the discretion of the appellate court. Sec. 541. Costs in special proceedings. C. C. P., s. 294. The costs in special proceedings shall be as herein al- lowed in civil actions, unless where otherwise specially provided. Noble V Koonce, 76 — i05; Mayo v. Jones, 78 — i06. Sec. 543. On appeals from justices of the peace. C. C. P., s. 295. Aftei- an appeal from the judgment of a justice of the peace shall be filed with a clerk of a superior court, the costs in all subsequent stages shall be as herein pro- vided for actions originally brought to the superior court. Smith V. R. R. Co., 73—63. Sec. 543. Judgment for costs against plaintiff and sure- ties on failure to maintain action. 11. C, c. 31, s. 126. 1831, c. 46, ss. 1, 2. Whenever an action shall be brought in any court in which security shall be given for the prosecution thereof, or when any case shall be brought up to a court by an appeal or otherwise, in which security for the prosecution of the suit shall have been given, and judgment sliall be rendered against the plaintiff for the costs of the defend- ant, the appellate court, upon motion of the defendant, shall also give judgment against the surety for said costs, and execution may issue jointly against the plain- tiff and his surety. 212 CODE OF CIVIL PROCEDURE. [Chap. 10. TITLE Xin. OF APPEAL IN CIYIL ACTIONS. Section. 544. "Writs of error abolished and ap- peals substituted. 545. Writs of certiorari, recordan and supersedeas. 546. Orders made out of court, how vacated or modified. 547. Who may appeal. 548. Appeal, in what cases may be talcen. 549. When taken, execution not sus- pended, when. 550. Appeals to be entered by clerk on judgment docket; case, how stated and settled. 551. Clerk to make copy of judg- ment roll, and send to clerk of supreme court. 552. On appeal security must be given or deposit made, unless waived. 553. Appeal in forma pauperis. 554. On judgment for money, secu- rity to stay execution; new undertaking, on sureties be- coming insolvent; perishal)le property may be sold. 555. If judgment be to deliver docu- ment, or personal property, it must be deposited or security be given. 556. If to execute conveyance, it must be executed aud depos- ited. Section. 557. Security where judgment is to deliver real property, or for a sale of mortgaged premises. 558. Staj' of proceedings upon sccu- rit)- being given. 559. Undertaking may be in one in- strument or several. 560. Sureties to justify, or undertak- ing of no effect. 561. Undertaking must be filed with clerk. 562. Intermediate orders aflecting the judgment may be reviewed on appeal. 503. Judgment on appeal; restitu- tion; undertakings on appeals and writs of certiorari, 504. On appeal, or rtcordan of de- fendant from justice's judg- ment, court may compel plain- tiff to secure costs. 565. Appeals from a justice to be tried at first term of court; judgment against party cast and his sureties; how to have amount of judgment ascer- tained in case of default. 566. If plaintiff appeal and do not recover a greater sum, he shall not recover costs, but be liable to pay. Sec. 544. Writs of error abolislied, and appeals substitu- ted. C. C. P.. s. 396. Writs of error in civil actions are abolished; and the only mode of reviewing a judgment, or order, in a civil action, shall be that prescribed by this title. Teaguc v. James, 63 — 91 ; State v. Swcpson, 82 — 541. Chap. 10.] CODE OF CIVIL PROCEDURE. 21S Sec. 545. Writs of certiorari, recordari, and supersede as. 1874-'5, c. 109. Writs of certiorari, recordari and supersedeas axe hereby authorized as heretofore in use. The writs ot certiJrari and recordari, when used ^s sutetot^^^^^^ appeal, may issue when ordered upon the appl'^^^\^;^^j'° a written undertaking for the costs only; ^u the s je - sed'as to suspend execution, shall not issue until an un- dertaking is filed, or a deposit made to secure the jdr ment sought to be vacated, as m cases of appeal wheie the execution is stayed. p.,H-Pr v Syme v. Brought.,n. 84-114; Brown v. Wilhams 84-116; Parker ^ . Railroad, 84-118; Brysou v. Lucas, 83-397; Chastam v Chastain, 87- 283; McDaniel v. PoUac, 87-503; State y. Bandall, 8<-5a. 6erUorari, Bat. Dig., vol. 1, p. 208 et se,.; vol. 3, p. 26; vol. 4, p. 64, Bailcy'sDig., p. 61; State V.Lawrence, 81-523. BecorcUiri, Bat. Dig., vol. 2, p. 1040 et acq.; Bailey s Dig., p. 4o6 Sec. 546. Orders made out of court, how vacated or modified. C. C. P., s. 397. . , , , ■, An order made out of court, without notice to tlie ad- verse party, may be vacated or modified, without notice, by the judge who made it, or may be vacated or raodi- fild on notice, in the manner in which other motions are ™ Sledge V. Blum. 63-374; Bank v. Jenkins, 64-719; Clayton v. Jones, 68-497 Mitchell v. Sloan, 69-10; Gray v. Gaither. 71-55; State v. Haw ki^ 70^180; Stale v. Patrick, 72-217; Blue v. Blue, 79-69; Capel v. Peebles, 80—90; State v. Spurtin, 80—862. Sec. 547. Who may appeal. C. C. P., s. 298. Any party aggrieved may appeal in the cases prescribed in this title. „„ ^„, „ ... ^ Rush V. Steamboat Co., 67-47; Clemmonsv. Hampton, < 0-034; Rollins V. Rollins, 76—264; Johnson v. Maxwell, 87—18. Sec. 548. Appeal, in what cases it may be taken. C. C. P., s 299 An appeal may be taken from every judicial order or determination of a judge of a superior court upon oi in volving a matter of law or legal inference whethtT made L or out of term, which affects a substantial rig^it claimed in any action or proceeding; or which m eftect detemrines the action, and prevents a ]udgment froni which an appeal might be taken;. or discontmues the action, or grants or refuses a new trial. State V. Bullock. 63-570; Smith v. Mitchell, 63-620; Simonton v. 214 CODE OF CIVIL PEOCEDURE. [Chap. 10. Chipley. 61—153; Carroll v. Haywood, 64-^81; Bank v. Jenkins 04-719- Jenkins v. Ore Dressing Co., G5-56:J; Rusl. v. Steamboat Co' 07^7- Banli V. Tiddy, G7— 109; Skinner v. Maxwell, 67—257; Bryau v. Ileck 07— 333; Vest V. Cooper, 68— 131; .Tohntton v. Neville, 68-177; Childs v ' Mar- tin, 68-307; Fulkner v. Hunt, 68-475; Lovinier v. Pearce, 70— 107- Moore V. Edmiston, 70-471; Gray v. Gaithcr, 71-55; Hinton v. Wliitcburst 71- 66; Mason v. Osgood, 71-212; Watts v. Bell, 71-405; Stale v. Hawkins 73-180; Stale v. Patrick, 73—217; Maxwell v. Caldwell, 72— 150- Wade v New Berne, 73-498; Home v. norne, 73-534; Windburne v. Bryan 73- 47; Bellamy v. Pippin, 74-46; Johnson v. Bell, 74-355; Wallin-ton v Montgomery, 74-872; Hinton v. Deans, 75-18; Rouse v. Quinn 75-351- French v. Wilmington, 75-387; Rollins v. Rollins, 70-264; Perry v. Whit- aker, 77—103; Crawley v. Woodfin, 78— 4; Wake County v. Magiiin 78— 181; Bryde v. Patterson, 78—412; Isler v. Dewey, 79-5; Ashcrolt v.' Lea, 79—34; Biishee v. Surles, 79—51; Sutton v. Schonwald, 80—20- Capel v' Peebles, 80-90; R. R. v. Richardson, 83-343; Gay v. Brookshirc, 83-^09- Wilson V. Lineberger, 82— 413; May v. Dardcn, 83-237; Telegraph Co v' R. R. Co., 83-420; R. R. Co. v. R. R. Co., 83-498; Wilson v. Seaglc 84- 110; Symc V. Broughton, 84—114; Hines v. Hincs, 84—133- Tuliuo-ton v Williams, 84-135; State v. McDowell, 84—798; Sternberger'v. Hawley 85 —141; Moore V. Askew, 85-199; Spaiigh v. Boner, 85-308; Cromariiev Com'rs, 85—311; Moore v. Hill, 85-218; Alexander v. Robinson 85-''75'- Sloan V. McMahon, 85-296; Best v. Clyde, 80-4; Henry v. Cannon 86-^ 24; Lougv. Logan, 86-535; Long v. Gooch. 86-709; Roulhac v. Brown 87—1; Thomas V. Myers, 87—31; Wiggins v. McCoy, 87-499- Leak v' Covington, 87-501; McDaniel v. Pollock, 87-503; Moore v. Hinnant 87 —505; State v. Owens, 87—565. Sec. 549. When taken, execution not suspended, when C. C. P., s. 300. The appeal must be taken from a judgment rendered out of term within ten days after notice thereof and from a judgment rendered in term within ten days after its rendition, but execution shall not be suspended until the giving by the appellant of the undertakings herein- after required. C. C. P.,303-313; Stroat v. Woody, 63-37; Rowland v. Thompson 64- 714; Skinner V, Maxwell, 67-357; Bryan v. Hubbs, 69-^33; Richardson V. Debnam. 75-390; Taylor v. Brower, 78-8; Williamson v. Canal Co 78—156; Meekins v. Talum, 79—546; Applewhite v. Fort, 85—596. Sec. 550. Appeals to be entered by clerk on judgment docket; case, how stated and settled. C. C. P. s 301 C. C. P., s. 311. Within the time prescribed in the preceding section the appellant shall cause his appeal to be entered by the clerk on the judgment docket, and notice thereof to be given to the adverse party. He shall cause to be pre- Chap. 10.] CODE OF CIVIL PEOCEDURE. 215 pared a concise statement of the case embodying the mstructions of the judge as signed by him, it tlieie oe aTexception thereto and the requests of the counsel of the mSes for instructions if there be any exception on account of the granting or withholding thereof, and stat- fng separately in artides numbered, the errors aUeged. A copy of this statement shall be served on the respon- ded within five days from the entry of the appea taken; within three days after such service, the respondent shall return the copy with his approval or specific amendments [nlorsed or attached; if the case be approved by the re- spondent, it shall be filed with the clerk as ^ part of the record- if not returned with objections within the time nrescrihed it shall be deemed approved; if returned with Sbjec ions as prescribed, the appehant shall immediately reouest the judge to fix a time and place for set- ting the case befire him; and the judge shal forthwith notify the attorneys of the parties to appear before hira for that purpose at a. certain time and place, within he iudicial district, which time shall not be mo^e than twenty days from the receipt of such request; and at the tie aU place stated, the judge shall settle and s^g^ the case, and'dehver a copy to the attorney of ^ach paity or if the attorneys be not present, file a copy n the oftce of the clerk of the court: Provided, that if the judge shaU have leff the district before the notice of d.sagi^e- ment he may settle the case without returning to the ^strict In settling the case, the written mstruc ions s^ned by the judgefand the written requests for mstruc- t fens s gned by the counsel, and the written exceptions Sbe^deemed conclusive as to what such "^stmf ^^s requests and exceptions were. If a copy of the case settled was delivered to the appellant, he shall with n five days thereafter, file the same with the clm-k and m case he fails to do so, the respondent may file his copy The judge shall settle the case on appeal within sixty Safter the termination of a special term or after ?hl courts of the district shall have ended, and if the judge in the meantime shall have gone out of office, he &1 settle the case as if he were still m office ami any judge faihng to comply wuh this section shall be liable toa penaltFof five hundred dollars, for the use of any person who M'ill sue for the same. L Kane v. McCarthy, 63-299; Campbell v. Allison. 63-508; Bland v. O'Hagan, 64-471; Cardwcll v. Cardwell, 64-621: Whitesulcs v. Wdl.an^ 66-141; Kirkman v. Disoa. 06-406; Skinner v. Maxwell, 67—5/ Sud- derth y. McCombs, 67-853; Marsh v. Cohen, 68-383; Green v. Castle 216 CODE OF CIVIL PROCEDURE. [Chap. 10. bury, 70—20; Armfield v. Brown, 70—37; Sampson v. R. R. Co., 70—404; Duval V. Rollins, 71—218; Schehan v. Malone, 71—440; Bramble v. Brown, 71—513; Isler v. Haddork, 73—119; Mason v. Osgood. 72—120; Wade v. New Berne, 72 — 498; Adams v. Reeves, 74—106; Wilson v. Hutchinson, 74— 432;Sweyison v. Sumniey, 74—551; Kirk v. Barnliart, 74—653; Brink V. Black, 77— 59; Taylor v. Brower, 78—8; McNeill v. Cliadbourn, 79—149; Meekins v. Tatem, 79—546; Eure v. Paston, 80—17; Smith v. Lyon. 82— 2; Sanders v. Norris, 83 — 4; Slate v. Tlionipson, 8.3—595; Turner v. Foard, 83 — 683; Bryan v. Fisher, 85—71; Howerton v. Henderson. 86 — 718; Surratt V. Crawford, 87— 373; Bost v. Bost, 87—477; McDaniel v. Pollock, 87—503. Sec. 551. Clerk to make copy of judgment roll, and send to clerk ot supreme court. C. C. P., s. 302. The clerk on receiving a copy of the case settled, as required in the preceding section, shall make a copy of the judgment roll and of the case, and within twenty days transmit the same, duly certified to the clerk of the supreme court. Morrison v. Cornelius, 63—346; McLean v. Chisholm, 64 — 323; Skinner V. Maxwell, 67—257; Sudderth v. McCombs, 67—353; Farmer v. Willard, 75—401; Bradley v. Jones, 76—204; Howerton v. Henderson, 86—718. Sec. 552. On appeal security must be given or deposit made, unless waived. C. C. P.,s.303. 1871-'2, c. 31, s. 1. To render an appeal effectual for any purpose in any civil cause or special proceeding, a written under- taking must be executed on the part of the appel- lant, with good and sufficient surety, in such sum as may be ordered by the court, not to exceed the sum of two hundred and fifty dollars, to the effect that the ap- pellant will pay all costs which may be awarded against him on the appeal; or such sum as may be ordered by the court must be deposited wdth the clerk by wiiom the judgment or order was entered, to abide the event of the appeal; such undertaking or deposit may be waived by a written consent on the part of the respondent. Robeson v. Lewis, 04—734; Felton v. Elliott, 66—195; Weber v. Taylor, 66—413; Clerk's Office v. Huffsteller, 67—449; Bledsoe v. Ni.Kon, 69-81; Bryan v. Hubbs, 69—433; State v. Di-xon, 71—204; Mason v. Osgood, 71— 312; Smith v. Railroad Co., 73—63; Martin v. Cliasleen, 75—96; Slate v. Morgan, 77—510; Hancock v. Bramlett, 85—393; Bryson v. Lucas, 85— 397; Smith v. Reeves, 85—594; Mauney v. Gidney, 86—717; Howerton v. Henderson, 86—718; Chastain v. Chastain, 87—283. Sec. 553. Appeal in forma pauperis, 1873-'4, c. 60. When any party to a civil action tried and determined in the superior court shall, at the time of trial, desire an Chap. 10.] CODE OF CIVIL PROCEDURE. 217 appeal from the judgment rendered in said action to the supreme court, and sh«U be unable, by reason of his poverty, to make the deposit or to give the security re- quired by law for said appeal, it shall be the duty of the iudge of said superior court to make an order allowing said party to appeal from said judgment to the supreme court as in other cases of appeal, without giving security therefor: Frovided, that the party desmng to appeal from said judgment shaU make affidavit tliat he is unable by reason of his poverty to give the security required by law for said appeal, and that said party is advised by counsel learned in the law that there is error in mat- ter of law in the decision of the superior court in said action- Provided further, that said affidavit shall be ac- companied by a written statement from a P'acticing attorney of said superior court that he has examined the affiant's case, aud that he is of opinion that the decision of the superior court, in said action, is contrary to law. Mitchell V. Sloan, 69-10; Masou v. Osgood, 71-212; Martin t. Chas- teen 75-96; Lindsay v. Moore, 83-444; Slell v. Barbam, 85-88; Leach V. Jones, 86-404; SteU v. Barham, 8&-737; Hall v. Younts, 87-28o. Sec. 554. On judgment for money, security to stay exe- cution; new untlcrtakiug, on sureties becoming insol- vent; perishable property may be sold. C. C. P., ss. 304,311. If the appeal be from a judgment directing the pay- ment of money, it sliall not stay the execution of the judgment, unless a written undertaking be executed on the part of the appellant, by one or moi-e sureties, to the effect that if the judgment appealed from, or any part thereof, be affirmed, or the appeal be dismissed the ap- pellant will pay the amount directed to be paid by the ludgment, or the part of such amount as to which the judgment shall be affirmed, if it be affirmed only m part and all damages which shall be awarded against the appellant upon the appeal. Whenever it shall be satisfac- torily made to appear to the court that since the execu- tion of the undertaking the sureties have become insol- vent, the court may, by rule or order, require the appel- lant to execute, file and serve a new undertaking, as above- and in case of neglect to execute such undertak- in<^ within twenty days after the service of a copy of the ruTe or order requiring such new undertaking, the appeal may, on motion to the court, be dismissed with costs. Whenever it shall be necessary for a party to any action or proceeding to give a bond or an undertaking, 10 218 CODE OF CIVIL PROCEDURE. [Chap. 10. with surety or sureties, lie may in lieu thereof, deposit with the officer into court as the case may require, money to the amount for which such bond or undertaking is to be given. The court in which such action or proceeding is pending may direct what disposition shall be made ot such money pending the action or proceeding. In any case where, by this section, the money is to be deposited with an officer, a judge of the court, at any time, upon the application of either party, may, before such deposit is made, order it to be deposited in court instead of with such officer; and a deposit made, pursuant to such order, shall be of the same effect as if made with such officer. The perfecting of an appeal by giving the undertaking mentioned in this section, shall stay proceedings in the court below upon the judgment appealed from; except when the sale of perishable property is directed, the court below may order the property to be sold and the proceeds thereof to be deposited or invested, to abide the judg- ment of the appellate court. Clerk's office V. Huffstellcr, 67—449; Co.x: v. Hamilton, 69—30; Bledsoe V. Nixon, 69— 81; Bryan v. Hubbs, 69— 423; Hancock v. Bramlett, 85— 393; Leach v. Jones, 86—404; Burnett v. Nicholson, 86—726. Sec. 555. If judgrment be to cleHver document, or per- sonal property, it must be deposited or security be given. C. C. P.,s. 305. If the judgment appealed from direct the assignment or delivery of documents or personal property, the execu- tion of the judgment shall not be stayed by appeal, unless the things required to be assigned or dehvei'ed be brought into court, or placed in the custody of such officer or re- ceiver as the court shall appoint, or unless an undertaking be entered into on the part of the appellant, by at least two sureties, and in such amount as the court or a judge thereof shall direct, to the effect that the appellant wiU obey the order of the appellate court upon the appeal. Bryan V. Hubbs, 69—423; Hancock v. Bramlett, 85—393. Sec. 556. If to execute conveyance, it must be executed and deposited. C. C. P., s. JJOG. If the judgment appealed from direct the execution of a conveyance or other instrument, the execution of the judgment shall not be stayed by the appeal until the in- strument shall have been executed and deposited with the clerk with whom the judgment is entered, to abide the judgment of the appellate court. Tate V. Powe, 64—644; Bryan v. Hubbs, 69— 423; Hancock v. Bramlett, 85—393. Chap. 10.] CODE OF CIVIL PROCEDURE. 5 10 Sec. 557. Security where judgment is to deliver real prop- erty, or for a sale of mortgaged premises. C. C. P., s. 307. If the judgment appealed from direct the sale or deliv- ery of possession of real property, the execution of the same shall not be staved, unless a written undertakmgbe executed on the part'of the appellant, with one or more sureties, to the effect tliat, during the possession of such property by the appellant, he will not commit, or suffer to be committed, any waste thereon, and that if the judgment be affirmed, he will pay the value of the use and occupation of the property, from the tune of the appeal until the delivery of possession thereof, pursuant to the judgment, not exceeding a sum to be fixed by a judge of the court by which judgment was rendered, and which shall be specified in the undertaking. When the judgment is for the sale of mortgaged premises, and the payment of a deficiency arising upon the sale, the undertaking shall also provide for the payment of such deficiency. Tate V. Powe, 64—644; Cox v. Hamilton, 69—30; Bryan v. Hubbs, 69— 423; Meroney v. "Wright, 84 — 336; Hancock v. Bramlett, 85—393. Sec. 558. Stay of proceedings upon security being given. C. C. P., s. 308. Whenever an appeal is perfected as provided by this code it stays all further proceedings in the court below upo 1 the judgment appealed from, or upon the matter embraced therein; but the court below may proceed upon any other matter included in the action and not affected by the judgment appealed from. And the court below may, in its discretion, dispense with or limit the security required, when the appellant is an executor, adminis- trator, tmstee, or other person acting in another's right; and may also limit such security to an amount not more than fifty thousand dollars, where it would otherwise ex- ceed that sum. C. C. p., sections 304, 305, 306, 307; Bledsoe v. Nixon, 69—81; Johnston V. Rankin,' 70—550; Carlton v. Byers, 71—331; Phifer v. R. R. Co., 73— 433; McRae v. New Hanover Co., 74—415; Hancock v. Bramlett, 85—393; Leach v. .Jones, 86—404. Sec. 559. Undertaking may be in one instrument or sev- eral. C. C. P., s. 309. The undertakings may be in one instrument or several, at the option of the appellant; and a copy, including the names and residences of the sureties, must be served on 220 CODE OF CIVIL PROCEDTJEE. [Chap. 10. the adverse party, with the notice of appeal, unless the required deposit is made, and notice thereof given. C. U. P.. sections 304, 305, 306, 307. Robeson v. Lewis, 64—734; Bryan V. Hubbs, 69—423; Hancoek v. Bramlett, 85—398. Sec. b60. Sureties to justify, or undertaking of no effect. C. C. P., s. 310. An undertaking upon an appeal shall be of no effect unless it be accompanied by the affidavit of one of the sureties that he is worth double the amount specified therem. The respondent may, however, except to the sutficiency of the sureties within ten days after the notice of the appeal; and unless they or other sureties justify within ten days thereafter, the appeal shall be regarded as if no undertaking had been given. The justification shall oe upon a notice of not less than five days. C. C. P., sections 165, 166; Saulsbiiry v. Cohen, 68—289; Bryan v. Hubbs. 69—42!,; Wade v. New Berne, 73—498; Hancock v. Bramlett, 85—393; Bryson r. Lucas, 85—397; Smith v. Reeves, 85— 594; Mauney v. Giduey, 86 — 717; Howerton v. Henderson, 86—718; Chastain v. Chastain, 87—283. Sec. 561. Undertaking must be filed with clerk. C. C. P., s. 312. The undertaking must be filed with the clerk with whom the judgment or order appealed from was entered. This chapter as to the security to be given upon appeals, and as to the stay of pi oceedings, shall apply to all appeals taken to the supreme court. Jacobs V. BurRwyn, 63—196: Bryan v. Hubbs, 69-423. Sec. 562. Intermediate orders aflPecting the judgment may be reviewed on appeal. C. C. P., s. 313. Upon an appeal from a judgment, the court may re- view any intermediate order involving the merits and necessarily affecting the judgment. Long V. Holt, G8— 53; SIcKclhan v. Ray, 71—165; Hinton v. Deanes, 75—18, Jones v. Boyd, 80—258. Sec. 563. Judgment on appeal; restitution; undertak- ings on appeals and writs of certiorari. C. C. P., s. 314. R. C, c. 4, s. 10. 1785, c. 233, s. 2. 1810, c. 793, s. 1. 1831,c. 46, s. 2. Upon an appeal from a judgment or order, the appel- late coiu-t may reverse, affirm or modify the judgment or order appealed from, in the respect mentioned in the notice of appeal, and as to any or all of the parties, and may, if necessary or proper, order a new trial. When Chap. 10.] CODE OF CIVIL PROCEDURE. 221 the iud^ment is reversed or modified, the appeUate court may make complete restitution of all property and rights lost by the erroneous judgment. Undertakings for the prosecution of appeals and on writs of certiorari shall make a part of the record sent up to the supreme court, on which judgment may be entered against the appellant or person prosecuting the writ of certiorari and his sureties m all cases where judgment shall be rendered against the appellant or per- son prosecuting said writ. Whitehead v. Smith, 8 Jon.. 351; Clerk's Office v. Huffsteller. 67-449; Wade V New Bi-rne, 72-494; Green v. Hobgood, 74-234; State v. R. K. Co 74-287- Rouse v. Quinn, 75-354; Heyer t. Beatty. 76-28; Lane T Morton 73-7- Bernard v. Johnston, 78-25; Howerton v. Henderson, 86-718; Boyett v. Vaugban, 86-725; Burnett v. Nicholson, 86-728; Chastain v. Chastain, 87—283. Sec 564. On appeal, or recordari of defendant from jus- tice's iudgmeut, court may compel plaintiff to secure costs. B. C, c. 31, s. 104. 1831, c. 29, s. 1. When any defendant shall appeal from the judgment of a justice of the peace to the superior court, or when the judgment of such justice shall be removed by the de- fendant by recordari or otherwise, to a superior court, the court having cognizance of such appeal or recordari may upon sufhcient cause shown by affidavit, compel the plaintiff to give an undertaking, with sufficient surety for payment of the costs of the suit, m the event of his faihng to prosecute the same with effect. Lea V. Brooks, 4 Jon., 438. Sec 565. Appeals, from a justice to be tried at first term of court; judgment against party cast and his sureties; liow to have amount of judgment ascertained in case of default. R. C, c. 31, s. 105. 1777, c. 115, s. 63. 1794. C.414, s. 1. , . . X r When an appeal shall be taken from the judgment of a justice of the peace to a superior court, the same shall be reheard by the court; whereupon an issue shall be made up and tried by a jury at the first term to which it is returned, unless continued; and judgment shall be given therein against the party cast and his sureties^ And when the defendant shall make default, the plaintiff in actions instituted on a single bond, a covenant for the payment of money, bill of exchange, promissory note, or a signed account, shaU have judgment, and in other cases 222 CODE OF CIVIL PROCEDURE. [Chap. 10. may have his inquiry of damages executed forthwith by a jury. Ramsour V. Harshaw, 8 Ircd., 480; Williams t. Beaslcy, 13 Ired., 112; Hartsfield v. Jones, 4 Jon., 309; Spaugh v. Boner. 85—208; Brown v.' Brittain, 84—553. Sec. 666. If plaiutiff appeal and do uot recover a greater sum, be shall uot recover costs, but be liable to pay. R. C, c. 31, s. 106. 1794, c. 414, s. 17. If judgment be entered for the plaintiff, and he shall not recover on his appeal a greater sum than was recov- ered before the justice, besides interest accrued since the rendition of the judgment, he shall not recover the costs of the appeal, but shall be liable at the discretion of the court to pay the same. TITLE XIV. OF THE MISCELLANEOUS PROCEEDINGS IN CIVIL ACTIONS, AND GENERAL PROVISIONS. Chap. I. Submitting a Controversy without Action. II. Confession of Judgment without Action. III. Offer of the Defendant to Compromise THE Whole or a Part of the Action. IV. Admission or Inspection of Writings. V. Examination of Parties. VI. Examination of Witnesses. VII. Motions and Orders. VIII. Computation of Time. IX. Notices and Filing and Service of Papers. X. Duties of Sheriffs and Coroners. XL Powers of Referees. XII. Miscellaneous Provisions. CHAPTER ONE. SUBMITTING A CONTEOVEESY WITHOUT ACTION. Section. Skction. 567. Controversy, how submitted 5G9. Judgment, how enforced and without action. appealed from. 668. Judgment roll. Chap. 10.] CODE OF CIVIL PROCEDURE. 223 Sec. 567. Controversy, how submitted without action. C. C. P., s. 315. Parties to a question in difference, which might be the subiect of a civil action, may, without action, agree upon a case containing the facts upon which the controversy depends, and present a submission ot tne same to any court which would have jurisdiction if an action had been brought. But it must appear by affidavit that the controversy is real, and the proceedings m good faith to determine "the rights of the parties. The ]udge shall thereupon hear and determine the case, and render judg- ment thereon as if an action were pending. Bates V Lilly 65-333; Johusoii v. Cross. 66-167; Hervey v. Edmunds, 68-343- Pullett v. Raleigli, 68-451; Hager v. Ni.xon, 68-108; McKethan ^ Ray 71-165; Lewis v. County of Wake, 74-194; Holland v. Isler, 77— 1- Dixon V Coke 77-305; Miller v. Churchill, 78-373; Harrell v. Peebles, 79_2G- Grant v. Newsom, 81-36; Davis v. Moss, 81-303; State v. Alphin, 81—566; Busbee v. Macy, 85-339; Busbee v. Lewis, 85-333; Pearson v. Boyden,' 86—585; Moore v. Hinnant, 87—505. Sec. 568. Judgment roll. C. C. P., s. 316. Judf^ment shall be entered in the judgment docket, as in other tases, but without costs for any proceeding prior to trial The case, the submission, and a copy of the judgment, shall constitute the judgment roU. Sec. 569. Judgment, how enforced and appealed from. C. C. P., s. 317. The judgment may be enforced in the same manner as if it had been rendered in an action, and shall be subject to appeal in hke manner. CHAPTER TWO. CONFESSION OF JUDGMENT WITHOUT ACTION. Section. 570. Judgment may be confessed for debt due on contingent liabi- lity. Section. 571. Statement in writing and form tbei'eof. 573. Judgment and execution. Sec. 570. Judgment may he confessed for debt due ou contingent liability. C. C. P., s. 325. A judgment bv confession may be entered, without 224 CODE OF CIVIL PEOCEDUEE. [Chap. 10. action, either in or out of term, either for money due or to become due, or to secure any person against contin- gent habihty on behalf of the defendant, or both, in the manner prescribed by this chapter. Hervey v. Edmunds, 68—243; McAden v. Hooker, 74—24; Davidson v Alexander, 84^621. Sec. 571. Statement in writing and form thereof. C. C P., s. 326. A statement in writing must be made, signed by the defendant, and verified by his oath, to the following (1) It must state the amount for which judgment may be entered, and authorize the entry of iudgment therefor; (2) If it be for money due, or to become due, it must state concisely the facts out of which it arose, and must show that the sum confessed therefor is justly due, or to become due; (3) If it be for the purpose of securing the plaintiff agamst a contmgent liability, it must state concisely the facts constitutmg the liability, and must show that the sum confessed therefor does not exceed the same. McAdea v. Hooker, 74—24; Davidson v. Alexander, 84— C21. Sec. 572. Judgment and execution. C. C. P., s. 327. The statement may be filed with the clerk of the superior court of the county in which the defendant resides, or if he does not reside in the state, of some county in which he has property. The clerk shall indorse upon it and enter on his judgment docket a judgment of the court for the amount confessed, with three dollars costs, together with disbursements. The statement and afifidavit, with the judgment indorsed, shall thenceforth become the judgment roll. Executions may be issued and enforced thereon in the same mamier as upon judgments ui other cases in such courts. When the debt for which the judgment is recovered is not all due, or is payable in instalments, and the instalments are not all due, the execution may issue upon such judgment for the collec- tion of such instalments as have become due, and shall be m the usual form; but shall have indorsed thereon, by the attorney or person issuing the same, a direction to the sheriff to collect the amount due on such judi^ment, with interest and costs, which amount shall be "stated, with interest thereon, and the costs of said judgment. JNotwithstandmg the issue and collection of such execu- Chap. 10.] CODS OF CIVIL PROCEDURE. 225 tion the iudgment shaU remain as security for the instalments thereafter to become due; and whenever any further instalment become due, execution may, m like manner, be issued for the collection and enforcement of the same. McAden v. Hooker, 74—34. CHAPTER THREE. OPTER OP THE DEFENDANT TO COMPEOMISE THE ^ WHOLE OR APART OF THE ACTION. Section. 573. Offer of compromise. 574. Effect of compromises in gen- eral. 575. Defendant may offer to liquidate damages conditionally. Section. 576. Effect of acceptance or refusal of offer. 577. In trespass upon real property, defendant may disclaim title and plead tender in bar. Sec. 573. Offer of compromise. C. C. P., s. 328, (1.) The defendant, at any time before the trial or verdict^ mav lerve upon the plaintiff an offer m writmg to allow Sment to betake^, against him for the sum or prop- erty, or to the effect therein specified, with costs. 1 the Stiff accept the offer, and give notice thereof in writing wftMn ten days, he may file the summons, complaint and Ser with an affidavit of notice of acceptance, and the cS must thereupon enter judgment accordingly If the notice of acceptance be not given, the offer is to be deemed withdrawn, and cannot be given in evidence; aSthl plaintiff fail to obtain a more favorable .iudg- ment he cannot recover costs, but must pay the defend- SS?s costs from the time of the offer ; and m case the ^Pfpndant shall set up a counter-claim m his answer to afalunt greater tSan the plaintiff's claim, or sufficient to reduce the plaintiff's recovery below firty dollars then the Sntiff may serve upon the defendant an offer in writing to allow judgment to be taken agamst him for the amount specifild, or to aUow said counter-claim to the amZnt spedfied with costs. If the deendant ac- cept the™ffer, aid give notice thereof m wnting^within ten days he may enter judgment as above for the amouSt^s'pecified, if the offer entitle him to judgment, or 226 CODE OF CIVIL PROCEDURE. [Chap. 10. if the amount specified in said offer shall be allowed him in the trial of the action. If the notice of acceptance be not given, the offer is to be deemed withdrawn, and can- not be given in evidence ; and if the defendant fail to recover a more favorable judgment, or to establish his counter-claim for a greater amount than is specified in said offer, he cannot recover costs, but nmst Day the plaintiff's costs from the time of the offer. Sec. 574. Effect of compromises iu general. 1874-'5 c 178, s.l. In all claims, or money demands, of whatever kind, and howsoever due, where an agreement shall have been or shall be made and accepted for a less amount than that demanded or claimed to be due, in satisfaction thereof, the payment of such less amount according to any such agreement in compromise of the whole, shall be a full and complete discharge of the same. Curry V. Kennedy, 78—91; Fickey v. Merdmon, 79—585; Williamson v. Canal Co., 84^639. Sec. 5/5. Defendant may offer to liquidate damages con- ditionally. C. C. P., £. .329. In an action arising on contract, the defendant may, with his answer, serve upon the plaintiff an offer in writing, that if he fails in his defence, the damages be assessed at a specified sum; and if the plaintiff signify his acceptance thereof in writing, ten days before the trial, and on the trial have a verdict, the damages shall be assessed accordingly. Sec. 576. Effect of acceptance or refusal of offer. C. C P.,s. 330. If the plaintiff does not accept the offer, he sliall prove his damages, as if it had not been made, and shall not be permitted to give ir ixi evidence. And if the damages assessed in his favor shall not exceed the sum mentioned in the offer, the defendant shall recover his expenses incurred in consequence of any necessary preparation or defence in respect to the question of damages. Such expense shall be ascertained at the trial. Sec. 577. In trespass upon real property, defendant may disclaim title and plead tender iu bar. K. C, c. 31, s. 79. 1715, c. 3, s. 7. In actions of trespass upon real estate, wherein the defendant in his answer shall disclaim to make any title Chap. 10.] CODE OF CIVIL PKOCEDUEE. 227 SSenteorKunfar^^^^ defendant shall be per- mS to make a disclaimer, and that the trespass was bv ne 'liaence or involuntary, and a tender or offer ot suffici^n! amends for snch trespass; wherenpon, or upon some of them, the plaintiff shall ]oin issue, and if the issue be found for the defendant, or if the plaintiff shall be nonsuited, he shall be barred from the said action and all other suits concerning the same. Blackburn v. Bowmai., 1 Job.. 441; Wooley v. Robinson, 7 Jon,, 30. CHAPTER FOUR. ADMISSION OR INSPECTION OF WEITINGS. Section. 578. Inspection and copy of books, papers, and documents, how obtained. Sec 578. Inspection and copy of books, papeis, and docu- ^"'inenS, Ixow obtained. K. C, c. 31. s. 82 R. S c 31. s. 86. 1831, c. 1095. 1838, c. 7. C. C. P., s^f^l. Either narty may exhibit to the other, or to his attor- ney at a7y me before the trial, any paper material to IhJactfon, and request an admission m wntmg of its lenuineness. If thi adverse party, or his attorney, fail fojve the admission within four days after the request and if the party exhibiting the paper be af terwarfs put to expense in order to prove its genumeness, and the same be toally P?oved or admitted on the trial such expense to £ ascertained at the ^ml, shall be paid by the p^^^^ refusing the admission, unless it appear to the sati^tac- tLn of the court that there were good reasons for the re- fusal Tiae court before which an action is pending or a Sge thereof, may, in their discretion, and upon due no\icf,onier either party to give to the other, within a specified time, an inspection and copy or permission to take a copy, of any books, papers, and documents m- his Sssession or under his control, contaimng evideiice re- Fatin- to the merits of the action or the defence therein. If compliance with the order be refused, the court, on 228 CODE OF CIVIL PROCEDUEE. [Chap. 10. motion, may exclude the paper from being given in evi- dence, or punish the party refusing, or both. Graham v. Hamilton, 3 lied., 381; McGibboney v. Mills, 13 Ircd., 163; Branson v. Feulress, 13 Ired., 1G5; Fuller v. McMillan, Busb., 206; Ward V. Simmons, 1 Jon., 404; Murcliisou v. McLeod. 2 Jon., 239; Maxwell V. McDowell, 5 Jon., 391; Morrow v. Alhuan, 65—508; Linker v. Ben- son, 67—150; Justice v. Bank, 83—8; McLcod v. BuUai-d, 84—515; Knight V. Houglitalling, 85—17; Com'rs v. Lemly, 85—341. CHAPTER FIVE. EXAMINATION OF PAKTIES. Section. 579. Action for discovery abolished. 580. A party may be examined as a witness except in certain cases. 681. Such examination also allowed before trial. 583. Party, how compelled to at- tend. 583. Testimony of party may be re- butted. 684. Effect of refusal to testify. Section. 585. Testimony of a party not re- sponsive to the inquiries may be rebutted by the oath of the party calling him. 586. Persons for whom action Is brought or defended may be examined. 587. Examination of co-plaintiff or co-defendiint. 588. Husband and wife witnesses. Sec. 579. Action for discovery abolished. C. C. P., s. 332. No action to obtain discovery under oath, in aid of the prosecution or defence of another action, shall be allowed, nor shall any examination of a party be had, on behalf of the adverse party, except in the manner prescribed by this chapter. School Committee v. Kesler, 66—323; Strudwick v. Brodnax, 83 — 101; Com'rs V. Lemly, 85 — 341. Sec. 580. A party may be examined as a witness except in certain cases. C. C. P., s. 333. 1879, c. 183. 1883, c. 310, ss. 1, 2. A party to an action may be examined as a witness at the instance of the adverse party, or of any one of several adverse pai'ties, and for that purpose may be com- pelled, in the same manner and subject to the same rules of examination as any otiier witness to testify, either at the trial or conditionally or upon commission: Provided, Chap. 10.] CODE OF CIVIL PEOCEDURE. 229 no person who is or shall be a party to an action founded onSgment rendered before the first day of August one thousand eight hundred and sixty^eight, or ou any bond executed prior to said date, or tbe assignor en- dorser or any person wlio has at the time of the tiial or e?er ias SJLy interest in such J ^dgment or bond shal hP a comnetent witness on the trial of such action, but this pmvfso shall not apply to the trial of any action conim'enced before the firL^ay of August -e thousand eight hundred and sixty-eight, nor to the trial of any act on in which the defendant therein relies upon the p ea orpaySent in fact, or pleads \^-^^^irv^f^^JfiA introduces himself as a witness to ^staWish the i uth o^ sucli plea, but in all such cases the rules of evidence as contained in this code shall prevail. Whitesides y. Green, 64-307; McKesson v. Hennessce, 66-473; Taylor V Taylor 76-433; Cannon v. Morris, 81-130; Smith v. Hanes, 83-448, Tabor V. War.1, 83-291; Wilkerson v. Buchanan. 83-296; Strud^^v^k v. Brodnax, 83-401; Macay, ex parte, 8i-6i; Jones v. Henry, 84-320; Cotn'rs ;. Lemly, 85-341; Pugh v. Grant. 8^39; Morgan v. Bu,Umg, 86—66; Johnston v. Joues, 87—393. Sec. 581. Such examination also allowed before trial. C. C. P., s. 334. The examination instead of being had at the trial as nrovided m the preceding section, may be had at any Sr before the trial, at the option of the party claimmg ii be ore a judge or clerk of the court on a previous notice to the party to be examined, and any other ad- verse party of at least five days, unless for good cause Ihown^theudge shall order otherwise But the party Sbl examined^ shall not be compelled to attend m any county otber than that of his residence, or where he may be served with a summons for his attendance. Strudwick V. Brodnax, 83-401; Com'rs v. Lemly, 85-341. Sec. 583. Party, liow compelled to attend. C. C. P., s. 335. ^. ,. The party to be examined, as in the preceding section provided! niay be compelled to attend in the same man- SerTs a witness who is to be examined conditionally; and ?lie examination shall be taken and f^led by the judge or clerk in Uke manner, and may be read by either party on the trial. Strudwick V. Brodnax. 83-401; Com'rs v. Lemly, 85-341. 330 CODE OF CIVIL PEOCEDUEE. [Chap. 10. Sec. 583. Testimony of party may be rebutted. C. C. P., s. 336. The examination of the party thus taken may be re- butted by adverse testimony. St^ud\^■icii v. Brodnax, 83 — iOl ; Com'rs v. Lemly, 85—341. Sec. 584. Eflfect of refusal to testify. C. C. P., s. 337. If a party refuses to attend and testify, as in the four preceding sections provided, he may be punished as for a contempt, and his complaint, ansvs^er or reply may be stricken out. Phillips V. TrezevaDt, 70—176; Strudwick v. Brodnax, 83 — 401; Com'rs V. Lemly, 85—341. Sec. 685. Testimony of a party not responsive to the inqui- ries may be rebutted by tlie oath of the party calling him. C, C. P., s. 338, A party examined by an adverse party, as in this chap- ter provided, may be examined on his own behalf, sub- ject to the same rules of examination as other vv^it- nesses. But if he testify to any new matter, not respon- sive to the inquiries put to him by the adverse party, or necessary to explain or qualify his answers thereto, or discharge when his answers would charge himself, such adverse party may offer himself as a witness on his own behalf in respect to such new matter, subject to the same rules of examination as other witnesses, and shall be so received. Taylor V. Taylor, 76 — 433; Strudwick v. Brodnax, 83—401; Com'rs v. Lemly, 85—341. Sec. 586. Persons for whoni action is brought or defended may be examined. C. C. P., s. 330. A person for whose immediate benefit the action is prosecuted or defended, though not a party to the action, may be examined as a witness, in the same manner, and subject to the same rules of examination, as if he were named as a party. Strudwick v. Brodnax, 83—401; Com'rs v. Lemly, 85—841. Sec. 587. E.Yamination of co-plaiutiflf or co-defendant. C. C. P., s. 340. A party may be examined on behalf of his co-plaintiff or of a co-defendant as to any matter in which he is not jointly interested or liable with such co-plaintiff or co defendant, and as to which a separate and not joint ver- Chap. 10.] CODE OF CIVIL PEOCEDURE. 231 diet or iudgment can be rendered. And ]ie may be com^ pelled to attend in the same manner as at the nistancB ot an adverse party; but the examination thus taken shall not be used in behalf of the party exammed. And whenever one of several plaintiffs or defendants who are ioint contractors, or are united in interest is examined by the adverse party, the other of such plaintiffs oi de- feVdants may offer himself as a witness to. the same cause of action or defence, and shall be so received. ■ Bovkin V. Boyldn, 70-362; Penny v. Brink, 75-68; Strudwick v. B'rodnax, 83—401; Com'isv. Lemly, 85—341. Sec. 588. Husband and wife witnesses. C. C. P., s. 341. 1866, c. 40, s. 2. In any trial or inquiry in any suit, action or proceeding in any court, or before any person having by law or con- sent of parties, authority to examine witnesses or hear evidence, the husband or wife of any party thereto, or of any person in whose behalf any such suit, action or proceeding is brought, prosecuted, opposed or defended shall except as hereinafter stated, be competent and compellable to give evidence, as any other witness, on behalf of any party to such suit, action or proceed- ing Nothing herein shall render any husbaiid or wife competent or compellable to give evidence for or against the other, in any criminal action or proceeding (except to prove the fact of marriage m case of bigamy , or in any action or proceeding in consequence ot adul- terv or many action or proceeding for divorce mi account of adultery (except to prove the fact of marriage), or m any action or proceeding for or on account of criminal conversation. No husband or wife shall be compellable to disclose any confidential communication made by one to the other during their marriage. Ricev Keith 63-319; Barringer v. Barringer, 69-179; Boykin v. Boy- kiu, 70-263; Home v. Home, 75-101 ; Taylor v. Taylor, 76-433; Com'rs V. Lemly, 85—341. I 232 CODE OF CIVIL PEOCEDURE. [Chap. 10. CHAPTER SIX. EXAMINATION OF WITNESSES. Section. 589. Interest not to exclude a wit- ness. 590. When party may be examined and -wlien not. 691. In Tvliat actions, for what sums, and witliin wliat time booli Section. accounts may be proved by a party. 593. nooli accounts, how proved by executors and admiuistralors. 593. Copies of account aie evidence unless notice given to produce orlsinal. Sec. 589. Interest not to exclude a witness. C. C. P., s. 342. No person offered as a witness shall be excluded by- reason of his interest in the event of the action. State V. Mcintosh, 04 — 607; Isenhour v. Iscnhour, 04 — 640; Gray v. Cooper, 65—183; Murray, v. Blacliledge, 71 — 492; Ballard v. Ballard, 75— 190; Lewis v. Fort, 75—251; Mason v. McCormicIj, 75 — 263; Taylor v. Tay- lor, 76 — 433; Gidncy v. Logan, 79—214; Pepper v. Broughlon, 80—251. Sec. 590. When party may he examined and when not. Upon the trial of an action, or the hearing upon the merits of a special proceeding, a party or a person in- terested in the event, or a person from, through or under whom such a party or interested person derives his inter- est or title by assignment or otherwise, shall not be ex- amined as a witness in his own behalf or interest, or in behalf of the party succeeding to his title or interest against the executor, aihninistrator or survivor of a de- ceased person, or the committee of a lunatic, or a person deriving his title or interest from, through or under a deceased person or lunatic, by assignment or otherwise, concerning a personal transaction or communication be- tween the witness and tlie deceased person or lunatic; except where the executor, administrator, survivor, com- mittee or person so deriving title or interest is examined in his own behalf, or the testimony of the lunatic or deceased person is given in evidence concerning the same transaction or communication. Whitcsides v. Green, 64—807; Merony v. Avery, 04 — 813; Peoples v. Maxwell, 64—313; Stale v. Mcintosh, 64—607; Isenhour v. Iscnhour, 64— 640; grower v. Ilughes, 64—643; Halyburton v. Harshaw, 65—88; Gray v. Chap. 10.] CODE OF CIVIL PROCEDURE. 233 Cooper 65—183; Islcr v Dewey, 67-93; Howerton v. Lattimer, 68-370; Andrews V. McDanicl, 68-385; Gilmer v. McNairy, 69-335; Bryant v. Morris 69-444; Redman v. Ecdman, 70-257; Lcggett v. Glover, 71-211; Woodhouse V. Simmons, 73-30; Henry v. Willard, 73-35; Jaclcson v. Evans 73-128; Murpby v. Ray, 73-588; Lewis v. Wake Co., 74—194; McCanless v. Rsynolds, 74-801; Thomas v. Kelly, 74-416; Kirk v. Barn- hart 74-653- Penny v. Brink, 75-68; Ballard v. Ballard. 75-190; Lewis V Fort 75-251; Mason v. McCormick, 75-263; Taylor v. Taylor, 76— 433; Bushee v. Surles, 77-62; Peebles v. Stanley, 77-243; March v. Ver'ble, 79—19; Lawrence v. Hyman, 79-209; Gidney v. Logan, 79—214; Shields V. Smith, 79-517; Mason v. McCormick, 80-244; Pepper v. Broughton, 80-251; Gregg v. Hill, 80-255; Molyneux v. Huey, 81-106 Latham v. Dixon, 82—55; Williams v. Johnston, 82— 28-i; Tabor v. Ward, 83—291; Wilkerson v. Buchanan, 83—296; Thompson v. Humphrey, 83— 416; Ma'cay, ex parte, 84-63; Perry v. Jackson, 84-230; McLearly v. Nor- ment, 84—235; Gulley v. Macy, 84—434; Syme v. Broughton, 85—307; Muu'v. Martin, 85—406; Hawkins v. Carpenter, 85—483; Allen v. Gilkey, 86—64; Morgan v. Bunting, 86—66; Sumner v. Candler, 86—71; Lock- hartv Bell, 86—443; Gidoey v. Moore, 86—484; McKee v. Lineberger, 87— 181; Love's Ex'rs v. Harbin, 87-249; Grier v. Cegle, 87—377; Johnston v. Jones, 87—393. C. C. P., s. 343. Sec. 591. In wbat actions, for what sums, and within what time hoolc accounts may be proved by a party. R. C, c. 15, s. 1. 1756, c. 57, ss. 2, G, 7. C. C. P., s. 343 (a.) When any person shall bring an action upon a contract, or shall plead, or give notice of, a set-off or counter-claim for goods, wares and merchandise by him sold and de- livered, or for work done and performed, he shall file his account with his complaint, or with his plea or notice of set-off or counter-claim, and if upon the trial of the issue, or executing a writ of inquiiy of damages in such action, he shall declare upon his oath that the matter in dispute is a book account, and that he hath no means to prove the delivery of any of the articles which he then shall propose to prove by himself but by this book; in that case such book may be given in evidence, if he shall make out by his own oath that it doth contain a true account of all the dealings, or the last settlement of accounts be- tween himself and the opposing party, and that all the articles therein contained, and by him so proved were bona fide delivered, and that he hath given the opposing party all just credits; and such book and oath shall be received as evidence for the several articles so proved to be delivered within two years next before the commence- ment of the action, but not for any article of a longer 234 CODE OF CIVIL PROCEDURE. [Chap. 10. standing, nor for any greater amount than sixty dol- lars. Mitchell V. Clarke, Mar., 3.5; Carlton v. Lawry, Mar., 26; Thomcguex V. Bell, Mar., 44; Kitchen v. Tyson, 3 Mur., 314; Stcvtlie v. Greenlee, 1 Dev., 317; Colbert v. Piercy, 3 Ired., 77; McAVilliam v. Cosby, 4 Ired., 110; Adkinson V. Simmons, 11 Ired., 416; Alexander v. Smoot, 13 Ired., 461; Waldo V. Jolly, 4 Jon., 173; Pannellv. Scroggin, 8 Jon., 408; Bland v. Warren, 65—373; Leggett v. Glover, 71—211. Sec. 592. Book accounts, how proved by executors and administrators. K. C, c. 15, s. 3. 1756, c. 57, s. 2. 1796, c. 465. C. C. P., s. 343 (b.) In actions where executors and administrators are parties, such book account for all articles delivered within two years previous to the death of the deceased may be proved under the like circumstances, rules and conditions; and in such case, the executor or adminis- trator may i^r-ove by himself that he found the account so stated on the books of the deceased; that there are no witnesses, to his knowledge, capable of proving the de- livery of the articles which he shall propose to prove by said book, and that he believes the same to be just, and doth not know of any other or further credit to be given than what is therein mentioned : Provided, that if two years shall not have elapsed previous to the death of the deceased, the executor or administrator may prove the said book account, if the suit shall be commenced within three years from the delivery of the articles : Provided further, that whenever by the aforesaid proviso the time of proving a book account in manner aforesaid is enlarged as to the one party, to the same extent shall be enlarged the time as to the other party. Stevelie v. Greenlee, 1 Dev., 317; Coxe v. Skeen, 3 Ired., 443. Sec. 593. Copies of account are evidence unless notice given to produce original. R. C, c. 15, s. 3. 1756, c. 57, s. 3. C. C. P., s. 343('-.) A copy from the book of accounts proved in manner above directed may be given in evidence in any such action or setoff as "aforesaid, and shall be as available as if such book had been produced, unless the party oppo- sing such proof shall give notice to the adverse party or his attorney, at the joining of the issue, or ten days be- fore the trial, that he will require the book to be pro- duced at the trial; and in that case no such copy shall be admitted as evidence. Morgan v. Bass, 3 Ired., 243. Chap, lu.] CODE OF CIVIL PEOCEDUEE. 235 CHAPTEE SEVEN. MOTIONS AND OEDEES. Sectiok. 594. Definition of an order; motions, how and where made; com- Section. pelling parties to testify; de- cision on motion. 595. Notice of motion. Sec 594. Definition of an order; motions, liowand wliere made; compelling parties to testify; decision on motion. C. C. P., ss. 344, 345. . Every direction of a court or judge, made or entered ui writing, and not included in a judgment, isdenommated an order: ., . , . (1) An application for an order is a motion; (2) Motions maybe made to a clerk of a superior court, or to a judge out of court; except for a new trial on the ™(3) Motions must be made within the district in which the action is triable; . - i a (4) A motion to vacate or modify a provisional remedy, and an appeal from an order allowing a provisional rem- edy shall have preference over all other motions; (5) When any party intends to make or oppose a motion in any court of record, and it shall be necessary for hini to have the affidavit of any person who shaU have refused to make the same, such court may, by order, ap- point a referee to take the affidavit or deposition of such person. Such person may be subpoenaed and compelled to attend and make an affidavit before such referee, the same as before a referee to whom it is referred to try an (6)'Whenever a motion shall be made in any cause or proceeding in any of the courts, to obtain an injunction order order of arrest, or warrant of attacliment, granted in any such case or proceeding, or a mot^ion to vacate or modify the same is made, it shall be the duty of the judge before whom such motion is made, to render and make known his decision on such motion within ten days after the day upon which such motion shall or may be submitted to him for decision. Foard V Alexander, 64-69; Erwin v. Lowery, 64-331 ; Williams v. Rockwell 64-335; Jarman v. Saunders, 64-367; Churcli v. Furniss, 64- 059- Council v. Rivers, 65-54; Foreman v. Bibb, 65-138; McDowell v. 236 CODE OF CIVIL PROCEDUEE. [Chap. 10. Asbury, 60 — 444; Seymour v. Cohen, 67—345; Birdsey v. Harris. 68—93; Deal V. Palmer, 68—215; Childs v. Martin, 68—307; Clayton v. Jones, 68 — 497; Aycock v. Harrison, 71—433; Mauncy v. Montgomery County, 71 -^86; Longv. Cole, 73—20; Sutton v. McMillan, 73— 102; Faxton v. Wil- liamson, 73—125; Lyon v. McMillan, 73—393; Folk v. Howard, 73—537; Lord V. Beard, 79—5; Askew v. Capehart, 79—17; Skinner v. Bland, 87— 168. Sec. 595. Notice of motion. C. C. P., s. 346. When notice of a motion is necessary, it must be served ten days before the time appointed for the hearing; but the court or judge may, by an order to show cause, pre- scribe a shorter time. Wheeler v. Lawrence, 81 — 65. CHAPTER EIGHT. COMPUTATION OF TIME. Section. 596. Time, how computed. Sec. 596. Time, how computed. C. C. P., s. 348. The time within which an act is to be done, as herein provided, shall be computed, by excluding the first day and including the last. If the last day be Sunday, it shall be excluded. Branch v. R. R, Co., 77—347; Keeter v. R. R. Co., 86—346. CHAPTER NINE. NOTICES AND FILING AND SEEVICE OF PAPERS. Section. I Section. 597. Notices and other papers, how 1 nesses; when this section does served; subpoena for wit- ' not apply. Sec. 597. Notices and other papers, how served; subpoena for witnesses. C. C. P., ss. 349, 353. 1876-'7, c. 64, s. 1. Notices shall be in writing; notices and other papers may be served on the party or his attorney personally, where not otherwise provide^ in tliis chapter: Chap. 10.] CODE OF CIVIL PROCEDURE. 237 (1) If upon an attorney, service may be made during his absence from his office, by leaving the paper with his clerk therein, or with a person havmg charge tliereot; or when there is no person in the office, by leavmg it, between the hours of six in the morumg and nine m the evening, in a conspicuous place in the office: or, it it_ be not opeii so as to admit of such service, then by leaving it at the attorney's residence, with some person ot suit- able age and discretion; -, , 1 • ii,„ (2) If upon a party, it may be made by leavmg the paper at his residence, between the hours of six in the morning and nine in the evening, with some person ot suitable age and discretion; , , . . f, /i„„ (3) If upon a person who cannot be found after due diligence, or who is not a resident of this state the ser- vice thereof may be made by the publication of the notice once a week for four successive weeks in some newspaper published in the county from which the notice is issued; and if no newspaper be published therein, then m some newspaper published within the judicial district; and the proof of service shall be as is required by law in the case of a service of a summons by pubhcation; (4) Service of a subpoena for witnesses may be made by a sheriff, coroner or constable, and proved by the re- turn of such officer, or the service may be made by any person not a party to the action, and proved by his oath. A subpoena for witnesses need not be signed by the clerk of the court; it shall be sufficient if subscribed by the party or by his attorney. This section shall not apply to the service of a summons, or other process, or ot any paper, to bring a party into contempt. Faison v. Mcllwaine, 72—312; Surratt v. Crawford, 87—372. CHAPTER TEN. DUTIES OF SHEEIFFS AND COKONEES. Section. I Section. 598. Duty of sheriff and coroner in and how enforced; may return serving or executing process, ' process by mail. Sec 598. Duty of sheriff and coroner in serving or execut- ing process", and liow enforced; may return process by mail. C. C. P.. s. 354. Whenever the sheriff may be required to serve or ex- i 238 CODE OF CIVIL PROCEDURE. [Chap. 10. ecute any summons, order or judgment, or to do any- other act, he shall be bound to do so in like manner as upon process issued to him, and shall be equally liable in all respects for neglect of duty;. and if tlie sheriff be a party, the coroner shall be bound to perform the service, as he is now bound to execute process where the sheriff is a party; and this chapter relating to sheriffs shall apply to coroners when the sheriff is a party. Sheriffs and coroners may return process by mail. Their liabili- ties in respect to the execution of process shall be as presciibed by law. Thompson v. Berry, 64—79; Tate v. Powe, 64^644; Jones v. Gupton, 65—48. CHAPTER ELEVEN. POWERS OF EEFEEEES. Section. 599. Powers of referees. Sec. 599. Powers of referees. C. C. P., s. 356. Every referee shall have power to administer oaths in any proceeding before him, and shall have generally the power vested in a referee by law. CHAPTER TWELVE. MISCELLANEOUS PEOVISIONS. Section. 603. Time for publication of notices, bow computed. Section. 600. Paper lost or withheld, copy to be used. 601. Where undertaliings to be filed. Sec. 600. Paper lost or witlilield, copy to be used. C. C. P., s. 357. If an original pleading or paper be lost or withheld by any person, the court may autliorize a copy thereof to be filed and used instead of the original. Chap. 10.] CODE OF CIVIL PROCEBURE. 239 Sec. 601. Where undertakings to be filed. C. C. P., s. Thtvxrious undertakings required to be given by chap- tpj en must be filed wiih 'the clerk of the court, unless sheritf , or filed as thereui provided. Sec. 602. Time for publication of notices, how computed. Th'p^time for publication of legal notices shall be com- puted s as to exclude the first day of P^blicauoa and n> elude the day on which the act or event of which notice is gi?en is to happen, or which completes the full period required for pubhcation. TITLE XV. ACTIONS IN PARTICULAR CASES. Chan I Actions in Place of Scire Facias, Quo ■ ■ Warranto, and of Informations in the Nature of Quo Warranto. 11. Mandamus. III. Actions for Waste a^^d Nuisance. CHAPTER ONE; AHTIONS IN PLACE OF SCIEE PACIAS, QUO WAR- RANTO AND OF INFORMATIONS IN THE NATURE OF QUO WARRANTO. I Sectiok. m'Zre facias and guo .mrranJm. Action may be brought by at- bolSed, and this chapter torney genera, '";-;«; , .., '. charter, by direction ot the substituted. T • , . Legislature. 240 CODE OF CIVIL PROCEDURE. [Chap. 10. Sectiok. 613. Damages, how recoveri'd. 614. One action against several per- sons, claiming office or fran- chise. 615. Penalty for usurping office or friincUise, how awarded. 616. Trial in such cases to be expe- dited. 617. Judgment of forfeiture against a corporation. 618. Costs against corporation or persons claiming to be such, how collected. 619. Restraining corporation and ap- p( intment of receiver. 620. Copy of judgment roll, where to be filed. 621. Action for forfeiture of prop- erty to state. Section. 605. Action to annul a corporation, when and how brought by the attorney general, by leave of the supreme court. 606. Leave, how obtained. 607. Action upon information or complicint. 608. When attorney general to grant leave to private relator to bring action. 609. Complaint and arrest of defen. dant, in action for usurping an office. 610. Judgment in such actions. 611. Assumption of otfice by rela- tor, when judgment in his favor. 612. Proceedings against defendant on refusal to deliver books or papers. Sec. 603. Scire facias and qtio ivarranto abolished and this chapter substituted. C. C. P., s. 3G2. R. C, c. 26, ss. 5, 25. The writ of scire facias, the writ of quo warranto, and proceedings by information in the nature of qtio tvar- ranto, are abohshed; and the remedies obtainable in those forms may be obtained by civil actions under this sub-chapter. Parker v. Shannonhouse, 1 Phil., 209; Mardre v. Felton, 1 Phil., 279; Riddick v Hinton, 1 Phil., 291; Bingliam v. Ricliardson, 1 Phil., 315; Kingsbury V Huglies, 1 Pliil., 32S; Thompson v. Berry, 64—79; Jones v. Gupton, 05—48; McDowell v. Asbury, 60 — 444; Lewis v. Johnston, 69— 392; Brown v. Turner, 70—93; Saunders v. Galling, 81—298. Sec. 604. Action may be brought by attorney general to vacate a charter, by direction of the legislature. C. C. P., s. 363. An action may be brought by the attorney general, in the name of the state, whenever the legislature shall so direct against a corporation for the purpose of vacating or annulling the act of incorporation, or an act renew- ing its corporate existence, on the ground that such act or renewal was procured upon some fraudulent sugges tion, or concealment of a material fact, by the person in- corporated, or by some of them, or with their knowledge and consent. Chap. 10.] CODE OF CIVIL PROCEDURE, 241 Sec. 605. Action to annul a corporation, when and how brought l>y the attorney general, by leave ot the su- preme court. C. C. P., s. 364. B. C, c. 26, s. 25. An action may be brought by the attorney general m the name of the state, on leave granted by the supreme court or a justice thereof, for the purpose of vacatmg the charter or annulhng the existence of a corporation, other than municipal, whenever such corporation shall— (1) Offend against the act or acts, creating, altering, or renewing such corporation; or, (2) Violate any law by which such corporation shall have forfeited its charter by abuse of its powers; or, (3) Whenever it shaU have forfeited its privileges or franchises by failure to exercise its power; or (4) Whenever it shall have done or omitted ariy act which amounts to a surrender of its corporate rights, privileges and franchises; or, „ , . • -i (5) Whenever it shall exercise a franchise or privilege not conferred upon it by law ; ^ ^ (6) For non-user of its powers for two or more years consecutively; .„,-,, ,-, i. t ^^ (7) For insolvency, manifested by the return of an ex- ecution unsatisfied; upon a judgment against the com- pany docketed in the superior court of the county where it has its entry or principal place of business. And it shall be the duty of the attorney general, when- ever he shall have reason to beheve that any of these acts or omissions can be established by proof , to apply for leave, and upon leave granted, to bring the action, in every case of public interest, and also in every other case in which satisfactory security shaU be given to indem- nify the state against the costs and expenses to be m- curred thereby. Sec. 606. Leave, how obtained. C. C. P., s. 365. Leave to bring the action may be granted upon the ap- phcation of the attorney general; and the court or jus- tice may, at discretion, direct notice of such application: to be o-iven to the corporation or its officers, previous to granting such leave, and may hear the corporation in opposition thereto. Lo£tin V. Sowers, 65—251. Sec. 607. Action upon information or complaint. C. C. P., s. 366. - . An action may be brought by the attorney general in the name of the state, upon his own information, or 11 242 CODE OF CIVIL PEOCEDURE. [Chap. 10. upon the complaint of any private party, against the parties offending in the following cases: (1) When any person shall usurp, intrude into, or un- lawfully hold or exercise any public office, civil or mili- tary, or any franchise within this state, or any office in a corporation created by the authority of this state; or (2) When any public officer, civil or mihtary, shall have done or suffered an act which, by law, shall make a forfeiture of his office; or, (3) When any association or number of persons shall act within this state as a corporation, without being duly incorporated. Culver V. Eggers, 63—630; Patterson v. Hubbs, 65—119; Loftin v. Sowers, 65—251; Clark v. Stanley, 66—59; Howerton v. Tate, 6()— 231; Ellis V. Deaf and Dumb and the Blind, 68 -423; Nichols v. McKee, 68 — 429; Welker v. Bledsoe, 68-457; Howerton v. Tate, 68—546; Brown v. Turner, 70—93; Hargrove V. Hilllard, 72—169; Hargrove v. Hunt, 73—34; Norfleet V. Staton, 73—546; Moore v. Jones, 76—183; People v. Heaton, 77—18; Saunders V. Catling, 81—298; Davis v. Moss, 81—303; State v. Norman, 82—687; Eliason v. Coleman, 86—335; Deloatch v. Rogers, 86—307. Sec. 608. When attorney greneral to grant leave to private relator to bring action. 1874-'5, c. 70, s. 1. 1881, c. 330. When application shall be made to the attorney general by a private relator to bring such an action, he shall gi-ant leave for the same to be brought in the name of the state, upon the relation of such applicant, upon his ten- dering to the attorney genei'al satisfactorj^ security to indemnify the state against aU costs and expenses, which may accrue in consequence of the bringing of such action. Patterson v. Hubbs, 65 — 119; Loflin v. Sowers, 65 — 251; Howerton v. Tate, 66—231; Ray v. Castle, 79—580; Saunders v. Gulling, 81—398. Sec. 609. Complaint and arrest of defendant, in action for usurping an office. C. C. P., s. 369. 1883, c. 102. Whenever such action shall be brought against a per- son for usurping an office, the attorney general, in addi- tion to the statement of the cause of action, may also set forth in the complaint the name of the person right- fully entitled to the office, with a statement of iiis right thereto; and in such case, upon proof by affidavit that the defendant has received fees or emoluments belonging to the office, and by means of his usurpation thereof, an order shall be granted by a judge of the superior court for the arrest of such defendant, and holding him to Chap. 10.] CODE OF CIVIL PROCEDURE. 243 bail; and thereupon he shall be arrested and held to bail in the manner, and with the same eflEect, and subject to the same rights and Uabilities, as in other civil actions where the defendant is subject to arrest. Patterson V. Hubbs, 65-119; Tale v. Morehead, 65-681; Howcrton v. Tate 70-161; Threadgill v. Railway Co., 73-178; Bladen Co. v. Clarke, 73-355; Norfleet v. Staton, 73-355; State v. Long, 76-354; Vann v. Pip- kin, 77—408; Saunders v. Galling, 81—398. Sec. GIO. Judgment in such actions. C. C. P., s. 370. In every such case judgment shall be rendered upon the right of the defendant, and also upon the right; of the party so alleged to be entitled, or only upon the right ot the defendant, as justice shall require. People V. Bledsoe, 68—457; Hargrove v. Hilliard, 73—169. Sec. 611. Assumption of office, &c., by relator, when judgment in his favor. C. C. P., s. 37 1. If the judgment be rendered upon the right of the per- son so alleged to be entitled, and tlie same be in favor of such person, he shall be entitled, after taking the oath ot office, and executing such official bond as may be required by law, to take upon himself the execution ot the othce; audit shaU be his duty, immediately thereafter to de- mand of the defendant in the action all the books and papers in his custodv, or within his power, belonging to the office from which he shall have been excluded. Sec. 612. Proceedings against defendant on refusal to deliver hoolts or papers. C. C. P., s. 372. If the defendant shall refuse or neglect to deliver over such books or papers, pursuant to the demand, he shall be guilty of a misdemeanor, and the same proceedings shall be had, and with the same effect, to compel delivery of such books and papers as are prescribed by law. Sec. 613. Damages, how recovered. C. C. P., s. 373. If judgment be rendered, upon the right of the person so alleged to be entitled, in favor of such person, he may recover by action the damages which he shall have sus- tained by reason of the usurpation by the defendant of the office from which such defendant has been excluded. Howerton V.Tate, 70—161; Swain v. McRac, 80—111; Jones v. Jones, 80 —127. Sec. 614. One action against several persons claiming of- fice or franchise. C. C. P., s. 374. Where several persons claim to be entitled to the same 244 CODE OF CIVIL PROCEDURE. [Chap. 10. office or franchise, one action may be brought against all such persons, in order to try their respective rights to such office or franchise. Sec. 615. Penalty for usurping office or franchise liow awarded. K. C, c. 95, s. 1. C. C. P., s. 375. When the defendant, whether a natural person or a. corporation, against whom such action shall have been brought, shall be adjudged guilty of usurping or intrud- ing into, or unlawfully holding or exercising any office, franchise or privilege, judgment shall be rendered that such defendant be excluded from such office, franchise or privilege, and also that the plaintiff recover costs against such defendant. The court may also, in its discretion, fine such defendant a sum not exceeding two thousand dollars, winch fine, when collected, shall be paid into the treasury of the state. Nichols V. McKee, 68—429. Sec. 616. Trial in such cases to be expedited. 1874:'-5, c. 173. All actions to try the title, or right to any office, state,^ county or municipal, shall stand for trial at the return term of the summons, if a copy of the complaint shall have been served with the summons, at least ten days- before the return day thereof; and it shall be the duty of the judges to expedite the trial of such actions, and to give them precedence over all other actions, civil or crim- inal. But it shall be unlawful to appropriate any pubhe funds to the payment of counsel fees in any such ac- tion. Nichols V. McKee, 68—429. Sec. 617. Judgment of forfeiture against a corporation^ C. C. P., s. 376. If it shall be adjudged that a corporation against which an action shall have been brought, has forfeited by neglect, abuse, or surrender, its corporate rights, privi- leges and franchises, judgment shall be rendered that the corporation be excluded from such corporate rights, privileges and franchises, and that the corporation be dissolved. Sec. 618. Costs against corporation or persons claiming to be such, how collected. C. C. P., s. 377. If judgment be rendered in such action against a cor- poration, or against persons claiming to be a corporation. Chap. 10.] CODE OF CIVIL PROCEDUEE. 245 the court may cause the costs therein to be collected by eiecut"on"agJinst the persons clai^-g to be a_ c^^^^^^^ tion or by attachment or process agamst the dnectois or other officers of such corporation. Sec. 619. Restraiuing corporation and appointment of receiver. C. C P., s. 378. When such iudgment shall be rendered aganist a cor- DoratioS the court shall have the power to restram the corporation to appoint a receiver of its property and to S an account, and make a distribution thereof among its SitorT; and it shall be the duty of the attorney gen- eral immediktely after the rendition of such judgment to institute proceedings for that purpose. Sec. 620. Copy of judgment roll, where to be filed. C. C. P s 370 Upon the Vendition of such judgment against a cor- poXn, it shall be the duty of the ^ttoiW genera^ to cause a copy of the judgment roll to be forthwith hied in the office of the secretary of state. Sec. 621. Action for forfeiture of property to state. C. C. P.,S. 381. , 1 11 r, * Whenever any property, real or personal, shall be for- feited to the state, or to any officer for its use, an action for the recoverv of such property, alleging the grounds of the forfeiture, may be brought by the propef officer m "Zr„rT™"S:93. Steele v. But.e.W Co.. 70-137. Belmont V. RUey, 71—260. CHAPTEE TWO. MANDAMUS. flFCTioN 1 Section. m. Applications for writs of man.\m. Manner in which ^""^^ons for " y app cations for writs of man- damus. "' ' , ,, . I damua sliall issue. Sec. 622. Application for writs of mandamus. 1871-'2, All 'applications for writs of vinndamus shall be made by summons and complaint, and the complaint shall be duly verified. 246 CODE OF CIVIL PROCEDURE. [Chap. 10. Sec. 623. Manner in which summons for application for writs o{ mandamus shall issue. 187 1-'2, c. 75, ss. 2, 3. In aU such applications, when the plaintiff seeks to en- force a money demand, the summons, pleadings and practice shall be the same as is prescribed for civil actions. When the plaintiff seeks relief other than the enforce- ment of a money demand, the summons shall be made returnable before a judge of the superior court at cham- bers, or in term at a day specified in the summons, not less than ten days after the service of the summons and complaint upon the defendant; at which time the court, except for good cause shown, shall proceed to hear and determine the action, both as to law and fact: Provided, that when an issue of fact is raised by the pleading, it shall be the duty of the court, upon the motion of either party, to continue the action until said issue of fact can be decided by a jury at the next regular term of the court. Worthy v. Barrett, 63—199; Pegram v. Com'rs, 64—557; Carson v. Com'rs, 64—566; Gooch v. Gregory , 65— 142 ; Railroad v. Jenkins, 65—173; Lutter- loh V. Com'rs, 65—403 ; Howerton v. Tate, 66—231 ; Bayne v. Jenlsins. 66— 356; Sedberry v. Com'rs, 66 — 486; Thomas v. Com'rs, 66—522; Johnston v. Com'rs, 67—101; Alexander v. Com'rs, 67—330; R. R. Co. v. Jenkins, 68— 502; Steele v. Com'rs, 70—187; "Webb v. Com'rs, 70—307; Uzzle v. Com'rs, 70—564; Edwards V. Com'rs, 70—571; Belmont v. Riley, 71—260; Gas Light Co. V. Raleigh, 75—274; Moore v. Jones, 76—182; Moore v. Jones, 76 188; Fry v. Com'rs, 82—304. CHAPTER THREE. ACTIONS FOE WASTE AND NUISANCE. Section. 624. Waste, how remediable. 625. For and against whom an ac- tion for waste lies. 626. Tenant for life aliening, still liable. 627. Action by tenant against co- tenant. Section. 628. Heirs shall have the action. 629. Judgment for treble damages and place wasted. 630. Remedies for injuries hereto- fore remediable by writ of nuisance. Sec. 624. Waste, how remediable. C. C. P., s. 383. VVrongs, remediable by the old action of waste, are subjects of action as other wrongs; and the judgment Chap. 10.] CODE OF CIVIL PROCEDURE. 247 may be for damages, forfeiture of the estate of the party offending, and eviction from the premises Shields V. Lawrence, 73-43; McCormick v. Nixon. 83-113. Sec. 625. For and against whom an action for waste lies, k C.,c.ll«,s.l. 52 Hen. Ill, c. 33. 6 Edw. I, c. IG. 20 Edw. I. s. 2. 11 Hen. VI, c. 5. In all cases of waste, an action shall lie i^ the superior court at the instance of him in ^^«f ^^^^^ "f ^Jj^J^ against all persons committing the same, f ^^eh tena^^^^^ for term of hfe as tenant for term of years and guaidi ^Mlentine v. Poyner, 2 Hay., 110; Ward v. Sheppard. 2 Ha^ f 3; Pavldns V. Coxe, 3 Hay., 339; Brown v. H.ck, 3 Mur 511; SI me v. Wil ox 1 D. & B Eq., 631; Can- v. Carr, 4 D. & B„ 179; Davis v. GUliam, Tlied EC1..308; DaUon v. DaUon, 7 Ircd. Eq.. 197; ^ '^--•,J'--;: Busb.,30;Smiaiv..harpe,Busb.,91;Doz,erv.Gre,ovy,l.Jon.,100^^T^^^^^^^ son V. Williams. 1 Jon. Eq.. 176; Bogey v. Sbute, 1 Jon. Eq., 180, Gorden V. Lowllier, 75-193; McCormick v. Nixon, 83—113. Sec. 026. Tenant for life aliening, still liable. K. C, c. il6,s.2. llHen.VI,c.5. ... „ Where tenant for hfe or years grants his estate to an- other, and still continues in the possession of the lands tenements, or hereditaments, an action shaU lie against the said tenant for life or years. Southerland v. Jones, 6 Jon., 331. Sec. 627. Action by tenant against co-tenant. K. C, c. 116, s. 4. 13 Edw. I, c. 22. Where a ioint-tenant or a tenant in common commits waste, an action shall he against him at the instance of his co-tenant or jouit-tenant. Sec. 628. Heirs shall have the action. B. C, c. 116, s. 5. ^2 Hen. Ill, c. 23. 6 Ddw. 1, c. 6. 11 Hen. VI, c. 5. 20Edw. I, St. 2. ,. J. x. J Every heir shall have his action for waste committed on lands, tenements, or hereditaments of h.s own in- heritance, as well in the time of his ancestor as in his own. Sec 629. J,idgment for treble damages and place wasted. K C c 116, s. 3. 6 Edw. I, c. 5. 20 Edw. I, st. 2. In'au'casesof waste, when judgment shall be against the defendant, the court may give judgment for thi ce the amount of the damages assessed by the ]ury, and also 248 COMMISSIONERS OF AFFIDAVITS. [Chap. 11. that the plaintiff recover the place wasted, if the said damages shall not be paid on or before a day to be named in the judgment. Sec. 630. Remedies for iujuries heretofore remediable by writ of nuisance. C. C. P., s. 387. Injuries remediable by the old writ of nuisance are subjects of action as other injuries; and in such action there may be judgment for damages, or for the removal of the nuisance, or for both. CHAPTER ELEVEN. COMMISSIONEES OF AFFIDAVITS. Section. 631. Clerks and commissioners to take and certify affidavits. 633. Governor may appoint commis- sioners to take and certify probate of deeds, &c. , in other states and foreign countries. 683. Such commissioner to take an oath, to be filed in secretary of state's office; his power and autl\ority. 634. Commissioners recorded by sec- retary of state and certified to clerks of courts, and there re- Section. corded; certified copy of ap- pointment or removal evidence. 635. Secretary of state to prepare list of commissioners. 636. List to be printed. 637. To be printed in all subsequent volumes of acts of assembly. 638. List to be conclusive evidence. 639. List of revocations to be pub- lished. 640. Clerk of a court of record in any other state, a commissioner of affidavits and deeds. Sec. 631. Clerks and commissioners to take and certify affidavits. R. C, c. 21, s. 1. 1818, c. 965, s. 1. 1876-'7, c. 207. The clerks of the supreme and superior courts and notaries public, are authorized to take and certify affi- davits to be used before any justice of the peace, judge or court of the state; and the affidavits so taken by a clerk shall be certified under the hands of the said clerk, and if to be used out of the county where taken, also under the seal of the court of which they are respectively clerks, and if by a notary, under his notarial seal. Chap. 11.] COMMISSIONERS OF AFFIDAVITS. 249 Sec. 632. Governor may appoint commissioners to take and certify probate of deeds, &c., in other states and foreign countries. B. C, c. 31, s. 3. 1830, c. 31, s. 1. 1873-'4, c. 73. 1873-'4, c. 173. The governor is hereby authorized to appoint and com- mission one or more commissioners in any foreign country, state or repubhc; and in such of the states ot the United States, or in the District of Columbia or any of the territories, as he may deem expedient, who shall continue in office for two years from the date of their ap- pointment, unless sooner removed by the governor, and shall have authority to take the acknowledgment or proof of any deed, mortgage or other conveyance ot lands, tenements, or hereditaments lying in this state, and to take the private examination of married women, parties thereto, or any other writings to be used in this state. And such acknowledgment or proof, taken or made in the manner directed by the laws of this state, and certi- fied by the commissioner, shall have the same force and effect for all purposes, as if the same had been made or taken before any competent authority in this state. Sec. 633. Such commissioner to talie an oath to be filed in secretary's ot&ce ; his power and authority. K. C, c. 31, s. 3. 1830, c. 31, s. 3. Every commissioner appointed by the governor afore- said, before he shall proceed to perform any duty by virtue of this chapter, shall take and subscribe an oath, before a justice of the peace in the city or county in which such commissioner shall reside, well and faithfully to execute and perform all the duties of such commis- sioner, according to the laws of North CaroHna ; which oath shall be filed in the office of the secretary of state: And thereupon he shall have full power and authority to administer an oath or affirmation to any person, who shall be willing or desirous to make such oath or affirma- tion before him, and to take depositions and to examine witnesses under any commission emanating from the courts of this state, relating to any cause depending, or to be brought in said courts, and every deposition, affi- davit, or affirmation made before him, shall be as vahd as if taken before any proper officer in this state. Young V. Rollins, 85-^85. 250 COMMISSIONERS OF AFFIDAVITS. [Chap. 11. Sec. 634. Commissioners recorded by secretary of state and certified to clerks of courts, and there recorded; certified copy of appointment or removal, evidence. B. C, c. 21, s. 4. 1830, c. 31, s. 4. 1873-'4, c. 73. It shall be the duty of the governor to cause to be re- corded by the secretary of state the names of the persons who are appointed and qualified as commissioners, and for what state, territory, county, city, or town; and the secretary of state, when the oath of the commissioner shall be filed in his office, shall forthwith certify the ap- pointment to the several clerks of the superior court of the state, who shall record the certificate of the secretary at length; and all removals of commissioners by the governor, and all commissioners whose commissions have expired by law, and which have not been renewed, shall be recorded and certified in like manner; and a certified copy thereof from the clerk, or a certificate of the appoint- ment or removal aforesaid from the secretary of state, shall be sufficient evidence of the appointment or removal of such commissioner. Sec. 635. Secretary to prepare list of commissioners. 1869-'70, c. 194, s. 1. 1873-'4, c. 73. The secretary of state shall, as soon as may be, prepare and cause to be printed a list of all persons who, since the first day of January, one thousand eight hundred and eighty-one, have been appointed commissioners of affi- davits and to take the probate of deeds in any foreign country and in the several states and territories of the United States and in the District of Columbia, under this chapter setting forth the states, tei-ritory or district or foreign country, for which such persons were appointed, and the dates of their respective appointments, and he shall send a certified copy of said list to every clerk of a court in this state. Sec. 636. List to be printed. 1869-'70, c. 194, s. 2. The secretary of state shall cause a copy of said list to be printed in each volume of the acts of the general assembly. Sec. 637. To be printed in all subsequent volumes of acts of assembly. 1809-'70, c. 194, s. 3. He shall also have printed in every subsequent volume of the acts of the general assembly a list as aforesaid of all such commissioners appointed since the date of the previous list. Chap. 12.] COMMON LAW. 251 Sec, 638. List to be conclusive evidence. 1869-'70, c. 194: s. 4. The list of commissioners so published in any volume of the acts of the general assembly shall be conclusive evidence in all courts of the appomtments therein stated, and of the dates thereof. Sec. 639. Liist of revocations to be published. 1869.'70, c. 194, s. 5. , The secretary shall also add to each of said lists that may be published after that provided for in this chapter a list of all such commissioners whose appointments have been revoked, or have resigned, removed or died since the date of the list previously published, as far as the same may be known to him, with the dates of such revocation, resignation, removal or death. Sec 640. Clerk of a court of record in any other state, k commissioner ofaffldavits and deeds. 1879, c. 77. Every clerk of a court of record in any other state ^hall have full power as a commissioner of affidavits ana deeds as is vested in regularly appointed commissioners of affidavits and deeds for the state. CHAPTER TWELVE. COMMON LAW. Section. 641. Common law declared to be in force. Sec. 641. Common law declared to be in force. R. C, c 23. 1715, c. 5, ss. 2, 3. 1778, c. 133. All such parts of the common law as were heretofore in force and use within this state, or so much of the common law as is not destructive of, or repugnant to or inconsistent with, the freedom and independence of this state and the form of government therein established and which has not been otherwise provided for in whole or in part, not abrogated, repealed, or become obsolete, are hereby declared to be in full force within this state. Sherrod v. Davis, 1 Hav., 337 (283); Shaw v. Moore, 4 Jon., 35; Winder v. Blake, 4 Jon., 332; In the matter of Bryan, Winst., 1; State v. Haugh. ton, 63—491. 852 CONSTABLES. [Chap. 13. CHAPTER THIRTEEN. CONSTABLES. [Constitution, Art. IV., s. 24.] Section. 643. Oath of office to be taken. 643. Power and duty of constables. 644. Constables to execute notices concerning matters witbin justice's jurisdiction, by de- livering copy; return evi- dence. Section. 6J.5. Special constables in certain cases appointed by justices. 646. Vacancies filled by board of commissioners. 647. Bond to be given by constable to be registered ; copy lo be read in evidence; fees, bow paid. Sec. 642. Oath of office to be taken. R. C, c. 24, s. 8. 1741, c. 24, s. 2. 1791, c. 342, ss. 1, 2. All constables, before they sliall be qualified to act, shall take before the board of county commissioners, the oaths prescribed for public officers, and also an oath of office. State V. Lane. 13 Ired., 253. Sec. 643. Power and dnty of constables. R. C, c. 24, s. 9. 1741, c. 24, s. 3. 1790, c. 330, s. 1. 1874-'5, c. 253. Constables are hereby invested with, and may execute the same power and authority as they have been by law heretofore vested with, and have executed; and, in dis- charge of their duties, they shall execute all precepts and process of whatever nature, to them directed by any jus- tice of the peace or other competent authority, Avithin their county or upon any bay, river or creek adjoining thereto; and the said precepts and process shall be re- turned to the magistrates, or other proper authority. State V. Ferguson, 76—197. Sec. 644. Constables to execute notices concerning mat- ters witbin justice's jurisdiction, by delivering copy ; return evidence. R. C, c. 24, s. 10. 1796, c. 466, s. I. 1800, c. 557, s. 1. Constables shall likewise execute within the places aforesaid, all notices tendered to them, which are re- quired by law to be given for the commencement, or in the prosecution of any cause before a justice of the peace; and the service thereof shall be made by deliver- ing a copy to the person to be notified, or by leaving a Chap. 13.] CONSTABLES. 253 cop, at his usual pl- ^^^^^l^'^S^ Si S-a1r.ero\/St. ;a^^^ iZt^L ^IZS;.n^ aofrto th, party at w.ose instance it was issued. Calvert V. Peebles, 71-374. sec, « j5. ^^^^'■'■^T:'Tivr.t,::^i:''o!°*'' "' "*°";tS abSc? oVS'S Int' oK?cSble, to any same m the absence '^^i^'-'-V^ , ,, , oblieed to execute fST^tuSf Kt^uSf; S 'a^;'cA.table would be liable to. Calvert v. Peebles, 71—374. Sec 646. Vacancies filled l>y board of commissioners. R C c. 24, s. 6. 1741, c. 34, s. 7. Upon'the death, failure to qualify or remova^ of J^^ constable out of the township m which he was electea or rp";Sldco.stab.etheb„artofco— ^^ SSL^a^raS^tnLfeVctrS-coustables. State V. Lane, 13 Ired., 353. sec. 647. Bond to be given by constable to be registered; copy to be read in evidence; fees, bow pa.d «• ^^ «' 34 s. 7. 1818, c. 080, s. 1. 1820. c. 1045. s. 3. 1833. c. 17. 1869-70', c. 185, s. 10- , , . .. The board of commissioners of each county shall re- nuirlof each constable, elected or appomted for a town- ship ?n entering upon the duties of his ofhco, to give a bond with good surety, Payable to the state of North Carolina ill a sura not less than five hundred dollars nor more than two thousand dollars, conditioned as we or ?he faithful discharge of his duty as constable, as for his dih^ntlv endeavoring to collect all claims put into his hands for collection, and faithfully paying over all sums Son received, either with or ^{th°ut smt unto^^l^^ persons to whom the same may be ^^e. Said bond sh^ui be duly proved and registered, and after legistiation filed i^n the office of the register of deeds; and certified conies of the same from the register's office shall be re- ceived and read in evidence in all actions and proceedmgs where the original might be. 254 CONTEMPT. [Chap. 14. The fees for proving and registering the bond of con- stable shall be paid by the constable. Dadev. Morris, 3 Mur., 14C; Governor v. Bailey, 3 Hawks, 463; Gov- ernor V. Franklin, 4 Hawks, 274; Governor v. Coble, 2 Dcv., 489; Gover- nor V. Davidson. 3 Dev., 361; Governor v. Carraway, 3 Dev., 436; State v. Halcombe, 2 Ired.,211; State v. Lackey, 3 Ired., 25; State v. Stepheus, 3 Ired., 92; State v. Sugg, 3 Ired., 9G; Williams v. Williamson, 6 Ired., 281; State V. Johnson, 7 Ired., 77; Miller v. Davis, 7 Ired., 198; State v. Wall, 9 Ired. 20; State v. Corpening, 10 Ired., 58; State v. Outland, 11 Ired.. 134; State V. Hooks, 11 Ired., 371; State v. McGowan, 12 Ired., 44; Morgan v. Home, Busb., 25; State v. Bean, Busb., 318; Grier v. Hill, 6 Jon., 572; Nixon V. Bagby, 7 Jon., 4; Hearne v. Parker, 7 Jon., 150; Dunton v.Doxey, 7 Jon., 222; Keid v. UumpLreys, 7 Jon., 258; CUipley v. Albea, 8 Jon., 204; Lipscomb v. Cheek, Phil., 333; Kivott v. Massey, 63—240; Taylor v. Gal braitb, 65—409; Slate v. Furguson, 76—199; State v. James, 78 — 155; King T. McLure. 84^153. CHAPTER FOURTEEN. CONTEMPT. Section-. 648. What constitutes contempt. 649. Contempt, its punishment. 650. Court may punish summarily. 651. Who may punish. 652. Commissioners may punish. 653. When offender to appear and show cause. Section. 654. Punish as for contempt. 655. Proceedings as for contempt, Low prosecuted. 656. What necessary to sustain pro- ceedinar. Sec. 048. What constitutes contempt. 1868-'9, c. 177 s. 1. 1870-'l, c. 216, ss. 3, 3. ' Any person guilty of any of the following acts may be punished for contempt: (1) Disorderly, contemptuous, or insolent behavior committed during the sitting of any court of justice, in immediate view and presence of the court, and directly tending to inteiTupt its proceedings, or to impair the re- spect due to its authority; State V. Mott, 4 Jon., 449. (2) Behavior of the like character committed in the presence of any referee or referees, while actually en- gaged in any trial or hearing pursuant to the order of any Chap. 14.] CONTEMPT. 255: court, or in the presence of any jury while actually sit- ?fng for the trial of a cause, or upon any inquest oi other ^TsT AnTb.^1'^^^^^^^^ or other disturbance dlSt^ tending to interrupt the proceedings of any court ; State V. Mott, 4 Jon., 449. (4^ Wilful disobedience of any process or order law- 'tVSftaZcf'^Sy^ffered by any person to the ^T^^^C -SXr^^^^^^^^^^^^ refusal of any per^ son to be sworn as a witness, or when so sworn, the like refusal to answer any legal and proper ^"ter^^tor^^^ (T) The Dublication of grossly inaccurate reports ot tne prSeetog's inSy courtf about any tn.al or other^m^^^^^^^^ pending before said court, made with intent to misiepie sent or to bring into contempt the said court; but no per- son ?an be punished as for a contempt in publishing a true, full and^air report of any trial, argument, decision ^^l)^Xbe;ilvfo? S auT oWcer of the court in any offi- ''fo^Jhrseveml acts, neglects and omissions of duty, mSeasances nisfeasancls, and nonfeasances, above rpecSand'described, shall be the only acts, neglects and omissions of duty malfeasances, misfeasances and nonfeSanTeswhich sLu be the sublet of co^tempo^ rmirf And if there be any parts ot the comnion law nowinft?ce nthis state which recognized other acts SSects, omissions of duty malfeasances, misfe^asa^c^^^ and nonfeasances besides those fPf ^^f ^^"^„^f '"^^^ above, the same are hereby repealed and annulled. Kobinsand Jackson. .. parte, 63-309; iH re. Mo-e 63-39J^Bigg^^^ varU 64-203; ex parte Schenck, 65-353; Kane v^Hay^ood. 06-1 Bond V Bond 69-7; Phillips v. Trezevant, 70-176; Dan.c-1 v. Owen -2-340 In re. B nnson. 73-278; Pain v. Pain, 80-322; ^- - Dav.s. 81-^- ^a Fontaine y. Undenvriters, 83-132; Cromartie v Comrs. 85—11. Baker V. Cordon, 86-116; Cromartie v. Com'rs, 87-134. Sec. 649. Contempt, its punishment. 1868-'9, c. 177, s 3 Punishment tor contempt for -atte^ «t fo*Jn the Ktlhe'dStSf 'tie Lnrt. The'fine not to ex- 256 CONTEMPT. [Chap. 14. ceed two hundred and fifty doUars, and the imprisonment not to exceed thirty days. Inre. Rhodes, G5-518; Jlorris v. Whitehead, 65—037; /» r«. Walker 83 — O."); Cromartiev. Com'rs, 85 — 211. ' Sec. 650. Court may piinisb summarily. K. O c XiAr s 117. 18«8-'9, c. 177,s. 3. Contempt committed in-the immediate view and pres- ence of the court may be punished summarily, but the court shall cause the particulars of the offence to be specified on the record, and a copy of the sam.e to be at- tached to every committal, attachment or process in the nature of an execution founded on such judgment or Ej'.parU Summers, 5 Ired., 149; Weaver v. Hamilton, 8 Jon., 347- State V. Mott, 4 Jon., 449; Piitchard v. Oldham, 8 Jon., 439. Sec. 651. Who may punish. 1868-'9, c. 177, s. 4. Every justice of the peace, referee, commissioner, clerk of the superior court, inferior court, criminal court or ]udgeof the superior court, or justice of the supreme court, shall have power to punish for contempt while sitting tor the trial of causes or engaged in official Qutiies. In re. Brinsbn, 73 — 378. Sec. 652. Commissioners may punish. 1868-'9, c. 177 S.5. * ' The board of commissioners of each county shall have power to punish for contempt for any disorderly conduct or disturbance, tending to interrupt them in the transac- tion of their official business. Sec. 653. When oftender to appear and show cause 1868-'9, c. 177, s. 6. Whenever the contempt shall not have been committed m the immediate presence of the court, or so near as to in- terrupt its business, proceedings thereupon shall be by an order directing the offender to appear, within reasonable time, and show cause why he should not be attached for contempt. At the time specified in the order, the person charged with the contempt may appear and answer, and if he fail to appear and show good cause why he should not be attached for the contempt charged, he shall be punished as provided in this chapter. •Chap. U.] CONTEMPT. 257 Sec 654. Punish as for contempt. 1868-'9, c. 177, s. 7. Every court of record shall have power to punish as for contempt : rn Anv clerk sheriff . register, solicitor, attorney, coun- sellor coWer^o^table, referee, or any other person in any manSer' selected or' appointed to Pf form any min^ sterial or iudicial service, for any neglect or violation ot duty oi any misconduct by which the rights or reme- dies of anv party in a cause or matter pending in such court ma/ be defeated, impaired, delayed or prejudiced for disobedience of any lawful order of any court or judge or any deceit or 'abuse of any process or order of any such court or judge; Cromartie v. Com'is, 85—211. (2) Parties to suits, attorneys, and all other pe/sons f or the non-payment of any sum of money ordered by such court, m^ca^ses where execution cannot be awarded for the collection of the same; (3^ All persons for assuming to be ofacers, attorneys or counsellors of the court, and acting as such without authority, for receiving any property or Person which may be in custody of any ofacer bv virtue of any order S process of the court, for unlawfully detaining any with ness or partv to any suit, while going to, remaimng at, OT returning from the court where the same may be set for trial? or for the unlawful interference with the pro- ceedings in any action; (4:) All persons summoned as witnesses in refusing or neglecting to obey such summons to attend, be sworn, or answer, as such witness; LaFontaine v. Underwriters, 83—133. (5) Parties summoned as jurors for impropriety, con- versing with parties or others in relation to an action to be tried at such court or receiving communication there- from; (*5) All inferior magistrates, officers and tribunals foi^ disobedience of any lawful order of the court, or for pro- ceeding in any matter or cause contrary to law attei the same shaU have been removed from their jurisdiction; (7) All other cases where attachments and proceedings as for contempt have been heretofore adopted and prac- ticed in courts of record in this state, to enforce the civil remedies or protect the rights of any party to an action. 258 CORONEE. [Chap. 15. Sec. 655. Proceedings as /or contempt, how prosecuted. 1868-'9, c. 177, s. 8. Proceedings as for contempt shall be prosecuted and carried on, as provided in other special proceedings. Sec. 656. What necessary to sustain proceeding. 1868- '9, c. 177, s. 9. To sustain a proceeding as for contempt, the act com- plained of must have been such as tended to defeat, im- pair, impede, or prejudice the rights or remedies of a party to an action then pending in court. CHAPTEE FIFTEEN. OOEONEE. Section. 657. Coroner to hold inquests; his duty; physician to be summon- ed at the request of the jury. 658. When there is no sheriff, coroner to act. 659. Jurors at coroner's inquest allowed compensation. Section. 660. Coroner to take proof of num- ber of days and mileage of jurors; audited by board of commissioners. 661. Bond given and recorded an- nually ; oath taken. 662. Bonds, to be registered. Sec. 657. Coroner to hold inquests; his duty; physician to be summoned at therequestof the jury. K. C., c. 25, s. 4. 4 Edw. I. St., s. 4. 1881, c. 263. 1881, c. 308. It shall be the duty of the several coroners, whenever it is made to appear, by the affidavit of some responsible person, that the deceased probably came to his death by the criminal act or default of some person or persons, to go to the place, where the body of such deceased person is and forthwith to summon a jury of six good and law- ful men; whereupon the coroner, upon oath of said juiy at the said place, shall make inquiry when, how, and by what means such deceased person came to his death, and his name if it was known, together with all the material circumstances attending his death. And if it shall appear that the deceased was slain, then who was guilty either as principal or accessory, if known, or in any manner the cause of his death. And as many persons as are found Chap. 15.] CORONER. 259 culDable, by inquisition in manner aforesaid, shall be taken and delivered to the sheiitf and committed to jail; and snch persons as are found to know anything of the matteis aforesaid and are not culpable themselves shall be bound in a recognizance with suthcient surety to appear at the next superior court to give evidence; of all which matters and things the coroner must note up a record of his inquisition signed by the lurors, and return the same to the next superior court of his proper county. Tt shall be the duty of every coroner, when the jury in- vestigating the case shall require it, to summon a phy- Sian or surgeon, who shall be paid for his attendance and service such sum as the court may deem reasonable. State V. KnigUt. 84—789; State v. Morgan, 85-581; Ibid, 86-733. Sec 658. Where there is no sheriff, coroner to act. K. C, e. 25,s.5. 1779, c. 156, s.l. ,.^ . . If at any time there be no person properly quahhed to act as sheriff in any county, the coroner of such county is hereby required to execute all process, cml or criminal lawfully issuing on judgments, orders, or sentences of any court, and in all other things to act as sheriff, until some person shall be appointed sheriff in said county; and such coroner shall be under the same rules and regula- tions, and subject to the same forfeitures, fines, and pen- alties as sheriffs are by law, for neglect or disobedience of the same duties. Wiltkowsky V. Wasson, 69-38; .Edwards v. Tipton, 77-222; Teargin V. Siler, 83—348. Sec. 659. Jurors at coroner's inquest allowed compensa- tion. 1881, c. 53, s. 1. . All persons who may be summoned to act as jurors in any Inquest held by a coroner over dead bodies, and who, in obedience thereto, shall appear and act as such jurors, shall be entitled to the same compensation in per diem and mileage as is allowed by law to jurors acting in the superior courts. Sec. 660, Coroner to take proof of number of clays and mileage of jurors; audited by board of commissioners. 1881, c. 53, s. 3. The coroners of the respective counties are hereby authorized and empowered to take proof of the number of davs of service of each juror so acting and also ot the number of miles traveled by such juror in going to and returning from such place of inquest, and shall hie with 260 CORPORATIONS. [Chap. 16. the board of commissioners of the county a correct ac- count of the same, which shall be, by such commission- ers, audited and paid in the manner provided for the pay of jurors acting in the superior courts. Sec. 661. Bond given and renewed annually; oath taken. B. C, c. 25, s. 2. 1791, c. 342, ss. 1, 2. 1820, c. 1047, ss. 1, 2. Every coroner shall execute an undertaking for the faithful discharge of the duties of his office with good surety, in the sum of two thousand dollars, (or in a larger sum if required by the court,) payable to the State of North Carohna and approved by the board of county commissionere, which he shall annually renew, or no longer hold said office. He shall also take the oaths of public officers and an oath of office. Mabry v. Turrentine, 8 Ii-ed., 201. Sec. 662. Bonds to be registered, 1860-'61, c. 18. All official bonds of coroners shall be duly proved, cer- tified, registered and filed as sheriffs' bonds are required to be; and certified copies of the same, from the register's office, shall be received and read in evidence in the hke cases, and in like manner as such copies of sheriffs' bonds are now allowed to be read in evidence. Greene V. Wynne, 66—530; Heilig v. Lemly, 74r— 250; Yeargin t. Slier, 83—348; State v. Knight, 84—739. CHAPTER SIXTEEN. COEPOEATIONS. Section. 663. General powers of corpora- tions. 664. By laws to determine the man- ner of calling and conducting meetings, &c. 665. First meeting, how notified wlien not provided for speci- ally. Section. 606. Land may be held and con- veyed. 667. Corporations to continue three years after charter expires, to close their concerns. 668. When corporations expire, &c., receivers or trusleesappointed to settle their aSairs; their powers. Chap. 16.] CORPOEATIONS. 261 Section. 669. Jurisdiction over receivers or trustees. 670. Receivers to pay debts and dis- tribute surplus. 671. Wliat executions to issue, aud ■wliat may be sold. 673. Executions levied on personal property; property may be sold independent of the fran- chise and real property be- longing to such corporation. 673. Who shall be deemed the high- est bidder. 674. Officer making sale to convey the right of fare and toll, and deliver possession of property connected with franchise. 675. Purchaser of franchise to have same remedies as corporation for damages. 676. Liabilities of corporation to continue after sale. 677. How certain business and other corporations may be formed; corporations to enter into arti- cles of agreement; what arti- cles to set forth. 678. Articles to be proved and re- corded; book to be kept for that purpose; index to be made; twenty-five dollars to be collected by clerk for ben- fit of school fund; penalty for not collecting, &c. ; sureties on clerk's bond responsible, and also a misdemeanor. 679. Clerk to issue letters declaring its incorporation ; notice there- of to be published in some newspaper; notice to set forth substance of articles. 680. Fees of clerk. 681. No dividend, if debts exceed two-thirds of assets. 683. Copies of letters admissible in evidence, and prima facie evi- dence of incorporation. Section. 683. Contracts exceeding one hun- dred dollars to be in writing. 684. Such corporations forbidden to bank. 685. How corporations may convey by deed; void as to existing creditors. 686. Attorney gereral may bring an action to restrain corponilions from exercising powers ni.t granted, and to bring certain officers to account, &c. ; man- agers of corpoiations person- ally liable for fraud. 687. Corporations, how long to exist; dissolution not to extinguish debts. 688. Two years of non-user a for- feiture of charter. 689. Shares in corporations personal estate. 690. Corporations may he'd not over thirty years; when lauds may be forfeited to the state. 691. Duty of grand jury and solici- tor. G93. Lands how sold, &c. 693. Existing corporations affected. 694. How corporations may be dis- solved; abuse of power; non- user; insolvency; criminal conviction. 695. How summons in such cases served. 696. Tax on bill for incorporatiOQ presented to general assem- bly. 697. Sales under deeds of trust. 698. Corporation created by sale shall succeed to rights, &c., , and when it expires, property to go to pay debts, &c. 699. Tax collectors to levy upon and take into possession property of corporations, &c.. whether in hands of receiver or not. COEPOEATIONS. [Chap. 16. Section. Section. 700. Not necessary to obtain order of court for the payment of tax, if property in hands of receiver. 701. Tliis chapter to apply to all cor- porations, unless otherwise de- clared lierein, or in the chapter on railroads and telegraphs. Passim, Railroad Co. v. Leach, 4 Jon., 340; Bank v. Charlotte, 85—433. Sec. 663. General powers of corporations. R. C, c. 26, s. 1. 1850, c. 50. All corporations shall, where no other provision is specially made, be capable in their corporate name to sue and be sued, appear, prosecute and defend to final judg- ment and exec-ution, in any courts or elsewhere; to have a common seal, which they may alter at pleasure; to elect, m such manner as they shall determine to be proper, all necessary officers, and to fix their compen.'^a- tion and define their duties and obligations; and to make by-laws and regulations, consistent with the laws of the state, for then- own government, and for the due and orderly conducting of their affairs, and the management of their property. Mauney v. Motz, 4 Ired. Eq., 195: Thomp.<;on v. Guion, 5 .Ion. Eq., 113; R R. Co. V. "Wright, 5 Jon., 304; R. R. Co. v. Thompson, 7 Jon., 887. Sec. 664. By-laws to determine tbe manner of calling and conducting meetings, &c. K. C, c. 26 s 3 1850. c. 50. ' All corporations may, by their by-laws, where no other provision is specially made, determine the manner of calling and conducting all meetings; the number of members that shall constitute a quorum; the number of shares that shall entitle the members to one or more votes; the mode of voting by proxy; tbe mode of selling shares for the nonpayment of assessments; and the tenure of office of the several officers; and the manner in which vacancies in any of the offices shall be filled till a regular election, and they may annex suitable penalties to such by laws, not exceeding in any case the sum of twenty doJJai's for any one offence: Provided, that no such by-law shall be made by any corporation repugnant to any provision of its charter: And provided further, that if the chief or other authorized officer of any com- pany shall issue any certificate of stock in any other way or to any other person i^lian as provided by the by-laws of said company, the officer issuing such certificate shall be guilty of a misdemeanor, and shall be punished by Chap. 16.] CORPORATIONS. 263 fine or imprisonment, or both, at the discretion of the court. sec 665.F..^».ee«n. h.woo.meawJ.nno.J.- pajSr printed nearest to the proposed place of meeting. Sec. 660. land maj be heM and conveyed. K. C, c. 26. Evety corp'o'ra'tiofmay hold lands to an anwunt sJ^LVlt:d^*dr5,rcMVreSSt g".| term than thirty years. sec. 667. corporations to continue three years after char- ter expires, to close their concerns. R. C, c. ^O, s. &. All corporat ons, whose charters shall expire by their £ifnt^ieSes^s\:rnSA!,src''o';;^^ ll»iEs„io's;irs?reV™r"V^ is|t£^"^ssftosiu>eS"?cp,?|o sfe:Si>-rbnr;rtorr|r^^^^ continuing the £>si"«^^ f"'""'* ^"'* "O'P"^"™ '"^^ have been established. , qi_ar7- T>nh Von Glalm v. Harris, 73-323; Von Glahn v. DeRosset. 81-467. Dob. son V. Simonton, 86—493. Sec 668. When corporations expire, &c., receivers or ^ ;r«fteesTppointed to settle their afiairs ; theu- powers. When the^charte'r of any corporation ^l^^^^^ ^^Pif^f^^.^;. annulled as provided in the precedmg section, oi the cor- 26i COEPOEATIONS. [Chap. 16. poration is insolvent, or in imminent danger of insolv- ency, or has forfeited its corporate rights, either for non- user or abuser, or any other cause, the judge of the superior court having jurisdiction of the appointment of receivers as provided in chapter ten, on apphcatioa ot any creditor of such corporation, or of any stock- holder or member thereof at any time within said three years, or if for insolvency within three years from the time of said insolvency, may appoint one or more persons to be receivers or trustees of and for such coiporation ta take charge of the estate and effects thereof, and to col- lect the debts and property due and belonging to the cor- poration, with power to prosecute and defend, in the name of the corporation, or in the name of such receivers or trustees, ail such actions as may be necessary or proper for the purpose aforesaid ; and to appoint agents under them, and to do all other acts which might be done by such corporation, if in being, that may be necessary for the hnal settlement of the unfinished business of the cor- poration; and the powers of such receivers may be con- tinued beyond the said three years, and as long as the coiu-t shall think necessary for the purposes aforesaid. Fox V. Horah, 1 Ired. Eq., 358; Von Glahn v. DcRosset,8l— 4G7; Attor- ney Geneial v. Roanoke Nay. Co., 84—705; Young v. Rollins, 85—485- Dobson T. Simonton, 86 — 493. ' ' Sec. 669. Jurisdiction over receivers or trustees. R. C c. 26, s. 7. * The court or judge shall have jurisdiction of such appli- cation and of all questions arising in the proceedings thereon, and make such orders, injunctions and decrees therein as justice and equity shall require. Sec. 670. Receivers to pay debts, and distribute surplus. R. C, c. 26, s. 8. The said receivers shall pay all debts due from the cor- poration, if the funds in their hands shall be sufficient therefor; and if not, they shall distribute the same rata- bly among all the creditors, who shall prove their debts in the manner that shall be directed by any order or de- cree of the court for that purpose; and if there shall be any balance remaining after the payment of said debts, the receivers shall distribute and pay the same to and among those who shall be justly entitled thereto, as hav- ing been stockholders or members of the corporation, or their legal representatives. Chap. 16 ] CORPORATIONS. 265 Sec. 671. What executions to issue, and what maybe sold. K. C, c. Se, s. 9. 1820, c. 1050, s. 4. If any iudginent or d^'cree shall be tendered against a corporation, the plaintiff may sue out such executions against the property of a corporation as is provided m this code to be issued against the property of natural persons, which executions may be levied as well on the current money as on the goods, chattels, lands and tene- ments of such corporation; and if the judgment or de- cree be against any corporation authorized to receive tare or tolls, the franchise of such corporation, with ail tlie rights and privileges theieof, so far as i elates to the re- ceiving of fare or tolls, and also all other corporate prop- erty, real and personal, may be taken on execution and sold under the rules regulating the sale of real estate. State V. Kives. 5 Ired., 297; State y. R. R. Co., 72-634; Gooch y. Mc- Gee, 83—59; Attorney General y. Roanoke Nav. Co., 84-705. Sec. 672. Executions levied on personal property ; prop- erty may be sold independent of the franchise and real property belonging to such corporation. When an execution has been sued out and levied upon the personal property of a corporation, such personal property may be sold, and the title to such property shaJl pass to the purchaser at said sale, independent of the franchise and real estate of such corporation. Attorney General v. Roanoke Nay. Co., 84r-705. Sec. 673. Who shall be deemed the highest bidder. K. C.,c. 26, s. 10. In the sale of the franchise of any corporation, the person who shall satisfy the execution with all costs thereon, or who shall agree to take such franchise for the shortest period of time, and to receive during that time all such fare and toll as the said corporation would by law be entitled to demand, shall be considered as the highest bidder. Taylor v. Jerkins, 6 Jon., 316; Goocli v. McGee, 83-59; Attorney Gen- eral V. Roanoke Nav. Co., 84—705. Sec. 674. Officer making sale to convey the right of fare and toll, and deliver possession of property connected with Irauchise. K. C, c. 26, s. 11. The officer making sale shall by deed convey to the purchaser all the immunities and privileges which by law belong to the corporation, so far as relates to the right of demanding fare and toil; and the officer shall, ira- 12 266 CORPORATIONS. [Chap. 16. mediately after such sale, deliver to the purchaser pos- session of all the corporate real property connected with the franchise belonging to such coporation, in whatever county the same maybe situated: and the purchaser may thereupon demand and receive to his own use all the fare and toll which may accrue within the time limited by the term of his purchase in the same manner and under the same regulations as such corporation was before author- ized to demand and receive the same. Gooch V. McGee, 83—59; Attorney General v. Roanoke Nav. Co., 84—705. Sec. 675. Purchaser of a franchise to have same remedies as corporation for damages. R. C, c. 26, s. 12. Any person who may have purchased, or shall, under this chapter, hereafter purchase the franchise of any cor- poration, and the assignee of such person may recover in such action as the corporation might have brought, any penalties imposed by law for an injury to the franchise or for any other cause, and which such corporation would have been entitled to recover, durmg the time limited in the said purchase of the franchise; and during that time, the corporation shall not be entitled to prosecute for such penalties. Attorney General v. Roanoke Nav. Co., 84r— 705. Sec. 676. Liabilities of corporation to continue after sale R. C, c. 26, s. 13. The corporation whose franchise shall have been sold as aforesaid shall in all other respects retain the same powers and be bound to the discharge of the same duties and liable to the same penalties and forfeitures as before such sale. Sec 677. How certain business and other corporations may be formed; corporations to enter into articles of agreement; what articles to set forth. R. C, c. 26, s. 14. 1866-'7, c. 78. 1871-'2, c. 19J>, s. 1. Any number of persons not less than three who may be desirous of engaging in any business not unlawful, except building railroads, or banking or insurance, at any place within the state, may, if it please them, become in- corporated in the manner following, that is: such per- sons shall, by articles of agreement, under their hands and seals, set forth before the clerk of the superior court of the county where such mining is to be conducted or manufactory established, and in case of any other asso- ciation, before the clerk of the superior court of the Chap. 16.] CORPORATIONS. 267 county where the meetings may be held: 1. The corpo- rate name. 2. The busmess proposed. 3. The place where it is proposed to be carried on. 4. The length of time desired, not exceeding thirty years, except as to mining corporations, the term for which shall not exceed sixty years 5. The names of persons who have sub- scribed And, in the case of mining and manufacturmg, shall also state: 6. The amount of capital; and 7. The number of shares, and the amount of each (the same not less than fifty doUars each). Sec. 678. Articles to be proved and recorded; book to be kept for that purpose; index to be made; twenty-tive dollars to be collected by clerk for benefit of school fund; penalty for not collecting, &c.; sureties on clerk's bond responsible, and also a misdemeanor. The said articles of agreement, after having been proved by a subscribing witness, or acknowledged before the derk, shall be recorded by the said clerk in a book to be kept for this purpose in his office and marked " record of incorporations," and said clerk shall keep in said book an alphabetical index of the names of the corporations: Provided, that the said clerk, before recording the said articles of agreement, shall collect from the persons sign- ing said articles, the sum of twenty-five dollars, to be paid by the said clerk to the treasurer of the county, for the benefit of the pubhc school fund of the county; and the said clerk shall, at the next regular meeting of the board of commissioners of the county, report the tact of such collection and payment to the treasurer, to the said board, to the end that the said treasurer may be charged with the same: Provided further, that if said clerk shall fail to collect said sum of twenty five dollars, or when collected, shall fail to pay over the same to the county treas>irer, or shall fail to report the fact of such collection and payment to the board of commissioners, he shall forfeit and pay the sum of fifty dollars, one-half to the use of the public school fund of the county, and the other half to the person suing for the same; and his sureties on his official bond shall also be liable for said penalty, and said clerk shall be guilty of a misdemeanor, and fined not exceeding fifty doUars. Sec. 679. Clerk to. issue letters declaring- its incorpora- tion; notice thereof to be published in some newspa- per; notice to set forth substance of articles. K. C, c. 26,s. 16. 1852, c.67, ss. 1, 3. 1853, c. 81, ss. 1, 3, 3. After the said articles of agreement shall have been 2G8 CORPOEATIONS. [Chap. 16. recorded, the clerk under the seal of the superior court, shall issue letters declaring said persons and their suc- cessors to be, and thenceforth they shall be, a corpora- tion, for the purpose and according to the terms pre- scribed in said articles, and shall cause notice tlieroof to be pubhshed in some newspaper, if any there be, printed in the county, or nearest to the place where said articles may be recorded, in which shall be set forth the sub- stance of the articles, and (in case of companies having a capital,) the amount of capital, and value of shares. Young V. Rollins, 85—485. Sec. 680. Fees of clerk. K. C. c. 26, s. 16. 1853, c. 67, s. 3. 1852, c. 81, ss. 4, 10. Evei-y company incorporated by letters under articles of agreement, shall pay the clerk of the superior court a fee of two dollars for taking the probate and recording the articles of agreement, also the expense of publica- tion, and one dollar for the certificate declaring its incor- poration. Sec. 681. No dividend, if debts exceed two-thirds of as- sets. R. C, c. 26, s. 18. 1852, c. 81, s. 5. No such company shall declare any dividend, when its debts, whether due or not, shall exceed two-thirds of its assets. Sec. 682. Copies of letters admissible in evidence, and prima facie evidence of incorporation. R. C, c. 26, ss. 19, 20. 1852, c. 81, ss. 7, 8. All f uch letters issued under the authority of this chap- ter, and copies thereof certified by the clerk of the supe- rior court of the county where the same are recorded, shall in all cases be admissible in evidence; and the letters aforesaid shall, in all judicial proceedings, be deemed 'prima facie evidence of the comi^lete organization and incorporation of the company, purporting thereby to have been established. Sec. 683. Contracts exceeding one hundred dollars to he in writing. 187 1-'2, c. 190, s. 23. Every contract of eveiy corporation, by which a liabil- ity may be incurred by the company exceeding one hun- dred dollars, shall be in writing, and either under the common seal of the corporation or signed by some officer of the company authorized thereto. CHAP. 16.] CORPOEATIONS. 269 sec 684. SUCH corporations forbidden to bank. B.C.. ness may require. sec. 685. HOW corporations may convey by ff^^^^ to existing creditors. B. C, c. -o, s. — . Aiy corporation may fonvey lands and all other^prop- erty which i^V^'^^f«":f,^3f.,^//2aledw^th the common and sale, or other F^P^^^?^^' f^^ nres dins; member or seal and signed by he President oi P f I'J^'"" ^^^ion, and ?~r„?:llSSr£rytratteTti;e .eg&atloa of said deed, as required by law. Taylor v. Heggie, 83—244. sec. 686. Attorney general --y^^^Vowe'r^no" grant'- S[^n;;^En^:SSot^-':^=f * J, ^- ge;rof Corporations personally liable for fraud. B. C, ^ oA a ««4 1831, c. 24, s. 5. It -shaU Le the duty of *e f "mey J-eral to bnng an son from exercismg corporate fi^ichses not &r 2^0 CORPOEATIONS. [Chap. 16. such officers or trustees upon proof of gross misconduct- to secure, for the benefit of all interested, the property or tun ds aforesaid; to set aside and resti-ain improper ahena- tious thereof, and generally to compel the faithful per- tormance of duty, and prevent all malversation, pecula- tion and waste. And m case of fraud by the president directors, managei-s, or stockholdei-s, in any corporation' the court shall render personally liable to creditors and others injured thereby such of the directors, and stock- holders as may have been concerned in the fraud. Atto. Gen. v. R. R. Co., 6 Ired., 456; R. R Co. v. Leach, 4 Jon 340- Bank v. Charlotte, 85^433. Sec. 687. Corporations, how long to exist; dissolution not to extinguish debts. K. C, c. 26, s. 29. 1836, c. 10 s. 1. * No body corporate, hereafter to be established, shall exist for a longer term than sixty years, unless otherwise provided in the act creating the same; but in the case of a dissolution of a corporation by any judgment or decree the debts due to, or from it, shall not be extinguished. ' Von Glahn v. DeRossett, 81 — 467. Sec. 688, Two years of non-user a forfeiture of charter K. C, c. 26, s. 30. 1836, c. 10, s. 2, When any act shall have passed, or letters of agreement as provided in this chapter, shall have been recorded' creating a body corporate, and the corporators, for two years, shall neglect or fail to organize the company, and carry into effect the intent of the act; or when organized if they at any time for two years together shall cease to act, then such disuse of their corporate privileges and powers shall be deemed and taken as a forfeiture of the charter. Sec. 689. Shares in corporations personal estate. B. C c. 26,s. 31. 1836, c. 11. ' The shares of stock in all incorporated joint-stock com- panies shall be deemed personal estate. Redding v. Allen, 3 Jon. Eq., 358. Sec. 690. Corporations may hold not over thirty years ; when lands may be forfeited to the state. 1871-'2 c' 199, s. 29. ' * Any corporation may take a mortgage upon any quan- tity of land to secure a debt owing to the corporation, and may take a conveyance of any quantity of land in Chap. 16.] COBPOEATIONS. 2" partial o,- total satMaction of a debt to *» -'^PfSj Ld may paichase f^yj^'-^^fl^^ JSpoJatfon or at any e3<|cution against » f "»' o "\» ™jPbto, „£ the corpo- individual sale ot tlie P':?Pf' >^,";k.,j,,„ .,,„1i land to a ration; but 'he corporation pui<,h^mgsu^^^^^^ quantity exceeding, with its ™'? PiTS hilding th4 ?hree hundi^ed ^^^^VS ye^t-, torn fte da?e ot^such rdSe rranlSiiKlSased in excess of the F4 SSe-o?STst^^^^^^^^^ SlorpSatro'n P-^fW -h >«ij^n Hs pSiSS Sf,eV?;--^'eef f a"f IIS^S?^ t ^Sd iJ^rhX'Xl^P^'htfbuUoTlttritationherein contained. Sec. 691. Duty of grand jury aud solicitor. 1871-'3, c. time are he.d ^Y f^y co p solicitor, either chapter and It shall be^^^^^^^^^^^ Proceedings for tT^SSe oV a^sS lands, and to report the same to the governor from time to time. Sec 692. Lands, bow sold, &c. 1871-'2 c. 199, s. 31. The lands recovered by the state under this chapter Sec. 693. Existing corporations affected. 1871-'3,c. 199, 1 SSI c 124. Al'l corporations (except railroad mining manufac- nosse4ed for a longer time than th rty years of any lands ?r tenements, exceeding three ^^-^if^^tTsZh'^ls^^ are required, within said time, to dispose of such excess. 2^2 COEPORATIONS. [Chap. 16. Sec. 694. How corporations may be dissolved ; abuse of ^l^^/,l^o^-^^^^^r; insoUency; criminal conviction. 1871-'3, c. 199, ss. 33, 34, 35, 36, 37. All corporations formed under this chapter may be dis- solved by special proceedmg, instituted by the company or by any corporator or by any judgment creditor, whosi 5^??^ n, r^"^"^ *^ *'■ ^ f^'T^y "' '"'^'''^ the coip'oratiou Snti «^y «i;Pf^cipal place of business, shall be re- turned unsatisfied, or by the authority of the attorney SterlSiotdr??^if : ^^^ ''^'^' ^- ^^^ — ^-iZ t.,£h/°'" f""! ^^"^^ ""{ '^^ P^^^^'s *o *he injury of the public or of the corporators, or of its creditors or debtors- coiicutlvdy"""'" '' ''' P'"'^^ ''' '^' y^-'^ - "^«- (3) For insolvency manifested by the return of an ex- ^n^w'i^"'^*,'^^®'^ ""l"?^ ^ judgment against the company, docketed in the superior court of the county where it has Its only or prmcipal place of business ; ^^e^e ii nas (4) Upon any conviction of the company of a criminal offence if such offence be persistent. ^^iimmai Sec. 695. How summons in such cases served. 1871.'2 rnYj!?''v'^^ fr"^^ proceedings for the dissolution of a corpoiation, the summons shall be served on the chief or other officer of the corporation authorized for that pur- pose as writs of summons are required to be in like cases and shall be served on the corporators, creditors/deS and others interested in the affairs of the company by publishing a copy thereof at least weekly for not'less than threesuccessive weeks in some newspaper printed in the county m which such corporationhas its only or prin Si ^i^T?l '^",«"^ess, or if there be no such newspaper thednofn/^h"^^ P.°^*^°^ %^°P->^ «f «^«h summonses the door of the court house of such county, and publish- iBg a copy thereof for the time and in the manner afore- said in the nevvspaper published nearest the county seat of the county in which such corporation has its only or principal place of business, or in some newspaper pub- lished m the city of Raleigh; and such publication s^hLll be deemed and held sufficient service on all the corpora tors, creditors of, or dealers with, such ccrporationS all such corporators, creditors or dealers or other parties paSes fh^F f^'Tv,'"^ ^"i said proceedings and iKone paities thereto for themselves, or for others in like in- Chap. 16.] CORPORATIONS. 273 terest, under such rules as the court for the purpose of justice shall prescribe. Sec 696. Tax on bills for incorporation presented to gen- ;ral assembly. 1881, c. 116. Sch. C, s. O. 1883. c. E^very biU introduced in either ^^^^^^ /^ ,,^1^^/^! assembly to incorporate any company, or foi the benent thereof or to ameSd any act relating to such company or CO ;oiation shall be accompanied by a rece^promh ^tate treasurer for one hundred doUars. ilus seciioii S nit bTconstrued to apply to benevolent dwitable HtPravv or religious associations, nor to rail roaa compa Sesnoi companies to bmld turnpike roads, nor bridges over non-navigable streams. Sec 697. Sales under deeds of trust. 1872-'3, c. 131, s. 1. If a sale be made under a deed of trust or mortgage ex- ecuted by any corporation on all its works and property, indthe?ebe^ a conveyance pursuant thereto such sale aSd conveyance shall pass to the purchaser at the sale not only the works and property of the corporation as they were aTtheti„,e of miintnhe deed of t™stormo.^^^ hnt any works which the corporationmay attei that time and beLrthe sale have QO-^ructed and a^l other px^p^ crty of which it may be possessed at the time ot tne saie otifer than debts du^ to it. Upon such conveyance to the purchaser, the said corporation shallji so /acto solved, and the said purchaser shall to/j'/^.^^^,^^^ corporation by any name which may be set f o th ^^ the ^aid rnnvevance or in any writing signed by him and recoi S^n the 'sanie mamer in which the conveyance shaU be recorded. GoocU V. McGee, 83—59. Sec 698. Corporation created by sale shall succeed to ;i!^hts &c., and when it expires, property to go to pay debts,' &c. 1872-'3, c. 131, ss. 3, 3. . v. The corporation created by, or in consequence of, such sale and cTveyance shall succeed to aU such franchises Shts and privileges, and perform all such duties as would have been, ov should have been, performed by the Tst conSfon.'but for such sale and conveyance, save oit that the co;«,ation so created, shall not be enti led ?o the debts due fo the first corporation and shah not be Hflble for any debts of, or clamis against, the hist corpo ration, whicl may not be expressly assumed m the con- 2'* CORPOKATIONS. [Ch.4J>. 16. S;fif ''^P''''^''''^^ ' "*^'' ^^'^" *'^« property, fmnchise or protits of such new corporations be exempt from taxa- tioii. And that, the whole profits of tJie business done by such corporation shaJl belong to the said purchaser and his assigns. His interest in the corporation shall be personal estate and he or his assigns may create so many shares ot stock therein, as he or they may think proper, not ex- ceeding the amount of stock in the first coiporation at the time of the sale, and assign the same in a book to be kept for that purpose. The said shares shall there- upon be on the footing of shares in ioint stock compa- '^}^^,^^']f^^^y^, except only, that the first meeting of the stockholders sha 1 be held on such day, and at suSh place as shall be fixed by the said purchaser, of which notice sball be published for two weeks in a newspaper And when a corporation shaU expire or be dissolved, or its cor- porate rights and privileges shall have ceased, all its works and property and debts due it, shall be su'«ject to the pay- ment of debts due by it, and then to distribution among tbe members according to their respective interests ; and such corporation may sue and be sued as before, for the purpose of coUectmg debts due it. prosecuting rights under previous contracts with it, and enforcing its liabil- il^u^. distributing the proceeds of its works; property and debts among those entitled thereto. Gooch V. McGee, 83-59; Young v. Rollins, 85-^85. Sec. 699. Tax collectors to levy upon and take into possession property of corporations, &c., whether in hands of receiver or not. 1879, c. 245, s. 1. Whenever taxes are duly assessed, charged and ex- tended against any corporation having chartered rights or doing business in this state, or having property in this state, or against any person resident in this state or doing business or having property in this state, and the tax list is in the hands of any officer or tax collector, it shall be competent for such officer or tax collector when- ever said taxes, whether hsted or unlisted, are due and unpaid, to levy upon, seize and take into his possession such part ot the property belonging to such person or corpora- tion as may be necessary to pay such taxes hsted or un- listed, whether the property of such corporation or per- son be in the hands of a receiver duly appointed or Chap. 16.] CORPORATIONS. 275 Sec. 700. Not necessary to obtain order of court for the payment of tax. if property in hands ol receiver. 1879, c. 345, ss. i!, 3, 4. In all cases provided for in the preceding section it shaU not be necessary for such officer or tax collector to apDly to and obtain from the court appomtmg such re Sve^r, or having jurisdiction of th« property or o he receiver, an order for the payment of such taxes, but the sfr^e may be coUected as aforesa.d, by distraint and seizure as if the property or corporation was not m the hands of a receiver. This section and the preceding sec- t£n shall apply to all taxes, whether state, county, town or municipal; and shall be liberally construed m favor of, and in furtherance of, the collection of said taxes. Sec. 701. This chapter to apply to all corporations, unless otherwise declared herein, or in the chapter on rail- roads and telegraphs. This chapter, unless otherwise declared herein or in the chapter entitled Railroads and Telegraphs shall apply to all corporations, whether created by special act ot as- sembly, by letters of agreement under this chapter, or bj Se chapter entitled Railroads and Telegraphs And this chapter and the chapter on Railroads and Telegraphs, so fir as the same are applicable to railroad corpora ions shall govern and control anything in the specia act of assembly to the contrary notwithstandmg, unless in S act of the general assenably creating the corpora^ tion, the section or sections of this chapter, and of the chapter entitled "Railroad and Telegraph Companies " Stended ?o be repealed, shall be specially referred to by number, and as such, speciaUy repealed. 276 COUNTIES, ETC. [Chap. 17. CHAPTER SEVENTEEN. COUNTIES, COUNTY COMMISSIONEES AND COUNTY GOVEENMENT. Section. 703. Every county a body politic. 703. How its powers can be exercised. 704. Corporate powers. 705. Proceedings by or against a county. 706. Meetings of the board. 707. Powers of the board of com- missioners. 708. When the board to qualify and enter upon cflice. 709. Compensation of tlie board. 710. Compensation of clerk of the board. 711. Neglect of duty by commis- sioner a misdemeanor. 713. Duly of clerk. 713. Clerk to publish an annual statement. Section. 714. Neglect of clerk to publish statement a misdemeanor. 715. Certified copies of records of board may be read in evidence. 716. The board to be elected by the justices of the peace. 717. Meetings of justices of the peace. 718. Purchase of county indebted- ness. 719. Vacancies in boards of county commissioners to be filled by justices of the peace. 730. The board of commissioners to flu certain vacancies. 731. Disputed lines between coim- ties, how .settled. 733. The boards of ccirunissioners to be sworn and paid. Sec. 702. Every county a body politic. 1868, c. 20, s. 1. 187C-'7, c. 141, s. 1. Every county is a body politic and corporate, and shall have the powers prescribed by statute, and those neces- sarily imphed by law, and no other. Winslow V. Com'rs, 04—318; Salterthwaite v. Com'rs, 76—153. Sec. 703. How its powers can be exercised. 1868, c. 20. s. 2. Its powers can only be exercised by the board of com- missioners, or in pursuance of a resolution adopted by them. ^ Pegram v. Com'rs, 65—114 Sec. 704. Corporate powers. 1868, c. 20, s. 3. A county is authorized: (1) To sue and be sued in the name of the board of commissioners; (2) To purchase and hold lands within its limits and Chap. 17.] COUNTIES, ETC. 277 for the use of its inhabitants, subject to the supervision of the general assembly; „„.i Vir.i^ (3) To make such contracts, and to purchase and hold such personal property, as may be necessary to the ex- ^'•(S'TomareTud] orders for the disposition or use of its property as the interest of its inhabitants reqmre. Winslow V. Com'rs, 64-218; Gooch v. Gregory, 65-142. Sec. 705. Proceedings by or against a county. 1868, c. All actions or proceedings by or against a county, m its corporate capacity, shall be in the name of the board of commissioners of the county. „ , ^ , Pegram v. Com-rs, 65-114; Askew v. Pollock, 66-49 ; Steele v. Comrs, 70—137; Jones V. Com'rs, 85—278. Sec. 706. Meetings of the board. 1868, c. 20, ss. 5, 6, 7. 1868-'9, c. 259. 1881, c. 287. ^, ^ r, ,,. The board of commissioners in each county shall hold a regnlar meeting at the court house on the first Mon- days in Decembe? and June. Special mee ings may be held on the first Monday in every month, but shall not continue longer in session than two days. Meetings may be held at other times for the more convenient dispatch of business at the call of the chairman on the written request of one member of the board, but pubhc notice of the time and place of all such called meetings shall be posted at the court house door for not less than six days, and published one time in a county newspaper, if there is one The board shaU receive no compensation tor at- tending such called meetings. The board may ad]0urn its regular meetings in December and June from day to day until the business before it is disposed of. i.very meeting shall be open to all persons. ^ majority of the board shall constitute a quorum. At each regular De- cember meeting the board shall choose one of its mem- bers as chairman for the ensuing year; in his absence the members present shall choose a temporary chairman. King V. Hunter, 65—603; People v. Green, 75—329. Sec 707. Powers of the board of commissioners. 1868, c. 20, s. 8. 187 1-'2, c. 66, s. 1. 1876-'7, c. 14=1, s. 1. (1^ WHEN, HOW AND BY WHOM COUNTY TAXES TO BE LEVIED, TIME FOR THE COLLECTION MAY BE EXTENDED. The board of commissioners is authorized, with the 278 COUNTIES, ETC. [Chap. 17. concurence of a majority of the justices of the peace sit- ting with them, to levy, in like manner with the state taxes, the necessary taxes for county purposes; but the taxes so levied, shall never exceed the double of the state tax, except for a special purpose, and with the special approval of the general assembly. All county taxes shall be levied at the regular meeting of the board and of the justices on the first Monday in June. The board may extend the time for the collection and settlement of the county taxes to such time as may be deemed expedient, not to extend beyond the first day of May next after the taxes were levied. Winslow V. Com'rs, 64—218; Mauney v. Com'rs, 71—486; Satterthwaite V. Com'rs, 76—153; Long v. Com'rs, 76—373; Com'rs v. Com'rs, 79— 5G5; "Watson V. Com'rs, 83—17; Fry v. Com'rs, 82—304; State v. Selby, 83—617; Com'rs V. R. R. Co., 86—541; Cromartie v. Com'rs, 87—134. (2) EXEMPTION FROM CAPITATION TAX. To exempt from capitation tax in special cases, on ac- count of poverty and infirmity. (3) TO PROVIDE FOR THE PAYMENT OF DEBT. To provide by taxation or othervsdse, for the prompt and regular payment with interest, of any existing debt owing by any county. Trull V. Com'rs, 73— 388; Davis v. Com'rs, 74—374; French v. Com'rs, 74—693; Belo v. Com'rs, 76—489; Brickell v. Com'rs, 81—240; Cromartie v. Com'rs, 87—134. (4) TO SUBMIT PROPOSITIONS TO CONTRACT DEBT TO A VOTE OF ELECTORS. To submit to a vote of the quahfied electors in the county, after having obtained the approval of the gen- eral assembly, any proposition to contract a debt, or loan the credit of the county, under section seven, article seven, of the constitution ; to order the time for voting upon such proposition, which shall be upon public notice thereof at one or more places in each township in the county, and publication in one or more county newspa- pers, if there be any, for three months next immediately preceding the time fixed on; and such election shall take place and be conducted under the laws as prescribed for the election of members of the general assembly; and the commissioners shall provide for giving effect, in case Chap. 17.] COUNTIES, ETC. 279 of the adoption of the proposition, to the expressed will of a majodty of the qualified voters in such election; Norment v. Charlotte, 85—387. (5) TOMAKEOKDERS RESPECTING CORPORATE PROPERTY. To make such orders respecting the corporate property of the county as may be deemed expedient; (6) TO AUDIT ACCOUNTS. To audit accounts against the county and direct the raising of the sums necessary to defray them; wSw V. Com'rs. 64-218; Mauney v. Com'rs. 71-486; Owartie v. Com'rs, 85—211. (7) TO PURCHASE PROPERTY FOR ANY PUBLIC BUILDING, AND AT EXECUTION SALE. 1879, C. 144, S. 1. To nurchase real property necessary for any public coStrbuUdSg, and for the support of the poor; and to determine the Ste thereof, where it has not been already locS and to purchase land at any execution sale, when rshall be deemed expedient to do so to secure a debt due thecounty The deed shall be made to the board of com- rnissS; and the board may, in its discretion, sell any lands so purchased; (8) TO DESIGNATE SITE FOR COUNTY BUILDINGS. With the concurrence of a majority of the justices of the peace sitting with them, to remove or designate anew site fofany county building; but the site of any county buHdhig already located shall not be changed, unless by an unanimous vote of all the members of the board and b? a majority of the justices at the regular December meethig and unless upon notice of. the proposed change Sec fying the new site. Such notice .shall be. published ill a newspaper printed in the county, if there is one and posted in one or more public places m every township in the countvfor three months, next immediately preceding tSe annual meeting, at which the final vote on the pro^ nosed change is to be taken. Such new site shall not be S?ore than one mile distant from the old, except upon the special approval of the general assembly; Win&lovv V. Com'rs. 64—218. 280 COUNTIES, ETC. [Chap. 17. (9) TO ERECT AND REPAIK COUNTY BUILDINGS. With the concuiTence of a majority of the justices of the peace, to erect and repair the necessary county build- ings, and to raise by taxation, the moneys therefor; Winslow V. Com'rs, C4— 318; Long v. Com'rs, 76—373; Cromartie v. Com'rs, 87—134. (10) TO CONSTRUCT AND REPAIR BRIDGES. To construct and repair bridges in the county, and to raise by tax, the money necessary therefor, and when a bridge is necessary over a stream, whicli divides one county from another, the board of commissioners of each county shall join in constructing or repairing such bridge; and the charge thereof shall be defrayed by the counties concerned, in proportion to the number of taxable polls ineacli: Provided, the cost of said bridges does not ex- ceed five hundred dollars; and, if the cost exceeds five hundred dollare, with the concurrence of a majority of the justices of the peace; Winslow V. Com'rs, 64—318; Long v. Com'rs, 76—373, State v. Selby, 83—617; Cromartie v. Com'rs, 87—134. (11) TO BORROW MONET, To borrow money for the necessary expenses of the county with the assent of a majority of the justices of the peace therein, and not otherwise, and to provide for its payment, with interest, in yearly instalments, by taxa- tion; Winslow V. Com'rs, 64 — 318. (12) TO RAISE mOHWAY MONEYS. To raise by tax the necessary highway moneys, in such manner as may be prescribed by law; Winslow V. Com'rs, 64^318; Long v. Com'rs, 76—373. (13) TO DIVIDE COUNTY INTO DISTRICTS. To divide each county into convenient districts, called townships, and to determine the boundaries, and prescribe the names of said townships. A map and survey of said townships shall be filed in the office of the clerk of the board of commissioners, and also in the office of the secretary of state; Winslow V. Com'rs, 64 — 318. Chap. lY.] COUNTIES, ETC. 281 (14) TO ERECT, DIVIDE OR ALTER TOWNSHIPS. 1876-7, c. 141, ss, 3, 5. To erect, divide, change the names of, or alter town- ships in the manner following: In any county, any three freeholders of each township to be affected, may, after the notice presently to be mentioned, apply by petition to the board of commissioners, to erect a new township, or divide an existing township, or change the name of or alter the bomidaries thereof. Notice of the apphcation shall be posted in one or more public places in each of such townships, and published in a newspaper printed in the county, if there is one, for at least four weeks pre- ceding the meeting at which the application is made to the board. But the action of the board in creating or altering townships shall not be operative, until approved by the ^justices of the peace at a regular meeting. No township shall have or exercise any corporate powers whatsoever, unless authorized by an act of the general assembly, to be exercised under the supervision of the board of commissioners; Wallace v. Trustees, 81—164; Jones v. Com'is, 85—278. (15) TO ORDER THE LAYING OUT, ALTERATION OR DISCON- TINUING OF HIGHWAYS. To exercise authority in laying out, altering, repairing and discontinuing highways; in establishing and settUng ferries; in building and keeping up bridges; in laying off or discontinuing cart-ways; in providing draws in all bridges, where the same may be necessary for the con- venient passage of vessels; in appointing overseers of high- ways; in excusing persons fi-om working on the high- ways; in allowing and contracting for the building of toll-bridges, and taking bond from the builders thereof; and in licensing the erection of gates across highways. This authority shall be exercised under the rules, regula- tions, restrictions and penalties in all respects prescribed and imposed in i^he chapter entitled Roads, Ferries and Bridges; McArthur v. McEachin, 64 — 454; State v. Selby, 83—617. (16) TO APPOINT AN INSPECTOR OP HIGHWAYS AND BRIDGES. To appoint an inspector of highways and bridges for the county, if deemed necessary; to fix and provide for 283 COUNTIES, ETC. [Chap. 17. his compensation and regulate his duties, not inconsistent with the laws of the state. The commissioners of two or more counties may unite in employing an inspector of highways and bridges, and apportioning his compensa- tion between the respective counties as may be agreed; (17) TO PROVIDE FOR A HOUSE OF CORRECTION. With the concurrence of a majority of the justices of the peace, to make provision for the erectiou in each county of a house of correction, where vagrants and per- sons guilty of misdemeanors shall be restrained and use- fully employed; to regulate the employment of labor therein; to appoint a superintendent thereof, and such assistants as may be deemed necessary, and to fix their compensation; State V. Garrell, 83—580. (18) TO PROVIDE FOR THE EMPLOYSIENT OF PRISONERS. To provide for the employment on the highway or pub- lic works in the county, of all persons condemned to ini- prisonment with hard labor, and not sent to the peni- tentiary; State V. Shaft. 78—464. (19) TO APPOINT PROXIES TO REPRESENT COUNTY. To appoint proxies to represent in any annual or other meeting, the shares or interest held by any county in a railroad company, or other corporation, under the char- ter of such coiporation, or under any special acts of the general assembly, authorizing county subscriptions in such cases; (20) TO SELL OR LEASE REAL PROPERTY. To sell or lease any real property of the county, with the assent of a majority of the justices therein, and to make deeds or leases for the same to any purchaser or lessee; (21) TO PROVIDE FOR THE MAINTENANCE OF THE POOR. To provide by tax for the maintenance, comfort and well-ordering of the poor; to employ, biennially, by Chap. 17.] COUNTIES, ETC. 283 public letting or otherwise, some competent person as overseer of the poor; to institute proceedings by the war- rant of the chairman against any person commg into the county who is likely to become chargeable thei-eto, and cause the removal of such poor person to the county where he was last legaUy settled; and to recover by action in the superior court fiom the said county, all the charges and expenses whatever, incurred for the maintenance or removal of such poor person; Long V. Com'rs, 76 — 373. (22) TO ESTABLISH PUBLIC HOSPITALS. To establish public hospitals for the county in cases of necessity, and to make rules, regulations and by-laws for preventing the spread of contagious and infectious dis- eases, and for taking care of those afflicted thereby, the same not being inconsistent with the laws of the state; and to raise by taxation the necessary moneys to defray the charges and expenses so incurred; (23) TO PROCURE WEIGHTS AND MEASURES. E. C, C. 117, S. 4. 