Cl)e ILitJtarp of tbe Onitiersitp of jQottl) Carolina Collection of jl^ortg Caroliniana ^nttolocl) fap Jogn &prunt l^tll of t!)e eilass of 1880 CBM'b.Z IS55 UNIVERSITY OF N.C. AT CHAPEL HILL 00035471765 This book must not be taken from the Library building. Digitized by the Internet Archive in 2011 with funding from Ensuring Democracy through Digital Access (NC-LSTA) http://www.archive.org/details/revisedcodeofnor1854nort REVISED CODE / NORTH CAROLINA, ENACTED BT THE GENERAL ASSEMBLY AT TIE SESSION OF 1854; TOGETHER WITH OTHER ACTS OF A PUBLIC AND GENERAL NATURE, PASSED AT THE SAME SESSION; THE CONSTITUTION OF THE STATE — THE CONSTITUTION OF THE UNITED STATES, ETC., ETC. PkEPAKED UJSDEK ACTS OF THE GESEB.tl, ASSEMBLY PASSED AT THE SESSIONS OF 1850 AND 1854, BARTHOLOMEW F. MOORE AND ASA BIGGS. PRINTED AND PUBLISHED UNDER THE SUPERVISION AND DIRECTION OP BARTHOLOMEW P. MOORE AND WILLIAM B. RODMAN IN ONE VOLUME BOSTON: LITTLE, BROWN AND COMPANY, 1855. Entered according to Act of Congress, in the year 1855, by WILLIAM B. RODMAN AND B. F. MOORE, On behalf of the State of North Carolina the proprietor, in the Clerk's Office of the District Court of the United States for the District of Newbem, North Carolina. CAMBKIDGE : ALLEN AND FARNItAM, rniNTEES. PREFACE OF THE COMMISSIONERS OF 1833. The revision and consolidation of the whole public statute law will constitute an important epoch in the legislative history of North Carolina. In presenting this work to the public the commissioners for superintend- ing its publication, have thought that some facts, connected with and illustrating that history, might be neither an inappropriate nor uninter- esting introduction. Their limits confine them to a brief summary, and compel them to omit much, both of detail and remark, that would be necessary to do justice to the subject. The first permanent settlement in North Carolina was made about the year 1660, by emigrants from Virginia, on the north side of Albemarle Sound, and probably on Durant's Neck in Perquimons county, lying between Perquimons and Little Rivers. The oldest land title is a con- veyance for that neck of land from the king of the Yeopim Indians to George Durant, dated in 1662. On the twenty-fourth of March, 1663, King Charles the Second granted to Edward, Earl of Clarendon, and others, as true and absolute Lords Proprietors, all the country from the Atlantic to the Pacific Ocean, included between the thirty-first and thirty-sixth parallels of north latitude ; and on the thirtieth of June, 1665, by a second charter he enlarged the powers of the grantees, and extended their boundaries so as to include all the country between the parallels of thirty-six degrees thirty minutes and twenty-nine degrees, north latitude These grants will be found in the second volume of this work.* Among other powers which they conferred on the Lords Proprietors was that of * 2d Vol. p. 1 and 43T, published in 1837. PEEFACE. enacting laws and constitutions for the people of that province by and ivith the advicCy assent, and approbation of the freemen thereof or of the greater part of them, or of their delegates or deputies, who were to be assembled from time to time for that purpose. In the year 1663, George Drummond was appointed by Governor Berkley of Virginia, in pursu- ance of instructions from the Lords Proprietors, the first governor of the colony, then known as the county of Albemarle. In October, 1677, Governor Drummond was succeeded by Samuel Stephens, who was authorized to grant land, reserving to the Lords Proprietors one half of the gold and silver ore. At this time the first constitution was given to the colony. It directed that the governor should act with the advice of a council of twelve, one half to be appointed by himself, the other half by the assembly; and the assembly was to be composed of the governor, the council, and twelve delegates chosen by the freeholders. Historians do not agree as to the precise year, in which the first legislative body in North Carolina convened. It was certainly, however, either in 1666, or 1667. This legislature was called "the Grand Assembly of the County of Albemarle;" and on its petition the Lords Proprietors, by an instru- ment since called the "Great Deed of Grant,"* directed that lands should be held by the inhabitants of the said county, on the same terms and conditions as lands were held by the inhabitants of Virginia. The principal acts of this assembly were such as were believed to be required by the peculiar situation of the country, and were prompted by an anx- ious desire to increase its population. Suits for any debts created out of the country were prohibited for five years — new settlers were exempted from taxation for one year — the right to a certain quantity of land, acquired by migration, could not be transferred until the owner had remained two years in the country — dealers from abroad were prohibited from trafficking with the Indians ; and as there were no regular ministers, marriages might be contracted by a simple declaration by the parties of their mutual consent, made before the governor or a member of the coun- cil, in the presence of a few neighbors. These laws were transmitted to, and approved by, the Lords Proprietors, who had reserved to themselves a veto on the acts of the Assembly. In July, 1669, the Lords Proprietors adopted a new form of government for their colony. It was styled " The * See 2tl Vol. p. 13. Fundamental Constitutions of Carolina," and was the production of the celebrated John Locke.* Its provisions were so illy adapted to the situa- tion of the country, and to the habits, customs, and feelings of the people for whom it was intended, that all the efforts of the proprietors could never carry it into practical operation. After producing great discontent, faction, and disorder throughout the colony for more than twenty years, it was finally abrogated in 1693. By one of its provisions, the eldest Lord Proprietor was called Palatine ; and the style of the enactments by the Grand, afterwards called General, Assembly, during the whole of the Proprietary government, was thus — " Be it enacted by his Excellency the Palatine and the rest of the true and absolute Lords Proprietors of Carolina, by and with the advice and consent of the rest of the members of the General Assembly now met at for the north-east part of the said province, and it is hereby enacted by the authority of the same." The acts were signed by the governor, by the deputies of the Lords Proprietors, (each proprietor having one deputy,) and by the speaker of the house of delegates. No record is to be found, in any of our public offices, of acts passed prior to the session of " a General Biennial Assembly, held at the house of Captain Richard Sanderson, at Little River, begun the seventeenth day of November, 1715, and, con- tinued by several adjournments, until the nineteenth day of January, 1716." It seems that a revisal of all the acts of the assembly up to that period had been made under the directions of an act of the preceding session, which is not now extant. A manuscript copy of the acts of 1715, much mutilated, is on file in the office of the secretary of State of North Carolina. Among these acts is one entitled " An Act for y" con- firmation of y* laws passed this session of Assembly and for repealing all former laws not herein particularly expressed." After this preamble, " Whereas in pursuance to an act of Assembly made and ratified y= sixth day of November last past the ancient standing laws of this Government have been carefully revised," it enacts " That all laws heretofore made within this province, such only excepted as by their particular titles are hereby expressly continued and revived, are and stand hereby repealed, annulled, and void, and that all laws now made, passed, and confirmed this present session of Assembly, together with such other as are here- * 2d Vol. p. 449. Vlll PREFACE. after mentioned to be continued, shall be of full force and shall be hence- forward deemed taken and adjudged as the body of the laws of this Government and no other heretofore made." It then provides for rights acquired under the acts repealed, specifies the acts continued in force, and goes on to declare — " That the chief justice and the clerk of each and every precinct court shall take care that the transcript or book of laws deposited in his or their custody shall be constantly laid open upon the court table during the sitting of the court for the perusal of such members of the court or other persons litigating causes therein as shall have occasion so to do " — and also " that the clerk of each court shall at the next court after receipt thereof publicly and in open court read over the same and so yearly at the first court next following the first day of May under the penalty of five pounds for such neglect." A number of well drawn and important acts were passed at this session; among which may be mentioned one, " An Act concerning old titles of lands and for limitation of actions and for avoiding suits in law," the provisions of which, with slight alterations, have continued in force to the present day. On the twenty-fifth day of July, 1729, seven, of the eight proprietors of Carolina, in consideration of seventeen thousand five hundred pounds sterling, conveyed all their rights, privileges, and franchises to George the Second, King of Great Britain ; and Earl Carteret, afterwards Lord Granville, the eighth lord proprietor, conveyed all his right of jurisdiction over the said province or colony, reserving his one eighth part of the soil and territorial rights. The proprietary government then ceased and the regal government commenced. The last General Assembly held under the proprietary government met at Edenton on the twenty-seventh day of November, 1729, and the first under the royal government met at the same place in the year 1734. It may be proper here to remark, (though there is some, confusion in history as to this point,) that the division, into North and South Carolina, had probably been consummated before, or about the year 1700. George Burrington was appointed by the king on the twenty-ninth of April, 1730, the first royal governor. His council con- sisted of seven members, three of whom with the governor formed a quorum. They were appointed by the crown, except that the governor and council might temporarily fill vacancies, and constituted the first branch of the legislature. Burrington having abdicated, Gabriel Johnston PREFACE. was appointed governor, the ablest of all the colonial governors; not less distino-uished for his energy and prudence than for his extensive classical and scientific attainments. He continued in office from 1734, till his death in 1752. During this period the style of enactment was as fol- lows — " We pray that it may be enacted and be it enacted by his Excel- lency Gabriel Johnston, Esq., Governor, by and with the advice and consent of his Majesty's council and General Assembly of this province and it is hereby enacted by the authority of the same." After the death of Governor Johnston, Matthew Rowan first, as president, and then suc- cessively, Arthur Dobbs, William Tryon, and Josiah Martin, as governors, presided over the province until the revolution, in 1776. The style of enactment was changed after the year 1753. It was then " Be it enacted by the Governor, Council, and Assembly and by the authority of the same." The acts were signed by the governor, president of the council, and speaker of the assembly, — the council and assembly being separate bodies, — and were subject to the approval or disapproval of the king in council. At the session of the General Assembly held at Newbern on the seventh day of March, 1746, after a preamble that " Whereas for want of the laws of this Province being revised and printed, the magistrates are often at a loss how to discharge their duty, and the people transgress many of them through want of knowing the same," it is enacted, " That the Honorable Edward Mosely, Esq., Samuel Swann, Esq., the Honora- ble Enoch Hall, Esq., and Mr. Thomas Barker, or the majority of them, be and they are hereby nominated and appointed commissioners to revise and print the several acts of assembly in force in this province." They are required to " revise the said acts of assembly, and compile them into one body, and make an index, marginal notes, and references thereto, and to lay the same before the next succeeding General Assembly after they shall have so revised and compiled them, to be ratified and confirmed." By subsequent sections, the laws so revised and ratified are to be printed and distributed, and the copies so printed are to be received in evidence before any judicature. This act was passed on the earnest and repeated recommendations of Governor Johnston. Of the commissioners so ap- pointed, Edward Mosely and Samuel Swann alone appear to have acted ; and, Mosely having died before the completion of the work, Samuel Swann reported to the General Assembly at their session on the sixteenth- of October, 1749. At that session an act was passed to confirm this revisal. The preamble states "Whereas the whole body of the laws of this Province to the seventh day of March in the year of our Lord one thousand seven hundred and forty-six have, in pursuance of the act, &c. &c., been carefully compiled and revised, and the said revisal laid before both houses of this present Assembly and approved of by the said houses." The act then recites the acts revised and confirmed, directs them to be printed, and the printed copies to be evidence. It repeals all acts not confirmed, and saves the rights of parties, &c. In pursuance of this act, the code of laws so revised was printed and published at Newbern, by James Davis, in the year 1752, under the title : " A Col- lection of all the public Acts of Assembly of the Province of North Carolina, now in force and use ; together with the titles of all such laws as are obsolete, expired, or repealed ; and also an exact table of the titles of the Acts in force. Revised by Commissioners appointed by an Act of the General Assembly of the said Province for that purpose, and exam- ined with the records and confirmed in full Assembly. Newbern — printed by James Davis : MDCCLII." Davis was the first public printer, erected the first printing-press, and this was the first book printed, in North Carolina. It is said by Martin in his history, that this act confirm- ing Swann's revisal was, through some jealousy of the General Assembly, disapproved by the king in council. Up to this period the acts of the Assembly had been promulgated in manuscript copies, which were trans- mitted to the judges and clerks of the several courts, and directed to be annually read, openly, in each court. Another edition of the public laws was published by James Davis at Newbern in 1765, dedicated to Gov- ernor Tryon ; and still another in 1773, dedicated to Governor Martin. These were both on private account. Since the revolution the acts of Assembly have been regularly printed and distributed, at the end of each session. The last session of the General Assembly under the royal gov- ernment, whose proceedings are on record, was held at Newbern on the second day of March, 1774, and its acts are signed by Josiah Martin, governor, James Hasell, president, and John Harvey, speaker, on the nineteenth of March, 1774. The Assembly met again in April, 1775 ; but was immediately dis- solved by the governor. i\. meeting of deputies from the different counties PREFACE. XI had been held in August, 1774, and by adjournnaent reassembled in April, 1775. The deputies again met in convention in August, 1775, and ap- pointed a provincial council, consisting of Samuel Johnston, Cornelius Harnet, Samuel Ashe, Abner Nash, James Coor, Thomas Jones, Whit- mill Hill, William Jones, Thomas Jones, Thomas Person, John Kinchen, Samuel Spencer, and Waightstil Avery. The revolution was then in full progress. The Mecklenburg Declaration of Independence was signed on the twentieth day of May, 1775. Deputies had been sent to the con- tinental congress in 1774, and 1775. The Declaration of Independence by the United States, on the fourth of July, 1776, was proclaimed at Halifax, on the first of August of the same year, by direction of the council of safety. A congress of the representatives of the freemen of the State of North Carolina, assembled at Halifax the eighteenth day of December, in the year 1776, for the purpose of establishing a constitution or form of government for the State. Besides adopting the constitution, this congress performed the functions of an ordinary legislature ; its legis- lative acts, however, being generally limited to the end of the next Gen- eral Assembly. These acts were styled ordinances. Richard Caswell, a distinguished patriot and soldier, was the president. Among others, an ordinance was passed directing " That Thomas Jones, Samuel Johnston, Archibald Maclaine, James Iredell, Abner Nash, Christopher Neale, Sam- uel Ashe, Waightstil Avery, Samuel Spencer, Jasper Charlton, and John Penn, Esquires, be appointed to revise and consider all such statutes and acts of assembly as are, or have been in force and use in North Carolina, and to prepare such bills to be passed into laws as may be consistent with the genius of a free people, that form of government which we have adopted, and our local situation, and to lay the same before the next General Assembly for their approbation." It is not now known how many of these commissioners accepted this trust, or what share of its execution was borne by any one of them, but the fruits of their labors are manifest in the laws passed in the years immediately succeeding, — laws which have received repeated encomiums, for the ability and skill and accuracy with which they are drawn. The style of enactment was now changed, so as to read " Be it enacted by the General Assembly of the State of North Carolina, and it is hereby enacted by the authority of the same," which style has ever since been continued. Xll PKEFACE. By an act passed in 1715, it was declared that " the common law is, and shall be in force in this government," except such parts as relate to the practice in courts, which were to be supplied by the general court, subject to the approval of the governor and council. It is also declared, that " all statute laws of England providing for the privileges of the people, as also all statute laws made for limitation of actions, and pre- venting of vexatious lawsuits, and for preventing immorality and fraud, and confirming inheritances and titles of land are and shall be in force here, although this province or the plantations in general are not named." By an act passed in 1749, the statutes of Great Britain which are to be in force, are particularly enumerated, and the common law declared to be in force with certain exceptions. And by an act passed in 1778, reciting, that " whereas doubts may arise upon the revolution in govern- ment whether any, and what laws continue in force here," it is enacted " That all such statutes, and such parts of the common law, as were heretofore in force and use within this territory, and all the acts of the late General Assemblies thereof, or so much of the said statutes, common law, and acts of assembly, as are not destructive of, repugnant to, or inconsistent with the freedom and independence of this State and the form of government therein established, and which have not been other- wise provided for, in the whole or in part, not abrogated, repealed, expired, or become obsolete, are hereby declared to be in full force in this State." At the session of the General Assembly, in 1787, it was enacted " That James Iredell be, and he is hereby appointed a commissioner to revise and compile the acts of the General Assemblies of the late Province and present State of North Carolina, and to insert the charter from the crown of Great Britain, &c. — and further, the said commissioner is hereby authorized and directed, in revising and collecting said acts, to leave out all laws repealed or obsolete, all private acts, and all other acts on which no question of property can arise : and further, the said commis- sioner is hereby required to see the said acts printed in the same order and in the same words in which they now stand, with marginal notes of the contents of each section, a marginal reference, and a copious general index with reference to each act, and the contents of each section." This duty was performed by the commissioner appointed, and the laws so revised were printed by Hodge and Wills, at Edenton, in 1789, including the acts of 1788. It was approved in every respect by an act passed in 1791, and has since been commonly known as " Iredell's Re- visal." In the year 1792, Francois Xavier Martin, in obedience to a resolution of the General Assembly of the preceding year, published a " Collection of the statutes of the Parliament of England in force in the State of North Carolina ; " of which work it may only be remarked, that it was utterly unworthy of the talents and industry of the distinguished compiler, omitting many important statutes, always in force, and insert- ing many others, which never were, and never could have been in force, either in the Province, or in the State. In the year 1794, also, in pur- suance of a resolution of the General Assembly of the preceding year, the same gentleman pviblished " A collection of the private acts of the General Assembly, from the year 1715 to the year 1790, inclusive, now in force and use." In 1800, John Haywood, one of the judges of the superior courts, published " A Manual of the laws of North Carolina, arranged under distinct heads, in alphabetical order ; with references from one head to another when a subject is mentioned in any other part of the book than under the distinct head to which it belongs." This work was a great favorite with the public, and passed through several editions. In 1803, it was resolved by the General Assembly " that Francois Xavier Martin collect and revise the public acts passed since the publication of Judge Iredell's Revisal, to the end of the present session inclusive ; which said revisal shall connect the acts passed since Judge Iredell's, by notes and remarks, adverting to such as appear to have been virtually repealed, and retaining such as are not expressly so, and cause his said revisal to be printed." This revisal was prepared and published by Mr. Martin, and approved by the siicceeding legislature. At the session of the General Assembly in 1817, it was enacted, « That a committee of three persons be appointed by joint ballot of both houses, whose duty it shall be to revise and consolidate the public acts, and parts of acts of the General Assembly of this State heretofore passed, or which may be passed before the completion of their work ;" and also, " That it shall be the duty of said commissioners to enumerate and specify those statutes and parts of statutes of Great Britain, which are in force within this State." The commissioners appointed were, John Louis Taylor, chief XIV PREFACE. justice of the supreme court, Henry Potter, judge of the district court of the United States, and Bartlet Yancy, speaker of the senate. The revisal, completed by these gentlemen after the manner of Iredell's revisal, was ordered by the legislature to be published, and was published in 1821, under the superintendence of Judge Potter, the acts of 1820 being in- cluded. This work has usually been called " the Revised Code," or the " New Revisal." PHEFACE CONTINUED BY THE COMMISSIONERS Or 1S54. At the session of the General Assembly, in 1833, it was enacted, that three commissioners should be appointed by the Governor, " to collate, digest, and revise, aU the public statute laws of the State," with instruc- tions to reduce into one act, all acts and parts of acts upon the same subject, and distribute the acts thus consolidated, under proper titles, divisions, and sections. For this purpose the late Gavin Hogg, Esq., and Gov. Iredell, with the Hon. William H. Battle, now a judge of the Supreme Court, were appointed. Mr. Hogg, by reason of ill health, soon abandoned the commission ; and the vacancy was filled with the Hon. Frederic Nash, now chief justice of the Supreme Court. The plan of revision adopted, was " simply to digest and consolidate into one act, all the various statute laws relating to one subject, occasionally to alter vicious and inadvertent phraseology, and to insert into the body of the statute, such new provisions as seemed to them manifestly proper," and to incorporate with them, such British statutes as were in force. The work was finally reported to the General Assembly of 1836 ; and at that session, the acts thus digested, were amended and passed into laws, entitled, " The Revised Statutes," which were comprised wholly in the first volume printed under that title, — the second volume being little else than a collection of charters, and boundaries of counties. This was a work much demanded, and was favorably received by the public. From the construction, however, put on their powers by the commissioners, very little change was made in the language of the stat- utes, as they were originally enacted, or last revised. To some extent, and in cases very palpably requiring it, this was done by the legislature of 1836. In 1850, the General Assembly deeming another revisal of the statutes necessary, empowered the Governor to appoint three commissioners for that purpose, with instructions similar to those prescribed in the act of 1833. The undersigned B. R Moore, with the Hon. R. M. Saunders, and the Hon. Asa Biggs were appointed ; and after some progress in the work, Mr. Saunders resigned. At the ensuing session of the Legislature, Messrs. Biggs and Moore were directed to continue and complete the unfinished work. In its execution, (to use the language of their report to the General Assembly of 1854,) they "departed in one respect, very essentially from the course pursued by former commissioners ; they not only compiled, and brought together the different acts, and parts of acts on the same subjects ; but they consolidated them, by fusing them together, and giving them the character of a single enactment ; and as to a great many, and indeed most of the acts, they expunged the verbiage, where it was merely cumbersome and imparted no aid in ascertaining the meaning of the law." The laws as revised and reported, with such alterations and amend- ments as were deemed proper, were passed ; and have now become the law of the land, under the title of " The Revised Code of North Caro- lina." By virtue of the " act concerning the Revised Code," the undersigned were appointed superintendents of publication. In that act are pre- scribed their duties. The marginal digests of the sections of the acts as first published, have not been revised for many years past, imperfect and scant as they were. Although a great part of them was the hasty work of the public printer, they had undergone no change, and furnished almost the entire material of the index to the matter contained in the stat- utes. These digests have been greatly enlarged in number, and most of them were corrected in phrase, by the commissioners of revision ; and all have received, at the hands of the undersigned, much additional alteration. The Constitutions of the State, and the United States, they have caused to be printed with a marginal digest, and an index following each instru- ment. In regard to the references to the decisions of the Suj^reme Court, they have felt much embarrassed. These decisions have greatly increased in number since the publication of the Revised Statutes in 1837. To have referred to those only, which directly construed the words of the statutes, would have answered, very imperfectly, the end designed ; to have referred to all indirectly connected with the statute, would have been cumbrous. Moreover, in not a few instances, the known purpose of laws having been defeated by judicial decision, (a calamity which sometimes befalls the best considered acts,) an attempt has been made to regain the purpose, by a change, in the Revised Code, of the language which defeated it. In such cases the decision is of little consequence, except, perhaps, to aid the inquiring lawyer to discover, that the case is of no authority against a change of the construction, while it may mislead those who skim the sur- face of investigation. In such cases, they have not prescribed for them- selves any inflexible rule, but have endeavored to refer to all the leading cases connected with each subject, which they thought the practising lawyer would likely be desirous to use. Notwithstanding all the care which the commissioners have been able to use, imperfections will doubt- less exist in their work ; but having discharged their duty, with faithful purpose and industry, they submit it to the public. B. F. MOORE, WILL. B. RODMAN. TABLE OF CONTENTS. Mecklenburg Declaration of Independence, and Names of Delegates, Names of Delegates to State Congeess in 1776, ... Declaration of Rights and State Constitution, with the Amendments Constitution of the United States, with the Amendments, Chapter 1. Abatement of Suits, Agriculture and Geology Amendment, Appeals, &o.. Apprentices, Asylums, Attachment, . Attorney-General and Solicitors, Attorneys at Law, . Auctions and Auctioneers, Bail in Civil Cases, . Bastard Children, Bills, Bonds, &c. . Boats and Canoes, Book Debts, Burning Woods and Hunting, . Cattle, and other Stock, Chai-ities, .... 19. Clerks of the County and Superior Courts, 20. Clerks and Masters in Equity, . 21. Commissioners of Affidavits, 22. Common Law, . Comptroller, Constables, Coroners, Corporations, County Boundaries, County Revenue and Charges, . County Trustees, Court Houses, Prisons, &c. Courts, County and Superior, Courts of Equitj-, 33. Court, Supreme, 34. Crimes and Punishments, 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 91 100 101 103 105 107 110 113 113 115 115 118 119 123 124 126 126 128 131 132 139 139 143 145 147 18G 194 201 TABLE OF CONTENTS. CnAriER 35. Criminal Proceedings, 36. Currency, .... 37. Deeds and Conveyances, 38. Descents, .... 39. Divorce and Alimony, 40. Draining and Damming Low Lands, 41. Electors of President and Vice President, . 42. Entries and Grants, 43. Estates, . . . . . 44. Evidence, .... 45. E.xecutions, ..... 46. Executors and Administrators, . 47. Fairs, 48. Fences, ..... 49. Forcible Entry and Detainer, 50. Frauds and Fraudulent Conveyances, . 51. Gaming Contracts, .... 62. General Assembly, 53. Governor and Council, 54. Guardian and Ward, 55. Habeas Corpus, .... 56. Husband and Wife, 57. Idiots and Lunatics, .... 58. Infamous Persons, 59. Insolvent Debtors, . . , . 60. Inspections, .... 61. Internal Improvement, 62. Justices of the Peace, 63. Landlord and Tenant, 64. Legacies, &c., .... 65. Limitations, ..... 66. Literary Fund and Common Schools, . 67. Mad Dogs, ..... 68. Marriage, .... 69. IMembers of Congress, 70. Militia, ..... 71. Mills and Millers 72. Mines, ..... 73. Money remaining in the hands of Clerks, &c 74. Names, ..... 75. Notaries, ..... 76. Oaths, ..... 77. Offices, . . . . . 78. Official Bonds, .... 79. Ordinaries and Inns, 80. Overseers, .... 81. Oysters, and other Fish, 82. Partition, .... 83. Patrol, ..... 84. Pensions, .... TABLE OF CONTENTS. CiiAPTEK 85. Pilots, 86. Poor, 87. Prisoners, 88. Processioning, . 89. Public Arms, 90. Public Debt, 91. Public Documents, . 92. Public Library, . 93. Public Printing, 94. Quarantine and Health, 95. Quo Warranto and Jlandamus, 96. Registers, 97. Religious Societies, . 98. Replevin, 99. Revenue, 100. Rivers and Creeks, 101. Roads, Ferries, and Bridges, 102. Salaries and Fees, 103. Seat of Government, 104. Secretary of State, 105. SherifiTs, 106. Slander of Women, _ 107. Slaves and Free Persons of Color, 108. Statutes, Repeal and Construction of, 109. Strays, 110. Surety and Principal, 111. Towns, 112. Treasurer, 113. University, . 114. Usury, . 115. Vice and Immorality, 116. Waste, . 117. Weights and Measures, 118. Widows, 119. Wills and Testaments, 120. Wrecks, 121. Act concerning Revised Code, 4G0 470 4 74 479 480 483 485 486 487 490 495 497 499 501 503 530 532 542 554 556 557 563 5G3 580 582 585 586 591 595 597 597 598 599 600 606 614 618 APPENDIX. Acts of Congees.9 prescribing the Mode of Proving the Laws, Records, &c., OF THE States, •••..... G23 Acts of Congress for the Naturalization op Foreigners, . . 625 Index, .... cqi MECKLENBIJUG DECLARATION OF INDEPENDENCE, ADOPTED ON THE TWENTIETH OF MAY, 1775. In the spring of 1775, the leading characters of Mecklen- burg county, North Carolina, stimulated by that enthusiastic patriotism which elevates the mind above considerations of individual aggrandizement, and scorning to shelter themselves from the impending storm by submission to lawless power, etc., etc., held several detached meetings, in each of which the individual sentiments were, " that the cause of Boston was the cause of all ; that their destinies were indissolubly con- nected with those of their Eastern fellow-citizens, — and that they must either submit to all the impositions which an un- principled, and to them an unrepresented, parliament might impose, — or support their brethren who were doomed to sus- tain the first shock of that power, which, if successful there, would ultimately overwhelm all in the common calamity." Conformably to these principles. Colonel T. Polk, through solicitation, issued an order to each captain's company in the county of Mecklenburg, (then comprising the present county of Cabarrus,) directing each militia company to elect two per- sons, and delegate to them ample power to devise ways and means to aid and assist their suffering brethren in Boston, and also generally to adopt measures to extricate themselves from the impending storm, and to secure unimpaired their inalien- able rights, privileges, and liberties, from the dominant grasp of British imposition and tyranny. In conformity to said order, on the 19th of May, 1775, the said delegation met in Charlotte, vested with unlimited powers; at which time official news, by express, arrived of the battle of Lexington on that day of the preceding month. 1 MECKLENBURG DECLARATION OF INDEPENDENCE. Every delegate felt the value and importance of the prize, and the awful and solemn crisis which had arrived, — every bosom swelled with indignation at the malice, inveteracy, and in- satiable revenge, developed in the late attack at Lexington. The universal sentiment was : let us not flatter ourselves that popular harangues, or resolves, that popular vapor, will avert the storm, or vanquish our common enemy, — let us deliberate, — let us calculate the issue, — the probable result; and then let us act with energy, as brethren leagued to preserve our property, — our lives, — and what is still more endearing, the liberties of America. Abraham Alexander was then elected chairman, and John M'Knitt Alexander, clerk. After free and full discussion of the various objects for which the dele- gation had been convened, the subjoined resolutions were offered. A number of by-laws were also added, merely to protect the association from confusion, and to regulate their general conduct as citizens. After sitting in the court house all night, neither sleepy, hungry, nor fatigued, and after discussing every paragraph, they were all passed, sanctioned, and decreed, mianimously, about two o'clock, a.m., May 20. In a few days, a deputation of said delegation convened, when Capt. James Jack, of Charlotte, was deputed as express to the con- gress at Philadelphia, with a copy of said resolves and pro- ceedings, together with a letter addressed to our three repre- sentatives there, namely, Richard Caswell, William Hooper, and Joseph Hewes, — under express injunction, personally, and through the State representation, to use all possible means to have said proceedings sanctioned and approved by the general congress. On the return of Captain Jack, the delegation learned that their proceedings were individually approved by the members of congress, but that it was deemed premature to lay them before the house. A joint letter from said three members of congress was also received, complimentary of the zeal in the common cause, and recommending perseverance, order, and energy. The subsequent harmony, unanimity, and exertion in the cause of liberty and independence, evidently resulting from these regulations, and the continued exertion of said delega- tion, apparently tranquillized this section of the State, and met with the concurrence and high approbation of the council of safety, who held their sessions at Newbw-n and Wilmington, MECKLENBURG DECLARATION OF INDEPENDENCE. alternately, and who confirmed the nominations and acts of the delegation in their official capacity. From this delegation originated the court of inquiry of this county, who constituted and held their first session in Char- lotte, — they then held their meetings regularly at Charlotte, at Col. James Harris's, and at Col. Phifer's, alternately, one week at each place. It was a civil court founded on military pro- cess. Before this judicature, all suspicious persons were made to appear, who were formally tried and banished, or continued under guard. Its jurisdiction was as unlimited as toryism, and its decrees as final as the confidence and patriotism of the county. Several were aiTcsted and brought before them fi-om Lincoln, Rowan, and the adjacent counties. DECLARATION. NAMES OP THE DELEGATES PRESENT. COL. THOMAS POLK, EPHRAIM BREVAKD, HEZEKIAH J. BALCH, JOHN PHIFEE, JAMES HARRIS, WILLIAM KENNON, JOHN FORD, RICHARD BARRY, HENRY DOWNS, EZRA ALEXANDER, WILLIAM GRAHAM, JOHN QUEARY, ABRAHAM ALEXANDER, JOHN M'KNITT ALEXANDER, HEZEKIAH ALEXANDER, ADAM ALEXANDER, CHARLES ALEXANDER, ZACHEUS WILSON, Sen. WAIGHTSTIL AVERY, BENJAMIN PATTON, MATTHEW M'CLURE, NEIL MORRISON, ROBERT IRWIN, JOHN FLENNIKEN, DAVID REESE, RICHARD HARRIS, Sen. Abraham Alexander was appointed chairman, and John M'Knitt Alexander, clerk. The following resolutions were offered, namely, 1. Resolved, That whosoever directly or indirectly abetted, or in any way, form, or manner, countenanced the unchartered and dangerous invasion of our rights, as claimed by Great Britain, is an enemy to this country, to America, and to the inherent and inalienable rights of man. 2. Resolved, That we, the citizens of Mecklenberg county, do hereby dissolve the political bands which have connected us to the mother country, and hereby absolve ourselves from all allegiance to the British crown, and abjure all political con- nection, contract, or association, with that nation, who have MECKLENBURG DECLARATION OF INDEPENDENCE. wantonly trampled on our rights and liberties, and inhumanly shed the blood of American patriots at Lexington. 3. Resolved, That we do hereby declare ourselves a free independent people, are, and of right ought to be, a sovereign and self-governing association, under the control of no power other than that of our God and the general government of the congress ; to the maintenance of which independence, we sol- emnly pledge to each other our mutual cooperation, our lives, oiir fortunes, and our most sacred honor. 4. Resolved, That as we now acknowledge the existence and control of no law or legal officer, civil or military, within this county, we do hereby ordain and adopt as a rule of life, all, each, and every of our former laws, — wherein, nevertheless, the crown of Great Britain never can be considered as hold- ing rights, privileges, immunities, or authority therein. 5. Resolved, That it is further decreed, that all, each, and every military officer in this county, is hereby reinstated in his former command and authority, he acting conformably to these regulations. And that every member present, of this delegation, shall henceforth be a civil officer, namely, a justice of the peace, in the character of a " committee-man,^^ to issue process, hear and determine all matters of controversy, accord- ing to said adopted laws, and to preserve peace, union, and harmony in said county ; and to use every exertion to spread the love of country and fire of freedom throughout America, until a more general and organized government be established in this province. After discussing the foregoing resolves, and arranging by- laws and regulations for the government of a standing com- mittee of public safety, who were selected from these dele- gates, the whole proceedings were unanimously adopted and signed. A select committee was then appointed to draw a more full and definite statement of grievances, and a more formal declaration of independence. The delegation then ad- journed about 2 o'clock, a.m.. May 20. NAMES OF DELEGATES STATE CONGRESS IN 1776. The following are the names of the delegates who attended the Congress, which met at Halifax, the 12th of November, ■ 1776, and which formed and adopted the Bill of Rights and Constitution of the State. The seats of those whose names are marked * were vacated by appointments to office. Those whose names are marked f obtained leave of absence from Congress, at various times, previous to the adoption of the Constitution. Those only whose names are not marked, were present when the Bill of Rights and Constitution finally passed. AssoN County. THOMAS WADE, DAVID LOVE, WM. PICKET.f Beaufort County. JOHN BARROW,t THOS. RESl'ESS, THOS. RESPESS, Jun., FRANCIS JONES, ROBERT TRIPP. Bertie County. WM. GRAY, NOAH HINTON, ZEDEKIAH STONE. Bladen County. THOS. ROBESON, THOS. OWEN, THOS. AMIS, JAS. COUNCIL. Brunswick County. CORNELIUS HARNETT, ARCH'D McLEAN, LEWIS DUPRE,t WM. LORD. Bute Coukty. JAS. DENTON, THOS. EATON, PHILEMON HAWKINS, BENJAMIN SEAWELL, BENJAMIN WARD. Carteret County. SOL'N SHEPPARD, BRICE WILLIAMS, JNO. EATON, THOS. CHADWICK. Chowan County. JAS. BLOUNT, THOS. BENBURY, THOS. JONES, LUKE SUMNER, JACOB HUNTER. Chatham County. AMBROSE RAMSEY, JNO. BIRDSONG, MIAL SCURLOCK, JOSIAH HOGAN. Craven County. WJI. BRYAN, JNO. BRYAN, CHRISTOPHER NEALL, JNO. TILGHMAN. CUSIBERLAND CoUNTY. ROBERT ROWAN, PHILIP ALSTON,t WM. RAND, ROBERT COBB. NAMES OF DELEGATES. Currituck Cousty. SAMUKL .lAKVlS,' J AS. warn-:. KKDAK MKRCHANT, HOLLOWKLL WILLIAMS, THOS. WILLIAMS. DoBBS County. EICHARD CASWELL, Snmx BRIGHT, AlUIAIIAM SHKl'PARD, KKXIAMIX KXUM, AXDREW BASS. Dui'LiN County. JAS. KENAN, THOMAS GRAY.t AVM. DICKSON, WM. TAYLOR, JAMES GILLESPIE. Edgcombe County. WM. HAYWOOD, ELISHA BATTLE, JONAS JOHNSTON, ISAAC SESSUMS, WM. HORN. Granville County. THOS. PERSON, ROBERT LEWIS, MEiMUCAN HUNT, JOHN OLIVER. Guilford County. DAVID CALDWELL, JOSEPH HINES, CHARLES BRUCE, RALPH GORRELL, ISHAM BROWDER. Halifax County. JOHN BBADFORD, JAMES HOGAN," EGBERT HAYWOOD, "WILLIS ALSTON, SAMUEL WELDON, BENJAMIN M'CULLOCH. Hertford County. LAWRENCE BAKER,t WM. MURFREE, ROBERT SUMNER, DAY RIDLEY, JAMES WRIGHT. Hyde County. JOSEPH HANCOCK, JOHN JORDAN, BEN.IAJllN PARMERLE, AMBROSE JONES. Johnston County. NEED'M BRYAN, ,Jun., JOHN STEVENS, HENRY RAINS, ALEXANDER AVERYT. Martin County. WM. WILLIAMS, THUS. HUNTER, JX(.). IIAHDISON, SAMUEL SMITHWICK. Mecklenburg County. ROBERT IRWIN, ZACHEUS WILSON, HEZEKIAH ALEXANDER,! WAIGHTSTIL AVERY. New-Hanover County. JOHN ASHE, SAMUEL ASHE, JOHN DEVANE, SAMPSON MOSELEY, JOHN HOLLINGSWORTH, Northampton County, ALLEN JONES, JAMES INGRAM,' THOS. PARKER, HOWELL EDMUNDS. Onslow County. JOHN SPICER, THOS. JOHNSTON, BENAJAH DOTY, EDWARD STARKEY, HENRY RHODES. Orange County. THOS. BURKE, NATHANIEL ROCHESTER, ALEXANDER MEBANE, JOHN BUTLER, JOHN McCABE. Pasquotank County. HENRY ABBOT, DEVOTION DAVIS, ISAAC GREGORY, DEMSEY BURGESS, LEMUEL SAWYER.t Perquimons County. BENJAMIN HARVEY, WII.KS IIAKX KV, THOMAS HARVEY, WJI. SKIXXEI!. Pitt County^. BENJAMIN JIAY, WM. ROBSON, JAMES GORHAM, GEORGE EVANS,' EDWARD SALTER. Rowan County. MATTHEW LOCK, GRIEEIIH RUTHERFORD, WiM. SHARPE, JAMES SMITH, JOHN BREVARD. Surry County. ROBERT LANIER, WM. HALL, CHARLES GORDON, JOSEPH WILLIAMS. TUYON ConNTY. JOSEPH HARDF.N, ROBERT ABERNATHY, WM. GRAHAM, WM. ALSTON, JOHN BARBER.t NAJIES OF DELEGATES. Tyrbell Countt. PETER WYNN,t JERE. FRAZIER, ISHAM WEBB, BENJ. BLOUNT. Wake County. TIGNAL JONES, JAMES JONES, MICHAEL ROGERS, JOHN RICE, BRITAIN FULLER.f Washington District, setiletnentj Towns of Bath, Brunswick, Cajipbelton, Edenton, Halifax, Newbern, Salisbury, CHAS. ROBESON, JOHN CARTER, JOHN HAILE, JOHN SEVIER. WM. BROWN, PARKER QUINCE, THOMAS HADLEY, JOSEPH HEWES, WILLIE JONES, ABNER NASH, DAVID NESBIT. DECLARATION OF RIGHTS, A Beclaralion of Rights made by the Representatives of the Freemen of the State of North Carolina. Power derived Sect. 1. That all political power is vested in and derived from the peo- . ^, , , pie. from the people only. Eight of Gov- Sect. 2. That the people of this State ought to have the peipie?' "" *^ sole and exclusive right of regulating the internal government and police thereof. None entitled Sect. 3. That no man or set of men are entitled to exclusive pHvUeges'Jete. or separate emoluments or privileges from the community, but in consideration of public services. Legislative and Sect. 4. That the legislative, executive, and supreme ju- bVkeptTep- '° dicial powers of government, ought to be forever separate and arate. distinct from each other. Suspension of Sect. 5. That all power of suspending laws, or the execu- aws 01 1 en. ^.^^ ^^ laws, by any authority, without consent of the repre- sentatives of the people, is injurious to their rights, and ought not to be exercised. Elections to be Sect. 6. That elections of members to serve as represent- atives in General Assembly, ought to be free. Bights of ar.- Sect. 7. That in all criminal prosecutions, every man has a naiprosecu-"'' right to be informed of the accusation against liim, and to '"'°'" confront the accusers and witnesses with other testimony, and shall not be compelled to give evidence against himself. Mode of prose- Sect. 8. That no frccman shall be ))ut to answer any crimi- scribed!"^ nal charge, but by indictment, presentment, or impeachment. Jury trial in Sect. 9. That no freeman shall be convicted of any crime, cutToiis! """^^'but by the unanimous verdict of a jury, of good and lawful men, in open court, as heretofore used. DECLARATION OF RIGHTS. W Sect. 10. That excessive bail should not be required, nor Kaii, fines, n ■ ^ , , . , . !in'l punish- excessive fines imposed, nor cruel nor unusual punishments m- ments, to be flicted. reasonable. Sect. 11. That general warrants, whereby any officer or General war- messenger may be commanded to search suspected places, lien.^ without evidence of the fact committed, or to seize any person or persons not named, whose offence is not particularly described and supported by evidence, are dangerous to liberty, and ought not to be granted. Sect. 12. That no freeman ought to be taken, imprisoned, ^°"^ ^^ '"^ ^^• J- • J r ! • <■ 1 1 1 1-, ■ . ., prived of liber- or disseized, oi his ireehold, liberties, or privileges, or outlawed ty or property, or exiled, or in any manner destroyed or deprived of his life, of tu/iaud. '™ liberty, or property, but by the law of the land. Sect. 13. That every freeman restrained of his liberty, is Habeas cor- entitled to a remedy to inquire into the lawfulness thereof, ''"^' and to remove the same if unlawful, and that such remedy ought not to be denied or delayed. Sect. 14. That in all controversies at law, respecting prop- Jut trial in 4. ,1 .. , .,.,,. . „r civil causes. erty, the ancient mode of trial by jury is one of the best securities of the rights of the people, and ought to remain sacred and inviolable. Sect. 15. That the freedom of the press is one of the great Freedom of the bulwarks of liberty, and, therefore, ought never to be re- restrained. strained. Sect. 16. That the people of this State ought not to be Taxes not to be ,j ji-j,,i ,. . . imposed but by taxed or made subject to the payment of any impost or duty General As- without the consent of themselves or their representatives in ^*^™ '''' General Assembly, freely given. Sect. 17. That the people have a right to bear arms for the H'giit to bear defence of the State; and, as standing armies in time of Standing ar- peace, are dangerous to liberty, they ought not to be kept up ; kept up' *° ^^ and that the military should be kept under strict subordination sSordLte to"" to, and governed by, the civil power. <=ivii. Sect. 18. That the people have a right to assemble too-ether, instruction, o ' rjo-lit of. to consult for their common good, to instruct their representa- ° tives, and to apply to the legislature, for redress of grievances. Sect. 19. That all men have a natural and unalienable right Keiig'ous ^or- to worship Almighty God according to the dictates of their ^ '"'' "° own consciences. Sect. 20. That for redress of grievances, and for amending Elections to be and strengthening the laws, elections ought to be often held. ""^'"'"'' 10 DECLARATION OF EIGHTS. Fumlamental Sect. 21. That a frequent recurrence to fundamental princi- principles to be ,.,,, , jiii* fi-ii often recurred ples IS absolutely necessary to preserve the biessmgs ot liberty. Hereditary Sect. 22. That no hereditary emoluments, privileges, or foAiddfn.' '"'■' honors, ought to be granted or conferred in this State. Perpetuities, Sect. 23. That perpetuities and monopolies are contrary to etc., forbidden. . ^ ^ J , i . . ^\ ^ n i the genuis of a free fetate, and ought not to be allowed. i^vs^forbidden ^^^1- 24. That retrospective laws, punishing facts commit- ted before the existence of such laws, and by them only declared criminal, are oppressive, unjust, and incompatible with liberty, wherefore, no ex post facto law ought to be made. Limits of tiie Sect. 25. The property of the soil in a free government, being one of the essential rights of the collective body of the people, it is necessary, in order to avoid future disputes, that the limits of the State should be ascertained with precision ; and as the former temporary line between North and South Carolina was confirmed and extended by commissioners appointed by the legislatures of the two States, agreeable to the order of the late King George the Second, in council, that line, and that only, should be esteemed the southern boundary of this State, as follows : that is to say, beginning on the sea-side, at a cedar stake, at or near the mouth of Little River, being the southern extremity of Brunswick county, and running from thence, a north-west course through the boundary house, which stands in thirty-three degrees fifty- six minutes, to thirty-five degrees north latitude; and from thence a west course, so far as is mentioned in the charter of King Charles the Second, to the late proprietors of Carolina. Therefore, all the territories, seas, water, and harbors, with their appurtenances, lying between the line above described, and the southern line of the State of Virginia, which begins on the sea-shore in thirty-six degrees thirty minutes north latitude, and from thence runs west, agreeable to said charter Territory held of ^ms Charles, are the right and property of the people of lu sovereignty. ° ' ^ . . j.- i i- this State, to be held by them ni sovereignty, any partial line without the consent of the legislature of this State, at any time thereafter directed or laid out, in anywise notwithstand- Savingthe ;„„_ Provided always, That this declaration of right sliall not riglits of In- " *' ' • ■ u dians. prejudge any nation or nations of Indians, from enjoying such hunting-grounds, as may have been, or hereafter shall be secured to them by any former or future legislature of this DECLARATION OF RIGHTS. 11 State. And provided also, That it shall not be construed so Other govem- as to prevent the establishment of one or more governments established^ westward of this State, by consent of the legislature. And ^^''' provided further, That nothing herein contained, shall affect the titles or possessions of individuals, holding or claiming, Present titles under the laws heretofore in force, or grants heretofore made by the late King George the Third, or his predecessors, or the late lords proprietors, or any of them. December the seventeenth day, Anno Dom. one ) thousand seven hundred and seventy-six, read > R, CAS^'^ELL, PveS. the third time and ratitied in open Congress. J James Gkeen, Jun., Secretary. NOTE. Sect. 7. 11 Ire. 51.3; 7 lb. 22.5. Sect. 12. § 76, c. 107, of tlie Revised Code, is not prohiljited by the Declaration of Rights or the Constitution, State v. Manuel, 4 D. & B. 20. The legislature cannot take away a vested right, Hoke v. Henderson, i Dev. 1; see also 13 Ire. 75; University v. Foy, 1 Mur. 58; Same v. Maultsby, 8 Ire. Eq. 257; 1 Ire. 414; nor suspend the collection of debts, 1 Car. L. R. 385; but it may consolidate otSces, 10 Ire. 377, or alter remedies, 1 Mur. 500; 10 Ire. 543. It may pass laws regulating the exercise of rights for the benefit of society, 4 D. & B. 319; 2 lb. 555; 2 Ire. 66. Sect. 14. 2 Jones, 66; 2 D. & B. 451; 3 Dev. 478; 2 Hawks, 204; 3 lb. 590; N. C. T. R. 158. Sect. 23. 2 Jones, 66; 2D. & B. 451; 2 Hawks, 10; 1 lb. 96; 2 Mur. 266. Sect. 24. 1 Hawks, 384; 3 Mur. 327. CONSTITUTION OF NORTH CAROLINA. The Constitution or Form of Government, agreed to and re- solved upon by the Representatives of the Freemen of the State of North Carolina, elected and chosen for that particu- lar purpose, in Congress assembled, at Halifax, the eighteenth day of December, in the year of our Lord, one thousand seven hundred and seventy-six. Allegiance and 'WiiEREAS allesfiance and protection are in their nature re- protection be- ^ ^ lus reciprocal, ciprocal, and the one should of right be refused when the other is withdrawn. And whereas George the Third, King of and Great Great Britain, and late sovereign of the British American Britain having ,.,, , ■ , ■, r n i- ..• withdrawn her colonies hath not Only withdrawn irom them his protection, waged war'^on but by an act of the British legislature declared the inhabi- the^colonies, ^^^^^ ^^ ^j^^g^ States out of the protection of the British crown, and all their property found upon the high seas liable to be seized and confiscated to the uses mentioned in the said act. And the said George the Third has also sent fleets and armies to prosecute a cruel war against them, for the purpose of reducing the inhabitants of the said colonies to a state of abject slavery. In consequence whereof all government under the said king within the said colonies, hath ceased, and a total dissolution of government in many of them hath taken place. And whereas the continental congress having considered the they are ab- premises, and other previous violations of the rights of the letiauce."™ "^" good people of America, have therefore declared that the Thirteen United Colonies are, of right, wholly absolved from all allegiance to the British crown, or any other foreign juris- diction whatsoever, and that the said colonies now are and forever shall be, free and independent States : Wherefore, in STATE CONSTITUTION. 13 our present state, in order to prevent anarchy and confusion, it Wiicrcfore becomes necessary that a government should be established anarehy"the in this State : Therefore, We, the representatives of the free- NoXcrroiina men of North Carolina, chosen and assembled in congi-ess for °t^iJt"oil °°°" the express purpose of framing a constitution, under the au- thority of the people, most conducive to their happiness and prosperity, do declare that a government for this State shall be established in manner and form following, to wit : Sect. 1. That the legislative authority shall be vested in two Legislative au- distinct branches, both dependent on the people, to wit : a inTw^ ^"^''^'^ senate and house of commons. branches. Sect. 2. That the senate shall be composed of representa- Senate. tives [^annually'] chosen by ballot, one from each [^couniij'] in this State.* Sect. 3. That the bouse of commons shall be composed of House of com- representatives [annua/li/'] chosen by ballot, [too for each "'°"^' count!/, and one for each of the towns of Edenton, Newbern, Wilmington, Salisbury, Hillsborough, and Halifax.'] Sect. 4. That the senate and house of commons, assembled ^™«" <=°"- for the purpose of legislation, shall be denominated the General nated 'thrc™- Assembly. eral Assembly. Sect. 5. That each member of the senate shall have usually Qaaiificiition resided in the [county] in which he is chosen, for one year im- of Ste"^ mediately preceding his election ; and for the same time shall have possessed, and continue to possess, in the [comity] which he represents, not less than three hundred acres of land in fee. Sect. 6. That each member of the house of commons shall of members of have usually resided in the county in which he is chosen, for mons. one year immediately preceding bis election, and for six months shall have possessed, and continue to possess, in the county which he represents, not less than one hundred acres of land in fee, or for the term of his own life. Sect. 7. That all [freemen] of the age of twentv-one vears. Of voters for ,, , .... „ " •' J' senators. Who have been inhabitants of any one [county] within the State twelve months immediately preceding the day of any election, and possessed of a freehold within the same [county,] of fifty acres of land for six months next before and at the day of election, shall be entitled to vote for a member of the senate. • Those sections of the constitntion in which material amendments have been made are printed in italics between brackets. 