1868, c. 20, s. 26. To procure for each county sealed weights and meas- ures, according to the standard prescribed by the congress of the United States; and to elect a standard-keeper, who shall qualify before the board and give bond ap- proved by the board, as prescribed by law; (24) TO APPOINT COMMISSIONERS TO OPEN RIVERS AND CREEKS. To appoint a commissioner to open and clear the rivers and creeks within the county, or where such river or creek forms a county line or a part thereof. For this purpose the board is authorized to withdraw from the public roads such hands as may be deemed necessary, and allot them to such work under overseers and the direc- tion of the commissioner. The board may impose the duties of this sub-division on the inspector of highways and bridges when appointed; and shall in all respects conduct the opening and clearing of such rivers and creeks as prescribed by law; 284: COUNTIES, ETC. [Chap. 17. (25) TO LICENSE PEDDLERS AND RETAILERS OF SPIRITOUS LIQUORS. To license peddlers and retailers of spiritous and other liquors as prescribed by law. No license shall be good for more than one year, nor granted to two or more per- sons to peddle as partners in trade. And the board of commissioners shall grant licenses for the sale of spiritu- ous liquors to all persons possessing the qualifications re- quired by law, except in those localities where the sale of spirituous liquors shall be prohibited by law; (26) TO ESTABLISH PUBLIC LANDINGS, PLACES OF INSPECTION, AND INSPECTORS. To establish such public landings and places of inspec- tion as the board of commissioners may think proper; and to appoint such inspectors in any town or city as may be authorized by law; (27) TO LICENSE AUCTIONEERS. To license for the term of one year any number of per- sons to exercise the trade and business of auctioneers in each county, and to take their bonds as prescribed by law; (28) TO INDUCT INTO OFFICE COUNTY OFFICERS AND TO AP- PROVE THEIR BONDS. 1874-'5, C. 237, S. 3. To qualify and induct into office at the meeting of the board on the first Monday in the month next succeeding their election or appointment the following named county officers, to- wit: clerk of the superior court, clerk of the inferior court, sheriff, coroner, treasurer, register of deeds, surveyor and constable; and to take and approve the official bonds of said officers, which the boaid shall cause to be registered in the office of the register of deeds. The original bonds shall be deposited with the clerk of the superior court, except the bond of tiie said clerk, which shall be deposited with the register of deeds for safe keeping; Com'rs V. Miignin, 78—183; Dixon v. Com'rs, 80—118; .Tonea v. .Tones, 80—127; Worley v. Smith, 80—305; Swain v. McRae, 80—111; Worley v. Smith, 81—301 Chap. 17.] COUNTIES, ETC. 285 (29) TO REQUIRE FROM ANY COUNTY OFFICER A REPORT UNDER OATH. To require from any county officer, or other person emploved and paid by the county, a report under oath at any" time, on any matters connected with his duties A neglect to comply with such requu-ement by any such officer shall be a misdemeanor; McNeil V. Green, 75—339. (30) TO AUTHORIZE CHAIRMAN TO ISSUE SUBPCENAS. To authorize the chairman to issue subpoenas to com- pel the attendance before the board, of persons, and the production of books and papers relating to the attairs of the county for the purpose of exanimatiou on any mat- ter within the jurisdiction of the board The subpoena shaU be served by the sheriff or any constable to whom it is delivered: and upon return of personal service thereot, whoever neglects to comply with the subpoena or refuses to answer any proper question, shall be guilty of con- tempt and punishable therefor by he board A witness is bound in such case to answer all the questions which he would be bound to answer in like case m a court of iustice; but his testimony given before the board shall not be used against the witness on the trial of any criminal prosecution other than for perjury committed on the examination; McNeil V. Green, 75—339. (31) TO ADOPT A COUNTY SEAL. To adopt a seal for the county, a description and im- pression whereof shall be filed in the office of superior court clerk and of the secretary of state. Sec. 708. When the board to qualify and enter upon office. 1868, c. 20, s. 14. The board of commissioners shall qualify and enter upon the duties of their office on the fi'^^ ^I^^-^^^^y f ,Ji^- Sember next succeeding their election, and they may tfke the oaths of office before any person authorized by aw o aSSinister oaths. The oaths of office sevemllyta^^^^^^ and subscribed by them, shall be deposited with the clerk of the superior court. Jones V. Jones, 80—127. 286 COUNTIES, ETC. [Chap. 17. Sec. 709. Compensation of the board. 1868. c. 20, s. 15 1872-'3, c. 108. 1881, c. 318. Except where otherwise provided by law each com- missioner shall receive for his services and expenses in attending the meetings of the board not exceeding two dollars per day, as a majority of the board may fix upon, and they may be allowed mileage to and from their re- spective places of meeting, not to exceed five cents per mile: Provided, that in the counties of Mecklenburg Pasquotank and Halifax, a majority of the justices of the peace may allow the chairman of the board such compen- sation as they shall think proper. The accounts of each commissioner shall be audited and verified, as other claims. Sec. 710. Compensation of clerk of the board. 1868, c. 20, s. 16. The board shall fix the compensation of its clerk. Sec. 711. Neglect of duty by commissioner a misdemean- or. 1868, c. 20, s. 17. Any commissioner who shall neglect to perform any duty required of him by law as a member of the boaid, shall be guilty of a misdemeanor, and shall also be liable to a penalty of two hundred dollars for each offence, to be paid to any person who shall sue for the same. Sec. 712. Duty of clerk. 1868, c. 20, s. 13. It is the clerk's duty : (1) To record in a book to be provided for the purpose all the proceedings of the board; (2) To enter every resolution or decision concerning the payment of money; (3) To record the vote of each commissioner on any question submitted to the board, if required by any mem- ber present; (4) To preserve and file in alphabetical, or other due order, all accounts presented or acted on by the board, and to designate upon every account audited, the amount allowed and the charges for which it was allowed; (5) To keep the books and papers of the board free to the examination of all persons. Sec. 713. Clerk to publish an annual statement. 1868. c. 20, s. 19. The clerk shall annually, on or within five days next before the first Monday of December, make out and cer- Chap. 17.] COUNTIES, ETC. 287 tify, and cause to be posted at the court house and pub- lished in a newspaper printed in the couiity if there be one, for at least four weeks, a statement for the preced- ins vear showinsr: , . (if The amount, items and nature of all compensation audited by the board to the members thereof severally; (2^ The number of days the board was in session and the distance traveled by the members respectively m attending the same; . , , (3) Whether any unverified accounts were audited, ana if any, how much and for what. See. 714. Neglect of clerk to publish statement a mis- demeanor. 1868, c. 20, s. 20. -.mi Any clerk who intentionally neglects to post and publish the statement required by the preceding section or know- ingly posts and publishes a false statement, shall be guilty of a misdemeanor. Sec. 715. Certified copies of records of the board may be read in evidence. 1868, c. 20, s. 21. Copies of the records of the board, certified by the clerk under his hand and the seal of the county, are declared evidence in all the courts of the state. Sec. 716. Board of commissioners to be elected by tbe justices of the peace. 1876-'7, c. 141, s. 5. The iustices of the peace for each county, on the first Monday in June, one thousand eight hundred and eighty- four, and on the first Monday in June every two years thereafter, shall assemble at the court house of their re- spective counties, and a majority being present, shall pro- ceed to the election of not less than three nor more than five persons, to be chosen from the body of the ciiunty, who shall be styled the board of commissioners tor the county of .......-, and shall hold their offices for two years from the date of their qualification, and until their successors shall be elected and qualified. They shall be qualified by taking the oath of office before the clerk ot the superior court, or some judge or justice of the peace, and the register of deeds shall be ex officio clerk of the board of commissioners. Sec. 717. Meetings of the justices of the peace. 1876-'7, c. 141, s. 5. . For the proper discharge of their duties, the justices 288 COUNTIES, ETC. [Chap. 17. of the peace shall meet annually with the board of com- missioners on the fii'st Monday in June, unless they shall be ofteuer convened by the board of commissioners, which is empowered to call together the justices of the peace not oftener than once in three months. For at- tending such meetings, the justices of the peace shall receive no compensation; but they shall keep a record of their meetings. The register of deeds shall be ex officio the clerk of the justices of the peace, and he shall receive such compensation for his services as the board of com- missioners bhall provide. Sec. 718. Purchase of county indebtedness. 1868-'9, c. 269, s. 2. The board of commissioners may purchase at any price, not exceeding their par value and accumulated interest, any of the outstanding bonds or other indebted- ness of the county. Sec. 719. Vacancies in boards of county commissioners to be filled by justices of the peace. 1879, c. 231. In case of a vacancy occurring in the board of com- missioners of a county, the justices of the peace for the county shall appoint to said oflSce for the unexpired term. Sec. 720. The board of commissioners to fill certain va- cancies. 1868, c. 4. Const., Art. IV., s. 24. Whenever a vacancy shall occur in the offices of sheriff, constable, coroner, register of deeds, county treasurer or county surveyor, the board of commissioners of the county shall fill the same by appointment. Jones V. Jones, 80—127; Sneed v. Bullock, 80—133. Sec. 721. Disputed lines between counties, how settled. R. C, c. 27, s. 1. 1836, c. 3, s. 1. Whenever there shall be any dispute concerning the dividing line between counties, the board of commis- sioners of each county interested in the adjustment of said line, a majority of the board consenting thereto, may appoint one or more commissioners, on the part of each comity, to settle and fix the line in dispute; and their report, when ratified by a majority of the conimis- sionei-s in each county, shall be conclusive of the location of the true line, and shall be receded in the register's office of each county, and in the office of the secretary of state. Chap. 18.] COUNTY REVENUE, ETC. 289 Sec. 722. Commissioners to be sworn and paid. B. C c. 27, ». 2. 1836, c. 3, s. 2. Such commissioners, before entering on the duties assigned them, shall be sworn before a Justice o the peace; and they, with all others employed, shall be allowed reasonable pay for then- labors. CHAPTER EIGHTEEN. COUNTY EEVENUE AND CHARGES, AND COSTS IN CRIMINAL ACTIONS. Section. 723. County taxes collected by sher- iff as state taxes. 734. Fines, forfeitures and penalties to be paid to county treas- urer. 725. Clerks and justices to keep itemized statement of fines, &c. 726. Fines, &c. , to be paid to county treasurer within sixty days. 737. County treasurer to file certi- fied statement with superior court clerk. 728. County officers to make anniial reports of public funds to the board of commissioners. 729. Reports to be registered, if ap- proved by the board of com- missioners. 730. Failure of officers to report. 731. Penalty for wilfully swearing falsely to report. 733. Tax fees in criminal actions to be set apart for the payment of jurors. 733. BiUs of costs in criminal actions to be itemized and audited. 734 Justices of the peace to make out itemized bills of costs. 13 Section. 735. Bills of costs to be open to the public. 736. Statement of costs for which the county is liable, to be filed with board of commissioners. 737. Costs to be paid by prosecutor in certain cases. 738. Prosecutor, when imprisoned for non-payment of costs. 739. Costs to be paid by the county in certain cases. 740. Witnesses for state, when paid by county. 741. County wherein the offence is committed to pay costs and receive fines, &e. 743. Costs incurred by county in prosecuting charges of brib- ery, in certain cases to be a charge against the state. 743. When witness before grand jury to be paid for attendance. 744. When witness on the trial of criminal action to be paid; not more tlian two witnesses to be paid. 745. On appeal from justice in crim- inal action only two witnesses to be bound over. .'290 COUNTY REVENUE, ETC. [Chap. 18. Section. 746. Witnesses to be dischargerl by solicitor, who shall file a certi- ficate of their attendance with clerk. 747. When court to order county to pay defendant's witnesses. 74rf. No witness entitled to liis fees unless his name is included in tlie cei-tificate of solicitor or order of court. 749. Confession of judgment to se- cure fine and costs not to op- erate as discharge of original judgment. 750. Defendant failing to pay fine and costs may again be ar- rested. 751. Claims, &c., against county numbered by clerk and copy furnished to chairman annu- ally. 753. Publication to be made annu- ally of county revenue and charges. 753. Power of board of commission ers to dispose of county funds. 754. No account shall be audited un- less itemized and veiitied by claimant. 755. Accounts to bi numbered. Section. 75C. Claims against county, cities and towns to be presented for payment within two years after maturity or forever bar- red of collection. 757. Claims against municipal cor- porations must be presented for payment and refused, be- fore an action can be main- tained because of their non- payment. 758. Finance committee. 759. Finance committee may send for persons and papers; and administer oaths. 760. Penalty on officer failing to set- tle after ten days' notice. 701. Finance committee to publish statement. 762. Oath of members of finance committee. 763. Compensation of finance com- mittee. 764. Penalty on clerks and other county officers for failing to account for and pay over county funds. 705. Failure of clerk or other officer to perform requirements of this cliapter a misdemeanor. Sec. 723. County taxes collected by sheriff as state taxes. R. C, c. 28, s. 2. 1708, c. 509, s. 2. 1811, c. 823. The county taxes shall be collected b.y the sheriff of the county, who shall be entitled to the same commissions and subject to the same rules and I'egiilations in respect to his settlement of the said taxes with the county treas- xiier as he is in his settlement of the pul)lic taxes with the treasurer of the state; and he shall also settle with the county treasurer or board of commissioneis for the taxes on the unlisted property in his county, under the same rules and regulations as he accounts with the aud- itor of the state. Lockhart v. Harrington, 1 Hawks, 408; King v. Hunter, 65 — 603; Davii V. Com'rs, 74—374. Chap. 18.1 COUNTY REVENUE, ETC. 291 Sec. 724, Fiucs, forfeitures aud peualties to be paid to county treasurer. K. C, c. 28, s. 3. Const., Ai-t. IX., S.5. 1879, c. 96, s. 5. All fines, forfeitures, penalties and amercements col- lected in the sevei-al counties by any court or otherwise, shall be accounted for and paid to the county treasurer by the officials receiving them, and shall be faithfully appro- priated by the board of commissioners for the estabhsh- ment and maintenance of free public schools; and the amounts collected in each county shall be annually le- ported to the superintendent of public instruction on or before the first Monday in January, by the board of com- missioners. Sec. 725. Clerks and justices to keep itemized statement of fines, &c. 1873-'4, c. 1 16, s. 4. 1879, c. 96, s. 1. It shall be the duty of the clerks of the several courts, and of the several justices of the peace, to enter in a book, to be supplied by the county, an itemized and de- tailed statement of the respective amounts received by them in the way of fines, penalties, amercements and for- feitures, and said books shall at all times be open to the inspection of the public. Sec. 726. Fines, &c., to be paid to county treasurer with- in sixty days. R. C, c. 2«, s. 6. 1830, c. 1, s. 13. 1879, c. 96, s. 2. All fines, penalties, amercements and forfeitures re- ceived by any clerk or justice of the peace shall within sixtv days thereafter be paid over to the county treasurer, who shall give a receipt to every such clerk or justice for the same; aud said county treasurer shall enter in a book, to be kept by him, the exact amount of any fine, penalty or forfeiture so paid over to him, giving the date of pay- ment, the name of the clerk or justice so paying the same, the name of the party from whom such fine, pen- alty or forfeiture was collected, and in what case. Sec. 727. County treasurer tolile certified statement with superior court clerli. 1879, c. 96, s. 3. It shall bo the duty of the county treasurer to file a certified statement, itemized as aforesaid, in the office of the clerk of the superior court, and it shall be the duty of the said clerk to record said statement in a book to be kent in his office for that purpose. Said certified state- ment shall be filed by said treasurer in said clerk's office, on the first days of January, April, July and October in each year. 292 COUNTY REVENUE, ETC. [Chap. 18. Sec. 728. County officers to make annual reports of pub- lic funds to the board of coniniisslouers. 1874-'5, c. 151, s.l. 1876-'7, c. 270, s. 1. Sheriffs, treasurers, clerks of any court, registers of deeds and all other officers of the several counties, into whose hands any public funds may come by virtue or under color of their office, shall make an annual account and report of the amount and management of the same, on the first Monday of December, or oftener if required, in &ach year, to the board of commissioners. Such re- port shall give an itemized and detailed account of the public funds received and disbursed, the amount, date and source from which it was received, and the amount, date and person to whom paid, shall be addressed to the chairman of the board of commissioners for the county, and shall be subscribed and verified by the oath of the party making the same, before any person authorized to administer oaths. SuUle V. Doggelt, 87—203. Sec. 720. Reports to l)e registered, if approved by the board of commissioners. 1874-'5, c. 151, s. 3, 1876-'7, c. 276, s. 2, The board of commissioners, if it shall approve of any of the said reports, shall cause the same to be registered in the office of the register of deeds in a book to be fur- nished to the register of deeds by the county, which book shall be maiked and styled "Eecord of Official Reports," with a proper index of all reports recorded therem, and each official report shall, if approved, be indoreed by the chairman of the board with the word "apuroved," with the date of approval, and when recorded by the register of deeds he shall indorse thereon the date of registration, the page of the "Record of Official Reports" upon which the same is registered, sign the same and file it in his office. Sec. 730. Failure of officers to report. 1874-'5, c. 151, s. 3. 1876-'7, c. 276, s. 3. If any person required to make any of the reports here- inbefore provided, shall fail to do so, or if, after a report has been made, the board of commissioners shall disap- prove the same, such board may take such legal stops to compel a proper report to be made, either by suit on the bond of such officer failing to comply or otherwise, as said board may deem best. Chap. 18.1 COUNTY REVENUE, ETC. 293 Sec. 731. Penalty for wilfully swearing falsely to report. 1874-'5, c. 151, s. 4. 187C-'7, c. 27G, s. 4. Any person wilfully swearing falsely to any repoit made as herein required, shall l)e guilty of a misdemeanor, and on conviction, shall be fined or unprisoned, or both, in the discretion of the court. See. 732. Tax fees in civil and criminal actions to be set apart for the payment of jurors. K. C, c. 28, s. 4. 1830, c. 1, s. 8. 1879, c. 325. 1881, c. 249. On every indictment or criminal proceeding, tried or otherwise disposed of in the superior, criminal or inferior courts, the party convicted, or who shall.be adjudged to pay the costs, shall pay a tax of two dollars. In every civil action in any court of record, the party who shall be adjudged to pay the costs shall pay a tax of three dol- lars; but this tax shall not be charged unless a jury shall be empaneled. Said tax fees shall be charged by the clerks in the bill of costs, and collected by the sheriff, and by him paid into the county treasury. And the fund thus raised in any county, shall be set apart for the payment of the jurors attending the courts thereof. Hunter v. Routledge, 6 Jon., 216; LitUe v. Ricbardson, 6 Jon., .305; Hewlett V. Nutt, 79—303. Sec. 733. Bills of costs in criminal actions to be itemized and audited. 1873-'4, c. 116, s. 1. 1879, c. 264, s. 5. It shall be the duty of the clerks of the several courts of record, at each teim of the court, to make up an item- ized statement of the bill of costs in every criminal action tried or otherwise disposed of at said term, which shall be signed by the clerk, and approved by the solicitor. And the judge or justice, may, in his discretion, for satis- factory cause appearing, direct that the witnesses, or any of them, shall receive no pay, or only a portion of the compensation authorized by law. And no county shall pay any such costs, unless the same shall have been approved, audited and adjudged against the county as herein provided. The clerk shall receive for every such bill of costs the sum of twenty-five cents, to be taxed as a part of said costs. Sec. 734. Justices of the peace to make out itemized hiUs of costs. 1873-'4, c. 116, s. 2. It shall be the duty of every justice of the peace to in- • sert in the entry of judgment in every criminal action 294 COUNTY REVENUE, ETC. [Chap. 18. tried or otherwise disposed of by him, a detailed state- ment of the different items of costs, and to whom due. Sec. 735. Bills of costs to be open to the public. 1873-'4, c. no, .ss. 1, 2. Every bill of costs shall at all times be open to the in- spection of any person interested therein. Sec. 730. Statement of costs for which the county is liable to be (ilert with the board of commissioners. 1873-'4, c. lie, s. 3. In all criminal actions in the superior, criminal or in- ferior courts, or before justices of the peace, where the county is liable in whole or in part for such costs, it shall be the duty of the clerks of such courts, and of the jus- tices of the peace, to make out a statement of such costs from the record or docket, within thirty days after the hearing, trial, determination, or other disposition thereof, and file the same with the board of commissioners of tlie county. Sec. 737. Costs to be paid by prosecutor in certain cases. 17}>9, c. 4, s. 19. 1800, c. 558, s. 1. ISOS-'O, c. 377. 1874-'5, c. 151, s. 1. 1879, c. 49, s. 1. R. C, c. 35, s. 37. C. C. P., s. 500. In all criminal actions, if tlie defendant be acquitted, nolle proseqiti entered, or judgment against him arrested, the costs including the fees of all witnesses summoned for the accused, whom the judge, court or justice of the peace before whom the trial took place shall cei-tify to have been proper for the defence, shall be paid by'the prosecutor, whether marked on the bill or warrant or not, whenever the judge, court or justice shall be of opinion that there was not reasonable ground for the prosecution, or that it was not required by the public interest. And every judge, court or justice is hereby fully authorized to deteimine who the prosecutor is at any stage of a crim- inal proceeding, whether before or after the bill of in- dictment shall have been found, or the defendant acquit- ted: Provided, that no person shall be made a prosecutor after the finding of the bill, unless he shall have been notified to show cause why he should not be made the prosecutor of record. State V. Lupton, 63 — 483: State v. n.irr. 63— 51G; Moore v. Com'rs, Ttt— 340; Cantwell v. Com'rs 71—154; State v. HodsoD, 74 — 151; I'egram v. Com'rs, 75—120: State v. Cannady. 78—539; Stale v. Spencer, 81—519; State V. Cio'iPet. 81—579; State v. Hughes, 83—665: State v. Norwood. ' Chap, l^.] COUNTY REVENUE, ETC. 295 84-794; Slate v. Moore, 8^724; State v. Adams, 85-560; State v^ Mu.- dock. 85-0y8; State v. Powell, 86-040; State v. Owens, 87-565. Sec 738. Prosecutor, when imprisonea for non-paynie«t ;tcoJts. R.C., 0.35,8. 37. 1800, c. 558, s. 1. 187«. c.49,s. 2. 1881,0.176. , . , -, , , ., Every such prosecutor may be adjudged "ot only to pay the costs, but he shall also be imprisoned for the non- ay mentthek^of, when the judge, court or .iristice of the See before whom the case was tried shah adjudge that the prosecution was frivolous or malicious. State V. Lumbrick, 1 C. L. R.,543; State v. Lupton, 63-483; Pegram v. Com'rs. 75-130; Slate v. Cannady, 78-539; State v. Hughes, 83-Gbo. Sec. 739. Costs to be paid by tbe county in certain cases. B. €., o. 28, s. 8. K. S., o. 28. s. 12. C. C. P., s. 561. 1874-T., o. 247, s. 1. . , . i +i If there be no prosecutor in a criminal action, anU the defendant shall be acquitted, or convicted and unable to pay the costs, or a nolle proseqrd be entered, or judgment arrested, the county shall pay the clerks; sheriffs consta- besfjukices and witnesses one-half their lawful fees only- except in capital felonies and in prosecutions foi foi-lery^ Pe^-iuiy and conspiracy, when they shall receive "full fG6S Moore v. Com'rs, 70-340; Cantwell v. Com'rs, 71-154; Bunting v. Com'rs, 74-633; Clerk's office v. Com'rs. 79-598; State v. C rosset, 81- 579; State V. Hughes, 83—665. Sec. 740. Witnesses for state, when paid t»y *'«""ty- ,,^' C, o. 28, s. 9. 1804, c. 665. ss. 1, 2, 3. 1819, c. 1008. 1824, o. 1253. 1 , 1^ # +1 Witnesses summoned or recognized on behalt of the state to attend on any criminal prosecution m the supe^ rior inferior, or criminal courts where tlie defendant is insolvent, or by law shall not be bound to pay the same, and the court does not order them to be paid by the pros- ecutor, shall be paid by the county in which the prosecu- tion was commenced. And in all cases wherein witnesses may be summoned or recognized to attend any such court to give evidence in behalf of the state and the defendant sh?ll be discharged, and in cases where the defendant shall break jail and shall not afterwards be retaken, the court shall order the witnesses to be paid. Moore v. Com'rs, 70-340; Lewis v. Com'rs. 74-194; Pegram y. Com r9, • 75—120. 296 COUNTY REVENUE, ETC. [Chap. 18. Sec. 741. County wherein the oflfence is committed to pay costs and receive fines, &c. K. C, c. 28, s. 10. 1810, c. 799, s. 1. In all cases where the county is liable to pay costs, that county wherein the offence shall have been charged to be committed shall pay them. And all fines, forfeitures and amercements accruing in the case shall be accounted for and paid to the treasurer of that county. Moore v. Com'rs, 70—340; Pegiam v. Com'rs, 75—120. Sec. 742. Costs incurred by county in prosecuting charges of bribery, in certain cases to be a charge against the state. 1868-'9, c. 176, S.6. 1874-'5, c. 5. The expenses which shall be incurred by any county in investigating and prosecuting any charge of bribery, or attempt to bribe any state ofticer or member of the gen- eral assembly within said county, and of receiving bribes by any state officer or member of the general assembly in said county, shall be a charge against the state, and the properly attested claim of the county commissioners shall be paid by the treasurer of the state. Sec. 743. When witness before grand jury to be paid for attendance. 1879, c. 264, s. 1. No witness sliall receive pay for attendance in a crim- inal case before a grand jury unless such witness shall have been summoned by direction in writing of the fore- man of the grand jury, or of the solicitor prosecuting, addressed to the clerk of the court, commanding him to summon such witness, stating the name or names of the parties against whom his or her testimony may be needed, or shall have been bound or recognized by some justice of the peace to appear before the grand jury. Sec. 744. When witness on the trial of criminal action to be paid; not more than two witnesses to be paid. 1871-'2, c. 186, s. 3. 1879, c. 264, s. 2. No person shall receive pay as a witness for the state on the trial of any criminal action unless such person shall have been summoned by the clerk under the direc- tion of the solicitor prosecuting in the court in which the action originated, orin wliich it shall be tried if removed; and no solicitor shall direct that more than two witnesses shall be summoned for the state in any prosecution for a misdemeanor, nor shall any county or defendant in any such prosecution be liable for or taxed with the fees of more than two witnesses, unless the court, upon satisfac- Chap. 18.] COUNTY REVENUE, ETC. 297 ThSpTdT/the county for atue^*^^^^^^ ru?.Sto^?avTZ/sS:h':LeTs-fufs'aS°i taxed in more than one case on the same day. sec. 745. On appeal from justice i- -iminal action, only two witnesses to be bound over. 187a, c. -t>4, Whe'n the defendant shall appeal from the judgmenj ^ftheiustice of the peace, in any cnminal action, it shaU bi he duty of snch justice of the peace to select and hind ovei on behalf of the state not n.ore than two wit- ne ses and neker the county nor the detendan shaU hP liable for the fees of more than two witnesses on such aoDetluSess additional witnesses shall be summoned by Sder of the appellate court as provided in the preceding section. Sec 746. Witnesses to be discharged by «o""J«/' 7l?« shaU me a certificate of their attendance with cleik. 1879 c. 264, s. 4. 1881, c. 312, s. 1. Tt shall be the duty of all solicitors prosecuting in the ni ^nn, t^ as each criminal prosecution shall be dis- ^'Iprl of bvtriS leraoval conti^nuance or otherwise to STand dfschSe he witnesses for the state, either My or otlerw^ as the disposition o the case may Squire; and he shaU thei;eupon file ^-^h tjie derk of the court a certificate giving the names of ^^^^ witnesses en ^ titled to prove the., a e^^^^^^^^^ ofSr fo™ and bSil thereof shall be furnished to tie solSor by the clerk at the county expense, viz: I.-ORTH CAROLINA. ) ^ Court Term 188 County. \ State vs .'.'.'.'.'.'..'..'.'...... Witness discliargeti day of ;.'".".. . .' '. Solicitor. sec. 747. When court to order county to pay defendant's .. 1S79 c 264 s. 4. 1881, c. oi--, »• ^' When' the'defendLit shall be acquitted, a nolle prose^ g Centered! or judgment aganf ^ hi- a-es ed, and i 298 COUNTY REVENUE, ETC. [Chap. 18. duly sabpojnaed, bound or recognized, in attendance and that they were necessary for his defence, it shall be the duty of the court, unless the prosecutor be adjudo-ed to pay the costs, to make and file an order in the canse du-ectnig that said witnesses be paid bv the county in such manner and to such extent as is au'thoi'ized by "law for the payment of state's witnesses in like cases. Sec. 748. No witness entitled to liis fees unless his name is inclurted in the certificate of the solicitor or order of court. 1879, c. 264, s. 4. 1881, e. 312, s. 2. No county, prosecutor or defendant, shall be liable to pay any witness, nor shall his fees be embraced in the bill of costs to be made up as hereinbefore nrovided un- less his name be certified to the clerk by the solicitor or nicluded in the order of the court as required by the pre- cedmg section : Provided, that the couit, at any time withni one year after judgment, may order that any witness may be paid, who for any good reason satisfac- tory to the court failed to have his fees included in the original bill of costs. Sec. 749. Confession of judgment to secure fine and costs not to operate as a discharge of original judgment 1879, c. 264, s. 6. In cases where the court permits a defendant convicted of any criminal offence, to give bond or confess iudo-- ment, with sureties to secure the fine and costs which may be imposed, the acceptance of such security shall be- upon the condition that it shall not operate as a dis- chai-ge of the original judgment against the defendant nor as a discharge of his person from the custody of the- law until the fine and costs are paid. Sec. 750. Defendant failing to pay fine and cost may again be arrested. 1879 c. 264, s. 7. In default of payment of such fine and costs, it shall be the duty of the court at any subsequent term thereof on motion of the solicitor of the state to order a capias to issue to the end that such defendant mav be again arrested and held for the fine and costs until'discharged according to law. Sec. 751. Claims, &c., .against county numbered by clerk and copy furnished to chairman anuuiillv. K. C., c. 28 S. 12. 1793, c. 387, s. 1. The clerk of the board of commissioners, if so ordered CH.P IS] COUNTY KEVENUE, ETC. 299 the same. sec. 752. PubHcatlon to .. »»^-.-»t"\;;^!c°Si!: r°lSS8.t"?rs.?i.'-V8f3':.*: c. .«. 1870-7, «. Ttotmrrshali cluse t., be posted at the court house ■T, flJl^nvs after each regular December mcetiUK SSed ancUhe amount allowed; and ^^f ^=^,t ^he am strvS^iL°perinr«onb?u^nranV. a cent a word. see. 753. Power <>y,oaM of coj^niy^cvnerst^aisp^ of ThrbStf Siil'onel-s'is lnv;sted with fnll power to drect the application of all moneys ansmg by ?h ue of this chapter for the purposes herem men onecl, IncUo any other ^ood and necessary purpose foi the use of the county. ai_7ii state V. McAlpin. 4 Ired., 140; Abernatby v. Phifer, 84-.11. Sec 754. Ifo account shall be audited unless itemized knd verified by claimant. 1868, c. 20, s. lO. No account shall be audited by the board for any ser- vices or dTsbursements, unless it is first n^adeoutm items Ind has attached to and filed with it the affidavit of the clairnanttS ^^^ ^"fV^^ ffct made and rendered, and that no part thereof has been paid or satisfied. Ekch account shall state the na^ ture of tlie services, and where no specific compensat on Snrovided by law, it shall also state the time necessardy devoted to ttfe per orraance thereof. The board may dis- SOO COUNTr REVENUE, ETC. [Chap. 18. allow or require further evidence of the account, notwith- standing the verification. Leach v. Com'rs, 84^839. Sec. 755. Accounts to be numbered. 1868, c. 20, s. 12. All accounts presented in any year, beginning at each regular meeting in December, shall be numbered from one upwards, in the order in which they are presented; and the time of presentation, the names" of the persons in whose favor they are made out, and bv whom pre- sented, shall be carefully entered on the minutes of the board; and no such account shall be withdrawn from the custody of the board or its clerk, except to be used as evi- dence in a judicial proceeding, and after being so used it shall be promptly returned. Sec. 756. Claims against counties, cities and towns to be presented for payment within two years alter maturity or forever barred of collection. 1874-'5, c. 243, s. 1. AU claims against the several counties, cities and towns of this state, whether by bond or otherwise, shall be presented to the chairman of the board of county commissioners or to the chief officers of said cities and towns, as the case may be, within two years after the maturity of such claims, or the holders of such claims shall be forever barred from a recovery thereof. Wharton v. Com'rs, 82—11; Hawley v. Com'rs, 82—23; Moore v Com'rs 87—309. Sec. 757. Claims against municipal corporations mu.st be presented for payment and refused, before an ac- tion can be maintained because of their non-pay- ment. No person shall sue any city, county, town, or other municipal corporation for any debt or demand whatso- ever unless the claimant shall have made a demand uiwn the proper municipal authorities. And every such action shall be dismissed unless the complaint shall be verified and contain the following allegations: (1) That the claim- ant presented his claim to the lawful municipal authori- ties to be audited and allowed, and that they had neglected to act upon it, or had disallowed it; or (2) that he had presented to the treasurer of said municipal corporation the claim sued on, which had been so allowed and audited, and that such treasurer had notwithstanding neglected to pay it. Love V. Com'rs, 64—706; Jones v. Com'rs, 73—183; Cromartie v Com'rs, 85—211. Chap. 18.] COUNTY REVENUE, ETC. 301 Sec 758. Finance committee. B. C, c. 28, s. 17. 1838, c.31,s. 1. 1871-'2,c. 71, s. 1. „ « + The iustices of the peace at their meeting- on the first Monday in June in each year, a majority ot them being rn-esent may elect by ballot three discreet, intelhgent talpaying citizens, to be known as the "finance com- mftceef" whose duty it shall be -to inquire "^to inves^^^ gate and report by pubhc advertisement, at the com t house and one public place in each township ot the county or in a newspaper, at their option, if one be pub- Shed n the county, a detailed and itemized account of the condition of the county finances, together with any SherSiformationappei^^ to any funds misappix)- priation of county funds, or any malfeasance m ofiice by any county officers. King V. Hunter, 65-603; Moore v. Com'rs, 87-209. Sec. 759. Finance committee may send for persons and papers; and administer oaths. 1831, c. 31, s.^. 1871-'3, c. 71, s. 2. B. C, c. 28, s. 9. 1883, c. 252. The finance committee shall have power and authority to send for persons and papers, and to administer oaths; anl any peison failing to obey their summons or to pro- duce promptly any paper relating or supposed to relate toanrmTte/app'ertaimngto the duties ot the finance Committee shaU be guilty of a misdemeanor, and on con- ?;^iS^ in the superior co'urt, shall be fined and imprison- ed at the discretion of the court. Sec 760. Penalty on officer failing to settle after ten kays" notice. B. C, c. 28, s. 19. 1831, c. 31, s. 3. If any clerk, sheriff, constable, county treasurer, regis- ter of deeds, justice of the peace, or other officer or commissioner, who may hold any county money, shall fa 1 duly to account for the same, the finance com- mittee shall give such person ten days' Pf .^i^^f jo^i^^; in writing, of the time and place at which they will attend to make a settlement; and every officer receiving notice and faiUng to make settlement as req^red by this chapter, shaU forfeit the sum of five hundred dollars to be sued for in the name of the state and prosecuted for the use and at the expense of the county, unless the court shall release the officers from the torteiture. Sec. 761. Finance committee to publish statement. 1871-'2, c. 71, s. 3. . , ^ 1 It shall be the duty of the finance committee to make 302 COUNTY EEVENUE, ETC. [Chap. 18. and publish their report as hereinbefore directed on or before the first Monday of December in each year. Sec. 762. Oath of members of flusmee committee. 1871- '3, c. 71, s. 4. The members of the finance committee before entering upon their duties shall, before the clerk of the superior court, subscribe to the following oath or affirmation : "I, A. B., do solemaly swear (or iifflrtn) that I will diliseiitly inquire in- to all matters relating to the receipts and disbursements of county funds and a true report make, without partiality. So help me, God." Sec. 763. Compensation of finance committee. 1871-'2, c. 71,s. 5. 1873-'4, c. 107. The members of the finance committee shall each re- ceive such compensation for the performance of his duties as the board of commissioners may allow, not ex- ceeding three dollars per day; but they shall not be paid for more than ten days in any one year. Sec. 764. Penalty on clerks and other county officers for failing to account for and pay over county funds. K. C, c. 28, s. 7. 1808, c. 756. 1809, c. 769. 1813, c. 864. 1830, c. 1, ss. 11, 12, 13. If any clerk, sheriff, justice of the peace, or other offi- cer, shall fail or neglect to account for and pay over as required by law any taxes on suits, or any fines, forfeit- ures and amercements as required by this chapter, or shall fail to make the returns herein specified, he shall forfeit and pay five hundred dollars, to be recovered in the name of the board of commissioners for the use of the county. Sec. 765. Failure of clerk or other officer to perform re- quirements of this chapter a misdemeanor. 1879, c. 96, S.6. If any clerk, justice of the peace, sheriff, register of deeds, constable, commissioner, county treasurer, or other county officer, shall neglect to perform any of the require- ments of this Code, he shall be guilty of a misdemeanor, and upon conviction shall be fined or imprisoned, in the discretion of the court. Chap. 19.] COUNTY TREASURER. 303 CHAPTER NINETEEN. COUNTY TEEASUREE. Section. to account and pay over funds when collected. 776. Penalty for failure of treasurer to perform duties. '77. County treasurer to pay no claim against tbe county un- less the board of commission- ers shall audit it. nS. Property held in trust by any person for a county to be held and administered by the county treasurer. 779. The county treasurer to take charge of all such trust fuuds and properly. 780. The board of commissioners to- keep a record of such property or funds. 781. County treasurer to exhibit to the board of commissioners, the amount and condition of all trust funds and property. 1868-'9, Section. 706. County treasurer to give good bond. 767. Delivering of books, papers and money lo successor. 768. Justices of the peace may abolish office of treasurer. 769. Bond of sheriff, acting as treas- urer, to cover his liabilities as such. 770. County treasurer to include party acting as such. Com- pensation. 771. The board of commissioneis to bring action on treasurer's bond. 773, County treasurer not to specu- late in county claims. 773. Duties of county treasurer prescribed. 774. Compensation of examining committee. 775. Penalty for refusal by officers Sec. 766. County treasurer to give good bond. ° ;Sef to'ta :W~'ed by>he boa.-;, c^^^^^^^^^ "s treasurer, and render a .lust ,aud true ^«»™'^*,;l|''«f ,„ the.board "h- fj"™* 'g ^^Tbo" d sLaH be at least commissioners, ilie penalty oi mb "\^' , nrecedine: double the amount ot^ county revenue foi the piececlug year, and the board of commissioners at anv time, by . order may requh-e him to renew or enlaige his oona. a ?a?iui'e?o do so within ten days after the service of such 304 COUNTY TREASURER. [Chap 19. an order shall vacate his office and the board shall ap- point a successor. Kilburn v. Latham, 81—313; Com'is v. Magnin, 86—285. Sec. 767. Delivering of books, papers and money to suc- cessor. 1808-'9, c. 157, s. 5. Whenever the right of any county treasurer to his office expires, the books and papers belonging to his office, and all moneys in his hands by virtue of his office shall, upon his oath, or in case of his death, upon the oath of his personal representative, be delivered to his successor. Com'rs V. Magnin, 86—285. Sec. 768. Justices of the peace may abolish office of treas- urer. R. C, c. 29, s. lO. 1852, c. 6. 1876-'7, c. 141, s. 2. 1881, c. 362. The justices of the peace in any county may abolish the office of county treasurer; and thereupon, the duties and habilities attached to the office shall devolve upon the sheriff, who shall be ex-officio county ti-easurer. And in any county where the office of treasurer has been abolished, the justices of the peace may also, if they shall deem it expedient to do so, restore the office of treasurer. Sec. 769. Bond of sheriff, acting as treasurer, to cover his liabilities as such. 1879, c. 202, s. 1. In counties where the office of county treasurer may be abolished, and where the sheriff is autliorized to per- form the duties of county treasurer, the bond he gives as sheriff shall be construed to include his liabilities and duties as such county treasurer, and may be increased to such amount by the board of commissioners, as may be deemed necessary to coA'er the trust funds coming into his hands. Sec. 770. County treasurer to include person acting as such. Compensation. 1874-'5, c. 49. 1879, c. 202, S. 2. Tho office of county treasurer shall always be construed to refer to, and include, the person authorized by law to perform the duties of that office in any county, if there is no county treasurer therein. The county treasurer shall be ex-officio the treasurer of the county board of education. The said treasurer shall receive as a compensation in full for all services required of him such a sum not ex- ceeding one half of one per cent, on moneys received and CHAP. 19.] COUNTY TREASURER. 305 not exceeding two and a 1-/^ If ^^^iS^rrS the bursed by him as ^he ^ J^ ,*^f^t'?^''Si^^^ his disbursements. • , ,r ■ , sr 2S5 Com-rs V. Magain. 78-181; Com'rs v. Magna,. 86-28o. sec 771. The board of commissioners to bring action on »ec. « » X. i 1 cfiS-'9 c. 157» s. O. t.«i V M.s.m, I8-181i C""'" '' M""!""' "^'*'- Sec 772. C«....tJ tre»su,.er no. to speculate iu eo.mt, county at less than ;''.''^«J,^;"^;j,'„„ J he actually charge the couuty ^ Sf f'f |,^Xa of commissioners may forfeit his office. n^'.!«.'^:r.°!cr^a,^!•■>s«^^tt«7.'^;•. 1879, c. 33, s. 1. It shaU be the duty of the treasurer- (1) TO KEEP COUNTY MONEYS. To receive all moneys belongin^to the c»unty, and^all other "»°'=yf„l^^" ? ff*m hi, o^^^^^^ and to ap' ^^theT^id re'nS' acooTnt o£ them as required by 79_363; Com'rs v. McPherson. 79-524; CiomaiUe v. ^om (2) TO KEEP TRUE ACCOUNTS. 308 COUET HOUSES, ETC. [Chap. 20. Sec. 779. The county treasurer to take charge of all such trust tunds and property. 1869-'70, e. 85 s «> It shall be the duty of Ihe county treasurer 7o take €narge ot all such trust funds and property; but ho Sal! not do so without giving a bond piyable to the s at^^n ?n?.T^*^-.K^i'.''^^ *^^^ estimated value' of said propertv ol £±'fl'*'?f '''?.?'■ ^°^^ ^^^-^t^e^' each of 4om sLSl be worth at least the amount of the penalty of the bond over and above alibis liabilities, and property exempt from execution, which bond shall be taken by the boS d +ifri"''''!?"l''''n ^''^ ^^a" ^e recorded and otherwise treasurer ^"^ ' ""' ^^^ ''^^^^^ ^°^^ ^^ ^^^ Sec. 780. The board of commissioners to keep a record of such property or funds. 1869-'70, c. 85, s. 3 The board of commissioners shall keep a'proper record ot all such trust property or charitable funds, and when necessary shall institute proceedings to recover for the treasurer, all such as may be unjustly withheld. Sec. 781. County treasurer to exhibit to the board of commissioners the amount and condition of all trust funds and property, 1869-'70, c. 85, s. 4. The county treasurer, whenever he is required to ex- Hnn if ff ''^''^ ?^ commissioners the financial condi- tion of the county, shall exhibit also distinctly and separately the amount and condition of all such ti-ust tunds and property, how invested, secured, used and other particulars concerning the same. CHAPTER TWENTY. COUET HOUSES, PEISONS AlfD WOEK HOUSES. Section. 783. Court houses and jails to be built and kept iu repair by the board of commissioners. 783. Jails to have separate apart- ments. 784. Common jails to be heated by furnaces, stoves or otherwise. Section. 785. The grand jury to visit the jail at each court. 786. Board of commissioners may establish public work houses. 787. Board to appoint directors.their duties, <&c. CHAP. 20.] COURT HOUSES, ETC. 309 I Section. Section. ^ j ^ ^.,r, 7q6 Board may issue bonds to 788. Boardtoappmntabondedman- 796. B-^^^^.^J^^^ ,„„,,, ager, his duties &c. Whenever a work bouse estab- 789. Compensation of manager and .97. ^.^^-^^^^.^^^^ ^, ^,,,a to ,,is subordma es. ^^^ ^^^^ ^^ g^^^,„,,. 790. Board empowered to levy taxes y brought in name ■701 Penalties incurred by abscond- 798. Suit to oe urougut 791. 1 enaiiiLb iin,uii^.u j | ^^ ■^^„^a „f rnnntv comniis- ins offenders 793. Vagrant persons may be re- leased. 793. Duties of sheriffs. 794. Managers to assign offenders employment. 795. Term of oflBce of directors. of board of county commis- sioners. 799. Any two or more counties may jointly establish work houses. 800. A general board of directors appointed. 801. General man.ager appointed by the general board of directors. sec 782. Court Houses and jails to be built and kept m ;Jna1r bv the board of commissioners. B. C, c. 30, r 1 1741 c. 43, ss. 1, 2. 1795, c. 432, s. 1. 1S16, Thprp shall be kept and maintained in good and suffi- cient repair in every county, a court house and common iSl at the expense of the county, wherein the same are sttuated; and the boards of commissioners of tlie several counties respectively shall lay and collect taxes, from year S year, as long as may be necessary, for the purpose of buUdhik, repairing and furnishing, their several court ho ses and mils, in such manner as they shall think prope?; and^ from time to time sha order and estab- iish^uch rules and regulations for the preservation of the court house, and for the government and manage- ment of the prisons, as may be conducive to the interests S the public, and the security and comfort of the persons ^^S^atfv. Justices, 4 Hawks. 194; McKenzie v. Buchanan, 6 Jon., 31. ^Po 783. Jails to have separate apartments. K. C, c 30 s 2. 1795, c. 433, s. 4. 1816, c. 911, s. 1. Tlie common jails of the several coimties shall be pro- vided with at least five separate and suitable apartments; one for the confinement of white male criminals; one tor ^4iite female criminals; one for colored male criminals; one for colored female criminals; and one for other pris- oners. Sec. 784. Common jails to be Ueated by furnaces, stoves, or otherwise. 1879, c. 25. It shall be the duty of the board of commissioners in 810 COURT HOUSES, ETC. [Chap. 20. every county to have the common jails so heated by fur- naces, stoves, or otherwise, as to render them warm and comtortable And any county commissioner failijio- to comply with the requiiements of this section, shall be liable to indictment,and upon conviction, may be punished cour^ *^^ ^"^l^"^'^^"'^'!*' <>i' both, in the discretion of the Sec 785. Tlie grand jury to visit the jail at each court. K. C, c. 30, s. 3. 1816, c. 911, s. 3. .Every grand jury, while the court is in session, shaU visit the ]ail examine the same, and especially the apart- ments in which prisoners shall be confined": and thev shall report to the court the condition of the iail and of ^'^^.P^J2'''^}\(^onf\ned therein, and also the manner in which the jailor has discharged his duties. Sec. 786. Board of commis.sioners may establish public work houses. 1866, c. 35, s. 1. The board of commissioners may, when they deem it necessary, establish within their respective counties one or more convenient houses of correction, with workshops and other suitable buildings for the safe keeping, correct- ing governing, and employing of offenders legally com- mitted thereto. They may also, to that end, procure machmery and material suitable for such employment in |aid houses, or on the premises; and moieover attach thereto a farm or farms; and all lands purchased for the purpose^s aforesaid, shall vest in the directors he.einafter provided for, and their successors in office. The said board shall ahso have power to make, from time to time such rules and regulations as it may deem proper, for the kind and mode of labor, and the general management of the said houses. State V. GiiiTcll, 82—580. Sec. 787. Bo.ard of conunissiouers to appoint directors; duties of directors. 1866, c. 35, s. a. The board of commissioners shall, annually, appoint not le.ss than five nor more than nine directors for each house of correction which may be established, whose duty it shall be to superintend and direct the manager hereinafter named m the discharge of his duties; to visit saKl houses at least once in every three months; to see that the laws rules and regulations relating thereto are duly executed and enforced, and that the persons com- mitted to his charge are properly cared for, and not I Chap. 20.] COURT HOUSES, ETC. 311 oKnc^-l nr oDDi-essed The directors shall keep a journal receipts and expenditures of the institution. They shall a oTuake such^by-laws and regulations or ^e govern ^X directoisthaU r t^o'r the services rendered, by The coSy 4a urer, elch director first making appear to he sSIction of the board of county comm^s.one^. by his oath the character and extent ot tne seiviceb rendered for which he claims compensation; and such payment shall be made by the county treasurer out of any funds in his hands not otherwise appropriated. Sec 788. The board of commissioners to appoint a bonded manager; duties of manager. 1866, c. 3o, s. S. The board of commissioners shall appoint a manager for each house or establishment, who shall give a bond wfthtwoormore able sureties, in such sum as may be ZuiS payable to the state of North Carolina condi- S"ed for?he faithful discharge of ^^^ duties^ He sha^ bold his oface dur ng the pleasure of the board, ana ue o+ in tmes under the supervision of the directors; and m cLfo STiimX^^ which thev shall be the sole indeeV he may be forthwith removed by them and a suc- Jeima lSd,who shall discharge the duties of the ffi a ,nntil another manager shall be appointed by the Wd o? cimm ssionS. It shall be the duty of the man- age to recei^'e all persons sent to the house of correc- tfon to klep tliem during the time of their sentence, and to enSloy and control them according to the rules and reSons established therefor. He shall have t^ie d - rection and control over the subordinate oftcers ass st- ants and servants, who may be appointed by the direc;- toit He shaH make montlily reports to the direc ors of his management of the institution and his receipts and expenditures. Sec. 789. Compensation of manager and his subordinates. 1860, f. ;i5, s. 4. The said board of commissioners shall direct ^^l^at com- pensation the manager and such subordinate officers, as- SJanis and servant!, as shall be appointed, shall receive, and shall provide the payment t.iereot. ai2 COUET HOUSES, ETC. [Chap. 20. See. 790. The board of commissiouers empowered to lew taxes. 1806, c. 35, s. 5. The board of commissioners, with the assent of a ma- jority of the justices of the peace, in addition to the ordi- nary county taxes, shall also, at the time said taxes are laid, lay such tax as maybe necessary to carry into effect this chapter, which shall be collected and paid to the manager at the same time as other county taxes are to be paid; for which, and such other funds as may come into his hands as manager, he shall be accountable- and he shall disburse the same under the authority of the di- rectors. Sec. 791. Penalties incurred by absconding offenders. 1866, c. 35, s. 6. If any offender shall abscond, escape or depart from any house of correction without license, the manaoer shall have power to pursue, retake and bring him back and to require all necessary aid for that purpose: and when brought back, the manager may confine hnn to his work by tetters or shackles, or in such manner as he may judge necessary, or may put him in close confinement in the county jail or elsewhere, until he shall submit to the regulations of the house of correction ; and for every escape each offender shall be held to labor in the house ot correction for the term of one month in addition to the time for which he was first conmiitLed. Sec. 792. Vagrant persons may be released. 1866 c. 35 s. 7. ' If any person shall behave well &nd reform, he may on the certificate of the manager, be released by the di- rectors, if committed as a vagrant; but if otherwise com- mitted, he may be released by the committing authority upon the certificate of the manager and directors. Sec. 793. Duties of sheriffs. 1866, c. 35, s. 8. Whenever any person shall be sentenced to a work house, he shall forthwith be committed bv the court to the custody of the siierifif. to whom the clerk shall imme- diately furnish a certified copy of the sentence, in which at shall be stated (if the fact be so) that the offender is conimitted as a vagiant. The sheriff shall convey the of- fender to the work house, and deliver him to the mana"-er with the certified copy aforesaid, and take the manager's receipt for the body; which receipt the slieriff shall re- turn to the clerk of the board of commissioners, with his Chap 20 ] COURT HOUSES, ETC. 313 pose and file the original with the papers in the case. Sec. 794. Manager to assign offenders employment. 1806, The"" manager shall assign to each person sent to the work hcSe tie kind of work in which such person is to be employed. Sec 795. Term of office of directors. 1866, c. 35, s. 10. %ie directors shall continue in office until others shall be ap^inted^ and if any vacancy happens amoug them, It shall be tilled by the residue of the directors. Sec. 796. Board ot commissioners may issue bonds to es- tablish work houses. 1866, c. 35, s. 11. The board of commissioners, with the assent o a ma- ioritv of the justices of the peace, may, if deemed aavis ilie by them issue county bonds to raise money to estab- fisli the houses and farms herein provided for. Sec 797. Whenever a work house is established, the Chairman of the board of commissioners to certify fact to governor. 1866, c. 35, s. Iw. Whenever any workhouse or house of correction shall be estSshed in pursuance of this ^-^fer, it shall be +1,0 rintv nf the chairman of the board ot comm ssioneis S thfLunty wSn the same shall be established to certify the fict to the governor, who shaU cause it to be noted in a book kept for that purpose. Sec. 798. Suit to be brought in name of board of county commissioners. 1866, c. 35, s. 13. All suits brought on behalf of the institution shall, un^ lest it be otherwise prescribed, be brought m the name of theboanl of commissioners of the county to the use of the cStors of the work house, without designating such directors by name. Sec 799 Any two or more counties may jointly establish workhouses. 1866-'7, c. 130, s. 1. Any two or more counties, acting through their re^Bpec- tive boards of commissioners, may ]omtly establish one 14 314 COUET HOUSES, ETC. [Chap. 20. or more convenient houses of coriection, as is provided in the preceding sections, for the joint use of the counties so agreeing together; and the same may be established at such place or places, and be in all respects managed under such by-lav\'s. rules and regulations as a majority of the general board of directors, to be appointed as here- inafter directed, shall determine. Sec. 800. A general board of directors appointed. 1866- '7, c. 130, s, 2. The hoard of commissioners of each of the respective counties agreeing as aforesaid to the establishment of one or more houses of correction for use jointly with any other county or counties shall annually appoint five directors in behalf of their several counties, and the directors so appointed by each of such counties shall together constitute the general board of directors of any such joint establishment. Sec. 801. General managers to be appointed by the general board of directors. 1866-'7, c. 130, s. 3. Said general board of directors shall appoint a manager or superintendent for every such joint establishment, and such assistants and servants as they inay deem necessary. The manager shall give bond with two or more able sureties, to be approved by said board, in such sum as may be required, payable to the state of North Carolina, and conditioned for the faithful performance of liis duties. He shall hold his office during the pleasure of the general board of directors, and be, at all times, under their supervision; and of his misconduct they shall be the sole judges, and they may at any time remove him. He shall perform all such duties as may be pre- scribed by such general board of directors, and all such as may be incident to the office of manager by virtue of this chapter. The compensation of the manager and such subordinate officers, assistants and servants, as may be appointed by the general board, shall be fixed by said general board. Chap. 21.] COURTS, INFERIOR. 315 CHAPTER TWENTY ONE. COURTS, INFERIOR. Sfxtion. I Section. ,. ^ , 803. Inferior courts. I 809. Piacticc, pleading. &c. ; appeals 803. May decline to elect justices of | 810. Issues of fact the inferior court. 804. Terms, liow often held in each year. 805. If the business cannot be deter- mined in one day, courts to adjourn from day to day. 806. Majority of the court failing to meet, sheriff to adjourn from day to day. 807. Process continued. 808. Jurisdiction. 811. Jurors provided in same man ncr as for superior courts. 813. Justices may elect a clerk. Board of commissioners to take bond. 813. Notices, summons, executions and other process. 814. Justices shall elect an attorney. 815. Presiding justice; compensation 816. Vacancies, how filled. 817. May enforce its orders, &c. Sec. 803. Inferior courts. 1876-'7, c. 154, s. 1. Courts of recotd inferior to the supreme court are established for the trial of criminal actions, and such courts shall have all the rights and powers incident to courts of record, and shall have such jurisdiction as shall be conferred and prescribed by law. The courts herein provided for shall be held by three persons, to be chosen by the iustices of the peace, or a majority ot them, trom the body of the county, the justices included; such per- sons shall be of good moral character, of fair ability, and men of integrity, and when so elected shal be the jus- tices of said inferior court. They shall hold their offices for two years, and until their successors are elected and qualified. Sec. 803." May decline to elect justices of the inferior court. 1876-'7, c. 154, s. 3. If in the opinion of the justices of the peace of any county, or a majority of them, it will not promote the best interests of the people for such courts to be held in such county, it shall be lawful for the said .iustices ot the peace, or a majority of tbem, to dechne to elect the justices of such inferior courts, and in that event there shall be no infeiior court held in such county; but it, in the opinion of the justices of the peace, or a inajority ot them, the general good of the comity would be pro- 816 COURTS, INFERIOR. [Chap. 21. moted, then, and in that event, the said justices of the peace, or a majoritj^ of them, shall provide that said infe- rior courts shall be held for the trial of criminal actions only; and in such case such inferior courts shall exercise only the criminal jurisdiction hereinafter conferred. Sec. 804. Terms, how often held in each year, 1876-'7, c. 154, s. 3. Said courts shall be held for their respective counties four times in each year, unless otherwise determined, on such days as may be determined on and fixed by a major- ity of the justices of the pear-e; but no term of said courts shall be held within less than three months, from and after the fii'st day of the preceding term; and when- ever the justices of the peace of any county shall have elected the justices of the said inferior court, the said in- ferior court shall continue to bs held; but if after three months' notice to that effect, to be posted at the court honse door and at one or more public places in each tov/nship in the county, the justices of the peace of any county, shall determine to discontinue the holding of said courts; then the said couils shall be discontinued, and the records, books and papers of said courts shall be filed in the office of the clerk of the superior court of said county, and all causes and matters and things then pend- ing shall be thereby transferred to the said superior courts, to be therein proceeded in and tried as if the same had been therein docketed upon appeals from courts of justices of the peace: Provided, that no case herem trans- ferred shall be dismissed for want of jmisdiction in jus- tices of the peace. Sec. 805. If the husiiiess cannot be determined in one day, court to adjourn from day to day. 1870-'7, c. 154, s. 4. 1881, c. 332. If the business of the said courts cannot be determined on the first day of the term, the courts may adjourn from day to day not exceeding six days, except in the counties of Wake, New Hanover, Granville and Mecklenbuig. in which the courts maybe held for two weeks, at the end of which time the causes and matters which may be pend- ing, and not finally determined, shall be continued to the next succeeding term. Sec. 806. Majority of the court failing to meet, shcritfto adjourn IVom day to day. 187C-'7, c. 154, s. 5. If, for any cause, a majoiity of any court shall not Chap. 21.] COURTS, INFERIOR. 317 meet for holding the term on a day appointed, any one of the court, and, in the absence of all the members of the court, then the sheriff may adjourn the court from day to day not exceeding three days, until a sutfacient number of the justices of the court can attend. Sec. 807. Process continued. 1876-'7, c. 154, s. 6. No inferior Cf.urt, nor any process there jDendrng, shall be discontinued by reason of its justices failing to hold court upon the day appointed, or by any alteration ot the day appointed for holding it; but in every such case, aU process, matters and things pending shall stand con- tinued;' and all appearances, upon returns of process, shall be made to the next succeeding term, m the same man- ner as if such succeeding term had been the term to which said process had been continued, or such returns or appearance had been made; and all recognizances, bonds and obligations for appearances, and all returns, shall be of the same force and validity for the appearance of any person at such succeeding term, and aU subpoenas for witnesses as effectual as if the next succeeding term had been expressly mentioned therein. Sec. 808. Jurisdiction. 1876-'7, c. 154, s. 7. 1879, c. 92, s. 11. 1881, c. 210. Said inferior courts shall have jurisdiction to inquire of try hear and determine all crimes and misdemeanors, except' those whereof exclusive original jurisdiction is given to courts of justices of the peace, and except the crimes of murder, manslaughter, arson, rape, assault with intent to commit rape, burglary, horse-stealing, libel, perjury, forgery and highway robbery. Said inte- rior courts shall also have jurisdiction of all such affrays as shall be committed within one mile of the place where and during the time such courts are bemg held, and ot all offences whereof exclusive original jurisdiction is given to justices of the peace, if some justice of the peace shall not, within six months after the commission ot the ot- fence, proceed to take official cognizance thereof. stale V Lane, 78— 547; State v. Spurtin, 80—363; Slate v. Williamson. 81-540- Slate v. Moore, 82-659; Slate v. Bentliall, 83-664; Sthtc v. Ham, 83-590; State v. Tiiompson, 83-595; State v. Taylor, 83-601 ; State v. Berry, 83—603; Slate v. Taylor, 8^^-743; State v. Reaves, 85—553. Sec. 80;>. Practice, pleading, &c.; appeals. 1876-'7, c. 154, i-,. 9. 1879, c. 141. Const., Art. IV., s. 8. The practice, pleading, process and procedure in such 318 COURTS, INFERIOR. [Chap. 21. courts shall be, in all respects, as provided for the superi- or courts. Appeals may be taken from these courts to the superior courts in term time for error assigned in matters of law in the same manner and under the same restrictions provided by law for appeals from the superior courts to the supreme court, and the final decision of each superior court shall he certified to the court below, that final judgment may be rendered. State V.Lane. 78—547; State v. Spurtin, 80— 363; State v. Lawrence, 81 —532; Stale V. Ham, 83—590; State v. Tliompson, 83—595; State v. Pol- lard. 83—597; State v. Moore, 84—724; State v. McDowell, 84—798. Sec, 810. Issues of fact. 1876-'7, c. 154, s. 11. In all issues of fact, founded upon trials of petit misde- meanors, the parties may, by a written stipulation filed in the cause, waive their right to have the same deter- mined by a jury, and submit it to a decision of the jus- tices of said inferior courts, and the finding of said justices, or a majority of them, upon the facts, shall have the force and effect of a verdict of a jury. Sec. 811. Jurors provided in same uianner as for supe- rior court. 187G-'7, c. 154, s. 12. Thiriij^ jurors shall be provided for each term of said courts in the same manner that jui'ors are provided for the superior coui'ts, of which jurors, fifteen, drawn and sworn iu the same manner that grand jurors are drawn and sworn in the superior courts, shall constitute the grand jury, with the same powers and duties of* grand juries in the superior courts; the other fifteen shall be petit jurors for the trial of causes, and when the regular l^annel shall be exhausted, talesmen may be summoned and sworn under the same rules as govern such cases in the superior courts. Sec. 812. Justices may elect a clerk, board of commis- sioners to take bond. 187G-'7, c. 154, s. 13. 1883, c. 289, s. 2. In each county in which the said courts shall be held, a majority of the justices of the peace may elect a clerk of said inferior court, who shall enter into a good and suffi- cient bond in a sum not less than five thousand dollars, with sureties thereto, to be accepted and approved by the board of commissioners of the county as is author- ized and i-equired in other cases of county officers giving bonds, for the discharge of all the duties of liis office, who shall keep the records of his court in suitable Chap. 21.] COUETS, INFEKIOR. 319 manner, in books to be furnished by the board of county commiskoners, and shall receive the same fees foi seXs by him rendered as are provided for clerks of the superior courts for similar services, and shall hold his office for two years, and until his successor is chosen and qualified, and shall be subject to the same laws and fSu?ations as are provided for the quahflcations, duties rSpSilitiesandhabihtiesof clerks of the supenov courts: Provided, that if the justices of the peace of any county, or a majority of them, shall fail or dechne to e?ect a clerk, as herein provided, then and m that event the clei5. of 'the superior court shall be.:, officio c ei-k of said inferior court, and shall give hke bond and be subject to the same duties and be liable in the same manner and to the same extent as if he had been elected by the justices of the peace. Davis V. Moss, 80—141. Sec. 813. Notices, summons, executions and other pro- cess. 1876-'7, c. 154, s. 14. ^ .^ . ^ . , It shall be the duty of the clerks of said inferior courts to issue all notices, summons, executions and other pro- cess that may be required by said courts; and it shall be Se duty of the sheriff, deputy sheriffs or coroner, as the case ma^y be, to execute the same, and make due returns thereon, as Aow required in the superior courts, and they shSl be entitled to like fees, and liable to the same fines and penalties as in the superior courts. Sec. 814. Justices shall elect an attorney. 1876-'7, c. The iJsticts of the peace of such county, a majority being present, shall elect an attorney, properly qualified to a"t for and in behalf of the state m the county, who shall hold his office for the term of two years, and until his successor is chosen and qualified, and sha 1 Pjosecute all matters cognizable in such court in behalf of the state, and he shall receive the same fees on conviction as are aUowed solicitors in the superior courts. Sec. 815. Presiding justice; compensation. 1876-'7, c. 154, s. 16. , . , The court shall elect one of their own number presid- ing justice, who shall hold his office until his successor is appointed. The compensation of each member ot the court shall be fixed by a majority of the l^sjices of the peace of the county, not to exceed the sum of thiee doi- 320 COURTS-JUSTICES. [Chap. 22. lars per day each: Provided, in counties where the busi- ness of the court would be thereby facihtated, a majority of the justices of the peace may allow the presiding jus- tice such compensation as they may deem proper and necessary. Seo. 816. Vacancies, how filled. 1876-'7, c. 154, s. 17. The justices of the peace of any county, or a majority of them, shall fill all vacancies occurring in any of the offices herein provided. Sec. 817. May enforce its orders, &c. 1876-'7, c. 154 s. 18. The said courts shall have the same power and author- ity to enforce their orders, judgments and decrees, and the general conduct of their business and punish con- tempts as are conferred upon the superior courts. Each court shall have a seal with the proper device, and stamped with the words, "inferior court, county, ....... . ," and the clerk of the court shall affix the same to his official acts and signatures when necessary. CHAPTER TWENTY-TWO. OOUKTS-JUSTIOES OF THE PEACE. Sbction. 818. Pi'ovisions of article seven of tlie constitution abrogated ; ex- ceptions. 819. Justices of the peace to be elect- ed by the general assembly; additional justices for cities and towns; secretary of state to give certificate; governor to appoint. 820. Two additional justices in eaoli townsliip; terras of office. 831. Within what time to qualify. Hill. Removal out of townsliip six months, to forfeit office. 833. Rcsigniition. 824. May issue process and try causes, where. Section. 825 Office under the United Staten. 826. Punishment on con viol ion of infamous crimes, &c. 837. Filing docljets wiili clerlis. 838. Delivery of unfilled dockets to successor. 839. Filing and delivery, how en- forced. 830. Summons. 831. A civil and a criminal docket to be furnished each justice. 833 Summons, by whom issued. 833. Service and return of summons, 834. Jurisdiction. 835. Justices to dismiss action when the principal .sum the jury box, or destroyed. 863. Tales jurors may be summoned 864. Jury sworn and impaneled verdict. 865. New trial; appeal. 866. Less than six may be a jury, when 867. Not compelled to serve out of township. does not exceed fifty dollars. !. Recovery of damages to real estate. 889. Claim and delivery of personal property. 890. When a deliveiy is claimed. 891. Sufficiency of surety. 893. Criminal jurisdiction of justices of the peace. 322 CO UKTS— JUSTICES. [Chap. 22. Section. 893. Aili'.ition.il jiirisc'.iclioii, peace ■Wiinants, baslaiily, Ac. 894. Proceedings on jicace warrant. 895. Parly convictetl lo pay costs; if accused acf|uiltcd, complain- ant to pay costs. 896. AVlien jusncc has not final juris- diction, must commit accused to prison, or require recogniz- ance for his iippearance to the next term of the court having jurisdiction. 897. When justice is satisfied that lie has jurisdiction, he shall pro- ceed lo determine the case. 898. Jury to be allowed if asked for. 899. What to he submitted to the jury. 900. Accused may appeal; trial de novo in superior court. 901. Justice lo transmit papers to clerk of appelhile court; what his return to set forth. Section. 903. Either party paying fees, en- titled to copy of complaint and other papers. 903. Finding and sentence pleaded in bar of indictment. 904. Justice to imprison the guilty part}', if fine and cost not paid. 905. Imprisoned party to pay costs before discharged. 906. Justices of the peace to make returns of all criminal actions disposed of by them to the clerk of the superior, criminal or inferior court. 907. Actions removable from one justice of the peace to another upon afBdavit; proviso. 908. Process, &c., not to be quashed for want of form. 909. Forms to he used in justice's court. Sec. 818. Provisions of article seven of the constitution abrogated; exceptions. 1870-'7, c. 141, s. 7. _ All the provisions of article seven of the constitution inconsistent with tiiis chapter, except those contained in sections seven, nine and thirteen, are hereby abroi^ated and the provisions of this chapter substituted in their place; subject, Jiowever, to the power of the general as- sembly to alter, amend or abrogate the provisions of this chapter, and to substitute others in their stead, as pro- vided m section fourteen of article seven of the constitu- tion. Sec. 819. Ju.stices of the peace to be elected by the gen- eral assembly; additional justices for cities and towns; secretary of state to give certificate; governor to ap- point. 1870-'7, c. 141, s. 4. Justices of the peace shall be elected by the general as- sembly. At each regular biennial session, one justice of the peace shall be elected for each township in the several counties of the state, and shall hold his office for the term of six years. In addition to the justices of the peace above provided for, and when the teims of those now m office shall expire, there shall be elected bv the Chap. 2-2.] COURTS-JUSTICES. 323 general assembly, for each township, in winch any ^^^^^ or incorporated town is situated, one ]ust ce of the peace, ^nd also one for every one thousand inhabitants m such cS.y or town, who shall hold his office for the term of six years The term of office of a justice of the peace fh^J Kginonthe first Thursday in \^§^^st^\^^itfpd shall election; and those heretofore, or hereafter elected, shall remain n office until their respective terms expire. The seSe at y of state shall certify to the clerks of the supenor S ot^the several counties, a hst f.f^lf\^^^^l^ll neace elected for their several counties, and this shall oe theh conSSsion, and the clerk of the supenor court shSl not ?y said ustices of their election. When new own hips^shall be established, if the g^^.f ^^ '^^^^J^^l^ shall not be in session, the governor ^^^1 ffil thdr iustices of the peace therein, and they shall hold their Ee until the next meeting of the general assembly, and until their successors shaU be elected and qualified. Sec. 830. Two additional justices in each townsliip; terms ofofflcc. 1883, c. 135, ss. 1,3. „ , „ i 4. The general assembly, at the session of 1883, shall elect two iustices of the peace for the several townships of the srateraddition to those provided for by the preceding section' one half of whom shall be elected for the term of foui years and the other lialf for the term of six years, and their successors thereafter for the term of six years. Sec 831. Witliin wbat time to qualify. C. C. P., s. 546. Every person elected or appointed a justice of the peace, shclu, within thirty days after his term of office be- gins, take and subscribe the prescribed oath of office be- fore the clerk of the superior court; which oath shall be fiTed by the clerk of siid court. And any person pre- suming to execute the office of a justice of the Peace without qualifying as herein directed, shaH be guilty of a misdemeanor. State V. Canslcr. 75—443. Sec. 823. Removal out of township six montlisto forfeit office. C. C.P., S.547. . ., • . When any justice of the peace removes out of his town- ship and does not return therein for the space of six rnonths, he shall forfeit and lose his office; and any such justice of the peace presuming to act thereafter con ary to this section, unless re-elected or re-appointed, shaU be guilty of a misdemeanor. 324 COURTS-JUSTICES. [Chap. 22. Sec. 823, Resignation. C. C. P., s. 548. Justices of the peace wishing to resign, nmst deliver tJieir letters of i-esignatiou to the clerk 'of the superior court, who shall file the same. Sec. 824. May issue process and try causes, where. C. C P., s. 549. A justice of the peace may issue a summons or other process anywhere in his county, but he shaE not be com- pelled to try a cause out of the township for which he was elected or appointed. Sec. 825. Office under the United States. C. C. P., s. 550. Any justice of the peace may accept a civil office or appomtment of trust or profit, under the authority of the United States, the duties of which confine him to the county where he is resident. Sec. 826. Punishment on conviction of infomous crimes &c. C. C. P., s. 551. ' Upon the conviction of any justice of the peace, of an infamous crime or of corruption and malpractice in office he shall be removed from office, and he shall be disquali- fied from holding or enjoying any office of honor, trust or profit under this state. State V. Zacbary, Busb., 433; State v. Hawkins, 77— 494- State v Sneed, 84— 81G. Sec. 827. Filing- dockets with clerks. C. C. P., s. 552. Each justice of the peace, as often as he has filled his docket, shall file the same with the clerk of the superior court for his county. Sec. 828. Delivery of unfilled docket to successor. C. C P., s. 553. When a vacancy exists, from any cause, in the office of a justice of the peace, whose docket is not filled, or when such justice goes out of office by expiration of his term, such former justice, if living, and his personal rep- resentative, if dead, shall deliver such docket, and all offi- cial papers to his successoi-, who is authorized to hear and determine any unfinished action on said docket, in the same manner as if such action had been originally brought before such successor. Chap. 22.] COURTS- JUSTICES. 32S Sec. 839. Filing and delivery, how enforced. C. C. P., s. 554. , The duty imposed on the justice, or his personal rep- resentative, by the two preceding sections may be en- forced, on ten days' notice in writing to such justice or his representative, by attachment. Sec. 830. Summons. C. C. P., s. 495. 1868-'9, c. 159, s. 9. Civil actions in these courts shall be commenced by the issuing of a summons. Kirklanil v. Hogan, 65—144. Sec. 831. A civil and a criminal docket to be furnisbed eacU justice. . , ^ i A civil and a ci-iminal docket shall be furnished each iustice, at the expense of the county, by the board ot county commissioners, in which shall be entered a min- ute of every proceeding had in any action betore such justice. Sec. 832. Summons, by whom issued. C. C. P., s. 496. 1874-'5, c. 234. . ■ j The summons shaU be issued by the justice and signed bvhim It shall run in the name of the state, and be di- rected to any constable or other lawful officer, command- ins him to summon the defendant to appear and answer thi complaint of the plaintiff at a place within the county, to be therein specified, and at a time to be therein named, not exceeding thirty days from the date of the summons. It shall also contain the amount of the sum demanded by the plaintiff. Allen V. Jackson, 86—331. Sec. 833. Service and return of summons. C. C. P., s. 497. The officer to whom the summons is delivered shall execute the same within five days after its receipt by him, or immediately, if required to do so by the plaintiff. Before proceeding to execute it, he is entitled to require of the plaintiff his fees for the service. When executed he shall immediately return the summons, with the date and manner of the service, to the justice who issued the same. 326 COURTS— JUSTICES. [Chap. 22. Sec. 834. Jurisdiction. C. C. P., s. 498. 1868-'9, c. 159, s. 3. Justices of the peace shall have exclusive original juris- diction of aU civil actions founded on contract, except : (1) Wherein the sum demanded, exclusive of interest, exceeds two hundred doUars. (2) Wherem the title to real estate is in controversy. WilmiDgton v. Davis, 63—582 ; Hcdsccock v. Davis, 61—650; E has been misled to his prejudice thereby. RULE IX. The nleadings may be amended at any time, before the trial o? during the trial, or upon appeal, when by such amendment stibstantial justice .-1^. be Promoted If ^he amendment be made after the ]oimng of the issue, and ftTnpeS-s to the satisfaction of the court, by oath, that an aSrnment is necessary to the adverse Party '^ con^ ^enuence of such amendment, an adjournment shall be Slnted The court may also, in its discretion reqmre Is a condition of an amendment the payment ot costs to the adverse party Hinton v. Deans, 75—18, RULE X. The justice may at the joining of i^su^, requii-e either r..,vt^ nt the reauest of the other, at that oi some Sier'specified time to exhibit his account or demand, or state the nature thereof as far forth as may he m his uowei andincase of his default, the justice s^iall pre^ Ke him from giving evidence of such parts thereof as have not been so exhibited or stated. 330 COURTS- JUSTICES. [Chap. 22. EULE XI. Either party may demur to a pleading of his adversary, or to any part thereof, when it is not sufficiently explicit to enable him to understand it, or contains no cause of action or defence, although it be taken as true. If the justice deem the objection well founded, he shall order the pleading to be amended on such terms as he may think just; and if the party refuse to amend, the defective pleading shall be disregarded. RtTLE Xm. The justice shall enter all his proceedings in a cause tried before him in his docket. No part of such proceed- ings must be entered on the summons, on the pleadings or on any other paper in the cause. RULE xrv. Execution may be issued on a judgment, rendered in a justice's court, at any time within one year after the ren- dition thereof, and shall be returnable sixty days from the date of the same. Williams v. Williams, 85—383. The code of civil procedure, respecting forms of ac- tions, parties to actions, the times of commencing actions, and the service of process, shall apply to justice's courts. Katzenstein v. R. R. Co., 78—286. RUI^ XVI. The defendant may, on the return of process and be- fore answering, make an offer in writing to allow judg- ment to be taken against him for an amount, to be stated in such offer, with costs. The plaintiff shall thereupon, and before any other proceeding be had in the action, de- termme whether he will accept or reject such offer. If he accept the offer, and give notice thereof in writing, the justice shall file the offer and the acceptance tbereoi, Chap. 22.] COURTS-JUSTICES. 331 and render iudgment accordingly. If notice of accept- ing bfnoVgiven, and if the plaintiff fail to obtain judg- ment fo a |reate'r amount, exclusive of costs, than has S>en specked in the offer, he shall not recover costs, but shall pay to the defendant his costs accruing subsequent to the offer. Ranclv. Harris, 83— 486. RULE xvn. Any iustice before whom an action is brought, may, on sufficient excuse therefor shown on the affidavit of either party or any person for him, continue such action from timeto time for trial; but such continuance shallnot exceed thirty days. Sec 841. Execution, on wliat and from what time, alien. C. C. P., s. 505. 18G8, c. 159, s. 5. Executions issued by a justice, which must be directed to any constable or other lawful officer of the county shall be a hen on the goods and chattels of the defendant named therein, from the levy thereof only, but shad not be levied on or enforced in any manner aga)nst real es- tate; but when a justice's judgment shall be made a judg- ment of the superior court, as is elsewhere provided, the execution shall be capable of being levied and collected out of any property of the defendant, in execution and it shall be a hen on the real estate of said defendant from the time when it becomes a judgment of the superior court. Sec 843. Stay of execution; stay granted by justice. C. C. P., s. 505 (a). 1868-'9, c. 272. In all actions founded on contract, whereon judgments are rendered in justices' courts, stay of execution, it prayed for at the trial by the defendant or his attorney, shall be granted by the justices in the following manner: For any sum not exceeding twenty-five dollars one month; any sum above twenty-five dollars and not exceeding fifty dollars, three months; for any sura above fifty dollars and not exceeding one hundred dollars, tour months; for any sum above one hundred do ars, six months But no stay of execution shall be allowed in any action wherein judgment is rendered on a former judgment taken before a justice of the peace. Sec. 843. Security on stay of execution. C. C. P., s. 506. The party praying for a stay of execution shall, within ten days after the trial, give sufficient security, approved 332 COURTS— JUSTICES. [Chap. 22. by the jut^tice, for payment of the judgment, with interest thereon till paid, and cost; and the acknowledgment of the surety, entered by the justice in his docket and signed by the surety, shall be sufficient to bind such surety. If the judgment be not discharged at the time to which execution has been stayed, the justice who awarded the judgment shall issue execution against the principal, or surety, or both. Bariiuger v. Allison, 78 — 79. Sec. 844. Former judgment. C. C. P., s. 507. On the trial of an action founded on a former judg- ment, tJie judgment itself shall be evidence of the debt, subject to such payments as have been made. Sec. 845. Application for re-hearing. C. C. P., s. 508. When a judgment has been rendered by a justice, in the absence of either party, and when such absence was caused by the sickness, excusable mistake or neglect of, the party, such absent party, his agent or attorney, may within ten days after the date of such judgment, apply for relief to the justice who awarded the same, by affida- vit, setting forth the facts, which affidavit must be filed by the justice; whereupon the justice, if he deem the af- fidavit sufficient, shall open the case for reconsideration; and to this end, he shall issue a summons, directed to a constable, or other lawful officer to cause the adverse party, together with the witnesses on both sides, to appear before him at a place and at a time, not exceeding twenty days, to be specified in the summons, when the complaint shall be re-heard, and the same proceedings had as if the case had never been acted on. If execution has been issued on the judgment, the justice shall direct an order to the officer having such execution in his hands, com- manding him to forbear all further proceedings thereon, and to return the same to the justice forthwith. Hogan V. Kirkliind, 64—250; Froneburger v. Lee, 66—333. Sec. 846. Justice's judgment removed to another county, how. C. C. P., s. 509. Any person, who may desire to have a justice's judg- ment in his favor removed to another county to lie en- forced against the goods and chattels of the defendant, must obtain from the justice who rendered the judgment a transcript thereof, under his hand; and must further procure a certificate from the clerk of the superior court of the county where the judgment was rendered, under Chap. 22.] COUETS-JUSTICES. 333 the seal of his court, that the justice who gave the judg- mlnt was at the -endition thereof, a justice of said SuntV On such transcript of the judgment, thus cer - fied any justice in any other county may award execu- tion for the suni therein expressed. McAdeu V. Bannister, 63—478. Sec 84=7. Witnesses, penalties, &c. C. C. P., s. 510. The justice on apphcation of either party, shall, by a suWna or by an order in writing on the process, direct tbP roSable or other officer to summon witnesses to ap^ n£i and " ve estimony at the time and place appointed For thptrLal. Each witness, failing to appear, sha 1 foiiejt and pay eight dollars to the party at whose instance he was sim^moned, and shall be t'^^rther hab e to s.^^ a^^ for all damage sustained by non-attendance, i ne^nne herein imposed may be recovered, on motion before the iustke wo tried the action, unless the w:tness, on a Sice orAve days, by affidavit or other proof, show suf- ficient excuse for his failure to attend. Sec 848. Penalty for swearing before a justice, &c. K. C, cll5. s. 2. 1741, C.30, s. 3. . Tf'aiiv person shall profanely swear or curse m the hearingot- a jisticeof the peace, l^oldmg his cmrt, the justice may commit him for a contempt, or fine him fifty cents. Sec. 849. Code of civil procedure applicable. C. C. P., The^^ode of civil procedure is applicable except as herein otherwTse directed, to proceedings in justice's courts con- cerning ^'arres^ and bail," substituting the word ;c07^- S ?^for the word "s/.erzlf," and the words -justice of the peace" L the words ^^udge, court or clerk," ^-hen- ever they occur in said chapter. Sec 850. Arrest, in what cases. C. C. P., s. 512. The defendant may be arrested in the following cases: a When the det'endant has been guilty o a fraud in coritracting the debt or obligation for which the action is ^72Twhen the defendant has removed or disposed of his property, or is about to do so, with mtent to defraud ^'^-fwn^an' action to recover the possession of personal property unjustly detained, when the property or any 334 COUETS-JUSTICES. [Chap. 22. part thereof has been concealed, removed or disposed of, so that it cannot be found or taken by tlie sheritf or con- stable, and with the intent that it should not be so found or taken, or with intent to deprive the plaintiff of the benefit thereof, or for damages for injuring or for wrong- fully taking or converting peisonal property. Sec. 851. Order of arrest, by whom made. C. C. P., s. 513. An order for the arrest of the defendant must be ob- tamed from the justice of the peace before whom the action is brought. Sec. 853. Affidavit to obtain order. C. C. P., s. 51e a jury, when. C. C. P., s. 53». Six jurors shall constitute a jury in a justice's court, but, by consent of both parties, a less number may con- stitute it. Sec. 867. Not compelled to serve out of township. C. C. P., s. 530. No person is compelled to serve as a juror in a justice's court out of his own township, except as a talesman. Sec. 868. Jurors serving on trial. C. C. P., s. 531. The scrolls containing the names of the jurors who serve on the trial of an issue must be placed in the jury- box in division marked number two, until all the scrolls in division maiked number one have been drawn out. As often as that may happen, the whole number o- scrolls shall be returned to division marked number one, to be drawn out as in the first instance. Sec. 869. Deposit of jury fees. C. C. P., s. 633. Before a party is entitled to a jury, he shall deposit with the justice the sum of three dollars for jury fees, and the Chap. 22.J COTJETS-JUSTICES. 337 included in thesudgmen as P^^^°f,.'^= ~S=;,t, but uot S^elwir TtluMu Sund d thi party thefees of all jurors who do not attend. sec. 870. Adjournmentafterreturnofthejury. C. C. P., N; adjournment shall ^l^lf^^:^^t^!rt^7Mt cents each, such amount to be an no cj^y^J^^^^^^^^^ judgment as part of th^^ co^fe «- ^^^.^^^liTappomted', the lurors shaU attend at i"« J-^"'^. and the fees for the without further ^^^"f "?«"^. ^^^i^^^^^^^^^ iury, deposited with the justice accoiu ^ i Sec. 871. NO process issued by justice outside his own S which any suci'ion-resident defendant resides. Lilly V. Purcell, 78-83. «o. 87'> Process issued from a justice of the Peace in Sec. 872. l'>^«^*'=^y ^ ij, another county rendered ::ii;;'Vnlrs"emerot'justice in defendant's county. T^trntiractions^in courts of justices of the peace In all civil acuonb i ^ f^^d^nts may reside m a whei^ one or moie of the deto.^^.^, .^ ^^^^^ ^^ f^'nL iustice ofTe pe^ the county where ^°^ /ptindant or defendants may reside, upon proof Z^^SiXS^ 1-— ^^^--^ ^^'^ 338 COUETS— JUSTICES. [Chap. 22. executed in like manner as if it had been originally issued by the justice indorsing it. Wooten V. Maultsby, 69 — 463; Self v. Jenkins. 71—578; Sossamer v. Hinson, 73—578; Lilly v. Purcell, 78—83. Sec. 873. Certificate of the clerk of superior court ; en- try of date. 1870-'l, c. 60, s. 3. In all cases referred to in the preceding section, it shall be lawful for the clerk of the superior court of the county in which the action is brought, to certify, under the seal of his court, on the process or a duplicate there- of, that the justice of the peace who issued the same is an acting justice of the peace in his county. And in all such cases it shall be the duty of any sheriff or constable to whom it may be directed, to make an entry of the date of its reception, and to execute the same as provided for the service of civil process in courts of justices of the peace, and return it by mail to the justice of the peace from whose court it issued. Sec. 874. No process served under ten days' notice. 1870-'l, c. OO, s. 3. 1876-'7, c. 57. No justice of the peace shall enter a judgment under the two preceding sections against any defendant who may be a non-resident of his county, unless it shall appear that the process was duly served upon liim at least ten days before the return day of the same. Sec. 875. Appeal; execution. C. C. P., s. 534. 1876-'7, c. 251, s. 6. The party against whom judgment is rendered in any civil action in a justice's court may appeal to the superior court from the same; but no appeal shall prevent the is- suing of an execution on such judgment or work a stay thereof, except as hereinafter provided. Marshall v. Lester, 2 Mur., 227; Grissett v. Smith, 1 Phil., 164; Critcher V. McCadden, 64—363; Steadman v. Jones, 65—388: Fronebcrger v. Lee, 66—333; Marsh v. Cohen, 68—283; Green v. Hobgood, 74—234; Carmer v. Evers, 80—55; Koonce v. Pelletier, 83—236; State v. Grouse, 86—017; Hahn v. Latham, 87—172. Sec. 876. Appeal ; when to be taken. C. C. P., s. 535. 1876-'7, c. 251, s. 7. The appellant shall, within ten days after judgment, serve a notice of appeal, stating the grounds upon which the appeal is founded. If the judgment is "rendered upon process not personally served, and the defendant Chap. 22.] COURTS-JUSTICES. 339 did not appear and answer, he shall have fifteen days, after personal notice of the rendition of the judgment, to serve the notice of appeal herein provided for. Stcadmaa v. Jones, G5-388; Marsh v. Colien, 68-283; Green v. Hob- good. 74-234; McDaniel v. Watldus, 7G-399; Sparrow v^»^^'i''«°" Col- lege, 77-35; R. R. Co, v. Richardson, 83-343; Spaugh v. Bouer, 85-208; Hahn v. Latham, 87—173. Sec 877. Wben appellant not to give written notice. 1801)-'70, c. 187, s. 1. 187G-'7, c. 361,s. 8. Where any party prays an appeal from a judgment rendered in a justice's court, and the adverse party is present in person or by attorney at the time of the prayer, the appellant shall not be compelled to give any written notice of appeal either to the justice or to the adverse party. Shepherd v. Lane, 3 Dev., 148; Croom v. Mornsey, 63-591; Steadman V Jones 65-388; Mar^h v. Cohen, 68-283; Com'rs v. Capeheart, 71-156; Richardson v.Debnam, 75-890; Sutlle v. Green, 7&-76. Sec. 878. Justice to make return of the appeal to the clerk of the appellate court within ten days. C. C. P., s. 587. , /., ,, -J! The instice shall, within ten days after the service of the notice of appeal on him, make a retui-n to the appel- late court and file with the clerk thereof the papers, pro- ceedings and judgment in the case, with the notice of ap- peal served on him. He may be compelled to make such return by attachment. But no justice shall be bound to make such return until the fees, prescribed by law for this service, be paid him. The fee so paid shall ue m- cluded in the costs, in case the judgment appealed from is reversed. Ledbetter v. Osborne, 66-379; Poston v. Rose, 87—279. Sec. 879. If return defective, it may be amended. C. C. If the return be defective, the judge or clerk of the ap- pellate court may direct a further or amended return, as often as may be necessary, and may compel a comph- ance with the order by attachment. Sec. 880. Clerk of superior court to docket appeal. C. C. P., s. 539. 187C-'7, c. 251, s.8. When the return is made, the clerk of the appeUate court shall docket the case on his trial docket, for a new 340 COURTS— JUSTICES. [Chap. 22. trial of the whole matter at the ensuing term of said court. Cowles V. Hays, 67—128; Com'rs v. Addington, 68—254 ; Com'rs v. Capeheart, 71—156. Sec. 881. The appeal to be heard on the original papers. C. C. P., s. 640. The appeal shall, in all cases, be heard on the original papers, and no copy thereof need be furnished for the use of the appellate court. Ledbetter v. Osborne, 66—379; Com'rs v. Capeheart, 71—156. Sec. 882. Execution of judgment, how stayed. C. C. P., s. 541. If the appellant desire a stay of execution of the judg- ment, he may apply, at any time, to the clerk of the ap- pellate court for leave to give the undertaking, as pro- vided in a subsequent section; vpho shall, upon the un- dertaking being given, make an order that all proceed- ings on the judgment be stayed. Rush V. Steamboat Co., 68—72; DeiT v. Stubbs, 83—539. Sec. 883. Appellant may give undertaking. 1869-'70, c. 187, s. 2. In all cases of appeal from justices' courts the appellant may give an undertaking for the appeal before the justice vi^ho tried the cause, and who shaU indorse his approval thereon, instead of before the clerk of the appellate court. Sec. 884. Same, undertaking to be given. C. C. P., s. 642. 1879, c. 68. The undertaking shall be in writing, executed by one or more sufficient sureties, to be approved by the justice or clerk making the order, to the effect that if judgment be rendered against the appellant, the sureties will pay the amount together with ah costs awarded against the the appellaiit, and when judgment shall be rendered against the appellant, the appellate court shall give judg- ment against the said sureties. Rush V. Steamboat Co., 08-72; Bank v. McArthur, 83—107; Hamilton V. Mooney, 84—12; Brown v. Brittain, 84—552. Sec. 885. Same, delivery and service of order on whom. C. C. P., s. 543, A deUvery of a certified copy of the order hereinbefore mentioned to the justice of the peace, shall stay the issuing of the execution on tlie judgment; if it have been Chap. 22.] COURTS— JUSTICES. 341 issued, the service of a certified copy of such order on the officer holding the execution shall stay further proceed- ings thereon. A certified copy of such order shall also be served on the respondent, or on his agent or attorney, within ten days after the making thereof. Sec. 886. Kestitution. C. C. P., s. 544. If the judgment appealed from, or any part thereof, be paid or collected, and the judgment be afterv^ards re- versed, the appellate court shall order the amount paid or collected to be restored, with interest from the time of such payment or collection. The order may be obtained on proof of the facts made at or after the hearing of the appeal, on a previous notice of six days. If the order be obtained before the judgment of reversal is entered, the amount may be mcluded in the judgment. Sec. 887. Jurisdiction, where property does not exceed fifty dollars. 1876-'7, c. 251, s. 1. Justices of the peace shall have concurrent jurisdiction of civil actions not founded on contract, wherein the value of the property in controversy does not exceed fifty dollars. Krider v. Ramsay, 79—354; McDonald t. Cannon, 83—245; Womble v. Leach, 83—84; Jones v. Palmer, 83—303; Boyce v. Williams, 84^375; Allen v. Jackson, 86—311; Boing v. R. R. Co., 87—360. Sec. 888. Recovery of damages to real estate. 1876-'7, c. 351, s. 3. All actions in a court of a justice of the peace for the recovery of damages to real estate, or for the conversion of personal property, or any injury thereto, shall be commenced and prosecuted to judgment under the same rules of procedure as provided in civil actions in a jus- tice's court. Sec. 889. Claimand delivery of personal property. 1876- '7. c. 351, s. 3. The code of civil procedure is applicable, except as herein otherwise provided, to proceedings in justices' courts concerning claim and delivery of personal proper- ty, substituting the words "justice of the peace" for "clerk or clerks of the court," and inserting the words, "or constable" after "sheriff," whenever they occur. 342 COURTS— JUSTICES. [Chap. 22. Sec. 890. Wlien a delivery is claimed. 1876-'7, c. 251, s. 4. When a delivery is claimed an affidavit must be made by the plaintiff, his agent or attorney, before the justice in whose court the action is to be tried or some other jus- tice of the peace, showing: (1) That the plaintiff is the owner of the property claimed (particularly describing it) or is lawfully entitled to its possession by virtue of a special property therein, the facts in respect to which shall be set forth; (2) That the property is wrongfully detained by the de- fendant; (3) The alleged cause of detention thereof according to his best knowledge, information and belief; (4) That the same has not been taken for a tax assess- ment or fine pursuant to a statute, or seized under an exe- cution or attachment against the property of the plain- tiff, or if so seized that it is by statute exempt from such seizure; and (5) The actual value of the property. Poslon V. Rose, 87—279. Sec. 891. Sufficiency of sureties. 1876-'7, c. 251, s. 5. The defendant within three days after the service of a copy of the affidavit and undertaking may give notice to the officer serving the same, to the plaintiff" or his attor- ney, that he excepts to the sufficiency of the sureties; if he fail to do so he shall be deemed to have waived all ob- jection to them. When the defendant excepts to the sureties they shall justify before the justice on giving to the defendant or his attorney notice of the time and place, which shall not be more than three days from the service of notice of tlie exception, and the sheriff or con- stable shall be responsible for the sufficiency of the sureties until the objection to them is waived as above piovided, or until they shaU. justify or new sureties shall be substituted and justify. Sec. 892. Criminal jurisdiction of justices of the peace. Const., Art. IV., s. 27. 1879, c. 92, ss. 2, 11. 1881, c. 210. Justices of the peace shall have exclusive original juris- diction of all assaults, assaults and batteries, and affrays, where no deadly weapon is used and no serious damage is done, and of all criminal matters arising within their counties, where the punishment prescribed by law shall not exceed a fine of fifty dollars, or imprisonment for HAP. 22.] COURTS- JUSTICES. 3i3 ,hirty days: Provided, that justices of the peace shall have no jurisdiction over assaults with intent to kill, or assaults with intent to commit rape, except as commit- ting magistrates: Provided further, that nothing m this section shall prevent the superior, inferior or criminal coSs from finally hearing and determming such affrays as shall be committed withm one mile of the place where and during the time such court is being held; nor shall Sis section be construed to prevent said courts from assuming jurisdiction of ah offences whereof exclusive odginal!urisdiction is given to justices of the peace, if some justice of the peace, withm six months after the commission of the offence, shall not have proceeded to take official cognizance of the same. Passim 1868-'9, c. 178, sub. c. 4. s. 2 ; State v. Johnson, 64-591; State V Hampton, 77-536; Stale v. Edney, 80-360; State v. Moore, 83-659 ; State V Taylor 83-601; State v. Berry, 83-603; State v. Taylor. 84-773; State V. Watts, 85-517; State v. Keaves, 85-553; State v. Powell, 86—040. Sec. 893. Additional jurisdiction, peace warrants, bast- ardy, &c. 1879, c. 93, s. 2. Justices of the peace shall also have exclusive original jurisdiction of all such peace warrants and proceedings thereunder as they shall assume jurisdiction of, and of all bastardy proceedings and issues arising thereunder, and to take bonds from defendants in such proceedmgs, as provided for in the chapter entitled " Bastardy." State V. Bass, 75—139; State v. Cooley, 78-538; State v. Parish, 83-618; State V. Sneed. 84—816; State v. Crouse, 86—617. Sec. 894. Proceedings on peace warrant. 1879, c. 92, s. 9. Whenever any person complained of on a peace war- rant shall be brought before a justice of the peace, such nerson may be required to enter into a recognizance, payable to the state of North Carohna m such sum not exceeding one thousand dollars, as such justice shall direct wtth one or luore sufficient sureties, to appear be- fore some justice of the peace within a period not exceed- iuf six months, and not depart the court without leave and in the meanwhile to keep the peace and be of good behavior towards all the people of the state, and particu- larly towards the person requiring such security. 344 COURTS— JUSTICES. [Chap. 22. Sec. 895. Party convicted to pay costs; if accused acquit- ted, complainant to pay costs. 1868-'9, c. 178, sub chap. 4, s. 19. 1879, c. 92, s. 3. 1881, c. 176. The party convicted in a criminal action or proceeding before a justice, shall always be adjudged to pay the costs; and if the party charged be acquitted, the complainant shall be adjudged to pay the costs ; and may be impris- oned for the non-payment thereof, if the justice shall ad- judge that the prosecution was frivolous or malicious. But in no action or proceeding, commenced or tried in a court of a justice of the peace, shall the county be hable to pay any costs. Stale V. Murdock, 85—598. Sec. 896. When justice has not final jurisdiction, must commit accused to prison, or require recognizance for his appearance to the next term of the court having jurisdiction. 1868-'9, c. 178, sub chap. 4, s. 7. 1879, c. 302, s. 2. In all cases where a justice of the peace shall not have final jurisdiction of the offence, he shall desist from any final determination of the action or complaint, and either commit the accused to prison, or require from him a, re- cognizance with sufficient sureties and in a sufficient amount for his appearance at the next term of any court of his county having jurisdiction, to answer the charge. He shall also bind the complainant and the witnesses over to appear in Uke manner and testify; and he shall return the papers, with a statement of his proceedings, to the clerk of the court on or before the fii-st day of the next term thereof. State V. Sneed, 84—816. Sec. 897. When justice is satisfied that he has jurisdic- tion, he shall proceed to determine the case. 1868-'9, c. 178, sub chap. 4, s. 8. When the justice shall be satisfied that he has jurisdic- tion, if no jury shall be asked for, he shall proceed to de- termine the case, and shall either acquit the accused or find him guilty, and sentence him to such punishment as the case may require, not to exceed in any case a fine of fifty dollars, or imprisonment in the county jail for thirty days. Sec. 898. Jury to be allowed, if asked for. 1868-'9, c. 178, sub chap. 4, s. 9. If either the complainant or the accused shall ask for Chap. 22.] COUETS-JUSTICES. 345 it, the justice shall allow a trial by juiy, as is pro- vided in civil actions before justices of the peace. Sec. 899. What to be submitted to the jury. 1868-'9, c. 178, sub chap. 4, s. 10. In case a trial byjury shall be had, the justice shall submit to the jury in each case simply the question of the guilt or innocence of the accused of the offence charged, and shall enter the verdict on his docket, and adjudge accordingly. Sec. 900. Accused may appeal; trial de novo in superior court. 1868-'9, c. 178, sub chap. 4, s. 11. 1879, c. 92, s. 10. The accused may appeal from the sentence of the jus- tice to the superior court of the county. On such appeal being prayed, the justice shall recognize both the prose- cutor and the accused, and all the material witnesses, to appear at the next term of the court, in such sums as he shall think proper; and he may require the accused to give sureties for liis appearance as aforesaid. In all cases of appeal, the trial shall be anew, without prejudice from the former proceedings. State V. Quick, 72—241; Slate v. Tyler. 85—569; SUter. Murdock, 85— 598; State v. Powell, 86—640. Sec. 901. Justice to transmit papers to clerk of appellate court; what his return to set forth. 1868-'9, c. 178, s»ib chap. 4, s. 12. In every case whether an appeal shall be prayed or not, the justice shall forthwith transmit to the clerk of the superior court of the county all papers in the case, to- gether with a copy of his prehminary finding, of the ver- dict, if any, of his determination of the facts if there shall have been no trial by jury, and of the sentence, in which shali be set forth all the facts found by him, as well as his finding of those which were alleged in the complaint, and which were found by him not to be proved. Sec. 902. Either party paying fees, entitled to copy of complaint and other papers. 1868-'9, c. 178, sub chap. 4, s. 13. He shall give to either party on request, and on pay- ment of his lawful fee, a copy of the complaint and of his finding and sentence. 3i6 COURTS— JUSTICES. [Chap. 22. Sec. 903. Finding and sentence pleaded in bar of indict- ment. 186S-'9, c. 178, sub chap. 4, s. 14. Such findin,^ and sentence may be pleaded in bar of any indictment subsequently found for the same offence. Sec. 904. Justice to imprison the gniilty party, if fine and costs not paid. 1868-'9, c. 178, sub chap. 4, s. 15. If the justice shall sentence the party found by him to be guilty to pay a fine and costs, and the same shall not be immediately paid, the justice shall commit the guilty person to the county jail until the same shall be paid, or until he shall be otherwise discharged according to law. Sec. 905. Imprisoned party to pay costs before discharged. 1868-'9, c. 178, sub chap. 4, s. 16. If the sentence be that the guilty person be imprisoned for a time certain, and that he pay the costs, there shaU be added to it that he shall remain in prison after the ex- piration of the fixed time for his imprisonment until the costs shall be paid; or until he shall otherwise be dis- charged according to law. State V. Cannady, 78—539. Sec. 906. Justices of the peace to make returns of all criminal actions disi>osed of by them to the clerk of the superior, criminal or inferior court. 1869-'70, c. 110. It shall be the duty of each justice of the peace on or before Monday of every term of the superior, criminal or inferior court of his county, to furnish the clerk of said court with a list of the names and offences of all parties tried and finally disposed of by such justice of the peace, together with the papers in each case, in all criminal actions, since the last term of the supeiior, criminal or inferior court. The clerk of the court shall hand a copy of such list to the sohcitor and to the grand jury at each term of the court; and no indictment shall be found against any party whose case has been so finally disposed of by any justice of the peace: Provided, that this sec- tion shaU not be deemed to extend or enlarge or other- wise affect the jurisdiction of justices of the peace, ex- cept as provided by law. Sec. 907. Actions removable from one justice of the peace to another upon athdavit; proviso. 1880, c. 15. 1883, c. 60. In all proceedings and trials, both criminal and civil, before justices of the peace, the justice before whom the Chap. 22.J COURTS-JUSTICES. 347 writ or summons is returnable, shall upon affidavit made by either party to the action that he is unable to obtain iustice before him, move the same to some other justice Sing in the same township, or to the justice ot some neiahbSring township if there be no other justice m said township: Provided, thRt no cause shall be more than on^e removed; Provided further, that such motion to re- move shaU be made before evidence is introduced Sec. 908. Process, &c., not to be auasbed for want of form. B. C, c. 3, s. 1. K. C, c. 62, s. 32. K. S., c. 3, s. 1. 1794, c. 414, s. 16. , ^ • x- Coprocessor other proceeding begun before a ]ustic^ ofWpeace, whether in a civil or a criminal action, shaU be quashed or set aside, for the want of form, if the essential matters are set forth therem; and the court in whkh any such action shall be pending shall have power to kmend any warrant, process, pleading or pro- ceeding in such action, either in form or substance for thrfurtherance of justice, on such terms as shall be deemed just, at any time either before or after judg- "Tadc V Young. 2 D. and B., 526; Clark v. Hellen. 1 Ired., 431; Green v.Serry,2 Ired., 344; Green v. Cole, 13 Ired.. 425; State v. Bryson. 84-780. Sec. 909. Forms to be used injustice's court. 1868-'9, c. The following forms, or substantially similar, shall be sufficient in all cases of proceedings in civil actions, pro- vided for in this chapter: [No. 1.] COmiON FORM. A B ) against > Justice's Court. State' of" lSr&' Carolina, to any constable or other lawful officer of ...county, greetikg: We 'command you to summon C D. to appear before G.WH., Esq one of the justices of the V'^^^^;i^^^^^l^,-;-: ^^ ^l^^ ^ Justice of the Peace. 348 COURTS - JUSTICES. [Chap. 22. [No. 2.] FORM ON ALLOWING APPLICATION TO RE-HEAR. (Title, &c., as in No. 1.) Whereas, A. B., plain'iff above-named, (or C. D., defendant above- named) lias applied by affidavit, which is filed, for a re-hearing in the ab )ve cutitled aciion; wherein judgment was rendered against the sa'd plaiutlH, (or defendant) in his absence, at the trial thereof, before the nnder- signed on the. . . .daj' of ,18 . . ; and such application having been allowed, and the cause opened for reconsideratiou. Now, therefore, we command yon to summon the said plaintiff (or defendant) to appear before G. W. II., Esq., one of the justices of the peace for the county of on the day of 18. . ., at , in said county; when and where the complaint will be re-heard and Ihi; same proceedings be had as if the C;isc had not been acted on; and have you then and there this precept with the date and manner of its service. Hereof fail not. Witness our said justice, this. . . .day of 18. . . G. W. U Justice of tlie Peace. [No. 3.] AFFIDAVIT TO OBTAIN ATTACHMENT. General Form. A B ) against } County of C D ) A. B., plaintiff above-named, being duly sworn, deposes and says: 1. That the defendant C. D. is indebted to the plaintiff in the sura of dollars, (state any cause of action founded on contract, specifying the amount of the claim, and the grounds thereof.) 2. That the said defendant (state any fact or facts, so as to bring the ease within one of tlic classes in which au attachment may issue. The facts must be stated positively and allirmatively, not merely upon informa- tion and belief, except where a. fact is alleged with a pariicidar intent. The intent in such case may be stated as on information and belief. See No. 4). . A.B Sworn to and subscribed before me, this. . . .day of , 18. . . G. W. II Justice of the Peace. [No. 4.] ANOTHER FORM OF AFFIDAVXT. (Title, &c., as in No. 8). A. B., plaintiff above-named, being duly sworn, deposes and snys: 1. That the defendant, C. U. is indebted to plaintiff in the .sum of _.'. dollars, lor goods sold and delivered to said defendant by the plaintiff on or about the day of , 18... Chap. 22.] COURTS-JUSTICES. 349 3. That the said defendant has ^^^^^^^^^ ^,^^0 creditors). ^, B (Sworn to, &c., as in No. 2.) [No. 5.n i i AFFIDAVIT AGAINST A FOREIGN CORPORATION. I ^ a^'aiMi [countyof The Highland Mining Company. ) permission of plainufE, from the .... day ot ,10.., "^ 2V Tbkt^^he defendants a foreign corporation, created under the laws of *'3.' Tlat the canse of action above stated, arose in th^ sUte.^ (Sworn to, &c., aa in No. 3.) [No. 6.] UNDERTAKING UPON ATTACHMENT. (Title as in No. 3 or 5.) Whekcas the plaintiff above named is about to apply for a warrant of son of such attachment. J. W. B w. b. M Signed and delivered in the presence of G. W. H., Esq., this .... day of l^-- G.W.H Justice of tlie Peace. [No. 7.] WARRANT OF ATTACHMENT. 'agriimi [ Justice's Court. Q 1) ) ' State'ot North Carolina, to any constable or other lawful officer of county, GKEKTINQ: 350 COUETS— JUSTICES. [Chap. 22. _ It appearing by affidavit to the undei-signcd that a cause of action exists in favor of the plaintiff against the defendant for the sum of dol- lars, and that the defendant is not a resident of this state (orollicrwise as the fact may be), and the plaiiilifl having giving the undertaking as' re- quired by law : Now. therefore, you are commanflcd forthwith to attach and safely keep all the property of tlie said defenJant C. D. in your county, or so much thereof as may bo sufficient to .= ilisfy the said phdntiff's demand, with costs and expenses; and have you Ibis warrant before G. W. II., one of the jus- tices of the peace for your county, at his oflice in said county, on the day of 18. ., with your proceedings hereon. Witness our said justice this day of 18 G.W. H..' Justice of Vie Peace. [No. 8.] officer's return to be indorsed on attachment. I, O. p. M., constable (or sheriff) of county, do hereby return that, by virtue of the within attachment, I have seized and taken into my possession the tangible personal property (or, have levied on the real estate, as tlie case may be.) of the defendant within named, specified in the inven- tory hereto annexed. Dated this day of ,18 O.P.M [No. 9.] inventory op property attached to above return. A B i againft >• County of C D j I do hereby certify that the following is a true and just inventory of all the property seized or levied on by me under a warrant of attachment issued 111 the above entitled action by G. W. 11 , Esq., with a statement of the books, vouchers, papers, rights and credits taken into my custody by virtue of said warrant. (Insert list of property by items.) I do further testify that the following properly mentioned in the above invenlory is perishable, and that the expense of keepinsr the same until the termination of the suit would exceed one-fifth of its value- and I do hereby apply to this court for authority to sell the same. (Insert a list of perish- able properly.) Dated this day of 18. . O.P.M Constable {or Sheriff.) [No. 10.] ORDER DIRECTING SALE OF PERISHABLE PROPERTY. A B 1 against \ Justice's Court. C D County of It appearing by the inventory returned by O. P. M., constable (or Bhcrilr,) under the warrant of attachment granted in this action, that the CHAP. 22.] COURTS-JUSTICES. 351 following property n^entioned in said inventory is perishable, to wif. (In- sert here' lie list o^ P^'^'f ,f f P^l^fiid^P operty be sold by Ibe said officer at It is tbercfore ordered tbat '' « ^?'^ P' "^^ ,^„ii diem advisable, aud tbat ^ST^S^^^^ottS:^:^^ sale of personal prope.ty on execulinn. nmeeeds of such sale be retained by said had not been sold. ig Dated this dayof G. W. H ■ • •- Jmtice of the Peace. [No. 11-] SmS'iv, upon, n' SSSo^ilTd DesSibi a. p.BicuMy » ^DatedtWs dayof O. P. M •••-., Constable (or Sheriff.) 6er«a with the above ""' «.™ '°"„„ ",=th. ^mant «t » Daledlhis day of O.'P. M „, .,, ConataUe {pr Sheriff.) [No. 12.] OKDEK PIKECTING THIRD PERSON (H. B.) TO APPEAR ANB BE "" EXAMINED. ^ «^;j^« I Justice's Court. C D ) County of iliallie sair II. !>• ■>;'"=■"'" ■ , „.;,i ii r to the cleienuaui, ui mv- ■me at mv office, on Ibe • • - d.iy ot amincd on oatli concerning the same. ^^ Daledtbis day ot G. W. H JuMice of tlus Peace. A B.. against J Justice's Court. C D.. 852 COURTS- JUSTICES. [Chap. 22. [No. 13.] ATTACHMENT TO ENFORCE OBEDIENCE TO ABOVE ORDER. !• Slate of North Csirolina, to any constable or other lawful officer of county, GREETING : Whkueas, it appears that H. B. w.is duly served on the day of ;. ; • • '*'■ •■ ^^'."i '^?, order issued by G. W. II., Esq.. one of our ius- tices of tbepenne for said county, requiring said H. R. toatteud befoie said justice at Ins offlce, in s:iid county, on the day of 18 iind be examined on oath concerning a certain debt owing 'to Vlie defendant named ,n the above action, by tlie said H. B. (or property held by the said . J ■' oeuefit of the defendant, or otherwise, as tlie case niay be) And whereas, the said H. B., in contempt of said order, has refused or neglected, and doth slill refuse or neglect, to appear and be examined on oatli, as in said order he is required to do; Now, therefore; we command yon iha't you forthwith attach the said H B., so as to have his body before G. W. H.. Esq., one of our iustices of the peace for your county, on the .... day of 18. ., at his office in said county, then and there to answer, touching the fontempt which he as IS alleged, hath committed aiiainst our aiuhorily; and further to perform and alude l>y such order as our said justice sUall make in his behalf And have you then and there this writ, with a return, under your baud of vour proceedings thereon. '' ", »*ijuu. Hereof, fail not at your peril. Witness, our said justice, this day of 18 Q.'wi'n. .'.'.' Justice of tlie Peace. [No. 14.] UNDERTAKING ON DISCHARGE OP ATTACHMENT. (Title of the Cause as in No. 3.) Wherkas, the property of the above named C. D. has been attached and the defendant desires a discharge of said attachment on civin"- security according to law. ^ ,s a^^.^ll^,y Now. therefore, wc, B. B., of county, and D D of county, undertake in the sum of.... dollars, (the sum named must be "at leastdoub e the amount claimed by plaintiff,) ihat if the said attachment be discharged, we will pay to the plaintiflf, on demand, the amount of the judgment tliat may be recovered ag.-iiust the defendant in this action Dated this day of ,18 ... (Signed) B. B. D.D. ACECNOWLEDGMENT AND AFFfDAVIT OF SURETIES. County of On this. ... .day of . 18 before me personailv appeared the above named B. B. and D. D., known to me to be the persons Chap. 22.] COURTS-JUSTICES. ' 353 described in, Hud who executed the above undertaking, and severally ac- knowledged thaUhey executed the same ,^orn.each for himself, safsfh^tTu^l^'a^elde^foY^h^st^tt^^Nonf Carolina: and a.ou.^^^^ (or freeholder) therein. g g d'. D Sworn to and subscribed the day above written ^'^o'-e ™^ ^ justice of the Peace. [No. 15.] ORDER VACATING ATTACHMENT ON SECURITY BEING GIVEN. A B against '" > Justice's Court. ... D ) C " ' County of \----y--l" The defendant having appeared '» t^'^, -^f/^^^^^^ 1^0 tife'fotr^ rnlenafinrin ^^ue S^of Tatf S bas beei duly ap- ^If^nd^^^tis^^ek^S^rl^ninallr^^^^ Sid and delivered \o the said defendant or his agent. Dated this day ot i»--- q.w. H ' Justice of the Peace. [No. 16.] FORM OF PUBLICATION TO BE MADE BY PLAINTIFF IN ATTACH- MENT. A B ) agaimt > Attachment. ''s;;;n;y-fiv'e' doliars due by -te, (or otherwise as the fact may be )W^^^^ .antof at-aohmentretm-naWe^^^^^^^^^^ ,^, ,P , 'Vdayof!.:, 18 -when and where the defendant is required to appear and answer the complaint Dated this. . . .day of 18. . . . ^^ Plaintiff. [No. lY.] AFFIDAVIT FOR ARREST ON DEBT FRAUDULENTLY CON- TRACTED. A B ) against V County of ^A* b' ' plaintiff' above named, being duly sworn, deposes and says: t That the defendant C. D. is indebted to the plaintiff in the sum of 354 COURTS— JUSTICES. [Chap. 22. dollars on an inland bill of exchange, drawn on the dny of 18 by defendant on the First National Bank of Charlotte North Carolina, payable at sight to the order of plaintiff; 2. That on the. .. .day of 18 , the defendant applied to the plaintiff lo purchase a bill of goods amounting to dollars, which the plaintiff offered to Pell to the defendant for cash; tliat the defendant, contriving to defraud the plaintiff, represented that he had money on de- posit at said National Bank for more than the amount of the proposed pur- chase, and offered to give plaintiff a si^'ht draft on said bank; that the plaintiff, relying upon the representations of the said defendant, anil solely induced thereby, sold and delivered a bill of goods amoimling to dollars to the defendant, who thereupon drew the sight order on said bank above refen-ed to; that on the day of 18 , the plaintiff presented said draft at said bank for acceptance, when the same was not accepted for want of any funds in said bank to the credit of the defendant; that nolice of non-ncceptance was given to the defendant, who has wholly refused to pay the draft or any part thereof ; that the representations made as aforesaid by the defendant were, and each and every of them was, as deponeiit is informed and believes, untrue; and that the defendant, as'de- poneut is informed and believes, did not have, nor expect to have, any funds on deposit at said bank, at the mnking of the representations above men- tioned, but said defendant was then and is now wholly insolvent A, B Sworn to and subscribed before me, this .... day of 18 G. W. H Justice of Vie Peace. [No. 18.1 UNDERTAKING ON ARREST. A B 1 againsl >• County of C D ) Whereas, the plaintiff above named is about to apply (or, has applied) for an order to arrest the defendant, C. D. : Now, therefore, we, J. J., of county, and P. P., of county, imdcrtake in the .sum of dollars (llie sum must be at least one hundred dollars), that if the said defendant recover judgment in this action, the plaintiff will pay all costs that may be awarded to the said de- fendant, and all damages which he may sustain by reason of his arrest In this action. J.. I P. P Signed in my presence, this day of , 18. .. . G. w. n Justice of tlie Peace. [No. 19.] ORDER OF ARREST. A B ) against \ Justice's Court. C D ) North Catiolika, County of To any constable or other lawful officer of said county : CHAP. 22.] COUKTS-JUSTICES. 3»B Dated this .... day of G W. H ' Justice of ilie Peace. [No. 20.] UNDERTAKING OF BAIL ON ARREST. A B ) against VCountyof ^ WhereS' the above-named defendant. C. D., has been arrested in this action: „„ -n r nf county (tailor), and D. D., of Now. ^'-^:^;;^^-d^^^:<^. II of.!'. . dollars (<^es;:n;-s,;o^a£L^an.a^>nen^ rnaWe'totI; t^o^^^'s ^oTthe^'^rt'during the pendency of this action. andJo such as .nay be issued to enforce judgment therem. D.T).'.'.'.'.". Signed in my presence, this day ot. .^ -^ ■ ; ; •^^•;;_ Justice of the Peace. [No. 21.] NOTICE OF EXCEPTION TO BAIL. A B.. against C D ) Tn O P M constable (or sheriff) of the county of. . . .......... ... • T^ikenoiice that the plaintiff does not accept the bad offered by the :, J^^^^^n thi<, art on (and if the undertaking is defective in form or othS, add a'fso)! and 'furler he excepts to tl.'e form and sufficiency of the undertaking^^ ^ ^ p,^,.„^,y^ (or M.' W. N , Attorney for Plaintiff). Dated this day of 18. • • [No. 22.] NOTICE OF JUSTIFICATION OF BAIL A B ) against \ County of C D ) .^ To A B.. plaintiff (or M. W. N., attorney for plamtifl): „ tv H Take iiotice, that the bail in this action will justify before G. W. H.. 356 COURTS— JUSTICES. [Chap. 22. Esq., a justice of the peace for said county, at the office of said iustice in said county, on the day of ,18 C. D _ . , ^. ^ , (or attorney for C. D.), i)f/«non A. B. offered M. Y. as a witness, who betnir sworn, lestifies (slate what witness says). Neither party having any other evidence, and after heai mg all the proofs and allegations submitted for and against the motion: It is adjudged, on motion of A. B., that A. B. do recover of R P the the sum of dollars, penally forfeited by re^ison of the premises, and the further sum of dollars, costs of this motion. Chap. 22.] COURTS-JUSTICES. 859 [No. 31.] FORM OF A VENIRE, The justice will make a list of the persons drawn by him as jurors, and indorse thereon substantially as fol- lows: To O P. M., constable of county: You iirc horeljy directed to summon the persons named -withm to appear as iurors before me at my oflice. in your county, on the day of . . for trial of a civil action now pending between A. B., plamtift, and C.'t)., d' fendant, then and there to be tried. And have you then and there the names of the jurors you shall summon, with this precept. Dated this day of 18.. „ w tt G. w. n , Justice of the Peace. [No. 32.] FORM OF juror's OATH. Tou swear well and truly to try the matter in difference between A. B., plaintiff, and C. D., defendant, and a verdict to give thereon according to the evidence in the cause. So help you, God. [No. 33.] FORM OP OATH TO CONSTABLE Df CHARGE OF THE JURY. Yon swear that you will, to the utmost of your ability, keep the persons sworn as iurors on i his trial toffelher, in some private and convenient place, without any mi-al or drink, except such as may be ordered I. y the court; that you will not suffer any communication, orally or otherwise, to be made to them; and that you will not communicate with them yourself, orally or otherwise, unless by order of the court. So help you, God. [No. 34.] SUMMONS AGAINST DEFAULTING JUROR TO SHOW CAUSE. State of North Carolina, to any constable or other lawful officer of county, greeting: We command you to summon R. S. to appear before G. W. H., Esq^ a justice of the peace for your county, at liis ofBce in said county, on (Ja,y of 18. ., to show cause why he, the said R. S., should not be fined according to law, for his non attendance as a juror before our said justice, at his office in said county, on the day of 18..,iua certain cause then and tlicre pending, in which A. B. was plaintiff, and C. D. was defendant ; and have you then and there this precept, with the date and manner of your service thereof. Witncsa, our said justice, this . . .day of 18. . G. W. H Justice of tlu Peace. 858 COUETS— JUSTICES. [Chap. 22. [No. 30.] PROCEEDINGS AGAINST DEFAULTING WITNESS. When a witness, under subpoena, fails to attend, the justice will note the fact in his docket by some such en- try as the following: jy 'l^J if-' * ■"fitness summoned on behalf of the plaintiff, called and failed. If the party, who suffers by default of the witness, wishes to move for the penalty against him, he will S£rve substantially the foUowing notice on the witness: . A B ) against V County of To R. P. : Take notice, that on the .day of 18. ., the plaintiff in the above action will move G. W. H., Esq., the justice bifoic whom the trial of said action was had, on the . .day of , 18. . for iudo-ment against you for the sum of dollars, forfeited by reason of your fail- ure to appear and give evidence on said trial as you were summoned to Dated this. . . .day of , 18. . A.B Plaintiff. The justice will enter the proceedings on the foregoin<'' notice on his docket as foUows: *' affamsi i Motion for penalty against R. P., defaulting witness. day of .... 18 A. B., above-named, appears, and, according to a notice hied and duly served on R. P.. moved for the peualty of dollars forfdted by tlie said R. P. by reason of his failure to attend and give evulence on the trial of a cause, wherein A. B. was plaintiff and C D was defendant, tried before me at my office on the day of ■^^■j'Tf^T;'^''P'^'"'''''" '^°"'y^'"'y """^'^ 0° my docket; when and wiiere'the said R P , a witness summoned on the part of the plaintiff in that action was c died and did fail. R. P. appears and assigns for excuse -'high water," and offers his own affi- davit, which is filed. He also offers as a witness ill his behalf S 8 who being duly sworn, testifies that (state what S. 8. says about the condilioa ot tUe water at the time). R. P., liavine no other evidence, closed the case on his part. Whereupon A. B. offered M. Y. as a witness, who, beintr sworn, testifies (slate what witness says). Neither party having any other e^adence, and after hearmg all the proofs and allegations submitted for and against the motion: It is adjudged, on motion of A. B., that A. B. do recover of R P the the sum of dollars, penalty forfeited by renson of the premises, and the further sum of dollars, costs of this motion. Chap. 22.] COURTS— JUSTICES. 359 [No. 31.] FORM OF A VENIRE, The justice will make a list of the persons drawn by him as jurors, and indorse thereon substantially as fol- lows: To O. P. M., constable of county: ... , You arc hereliy directed to summon the persons named withm to appear as iurors before me at my offlce, in your county, on the ..... -day of . . for trial of a civil action now pending between A. B., plamtitt, and C "D., defendant, then and there to be tried. And liave you then and there the names of the jurors you shall summon, -with this precept. Dated this day of 18.. ^ .^ _ G. W . H Justice of the Peace. [No. 32.] FORM OF juror's OATH. Tou swear well and truly to try the matter in difference between A. B., plaintiff, and C. D., defendant, and a verdict to give thereon according to the evidence in the cauise. So help you, God. [No. 33.] FORM OF OATH TO CONSTABLE IN CHARGE OF THE JURY. You swear that you will, to the utmost of your ability, keep the persons sworn as jurors on ihis trial together, in some private and convenient place, without any mpat or drink, except such as may be ordered l>y the court; that you will not suffer any coriimunication, orally or otherwise, to be made 10 them; and that you will not communicate with them yourself, orally or otherwise, unless by order of the court. So help you, God. '[No. 34.] SUMMONS AGAINST DEFAULTING JUROR TO SHOW CAUSE. State of North Carolina, to any constable or other lawful officer of county, greeting: We command you to summon R. S. to appear before G. W. H., Esq^ a justice of the peace for your county, at bis ofBce in said county, on day of 18. ., to show cause why lie, tlie said R. S., should not be fined according'to law, for his non attendance as a juror before our said justice, at his office in said counly, on the day of 18.., in a certain' cause then and llieie pending, in wliich A. B. was plaintiff, and C. D. was defendant; and have you then and there this precept, with the date and manner of your service thereof. Witness, our said justice, this . . .day of , 18. . G. W. H Justice of the Peace. 360 COURTS— JUSTICES. [Chap. 22. [No. 35.] DEMtTRREB TO COMPLAINT. A B ) ar/ainst }■ Justice's court. C D ) County of Tlie defendant demurs to the complaint in this action, for that tlie said complaint does not state facts sufficient to constitute a cause of action, (or, for that the said complaint is not sufficiently explicit to enable this defendant to understand it.) (Signature of defendant or defendant's attorney.) [No. 36.1 DEMURRER TO ANSWER. (Title as above.) The plaintiff demurs to the answer of tlie defendant, lor thai, the facts stated in the answer are col legally sufficient to constitute a defence to this action, (or for that the said answer is not sufficiently explicit to make this plaintiff understand it.) (Signature of plaintiff or plaintiff's attorney.) • [No. 37.] JUDGMENT UPON DEMURRER. Note. — If the justice thinks the objection raised by the demurrer to the pleadings is well founded, he will make this entry ou his docket : "Demurrer to the complaint (orto the answer) filed, lieard and sustained; and. whereupon, it is ordered that the said pleading be amended without cost," (or upon payment of costs, as tlie case may be.) This order to amend the defective pleading is a matter of course, and is the only judgment which the justice can render upon demurrer. He cannot give a final judgment in the cause at this stage, for the party may clioose to amend in his pleadings and try the case on the facts. If, however, the party refuse to amend the defective plead- ing, the justice will disregard the same, and proceed to render final judgment, as foUows : " The plaintifif (or defendant) having refused to amend his complaint (or his answer) demurred to, it is adjudged that the defendant go without day and recover of the plaintiff the sum of dollars, costs of this action," (or that the plaintiff recover of the defendant the sum of dollars, damages, and the further sum of dollars, costs of this action.) Chap. 22.] COUETS-JUSTICES. 361 If the justice deem the objection, raised by the dem^rref , not well founded, he will enter in his docket as foUows . - Demurrer to the complaint (or to the answer) filed, beard and overruled;" and he will then proceed to the evidence in the cause. [No. 38.] Note -The following is offered as a general precedent of the manner in vfhich the justice will make the entries in his docHet: against [. Justice's court. C D ) 18.. Summons issued; returnable on the .... instant at ray °®''^' 18 Summons returned, served on defendant by O. P. M., con- stable 'on' the : . instunt. both parties appear, the plaintiff m person, the ''i-iSn'.^.^cJilip^inf oVatSsory note execnt^^^ toliim dited 18... payable one day after date for f. ... ana l^sof^r goods," soid and delivered to' the defendant, and claims damages %hcd'efendant answers and denies each and every allegation in the com- TiHint and claims a set off of $.... for wood sold and debvered to the nWntiff anda^oof $ ... for work and labor performed for the plaintiff. ^ On S'inin.. issue o*f fact as above, the action is, by consent of parties. ^tri^'l^S^-i;-^dt?thepl"^t!^(or defendant's) demand, return- able at the time and place l-t men Jnejl. ^^^^ ^^^^^^^ ^^ ^^^ , ^^ cause' Thefoilowiiig jurors are returned as summoned upon the ^emre by cause. ^^^''^"^"^^i/JdQ.ert the names of all jurors summoned.) The ?ollowinViu"o°s who are returned as summoned, do not appear. (In.sert tbei°T°me" The followini; jurors appear according to the summons. (Insert Uieir names.) The following jurors are sworn to try the action. ^"'^"p'SdTM!' witnesses for the plaintiff, and W F., a witness for the defendant are sworn and testify; J. S.. a witness on the part ot the defend- ant I ofle.^d. but objected to by the plaintiff on the ground, (state the ^Xv1^g7iea7itlie evidence, (and the.arg.ments of counsel if any^)t.je cause is submitted to the jury, who relire, under charge of O. P. M.. a con- stable duv sworn for that purpose, and afterwards return into ope" ^o "-t and publicly deliver their verdict, by which they find in favor of the pHinl^ff f<^ i ■ damages; whereupon. I adjudge that the plaintiff do re- Pl cover of the defendant — Damages ^ . . . ^.°'!!;;'.," 18. .■ Execution Vssued for above ' judgment 'to O. V. M.. con- ^'"^'.'^; 18. . Notice of appeal served on me by defendant; my fee paid and return to the appeal made by mo. NB— Ifthe action is tried by the justice without a jury, all that relates to the venire and the verdict in the 16 362 COURTS— JUSTICES. [Chap. 22. above form must be left out, and the judgment will 1)6 entered as follows: "After hearing the proofs and nllegatious o£ the respective parties. I do adjudge that the pUiiutifl recover," &c., (as above.) [No. 39.] FORM OF NOTICE OF APPEAL TO THE SUPERIOR COURT, WHERE A NEW TRIAL OP THE WHOLE MATTER LS TO BE HAD. A B ) against [ .Justice's court. C D ) County 01 To G. W. H. , Esq. , a justice of the peace for said county. Take notice, that the defendant in the above action appeals to the Superior Court from the judgment rendered therein by you on the day of 18.., in favor of the phiintifE for the sum of .sixty-five dollars damages, and the further sum of three dollars and seventy five cents, costs, and that this appeal is founded upon the ground that the said judgment is contrary to law and evidence. Dated this day of 18. . W. W Attorney for Appel{a,ni. [No. 40.] RETURN TO NOTICE OF APPEAL LIKE THE FOREGOING. A B ) against \ County of C D ) To the Superior Court of County: An appeal having been taken' in this action by the defendant, I, G. W. H., the justice before whom the same was tried, in pursuance of ihc no- lice of appeal hereto annexed, do hereby certify and return that the follow- ing proceedings were had by and before me in said action: On the first of February, "one thousand eight hundred and sixty nine, at the request of the plaintiff, I issued a summons in his favor and against the defendant, which is herewith sent. Said summons was. on the return (lay thereof, returned before meat my office; and at the same time and place, the parties personally appeared. j , , . . The plaintiff complained for goods sold and delivered to defendant to tlie amount of $7."). The defendant denied the right of the plaintiff to re- cover that amount for the goods, on the ground that he had paid, at or shortly after the purchase of said goods dollars thereon ; and he also claimed to have a set-olT against the plaintiff to the amount of f85 for board and lodgin-i fiiriiislied to'^phiintiff. and work and labor done for him; and he claimed to lie ciilitlcd to jtidgment against the plaintiff for $ Both parties introduced evidence upon the claims ,so made by Ihem, and after hearing their proofs and allegations, I rendered judgment in favor of the plaintiff and against the defendant, on the tenth February, eighteen hundred and sixty-nine, for %Qr, damages, and for the further sum of |3.75, costs of the action. Chap. 22.] COURTS-JUSTICES. 363 -^^-TwEl^lllK totl^^t:t!l.SSuings, and ot.er pa- pers in the cause. Dated this 15th day of February, 186a Ci. VV . tl N B If tlie cause was tried by a jury, state the fact and set forth the vf-rdict with the iadgment thereon. It is not necessary to set out in the Return k copy o? any process, pleading, aflSdavit or other paper. It .8 suffi- ^ent to lefer to such a paper as filed and as herewith sent. [No. 41.] WHKKE THE SUM DEMANDED EXCEEDS TWO HUNDRED DOLLARS. Ttacnearing that the sum demanded by the plaintiff in this action ex- ceeds ^twoTfndrcd dollars, it is ordered that the action be dismissed and Sment « rendered against A. B.. plainlilf. for the sum of ... . doUars, costs. [No. 42.] WHERE THE TITLE TO REAL ESTATE IS IN QUESTION. N B The defendant, if he wishes to make answer to title, must file a wril'ten' answer to the complaint, selling forth the facts. ANSWER OF TITLE. A B ■ ) ■ ■ " against [ Justice's Court. C D ) The defendant answers to the complaint : 1 Th'it no alleeatiou ihereof is true. . 2 Tin the afntiff ought not to have or maintain his action against the defendant bee use the prmises menlioned and described in the complaint, ft he time when the rent and render, for wbch said action is brought is a le^edTo be due was and is now the land and freehold o one J. D. and noftlmt of the plaintiff ; nor was the plaintiff then, nor is he now entitled °o the possession thereof ; and the defendant further answers that ^e title to smW premises was, at the lime aforesaid, and .snow, in said J, D., and will come in question on the trial of this action. Datedthis dayof la. . . ■ ^^ Defendant. It aDoearino- from the answer and proof of the defendant, that the title to xea Sri^hi cZtroversy in this action., ^V^ -d«edin,at the action be dismissed, and judgment is rendered against the plaintiff for dollars costs. 364 COURTS— JUSTICES. [Chap. 22. [No. 43.] OFFER OF JUDGMENT. A B ) against J- Justice's Court. C D. To A. B Take notice, tliat the defendant hereby offers to allow judgment to be taken against him by the plaintiff in the above action for the sum of fifty dollars, with costs. Dated this day of ,18 CD Defendant. [No. 44.] ACCEPTANCE OF OFFER OF JUDGMENT; (Title as above.) ToC. D Take notice, that the plaintiff hereby accepts the offer to allow the plain- tiff to take judgment in the above action, foi- the sum of fifty dollars, with costs, and the justice will enter upjudgmeut accordingly. Dated this day of '. ,18 A.B , Plaintiff. [No. 45.] FORM OF JUDGMENT OR OFFER. (Title as above.) N. B. — The justice will state all the proceedings in the action from the issuing of the summons down to the appearance of the parties and the com- plaint of the plaintiff, and then proceed as follows: Whereupon the said defendant, before answering said complaint, made and served an offer, in writing, to allow the plaintiff to take judgment against him for the sum of fifty dollars with costs;* and the said plaintiff tliereupou accepted such offer, and gave notice thereof to the defendant ia writing; said offer and acceptance thereof being filed: JSow, therefore, judgment is accordingly rendered in favor of the plaintiff and against the defendant, for the sum of fifty dollars damages, and the further sum of one dollar costs. If notice of acceptance is not given, the entry will be as follows: {Fallow the fore.yoinq form down to the aHtmnk. (*) and then add): ■' And (he said plaintiff hiving refused to accept such offer, the defend- ant answered the complaint by denying," &c., (state t/ie defence of the de- fendant, down to the judgment, which, incase the plaintiff fails to recover more than the sum mentioned in the offer, will be entered thus): After hearing the proofs and allegations of the respective parties, I ad- je read each morning. 1 926. If judge of a superior court not | present, court to be adjourned, j when. I 927. Constable attending juries to be j sworn, for what purpose. | 928. Process not to be executed on Sunday. j 929. When there is no officer, or he will not execute p7'0cess, on affidavit, the clerk shall direct process to the sheriff of adjoin- ing county. 930- When process to issue to sheriff of adjoining county. 931. Sheriff executing process out of his county to have extra pay. 933. If defendant in penal suit plead former judgment, plaintiff may reply fraud; release of the action void; defendant pleading falsely indictable. 933. Payment or satisfaction may be pleaded in suits on bond and judgment; also payment or Section. satisfaction after the day of paying; in suits on bonds con- ditioned to be discharged by a less sum. 934. In suits on penal bonds, the sum due. interest and costs being brought into court, penalty shall be discharged. I Q35. .Judgments to stand till reversed. j 936. Non-suit not allowed after ver- dict. 937. Party in execution not to be I discharged on liabeas corpus. Death between verdict and judgment, not error, if, &c. Surveys ordered in case of dis- puted boundary; how and by whom made ; charges for sur- veys to be taxed as costs. Return on notice; evidence. 941. Speedy collection of proceeds of judicial sales, by motion. 942. Purchasers under judicial sales protected; deemed legal own- ers. 943. Quakers may wear hats in court. 944. Certain cases pending in courts of equity and county courts to be transferred. 938. 939. 940. Sec. OlO. Superior courts; state divided into nine judicial districts; courts, bow opened and lield. Const. Art. IV., s. 10. 1876-'7, c. 255. A superior court shall be held by a judge thereof at the court house iu each county. The state shall be divided into nine iudicial districts, and the superior courts m the several counties shall be opened and held at the times hereinafter exoressed, and each court shall continue in session one week or more, as the business may require and this chapter wiU allow, unless the business thereof shall be sooner disposed of, namely: FIRST JUDICIAL DISTRICT. 1876-7, C. 255, S. 1. 1876-7, c. 288, ss. 1, 2. 1879, c. 20, s. 1. 1879, C 275, ss. 1, 2. The first judicial district shall be composed of the fol- 3(i8 COURTS— SUPERIOR. [Chap. 23. lowing counties, and the superior courts thereof shall be held at the following times, to wit: Currituck — First Monday of March and September. Camden — Second Monday of March and September. Pasquotank— ThivA Monday of March and Se|)tember. Perquimans— Fomih Monday of March and September. Choivan—YiYsi Monday after the fom-th Monday of March and September. Ga^es— Second Monday after the fourth Monday of March and September. Hertford— i::\\iv A Monday after the fourtli Monday of March and September. Washington— Yonvih. Monday after the fourth Monday of March and September. Tyrrell— Yiiih. Monday after the fourth Monday of March and September. Z)are— Sixth Monday after the fourth Monday of March and September. iiZ^de— Seventh Monday after the fourth Monday of March and September. Pamlico— 'Eighth Monday after the fourth Monday of March and September. Beaufort— ^m.ih Monday after the fourth Monday of March and September, and continue two weeks. ilfar^TO— Eleventh Monday after the fourth Monday of March and September, and continue two weeks. The second judicial district shall be composed of the following counties, and the superior courts thereof shall be held at the following times, to wit: Second Judicial District. 1876-7, c. 255, s. 1. 1879, c. 292. 1879, c. 307. 1883, c. 172. 1S83, c. 361, ss. 1, 2. Tfafce— First Monday in January, second Monday in February, fourth Monday in June, second Monday in August, and shall continue three weeks. Warren— Fh-st Monday in March and September, and continue two weeks. Nort)iampton—¥om'th Monday after the first Monday of Mai-ch and September. Edgecombe— ^ixih Monday after the first Monday of March and September. Bertie— Eighth Monday after the first Monday of March and September.' Chap. 23.] COURTS— SUPEEIOR. 369 Halifax — Ninth Monday after the first Monday of March and September, and continue three weeks. Craven — Twelfth Monday after the first Monday of March and September. Whenever during any term of Craven superior court, two-thirds of all the members of the bar regularly at- tending the terms of such court shall certify to the pre- siding judge that it is necessary that either the spring or fall term of such court should be continued for one week beyond the time fixed by law; it shall be lawful for such judge, and he is hereby required to extend the term of such court for one week ; and such judge is authorized and empowered to retain two or more jurors, and to order the sheriff to summon a sufficient number of tales- men to compose a jury for such week. The third judicial district shall be composed of the fol- lowing counties, and the superior courts thereof shall be held at the following times, to wit: Thied Judicial Distkict. 1876-7, c. 255, s. 1. 1881, c. 123. 1881, c. 229. 1883, c. 147 . 1883, c. 213. Wayne — Fifth Monday before the first Monday of March, and continue three weeks. Nash — Monday before the first Monday in March, and continue one week, and second Monday before the first Monday in September and continue two weeks. Wilson — First Monday in March and continue two weeks, and first Monday in September and continue one week. Pitt — Third Monday of March and September, and con- tinue two weeks. Oreene — Fourth Monday after the first Monday of March and September. Jb/(es— Fifth Monday after the first Monday of March and September. Onsloiv — Sixth Monday after the first Monday of March and September. Lenoir — Seventh Monday after the first Monday of March and September, and second Monday of September. Carteret — Eighth Monday after the first Monday of March and September. Wayne — Ninth Monday after the first Monday of March and September, and continue two weeks. Duplin— YAeventh. Monday after the first Monday of 370 COURTS— SUPERIOR. [Chap. 23. March and September, and second Monday before the first Monday of March. Sampso7i—T\ve\U]i Monday after the first Monday of March and September. New Hanofer— Thirteenth Monday after the first Mon- day of March and September, and continue two weeks. Pender— Fifteenth Monday after the first Monday of March and September. The fourth judicial district shall be composed of the following counties, and the superior courts thereof shall be held at the following times, to wit: Fourth Judicial District. 1883, c. 408. Cuwi&e?-tond— Monday before the last Monday in Jan- uary. Robeson — Last Monday in January. j¥oore— First Monday in February and August, and continue two weeks. Harnett— Ihivd Monday in February and August. B/ade/i- First Monday after the third Monday of Feb- ruary and August, and continue two weeks. CoZw?/j6ms— Third Monday after the third Monday of February and August, and continue two weeks. Brunsivick—Yiiih Monday after the third Monday of February and August. Jo/mstoH— Sixth Monday after the third Monday of February and August, and continue two weeks. iJooeson— Eighth Monday after the third Monday of February and August, and continue two weeks. J.«son— Tenth Monday after the third Monday in Feb- ruary and August, and continue two weeks. Richmond — Twelfth Monday after the third Monday in February and August, and continue two weeks. Cumberland — Fourteenth Monday after the third Mon- day in February and August, and continue two weeks. The January terms of Cumberland and Robeson, as above provided for, shall l>e held by the resident judge of the district, unless otherwise directed by the governor, and the judge holding said January courts shall receive as compensation therefor one hundred dollars for each court, to be paid by the counties of Cumberland and Robeson. The fifth judicial disti-ict shall be composed of the fol- Chap. 23.] COURTS-SUPERIOR. 371 lowing counties, and the superior courts thereof shall be held at the following times, to wit: n» 4TS'i, ?:ts^. -■;«-; «''-■• ' ^'^^' c. 319. , , '=°XTa««-sSo"d Monday be£o« the first Monday of *'S«J'«"'3:Sy Woro the fl«t Monday o£ March "' G,?^or5*First Monday of March and September, and "°S«.rsS*d Monday after the first Monday of "^^r^eiffirMonday after the first Monday of »CSJ!.lt|ff \da?= t^ .|2|.nday Of «¥* :,:iSr&dt Xrthe'"S.Ttonday of "?S»^?-Elev'Sth '-Monday after the first Monday of "Cfc»'w.^TSth Monday after the fi«t Monday "' r«tMond?y'l31^"the Eockmgham FaU and Spring terms, and continue two weeks. held at the following times, to wit: Sixth Judicial District. 1876-'7, c 255, s. 1, ^f » 2- 28 1879, c. 110. 1881, c. 298, ss. 1, 2, 3. 1883, c. 114. MecMeub«rr/-Last Monday of February and August, ^''hZl'^^^'-^^rTMolt.j of March and September. 372 COURTS— SUPERIOR. [Chap. 23. Lincoln — Fourth Monday after the fourth Monday of March and September. Gaston— ¥\tih Monday after the fourth Monday of March and September, and continue two weeks. C/ci'-e/awd— Seventh Monday after the fourth Monday of March and September, and continue two weeks. Ruflierford—'^mih. Monday after the fourth Monday of March and September, and continue two weeks Po/fc— Eleventh Monday after the fourth Monday of March and September, and continue two weeks. The seventh judicial district shall be composed of the following counties, and the superior courts thereof shall be held at the following times, to- wit: Seventh Judicial District. 18Y6-'7, c. 255, s. 1. 1879, c. 90. 1883, c. 257. 1883, c. 298. Davie — First Monday of March and September. Fa dfcin— Second Monday of March and September. Davidson— Third Monday of March and September, and continue two weeks. Wilkes— YiYst Monday after the fourth Monday of March and September, and continue two weeks. Alleghany— 'lYnvA Monday after the fourth Monday of March and September. iSiirr?/— Fourth Monday after the fourth Monday of March and September, and continue two weeks at Spring term, and one week at Fall term. ^Stofces— Sixth Monday after the fourth Monday of March and fifth Monday after fourth Monday of Septem- ber, and continue one"week at Spiing term, and tAvo weeks at Fall term. Fors?/;/i— Seventh Monday after the fourth Monday of March and September, and continue two weeks. Rovmn—Wmi\i Monday after the fourlh Monday of March and September, and continue two weeks. The eighth judicial district shall be composed of the following counties, and the superior courts thereof shall be held at the following times, to- wit: Eighth Judicial District. 1876-'7, c. 255, s. 1. 1879, c. 79. 1879, c. 277. 1880, c. 4. 1881, c. 06. 1881, c. 143. Catawba — Last Monday of August and February, and continue two weeks. Chap. 23.] COURTS-SUPEKIOK. 8'3 B.rte-Secona Monday ot March and September, and "=°SuS-Fonrth Monday of March and Septcmher, ='"S." -leconcmt'day after the *«;* Monday of -ll^if-^fflh'^SiVS- *e'lo°oSr%nday Of ■^"^Jtoi-SxtSonday after the fourth Monday of "sHMni" X?The SrTlonaay of 4Ss|i«rM;n^aVS;5;r°ThrfS''Monday of «5t.Si?!?St"Mo„day after the fourth «!^?Se?r-^lec?nT&ra rrVhr.rr Monday of August and February, and continue two weeks. held at the following times, to wit: Ninth Judicial Distbict. 1883, c. 164. Mad«o»-First Monday ot March and August, and "S^rSr-TlS Monday of March and August, and '=°?tSr»r-Fourth Monday after the fh-st Monday °'S»»*^Flir Monday after the first Monday of 4i'^^S'M?n^aratS^VefiSt?dayof March " 'toS^t^enth Monday after the first Monday of "SjZ-E^TM'onday after the first Monday of March "c7^S-NiBth Monday. after the first Monday of «r»£»t^ETent1;tStrStrthTi5t Monday of ''¥i?-T'lSh- Monday after the first Monday of March a"'' '^"£"?L„tb Monday after the first Monday of^MS td tMrfMoSdry of iJovember. and continue 374 COUETS-SUPERIOR. [Chap. 23. four weeks, unless the business shall sooner be disposed The boards of commissioners of Buncombe, Madison Hendeison, Haywood, and Cherokee counties are author- ized to draw a separate jury for each week of the supe- rior court of said counties. Sec. 911. Rotation of judges. R. €., c. 31, s. 30. 1876- '7, c. 27. 1879, c. 11. The judges of the superior court shall hold the courts ot the several judicial districts successively, as provided m chapter eleven of the public acts of 'the year one thousand eight hundred and seventy-nine. Sec. 912. Notification of ridings. 1879, c. 11, s. 11. The judges shall cause a notification of the ridings tO' be published in some newspaper by the first of January and first of July preceding each circuit. Sec. 913. Special terms; exchange of courts. R. C. c 31 s. 20. 1879, c. U.S. 12. The governor shall have power to appoint any judge to hold special terms of the superior court in any county and by consent of the governor, the judges may exchange the courts of a particular county or counties; but no judge shall be assigned to hold the courts of any district oftener than once in four years: and whenever a judge shall die or resign, his successor shall hold the courts of the district allotted to his predecessor. State V. Adair, 66—298; State v. Watson, 75—136; State v. Graham 75—256; State v. Muiiro, 80—373; State v. McGimsey, 80-377- State v' Bowman, 80—432. Sec. 914. Special terms. R. C, c. 31, s. 23. 18C8-'9 c 273, s. 1. 1876-'7, c. 44. ' Whenever it shall appear to the governor by the certif- icate of any judge, a majority of the board of county commissioners, or otherwise, that there is such an accumulation of criminal or civil actions in the superior court of any county, as to require the holding of a special term for its dispatch, he shall issue an order to the judge of the judicial district, in which such county is, or to any other judge of the superior court, requiring him to hold a special term of the superior court for such county, to begin on a certain Monday, not to inteifere with any of the regular terms of the courts of his district. The judge shall attend and hold such court. State T. KetcUey, 70—621; Royster v Cliandlcr. 6 Ired. Eq., 291. Chap. 23.] COURTS-SUPERIOR. 375 Sec. 915. Notice to cliaimian. 1868-'», <"• ^^^f ' *' ^" ,, Whenever the governor shall call a special term of the superior courJ for^any county, he shall notify the chair- man" f the board of commissioners of the county of such S and such chairman shall take immediate steps to cause twenty-four, or if a grand 3ury be needed, thirty- eSt quaimed persons to be drawn and summoned as Srs for said term; and also to advertise said term at thL com t house and at one public place in every town- sMn of his county, or by publication of at least two weeks in some'ne/s'paper published in his county m lieu of such township advertisement. Sec. 916. Powers, &c. 1868-'9, c. 273, s. 3. The special terms of the superior court held m pursu- ance of S chapter shall have all the jurisdiction and powers that regular terms of the superior court have. Sec. 917. Terms to last, how long. 1868-'9, c. 273, s. 4. The said terms Shall last until all the business of the court shall be disposed of. Sec. 918. Certificate of attendance. 1868-'9, c. 273, s. 5. The clerk shall give the judge a certificate of attend- ance for the number of days occupied by the court, and the iudge shall thereupon be entitled to receive from the commSioners of the county in which the court is held his expenses, at the rate of one hundred dollars per week as his compensation for holding said term. Buxton V. Com'rs, 82—91. Sec 919. All persons bound to attend as at regular terms; ''"no process^except subp«nas returnable^thexeto^^ K. C, c 31 ss 23, 24. 1844, c. 10, s. 2. 1848, c. ^ J. AU persons and witnesses summoned at the regular or sneciafterrn and officers or others who may be bound to SittTrexl regular term of the c--t;|haU^^^^^^ the special lerm, under the same ™1«^' /^«, *f *Xt So wmltiesasif the term were a regular teim. But no Pes hall bemaderetuvnabletheretoexceptsubpoenas, OT other process for the attendance of witnesses. Askew V. Stevenson, Phil, 288. Sec. 920. Subpoenas, &c. 1868-'9, c. 273, s. 8. Subpoenas may issue returnable on any day of any special term. 376 COURTS— SUPERIOR. [Chap. 23. Sec. 921. Grand Juries. 1868-'9, c. 273, s. 9. There shall be no grand jury at any special term, un- less the same shall be ordered by the governor. Sec. 922. Original jurisdiction of superior court. Const Art. IV., ss. 12, 27. 18C6-'7, c. 251. 1879, c. 92. s. 11. 1881, c. 210. The superior court shall have original jurisdiction of all civil actions whereof exclusive original jurisdiction is not given to some other court; and of all criminal actions in which the punishment may exceed a fine of fifty dollars or imprisonment for thirty days; and of all such affrays as shall be committed within one mile of the place where, and during the time, such court is being held; and of all offences whereof exclusive original jurisdiction is given to justices of the peace, if some justice of the peace shall not within six months after the commission of the offence proceed to take official cognizance thereof. Rives V. Guthrie, 1 Jon., 84; Donaldson v. Waldrop, 63—507; Wilming- ton V. Davis, 63—583; State v. Johnson. 64—581; Hedgecockv. Davis, gC- 650; Credle v. Gibbs, 65-193; Edenton v. Wool, 65-379; State v. Dealon, 65—496; Slate v. Pendleton, 65—617; Froneberger v. Lee, 66—833; Wins- low V. Weith, 66—432; Dulio v. Howard, 66—433; Froelich v. S. Ex. Co., 67— 1; Davis V. Baker, 67—388; State v. Porter, 69—140; Caldwell v. Beatty,' 69—365; State v. Yarborough, 70—250; State v. Heidelburg, 70—496; R R. Co. V. Johnson, 70—509; Bullenger v. Marshall, 70— siO; Brandok v! Cora'rs, 71—62; State v. Rouseau, 71—194; State v. Vermington, 71—264'; Templeton v. Summers, 71 — 269; Giifflth v. Com'rs, 71-840; Walti V. Bell, 71—405; Barnes v. Brown, 71—507; State v. Perry, 71— 53.>; Sutton V. McMillan, 73—103; State v. Upchurch, 72—146;' Stat.^ v Pressly, 73-264; State v. Quick, 73-241; Willoughby v. Threadgilli 73—438; Latham v. Rollins, 72—454; State v. Bairev, 73—70; State v Buck, 73—266; State v. Buck, 73—630; Bellamy v. Pippin, 74^46; For- sythe v. Bullock, 74—135; State v. Grifflce, 74—316; Hcndric'k v. MMvfield, 74—636; Pullen v. Green, 75—215; Priveltv. Calloway, 75—233; Oliverv' Wiley, 75—320; Nance v. R. R. Co., 76-9; State v. Threadgill, 76-I7' Washington v. Hammond, 76—33; Slate v. Styles, 76—156; Brown v.' Hoover, 77—40; Claywcll v. Sudderlh, 77—287; Com'rs v. R. R. Co 77— 397; McMillan v. Hamiltou, 77—300; Stale v. Hamplon, 77-.:,26: Perry v Shepherd, 78—83; Nttherlon v. Candler. 78—88; Evans v. Williamson. 79 -80; Brallon v, David.son, 79—423; Walton v. Walton, 80—26; Bank v Wilson, 80—200; State v. Educy, 80—300; Slate v. Monroe, 80-373- Stale v. Anderson, 80-429; Murphy v. McNeill, 82—221; SIcDonald v. Cannon, 83—345; State v. Moore, 83—659; State v. Taylor, 83-601; Slate v. Berry' 83—603; State v. Mitchell, 83—074; Brickcll v. Bell, 84—83; Greer v. Caclej 84—385; State v. Reaves, 85—553; Kirkman v. Phipps, 86—428- Hanuali V. R R. Co., 87—331. Chap. 23.] COURTS-SUPERIOK. 377 Sec. 923. Appellate jurisdiction. Const., Art. IV., s. 16. The superior court shall have appellate jurisdiction ot all issues of law or of fact, determined by a clerk of the superior court or a justice of the peace, and of all appeals from inferior courts for error assigned, in matters ot law, as provided in this code. Pearce V. Lovenier, 71-248; Smith v. R. R. Co., 73-63; McBryde v. Patterson 73-478; McDaniel v. Watkios, 76-399; Suttle v. Green, .8- 76- Faison v. Johnson, 78-78; Evans v. Williamson, 79-86; Brown v. Brittain, 84-553; Boyctt v. Vaugban, 85-363; Allen v. Jackson, 86-321; State v.Mott, 86—631; Boingv. R. R. Co., 87-360. Sec. 924. Judge to take oath; oaths subscribed and re- turned to secretary of state. R. C^ c. 31, ss. 18, 19. 1777, c. 115, ss. 5, 6. 1806, c. 694, s. 13. 1848, C. 45. , 1 n ■ Every judge before he shall act as such, shall, in open court, or before the governor, or before one of the judges of the supreme or superior courts, or before some justice of the peace, take the oath appointed for public othcers, and also an oath of office. The officer or court before whom said judge shall qualify shall cause the judge to subscribe the oaths by him taken, and having certified the same, shall return said oaths to the secretary of state who shaU carefully preserve them; audit any judge shall Tct in his office before he shall have taken the oaths directed, he shall forfeit and pay two thousand dollars one half to the use of the state and the other half to the person who shall sue for the same. Sec. 925. Minutes of preceding day to be read each morning. 1861, e. 3. Every morning during the term the judge presiding shall oi^er the reading of the minutes of said court fo^ the day preceding, and the minutes ot the last day shall be read immediately preceding the final adjournment of said term. Sec. 926. If judge of a superior court not present, court to be adjourned, when. K. C, c. 31, s. 21. C. C. P., s. 396. 1879, c. 11. If the judge of a superior court shall not be present to hold any term of a court at the time fixed therefor, it shall be the duty of the sheriff to adjourn the court from day to day until the fourth day of the term inclusive, un- less he shall be sooner informed that the judge from any cause cannot hold the term; if by sunset on the fourth 378 COURTS— SUPERIOR. [Chap. 23. day the jud^e shall not appear to hold the teini, or if the sherift shall be sooner advised that the judge cannot hold the term, it shall then be the duty of the .sheriff to ad- journ the court until the next term. Williams v. Rockwell, 64 — 325; Norwood v. Thorp, 84—682; Sta'e v. McGimsey, 80—377. Sec. 927. Constable attending juries to be sworn, for what purpose. R. C, c. «!, s. 36. 1801, c. 5«2, s. 2. When any officer (except such as are appointed to at- tend the grand jury) shall be appointed or summoned to atiend any superior court, the clerk, at the time of the first going out of a jury on the trial of any civil or crimi- nal action, shall adniinister an oath to such officer, faith- fully to attend the several juries that may be put under his care during that term, that shall be charged in the trial of any civil or criminal action ; and after such officer shall be once so sworn, he shall be considered to all in- tents and purposes as acting upon the same oath while attending every jury, that he may be called to attend during that term. Sec. 928. Process not to be executed on Sunday. R. C, c. 31,s. 54. 1777, c. 118, s. 6. It shall not be lawful for any sheriff, constable, or other officer to execute any summons, capias, or other process on Sunday, unless the same be issued for treason, felony or misdemeanor. Cowlesv.Britfain, 2 Hawks, 204; Bland v. Whitfield, 1 Jon., 123; Devries V. Summit, 86—126. Sec. 920. Wlien there is no officer, or he will not execute process, on afHdavit, the clerk shall direct process to the sliei-ifl:' of adjoining county. R. C, c. 31, s. 55. 1879, c. 156, s. 3. 1821, c. 1080. 1822, c. 1132, s. 1. 1846, c. 61. If at any time there should not be in the county a proper officer to whom precepts or process, original, mesne or final, of a court of record, shall or ought to be directed, who can lawfully execute the same; or if there be such officer who shall refuse or neglect to execute such precept or process, then the clerk of the court from which the same hath issued or shall issue, upon the facts being verified befoie him by written affidavit, subscribed by the plaintiff or his agent, shall issue such precept or process to the sheriff of any adjoining county, who shall have Chap 23.] COURTS-SUPERIOR. 379 power to execute, and shall execute the same, in like manner as if he were sheriff of the county. CoUais V. McLeod, 8 Ired. , 221 ; Bowen v. Jones, 13 Ired., 25. Sec. 930, When process to issue to sheriff of adjoining county. 186»-'70, c. 175, s. 1. In all cases where the sheriff of any county shall be interested, if there is no coroner in said county process may be issued to and shall be executed by the sherift ot any adjoining county. Yeargin v. Siler, 83—348. Sec 931. Sheriff executing process out of his county to iutve extra pay. K. C c. 31, s. 56. 1822, c. 1133, s. Whenever any precept or process shall be directed to the sheriff of an adjoining county^ to be served out of his county as aforesaid, such shenff shall have for such service, not only the fees allowed by law but a further compensation of five cents for every mile of travel m going to and returning from service of such precept or prociss: Provided, that whenever any execution of five hundred dollars or upwards shall be du-ected to the sheriff of an adjoining county, under this chapter, such sheriff shall not be allowed mileage, but only the com- missions to which he shall be entitled. Sec 933 If defendant in penal suit plead former judg- ment, plaintiff may reply fraud; release of the action void; defendant pleading falsely indictable. R. C, c. 31., s. lOO. 4 Hen. VII, c. 20. If an action be brought in good faith by any person to recover a penalty under a law of this state, or ot the United States, and the defendant shall set up in bar thereto a former judgment recovered by or against him in a former action brought by any other person for the same cause, then the plaintiff in such action, brought m eood faith, may reply that the said former 3udgment was obtained by covin ; and if the collusion or covm so averred be found, the plaintiff in the action sued with good faith shall have recovery; and no release made by such pany suinsr in covin, whether before action brought or after, shall be in anywise available or effectual; and every per- son pleading such false defence shaU be guflty ot a mis- demeanor. 380 COURTS— SUPERIOR. [Chap. 23. Sec. 033. Payment or satisfaction may be pleaded in suits on bond and judgment; also payment or satisfac- tion after the day of paying in suits on bond, con- ditioned to be discliarged by a less sum. K. C, c. 31, s. 101. 4 Hen. VII., s. 20. When an action shall be brought on any single bill oi- on any judgment, if the defendant had paid the money due upon such bill or judgment before action brought, or where the defendant hath made satisfaction to the plaintiff of the money due on such bill or judgment in other manner than by payment thereof, such payment or satisfaction may be pleaded in bar of such action; and where only part of the money due on such single bill or judgment hath been paid by the defendant, or satisfied in other manner than by payment of money, such part payment or part satisfaction may be pleaded in bar of so much of the money due on such single bill or judgment, as the same may amount to; and where an action is brought on any bond which hath a condition or defeas- ance to make void the same upon the payment of a lesser sum at a day or place certain, if the obligor, his heirs, executors or administrators have, before the action brought, paid to the obligee, his executor or adminis- trator, the principal and interest due by the condition or defeasance of such bond, though such payment were not made strictly according to the condition or defeasance; or if such obligor, his heirs, executors or administrators have before action brouglit made satisfaction to the plaintiff of the principal and interest due by the condi- tion or defeasance of such bond, in other manner than by payment thereof, yet the said payment or satisfaction may be pleaded in bar of such action, and shall be efifec- tual as a bar thereof, in like manner as if the money had been paid at the day and place, according to the con- dition or defeasance, and so pleaded. Sec. 934. In suits on penal bonds, the sum due, interest and costs being brought into court, penalty shall be discharged. K. C, c. 31, s. 103. 4 Anne, c. IC, s. 13. If at any time, pending an action on any such bond with a penalty, the defendant shall bring into court, where tlie action shall be pending, all the principal money and interest due, and also all such costs as have been ex- pended in any suit upon such bond, the said money shall be deemed and taken to be in full satisfaction and discharge Chap. 23.] COURTS -SUPEEIOR. 381 of said bond, and the court shall give judgment accord- ingly. Governor V. Sutton, 4 D. & B., 484; Thoroughgood v. Walker, 2 Jon., 15. Sec. 935. Judgments to stand till reversed. R. C, c.31, s. 103. 4 Hen. IV., c. 23. Every judgment given in a court of record having jurisdiction of the subject, shall be, and continue in foice until reversed according to law. Hamilton v. Wright, 4 Hawks, 283; Armstrong v. Harshaw, 1 Dev., 187; White V. Albertson, 3 Dev., 241; Jones v. Jones, 8 Dev., 300; Barnard v. Roe, 4 Dev., 295; Irby v. Wilson, 1 J). & B. Eq., 568; Skinner v. Moore. 2 D.' & B., 138; Winalow v. Anderson, 3 D. & B., 9; Jennings v. Stafford, 1 Ired, 404; Hafner v. Erwin, 4 Ired., 529. See. 936. Non-snit not allowed after verdict. R. C, c. 31, s. 110. 3 Hen. IV., c. 7. In actions where a verdict shall pass against the plain- tiff, he shall not be non-suited. Sec. 937. Party in execution not to be discharged on habeas corpus. R. €., c. 31, s. 111. 2 Hen. V., c. 2. When a certiorari or writ of habeas corpus cum causa shall issue, and the sheriff or other officer to whom it is di- rected shall return upon the same that the prisoner is condemned, by judgment given against him, and held in custody by virtue of an execution issued against him, the prisoner shall not be let to bail, but shall be presently re- manded, where he shall remain until discharged in due course: of law. Sec. 938. Death between verdict and judgment, not error. If, &c. R.C., c.31, s. 112. 17 Chas. II., c. 8, s. 1. In no action shall the death of either party between the verdict and the judgment be alleged for error, if such judgment be entered within two terms after the verdict. Sec. 939. Surveys ordered in cases of disputed boundary; how and by whom made; charges for surveys to he taxed as costs. R. C, c. 31, s. 119. 1779, c. 157, s. 7. 1786, c. 252, ss. 1, 2. Whenever in any suit pending in the superior court, the bounds of lands shall be drawn in question, the court may, if deemed necessary, order a survey of the lands in dispute, agreeable to the bounds and lines expressed m each party's titles, and such other surveys as shall be deemed useful; which surveys shall be made by two sur- 382 COURTS— SUPERIOR. [Chap. 23. veyors appointed by the court, one to be named by each of the parties, or by oue surveyor, if the parties agree; and the surveyors shall attend according to the order of the court, and make the surveys, and shall make as many accurate plans thereof as shall be ordered by the court; and for such surveys, the court shall make a proper allow- ance, to be taxed as among the costs of the suit. Sec. 940. Return on notice, evidence. R. C, c. 31, s. 123. 1799, c. 537. When a notice shall issue to the sheriff, his return thereon that the same has been executed shall be deemed sufficient evidence of the service thereof. Sec. 941. Speedy collection of proceeds of judicial sales, by motion. R. C, c. 31, s. 129. The supreme and other courts ordering a judicial sale, or having possession of the bonds which may have been taken on such sale, may, on motion, after ten days' no- tice thereof in writing, enter judgment as soon as the money may become due against the debtors or any of them, unless for good cause shown the court shall direct some other mode of collection. Gotten expurU, Phil. Eq., 79; Blackburn v. Brooks, 65 — 413; Mauney v. Pemberton, 75 — 219; Chambers v. Peuland, 78— 53 ; Smith v. Moore, 79— 82. Sec. 942. Purchasers under judicial sales protected; deemed legal owners. 1858-'9, c. 50. Any person let into possession under any judicial sale confirmed, where the title may be retained as a security for the price, shall be deemed the legal owner of the piemises for all purposes of bringing suits for injuries thereto, after the day of sale, by trespass or wi'ongful possession taken or continued, in the same manner as if the title had been conveyed to him on day of sale, un- less restrained by some order of the court directing the sale; and the suit so brought shall be under the conti'ol of the court ordering the sale. Sec. 94.3. Quakers may wear hats in court. R. C, c.31, s. 131. 1784. c. 209. The people called Quakers may wear their hats in courts of judicature, as elsewhere, according to the custom of their sect. Chap. 24.] COURT— SUPREME. 383 Sec. 944. Certain cases pending in courts of «?? ts .'4, c. 183. 1874.'5,c. 81. 1876.'7, c. 9. All suits, petitions and other proceedings pending in the late courts of equity, and in the late courts of pleas and quarter sessions, and not determined by final judg- ment or decree, and all such cases wherein any act was decreed to be done or deed to be executed and said act was not done nor "deed executed, may be transferred to the superior court of the county in which they were pend- ing, at the instance of any person interested. And said superior court shall have power to make all orders, judg- ments and decrees as shall be necessary for finally adju- dicating and settling the same. Curtis' heirs ex part^. 82—435; Lash v. Thomas, 86—313. CHAPTER TWENTY-FOUR. OOUKT--SUPEEME. Section. 945. Supreme court, ite jurisdiction. 946. Cases, how taken to the su- preme court. 947. Claims against the state. 94&. Manner of prosecuting claims against the state. 949. Justices of the supreme court may take probate of deeds, &c. 950. Justices of the supreme court to appoint a marshal; how paid. 951. Compensation of servant of su preme court to be fixed by the court; how selected or re- moved. 953. Rooms set apart for preserving certain records. 953. Supreme court to convene on the first Mondays in February ftud October. 954. To sit till business is dispatch- Section. ed; name and style of court; to stand adjourned if no jus- tice attends during the first week. 9,55. Judges to take and subscribe oaths to be filed, «fcc. 956. Two, in case of illness, &c., to hold court. 957. Court to render judgment on view of record; if to superior court, final judgment to be certified to that court; in crim- inal cases, decision certified to court below; how that court to proceed. 958. Clerk of supreme court, his bond and oath ; where office to be kept. 959. Clerk to record such parts of proceedings as the court shall direct. 38-1: COURT— SUPREME. [Chap. 24:. Section. 960. Clerk's pay fur such services. 961. Justices lo prescribe rules of practice for supreme and su- perior courts. 963. On appeals from interlocutory judgment, &c., no judgment to be entered; opinion with instructions to be certified to court below. 963. Exhibits in cases proved by ■witnesses; to be examined by supreme court; rules as to sucli witnesses. 964. Justices to deliver their opin- ions in writing; no certificate of decision, no execution to be issued until the opinion of the court is delivered to the clerk. Section. 965. Court may amend any proceed- ing; may amend by making parties; may allow further tes- timony to be taken. 966. When petition to rehear final judgment may be filed, &c. 967. Suits may be dismissed for fail- ure to prosecute after notice. 968. Certificates of decisions trans- mitted to court below on the rise of the court; execution for costs in supreme and su- perior courts is issued from those courts respectively. 969. In the absence of tie attorney general, court lo appoint coun- sel for the state. Sec. 945. Supreme court, its jurisdictiou, Coust., Art. IV., s. 8. C. C. P., s. 413. The supreme court shall have jurisdiction to review, upon appeal, any decision of the courts below, upon any matter of law or legal inference. And the jurisdictioa of said court over "issues of fact" and "questions of fact" shall be the same exercised by it before the adoption of the constitution of one thousand eight hundred and sixty -eight, and the court shall have the power to issue any remedial writs necessary to give it a general su- pervision and control over the proceedings of the inferi- or courts. Bethea V. McLennon, 1 Ired., 523; Runyon v.Anderson, 3 Ired.,586; Stale V. Crayton, 6 Ired., 164; Am. Bible So. v. Ex'rs of Hollister, 1 Jon. Eq., 10; Smilh v. Cheek, 5 Jon., 313; State v. Jenkins, 6 Jon., 19; Caroon v. Rogers, 6 Jon., 340; Rodman v. Davis, 8 Jon., 134; Gates v. Whitfield, 8 Jon., 266; Grissett v. Smith, Phil., 297; Heilig v. Stokes, 63—613; Biggs- ex parte, 64 — 202; Rogers v. Goodwin, 64 — 278; Walton v. Jordan, 65^ 170; Stale v. Jefferson, 66—309; Islcr v. Brown, 67—175; Foushee v. Pat- tershall, 67—453; Rush v. Steamboat Co., 68—73; AIcKinnon v. Faulk, 68 279; Bledsoe v. Nixon, 69—81; Keener v. Finger, 70—35; State v. Ketcliey, 71—147; Duvall v. Rollins, 71—218; Slate v. West, 71—263; Holmes v. Godwin, 71—306; Perry v. Tuppcr, 71—880; Sprinkle v. Footc, 71—411; Williams V. Williams, 71— 427; State v. Armstrong, 72 — 193; Watson v Dodd, 72—240; Wliitford v. Foy, 72—247; Benbow v. Robbins, 73—422; Phiferv. R. R. Co., 72—433; Ma.xwell v. Caldwell, 72—450; Horne v Home, 72— 534; State v. Powell, 74-270; State v. R. R. Co., 74—287; Brink V. Black, 74—329; Johnson v. Bell. 74— .855; Wallington v. Mont- gomery, 74—372; McRuc v. Com'rs, 74—415; Mitoliell v. Kilburn ,74 — 183 Chap. 24.] COURT- SUPREME. 385 Swep^on V. Summey, 74-551; Ir. re. Schcnck, 74-607; ninton v Deans, 75_18- Ilornev. Home, 75-101 ; State v. Applewhite, 75-229; Ol.ver v. Wilev '-.5-320; House v. Quinn, 76-354; Barnes v. Fort, 77-28; Cannier V Cobb 77-30; Long v. SwimlcU, 77-170; Gragg v. Wagner, ,7-246; Com-r.s'v. R. R. Co., 77-297; Rollins v. Henry, 77-467; Cra^vley V Woodfiu 78-4; Bernard v. Johnson, 78-25; Henry v. Smith, 78— 27- Perrv v. Shepherd, 78-83; Williamsoa v. Canal Co., 78-1..0; Com rs V Man-nin, 78-181; McBryde v. Patterson, 78-412; DrivcrV ease .8- 423; State v. Lindsey, 78-499; State v. Lane, 78-547 Slate v Small- wood 78-560; Smith v. Moore, 79-82; Oldham v. kerchner, ,9-106; Dohson V. Chambers, 79-142; Hill v. 0..cndine, 79-331 ;Chasta,n v. Coward 79-513; Meekinsv. Tatem; 79-546; Paschall v. Bullock, 80-8; Bankv Creditors, 80-9; Brooks V. Iloadon, 80-11; Skinner v.Badham, 80-14- Oldham V. Snced, 80-15; Ilalyburlon v. Carson, 80-16; Sutton V Sebouwald, 80-20; Jones v. Boyd, 80-258; Pain v. Pain, 80-322; Whissenhunt v. Jones, 80-348; State v. Edney, 80-360; State v. Spurtin, 80-362- State V. Murray, 80-364; State v. Scott, 80-365; State v. Mc- Gimsey' 80-377; Suite v. Davis, 80-384; State v. Secrest, 80-4o); State V Keeter 80-472; State v. Blackburn, 80-474; Earpv. Richardson. 81- 5- Haywood V. Daves, 81-8; Devereux v. Devereux, 81-12; Lewis v Rountree, 81-20; In re. Daves, 81-72; Bell v. Cunningham, 81-8.; Sim- mons Y Foscue. 81-86; Kidder v. Mcllheuny, 81-123; Cannon v. Morris, 81-139- Clifton V. Wynn, 81—100; State v. Lawrence, 81-522; State v. Thorn, 81-555; State v. Fox, 81-576; Mizell v. Simmons, 82-1; Sim- dcrs v. Norris, 82-4; AVhite v. Clark, 82-6; Grant v. Reese, 82-,.; Wil- liams v Kivett 82-110; Saunders v. Norris, 82-243; Dallon v. Webster, 8o_''97- McCurry v. McCurry, 82-296; R. R. Co. v. Richardson, 82-343; Ammon V. Ammon, 83-398; Gay v. Brookshire, 82-409; Wilson v Line- bercer 82-412; Clayton v. Johnson, 82-433; Badger v. Daniel, 82-468; Bank V. Graham, 82-489; Gorman v. Bellamy, 82-406; Shields v. Whila- ker 82—516- Suddcrlh v. McCombs, 82—535; State v. Leitch, 82—539; State V Hinson 82— 540; Stale v. Swepson, 82-541; State v. Padgett, 82-544; Slate V. Keeter, 82-547; State v. Crockett, 83-599; State v. Baxter, 82- 002- Stale v. Jones, 83-091; State v. Braswell, 82-693; Gordon v. Sander- son' 83-1; Corhin v. Berry, 83-27; Sanderson v. Dalle v , 83-07; Wo,nbl_e V Leach 83-84; Jones v. Holmes, 83-108; May v. Dardon, 81.-23, ; Phillips V. Lcntz. 83-210; Hull v. Carter. 83-249; Perry v. Adams, 83- "66- Waltou V. Pearson. 83—309; Weilons v. Jordan. 83-371; Bank v. Piu'kers 83-377; Telegraph Co. v. R. R. Co.. 83-420; Hutchn.'^on v. Rum- felt 83^41 • Lindsay v. Moore, 83-444; Andrews v. AVhisnant. 83— 446 ; Fov v Haughton, 83-467; Adams v. Thomas. 83-5-21; Howell v. Ray. 83 -558- State v. Swepson. 83-584; Slate v. Ham. 83-590; Slate v. Pollard. 83-597- State v. Hardee. 83-619; State v. Ke dh, 83-620; State v. Grady. 83-643- State v. Donaldson. 83-683; Greensboro v. Scoll, 81-184; Belden V Snead 84-243; Bryant v. Fisher, 85-71; McMillan v. Baker. 85-291; Tucker v. Baker, 86-1; Allen v. Baker, 80-91; Ray v. Pattou, 86-386: Howertonv. Henderson, 86-718; Burnelt V.Nicholson, 86-728; State v. Randall, 87—571. 17 3S6 COURT— SUPREME. [Chap. 24. Sec. 94C. Cases, liow taken to the supreme court. C. C. P., s. 414. Cases shall be taken to the supreme court by appeal as provided iu this code. Grissettv. Smilh, Phil., 297; Clerk's office v. Huffsleller, 67—449; State V. Kelclo', 71—147; Slate v. Giiffiu, 71—304; State v. Hawkins, 73—180; Slate V. Patrick, 73 — 217; "Wade v. New Berue, 73—498; Adams v. Koeves. 74 — lOG; Greene v. Ilobgood, 74 — 234; Wilson v. Ilutcliinson, 74—432; Kirk V. Baruhart, 74 — 053; Martin v. Cluisleen, 7.5— 9G; RicUardsou v. Debiiam, 75 — 390; Bradley v. Jones, 7ti — 204; Green v. Castleberiy, 77—164; State v. Morgan, 77—510: Taylor v. Brewer, 78—8; Meekins v. Tatcm, 79—546; Sutton v. Sebonwald, 80—20; Slate v. Spurtin, 80— 363; State V. Scott, 80—365; State v. Keeter, 80—473; Smith v. Lyon, 83—3; Sever V. McLaughlin, 82—383; Wadsworthv. Carroll, 82— 333; nutchinson V. Rumfelt, 83 — 425; "Walton v. Pearson, 82—464; State v. "Walker, 82— 696; State V. Donaldson, 83—683; Brown v. Williams, 83—684; AVilson v. Seagle, 84—110; Syme v. Broughton, 84—114; Brown v. Williams, 84— 116; Parker v. R. K. Co., 84—118; Hines v. Iliues, 84—122; Turlington v. Williams, 84—125; State v. "Vanu, 84—733; State v. Moore, 84—734; State V. McDowell, 84—798. Sec. 947. Claims against the state. C. C. P., s. 415. Const., Art. IV., s. 9. The supreme court shall have original jurisdiction to hear claims against the state, but its decision shall be merely recommendatory; no process iu the nature of ex- ecution shall issue thereon; they shall be reported to the next session of the general assembly for its action. Bledsoe v. The State, 64—392; Reynolds v. The State, 61 — ^460; Rand v. The State, 65—194; Battle v. Thompson, 65—406; Boner v. Adams, 65— 639; Bayne v. Jenkins, 66-356; Sinclair v. The State, 69—47; Clements v. State, 77—143; Home v. The State, 83—382; Home v. The Slate. 84—363. See. 948. Manner of prosecuting claims against the state. C. C. P., s. 410. Auy person having any claim against the state may file his complaint in the office of the clerk of the supreme court, setting fortli the nature and grouuds of his clami. He shall cause a copy of his complaint to be served on the governor, and therein request hiiu to a|)pear on behalf of the state and answer his claim. The copy sliall be served at least twenty days before application for relief siiall be made to the court. In case of an appearance for t he state by the governor, orany other authorized officer, the ])lead- iugs and trial shall be conducted in such manner as the court shall direct. If an issue of fai t shall be joined on the pleadings, the court shall transfer it to the superior Chap. 24.] COURT-SUPREME. 387 court of some convenient county for trial by a jury, as other issues of fact are directed to be tried, and the judge of the court before whom the trial is lind shall certify to the supreme court, at its ne.xt term, the verdict and the case, if any, made up and settled as prescribed in cases of appeal to the supreme court. If the state shall not ap- pear in the action by any authorized offirer, the court may make up issues and send them for trial, as aforesaid. The supreme court shall in all cases report the facts found, and their recommendation tJiereon, with the reasons thereof, to the general assembly at its next term. Bledsoe v. The State, 64—393; Bonorv. Adams, 05—639; Henry v. The State. 68— 46o; Clements v. The Slate, 76—199; Clements v. The State, 77 —142; Home v. The State, 83—383. Sec. 949. Justices of supreme court may take probate of deeds, &c. C. C. P., s. 417. 1868-'9, c. 277, s. 11. The several justices of the supreme coui-t shall have like powers to take the probate of deeds, and to examine manied women respecting their free consent to deeds made by them, to issue and hear writs of habeas corpus, to issue warrants for the arrest of persons charged with crime, and to dischai-ge such persons on bail, as is or may be given to the judges of the superior com-ts. In re. Bryan, 1 Winst., 1. Sec. 950. Justices of tlie supreme court to appoint a marslial, hoAV paid. 1873-'4, c. 34. 1881, c. 30C. The justices of the supreme court may appoint an officer to be styled marshal of the supreme court, remov- able at will, who shall attend upon the court during its sessions, and said marshal shall be entitled to receive five hundi-ed dollai's per annum, payable monthly by the state treasurer upon the certificate of the clerk of the court. Sec. 951. Compensation of servant of supreme court to be fixed by the court; bow selected or reiuoved. 1873- '4, c. 122. 1880, c. Gl. The servant and messenger attending andw^aiting upon the supreme court and attorney general's office shall be allowed such pay for his servi':es. per month, as may be fixed and certiied to by the justices of said court; paid servant or messenger to be selected or removed by the justices thereof. 888 COURT— SUPREME. [Chap. 2i. Sec. 952. Rooms set apart for preserving' certain records. 1873-'4, c. 117. The room in the capitol heretofore ocinipied as the office of the sui)erintendent of public works, is assigned to the clerk of the supreme court for the proper care and safety of records of said court. Sec. 953. Siiprenie court to convene on the first Mondays in February and October. 1881, c. 178. There shall be held at the seat of government of the state in each j^ear two terms of the supreme court, com- mencing on the first Monday in February and the first Monday in October. Sec. 954. To sit till business is dispatched; name and style of court; to stand adjourned if no justice attends during- first week. II. C, c. 33, s. 2. 1804, c. OOO, s. 2. 1805, c. 674, s. 1. 1818, c. 9G2, s. 2. 1828, c. 13. 1842, c. 15. 184G, cs. 28, 29. The court shall sit at each term until all the business on the docket shall be determined or continued on good cause shown. The court shall bear the name and style of "The Supreme Court of North Carolina," and shall be a court of record ; and the papers and records belonging to the clerk's office thereof shall be constantly kept within the city of Raleigh: Provided, that in case no one of the justices shall attend the term during the first week there- of, at the end of that time the court shall stand adjourned till the next term, and the causes on the docket be con- tinued. Sec. 965. Justices to take and subscribe oatlis to be filed, &c. II. C, c. 33, s. 3. 1818, c. 963, s. 1. The justices, before they act as such shall, before the governor or some judicial officer, take and subscribe the oaths appointed for the qualification of public officers, and also an oath of office, which shall be certified by the officer taking the same and delivered to the secretary of state, to be safely kept. Sec. 956. Two, in case of illness, &c.,to hold court. K. C, c. 33, s. 4. 1834, c. 13. When any one of the justices is disabled from attend- ing, from illness or other inevitable cause, two of the justices shall hold the court, hear and determine causes, and possess and exercise every other authority which by law may appertain to said court as fully to all intents Chap. 24.1 OOURT-SUPKEME. 389 and purposes as if all the justices of the court were pres- ent. Sec. 957. Court to render judgment on review of record; if to superior court, final judgment to be certified to that court; in criminal cases, decisions certified to court below; how that court to proceed. K. C, c. 33, s. <;, 1799, c.520,ss. 1,3. 1818, c. 963, s. 4. 1830, c. 2, s. 1. 1808, c. 963, s. 4. In every case the court may render such sentence, judgment and decree as on inspection of the whole recoid it shall nppear to them ought in law to he rendered there- on; and it may at its discretion make the writs of execu- tion which it may issue returnable either to the said court, or to the superior court: Provided, that when an execution shall be made returnable as last mentioned, a certificate of the final judgment of the supreme court shall always be transmitted to the superior court afore- said, and there be i-ecorded: Provided further, that the said superior court may enforce obedience to the execu- tion, and in the event of its not being executed may issue new or furthei- execution or process thereon in the same manner as though the first execution had issued from the said superior court: Provided also, that in criminal cases the decision of the supreme court shall be certified to the superior court from which the case was transmit- ted, which superior court shall proceed to judgment and sentence agreeable to the decision of the suj)reme court and the laws of the state. Bcthca V. JlcLennoD, 1 Ircil., 523; Runyon v. Anderson, 3 Irod., 586; Stnlc V. :McIiilyre, 1 Jon., 1 ; Am. Bible Society v. Executors of Ilaliistcr, 1 Job. Eq., 10; Stiitc v. Jacobs, 2 Jon., 53; Smith v. Cheek, 5 Jon.. 213; CarooD V. Rogers, 6 Jon., 240; Jones v. McLiuiiine, 7 Jou., 392; Rodman V. Davis, 8 Jon.. 134; Gates v. Whitfield, 8 Jon.. 266; Grissett v. Smith, Phil., 297; Greenlee v. Suddcrth, 65 — 470; Rush v. Steamboat Co., 68—72; State V. I\etcUey, 71 — 147; Simmons v. Fescue, 81—86; McDamel v. Pol- lock, 87—503. Sec. 958. Clerk of the supreme court, his bond and oath; where office to be kept. K. C, c. 33, s. 9.. 1813, c. 839, s. 3. 1818, c. 963, s. 5. 1846, c. 38, s. 3. Before undertaking his duties, the clerk of the supreme court shall enter into bond, with sufficient surety, pay- able to the state of North Carolina, in the sum of fifteen thousand dollars, conditioned for the faithful discharge of his duties and for the safe keeping of all records com- mitted to his custody, which bond shall be lodged with 390 COUBT— SUPREME. [Chap. 24. the secretary of state; and he shall also before said jus- tices, or one of them, take the oaths which are prescribed for clerks of the superior court, and shall keep his office in the city of Raleigh. Sec. 959. Clerk to record such parts of proceedings as the court shall direct. K. C, c. 33, s. 11. 1831, c. 20,s. 1. The court may order the clerk to record such parts of the record of cases as it may deem necessary. Sec. 960. Clerk's pay for such services. K. C, c. 33, s. 13, 1831, c. 20, s. 3. In estimating the allowance to the clerk for making the record as directed, the justices shall not exceed the sum of thirty cents for each page recorded. Sec. 961. Justices to prescrihe rules of practice for su- preme and superior courts. K. C, c. 33, s. 13. C. C. P.,s. 394. 1818, c. 963, s.O. The justices of the supreme court shall prescribe and establish from time to time rules of practice for that court and also for the superior court. The cleik shall certify to the judges of the superior court the rules of practice for said court, to be entered on the records thereof in each county. Johnson v. Sedbcny, 65—1; Perry v. Morris; 65 — 221; Rules of the Su- preme Court, 80—488, 81—609, 83— G89. Sec. 963. On appeal from interlocutory judgment, &c., no judgment to be entered; opinion with instructions to be certified to court below. R. C, c. 33, s. 14. 1831, c. 30, s. 3. When an appeal shall be taken to the supreme court from any interlocutory judgment, the supreme court shall not enter any judgment reversing, affirming or mod- ifying the judgment, order or decree so appealed from, but shall cause their opinion to be certified to the court below, with instructions to proceed uix)n such order, judgment or decree, or to reverse or modify the same ac- cording to said opinion, and tlie court below shall enter upon its records the opinion at length, and proceed in the cause according to the instructions. arissett v. Smitli, Phil., 297. Chap. 24.J COURT-SUPREME. 391 Sec. OC3. Exhibits in cases proved by witnesses to be cx- aniincrt by supreme court; rules as to such witnesses. B. C, c. 33, s. 20. K. C, c. 33, s. 15. 1818, c. 902, s. 5. l'820, c. 1043. 1848, C.30. Exhibits or other documents relative to cases pending in the supreme court may be. proved by the parol testi- mony of witnesses to be examined in said court i" the same manner and under the same lailes as such exhibits or documents may be proved in the superior court; and suitors iu said court may have subpoenas to enforce the attendance of witnesses, who shall be liable to the same penalties and actions for non-attendance, and be entitled to the same pay for traveling, ferriage and attendance as witnesses in the superior court: Frovided, that wit- nesses attending the supreme court shall be taxed in the bill of costs and paid by the party on whose behalt they may be summoned. Ray V. Riiy, 6 Ircd. Eq., 055. Sec. 064. Justices to deliver their opinions in writingr; no certificate of decision, nor execution to be issued, until the opinion of the court is delivered to the clerk. B. C, c. 33, s. 1«. 1810, c. 794. The justices shall deliver their opinions or judgments in writing and the clerk shall make no entry upon the records of the court that any cause pending therein is decided, nor give to any person a certificate of such de- cision nor issue execution in such suit, until after the opinion of the court shall have been delivered pubhcly in open court, and a written copy of the same opinion shall have been delivered to the clerk ; which shall after- wards be filed among the records of the court and pub- lished in the reports of the decisions made by the court. State V. Ketchey, 71—147. Sec. 965. Court may amend any proceeding ; may amend by making parties ; may allow further testimony to be taken. K. C, c. 33, s. 17. 1777, c. 115, s. 75. 1785, c. 233, s. 2. 1792, c. 360, s, 1. 1831, c. 46, s. 2. The supreme court shall have power to amend any process, pleading or proceeding either in form or substance for the purpose of furthering justice, on such terms as shall be deemed just at any time before final judgment. Also to amend by making proper parties to any case where the court may deem it necessary and proper for the purposes of justice and on such terms as the court may prescribe. And also whenever it shall appear nee- 392 COURT -SUPREME. [Chap. 24. essary for the purposes of justices, to allow and direct the taking of further testimony in any case which may be pending in said court under such rules as may be pre- scribed, or the court may remand the case to the intent that amendments may he made, further testimony taken or other proceedings had in the court below. Kcut V. Bottoms, 3 Jon. Eq., GO; Emmons v. McKesson, 5 Jon. Eq., 93; Fleming v. Muipli, 6 Jon. Eq., 59. Sec 9G0. "When petition to re-hear liual judg'mcnt may be filed, «&o. K. C, c. 33, s. 18. A petition to re-hear may be filed during the vacation succeeding the term of the court at which the judgment was rendered, or within twenty days after the commence- ment of the succeeding term, and upon the filing of such petition the chief justice, or either of the associate justices, may, upon such terms as he sees fit, make an order re- straining the issuing of an execution, or the collection and payment of the same, until the next term of said coui't, or until the petition to rehear shall have been de- termined. Mauncy v. Gidncy, 86 — 717. Sec. 967. Suits may be dismissed for failure to prosecute after notice. K. C, c. 33, s. 20. 1848, c. 28, s. 2. Suits and appeals pending in the su|)reme court may be dismissed on failure to prosecute the same, after a rule obtained for that purpose and served on the plaint- iff or appellant, his agent or attorney, at least thirty days before the term next ensuing that of entering the rule; when, if the party shall fail to ]irosecute his suit or appeal, the court shall, at the election of the adverse paiiy, dismiss the suit or appeal at the costs of the plaint- iff or appellant, or proceed to hear and determine it. Thompson v. Burnett, Jon., 480; Burnett v. Thompson, 7 Joa., 407. Sec. 068. Certificates of decisions transmitted to courts below on the rise of tlie court; execution for costs in tlic supreme and superior courts is issued from those courts respectively. R. C, c. 33, s. 21. 1820, c. 1070. 1825, e. 1282. 1842, c. 1, s. 3. The clerk shall immediately after the rise of each term thereof transmit by some safe hand or by mail to the clerks of the superior court certificates of the decisions of the supreme court in cases sent from said court; and thereupon the said clerks respectively shall issue execu- tion for the costs incurred in the courts from which the Chap. 25.1 CRIMES AND PUNISHMENTS. 393 cases were sent: and the clerk of the s^pi-e"^^,^«"ft shall issue execution for the costs nicurred m that couit, ui- cludlntall publications in newspapers made in the prog- Jess of the fause in that court, and by order of the same nnd all postage of letters which concern tlie transfer of ori-h a Speis And if the clerk shall fail for the space ofYwent^ydaysto perform the duty herem enjomed o transmitting the said certificates ot decisions he shall fmf elt and pay to the party or parties in whose favor the supreme coirt shall have decided, one hundred doUars. Sparks V. Wood, 1 D. &B., 489. Sec. 969. In the absence of the attorney general court to appoint counsel for the state. K. C, 33, s. — . 1»40, If 'the' attorney general should fail at any term of the supreme court to attend to the business which by law is assigned him, the court may appoint some counsel learned in the law to discharge his duties during the term. CHAPTER TWENTY-FIVE. CRIMES AND PUNISHMENTS. Section. 970. Abandonmentof wife and chil- dren by husband. 971. Abandonment, failure to pro- vide support presumptive evidence thereof. 972. Adequate support, failure of husband to provide, for wife and children. 973. Abduction of children. 974. Abduction; conspiracy. 975. Abortion, felony to administer to a woman pregnnut any medicine to destroy her child, or to use an instrument with the same intent. 976. Abortion, misdemeanor to ad- minister medicine to pregnant Section. woman, or use any instru- ment with intent to procure miscarriage. 977. Accessories to felonies before the fact, when, where and how tried and punished. 978. Accessories to felonies after ihc fact, when, where and how tried and punished. 979. Accessories, how proceeded against and punished where principal is not attainted. 980. Accessories before the fact, how punished. 081. Advertisements and legal notices, dc--truction or deface- ment of, punished. 394 CEIMES AND PUNISHMENTS. [Chap. 25. Section. 983. Adulterated liquors, penalty for making or selling. 983. Adulterated and poisonfiu'* liquors, penalty for manufac" turing or selling. 984. Adulterating liquois, penalty for selling recipes for. 985. Arson and other burnings, punisliment for. 986. Artifical islands or lumps; pen- alty for erecting. 987. Assault, punishment therefor. 988. Bigamy, what and how pun- ished. 989. Blackmailing, by accusation, threatening letter or other threats. 990. Bribery of jurors. 991. Bribery; officers receiving bribes, guilty of felony. 993. Bribery; offering a bribe pun- ished. 993. Bridges, misdemeanor to de- molish, break or injure. )94 Burglary, how punished. 995. Burglary, breaking out of dwelling house in the night time. 996. Burglary, breaking into cer- tain houses or buildings, amis- demeanor. 997. Burglary or other felony, the intent to commit, an infam- ous crime. 998. Buying and selling offices. 999. Castration with malice afore- thought. 1000. Castration or maiming without malice aforethought. 1001. Cattle and live stock, nusmark- ing, a misdemeanor. 1002. Cattle and live stock, the wil- ful killing or injuiing of, run- ning at large in the rauge. 1003. Cattle andlive stock, injury to, in unlawful inclosurc. 1004. Concealing birth of child. 1005. Concealed weapons, the car- Section. rying of unlawfully, a mis- demeanor. 1006. Cotton,. sale of witljiu certain hours prohibited. 1007. Cotton, weighing of, regulated 1008. Cotton weigher's oath, tin failure of the wcighi-r to make subscribe and file with the re gister of deeds, a misdemca nor. 1009. County claims, speculation in, indictable. 1010. Crime against nature. 1011. Directors, commissioners and other public officers forbidden to become contractors. 1013. Dueling, sending, accepting or bearing a challenge, a misde- meanor. 1013. Dueling, when death ensues, murder. 1014. Embezzlement, punished as larceny. 1015. Embezzlement of state bonds or other property of the state, by state officers or employees. 1016. Embezzlement of trust funds by public officers, felony. 1017. Embezzlement liy treasurer of benevolent or religious institu- tion, a misdemeanor. 1018. Embezzlement by officer of railroad company, felony. 1019. Embezzlement, conspiracy with officer of railroad. 1030. Embezzlement, sufficiency of indictment for. 1031. Escape, prLson-breach by crim- inal. 1023. Escape, officer indictable for, what necessary for state to prove. 1033. Escape,duty of solicitor in such a case. 1034. Fal.se lights, holding out, on or near sea shore. 1035. False pretence and false token, cheating by. Chap. 25.] CRIMES AND PUNISHMENTS. 395 Section. 1 1036. False pretence, obtaining sig- nature by. 1027. False pretence, obtaining ad- vances npon representation of ownership of property, and promising to apply the same to payment of the debt, and fail- ing to do so. 1028. Forcible entry and detainer. 1029. Forgery, how punished. 1030. Forgery and counterfeiting of bank notes, checks and other securities. 1031. Forgery and counterfeiting, passing, or attempting to pass, notes forged or counterfeited. 1033. Forgery and counterfeiting of certificates of stock by officer or agent of a corporation. 1033. Forgery and counterfeiting, selling forged judgments bonds or other securities. 1034. Forgery of names to petitions and certain papers ;punishment therefor, and for using such forged paper. 1035. Forgery and counterfeiting of foreign coin, passing, or at- temping lo pass, such coin. 1036. Forgery and counterfeiting, having in possession instru- ments for counterfeiling for- eign coin. 1037. Forgery and counterfeiting, fraudulently connecting dif- ferent parts of several genuine bank notes, or other instru- ments. 1038. Forgery and counterfeiting of private marks, stamps or la- bels. 1039. Forgery and counterfeiting; penalty for selling merchan- dise with forged or counter- feited marks, stamps or labels. 1040. Forgery and counterfeiting, fraudulent use of brands. 1041. Fornication and adultery. Section. 1043. Gambling, betting at cards in tavern or retail house, a mis- demeanor. 1048. Gambling, keeper of tavern or liquor shop, allowing games to be played in his house, guilty of a misdemanor. 1044. Gambling, faro -banks and tables prohibited. 1045. Gambling, gaming tables of every kind prohibited. 1046. Gambling, person allowing gaming tables on his premises indictable. 1047. Gambling, lotteries forbidden. 1048. Gambling, sale of lottery tick- ets forbidden. 1049. Gambling, justices of the peace, and other officers, di- rected to destroy gaming tables. 1050. Gambling, justices, and other judicial officers authorized to summon witnesses touching the whereabouts of gaming tables. 1051. Gambling, money or property bet at any prohibited game, liable to be seized. 1052. Gambling, persons opposing destruction of gaming tables or seizure of moneys staked on forbidden games, how pun- ished. 1053. Ginseng, penalty for digging between April and September. 1054. Highwiiys and public roads, overseer of, neglecting his duty. 1055. Homicide, manslaughter, pun- ishment therefor. 1056. Homicide, manslaughter, pun- ishment for second offence. 1057. Homicide, murder, its punish- ment. 1058. Hunting for deer by fire light. 1059. Hunting by fire light, accom- plices. 396 CRIMES AND PUNISHMENTS. [Chap. 25. Section. 1060. Incest, carnal intercourse be- twrcu grand p;irent ami grand child, parent and child, brotlier and ^ister, a felony. 1061. Incest, carnal intercourse be- tween uncle and niece, nephew and aunt, a misdemean- or. 1063. Injuries to houses, churches and fences. 1063. Landmarks, penally for alter- ing or removing. 1064. Larceny or robbery of bank notes and other securities. 1065. Larceny, by servant of mas- ter's goods. 1066. Larceny, horse-stealing. 1067. Larceny, stealing liorse for temporary use or purpose. 1068. Larceny, the felonious, icjury to, or piu'suit of, live stock, witli intent to appropriate the same, a misdemeanor, 1069. Larceny of growing crops or vegetables. 1070. Larceny of wood, or other property growing or being upon land. 1071. Larceny or obliteration of public records, or fraudulent removal of registration books; unnecessary to allege owner- ship or value. 1072. Larceny, fraudulent conceal- ment or destruction of wills. 1073. Larceny, fraudulent disposi- tion by clerk, or other custo- dian of the public laws, re- ports of supremo court, or other public documents, a mis- demeanor. 1074. Larceny, receivers of stolen goods, punishment of. 1075. Larceny, distinction between grand and petit larceny abol- ished. 1076. Liquor selling, retailing with- out license. Section. 1077. Liquor selling to minors for- bidden. 1078. Liquor selling to minors; the father, mother, guardian and cmplo3'cr of minor may sue liquor dealer for damages. 1079. Liquor selling within two miles of public, political speak- ings prohibited. 1080. Jlaiming, with malice afore- thought. 1081. Malicious injury to real prop erty. 1082. Malicious injury to persona) l>roperiy. 1083. Jlarriages, unlawful with fe- males under fourteen years of age without consent of father. 1084. Marriages, unlawful between whiles and negroes. 1(18.3. Marriages, unlawful for regis- ter of deeds, clergymen and justices of the peace to con- sent to the marriage of a ne- gro to a white person. 1086. Mills, owners of, to keep up bridges over ditches, drains and canals. 1087. Mills, the destruction or ob- struction of dams, cuuals or water channels, connecting with a mill, factory or machine works, indictable. 1088. Monuments and tombstones, uidawfulto remove or deface. 1089. Mortgaged propertj-; unlawful to di.'^posc of; suflieiency of indictment and proof. 1090. Odicers failing to discharge their duties, may be indicted and removed from office. 1091. Peddling without license. 1093. Perjury, its punishment. 1093. Perjury, suboriiation of. 1094. Poison, unlawful to put in streams for purpose of catch- ing, killing or driving away fisii. Chap. 25.] CRIMES AND PUNISHMENTS. 397 Section. 1095. Political societies, secret, pro- liibiled. 1096. Punishment for felonies not specified. 1097. Punisliment for misdemeanors not specilied. 1098. li'iilroads, planli roads, turn- pikes and canals, maliciously destroying, obstructing and injuring, penalty wheu death ensues, and when not. 1099. Railroads, wilful injury to, without malice. 1100. Railroads, shooting at or throwing into cars, locomo- tives or trains, punishment. 1101. Rape punished with death. 1103. Rape, assault with intent to commit, a misdemeanor. 1103. Rape, carnal knowledge of a married woman by fraud in personating her husband de- clared to be felony. 1104. Rape, assault with intent to have carnal knowledge of married woman by fraud in personating her husband, I how punislied. 1105. Rape and buggery, what proof sufficient in. 1106. Rebellion or insurection against the slate, a high crime. 1107. Rebellion or insurrection, con- spiracy to destroy the gov- ernment of the state by. 1108. Seamen, enticing from vessels, a misdemeanor. 1109. Seamen, unlawful to secrete or harbor those who have de. serted. 1110. Seamen, justices of the peace authorized to issue search warrants for those who have deserted. Section. 1111. Seamen, either party may ap- peal, justice to reduce to writing testimony of all material witnesses, and re- turn to appellate court, fees of justice. 1113. Sheriffs, constables or other of- ficers failing to execute pro- cess, making a false return thereon, or refusing to dis- charge any other duties, in- dictable. 1113. Slander of women by charge of incontinency, penalty. 1114. Springs, wells and cisterns, wilful injuring, penalty. 1115. Sunday, hunting on, prohibit- ed. IIIG. Sunday, fishing on with seines or nets prohibited; punish- ment. 1117. Sunday, sale of intoxicating liquors on, a misdemeanor. 1118. Telegraph, telephone poles or wires, injury to, a misde- meanor. 1119. Treasurer of the state, fraudu- I lent entries and statements by, a misdemeanor. 1120. Trespass on lands without a license, after being forbid- den, a misdemeanor. 1131. Trespass on public lands, pen- alty therefor. 1133. Trout, unlawful to catch mountain Irout with soine at all times; the taking by shooting or otherwise be- tween the fifteenth day of October and the thirteenth day of December, a misde- meanor. 1123. Water courses, obstruction of, penally. 398 CRIMES AND PUNISHMENTS. [Chap. 25. Sec. 970. Abaiulonment of wife and children by husbaiKl. 1868-'9, e. 209, s. 1. 1873-'4, c. 176, s. lO. 1879, c. 93. If any husband shall wilfully abandon his wife without providing adequate support for such wife, and the chil- dren which he may have begotten upon her, he shall be guilty of a misdemeanor. State V. Deaton, (33 — 496; State v. Brown, 67 — 470; State v. Dunston, 78 —418; Slate v. Davis, 79—603. Sec. 971. Abandonment, failure to provide support pre- sumptive evidence thereof. 1868-'9, c. 209, s. 3. If the fact of abandonment and failure to provide ade- quate support of wife and children shall be proved, or while being with such wife, neglect by the husband to provide for the adequate support of such wife or children, shall be proved, then the fact that such husband neglects applying himself to some honest calling for the support of himself and family, but is found sauntering about, en- deavoring to maintain himself by gaming or other undue means, or is a common frequenter of drinking houses, or is a known common drunkard, shall be presumptive evidence that such abandonment and neglect is wilful. Sec. 973. Adequate support, failure of husband to pro- vide for wife and children. lS68-'9, c. 309, s. 2. 1873-'4, c. 176, s. 11. 1879, c. 93. If any husband, while hving with his wife shall wil- fully neglect to provide adequate support for such wife or the children which he has begotten upon her, he shall be guilty of a misdemeanor. State V. Davis, 79—603. Sec. 973. Abduction of children. 1879, c. 81. Any one who shall abduct, or by any means induce any child under the age of fourteen years, who shall reside with the father, mother, imcle, aunt, brother, or elder sister, or shall reside at a school, or be an orphan and re- side with a guardian, to leave such person or school, shall be guilty of a crime, and on conviction shall be fined or imprisoned at the discretion of the court, or may be sentenced to the penitentiary for a period not exceed- ing fifteen years. Sec. 974. Abduction ; conspiracy. 1879, c. 81, s. 2. Every one who shall conspire to abduct, or by any Chap. 25.] CRIMES AND PUNISHMENTS. 399 means shall induce any child under tlie age of fourteen years, who shall reside with any of the persons aforesaid, or at school, to leave the persons aforesaid or the schoo shall be guilty of a like offence, and on conviction shall be punished as prescribed in the precednig section : Pro^ vided, that no one who may be a nearer blood relation to the child than the persons named m said section shall be indicted for either of said offences. State V. Sullivan, 85—506. Sec 975. Abortion, felony to administer to a woman pregnant any medicine to destroy her child, or to iise an instrument with the same intent. 1881, c. Sol, Every person who shall wilfully administer to any woman either pregnant or quick with child, or prescribe for any such woman, or advise or procure any such woman to take any medicine, drug or substance what- ever, or shall use or employ any instrument or other mealis with intent thereby to destroy said child, unless the same shall have been necessary to preserve the lite ot such mother, shall be guilty of a felony, and imprisoned in the penitentiary for not less than one year or more than ten years, and be fined at the discretion of the court. Sec. 976. Abortion, misdemeanor to administer medicine to pregnant woman or use any instrument with intent to procure miscarriage. 1881, c. 351, s. 3. Every person who shall administer to any pregnant woman, or prescribe for any such woman, or advise and procure such woman to take any medicine, di-ug or any- thing whatsoever, with intent thereby to procure the misc'arriage of any such woman, or to injure or destroy such woman, or shaU use any instrument or apphca,tion for any of the above purposes, shall be guilty of a misde- meanor, and imprisoned in the jail or penitentiary tor not less than one year nor more than five years, and be fined, at the discretion of the court. Sec. 977. Accessories to felonies before the fact, when, where and how tried and punished. B. C, c. 34, s. 53, 1797, c. 485, s. 1. 1853, c. 58. If any person shall counsel, procure or command any other person to commit any felony, whether the same be a felony at common law or by virtue of any statute, the person so counseling, procuring, or commanding, shall 400 CRIMES AND PUNISHMENTS. [Chap. 25. be guilty of felony, and may be indicted and convicted, eitlier as an accessory before tbe fact to the priiacipal felony, tooether with tbe principal felon, or after the conviction of the jirincipal felon; or may be indicted and convicted of a substantive felony, whether the prin- cipal felon shall or shall not have been previously con- victed, or shall or shall not be amenable to justice, and may be punished in the same manner as any accessory before the fact to the same felony, if convicted as an ac- cessory, may be punished ; and the ofJence of the peison so counseling, procuring, or commanding, howsoever in- dicted, may be inquired of, tried, determined and pun- ished by any court which shall have jurisdiction to tiy the principal felon, in the same manner as if such offence had been committed at the same place as the principal felony or where the principal felony is triable, although such offence may have been committed at any place within or without the limits of the 'jtate; and in case the Erincipal felony shall have been committed within the ody cf any county, and the offence of counsehng, pro- curing or commanding shall have been committed within the body of any other county, the last mentioned offence may be inquired of, tried, determined, and punished in either of such counties : Provided, that no person who shall be once duly tried for any such offence, whether as an accessory before the fact, or as for a substantive felony, shall be liable to be again indicted or tried for the same offence. State V. Mann, 1 Hay., 4: State v. Graff, 1 Mur., 270; Statev. Barden, 1 Dev., 518; Slate v. Hardin, 2 D. & B., 407; State v. Hildrcth, 9. Ired., 440; State v. Check, 13 Ired., 114; State v. Ludwick, Phil., 401; State v. Dewer, Go— 572; Slate v. Davis, 87—514. Sec. 978. Accessories to felonies after the fact, when, where and how tried and punished. R. C, c. 34, s. 64. 1797, c. 485, s. 1. 1853, c. 58. If any person shall become an accessory after the fact to any felony, whether the same be a felony at common law or by virtue of any statute or statutes made, or to be made, such person shall be guilty of a misdemeanor, and may be indicted and convicted together with the princi- pal felon, or after the conviction of the principal felon, or may be indicted and convicted for such misdemeanor, whether the principal felon shall or shall not have been previously convicted, or shall or shall not be amenable to justice, and shall be punished by imprisonment in the penitentiary or county jail, for not less than four Chap. 25.] OEIMES AND PUNISHMENTS. 401 months nor more than ten f^^j; and ™ay also be fined in the discretion, of tl^^^f "f ; -i^^'lJ^^nSneS and pun- B^;^^r wS^li^t^l^-dictic. Ji^ isneu oy duj- manner as if the act, by lea- nr tried for the same offence. VnTv Cb tters Dev., 49; State v. Smith. 3 Ircd., 402; State v. Dun- Statev Clntte.n .ue ' ^^^^ 339. gt^te v. Beatty, Phil.. '^l^::';^^^, 401'; State v.Winton.rhU.,19G; State v. Tyler. 85—509. sec. 979. Accessories, how l-«««f<'.«*;^^»''^'"%^f gP^s' ished where priucipal is not attainted. K. C, c. 34, s. Intrderthat accessories "^^ }'^, ,^"ftf'*nnv''nr-nci^.^i ished in all cases, it is enacted, Jl^at if a y pr.nap. ^ff^nriov chnll be in anywise convicted, it shall De lawiui luffei the same punishinent, if he be in anywise con- vktld as he should have suffered if the principal had been sentenced or punished. Sec 980. Accessories before the fact, how punished. 'l8G8,c. 31,s. 3. l874-'5, C.312. Anv person who shall be convicted as an accessory, before t^he fact in either of the crimes of murdeiN arson buSliT or rape, shall be imprisoned for life in the pen- itent ary An accessory before the fact to the stealmg of any horse mare, gelding or mule, on bemg duly con- victed theieof shaifbe imprisoned at liavd labor m the nenSntiary for not less than five nor moi'e than twenty ?easn the discretion of the court. Every accessory 403 CRIMES AND PUNISHMENTS. [Chap. 25. before the fact, in any other felony, shall be punished by imprisoumeut in the penitentiary or county jail, for not more than ten yeare, or may be fined, in the discretion of tlie court. Slate V. Duvis, 87—514. Sec. 981. Advertisements' and legal notices, destruction or defacing of, punished. 187G-'7, c. 215. Any person who shall wilfully and unlawfully deface, tear down, remove or destroy any legal notice or adver- tisement authorized by law to be posted by any officer or other person, the same being actually posted at the time of such defacing, tearing down, removing or destruction, durmg the time for which such legal notice or advertise- ment shall be authorized by law to be posted, shall be guilty of a misdemeanor, and fined not exceeding fifty dollars, or imprisoned not exceeding thii-ty days. Sec, 982. Adulterated liquors, penalty for making or sell- ing. 1858-'9, c. 57, .ss, 1, 4. If any person shall adulterate any spirituous, alcoholic, vinous or malt liquors by mixing the same with any sub- stance of whatever kind, except as hei'einafter provided, or if any person shall sell or offer to sell anv spirituous^ alcohohc, vinous or malt liquors, knowing the same to be thus adulterated, or shall import into this state any spirituous or intoxicating liquors, and sell or ofTer to sell such liquor, knowing the same to be adulterated, be shall be guilty of a misdemeanor, and fined and imprisoned, or both, at tlie discretion of the court. Sec. 983. Adulterated and poisonous liquors, penalty for manufacturing or selling. 1873-'4, c. 180, ss. 1, 2. Any person who shall manufacture, sell, or in anv way deal out spirituous liquors, of any name or kind,"^to be used as a drink or beverage, and the same shall be found to contain any foreign properties or ingredients poison- ous to the human system, shall be guilty of a high mis- demeanor, and imprisoned in the penitentiary not less than five years, and may be fined in the discretion of the court. It, shall be competent for any citizen after making purchase of any spirituous liquors, to cause the same to be analyzed by some known competent chemist, and if upon such analysis it shall be found to contain any foreign poisonous matter it shall he prima facie evidence against the pai-ty making such a sale. Chap. 25.] CRIMES AND PUNISHMENTS. 403 Sec. 984. Adulterating liquors, penalty for selling rec- ipes lor. 1858-'9, c. 57, ss. 3, 3. Any persdii who sliall sell or offer to sell any recipe or formula whatever for adulteratiug any si^irituous or alcoholic liquors, by mixing the same with any substance of whatever kind, except as is hereinafter provided, shall be guilty of a misdemeanor, and fined and imprisoned as is provided in the preceding section: Provided, tha-t this section and the two preceding sections shall not be so construed as to prevent druggists, physicians, and persons engaged in the mechanical aits, from adulterating hquors for medical and mechanical purposes. Sec. 985, Arson and otlier burnings, pnnisliment for. K. C, c. 34, s. 3. 1870-'l, c. 223. (1) Any persofl convicted according to due course of law of the crime of arson, shall suffer death. Stale T. Bullock, 63—570 ; State v. Jones, 69—364. 1863, c. 17. 1868-'9, c. 167, s. 5. (2) Every person convicted of any wilful burning of any gin house or tobacco house, or any part thereof, or, in the night time, of any stable containing a horse or a mule, shall be imprisoned in the penitentiary not less than five, nor more than ten years. State V. England, 78—552; Slatev. Lawrence, 81-523; State v. Thome, 81—555; State v. Giccn, 85—600; State v. Dunn, 86—731. R. C, c. 34, s. 7. 1830, e. 41, s. 1. 1868-'9, c. 167, s. 5. (3)' Any person who shall wilfully and maliciously burn the state house, or any of the public oPficos cf the state, or any court house, jail, arsenal, clerk's office, register's office, or any house belonging to any county or incorpo- rated town in the state, or to any incorporated company whatever, in which are kept the archives, documents, or public papers of such county, town, or corporation, shall, on conviction, be imprisoned in the penitentiary for not less than five, nor more than ten years. Stale V. Mltcliell 5 Ired., 350; State v. Upchurch, 9 Ired., 454; State v. Laugblin, 8 Jon., 455. R. C. c. 34, s. 30. 1835, c. 1378. (4) If any person, with intent to destroy the same, shall wilfuhy and maliciously set fire to and burn any pubhc bridge, or private toll bridge, or the bridge of any incor- porated company, or any fire engine house, or any house belonging to any county or incorporated town, used for public purposes other than the keeping of archives, 404 CRIMES AND PUNISHMENTS. [Chap. 55. documents and pubUc papers, or any house belonffinR tc an incorporated company and used in the business of such company; or if any person shall wilfully and mahciously att^erapt to bum any of the said houses or bridges, or any ot the houses or buildings mentioned in this chapter, the person so offending shall be guilty of a misdemeanor, and punished oy imprisonment in the penitentiary or county ]ail, for not less than four months nor more than ten years. 1874-'5, c, 133. (5) Any person who shall wilfully burn or destroy any other person's com, cotton, wheat, barley, rye, oats buckwheat, rice, tobacco, hay, sti'aw, fodder, shucks or or other provender in a stack, hill, rick or pen, or secured m any other way out of doors, shall be guilty of a mis- flenieanor, and punished by imprisonment in the county jaii or penitentiary for not less than four months nor more than five years. 1874.'5, c. 228. 7 and 8 Geo. IV., c. 30, s. 2. (c.) Whoever shall unlawfully and maliciously set fire to any church, chapel or meeting bouse, or shall unlaw- tuUy or maliciously set fire to any stable, coach house, out-house warehouse, office, shop, mill, barn or granary or to any building or erection used in carrying on any trade or manufacture, or any branch thereof, whether the same or any of them respectively shaU then be in the possession of the offender, or ili the possession of any other pei-son, with intent thereby to mjure or defraud any person or persons, body politic or corporation, shaU be gui ty of felony, and imprisoned in the penitentiary tor not less than live nor more than forty years Slale V. Janes T8-504; St.itc v. England. 78-553; State v. Thome 81- ooo; fatutc V. Jenkins. 84—813. 187G-'7, c. 13. (7) Any person who shall wilfully attempt to burn any dwelling house, unmhabited house, barn, stable, or out house, or mill, manufacturing house, cotton gin, tobacco barn granary or turpentine distillery, the property of anothei-, the person so offending shall be guilty of a misdemeanor, and punished by imi)risonment in the pmiitentiary or county jad, and may also be fined, in the discretion of the court. , v ^ ■, f""'l',^'i'"' '^ ^"''- ^°'^- ^"^'" '■ ^''^'^y- 3 Iroa.. 570; State v. Chvrk. 7 Jon., 16/; Slate v. La.igUlin, 8 Jon., 354. 455: Slate v. Jim, 8 Jon., 458; Chap. 25.] CRIMES AND PUNISHMENTS. 405 State V. Cherry, C3— 493; State v. "Wise, 66—120; State v. Jones, 09—364; State V. King, 09-419; State v. Gailor, 71—88. Sec. 08G. Artificial islands or lumps; penalty for erecting. 1883, c. lOJ). It shall l^e unlawful for any person to erect artificial islands or lumps in any of the waters of the state east of the Wilmington and Weldon Railroad and Petersburg and Weldon Railroad. Any person violating this section shall be guilty ot a misdemeanor. Sec. 987. Assault, punisbment therefor. 1870-'l, c. 43, s. 3. 1873-'4, c. 17C, s. C. 1879, c. 92. ss. 3, C. In all cases of an assault, with or without intent to kill or injure, the person convicted shall be punished by fine or imprisonment, or both, at the discretion of the court: Provided, that where no deadly weapon has been used and no serious damage done, the punishment in assaults, assaults and batteries, and affrays, shall not exceed a fine of fifty dollars or imprisonment for thirty days; but this proviso shall not apply to cases of assault with intent to kill, or with intent to commit rape. State V. Ileidlcburg, 70—490; In re. Sclienck, 74—607; State v. McNeill, 75—15: Slate v. Miller, 75—73; Slate v. Taylor, 83—601; Slate v. Berry, 83-603; State v. Martin, 85—508; State v. Watts. 85—517; Stale v. Gainus, 86—633. Sec. 988. Bigamy, what and how punished. 9 Geo. r\^, c. 31, s. 23. K. C, c. 34, s. 15. 1790, c. 323. 1809, e. 783. 1839, c. 9. If any person being married, shall marry any other person, during the life of the former husband or wife, whether the second marriage shall have taken place in the state of North Carolina, or elsewhere, every such offender, and every person counseling, aiding or abetting such offender, shall be guilty of felony, and imprisoned in the penitentiary or county jail, for any term not less than four months nor more than ten years; and any such offence may be dealt with, tried, determined and punished in the county where the offender shall be apprehended, or be in custody, as if the offence had been actually com- mitted in that county : Provided, that nothing herein shall extend to any person marrying a second time, whose husband or wife shall have been continually absent from such person for the space of seven years then last past, and shall not have been known by such person to have ^06 CRIMES AND PUNISHMENTS. [Chap. 25. been living within that time, nor shall extend to any ner son who at the time of such second marria-e shaU hav« nage nor to any person whose former maniase shall have been declared void by the sentence of any court of competent jurisdiction. ^ " °^ state V Norrcan. 2 Dcv., 223; State v. Patterson. 2 Ircd., 346- State v RobUns, 6 lad.. 23; State v. Bray. 13 Ircd., 289; Slate v. Bamett, 83-C15: Sec. 989. Blackmailing by accusation, threatening letter or other threats. R. C, c. 34, s, llO. If ariy pei'son shall knowingly send or deliver an v letter or writing demanding of an/ person, with menSJs and without any reasonable or piUable cause, amfclmMel money, orvaluable security; or if any person shill accuse or threaten to accuse, or shaU knowingly send or deW any letter or writing, accusing or th.^eatening to accuse any person of any crime punishable by law with Sh or imprisonment in the penitentiary, with a view or in- tent to extort or gam from such person any chattel money, or valuable security, every such offender shall be guilty of a misdemeanor. Sec. 990. Bribery of jurors. R. C., c. 34, s. 34 5 Frtw III., c. 10. 34Baw.iii.,c.8. 38Ea;!m c 1? If any juror, either directly or indirectly, shall take anything troni the plaintiff or defendant hi a civil sSt or fiom any defendant in a state piwecution, or from any other person to give his verdict, every such iuror and the person who shall give such juror anv fee or re- ward to influence his veidict, or induce or procure him to make any gain or profit by his verdict, shall be ffuiltv of an infamous crime, and imprisoned in the penitentiary or county jail not less than four months nor more than ten years. Sec. 991. Bribery; officers receiving bribes, guilty of felony. 18G8-'9, c. 176, s. 2. "^joi Any person hold ng office under the laws of this state who, except in payment of his legal salary, fees or per- quisites shall receive, or consent to receive, directly or indirectly, anything of value or personal advantajje or the promise thereof, for performing or omitting to per- form any official act, or with the exp.-ess or implied un- dei^tandmg that his official action, or omi.ssion to act is to be in any degree influenced thereby, shall be iruiltv ot a telouy, and punished by imprisomneut in the peui- Chap. 25.] CEIMES AND PUNISHMENTS. 407 tentiary for a term not exceeding five years, or fined not exceeding five thousand dollars, or both, in the discretion of the court. Sec. 992. Bribery; oflFeriiig a bribe punished. 1870-'l, c. 232. Any person offering a bribe, whether it be accepted or not, shall be guilty of felony, and punished by imprison- ment for a term not less than one year nor more than five years in the penitentiary or county jail, in the discre- tion of the court. Sec, 993. Bridges, misdemeanor to demolisli, break or in- jure. 1883, c. 271. If any person shall unlawfully and wilfully demolish, destroy, break or tear down, injure or damage any bridge across any of the creeks or rivers or other streams in the state, he shall be guilty of a misdemeanor, and fined or imprisoned, or both, in the discretion of the court. Sec. 904. Burglary, bow punished. 1870-'l, c. 222. Any person convicted, according to duo course of law, of the crime of burglary, shall suffer death. Siatc V. Wise, 66—120, 67—281; State v. Evaus, 00-40; State v. Jones, 69_364; Stale v. Johuson. 75—123. Sec. 995. Burglary, brealf ing out of dwelling house in the uight time. R. C, c. 34, s. 8. 12 Anue, c. 7, s. 3. 78 Geo. IV., c. 29, s. 11. 24, 35 Vic. c. 96, s. 51. If any person shall enter the dwelling house of another with intent to commit any felony or other infamous crime therein, or being in such dwelling house, shall com- mit any felony or other infamous crime therein, and shall, in either "case, break out of the said dwelling house, in the night time, such person shall be guilty of burglary. State v.Hbnry, 9 Ired., 4G3; Stiitev. Boone, 13 Ired., 244; State v. Whit., 4 Jon., 349; Stale v. Jenkins, 5 Joa., 430; State v. Willis, 7 Jon., 190; State V. McDaniel, Winst., 249; Slate v. Jake, 2 Winst., 80; State v. Johnson, Phil., 186; Slate v. McPherson, 70—239. See. 99(5. Burglary, breaking into certain houses or build- ings, a misdemeanor. 1874-'5, c. 1G«. 1879, c. 323. If any person shall break or enter a dwelling house of another otherwise than by a burglarious breaking ; or shall break and enter a storehouse, shop, ware- house, banking-house, counting-house, or other building, where any merchandise, chattel, money, valuable security, or 408 CRIMES AND PUNISHMENTS. [Chap. 25. other personal property shall be; or shall break and enter any unnihabited house; with intent to commit a felony or other infamous crime therein; every such person shall be guilty ot an infamous crime, and imprisoned in the peni- tentiary or county jail, not less than four months nor more than ten years. Slate V. Dozier, 73—117; State v. Hughes, 8G— 663. Sec. 997. Burglary or other felony, the intent to commit, an infamous crime. 24, 26 Vict., c. 9C, s. 58. If any person shall be found by night, armed with any dangerous or offensive weapon, with the intent to break or enter a dwelling, or other building whatsoever, and to commit a felony or other infamous crime therein; or shall be found by nigh^, having in liis possession, without law- tul excuse, any pick lock, key, bit or other implement of house breakmg; or shall be found by night in any such building, with intent to commit a felony or other infa- mous crime therein, such person shall be gudty of an in- famous crime, and punished by fine or imprisonment, or both, in the discretion of the coui-t. _ State V. Dozier, 73—117. Sec. 998. Buying and selling oflBices. R. C, c. 34 s 33 5, G Etlw. VI., c. 16, ss. 1, 5. If any person shall bargain or sell an office or deputa- tion of an office, or any part or parcel thereof, or shall take money, reward, or other profit, diiectly or indirectly or shall take any pi-omise, covenant, bond or assurance for money, reward or profit, for an office or the deputa- tion of an office, or any part thereof, which office or any part thereof shall touch or concern the administration or execution of Justice, or the receipt, collection, control or disbursement of the public revenue, or shall concern or touch any clerkship in any court of record wherein jus- tice IS administered; or if any person shall give or pay money, reward or profit, or shall make any promise agreement, bond or assurance for any of the said offices' or for the deputation of any of them, or for any part of them, the person so offending in any of the cases afore- said shall be gmlty of a misdemeanor, and on conviction thereof shall forfeit all his right, interest and estate in such office, and eveiy part and parcel thereof, and shall be imprisoned and fined at the discretion of the court Chap. 25.] CRIMES AND PUNISHMENTS. 409 Sec, 999, Castration with malice aforetlioiiglit, R. C, c. 34, s. 4. 1831, c. 40, s. 1. 1868-'9, c, 167, s. 6, If aDy person, of malice aforethought, shall unlawfully castrate any other person, or cut off, maim, or disfigure any of the privy members of any person, with intent to murder, maim, disfigure, disable or render uupotent such person, the person so offending shall suffer imprison- ment in the penitentiary for not less than five nor more than sixty years. State V. Peter, 8 Jon., 19; State v. King, 69-419; State v. Skidmore, 87—509. Sec. 1000, Castration or maiming without malice afore- thought. K. C, c. 34, s. 47. 1754, c. 56. 1791, c. 339. ss. 2, 3. 1831,c. 40, s. 2. If any person shall, on purpose and unlawfully, but without malice aforethought, cut or slit the nose, bite or cut ofi a nose, lip or ear, or disable any hmb or member of any other person, or castrate any other person, or cut ofif maim, or disfigure any of the privy members of any other person, with intent to kill, maim, disfigure, disable or render impotent such person; the person so offending shall be imprisoned in the county jail or penitentiary not less than six months nor more than ten years, and faned, in the discretion of the court. State V. Irwin, 1 Hay., 113; State v. Evans, 1 Hay., 281; State v. Orman, 1 D. & B., 119; State v. Martin, 3 Dev., 329; State v. Girken, 1 Ircd., 121:' State v. Green, 7 Ired., 39: State v. Miller, 75—73; State v. Skidmore, 87—509. Sec 1001. Cattle and live stock, mismarking, a misde- meanor. K. C, c. 34, s. 57. 1797, c. 485, s. 2. If any person shall knowingly alter or deface the mark or brand of any other person's horse, mule, or ass, neat cattle, sheep, goat, or hog. or shall knowingly mis- mark or brand any such beast that may be unbranded or unmarked, not properly his own, with intent to defraud any other person, the person so offending shall be guilty of a misdemeanor, and punished as if convicted of lar- ceny. Stale V. Goode, 1 Hawks, 463; State v. Collins, 3 Dev., 117; State v. Da. vis, 2 Ircd., 153; State v. O'Neal, 7 Ired., 251; State v. Allen, 73—114; State V. KiuL', 84-737. Sec. 1002. Cattle and live stock, the wilful killing or in- juring of, running at large in the range. R. C, c. 34, .s. 104. 1850, c. 94, ss. 1, 2. If any person shall unlawfully and on purpose kill, 18 410 CRIMES AND PUNISHMENTS. [Chap. 25. maim, or injure any live stock, lawfully running at large in the i-ange, or in the field or pasture of the owner, whether done with the actual intent to injure the owner, or to drive the stock from the range, or any other un- lawful intent, every such person, his counselors, aiders, and abettors, shaU be guilty of a misdemeanor: Pro- vided, i\iai nothing herein contained shall prohibit any person from di-iving out of the range any stock unlaw- fully brought from other states or places. State V. Waters, 6 Jon., 276; St.itc v. Butler, 65—309; State v. Manuel, 72—201 ; State v. Simpson, 73—269; State v. HIU. 79—656; State v. Pol- lard, 83—597. Sec. 1 003. Cattle and live stock, injury to, in unlawful in- closurc. 1868-'0, c. 253. If any person shall wilfully and unlawfully kill or abase any horse, mule, hog, sheep or other cattle, the property of another, in any inclosure not surrounded by a lawful fence, such person shall be guilty of a misde- meanor, and fined or imprisoned at the discretion of the court: Provided, that this section shall not apply to any county or territory where the stock law prevails. State V. Staton, 66—640; State v. Allen, C9— 23; State v. Painter, 70— 70; State v. Manuel, 72—201; Slate v. Simpson, 73—269, Slate v. Hill, 79-656; State v. Parker, 81—531, 548; State v. WLitaker, 85—566. Sec. 1004. Concealing- birth of child. K. C, c. 34, s. 28. 1818, c. 985. 1883, c. .390. 21 Jac. 1, c 27. 43 Geo. Ill, c. 58, s. 3. 9 Geo. IV, c. 31, s. 14. If any woman or other person shall by secretly bury- ing or otherwise disposing of the dead body of a new born child of such woman, or any other woman, or en- deavors to conceal the birth of such child, such person shall be guilty of a misdemeanor, and punished by fine or imprisonment, or both, such imprisonment to be in the county jail or penitentiary, at the discretion of the couit: Provided, that the imprisonment in the peniten- tiary shall in no case exceed a term of ten years: Pro- vided further, that nothing in this section shall be con- strued to ])revent the mother, who may be guilty of the homicide of her child, from being prosecuted and pun- ished for the same accoiding to the principles of the common law. And any person aiding, counseling or abetting any woman in concealing the birth of her child, shall be guilty of a misdemeanor. State V. Jeffreys, SMur., 480; State v. Joiner, 4 Hawks, 350, I Chap. 25.] CRIMES AND PUNISHMENTS. 411 Sec. 1005. Concealed weapons, the carrying of unlaw- fully, a misdemeanor. 1879, c. 137. 1883, c. 81. If any one, except when on his own premises, shall cany concealed about his person any pistol, bovvie knife, dirk, dagger, slungshot, loaded cane, brass, iron or me- tallic knuckles or razor or other deadly weapon of like kind, he shall be guilty of a misdemeanor, and fined or imprisoned at the discretion of the coui-t. And if any one, not being on his own lands, shall have about his per- son any such deadly weapon, such possession shall be prima facie evidence of the concealment thereof. This section shall not apply to the following persons: officers and soldiers of the United States army, civil officers of the United States while in the discharge of their official duties, officers and soldiers of the militia and the state guard when called into actual service, officers of the state, or of any county, city or town, charged with the execu- tion of the laws of the state, when acting in the dis- charge of their official duties. State V. Wilson, 84—777; State v. Woodfin, 85—598; State v. Speller 86— G97; Slate v. Roten, 86—701; State v. Woodfln, 87—536; State v. GU- bert, 87—527. Sec. 1006. Cotton, sale of, within certain hours prohib- ited. 1873-'4, c. G2. 1874-'5, c. 70. If any person shall buy, sell, deliver or receive, for a price, or for any reward whatever, any cotton in the seed, or any unpacked lint cotton, brought or carried in a basket, hamper or sheet, or in any mode where the quantity is less than what is usually baled, or where the cotton is not baled, between the hours of sunset and sun- rise, such person so offending shall be guilty of a misde- meanor. Sec. 1007. Cotton, weighing of, regulated. 1874-'5, c. 58, .ss. 1, 3. If any weigher or purchaser of cotton shall make any deduction from the weight of any bag. bale or package of lint cotton, for or on account of the draft, turn or break of the scales, steelyards, or other implement used in weighing the same, or for any other cause except as herein allowed, the person so offending shall be guilty of a misdemeanor, and fined three hundred dollars or im- prisoned, in the discretion of the court: Provided, that the weigher may make such pi-oper deduction as shall be agreed on by him, and the seller, or his agent, for water, 412 CEIMES AND PUNISHMENTS. [Chap. 25. dirt or other foreign substance, in or on such bag, bale, or package of cotton, or for other just cause. Sec. 1008. Cotton weiglier's oath, the failure of the weigher to make, subscribe, and file with the register of deeds, a misdemeanor. 1874-'5, c. 58, s. 2. Every public weigher of cotton shall, before entering on the duties of his office, make and subscribe the oath prescribed for cotton weighers, which, when made, shall be filed in the office of the register of deeds for the county in which the person acts as weigher, and said register shall make a note of the same, and any person acting as weigher without making and filing the oath, shall be guilty of a misdemeanor, and shall be fined twenty-five dollars for every bag, bale, or package of cotton wliich he shall have unlawfully weighed before being qualified to do so. Sec. 1009. County claims, speculation in, indictable. 1868-'9, c. 260. If any clerk, sheriff, register of deeds, county treas- urer, or other county, city, town or state officer shall en- gage in the purchasing of any county, citv, town or state claim at a less price than its full and true value, or at any rate of discount thereon, or be interested in any speculation in any such claims, he shall be guilty of a misdemeanor, and fined or imprisoned, and also shall be liable to removal from office at the discretion of the court. Sec. lOlO. Crime against nature. K. C, c. 34, s. C. 1868- '9, c. 167, s. 6. 23 Hen. VIII, c. 6. 5 Eliz., c. 17. If any person shall commit the abominable and detest- able crime against nature, with mankind or beast, he shall be imprisoned in the penitentiary not less than five nor more than sixty years. State V. King, 09—419. Sec. 1011. Directors, commissioners and other public officers forbidden to become contractors. B. C. c. 34 s. 38. 1825, c. 1269. 1826, c. 29. No person, appointed or elected a commissioner or di- rector to discliarge any trust wherein the state or any county, city, or town may be in any manner interested, shall become an undertaker, or make any contract for his own benefit, under such authority, or be in any man- ner concerned or interested in making such contract, or Chap. 25.] CEIMES AND PUNISHMENTS. 413 in the profits thereof, either privately or openly, singly or jointly with another; and any person so offending shall be guilty of a misdemeanor. Sec. 1012. Dueling, sending, accepting or bearing a chal- lenge, a misdemeanor. K. C, c. 34, s. 48. 1802, c. 608, s. 1. If any person shall send, accept or bear a challenge to fight a duel, though no death ensue, he, and all such as counsel, aid and abet him, shall be guilty of a misde- meanor, and moreover, be ineligible to any office of trust, honor or pi'ofit in the state, any pardon or reprieve not- withstanding. State V. Fairier, 1 Hawks, 487. Sec. 1013. Dueling, when death ensues, murder. B. C, c. 34, s. 3. 1802, c. 608, s. 2. If any person fight a duel in consequence of a challenge sent or received, and either of the parties shall be killed, then the survivor, on conviction thereof, shall suffer death; and all their aiders or abettors shaU be considered accessories before the fact. Sec. 1014. Embezzlement punished as larceny. 1871-'2, c. 145, s. 2. 21 Hen. VII, c. 7. 39 Geo. Ill, c. 85. 7 and 8 Geo. IV, c. 39, s. 47. 24 and, 25 Vict., c. 96, s. 68. If any officer, agent, clerk, employee or servant of any corporation, person or copartnership, (except apprentices and other persons imder the age of sixteen years,) shaU embezzle or fraudulently convert to his own use, or shall take, make way with or secrete, with intent to embezzle or fraudulently convert to his own use any money, goods or other chattels, bank note, check or order for the pay- ment of money issued by or di-awn on any bank or other corporation, or any treasury warrant, treasury note, bond or obligation for the payment of money issued by the United States or by any state, or any other valuable security whatsoever belonging to any other person or corporation, which shall have come into his posession or under his care, he shall be guilty of felony, and punished as in cases of larceny. Sec. 1015. Embezzlement ofstate bonds or other property of the state, by state officers or employees. 1874-'5, c. 52, If any officer, agent or employee of the state, or other 414 CRIMES AND PUNISHMENTS. [Chap. 25. person having or holding in trust for the same any bonds issued by said state, or any security, or other property and effects of the same, shall embezzle or knowingly and wilfully misapply or convert the same to his own use, or otherwise wilfully or corruptly abuse the said trust, such offender and all persons aiding and abetting, or otherwise assisting therein, shall be guilty of felony, and fined not less than ten thousand dollars, or imprisoned in the pen- itentiary not less than twenty years, or both, at the dis- cretion of the court. Sec. 1016. Embezzlement of trust funds by public officers, felony. 187G-'7, c. 47. If any officer, agent, or employee of any city, county, er incorporated town, or of any penal, charitable, relig- ious or educational institution; or if any person having or holding any moneys or property in trust for any city, county, incorporated town, penal, charitable, i-eligfous or educational institution, shall embezzle or otherwise wil- fully and cori'uptlyuse or misapply the ?ame for any pur- pose other than that for which such moneys or property is held, such person shall be guilty of felony, and fined and imprisoned in the discretion of the court. State V. Heaton, 81—542. Sec. 1017. Embezzlement by treasurer of benevolent or religious institution, a misdemeanor. 1879, c. 105. If any treasurer or other financial officer of any benev- olent or religious institution, society or congregation shall lend any of the moneys coming into his hands to any other person or association without the consent of the in- stitution, association or congregation, to whom such moneys belong ; or, if he shall fail to account for such moneys when called on, he shall be guilty of a misde- meanor, and punished by fine or imprisonment, or both, in the discretion of the court. Sec. 1018. Embezzlement by officer of railroad company, felony. 1870-'l, c. 103. s. 1. If any president, secretary, treasurer, director, engi- neer, agent or other officer of any railroad company, shall embezzle any moneys, bonds, or other valuable funds, or securities, with which such pi-esident, seci'etary, treas- urer, director, engineer, a^ent, or other officer, shall be charged by virtue of his office, or agency, or shall in any way. diiectly or indirectly, apply or appropriate the same, for the use or benefit of himself, or anj' other person, Chap. 25.] CRIMES AND PUNISHMENTS. 415 state, or corporation, other than the company of which he is president, secretary, treasurer, director, engineer, agent, or other officer, for every such offence the person so of- fending shall be guilty of felony, and on conviction in the superior or criminal court of any county through wnich Ihe railroad of such company shali pass, shall be imprisoned in the penitentiary, not less than three, nor more than ten years, and fined not less than one thousand, nor more than ten thousand dollars. State V. Jackson, 83—565. Sec. 1019. Embezzlement, conspiracy witli officer of rail- road. 1870-'l, c. 103, s. 2. If any person shall agree, combine, collude, or conspire with the president, secretary, treasurer, director, engi- neer or agent of any railroad company, to commit any offence specified in the preceding section, such person so offending shall be guilty of felony, and on conviction in the superior or criminal court of a county through which the railroad of any company against which such offence may be perpetrated passes, shall be imprisoned in the penitentiary for not less than three, nor more than ten years, and fined not less than one thousand, nor more than ten thousand dollars. State V. Jackson, 83 — 5C5. Sec. 1020. Embezzlement, sufficiency of indictment for. 1871-'2, c. 145, s. 2. In indictments for embezzlement, except when the offence shall relate to a chattel, it shall be sufficient to allege the embezzlement to be of money, without specify- ing any particular coin or valuable security ; and such allegation, so far as regards the description of the pro- perty, shall be sustained if the offender shall be proved to have embezzled any amount, although the particular species of coin or valuable security of which such amount was composed shall not be proved Sec. 1021. Escape, prison-breacli by criminal. K. C, c. .34, s. 19. 1 Edw. II., St. 2d. Any person who shall break prison, being lawfully confined therein, shall be guilty of a misdemeanor. State V. Brown, 83—585. Sec. 1022. Escape, officer indictable for, what necessary for state to prove. R. C, c. 34, s. 35. 1791, c. 343, s. 1. When any person chai-ged with a crime or misde- ii6 CEIMES AND PUNISHMENTS. [Chap. 25. meaner, or sentenced by the court upon conviction of any offence, shall be legally committed to any sheriff, con- stable or jailer, or shall be ari'ested by any sheriff,deputy sheriff or coroner acting as sheriff, by virtue of any capias issuing on a bill of indictment, information, or other criminal proceeding, and such sheriff, deputy sheriff coroner, constable or jailer, wilfully or negligently, shall suffer such person, so charged, or sentenced and com- mitted, to escape out of his custody, the sheriff, deputy sheriff coroner, constable or jailer so offending, being thereof convicted, shall be removed from office, and fined at the discretion of the court before whom the trial miy be had; and in all such cases it shaU be sufficient, in sup- port ot the indictment against such sheriff or other officer to prove that such person so charged or sentenced was committed to his custody, and it shall lie upon the defend- ant to show that such escape was not by his consent or negligence, but that he had used all legal means to pre- vent the same, and acted with proper care and diligence- Frovided, that such removal of a sheriff shall not affect his duty or power as a collector of the public revenue, but he shall proceed on such duty and be accountable, as if such conviction and removal had not been had. State V. Garrel], 83—580. Sec. 1023. Escape, duty of solicitor in such a case. R C c. 34, s. 36. 1791, c. 343, s. 2. ' It is hereby declared to be the duty of sohcitors, when they shall be informed or have knowledge of any fe'on or person otherwise charged with any crime or offence against the state, having within their respective distric's escaped out of the custody of any sheriff, deputy sheriff coroner, constable or jailer, to take the necessary meas- ures to prosecute such sheriff, or other officer so of- fending. Sec. 1024. False lights, holding out, on or near seashore R. C, c. 34, s. 58. 1831, c. 42. Any person who shall make or display, or cause to be made or displayed any false light or beacon, on or near the sea-coast, for the purpose of deceiving and misleading masters of vessels, and thereby put them in danger of shipwreck, shall be guilty of a felony, and imprisoned in the penitentiary for not less than four months nor more than ten years. Chap. 25.] CEIMES AND PUNISHMENTS. 41Y Sec. 1035. False pretence and false token, cheating by. B. C, c. 34, s. 67. 1811, c. 814, s. 3. 24, 25 Vict., c. 96, s. 88. 33 Hen. VIII, c. 1, ss. 1, 2. 30 Geo. II, c. 34, s. 1. 52 Geo. Ill, c. 64, s. 1. 7 and 8 Geo. IV, c. 29, s. 53. If any person shall knowingly and designedly, by means of any forged or counterfeited paper, in writing or in print, or by any false token, or other false pretence whatsoever, obtain from any person or corporation within the state any money, goods, property, or other thing of value, or any bank-note, check, or order for the payment of money, issued by. or drawn on, any bank or other society or corporation within this state or any of the United States, or on any treasury warrant, debenture, certificate of stock, or public security, or any ordei-, bill of exchange, bond, promissory note, or other obligation, either for the payment of money or for the delivery of specific articles, with intent to cheat or defraud any per- son or corporation of the same, such person shall be guilty of a misdemeanor for fraud and deceit, and im- prisoned in the penitentiary not less than four months nor more than ten years, and fined, in the discretion of the court. Provided, that if, on trial of any one indicted for such misdemeanor, it shall be proved that he obtained the property in such manner as to amount to larceny, he shall not, by reason thereof, be entitled to be acquitted of the misdemeanor; and no person tried for such misde- meanor shall be Uable to be afterwards prosecuted for larceny upon the same facts: Provided further, that it shall be sufficient in any indictment for obtaining or attempting to obtain any such property by false pretences, to allege that the party accused did the act with in- tent to defraud, without alleging an intent to defraud any particular person, and without alleging any owner- ship of the chattel, money or valuable security; and, on the trial of any such indictment, it shall not be necessary to prove an intent to defraud any particular person, but it shall be sufficient to prove that the party accused did the act charged with an intent to defraud. State V. Simpson, 3 Hawks, 620; State v. PatiUo, 4 Hawks, 348; State V. Justice, 3 Dev., 199; State v. Burrows, 11 Ired., 477; State v. Phifer, 65— 320; State V. Jones, 65 — 395; State v. Jones, 70 — 75; State v. Jolinson, 75 —123; State v. Fitzgerald, 1 D. & B., 408; State v. Gillespie, 80—396; State V. Reese, 83—637; State v. Allred, 84—749; State v. Heffner, 84- 751; State v. Eason, 86—674; State v. Wilbourne, 87—529. 418 CRIMES AND PUNISHMENTS. [Chap. 25. Sec. 102G. False pretence, obtaining signature by. 1871- '2, c. 92. Every person who, with intent to defraud or cheat an- other, shall designedly, by color of any false token or writing, or by any other false pretence, obtain the signa- ture of any person or persons to any written instrument the false making of which would be punishable as forg- ery, or obtain from any person or persons any money goods, wares, merchandise or other property or valuable thmg whatsoever, shall be punishable by 'fine not less than one hundred dollars nor more than one thousand dollars, or by imprisonment in the penitentiary for a term not less than one year nor more than five years or both, at the discretion of the court. State V. Phifer, 65—321; State v. Jones, 70—75; State v. Young. 76—258; State V, Pickett, 78—459; State v. Mauclay, 78—460; State v. Austin, 79— 631; State v. Lambreth, 80—393; State v. Gillespie, 80—396; State v. Holmes. 83-607; State v. Reese, 83-637; State v. Allred, 84—749; State V. Heffner, 84^751 ; State v. Eason, 86—674. Sec. 1027. False pretence; obtaining advances upon rep- resentation of ownership of property, and promising to apply the same to payment of the debt, and failing to do so. 1879, cs. 185, 18G. If any person shall obtain any advances in money, pro visions, goods, wares or merchandise of any description, from any other person or corporation, upon any written representation that the person making the same is the owner of any article of produce, or of any other specific chattel, or personal property, which said property, or the proceeds of which, the said owner in said representation thereby agrees to apply to the discharge of the debt so created as aforesaid, and the said owner shall fail to ap- ply said produce or other property, or the proceeds there- of, in accordance with said agreement, or shall dispose of the same in any other manner than is so agreed upon by the parties to the transaction, the person so oflfending shall be guilty of a misdemeanor, whether he shall or shall not have been the owner of anv such property at the time such representation was made. This offence shall be punishable as in the preceding section. Sec. 1028. Forcible entry and detainer. B. C, c. 49, s. 1. 5 Rich. II., c. 8. No one shall make entry into any lands and tenements, or term for years, but in case where entry is given by law; and in such case, not with strong hand nor with I Chap. 25.] CRIMES AND PUNISHMENTS. 419 multitude of people, but onlj' in a peaceable and easy- manner; and if any man do tbe contrary, be shall be guilty of a misdemeanor. State V. Fort&Gause, 4 D. &B., 192; State v. Smith, 3 Ired., 137; Slate V. Prigdcn, 8 Ired., 84; Statev. Whitfield, 8 Ired., 315; Jordan v. Rouse, 1 Jon., 119; State v. Bordeaux, 341; State v. Easoii, 70—88; State v. Yar- borough, 70—350; R. R. Co. v. Johnston, 70—348; R. R. v. Sharpp, 70— 509; Perry V. Sheplierd, 78— 83 ; Statev. Shepard, 83—614; State v. Loney. 87—535. ' Sec. 1029. Forgery, how punished. R. C, c. 34, s. 59. 1801, c. 572. 5 Eliz., c. 14, ss. 3, 3, &c. 21Jac. 1, c. 26 (A. D, 1623). If any person, of his own head and imagination, or by false conspiracy or fraud with others, shall wittingly and falsely foi-ge and make, or shall cause or wittingly assent to be forged or made, or sliall show forth in evidence, knowing the same to be forged, any deed, lease or will, or any bond, writing obligatory, bill of exchange, prom- issory note, endorsement or assignment thereof; or any acquittance, or receipt for money or goods; or any re- ceipt, or release for any bond, note, bill, or any other se- curity for the payment of money; or any order for the paynient of money or delivery of goods, with intent, in any of said instances, to defraud any person or corpora- tion, and thereof shall be duly convicted, the person so offending shaU be punished by imprisonment in the peni- tentiary or county jail not less than four months nor more than ten years, and fined, in the discretion of the court. State V. DaltOQ, 1 Hawljs 3; State v. Danrden, 2 Dev., 443; State v. Britt., 8Dev., 133; Statev. Morgan, 3D. &B., 348; State v. Batemon, 3 Ired., 474; State v. Thornburg, 6 Ired., 79; Slate v. Gherliin, 7Ircd., 306; Statev. Weaver, 13 Ired., 491; Stale v. Lytle, 64— 355; State v. Lamb, 65—419; Statev. Thorn, 66—644; Statev. Leals, 80—403; State v. Lane. 80—407; State V. Hastings, 86—596; State v. Williams, 86—671. Sec. 1030. Forgery and counterfeiting bank-notes, checks and other securities. R. C, c. 34 s. 60. 1819, c. 994, s. 1. If any person shall falsely make, forge or counterfeit, or cause or procure the same to be done, or willingly aid or assist theiein, any bill or note in imitation of, or pur- porting to be, a bill or note of any incorporated bank in this state, or in any of the United States, or in any of the territories of the United States; or any order or check on any such bank or corporation, or on the cashier there- 420 CRIMES AND PUNISHMENTS. [Chap. 25. of; or any of the securities purporting to be issued by or on behalf of the state, or by or on behalf of any corpora- tion, with intent to injui-e or defraud any person, bank or corporation, or tlie state, the person so offending shall be guilty of felony, and punished in like manner as if he had been convicted under the preceding section. State V. Twilty, 3 Hawks, 248; State v. Ward, 3 Hawks, 443; State v. Peter, 8 Jon., 19; Stale v. Tom, Busb., 214 Sec. 1031. Forgery and counterfeiting, passing, or at- tempting to pass, notes forged or counterfeited. R. C, c. 34, s. 61. 1819, c. 994, s. 2. If any person, directly or indirectly, whether for the sake of gain or with intent to defraud or injure any other person, shall utter or publish any such false, forged or counterfeited bill, note, order, check, or security, as is men- tioned in the preceding section; or shall pass, or dehver, or attempt to pass, or deliver any of them to another per- son, (knowing the same to be falsely forged or counter- feited), the person so offending shall be punished by im- prisonment in the county jail or penitentiary, not less than four months nor more than ten years. State V. Harris, 5Ired., 387. Sec. 1033. Forgery and counterfeiting of certificates of stock by officer or agent of a corporation. R. C, c. 34, s. 63. If any officer or agent of a corporation shall, falselv and with a fraudulent purpose, make with the intent that the same shall be issued and delivered to any other person by name or as holder or bearer tliereof, any certi- ficate or other writing, whereby it is certified or declared that such person, or holder, or bearer, is entitled to or has interest in the stock of such corporation, when in fact such person, or holder, or bearer, is not so entitled, or is not entitled to the amount of stock in such certifi- cate or writing specified; or if any officer or agent of such corporation, or other person, knowing such certifi- cate or other writing to be false or untrue,' shall transfer, assign, or deliver the same to another person, for the sake of gain, or with the intent to defraud the corpora- tion, or any member thereof, or such person to whom the same shall be transferred, assigned or delivered, the per- son so offending shall suffer the same punishment as is prescribed in the preceding section. Chap. 25.] CRIMES AND PUNISHMENTS. 421 Sec. 1033. Forgery and counterfeiting, selling forged judgments, bonds or other securities. K. C, c. 34, s. 63. If any person shall sell, by delivery, indorsement, or otherwise, to any other person, any judgment for the re- covery of money purporting to have been rendered by a justice of the peace, or any bond, promissory note, bill of exchange, order, draft, or liquidated account purporting to be signed by the debtor (knowing the same to _ be forged), the person so offending shall be punished by im- prisonment in the penitentiary or county jail, for not less than four months nor more than ten years. State V. Davis, 84—787; State v. Collias, 85—511. Sec. 1034. Forgery of names to petitions and certain otlier papers; punishment therefor and for using such forged paper. 1883, c. 275. Any person who shall wilfully sign, or cause to be signed, or wilfully assents to the signing of the name of any person without his consent, or of any deceased or fictitious person to any petition or recommendation with the intent of procuring any commutation of sentence, pardon, or reprieve of any person convicted of any crime or offence, or for the purpose of procuring such pardon, reprieve or commutation, to be refused or delayed by any public officer, or with the intent of procuring from any person whatsoever, either for himself or another, any ap- pointment to oflSce, or to any position of honor or trust, or with the intent to influence the official action of any public officer in the management, conduct or decision of any matter affecting the pubhc, shall be guilty of a mis- demeanor, and fined not exceeding one thousand dollars, or imprisoned in the county jail or penitentiary not ex- ceeding five years, or both, at the discretion of the judge; and any person who shall wilfully use any such paper for any of the purposes or intents above recited, knowing ■ that any part of the signatures to such petition or recom- mendation has been signed thereto without the consent of the alleged signers, or that names of any dead or fic- tictious persons are signed thereto, shall be guilty of a misdemeanor, and punished in Hke manner and degree. Sec. 1035. Forgery and counterfeiting of foreign coin, passing or attempting to pass such coin. R. C, c. 34, s. 64. 1811,c. 814, s. 3. If any person shall falsely make, forge, or counterfeit, or cause or procure to be falsely made, forged, or coun- 422 CRIMES AND PUNISHMENTS. [Chap. 25. terfeited, or willingly aid or assist in falsely making, forging, or counterfeiting the resemblance or similitude or likeness of a Spanish nnlled dollar, or any foreign coin of gold or silver, which is in common use and received in the discharge of contracts by the citizens of the state; or shall pass, utter, publish, or sell, or attempt to pass, utter, publish, or sell, or bring into the state from any other place, with intent to pass, utter, publish, or sell as true, any such false, forged,or counterfeited coin, knowing the same to be false, forged, or counterfeited, with intent to defraud any corporation, or any person whatsoever, every person so offending shall be guilty of a misde- meanor, and punished by imprisonment in the peniten- tiary or county jail, for not less than four months nor more than ten years. Sec. 1036. Forgery and counterfeiting, liaving- in posses- sion instruments for counterfeiting foreign coin. R. C, c. 34, s. 05. 1811, c. 814, s, 4. If any person shall have in his possession any instru- ment for the purpose of making any counterfeit simili- tude or likeness of a Spanish milled dollar, or other for eign coin made of gold or silver, which is in common use and received in discharge of contracts by the citizens of the state, and shall be duly convicted thereof, the person so offending shall suffer as prescribed in the preceding section, and shall be further liable to be fined, at the dis- cretion of the court, not more than five hundred dollars, and be imprisoned not more than twelve months. State V. Collius, 3 Hawks, 191. Sec. 1037. Forgery and counterfeiting, fraudulently con- necting different parts of several genuine bank notes, or otber instruments. K. C, c. 34, s. 66. If any person shall fraudulently connect together dif- ferent parts of two or more bank notes, or other genuine instruments, in such a manner as to produce another note or instrumeuc. with intent to pass all of them as genu- ine, the same shall be deemed a forgery, and the instru- ment so produced a forged note, or forged instrument, in like manner as if each of them had been falsely made or foi'ged. Sec. 1038. Forgery and counterfeiting of private marks, stamps or labels. 1870-'l, c. 353. s. 1. Every person who shall knowingly and wilfully forge, or counterfeit or cause or procure to be forged or counter- Chap. 25.] CRIMES AND PUNISHMENTS. 423 feited, the private marks, tokens, stamps or labels of auy mechanic, manufacturer or other person bemg a resident of this state or of the United States, with intent to de- ceive and defraud the purchasers, mechanics or manu- facturers of any goods, wares or merchandise whatso- ever, upon conviction thereof shall be punished by a hne of not less than fifty dollars and not exceeding one thou- sand dollars, or by imprisonment of not less than thirty days or more than five years, or both fine and imprison- ment, at the discretion of the court. Sec. 1030. Forgery and counterfeiting, penalty for selling merchandise with forged or counterfeited marks, stamps or labels. 1870-'l, c. 253, s. 2. Every person who shall vend any goods, wares or mer- chandise having thereon any forged or counterfeited marks, tokens, stamps or labels purportmg to be the marks, tokens, stamps or labels of any person bemg a resident of the state or of the United States, knowing the same at the time of the purchase thereof by him to be forged or counterfeited, shall be guilty of a misde- meanor, and punished by imprisonment in the county iail not exceeding six months, or by a fine not exceeding one hundred dollars, or by both fine and imprisonment, at the discretion of the court. Sec. 1040. Forgery and counterfeiting, fraudulent use of brands. 1874-'5, c. 225. If any person shall knowingly use the mark or brand of any other person on any sack, or shall knowingly im- press on any sack the mark or brand of another person, with intent to defraud or for the purpose of enhancmg the value of his own property, the person so offending shall be guilty of a misdemeanor, and punished as if con- victed of larceny. Sec. 1041. Fornication and adultery. K. C, c. 34, s. 45. 1805, c. 084. If any man and woman, not being married to each other shall lewdly and lasciviously associate, bed and cohabit together, they shall be guilty of a misdemeanor : Provided, that the admissions or confessions of one shaU not be received in evidence against the other. Slate V Cox N. C. T. R.. 105; Stale v. Aldridge, 3 Dev., 331; State v. Dickenson, 1 D. & B., 349; State v. Jolly, 3 D. & B., 110; Stale v. Fore, 1 Ired 378; Slate v. Waters, 3 Ired,, 455; State v. Cowell, 4 Ired., 231, State v Hooper, 5 Ired., 201; State v. Mainor. 6 Ired., 340; State v. Poteet; 42i CRIMES AND PUNISHMENTS. [Chap.- 25. 8 Ired., 23; State v. Parham, 5 Jon., 41G; State v. Lyeily, 7 Jon., 158- State V. Mdtou, Busb., 49; State v. Sclilach ter, Pliil., 520; Slate v. Hairston 63—451; State V. Reiubaidt. G3— 547; State v. Custer. 05—330; State v.' Adams, 65— 537; State v. Vermington, 71—204; State v. Perry ' 71— 523'. State V. Folly, 74-333; State v. Phipps, 70-203; Slate v. Ross', 76-342" Slate V. Kennedy, 70—251; State v. Ballard, 79—027; State v. Waller' 80—401 ; State v. Lashley, 84—754; State v. Kemp, 87—538. Sec. 1042. Gambling, betting at cards in tavern or retail bouse, a misdemeanor. R. C, c. 34, s. 75 1799 c 626. 1801, c. 581, 1831, c. 26. If any person shall bet money, property, or other thing of value, whether the same be in stake or not. at any game of cards which shall be played in any ordinary tavern, or house of entertainment, or in any house wherein spirituous liquors are retailed, or on any part of the premises occupied with such ordinary, tavern, house of entertainment, or house wherein spirituous liquors are sold as aforesaid, or shall play at such game of cards- the person so offending shall be guiltv of a misdemeanor' and any fine imposed shall Jiot be less than ten dollars. ' State V. Terry, 4 D. & B., 185; State v. Smitlaerman, 1 Ired., 14; State V. Black, 9 Ired., 378; State v. Keisler, 6 Jon., 73; State v' Br'annen 8 Jon.. 208. Sec. 1043. Gambling, keeper of tavern or liquor sbop, al- lowing- games to be played in bis house, guilty of a mis- demeanor. R. C, c. 34, s. 76. 1799, c. 526. 1801 c. 581. 1831, c. 26. If any keeper of an ordinary, or house of entertain- ment, or of a house wherein liquors are retailed, shall knowingly suffer any game, at which money or property or anything of value, is bet, whether the same be in stake or not, to be played in any such house, or on any part of the premises occupied therewith; or shall furnish persons so playing or betting with drink or other thing for their comfort or subsistence during the time of play, he shall be guilty of a misdemeanor, and fined not less than ten dollars, and be imprisoned not more than thu-ty days. State V. Keisler, 6 Jon., 73. Sec. 1044. Gambling, faro-banks and tables prohibited. R. C, c. 34, s. 71. 1848. c. 34. 1856-'7, c. 25. If any person shall open, establish, use, or keep a faro- bank or a faro-table, with the intent that games of chance may be played thereat, or shall play or bet thereat any money, property, or thing of value, whether the same be m stake or not, be shall be guilty of a misdemeanor and Chap. 25.] CRIMES AND PUNISHMENTS. 425 fined at least two hundred dollars and imprisoned not less than three months. State V. Keislcr, 6 Jon., 73; State v. Brannen, 8 Jon., 208; State v. Bryant, 74—307. Sec. 1045, Gambling, gaming tables of every kind pro liibited. R. C, c. 34, s. 73. 1791, c. 336. 1798, c. 502, s. 2. If any person shall establish, use or keep any gammg- table (other than a faro-bank) by whatever name such table may be called, at which games of chance shall be played, he shaU on conviction thereof be fined not less than two hundred dollars, and be imprisoned not less than thirty days; and every person who shall play there- at or thereat bet any money, property or thing of value, whether the same be in stake or not, shall be guilty of a misdemeanor, and any fine imposed on the offender shall not be less than ten dollars. State V. Bishop, 8 Ired., 266; State v. Gupton, 8 Ired., 271; State v. Bryant, 74—207. Sec. 1046. Gambling, person allowing gaming-tables on his premises indictable. K. C, c. 34, s. 73. 1798, c. 502, s. 3. 1800, c. 552. If any person shall knowingly suffer to be opened, kept or used in his house or any part of the premises occupied therewith, any of the gaming-tables by this chapter prohibited, he shall forfeit and pay to any one who will sue therefor two hundred dollars, and shall also be guilty of a misdemeanor and fined and imprisoned. State V. Keisler, 6 Jon., 73. Sec. 1047. Gambling, lotteries forbidden. R. C, c. 34, s. 69. 1834, c. 19, s. 1. 1874-'5, c. 96. If any person shall open, set on foot, carry on, promote, make or draw, publicly or privately, a lottery, by what- ever name, stvle or title the same may be denominated or known ; or if" any person, by such way and means, ex- pose or set to sale any house or houses, real estate, or any goods or chattels, cash, or written evidence of debt, or certificates of claims, or anything of value whatsoever; every person so offending shall be guilty of a mis- demeanor, and be fined not exceeding two thousand dollars, or imprisoned not exceeding six months, or both, in the discretion of the court. Anypeison or society, association, company or organization of personswhat- soever, who engage in disposing of any species of 426 CRIMES AND PUNISHMENTS. [Chap. 25. property whatsoever, money or evidences of debt, or in any manner distribute gifts or prizes upon tickets or certificates sold for that purpose, shall be held liable to indictment and prosecution under this section. Slate V. Krebs, 64—604; State v. Bryant, 74—207; State v. Morris 77—513. Sec. 1048. Gambling, sale of lottery tickets forbidden. K. C, c, 34, s. 70. 1834, c. 19, s. 2. If any person shall sell, barter or dispose of any lottery ticket or order, for any number or shares in any lottery, or shall in anywise be concerned in such lottery, by act- ing as agent in the state for or on behalf of any such lottery, to be drawn or paid either out of or within the state, such person shall be guilty of a misdemeanor, and punished as in the preceding section. Sec. 1049. Gambling, justices of the peace and otlier offi- cers directed to destroy gaming tables. It. C, c. 34, s 74, 1791, c. 330. 1798, c. 502, s. 2. All justices of the peace, sheriffs, constables, and offi- cers of police are hereby authorized and directed, on in- formation made to them on oath, that any gaming talile prohibited to be used by this chapter, is in the posses- sion or use of any person within the hmits of their ju- risdiction, to destroy the same by every means in their power; and they shall call to their aid all tlie good citi- zens of the county, if necessary, to effect their destruc- tion. Sec. 1050. Gambling, justices and otlier judicial officers authorized to summon witnesses touching the where- abouts of gaming tables. 1858-'9, c, 34, s. 1. All justices of the peace, intendants and magistrates of police, mayors of towns, and judges of the supreme or superior court, who shall have good reason to behevethat any person within their jurisdictions has knowledge of the existence and establishment of any faro-bank or faro- table, or gambling tables, ))rohibited by this chapter, in any town or county within their seveial jurisdictions, and such person not being minded to make voluntary informa- tion thereof on oath, then it shall be lawful for such jus- tice of the peace, intendant and magistrate of police, mayor of town, or judge of supreme or superior court, to issue to the sheriff of the county, or any constable of the town or township in which said faro-bank or faro- table, or gaming table or tables are supposed to be, a subpoena Chap. 25.] CRIMES AND PUNISHMENTS. 427 capias ad testificandum, or summons in writing, corn- manding such person to appear immediately before said ju4ice of the peace, intendant or magistrate of police, mayor or judge, and give evidence on oath as to what he may know touching the existence, establishment and whereabouts of said gaming table or tables, faro-bank or faro-table, and the names and personal description of the keepers thereof; and such evidence when obtained shall be considered and held in law as an information on oath, and said justice, intendant, magistrate, mayor or judge, may thereupon proceed to seize and arrest said keepers and destroy said tables, or issue process therefor, in like manner as they may do by authority of the preceding section. Sec. 1051. Gambling, money or property bet at any pro- hibited game liable to be seized. K. C, c. 34, s. 77. 1798, c. 502, s. 3. All moneys, or other property or thing of value ex- hibited for the purpose of alluring persons to bet at any prohibited game, or actually staked or bet on such game, shall be hable to be seized by any justice of the peace, or by any person acting under his warrant. And the moneys or other property or thing, which shall be so seized, shall belong one-half to the person seizing them, and the other half to the use of the poor. Sec. 1052. Gambling, persons opposing destruction of gaming tables or seizure of moneys staked on forbid- den games, bow punisbed. K. C, c. 34, s. 78. 1798, c. 502, s. 4. If any person shall oppose the destruction of any pro- hibited gaming table, or the seizure of any moneys, property, or other thing staked on forbidden games, or shall take and carry away the same or any part thereof after seizure, he shall forfeit and pay to the person so opposed one thousand dollars, for the use of the state and the person so opposed; and shall, moreover, be guilty of a misdemeanor. Sec. 1053. Ginseng, penalty for digging, between April and September. 186C-'7, e. 60. Any person digging ginseng between the first day of April and the first day of September, shall forfeit and pay the sum of ten dollars for each day or part of a day's digging, and shall also be guilty of a misdemeanor: 428 CRIMES AND PUNISHMENTS. [Chap. 25. Provided, that no man shall be prevented from destroy- mg ginseng upon his own premises. Sec. 1064. Highways and public roads, overseer of, iiee- lecting his duty. K. C, c. 34, s. 39. 1786, c. 256 s. 4. ' Every overseer of a road, who shall wilfully neglect any of the duties imposed on him by law, shall be guiltv or a misdemeanor. •' State V. Everit, 2 Car. L. R., 633; State v. Nicholson, 2 Mur 135- State V. Small. 11 Ired., 571; State v. Long, 76-254; State v. Long 81-563- State V. McDowell, 84r— 798. Sec. 1055. Homicide, manslaughtfer, punishment there- for. 1879, c. 255. K. C, c. 34, s. 24. 4 Hen VII o 13, 1816, c. 918. ' Every person who shall commit the crime of man- slaughter shall be punished by imprisonment in the county jail or penitentiary not less than four months nor more than twenty years. Sec. 1056. Homicide, manslaughter, punishment for sec- ond oflfence. K. C, c. 34, s. 25. Every person who, having been convicted of the crime of manslaughter and sentenced thereon, shall be con victed of a second crime of the like nature, shall be im- prisoned in the penitentiary not less than five nor more than sixty years; and in every such case of conviction for such second offence, the prior conviction of the same person and sentence thereon may be shown to the court. Sec. 1057. Homicide, murder, its punishment. lS68-'9 e.l67, s, 1. K. C, c. 34, s. 2. 1 Edw. VI, c. 12, s lo' 23 Hen. VIII, c. 1, s. 3. 25 Hen. VIII, c. 3. 8 Eliz ' c. 4. 18 Eliz., c. 7, s. 1. ' Every person who is convicted, in due course of law of any wilful murder of malice prepense, shall suffer death. State V. King, 64—419. Sec. 1058. Hunting for deer by fire-light. R. C. c 34 s 95. 1784, c. 212, ss. 1, 3. 1801, c. 595. 1856-'7* c' 24. 1879, c. 92. ' If any person shall hunt for deer with a gun or guns in the woods in the night-time, by fire-light, the person so offending shall be guilty of a misdemeanor, and shall Chap. 25.] CEIMES AND PUNISHMENTS. 429 pay a fine not exceeding fifty dollars, or be imprisoned not exceeding thirty days. Sec, 1050. Hunting by fire-ligbt, accomplices. K. C, c. 34, s. 96. 1774,0. 103. When more persons than one are engaged in commit- ting the offence of fire-hnnting, any one may be com- pelled to give evidence against all others concerned; and the witness, upon giving such information, shall be ac- quitted and held discharged from all penalties and pains to which he was subject by his participation iu the offence. Sec. 1060. Incest, carnal intercourse between grand par- ent and grand cbild, parent and cbild, brother and sis- ter, a felony. 1879, c. 16, s. 1. In all cases of carnal intercourse between grand par- ent and grand child, parent and child, and brother and sister, of the half or whole blood, the parties shall be guilty of felony, and punished for every such offence by imprisonment in the county jail or penitentiary for a term not exceeding five years, in the discretion of the court. State V. Keesler, 78—469. Sec. 1061. Incest, carnal intercourse between uncle and niece, nephew and aunt, a misdemeanor. 1879, c. 16, s. 2. In all cases of carnal intercourse between uncle and niece, and nephew and aunt, the parties shall be guilty of a misdemeanor, and punished by fine or imprison- ment, in the disci'etion of the court. Sec. 1062. Injuries to bouses, cburcbes and fences. R. C, c. 34, s. 103. If any person shall, by any other means than burning or attempting to burn, unlawfully and wilfully demolish, destroy, deface, injure, or damage any of the liouses oi- buildings previously mentioned in this chapter; or shall unlawfully and wilfully burn, demolish, pull down, de- stroy, deface, damage, or injure any church, uninhabited house, outhouse, or other house or building not men- tioned before in this chapter; or shall unlawfully and wilfully burn, destroy, pull down, injure, or remove any fence, wall, or other inclosure, or any part thereof sur- rounding or about any yard, garden, cultivated field or pasture, or about any church, grave-yard, factory, or 430 CRIMES AND PUNISHMENTS. [Chap. 25. other house in which machinery is used every nerson <;n ofleudiug shall be guilty of a niisdemeanor ^ ^ State V. Upchurch, 9 Ired., 454; State v. Allen, 13 Ircd 36- State v 167, Stae v. Graham, 8 Jon. , 307; State v. Williams, Bu.b., 197- State ^ Peny, 64-30o; State v. Mace, 65-344; State v. Koseman, 6G-C3rSate V Rosemaa 70-235; State v. Ilovis, 76-117; State v. M^Minu 8I-5S State V. Padgett. 82-544; State v. Midgett, 85-538; State v. Waloc 86 ^^\lSs%f^ri7!'''''''' P^'^^^y f*''- *"«""S or removing. ^l/l^^'Tr''^''" ^1^^". wilfully or fraudulently remove alterordetaceany landmark, in anywise whatsoever, such person shall be guilty of a misdemeanor: Provided, that this section shall not apply to such landmarks as creeks and other small streams, which the interest of agriculture may require to be altered or turned from their channels. Sec. 1064. Larceny or robbery of bank notes and other securities. K. C, c. 34, s. 20, 18 H, c. 814, s. 1, If any person shall feloniously steal, take and carry away, or take by robbery, any bank note, check, or order tor the payment of money issued by, or drawn on any bank, or otlier society or corporation within this state, or within any of the United States, or any treasury warrant debenure, certificate of stock, or other public security! or certificate of stock in any corporation, or any order bill of exchange bond, promissory note, or other obliga- tion, either for the payment of money or for the delivery ot specific articles, being the property of any other per- son or of any corporation, (notwithstanding any of the said pai-ticulars may be termed in law a chose in action ) such felonious stealing, taking and carrying away or taking by robbery, shall be felony of the same nature and degree, and in tjie same manner as it would have been if the ottender had feloniously stolen, or taken by robbery money, goods, or property of any value, and such offen- der for every such offence, shall suffer such punishment, and be subject to the same pains, penalties and disabili- ties as he should or might have suffered, if lie had te omously stolen or taken by robbery money, goods or other property of value. State V. Rout, 3 Hawks, 618; State v. Brown. 8 Jon., 443- State v Ful- ford. Phil.. 563; State v. Banks; Phil., 577; State v. Thoma.son 71-ll40- State V. Carter. 72-99; Slate v. Collins, 72-144; State v. Freeman 73- 521; State v. Dill. 75—257. Chap. 25.] CRIMES AND PUNISHMENTS. 431 Sec. 1065. Larceny, by servant of master's goods. R. C, c. 34, s. 18. 31 Hen. VIII, c. 7,ss. 1, 2. 39 Geo. Ill, c. 85. 7, 8 Geo. IV, c. 29, s. 47. 24, 25 Vict., c. 96, s. 68. If any servant or employee, to whom any money, goods, or other chattels, or any of the articles, securities, or choses in action mentioned in the preceding section, by his master shall be delivered safely to be kept to the usf of his master, shall withdraw himself from his master, and go away with the said money, goods, or other chat- tels, or any of the articles, securities, or choses in action mentioned as aforesaid, or any part thereof, with intent to steal the same and defraud his master thereof, con- trary to the trust and confidence in him reposed by said master; or if any servant, being in theserviceof his mas- ter, without the assent of his master, shall embezzle such money, goods, or other chattels, or any of the articles, securities, or choses in action mentioned as aforesaid, or any part thereof, or otherwise convert the same to his own use, with like purpose to steal them, or defraud his master thereof, the servant so offending shall be fined, or imprisoned in the penitentiary or county jail, not less than four months nor more than ten years, at the dis- cretion of the court: Provided, that nothing in this sec- tion contained shall extend to apprentices, or servants, within the age of eighteen years. Stale V. Higgins, Mar., 6a (59); State v. Jarvis, 63—508; State v. Ed- wards, 86—666. Sec. 1066. Larceny, horse-stealing. 1868, c, 37, s. 1. 1879, c. 234, s. 3. 1866-'7, c. 62. Every person who shall steal any horse, mare, gelding or mule, shall suffer imprisonment at hai-d labor for not less than five nor more than twenty years, at the discre tion of the judge. A count under this section may be joined in a bill of indictment with a count under the succeeding section. Slate V. Adams. 1 Hay, 463 (534); State v. Putney, Phil., 543; State V. Evans, 69—40; State v. Bryant, 74—124; State v. Johnson, 75—133; State V. Lawrence, 81 — 136. Sec. 1007. Larceny, stealing horse for temporary use or purpose. 1879, c. 234, s. 1. If any person shall unlawfully take and carry away any horse, gelding, mare or mule, the property of an- other person, secretly and against the will of the owner of said proi>erty, with intent to deprive the owner of 432 CRIMES AND PUNISHMENTS. [Chap. 25. said property of the special or temporary use of the same or with the intent to use said property for a special or temporary purpose, the person so ofifending shall be guilty of larceny, and punished by imprisonment in the penitentiary or county jail, not less than four months nor more than ten years, and fined, in the discretion of the court: Provided, this section shall not be construed to repeal or m any way affect the preceding section. Sec. 1068. Larceny, the felonious injury to, or pursuit of, live stock, with intent to appropriate the same, a mis- demeanor. 1866, c. 57. If any person shall pursue, kill or wound any horse niule, ass, jenny, cattle, hog, sheep or goat, the property of another, with the intent unlawfully and feloniously to convert the same to his own use, he shall be guilty of a misdemeanor, and shall be punishable, in all respects as if convicted of larceny, though such animal may not have come into the actual possession of the person so of- fendmg. And all persons commanding, counselling ad- vising, aiding or abetting any of such unlawful acts shaU be punished in hke manner, and may be prosecuted alone, or with the principal actor. State V. Butler, 65—309; State v. Folder, 81—527. Sec. 1069. Larceny of growing crops or vegetables. 1811, c. 816. R. C, c. 34, s. 21. 1868-'9, c. 351. Ef any person shall steal, or feloniously take and cany away any maize, corn, wheat, rice, or' other grain, or any cotton, tobacco, potatoes, peanuts, pulse, or any fruit, vegetable, or other product cultivated for food or market, growing, standing or remaining ungathered in any field or ground, he shall be guilty of larceny, and punished accordingly. Flynt V. Conrarl, Piiil. 190; State v. Cherry, 73—123; Slate v. Graham 76-195; State v. Lilcs, 78-496; State v. Foy, 83-679; State v. Bragg 86 —687; State v. Copeland, 86—691; State v. Webb, 87—558. Sec. 1070. Larceny of wood or other property, growing or being upon land. 1866, c. 60. If any person, not being the present owner or bona fide claimant thereof, shall wilfully and unlawfully enter upon the lands of another and carry off or be engaged in carrying off any wood or other kind of property whatso- ever, growing or being thereon, the same being the property of the owner of the premises, or under his con- trol, keepmg or care, such person shaU, if the act be Chap. 25.] CRIMES AND PUNISHMENTS. 433 done with felonious intent, be guilty of larceny, and pun- ished as for that offence. And if not done with such in- tent, shall be guilty of a misdemeanor. State V. Crossett, 81—579; State v. Dudley, 83—660. Sec. 1071. Larceny or obliteration of public records, or fraudulent removal of registration book ; not neces- sary to allege ownership or value. R. C, c. 34, s. 31. 8 Hen. VI, c. 13. 1881, c. 17. If any person shall steal, or for any fraudulent pur- pose, shall take from its place of deposit for the time be- ing, or from any person having the lawful custody there- of, or shall unlawfully and maliciously obliteiate, injure or destroy any record, writ, return, panel, process, inter- rogatory, deposition, affidavit, rule, order or wan ant of attorney or any original document whatsoever, of or be- longing to any court of recoid, or relating to any matter civil or criminal, begun, pending or temiinated in any such court, or any bill, answer, interrogatory, deposition, affidavit, order or decree or any original document what- soever, of or belonging to any court or relating to any cause or matter begun, pending or terminated in any such court, every such offender shall be guilty of a mis- demeanor; and in any indictment for such offence it shall not be necessary to allege that the article, in respect to which the offence is committed, is the property of any person or that the same is of any value. And if any per- son shall steal, or for any fraudulent purpose shall take from the register's office, or from any person having the lawful custody thereof, or shall unlawfully and wilfully obliterate, injure or destroy any book wherein deeds or other instruments of writing are registered, or any other hook of registration, or record required to be kept by the register of deeds, or shall unlawfully destroy, obliterate, deface or remove any lecord of proceedings of the board of county commissioners, or unlawfully and fraudulent- ly abstract any record, receipt, order or voucher or other paper writing required to be kept by the clerk of the board of commissioners of any county, he shall be guilty of a misdemeanor. Sec. 1072. Larceny, fraudulent concealment or destruc- tion of wills. B. C, c. 34, s. 33. If any person, either during the life of the testator or after his death, shall steal or for any fraudulent purpose destroy or conceal any will, codicil or other testamentary instrument, he shall be guilty of a misdemeanor. 19 43i CRIMES AND PUNISHMENTS. [Chap. 25. Sec. 1073. Liarceny, fraudulent disposition by clerk, or other custodian of the public laws, reports of supreme court or other public documents, a misdemeanor. 1881, c. 151. It shall be the duty of the clerk of the superior court of each county, and every other person to whom the acts of the general assembly, supreme court reports, or other public documents, are transmitted or deposited for the use of the county or the state, to safely keep the same in their respective offices; and if any such person having the custody of such books and documents, for the uses aforesaid, shall negligently and wilfully dispose of the same, by sale or otherwise; or refuse to deliver over the same to his successor in office, he shall be guilty of a misdemeanor, and punished by fine or imprisonment, or both, at the discretion of the court. Sec. 1074. Larceny, receivers of stolen goods, punishment of. K. C, c. 34, s. 56. 1797, c. 485, s. 2. If any person shall receive any chattel, property, money, valuable security, or other thing whatsoever, the steahng or taking whereof shall amount to larceny or felony, either at common law or by virtue of any statute made or hereafter to be made, such person knowing the same to have been feloniously stolen or taken, every such receiver shall be guilty of a misdemeanor, and may be indicted and convicted, whether the felon stealing and taking such chattels, property, money, valuable security, or other thing, shall or shall not have been previously convicted, or shall or shall not be amenable to justice; and any such receiver may be dealt with, indicted, tried and punished in any county in which he shall have, or shall have had, any such property in his possession, or in any county in which the thief may be tried, in the same manner as such receiver may be dealt with, indicted, tried and punished in the county where he actually re- ceived such chattel, money, security, or other thing; and such receiver shall be punished as one convicted of larceny. State V. Ives, 13 Ired., 338; State v. Minton, Pliil., 190; State v. Beatty, Phil.. 52; S(ate v. Phelps, 65—450; Slate v. Rushing, 69—29; Stale v. Britc, 78—26; State v. Cavcness, 78—484; State v. Lawrence, 81—523; State V. Jones, 82 — 685; State v. Morrison, 85—561. Sec. 1075. Larceny, distinction between grand and petit larceny abolished. R. C., c. 34, s. 26. AH distinctions between petit and grand larceny, where I Chap. 25.] CRIMES AND PUNISHMENTS. 