14 STATE CONSTITUTION. Of members of Sect. 8. That all \_frecmen'] of the age of twenty-one years, mons. who have been inhabitants of any [^coini/i/'j witiiin this State twelve months immediately preceding the day of any election, and shall have paid public taxes, shall be entitled to vote for members of the house of commons for the county in which he resides. Of voters for [Sect. 9. T/uit all persoiis possessed of a freehold in any nicmljers from ■ , • ci i • • i r Towns. toion in tins Nale, having a rigid of representation, and also all freemen ivho have been inhabitants of antj such town twelve months next before and at the day of election, and shall have paid public taxes, shall be entitled to vote for a member to rep- resent such town in the house of commons. Provided always, That this section shall not entitle any inhabitant of such totcn to vote for members of the house of commons for the county in which he may reside, nor any freeholder in such county, ivho resides tvithout or beyond the limits of such toivn, to vote for a member for said town.'\ Each House to Sect. 10. That the senate and house of commons when choose Its offi- cers; met, shall each have power to choose a speaker and other qualifications theii" officers, be judges of the qualifications and elections of adjou'rnr'pre-' their members, sit upon their own adjournments from day to Fssife write of *^^y' ^"*^ prepare bills to be passed into laws. The two election; houses shall direct writs of elections for supplving intcrmc- jonitly to ad- . . i i , o journ, when, diate vacancies, and shall also jointly, by ballot, adjourn them- selves to any future day and place. Bills to be read Sect. 11. That all bills shall be read three times in each each House house before they pass into laws, and be signed by the speaker and signed by c \ iu i the speaker. of both hoUSes. Members and Sect. 12. That cvery person who shall be chosen a member oatii of oiHce of the senate or house of commons, or appointed to any otlice State" ' ** o"" place of trust, before taking his scat or entering u))on the execution of his office, shall take an oath to the State ; and all officers shall also take an oath of office. .Tuiiins .ap- Sect. 13. That the General Assembly shall, by joint ballot 'oencrai Is- of both houses, appoint judges of tlie supreme courts of law commif'sr<"ied ^""^ equity, judges of admiralty, \_and attorney-general,'] who bv (invcrnor yhall be commissioned by the governor, and hold their offices ouniig good ■' D ' beliavior. during good behavior. General As- [Sect. 14. That the senate and house of commons shall have pohit officc'rsof poller to appoint the generals and field-ofpcers of the militia, miiitia. ^i^^^^i ^^ji Qjjic^fg of the regular army of this State.] Two Houses Sect. 15. [T//«/ the senate and house of commons jointly, at jointly to elect Governor. STATE CONSTITUTION. ' 15 their first mpeting after each annual eletiion, shall bij ballot elect a governor for one year, ivho shall not be eligible to that office longer than three years in six successive years ;] That no per- His quaiifica- soii under thirty years of age, and who has not been a resident ''°"^' in this State above five years, and having in the State a free- hold in lands and tenements above the value of one thousand pounds, shall be eligible as governor. Sect. 16. That the senate and house of commons jointly, siiali elect sev- at Iheir first meeting after each [cmnual] election, shall by bal- comlseiioS of lot elect seven persons to be a council of State for [one year], ^^^'^' who shall advise the governor in the execution of his office ; and that four members shall be a quorum ; their advice and Their duty. proceedings shall be entered in a journal to be kept for that To keep n jour- purpose only, and signed by the members present ; to any ceediugr' '""' part of which any member present may enter his dissent ; and such journal shall be laid before the General Assembly when called for by them. Sect. 17. That there shall be a seal of this State, which Greatseaitobe shall be kept by the governor, and used by him as occasion erifor amfaffix- may require, and shall be called the great seal of the State anfrcmnmis- of North Carolina, and be affixed to all grants and commis- ^'''"^' ^'"^• sions. ^ Sect. 18. That the governor for the time being, shall be Governor to be captain-general and commander-in-chief of the militia ; and in cWeroTmu'i't'ia. the recess of the General Assembly, shall have power, by and with the advice of the council of State, to embody the militia for the public safety. Sect. 19. That the governor for the time being, shall have His powers and power to draw for and apply such sums of money as shall be voted by the General Assembly for the contingencies of gov- ernment, and be accountable to them for the same ; he also may, by and with the advice of the council of State, lay em- bargoes, or prohibit the exportation of any commodity, for any term, not exceeding thirty days at any one time, in the recess of the General Assembly, and shall have the power of granting pardons and reprieves, except where the prosecution shall be carried on by the General Assembly, or the law shall otherwise direct; in which case, he may, in the recess, grant a reprieve until the next sitting of the General Assembly; and may exercise all the other executive powers of government, limited and restrained as by this constitution is mentioned, and according to the laws of the State ; and on his death. 16 STATE CONSTITUTION. Ill case of va- inability, or absence from the State, the speaker of the senate caiicy, who to "^ i- i • i i • fill tlie office, for the time being, and in case of his death, inability, or ab- sence from the State, the speaker of the house of commons shall exercise the powers of the governor, after such death, or during such absence or inability of the governor, or speaker of the senate, [or nalil a neiv nomination is made by the General Assemblij.'] Vacancies, Sect. 20. That in every case where any otFicer, the right of General As- of whose appointment is, by this constitution, vested in the officeiCfined bv General Assembly, shall, during their recess, die, or his office Ii*i'*^,';'°''>'' '° by other means become vacant, the governor shall have power, be filled by -' . . governor and with the advice of the council of State, to lill up such vacancy council. . . . 1 • 1 1 1 1 • by granting a temporary commission, which shall expire at the end of the next session of the General Assembly. Governor, Sect. 21. That the governor, judges of the supreme courts torney-generai, of law and equity, judges of admiralty, and attorney-general, ries."^" ^^^' shall have adequate salaries during their continuance in office. Treasurer ap- Sbct. 22. That the General Assembly .shall, by joint ballot General id- of both houses, [flWMJ/a////] appoint a treasurer or treasurers for sembly. ^jjjg gtj^j.g_ Governor and Sect. 23. That the governor and other officers oflfending other officers . " /• , • . • impeachable or against the State, by Violating any part of this constitution, corruption, etc. maladministration, or corruption, may be prosecuted on the impeachment of the General Assembly, or presentment of the grand-jury of any court of supreme jurisdiction in this State. Secretary of Sect. 24. That the General Assembly shall, by joint ballot state appoint- -' ^ j j ed by General of both houses, [iriennialli/l appoint a secretary for this State. AssetnblV' j i i •■ Defaulting re- Sect. 25. That no persons who heretofore have been or lie money in el- hereafter may be, receivers of the public moneys, shall have a erai' Assembly. ®^^* i" either house of General Assembly, or be eligible to any office in this State, until such person shall have fully ac- counted for and paid into the treasury, all sums for which they may be accountable and liable. Public ticas- Sect. 26. That no treasurer shall have a scat in cither the or in default' sciiatc, housc of commoiis, or council of State, during his con- Gen'laiAs- tinuance in that office, or before he shall have finally settled sembly. j^jg accounts with the public, for all moneys which may be in his hands, at the expiration of his office, belonging to the State, and hath )iaid the same into the hands of the succeed- ing treasurer. Officers of ar- Sect. 27. That no officer in the regular army or navy, in the Uiiitcd States, scrvlce and pay of the United States, of this or any other STATE CONSTITUTION. 17 State, or any contractor or agent for supplying such army or iiml nscnt^! to navy with clothing or provisions, shall have a seat in either the army'or imvy, senate, house of commons, or council of State, or be eligible Merifber^, etc., thereto ; and any member of the senate, house of commons, or p^acrs't'fva-"^" council of State, being appointed to and accepting of such cate their sen's, office, shall thereby vacate his seat. Sect. 28. That no member of the council of State shall have Counsellor of a seat either in the senate or house of commons. bie. ° Sect. 29. That no judge of the supreme court of law or Judges ineiigi- equity, or judge of admiralty, shall have a seat in the senate, the' council, house of commons, or council of State. Sect. 30. That no secretary of this State, attorney-general, Sec. of state, or clerk of any court of record, shall have a seat in the senate, clerks'of courts V r •! c cii i inelieihle, nor house ot commons, or council of State. to be of the Sect. 31. That no clergyman, or preacher of the gospel, of c°e,"|j'.men, ex- any denomination, shall be capable of being a member of f ■<='*'"" ?■>.«- ^ *' ' ^ toral functions either the senate, house of commons, or council of State, while inel gibie, nor 1 ,- • i.1 • r 1 I .- • to be of the he contmues in the exercise of the pastoral function. council. Sect. 32. That no person who shall deny the being of God, Atheists, infi- ' •' " dels, and per- or the truth of the \_Protest.ant] religion, or the divine author- sons with reiig- ity either of the Old or New Testament, or who shall hold dangerous' to'^° religious principles, incompatible with the freedom and safety fij® stat'e°'etts of the State, shall be capable of holding any office or place of ^gjJ^'^^^'J. ''''°"' trust or profit in the civil department, within this State. Sect. 33. That the justices of the peace, within the respec- Justices of the , r peace — tive counties in this State, shall in future be recommended mode of .ap- to the governor for the time being by the representatives in To hold office General Assembly, and the governor shall commission them behavior?" accordingly : And the justices, when so commissioned, shall hold their offices during good behavior, and shall not be removed from office by the General Assembly unless for mis- behavior, absence, or inability. Sect. 34. That there shall be no establishment of any one No religious religious church or denomination in this State in preference to ° ' ° any other ; neither shall any person, on any pretence whatso- ever, be compelled to attend any place of worship, contrary to his own faith or judgment ; nor be obliged to pay for the pur- chase of any glebe, or the building of any house of worship, or for the maintenance of any minister or ministry, conti-ary to what he believes right, or has voluntarily and personally en- gaged to perform ; but all persons shall be at liberty to exer- ah may u«e cise their own mode of worship: Provided, that nothing of'^'o^rshi™'"'* 2* 18 STATE CONSTITDTION. herein contained shall be construed to exempt preachers of treasonable or seditious discourses from legal trial and punish- ment. Lucrative Sect. 35. That no person in the State shall hold more than to^briieiTat'"' O"^ lucrative ofiice at any one time. Provided, That no ap- timebyone pointment in the militia or to the office of a iustice of the person. ^ _ ■' peace, shall be considered as a lucrative ofiice. Commissions, Sect. 36. That all commissions and grants shall run in the write^'to run in name of the State of North Carolina, and bear test and be srt'"of''N rU signed by the governor. All writs shall run in the same man- Carolina; jjej., and bear test and be signed by the clerks of the respective how signed. ' . • i courts; indictments shall conclude, against the peace and dignity of the State. Delegates to Sect. 37. That the delegates for this State to the conti- Cougress.'^^ nental congress, while necessary, shall be chosen annually by the General Assembly, by ballot, but may be superseded in the mean time, in the same manner; and no person shall be elected to serve in that capacity for more than three years suc- cessively. Sheriff, coro- Sect. 38. That ther.e shall be a sheriff, coroner or coroners, "tables foreach ^^^ constables, in each county within this State. L"p™to'r'not to Sect. 39. That the person of a debtor, where there is not a i.e imprisoned strong presuniptioD of fraud, shall uot be continued in prison unless, etc. " ' ' in,. I'risoners bail- after delivering up, bona Jide, all his estate, real and personal, etc' ' for the use of his creditors, in such manner as shall be here- after regulated by law. All prisoners shall be bailable by suf- ficient sureties, unless for capital offences, when the proof is evident, or presumption great. Foreigners set- Sect. 40. That every foreigner, who comes to settle in this in"^iie"oath of State, having first taken an oath of allegiance to the same, h'w i"'T '"'^ "^^y purchase, or by other just means acquire, hold, and trans- fer land or other real estate ; and after one year's residence, shall be deemed a free citizen. Cheap schools Sect. 41. That a school or schools shall be established by irshoVand'one ^^e legislature for the convenient instruction of youth, with ormoreuni- g^^jj salaries to the iTiasters, paid by the public, as may enable versities. ' ' ■' ' . them to instruct at low prices; and all useful learning shall be duly encouraged and promoted in one or more universities. Purchase of Sect. 43. That no purchase of lands shall be made of the Indian natives, but on behalf of the public, by authority of the General Assembly. Entails in per- Sect. 43. That the future legislature of this State shall petuity, forbid- den. lands from In- dians, pro- hibited. STATE CONSTITUTION. 19 regulate entails in such a manner as to prevent perpetui- ties. Sect. 44. That the declaration of rights is hereby declared Declaration of to be part of the constitution of this State, and ought never of tiie cousUtu- to be violated on any pretence whatever. Sect. 45. That any member of either house of the General Members of A 111111 iM T f General As- Assembly shall have liberty to dissent from, and protest sembiy may against any act or resolve which he may think injurious to record. ° the public or any individual, and have the reasons of his dis- sent entered on the journals. Sect. 46. That neither house of the General Assembly shall ^'either house . •'to transact proceed upon pubhc business, unless a majority of all the business with members of such house are actually present; and that upon a jority of ail tiie motion made and seconded, the yeas and nays upon any ques- veS'a'nd navs tion shall be taken and entered on the journals; and that the "'">!''', '•'^- J ' manded, on a journals of the proceedings of both houses of the General second. , 111111-11 Journals to be Assembly, shall be printed and made public, immediately after printed. their adjournment. This constitution is not intended to preclude the present congress from making a temporary provision for the well ordering of this State, until the General Assembly shall establish government agreeable to the mode herein before pre- scribed. December the eighteenth, one thousand seven ) liundred and sevjiuty-six, read the third time [• R. CASWELL, PreS. and ratified in open congress. I Jaimes Gheen, Jun., Secretary. Amendments proposed by a Convention of Delegates of the Peo- ple of North Carolina on the eleventh of July, 1835, and rati- fied by the People on the second Monday of November, in the same year. Whereas the General Assembly of North Carolina, by an Preamble re- act, passed the sixth day of January, one thousand eight hun- d'm'kv'hy""' dred and thirty-five, entitled " An Act concerning a convention "e'li'tio,! was™ to amend the constitution of the State," and by an act, sup- r,-'"'"""'""'^" , ' J T f tlic constitu- plcmental thereto, passed on the eighth day of January, one ''«"• thousand eight hundred and thirty-five, did dhect that polls ^^ STATE CONSTITUTION. should be opened in every election precinct throughout the State, for the purpose of ascertaining whether it was the will of the freemen of North Carolina that there should be a con- vention of delegates, to consider of certain amendments pro- posed to be made in the constitution of said State ; and did further direct, that if a majority of all the votes polled by the freemen of North Carolina should be in favor of holding such convention, the governor should, by proclamation, announce the fact, and thereupon the freemen aforesaid should elect delegates to meet in convention at the city of Raleigh, on the first Thursday in June, one thousand eight hundred and thirty- five, to consider of the said amendments : And whereas a ma- jority of the freemen of North Carolina did, by their votes at the polls so opened, declare their will that a convention should be had to consider of the amendments proposed, and the gov- ernor did, by proclamation, announce the fact that their will had been so declared, and an election for delegates to meet in Assembiert convention as aforesaid was accordingly had: Now, therefore, first Ihursclay ° •' ' of June, 1835: ^ve, the delegates of the good people of North Carolina, hav- Adjounied ° ° '^'. /--ni-i inx eie'veatii July, ing assembled in convention at the city of Kaleigh, on the nrst Thursday in June, one thousand eight hundred and thirty-five, and having continued in session from day to day, until the eleventh of July, one thousand eight hundred and thirty-five, for the more deliberate consideration of said amendments, do now submit to the determination of all the qualified voters of the State, the following amendments in the constitution there- of, that is to say: — ARTICLE I. Senate to con- CLAUSE 1. The senate of this State shall consist of fifty menihers; representatives, biennially chosen by ballot, and to be elected elected Kv dis- by districts ; which districts shall be laid ofl' by the General to/ off"every Assembly, at its first session after the year one thousand eight twenty years jjundred and fortv-one ; and afterwards, at its first session after on the basis of j ' ' public taxation, the year one thousand eight hundred and fifty-one ; and then every twenty years thereafter, in proportion to the public taxes paid into the treasury of the State by the citizens thereof; and the average of the public taxes paid by each county into the treasury of the State, for the five years preceding the laying STATE CONSTITUTION. 21 off of the districts, shall be considered as its proportion of the public taxes, and constitute the basis of apportionment: Pro- No county to vided. That no county shall be divided in the formation of a ' senatorial district. And when there are one or more counties, having an excess of taxation above the ratio to form a sena- torial district, adjoining a county or counties deficient in such ratio, the excess or excesses aforesaid shall be added to the taxation of the county or counties deficient; and if, with such addition, the county or counties receiving it shall have the requisite ratio, such county and counties each shall constitute a senatorial district. Cl. 2. The house of commons shall be composed of one House cf com- hundred and twenty representatives, biennially chosen by bal- of one hundred lot, to be elected by counties according to their federal popula- memb™"'^ tion, that is, according to their respective numbers, which shall Wenniaiiy . _ ' ° '^ ' elected by be determined by adding to the whole number of free persons, counties, on • 1 J- 1 , , . ^ <. 'the basis of includmg those bound to service for a term of years, and federal popula- excluding Indians not taxed, three fifths of all other persons ; and each county shall have at least one member in the house of commons, although it may not contain the requisite ratio of population. Cl. 3. This appointment shall be made by the General Apportionment Assembly, at the respective times and periods when the dis- when made', tricts for the senate are hereinbefore directed to be laid off; and the said apportionment shall be made according to an enumeration to be ordered by the General Assembly, or according to the census which may be taken by order of con- gress, next preceding the period of making such apportion- ment. Cl. 4. In making the apportionment in the house of com- Ratio of repre mons, the ratio of representation shall be ascertained by How .as"" dividing the amount of federal population of the State, after ''""^'i- deducting that comprehended within those counties which do not severally contain the one hundred and twentieth part of the entire federal population aforesaid, by the number of repre- sentatives less than the number assigned to the said counties. To each county containing the said ratio, and not twice the said ratio, there shall be assigned one representative ; to each county containing twice, but not three times the said ratio, there shall be assigned two representatives, and so on progres- sively, and then the remaining representatives shall be assigned severally to the counties having the largest fractions. ■ ascer- 22 STATE CONSTITUTION. SECTION II. How senate to Cl. 1. Until the first session of the General Assembly which untTfireTW shall be had after the year eighteen hundred and forty-one, the sion after 1841. gg^g^^g shall be composed of members to be elected from the several districts hereinafter named, that is to say, the 1st dis- trict shall consist of the counties of Perquimons and Pas- quotank ; the 2d district, of Camden and Currituck ; the 3d district, of Gates and Chowan ; the 4th district, Washington and Tyrrell; the 5th district, Northampton; the 6th district, Hertford; the 7th district, Bertie; the 8th district, Martin; the 9th district, Halifax; the 10th district, Nash; the 11th district, Wake; the 12th district, Franklin; the 13th district, Johnson ; the 14th district, Warren ; the 15th district, Edg- ccmbe ; the 16th district, Wayne ; the 17th district, Greene and Lenoir; the 18th district, Pitt; the 19th district, Beaufort and Hyde ; the 20th district, Carteret and Jones ; the 21st district, Craven; the 22d district, Chatham; the 23d district, Gran- ville ; the 24th district, Person ; the 25th district, Cumberland ; the 26th district, Sampson; the 27th district. New Hanover; the 28th district, Duplin ; the 29th district, Onslow ; the 30th district, Brunswick, Bladen, and Columbus ; the 31st district, Robeson and Richmond; the 32d district, Anson; the 33d district, Cabarrus ; the 34th district, Moore and Montgomery ; the 35th district, Caswell; the 36th district, Rockingham; the 37th district, Orange; the 38th district, Randolph; the 39th district, Guilford; the 40th district, Stokes; the 41st district, Rowan ; the 42d district, Davidson ; the 43d district, Surry ; the 44th district, Wilkes and Ashe ; the 45th district, Burke and Yancy; the 46th district, Lincoln; the 47th district, Iredell ; the 48th district, Rutherford ; the 49th district. Bun- combe, Haywood, and Macon ; and the 50th district, Mecklen- burg ; each district to be entitled to one senator. How house of Cl. 2. Until the first session of the General Assembly after composed tui ^ the year eighteen hundred and forty-one, the house of com- then. mons shall be composed of members elected from the coun- ties in the following manner, viz. : The counties of Lincoln ■&nd Orange shall elect four members each. Tiie counties of Burke, Chatham, Granville, Guilford, Halifax, Iredell, Meck- lenburg, Rowan, Rutherford, Surry, Stokes, and Wake shall elect three members each. The counties of Anson, Beaufort, STATE CONSTITUTION. 23 Bertie, Buncombe, Cumberland, Craven, Caswell, Davidson, Duplin, Edgcombe, Franklin, Johnston, Montgomery, New- Hanover, Northampton, Person, Pitt, Randolph, Robeson, Richmond, Rockingham, Sampson, Warren, Wayne, and Wilkes shall elect two members each. The counties of Ashe, Bladen, Brunswick, Camden, Columbus, Chowan, Currituck, Carteret, Cabarrus, Gates, Greene, Haywood, Hertford, Hyde, Jones, Lenoir, Macon, Moore, Martin, Nash, Onslow, Pasquo- tank, Perquimons, Tyrrell, Washington, and Yancy shall elect one member each. SECTION III. Cl. 1. Each member of the senate shall have usually re- QiifUfieation sided in the district for which he is chosen for one year imme- diately preceding his election, and for the same time shall have possessed and continue to possess in the district which he represents not less than three hundred acres of land in fee. Cl. 2. All free men of the age of twenty-one years, (except Of voters for as is hereinafter declared,) who have been inhabitants of any one district within the State twelve months immediately pre- ceding the day of any election, and possessed of a freehold within the same district of fifty acres of land for six months next before and at the day of election, shall be entitled to vote for a member of the senate. Cl. 3. No free negro, free mulatto, or free person of mixed Free persons of blood, descended from negro ancestors to the fourth genera- vote7n- dera- tion inclusive, (though one ancestor of each generation may house!' "'"''" have been a white person,) shall vote for members of the sen- ate or house of commons. SECTION IV. Cl. 1. In the election of all officers whose appointment is In elections of conferred on the General Assembly by the constitution, the eraiTssombry vote shall be viva voce. '° ■'■°'® "'"" voce. Cl. 2. The General Assembly shall have power to pass Mm- regulate laws regulaling the mode of appointing and removing militia 'mi^Svai'Sf oificers. militia officers. Cl. 3. The General Assembly shall have power to pass Jiny pass laws general laws regulating divorce and alimony, but shall not slnlii'Mlt g™"' have power to grant a divorce or secure alimony in any indi- '"™''-''-''' ''''=• vidual case. \ 24 STATE CONSTITUTION. Shall not alter Cl. 4. The General Assembly shall not have power to pass gitSe°bas-" any private law, to alter the name of any person, or to legiti- may 'p.^slau"' mate any persons not born in lawful wedlock, or to restore to for the pur- ^[^g rights of citizenship any person convicted of an infamous crime ; but shall have power to pass general laws regulating the same. Nor pass pri- Cl. 5. The General Assembly shall not pass any private onnotTce'of" law, unless it shall be made to appear that thirty days' notice thirty days. ^^ apjillcation to pass such law shall have been given, under such directions and in such manner as shall be provided by law. Tacancies in Cl. 6. If vacancies shall occur by death, resignation, or Eemm'ing Otherwise, before the meeting of the General Assembly, writs how fiuTd.'^' may be issued by the governor, under such regulations as may be prescribed by law. Sessions bien- Cl. 7. The General Assembly shall meet biennially, and secretory of" ° at each biennial session shall elect, by joint vote of the two ui-er/anr'" houscs, a secretary of State, treasurer, and council of State, council. ^jjQ gj^^^ continue in office for the term of two years. ARTICLE II. Governor, how Clacse 1. The governor shall be chosen by the qualified voters for the members of the house of commons, at such time and places as members of the General Assembly are elected. Term of office; Cl. 2. He shall hold his office for the term of two years wjnineigi- ^^^^ ^^^ ^.^^^^ ^^ ^^.^ installation, and until another shall be elected and qualified ; but he shall not be eligible more than four years in any term of six years. Ketanisofhis c^. 3. l"he returns of every election for governor shall be m?adero'pencd, sealed up and transmitted to the seat of government, by the andpubhshed. j.g^^^j.,^i,jg officers, directed to the speaker of the senate, who shall open and publish them in the presence of a majority of the members of both houses of the General Assembly. The How elected m person having the highest number of votes, shall be governor; vSe between but if two or more shall be equal and highest in vt^fes, one of '^^°' them shall be chosen governor by joint vote of butii houses of the General Assembly. Elections con- Qj^ 4_ Contested elections for governor shall be determined tested, how de , , ^ i » i i • i. tcrinined. by both houses of the General Assembly, m such manner as shall be prescribed by law. STATE CONSTITUTION. 25 Cl. 5. The governor elect shall enter on the duties of the To enter on office on the first day of January next after his election, having day^of jlnul previously taken the oaths of office in presence of the members 7; ^"V''^ *''?' -,,,,, r 1 ^ " taken the oaths ot both branches of the General Assembly, or before the chief »''°ffi'=e. justice of the supreme court, who, in case the governor elect should be prevented from attendance before the General As- sembly, by sickness or other unavoidable cause, is authorized to administer the same. ARTICLE III. SECTION I. Clause 1. The governor, judges of the supreme court, and Governor and judges of the superior courts, and all other officers of this State, maybf ?m- (except justices of the peace and militia officers,) may be im- P^"'=''«<1- peached for wilfully violating any article of the constitution, maladministration, or corruption. Cl. 2. Judgment, in cases of impeachment, shall not extend How punished further than to removal from office and disqualification to hold ™<=°°"''"°°- and enjoy any office of honor, trust, or profit under this State ; but the party convicted may, nevertheless, be liable to indict- ment, trial, judgment, and punishment according to law. Cl. 3. The house of commons shall have the sole power of House of com- impeachment. The senate shall have the sole power to try "each- 'and the all impeachments; no person shall be convicted upon any t^^"""''*'''^ impeachment, unless two-thirds of the senators present shall concur in such conviction ; and before the trial of any im- peachment, the members of the senate shall take an oath or Mode of trial. affirmation truly and impartially to try and determine the charge in question according to evidence. SECTION IL Cl. 1. Any judge of the supreme court, or of the superior Jt^iges may be courts, may be removed from office for mental or physical Gm.erd' As^- inability, upon a concurrent resolution of two thirds of both m"m'';i o? branches of the General Assembly. The judge, against whom {^^"^ '""■ the legislature may be about to proceed, shall receive notice thereof, accompanied by a copy of the causes alleged for his removal, at least twenty days before the day on which either branch of the General Assembly shall act thereon. 3 26 STATE CONSTITUTION. Their salaries Cl. 2. The salaries of the judges of the supreme court, or minilhed'; '''' of the superior courts, shall not be diminished during their while in office, continuance in office. SECTION III. Office of jus- Upon the conviction of any justice of the peace, of any in- vacated on famous crime, or of corruption and malpractice in office, the fXmous" °^ commission of such justice shall be thereby vacated, and he rupuVhi^of- shall be forever disqualified from holding such appointment. fice, etc. SECTION IV. Attorney-Gen- The General Assembly at its first session after the year one elected for four thousand eight hundred and thirty-nine, and from time to time commissioned thereafter, shall appoint an attorney-general, who shall be by governor, commissioned by the governor, and shall hold his office for the term of four years ; but if the General Assembly should here- after extend the term during which solicitors of the State shall hold their offices, then they shall have power to extend the term of office of the attorney-general to the same period. ARTICLE IV. Convention of CLAUSE 1. No convention of. the people shall be called by hoVcaii'ed. the General Assembly, unless by the concurrence of two thirds of all the members of each house of the General Assembly. Constitution, Cl. 2. No part of the constitution of this State shall be altered, unless a bill to alter the same shall have been read three times in each house of the General Assembly, and agreed to by three fifths of the whole number of members of each house respectively ; nor shall any alteration take place until the bill so agreed to shall have been published six months pre- vious to a new election of members to the General Assembly. aXTaiA?''^ ^f' after such publication, the alteration proposed by the pre- sembiy. ceding General Assembly, shall be agreed to in the first session thereafter by two thirds of the whole representation in each house of the General Assembly, after the same shall have been read three times on three several days in each house, then the said General Assembly shall prescribe a mode by which the STATE CONSTITUTION. 27 amendment or amendments may be submitted to the quali- fied voters of the house of commons throughout the State • and if, upon comparing the votes given in the whole State, it How ratifie.i shall appear that a majority of the voters have approved ""^ '''*' P'"''''''- thereof, then, and not otherwise, the same shall become a part of the constitution. SECTION 11. The thirty-second section of the constitution shall be amend- Religious test ed to read as follows : No person who shall deny the being of ^°' °^''^' God, or the truth of the Christian religion, or the divine au- thority of the Old or New Testament, or who shall hold relig- ious principles incompatible with the freedom or safety of the State, shall be capable of holding any office or place of trust or profit in the civil department within this State. SECTION III. Cl. 1. Capitation tax shall be equal throughout the State Capitation tax upon all individuals subject to the same. ^ '"' *'*='"'''■ Cl. 2. All free males over the age of twenty-one years, and Free males under the age of forty-five years, and all slaves over the age of "ilves^ bet"^een twelve years, and under the age of fifty years, shall be subject o? age,""ubject to capitation tax, and no other person shall be subject to such to'i"«h tax'' tax ; provided that nothing herein contained shall prevent ex- emptions of taxable polls as heretofore prescribed by law in cases of bodily infirmity. SECTION IV. No person who shall hold any office or place of trust or Who disqnaii- profit under the United States, or any department thereof, or fice under' tUs' under this State, or any other State or government, shall hold fi'glbie toCen- or exercise any other office or place of trust or profit under the «''=^ Assembly. authority of this State, or be eligible to a seat in either house ' of the General Assembly : Provided, that nothing herein con- tained shall extend to officers in the militia or justices of the peace. Ratified in convention, this eleventh day ) of July in the year of our Lord, one ' NATH'L MACON, PreS. thousand eight hundred and thirty-five. ) Edmund B. Freeman, Secretary of the Convention. Joseph D. Ward, Assistant Secretary. AN ORDINANCE TO CARRY INTO EFFECT THE AMENDED CONSTITUTION. Amendments Be it Ordained and declared, by the delegates to this Conven- submitte(rto°" tiou, in Convention assembled, and it is hereby ordained by the the people. authority of the Same, That the amendments to the constitu- tion of this State, adopted by this convention, be submitted by the governor to the people, on the second Monday in Novem- ber next, thirty days notice having been given, and that the Polls to be kept polls be Opened by the respective sheriffs, and kept open for day" 'imd'* three successive days, at the several election precincts in each results certified g,^(j every county in the State, under the same rules and regu- lations, as now exist, for the election of members to the Gen- eral Assembly. That the said sheriffs be required to compare and certify the results of the elections, on or before the Monday following, and transmit the same in twenty days thereafter, to the governor of the State. That all persons qualified to vote for members of the house of commons, may vote for or against The vote, how a ratification of the amendments. Those who wish a ratifica- tion of the amendments, voting with a printed or written ticket, " Ratification " — those of a contrary opinion, " Rejection." Duplicate Further, That it shall be the duty of the sheriffs to make polls. duplicate statements of the polls in their respective counties, sworn to before the clerk of the county court : one copy of which shall be deposited in said clerk's office, and the other One sent to copy transmitted to the governor of the State, at Raleigh. governor. V. • 7 ■ j i i i • /- > mi x Be it further ordained by the authority of the same, inat when the returns aforesaid shall have been received, the same To be opened shall be opened by the governor in the presence of the secre- nor. tary of state and treasurer; and in case a majority of the votes If ratified, polled shall bc in favor of a ratification of the amendments, the Fo be'niade'by samc shall bo forthwith made known by a proclamation of the governor. governor to the people of the State. And thereupon, the gov- STATE CONSTITUTION. 29 ernor shall cause to be indorsed on the amendment, as enrolled Ratification to by order of the convention, or shall annex thereunto, a certifi- d'e'lS"" cate under his signature declarinsr that the said amendments '"''"'^ ''■''f'''^- i 1 ' r 1 1 ^ ernor, under have been ratihed by the people of North Carolina, and the *« R"'""' »«=>'' secretary of State shall countersign the said certificate, and '"^' annex thereto the great seal of the State, and the said amend- ments so enrolled with the certificate aforesaid shall be forever kept among the archives of the State in the office of the secre- tary aforesaid. Be it further ordained by the authoriti/ aforesaid, That the Amendments amendments thus ratified shall take effect, and be in force, fi^rs'J Iflw from and after the first day of January, a.d. one thomsand me.'^''' eight hundred and thirty-six: Provided, however, that the governor, the council of State, the secretary of State, and the public treasurer, who may then be in office, shall severally con- tinue to exercise their respective functions until the governor council of State, secretary of State, and public treasurer ap- pointed under the amended constitution, shall enter upon the duties of their oflEice. Ratified in Convention, this eleventh day \ ofJuly anno Dom. one thousand eights NATH'L MACON, PreS hundred and thirty-five. ) , ^ # co. Edmund B. Fkeeman, Secretary of the Convention. Joseph D. Ward, Assistant Secretary. MOTE. Sect. 8. Roberts r. Cannon, 4 D. & B. 256. Opinion of judges, App. to 8 Ire. Eq Rep. Sect. 40. 3 Ire. 141; 5 Ire. Eq. 207; 4 Dev. 247; 3 Dev. 188. 3* IJS^DEX CONSTITUTION OF NORTH - CAROLINA. DECLARATION OF EIGHTS. BEcnow Power derived from the people, 1 Right of government in the people, 2 None entitled to exclusive privileges, etc., 3 Legislative and other powers to be kept separate, .... 4 Suspension of laws forbidden, ^ Elections to be free, " Riirhts of accused in criminal prosecutions, '' Mode of prosecution prescribed, . ° Jury trial in criminal prosecutions, " Bail, fines, and punishments to be reasonable, K' General warrants forbidden, ^^ Nbne to be deprived of liberty or property, but by the law of the land, 12 Habeas corpus, . ' Jury trial in civil causes, . Freedom of the press not to be restrained, 15 Taxes not to be imposed, except by General Assembly, . . . IC Eight to bear arms — Standiug armies not to be kept up — Military power subordinate to the civil, 1' Instruction, right of, Religious worship, right of, Elections to be frequent, 20 Fundamental principles to be often recurred to, 21 Hereditary privileges, etc., forbidden, 22 rerpetuities, etc., forbidden, 23 Ex post faclo laws forbidden, 24 Limits of the State — Territory held in sovereignty — Saving the rights of Indians — Other governments may be estaWishcd west — Present titles confirmed, 2J INDEX TO STATE CONSTITUTION. 31 CONSTITUTION. 1. LEGISLATIVE DEPARTMENT. BECTION Legislative authority vested in two branches, 1 Senate, 2 House of Commons, ........ . . 3 ■\Vhen convened, denominated the General Assembly, ... 4 Qualification of members of Senate, . . . . . . . ' 5 " of members of House of Commons, .... 6 " of voters for senators, 7 " of voters for members of House of Commons, . . 8 " of voters for members from towns, ..... 9 Each house to choose its officers, judge of the qualification of its mem- bers, adjourn, prepare bills, issue writs of election — jointly to ad- journ, when, 10 Bills to be read three times in each house, and signed by the Speaker, 1 1 Members to take oath of office, and to the State, 12 Judges appointed by General Assembly, and commissioned by the gov- ernor during good behavior, . . . . . . . .13 General Assembly to appoint officers of militia, 14 2. EXECUTIVE DEPARTMENT. Two Houses jointly to elect governor — His qualifications, . . .15 Two Houses jointly shall elect seven persons, counsellors of State, — their duty to keep a journal of their proceedings, 16 Great seal to be kept by the governor, and affixed to grants, commissions, etc., 17 Governor to be commander-in-chief of militia, 18 His powers and duties — In case of vacancy, who to fill the office, . .19 Vacancies during recess of General Assembly, in offices filled by that body, to be filled by governor and council, 20 Governor, judges, and attorney-general to have salaries, . . . 21 Treasurer appointed by the General Assembly, 22 Governor and other officers impeachable or indictable for corruption, etc., 23 Secretary of State appointed by General Assembly, .... 24 Defaulting receivers of public money ineligible to General Assembly, . 25 Public Treasurer, in oflice or in defiiult, ineligible to Genertil Assembly, 26 Officers of the Army or Navy of United States, and Agents to supply the Army or Navy, ineligible; members, etc., accepting such places, to vacate their seats, etc., _ 27 Counsellor of State ineligible, 28 Judges ineligible, nor to be of the Council, 29 Secretary of State, Attorney-General, and Clerks of Courts ineligible, nor to bo of the Council, . 30 Clergymen, exercising pastoral functions, ineligible, nor to be of the Council, 32 32 INDEX TO STATE CONSTITUTION. Atheists, infidels, and persons Tvith religious principles dangerous to the freedom of the State, etc., excluded from office, . . . .32 3. MISCELLAXEOUS. Justices of the Peace; mode of appointment, to hold office during good behavior, 33 No religious establishment ; all may use their own mode of worship, . 34 Lucrative offices, two not to be held at a time by one person, . . 35 Commissions, grants, and writs to run in the name of the State of North Carolina ; how signed, ......... 36 Delegates to the Continental Congress, 37 Sheriff, coroner, and constables for each county, 38 Debtor not to be imprisoned unless, etc. ; Prisoners bailable unless, etc., 39 Foreigners, settling and taking the oath of allegiance, may take and hold land, 40 Cheap schools to be established, and one or more Universities, . . 41 Purchase of lands from Indians prohibited, 42 Entails in perpetuity forbidden, 43 Declaration of Rights to be a part of the Constitution, . . . .44 Members of the General Assembly may protest of record, ... 45 Neither house to transact business with less than a majority of all the members ; yeas and nays may be demanded on a second ; journals to be printed, 46 AlVIENDMENTS. 1. LEGISLATIVE DEPARTMENT. Art. Sec. CI. Senate to consist of fifty members, biennially elected by districts, to be laid off every two years on the basis of public ta.\ation ; no county to be divided, etc., Ill House of Commons to consist of onfe hundred and twenty members, biennially elected by counties, on the basis of federal popu- lation, 112 Apportionment of members, when made, . . . . • 113 Ratio of representation ; how ascertained, 114 How Senate to be composed till first Session after 1841, . . 12 1 How House of Commons to be composed till then, . . .12 2 Qualification of Senators, 13 1 " of voters for Senators, 13 2 Free persons of color not to vote for members of either house, . 13 3 In election of officers. General Assembly to vote t'U'a voce, . .14 1 General Assembly may regulate the appointment and removal of militia officers, 142 General Assembly may pass laws to regulate, but shall not grant divorces, 143 INDEX TO STATE CONSTITUTION. General Assembly shall not alter names, nor legitimate bastards, etc., but may pass laws for that purpose, . . . . 14 4 The General Assembly shall not pass private bills, but on notice of thirty days, . . . .145 Vacancies in membership before the meeting of General Assem- bly, how filled 145 Sessions biennial ; election of Secretary of State, Treasurer, and Council, 147 2. EXECUTIVE DEPARTMENT. Governor, how chosen, 2 1 Term of office ; when ineligible, 2 2 Returns of his election, how made, opened, and published ; how elected in case of equal vote between two, .... 2 3 Elections contested, how determined, 2 4 To enter on duty the first day of January, having first taken the oaths of office, ......... 2 5 3. JUDICIAL DEPARTilENT. Governor and other officers may l)e impeached, . . . .311 How punished on conviction, ...... .312 The House of Commons shall impeach, and the senate shall try ; mode of trial, 313 Judges may be removed by the General Assembly for mental or physical incapability, ..321 Their salaries not to be diminished while in office, . , .322 Office of Justice of the Peace vacated on conviction of infamous crime or corruption in office, etc., ..... 3 8 Attorney-General to be elected for four years and commissioned by the governor, ......... 3 4 4. inSCELLANEOUS. Convention of the people, how called, ..... 4 Constitution, how altered ; proceedings by the General Assembly ; how ratified by the people, 4 Religious test for office, 4 Capitation tax to be equal, 4 Free males over twenty-one, and slaves between twelve and fifty years of age, subject to such tax, 4 Who disqualified to hold office under this State, and ineligible to the General Assembly, 4 CONSTITUTION THE UNITED STATES NORTH CAROLINA. In General Assembly, Nov. 20, 1788. Convention ReSOLVED, That it is the opinion of this house, a new con- recommended . '^ ' . to consider the vention be reconimended, for the purpose of reconsidering tution. the new constitution held out by the federal convention as a government for the United States. Connties and Resolved, That it be recommended to such of the inhabi- towns recom- ' mended to elect tants of this State as are entitled to vote for members of the m August, If. ,1 I 1 1 • 1 1789, delegates house of commons, at the annual election to be held in each the proposed county on the third Friday and Saturday in August next, to thTunu'ed" ° '^^^^ ^^^ ^^^ persons in each county, and one person in each States. borough-town having a right of representation agreeable to the constitution of this State, to sit as a State convention, for the purpose of deliberating and determining on the proposed federal constitution for the future government of the United States, and on such amendments, if any, as shall or may be made to the said constitution by a convention of the States previous to the meeting of the said convention of this State ; which election shall be conducted agreeable to the mode, and conformable to the rules and regulations prescribed by law for conducting the elections of members of the General Assembly : Citizens free- ^nd every citizen within this State, being a freeholder, shall be holders, eligi- •' _, . bie to the con- eligible to a seat in the said Convention, sheriffs and returning vention. " , , oihcers excepted. notuv^the" pco- Resolved, That the sheriffs of the counties in this State, do pie of the eiec- advertise and notify the people of their counties and borough- towns, of the time, place, and purpose of holding said election, at the same time, and in the same manner, as the law re- quires them to advertise elections for members of the General Assembly. CONSTITUTION OF THE UNITED STATES. 35 Resolved, That the persons so elected to serve in a State Delegates to convention, do assemble and meet together on the third Mon- No^nlfer," day in November, at such place as shall be appointed for the J,- cLtitution meeting of the General Assembly, then and there to deliberate ""^ "PP'oved, to and determine on the said constitution, and on the amend- ratify""" ments, if any ; and if approved of by them, to confirm and ratify the same on behalf of this State, and make report thereof to congress and to the General Assembly. Resolved, That it be recommended by this Assembly, to Also to con- the convention which is to meet on the thu-d Monday in iMeviiL^orght November to reconsider the new constitution, that they also ''emedlnThl consider the propriety of allowing the town of Fayetteville a f^^bT^ ^'' member to represent the said town, on the same terms with the other district towns in this State. ALEX. MARTIN, S. S. JOHN SITGREAVES, S. C. I constitutiou. In Convention, Saturday, Nov. 21, 17S9. Whereas the general convention which met in Philadelphia, in pursuance of a recommendation of congress, did recommend to the citizens of the United States, a constitution or form of government, in the following words, namely : — We, the people of the United States, in order to form a Objects of the more perfect Union, establish justice, insure domestic tran- Ked " quillity, provide for the common defence, promote the general th/frderfi''"" welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution for the United States of America. ARTICLE I. SECTION I. All legislative powers herein granted shall be vested in a Legiaiative congress of the United States, which shall consist of a senate fn crg,;if' and house of representatives. SECTION II. The house of representatives shall be composed of members Houseofrepre- chosen every second year by the people of the several States, membeT;Ty ' ■ 36 CONSTITUTION OF THE UNITED STATES. whom chosen; and the electors in each State shall have the qualifications qualifications .... . , , i ,. i <~i of electors. requisite lor electors of the most numerous branch of the State legislature. A rfpresenta- 2. No person shall be a representative who shall not have tive to be twen- . i . r c ty-five; seven attained to the age of twenty-nve years, and been seven years of the Unite'd ° a citizen of the United States, and who shall not, when Uihn^ltant'of'" elected, be an inhabitant of that State in which he shall be his State when ghosen. elected. Kepresenta- 3. Representatives and direct taxes shall be apportioned tobeappor-^ among the several States which maybe included within this kietcfnuxnbers. Union, according to their respective numbers, which shall be determined by adding to the ^vhole number of free persons, including those bound to service for a term of years, and ex- cluding Indians not taxed, three fifths of all other persons. Aetna! enu- The actual enumeration shall be made within three years after ten years. the first meeting of the congress of the United States, and within every subsequent term of ten years, in such manner as Limitation of they shall by law direct. The number of representatives shall reseutation, not exceed One for every thirty thousand, but each State shall ^'"'' have at least one representative ; and until such enumeration First appor- shall bc made, the State of New Hampshire shall be entitled rirp'rorentr- to choose three, Massachusetts eight, Rhode Island and Provi- '"'^" dence Plantations one, Connecticut five, New York six. New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten. North Carolina five. South Carolina five, and Georgia three. Writs of eiec- 4. When vacancies happen in the representation from any vacandes. '°^ State, the executive authority thereof shall issue writs of elec- tion to fill such vacancies. House of rep- 5. The house of representatives shall choose their speaker choo"sc Jpcakcr and other officers ; and shall have the sole power of impeaeh- etc, and have . power of im- meilt. peachmeut. SECTION III. tnntors, how 1. The senate of the United States shall be composed of vc"!! vile.''" two senators from each State, chosen by the legislature thereof, [See art. 5.] ^^ ^^^ years ; and each senator shall have one vote. Senate divided 2. Immediately after they shall be assembled in conse- csi**to"^bo'^chol quence of the first election, they shall be divided as equally as yaa^r^ ''™ may be into three classes. The seats of tiic senators of the first class shall be vacated at the expiration of the second year, of the second class at the expiration of the fourth year, and of CONSTITUTION OF THE UNITED STATES. 37 the third class at the expiration of the sixth year, so that one Executives of ' . . states to fill va- third may be chosen every second year; and if vacancies hap- cancies in the pen by resignation, or otherwise, during the recess of the taurcs°etc. legislature of any State, the executive thereof may make tem- porary appointments vmtil the next meeting of the legislature, which shall then fill such vacancies. 3. No person shall be a senator who shall not have attained A senator apred ' 30; lime years to the age of thirty years, and been nine years a citizen of the n citizen of the United States, and who shall not, when elected, be an inhabi- and an inhabi- tant of that State for which he shall be chosen. '")|*,I', cilol'ra.'^ 4. The vice-president of the United States shall be president Vice-president to be president of the senate, but shall have no vote, unless they be equally ot" the senate; -,. .J J to vote on an divided. equal division 5. The senate shall choose their other officers, and also a ™j!e'sen:ite to president pro tempore, in the absence of the vice-president, or "^•'oo"' "'e"" when he shall exercise the office of president of the United tempore, etc. States. 6. The senate shall have the sole power to try all impeach- The senate -iiri • ■ ,. 1 1 . 11 . 1 liave the sole ments. When sitting for that purpose, they shall be on oath power to try or affirmation. When the president of the United States is eto^'"^ '™ " ' tried, the chief justice shall preside : and no person shall be convicted without the concurrence of two thirds of the mem- bers present. 7. Judgment in cases of impeachment shall not extend Extent of judg- f , , I ^ ,-,- IT 1 • r- ■ nient in cases lurther than to removal irom otiice, and disqualincation to of impeacii- hold and enjoy any office of honor, trust, or profit under the p!,rty'i'"'tiier^ United States: but the party convicted shaU nevertheless be [j||Ij'j^jg''|^y^j.' liable and subject to indictment, trial, judgment, and punish- 1'"^'- ment, according to law. SECTION IV. 1. The times, places, and manner of holding elections for Time?, etc., of ' ' ' ° holdiiis; elec- senators and representatives, shall be prescribed in each State by the legislature thereof; but the congress may at any time by law make or alter such regulations, except as to the places thS'suves'or of choosing senators. ^^ congress. 2. The congi'ess shall assemble at least once in every year, Congress to ns- ° •> •> ' semble aiMiual- and such meeting shall be on the first Monday in December, ly the first unless they shall by law appoint a different day. iicccnrber, un- A loss, etc. rs and repre lltntivCs 38 CONSTITUTION OF THE UNITED STATES. Ench house 1. Each house shall be the judge of the election?, returns, ik'c^Hon nnd and qualifications of its own members, and a majority of each offts^owir' shall constitute a quorum to do business ; but a smaller num- "uovum^' ber may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner, and under such penalties as each house may provide. Each house to 2. Each house may determine the rules of its proceedings, niVes nncTpun- punish its members for disorderly behavior, and, with the con- isiuts mem- ^.^^^^^,^^,3 ^f ^^^o thirds, expel a member. Journals of 3. Each house shall keep a journal of its proceedings, and Yeivs nnd'mys from time to time publish the same, excepting such parts as may in their judgment require secrecy ; and the yeas and nays of the members of either house on any question shall, at the desire of one fifth of those present, be entered on the journal. Adjournment 4. Neither house, during the session of congress, shall, with- out the consent of the other, adjourn for more than three days, nor to any other place than that in which the two houses shall be sitting. how taken. of both houses. SECTION VI. Senators and ^ The senators and representatives shall receive a compen- representatives * - i i 1 1 ■ 1 +. to be paid, etc., sation for their services, to be ascertamed by law, anci paid out arrost^not'tT of the treasury of the United States. They shall in all cases, forrbateTetc. except treason, felony, and breach of the peace, be privileged from arrest during their attendance at the session of their re- spective houses, and in going to and returning from the same ; and for any speech or debate in either house, they shall not be questioned in any other place. Concerning the 2. No senator or representative shall, during the time for cetb':^se''natos" which he was elected, be appointed to any civil office under t^ts?'""''"''