435 the same hath had the benefit of clergy, is abolished; and the offence of felonious steahug, where no other punish- ment shall be specifically prescribed therefore by statute, shall be punished as petit larceny is: Provided, thai m cases of much aggravation, or of hardened offenders, the court may, in its discretion, sentence the offender to the penitentiary for a period not exceeding ten years. State V. Minton, Phil., 196; State v. Kearzey, Phil., 481; State v. Haughton, 63—491; State v. Ratts, 63-503; State v. Brite, 73-36 ; State V. Gaston, 73—96; State v. Lawrence, 81—535; State v. Tyler, 85—569. Sec. 1076. Liquor selling, retailing without license. B. C, €.34,8.94. 1825, c. 1272, s. 5. 1874-'5, c. 39. Pas- sim,, 1798, c. 501. 1816, c. 906. If any person shall retail spirituous liquors by the small measure in any other manner than is prescribed by law, he shall be guilty of a misdemeanor, and shall be fined or imprisoned, or both, in the discretion of the court. State V. Shaw, 2 Dev., 198; State v. Morrison, 3 Dev., 299; State v. Faucett, 4 D. & B., 107; State v. Kirkham, 1 Ired., 384; State v. Moore, 1 Jon., 276; Commissioners of Raleigh v. Kane, 2 Jon., 288; State v. Bell, 2 Jon., 837; State v. Gerhardt, 3 Jon., 178; State v. McNeely, 1 Winst., 284; State v. Dobson, 65—346; State v. Simmons, 66—623; State v. Stamey, 71—202; State v. Wray, 72—253; State v. Lowry, 74—121; State v. Hamp- ton, 77— 526; State V. Packer, 80—439; State v. Joyner, 81—534; State v. McMinn. 83—668; State v. Midgett, 85—538; State v. Poteat, 86—613; State V. Wool, 86—708; State v. Propst, 87—560. Sec. 1077. Liquor selling to minors forbidden. 1873-'4, c. 68. 1881, c. 242. It shall be unlawful for any dealer of intoxicating drinks or liquors to sell, or in any manner to part with for a compensation therefor, either directly or indirect- ly, or to give away such drinks or hquors, to any un- married person under the age of twenty-one years, knowing the said person to be under the age of twenty- one years: Provided, that such sale or giving away shall be pri7na facie evidence of such knowledge. Any per- son who keeps on hand intoxicating drinks or hquors for the purpose of sale or profit, shall be considered a dealer within the meaning of this section. And any person violating this section shall be guilty of a misdemeanor. Sec. 1078. Liquor selling to minors; the father, mother, guardian and employer of minor may sue liquor dealer for damages. 1873-'4, c. 68. 1881, c. 242, s. 2. .^The father, or if he be dead, the mother, guardian or 436 CRIMES AND PUNISHMENTS. [Chap. 25. employer of any minor to whom a sale or eift shall h^ rThf o^Zcttn ?n f ^f ^T^"^^ ^^«"«-' S.all tavet S ^ i^ ^^ ? ^^""^^ ^"^<^ agamst the person or ner sons so offendmg by such sale or gift, and upon pi oof of such ilhcit s^e or gifts, shall recover 'from S party or parties so offending, such exemplary dama-es as a hi,^ may assess: Provided, that such assessmmitthall not Le less than twenty -five dollars. Sec. 1079. I.iqnor sellingr within two miles of public politi- cal speakings prohibited. 1 8 79, c. 2 1 3. PO""- It shall be unlawful for any person to" sell or to e-ivP- away, either directly or indiiectly, any spirituous liQu?^ wme or bitters containing alcohol, -Within two nXs of any place at which political public speaking shal? be ad tTon to .*'' r^' P'^?' f'"^. ^«^« t^ki place,^h s piSiibi- tion to continue only during the day on which said nub lie political speaking shall take place. And any person who shall violate this section shlll be guilty of I So t^fnTw' ""f 1^?/^^^ "?* ^''' <^han ten^dollLs nor loi^ dav? T.?i^ '^''"f !', ^' imprisoned not exceeding twen v days. Justic^of the peace shaU have original iurisdc duly rii^^tf '"^^' "^^"^""' «^ -"^t- -^--Sl,n "\^^:^"y?i^-rr?9r:::i^e^ i^ji- cdfnt^^fcfr^'-"' " '- "• "• --. (--^<^^"e If any person shaU, of malice aforethought, unlawfully cutout or disable the tongue or put outaneye™? person, wrth intent to murder, maim or disfigui? the per son so offending, his counselors, abettors^ and aiders knowing of and privy to the offence, shall, for the first offence be punished by imprisonment in the peiiteHtfai y or county jail not less than four months no? more t ImJ ten years and be fined, in the discretion of the court and for the second offence shall be imprisoned in the penitentiary not less than five nor m'ore ?h1n sixty State V. Irwin, 1 Ha,., 130 (11.5); State v. Bridges, 1 Mar., 134- State v S^ILT ■ ?:'.' '''■■^'^''^- G-"^-. 1 I-d., 121 ; State V. Green, 7Ired " (59; State V. Sliidmore, 87— 509. Sec. 1081. Malicious injury to real property. K. C. c 34 8.111. 187.3-'4. c. 176,.s.6. «• ^m c J4, If any person shall maliciously commit any damage. Chap. 25.] CEIMES AND PUNISHMENTS. 437 injury or spoil upon any real property whatsoever, either of a public or private nature, for which no punishment is provided by any existing law,every person so offending shall be guilty of a misdemeanor: Provided, that noth- ing herein shall extend to any case where the party tres- passing or doing the injury acted under a fair and reason- able belief that he had a right to do the act complained of, nor to any trespass, not being wilful and malicious, committed in hunting, fishing or the pursuit of game. When the owner or one of the ownere of an estate in possession, shall complain of the injui-y before a justice of the peace of the county in which the offence is charged to have been committed before the regular term of the supei'ior court next after the commission of the offence, and shall fail to state in his complaint that the damage exceeds ten dollars, the punishment, upon conviction of the offence, shall not exceed a fine of fifty dollars or im- prisonment for thirty days. State V. Ross, 4 Jon., 315; State v. Batcbelor. 72 — 468. Sec. 1082. Malicious injury to personal property. 1876- ♦7, c. 18. If any person shall wilfully injure the personal prop- erty of another, through malice to the owner, he shall be guilty of a misdemeanor, whether the property be de- stroyed or not, and shall be punished by fine or imprison- ment, or both, in the discretion of the court. Sec. 1083. Marriages, unlawful with female under four- teen years of age without consent of father. R. C, c. 34, s. 46. 1820, c. 1041, ss. 1, 2. If any person shall marry a female under the age of fourteen years, he shall be guilty of a misdemeanor State V. Watts, 10 Ired., 369. Sec. 1084. Marriages, unlawful between whites and ne- groes. Const., Art. XrV., s. 8. B. C, c. 68, s. 7. 1834, c. 34. 1838-'9, c. 24. All marriages between a white person and a negro, or between a white person and a person of negro descent to the third generation inclusive, are forever prohibited, and shall be void. And any person violating this section shall be guiltj^ of an infamous crime, and punished by imprisonment in the county jail or penitentiary, not less than four months nor more than ten years, and may also be fined in the discretion of the court. State V. Fore and Chestnut, 1 Ired., 378; State v. Walters, 3 Ired., 455; 438 CRIMES AND PUNISHMENTS. [Chap. 25. State V. Hooper, 5 Ired., 201; State v. Melton and Byrd, Busb., 49; State V. Hairston, 63—451 ; Slate v. Reinhardt, 63—547; State v. Ross, 76—242; State V. Kennedy, 76—251. Sec. 1085. Marriages, nnlawful for register of deeds, clergyman and justice of the peace to consent to the marriage of a negro to a white person. K. C. c. 34 s. 80. 1830, c. 4. s. 2, If any register of deeds shall knowingly issue any Uceuse for marriage between any person of color and a white person; or if any clergyman, minister of the gos- pel or justice of the peace shall knowingly marry any such person of color to a white person, the person so offending shall be guilty of a misdemeanor. Sec. 1086. Mills, owners of, to keep up bridges over ditches, drains and canals. R. C, c. 34. s. 40. 181 Q c. 941,s. 3. * Every owner of a water-mill, situated on any public road, and also every person whose duty it is to keep up and repair bridges built across any ditch, drain, or canal m the chapter entitled "Roads, Ferries and Bridges " who shall refuse or neglect to keep up and repair, or who shall suffer to remain out of repair for the space of ten days, any bridge which by law he may be required to keep up and repair, shall be guilty of a misdemeanor. State V. Yarrell, 12 lied., 180. Sec. 1087. Mills, the destruction or obstruction of dams, canals or water channels, connected with a mill, fac^ tory or machine works, indictable. 1866, c. 48. Any person who shall cut away, destroy, or otherwise in- jure any dam, or part thereof, or shall obstruct or damage any race, canal, or water channel erected, opened, used or constructed, for the purpose of furnishing water for the operations of any mill, factory or machine works or for the escape of water therefrom, shall be liable to' be indicted in the county in which the offence shall have been committed; and upon conviction shall be fined or imprisoned, or both, at the discretion of the court, and shall also be hable to an action in said court for damages by the person or company thus injured. ' State V. Tomlinson, 77—528. Sec. 1088. Monuments and tombstones, unlawftil to de- face or remove. R. C, c. 34, s. 102. 1840, c. 6. If any person shall, unlawfully and on purpose, re- move from its place any monument of marble, stone, brass, Chap. 25.] CRIMES AND PUNISHMENTS. 439 wood or other material, erected for the purpose of desig- nating the spot where any dead body is interred, or tor the purpose of preserving and perpetuating the m^^mory, name, fame, birth, age or death of any person, whether situated in or out of the common burying ground, or shall unlawfully or on purpose break or deface such mon- ument, or alter the letters, marks or inscription thereot, he shall be guilty of a misdemeanor. Sec. 1089. Mortgaged property, unlawful *« ^'spose of; sufficiency of indictment and proof. 1873-4:, c. rfi. 1874-'5, c. 315. 1883, c. 61. If any person, after executing a chattel mortgage, deed in trust or other lien for a lawful purpose shall, after the execution thereof, make any disposition ot any personal property embraced in l^^h mortgage deed m trust or lien, with intent to hmder, delay or defeat the riehts of any person to whom or for whose benefit such deed was made, every person so offending and every per- son with a knowelege of the hen buying the property embraced in any such deed or lien, and every person as- sisting, aiding or abetting the unlawful disposition of such property, with intent to hinder, delay or defeat the rights of any person to whom or for whose benefit any such deed or li^n was made, shall be guilty of a misde- meanor, and punished by fine or imprisonment, or both, in the discretion of the court. .. In all indictments for violations of the said provisions ot this section, it shall not be necessary to allege ot prove the person to whom any sale or disposition ot said prop- erty was made, but proof of the possession of the prop- erty embraced in such chattel mortgage, deed in trust or lien by the grantor thereof, after the execution of said chattel mortgage, deed in trust or lien, and while it is m force and further proof of the fact that the sheriff or other officer charged with the execution of said process cannot after due diligence find said property under pro- cess directed to him for its seizure, for the satisfaction ot such chattel mortgage, deed in trust or hen, or that the mortgagee demanded the possession thereof of the moit- eagor for the purpose of sale to foreclose satd mortgage, deli in trust or lien, after the right to such foreclosure had accrued, and that the mortgagor failed to produce deliver or surrender the same to the mortgagee tor that purpose, shall hQ prima facie proof of the fact ot a dis- position or sale of said property, by said P'antor, with the intent to huider, delay or defeat the rights otthe per- 440 CRIMES AND PUNISHMENTS. [Chap. 25. was mada''"' ^^'^ ''^''"'^ mortgage, deed in trust or lien ^^Statc V. Pickins, 79-652; State v. Burns, 80-376: State v, Jones. 83- *^*';..'?"r ^T^"^ '■''*""^ *** discharge their duties, may be indicted and removed from office. R. C., c. 34, s. If any clerk, sheriff, justice of the peace, or any other officer, who is required, in entering upon his office to take an oath of office, shall wilfully oniit, negector re fuse to discharge any of the duties of his office, for de- frndSffl'*' 'i'"^"* elsewhere provided that he shall be indicted the clerk or other officer so offending shaU be guilty of a misdemeanor. And if it shall be proved that any such officer after his qualification, shall have violated his said oath, and willingly and coi'ruptly W done anything contrary to the true intent and meanhil thereof, sucji oificer shall be guilty of misbehaviour f office, and shall be punished by removal therefrom under the sentence of the court as a part of the punishment for the offence; and shall also be fined and imprisoned, in the discretion of the com-t. ' Mitchell y. Ward. 6 Jon. Eq., 69; Fentress v. Brown. Phil., 873- Cain v Haywood 66-1; State y. Powers, 75-281; State v. Furcuson '76-197- sHfil" ^'=f°"'J7-505; S'«t« ^- HawUins, 77-494; Sllue y. Norman,' 8«J— 688; btate y. Snuggs, 85—541; McKee v. Wilson, 87—300. Sec. 1091. Peddling without license. R. C, c. 34, s. 44. If any person shall unlawfully hawk or peddle anv goods, wares or merchandise, or shall fail, upon the an phcation of the sheriff or his deputy, or 'an? fus ice ?f the peace, to show his license as required by law he shaU be guilty ol a misdemeanor. j , lio Sec^ 1092. P|^«ry^ its punishment. R. C, c. 34, s. 49. If any person shall wilfully and corruptly commit ner SeTi"' "''^ "; affirmation, in any suitf con" we??y mattei or cause depending m any of the courts of the state, or in any deposition or affidavit taken pursuant to law, or m any oath or affirmation duly administered of or concerning any matter or thing, whereof such person is lawfully required to be sworn Ir affirmed, eveiy pe.son 80 offending shall be guilty of a misdemeanor, and fined not exceeding one thousand doUars, and imprisoned in Chap. 25 ] CRIMES AND PUNISHMENTS. 441 the county jail or penitentiary, not less than four months nor more than ten years. State V. Alexander, 4 HawUs, 183; State v. Hoyle, 6Ired., 1; State v. Ledford, 6 lied., 5; State v. Groves, Busb., 403; State v. Knox, Phil., 313; State V. Davis, 84—787; State v. Mace, 86—688. Sec. 1093. Perjury, subornation of. K. C, c. 34, s. 50. 1791, C.338, s. 2. If anv person shall, by any means, procure another person to commit such wilful and corrupt perjury as is mentioned in the preceding section, the person so offend- ing shall be punished in hke manner as the person com- mitting the perjury. Sec. 1094. Poison, unlawful to put in streams, for purpose of catching, killing or driving away fisli. 1883, c. 290. It shall be unlawful for any person to put any poison- ous substance for the purpose of catching, killing or driving off any fish in any of the waters of a creek or river and any person violating this section shall be guilty of a misdemeanor. Sec. 1095. Political societies, secret, prohibited. 1870- '71, c. 133. 1868-'9, c. 267. 1871-'2,c. 143. If any person, for the purpose of compassing or further- ing any pohtical object, or aiding the success of any political party or organization, or for resistmg the laws, shall join or in any way connect or'unite himself with any oath-bound secret pohtical or military organization, society or association of whatsoever name or character, or shall form or organize, or combine and agree with any other person or persons to form or or- ganize any such organization, or as a member of any secret political or military party or organization shall use, or agree to use, any certain signs or grips or passwords, or any disguise of the person or voice, or aLy disguise whatsoever for the advancement of its object, and shall take or administer any extra-judicial oath, or any secret solemn pledge, or any like secret means, or if any two or more persons for the purpose of compassing or furthering any political object, or aiding the success of any political party or organization, or for circumventing the laws, shall secretly assemble, combine or agree together, and the more effectually to accomplish such purposes, or any of them, shall use any certain signs, or grips, or pass-words, or any disguise of the person or voice, or other disguise whatsoever ; or shall take or *42 CRIMES AND PUNISHMENTS. [Chap. 25. administer any extra-judicial oath or other secret solemn pledge or if any persons shall band together and assemble bv vMt/o?fl'' "' practiceany milita.yevolutls S^ep? by virtue of tlje authority of an officer recognized by law or of an instructor m institutions or schools in which orif nnv ?.'''°' ^'?,'"T, ^ ^"""^ ''^ ^^6 course of instruction. or f any person shal knowingly permit any of the acts and things herem forbidden to be had, done or performed on his premises, or on any premises under his control or It any person being a member of any such secret political or military organization, shall not at once abandon the same and separate himself entirely therefrom, every per son so offending shall be guilty of a misdemeanor and tnied not less than ten nor more than two hundred dol- couV '™P^^s°"e^j court to direct the prosecutor to pay costs in ceriain cnses. 1305. Judges may lessen or remit recognizances at any time. 1306. Clerk to refund remitud for. feitures paid into office. 454 CRIMINAL PEOCEEDINGS. [Chap. 26. Section. 1207. County treasurer to refund •when paid to him. 1208. Execution not to issue until the issuing of the notice. 1209. Joint notice to issue on for- I feited recognizances. 1210. How notices executed. 1211. Convicte(f ■ person must pay the costs. 1212. Penalties not specially given may be recovered by any per- son who will sue for the same. 1213. Suits on penalties, unless other- wise provided, may be brought in the name of the state. 1214. Prosecuting attorneys to direct post mortem examinations. 1215. Persons participating in un- lawful gaming compelled to testify of the gaming, not to be prosecuted therefor. 1216. OlHcers who are authorized to keep the peace. 1217. Duty of magistrate on com- plaint being made. 1218. When warrant to issue. 1219. To whom the warrant shall be directed. 1220. Duty of magistrate on return of warrant. 1221. When party complained of discharged and when im- prisoned. 1223. How discharged subsequently. 1223. Kecognizance to be returned to next term of court. 1224. Persons committing breach of the peace in presence of the court may be required to give security or imprisoned. 1225. Proceedings on recognizan- ces. 1236. If complainant does not ap- pear, the accused shall be dis- charged, otherwise court to hear the proofs, and decide accordingly. Section. 1227. Recognizance, when deemed broken. 1228. When there is evidence of breach, court shall order re- cognizance prosecuted. 1229. Term of court expiring during progress of trial, court shall continue it. 1230. Bail may arrest and surrender principal before final judg- ment; bail not thereby dis- charged after recognizance forfeited. 1231. Persons surrendered may give other bail; sheiifl allowing a release liable to be amerced and indicted. 1282. Sheriff or other officer having prisoner in custody may take bail. 1233. Matter of defense which is good for principal is good for bail. 1234. Appeals by defendant to su- preme court. 1235. Convicted persons may appeal without giving security for costs. 1236. Judge to grant appeal and re- quire defendant to give secur- ity for his appearance. 1237. Appeal by state ; in what cases recognized. 1238. What the commitment shall set forth. 1239. Duty of solicitors to prosecute certain criminal cases in tlie United Sta-tes courts. 1240. Compensation of solicilors in such cases. 1241. Concurrent jurisdiction of in- ferior and superior courts in certain criminal cases, with a view to a speedy trial of criminals. 1242. Pending cases remaining un- tried to be transferred to sue Chap. 26.] CRIMINAL PEOCEEDINGS. 455 Section. ceeding court, wlietber inferior or superior. 1243. The execution of capital offen- ders is to be private, unless the Section. board of county commissioners shall otherwise order. 1344. Sheriff may admit to witness the execution, two physicians and necessary assistaats. Sec. 1124. Persons present at breaches of the peace to arrest oflenders. 1868-'9, c. 178, sub chap. 1, s. 1. Every person present at any riot, rout, affray or other breach of the peace, shall endeavor to suppress and pre- vent the same, and if necessary for that purpose, shaU arrest the offenders. State V. Belk, 76—10. Sec. 1125. Persons summoned by officer must assist In the arrest. 1868-'9, c. 178, sub chap. 1, s. 2. Every person summoned by a judge, justice, mayor, intendant, chief officer of any incorporated tovs^n, sheriff, coroner or constable, to aid in suppressing any not, rout, •unlawful assembly, affray or other breach of the peace, or to arrest the persons engaged in the commission of such offences, or to prevent the commission of any felony or larceny which may be threatened or begun, shall do so. State V. Belk, 76—10. Sec. 112G. Peace officers shall arrest without warrant in certain cases. 1868-'9, c. 178, sub chap. 1, s. 3. Every sheriff, coroner, constable, officer of police, or other officer, entrusted with the care and preservation of the public peace, who shall know or have reasonable ground to believe that any felony or larceny has been committed, or that any dangerous wound has been given, and shall have reasonable ground to believe that any par- ticular person is guilty, and shall apprehend that such person may escape if not immediately arrested, shall ar- rest him without warrant, and may summon all bystand- ers to aid in such arrest. State V. Belk, 76—10. Sec. 1127. Houses may be broken open to prevent a felony therein. 1868-'9, c. 178, sub chap. 1, s. 4. All persons are authorized to break open and enter a house to prevent a felony about to be committed therein. 456 CRIMINAL PEOCEEDINGS. [Chap. 26. Sec. 1128. Officers may break open doors to arrest per- sons charged with high crimes. 1868.'9, c. 178 sub chap. 1, s. 6. » »» If a felony or other infamous crime has been com- mitted, or a dangerous wound has been given and therft IS reasonable ground to believe that the guilty person S concealed m a house, it shaU be lawful for an? sheriff coroner, constable, or police officer, admittance having be«n demanded and denied, to break open the door and enter the house and arrest the person against whom there shall be such ground of belief. Sec. 1129. Persons in whose presence an infamous crime IS committed, may arrest the offender. 1868-'0 o 178, sub chap. 1, s. 6. Every person in whose presence a felony or other infa- mous crime has been committed may arrest the person whom he knows or has reasonable ground to ! elieve to be gmlty of such offence, and it shall be the duty o ever? sheriff, coroner constable or officer of police, upon infor- mation, to assist in such arrest. Sec. 1 130. Persons arrested without warrant entitled to have an immediate hearing. 1868.'9, c. 178 sub chap. 1, s. 7. ' . Every person arrested without warrant shall be either immediately taken before some magistrate havinciuSs diction to issue a warrant in the case, or else conmiitted to the county prison, and, as soon as may be, taken be- fore such magistrate, who, on proper proof, shall issue a b"™ P'"'"''^^'^ ^"^ ^""^ "^ ™^y ^® required Sec. 1131. Felons fleeing from justice, outlawed. 186fi c. 62. 1868-'9, c. 178, sub chap. 1, s. 8. _ In all cases where any two justices of the peace, or any judge of the supreme, superior or criminal courts shall on written affidavit, filed and retained by such iiisticeor judge receive mformation that a felony has been com- mitted by any person, and that such person flees from justice, conceals himself and evades arrest, and service of the usual process of the law, the said judge, or the said two justices, being justices of the county whmein such person 13 supposed to lurk or conceal himself, are hereby em- powered and required to issue proclamation against him reciting his name, if known, and therebv requiring him forthwith to surrender himself; and also," when issued by Chap. 26.] CEIMINAL PEOCEEDINGS. 457 any judge, empowering and requiring the sheriff of anv county in the state in which said fugitive shall be, and when issued by two justices empowenng and requiring the sheriff of the county of said justices, to take such power with him as he shall think fit and necessary for going in search and pursuit of, and effectually apprehend- ing- such fugitive from justice, which proclamation shall be publisheii at the door of the court house of any county in which such fugitive is supposed to lurk or conceal him- self, and at such other places as the judge or justices shaU direct; and if any person against whom proclamation hath teen thus issued, continue to stay out, lurk and conceal himself, and do not immediately surrender him- self, any citizen of the state may capture, arrest and bring him to justice, and in case of flight or resistance by him, after being called on and warned to surrender, may slay him without accusation or impeachment of any crime. Sec. 1132. Wlio may issue criminal process. 1868-'9, c. 178, sub chap. 3, s. 1. The following persons respectively shall have power to issue process for the apprehension of persons charged with any offence, and to execute the po%vers and duties conferred in this chapter, namely: the chief justice and the associate justices of the supreme court, the judges of the superior court, judges of criminal courts, presiding ofificers of inferior courts, justices of the peace, mayors of cities, or other chief officers of incorporated towns. Blate V. James, 80—370. Sec. 1133. Duty of magistrate on complaint being made to bim of tbe commission of a crime. 1868-'9, c. 178, sub chap. 3, s. 2. Whenever complaint shall be made to any such magis- trate, that a criminal offence has been committed within this state, or without this state and within the United States, and that a person charged therewith is in this state, it shall be the duty of such magistrate to examine on oath the complainant and any witnesses who may be produced by him. State V. James, 80—370; State v. Bryson, 84—780. Sec. 1134. Duty of magistrate to issue his warrant for tbe arrest of the accused. 1808-'9, c. 178, sub chap. 3, s. 3. If it shall appear from such examination that any 458 CRIMINAL PROCEEDINGS. [Chap. 26. criminal offence has been committed, the magistrate shall issue a proper warrant under his hand, with or without seal, reciting the accusation, and commanding the officer, to whom it shall be directed, forthwitli to take the person accused of having committed such offence, and to bring him before a magistrate, to be dealt with according to law. State V. James, 78—455; State v. Bryson, 84—780. Sec. 1 135. Where warrant to run. 1868-'9, c. 178, sub cliap. 3, s. 4. Warrants issued by any justice of the supreme court, or by any judge of the superior court, or of a criminal court, may be executed in any part of this state; war- rants issued by a justice of the peace, or by the chief officer of any city or incorporated town, may be executed in any part of the county of such justice, or in which such city or town is situated, and on any river, bay or sound forming the boundary between that and some other county, and not elsewhere, unless indorsed as pre- scribed in the section following. Sec. 1136. How warrants may be indorsed. 1868-'9, c. 178, sub chap. 3, s. 5. If the person against whom any warrant granted by any such justice of the peace or chief officer of a city or town shall be issued, shall escape, or be in any other county out of the jurisdiction of such justice or chief officer, it shall be the duty of any justice of the peace, or any other magistrate named in this chapter within the county where such offender shall be, or shall be suspected to be, upon proof of the handwriting of the magistrate issuing the warrant, to indorse his name on the same, and thereupon the person, or officer to whom the warrant was directed, or any officer of the county in which it was indorsed, to whom it may be delivei-ed, may arrest the offender in that county. State V. James, 80—370. Sec. 1137. Magistrate not liable to indictment or action for improperly indorsing warrant. 1868-'i>, c. 178, sub chap. 3, s. O. No magistrate shall be liable to any indictment, action for trespass or other action for having indorsed any war- rant pursuant to the provisions of the last section, al- though it should afterwaid ap})ear that such warrant was illegally or improperly issued. State V. Bailey, 73—70. Chap. 26.] CEIMINAL PROCEEDINGS. 459 Sec. 1138. Person arrested to be taken before .some magis- trate of the county Tvhei'e oftenoe was committed. 1868-'9, c. 178, sub chap. 3, s. 7. It shall be the duty of the oflficer making the arrest to take the person charged with the offence befoi'e some magistrate of the county in which the ofifence is charged to have been committed, or before any judge of the su- preme, superior or criminal court. 'i Sec. 1139. Magistrate shall take bail, if the ottence be not j a capital one. 1868-'9, c. 178, sub chap. 3, s. 8. 1871-'2, c. 37, s. 1. If the offence charged in the warrant be not punish- able with death, such magistrate may take from the per- son so arrested a recognizance with sufficient sureties for his appearance at the next term of the court having jurisdiction, to be held in the county where the ofifence shaU be alleged to have been committed. Sec. 1140. Duty of magistrate granting bail. 1868-'9, c. 178, sub chap. 3, s. 9. Such magistrate shall certify on the Avarrant the fact of his having let the defendant to bail, and shall deliver ■ the same, together with the recogiaizance taken by him, to the officer or other person having charge of the prisoner, who shall deliver the same without unnecessary delay to the clerk of the court in which such prisoner shall have been recognized to appear. State V. Bailey, 73—70. Sec. 1141. If bail is not allowed, or is not given, the ac- cused to be taken before a magistrate of the county where the Avarraut was issued. 1868-'9, c. 178, sub chap. 3, s. 10. If such magistrate refuse to bail the person so arrested, or if such person fail to give bail as above provided, the officer or person having him in charge shall take him be- fore a magistrate of the county in which the warrant was originally issued as hereinafter provided. Sec. 1142. In capital cases the prisoner must be brought before a magistrate of the county where the warrant was issued or before some judge of the supreme or superior court. 1868-'9, c. 178, sub chap. 3, s. 11. If the offence charged in the warrant be punishable with death, the ofificer making the arrest shall convey the prisoner to the county where the warrant was originally 460 CEIMINAL PEOCEEDINGS. [Chap. 26. issued, before some magistrate thereof, or before a iudge 01 the supreme or superior court. Sec. 1 143. Before what magistrate warrant to be return- able, 1868-'9, c. 178, sub chap. 3, s. 12. Persons arrested under any warrant issued for any ottence, where no provision is otlierwise made, shall be brought before the magistrate who issued the warrant • or, It he be absent, or from any cause unable to try the case, before the nearest magistrate in the same county • and the warrant, by virtue of which the arrest shall have been made, with a proper return indorsed thereon and signed by the officer or pereon making the arrest, shall be dehvered to such magistrate. State V. James, 78 — 455. Sec. 1144. Duty of the examining magistrate. 18G8-'9. c. 178, sub chap. 3, s. 13. The magistrate, before whom any such person shall be brought, shall proceed, as soon as may be, to examine the complainant, and the witnesses produced in support of the prosecution, on oath, in the presence of the prisoner in regard to the oiTence charged, and in regard to any other matters connected with such charge, which such magistrate may deem pertinent. State V. James, 78—455; State t. Bridges, 87—562. Sec. 1145. The examination; prisoner to be allowed time to advise with counsel and to cross-examine witness agaiust him. 1868-'9, c. 178, sub chap. 3, s. 14. The magistrate shall then proceed to examine the prisoner in lelation to the offence charged. Such exam- ination shall not be on oath ; and before it is commenced the prisoner shall be informed of the charge made against him, and shall be allowed a reasonable time to send for and advise with counsel. If desired by the person arrested his counsel shall be present during the examination of the complainant and the witnesses on the part of the prosecution, and duiing the examination of the prisoner; and the prisoner or his counsel shall be allowed to cross- examine the complainant and the witnesses for the prosecution. State V. Needliam, 78—474; State v. James, 78—455. Chap. 26.] CRIMINAL PROCEEDINGS. 461 Sec. 1146. Prisoner shall be informed that he may refuse to answer any questions. 18C8-'9, c. 178, sub chap. 3, s. 15. At the commencement of the examination, the pris- oner shall be informed by the magistiate that he is at liberty to refuse to answer any question that may be put to him, and that his refusal to answer shall not be used to his prejudice in any stage of the proceedings. State V. Matthews, CC— 106; State v. Eone, 74—148; State v. Needham, 78—474; State v. Spier, 86— GOO. Sec. 1147. Answer of prisoner shall be reduced to writ- injf. 1868-'9, c. 178, sub chap. 3, s. 10. The answer of the prisoner to the several interroga- tories shall be reduced to writing by the magistrate, or under his direction: they shall be read to the prisoner who n)ay correct or add to them; and when made con- formable to what he declares is the truth, shall be certi- fied and signed by the magistrate. State V. Bridgcrs, 87—563. Sec. 1148. Prisoner may ex.amine witnesses and have the assistance of counsel. 18G8-'9, c. 178, sub chap. 3, s. 17. After the examination of the prisoner is complete, his witnesses, if he have any, shall be sworn and examined, and he may have the assistance of counsel in such ex- amination. Sec. 1149. The prisoner shall not be examined in the presence of witnesses; witnesses may be exumined sep- arately. 18G8-'9, c. 178, sub chap. 3, s. 18. The witnesses produced on the part either of the pris- oner or of the prosecution shall not be present at the ex- amination of the prisoner; and while any witness is under examination the magistiate may exclude from the place in which such examination is had all witnesses who have not been examined, and may cause the wit- nesses to be kept separate and prevented from convers- ing with each other until they shall have been examined. Sec. 1150. The testimony of witnesses to be reduced to writing. 1868-'9, c. 178, sub chap. 3, s. 19. The evidence given by the several witnesses exainined shall be reduced to writing by the magistrate or under his direction, and shall be signed by the witnesses respec- tively. State V. Valentine, 7 Ired., 225. 462 CRIMINAL PROCEEDINGS. [Chap. 26. Sec. 1161. When prisoner shall be dischargred. 1868-'9 c. 178, sub chap. 3, s. 20. ' If, upon examination of the whole matter, it shall appear to the magistrate either that no offence lias been committed by any person or that there is no probable cause for charging the prisoner therewith, he shall dis- charge such prisoner. Sec. 1152. When prisoner shall be hound over. 1868-'9, c. 178, sub chap. 3, s. 31. If it shall appear that an offence has been committed, and that there is probable cause to believe the prisoner to be guilty thereof, the magistrate shall bind by recogni- zances the prosecutor and all the material witnesses against such prisoner to appear and testify at the next term of the court having jurisdiction for the county in which the offence is alleged to have been committed. Sec. 1153. Magistrate need not take the examination of a prisoner charged with a misdemeanor. 1868-'9, c. 178, sub chap. 3, s. 22. Nothing contained in the preceding sections of this chapter shall be construed to require any magistrate, before whom a prisoner charged with a misdemeanor shall be brought, to take the examination of such pris- oner, except where such magistrate shall deem it mate- rial so to do, or where such examination shall be required by the prisoner. Sec. 1 154. Witnesses may be required to give security for their appearance. 1868-'9, c. 178, sub chap. 3, s. i23. Whenever such magistrate shall be satisfied by the proof tha,t there is good reason to believe that any" such witness will not fulfill the conditions of such recognizance unless security be required, he may order such witness to enter into a recognizance with such sureties as he shall deem meet for his appearance at such court. Sec. 1155. Witness not giving the security required may be committed to prison. 1868-'9, c. 178, sub chap. 3, s. 24. If any witness so required to enter into a recognizance, either with or without sureties, shall refuse to comply with such order, it shall be the duty of such magistrate to commit him to prison until he shall comply with such order, or be otherwise discharged according to law. Chap. 26.] CRIMINAL PROCEEDINGS. 463 Sec. 1156. Wlienbail shall be allowed. 1868-'9, c. 178, sub chap. 3, s. 35. If the offence with which the prisoner is charged be bailable, and the prisoner offer sufficient bail, such bail shall be taken and the ])risoner discharged; if no bail be offered, or the offence be not bailable, the prisoner shall be committed to prison. Sec. 1157. Examinations and recognizances to be certified to tbe court by the committing magisti-ate. 1868-'9, c. 178, sub chap. 3, s. 36. All examinations and recognizances taken pursuant to the provisions of this chapter shall be certified by the magistrate taking the same to the court at which the wit- nesses are bound to appear, on the first day of the sitting thereof; and the examinations taken and subscribed as herein prescribed, may be used as evidence before the grand jury, and on the trial of the accused, provided he was present at the taking thereof and had an opportunity to hear the same and to cross-examine the deposing wit- ness, if such witness be dead or so ill as not to be able to travel, or by procurement or connivance of the defendant, hath removed from the state or is of unsound mind. State V. Grady, 83—643; State v. King, 86—600; State v. Bridgers, 87— 563. Sec. 1158. Penalty on magistrate failing to make the required return. 1868-'9, c. 178, sub chap. 3, s. 37. If any magistrate shall refuse or neglect to return to the proper court any such examination or recognizance by him taken, he may be compelled by rule of court forthwith to return the same, and in case of disobedience of such rule, may be proceeded against by attachment as for contempt of court as provided by law. Sec. 1159. The magistrate may associate with himself another. 1868-'9, c. 178, sub chap. 3, s. 28. It shall be lawful for any magistrate, to whom any complaint may be made, or before whom any prisoner may be brought, as hereinbefore provided, to associate with himself any other magistrate of the same county; and the powers and duties herein mentioned may be exe- cuted by such two magistrates so associated. *64 CKIMINAL PEOCEEDINGS. [Chap. 26. Sec. 1160. Who may bail persons charged with crime but not imprisoned. 1868-'9, c. 178, sub chap. 3 a. 29 1871-'2, c. 37. ,"•"». Oflficers befoie whom persons charged with crime, but who have not been committed to prison by an authorized magistrate, shaU be brought, shall have power to take bail as follows: (1) Any justice of the supreme court, or a judge of a superior court, or of a criminal court, in all cases (2) Any justice of the peace or chief magistrate of any incorporated city or town, in all cases of misdemeanor and m all cases of felony not capital. Sec. 1161. Who may let to bail persons charged with crime and in prison. 1868-'9, c. 178, sub chap. 3. s 30. ^ ' Any justice of the supreme court or any judge of a superior court or of a criminal court, shall have power to bail persous committed to prison charged with crime in all cases; any justice of the peace or chief magistrate of any incorporated city or town shall have the same power m all cases where the punishment is not capital. ' Sec. 1 1G2. When a prisoner is bailed, the recognizance taken by the officer sliall be filed with the clerk of the court. 18G8-'9, c. 178, sub chap. 3, s. 31. Whenever any prisoner shall be bailed by any officer under the precedmg section, such officer shall imme- diately cause the recognizance taken by him to be filed with the clerk of the court of the county to which the prisoner is recognized. Sec. 1163. What every commitment shall state. 1868-'9 c. 178, sub chap. 3, s. 33. * Every commitment to prison of a pereon charged with crime shall state: (1) The name of the person charged; (2) The character of the offence with which he is charged ; (3) The name and office of the magistrate committing (4) The manner in which he maybe discharged- if upon giving recognizance or bail, the amount of said re- cognizance, the condition on the performance of wiiich it shall be discharyod, and the ])ersOns or magistrate be- fore whom the bail may justify; Chap. 26.] CRIMINAL PEOCEEDINGS. 465 (5) The court before which the prisoner shall be sent for triah State V. James, 78—455. Sec. 1164:. To what jail prisoner shall be committed. 1868-'9, c. 178, sub chap. 2, s. 33. All persons committed to prison before conviction shall be committed to the jail of the county in which the ex- amination is had, or to that of the county m which the offence is charged to have been committed: Provided, if the jails of these counties are unsafe, or injurious to the health of prisoners, the committing magistrate may- commit to the jail of any other convenient county. And every sheriff or jailer to whose jail any person shall be committed by any court or magistrate of competent jurisdiction, shall receive such prisoner and give a receipt for him, and be bound for his safe-keeping as prescribed by law. Sec. 1165. Fugitives from justice, who may arrest. 1868-'9, c. 178, sub chap. 3, s. 34. Any justice of the supreme court, or any judge of the superior court or of any criminal court, or any justice of the peace, or mayor of any city, or chief magistrate of any incorporated town, on satisfactory information laid before him that any fugitive in the state has committed, out of the state and within the United States, any offence which, by law of the state in which the offence was com- mitted, is punishable either capitally or b> imprisonment for one year or upwards in any state prison, shall have fuU power and authority, and is hereby required to issue a warrant for said fugitive and commit him to any jail within the state for the space of six mouths, unless sooner demanded bv the public authorities of the state wherein the offence may have been committed, pursuant to the act of congress in that case made and provided: if no demand be made within that time the said fugitive shall be liberated, unless sufficient cause be shown to the contrary. Price V. Graham, 3 Jon., 546; In re. Hughes, Phil., 57; State v. Shclton, 79—605. Sec. 1166. Magistrate to keep record of the proceedings and transmit copy to the governor. 1868-'9, c. 178, sub chap. 3, s. 35. Every magistrate committing any person under the preceding section, shall keep a record of the whole pro- 466 CRIMINAL PROCEEDINGS. [Chap. 26. ceedmgs before him, and immediately transmit a copy thereot to the governor for such action as he may deem fit therem under the law. Sec. 1167. Duty of the governor. 1868-'9, c. 178 sub chap. 3, s. 30. The governor shall immediately inform the governor of tne state or territory in which the crime is alleged to have been committed or the president of the United States, if It be alleged to have been committed within the District ot Columbia, of the proceedings had in such case. Sec. 1168. Every sheriff or jailer shall surrender the lugitive upon the order of the governor. 1868-'9 c 178, sub chap. 3, s. 37. ' Every sheriff or jailer, in whose custody any person so committed shall be, upon the order of the governor, shaU surrender him to the person named in such order. Sec. 1109. Governor may employ agent or offer reward tor the apprehension of fugitives charged with felony. R. C, c. 35, s. 4. 1800, c. 561. 1806, c. 28. 1868- '9, c. 52. 1870-'l, c. 15. 1871-'2, c. 29. The governor, on information made to him of any per- son having committed a felony or other infamous crime within the state, and of having fled out of the iurisdic- tion thereof, or who conceals himself within the state to avoid arrest, or who having been convicted has escaped and cannot otherwise be apprehended, may either employ a special agent, with a sufficient escort, to pursue and ap- prehend such fugitive, or issue his proclamation, and therein offer a reward, not exceeding four hundred dol- lars, according to the nature of the case, as in his opinion may be sufficient for the purpose, to be paid to him who shall apprehend and deliver the fugitive to such person and at such place as in the proclamation shall be directed • and he may from time to time issue his warrants on the state treasurer for sufficient sums of money for such pur- pose. ^ Sec. 1 1 70. Governor may draw on the state treasurer for money necessary to pay expenses of arresting fugitives from justice. 1870-'l, c. 82. In all cases where the governor of the state has made a requisition on the governor of another state for any tugitive from justice and has sent an agent to receive said fugitive, It shaU be lawful for the governor to issue a Chap. 26.] CRIMINAL PROCEEDINGS. 467 warrant on the state treasurer for the amount of money necessary to pay the expenses of said agent and other costs in the arresting of said fugitive from justice, to be paid by the treasurer of the state. Sec. 1171. Of searcli waiiauts. 1868-'9, c. 178, subchap. 3, s. as. If any credible witness shall prove, upon oath, before any iustice of the peace, or mayor of any city or chief magistrate of any incorporated town, that there is a reasonable cause to suspect that any person has m his possession, or on his premises, any property stolen, or any false or counterfeit coin resembling, or apparently in- tended to resemble, or pass for, any current coin of the United States, or of any other state, province or country, or any instmment, tool or engine whatsoever, adapted or intended for the counterfeiting of any such coin; or any false and counterfeit notes, bills or bonds of the bnited States, or of the state of North Carolina, or of any other state or country, or of any county, city or incorporated town; or any instrument, tool or engine whatsoever, adapted or intended for the counterfeiting of such note, bill or bond, it shall be lawful for such justice, mayor or chief magistrate of any incorporated town, to grant a warrant, to be executed within the hmits of his county or of the county in which such city or mcorporated town is situated, to "any proper officer, authorizing him to search for such property, and to seize the same, and to arrest the person having in possession, or on whose premises may be found, such stolen property, counter- feit coin, counterfeit notes, bills or bonds, or the instru- ments, tools or engines for making the same, and to bring them before any magistrate of competent jurisdiction, to be dealt with accordmg to law. Sec. 1172. Searcli warrant, its form and the proceedings thereon. 1868-'9, c. 178, sub chap. 3, s. 39. Such search warrant shall describe the article to be searched for with reasonable certainty, and by whom the complaint is made, and in whose possession the article to be searched for is supposed to be; it shall be made return- able as other criminal process is by law required to be, and the proceedings thereupon shall be as is required m other cases of criminal complaint. 4e8 CEIMINAL PEOCEEDINGS. [Chap. 26. Sec. 1173. Of costs in proceedings before judges and niajristrates. l»08-'9, c. 17«, sub chap. 2, s. 40. In all cases of criminal complaints before justices of the supreme court, judges of the superior and criminal courts, jiistices of the peace and other magistrates hav- ing jurisdiction of such complaints, the olKcers entitled iT u .V^^^^'l^.. ^^f 1°'' ^^^""^g °^' executing process, s^ll not be entitled to demand them in advance Such othcers shall indorse the amounts of their respective fees on every process issued or executed by them, and return the same to the court to which it is returnable. State V. Colbert, 75—368. Sec. 1174. Persons to be imprisoned in county ij»il- ex- ception as to a sheritr. K. c, c. 35, s. 3. 5 Men' IV C. lO. Xicu. iv. No person shall be imprisoned by any judge, court, jus- tice of the peace, or other peace officer, except in the comnionjiil of the county: Provided, that whenever the sheriff of any county shall be imprisoned, he may be imprisoned in the jail of any adjoining county. Sec. 1175. No person to be arrested on a presentment nor tried, except on indictment. It. C. c 35 s e trans- ferred to succeedinj? court whether inferior or su- perior. 1879, c. 302, s. 3. All such cases pending in either the inferior or the su- perior court of any county which shall not have been tried and determined at any term of said inferior or su- perior court shall be transferred by the clerk of such court to the next succeeding court whetlier the same be an inferior or superior court, and shall be proceeded in the same manner and with like power and jurisdiction to said court (to which they are transferred) to hear, try and determine as if the bill of indictment therein had 488 CEIMINAL PEOCEEDINGS. [Chap. 26. been originally found by the grand jury of the same' Provided, that this section shall apply only to those cases in which the defendants or accused are confined in jail: Provided further, that in such cases the handing over of the papers by the clerk of one court to the cleii of the other court where the trial is to take place, and the dock- etmg of the cases, with the receipt of the latter on the docket of the former, shall be deemed and held a suf- ficient transfer of any such case from one court to an- other. State V. Mott, 86—631. Sec. 1243. The execution of capital offenders to be pri- vate, unless the county commissioners shall otherwise order. 1868, c. 21, ss. 1, 2. 1879, c. 221. As the ends of justice, public morals and the preserva- tion of order, demand that the execution of all capital offenders should be made private and invested with the solemnity appropriate to the final act of penal law, any sheriff on whom shall devolve the execution of a sentence of death on a public offender, shall be required to pro- vide for the execution of such criminal within the jail yard inclosure, and as much removed from public view as the means within his control will allow: Provided, that, for reasons which may be deemed good and suf- ficient, the board of county commissioners may other- wise order. Sec. 1244. SheriflF may admit to witness the execution two physicians and necessary assistants. 1868, c. 21, s. 3, The sheriff, after having provided for the private exe- cution of the criminal, may admit by ticket, in addition to the required guard, two physicians and necessary as- sistants, not more than thirty-six nor less than eighteen respectable citizens, to witness for the state, the due ob- servance of the law. Chap. 2T.] DEEDS AND CONVEYANCES. 489 CHAPTEE TWENTY-SEVEN. DEEDS AND CONVEYANCES. Section. 1345. Deeds proved and registered in county where land lies within two years, good without liv- ery. 1246. Deeds, how proved. (1) Where grantor, &c., reside in county where land is sit- uate. (2) Where grantor, &c., reside in the slate, but not in the county where the land is sit- uate. (3) When the grantor, maker or subscribing witness resides out- side the state, but within the United States. (4) Where grantor and witness live out of the United States. (5) Privy examination of married women, by whom taken and how certified. (6) Private examination to be required if married woman be a party. (7) Form of the certificate. (8) When grantor or witness out of the state. (9) Where no witness, and the maker non-resident or dead. (10) Where witness is dead. 1247. Seal of court not put to pro- cess or probate, when. 1248. How proved when land lies in two or more counties. 1249. Powers of attorney, how proven in the state, how proved out of the state. 12.50. Deed to be proved before com- missioners of affidavits in other states. Section. 1251. Copies of registered deeds evi dence unless original required. 1252. Deeds of gift to be proved and registered. 1253. Deeds, &c., proved and regis- tered in wrong county, copy may be registered in proper county. 1254. Mortgages and trust deeds good against creditors only from registration. 1255. Property of corporations not exempt from certain liabilities on account of mortgages. 1256. Deeds by husband and wife, how executed, proved and registered. 1257. Conveyance under power of attorney from husband and wife tu pass lands. 1258. The clerk may issue commis- sions for taking probate in another state. 1259. Certain probates and registra- tions validated. 1360. Certain probates and registra- tions validated. 1261. Applicable to all conveyances. 1262. Registration of deeds hereto- fore proven before notary or clerk of superior court of another state validated. 1363. Evidence under preceding sec- tion. 1364. Conlracts to sell land and leases required to be in writ- ing, must be registered. 1265. Infant trustees, how to con- vey. 1366. Errors in registration of deeds, 490 DEEDS AND CONVEYANCES. [Chap. 27. Section. ifec, corrected on petition; appeal allowed. 1267. Deeds, how made when sheriff who sells dies or removes from the state. 1268. Witnesses to deeds may be summoned to prove them. 1269. Marriage setllemcnts regis- tered, otherwise void as lo creditors. 1270. What marriage settlements good against creditors, how deficiency in property settled, made up. 1371. Deeds of trust and mortgages. how discharged and released. 1272. Mortgages to secure purchase money need not be executed by wife. 1273. Form of chattel mortgage. Section. 1274. Deed of trust under preceding section good when registered. 1275. Conditional sale of personal property to be in writing and registered. 1276. In what cases clerks of the superior court to appoint trustee. 1277. Consolidation of surveys; pro- viso; common surveys may be recorded. 1278. Donations to persons while in slavery. 1279. Time extended for registering grants of land and other in- struments. 1280. All conveyances of real estate to be construed to be in fee, unless otherwise expressly set forth. Sec. 1245. Deeds proved and registered in oouiity Avhere land lies within two years, good without livery. 29 Ch. II., c. lO, s. 2. R. C, o. 37, s. 1. 171.5, c. 7, s. 1. 1756, 0. 58, s. 3. 1777, (. 115, s. 2. 1818, e. 063, s. 2. No conveyance of land nor contract to convey, nor lease of land for more than three years, shall be good and available in law unless the same shall be acknowl- edged by the grantor or ^jroved on oath by one or more witnesses in the manner hereinafter directed, and regis- tered in the county where the land shall lie within two years after the date of the said deed; and all deeds so executed and registered shall be valid, and pass estates in land without livery of seizin, attornment or other ceremony whatever. Morris v. Ford, 2 Dev. Eq., 412: Walker v. Coltraine, 6 Ired. Eq., 79; Doak V. State Bank, 6 Ired., 309; Osborne v. Ballew, 7 Ired., 415; Wals- ton V. Brasswell, 1 Jon. Eq., 137; Freeman v. Hatley, 3 Jon., 115; Wil- liams v. Griffin, 4 Jon,, 31; Johnson v. Pendcrgrass, 4 Jon., 479; Latham v. Bowcn, 7 Jon., 337; Salms v. ]\Iartin, 63—608; Linker v. Long, 64—296; l.ievy V. Griffls, 65 — 236 ; Ho^an v. Strayhom, 65 — 279 ; Ivey v. Granberry, 66—223; Isler v. Foy, 66—547; Paul v. Carpenter, 70—502; Starke v. Etheridge, 71— 240; Holmes v. Mar.-hal, 72—37; Wilson v. Sparks, 72— 208; Triplett v. Withcrspoon, 74—475; McMillan v. Edwards, 75— 81 ; Buio V. Carver, 75 — 559; Hare v. Jernigan, 76 — 471; Mayo v. Jones, 78 — 402; Riggan v. Green, 80—336; King v. Portis, 81—382; Henley v. Wil- Chap. 27.] DEEDS AND CONVEYANCES. 491 son, 81—405; Mauney v. Crowell, 84— 314; Davis v. Inscoe. 84—396; Mosely v. Mosely, 87—69; Love's Ex'rs v. Harbiu, 87—249. Sec. 1246. Deeds, how proved. K. C, c. 37, s. 8. C. C. P s. 439. 1866, c. 30, s. 1. 1868-'9, c. 277, s. 15. 1876-'7, c. 161. 1879, c. 22. 1879, c. 77. 1879, c. 128. 1881, c. 334. 1881, c. 341. All deeds conveying lands, letters of attorney or other instruments requiring registration must be offered for probate or a certified copy thereof must be exhibited be- fore the clerk of the superior court of any county in the manner following: Johnson v. Pendergrass, 4 Jon., 479. (1) WHERE GRANTOR, &C., RESIDE IN THE COUNTY WHERE LAND IS SITUATE. When the grantor or maker, or subscribing witness, resides in the county wherein the land lies, the deed, let- ter of attorney or other instrument requiring registi-a- tion must be acknowledged by such grantor or maker, or proved by the oath of such subscribing witness, before the clerk of the superior or of the inferior court, or be- fore a notary public or justice of the peace of such county, who shall enter his certificate thereon; and such deed, "letter of attorney or other instrument with the certificate thereon, on exhibition to the clerk of the su- perior court of said county, shall, if in due form, be ad- mitted by him to probate and ordered to be registered with the certificates thereto attached. Starke v. Etheredge, 71—240; Holmes v. Marshall, 72—37; Rollins v. Henry, 78—342 ; Mayo v. Jones, 78—402 ; Black v. Justice, 86—504. (2) WHERE GRANTOR, &C., RESn)E IN THE STATE, BUT NOT IN THE COUNTY WHERE THE LAND IS SITUATE. When the grantor, maker or subscribing witness re- sides in the state, but not in the county wherein the land lies, such deed, letter of attorney or other instrument requiring registration must be acknowledged by such grantor or maker, or proved by the oath of such sub- scribing witness before a judge of the supreme or of the superior court, or before the clerk of the superior court, or the inferior court, or a notary public or justice of the peace of the county wherein the grantor, maker or sub- scribing witness resides; and if such acknowledgment or proof shall be had before a justice of the peace, the clerk of the superior court of the county of such justice shall 492 DEEDS AND CONVEYANCES. [Chap. 27. certify upon such deed, letter of attorney or instrument the fact of such acknowledgment or proof, and the fur- ther fact that such justice was at the time of taking such acknowledgment or proof an acting justice of said county. And the clerk of the superior court of the county wherein the land lies, upon the exhibition to him of such deed, letter of attorney or other instrument, to- gether with the said certificates, or with the certificate of a judge of the supreme or of the superior court, or no- tary, shall adjudge the said deed, letter of attorney or other instrument to be duly acknowledged or pi-ovei^ in the same manner as if taken or made before him, and order the same, with his certificate and the other certifi- cates attached, to be registered- Holmes V. Marshall, 72—37. (3^ WHEN THE GRANTOR, MAKER OR SUBSCRIBING WITNESS RESIDES OUTSIDE THE STATE, BUT WITHIN THE UNITED STATES. Where the grantor, maker or subscribing witness re- sides outside of the i-.tate, the deed, letter of attorney or other instrament requiring registration in the state may be acknowledged or proved by the grantor, maker or subscribing witness before a judge, clerk of a court of record, notary public having notarial seal, mayor of a city having a seal, or justice of the peace of the state in which said grantor, maker or subscribing witness resides; and the certificate of said judge, clerk of a court of rec- ord under the seal of said court, mayor of a city or notary public under their respective seals, touching the acknowl- edgment or proof of such persons shall, if adjudged to be in due form by the clerk of the superior coui't of the county in which the land is situate, or the letter of attor- ney or other instrument is required to be registered, be ordered by said clerk to be registered as deeds made by grantors and makers residing within the state are re- quired by law to be registered. If the acknowledgment or proof of the execution of said deed, letter of attorney, or other instrument requiring registration, be had before a justice of the peace of another state, then the clerk of the court of record of the county in which said justice resides shall certify under the seal of his court that said justice was at the time of taking the said acknowledg- ment or proof, an acting justice of the peace of said county and state, and that the signature of said justice was in his own proper handwriting; and if said certificate Chap. 27.] DEEDS AND CONVEYANCES. 493 shall be adjudged to be in due form by the clerk of the superior court of the county in which the land is situate, or letter of attorney, or other instrument, is required to be registered, then the said clerk of said superior court shall order the same to be registered, as deeds made by grantors or makers residing within this state are required to be registered. Wbitsett V. Forehand, 79—230; Todd v. Outlaw, 79—235. (4) WHERE GRANTOR AND WITNESS LIVE OUT OF THE UNITED STATES. Where the grantor or maker and the subscribing wit- ness reside beyond the limits of the United States, the deed or other instrument may be personally acknowl- edged by such grantor or maker, or proved on the oath of such subscribing witness, before the chief magistrate of any city in the country where the grantor or witness is resident; or before any ambassador, minister, consul, or commercial agent of the United States, and where such proof, or acknowledgement is certified under the corporate seal of such chief magistiate, or imder the offi- cial seal of such ambassador, minister, consul, or com- mercial agent, and where such certificate is affixed to the deed or other instrument, and the same is exhibited be- fore the clerk of the superior court having jurisdiction, he shall adjudge that such deed, or other instrument, is duly proved or acknowledged, and order it, with his cer- tificates and the accompanying certificates, to be regis- tered. Paul V. Carpenter, 70—503; Starkie v. Etheridge, 71—240. (5) PRIVY EXAMINATION OF MARRIED WOMEN, BY WHOM TAKEN AND HOW CERTIFIED. When the privy examination of any married woman is necessary to be taken, the persons authorized to take the acknowledgment of any grantor or maker or proof of the execution of any deed, letter of attorney or other instrument requiring registration, are hereby empowered to take the privy examination of any married woman touching her free assent to such deed, letter of attorney or other instrument to which her assent is or may be necessary, and to certify the fact of such privy examina- tion in the same manner as they are authorized to take and certify the acknowledgment of any grantor or maker 49i DEEDS AND CONVEYANCES. [Chap. 27. of such deed, letter of attorney or other instrument. And the clerk of the superior court of the county in which the land is situate or of the county where the deed, letter of attorney or other instrument is required to be registered, upon the exhibition of said letter of attorney or other instrument, with the certificates, to him, if he shall adjudge the same to be in due form, shall admit the said deed, letter of attorney or other Mistru ment to probate and order it with his certificate and the iccompanying certificates to be registered. Wright V. Player, 73—94; Clayton v. Rose, 87—106. (6) PRIVATE EXAiriNATION TO BE REQUIRED IP MARRIED WOMAN BE A PARTY. When the pi'oof or acknowledgment of a conveyance, power of attorney or other instrument concerning the interest of a married woman in lands, is taken as in this chapter directed, no clerk of the superior court shall adjudge such conveyance or other instrument to be duly proved or acknowledged unless the private examination of such married woman is taken according to the laws of this state and a certificate thereof attached to the deed or other instrument. (7) FORM OF THE CERTIFICATE. For the purposes of this chapter the certificates of pi-o- bate or acknowledgment shall be substantially as fol- lows: State of } County. )" I, A. B., (here give name of oiBcer, as the case may be,) do hereby cer- tify that (here give name of granior, and if acknowledged by wife, her name, and add Iiis toife) personally appeared before me this day and acknowledged the due execution of the foregoins (or annexed) deed of conveyance (or other instrument) and (if the w'ife is a signer) the said (licre give wife's name) being by me privately examined, scjiarate and apart from her said husband, touching her voluntary execution of the same, doth slate that she signed the .same, freely and vohiularily, without fear or compulsion of her said husband orany'otlier person, and that she doth still volunlarily assent therelo. Witness my hand and seal (private or olHcial, as the case may be) this (day of month) A. D. (year). Signature of officer, [seal]. And when such proof or acknowledgment has been had or taken by a justice of the peace, the clerk of the court of i-ecord shall use substantially the following form of certificate: Chap. 27.] DEEDS AND CONVEYANCES. 495 State of '. County. \ The foreffoing (or annexed) certificate of A. B., a justice of the peace of =,. . !=. county, is adjudged to be correct. Let tlie deed (or other insVrument), with the certificates, be registered ' Signature of the clerk. [SEAL.J (of the court.) If the acknowledgment, or proof, of privy examina- tion be taken out of the county where the land is situate or the instrument is required to be registered or beyond the limits of the state, then in addition to the hrst certiti_ cate before mentioned, tbe clerk of the superior court ot the countv, or the clerk of the court of record m the county and state in which the person taking the exanim- ation, acknowledgment or proof, resides, shall certify substantially as follows: State of. I hereby certify that A. B. (in.sert the name of the officei taking the proofs &c.) was, at the time of signing tlie foregoing certificate, a (justice of the peace) in and for the county of and state ot. ........ ., and tliat his signature thereto is in his own proper liandwriting. In witness whereof I hereunto set my hand and seal of office this aay oi (Signature of clerk.) (Seal of ofBce.) (8) MTIEN GRANTOR OR WITNESS OUT OF THE STATE. Whenever the subscribing watness to any instrument required or allowed to be registered, shall be a non-resi- dent or shah be dead, and the maker shall also be a non- resident or dead, the proof of the handwriting of such witness or that of the maker before the clerk of the su- perior court of the county where the instrument is sought to be registered, shall be sufficient evidence of the exe- cution thereof to admit the same to registration, and in case such maker shall have subscribed with a mark only, the proof of the signature of such witness shaU be suth- cient. Black V. Justice, 86—504; Love's Ex'rs v. Harbin, 87—349. (9) When no witness and the maker non-resident OR dead. Whenever any such instrument shall not have a wit- ness, and the maker thereof shall be non-resident or dead, 496 DEEDS AND CONVEYANCES. [Chap. 27. proof of his handwriting shall be suflScient to admit the same to registration. Rollins V. Henry, 78-342; Miller v. Hahn, 84—226; Black v. Justice, 86—504; Love's Ex'rs v. Harbin, 87—349. (10) WHERE WITNESS IS DEAD. In all cases of the probate of any deed or other instru- ment required or allowed to be registered, having a sub- scribing witness who may be dead, satisfactory proof of his handwriting or of the handwriting of the grantor or maker when there is no subscribing witness shaU be deemed sufficient proof for the purpose of allowing the registration thereof. Rollins V. Henry, 78— 343; Black v. Justice, 86—504; Love's Ex'rs v Harbin, 87—349. Sec. 1247. Seal of court not put to process or probates, when. B. C, c. 31, s. 120. Where the clerk of the superior court issues precepts or process to the county of which he is clerk, or takes the proof or acknowledgment of deeds or other instruments authorizing the registration thereof or orders the regis- tration of such deed or instrument in such county, he shall not annex the seal of the court thereto. Sec. 1248. How proved when land lies in two or more counties. C. C. P., s. 430. Where real estate is situate in two or more counties, probate of the deed or other instrument conveying or con- cerning the same, made before the clerk of the superior court of either of said counties, is sufficient. Sec. 1249. Powers of attorney, how proved in the state, how proved out of the state. K. C, c. 37, s. 14. 1798, c. 514, ss. 3, 4. 1846, c. 68,.ss. 2, 3. Every power of attorney, wherever made or concern- ing whatsoever matter, may be registered on acknowl- edgment or probate of the same in the county wherein the property or estate may be situate, if it concern the conveyance thereof; and if the same do not concern the conveyance of any estate or property, then in the county where the attorney may reside or the business is to be transacted. And such powers of attorney as do not con- cern the conveyance of land by a feme covert, whereof it may be necessary to take the acknowledgment or probate Chap. 27.] DEEDS AND CONVEYANCES. 497 out of the state, may, besides the other modes provided in this chapter, be acknowledged or proved before any mayor or presiding magistrate of any city or a clerk of a court of record; and such acknowledgment or probate being duly taken and certified under the seal of office of such officer shall, on the same being produced before the clerk of the superior court of the proper county, be or- dered by him to be registered, and shall be registered. Freeman v. Hatley, 3 Jon., 115. Sec. 1250. Deed to be proved before commissioners of affi- davits ia other states. C. C. P., s. 429. 1879, c. 77. Where the acknowledgment or proof of any deed or other instrument is taken or made in the manner directed by the laws of this state, before any commissioner of affi- davits for the state of North Carolina, appointed by the governor thereof, in any of the states or territories of the United States or in the District of Columbia; and where such acknowledgment or proof is certified by such com- missioner, the clerk of the superior court having juris- diction, upon the same being exhibited to him, shall ad- judge such deed or other instrument to be duly acknowl- edged or proved in the same manner as if made or taken before him. Every clerk of a court of record in any other state shall have as full power as a commissioner of affidavits and deeds as is vested in regularly appointed commissioners of affidavits and deeds of the state. Starke v. Etlieridge, 71—240; Todd v. Outlaw, 79—235; Love's Ex'rs v. Harbin, 87—249. Sec. 1251. Copies of registered deeds evidence unless original required. K. C, c. 37, s. 16. 1846, c. 68, s. 1. The registry or duly certified copy of the record of any deed, power of attorney or other instrument required or allowed to be registered or recorded, may be given in evi- dence in any court, and shall be held to be full and suffi- cient evidence of such deed, power of attorney or other instrument, although the party offering the same shall be entitled to the possession of the original, and shall not account for the non production thereof, unless by a rule cr order of the court, made upon affidavit suggesting some material variance from the original in such registry or other sufficient grounds, such party shall have been previously required to produce the original, in which case the same shall be produced or its absence duly accounted for according to the course and practice of the court. 498 DEEDS AND CONVEYANCES. [Chap. 27. Bohanan v. Shelton, 1 Jon.. 370; Latham v. Bowen, 7 Jon., 337; Short V. Cinrie, 8 Jon., 42; Hughes v. Debnam, 8 Jon., 137; Gudger v. Hensley, 8S-481; Mauney V. CjowcII, 84— 314; Moore v. Hill, 85— 218; Love'sEx'rs V. Harbin, 87—249. Sec. 1252. Deeds of gift to be proved and registered. R C.. c. ,37, .s. 18. 1780, c. .315, s. 2. All deeds of gift of any estate of whatever nature shall withm two years after the making thereof be proved in due form and registered, or otherwise shall be void. Sec. 1253. Deed.s, &c., proved and registered in wrong county, copy may be registered in proper county. 1858 -'O, c. 18,."-. 2. A duly cejtified copy of any deed or writing required or allowed to be ]-egistered, may be registered in any county; and the registry or duly certified copv of any deed or writing when registered in the county where the land is situate may be given in evidence in any court of the state. Sec. 1254. Mortgages and trust deeds good against credi- tors only from registration. K. C., c. 37, s. 22. 18"9 c. 20, s. 1. No deed of trust or mortgage for real or personal estate shall be valid at law to pass any property as against creditors or purchasers for a valuable consideration from the donor, bargainor or mortgagor, but from the regis- tration of such deed of trust or mortgage in the county where the land heth; or in case of personal estate where the donor, bargainor or mortgagor resides; or in case the donor, bargainor or mortgagor shall reside out of the state, then in the county wheve the said pei-sonal estate, or some part of the same, is situate; or in case of choses in action, where the donee, bargainee or mortgagee re- sides. Smith V. Washington, 1 Dev. Eq., 318; Skinner v. Cox, 4 Dev., 59; Mdore y. Collins, 4 Dev., 384; JMcKiunon v. McLean, 2 D. & B., 79^ Metts V. Bright, 4 D. & B., 173; Norwood v. Marrow, 4 D. & B., 442; Saunders v. Fenell, 1 Ired., 97; Halcombe v. Ray, 1 lied., 340; Dewey V. Litllejohn, 2 Ired. Eq., 49.5; Doak v. Slate Bank, 6 ired.. 309; DeCourccy, Lafourcade & Co. v. Barr, Busb. Eq., 181; Leggett v. Bullock, Busb., 283- Barnett v. Barnett, 1 .Jon. Eq., 221; Simpson v. Morris, 3 Jon., 411; Bar- rett V. Cole, 4 Jon., 40; Green v. Kornegay, 4 Jon., 66; Dukes v. Jones, 6 Jon., 14; Newell v. Taylor, 3 Jon., 374; Johnson v. Malcolm, 6 Jon. Eq., 120; Parker V. Scott, 64—118; McCoy v. Wood, 70—125; Robinson v. Wil' lougliby, 70—358; Edwards v. Thompson, 71-177; Starke v. Etheridge, 71 Chap. 27.] DEEDS AND CONVEYANCES. 499 —210; Moore v. Ragland, 74—348; Blevins v. Barker, 75—436; Beaman v. Simmons, 76— 43; King v. Portis, 77—35; Capehart v. Biggs, 77—261; Puiuell V. Vaughan, 77— 268; Todd v. Outlaw, 79— 235; Harris v. Jones, 83—317; Moring v. Dickerson, 85—466. Sec. 1255. Property of corporations not exempt from certain liabilities on account of mortgages. 1879, c. 101. Mortgages of incorporate companies upon their prop- erty or earnings, whether in bonds or otherwise, here- after issued, shall not have power to exempt the pi-operty or earnings of such incorporations from execution for the satisfaction of any judgment obtained in courts of the state against such incorporation for labor performed nor for material furnished such incorporation, nor for torts committed by such incorporation, its agent or employees, whereby any person is killed or any person or property injured, any clause or clauses in such mortgage to the contrary notwithstanding. Sec. 1256. Deeds by luisbancl and wife, how executed, proved and registered. C. C. P., s. 429, sub s. 6. 1868-'9, c. 277, s. 15. Every conveyance, power of attorney or other instru ment affecting the estate, right or title of any married woman in lands, tenements or hereditaments, must be executed by such married woman and her husband; and due proof or acknowledgment thereof must be made as to the husband and as to the wife; and the privy exami- nation of the wife touching her voluntary assent to such conveyance, power of attorney, or other instrument re- quiring registration, shall be taken separate and apart from her liusband, and such acknowledgment or proof and privy examination shall be taken and certified as hereinbefore provided in this chapter. And such convey- ance, power of attorney, or other instrument, shall be valid in law to pass the estate, right and title of tlie wife to all such lands, tenements or hereditaments so con- veyed or to be conveyed. Green v. Branton, 1 Dev^ Eq., 500; Askew v. Daniel, 5 Ired. Eq., 321; Keerns V. Peeler, 4 Jon., 226; Woodburn v. Gorrcll, 66—82; Hairis v. Jenkins. 72— 186; Rountree v. Gay, 74—447; Towles v. Fisher, 77— 438; Johnts V. Colien, 82-75; HoUinosworth v. Hi;rman, 83—153; Scott v. Battle, 85—184; Holmes v. Holmes, 86—205 ; Clayton v. Rose, 87—106. 500 DEEDS AND CONVEYANCES. [Chap. 27. Sec. 1257. Conveyance under power of attorney from husband and wife to pass lands. K. C, c. 37 s. 11 1798, C.510. All conveyances which may be made by any person under a power of attorney from any feme covert by her freely executed with her husband, shall be valid to all intents and purposes to pass the estate, right and title which said fenie covert may have in such lands, tene- nients, and hereditaments as are mentioned or included in such power of attorney. Sec. 1258. The clerk may issue commissions for taking probate in another state. 1869-'70, c. 185, s. 1. Whenever it shall appear to the clerk of the superior court of any county that any person non-resident of this state is desirous of acknowledging a power of attorney, deed or other conveyance touching any real estate situ- ated in the county of said clerk, he shall issue a commis- sion to a commissioner for receiving such acknowledg- ment, or taking such proof, and said commissioner may likewise take the acknowledgment and privy examina- tion of a man-ied woman separate and apart from her husband, touching her assent to any power of attorney, deeds or other conveyances, touching real estate in said county. The commissioner shall make certificate of the acknowledgments or proof and privy examination made by him, and shall return the eame to the clerk of the superior court, whereupon he shall adjudge that such conveyance, power of attorney or other instrument is duly acknowledged or proved, and that such examination is in due form, and shall order the same to be registered. Sec. 1259. Certain probates and registrations validated. 18G9-'70, c. 185, s. 2. All probates, examinations and registrations hereto- fore had in accordance with the two preceding sections are declared valid and sufficient. Sec. 1 260. Certain probates and registrations validated. 1871-'2,c. 200, s. 1. Wherever the judges of the supreme or the superior court, or the deputy clerks of the superior court, mis- taking their powers, have essayed previously to the twelfth day of February, one thousand eight hundred and seventy-two, to take the probate of deeds and the privy examination of femes covert, whose names are signed to such deeds, and have ordered said deeds to Chap. 27.] DEEDS AND CONVEYANCES. 501 registration, and the same have been registered, all sucli probates, privy examinations and registrations so taken and had, shall be as valid and binding to all intents and purposes as if the same had been taken before or ordered by the clerk of the superior court, or other proper omcer having jurisdiction thereof. Sec. 1261. Applicable to all conveyances. 1869-'70, c. 185. The two preceding sections shall apply to all convey- ances of whatever kind required or allowed to be regis- tered. Holmes v. Marshall, 72—37. Sec. 1262. Registration of deeds heretofore proven be- fore notary or clerk of superior court of another state validated. 1883, c. 129, s. 1. All deeds and conveyances made for lands in this state, which have previous to February fifteenth, one thousand eight hundred and eighty-three, been proven before a notary public or clerk of the superior court of any other state, and such proof having been duly certified by such notary or clerk taking the proof as aforesaid, under the official seal of such notary public or superior court, and such deed or conveyance so proven and certified, with the certificate of having been registered in the office of register of deeds in the book of records thereof for the county in which such lands were situate at the time of the regis- tration of such deed or conveyance, shall be sufficient registration of the same, and such proof and registration shall be adjudged good and vaUd in law. Sec. 1263. Evidence under preceding section. 1883, c. 129, s. 2. All deeds and conveyances proven, certified and regis- tered as aforesaid, or certified copies of the same, may be used as evidence of title for the lands on the trial of any suit in any of the courts of this state where title to the lands shall come in controversy, and further registra- tion of such deeds and conveyances so proven and regis- tered shall not be necessary. Sec. 1264. Contract to sell land and leases required to be in writing, must be registered. K. C, c. 37, s. 26. All contracts to sell or convey any lands, tenements or hereditaments, or any interest in or concerning them, and all leases required to be put in writing upon due 502 DEEDS AND CONVEYANCES. [Chap. 27. proof or ackuowlcdgment thereof in the manner in thi- chapter provided for the conveyance of lands, shall be registered ni the proper county within two years from the date of such contracts or leases Teaguev.Do^ns, 69-280; Edwards v. Thompson, 71-177; Green v RadroadCo.. 73-524; Toddy. Outlaw. 79-235; Mauney v. Crowell 8^ Sec. 1265. Infant trustees, how to convey. R. C. c 37 s 27. 1821,c. 1116,ss. 1, 2. ^,<^.^<,s. Wheiiever any infant shall be seized or possessed of any estate whatever m trust, whether by way of mort- gage or othervyise, for another person who may be enti- tled in law to have a conveyance of such estate, or may be declared to be so seized or possessed, in the course of any proceeding ni the superior court, the court may de- cree that the intant shall convey and a.ssure such estate m such manner as it may direct, to such other person' and every conveyance and assurance made in puiWiance of such decree shall be as effectual in law as if made by a person of full age. -^ Sec. 1266. Errors in registration of deeds, &c., corrected on petition; appeal allowed. R. C, c. 37, s. 28 1 790 c. 326, ss. 2, 3, 4. ' ' Everv person who discovers that there is an error in the registration of his grant, conveyance, bill of sale or other instrument of writing, may prefer a petition to the clerk of the superior court of the county in which said writing IS registered, in the same manner as is directed tor petitioners to correct errors in grants or patents, and It on hearing the same before said clerk, it ai)pears that errors have been committed, the clerk shall order the register of the county to correct such errors and make the record conformable to^ the original: Pruvkled that such petitioner shall have notified his grantor and everv person claiming title to, or having lands adjoining those mentioned in the petition, thirty days previous to pre- ferring the same: Pmvidecl further, that any person dis- satisfied with the judgment may appeal to the iudge of tlie superior court as in other cases. Jon«.s V, Physioc, 1 D. & B., 173; Oldham v. Bunk, 85-240. Sec. 12C7. Deeds, Low made when slierifl- wlio sells dies or^ronioves from the state. R. C, c. 37, s. 30. 1838, Whenever any sheriff or coroner in virtue of his office Chap. 27.] DEEDS AND CONVEYANCES. 503 shall have sold any real or personal estate, and shall go out of office before executing a proper conveyance there- for, he may execute <;he same after his term of office shall have expired ; and whenever such officer shall die or re- move from the state before executing the same, his suc- cessor in office shall execute such conveyance, and all conveyances thus executed shall be asvaJid as if made by the sheriff or coroner who may have made the sale: Pro- vided, that nothing herein contained shall be construed to apply to the execution of conveyances of lands sold for taxes. Harris v. Irwin, 7 Ired.,432; Islcr v. Andrews, 66—553; Taylor v. Alien, 67—346; Millsaps v. McCormick, 71—531; Edwards v. Tipton, 77—323. Sec. 1268. Witnesses to deeds maybe summoned to prove them. K. C, c. 37, s. 31. 1756, c. 58, s. 4. The grantee in any deed, bill of sale, mortgage or other instrument requiring or allowing of registration may, at his own expense, on motion before the clerk of the supe- rior court of the county where the same is required to be registered, obtain a summons for any one of the sub- scribing witnesses to such conveyance, signed by the said clerk and directed to the sheriff, commanding him to summon such witness to appear at a certain time therein named, and give evidence concerning the execution of tlie conveyance or other writing, under the penalty of forty dollars; and the sheriff shall execute the same at least five days before the time to which it is returnable, ancl make due return thereof; and if any witness so sum- moned shall fail to appear, the clerk shall give judgment and award execution against him for the penalty afore- said, for the use of the party summouing him, in the like manner and under the same rules as are prescribed in the cases of other witnesses defaulting. See. 1269. Marriage settlements registered, otherwise void as to creditors. K. C, c. 37, s. 24. 1785, c. 238, s. 1. All marriage settlements and other marriage contracts, whereby any money or other estate shall be secured to the wife or "husband, shall be proved or acknowledged and registered in the same manner as deeds for lands, within six months after the making thereof, otherwise they shall be void against creditors. Johnson v. IMalcolm, 6 .Jou. Eq., 120; Latham v. Bowen, 7 Jon., 337; Hughes V. Debnam, 8 Jon., 127; Cliarlesv. Kennedy, 04—443; Tea^ue 7. Downs, 69—280. 504 DEEDS AND CONVEYANCES. [Chap. 27. Sec. 1270. Wliat marriage settlements good against creditors; how deficiency in property settled, made ui>. K. C„ c. 37, s. 35. 1785, c. 238, s. 2. No marriage settlement or marriage contract shall be good against creditors where a greater value is secured to the intended wife and children of the marriage, or either of them, than the portion actually received witli the wife in marriage, and such estate as the husband at the time of his marriage shall be possessed of, after de- ducting the just debts by him then due and owing; and in case of a suit upon any such marriage contract, where a creditor shall be a party, the burden of the proof shall lie upon the person claiming under such marriage con- tract: Provided, that if anj^ legacy shall be given to the wife in general words, and not in trust, or a distributive share of any intestate's estate shall fall to her during her coverture, and he shall become entitled thereto, such legacy and distributive share (in case the estate of the husband and wife shall not at the time of the marriage be of sufficient value to make good the marriage con- tract) shall be held, deemed and taken as part of the portion received with the wife, and shall be secured to those claiming under such marriage contract. Smith V. Garey, 3 D. & B. Eq., 42; Teague v. Downs, 69—280. Sec. 1271. Deeds of trust and mortgages, how discharged and released. 1870-'l, c, 217, s. 1. Any deed of trust or mortgage which hath been or which hereafter may be registered in the manner re- quired by this and the preceding sections, may be dis- charged and released in the following manner, to wit: the trustee or mortgagee or his or her legal representa- tive, or the duly authorized agent or attorney of such trustee, mortgagee or legal representative may, in the presence of the register of deeds, acknowledge the satis- faction of the provisions of such trust or mortgage, whereupon it shall be the duty of the register foi-thwith to make upon the margin of the record of such trust or mortgage an entry of such acknowledgment of satisfac- tion, which shall be signed by the said trustee, mortga- gee, legal representative or attorney, and witnessed oy the register, who shall also affix his name thereto, and every such entry thus acknowledged and witnessed shall operate and have the same effect to release and discharge all the interest of such trustee, mortgagee or representa- tive in such deed or mortgage, as if a deed of release or ?L Chap. 27.] DEEDS AND CONVEYANCES. 505 re- conveyance thereof had been duly executed and re- corded. Hare v. Jernigan, 76 — 471. See. 1272. Mortgages to secure purchase money need not be executed by wife. 1868-'9, c. 204, s. 1. The purchaser of real estate who does not pay the whole of the purchase money at the time when he takes a deed for title, may make a mortgage for securing the payment of such purchase money, or such part thereof as may re- main unpaid, which shall be good and effectual against his wife as well as himself, without requiring her to join in the execution of such mortgage deed. Etheridge v. Vernoy, 71 — 184. Sec. 1273. Form of chattel mortgage. 1870-'l, c. 277, s. 1. Any person indebted to another in a sum to be secured, not exceeding at the time of executing the deed herein provided for, the sum of three hundred dollars, may exe- cute a deed of trust in form substantially that which fol- lows : I, , of the county of in the state of North Carolina, am indebted to , of county, in said state, in the sum of dollars for -which he holds my note to be due the .... day of , A. D. 18. ., and to secure the payment of the same, I do hereby convey to him these articles of personal property, to wit: but on this special trust, that if I fail to pay said debt and interest on or before the .... day of , A. D. 18. ., then he may sell said property, or so much thereof as may be necessary, by public auction for cash, first giving twenty days' notice at three public places, and apply the proceeds of such sale to the discharge of said debt and interest on the same, and pay any surplus to me. Given under my hand and seal, this .... day of , A. D. 18. .. [Seal.] Provided, that no sale under any chattel mortgage shall be made without giving at least twenty days' notice oftime sale. Cotton V. Willoughby, 83—75 ; Harris v. Jones, 83—317. Sec. 1274. Deed of trust under next preceding section good when registered. 1870-'l, c. 277, s. 2. Such deed of trust shall be good to all intents and pur- poses when the same shall be duly registered according to law: Provided, the probate fee of the clerk of the superior court in such cases shall be only ten cents, and the fee of the register shall be twenty cents, and no other fee or tax shall be due on account of the same. 22 S% DEEDS AND CONVEYANCES. [Chap. 27. Sec. 1275. Conditional sales of personal property to be in writing and registered. 1883, c. 342. All conditional sales of personal property in which the title is retained by the bargainor, shall be reduced to writing and registered in the same manner, for the same fees and with the same legal effect as is provided for chattel mortgages. Sec. 1276. In what cases clerks of the superior court to appoint trustee. 1869-'70, c. 188,s. 1. 1873-'4,c. 126, s. 1. When any trustee of a deed of trust has died, removed from the county where the deed was executed and from the state, or in any way become incompetent to execute the said trust, the clerk of the superior court of the coun- ty wherein the said deed of trust was executed is author- ized and empowered, upon proceedings to which all per- sons interested shall be made parties, to appoint some discreet and competent person to act as trustee and ex- ecute the said deed of trust according to its true intent and meaning, and as fully as if appointed by the parties to the deed: Provided, that in all actions or proceedings had under this section prior to February fourteenth, one thousand eight hundred and seventy-four, before the clerks of the superior court in which any trustee was ap- pointed to execute a deed in trust where any trustee of a deed of trust has died, removed from the county where the deed was executed and from the state, or in any Avay become incompetent to execute the said trust, whether such appointment of such trustees by order or decree, or otherwise, was made upon the application or petition of any person or persons ex parte, or whether made in pro- ceedings whei-e all the proper parties were made, are in all things confirmed and made valid so far as regards the parties to said actions and proceedings to the same extent as if all proper parties had originally been made in such actions or proceedings. Guion V. Melvin, 69—242. Sec. 1277. Consolidation of surveys; proviso; common surveys may be recorded. 1860-'70, c. 34, ss. 1, 2. Whenever any person owns several tracts of land which are contiguous or adjoining, but held under different deeds and different surveys, it may be lawful for any such person to have all such bodies of land included in one common survey by running around the lin:'S of the outer tracts, and. thereupon the possession of any part of said Chap. 27.] DEEDS AND CONVEYANCES. 607 land covered by such common survey shall be deemed and held in law as a possession of the v^iiole and every part thereof: Provided, that nothing in this section shall be construed to affect the right or claims of persons which have already accrued to any part of said land. In all cases where such common surveys are made as dii-ected by this section, the same may be recorded and registered as in cases of deeds, and shaU- be evidence in like manner. Sec. 1278. Donations to persons while in slaverj'. 1869- '70, c. 77, s. 1. Whenever it is made to appear that any gift or convey- ance has been made to any person, while a slave, of any lands or tenements, whether the same shall have been conveyed by deed or parol, and the bargainee or donee has been placed into actual possession of the same, then and in that case such gift or conveyance shall have the force and effect of transferring the legal title to the said lands and tenements to such bargainee or donee: Pro- vided, such possession shall have continued for the term of ten years prior to the ninth day of March, one thou- sand eight hundred and seventy: Provided further, that any absence from the premises from the first day of May, one thousand eight hundred and sixty-one, to the first day of January, one thousand eight hundred and sixty six, shall not be held as an abandonment or discontinu- ance of the possession: Provided also, that this section shall not affect the interest of a bona fide purchaser foi value from the grantor or bargainor of the lands or tene- ments in dispute. Buie V. Carver, 75 — 559. Sec. 1279. Time extended for registering grants of land and other instruments. 1870-'l, c. 180, s. 1. All grants of land in the state, all deeds of conveyance of the same, all powers of attorney, and every other in- strument in writing, which is required by law to be reg- istered within or by a given time, and has not been proved and registered within or by such time, may be proved and registered within two- years after the passage of this code, under the same rules and regulations as heretofore required by law; and when so proved and registered, shall be as good and valid to every intent and purpose as if they had been duly proved and registered: Provided, that nothing herein contained shall be so con- 508 DESCENTS. [Chap. 28. strued as to extend to mortgages and deeds in trust apid to marriage settlements. Sec. 1280. All conveyances of real estate to be construed to be ill fee unless otherwise expressly set forth. 1879, c, 148. When real estate shall be conveyed to any person, the same shall be held and construed to be a conveyance in fee, whether the word " heirs" shall be used or not, un- less such conveyance shall, in plain and express words, show, or it shall be plainly intended by the conveyance or some part thereof, that the grantor meant to convey an estate of less dignity. Stell V. Barham, 87—63. CHAPTER TWENTY-EIGHT. DESCENTS. Section. 1281. Inheritances shall descend as follows : Rule. 1. Lineal descent. 2. Females to inherit with males, younger with older children, children advanced to account for the same. 3. Lineal defcendants to represent ancestor. 4. Collateral descent of inheritance, ■when derived from an an- cestor. 5. When not derived from an an- cestor or his blood extinct. 6. Half blood to inherit with RuxE. whole; parent to inherit from child. 7. None to inherit unless alive or born within ten months. 8. When widow taken as heir. 9. Illegitimate children to inherit from mother. 10. Illegitimate children to inherit from each other; legitimate may inherit from them; dying without issue mother to be heir. 11. Estates for life not devised, to be inheritances. 13. Seizin defined. 13. Issue of certain colored persons to inherit. K. C, c. Sec. 1281. Inheritances shall descend as follows. 38, s. 1. When any person shall die seized of any inheritance, or of any right thereto, or entitled to any interest there- in, not having devised the same, it shall descend under the following rules: Chap. 28.] DESCENTS. 509 Rule 1. Lineal descent. R. C, c. 38, s. 1, Rule 1. 1808, c. 739. Every inheritance shall lineally descend forever to the issue of the person who died last seized, entitled or hav- ing any interest therein, but shall not lineally ascend, ex- cept as hereinafter provided. McKay V. Hendon, 3 Mur., 309; Jones v. Edwards, 8 Jon., 336; Sears V. McBrido, 70—153. Rule 2. Females to inherit with males, younger with older children; children advanced in real or personal estate to account for advancements. R. C, c. 38, s. 1, Rule 2. 1784, c. 204, s. 2. 1808, c. 739. 1844, c. 51, ss. 1, 2. Females shall inherit equally with males, and younger with older children: Provided, that whenever a parent shall die intestate, having in his or her lifetime settled upon or advanced to any of his or her children, any real or personal estate, such child so advanced in real estate shall be utterly excluded from any share in the real es- tate descended from such parent, except so much thereof as wiU, when added to the real estate advanced, make the share of him who is advanced equal to the share of those who may not have been advanced, or not equally ad- vanced. And any child so advanced in personal estate shaU be utterly excluded from any share in the personal estate of which the parent died possessed, except so much thereof as will, when added to the personal estate ad- vanced, make the share of him who is advanced equal to the share of those who may not have been advanced, or not equally advanced. And in case any one of the chil- dren shall have been advanced in real estate of greater value than an equal share thereof which may come to the other children, he or his legal representatives shaU be charged in the distribution of the personal estate of such deceased parent, with the excess in value of such real es- tate so advanced as aforesaid, over and above an equal share as aforesaid. And in case any of the children shall have been advanced in personal estate of gi-eater value than an equal share thereof which come to the other chil- dren, he or his legal representatives shall be charged in the division of the real estate, if there be any, with the excess in value, which he may have received as afore- said, over and above an equal distributive share of the personal estate. Jolmstou V. Johnston, 4 Ired, Eq,, 9; Donnell v. Mateer, 5 Ired. Eq., 7; Lamb v. Carroll, 6 Ired., 4; Headen v. Headen, 7 Ired. Eq., 159; Bridgers 510 DESCENTS. [Chap. 28. V. Hutchins, 11 Ired., 68; Meadows v. Meadows, 11 Ired., 148; Hardy v. Simp6oa, Biisb., 325; Jc-nkins v. Mitchell, 4 Jon. Eq., 307; Dickson v. Coward, 4 Jon. Eq., 354; Banks v. Sliannonbouse, Phil., 284 McBride v. Patterson, 73—478; Melvia v. Bullard, 83—33. Bule 3. Lineal de§cendants to represent ancestor. B. C, c. 38, Rule 3. 1808, c. 739. The lineal dvjscendants of any person deceased shall represent their ancestor, and stand in the same place as the person himself would have done had he been living. Clement v. Cauble, 2 Jon. Eq., 82; Haynes v. Johnson, 5 Jon. Eq., 124; Johnson v. Chesson, 6 Jon. Eq., 146; Harman v. Ferrell, 64 — 474; Dozier V. Grandy, 66—484; Crump v. Faucette, 70—345. Bule 4. Collateral descent of inheritance when derived from an ancestor. E. C, c. 38, Rule 4. 1808, c. 739. On failure of lineal descendants, and where the inher- itance has been transmitted by descent from an ancestor, or has been derived by gift, devise, or settlement from an ancestor, to whom the person thus advanced would in the event of such ancestor's death, have been the heir or one of the heirs, the inheritance shall descend to the next collateral relations, capable of inheriting, of the pereon last seized, who were of the blood of such ancestor, sub- ject to the two preceding rules. Bell V. Dozier, 1 J'ev., 333; Felton v. Billups, 2 D. &B., 308; Wilkerson V. Bracken, 2 Ired., 315; Clement v. Cauble, 2 Jon. Eq., 83; Osborne v. Widenhouse, 3 Jon. Eq., 238; McMichael v. Moore, 3 Jon. Eq., 471; Cro- martie v. Kemp, 66 — 383. Bule 5. "When not derived from an ancestor or his blood extinct. B. C, c. 38, Bule 5. 1808, c. 739. On failure of lineal descendants, and where the inher- itance has not been transmitted by descent or derived as aforesaid from an ancestor, or where, if so transmitted or derived, the blood of such ancestor is extinct, the in- heritance shall descend to the next collateral relation, capable of inheriting, of the person last seized, whether of the paternal or maternal line, subject to the second and third rules. University v. Brown, 1 Ired., 387: Gillespie v. Foy, Sired. Eq., 380. Bule G. Half blood to inherit with whole; parent to in- herit from child. B. C, c. 38, Bule 6. 1808, c. 739. Collateral relations of the half blood shall inherit equally with those of the whole blood, and the degrees of relationship shall be computed according to the rules Chap. 28.J DESCENTS. 511 which prevail in descents at common law : Provided, that in all cases where the person last seized shall have lett no issue capable of inheriting, nor brother, nor sister, nor issue of such, the inheritance shall vest in the father if living, and if not, then in the mother if hvmg. Lawrence v. Pitl, 1 Jon., 344; McMichael v. Moore, 3 Jon. Kq., 471; Lit- tle V. Buie, 5 Jon. Eq., 10; Murphy v. Jackson, 5 Jon. Eq., 11; Dozicr v. Grandy, 66—484. Rule 7. None to inherit unless alive or born within ten months. R. C, c. 38, Kule 7. 1823,0.1210, No inheritance shall descend to any person, as heir of the person last seized, unless such person shall be in life at the death of the person last seized, or shall be born within ten lunar months after the death of the person last seized. Britten v. Miller, 63—368. Kule 8. When widow taken as heir. B. C, c. 38, Kule 8. 1801, c. 575, s. 1. When any person shall die, leaving none who can claim as heir to him, his widow shaU be deemed his heir, and as such shall inherit his estate. Powers V. Kite, 83 — 156. Kule 9. Illegitimate children to inherit from their mother. K. C, c. 38, Rule 10. 1799, c. 522. When there shall be no legitimate issue, every illegiti- mate child of the mother, and the descendant of any • such child deceased, shall be considered an heir, and as such shall inherit her estate; but such child or descend- ant shall not be allowed tu claim, as representing such mother, any part of the estate of her kindred, either lin- eal or collateral. Flintham v. Holder, 1 Dev. Eq., 345: Campbell v. Campbell, 5 Jon. Eq., 246; Harman v. Ferrell, 64—474. Kule 10. Illegitimate children to inherit from each other ; legitimate may inherit from them ; dying without is- sue mother to he heir. R. C, c. 38, Rule 11. Illegitimate children shall be considered legitimate as between themselves and their representatives, and their estates shall descend accordingly in the same manner as if they had been born in wedlock. And in case of the death of any such child or his issue, without leaving is- sue, his estate shall descend to such person as would in- herit if all such children had been born in wedlock: Pro- vided, that when any illegitimate child shall die with- 512 DESCENTS. [Chap. 28. out issue, his inheritance shall vest in the mother in tlie same manner as is provided in rule six of this chapter. Sawyer V. Sawyer, 6 Ired., 407; Ehringhaus v. Coatwright, 8 Ired., 39; Ivey V. Granberry, 66 — 223; McBryde v. Patterson, 78 — il3; Powers v. Kite, 83—156. Kule 11. Estates for life not devised, to be inheritances. R. C, c. 38, Rule 12. Every estate for the life of another, not devised, shall be deemed an inheritance of the deceased owner, vs^ithin the meaning and operation of this chapter. McBryde v. Patterson, 78—413. Rule 12. Seizin defined. R. C, c. 38, Rule 13. Every person, in whom a seizin is required by any of the provisions of this chapter, shall be deemed to have been seized, if he may have had any right, title or inter- est in the inheritance. Rule 13. Issue of certain colored persons to inherit. 1879, c. 73. The children of colored parents born at any time before the first day of January, one thousand eight hundred and sixty-eight, of persons living together as man and wife, are hereby declared legitimate children of such parents or either one of them, with all the rights of heirs-at-law and next of kin, with respect to the estate or estates of any such parents, or either one of them. Sears v. McBride, 70—152. Chap. 29.] DIVORCE AND ALIMONY. 513 CHAPTER TWENTY-NINE. DIVOEOE AND ALIMONY. Section. 1283. Superior court to have juris- diction. 1383. What marriages may be de- clared void on application of the parties. 1284. What to be declared void at all times. 1285. For what causes marriages may be dissolved. 1286. What causes sufficient for di- vorce from bed and board. 1287. Atfidavits to be filed with com- plaint; provisos. 1288. Material facts to be tried by a jury; provided if for divorce on ground of pregnancy of wife before marriage, either party may testify. Section. 1289. Venue in proceedings for di- vorce. 1290. Alimony on divorce from bed and board. 1291. AWmony pendente lite. 1292. When wife not suing for di- vorce is entitled to alimony. 1293. Court, power to issue writ where real estate assigned. 1294. Security for costs on appli- cation for divorce or alimo- ny. 1295. Consequences of a divorce a mnculo, on the personal rela- tions of parties. 1296. Consequences of divorce upon the right to the custody of th« children. Sec. 1282. Superior court to have jurisdiction. 1868-'9. c. 93, c. 45. The superior court shall have jurisdiction on complaints for divorce and alimony, or either. Irby V. Wilson, 1 D. & B. Eq., 568; Williamson v. Williams, 8 Jon. Eq., 446; Gilmore v. Gilmore, 5 Jon. Eq., 284; Smith v. Morehead, 6 Jon. Eq., 860; Webber v. Webber, 83—280; King v. King, 84—32. Sec. 1283. "What marriages may he declared void on ap- plication of the parties. 1871-'2, c. 193, s. 33. The superior court in term time, on application made as by law provided, by either party to a marriage con- tracted contrary to the prohibitions contained in chapter forty-two, or declared void by said chapter, may declare such marriage void from the beginning, subject, never- theless, to the proviso contained in said chapter. Sec. 1284. What to he declared void at all times. 1871- '2, c. 193, s. 34. All marriages between a white person and a negro or Indian, or between a white person and a person of negro 614 DIVORCE AND ALIMONY. [Chap. 29. or Indian descent, to the third generation inclusive, shall be absolutely void to all intents and purposes, and shall be so held and declared by every court at aU times, whether during the hves or after the deaths of the parties thereto; and it shall not be lawful for the issue of any such marriage to be legitimated to the supposed father. White V. White, 84.-340. Sec. 1285. For what causes marriages may be dissolved, 1871-'2, c. 193, s. 35. 1879, c. 132. Marriages may be dissolved and the parties thereto divorced from the bonds of matrimony, on application of the party injured, made as by law provided, in the fol- lowing cases: (1) If either party shaU separate from the other and Uve in adultery. (2) If the wife shall commit adultery. (3) If either party at the time of the marriage was and still is naturally impotent. (4) If the wife at the time of the marriage be preg- nant, and the husband be ignorant of the fact of such pregnancy and be not the father of the child with which the wife was pregnant at the time of the marriage. Long V. Long, 2 Hawks, 189; Collier v. Collier, 1 Dev. Eq., 353; Scrog- gins V. ScroL'gins, 3 Dev., 535; Moss v. Moss, 2 Ired., 55; Johnson v. Kin- cade, 2Ired. Eq., 470; Crump v. Morgan, 3 Ired. Eq., 91; Wood v. Wood, 5 Ired., 674; Foy v. Foy, 13 Ired., 90; Smith v. Moreliead, G Jon. Eq., 360; Edwards v. Edwards, Phil., 934; Barringer v. Barringer, 09 — 179; Home V. Horne, 72—530; Ibid, 72—101 : Morris v. Morris, 75 — 168; Long v. Long, 77—304; Manning v. Manning, 79—293; Jones v. Jones, 80—246: Tew v. Tew, 80-316. Sec. 1286. What causes sufficient for divorce from bed and board. 1871-'2, c. 193, s. 36. The superior court may grant divorces from bed and board on application of the party injured, made as by law provided, in the following cases: (1) If either party shall abandon his or her family; or, (2) Shall maliciously turn the other out of doors; or, (3) Shall by cruel or barbarous treatment endanger the hfe of the other; or, (4) Shall offer such indignities to the person of the other as to render his or her condition intolei-able and hfe bur- densome; Of, (5) Shall become an habitual drunkard. McKinnon V. McDonald, 4 Jon. Eq. , 1 ; Little v. Little, 63— 23; Davis Chap. 29.] DIVORCE AND ALIMONY. 515 V. Davis, 68—180; Smith v. Smith, 72—139; Taylor v. Taylor, 76—433; Miller V. Miller, 78—103; Pain v. Pain, 80—322; McQueen v. McQueen, 82—471; Muse v. Muse, 84—35; White v. White, 84-840; Scoggias v. Bcoggins, 85—347. Sec. 1287. Affidavit to be filed with complaint; provisos. 1868-'9, c. 93, s. 46. 1 869-' 70, c. 184. The plaintifif in a complaint seeking either divorce or ahmony, or both, shall file with his or her complaint an affidavit that the facts set forth in the complaint are true to the best of affiant's knowledge and belief, and that the said complaint is not made out of levity or by collusion between husband and wife; and if for divorce, not for the mere pm-pose of being freed and separated from each other, but in sincerity and truth for the causes mentioned in the complaint; and the plaintiff shall also set forth in such affidavit, either that the facts set forth in the complaint, as grounds for divorce, have existed to his or her knowledge at least six months prior to the filing of the complaint; and that complainant has been a resident of the state for two years next preceding the fihng of the complaint; or, if the wife be the plaintiff, that the husband is removing, or about to remove his property and effects from the state, whereby she may be disappointed in her alimony. Provided, if any wife shall file in the otfice of the superior court clerk of the county where she resides an affidavit, setting forth the fact that she intends to file a petition or bring an action for di- vorce against her husband, and that she has not had knowledge of the facts upon which said petition or action will be based for six months, then and in that case it shall be lawful for such wife to reside separate and apart from her said husband, and to secure for her owm use the wages of her own labor during the time she shall so remain separate and apart from her said husband: Provided further, that if such wife shall fail to file her petition or bring her action for divorce within thirty days after the six months shall have expired since her knowl- edge of the facts upon which she intends to file her said petition or bring her said action, then she shall not be entitled any longer to the benefit of this section. Anonymous, 1 Hay., 347; Spiller v. Spiller, 1 Hay., 483; Whittington v. Whittington, 2 D. & B., 64; Wilson v. Wilson, 2 D. & B., 377; Foy v. Foy, 13 Ired., 90; Schonwald v. Scbonwald, 2 .Ion. Eq., 367; Gaylord v. Gay- lord, 4 Jon. Eq., 74; Everton v. Everton, 5 Jon., 203; Edwards v. Edwards, Phil., 534; State v. Lytle, 64—255; Scroggins v. Scroggins, 80—318; Pain 51fi DIVORCE AND ALIMONY. [Chap. 29. V. Pain, 80—323; McQueen v. McQueen, 83—471; Scoggins v. Scoggins, 85—347. Sec. 1288. Material facts to be triedby ajury; proviso. If for divorce on grounds of pregnancy, either party may testify. 1868-'9, c. 93, s. 47. 1879, c. 132. The material facts in every complaint asking for a divorce shall be deemed to be denied by the defendant, whether the same shall be actually denied by pleading or not, and no judgment shall be given in favor of the plain- tiff in any such complaint until such facts have been found by a jury, and on such trial neither the husband or wife shall be a competent witness to prove the adultery of the other, nor shall the admissions of either party be received as evidence to prove such fact. Provided, that on the trial of any action for divorce on the ground of the pregnancy of the wife at the time of the marriage, either party may testify as to any facts material to such issue. Taylor v. Taylor, 76—433; Long v. Long, 77—304; "White v. White, 84 —340. Sec. 1289. Venue in proceedings for divorce. 1871-'2, c. 193, s. 40. In all proceedings for divorce, the summons shall be returnable to the court of the county in which the ap- plicant resides. Schonwald v. Schonwald, 3 Jon. Eq., 367; Smith t. Morehead, 6 Jon. Eq., 360. Sec. 1290. Alimony on divorce from bed and board. 1871-'2, c. 193, s. 37. When any court shall adjudge any two mairied persons divorced from bed and board, it may also decree to the party upon whose application such judgment was rendered, such alimony as the circumstances of the several parties may render necessary; which, however, shall not in any case exceed the one third part of the net annual income from the estate, occupation or labor of the party against whom the judgment shall be rendered. Rogers v. Vines, 6 Ired., 293; Simmons v. Simmons, Phil. Eq., 63; Schonwald v. Schonwald, Phi). Eq., 215; Wood v. Wood, Phil., 538; Little V. Little, 63—22; Sparks v. Sparks, 69—319; Hodges v. Hodges, 83—133. Sec. 1291. AMmony pendente lite. 1871-'2, c. 193, s. 38. 1883, c. 67. If any married woman shall apply to a court for a divorce from the bonds of matrimony, or from bed and Chap. 29.] DIVORCE AND ALIMONY. 517 board with her husband, and shall set forth in her com- plaint such facts, which upon application for alimony shall be found by the judge to be true and to entitle her to the relief demanded in the complaint, and it shall ap- pear to the judge of such court, either in or out of term, by the affidavit of the complainant, or other proof, that she has not sufficient means whereon to subsist during the prosecution of the suit, and to defray the necessary and proper expenses thereof, the judge may order the husband to pay her such alimony during the pendency of the suit as shall appear to him just and proper, having regard to the circumstances of the parties; and such order may be modified or vacated at any time, on the applica- tion of either party or of any one interested: Provided, that no order allowing alimony pendente lite shall be made unless the husband shall have had five days' notice thereof, and in all cases of apphcation for alimony pen- dente lite under this or the succeeding section, whether in or out of term, it shall be admissible for the husband to be heard by affidavit in reply or answer to the allega- tions of the complaint. Provided further, that if the husband shall have abandoned his wife and left the state, or shall be in parts unknown, or shall be about to remove or dispose of his property for the purpose of defeating the claim of his wife, no notice shall be necessary. Earp V. Earp, 1 Jon. Eq., 118; Gaylord v. Gaylord, 4 Jon. Eq., 74; Everton v. Everton, 5 Jon., 202; Shearin v. Shearin, 5 Jon. Eq., 233: Lynch v. Lynch, Phil. Eq., 46; Simmons v. Simmons, Phil. Eq., 63; Schonwald v. Schonwald, Phil. Eq., 215; Wood v. Wood, Phil., 538: Little V. Little, 68—22; Sparks v. Sparks, 69—319; Miller v. Miller, 75—70; Webber v. Webber, 79—573 ; Scroggins v. Scroggins, 80—318 ; Pain v. Pain, 80—333; Hodges v. Hodges, 82—133; Reeves v. Reeves, 82—348; Muse V. Muse, 84 — 35. Sec. 1292. When wife not suingr for divorce is entitled to alimony. 1871-'2, c. 193, s. 39. If any husband shall separate himself from his vnfe and fail to provide her with the necessary subsistence according to his means and condition in life, or if he shall be a drunkard or spendthrift, the wife may apply for a special proceeding to the judge of the superior court for the county in which he resides, to have a reasonable sub- sistence secured to her and to the children of the mar- riage from the estate of her husband, and it shall be law- ful for such judge to cause the husband to secure so much of his estate as may be proper according to his condition and circumstances, for the benefit of his said wife and 518 DIVORCE AND ALIMONY. [Chap. 29. children, having regard also to the separate estate of the wife. Joyner v. Joyner, 6 Jon., 322; Hodges v. Hodges, 82 — 122; Reeves v. Reeves, 82—348. Sec. 1293. Court, power to issue writ where real estate is assigned. 1868-'9, c. 123, s. 1. In all cases in which the court shall gi-ant alimony by the assignment of real estate, the court shall have power to issue a writ of possession when necessary in the judg- ment of the court to do so. Sec. 1 294, Security for costs ou application for divorce or alimony. 1871-'2, c. 193, s. 41. It shall not be necessary for either party to a proceed- ing for divorce or alimony to give any undertaking to the other party to secure such costs as such other party may recover. The judge of the court in which any such proceeding is pending, both before and after judgment therein, may at any time in his discretion, make any order respecting the payment of such costs as may be in- curred by the wife, either by the husband or by her from her separate estate. Sec. 1295. Consequences of a divorce a vinculo on the per- soual relations of the parties. 1871-'2, c. 193, s. 43. After a judgment of divorce from the bonds of matri- mony, all rights arising out of the marriage shall cease and determine, and either party may maiTy again: Pro- vided, that no judgment of divorce shall render illegiti- mate any children in esse, or begotten of the body of the wife during coverture. Sec. 1296. Consequences of divorce upon the rig-ht to the custody of the children. 1871-'2, c. 193, s. 46. After the filing of a complaint in any proceeding for divorce, whether from the bonds of matrimony, or from bed and board, both before and after final judgment therein, it shall be lawful for the judge of the court, in which such application is or was pending, to make such orders respecting the care, custody, tuition and mainten- ance of the children of the marriage as may be proper, and from time to time to modify or vacate such orders: Provided, that no order respecting the child len shall be made on the application of either party without five days' notice to the other party, unless it shall appear that the party having the posse-ssion or control of such children Chap. 30.] DRAINING LOWLANDS. 519 has removed or is about to remove the children, or him- self, beyond the jurisdiction of the court. CHAPTER THIRTY. DRAININa AND DAMMmG LOWLANDS. i Section. 1297. Mode of proceeding, hj peti- tion for draining or damming lowlands; court to appoint three commissioners. 1298. Duty of commsisioners. 1299. Shall report to court on pay- ment of damages and costs; easement to vest in fee; no canal, ditch or dam made through yard, &c., or to injure mill, or to create nuisance by stagnant water, &c. 1300. Fences or paths across canal, ditch or embankment made by proprietor, when. 1301. Earlh for dam, how taken; owner of land may adjoin his own dam, when. 1302. Commissioners to designate width of land for use of canal, &c. ; width of dam not to ex- ceed five times its base. 1303. Earth excavated for canal, re- moved or leveled. 1304. Proprietor of land not to open drain within thirty feet of canal. 1305. Mode of proceeding to drain into a canal, &c. 1306. Commissioners to assess and apportion labor for n pairing canals. &c. ; report when coa- flrmed, to stand as a judgment against the parties, &c. Section. 1307. Mode of proceeding for joint repairs of canals. 1308. Persons failing to work, how recovered against. 1309. Assignees, &c., bound to repair as original owners. 1310. All persons interested to con- tribute to repair dams, &c. ; mode of proceeding. 1311. In addition to foregoing sec- tions, and to provide for drain- age on a large scale, canals, &c., may be cut. 1312. Court shall appoint com- missioners to examine and report. 1313. Commissioners may appoint surveyor. 1314. When court to confirm re- port of commissioners. 1315. Proprietors declared a corpora- tion. 1316. Corporate name and officers. 1317. Owners and shares. 1318. Obedience to laws, &c. ; pro- viso. 1319. Payment of dues, &c. 1320. Privileges of infants. 1321. Damage to land. 1322. Court may dissolve corpora- tion. 1323. Court to regulate costs. 1324. Proceeding, a special pro- ceeding. 520 DEAINING LOWLANDS. [Chap. 30. Sec. 1297. Mode of proceeding, by petition for draining or daniiuiug lowlands; court to appoint tliree com- missioners. K. C, c. 40, s. 1. 1795, c. 436, s. 1. 1852, c. 57, ss, 1, 2. Any person owing pocosin, swamp or flat lands, or owning lowlands subject to inundation, which cannot be conveniently drained or embanked so as to drain off or dam out the water from such lands, except by cutting a canal or ditch, or erecting a dam through or upon the lands of other pei-sons, may by petition apply to the superior court of the county, in which the lands sought to be drained or embanked, or some part of such lands he, setting forth the particular circumstances of the case, the situation of the land to be drained or embanked, to what outlet and through whose land he desii-es to drain, or on what lands he would erect his dam, and who are the proprietors of said lands; whereupon a summons shall be served on each of the proprietors, and, on the hearing of the petition, the court shall appoint three persons as commissioners, who shall be duly sworn to do justice between the parties. Collins V. Haugliton, 4 Ired., 420; Stanly v. Watson, 11 Ired., 124; Skinner V. Nixon, 7 Jon., 343; Sliaw v. Burfoot, 8 Jon., 844; Brooks v. Tucker, Phil., 309; Noifleet v. Cromwell, 70—634; Brown v. Keener, 74—714; Gamble v. McCrady, 75—509; Pool v. Trexler, 76—297; Burden V. Simmons, 84 — 555. Sec. 1298. Duty of commissioners. R. C, c. 40, s. 2. 1795, c. 436, s. 1. 1852, c. 57, ss. 1, 2. The commissioners, or a majority of them, on a day of which each proprietor of land aforesaid is to be notified at least five days, shall meet on the premises and view the lands to be drained or embanked, and the lands through or on which the drain is to pass or the embank- ment to be erected, and shall determine and report whether the lands of the petitioner can be conveniently drained or embanked except through or on the lands of the defendants or some of them; and if they are of opinion that the same cannot be conveniently done except through or on such lands, they shall decide and determine the route of the canal, ditcli or embankment, the width thereof and the depth or height, as the case may be, and the manner in which the same shall be cut or thrown up, considering all the circumstances of the case, and providing as far as possible for the effectual drainage or embankment of the water from the peti- tioner's land, and also securing the defendant's lands Chap. 30.] DRAINING LOWLANDS. 521 from inundation, and every other injury to which the same may be probably subjected by such canal, ditch or embankment; and they shall assess, for each ot the defendants, such damage as in their judgment wiU tuliy indemnify him for the use of his land m the mode proposed; but in assessing such damages, the benefat shall be deducted. Brooks V. Tucker, Phil., 309; Burden v. Simmons, 84—555. Sec. 1299. Shall report to court on payment of damages and costs ; easement to vest in fee ; no canal, ditch or dam made through yard, &c., or to injure mill, or to create nuisance hy stagnant water, &c. R. C, c. 40, s. 3. 1795, c. 436, s. 2. 1835, c. 7. 1853, c. 57, ss. 1. 2. The commissioners shall report in writing, under their hands, the whole matter to the court, which shall con- firm the same, unless good cause be shown to the con- trary; and on payment of the damages and costs of the proceedings, the court shall order and decree that the petitioner may cut the canal or ditch, or raise the embankment in the manner reported and determined by the commissioners; and thereupon the petitioner shall be seized in fee simple of the easement aforesaid: Provided, that, without the consent of the proprietor, such canal, ditch or embankment shall not be cut or raised through or on his yard or curtilage, nor be allowed when the same shall injure any mill, by cutting off or stopping the water flowing thereto; nor shall said dam be allowed so as to create a nuisance by stagnant water, or cut oft the flow of useful springs or necessary streams of water, or stop any ditches of such proprietor when there is no freshet. Collins V. Haughton, 4 Ired, 420; Skinner v. Nixon, 7 Jon.. 343; Brooks V. Tucker, Phil., 309; Norfleet v. Cromwell, 64r-l; Norfleet v. Cromwell, 70—634. Sec. 1.300. Fences or paths across canal, ditch or embank- ment, made by proprietor, when. R. C, c. 40, s. 4. 1795, c. 436, s. 2. 1835, c. 7. 1852, c. 57, ss. 1, 2. Any proprietor, through or on whose land such canal or ditch may be cut or embankment raised, may put a fence or make paths across the same, provided the use- fulness thereof be not impaired; and the owner of the canal, ditch or dam, his heirs and assigns, shall at all times have free access to the same, for the puri)Ose of 522 DRAINING LOWLANDS. [Chap. 30. making and repairing; them; doing thereby no unneces- sary damage to the lands of the proprietors. Sec. 1301. Earth for dam, how taken ; owner of land may adjoin his own dam, when. K. C, e. 40, s. 5. The earth necessary for the erection of a dam may be taken from either side of it, or wherever else the com- missioners may designate and allow. And such dam may be removed by the proprietor of the land, his heii-s or assigns, to any other part of his lands, and he may adjoin any dam of his ov^m thereto, if allowed by the court on a petition, and such proceedings therein as are provided in this chapter, as far as the same may apply to his case: Provided, always, that the usefulness of the dam will not be thereby impaired or endangei-ed. Sec. 1302. Commissioners to designate width of land for use of canal, &c.; wldthof dam not to exceed live times its base. K, C, c. 40, s. 6. The commissioners, when they may deem it necessary, shall designate the width of the land to be left on each side of the canal, ditch or dam, to be used foi- the pro- tection and reparation thereof, which land shall be alto- gether under the control and dominion of the owner of the canal, ditch or dam, except as aforesaid: Provided, that in no case shall a greater width of land on both sides, inclusive of a dam, be taken than five times the base of such dam. Sec. 1303. Earth excavated for canal, removed or leveled. R. C, c. 40, s. 7. The earth excavated from the canal or ditch shall be removed away or leveled as nearly as may be with the surface of the adjacent land, unless the commissioners shall otherwise specially allow. Sec. 1304. Proprietor of land not to open drain within thirty feet ot canal. K. C, c. 40, s. 8. The proprietor of any swamp or flat lands, through which a canal or ditch passes shall not have a right to open or cut any drain within thirty feet thereof, but by the consent of the owner. Such proprietor, however, and other persons may cut into such canal or ditch in the manner hereinafter provided. Brooks V. Tucker, Phil., 309. Chap. 30.] DRAINING LOWLANDS. 523 Sec. 1305. Mode of proceeding to drain into a canal, &c. K. C, c. 40, s. 9. Any person desirous of draining into the canal or ditch of another person as an outlet, may do so in the manner hereinbefore provided, and in addition to the persons directed to be made parties, all others shall be jparties through whose lands, canals or ditches the water to be drained may pass till it shall have reached the furthest artificial outlet. And the privilege of cuttmg into such canal or ditch may be granted under the same rules and upon the same conditions and restrictions as are provided in respect to cutting the first canal or ditch: Proiided, that no canal or ditch shall be allowed to be cut into another, if thereby the safety or utihty of the latter shall be impaired or endangered: Provided further, that if such impairing and danger can be avoided by im- posing on the petitioner duties or labor in the enlarging or deepening such canal or ditch, or otherwise, the same may be done; but no absolute decree for cutting such second canal or ditch shall pass till the said duties or work so im])osed shall be performed and the effect there- of is seen, so as to enable the commissioners to determine the matter whether such second canal or ditch ought to be allowed or not. Brooks V. Tucker, Phil., 309. Sec. 1306. Commissioners to assess and apportion labor for repairing canals, &c.; report, when conlirmed, to .stand as a judgment against tbe parties, &c. K. C, c. 40, s. 10. Besides the damages which the commissioners may assess against the petitioner for the privilege of cutting into such canal or ditch, they shaU assess and apportion the labor which the petitioner and defendants shall severally contribute towards repairing the canal or ditch into or through which the petitioner drains the water from his lands, and report the same to court; which, when confirmed, shall stand as a judgment of the court against each of the parties, his executors and administrators, heirs and assigns. Brooks V. Tucker, Phil., 309. Sec. 1307. Mode of proceeding for joint repairs of canals. R. (J., c. 40, s. 11. Whenever the canals or ditches for the reparation of which more than one person shall be bound under the provisions of the preceding section, shall need to be re- DEAINING LOWLANDS. [Chap. 30. paii-ed any of the persons so bound may notify the others thereof, and of the time he proposes to repair the same- and thereupon each of the persons shall jointly work on the same and contribute his proportion of labor, till the same be repaii-ed or the work cease by consent. Sec. 1308. Persons failing to work, how recovered against R. C, c. 40, s. 12. In case the person so notified shaU make default, any of the others may perform his share of labor and recover against him the value thereof, on a notice to be issued for such default; m which shall be stated on oath made be- fore the clerk the value of such labor; and unless good cause to the contrary be shown on the return of the notice, the court shall render judgment for the same with interest and costs. Sec. 1309. Assignees, &c., bound to repair as original owners. K. C, c. 40, s. 13. All persons to whom may descend, or who may other- wise own or occupy lands drained by any canal or ditch, tor the privilege of cutting which any labor for repaft-ing IS assessed, shall contribute the same, and shall be bound therefor to aU intents and purposes, and in the same manner and by the same judgment, as the original party himself would be if he occupied the land. Sec. 1310. AU persons interested to contribute to repair dams, &c.; mode of proceeding. R. c, c. 40, s. 14. Whenever there shall be a dam, canal, or ditch, in the repairing and keeping up of which, two or more persons shall be interested and receive actual benefit therefi'om and the duties and proportion of labor which each one ought to do and perform therefor shall not lie fixed by agreement or by the mode already in this chapter pro- vided for assessing and apportioning such labor, any of the parties may have the same assessed and apportioned by petition to the superior court of the county in which such duties and labor, or some part thereof, are to be per- formed, and the proceedings therein shall be by com- missioners, m the manner in this chapter ah-eady pro- Sec. 1311. In .addition to the foregoing sections, and to provide for drainage on a larger scale, canals, &c., may be cut. 1868-'9, c. 164, s. 2. Any proprietor in fee of swamp lands, which cannot be Ohap. 30.] DRAINING LOWLANDS. 525 drained except by cutting a canal through the lands of another, or other proprietor in fee, situated at a lower (evel and which would also he matenaUy benehted by the cutting of such canal, who desires that said canal be cut on the terms on which it is hereinafter allowed, may apply by petition, setting forth the facts to the superior court of the county in which any of the lands through which the canal will pass, may lie. Shawv Burfoot, 8 Jon., 344; Canal Co. v. McAlister, 74-159; Brown V. Keener, 74—714; Gamble v. McCrady, 75-509; Pool v. Trexler, 76- 297; Bunting V. Stancill, 79—180; Durdenv. Simmons, 84—555. Sec. 1313. Court shall appoint commissioners to examine and report. 1868-'9, c. 164, s. 3. On the estabUshment by the petitioner of his allega- tions, the court shall appoint three persons as commis- sioners who, having been duly sworn, shall examine the premises and inquire and report: (1) Whether the lands of the petitioner can be con- veniently drained, otherwise than through those of some other person ; (2) Through the lands of what other persons a canal to drain the lands of the petitioner should properly pass, considering the interests of all concerned; (3) A description of the .several pieces of lands through which the canal would pass; and the present values of such portions of said pieces of lands as would be benefited by it; and the reasons for arriving at the conclusion as to the benefit; (4) The route and plan of the canal, including its breadth, depth and slope, as nearly as they can be calcu- lated, with all other particulars necessary for calculating its cost; (5) The probable cost of the canal and of a road on its bank, and of such other works, if any, as may be neces- sary for its profitable use; (6) The proportion of the benefit, (after a deduction of all damages,) which each proprietor would receive by the proposed canal and a road on its bank if deemed necessary, and in which each ought, in equity and justice, to pay to- ward their constraction aud permanent support. (7) With their report they shall return a map explain- ing, as accurately as may be, the various matters re- quired to be stated in their report. 526 DRAINING LOWLANDS. [Chap. 30. Sec. 1313. Commissioners may appoint surveyor. 18C8- '9, c. 164, s. 4. The said commissioners may employ a surveyor to pre- pare the map requiied to accompany their report. Sec. 1314. "When court to confirm report of commis- sioners. 1868-'9, c. 164, s. 5. If it appear that the lands on the lower level will be increased in value twenty-five per cent, or upwards by the proposed improvement, within one year after the completion thereof, and that the cost of making such improvement will not exceed three-fourths of the present estimated value of the land to be benefited, and that the proprietors of at least one-half in value of the land to be afl'ected, consent to the improvement, the court may confirm such report, either in full, or with such modifica- tions therein as shall be just and equitable. Sec. 1315. Proprietors declared a corporation. 1868-'9, o. 164, s. 6. Upon a final adjudication, confirming the report, the proprietors of the several pieces of land adjudged to be benefited by the improvement, shall be declared a corporation, of which the capital stock shall be double the estimated cost of the improvements, and in w^hich the several ownei's of the land adjudged to be benefited, shall be corporators, holding shares of stock in the proportions in which they are adjudged liable for the expense of making and keeping up the improvement. See. 1316. Corporate name and officers. 1868-'9, c. 164, s. 7. The person assessed to pay the highest sum shall be president of the company, until another shall be elected; he shall, or in case of his refusal or an unreasonable delay, any other stockholder, may call a meeting of the corpora- tors. The corporators shall choose a corporate name, elect a president and such other officers as may be necessary, and make aU by-laws and regulations not contrary to law, which may be necessary or proper for effecting the purposes of the coi-poration; they shall fix the number of shares of stock, and assign to each proprietor his proper number; they shall assess the same which shall be payable by each proprietor, and to ascer- tain the time and mode of payment, in every meeting each proprietor shall vote once for each sliare owned by him. Chap. 30.] DRAINING LOWLANDS. 527 Sec. 1317. Owners and shares. ISGS-'O, c. 164, s. 8. The ownership of the shares of stock is indissolubly annexed to the ownership of the pieces of land adjudged to be benefited by the improvement; and such shares, or a part thereof proportionate to the area of such land that may descend or be conveyed, for any longer time than three years, shall, upon such descent or conveyance, descend and pass with the land, even although such shares be not mentioned in the deed of conveyance, and although their transfer be forbidden by such deed so that every owner of said land in possession, except tenant for a term of years, not exceeding three, and every owner in reversion or remainder after a term not exceeding three years, shaU, during his ownership, be entitled to all the rights and privileges and be subject to all the obhgalions and burdens of a corporator. Every at- tempted sale of shares otherwise than as annexed to the land shall be void. Sec. 1318. Obedience to laws, &c.; proviso. 1868-'9, c. 164, s. 9. Every corporator shall be bound to obey the lawful by-laws of the company, and pay all dues lawfully assessed on him : Provided, he shall in no case pay more than his proportion of the expenses as fixed by this chap- ter; and such dues may be collected in the corporate name in any court having jurisdiction; and every assess- ment duly docketed in the county where the land to be afifected lies, shall be a lien on the lands of the debtor which are connected with the corporation from the date of such docketing. Sec. 1319. Payment of dues, &c. 1868-'9, o. 164, s. 10. Every corporator, paying his dues legally assessed with- out regard to the number of his shares, shall be entitled to the full and free use of said canal for drainage and nav- igation, and of the road for passage and transportation. By-laws may be made to regnilate these rights, but not so as to produce an inequality. Sec. 1320. Privileges of infants. 1868-'9, c. 164, s. 11. If any proprietor whose lands are adjudged to be ben- efited by a canal shall be an infant, no process shall be issued against him during his minority, or within twelve months thereafter, to enforce payment of any assess- ment, and he may, at any time within such twelve months, apply to have any order, judgment or decree 628 DRAINING LOWLANDS. [Chap. 30. made against him, set aside as to him. If the infant or his guardian shall, during his minority, and the twelve months next thereafter, pay the dues assessed on him, he shall have all the rights and privileges of a corporator to be exercised through his guardian. If the infant shall fail to pay he shall not have any such rights, but if no action to set aside the judgment of the court creating the corporation shall have been brought by him as aforesaid, or upon the decision of such action against him, he shall be entitled to receive his proper share of stock and to possess all the rights and be bound by all the liabilities of a corporator, including a liability for assessments made during his minority, but not for interest on such, nor for any pen- alty for their prior non-payment. Sec. 1321. Damage to lands. 1868-'9, c. 164, s. 12. If any proprietor of lands shall be damaged by any im- provement proposed, the commissioners shall so report, and he shall be entitled to be compensated as maybe just by the proprietor whose lands are benefited in proportion to the benefit to them respectively; but in estimating such damage the benefit shall be deducted, and such proprietor shall be entitled to all the rights and privileges of a cor- poration as respects the use of the improvement, but shall not be entitled to a vote, or be bound for the assess- ment. Sec. 1322. Court may dissolve corporation. 18G8-'9, c. 164, s. 13. If, from any cause, the canal or other improvement shall become, or shall prove to be valueless, any corpora- tor may apply as is provided in other cases of special pro- ceedings, and the court may dissolve the corporation ci-e- ated in connection with it. Sec. 1323. Court to regulate costs. 1868-'9, c. 164, s. 14. In all proceedings under this chapter, the costs, includ- ing one dollar and fifty cents per diem to each commis- sioner, shall be in the discretion of the court, unless otherwise herein provided. Sec. 1324. Proceeding, a special proceeding. The proceeding under this chapter shall be the same as prescribed in other cases of special proceeding. Chap. 31.] ESTATES. CHAPTER THIRTY-ONE. ESTATES. Section. 1325. Estates in tail converted into fee simple. 1326. In joint tenancy, the share of deceased co-teniint not to vest in survivor; proviso as to part- ners in trade. 1327. Certain contingent limitations in deeds or wills, how con- strued, if made since the fif- teenth of Junuary, one thou sand eight hundred and twen- ty eight. 1328. Infant unborn may take by deed, &c. 1329. Limitation to the heirs of a living person to be to his chil- dren. Section. 1330. In conveyance to uses, pos- session transferred to use with- out livery. 1331. Grantees of reversions to have such rights against tenants for life or years, as grantors had. 1333. Such tenants to have same rights against grantees of re- versions, as against the grant- ors. 1333. Buying and selling pretended rights or titles prohibited. 1334. Collateral and certain other warranties made void; to stand as covenants only. 1335. Property held in trust; so held not liable for debts; proviso. Sec. 1325. Estates in tail converted into fee simple. R. C, 0.43, s. 1. 1784,0.204,8.5. Every person seized of an estate in tail shall be deemed to be seized of the same in fee simple; and all sales and conveyances, made bona fide and for valuable considera- tion, since the first day of January, in the year of our Lord one thousand seven hundred and seventy- seven, by any tenant in tail in actual possession of any real estate where such estate hath been conveyed in fee simple, shall be good and effectual in law to bar any tenant in tail and in remainder, of and fiom all claim, action and right of entry whatsoever, of, in, and to such entailed estate, against any purchaser, his heirs, or assigns, now in act- ual possession of such estate, in the same manner as if such tenant in tail had possessed the same in fee simple. Lane v. Davis, 1 Hay., 277 (310); Minge v. Giimour, 1 Hay., 379 (832); Moore v. Bradley, 2 Hay., 142; Wellsv. Newbold, Tay., 166— (Ed., 1802). Sec. 132G. In joint-tenancy, tlie share of tleoeased co- tenant not to vest in survivor; proviso as to partners in trade. K. C, o. 43, s. 2. 1784, c. 204, ,s. G. In all estates, real or personal, held in joint tenancy, 23 S30 ESTATES. [Chap. 31. the part or share of any tenant djing shall not descend or go to the surviving tenant, but shall descend or be vested in the heirs, executors, or administrators, or as- signs respectively of the tenant so dying, in the same manner as estates held by tenancy in common: Provided, that estates held in joint tenancy for the purpose of car- rying on and promoting trade and commerce, or any useful work or manufacture, estabhshed and pursued with a view^ of profit to the parties therein concerned, shall be vested in the surviving partner, in order t© ena- ble him to settle and adjust the partnership business, or pay off the debts which may have been contracted in pur- suit of the said joint business; but as soon as the same shall be effected, the survivor shall account with, and pay, and deliver to the heirs, executors, administrators and assigns respectively of such deceased partner, all such part, share, and sums of money as he may be en- titled to by virtue of the original agreement, if any, or according to his share or part in the joint concern, in the same manner as partnership stock is usually settled be- tween joint merchants and the representatives of their deceased pai-tners. Waugh V. Mitcliell, 1 D. & B. Eq., 510; Baird v. Baud, 1 D. & B. Eq., 534; Motley v. Whitemore, 2 D. & B., 537; Ellison v. Andrews, ISIred., 188; Todd v. Zachary, Busb. Eq., 286; Vass v. Freeman, 3 Jon. Eq., 231; Bond V. Hilton, 6 Jon., 180; Patton v. Patton, Winst. Eq., 20; Sum- mey v. Patton, Winst. Eq., 53: Stroud v. Stroud, Phil., 535; Powell v. Allen, 75 — 450; Ross v. Henderson, 77—170; McCaskill v. Lancasliire, 83—393; Blair v. Osborne. 84 — 417; Powell v. Morris, 84—421; Mtmlenliall V. Benbow, 84—646; Long v. Barnes, 87—339. Sec. 1337. Certain contingent limitations in deeds or wills, how construed, if made .since the fifteenth of January, one thousand eight hundred and twenty- eight, it. C, c. 43, s. 3. 1827, c. 7. Every contingent limitation in any deed or will, made to depend upon the dying of any person without heir or heirs of the liody, or without issue or issues of the body, or without children, or offspring, or descendant, or other relative, shall be held and interpreted a limitation to take effect, when such person shall die, not having such heir, or issue, or child, or offspring, or descendant or otlier relative (as the case may be) living at the time of his death, or born to him within ten lunar months there- after, unless the intention of such hraitation be other- wise, and expressly and plainly declared in the face of the deed or will creating it: Provided, that the rule of Chap. 31.] ESTATES. 631 construction contained in this section shall not estend to any deed or will made and executed before the fifteenth of January, one thousand eight hundred and twenty- eight. ZollicofEer v. Zollicoffer, 4 D. & B., 438; Thompson v. Floyd, 4 D. & B., 478: Tillman V. Sinclair, 1 Ired., 183; Moore v. Barrow, Sired., 436; Brown V. Brown, 3 Ired., 134; Swain v. Roscoe, 3 Ired., 200; Robards v. Jones, 4 Ired., 53; State v. Skinner, 4 Ired., 57; Garland v. Watt, 4 Ired., 287; Brantley v. Whitaker, 5 Ired., 225; Cox v. Marks, 5 Ired., 361; Ilollowell V. Kornegay, 7 Ired., 261; Weatherly v. Armfield, 8 Ired., 25; Folk v. Whitley, 8 Ired., 133; Sanderlin v. Deford, 2 Jon., 74; Gibson v. Gibson, 4 Jon., 4a7; Miller v. Churchill, 78— 372; Bathaway v. Harris, 84—96; King V. Utley, 85—59. Sec. 1328. Infant unborn may take by deed, &c. K. C, c. 43, s. 4. lO, 1 1 W. IV, c. 16. An infant unborn, but in esse, shall be deemed a per- son capable of taking by deed or other writing, any estate whatever in the same manner as if he were born. Sec. 1829. Limitation to the heirs of a living person to be to his children. K. C, c. 43, s. 5. Any hmitation by deed, will, or other writing, to the heirs of a living person, shall be construed to be to the children of such person, unless a contraiy intention ap- pear by the deed or will. Miller v. Churchill, 78—373; King v. Utley, 85—59; Patrick v. More- bead, 85—62, Sec. 1330. In conveyance to uses, possession transferred to use without livery. K. C, c. 43, s. 6. 27 Hen. VIII, c. 10. By deed of bargain and sale, or by deeds of lease and release, or by covenant to stand seized to use, or deed operating by way of covenant to stand seized to use, or otherwise, by any manner or means whatsoever it be, the possession of the bargainor, releasor, or covenantor shall be deemed to be transferred to the bargainee, re- leasee, or person entitled to the use, for the estate or in- terest which such person shall have in the use, as per- fectly as if the bargainee, releasee or person entitled to the use had been enfeoffed at common law with livery of seizin of the land, intended to be conveyed by such deed or covenant. Hogan V. Strayhorn, 65—279; Ivey r. Granberry, 68 — 223; Bruce v. Faucett, 4 Jon.. 391; Wilder v. Ireland, 8 Jon., 85. 632 ESTATES. [Chap. 31. Sec. 1331. Grantees of reversions to have such rights against tenants for life or years as grantors liad. R. C, c. 43, s. 7. 32 Hen. VIII, c. 34, s. 1. 1868-'9, c. 156, s. 18. Whenever a conveyance shall be made by any person, of any reversion in lands, rents, tenements, or heredita- ments, which at the time of such conveyance, shall be held by any other person for a term of life or years, such grantee, his heirs, executors, administrators, and assigns, shall have the like advantages against the tenant for life, and against the tenant for years, his executors, adminis- trators, and assigns, by entry for nonpayment of rent and foi- doing of waste, and the same benefit and advan- tage and remedies by action for the not performing of other conditions, covenants, or agreements, contained and expressed in the indentures or other agreement, by which such tenant for life or years hold the same lands, tenements, rents or hereditaments against said tenant for life or for years, his executoi's, administrators and assigns, as the grantor or lessor himself or his heirs might have. Sec. 1332. Such tenants to have same rights against grantees of reversions as against the grantors. R. C, c. 43, s. 8. 32 Hen. VIII, c. 34, s. 2. Lessees and grantees of lands, rents, tenements and hereditaments for term of years or life, their executors, administrators and assigns, shall have like action, advan- tage and remedy against every person, his heirs and assigns, who shall have any conveyance from any per- son of the reversion of the same lands, rents, tenements and heretlitaments, so let or any parcel thereof, for any condition, covenant or agreement contained or expressed in the indenture of their leases, as the same lessees, or any of them, might and should have had against the said lessor and grantor, and his heu-s. Sec. 1333. Buying and selling pretended rights or titles prohibited. R. C, c. 43, s. 9. 