^' the authority of the United States, which shall have been created, or the emoluments whereof shall have been increased during such time ; and no person holding any office under the United States, shall be a member of either house during his continuance in office. SECTION YII. Eevenuebill 1. All bills for raising revenue shall originate in the house ^ifhSusfoV" of representatives ; but the senate may propose or concur with tiyes^lT' amendments as on other bills. ills CONSTITUTION OF THE UNITED STATES. 39 2. Every bill which shall have passed the house of rejiresent- Powers of tiie atives and the senate, shall, before it become a law, be pre- orc™gr'cf,''in sented to the president of the United States ; if he approve, he faws'^am/t'ife "^ shall sign it, but if not, he shall return it, with his objections fo™? "f pm- , r^ , . •> ccetling on hills to that house in which it shall have originated, who shall '"*at''espeet enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration two thirds of that house shall agree to pass the bill, it shall be sent, together with the objections, to the other house, by which it shall likewise be reconsidered, and if approved by two thirds of that house, it shall become a law. But in all such cases the votes of both houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each house respectively. If any bill shall not be returned by the president within ten days (Sundays ex- cepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the congress by their adjournment prevent its return, in which case it shall not be a law. 3. Every order, resolution, or vote, to which the concurrence Joint lesoia- of the senate and house of representatives may be necessary, for'l%ou?ni?' (except on a question of adjournment) shall be presented to the Se'lmr' president of the United States ; and before the same shall take '' '' effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the senate and house of representatives, according to the rules and limitations pre- scribed in the case of a bill. SECTION VIII. 1. The congress shall have power to lay and collect taxes, Congress shaU duties, imposts, and excises, to pay the debts and provide for i.^To lay takes, the common defence and general welfare of the United States; '^"'' but all duties, imposts, and excises shall be uniform through- out the United States ; 2. To borrow money on the credit of the United States; 2. Borrow 3. To regulate commerce with foreign nations, and among 3""Re|i'.iate the several States, and with the Indian tribes ; commerce. 4. To establish an uniform rule of naturalization, and uni- *• ';**';^'''"''"'« form laws on the subject of bankruptcies throughout the iz^ation'm.i""' United States ; ''''"'''"'" '''"''• 5. To coin money, regulate the value thereof, and of foreign eto^ami"™"' coin, and fix the standard of weights and measures ; meillurcs""' meat to receive sanc- tion as bills. 40 CONSTITUTION OF THE UNITED STATES. couiiterfBiteis. rities and current coin of the United States ; post°offices,etc. 7. To establish post-offices and post-roads ; 11. Raisfi mies, etc. ®- ^.'■°\'<|f *'<"■ 6. To provide for the punishment of counterfeiting the secu- couiiterfa: 7. Establii post office rights?"' 8. To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclu- sive right to their respective writings and discoveries ; hitllnfcrior" ^- ^° constitute tribunals inferior to the supreme court ; to tribunals, etc. define and punish piracies and felonies committed on the high seas, and oflences against the law of nations ; war. etc. "^"^ ''"^^ 1^- To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water ; 11. To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years ; nw^™"''"'' ^^- To provide and maintain a navy; 13. Make rules 13. To make rules for the government and reoralation of the forai-myand , , , , „ '^ navy. laiiu and naval forces ; 14. Provide for 14. To provide for calling forth the militia to execute the calling forth r i tt • the militia. laws of the Union, suppress insurrections, and repel inva- sions ; 15. Provide for 15. To provide for organizing, arming, and disciplining the organizing the . ' " " °' ' = mSitia, etc. militia, and for governing such part of them as may be em- ployed in the service of the United States, reserving to the States respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by congress ; 16. Exercise 16. To exercise exclusive legislation in all cases whatsoever, exclusive juns- . . . diction over a over such district (not exceeding ten miles square) as may, by places for forts, cession of particular States, and the acceptance of congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the con- sent of the legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings ; — and, 17. Make all 17. To make all laws which shall be necessary and proper laws necessary . . _ j i i to the execu- for carrying into execution the foregoinc: powers, and all other tion of their ^ , , , . . . . ' powers. powers vested by this constitution in the government of the United States, or in any department or officer thereof SECTION IX. Importation of 1. Thc migration or importation of such persons as any of certain persons , „ . . not to be pro- the States now existing shall think proper to admit, shall not CONSTITUTION OF THE UNITED STATES. 41 be prohibited by the congress prior to the year one thousand iiibited until af- eight hundred and eight, but a tax or duty may be imposed on article's.] ^^^^ such importation, not exceeding ten dollars for each person. 2. The privilege of the writ of habeas corpus shall not be Habeas corpus. suspended, unless when in cases of rebellion or invasion the public safety may require it. 3. No bill of attainder or ex post facto law shall be passed. No bill of at- 4. No capitation, or other direct tax shall be laid, unless in j^TfacTo w. proportion to the census or enumeration hereinbefore directed fJcoKiiug'^to to be taken. census. 5. No tax or dnty shall be laid on articles exported from any No export State. No preference shall be given by any regulation of com- eren^J of onf merce or revenue to the ports of one State over those of fther in com- another: nor shall vessels bound to, or from, one State, he"""""^- obliged to enter, clear, or pay duties in another. 6. No money shall be drawn from the treasury, but in con- Public moneys, sequence of appropriations made by law ; and a regular state- e^r ''""'"'' ment and account of the receipts and expenditures of all public money shall be published from time to time. 7. No title of nobility shall be granted by the United States : No titles of no- and no person holding any office of profit or trust under them, sS,' etc." '''^" shall, without the consent of congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign State. SECTION X. 1. No State shall enter into any treaty, alliance, or confed- Restrictions on eration; grant letters of marque and reprisal; coin money ; the Ss 1 emit bills of credit ; make any thing but gold and silver coin '""''"'^'y- a tender in payments of debts ; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility. 2. No State shall, without the consent of the congress, lay Po«'ers which any imposts or duties on imports or exports, except what may exercise ™h° be absolutely necessary for executing its inspection laws ; and tt""on-"°" the net produce of all duties and imposts, laid by any State s'"^''- on imports or exports, shall be for the use of the treasury of the United States ; and all such laws shall be subject to the revision and control of the congi-ess. No State shall, without the consent of congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or 4* 42 CONSTITCTION OF THE UNITED STATES. compact with another State, or with a foreign power, or en- gage in war, unless actually invaded, or in such imminent danger as will not admit of delay. ARTICLE 11. Executive 1. The executive power shall be vested in a president of the in a president, United States of America. He shall hold his office during the term of four years, and, together with the vice-president, chosen for the same term, be elected as follows : — Electors of 2. Each State shall appoint, in such manner as the legisla- president and *■ ' vice-president, turc thereof may direct, a number of electors, equal to the whole number of senators and representatives to which the State may be entitled in the congress : but no senator or repre- sentative, or person holdhig an office of trust or profit under the United States, shall be appointed an elector. Meeting of the 3. The electors shall meet in their respective States, and president, etc. vote by ballot for two persons, of whom one at least shall not nnnuiied'bj^'tlie ^^ ^'^ inhabitant of the same State with themselves. And artU;leT2^'f *'^^y '^'^^'^ make a list of all the persons voted for, and of the number of votes for each ; which list they shall sign and cer- tify, and transmit sealed to the seat of the government of the United States, directed to the president of the senate. The president of the senate shall, in the presence of the senate and house of representatives, open all the certificates, and the votes shall then be counted. The person having the greatest num- ber of votes shall be president, if such number be a majority of the whole number of electors appointed ; and if there be more than one who have such majority, and have an equal number of votes, then the house of representatives shall im- mediately choose by ballot one of them for president ; and if no person have a majority, then from the five highest on the list the said house shall in like manner choose the president. But in choosing the president, the votes shall be taken by States, the representation from each State having one vote; a quorum for this purpose shall consist of a member or members from two thirds of the States, and a majority of all tiie States shall be necessary to a choice. In every case, after the choice of the president, the person having the greatest number of votes of the electors shall be the vice-president. But if there CONSTITUTION OF THE UNITED STATES. 43 should remain two or more who have equal votes, the senate shall choose from them by ballot the vice-president. 4. The congress may determine the time of choosing the Congress may electors, and the day on which they shall give their votes ; choSingThV*^ which day shall be the same throughout the United States. ek-cto'sretc. 5. No person except a natural born citizen, or a citizen of Qualifications the United States, at the time of the adoption of this consti- °* P'""'''''^"'- tution, shall be eligible to the office of president; neither shall any person be eligible to that office who shall not have at- tained to the age of thirty-five years, and been fonrtcen years a resident within the United States. 6. In case of the removal of the president from office, or of l" <^"se of va- his death, resignation, or inability to discharge the powers and oftke J"presi- duties of the said office, the same shall devolve on the vice- president to*"^" president, and the congi-ess may by law provide for the case of '"''' ""'• removal, death, resignation, or inability, both of the president and vice-president, declaring what officer shall then act as president, and such officer shall act accordingly, until the disa- bility be removed, or a president shall be elected. 7. The president shall, at stated times, receive for his ser- Compensation vices, a compensation, which shall neither be increased nor jent.^ P'"'"'" diminished during the period for which he shall have been elected, and he shall not receive within that period any other emolument from the United States, or any of them. 8. Before he enters on the execution of his office, he shall The president take the following oath or affirmation : — Form of "he '''" "I do solemnly swear (or affirm) that I will faithfully "''"'■ execute the office of president of the United States, and will, to the best of my ability, preserve, protect, and defend the constitution of the United States." SECTION II. 1. The president shall be commander-in-chief of the army The president and navy of the United States, and of the militia of the several in-cS-"bf " States, when called into the actual service of the United States ; "p&ons'orex- he may require the opinion, in writing, of the principal officer ccnUve offi- _ in each of the executive departments, upon any subject relat- e™''t i'!V"l"lrs, ing to the duties of their respective offices ; and he shall have "'''" power to gi-ant reprieves and pardons for offences against the United States, except in cases of impeachment. 2. He shall have power, by and with the advice and consent Hemav.bvad- of the senate, to make treaties, provided two thirds of llie sen- aie'nlurtroa: 44 COXSTITCTION OF THE UNITED STATES. ties, appoint ambfissadors and other offi- cers ; but con- gress may vest certain ap- pointments otherwise. President may fill vacancies in recess. ators present concur; and he shall nominate, and by and with the advice and consent of the senate, shall appoint ambassa- dors, other public ministers and consuls, judges of the supreme court, and all other officers of the United States, whose ap- pointments are not herein otherwise provided for, and which shall be established by law : but the congress may by law vest the appointment of such inferior officers, as they think proper, in the president alone, in the courts of law, or in the heads of departments. 3. The president shall have power to fill up all vacancies that may happen during the recess of the senate, by granting commissions which shall expire at the end of their next session. President to recommend measures to congress, etc., — convene and adjourn congress on certain occa- sions, — re- ceive ambassa- dors, see the laws executed, and commis- sion officers. SECTION III. He shall from time to time give to the congi'ess information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient ; he may, on extraordinary occasions, convene both houses, or either of them, and in case of disagreement between them, with re- spect to the time of adjournment, he may adjourn them to such time as he shall think proper; he shall receive ambassa- dors and other public ministers ; he shall take care that the laws be faithfully executed, and shall commission all the of- ficers of the United States. SECTION IV. The president, vice-president, and all civil officers of the President and otlier officers removable by United States, shall be removed from office on impeachment impeachment. , . . for, and conviction of, treason, bribery, or other higii crimes and misdemeanors. ARTICLE III. SECTION I. Judicial power Thg judicial power of the United States sliall be vested in vested m a su- •' ' « .• preme court, one Supreme court, and in such inferior courts as the consress etc., judges to . *^ hold 'their offl- may from tmie to time ordam and establish. The judges, good behavior, both of the supreme and inferior courts, sliall liold tlieir offices during good behavior; and shall, at stated times, receive for their services, a compensation, which shall not bo diminished during their continuance in office. CONSTITUTION OF THE UNITED STATES. 45 1. The judicial power shall extend to all cases, in law and Kxtcntofthe equity, arising under this constitution, the laws of the United '"''""''' ■"""'""■ States, and treaties made, or which shall be made, under their authority; — to all cases affecting ambassadors, other public ministers and consuls; — to all cases of admii-alty and mari- time jurisdiction ;— to controversies to which the United States shall be a party; — to controversies between two or more States; — between a State and citizens of another State ; — between citizens of different States; — between citizens of the same State claiming lands under grants of different States, and between a State, or the citizens thereof, and foreign States, citizens, or subjects.* 2. In all cases affecting ambassadors, other public ministers Original nnj and consuls, and those in which a State shall be party, the mSoVti.?" supreme court shall have original jurisdiction. In all the other ^"P'"™^^ <=°"'''- cases before mentioned, the supreme court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the congress shall make. 3. The trial of all crimes, except in cases of impeachment. Trial of crimes shall be by jury ; and such trial shall be held in the State where *° ''" ''^•''"^"' the said crime shall have been committed ; but when not com- The venue. mitted within any State, the trial shall be at such place or places as the congress may by law have directed. SECTION III. 1. Treason against the United States, shall consist only in Definition of 1 • • j_ ii • T, . , . treason, etc. levying war agamst them, or in adhermg to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court. 2. The congress shall have power to declare the punishment Congi-essto de- of treason, but no attainder of treason shall work corruption i^shme'irtoftiTa- of blood, or forfeiture, except during the life of the person '°"' ''''^" attainted. [* Ameuded, see art. 11.] 46 CONSTITUTION OF THE UNITED STATES. ARTICLE IV. SECTION I. Credit to be Full faith aiid credit shall be giveia in each State to the itluetoth" public acts, records, and judicial proceedings of every other et'c^.'ofanotW. State. And the congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the efTect thereof. SECTION II. Reciprocity of J. The citizens of each State shall be entitled to all privi- citizenship . througiiout the leges and immunities of citizens in the several States. Crimhiaisfly- 2. A person charged in any State with ti-eason, felony, or Stlteto^iTo'ther other Crime, who shall flee from justice, and be found in to be delivered another State, shall on demand of the executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime. Runaway 3. No person held to service or labor in one State, under the slaves, etc., to, , „ . . , ,, in- c be deUvered laws thereof, escapmg into another, shall, in consequence ot "^" any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due. SECTION III. New States 1. New States may be admitted by the congress into this ted^ntoth™ Union; but no new State shall be formed or erected within Union, etc. ^^^ jurisdiction of any other State ; nor any State be formed by the junction of two or more States, or parts of States, with- out the consent of the legislatures of the States concerned as well as of the congress. Congress to 2. The concress shall have power to dispose of and make all have power of ° • iU territory, etc. needful rules and regulations respecting the teiTitory or other property belonging to the United States ; and nothing in this constitution shall be so construed as to prejudice any claims of the United States, or of any particular State. SECTION IV. liepuWicin The United States shall guarantee to every State in this rnentgimron'-" Union a republican form of government, and shall protect each s^tate"'etc.°'' of them against invasion; and on application of the legisla- CONSTITUTION OF THE UNITED STATES. 47 ture, or of the executive, (when the legislature cannot be con- vened,) against domestic violence. ARTICLE V. The congress whenever two thirds of both houses shall Modeofaraend- deem it necessary, shall propose amendments to this constitu- tufiou!^ "°"^"" tion, or, on the application of the legislatures of two thirds of the several States, shall call a convention for proposing amend- ments, which, in either case, shall be valid to all intents and purposes, as part of this constitution, when ratified by the legislatures of three fourths of the several States, or by con- ventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the congress; Provided, That no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article ; and that no State, without its consent, shall be deprived of its equal suffrage in the senate. ARTICLE VI. 1. All debts contracted and engagements entered into, be- Assumption of fore the adoption of this constitution, shall be as valid against under 'Z'^con the United States under this constitution, as under the con- ^^'^^''^^"'>"- federation. 2. This constitution, and the laws of the United States This constitu- which shall be made in pursuance thereof; and all treaties conies'! and made, or which shall be made, under the authority of the ^u^feme'iaw— United States, shall be the supreme law of the land ; and the *'"-' ^-""^ 1 • oj , 1 11 1 , -, , jiiiiu'es bound judges m every State shall be bound thereby, any thing in the tUereijy. constitution or laws of any State to the contrary notwith- standing. 3. The senators and representatives before mentioned, and Members of the members of the several State legislatures, and all executive the sStckgis'^ and judicial officers, both of the United States and of the iTound^'byfath several States, shall be bound by oath or affirmation, to sup- constitution'''''' port this constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States. 48 CONSTITUTION OF THE UNITED STATES. ARTICLE VII. Ratification of The ratification of the conventions of nine States, shall be nine States, ^ ^ ' sufficient, etc. sufficient for the establishment of this constitution between the States so ratifying the same. DoxE in convention by the unanimous consent of the States present, the seven- teenth day of September in the year of our Lord one thousand seven hundred and eighty-seven, and of the independence of the United States of America the twelfth. In witness whereof we have hereunto subscribed our names. GEORGE WASHINGTON, President, and deputi/ from Virginia. Delaware. GEORGE HEAD, GUNNING BEDI-ORD, Jr., •lOHN DICKINSON, RICHARD liASSETT, JACOB BROOM. New Hampshire. JOHN LANGDON, NICHOLAS OILMAN. Massachusetts. NATHANIEL GORHAM, KUFUS laNG. COSXECTICUT. WILLIAM SAMUEL JOHNSON, ROGER SHERMAN. New York. ALEXANDER HAMILTON. New Jersey. WILLIAM LIVINGSTON, DAVID BRl'.ARLV, WILLIAM PATTERSON, JONATHAN DAYTON. Pennsylvania. BENJAMIN FRANKLIN, THOMAS MIFFLIN, ■ROIiEKT MURRIS, GEOiaiF CLVMFI!, THOMAS FITZSIMONS, JARKK iNi;i:i;suLL, james wilsux, govei;xkl:i: morris. Attest, Maryland. JAMES M'HENRY, DANIEL OF ST. THOMAS JENIFER, DANIEL CARROLL. Virginia. JOHN BL.UE, JAMES MADISON, Jr. North Carolina. WILLI.A.M BLOUNT, RICHARD DOBBS SI'AIGHT, HUGH WILLIAMSON. South Carolina. J. RUTLEDGE, CHAS. COTKSWORTH PINCKNEY, CHARLES PINCKNEY, PIERCE BUTLER. Georgia. WILUAM FEW, ABR. BALDWIN. William Jackson, Secretary. Resolved, That this convention, in behalf of the freemen, citizens and inhabitants of the State of North Carolina, do adopt and ratify the said constitution and form of govern- ment. SAMUEL JOHNSTON, President. By order, J. Hunt, Secretary. In Convention, Monday, September 17tii, 1787. Present: the States of New Hampshire, Massachusetts, Connecticut, Mr. Hamilton from New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia. CONSTITUTION OF THE UNITED STATES. 49 1. Resolved, That the preceding constitution be laid be- Constitution to fore the United States in congress assembled, and that it is congress "'jtc^' the opinion of this convention, that it should afterwards be submitted to a convention of delegates chosen in each State by the people thereof, under the recommendation of its legis- lature, for their assent and ratification ; and that each conven- tion assenting to, and ratifying the same, should give notice thereof to the United States in congress assembled. 2. Resolved, That it is the opinion of this convention that Congress to fix as soon as the conventions of nine States shall have ratified ^ '?"? ^'"■' ?P' pointing eJec- this constitution, the United States in consress assembled 'f* of P^esi- dent etc. should fix a day on which electors should be appointed by the States which shall have ratified the same, and a day on which the electors should assemble to vote for the president, and the time and place for commencing proceedings under this consti- tution. That after such publication, the electors should be appointed, and the senators and representatives elected. That mendedfoi^ar the electors should meet on the day fixed for the election of sSufionlnto" the president, and should transmit their votes, certified, signed, '^^'"^^- sealed, and directed, as the constitution requires, to the secre- tary of the United States, in congress assembled ; that the senators and representatives should convene at the time and place assigned ; that the senators should appoint a president of the senate, for the sole purpose of receiving, opening, and counting the votes for president ; and, that after he shall be chosen, the congress, together with the president, should, with- out delay, proceed to execute this constitution. By the unanimous order of the convention, GEORGE WASHINGTON, President. William Jackson, Secretary. i.v CoNVENTiox, September ITth, 1787. Sir, 1. We have now the honor to submit to the consideration of ^^''""' '"':'"" t'"" ,1 -fj ., , „ . convention that ine United tetates m congress assembled, that constitution framed tiiecon- which has appeared to us the most advisable. president 'of ''''' 2. The friends of our country have long seen and desired, *'°"='"''' that the power of making war, peace, and ti-eaties ; that of levying money, and regulating commerce, and the correspon- dent executive and judicial authorities, should be fullv and 5 50 CONSTITUTION OF THE UNITED STATES. effectually vested in the general government of the union : but the impropriety of delegating such extensive trust to one body of men, is evident ; hence results the necessity of a different organization. 3. It is obviously impracticable in the federal government of these States, to secure all rights of independent sovereignty to each, and yet provide for the interest and safety of all. Individuals entering into society, must give up a share of liberty to preserve the rest. The magnitude of the sacrifice must depend as well on situation and circumstance, as on the object to be obtained. It is at all times difficult to draw with precision the line between those rights which must be sur- rendered, and those which may be reserved; and on the present occasion, this difficulty was increased by a difference among the several States as to their situation, extent, habits, and particular interests. 4. In all our deliberations on this subject we kept steadily in our view, that which appears to us the greatest interest of every true American, the consolidation of our Union, in which is involved our prosperity, felicity, safety, perhaps our national existence. This important consideration, seriously and deeply impressed on our minds, led each State in the convention to be less rigid on points of inferior magnitude, than might have been otherwise expected ; and thus the constitution, which we now present, is the result of a spirit of amity, and of that mutual deference and concession, which the peciffiarity of our political situation rendered indispensable. 5. That it will meet the full and entire approbation of every State, is not perhaps to be expected ; but each will doubtless consider, that had her interest been alone consulted, the conse- quences might have been particularly disagreeable or injurious to others ; that it is liable to as few exceptions as could reason- ably have been expected, we hope and believe ; that it may promote the lasting welfare of that country so dear to us all, and secure her freedom and happiness, is our most ardent wish. With gi-eat respect, we have the honor to be, Sir, your excellency's most obedient and humble servants. By unanimous order of the convention. GEORGE WASHINGTON, President. His Excellency the President of Congress. AMENDMENTS TO THE CONSTITUTION. ARTICLE I. Congress shall make no law respecting an establishment of Congress pro- religion, or prohibiting the free exercise thereof ; or abridging terSg'Nrith"" the freedom of speech, or of the press ; or of the people peace- f^LS of**' ably to assemble, and to petition the government for a redress ^P<^<^'^^< of the J. . ' o press anrj t]jg ot grievances. right of peti- ARTICLE II. "°°- A well regulated militia being necessary to the security of a Right of tiie free State, the right of the people to keep and bear arms shaU Star arm?, not be infringed. «'c. ARTICLE III. No soldier shall, in time of peace, be quartered in any house No soldier to without the consent of the owner ; nor in time of war, but in any houJl'rj'ul" a manner to be prescribed bv law. ing peace, with- '■ •' out consent, ARTICLE IV. The right of the people to be secure in their persons, houses, No search war- papers, and effects, against unreasonable searches and seizures, exc'eptoTprob- shall not be violated ; and no warrants shall issue, but upon oath.'^etr' probable cause, supported by oath or affirmation, and particu- larly describing the place to be searched, and the persons or things to be seized. ARTICLE V. No person shall be held to answer for a capital or otherwise No person to infamous crime, unless on a presentment, or indictment of aswe^/fOTa*"' grand-jury, except in cases arising in the land or naval forces, on present-''' or in the militia, when in actual service, in time of war or "'''"'.' ^'•^•', ^'^- ' cept in the hind public danger ; nor shall any person be subject for the same <«■ n''™' <'o'<^es. rn ill- ,•• n „,.„, nor to answer ottence to be twice put in jeopardy of life or limb ; nor shall for the same be compelled in any criminal case, to be a witness against e£"'' """' himself, nor be deprived of life, liberty, or property, without due process of law ; nor shall private property be taken for public use without just compensation. 52 CONSTITUTION OF THE UNITED STATES. ARTICLE VI. Assurance of In all criminal prosecutions, the accused shall enjoy the right public^ trial by to a speedy and public trial, by an impartial jury of the State Sinl? prose- and district wherein the crime shall have been committed, cutious. which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation ; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor ; and to have the assistance of counsel for his defence. ARTICLE VII. Right of trial J i|g at common law, where the value in controversy by jury insults ' .- • i i • i 11 u at common ghall exceed twenty dollars, the right of trial by jury shall be law, above the •' . , , • i 11 u lu • « ^,^ valueoftwenty preserved; and no fact tried by a jury shall be otherwise re- doiiars, etc. g3j.j^j^-„gji j„ any court of the United States, than according to the rules of the common law. ARTICLE VIII. an^d uniiluai''"' ExcesslvB bail shall not be required, nor excessive fines im- and cruel pun- ^qqqA nor cruel and unusual punishments inflicted. ishments, pro- r ' ^ hibited. ARTICLE IX. ?it?dnot°oSs: The enumeration in the constitution, of certain rights, shaU retamed''""' "°* ^^ construed to deny or disparage others retained by the people. ARTICLE X. TgaTed'etellit The powers not delegated to the United States by the con- sSi p'eo-' stitution, nor prohibited by it to the States, are reserved to the Pl«- States respectively, or to the people. ARTICLE XI. fudict" The judicial power of the United States shall not be con- *"■'• strued to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign State. ARTICLE XII. Mode of elect J The electors shall meet in their respective States, and ing the presi- . . , , r \ dent and vice- vote by ballot for president and vice-president, one oi whom. CONSTITUTION OP THE UNITED STATES. 53 at least, shall not be an inhabitant of the same State with president of the themselves ; they shall name in their ballots the person voted '"' '^*'"^'' for as president, and in distinct ballots the person voted for as vice-president ; and they shall make distinct lists of all persons voted for as president, and of all persons voted for as vice- president, and the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the president of the senate ; the president of the senate shall, in the presence of the senate and house of representatives, open all the certifi- cates, and the votes shall then be counted: the person having the greatest number of votes for president, shall be the presi- dent, if such number be a majority of the whole number of electors appointed ; and if no person have such majority, then from the persons having the highest numbers, not exceeding three, on the list of those voted for as president, the house of representatives shall choose immediately, by ballot, the presi- dent. But in choosing the president, the votes shall be taken by States, the representation from each State having one vote ; a quorum for this purpose shall consist of a member or mem- bers from two thirds of the States, and a majority of all the States shall be necessary to a choice. And if the house of representatives shall not choose a president whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the vice-president shall act as presi- dent, as in the case of the death or other constitutional disa- bility of the president. 2. The person having the greatest number of votes as vice- president, shall be the vice-president, if such number be a ma- jority of the whole number of electors appointed ; and if no person have a majority, then from the two highest numbers on the list, the senate shall choose the vice-president : a quorum for the purpose shall consist of two thirds of the whole number of senators, and a majority of the whole number shall be neces- sary to a choice. 3. But no person constitutionally ineligible to the office of president, shall be eligible to that of vice-president of the United States. INDEX CONSTITUTION OF THE UNITED STATES. A. Acts, records, and judicial proceedings of each State, entitled to faith and credit in other States, Amendments to the Constitution, how made, . . . • Appropriations by law — See Treasury, ^Wawrfer, bill of, prohibited, . . •_ • , , • ' <• /-^ Attainder, of treason, shall not work corruption of blood, or lorleit- ure, except during the life of the person attainted, B. Bills for raising revenue, shall originate in the House of Reprcsent- Bills, before'they become laws, shall be passed by both Houses and approved by the President; or, if disapproved, shall be passed by two thirds of each House, . . • • Bills not returned in ten days, unless an adjournment intervene, shall be considered as approved, C. Capitation Tax — See Tax, Census, or enumeration, to be made every ten years, . Claims of the United States, or of the several States, not to be prejudiced by any construction of the Constitution, . Citizens of each State, shall be entitled to the privileges and immu- nities of citizens in the several States, • .• • Commerce, regulations respecting, to be equal and uniform, . Congress, vested with Legislative power, • • • • ; may alter the regulations of Suvte Legislatures concerning elections of Senators and Representatives, except as to the place of choosing Senatoi-s, shall assemble once every year, . • • ', ,,.' may provide for cases of removal of Tresident and \ ico- Prcsident, <•' t> • i > may determine the time of choosing Electors of 1 resident and Vice-President, • i" t> ' • may invest the appointment of inferior officers in the 1 resi- dent alone, in the courts of law, or heads of departments, may, from time to time, establish courts inferior to the su- premo court, CONSTITUTION OF THE UNITED STATES. 55 Congress may, (with one limitation,) declare tlie punishment of treason, . . . '. may prescribe the manner of proving the acts, records, and judicial proceedings of each State, .... the assent of, required to the formation of a new State, with- in the jurisdiction of any other, or by the junction of two or more, may propose amendments to the Constitution, or, on appli- cation, call a Convention, ...... the assent of, required to the admission of new States into the Union, ......... Congress, powers of — to lay and collect taxes, duties, imposts, and excises, . to borrow money, ........ to regulate commerce, ........ to establish uniform laws of bankruptcy and naturalization, to coin money, regulate the value of coin, and fix a standard of weights and measures, to punish counterfeiting, ....... to establish post-offices and post-roads, .... to authorize patents to authors and inventors, . to constitute tribunals inferior to the supreme court, . to define and punish piracies, felonies on the high seas, and offences against the laws of nations, .... to declare war, grant letters of marque, and make rules concerning captures, ....... to raise and support armies, to provide and maintain a navy, ...... to make rules for the government of the army and navy, to call for the militia in certain cases, .... to organize, arm, and discipline militia, .... to exercise exclusive legislation over ten miles square, to pass laws necessary to carry the enumerated powers into effect, to dispose of, and make rules concerning, the territory or other property of the United States, .... ConstUulion, formed by the people of the United States, Preamble, how amended, ......... and the laws under it, and treaties, declared to be the su- preme law, rendered operative by the ratification of the Conventions of nine States, Conventions for proposing amendments to Constitution, Court, supreme, its original and appellate jurisdiction, . Courts, inferior to the supreme court, may be ordained by Congress, Crimes, persons accused of fleeing from justice, may be demanded, Art. Sec. 3 3 4 1 4 3 5 1 4 3 D. Debts, against the Confederation, to be valid against the United States under this Constitution, ..... Duties on exports prohibited, ....... on imports and exports, imposed by States, shall enure to the Treasury of the United States, .... E. Elections, of Senators and Representatives, shall be prescribed by the State Legislatures, as to time, place, and manner, . . 1 qualifications and returns of members of Congress to be de- termined by each House, 1 56 INDEX TO THE • Art. Sec. Electors of President and Vice-President, how chosen, and their duties, 2 1 and 12th amendment, shall vote the same day throughout the United States, . 2 1 no Senator or Representative, holding office under the United States, shall serve as, 2 1 Enumeration — See Census, 12 Executive Power shall be vested in a President, .... 2 1 See President. Exports — See Tax. and imports, duties on by States, to bo payable into the Treasury of the United States, 1 10 Ex post facto Law, none shall be passed, ..... 1 9 H. Habeas Corpus, writ of, can only be suspended in cases of rebellion or invasion, .......•• 19 House of Representatives — See Representatives. House — See Senate. I. Impeachment, all civil officers liable to, •2 4 persons found guiltj' by, liable to indictment and punish- ment for the offence, ....... 13 Importation of Slaces, until prohibited, a duty authorized on, after 1808, 19 J. Judges, shall hold their offices during good behavior, . . .3 1 the compensations of, shall not be diminished during con- tinuance in office, ....... 31 Judicial Power, vested in a Supreme Court, and Courts inferior, . 3 1 the cases to which it extends, ...... 32 Judicial Proceedings, records, and acts of each State, are entitled . to faith and credit in every other State, .... 4 1 Jurg trial shall be held in the State where the crime shall have been committed, ........ 32 if the crime have not been committed within a State, the trial shall be held at the place Congress shall have directed, . 3 2 Jury, trial by, secured in prosecution for all crimes, except in cases of impeachment, 3 2 and in suits at common law, where the value in controversy shall exceed twenty dollars, 7th amendment. L. Law, Supreme, the Constitution, the laws under it, and treaties de- clared to be, ......■•• 6 2 Legislative Power, vested m ConffL'ess — See Congress, ..11 M. Money shall be drawn from the Treasury, only by laws appropri- ating, 1 9 N. Nobility, titles of, shall not be granted by the United States, . 1 9 CONSTITUTION OF THE UNITED STATES, 57 o. Officers of the Senate, except their President, shall be chosen by the Senate, •■-...... i civil, may be removed by impeachment, .... 2 Order, of one House, requiring the concurrence of the other — Sec Resolution, ••••...,, \ P. Persons held to labor or service, their importation or migration into the United States, may be prohibited after ISOS, . 1 escaping from one State to another, shall be delivered np to those entitled to their service, 4 Powers, not delegated, are resers-ed to the people, or, vfhen not pro- hibited, to the States, 10th amendment. Legislative — See Congress, 1 Executive — See President, 2 Judicial — See Judicial, 3 Presents, emoluments, office or title, from a foreign king, prince, or State, to persons holding offices of profit or trust, prohib- ited, 2 President of the U. S. vested with the executive power, . . 2 shall be chosen lor four years 2 how elected, 2 qualifications for, 2 compensation of, 2 shall take an oath of office, 2 may be removed by impeachment, 2 President of the U. S., powers of — shall be commander-in-chief of the army and navy, . . 2 may require the written opinions of the heads of depart- ments, 2 may reprieve and pardon, 2 may make treaties, with consent of the Senate, . . 2 may appoint to office, with consent of the Senate, . . 2 shall fill up vacancies happening during the recess of the Senate, ......... 2 President of the United States, duties o{ — shall give information to Congress, and recommend measures, 2 may convene both Houses, or either House, ... 2 may adjourn them in case of disagreement, ... 2 shall receive ambassadors and public ministers, ... 2 shall take care that the laws be faithfully executed, . . 2 shall commission all officers of the United States, . . 2 in case of death, etc., shall devolve on the Vice-President, and on such others as may be provided by law, . . 2 Privileges and immunities of citizens of the States — See Citizens. Property shall not be taken for public use, without just compensa- sation — 5th amendment. Quorum, what shall be, for business, 1 of States, in choosing a President by the House of Repre- sentatives, 2 R. Receipts and expenditures, accounts of, to be published, . . 1 Records — See Judicial Proceedings, 4 Representatives, House of, composed of members chosen every second year, 1 qualifications of the electors of its members, ... 1 qualifications of members, 1 shall not exceed one for every 30,000, .... 1 58 INDEX TO THE Representatives, House nf — shall choose their speaker and other officers, . shall have the power of iiiipeachnient, . . . . shall be the judge of the returns, elections, and qualifications of its members, 15 what shall be a quorum of, . . . . . . .1 5 any number may adjourn, and compel the attendance of absentees, . 15 may determine the rules of proceeding, .... 1 5 may punish or expel a member, . ; . . . 15 shall keep a journal, and publish the same, except the parts requiring secrecj', ........ shall not adjourn for more than three days, nor to any other place, without the consent of the Senate, ... 15 one fifth of, present, may require the yeas and nays, ..16 shall originate bills for raising revenue, .... shall receive a compensation to be ascertained by law, privileged from arrest, during attendance, and in going and returning, except in certain cases, .... shall not be questioned elsewhere for any speech or debate in the House, ■ • shall not be appointed to the offices created, or whose com- pensations shall have been increased during the time ibr which they are elected, ...... 16 can, whilst serving, hold no office under the United States, 1 6 shall not serve as primary electors of president, ... 2 1 and direct taxes, apportioned according to numbers, . 1 2 Representation of a State, vacancies in, supplied until a new elec- tion by the Executive authority thereof, .... Resolution, order, or vote, requiring the concurrence of both Houses, (except for an adjournment,) shall be presented to the President, and undergo the formalities of bills. Revenue — See Vessels. Rights of the Citizen ieclared to he — Amend, liberty of conscience in matters of religion, ... 1 freedom of speech and of the press, .... 1 to assemble and petition, ....... 1 to keep and bear arms, ......._ 2 to be exempt from quartering of soldiers, in any house, in time of peace, without the consent of the owner ; and in time of war, unless prescribed by law, .... 3 to be secure from any unreasonable searches and seizures, 4 to be free, except in the army, navy, and militia, from answering for a capital, or otherwise infamous crime, unless on presentment or indictment of a grand-jury, . 5 Art. Sec. Rights, not to be twice jeopardized for the same offence, . . 5 not to be compelled, in criminal cases, to be a ■witness against himself, 5 not be deprived of life, liberty, or property, without due course of law, . . . . . . . _ • 5 private property shall not be taken for public use without just compensation, ........ 5 that the accused, in criminal prosecutions, shall enjoy the right of a speedy public trial by an impartial jury of the vicinage ; and the means necessary for his defence, . 6 that, in civil cases, facts tried by a jury shall only be re- examined acconling to the rules of the common law, . 7 that, in suits at common law, where the value shall exceed twenty dollars, the right of trial by jury shall be pre- served, ......... 7 that excessive bail shall not be re(iuircd, excessive fines im- posed, nor cruel or unusual punishments inflicted, . . 8 CONSTITUTION OF THE UNITED STATES. 59 Biffhts, that tlie enumeration of certain, shall not operate, con- structively, against the retained rights, ... 9 Rules, each House shall determine its own, 1 Senate of the United States, composed of two senators from each State, .......... how chosen, classed, and terms of service, .... qualifications of members, thirty years of age, nine years a citizen, and an inhabitant of the State, shall choose their officers, except the president, . shall be the judge of the elections, returns, and qualifications of its members, ........ ■what number shall be a quorum, any number may adjourn, and compel the attendance of absentees, ......... may determine its rules, . . may punish or expel a member, shall keep a journal, and publish the same, except parts re- quiring secrecy, ........ shall not adjourn for more than three days, nor to any other place without the consent of the other house, one fifth of, present, may require the yeas and nays, . may propose amendments to bills for raising revenue, shall try impeachments, their judgments only to extend to removal from oflice, and to disqualify from any other, ..... members of, shall receive a compensation, to be ascertained by law, .......... privileged from arrest, ....... shall not be questioned elsewhere for any speech or debate in the house, ......... shall not be appointed to ofiiccs of the United States, created, or whose emoluments shall have been increased during the terms for which they were elected, .... Seyiators and Representatives, elections of, how prescribed, Senator shall not be an elector of President, Slaves — See Persons held to service. Speaker, how chosen, ......... States, prohibited from — ■ entering into any treaty, alliance, or confederation, granting letters of marque, coining money, emitting bills of credit, ....... making any thing a tender but gold and silver coin, passing bills of attainder, ex post facto laws, or laws impair- ing contracts, granting titles of nobility, laying impost or duties on imports and exports for their own use, ........... laying duties on tonnage, without the consent of Cono-ress, keeping troops or ships of war, in time of peace, . " . entering into any agreement or contract with another State, or a foreign power, ........ engaging in war, unless invaded, or in imminent dano-er, new, may be admitted into the Union, . . . ° . may be formed within the jurisdiction of others, or by the junction of two or more, with the consent of Congress and the Legislatures concerned, . . . . ° . .4 60 INDEX TO THE CONSTITUTION OF THE UNITED STATES. Slates, Judges of, bound to consider treaties, the constitution, and the laws under it, as supreme, ..... 61 majority of all necessary to the choice of President, . . 2 1 each to be guarantied a republican form of government; protected against invasion ; and secured, upon application, against domestic violence, ...... 44 Supreme Churl — See Court. T. Tax, capitation or direct, shall be laid only in proportion to census, 1 9 Tax, on e.xports from a State, prohibited, ..... 1 9 Taxes, direct, shall be apportioned according to representation, . 1 2 Territory, or property belonging to the United States, Congress may make rules concerning, ...... 4 3 Teal, religious, shall not be required, 6 3 Titles — See Nohilily 1 9 TWe, from foreign State — See Prese?!( 19 Treason, defined, .33 two witnesses, or confession, necessary for conviction, . 3 3 punishment of, may be prescribed by Congress, with one limitation, 3 3 or other crime, persons charged with in one State, and flee- ing into another, shall, on demand, be dehvercd up, . 4 2 Treasury, money drawn from, only by appropriations, ... 1 9 Treaties, the supreme law, 6 2 V. Vacancies, happening during the recess of the Senate, may be filled temporarily by the President, 2 2 in representations in Congress, how filled, ... 12 Vessels to enter, clear, and pay duties in Ike States in which they arrive, or from which they depart, ..... 1 9 Vice-President of the United States to be President of the Senate, excent when exercising the office of President of the United States, 18 how elected, 2 1 and 12th amendment, qualifications for, 1 2th amendment. shall, in certain cases, discharge the duties of President, . 2 1 may be removed by impeachment, 2 4 Fo/e o/ one 7/o«se, requiring concurrence of the other, . . 17 See Resolution. W. Warrants for searches and seizures, when and how they shall issue, 4 th amendment. Witness, in criminal cases, no one compelled to be against himself, Sth amendment. REVISED CODE. STATE OF NORTH CAROLINA. IN THE YEAR OF OUR LORD ONE THOUSAND EIGHT HUNDRED AND FIFTY-FOUR. AN ACT FOR REVISING AND CONSOLIDATING THE PUBLIC AND GENERAL STATUTES OF THE STATE. Whereas, it is expedient tiiat the Public and General Statutes of the State should be consolidated and arrano-ed in proper titles, chapters, and sections; and that the whole body of the laws should be rendered as concise and intel- ligible as possible : — Therefore, Be it enacted by the General Assembly of the State of North Carolina, and it is hereby enacted by the authority of the same, in manner and form following, that is to say : — 64 ABATEMENT OF SUITS. [Chap. 1. CHAPTER 1, ABATEMENT OF SUITS. Section 1. Suits not to abate by death or mar- riage of parties, but may be revived within two terras thereafter. In certain cases longer time allowed for revivor. 2. Husband made party, to give secu- rity for costs. 3. On marriage of yemc defendant, hus- band made party. 4. Not to abate by death of executor or administrator, plaintiff or defendant. 5. Action of ejectment, on death of de- Section fendant, may be revived against his heirs or devisees. 6. Court may appoint guardians for in- fant defendants in ejectment. 7. How sei-vice to be made on heirs or devisees out of State. 8. Suits allowed for injuries where death ensues. 9. Same subject. 10. How brought — Rule for assessing damages — Time for bringing suit. 11. Who entitled to damages. Suits not to 1. No action, suit, petition, bill in equity, or information in abate by death ^ of a bill in equity, or other proceeding, of whatever or marriage of """"'^ '^ i.;'' t„ j„.„ parties, but nature, brought to recover or obtani money, property, or dam- within^vo'"''"' ag^S' or to have relief of any kind whatever, whether the terms" there- same be at law or in equity, except suits for penalties, and '''''^'■- for damages merely vindictive, shall abate by reason of the death of either party, or by the marriage of the plaintiff /ewe, but the same may be carried on by the heirs, executors, and ad- ministrators of the deceased party, and by the husband of the In certain femc plaintiff: Provided, however, that application be made to tor'aUowcd the court wherein the process is pending, within two regular fOT rovivOT°— terms of the court after such death or marriage ; except that, 2* 3^10 ii'"^'in case of a contest about the grant of administration, or the ' ' ' ' probate of the will of such deceased person, such action, suit, petition, bill in equity, information, or other process may be carried on, on ap]:)lication at the term next after the final deter- mination of such contest. Husband made 2. The husband of the feme plaintiff shall, on becoming a leluut''ir'^ party, execute his bond, with security, for the payment of costT-^R.'^S. costs, as in other cases of failure to prosecute with effect, and " ' ° "" thereupon the security originally given for that purpose shall be vacated : And, on the bond so given, like remedy shall be hud, and in like manner, as on bonds executed on the issuing of writs. On marriage of, 3. Whenever a/cOTC sole defendant shall marry, pending the {Indmade ' suit, her husband may be made party defendant, if the plain- party. -R.S. tiff shall so clioose, and the suit afterwards shall proceed 0. 2, s. 5. against such J'ctiie and her husband. Not to abate by 4. No actiou, suit, or other proceeding, brought as aforesaid, death of execu- c. 2, s. 5. Chap. 1.] abatejient of suits. 65 to which an executor or administrator is party, plaintiff or de- tor or adminis- fendant, shall abate by the death of such executor or adminis- de'ft"l''R's' trator, but the same may be revived by or against the admin- cf2,'s. 6.' istrator de bonis non, or the executor of the executor of such deceased party, under the rules and regulations above pre- scribed. 5. No action of ejectment shall abate by the death of the Action of eject- defendant ; but the same may be revived bv serving on his T'J'v™ ''"'"'* I'll J - , , ,.''... ^ or deft., may neirs at law, or devisees, or the guardian, withm two terms be revived after his decease, a copy of the declaration filed in said ac- hffr'"or de tion, together with a notice to the heirs or devisees, or their vSees?—R. s. guardian, if they be minors, to appear and defend said suit, "■ ^' '• ^■ and after such service the suit shall stand revived, and shall be proceeded on in the same manner as if the defendant were living. 6. Whenever any of the heirs at law or devisees of such Comtraayap- defendant, to whom the land in dispute shall descend or be point guardians devised, shall be minors without guardian, the court wherein in'ejectmen't!^ the said suit is pending shall, upon application, appoint a ^- ''^ <^- 2, s. s. guardian to defend the suit on their behalf. 7. Whenever any of the heirs or devisees shall reside out How service to of the State, the sheriff, or other officer, to whom the declara- be made on tion and notice shall have been issued, shall state the fact in seeroutrfThe his return; whereupon, an advertisement of such notice shall State. — K.S. be made for six weeks in some newspaper, and thereupon they ^' ^' ^' ^' shall be deemed to have been duly served with a declaration and notice, and the suit shall proceed accordingly. 8. Whenever the death of a person shall be caused by the Suits allowed negligence or default of any railroad or steamboat company, [°hg°J'Ji™f, or of any steamboat or stage-coach proprietor, in this State, ensuS, iS54, c. and the neglect or default is such as would have entitled the ^^^ '• ^' 2. 3, 4- party injured to maintain an action and recover damages in respect thereof, if death had not ensued, then and in 'every such case, the corporation which would have been liable, if death had not ensued, shall be liable to an action for dam- ages, notwithstanding the death of the person injured. 9. Whenever the death of a person shall be caused by the Same subject. wrongful act of another person, and the wrongful act is such as would have entitled the party injured to maintain an ac- tion and recover damages in respect thereof, if death had not ensued, then and in every such case, the person who would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the per- son injured, and although the death shall have been caused under such circumstances as amount in law to felony. 10. Every such action shall be brought by and in the name How .service to of the personal representative of the deceased, and the amount J^"'^ loriusstss- recovered shall be disposed of according to the statute for the '"S dam^g-^s. distribution of personal property in case of intestacy ; and in every such action the jury may give such damages as they shall deem fair and just, with reference to the pecuniary in- 6' AGRICULTURE AND GEOLOGY. [Chap. 2. Time for bring- jury resulting from such death: Provided, that every such ing suit. action slmll be commenced within one year from the death of such deceased person. "WTio entitled to 11. The amount recovered in every such action shall be damages. £qj ^j^g exclusive and sole benefit of the widow and issue of the deceased, in all cases where they are surviving. Sect. 1. What suits may he revived: overflowing lands, i Hawks, 73; on official bond, on death of relator, 3 Ire. 294. Wliat may not: scire facias v. sheriff, 13 Ire. 483; waste, 3 Mur. 511; harboring slaves, Conf. R. 72, lb. 95; seduction, 4 Hawks, 133. i/uio revived: death after appeal, 1 Hawks, 16. By whom: tresjmss on lands, 3 Dev. 153. Til vhal time: i Ire. 9, 1 Mur. 411, 4 Ire. 79, 2 C. L. R. 249. How abated if not revived, 1 Jlur. 161, 8 Ire. 322. Sect. 3. 