32 Hen. VIII, c. 1), ss. 2, 4. No person shall buy, sell or obtain any pretended right or title, or take a promise or covenant to have any light 01' title of any person, in or to any lands or tene- ments, (except such person as shall sell, covenant or promise the same, or they by whom they claim, have been in possession of the same or of the reversion or re- mainder thereof, or taken the rents and profits thereof one Chap. 31.] ESTATES. 533 year next before the bargain made,) upon pain that both he that shall make any such sale, promise or covenant, and the buyer, knowing the same, shall forfeit the value of tho said lands— the one-half to the use of the county vi^here the lands are situated, the other half to the person suing for the same: Provided, that any person being in the lawful possession, by taking the rents and profits of any tenements, may buy the pretended right of any other person to such tenements. Sec. 1334. Collateral and certain other warranties made void; to stand as covenants only. K. C, c. 43, s. 10. 4 Anne, c. 16, s. 21. 1852, c. 10. All collateral vi^arranties are abolished; and all war- ranties rnade by any tenant for life of lands, tenements or hereditaments, the same descending or coming to any person in reversion or remainder shall be void; and all such warranties, as aforesaid, shall be deemed covenants only, and bind the covenantor in like manner as other obligations. Johnson v. Bradley, 9Ired., 363; Moore v. Parker, 12 Ired., 123; Myers V. Craig, Busb., 169; Soutlierland v. Stout, 68—446. Sec. 1335. Property held in trust; so held not liahle for debts; proviso. 1871-'3, c. 204, s. 1. It shall and may be lawful for any person by deed or will to convey any property to any other person in trust to receive and pay the profits annually or oftener for the support and maintenance of any child, grandchild or other relation of the grantor, for the life of such child, grandchild or other relation, with remainder as the grantor shall provide; and the property so conveyed shall not be liable for or subject to be seized or taken iu any manner for the debts of such child, grandchild or other relations, whether the same be contracted or in- curred before or after the grant: Provided, that this sec- tion shall apply only to grants or conveyances where the property conveyed does not yield at the time of the con- veyance a clear annual income exceeding five hundred dollars. 634 EVIDENCE. DEPOSITIONS, ETC. [Chap. 32. CHAPTER THIRTY-TWO. EVIDENCE, DEPOSITIONS, WITNESSES. Section. 1336. Evidence necessary to support title under H. E. McCulloch. 1387. Grant or copy from proprietor sufficient evidence of title un- der him. 1338. Evidence of the laws of other states, territories and coun- tries. 1839. StiUutes, how proved. 1840. Otlier evidence of some acts. 1341. Copy of survey from office of secretary of state good evi- dence. 1342. Copies of official writings com- petent evidence. 1843. Records of administrations or letters testamentary in other states, how certified. 1344. Wills or deeds in other states proved by certified copies. 1345. In suits on bonds of officers or trustees, evidence against prin- cipals, admissible against sure- ties. 1346. Evidence in land suits in Hay wood and Henderson counties. 1347. Variance between execution and judgment not to affect ti- tle of purchaser. 1348. Deeds registered and lost and the registry also destroyed presumed to have been in due form. 1349. Evidence of counsel in cases of fraud where the state is concerned. 1350. No witness incapacitated by interest or crime. 1351. Evidence of parties admissi- ble. Section. 135a. Mortuary tables evidence. 1353. Defendants in criminal pro- ceedings competent in their own behalf at their own re- quest; husband or wife of the defendant competent for de- fendant. 1354. Incompetent evidence, what. 1355. Rules for summoning witness- es; subpoena, how issued and served. 1356. Witnesses to attend from term to term till discharged; pen- alty for non-attendance; enti- tled to pay till discharged; no executions to issue against de- faulting witness until after notice. 13.57. Depositions, how taken. 1358. What depositions may be read on the trial. 1359. Depositions in civil actions be- fore a justice of the peace. 1360. Depositions not to be quashed after a trial has begun. 1361. The objection must be made before trial. 1362. Powers of commissioners. 1363. Attendance before commis- sioners, how enforced. 1364. Default of witness before com- missioner. 1865. Witness appearing before a jury of view or commissioner paid as for attending court. 1306. Subpoenas to be issued by clerk in cases not provided for. 1307. Witness while attending court exempt from arrest iu civil cases. Chap. 32.] EVIDENCE, DEPOSITIONS, ETC. 535 Section. liJ68. Witnesses not entitled to tlieir fees in advance. 1369. Witness to prove attendance at each court; may recover pay for attendance. 1370. Ticliets to Idc filed with clerk and taxed as costs; only two witnesses allowed to prove same fact. 1371. After removal of cause subpcE- Section. nas and commissions to take depositions may issue from either court. 1372. When a subpoena duces tecum may issue. 1373. Courts may order parties to produce books or papers; plaintiH failing non-suited ; de- fendant failing judgment ren- dered against him. Sec. 1336. Evidence necessary to support title under H. E. McCulloch. R.C., c. 44, s. 1. 1819, c. 1021. In all actions or suits, wherein it may be necessary for either party to prove title, by virtue of a grant or grants made by the king of Great Britain or Earl Granville to Henry McCulloch, or Henry Eustace McCulloch, it shall be sufficient for such party, in the usual manner, to give evidence of the grant or conveyance from the king of Great Britain or Earl Granville to the said Henry McCulloch, or Henry Eustace McCulloch, and the mesne conveyances thereafter, without giving any evidence of the deed or deeds of release, relinquishment or confirma- tion of Earl Granville to the said Henry McCulloch, or Henry Eustace McCulloch, or the power or powers of at- torney, by which the conveyances from the said Henry McCulloch, or Henry Eustace McCulloch, purport to have been made. Sec. 1337. Grant or copy from proprietor, sufficient evi- dence of title under him. K. C, c. 44, s. 2. 1807, c. 734. In all trials where the titles of either plaintiff or de- fendant shall be derived from Henry Eustace McCulloch, or Henry McCulloch, out of their tracts number one and three, it shall not be required of such party to produce, in support of his title, either the original grant from the crown to the proprietors, or a registered copy thereof; but in all such cases, the grant or deed executed by such reputed proprietors, or by his or their lawful attorney, or a certified copy thereof, shall be deemed and held suf- ficient proof of the title of such proprietors, in the saiiie manner as though the original grants were produced in evidence. 536 EVIDENCE, DEPOSITIONS, ETC. [Chap. 32. Sec. 1338. Evidence of the laws of other states, territories and countries. R. C, c. 44, s. 3. 1823, c. 1193, ss. 1, 3. C. C. P., s. 300. A printed copy of a statute, or otlier written law, of another state, or of a teriitory, or of a foreign country, or a printed copy of a proclamation, edict, decree oi- or- dinance, by the executive thereof, contained in a book or publication, purporting or proved to have been published by the authority thereof, or proved to be commonly ad- mitted as evidence of the existing law, in the judicial tribunals thereof, shall be evidence of the statute, law, proclamation, edict, decree, or ordinance. The unwritten, or common law of another state, or of a territory, or of a foreign country, may be proved as a fact by oral evidence. The books of the reports of cases, adjudged in the courts thereof, shaU also be admitted as evidence of the unwrit- ten or common law thereof. .A.nd either party may also exhibit a copy of the law of such state, territoiy, or for- eign country, duly certified by the secretary of state of this state as having been copied from a printed volume of the laws of such state, teri-itory or country, on file in the state library, or iu the offices of the governor or sec- retary of state. State V. Twitty, 2 Hawks. 441; State v. "Welsh, 3 Hawks, 403; State v. Jackson, 2 Dev., 563; Stale v. Patterson, 2 Ired., 346; McDougald v. Smith, 11 Ired., 576. Sec. 1339. Statutes, how proved. R. C, c. 44, s. 4. All statutes, or joint resolutions, passed by the general assembly, may be read in evidence from the printed stat- ute book. Sec. 1340. Other evidence of some acts. R. C, c. 44, s. 5, 1826, c. 7, s. 2. Any private act published by Francis X. Martin, in his collection of private acts, or a copy of any act of the gen- eral assembly certified by the secretary of state, shall be received in evidence in every court. Sec. 1341. Copy of survey from office of secretary of state good evidence. R. C, c. 44, s. O. 1822, c. 1 154. Copies of the plots and certificates of survey, or their accompanying warrants, and all abstracts of grants, which may be filed in the office of the secretary of state, certified by him as true copies, shall be as good evidence, in any court, as the original. Tolsou V. Mainor, 85—235. Chap. 32.] EVIDENCE, DEPOSITIOiXS, ETC. 537 See 1343. Copies of official writiiiffs competent evidence. B. C, c. 44, s. ». 187 l-'2, c. 91, s. 1. 17i)2, c. 368, s. 11. Copies of all official bonds, ^vritings, papers, or docu- ments, recorded or filed as records in any court or public office, or lodged in the office of the governor, treasurer auditor, secretary of state, attorney general or adjutant general, shall be as competent evidence as the originals when certified by the keeper of such records or writ ngs under the seal of his office, when there is such seal or under his hand when there is no such seal, unless the court shall order the production of the original. Governor v, McAfee, 2 Dev., 15; Clark v. Diggs, 6 Ired., 159; McLeaa V. Buclianan, 8 Jon., 444. Sec. 1343. Records of administration, or letters testa- mentary in other states, how certified. R. C, c. 44, s. 7, 1834, c. 4. R. S. (U. S.), ss. 905, 906. When letters testamentary or of administration on the goods and chattels of any person deceased, being an in- habitant in another state or territory, have been granted, or a return or inventory of the estate has been made, a copy of the recoi-d of administration or of the letters testa- mentary, and a copy of an inventory or return of the effects of the deceased, after the same has been granted or made, agreeable to the laws of the state where the same has been done, being properly certified, either ac- cording to the act of congress or by the proper officer ot the said state or territory, shall be allowed as evidence. ■ Sec 1344. Wills or deeds in other states proved by cer- tified copies. R. C, c. 44, s. 9. 1803, c. 633. In cases where inhabitants of other states or territories, by win or deed, devise or convey property situated m this state and the original will or deed cannot be obtained for registration in the county where the land lies, or where the property shall be in dispute, a copy of said will or deed, (after the same has been proved and regis- tered or deposited, agreeable to the laws of the state wher-e the person died or made the same,) being properly certified, either according to the act of congress, or by the proper officer of the said state or territory, shall be read as evidence. Knisht V. Wall, 3 D. & B., 135; Miazza v. Calloway, 74—31. 638 EVIDENCE, DEPOSITIONS, ETC. [Chap. 32. Sec. 1345. In suits on bonds of officers or trustees, evi- dence against principal admissible against sureties. R. C, c. 44, s. lO. 1881, c. 8. 1844, c. 38, s. 1. In actions brought upon the official bonds of clerks of courts, sheriffs, coroners, constables, or other public officers, and also upon the bonds of executors, adminis- trators, collectors or guardians, when it may be necessary for the plaintiff to prove any default of the principal obligors, any receipt or acknowledgment of such obligors, or any other matter or thing which, by law would be ad- missible and competent for or toward proving the same as against him, shall in like manner be admissible and competent' as presumptive evidence only, against aU or any of his sureties who may be defendants with or with- out him in said actions. State V. Woodside, 8 Ired., 104; State v. Cauble, 70—62; State v. Pike, 74—531; Lewis v. Fort, 75—251; Badger v. Daniel, 79—372. Sec. 1346. Evidence in land suits in Haywood and Hen- derson counties. R. C, c. 44, s. 11. 1842, c. 60. In aU legal controversies touching lands in the counties of Haywood and Henderson, in which either party shall claim title under any sale for taxes alleged to have been due and laid, in and for the year one thousand seven hundred and ninety-six, or aiiy preceding year, the re- cital contained in the deed or assurance, made by the sheriff or other officer conveying or assuring the same, of the taxes having been laid and assessed, and of the same having remained due and unpaid, shall be held and taken to be prima facie evidence of the truth of each and every of the matters so recited. Sec. 1347. Variance between execution and judgment not to affect title of purchaser. R. C, c. 44, s. 13. 1848, c. 53. Whenever property may have been sold by an officer by virtue of any execution or other process commanding the sale thereof, no variance between the execution and the judgment whereon the same was issued, in the sum due, in the manner in which it is due, or in the time when it is due, shall invalidate or affect the title of the purchaser of such property. Lyerly v. Wheeler, 11 Ired., 288; Green v. Cole, 13 Ired., 425. Sec. 1348. Deeds registered and lost, and the registry also destroyed, presumed to have been in due form. R. C, c. 44, s. 14. 1854, c. 1 7. Whenever it shall be shown in any judicial proceeding, Chap. 32.] EVIDENCE, DEPOSITIONS, ETC. 539 that a deed or conveyance of real estate has heen lost or destroyed, and that the same had been registered, and that the register's book containing the copy has been de- stroyed by fire or other accident, so that a copy thereot cannot be had, it shall be presumed and held, unless the contents be shown to have been otherwise, that such deed or conveyance transferred an estate m fee-simple, if the grantor was entitled to such an estate at the time of conveyance; and that it was made upon sufficient con- sideration. Sec. 1349. Evidence of counsel in cases of fraud where the state is concerned. 1874-'5, c. 213. In cases where fraud upon the state is charged it shall not be a sufficient cause to excuse any one from impart- ing any evidence or information legally required of him, because he came into the possession of such evidence or in- formation by his position as counsel or attorney before the consummation of such fraud, and any person refus- ing for such cause to answer any question when legally required so to do shall be guilty of contempt, and pun- ished at the discretion of the court or other body de- manding such information: Provided, that it shall not be competent to introduce any admissions thus made on the trial of any persons making the same. Sec. 1350. No witness incapacitated by interest or crime. 1866, c. 43, ss. 1, 4. 1869-'70, c. 177. 1871-'2, c. 4. No person offered as a witness shall be excluded by •reason of incapacity from interest or crime, from giving evidence either in person or by deposition, according to the practice of the court, on the trial of any issue joined, or of any matter or question, or on any inquiry arising in any suit or proceeding, civil or criminal, in any court, or before any judge, justice, jury or other person having, by law, authority to hear, receive and examine evidence; and every person so offered shall be admitted to give evi- dence, notwithstanding such person may or shall have an interest in the matter in question, or in the event of the trial of the issue, or of the suit or other proceedmg m which he is offered as a witness. This section shall not be construed to apply to attesting witnesses to wills. State V. Rose & Vaughan, Phil., 406; Rice v. Keith, 63-319; State y. Adair, 68—68; State v. Phipps, 76—203. 540 EVIDENCE, DEPOSITIONS, ETC. [Chap. 32. Sec. 1351. Evidence of parties admissible. 186C, c. 43, ss. 2, 3. On tlie trial of any issue, or of any matter or question, or on any inquiry arising in ^^y action, suit or other pro- ceeding in court, or before any judge, justice, jury or other pereon having, by law, authority to hear and exam- ine evidence, the parties themselves and the person in whose behalf any suit or other proceeding may be brought or defended, shall, except as hereinafter provided, be competent and compellable to give evidence, either viva voce, or by deposition, according to the practice of the court, in behalf of either or any of the parties to said action, suit or other proceeding. Nothing in this section shall be construed to apply to any action or other pro- ceeding in any court instituted in consequence of adul- tery, or to any action for criminal conversation. Hansley v. Hansley, 10 Ired., 506; State v. Ludwick, Phil., 404; Stale v. Rose & Vauglian, Phil., 406; State v. Prince, C3— 509; Boykin v. Boykiu, 70—263; Isler v. Dewey, 71—14; State v. Phipps, 76—203. Sec. 1352. Mortuary tables evidence. 1883, c. 225. In all civil actions, special proceedings or other modes of litigation, whenever it shall be necessary to establish the expectancy of continued life of any person from any period of such person's life, whether lie be living at the time or not, the table hereto appended shall be received in all courts and by all persons having power to deter- mine litigation as evidence, with other evidence as to the health, constitution and habits of such person, of such expectancy represented by the figures in the columns headed by the words "completed age" and "expectation" respectively : Completed Age. 10 Expectulion. 43.7 Completed Age. 23 ...... . '24 Expeci.Miou 40.9 11 4S 1 . . ..30 5 12 47.4 4r..s 4(i.2 4.''. 5 9.5 38.8 13 „ 14 2(i 27 38.1 37.4 15 '>H . . 3fi.7 Hi 17 44.0 44.2 ... 43 5 29 30 36.0 35 3 J8 31 32 34.6 19 4'> «) 33.9 20 40 2 . 41 5 33 83 2 21.... 34 32.5 22.... ... 40.9 35 31.8 Chap. 82.] EVIDENCE, DEPOSITIONS, ETC. 541 Completed Age. Expectation. 36 . 31.1 37 30.4 38 39 29.6 28.9 40 41 28.2 27.5 42 43 26.7 26.0 44 25.3 45 46 ...... ..24.5 23.8 47 23.1 48 49 50 51 52 22.4 21.6 20.9 20.2 19.5 53 18.8 54 18.1 55 17.4 56 16.7 57.... ... 58 59 60 16.1 15.4 14.7 14.1 61 62 13.5 12 9 63 64 .... ..12.3 11.7 65 11.1 Completed Age. 66. 67. 68. 69. 70. 71. 73. 73. 74. 75. 76 77. 78 79. 80. 81. 82. 83. 84. 85. 86. 87. 88. 89. 90. 91. 92. 93. 94. 95. Expectation. .. ..10 5 10.0 .... 9 5 .... 9.0 .... 8.5 . .. 8.0 .... 7.6 .... 7.1 .... 6.7 .... 6.3 .. .. 5.9 .... 5.5 .... 5.1 .... 4.8 .... 4.4 .... 4.1 .... 3.7 3.4 .... 31 .... 2.8 .... 2.5 .... 2.2 . .. 1.9 ., .. 1.7 1.4 .... 1.2 ... 1.0 .... .8 6 5 Sec. 1353. Defendants in criminal proceedings competent in their own belialf at tlieir own request; liusband or wife of defendant competent for defeudaut. 1881, c. 89, s. 3. 1881, c. 110, ss. 3, 3. In the trial of all indictments, complaints or other proceedings against persons charged with the commission of crimes, offences and misdemeanors, the person so charged shall at his own lequest, but not otherwise, be a competent witness, and his failure to make such request shall not create any presumption against him. The hus- band, or wife of the defendant, in all criminal actions or proceedings, shall be a competent witness for the defend- ant; but the failure of such witness to be examined shall not be used to the prejudice of the defence. But every 5i2 EVIDENCE, DEPOSITIONS, ETC. [Chap. 32. such person examined as a witness shall be subject to be cross-examined as other witnesses. • State V. Efler, 85—585; Stirte v. Spier, 86—600; State v. Smith, 86—705. Sec. 1354. Incompetent evidence, what. 1856-'7, c. 23. 18GO, c. 43, s. 3. 1868-'9, c. 209, s. 4. Nothing in this chapter, except as provided in the pre- ceding section, s1iaU render any person, who in a_ny crim- inal proceeding is charged with the commission of a criminal offence competent, or compellable, to give evi- dence against himself, nor shall render any person com- pellable to answer any question tending to criminate himself, nor shall in any criminal proceeding render any husband competent or compellable to give evidence against his wife, nor any wife competent or compellable to give evidence against her husband: Provided, that in aU criminal prosecutions of a husband for an assault and battery upon the person of his wife, or for abandoning his wife, or for neglecting to provide for her support, it shall be lawful to examine the wife in behalf of the state against the said husband. State V. Ludwick, Pbil.,401; State v. Eose, Pbil., 406; State v. Mooney, 64—54; State v. Davidsou, 77—522; Slate v. Parrott, 79—615; Tabor v. Ward, 83—291; State v. Gardner, 84—733; Stale v. Hamlett, 85—520; State V. Smith, 86—705. Sec. 1355. Kules for summoning witnesses; sMbpa5na,how issued and served. K. C, c. 31, s. 59. 177 7, c. 115, s. 36. In obtaining the testimony of witnesses in causes de- pending in the supeiior, criminal and inferior courts, the following rules shall be observed in practice, to-wit: In suits where witnesses are to appear at any court, the clerk at the instance of the party shall issue a subpoena, directed to the sheriff or other officer of the county where such witnesses reside, mentioning the time and place for their appearance, the names of the parties to the suit wherein the testimony is to be given, and the party at whose instance they are summoned. Every subpoena made returnable immediately, shall be issued only in term time, and shall be personally served on the witness therem named. A copy of every subpoena issued by the clerk m vaca- tion, in case any witness therein named is not to be found, maybe left at his usual place of residence; and such copy, certified by the sheriff or other officer, and left as afore- said, shaU" be deemed a legal summons, and the person Chap. 32.] EVIDENCE, DEPOSITIONS, ETC. 543 therein named shall be bound to appear in the same man- ner as if personally summoned. Sec. 1356. Witnesses to attend from term to term till dis- charged; penalty for non-attendance; entitled to pay until discharged; no execution to issue against de- faulting witness until after notice. R. C, c. 31, ss. CO, 61, 62. 1777, c. 115, ss. 37, 38, 43. 1799. c. 528. 1801, c. 591. Every witness, being summoned to appear in any of the said courts, in manner before directed, shall appear accordingly, and continue to attend from term to term until discharged; when summoned in a civil suit, by the court or the party at whose instance such witness shall be summoned; or when summoned in a criminal prose- cution, until discharged by the court, the prosecuting officer, or the party at whose instance he was summoned; and in default thereof shall forfeit and pay, in civil cases, to the party at whose instance the subpoena issued, the sum of forty dollars, to be recovered by motion in the cause, and shall be further hable to his action for the full damages which may be sustained for the want of such witness's testimony; or if summoned in a criminal prose- cution shall forfeit and pay eighty dollars for the use of the state, or the party summoning him. Provided, that if the civil suit shall, in the vacation, be accommodated and settled between the parties, and the party at whose instance such witness was summoned should omit to discharge him from further attendance, and for want of such discharge, he shall attend at the next term, in that case the witness, upon oath made of the facts, shall be entitled to a ticket from the clerk in the same manner as other witnesses, and shall recover from the party, at whose instance he was summoned, the allowance which is given to witnesses for their attend- ance, with costs. Provided, further, that no execution shall issue against any defaulting witness for the forfeiture aforesaid, but after notice made known to him to show cause against the issuing thereof ; and if sufficient cause be shown of his incapacity to attend, execution shall not issue, and the witness shall be discharged of the forfeiture without costs; but otherwise the court shall, on motion, award execution for the forfeiture against the defaulting wit- ness. EUcrv. Roberts, 3 Irecl., ll;Kinzey v. King, 6Ired., 7fi; Icehourv. Mar- 54i EVIDENCE, DEPOSITIONS, ETC. [Chap. 32. tin. Busb., 478; Ward v. Bell, 7 Jon., 79; Fite v. Lander, 7 Jon.. 247; Slate V. Gwyn, Phil., 445. Sec. 1357. Depositions, how taken. K. C. c. 31, s. 63. 1881, c. 379. Any party in a civil action or special proceeding may take the depositions of persons whose evidence he may desire to use, without any special order therefor, unless the witness shall be bevond the Umits of the United States. Written notice of the time and place of taking a deposition, specifying the name of the witness, must be served by the party at whose instance it is taken upon the adverse party or his attorney. The time for serving such notice shall be as follows: three entu-e days when the party notified resides within ten miles of the place where the deposition is to be taken; in other cases, where the party notified resides in the state, one day more for every additional twenty miles, except where the deposi- tion is to be taken within ten miles of a railway in run- ning operation in the state, when one day only shall be given for every hundred miles of railway to the place where the deposition is to be taken. When a deposition is to be taken beyond the state, ten days' notice of the taking thereof shall be given, when the party whose de- position is to be taken resides within ten miles of a rail- way connecting with a line of railway within twenty miles of the place where the person notified resides. In other cases, where there are no railways running as above specified, twenty days' notice shall be given. When objection is taken to tlie reading of any such de- position, upon the ground that there are no railways or connecting railways to and from the points specified in this section, or that the notice given had otherwise been actually insuflficient, it shall devolve upon the party ob- jecting to satisfy the court of the truth of his allegation. Depositions shall be taken on commission, issuing from the court and under the seal thereof, by one or more commissioners, who shall be of kin to neither party, and shall be appointed by the clerk. Depositions shall be subscribed and sealed up by the commissioners, and re- turned to the court, the clerk whereof shall open and pass upon the same, after having first given the parties or their attorneys not less than one day's notice; and all such depositions, when passed upon and allowed by the clerk, without appeal, or by the judge upon appeal from the clerk's order, shall be deemed legal evidence, if the witness be competent. Chap. 32.] EVIDENCE, DEPOSITIONS, ETC. 545 Harris v. Peterson, 3 0. L. Repos., 471; State v. Webb, 1 Hay., 104; English V. Camp, 1 Hay., 358; Ridge's Orphans v. Lewis, Conf., 483; Ward V. Ely, 1 Dev., 373; Bedell v. State Banli, lDev.,483; Harris v. Yarborough, 4 Dev., 160; Barton v. Morphis, 4 Dev., 240; Duncan v. Hill, 2D. &B., 291; Sloan v. Williford, 3 Ired., 307; Beasley v. Downy, 10 Irod , 284; McDougald v. Smith, 11 Ired., 576; Alexander v. Walker, 13 Ired ' 13; Kea v. Robinson, 4 Ired. Eq., 427; Seliorn v. Williams, 6 Jon., 575- Hix V. Fisher, 3 Winst., 84; Hill v. Bell, Phil., 132; State ex rd. Tid- line'v. Hickerson, 72-431; Macay, ezrparU, 84—63; Burnhardt v. Smith, 86—473. Sec. 1358. What depositions may be read on the trial. B. C, c. 31, s. 63, 1777, c. 115, ss. 3t>, 40, 41. 1803, c. 633. 1838, c. 24, ss. 1, 3. 1836, c. 30. 1850,0. 189. 1869-'70, c. 227, s. 11. 1881, c. 279, ss. 1, 3. , J • Every deposition taken and returned as prescribed in the preceding section, may be read on the trial of the action or proceeding, or before any referee, m the tol- lowing cases, and not otherwise: (1) If the witness is dead, or has become insane smce the deposition was taken; . (2) If the witness is a resident of a foreign country, or of another state, and is not present at the trial; (3) If the witness is confmed in a prison outside the county in which the trial takes place. (4) If the witness is so old, sick or infirm as to be unable to attend court. tt u i o^ <- (5) If the witness is the president of the United btates, or the head of any department of the federal govern- ment, or a judge, district attorney, or clerk of any court of the United States, and the trial shaU take place during the term of such court. (6) If the witness is the governor of the state, or the head of any department of the state government or the president of the university, or the head of any other in- corporated college in the state. (7) If the witness is a justice of the supreme court, or a judge, presiding officer, clerk or sohcitor of any court of record, and the trial shaU take place durmg the terra of such court. „ (8) If the witness is a member of the congress ot the United States, or a member of the general assembly, and the trial shall take place durmg a session ot the body of which he is a member. • -, ^ + (9) If the witness has been duly summoned, and at the time of the trial, is out of the state, or is more than 646 EVIDENCE, DEPOSITIONS, ETC. [Chap. 32. seventy-five miles by the usual public mode of travel from (he place wrhere the court is sitting, without the procurement or consent of the party offering his de- position. Barnbardt v. Smith, 86—473. Sec. 1359. Depositions in civil actions before a justice of the peace. 1872-'3, c. 33. Any party in a civil action before a justice of the peace may take the depositions of all persons whose evidence he may desire to use in the action; and to do so, he may apply to the clerk of the superior court for a commission to take the same, and shall proceed in all tilings in taking such depositions as if such action was pending in the superior court. When any such depositions are returned to the clerk, they shall be opened and passed upon by the clerk, and delivered to the justice of the peace, before whom the trial is to be had; and the reading and using of said depositions shall conform to the rules of the su- perior court. Sec. 1360. Depositions not to be quashed after a trial has begun. 1869-'70, c. 227, s. 12. No deposition shaU be quashed, or rejected, on objec- tion first made after a trial has begun, merely because of an irregularity in taking the same, provided it shall ap- pear that the party objecting had notice that it had been taken, and it was on file long enough before the trial to enable him to present his objection. Carson v. Mills, 69—32; Katzenstein v. R. R. Co., 78—286. Sec. 1361. The objection must be made before trial. 1869-'70, c. 227, ss. 13, 17. At any time before the trial, or hearing of an action or proceeding, any party may make a motion to the judge or court to reject a deposition for irregularity in the taking of it, either in whole or in part, for scandal, impertinence, the incompetency of the testimony, for insufhcient notice, or for any other good cause. The objecting party shall state his exceptions in writing. Street v. Bryan, 155-019: Ilicks v. Fisher, 2 Winst., 84; Carson v. Mills, 69—32; Kercliner v. Reilly, 72—171; Katzensteiu v. R. R. Co., 78—286; Wasson v. Liuster. 83—575; Barnhardt v. Smith, 86 — 473. Chap. 32.] EVIDENCE, DEPOSITIONS, ETC. 547 Sec. 1362. Powers of commissioners. R. C, c. 31, s. 64. 1777, c. 15, s. 43. 1805, c. 685, ss. 1, 2. 1848, c.66. 1850, c. 188. Commissioners to take depositions, appointed by the courts of this state, or by the courts of the states or terri- tories of the United States, arbitrators, referees, and all persons acting under a commission issuing from any court of record in this state, are hei-eby empowered, they or the clerks of the courts respectively in this state, to which such commission shall be returnable, to issue subpoenas, specifying the time and place for the attendance of wit- nesses before them, and to administer oaths to said wit- nesses, to the end that they may give their testimony. And any witness, appearing before any of the said per- sons, and refusing to give his testimony on oath touching such matters as he may be lawfully examined unto, shall be committed, by warrant of the person before whom he shaU so refuse, to the common jail of the county, there to remain until he may be willing to give his evidence; which warrant of commitment shall recite what author- ity the person has to take the testsmony of such witness, and the refusal of the witness to give it. Sec. 1363. Attendance before commissioner, how en- forced. R. C, c. 31, s. 65. 1848, c. 66, s. 2. 1850, c 188, ss. 1, 2. The sheriff of the county where the witness may be, shall execute all such subpoenas, and make due return thereof before the commissioner, or other person, before whom the witness is to appear, in the same manner, and under the same penalties, as in case of process of a like kind returnable to court; and when the witness shall be sum- moned five days before the time of his required attend- ance, and shall fail to appear according to the precept and give evidence, the default shall be noted by the commis- sioner, arbitrator, or other person aforesaid; and in case the default be made before a commissioner acting under authority from courts without the state, the defaulting witness shall forfeit and pay to the party at whose in- stance he may be summoned fifty dollars, and on the trial for such penalty, the summons issued by the com- missioner, or other person as aforesaid, with the indorse- ment thereon of due service by the officer serving the same, together with the default noted as aforesaid and indorsed on the summons, shall he jyrima facie evidence of the forfeiture, and sufficient to entitle the plaintiff to 5.tS EVIDENCE, DEPOSITIONS, ETC. [Chap. 32. judgment for the same, unless the witness may show his incapacity to have attended. Sec. 13G4- Default of witness before commissioner. R. C, c. 31, .s. 66. 1850, c. 188, s. 2. But in case the default be made before a commis- sioner, arbitrator, referee or other person, acting under a commission or authority from any of the couits of this state, then the same shall be certified under his hand, and returned with the subpoena to the court by which he was commissioned or empowered to take the evidence of such witness; and thereupon the court shall adjudge the defaultmg witness to pay to the party at whose instance he was summoned, the sum of forty dollars; but execu- tion shall not issue therefor vmtil the same be ordered by the court, after such proceedings had as shall give said witness an opportunity to show cause, if he can, against the issuing thereof. Sec. 1365. Witnesses appearing before a jury of view, or commissioner, paid as for attending court. B. C, c. 31, s. 67. 1805, c. 685, ss. 1, 2. 1848, c. 66, s. 1. 1850, c. 188, s. 3. Witnesses summoned to appear at any survey, or be- fore any jury of view, or before any commissioner, arbi- trator, referee, or other person authorized to require their attendance, shall be entitled to the same fees as for similar attendance at the court of the county, and may prove, by their own oath, their attendance, mileage, and ferriage before such person, who is hereby autJiorized to administer the oath: and when they shall attend on any commission issuing from without the state, they may recover the fees for attendance against the party sunmioningthem, or his agent or attorney duecting them to be summoned; and when they shall attend under a commission or authority from any coui-t in this state, the fees for attendance shall be proved as aforesaid, and bo certified to the proper court and taxed as if the wit- ness had attended tiie court, among the costs of the cause; but nevertheless, such fees may be immediately recovered against the party summoning. Moore v. Coni'rs, 70—340. Sec. 1.366. Subpoenas to be issued by clerk in oases not provided for. R. C, c. 31, s. 68. 1806, c. 685, ss. 1, 2. In all cases not otherwise provided for, when witnesses are required to attend any court, conunission, referees, Chap. 32.] EVIDENCE, DEPOSITIONS, ETC. 549 order of survey, or jury of view, a summons shall be is- sued by the clerk of the court, at the request of either party, expressing the day and place when and where they are to appear, the names of the parties to the suit, and in ■whose behalf summoned. Sec. 13G7. Witnesses, while attending court, exempt from arrest in civil cases. K. C, c. 31, s. 70. 1777, c. 115, s. 44. Every witness shall be exempt from arrest in civil cases during his attendance at any court, or before a commis- sioner, arbitrator, referee or other person authorized to command the attendance of such witness; and during the time such witness is going to and returning from the place of such attendance, allowing one day for eveiy thirty miles such witness has to travel to and from his place of residence. Haramerskold v. Rose, 7 Jon., 629; Fentriss v. Brown, Piiil., 373. Sec. 1368. "Witnesses not entitled, to their fees in advance. 1868-'(), c. 279, sub chap. 11, ss. 3, 4. Witnesses are not entitled to receive their fees in ad- vance; but no witness in a civil action or special proceed- ing, unless summoned on behalf of the stale or a munic- ipal corporation, shall be compelled to attend more than one day, if the party by or for whom he was summoned, shall, after one day's attendance on request and presenta- tion of a certiticate, fail or refuse to pay what then may be due, for traveling to the place of examination, and lor the number of days of attendance. Moore v. Com'rs, 70 — 340; Lewis v. Com'rs, 74—194; Bushee v. Surles, 85—90. Sec. 1369. Witness to prove attendance at each court; may recover pay for attendance. R. C, c. 31, s. 73. 1777, c. 115, s. 46. 1796, c. 458, s. 1. 1868-'9, c. 279, s. c. 11, s. 21. Every person summoned, who shall attend as a witness in any suit, shall, befoie the clerk of the court, or before the referee or officer taking the testimony, ascertain by his own oath or affirmation the sum due for traveling to and from court, attendance and ferriage, which shall be certified by the clerk; and on failure of the jiarty, at whose instance such witness was summoned, (wilncsses for the state and municipal corporations excei)ted.) to pay the same previous to the departure of the witness from court, such witness may at any time sue for and recover 550 EVIDENCE, DEPOSITIONS, ETC. [Chap. 32. the same from the party summoning him; and the cer- tificate of the clerk shall be sufficient evidence of the debt: Provided, that where recovery may be had before a justice of the peace on a witness ticket, the justice shall deface it by writing the word judgment, and deliver the same to the person of whom it is recovered. Mooie V. Islcr, Mar., IH; Thompson v. Hodges, 3 Hawks, 318; Carter v. Wood, 11 Ircd., 23; Deaver v.Com'rs, 80—116; Belden v. Snead, 8-1—243. Sec. 1370. Tickets to be filed with clerk, and taxed as costs; only two witnesses allowed to prove same fact. K. C, c. 31, s. 74. 1783, c. 189, s. 3. 1790, c. 458, s. 2. At the court, where the cause shall be finally deter- mined, the party recovering judgment shall ille in the clerk's office the witness tickets; the amount whereof shall be taxed in the biU of costs, to be levied and re- covered for the benefit of said party: Provided, that the party cast shall not be obliged to pay for more than two witnesses to prove a single fact. Holmes v. Johnson, 11 Ired., 55; Woolly v. Robinson, 7 Jon., 30; Loftin v. Baxter, 66—340; Porter v. Durham, 79—596; Belden v. Snead, 84—243. Sec. 1371. After removal of cause, subpoenas and com- missions to take depositions may issue from either court. B. C, c. 31, s. 72. 1810, c. 787. 1832, c. 8. When any cause shall be removed from the superior court of one county to that of another, after the order of removal, depositions may be taken in the case, and subpoenas for the attendance of witnesses and commis- sions to take depositions may issue from either of the said courts, under the same rules as if the case had been originally commenced in the court from which the subpoenas or commissions issued. Com'rs V. Lemly, 85 — 341. Sec. 1372. When a subpoena duces tecum may issue. R. C, c. 31, s. 81. 1797, c. 47C. In all causes depending in any court, in which the pro- duction of an original paper, lodged in any of the public offices of the state, or in any office of any court, shall become necessary, the court may issue the process of subpoena duces tecum, requiring such persons who hold said offices to attend the court with such original paper, in like manner and under the same penalties as witnesses are required in cases of subpcena to testify. Chap. 33.] EXECUTORS, ETC. 551 Sec. 1373. Courts may order parties to produce books or papers; plaintiflf failing, non-suited; defendant failing, judgment rendered against liim. R. C, c. 31, s. 8a. 1831, c. 1095. 1828, c. 7. The courts shall have full power, on motion and due notice thereof given, to require the parties to produce books or writings in their possession or control which contain evidence pertinent to the issue, and if a plaintiff shall fail to comply with such order, and shall not satis- factorily account for his failure, the court, on motion, may give the like judgment for the defendant, as in cases of non suit; and if a defendant shall fail to comply with such order, and shall not satisfactorily account for his failure, the court, on motion as aforesaid, may give judgment against him by default. Graham v. Hamilton, 3 Ired., 381; McGibboney v. Mills, 13 Ired., 163; Branson v. Fentress, 13 Ired., 165; Fuller v. McMillan, Busb., 206; Ward V. Simmons, 1 Jon., 404; Murcliison v. McLeod, 2 Jon., 239; Maxwell V. McDowell, 6 Jon., 301; Justice v. Bank, 83—8; McLeod v. BuUard, 84—515; Com'rav. Lemly, 85—341. CHAPTEE THIRTY-THREE. EXEOUTOES AND ADMINISTKATOES. Sbction. 1374. When clerk of the superior court has jurisdiction of the estate. 1375. Clerk first acquiring jurisdic- tion to have exclusive jurisdic- tion. 1376. Letters of administration, to whom granted. 1377. Di.squalifications. 1378. Renunciation of persons hav- ing prior right. 1379. Persons having prior right dis- qualitied or absent. 1380< Wlien person entitled to ad- ministration deemed to have renounced. Section. 1381. Wliat must be shown on ap- plication. 1382. Contested administration. 1383. Letters of collection, when to issue and to whom. 1384. Qualifications, &c. 1383. Authorities, &c. 1.38(3. Authority, when to cease, &c. 1387. Oailis. &c., to be taken. 1388. Administrator, &c., to give bond; proviso. 1389. Public administrator, how ap' pointed. 1390. His bond. 1391. When bond to be enlarged. ■ 1392. Bond, when to be renewed. 552 EXECUTOES, ETC. [Chap. 33. Section. 1393. Oath of public administra- tor. 1394. When public administrator to obtain letters. 1395. Powers and duties; proviso; penalty. 1396. Inventory to be returned, when. 1397. Compelling inventory 1398. New assets. 1399. Annual accounts. 1400. Fiiilure to account. 1401. Vouchers. 1403. Final accounts. 1403. Trust estate in personalty deemed personal assets. 1404. What proceeds of sale of real property deemed personal assets. 1405. What proceeds deemed real assets. 1406. Distinction between legal and equitable assets al)olished. 1407. Crops, when ungalhercd at decease, deemed personal assets. 1408. Power of executor or admin- istrator to sell personal prop- erty. 1409. Same as to collector. 1410. Sales, how to be made. 1411. To sell for cash, when. 1413. Sale of evidences of debt. 1413. Proceeds of sale, how secured. 1414. Hours of sale. 1415. Powers under wills. 1416. Order of payment. 1417. Rate of payment. 1418. No preference allowed. 1419. Debts not due. 1 120. Debts due executor, &c. 1431. Advertising for claims; notice for six weeks. 1433. If no paper in county, adver- tisement to be made at court house, <&c. 1433. How advertisements to be proved. Section. 1434. Notice may be served person- ally. 1425. Affidavits may be required. 1426. Referring claim. 1437. Limitations of actions on dis- puted claims. 1428. Omission to present claim within twelve months. 1439. Costs against executors, &c., when allowed. 1430. Undevised real estate first I chargeable with debts. 1431. Debtor named executor not discharged. 1433. No lien created by commence- ment of suit. 1433. To what estates applicable; proviso. 1434. In case of bona fde adminis- tration prior to July, 1809. 1435. Administrators may sell cer- tain evidences of debt. 1436. Application to sell real prop- erty. 1437. Contents of petition. 1438. Heirs and devisees to be par- ties. 1439. Infant defendants. 1440. When issues joined. 1441. Issue as to title. 1443. Conveyance by heir or devisee void when. 1443. Power of clerk. 1444. Order of sale; what to contain. 1445. Notice of sale. 1446. What real estate subject to sale. 1447. Judgment in case of fraudu- lent conveyance. 1448. Creditors may bring a special proceeding. 1449. By what rules governed. 1450. Summ, c. 1 16, s. 38. -Such writ of habeas corpus may be issued by any jus- tice of the peace or clerk of the superior court upon ap- plication as provided in the preceding section, to bring any person confined in the jail or prison of the same county where such justice or clerk may reside, to be ex- amined as a witness before such justice or clerk. And in cases where the testimony of any prisoner is needed in a proceeding before a justice of the peace, or a clerk, and such person be confined in a county in which such justice or clerk does not reside, appUcation for habeas corpus to testify may be made to any judge of the supreme or superior court. Sec. 1665. Application, what to contain. 1868-'9, c. 116, s. 39. The application for the writ shall be made by the party to the suit or proceeding in which the writ is requii-ed, or by his agent or attorney. It must be verified by the ap- plicant, and shall state: (1) The title and nature of the suit or proceeding in regard to which the testimony of such prisoner is de- sired; (2) That the testimony of such prisoner is material and necessary to such party on the trial or hearing of such suit or proceeding, as he is advised by counsel and verily believes. Sec. 1666. Writ, Low and by whom served. 1868-'9, c. 110, s. 40. The writ of habeas corpus to testify shall be served by the same pei-son, and in like manner in all respects, and enforced by the court or officer issuing the same as pre- scribed in this chapter for the service and enforcement of the writ of habeas corpus cum causa. Chap. 37.] IDIOTS, ETC. 639 Sec. 1667. Fees and bond on service. 1868-'9, c. 116, s. 41. The service of the writ shall not be complete, however, unless the applicant for the same shall tender to the per- son in whose custody the prisoner may be, if such person be a sheriff, coroner, constable or marshal, the fees and expenses allowed by law for bringing such prisoner, nor unless he shall also give bond, with sufficient security, to such sheriff, coroner, constable or mai-shal, as the case may be, conditioned that such applicant will pay the charges of carrying back such prisoner. Sec. 1668. Duty of officers. 1868-'9, C. 116, s. 43. It shaU be the duty of the officer to whom the writ is delivered or upon whom it is served, whether such writ be directed to him or not, upon payment or tender of the charges allowed by law, and the delivery or tender of the bond herein prescribed, to obey and return such writ ac- cording to the exigency thereof upon pain, on refusal or neglect, to foifeit to the party on whose application the same shall have been issued the sum of five hundred dollars. Sec. 1669. Prisoner to be remanded. 1868-'9, c. 116, s. 43. ■ , , After having testified the prisoner shall be remanded to the prison from which he was taken. CHAPTER THIRTY-SEVEN. IDIOTS, LUNATICS AND INEBEIATES. Section. 1670. Inquisition of lunacy. 1671. Wlio deemed an inebriate. 1673. Property of inebriate lo be re- stored him upon bis reforma- tion. 1673. How to proceed in case of per- sons confined in lunatic asy- lum. 1674. Sale of their estates. I court, Sfxtion. 1675. How and for what purpose clerks may order a sale of their estates; heirs and next of kin to be parties; proceeds, how applied and secured; how de- scend, &c. 1676. Eslates without guardian, man- aged by clerk of superior 640 IDIOTS, ETC. [Chap. 37. Section. 1677. Surplus income of insane per- sons may be advanced in cer- tain cases to next of kin. Ifi78. Purp'oses for which such ad- vancements may be made; to whom paid. 1679. All persons interested made parlies. 1680. Rule to be observed by the clerk. 1681. Clerk may select the persons to be advanced. 1682. Advancements secured against waste. Section. 1683. Appeal and removal to superior court allowed. 1684. Of what kind of insane persons advancements to be made of their estates. 1685. Decrees for advancements sus- pended on restoration to san- ity. 1686. What may be done when luna- tic /eme cmert is abandoned by her husband. 1687. Real estate belonging to the wife of a lunatic, how sold. Sec. 1670. Inquisition of lunacy. C. C. P., s. 473. Any person, in behalf of one who is deemed an idiot, inebriate, or lunatic, or incompetent from want of under- standing to manage his own affairs by reason of the ex- cessive use of intoxicating drinks, or other cause, may file a petition before the clerk of the superior court of the county where such supposed idiot, inebriate or lunatic resides, setting forth the facts, duly verified by the oath of the petitioner; whereupon such clerk shall issue an order, upon notice to the supposed idiot, inebiiate or lu- natic, to the sheriff of the county, commanding him to summon a jury of twelve men to inquire into the state of sucn supposed idiot, inebriate or lunatic. The jury shall make return of their proceedings under their bauds to the clerk, who shall file and record the same; and he shall proceed to appoint a guardian of any person so found to be an idiot, inebriate or lunatic, by inquisition of a jury, as in cases of orphans. Armstrong v. Arrington, 1 Hawks, 11; Spack v. Long, llred. Eq., 426; Bethea v. McLennon, 1 Ired., 523; Brooks v. Brooks, 3 Ircd., 389; Christ- mas V. Mitchell, 3 Ired. Eq., 535; Rippy v. Gant, 4 Ired. Eq., 443; Patton V. Thompson, 2 Jon. Eq., 411 ; Parker v. Davis, 8 Jon., 460. Sec. 1671. Who deemed an inebriate. 1879, c. 329, s. 1. Any person who habitually, whether continuously or periodically, indulges in the use of intoxicating liquors to such an extent as to stupefy his mind and to render him incompetent to transact ordinary business with safety to his estate, shall be deemed an inebriate within the mean- ing of this chapter: Provided, the habit of so indulging in such use shall have been at the time of inquisition of fit least one year's standing. Chap. 37.] IDIOTS, ETC. 641 Sec. 1672. Property of inebriate to be restored him upon his reformation. 1879, c. 339, s. 4. Whenever an inebriate for whom a guardian shall have been appointed shall become a sober person, and capable of managing his own affairs, the clerk who appointed such guardian is authorized to remove him and restore to said inebriate all his property, to manage and control in as full and ample a manner as he held the same prior to his having been adjudicated an inebriate. Sec. 1673. How to proceed in case of person coniined in lunatic asylum. 1860-'l, c. 23. If any person be confined in any asylum for lunatics and insane persons, the certificate of the superintendent of such asylum declaring such person to be of insane mind and memory, which certificate shall be sworn to and subscribed before the clerk of the superior court of the county in which such asylum is situated, and certified under the seal of court shall be sufficient evidence to authorize the clerk to appoint a guardian for such idiot, lunatic or person of insane memory. Sec. 1674. Sale of their estate. K. C, c. 57, s. 4. 1801, c. 589. Whenever it shall appear to any clerk of the superior court by report of the guardian of any idiot, inebriate or lunatic, that his personal estate has been exhausted, or is insufficient for his support, and that he is likely to become chargeable on the county, the clerk may make an order for the sale or renting of his personal or real estate, or any part thereof, in such manner and upon such terms as he may deem advisable. Such order shall specify particularly the property thus to be disposed of, with the terms of renting or sale, and shall be entered at length on the records of the court; and all sales and rentings made under this section, shall be valid to convey the interest and estate directed to be sold, and the title thereof shall be conveyed by such person as the clerk may appoint on confirming the sale; or the clerk may direct the guardian to file his petition for such purpose. Sec. 1675. How and for what purpose clerks may order a sale of their estates; heirs and next of kin to be parties; proceeds, how applied and secured; how descend, &c. K. C, c. 57, s. 5. 1773, c. 100, s. 3. 1809, c. 766. 1816, c. 907. Whenever it shall appear to the clei-k, upon the peti 642 IDIOTS, ETC. [Chap. 3T. tion of the guardian of any idiot, inebriate or lunatic, that a sale of any part of his real or personal estate is necessary for his maintenance, or for the discharge of debts unavoidably incurred for his maintenance; or, when- ever the clerk shall be satisfied that the iutei-est of the idiot, inebriate or lunatic would be materially and essen- tially promoted by the sale of any part of such estate; or whenever any part of his real estate is required for public purposes, the clerk may order a sale thereof to be made by such person, in such way and on such terms as he shall adjudge: Provided, that the clerk, if it be deemed proper, may direct to be made parties to such petition the next of kin or presumptive heirs of such non-sane person or inebriate. And if on the hearing the clerk shall oi-der such sale, the same shall be made and the proceeds applied and secured, and shall de- scend and be distributed in like manner as is provided for the sale of infants' estates decreed in like cases to be sold on application of their guardians, as directed in the chapter entitled " Guardian and Ward." Allison V. Campbell, 1 D. & B. Eq., 153; Lalliam v. Wiswall, 3 Ircd. Eq., S94; In tbe matter of Latham, 4Irid. Eq., 231; 'L^xX'ha.m ex parte, 6Ired. Eq., 406; Howard v. Thompson, 8 Ired., 367; Blake v. Respass, 77—193; Smith V. Pipldn, 79—569; Riggan v. Green, 80—126; Adams v. Tlionias, 81—296; Adams V. Thomas, 83—521. Sec. 1676. Estates without (i^uardian managed by clerk of the superior court. K. C, c. 57, s. 6. 1846, c. 43, s. 1. Whenever any person is declared to be of nonsaue mind or inebriate, and for whom no suitable pereon will act as guardian, the clerk shall secure the estate of such person according to the law relating to orphans whose guardians have been removed. Sec. 1677. Suriilus income of insane persons may be ad- vanced in cei-tain cases to next of liin. R. C, c. 57, s. 9. Whenever any nonsane person, of full age, and not having made a valid will, shall have children or grand- children, (such grandchildren being the issue of a deceased child,) and shall be possessed of an estate, real or personal, whose annual income shall be more than sufficient abun- dantly and amply to supjiort himself, and to support, maintain and educate the inembers of his family, with all the necessaries and suitable comforts of life, it may be lawful for the clerk of the superior court for the county in which such person shall have liis residence to order from time to time, and so often as may be judged Chap. 37.] IDIOTS, ETC. 643 expedient, that fit and proper advancements be made, out of the surplus of such income, to any such child, or grandchild, not beius; a member of his family and en- titled to be supported, educated and maintained out of the estate of such person. Sec. 1678. Purposes for which such advancements may be made; to whom paid. K. C, c. 57, s. 10. Such advancements shall be ordered only for the better promotion in life of such as are of age, or mari'ied, and for the maintenance, support and education of such as are under the age of twenty-one years and unmarried; and in all cases, the sums oidered shall be paid to such persons as, in the opinion of the clerk, will most effec- tually execute the purpose of the advancement : Pro- vided, that, in case the child, or grandchild, be a feme covert, the sum advanced shall be paid or secured to her, for her sole and separate use. Sec. 1679. All persons interested made parties. K. C, c. 57,s. 11. In every application for such advancements, the guard- ian of the nonsane person, and all such other persons shall be parties, as would at that time be entitled to a distributive share of his estate, if he were then dead. Sec. 1680. Rule to be observed by the clerk. R. C, c. 57, s. 12. The clerk in ordering such advancements shall as far as practicable so order the same, as that, on the death of the nonsane person, his estate shall be distributed among his distributees in the same equal manner, as if the ad- vancements had been made by the pei'son himself; and on his death, ever}^ sum advanced to a child, or grand- child, shall be an advancement, and shall bear interest from the time it may be received. Sec. 1681. Clerk may select the persons to be advanced. R. C, c. 57, s. 13. When the surplus aforesaid shall not be sufficient to make distribution among all the parties, the clerk may select and decree advancements to such of them as may most need the same, and may apportion the sum decreed in such amounts as shaU be expedient and proper. 644 IDIOTS, ETC. [Chap. 37. Sec. 1682. Advancements secured against waste. R. C, c. 57, s. 14. It shall be the duty of the clerk to withhold advance- ments from such persons as will probably waste them, or so to secure the same when they may have families, that it may be applied to their support and comfort, but any sum so advanced shall be regarded as an advancement to such persons. Sec. 1683. Appeal and removal to superior court allowed. R. C, c. 57, s. 15. Any person made a party may appeal from any order of the clerk; or may, when the pleadings are finished, require that all further proceedings shall be had in the superior court. Sec. 1684. Of what kind of insane persons advancements to be made of their estates. R. C, c. 57, s. 16. No such application shall be made under this chapter but in cases ot such permanent and continued insanity, as that the nonsane person shall be judged by the clerk to be incapable, notwithstanding any lucid intervals, to make advancements with prudence and discretion. Sec. 1685. Decrees for advancements suspended on resto- ration to sanity. R. C, c. 57, s. 17. Upon such insane person being restored to sanity, every order made for advancements shall cease to be further executed, and his estate shall be discharged of the same. Sec. 1686. What may be done when lunatic feme covert is abandoned by her husband. 1858-'9, c. 52, s. 1. Whenever ixnj feme covert lunatic shall be abandoned by her husband, she may, by her guardian, or next friend in case there be no guardian, apply to the clerk of the supei'ior court for support and maintenance, which the clerk may decree as in cases of alimony, out of any property or estate of her husband. Sec. 1687. Real Estate belonging to the wife of a lunatic, how sold. 1881, c. 361. Whei'e the wife of a lunatic owns in her own right real estate, the sale of which will promote her interest, a sale of the same may be made upon the order of the clerk of the superior court of the county where the land lies, upon the petition by the wife of said lunatic and the Chap. 38.] INTERNAL IMPROVEMENTS. 645 guardian of the lunatic husband, and the proceeds of said sale shall be paid to the wife of said lunatic. CHAPTER THIRTY-EIGHT. INTERNAL IMPEOVEMENTS. Section. 1688. Board of internal impvove- mcT.ts, who: corporate name. 1689. Sessions of board and pay of members and secretary. 1690. Board may malce rules and by- laws. 1691. Board to have charge of state's interest in railroads, canals, &c. 1693. To keep record of proceedings and report to the general as- sembly. (1) Condition of liuildings, le- pairs, &c. (3) Condition of railroads, canals, &c. (3) Character of state's interest. (4) Financial condition of rail- roads, &c. (5) Extent, capacity and liiisi- ness. (6) Names of all persons failing to report. 1693. Presidents of railroads, &c.. to report to board; report, what to contain; penalty. 1694. Funds of board deposited in banks. 1695. State treasurer to keep account of bonds; board to examine them yearly; clerk to aid treasurer; his compensation. 1696. Du*y of board in making con- tracts. Section 1G97. State to be stockholder in com- panies to the amount ad- vanced. 1698. Tiailroad and other compa- nies may enter on lands to build their works, &c. 1699. Cannot agree, proceedings to assess damages. 1700. Report of commissioners, what to contain. 1701. Dwelling hou.ses, &c.. not to be condemned. 1703. Company may take material from adjacent lands. 1703. Who to assess value. 1704. Proceedings to value. 1705. Justice may administer oaths. 1706. Appeal allowed. 1707. Width of land condemned for railroads. 1708. Widtli of land for plank- roads, canals, &c. 1709. Quantity condemned for sta- tion or depot. 1710. Railroad, &c., crossing other roads, not to obstruct them. 1711. Companj' may turn roads, &(•. 1713. Damages allowed owners on whose lands roads are turned. 1713. New roads made good as for- mer ones. 1714. Incorporated companies to furnish board with maps, &c., of improvemeuls. 646 INTERNAL IMPROVEMENTS. [Chap. 38. Section. 1715. Railroads and other compa- nies to keep account of pro- duce carried, and to repoit to governor. 1716. Commissioners and freehold- ers paid; costs paid by com- pany except in certain cases. 1717. No railroad, plank-road, &c.. to be established but bylaw; penalty and misdemeanor therefor. 1718. Board to appoint state proxies. Section. 1719. Governor authorized to have the affairs of railroads in which (he slate has an inter- est investigated by members of board of internal improve- ments. 1720. Authority to administer oaths, &c. 1721. Sberiff to execute writs issued by board ; penalty for failure or refusal to obey summons or answer questions. Sec. 1688. Board of internal improvements, wlio; corpor- atename. R. C, c. 61, s. 1. 1819, c. 989, s. 3. 1836, c. 22, s. 2. 1874-'5, cc. 83, 202. The president and directors of the board of internal improvements shall consist of the governor of the state, who shall, ex officio, be president thereof, and of two commissioners to be appointed biennially by the gover- nor, with the advice of the senate; any two of whom shall constitute a board for the transaction of business; and in case of vacancies occurring in the board, the same shall be filled by the other members. The governor and said members shall be a corporate body, under the name and style of "the president and directors of the board of internal improvements," and shall have all the rights, powers, and privileges of a corporation which may be nec- essary to enable it to discharge the duties imposed on it and no more. Sec. 1689. Sessions of board, and pay of members and secretary. K. C, c. 61, s. 2. 1819, c. 989, s. 7. 1836, c. 22, s. 4. 1874-'5, cc. 83, 202. The board may hold their sessions whenever and where- ever the governor may direct; may appoint a secretary to record their proceedings, who shall receive three dol- lars for each day the board shall be in session; and the members shall receive, each, three dollars per day, and their traveling expenses, for the time they may be em- ployed in the public service. Sec. 1690. Board may make rules and by-laws. R, C, c. 61, s. 3. 1819, c. 989, s. 9. 1874-'5, cc. 83, 202. The board may make such rules for the regulation of their proceedings, and all nece.'^sary by-laws, rules, and Chap. 38.] INTERNAL IMPROVEMENTS. 647 regulations for the better ordering of the conduct of their officers, agents, and servants, as to them shall seem ex- pedient, not inconsistent with the laws of the state. Sec. 1691. Board to have charge of state's interest in railroads, canals, &c. 1868-'9, c. 270. s. 97. 1774:-'5, c. 83. The board shall have charge of all the state's interest in all railroads, canals and other works of internal im- provement, and also, all public buildings, which are the property of the state. See. 1692. To keep record of all proceedings, and report to the general assembly, (1) condition of buildings; (2) condition of railroads, canals, &c.; (3) character of state's intei-est; (4) financial condition of railroads, &c.; (5) extent, capacity and business; (6) names of all persons failing to report. K. C, c. 61, s. 4. 1819, c. 989, s. 12. 1868-'9, c. 270, s. 98. 1874-'5, cc. 83, 202, s. 3. The board shall keep a fair and true record of all their proceedings, which shall, at all times, be open to the in- spection of the members of -the general assembly and others interested therein. (1) The '-ondition of all pubhc buildings in their charge, repairs which have been made since the last report, the repairs or modifications which they deem necessary, with their estimates for the same, and the expenditure on each during the year past. (2) The condition of aU railroads, canals, or other works of internal improvement, owned or operated ex- clusively by the state, and they shall at the same time sug- gest such improvement, enlargement or extension of such work as they shall deem proper, and such new works of similar nature as shall seem to them to be demanded by the growth of trade or the general prosperity of the state. (3) The amount, condition and character of the state's interest m other roads, canals or other works of internal improvement in which the state has taken stock, to which she has loaned money, or whose bonds she holds as security. (4) The condition of such roads or other corporate bodies, as are referred to in the previous section, in de- tail, giving their entiie financial condition, the amount and market value of the stock, receipts and disburse- ments for the previous year or since the last report. The 648 INTERNAL IMPROVEMENTS. [Chap. 38 amount of real and personal property of such corpora- tions, its estimated value, and such suggestions with re- gard to the state's interest in the same as may to them seem warranted by the status of the corporation. (5) The condition, extent, capacity and business of all other railroads in this state in tabular form, as provided in the succeeding section. To recommend such legisla- tion as they may deem expedient in regard to any or all of the above matters. [6) And also the names of all persons, failing or refus- ing to report, as required by the succeeding section; and this report the governor shall transmit to the general as- sembly with his message. Sec. 1693. President of railroads, &c., to report to board; report, what to contain, penalty. 1868-'9, e. 270, s. 100. 1874-'5, c. 203, s. 2. Every president or other chief officer of every railroad, canal or other public work of internal improvement in which the state owns an interest shall, on or before the first day of October in each year, make or cause to be made to the board of internal improvements a written report of his company for that year, showing {!) Number of shares of stock owned by the state. (2) Number of shares of stock owned otherwise. (3) Face value of each of said shares. (4) Market value of each of said shares. (5) Amount of "bonded" debt and for what purpose contracted. (6) Amount of other debt and how incurred. (7) Has intei'est on bonded debt been punctually paid as agreed; if not, how much is in arrears. (8) Amount of "gross receipts" for past year and from what sources derived. (9) An itemized account of expenditures for past year. (10) Any lease of property of said company, or any part thereof, to whom made, for what consideration, and for what length of time. (11) Suits at law pending against his company concern- ing its bonded debt, or in which title to whole or any pait of said road or canal is concerned. (12) Any sales of stock owned by the state, by whose order made, and disposition of the proceeds. Any pereon failing to report as required by this section shall be guilty of a misdemeanor, and on conviction be- fore any judge of the superior or criminal court of this state, be fined not less than one nor more than five thou- Chap. 38.] INTERNAL IMPROVEMENTS. 649 sand dollars, and imprisoned not less than one nor more than five j^ears at hard labor in the penitentiary; and it shall be the duty of the attorney general to bring suit against all pei-sons so failing to report in the superior court of Wake county on application of board of in- ternal improvements. Sec. 1694. Funds of board deposited in banks. R. C, c. CI, s. 5. 1836, c. 32, s. 5. 1874-'5, c. 83. All the moneys which may be appropriated to the fund for internal improvement, unless otherwise ordered, shall be deposited in the banks of the state, to the credit of the treasurer, subject to the orders of the board, certified by the secretaiy, and countersigned by the president. Sec. 1695. State treasurer to keep account of bonds; board to examine them yearly; clerk to aid treasurer; bis compensation. K. C, c. 61, s. 6. 1819, c. 989, s. 10. 1836, c. 22, s. 4. 1874-'5, c. 83. The treasurer shall keep an account of all disbursements, and shall render an account thereof to the general assem- bly when he makes his biennial report of the ordinary revenue. Once in every year the board shall appoint a committee of their body to examine the accounts of dis- bursements made during the year, and compare the same with the treasurer's books and the certificates authoriz- ing the payment of money. And the treasurer may em- ploy a clerk at three dollars per day for the time he may be engaged in making such accounts: Provided, that his compensation shall not exceed five hundred dol- lars a year. Sec. 1696. Duty of board in making contracts. K. C, c. 61, s. 7. 1825, c. 1296. 1874-'5, c. 83. Whenever the general assembly shall direct any public improvement, the board shall let the same out by con- tract, and take fiom the contractor a bond with sufficient security, payable to the state of North Carohnain double the sum paid or contracted to be paid, with the condition that he will faithfully perform his contract according to the plans or specifications agreed on. Sec. 1697. State to be stockholder in companies to the amount advanced. K. C, c. 61, s. 8. 1819, c. 989, s. 12. 1874-'5, c. 83. Whenever an appropriation shall be made by the state 28 650 INTERNAL IMPROVEMENTS. [Chap. 38. to any work of intei-nal improvement, conducted by a corporation, the state shall be considered, unless other- wise directed, a stockholder in such corporation, and shall have as many shares as may correspond with the amount of money appropriated; and the acceptance of such money shall be deemed to be a consent of the cor- poration to the terms herein expressed. Sec. 1698. Railroad and other companies may enter on lands to build their works, &c. K. C, c. 61, s. 9. 1852, c. 92, s. 1. 1874-'5, c. 83. Every railroad, plank-road, tram-road, turnpike, and canal company, for the purpose of constructing their road or canal, may at any time enter upon the lands through which they may desire to conduct their road or canal, and lay out the same as they may desire; and they may also enter on such contiguous land along the route as may be necessary for depots, ware-houses, engine-sheds, work-shops, water-stations, toll-houses, and other buildings necessary for the accommodation of their officers, servants, and agents, horses, mules, and other cattle, and for the protection of their property; and shall pay to the proprietors of the land, so entered on, such sum as may be agreed on between them. Sec. 1699. If cannot agree, proceedfugs to assess damages. K. C, c. 61, s. lO. 1874-'5, c. 83. If such corporation cannot agree with the owner of the land which is entered on, or is desired by the corporation for the purposes aforesaid, in the price to be paid for the same, then either the company or the owner may pro- ceed to have the same condemned and damages assessed as is provided in the chapter entitled, "Railroad and Tele- graph Companies." Holloway v. R. R. Co., 85—453. Sec. 1700. Keport of their proceedings made and suh- scribed; form of report. K. C, c. 61, s. 17. 1874-'6, c. 83. When the commissioners shall have assessed the dam- ages, they shall forthwith make and subscribe a written report of their i^roceedings, in substance as follows: We commtssioners, appointed by the court to assess the damages that have been and will be sustained by the owner of certain land lying in Hie covinly of which the company propose to condemn for its use, do hereby certify that we met on (or the day to which we were regularly adjourned), and having first been Chap. 38.1 INTEENAL IMPEOVEMENTS. 651 dulT sworn we visited the premises of the ower and after taking into full consirraHou the quality ami quantity of the Innd aforcsa.d, tbe ad,.it,nnal feucin!? lilu'ly to bo occasioned by the works of the company, and all otLer Inconvlnienci likely to result to the owner, we have esi'mate^ a„d do as.sess the damages aforesaid at the sum of Given under our hands, the day of , A. D Sec 1701. Dwelling-lionses, &c., not to be condemned. is. €., c. 61, s. 21. 1853, c. 93, s. 1. 1874-'5, c. 83. No such corporation shall be allowed to have con- demned to its use, without the consent of the owner, his dwellmg-house, yard, kitchen, garden or bui-ial ground. Sec. 1703. Company may take material from adjacent ground. K. C, c. CI, s. 23. 1874-'5, c. 83. For the purpose of constructing its works and necessary appurtenances thereto, or of repairing them after they shall have been made, or of enlargmg or otherwise alter- ino- them, the company may, at any time, enter on any adjacent lands, and cut, dig, and take therefroni any wood, stone, gravel or earth, which may be deemed necessary: Provided, that they shall not, without the consent of the owner, destroy or injure any ornamental or fruit trees. Sec. 1703. Who to assess value. K. C, c. 61, s. 23. l»74-'5, c. 83. If for the value of the damages done to the owner by reason of the acts in the preceding section mentioned, the parties may be unable to agree, the same shall be valued by any three freeholders of the county. Sec. 1704. Proceedings to value. B. C, c. 61, s. 24. 1874-'5, c. 83. Either party, for that purpose, may apply to the clerk of the superior court of the county wherein the damage is done, who shall thereupon appoint said freeholders, and thev, being duly sworn to impartially and truly assess the damage, shall, after hearing such proper evidence as may be laid before them, report the value thereof to the said clerk. And on the return to him of the report he shall render judgment for the damages and costs against the company, and issue execution therefor. Sec. 1705. Justice may administer oaths to fi-eeholders, &c. K. C, c. 61, s. 35. 1874-'5, c. 83. Any justice may administer all proper oaths to the freeholders and witnesses. 652 INTERNAL IMPROVEMENTS. [Chap. 38. Sec. 1706. Appeal aUowed. R. C. c. 61, s. 26. 1874:-'5, c. 83. Either party may appeal from such judgment as in other cases, and under the same rules. Sec. 1707. Width of land condemned for railroads. R. C, c. 61, s. 27. 1874-'5, c. 83. The width of the land condemned for any railroad shall not be less than eighty feet nor more than one hundred, except where the road may run through a town, when it may be of less width; or where there may be deep cuts or high embankments, when it may be of greater width. Sec. 1708. Width of land for plank-roads, canals and turnpikes. R. C, c. 61, s. 28. 1852, c. 92. 1874-'5, c. 83. No greater width of land than sixty feet shall be con- demned for the use of any plank-road, tram-road, canal or turnpike. Sec. 1709. Quantity condemned for station or depot. R. C, c. 61, s. 29. 1874-'5, c. 83. No greater quantity of land tlian two acres, contiguous to any railroad, plank-road, tram-road, turnpike or canal, shall be condemned at one place for a depot or station. Sec. 1710. Railroads, &c., crosssing other roads, not to ohstruct them. R. C, c. 61, s. 30. 1874-'5, c. 83. Whenever, in their construction, the works of any of said corporations shall cross established roads or ways, the corporation shall so construct its works as not to im- pede the passage or transportation of persons or property along the same. Sec. 1711. Company may turn road, &c. R. C, c. 61, s. 31. 1874-'5, c. 83. In order to prevent the frequent crossing of such roads or ways, or in cases where it may be necessary to occupy the same, the corporation may change the roads and ways so as to avoid such crossing and occupation, and to such points as may be deemed expedient. Sec. 1712. Damages allowed owners on whose land roads are turned. R. C, c. 61, s. 32. 1874-'5, c. 83. For any injury done to the lands of persons by taking them under the pieceding section, the value thereof shall be assessed in like manner as is provided for assessing Chap. S8.] INTERNAL IMPEOVEMENTS. 653 damages to real estate as is provided in the chapter en- titled "Kailroad and Telegraph Companies. Sec. 1713. New roads made good as former one, R. C, c. CI, s. 33. 1874-'5, c. 83. Before any part of an established road or way shall be impeded by any of said corporations the new road or waV shall be prepared and made equally good with the portion proposed to be discontinued; and then the same shall be deemed a part of the original road or way, and shall be kept up and repaired as before the change. Sec. 1714. Incorporated companies to furnisli board with maps, &c., of improvements. B. C, c. 61, s. 34. 1850, Resolution. 1853, c. 92, s. 6. 1874-'5, c. 83. Every company, incorporated for the purpose of im- proving the internal condition of the state, by railroad, plank-road, tram-road, turnpike, canal, or other means, shall furnish to the board a correct map or profile of the contemplated improvements, drawn to a uniform hori- zontal scale of four hundred feet to one inch. And all such charts and documents of a like character, as may be furnished to the state, shall be deposited for safe keepmg in said bureau, under charge of the state librarian, or state engineer, in case there be such an officer. Sec. 1715. Kailroad and other companies to keep accoimt of produce carried; to report to governor. K, C, c. 61, s. 35. 1854, Resolution. 1874-'5, c. 83. The president and directors of canal, railroad, plank- road and turnpike companies, whether wholly or partly in this state, are required to keep an account of all the products of this state intended for sale abroad, by them transported out of the state, or to any shipping poi-t therein; and report the same to the governor at each session of the general assembly. Sec 1716. Commissioners and freeholders paid; costs paid by company, except in certain cases. R. C, c. 61, s 36. 1853, c. 93, ss. 3, 5. 1874-'5, c. 83. Each commissioner and freeholder attending for the purpose of assessing damages to the owner of land for purposes of repairs shall be entitled to one dollar a day while engaged in the business; and the same, with ail other costs of the case, shall be paid by the corporation, unless when the petition of the owner shall be dismissed, when he shall pay the costs; or unless m case of excep- 654 INTEENAL IMPEOVEMENTS. [Chap. 38. tion taken to the report, or of appeal, when the court may adjudge by whom, and in what proportion, the costs shall be paid. Sec. 1717. No railroad, plank-road, &c., to be estab- lished, bnt by law; penalty and misdemeanor therefor. R. C, c. 61, s. 37. 1874:-'5, c. 83. If any person or corporation, not being expressly authorized thereto, shall make or establish any canal, turnpike, tram-road, railroad or plank-road, with the in- tent that the same shall be used to transport passengers other than such persons, or the members of such corpo- ration; or to transport any productions, fabrics or manu- factures other than their own, the person or corporation so offending, and using the same for any such purpose, shall forfeit and pay fifty dollars for every person and article of produce so transported; and shall, moreover, be guilty of a misdemeanor, they and all persons aiding therein, and shall be indicted therefor in the superior or criminal court. Sec. 1718. Board to appoint state proxies. R. C, c. 61, s. 38. 1874-'5, c. 83. The president and directors of the board of internal improvements shall appoint, on behalf of the state, all such officers or agents, as, by any act incorporating a company for the purpose of internal improvement, are allowed to represent the stock or other interests which the state may have in such company; and such person or persons shall cast the vote to which the state may be entitled in all the meetings of the stockliolders of such company. Sec. 1719. Governor authorized to have affairs of rail- roads in which the state has an interest investigated by member of board of internal improvements. 1870, c. 281, s. 1. The governor is authorized and empowered, whenever he may think the public service requires it, to have the affairs of any railroad in which the state has an interest investigated by a member of the board of internal im- provements, and to take such action concerning any matter leported upon as the said board may deem "to the interest of the state. Chap. 39.] JURORS. 655 1879, c. Sec. 1720. Authority to administer oaths, &c. 281, s. 2. The member of the board appointed for the investiga- tion mentioned in the preceding section, shall have power to administer oaths, send for persons and papers, and all powers granted to a committee of investigation appointed by the general assembly. Sec. 1721. Sheriff to execute writs issued by board; pen- alty for failure or refusal to obey summons or answer questions. 1879, c. 281. s. 3. Sheriffs shall execute writs of such member of the board of internal improvements as they would for a judi- cial officer of the state, and shall be allowed the same compensation therefor. Any person failing or refusing to obey any summons of, or to answer questions when required so to do, by such member of the said board, shall be guilty of a misdemeanor. CHAPTER THIRTY-NINE. JUEOES. Section. 1723. Jui-ors shall be selected. 1723. List of names to be made out. 1724. Commissioners to insert names in jury list. 1725. Commissioners to examine ju- ry list, and may examine any person on oath. 1726. Names to be put in box. 1727. How jury ehall be drawn. 1728. Jurors who have suits pend- ing. 1729. Uase of death or removal from the county. 1730. How drawing of jury to con- tinue. 1731. In case of a special term. 1733. When commissioners fail to draw a jury. 1733. Jurors to be summoned, and to attend until discharged by court; tales jurors, how sum- moned and qualifications. Section. 1734. Jurors not attending fined twenty dollars; to have until next term to make excuse; tales jurors fined two dollars. 1735. Exempt from service of pro- cess. 1736. Jury in charge of an oflicer to be furnished with accommo- dation as court may order. 1737. Pay of tales jurors in capital cases. 1738. In capital cases, judge may issue a special venire. 1739. Special venire, how drawn and summoned. 1740. Penalty on sheriff not execut- ing writ, and on jurors not attending. 1741. Exceptions to jurors, when to be taken. 1742. Foreman of grand jury to ad- minister oaths. 656 JUEORS. [Chap. 39. Sec. 1722. Jurors shall be selected. 1868, c. 9, s. 1. The commissioners for the several counties at their regular meeting on the first Monday of September in each year shall cause their clerks to lay before them the tax returns of the preceding year for their county, from which they shall proceed to select the names of such persons only as have paid tax for the preceding year and are of good moral character and of sufficient intelli- gence. Lee V. Lee, 71—139; State v. Haywood, 73 — 437; State v. Griffice, 74— 816; State V. Wincroft, 76—38; State v. Healon, 77— 50o; State v. Boone, 80—461; State v. Martin, 83—673; State v. Cooper, 83—671; State v. Edens, 85—553; State v. Watson, 86—634 Sec. 1723. List of names to be made out. 1868, c. 9, s. 2. A list of the names thus selected shall be made out by the clerk of the board of commissioners, and shall consti- tute the jury list: Provided, that no practicing physician, regular minister of the gospel, keepers of public grist mills, or regularly licensed pilots, members of fire com- panies and of the state guard, shall be required to serve as jurors. Sec. 1724. Commissioners to insert names in jury lists. 1868, c. 9, s. 3. If the hst so made out does not contain the names of all the inhabitants who are qualified as provided to serve as jurors, the commissioners shall insert the names of such inhabitants in the jury Hst. Sec. 1725. Commissioners to examine jury, list, and may examine any person on oath. 1868, c. 9, s. 4. At each regular meeting on the first Monday in Sep- tember, in each year, the commissionei-s shall carefully examine the jury lists as already made out, compare the same with the tax returns, and diligently inquire whether any persons qualified to be jurors as provided are omitted, and whether any persons not qualified to be jurors, as therein provided, have been inserted, and if any have been inserted not possessing the requisite qualifications, they shall strike such names from the jury lists, and in order to obtain fuU information on the subject the com- missioners may examine on oath any person they think proper. Sec. 1726. Names to be put in box. 1868, c. 9, s. 5. The commissioners shall cause the names on their jury Chap. 39.] JURORS. 657 list to be written on small scrolls of paper of equal size and put into a box procured for that purpose, which must have two divisions marked Nos. 1 and 2, and two locks, the key of one to be kept by the sheriff of the county, the other by the chairman of the board of commissioners, and the box by the clerk of the board. State V. Davis. 2 Ired., 153; State v. Heaton, 77—505. Sec. 1727. How jury shall be dravsTi. 1868, c. 9, s. 6. 1868-'9, c. 175. At least twenty days before the regular fall and spring term of the superior court in each year, the commission- ers shall cause to be drawn from the jury box out of the partition marked No. 1 by a child not more than ten years of age, thirty-six scrolls, and the persons whose names are inscribed on said scrolls shall serve as jurors at the fall and spring terms of the superior court to be held for the county respectively ensuing such drawing, and the scrolls so drawn to make the jury shall be put into the partition marked No. 2. The said commissioners shall at the same time and in the same manner draw the names of eighteen persons who shall be summoned to ap- pear and serve during the second week of the term of said court, unless the judge thereof shall sooner discharge all jurors from further service; and the trial jm-y which has served during the first week, shall be discharged by the judge at the close of said week, unless the said jury shall be then actually engaged in the trial of a case, and then they shall not be discharged until the trial is deter- mined. State V. Haywood, 73—437; State v. Grifflce, 74^316; State v. Heaton, 77—505; Slate v. Cooper, 83—071. Sec. 1728. Jurors having suits pending. 1868, c. 9, s. 7. If any of the jurors drawn have a suit pending and at issue in the superior court, the scrolls with their names must be returned into partition No. 1 of the jury box. Slate V. Liles, 77—496; State v. Smith, 80—410; State v. Edens, 85-532; State V. Watson, 86—034. Sec. 1729. Case of death or removal from the county. 1868, c. 9, s. 8. If any of the persons drawn to serve as jurors be dead or removed out of the county, the scrolls with the names of such persons must be destroyed, and in such cases other persons shall be drawn in their stead. 658 JUEORS. [Chap. 39. Sec. 1730. How drawing of jurj' to continue. 1868, c. 9, s. 9. The drawing out of paitition marked No. 1 and putting the scrolls drawn into partition No. 2, shall continue until all the scrolls in partition No. 1 are di-awn out, when all the scrolls shall be retujued into partition No. 1 and drawn out again as herein directed. State V. Martin, 82—672. Sec. 1731. In case of a special term. 1868, c. 9, s. 10. Whenever a special term of the superior court is ordered for the county, the commissionei-s, fifteen days before the holding of such special term, shall draw eighteen jurors to attend said court as herein provided for drawing jurors of the regular terms thereof. Sec. 1732. When commissioners fail to draw a jury. 1868, c. 9, s. 11. If the commissioners for any cause fail to draw a jury for any term of the superior court, regular or special, the sheriff of the county and the clerk of the commission- ers in the presence of, and assisted by two justices of the peace of the county, shall draw such jury in the manner above prescribed ; and if a special term shall continue for more than tAvo weeks, then for the weeks exceeding two, a jury or juries may be drawn as in this section pro- vided. Sec. 1733. Jurors to toe summoned, and to attend until discharged by court; tales jurors, bow summoned, and qualifications. R. C, c. 31, s. 29. 1779, c. 156, ss. 6, 9. 1806, c. 694, s. 1. 1830, c, 42. 1868, c. 9, s. 12. 1879, c. 200. 1881, c. 226. The clerk of the board of county commissioners shall, within five days from the drawing, deliver the list of the jurors drawn for the superior court to the sheriff of the county, who shall summon the persons therein named to attend as jurors at such court, which summons sliall be served, personally, or by leaving a copy thereof at the house of the juror, at least five days before the sitting of the court to which he may be summoned; and jurors shall appear and give their attendance until duly dis- charged; and, that there may not be a defect of jurors, the sheriff shall by order of court summon, from day to day, of the bystanders, other jurors, being freeholders, within the county where the court is held, to serve on the petit jury, and on any day the court may discharge Chap. 39.] JURORS. 659 those who have served the preceding day: Provided, that it shall be a disqualification and ground of challenge to any tales juror that such juror has acted ni the same court as grand, petit or tales juror within two years next preceding such terms of the court. Lee V Lee 71-139; State v. Ragland, 73-12; State v. Wincroft, 76- 08- State V WiUard, 79—660; State v. Thorne, 81-555; State v. Outer- bridge, 82-617; State v. Howard, 82-623; State v. Cooper, 83-671. Sec. 1734. Jurors not attending fined twenty dollars; to Have until next term to make excuse; tales jurors tinea two dollars. B. C c. 31, s. 30. 1779, c. 157, ss. 4, 9. 1783, c. 189, ss. 2, 4. 1804, c. 664. Every person on the original ve7iire summoned to ap- pear as a juror, who shall fail to give his attendance un- til duly discharged, shaU forfeit and pay for the useo. the county the sum of twenty dollars, to be imposed by the court- Provided, that each delinquent juryman shall have until the next succeeding term to make his excuse for his non attendance, and, if he shall render an excuse deemed sufficient by the court, he shall be discharged with- out costs. And every person summoned of the bystand- ers who shall not appear and serve during the day as a iui^r, shall be fined in the sum of two dollars, unless he can show sufficient cause to the court; and the clerk shall forthwith issue an execution against the estate ot tlie de- linquent tales juror for such amercement and costs. State V. Joues, 67 — 285. Sec. 17.35. Exempt from service of process. K. C, c. 31, s. 31. 17 79, c. 157, s. lO. No sheriff or other officer shall arrest under civil pro- cess any juror during his attendance on or going to and returning from any court of record. All such service shall be void, and tiie defendant on motion shall be dis- charged. Sec. 1730. Jury in charge of officer to be furnished with accommodation as court may order. 1876-'7, c. 173. When any jury, impaneled to try any cause, shall fail to agree upon a verdict, and shall be put in charge of an officer of the court, the said officer shall furnish said jurors with such accommodation as the court may order, and the same shall be paid for by the party cast or by the county, under the order and in the discretion of the judge of said court. Young V. Com'rs. 76 — 316. 660 JURORS. [Chap. 39. Sec 1737. Pay of tales jurors in capital cases. 1866-'7, c. 05. In all indictments for capital felonies, the tales jurors who may be summoned to try and who do try such ac- tions shall receive the same pay as the regular panel of jurors receive for their services. Sec. 1738. In capital cases judge may issue a special ve- nire. K. C, c. 35, s. 30. 1830, c. 27, s. 1. Whenever a judge of the superior court shaU deem it necessary to a fair and impartial trial of any person charged \vith a capital offence, he may issue to the sher- iff of the county in which the trial may be, a special writ of venire facias, commanding him to summon such num- ber of the freeholders of said county as the judge may deem sufficient (such number being designated in the writ), to appear on some specified dav of the term as juroi-s of said court; and the sheriff shall forthwith exe- cute the writ and return it to the clerk of the court on the day when the same shall be returnable, with the names of the jurors summoned. State V. Perry, Busb., 330; Slate v. Murph,"NVinst., 129; State v. Bullock, 63—570. Sec. 1739. Special venire, how drawn and summoned. Whenever a judge shall deem a special venire neces- sary, he may at his discretion, issue an order to the clerk of the board' of commissioners for the county, command- ing him to bring into open court forthwith the jury boxes of the county, and he shall cause the number of scrolls as designated by him to be drawn from box No. 1, by a child under ten years of age. And the names so drawn (being freeholders i shall constitute the special venire, and the clerk of the superior court shall insert their names in the writ of venire, and deliver the same to the sheiiff of the county, and the persons named in the writ and no others shall be summoned by the said sheriff. If the special venire is exhausted "before the jury is chosen, the judge in his disci-etion may order another special venire to be drawn and summoned in like manner as the fii-st, until the jury has been chosen. The scrolls, con- taining the names of the persons drawn as jurors from box No. 1 shall, after the jury is chosen, be placed in box No. 2; and if box No. 1 is exhausted before the jury is chosen, the drawing shall be completed from box No. 2, after the same shall have been well shaken. Chap. 40.] LANDLORD AND TENANT. 661 Sec. 1740. Penalty on sheriff not executing writ, and on jurors not attending. K. C, c. 35, s. 31. 1830, c. 27, s. 2. If any sheriff shall fail duly to execute and return such writ ol venire facias, he shall be fined by the court not exceeding one hundred dollars; and all juroi's so sum- moned shall attend until discharged by the court, under the same rules and penalties as are presciibed for other jurors. Sec. 1741. Exceptions to jurors, wlien to be taken. All exceptions to grand jurors for and on account of their disqualifications shall be taken before the jury is sworn and impaneled to try the issue, by motion to quash the indictment, and if not so taken the same shall be deemed to have been waived. Passim, State v. Boon, 80-^61 ; State v. Cooper, 83—671 ; State v. Wat- son, 86—634. Sec. 1742. Foreman of giand jury to administer oaths. 1879, c. 12. The foreman of every grand jury duly sworn and im- paneled in any of the courts shall have power to admin- ister oaths and affirmations to persons to be examined before it as witnesses: Provided, that the said foreman shall not administer such oath or affirmation to any per- sons except those whose names are endorsed on the bill of indictment by the officer prosecuting in behalf of the state, or by direction of the court : Provided further, that the foreman of the grand jury shall mark on the bill the names of the witnesses sworn and examined before the jury. State V. Allen, 83—680; State t. Hines, 84—810. CHAPTER FORTr. LANDLOED AND TENANT. Section. 1748. When lease shall be in writing. 1744. Lessors not partners with les- sees unless they so con- tract. Section. 1745. Formal demand of rent not necessary to create a forfeiture when there is a proviso for re- entry. 662 LANDLORD AND TENANT. [Chap. 40 Section. 1746. Right to recover for use and occupation, when. 1747. Rents apportioned when the estate of the lessor terminates. 1748. When person entitled to rents, &c., liniited in succession dies, to whom payment made. 1749. Where lease of farming land determines during a current year, tenant to hold to end of year in lieu of emblements. 1750. W^hat length of notice re- quired to terminate a tenancy. 1751. Tenant not liable for damages for accidental tire. 1753. Agreement to repair, how con- strued. 1753. In case of accidental damage, lessee may surrender his es- tate. 1754. Possession of crops deemed vested in lessors; preference of lessor's lien. 1755. Rights of lessee. 1756. How to proceed in case of any controversy between the par- ties; undertaking to be given by lessee. 1757. Lessee failing to give said un- dertaking, possession of the property passes to lessor upon liis giving an undertaking, 1758. Provision in case neither party gives the undertaking; unlaw- ful seizure by landlord misde- meanor. ' 1759. Removal of crop by lessee without notice, a misde- meanor. 1760. Misdemeanor for tenant or les- see to surrender possession to other person than landlord. 1761. Unlawful for tenant to injure house, fruit trees, &c., of land- lord. Section. 1763. Chapter to apply to lease of turpentine trees. 1763. Lessors for miuing and for getting timber entitled to the remedies given in this chapter. 1764. On conveyance of the rever- sion, &c., no attornment nec- essary. 1765. Riglits of grantees of rever- sions and of tenants of par- ticular estates. 1766. Tenants who hold over may be dispossessed, when. 1767. When summons shall issue; oath of lessor. 1768. Officer to serve summons, how. 1769. What justice to do if defend- ant fails to appear or admit al- legation. 1770. What to be done if both par- ties require a jury trial. 1771. Powers of justices the same as on other trials. 1772. Eitlier party may appeal; the undertaking; increase of on appeal. 1773. What done if defendant ten- ders rent in arrear and costs. 1774. If proceedings quashed, judg- ment of restitution. 1775. Damages may be recovered for occupation to lime of trial. 1776. Defendant may recover dam- ages for his removal from pos- session. 1777. Remedy given to the lessor when the tenant deserts prem- ises. 1778. Costs to successful party. 1779. What forms sufficient. 1780. Forms of proceeding before a justice of the peace, for the summary ejectment of a ten ant holding over. Sec. 1743. When lease shall be in writing. 1868-'9, c. 166, s. 2. All leases and contracts for leasing land for the purpose Chap. 40.] LANDLORD AND TENANT. 6G3 of digging foi' gold or otlier minerals, or for mining gen- erally, of whatever duration; and all other leases and contiacts for leasing lands, exceeding in duration three years from the making thereof, shall be void unless put in writing and signed by the party to be charged there- with, or by some other person by him thereto lawfully authorized. Wade V. New Beine, 77—460; Krider v. Ramsay, 79—354. Sec. 1744. Liessors not partners with lessees unless tLey so contract. lS68-'9, c. 156, s. 3. No lessor of property, merely by reason that he is to receive as rent or compensation for its use a share of the proceeds or net profits of the business in which it is em- ployed, or any other uncertain consideration, shall be lield a partner of the lessee. ReynoUls v. Pool, 84—37; Curtis v. Cash, 84r-41. Sec. 1745. Formal demand of rent not necessary to create a forfcitiue, when there is a proviso for re-entry. 18C8-'9, c. 156, s. 4. Whenever any half year's rent or more shall be in ar- rear from any tenant to his landlord, and the landlord has a subsisting light to reenter for the non-payment of such i-ent, he may bring an action for the recovery of the de- mised premises, and the service of the summons therein shall be deemed equivalent to a demand of the ]ent in arrear and a re-entr)^ on the demised premises, and if, on the trial of the cause, it shall appear that the landlord had a right to re-enter, the plaintiff shall have judgnient to recover the demised premises and his costs. Sec. 1 746. Kight to recover for use and occupation, when. 1868-'9, c. 156. s. 5. Whenever any person shall occupy land of another by the permission of such other, without any express agreement for rent, or upon a parol lease which is void, the landlord may recover a reasonable compensation for such oaaipation, and if by such parol lease a certain rent Avas reserved, such reservation may be received as evi- dence of the value of the occupation. Sec. 1747. Rents apportioned, when the estate of the lessor terminates, ii G. II., c. 19, s. 15. 1868-'9, c. 156, s. 6. If a lease of land, in which rent is reserved, payable at the end of the year or other certain period of time, be 664: LANDLORD AND TENANT. [Chap. 40. determined by the death of any person during one of the periods in which the rent was groAviug due, the lessor or his personal representative may recover a part of the rent which becomes due after the death, proportionate to the part of the period elapsed before the death, subject to all just allowances; and if any security shall have been given for such rent it shall be apportioned in like man- ner. Sec. 1 748. When person entitled to rents, &c., limited in succession dies, to wliom payment made. 1808-'i>, c. 156, s. 7. In all cases where rents, rent charges, annuities, pen- sions, dividends, or any other payments of any descrip- tion, are made payable at fixed periods to successive owners under any instrument, or by any will, and whei'e the right of any owner to receive payment is terminable by a death or other uncertain event, and where such right shall so terminate during a period in which a pay- ment is growing due, the payment becoming due next after such terminating event, shall be apportioned among the successive owners according to the parts of such periods elapsing before and after the terminating event. Sec. 1749. "Where lease of farming land determines dur- ing- a current year, tenant to hold to end of year in lieu of emblements. 1868-'9, c. 166, s. 8. Where any lease for years of any land let for farming on which a rent is reserved shall determine during a cur- rent year of the tenancy, by the happening of any un- certain event determining the estate of the lessor, the tenant in heu of emblements shall continue his occupa- tion to the end of such current year, and shall then give up such possession to the succeeding owner of the land, and shall pay to such succeeding owner a part of the rent accrued since the last payment became due, proportion- ate to the part of the period of payment elapsing after the termination of the estate of the lessor, to the giving up such possession, and the tenant in such case shall be entitled to a reasonable compensation for the tillage and seed of any crop not gathered at the expiration of such current year from the person succeeding to the posses- sion. Sec. 1750. What length of notice required to terminate a tenancy. 1868-'9, c. 156, s. 9. A tenancy from year to year may be terminated by a Chap. 40.] LANDLORD AND TENANT. 665 notice to quit given three months or more before the end of the current year of the tenancy; a tenancy from month to month by a like notice of fourteen days; a tenancy from week to week, of two days. Vincent v. Corbin, 85—108; McAdou v. Callum, 86—419. Sec. 1751. Tenant not liable for damage for accidental fire. 1868-'9, c. 156, s. 10. A tenant for life, or years, or for a less term, shall not be liable for damage occurring on the demised premises accidentally, and notwithstanding reasonable dibgence on his part; unless he so contract. Sec. 1752. Agreement to repair, how construed. 1868- '9, c. 156, s. 11. An agreement in a lease to repair a demised house shall not be construed to bind the contracting party to rebuild or repair in case the house shall be destroyed or damaged to more than one half its value, by accidental fire not oc- curring from the want of ordinary diligence on his part. Sec. 1753. In case of accidental damage, lessee may sur- render his estate. 1868-'0, c. 156, s. 12. If a demised house, or other building, be destroyed during the term, or so much damaged that it cannot be made reasonably fit for the purpose for which it was hired, except at an expense exceeding one year's rent ot the premises, and the damage occur without negligence on the part of the lessee or his agents or servants, and there be in the lease no agreement respecting repaii-s, or providing for such a case, and the use of the house dam- aged was the main inducement to the hiring, the lessee may surrender his estate in the demised premises by a writing to that effect delivered or tendered to the land- lord within ten days from the damage, and by paying or tendering at the same time all rent in arrear, and a part of the rent growing due at the time of the damage, pro- portionate to the time between the last period of pay- ment and the occurrence of the damage, and the lessee shall be thenceforth discharged from all rent accruing afterwards; but not from any other agreement in the lease. This section shall not apply if a contrary intention appear from the lease. Harrison v. Ricks, 71 — 7. 666 LANDLORD AND TENANT. [Chap. 40. Sec. 1754. I'ossession of crops deemed vested in lessors; preference ot lessor's liea. 1870-'7, c. 283, s. 1. When lands shall be rented or leased by agreement, written or oral, for agricultural purposes, or shall be cul- tivated by a cropper, unless otherwise agreed between the parties to the lease or agreement, any and all crofis raised on said lands shall be deemed and held to be vested in pos- session of the lessor or his assigns at all times, until the rents for said lands shall be paid and until all the stii)u- lations contained in the lease or agreement shall be per- formed, or damages in lieu thereof, shall be paid to the lessor or his assigns, and until said party or his assigns shall be paid for all advancements made and expenses in- curred in making and saving said crops. This lien shall be preferred to all other liens, and the lessor or his as- signs shall be entitled against the lessee or cropper or the assigns of either who shall remove the crop or any part thereof from the lands without the consent of the lessor or his assigns, or against any other person who may get possession of said crop or any part thereof, to the reme- dies given in an action upon a claim for the delivery of personal pioperty. State V. Burwell, 63— 6G1; McCombs v. Wallace, 66—587; Alsbrook ▼. Shields, 67 — 333; Harrison v. Hicks, 71 — 7; Vartier v. Spencer, 72 — 281; Huggins V. Wood, 72—256; Haywood v. Rogers, 73—320; Neal v. Bellamy, 73—384; State v. Surlcs, 74—330; Thrcndgill v. McLendon, 76—24; Foster v. Peury, 70—131; Avera v. McNeill, 77—50; State v. Long, 78—571; Durham V. Speck, 82—87; Slaughter v. Winfrey, 85—159; State v. Copeland, 86—691. Sec. 1755. Kights of lessee. 1870-'7, c. 261. 1876-'7, c. 283, s. 2. Whenever tlie lessor or his assigns shall get the actual possession of the crop or any part thereof otherwise than by tlie mode prescribed in the preceding section, and said lessor or his assigns shall refuse or neglect, upon a notice, written or oral, of five days, given by the lessee or crop- per or the assigns of either, to make a fair division of said crop, or to pay over to such lessee or cropper or the assigns of either, such part thereof as he may be entitletl to under tiio lease or agreement, then and in that case the lessee or cropper or the assigns of either shall be en- titled against the lessor or his assigns to the remedies given in an action upon a claim for the delivery of per- sonal property to recover such part of the crop as he, in law and according to the lease or agreement, may be en- titled to. The amount oi- quantity of such crop claimed Chap. 40.] LANDLORD AND TENANT. 667 by said lessee or cropper or the assigns of either, together with a statement of the grounds upon which it is claimed, shall be fully set forth in an affidavit at the beginning of the action. State V. Sears, 71 — 295; Farmer v. Pickens, 83 — 549; Wilson v. Respass, 86—113; Stale v. Copeland, 86—691; Palston v. Kose, 87— 279; State v. Webb, 87—558. Sec. 1750. How to proceed, iu case of any controversy be- tween the parties ; wndertakiug to be given by lessee. 1876-'7, c. 283, s. S. Where any controversy shall arise between the parties, and neither party avails himself of the provisions of this ciiapter, it shall be competent for either party to proceed at once to have the matter determined in the court of a justice of the peace, if the amount claimed be two hun- dred dollars or less, and in the superior court of the county where the property is situate if the amount so claimed shall be more than two hundred dollars. But in case there shall be a continuance or an appeal from the jus- tice's decision to the supeiior court, the lessee or cropper, or the assigns of either, shall be allowed to retain posses- sion of said property upon his giving an undertaking to the lessor or his assigns, or the adverse party, in a sum double the amount of the claim, if such claim does not amount to more than the value of such property, other- wise to double the value of such property, with good and sufficient surety, to be approved by the justice of the peace or the clerk of the superior court, conditioned for the faithful payment to the adverse party of such dam- ages as he shall recover in said action. Wilson T. Respass. 86—112; State v. Copeland, 80—691. Sec. 1757. Lessee failing to give said undertaking, posses- sion of the property passes to lessor upon liis giving an undertaking. 1876-'7, c. 283, s. 4. In case the lessee or cropper, or the assigns of either, ^hall, at the time of the appeal or continuance mentioned in the preceding section, fail to give the undertaking therein required, then the constable or other lawful of- ficer shall deliver the property into the actual possession of the lessor or his assigns, upon the lessor or his assigns giving to the adverse party an undertaking in double the amount of said property, to be justified as required in the preceding section, conditioned for the forthcoming of such property, or the value thereof, in case judgment shall be pronounced against him. C6S LANDLORD AND TENANT. [Chap. 40. Sec. 1758. Provision in case neither party {jivcs the nndcrtakiug. 1876-'7, c. 283, s. 5. If neither party gives the undertaking describerl in the two preceding sections, it sliall be the duty of the justice of the peace or the clerk of the superior court, to issue an order to the constable or sheriiif. or other lawful offi- cer, directing him to take into his possession all of said property, or so much thereof as shall be necessary to sat- isfy the claimant's demand and costs, and to sell the same under the rules and regulations prescribed bv law for the sale of personal property under execution, and to hold the proceeds thereof subject to the decision of the court upon the issue or issues pending between the par- ties. Slaughter v. Winfrey, 85-159. Sec. 1759. Kemoval of crop by lessee without notice, a misdemeanor; unlawful seizure by landlord, a misde- meanor. 1876-'7, c. 283, s. C. 1883, c. 83. Any lessee or cropper, or the assigns of either, or any other person, who shall remove said crop, or any part thereof, from such land without the consent of the lessor or his assigns, and without giving him or his agent five days' notice of such intended removal, and before satisfy- ing all the liens held by the lessor or his assigns, on said crop, shall be guilty of a misdemeanor, and if any land- lord shall unlawfully, wilfully, knowingly and without process of law, and unjustly seize the crop of his tenant when there is nothing due him, he shaU be guilty of a misdemeanor. State V. Sears, 71—295; Varner v. Spencer, 72—381; State v. Long, 7S— 571; State v. Pender, 83—651; State v. Webb, 87—558. Sec. 1760. Misdemeanor for tenant or lessee to surrender possession to other person than landlord. 1883, c. 138. Any tenant or lessee of lands who shall wilfully, wrong- fully and with intent to defraud the landlord or lessor, give up the possession of the rented or leased premises to any person other than his landlord or lessor, shall be guilty of a misdemeanor, and fined or imprisoned, or both, at the discretion of the court. Sec. 17G1. Unlawful for tenant to injure house, fruit trees, &c., of landlord. 1883, c. 224. Any tenant who shall, during his term or after its ex- piration, wilfully and unlawfully demolish, destroy, de- Chap. 40.] LANDLORD AND TENANT. 669 face, injure or damage any tenement house, uninhabited house or other outhouse, belonging to his landlord or up- on his premises by removing parts thereof or by burning, or in any other manner, or shall unlawfully and wil- fully burn, destroy, pull down, injure or remove any fence, wall or other inclosure or any part thereof, built or standing upon the premises of such landlord, or shall wilfully and unlawfully cut down or destroy any fruit, shade or ornamental tree belonging to said landlord, shall be guilty of a misdemeanor, and fined or imprisoned or both, at the discretion of the court. Sec. 17G2. This chapter to apply to lease of turpentine trees. 1876-'7, c. 383, s. 7. This chapter shall apply to all leases or contracts to lease turpentine trees, and the parties thei-eto shall be fully subject to the provisions and penalities of this chapter. Sec. 17«3. Tjcssors for mining and for getting tiniher eutitlert to the remedies given in this chapter. 18G8- 'J>, c. 15G, s. 16. If in a lease of land for mining, or of timbered land for the i^urpose of manufacturing the timber into goods, rent shall be reserved, and if it shall be agreed in the lease that the minerals, timb3r or goods, or any portion thereof , shall not bo removed until the payment of the rent, in such case the lessor shall have the rights and be entitled to the remedy given by this chapter. Sec. 1 7G4. On conveyance of the reversion, &c., no attorn- meiit necessary. 4 & 5 Ann., c. 16, s. 9. 18G8-'9, c. 1,56, s. 17. Every conveyance of any rent, reversion, or remainder in lands, tenements or hereditaments, otherwise sufficient, shall be deemed complete without attornment by the holders of particular estates in said lands: Provided, no holder of a particular estate shall be prejudiced by any act done by him as holding under his grantor, without notice of such conveyance. Sec. 1765. Rights of grantees of reversions, and of ten- ants of particular estates. 32 H. VIII., c. 34, 1 8G8-'9, c. 1 r>6, s. 1 8. The grantee in every conveyance of reversion in lands, tenements or hereditaments, shall have the hke advan- 670 LANDLOED AND TENANT. [Chap. 40. tagesand remedies by action or entry, against the holders of particular estates in such real property, and their assigns, for non-payment of rent, and for the nonper- formance of other conditions and agreements contained in the mstruments by the tenants of sucli particular estates, as the grantor or lessor or his heirs might have; I and the holders of such particular estates, and their as- signs, shall have the like advantages and remedies against the grantee of the reversion, or any part thereof, for any conditions and agreements contained in such instruments, as they might have had against the grantor or his less(jr or his heirs. Sec. 1766. Tenants who hold over may be dispossessed, when. 1868-'9, c. 156, s. 19. Any tenant or lessee of any house or land, and the assigns under the tenant or legal representatives of such tenant or lessee, who shall hold over and continue in the possession of the demised premises, or any part thereof, without the permission of the landlord, and after demand made for its surrender, may be removed from such pre- mises in the manner hereinafter prescribed m either of the following cases: (1) Whenever a tenant in possession of real estate holds over after his term has expired; (2) When the tenant or lessee, or other person under him, has done or omitted any act by which, according to the stipulations of the lease, his estate has ceased. Creedle v. Gibbs, 65—193; Calloway v. Ilamby, 65—631; Turner v, Lowe, 66—413; McCombs v. Wallace, 66— i8l; McMillan v. Love, 73—18; Abbott V. Cromartie, 7:i— 393; Greer v. Wilbar, 73—593; Poisythe v. Bul- lock, 74—135; Garrett v. Com'rs of Edenton, 74—388; Medlin v. Steele, 75 —154; Riley v. Jordan, 75—180; Heyer v. Beatty, 76—38; Greeu v. N. C. Railroad Co., 77—95; Foster v. Penry, 77—160; Sanders v. Ellington, 77— 255; Wilson v. James, 79—349; Meroney v. Wriglit, 81—390; Johnson v. Hauser, 83—375; Davis v. Davis, 83—71; Scott v. El kins, 83—424; Parker V. Allen, 84—466; Hughes v. Mason, 84-^73; Cotlingham v. McKay, 86— 241; McAdtio v. Galium, 86—419; Halin v. Latham, 87—173. Sec. 1 767. AVlieu summons shall issue; oath of lessor 1868-'9, o. 1.-56, s. 20. 1869-'70, c. 212. When the le.s.sor or his assigns, or his or their agent or attorney, shall make oath in writing, before any justice of the peace of the county in Avhich the demised premises are situated, stating such facts as constitute one of the cases above described, and describing the premises, and Chap. 40.] LANDLOED AND TENANT. 671 asking to be put in possession thereof, the justice shall issue a suminou5 reciting the substance of the oath, and i-equiring the defendant to appear before him or some other justice of the county, at a certain place and time, (not to exceed five days from the issuing of the summons, without the consent of the plaintiff or his agent or attor- ney) to answer the complaint. The plaintiff or his agent or attorney may in his oath claim rent in arrear, and damage for the occupation of the premises since the ces- sation of the estate of the lessee: Provided, the sum claimed shall not exceed two hundred dollars; but if he shall omit to make such claim, he shall not be thereby pi'ejudiced in any other action for their recovery. Medlinv. Steele, 75—154; Ncsbift v. Turrcntine, 83—535; Cottinghain v. McKay, 86—241 ; McAdoo v. Galium, 86—419. Sec. 1 768. Officer to serve summons, how. 1868-'9, c. 156, s. 21. The officer receiving such summons shall immediately serve it by the delivery of a copy to the defendant or by leaving a copy at his usual or last place of residence, with some adult person, if any such be found there; or, if the defendant have no usual place of residence in the county and cannot be found therein, by fixing a copy on some conspicuous part of the premises claimed. Sec. 1769. What justice to do if defendant fail to appear or admit allegation. 1868-'9, c. 156. s. 23. The summons shall be returned according to its tenoi", and if on its return it shall appear to have been duly served, and if the defendant shall fail to appear or shall admit the allegations of the complaint, the justice shall give judgment that the defendant be removed fiom, and the plaintiff be put in, possession of the demised premises; and if any rent or damages for the occupation of the premises after the cessation of the estate of the lessee, not exceeding two hundred dollars, be claimed in the oath of the plaintiff as due and unpaid, the justice shall inquire thereof, and give judgment as he may find the fact to be. Sec. 1770. Wliat to he done if hoth iiarties require a jury trial. 1868-'9, c. 156, s. 23. If the defendant by his answer shall deny any material allegation in the oath of the plaintiff, the justice shall hear the evidence and give judgment as he shall find the facts to be. If either party shall demand a trial by jury, and 672 LANDLORD AND TENANT. [Chap. 40. shall deposit with the justice a sum of money equal to the costs of such jury, the justice shall immediately cause to be summoned twelve lawful jurors, fi-om whom a jvii-y of six shall be obtained and impaneled as is pre- scribed in other cases of trial by jury before a justice, who shall decide upon the issues of fact joined between the parties, and if rent or damages be claimed as afore- said shall assess the same. The justice shall record the verdict and render judgment accordingly; and if the jury shall find that the allegation in the plaintiff's oath, which entitles him to be put in possession, is true, the justice shall give judgment that the defendant be removed from, and the plaintiff put in possession of the demised prem- ises, and also for such rent and damages as shall have been assessed by the jury and for costs; and shall issue his execution to carry the judgment into effect. Smith V. Stewart, 83—406. Sec. 1771. Powers of justices the same as on other trials. 1868-'9, c. 156, s. 34. On trials under this chapter the justice shall have the powers given him in other cases of trials before him, and be subject to like duties. Heyer v. Beatty, 76—28. Sec. 1772. Either party may appeal; the unilertakinfr, in- crease of undertaking- on appeal. 1868-'9, c. 156, s. 25. 1883,0.316. Either party may appeal from the judgment of the jus- tice, as is prescribed m other cases of appeal from the judgment of a justice; but no execution commanding the removal of a defendant from the possession of the de- mised premises, shall- be suspended until the defendant shall have given an undertaking in an amount not less than one year's rent of the premises, with sufficient surety, who shall justify and be approved by the justice, to be void if the defendant shall pay any judgment which in that or any cjther action the plaintiff' may recover for rent, and for damages for the detention of the land. At any term of the superior court of the county in which siich appeal is docketed after the lapse of one year from the date of the filing of the undertakuig above mentioned, tiie tenant, after legal notice to that end has been duly executed on him, may be required to show cause why said undertaking should not be increased to an amount sufficient to cover rents and damages for sucii period as to the court may seem proper, and if such ten- Chap. 40.] LANDLORD AND TENANT. 673 ant shall fail to show proper cause and shall not file such bond foi- rents and damages as the court may direct, or make affidavit that he is unable so to do and show merits, his appeal shall be dismissed and the judgment of the justice of the peace shall be affirmed. Steadman v. Jones, 65—388; Critcher v. Hodges, G8— 33; Heyer v. Beatty, 76—38; Rollins v. Henry, 76—369; Rollins v. Heniy, 77—467; Lane v. Morton, 78 — 7. Sec. 1773. What clone if defendant tenders rent in arrear and costs. 4 Geo. II., c. 28, s. 2. 1868-'9, c. 156, s. 26. If, in any action brought to recover the possession of demised premises upon a forfeiture for the non-payment of rent, the tenant, before judgment given in such ac- tion, shall pay or tender the rent due and the costs of the action, all further proceedings in such action shall cease; orif the plaintiff shall further prosecute his action, and the defendant shall pay into court for the use of the plaintiff a sum equal to that which shall be found to be due, and the costs, to the time of such payment, or to the time of a tender and refusal, if one has occurred, the defendant shall recover from the plaintiff all subsequent costs; the plaintiff shall be allowed to receive the sum paid into court for his use, and the proceedings shall be stayed. Sec. 1774. If proceedings quashed, judgment of restitu- tion. 1868-'9, c. 156, s. 27. If the proceedings before the justice shall be brought before a superior court and quashed, or judgment be given against the plaintiff, the superior or other com't in which final judgment shall be given, shall, if necessary, restore the defendant to the possession, and issue such writs as shall be proper for that purpose. Perry v. Tupper, 70—538; Perry v.Tupper, 71— 385;Meroney v. "Wright, 81—890; Meroney v. Wright, 84:— 336. Sec. 1775. Damages may be recovered for occupation to time of trial. 1868-'9, c. 156, s. 28. On appeal to the superior court, the jury trying the issue joined, shall assess the damages of the plaintiff for the detention of his possession to the time of the trial in that court, and judgment for the rent in arrear and for tlie damages assessed may, on motion, be rendered against the sm-eties to the appeal. Ncsbitt V. Turrentiue, 83—535. 29 674 LANDLORD AND TENANT. [Chap. 40. Sec. 1776. Defendant may recover damages for Lis re- moval from possession. 1868-'9, c. 15G, s. 30. If, by order of the justice, the plaintiff shall be put in possession, and the proceedings shall afterwards be quashed or reversed, the defendant may recover damages of the plaintiff for his removal. Sec. 1777. Remedy given to the lessor, when the tenant deserts premises. 1868-'9, c. 156, s. 32. If any tenant or lessee of lands or tenements, being in arrear for rent, or having agreed to cultivate the demised premises and to pay a part of the crop to be made there- on as rent, or who shall have given to the lessor a lien on such crop as a secuiity for the rent, shall desert the demised premises, and leave them unoccupied and un- cultivated, the lessor shall have the like remedies to be put in possession, as are given to lessors against tenants who hold over. Steadman v. Jones, 65—388. Sec. 1778. Costs to .successful party. 1868-»9, c. 156, s. 29. In cases under this chapter, the successful party shall recover costs. Sec. 1779. "What forms sufficient. 1868-'9, c. 156, s. 33. The following forms, or any substantially similar, shall be sufficient in proceedings for the summai-y eject- ment of tenants holding over, and others, under this chapter. Sec. 1780. Forms of proceeding before a justice of the peace for the summai-y ejectment of a tenant holding over. 186S-'9, c. 156, s. 34. 1869-'70, c. 212. [No. 1.] FORM OF THE OATH OF PLAINTIFF. North Caiiolina County. A. B., Plaintiff, ^ (Kiainst \ Summary proceedings in ejectment. C. V)., Defendant. ) Tlie i.Uunliff (his agent or attorney) maketli oath that the defendant entered into llie possession of a piece of land in said county, (deseiibe llie hmd.) as a lessee of tlicplaintifT, (or as lessee of E. F., who, after the niaUing of the lease, assigned his estate to the plaiiitilf, or oilierwisc, as llie fact may be,) that the term of the defendant expired on the day of Chap. 40.] LANDLORD AND TENANT. 675 18 (or that his estate has ceased hy non-payment of rent, or otherwise, as Uic fact may bo,) that the plaintiff has demanded tlic possession of the premises of the defendant, who refused to surrender it, hut holds over; that the estate of tlie pluinliffs is still subsisting, and the plaintiff asks to be put in posses-ion of the pi-emises. The plaintiff claims dollars for rent of the premises from the day of 18 to tlie day of 18 ; and also, dollars for the occupation of the premises since the day of 18 to tlie date hereof. A. B., Plaintiff. Subscribed and sworn to before me, this day of , 18 J. K., /. P. [No. 2.] FORM OF SUMMONS TO BE ISSUED BY THE JUSTICE. North Carolika, County. A. B., Plaintiff, ) aqainst \ Summary proceedings in ejectment. C. D., Defendant. ) A. B. (his agent or attorney,) having made and subscribed before me the oath, a copy of which is annexed, you are required to appear before me, or some otiier justice of the peace of said county, on the day of , 18. . . ., at , then and there to answer the complaint; otherwise judgrnent will be given that you be removed from the possession of the premises. "Witness mv hand and seal this day of , 18 J. K., J. P.. [SEAL.] ToC. D., defendant. The ju<;licc attaches the oath of the plaintiff to the summons and de- livers ihcm, and a copy of both of them, to the officer, and makes the fol- lowing entry on his docket, or varied according to the facts. [No. 3.] FORM OF ENTRY MADE BY JUSTICE. A. B., Plamtiff, 1 gmnfnary proceedinss in ejectment for (describe tlie C.D.rffidant.[ ^'•— )• Oath of plaintiff (his agent or attorney) filed on the day of , 18 Plaintiff claims dollars for rent, from to , and dolars for occupation from to Summons issued the day of 18 , to , constable {or slicrilT, as tlie case may be). The officer serves the summons and returns it to the justice with the oath of the plaintiff, and with his return indorsed. 676 LANDLORD AND TENANT. [Cila.p. 40. [No. 4.] FORM OF RETURN OF OFFICER. On this day I served the within summons on tlie defendant C D by delivering him a copy tliereof, and of the o:ith of A. B. annexed (or hy leaving a copy thereof and the outh of A. B. at the usual place of resi- dence of the defendant C. D., with an adult found there.) (or tli^said C U uot being found in my county, and having no usual or last place of res- idence therein,) (or no adult person being found at his usual or last place ot residence,) by posting a copy of the summons and of the oath of A B annexed, on a conspicuous part of the premises claimed. ' rrx, J . ,„ N. M., Constable. The day of ,18.... [No. 5.] FORM OF RECORD TO BE ENTERED BY JUSTICE ON HIS DOCKET. A. B., Plaintiff, ) against \- Summary proceedings in ejectment C. D., Defendant. ) It appearing that the summons, with a copy of the oath of the plaintiff (Ins agent or attorney) was duly served on defendant*, and whereas the defendant fails 1o appear (or admits the allegations of the plaintiff) I ad- judge that the defendant be removed from, and the plaintiff put in posses- sion of, the premises described in the oath of the plainiiff. I also adiuch-e that the plaintiff recover of defendant dollars, for rent from the day of ,18 to the day of .'..,18 ^^^ ■ dollars for damages for occupation of the premises' from the ....day of .. 18...., to this day, and dollars for his costs; the day of 18 If the defendant admit p.trt of the allegations of plaintiff, but not all the judgment must be varied accordingly; for example: follow the foren-o- ing to the *, and then proceed : ° [No. 6.] And whereas, the defendant appears and admits the first and second allegations of the plaintiff, and denies the residue; and whereas both panics waived a trial by jury, I heard evidence upon the matters in' issue and find (licre state I lie fiuding on the matters in issue separately). [Supposing the findings arc for the plaintiff, the record would proceed 1 I therefore adjudge that the defendant (and so on from *). [No. 7.] If either party shall demand a jury the record will proceod from* as follows: And whereas, the plaintiff (or defendant, as the cose may 'he) demand a trial of the issues joined by a jury, I caused a jury to be Chap. 40.] LANDLORD AND TENANT. 677 summoned, lo wit: (licrc give the names of the jurors summoned,) from wliom the following jury was duly impaneled, to wit; (here state the names of the six jurors impaneled.) who find (here state I lie verdict of jury; if they find all the issues for the plainlifT, say so; if any particular i.ssues, say so; also state Iho sums assessed by them for rent and for occupation to trial). Therefore, I adjudge, &c., as in form No. 5, from *. If cither party appeals, the justice will enter on Iiis docket as follows, altering the entry according to the facts. [No. 8.] FORM OF RECORD WHEN AN APPEAL IS PRATED. From the foregoing judgment the plamtifE (or defendant, as the case may be) jirayed an appeal to the next superior court of said county, which is allowed. [No. 9.] FORM OP BOND TO BE GIVEN BY DEFENDANT TO SUSPEND EXECUTION. We, the undersigned, and , acknowl- edge ourselves indebted to in the sum of dollars: Witness our hands and seals, this the day of A. D. 18. . . . Whereas on the day of , A. D. 18 before a justice of the peace for county, A. B. recovered a judgment against 0. D. for and for dollars damages for tlie detention of said real estate from the day of T , A. D. 18 to the day of A. D. 18. ... ; and whereas, tlie said ha prayed an appeal to the superior court from said judgment, and also asks that execution on said judgment shall be suspended: now, therefore, if the said shall pay any judgment, which, in this or in any other action, the said may recover for the rent of said premises, and for damages for detention thereof, then this obligation shall be void, otherwise to remain in full force and virtue. ESEAL.] SEAL.] SEAI,.] [No. 10.] FORM OF EXECUTION ON A JUDGMENT FOR THE PLAINTIFF. A. B., Plaintiff, 1 against [- County. C. D., Defendant. \ I'he State of North Carolina, to any lawful officer of said county, Gkeet- ikg: Touarc hereby commanded to remove C. D. from, and put A. B. in, the possession of a certain piece of land (here describe it as in the oath of 678 LANDLORD AND TENANT. [Chap. 40. plaintiff). You shall also make out of the goods and chattels, lands and tenements, of s:iiil defendant dollars, with interest from the .... day of 18 to Ike d.iy of payment, which the pl.iinlift lately recovered of the defendant as rent and damages, and the furtlier sum of dollars as costs, in said action. Return this writ, with a statement of your proceedings thereon, before me. (Slate when and where according to general law respecting justices' executions). Witness, my hand and seal, this . .'. . day of , 18. . . . [seal.] [No. 11.] FORM OF SUPERSEDEAS OF EXECUTION. The State of North Carolina, to any officer having an execution in favor of A. B., plainlilf, v. C. D., defendant, in a summary proceeding in eject- ment, signed by , a justice of the peace. Tlie defendant having given bond to me, as required by Law, on his ap- peal lo tlie superior court of county, in the above case, you will stay further proccfdings upon said execution and immediately return the same to me, with a statement of your action under it. Witness my hand and seal this day of , 18. . . . , /. P. [SEAX.] [No. 12.] FORM OF CERTIFICATE OF JUSTICE ON RETURN OF THE AP- PEAL TO THE SUPERIOR COURT. The annexed are the original oath, summons and other papers, and a copy of the record of the proceedings in the case of a summary proceeding in ejectment, A. B., plaintiff, ®. C. D., defendant. J. P. COSTS IN THE CAUSE. (Here state all the costs, to whom paid or due, and b^' whom). All the papers must be attached. Chap. 41.] LIENS. 6T0 CHAPTER FORTY-ONE. LIENS. Sfxtion. 1781. Lions on buildings. 1782. Liens on crops. 1783. Personal property subject to lien. 1784. Claims, -where filed. 1785. To be brought Ijefore justice of the peace in case of disa- greement. 1786. What rights not affected. 1787. Costs allowed to cither party. 1788. Defendant entitled to set-off. 1789. "When notice of the lien shall be filed; clerk to keep book of liens; clerk's fee. 1790. Proceedings to enforce lien; in what courts and in what time. 1791. Executions to issue as upon other judgments. 1792. Order in which liens are to be paid. 1793. How liens discharged. 1794. No execution issued by justice of the peace against real es- tate. 1795. When remedy by attachment. 1796. Laborer's share of crop not li- able to execution against em- ployer. Section. 1797. Owners of stud horses, &c., to have a lien on colts. 1798. Colt not exempt from execu- tion. 1799. Liens on crops in favor of those making advances. 1800. Warrant to sheriff to seize the crops on aflidavit that the lien is about to be defeated. 1801. Lien given to sub contractors, laborers, and persons furnish- ing material for improvements upon real estate; proviso. 1802. Notice to be given to owner; liability of owner. 1803. Lien; how enforced. 1804. Liens on vessels for labor in loading and discharging cargo, &c. 1805. Liens, how filed; notice to mas ter, &c. 1806. Lien, how enforced. 1807. Judgment against contractor, &c., to be judgment against the master, &c. 1808. Liens due sub-contractors, &c., not to exceed amount due con- tractor, &c. Sec. 1781. Liens on buildings. 1869-'70, e. 306, s. 1. Every building built, rebuilt, repaired or improved, together with the necessary lots on which said building may be situated, and every lot, farm or vessel, or any kind of property, real or personal, not herein enumerat- ed, shall be subject to a lien for the payment of all debts contracted for work done on the same, or material fur- nished. Wilkic V. Bray, 71—205; Gray v. Nash, 78—100; Lanier v. Bell, 81— 337; Whitaker v. Smith, 81—340; Reynolds v. Pool, 84—37; Gumming v. Bloodworlh, 87—83. 680 LIENS. [Chap. 41. Sec. 1783. Liens on crops. lS69-'70, c. 206, s. 2. The lien for work on crops or faims or materials given by this cliapter shall be preferred to every other hen or incumbrance, which attached upon the property subse- quent to the time at which the work was commenced or the materials were furnished. Warren v.Woodard, 70-383; Reynolds v. Pool. 84-37; Curtis v. Cash, 84 — 41; Gumming V. Bloodworth, 87—83. Sec. 1783. Personal property subject to lien. 1869-'70 c. 206, s. 3. Any mechanic or artisan who shall make, alter or re- pair any article of personal property at the request of the owner or legal possessor of such property, shall have a hen on such property so made, altered or repaired for his ]ust and reasonable charge for his work done and mate- rial furnished, and may hold and retain possession of the sarne until such just and reasonable charges shall be paid; and if not paid for within the space of thirty days, pro- vided it does not exceed fifty dollars, if over fifty dollars ninety days, after the work shall have been done, such mechanic or artisan may proceed to sell the property so made, altered or repaired at public auction, by giving two weeks' pubhc notice of such sale by advertising in some newspaper in the county in which the work may have been done, or if there be no such newspaper, then by posting up notice of such sale in three of the most pubhc places in the county, town or city in which the work may have been done, and the proceeds of the said sale shall be applied first to the discharge of the said lien and the expenses and costs of keeping and selling such property, and the remainder, if any, shall be paid over to the owner thereof. Sec. 1784. Claims where filed. 1869-'70, c. 206, s. 4 1876-'7, c. 53. s. 1. All claims against personal property, of two hundred dollars and under, may be filed in the office of the nearest justice of the peace; if over two hundred dollars or against any real estate or interest therein, in the office of the superior court clerk in any county where the labor has been performed or the materials furnished; but all claims shall be filed in detail, specifying the materials furnished or labor performed, and the time thereof. If the parties interested make a special contract for such labor performed, or if such material and labor are speci- fied in writing, in such cases it shall be decided agreeably Chap. 41.] LIENS. 681 to the terms of the contract, provided the terms of such contract do not affect the lien for such labor performed or materials furnished. Boyle V. Roberts, 71—130; Cbadbourn v. Williams, 71—444; Wray v. Hariis, 77—77; Lanier v. Bell, 81—337. Sec. 1785. To be brought before justice of tbe peace in case of disagreemeut. 1869-'70, c. 20C, s. 5. Ill case of any disagreement between the parties inter- ested in any such contract it may be brought before the nearest justice of the peace by the plaintiff or defendant for arbitration or otherwise, as the said justice may de- cide, provided the amount claimed does not exceed two hundred dollars; if over that amount, all claims must be filed with the clerk of the superior court and entered on the calendar, so as to be brought before the court at the first term after the filing of any claims. The judges of the superior court may appoint referees to ascertain the proper value of any labor performed on any building or farm or any material furnished or specified in the appli- cation at the time of plaintiff or defendant filing his petition. Sec. 1786. What rights not aflfected. 1869-'70, c. 206, s. 6. _ Nothing in this chapter shall be construed to affect the rights of any person to whom any debt may be due for any work done for which priority of claim is filed with the proper officer. Sec. 1787. Costs allowed to either party. 1869-'70, c. 206, s. 7. Costs are aliowed to either party upon the rules estab- lished by law in actions arising on contracts, made under this code. Sec. 1788. Defendant entitled to set-off. 1869-'70, c. 206, s. 8. The defendant in any suit to enforce the lien shall be entitled to any set-off or claim arising between the con- tractors during the performance of the contract. Sec. 1 789. When notice of the lien shall be filed; clerk to keep book of liens; clerk'.s fee. 18«8-'9, c. 117, s. 4. 1870-'7, c. 53, s. 2. 1881, c. 65. 1883, c. lOl. _ Notice of the lien shall be filed, as hereinbefore pro- vided, at any time within twelve months after the com- 682 LIENS. [Chap. 41 pletion of the labor, or the final furnishing the materi^ils, or the gathering of the ci-ops: Provided, that in cases of liens on real estate, or any intei-est therein, given by this chapter, the notice shall be filed in the office of the supe- rior court clerk within twelve months after the completion of the labor or the final furnishing of the matei-ials. And the clerk of the superior court shall keep a book in which he shall enter all notices of liens filed in his office. He shall provide an index thereto of the names of the claimant and the party against whom it is filed; and for his services, the clerk's fee shall be ten cents in each case. Boyle V. Roberls, 71—130. Sec. 1790. Proceedings to enforce lien; in what courts and in what time. 1868-'9, c. 117, s. 7. 1876-'7, c. 350. 1876-'7, c. 251. Proceedings to enforce the lien created, must be com- menced in the court of a justice of the peace, and in the superior court, according to the jurisdiction thereof, within six months from the date of fifing the notice of the lien: Provided, that if the debt be not due within six months but becomes due within twelve months, suit may be brought or other proceedings instituted to en- force the lien in thirty days after it is due, and this shall apply to existing liens and proceedings. Boyle V. Roberts, 71—130; Gay v. Nash, 84—333. Sec. 1701. Executions to issue as upon other judgments. 1868-'9, c. 117, s. 9. Upon judgment rendered in favor of the claimant, an execution for the collection and enforcement thereof shall issue in the same manner as upon other judgments in actions arising on contract for the recovery of money only, except that the execution shall direct the officer to sell the right, title and interest which the owner had in the premises or the crops thereon, at the time of filing notice of the lien, before such execution shall extend to the general property of the defendant. Boyle V. Roberts, 71—130. Sec. 1792. Order in which liens arc to be paid. 1868-'9, C.117, s. 11. The liens created and establ:shed by this chapter shall be paid and settled according to the priority of the notice of the lien filed with the justice or the clerk. Chap. 41 ] LIENS. . 683 Sec. 1793. How liens discharged. 1868-'9, c. 117, s. 12. All liens created by this chapter may be discharged as follows: (1) By filing with the justice or clerk a receipt or ac- knowledgment that the lien has been paid or discharged, signed by the claimant. (2) By depositing with the jnstice or clerk money equal to the amount of the claim, which money shall be held by said officer for the benefit of the claimant. (3) By an entry in the lien docket that the proceedings on the part of the claimant to enforce the lien have been dismissed, or a judgment rendered against the claimant in such action. (4) By a failure of the claimant to commence an action for the enforcement of the lien within six months from the notice of lien filed. Sec. 1794. No executlou issued by justice of the peace against real estate. 1868-'9, c. 117, s. 13. No execution issued by a justice of the peace, under this chapter, shall be enforced against real estate or any interest therein, but justice's judgments may be docketed on judgment docket of superior court for the purpose of selling such estate or any interest therein. Sec. 1795. When remedy by attachment. 1868-'9, c. 117, s. 14. In all cases where the owner or employer attempts to remove the crop, houses or appurtenances from the premises, without the permission, or with the intent to defraud the laborer of his lien, the claimant may have a remedy by attachment. Brogden v. Piivett, 67 — 45. Sec. 1796. Laborer's share of the crop not liable to exe- cutlou against employer. 1866-'7, c. 59. Whenever servants and laborers in agriculture shall by their contracts orally or in writing, already or hereafter made, be entitled, for wages, to a part of the crops culti- vated by them, such part shall not be subject to sale under executions against their employers, or the owners of the land cultivated. Sec. 1797. Owners of stud-horses, &c., to have a lieu on colts. 1872-'3, c. 94, s. 1. In aU cases whei'e the o'^ner or auy agent for or em- ployee of the owner of any mare or jennet shall tui-n 684 LIENS. [Chap. 41. the sanje to a stud-horse or jack for the purpose of rais- ing colts, tlie price charged for the season of the stud- horse or jack shall be constituted a lien on the colt until the price so charged for the season is paid by the owner of the colt, his agent or employee. Sec. ] 798. Colt not exempt from execution. 1872-'3, e. 94, s. 2. 1879, c. 47. The colt shall not be exempt from execution for the payment of said season price by reason of the operatioii of the personal property exemption: Provided, that the person claiming such lien on the colt shall close the same within twelve months from the foahng of the colt. Sec. 1799. Lien on crops in favor of those making ad- vances. 1866-'7, c. 1, s. 1. 1872-'3, c. 133, s. 1. If any person shall make any advance either in money or supplies, to any person who is engaged in, or about to engage in the cultivation of the soil, the pereon so mak- ing such advance shall be entitled to a lien on the crops which may be made during the year upon the land in the cultivation of which the advances so made have been expended, in preference to all other liens existing or otherwise, to the extent of such advance: Provided, an agreement in writing shall be entered into before any such advance is made to this effect, in which shall be specified the amount to be advanced, or in which a limit shall be fixed beyond which the advance, if made from time to time dm-ing the year, shall not go; which agree- ment shall be recorded in the office of the register of the county in which the person to whom the advances are made I'esides, within thirty days after its date. Warren v. AVoodard, 70—383; Harrison v. Ricks, 71 — 7; Clarke v. Farrar, 74—686; Tliomas v. Campbell, 74—787; Gay v. Nash, 78—100; Womble v. Leacli, 83 — 84; Ray v. Pearce, 8t — 485; Cottinghain v. Mc- Kay, 86— 241;'*Patapsco v. Magce, 86—350. Sec. 1800. Warrant to sheriffs to seize the crops on aflS- davit that the lien is about to be defeated; proviso. 1866-'7, c. 1, s. 2. 1872-'3, c. 133, s. 2. 1883, c. 88. If the person making such advances shall make an affidavit before the clerk of the superior court of the county in which such crops are, that the amount secured by said lien for such advances, or any part thereof, is due and unpaid, that the person to whom such advances have been made, or any other person having the said crop in his possession, is about to sell or dispose of his crop, or in Chap. 41.] LIENS. 685 any other way is about to defeat the lien hereinbefore provided for, accompanied with a statement of the amount then due, it shall be lawful for him to issue his warrant, directed to any of the sheriffs of this state, re- quiring them to seize the said crop, and, after due notice, sell tlie same for cash and pay over the net proceeds thereof, or so much thereof as may be necessary in the extinguishment of the amount then due: Provided, that if the person to whom such advances have been made, shall, within thirty days after such sale has been made, give notice in writing to the sheriff, accompanied with an affidavit to this effect, that the amount claimed is not justly due, then it shall be the duty of the said sheriff to hold the proceeds of such sale subject to the decision of the court, upon an issue which shall be made up and set down for trial at the next succeeding term of the superior court for the county in which the person to whom such advances have been made resides: Provided further, that the lien provided in this and the preceding section shall not affect the rights of landlords to tlieir proper share of rents. Harrison v. Kicks, 71—7; Gay v. Nash, 78—100; Gay v. Nash, 84—333; Cottingham v. McKay, 86—241. Sec, 1801. liien given to sub-contractors, laborers and persons furnishing material for improvements upon real estate; proviso. 1880, c. 44, s. 1. All sub contractors and laborers who are employed to furnish or who do furnish material for the building, re- pairing or altering any house or other improvement on real estate, shaU have a lien on said house and real estate for the amount of such labor done or material furnished, which hen shaU be preferred to the mechanics' lien now provided by law, when notice thereof shall be given as hereinafter provided: Provided, that the sum total of all the liens due sub-contractors and material men shall not exceed the amount due the origmal contractor at the time of notice given. Sec. 1802. Notice to be given to owner; liability of owner. 1880, c. 44, s. 2. Any subcontractor, laborer or material man, who claims a hen as provided in the preceding section, may give notice to the owner or lessee of the real estate who makes the contract for such building or improvement at any time before the settlement with the contractor, and if the said owner or lessee shall refuse or neglect to re- 686 LIENS. [Chap. 41. tain out of the amount due the said contractor under the contract as much as shall be due or claimed by the sub- contractor, laboi-er or material man, the sub-contractor laborer or material man may proceed to enforce his lien' and dtter such notice is given, no payment to the con- tractor shall be a credit on or discharge of the lien herein provided. Sec. 1803. liien, bow enforced. 1880, c. 44, s. 3. The lien given by the two preceding sections may be enforced as provided for other liens in this chapter except when it is otherwise provided in said sections. ' Sec. 1804. Liens on vessels for labor in loading or dis- cbarging cargo, &c. 1881, c. 356, s. 1. Every vessel, her tackle, apparel and furniture shaU be subject to a lien for all labor done by contractors or others m loading or discharging the cargo of such vessel, and also for all labor done by any sub-contractor or laborer employed in discharging or loading any such vessel, when such labor is done under contract with a contractor or stevedore who may be employed by the master, agent or owner of such vessel. Sec. 1805. Liens, bow filed; notice to master. &c. 1881 c. 356, s, 2. The liens provided for in the preceding section shall be filed as IS provided for other liens: the sub-contractor or laborer may give notice to the master, agent or owner of such vessel, that the contractor or stevedore is or will be- come indebted to him, when it shall be the duty of such master, agent or owner of such vessel to retain out of the amount due to such contractor or stevedore under his contract, as much as shall be due or claimed by the per- son giving the notice, and after such notice is given no payment to the contractor or stevedore shall be a credit on or a discharge of the lien herein provided. Sec. 1806. Liens, bow enforced. 1881, c. 366, s. 3. The enforcement of such lien shall be by summons against the contractor or stevedore, and also against the master, agent or owner of such vessel, who made the contract with such contractor or stevedore, if over two hundred dollars, to be issued by the clerk of the superior court, and if under two hundred dollai-s, by a justice of the peace. I Chap. 42.] MARRIAGE, ETC. ^^87 sec. 1807. Judgment against ^^-tj^^^'^g'-^ ^.^•a*^.';?^' iiul-ment against tlic master, &c, 1S»1, c. ^oo. s TC^r"ment against the contractor or stevedore shall ine jucignitm dj^aii -.^^i +i-,o mn^fpr aeent or owner also be a judgment agamst the ™astei agem judgment. sec. 1808. Liens due -'>-e<-*-?|-' ^^-b^C *s?5!""' amount duo contractor, &c 1881, «• ^oO ^'^ , _ mmmm f ™",„n„A VnSo??"lt eSf at ?he time of the ^^vice Slummo"f«pon.such master, agent o>- owner when no notice has been given. CHAPTER FORTY-TWO. MAREIAGE AND MAREIAGE SETTLEMENTS, AND THE CONTRACTS OF MARRIED WOMEN. Section. 1816. Penalty ou register for issuing license unlawfully. 1817. Penalty on minister or officer marrying without a license. Section. 1809. Who may contract a marriage. 1810. Wlio may not contract a mar riage. „•„,;„ raarivinil wiinoui a jiuuuou. 1811. Degree of kmship ^f '° ^^^': i,%f deeds to keep a ..liich persons may not law- 1 1818. he^utu ^^^^^^^^^^ 1819. Penalty on register for failure to record license ;ind return fully marry. 1813. What necessary to a valid mar- riage. 1813. Ministers not to celebrate mar- riage unless a license be de- livered. 1814. License, when to be issued by register of deeds. 1820. Marriage settlements void as to existing creditors. 1831. Marriage settlements void ex- cept from registration. 1833. Husband does not become lia- ble for wife's debts. 1S15. Ponn of license; pa-icuiars | ^^^^ SLuIJlS^rS continues MARRIAGE, ETC. [Chap. 42. Section. 1824. In actions against wife, sum- mons served ou husband. 1825. Husband may be ordered to pay costs, or discharged from defence. 1836. Wife not capable of conlract- iiif); without her husband, un- less a free trader. 1827. Married woman may become a free trader, how; written form of the free traders. 1838. A free trader from date of registration. 1829. Copy from register's books, evidence. 1830. How she may cease to be a free trader; public notification given. 1831. Womau living separate from her husband may be a free trader; wives of idiots or lunatics made free traders. 1833. Wife abandoned by her hus- band, &c., a free trader. 1833. Husband jointly liable with wife for torts, &c., committed by wife. 1834. What leases, &c., by wife valid, and what not, without private examination. I Section. 1 1835. What contract between hus- band and wife not to be valid unless with sanction of judge, or other officer. 1S30. What contracts between hus- band and wife valid. 1837. Savings from separate estate of wife, her separate proper- ty. 1838. Husband tenant by the court- esy, when. 1839. Power of married woman to make a will. 1840. Real estate of wife not to be sold or leased without her consent; husband's interest exempt from execution. 1841. Wife may insure her husband's life for her separate use. 1843. Persons, formerly slaves, when deemed to have been mar ricd. 1843. Consequences of a divorce a ■Binculo on the property of the parties. 1844. Consequences of an elopement with an adulterer. 1845. Consequences of a husband separating from his wife and living in adultery. Sec. 1809. Who may contract a marriajre. 1871-»2 o 193, s. 1. s xo-0">7;S"ature sub- Sed to the certificate under this license, aud;vith the blanks the.ein fiTl. according to the facts, under penalty of forfeiting two hundred dol- lars to the use1)f any person who shall sue for the same. Issued th.s .... day of ,18.... j^ jj^ Register of Deeds of county." Certificate to be fiUed up and signed by the minister or officer celebrating the marriage, and also to be signed by one or more witnesses present at the marriage, who shall add to their names their places of residence: "I N O an ordained minister of Giere state to what religious denomi- nation, or .i,7st>ce of the peace, as the case ^.^yJ^..)unaod >■' n^f m^o^^y rhere name the parties,) the parties licensed above, on the ... . aay oi ... . ._. , 18 ..?, at the house oif P. R.. in (here name the town, if any, the township and county,) according to law. ^^^^ ^ Witnesses present at the marriage: S. T., of" (liere give the residence.) Sec. 1816. Penalty on register for issuing license unlaw- fully. 1871-'3, 0.193,8.7. Every register of deeds who shall knowingly or with- out reasonable inquiry issue a license for the marriage ot any two persons to which there is any lawful impedi- ment or where either of the persons is under the age ot eio-hteen years, without the consent required by section eighteen hundred and fourteen, shall forfeit and pay two hundred dollars to any person who shall s'le for the same. Holt V. McLean, 75-347; State v. Snuggs, 85-541; Nonnan v. Dunbar, 8 Jon., 317. Sec. 1817. Penalty on minister or officer marrying with- out a license. 187 1-'2. c. 193, s. 8. Every minister or officer mentioned in section eighteen hundred and twelve, who shall marry any couple without a license being first dehvered to him, as re- quired by this chapter, or after the expiration of such license or who shall fail to return such hcense to the register of deeds within two months after any marriage celebrated by virtue thereof, with the certificate append- ed thereto duly filled up and signed, shall forfeit and 692 MAKRIAGE, ETC. [Chap. 42. pay two hundred dollars to any person who shall sue therefor, and shall also be guilty of a misdemeanor. Norman v. Duubar, 8 Jon., 317. Sec. 1818. Register of deeds to keep a book of marriages. 1871-'2, c. 193, s.O. Every register of deeds shall keep a book (which shall be furnished on demand by the board of county commis- sioners of his county) on the first page of which shall be written or printed: "Record of marriage licenses and of returns thereto, for the county of fiom tlic day of , 18. . ., to the day of , 18. .., both inclusive." In said book shall be entered alphabetically, according to the names of the proposed husbands, the substance of each marriage license and the return thereupon as fol- lows: The book shall be divided by lines with columns which shall be properly headed, and in the first of these beginning on the left, shall be put the date of issue of the license; in the second, the name in full of the intend- ed husband, with his residence; in the third his age; in the fourth, his color; in the fifth, the name in full of the intended wife, with her residence; in the sixth, her age; in the seventh, her color; in the eighth, the name and title of the minister or officer who celebrated the mar- riage; in the ninth, the day of the celebration; in the tenth, the place of the celebration; in the eleventh, the names of all or at least three of the witnesses who signed the return as present at the celebration. The original hcense and return thereto shall be filed and preserved. Sec. 1819. Penalty on register for failure to record license and return. 1871-'3, c. 193, s. 10. Any register of deeds who shall fail to record, in the manner above prescribed, the substance of any marriage license issued by him, or who shall fail to record, in the manner above prescribed, the substance of any return made thereon, within ten days after such return made, shall forfeit and pay two hundred dollars to any person who shall sue for the same. Norman v. Dunbar, 8 Jon. , 317. Sec. 1820. Marriage settlements void as to existing credit- ors. 1871-'3, c. 193, s. 11. Every contract and settlement of property made by Chap. 42.] MAREIAGE, ETC. 693 any man and woman in consideration of a marriage be- tween them, for the benefit of such man or woman, or of their issue, wliether the same be made before or after marriage, shall be void as against creditors of the parties making the same respectively, existing at the time of such marriage, if the same is antenuptial, or at the time of making such contract or settlement, if the same is post-nuptial. Hardy v. Holly, 84—661, Sec. 1821. Marriage settlements void except from regis- tration. 1871-'2. c, 193. s. 12. Every such contract and settlement of property shall be void as against the creditors of or purchasers from the husband and wife respectively, as to any lands, tene- ments, or hereditaments, and chattels real, conveyed or agreed to be conveyed thereby, except from the registra- tion thereof in the county in which such lands, tene- ments, hereditaments or chattels real lie, and as to any personal property conveyed or agreed to be conveyed, thereby, except from the registration in the county in which such husband and wife at the marriage, or at the making thereof if after the marriage, shall reside. Sec. 1822. Husband does not become liable for wife's debt. 1871-'2, c. 193, s. 13. No man by marriage shall incur any liabihty for any debts owing, or conti-acts made, or for wrongs done by his wife before the marriage. Sec. 1823. The liability of wife continues. 1871-'2, c. 193, s. 14. The liability of a, feme sole for any debts owing, or con- tracts made or damages incurred by her before her mar- riage, shall not be impaired or altered by such marriage. Sec. 1824. In actions against wife, summons to be served on husband. 1871-'2, c. 193, s. 15. In all actions brought against a married woman, who is not a free trader, (as hereinafter jirovided for,) the sum- mons shall be served upon the liusband also, and on mo- tion to the court in which the action is pending, he may be allowed, with her consent, to defend the same in her name and behalf, but no judgment shall be given against him, upon any liability claimed against her aris- 694 MARRIAGE, ETC. [Chap. 42. iug before the marriage or upon any contract made by her alone after her marriage. Rowland v. Perry, 64—578; Viek v. Pope, 81—23; Gulley v. JIacy, 81— 356; Nicholson v. Cox, 83 — 44: Kicbolson v. Co.x, 63 — 48; Holhngsworth V. Harman, 83—153; Roberts v. Liseubce, 86—136. Sec. 1835. Husband may be ordered to pay co.sts or dis- charged from defence. 1871-'2, c. 193, s. IC. Whenever any husband shall be allowed to defend for his wife, he may be ordered to pay costs for any miscon- duct, and may be discharged from the conduct of her de- fence, if it shall appear to the court that his defence is not bona fide in her interest. Sec. 1S26. Wife not capable of contracting without the husband unless a free-trader. 1871-'2, c. 193, s. 17. No woman during her coverture shall be capable of making any contract to affect her real or personal estate, except for her necessary pereonal expenses, or for the support of the family, or such as may be necessary in or- der to pay her debts existing before marriage, without the written consent of her husband, unless she be a free trader, as hereinafter allowed. Sutton V. Askew, 66 — 173; Harris v. Jenkins, 72 — 183; Baker v. Jordan, 73—145; Pippin v. Wesson, 74 — 437; Rounlrce v. Gay, 74—447; Atkinson V. Ricbardson, 74 — 455; Cooper v. Landis, 75—526; Huiitly v. Whitner, 77 — 393; Kirkman v. Greensboro Bunk, 77 — 394; HoUiday v. McMillan, 79^ 315; Vick V. Pope, 81—23; Hall v. Sliort, 81—273; O'Connor v. Harris, 81 —279; Fisher v. Webb, 84—44; Johnston v. Cochrane, 84 — 447; Hardy v. Holly, 84— 661; George v. High, 85—99; Roberts v. Lisenbee, 86—136; Smith V. Gooch, 86—276; Mebane v. Lay ton, 86—571; Clayton v. Rose, 87 —106. Sec. 1827. Married woman may become a free trader, how; written form of free traders. 1871-'2, c. 193, ss. 18, 19. Every married woman of the age of twenty-one years or upwards, with the consent of her husband, may be- come a free trader in the manner following: (1) By ante-nuptial contract, proved and registered, as hereinafter required; or, (2) She and her husband shall sign a writing in the fol- lowing or some equivalent form: Chap. 42.] MARRIAGE, ETC. 695 "A B., of the aire of twenty-ono years or upwards, wife of C. D., of . . . . couuty with his cbnsenl. testitiod by his signature hereto, enters herself us a free trader from the date of the registration hereof. ^ ^ (Signed) (.; j^' Witness: E. F. Registered this day of , 18 The said writina; may be pi'oved by the subscribing wit- ness or acknowledged by the parties before any officer authorized to take the probate of deeds, and shall be hied and registered in the office of the register of deeds for the county in which the woman proposes to have her prmci- pal or only place of busmess. Manning v. Manning, 79 — 300. Sec. 1828. A free trader from date of registration. 1871- '3, c. 193, s. 20. From the time of the registration of the writing n-ien- tioned in the preceding section, the married woman therein mentioned shall be a free trader, and authorized to contract and deal as if she were a/e??ie sole. Manning v. Manning, 79 — 300. Sec. 1829. Copy from register's books evidence. 1871-'3, c. 193, s. 21. A copy of such writing, duly proved and registered, and certified by the register of the county m which the same is registered, shall be admissible in evidence as certified copies of registered deeds are, or may be allowed to be. Manning v. Manning, 79—300. Sec. 1830. How she may cease to be a free trader; public notification given, 187 1-'2, c. 193, s. 22. The right of a married woman to act as a free trader may be ended at anv time by an entry by her, or by her atttn-ney, in the margin of the registration of the writing above mentioned, to the effect that from the date of such marginal entrv, she ceases so to act, and by publication to that effect we'ekly for three weeks in some newspaper published in the county in which she had her principal or only place of business, or if there shall be none so pub- hshed, then in any other convenient newspaper. But such entry and publication shall not impair any habihties incurred previously thereto, nor prevent such married woman from becoming liable afterwards to any person whom she may fraudulently induce to deal with her as a free trader. 696 MARRIAGE, ETC. [Chap. 42. Sec. 1831. Woman living separate from her luisband may be a lice trader; wives of idiots or lunatics made free traders. 1871-'2, c. 193, s. 23. 1880, c. 35. Every woman who shall be living separate from her husband, either under a judgment of divorce by a compe- tent court, or under a deed of separation, executed by said husband and wife, and registered in the county iu which she resides, or whose husband shall have been de- clared an idiot or a lunatic, shall be deemed and held, from the docketing of such judgment, or from the regis- tration of such deed, or from the date of such idiocy or lunacy and during its continuance, a free trader, and shall have power to convey her personal estate and her real estate without the assent of her husband. Rountree v. Gay, 74 — 447. Sec. 1833. Wife abandoned by her husband, &c., a free trader, 1871-'2, c. 193, s. 24. Every woman whose husband shall abandon her, or shall maliciously turn her out of doors, shall be deemed a free trader, so far as to be competent to contract and be contracted with, and to bind her separate property, but the hability of her husband for her reasonable sup- port shall not thereby be impaired, and she shall have power to convey her personal estate and her real estate without the assent of her husband. Rountree v. Gay, 74—447. Sec. 1833. Husband liable jointly with wife for torts, &c., committed by wife. 1871-'2, o. 193, s. 25. Every husband Hving with his wife shall be jointly lia- ble with her for all damages accruing from any tort committed by her and for all costs and fines incurred in any criminal proceeding against her. Roberts v. Lisenbce, 86—130. Sec. 1834. What leases, &c., by wife valid, and what not, without private examination. 1871-'2, c. 193, s. 26. No lease or agreement for a lease or sub-lease or as- signment by any married woman, not a free trader, of her lands or tenements, or chattels real, to run for more than three years, or to begin in possession more than six months after its execution, or any conveyance of any freehold estate in her real property, shall be valid, unless the same be executed by her and her husband, and proved or acknowledged by them, and her free consent thereto, appear on her examination separate from her Chap. 42.] MAERIAGE, ETC. 697 husband, as is now or may hereafter be required by law in the probate of deeds of femes covert. Pippin V. Wesson, 74-437; Towles v. Fisher, 77—437; Manning v. Mann ng, 79—293; Jeffries v. Green, 79—330. Sec. 1835. What contract between husband and wife not to be valid, unless with sanction of judge, or other officer. 1871-'3, c. 193, s. 27. No contract between a husband and wife made during coverture shall be valid to affect or change any part of the real estate of the wife, or the accruing mcome thereof, for a longer time than three years next ensuing the making of such contract, or to impair or change the body or capital of the personal estate of the wife, oi- the accruing income thereof, for a longer time than three years next ensuing the making of such contract, unless such contract shall be in writing, and be duly proved as is reauired for conveyances of laud; and upon the exam- ination of the wife separate and apart from her husband, as is now or may hereafter be required by law in the probate of deeds of femes covert, it shall appear to the satisfaction of such officer that the wife freely ex- ecuted such contract, and freely consented thereto at the time of her separate examination, and that the same is not unreasonable or injurious to her. The certificate of the officer shall state his conclusions, and shall be conclu- sive of the facts therein stated: Provided, that the same may be impeached for fraud as other judgments may be. Banks V. Green, 78—247; Hollingsworth v. Harman, 83—153; George v. •Q\„\x, 85—99; Warliclc v. Wliite, 86—139. Sec. 1836. What contracts between husband and wife valid. 187 1-'2, c. 193, s. 28. Contracts between husband and wife not forbidden by the preceding section and not inconsistent with public policy are valid, and any pei'sons of full age about to be mariied, and snbject to the preceding section, any mar- ried persons may release and quit claim dower, tenancy by the courtesy, and all other rights which they might respectivelv acquire or may have acquired by marriage in the prop'erty of each other; and such releases may be pleaded in bar of any action or proceeding for the recov- ery of the rights and estates so released. Hollingswortli v. Harman. 83—153; George v. Iligb. 85—99. Sec. 1837. Savings from separate estate of wife, her sep- arate property. lS71-'2, c. 193, s. 29. The savings from the income of the separate estate of 30 698 MAERIAGE, ETC. [Ch.\p. 42 the wife, are her separate property. But no husband who, during the coverture (the wife not being a free trader under this chapter), has received, without objec- tion from his wife, the income of her separate estate, shall be liable to account for such receipt, for any greater time than the year next preceding the date of a sum- mons issued against him in an action for such income, or next preceding her death. Baker v. Jordan, 73—145; State v. Matthews, 76 — 41; State v. Wincroft, 76--38; Manning V. Manning, 79—300; Sliinn v. Smith, 79—310; HoUiday V. McMillan, 79—315; Cecil v. Smith, 81—285; George v. High, 85—90. Sec. 1838. Husband tenant by the courtesy, when. 1871- '2, c. 193, s. 30. Every man who hath married, or shall marry a woman, and by her have issue born alive, shall after her death, he surviving, be entitled to an estate as tenant by the courtesy during his life, in all the lands, tenements and hereditaments, whereof his said wife was beneficially seized in deed during the coverture, wherein the said issue was capable of inheriting, whether the said seizin was of a legal or of an equitable estate; except that when the wife shall have obtained a divorce a mensa et thoro, and shall not be living with her husband at her death, or when the husband shall have abandoned his wife, or shall have maliciously turned her out of doors, and they shall not be living together at her death; or if the husband shall have separated himself from his wife, and be living in adultery at her death, he shall not be tenant by the courtesy of her lands, tenements and here- ditaments. Long V. Graeber, 64 — 431 ; Teague v. Downs, 69—280; Hunt v. Salter- white, 85—73. Sec. 1839. Power of married woman to make a will. 1871-'2, c. 193, s. 31. Every married woman shall have power to devise and bequeath her real and personal estate as if she were a feme sole; and her will shall be proved as is required of other wills: Provided, that no will made by any married woman shall be held to deprive her husband, surviving, of his estate in her real property, as tenant by the cour- tesy, as defined in the preceding section, except in the cases therein excepted. Chap. 42.] MARRIAGE, ETC. 699 Sec. 1840. Real estate of wife not to be sold or leased without her consent; husband's interest exempt from execution. K. C, c. 56, s. 1. 1848, c. 41. No real estate belonging at the time of marriage to females, married since the third Monday of November, one thousand eight hundred and forty-eight, nor any real estate by them subsequently acquired, nor any real estate acquired on and since the first day of March, one thousand eight hundred and forty-nine, by femes covert, who were such on the said third Monday of November, one thousand eight hundred and forty-eight, shall be sub- ject to be sold or leased by the husband for the term of his own life or any less term of years, except by and with the consent of his wife, first had and obtained, to be ascer- tained and effectuated by deed and privy examination, according to the rules required by law for the sale of lands belonging to femes covert. And no interest of the husband whatever in such real estate shall be subject to sale to satisfy any execution obtained against him; and every such sale is hereby declared null and void. Adams v. Gillespie, 3 Jon. Eq.. 244; Hamlet v. Taylor, 5 Jon., 36; Houston V. Brown, 7 Jon., 161; Long v. Graeber, G4 — 431; Rowland v. Perry, 64—578; Teague v. Downs, 69—280; Wilson v. Arentz, 70—670; Lyon V. Akin, 78—258; Manning v. Manning, 79—293; Cecil v. Smith, 81—285: Young v. Greenlee, 83—346. Sec. 1841. Wife may insure her husband's life for her separate use. R. C, e. 56, s. 2. 1850, c. 90. Any feme covert, in her own name or in the name of a trustee with his assent, may cause to be insured for any definite time the life of her husband, for her sole and separate use, and she may dispose of the intei'est in the same by will, notwithstanding her coverture. Conigland v. Smith, 79—303; Burton v. Farinholt, 86—260. Sec. 1842. Persons formerly slaves, when deemed to have Jjeen mai-ried. 1866, c. 40, s. 5. Persons, both or one of whom were formerly slaves, who have complied with the provisions of section five, chapter forty, of the act of the general assembly, rati- fied March tenth, one thousand eight hundred and sixty- six, shall be deemed to have been lawfully married. State V. Samuel, 2 D. & B., 177; Cooke v. Cooke, Phil., 583; State r. Harris, 63—1; State v. Adams, 65—537; State v. Whitford, 8&— 036; Long V. Barnes, 87—329. 700 MAERIAGE, ETC. [Chap. 42. Sec. 1843. Consequences of a divorce a vinculo on the property of the parties. 1871-'3, c. 193, s. 43. When a marriage shall be dissolved a vinculo, the par- ties respectively, shall thereby lose all his or her right to an estate by the courtesy, or dower, and all right to any year's provisions or distributive share in the per- sonal property of the other, and all right to administer on the estate of the other, and every right and estate in the real or personal estate of the other party, v^^hich by settlement before or after marriage, was settled upon such party in consideration of the marriage only. Sec. 1844. Consequences of an elopement with an adul- terer. 187 1-'3, c. 193, s. 44. If any married woman shall elope with an adulterer, and shall not be living with her husband at his death, she shall thereby lose all right to dower in the lands and ten- ements of her husband, and also all right to a year's pro- vision, and to a distributive share from the personal prop- erty of her husband, and all right to administration on his estate, and also all right and estate in the property of her husband, settled upon her upon the sole considera- tion of the marriage, before or after marriage; and such elopement may be pleaded in bar of any action, or pro- ceeding, for the recovei-y of such rights and estates. Cook V. Sexton, 79—305 ; Warlick v. White, 86—139. Sec. 1845. Consequences of a husband separating from his wife and living in adultery. 1871-'3, c. 193, s. 45. If any husband shall separate himself from his wife and live in adulteiy he shall lose aU right and estate of whatever character, in and to her personal property, as administrator, or otherwise; and also any right and es- tate in the property of his wife, which may have been settled upon him solely in consideration of the marriage, by any settlement before or after marriage; and such separation, and living in adultery, may be pleaded in bar of any action or proceeding for the recovery of such right or estates. Chap. 43.] MILLS. 701 CHAPTER FORTY-THREE. MILLS. Section. 1846. What sball be public mills. 1847. Millers to grind according to turn. 1848. Measures to be kept. 1849. How persons -wishing to build a water-mill to proceed. 1850. Court to appoint three com- missioners. 1851. The third commissioner to notify meeting and preside. 1853. Duty of commissioners. 1853. What their report to contiiin. 1854. When mill shall not be allow- ed. 1855. Power of court, on return of report. 1856. Duty of persons to whom leave is granted. Section. 1857. Time to build or repair water- mill. 1858. Injury done by the erection of mills. 1859. Dams, when abated as nuisan- ces. 1860. When judgment for plaintiff of an annual sum for damages, said sum binding for five years. 1861. When yearly damages as high as twenty dollars. 1863. When judgment against plain- tiff; when not. 1863. Pay of commissioners. Sec. 1846. "Wliat shall be public mills. R. C, c. 71, s. 1. 1777,0. 132, s. 1. Every water grist-mill, steam mill, or wind mill, that shall grind for toll, shall be a public mill. Eason v. Perkins, 3 Dev. Eq., 88; Benbow v. Bobbins, 71—338; Ilyatt V. Myers, 73— 232; State v. Jaynes, 78—504. Sec. 1847. Millers to grind according to turn. K. C, c. 71, s. 6. 1777, c. 132, s. 10. 1793, c. 402. All millers of public mills shall grind according to turn, and shall well and sufficiently grind the grain brought to their mills, if the water will permit, and shall take no more toll for grinding than one-eightli part of the Indian corn and wheat, and one-fourteenth part for chopping grain of any kind; and every mUler and keeper of a mill making default therein shall, for each offence, forfeit and pay five dollars to the party injured: Provided, that the owner may grind his own grain at any time. Hyatt V. Myers, 73—232. 702 MILLS. [Chap. 43. Sec. 1848. Measures to be kept. K. C, c. 71, s. 7. 1777, c. 122, s. 11. All millers shall keep in their mills the following meas- ures, namely, a half bushel and peck of full measure, and also proper toll-dishes for each measure; and every owner, by himself or servant, keeping any mill, who shall keep any false toll- dishes, contrary to the true in- tent and meaning of this chapter, shall be guilty of a misdemeanor. State V. Perry, 5 Jon. , 252 ; State v. Nixon, 5 Jon. , 257 ; Hyatt v. Myers, 73 —233. Sec. 1849. How persons wishing to build a water-mill to proceed. 1868-'9, c. 158, s. 1. Any person wishing to build a water-mill, who hath land on only one side of a stream, shall issue a summons returnable to the superior court of tlie county in which the land sought to be condemned, or some part of it, lies, against the persons in possession and the owners of the land on the opposite side of the stream, and against such others as have an interest in the controversy; and the procedure shall be as is provided in other special pro- ceedmgs, except so far as the same may be moditied by this cliapter. Sumner v. Miller, 04—688; Benbow v. Bobbins, 71—338; Burnett v. Nicholson, 72—334; Burnett v. Nicholson, 86—99. Sec. 1850. Court to appoint three commissioners. 1868- '9, c. 158, s. 2. If no just cause should be shown against the building of such mill, the court shall appoint three freeholders, one of whom shall be chosen by the plaintiff, another by the defendants, and the third by the court, or if the plaintiff or defendants shall refuse or fail, or unreason- ably delay to name a commissioner, the court shall uanie one in lieu of such delinquent party; these commis- sioners may be changed from time to time by permis- sion of the court for just cause shown. Sec. 1851. The third commissioner to notify meeting and preside. 1868-'9, c. 158, s. 3. The third commissioner shall cause the otliers to be notified of tlie time and place of meeting, and shall pre- side at their meetings; they may, if necessary, summon and examine witnesses, who shall be sworn by the pre- siding cojnmissioner; any commissioner named by or for either of the parties, who, without just cause, shall fail Chap. 43.] MILLS. 703 to attend any meeting notified by the president, shall forfeit and pay to the opposite party fifty dollars; and if the president shall, in like manner, unreasonably delay to notify of a meeting, or fail to attend one that is appointed, he shall foifeit and pay to the plaintiff fifty dollars, and to the defendant a like sum. Sec. 1853. Duty of commissioners. 1868-'9, c. 158, s. 4. The commissioners shall be sworn by some officer qualified to administer an oath, to act impartially between the parties, and to perform the duties hex-ein imposed on them honestly and to the best of their ability. They shall view the premises where the mill is proposed to be built, and shall lay off and value a portion of the land of the plaintiff, not to exceed one acre in area, and an equal area of the land of the defendants opposite thereto, and report their proceedings to the court within a reasonable time, not exceeding sixty days. Burnett v. Nicholson, 86—99. Sec. 1853. What their report to contain. 1868-'9, c. 158, s. 5. The report of the commissioners shall set forth: (1) The location, quantities and value of the several areas laid off by them; (2) Whether either of them includes houses, garden, orchards or other immediate conveniences; (3) Whether the proposed mill will overflow another mill or create a nuisance in the neighborhood; (4) Any other matter upon which they shall have been directed by the court to report, or which they may think necessary to the doing of full justice between the parties. Austin V. Helms, 65—560; Burnett v. Nicholson, 72—334. Sec. 1854. "When mill shall not be allowed. 1868-'9, c. 158, s. 6. If the area laid off on the land of either party take away houses, gardens, orchards, or other immediate con- veniences; or if the mill proposed will overflow another mill, or will create a nuisance in the neighborhood, the court shall not allow the proposed mill to be built. Burgess v. Clark, 13 Ired.. 109. Sec. 1855. Power of court on return of report. 1868-'9, c. 158, s. 7. If the report be in favor of building the proposed indl, and is confirmed, then the court may, in its discretion, 704 MILLS. [Chap. 43. allow either the plaintiff or defendant to erect such mill at the place proposed, and shall order the costs, and the \'alue of the opposite area, to be paid by the party to whom such leave shall be granted; and upon such pay- ment, the party to whom such leave shall be granted shall be vested with title in fee to the opposite area. Such payment may be made into court for the use of the parties entitled thereto. Sec. 1856. Duty of persons to whom leave is g^rauted. 1868-'9, c. 158, s. 8. The person to whom leave shall be granted shall, within one year, begin to build such water-mill, and shall finish the same within three years; and thereafter keep it up for the use and ease of such as shall be customers to it: otherwise, the said land shall return to the person from whom it was taken, or to such other person as shall have his right, unless the time for finishing the mUl, for reasons approved by the court, be enlarged. Sec. 1857. Time to build or repair water-mill. 1868-'9, c. 158, s. 9. If any water-mill belonging to any person, not being of age, a married woman, or of unsound mind, or im- prisoned, falls, burns, or is otherwise destroyed, such person and his heirs shall have three years to rebuild and repair the same, and any person under any disability aforesaid, shall have three years from the removal of the disability. Sec. 1858. Injury done by the erection of mills. 1876 '7, c. 197, s. 1. Any person conceiving himself injured by the erection of any grist-mill, or mill for other useful purposes, may issue his summons returnable before the judge of the superior court of the county where the endamaged land, or any part thereof hes, against the persons authorized to be made parties defendant. In his complaint he shall set forth in what respect and to what extent he is in- jured, together with such other matters as may be neces- sary to entitle him to the relief demanded. The court shall then proceed to hear and determine all the ques- tions of law and issues of fact arising on the pleadings as in other civil actions. Fellow V. Fulgbam, 3 Mur., 254; Wilson v. Myers, 4 Hawks, 73; Purcell V. MrCallum, 1 D. & B.. 222; Gilbert v. Jones, 1 D. & B., 3o9; Bridgers v. Pureell, 1 V, &B., 492; Pugli v. Wlieeler, 2 D. & B., 50; Bridgers v. Puicell, \ Chap. 43.] MILLS. 705 1 Ircd., 233: Waddy v. Johnson, 5 Ired., 333; Cochran v. Wood, 6 Ired., 194; Howcott V. Warren, 7 Ired., 20; Fowcott v. Coffield, 7 Ired., 24; Pace V. Freeman, 10 Ircd., 103; Bcatty v. Connor, 13 Ircd., 341; Kimel v. Kimel, 4 Jon., 131; Wright v. Stowc, 4 Jon., 516; Shaw v. Ethcridge, 7 Jon., 235; Griffin v. Foster, 8 Jon., 337: Little v Stanbacli, 03—385; Powell V. Lash, 64—456; Sumner v. Miller, 64—688; Austin v. Helms, 65—560; Jenkins v. Conley, 70 — 353; Benbow v. Robbins, 71 — 338; Henly v. Wilson, 77—316: Hester v. Broach, 84—251; Daughtry v. Warren, 85—136; Bur- nett V. Nicholson, 86—99. Sec. 1859. Dams, when abated as nuisances. 1876-'7, c. 197, s. 3. When damages shall be recovered in final judgment in such civil actions and execution shall issue and be re- turned unsatisfied, and the plaintiff is not able to collect the same either from the insolvency of the defendant or by reason of the exemptions allowed to defendant, the judge shall, on the facts being made to appear before him by affidavit or other evidence, order that the dam, or portion of the dam, or other cause creating the injury, shall be abated as a nuisance, and he shall have power to make aU necessary orders to effect this purpose. Jones V. Clarke, 7 Jon., 418; Daughtry v. Warren, 85 — 136. Sec. 18G0. Wlien judgment for plaintiff of an annual sum for damages, said sum binding for live years. 1868- '9, c. 158, s. 12. A judgment giving to the plaintiff an annual sum by way of damages, shall be binding between the parties for five years from the issuing of the summons, if the mill is kept up during that time, unless the damages shall be increased by raising the water or otherwise. Gillet V. Jones, 1 D. & B., 339; Pugh v. Wheeler, 2 D. & B., 50; Bridgersv. Purcell. 1 Ired., 233; Cochran v. Wood, 6 Ired., 194; Burnett V.Nicholson, 72 — 334; Hester v. Broach, 84 — 251; Burnett v. Nicholson, 86—99. Sec. 1861. When yearly damages as high as twenty dol- lars. 1868-'9, c. 158, s. 14. In all cases where the final judgment of the court shall assess the yearly damage of the plaintiff as high as twenty dollars, nothing in this chapter contained shall be con- strued to prevent the plaintiff, his heirs or assigns, from suing as heretofore, and in such case, the final judgment aforesaid shall be binding only for the year's damage pre- ceding the issuing of the summons. Gilliam v. Cannady, 11 Ired., 106; Hester v. Broach, 84 — 251; Burnett V. Nicholson, 86—99. 706 MONEY IN HANDS OF CLERKS. [Chap. 44. Sec. 1862. When jiidgmeut against plaintiff, when not. 1868-'9, c. 168, s. 15. If the final judgment of the court shall be that the plaintiff hath sustained no damage, he shall pay the costs of his proceeding; but if the final judgment shall be in favor of the plaintiff, he shall have execution against the defendant for one year's damage, preceding the issu- ing of the summons, and for all costs: Provided, that if the damage adjudged do not amount to five dollars, the plaintiff shall recover no more costs than damages. And if the defendant do not annually pay the plaintiff, his heirs or assigns, before it falls due, the sum adjudged as the damages for that year, the plaintiff may sue out exe- cution for the amount of the last year's damage, or any part thereof which may remain unpaid. KiniL'l V. Kimel, 4 Jon., 121; Wright v. Stowe, 4 Jon., 51C; Hester v. Broacli, 84—251, Sec. 1863. Pay of commissioners. 1868-'9, c. 158, s. 16. Each commissioner appointed under this chapter shall be entitled to two dollars per day to be paid and taxed as the other costs provided in this chapter. CHAPTER FORTY- FOUR. MONEY REMAINING IN HANDS OF OLEEKS AND OTHERS. Section. 1864. Clerks, &c., of all courts to maki' statement of moneys re- maining in hand three years, unless detained by order of court, and publish the same at court-house door; to whom statement sent. 1865. Moneys to be paid to certain Section. counts, Ac, to be sued; pen- alty $100; where suit brought. 1867. Clerks, &c., admitting money in hand, and failing to pay, how proceeded against. 1868. Sheriff to account for such moneys in like manner as clerks. public officers. 1869. Moneys may be used by the 1866. Clerks failing to render ac- ] public till called for by owners. Chap. 44.] MONEY IN HANDS OF CLEEKS. 707 Sec. 1864. Clerks, &c., of all courts to make statement of moneys remaining in hand three years, unless detained by order of court, and publish the same at court-house door; to whom statement sent. R. C, c. 73, s. 1. 1823, c. 1186, s. 1. 1831, c. 3, ss. 1, 3. Every clerk of the superior court, inferior court, crim- inal court and clerk of the supreme court, at the first session of the court of which he is clerk, which shall be after the first day of August in every year, shall produce to said court a statement, on oath, of all moneys remain- ing iu his hands, which may have been paid into his of- fice three years or more previous thereto, and shall have come into his hands either directly from parties, or from his predecessor in office, and is not detained in his custody by special order of the court, specifying therein the amount of each claim, and the name of the person to whom the same is payable, a copy of which statement he shall forthwith post up in his office, and at the court- house door; and if there be no such moneys in his hands, he shall make affidavit of the same, which statement or affidavit, if made by a clerk of the supreme court, the court shall cause to be transmitted to the state treasurer and auditor; if made by a clerk of the superior, inferior or criminal court, the judge or presiding justice of the court before whom it is made shall cause the same to be transmitted to the officer appointed to receive and dis- burse the county funds on or before the first day of Janu- ary in the next year. Summey v. Johnston, Winst., 98. Sec. 1865. Moneys to be paid to certain public officers. R. C, c. 73, s. 3. 1823, c. 1186, s. 2. 1831, c. 3, ss. 1,3. The said officers shall, on or before the first day of January in every year after the foi'egoing statements are made, account with and pay to the persons entitled to receive the same, all such balances reported as aforesaid to be in their hands; that is, the clei'k of the supreme court shall pay to the state treasurer, and the other clerks shall pay to the receivei-s of the county funds of their respective counties. Sec. 1866. Clerks failing to render account, &c., to be sued; penalty $100; where suit brought. R. C, c. 73, s. 3. 1823, c. 1186, s. 3. 1831, c. 3, s. 2. If any clerk shall fail to comply with the duties herein enjoined, he shall be liable to be sued for the moneys in m MONEY IN HANDS OF CLERKS. [Chap. U. his hands, and, moreover, shall forfeit and pay for every offence one hundred dollars, to be recovered in the name of the state and for the use of the county, by the receiver of the county funds; except that in the case of the de- fault of the clerk of the supreme^ court, suit shall be brought by the state treasurer in the superior court of Wake county, and the recovery shall go to the state treasury. Sec. 1867. Clerks, &c., admitting' money in hand, and failing to pay, how proceeded against. K. C, c. 73, s. 4. 1823, c. 1186, s. 4. 1831, c. 3, s. 2. If any of the said officers shall fail to pay any such money, by him admitted to be due, on or before the first day of January in every year as aforesaid, such officer shall be proceeded against by the state treasurer in any com't of record in the state; or by the proper county offi- cer', in the courts of his own county, in the like manner as against defaulting revenue officers. Sec. 1868. Sheriff to account for such moneys in like man- ner as clerks. K. C, c. 73, s. 5. 1823, c. 1186, s. 6. 1831, c. 3, ss. 1, 2. Every sheriff, at the same time and in like manner as is required of clerks, shall render and publish an account of moneys vs^hich may have been in his hands for the period of one year, and account for and pay the same to the receiver of county funds, under the same penalties for default, and recoverable in like manner, as are pro- vided in respect of said clerks. Sec. 1869. Moneys may be used by the public until called for by owners. K. C, c. 73, s. 6. 1828, c. 41, s. 1. The money aforesaid, while held by the clerks and sheriffs, shall be paid on application, to the persons enti- tled thereto; and after it shall cease to be so held, it may be used as other revenue, subject, however, to the claim of the rightful owner. Chap. 45.] OFFICES. 709 CHAPTER FORTY-FIVE, OFFICES. Section. 1870. No person to hold office con- trary to the constitution. 1871. Contracts for tlie purchase or sale of an office, void. 1873. Persons liolding office to be deemed as doing so lawfully, Section. and shall hold until their suc- cessors have qualified. 1873. All officers to take the oaths before acting; penalty five hundred dollars and ejection from office. Sec. 1870. No person to hold office contrary to the con- stitution. K. C, c. 77, s. 1. K. S., c. 80, .s. 1. 1790, c. 319. 1792, c. 366. 1793, c. 393. 1796, c. 4=50. 1811, c. 811. If any person shall presume to hold any office, or place of trust or profit, or be elected to a seat in either house of the general assembly, contrary to the seventh section of the fourteenth article of the constitution of the state, he shall forfeit and pay two hundred dollars to any per- son who will sue for the same. Worthy v. Barrett, 63—199. Sec. 1871. Contracts for the purchase or sale of office void. K. C.,c. 77, s. 2. 5 and 6 Edw. VI., c. 16, s. 3. All bargains, bonds, and assurances, made or given for the purchase or sale of any office whatsoever, the sale of which is contrary to law, shall be void. Sec. 1872. Persons holding office to be deemed as doing so lawfully, and shall hold until their successors have qualified. B. C, c. 77, s. 3. 1844, c. 38, s. 2. 1848, c. 64, s. 1. Const., Art. IV, s. 25. Any person who shall, by the proper authority, be ad- mitted and sworn into any office, shall be held, deemed, and taken, by force of such admission, to be rightfully in such office, until, by judicial sentence, upon a proper proceeding, he shall be ousted therefrom, or his admission thereto be, in due course of law, declared void; and all officers shall continue in their respective offices, tmtil their successors shall have been elected or appointed, and shall have been duly qualified. Threadgill v. R. R. Co., 73—178; State v. Long, 70-354; Worley v. Smith, 81—304; King v. McLure, 84—153. no OFFICIAL BONDS. [Chap. 46. Sec. 1873. All officers to take the oath before actiiig; penalty $500, and ejection from office. R. C, c. 77,' s. 4. Every officer and other person who may be required to take an oath of office, or an oath for the faithful dis- charge of any duty imposed on him, and also for the oath appointed for such as hold any office of trust or profit in the state, shall take all said oaths, before enter- ing on the duties of the office, or the duties imposed on such person, on pain of forfeiting five hundred dollars to the use of the poor of the county, in or for vi^hich the office is to be used, and of being ejected from his office or place by proper pi-oceedings for that purpose. Worthy v. Barrett, 6S— 199; Moore v. Bondinot, 64—191- State v Cans- ler, 75—442. CHAPTEE FORTY-SIX. OPFIOIAL BONDS. Section. 1874. Official bonds to be renewed annually. 1875. Vacancy on failure to renew bonds. 1876. Surety on official bonds to jus- tify. 1877. Approval, execution and cus- tody of official bonds. 1878. Clerk to record yeas and nays of commissioners voting on approval of official bonds. 1879. Commissioners liable as surety, when. 1880. Commissioners also liable to indiclment. 1881. Record of the board conclu- sive evidence of the facts stated therein. 1882. Penalty on officers acting with- out giving bond. 1883. Suits on official bonds. 1884. Complaint must show in whose behalf suit brought. | Section. 1885. When official bond insufficient; judge may require a good one to be given. 1886. Appointee to give bond. 1887. When vacancy declared, judge shall file statement of his pro- ceeding with clerk of board of commissioners; commissioners not to be surety on official bonds. 1888. Sheriff, or other officer, liable for whole debt, in case of negligence. 1889. Summary remedy on official bond in superior court. 1890. Damages of twelve per cent, against officers on money un- lawfully detained. 1891. Irregularity in taking, or in the form of bonds, not to in- validate them. Chap. 46.] OFFICIAL BONDS. Yll Sec. 1874. Official bonds to be renewed annually. 1869- '70, c. 169, s. 1. 1876-'7, c. 276, s. 5. Every clerk, treasurer, sheriff, coroner, register of deeds, surveyor, and every other officer of the several counties who is required by law to give a bond for the faithful performance of the duties of his office, shall reg- ularly renew his official bond before the board of com- missioners of the county who shall approve the same, on the first Monday of December of each year; but nothmg herein shall be deemed to modify or repeal any provision of law whereby the commisioners are empowered at any time to require the sheriff, county treasurer, or other officer, to renew or justify his bonds. Fagan v. "WilliamsoD, 8 Jon., 433; Fell v. Porter, 69—140; Worley v Smith, 81—304; Kilburn v. Latham, 81—312. Sec. 1875. Vacancy on failure to renew bond. 1869-'70, c. 169, s. 2. Upon the failure of any such officer to make such reg- ular annual renewal of his bond, it is the duty of the board of commissioners, by an order to be entered of record to declare his office vacant, and to proceed forth with to appoint a successor; if the power of fiUing the vacancy in the particular case be vested in the board of commissioners; but if otherwise, the said board shall im- mediately inform the proper person having the power of appointment of the fact of such vacancy. 68—255; Vann v. Pipkin, 77—408; Worley v. Smith, 81—304. Sec. 1876. Surety on official bonds to justify. 1869-'70, c. 169, s. 3. 1879, c. 307, s. 1. Every surety on an official bond required by law to be taken or renewed and approved by the board of commis- sioners, shall take and subscribe an oath before the chair- man of the board or before the clerk of the superior court, that he is worth a certain sum (which shall be not less than one thousand dollars) over and above all his debts and liabilities and his homestead and personal prop- erty exemptions, and the sum thus sworn to shall in no case be less in the aggregate than the penalty of the bond. Sec. 1877. Approval, execution and custody of official bonds. 1869-'70, c. 169, s. 4. 1879, c. 207, s. 2. The approval of all official bonds taken or renew^ed by the board of commissioner? shall be recorded by their clerk. Every such bond shall be acknowledged by the 712 OFFICIAL BONDS. [Chap. 46. parties thereto or proved by a subscribing witness, before the chairmau of the board of commissioners, or before the clerk of the superior court, registered in the register's office in a separate book to be kept for the registration of official bonds, and the original bond, with the approval of the commissioners indorsed thereon and certihed by their chairman, shall be deposited with the clerk of the supei-ior court, except the bond of said clerk, which shall be deposited with the register of deeds for safe keeping. Cox V. Blair, 76—78. Sec. 1878. Clerk to record yeas and nays of commission- ers voting on approval of official bonds. 1869-'70, c. 169, s. 5. R. C, c. 78, s. 7. 1790,0.327. 1809,c. 777. It is the duty of the clei-k of the board of commission- ers to record in the proceedings of the board the names of those commissioners who are present at the time of the approval of any official bond, and who shall vote for such approval, and every clerk neglecting to make such record is guilty of a misdemeanor and beside other pun- ishment shall forfeit his office. Sec. 1879. Commissioner's liability as surety, when. 1869-'70, c. 109, s. C. Every commissioner who approves an official bond, which he knows or believes to be insufficient in the penal sum, or in the security thereof, shall be hable as if he were a surety thereto, and may be sued accordingly by any person having a cause of action on said bond. Sec. 1880. Commissioner also liable to indictment. 1869- '70, c. 169, s. 7. Every commissioner hable as in the last section prescribed shall be moreover liable to a criminal ac- tion, and, on conviction, shall be removed from office and forever disqualilied from holding or enjoying any office of honor, trust or profit under the state. Sec. 1881. Record of the board conclusive evidence of the facts stated therein. 1869-'70, c. 169, s. 8. In all actions under the two preceding sections, a copy of the proceedings of the board of commissioners in the particular case, certified by their clerk under his hand and seal of the county, shall be conclusive evidence of the facts in such record alleged and set forth, but any commissioner may cause his written dissent to be entered on the records of the board. I Chap. 46.] OFFICIAL BONDS. 713 Sec. 1883. Penalty on officers acting without giving bond. 1869-'70, c. 169, s. 9. K. C, c. 78, s. 8. Every person or officer of whom an official bond is required, vrho shall presume to discharge any duty of his office before executing such bond in the manner pre- scribed by law, is liable to a forfeiture of five hundred dollars to the use of the state for each attempt so to exercise his office, and is moreover hable to a crimmal action, and upon conviction shall be ejected from office and be forever disquahfied from holding or enjoymg any office of honor, trust or profit under this state. State V. McEntyre, 3 Ired., 171; Burke v. Elliott, 41red.,355; Gillinm V. Eeddick, 4 Ired., 368; Mabry v. Tunentine, Sired., 201; Hoell v. Cobb, 4 Jon., 258. Sec. 1883. Suits on official bonds. R. C, c. 78, s. 1. 1 793, c. 384, s. 1. 1833, c. 17. 1835, c. 1336. 1869-'70, c. 169, s. lO. Every person injured by the neglect, misconduct, mis- behavior in office of any clerk of the superior court, reg- ister, entry-taker, surveyor, sheriff, coroner, constable, county treasurer, or other officer may institute a suit or suits against said officer or any of them and their sureties upon their respective bonds for the due performance of their duties in office in the name of the state, without any assignment thereof ; and no such bond shall become void upon the first recovery, or if judgment shall be given for the defendant, but may be put in suit and prosecuted from time to time until the whole penalty shall be recov- ered, and every such officer, and the sureties on his offi- cial bond, shall be liable to the person injured for all acts done by said officer by virtue or under color of his office. Guess V. Bnrbee, 6 Ired., 279; Robeson County v. McAlpin, 6 Ired.. 347; Miller V. Davis, 7 Ired., 198; Pool v. Cox, 9 Ired., 69; Boger v. Brad- shaw, 10 Ired.. 239; Fagan v. Williams, 8 Jon., 433; Fell v. Porter, 69— 140; 75—347; Havens v. Lathene, 75—505; Cox v. Blair, 76—78; Vann V. Pipkin, 77—408; 78—174, 181; City of Wilmington v. Nutt, 80—365 Sec. 1884. Complaint must show in whose behalf suit brought. K.C.,c. 78, s. 3. 1793, c. 384, ss. 3,3. 1869- '70, c. 169, s. 11. Any person who may bring suit in manner aforesaid shall state in his complaint on whose relation and in whose behalf the suit is brought, and he shall be entitled to re- ceive to his own use the money recovered, hut nothing herein contained shall prevent such person from bringing 714 OFFICIAL BONDS. [Chap. 46. at his election an action against the officer to recover spe- cial damages for his injury. Fagan v. Williams, 8 Jon., 433. Sec. 1885. When official bond insufficient, judge may re- quire a good one to be given. 1874-'5, c. 120, s. 1. Whenever oath shall be made before any judge of the superior court by five respectable citizens of any county within his district that after diligent inquiry made they verily beheve that the bond of any officer of such county, which has been accepted by the board of commissioners, is insufficient either in the amount of the penalty or in the ability of the sureties, it shall be the duty of such judge to cause a notice to be served upon such officer requiring him to appear at some stated time and place and justify his bond by evidence other than that of himself or his sure- ties._ And if this evidence so produced shall fail to satisfy the judge that the bond is sufficient, both in amount and the ability of the sm-eties, he shall give time to the officer, not exceeding twenty days, to give another bond, the judge fixing the amount of the new bond, when there is a deficiency in that particular. And upon failure to give a good bond to the satisfaction of the' judge within the twenty days, he shall declare the office vacant, and if the appointment be with himself, he shall immediately pro- ceed to fill the vacancy ; and if not, he shall notify the persons having the appointing power, that they may pro- ceed as aforesaid. Mitchell V. Kilburn, 74—483; Mitchell v. Hubbs, 74—484; Mitchell v. West, 74—485. Sec. 1886. Appointee to give bond. 1874-'5, c. 120, s. 2. The person so appointed shall give bond before the judge, and the bond so given shall in all respects be sub- ject to the requirements of the law in relation to official bonds; and all official bonds shall be considered debts and habilities. Sec. 1887. When vacancy declared, judge shall file state- ment of his proceeding with clerk of commissioners; commissioner not to be surety on official bond. 1874- '6, c. 120, s. 3. Whenever a vacancy shall be declared by the judge, be shall file a written statement of aU his proceedings with the clerk of the board of commissioners, to be re- corded by him. No member of the board of commission- ers, or any other person authoi-ized to take ofiicial bonds Chap. 46.] OFFICIAL BONDS. 715 of any county, shall sign as surety on any ofificial bond, upon the sufficiency of which the board, of which he is a member, may have to pass. Sec. 1888. SUeriflF, or other officer, liable for whole debt, in case of negligence. K. C, c. 78, s. 3. 1844, c. 64. 1869-'70, c. 169, s. 12. When a claim shall be placed in the hands of any sheriff, coroner or constable for collection, and he shall not use due diligence in collecting the same, he shall be liable for the full amount of the claim notwithstanding the debtor may have been at all times and is then able to pay the amount thereof. Williams V. Williamson, 6 Ired., 281; Hubbard v. Wall, 9Ired., 20; Nixon v. Bagby, 7 Jon., 5; McLaurin v. Buchanan, Winst. L., 93; Lipscomb v. Cheeli, Pliil., 333. Sec. 1889. Summary i-emedy on official bond in superior court. R. C, c. 78, s. 5. 1819, c. 1002, s. 1. 1869- '70, c. 169, s. 14. 1876-'7, c. 41, s. 2. Whenever a sheriff, coroner, constable, clerk, county or town treasurer, or other officer, shall have collected or received any money by virtue or under color of his office, and on demand shall fail to pay the same to the person entitled to require the payment thereof, the person there- by aggrieved may move for judgment in the superior court against such officer and his sureties for any sum demanded; and the court shall try the same and render judgment at the term when the motion shall be made, but ten days' notice in writing of the motion must have been previously given. State Bank v. Davenport, 2 D. & B., 45; Guess v. Barbee, 6 Ired., 379; Martin v. Long-, 8 Ired., 415; Ellis v. Long, 8 Ired., 513; Buttsv. Brown, 11 Ired., 141; O'Leary v. Harrison, 6 Jon., 338; Brougblon v. Haywood. Pbil., 380; Fell v. Porter, 09—140; State ex rel. Bryan v. Rousseau & Brown, 71 —194; Cooper v. Williams, 75—94; Smith v. Moore. 79—83; Curtis' Heirs, ex parte, 82—435; Wall v. Covington. 83—144; Kerr v. Brandon, 84—128. Sec. 1890. Damages of twelve per cent, against officers on money unlawfully detained. K. C, c. 78, s. 9. 1819, c. 1002, s. 2. 18G9-'70, c. 109, s. 15. Whenever money received as aforesaid shall be unlaw- fully detained by any of said officers, and the same shall be sued for in any mode whatevei*, the plaintiff shall be entitled to recover, besides the sum detained, damages at the rate of twelve per centum j^er annum from the time of detention until payment. Broughton v. Haywood, Phil., 380. 716 PAETITION. [Chap, 47 Sec. 1891. Irregriilarity in taking or in the form of bonds, not to invalidate them. R. C, c. 78, s. 9. 1842 c Ol 1869-'70, c. 1G9, s. 2. ' ' Whenever any instrument shall be taken by or received under the sanction of the board of county commission- ers, or by any person or persons acting under or in virtue of any public authority, purportmg to be a bond execut- ed to the state for the performance of any duty belonging to any office or appointment, such instrument, notwith- standmg any irregularity or invahdity in the conferring of the office or making of the appointment, or any vari- ance m the penalty or condition of the instrument from the provision prescribed by law, shall be valid and may be put in suit in the name of the state for the benefit of the pei-son injured by a breach of the condition thereof, in the same manner as if the office had been duly con- ferred or the appointment duly made, and as if the penalty and condition of the instrument had conformed to the provisions of law: Provided, that no action shall be sustained thereon because of a breach of any condition thereof or any part of the condition thereof which is contrary to law. Jordan v. Pool, 5 Ircd., 105; Merrill v. McMinn. 7 Ircd., 344; Murray v. Jones, 7 Ired., 359; Hoell v. Cobb, 4 Jou., 208; Hunter v. Roulledgc, CJon., 216; Grier v. Hill, C Jon., .'573; Sliipman v. McMinn, TVinst. L., I22': Barnes v. Lewis, 73—138; Prairie v. Jenkins, 75—545; Greensboro' v. Scott, 84—184; Ccm'rs v. Magnin, 86—285. CHAPTEE FOETY-SEVEN. PARTITION. Section. 1892. Appointment of commission- er.?. 1893. Oath of commissioners. 1894. Duty of comn)issi(>iier.s. 1895. May employ a surveyor. 1890. Kcport of commissioners. 1897. Decree of confirmation, effect of. 1898. Where land lies in several counties. Section. 1899. Sums to bear interest. 1900. Sumschargcd on minors, when payable. 1901. Compensation of cominis.sion- ers; jienalty. 1902. Costs, how paid. 1903. Saleof real estate; application, how made. 1904 When sale to be ordered, and terms. Chap. 47.] PAETITION. 717 Section. 1905. Notice of sale. 1906. Who aulhorizcd to sell. 1907. Lands required to be sold for public purposes; procedure. 1908. Proceeds to be secured to cer- tain persons. 1909. Dower may be apportioned. 1910. Compensation of person ap- pointed to sell. 1911. Proceedings when lands lie partly in this state and partly in another. 1912. Court may decree partition. 1913. Commissioners to be appoint- ed, their duty; final decree; court shall compel parties to execute and deliver deeds; when court to declare decree conclusive. Section. 1914. Decree for partition in another state, when enforced in Ihis. 1915. Judge to decide in reference to law passed by anotlier state. 1916. Pay of commissioners. 1917. Partition of personal property, how made. 1918. Confirmation of report. 1919. When sale ordered. 1920. Notice of sale, &c. 1921. Confirmation and effect of deed. 1933. Compensation of commission- ers. Procedure as in special pro- ceedings. 1933. Sec. 1892. Appointment of commissioners. 1868-'9, c. 122, s. 1. The superior courts on petition of one or more persons claiming real estate as tenants in common, shall appoint three disinterested commissioners to divide and apportion such real estate, or so much thereof as the court may deem best, among the several tenants in common. Maxwell V. Maxwell, 8 Ired. Eq., 25; Holmes v. Holmes, 3 Jon. Eq., 334; Watson v. Watson, 3 Jon. Eq., 400; Purvis v. Purvis, 5 Jon., 22; Hinton V. Whitehurst, G8— 316; Gregory v. Gregory, 69—532; Hiuton v. Whitehurst, 71—68; Collins ex parte, 71—336; Keener v. Den, 73—133; Covington v. Covington, 73—168; Hinton v. Whitehurst, 73—157; Mc- Brydc v. Patterson, 73—478; Williams v. Hassell, 74 — 434; Medlin v. Steele, 75—154; Hinton v. Wliilehurst, 75—178; McEachern v. Gilchrist, 75—196; Parks V. Siler, 76— 191 ; Justice v. Guion, 76—443; Neely v. Neely, 79— 478; Bell v. Adams, 81—118; Wahab v. Smith, 83—229; Pope v. Matthis, 83—169; Simpson v. Wallace, 83—477; Kelly v. McCallum, 83—563; Finch V. Baskerville, 85—205; Capps v. Capps, 85—408; K. C, c. 83, cases there cited. Sec. 1893. Oath of commissioners. 1868-'9, c. 122, s. 2. The commissioners shall be sworn by a justice of the peace, or otiier person authorized to administer oaths, to do justice among the tenants in common, in respect to such partition, according to their best skUl and ability. 718 PARTITION. [Chap. 47. Sec. 1894. Duty of commissioners. 1868-'0, c. 122 s. 3. The commissioners, who shall be summoned by the sheriff, or any constable, must meet on the premises and partition the same among the tenants in common, ac- cordmg to their respective rights and interests therein by dividing the land into equal shares in point of value as nearly as possible, and for this purpose they are em- powered to sub-divide the more valuable tracts as they may deem best, and to charge the more valuable divi- dends with such sums of money as they may think nec- essary, to be paid to the dividends of inferior value in order to make an equitable partition. ' "Wynne V. Tunstall, 1 Dev. Ecj., 23; Samuel v. Zachery, 4 lied., 377- Twitty V. Camp, Pliil. Eq., 61; Pope v. Whitebead, 68—191; Pull'en v.' Heron Mining Co., 71—563; Collett v. Henderson, 80—337; Waring v. Wadswoith, 80—34.5; Simmons v. Foscue, 81—86; Halso v. Cole, 83—161! Sec. 1895. May employ a surveyor. 1868-'9, c. 123, s. 4. The commissioners are authorized to employ the county surveyor, or in his absence, or if he be connected with the parties, some other surveyor, who shall make out a map of the premises showing the quantity, courses and dis- tances of each share, which map shall accompany and form a part of the report of the commissioners. See. 1896. Report of commissioners. 1868-'9, c, 122 s. 5. The commissioners, within a reasonable time, not ex- ceeding sixty days after the notification of their appoint- ment, shall make a full and ample report of their proceedings, under the hands of any two of them, specifying therein the manner of executing their trust and describing particularly the land or parcels of land divided, and the share allotted to each tenant in severalty, with the sum or sums chai-ged on the more valuable dividends to be paid to those of inferior value. The report shall be filed in the office of the superior court clerk, and if no exception thereto be filed within twenty days, the same shall be confirmed: Provided, that any party after confirmation may impeach the proceedings and decrees for mistake, fraud or collusion, by petition in the cause: Provided, further, that innocent purcha- sers for full value and without notice shall not be affected thereby. Nicelar v. Barhrick, 1 D. & B., 257; Ashbee v. Cowoll, Busb. Eq., 158; Boat ex parte, 3 Jon. Eq., 4S2; Archibald v. Davis, 4 Jon., 133; In the matter of Yates, 6 Jon. Eq., 806; Baird v. Baird, Phil. Eq., 817; Wood v. Chap. 47.] PARTITION. 719 Parker. 63—379; Ruffln v. Cox, 71—253; University v. N. C. Railroud, 76—103; Blue v. Blue, 79—69; Pritcliard v. Askew, 80— 86; Waring v. Wad^worth, 80—345; Simmons v. Foscue. 81—86; White a: parte, 82—877; Alexander v. Robinson, 85 — 275; Thompson v. Peebles. 85 — 418; Turpin V. Kelly, 85—399. Sec. 1897. Decree of confirmation, eflfect of. 1868-'9, c. 122, s. 6. Such report when confirmed, together with the decree of confirmation, shall be enrolled and certified to the register, and registered in the office of the county where such real estate is situated, and shall be binding among and between the claimants, their heirs and assigns. Mills V. Witherington, 2 D. & B., 433; Stewart v. Mizell. 8 Ired. Eq., 242; Wright v. McCormick, 69—14; Wright v. McCormick, 77—158; Latta V. Vickers, 82—501: Cheatham v. Crews, 83—313; Ivey v. McKinnon, 84—651. Sec. 1898. Where land lies in several counties. 1868-'9, c. 122, s. 7. In cases where the real estate lies in several counties, the petition may be exhibited in the superior court of any one of such counties, in which a part thereof is situated. Sec. 1899. Sums to bear interest. 1868-'9, c. 122, s. 8. The sums of money due from the more valuable dividends shall bear interest mitil paid. Turpin v. Kelly, 85—899. Sec. 1900. Sums charged on minors, when payable. 1868-'9, c. 122, s. 9. When a minor to whom a more valuable dividend shall fall is charged with the payment of any sum the money shall not be payable until such minor ai'rivesat the age of twenty-one yeai's, but the general guardian, if there be one, must pay such sum whenever assets shall come into his hands, and in case the general guardian shall have assets which he did not so apply, he shall pay out of his own proper estate any interest that may have accrued in consequence of such failure. Jones V. Cameron, 81—154; Turpin v. Kelly, 85—899. Sec. 1901. Compensation of commissioners; penalty. 1868-'9, c. 122, s. 10. The commissioners shall be allowed, each of them, the sum of one dollar j3er diem for their services, and if. after 'i'20 PARTITION. [Chap. 47. accepting the trust, they or any of them unreasonably delay or neglect to execute the same, every such delin- quent commissioner shall be liable to the penalty of fifty dollars, to be recovered by action by the petitioners. Sec. 1902. Costs, how paid. 1868-'9, c. 122, s. 11. The compensation of the commissioners, allowances to parties, the expenses incurred for surveying, and all fees and costs of the proceeding shall be paid as the court may direct. Sec, 1903. Sale of real estate, application, how made. 1868-'9, c. 122, s. 12. AppHcation for the sale of real estate held in common may be made by petition preferred in the superior court of the county where such real estate or some part thereof lies, by one or more of the parties interested therein. Holmes V. Holmes, 2 Jon. Eq., 334; Gregory v. Gregoiy, G9— 522; Kee- ner v. Dtn, 73— 132; Allen V. Chappell, 78—238; Tmll v. Rice, 85—827: Capps V. Capps, 85 — 408. Sec. 1904. When sale to be ordered, and terms. 1868-'9, c. 122, s. 13. Whenever it appears by satisfactory proof that an actual partition of the lands cannot be made without injury to some or all of tiie parties interested, the court shall order a sale of the property described in the petition, or any part thei'eof, on such terms as to size of lots, place or manner of sale, time of credit and security for payment of purchase money, as may be most advantageous to the parties concerned, and, on the coming in of the report of sale and confirmation thereof, and payment of the pur- chase money, the title shall be made to the purchaser or purchasers at such time and by such person as the court may direct, and in all cases where the persons in posses- sion have been made parties to the proceeding, the court may grant an order for possession. Stewart v. Mizell, 8 Ired. Eq., 242; Long v. Holt, 68— 53; Gregory v. Gregory. 09-522; McBryde v. Patterson, 73—478; Williams v. Hassell, 74^-434; Parks v. Slier, 7G— 191; Jones v. Hemphill, 77— 42; Brandon v. Phelps, 77—44; Lord v. Beard, 79—5; Lord v. Meroncy, 79—14; Iloff v. Grafton, 79—592; Burgin v. Burgin, 82—196; Macay ex parte, 84—59; Trull V. Rice, 85—327; Kemp v. Kemp, 85—491. Sec. 1906. Notice of sale. 1868-'9, c. 122, s. 14. The notice of sale, under this proceeding, shall be the same as required by law on sales of real estate by sheriffs on execution. ■ Chap. 47.] PARTITION. 721 Sec. 1906. Who authorized to sell. 1868-'9, c. 122, s. 15. The court may authorize any officer thereof, or any other competent person, to be designated in the decree of sale, to sell the real estate under this proceeding. Such officer or person shall file his report of sale, giving full particulars thereof, within ten days after the sale in the office of the clerk of the superior court, and if no excep- tion thereto is filed within twenty days, the same shall be confirmed: Provided, that any party, after the confirma- tion, shall be allowed to impeach the proceedings and decrees for mistake, fraud or collusion, by petition in the cause: Provided, further, that innocent purchasers for full value and without notice shall not be aft'ected thereby. The Judges v. Deans, 2 Hawks, 93; McNeil v. Morrison, 63—508; Havens v. Lathene, 75—505; Cox v. Blair, 76—78; Kerr v. Brandon, 84^ 138; McLean v. Patterson, 84—427. See. 1907. L,ands required to be sold for public purposes; procedure. 1868-'9, c. 122, s. 16. When the lands of joint tenants or tenants in common are required for public purposes, one or more of such tenants, or their guardian for them, may file a petition verified by oath, in the superior court of the county where the lands, or any part of them lie, setting forth therein that the lands are required for public purposes, and that their interests would be promoted by a sale thereof; whereupon the court, all proper parties being before it, and the facts alleged in the petition being ascertained to be true, shall order a sale of such lands, or so much thereof as may be necessary, in the manner and on the terms it deems expedient. And the expenses, fees and costs of this proceeding shall be paid in the discretion of the court. Sec. 1908. Proceeds to be secured to certain persons. R. C, c. 82, s. 7. 1868-'9, c. 122, s. 17. When a sale is made under this chapter, and any party to the proceedings be an infant, a married woman, non compos mentis, imprisoned, or beyond the limits of the state, it shall be the duty of the court to decree the share of such party, in the proceeds of sale, to be so invested or settled that the same may be secured to such party or his real representative. Scull V. Jernigan, 3 D. & B. Eq., 144; Gillespie v. Foy, 5 Ired. Eq., 380; Dudley V. Winfield, Busb. Eq., 91; Bateman v. Latham, 3 Jon. Eq., 35; Jones V. Edwards, 8 Jon., 336; Allison v. Robinson, 78—232; Hall v. Short, 81—273; Burein v. Burgin, 82—196. "31 V23 PARTITION. [Chap. 47. Sec. 1909. Dower may be apportioned. 1868-'9, c. 123, s. 18. When there is dower or right of dower on an}' land, petitioned to be sold under this chapter, the woman en- titled to dower or right of dower tlierein, may join in the petition; and on a decree of sale, the interest of one-thiid of the proceeds shall be secured and paid to her annually; or in lieu of such annual interest, the value of an annu- ity of six per cent, on such third, during her probable life, shall be ascertained and paid out of the proceeds to her absolutely. Sec. 1910. Compensatioa of person ajrpointed to sell. 1868-'9, c. 132, s. 19. In sales of real estate under this chapter, the allowance for services, in making sale and title, to the officer or per- son appointed to sell, shall be as follows: For sales of five hundred dollars or less, not more than ten dollars; for sales of two thousand and not less tlian five hundred dollars, not more than two per centum; and, when the allowance shall amount to forty dollars, any additional compensation shall not exceed the rate of one per centum. Sec. 1911. Proceedings, when lands lie partly in this state and partly in another. 1808-'9, c. 133, s. 30. Whenever on the death of any person, his lands in this state, and in another state, shall descend or be devised to several persons, who, by the law of this and the other state, shall hold, in the lands, undivided estates as ten- ants in common, or by any other undivided tenancy, and suchheii-s or devisees cannot, without suit, have partition for want of consent, or because of inability in any of the co-tenants, then, if such deceased person shall have been at the time of his death, a resident of the state, or not then a resident of any of the states, in which liis lands lie, and in the last case the most valuable ])art of such lands shall lie in this stnte, such heir or devisee, or any ]>erson claiming under him, may file a petition in the superior court for the county where the deceased resided at his death, or where any part of the land lies in this state, setting forth all the lauds in which the plaintiff has an undivided estate, without and within the state, de- scribed by their names and boundaries, or by the adjoin- ing tracts, and also the estate the deceased had in them, and the supposed value of the lands in each state, aiid the share, in severalty, to which the plaintiff and each Chap. 4T.] PAETITION. 723 of his co-tenants is entitled under the laws of the sev- eral states, and praying for paitition to be made of all the tracts, according to their respective interests, and the material facts set forth in the petition shall be verified by the affidavit of the plaintiff or his guardian, or other per- son, at the discretion of the court; and all persons con- cerned in interest in the lands shall be made parties, ac- cording to the practice of the superior couit in this state. Sec. 1912. Court may decree partition. 1868-'9, c. 132, s. 31. On the hearing of the petition, the court may decree a partition; and shall allot in severalty to each tenant his just share of the lands, according to the value of his inter- est in the same, by the laws of the several states, in which they are situated. Sec. 1913. Commissioners to be appointed, their duty; final decree; court sliall compel parties to execute and deliver deeds; when court to declare decree conclu- sive. 1868-'9, c. 123, s. 33. The court making such decree shall issue a commission to three respectable freeholders in this or any state where any part of the land may lie, unconnected by blood or interest with the parties, directing them or a majority of them, to make partition between the co-tenants, plain- tiffs and defendants in said petition, and to assign each his respective share in the value, in severalty, in any tract or tracts, in any or all the states; and before mak- ing the allotment the commissioners shall make a valua- tion of all the lands held by the co-tenants in all the said states; and where they cannot, without injury to the value of some shares, make an exact division of the lands, they shall charge the more valuable dividends with money to be paid to the tenants of a less valuable dividend to make equality of partition, and they shall report their proceedings as they may be directed, and the report shall contain a val uation of all the estate in this and the other states, and the division among the co-ten- ants according to such valuation; and the court may con- firm such report, or on sufficient cause shown, may cor- rect and alter, or set it aside and order a new commission; and where any sum is charged upon a more valuable dividend, the court may direct, if the tenant taking such a dividend be an infant, that the sum charged shall not be paid till a future day, and the same shall bear inter- est at a rate not greater than allowed in this state: Pro- 724 PARTITION. [Chap. 47. vided, that the tenant of the larger dividend may dis- charge himself from accruing interest by paymg the whole amount due at any time; and the sum due from the greater dividend shall be a charge on the land into whose hands soever it may come, although it may be taken without notice; and the court shall, upon the confirmation of any report of the commissioners, make a final decree. And where all the parties are within the jurisdiction of this court the court shall, by the usual proceedings, direct and compel the parties to execute and deliver deeds and assurances, sufficient, by the laws of this state and the other states, to give the partition full force and validity in all the states; and in case any of the par- ties are under such disabilities that they cannot execute such assurances, or are without the jurisdiction of the court, then the court, upon receiving evidence from the plaintiff, that, by a law of the other state in which he the parts of the lands described in the petition to be with- out this state, the decree can have effect thereon, shaE direct the decree to be enrolled, and a copy of it shall be registered in the register's office of all the counties within this state, where any of the lands lie; and a copy shall also be furnished to the plaintiflf or other party in- terested, duly certified, to the end that, as to the lands without this state, it mav be carried into effect in the state in which the said lands may be, in such manner as said state may direct; and on satisfactory evidence being made to the court in this state that the decree may have full effect by the law of such other state, the court in this state shall by its decree declare the partition in the land in this state to be final and conclusive; and the de- cree shall be firm and irreversible, as hereinafter pro- vided; and shall, on registration as aforesaid, pass to the tenants the title in severalty to the lands in this state, in the same manner as if all the lands mentioned in the decree were situate within this state. Sec. 1914. Decree for partition in another state when enforced in this state. l»68-'9, c. 123, s. 23. Where real estate may be partly in this state and partly in another state, and the deceased person from whoni it was derived by descent or devise, was, at the time of his death, a resident of some other state, or was a resident of none of the states in which he held lands, and m this last case, the lands of which he was seized in this state were of less value than the lands of which he was seized in any other state, the courts of the state in which such Chap. 47.] PARTITION. 72S deceased person had his residence at his death, or in which he held lands of greater value than those he held in this state shall have full power and authority, under any law passed by the legislature of such state, substan- tially in accordance with the provisions herein made on this subject, to decree partition of the lands in this state, together with those within such other state, in the same manner as if the whole real estate were within the juris- diction of such court, and in the same manner as the courts in this state are directed and authorized to do by the preceding section, as to the lands of deceased persons resident here at their death, or having lands of greater value here than in any other state ; and in case any person having an interest in the final decree, made as aforesaid in another state, as to lands in this state, shall, within twelve months after the same may be entered up in the courts of said state, produce the records and pro- ceedings of such courts of record duly certified to a superior court of any county in this state, where any of the lands of this state lie, the court, on petition ex parte in such case, shall order such proceedings to be entered of record in the court of this state, and order that the said decree shall be of the same force and validity as if it had been a decree of the court in this state in which the petition is filed, upon a petition and regular proceedings had thereon, and the decree of the court of such other state, and the proceedings on it by petition in the superior court in this state confirming it and giving it validity, being enrolled in the said court of this state and registered in all the counties where the lands lie in this state, shall pass the lands in this state according to the decree, and shall vest estates in seveialty therein declared, as to said landSjinthe same manner and with the same efi'ect in law, as if the lands in this state had been so allotted on a petition for partition, according to the provisions of the former sections of this chapter. Sec. 1915. Judge to decide in reference to law passed by another state. 1868-'9, c. 122, s. 24. Where a copy of a decree and proceedings of a suit in any other state shall be produced, as in the preceding- section, and also when it is necessary for a superior court to be certified that its decree of a partition of lands with- out this state and within the territory of another state, can have effect therein, it shall be competent for the judge of the superior court before which the existence of a law in such other state is to be proved, to decide T26 PARTITION. [Chap. 47. whether any act of the legislature of such state has been passed. Sec. 1916. Pay of commissioners. 1868-'9, c. 122, s. 26. The commissioners appointed to divide lands lying in this and another state, shall be entitled to three dollars per day for their services; which, Avith all fees, expenses and costs, shall be paid as tlie court may direct. Sec. 1917. Partition of personal property, how made. 1868-'9, c, 122, s. 27. When any persons entitled as tenants in common of personal property, desire to have a division of the same, they, or either of them, may file a petition in the superior court for that purpose; and the court, if it think the petitioners entitled to relief, shall appoint three disin- terested commissioners, who, being first duly sworn, shall proceed within twenty days after notice of their appointment, to divide such property as nearly equal as possible among the tenants in common. Powell V. Hill, 64^169; Grim v. Wicker, 80—343. Sec. 1918. Confirmation of report. 1868-'9, c. 122, s. 28. The commissioners shall report their proceedings under the hands of any two of them, and file their report in the office of the clerk of the superior court within five days after the partition was made, and if no exception thereto be filed within twenty days, the same shall be confirmed: Provided, that any party, after confirmation, shall be allowed to impeach the proceedings and decrees for mis- take, fraud or collusion, by petition in the cause: Pro- vided, further, that innocent purchasers for full value and without notice shall not be affected thereby Sec. 1919. When sale ordered. 1868-'9, c. 122, s. 29. If a division of such personal property cannot be had without injuiy to some of the pai-ties interested, and a sale thereof be deemed necessary, the court shall order a sale to be made by some officer of the court or other com- petent person; who shall file his report of sale in the office of the clerk of the court within ten days after sale, and if no exception thereto be filed within twenty days, the same shall be confirmed: Provided, that any party, after confirmation, shall be allowed to impeach the proceedings and decrees for mistake, fraud or collusion, by petition in the cause: Provided, further, that innocent purchasers Chap. 47.] PARTITION. T27 for full value and without notice shall not be affected thereby. Power V. Hill, 64—169; Miller v. Feezor, 82—193; Kerrv. Brandon, 84— 128. Sec. 1920. Notice of sale, &c. 1868-'9, c. 123, s. 30. The sale shall be made after twenty days' notice, by advertisement in three or more public places m the county, and shall be on such terms as the court may direct. Sec. 1921. Confirmation and effect of deed. 1808-'9, c. 122, s. 31. Upon confirmation of the report, the court shall secure to each tenant in common his ratable share in severalty of the proceeds of sale; and the deed of the officer or person appointed to sell, when such deed is directed to be made, shall convey to the purchaser such title and estate in the property as the tenants in common had. Sec. 1923. Compensation of commissioners. 18C8-'9, c. 122, s. 32. The commissioners nominated to make a division, and the officer or person appointed to make a sale of personal property held in common, shall receive for their services a sum to be fixed by the court and taxed in the bill of fees and costs, all of which shall be paid by the parties in such manner as the court may decree. Sec. 1923. Procedure as in special proceedings. 1868-'9, c. 122, s. 33. The procedure in all cases by petition, under this chap- ter, shall be the same, in all respects, as prescribed by law in other special proceedings, except as modified by this chapter. 728 PROCESSIONING. [Chap. 48. CHAPTER FORTY-EIGHT. PEOOESSIONING. Section. 1934. Processioners of land appoint- ed by board of county com- missioners. 1925. Oath and term of offlce. 1926. Owners to file petition. 1927. Processioner to make report and return it to clerk, &c., to be recorded. 1928. When line disputed, and pro- cessioner forbidden to proceed, Section. he shall report to court; five freeholders then appointed ■with processioner. 1929. Person having land proces- sioned deemed owner; who not bound by processioning. 1930. Appeal allowed. 1931. Surveyors deemed procession- ers; their powers. Sec. 1924. Processioners of land appointed l>y board of county commissioners. R. C, c. 88, s. 1. 1792, c. 365, ss. 1, 2, 4. 1804, c. 670, s. 2. 1869-'70, c. 30. The board of county commissioners shall appoint one or more persons capable of surveying to act as proces- sioner in their respective counties, and any processioner, when there are several, may act alone. Sec. 1925. 0.atli and term of offlce. B. C, c. 88, s. 2. 1792, c. 365, s. 3. Every processioner shall take an oath of office, and shall continue in office until he resign or remove from the county, or be displaced by the board of county com- missioners. Sec. 1926. Owners to file petition. The proprietor of any land, who may desire to have it processioned, shall file his petition in the superior court of the county in which some part of the land may be sit- uated, setting forth the line or lines in dispute, and mak- ing defendants all persons whose lands adjoin his; the clerk shall thereupon issue a summons to the defendants as in other cases of special proceeding. Upon return of the summons served, the clerk shall issue an order to a processioner or county surveyor of his county to proces- sion said land according to the provisions of this chapter. Before the processioner shall act, the petitioner shall cause to be served on each defendant a written notice of the time when the processioner will attend to procession Chap. 48.J PEOCESSIONING. T29 said land, which shaU be served five days prior thereto; a copy of said notice, signed by the person serving it, shall be deUvered to the processioner. Robbins V. Wiadley, 3 Jon. Eq., 386; Bobbins v. Jackson, 63—309. Sec. 1927. Processioner to make report and return it to clerk, &c.; to be recorded by clerk. K. €., c. 88, s. 5. 1792, c. 305, ss. 6, 7, 8. The processioner shall make a plot of each tract of laud processioned, and a report which shall contain the claimant's name, the quantity of acres, the corners, leno-th. and course of each line, and which shall be signed and returned with a copy of the several notices, to the clerk of the superior court of the county for which the processioner is appointed, and unless exception thereto be filed within ten days, the same shall be confirmed; and the same, with the plot, shall be recorded by the clerk in a bound book kept for that purpose, and filed together in his office; and the fees of the processioner and clerk shall be paid by the proprietor of the land. Willson V. ShuflEord, 3 Mur., 504; Cansler v. Hoke, 3 Dev., 268; Car- penter V. Wbitworth, 3 Ired., 204; Matthews v. Matthews, 4 Ired., 155; Hoyle V. Wilson, 7 Ired., 467. Sec. 1928. How processioner to proceed In cases of dis- puted lines. 1874-'5, c. 40. When a line is disputed and the processioner is forbid- den by any person interested in the event of the proces- sioning, to proceed further in running and marking the same. Tie shall within ten days report the matter, stating truly all the circumstances of the case, with the name of the person who forbade further proceeding, to the supe- rior court of the county, and the said court shall there- upon as well as when exception shall be filed as provided in tlie preceding section, appoint five respectable free- holders, a majority of whom shall appear with the pro- cessioner on the line or lines so disputed and proceed, after being sworn by the processioner or some justice of the peace ^to do equal right and justice between the con- tending parties, to establish such disputed line or fines a| shall appear to them right, and procession the same and make report of their proceeding within thirty days to the superior court, and unless exception thereto be filed within ten days, the same shall be confirmed and re- corded as above directed: Provided, that either party may call in any other surveyor to act with the proces- no PROCESSIONING. [Chap. 48. sioner, and complete such survey, and the party against whom the decision is made shall pay all costs. Carpenter v. Wbitworth, 3 Ired., 204; Miller v. Heart, 4 Ired., 23; Rob- bins «a;i)arte, 63—309; Britt v. Benton, 79—177. Sec. 1929. Person having land processioned, deemed owner ; who not bound by processioning-. K. C, c. 88, s. 7. 1723, c. 14, ss. 1,2. Every person whose lands shall be procesioned to him, according to the directions of this chapter, shall be deemed and adjudged to be the sole owner thereof; and, upon any suit commenced for such lands, the party in possession may plead, and give the proceedings under this chapter in evidence: Provided, that the procession- ing of the lands of a tenant for life shall not bar or pre- clude the heir, or other person in reversion or remainder; neither shall any processioning bar or preclude femes co- vert, persons under age, non conqjos mentis, imprisoned, or out of the state; but all such persons may sue for, and dispute the title and bounds of any such lands, if they will commence and prosecute their suit within the time limited by law, after the removal of such disability. Britt V. Benton, 79—177. Sec. 1930. Appeal allowed. Any party shall have the right of appeal as in other cases of special proceedings. Sec. 1931. Surveyors deemed to be processioners ; their powers. 1872-'3, c. 57, ss. 1, 2. The county surveyors of the several counties shall be processioners in their respective counties, and shall have all the powers, and shall be subject to all the rules, regu- lations and restrictions of pi-ocessioners, as provided in this chapter. I Chap. 49.] EAILROAD COMPANIES. 731 CHAPTER FORTY-NINE. EAILEOAD AND TELEGEAPH COMPANIES. EAILROADS, Section. 1932. Rules for forming railroad comi^anies; name of company; route of railroad ; capital stock ; names and residences of di- rectors; articles to be filed in the office of secretary of state; when declared a cor- poration. 1933. Stock must be subscribed be- fore articles are filed ; atfidavit made by directors, and pay- ment of fifty dollars to secre. tary of state for common school purposes. 1934. Presumptive evidence of in- corporation. 1935. Directors to open books of subscription. 1936. President and directors; term of office; vote by shares; va- cancies; qualification of offi- cers; title acquired; when a corporation. 1937. Officers appointed by the pres- ident, &c. 1938. Payment by instalments; stock forfeited. 1939. Insufficiency of stock to be increased; meeting of stock- holders; time, place and ob- ject of meeting to be publicly notified. 1940. Liabilities of stockholders; exe- cution against stockholders. 1941. Stockholders liable for their ■wards. 1943. Indebtedness of laborers, how collected; time specified for action. Section. 1943. Right to acquire title to real estate. 1944. Petition presented, character of; names and places of resi- dence to be given; copy of pe- tition must be sent to the supe- rior court; (1) Persons residing in this state must have service per- sonally; (2) Non-residents having agents, public notice to be given; (3) Guardians notified for in- fants; (4) Respecting idiots; (5) Parties unknown are pub- licly notified by papers in the state; (6) Duty of court to appoint guardian for persous of un- sound mind; security re- quired. (7) Cases not provided for must be directed by superior court. 1945. Allegations made against peti- tion; freeholders appointed to appraise estate. 1946. Commissioners to l:e qualified ; to issue subposnas, administer oaths, to adjourn, to appraise and report under hands and seals; either side may tile ex- ceptions before clerk ; may ap- peal; upou payment of sum appraised, company to enter and take possession during ap- peal; final judgment; court 732 EAILROAD COMPANIES. [Chap. 49. Section. to have power to enforce judg- ment; land to belong to com- pany during its corporate ex- istence; possession of land not condemned to be surrendered to owner, &c. ; costs at the dis- cretion of judge or court. 1947. Court may adjudge rights of conflicting claimants. 1948. Attorney appointed by court to protect the rights of parlies unknown or non-residents. 1949. Court must take cognizance of all proceedings not provided for in this chapter. 1950. Change of ownership not to affect appraisal. 1951. Defective title, how reme- died. 1952. Maps of route to be made ; no- tice given to occupants of land; superior court peti- tioned, when route is objec- tionable; no alteration of route allowable, unless. &c.; time of certificate; compensa- tion. 1953. Discretionary with directors to change route of railroad for its improvement; certificate of alteration to be filed in clerk's office; no change made in city, unless sanctioned by majority of corporators; com- pensation for lands. 1954. Highways, turnpikes, &c., to l^rove no obstruction to rail- roads. 1955. Power of secretary of state and town authorities in certain cases to grant laud. 1956. Superior court empowered to authorize guardians to sell land of insane persons for corporate purposes; court may appoint special guardian; terms of sale, &c. ; report to court. Section. 1957. Corporate pwcrs: (1) To cause survey, &c.; (2) Vohmlary grants; (3) Holding property; (4) Grade of road; (5) Obstructions not allowable; (6) Crossing, intersecliug, &c., of railroads; (7) Right to carry persons and property ; (8) Erection of necessary build- ings; (9) Regulation of time and manner of transporlaion ; (10) Manner of raising funds. 1958. Railroad servants to wear a badge. 1959. Annual report to be made, verified and filed in the secre- tary of state's office; state- ments to be made. 1960. Penalty for failing to report. 1961. General assembly may reduce profits upon a road. 1962. Passengers violating rules of corporation may be ejected. 1963. Rules for transportation. 1964. Railroads, &c., to receive and forward freights; penalty for refusal. 1965. To keep a list of freight charges posted; not to be increased without notice; pen- alty. 1966. Discrimination in freight un- lawful; penalty; special con- tracts may be made. 1967. Freight unshipped for five days; penalty. 1968. Pooling freights and rebates forbidden ; penalty. 1969. Attorney-general to institute suits in certain cases. 1970. Check and duplicate for bag- gage; corporation liable for loss of brtggage. 1971. How trains to be arranged; penalty. Chap. 49.] RAILED AD COMPANIES. 733 » Section. 1972. Engineer intoxicated, a mis- demeanor. 1973. Railroad companies prohibited from loading or unloading freight cars on Sunday, and also from running locomotives or cars, except such as shall be run for carrying passengers or the mails. 1974. Injuries to railroad, misde- meanor. 1975. Railroads to construct cattle- guards; failure, misdemeanor. 1976. How actions may be brought. 1977. Chart of railroad to be made and filed. 1978. Injury to passengers not com- plying with regulations. 1979. Unlawful to enter railroad cars after being forbidden; misdemeanor. 1980. Railroads not completed in specified time, corporate ex- istence ceases. 1981. General assembly may annul any corporation. 1983. Rights and privileges. 1983. Railroads embracing the same location of line. 1984. Location of railroad in an ad- joining state. 1985. Unclaimed freight, publica- tion thereof. 1986. Unclaimed freight perishable, what done. 1987. Unclaimed funds to go to the University. 1988. Police force may be estab- lished. 1989. Governor to appoint police. 1990. Policemen to take oath. 1991. Badge of policemen. Section. 1993. Compensation. 1993. Dismissal of police, 1994. Transfer of capital stock ; cer- tificate to be filed in office of secretary of state. 1995. Directors of various railroads authorized to make arrange- ments to give through freight and travel. 1996. Subscription to stock may be made by board of county com- missioners. 1997. Manner in which subscriptions by board to be made; pro- viso. 1998. Elections, how held. 1999. Interests on bonds, how paid. 2000. Taxes, how paid. 2001. Officers of railroads to ac- count to their successors; pen- alty for failure or refusal. 2002. Governor may make a requisi- tion upon other states. 2003. To whom the provisions of the two preceding sections are applicable. 2004. Two hundred and fifty dollars must be paid before bill to in- corporate or to amend railroad charter can be introduced. 2005. Company dissolved, &c., own- er or purchaser to be a new corporation, and property, &c. , taxed. 2006. Conditional sale of railroad properly invalid as to subse- quent judgment creditors or purchasers, unless in wi-iting and registered; property sold to bear certain marks; not to apply to contracts heretofore made. TELEGRAPHS. Section. I Section. 2007. Telegraph lines, who may 2008. May maintain. I '"'ay. contract for right of 734 RAILEOAD COMPANIES. [Chap. 49. Section. 2009. Entitled to right of wa}', upon just compensation. 2010. Proceedings to be by petition; facts to be stated. 2011. Copy of petition and notice to be served on persons claiming lands, &c. 2012. Proceedings for condemnation; Section. appointment of commission- ers, Ibeir report; exceptions thereto; appeal; final judg- ment, &c. , to be as provided in this chapter in condemn- ing, ifcc, for railroads. 2013. Commissioners may inspect the premises. Sec. 1932. Kules for forming railroad companies; name of company; route of railroad; capital stock; names and residences of directors; articles to be filed in the office of secretary of state; when declared a corporation. 1871-'2, c. 138, s. 1. Any number of persons, not less than twenty-five, may form a company for the purpose of constructing, main- taining and operating a railroad for public use in the conveyance of persons and property, or for the purpose of maintaining and operating any unincorporated rail- road ah-eady constructed for the like public use; and for that purpose may make and sign articles of association, in which shall be stated the name of the company, the number of years the same is to continue, the places from and to which the road is constructed or maintained and operated, the length of such road as near as may be, and the name of each county in this state through or into which it is made or intended to be made, the amount of the capital stock of the company, which shall not be less than five thousand dollars for every mile of road con- structed or proposed to be constructed, and the number of shares of which said capital stock shall consist, and the names and places of residence of six directors of the company, who shall manage its affairs for the first year, and until others are chosen in their places. Each sub- scriber to such articles of association shall subscribe thereto his name, place of residence, and the number of shares of stock he agrees to take in said company. On compliance with the provisions of the succeeding section, such articles of association may be filed in the office of the secretary of state, who shall indorse thereon the day they are filed, and record the same in a book to be pro- vided by him for that purpose; and thereupon the persons who have so subscribed such articles of association, and all persons who shall become stockholders in such com- pany, shall be a coiporation by the name specified in Chap. 49.] EAILROAD COMPANIES. 735 such articles of association, and shall possess the powers and privileges granted to corporations by this chapter. Sec. 1933. Stock must be subscribed before articles are filed; affidavit made by directors; and payment of fifty dollars to secretary of state for common school pur- poses. 1871-'3, c. 138, s. 2. Such articles of association shall not be filed and re- corded in the office of the secretary of state until at least one thousand dollars of stock for every mile of railroad proposed to be made is subscribed thereto, and five per cent, paid thereon in good faith, and in cash, to the directors named in said articles of association ; nor until there is indorsed thereon or annexed thereto an affidavit made by at least three of the directors named in said articles, that the amount of stock required by this section has been in good faith subscribed and five per cent, paid in cash thereon as aforesaid, and that it is intended in good faith to construct or to maintain and operate the road mentioned in such articles of association, which affidavit shall be recorded with the articles of association, as aforesaid; nor until said directors shall pay to the secretary of state the sum of fifty dollars, which said sum shall be paid by the secretary of state to the state trea- surer, and by him placed to the credit of the public school fund. Sec. 1934. Presumptive evidence of incorporation. 1871- '2, c. 138, s. 3. A copy of any articles of association filed and recorded in pursuance of this chapter and of the record thereof with a copy of the affidavit aforesaid indorsed thereon or annexed thereto, and certified to be a copy by the secre- tary of state, shall be presumptive evidence of the incor- poration of such company, and of the facts therein stated. Sec. 1935. Directors to open books of subscription. 1871- '2, c. 138, s. 4. When such articles of association and affidavit are filed and recorded in the office of the secretary of state, the directors named in said articles of association may, in case the whole of the capital stock is not before sub- scribed, open books of subscription to fill up the capital stock of the company in such places and after giving such notice as they may deem expedient, and may con- tinue to receive subscriptions vintil the whole of the V36 RAILROAD COMPANIES. [Chap. 49. capital stock is subscribed; at the time of subscribing every subscriber shall pay to the directore five per cent, on the amount subscribed by him in money, and no sub- scription shall be received or taken without such pay- ment. Sec. 1036. Presideut and directors, term of office; vote by shares; vacancies; qualilicatiou of officers; title ac- quired; when a cori)oration. 1871-'3, c. 138, s. 5. There shall be a board of six directors and a j^resident of every corporation formed under this chapter to manage its afl'airs; and said directors and president shall be chosen annually by a majoi'ity of the votes of the stock- holders voting at such election, in such manner as may be prescribed in the by-laws of the corporation, and they may and shall continue in office until others are elected in their places. In the election of directors and ])resident each stockholder shall be entitled to one vote personally or by proxy on every share held by him thirty days previous to any such election, and vacancies in the board of directors shall be filled in such manner as shall be pre- scribed by the by-laws of the corporation. The inspectoi-s of the first election of directors shall be appointed by the board of directors named in the articles of association. No person shall be a director or president unless he shall be a stockholder owning stock absolutely in his own right and qualified to vote for directors at the election at which he shall be chosen; and at every election of directors the books and papers of such company shall be exhibited to the meeting if a majority of the stockholders present shall require it. And whenever the purchaser or pur- chasers of real estate, track and fixtures of any railroad corporation which has heretofore been sold or may be hereafter sold by virtue of any mortgage executed by such corporation or execution issued upon any judgment or decree of any court shall acquire title to the same in the manner prescribed by law, such purchaser or pur- chasers may associate with him and them any number of persons, and make and acknowledge and file articles of association as prescribed in this chapter; such purchaser or purchasers and their associates shall thereupon be a new corporation with all the powers, j^rivileges and franchises, and be subject to all the pi'ovisions of this chapter. Eliason v. Coleman, 86—235. Chap. 49.] EAILROAD COMPANIES. T37 Sec. 1937. Officers appointed bj the president, &c. 1871- '2, c. 138, s. 6. The president and directors shall appoint a treasurer and secretary and such other officers and agents as shall be prescribed by the by-laws. Sec. 1938. Payment by instalments; stock forfeited. 1871-'2, c. 138, s. 7. The directors may require the subscribers to the capital stock of the company to pay the amount by them res- pectively subscribed in such manner and in such instal- ments as they may deem proper. If any stockholder shall neglect to pay any instalment as required by a res- olution of the board of directors, the said board shall be authorized to declare his stock and aU previous payments thereon forfeited for the use of the company, but they shall not declare it so forfeited until they shall have caused a notice in writing to be served on him personally, or by depositing the same in the post-office, properly direct- to him at the post office nearest his usual place of resi- dence, stating that he is required to make such payment at the time and place specified in said notice, and that if he fails to make the same, his stock and all previous payments thereon will be forfeited for the use of the company, which notice shall be served as aforesaid at least sixty days previous to the day on which payment is required to be made. Sec. 1939. Insufficiency of stock to be increased ; meeting of stockholders; time, place and object of meeting to be publicly notified. 1871-'2, c. 138, s. 9. In case the capital stock of any railroad company is found to be insufficient for constructing and operatmg its road, such company may, with the concurrence of two-thirds in amount of all its stockholders, increase its capital stock from time to time to any amount required for the purposes aforesaid. Such increase must be sanctioned by a vote in pereon or by proxy of two-thn-ds in amount of all the stockholders of the company, at a meeting of such stockholders called by the directors of the company for that purpose, by a notice in writing to each stockholder, to be served on him personally or by depos- iting the same, properly folded and directed to him, at the post-office nearest his usual place of residence, in the post-office at least twenty days prior to such meeting. Such notice must state the time and place of the meeting and its object and the amount to which it is proposed to 738 RAILROAD COMPANIES. [Chap. 49. increase the capital stock. The proceedings of such meeting must be entered on the minutes of the proceed- ings of the company, and thereupon the capital stock of the company may be increased to the amount sanctioned by a vote of two-thirds in amount of all the stockholdei-s of the company aforesaid. Sec. 1940. Liabilities of stockholders ; execution against stockbolders. 1871-'2, c. 138, s. 10. Each stockholder of any such company shall be indi- vidually liable to the creditors of such company to an amount equal to the amount unpaid on the stock held by him, for all the debts and liabilities of such company until the whole amount of the capital stock so held by him shall have been paid to the company, and all the stock- holders of any such company shall be jointly and sever- ally liable for the debts due or owmg to any of its laborers and servants, other than contractors, for pereonal services for thirty days' service performed for such com- pany, but shaU not be liable to an action therefor before an execution shall be returned unsatisfied in whole or in part against the corporation, and the amount due on such executions shall be the amount recoverable with costs against such stockholders; before such laborer or servant shall charge such stockholder for such thirty days' services he shall give him notice in writing within twenty days after the performance of such service that he intends so to hold him liable and shall commence such actionthereforwithin thirty days after the return of such execution unsatisfied as above mentioned; and every such stockholder, against whom any such recovery by such laborer or servant shall have been had, shall have aright to recover the same of the other stockholders in said cor- poration in ratable proportion to the amount of the stock they shall respectively hold with himself. Sec. 1941. Stockholders liable for their wards. 1871-'2, c. 1.38, s. 11. No person holding stock in any such company as ex- ecutor, administrator, guardian or trustee, and no per- son holding such stock as collateral security, sball be per- sonally subject to any liability as stockholders of such company; but the person pledging such stock shall be considered as holding the same, and shall be liable as a stockholder accordingly; and the estates in the hands of such executor, administrator, guai-dian or trustee, shall be liable in like manner and to the same extent as the Chap. 49.] EAILROAD COMPANIES. 739 testator or intestate or the ward or person interested in such trust fund would have been if he had been Uving and competent to act and hold the same stock in his own name. Sec. 1942. Indebtedness of laborers, how collected; time specified for action. 1871-'2, c. 138, s, 12. As often as any contractor for the construction of any part of a railroad which is in progress of construction shall be indebted to any laborer for thirty or less number of days' labor performed in constnicting said road, such laborer may give notice of such indebtedness to said com- pany in the manner herein provided, and said company shall thereupon become liable to pay such laborer the amount so due him for such labor, and an action may be maintained against said company therefor. Such notice shall be given by said laborer to said company within twenty days after the performance of the number of days' labor for which the claim is made. Such notice shall be in writing, and shall state the amount and num- ber of days' labor, and the time when the labor was per- formed for which the claim is made, and the name of the contractor from whom due, and shall be signed by such laborer, or his attorney, and shall be served on an engineer, agent or superintendent employed by said company hav- ing charge of the section of the road on which such labor was performed, personally, or by leaving the same at the office or usual place of business of such engineer, agent or superintendent, with some person of suitable age. But no action shall be maintained against any company under the provisions of this section, unless the same is commenced within thirty days after notice is given to the company by such laborer as above provided. Sec. 1943. Right to acquire title to real estate. 1871-'2, c. 138, s. 13. In case any company formed under this chapter, or by special act of the general assembly, is unable to agree for the purchase of any real estate required for the pur- poses of its incorporation, it shall have the right to ac- quire title to the same in the manner and by the special proceedings prescribed in this chapter. Holloway v. R. R. Co., 85—453. Sec. 1944. Petition presented; character of; names and places of residence to be given ; copy of petition must be sent to superior court. 1871-'2, c. 138, s. 14. For the purpose of acquiring such title the said com- "ZdO RAILROAD COMPANIES. [Chap. 49. pany, or the owner of the land sought to be condemned, may present a petition praying for the appointment of commissioners of appraisal to the superior court of the county in which the real estate described in the petition is situated. Such petition shall be signed and verified according to the rules and practice of such court; and if filed by the company, it must contain a description of the real estate which the company seeks to acquire; and it must, in effect, state that the company is duly incor- porated, and that it is the intention of the company in good faith to construct and finish a railroad from and to the places named for that purpose in its articles of associ- tion, or in its charter; that the whole capital stock of the company has been in good faith subscribed, as required by this chapter, or by the terms of jts charter; that the company has surveyed the line or route of its proposed road, and made a map or survey thereof, by which such route or line is designated, and that they have located their said road according to such survey, and filed such certificates of such location, signed by a' majority of the directors of the company, in the clerk's office of the several counties through or into which the said road is to be con- structed; that the land described in the petition is required for the purpose of constructing or operating the proposed road; and that the company has not been able to acquire title thereto, and the reason of such inability. The pe- tition, whether filed by the company or the owner of the land, must also state the names and places of residence of the parties, so far as the same can by reasonable dih- gence be ascertained, who own or have, or claim to own or have, estates or interests in the said real estate; and if any such persons are infants, their ages, or as near as rnay be, must be stated; and if any such persons are idiots or persons of unsound mind or are unknown, that fact must be stated, together with such other allegations and statements of liens or incumbrances on said real estate as the company or the owner may see fit to make. A copy of such petition, with a notice of the time and place, when and where, the same shall be heard by the superior court, must be served on all persons whose in- terests are to be affected by the proceedings, at least ten days prior to the hearing of the same by the said court. (1) Persons residing in this state must have service personally. If the person on whom such service is to be made Chap. 49.] EAILEOAD COMPANIES. Y41 resides in this state, and is not an infant, idiot or person of unsound mind, service of a copy of such petition and notice must be made on him or his agent or attorney, authorized to contract for the sale of the real estate described in the petition, personally or by leaving the same at the usual place of residence of the person on whom service must be made as aforesaid, with some per- son of suitable age; (2) Non-residents having agents, public notice to be GIVEN. If the person on whom such service is to be made resides out of the state, and has an agent residing in this state, authorized to contract for the sale of the real estate described in the petition, such service may be made on such agent or on such person personally, out of the state, or it may be made by pubhshing the notice, stat- ing briefly the object of the apphcation, and giving a description of the laud to be taken, in a paper, if there be one, printed in the county, in which the land to be taken is situate, once in each week for one month next previous to the presentation of the petition, and if there be no paper printed in said county, then in some paper pubhshed in the city of Ealeigh. And if the residence of such person residing out of this state, but in any of the United States or any of the British colonies m North America, is known, or can by reasonable diligence be as- certained, the company must, in addition to such publica- tion as aforesaid, deposit a copy of the petition and notice in the post-oface, properly folded and directed to such person at the post-office nearest his place of resi- dence, at least thirty days before presenting such petition to the court, and pay the postage chargeable thereon in the United States; (3) Guardians notified for infants. If any person on whom such service is to be made is under the age of twenty-one years and resides in this state, such service shall be made as aforesaid, on his general guardian; or if he has no such guardian, then on such infant personally, if he is over the age of fourteen years; and if under that age then on the person who has the care of, or with whom such infant resides; EAILEOAD COMPANIES. [Chap. 49. (.4) Respecting idiots. If the person on whom such service is to be made is an idiot or of unsound mind, and resides in this state, such service may be made on the committee of his person or estate; or if he has no such committee, then on the per- son who has the care and charge of such idiot or person of unsound mind; (5) Parties unknown are publicly notified by papers IN the state. If the person on whom such service is to be made is unknown, or his residence is unknown and cannot by reasonable diligence be ascertained, then such service may be made under the direction of the court, by pub- hshing a notice, stating the time and place the petition will be presented, the object thereof, with a description of the land to be affected by the proceedings, in a paper, if there be one, printed in the county where the land is situate, once in each week for one month previous to the presentation of such petition, and if there be no paper printed in said county, then in a newspaper printed in the city of Raleigh; (6) Duty of court to appoint guardian fob persons OF unsound mind; security required. In case any party to be affected by the proceedings is an infant, idiot, or of unsound mind, and has no general guardian or committee, the court shall appoint a special guardian or committee to attend to the inteiests of such jjerson in tlie proceedings, but if a general guardian or committee has been appointed for such person in this state, it shall be the duty of such general guardian or committee to attend to the interests of such infant, idiot, or person of unsound mind, and the court may require such security to be given by such general or special guar- dian or committee as it may deem necessary to protect the rights of such infant, idiot, or person of unsound mind, and all notices requued to be served in the pro- gress of the proceedings may be served on such general or special guardian or committee; Chap. 49.] RAILROAD COMPANIES. 743 (7) Cases not provided for, must be directed by su- perior COURT. In all cases not herein otherwise provided for, services of orders, notices, and other papers m the special pro- ceedings kuthorized by this chapter may be made as the superior court shall direct. Mclnlyre v. K. R. Co., 67-278. Sec. 1945. Allegations made against Petition; free- lioltlers appointed to appraise estate. 187 1- -, c. i^». On presenting such petition to the superior court as aforesaid, with proof of service of a copy thereof, and notice as aforesaid, all or any of the persons whose es- tates or interests are to be affected by the proceedmgs, may answer such petition and show cause agamst grant- ing; the prayer of the same, and may disprove any of the fatts alleged in it. The court shall hear the proofs and allegations of the parties, and if no sufficient cause is shown against granting the prayer of the petition, it shall make an order for the appointment of three disin- terested and competent freeholders who reside m the county where the premises are to be appraised, tor the purposes of the company, and shall fix the time and place for the first meeting of the commissioners. B. R. Co. V. Wicker, 74—320; Holloway v. R. R. Co., 85—452. Sec 1946, Commissioners to be qualified to issue subpoe- nas, administer oatbs, to atljouin, to appraise and report under bands and seals; either side may file exceptions before clerk; may appeal; upon payment of sum appraised, company to enter and take possession dur- ing appeal ; final judgment ; court to have power to m- force judgment; land to belong to company during its corporate existence ; posses.sion of land not condemned to be surrendered to owner, &c.; costs at the discretion of judge or court. lS71-'2, c. 138, ss. 16, 17, 18. The commissioners, before entermg upon the discharge of their duties shall take and subscribe an oath that they will fairly and impartially appraise the lands mentioned in the petition. Any one of them may issue subpoenas, administer oaths to witnesses, and any two ot them may adiourn the proceedings before them from time to time, in their discretion. Whenever they meet except by the appointment of the com-t or pursuant to adjournment, 1U EAILROAD COMPANIES. [Chap. 49. they shall cause ten days' notice of such meeting to be given to the parties who are to be affected by their pro- ceedings, or their attorney or agent. They shall view the premises described in the petition, and hear the proofs and allegations of the parties, and reduce the testimony, if any is taken by them, to writing; and after the testi- mony is closed in each case, and without any unnecessary delay, and before proceeding to the examination of any other claim, a majority of them all being present and acting, shall ascertain and determine the compensation w^hich ought justly to be made by the company to the party or parties owning or interested in the real estate appraised by them; and in determining the amount of such compensation they shall not make an allowance or deduction on account of any real or supposed benefits which the parties in interest may derive from the con- struction of the proposed railroad. They shall report the same to the court under their hands and seals, and with- in twenty days after filing the same any person interested in the said land may file exceptions to said report, and upon the determination of the same by the court, either party to the proceedings may appeal to the court at term, and thence, after judgment, to the supreme court. The court or judge on the hearing may direct a new apprais- al, modify or confirm the report, or make such order in the premises as to him shall seem right and proper. If the said company, at the time of the appraisal, shaD pay into court the sum appraised by the commissionei-s, then and in that event the said company may enter, take pos- session of, and hold said lands, notwithstanding the pen- dency of the appeals, and until the final judgment ren- dered on said appeal or appeals. And if there shall be no appeal, or if the final judgment rendei-ed upon said peti- tion and proceedings, shall be in favor of the company, and upon the payment, by said company of the sum ad- judged, together with the costs and counsel fees allowed by the courts into the office of the clerk of the superior court, then and in that event, all persons who have been made parties to the proceedings shall be divested and barred of all right, estate and interest in such real estate during the corporate existence of the company aforesaid. A certified copy of said judgment under the seal of the court shall be registered in the county where the land is situate, and a copy of the same, or the original certified, may be given in evidence in all actions and proceedings, as deeds for land are now allowed to be read in evidence. All real estate acquired by any company under and pur- Chap. 49.] EAILROAD COMPANIES. 745 suant to the provisions of this chapter, for the purpose of its incorporation, shall be deemed to be acquired for the public use. But if the court shall refuse to condemn the land, or any portion thereof, to the use of said company, then, and in that event, the money paid into court, or so much thereof as shall be adjudged, shall be refunded to said com pan V. And the company shall have no right to hold said laiid not condemned, but shall surrender the possession of the same on demand, to the owner or own- ers, or his or their agent or attorney. And the court or judge shall have full power and authority to make such orders, judgments and decrees, and issue such executions and other process as inay be necessary to carry into effect the final judgment rendered in such proceedings. The costs in this proceeding shall be paid by either party as the judge or court in its discretion shall adjudge. The commissioners shall each be entitled to three dollars per day for each day they are engaged in the performance of their duties, and the same shall be tased in the bill of costs. Plott V. R. R. Co.,65— 74; R. R. Co. v. Wicker, 74—330; R. R. Co. v. Phillips, 78—49; Telegraph Co. v. R. R. Co.. 83—430; R. R. Co. v. R. R. Co., 83—498; HoUoway v. R. R. Co., 85—453; Com'rs v. Cook, 86—18. Sec. 1947. Court may adjudge rights of conflicting claim- ants. 1871-'2, c. 138, s. 19. If there are adverse and conflicting claimants to the money, or any part of it, to be paid as compensation for the real estate taken, the court may direct the money to be paid into the said court by the company, and may de- termine who is entitled to the same and direct to whom the same shall be paid, and may in its discretion order a reference to ascertain the facts on which such determina- tion and order are to be made. Sec. 1948. Attorney appointed by court to protect the rights of parties unknown or non-residents. 187 1-'3, c. 138, s. 30. The court shall appoint some competent attorney to appear for and protect the rights of any party in interet^t who is unknown or whose residence is unknown, and who has not appeared in the proceedings by an attorney or agent, and shall make an allowance to said attorney for his services, which shall be taxed in the bill of costs. The court shall also have power at any time to amend any defect or informality in any of the special proceed- ings authorized by this chapter as may be necessary, or T46 EAILROAD COMPANIES. [Chap. 49. to cause new parties to be added and to direct such fur- ther notices to be given to any party in interest as it deems proper; and also to appoint other commissioners in place of any who shall die, refuse, neglect to serve or be incapable of serving. Sec. 1949. Court must take cognizance of all proceed- ings not provided for in this chapter. 1871-'2, c. 138, s. 21. In all cases of appraisal under this chapter where the mode or manner of conducting all or any of the pro- ceedings to the appraisal and the proceedings consequent thereon ai-e not expressly provided for by the statute, the courts before whom such proceedings may be pending shall have the power to make all the necessary orders and give the proper directions to carry into effect the ob- ject and intent of this chapter, and the practice in such cases shall conform as near as may be to the ordinary practice in such courts. Sec. 1950, Change of ownership not to affect appraisal. 1871-'3, c. 138, S.32. When any proceedings of appraisal shall have been commenced, no change of ownership by voluntary con- veyance or transfer of the real estate or any inteiest therein or of the subject matter of the appraisal, shall in any manner affect such proceedings, but the same may be carried on and perfected as if no such convey- ance or transfer had been made or attempted to be made. Sec. 1951. Defective title, how remedied. 1871-'2, c. 138, s. 23. If at any time after an attempt to acquire title by ap- praisal of damages or otherwise, it shall be found that the title thereby attempted to be acquired is defective, the company" may proceed anew to acquire or perfect such title in the same manner as if no appraisal had been made, and at any stage of such new proceedings the court may authorize the corporation, if in possession, to continue in possession, and if not in possession, to take possession and use such real estate during the pendency, and until the final conclusion of such new proceedings, and may stay aU actions or proceedings against the com- pany on account thereof, on such company paying into court a sufficient sum or giving security as the court may direct to pay the compensation therefor when finally as- certained, and iu every such case the party interested in Chap. 49.] EAILROAD COMPANIES. 747 such real estate may conduct the proceedings to a con- clusion if the company delays or omits to prosecute the same. Sec. 1952. Maps of route to be made; notice given to oc- cupants of laud; superior court petitioned wlien route is objectionable; no alteration of route allowable, un- less, &c.; time of certificate; compensation. 1871-'2, c. 138, s. 24. Every company, before constructing any part of their road into or through any county named in their articles of association or charter, shall make a map and pi'ofile of the route intended to be adopted by such company in such county, which shall be certified by the president and engineer of the company or a majority of the directors and filed in the office of the clerk of each county through which the road is to be made. The company shall give a written notice to all actual occupants of the land over which the route of the road is so designated and which has not been purchased by or given to the company of the route so designated. Any party feeling aggrieved by the proposed location may, within fifteen daj-s after re- ceiving notice as aforesaid, apply to the superior court by petition duly verified, setting forth his objections to the route designated, and the said court may, if it considers sufficient cause therefor to exist, appoint three disinter- ested persons, one of whom must be a practical engineer, commissioners to examine the proposed route, and after hearing the parties, to affirm or alter the same as may be consistent with the just rights of all parties and the public, but no alteration of the route shall be made ex- cept by the concurrence of the commissioner who is a practical civil engineer. The determination of the com- missioners shall within thirty days after their appoint- ment be made and certified by them and the certificate filed in the office of the county clerk. Said commission- ers shall each be entitled to three dollars per day for their expenses and services, to be paid by the person who ap- plied for their appointment, and if the proposed route of the load is altered or changed by the commissioners, the company shall refund to the applicant the amount so paid. Sec. 1953. Discretionary with directors to change route of railroad for its improvement; certificate of altera- tion to be filed in clerk's office; no change made in city, unless sanctioned by majority of corporators thereof; compensation for lands. 1871-'2, c. 138, s. 25. The directors of every company may by a vote of two- 748 RAILROAD COMPANIES. [Chap. 49. thirds of their whole number at anytime alter or change the route or any part of the route of their road if it shall appear to them that the line can be improved thereby; and they shall make and file in the clerk's office of the proper county a survey, map and certificate of such alter- ation or change; and shall have the same right and power to acquire title to any lands required for the pur- poses of the company in such altered or changed route, as if the road had been located there in the first instance; and no such alteration shall be made in any city or vil- lage after the road shall have been constructed, unless the same is sanctioned by a vote of two-thirds of the cor- porate authorities of said city or trustees of said village ; and in case of any alteration made in the route of any railroad after the company has commenced grading, com- pensation shall be made to all persons for injury so done to any lands that may have been donated to the com- pany." All the provisions of this chapter relative to the first location and to acquiring title to land shall apply to every such new or altered portion of the route. N. C. R. R. V. R. R. Co., 83—489. Sec. 1954. Highways, turnpikes, &c., to prove no obstruc- tion to railroads. 187 1-'2, c. 138, s. 26. Whenever the track of a railroad constructed by a com- pany shall cross a railroad, a highway, turnpike or plank- road, such highway, tui'upike or plaukroad may be car- ried under or over the track as may be found most expedient; and in cases where an embankment or cutting shall make a change in the line of such highway, turn- pike or plankroad desirable, with a view to a more easy- ascent or descent, the said company may take such addi- tional lands for the construction of such road, highway, turnpike or plankroad on such new line as may be deem- ed requisite by the directors. Unless the lands so taken shall be purchased for the purposes aforesaid, compensa- tion therefor shall be ascertained in the manner prescrib- ed in this chapter for acquiring title to real estate, and duly made by said corporation to the owners and pereons interested in such land. The same when so taken shall become a part of such intersecting highway, turnpike or plankroad in such manner and by such tenure as the ad- jacent parts of the same highway, turnpike or plankroad may be held for highway purposes. Chap. 49.] RAILROAD COMPANIES. 749 Sec. 1955. Power of secretary of state and town authori- ties in certain cases to grant land. 1871-'2, c. 138, s. 27. The secretary of state shall have power to grant to any railroad company, any land belonging to the people of this state which may be required for the purposes of their road, on such terms as may be agreed on by them, or such company may acquire title thereto by appraisal, as in the case of lands owned by individuals; and if any land belonging to a county or town is required by any company for the purposes of the road, the county or town officers having the charge of such land may grant such land to such company for such compensation as may be agreed upon. Sec. 1956. Superior court empowered to autliorize guar- dians to sell land of insane persons for corporate pur- poses; court may appoint special guardian; terms of sale, &c., reported to court. 1871-'2, c. 138, s. 28. In case any title or interest in real estate acquired by any company for the purpose of its corporation, shall be vested in any trustee not authorized to sell, release, and convey the same, or in any infant, idiot or person of un- sound mind, the superior court shall have power, by a special proceeding, on petition, to authorize and empower such trustee or the general guardian or committee of such infant, idiot, or person of unsound mind, to sell and convey the same to such company for the purpose of its incorporation, on such terms as may be just; and in case any such infant, idiot or person of unsound mind has no general guardian or committee, the said court may ap- point a special guardian or committee for the purpose of making such sale, release or conveyance, and may require such security from such general or special guardian or committee as said coui't may deem proper. But before any conveyance or release authorized by this section shall be executed, the terms on which the same is to be exe- cuted shall be reported to the court on oath ; and if the court is satisfied that such terms are just to the party in- terested in such real estate, the court shall confirm the report and dii'ect the proper conveyance or release to be executed, which shall have the same effect as if executed by an owner of said land, having legal power to sell and convey the same. Sec. 1957. Corporate powers. 1871-'2, c. 138, s. 29. Every railroad corporation shall have power: 750 KAILROAD COMPANIES. [Chap. 49. (1) To CAUSE SURVEY, &C. To cause such examination and surveys for its proposed railroad to be made as may be necessary to the selection of the most advantageous route; and for such purpose, by its officers or agents and servants, to enter upon the lands or waters of any person, but subject to responsibility for all damages which shall be done thereto; (2) Voluntary grants. To take and hold such voluntary grants of real estate and other property as shall be made to it to aid in the construction, maintenance and accommodation of its rail- road; but the real estate received by voluntary grant ■ shall be held and used for the pm-poses of such grant only; (3) Holding property. To purchase, hold and use all such real estate and other property as may be necessary for the construction and maintenance of its railroad and the station and other ac- commodations necessary to accomphsh the object of its incorporation; (4) Grade op road. To lay out its road not exceeding one hundred feet in width, and to construct the same, and for the purpose of cuttings and embankments to take as much more land as may be necessary for the proper construction and security of the road, and to cut down any standing trees that may be in danger of falling on the road, making compensation therefor as provided in this chapter for lands taken for the use of the company; (5) Obstructions not allowable. To construct their road across, along, or upon any stream of water, watercourse, street, highway, plank road, tui-npike or canal which the route of its road shall intersect or touch, but the company shall restore the stream or water-course, street, highway, plank road and turnpike road thus intersected or touched, to its former state or to such state as not unnecessarily to have impaired its usefulness. Nothing in this chapter contained shall be Chap. 49.] RAILROAD COMPANIES. 751 construed to authorize the erection of any bridge or any other obstructions across, in, or over any stream or lake navigated by steam or sail-boats, at the place where any bridge, or other obstructions may be proposed to be placed, nor to authorize the construction of any railroad not already located in, upon, or across any streets in any city without the assent of the corporation of such city; (6) Crossing, intersecting, &c. , of railroads. To cross, intersect, join and unite its railroad with any other railroad before constructed, at any point on its route, and upon the grounds of such other company, with the necessary turnouts, sidings and switches and other conveniences in furthei'ance of the object of its connections. And every company whose railroad is or shall be hereafter intersected by any new railroad shall unite with the owners of such new railroad in forming such intersections and connections and grant the facilities aforesaid, and if the two corporations cannot agree upoii the amount of compensation to be made therefor, or the points and manner of such crossings and connections, the same shall be ascertained and determined by com- missioners to be appointed by the court as is provided in this chapter in respect to acquiring title to real estate; (Y) Right to carry persons and property. To take and convey persons and property on their railroad by the power or force of steam or animals, or by any mechanical power, and to receive compensation therefor; (8) Erection of necessary buildings. To erect and maintain all necessary and convenient buildings, stations, fixtures and machinery for the ac- commodation and use of their passengers, freight and business; (9) Regulation op time and manner of transporta- tion. To regulate the time and manner in which passengers and property shall be transported and the compensation to be paid therefor; and such compensation for any pas- 752 RAILROAD COMPANIES. [Chap 49. senger and his ordinaiy baggage shall not exceed five cents per mile; (10) Manner of raising funds. From time to time to borrow such sums of money as may be necessary for completing and finishing or oper- ating their railroad, and to issue and dispose of their bonds for any amount so borrowed, and to mortgage their corporate property and franchises to secure the payment of any debt contracted by the company for the purposes aforesaid, and the directors of the company may confer on any holder of any bond issued for money borrowed, as aforesaid, the right to convert the principal due or owing thereon into stock of said company at any time not exceeding ten years from the date of the bond, under such regulations as the directors may see fit to adopt. Com'rs V. R. R. Co., 77—289. Sec. 1958. Kailroad servants to wear a badge. 1871-'2, c. 138, s. 30. Every conductor, baggage master, engineer, brake- man, or other servant of any railroad coi-poration em- ployed in a passenger train, or at stations for passengers, shall wear upon his hat or cap a badge which shall indi- cate his office and the initial letters of the title of the cor- poration by which he is employed. No conductor or col- lector without such badge shall be entitled to demand or receive from any passenger any fare or ticket, or to ex- ercise any of the powers of his office; and no officer or servant without such badge shall have authority to meddle or interfere with any passenger, his baggage or property. Sec. 1959. Annual report to be made, verified and filed in the secretary of state's office; statements to be made. 1871-'2, c. 138, s. 31. Every railroad corporation shall make an annual report to the governor of the operations of the year ending on the thirtieth day of September, which report shall be verified by the oaths of the treasurer or president and acting superintendent and be filed in the office of the secretary of state by the fifteenth day of November in each year, and shall state — (1) The amount of capital as by charter; Chap. 49.] EAILROAD COMPANIES. 753 (2) The amount of stock subscribed; (3) The total amount of capital stock paid in; (4) The total amount of funded debt; (5) The amount of floating debt; (6) The average rate per annum of interest on funded debt. Cost op Road and Equipment. (7) The total amount expended for graduation and masonry; (8) The total amount expended for bridges; (9) The total amount expended for superstructure, in- cluding iron; (10) The total amount expended for passenger and freight stations, building and fixtures; (11) The total amount expended for engine and car houses, machine shops, machinery and fixtures; (12) The total amount expended for land, damages and fences; (13) The total amount expended for locomotives, fix- tures and plows; (14) The total amount expended for passenger and bag- gage cars; (15) The total amount expended for freight cars; (16) The total amount expended for engineering and agencies; (17) The total cost of road and equipment. Characteristics of Road. (18) Length of road and track laid; (19) Length of branches owned by the company, laid; (20) Weight of rail by yard, on main track; (21) The number of engine-houses and shops, of engines and cars, and their character. Doings of the year in transportation and total number of miles run. (22) Miles rim by passenger and freight trains, exclu- sively; (23) The number of miles, rate of fare, and number of miles traveled charged for the respective classes per mile; (24) Number of tons of freight and miles carried; (25) Average rate of speed adopted by ordinary pass- enger trains, including stops; 754 RAILROAD COMPANIES. [Chap. 49. (26) Average rate of speed adopted by freight trains, including stops; (27) Average weight in tons, of tvfo thousand pounds, of passenger trains, exclusive of passengers and baggage; (28) Average weight in tons of freight trains, exclusive of freight; (29) The amount of freight, specifying the quantity in tons, of the products of the forest, of animals, of veget- able food, other agricultural products, manufactures, merchandise and other articles; Expenses of maintaining the road or real estate of THE corporation. (30) For repairs of roadbed and railway, excepting cost of iron, which shall be the cost of labor and mate- rials used during the year, also use and cost of engines engaged in ballasting, also the renewal and repairs of gravel and stone cars and all items of cost connected with keeping the road in order; (31) For depreciation of way; (32) Length, in feet, of iron used in renewals, with weight and cost; (33) Repairs of buildings, fences and gates; (34) Taxes on real estate; (35) Expenses, repairs and depreciation of machinery and personal property itemized; (36) Incidental expenses, including fuel, oil, clerks, agents, watchmen and stationery; (37) Expense of employees; (38) Loss and damage of goods and baggage; (39) Damages for injuries to persons and property, in- cluding damages by lire and cattle killed; (40) Contingencies; (41) Total expenses of operating road; (42) The above statements are to be made without ref- erence to the sums actually received or paid during the year. The following statement of the earnings and cash re- ceipts and payments are required : (43) From passengers, freight and other sources, to be stated without reference to the amount actually collected; (44) Receipts during the year from freight, passengers and other sources; (45) Payment for transportation expenses, and for in- terest ; (46) Dividends on stock, amount and rate per cent. ; Chap. 49.] RAILROAD COMPANIES. 755 (47) Payment to surplus fund and total amount of said (48) The number of persons injured in life and limb, and the cause of the injury, and whether passengers or persons employed; whether any such accidents have arisen from carelessness or negligence of any person m the employment of the corporation, and whether su h person is retained in the service of the corporation; (49) It shall be the duty of the proper state officer to arrange the information contained in such reports m a tabular form and compare the same together with the said reports in a single document for printing for the use of the general assembly and report the same to the gen- eral assembly on the first day of its session; (50) All the items under the heads of expenses of main- taining the road or real estate of the corporation; ex- penses of machinery, of personal property of the corpora- tion; expenses of use of road and machinery or operating the road, shall be carried out under two heads, the one showing the cost of f leight transportation, the other the cost of passenger transportation; (51) The provisions of this section shall apply to ail ex- isting railroad corporations, and the report of the said existing railroad corporations, made in pursuance of the provisions of this section, shall be deemed to be a full compliance with any existing law or resolution requiring annual reports to be made by such corporation. Sec. 1960. Penalty for falling to report. 1871-'2, c. 138, s. 32. Any such corporation which shall neglect to make the report as is provided in the preceding section shall be liable to a penalty of five hundred dollars, to be sued for in the name of the state of North Carolina m the supe- rior court of "Wake county. Sec. 1961. General assembly may reduce profits upon road. 1871-'3, c. 138, s. 33. The general assembly may, when any railroad shall be opened for use, from time to time alter or reduce the rate of freight, fare, or other profits upon such road, but the same shall not, without the consent of the corpora- tion, be so reduced as to reduce said profits less than six per cent, per annum on the capital actually expended, nor unless on an examination of the amounts received and expended, to be made by the auditor or other officer charged with the duty, they shall ascertain that the net Y56 RAILROAD COMPANIES. [Chap. 49. income derived by the company from all sources for the year then last past shall have exceeded an annual income of six per cent, upon the capital of the corporation actu- ally expended. Railroad Co. v. Com'rs, 74—506; Railroad Co. v. GoTernor, 74—707. Sec. 1962. Passenger.s Tiolating rules of corporation may be ejected. 