1 Mur. 161. Sect. 5. Death of lessor of plaintiff, 13 Ire. 489, lb. 43 ; death of defendant, i Ire. 79, 11 lb. 121, Bus. 52. CHAPTER 2. AGRICULTURE AND GEOLOGY. OECTION 1. North Carolina State Agricultural So- ciety incorporated — Amount of prop- erty which may be held. 2. Shall elect president and other offi- cers. 3. Shall provide a place for holding an- nual fairs. 4. Fifteen hundred dollars per annum ap- propriated on condition. 5. Money how applied. 6. County societies how formed — What amount of property they may hold. 7. How organized — to continue during the will of the legislature. 8. When organized, it shall be certified, and certificate filed in clerk's office — Entitled to fifty dollars from the public treasurer on certain coudi- Section tions — Only one society in a county entitled. 9. Funds of society to be appropriated in premiums, etc. 10. Shall transmit to the public treasurer annual statement of money received from State, and from members, and of expenses. 11. Shall annually publish statement of their experiments, reports, etc. 12. Secretary to keep a record of pro- ceedings. 13. Governor to appoint a geological sur- veyor. 14. Duty of the surveyor. 15. Five thousand dollars per annum ap- propriated for survey. 10. Surveyor to deliver lectures. North Carolina 1. TiiE North Carolina Agi-icultural Society as organized f '"'f Soifirt "'" ^y ^ voluntary association, on tlic eighth day of October, a. D. incorporated. One thousand eight hundred and tifty-two, at the city of Raleigh, shall be and the same is hereby incorporated under Amount of the name and style of " Tlic North Carolina Agricultural So- may beheld.'— ciety," and may take and hold real and personal estate of the 1852,0.1,8.1,3. value of fifty thousand dollars and no more, for the purposes hereinafter specified. Cm\.P. 2.] AGRICULTURE AND GEOLOGY. 67 2. The said society shall annually elect a president, four Shall elect vice-presidents, treasurer, recording "secretary, correspondino- f'f '''''"' """^ secretary, and such other officers as may be deemed necessary^ i8ltc!f,7X all of whom shall hold their offices until successors are ap- pointed. 3. It shall be the duty of the North Carolina Agricultural Shall provide a Society to provide a place for the holding of annual fairs, in ?!""„ '°''ij°''^" order that the citizens may be encouraged by exhibitions, pre- fous".""" rniums, and other means to develop and improve the produc- tions of agriculture, and every species of native industry: and to this end, and for these great and valuable purposes, and to no other, shall the said society apply all the funds which by any means they may acquire. 4. It shall be the duty of the public treasurer to pay to the Fifteen hun- treasurer of the North Carolina Agricultural Society, on the '''''''' '•""""P^' first Monday of October, during each and every year, out of pl-iS ^00^ any moneys not otherwise appropriated, the sum of fifteen '''"''"• ~"^*' hundred dollars, to be disposed of in the payment of pre- "' ^' '' ^' miums, as hereinafter directed: Provided, however, that the treasurer of the said society shall first produce a certificate from the president thereof, showing that during the past twelve months the like sum has been raised by the said so- ciety for the same purposes. 5. The money hereby appropriated shall be applied, under Money hon-np. the dn-ection ol said society, to the payment of premiums !,'",'V^*^*''=- upon agricultural productions, implements of husbandry, and ''' ' domestic animals, and to such other purposes as may, in the judgment of said society, be calculated to advance the in- terest of agriculture and manufactures. 6. Any number of resident persons, not less than ten, may County socie- associate together in any county, under written articles of'"''''"^ association, subscribed by the members thereof, and specilyino- '°'™'"'" the object of the association, to encourage and promote a^^ri^ culture, domestic manufactures, and the mechanic arts, under such name and style as they may choose, and thereby become a body corporate with all the powers incident to such a body, What amount and may take and hold such property, both real and personal, "f P^perty not exceeding ten thousand dollars in value as may be needful -i'ssl^i'c. 2 s! to promote the objects of their association. i- ^■ 7. Such society shall be organized by the appointment of a Ho«- organized president, Uvo vice-presidents, a secretary and treasurer, and T'? rthL"" m such other officers as they may deem proper, who shall there- Tth^i%^Z atter be chosen annually, and hold their places until others l^'T^^^^' ■=• shall be appointed. And the society may from time to time, "' '' ' on such conditions as may be prescribed, receive other mem- bers of the corporation, which shall continue as lono- as there are ten members, during the will and pleasure of the legisla- ture. ^ 8. When such society shall be fully organized, the orgauiza- When or^an- tion thereof shall be certified by the president and. signed by j""'- i'.^"^'" the secretary to the county court, and thereupon the court mJcmm ate 68 AGRICULTURE AND GEOLOGY. [ChAP. 2. filed in clerk's shall Order the same to be filed in the office of the clerk and office. there kept; and the clerk, under the seal of the court, shall certify a copy of the same, together with the order of the court, to the treasurer of the State, who, if by the said certifi- cate, it shall appear to him that such society has been duly organized, according to this chapter, and it shall likewise be made appear to him by the certificate of the treasurer of said society, signed by the president, and certified by the clerk of the court under the seal thereof, that the sum of fifty dollars has been actually paid to said society by the members thereof, within one year preceding, for the sole benefit of such society, Entitled to S50 shall pay to the treasurer of said society, fifty dollars, out of ur™on''certaiu th*^ public treasury, for the like sole use and benefit; and such conditions. payment shall be annually made by the treasurer of the State on the terms and conditions above and hereinafter specified : Only one soc'y Provided, however, that only one society for each county shall county'!-is52, be entitled to the benefits of this chapter : and the county c. 2, s. 3, G. ' court in case of a conflict between two claimants, shall deter- mine which shall be the corporate body for the county. Funds of soc'y 9. All moneys SO subscribed, as well as that received from Sed^in''piemi-*^'^6 State treasury as herein provided, shall, after paying the Iiras, etc.— necessary incidental expenses of such society, respectively, be 1852, c. 2, s. 7. annually paid out for premiums awarded by such societies, in such sums, and in such way and manner as they severally, under their by-laws, rules, and regulations, shall direct, on such live animals, articles of production, and agricultural imple- ments and tools, domestic manufactures, mechanical im- plements, tools, and productions, as are of the growth and manufacture of the county, and also on such experiments, discoveries, or attainments in scientific or practical agriculture, as are made within the county wherein such societies are respectively organized. Shall transmit 10. Each agricultural society, entitled to receive moncy from fnnua'l'stl'ttm't the State treasury, shall, through its treasurer, transmit to the of money rec'd treasurer of the State, in the month of December or before, a membCT^s^^ind statement of the money received from the State, together with ofexperiments. the amount received from the members of the society for the — 1852, c. 2, s. p^^^^jji^g year, a statement of the expenditures of all such sums, and the number of the members of said society. Shall annually 11. Each agricultural society, receiving money from the STcnteVtheir ^tate as aforesaid, shall, in each year, publish, at their own experiments, expense, a full statement of their experiments, and improve- I852"c' 2**i"'9 ments, and reports of their committees, in at least one news- ""' "'" ' paper of the State; and evidence that the requirements of this chapter have been complied with, shall be furnished to the State treasurer, before he shall pay to such society the said sum of fifty dollars for the benefit of such society for the ne.xt year. Sec'ytokcepa 12. The secretary of such society shall keep a fair record of ceed^ngf-''™" its proceedings in a book jirovided for that purpose, which may 1852, c" 2, s. 6.- be read in evidence in suits wherein the corporation may be a party. Chap. 3.] amendment of process, etc. 69 13. The governor shall appoint a suitable person to conduct, Gov. to appoint under the supervision of himself and the board of literature, a.flfQ^''"^]^^^''-' geological, mineralogical, botanical, and agricultural survey 'of ' "' ^^' '' ^' the State. 14. The person appointed shall examine and survey each Duty of the and every county of the State and ascertain the different geo- igiT^^gT logical formations of each county and section of the State; " '"' '''' ' the nature, character, and value of its minerals ; the nature and character of its soils, and the best mode of improving the same ; the nature and kind of its productions, and thei? po- sition and relative value ; its facilities for manufactories ; the extent and value of its water power ; the character and value of its botanical productions; the character and value of its timber; and all other facts connected with the subjects of geology, mineralogy, botany, and agriculture which may tend to a full development of the resources of the State ; and such person is authorized to employ as many proper agents and assistants, to be approved by the governor, as may be neces- sary to enable him speedily and successfully to accomplish the objects committed to his charge; and he shall, from time to time, communicate to the governor, to be by him communi- cated to the legislature, a report or reports, in writing, settino- forth fully the results of his survey ; which reports shall be published under the supervision of the governor and board of literature. ^'^'c'^^^ expenditures incurred by said survey shall not ex- S5,ooo per ann. ceed five thousand dollars per annum, to be paid by the public '!PP™P'"'a'e'l treasurer, upon the warrant of the governor, out of anywVoTZ'az^.s. moneys in the treasury not otherwise appropriated. 16. The person making such survey shall deliver lectures Surveyor to de- upon the subjects committed to his charge, in the villao-es I'L^'n ''"'""'®'- through which he shall pass: Provided, that he shall not ""*' '■''''• ■•• thereby delay his other duties. CHAPTER 3, AMENDMENT OF PROCESS, ETC Section 1. AU proceedings may be amended be- fore judguieut. 2. Adverse party may answer amend- ments in substance. 3. Formal defects may be amended after judgment. 4. Keturns of officers, etc., may be amended in matters of fonn. 5. Certain defects cured after verdict. 6. Sucb and like defects to be amend- Sectiox ed, etc., in whatever court the record may be. 7. No amendment to be made without order of court. 6. On demurrer, formal defects disre- garded, unless specially expressed. 9. And may be amended. 10. The provisions of this chapter shall extend to all actions and proceed- ings in any court of law. 1. The court in which any action shall be pendin", shall All proceedings have power to amend any process, pleading, or proceeding in '"''y '''= =""^"3- 70 AMENDMENT OF PROCESS, ETC. [ChAP. 3. ed before jntig- such actioii, either in form or substance, for the furtherance of ™«"*p^- ^•'=- justice, on such terms as shall be just, at any time before judg- ment rendered thereon. Adverse party 2. If such amendment be made to any pleading in matter Sidments in °'^ substance, the adverse party shall be allowed an opportu- snbstiiuce.— E. nity, according to the course and practice of the court, to an- S. c. 3, s. 1. g-^ver the pleading so amended. Formal defects 3. After judgment rendered in any cause, any defects or may be amend- imperfections in matter of form, contained in the record, plead- ed atter.iudg- ^ f j_ XL V • U ment.— E. S.c. ings, process, entries, returns, or other proceedings in such ^' *• ^- case, may be rectified and amended by the court in affirmance of the judgment, so that said judgment shall not be reversed or annulled; and any variance in the record from any process, pleading, or proceeding had in such court, shall be reformed and amended according to such original process, pleading, or proceeding. Eetumsofoffi- 4. All returns made by any sheriff or other otTicer, or any r'^ameudeTr *^°"'"t> °^ Subordinate tribunal, to any court, may be amended m\tt"rrof '° in matter of form, by the court to which such returns shall be form.— E. S. c. made, in its discretion, as well before as after judgment. Certain defects 5. When a verdict shall have been rendered in any cause, to-E^'s^'^'^' the judgment thereon shall not be stayed, nor shall the judg- 3, s 5. ' ' ment upon such verdict, or any judgment upon confession, default, nihil dicit, or non sum informatiis be reversed, impaired, or in any way affected by reason of the following imperfec- tions, defects, matters, or things, or any of them in the plead- ings, process, proceedings, or record, namely : for want of any writ, original or judicial ; for any default or defect in process, or for misconceiving any process, or awarding the same to a wrong oflScer, or for the want of any suggestion for awarding process, or for any insufficient suggestion; for any imperfect or insufficient return of any sherifl' or other officer ; or tliat the name of such officer is not set to any return actually made by him ; for any variance between the original writ, bill, plaint, and declaration, or between either of them ; for any misplead- ing, or miscontinuance or discontinuance, insufficient plead- ing, or jeofail, or misjoining of issue ; for the want of any warrant of attorney by either party; for any party under twenty-one years of age having appeared by attorney, if the verdict or judgment be for him; for the want of any allega- tion or averment, on account of which omission, a special demurrer could have been maintained ; for omitting any alle- gation or averment of any matter, without proving which, the jury ought not to have given such verdict; for any mistake in the name of any party or person, or in any sum of money, or in the description of any pro]5erty, or in the reciting or stating any day, month, or year, when the correct name, time, sum, or description, shall have been once rightly alleged in any of the pleadings or proceedings ; for a mistake in the name of any juror or officer; for any informality in entering a judgment, or Chap. 3.] amendment of process, etc. 7I making up the record thereof, or in any continuance or other entry upon such record; for any other default or negligence of any clerk, or officer of the com-t, or of the parties, or their counsellors or attorneys, by which neither party shall have been prejudiced. 6. The omissions, imperfections, defects, and variances, in Such and the precedmg section enumerated, and all others of the like ''^"^ '^"^'"'^^ '" nature, not being against the right and justice of the matter et^Xt'er ot the suit, and not altering the issue between the parties or ?"™"'''J ™''y the trial, shall be supplied and amended by the court, where ^.V' *"■ "' ^' the judgment shall be given ; or by the court into which such judgment shall be removed by writ of error or appeal. 7. No process, pleading, or record shall be amended or im- No amendment paired by the clerk or other officer of any court, or by any '« *"' "■"!» other person, without the order of such court, or some other ofcourt-R's court of competent authority. c. 3, s. 7. _ 8. When any demuiTer shall be entered in any suit, and On demunei-, issue be joined thereon, the court shall proceed and l2Sjr^^^^^^^^^^ ^Sp;Xt:'^%S!^:l^::^:i^tr^^ Ib.425,2 Jones, as, B„s. nincli court mm amend, 5 Ire. 9, 2 lb. 457, 1 D. & B. 377, 2 Dev E50 Leave to 72 APPEALS, ETC. [Chap. 4. CHAPTER 4. APPEALS, AND PROCEEDINGS IN THE NATURE OF APPEALS. Section 1. Appeals allowed to parties from coun- ty to superior court on giving security. 2. Also granted: 1. From order appoint- ing or removing guardian. 2. On probate of wills and granting lettei-s of administration. 3. From orders establishing, etc. roads and ferries. 3. Clerk of county court to file a trans- cript in superior court. Appeal to stand for trial at first term, when. 4. Appellant may procure and file tran- script. 5. How to proceed when vacancy in superior court clerk's office. 6. If appellant fail to file transcript, ap- pellee may have judgment affirmed with double costs. 7. After appeal clerks of county courts may issue subpoenas for witnesses. 8. Defendant in actions of debt, cove- nant, or assumpsit, appealing for de- lay, to pay additional four per cent, interest. 9. Plaintiff appealing and not recover- ing more to have no costs, but may be ordered to pay costs. 10. Bonds for appeal and prosecuting suit to be sent up as part of the record, and judgment entered upon them. 11. Appeal not dismissed for want of form. 12. Clerk of superior court to give a receipt for the transcript, and in dorse day of delivery. 13. Shall issue subpoenas, if required. 14. Penalty of one huudred dollars on Section clerks failing in their duty in regard to appeals. 16. Clerks of superior court to take se- curity of persons suing writs of recordari. 16. Clerk of county or superior court to take security of persons suing out certiuran. 17. Superior courts may grant writs of error. Proceedings on them. Shall render final judgment and issue exe- cution. 18. Time for bringing writs of error. 19. Proviso for persons under disabilities. 20. Security to be given. 21. Appeals allowed from superior to supreme court, on giving security. Summary judgment. Proviso for insolvent convicts. 22. Supreme court on appeal, to render judgment upon inspection of the whole record. 23. Appeals allowed at discretion of the court from interlocutory judgments at law and in equity. 24. In such ca.se the whole cause not to be removed; may proceed with the residue. 25. On appeals to supreme court clerk and clerk and master to file tran- scripts. 20. On failure of clerk appellant may: — on his failure, appellee may file it or appellee may obtain certificate of such failure and recover double costs. 27. Any defendant, when there is more than one, may appeal. Appeals allow- 1. EvERY free person, whether plaintiff or defendant, who frim county to shall be dissatisfied with the sentence, judgment, or decree of su^r court on the county court, shall be entitled to have, unless the same be fil'^KfT'i's' expressly forbidden by law, an appeal therefrom to the superior 1. ■■'''■'■ court of law of the county wherein was held the said county court ; but before obtaining the same, the appellant shall enter into bond, with sufficient security for prosecuting the same with eil'ect, and for performing the judgment, sentence, or decree which the superior court may pass or make therein against him. Also from order 2. Appeals shall likewise be granted, upon the terms alore- appointing or gaid^ jn the following cases: — (1.) To any person who may CnAP. 4.] APPEALS, ETC. >jo consider himself agg,-ieved by an order appointing, or refasin>""='""" ol an orphan or person non compos mentis. (2.) To any pei^ ^?nls'™XV^[ son propounding tor probate or contesting any will, or to any '-"^ST pcrson c airn.ng the right to administer the estate of any intes^ rtrr^r^ tate. (d.) i^rora judgments on petitions for establishin<^ ferries '•""^'i'^i'in?,eto., laying out, altering, or discontinuing public roads. ' ZTJ^VZ nn'h^ T7 T ''''P'?' '^'^'' ^' granted from the jitdgment *•,">> ' V of law r, °1 f ?r ^"^d quarter-sessions to the superior'court o^^"^;^ o law, It shall be the duty of the clerk of the county court to '^""'--'r" ■" file a transcript of the record of the suit, on or befoie the first ^"P^™"^ <=»""• day of the next regular term of the superior court, if there shall . be ten days between the last day of the next regular term of the said county court and the next term of the superior court, and the appeal shall stand for trial at the said next term of Appeal to the superior court; but if it shall so happen that there shall n^'!!'"'"'- '"'^ be less than ten days, then the clerk shill fil^ +1,1 <- ^"ere_ snail „,,,,ttenn +ii<> v„ J c ;.y-) i"tii uit cicik stiall tile the transcript of when.— K.s.c. lelnfih ^^°'"'='^^'^'' °" o"- before the first day of the second '■ ^- ^■ tei ra of the superior court next after the appeal \Ji fvl?^^'"° /'• ^^^ Pffceding section shall prevent the appel- Appellant may lant trom applying to the clerk of the county court for a tnn l^™'^"'''' ^"^ an"fo„1af:,r,r;''"'"T ^''''''' ^^'^^" be,^i.r;ditrya?t*e\::ilV.-r:.ts. record^nf n S''^"^"''' *"• ™^'^'° "P ^ f"ll ^»d perfect*" lav afl I fi F°«^-dmgs in the cause; and within ten days afei the final adjournment of the term in which the cause shal be heard, give an attested copy of suJh record with the taxation of all costs accrued, to said appellant if required; and shall indorse on said copy the day ofda^s on wEm • f^ 'uT^r^^T ^'''' demanded, and^IledIyo wh c 1 It shal be delivered, and sign his name as clerk thei^to- and the appelant shall file the same on or before the fiSda; of the term of the next superior court, under the like restiie- tions and provisions as in the preceding section cleioJ riT'nne'-''"''"'! ^^all have happened in the office of How to proceed clerk of said superior court, so that the appellant cannot file the -'"'» ™™-y transcript of the record within the time prescribed, on his maE HeS'-'r^iT" mg It appear to the satisfaction of the court to whidi the appeal ^^^^tZ IS returnable that he had made application to the cle of'tTe coun y court for a transcript of the record, within time to have filed the same within ten days before the sitting of the superior court the transcript of the record shall be filed h. the said coui" and the cause shall stand for trial at the succeeding term ' ne!iec^ ?o file 't?'' '"* '''''"'' ^^'' ^'"""^^"P^ in appeal, and if appellant f,.i, neglects to file the same as required by law, or shall fail to *" «'^ "■""- appear and prosecute his appeal, the appellee shall he nntVfii ^^^'ii'^^Pf "^^ to rlermnrl f,-^^ +1 i i ' "'''"<- 'tpptlice .snail be entitled ni;n-, und have lo aemancl trom the clerk a copy of the record and fi|p th,..i»'is't affirmert i^^tottS Wr aj^ir* '^ ^ffi-d,with double-- Summon\vS' °^ •'''' n"""*^ ""'"'^^ "^^ i^^'"'' subpcrnas to AOer appeal summon witnesses in all cases of appeal, returnable to the '■'''^r'" '°"°'^ iji » 1 ; iv^ iii^ courts may 74 APPEALS, ETC. [ChAP. 4. issue subpoenas same term of the superior court of law at which such appeal for witnesses.— g^^\\ ^e for trial. u'ef-'unac'tions 8. When the defendant in an action of debt, covenant, or of debt, cove- assumpsit, shall appeal from the judgment of the court of sumpit.l'ii- pleas and quarter-sessions, to a superior court, and sliall not, peaiinsforde- ^y^^y^ the trial thereof, diminish the sum recovered in the court dion'aUpi.ft.' of pleas and quarter-sessions, the said superior court, if it interest.— K.S.^^j^j^hj^t j-^g appeal was taken for the purpose of delay, *■ *' '■ ' shall give judgment for the plaintiff, not only for the amount recovered "in said court, but also for the sum in addition thereto of four per centum per annum on the principal sum recovered, from the time of judgment in the inferior court to the time of entering the same in the superior court, which additional sum shall draw no interest. Plaintiff ap- 9 When the plaintiff shall appeal from the court of pleas ?eeovIing'^°°' and quarter-scssions to the superior court, and shall not more to have recover a greater sum than was recovered in the court of pleas mxy' beordered and quarter-sessions, besides the interest accrued since the topay costs.— fQ].^jejjuf|gnient, he shall not recover the costs of the appeal, E. S. c. 4, s. 9. ^^^ ^j^^j^ ^^ ^.^y^^ ^^ ^j^^ discretion of the superior court, to pay the same. Bonds for ap- 10. Bonds taken for the prosecution of appeals shall make peal and prose- g^ p^^j.^ ^f ^\^q record sent up to the superior court, on wliich be'sent'up as judgment may be entered against the appellant and his sure- part of the^rec- ^-gg^ jj-j ^^ ^ases whcre judgment shall be rendered agamst the entered upoi' appellant; also in cases of appeal and certiorari from the them.— R.S. c. ^.Q^-j^y ^^ ^^e superior court, the bond given for the prosecu- 4, s. 10, 15. ^.^^^ ^^ ^j^^ ^^^.^ ^j^^jj ^^^|.^ ^ p^j.j. ^^ ^jjg record, and be trans- mitted therewith. Appeal not dis- 11. No appeal shall be dismissed for want of form, if the rais,=ed for want gom-j; gijall be of Opinion that there appears to be sufficient c"r™il^' ^' matter of substance in the transcript of the record and pro- ceeding to enable the court to proceed thereon. Clerk of sup'r 12. "The clcrk of the superior court, upon receiving a tran- ceipt^fol^ran's. script of the record and proceedings in any suit, brought iip by and indorse appeal, shall, if required, give a receipt for the same, and im- ET"4,'r?2: mediately indorse thereon the day when it is delivered. Shall issu'e sub- 13. The clerk of the superior court, upon the filing of the qred.-K."s. transcript in appeal, shaU, if required, issue subpcenas for wit- c. 4, s. 13. nesses, to attend at the term when the cause shall stand for trial. Penalty of sioo 14. If the clcrk, either of the superior or county court, shall "ngfdutyt fail to perform any of the duties prescribed to him, in this regard to ap- chapter, he shall pay one hundred dollars to the party appcal- 4,'s!'il-m2; ing, and shall further be liable to an action on the case on be- e! 1, s. 2. ' half of any person injured by his neglect of duty. Clerk of sup'r 15. Every person obtaining a writ of re cor dari facias loque- cur'tVof DcT" f(^m, or writ of false judgment, to remove proceedings had be- son.. suing forc a justice or justices of the peace to a superior court, shall ar''l'l''s7t execute, before the clerk of the superior court, at the time of riu. " ■ '■ ' obtaining the same, a bond payable to the adverse party, with Chap. 4.] appeals, etc. 75 sufficient security, for the payment of the judf^ment and costs which may be recovered against such person : On which bond, as likewise on the bonds taken on obtaining a certiorari or writ of error, judgment may, on motion, be entered against the principal and sureties therein, in the same manner, and under like circumstances as judgment is rendered on appeal bonds. 16. Where writs of certiorari are directed to the county Clerk of co. or court, the clerk of said court, or of the superior court, shall t",Pe''™"5 *!' take security in the same manner, and under the same regula- of pireons'su. tions that security is taken on appeals from the county to the '"f.flV's"'" superior court. 4_ s.'ie " ' "'" 17. The superior courts shall have power to grant writs of Sup'r courts error for correcting the errors of any inferior court, and the "'.''>' S'''"t"'->ts party praying such writ, before the same shall issue, shall Proceedings on assign error ; and if upon argument of any writ of error, or 'Jj'""- trial of any appeal, from any inferior court, the judgment or fin'u'judgment decree of the inferior court shall be reversed, the superior ""''.'*'"'' '"''?- court shall grant judgment, or make such decree thereupon, as c.'Ts'.Tt''' "' should have been made or entered in such inferior court, and may issue execution thereupon without granting a writ oi pro- cedendo : And, to prevent the obtaining of writs of error by surprise, the party praying such writ in a civil cause shall give notice in writing to the adverse party, at least ten days before motion, of his intention to move for such writ, and no such writ shall be granted without affidavit of such notice. 18. No writ of error shall be allowed, or prosecuted for any Timeforbrin- matter-of-fact or error in law, upon any judgment rendered in '"§ ^^'"ts of e?- any of the courts, but within five years next after the entering Tir^o ^" "' *' such judgment, and not after. o • . • 19. If any person, entitled to prosecute a writ of error, be. Proviso for per at the time of his right to bring such writ, within the age of ^'"?*. V'^sr dis- twenty-one years, noti compos mentis, imprisoned, or out of the s^c!'4Ts7"i9: State, then such person may bring a writ of error provided he bring the same within two years after being of sound memory, at large, returned into the State, or of age, as other persons having no such impediment might have done. 20. Every person who may bring a writ of error shaU exe- securitv to be cute bond, with good security, payable to the adverse party, g"'en.-R. s. to abide by, perform, and fulfil the judgment which shall be "' *' "' "' given therein. 21. No cause shall be transmitted to the supreme court Appeals aliow- irora the superior court of law, but on an appeal of one of the ^'^ *™™ »"?''' parties from tiie sentence, judgment, or decree of said supe- ^uT'oT'iv- rior court, unless the same be expressly authorized by law '"§ ■'e<='"-'V-— And such appeal may be had in any cause, either civil or sumnmrv- '■''''■ criminal, on giving bond and adequate security to abide the J^'^s'"''"'- sentence, judgment, or decree of the supreme court; which bond may be proceeded on to judgment by the supreme court, in the same manner as bonds in the case of appeals from the county to the superior court: Provided, however, that free per- Proviso for in sons convicted of capital felonies and sentenced to die, who '?'!""' ='^" 76 APPEALS, ETC. [ChAP. 4. are vinable to give such security, may appeal without it, if the court, before whom the cause is tried, shall allow it. Supreme couvt, 22. Appeals shall be allowed from any final judgment, sen- on appeal, to ^g^^e, or decree of the superior court of law, court of equity, render ludgmt ' ^ i , • j • f i „ uponmspcc- or court of Oyer and termmer; and m every case ot sucli ap- tion of the neal. the supreme court shall render such sentence, judgment, whole record, r' I . , i-i.iii R. S. c. 4,s.22. or decree as, on uispection of the whole record, it shall appear to them ought in law to be rendered thereon, and may cause the same to be enforced and executed by any proper process. Appeals allow- 23. The superior court may, whenever it shall be deemed ed at discretion proper, allow an appeal to the supreme court from any intcr- 01 the court ri', ri i . .' from interiocu- locutory judgment, sentence, or decree at law or m equity, at i^windfn e'"' the instance of the party dissatisfied therewith, upon such R.*^S*c. v.'^i'i. terms as shall appear to the court just and equitable; and the judge allowing the same, shall direct so much only of the record and proceedings in the cause to be certified to the su- preme court, as may be judged necessary to present the ques- tion or matter arising upon such appeal fully to be considered by the said court. Insnchcase 24. The allowance and prosecution of such appeal shall ^'"^r'nouobe "°* ^^ deemed in law to remove the record of the cause; and reraOTed; may the court whence the appeal is taken, notwithstanding the ap- T^iStdue — P*^^l' '^^y make all necessary orders for preparing the cause R'.V.'c.'irs-S^. for trial as fully as if the said appeal had not been taken. On appeal to 25. In every case of appeal to the supreme court, it shall Tk '"Mcierk ^^ ^'^"^ '^'^''-y °^ *'^*^ ^^^^^^ °^ ^'^*^ superior court of law, and clerk and master to and master in equity, to file with the clerk of tlie supreme file transcript. pQurt, ou or before the seventh day of the term next ensuing Zi. '*'' ' the appeal, a transcript of the record and proceedings of the causes in their respective courts in which appeals have been taken ; for which service an additional fee of two dollars shall be allowed to the clerk, and clerk and master. On failure of 26. The appellant himself may likewise file the transcript <^l<^|-k.j|ppeij|'j^t and bond of his appeal with the clerk of the supreme court; faiiurl^ppeiL but if this be not filed at all within the time herein directed, '"T^euiV" ^^'^ appellee may file tliem during that or the next term of the may''obta'in cer- court, or may, at any time, by permission of the court, obtain nime'^and re'' ^^ certificate from the clerk of the supreme court, under the eovel-^doubir seal of the court, of such failure, which certificate he shall file n'V^e^' "' ^" ^''"^ clerk's ofiice of the court from which the appeal was '*' ' ' taken, and thereupon the said last-mentioned clerk shall record the said certificate and issue execution, or any other process on tiic judgment rendered in the superior court, as though no appeal had been prayed, taxing double costs against the ap- pellant. Anv defendant, 27. Appeals shall also be allowed at law, under the rcgula- morrtlwn oie, fions in tiiis chajjter prescribed, to any number of the defend- may appeal.— ' ants, where there shall be more than one; and such appeal 1850, c. 3. g,^,^j| ,^^^^ vacate the judgment against tiiosc not joining in the appeal, but execution may issue thereon, and any discliarge, release, payment, or satisfaction of or towards said judgment. Chap. 5.] apprentices. shall be available to the defendants who may appeal, and the same may be pleaded at any time before final judgment, on paying into court the costs accrued to the time of plea pleaded. And the provisions of this section shall extend to appeals from justices of the peace, as well as to those from every court of record. 77 ^^?';u' '^™ allowed: judgment in party's fmw, 10 Ire. 237, 12 lb 327' manda- mus, 2 lb. 430; cart-way, 1 Dev. 368; a^mntment of guardian, i lb. 2H laa^aHonof ord 13 Ib.'212; 2 Dev. ^ 3 HawktrsTf S'^ -^^^^^^^^ ^(.^^'r/zS" ■4 1b. 271; mistaken verd It, lire. 172- for costs omMtmn-, 9 Th To. /JT » / ;q p^^i . ;. '^"- '"■ "/'^- o*") i^- ri3l^' l?an-/b"2 'i^o /b"Ti^ I ">- .3 V"-^ "--'^. B^^ 'rn Sect. 8. 2 Mur. 25 ' Recordari, 6 Ire. 221, 7 lb. 130, Bus. 298. Sect. 9. 1 Jones, 91. Sect. 17. 12 Ire. 118, 8 lb. 247; 4 D. & B. 487, 2 Dev 314 1 Ih 3Ti oA^^'^n ^^ '•"'* ^2- ^"'^ "°t« "> 5 1- Bond, 2 Hawks, 400 >V«°'o/™«.r,? 4 D C- R "^^^1^.^^i^t^frib:t^;^^V^3^J^----^^^--' ^ • Sect. 25. 1 D. & B. 349. Sect. 26. 4 L-e. 215; 1 Hawks, 231; Id. 37. CHAPTER 5. APPRENTICES. Section 1. Orphans .and certain other children of small estate, to be bound out by county court. Certain children of free negroes to be bound out. 2. To whom, and for what time, chil- dren to be bound. 3. Duties of masters. 'VVho to be edu- cated. 4. Binding to be by indenture. Kem- edj' for apprentice thereon. 6. Master of children of color to give bond not to remove them out of the co\uity : and to produce them when required. On failure to produce Sectiox tliem to be sued and the whole pen- alty recovered. When colored mar- iner apprentice may be carried from the county. AVhat shall excuse non- production of appreutice. Master- ship may be surrendered on terms. In certain cases may be taken to adjoining county and bound. 6. Eemedy for master where .appren- tice absents himself after the age of eighteen years. 7. Penalty for harboring orphans and not having them bound out. 1. It shall be the duty of the several courts of pleas and Orphans and estaterr o?" '° ''.T' °,"'' "1 ^PP-«t--' all orpha'ns whose ^^^^^^ estate, aie of so small value that no person will educate and Bmali el.'l ,o 7* 78 APPRENTICES. [ClIAP. 5. be bound out maintain them for the profits thereof ; also all children under ^urte."'^ age whose lathers have deserted their families, and have been absent for the term of one year, leaving them without suffi- cient support, or where application may be made to the war- dens of the poor for relief, and the said wardens shall certify the same to the court of pleas and quarter-sessions ; also all children under age, whose mothers shall have secured to them such property as they may thereafter acquire, provided in this case that the children be not remaining with the father, and the court, in its discretion, thinks it improper to permit such Certain chii- children to remain with the mother ; also the children of free CToes to^^ife' ""' negroes, where the parents with whom such children may live, bound out— do^not habitually employ their time in some honest, indus- E. S. c. 6,8. 1, ^^..^^^ occupation ; and all free base born children of color. To whom and g Every male apprentice shall be bound to some trades- chiidr™ to'be man, merchant, mariner, or other person approved by the bound. -R. S. court, until the age of twenty-one years, and every female to "■ ^' '• ^' ^- some suitable employment till her age of eighteen years, if white, but if colored, till twenty-one. Duties of mas- 3. The master or mistress shall provide for the apprentice, **"■ diet, clothes, lodging, and accommodations fit and necessary; and such as are white, shall teach, or cause to be taught to read and -VATite, and the elementary rules of arithmetic ; and at the Who to be edu- expiration of every apprenticeship, shall pay to each appren- rf'3"6^'^''''tice, six dollars, and furnish him with a new suit of clothes ' ' ' and a new Bible : and if upon complaint made to the court of pleas and quarter-sessions, it shall appear that any apprentice is ill used or not taught the trade, profession, and employment to which he was bound, or that any Avhite apprentice is not tauo-ht reading, writing, and arithmetic, as aforesaid, the court may remove and bind him to some other suitable person. Bindingtobe 4. The binding of apprentices shall be by indenture, made by indenture, j^ ^j^^ ^^^^^ ^f ^^^ chairman of the county court of the one part, and of the master or mistress of the other part ; which indenture shall be acknowledged or proved before such court and recorded, and a counterpart thereof shall remain and be Remedy for ap- kept in the clerk's office for the benefit of the apprentice ; and Vn-R 's^^T fniy person injured may at his cost prosecute a suit tiiereon in 8"s. 4. ' ' "' the name of the chairman, and his successors, and recover all damages which he may have sustained by reason of the breach of the covenants therein contained. Master of child 5_ When the court of pleas and quarter-sessions shall bind bnnd'no[°to'r^- any child of color, they shall take bond with sufficient security move iiiTn out j,^ ^hc suui of ouc thousand dollars, payable to the State of AndToprX'o North Carolina, from the master or mistress, not to remove iiim when re- ^y^^.\^ colored ciiild out of the county where he is bound, and o","iu1iure to to producc him before such court, at any time when the court produce, to be ^^y require it; and also to produce him at the expiration of 'wiwic'pcnaity the term of his service; and on failure in either case to pro- recovered, duce him. after two several warnings, the county solicitor is mirinerapven- hereby directed to bring suit against such person on his bond, Chap. 5.] apprentices. 79 for the use of the apprentice, in which the whole sum shall be ticc.maybe recovered, as liquidated damages: Provided, nevertheless, that ?''''''''' ''™" any person bound to a seafaring employment, may be carried \vi,at°Scs- out of the county in the ordinary pursuit of his business ; and ''"■''. "on-P'-o- provided further, that no master or mistress shall be subject to prenUce.""^ "'" a recovery on said bond, who shall make it appear on the trial, M^'^'ership that he or she was unable to produce the apprentice, by the S^'on tomt act of God, or by the act of the apprentice, without any de- ^"'^'"■'"'"<=«««s fault on the part of the said master or mistress: Provided ZfoUVglZl; always, however, that the court may, in its discretion, accept ^""^ ^^"''■T'''- the surrender of the mastership of an apprentice at any time, isso, cl m" and on such terms as it shall deem just; all which shall be recorded ; and provided, moreover, that if the master or mis- tress shall remove to an adjoining county, the court may, in its discretion, permit the apprentice to be carried to that county, to the intent that he may there be bound to the per- son so removing, but to none other ; and when, but not before, the said master or mistress shall exhibit to the com-t which first bound the apprentice, a duly certified copy of the second bind- ing, together with the indenture and bond, and the court shall be satisfied therewith, then the said master or mistress shall be deemed and held to be discharged thereafter from the condi- tion of the bond first executed ; all which matters shall be recorded, and the certified copy aforesaid, shall be filed with the indenture in that court. 6. If any apprentice, whether colored or otherwise, who Remedy for shall be well used by his master, and who, if a white person "'"'""■ '^''™ shall have received from his said master not less than twelve serhimseif' months schooling, shall absent himself after arrivino- at the "*''^'' "'" ^'S^ o*" age of eighteen years from his master's service, before the term -tsfc.v.'s: of his apprenticeship shall have expired, every such apprentice shall be compelled to make satisfaction to the master for the loss of his service : and in case any apprentice shall refuse to make such satisfaction, his master may recover by warrant before any justice of the peace, such satisfaction not exceed- ing sixty dollars, as the justice may determine ought to be made by such apprentice ; or the master may have his action on the case against the apprentice for his default : Provided, that no apprentice shall be compelled to make any satisfaction but withm seven years next after the end of the term for which he shall be bound to serve. 7. No housekeeper shall harbor and conceal, or hire any Penal hn.ri, ,■,,•- orphan chdd, without first obtaining leave of some justice of ^"t'"^"',^^"' the peace, under the penalty of ten dollars, one half to the them bo„M ^^ mformer, and the other half to the poor of the county; and ™^-^-^-<=''- such justice, on granting permission, shall bind the person by " ' recognizance to bring the said orphan child to the next county court, which shall bind such orphan agreeable to law Sect. 1. Bus. 414; 6 Ire. 450 Sect. 4. Mistakt in one Rn^ 2 U. As 13. 108. Irreyidar mdcnUre, 4 Dov. 61. I)ama,j,,for sedudng, 5 Ire. 21C. SECT. 4. jl/(s(oi-e !» Of/e, Bu<. 21 Dfnih nf mmi^,- ■> n c Tj iTi- r^ ,, , i 80 ASYLUMS. [Chap. 6. CHAPTER G. ASYLUMS. I. — FOR DEAF MUTES AND BLIND PERSONS. Section 1. Incorporated. How styled. 2. To be governed by board of seven directors, and have a president. 8. Who sliall compose board. Governor to fill vacancies. 4. Corporate powers vested in a presi- dent and directors. Their powers and duties. 6. Time of meeting. Hay resign. Ke- raov.ll from Wake. 6. Board to report to General Assembly. 7. To report to literary board what counties bound to provide for pupils. Public treasurer to report to literary board what counties have levied tax, etc. 1. An asylum for the insane established. Its corporate name, etc. 2. To be under the control of nine di- rectors chosen by the General As- sembly. Their powers. 3. For what period chosen. 4. How apportioned through the State. 5. Three shall reside in Walce county. 6. The whole to meet annually in No- vember. 7. Board to appoint a superintendent, etc. His qualification and residence. 8. Term of ofBce eiglit years. How re- moved. 9. Board to appoint other officers. 10. And fi.^ salaries. 11. Superintendent to control subordi- nates. 12. Board shall make by-laws, reports, etc. 13. Wake directors to be an executive committee. Tlieir powers. 14. Board to advertise when asylum is completed, and sheriffs to report number of insane in jail, etc. Rule for selecting patients; curableness and not poverty. 15. What insane removed from jail to asylum. 16. Confined on criminal charge to be removed. 17. What indigent iusane admitted, and Section 8. What persons received as pupils. 9. County tax levied when parents can- not pay. 10. Other persons admitted as pupils, when. 11. Pupils from other States. 12. Penalty for failure to levy tax, or to collect and pay. No county to pro- vide for more than five. 13. On failure to levj-, amount deducted from school fund. 14. Eight thousand dollars yearly appro- priated to institution, out of literary fund. 15. Faculty may confer degrees. 16. Funds deposited with public treasurer. FOR THE INSANE. proceedings therefor. Affidavit of insanity. Precept to bring up pa- tient for examination. Proceedings of justices on return. Patient re- moved unless bond is given, etc. Examination sent with him. Form of warrant. 18. Literrogatories, and answers thereto transmitted to superintendent. 19. Board convened and proceedings when indigent insane sent to asylum. 20. When paying patients from other States admitted. What necessary to entitle such patient to admission. Foi-m and conditions of tlie bond re- quired. 21. Money not spent, refunded. 22. Bonds given to keep insane from asy- lum transmitted to office of county court, etc. Damages. 23. Form and condition of bond. 24. On breach of bond, patient sent to asylum by order of county court. 25. Two guardsmen only to bo employed unless, etc. 20. Wliat insane deemed indigent. Coun- ty to pay their expenses into public treasury. 27. IIow county may bo reimbursed. 28. County tax levied for support, otc, of insane. Chap. 6.] ASYLUMS. 81 Skction 29. Failure to levy, or to collect and pay tax, a misdemeanor. Proviso. 30. Amount in certain cases deducted from school fund. 31. Guardian or friend giving bond un- der twenty-third section, or advanc- ing money, may be repaid. 32. Jloney to support asylum paid out of public treasury. 33. Money belonging to asylum paid iuto Section public treasury. Donations, how- applied. 34. On what warrant treasurer of asy- lum to pay. To give bond. 35. Board and executive committee to record their proceedings, etc. 36. Tax laid for support of asylum, to be paid into the public treasury. 37. Who shall be official visitors. I. — FOR DEAF MUTES AND BLIND PERSONS. Whereas, in virtue of an act of the General Assembly of the Preamble. year 18-16, entitled " An Act to provide suitable buildirii^s for Jg^e' l' %■ the comfortable accommodation of Deaf Mutes and Blind Per- is^,' e! 4, k sons in lhis_ State," and of several supplemental acts passed "5^' c' Is^' since that time, many suitable buildings have been erected in "'"' "^ the city of Raleigh, on the public grounds called Caswell Square, for the accommodation, education, and maintenance of deaf mutes and blind persons of the State, and the institu- tion hath been incorporated under the name and style of " The North Carolina Institution for the education of the Deaf and Dumb and of the Blind: " — 1. Be it therefore enacted, That the said institution shall incorporated. be, continue, and remain a corporation, under the name and title of "The North Carolina Institution for the Deaf, Dumb, How styled. and Blind," and shall, at all times, be subject to the control of the General Assembly. 2. The said institution shall be governed by a board of seven To be o-overned directors, a majority of whom shall constitute a quorum for ^y boal-d of business, and one of whom shall be appointed president, to anlfhavel"""'' preside at their meetings ; and the principal of the institution P'-es^ident. shall be, ex officio, secretary of the board, who shall record, attest, and preserve their proceedings. 3. Such persons of the board of directors appointed by the Whoshaiicom act of the General Assembly of the year 1848, chapter 5, enti- P°^® ^°^^^- tied ''All Act to establish a Board of Directors for the Deaf and Dumb Institute in this State," as are now in office, and such other persons as, having been appointed to vacancies therein, are now in office, shall be the board of directors of the said institution: and, in case of a vacancy therein, (whereof, whenever it may occur, the secretary shall give notice,) the governor shall forthwith fill the same, and submit it for ap- Governor to fill proval by the General Assembly at the earliest opportunity. vacancies. 4. The corporate powers of said institution shall be vested Coporate in the president and directors, under the name and style in the E""' m^siden? first section named, who shall have capacity to take and re- ""^i ''""''ctors; ceive, in ti-ust for the institution, donations of real and personal and jE'"' estate. They shall be charged with tiie erection of all neces- sary buildings and fixtures, and with furnishing, preserving, and repairing the same; with the care of the grounds and 82 ASYLUMS. [Chap. 6. appurtenances, and of the interest of the institution generally. They shall have power to employ all necessary agents ; appoint and remove professors ; to fix their compensation ; prescribe their duties; establish rules for the government and discipline of the pupils ; regulate tuition fees ; prescribe and control the duties and proceedings of officers, servants, and others, with respect to their employment : and, in general, to do all matters and things, (the same being consistent with the laws of the State,) which shall seem to them most expedient for promoting the purposes and objects of the institution ; and to this end, to make all necessary by-laws, rules, and orders which they may deem useful and proper. Time of meet- 5. ^he board shall meet at stated times, and also at such ing. May re- . 1 ,• , • . mi sign. Removal otlicr times as busuiess may requn-e. 1 he members may re- from Wake. gign ; and a removal from the county of Wake, or an omission to act for a period of six months, shall create a vacancy. Board to report 6. The board shall make a report to the General Assembly to General As- , 1 «• -j, • i • i 1 n . •. • ^ ^, « . "^ sembiy. at each ot its sessions, which shall exhibit a full account of the receipts and disbursements, from what source received, and for what purpose expended, the funds on hand, and a general statement of the condition of the institution. iTtVaryToarf ''• "^'^^ ^°^^'^. ^^^^^^ ^^^° ^^P°^^ to " The President and Di- ■what counties rcctors of the Literary Fund of North Carolina," on the day vi'ikfor'pupiis" "^^^^'^ that body shall assemble to distribute the common school fund, what counties are bound to provide for pupils admitted at the institution, and how much ought to be pro- vided by each county ; to which of the county courts, and when, information was given by the board of their duty to Public treasur- make provision for pupils : and at the same time, the public er to report to , ' in , . i 1 1 /. 1 » . \- i literary board treasurer shall report to said board of the literary fund what w'leviedta^^ counties shall have levied a tax, and how much, for the sup- etc. ' port of their respective pupils ; and which of the sherifls have paid the same into the public treasury. StJd as°pu- ^- '^^'^ president and directors shall, on application, receive piis. into the institution as pupils, all white deaf mutes and blind persons, residents of the State, not physically or mentally im- becile, who may be over the age of eight, and under twenty years. Countytaxiev- 9. And as to SO many of such pupils, who, or whose par- led when par- j.i ..1 , .r^in ' ents cannot ^nts, have not the means to pay seventy-five dollars a year P»y- towards their board and education in the institution, the justices of the court of pleas and quarter-sessions of the county wherein any such pupil shall be a resident, shall an- nually levy, and cause to be collected, for and during the term of seven years, a tax of seventy-five dollars for each pupil received into the institution ; wliich shall be collected by the sheriff or other tax collector, and paid into Ihe public treasury along with the State taxes, for the use of the insti- tution. Other persons jQ. As to the rcsidoc of such pupils, they shall be admitted piis, when. upon such tcnus ol pay, as to board and education, (not how- Chap. 6.] asylums. 83 ever exceeding thirteen dollars per month,) as the board of directors may think fit. 11. The board of directors may also admit into the insti- Pxpii' r'-'^ni tution, at their discretion, and upon such terms as to board °"'^'' ^'"""' and education, and other accommodations, as they may deem proper, pupils of like age and infirmities, who reside out of the State: Provided, hoivever, That no such pupil shall ac- quire the condition of a resident by remaining here in such pupilage. 12. If the justices shall fail to levy said tax for the space Penalty for of one year, after being informed by the board that such deaf [^"" oVto cof mute or blind person is received into the institution ; or if the iect.indpay." sheriff, when such tax shall be laid, shall fail to collect and pay it to the public treasurer, at the time of accounting for State taxes, the said justices and sheriff, each, for his several neglect, shall be deemed guilty of a misdemeanor, and shall be pi-osecuted in the superior court of the county: Provided,^'"'?™'^y^° hoivever, That no county shall be required to provide, at one moJe ttan'five. and the same time, for more than five pupils. 13. If a'ny county shall fail, for the space of one year after Onfoiiure to admission of a poor pupil, for whose board and education dXteTtVom such county ought to contribute as aforesaid, to pay to the retool fund. public treasurer its proper tax, the amount thereof shall be paid to the said treasurer by " The President and Directors of the Literary Fund of North Carolina," for the use of the institution ; and shall be deducted by said board of literature out of the share, next to be distributed, of such county, in the common school fund. 14. The president and directors of the literary fund of S^.ooo yearly- North Carolina, for the use of the said institution, and to tTStS enable it to fulfil its duties, shall annually pay to the public ™t of literary treasurer eight thousand dollars, which surn, with all other '""''' moneys appropriated to the institution, shall be paid by the holder of the funds in such sums, and at such times, as may be ordered by the board. 15. The faculty of the institution, witli the consent of the Faculty may board of directors, may confer such degrees and marks of '"""''•■'" ''''°'''"''- literary distinction as may be judged proper to encourage merit. 16. All the cash funds which may belong to the corporation Fuh.n deposit- shall be deposited with the public treasurer, who shall keep an tre-ilu'er''"'''''" account with the cori>oration, and report the same in his an- nual statement of the finances of the State. II. FOR THE INSANE. Whereas, in virtue of an act of the General Assembly of Preamble, the year eighteen hundred and forty -eight, entitled '' An Act\lfi'l]i\i to provide for the establishment of a State Hospital for the la- '' ' ' sane of North Carolina,'' and of other acts supplemental thereto passed since that time, a tract of land has been pur- chased, and many suitable buildings have been erected, and 84 ASYLUMS. [Chap. 6. are now erecting thereon for the accommodation, maintenance, support, and cure of the insane of this State, and the institu- tion hath been incorporated under the name of " The Lunatic Asylum for the State of North Carolina: " — An fisyium for 1. Be it therefore enacted, That the said institution shall tabiished— Its Continue and remain a corporation, under the name and title corporate of " The Insane Asylum of North Carolina," and the same is name, etc. hereby invested with all the property which now belongs to it under any other corporate name; and by this name may acquire and hold, for the purposes of its establishment, all such estate as may be devised, bequeathed, or conveyed to it. To be under 2. For the government of said asylum, there shall be ap- dh'ecTo'rs' "'"" pointed by the General Assembly nine persons as directors, ciiosenby Gen- who, and their successors in office, shall direct and manage the Their nowersf' affairs of the institution, and, for its better government, make all necessary by-laws, not inconsistent with the laws of the State ; shall have power to receive, hold, manage, and convey, or otherwise dispose of, in the name of the institution, all such property as may be hereafter given or otherwise conveyed to the asylum : and they shall serve without reward, save their travel- ling expenses incurred in the discharge of their official duties. For what pe- 3. Of the board of directors, when first appointed, three no c osen. ^\-^^\\ bg chosen for two years, three for four years, and three for six years ; and afterwards they shall be appointed, at the end of their respective terms, for six years : and, in case of any vacancy in a terra, the unexpired portion thereof shall be filled by the governor. How appor- 4. Of the directors, five shall be appointed from the central the"slite.™"°'^ portion, two from the eastern, and two from the western por- tions of the State ; and the vacancies which may occur in each portion shall be filled therefrom. Three siiaii re- 5. Of the five directors from the central part of the State, county.^"'"' three shall be resident, at the time of their appointment, and continue to reside in Wake county, in or near the city of Ra- leigh ; and the other two, at the time of their appointment, shall be resident out of that county. The whole to 6. The board of directors shall convene at the asylum on S^Nov."""""