1871-'3, c. 138, s. 34. If any passenger shall reluseto pay his fare, or violate the rules of the corporation, it shall be lawful for the conductor of the train and the servants of the corpora- tion to put him and his baggage out of the cars, using no unnecessary force, at any usual stopping place or near any dwelling house, as the conductor shall elect, on stopping the train. Sec. 1963. Rules for transportation. 1871-'3, c. 138, s. 35. Every railroad corporation shall start and run their cars for the transportation of passengers and property at regular times to be fixed by public notice, and shall furnish sufficient accommodation for the transportation of all such passengers and property as shall, within a reas- onable time previous thereto, be offered for transporta- tion at the place of starting and the junction of other railroads and at usual stopping places established for re- ceiving and discharging way passengers and freights for that train, and shall take, transport and discharge such .passengers and property at, from and to such places; on the due payment of; the "freight or fare legally authorized therefor, and shall be hable to the party aggrieved, in an action for damages, for any neglect or refusal in the premises. Sec. 1964. Kailroads, &c., to receive and forward IteigLts; penalty for refusal. 1879, c. 182, s. 1. Agents or other officers of railroads and other transpor- tation companies whose duties it is to receive freights shall receive all articles of the nature and kind received by such company for transportation whenever tendered at a regular depot, station, wharf or boat landing, and shall forward the same by the route selected by the person tendering the freight under existing laws; and the trans- portation company represented by any person refusing to receive such freight shall be "liable to a penalty of fifty dollars, and each article refused shall constitute a .separate offence. Chap. 49.] EAILROAD COMPANIES. T57 Sec. 1965. To keep a list of freiglit charges posted; not to be increased without notice; penalty. 1879, c. 182, s. 2. It shall be the duty of all railroad and other transpor- tation companies to keep posted in a conspicuous place in theh- depots or places where freight is received tor shipment a list of its charges for carrying freight, specify - inp- name of place, class of freight and charge for carry- ing the same. Such charges shall not be increased with- out giving fifteen days" notice, and the company repre- sented by any agent refusing to comply with this section shall be liable to a ]>enalty of not less than fifty nor more than one hundred dollars. Sec. 1966. Discrimination in freight unlawful; penalty; special contracts may be made. 1874-'6, c 240. 1879, c. 237,s. 1. It shall be unlawful for any railroad corporation oper- ating in this state to charge for the transportation of any freight of any description over its road a greater amount as toll or compensation than shall at the same time be charged by it for the transportation of an equal quantity of the same class of freight transported in the same di- rection over any portion of tame railroad of equal dis- tance, and any railroad company violating this section shall forfeit and pay the sum of two hundred dollars for each and every offence to any person suing for the same. Nothing in this chapter shall be taken in any manner as abridging the right of any railroad company from mak- ing special contracts with shippers of large quantities of freight, to be of not less in quantity or bulk than one car load. Branch v. B. K. Co., 77—347. Sec. 1967. Freight unshipped for five days; penalty. 1874-'5, c. 240, s, 2. It shall be unlawful for any railroad company operat- ing in this state to allow any freight they may receive for shipment to remain unshipped for more than five days unless otherwise agreed between the railroad com- pany and the shipper, and any company violating this section shall forfeit and pay the sum of twenty-five dol- lars for each day said freight remains unshipped, to any person suing for the same. Branch v. R. R. Co., 77—347; Capehart v. R. R. Co., 81—438: Katzen- Btein V. R. R. Co., 84-688; Keeter v. R. B. Co., 86-346; Whitehead v. R. R. Co., 87—255. 758 RAILROAD COMPANIES. [Chap. 49. Sec. 1968. Pooling freights and rebates forbidden; pen- alty. 1879, c. 237, s. 3. It shall be unlawful for railroad companies to pool freights or to allow rebates on freights; and all persons whether railroad officials or others, who shall be con- cerned in pooling freights or who shall directly or indi- rectly allow or accept rebates on freights shall be guilty of a misdemeanor, and on conviction shall be fined not less than one thousand dollars or imprisoned not less than twelve months. Sec. 1969. Attorney-general to institute suits in certain cases. 1865-'6, Resolution ratified December 14, 1865. In the event of any contract having been entered into by any railroad company in this state with any person or company, whereby preferences or exclusive rights of transportation, either in priority or in arrangements, is given to such person or company the attorney general is hereby instructed to institute proceedings against such raih'oad company for a forfeitui'e of its charter. Sec. 1970. Check and duplicate for baggage; corpora- tion liable for loss of baggage. 1871-'2, c. 138, s. 36. A check shall be affixed to every parcel of baggage when taken for transportation by the agent or servant of such corporation, if there is a handle, loop or fixture so that the same can be attached upon the parcel or baggage so offered for transportation, and a duplicate thereof given to the passenger or person delivering the same on his behalf; and if such check be refused on demand the corporation shall pay to such passenger the sum of ten dollars to be recovered in a civil action; and further, no fare or toll shall be collected or received from such pas- senger, and if such passenger shall have paid his fare the same shall be refunded by the conductor in charge of the train, and on producing said check if, his baggage shaU not be delivered to him, he may, by an action, re- cover the value of said trunk or baggage. Sec. 1971. How trains to be arranged; penalty. 1871-'2, c. 138, s. 37. In forming a passenger train, baggage, freight, mer- chandise or lumber cars shall not be placed in rear of the passenger cars; and if they or any of them shall be so placed, the officer or agent who so directed or knowingly suffered such an arrangement, and the conductor of the Chap. 49.] RAILROAD COMPANIES. 759 train, shall be guilty of a misdemeanor and punished ac- cordingly. Sec. 1972, Engineer intoxicated a misdemeanor. 1871- '2, c. 138, s. 38. If any person shall, while in charge of a locomotive engine running upon the railroad of any such corpora- tion or while acting as the conductor of a car or train of cars on any such railroad, be intoxicated, he shall be guilty of a misdemeanor. Sec, 1973. Railroad companies prohibited from loading or unloading freight cars on Sunday, and also from running locomotives or cars, except such as shall he run for carrying passengers or the mails. 1879, cc. 97, 203. No railroad company shall permit the loading or un- loading of any freight car on Sunday; nor shall permit any car, train of cars, or locomotive to be run on Sunday on any railroad, except such as may be run for the pur- pose of transporting the United States mails, either with or without passengers, and except such as shall be run for carrying passengers exclusively: Provided, that the word Sunday in this section shall be construed to em- brace only that portion of the day between sunrise and sunset; and that trains in transitu, having started on Saturday, may, in order to reach the terminus or shops, run until nine o'clock a. ni. on Sunday, but not later, nor for any other purpose than to reach the terminus or shops. And any railroad company violating this section shall be guilty of a misdemeanor in each county in which such car, train of cars or locomotive shall run, or in which any such freight car shall be loaded or unloaded; and upon conviction shall be fined not less than five hun- dred dollars for each ofl:ence; the fine when collected to be paid to the state treasurer for the use of the pubUc schools. Keeter v. R. R. Co., 86—346. Sec, 1974, Injuries to railroad a misdemeanor. 1871-'2, c, 138, s, 39. If any person or persons shall wilfully do or cause to be done, any act or acts whatever whereby any building, construction, or work of any railroad corporation, or any engine, machine or structure or any matter or thing ap- pertaining to the same shall be stopped, obstructed, im- paired, weakened, injured or destroyed, the person or 760 BAILEOAD COMPANIES. [Chap. 49. persons so ofifending shall be guilty of a misdemeanor, and shall forfeit and pay to the said corporation treble the amount of damages sustained by means of such of- fence. Sec. 1975. Railroad companies to construct and maintain cattle guards, &c.; failure, misdemeanor, 1883, c. 394, ss. 1, 3. Every incorporated company owning, operating or con- structing, or which shall hereafter own, operate or con- struct, or any company which shall hereafter be incor- porated, and shall own, operate or construct any railroad passing through and over the land of any person now enclosed, or which may hereafter become enclosed, shall, at its own expense, construct and constantly maintain in good and safe condition, good and sufficient cattle guards at the points of entrance upon and exit from said enclosed land, and they shall also make and keep in con- stant repair crossings to any plantation road thereupon. Every such corporation which shall fail to erect and con- stantly maintain such cattle guards and crossings shall be guilty of a misdemeanor, and fined in the discretion of the court, and shall be further hable to an action for damages to the party aggrieved. Sec. 1976. How actions may be brought. 1871-'2,c. 138, s. 40. All penalties imposed by this chapter may, unless oth- erwise provided, be sued for in the name of the state; and if such penalty be for a sum not exceedmg two hun- dred dollars, then such suit may be brought before a jus- tice of the peace, and may be commenced by serving a summons on any director of such company. Sec. 1977. Chart of railroad to be made and filed. 1871- '3, c. 138, s. 41. Every corporation shall, within a reasonable time af- ter their road shall be constructed, cause to be made a map and profile thereof, and of the land taken or ob- tained for the use thereof, and file the same in the office for registering deeds in each county through which such parts of said road shall pass. Every such map shall be drawn on a scale and on paper, to be designated by the secretary of state, and certified and signed by the president or engineer of such corporation. Chap. 49.] EAILEOAD COMPANIES. 761 Sec. 1978. Injury to passengers not complying with regu- lations. 1871-'2, c. 138, s. 43. In case any passenger on any railroad shall be injui'ed while on the platform of a car or on any baggage, wood or freight car, in violation of the printed regulations of the company posted up at the time in a conspicuous place inside its passenger cars then in the train, such company shall not be liable for the injury: Provided, said company at the time furnish room inside its passen- ger cars sufficient for the proper accommodation of its passengers. Sec. 1970. Unlawful to enter railroad cars after being for- bidden, misdemeanor. 1883,0.351. It shall be unlawful for any person to enter into a railroad passenger car, or baggage car, or mail car, or caboose car, or upon the platforms of said cars after be- ing forbidden so to do by the conductor or his assistants, or the baggage master or other person in charge of said cars, unless said persons enter said cars or on said plat- forms as a passenger or in some official capacity author- ized by law, or on business with a passenger or some of- ficial or employee of the railroad or other like purpose, and for every violation of this section the person so of- fending shall be guilty of a misdemeanor, and shall be fined not exceeding ten dollars. Sec. 1980. Kailroads formed under this chapter not com- pleted in specified time, corporate existence ceases. 1871-'3, c. 138, s, 43. If any corporation shall not within two years after its articles of association are filed and recorded in the office of the secretary of state, or the passage of its charter, begin the construction of its road and expend thereon ten per cent, of the amount of its capital, or shall not finish the road and put it in operation in ten years from the time of filing its articles of association or passage of its charter as aforesaid, its corporate existence and pow- ers shall cease. Sec. 1981. General assembly may annul any corporation. 1871-'3, c. 138, s. 44. The general assembly may at any time annul or dis- solve any corporation; but such dissolution shall not take away or impair any remedy given against any such cor- poration, its stockholders or officers for any liability which shall have been previously incurred. R. R. Co. V. R. R. Co., 83—489. 762 RAILROAD COMPANIES. [Chap. 49. Sec. 1983. Kights and privileges. 1871-'2, c. 138, s. 45. All existing railroad corporations within this state shall respectively have and possess all the powers and pn\i- leges contained in this chapter; and they shall be subject to all the duties, liabilities and provisions of this chapter not inconsistent with their charters. R. R. Co. V. R. R. Co., 83-489; R. R. Co. v. Com'rs, 84—504. Sec. 1983. Railroads embracing' the same location of line. 1871-'2, c. 138, s. 46. Whenever two railroad companies shall, for a portion of their respective lines, embrace the same location of line, they may by agreement provide for the construc- tion of so much of said line as is common to both of them, by one of the companies, and for the manner and terms upon which the business thereon shall be per- formed. Upon the making of such an agreement, the company that is not to construct the part of the line which is common to both, may terminate its line at the point of intersection, and may reduce its capital to a sum of not less than five thousand dollars for each mile of the road proposed to be constructed. Sec. 1984. Location of railroad in an adjoining state. 1871-'2, c. 138, s. 47. Whenever after due examination it shall be ascertained by the directors of any raihoad company that a part of the line of railroad proposed to be made between any two points in this state ought to be located and constructed in an adjoining state, it may be so located and con- structed by a vote of two-thirds of all the directors, and the sections of said railroad within this state shaU be con- sidered a connected line, and tlie directors may reduce the capital specified to such amount as may be deemed proper, but not less than the amount required by law for the number of miles of railroad to be actually constructed in this state. Sec. 1985. Unclaimed ft-eight, publication thereof. 1871- '3, c. 138, s. 48. Every railroad company whicli shall have had un- claimed freight, not jierishable, in its possession for a period of one year at least, may proceed to sell the same at public auction, and out of the proceeds may retain the charges of transportation and storage of such fieight and the expenses of advertising and sale thereof; but no such sale shall be made until the expiration of four weeks Chap. 49.] KAILROAD COMPANIES. 763 from the first publication of notice of such sale in a state paper and also in a newspaper published at or nearest the place at which such freight was directed to be left, and also at the place where such sale is to take place; and said notice shall contain a description of such freight, the place at which and the time when the same was left, as near as may be, together ^vith the name of the owner or person to whom consigned, if known, and expenses in- curred for advertising shall be a lien upon such freight in a ratable proportion, according to the value of each article, package or parcel, if more than one. Sec. 1986. Unclaimed freight perishable, what done. 1871-'2, c. 138, s. 49. In case such unclaimed freight shall in its nature be perishable, then the same may be sold as soon as it can be on giving the notice required in the preceding section, after its receipt at the place where it was directed to be left. Sec. 1987. Unclaimed funds to go to the University. 1871-'2, c. 138, s. 50. Such railroad company shall make an entry of the bal- ance of the proceeds of the sale, if any, of each parcel of freight owned by or consigned to the same person, as near as can be ascertained, and at any time within five years thereafter shall refund any surplus so retained to the owner of such freight, his heirs or assigns, on satis- factory proof of such ownership; if no person shall claim such surplus witliin five years, said surplus shall be paid to the University. Sec. 1988. Police force may be established. 1871-'3, c. 138, s. 51. Any railroad corporation on which road steam is used as the motive power may apply to the governor to com- mission such persons as the said coi-poration may desig- nate to act as pohcemen for said corporation. Sec. 1989. Governor to appoint police. 1871-'2, c. 138, s. 53. The governor upon such application may appoint such persons or so many of them as he may deem proper to be such pohcemen, and shall issue to such person or persons so appointed a commission to act as such policemen. 764 EAILEOAD COMPANIES. [Chap. 49. Sec. 1990. Policemen to take an oatb. 1871-'2, c. 138, s. 53. Every policeman so appointed shall, before entering upon the duties of his office, take and subscribe the usual oath; such oath with a copy of the commission shall be filed with the secretary of state and a certificate therepf by said secretary be filed with the clerk of each county through or into which the railroad for which such police- man is appointed may run and in which it is intended he shall act, and such policemen shall severally possess within the hmits of the county all the powers of police- men in the several towns, cities and villages in which they shall be so authorized to act as aforesaid. Sec. 1991. Badge of policemen. 1871-'2, c. 138, s. 54. Such railroad police shall, when on duty, severally wear a metallic shield with the words "Eailway Police," and the name of the corporation for which appointed inscribed thereon, and said shield shall always be worn in plain view except when employed as detec- tives. Sec. 1992. Compensation. 1871-'2, c. 138, s. 56. The compensation of such police shall be paid by the companies for which the policemen are respectively ap- pointed as may be agreed on between them. Sec. 1993. Dismissal of police. 1871-'2, c. 138, s. 56. Whenever any company shall no longer require the services of any policeman so appointed as aforesaid, they may file a notice to that efifect in the sevei-al offices in which notice of such appointment was originally filed, and thereupon the power of such officer shall cease and be determined. Sec. 1994. Transfer of capital stock; certificate to be filed in office of secretary of state. 187 1-'2, c. 138, s. 57. Any railroad corporation or its successors, being the lessee of the road of any other raih-oad corporation, may take a surrender or transfer of the capital stock of the stockholders or any of them, in the corporation whose iTjad is held under lease, and issue in exchange therefor the like additional amount of its own capital stock at par, or on such other terms and conditions as may be agreed upon between the two corporations; and whenever the greater part of the capital stock of any such corporation shall have been so surrendered or transferred, the direc- Chap. 49.] RAILROAD COMPANIES. T65 tors of the corporation taking such surrender or transfer shall thereafter, on a resolution electing so to do to be entered on their minutes, become ex-officio the directors of the corporation whose road is so held under lease, and shall manage and conduct the affairs thereof as provided by law; and whenever the whole of said capital stock shall have been so surrendered or transferred, and a cer- tificate thereof filed in the office of the secretary of state under the common seal of the corporation to whom such surrender or transfer shall have been made, the estate, property, rights, privileges and franchises of the said corporation whose stock shall have been so surrendered or transferred, shall thereupon vest in and be held and enjoyed by the said corporation to whom such surrender or transfer shall have been made, as fully and entirely and without charge or dimunition as the same were be- fore held and enjoyed, and be managed and controlled by the board of directors of the said corporation to whom such surrender or transfer of the said stock shall have been made in the corporate name of such corporation. But the property, rights, franchises and profits of every corporation so surrendered, transferred or leased, shall hereafter always be liable to taxation, and shallnever be exempt therefrom. The rights of any stockholder not so surrendering or transferring his stock shall not be in any way affected thereby, nor shall existing liabilities or the rights of creditors of the corporation where stock shall have been so surrendered or transferred be in any way af- fected or impaired by this section. Sec. 1995. Directors of various railroads authorized to make arrangements to give through freight and travel. 1866-'7, c. 105, s. 1. The directors representing the stock held in the various railroad corporations are hereby authorized and empow- ered to enter into such agreements and terms with each other as to secure through freight and travel without the expense of transfer of freight, or breaking the bulk thereof, at different points along the hues, and for this purpose may use the road or roads of said corporations or companies, and rolling stock thereof, on such terms as may be agreed upon by the directors of said corporations or companies. Sec. 1996. Subscription to stock may he made by board of county commissioners. 1868-'9, c. 171, s. 1. The boards of commissioners of the several counties shall 766 EAILROAD COMPANIES. [Chap. 49. have power to subscribe stock to any railroad company or companies, when necessary to aid in the completion of any railroad in which the citizens of the county may have an interest. •' Bill V. Com'rs, 67—367; Street v. Com'rs, 76—44. Sec. 1997. Manner in whicli subscriptions by board to be made ; proviso. 1868-'9, c. 171, s. 2. The board of commissioners of any county proposing to take stock in any railroad company shall meet and agree upon the amount to be subscribed, and if a majority of the board shall vote for the proposition, this shall be entered of record, which shaUshow the amount proposed to be subscribed, to what company, and whether in bonds money or other property, and thereupon the board shall order an election, to be held on a notice of not less than thirty days, for the purpose of voting for or against the proposition to subscribe the amount of stock agreed on by the board of county commissioners. And if a majority of the qualified voters of the county shall vote in favor of the proposition, the board of county commissioners through their chairman, shall have power to subscribe the amount of stock proposed by them, and submitted to the people subject to all the rules, regulations and restric- tions of other stockholders in such company or companies: Provided, that the counties, in the manner aforesaid shall subscribe from time to time such amounts, either m bonds or money, as they may think proper. Caldwell v. Justices, 4 Jon. Eq., 323; Manly v. Raleigh, 4 Jon. Eq 370- Cain V. Com'rs. 86—8. ' ' Sec. 1998. Elections, bow held. 1868-'9, c. 171, s. 3. u ^^-^lections ordered under the preceding section shall be held by the sheriff under the laws and regulations provided for the election of members of the general as- sembly. The votes shall be compared by the boards of county commissioners, who shall make a record of the same. Simpson v. Com'rs. 84-158; Norment v. Charlotte. 85— 378- Cain v Com'rs, 86—8. Sec. 1999. Interest on bonds, how paid. 1868-'9 c 171 s. 4. > • . • -l^ ^^^^ *^^ county shall subscribe the amount proposed in bonds, the board of commissioners shall have power to nx the rate of interest, not to exceed the rate of eight per cent., when the interest on said bonds shall be pay- Chap. 49.] EAILEOAD COMPANIES. 767 able, and at what place, and shall also fix the time and places of paying the interest, and shall also determine the mode and manner of the same; and also to raise by taxa- tion, from year to year, the amount necessary to meet the interest on said bonds. Sec. 3000. Taxes, liow paid. 1868-'9, c. 171, s. 5. The taxes authorized by the three preceding sections to be raised for the payment of interest or principal, shall be collected by the sheriff in like manner as other state taxes, and be paid into the hands of the county treasurer, to be used by the chairman of the board of county com- missioners as directed by this chapter. Sec. 2001. Officers of railroads to account to their suc- cessors; penalty for failure or refusal. 1870-'71, c. 72, ss. 1, 3. The president and directors of the several railroads, and all persons acting under them, are hereby required upon demand to account with the president and directors elected or appointed to succeed them, and shall transfer to them forthwith all the money, books, papers, choses in action, property and effects of every kind and description belonging to such company, and anyone refusing or fail- ing to account for and transfer all the money, books, pa- pers, choses in action, property and effects, as herein re- quired, shall be guilty of a misdemeanor, and shall be punished by imprisonment in the penitentiary for not less than one nor more than five years, and be fined at the discretion of the court. All persons conspiring with any such president, directors or their agents to defeat, delay or hinder the execution of this section shall be guilty of a misdemeanor, and punished in hke manner. State T. Jones, 67—210. Sec. 2002. Governor may make a requisition upon other states. 1870-'71, c. 72, s. 2. The governor is hereby authorized, at the request of the president, directors, and other officers of any railroad company, to make requisition upon the governor of any other state for the apprehension of any such president failing to comply with the preceding section. Sec. 2003. To whom the provisions of preceding sections are applicable. 1870-'71, c. 72, s. 4. The two preceding sections shall apply to all pi-esidentr. and directors and their agents who have not settled in 768 RAILROAD COMPANIES. [Chap. 49. full with their successors in office prior to the fifteenth day of February, one thousand eight hundred and seventy- one. Sec. 2004. Two hundred and jBfty dollars must be paid before bill to incorporate or to amend railroad charter can be introduced. No bill to incorporate any railroad company, or to alter, amend, change or modify any act of incorporation of any railroad company, other than one in which the state is a stockholder, shall be introduced. into either house of the general assembly unless accompanied by the receipt of the state treasurer for two hundred and fifty dollars; and the same shall be placed to the credit of thepublic school fund by the said treasurer. P(Mmni Proctor V. R. R. Co., ?&— 579; State v. R. R. Co., 73—527. Sec. 2005. Company dissolved, &c.; owner or purchaser to be a new corporation and property, &c., taxed. When any railroad corporation shall be dissolved, or its property sold and conveyed under any execution, deed of trust, mortgage or other conveyance, the owner or pur- chaser shall constitute a new corporation, and the prop- erty, franchises and profits of said new corporation shaU be taxed as other like property, franchises and profits are taxed. State V. Rives, 5 Ired., 297; Young v. Rollins, 85—485. Sec. 2006. Conditional sale of railroad property invalid as to subsequent judgment creditors or purchasers un- less in writing and registered; property sold, to bear certain marks ; not to apply to contracts heretofore made. 1883, c. 416, ss. 1, 2. Whenever any railroad equipment and rolling stock shall hereafter be sold, leased or loaned on the condition that the title to the same, notwithstanding the possession and use of the same by the vendee, lessee, or bailee, shall re- main in the vendor, lessor or bailor until the terms of the contract, as to the payment of the instalments, amounts or rentals payable, or the performance of other obligations thereunder, shall have been fully complied with; such contract shall be invalid as to any subsequent judgment creditor, or any subsequent purchaser for a valuable consideration without notice, unless: (1) the same shall be evidenced by writing duly acknowledged before some person authorized to take acknowledgments of deeds. Chap. 49.] TELEGEAPH COMPANIES. 769 (2) Such writing shall be registered in the same book as mortgages are registered, in the office of the register of deeds in the county in which is located the principal office or place of business of such vendee, lessee or bailee within the state. (3) Each locomotive or car so sold, leased or loaned shall have the name of the vendor, lessor or bailor, or the assignee of such vendor, lessor or bailor plainly marked upon both sides thereof, foDowed by the word owner, lessor, bailor or assignee, as the case may be. This section shall not apply to or invalidate any con- tract made before the twelfth day of March, one thousand eight hundred and eighty-three. TELEGRAPHS. Sec. 2007. Telegraph lines, who may maintain. 1874- '5, c. 303, s. 2. Any telegraph company chartered or incorporated by this or any other state shall have the right to construct, maintain and operate lines of telegraph along any rail- road or other public highway in the state of North Caro- hna, but such lines of telegraph shall be so constructed and maintained as not to obstruct or hinder the usual travel on such railroad or other highway. R, R. Co. V. R. R. Co., 83— 489. Sec. 2008. May contract for right of way. 1874-'5, c. 203. s. 3. Such telegraph company shall have power to contract with any person or corporation, the owner of any lands or of any franchise or easement therein, over which such line of telegraph is proposed to be erected, for the right of way for planting, repairing and preservation of its tele- graph poles or other property, and for the erection and occupation of offices at suitable distances for the public accommodation. Sec. 2009. Entitled to right of way upon just compensa- tion. 1874-'5, c. 203, s. 4. Such telegraph company shall be entitled to the right of way over the lands, privileges and easements of other persons and corporations, and the right to erect poles and to establish offices, upon making just compensation there- for. 33 770 TELEGRAPH COMPANIES. [Chap. 49. Sec. 2010. Proceedings to be by petition; facts to be stated. 1874-'5, c. 203, s. 5. Whenever such telegraph company shall fail on appli- cation therefor to secure by contract or agreement such right of way for the purposes aforesaid over the lands, privilege or easement of another person or corporation, it shall be lawful for sucli telegraph company, first giving security for costs, to file its petition before the superior court for the county in which said lands are situate, or into or through which such easement, privilege or fran- chise extends, setting forth and describing the parcels of land, privilege or easement over which the way, privilege or right of use is claimed, the owners of the land, ease- ment or privilege, and their place of residence, if known, and if not known that fact shall be stated, and such pe- tition shall set forth the use, easement, privilege or other right claimed, and must be sworn to, and if the use or right sought be over or upon an easement or right of way, it shall be sufficient to give jurisdiction if the per- son or corporation owning the easement or right of way be made a party defendant: Provided, that only the interest of such parties as are brought before the court shall be condemned in any such proceedings, and if the right claimed be over or upon an easement or right of way which extends into or through more counties than one, the whole right and controversy may be heard and determined in one county into or through which such easement or right of way extends. Telegraph Co. v. R. R. Co., 83—420. Sec. 2011. Copy of petition and notice to be served on persons claiming lands, &c. 1874-'5, c. 203, s. 6. A copy of such petition, with a notice of the time and place the same will be presented to the superior court, must be served on the person or persons whose interests are to be affected by the proceeding at least ten days prior to the presentation of the same to the said court. If the person on whom the service is to be made be a cor- poration, it shall be sufficient if notice be served on an officer or agent of the corporation found in the county in which the land or easement is situated, or upon any other officer of the corporation. Sec. 2012. Proceedings for condemnation, appointment of commissioners, their report, exceptions thereto; ap- peal, final judgment, &c., to be as provided in this chap- ter in condemning, &c., for railroads. The proceedings for the condemnation of lands, or any Chap. 50.] ROADS, FERRIES AND BRIDGES. 771 easement, or interest tliereiu, for the use of telegraph companies, the appraisal of the lands, or interest therein, the duty of the commissioners of appraisal, the right of either party to file exceptions, the report of commission- ers, the mode and manner of appeal, the power and authority of the court or judge, the final judgment, and the manner of its entry and enforcement, and the rights of the company pending the appeal, shall be as pre- scribed in this chapter for condemning lands to the use of railroads. Sec. 2013. Commissioners may inspect the premises. 1874-'5, c. 203, s. 9. In considering the question of damages when the in- terest sought is over an easement, privilege or right of way, the commissioners may inspect the premises or rest their finding on testimony as to them may be satisfac- tory, and the costs of the proceedings shall be paid by the petitioner, unless in the opinion of the superior court the defendant improperly refused the privilege, use or easement demanded, in which case the costs must be ad- judged as to the court may appear equitable and just. CHAPTER FIFTY. ROADS, FEREIES AND BRIDGES. Section. 2014. What shall be public roads and ferries; their supervision given to justices of the peace; board of supervisors of public roads and county commis- sioners to establish and dis- continue ferries, roads and bridges. 2015. Meeting of board of super- Section. designated; notice to over- seeis, &c. 2017. Who liable to work on roads; time compelled to work. 2018. No person exempt from work- ing but by board of super- visors. 2019. When overseer to summon hands to work roads; notice; visors; date of election, &c. | duty of persons summoned; 2016. Townships to be divided into sections and overseers ap- pointed; boundaries to be proviso. 2020. Failure to attend and ■work, misdemeanor; fine and costs. 772 EOADS, FERRIES AND BRIDGES. [Chap. 50. Section. 2021. Overseers to report to board of supervisors; report to be verified; ■warrant to issue against road band failing to perform duty. 2032. Overseers to report all moneys collected to supervisors; fail- ure to discharge dutie«, mis- demeanor; duty of chairman of board of supervisors. 2023. Jurisdiction of supervisors over cartways; jurisdiction of board of county commission- ers over roads; proviso; ap- peal. 2024. Board of supervisors to report to superior court; clerk to de- liver report to foreman of grand jury; misdemeanor; punishment. 2025. Width of roads, cartways, bridges; proviso. 2026. Overseers may apportion road among hands, but still liable for default. 2027. Timber and earth taken from adjoining lands. 2028. Owners may petition board of commissioners. 2029. Footways and hollow-bridges made where supervisors may order; their order presumed after ten years' use. 2030. Sign-posts at fork of roads to be set up by overseers; pen- alty for neglect. 2031. Oa persons removing or de- facing posts or mile-marks. 2033. Overseer to measure and mile- mark roads. 2033. Penalty on overseer for gen eral neglect of duty. 2034. Board of supervisors, &c., to erect bridges at county ex- pense. 2035. Contracts to build bridges binding on county. 2036. Owners of mills and ditches on Section. and across roads to keep up bridges; provi os. 2037. Penalty for neglect. 2038. Ferries and roads, how estab- lished, altered or discontin- ued. 2039. Board may order how costs shall be paid; appeal; contro- versies concerning roads, &c., carried by appeal to the supe- rior court to be tried by a jury. 2040. Roads, how laid out. 2041. When roads changed, how re- ceived. 2042. How persons may turn roads on their own lands. 2043. Board of supervisors in ten days to furuish constable with orders appointing overseers; constable to apply to board for orders and serve them within twenty days; penalty on board and constable for neglect. 2044. Notice, how served. 2045. Toll-bridges allowed by board of commissioners, when ; builders to keep them in re- pair or forfeit toll and be in- dicted. 2046. Tolls of ferry regulated by board of commissioners; pen- alty for refusing to keep it up. 2047. Owner may build toll-bridge at his ferry; draw-bridge, when made. 2048. Bonds of owners of ferries and toll-bridges to be taken by board of commissioners; per- sons injured may recover damages. 2049. Penalty for keeping ferry, &c., without authority; proviso for mail carriers. 2050. Fastening vessels to float bridge; penalty. Chap. 50.] EOADS, FERRIES AND BRIDGES. 773 Section. 2051. Railroad companies to keep draw-bridge. 2053. Owners of steam-boats, &c., to notify owners of bridges to construct draws; penalty for neglect. 2053. Counties to erect draws where necessary. 2054. Railroad companies, &c., to keep bridges over county roads; penally for failure. 2055. Duty of solicitors to prosecute for injuries to bridges. 2056. Cart-ways, in what cases and how obtained; proceedings therefor. 2057. May be changed or discontin- Section. ued, and gates and bars erect- ed, &c. ; penalty for injuring them. 2058. License to erect gates across highways, how obtained. 2059. Who exempt from working on roads. 2060. Expenses borne by whole peo- ple of county, when. 2061. Road-steamers may run upon public roads. 2062. Boards of supervisors to lay out, &c., church roads. 2063. Petition for the same. 2064. Manner of laying out roads. 2065. Obstruction of road, &c., a misdemeanor. Sec. 2014. What shall be public roads and ferries; their supervision given to justices of the peace; board of supervisors of public roads and county commissioners to establish and discontinue ferries, roads and bridges. B. C, c. 101, s. 1. 1784, c. 327, s. 1. 1868, c. 20, ss. 11, 16, 17, 18. lS68-'9, c. 185, s. 14. 1879, c. 82, s. 1. All roads and ferries that have been laid out or ap- pointed 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 tlie purposes aforesaid, they are hereby incorporated the "Board of Supervisors of Public Roads," and the board of county commissioners, as hereafter in this chap- ter set forth, shall have full power and authority within their respective counties to appoint and settle 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. Carr v. Hairston, 1 C. L. Repos., 249; Beard v. Long 2 Car. L. Repos., G9; Pipldn V. Wynns, 2 Dev., 403; Woolard v. McCullough, 1 Ired., 433; Baker v. Wilson, 3 Ired., 168; State v. Marble, 4 Ired., 318; State v. Hun- ter, 5 Ired., 369; State v. Johnson, 11 Ired., 647; State v. Cardwell, Busb., 245; Tarkington V. McRae, 3 Jon., 47; Davis v. Ramsay, 5 Jon., 236; State 771 EOADS, FERRIES AND BRIDQES. [Chap. 50. V. McDaniel, 8 Jon., 284; Burgwynv. Lockbart, Winst., 269; Carrow v. Washington Toll Bridge Co., Phil., 118; Barrington v. Neuse River Ferry Co., 69— 1C5; State v. Witherspoon, 75—223; Ashcraft v. Lee, 79—34; Ash- craft V. Lee, 81—135; State v. Selby, 83—617; Kennedy v. Williams, 87—6. Sec. 2015. Meeting of the board of supervisors; date of election, &c. 1879, c. 82. s. 2. 1880, c. 30, s. 1. The said board of supervisors shall meet at some place ia their respective townships to be agreed upon by them- selves, or in the absence of such agreement, to be named by their chairman, on the first Saturday of February and August, for the purpose of consulting on the subject of the condition of the roads in their township. They shall once in each year, during the week of their meeting in August, go over and personally examine all the roads in their township. They shall annually at their meeting in February elect some one of their number chairman: Pro- vided, that no supervisor shall receive any compensation for his services as supervisor of public roads. Sec. 201G. Townships to be divided into sections, and overseers appointed; boundaries to be designated; no- tice to overseers, &c. 1879, c. 82, ss. 3, 7. 1880, c. 30, s. 1. The said board of supervisors shall annually at the meeting in February divide the roads of their townships into sections and appoint overseers for said sections at said meeting. They shall at the same time allot the hands to said overseers, and shall also designate the boundaries or points to which each resident shall be liable to w^ork on said section, and shall within five days alter such meeting certify to each overseer written notice of his appointment, with a list of the hands assigned to his section: Provided, that the board of supervisors may at any time alter the sections or allotment, but shall give notice thereof to the overseer. Such overseer shall serve, and be hable as such for neglect of duty, until he shall be relieved by the board, whicn shall be done only upon his showing that his road is in good condition as prescribed by law. The overseer may resign after the expiration of twelve months, provided "his road shall be in good repair and the board of supervisors shall so find; and any over- seer so resigning, and whose resignation has been accept- ed by the board, shall not without his consent be again appointed overseer until after the expiration of two years from the date of his resignation. When a public road Chap. 50.] ROADS, FEREIES AND BRIDGES. T75 shall be a dividing line between townships, the board of commissioners of the county shall determine as to how said road shall be divided, with notice as to the workmg of said road. Cantrell v. Pinkney, 8 Ired., 436; Calvert v. Whittington, 11 Ired., 278; McBoyle v. Hanks, 1 Jon., 133; Tarkingtoa v. McKea, 3 Jon., 47; State v Long, 81—563. Sec. 2017. Who liable to work on roads; time compelled. 1879, c. 83, s. 4. 1880, c. 30, s. 3. All able-bodied male persons between the ages of eighteen years and forty-five years shall be requu-ed un- der the provisions of this chapter to work on the public roads, except the members of the board of supervisors of pubhc roads, but no person shall be compelled to work more than six davs in any one year, except m 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. 3018. No persons exempt from working but by board of supervisors. B. C, c. lOl, s. 13. 1784, c. 337, ss. 8, 9. 1836, c. 36, ss. 1, 3. No person between the ages prescribed shall be exemp- ted from working upon the public roads, except such as shall be exempted by the general assembly, or by the board of supervisors of the township, on account of per- sonal infirmity; of which the said board shall be the sole judge. Forbes v. Hunter, 1 Jon., 231; State v. Cauble, 70—62. Sec. 3019. When overseer to summon hands to work roads ; notice ; duty of persons summoned ; proviso. 1879, c. 83, s. 5. 1880, c. 30, s. 3. The overseer of the road shall, as often as the road shall require, subject to the hmitation in the preceding section, summon the hands of his section to work on the road, but the said hands shall not be required to work continuously for a longer time at any one time than two days, and at least fifteen days shall intervene between workings, except in case of special damage to the road, resulting from a storm. The notice shall be at least three days before the day named for the work, and shall state the hour and the place for the meeting of the hands, and what implement the hand shall bring with him. Every person hable to work on the load who has been so summoned shall appear at the time and place 776 EOADS, FEERIES AND BRIDGES. [Chap. 50. named, and with the implement directed, and shall work on the road under the direction of the overseer until dis- charged by him : Provided, that no hand shall be required to work for a less time than seven hours nor a longer time than ten hours in any one day. Any person sum- moned as aforesaid who shaU, by twelve o'clock of the day preceding the one appointed for work on the road, pay to the overseer the sum of one dollar shall be relieved from working on the road for one day. The money thus collected by the overseer shall be by him applied on the working and repairing of the road: Provided, further, that any person who shall furnish one able-bodied hand as a substitute, with the implement directed, shall be held to have complied with this chapter. Sec. 2020. Failure to attend and work misdemeanor; fine and costs. K. C„ c. 101, s. 11. 1817, c. 935, s. 2. 1825, c. 1287. 1879, c. 82, s. 6. Any person liable to work on the road who shaU fail to attend and work as hereinbefore provided when sum- moned so to do, unless he shall have paid the one dollar as aforesaid, shall be guilty of a misdemeanor, and fined not less than two dollars nor more than five dollars, or imprisoned not exceeding five days, or both, and if any defendant shall be unable to discharge the judgment and costs that may be recovered against him, the costs shall be paid by the county. State V. Cauble, 70—63; State v. James, 74—893; State v. Luther, 77— 493; State V. Craige, 81—588; State v. Craige, 83—668. Sec. 2021. Overseers to report to board of supervisors; report to be verified; warrant to issue ag^ainst road hand failing to perform duty. 1879, e. 82, s. 7. 1880, c. 30, s. 4. Every overseer shall M each and every meeting of the board of supervisors of his township make report to them of the present condition of his road, of the number of days worked on his section since last meeting, of the number of hands who attended and worked each day, of the number and names of hands who failed to attend and work; whether or not they were legally summoned, and whether or not they paid the one dollar as provided. The said overseer shall before some person authorized to administer an oath make written affidavit that the report is true and correct. Upon this report sworn to as afore- said, if it shall appear that any of the hands, after being legally summoned, have failed to attend and work on Chap. 50.] ROADS, FERRIES AND BRIDGES. 777 •.:i .,;! nr.ri that thpv did iiot pav the one dollar, thea ™t to the boaS oAupervisors, that they may not pS another prosecution for the same offence. . q^r. ^022 Overseers to report all moneys collected to ''" ^peTvls^rsriilure to discUarge duties misdemeanor; duty of chairman of board of supervisors. 1879, c. »-, The^Wd overseers shall at the meeting <^J^IfP^^^ npqro of an adioinin? township, who shall immeaiaieiy FssJfeWs warrant forihe arrest of the said overseer, and proceed to try him for the offence. Sec 2023. Jurisdiction of supervisors oyer «*jt^«y^; jurisdiction of board of county commissioners over roads ; proviso; appeal. 1879, c. »-., s. ^. , „ ^„f The board of supervisors shall have the right to lay out and disconl'uecirtways, and theboard of commis^^^^ of the county only shall have the right to lay out ana establish and^ discontinue pubhc roads : Provided, that Slayng^tand establishing f^^s and cartways and for the^urpose of assessing damage ^o p ope^ty^y reason of the same, no greater number of imoij than five shall be summoned or be required^ Sp deS^^ °^ ther, that either party may appeal ^ X. ^J^^gTone^s of the board of supervisors to the board of commissioneis ot the county. State V. Purify, 86-681. 778 ROADS, FERRIES AND BRIDGES. [Chap. 50. Sec. 2024. Board of supervisors to report to superior court ; clerk to deliver report to foreman of grand jury; misdemeanor; punishment. 1879, c. 82, s. lO. The board of supervisors shaU annually make report to the first term of the superior court of their county after the first Monday in August of the condition of the roads of then- township, and if the meetings provided for m this chapter have been held by said board, the judge holdmg such term of the superior court shall after his charge to the grand jury and before they shall retire to their room call upon the clerk of the court for such reports and they shall then and there be delivered to the foreman of the grand jury; and if any board of supervisors shall tail to make said report or to discharge any other duty imposed by this chapter, they shall be guilty of a misde- meanor, and on conviction thereof shall be fined or imprisoned, or both, in the discretion of the court and the indictment may be either against the board of supervisors, or against the individuals composing it as • justices of the peace. Sec. 2025. Width of roads, causeways, bridges ; proviso. K. C, c. 101, s. 14. 1784, c. 227, s. 2. 1880, c. 30. s. 6. AU roads except such as are causewayed or tlirough cuts shall be not less than eighteen feet wide, clear of trees, logs and other obstructions to the passage of ordinary vehicles, and there shaU be ten feet in width in the centre of the roadway, clear of stumps and runners Where, by the overseers, it may be deemed expedient to make or repair causeways on the same, they shall be at least fourteen feet wide ; and earth, necessary to raise or cover them, shall be taken from either hand, so as to form a drain on each side of the causeway ; and they shall make, of the same width, necessary bridges through swamps and over small streams of water : Provided this section shall not apply to the roads in those counties where there is bylaw a classification of the widths of the roads. Small V. Eason, 11 Ired., 94 ; Collms v. Creecy. 8 Jon., 333. Sec. 2026. Overseers may apportion road among hands but still liable for default. K. C, c. 101. s. 13 1784. c. 227, s. 10. ' The overseer, if requested by a majority of the hands on the road assigned him, may, in his discretion, lay off the road m equal portions for the convenience of the Chap. 50.] ROADS, FERRIES AND BRIDGES. 7Y9 ^Ur^ cViill fini'^h his or their part in a time tZ'^Sl^bytATrTotL. Persons, and by J^vrlfdt.afnSmg"n?f Bsec?ron*all bs a defence t Se ovei'fr, len-pmsecuted to- default coneemmg the condition of the road. Forbes v. Hunter, 1 Jon., 231. OvpVseers may lawfully cut poles and other necessary from any adjomnig land. Collins V. Creecy, 8 Jon., 333. Sec 2028. Owners may petition board of commissioners. % re 101 s. 16. 1818, c. 976, s. 2. The owner of 'the land or timber thus "sed may ffle his ?,StTn?n^^'Stn:?rd-rdr^^^^^^^^^ island to Wilmington. Collins V. Creecy, 8 Jon., 333. sec 2039. Footways and hollow bridges ^^f « J»^«J« ^^^-p^ervisors may order; their oMe^^^^^^^^^^^ E^v^y owsef; of the rokd, when the township board of ™-viIors n ay so direct, shaU cause to be made and wTn repLir for the convenience of travelers on foot 780 EOADS, FEREIES AND BRIDGES. [Chap. 50. commonly used, for the space of ten years next preced- ing any period within three years before presentment made or indictment found for want of such footways or hand-rails, the same shall be conclusive evidence of an order theretofore made by the board, that they shall be erected and kept up, subject to be rebutted only by pro- ducing an order dispensing with them made within three years next before such presentment. Smith V. Harkins, 3 Ireri. Eq., 613. Sec. 2030. Sign-posts at forks of roads to be set up by overseers; penalty for neglect. K, C, c. 101, s. 18. 1784, c. 227, s. 11. 1812, c. 846. Overseers shall cause to be set up, at the forks of their respective roads, a post or posts, with arms pointing the way of each road, with plain and durable directions to the most public places to which they lead, and with the number of miles from that place as near as can be com- puted; and every overseer who shall, for ten days after notice of his appointment, neglect to do so and to keep the same in repaii-, shall forfeit and pay for every such neglect ten dollars. State V. Nicholson, 3 Mur., 135. Sec. 2031. On persons removing or defacing postsor mile- marks. R. C, c. 101, s. 19. 1784, c. 227, s. 11. 1812, c. 846. Any person, who shall wantonly remove, knock down, or deface the said posts, arms, or any mile-mark, shall, for every such offence, forfeit and pay to the state ten dollars, and be guilty of a misdemeanor. Sec. 2032. Overseer to measure and mile-mark roads. B. C, c. 101, s. 20. 1784, c. 227, s. 12. Every overseer of a road shall cause the same to be exactly measured, where it has not already been done, and at the end of each mile, shall mark in a plain, legible, and durable manner, the number of the miles, beginning, continuing, and marking the numbei's in such manner and form as the board of supervisors shall direct; and every overseer shall keep up and repair such marks and numbers of his road. If an overseer shall neglect any of the duties prescribed in this section, for the spo.ce of thirty days, after his appointment to office, he shall for- feit and pay four dollai-s, and the like sum for every thirty days thereafter the said marking may be neg- lected. Chap. 50.] EOADS, FERRIES AND BRIDGES. 781 Sec. 2033. Penalty on overseer for general neglect of duty. K. C, c. 101, s. 21. 1784, c. 227, s. 14. Every overseer who shall neglect to do any other dnty, by this chapter directed to be done, or who shall not keep the roads and bridges cleai' and in repair, or shall let them remain uncleared or out of repair, during the space of ten days, unless hindered by extreme bad weather, shall forfeit for every such offence four dollars, and be liable for such damages as may be sustained: Provided, that nothing in this section shall excuse any neglect of duty by an overseer, as the same is prescribed in any other part of this chapter. Sec. 2034. Board of supervisors, &c., to erect bridges at county expense. K. C, c.lOl, s, 22. 1784, c. 227, s. 6. When a bridge shall be necessary, and the overseer with his assistants cannot conveniently make it, the township board of supervisors, with the concurrence of the board of county commissioners, shall contract for the building, keeping "and repairing thereof, provided the, cost of the same does not exceed five hundred dollars, and the same shall be a charge on the county; and when bridges shall be necessary over any stream which divides one county from another, the commissioners of each shall join in agreement for building, keeping and repairing the same, provided the cost of the same does not exceed five hundred dollars; and the charge thereof shall be defrayed by both counties, in proportion to the number of taxable polls in each. State V. Selby, 83—617. Sec. 2035. Contracts to build bridges binding on county. K. C, c. 101, s. 23. 1784, c. 227, s. 6. Every contract and order by the boards of township supervisors and county commissioners entered into or made as authorized by this chapter for or concerning the building, keeping or repairing bridges, in such manner as to them may seem most proper, shall be vahd against the county. Sec. 2036. Owners of mills and ditcbes on and across roads to keep up bridges; provisos. K. C, c. lOl, s. 24. 1817, c. 941, s. 1. 1846, c. 95, s. 1. 1881, c. 290. It shaU be the duty of every owner of a water-mill, which is situate on any public road, and also of every person who, for the purpose of draining his lands, or for Y82 EOADS, FEEEIES AND BEIDGES. [Chap. 50. any other purpose, shall construct any ditch, drain or canal across a pubhc road, respectively, to keep at his own expense in good and sufficient repair, all bridges that are or may be erected or attached to his mill dam, im- mediately over which a public road may run; and also to erect and keep in repair all necessary bridges over such ditch, drain or canal on the highway, so long as they may be needed by reason of the continuance of said mill, or miU dam, ditch, drain or canal: Provided, that noth- ing herein shall be construed to extend to any mill which was erected before the laying off such road, unless the road was laid off by the request of the owner of the miU: Provided further, that the duty hereby imposed on the owner of the mill, and on the person cutting the drain or canal, shall continue on all subsequent owners of the mill, or other property, for the benefit of which the said ditch, drain or canal was cut: Provided also, that when any ditch or drain originally constructed across any pub- lic road, and bridged for the convenience and safety of the traveling public, has been or may hereafter be en- larged by the owner of adjacent lands to drain his lands, it shaU be the duty of such owner to keep up and in repair all bridges crossing such ditch, drain or canal, and that such charge shall be imposed upon all subsequent owners of the lands so drained, and that any person throwing a bank of dirt in the main road shall be compelled to spread the same. MulhoUand v. Brownrigg, 2 Hawks, 349; State v. Yarrell., 12 Ired.,130; Nobles V. Langly, 66—287; State v. Jones, 74—393. Sec. 3037. Penalty for neglect. K. C, c. 101, s. 25. 1817, 0.941,8.3. 1876-'7, C.90. 1876-'7, c. 311. Every person, who shall fail to perform the duties im- posed upon him by the preceding section, or shall leave out of repair any such bridge, for the space of ten days, unless prevented by unavoidable circumstances, shall be hable for such damages as may be sustained, and more- over shall be guilty of a misdemeanor, and fined not ex- ceeding fifty dollars. Sec. 3038. Ferries and roads, how established, altered or discontinued. R. C, c. 101, s. 3. 1813, c. 863, s. 1. The board of county commissioners shall not establish any ferry, or order the laying out of any public road, or discontinue or alter such road or ferry, unless upon peti- tion in writing. And unless it appear to the board that every person, over whose lands the said road may pass, Chap. 50.] EOADS, FEREIES AND BRIDGES. 783 or whose ferry shall be within two miles of the place at which another ferry is prayed to be established, shall have had twenty days' notice of the intention to file such petition, the same shall be filed in the office of the clerk of the board until the succeeding meeting of the board, and notice thereof be posted during the same period at the court house door; at which meeting the board shall hear the allegations set forth in the petition; and if suf- ficient reason be shown, the board shall appoint and set- tle or discontinue the said ferry, or order the laying out, or discontinue or alter the said road, as the case may be. CaiTV. Hairston, 1 C. L. Repos., 349; Harris v. Coltraine, 3 Hawks, 313; Little v. May, 3 Hawks, 599; State v. Spaiuhour, 3 D. &. B., 547; Woolard v. McCullough, 1 Ired., 443; Pieicy v. Morris, 2 Ired., 168; Leath V. Summers, 3 Ired., 108; State v. Shuford, 6 Ired., 162;WeIch v. Piercy, 7 Ired., 365; Davis v. Hill, 11 Ired., 9. Sec. 2039. Board may order how costs shall be paid; ap- peal; controversies concerning roads, &c., carried by appeal to superior court to be tried before jury. K, C., c. 101, s. 3. 1813, c. 862, s. 1. 1879, c. 268. _ In all applications provided for in the preceding sec- tion, the board of county commissioners may direct how and by whom the costs shall be paid; and any person may appeal to the superior court at term time, and if any per- son shall appeal from the board on such petition, he shall give bond to the opposing party as provided in other cases of appeal, and the superior court at term shall hear the whole matter anew; and where any proceeding is in- stituted to lay out, estabhsh, alter or discontinue public roads or to appoint and settle ferries, and the said proceed- ing is carried to the superior court in term time by ap- peal or otherwise, the parties to said proceeding shall be entitled to have every issue of fact joined in said pro- ceeding tried in the superior court in term time by jury, and from the judgment of the superior court either party may appeal to the supreme court as is provided in other cases of appeals in this code. Ashcraft v. Lee, 79—34. Sec. 2040. Roads, how laid out. B. C, e. 101, s. 4. 1784, c. 227, s. 13. 1813, c. 862, s. 1. 1879, c. 82, s. 9. All roads shall be laid out by a jury of five freehold- ers, to the greatest advantage of the inhabitants, and with as Little prejudice as may be to lands and enclosm-es; which laying out, and such damage as private persona 784 EOADS, FERRIES AND BRIDGES. [Chap. 50. raav sustain, shall be done and ascertained, by the sanae j5ry on oath; and all damages by them assessed shaU be deemed a county charge. Ashcraf t v. Lee, 79—34. sjp.- 2041. When road changed, how received. R. C, c.l01,s.5. 1784, c. 337, s. 13. 1813, c. 863, s. 1. Whenever, upon petition of any person, a road shall be changed and, as a condition thereof, it shall be requu-ed bv the board, that he put the proposed road in good con- dition, he may, at anytime thereafter, tender the same to the overseer, who shall receive it, if it be in such condition as is required for highways; and if not, shall reject it; and in either case he shall report and certify the fact to said board where the same may be considered; and said board shall hear all persons interested in the matter of re- ceiving or rejecting the road; and the decision of the board shall be conclusive as to the condition ot the road; but the old road shall not be closed until it be discon- tinued by order of the board. Sec 3043. How persons may turn roads on their own lands. K. C, c 101, s. 6. 1834, c. 33. In addition to the mode prescribed in the preceding section, for turning; roads, the foUowing method may be observed by any one who desires to change a road from one part of his land to another part, namely: Such per- son shall lay out the same, and after putting it in such good condition as highways are directed to be, shall apply to a iustice of the peace, who thereupon shall notify the overseer of the road, and summon two freeholders to meet on the premises at a given day; and the said tree- holders, being duly sworn, shall, with the justice, view and examine carefully the road which is proposed in place of the other, and all matters and facts tending to show whether the change should be allovyod. Ihey shall report in writing subscribed by them the result of their consideration to the next meeting of the board of supervisors, which may confirm or reject their report: Provided, that such justice and freeholders shall be dis- interested in the land, and not of km or affinity to the applicant. state V. Spaiabour, 2 D. & B., 547; Galling v. Livcrman, 1 Ired., 68; Kennedy v, Erwin, Busb.. 387; Brodnax v. Groom. 64—344, Chap. 50.] ROADS, FERRIES AND BRIDGES. 785 Sec. 2043. Board of supervisors in ten days to furnish constable with orders appointing overseers; constable to apply to board for orders, and serve them within twenty days, penalty on board and constable for neg- lect. B. C, c. lOl, s. 8. 1813, c. 845, ss. 1, 2. 1813, c. 859, ss. 1, 2. The board of supervisors of the township, within ten days after the rise of the board, shall furnish the con- stable with two copies of each order appointing overseers of roads, that may have been made during the sitting of the board And the constable shaU apply at the office ot the board within ten days after the rise of every meet- ing of the board for such orders, and, on receiving them, shall within twenty days, serve each overseer of roads with'a copy of the order, or leave the same at his usual habitation; and the other copy shall be returned to the next meeting of the board of supervisors, with the date of its reception by him, and the date of the service, in- dorsed thereon, or the date when it was left at the resi- dence of the said overseer. And if either the board or constable shall fail to perform any duty enjoined by this section he shall forfeit ten dollars to the county, to be recovered at any time, by notice to show cause at the in- stance of the solicitor, who shall prosecute the same m the name of the state. Hathaway v. Hinton, 1 Jon., 245. Sec. 2044. Notice, how served. R. C, c. 101, s. 10. 1842, c. 65. When an overseer shall not be able to personally notify the hands three days before the day appointed for work- ing the road, he shall leave at the house of each hand a written summons, specifying the day on which they are required to attend, the place of the road to be worked, and the kind of tools to be brought or used; and the said written summons, left as aforesaid, shall be deemed suf- ficient notice to the hands required to be notified; and all penalties recovered by an overseer, for default of working on the road, shall be apphed by him to the re- pair of the road of which he is, or may have been over- seer. state V. Everit, 2 C. L. Kepos., 633; Forbes v. Hunter, 1 Jon., 231. Sec. 2045. Toll-bridges allowed by board of commission- ers, when; builders to keep them in repair, or forfeit toll and be indicted. R. C, c. 101, s. 26. 1784, c. 227, s. 7. 1817, c. 939, s. 2. 1817, c. 940, s. 3. Whenever, from the rapidity or width of any stream. 786 EOADS, FERRIES AND BRIDGES. [Chap. 50. it may be too burdensome to build aud keep up a bridge across the same, at the expense of those who are taxable for that purpose, the board of commissioners of the county, or counties, chargeable therewith, may jointly and severally (as the case may be) contract for the building thereof, by allowing the builder to take tolls, at such rate and for such time, on all persons, horses, car- riages, and other things passing over the bridge, as may be agreed on between the board of commissioners and the builder; which tolls shall be common to all persons. And such bridges shall be built in the manner the board or boards may direct, and shall be kept in good repair by the builder, his heirs and assigns, during the time the toUs are to be enjoyed; and in default of complying with the contract, the builder, or others who may succeed to his rights and enjoy the tolls, shall be guilty of a misde- meanor. Smith V. Harkins, 3 Ired. Eq. , 613. Sec. 204:6. Tolls of ferry regulated by board of commis- sioners; penalty for refusing to keep it up. R. C., c. 101, s. 37. 1779, c. 10, s.s. 8, 9. Ired. Bev., c. 160, s. 2, new Bev. The board of commissioners of each county shall, once a year, or oftener if necessary, at the meeting to be held next after the first day of January, rate the prices of such ferries as shall be kept within their respective coun- ties; and any ferry keeper who shall ask, demand, or receive a greater price for ferriage than shall be rated by the board of commissioners, shall forfeit and pay five dollars for every offence to the party aggrieved. And every person who owns a public ferry, and refuses to keep it up at the rates allowed by the board, shall for every such offence forfeit five dollars. Smith V. Harkins, 6 Ired. Eq., 613. Sec. 2047. Owner may build toll-bridge at his ferry; draw- bridge, when made. B. C, c. 101, s. 28. 1806, c. 700. In aU cases, where the proprietor of a ferry shall prefer building a good and substantial bridge over any water course instead of keeping a ferry, he may do so; and may claim and hold such bridge under the same rights, and in the same manner, by which the ferry is claimed and held, and under the same rules, regulations, resti-ictions and penalties as other toll -bridges: Provided, that no more toll shaU be demanded for passing any such bridge Chap. 50.] KOADS, FERRIES AND BRIDGES. T87 than is granted by law for the ferriage, unless by agree- ment with the board of commissioners: Provided further, that, in all such bridges, the proprietor shall erect a draw, where the free navigation of the stream may I'equire it. Smith V. Harkins, 3 Ired. Eq., 613; Lea v. Johnston, 9 Ired., 15; Davis V. Jerkins, 5 Jon. , 290. Sec. 2048. Bonds of owners of ferries and toll-bridges to be taken by board of commissioners; persons injured may recover damages. B. C, c. 101, s. 29. 1784, c. 227, s. 15. The board of commissioners of each county shall com- pel every person that. may own a toll-bridge, or keep a public ferry, within the county, to give bond with good sm-ety, in the sum of one thousand dollars, payable to the state of North Carolina, conditioned that he will con- stantly keep such bridge in good repair, or, as the case may be, provide and keep good and sufficient boats, or other proper craft, always to be well attended, for the passing of travelers or other persons, their horses, car- riages and effects; and will indemnify and save harmless every person who may be endamaged, by reason of any default in his undertaking. And if any person shall re- ceive damage, because such ferryman or keeper of a toll- bridge shah not have complied with the conditions of his bond, he may bring suit thereon in the name of the state, and recover his damages. And if any person shall be de- tained at any public ferry, by reason of the ferryman not having sufficient boats or other proper crafts and hands, or by his neglecting to do his duty in any other lespect, he may recover before a justice of the peace, against such ferryman, the sum of ten dollars, as a penalty for every such default or neglect. Sec. 2049. Penalty for keeping ferry, &c., without autho- rity; proviso for mail carriers. B. C, c. 101, s. 30. 1764, c. 72, s. 1. 1787, c. 273. 1883, c. 381. If any unauthorized person shall pretend to keep a ferry or to transport for pay any person or his effects, within five miles of any ferry on the same river or water, whicli theretofore may have been appointed, he shall for- feit and pay two dollars for every such offence, to the nearest ferryman: Provided, that any person who may contract for carrying the mail, may keep a boat for the sole purpose of transporting the same, and such passen- gers as may travel in the coach therevk'ith, across any 788 KOADS, FERRIES AND BRIDGES. [Chap. 50. ferry; but such contractor shall not transport across such ferry any other passengers than such as travel by the coach. Taylor v. R. R. Co., 4 Jon., 277; Carrow v. Toll Bridge Co., Phil., 118; Pugli V. R. R. Co., Phil., 359; Barrington v. Ferry Co., 69—165. Sec. 2050. Fastening vessels to float-bridge; penalty. K. C, c. 101, s. 31. B, S., c. 104. 1858-'9, c. 58, s. 1. No person shall fasten any decked vessel to a float bridge, on pain of forfeiting fifty dollars; which in the case of a bridge that crosses a county hne, may be re- covered in either county. Sec. 2051. Railroad companies to keep draws in bridges. K. C, c. 101, s. 32. 1846, c. 51, ss. 1, 2. Railroad, plank-road, and turnpike companies, erecting bridges across vi^ater courses, shall attach and keep up good and sufficient draws, by which vessels may be al- lowed conveniently to pass. Sec. 2052. Owners of steamboats, &c., to notify owners of bridges to construct draws; penalty for neglect. K. C, c. 101, s. 33. 1864, c. 51, ss. 1, 2. Owners of steamboats or other craft, who may intend to navigate any river or creek over which any person may have a bridge, may give three months' notice thereof in one of the pubhc journals of the state, published near- est the river or creek intended to be navigated, and to the owner of said bridge, to construct a draw of sufficient width to allow the passage of the boat which is to be used; and if the owner of said bridge shah not, within three months from the date of the notice, construct the required draw, he shall forfeit and pay the person so not- ifying, if he be thereby prevented from navigating the water course, fifty dollars; and shall be further subject to the like penalty, under like circumstances, for every three months' default thereafter. Sec. 2053. Counties to erect draws where necessary. B. C, c. 101, s. 34. The county or counties which may erect bridges shall, by their boards of commissioners, provide and keep up draws in all such bridges, where the same may be neces- sary to aUow the convenient passage of vessels. Chap. 50.] EOADS, FERRIES AND BRIDGES. 789 Sec. 2054. Kailroad companies, &c., to keep bridges over county roads; penalty for failure. B. C, c. 101, s. 35. 1838, c. 5, ss. 1, 2, 3, 4. Railroad, plank-road, and turnpike companies, each, shall keep up, at their own expense, all bridges on or over county, or incorporated roads, which they have sev- erally made it necessary to be built, in establishing their respective roads; and on failure to do so, shall be guilty of a misdemeanor, and fined; and execution may issue for fine and costs; and shall forfeit and pay twenty -five dollars to any person who may sue for the same. State V. R. R. Co., 74—143. Sec. 2055. Duty of solicitors to pi-osecute for in.iuries to bridges. K. C, c. lOJ, s. 36. 1846, c. 11, ss. 1, 2. The solicitors of the superior court are authorized and directed to institute suits in the name of the state, in the counties wherein the injuries may be done, for the re- covery of damages, against all persons, who shall wilfully or negligently injure any public bridge belonging to or situate in any county or counties, by forcibly running any decked vessel, boat or raft against the same; by cut- ting trees or timber in the rivers or ci-eeks above such bridges, or by any other manner or means whatsoever. In case the injury is done to two counties, the action may be brought in either for the entire damage; and the dam- ages which may be recovered shall be for the use of the county or counties injured; and if the plaintiff fail, the costs shall be paid by the county or counties for whose use the suit is brought, and in the same proportion in which the recovery would be divided. Sec. 2056. Cart-way,s, in what cases, and bow obtained; proceedings tberefor, R. C, c. 101, s. 37. 1798, c. 608, s. 1. 1822, c. 1139, s. 1. 1879, c. 258. If any person be settled upon or cultivating any land, to which there is leading no public road, and it shall ap- pear necessary, reasonable and just that such peison should have a private way to a public road over the lands of other persons, he may file his petition before the boaid of supervisors of the township praying for a cartway to be kept open across such other persons' lands, leading to some public road, ferry, bridge or public landing; and upon his making it appear to the board that the adverse party has had ten days' notice of his intention, the board shall hear the allegations of the petitioner and the objec- tions of the adverse party or parties, and if sufficient 790 EOADS, FERRIES AND BRIDGES. {Chap. 50. reason be shown, shall order the constable to summon a jury of five freeholders, to view the premises, and lay off a cart-way not less than fourteen feet wide, and assess the damages the owner of such land may sustain thereby; which, with the expense of making the way, shall be paid by the petitioner; and the way shall be kept open for the free passage of all persons, on foot or horseback, carts and wagons: Provided, that, if the notice aforesaid shall not have been given, the board shall cause such petition to be filed with their chairman until their next meeting, when they shall proceed to hear and determine the same, and the petitioner or the adverse party may appeal from the order of the supervisors to the board of commissioners of the county, and from the order of the board of commissioners to the superior court at term, when the issues of fact shall be tried by a jury, and from the judgment of the superior com-t to the supreme court, as in other cases of appeal. And all costs accumulated after the order of the board of supervisors shall be paid by either party, as the court may direct. Lea V. Johnston, 9 Ired., 15; Caroon v. Doxey, 3 Jon., 23; Jacoclcs v. Newby, 4 Jon., 266; Burgwyn v. Lockhart, Wiust., 269; Link v. Brooks, Phil., 499; Boyden v. Achenbach, 79—139; State v. Purify, 86—681. Sec. 2057. May be changed or discontinued and gates or bars erected, &c.; penalty for injuring them. R. C, c. lOl, s. 38. 1798, c. 508, ss. 1, 3, 3. 1834, c. 16, s. 1. Cart- ways, laid off according to the pi'ovisions of this chapter, may be changed or discontinued upon applica- tion by any person concerned, under the same rules of 'proceeding as they may be first laid off, and upon such terms as to the board of supervisors shall seem equitable and just. And any person thi'ough whose land a cart- way may pass, may erect gates or bars across the same; and if any person shall leave open, break down, or other- wise injure such gates or bars, he shall forfeit and pay, for every such offence, ten dollars to the person erecting the sarhe or his assigns of the land; and if the offence shall be maliciously done, he shall be guilty of a misde- meanor. Lea v. Johnston, 9 Ired., 15; Jacocksv. Newby, 4 Jon., 266; Plimmons V. Frisby, Winst., 201. Sec. 2058. License to erect gates across highways, how obtained. R. C, c. 101. s. 39. 1834, c. 16, ss. 2, 3, 4. Any person desiring to erect a gate aci'oss a public road Chap. 50.1 EOADS, FEERIES AND BRIDGES 791 may file his petition before the board of supervisors of the township where the road hes; whereupon publication shall be made at the court house until the next succeed- ing meeting, of such application, specifying the road, the place for the gate and name of the petitioner; and all per- sons interested in the convenient traveling or transporta- tion on said load, shall have leave to appear and defend, demui-, 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 peti- tioner, at his cost, to erect a gate as prayed for. Sec. 2059. Who exempt from working on roads. R. C, c. 101, s. 40. The following persons shall be exempt from working on roads, namely: justices of the peace, constables, ferry- men, keepers of public grist mills, county commissionei-s, teachers and pupils of schools and lock-keepers on public canals. State V. Craige, 81—588. Sec. 2060. Exi>enses borne by whole people of county, when. 1869-'70, c. 219. The expense of building and keeping up public bridges in the several counties shall be borne by the whole peo- ple of each, and not by the people of the township sepa- rately, in which such bridges may be situated; and it shall be the duty of the commissioners to adjust this burden equally among the people of their respective counties, and they shall exercise a due supervision over the action of the respective boards of supervisors of the townships, so as to prevent the board of any township from estab- lishing any unnecessary number of bridges in their re- spective townships. State V. Selby, 83—617. Sec. 2061. Koad steamers may run upon public roads. 1870-'71, c. 162. It shall be lawful for any person to run and use traction engines^and road steamers upon the public roads in North Carolina. Sec. 2062. Boards of supervisors to lay out, &c., church roads. 1872-'3, c. 189, ss. 1, 5. The board of supervisors in each township is authorized to order the laying out of any and all necessary roads to and from any church or other place of pubUc worship in 792 EOADS, FERRIES AND BRIDGES. [Chap. 50. their said townships, to discontinue such roads when they may be found useless, and to alter the same so as to make them moi'e useful, and the right of way herein provided for shall terminate whenever the church or place of wor- ship shall cease to be used as such. Sec. 2063. Petition for the same. 1872-'3, c. 189, s. 2. The said board of supervisors shall not order the laying out of any such road or discontinue or alter the same ex- cept upon petition, in writing, nor shall they hear any such petition, unless it may be made to appear that every person over whose lands the said road may pass shall have had ten days' notice of the intention to file such petition, by personal service of notice in writing, or if the owner be unknown or there be no owner, agent or attorney of such owner resident in this state, then by notice thereof posted up at the court house door of the county in which the township is situate and at two public places in the township for the space of ten days; and upon the hear- ing of the petition, if sufficient reason be shown, the said board of supervisors shall order the laying out, shall dis- continue or alter the said road as the case may be, and from their determination any party dissatisfied may ap- peal as is provided in this chapter in the section directing the laying off of cart-ways. Sec. 2064. Manner of laying out roads. 1872-'3, c. 189, s. 3. All roads provided for in the two preceding sections shall be laid out to the greatest advantage of the inhab- itants and with as little prejudice as may be to lands and enclosures within twenty days from the notification of their appointment by five disinterested freeholders, to be appointed by the said board of supervisors; and such damage as any individuals may sustain shall be ascer- tained by the said freeholders, and a report thereof with the proceedings had by them, shall be made to the said board of supervisors; and all damages so assessed by the freeholders shall be paid by the petitioners, and until paid there shall be no confirmation of the i-eport of the freeholders, and such laying out shall be of no effect. Sec. 2065. Obstruction of road, &c., a misdemeanor. 1872-'3, c. 189, s. 6. 1883, c. 383. If any person shall wilfully alter, change or obstruct any highway, cartway, mill road or road leading to and from any church or other place of public worship, whether Chap. 51.] SHERIFFS. Y93 the right of way thereto be secured in the manner herein provided for or "by purchase, donation or otherwise, such person shall be guilty of a misdemeanor, and fined or im- prisoned, or both. Any person who shall hinder or in any manner inter- fere with the making of any road or cartway laid off according to this chapter shall be guilty of a misdemeanor, and punished by fine or imprisonment, or both, atthe dis- cretion of the court. State V. Davis, 68—297; Boydea v. Achenbach, 79—539; State v Midgett, 85—538; State v. Purify, 86—681. CHAPTER FIFTY-ONE. SHEEIPFS. Section. 2066. Board of countycommissioners to take bonds. 2067. Who iaeligible to ofHce of sheriff. 2068. Sheriff ineligible who fails to settle public dues. 2069 Who may not serve as sheriff. 2070. Sheriff shall renew bonds an- nually; failure, to create va- cancy. 2071. Sheriff removed from oiHce; duty of coroner in such case. 2072. Coroner to give bonds and take oaths when called to act as sheriff. 2073. Bond of sheriff ; form of bond for execution of process. 2074. "When board to require a justi- fication of bonds, &c. ; notice to sheriff; his failure to appear or justify, &c. , board to elect another. 2075. Board of commissioners liable for loss. 2076. Sureties liable for fines, &c. 2077. May resign office to board. 34 Section. 2078. Sheriffs, &c., of Hyde and Carteret may serve process on shipboard between Ocracoke and Portsmouth. 2079. Sheriff to execute all process and writs from courts; penalty for neglect; penalty for false return. 2080. Sheriff to pay over to plaintiff immediately, &c. 2081. To give receipt for process, which shall be evidence, &c. 2083. To take no obligation of any in custody but as payable to himself as sheriff, &c. , nor un- lawful fees. 2083. Permitting escape of one in execution, liable in action for the debt. 2084. Not to farm his ofiBce. 2085. To have custody of jail. 2086. To diligently collect claims. 2087. To furuisli grand jury with a list of retailers of spirituous liquors; penalty for omission. 2088. Outgoing sheriff subject to Section. 2090. How paid. 2091. Duty of sheriff. 2093. Publication of delinquent tax- payers required. 794 SHEEIFFS. [Chap. 51. Section. penalty for not executing pre- cepts in certain cases. 2089. Compensation for bringing convicts to penitentiary. [See Constitution, Art. 4, s. 30.] Sec. 2066. Board of county commissioners to take bonds. 1868, c. 20, s. 33. 1876-'7, c. 376, s. 5. The board of county commissioners in every county shall take and approve the official bonds of the sheriffs, which they shall cause to be registered and the originals deposited with the clerk of the superior court for safe keeping. Said bonds shall be taken on the first Monday of December next after the election of sheriffs. McLean v. Buchanan, 8 Jon., 444; State v. Lowrance, 64—483; State v. Howell, 65—61. Sec. 3067. Who ineligible to office of sherifl". R. C, c. 105, s. 5. 1829, c. 5, s. 6. 1830, c. 25, s. 3. No person shall be eligible to the office of sheriff", who is not of the age of twenty -one years, and has not resided in the county in which he is chosen, for one year im- mediately preceding his election. Hargrove v. Dunn, 73^595. Sec. 3068. Sheriff inelig^ible -who fails to settle public dues. R. C, c. 105, s. 6. 1806, c. 699, s. 2. 1830, c. 25, s, 2. No person shall be eligible to the office of sheriff in any county, who theretofore has been sheriff of such county, and hath failed to settle with and fully pay up to every officer, the taxes which were due from him; nor shall any board permit such former sheriff to give bonds for, or re-enter upon the duties of the office, until he has pro- duced before the board the receipt in full of every officer for such taxes. State V. Dunn, 73—595; McNeill v. Green, 75—329. Sec. 2069. Who may not serve as sheriff. R. C, c. 105, s. 7. 1777, c. 118, ss. 2,4. No member of the general assembly, nor anv practicing attorney, shall hold tlie office of sheriff'. Sec. 20 7 O. Sheriff shall renew bonds annually ; failure, to create vacancy. R. C, c. 105, s. 9. 1839, c. 5, s. 5. 1876-'7, c. 376, s. 5. The sheriff shall renew his bonds annually on the first Chap. 51.] SHERIFFS. 795 Monday in December, and produce the receipts in full from the state treasurer, county treasurer, and other per- sons, of all moneys by him collected, or which ought to have been by him collected, for the use of the state and county, and for which he shall have become accountable; and a failure of the sheriff to renew his bonds, or to ex- hibit the aforesaid receipts, shall create a vacancy. Vann v. Pipkin, 77—408; Sneed v. Bullock, 80— 132; Worley v. Smith, 81—304. Sec. 2071. Sheriff removed from office; duty of corouer in sucli case. R. C, c. 105, s, 1 1. 1 829, c. 5, s. 8. / If any sheriff shall be convicted of a misdemeanor in office, the court may at their discretion, as a part of his punishment, remove him from office; and on any va- cancy in the office, created by this or any other means, the coroner of the county shall execute all process di- rected to the sheriff, until the first meeting of the county commissioners next succeeding such vacancy, when the board shall elect a sheriff to supply the vacancy for the residue of the term, who shall possess the same qualifi- cations, enter into the same bonds, and be subject to re- moval, as the sheriff regularly elected; and should the board fail to fill such vacancy, the coroner shall con- tinue to discharge the duties of sheriff until it shall be filled. Mitchell V. Ward, 6 Jon. Eq., 66; Worley v. Smith, 81—304. Sec. 2072. Coroner to give bonds and take oaths when called to act as sherift'. R. C, c. 105, s. 12. 1829, c. 5, s. 9. Any coroner called to discharge the duties of sheriff shall, before he enters thereon, take the same oaths, and enter into the same bonds that may be required of sher- iffs; and the first appointed coroner in each county shall be considered the coroner to discharge the duties of the sheriff, and the proceeding shall be entered on record by the clerk of the board of county commissioners. Yeargin v. Bilcr, 83—348. Sec. 2073. Bonds of sheriff; form of bond for execution of process. R. C, c. 105, s. 13. 1777, c. 118, s.l. 1823, c. 1223. 1879, c. 1 09, s. 1. The sheriff shall execute three several bonds, payable to the state of North Carolina, as follows: one condi- tioned for the collection, payment and settlement of the county, poor, school and special taxes in a sum double 19Q SHERIFFS. [Chap. 51. the amount of said taxes for the previous year; one for the collection, payment and settlement of the public taxes, as required liy law, in a sum double the amount of said taxes for the previous year; Provided, tbat the amount of neither of said bonds shall be I'equired to be more than fifty tliousand dollars. And the amount of the third bond, for the due execution and retuin of process, payment of fees and monej^s collected, and tlie faithful execution of his office as sheriff, shall be not less than five thousand dollars nor more than fifteen thousand dollars, in the discretion of the board of county commis- sioners, and shall be conditioned as follows: The condition of the above obligation is such, that whereas the above bounden is elected and appointed sheriff of county; if, therefore, he shall well and truly execute and due return make of all process and precepts, to him directed, and pay and satisfy all fees and sums of money, by him received or levied by virtue of any process, into the proper office, into which the same, by thetenor thereof, ought to be paid, or to the person or persons to whom the same shall he due, liis, her or their executors, administrators, attorneys, or aeenis, and in all other things well, truly and fuitlifully execute the said office of sheriff, during bi» continuance therein, then the above obligation to be void: otherwise to re- main in full force and effect. Patterson v. Murray, 8 Jon., 278; Eaton v. Kelly, 73—110. Sec. 2074. "When board to require a. ju.stification of bonds, &c.; notice to sheriff"; liis failure to appear or justify, &c., board to elect another. 1879, c. 109, s. 2. It shall be the duty of the board of county commis- sioners whenever they shall be of opinion that "the bonds- of the sheriff of their county are insufficient, to notify said sheriff in writing to appear within ten days and give other and better sureties, or justify the sureties on his bonds; and in case such sheiift' .shaU fail to appear on notice, or fail to give sufficient bonds, or to justify his bonds, it shall be the duty of said board to elect forthwith some suitable person in the county as sheriff for the unexpired term, and who shall give proper and lawful bonds and be sub- ject to like obligations and penalties. state Bank v. Twitly, 3 Hawks, 5; Rhodes v. Vaughan, 3 Hawks, 167; Chambers v, Witherspoon, 3 Hawks, 43; Cameron v. Campbell, 3 Hawks, 285; Crumpler v. Oovernor, 1 Dev., 52; Governor v. Bart, 1 Dev., 65; Governor v. Eastwood, 1 Dev., 157; Governor v. Matlock, 1 Dev., 214; Governor V. McAflee, 2 Dev., 15; Slade v. Governor, 3 Dev., 8G5; While V. Miller, 3 D. & B., 55, Jones v. Montfort, 3 D. & B., 73; Governor v. Harrison, 4 D. & B., 461; State v. Roane, 3 Ired,, 144; McLin v. lliirdie, 3 Ired., 407; State v. McAlpin, 6 Ired., 347; State v. Woodside, 7 Ired., 296; State v. Long, 7 Ired., 379; State v. Woodsidcs, 8 Ired., 104; State v. Long, Sired., 415; Ellis v. Long, 8 Ired., 513; State v. McTnto.'^h, 9 Ired., 307; State V. Woodside, 9 Ired., 496; S'ate v. Bradhurst, 10 Ired., 229; Lindsay Chap. 51.] SHERIFFS. 79T V. Dozier, Busb., 275; McLean v. Bucbanan, 8 Jon., 444; Euggins v. Ilin- son, Phil., 136; State v. Lowrance, G4— 483; State v. Howell, 65—01; State Y. Briggs, G5— 159; State v. Tapscott, 68—300; Sikes v. CommissioDers of Bladen, 73—84; Wood v. Cherry, 73—110; State v. Clarke, 73—355; Bi-umble v. Brown, 73—476; State v. McNeill, 74—535; People v. Green, 75—339; Prairie v. Jenkins, 75—545; Prince v. McNeill, 77—898; Com- missioners of Green v. Taylor, 77—404; Vann v. Pipkin, 77—408; Cherry V. Wilson, 78—164; Cherry v. Wilson, 78—166; Prairie v. Worth, 78—169; Jackson v. Maultsby, 78—174; Dixon v. Commissioners of Beaufort, 80 — 118; Sneed v. Bullock, 80—133; Gamble v. Rhyne, 80—183; Worley v. Smith, 81—304. Sec. 2075. Board of commi.HSioners liable for loss. 1808- '9, c. 345, s. 3. If any board of county commissioners shall fail to comply in good faith with the provisions of this chapter, they shall be liable for all losses sustained in the collec- tion of taxes, on motion to be made by tl^e solicitor of the district, and also be guilty of a misdemeanor in office, and, on conviction, shall be fined not less than five hundred dollars, nor more than one thousand dollars. Sec. 3076. Sureties liable for fines, &c. R. C, c. 105, s. 14. 1839, c. 33. The sureties to a sheriff's bond shall be liable for all fines and amercements imposed on him, in the .same man- ner as they are liable for other defaults in his official duty. Evans V. Blalock, 3 Jon., 377; Slier v. McKee, 3 Jon., 378; Eaton v. Kf^Wy, 73—110; Hughes v. Newsom, 86—424; Ellington v. Wicker, 87—14 Sec. 2077. May resign office to board. R. C, c. 105, s. 15. 1777, c. 118, s. 1. 1808,0.752. Every sheriff may vacate his office by resigning the same to the board of county commissioners of his county; and thereupon the board may proceed to elect another sheriff. Sec. 3078. Sheriffs, &c., of Hyde and Carteret may serve process on shipboard between Ocracoke and Ports- month. R. C, c. 105, s. 16. 1846, c. 67. The sheriffs, constables, and other officers of Hyde and Carteret counties, shall have pov^^er to execute process upon any person, on board any vessel lying in the waters between Ocracoke island in Hyde county, and the island of Portsmouth in Carteret county; and for every process so executed, the sheriff shall receive a fee of three dollars, and the constable, for like service, three dollars. T98 SHERIFFS. [Chap. 51. Sec. 2079. Sheriffto e.xecute all process and writs from courts; penalty for neglect; penalty for false return. R. C, c. 105, s. 17. 1777, c. 218, s. 5. 1821, c. IIIO. 1874-'5, c. 33. Every sheriff, by himself or his lawful deputies, shall execute all writs and other process to him legally issued and directed, within his county, or upon any river, bay, or creek adjoining thereto, or in any other place where he may lawfully execute the same, and make due return thereof, under the penalty of forfeiting one hundred dol- lars for each neglect, where such process shall be deliv- ered to him twenty days before the sitting of the court to which the same is returnable; to be paid to the party aggrieved by order of the court, upon motion and proof of such delivery, unless such sheriff can show sufficient cause to the court, at the next succeeding term after the order; and for every false return, the sheriflf shall forfeit and pay five'^iundred dollars, one moiety thereof to the party aggrieved, and the other to him that will sue for the same; and moreover be further hable to the action of the party aggrieved, for damages; and every sheriff and his deputies, and every constable shall execute all writs and other process to him legally issued and directed from a justice's court within his county, and make due return thereof, under penalty of forfeiting one hundred dollars for each neglect or refusal, where such process shall be delivered to him ten days before the return day thereof, to be paid to the party aggrieved by order of the said court, upon motion and proof of such delivery, unless such sheriff or constable can show sufficient cause to the court at a day within three months from the date of the entry of the judgment nisi, of which the said officer shall be duly notified. Douglas V. Auld, 1 C. L. Repos., 500 (113); Holding v. Holding, 2 C. L. Repos., 440 (334); Grumpier v. Glisson, N. C. T. R.. 79 (516); Davis v. Lan- caster, 1 Mur., 255; State v. ArmfieUl, 2 Hawks, 240; Governor v. Matlock, 2 Hawks, 360; Lindsay v. Armfield, 3 Hawks, 548; McKellar v. Bowell, 4 Hawks, 34; Potter v. Sturges, 1 Dev., 79; Governor v. Twitty, 1 Dev., 153; Banner V. McMurray, 1 Dev., 218; Mitchell v. Durham, 2 Dev., 538; Dowell v.Vannoy, 3 Dev., 23; McRae v. Evans, 1 D. & B., 243; Foy v. Williamson, 1 D. & B., 252; Tarkington v. Alexander, 2 D. & B., 87; State v. Benton! 2 D. & B., 190; Farley v. Lea, 4 D. & B., 109; Spruill v. Bateman, 4 D. & B., 489; Governor v. Montford, 1 Ired,, 155; Burgin v. Burgin, 1 Ired., 160; Burgin v. Burgin, 1 Ired., 453; McLin v. Hardie, 8 Ired., 407; Satterwhite V. Carson, 3 Ired., 549; Harper v. Miller, 4 Ired., 34; Lyle v, Wilson, 4 Ired., 220; State v. Allen, 5 Ired., 86; Smith v. Law, 5 Ired., 197; State v, Woodside, 7 Ired., 296; Lemil v. Freeman, 7 Ired., 817; Wilson v. Hampl Chap. 51.] SHERIFFS. V99 ton, 7 Ired., 333; Parks v. Alexander, 7 Ired., 412; Collais v. McLeod, 8 Ired. 221; Halcombe v. Rowland, 8 Ired., 240; Lemit v. Freeman, 8 Ired,, 312-"siierreUv. Shuford, 10 Ired., 200; State v. Edwards, 10 Ired., 242; Patterson v. Britt, 11 Ired., 383; Sloan v. Stanly, 11 Ired., 627; Judge v. Houston, 12 Ired., 108; Hampton v. Brown, 13 Ired., 18; Bowen v. Jones, 13 Ired.,' 25; Patton v. Mann, 13 Ired., 444; Patton v. Marr, Busb., 377; Keav ilelvin, 3Joa.,843; Hyatte v. Allison, 3 Jon., 533; McDowell v. Roberson, 3 Jon., 535; Waugh v. Brittain, 4 Jon., 470; Martin v. Martin, 5 Jon 316- Martin V. Martin, 5 Jon., 349; State v. Latham, 6 Jon., 233; Cockerham v. Baker, 7 Jon., 288; Hassell v. Latham, 7 Jon., 465; McLean V Buchanan, 8 Jon., 444; Tomlinson v. Long, 8 Jon., 469; Albright v. Tap- scott, 8 Jon., 473; McKeithan v. Terry; 64-25; McDowell v. Clarke, 68— 118- Bryan V. Hubbs, 69—423; Brumble v. Brown, 71—513; Piebles v. Newsom, 74-473; Edwards v. Tipton, 77-222; Churchill v. Lee, 77—341; Richardson V. Wicker, 80—172; Finley v. Hayes, 81-368; Boggs v. Davis, 82—27; Yeargin v. Wood, 84—326; Smith v. McMillan, 84—593; Franks v. Sutton, 86—76; Person v. Newsom, 87—142. Sec. 3080. Sheriff to pay over to plaintiff immediately, &c. In all cases where a sheriff has collected money upon an execution placed m his hands, if there be no bona fide contest over the apphcation thereof, he shall immediately pav the same to the plaintiff, or into the office of the clerk of the court from which the execution issued, and upon his failure to make such payment upon demand, he shall be liable to a penalty of one hundred dollars, to be collected as other penalties. Sec. 3081. To give receipt for process, wliicli shall be evi- dence, &c. K. C, c. 105, s. 18. 1848, c. 97. Every sheriff, coroner or constable shall, when re- quested, give his receipt for all original and mesne pro- cess placed in his hands for execution, to the party suing out the same, his agent or attorney; and such receipt shall be admissible as evidence of the facts therein stated, against such officer and his sureties, in any suit between the party taking the receipt and such oificer and his sureties. King V. Hunter, 65—603. Sec. 3083. To take no obligation of any one in custody, but as payable to himself as sheriff, &c., nor unlawful fees. K. C, c. 105, s. 19. 1777, c. 118, s. 8. The sheriff, or his deputy, shall take no obligation of or from any person in his custody, for or concerning any matter or thing relating to his office, otherwise payable than to himself as sheriff, and dischargeable upon the prisoner's appearance and rendering himself at the day 800 SHERIFFS. [Chap. 51. and place required in the writ (whereupon he was or shall be taken or arrested), and his sureties discharging themselves therefrom as special bail of such piisoner, or such person keeping within the limits and rules of any prison; and every other obligatioii taken by any slieriff in any other manner or form, by color of his office, shall be void, except, in any special case, any other obligation shall be, by law, particularly and expressly directed : and no sheriff shall demand, exact, take or receive any greater fee or reward whatsoever, nor shall have any al- lowance, reward or satisfaction from the public, for any service by him done, other than such sum as the court shall allow for ex officio services, and the allowance given and provided by law. Rliodes V. Viiiighan, 2 Hawks, 167; Denson v. Sledge, 2 Dcv., 136; Clark V. Walker, 3 Ired., 181; Heilig v. Lemley, 74—250. Sec. 20S3. Permitting escape of one in execution, liable in action for tlie debt. K. C, c. 105, s. 20. 13 Edw. I., c. 11. 1777, c. 118, ss. 10, 11. When any sheriff shall take or receive and have in keeping the body of any debtor in execution, or upon attachment for not performing a judgment for the pay- ment of any sum of money, and shall wilfully or negli- gently suffer such debtor to escape, the person suing out such execution or attachment, his executors, or adminis- trators, shall have and maintain an action for the debt against such sheriff and his sureties on his official bond, and in case of his death, against his executors or admin- istrators, for the recovery of all such sums of money as are mentioned in the said execution or attachment, and damages for detaining the same. Ellis y. Gee, 1 Mur., 445; Governor v. Matlock, 1 Hawks, 425; Wilkes v. Slaughter, 3 Hawks, 211; Dowd v. Seawell, 3 Dev., 185; Walker v. Vick, 2D. & B., 99; Smallwood v. Wood, 2 D. & B., 356; Williams v. Floyd, 5 Ired., 649; Lash v. Ziglar, 5 Ired., 705; .Jackson v. Hampton, 6 Ired., 34; Wright V. Roberts, 6 Ired., 116; Adams v. Turrentine, 8 Ired., 147; State V. Ellison, 9 Ired., 261; Wliicker v. Roberts, 10 Ired., 485; Jack.son v. Hampton, 10 Ired., 579; Currie v. Worthy, 2 Jon., 104; State v. McKee, 2 Jon., 379; Currie v. Worthy, 3 Jon., 315; Wiley v. Eure, 8 .Jon., .330; Lusk V. Falls, 63—188. Sec. 2084. Xot to farm lii.s office. R. C, c. 105, s. 21. 23 Hen. VI, c. 9. No sheriff shall let to farm in any manner, his county, or any part of it, under pain of forfeiting five hundred dollars; one-half to the use of the county, and the other half to the person suing for the same. Chap. 51.] SHERIFFS. 801 See. 2085. To have custody of jail. R. C, c. 105, s. 32. The sheriff shall have the care and custody of the jail in his county; and shall be, or appomt, the keeper thereof. ^, ., ^„ Turrentine V. Faucett, 11 Ired., 653; Bunting v. Mcllhenny, Phil, o79. Sec. 2086. To diligeutly collect claims. B. C, c. 105, s. 23. 1866, c. 28. . When a claim, within the jurisdiction of a .Ijistice ot the peace, shall be placed in the hands of any sheriff, or his deputy, for collection, he shall diligently endeavor to collect the same. . state V. Long, 7 Ired.. 379. Sec. 2087. To furnish grand jury with a list of retailers of spirituous liquors ; penalty for omission. R. C, c. 105, s. 24. 1825, c. 1272, s. 4. 1850, c. 185. The sheriff shall lay before the grand jury of his county, at each court, as soon as the grand jury shall be assembled, a list of all persons who may have obtained hcense to re- tail spirituous hquors by small measure, within two years previous to said court; which list the foreman of thegrand fury at the close of its session, shall dehver to the clerk for safe keeping; and any sheriff failing to perform the duty aforesaid, shall forfeit and pay to the state ten dol- lars, to be recovered by the prosecuting officer, in the same manner as the penalties against sheriffs for not re- turning process. Sec. 2088. Outgoing sheriff subject to penalty for not executing precepts in certain cases. R. C, c. 105, s. 25. Any sheriff who shall have received a precept, and shall o-o out of office before the return day thereof, without having executed the same, shall forfeit and pay to the party at whose instance it was issued, the sum of one hundred dollars, if such precept shall have remained in his hands for such length of time wherein it might have been well executed bv him; unless the same shall have been thereafter executed by the successor of such sheriff, and returned at the day and place commanded therein; or unless it shall have been delivered over to the suc- ceeding sheriff time enough to have allowed of its being executed by him; and the penalty aforesaid shall be re- coverable by notice against such outgoing sheriff and bis sureties. 802 SHERIFFS. [Chap. 51. Sec. 2089. Compensation tor bringing convicts to peni- tentiary. 1874-'5, c. 107, s. 1. The sheriffs of the several counties shall be allowed two dollars per day and actual necessary expenses for conveying convicts to the penitentiary; also one dollar per day and actual necessary expenses for each guard, not to exceed one guard for every three prisoners, as the sheriff upon affidavit before the clerk of the superior court of his county shall swear to be necessary for the safe conveyance of said convicts. Sec. 2090. How paid. 1874-'5, c. 107, s. 2. Upon filing such affidavit with the auditor, together with a fully itemized account, to be sworn to before the auditor, of the number of days requisite for coming and returning, and of the actual expenses for conveying said convicts and of the guard necessary for their safe keep- ing, the auditor shall be required to audit such verified clanns of the sheriff, and the treasurer to pay all such warrants properly drawn upon him out of any moneys iu the treasury not otherwise appropriated. Sec. 2091. Duty of sheriflF. 1874-'5, c. 107, s. 3. The sheriff shall file with the board of commissioners of his county a copy of his affidavit as to necessarv guard, together with a copy of his itemized account of ex- penses, both certified to by the auditor as true copies of those on file in his office, or be guilty of a misdemeanor. Sec. 2092. Piiblicationof delinquent tax-payers required. 1876-'7, c. 78, ss. 1, 2, 3. Whenever any sheriff or tax-collector shall be credited on settlement with any tax or taxes, by him returned as insolvent, dead or removed, he shall forthwith make publication at the courthouse door, and at least one pub- lic place in each and every township in his county, of a complete list of the names of such insolvent, dead or re- moved delinquents, with the amount of the tax due from each, and the sum total so credited. Such list, by order of tlie board of commissioners, may also be published in any newspaper printed in the county; in which case, the expense of the advertisement, for such time as may be directed, shall he paid by the county. Any sheriff, or tax-collector failing to comply with the provisions of this section, shall be guilty of a misdemeanor, and upon con- viction, shall be fined not less than ten, nor more thau one hundred dollars. Chap. 52.] SUEETY AND PEINCIPAL. 803 CHAPTER FIFTY-TWO. SURETY AND PEINCIPAL. Section. 2097. Surety may cause written notice to be given to creditor; proviso. 2098. Negligence to operate as dis- cliarge; proviso. 2099. Notice to be in writing. 2100. Defendants may show they are sureties; jury or justice to find the facts. 2101. Property of principal to be first levied on and sold. Section. 2093. Summary remedy for surety against principal. 2094. Surety may sue co-surety for ratable part of debt paid for principal. 2095. May dissent from stay of exe- cution, then not liable to surely for the stay ; otBcer, how to col- lect in such case. 2096. Surety, paying debt of de- ceased principal, to have pri- ority as the creditor had against the estate. Sec. 2093. Summary remedy for surety against principal. K, C, c. 110, s. 1. 1777, c. 487, s. 1. Any person, who may have paid money for and on account of those for whom he became sm-ety, upon pro- ducing to the superior court, or any justice of the peace baring jurisdiction of the sum, a receipt, and showing that an ' execution has issued, and he has satisfied the same, and making it appear by sufficient testimony, that he has laid out and expended any sum of money, as the surety of such person, may move the court or justice of the peace, as the case may be, for judgment against his principal, for the amount which he has actually paid; a citation having previously issued against the principal to show cause why execution should not be awarded; and should not the principal show sufficient cause, the court or justice shall award execution against the estate of the principal. Shepherd v. Monroe, 2 C. L. Repos., 634 (437); Woodman v. Mooring, 3 Dev., 237; Hodges v, Armstrong, 3 Dev., 253; Sherwood v. Collier, 3 Dev., 380; Sherrod v. "Woodard, 4 Dev., 360; State Bank v. Locke, 4 Dev., 529; Eason v. Petway, 1 D. & B., 44; Gray v. Bowls, 1 D. & B., 437; Thompson, V. Sanders, 4 D. & B., 404; Linn v. McLelland, 4 D. & B., 458; Wharton v. Woodburn, 4 D. & B., 507; Shaw v. McFarlane, 1 Ired., 216; Brisendine V. Martin, 1 Ired, 286; Davis v. Sanderlin, 1 Ired., 389; Pipkin v. Bond, 5 Ired. Eq.,' 91; Forbes v. Smith, 5 Ired. Eq., 369; Hall v. Whitaker, 7 Led., 353; Ledbetter v. Forney, 11 Ired., 294; Ponder v. Carter, 12 Ired., 242. 804 SURETY AND PRINCIPAL. [Chap. 52. Sec. 2094. Surety may sue co-surety for ratable p.irt of debt paid for priucipal. R. C, e. IIO, s. 3. 1807, c. 732. Where there are two or more sureties for the perform- ance of a contract, and one or more of them may have been compelled to perforju and satisfy the same, or any part tliereof, and the principal shall be insolvent, or out of the state, such surety may have and maintain an ac- tion against every other surety, for a just and ratable proportion of the sum which may have been paid as aforesaid, whether of principal, interest or cost. Shepberd v. Monroe, 2 C. L. Repos., 624 (437) ; Moore v. Moore, 4 Hawks, 358; Smith V. Smith, 1 Dev. Eq., 173; Gomez v. Lazarus, 1 Dev., 205; NorfleetT. Cotton, 3 Dev. Eq., 334; Shcrrod v. AYoodanl, 4 Dev., 360; Moore v. Isley, 3 D. & B. Eq., 372; Hutchins v. JMcCauley, 2 D. & B. Eq., 399; Dawsou v. Petway, 4 D. & B., 396; Tliompson v. Sanders, 4 D. & B,, 404; Osborn v. Cunningham, 4 D. & B., 433; Linu v. McClelland, 4 D. & B., 458; Brisendine v. Martin, 1 Ired., 286; Nowhmd v. Martin, 1 Ircd, 307; Gregory v. Murrell, 2 Ired. Eq., 233; Eaiuey v. Yarborough, 2 Ired Eq., 249; Boll v. Jasper, 2 Ired. Eq., 597; Foley v. Robards, 3 Ired., 177; Allen v. "Wood, 3 Ired. Eq., 386; Jones v. Hays, 3 Ircd. Eq., 502; Daniel v. Joyner, 3 Ired. Eq., 513;Longv. Barnett, 3 Ired. Eq., 631; Pool v. Ebriug- haus, 4 Ired. Eq., 33; Dobson v. Prather, 6 Ircd. Eq., 31; Jones v. Blanton, 6 Ired. Eq., 115; Hall v. Robinson, 8 Ired., 56; Godsey v. Basou, 8 Ired., 260; Poolv. Williams, 8 Ired., 286; Draughan v. Bunting, 9 Ircd., 10; Brandon v. Medley, 1 ,Ion. Eq., 313; Reeves v. Bell, 2 Jon., 254; Lcary v. Cheshire, 3 Jon. Eq., 170; Towe v. Newbokl, 4 Jon. Eq., 212; Kearney v. Harrell. 5 Joa. Eq., 199; Sikes v. Quick, 7 Jon., 19; Hock.aday v. Parker, 8 Jon., 16; Miller v. Miller, Phil. Eq., 85; Derossett v. Bradley, 63—17; Parham v. Green, 64—436; Clark v. Williams, 70—679; Haywood v. Daves, 80—338; Hughes v. Boone, 81—204; Craven v. Freeman, 82—361; Bright V. Lenuon, 83— 183; Pickens v. Miller, 83—548. Sec. 3095. May dissent from stay of execution, then not be liable to surety for the stay; officer, how to collect in such cases. R. C, c. IIO, s. 3. 1839, c. O, ss. 1, 2. Whenever any judgment shall be obtained before a justice, against a principal and his suiety, and the priuti- pal debtor shall desire to stay the execution thereon, but the surety is unwilling that "such stay shall be had, the surety may cause his dissent thereto to be entered by the justice, which shall absolve him fron) all liability to the suiety, who may stay the same. And the constable or other officer, who may have the collection of the debt, shall make the money out of the property of the principal debtor, and that of the surety for the stay of execution, if he can, before he shall sell the property of the surety before judgment. Chap. 53.] SURETY AND PRINCIPAL. 805 Sec. 209G, Surety i>ayiiig debt of deceased principal, to have priority as tlie creditor liad against the estate. R. C, c. 110, s. 4. 1829, c. 33. Whenever a sui^ety, or his representative, shall pay the debt of his deceased principal, the claim thus accru- ing shall have such priority in the administration of the assets of the principal, as had the debt before its payment. Cliaffiu V. Hanes, 4 Dev., 103; Drake v. Coltrane, Busb., 300; Howell v. Reams, 73—391. Sec. 2007. Surety may cause written notice to be given to creditor; proviso. 18G8-'9, c. 232, s. 1. In all cases where any surety or indorser on any note, bill, bond, or other written obligation, shall consider himself in danger of loss in consequence of his contingent liability, either from the insolvency or misconduct of the principal, in said note, bill, bond, or other written obliga- tion, or from the negligence of the payee or holder of any such instrument, it shall be lawful for such surety or indorser, at any time after such note, bill, bond, or other written obligation shall have become due and pay- able, to cause written notice to be given to the payee or holder of any such paper or obligation, requiring him to bring suit on said obligation, and to use all reasonable diligence to save harmless such surety or indorser: Pro- vidnd, nothing herein contained shall apply to official bonds, or bonds given by any person acting in a fiduciary capacity. Cole V. Pox, 83 — 463; Goodmau v. Litaker, 84 — 8; Torrence v. Alexan- der, 85—143. Sec. 2098. Negligence to operate as a discharge; proviso. 1868-'9, c. 233, s. 3. Should the payee or holder of any such note, bond, bill, or other written obligation, refuse or fail, within thirty days from the service of said notice, to bring suit in the appropi-iate court in an effoi't to save harmless such surety or indorser, such refusal or failure to sue, shall operato as a discharge of such surety or indorser, from all liabil- ity whatever, on any such note, bond, bill, or other written obligation: Provided, that this notice shall not have the effect to discharge from liability any co-suret)' who does not join in such notice, or who has not given a sepai'ate notice: Provided further, that this and the preceding section shall not apply to holders of such note, bond, bill, or obligation, who hold the same as collateral security or in trust. Cole V. Fox, 83—463; Goodmau v. Litaker, 84—8. 806 SURETY AND PRINCIPAL. [Chap. 52. Sec. 2099. Notice to be in writing. 1868-'9, c. 232, s. 3. Such notice shall be served by the sheriff or his deputy, who shall return it to the party for whose benefit the notice was issued, which shall be evidence of the fact iu all courts. Sec. 2100. Defendants may show they are sureties; jnry or justice to find the facts. K. C, e. 31, s. 124. 1826, c. 31, s. 1. In the trial of actions upon contracts, either of the de- fendants may show in evidence that he is surety, and if it be satisfactorily shown, the jury in their verdict, or the justice of the peace in his judgment, shall distinguish the principal and surety, which shall be indorsed on the execution by the clerk, or justice of the peace issuing it. Davis V. Sanderlin, 1 lied., 389; Stewart v. Ray, 4 Ired., 269; Eaton v. Eaton, 8 Ired. Eq., 108; Lowdei- v. Noding, 8 lied. Eq., 208. Sec. 2101. Property of principal to be first levied on and sold. K. C, c. 31, s. 2. 1826, c. 31, s. 2. Note Revised Code, c. 1 10. When an execution, indorsed as aforesaid, shall come to the hands of any officer for collection, he shall levy the same on the property of the principal, or so much thereof as shall be necessary to satisfy the execution, and for want of sufficient property of the principal, also on the property of the surety, and make sale thereof: Provided, that, in all such levies a sale shall first be had of all the property of the principal levied on, before that of the surety. EasoQ V. Petway, 1 D. & B., 44; Sliaw v. McFailand, 1 Ired., 216; Da- vis V. Sanderlin, 1 Ired., 389; SliufiEord v. Cline, 13 Ired., 463. Chap. 53.] WIDOWS. 8or CHAPTER FIFTY-THREE. WIDOWS. Section. 2103. To what dower a widow is en- titled; consequences of adul- tery. 2103. Subject to the provision in the preceding section, widow of intestate, and widow dissent- ing from will, entitled to a third in value of her hus- band's estate, including dwell- ing-house, &c. 2104. Dower not liable to be sold under execution. 8105. Dower and land in lieu thereof not subject to debts. 2106. Alienation of husband passes only two-thirds. 2107. When dower barred. 2108. Widow may dissent from hus- band's will. 2109. Effect of dissent. 2110. When dower assigned by heir or devisee with consent of widow. 2111. How dower may be applied for. 2113. Who must be parties. 2113. How dower assigned. 2114. Notices to such parties. 3115. Bona fide conveyances not af- fected, when. 2116. What widows entitled to a year's support; her year's al- lowance. 2117. From what assigned. Section. 2118. Value of the allowance. 3119. FiimOy defined. 3130. Dutyof the administrator, &c., to assign. 3121. How value of articles assign- ed, to be ascertained. 3133. Upon application of widow, personal representative to ap- ply to justice of the township, &c. ; proviso. 3133. Duty of the commissioners. 2124. Appeal may be taken to supe- rior court. 2135. Duty of appellant. 2126. Sum allowed widow, to be credited to executor, &c., un- less impeached for fraud. 2137. When above allowance shall be in full. 3138. When allowance not in full. 3129. Application to be made by summons, &c. 3130. What to be set forth in com- plaint. 2131. What judgment shall be given. 2132. Duty of commissioners, how report returned. 2133. Party interested may except. 3134. If the report confirmed, what judgment and execution; costs. 2135. Fees of commissioners, sheriff and justice. Sec. 3102. To what dower a widow is entitled; conse- quences of adultery. 1868-'9, c. 93, s. 33. 1871-'3, c. 193, s. 44. Widows shall be endowed as at common law as in this chapter defined: Provided, if any married woman shall commit adultery, and shall not be living with her hus- 808 WIDOWS. [Chap. 53. band at his death, she shall thereby lose all right to dower in the lands and tenements of her husband; and an}' such adultery may be pleaded in bar of any action or proceed- ing for the recovery of dower. Wallers v. Jordan, 13 Ired., 170, Walters v. Jordan, 13 Ired., 361; Cook V. Sexton, 79—305. Sec. 2103. Subject to the provision in tlie preceding sec- tion, widow of intestate nud widow di.ssenting: from will entitled to a third in value of her husband's estate, including dwelling house, &c. B. C, c. 118, s. 3. R. S., c. 121, s. 3. 1827, c. 46. 18«9-'70, c, 176, s. 1. 1883, c. 175. Subject to the provision in the preceding section every married woman, upon the death of her husband intes- tate, or in case she shall dissent from his will, shall be entitled to an estate for her life iu one-third in value of all the lands, tenements and hereditaments whereof her husband was seized and possessed at any time during the coverture, in which third part shall be included the dwelling house in which her husband usually resided, to- gether with ofifices, out houses, buildings and improve- ments thereunto belonging or appertaining; she shall in hke manner be entitled to such an estate in all legal rights of redemption and equities of redemption or other equitable estates in lands, tenements and hereditaments whereof her husband was seized in fee at anytime during the coverture, subject to all valid incumbrances existing before the coverture or made during it with her free con- sent lawfully appearing thereto. The jury summoned for the purpose of assigning dower to a widow, shall not be restricted to assign the same in every separate and dis- tinct tract of land; but may allot her dower iu one or more tracts, having a due legard to the interest of the heirs as well as to the right of the widow. Harrison v. Wood, 1 D. & B. Eq., 437; Potter v. Everett, 7 Ired. Eq., 152; Thompson v. Tliompsou, 1 Jon., 4:;0; Mitchener v. Atkinson, Pliil. Eqi 23; Royster v. Royster, Phil, 926; Stroud v. Stroud, Pliil., 535; Ramsour V. Ramsour, 03—331; Webb v. Boyle, 03-271 ; Caroon v. Cooper, G3— 386; Rose v. Rose, 03—891; Smith v. Gilmer, 04—546; Reilzcl v. Eck- ard, 65—673; Sutton v. Askew, 00—172; Wesson v, Johnson, 06—189; Bunting V. Foy, 66—193; Fcllon v. Elliotl, 00—195; Williams v. Munroe, 67—164; Hughes V. Merrilt, 07-380; Creecy v. Pcarce, 09-07; Gregory v. Gr.-gory, 09-522; Ruffln v. Co.\, 71—253; lIcAfee v. Bettis, 72—28; Slate V. Cunningham, 72—109; Gwathmcy v. Pearce, 74—398; llolliday v. Mc- Millan, 79—315; Brnce v. Strickland, 81—267; O'Connor v. Ilarris, 81— 279; Askew v. Byuum, 81—350; Jenkins v. Jenkins, 82—208; O'Kclly v. Williams, 84—281; Gregory v. Ellis, 86—579; Burton v. Spiers, 87—87. Chap. 53.] WIDOWS. 809 Sec. 2104. Dower not liable to be sold under execution. 1868-'9, c. 93, s. 34. Dower, or right of dower, shall, in uo case, be subject to seizure on execution foi- the payment of any debt of the husband during the term of the life of the wife. Avery ex parte, 64 — 113. Sec. 3105. Dower and land in lieu thereof not subject to debts. K. C, c. 118, s. 8. 1791, c. 351, s. 4. The dower of a widow, and also such lands as may be devised to her by his will, if such lands do not exceed the quantity she would be entitled to by right of dower, shall not be subject to the payment of debts due from the estate of her husband, during the term of her life. Gully V. Holloway, 63—84; Avery ex parte, 64—113; Simonton v. Hous- ton, 78—408. Sec. 2106. Alienation of husband passes only two-thirds. 1868-'9, c. 93, s. 35. No alienation of the husband alone, with or without covenant of warranty, shall have any other or further effect than to pass his interest in such estate, subject to the dower right of his wife: Provided, that a mortgage or trust deed by the husband to seciu-e the purchase money, or any part thereof, of land bought by him, shall, without the wife executing the deed, be effectual to pass the whole interest according to the provisions of the said deed. Harrison v. Wood, 1 D. v. B. Eq., 437; Potter & Everett, 7 Ired. Eq., 152; Rose V. Kose, 63—391; Avery ex parte, 64—113; Sutton v. Askew, 66—173; Felton v. Elliott, 66—195; Williams v. Munroe, 67—164; Hughes V Merri'tt, 67—386; Holliday v. McMillan, 79—315; Bruce v. Strickland, 81—267; O'Connor v. Harris, 81—279; Askew v. Byuum, 81—350; Jenk- ins V. Jenkins, 83—208; O'Kelly v, Williams, 84—281. Sec. 2107. When dower barred. 1868-'9, c. 93, s. 36. The right to dower under this chapter shall pass and be effectual against any widow or person claiming under her upon the wife joining with her husband in the deed of conveyance and being privately examined as to her consent thereto in the manner prescribed by law. Gwatlimey v. Pearce, 74 — 398. Sec. 3108. Widow may dissent from husband's will. 1868-'9, c. 93, s. 37. Every widow may dissent from her husband's wnll be- fore the clerk of the superior court of the county in which such will is proved, at aily time within six months 810 WIDOWS. [Chap. 53. after the probate. The dissent may be in person, or by attorney, authorized in writing, executed by the widow and attested bv at least one witness and duly proved. The dissent, whether in person or by attorney, shall be filed as a record of court. If the widow be an infant or insane, she may dissent by her guardian. Hinton V. Hinton, Phil., 410; Simonton v. Houston, 78-408. Sec. 2109. Eflfect of dissent. B. C, c. 118, s. 12. 18C8- '9, c. 93, s. 38. Upon such dissent, the widow shall have the same rights and estates in the real and personal property of her husband as if he had died intestate. Arlington v. Dortcb, 77—367. Sec. 3110. When dower assigned by heir or devisee with consent of widow. 1868-'9, c. 93, s. 39. If the personal property of a decedent be sufficeut to pay his debts and charges of administration, the heir or devisee with the widow may, by deed, agree to an assign- ment of her dower. Sec. 3111. How dower may be applied for. 1 868-'9, c. 93, s. 40. If no such agreement be made, a widow may apply for assignment of dower by petition in the superior court as in other cases of special proceedings. Askew V. Bynum, 81 — 350. Sec. 3113. Who must be parties. 1868-'9, c. 93, s. 41. The heirs, devisees and other persons in possession of, or claiming estates in the lands, shall be parties to such proceeding. Ramsour V. Ramsour, 63—231; Moore ex parte, 64—00; Lowery v. Low- ery, 64^110; Avery ex parte, 64—113; Corney v. Whitehurst, 64—426; Bunting V. Foy, 66—193; Gregory v. Gregory, 69—523; Askew v. Bynum, 81—350. Sec. 3113. How dower assigned. 1868-'9, c. 93, s. 42. If dower be adjudged, it shall be assigned by a jury of three persons qualified to act as jiu-ors, unless one of the parties demand a greater number, not exceeding twelve, who shall be summoned by the sheriff to meet on the premises or some part thereof, and being duly sworn by the sheriff or other person authorized to administer oaths, shall proceed to allot and set apart to the widow her dower in said premises according to law and make Chap. 53.] WIDOWS. report of their proceedings under their hands within hve days to the clerk of the superior court. Askew V. Bynum, 81 — 350. Sec. 2114. Notices to sucli parties. 1868-'9, c. 93, s. 43. The parties, or their attorneys, to such proceeding, if within the county, shall be notified of the time and place of meeting of the jury appointed to assign dower, at least five days before the meeting. Sec. 2115. Bona fide conveyances not affected, when, lS69-'70, c. 153. The act of the general assembly entitled "An act restoring to married women their common law rights of dower," chapter fifty-four, ratified on the second day of March, one thousand eight hundred and sixty-seven, shall not be so construed as to affect the right or title of any person claiming real estate under a conveyance made within thirty days after the passage of the said act, but all such conveyances shall have the like force and effect as if the said act had been enacted to take effect at the end of thirty days after the passage of the same. Sec. 2116. Wliat widows entitled to a year's support; her year's allowance. 18C8-'9, c. 93, s. 8. 1871-'2, c. 193, s. 44. 1880, c. 42. Every widow of an intestate, or of a testator from whose will she has dissented, shall be entitled, besides her dis- tributive share in her husband's personal estate, to an allowance therefrom, for the support of herself and her family for one year after his decease, and said allowance shall be exempt from any lien, by judgment or execution acquired against the property of her said husband: Pi-o- vided, if any married woman siiall commit adultery, and shall not be living with her husband at his death, she shall thereby lose all right to a year's provision, and to a dis- tributive share from the personal pi'0]ieityof her husband, and such adultery may be pleaded in bar of any action or proceeding for the recovery of such i-ights and estates. AValters v. Jorilan, 12 Irecl., 170; Kogers exjwrte, 08—110; Tinnn ex parte, 63^137; Bolin V. Baker, 75 — 47; James v. James, 70 — 331; Cook v. Sex- ton, 79—305; Grant V. Hughes, 83—310; Long v. Long, 85—415. Sec. 2117. From what assig-iied. 18C8-'9, c. 93, s. 9. Such allowance shall be assigned from the crop, st'^ck and provisions of the deceased in his possession, at the time of his death, if there be a sufficiency thereof in -v 812 WIDOWS. [Chap. 53. value; and if there be a deficiency, it shall be made up by the personal representative from the personal estate of the deceased. Sec. 2118. Value of the allowance. lS68-'9, c. 93, s. 10. Except in cases in which a larger allowance is herein- after provided for, the value of a year's allowance shall be three hundred dollars, and one hundred dollars in addition thereto for every member of the familj' besides the widow. Cook V. Sexton, 79—305. Sec. 2119. Family tlefinert. 18C8-'9, c. 93, s. 11. The family of the deceased, for the purposes of this chapter, shall be deemed to be, besides the widow, every child, eitlier of the deceased or of the widow, and every other person to whom the deceased or widow stood in place of a parent, who was residing with the deceased at his death, and whose age did not then exceed fifteen years. Sec. 2120. Duty of the aduiluistrator, &c., to assign. 1868-'9, c. 93, s. 12. It shall be the duty of every administrator, collector, or executor of a will, from which the widow of a testator has dissented, on application in writing, signed by the widow of such intestate or testator, at any time within one year after the decease of tlie husband, to assign to her a year's allowance in the manner prescribed in this chapter, to the value herein prescribed, deducting therefrom the value of any articles consumed by the widow and her family since the death of her husband to the time of the assignment. Cook V. Sexton, 79—305. Sec. 2121. How value of articles assigned to be ascer- tained. 1868-'9, c. 93, s. 13. The value of stock, crop and provisions assigned to the widow, as well as that of the articles consumed, shall be ascertained by a justice of the peace an(i two persons quahfied to act as jurors of the county in which adminis- tration was granted or the will pi'ovod. Sec. 2122. Upon application ot widow, personal repre- .sentative to apply to .justice of the towiLship, &c.; pro- viso. 1870-'71,c. 200. Upon the application of the widow, the personal repre- sentative of the deceased shall apply to a justice of the peace of the township in which the deceased resided, or Chap. 53.] WIDOWS. 813 some adjoining townsliip, to summon two persons quali- fied to act as jurors, who having been sworn by the jus- tice to act impartially, shall, with him, ascertain the number of the family of the deceased according to the definition given in this chapter, and examine his stock, crop and provisions on hand, and assign to the widow so much thereof as will not exceed the value limited in this chapter, subject to the deduction prescribed in this chap- ter: Provided, that in case there shall be no administra- tion upon said estate, or if the widow shall be the personal representative, she may make the application, and it shall be the duty of the justice to proceed in the same manner as though the application had been made by the personal representative: Provided, further, that in all cases, if there be no crop, stock or provisions on hand, or not a sufficient amount, the commissioners may allot to the widow any articles of personal property of the deceased, and also any debt or debts known to be due him, and such allotment shall vest in the widow said property, and the right to collect the debts thus allotted. Irvin V. Hughes, 83—210. Sec. 3123. Duty of the commissioners. 1868-'9, c. 93, s. 15. The commissioners shall make and sign three lists of the articles assigned to the widow, stating the quantity and value of each, the number of the family, and the de- ficiency to be paid by the personal representative. One of these lists shall be delivered to the widow, one to the personal representative and one returned by the justice, within twenty days after the assignment to the sujDerior court of the county, and the clerk shall file and record the same and enter judgment against the personal repre- sentative, to be paid when assets shall come into his hands, for any residue found in favor of the widow. Irviii V. Ilun-lies, 82 — 210; Lon^v. Loni;, 85 — 415. Sec. 2124. Appeal may be taken to superior court. 1868- '9, c. 93, s. 16. The personal representative, or the widow, or any creditor, legatee or distributee of the deceased, may ap- peal from the finding of the commissioners to the supe- rior court of the county, and cite the adverse party to appear before such court on a certain day, ■within ten days from the assignment. 814 WIDOWS. [Chap. 53. Sec. 2125. Duty of appellant. 1868-'9, c. 93, s. 17. At or before the day named, the appellant shall file with the clerk a copy of the assignment and a statement of his exceptions thereto, and the issues thereby raised shall be decided as other issues are directed to be; when the issues shall have been decided, judgment shall be en- tered accordingly, if it may be without injustice, with- out remitting the proceedings to the commissioners. Sec. 2126. Sum allowed widow to be credited to execu- tor, &c., unless impeached for fraud. 18G8-'9, c. 93, s. 18. Upon the settlement of the accounts of the personal representative, he shall be credited with the articles as- signed, and the value of the deficiency assessed as afore- said, if the same shall have been paid, unless the allow- ance be impeached for fraud or gross negligence in him. Sec. 2127. When above allowance shall be in full. 1868- '9, c. 93, s. 19. If the estate of a deceased be insolvent, or if his per- sonal estate does not exceed two thousand dollars, the al- lowance for the year's support of his widow and her family shall not, in any case, exceed the value prescribed above; and the allowance made to her as above pre- scribed, shall preclude her from any further allowance. Cook V. Sexton, 79—305. Sec. 2128. When allowance not in full. 1868-'9, c. 93, s. 20. It shall not, however, be obligatory on a widow to have her support assigned as above prescribed. Without ap- plying to the personal representative of her deceased husband, she may, at any time within one year after the death of her husband, apply to the superior court of the county in which the will was proved, or administration granted, to have a year's support for hei-self and her fam- ily assigned to her. Cook V. Sexton, 79—305. Sec. 2129. Application to be made by summons, &c. 1868- '9, c. 93, s. 21. The application shall be by summons, as is pre- scribed for special proceedings, in which the personal representative of the deceased if there be one other than the plaintiff, the largest known creditor, or legatee, or some distributee of the deceased, living in the county, Chap. 53.] WIDOWS. 815 shall be made defendant, and the proceedings shall be as prescribed for special proceedings between parties. Sec. 3130. What to l>e set forth in complaint. 1868-'9, c. 93, s. 33. In her complaint the widow shall set forth, besides the facts entitling her to a year's support and the A^alue thereof, as claimed by her, the further facts, that the estate of the deceased is not insolvent, and that the per- sonal estate of which he died possessed exceeded two thousand dollars, and also whether or not she had an allowance made her, and the nature and value thereof; and if no allowance has been made, the quantities and values of the articles consumed by her and her family since the death of her husband. Cook V. Sexton, 79—305. Sec. 3131. What judgment shall be given. 1868-'9, c. 93, s. 33. If the material allegations of the complaint be found true, the judgment shall be that she is entitled to the rehef sought; and the court shall thereupon issue an order to the sheriff or other proper officer of the county, com- manding him to summon a justice of the peace and two indifferent persons qualified to act as jurors of the county, to assign to the plaintiff from the crop, stock, and pro- visions of the deceased, a sufficiency for the support of herself and her family, for one year from the death of her husband; and if there be a deficiency thereof to assess such deficiency, to be paid by the personal representa- tive from the personal assets of the deceased; deducting, nevertheless, in all cases from such allowance the articles, or the value thereof, consumed by the widow and her family before such assignment, and also any sum previously assigned her. Sec. 3133. Duty of commissioners; how report returned. 1868-'9, c. 93, s. 34. The said commissioners shall be sworn by the justice and shall proceed as prescribed in this chapter, except that they may assign to the widow a value sufficient for the support of herself and her family according to the estate and condition of her husband and without regard to the limitation aforesaid in this chapter; but the value allowed shall not in any case exceed the one-half of the annual net income of the deceased for three years next preceding his death. Their report shall be returned by the justice to the court. 816 WILLS AND TESTAMENTS. [Chap. 54. Sec, 2133. Party interested may except. 1868-'9, c. 93, s. 35. The personal representative, or any creditor, distributee or legatee of the deceased, within twenty days after the return of the report, may file exceptions thereto; the plaintiff shall be notified thereof and cited to appear before the court on a certain day, witliin twenty, and not less than ten days after service of the notice and answer the same, the case shall thereafter be proceeded in, heard, and decided as provided in special proceedings between parties. See. 3134. If tlie report confirmed, what judgment and execution; costs. 1868-'9, c. 93, s. 36. If the report shall be confirmed, the court shall so de- clare, and execution shall issue to enforce the judgment, as in like cases; and in sucii proceeding the costs shall be in the discretion of the court. Sec. 3135. Fees of commissioners, slieriflf and justice. 1868-'9, c. 93, s. 38. The fees of the justice, and commissioners, and sheriff, each, shall be one dollar for the assignment; the other fees and costs shall be as prescribed in other cases. CHAPTEE FIFTY-FOUR. WILLS AND TESTAMENTS. Section. 2136. Wills of real and personal es- tate, how executed. 2137. Ages of testators and exec- tors. 2138. Wills of married women, how and wliore proved. 2139. Appointments by will execu- ted as wills; valid, though other required forms be not observed. 2140. All property, rights and inter- ests may be disposed of by will. Section. 2141. Wills to speak at the death of testator. 2142. Lapsed and void devises to pass under residuary clause. 2143. A general gift to include es- tates which testator has power to appoint. 2144. Gifts to issue dying and leav- ing issue. 2145. Children born after parent's will executed. 2146. Executor competent wit- ness. d -^ Chap. 5-t.] WILLS AND TESTAMENTS. 817 Section. 2147. Devises, &c., to witnesses void. 2148. How -wills admitted to pro- bate. 2149. Proofs and examinations in writing. 2150. Probate, liow far conclusive. 2151. Wlio may apply for probate. 2152. Who may apply when execu- tor does not. 2153. What to be shown on applica- tion. 2154. Production of will compelled ' by process. 2155. Will made without the state, how proved. 2156. Will of citizen or subject of another country, how allowed and recorded in this state. 2157. Will of citizen of this state proved elsewhere, how proved and recorded here. 2158. Caveat. 2159. Transfer to superior court, when. 2160. Order to suspend proceedings. 3161. Costs, how paid. 2162. Who is disqualified to serve as executor. 2163. Executor may renounce. 2164. When executor deemed to have renounced. 2165 Executor under disqualifica- tion of age or absence. Section. 2166. Letters of administration with the will annexed to be granted, when and to whom. 2167. Qualifications, &c.. of such administrators. 2168. Will of testator to be ob- served. 2169. Oaths, &c. 2170. Revocation of letters on proof of will, &c. 2171. Revocation on ground of dis- qualification or default. 2172. Letters, how issued and tested. 2173. Wills filed in clerk's office. 3174. No will effectual without pro bate; certified copy, where re- corded; probate, conclusive, when. 2175. Copies of wills evidence. 2176. Written wills, how revoked. 2177. Revoked by marriage. 3178. Not by altered circumstances. 2179. Nor by conveyances after will executed. 3180. Devises construed to be in fee, unless the contrary ap- pear. 3181 Copies of wills in the office of secretary to be evidence; pro- viso. 3182. Registry of wills recorded in wrong county evidence. 3183. Copy of lost or destroyed wills evidence, when. Sec. 2136. Wills of real and personal estate, how exe- cuted. R. C, c. 119, s. 1. 1784, c. 204, s. 11. 1784, c. 225, s. 5. 1840, c. 62. 1846, c. 54. No last will or testament shall be good or sufficient, in law, to convey or give any estate, real or personal, unless such last will shall have been written in the testator's lifetime, and signed by him, or by some other person in his presence and by his direction, and subscribed in his presence by two witnesses at least, no one of whom shall be interested in the devise or bequest of the said estate, except as hereinafter provided. Or, unless such last will and testament be found among the valuable papers and 35 818 WILLS AND TESTAMENTS. [Chap. .5i. effects of any deceased person, or shall have been lodged in the hands of any person for safe-keeping, and the same shall be in the handwriting of such deceased person, with his name subscribed thereto, or inserted in some part of such will; and if such handwriting shall be proved, by three credible witnesses, who verily believe such will and every part thereof is in the handwriting of the person whose will it appears to be, then such will shall be sufficient to give and convey real and personal estate. Rogers v. Biiley, 1 Hay., 256; Eelbeck v. Granberry, 2 Hay., 232; Rhea V. Executors, 2 Hay., 342: Bateman v. Masiner, 1 Mur., 176; Jiggitts v. Maney, 1 Mur., 2.58; Harrison v. Burgess, 1 Hawks, 384; JIartin v. Hough, 2 Hawks, 368; Allison v. Allison, 4 Hawks, 141; Galloway v. Yates, 1 Dev,, 266; Thompsou v. McDonald, 2 D. & B. Eq., 463; Lunsford V. Alexander, 3 D. &B., 40; Ragland v. Huntington, llrod., 561; St. John's Lodge V. Callender, 4Ired., 335; Murray v. Olliver, 6 Ired. Eq., 55; Tre.xler V. Miller, 6 Ired. Eq., 248; Battle v. Speight, 9 Ired., 288; Graham v. Gra- ham, 10 Ired., 219; Bynum v. Bynum, 11 Ired., 632; Love v. Johnston, 13 Ireil., 355; Pridgen v. Pridgen, 13 Ired., 259; Kirby v. Kirby, Busb., 454; Outlaw V. Hurdle, 1 Jon., 150; Cox's Will, 7 Jon., 321; Jones v. Tuck, 3 Ji.n., 202; Gunter v. Gunter, 3 Jon., 441; Bristol v. Beaver, 3 Jon., 516; Malloy V. McNair, 4 Jon., 297; Gaither v. Ballew, 4 Jon., 488; Little y. Lockman, 4 Jon., 494; Grigg v. 'Williams, 6 Jon., 518; Sawyer v. Sawyer, 7 Jon., 134; Cornelius V. Cornelius, 1 Jon., 563; Adams v. Clard, 8 Jon.. 56; Hill V. Bell, Phil., 122; "Wood v. Sawyer, Phil., 251; Smith v. Smith, 63— 637; Smithdeal v. Smith, 64—52; Hughes v. Smith, 64—493; Belcher's Will, 66—51; "Winstead v. Bowman, 68—170; Donoho v. Patterson, 70— 649 ; Mayo v. Jones, 78—402. Sec. 2137. Ages of testators and executors. R. C, c. 119, s. 3. 1811, c. 830. No person shall be capable of disposing of real or per- sonal estate by will, nor be allowed to qualify as executor of a will, until he shall have attained the age of twenty- one years. Williams v. Baker. 2 C. L. Repos., 599. Sec. 2138. Wills of married woiuen, how and when prov- ed. K. C, c. 119, s. 3. 1844, c. 88, s. 8. A married woman OAvning real or personal property may dispose of the same by will, subject to the husband's right of courtesy. Newlin v. Freeman, 1 Ired., 514; 'Whitfield v. Hurst, 3 Ired. Eq., 243; Whitfield V Hurst, 9 Ired., 170; Long v. Barnes, 87—829. Chap. 54.] WILLS AND TESTAMENTS. 819 Sec. 2139. Appointments by will executed like wills; valid tliougli other required forms be not observed. R. C, C.119, s. 4. 1844, c. 88, s. 9. No appointment, made by will in exercise of any power, shall be valid, unless the same be executed in the manner by law required for the execution of wills; and every will, executed in such manner, shall, so far as respects the execution and attestation thereof be a valid execution of a power of appointment by will, notwith- standing it shall have been expressly required, that a will made in exercise of such power should be executed with some additional or other form of execution or solemnity. Sec. 2140. All property, rights and interests may be disposed of by will. B. C, c. 119, s. 5. 1844, c. 88, s. 1. Any testator, by his will duly executed, may devise, bequeath, or dispose of all real and personal estate, which he shall be entitled to at the time of his death, and which, if not so devised, bequeathed, or disposed of, would descend or devolve upon his heirs at law, or upon his executor or administrator; and the power hereby given shall extend to all contingent, executory, or other future interest in any real or personal estate, whether the testator may or may not be the person or one of the persons, in whom the same may become vested, or whether he may be entitled thereto under the instrument by which the same was created, or under any disposition thereof by deed or will; and also to aU rights of entry for conditions broken, and other rights of entry; and also to such of the same estates, interests, and rights respectively, and other real and personal estate, as the testator may be entitled to, at the time of his death, notwithstanding that he may become entitled to the same subsequently to the execution of his will. Champiou et ah. ex pa/rte, Busb. Eq., 246. Sec. 2141. Wills to speak as at death of testator. K. C, c. 119, s. 6. 1844, c. 88, s. 3. Every will shall be construed, with reference to the real and personal estate comprised therein, to speak and take effect, as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will. ^VUliams v. Davis, ISIred., 31; Champion etaU. ex parte, Busb. Eq., 246; 820 WILLS AND TESTAMENTS. [Chap. 54. Robbins v. Windly, 3 Jon. Eq., 286; Nooe v. Vannoy, 6 Jon. Eq., 185; Radford v. Elmore, 84—424. Sec. 2142. Lapsed and void devises to pass under residu- ary clause. R. C, c. 119, s. 7. 1844,0.88,8.4. Unless a contrary intention shall appear by tho will, such real estate or interest therein, as shall be comprised, or intended to be comprised, in any devise in such will contained, which shall fail or be void by reason of the death of the devisee in the lifetime of the testator, or by reason of such devise being contrary to law or otherwise incapable of taking effect, shall be included in the resi- duary devise (if any) contained in such will. Sec. 2143. A general gift to include estates which testator has i)Ower to appoint. R. C, c. 1 19, s. 8. 1844, c. 88, s. 5. A general devise of the real estate of the testator, or of his real estate in any place or in the occupation of any person mentioned in the will, or otherwise described in a general manner, shall be construed to include any real estate, or any real estate to which such description shall extend (as the case may be), which he may have power to appoint in any manner he may think proper; and shall operate as an execution of such power, unless a contrary intention shall appear by the will; and in like manner a bequest of the personal estate of the testator, or any be- quest of personal property, described in a general manner, shall be construed to include any personal estate, or any personal estate to which such description shall extend (as the case may be), which he may have power to appoint in any manner he may think proper, and shall operate as an execution of such power, unless a contrary intention shall appear by the will. Sec. 2144. Gifts to issue dying and leaving issue. 1868- '9, c. 113, s. 61. When any person, being a child or other issue of the testator, to whom any real or personal estate shall be de- vised or bequeathed for any estate or interest not deter- minable at or before the death of such person, shall die in the lifetime of the testator, leaving issue, and any suc-h issue of such person as shall be living at the death of the testator, such devise or bequest shall not lapse, but shall take effect and vest a title to such estate in the issue sur- viving, if there be any, in the same manner, proportions and estates as if the death of such person had happened Chap. 54.] WILLS AND TESTAMENTS. 821 immediately after the death of the testator, unless a con- trary intention shall appear by the will. Hester v. Hester, 2 Ired. Eq., 330; Lindsay v. Pleasants, 4Ired. Eq., 330; "Williamson v. Williamson, 4 Jon. Eq., 281; Smith v. Smith, 5 Jon. Eq., 305; Scales v. Scales, 6 Jon. Eq., 163; Lcfler v. Rowland, Phil. Eq., 143; Whitehead v. Thompson, 79 — 450; Gordon v. Pendleton, 84—98. Sec. 2145. Clxild born after parent's will executed. 1868- 'O, c. 113, s. 62. Children born after the making of the parent's will, and whose parent shall die without making any provis- ion for them, shall be entitled to such share and propor- tion of said parent's estate as if he or she had died intes- tate, and the rights of any such after-born child shall be a lien on every part of the parent's estate, untU his sev- eral share thereof is set apart in the manner prescribed in this chapter. Johnson v. Chapman, Busb. Eq., 213; Windley v. Gaylord, 7 Jon., 55. Sec. 2146. Executor a competent witness. B. C, c. 119, s. 9. No person, on account of being an executor of a wOl, shall be incompetent to be admitted a witness to prove the execution of such wiU, or to prove the validity or in- valdity thereof. Paunell v. Scoggln, 8 Jon., 408. Sec. 2147. Devise and bequests to witnesses void. B.C., c. 119, s. 10. If any person shall attest the execution of any will, to whom or to whose wife or husband any beneficial devise, estate, interest, legacy, or appointment of or affecting any real or personal estate shall be thereby given or made, such devise, estate, interest, legacy, or appoint- ment shall, so far only as concerns such person attesting the execution of such will or the wife or husband of such person, or any person claiming under such person, or wife or husband, be void; and such person so attesting, shall be admitted as a witness to prove the execution of such will, or the validity or invalidity thereof. McLean v. Elliott, 72—70. Sec. 2148. How wills admitted to probate. C. C. P., s. 435. Wills and testaments must be admitted to probate only in the following manner: (1) In case of a written will, with witnesses, on the 822 WILLS AND TESTAMENTS. [Chap. 54. oath of at least two of the subscribing witnesses, if living; but when any one or more of the subscribing witnesses to such will are dead, or reside out of the state, or are insane or otherwise incompetent to testify, then such proof may be taken of the hand\vriting, both of the testator and of the witness or witnesses so dead, absent, insane or incompetent, and also of such other circum- stances as will satisfy the clerk of the superior court of the genuineness and the due execution of such will. (2) In case of a holograph will, on the oath of at least three credible witnesses, who state that they verily be- lieve such will and every part thereof is in the hand- wi-iting of the person whose will it purports to be, and whose name must be subscribed thereto, or inserted in some part thereof. It must further appear on the oath of some one of said witnesses, or of some other credible person, that such will was found among the valuable papers and effects of the decedent, or was lodged in the hands of some person for safe keeping. Winstead v. Bowman, 68 — 170. (3) In case of a nuncupative will, on the oath of at least two credible witnesses present at the making there- of, who state that they were specially required to bear witness thereto by the testator himself. It must also be proved that such nuncupative will was made in the testa- tor's last sickness, in his own habitation, or where he had been previously resident for at least ten days, unless he died on a journey or from home. No nuncupative will shall be proved by the witnesses after six months from the making thereof, unless it was put in writing within ten days from such making; nor shall it be proved till a citation has been first issued or publication been made for six weeks in some newspaper published in the state, to call in the widow and next of kin to contest such will if they think proper. Wester v. Wester, 5 .Jon., 95; Leatherwood v. Bojd, Winst., 123; Smith v. Smith, 63—637; Smithdeal v. Smith, 64— 52; Belcher's Will, 66— .M ; Syme v. Broughton, 85—367. Sec. 2149. Proofs and examinations in writing. C. C. P., s. 437. Every clerk of the superior court shall take in writing the proofs and examinations of the witnesses touching the execution of a will; and h« shall embody the substance of such proofs and examinations, in case the will is ad- mitted to probate, in his certificate of the probate there- of, which certificate must be recorded with the will. Chap. 54.] WILLS AND TESTAMENTS. 823 The proofs and examinations as taken must be filed in the office. Elheridge v. Corprew, 3 Jon., 14. Sec. 2 ISO. Probate, bow far conclusive, C. C. P., s. 438. Such record and probate is conclusive in evidence of the validity of the will, until it is vacated on appeal or declared void by a competent tribunal. Mayo V. Jones, 78—403; Syrae v. Brougbton, 85—367. Sec. 2151. Who may apply for probate. C. C. P., s. 439. Any executor named in a will may, at any time after the death of the testator, apply to the clerk of the su- perior court, having jurisdiction, to have the same ad- mitted to probate. Sec. 2152. Who may apply when executor does not. C. C. P., s. 440. If no executor apply to have the vs^ill proved within sixty davs after the death of the testator, any devisee or legatee named in the will, or any other person interested in the estate, may make such application, upon ten days' notice thereof to the executor. Sec. 2153. What to be shown on application. C. C. P., s. 441. On application to the clerk of the superior court, he must ascertain by affidavit of the applicant: (1) That such apphcant is the executor, devisee or leg- atee named in the will, or is some other person interested in the estate, and how so interested. (2) The value and nature of the testator's property, as near as can be ascertained. (3) The names and residence of all parties entitled to the testator's property, if known, or that the same on diligent inquiry cannot be discovered; which of said par- ties in interest are minors, and whether with or Avithout guardians, and the names and residence of such guard- ians, if known. Such affidavit shall be recorded with the will and the certificate of probate thereof, if the same is admitted to probate. Sec. 2154. Production of will compelled by process. C. C. P., s. 442. Every clerk of the superior court having jurisdiction, on application by affidavit setting forth the facts, shall, by summons, compel any person in the state, having in 824 WILLS AND TESTAMENTS. [Chap. 54. possession the last will of any decedent, to exhibit the same in his court for probate; and whoever being duly summoned, refuses in contempt of the court, to produce such wlU, or (the same having been parted with by him) refuses to inform the court on oath where such will is, or in what manner he has disposed of it, shall, by order of the clerk of the superior court, be committed to the jail of the countj^, there to remain without bail till such will be produced or accounted for, and due submission made for the contempt. Sec. 2155. Will made without the state, how proved. C. C. P., s. 443. Whenever it is suggested to the clerk of the superior court, by affidavit or otherwise, that a will has been made without the state, disposing of or charging land oi- other property within the state, the clerk of the superior court of the county where the property is situated may issue a commission to such person as he may select, authorizing the commissioner to take the examination of such wit- nesses as may be produced, touching the execution there- of, and upon return of such commission, with the exami- nation, he may adjudge the said will to be duly proved or otherwise, as in cases on the oral examination of wit- nesses before him, and if duly proved, such wiU shall be recorded. Sec. 2156. Will of citizen or subject of another country, how allowed and recorded in this state. C. C. P., s. 444. 1883, c. 144. Whenever any will, made by a citizen or subject of any other state or country, is duly proved and allowed in such state or country, according to the laws thereof, a copy or exemplification of such will, duly certified and authenti- cated by any ambassador, minister, consul or commercial agent of the United States under his official seal, when produced or exhibited before the clerk of the superior court of any county wherein any property of the testator may be, shall be allowed, filed and recorded in the same manner as if the original, and not the copy, had been produced, proved and allowed before such clerk. But when any such will contains any devise or disposition of real estate in this state, such devise or disposition shall not have any validity or operation, unless the will is ex- ecuted according to the laws of this state; and that fact must appear affirmatively in the certified probate or ex- emplification of the will; and if it do not so appear, the Chap. 54.] WILLS AND TESTAMENTS. 825 clerk before whom the copy is exhibited, shall have power to issue a commission for taking proofs, touching the ex- ecution of the will, as prescribed in the preceding section; and the same may Le adjudged duly proved, and shall be recorded as therein provided. Sec. 2157. Will of citizen of this state proved elsewhere; how proved and recorded here. C. C. P., s. 445. When a will, made by a citizen of this state, is proved and allowed in some other state or country, and the original will cannot be removed from its place of legal deposit in such other state or country, for probate in this state, the clerk of the superior court of the county where the testator had his last usual residence or has any property, upon a duly certified copy or exemplification of such will being exhibited to him for probate, shall take every order and proceeding for proving, allowing and recording said copy as by law might be taken upon the production of the original. Sec. 2158. Caveat. C. C. P., s. 446. At the time of application for the probate of any will, or at any time thereafter, as prescribed by law, any person entitled under such will or interested in the estate, may appear in person or by attorney before the clerk of the superior court, and enter a caveat to the probate of such will. Sec. 2169. Transfer to superior court, when. C. €. P., s. 447. Upon any caveator giving bond, with sufficient surety to be approved by the clerk, in the sum of two hundred dollars, payable to the propounder of the will, conditioned to pay all costs which may be adjudged against such caveator in the superior court, by reason of his failure to prosecute his suit with effect, the clerk shall transfer the cause to the superior court for trial ; and he shall also forthwith issue a citation to all devisees, legatees or other parties in interest within the state, and cause publication to be made, for six weeks, in some newspaper printed in the state, for non-residents to appear at the term of the superior court, to which the proceeding is transferred, and to make themselves proper parties to the said proceeding, if they choose. King V. Kinsey, 71—407. 826 WILLS AND TESTAMENTS. [Chap. 54 Sec. 2160. Order to suspend proceedings. C. C. P., s. 448. Where a caveat is entered and bond given, as directed in the two preceding sections, the clerk of the superior court shall forthwith issue an order to any personal representative, having the estate in charge, to suspend all further proceedings in relation to the estate, except the preservation of the property and the collection of debts, until a decision of the issue is had. Syme v. Broughton, 86—153. Sec. 2161. Costs, how paid. 1861, c. 61. The costs in all cases of caveated wills and testaments shall be paid as the court may in its discretion direct. Mayo V . Jones. 78 — 402. Sec. 3162. Who is disqualified to serve as executor. C. C. P., s. 449. The clerk of the superior court shall not issue letters testamentary to any person who, at the time of apply- ing to qualify, is (1) Under the age of twenty-one years; (2) A person convicted of an infamous crime; (3) Who, on proof, is adjudged by the clerk incompe- tent to execute the duties of such trust, by reason of drunkenness, improvidence, or want of understanding; (4) Who fails to take the oath or to give bond in cases where executors are required by law to give bond; (5) Who has renounced his executorship. Sec. 2163. Executor may renounce. C. C. P., s. 450. Any person appointed an executor may renounce the office by a writing signed by him, and on the same being acknowledged or proved to the satisfaction of the clerk of the superior court, it shall be filed. Sec. 2164. When executor deemed to have renounced. C. C. P., s. 451. If any person appointed an executor does not qualify or renoimce within sixty days after the will is admitted to probate, the clerk of the superior court, on the appli- cation of any other executor named in the same will, or any party interested, shall issue a citation to such person to show cause why he should not be deemed to have renounced. If, upon service of the citation, he does not qualify or renounce within such time, not exceeding thirty days, as is allowed in the citation, an order must Chap. 54.] WILLS AND TESTAMENTS. 827 be entered by the clerk decreeing that such person has renounced his appointment as executor. Sec, 3165. Executor under disqualification of age or ab- sence. C. C. P., s. 452. Where an executor named in the will is under the dis- qualification of non-age, or is temporarily absent from the state, such executor is entitled to six months, after coming of age or after his return to the state, in which to make application to quahfy and take letters testa- mentary. Sec. 2166. Letters of administration with the will an- nexed to be granted, when and to whom. C. C. P., s. 453. i If there is no executor appointed in the will, or if, at any time, by reason of death, incompetency adjudged by the clerk of the superior court, renunciation, actual or decreed, or removal by order of the court, or on any other account there is no executor qualified to act, the clerk of the superior court may issue letters of adminis- tration, with the will annexed, to some suitable person or persons, in the order prescribed in the chapter entitled "Executors and Administrators." Sec. 3167. Qualifications, &c., of such administrators. C. C. P., s. 454. Administrators (in cases prescribed in the preceding Sf ction) shall have the same quahfications and give the same bond as other administrators. Sec. 3168. Will of testator to be observed. C. C. P., s. 455. In all cases, where letters of administration with the will annexed, are granted, the will of the testator must be observed and performed by the administrator with the will annexed, both in respect to real and personal property, and an administrator with the will annexed has all the rights and powers, and is subject to the same duties as if he had been named executor in the wiU. Sec. 2169. Oaths, &c. C. C. P., s. 467. Before letters testamentary, letters of administration with the vviU annexed, letters of administration or letters of collection, are issued to any person, he must take and subscribe an oath or affirmation, before the clerk of the superior court, that he will faithfully and honestly dis- 828 WILLS AND TESTAMENTS. [Chap. 54. charge the duties of his trust, which oath must be filed in the office of the clerk. Sec. 2170. Revocation of letters on proof of will, &c. C. C. P., s. 469. If, after letters of administration are issued, a will is subsequently proved and letters testamentary are issued thereon; or, if after letters testamentary are issued, a revocation of the will, or a subsequent testamentary paper revoking the appointment of executors, is proved and letters aie issued thereon, the clerk of the superior court must thereupon revoke the letters first issued, by an order in writine; to be served on the person to whom such first letters were issued; and, until service thereof, the acts of such person, done in good faith, are valid. Sec. 2171. Kevocatlon on ground of disqualification or default. C. C. P., s. 470. If, after any letters have been issued, it appears to the clerk, or if complaint is made to him on affidavit, that any person to whom they were issued, is legally incom- petent to have such letters, or that such person has been guilty of default or misconduct in the due execution of his office, or that the issue of such letters was obtained by false representations made by such person, the clerk shall issue an order requiring such person to show cause why the letters should not be revoked. On the return of such order, duly executed, if the objections are found vahd, the letters issued to such person must be revoked and superseded, and his authority shall thereupon cease. Taylor v. Biddle, 71—1; Murrill v, Sanderlin, 86—54. Sec. 2172. Letters, liow issued and tested. C. C. P., s. 471. All letters must be issued in the name of the state, and tested in the name of the clerk of the superior coui't, signed by him, and sealed with his seal of office. Tay)or v. Biddle, 71—1. Sec. 2173. Wills filed in clerk's office. K.C., o. 1 11), s. 19. 1777, c. 115, s. 59. AU original wills shall remain in the clerk's office, among the records of the court, where the same shall be proved, and to the said wills any person may have access, as to the other records. Taylor v. Biddle, 71—1. Chap. 54.] WILLS AND TESTAMENTS. 829 Sec. 2174. No will effectual without probate; certified copy where recorded; probate conclusive, when. R. C, c. 119, s. 20. 1784, c. 225, s. 6. No will shall be effectual to pass real or personal estate, unless it shall have been duly proved and allowed in the probate court of the proper county, and a duly certified copy thereof shall be recorded in the office of the superior court clerk of the county wherein the land is situate, and the probate of a will devising real estate shall be conclu sive as to the execution thereof, against the heirs and de- visees of the testator, whenever the probate thereof, under the like circumstances, would be conclusive against the next of kin and legatees of the testator, Sumner v. Roberts, 2 I»ev., 527; Moffit v. Witherspoon, 10 Ired.. 185; Marshall v. Fisher, 1 Jon., Ill; Floyd v. Flemming, 64—409. Sec. 2175. Copies of, evidence. R. C, c. 119, s. 21. 1784, c. 225, s. 6. Copies of wills, duly certified by the proper officer, may be given in evidence in any proceeding wherein the con- tents of the will may be competent evidence. Sec. 2176. Written wills, how revoked. R. C, c. 119, s. 22. 1784,c. 204,s. 14. 1819, c. 1004, ss. 1, 2. 1840, c. 62. No will or testament in writing, or any clause thereof, shall be revocable, otherv^se than by some other will or codicil in writing, or other writing declaring the same, or by burning, canceling, tearing, or obliterating the same, by the testator himself, or in his presence and by his di- rection and consent: but all wiUs or testaments shall re- main and continue in force, until the same be burnt, canceled, torn, or obliterated by the testator, or in his presence and by his consent and direction; or unless the same be altered or revoked by some other will or codicil in writing, or other writing of the testator, signed by hira, or some other person in his presence and by his di- rection, and subscribed in his presence by two witnesses at least; or unless the same be altered or revoked by some other will or codicil in writing, or other writing of the testator, all of which shall be in the handwriting of the testator, and his name subscribed thereto or inserted therein, and lodged by him with some person for safe- keeping, or left by liim in some secure place, or among his valuable papers and effects, every part of vihich will or codicil or other writing shall be proved to l>e in the handwriting of the testator, by three witnesses at least. 830 WILLS AKD TESTAMENTS. [Chap. 54. Bethell V. Moore. 2 D. & B., 311; Bennett v. Sherrod. 3 Ired., 303- Hise v^Fmcher, 10 Ired.. 130; White v. Custen, 1 Jon., 197; /„ re Zollicoffers Will, J Jon., 310; Sawyer v. Sawyer, 7 Jon.. 134. Sec. 2177. Revoked by marriage, R. C.. c. 119 s '>-i 1844, c. 88, s. lO. ... -o. Every will made by a man or woman, shall be revoked by his or her marriage, except a will made in exercise of a power of appointment, when the real or personal es- tate, thereby appointed, would not in default of such an- pointment pass to his or her heirs, executor or adminis- trator or the person entitled as his or her next of kin under the statute of distributions. Winslow V. Copeland, Busb., 17; Sawyer v. Sawyer, 7 Jon., 134. Sec. 2178. Not by altered circumstances. R. C c 11«> s. 24. 1844, c. 88. ' ' No will shall be revoked by any presumption of an in- tention, on the gi-ound of an alteration in circumstances. Sec. 2179. Nor by conveyances after will executed. R C c. 119, s. 25. 1844, c. 88, s. 2. No conveyance or other act made or done subsequently to the execution of a will of, or relating to any real or persona estate therein comprised, except an act by which such will shall be duly revoked, shaU prevent the opera- tion of the will with respect to any estate or interest in such real or personal estate as the testator shall have power to dispose of, by will, at the time of his death Sawyer v. Sawyer, 7 Jon., 134; Wood v. Cherry, 73—110. Sec. 2180. Devises construed in fee unless contrary in- tension appear. R. C, c. 1 19, s. 26. 1 784, c. 204, When real estate shall be devised to any person the same shall be held and construed to be a devise in fee simple, unless such devise shall, in plain and express words, show, or it shall be plainly intended by the will or some part thereof, that the testator intended to con- vey an estate of less dignity. Alexander v. Cunningham, 5 Ired., 430; Riley v. Buchanan, 2 Winst 90- Gibson V. Gibson, 4 Jon., 425; Williamson v. Williamson. 4 Jon Eq" 281; Swann v. Myers, 79 — 101. ' Sec. 2181. Copies of wills in the office of secretary of state to be evidence. R. C, c. 44, s. 12. 1852 c 172 18.56-'7, c. 22. o *,v,. j.<^. Copies of wills filed or recorded in the office of the sec- Chap. 54.] WILLS AND TESTAMENTS. 831 retary of state, attested by the secretary, may be given in evidence in any court, and shall be taken as sufficient proof of the devise of real estate, and are declared good and effectual to pass the estate therein devised: Provided, that no such will may be given in evidence in any court nor taken as sufficient proof of the devise unless a certifi- cate of probate appear thereon. Stevens v. French, 3 Jon.. 359. Sec. 2182. Registry of wills recorded in wrong counties, evidence. 1858-'9, c. 18. Whereas, By reason of the uncertainty of the boun- dary lines of many of the counties of the state, wills have been proved, recorded and registered in the wrong county, whereby titles are insecure; for remedy whereof: The registry or duly certified copy of the record of any will, dulv recorded, may be given in evidence in any of the courts of this state. Sec. 2183. Copy of lost or destroyed wills evidence, when. 1866-'7, c. 127. When any will which may have been proved and ordered to be recorded, shall have been destroyed during the late war, before it was recorded, a copy of such will, so entitled to be admitted to record, though not certified by any officer, shall, when the court shall be satisfied with the genuineness thereof, be ordered to be recorded, and shall be received in evidence whenever the original or duly certified exemplification would be; and such copies may be proved and admitted to record under the same rules, regulations and restrictions as are prescribed in the chapter entitled "Burnt and Lost Records." INDEX TO VOLUME I. Abandonment Section of wife and children 9"0. 971 Abatement of actions ^™ improper venue in criminal proceedings rem- edied by plea in '194 Abduction of children 973, 974 Abortion 975, 976 Acceptor, liability of *^ Accessories, before and after the tact 977-980 Account- administrators, executors, &c. See Executors. clerk of superior court keeps record of.. . .(4) 113 court may order, in actions against fiducia- ries ^^^ current, when cause of action accrues on — 160 failure of railroad officers to, with succes- sor 2001 guardian exhibits annual, to clerk 1580, 1617 See Guardian. reference to take 4S1. Acknowledgment by partner or maker of note or bond, evi- dence of, to repel statute 171 of new contract or promise, to repel bar of statute of limitations, to be in writing. . . 173 Actions after entry, within one year 145 against foreign corporations 194 annulling corporations 604 assignee, by 177 by party in interest 177 civil 130, 133 continued, when and by whom 401, 403 controversy how determined without 567 liual. 129 first disposed of 403 definition of 126 dismissed by court, when (4) 424 distinction between, at law and equity abol- ished 133 Actions— Continued Section division of 12^ executor, administrator, for or against, sur- vive, when 1490, 1497 do not survive, when 1491 for forfeiture of property to state 631 for injuries to property before justice of the peace ^^ letters being revoked, may be continued against executor, &c., to charge him per- sonally or against his successor 1514 limitations, statute of, must be set up in an- swer ■ 138 man-ied woman, by and against 178 merger of 131 one, brought, when several claim ofBce, &c. 614 parties, how designated 134, 184, 185 penal, how discharged 933, 934 real property, brought within twelve months after non-suit, &c 1*2 removal of, from one county to another. ..195-198 summons commences 161, 199, 830 survive death, when. 1490. 1491, 1497, 1498 trespass upon realty, defendant may dis- claim title, and plead tender in bar 577 tried in county where cause arose, iS:c . . . 191 where subject matter situate 190 where plaintiff or defendant resides 192 where bond of executor, &c., given, &c. . . . 193 trying title to any oCBce, triable at return term ^16 usurpation of office, complaint and arrest of defendant in ... , '*9 vacating charter, by whom brought.- 004-608 waste, for and agamst whom . . 62.i when not to abate ■ 1°* when the estate of the deceased person is the real party in interest, must be brought by or agamst personal representative as such all executors considered one person, and judgment may be entered against all, although only one appears 1S<* civil, exempt from arrest while attending court '367 1507 834: INDEX TO VOLUME I. Adequate support, Section failure of husltand to provide 973 Administration, time not counted during controversy about letters, (S:c 1G8 See Kzecittors. Administrators. See Kx€cutor». Adoption, bond to be given by whom, and whon 4 effect of order of 3 letters of, superior court grants 2 order granting, recorded 5 parties to proceeding 6 petition for, where filed 1 revocation of Adulterated liquors, making or selling 983-9&i Adultery, cause of divorce 1285 consequence of husband separating from wife and living in 1845 on right of wife to dower and years' pro- vision 2102, 2110 fornication and 1041 Advancements, accounted for 1483 refusing to accotmt, effect 1485 schedule rendered 1484 Advances, lien on crups in favor of those making. .1799, 1800 Advertisements^ defacing, &c 981 Affidavit, answer verified, effect of 344 administration, for letters of 1381 upon presenting claim to administrator, &c 1425 arrest 393 arrest and order, how served 290, 297 arrest vacated on, and opposed by, when 317 attachment, where filed 3.")5 bastardy, to obtain warrant in 81 certified, how 031 claim and delivery of personal property 332 continuance of action 401, ■103 divorce and alimony, filed with complaint for, provisos . 1287 injunction, issued upon and served with 3.39 motion to vacate, may be opposed by 345 referee appointed to take, of person refusing to testify (5) 594 removal of cause to anothercoimty 196, 197 supplementary proceedings, in 488, 490 to obtain order to call on persons having property of judgment debtor, or owing him, to answer 490 to issue process to officer out of coimty 929 Agreenient, in lease to repair, how construed. 1758 between executor and creditor to refer claim 1426 Alias summons, when issued 205 Aliens, Section actions by, lime of war not counted 165 contracts of, validated 8 bold and convey lands 7 Alimony, affidavit filed with complaint, provisos. 1287 divorce from bed and board, what, granted in 1290 pendente lite jo^j power of court to issue writ of possession, when real estate assigned as 1398 security for costs on application for 1294 superior court grants 13&J feme lunatic entitled to 1680 wife not suing for divorce, entitled to, when. 1293 Allowances to attorneys, by court, when 1948 to parties in partition proceedings, how paid 1903 Amendment of process, does not discharge bail 320 when and how allowed 201, 2?J-274 Annual statement, pubUcation by clerk of county commission- ers, neglect, &c 713, 714 Answer 338, 246 contents . . aj3 defences and coimterclaims by 345 demurrer, answer in lieu of, when 341 overruled, allowed, when 279 filed, when 307 filed by parties notified to show why they should not be bound by judgment 234 frivolous, judgment on 388 limitation set up in ]38 motion for judgment on, by defendant 249 new matter in, deemed denied 268 not filed in action to recover realty, until bond given 237 objection not taken by, waived ; exception. . . iM3 real estate, when title to, is in controversy. . . 836 sham and irrelevant, stricken out 347 slander and libel 306 Appeals* FROM JUSTICE OF THE PEACE. accused may take, in criminal proceedings. 900 justice transmits papers to appellate court 901 copy of complaint to be given either party on payment of fees 903 bastardy 33 court compels plaintiff to secure costs on ... 604 costs in 542 heard on original papers 881 execution how stayed on 883 effect of 875 when and how to be taken 876 written notice of, not given, when 877 return of, to be made 878 defective, amended 8T9 docketed by clerk 880 undertaking on 888, 884 restitution of property, when ordered . ... 886 INDEX TO VOLUME I. 835 Appeals— Continued. Section landlord and tenant, increase of undertaking upon '^'' plaintiff appealing, and not recovering great- er sum, does notrecover costs 506 FROM INFERIOR COURT to superior court °^ FROM CLERK OF THE SUPERIOR COURT in matters of law US, 2S2 no undertaking H''' 252 how taken, and when 116. '^^ duty of clerk on, prayed 83^ when judge decides 255 In proceedings touching executors and ad- ministrators 1464, 1465 in processioning '"'^ from county commissioners 8039, 2056, 2063 FROM SUPERIOR COURT case how stated and settled; notice, penalty on judge 550 controversy without action costs on, generally entryof 55U execution not suspended, imless bond given 519 from decision of judge 256, 418 in/orvia pauperis 553 intermediate orders affecting judgment re- viewed by appellate court 562 judgment by appellate court against party cast and his sureties, amount ascertained in case of default 565 judgment for money, security to stay execu- tion, new undertaking on sureties first becoming insolvent ; perishable property 554 judgment how secured 435 judgment of appellate court on 563 judgment roll, copy of, sent to supreme court. 551 judgment to deUver document or personal property, it must be deposited or security given 555 judgment to execute conveyance, it must be executed and deposited 556 justice of the peace, from, tried at first term of superior court 565 rtcordari, costs secured on 661 security given or deposit made, unless waived 552 security required, on judgment to deliver real property, or for sale of mortgaged prem- ises 557 proceedings stayed upon security given — 558 substitutes for, certiorari, recordari and sii- persedeafi, as 545 supreme court, appeals taken to 945 sureties justify or undertaking of no effect. . 560 taken by whom, and in what cases 547-648 undertaking part of record sent up 663 FROM SUPREME COURT, by state to U. S. supreme court, costs in 638 Appeals— Continued. Section IN CRIMINAL ACTIONS. in criminal actions 900-902, 1181, 1234-1337 by defendant to supreme court 1S34 by state in what cases 1237 convicted persons, right of, without security 1233 court allows bail, pending 1181 judge to grant, and defendant gives security for api)earance 1236 from mayor, &c., to superior court 3819 perfected and settled as in civil actions 12»4 in road cases from board of supervisors to county commissioners 2023, 2056. 2063 and from county commissioners to superior court 2089. 2056,2063 Appearance of defendant, equivalent to service of sum- in person or by attorney 109 Apprentices bound by indenture * by whom H duty of clerk in binding 14 education of 13 masters of, what to provide 13 misconduct of 16 refusing to serve, may be compelled 15 service, teim of 1^ white child, not bound to negro 12 who may be apprenticed 1 1 Arrest. defendant arrested, gives undertaking; form 299 how discharged 298 in prison for lack of bail, may give; bond returned to court ^18 in what cases 290,291,293,609,850 motion to vacate order or to reduce bail before judgment 316 order and affidavit with copies delivered to sheriff, how served 296, 297 order of, obtained on affidavit 293. 852 from whom obtained 292, 851 where issued; form; time to answer; no- tice to vacate 295 offenders, arrest of, by whom made, 1134, 1125, 1129 officers break open doors, when 1127, 1128 peace officers may, without warrant when. . . 1126 persons under, on criminal warrant, ivhere and before whom taken 1138, 1141 Sunday, no person arrested in civil actions on (5) 291 undertaking upon order of 294 of bail delivered to clerk and notice to plaintiff and sheriff 304 vacated on affidavit, opposed by affidavit. ... 317 warrant, criminal arrested without, to have immediate hearing H^O witnesses and jurors in civil actions, exempt from, while attending court 1367, 1735 woman, exempt from, in civil actions 291 836 INDEX TO VOLUME I. Arson, Section and other burnings 985 Ai'tivles of agreement, forming railroad companies and other cor- porations 007-882, 1 93a See liailroad Companies^ Corporatiowt. Artificial islands, or lumps, penalty for erecting 986 Assault, action for, limitation punishment 150, 987 followed by death in another county or state, offender indicted in county where assault was made 1196, 1197 with intent to have carnal knowledge of married woman 1101 to commit rape 1102 Assets, account, report, &c., evidence of, when 1472 crops ungathered at decease, personal 1407 distinction between legal and equitable, abol- ished 1406 executor, »S:c.. brings action to recover, or to recover possession of real property or for injury done to such assets or real prop- erty 1501 new, to be inventoried 1398 proceeds of sale of realty to pay debts, per- sonal 1404 real, what 1405 sufficient to pay one or more classes of Intes- tates' debts, what judgment 1467 insufScient to pay all the claims in any class, what judgment 1468 trust estate in personalty, deemed personal. . 1403 Assignee, action by 177 costs against, after action brought S39 Attachment, action to recover notes, &c., of defendant, prosecuted by plaintiff, bond of indem- nity given 371 affidavit to procure, sets forth what ^49 defendant appearing, may move to discharge atiarhment: discharge allowed; effect of; 373 undertaking given 374 defendant recovering judgment, bond of plaintiff and bond taken by sheriff liable. 372 execution on property incapable of manual delivery 303 garnishee declaring debt due or property de- liverable at a future day, what done .368 denying he has property, issue to be made up 360 failing to appeir, proceedings against, judgment, when conditional, when ab- solute 306 confessing articles In his possession, ar- ticles valued, and judgment tor value 307 judgment against 364 stating articles deposited with him, how exonerated 367 who summoned as, and how .364 habeas eorpua, writ of, ofQcer failing to obey. 1637 Attachment— Continued. Section judge refusing to grant 163f issued, when 318 in what actions 34? judgment, how satisfied 3Tij judicial, issued when :)iri justices, code of civil procedure applicable to. 853 issued by, when 350, 351 levied on land; its effect, what done 354 laborer in danger of losing his lien, has rem- edy by - 1795 officers of corporations, debtors and individ- uals furnish certificate of defendant's interest, or of the property 309 perishable property, when sold 300 person replevying, to give undertaking; property replevied before sale 30! property claimed by third person, he may interplead 375 sets forth what 349 shares, interests and profits, of corporations attached 362 sheriff returns warrant, with his proceedings thereon ; copies delivered to him 376 summons, how served 348 sureties, exceptions to, and justification of. 378 secm-ity , how increased 377 undertaking, before issuing warrant, how conditioned 366 not affected because of irregularities 358 vacated when, and by whom — 877 vessel, when sold 860 warrant, by whom issued If not founded on contract, or over two hundred dollars 351 how served 350, 352 how executed 359 procured, affidavits when and where filed. 356 to whom directed, and what to require 357 when issued by justice of the peace 360, 388 Attorney, addresses court and jurj', how long 30 argues law and fact to jury 30 allowances to. by cr'urt, when 1W8 clerks cannot practice as 28, 110 complaint, failure to file, penalty 22 county commissioner cannot act as. In his county 27 debarred 26-27 fraud of, penalty 28 judgment against, retahilng client's money . . S4 justices of the peace cannot act as. In their county 27 licensed by supreme court 17 oathof 19 of another state, not to practice without license 18 party may appear bj' 109 power of, when attorney required to file 29 prayers of, for instructions to be in writ- ing 416 punished as for contempt 664 See tounael. INDEX TO VOLUME I. 837 Attorney general. Section action to annul corporation, when and how brought by 605, 1969 action by, to vacate charter 604 upon information 607 brings action against corporations 686 certifies amount of costs in appeals by state to the U. S. supreme court 538 private relator brings action on leave of, when 608 railroad companies, institutes action against, for forfeiture of charter, when 608, 1969 See vol. n. Attornment, conveyance of rents, reversions or remain- ders, complete without 1"64 deeds for land good, without, when 1445 Anthentication of records, See vol. II, Appendix. Bail, action against, limitation — (Ij 155 adjudged sufflcient, what done 308 costs to pay, when 319 defendant in prison, may give 318 may arrest 301 may surrender 300 deposit in lieu of 309,311 when paid into court by sheriff, &« 310 appUed to plaintiff's judgment 31S exonerated, how 303 in habeas ct>rp?fcs, when party allowed 1647 justification of ; new trial 305, 307 liable to sheriff, when 315 not discharged by amendment of process — 820 in offences not capital, taken by magistrate. 1139 duty of magistrate taking 1140 not allowed or not given, eiccused taken be- fore some magistrate of the county, whence warrant issued 1141 proceeded against by motion 302 quaUfications of 306 sheriff liable as, when 313 liability, how enforced 314 substituted for deposit 311 undertaking of, delivered to clerk; notice to plaintiff and sheriff 304 allowed criminals, when 1156, 1181 bonds of persons in custody, taken by sheriff, how sued on 1232 court allows, pending appeal 1181 defence good for principal, good for bail. . . . 1233 may arrest and surrender principEil before esecution ; suiTendered after recogniz- ance forfeited, bail not discharged 1330 persons surrendered may give other 1231 prisoner let to, recognizance filed with clerk. 1102 sheriff allowing release of prisoner without. amerced and indicted 1231 may take, when 1180, 1232 does not become 1180 who may. persons charged with crime and imprisoned 1161 not imprisoned 1160 Banks, Section action on notes of, not barred 174 against stockholders, barred 175, 176 Bastardy, alBdavit to obtain warrant in 31 allowance to mother 35 appealsin — 32, 33 bonds and costs in 32 illegitimate child legitimated by father 39 issue of paternity 32, 33, 35 trial of postponed, when 34 justices of the peace have exclusive jurisdic- tion of 31 legitimation, effect of 40 maintenance, execution for 37 mother, refusing to declare father, fined; bond required 33 putative father, how punished 35 committed to house of correction or ap- prenticed 3,8 statute of limitations in 36 warrant, when issued 31 tor putative father 32 Battery, action for, limitation (3) 156 Betterments, claim for by defendant 473-487 Betting, at cards 1042 Bigamy, what and how punished 988 Bills, bonds and notes, days of grace on 43 for money, negotiable as inland bills of ex- change ; indorsee may sue, when obligee may 41 indorsers of negotiable securities liable as sureties SO interest on 44 payable on demand -45 on securities for payment or delivery of specific articles 46 obligations taken in judicial proceedings for benefit of suitors, payable to clerk or offi- cer, suable in name of state 51 of exchange, damages on protested, in vari- ous places ■ ■ - 48 drawn or indorsed in state and protested. bear interest from time of payment 47 orders in writing; drawer or acceptor liable; protest and notice before action against drawer 42 protest, evidence of demand 49 Blackmailing 989 Bond, administrator 1388 action on, where brought 193 adopting minor ■* bastardy 32 collector ^3&4 costs, for; required by clerk before issuing summons ^^ mortgage in lieu thereof 117 I 83S INDEX TO VOLUME I. Bond— L'outiaued. Section uot required in appeals from clerks. . 116, 252 defendant to give, in action to recover land 117, 237 executor ; 1515 remedy on 1516 action on, where brought 193 must give new sureties on, when 1518 forthcoming, of personal property, who to take 463 surety furnished with list 464 how proceeded on 465 guardian, increased on sale of property 1574 property in common, one bond 1576 recorded by clerk, action on 1575 renewed every three years 1581 mortgage in lieu of 117-122 obligation, &c., in which ancestor has bound his heirs, how put in suit 140J See offlxial Bonds, Undertaking. Book-debt, how proved 691-693 copies, evidence 593 Books and papers of ofSoe; refusal of defendant to dehver 612 or writings to be produced by parties ; effect of failure 1373 See ExeciUioa. Boundaries, &c., between counties, how settled 781, 722 Brands, f jauduleut use of 1040 Breach of tlie peace, person committing, in presence of court, re- quired to give security, or imprisoned. . . 1224 persons present at, may ari'est 1 121 persons summoned, assist 1125 Bribery 990-992 costs in pro.secutions for, when paid by state, 742 Bridges, breaking, injuring 993 causeways and; width 2026 contracts to build, when binding on coun- ty 20:i4-2035 draws erected in, when and by whom 2017, 2051-2053, 3719 expenses for maintaining public, borne by county, when 8060 hollow, made by order of supervisors 2029 mills and ditches, ownere of; on and across roads, to keep up bridges; penalty... 20.36, 20.57 over canals, drains, &c 1086 railroad and other road companies to keep, over highways, penalty 8054 solicitor prosecutes for injuries to 8055 toll, allowed when; builders to keep in re- pair or forfeit toll and be indicted .8046. 804? bonds of owners, taken by county com- missioners ; persons injured, may recover damages 8048 Burglary 995-997 Burnings 985 Burnt and lost records. Section action on official bonds destroyed 08 certain lost deeds and other writings re- stored and validated 70, 71 color of title, how determined *1 conveyances lost, how establi-shed 64 copies of, and other instruments, bow re- gistered 66 copies, records and registrations of, same force as originals 68 court records and transcripts, admissible to prove contents of destroj'ed deeds, wills, depositions and other papers 05 evidence of, certified copj- by proper officer is 55 judgments destroyed, how perpetuated 60 new registration of 56 rules for filing petitioui and motions con- cerning 67 title, written evidence of, executed before destruction, valid 69 \\ ills destroyed, contents of, how established 59 lost copies of, probated 57 certificate thereof evidence 58 witness ticket destroyed, how made good ... 63 Camp-fires, penalty for not extinguishing 54 Canals, assignees bound to repair, as original owners 1-309 commissioners assess and apportion labor, report, on confirmation, to stand as judg- ment against partieii I.'106 fences or paths across, made by proprietor, when 1300 injuries to 1098 interested parties contribute towards repair. 1310 opening drain into, of another, proceeding. . 1305 proceeding to repair 1307 proprietor caimot open drain within thirty feet of canal 1304 state's interest in, how controlled 1691 width of land condemned for 1708 Carteret, sheriff, 4 TO MAKE PARTITION, compensation, duties and oath of, 1892-1896, 1901, 1902, 1913, 1910, 1922 TO BUILD mLLS, compensation 1863 duties yjid powers of 1850-1853 ALLOTTING YEAR'S SUPPORT, duties and powers 2122, 2123, 2132 Commissions, on final account allowed executor 1524 guardian 101 3 Commitments, what to state 1163, 1238 Common Law, in force unless altered by statute 641 Complaint, allegations not denied, admitted 268 causes of actions joined in 267 contents of 232, 233 demurrer to 239 objections specified 240 and answer to causes of action in 246 filed when 206 failure 283 in action against county and mimicipal cor- porati:)ns, verification and contents 757 to recover debt for purchase of land, what to set forth 2M in special proceedings, when filed 281 libel and slander, how stated in 265 objection not appearing, taken by answer. .. 241 official bond, in action on 1884 proceedings for year's support, content*^ of.. 2130 842 INDEX TO VOLUME I. Compromise, Section offer ot defendant to 573 effect *"■* Concealed weapons, carrying, a misdemeanor IOCS Concealing, birth ot cUild '*'< Condemnation, of lands by railroad, &c., companies, assess- ment of damages 169S-1V09, 1943-1951, S>010-»13 Conditions, precedent, how pleaded 203 Confession, of judgment without action 570-572 Congress, act of, regulating authentication of records. Vol. n, Appendix, naturalization. Vol. II, Appendix. | removal of causes from state to federal court, Vol. II, Appendix. Conspiracy, to abduct child 9"'* Constable, attending jury sworn 927 board of supervisors to f umish, with orders appointing overseers; to apply to board for orders, and serve the same in twenty days ; penalty on both for neglect 2043 bond of, registered copy, evidence; fee for registration ^^ I executes notices in matters in justice's juris- diction ®^ feesot 5742 oath of 642 penalty for failure to execute process, or making false return m2 powers and duties '^^ special, when appointed ^5 town, to serve all civil and criminal process directed to him 3810 vacancy,how fiUed 646 Constitution, of the United States, Vol. II, Appendix. of North Carolina, Vol. II, Appendix. art. 7, abrogated, exceptions 818 no one can bold office contrary to 1B70 Contempt, assuming to be officers, punished as for. . .(3) 654 board of commissioners may punish, when. . 652 certain acts in view of court, tending to interrupt court (D, (2). (3) 648 summarily punished (iSO clerks punished for U) 8^4 commonlaw ot, repealed (9) M8 disobedience of process (4) 648 executors and administrators failing to render annual accounts after notice, attached as tor '''OO Jurors summoned, guilty of Improper con- duct, punished as for (5) 6M magistrates, interior, punished as for (6) 654 misbehavior of ofBcer t8) 648 Contempt— Continued. Section not committed in presence of court, offender may show cause, how punished 653 parties and attorneys (3) 654 proceedings as for ^^ what necessary 656 publishing inaccurate reports of coui-t pro- ceedings (^ 64S punished how ^^ by whom *** referee, misbehavior, &c., before (2) 648 refusal to be sworn or answer (6) 648 otparties ^°* sheriffs, iic, punished as for 664 summoned as witnesses, not appearing, pun- ished as tor W 654 supplementai-y proceedings, disobedience to order, punished as for 500 trustees, ordered to deposit, tailing, punished as for 38£ Continuance, ottrial, when ^1. *** Contracts, joint, suit how brought on 187 and several, smnmons how served ; when not served on all defendants, how plain- tiff proceeds 222 paities not summoned in action on, may be, after judgment 223 tor sale or purchase ot office, void 1871 lease in writing when 1'^ new, to repel bar ot statute ot limitations, in writing l™ of aliens, validated * corporations, when in writing and under seal *** to answer tor the debt, &c., of another, or to charge executors, personally, must be in writing to sell land, and certain leases to be in writ- ing and registered 1264, 1554 underand without seal, limitations on.. 15^ 155 with Cherokees, to be in writing 1553 Contractors, commissioners and public officers cannot be. 1011 Contribution, among legatees and devisees, how compelled 15.S4 decree for '539 executor petitions tor. &c... 1541 specific legatee or devisee, when entitled to.. 1585 Controversy, coiu-t may determine: all parties may be brought in; defendant may interplead. . . 189 without action, how determined B67, 669 judgment roll 568 Conveyances 1S45-1S80, 164&-1554 See Dads and Convij/ancu.—Void Contracts and Fraudulent Comeyanett. 155S Copartners, acknowledgment ot one, after dissolution does not bind others 1^1 joint contracts ot, suit how brought 187 INDEX TO VOLUME I. 843 Copy, Section of book account, evidence when 593 of certain surveys and ofBcial writings, com- petent evidence 1342 books, papers and documents, how ob- tained 678 deed registered in wrong, may be regis- tered in proper, county 1253 lost will admitted to probate 57 certiflcate thereof, evidence 58 of lost papers or pleadings may be used 600 registered deed, evidence, unless original required 1351 summons, when and on whom served 217 proof by, of will or deed in other state 1341 Coroner, acts as sheriff, when 658 bond, certified copy of, is evidence 662 conditions, who to take, renewal, &c 661 duty of. physician summoned when 657 inquest how conducted by 657 jurors before, allowed compensation, mile- age and per diem 659, 660 process how served by 598 sheriff, removed from office, duty of 2071 coroner gives bonds, and takes oaths of office befce acting as 2072 Corporations, action against, judgment roll filed with sec- retary of state 620 to annul, when and how brought 605 leave to bring, how obtained 606 answer, by officer, on oath 258, 492 articles of agreement 677 proved, recorded, sum paid, penalty on clerk 678 fees of clerk for recording 680 attachment, officer to furnish certiflcate of stock, &c 369 attorney general brings action against, when 604-608, 686, 1969 banking, forbidden by, when 684 by-laws of, regulate meetings 663-665 chapter sixteen appUes to, exceptions 701 charter of, expiring, continued to wind up. . . 667 clerk to issue letters of , &c 679 contracts of, when in writing 083 conveyance by officer selling, what to set forth 674 copy of articles, evidence when 682 deeds by, how executed 685 void as to existing creditors, &c 685 debts of, to be paid and surplus distributed 670, 698 dissolved, for what .... QO-i dividends, when not declared by 681 execution against 619,671, 672 exist how long 667, 687 expiring, receivers appointed C68 first meeting, how called 605 foreign, action against, where and by whom brought 194 franchise, sale of 673 674 Corporations— Continued. Section purchaser of, what action to bring 675 injunction, busmess not suspended unless undertaking given 343 insurance by, forbidden 677 interests and profits of, may be attached .... 362 judgment of forfeiture against 617 jurisdiction over receivers and trustees of . . . 669 land, amount held by, and how conveyed 666, 085 excess of, how sold 692 grand jury to report excess 691 applicable to what corporations 693 forfeited to the state, not subject to entry, how sold and conveyed 692 not held more than thirty years 690 letters of incorporation, and copies, evidence, when and of what 682 liability of, after sale '676 non-user for two years, a forfeiture 688, 694 officer seUing, conveys what 674 personal property of, sold independent of francluse 672 powers of , 663 proceedings for dissolution, summons how served 694,695 property of new corporation, not exempt from taxation 698 not exempt from execution on account of mortgages executed by 1255 receivers appointed 379, 619 duty and powers of 668 pay debts and surplus 670 sales under deeds of trust, what passes, pur- chaser a new corporation, succeeds to certain rights and duties 697, 698 shares in, personal estate 689 attached when 362 statute of limitations, not applicable to actions, on bills, &c., of moneyed corpo- rations, nor for penalties against direc- torsthereof 174, 175 actions against stockholders of certain banks, barred 176 supplementary proceedings, answer by offi- cer of 492 stock issued by, contrary to by-laws, misde- meanor 664 swamp lands, proprietor when declared a. . . 1315 by-laws to be obeyed, &c 1318 corporate name and officers 1316 court may dissolve 1828 owners and shares 1317 payment of dues 1319 privileges of infants 1320 See Swavip Lands, Vol. II. taxes on legislative bills, amendments,iS:c. 690, 2004 taxes collected how, on property of, and what sold 699 order of court not necessary to sell for, when 700 Costs IN CIVIL ACTIONS, actions prosecuted by the state est 844 INDEX TO VOLUME I. Cost8-Coutiaua\. Section against assignee after action brought 630 corporations, how collected 618 executor, &c ^ infant, payable by guardian 5« sm-eties prosecuted tor failure to maintain action ^ trustee of espress trust ^ allowances to parties, as °^ allowed plaintiff ^ defendant "fj discretionary ' appeUant from justice of the peace, does not recover, when.. Costs— Continued. SbctioN 6CG bastardy, defendant to pay when 82 caveated wills, how paid in °1"' defendant unreasonably defending action, by whom paid -J^ divorce and alimony ~^^ execution on, paid to clerk, penalty *'• executors and creditors, allowed against, when ■• guardians, in certain cases against default- ing, by whom paid l*"'* habeas corpus, in, how awarded 1^60 homestead and personal property exemp- tions, in laying off 510, 521 in name of state for person or corporation. . . M, appeals by state to U. S. court B38 appeals from justices' court '>*^ plaintiff may be compeUed to secure B64 appeals generally ^ pauper suit, not recoverable in 21. special proceedings °*^ interlocutory, how adjusted ^^2 judgment, how inserted in ^'~ landlord and tenant act ^™ 1 lien law, under ^'°' lowlands, in proceedings to drain, by whom miii^^v.v;.v.-.v.-:.v.v.-:.::::.::::::.-V8o.,i8:3| partition proceedings, how paid m IW., im>. proceedings for year's support "'^' mto road cases, how paid ^^ supreme court, execution for, on appeals to.^ 9«« undertaking tor, mortgage in lieu of 117, 120 afBdavit of increase of value 1-' foreclosure J-" not required in appeal from clerk H" IN CRIIHINAL ACTIONS, before judges and magistrates H''^ bill of, open to inspection '^ convicted persons must pay 1^1 1 county pays, when ^89 wherein offence committed pays '■" Btatoment of, for which county is Uable, filed with commissioners '^ defendant fading to pay flneand, may be ar- rested pays upon conviction, confession or sub- mission ^^ Imprisoned party to pay, before discharge. 904, Wj incurred by county in prosecuting charges of bribery ,when to be charge against state . . V42 itemized ' byclerks ^ by justices of the peace '*' judgment, confession of, to secure fine and, does not operate as a discharge of origi- nal judgment ' ■*" justices of the peace, before, by whom paid . 895 prosecutor, pays when '»'. '^ imprisoned for non-payment, <»» by county treasurer ''• commissioners, power of, to dispose funds . . -68 costs incurred by, in prosecuting chaigee of bribery, when paid by slate "i^ paid, when approved and audited ^SS paid by , in what cases '3' couru, transfer of suits from, to superior ^ nnanc^ommittee.'.; .■.■.■.■.■.".'.■. ■768; 759, 700, 701-768 money in bauds of clerks and sheriffs, may be used by, until called for, by owners. . . 1809 officers failure to perform requirements, &c., . . 766 misdemeanor failing to pay over and account for funds. . 7M how and when qualillcd • (28) 707 760 INDEX TO VOLUME I. 845 County— Continued. Section revenue and charges, annual publication made '''53 taxes collected by sheriiT as state taxes 723 trial in, where cause of action arose 191 where offence committed 1152, 1193 where subject-matter situate 190 where plaintiff or defendant resides 192 trust funds and property, held by county treasurer 718, 779 wherein offence committed, pays costs, re- ceives fmes, &c 741 witnesses in criminal actions, paid by, &o. 740, 744 defendant's, paid by, when 747 County Commissioners, accounts not audited by, unless itemized and verified by claimant 754 action, when brought by, on bond of deUn- quent officer 775 approving insufficient bond of clerk, Hable as sureties 73 bonds issued by, for wor)£ houses 796 to take of county officers (28) 707 chairman may send for persons, papers, &c., and administer oaths (30) 707 clerk 'i'16 compensatioii 710 duties 712,713, 1878 compensation of board 709 not paid for caUed meetings 706 contempt, punished by 652 copies of records of, evidence 715 court houses and jails, buUt and repaired by 782 dockets for justices of the peace furnished by 831 election of, biennial 716 furnish books, &c., for clerk's office 113 jury for superior coiirt drawn by — 1722-1731 failing to draw, what done 1732 how drawn for special terms 915 meetings, how called, when held 706 neglect of duty — 711 official bonds, cannot be sureties on 1887 when liable us sureties on 1879 when liable for approving insufficient 1880 record of vote approving, conclusive evi- dence of Uabihty and guilt 1881 powers of 707 to appropriate county funds 753 subscribe to railroad companies, how, when 1996, 1997 estabhsh and discontinue roads, ferries and bridges 2014,2023,2038, 2039 approve contracts for building and repair- ing bridges 2034,3060 permit toll bridges to be built 2015-2047 regulate tolls of f en'ies 2046 compel owners of ferries and toll bridges to give bonds 2048 take bonds of sheriff 2066 elect slierid, when 2074 failure to perform duties. Sic, liable for loFS, &?.,,, . 3075 Connte Commissioners— Continued. Section procffisioners appointed by 1984 purchase of coiuity indebtedness by 718 qualifications, &c., of 708 report, annual, of public funds, made to. 728-730 statement of costs, for which county is liable, to be filed with 7.36 treasurer, action on bond of, when brought by 771 trust funds, condition of, yearly exhibited by coimty treasurer to 781 record of, kept by 780 vacancy in board, how filled 719 in certain county offices, filled by 720 work houses established by 78G-790 County Treasurer, bond, failure to give, vacates office 766 of sheriff acting as 769 action on, when and by whom brought 771 books, papers and moneys delivered to suc- cessor 767 committee to examine, &c 774 claims against county, when paid by 777 speculation in by, forbidden 772 compensation of 770 duties of 773 failure to perform 776 fines, &c., duty of, concerning 96-99 neglect 191 county, forfeitures, &c., paid to 724 files statement of , &c 736, 727 office of, includes person acting as 770 may be abolished by justices of the peace. 768 officers of coimty, failing to settle, fact re- ported to county commissioners by 775 remitted recognizances, when refunded by. . 1207 tax on articles of incorporation received from clerk and paid to common schools, &c. . . 678 trust funds and county property held by . .778, 779 annual condition of, reported to county commissioners 781 Court, and j ury , how long attorney may address — 30 contempt of 648 how punished 649 summarily 650 houses repaired by county commissioners. . . 783 means clerk, when 133 records of, prove contents of lost deeds, de- positions and other papers 65 transfer of suits from county to superior. ... 944 tries issues of law unless referred 308 issues of fact, when jury waived 403 other issues, &c 399 See Inferior, Justices of ttus Peace, Sjiperior and Supreme. Creditors, bona pie conveyances on good consideration, without notice, valid against 1548 deeds, &c., to defraud, void 1515 may institute proceedings against personal representative for accoimt and settle- ment I'HS 846 INDEX TO VOLUME I. Creditors— Continued. Section proceedings for account against executors, &c et atq. 1449 voluntary conveyances not deemed fraudu- lent as to, merely because of indebted- ness of donors ; indebtedness, evidence of fraud to be left to jury 1547 Crimes, &c., abandonment of family by husband 970 f ailm-e to provide support, presumptive evi- dence of 971 ftbductionof children 973 conspiracy for 974 abortion, to administer medicines, &c., to pregnant woman 975 procuring miscarriage 976 accessories, felonies before the fact 977 how punished 980 after the fact 978 principal not attainted 979 adequate support, failure of husband to pro- vide 972 adultery 1041 adulterated liquors, making or selling 983 poisonous 983 receipts for 984 drugs, making and selling 3142, 3145 advertisements and legal notices, destruction, &c.,of 981 agriculture, board of, violation of rules of .(2) 2189 animals, cock-fighting 2183 conveying in a cruel manner 2486 cruelty, any act of 2487 food for impounded, failure to provide 2484 glandered, sale of 2488 to be killed 2489 money for impounded, misapplication of. . 8818 releasing impounded 2819 riding horse, &c. , in stock law territory . . . 2829 torturing, &c 2482 Arms, public, buying, selling, &c 8556 refusal to give up, &c 8558 arson and other burnings 985 appraiser or assessor, conspiring with debtor or creditor 517, 518 artificial islands, &c., erecting, eTty, real. Blopement, by wife with an adulterer, consequences, 1481, 1844, 2102, 2116 Kmbezzlement, See Crimes, Emiezzlement. agent, &c., arrested in actionfor (2) 291 Entry, on real property, when sufficient, &c 140, 145 Equity suits, transfer of , to superior court 944 Error, or defects in pleading, immaterial, not re- ga.ded 270 in registration of deeds and other instru- ments, corrected by petition ; appeal 1266 writs of, abolished 544 Escape, action tor, limitation l-'iO sheriff permitting, ot debtor, liable tor debt.. 2083 See Crimes, Escape 1021-1023 Estates, Conveyance to uses, possession transferred to use without livery 1330 in joint tenancy, share of deceased co-tenant does not vest in survivor, proviso as to partners in trade 1326 tail converted into tee simple 1325 ot records of county commissioners i la ot surveys and official writings, compe- tent 1341,1343 incompetent, what 1354 in land suits in Haywood and Henderson counties l*!^ mortuary tables received as 1352 necessary to support title vmder H. E. Mc- Culloch 1336, 1337 of demand ot payment ot bill, protest ot proper officer, is ^^ attorney in cases ot fraud, where state is concerned 1349 lost deeds and wills 1348, 2183 laws of other states and countries 1338 parties, rebutted B83 records of administration or letters testa- mentary in other states 1343 statutes, how received as 1338-1340 who may testify 580, 587-590, 1350, 1361, 1363 Exceptions, upontrial,when and how taken 412-418 Execution, GENERALLY. Advertisement, personal property, sold un- der 4«' real property sold under 458 against personal representative, form and effect 1«1. 1509 by representative 1^13 bastardy, execution in 3' bidders, no sale tor lack of, officer states what ■162 bond, forthcoming, of property 463 how proceeded on ^^ surety on, furnished with list 464 colts not exempt from, for payment of stand, 1798 confession of judgment without action 572 corporations ' highest bidder at sale, who deemed 673 personalty ot, sold under, independent ot franchise ' * costs on, paid to clerk, penalty, *'~ counties, to what, issu;ce.ssor or dece- dent 1^1* 854 INDEX TO VOLUME I. Execution— continued. Section form of 448 in action to recover land debt horses, account for keeping, &c., made out and fiied by officer 4G7 allowance made, for keeping 46G issues from what court and to what coun- ties 444 within six weeks, &c 470 judgment enforced by 441 may be paid before issued 438 justice of the peace, lien, and from what time 841 stay of, from what time and by whom granted 842 security on 843 kinds of 442 leave to issue, how obtained 437, 440 lien of, as to personal property 448 married woman, against 443 of capital offenders, method, &c 1243, 1214 on hen judgments 1791, 1794 party in, not discharged on habeas corpus or certiorari^ when 937 person, against, in what eases 447 principal, property of, levied on and sold un- der, before that of sm-ety 2101 property sold under 450 real, where sold 443 equity of redemption sold, deed to show what 451 rateable part, for, when 1509 return, failure to make due, judgment nisi, &c. 446 where made 444 noted on judgment docket, clerk sends copies 445 sale days 454 hours of, under 459 of land, notice served on defendants, in cer- tain cases on governor 457 of land, under private acts repealed 458 postponed from day to day, how long 455 selling contrary to law, penalty 461 supreme court, tor costs on appeal to 968 suspended when 256, 649, 554-561 bond required 256, 549, 654 tested and returnable, how 449 title of property defective, purchaser sues defendant In 468 CLAIM FOR IMPROVEMENTS, BEFORE issurNQ, not applicable to actions by mortgagee against mortgagor 481 defendant in action for land , flies petition for; meanwhile, suspended 473 annual value of land, how ascertained 474 defendant claiming allowance, plaintiff may have his estate valued without Improve- ments 482 value, how made 483 Execution— Continued. Section valuation paid, defendant takes premises 484 valuation paid into court; if not, land sold ; defendant not bound for deficiency 485 plaintilf under disability, proceeds of sale deemed real estate, and disposed of by court 486 defendant evicted by better title, recovers from plaintiff 487 plaintiif clahning a life estate, and paying defendant, allowance, recovers of re- mainderman 480 after offsetting damages, itc, and allowances for improvements, verdict for balance. . . 478 lien of such balance 479 value of improvements, how estimated 478 defendant not liable for more than three years value of land, unless he claims im- provements 475 rents balanced by improvements 477 PROCEEDINGS SUPPLEMENTARY TO, execution returned imsatisfled, defendan/ ordered to answer concerning his prop- erty (1) 488 not returned, order upon affidavit; contents of (2) 488 to issue notwithstanding, defendant may have certain property (2) 488 either party examined as witness (3) 488 not excused from answering, because it may criminate, nor because of fraud (5) 488 debtor leaving state, or concealing himself, arrested when, undertaking given (4) 488 transfer of property forbidden, when (6) 488 debtor of defendant in judgment pays sheriff when 489 person having property of judgment debtor, or owing him, upon afSdavit, ordered to appear and answer 490 joint debtors, how proceeded against 490 witness to testify as on trial of an issue 491 to appear before referee; compelled to answer; examination certified to judge, 492, 493 property not exempt, applied to payment of, exception 493 receivers appointed by judge; transfer of property forbidden ; other creditors hav- ing instituted supplementary proceed- ings ; notified, one receiver appointed . . . 494 clerk of the superior court files order ap- pointing receiver ; receiver provided with a copy ; property vested in receiver sub- ject to control of judge 405 order appointing receiver filed before he is vested with real property 496 property claimed by a third party or debt de- nied, receiver tries action 497 reference may be ordered by Judge, referee to report 4gg costs allowed judgment creditor 4M INDEX TO VOLUME I. 855 Execution— Continued. Section PEOPEETY SOLD UNDEE, equity of redemption (3) 460 what sheriff sets forth in deed 451 goods, chattels, &c (1) 450 homestead, for obligations contracted for its purchase (3), W BOl leasehold 18) «0 officer prepares deeds 471 trustestates (4) 450 purchaser holds the same discharged of trust : 453 PEOPEETY EXEMPT FEOM SALE UNDEE. gi-owmg crops, until matured 453 laborer's share of, &c I'l'SS debts, &c., prior to 25th February , 1867, what exempt (1) 501 since 25th February, 1867, and before 34th April, 1868 (2) 501 since 34th April, 1868, and before 1st May, 1877 (3) 601 since 1st May, 1877 (4) 501 appraisers summoned by sheriff 503 duty of 603 make return 604 to elect when 606 oath and fees of 508,3747 appraisal or assessment set aside for what, final when 623 assessors set apart personal property, and mal£eretum 518 costs, how taxed and by whom paid 510 of reassessment, how paid 521 defendant to elect homestead, &c 501-607 homestead, what included in 509 set off upon petition 611 levy made on excess, form of 605 officer making levy, refusing, &c., to lay off homestead 616 appraiser or assessor conspiring with debtor 617 with creditor 618 objections to homestead, when, where and bywhom taken 519, 620 objector to give undertaking 622 personal property, how appraised, return, how made 607 person entitled to homestead dying, who en- titled 614 petition filed and advertisement made 615 register to indorse on return, its date and to register the same 513 returns of homestead allotments, 13 executor, &o., absent, served by publication. 1623 age of "137 competent witness to wills 214C required to give bond 1388, 1515 de son tort, who chargeable as l-l^- who disqualified to serve as 2102 under disqualifications o£ age, absence, &c., allowed six months after reaching full age, or return, to take out letters — 2105 of deceased guardian to pay to clerk money belonging to ward 1022 oaths to be taken by 2169 renunciation of, how, when, &c 2103, 21C4 may invest funds in U. S. bonds 1594 and in certain bonds of the state 3590 can exchange old for new state bonds. 3580, 8590 duties of, &o., in assigning year's support 2120, 2122 stun allowed widow as year's support to be credited 10 same, unless impeached for fraud or gross negligence 8130 heir, conveyance by, when void 1442 jointly Uable for debts to value of prop- erty 1528, 1529 recovery, how apportioned 1530 husband administers on wife's estate, when, effect I'i'S dying after wife, but before administer- ing, his personal representative takes property I'*™ right to administer on wife's estate, how lost 1480,1482 inventory, return of 1336 compelled 1397 issues of fact or law arising on contested ad- ministration, transferred to superior court 1382 in proceedings by creditors against execu- tors, &c., to account, how disposed of.. . . 1458 in proceedings to make real estate as- sets 1440,1441 joint tenancy, executors, &c., hold in 1602 judgment, on taking account, where docket- ed 1«6 assets sufBcient to pay one or more classes, what l-*"" insuffloient 1408 every, against personal representative, what to declare 1409 none other, fixes lum with assets 1470 lien of, when and on what 1471 in favor of administrator, in case of fraud- ulent conveyance of real estate, when land cannot be sold 1447 lands devised to be sold, who to sell 1493 legacies and distributive shares recoverable by special proceedings IBIO by action at term 1511 payment of, ordered by judge 1512 Section Executors and administrators— Continued. share of absentee may be paid into court.. 1528 letters of administration or testamentary, how issued and tested 2172 limitation on bond of executor, &c., six years 154 against sureties on bond of executor, three years 155 creditor, against personal or real represen- tative, seven years 153 action by creditor on whom personal notice has been served, one year after service of such notice 155 claim presented, disputed and not referred, within six months after notice of rejec- tion 1427 money belonging to legatees, &c., after twelve months from quaUflcation ; exe- cutor, &c. , to pay into clerk's office 1543 clerk receives and receipts for the same... 1544 notice, time of, may be enlarged by clerk or judge 1403 six months, given to person having prior right to administer 1379 personal property, power to sell 1408, 1409 powers of sale under wills not affected by chapter thirty -three 1415 probates, &c., before July, 1809, proceedings in 1477 promises to charge executor, &c., person- ally, to be in writing 1506, 1552 public administrator, by whom appointed. . . 1389 when to have letters 1394 bond 1390-1392, 1395 oath 1393 power and duties 1395 real property sold to pay debts, proceeds re- maining after payment of debts to go as land 1405 descended, charged with debts, before land devised 1430 bid in by executor, &c., when 1505 sold to pay debts, when and how 1436 contents of petition 1437 parties to 1438 infants, how made parties 1439 issues of title joined, how proceeded with 1440, 1441 power of clerk, to order sale 1443 order, what to contain 1444 writ of possession, when to issue 1444 notice of sale, what sufdcient 1445 what real estate subject to 1446 judgment in case of fraudulent conveyance 1447 final orders not made before present con- stitution, transferred to superior court. . . 1542 real property under will, how and by whom sold 1508 record of, to be kept by clerk of superior court (2), (4), (5) 112 renunciation of those having prior right to od minister '^TU INDEX TO VOLUME I. Section Executors and administrators— Continued. renunciation, when 13S0 report, evidence of assets on day to which it relates 1472 retainer, not allowed 14;;0 revocation of letters for failure to give new bond, &c 1 520 sales of personal property, how made. . 1408, 1410 for cash, when and how obtained 141 1 of evidences of debt after one year — 1412, 1435 proceeds of, how secured 1413 hours of 1414 of real property 1436-1447 surety on bond in danger of loss, how re- lieved 1519 sin^jlus, paid over at end of two years 1488 sums to be reserved on payment 1489 taxes, liable for, when 3698 university, property paid to, when 1504 vouchers, presumptive evidence of disburse- ment, for all acting in a fiduciary charac- ter 1401 year's allowance 2116-3135 See Widow. widow can use stock, crop, &c., on hand un- til allowance assigned 1522 wife's right to administer on husband's es- tate, how lost 1480, 1481 Exemptions, arrest 291,1367, 1735 jury service 1723, 2869. 2580, 3281 roads, working on 2018, 2059, 2869 from execution 501-5»1, 1840, 2104, 2105 See Execution^ &c. Fact, issues of 891-393 how and where tried 394, 898 before clerk, transferred to next term 116 judge does not express an opinion as to 413 questions of, how tried 135 F9lse imprisonment, action for, limitation 156 False pretense 1025-1027 False return, byofHcer 1112 penalty 2079 to writ of habeas corpus 1653 Family, defined 2110 Fare, general assembly may reduce, on railroads. . 1961 Faro, banks and gaming tables 1044-1046, 1049, 1050 Father, Sec Child, Parents. Fee, conveyances and devises, unless otherwise expressed, construed to be in 1280, 2180 estate tail converted Into 1325 liomeste?,rt, construed by supreme court not to be in (4) BOl Fees, Suction action for, limitation 155 clerk supreme court, copying record 960 recording articles, of association, &c 680 commissioners, sheriff and justice of the peace, in proceedings by widow for year's allowance 2135 to make partition 1916.1922 county treasurer 770 jurors, before coroner 659, 660 persons appointed to sell land 1910 receivers (4) 379 referee 638 sheriff, carrying convicts to penitentiary — 2069 See generally. Vol. II, Feu. Feigned Issues, abolished 185 Feme sole, liability of, for antenuptial obligations, not altered by marriage 1888 Fences, &c. , injuries to 1062 See Vol. n. Ferries, how established and discontinued 2014, 8088 appeal to superior court 2089 tolls regulated by county commissioners; penalty on owner not abiding by rates. . . 2W6 owner of, may build toll bridge instead 2017 bonds taken by county commissioners, per- sons injiu-ed may recover damages 2048 penalty for keeping unlawfully, exception as to mail carriers 8049 Finance Committee, appointment, duties, &c 768-768 compensation of 768 oath of members of 788 officers failing to settle after notice by, &c. . 760 send for persons and papers 759 statement published by 761 Fines, book of, kept by clerks 96, 725 forfeitures and penalties, &c., paid to county treasurer, &c 96,7-34, 786 paid by county treasurer to common schools 98 quarterly statement of, filed by treasurer with clerk 727 Float bridge, penalty for fastening vessel to 2050 Foot ways, when and by whom made 2029 Forcible entry, and detainer 1028 Forgery, ;, crimes by 1039-1(M0, 2965, 8017 Former Judgment, effect of plea in penal suit, plaintiff may reply, what 938 evidence of 844 Forms, In justice's court 909 of oaths 8818-8816 of proceeding before justice of the peace tor INDEX TO VOLUME I. 859 Forms— Continued. Section Bummary ejectment of tenants holding over 1^^ to lay off exempted property 524 Fornication, and adultery 1041, 1845 Franchise, claimed by several, one action brought 614 of corporation, how sold 671-674 usurpation of, penalty 615 Fraud, action for, limitation (9) 155 ofattomeys 23 Fraudulent conveyances, deeds to defraud creditors 1545 voluntary deeds not, as to creditors, merely because of indebtedness of donor ; indebt- edness only evidence of, to be left to ]ury. 1547 deeds, &c., made to defraud purchasers tor value, without notice 1546 See Void Contracts and Conveyances. Free-trader 1837-1832 Freiglit, See Railroads. general assembly may reduce, on railroads.. 1961 penalty for refusal 1964 list of charges of, to be kept posted, not to be increased without notice, penalty 1965 discrimination in, unlawful, penalty 1966 imshipped for five days, penalty 1967 pooling and rebates forbidden 1968 attorney general institutes actions, when — 1969 Fugitives from justice, apprehension of, governor may employ agent or offer reward 1169, 1170 arrested by what magistrates 1165 record of , kept, and transmitted to governor 1166 duty of governor 1167 outlawed, how 1131 sheriffs, &c., surrender, on order of governor 1168 Funds, pubUc, annual reports of. made by county officers to county commissioners 728 Gambling 1042-1052 money bet, liable to seizure 1051 Gaming Tables, destroyed, Sc 1052 Garnishee, confessing articles in his possession, articles to be valued ; judgment for the same — 367 declaring debt due. or property deliverable at a future da y, what done 368 tailing to appear, proceedings against 365 judgment against 364, 368, 370 stating articles deposited with him, exoner- ated by delivery 367 who, and how summoned 304 Gates, across cartways or highways 2057, 2058 General Assenably, elects justices of the peace 819, 820 Bee Vol, 11, Qentral 4«««i»6Iy, Ginseng, Section cannot dig, when 1053 Governor, appoints a special term, when 914 notifies county commissioners of the same. 915 judge to hold special term 913 justices of the peace for new townships, when 819 duties and powers of, relating to fugitives, 1167-1170 has affairs of railroads in which state has interest investigated by board of internal improvement 1719 See Vol. II, Governor Grace, days of. on bills *3 Grand Jury, drawn how 404 foreman administers oaths and marks on bills the names of witnesses examined. .. 1742 furnished by clerk with list of guardians, &c. ; to present names of orphans without guardians, and to inquire into actions, &c., of guardians appointed by clerk — 1609 jails visited by 785 not drawn for special term 921 witnesses before, when paid 743 Grantee, of real property may sue in own name 177 of reversions, rights against holders of par- ticular estates 1331, 1765 Growing Crops, larceny, &c., of 1069 Guardian and ward, ad litem, how, when and by whom appoint- ed. 181 all guardians subject to chapter thirty-five. . 1616 appointed by clerks of superior court, who take cognizance of orphans, &c 1566 accounts of, to be made annually 1580, 1617 failure, clerk orders account, attachment issues, and removal from office 1618 final account compelled, when 1619 account returned within three months 1677 retm-n compelled, when and how 1578 return of new assets 1579 bond, recorded by clerk, who may sue on the same 1575 given , increased on sale of property 1674 one bond, where property belongs to sev- eral 1576 renewed every three years 1581 failure, removal by clerk, after citation. . . 1582 action on, by solicitor 1584 receiver appointed in such action 1.585 compensation of solicitor 1586 clerk taking insufficient security on bond, liable on his official bond for loss, S:c.. 1614 and for other defaults 1615 compensation allowed 1613 disbursements and expenses allowed 1613 deed, guardian by, father may appoint, or wUl 1562 SCO INDEX TO VOLUME I. Guardian and ward— Continued. Section mother may, if father dead 1502 effect of such appointment 15(53 powers and liabilities of 1504 estate of orplian without guardian, how se- cured IGIO of estate 1571 appointed when father alive; but father has custody of person 1572 talces charge of estate, and brings actions. . 1588 estate without, managed by clerk 1676 grand jury presents names of orphans with- out guardians, and inquires names of, guardians 1609 foreign guardian may remove ward's estate, how 1598 petition to show what 1599 who made defendants 1600 petition proceeded with, as in special pro- ceedings 1601 infants, &c., sue by guardian ornextfriend.. 180 defend by guardian or guardian ad litem. . . 181 investment in U. S. bonds, &c 1594, 3596 leases, land, when 1591 sells timber, when 1596 letters of guardianship issued by clerli 1621 liable for debts, when 1593 for land forfeited for taxes, when 1595 for unpaid taxes 3691, 3698 lunatics, idiots, <£:c., guardian for, appointed by clerli 1670 superintendent of asylum, certifies to their lunacy or idiocy ... 1673 proceedings on application for guardian- ship of 1620 to sell land, &c 1950 moneys belonging to ward, paid into court by executor or administrator of guardian deceased, effect of payment 1622 natural guardian, mother is, it father dead.. 1565 notes assigned to ward on settlement 1592 parents divorced, custody of children, set- tled by court 1570 plate belonging to ward, to be liept 1697 proceedings against defaulting guardians, fine and costs by whom paid 1611 to condemn land, &c., guardian ser\'ed withprocess 1944 public guardian appointed by whom 1656 bond of 1.5.57 enlarged 1558 renewed every two years 1559 oath 1500 applies for letters when; revoked when; powers and duties as other guardians — I56I railroad purposes, proceedings to condemn land of ward for, guardian to be served with process 19-14 guardians of infants, &c., authorized by petition in superior court to sell lands of ward for railroad purposes 1956 receWer having property, guardian obtains it, how 1587 Guardian and ward— Continued. Sectiok resignation of guardian 160*: sales of perishable property hy order of clerk 1589 sales and rentings, how made 1590 estates of ward, how and when sold; peti- tion and contents 1602 property substituted for that sold, remams of same character as that sold 1603 ward indebted, property, how sold; soles of real estate confirmed by judge 1604 proceeds are assets in guardian's hands to pay creditors 1605 surety given, before guardian takes property 1573 in danger of loss, how relieved 1606 interlocutory order pending controversy . . 1607 surplus profits lent out; notes draw com- pound Interest 1592 trust, guardian abusing, removed by court, when 1583 tutor of person and guardian of estate ap- pointed 1567 in such cases, yearly sums allowed for support and education 1668 commissions and disbursements allowed . . 1669 Habeas Corpus, application, mode of making 1626 what to contain 1027 form and sufficiency of writ, defect not material 1629, 1630 when writ must be cranted 1628 penalty for refusal to grant 1631 when writ may issue without application — 1632 return to writ and contents 1633 no order made, without notice to interested parties 1634 writ of. ad testificandum 1663 may be issued by justices of the peace, clerks of the superior court and judges of the supreme or superior courts 1664 application for, what to contain 1665 how and by whom served 1606 fees and bond on service 1667 duty of ofTicers receiving 1668 prisoner after testifying, to be remanded.. 1669 judge need not make order for discharge until after notice to solicitor of district.. 1635 production of the body, when required in cases of 1680 officer failing to obey writ of, may be at- tached 1687 court, with attachment, may issue precept to coroner or other officer to bring up party detained ; neglect to make due return — 1640 penalty on judge refusing to grant the pre- cept 'Ml costs, how awarded 1660 contest on writ of, between husband and wife over custody of children, court or judge may award to either; appeal to supreme court aUowed 1011, 1063 when and by whom, application for, made, 1623, WSt INDEX TO VOLUME I. S61 Habeas corpus— Continued. Section when denied ^^~* no person discharged, shall be again arrested . tor same cause, under penalty ot $500, to | be paid party aggrieved ICSl penalty on officer faUing to obey order of dis- charge of person detained, how enforced 1040 but officers not liable for obeying order. . . ItiSO for neglecting to obey the writ or for refus- ing copy of process l^sa on judge refusing to grant attachment. ... 1C38 conniving at insufficient return 1642 on sheriff, failing to return wi-it 1039 . person detained, discharged, when 937, 1645 remanded, when 937, 1646 bailed or remanded, when 1647 party to writ entitled to subpoenas for wit- nesses ^^^^ persons committed for treason or felony to be speedil/ tried or discharged 1658 concealing person entitled to writ guilty of misdemeanor, aidei's and abettors, also, 1654, 1655 maldag false returns to writ a misde- meanor l'^^3 prisoner, when remanded 937, 1646 proceedings before court or judge in case of sickness of prisoner 1648 before court or judge on return of writ. . . . 1644 sheriff, &c., may call to his aid the power of thecounty ^'^f writs returnable, when 1656 how and by whom sei-ved 1657 Half blood, inheritance of C**) ^281 Hanging, assistants admitted to 1*44 private, unless otherwise provided by county commissioners 1~'*3 Heir, See Descents 1^1 commences new action within one year after non-suit, &c • 166 conveyances by ,within two years after quali- fication of administrator, &c., void 1443 dower, when assigned by 2110 may compel contribution ■ • 1534, 1535 of living person, limitation to, is to his chil- dren 1329 parent, when (0)1381 widow is, when (8) 1-^1 word "heirs" unnecessary in wills and deeds 1280,2180 jointly liable for debts of ancestor, &c., to value of property IS^"^! 1529 recovery, how apportioned 1530 Highway, law concerning 2014, 2035, 3038-304S See Hoads. Holograph, ,vms 2136,(3)2148 Homestead 601-52' See Execution— property exempt from sale. Section Horse Stealing 1066,1067 1062 Houses, broken open to prevent felonies, when. .1127, 1128 in elflim and deUvery, when ^ court, repaired by county commissioners. injuries to _ of correction, county, how provided, (17) 707. 786-801 =""""t,, 1058,1059 byflrelight on Sunday Husband, abandonment of family »'" ^"' aUenation ot, passes his own interest only, and cannot affect wife's right of dower. . 2106 competent witness for wife in criminal pro- contracts with wit e,what vaUd, what not,1835, 1838 consequences of, separating from wife and living in adultery 1^^ deeds by, and wife, how executed, proved and registered 1256 dower and land in lieu of, not liable to sale for debts of 3104,2105 interest ot, in real estate of wife, exempt from sale under execution 1840 lite ot, may be insured by wife for her use . . 1841 not liable for debts, contracts or torts of wife before marriage 1^22 liable for torts, &c., committed by wife .... 1833 for taxes on wife's land, when 3698 or wife, may testify in case ot divorce, as to pregnancy 1 tenant by the curtesy 1*38, 1840 using income of wife, not Uable to account longer than one year before suit by, or death of wife..: , 1^'' wife's estate, administers on, when 1479 right, how lost 1480-1482,1845 witnesses, wife and, are, exceptions: do not disclose confidential communications. 588, 1353 Hyde County, sherifE, &c., can serve process on shipboard between Ocracoke and Portsmouth 2078 Idiots, certificate ot superintendent of insane asy- lum evidence of idiocy to enable guardian to be appointed 1'^'^^ defend by guardian ad litem ISl guardian for, appointed by clerk 1070 order for sale or rent of land of, how ob- tained ...1074,1675 netition to have persons declared; inquisi- ^ ,. 1670 tion proceedings to condemn land of, for raU- roads, guardian to be served with pro- 1941 cess ■■■■ sue by guardian or next friend i"" See Guaidiati and Ward. Illegitimate child, legitimated by father ^ inheritance ot (9), (10) 1281 8'?3 INDEX TO VOLUME I. nie^timate child— Continued. Sectio next of kin to cacli other 148T next of kin lo mother, when 148G Improvements^ claim for, by defendant 473-487 See Executions. Incest, what and how punished lOCO, 1061 Indenture, apprentices boimd by 9 remedy on jO of apprentices , revoked by clerk, when 16 Index, alphabetical, of judgments kept by clerk. . .83, 433 of records 113 Indian, cannot marry white person 1810 contracts with, to be in writing 1553 See Vol. n, Cherokee Lands. Indictment, deatlt in another county by assault, found where 1196, 1197 defects of, what kind do not vitiate 1189 finding and sentence of justice of peace pleaded in bar of 903 forgery, statement and proof 1191 formal objections, &c., not to quash 1:83 fraud, statement and proof 1191 larceny of money, what sufficient to state. . . 1190 larceny and receiving goods, charged in same 1191 libel, defendant may give truth of, in evidence 1 195 magistrate not liable on, for improperly in- dorsing warrant 1137 misdemeanors, commenced in two years, ex- ceptions 1177 no person arrested on presentment or tried except on : II75 ownership of property held in common, how Btatedin 1188 perjury and subornation of, what to set forth 1185, 1186 second offence, how first conviction stated.. 1187 substance only of proceedings set forth in.. 1184 Indorsers, of negotiable paper, liable as sureties BO Inebriates, who deemed 1671 defend by guardian ad litem 181 guardian of , appointed by clerk 1670 order for sale or rent of lands of, how ob- tained 1674, 1676 petition to have persons declared; inquisition 1670 property restored upon reformation 1673 sue by guardian or next friend 180 See Ouardia^i and Ward. Infants, apprenticed H costs against, how paid 685 defend by guardian ad litem 181 judgment against, validated 387 petitioning, judgment to be approved by judge 286 Infants- Cuntinucd. Sbctiok privileges of, in corporations relating to swamplands 1320 sue by guardian or next friend 180 trustees, how to convey as 1265 unborn, may take by deed or other writing. . 1328 may inherit, when (H) 1281 Inferior Court, adjournment of, by sheriff, when 806 appeals to superior court for errors of law, how conducted 809 attorney of, how elected, duties 814 bond of clerk of, taken by county commis- sioners 812 business of, not finished in one day, ad- joujmed from day to day. 805 cases pending in, untried, where transferred. 1212 clerk of, to give bond 812 duties of 818 to issue all process for, sheriff to serve 813 justices of the peace elect, failure; who to a«t 812 cruninals, speedy trial of 1341 discontinued, records, appeal from clerk, decided by, when 255 duty of , on appeal from 41* exchange of courts ^1" facts, not to express an opinion upon ^ 413 fiUs vacancy in office of clerk 76, 77 instructions to be put in writing 414 judgments, &c., signed by what 432 law, to be explained by 413 oath of, where returned ^^ reference, when compulsorily ordered by.... 421 reviews order relating to infant petitioners. . 288 ridings, notification of ^^ rotations of ^ signature to judgment, &c., when required.. 288 special terms of superior com-ts, how ap- pointed for ^13 Judgment, against executors, &c., when to be docket- 1503 1907 ed. 1466 431 J action for recovery of pei-scnal property penal, how discharged 931 864 INDEX TO VOLUME I. Judg:meiit — Continued. Section annual damages for erection of mills binding for five years 1860 appealed from, how secured 4iJ5 appellate court may render, against sureties on appeal bond 563 in attachment, how satisfied S70 confession of, without action 570, 571, 572 confession of, for debt due, or to become due on contingent liability 570 verified statement of debt signed and filed. 571 execution thereon, how enforced 673 confession of, for fine and costs, not to dis- charge original judgment 7-19 in controversy without action, how enforced find appealed from 568, 569 conveyance of title, when. 426 copy of, evidence when 428 costs, how inserted in 532 when plaintiff bound for 543 when and how sm*eties of prosecution bound for 543 damages, rate of 430 by default final 385 by default and inquiry 386 inquiry when and how executed 386 on demurrer, answer or reply when frivo- lous 388 deposit in heu of bail applied to payment of. 312 destroyed, how perpetuated 60, 67, 71 docketed, when, where, how, lien of 435 to beardateof first day of term 43^5 dormant, leave to issue execution on 440 draws interest, interest how computed and en- tered 529-531 enforced and appealed from, how 569 for erection of mills, when against plaintiff, when not 1862 for excess over defendant's counterclaim.. (2; 385 execution to enforce 441 executors, summons served on one, judg- ment may be against all 1508 for failure to make due returns, how given. . 440 in favor of administrator in case of fraudu- lent conveyances of land, &c 1447 of forfeiture against corporation GI7 form of, in action for purchase- money of land 236 against garnishee 864 good until reversed 936 of justice of the peace, limitation seven year* 153 all others, ten years 152 how and when docketed 380, 8:19 how removed to another county 846 on what a lien and when 839 kinds of 384 final ZSi interlocutory 884 manner of entry 424 of j)!eading 262 agaitiKt married women, how collected 424 In matters of accomit against executors and administrators, when docketed 146G J udgmeut— continued. Sectigii for money rendered by clerk of superior court, lien of 85 motion for, on answer 249 new action commenced within one year after reversal , &c 166 nim, against clerk when 445 against sheriff or other officer when 44*J non-residents, time for enforcing, against. . . . 162 paid by party before execution, clerk to do what 433 parties not served with summons, bound hou bound by, may answer or defend 224 in partition, when and how impeached, 1890, 1918. 1919 against personal representative, what to de- clare 1469 fixes with assets when 1470 lien when and on what 1471 proceedings on, when issue of law deter- mined 419 to condemn land for railroad companies.. 1946 for year's support 2131, 2134 real property, in action for, defendant fail- ing to give bond 890 regarded as a deed when, and registered. .427, 429 relief to be granted in 425 roll, in action against corporation filed where 620 roll, how made up 434 signed by what judge 432 in special proceedings, when judge to sign.. 288 for sum admitted due 382 in supreme court, how a lien 436 transcript of 436 final, how certified 967 rendered on review of record 957 trial by court, how given 417 for usm-pation of office 610, 611.615 in waste 624, 629 Jurisdiction, clerks of superior court 103, 251 concurrent, of inferior and superior courts. . 1241 inferior court 808 justices of the peace in bastardy 898 in civil actions on contracts 884 in civil actions on torts 887 in criminal actions 892, 896, 897 in peace warrants 89S superior courts, original 922 appellate 928 at special terms 916 concurrent with justices of the peace 887 supreme court 945, 947, 948 Jurors, accomodation of, provided by order of court 1786 challenges, peremptory 405, 406, 1199, 1200 for disqualification 1722, 1?28, l'/83 competency of, decided by court 405, 1199 coroner's, allowed compensation 659, 600 of court, inferior, how provided 81 1 /u INDEX TO VOLUME I. 865 Jurors— Continued. Section of court of justice of the peace, list provided by county commissioners 854 names deposited in box 856 challenge to 861 names returned to box 863 serving, names put where 868 defaulting, fined 405 drawn by county commissioners 1727 drawing to continue until scrolls are ex- hausted 1730 for special term of superior court 1731 failure of commissioners, whose duty 1733 dying or removing from county, scrolls de- stroyed 1729 exceptions to, when taken 1741 exempt from arrest under civil process 1735 exemptions from service as. . 1723, 2269, 2580, 3S8I fined for non-attendance 1734, 1740 g:uilty of improper conduct, punished for con- tempt 654 having suits pending and at issue, not se- lected 1728 list of, examined by commissioners 1725 names, called before impaneling 406 put in locked boxes 1726 penalty on sheriff for failing to execute writ of venire 1740 selected, how and when 1722, 1723, 1724 special venire issued by judge in capital cases , 1738 special venire, how drawn and summoned . . . 1739 summoned how; to attend until discharged. 1733 sworn in civil cases 405 tales, pay of, in capital cases - 1737 .quahfications of 1733 summoned how 1733 tax fees for payment of 732 Jury, attorney addresses, how long 30 challenges to 405 drawn how, sworn in civil cases 405 damages assessed by 411 drawn by county commissioners 172^1731 commissioners paid, how drawn 1732 facts material, in divorce determined by 1288 grand jury, how drawn and who compose it. 404 grand, not drawn for special term 921 in inferior court, how waived 810 how provided 811 issues of fact, tried by, unless waived 398 or referred 403 of justices of the peace, box of, kept by 855 trial by, how demanded or waived 857 drawn, trial postponed 858 summoned 859 forthe trial 860 sworn and impaneled, verdict 864 less than six, when 866 fees of, deposited 869 in criminal actions 898 what submitted to 899 officer attending sworn 827 37 Jury— Continued. SECTION special finding, when 409 to control general verdict 410 for special terms, how drawn 915 certificate of attendance 918 trial by, when in actions between landlord and tenant 1770 verdict of, general or special 409 waived how 416 Justices of the peace, additional justices elected 820 adjournment after return of jury on what terms 870 annual meeting of board of, clerk, &c 717 answer before, when title to real property in controversy 836 appeal to superior court, eflTect, 565, 865, 875, 876 when written notice not given 877 return of. to be made by 878 return defective, amended 879 docketed by clerk 880 heard on original papers 881 execution stayed on 882 undertaking on 883, 884 in criminal actions, accused may appeal. . . 900 papei*s of, transmitted 901 copy of complaint, &c., to be given on pay- ment of fees, on 902 or recordari, from, superior court may com- pel plaintiff to secure costs 564 when plaintiff liable to costs of 566 apointed by clerk, certificate sent to secre- tary of state 89 appointed by governor for new townships, when • 819 arrest, affidavit to obtain order of 852 order, by whom made 851 in what cases 850 attachment, affidavit for, to be filed with 356 code of civil procedure applicable to 853 garnishee in, how summoned 364 garnishee judgment against 364 property replevied before sale 361 property, perishable, when sold under 360 person replevying to give undertaking 361 publication of warrant and summons 352 undertaking not affected by irregularities . . 368 vessel, when sold under 360 warrant in, dii'ected to whom, contents — 357 warrant in, executed how 3M warrant in, levied on land, what to do 364 warrant in, to be published 350 how ^^ warrant in undertaking, how conditioned . . 368 attorney of inferior court, elected by 814 book of fines, &c., to be kept by 725 causes, when tried by 824 civil actions before, begun by summons 830 in claim and delivery, to try title to property.. 3-31 affidavit 890 sufficiency of sureties, excepted to 891 costs in criminal actions, how paid 896 866 INDEX TO VOLUME I. Justices of fie peace - Continued. Section in crimina 1 actions, party when imprisoned for 904, 905 to be itemized by T34 when plaintiff liable, though recovering in superior court 56G county commissioners biennially elected by. TlC criminal actions disposed of, returned to clerk 90ti damages to real or personal property, prose- cuted before 888 depositions, how taken before 1339 dockets, how disposed of 827, 8^8 disposal enforced 839 provided by county commissioners 831 elected by general assembly, number of.. 819, 8:^0 execution on what and from what time a lien 841 stayed by whom and how long 842 secmity on stay of 843 stayed on appeal 882,883,884, 885 finding and sentence, effect of 903 former judgment, evidence of 844 forms in court of 909 infamous crime, convicted of. penalty 826 inferior court clerk, elected by 812 established by 802, 603 judgments, how and when docketed 839 how removed to another county 84G by what chapter governed 389 jurisdiction in bastardy 31 in civil actions on contract 834 of torts in criminal actions not final, how to proceed final, what done peace warrants 893 jurors, challenges to 861 list of, furnished by county commission- ers 854 names deposited in box 856 names returned to box 862 names of serving jurors, where put 868 not to serve out of township 867 jury box to be kept by 855 jury trial, how demanded or waived 857 jury drawn how, tri.il postponed 858 how summoned 859 for the trial 860 in criminal actions 898 what submitted to 899 sworn and impaneled, verdict 864 less than six when 866 fees, deposit of 869 lien of docketed judgment 839 limitation of judgment 153 new trial not allowed 865 officer under United States, eligible as 825 peace warrant, proceedings on 8!»4 penalty for marrying white and negro 1085 process of, not quashed for want of form . . . 908 when issued 824 not Issued out of county 871 Justice^ uf the peace -Continued. Section issued out ot county how indorsed, &c.. 872, 873. 874 qualification of, in what time 821 rehearing, application for 845 removal of actions from one to another 907 of domicil, forfeiture of office 823 resif^nation of, sent to clerk 823 restitution on appeal, when ordered 886 return made by, of all criminal actions dis- posed of 906 rules of proceedings in court of 840 pleadings, complaint and answer (1) 840 written or oral (2) 840 complaint to contain what (3) 840 answer what (4) 840 no particular form (5) 8*0 defendant not appearing, plaintiff must prove his case (6) 840 account or written instiniment delivered. complaint (7) 840 variance immaterial, disregard^ (8) 840 amendments made how (9) 840 account or demand excluded when — (10) 840 demurrer HI) 840 sustained, what done 02) 840 docket, proceedings entered on (13) 840 execution when to issue 04.) 840 code of civil procedure applicable to.. (15) 840 offer of judgment by defendant 06) 840 action may be continued 0") 840 successor to determine unfinished business.. 828 sum demanded exceeding $200, proceedings. 835 summons, by whom issued, and contents..,. 832 service and return of 883 swearing profanely before a justice. &c., penalty 848 title to real estate in controversy, proceedings 837 another action may be instituted in supe- rior court 888 treasurer, county, power to abolish 768 vacancies in inferior court filled by 816 witnesses, summoned how, penalties 847 Laborer, indebtedness to, by railroad companies, bow collected, action brought in what time.. 1942 share of crop, not liable to executions against employer 1796 See Liens, Landlord, attornment not necessary upon conveyance of reversion, saving 1764 controversy between tenant and landlord, how determined 1756-1758 determination of tenancy, length of notice... 1760 joined, inaction to recover real property, aa defendant ' 184 possession of crops deemed vested in 1754 preference of lien 1754 rents, how apportioned when estate of les- sor terminates by death, I'k.c 1747 limited in succession, on death of perBon entitled, to whom payment mode 1748 / INDEX TO VOLUME I. Landlord— Contiuued. Section rent, demand of, not ne.-essary, when 1745 right to recover for use and occupation, when no express agreement 1746 seizure of crops by, misdemeanor 1759 tenants holding over, how dispossessed by 1766- 177G forms sufficient in such cases 1779 See i/case, LessoVj Tenant. Land, aliens hold and convey 7 allotted to af tex'-bom child 1536 corporations, how to convey 685 quantity held by 6G6 devised to l>e sold, who may sell 1493 going on, after being forbidden 1120 guardian liable for lands of ward forfeited for taxes 1595 may lease lands of ward, how long 1591 marks, penalty for alteringor removing 1063 private acts authorizing sale of, repealed 458 public, trespassing upon, penalty 1121 sold under execution, how 454-457 Larceny, cases of, penalty 1064-1075 distinction between grand and petit, abol- ished 1 075 Kiair, issue of 391, 392 Judge to explain, to jury 413 of other states and territories, evidence 1338 Lease, agreement in, to repair, how construed 1752 contracts of, when shall be in writing 1743 of farming lands determining during current year, tenant to hold to end of year 1749 Leave, to bring action to annul corporation, how obtained 606 to issue execution upon dormant judgment. . 440 Legacies, of absentees may be paid into court 1526 judge to order payment of 1519 recovered by special proceeding 1510 by action before court at term 151 1 Legitimation, effect of 40 petition for, filed in superior court 39 Lessee, in case of accidental damage, may surrender his estate 1753 removal of crops by, without notice, misde- meanor 1759 rights of, to crops 1755 surrendering possession to other than lessor. 1760 injuring house, fniit trees, &c., misdemeanor 1761 See TeJiant. Lessor, for raining and getting timber, entitled to remedies of landlord 1763 not partner with lessee except by contract. 1744 remedy of, when tenant deserts premises. . . 1777 See Landlord. Letters of Administration, Section cum tetftamcnto aniicxo^ when and to whom granted 2166, 21G7 administrator with will annexed to observe testator's will 2168 revoked, when and by whom 2170 See Executors and A dminiatrators. Libel, limitations to action for 156 how stated in complaint 265 answer, what to contain 266 on trial for. defendant may give truth of, in evidence 1195 License, of attorney, tax 20, 21 marriage, when and how issued, pen- alty 1814-1819 Liens, actions on, where brought 1785 for advancements 1799 amount due sub-contractors, &c., not to exceed amount due contractor, &c 1S08 on assets not created by bringing action. . . 1432 on buildings, crops, farms, &c I78l-178;5 chapter on, not to affectprior rights 1786 of claim for iu^provement 479 against real and personal property, how and where filed 1784 on colts, by owners of stud horses or jacks. . 1797 discharged how 1793 of docketed judgment 435 of docketed judgments of justice of the peace 839 employer attempting illegally to remove ■property subject to, laborer may have remedy by attachment 1795 execution against personal property 448 on judgments under 1791 of judgment, of justice of the peace 841 rendered by clerk for money 85 supreme court 436 for labor done, on real estate, how enforced, 1781, 1801, 1803 for railroad companies how collected, ac- tion brought in what time 1942 of lessor on crops 1754 for material furnished, how enforced, 1801, 1803 notice of, where and how filed 1789 given by sub-contractor, take acknowledgment, &c., of deeds. (1) (2) (3) 1346 Notice, in cases of contempt ''■^ constables execute, by leaving copy 044 to defendant with summons when no per- sonal claim is made, form of destruction or defacing of legal length of. reqiured to terminate a tenancy . . of lien when and where filed by sub-contractor, laborer, material man. . of lis pendcThs of motion, and time of service to produce claim against estate of decedent, 1481, 1422, 1423 served personally '■'** Notice — Continued. return on, evidence of service "W service of ^ how proved ^"^ Nuisance, injury remediable by action 630 judgment in action of '^^ mill-ponds when abated as, damages 1859 stagnant water not allowed when draining lowlands Nuncupative well Oath, administrator public attorney clerk of superior court of supreme court — collector commissioner of affidavits • • '»"' commissioners to appraise lands for rail- roads constable coroner executor finance committee '"" judge of superior court, where returned 9-i justices of the peace ^'^ of the supreme court ^^ officer attending jm-y to take, before acting, penalty police of railroads public guardian See index of Vol. U. Obstruction, of water courses of roads, &c., misdemeanor Offenders, absconding from work-houses. . speedy trial of Office, action to try title to triable at return term buying and selling, penalty clerk going out of, delivers records, &c., to successor contracts for purchase or sale of, void forfeiture of, by clerk faiUng to keep office ^^^ hours j ■ "tV c' justice of the peace may hold, under U. b. ^ government •••■ officer to take oath before acting in. penalty. 18. J person not to hold, contrary to constitution. . IS'U hold until qualification of suc- 1299 I 2148 1387 1393 1387 1946 1387 1873 1090 1660 2065 1241, 1658 1871 of protest. persons to noiu imui ^luc...^. -- - cesser ' usurpation of, action for complaint and arrest of defendant 609 usurping, penalty 612,015,18,0 when several claim, one action to try title „ „ 614 of all OfiBcers, ^^ assuming to be. punished , ./ ' ' t« county commissioners, when to qualify ^^ county, when and how qualified '"' 872 INDEX TO VOLUME I. Officers— Continued. Section books and papers to turn over to successor, penalty 612 inferior, punished as for contempt (6) 654 penalty on, forfailingto execute process,&o. 1112 required to take oatli before acting, failure, penalty 18T3 Official Bonds, action on. where brought 193 limitation of action on 154 appointees to vacant ofBces, to give 1866 approval , execution and custody of 1877 clerk of superior court 72 failure, vacancy 76 of inferior court 812 of supreme court 958 constable 647 coroner 661 county treasurer 766 of defaulting clerk, how put in suit 87 destroyed, action on 62 filed where (38) 707 insufficient, judge to require better, failure to give 1885 irregularities in taking, or in form of, not to invalidate 1891 mortgage in lieu of ; foreclosure 118 penalty on officer for acting without giving . . 1882 public guardian ._ 1559 public administrator 1390 renewed annually, failure, vacancy 1874, 1875 sheriff 2073 suits on, what complaint to state 1883, 1884 summary remedy on certain, in superior court 1889 Burety on, to justify 1876 Official Reports, book of, provided 91 of county officers 728, 729, 730, 731 filed where 729 Opinions, judge does not express, on matters of fact. . 413 of justices of supreme court, delivered in writing 964 how certified 968 Orders, definition of 694 before issuing Injunction, restraining party. 342 made out of court, how vacated or modified. 546 record of, to be kept by clerk of superior court (8) 113 re-straining, against corporation 019 may be issued after answer 310 not to issue for more than twenty days ; continues until vacated 346 Orphan, apprenticed 11 estate of, without guardian, how secured 1610 Overseer of roads, penalty for neglect of duty 1054 penalties, powers and duties, 2019-2023, 3026, 2027, 2029, 2030, 2032, 2033, 2043, 2044 See Roada, Parents, Sbictior divorced, custody of children settled by court 1570 father may appoint guardian by deed or will 1502 inherit from child, when (6) (10) 1281 mother may appoint guardian if father dead 1552 effect of such appointment 1563 powers and liabiUtiesoftbe guardian 1S64 mother to be natural guardian, if father dead 1665 party to proceeding for adoption ( relation of child and parent, established when child adopted 3 Particulars, bill of, when required in pleading 259 Parties, appearance of 109 bookacoimts, how proved by 691 death of, between verdict and judgment, not to be alleged tis error 933 designation of 134 evidence of 1351 examined, when and when not 590 at or before trial 680, 581 in proceedings for dower 2112, 2114 real, to bring action 177 refusal of, to testify, effect 584 severally Uable may be jointly or severally sued 186, 187 testimony of, rebutted 683 in new matter may be rebutted 686 united in interest must be joined in suit; when one may sue for all 185 who may be plaintiffs 183, 184 who may be defendants ]84 Partition, allowancas to parties in, how paid 1902 compensation of commissionersselling land in 1910 court may grant an order of possession on judgment in 1904 'may compel parties in, to execute and de- liver deeds in 1913 decree for, in another state, how enforced... 1914 judge to decide in reference to the law of the other state ] 915 decree of confirmation of report in, effect. . . 1897 decreed by the court, when 1912 dividends in, bear interest until paid; charged on minor, when payable ,1899, 1900 dower, how apportioned in 1909 effect of deed of officer making sale 1921 final decree in, when declared conclusive.'. . . 1913 oath, duties and compensation of commis- sioners for 1893-1896, 1902, 1913, 1910, 1922 of personal property, how made; commis- sioners, sale advertisement, report.. 1917, 19^1 petition for 1892, 1911 , 1914 when land is situated in several counties, where filed 1898 proceeds of sale for, how seciu'ed for in- fants. &c 1908 proceedings for 1892,1903,19-^ INDEX TO VOLUME I. 873 Partition — continued. where lands lie partly in this and another 1911 and decrees in, after confirmation, how im- peached 1896,1906,1918 for impeachment do not affect purchaser for value without notice 1896, 1906, 1919 who authorized to sell in decrees for 1906 Partners, acknowledgment, &o., of one, after dissolu- tion does not bind others 1"1 lessore not partners with leases unless by con- tract ^''^ See Mines, Vol. 11. Paternity, issue of 82^ Pauper, appeal ^^ counsel assigned ^^^ costs not recoverable against 218 suit how brought 210, 313 Payment, effect of, to bar statute of limitations 173 how pleaded in suits on bonds 933 of money ordered, when 382 Peace, what officers to keep the 1126 Peace warrant, proceedings on before justice of the peace . . 894 when issued, to whom directed, duty of magistrate on return of 1219-1321 Peddling, without license, penalty 1091 Penal suit, effect of plea of former judgment in 933 limitations of action (3) 156 penalty, how discharged 934, 935 Penalties. against directors, &c., recovered In three" years, after discovery of facts 175 suit for, brought how and by whom. . . . 1312, 1313 Perlsliable property, may be sold when 360, 554 Perjury, indictment for, to contain what 1185 how punished l^S^ subornation of , penalty 1093 Person, execution against the *•" party may appear in • • 109 living, limitation to heirs of, to be to his children 1^20 Petition, forgery of names to, penalty 1031 judge to approve, infants joining in 286 parties asking same relief by ■ 284 for rehearing in supreme court, when and howflled ^^ summary hearing of. by clork 285 Plaintiff, costs when allowed to 525 failing to file complaint, non-suited 338, 283 money coUected for, paid by sheriff 2080 Section | PlalntilT— Continued. SEcmoif to give security for delivery of property 834 who joined as l^i 1^5 Plank roads, injuring maUciously 1098 land condenmed for 1708 Plea, " not guilty " entered for accused standing mute 1198 Pleadings, amendment of 261, 272, 273, 274 bill of particulars required in 259 conditions precedent, how stated 263 couatrued Uberally 260 defendant unknown, sued by any name 275 failure of proof in 271 forms of 231 immaterial errors, &c., in, not regarded 276 in inferior as in superior court 809 instrument for payment of money only, how set forth 263 irrelevant or redimdant, indefinite or uncer- tain 261 items of account not stated in 259 copy of account furnished adverse party on demand 259 verified, when 259 in courts of justices of the peace 840 private statutes, how pleaded 264 relating to judgment 262 subscribed and verified 257 supplemental 277 time for filing enlarged ■_■ 283 variance in 269, 370, 271 verified, how 226, 258 Pluries summons, when issued 205 Pooling freigiitS' ^"t forbidden l^^S Poison, unlawful to put in streams 1094 See Vol. n, Driwjs, Poisons. Political speaking, sale of liquors in two miles of, prohibited .... 1079 Poor, maintenance of — (21) 70i See Vol. n. Posse comitatus, sheriff or other officer may call, to his aid, in certain cases 829,1121,1643 Possession, • court may grant writ of, in partition 1904 seven years adverse, under color, bars whom. 141 twenty years adverse, imder metes and bounds, gives title 1** thirty years bars state, or twenty-one years under color 1^' and claimant under it I'lO railroads, &c., not barred by IM of tenant, deemed that of landlord 147 when presumed Power, of attorney, when filed tor appearance » 874 INDEX TO VOLUME I. Power— Continued. Section how proved in and out ot state 1249 conveyance under, duly executed by /«»« coiiei-;, valid 12S7 ot married woman to malfe a will 1839. 213S o£ sale under wiU not affected by clerk— on executors and administrators 1415 Pregnancy, husband or wife may testify as to, in case ot divorce 1288 of wife, before marriage ground of divorce, (4) 1285 Preliminary trial, prisoner to have, in capital cases 1142 Presentment, no person arrested on 1175 witiiesses and grand lurors. indorsed on 1176 Pretended riglits or titles, buying and selling, prohibited 1333 Principal 2093-2101 See Sureti/. Prisoner, answers ot, on preliminary examimition re- duced to writing II47 bound over, when 1163 committed to what jail II64 counsel assigned 114« discharged, when 1151 to examine witnesses 1148 examination of, in misdemeanors need not be reduced to writing, nor be in the pres- ence of witnesses 1149, 1153 informed that he can refuse to answer 1146 officer having charge of, may talie bail 1S32 Privy examination, by whom taken and hovr certiQed (5) 1346 clerk not to order registration of deed with- out (6) 1246 form of certificate (7) 1 a46 Probate, office of judge ot, abolished, clerk performs duties 102 office hours for, business 114, 115 Proceedings, rules of, in court of justice ot the peace 840 supplementary to execution 488-600 See Special Proceedinrja. Execution. I'rocess, criminal, issued by whom 1132 directed to sheriff of adjoining county, when 929, 030 not executed on Sunday 928 in inferior court not discontinued, when 807 of justice of the peace, not quashed for want ot form 908 when issued 824 how issued out of county 871-87'l penalty on sherilt and other officers for fail- ing to execute 1112,2079,2088 return made by sheriff 598 by coroner 598 not returnable to special terms 919, 920 how served 217,598 Proce -Continued. Section served by publication, inwhat cases. .218, 850. 1523 sheriff and other officer to receipt for, evi- dence 2081 See Summons. Processioners, appointed by county commissioners; county surveyor deemed; oath and term of office 1934, 1931 I how to proceed in cases ot disputed lines 1928 to make report of land processioned; report returned to clerk and recorded 1927 Processioning, owners of land to file petition for 1926 who not bound by; successful party deemed owner 1929 appeal allowed 1930 procceedings in 1924-1931 Prohibition, statutory, time of not counted to bar action. 167 See Local Option. Promise, to charge executor personally must be in writing 1506 to pay in writing, repels limitation 172 to pay debt of another, in writing I6OS Property, REAL, action by the state, when barred 1.39 may be brought twelve months after non- suit, 32 not to be recorded until stock subscribed and tax paid '^^^ copy of, presumptive evidence of inooi-por- ation 1931 director., to open books of subscription under 1^35 president and directors, how chosen, terms of office, voted for by shares, qualifica- tions and vacancies I'j36 purchaser of property under mortgage, ex- ecution, &c., may file articles and shall be a new corporation 1936 officers under, appointed by president 1937 stock to be paid by instahnents, not paid, forfeited 1938 stock insufficient, amount increased 1939 liability of stockholders for debt 1940 executors, guardians, &c., of stockholders not Uable personally, but estate of testa- tor, ward, &c., liable 1941 baggage, check and duplicate for, liability for loss 19^0 bridges across streams, draws in, kept by . . . . 2051 over county roads to be kept up by 2054 can enter the lands of another to build works, &c 1698 disagreement, proceedings to assess dam- ages 1699, 1700,1716 capital stock, how transferred to lessee 1994 cattle guards to be maintained, failure, mis- demeanor 1975 killed by, evidence of negligence 2326 chapter on corporations apphcableto; how repealed ''^1 companies to keep an account of produce carried, report, &c I'l^ conditional sales of property void unless in writing ; -'^ conductor intoxicated, misdemeanor 1972 corporate existence ceases, if road not com- pleted in time as specified 1980 corporate powers . 1957 county subscriptions, made by whom 1996 manner of making 1997 election for, how held 1998 interest on bonds, how paid 1999 taxes, how collected and paid 2000 crossing other road, not to obstruct it 1710 dissolution, company dissolved, &c., owner or purchaser new corporation, and taxed, 2005 dwelling-houses not condemned by 1701 engineer intoxicated, misdemeanor 1972 entering cars of, after being forbidden, mis- demejinor 1979 fare and freight, general assembly may re- duce .••1°«1 failure to keep bridges over highways, mis- demeanor 2051 876 INDEX TO VOLUME I. B&Uroad companies— Continued. Section freight received and f onvarded, penalty, 1964 list o£ charges for, to keep posted, not in- creased without notice, penalty 1905 discrimination in, unlawf ul,penalty, special contracts may be made 190C unshipped tor five days, penalty 1907 pooling and rebates forbidden, penalty 1908 attorney-general to institute action in cer- tain cases 1969 unclaimed ; publication thereof 1985 unclaimed, perishable, sold 1986 proceeds go to University 1987 directors authorized to give through freight and travel 1995 general assembly, may annul any corpora- tion, effect of dissolution 1981 no bill introduced in, unless accompanied with receipt of treasurer for tax 2004 injuries to, with and without mahce, 1098, 1099, 1974 interest of state in, how controlled 1691 laborers, indebtedness to, how collected, time specified for action 1942 lands, right to acquire 1943 petition, contents, parties and manner ot service I944 commissioners appointed ; duties 1945, 1946 mode of proceeding, judgment, effect of, appeal and subsequent proceedings 1946 court may adjudge rights of conflicting claimants 1947 court may appoint attorney to protect rights of parties, and make allowance for his service 1948 court must take cognizance of all proceed- ings and make all necessary orders 1949 change of ownership not to affect ap- praisal 1950 defective title to, how remedied 1951 secretary of state in certain cases to grant land 1955 town authorities in certain cases to make grant 195,5 superior court empowered to authorize guardians to sell, for raih-oad purposes.. 1956 location of same line embraced by two or more companies, how constructed 1983 In adjoining state how considered 1984 maps to be furnished by, to board of internal improvements 1714 material for, can be taken from adjacent ground 1702 damages, how assessed; proceedings; ap- peal, &a 1703, 1704, 1706 must be established by law, penalty 1717 obstructions to; highways, turnpikes, rail- roads, &c., may be crossed... 1954, (5) (6) 1957 oificers to account to their successors, fail- ure, misdemeanor 2001 persons conspiring with, misdemeanor 2001 governor to make requisition upon other states for 200-J Bailroad companies— Continued. SscnoN passengers violating rules ejected 190» injured when not compljong with rules, no redress, proviso 1978 penalties against; actions, how brought 1976 police may be established 1988 governor to appoint 1989 oath; badge; compensation; dismissal 1990-1993 president of, to report to board of internal improvements 1693 reports annually to be made, verified, filed with secretary of state, statements to be made 1959 failure to make, penalty i960 rights and privileges conferred by chapter f orty-nine possessed by all companies 1982 road of , can be turned 1711 damages allowed owner of land 1712 route of, profile maps of, made and filed ; no- tice ot given to occupants ot land ; pro- ceedings if route objected to; not altered imless, &c. ; certificate of commissioners filed in clerk's ofiice, compensation of commissioners 1952 directors may change ; certificate ot altera- tion filed in clerk's office; effect of alter- ation; not made in cities unless by vote of corporate authorities; compensation for injury to whom made 1963 chart of, to be made and tiled 1977 servants ot, to wear badges 1958 shooting at or throwing into cars, &c., pen- alty 1100 Sunday, passenger or mail trains only run on 1978 unloading or loading freight cars, misde- meanor 1978 taxes on bill to create, alter or amend charter 2004 trains arranged how, failure, penalty 1971 transportation, rules of , fixed by public notice; furnish accommodation for passengers or property from usual stopping places upon payment of charges 1963 width of land condemned for 1707 quantity condemned tor station, &c 1709 Rape, assault with intent to commit 1102 carnal knowledge ot married woman by fraud 1103, 1104 definition and proof ot 1101, 1105 Real Party, in interest to bring action 177 Kebellion, against state 1106 conspiracy to destroy state 1107 Receivers, appointed to settle affairs ot corporations, powers 379, 668 by whom and when 879 fees of (4) 879 pay debts and distribute surplus 670 in action on bond of guardian by solicitor. . 1585 INDEX TO VOLUME I. 877 Receivers — Continued. jurisdiction over 6Ba removal by judge 3^ in supplementary proceedings, how and when appointed ^^'^ vested with property, when 495 orderflled, where *^^ when to bring action 497 of stolen goods, how punished IW* trustees to deposit or deliver property 380 how punished *^ undertaking of ^°^ Recognizances, clerk to refund remitted 1206 county treasurer to refund also 1207 broken, when 1227 breach of, prosecuted 1228 forfeited, execution when to issue 1908 proceedings on 12-^ joint notice, when issued 1209 judges may lessen or remit 1205 notices on, how executed 1210 required by magistrate; effect 1220, 1221, 1222 returned to next term of court 1223 Recordari, writ of ; bond for costs 545 from judgment of justice of peace, court may compel plaintiff to secure costs 564 Records, authentication of See Appendix, Vol. IL book of furnished by county commissioners, 113, 113 kept by clerk of superior court 112 obliteration of, how punished 1071 Referee, appointed to take affld avit, when (5) 594 fees of 533 powers of 599 how chosen, who, report 423 find law and facts separately 422 report, exceptions to ; reviewed how 422 when a special verdict 422 in supplementary proceedings, witness com- pelled to answer 492 Reference, of aU issues, when S98, 399, 420, 498 compulsory, or by consent, when 420, 421 Register of deeds, flies bonds of coroner 663 of constable W keeps book of marriages 1818 mortgage by clerk in lieu of surety filed with. Section I Beglstration— Continued. Sectiok 669 1 of lost deeds, &c., authorized 6* force of •* new, of burnt and lost deeds, &c 56 time for, of deeds, &c., extended 1279 See Deeds and Conveyances, Mortgage, Sale. Kebearing, application for in justice's court 845 petition for, in supreme court, when and how filed 566 Relator, private, leave, when granted to, by attorney- general, to bring action 608 when judgment in favor of, agamst person usurping office 611 Relief, in case of mistake, surprise, &o 274 what, granted plaintiff, when no answer med ^ Remedies, actions, special proceedings 185-127 not merged 131 Removal, of causes to federal courts. See Appendix, Vol. n. from one coimty to another.195, 196, 197, 198,1371 from one justice of the peace to another. . . 907 of judgment of justice of the peace to another county 846 of justice to another township; forfeiture of 1747 &c. ex opdo clerk of county commissioners 716 of board of justices '''1'' penalty for issuing marriage license unlaw- fully 1085,1816 for railing to record licenses 1819 to justify sureties of clerk See Index, Vol. II. Registration, books, fraudulentobliteration,&c.,of,penalty 1071 of proceedings, when clerk disqualified to act. - Rent, how apportioned, when estate of lessor ter- minates death of person entitled to, to whom pay- ment made 1''48 formal demand for, not necessary when there is a proviso for re-entry 1745 Renunciation, of right to administration, must be in writ- ing, &e 1378,1380 Reply, to answer 208,225, 318 demurrer to 250 frivolous, judgment on 388 Reports, book of official, provided by county com- missioners "1 of commissioners, how set aside 389 defects in, how cured 289 official, of county officers 728,729,730, 731 of railroad companies, when and how made, &c., what to contain 1959,1960 Restitution, appellate court may order 563 on appeal from justice of the peace, when ordered 886 to defendant in certain cases 230 judgment of, in ejectment cases 1774 owner of property entitled to, on conviction of felon 1301 878 INDEX TO VOLUME I. Restraining order, Section against corporations (iHI before issuing in junetion 342 granted after answer 340 made out of court, how vacated or modi- fied 546 what judge to grant 335 before whom, returnable 336 Returns, of criminal actions made to clerk by justice of the peace 906 of fines, iSc, paid county treasurer.. 96,724, 726 See vol. 11, Elections. Reversions, grantees of, to have such rights against tenant for life or years, as grantors had, 1331, 1T65 rights of holders of particular estates, against grantees of 13.32, 1765 Revocation, of indenture of apprentice 16 of letters of adoption 5 of letters of guardianship (S) 1561, 1583 of letters testamentary or of administration by clerk 1520, 2170, 2171 Ridings, notification of, to judges 913 Right of way, how obtained by railroad companies. 150, 1945-1951 by telegraph companies 2008-2012 Roads, hindering the making of, misdemeanor 2065 obstruction of, misdemeanor 2065 CAKTWAYS, how obtained 2056 how altered or discontinued 2057 gates or bars erected across 2057, 2058 penalty for injuiing 2057 CHUKCH ROADS, how established, altered or discontinued, 20G2-2064 FOOTWAYS, hollow bridges and footways made over swamps and streams by township super- visors 2029 HIGHWAYS, when changed, how received 2041 how established, altered and discontinued, 2014, 2023, 2038, 2039 gates and bars across, hcense to erect how obtained 2057, 2058 hands when and how summoned, duty of, notice 2019, 2W4 how apportioned 2026 warrant for, failing to perform duty 2021 laid out by live freeholders 2040 notice to ovcrRcrrx of 2016. 201.') to hands 2019, 2014 Roads— Continued. SscnoH overseers of, appointment of, and notice to. . 2016 to apportion road among hands 2026 failiu-e of duty, misdemeanor 2022, awW to make footways and hollow bridges 2029 measure and mile-mark roads 2032 report to board of supervisors, moneys, .Sc, coUected 2021, 2022 set up sign posts 2030 summon hands, notice to 201!i, 2044 to take timber and earth from adjoining lands 2027 owners of mills and ditches on and across, to keep up bridges 2036 owners, of land and timber used in repairing bridges or roads, to be compensated 2028 penally for removing or defacing sign-posts or mile-marks 2031 persons exempt from working on 2018, 2059 failing to work, penalty 2020 liable to work on, time 2017 road steamers may be rim upon 2061 supervisors to examine, during the month of August 2015 townships divided into sections; boundaries; overseers 2016 width of 2025 turning, on one's own land 2042 Robbery 1064 See Crimes. Rotation, of judges 911 Salaries, of marshal of supreme court 960 of servant of supreme court 951 See Index, Vol. H. Sale, days of, under execution 454 hours of, under execution 459 conditional, of personal property, to be In writing and registered 1275 by executors and administrators, 1408-1414, 1485-1447 See Executora. under execution, how advertised 4.56 postponed, how long 465 judicial, proceeds of, how coUected 941 of personal property under execution 460 purchaser, under judicial, what title 94S Schools, County, fines, &c., paid to 99 public, tax on articles of agreement forming railroad companies, paid to treasurer for, 1933 public, tax on articles of agreement forming corporations other than railroads, paid to. 678 See Vol. U. Scire facias, writ of, abolished 603 Seal, attached by clerks, when 442, 1W7 furnished by governor. 8328 of county (31) 707 INDEX TO VOLUME I. 879 Seamen, Section I enticing from vessel, penalty 1103 to harbor, unlawful 1109, 1110, 1111 Search warrants, form and proceedings on IITI, 1172 Secretary of state, certifies appointment of commissioner of affi- davit 654 grants lands to railroads in certain cases 1955 list of commissioners of afSdavits printed ... 630 published in statutes 637 sent by, to clerk 635 preserves oath of Judge of superior court ... 924 publishes list of commissioners of affidavits resigning, &c 639 records names of commissioners of affidavits, 634 records and ffies articles of agreement of railroad companies 1952, 1933 See Vol. n. Security, additional in mortgage bonds for costs 119 defendant to give when 237, 326 for costs on appeal and to stay execution, 532, 554 Seizin, definition of (12) 1281 livery of, in conveyances to uses, possession transferred without 1330 Servant, larceny by, of master's goods 1065 See Vol. n. 6et-o£r, in actions to enforce liens 1788 See Counterclaim, Shares, in corporations may be attached 362 Sheriff, to account for moneys in hand in like man- ner as clerks 1868 actions against, for trespass under color of office, limitation 156 adjourns interior co>u-t from day to day superior court allowance for keeping horses 466, 467 oppraisers, &c., to lay off homestead sum- moned by ^2 levy made on excess 502 bail liable to, when 315 bond of 2073 when acting as county treasurer 769 to be approved by county commissioners; deposited with clerk 2066 to be registered 2066 to be renewed annually ; failure ; vacancy. . 2070 when justification of, required; failure; vacancy - 2074 in claim and delivery, liable for msuffloiency of undertaking 323 how to keep the property 3.30 duty of sheriff, when property claimed by third person 331 to take property concealed in buildings or on the person 329 Sheriff— Continued. Section responsible for the defendant's sureties, when 327. claims placed in hand of, to be collected dili- gently 8086 compensation for taking convicts to peniten- tiary 2089 how paid 2090, 2091 toroner acts as, when 6^ day of receipt of criminal process endorsed, penalty H"^ defendant m attachment recovering of plain- tiff, proceedings 372 delinquent tax-payers published, penalty .... 2093 deposit in heu of bail, to be paid into com-t, liabiUty 310 dying, &c., official deed made by whom 1S67 duties of, relating to persons in work-houses. 793 execute writs issued by board of internal im- provements, penalty for f aUing 1721 not to farm his office 2084 fees, unlawful, forbidden 2082 forthcoming bond to be taken by 463 furnish grand jury with list of retailers of liquors, penalty 2087 to have custody of jail 2085 to appomt keeper 2085 imprisoned in what jail 1874 ineligibiUty of certain persons as... 2067, 206S, 2i)69 Uability for failing to serve summons 202 liable for whole debt, in case of negligence in collecting 1888 permitting the escape of one in execution. 2083 as bail, when 313, 314 money collected for plaintiff paid immedi- ately 2080 notes, date of issue of executions 100 obligations of persons in custody made pay- able to 2082 order of arrest, how served by 296, 297 penalty for failing to execute process, Itc, 1112, 2079, 2088 for failing to execute writ of venire 1740 for failing to return writ of habeas corpus. 1639 process, executing out of his county. . , 9:31 executed by, penalty for neglect or false re- turn 2079 going out of office without executing, penalty 2088 how served, and returned by 598 . served on shipboard in Hyde and Carteret. . 2078 receipt given for; evidence 2081 property ordered to be deposited, to take charge of 381 publication of delmquent tax-payers, penalty 2092 release of prisoner without bail, penalty 1281 removed from office, duty of coroner .2071, 20T2 removing from state, official deed made by vhom. . 1267 resignation by 2077 successor elected by county commissioners. 8077 ;e;urn to be made by, of uffldavits and un- dertakings 880 INDEX TO VOLUME I. Sheriff— Continued. Section of attachment and of his proceedings 376 returning " no sale" for want of bidders.what to state, penalty 463 sale by, of real property under execution, to notify defendant "167 supplementary proceedings, judgment debtor may pay sheriff 489 sureties on bond of, liable for fines, &c 2076 taxes of county, collected by 723 See Vol. n. Shooting, at cars, locomotives, &c., penalty 1100 Sign posts, setup by overseers of roads 2030 Slander, limitation of action for 157 how stated in complaint 265 answer to 260 of women 1113, 376S Slavery, donation to persons while in 1278 persons formerly in, when deemed married . . 1842 Societies, secret political, prohibited 1095 Solicitor, action on guardian bond by, when; com- pensation 1584, 1586 duty of, in case of escape 1083 prosecutes for injuries to bridges 2055 inspects office of clerlj, penalty 88 notice to, in cases of habeas corpus, when given 1635 pos( 77M)r(«m examination directed by 1214 proceeds against corporations, when 691 prosecution of certain criminal cases in fed- eral court 1239, 1240 witnesses to be discharged by ; certificate of attendance, &c 746 See Vol. U, iSalarUs and Fees, Solicitor. Special Proceedings, for advancement of surplus income of insane person to next of kin 1077, 1685 for alimony of lionatic feme covert abandoned by husband 1086 clerlt to hear simimarily , when 285 code of civil procedure applicable 278 commencement of ; by petition, when 284. 287 complaint, when filed 281 failure to file 282 costs in 541 creditor against administrator for account, 1448 definition of 127 devisees and legatees to compel contribution by 1534 for draining or damming lowlands 1297-1304 for draining into a canal 1305-1310 for draining lands on a large scale 13U-1322 lor dower 211 1-21 1 5 against executor for final account 1525 foreign guardian to remove ward's estate by, 1598-1601 by guardian to sell ward's estate, 1602-1005, 1674, 1G7.'., I»a6 Special proceedings — Continued. Section infant or guardian, being petitioners in, order approved bj' judge 286 for legacies, &c 1610 for mills lSlSl-1857 nonsuit of plaintiff in. when 282 orders signed by judge, when 268 for partitions 1802 pleadings in, time of filing enlarged 283 processioning 1924-lt'31 by railroad companies to condemn land. .1944-1952 sale of real property by administrator for assets 1436-1447 sale of real estate belonging to wife of lunatic. 1687 summons, what to contain; return of 379, 280 by sureties of administrator or guardian in danger of loss 1519,1606, 1607 by telegraph companies to obtain right of way 2010-2013 trivial defect in, effect on report 289 year's allowance 2116-2135 See Vol. n. Special terms 913, 914,916 Springs, penalty for putting injurious substance In. . . 1114 State, claims against, how prosecuted 947, 948 costs incurred in what action, are charged against 742 property forfeited to, action is brought in the superior court 621 Statutes, how proved 13S8-1841 private, how pleaded 264 sale of land under private, repealed 458 Stniute of limitations, appucuDie to what actions 136 availed of by answer 138 general provisions of 161-176 See Limitation of Aeticns. Stockholders, in old banics of other states, action against, barred 176 Stud horses, owners of, have lien on colts 1797 Subornation, of perjury 1098 indictment, what to set forth 118S Subpoenas, diwen tecum, when may be issued 1872 how issued and served 677, 697, 1S56, 1866 Successor, clerk and other oOlcers deliver records, pa- pers. &c., to Ill, liM, «13 county treasurer to deliver books, &c. , to. . . . 7ii7 of justice of the peace to determine unfin- ished business 888 officers to hold over until qualification of. . . . 187S Suitors, judi.ial bonds. &c., for benefit of, suable in nume of state 61 Summons, auliou conimcuced by 161, 199,838,287 INDEX. TO VOLUME I. R81 Summons— Continued. Section in action by lessor to dispossess lessee, &c., 1767, 1768 alias or pluries, when issued 205 appearance of defendant equivalent to si^r- vice of 239 attachment served by publication, &c 348 attested, how 203 bond required by clerk before issuing S09 contains what notice 213 copy when and on whom served 217 in creditor's proceedings against executor, &c.y to account, when and where return- able 1450 how advertised 1451 published, how and when 1459 issued in same action, to several counties, when 204 issuing, service, and docketing of — 202, 832, 833 against joint debtors, &c., how served; plain- tiff to proceed, how, when not served on all 222 in mandamus, how returnable 633 manner of, service of, on corporation, minor, lunatic 217 against partners, how served 232 returnable at regular term, form 200 to second term, when 201 service of 214, 280 what notice inserted in 213 after judgment on joint contracts upon de- fendants, not summoned before 223 by publication, when complete 218, 219, 337 by publication in actions for foreclosure of mortgage 221 by publication defendant can defend before or after judgment, exception 220 how proved 22S in special proceedings, what to contain 279 Sunday, an-est in civil actions on, forbidden 29 in computing time, not counted 59 fishing, hunting, &c., on, penalty 1115-111 freight trains forbidden to run on ; loading and unloading, misdemeanor 1973 Superior courts, adjournment, when, by sheriff appellate jurisdiction 923 certain cases transferred to 944 certiorari, prisoner not discharged, when — 937 clerk of, office, where held, when open 80 to give judge holding special term certifi- cate 918 to read minutes, &c 935 courts, exchange of, by judges 913 special terms of 913, 914 adjourned, when 926 death of parties between verdict and judg- ment, not alleged as error, when 938 districts, counties composing judicial 910 exchange of courts by judges 913 former judgment, efTect of, plea of, in penal suit 933 Superior courts— Continued. Sectiok plaintiff may reply, what 932 grants, letters of adoption 2 effect of, order 3 holding, term of, time 910 issues of law or fact arising on contested ad- ministration, transferred to superior court for trial 1382 judges, rotation of, &c 912, 913 judgment certified to, from supreme court, how proceeded in 957 judicial sales under order of, proceeds, how collected 941 purchasers at, owners, for what purposes.. 942 jurisdiction and powers of 923 original, appellate 933 of bastardy 32-40 of divorce and alimony 1282 opened and held by whom 910 terms of 910 special, regulations concerning 913-921 vacation, rehef granted In 230 Supersedeas, writ of, undertaking 545 Supervisors of public roads, board of, authorized to control public roads 2014 to establish, alter and discontinue cartways and church roads 2023, 3057, 3062-2064 to contract for building and repairing bridges with assent of county commis- sioners 2034 biennial meetings of 2015 annually to divide roads of township into sections 3016 annual report made to superior court 2024 appoint overseers and allot hands 2016 contracts for building bridges binding on county .2035 erection of gates across cartways and high- ways 2057, 2058 footways and hollow bridges made by order of; orderpresumed, when 2029 furnish constable with orders appointing overseers 2043 ovei"seers to make verified reports to, relat- ing to condition of roads, &c 2031, 2022 persons, infirm, exempted by 2018 Supplemental pleadings 277 Supplementary proceedings, 488-500 See Extcution. Supreme Court, adjourned, if no justice attends during first week 954 amendments, &c., made by 965 appeals to 946 dismissed when 967 attorney-general absent, court may appoint 969 bond of clerk; oath 958 certificate of decision, when given 964 claims againtthe state, how prosecuted in, 947, 948 clerk allowed rooms 9.">2 office, where kept 958 SS2 INDEX TO VOLUME I. Supreme court — Continued. Section to record proceedings 959 to talie oath 9."i8 costs, execution for, issued, how 908 court of record 954 deeds, justices of courts may take probate of, &c 949 exhibits to be examiued by 9(>3 execution not to be issued until opinions de- livered 904 judgment docketed when and where 436 lien of 430 final, in civil actions certified to superior court 937 in criminal actions 957 rendered on review of record 957 jiuisdiction 945 justices of, to prescribe rules of practice 901 appoint marshal, compensation 950 select and remove servant; fix his compen- sation 951 oath taken by 955 filed 955 two, sufficient to hold court 95G license attorneys 17 name and style of court 954 opinions to be in writing 904 petition to rehear, when filed 906 terms of, duration 953, 954 Surety, action against surety of executors, &c., limi- tation 155 on bond of executor, how to obtain relief 1519 of sheriff liable for fines, &c S076 co-surety sued by, for ratable part of debt paid for principal 2095 defendant may show suretyship, justice to find facts 2100 may dissent from stay of execution, then not liable to stayer; officer, how to col- lect in such cases 2095 of euardian, in danger of loss, how relieved. 1600 on guardian, bond reUeved by payment to clerk, when ]C2a indorsers of, bills liable as 50 judgment against, by appellate court, on ap- peal bond 503 notice to creditor by surety to be in writ- ing 2097 how served ; effect 2098, SOflS on official bonds to justify 1%6 paying debt of deceased, principal to have same priority as creditor had, against the estate 2096 property of principal liable to be levied on before that of surety 2101 summary remedy for surety again.st prin- cipal 2093 SurpluH, in bands of executor, paid over, when 1488 to be distributed by receiver of corporation . . 670 Surprise, relief in cases of neglect or 374 Surveyor, SEoiio.t employed by commissioners in partition. . . . 1895 county, deemed processioner 1931 Surveys, consolidation of, proviso; common, may be registered I27i ordered by court, when 93S Survivor, in joint tenancy does not bold the entire es- tate 1826 Suspension, of execution, when 256, &19, S&4-S61 Swamp lands, commissioner to drain, appointed; duties ISIO damages to, drained, how 1311, 1321 proprietors draining; when a corporation, name, shares, <£c 1313, 1320 Swearing, profane, before a justice of the peace, pen- alty.- 848 Talesuieu 863, 1733, 1734, 1737 Tax, on articles of agreement 678, 1933 on bills to create or amend acts of incorpor- ation 696,2004 fees for payment of jurors 7.12 Telegrapli companies, chapter on corporations applicable to, how repealed 701 injury to poles, penalty 1 1 18 lines of ; who may construct, and where 2007 right of way , may contract for, with whom . . 2008 upon just compensation. 2009 obtained by petition, contents 2010 petition, how served and on whom 2011 proceedings for condemnation 2012 conunissioners may inspect premises, costs, how paid _ . . 2013 Teleplione, injuring poles, penalty 1118 Tenancy, length o£ notice required to terminate 1700 Tenants, agreements in lease by, to repair, how con- strued 1752 in common, application for sale of real estate by, how made, order, terms and notice of sale 1903. 1904, 1005 in common or joint, of personal property, actions by, when barred and not 173 in common, procedure to sell laud of, when required for public purposes 1907 controversy between landlord and tenant, relating to crops, how determined . . . 1756-1788 desertion by, of premises, remedies of lessor 17T7 holding over, dispossessed, when 1766-1770 injuring house, fruit trees, &c., of landlord, misdemeanor 1761 joint share of co-tenant deceased does not sur\ive, proviso 1820 not liable for damages by acci- ported out of his property 1686 owning property, order of sale obtained from clerk 1687 may insure husband's life for her use 1841 mortgage to secure purchase-money need not be executed by 1273 power of, to make a will 1839 real estate of, not sold or leased without her consent 1840 right to administer on husband's estate, lost when and how 1480, 1481 savings from separate estate, her separate property 1837 not suing for divorce, when entitled to ali- mony 1292 testifies as to pregnancy in case of divorce. . 1288 witness for or against husband 687, 1288 competent, for defendant husband in crim- inal proceedings 1363 WUls, appointment under powers in, how executed and when valid 2139 caveat, transferred to superior court, when . 2159 to probate, when and by whom entered . . . 2168 order to suspend proceedings, when bond given . 2160 costs in such cases, how paid 2161 certified copy of lost, evidence 58 copy of, where recorded 2174 evidence *1 ' 5 children bom after date of, shall not be pre- judiced 2145 clerks may compel production of, by process. 2154 886 INDEX TO VOLUME I. WllU-continued. Section copy of lost, how probated 5; of, lost or destroyed, evidence when 2183 of, filed in office of secretary of state, evi- dence 2181 contingent limitations in, how construed 1J27 destroyed, contents how established. . 59, 63, 67 devises and bequests in, to witnesses void . . . 21-17 devises in, lapsed and void, to pass under residuary clause 2142 construed in fee, unless contrary intention appear 2180 not effectual without probate 2174 executed, how and by whom 2136, 2137 executor of, competent witness of auo of, who disqualiBed to act 2162 how to renounce 2163 when deemed to have renounced 2164 of, under disqualiflca.lon of age, absence, &c., when to take out letters 2165 fraudulent concealment or destruction of 1072 general gift in, includes what estate 2143 gifts in, to issue dying before testator, but leaving issue vest in such issue 2144 guardian, father or mother may appoint ^y 1562-1564 holograph 0,35 jurisdiction of clerk of superior court over.. 1474 letters testamentary on lost 58 how issued and tested 2172 of administration cvm tentavientv anntxo, when and to whom granted 2166, 2167 will of testator be observed 2168 meaning of word " will " (9) 3755 of non-residents, how allowed and recorded. 21.56 nuncupative /3j oj^g oath of executors, &c., to be taken 21G9 original to be filed in clerk's office 2173 power of married women to make 1839 21.38 power of sale under, not affected by chapter entitled, " Executors and Administra- ^^" 1415 probate of, conclusive until vacated or de- clared void 2U;()^ o]74 probate of, how made 2148 without the state 2155 application for, made by whom 21 51 2152 to show what 2153 property, rights and interests,di.sposed of by. 2140 proofs and examination of witnesses to be written by clerk 2149 when proved, former letters revoked by clerk 2j~Q recorded m other states, proved by certified e°Py 1344 record of, kept by clerk of superior court. (1) 112 registry of wills recorded In wrong county, evidence of 2182 of reiidents, proved in another county or Btate, how allowed and recorded 21S7 revocation of letters testamentary or admin- istration, when made 2170, 2171 take effect as at death of testator 2141 I WilU-Cuiitinued. Skctioh time of controversy about, not counted 168 widow's dissent f 10m, effect 2108, 2116 time for making dissent 2108 written how and when revoked 2174 by marriage 217T not revoked by altered circumstances 2178 nor by conveyances, &c., after execution of 21^ M Itnesses. appeal from justice of the peace, only two bound over 745 attendance proved at each term; may re- cover fees 1369 attend special terms 920 not to attend untU day set for criminal docket J.1U3 attends until discharged 1.356 before grand jury, when paid 743 before commissioners to take depositions, 1363, 1364 certificate of solicitor, by whom filed 746 co-plaintiff or co-defendant to be 587 crime does not incapacitate 1350 in cr/minal actions, only two paid. . 744, 1370, 3756 how far paid by county 744 certificate of solicitor or order of court necessary 74^ cross-examined by prisoner 1145 defendant in crijumal proceedings compe- tent when 1353 of defendant, when county to pay 747 devises and bequests to, void 2147 execution not to issue against defaulting witness until after notice 1355 executor competent, to prove execution of "^ 2147 exempt from arrest in civil actions, attend- ing court j3g7 failing to appear, how punished 65-( fees of, in criminal cases : 1204,3756 fees of, how paid in criminal cases. ... 1204, 3756 husband and wife may be, exceptions, 588, 1288, 1353 interest not to exclude egg, 1350 before jury of view, how paid 1365 justice of the peace, how summoned, pen- ary 847 parties examined as, when 580-582, 600 person whoso name is forged, competent. ... 1192 persons engaged in gaming made competent. 12IS for whom action is brought or defended, tnay be 586 rules for summoning 1355 security to be given for appearance, failure, pen*"? 1154, 1155 of Btate, when paid by county 740 subpoenas for, issued by clerk in cases not otherwise provided jsgg summoned to prove deeds, when 1268 in supreme court, how examined ggs testimony of party as to new matter may be rebutted ggg INDEX TO VOLUME I. 887 1070 Witnesses— Coutiuued. Section tictets, how restored when destroyed 63 llled with clerk, taxed as costs 13™ Woman, abortion, miscarriage. &c.. procuring 975, 976 not subiect to arrest in civil actions (5) 291 slander of "1^'- ^763 Wood, larceny of , &c notice given before fli-ing 6^- "-^ wagoners to put out camp fires, penalty S4 Work liouses, action on behalf of, brought in name of . county commissioners "i^'™ compensation of manager,