^ the first Monday of November, in each year, and investigate the administration of its affairs, and report the same to the ensuing General Assembly, with such remarks and recom- mendations as to them shall seem expedient. Board to ap- 7. The board shall appoint a superintendent of the institu- mtcnd'ln"''et'c., tion, and prescribe his duties; he siiall be a skilful physician, his quaiifica- educated to liis profession; of good moral character, of prompt dcncc!"" '^*''' business habits, and of kindly disposition; he shall be a mar- ried man, and shall reside constantly near the institution. Term of office 8. lie sliall hold his place for eight years, unless sooner re- removed.'"^^ moved by the board, who may, for infidelity to his trust, gross immorality, or incompetency to discharge the duties of his office, fully proved and declared, and tiie proof thereof recorded in the book of their proceedings, remove him, anil put another in his stead. Chap. 6.] asylums. gg 9. The board, at their annual meeting, shall appoint a treas- Board to ap- iirer, steward, matron, and other otlicers whose appointment P"'"'""'*^''"''^- is not elsewhere vested, who shall hold their places for one "''''' year, unless sooner removed by the board for good cause • which cause shall be specified and recorded in their proceed- ings, and other officers shall be appointed for the unexpired term of those removed. _ 10. The board, at their annual meeting, shall fix the sala- And fix sala- ries and compensation of the superintendent and the officers "«^- and assistants, whose services may be necessary for the man- agement of the asylum. 11. The superintendent shall exercise exclusive direction S\aperi„tend'nt and control over all the subordinate oflicers, assistants and *T"*™' '"''- servants engaged in the service and labors of the asylum • and "''"'" m every case of malconduct, may discharge such servants as are employed by himself, and shall report to the executive committee the misconduct of all other subordinates. 12. The board shall make such by-laws and regulations for Board shall the government of the institution as shall be necessary and "'''"' h'-^^^^, cause them to be published with their biennial report, the ^g. "''""■''• ''"• port of the superintendent, and that of the treasurer; all which shall be distributed, three at least to each county in the State and sent to the clerk of the county court. 13 The three directors resident in Wake county shall con- Wake directors stitute an executive committee, with power to transact all *° '"' ''''''*'"*'^^ ordinary business, and all business which may not concern the Ti"™ powers, appointment or removal of a salaried officer of the institution or the appropriation of its funds, or disposal of its property ' they shall hold monthly meetings at the asylum, and dilic^ently examine mto its government and condition, once every month or oftener if necessary. 14. As soon as the asylum shall be completed and ready Board to adrer- for the reception of patients, the board of directors shall make itmilc^S known the fact by publication in two newspapers of the State- edand°S whereupon It shall be the duty of the sheritT of each county f^e^KsareT,; in the State to report to the board of directors the number of j"", etc insane persons in his jail, confined for insanity, to<^ether with a statement of the peculiarities of each case, its duration and other interesting facts connected therewith, attested by at least one respectable physician ; and thereupon the board shall de- termine upon the admission of as many such patients as, in their opinion, the asylum may be capable of accommodating., and shall forthwith notify the several sheriffs thereof: P/o- mue for select- vided, however, That in the admission of such patients (if all ins patient!,, cannot be accommodated,) the board shall, as far as practica- '^^^,,. ble, apportion the same according to the white ijopulation of '>■ each county ; And further, That, in the selection of all pa- tients, due regard shall be had to the recent character of each case, and the chance of curing the patient, without reference to his ability to pay. 86 ASYLUMS. [Chap. 6. wimt insane re- \q_ Everv insane person confined in iail for otlier cause raoveJ from jail ,, . i n i i j iu i to asylum. than crime, shall be removed to the asylum. Confined on l(j. The courts of record shall allow to be committed to toTe'l^movefu the asylum as a patient, any person who may be confined in jail on a criminal charge, of any kind or degree, or upon a peace warrant, whenever the court shall be satisfied that the act was done while such person was insane ; and the court may impanel a jury, if deemed necessary, to inquire into the fact. What indigent 17. For admission into the asylum as a State patient, (or tedtand^pro-' 0"^ whose expenses are borne by the public,) the following ceedings there- proceeding shall be had : — *^''' Some respectable citizen, resident in the county of the patient, shall make before, and file with, a justice of the peace of the county, an affidavit in WTiting, which shall be substan- tially as follows : — State of North Carolina, County, AffidaA-it of in- The undersigned, residing in said county, maketh oath that sanity. ^^ j^^^ carefully examined , and believes him to be an insane person ; that he is in needy circumstances, has a legal settlement in said county, and, in his opinion, is a fit subject for admission into the insane asylum. Dated this day of , 18 A. B. (Affiant.) Subscribed and sworn before me. C. D. {J. P.) Whereupon, the said justice of the peace shall issue a pre- cept, directed to the sheriff' or constable as follows : — The State of North Carolina. To the sheriff" or constable of county, greeting; Precept to Whereas, information on oath has been laid before me, that «ent^for eTam- is an insane person : you are hereby commanded ination. to bring him before me, or some other justice of the peace of said county, within the next ten days, or as soon thereafter as is convenient, in order that necessary proceedings may be had respecting his insane condition. Given under iny hand, this day of , 18 , (J. P.) Proceedings of Upon the return of the precept, with the body of the in- .jus^^ices on re- ^^^^^ person, the justice shall cause to be associated with him two or more justices of the county, who, togetlier, shall pro- ceed to examine into the condition of mind of the supposed insane person, and shall take the testimony of at least one respectable physician, and such other persons as Ihey may Patient re- think proper. If the justices, or any two of them, shall de- bmiTis^givcn, cide that such person is insane, and some friend will not etc. ' become bound, with good security, to restrain him from com- mitting injuries, and to keep, support, and take care of him until the cause for confinement shall cease, the said justices, or two of them shall direct the insane person to be removed Chap. 6.] asylums. g-? to the asylum as a patient; and to that end, they shall direct a warrant to the sheriff or constable ; and, at the same time shall transmit to the board of directors the examination of the Ksamination witnesses, and a statement of such facts as the said justices '""' "'"''"'"• shall deem pertinent to the subject-matter: which warrant shall be substantially as follows : The State of North CaroHna. To the sheriff or constable of county, ^reetino- : Whereas it has been made to satisfactorily ''appea? to us, Form of war- J. b. and O. M., justices of the peace of the said county, '"''"'• that A. B., a citizen of the State, is an insane person ; that he has a legal settlement in said county, and is a fit subject for the insane asylum, and that his being at large is inju- nous to himself, and disadvantageous, if not dangerous to tlie community, you are hereby commanded to take the said A. B. and convey him to " The Insane Asylum of North Carolina,'' and there deliver him to the superintendent there- ot, for safe-keeping. Given under our hands, this day °^ '18 J.S.{J.P.) ^ O. M. (J. P.) 18. The following interrogatories, with their respective an- Interrogatories swers by competent witnesses, shall likewise be transmitted, S'lXTrans- witli the other papers, to the board of directors : — mitted to su- o J-- 1 iTTi , . , perintendent. Huestion 1. What is the name of the patient '^ " 2. What is his age ? " 8. Is he married or single ? 4. What is the supposed cause of his insanity? " 5. In what way is the disease exhibited ? " 6. Has any medical treatment been pursued ? — if so, of what kind ? 7. Has the patient manifested any propensity to injure himself or others ? " 8. How long has he been insane ? " 9. Has he been subject to epilepsy ? 10. Have any of his ancestors been insane ? " 11. Has he any property ? — how much, and of what kind ? 32. Has he any family? — and what persons com- pose it ? 19. Whenever any insane person, in indigent circumstances, Board con- shall be conveyed to the asylum, the superintendent, being Je™dl"wfeT duly informed thereof, shall convene a board of directors, ind&nt in.ane (any three of whom shall constitute a board,) for the purpose """ '° "-'''"'"■ of examming and deciding if such person is a proper subject I for admis^sion ; and if a majority of the board decide that | he IS such, he shall be received into the asylum ; but such board may, at any time thereafter, deliver said insane person to any friend who will become bound, with good security, to restrain him from committing injuries, and to keep, maintain, 88 ASYLUMS. [Chap. 6. and take care of him, in the same manner as the justices might have done. When paying 20. Paying patients from other States may be received o?hCT"s'ti![er into the asylum, whenever there may be vacancies imciaimed aamittcd. by persons having a legal settlement within the State. But before any patient whatever shall be received into the asylum as a patient, there shall be produced to the superintendent — What necessa- j rp] treasurer's receipt for three months' charges in ad- ry to entitle '^ ° such patient to vance. admission. £. A sufficient bond, conditioned as hereinafter required. 3. A certificate from a respectable physician, setting forth — (1) That the patient is free from any infectious or con- tagious disease. (2) The age of the patient, and a concise history of the disease. (3) Its duration, dating from the first symptoms. (4) Its supposed exciting cause. (5) Whether it is hereditary. (6) Whether the patient has ever been subject to epi- lepsy. (7) Whether he has ever attempted to commit violence upon himself or others. (8) The medical treatment pursued in the case, and any circumstances known to the physician tending to illustrate the same. No other proceedings shall be necessary for the admission of paying patients. The bond required in this section shall be substantially as follows : — Form and con- Know all men by these presents, that we, , of the bmi°dXulred. county of , in the State of North Carolina, are held and firmly bound unto the State of North Carolina, in the penal sum of dollars; for the payment whereof we here- by bind ourselves, jointly and severally. Witness our hands and seals, this the day of , A. d. The condition of the above obligation is this. Whereas , of the county aforesaid, is about to be admitted as a paying patient into " The Insane Asylum of North Carolina." Now if, while he shall remain therein, the undersigned shall con- stantly supply him with suitable clothing, and quarterly pay in advance all the charges of said insane asylum against him ; and whenever his removal shall be required, immediately re- move him ; and, if he shall escape from the asylum, pay all reasonable charges incurred in restoring him thereto ; and, if he shall die therein, pay all reasonable expenses incurred for his funeral; then this obligation shall be void: otherwise it shall remain in full force. A. B. (Seal.) C. D. (Seal.) Chap. 6.] asylums. 89 lum, to the credit of a patient discharged therefrom the 'i'^^'"''"''"'"^'^'!- treasurer shall pay it to the person authorized to receive the same, fJ\Ml ^i°'- ^^^''^^^^ "nder the provisions of this chap- Bonds given to ter ioi restraining insane persons from committing injuries keepinfane and for then- safe-keeping, support, and care, shall be payable [ran'sn^'to to the btate of North Carolina, in the sum of five hundred »'E'='^<"-^-o"n>y dollars at least, and shall be transmitted to the clerk of the '""'' '^■'• county court of the county wherein the insane person is set- tled, for safe-keepmg, and may be put in suit by any person njured by the insane person, by reason of his insane condi- tion, lor the damages sustained thereby ; and shall be put in suit by the solicitor of the State for the county, for any other breach thereof, wherein the damages recovered shall be for the D»'""ses. "'00° ^,, '"•'^"'^ P"'*°"' ^"d shall be at least fifty dollars. 23 ^ he form of the bond mentioned in the preceding sec- tion shall be as follows : — r t. State of North Carolina, ) County of ( .nJn'n''" T^ ^^ ^''^'^ presents, that we, A. B. principal, Fo,™ andeon- and C. D. and EF. sureties, are held and firmly bound unto ^"'-"f"-'!- the State of North Carolina, in the sum of dollar- for the payment whereof we bind ourselves and each of ' us. Witness our hands and seals, this the day of A. D. -' > The condition of the above obligation is this : Whereas the said A. B., with the view of hindering G. H., an inJne person resident in the county aforesaid, from being sent to iartJ. T t^^^'"" °^ ^°'*'' Carolina," hath undertaken tain nnn T TI Committing injuries, and to keep, main- Si f'r, """^ ^^1^^ ''^'■" °f '"'"• ^'°^^' if th« said A. B. then tt^^^^'^P.^^ '"'•'/ *'^' conditions of this obligation, then the ame shal be void : otherwise it shall be in fulf force ^4 \\henever it shall be made to appear to the county tTii a^it^rr h"n r' ^'".^"? =^" "°^ faithfully kept^trXI the insane pei.on shall be sent to the asylum by order of the ^^t'oa-'J''"-" wTundeSl-e f'fTr?' °*;"^ "^P'^"^^''''' ^"d ^'-'-t f-"d ctX^'^ott. tTie Pf f ^'5'^ r^''^ '''^'*'^'' ^"^ ^h^" execute bond ' sen baol''to r""^-, ^"J '"'rr^'"' ^^^^^ P^^'^^'^^^ ^^^U be sent back to the asylum, he shall not be redelivered on anv new bond of the defaulting obligor. ^ be^LSedTl '''''" ^"'° P/'r^""^ (""less a greater number Two... ..- be certhed to be necessary by the examining justices) shall "-noX'o be son Z tZ '7 -""'■? ^-- --°-"g -^y indi|e!it insanVpe ! ,-?'Sr'' "- toveUin! e.,7 '"'' '""^'^ f,f '"eceive, each one, besides his ' travelmg expenses, one dollar per day, to be paid by the county whence he is removed. ^ ^ cieM\mnl7J"'''"'' Pf.^0"' wliose property shall be insuffi- what i,.ane cieiit amply to support himself^and his family, shall be deemed, ;!::;;r'' '"'"- o 90 ASYLUMS. [Chap. 6. Avithiti the provisions of this chapter, to be indigent ; and the removal to, and support in, the asylum, of every indigent m- sanc person, shall be paid by the county wherein he may be County to pay legally settled ; and the expense of his maintenance, and all «•'<=''■ ^^iP^"""" other needful expenses, shall be annually paid by such county treZry.'" to the treasurer of the State, on or before the first day of Octo- ber of each year, the said treasurer and the county trustee being duly notified by the superintendent of the amount due. How county 2f. Any county, liable to pay the expenses of an insane Eed*"'"'"" person having any estate, may cause the same to be sold for its indemnity or reimbursement, in the manner provided in the chapter entitled " Idiots and Lunatics" County tax 2% The justices of the court of pleas and quarter-sessions po^rf&c^'ome' of tlie county, wherein any indigent insane person may be insane. resident, shall annually levy, and cause to be collected, lor and during the time such person may remain in the asylum, an amount necessary for the removal to, and support in the asy- lum, of such indigent insane person, as notified bylhe superni- tendent as aforesaid ; and the same shall be collected and paid into the public treasury, along with the State taxes, for the use of the institution. Failure to levy 29. If the justices shall fail to levy said tax, for the space of er to collect and ^^^ ^fj^j. being notified by the superintendent, or il the Semeanm- °"'" sheriff-, when such tax shall be laid, shall fail to collect and pay it to the public treasurer, at the time of accountmg for State taxes, the said justices and sheriff, each for their several neglect, shall be deemed guilty of a misdemeanor, and shall be prose- Proviso, cuted in the superior court of the county : Provided, however, That no county shall be required to provide, at one and the same time, for more than five indigent insane persons. Amount in cer- 30. If any county shall fail, for the space of one year, to ductedl'm"^ contribute its proper tax as aforesaid after the ^^me is^due, schoolfund. "The president and directors of the Literary bund ot JNortli Carolina," shall deduct out of the share of such county in the common school fund, next to be distributed, the amount thereof, and pay the same to the treasurer. Guardian or 31. Any guardian of the estate of an insane person, or any w"Ara3d other person, who, as his friend, shall execute the bond mcn- Sonrorad- tioncd in the twenty-third section of this chapter, and any "Zfll^l gtiardian or friend who shall advance money for such person's ■ ■ expenses and charges at the asylum, may be indemnified and reimbursed out of the estate, from the profits or sale thereof, if the same shall appear just, by applying by ^petition to the county or superior court of such insane person's settlement. Money to .up- 32. All money applied for the use and support of the insti- port asylum tution, and the indigent insane, shall be paid to the treasurer rc'tasut'. of the asylum out of the public treasury, on warrants drawn by the superintendent and countersigned by two at least ot the members of the executive connnittee. Money belong- 33. All moiicy and the proceeds of property, given to the ing t« asylum asylum, and all money arising from any estate which may be Chap. 7.] ATTACHMENT. 91 owned by the, asylum, shall be paid into the public treasury ; and all donations shall be kept as a separate and distinct fund, and shall be faithfully applied as the donor may have directed. 34. The treasurer of the asylum shall pay out no money except on the warrant of the superintendent, or the executive committee ; and he shall execute a bond payable to the State of North Carolina, with two able sureties, in the sum of ten thousand doUars, conditioned for the faithful discharge of his duties. 35. The board and executive committee shall cause all their proceedings to be faithfully and carefully written and recorded in books, and to this end may employ a clerk. And the books shall at all times be open to the inspection of the ofhcial visitors of the institution, and of the General Assembly. 36. A tax of one and three fourths cents on every one hun- dred dollars' worth of land, and five and one fourth cents on every taxable poll, shall be annually levied for the support of the asylum, and collected and paid into the public treasury as other taxes ; and the same, with all other moneys belonging to the asylum, shall be kept in a separate account. 37. The governor, judges of the courts, attorney-general, and members of the General Assembly, shall be ex officio visitors of the insane asylum. lie treasury, &e. Donations how .ipplied. On what war- rant treasurer of asj'lum to lo frive bond. Board and ex- ecutive com- mittee to record their proceed- ings, &c. Tax h\id for support of asy- lum. &c., to be paid into pub- lic treasury. Wlio shall be otfioial visitors. CHAPTER 7. ATTACHMENT. Section 1. Attachment may issue for debt or damages, where process cannot be served by reason of absence. 2. Also on behalf of a citizen of the State against a nou-resideut. 3. Not to issue without bond, which, with affidavit, must be returned to court. 4. Form of attachment. Form of bond. Attachment not abated for want of form. B. Defendant may replevy on giving bail-bond. Power of baih 6. Perishable property sold, and pro- ceeds deposited, &c. 7. Garnishee summoned; to answer on oath. Judgment against garnishee for effects in his hands. 8. Proceedings against garnishee failing to appear. Judicial attachment to issue, when. 9. Garnishee denying he has any prop- erty, &c., issue may be made up. Section 10. Proceedings where attachment levied on property claimed by another. 11. Specific articles confessed by gar- nishee valued by a jury, and judg- ment for their value. In what cases garnishee exonerated by dehvery of articles. 12. Judgment conditional where money or articles are due or deliverable at a future day. 13. Publication made for defendant six weeks. 1-i. When judici.al process may issue. 15. Attachment may issue against ab- sentees exempt fi-om arrest, who may plead without replevying. 16. Also for injuries to person and prop- erty in certain cases. Within what time. 17. Such attachment dismissed if im- properly issued. 18. Attachment before justices of the peace. 92 ATTACHMENT. [CUAP. 7. Section (1.) Returnable within tliirty days. (2.) Replevy bonJ, how conditioned. (3.) Garnishee to appear and answer. (4.) Perishable estate to be sold. (5.) Specific articles confessed by garnishee, how valued. How and when garnishee may be exonerated by delivery of said articles. Jlay stay execution. (6.) Claimant of property attached before a justice, may remove pro- ceedings to county or superior court. Must give bond for costs. If gar- nishee deny possession of any prop- erty, &c., proceedings removed to count}' or superior court. (7.) Publication for defendant. (8.) Justice to file attachment bond. 19. When real estate is attached and con- demned by a justice, proceedings returned to court. Sf:cTioK 20. Property in hands of executor, ad- ministrator, or trustee, attachable by bin in equity. 21. Creditors may file bill before end of two years. On decree, must give refunding bond to executor or ad- ministrator. 22. Lien from time of filing bill. 23. Court may require creditor to indem- nify executor, &c., against loss. 24. I'pon what proofs and terms plaintiff may have decree. 25. Debtor may replevy before final de- cree, by giving bond. 26. Plaintift' shall state his debt specially, and make affidavit of the mattei-s in his bill. 27. Lien on vessels for work, provisions, &c. 28. May be attached and held, although the owner be present. Attachment 1. Upoii Complaint being made on oath to any judge of the deS or danv-"^ supreme Or superior courts, or to any justice of tlie county ages, when court, or clerlv of the county or superior court, by any person, brserved'^by"* ^is attorney or agent, that any person indebted to him, or who reason of ab- hath endamaged him as hereinafter mentioned, hath removed, (■^'^''s.T. -^ or is privately removing himself out of the county, or absents 1850, c. 6. himself from the county or State, or conceals himself, so that the ordinary process of law cannot be served on him ; and if the plaintiti", his attorney or agent, further swears to the amount of his debt or demand, to the best of his knowledge and belief, such judge, justice, or clerk, shall grant an attachment against the estate of such debtor, wherever the same may be found, or in the hands of any person indebted to, or having any of the effects of the defendant, or so much thereof, as sliall be of value sufficient to satisfy the debt or demand, and costs of such com- plaint ; which attachment shall be returned to any court where the suit is cognizable, and shall be deemed the leading process, and the same proceedings shall be had thereon, as on judicial attachments. Also on behalf 2. When a person, who shall be an inhabitant of another the^sta'tcT" ° government, and cannot be personally served w'ith process, against anon- shall be indebted to any one, a resident of this State, and hath sTc. 6 s.~2. any estate within the same, the said judges, clerks, or justices, may issue an attachment against the estate of such debtor under the rules and regulations before mentioned, and the same proceedings shall be had thereon. 3. Every judge, justice, or clerk, before granting an attach- whi'c'Cwithtiie ment, shall take bond and security of the party for whom the aflidavit, must gfime siiall be issued, his attorney or agent, payable to tlie de- court.— R. S. fendant in double the sum for which the complaint shall be c. e, s. 3. made, conditioned for satisfying all costs which shall be Not to Issue without bond, Chap. 7.] attachment. 93 awarded to such defendant, in case the plaintiff shall be cast in the suit, and also all damages which shall be recovered against the plaintiff in any suit which may be brought against him for wrongfully suing out such attachment; which bond, together with the affidavit of the party complaining subscribed with his proper name, shall be returned by the judge, justice, or clerk taking the same, to the court to which the attachment IS returnable ; and every attachment, issued without bond and affidavit taken and returned as aforesaid, shall be abated on the plea of the defendant. 4. The attachment shall be in the following form, namely : The State of North Carolina, To the sheriff, constable, or other officer (as the case may be) of the county of greetino- : Whereas A. B. hath complained on oath before the sub- Form of at scriber, that E. F. is justly indebted to him in the amount of ''■"^'"°''°'- , and oath having also been made that the said E. F. hath removed, or is about to remove, himself out of your coun- ty, or conceals himself, or absents himself from the county or State, so that the ordinary process of law cannot be served on hnn, (or is an inhabitant of another government, as the case may be) ; and the said A. B. having given bond with security, according to law : We therefore command you that you attach the estate of the said E. F. which may be found in your coun- ty, or so much thereof, repleviable on security, as shall be of sufficient value to satisfy the said debt and costs, and such estate in your hands to secure or so to provide, that the same may be liable to further proceedings thereupon to be had at the court to be held for the county of at on^he Monday of next, (or before a justice of the peace of the county of within thirty days from the date hereof) so as to compel the said E. F. to appear and answer the complaint of the said A. B. when and where you shall make known to the said court (or to the said justice of the peace) how you shall have executed this writ. Witness, judge, or justice, or clerk of said court, the day of and in the year of American In- dependence. And the said attachment shall be signed by such judge, or justice, or by the clerk of the court, who may grant the same. ° The bond to be given upon obtaining such attachment shall be as follows : — Know all men by these presents, that we of the Fomi ofbond. county of are held and firmly bound unto E. F. in the sum of to be paid to the said E. F., and for the i)ay- ment thereof bind ourselves and our heirs firmly by these pres- ents, sealed with our seals, and dated the day of a. D. Tlie condition of the above obligation is such, that whereas A. B. hath prayed and obtained an attachment against the estate of the said E. R, for the sum of returnable to 94 ATTACHMENT. [CuAP. 7. the court to be held at on (or before a justice of the peace, within thirty clays from the date hereof): — Now if the said A. B. shall prosecute his said suit with effect, or in case he fail therein, shall well and truly pay to the said E. F. all such costs and damages as shall be awarded and recovered against the said A. B. in any suit or suits which may be hereafter brought for wrongfully suing out said attachment, Atta hment then the above obligation to be void, otherwise to remain in not abated for full forcc and effect. Provided, hou'cver, That no attachment — 'r's^Vc'™" s'l^ll ^^ abated for tlie want of form, if the essential matters 4. " ' ' " expressed in the foregoing precedent be set forth therein. repkvy™! gh- ^- When any estate shall be attached under any attachment, ing bail-bond, judicial or original, the defendant, his attorney, or agent, may at any time before final judgment or writ of inquiry executed, replevy the same by giving a bail-bond, with sufficient security, to the sheriff or other officer serving such attachment, which bond the sheriff or other officer is required to take ; provided, — k"s°c e^s' *^^* "^ ^^^^ °^ replevy after return term, the plaintiff shall not 5. " ' ' ' ' be delayed thereby of his trial: and the surety in said bond shall have all the powers, and be subject to all the liabilities, except as hereinafter provided, of special bail in other civil cases. Perishable 6. When the estate attached shall, by three freeholders of anTpvocee*ck' the county to be summoned and sworn by the sheriff' or other deposited, &c. proper officer for that purpose, be certified on oath to be perish- — . . c. 6, B. ^j^j^^ ^^^ ^j^^ person to whom it belongs, or his agent, shall not within thirty days after the serving of such attachment, replevy the same, then such estate shall be sold at public vendue by the sheriff or other officer, the same being first advertised at the court house and other public places in his county, at least ten days before the sale ; and the money arising from the sale, shall be liable to the judgment obtained upon such attachment, and shall be deposited in the hands of the clerk of the court to which the process shall be returnable, there to await the judg- ment. Garnishee 7. When the sheriff or other officer shall serve an attach- aBs;rerono'ath. ment on any person supposed to be indebted to, or to have any effects of, the defendant in the attachment, he shall at the time summon such person as a garnishee in writing, to appear at the court to which the attachment shall be returnable, within the first three days of the first term thereof, to answer upon oath what he owes to the defendant, and what effects of the defend- ant he hath in his hands, and had at the time of serving such attachment, and what ctFects or debts of the defendant there are in the hands of any other, and what person, to his knowl- edge and belief; and when an attachment shall be served on any garnishee in manner aforesaid, it shall be lawful upon his Jndgment app(!arance and examination to enter up judgment and award sUce'fij'r ^effects execution for the plaintiff against such garnishee, for ail sums inhishands.— of nioney due to the defendant from him, and for all etfects B. S. C.6, s. 6. _^^^j estate of any kind belonging to the defendant, in his pos- session or custody for the use of the plaintiff, or so much there- Chap. 7.] ATTAceMENT. 95 of as shall be sufficient to satisfy the debt and costs and all charges incident to levying the same ; and all goods and elfects whatsoever m the hands of any garnishee belonging to the defendant, shall be liable to satisfy the plaintiif's j Lodgment and shall be delivered to the sheriff or other officer servincr the attachment. ° 1' J^n?-f "^ garnishee shall be summoned as aforesaid, Proceedings ana sliaU tail to appear and discover on oath as directed, the ''P"','t.p"" court, after solemnly calling the garnishee, shall enter a con- apjlff "° '° ditional judgment against him, and thereupon a scire facias shall issue against him returnable to the next term, to show cause why final judgment shall not be entered against him- and it upMi the due execution thereof, such garnishee shall tail to appear at the next term and discover on oath in manner aforesaid, the court shall confirm said judgment and award execution for the plaintiff's whole judgment and costs ; and if Judicial at- upon examination of the garnishee it shall appear to the court, !,tlTh™ that there IS any ol the defendant's estate in the hands of any rTL.I's™- person who has not been summoned, the court shall upoiV''''^' '• motion of the plaintiff grant a judicial attachment, to be levied m the hands ot every such person having any of the estate of the defendant in his custody or possession, who shall appear and answer, and shall be liable as other garnishees _ a When any garnishee shall deny that he owes to, or has G.™i.hee de- ! «• u possession any property of the defendant, and the plain- "''"'g ''« l'^^ iff shall on oath suggest to the court, the contrary; or whe"i tl^^^^kr any garnishee shall make such a statement of facts that the I' '.""''' "P- court cannot proceed to give judgment thereon, then the court " '' " '■ shall order an issue to be made up, which shall be tried by a •" "7A ""w,"" ^^^" ^'"''^'''^ judgment shall be rendered. W. When the property attached shall be claimed by any Proceediu.. other person, the claimant may interplead, first giving security -•■-•V'"-'- for such costs and damages as may be awarded agSnst him, l^'-i'm-ddm^ and shall at the same time file a petition in writi^ig, settin- -' ''.^V""'?"'' forth the particular property claimed, and by what right J'r ^ ' '' title he claims the same ; a copy of which petition shall be • served on the plaintiff at least ten days before the ne^t court when the court shall order a jury to be impanelled to inquire in whom IS the right of the property levied upon ; and the find- ing of the jury shall be conclusive as to the parties then in court, and the court shall adjudge accordingly. _ 11. When a garnishee shall on oath confess that he has in Specific .r- liis_ hands any property of the defendant of a specific nature ticte confessed tion for tte''', *r '"'■' ,^<^f^^"J-"t by any security or assump^ t'ibf^rr.,. , tion lor the delivery of any specific article, (except as herei i-'"'--^' '""• .i"''""- afterexeepted) then the court shall immediately order a juiT """■■'''"'• to be impanelled and sworn to inquire of the value of such specific property, and the verdict of the jury shall subject such garnishee to the payment of the valuation, or so much thereof as shall be sufficient to satisfy the debt or damages, and costs , of the plaintiff: Provided, that if such garnishee shaU also ^^.^S'eH" 96 ATTACHMENT. [ChAP. 7. onerated bjr state ill his answer, that said specific property was left, or I^rtPie^-R S deposited, in his possession by the defendant as a bailment, or, "'elsrs. '■ ' that he hath tendered said specific articles agreeable to con- tract and 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 delivered, and is still ready to deliver the same ; and such statement shall be ad- mitted by the plaintiff" or found by a jury, then in any such case, the garnishee shall be exonerated by the delivery of such specific articles to the sheriff', who shall proceed as if the at- tachment had been originally levied on the property. judRment con- 12. Whcu any garnishee shaU declare in his answer, that ditional, where ^[^g money or specific article due by him will become payable S^arTdue or deliverable at a future day, and the same shall be admitted or deliverable , ^[^g plaintiff or found by a jury, in such case conditional -k:'s"c! 6,"^ 'judgment shaU be entered against the garnishee, and the plain- ^- ^- tiff may obtain judgment against the defendant for his de- mand, but shall not take final judgment against the garnishee without notice by scire facias. Publication 13. Upon the return of an original of judicial attachment to ^ade^for.de- ^|^g court, if the defendant do not replevy, the court shall cause 4eekr.-E. S. the proceedings to be made known by publication in some c. 6, s. 11. newspaper of the State for six weeks, and after such publica- tion shall have been made, the defendant shall be proceeded against in the same manner as if he had been served with pro- cess and failed to appear and plead. When judicial 14. No judicial process shall be issued against the estate of proo^w may^s- ^^^^ person residing without the limits of the State, unless the e^s'- 12. ' ''' same be grounded on an original attachment, or unless the leading process in the suit has been executed on the person of the defendant when within the State. Attaclimeut 1-5. Attachments shall extend to persons, executors and ad- ™ay 'ssue^^^ ministrators excepted, who for any reason are not subject to be •Sexempr" arrested nor bound to give bail, provided they be absent from '^'h^mar'^ieadthe State, on whatsoever account, so that the ordinary process withOTit^re''- of law cannot be served on them. Provided, nevertheless, plevying. rjij^^^^ ^j^^y gj^j^H ^^g allowed to defend the suit without replevy- ing the property; but such permission to defend shall not restore to their custody the property attached, but tlie same shall remain in custody till it be replevied, and be subject to satisfy the plaintift''s recovery as in other cases. Also to injuries 10. If any one shall do an injury to the proper person, or to person and property of another, and shall within three months Ihereafter ceTincises. abscond beyond the limits of the State, or shall, witliin that time, conceal himself within the State, so that tlie ordinary process of law cannot be served on him, his estate may be attached to answer the damages for such injury, under the same rules as are prescribed for original or jiulicial attach- Within what mcnts returnable to court, provided the attachment be issued time. within three months after the injury done. Chap. 7.] attachmext. qy 17._ If any attachment shall issue under the preceding see- Such nttnch- tion, in any other manner or time than is herein allowed the '"""''' '*™''^<^'l same shall be void, and the court shall not proceed therein. Slrer^'"^ 18. Attachments for debts and demands, within the jurisdic- Attachment Tion ot a justice oi the peace, may be issued by and ao-ainst '"='''™='.i"'^'''=e all such persons, and under the same circumstances, rules and"''""' """"'■ regulations as are mentioned in the preceding sections of this chapter, with the following modifications of those provisions- (1.) lhe_ attachment shall be issued by, and returnable be- Returnable tore, a justice of the peace, within thirty days from the date '""'"' ""■■'? thereof: And all the process issuing thereon shall be return- '''" able before a justice of the peace. (2.) The replevy bond shall be conditioned to appear before Replevy bond, tne justice before whom the attachment is returnable and to ''"'^ '=°"'''''°°- abide by and perform the order and judgment which may be "^' made in the attachment, ^ ■ ?'} ^.^'""j^jiees shall appear before the justice, and be sub- Garnishee to ject to tlie like judgment and recovery as hereinbefore pro- '"PP"''' '""^ ^nded : Provided, hoioever, that, when a conditional judgment ""''"' shall be rendered against him, the scire facias prescribed^'in the twellth section shall be for his appearance at such time and place as the justice shall appoint. (4.) When the estate attached shall, by three freeholders, to Perishable es- be summoned and sworn for that purpose by the officer be ^^ "* ^^ '°''*- certified on oath to be perishable, and the same shall not be repevied in thirty days after attaching it, then such estate shall be sold at public vendue by the officer, in the manner prescribed, and the proceeds be retained by the officer to await iinal judgment in the case. ■ t^'^ i^^f'^ ^^^ ga^iishee shall, on oath, confess that he has Specific ar- in nis hands any property of the defendant of a specific nature ''<'''=' confessed oris indebted to the defendant by a secui% or assumption; hLnSueT' tor the payment or delivery of any specific articles, then the justice shall immediately order three freeholders to be sworn to inquire of the value of such specific property, and their ver- dict shall subject the garnishee to the payment of such valua- tion, or so much thereof as shall be sufficient to satisfy the debt and costs of the plaintiff": Provided, nevertheless, that every garnishee who may on oath confess that he has in his hands any specific property of the defendant, left or deposited in his possession, by such defendant, may always exonerate him- ^nlv^t*; r""! '* ^° ^''"^ constable or other officer who levied Ho.-nnd when sucti attachment, or may levy the execution issued thereon • s^mi^hee n.uj- Provided,f>a-ther, that when judgment shall be entered against t^^ll^^ any garnishee, he shall, on giving security, have the sam? stay :f "^ "'■"<''"''-^- of execution as if he had been original defendant in the suit. ^ ^t' ^^" (0.) When the property attached shall be claimed by any Claimant of other person, and to determine the right thereof a iury may be m'Vr- necessary, the claimant may remove the proceedings to the HusTL'ty next county or superior court, as he may choose, where an ":''\';™ P?: issue shall be made up and tried by a jury: Prodded, /loic^^^^y^^^ 9 " " *' ' pcriuf coui't. 98 ATTACHMENT. [ClIAP. 7. Must give bond ei^er, that the claimant, on removing the same, shall execute for costs. bond with sufficient security to pay the costs on his failure to Ifgarnisheede- prosecute the same with eifect. And when the garnishee ny possession shall deny that he owes to, or has in his possession any prop- ty,proceed?'"^' erty of the defendant, and the plaintiff shall, on oath, suggest ings to be to the justice the contrary; or when any garnishee shall make removec. ^^^^ ^ statement of facts tiiat the justice cannot give judg- ment thereon, then the justice shall return the proceedings to the next county or superior court, as the plaintiff may choose, in order that proper issues may be made up and tried by a jury; and judgment maybe rendered by the court upon the whole cause. Publication for (7.) Upon the return of an attachment before a justice of E!'^S?c^6'sri3 the peace, if the defendant do not appear and replevy, the jus- 14, 15, 16'. ' tice shall cause the proceedings to be made known by adver- tisement at two or more public places within the county, for thirty days; and after such publication the defendant shall be proceeded against, as if he had been personally served with process. Justice to file (8.) The bond and affidavit taken on issuing the attach- attaciiment rnent shall be filed by the justice with his official papers. When real es- 19. When a constable, or other ofHcer, shall attach any real tate is attached estate, in any case returnable before a justice of the peace, and bya'justice, the justice shall condemn the same for the satisfaction of the proceedings re- plaintiff's debt, the justice shall return the proceedings to the — R.'^S. c?6"s! next county court, which may affirm the judgment of the jus- 20. tice, and issue a venditioni exponas, as in case of a levy on land under a magistrate's execution. Property in 20. When any debtor, who resides beyond the limits of the hands of exec- gtate, shall be entitled to any personal estate or effects, or to trator%r'tms- the use of such estate and effects, in the hands of an executor, tee, attachable administrator, or trustee, or any estate in the hands of any one tj\— 'i862,c?5o" which cannot be attached at law, or levied on under execution, the creditor may, Avithout obtaining judgment at law, bring his bill in equity against the debtor (making all proper parties according to the course of the court) and have the same de- creed to the satisfaction of his debt. Creditors may 21. The plaintiff may file his biU when the fund is in the endof'two'^""' hands of an executor or administrator, before the end of two years. years from his qualification, but shall not have a final decree gi've''''rcfunXf.^ for payment within that time ; and shall execute, on obtaining bond to exec'", a decree, if required by the executor or administrator, such a &;c.— 1852, refunding bond as might have been demanded of the debtor c. oU. o o ^ , himself seeking to get possession of the fund. Lien from time 22. From the time of filing the bill, the debtor shall not be i86^o!"cf 5^0."' ~ at liberty to assign his interest in the fund to the injury of the plaintiff. Court may rt- 23. The court, in its discretion, may require of the plaintiff, to'iiKiemni'fy" at any time before or at the decree for satisfaction out of the ex'r, &c., fund, a full and ample indemnity by bond with security, or 1862,'c. 5o!' otherwise, for the protection of the defendant in whose liands Chap. 7.] attachment. 99 may be the fund, against all loss which may arise to him from his being required to account by suit out of the State, for the estate or any part thereof which may be decreed to satisfy the plaintifi''s debt. 24. No decree shall pass for the plaintiff, unless he prove Upon whnt his debt, notwithstanding any decree pro confesso; nor unless P™."**. & t«™s he also prove to the satisfaction of the court, that the debtor W dec'r'lo!'- had not in the State at the filing of the bill, enough estate, on "'^^' ''■ ^^■ which an attachment at law might have been levied, to satisfy his debt or demand. 25. The debtor may, at any time before final decree for sat- Debtormnvre- isfaction, re])levy the property by executing bond with security piey,'''''''"''' payable to the plaintiff, to abide by and perform such decree ^^mgXZ^i^l as may be made against him, and thereupon he shall be per- "^^' "■ ^°- mitted to plead, answer, or demur to the bill, upon such terms as the court may deem proper, having in view a speedy and just trial of the cause : on which bond the court may, at the passing of the decree, render judgment for the amount decreed against the defendant. 26. The plaintiff shall state specially his debt or demand, Plaintiff shall as near as he can, and shall make affidavit of the truth of the f goiaiiY tmi matters contained in his bill, according to his information and make" affidavit belief. of the matters 27. Whenever any debt shall be contracted by the master, 1^52^0.50.'" owner, agent, or consignee of any ship, steamboat, or other j^^^Z^^^o vessel, for or on account of any work done, or materials fur- ' ' ''■ ' " . visions. nished, for the building, repairing, furnishing, or equipping of ^^^*' *=• 2-5' the same, or for provisions or stores for the same, within this State, or on account of the wharfage and expenses of keepino- such ships, steamboats, or other vessels in port, including the expense incurred in employing persons to take charge of the same, such debt shall have a lien on the ship, steamboat, or other vessel, her tackle, apparel, and furniture, and shall be preferred to all other liens thereon, except mariners' wages. 28. Any creditor to whom a debt may be due in manner Mav be ot- aforesaid, may proceed against such ship, steamboat, or other '"~'^"'^' tached and held vessel by attachment, and cause the same to be seized and owner te pL- held for the satisfaction of his debt, as in other cases of orig- ent'-issi. c inal attachment ; and the proceedings in such case shall be ^ ' '' ^' thenceforth conducted as in other attachment causes: Pro- vided, That the presence of the owner or master of any such vessel shall not prevent the proceeding by attachment, as in case of his absence : but the creditor, his agent, or attorney, before suing out his attachment, shall, in all cases, first verify his debt, and the manner in which it was contracted, by affi- davit, and shall enter into bond conditioned for the indemnity of the defendant, in the manner provided by law. ,„i^Y^', ■"; !'"'i"',' ' ^'^ ^- ^^^- '^''^ '""2' «"'•'> 6 !'"«• 245, 5 lb. 384, 4 Dev. 511. Far wuai not: tvrls, 1 Ire. 278; nnhqmdated damvenler's tools: wlien, 1 .Tones, 62. Whil nut: trusts, 10 Ire. 295, 3 lb. 459, 4 Dev. 172; money in hands of clerk; 3 Ire. 365; unliquidalcd damages owing from garnishee, 5 Ire. 374; properly ofjirm for separate debt, 11 Ire. 407, 4 Dev. 367; negotiable note, 11 Ire. 664; mere rights, 2 Jones Eq., 9 Ire. 42. Lien waived byji. fa. 3 JIur. 63. Sect. 3. 1 Dev. 397. Sect. 6. 9 Ire. 197, 3 lb. 459. Sect. 7. Notice creates lien. Bus. 3. Garnishee: vhen liable, 7 Ire. 438, 9 lb. 116; may move to dismiss, 10 Ire. 174; what may plead, 1 Mur. 468; priority of creditors, 1 D. & B. 217. Sect. 9. Practice, 3 Dev. 96. Sect. 10. Interpleading, 6 Ire. 233, 1 D. & B. 202. Sect. 18. (1) 13 Ii-e. 72, 5 lb. 175, (7) 7 lb. 400. CHAPTER 8. ATTORNEY-GENERAL AND SOLICITORS. Att'y-general to attend su- preme court and prosecute in third circuil — R. S. c. 7, s. 1. Section 1. Attorney-genera! to attend the su- preme court aud prosecute in third circuit. 2. Six solicitors appointed; to hold office four years, and prosecute in the cir cuits. 3. Vacancy in tlie office of solicitor, hoiv filled. 4. County solicitor appointed by county court. Terra of office and duty. Section 5. Shall examine clerk's and register's offices, to see they are properly kept; unless excused by a majority of the justices. 6. Solicitor to report the condition of the offices. 7. Clerk and register indictable for omis- sion of duty. 8. Countj^ court to pay solicitors for ex- amination. Six solicitors appointed. To hold office four years, and prosecute in the circuits. — R. S. c. 7, s. 2. Vacancy in the office or solici- tor, how filled. — K. S. c. 7, County solici- tor appointed by CO. coui't. 1. The attorney-general shall attend to all the business which may be carried to the supreme court of the State for adjudication, wherein the State may be concerned or in any manner have an interest. He shall also attend and prose- cute in behalf of the State in the superior courts comprising the third circuit. 2. In addition to the attorney-general, there shall be ap- pointed by joint vote of both houses of the General Assem- bly, six solicitors who shall hold their offices for four years and no longer, and shall attend and prosecute in behalf of the State in the respective circuits for which they shall be ap- pointed. 3. Whenever any vacancy shall happen by the death, re- moval, or resignation of any of the solicitors in the recess of the legislature, tlie judge then riding, or wlio is next to ride, the circuit, wherein such vacancy has happened, shall appoint a solicitor, who shall hold the office until the end of the ses- sion of the General Assembly, which shall first happen subse- quent to lii.s appointment. 4. The court of pli'us and quarter-sessions, a majority of the justices being present, shall appoint an attorney i)ropcr]y qualified to act for and in behalf of the State in the county, Chap. 9.] attorneys at law. jqj ^vho shall hold his o/Hce during the term of four years, and To™ „f office shall prosecute all matters cognizable in the court of pleas and ' quarter-sessions, wherein he shall be appointed, in behalf of the State. and dutv 5. The county solicitor, at or shortly before the session of si.nii examine every court m the county, for which he is appointed, shall ex- "^"'^'^ "'"• amine the offices of the register and clerks of the county and Tef^trrttv superior court, in the presence of the respective officers to ^"^ P™P«'-iy ascertain whether inventories, accounts of sale, accounts cur- " rent, wills, deeds, bills of sale, reports, official bonds, and all other papers required to be recorded and registered, have been duly recorded and registered ; and also whether the several mol?ml.nt.T"^'-?r;^''" '^^","''^ °"* ^"'^ ^^P* ''^ aunlessexcnsed proper manner: Provided, hmvever, that the county court a i^y * ""Jo^'y majority of the justices being present, may dispense with such "^itftl- examination, and the county attorney shall not make such ex- L 2. ' ' ' ammation before thirty days after the rise of each court. fa. rhe county solicitor shall make a faithful report in writ- Solicitor to re- ing _ot the several matters hereby directed to be examined P^t the condi- specially stating in what respect, if any, there has been an' c'eT-i844 f " omission of duty by the officers aforesaid ; and his report in t- ^ ' rela ion to the register and clerk of the county court shall be made to the county court, and in relation to the clerk of the superior court to the attorney-general or solicitor of the supe- rior court, every term of the said court. .,7'nn?— "' it shall appear, by such report, that there has been Cl'k and reg-r an omission of duty in any of the said officers, the county '°<"'='^'l ^"^ court or the prosecutmg officer in the superior court, if in their t7-i8T4:"5: 01 his opinion the public interest requires it, may cause an in- - ^' ^• dictment to be preferred for such reported breach of duty • and on conviction, the defendant shall be fined, or fined and re- moved from his office, at the discretion of the court; Provided however that this indictment shall not exempt any of said officers from being indicted for other breaches of duty as pre- scribed by law. •' ^ 8. The county court shall allow the county solicitor ade- Co. com-t to quate compensation for the duties required of him by the fifth F? ^°"<^i'o'-s and sixth sections of this chapter, to be determined by the '^-784"%. ber'nf "" T^""^^ I ^^J^^^'-^^^ being present, or by any num- '' '■ '■ ber of justices, which, by special law may be authorized to allow claims against the county. Section 1. Attorneys at law licensed by judges of supreme court. 2. I'ersons from other States, licensed, when. 9 CHAPTER 9. ATTORNEYS AT LAAY. Section 3. Attorney to take oaths. 4. To pay a U\x for license. 5. To pay costs of suit dismissed for his failure to file a. declaration. 102 ATTORXEYS AT LAW. [ChAP. 9. Section 6. (iiillty of frauJ, to pay double dam- nges. 7. Not to take greater tax fees than al- lowed by law. Sectiom 8. .lustice of the peace not to practise in the county court of his county. 9. Attorney appointed a justice to resign his claim to practise in the county court. Att'ys licensed 1. Persoxs who may apply for admission to practise as ^•^ilemTcm.rt attorneys in any court, shall undergo an examination before — 'eI'To^m' two or more of the judges of the sui^reme court ; and, on re- ^- ceiving certificates from said judges of their competent law knowledge and upright character, shall be admitted as attor- neys in the courts specified in such certificates. Persons from 2. No person coming into this State from any other State, other states ^^ ^^^^^^ foreign country, with an intention to practise the -R.'s.'c!s™: law, shall be admitted to practise as an attorney, unless he 2. gijall have previously resided one year in this State, or shall produce to the said judges, a testimonial from the chief magis- trate of such State or country, or from some other competent authority, that he is of unexceptionable moral character. Attorney to 3. Attorneys before they shall be admitted to practise law take oaths.- gj^^j,^ j,^ ^^^^^^ ^^^^.^ beloYC the judges thereof, take the oath pre- ' scribed for attorneys, and also the oaths of allegiance to the State, and to support the constitution of the United States, pre- scribed for all public officers ; and, upon such qualification had, and oath taken, may act as attorneys during their good behavior. To pay a tax 4. No attorney shall be permitted to practise until he shall for license.- ^Q^y^g the receipt of the proper clerk, showing that he has K. S. c. o, s. 4. r ^, , . paid the tax for his license. To pay costs of 5. When a plaintiff shall be compelled to pay the costs ot for h^'iHihim his suit, in consequence of a failure on the part of his attorney to'fiio''a'dc"i.t to file his declaration in proper time, he may warrant such ratmn.-U. .S. attorney for all the costs by him so paid, and the receipt of the ' *' clerk may be given in evidence in support of such claim. Guilty of fraud, 6. If any attorney shall commit any fraudulent practice, he damaget-U shall be liable in an action on the case to the party injured, S^c.8, s'. G. '■ and on the verdict passing against him, judgment shall be given for the plaintift'to recover double damages. Not to take 7. If an attorney shall knowingly take or receive, directly or &-mai- indirectly, any other or greater tax fees in civil cases than he lowed by law. [g by law entitled to, it shall be deemed a misdemeanor in Ins -"■ *^- "^^ ^' '■ profession ; and such malpractice being made known to any court, such court shall direct the attorney-general, or solicitors on behalf of the State, to prosecute by indictment for such malpractice; and if such attorney shall be thereupon convicted by the verdict of a jury, he shall be thenceforth dismissed from his practice as an attorney, for one year. ■lustice of the 8 No court of pleas and quarter-sessions shall admit to the Ktis"!' the bar of the court, as a practising attorney, any justice of tlie cotinty court of pgace of that county, until he shall first tender to the court a U.'s.T8,tl resignation of his office, to be by the court transmitted to the competent authority. CrAF. 10.] AUCTIONS AND AUCTIONEERS. 103 9. Whenever any practising attorney in a court of pleas and Attorney ap- quarter-sessions shall accept the appointment of a justice of See tore"/ u' the peace in the county, wherein he so practises, he shall, be- iii^ciaim^tr fore he is permitted to take the oath prescribed for a justice of fountf court" the peace, cause to be entered on the records of said court a - R- "S- c. s, s] resignation of all claim to practise therein as an attorney, so '''' long as he shall keep the oflice aforesaid ; and during the time he shall keep the said office, he shall not be heard or received as an attorney of that court. CHAPTER 10. AUCTIONS AND AUCTIONEERS. Section 4. V.icancy may be filled. 5. Penalty of two iunrtred dollars for acting without appointment. 6. Wliat sales exempt from auction tax. . 7. Fees not to exceed two and a half per cent. One per cent, to be paid by town auctioneers to the town. Section 1. Auctioneers appointed by county court to give bond for faithful discharge of duty. 2. Duties of auctioneers. To render semiyearly to clerk, sworn accounts of auction sales, and amount of tax. 3. Towns may appoint auctioneers, who shall also give bond and be uuder lilie duties. . J-^^^ several courts of pleas and quarter-sessions, a major- Auctioneers Sm after \lfe''i^l^f"^ present, may annually, at the first ?E';'c1JjI,o term, aitti tlie first day ot April, appoint in their respective give bond for counties for the term of one year, not more than three persons cwl^'.fr. to exercise the trade and business of auctioneer therein, each E.'srC 9,s Z^ ot whom shall execute bond in the sum of five thousand dol- lars, payable to the State of North Carolina with ample secu- ^^^7 *°,'^'= JU'^'ged of by the court, conditioned that he will taithfully perform all the duties required of auctioneers. 2. It siiall be the duty of such auctioneers, while they shall Duties of auc- continue in their employment, on the first days respectively of "°"<"^''^- October and April, to render to the clerks of the county courts s^eml'j-eari';- to ot their respective counties, a true and particular account in clerk sworn ac- M^riting of all the moneys made liable to duty by law, for trLil Tnd' which any goods, wares, or merchandise may have been sold p"?'"" °^ '^''• at auction, and also at private sale, where the price of the '''^'''^' goods, wares, and merchandise sold at private sale was fixed or agreed upon or governed by any previous sale at auction ot any goods, wares, and merchandise of the same kind- \vhich account shall contain a statement of the gross amount ot sales by them made for each particular person or company at one time, the date of each sale, the names of the owners of the goods, wares, and merchandise sold, and the amount of the tax due thereon, which tax they shall pay as directed by law : And which statement shall be subscribed by them and 104 AUCTIONS AND AUCTIONEERS. [ChAP. 10. sworn to before the clerk of the said court, who is hereby authorized to administer the oath. And it shall be their fur- ther duty to account with and pay to the person entitled thereto, the moneys received on the sales by them made. Townsm.iynp- 3_ fhc commissioners of the several incorporated towns of K s'lwu a^i'so the State may, in their discretion, appoint during the first week give bomi, and Jn j^p^il in every year, as many as three auctioneers for their duti'es.— li'. S. respective towns, each of whom shall execute bond, to be c. 9, s. 5. approved by the commissioners, payable to the State of North Carolina, in like manner, penalty, and condition as is -pre- scribed in the first section; which bond shall be returned by the commissioners to the clerk of the county court, to be by him safely kept. Vacancy may 4. In case of vacancies, other auctioneers may be appointed c.%*',"s^'6r'^' ^' to fill the same, by the authority first appointing, under the rules and regulations above prescribed. Penalty of 5. No pcrsou shall exercise the trade or business of an auc- wfthout'ap'i''"" tioneer, by selling any goods, wares, or merchandise by auc- pointment.— R. tion, or by any other mode of sale whereby the best or highest S. c. 9, s. 6. bi jjei- is deemed to be the purchaser, unless such person shall be appointed an auctioneer pursuant to the provisions of this chapter, on pain of forfeiting to the State, for every such sale, the sum of two hundred dollars, which shall be prosecuted to recovery by the county solicitor. What sales 6. Nothing in this chapter contained shall extend to any exempt from j |^ auction of goods, Wares, and merchandise made pur- auction tax. — J o^' ' -ii. K. S.c.9,s. 1,2. suant to, and m execution of, any order, decree, or judgment of the courts of the United States or of this State ; or made in consequence of any assignment of property and estate for the benefit of creditors ; or made by executors, administrators, or guardians ; or made pursuant to any law touching the col- lection of any tax or duty, or sale of any wrecked goods ; or to any article the product of the agriculture of this State, in its natural or unmanufactured state ; or to any species of stock or domestic animals; or to any articles of household furniture, or farming utensils which have been in use ; but shall extend only to such articles of goods, wares, and mer- chandise as are the ordinary subject of trafllc and sale by mer- chants and traders. Fees not over 7. The auctioneers shall be entitled to such compensation One''7'erceirt! as may be agreed upon, not exceeding two and a half per cent. to be paiil by on the amouut of sales ; and the auctioneers of incorporated Im'to'tbe™' towns shall retain and pay one per cent, of the gross amount town.— I!. S. c. of sales to the commissioners of their respective towns. 9, s. 7, 11. Slct. 1. 3 Hawks, 234. Chap. 11] bail. 105 CHAPTEE 11. BAIL. Section Skctiox '■ TeZr/ ""Z "^^t""'.'";'" ""^ •"' P™^^-t-S officer to collect for. returned. When sheriff shajl be feiture, and prosecute. special bail. 2. Bail-bouds deemed assigned toplaintifT. 3. Bail shall be special, and proceeded against hy sci.fa. 4. Shall not plead non est factum but on affidavit. 5. May surrender principal before final judg-ment. Discharged thereby in civil cases: but not in criminal, after default. 7. On return that principal is confined, how bail may discharge themselves. Debtor may be detained, where con- fined by order of court, on serving notice of order. Debtor surrendered after final judgment not committed, but on affidavit, as on a ca. sa. 8. Debtor confined for want of bail may give bail. Bond returned to next court. 9. Matters of defence good for principal, —J ~- good for baih taken. Consequence in civil cases; 10. Costs paid by bail in certain cases. — in nriTninni nncaa IF A^e- — j.^.i. ..-. -r. ., .. _ 6. Persons sxirrendered may give other bail. Exception thereto may be ._. , ,^ ' --■ ------ i'M.i'a uj wail in utirwun cases. -.n eumm.a cases. If defendant 11. Bail not discharged by amendment be released, shenflfindictable. Duty | of process, unless, &c Of 1; JT!f7 "" ^''^ '^'""^l '^T ^'■°™ ^"y °f *^« S^Pe^Or courts ^^-henandhow ot law, or from the courts of equity in cases where bail may be baji-bond taken required or from any of the courts of pleas and quarterages ""'• sions M^hereby the sheriff or other officer shaU be commanded to take the body of the defendant to answer to an action, Ml or petition in any of the said courts, such sheriff (or otlie offi- cer) shall take bond with sufficient security in double the sum for which such person shall be held in aiTest, (executors ad administrators excepted,) and shall return the bond wiSi tiie r ^k""-! "\f '? ^.'f '''°"^' °'' "^'^•^^ offic'^r shall fail to take ^^^'en sheriff taken n^i"' Y^ '"^""'^ ^' ^'"^"^ insufficient on exception S'^Wc' he .17 u If ^'f '.r^ ^"'■™' ^° ^^hich such process shall ^o '• i be leturnable, the sherffi or other officer, having due notice hereof .hall be deemed and stand as special bail, and the 2. Upon the return of bail-bonds into court, thev shaU be Kaii-^onds deemed, without any indorsement to that efi'ect to he ^^ ^■'""f."", ■ signed to the plaintiff therein named. ' ' ''" ^^^^t'T d. Bail in civil cases taken according to the directions ofiSif-h-,iM his chapter, shall be deemed special ball, and as uc l^^SbL 'pecitrn!i° out elf \'' recovery of the plaintiff: but he shall not sue J^'Xft . out execution against the bail, until a scire facias shall h5 e-'^-R- "^- - the'XS;r",'° '•'" .'"'= "^^^ ^'^'^" af(er judgment f;:^:Vi;tl^^^"- tne plaintiff ,n such scire facias, execution may issue aoainst Pvpr.nt;!l ?/ ''"^ '(^ire facias against bail shall be returned •'^•■■■■ii not plead executtd, they may appear and plead as in other cases- but ,"'"; "'-Sf"', uVttreo/h" 'V"fr^ '''■"'' "°^' "^^ '-eceived.unles; Z-uT^X truth thereof be verified by affidavit filed with the plea. ^- '■ 106 BAIL. [Chap. 11. May nrrest and 5_ The bail shall have liberty, at any time before execu- diTbtfore""" tion awarded against him, to surrender to the court from filial judgment, which the process issued, or to the sherift' having such process to return, during the session, or in the recess of such court, the principal, in discharge of himself; and such bail shall, at any time before such execution awarded, have full power and authority to arrest the body of his principal, and secure him, until he shall have an opportunity to surrender him to the sheritf or court as aforesaid ; and the sherift' is hereby required to receive such surrender, and hold the body of the defendant in custody, as if bail had never been given : Provided, liow- Discharged ever, that, in criminal proceedings, the surrender by the bail, "^but'nol after the recognizance forfeited, shall not have the etVect to in criminal. — discharge the bail, but the forfeiture may be remitted in the — 1848, c"'r. * manner provided for. Persons sunen- 6. Any person surrendered in the manner specified in the otherS^'"' foregoing section, shall have liberty, at any time, before final Exception judgment against him, to give bail ; and in case of such surren- tokerTonst der, the sheriif shall take the bail-bond or recognizance to the quence in civil succeeding court ; and in case the sheriff' shall release such Sna/'cases. person without bail, or the bail returned be held insufficient. If defendant be on exception taken the same term to which such bail-bond [ndlctabif''"'^ shall be returned, and allowed by the court, the sherift', having Duty of prose- d^ig notice thereof, shall be deemed and taken, in civil cases, cStlfdt!" as special bail ; and, in criminal cases, the sheriff' shall forfeit ure, and prose- to the State the sum of one hundred dollars, to be recovered im'."!^'^'''' on motion in like manner as forfeitures for not returning pro- cess, and be subject to be indicted for misdemeanor in office ; and it shall be the duty of the prosecuting oflicer to collect the forfeiture ; and, in case of a release, the sheriff' shall be liable for an escape, and prosecuted as provided for in sections thirty-five and thirty-six of chapter thirty-four, entitled " Crimes and Punishments." On return that 7. When the sheriff' shall return upon a scire facias, in a confined' how civil case, that the principal is imprisoned by virtue of any bail may dis- proccss, civil or criminal, and he shall be then actually con- stwef? 'Debtor iined in prison, this shall, if then pleaded by the bail, be maybede- deemed a surrender of the principal and discharge of the bail. fi'fined'by'or- And the couvt, on motion of the plaintiff', shall order that the der of court, on debtor be detained in custody where he shall be a prisoner, TforfKcbt- until the plaintift''s judgment and costs of scire facias shall be or surrendered paid, or he be otherwise discharged according to law ; a copy jud'montnot of which order being served on the keeper of the prison where committed but the debtor may be confined, before his releasemcnt, shall be afinif ir" sufficient authority for him to detain the prisoner till such or- der be complied with : Provided, always, that no debtor, after final judgment against him, if surrendered in the manner al- lowed by this chapter, shall be committed to the custody of the sheriff", at the instance of the plaintifT, unless the plaintiff' shall make such affidavit as wouhl entitle him to issue a capias ad satisfaciendum. Chap. 12.] bastard children. 207 a If any person for want of bail, shall be lawfully com- ^^''I'tm- cm,- mitted tojail at any time before final judgment, the sheriff, or Sr^'il mr" other officer havmg hmi in custody, may take bail and dis- "-'ve Z™-^ charge him ; and the bail-bond shall be regarded, in every re- f""'' ''"""""'"^ spect, as other bail-bonds, and shall be ret'urned and su"d on """■ in like manner ; and the officer taking it shall make special re urn thereof, with the bond at the tirst court which is held atter it is taken. 9 Every matter which would entitle the principal to be Matters of de- discharged from arrest, may be pleaded by the bail in exonera- f™«^.sood for tion of his liabi ity. cAuneia principal, good H' J^.f f^"' ^ *f""« /«"■«« shall issue against any person, Costs paid by as the bail of any other person, and the bail, at or before the ^""^ '" T"'"'" term of the court at which such bail is bound to appear, or Tio.'-s''- '• 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 scire facias, notwithstanding the bail may be afterwards discharged by the death or surrender of the princi- pal, or otherwise. ^ 11. No amendment of process shaU discharge the bail of B .ii not dis- the party arrested thereon, unless the amendment be to enlar-e '^''"'^f ''^^ , the sum demanded beyond the sum expressed in the bail"bond v^Z:£, &e. Sect. 5. Surrender, 3 Dev. 431, lb. 392, 1 lb. 91, 2 lb. 254. CHAPTER 12. BASTARD CHILDREN. ^'^o-'^-'o^ 1 Sectio.x 1. A single woman big with cliild, &c., refusing to declare the father, to pay a fine, and give security, &c. If she declare the father, he shall give security to perform the orders of court. 2. Persons charged bound over, though child not born. 3. Process to issue against the person charged and failing to appear. 4. Issue made to try paternity. If found against him, or there be no issue, he shall maintain the child and pay costs. 5. Appeal by State. 6. Examination to be within three \-ear3 after birth of child. 7. Execution may issue for maintenance of bastard. 8. Illegitimate children may be legiti- mated by county or superior court. Decree recorded. 9. Effects of such legitimation. Legiti- mate in all respects, as to the father. _ 1. Any justice of the peace, upon his own knowledo-o, or Asin-io w information made to him, that any single woman within his '^12^^ with 108 BASTARD CHILDREN. [ChAP. 12. fusing to (le- county is big with child, or delivered of a child or children, Clare the toher, ^ cause her to be brousfht before him, (or any other justice and give seou- of the county,) to be examuied upon oath respectuig the rity, &c. 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 of North Carolina, with sufficient security, to keep such child or children from being chargeable to the county, otherwise she shall be committed to prison until she shall declare the same, or pay the fine aforesaid and give such bond; but if such If she declare Woman shall, upon oath, accuse any man of behig the father the father,'he of such child or children, he shall enter into recognizance, with curit/toVer- Sufficient security, before the said justice, for his appearance form the orders at the next term of the county court, to stand to, abide by, of is^s!'!-**' and perform whatever order the court may make for the main- 18507 c' 14. tenance of said bastard child or children, and for the indemni- fication of the county against any charges for such mainte- nance, otherwise he shall be committed to prison until he enters into such recognizance. Persons oharg- 2. The justice aforesaid, at his discretion, may bind to the thou°irchiir'^' "*^^* county court him that is charged as afol-esaid to have be- norifora*!— R. gotten a bastard child, which shall not then be born, and the ^'isoo^'c^'ii" county court may continue said person upon security until the " '"' woman shall be deUvered, that he may be forthcoming when the child is born. Process to issue 3. Whenever a justice, as aforesaid, shall bind any person, LTcifarged''" charged with being the father of a bastard child, to the next and failing to county court, as above prescribed, and he shall not appear cfir's'.'i.'^' ^' agreeable to his recognizance, or whenever a woman shall swear a child to a man in manner aforesaid, and he shall ab- scond, or so conceal himself that the process of the justice cannot be served on him, the county court, on the return of the recognizance or other proceedings from the justice, may order their clerk to issue a capias or an attachment, (at the discretion of the court,) to any county within the State, against the person so charged; and the same proceedings shall be had thereon as in other cases of capias or attach- ment. Issue made to 4_ Whenever any man, in the manner aforesaid, shall be try paternity, j^^pj^ggj (^y ^ single woman of being the father of her bastard child or children, upon the return to court of the recognizance, capias, or attachment, as the case may be, he shall be entitled to have an issue made up to try whether he be the father of snch child or children ; upon the trial of which, the examina- tion of th(> woman, as aforesaid, taken and returned to court, shall be presumptive evidence against the person accused, sub- ject to be rebutted by other testimony wiiich may be intro- If found against duccd by the defendant; and if the jury shall find that the him, or there person accused is the father of such child or children, he shall slmiTnittoain stand charged with the maintenance tiiereof, as the court may the child and order, and shall give bond, with sufficient security, payable to s'o.Ts''*^- the State of North Carolina, to perform said order, and to in- 1850, c. 16. Chap. 12.] bastard children. 109 demnify the county where such child or children shall be born Irom charges for his or their maintenance, and may be com- mitted to prison until he find sureties for the same, and shall be liable for the costs of the issue : and the like order may be made by the court, and such security required of any man who stands charged as above, and does not apply for such issue to be made up; and in default of security, he may be committed to prison as above prescribed. 5. In the trial of all such issues, the county solicitor may Appeal by appeal to the superior court whenever he shall think that ius- state._R. s. o. tice has not been obtained. ^ ^^' "• ^• 6. All examinations upon oath to charge any man with Ezamin'ntobe being the father of a bastard child, shall be taken within three *'""" 9''^ years next after the bii-th of the child, and not after. SofSlnd. 7. When thecourt shall charge the reputed father of a bas- 7^ ^- "■ ^^' tard child with Its maintenance, and the father shall neglect Execution may to pay the same, then the county court, notice being served on jr'/"'"""' . the defendant at least ten days before the sitting of court, o" =lr-K?' such notice being returned by the sheriff 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 or children: Provided, that the party aggrieved by such non-payment shall apply for the same. 8. The putative father of any illegitimate child, who was Illegitimate unmarried at the time of its birth, may apply by petition in t^"\'^'^'^ ""^^ writing to the county or superior court o^f the' c'ou^nt'y ^^ wMch b^ c.?— A" the father may reside, praying that such child may be de- '=°"'- Glared egitimate; and if it shaU appear that the petitioner is Decree record- reputed the father of the child, the court may thereupon de- f-^' «■ "=• Clare and pronounce the child legitimated; and the clerk shall l:t '■"''''' record the decree. 9. The effect of such legitimation shall extend no further Effect, of sucU tlian to impose upon the father all the obligations which ''^sitimation. lathers owe to their lawful children, and to enable the child to mhent from the father only, his real estate, and also to entitle such child to the personal estate of his father, in the same Sdrth^n.!?' '"? '".'^™ \" '"^T^"^ ^^'^'^'"^'^ ; ^"d in case Legitimate in ^il n , intestacy, the real and personal estate of such ^H '-espects as chid shall be transmitted and distributed according to ihe'^TH^tJ staute of descents and distribution, among those who would ful wedlock ""''* °^ ^""' "' '^'' ^' ^'""^ ^""" ^"^'^ "^ 1^^- bECT. 8. 1 Ire. Eq. 28, i Dev. Ho 10 110 BILLS, B0^'D3, ETC. [Chap. 13. CHAPTER 13. BILLS, BONDS, AiSID PROMISSORY NOTES. Section 1. Bills, bonds, and notes, for money, ne- gotiable as inland bills of exchange. Lidorsee may sue in case; or in debt ■where obligee may thus sue. 2. Orders in -n'ritingi drawer or acceptor liable thereon. Protest for non-ac- ceptance, and notice necessary, be- fore suit against drawer. 3. Days of grace on bills, &c., except those payable on demand. 4. Interest on bills, &c. ; when to accrue. 5. Bills, &c., payable on demand, to bear interest. Sectios 6. Also contracts for delivery of specific articles. 7. Also bills of exchange from time when payable. 8. Damages on protested bills of ex- change. 9. Protest of notary, &o., evidence of demand, &c. 10. Indorsers of negotiable securities lia- ble as sureties. 11. Bonds payable to clerk, &c., for bene- fit of suitors, suable in name of State. Bills, bonds, and notes for money, nego- tiable as inland bills of ex- change. Indorsee may sue in case. Or in debt where tlic obli gee may thus sue. — K. S. 0. 18, s. 1-3. 1. All notes signed by any person, body corporate, or by the servant or agent of any corporation, banicer, merchant, or trader, who is, or shall be usually intrusted to sign such promissory notes for them, whereby such person, body cor- porate, or the servant or agent of any corporation, banker, merchant, or trader, shaU promise to pay any 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 corpora- tion, banker, merchant, or trader, to whoiu the same is made payable ; and the person, 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 they might upon inland bills of exchange ; and the same, as likewise all bonds, bills, and notes for money, with or without seal, and expressed, or not, to be payable to order and for value received, may be assignable over in like manner as in- land bills of exchange are by custom of merchants in England : and the person, body corporate, or the servant or agent of any corporation, banker, merchant, or trader, to whom sucli jM-omis- sory note, bill, bond, or sealed note is assigned or indorsed, may maintain an action on the case against the person, body corporate, or the servant or agent of any corporation, banker, merchant, or trader, who shall have signed sucli promissory note, bond, bill, or sealed note, or any who shaU have indorsed the same, as in cases of inland bills of exchange : I ronded, always, that the indorsee op: assignee of any bill, bond, or note, ■ under seal, may maintain an action of debt on the same in Ins own name, as indorsee or assignee, provided the original obligee could have maintained an action of debt on the same bill, bond, or note with seal. Chap. 13.] bills, bonds, etc. m writ- 2. When any person by order in writing signed by him, Or,!er« m wr shall direct the payment of any sum of money in the hands or '"S -drawer,. possession of any other person, to the bearer, or any person Son' ''^''" whatsoever, the money therein specified shall, by virtue there- of, 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 acceptance thereof by him by whom the same shall be made payable, and damages may be recovered: Provided, nevcr/Jie/ess, that none shall commence any suit Protect for agamst hmi who shall give such order for the money therein """-"ocept- mentioned, before the same shall have been first protested for notice tweof non-acceptance, and notice given thereof to the drawer- and if before suit suit shall be brought on such order before notice and refusal ^^Ts t'lT' to pay as aforesaid, the plaintiff' shall be nonsuited. =• 2- 3. All bills of exchange payable within the State, at sight. Days of grace or at a future day certain, in which there is no express stipula- exoemifc tion to the contrary, shall be entitled to days of grace as the iSe oTde- same are allowed by the custom of merchants on foreign bills '"'™0, 3 Dev. 228. UUjhIi af imtmsee, 2 1). & H. 283. Kote pnrj- able at parlhnhir phne, 2 Junes, 23, 13 (re. 76. J-'ailure of consideration, 2 D. & B. 338. Sale inthiiul iiidoisi-ment, 12 Ire. 324. Suit by assir/net, 11 Ire. 227. Kkct. 2. l.iahilily of acceptor, 4 Dev. 367. Notice of protest to drawer, 1 Ire. 262; on inland bill, 2 Ire. 134; waived, 3 Ire. 347; where to'be saU, Rus. 371, Ire. CIC, 3 Hawks, 453; to fraudulent indorser, 2 Dev. Kq. IH; form of, 2 Hawks, OUU; bow 2>roved, 2 Dev. 67. Sect. 3. ISmids : dmjs of i/race on, 3 Hawks, 10, lb. 405. Skct. 5. 11 Ire. 664. Sect. 8. 5 Ire. 551. Sect. 10. Hire. 62; 2 Jones, 29. Chap. 15.] BOOK DEBTS. 113 CHAPTER 14. BOATS AND CANOES. Section 1. Trespass on boats, &c. Penalty and damages. Section 2. Slaves guUty, to be whipped. 3. Penalty not to extend to certain cases. 1. Any person who shall take away from any landing or Trespass on other place where the same shall be, or shall loose, unmoon or l'"'\^''- , turn adrift from the same, any boat, canoe, or pettiamia, be- daZgL'^iR. longmg to or in the lawful custody of any person- or any ^- '' ^*' '• ^'2- person who shall direct the same to be done without the consent of the owner, or the person having the custody or possession of such boat, canoe, or pettiagua, shall forfeit and pay to such owner, or person haying the custody and posses- sion as aforesaid, the sum of two dollars; and the owner may also have his action for such injury. 2. If any slave s^hall offend against the provisions of the slaves gnilty above section, and be thereof convicted, he shall be whipped '» b« "^ipped. not exceeding thirty-nine lashes. -f ^- "■ i*. 3. The penalties aforesaid shaU not extend to any person Pettity not to Who shall press any boat, canoe, or pettiagua by public f"-'"^"'* '" '"i- authority; nor to any slave taking the same Ly ord^er of his s'l'^. l^:tl'- master or overseer. ^ CHAPTEK 15. BOOK DEBTS. Section have not elapsed before death of creditor. 3. Copies of accounts evidence, unless notice to produce original. 4. Books admissible in all rfourts, and contestable as other evidence. Section 1. In what actions, for what sums, and within what times, book accounts may he proved by plaintiff or de- fendant. 2. Or by executors and administrators. How proved by them. Time en- larged for such proof, if two years 1. When any person shall bring his suit in debt, or in case, In whatac- upon a contract or any person shall plead, or give notice of, a "Z' n"'","''-'" set-off, for goods, wares, and merchandise by him sold and wi"w'n what aeiivered, or for work done and performed, he shall file his •'"^'' ^°"^ ",<^- account with his declaration, or with his plea or notice of set! ^Xed i'^ '' oH, and if upon the trial of the issue, or executing a writ of Fij^'f "'i/'S- inquiry of damages in such action, he shall declar? upon hisfits^M'- corporal oath, that the matter in dispute is a book account, 10* 114 ' BOOK DEBTS. [ClIAP. 15. 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 evi- dence, if he shall make out by his own oath, tliat it doth con- tain a true account of all the dealings, or the last settlement of accounts, between them, and that all the articles therein contained and by him so proved, were bona Jide delivered, and that he hath given the opposing party all just credits; and such book and oath shall be received as evidence for the sev- eral articles so proved to be delivered within two years next before the commencement of the suit, but not for any article of a longer standing, nor for any greater amount than sixty dollars. Or by execii- 2. In suits where executors and adminish-ators are parties, istrato^!'''"""" 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 that case. How proved by the executor or administrator may prove by himself, that he them. found the account so stated on the books of the deceased ; that there are no witnesses, to his knowledge, capable of proving the delivery 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 Time enlarged is therein mentioned : Provided, hoivever, That if two years for such ^proo^ shall not have elapsed previous to the death of the deceased, not e^iap?ed'be- the executor or administrator may prove the said book account, creditor-R'^S '^ ^'^^ ^'^'* ^^^^^ ^'^ Commenced within three years from the f.%5,T2. ' ■ delivery of the articles : And provided, further, That whenever by the aforesaid proviso the time of proving a book account in manner aforesaid is enlarged as to one party, to the same extent shall be enlarged the time as to the other party. Copies of ac- 3. A copy from the book of accounts proved in manner dencT unless above directed, may be given in evidence in any such action notice to pro- or set-ofl' as aforesaid, and shall be as available as if such -R s'^c'^is book had been produced, unless the party opposing such proof s. 3.' ' ' ' shall give notice to the adverse party or his attorney, at the joining of the issue, or twenty days before the trial, that he will require the book to be produced at the trial ; and in that case no such copy shall be admitted as evidence. Boolss admis- 4. The evidence made admissible by this chai)ter in suits at cl'llrtl^aml law, is hereby declared to be admissible to jirove the same coiitestabie as matters in any court or cause ; Provided, always. That the -r!" s"c!"i5', same may be confronted and contested as other evidence. Sect. 1. Plf. must prove delivery, 11 Ire. 4ir>. Price, 3 Ire. 77. All just crediti, 13 Ire. 4(il. Amount over%ti=^11 enter judgment, and issue exe- cution therefor against the said companyf npf UP°" f ^plaint made to a justice of the peace by any For sheep !n- person that his sheep have been killed or damaged by a do- ■'"t^^ ""S?- the justice shall issue his warrant directed to any lawful ofii- '"•*" cer, commanding him to bring before said justice, within thirty days from the date of said warrant, the owner of such dog, o^ the master of any slave, or parent of any minor child, reputed to be the owner; and the justice shall summon to appear, at the same time and place, three freeholders, who, together with ?enTnt ' '-f"' ''' If''^"""'?^ °^ ^°^'^ e'ompl^ina^nt and de- IZf u fl '^ "P°"w'" ^'■'^'' ^'^^^ J"«ti^e ^"d a majority of nm- rhife f. , f"!^"*^?^' r ^y '^" '^"g °f the slave or mi- noi child of the defendant, the justice shall render iud-ment against the defendant, in favor ^f the compla nan , o 1™ m not exceeding twice the amount of the real damage' sutain"d and issue execution therefor. ^ --"sutuiLu, shaVbrnri'f"*'"''^''^'""' ^''^'^' °' character of the dog Ignorance of shall^be no detence, m actions arising under the preceding ^-l-^- fence. 118 CHARITIES. [Chap. 18. CHAPTER 18, CHARITIES. Section 1. Trastees of charities to return account of their trusts to county court. 2. If they fail, or mismanage their trusts, attorney-general or solicitor shall call them to account in equity. Section 3. May be sued at the suggestion of two citizens. 4. Attorney-general and solicitor allowed fees in such cases. Trustees of 1. When real Of personal property may have been granted charities to re- ^ deed, will, or otherwise, for such charitable purposes as are turn account j ' ' . ,,.,, ., ^ , , ,, of their trusts allowed by law, it shall be the duty of those, to whom are con- !!.R"s'^c''Tr' fided the management of the property and the execution of s. 1.— ksEiiz. the trust, to deliver in writing a full and particular account <=• *■ thereof to the court of pleas and quarter-sessions of the county, where the charity is to take effect, at the first term which shall be held after the first day of January in each year, to be filed among the records of the court. If theyfail, 2. If the foregoing requisition be not complied with, or there T Tr'^tru™' °at- ^6 rcasou to believe that the property has been mismanaged tmnej-lm.'ot through negligence or fraud, it shall be the duty of the chair- ^"h'^'h'em^to'L- 1"^'^ °f the court to give notice thereof to the attorney-general count iniquity' or solicitor, who represents the State in the superior court of — R. S. c. IS, jj^^^^ f^j ^jjg^|. county ; and it shall be his duty to file a bill in ^' ■ equity in the name of the State against the grantees, e.vecu- tors, or trustees of the charitable fund, calling on them to ren- der a full and minute account of their proceedings in relation to the administration of the fund and the execution of the trust. May be sued at 3. The attorney-general or solicitor may also, at the sug- the'suggestion gestion of two reputable citizens, commence a suit in equity ^Eys'c! kT' as aforesaid; and in either case, the court may make such s- 3- order and decree as shall seem best calculated to enforce the performance of the trust. Att'y-generai 4. The court may allow fees to the attorney-general or and solicitor solicitor for his services, to be paid by the trustees, the estate, allowed fees m ^"' , n , i i l ii i. such ciisos. — or the county, as shall be ordered by the court. E. S. c. 18, s. 4. Sect. 1. What U a charily: emanctpatim, &c., 1 Ire. Eq. 436, 6 lb. 180; /ree school, 2 Ire. Eq. 9, 1 Hawks, 98; Ibepoor, 2 Ire. Eq. 210. Ctmslnu-tiun cy pres, 2 Ire. Eq. 256; Uncerlatnly, 4 Ire. Eq. 19, lb. 26, Bus. Eq. 65, 2 Ire. Eq. 255. Chap. 19.] clerks of the couxty axd superior courts. 119 CHAPTER 19. CLERKS OF THE COUNTY AND SUPERIOR COURTS. Section 1. Clerks of county and superior courts, when and how elected. Returns of election, hpw made. 2. Who qualified to vote. 3. Sheritl' to declare the persons elected. Clerks to hold ofFice four years. Who to decide in case of a tie, and contested elections. 4. Clerks to give bonds and take oaths. On failnre, court to appoint another. 5. Vacancies in clerkship of superior and county court, how filled. How in clerkship of county court between terms. 6. In certain cases twelve justices may accept clerk's bond, unless, c&c. 7. Judge appointing in vacation may empower two justices to qualify and take bond, who shall return bond, &c., to next court. 8. Clerks to give bond in fifteen thousand dollars, for faithful discharge of ev- ery duty. 9. How bonds of the several clerks shall be proved, and where deposited. 10. Registered. Section 11. Kept as records ai*e. 12. Renewed annually. Clerks to pro- duce receipts for all public moneys paid before renewing. 13. Penalty for acting without qualifying. 14. Going out of office, to transfer records, &c., to successors, — or when the of- fice is vacant, to whom the court may appoint. Judge may give order for delivery of records, &c. Penalty for not delivering records, &c., one thousand dollars. 15. Clerk's oflice to be kept at court-house. Deputies how qualified; to act in case of death of clerk. 16. To whom clerks shall resign. 17. County courts, in certain cases, may remove their clerks and appoint others. 18. When clerk of county court removes, how proceeded against. 19. Clerks going out of ofiice, having failed to perform their duties, court may cause duties to be done and recover the amount paid for such service. 1. On the first Thursday of August, in the year one thou- Clerks of conn- sand eight hundred and fifty-seven, and at the same time every %^^^i^ ^,X''°' four years thereafter, a poll shall be opened for the election of and' how eLV a clerk of the superior and county court in each county, by the '''^• same persons, in the same manner, and under the same rules and regulations as polls are opened and held for members of the General Assembly; and the returns of the polls shall be Returns of made in like manner and time, and under the same penalties fiv.?',!"!!:;;'"''^ for omission, recoverable in like manner and by the same per- c"i9';'s. u' sons, as in elections of members of the General Assembly. 2. All persons qualified to vote for members of the house of Who qualified commons in the General Assembly, shall be entitled to vote ^^ lo^s' T "• *' for clerks of the county and superior courts in their respective ' ' " "" counties. 3. The sheriff or other person qualified to hold said elections Sheriffto de- shall, at the court house, declare the person having the highest son'Viocted'" number of votes duly elected clerk of the county or superior '°"' '''"' ' ' court as the case may be ; who shall continue in office for the Clerks to hold term of four years next after their qualification ; and if two or ;'.ei's '""'" more persons have an equal and the highest number of votes for either of the said offices, the court of pleas and quarter- 120 CLERKS OF THE COUNTY AND SUPERIOR COURTS. [ChAP. 19. Wio to decide sessions, a majority of the justices being present, shall proceed election. — R. under the like circumstances; and said court shall be a com- ' ■ ■ petent tribunal to decide all contested elections under this and contested ' to make the election as prescribed for the election of sheriff under petent chapte Clerks to give 4 The clerks elected under the provisions of this chapter, at oattis. the first term of their respective courts, which shall happen after their election, or at the term or time when elected, by the court or justices, shall execute and tender the bonds, and take the oaths prescribed by law; and where a vacancy shall be occasioned by failure to give the necessary bonds, or neglect to On failure, qualify, death, or otherwise, the court in which such failure court to appoint T^ /' 1 n m 1 ■ 1 •■ 1 • another. — R. may happen shall till the vacancy, in the manner prescribed in S. c. 19, s. 4. ^i^g following section for vacancies occurring after qualification, and the person appointed shall continue in office until the next regular election and qualification of clerks under this chapter. Vacancies in 5. Whenever the office of the clerk of the superior or county sup^erlor'and court shall become vacant after qualification of the person county, court, elected, by resignation or otherwise, the same shall be filled for the unexpired portion of the term; that of the superior court, by the judge in whose riding may be the vacancy ; and that of the county court, by the county court at its next term, a ma- How ill clerk- jority of the justices being present ; and if the office of clerk of court, betweeii the couiity court shall become vacant, by the death of the in- terms. — E. s. cumbeiit, between terms, and there shall be no lawful deputy, 1844,' c. 4. the sheriff shall summon the magistrates of the county to meet at the court house, within fifteen days after the demise of the deceased clerk, and a majority of them shall elect a clerk, who shall hold his office until the next regular election by the peo- ple, as provided in this chapter. In certain cases 6. In the absence of a majority of the justices, twelve may may^accapt"^*^^ take the bond of the clerk and qualify him ; but they shall not clerk's bond, accept any bond previously rejected lay a majority. i846*^c. 6? "~ '''• Where any appointment of a clerk shall be made by a Judge appoint- judge in vacation, and it shall be inconvenient for him to qual- ma"empo\ver' ify the person appointed, and take of him the bond required, two^iustices to he may issue a commission to two magistrates of the county bond who sha a for which the appointment is made, authorizing them to ad- return the bond minister the oaths of office, and take the bond; which oaths court."— 1838^ shall be subscribed by the clerk, and with the bond, be re- 0.7,8.1,2. turned by the commissioners to the judge at the next term of the superior court of the county. And in case the evidence, of the appointed clerk having taken the oaths and executed the bond of office, be not exhibited to the judge at the suc- ceeding court; or if the bond shall be unsatisfactory, and is not then made satisfactory, the office shall be deemed vacant and shall be filled by the judge. Clerks to give 8. The clerks of the county and superior courts shall each foTfiiithfurdis- execute a bond with two or more able sureties, in the sum of charge of every fifteen thousand dollars, payable to the State of North Caro- 19 "s. 7- c. 28 lin^ ^"d conditioned for the safe-keeping of the records of their s. 11. Chap. 19.] clerks of the county and superior courts. 121 respective courts, for the due collection, accountino- for and paying all moneys which may come into their hands by virtue of their office, and for the faithfol discharge of the duties of their office in all respects whatsoever. 9. The judges of the superior courts of law shall cause the How beds of bonds taken by them from the clerks of the superior courts "rr^i, to be acknowledged or proved before them, and indorse there- w.^ani '' on a certihcate of such acknowledgment or probate • and the '''""'" '"''1'°'- courts of pleas and quartei-sessions shall cause all bonds taken iM^' ^^ '■ before them of the clerks of their respective courts, to be ac- Jmowledged or proved in open court, and indorse thereon a certihca e of such acknowledgment or probate, which certifi- cate shall be signed by the justice who presides in court at the tune such acknowledgment or proof is made; and all bonds so taken, proved, and certified, shall be deposited in the follow- mg offices namely, the bond of the clerk of the superior court shall be deposited in the office of the clerk of the court of pleas and quarter-sessions ; and the bond of the clerk of the ccRu-t of pleas and quarter-sessions shall be deposited in the ottice of the superior court of the respective counties. lU. ihe clerks in whose offices said bonds shall be depos- Registered.- ited, shall cause the same to be immediately registered in the ^'- '^^ "■ ''' '■ '■ registers office of their respective counties. 1 ^^Vi^'!'' ""^V^! °^^!'*' respective courts aforesaid shall safoly Kept as records keep the bonds deposited in their offices, under the same rules ?S'-~",^ ^- '■ and regulations, as are provided for the safe-keeping of the records of their courts. ^ ^ 12. The clerks of the superior and county courts shall re- Renewed annu- new their several bonds for the faithful discharge of their duties '''"•^'■-^'^■■k t° m office, with good and sufficient security, annually, at the -ip^ fo/ah several and respective terms of the courts at which they were ^f'i T""^' qualified; and such as are qualified in vacation shal/renew -vi^^-R-"" their bonds annually, at the term next succeeding the nuali- ^- '^^ "•'• "• ^ fication ; and such of the clerks, as shall neglect to renew their I respective bonds at the time before mentioned, and give other and better sureties when judged necessary by the said courts, .■^all be considered as having forfeited their respective offices. Provided cdiuays, that no clerk shall be permitted to renew his bond, unless he shall produce from the public treasurer, county trustee, and wardens of the poor, receipts in full of all moneys by him received for the use of the State and county for which he shall have been accountable. 13. Clerks of the superior and county courts, before enter- Rena'tyforact- ing on the duties of their respective offices, shall take an oath '^^^BT of office and also the oaths prescribed for public officers ; and R- s /'".'loTs. f any clerk shall offend herein, or shall enter on the duties of'- ''• tl?l t? ^"^°''%^;^ ^•^^^"^'^^ ^"d delivers to the authority en- titled to receive the same, the bond required by law, he shall wi'iu/f '^f^ ''''° "^°"^""^ ^^'^"^^^' °»^ h^lf to his'use who will sue for ihe same, and the other half to the wardens of the poor of the county where the offence is committed. 11 122 CLERKS OF THE COUNTY AND SUPERIOR COURTS. [ChAP. 19. Goiogoutofof- 14. Upon the going out of office for whatever reason, of recm^s,' &"' to any clerk of the superior or county court, he shall transfer and successors; or, deliver to his succcssor, (or to such person, before his succes- i^'"rto '' sor in office may be appointed, as the court may designate,) ■whomthecourt all" records, documents, papers, and money belonging to the TmfgrZy'' office. And the jadge appointing any clerk to a vacancy in give" order for the clerkship of the superior court, may give to such person ordJ.Tc."'^""'" an order for the delivery to him, by the person having the cus- tody thereof, of the records, documents, papers, and moneys belonging to the office, and he shall deliver the same in obe- Penalty for not dience to such order. And in case any clerk going out of delivering rec- office as aforesaid, or other person having the custody of such Siooo'-K s. records, docaments, papers, and money as aforesaid, shall fail c. 19, S.30. " ' to transfer 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. Cik's office to 15. The clerks of the superior and county courts shall keep beiieptat their offices at the court house in their respective counties, UeputieT hiw where, by themselves or their lawful deputies, they shall give qualified; to act due attendance; and all the deputies shall take the oath to of de^-rsl support the constitution of the United States and of this c. 19, s. 15. State, and an oath of office ; and in case of the death of the clerk of any court in the vacation, his deputy shall hold the office of clerk until another shall be appointed agreeable to law, and shall be entitled to the fees and perquisites thereof until such appointment. To whom 16. No clerk of the county court shall be allowed to resign cierksjhall re- ^fter his qualification, to any other person or authority, but to c'.°r9,s.i6 the county court of his county; and no clerk of the superior court shall be allowed to resign, after his qualification, to any other power or authority, but to the judge of said court sitting in com-t, or to the judge assigned to ride the ne.xt circuit in which is situate the county in which he is clerk. Co. courts, in 17. The court of pleas and quarter-sessions shall have full certain cases, power, ou their clerk being convicted or found guilty on in- Sdm-kland dictmcnt for neglect of duty or misdemeanor in office, to appoint otiiers. remove such clerk and proceed to the election of another, un- 17. ■"■ '^' der the rules prescribed for filUng vacancies in the office of clerk of the county court. wiicn ci'k of 18. When any clerk of the court of pleas and quarter-ses- ""' """low'"" ^'°"s s'^^'l remove from his county, the court may make a rule ™roceede°r on such clcrk, returnable to the next court of pleas and ([uarter- c^il'^s'io''' ^' sessions of such county, to show cause why he sliall not be '*' " removed from his office, for so removing himself out of his county ; which rule shall be served on the clerk if he resides in the State, and on the return thereof, if it shall appear lo the satisfaction of tiie court, that such clerk has so removed, the court shall declare his office vacated and shall elect anotiier, as in other cases of vacancy. But in case such ch'rk resides out of the State, it shall be sulficient service of tiie rule to have it published for si.x weeks, in any newspaper of the Chap. 20.] clerks and masters in equity. 123 State; which publication being made appear at the next court, and proof being made of such removing, the court shall remove the clerk from his office, as in case of actual service of the rule. 19. Whenever, upon death or resignation, removal from ci.,ks ^roin. odice, or at the expiration of his term of office any clerk »"'^io«i«'i>"l afore.^aid shall have failed to discharge any of the dutiei of his peS'llfel;" office, the court, if practicable, shall cause the same to be per- ''""f- "'« tormed by another person, who shall receive for such services, cause ™hL to and as a compensation therefor, the fees allowed bylaw to the '^'' ^one, and re- clerk ; and such portion thereof as may be paid by the county 117 fj^''^^^ may be recovered back by the county, by suit on the official rsTe" ""' bond of the defaulting clerk to be brought on the relation of the ' county. Sect. .3. Reniedvfw cleric tcrongfully excluded, 6 Ire. 155. SECT. i<. What bond covers, 1 Jones, 364, 1 Dev. 426. hECT. 12. Bonds cumulative, 3 Dev. 451. Sect. 15. Ads of deputy not qualified, 13 Ire. 452, 2 Dev. 148, 4 Ire. 355. CHAPTER 20. CLERKS AND MASTERS IN EQUITY. Section 1. Clerk and master appointed by .judge. To hold office four years. Provi- 2. To give bond and take oaths. Same remedies against him, as clerk of the superior court. 3. Judge appointing to vacancy, out of term, may commission two "justices Section to qualify, &c., as iu case of superior court clerks. * 4. Clerk and master shall keep his office within one mile of court house, under penalty of one hundred dol- lars. 5. Shall keep fair records. 6. May administer oaths. 1. The judge of the court of equity of every county shall Clerk and mas- appoint, as clerk and master in equity of such county some 1"'-='^"''""='^ person of skill and probity, and shall ffil all vacancies that r^dfoffice may happen in the same : the said appointments to be made f™'-y^'"«- by the judge in whose riding the county may be when made: and the person appointed shall hold the office for the term of Zlir? r *'" *^"'' of his qualification: Provided, hota- v.o.-.o.-n. s. eiei, that when an appointment shall be made in vacation to ^- 20, s. i. commence before the next ensuing court, it shall continue for IJl'"'"'- "' ^f^'" "^-^^ '^^^^^ t'^^t court, and the bond snail be given accordingly. 2. The clerk and master shall give the like bond, with o-ood 1"° e>y bond and .sufficient security, and take the same oaths before the ""' *'"""'^"'" judges, as prescribed for clerks of the superior courts of law; and m a 1 respects shall be subject to the same rules, regula- tions, and restrictions, with respect to the renewal, probate, 124 COMMISSIONERS OF AFFIDAVITS, ETC. [CuAP. 21. and deposit of the bond, (except that the bond of the ckdc and master shall be deposited in the office of the superior Same remeJies court clerk,) and ho shall be liable to the same remedies upon asainst iiim, as jjjg bond and otherwise, for breaches of duty ; shall incur the courf-K.Tc' same penalties for acting without qualification, and for misde- 20, s. 2. meanors in office, as clerks of the superior courts. Judse appoint- 3. Whenever the presiding judge, in the recess of the court, OTU ofTerm"°^' ^hall fill a vacancy, and it shall not be convenient for him to may empower administer the oaths of office and take the official bond, he *uaiif'-''&c^ as inay cause the same to be done in like manner, and under the in case 'of su'p'r same rules and regulations, as are provided and prescribed for CO. clerks. ^^^^ qualification and taking bond of clerks of the superior courts of law, under like circumstances. C. and M. shall 4. The clerk and master in equity shall keep his office at within one''^'^'' the court house, or within one mile thereof; and any clerk and m'iieof court master failing so to keep his office, shall forfeit and pay to the ''enau^of'"^ State onc hundred dollars, to be sued for and recovered by the $100.-1848, c. prosecuting officer of the superior court of the county. Shall kee fair ^- He shall keep a fair and distinct record of the proceed- records.^°^ ^^^ ings of the court ; and the bills, answers, and decrees shall be regularly enrolled in a well-bound book, kept for that pur- pose. May admiuis- 6. The clerk and master may administer the proper oaths S.^c^M^'sTs!' at all times and to all persons, either witnesses or others, hav- ing business in the court of equity. Sec* 2. ])7w« bond covers, 8 Ire. 7, lb. 168, 2 Jones, 5, lb. 8. CHAPTER 21. COMMISSIONERS OF AFFIDAVITS AND PROBATE OF DEEDS. Section 1. Clerks, and clerks and masters, to be commissioners to take and certify affidavits. 2. Governor may appoint commissiouei's to take and certify probate of deeds, &c., in other States. 3. Such commissioner to take an oath, Section to be filed in secretary's office. His power and authority. 4. Commission recorded by secretary of State, and certified to clerks of coun- ty courtft, and there recorded. Cer- tified copies of appointment or re- moval, evidence. Clerks and 1. The clerks of the courts of pleas and quarter-sessions, raasterrcom- the clcrks of the superior courts of law, and the clerks and raissioners to masters of the courts of equity, are authorized to take and affidavUs'-'u! Certify affidavits, to be used before any justice of the peace, S. c. 21, s. 1. judge, or court of the State; and the affidavits so taken shall be certified under the hands of the said clerks and clerks and masters, respectively; and, if to be used out of the county Chap. 21.] commissioners of affidavits, etc. 125 where taken, also under the seal of the court of which they are respectively clerks and clerks and masters. 2. The governor is hereby authorized to appoint and com- Gov. may ap- mission one or more commissioners in such of the States of P°'°' """""'""s the United States, or in the District of Columbia, or any of Ufy problTf' the territories, as he may deem expedient, who shall continue tie^is, &c., in in office during the pleasure of the governor, and shall haYeTs.c!^";^ authority to take the acknowledgment or proof of any deed, mortgage, or other conveyance of lands, tenements, or hered- itaments lying in this State, and to take the private examina- tion of married women, parties thereto, or any other writincrs to be used in this State. And such acknowledgment or proof, taken or made in the manner directed by the laws of this btate, and certified 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. ■^ J^r*"^ commissioner appointed by the governor afore- Such eommv said, betore he shall proceed to perform any duty by virtue of M''"'!,'"; ?^"'' this chapter, shall take and subscribe an oath, before a justice secyf office. ot 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 commissioner, according to the laws of North Carolina ; which oath shall be filed in the ofl^ce of the secre- tary of State : And thereupon he shall have full power and His power and authority to administer an oath or aflSrmation to any person ^"th°'i u . counts of the State, and keep regular books and statemer^s of -"^'"^^^^^^^^ the .same, which he shall do in the manner following, to wit : 'SXk"' he shall report the net amount which shall become annually i^«' 0^23X4. due and payable from the respective revenue officers to the treasurer of the State, (to the end that he may be informed of the same, and enforce the due payment thereof,) first raising an account and debiting in his books each officer so reported, wliom he shall credit by the amount of such receipts as any of them shall, from tune to time, produce from the treasurer. 5. Ihe comptroller shall open an account with the treas- To keen .n .c urer,m_ which he shall debit him with the amount of eadi --*-"«- respective receipt which the treasurer shall give, according to s!r2^;r5''- the fourteenth section of the chapter concerning the treasurer and which pursuant thereto, shall have been filed in his office and credit him by tlie amount of such warrants and other cash claims as he shall produce and deliver 6. The comptroller shall also raise accounts, and report in And with huii- l.ke manner against individuals who may bJ-come chargeable viduak'.-E."^. on any of the warrants or vouchers paid to them, as though "'''"'' they were revenue officers, taking care not to blend such Re- ports and accounts with any others, which may be raised and made on vouchers m the comptroller's office. 7 All moneys payable to the public, which shall not be Public n>o„ev3 paid in due time, but shall be sued for and recovered, shall -cov^reTb;'' when received be paid into the public treasury by the derk of iT-t^tr ti the court in which the recovery inav be had ; and the receipts ^^!^f"^^ 8 Tlie coinptroUer, on the first day of November, annually B^i^nccsof nc- shali strike a balance against the treasurer and all other public '™"%''"'1 accouatants in an-ears^ and shall biennially report a statement r"A^. of he same to the General Assembly, with whom he shall '• ^- ''•'• '• settle his own accounts for the warrants and other claims re- ceived of the public treasurer; and in the year when the Gen- a like leport to the governor. after ll^Y\^A *^' ^"^J'"' '^''^y °^ *^^ comptroller, immediately Compt-r to re- altei the first day of November, in every year, to prepare the 1™^ """"ally a account of the public treasurer' with tlfe^Sta'te^r^L same S^of.^" shall appear on the books of the comptroller's office for the '""'"' "f"'^=^- year preceding that day, stating the balance of the money n ""'■ the treasury at the last settlement, the receipts into the treas- Sr which ^ year, particularizing the moVy and accom t recdvXffrn V''^""™"^,^"^ ''''''' received, the amount received from each respectively, and a particular statement of the disbursements from the treasury within the same pe io2 t^ the :.T"'^ '■"r'"'"^ '" *^ ^^'^^-"T ■' --' he shall'aiuiex to the said account a statement of the revenue from each sub- 128 CONSTABLES. [CUAP. 24- ject of taxation in every county of the State ; of wliich account and statement the comptroller shall cause to be yearly printed, in pam|)hlet form, two hundred and fifty copies before the third jNIonday of the said month of November; ten copies whereof shall be placed in the State library, five in each of the offices of governor, secretary of State, treasurer, and comp- troller, and five in the University : the residue shall be de- livered by the comptroller to the General Assembly at its next meeting. In addition to such publication, the comptroller Published in shall, in the year when the General Assembly shall not have pIpersTn nou- its regular session, cause the same to be published in two legislative newspapers printed at the seat of government ; and for such 2rs!"9.— 1844, printing and publication, the treasurer shall pay a reasonable 0.17,5.1,2. price on the certificate of the comptroller. In certain cases 10. The comptroller is authorized to administer an oath to teroaA™-R' accountants and witnesses, in support of the justice of such S. c. 23,s. 10. accounts as maybe exhibited to him for liquidation, and to certify the same accordingly. Nowairants 11. No claim, draft, or warrant from the governor or any unless" firsre'il- 0"^ else, except the certificates for the services of the members, teied and cer- clerks, and waiters of the General Assembly, and the certifi- trofien-itT' cates of the clerks of the superior courts for the salaries of the c. 28, s. 11. judges and the attorney-general and solicitors, shall be paid by the treasurer, until such claim, draft, or warrant shall have been entered in the comptroller's office, and charged to the person drawing the same, with the comptroller's order indorsed to the treasurer to pay the same ; and no claim, warrant, or draft, (except as before excepted,) shall be allowed in the settlement of the account of the treasurer, but under the foregoing rules and regulations. 12. The comptroller shall procure and keep an instrument of not less than one and a half inches in diameter, for cancel- ling papers so as not to render them illegible, and the vouchers in the comptroller's office shall be thus cancelled. Instrument for cancelling vouchers pro- cured. CHAPTER 24. CONSTABLES. Section 1. Numher of constables in each county. Town districts, how many. 2. Constables elected annually, in each captain's district. At what time. To (pialify before county court, and give bond. 3. Judges of election, how appointed. Notice given. Qualiflcatioil of elec- tors, licturn made to county court. Section 4. On failure to elect, county court to appoint, and in case of tie or con- tested election, to decide. 6. Penalty for unlawful voting. 6. Vacancies filled by county court. 7. Bond, how conditioned. 8. Oaths to be taken. fl. Power and duty of constables. 10. Constables to execute notices con- Chap. 24.] . constables. 129 Section cerning matters witliin justice's ju- risdiction — by delivering copy. Re- turn evidence. Section 11. Special constables, in certain cases, appointed by justices. 1. There shall not be a greater number of constables in the Numberof con- several counties in the State, than one in each captain's dis- cou'',|f. "' '""^'^ trict, except the districts including the several county towns, ™™^' which districts shall be entitled to two constables each, to be elected as other constables ; and except further, that, when a Town districts, town shall be parted in the division of counties into captains' J"! '"'"TT, di.stricts, each district including a part of such town shall be -le'is", c.'n. ' entitled to two constables, one for the town part thereof, and one for the county part of the district. 2. Within thirty days before the court of pleas and quarter- Constables sessions of any county which shall first commence its sessions ^uylneach" after the third Monday in December, the inhabitants of each captain's dis- captain^s district within the several counties, at the usual place [[^e ^"'^'" of holding the company muster within the district, shall elect ' some fit and suitable peri^on, residing within the bounds of said company, to act as a constable for the succeeding year, who shall be returned to the court of pleas and quarter-sessions of said county, as hereinafter directed; and, upon such return being made, under the certificate of the judges appointed to hold the election, the court shall proceed to qualify the person To quaiifv be- returned, to act as constable for one year thereafter, he first '''"''' ""^^y giving bond with good and sufficient security : Provided, that bond.'-ll^s'' no person shall be entitled to vote for constable of a town %%*'^-^— except he shall live within the corporate bounds thereof; and "" ^' no person living within the corporate bounds shall be entitled to vote for constable for the county part of the district in which the town is situated. 3. The captains of companies within the several counties. Judges of eiec- and in their absence any justice of the peace within the district, ''™' ^ow ap- withm the time prescribed by the last section, shall annually i^'otice given, appoint two discreet and suitable persons to hold said election, who are required to give at least ten days notice thereof, in two or more public places in the district; and every person Q"!>iification of having resided for six months next preceding the election "'"°'''- within the bounds of the district, who is entitled to vote for members of the house of commons, shall be entitled to vote in such election; and the person receiving the greatest number of 1''='"™ «'•''<'=''> votes shall be considered duly elected, and shall be returned, !!TsT24 under the certificate of the judges, to the first court of pleas ^- 3- ' ' ' and quarter-sessions of said county after the election. 4. Should any person elected constable die, or from other On failure to cause fail to qualify and give the necessary bond ; or should *"'' f™"'-'' any company fail to hold an election, then the court which point, nud'hi shall next happen, seven justices being present, shall supply ::;;:^i:t ''re?:, any vacancy occasioned as aforesaid, by appointing some one tion, to decide: residing m the district; and in case there should be a tic in "i^' ^- "=• '*• any election, then the court, so constituted, shall determine ; " " and also determine in all cases of contested elections. 130 CONSTABLES. * [ChAP. 24. Penalty for un- 5. Persons votinsr at such elections not qualified to vote, lawful voting. i 1 1 i i • ■ i , , i i , ■ 1 1 n • — K. S. c. 24, snail be liable to the same penalty, as persons illegally voting '^^ ^- at elections for members of the General Assembly. Vacancies 6. Upou the death or removal of any constable out of the court.— 'rI's.^ ''O'^'i^y J" which he was elected or appointed constable, the c. 24, s. 6. court of pleas and quarter-sessions, seven justices being pres- ent, may appoint another person to fill the vacancy, who shall be qualified and act until the next election of constables. Bond, how con- 7. The bond required from a constable shall be payable to 8.0.24,57?. the State of North Carolina, in the sum of four thousand dol- lars, conditioned as well for the faithful discharge of his duty as constable, as for his diligently endeavoring to collect all claims put into his hands for collection, and faithfully paying over all suras thereon received, either with or without suit, unto the persons to whom the same may be due. Oaths to be 8. All constables, before they shall be qualified to act, shall take, before the county courts, the oaths prescribed for public officers, and also an oath of office. Power & duty 9. Constables are hereby invested with, and may execute — r'."s.^c.''m t^^ same power and authority as they have been by law here- s. 9- tofore invested with, and have executed : and, in discharge of their duties, they shall execute all precepts and process of whatever nature, to them directed by any justice of the peace or other competent authority, within their county or upon any bay, river, or creek adjoining thereto ; and the said precepts and process shall be returned to the magistrates, or other proper authority. Constables to 10. Constables shall likewise execute, within the places concernin"'""^' aforesaid, all notices tendered to them, which are required by matters within law to be given for the commencement, or in the prosecution iuction.^ ^""^' of any cause before a justice of the peace; and the service By delivering thereof shall be made by delivering a copy to the person to be Retui-n evi- notified, or by leaving a copy at his usual place of abode, if in deuce. — R. S. the jurisdiction of said constable ; which service, with the time "■ ' '■ ' ■ thereof, he shall return on the notice ; and such return shall be evidence of its service ; and, on demand of the same, the con- stable shall deliver the notice to the party at whose instance it was issued. Special consta- H. For the better executing any precept or mandate in cases'"appoint- extraordinary cases, any justice of the peace may direct the ed byjustices. same in the absence of, or for want of a constable, to any per- sTiO. ' ' ^o'l 'lot being a party, who shall be obliged to execute the same, under like penalty that any constable would be liable to. Sect. 1. 3. Mur. 146. Sect. 2. 4. Ire. 10. Skct. 4. Apimnhiient expires when, 11 Ire. 436, 10 lb. 329. Skct. 6. 13 lie. 253. Sect. 7. IlnmU: nut aimulaihe, 7 Ire. 198; which linble, 12 Iro. 44, 8 lb. 26, 2 Dev. 489, 9 Ire. 20. Wlml a hmnh of: demand necefsary, 3 Ire. 96 ; miift be pUiintiff's ngent, 6 Ire. 281, 11 lb. 134 ; mw-relurn of lUiim, 11 Ire. 871, 7 lb. 77; elmm orer imisdiclion of justice, 8 Ire. 92; dei/ree of ditii/ence, Bus. 2B, 2 Ire. 211, 3 Dev. 436, lb. 361. H'Ao to sue on, 10 Ire. 58, lb. 45; surety cannot sue as relator, Bus. 318. Chap. 25.] CORONERS. 131 CHAPTEE 25. CORONERS. Section 1. Coroner, one or more appointed by a majority of justices. 2. Bond given and renewed annually: oatlis tal»?!, by-„s,° ol t L,"°J -nll^P E ;» a-'-pSirS'lt^ei-rtt.^^ "- — - - Of aCs -x'zi ts: t£ ti:- pr:ii General powers of corporations. — 1S50, c. 50. Same subject. Fu-st meeting, how notified, when not pro- vidoil for spe- cially. 234 CORPORATIONS. [Chap. 26. purposes of the meeting ; and such notice, ten days at least before the meeting, shall be delivered to each member, or pub- lished in some newspaper printed nearest to the proposed place of meeting. Lands may be 4. Every such corporation may hold lands to an amount held and con- authorized by law, and may convey the same. cTpo'rationsto 5. All corporations, whose charters shall expire by their continue three ^^^^ limitation, or shall be aimulled by forfeiture or oth(;rwise, chartefex- shall nevertheless be continued bodies corporate, for the term pires, to close ^f ^j^^gg ygars after the time when they would have been so their concerns, ^j^^^j^^gj^ ^^^ ^^^ purpose of prosecuting and defending suits by or against them, and of enabling them gradually to settle and close their concerns, to dispose of and convey then- prop- erty, and to divide their capital stock ; but not for the purpose of continuing the business, for which such corporations may have been established, men corpora- 6. When the charter of any corporation shall expire or be tious expire, annulled, as provided in the preceding section, the court of fr'trutteelTp- equity for the county wherein shall have been the usual meet- pointed to set- j^^g oHhe expired corporation, or the court which shall adjudge tietiieiraflairs. ^^o ^pjfgj^^^^.g ^f charter, on application of any creditor of such corporation, or of any stockholder or member thereof, at any time within the said three years, may appoint one or more persons to be receivers or trustees of and for such corporation, to take charge of the estate and effects thereof, and to collect the debts and property due and belonging to the corporation ; with power to prosecute and defend, in the name of the cor- poration, or in the name of such receivers or trustees, all such suits as may be necessary or proper for the purposes afore- said ; 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 final settlement of the unfinished business of the corporation ; and the powers of such receivers may be continued beyond the said three years, and as long as the court shall think necessary, for the purposes aforesaid. Equity juris- 7. The said court shall have jurisdiction in equity of such rlceiTersT application, and of all questions arising in the proceedings trustees. thereon ; and make such orders, injunctions, and decrees therein, as justice and equity shall require. Receivers to 8. The said receivers shall pay all debts due from the corpo- pay debts, and nation, if the funds in their hands shall be sufiicient therefor; plus. and if not, they shall distribute the same ratably among all the creditors, who shall prove their debts in the manner that shall be directed by any order or decree of the court for that purpose; and if there shall be any balance remaining alter the payment of said debts, the receivers shall distribute and pay the same to and among those, who shall be justly entitled thereto, as having been stockholders or members of the corpora- tion, or their legal representatives. Whatexecu- 9. If any judgment or decree, at law or in equity, shall be tlons to issue, rg^dgred against a corporation, the plaintiff may sue out a (its- Their powers. Chap. 26.] corporations. 135 bidder. ivey tnngas or fieri facias, as he may think proper, which may be "n<^ ^-h-it mav levied, as well on the current money, as on the goods, chattels, c'-'ft 7 ''' ^' lands, and tenements of such corporation; and if the judgment ^ ' '' or decree be against any railroad or other corporation, author- ized to receive fare or tolls, the franchise of such corporation, with all the rights and privileges thereof, so far as relates to the receiving 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. 10. In the sale of the franchise of any corporation, the per- Who shall son, who shall satisfy the execution, with all costs thereon or ''"^'"'"'^d the who shall agree to take such franchise, for the shortest jjeriod ^^'''" ^"^"^ of time, and to receive during that time all such f;ire and toll, as the said corporation would by law be entitled to demand, shall be considered as the highest bidder. 11. The officer making sale shall by deed convey to the Officer makin purchaser all the immunities and privileges which by law 'jjjf j.[°, ™"/®- belong to the corporation, so far as relates to the right of fmVand't?,ii, demandmg fare and toll; and the officer shall, immediately""''''''.'™' after such sale, deliver to the purchaser possession of all the proTerty "on- corporate property connected with the franchise, belonging to f""t"''"' such corporation, in whatever county the same may be situ- """'"'• ated ; 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 man- ner and under the same regulations, as such corporation was before authorized to demand and receive the same. 12. Any person who may have purchased, or shall, under Purchaser of a the provisions of this chapter, hereafter purchase the franchise f™°ciiiseto of any railroad or other corporation, and the assignee of such me^es^Too?: person, may recover in such action as the corporation mio-ht P°™t>nn, for have brought, any penalties imposed by law for an injury^to ''""'•^es, &c. the franchise or for any other cause, and which such corpora- tion would have been entitled to recover, during 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. 13. The corporation, whose franchise shall have been sold Liahiiities of as aforesaid, shall, in all other respects, retain the same powers ^oXlue aft'eJ" and be bound to the discharge of the same duties, and liable ''»!«• to the same penalties and forfeitures, as before such sale. 14. Any number of persons not less than five, who may be Cl"^"tabie, lit- dcsirous of engaging in any scheme of charity or benevolence, alK[\,\anun;c5' or lor the encouragement and promotion of education, or in '"■■'"? ™''>'°™- t.he business of mining or manufacturing, at any place within c,^" teT-' "' tlie btate, may, if it please them, become incorporated in the maimer following, that is ; such persons shall, by articles of agreement, under their hands and seals, set forth before the Corporators to clerk of the county court, where such mining is to be con- eroTof 'a"ref' ducted or manufactory established, and in case of any other ment. ° association, before the clerk of the county court of the county 136 CORPORATIONS. [Chap. 26. Articles. where the meetings may be held: — 1. The corporate name. 2. The business proposed. 3. Tlie place where it is proposed to be carried on. 4. The length of time desired, not exceed- ing thirty years except as to mining corporations the term for which shall not exceed sixty years. 5. The names of persons who have subscribed. And, in the case of mining and manufacturing, shall also state: — 6. The amount of capital; and 7. The number of shares, and the amount of each (the Shares of capi- same not less than fifty dollars each) ; and the amount paid in tai not less thim on each share ; whicli shall not be less than one dollar for each 1852, c. 67, s.i. share, nor, upon all the shares, less than one hundred dollars, —1852, c. 81, j^j^(] shall be paid to the clerk of the county court of the proper county ; the payment whereof shall be certified by the clerk and indorsed on the said articles of agreement. fionLreatedby ^'^- '^''^ ^^'"^ articles of agreement, after having been proved letters patent by a subscribing witness, or acknowledged before and recorded Notice ofm-"^ ^y ^'^^ clerk, and such as relate to mining and manufacturing corporation, &- being moreover indorsed with the clerk's receipt of the money tidestobe'pub- ^® aforesaid, shall be transmitted to the secretary of State and lished.— 1852, filed in the department of State ; whereupon the governor, on i'sm'c si^sT ^PP^i'^'^^'O'^' shall issue letters patent, under the seal of the 2, 3.' ' ' State, declaring said persons and their successors to be, and from thenceforth they shall be, a corporation for the purpose and according to the terms prescribed, in said articles ; and shall cause notice thereof to be published in some newspaper printed in the county or nearest to the place, where said articles may be recorded, in which shall be set forth the substance of the articles, and, (in case of companies having a capital,) the amount of capital and value of shares. Fees of ci'k & 16. Every company incorporated by letters patent shall pay isl^'^.-^^er'sT *'^^ clerk of the county court, a fee of two dollars for taking 1852', c. 8i', s. 4, the probate and recording the articles of agreement, also the ^°- expense of publication, and one dollar for the charter, for the use of the governor's private secretary. What fefii^es- 17. The said mining and manufacturing companies may manufact. ° take and hold, and sell such real estate as may be necessary comp's may for the transaction of their business, or for the security and 67, s.T, 2.— collection of their debts ; and as soon as the same may be 1862,0.81, s.i, actually organized, the clerk of the county court shall return ' ' ' to the jjroper officer of the corporation the money paid to him. T'd'bts"ox(fe'ed ^^' ^° such Company shall declare any dividend, when two thirds of its debts, whether due or not, shall exceed two thirds of its assets. — 1652, assets. Letters patent ^^- "^'^^ Secretary of State shall record in a book, kept for recorded by that purpose, all such letters patent issued under the authority ies'lvWence?— "^ *'^'^ chapter ; and copies thereof, certified by the secretary I852,c. 8i,s. 8. shall in all cases be admissible in evidence. Prima fac'e 20. The letters patent aforesaid shall, in all judicial proceed- evidenoe of m- j,,gg Kg deemed »/"iOT4 /flcte evidence of the complete organi- corporation.— 9. ' , . x- <• ,i i- xi u 1852, c. 8i,s. 7. zation and incorporation ol tlie company purporting thereby to have been established. Chap. 26.] corporations. I37 21. No corporation created by letters patent for the purposes Sud, enrpora- liereni allowed, shall, under any pretence, enmo-e in the busi- ''""'' ''"-bidden ness of banking: Provided, hoivever, that in the transaction c?^,^^"''' ot then- busniess, they may make, and take and indorse, when necessary, all such bonds, notes, and bills of exchange, as the particular business may require. 22. Any corporation may convey lands, and all other prop- Howcorpcra- erty which is transferable by deed, by deed of bargain and sale *'°°' ™"v Con- or other proper deed, sealed with the common seal, and signed ul^'l 'o'sT by the president, or presiding member or trustee, and two other niembers of the corporation, and attested by a witness. 2d. Suits against a corporation, when at law, shall be by Suits a<^ain.t process ot summons, reciting the cause of action, and sum- ''"■■'^'™'"-' rnonmg said corporation to appear and answer the same on sT^mts?' tlie proper reiurn day, and shall be prosecuted as other suits at i",<'n"ity by law commenced hy capias ; and when in equity, shall be by r2Cs.lfi^' siibpmia, after the manner of other suits in equity, and be served on the same persons as at law, and shall be prosecuted as suits in equity. 24. The service of summons, if against any insurance com- Process how pany, railroad, banking, or other joint-stock incorporated '"'"'"^ "^ <=<"•- nSe"^' "^"''V'' r"t ^y !^^-^"g ^ -«Py thereof with the ^Zl^,, piesiaent or other head, cashier, treasurer, or director of such membe.-.-R. company. If against the corporation of any city or town, by ^- *=•''■'•'• leaving a copy with the chief magistrate, treasurer, or com*- missioner of such city or town ; and if against any incorpo- rated college, academy, or other literary institution, by leavin- a copy with the president, treasurer, or any trustee thereof'^ and If against any other corporation, by leaving a copy with tlie chiet officer, treasurer, clerk, or any member. And the otticer serving such summons shall return distinctly on whom the service hath been made, otherwise service shall not be deemed to have been made. 25. Whenever it may be deemed proper by the General Information Assembly, or by the governor, or attorney-general, that a iu- ""^ ""= '^''''' dicial inquiry shall be instituted to ascertain whether any cor- K'r^"" poration,by non-user or abuser of its franchises, has incurred a ^^'''^i' ^"^^ ^rth. forfeiture of its charter, or has been dissolved by the surrender ^6: '■'•''' of Its franchises, or by any other mode, the attorney-general, m behalf of the State, shall file an information in the supreme court, or in the superior court of law for the county wherein the general meetings of the corporation have usually been or bylaw ought to be held, setting forth briefly, and without technical forms, the grounds on which such forfeiture or dis- solution is aleged; and thereupon the court shall take such order for enabhng those interested to have due notice of, and make defence against such information, and shall make all reasonable rules for procuring and taking evidence, and having a tair trial of the controverted facts. 26. When the information shall be filed by the attorney- .^""V"'" ""^'t' general, m consequence of the relation of any person, the court "i of .ei.'Zr 12 * — R. S. c. 26, s. 7. 138 CORPORATIONS. [Chap. 26. in its discretion may require bond with approved security from the relator, to indemnify the corporation against the costs of the information. How supreme 27. When this or any other information may be filed in the certai"tife'"' supreme court, the court, in regard to any facts upon which facts.— R. S. c. the finding of a jury may be necessary, may cause a jury to 26, s. 8. Y)Q impanelled in that court, or send the issue to be tried in any superior court of the State. Att'y-generai 28. It shall be the duty of the attorney-general, as herein- to^restoin toI-- ^^fo"-'"^ directed, to file a bill in the nature of a bill in equity, porations from either in the supreme court of the State, or in the court of Dowers'not equity of the county, as hereinbefore directed, to restrain by granted, and injunction any corporation from assuming or exercising any o'ffic"re^t'o ac-" franchise, or transacting any business, not allowed by its char- count, &c. ter ; to restrain any person from exercising corporate franchises not granted; to bring directors, managers, and officers of a corporation, or the trustees of funds, given for a public or charitable purpose, to an account for the management and dis- position of the property confided to their care ; to remove such officers or trustees, upon proof of gross misconduct ; to secure, for the benefit of all interested, the property or funds aforesaid ; to set aside and restrain improper alienations thereof, and generally to compel the faithful performance of duty, and pre- Managers of vent all malversation, peculation, and waste. And in case of personally"^ fraud by the president, directors, managers, or stockholders in liable for fraud, any corporation, the court shall render personally liable to — ^^ . c. 26, gfgjij-Q[.g jL,^(j others injured thereby, such of the directors, managers, and stockholders as may have been concerned in the fraud. Corp'ns how 29. No body corporate, hereafter to be established in the disfohufon^not^ State, shall exist for a longer term than thirty years, unless to extinguish otherwise provided in the act creating the same : but in the gl'^g'^'^J'j '^' "■ case of a dissolution of a corporation by any judgment or decree, the debts, due to or from it, shall not be extinguished. Two years of 30. When any act shall have passed creating a body cor- fe°iture rf char- porate, and the corporators, for two years, shall neglect or fail ter.— R. S. c. to organize the company and can-y into efTect the intent of the ^^'^•■'^' act; or when organized, if they, at anytime for two years together, shall cease to act, then such disuse of their corporate privileges and powers shall be deemed and taken as a for- feiture of the charter. Shares in cor- 31. The shares of stock, in all incorjioratcd joint-stock com- sonal'estate!'— Panics in the State, shall be deemed personal estate; and as K. S. c.26,s. 13. such may be held by aliens. Skct. 1. Cnn sue in its enrporale nnme ojih/, 4 Ire. Kq. 195. Sect. 0. Effect of ilissohtiiim,! Ire. Kq. 358. Skct. 9. £xecutinii iiifniiiM rnijroiid companies^ B Ire. 297. Sect. 24. Whcrf nnil on vhoni process w to be served, 3 Ire. Eq. 471. Sect. 25. Form of information ; viltat a forfeiture, 6 Ire. 456. Chap. 28.] county revenue and charges. 139 CHAPTEE 27. COUNTY BOUNDARIES. Section 3. The military, to be the boundary, un- Section 1. Disputed lines between counties, how settled. 2. Commissioners sworn. Persons em- ployed, to be paid. 1. Whenever there shall be any dispute concerning the dividing line between counties, the county courts of each county, interested in the adjustment of said line, a majority of the justices consenting thereto, may appoint one or more commissioners, on the part of each county, to settle and fix the line in dispute ; and their report, when ratified by a majority of the justices of each county, shall be conclusive of the loca- tion of the true line, and shall be recorded in the register's office of each county, and in the office of the secretW of State. -^ _ 2. The commissioners, before entering on the duties as- signed them, shafi be sworn before a justice of the peace; and they, with all others employed, shall be allowed reasonable pay for their labors. 3. In all controversies in and out of court, where, before such disputed boundary is settled and fixed, it shall be mate- rial to ascertain the boundary, that shall be regarded as the true boundary which is recognized in mustering "the militia. Disputed lines between coun- ties, how set- tled— R. S. c. 27, s. 1. Comm'rs to be sworn. Persons employed to be paid— R. S. c. 27, s. 2. Themilitaiyto bethebound'ry until settled. CHAPTER 28, COUNTY REVENUE AND CHARGES. Section 1. Tax for county purposes laid by ma- jority of justices. 2. Collected by sheriff as State taxes. 3. Fines, &c. to be paid to county trustee. 4. Tax on indictments and suits. B. Sheriff to collect and pay over fines, amercements, &c. 6. Clerk to render annual statement of fines, &c. 7. Penalty on clerk, shcriiT, &c. for fail- ing to pay over county money. 8. Costs of prosecutions paid by county in certain cases. 9. Witnesses for State paid by the county, when. 10. County wherein the offence is done, to pay costs, and receive the fines, &c. 11. County courts may pay certain offi- cers for extra services. 12. Claims, &,c., against the county num- bered by clerk, and copy furnished to chairman, annually. 13. Pen.alty for failing to number claims, &c. His fee for service. 14. A statement of moneys received and paid out for county purposes, to be sot up in the court house. 140 COUNTY REVENUE AND CHARGES. [ChAP. 28. Section 15. Courts to lay tux to pay jurors. 16. Power of county court in disposing of county funds. 17. County court may appoint a commit- tee of finance. Tlieir duty and pow- ers. Section 18. Committee to investigate the county finances, and report to court. Pay of committee. 19. Any officer failing to settle after ten days' notice, to forfeit one hundred dollars. Tax for county 1. The justices of the several county courts, a majority Ev'maforin-'^of being present, at their first court which shall happen after the justices.— R. s. first day of January in every year, shall, for county purposes, c. 26, s. 1. jg^y ^ ^^^ Qj^ Ijjg lands with their improvements situate in the county, and a tax on the free and black poll. Collected by 2. The county and poor taxes shall be collected by the sheriff as State sheriffs of the respective counties, who shall be entitled to the 28^s! 27^^' ^' "^' same commissions and subject to the same rules and regula- tions, in respect to their settlement of the said taxes, with the county trustees and wardens of the poor, as they are in their settlements of the public tax with the treasurer of the State : and they shall also settle with the wardens of the poor, and the trustees of their counties, for the taxes on the unlisted property in their counties, under the same rules and regula- tions as they account with the comptroller of the State. Fines &c to be "^- -'^'^ fi'i^s, forfeitures, amercements, and taxes on suits paid to county in any court, other than the supreme court, shall be accounted trastee. ^^^ ^^^j p^^^j^ ^^ ^l^^^ county trustees, by the oflicer receiving them, for the purpose of defraying the costs of State prosecu- tions and the contingent expenses of the county. Tax on indict- 4. On every indictment, or civil suit, tried or otherwise dis- ™®"'^_^"'^g posed of in the superior and county courts, the parties con- 28, s.' 6, 7. ' ' victed or cast, shall pay a tax of one dollar, and in every suit in equity, a tax of two dollars. Sheriff to col- 5. The sheriffs of the respective counties shall collect and lect and pay j-cccive all fiues, amercements, forfeited recognizances, and over tines, . ' i-iii i, xr^i araercemonts, penalties imposed, adjudged, or decreed by any court oi the ?8°'~8 ' ^' "' ^tate, and shall pay them over to the respective county trus- ' ' ' ' tees or wardens entitled to receive the same, within three months after they shall be received, and shall return a tran- script, at the time of settlement with the trustees, which shall contain the names of all persons, from whom fines, forfeitures, and amercements shall have been collected, and the amount from each person received. Clerk to render 6. The clerks of the several courts shall, annually, on or menTof^'fiues before the first day of January in every year, make a full and &c.— R. S. c.' complete return to the respective county trustees of all such 28, s. 9, taxes, fines, forfeitures, and amercements, wliich shall have been imposed, adjudged, or decreed in the preceding year, the names of the persons who shall have paid such taxes, and of those who have been fined, amerced, or adjudged to have for- feited their recognizance. Penalty on ci'k, 7. If any clerk of the superior or county court, or any clerk fuUingifpay " an^l master in equity, or any sherilV, shall fail or neglect to Chap. 28.] county kevenue and charges.' 141 account for, and pay to the county trustees or wardens of the over county poor of their respective counties, any taxes on suits, or any c'lPslf ^' iines, forleitures, and amercements, as required by this chapter, ' ' ' ' or shall fail to make the returns herein specified, he shall for- feit and pay five hundred dollars, to be recovered, in the name of the State, by the county trustee for the use of the county. 8. In all criminal prosecutions in the county or sui)erior Co'ts of pro-^e- court, when the defendant shall be acquitted, and the court ™mrSer''^ shall not order the prosecutor to pay the costs ; or where the tain cases.-R. defendant, if convicted, shall be insolvent and unable to pay ^- "■ ^^' '• ^^• costs, the officer entitled to fees in said prosecutions, shall render to the county court an accurate fee bill, enuraeratino- the costs due to him; and the county court shall order the county trustee to pay them. Provided, that clerks and sheriffs shall be paid half their fees only, except in prosecution for capital felonies, or for forgery, perjury, and conspiracy. J. Witnesses, summoned or recognized, on behalf of the Witnesses for btate, to attend on any prosecution in the superior or county f'"' ^^''f P''''^ court, where the defendant is insolvent, or by law shall not be JhZ-± S. bound to pay the same, and the court do not order them to be ''• ^^' '■ ^^■ paid by the prosecutor, shall be paid by the county in which the prosecution was commenced. And in all cases, wherein witnesses may be summoned or recognized to attend any su- perior or county court, to give evidence in behalf of the State, and the defendant shall 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. 10. In all cases where the county is liable to pay costs, that County where- county, wherein the offence shall have been charo-ed to be !" ,''''' °''"™'=® committed, shall pay them. And all fines, forfeiUires, and ^<^^^^iZ aniercernents accruing in the case, shall be accounted for and ""'«"'<' l""'' paid to the trustee of that county. 28';'s7it "' 11. The county court shall make such allowance to the C'o- courts may shenft, clerk, or solicitor of the county for extra services, as IZlTiltS' they may think proper and just, which shall be paid by the "ervices.-R county trustee : Provided, that in making such allowances, or ^- '=• ''• '• "' in allowing any other claim against the county, a majority of the justices shall be present, unless otherwise provided. 12. The clerks of the county courts, if so ordered by the Claims, &c. court shall number all claims, orders, and certificates that may l^^l'^'l, be allowed by the court in a book kept for that purpose, and bSby o""rk, they shall annually, the day before the court proceeds to lav '"'I «/r, *■"''" a county tax for the ensuing year, furnish the chairman of the man a™Si'^ court with a copy of the same ; they likewise shall insert the Tn ^- '• '^' ditterent allowances, agreeable to the number, in the tax list " ' with which the clerks supply the sheriffs or collectors, in order that the same may be paid according to their number and priority. 13. Any clerk of the county court, neglecting to perform i>"-iitv for fail- any part ot the duty enjoined by the last section, shall forfeit "'Jfims IT""' and pay the sum of twenty dollars for every such oflbnce, 142 COU^'TY REVENUE AND CHARGES. [CnAP. 28. one half to the use of any person who may sue for the same, His fee for ser- the other half for the county. And such county court may 28°^3 Ysf" ^' ^' allow the clerk, for all such services, annually, any sum not exceeding four dollars. A statement of 14. The court of each county, at the first session after the anTpai/ou't'' ^^^ ^^J of June in every year, shall cause the proper officer for county pur- to publish and set up in some part of the court house, an ■ upYn 00° house! account of the moneys received the preceding year, by taxes — R. s. c. 26, or otherwise; stating also what application has been made ^' ■ of the same, to whom paid, and what claims against the county remain undischarged. Courts to lay 15. The several county courts, a majority of the justices rors.— ^Sf s"c. being present, shall have power to provide for paying the jurors 28, s. 21. of the county a sum adequate to their services, which shall not be less than fifty cents, nor more than two dollars per day, and a sum equal to the daily allowance, for every thirty miles travelling to and from the court ; and for a less distance, a proportionate sum. Power of CO. 16. The county court is invested with full power to direct in"g oVcounty^" ^^^ application of all moneys arising by virtue of this chapter, funds. — R. S. for the purposes herein mentioned ; and to any other good and c. 28, s. 22. necessary purpose for the use of the county. Co. court may 17. The court of pleas and quarter-sessions in every county, mi?t°ee'of ''°"' at any court after the first day of Augtist in every year, a fin.ance. majority of the justices being present, if deemed expedient, may appoint three persons of skill and probity to act as a committee of finance, whose duty it shall be to examine all the records, papers, and documents which have relation to any county moneys in the offices of the clerks of the county and superior courts, and of the clerks and masters in equity, and to audit and settle all accounts between the county and the sheriff, county trustee, or any other officer or commissioner, who may hold any moneys belonging to the county ; and the Their duty and committee are authorized to require each of said clerks, at his c^is'l'.Ts. * office, to lay before them for inspection, such records, docu- ments, and papers as aforesaid, and to require the sheriff, county trustee, and other officer or commissioner of the county, to meet them at the court house to audit and settle their respec- tive accounts, at such time as the committee may designate. Com. to inves- 18. It shall be the duty of said committee to make a full tyfinan(res,°"iKi investigation of all the financial concerns of their county, and report to court, to return a fair and true report to the county court at tiie end of each financial year, setting forth a full statement of their investigation, designating therein all moneys due from the county to individuals, as well as the sums due by individuals Pay of com- to the county ; and each member of the committee shall re- ^"^^■"24. ' ceive not exceeding two dollars per day, for each day he shall be necessarily employed, to be paid by the county trustee. Anyofficerfail- 19. If any clerk, siierifl', county trustee, or other officer or terteu days' no- Commissioner, who may hold any county money, shall fail tice, to forfeit duly to account for the same, the committee of finance shall Chap. 29.] COUNTY TRUSTEE. 143 give such person- ten days previous notice, in writing, of the ?m time and place at which they will attend to make a settle- '^' ^' ment ; and every officer receiving notice, and failing to make settlement, as required by this chapter, shall forfeit and pay one 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 forfeiture. Sect. 1. Power of taxation constiM'umal, 1 Hawks, 408. CHAPTER 29. COUNTY TRUSTEE. Section 1. County h'ustees appointed. 2. Vacancies to be filled. 3. To give bond and take oaths. , 4. To collect all moneys due the county. 5. To call on sheriffs, clerks, and others having county moneys, fdr payment. On failure, summary judgment ren- dered against them and sureties. Also for penalty of one hundred dol- lars. Trustee failing in his dutj' liable for the money as if he had col- Section lected it, and a penalty of one hun- dred dollars. 6. To settle -with sheriff for claims as numbered. 7. Pay allowed county trustee. 8. To settle with courts annually. 9. Further penalty of ten dollars on trus- tees for neglect of duty. 10. Office of county trustee may be abol- ished. Duties then devolved on sher- iff. May be revived, ioiies quoties. 1. The justices of the several county courts, a majority County trus- being present, shall, during the sitting of their respective ^"p' "ppoi"ted. courts to be held next after the first day of January, in every s. i.' ' ' ' year, appoint, by vote of a majority, some person to act as trustee for the county for one year, for the purposes herein mentioned : and the appointment shall be entered on the records of the court. 2. In case of the death, disqualification, neglect, or refusal V.acancies to be to act, of any trustee appointed in any mode prescribed by 29 ''s'.T^' ^■°' this chapter, the justices may appoint another to fill the va- cancy until the next annual appointment, under the rules and regulations before prescribed. 3. The person appointed trustee shall give bond with good To give bond security for the faithful discharge of his duty, in such sum as "'iS.'s^c.lg'^' the court may think sufficient to cover all moneys which may s- 3. be paid to him for the use of the county; and he shall take the oaths of public oflicers, and also an oath of oflice. 4. The county trustee shall demand, sue for, and receive To collect all from the sheriff of the county, and from all otlier persons, all I?;™ m'-r.*° money which may be in their hands due and payable to and c. 2ii,"s. i. 144 COUNTY TRUSTEE. [ChAP. 29. for the use of the county, and shall apply them as the county court may direct. To call on 5. The county trustee shall annually call on the sheriff, SQ Its, Clerks, 1, ■, '' iii /.i r* y . andothershav- Clerk and master, and clerks ot the courts of his county, and mone°""tbr ^^^ Other persons bound to account with him, for payment of pay"!^™!.*"^ all moneys which may be in their hands ; and if any of said summa'?'^\(ic- °®'^^'^'® ^'^^^^ f^i^ to account for and pay the same, the trustee, ment rendered at the first court held for his county after the first day of Janu- andsuretier ^^'^ ^" every year, shall move for judgment against such Also for peiiai- delinquent officer and his sureties, ten days notice having been tyof^ioo. jjreviously given to them; and the court shall thereupon enter judgment and award execution against such officer and his sureties, for the full amount of the public money due from such delinquent officer; and every sheriff, clerk and master, and clerk aforesaid, against whom judgment is so rendered, over and above all arrearages, shall forfeit and pay the sum of one hundred dollars, to be recovered at the same time, for the use hi™is''dut'^''iia° °^ *^'^^ county. And if any trustee shall fail to comply with We for the^' ''' his duties as prescribed in this section, he shall be held liable, had coiirotld'"^ "°* only for all the moneys which such delinquent officer ought it, and a penal- to have accounted for and paid on demand, and which by due tv of §100.— R. diligence might have been collected, but shall moreover forfeit ' ■ ■ and pay a penalty of one hundred dollars, to be recovered at the same time, for the use of the county. To settle with 6. The trustee shall settle with the sheriff or collector of claims as num- public taxes, only according as claims are numbered, begin- bered.— R. S. ning with the lowest number ; and where there is no trustee, '" ' ■ ■ the court shall settle with their sheriff, or collector of public taxes, in like manner. Pay allowed CO. 7. The court of pleas and quarter-sessions shall allow the c!^wTs^- trustee of the county reasonable pay for all such services, as have not specific fees annexed to them. To settle with 8. At the first court in each county which shall be held after cour^annua- the first of June, in every year, the trustee shall make settle- 29, s. 9. ment with the court, in which he shall fender an account of his. receipts and expenditures, under the penalty of four hun- dred dollars, to be recovered in the name of the State, for the use of the county, f "of siom""' ^' ^^ ^"y trustee shall neglect to do and perform any one of trustees for ne- the several duties herein enjoined, for breach of which no l''^S.'c.'^29"s^ i7 P^'^i^lty is specially given, he shall forfeit and pay for every ' such breach of duty ten dollars, to be recovered in the name of the State, for the use of the county. trultee''may be ^^' Whenever a majority of the justices of the peace of any abolished. county shall deem it advisable, they may abolish the office of county ti-ustee ; provided notice thereof may liave been given by advertisement in ])nrsuance of an order of the county court, Duties then made at the preceding term. It shall then be the duty of the sSff.°'^°° sheriff to act as county trustee, and he shall perform all the duties of the oHice, in the same manner and under tiie same penalties as are provided in regard to county trustees, and Chap. 30.] court house, prisons, etc. I45 shall receive a like compensation: Provided, however, that the Duties then de- office of county trustee may be revived by the vote of a ma- ^'^'""1 °" sh'ff. jority of all the justices of the county, whenever and as often ^ved^l'J^ as the same may have been abolished; and such revival of the «"<""«•—«• S. office, as well as the abolishment thereof, shall be recorded. 1862%'; V"~ Sect. 3. i Ire. 140. Sect. i. 9 Ire. 496. CHAPTER 30. COURT HOUSES, PRISONS, ETC. Section 5. Vacancies filled. 6. Treasurer to settle his accounts an- nually. On failure to settle or pay, judgment on motion against hira and sureties, and for a penalty of one hundred dollars. 7. Treasurer recommending what to be done. repairs. Section 1. Court house, jail, pillory and stocks to be built and kept in repair by county court, who shall lay a tax therefor. 2. Jails to have four separate apartments. 3. Visited at each court by grand-jury. 4. Treasurer of public buildings appoint- ed by county court. His duty and bond. Compensation. 1. There shall be kept and maintained in good and suffi- Courthouses, cient repair, in every county in the State, a court house, com- J'"'"- P'"°'"y moil jail, pillory and stocks, at the expense of the county, be bun? and wherein the same are situated ; and the courts of the several '^''P' ™ ™P'"'" counties respectively, a majority of the justices being present, ^w,o sLaiUay a shall lay and collect taxes, from year to year as long as may tf^ therefor.— be necessary, for the purpose of building, repairing, and f^^.. ^- ^- <=• ^O- s- 1- nishing their several court houses, jails, pillories and stocks, in such manner as they shall think proper; and from time to time shall order and establish such rules and regulations for the preservation of the court houses, and for the government and management of the prisons, as may be conducive to the inter- ests of the public, and the security and comfort of the persons confined. 2. The common jails of the several counties shall be pro- Jails to have vided with at least four separate comfortable apartments, one apartmrnte- for the confinement of white male criminals, one for white E- S. c. so, s. 2. female criminals, one for debtors, and one other for neo-roes. 3. The grand-jury, at every court held for their county, shall Visited at each visit the jail, examine the same, and especially the apartments ?™rt_by g™nd- in which prisoners shall be confined ; and they shall report to io/I'. 3 the court the condition of the jail and of the prisoners con- fined therein, and also the manner in which the jailor has dis- charged his duties. 13 146 COURT HOUSE, PRISONS, ETC. [ChAP. 30. Treiis'i- of pub. 4. The several county courts, a majority of the justices point'ed\')''co. being present, may in their discretion, annually, at the first court. court which shall be held after the first day of January in every boiiii. year, apponit a suitable person to act as treasurer of pubuc buildings, who, after having given bond with satisfactory se- curity payable to the State of North Carolina, in such sum as may be required, for the faithful discharge of the trust reposed in him, shall superintend the public buildings, and from time to time report their state and condition ; shall recommend alterations, repairs, or improvements, together with the sums requisite for making them ; shall call to account, by suit if necessary, and settle with, all former commissioners who may have received county moneys for such purposes ; shall hear the complaints of persons confined, respecting their diet and treat- ment; shall examine into the conduct and character of the jailor, and make information thereof to the court or grand-jury of the county, as circumstances may require; shall apply for and obtain from the clerk all papers and documents, properly attested, which may be necessary for the collection of the taxes laid by the court; shall see that the same be collected, ac- counted for, and applied, according to the intent of this chap- R°S?c.°3of°'4. *^'"- -^"^ ^^^^^' ^^^'^ '"'^ °^'^'^ during one year ; and, as a com- pensation for his services, shall be entitled to such sum as the court may allow him. Vacancies fill- 5_ Whenever the office of treasurer of public buildings shall 30,'s. s'. ' become vacant, in any way whatever, the county court, a ma- jority of the justices being present, may fill the same, until the annual term of appointment. Trcas'r to set- 6. Treasurers of public buildings are hereby expressly re- aniiuluy?°"° quircd, at the term of their election, and before the election, to On failure to settle their accounts with the court, by exhibiting a fair ac- .)udg^t''on''mi- count of their receipts and expenditures, setting fortli the mon- tion against eys received, and at what time ; the sums exiiended, to whom liim and sure- • i r i , i j i i ;• i , , . , . ties, and for a paid, lor What u.se and at what time; a complete transcript of y^'il'ityof^ioo- which account shall be posted up in the court house for public '- 'inspection: And if any treasurer of public buildings shall fail to settle, as above directed, or to pay the balance which may appear to be due from him on such settlement, his successor, on giving him and his sureties ten days previous notice, shall, on motion in any court of his county, be entitled to have judgment entered against him and his sureties for all moneys received by him, witli interest from the day of receiving the same, and the further sum, as a penalty, of one hundred dol- lars, for the use of the county. incmUngK-"'" .''• ^^*'e" ^^e treasurer, in his report, shall recommend alter- uair,s what to atioiis, repairs, and improvements, the court, being satisfied of J,"'3p"f T'''- ^" their utility, may appoint one or more commissioners, in con- junction witii the treasurer, to contract for carrying t lie same into ed'ect ; but, such contract being concluded, the powers of the commissioners shall cease ; and the moneys payable there- Chap. 31.] courts, county and superior. on shall be advanced by the treasurer, who shall be solely re- sponsible and accountable to the court for the sufficiency of the work, and the disbursement of the money. Sect. 1. 4 Huwks, 194. 147 CHAPTER 31. COURTS, COUNTY AND SUPERIOR. Section County Courts. 1. Justices of the peace, judges of courts of pleas and quarter-sessions. At TV-hat time courts to be held in the several counties. 2. Court may sit six days; unfinished business continued. 3. One justice may adjourn court from (lay to day, for three days, &c. 4. Court nor process discontinued by failure to sit, or by change of time of term. 5. Three justices to hold court. .Juris- diction of. 6. iMay appoint a chairman; also a spe- cial court, &o. Their pay. 7. Court may purchase law-books. Pen- alty on clerk for abusing them. Superior Courts. 8. A superior court established in each county. 9. The St.ate divided into seven judicial circuits. Counties composing, and times of holding courts in, first cir- cuit. 10. In second circuit. 11. In third circuit. 12. In fourth circuit. 13. In fifth circuit. Anson may continue two weeks in the fall. New Hano- ver may continue two weeks. 14. In sixth circuit. 15. In seventh circuit. 16. Superior court may continue longer than a week in capital eases. 17. Held by judges. Their powers and jurisdiction. 18. Judges appointed from State at large, but to reside in a particular circuit. Shall take oaths. 19. Oaths subscribed and returned to scc- Sectiom retary of State. Penalty for acting without taking oaths. 20. Judges to ride according to present arrangement of circuits. Ridings to be published. May exchange courts. 21. Judge not attending first d.ay of term, sheriff to adjourn daily till third day. Recognizances, &c., to stand continued till next term. 22. Special term of superior court ap- pointed by presiding judge. Gov- ernor to be notified, and .appoint a judge. Clerk to publish the same. Court ra.ay continue till a trial begun is finished. P.ay of judge, holding term two weeks. 23. Judges of special terms to have the powers of other judges. No process, except subpoenas, returnable thereto. 24. All persons bound to attend, as at regular terms. Jury. 25. Jury list to be made from taxable freeholders, only of persons well qualified. To continue for, and be examined at the end of every two years, 26. Jury list kept in boxes; number to be drawn for superior courts ; how drawn. For county courts, and how drawn. Persons having suits in court not to be dr.awn; nor justices for the county courts. Jurors for special terms, how provided. 27. County court failing to draw jurors, sherifi; clerk, and three justices may draw them. 2S. Jury, at two terms of county court, may be dispensed with. 29. Jurors to be summoned, an tending court. . Subpoenas to attend commissioners and others, in certain cases issued by clerk. . Witnesses refusing to depose in court, to be imprisoned. . During attendance exempt from ser- vice of civil process. . Fees of witness for attendance at court. . After removal of a cause, subpoenas and commission may issue from either court. Witness to prove his attendance at each court. May recover pay for his attendance. On final judgment, tickets to be filed with clerk and taxed with costs. Party cast to pay but for two wit- nesses to the same fact. 75. Party recovering judgment shall re- cover costs, unless otherwise pro- vided. 76. Costs of petitions paid as court may decree. 77. Defendant may. In certain cases, plead 13* 150 COURTS, COUNTY AND SUPERIOR. [ChAP. 31. Section set-ofiF, or give it in evidence under general issue upon notice, &c. 78. In suits for slander and assault, if damages be under four dollars, costs to be tbe same. 79. In trespass q. c.f., defendant may dis- claim and plead tender, &o. in bar. 80. In trespass, &c. against several, all acquitted shall recover full costs, unless the judge certifies, &c. 81. When a subpcena duces tecum may is- sue. 82. Court may order parties to produce books or papers. Plaintiff failing, to be nonsuited. Defendant failing, judgment against him. 83. Indorsee may sue maker and in- dorser, jointly or severally. And their executors and administrators. 84. On joint obligations, &c. one or more may be sued. 85. Joint obligations shall sur\'ive against executors, tfcc. 86. Judgment, how entei'ed against execu- tors, &c. and sunuving obligors. 87. Several actions on same joint contract to be consolidated. One attorney's fee only taxed. 88. Judgment bonds void as to power to enter judgment. 69. Executions from county courts may . issue to any county. 90. Interest on contracts, except penal bonds, and on all judgments. Jury to distinguish principal from interest. 91. Ascertained in judgments final by de- fault, by dork. 92. Petitions filed in vacation. Capias to issue upon affidavit of amount of demand. 93. Publication to be made for non-resi- dent defendants in cases of petition. Decree pro confesso against non-resi- dent to bind as in equity. 94. Court may order the clerk to audit and settle accounts. 95. Depositions in cases of petition. 96. Fees of clerk same as in equity. 97. Infants m.ay sue by next friend. 98. Bill of exceptions tendered by either party. Judge to sign and seal it. 99. Actions of account allowed against executors and administrators of guardians, £cc. 100. If defendant in a penal suit plead former judgment, plaintiff may re- ply fraud. Release of the action void. Defendant pleading falsely, indictable. Section 101. Payment or satisfaction maybe plead- ed in suits on bond and judgment. Also payment or satisfaction after the day of paying, in suits on bonds conditioned to bo discharged by a less sum. 102. In suits on penal bonds the sum due, interest, and costs being brought into court, shall discharge penalty. 103. Judgments of court to stand till re- versed. 104. Upon appeal or recordari of defendant from justice's judgment, court may compel plaintiff to secure costs. 105. Appeals from a justice to be tried first term of court. Judgment against party cast and his sureties. How to obtain judgment in case of default. 106. If plaintiff appeal and shall not recover a greater sum, he shall not recover costs. 107. Appeals from county to superior court, how tried. IDS. Leap-year day, how counted. 109. Execution not to issue on judgment after a year and a day, unless re- vived. 110. Xonsuit not allowed after verdict. 111. Pai-ty in execution not to be dis- charged on habeas corpus. 112. Death of a party between verdict and judgment, not to be error, if, &c. 113. Administrator de bonis mm may have execution on judgment got by former administrator. 114. Accounts may be taken in certain ac- tions against executors, administra- tors, guardians, sheriffs, and other officers. To be stated as in equity. Pay to commissioners. 115. Causes in superior courts may be removed on affidavit, to adjoining county : Who, in case of slaves, to make affidavit. Reasons for re- moval to be set forth. 116. Removed twice only. On second moval reasons to be stated in detul. 117. Parties by consent may remove suits to convenient county. 118. On removal, transcript, depositions, &c. to be sent. 119. Surveys may be ordered in cases of disputed boundary. How and by whom made. Charges for surveys to be taxed as costs. 120. Seal of court not put to process, when. 121. Notices in legal proceedings to be served by sheriff. How served. Re* turn evidence of service. Whenex*- Chap. 31.] courts, counts and superior. 151 Section cuted to be returned to party. When sheriff interested, coroner to serve and return them. 122. Penalty on officer for failing to serve notices or making false return. 123. Return of sheriff on scire facias evi- dence of service. 124. Defendants may show they are sure- ties, and jury or justice to find the fact. 125. Property of principal to be first levied on and sold. Section 126. Judgment for costs against the plain- tiff and sureties, on failing in suit. 127. After judgment, defendant may pay the money to the clerk. 128. Clerk to pay it to the party entitled. 129. Speedy collection of proceeds of judi- cial sales by motion. 130. Judge, how to deliver his charge to the jury. 131. Quakers may wear hats in court. r.lpi"/™^^"'*'"'!' °^ ^^■'' P^^"^^ '''^'^ be judges of the courts of Justices of the pleas and quarter-sessions of the several counties, for which f^'™ '" "" they are appointed and have all the powers incident to such i^t^^lTaT" a junsdiction. baid courts of pleas and quarter-sessions, shall <)."""=r-'^«- be^heW for their respective counties on the days following' to '"'" ^^7ulT^U.'^'l^'"\^^''''t7r''^''' ^°"^''^ Monday in Feb- At what time luary, May, August, and November. courts to be cemher' ^''^ ^^"'^"^ '" ^'^^''''' ■^""^' ^^Ptember, and De- "^^Z^^ cemoer. E. s.c.3i,s. i. Anson second Monday in January, April, July, and October vember '^ ^^ '" ^''''""^' ^^"^' ^"^"^^' ^"^ No- Beaufort third Monday in March and September, and on the first Monday m June and December 'vember°"'^ Monday in February, May, August, and No- Bladen, first Monday in February, May, August, and Novem- ^™em1er' ^''^ ^°"'^''^ "' ^'^''''^' "^^"^' September, and De- Buncombe, second Monday after fourth Monday in March June, September, and December Jviarcn, Burke, eighth Monday after fourth Monday in March June September, and December. ^ ' ' Cabarrus, third Monday in January, Aoril Tnlv nn.l n.f i. Caldwell, sixth Monda'y after fourfh Xndai'fn Marc^Jmi;- September, and December. cii^", June, ^"'cetber.''""'^ '^^""'^"^ "' ^^^''^' "^""'' S^Ptember, and De- ^'vember.'''''^ ^""'^"^ "' ^'^'""^'y' ^""^^ ^"g"^*' «"d No- Caswell first Monday after fourth Monday in March, June September, and December. ' ' Catawba third Monday in January and July, and second Mon- day alter fourth Monday in March and Septeml"r yember!""'^ ^°"^"^"^ ^'^'^■^"^^■^' ^f^^' August, and No- Cherokee, first Monday in March and September, and first Monday in December and June. ' 152 COURTS, COUNTY AND SUPERIOR. [ChaP. 31. Chowan, first Monday in February, May, August, and No- vember. Cleavland, eles-enth INIonday after the fourth Monday in March, June, September, and December. Columbus, second Monday in February, May, August, and November. Craven, second Monday in March, June, September, and De- cember. Cumberland, first Monday in March, June, September, and December. Currituck, the last Monday in February, May, August, and November. Davidson, second jNIonday in February, May, August, and No- vember. Davie, fourth Monday in February, May, August, and No- vember. Duplin, third Monday in January, April, July, and October. Edgcombe, fourth Monday in February, May, August, and November. Forsyth, third Monday in March, June, September, and De- cember. Franklin, second Monday in March, June, September, and December. Gaston, third Monday in February and August, and fourth Monday after the fourth Monday in March and September. Gates, third Monday in February, May, August, and No- vember. Granville, first Monday in February, May, August, and No- vember. Greene, second Monday in February, May, August, and November. Guilford, third Monday in February, May, August, and No- vember. Halifax, third Monday in February, May, August, and No- vember. Harnett, second Monday in March, June, September, and December. Haywood, fourth Monday in March, June, September, and December. Henderson, first Monday after the fourth Monday in March, June, September, and December. Hertford, fourth Monday in February, May, August, and November. Hyde, second Monday in February, May, August, and No- vember. Iredell, third Monday in February, May, August, and November. Jackson, third Monday in March, June, September, and De- cember. Johnston, fourth Monday in February, May, August, and No- vember. Jones, fifth Monday after fourtti Monday in ISIarch and Sep- tember, and on last Monday in January and July. CnAP. 31.] COURTS, COUNTY AND SUPERIOR. 153 Lenoir, first Monday in January and July, and third Monday in March and September. Lincoln, third Monday after fourth Monday in March and September, and second Monday in January and July Macon, second Monday in March, June, September, and De- cember. Madison, third Monday after fourth Monday in March, June,* September, and December. Martin, second Monday in January, April, July, and October. McDowell, iifth Monday after fourth Monday in March, June, September, and December. Mecjvlenburg, fourth Monday in January, April, July, and October. ^ i j^ Montgomery, first Monday in January, April, July, and Oc- tober. ^ r Jl Moore, fourth Monday in January, April, July, and October. Nash, second Monday in February, May, August, and No- vember. New Haiiover, second Monday in March, June, September, and December. Northampton, fii-st Monday in March, June, September, and December. Onslow, first Monday in March, June, September, and De- cember. Orange fourth Monday in February, May, August, and No- vember. Pasquotank, first Monday in March, June, September, and De- cember. Perquimons, second Monday in February, May, August, and November. Person, thu-d Monday in March, June, September, and De- cember. Pitt, first Monday in February, May, August, and November. Polk, te^ith Monday after fourth Monday in March, June, Sep- tember, and December. ^ Randolph, first Monday in February, May, August, and No- vember. Richmond, third Monday in January, April, July, and October. Rowan, first Monday in February, May, August, and Novem- Robeson, fourth Monday in February, May, August, and No- vember. ° Rockingham, fourth Monday in February, May, August, and JNovember. Rutlierford, ninth Monday after fourth Monday in March, June beptember, and December. ' Sampson, third Monday in February, May, August, and No- vember. Stanly, second Monday in February, May, August, and No- vember. & ' Stokes, second Monday in March, June, September, and De- cember. ' ' 154 COURTS, COUNTY ^VND SUPERIOR. [ChAP. 31 Surry, second Monday in February, May, August, and No vember. Tyrrell, fourth Monday in January, April, July, and October, Union, first " " " " " " " Wake, third Monday in February, May, August, and Novem ber. Warren, fourth IMonday in February, May, August, and No vember. Washington, third Monday in February, May, August, and November. Watauga, third Monday in February, May, August, and No- vember. Wayne, third Monday in February, May, August, and No- vember. Wilkes, first Monday after fourth Monday in January, April, July, and October. Wilson, fourth Monday in January, April, Jul}'^, and October. Yadkin, first " " " " " " " Yancey, fourth Monday after fourth Monday in March, June, September, and December. Court may sit 2. If the business of any of the said courts cannot be de- finishedtusU termined on the first day of the term, the justices may adjourn ness continued, from day to day, not exceeding six days, at the end of which — R. S. c. 31, time the causes and matters which may be depending before them and not then finally determined, shall be continued to the next succeeding term. One justice 3. If, by reason of bad weather, or other cause, a sufi[icient may adjourn number of justices shall not meet for holding their court on court daily for ■> . . . i-^i j.r tiiree days, &c. the day apponrted, any one justice may adjourn the court irom — R. S. c. 31, jjj^y to day, not exceeding three days, until a sufficient number of justices can attend to hold the court. Court nor pro- 4. None of the county courts, nor any process in any of c^ssdiscon- them dependina;, shall be discontinued by reason of the jus- tinued by fail- . . . ,'. ? , , . , , • j i c nretosit,orby tices falling to hold court upon the day appointed, or ot any ^{J^^l^ ^j^'™ alteration of the days appointed for holding it; but in every c. 31, s'.i. ' such case all process, matters, and things depending shall stand continued, and all appearances upon returns of process shall be made, to the next succeeding term in course, in the same manner as if such succeeding term had been the term to which such process had stood continued, or such returns or appear- ances had been made ; and all recognizances, bonds, and obli- gations for appearances, and all returns, shall be of the same force and validity, for the appearance of any person at such succeeding term, and all summonses for witnesses as eflectual, as if the next succeeding term had been expressly mentioned therein. Throe justices 5. The justices of thc county courts, or any three of them, ;., l.oid court, ghall be competent to hold thc terms thereof, and shall take riieir junsdic- . ',. i , ^ n i n 'j i • • i tioii.— 'R. S. c. cognizance of, and have full power and autliority and original 3],s. 5. jurisdiction to hear, try, and determine, all causes of a civil nature whatever at the common law, within their respective Chap. 31.] courts, county ax\d superior. i r,r, counties wl.ere the original jurisdiction is not by statute confined to one or more magistrates out of court/or to he supreme or superior courts; of all penalties to the ;mount of one Imndred dollars and upwards i„cu,Ted by violal^oiiT tl°J penal statutes of the State, or of laws passed by the Co,tre s of the United States, where, by such law, juriscfict on is S to the courts of the several States; of suits for dower nar tat's'est': P°^-^-f 'Jfg-i-' -^d distributive shares If in' L" ates estaes, and all other matters relating thereto- to trJ hear and determine all matters relating to omhan idio s and lunatics and the management of their^states, in HI e mam er as courts of equity exercise jurisdiction in such ca es to n ho=e on y whereof the origh.al jorisdiction i, g v," '„XSf Je,^ipx;aTr^:S"-:;r:f-3-ssr cretion, at the first term which may happp,, afte; the fir.t clav powr:5ttS/^\sfS-;'l-t'l^^ »• -Ine btate shall be div ded into «n,.or, ;, r • , 7 -^ .'^'' K.s.c. 3i,s. £ as hereinafter snp..;fi,.ri i .u ^" judicial circuits, The State ' °^ March "^"alrdX'mber. ''°"^'^^ ^^^"^ *'- ^-"'th Monday of March 12. The fourth judicial circuit shall be composed of the r.„Hi • ■. folowmg counties, and the courts thereof shall be hekl at he -«■ ' • o''^" : following times, to wit : lo, u. Granville, first Monday of March and September. Urange, second " « ^ « Chatham, third " u « Randolph, fourth, " « << ''tS'e.'S.b'?"'^^ ^'^^^- ^'^^ ^°^^*-^'^ M--'^>^ °^ March ''"Id's^Ztf "'^^^'^^' ''' ^°"^"^ Monday of March ^'tepteSef °"'''^ "^''' "^' ^""'"^'^ Monday of March and ''IKeptemier''""''^^ ^"" "^^ '°"^^^ Monday of March ^°tnSle7t;m'be'r.''°"'^^ ""'''' ^'^^ ^°"^^^ Monday of March ^'Xptembe'; ^°"^'^ '''" *' ^""^'"^ Monday of March and ''"rd iX'bef "'^^^'^^^ ''' '^^''"^ Monday of March ^'Td"SVtIber.''°"''^ ^'^^^ ^'" ^°"^*'^ Monday of March loiL^ouSV""^'?!"'""^* '^^" ^*^ composed of the fol- Fifth chcuit. So^ln^Ws^to'^-t!'!^""^*^ *'^^^°^ ^'-^^ ^« h^l^ ^tthe '^^an'd'Aulust. ^^""^'^ ''^"' '^' '^^^* Monday of February Sta'nlf fi ,?7'J''*, ^^°"^.^ °^ ^^'^™^^y ^"d August. Manly, hrst Monday of March and September. fallterTo?A,r''^ °'-'''"' "^'^ September; and the A.son ... tail term of Anson superior court shaU continue two weeks '""'r"^ '-» successively, whenever the business of the court slXe!""'^ '" '"'• ^'leTXi-:' ""'"^ ^'^°"^'^ °^ ^'''''' ""^^ *'"'-d Monday of Sep- """Sj'l'mS^f ^'°"''^ °' ^^^'^'^ ^"^ f--*'^ Monday of Bladen, first Monday after fourth Monday of March, and fost Monday after fourth Monday of September. ' Columbus, second Monday after fourth Monday of March and second Monday after fourth Monday of Senten ber t'hTTS 'Y Monday after fourth Monday of llach and thnxl Monday after fourth Monday of September IndZS mT^ Monday after tLrth ionday of March, Xe. i.no.. and touith Monday alter fourth Monday of September ; '"^'■^- ^°""""° % 158 COURTS, COUNTY AND SUPERIOR. [ChaP. 31. two weeks.— E. and shall continue two weeks successively, should the busi- r —1852^ c"' "^^^ requu-e it. 3$. ' ' Sampson, skth Monday after fourth Monday of March, and sixth Monday after fourth Monday of September. Cumberland, seventh Monday after fourth Monday of March, and seventh Monday after fourth Monday of September. Sixth eii-cuit.— 14. The sixth judicial circuit shall be composed of the fol- E. s. c. 31, s. lowing counties, and the courts thereof shall be held at the ' ' following times, to wit : — Surry, fourth Monday of February and August. Yadkin, first Monday after fourth Monday of February and August. Ashe, second Monday after fourth Monday of February and August. Wilkes, third Monday after fourth Monday of February and August. Alexander, fourth Monday after fourth Monday of February and August. Davie, fifth Monday after fourth Monday of February and August. Iredell, sixth Monday after fourth Monday of February and August. Catawba, seventh Monday after fourth Monday of February and August. Lincoln, eighth Monday after fourth Monday of February and August. Gaston, ninth Monday after fourth Monday of February and August. Union, tenth Monday after fourth Monday of February and August. Mecklenburg, eleventh Monday after fourth Monday of Feb- ruary and August. Cabarrus, twelfth Monday after fourth Monday of February and August. Rowan, thirteenth Monday after fourth Monday of February and Augi-ist. Seventh cir- 15. The seventh judicial circuit shall be composed of the 3i,''srio, w?- following counties, and the courts thereof shall be held at the 1852, c. 44. following times, to wit : — Cherokee, on the first Monday of March and September. Macon, second " " " Jackson, third " " " Haywood, fourth " " " Henderson, first Monday after fourth Monday of March and Sc])tember. Buncombe, second Monday after fourth Monday of March and September. Madison, third Monday after fourth Monday of March and September. Yaney, fourth Monday after fourth Monday of March and September. Chap. 31.] courts, county and superior. I59 McDowell, fifth Monday after fourth Monday of March and beptember. Caldwell, sixth Monday after fourth Monday of March and beptember. Watauga, seventh Monday after fourth Monday of March and September. Burke, eighth Monday after fourth Monday of March and beptember. Rutherford, ninth Monday after fourth Monday of March and beptember. Polk, tenth Monday after fourth Monday of March and Sep- tember. ^ Cleavland, eleventh Monday after fourth Monday of March and beptember. 16. When the trial of a capital case shall have been com- Superior court menced, and the time of term herein before fixed for the court ™"y«™ti™e shall expire before the jury shall have rendered their verdict -I'irrca;,-- thercin, the court ftiay be continued, by adjournment, from f'r"7,''- ^'• day to day afterwards, for the purpose of finishing the trial ' of thekw"^ '''""'^'''^' ''"'^ '■*^"^'^""S thereon the judgment ahnL T^'' '""l^ ''"T!' '^''i^ ■''^ ^'^'^ ^y J^'^g^^' being men of Held by judg- abihty, mtegnty, and learned in the law, who shall have cogni- ^?,- • ^ance and legal jurisdiction, unless otherwise provided, of'all an'd'K^- pleas, real, personal, and mixed, and also all suits and demands '^-o^- ^- '■ relative to dower, partition, legacies, filial portions, and estates ' " '"• of intestates; and, unless it be otherwise provided, of all pleas of the State and criminal matters of what nature, dec^ree or denomination soever, whether brought before them bv oricri'nal or mesne process, or by certiorari, writ of error, appeal from any inferior court, or by any other way or means whatsoever: and they are hereby declared to have full power and authority to give judgment and to award execution and all necessary . process thereon, and shall have, use, exercise, and enjoy the same powers and authorities, rights and privileges, as were had, used, exercised, and enjoyed by any former judges of the superior courts in this State, except where it is o" may be otherwise directed. •^ bnfsh.ri' •'"''°'' f'!fl'^' ''''''*''^ ^'""'^ ^^"^ State at large. Judges np- but shall be appointed for some one judicial circuit, in which P°'"'<''' f'™^ lZZ:rf% '""^ "° '''''^' '''''''''' ^-1 the j^Klge thus.^S'ro^eltd?i„ appointed shall reside in some one of the counties of the cir ^ P^'-'iouiar hold ^^r'ffi'^ '" 'i'" ''^" ^^" ^'^°^'^"' ^° l°"g -^ he may Sl:..e holdt eothce; and every judge before he shall act as such, "fV-it/s' t e in °P7^fO"'-t'°>- before the governor, or before one of c.\;;'-^*^^'' the judges of the supreme or superior courts, or before some justice of the peace, take the oath appointed for public oifi- cers, and also an oath of office. ' ifv^^t.J'''' ""^^'Z' °' ""T'^' ''*'^°'''' ''^hom said judge shall qual- o.,h. ..b- ily, shall cause the judge to subscribe the oaths by him taken, -'"bojUnd re- and having certified the same, shall return said oaths to the "suue" "'''•' 160 COURTS, COUNTY AND SUPERIOR. [ClIAP. 31. secretary of State, who shall carefully preserve them ; and if Penalty for act- any judge shall act in his otfice, before he shall have taken the in?: without oaths directed, lie shall forfeit and pay two thousand dollars, R.'s"! sifsfil one half to the use of the State, and the other half to the per- son who shall sue for the same. Judges to ride 20. The judges of the sitperior courts, shall ride the circuits according to guccesslvelv, commencing at the first circuit according to the present ar- -j ' . . ^ , i • i i i n rangenient of arrangement now existing between the judges, and shall cause R'(]"''^'to be ^ notification of the ridings to be published in some newspa- publislied. per by the first of February, and the first of August, preceding each circuit : Provided, that no judge shall ride the same eir- May exchange cuit tvvice ill succession, but the judges may exchange with ''°3i'^'~23 ^4 6^ch other for any courts in their circuits ; and whenever a ' ' '" judge shall die or resign, his successor shall ride the circuits thus allotted to his predecessor. Judge not at- 21. If the judge shall not attend and hold the courts on the dav'of'te'i-m' '^''^J prescribed, tlie sherifi' of the county or his deputy shall sheriff to ad- open and adjourn the court from day to day, until the judge 'tWrdl dly!^ "" ^''^'^ attend and hold the same, or until the tliird day appointed for the holding thereof, on which day the sherifi' or his deputy shall adjourn the same until the next court, to which time all actions, pleas, process, and other matters pending in the said court, shall be continued and have day, as if the court had Rccognizanc^es, been duly held. And all recognizances, bonds, and obligations continued till for appearance, and all returns shall be of the same force and next term.— R. validity for the appearance of any person at such succeeding O. c. 31, s. 2o. Ill f . '' ^ Q- 1 . c P term, and all summonses tor witnesses as enectual, as it such succeeding term had been expressly mentioned. Special tenn of 22. Whenever the civil business of the superior court of any appo'inted'by' county shall become too great to be done at the regular term judge, when, thereof, the judge presiding may, and he is required to appoint a special term of said court, to be held for one or two weeks at his discretion, at some specified time before the term next Governor noti- ensuing. He shall notify the governor thereof, who shall fTudge?'"""' appoint one of the judges of the superior courts, other than the presiding judge aforesaid, to hold said special court, and the Hsh'^'^t'— ''I'sM ^^^'"'^ °^ ^''"^ court shall duly publish the same : and the court c. 10, s. 1, 2, o! shall be held for the time appointed, unless the business be 1848, c. 2!i. sooner finished. Provided, that whenever, at such special term, tinue tiiiii trial til e trial of a cause shall have been commenced, and the term begun, is fin- appointed shall expire before the trial shall be finished and the jury shall have rendered their verdict therein, the court may be continued by adjournment from day to day afterwards, for the purpose of finishing the trial and receiving the verdict, and rendering thereon the judgment of the law. And a judge Pay of judge, holding a special term of two weeks, shall also receive ninety doliars for the second week, to be paid as provided in the clicpt'T entilled " Salaries and Fees." Judge.Hofspc- ij^ 'p|||, ,„(]g(. Iiolding a special term is empowered to iiear, cial terms to > , . n ^ -i , i • -i have the pow- try, and diMennine all civil causes, both at law and in equity, fudges"""^'^ and to do all things appertaining thereto, and to have, use, and Chap. 31.] courts, county and superior. • 261 enjoy all the rights and privileges of a judge holding a regular Xo p.o.c, ex- teim, in the same manner and to as full extent, as if the same ^-^i^' subpoenas were a regular term of the court : But no process shall be made Z^o%u reurnable there o except subpoenas, or other process for the - ^M- 2.-"' attendance of witnesses. 1^". '^- 29- 24. All persons, as well witnesses summoned in the civil All persons causes of said court to the regular or special term, as officers ttT^T or others who may be bound to attend the next regular term X'^^f^ 01 the court, except in criminal cases, shall attend the special ''"' '^^ "' ^- 2- term, under the same rules, forfeitures, and penalties, and with the same privileges as if the term were a regnlar term. term'wirl TTi\ °^J'!^''' /"'' quarter-sessions, at the first Jury list to be term which shall be held after the first day of January next "JldVomtax- thiZZ-VrVr ':i'' *T ^^^^^ ^^^-^f^"-- ^hal/causeS^S^t^e;.- their clerk to lay before them the tax returns of the precediiK. T'. ^''"^i"^'" year for their county, from which they shall select t'he „.:^er''"'- of such persons only as are freeholders, and as are well qual- hv th? '^ I f J"^"'''' ^ ^'-'^ °^ ^''^''^ "^"^-^^ «hall be made out sh^a nnt 'V' constitute the jury list; and if said returns shall not contain the names of all the inhabitants of their county who are freeholders, and in their opinion are well qua - ified to act as jurors, they shall cause the names of all such Sha^l r.t|"nn. f" f J"^ ^''^'- ""'^ '""'^ i'^'y !'«*' ^° "^ade up, To continue for, snail continue for two years in its operation; at the end of ^"^'"'A^^'^- Salv r'l ''%'°"1 f,'^^ "^"™^"^ '^^-^'^"y ^he jury n^^^^^tT already made out, and diligently inquire if any persons a ual y^^''--R- S. ^ed to be jurors, as above rJentlned, are^oSSd ;'and ^- "' ^•"■ whether any persons not qualified to be jurors, as above men- toned have been inserted; and if any have been omiSed, retted nH f '^'V 'l' J"-^ ^''' *« ''^ '-^d^ - ^bove dt' rected , and if any have been inserted not possessing the re- quisite qualifications, they shall strike theii- names from ttie jury list; and to obtain full information on this subject, the courts may examine on oath any person they think proper, tn K. ■!? ''^"''n "''^'^ '^^'^'^ *he names on their jury list Jury list kept to be written on small scrolls of paper of equal size, ind put 'i^^T^- , diSsi:,^-^prrv 'r ^^^f ?-•--- ^h^^ ^han l^S^o^^^.- d.visions marked No. 1 and 2, and two locks, the key of one rT'^' to be safely kept by the sherifl' of the county, ihe oth Jr by the "' "■"™- chairman of the county court, and the box by the clerk of he sitlhi "^'^1^*^^-'^ ---" "f their court, nlxt preceding tl" sitting of the superior court of the county, shall cause fo be drawn from the jury box, out of the partition marked No l' by a chad not more than ten years of age, not more than na^i^feTlSTb'^" *'-" /^irty scro'lls ; and tte' persoiTwhose atThe snf l-"''"^"^-°" ^^"1 ^^^'•olls, shall serve a^ jm-ors Ay,,V/../ tl . "1 ^'^P^^^^^o'^t to be held for the county, sha ni 1 I ■h'''"',!!"''" ^^" "°^"^*y *^°"^-t of ^"«h county court fh n V' " ?*'"'" '">■' "f ^^' ^"tting of the superior the n r !i ?>"'■* P^^^^dmg such county court shall draw tht juiy. And the court of pleas and quarter-sessions, at 14* 162 * COURTS, COUNTY AND SUPERIOR. [ClIAr. 31. For CO. courts, cach term thereof, shall in like manner draw the like nvimber and how ^f persons to serve as jurors at the next term of said court ; Peirons having and should any of the jurors drawn have a suit pending and suits in court, ^t irisue in the superior or county court; or should the name nottobedrawLi. ^ . . ^ ' , ,,•' , Norjusticesfor of any justice of the peace be drawn to serve as a juror ui the county the couuty court, the several scrolls with his or their names shall be returned into partition No. 1 of the jury box ; or if any of said persons so drawn be dead or removed out of the county, the scrolls with their names shall be destroyed ; and in all such cases other jurors shall be drawn in their stead, and the scrolls drawn to make the jury shall be put into the partition marked No. 2. Provided, that if before the expi- ration of two years the names of the jurors in the partition No. ] shall be drawn out, then all the names shall be returned into the partition, marked No. 1, and drawn out again as herein first directed. And there shall also be put into the said partition marked No. 1, at the court following the first day of January in each year, the names of such persons as shall appear, by the tax list immediately preceding, to have become qualified to serve as jurors since the making out the jury list, and whom the court shall deem fit persons to be ju- Jurors for spe- rors. And whenever there shall be a special court for the provideT-lI county, eighteen jurors shall be drawn to attend said court, S. c. 31, s. 27, by the county court next preceding the special term, in the i844,c.io,s. 3. ^^^^^^g^ and under the rules prescribed in this and the pre- ceding sections for providing jurors for the regular terms.* po- court fail- 27. If any county court shall fail to draw jurors for the rofs,°siierTir,'''^" Superior court, regular or special, or for the succeeding term ci'lt, and three ^f i\^q county court, the sheritf and the clerk of the county 'draw thCTn";— court, in the presence of, and assisted by three of the justices R.S.c.3i,s.28. pf ^j^g peace of the county, shall draw the jurors in the man- ner above prescribed, terms o'fcranty 28. Whenever it shall appear to any court of pleas and court, may be quartcr-sessious that the business thereof does not require a — T"s'!''c™'3i' jury at every term, it shall be in their power, a majority of the s. 29. 'justices being present, to pass an order dispensing with the attendance of a jury at two terms, which order shall be rescinded only by a majority of the justices. fummon^dTand ^9. The clerk of said court shall deliver the list of the jurors to attend till drawn for the county and superior courts, to the shcrifl' of the cmirt."'^^'"' ^^ county, who shall summon the persons therein naiued to attend as jurors at such courts respectively, which summons shall 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 discharged; and, that there may not be a defect of jurors, the sheriil" shall by order of court summon, from day to day, of the bystanders, other jurors, * For New Hiuiover county fifty-one jurors are to lie drawn, of whom the clerk shall desigmite thirty-six for the "first week, and fifteen for the second week, who shaU be Bummoned to attend accordingly. — 1854, c. 16, s. 1, 2. Chap. 31.] coukts, county and superior. 163 being freeholders within the county where the court is held, to Tales jurors serve on the petit jury, and on any day the court may dis- monelif-T's. charge those who have served the preceding day. c- 3i, s. so.' 30. Every person on the original venire summoned to appear Jurors not at- as a juror, who shall fail to give his attendance until duly dis- '^'."J'"" ? ".f . charged, shall forfeit and pay for the use of the county the "™^ " "*' sum of twenty dollars, to be imposed by the court: Provided, To have till that each delinquent juryman shall have until the next sue- makVe™J° ceeding term to make his excuse for his non-attendance, and, if he shall render an excuse deemed sufficient by the court, shall be discharged without costs. And every person sum- Tuies jurors not moned of the bystanders, who shall not appear and serve dur- attending, fined ing the day as a juror, shall be fined in the sum of two dollars, ul c'sfs'sT unless he can show sufficient cause to the court ; and the clerk ' ' ' ' shall forthwith issue an execution against the estate of the delinquent tales juror for such amercement and costs. 31. No sheriff or other officer shall execute any writ or other Exempt from civil process on the body of any juror, during his attendance, p';;;'^'^,';!^^' or going to, and returning from, any court of record ; all such S. c. si, s. 32. service shall be void, and the defendant on motion shall be discharged. 32. Regular ministers of the gospel of every denomination, Ministers and regular physicians or practitioners of physic and surgery, keep- n'om se^vilTi'as ers of public mills, registers, and postmasters, shall'be exempt jui-ors.-R?s. from serving as jurors. '^; ■"> '^■. ^^• oo fpi • ] c l^ ■ Orand-]ury 66. ilie judges ot the superior courts and the justices ofiiow drawn.— the county courts at the terms of their respective courts, shall K-^-c.3i,s..34. direct the names of all the 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 jm-ors for the court. 34. The clerk shall, at the beginning of the com-t, swear Petit jurors such of the petit jury as are of the original panel, to try all "™™ '" ""''^ civil cases ; and if there should not be enough of the original panel, the talesmen shall be sworn ; and in the trial of all in State cases offences, not capital, unless where the court shall otherwise how ''^'"''' direct, petit jurors of the original panel as well as talesmen shall be sworn as prescribed in the chapter entitled " Oaths." Provided, that nothing herein contained shall be construed to Right of chai- disallow the usual challenges in law to the whole jury go '«"g'^"o' affect- sworn, or to any of them ; and if by reason of such challenge, k! slTsifs.Te. any juror shall be withdrawn, his place on the jury shall be supplied by any of the original venire, or of the bystanders qualified to serve as jurors. _ 35. The clerk, before a jury shall be impanelled to try the Their names to issues in any civil suit, shall read over the names of the jury I'o called in the upon the panel in the presence and hearing of the parties or llcs'"be1o"e ^in> their counsel ; and the parties, or their counsel for them, may panelled. Kour challenge peremptorily four jurors upon the said panel, with- !enKc!rin''c'rvil out showing any cause therefor, which shall be allowed by '^■'-,«- - 1^- S. the court, '^^ ■*'■'*• ^'- 164 COURTS, COUNTY AND SUPERIOR. [Cn.VP. 31- Constable ->t- 36. When any constable (except such as are appointed to tending juries attend tlie grand-jury) shall be appointed or summoned to Itftmu'p'l^ir: attend any superior o"r county court, the clerk, at the time of -R. S. c. 31, the first f'oin"- out of a jury on the trial of any civil cause, '■ ^*' shall administer an oath to the constable faithfully to attend the several juries that may be put under his care daring that term, that shall be charged in the trial of any civil cause ; and after the constable "shall be once so sworn, he shall be considered, to all intents and purposes as acting upon the same oath, while attending every jury that he may be called to attend during that terra. rRACTICE, PLEAS, AND PROCESS. Venue of ac- 37. All real actions, actions of ejectment, trespass quarc ''""'• claiismn f regit, suits on penal statutes, and pleas of the State, shall be commenced in the court of the county wherein the cause of action shall arise, or the offence be committed, and not elsewhere ; and all actions of debt, other than on penal statute, all actions of detinue and replevin, actions of account rendered, assault and battery, and for the unlawful taking of goods, all actions upon the case, and suits for legacies, and for distributive shares of intestates' estates, shall be brought to When plaintiff the court of the county where both parties reside. And when reside, out of ^j^^ plaintiff resides beyond the limits of the State, shall be brought in the county wherein the defendant resides; and When plaintiff when the plaintift' and defendant reside in ditlcrent counties, and deft, reside jj^,^ J tl,g action is sued in the court of pleas and quarter-scs- coun" sions, it shall be commenced in the court of the county, where Deft, not to be t^g defendants, or one of them, reside. And if the action shaU co?'^m"tThis be sued in the superior court, it shall be commenced in the county for less j.(^^„ty where the plaintiff, or one of the defendants resides, at "''"®' the option of the plaintiff; Provided, lunrever, that no action for any debt or demand of less value than one hundred dol- lars, dne by contract or agreement upon any cause or account whatever, shall be brought in any superior court other than Actions "tiiCT-that of the county where the defendants, or one of them, ma^e.ufatej. reside. And when any action shall be brought otherwise than i^!^io;ri, «.'• is herein directed, the same may be abated on plea of the — 1638, c.'u. defendant. Not to be sued 38. No action shall be originally commenced in any ot the f™-7s'ti.'m said courts for any sum of less value than one hundred dollars, Siondue'by where the sum sued for is due bv bond, promissory note, or bond, &c. liquidated account signed by the party to be charged thereby ; nor for any forfeiture or penalty of less amount than one hun- Orforanvpon-dred dollars, incurred by virtue of any act of Congress or act aitvorjustice's^f ^,^g General Assembly; nor upon any judgment rendered rTiw.or" by a justice of the peace, when the principal money due there- balance on j^ij j^j the time of suit exclusive of costs is less than one hun- les"a'tno«u';: d.vd dollars; nor for any balance of less value than one nun- dred dollars, due on any bond, promissory note, or liqiudfited account signed as aforesaid ; nor for any uiili(iuidated debt or Chap. 31.] courts, county and superior. 165 demand of no gi-eater value than sixty dollars, due by con- Norforuniiqui- tract or agreement, or for goods, wares, and merchandise sold ;^fS6o''and'un' and delivered, or for work and labor done, or for specific arti- ''«•• ' cles. And if any action shall be commenced in any of the bn'uthfto'be'* said courts contrary to the provisions of this section ; or if the abated. sum sued for which may be truly due and owing, is of less value than that for which the action is hereby allowed to be commenced in said courts, the same may be abated on plea of the defendant, or, if the matter appear on the writ or declara- Or if the mat- tion, may be dismissed on motion: Provided, however, that '"^ "f P''- <''^- nothing herein contained shall extend to penal bonds or notes, 'tllT °" "'°' if the penalty therein stated be of the value of one hundred ''"""i bonds dollars. ^^c,iA<,i. 39. The clerk shall note on process the day on which the Day of issuing same shall be issued, and the sheriff or other officer receiving P^cess to be ° it for execution, shall in like manner note thereon, the day on "heriff^oln-" ' which he shall have received it, and the day of the execution- dorse day of re- and every clerk, sheriff, or other officer, neglecting so to do,' SZti "glt- shall forfeit and pay one hundred dollars. R. S.c.3i,s.43. 40. No writ or other leading process, returnable to any Security to be court of record, shall be granted or issued by the clerk or his S'^^n before deputy but under the following rules, to wit : the clerk, by Tsuirmay be himself or his deputy, before issuing the same, shall take bond dismissed. With sufficient security of the person suing, conditioned that he will prosecute such suit, and in case of failure therein, will pay to the defendant ail such costs and damages, as may be awarded against him by the court: Provided, nevertheless, that Exception as to persons may sue in forma pauperis as hereinafter provided • P«''sons suing and when any person, applying for a writ or other leading ;«,&" s"t process, shall produce to the clerk an order signed by a judo-e ^i'^- "• allowing said applicant to sue in forma pauperis, the clerk shall issue the same without requiring bond and security ; and if any writ or other leading process shall be issued without security, unless upon such order, the same shall be dismissed by the court, on motion of the defendant. 41. Where the clerk shall issue any writ or other process. Names of par- or any declaration in ejectment shall be returned into his 'i""' tbeir sure- office and security thereon given, as hereinafter directed, he baU to be dock- shall enter the same in a book to be kept for that purpose in e'"' by clerk in his office, together with the names of the plaintiff and defend- c.s^^s.Ts.^' ^" ant and places of residence, the names of the sureties to such writ, with the place where they live ; and wiien the process is returned he shall enter therein the names of the bail ; which book he shall have before the court, at all times during its ses- sion, to the end that it may be seen by the jDarties and the court, whether sufficient security is taken as required. 42. If any clerk, by himself or deputy, shall issue any writ ciks. issuing or other leading process, otherwise than as by the two preced- 1""''"' '''.'"'- ing sections directed, he shall pay to the defendant the sum of ftrfeHK two hundred dollars. R.s.c.3i,s.46. 43. Every poor person, who shall have cause of action roorpoi-sons 166 COURTS, COUNTY AKD SUPERIOE. [ClIAP. 31. mnvsuein/b)-- ao-ainst any other person in law or equity, shall have, at the mapauj,erh. jj^gg^g|io,j of ^^e judge of any court, a writ of law or in equity, according to the nocture of "his cause, paying no costs on the same nor giving any security therefor; and the court, to which Counsel to be the Writ may be returnable, shall assign to such poor persoii assigned.— R. learned counsel to attend to his case, and they shall attend S.c.3i,s.47. ^^j^i^p^^^^ fpg Qj. j-e^vard; and no costs shall be charged to such person by any officer of the court in which the suit shall be brought. u 1 • Writs in the 44. When there may be two or more defendants, the plain- same suit^may^ tift', in any suit in the superior court, and also in any suit in iountieVatThe the county court, (in case one of the defendants resides in the same time.- pointy), may issue writs directed to the sheriff of each of the ' counties, where the defendants are most likely to be found, noting on each process that they are issued in the same suit ; and when the 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 m other cases of similar process not executed. Real piaintiiT 4-5. Upon the return of any declaration in ejectment, the in ojectment to ^g^j plaintiff, his agent or attorney, at the return term, shall &' boTd'-R enter into bond payable to the clerk of the court, for the use S. c. 31, s. 49. Qf ^j^g defendant, with good and sufficient security to prose- cute the same with effect, or otherwise to pay all such costs and damages as shall be awarded on failure thereof. Deft, in eject- 45 Every person, who by leave of court, may become "u-Und^-R. defendant in an action of ejectment, shall, on doing so, by S.c.34,s.50. himself or agent, execute a bond with good and sutticiejit security, payable to the fictitious lessee, for the use of the plaintiff, to answer the action and abide by the judgment which may be rendered therein, in the same manner and on the same conditions as bail are bound ; and the obligors shall be under the same rules and regulations, and liable to the same judicial proceedings as to all costs and damages which may be awarded against the defendant, as are principal and bail in other civil actions. , „ r -i 4. Pi'tiff filing to 47 Whenever the plaintiff in ejectment shall tail to give fil'diMniltd bond for prosecuting his suit, the court shall on motion dis- DePttogive miss the same; and whenever any person may be desirous 01 Stt pTend. becoming defendant in a suit in ejectment, he ^^flfJll'^'^}^ -R. S. c. 31, as before directed, or surrender himself in custody ot tlie '■ ^^- sheriff, before he shall be permitted to plead. If piiiintiiTin 48. If the lessors of the plaintiff, or any one of them, in an SrXlavit action of ejectment, his agent or =^l^»J"ey.«hall, at the return tiiat dert en- term of the declaration in ejectment, file his alhdavit that tne ir&^c ''he'"" tenant in possession of the premises sued for, and to whom slmil not plead the notice of the said suit is directed in the process issued, till he maice, ^ . j i,^to said premises as his tenant, or as tenant of the counter affida- "^"'"-'^" ""^" I 1 .,,.,, U,..f tlin .;-iifl vitaml give person, for whom such agent or attorney (h^po^e^, 1 li.it tiic saui n^l^s^^icfusTs't'-nant's term therein was expired, at the commencement ot the suit, and that he refuses to surrender the possession of the Chap. 31.] courts, couxty and superior. 167 premises to said les.sors or any one of them; then the per.'^on in possession or any other person applying to become defend- ant, shall not be entitled to plead to the suit, and the lessors of the plaintiff shall be entitled to judgment final against the casual ejector at the said term, unless the person in posses- sion, or other person applying to be made defendant, shall make affidavit before the court, in writing, that his term therein had not expired, and also enter into bond with ample security in such sum as the court shall direct, conditioned that the defendant shall pay the lessor or lessors all such costs and damages as shall be recovered in the suit; and the jury in On the trial iu- such cases, when issue may be joined, shall find in their ver- J?c's -"if for'''^ diet whether the defendant entered into possession of the pi^iintiff, shall premises as the tenant of the lessors or of which of them, and ^orwa'l'f^lfd whether he refused to surrender the premises after his term occupation.— therein had expired. And if the finding be in favor of the Tsi ^' "' "^' lessors of the plaintift', the jury shall assess the damages to which they shall be entitled, including the value of the occu- pation of the premises sued for from the expiration of the ten- ant's term to the rendition of the verdict, and damages for waste and trespass during the time of said holding over ; and the court shall render judgment against the defendant and his sureties upon their said bond, to be discharged by the pay- ment of the damages assessed and all costs; and judgment upon the verdict shall bar the action for mesne profits or for the trespass by any of the lessors in said action. 49. If afbu- issue joined in any action of ejectment the V]eapu!sdarre- defendant shall voluntarily abandon the possession of the h"l''e,]tered'hf" premises sued for, and the lessor of the plaintift' shall enter to possession,"" therein, a plea by the defendant of such entry and possession "eted ^Mthtut shall not be received, unless the same be verified by affidavit .iffidavit and and accompanied with payment into court of all the plaintiff's S?;"™'"'"'' costs ; and such plea shall be a waiver of the plea already pleaded. And in all cases where the defendant shall have And if bond be given bond in pursuance of the provisions of the preceding gl'^^TjSon section, and he shaU plead such entry and possession since the .i""- to assess last continuance, in manner aforesaid, and the same shall be ocSonand admitted by the plaintiff, or on issue joined be found for the «aste. plaintiff", the jury shall assess damages in the manner provided for in said section, and the court shall render judgment for the same against the defendant and his sureties on their bond aforesaid. 50. AU writs and other civil process and precepts, except Writs and-civii subpcEnas returnable immediately, shall, unless otherwise di- |.erunr.d"''"' reeled, be returned the first day of the term to which the same '^""""' ' shall be returnable, and shaU be executed at least ten days before the beginning of the term, when returnable to a superior court; and at least five days, when returnable to the county court; and if any original or mesne process shall be taken out. How long be- withm the time above specified, it shall be made returnable to <"i'' cnm-t to be the second term next after process issued ; and all process, s^Tii, s. ss. 168 COURTS, COUNTY AND SUPERIOR. [ClIAP. 31. made returnable or executed otherwise than is herein directed, shall be adjudged void upon the plea of the defendant. Shfr. returning 51. Wlicu u slieritf shall return that he hath taken the body deft, injmi, ^j defendant and conunittcd hiin to the prison of his Eppar^nc" countv, which is hereby declared to be the proper place for &c.-lt. S.c. g^j^.,j conunitmcnt, the plaintitT may enter the delendant's appearance, and he shall be at liberty to plead, as if such appearance had been entered by himself, and the plaintitYmay proceed as in other cases in this chapter directed; nevertheless the defendant shall not be discharged out of custody but by putting in bail, or by rule of court. Orthatthedeft. 52. When the sheriff shall return in a civil action, that the found '"uilntiff defendant is not to be found in his county, the plaintifl may, may issue "Vfls at his election, sue out an attachment against the estate of or attachmeut. ^^^^ defendant, or an alias, or plttries capias, until he be ar- rested, returnable in the same manner as original process; and if the sheriff shall return any estate by him attached, the plam- tiff shall file his declaration according to the rules of the court ; On failure of and if the defendant shall fail to appear and plead within the fu"™cntT" time herein directed, the plaintiff' shall be entitled to the like default may be iudcrment, final or interlocutory, against the defendant as if he iStatftakenonhad appeared and had failed to plead; and the estate so idicial attach- attached, if not replevied or sold, according to the rules pre- repkli'^ed^dd scribed for estate taken on original attachment, shall remain in on final judg- the custody of the sheriff until final judgment, and then be "Tfj^'^'"' disposed of in the same manner as estate taken in execution " ' ' ' on a writ oi fieri facias, and if the judgment shall not be satis- fied by the estate attached, the plaintiff ' may have execution for the residue. men shir, re- 53. And whcu any defendant, in a writ or other process, turns deft, to be ^j^^jj j^^ ^ known inhabitant of any other county than that of of"anoTher"" the sheriff, to whom such writ or process shall be directed, the county, «to to gj^pi.jj^ ^j^.^jj ^gtum the truth of the case; and thereupon an e!s!c.'31's?b7. alias shall issue, directed to the sheriff of the county where such defendant resides. Process not to 54. It shall not be lawful for any sheriff constable, or other Sundr"lra'r officer, to execute any writ or other process on Sunday, or upon of'electi'oni'or any person attending his duty at a muster of the militia, or at inustcriuoron election of members of the General Assembly, or of mcm- iesscs.-u.'s. bers of Congress, or of electors of President and Vice-President, c. 3i,s.58. ^j. yj- ^,^y oiiiccr of this State, or upon any person attending under summons as witness or juror; and all such service of process is hereby declared illegal and may be abated by plea, unless the same be issued against such person for treason, felony, or misdemeanor. When there is 55. If at any time there should not be in the county a win noTcxT-''" proper ofiiccr, to whom precepts or process, original, mesne, or ^ltcp?oc*e a demurrer filed, time may be allowed, upon motion ol" either ^I'.l^X'umw party, to the next term to argue the same. &c. ' 15 170 COURTS, COUNTY AND SUPERIOK. [ClIAP. 31. Parties may (5 ) 111 any matter or suit depending in said courts, either o^vn suit" &f plaintiff or defendant may declare, plead, and defend his own cause ; and no instrument of writing, which contains the sub- stance, shall be lost or destroyed for want of form. Proceedings of (6.) For the better preservation of the records of court, when ter"Jfb?crerk" any cause is finally determined, the clerk shall enter all the fn'weii-Sound proceedings therein in a book well bound, and an entire and '""'''■ perfect record make thereof. Jury causes to /7 \ Jury causes shall be first tried. 'toionsia t 8.) Motions in arrest of judgment shall be argued within rest ofjudg- iije tiiree last days of the term, in which the issue shaU be triea, S-™ed!when. the defendant's attorney first serving the plaintiff's attorney with a copy of the reasons in arrest of judgment, unless, upon sufficient cause shown and approved of by the court, further time shall be allowed. Argument (9) Arguments on writs of error, special verdicts, cases to be'LTrf.''"' agi-eed, demurrers, and petitions shall be heard upon the four last days of the term. Plea in abate- (10) No plea in abatement shall be received in any court, "wiro'niy'on Unless the party offering the same shall, by affidavit or other- aifidavit or wise, prove the truth of such plea. ^Vhen over (H-) Where a plea in abatement shall be pleaded, and upon ruled, plaintiff argument it shall be adjudged insufficient, the plaintilt shall Shan recover ^^&^^^^ ^^^.^^^^ ^j^^ defendant full costs to the time of over- As many pleas ruling such plea ) and the plaintift in replevin, or defendant in Say bSd- any action may plead as many several matters as may be ed. necessary for his defence, so that he may not be permitted to plead and demm- to the whole. Plea since the (19) The entering a plea since the last continuance ot a a"cVu"owa" or suit at law shall in no case be construed a waiver of any plea of foi'mcr pleas, previously entered ; but the same shall retain the like lorce ana operation, which it would have had, if such plea since the last continuance had not been entered : Provided, such plea be ot matter that may be well pleaded with the matter ot the other Issues tried at (13) AH issues, whether general or special, shall be heard afterTad"eup and tried the next succeeding term after they shall be made up. No cause con- uiffcss by conseiit of parties, or ou sufticient cause shown to "t'oron the court by affidavit fded, the case shall be continued; nor affidavit. shall any case be continued at any term but by consent, or on affidavit showing sufficient cause. Court may or- (14 ) Whenever it shall be the opinion of the court, that the '^^Z^ party praying a continuance should not obtain it without pay- pay costs. ^ent of costs, the whole of the costs shall be paid belore the continuance is granted; and the party paying such costs shall not be entitled to recover them, although the judgment ot the court be finally in his favor. One att'y only (15.) The plaintiff or defendant may employ several attor- "?i'''"'l''b"v"'''"'' neys in his case, but more than one shall not speak therelo, court.' ^ unless allowed by the court; and in jury trials they may argue tb'-'iu'v'b'ofh to the jury the whole case, as well of law as of fact. law and fact. Chap. 31.] courts, county and superior. 171 (16.) Every attorney who shall claim to enter an appearance Power of nttor- for any person shall, upon bein<^ required so to do, produce and T^' '? ''^ PI'.'- , P,l , • , ii „ II) cc c ii / ■ 1 . , , , ■> , . cluced ami filed lile in the clerk's othce of the court, in which he shall claim to by attorney, if enter an appearance, a power or authority to that etrect signed >'^l">'"e'l- " 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, if necessary to that when any attorney shall claim to enter an appearance by erfthat "t/be" virtue of a letter to him directed, (whether such letter purport done.— i;. s. c. a geiieral or particular employment,) and it shall be necessary is^; f;^, 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. 58. In actions brought on any bond, or on any penal sum In actions on for the non-performance of any covenants or agreements in any ^™*' \^\^^lis indentm-e, deed, or writing contained, the plaintiff may assign may Ltiga as many breaches as he shall think fit, and the jury, on the "'""y'"''''"'''^'- trial of such action, shall assess, not only such damages and costs as have heretofore been usually done in such cases, but also damages for such of the said breaches assigned, as the plaintiff upon the trial of the issues shall prove, and the like judgment shall be entered on such verdict as heretofore hath been usually done in such like actions; and if judgment shall If j«fi.';mentbe be given for the plaintiff on a demurrer, or by confession, or by fffoJ/demur"" default, the plaintiff, upon the record may suggest as many rer, &c., he breaches of the covenants and agreements as he may think fit, toeLh"f°" upon which a jury shall be impanelled to inquire into the truth of any of the breaches, and to assess the damages that the plaintiff shall have sustained thereby, which inquiry shall be made as in other cases of judgment by default; and in case Deft- may pay the defendant, after such judgment and before execution exe- cosTsfn'to""'* cuted, shall pay into court, to the use of the plaintiff or his court, and then executors or administrators, such damages so assessed, together 1° J,T,!!p'°" with the costs of suit, a stay of execution of the judgment shall be entered on record ; or if by reason of any execution executed, the plaintiff, or his executors or administrators, shall be fully paid or satisfied all damages so assessed, with his costs of suit, and all reasonable charges and expenses for exe- cuting the execution, the body, lands, and goods of the defend- ant shall be thereupon forthwith discharged from the execution, wdiich shall likewise be entered upon the record; but notwith- ■T"'i.?i'i<'"'.*'t'^" standing, in each case such judgment shall remain, continue, foMurther""^ and be as a further security to answer to the plaintiff, and his breaches.— R. executors and administrators, such damages as shall be sus- flsVa'w.'s,' tained for further breach of any covenants in the same inden- c- n, s- «• ture, deed, or writing contained, for which the plaintiff may have a scire facias upon the said judgment, against the defend- ant, his executors or administrators, suggesting other breaches of the said covenants or agreements, and to summon them respectively to show cause why execution shall not be awarded 172 COURTS, COUNTY AND SUPERIOR. [ChAP. 31. upon the said judgment; upon which there shall be the like proceedings as were ui the action of debt upon the said bond or obli'Tation, for assessing damages in manner as aforesaid ; and upon payment or satisfaction in manner as aforesaid of such fature damages, costs, and charges, all further proceeding on the said judgment are again to be stayed, and so toties quoties. Rules for sum- 59. In obtaining the testimony of witnesses in causes de- "e^ses^ ^^^ pending in the superior and county courts, the following rules shall be observed in practice, to wit: — Subpcena for In sults where witnesses are to appear at any court, the clerk witnesses, how ^^ ||^g 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 sum- moned. Subpoena re- Every subpoena made returnable immediately, shall be is- di™ef '^toT-"" sued only in term time, and shall be personally served on the sue in term witness therein named. tinae only. ^ ^f g^,g,.„ g^bpcEna issued by the clerk in vacation, iug in vacation, in case any witness therem named is not to be lound, may be bowservea.- j^^^ ^^ his usual place of residence; and such copy, certified 64. ' by the sheriff or other officer, and left as aforesaid, shall be deemed a legal summons, and the person therein named shall be bound to appear in the same manner as if personally sum- moned. Wituesses to 60. Every witness, being summoned to appear in any of attend from ^j-^g g^^j^j courts, iu manner before directed, either in a civil suit, tm"dis°eharged. or in a criminal prosecution or plea of the State, 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 prosecution or plea of the State, until discharged by the court, the prosecuting officer, or the party at whose instance he was summoned ; and in de- fault thereof shall forfeit and pay, in civil eases, to the party Penalty for not at whose instance the subpoena issued, the sum of forty dol- attentiing. lars, to be recovered by scire facias, and shall be further liable In civil cases. ^^ j^.^ ^^^.^^^ ^^^ ^j^^ ^^^y^ damages which may be sustained for the want of such witness's testimony; or if summoned in a In criminal criminal prosecution or plea of the State, shall forfeit and pay cases.-R. S. c. ciijhtv dollars for the use of the State, or the party summon- ^'^'■''- in|him. Entitled to pay, 61. Provided always, that, if the civil suit sliall, in the va- if they attend" nation, be accommodated and settled between the parties, and seuied'in'vaca- the party at whose instance such witness was summoned tion, unless no- j,[,o,jij omit to dit^cliargc liim from further attendance, and for "m.'go"'^'"' want of such discharge, he sliall 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 maimer as other Chap. 31.] courts, county and superior. I73 witnesses, and shall recover from the party, at whose instance he was summoned, the allowance which is given to witnesses for their attendance, with costs. 62. And provided further, that no execution shall issue Xo execution to against any defaulting witness for the forfeiture aforesaid, but if™[,j'f'''""- after scire facias made kijown to him to show cause against iie.j'j 78. In actions upon the case for slanderous words, and in In M-,it, for actions of assault and battery, if the jury upon the trial of the '^'^""''"' ^"'' "■'- issue or inquiry of damages, do assess the same under four ii' lin^v'uS; dollars, the plaintiff shall recover only as much costs as ^*' ''"**' "'o damages. " ^ .3T"'^' ''' ''' 79. In actions of trespass quare clansvmfregU, wherein the i„'tre,'p~ssq detendant in his plea shall disclaim to make any title or claim <=• ''■ 'lefentUint to the lands, in which the trespass is by the declaration sup- .3'\"en- posed to be done, and the trespass be by negligence, or invol- '''^'••■S.-cin bm-. untary, the defendant shall be permitted to plead a disclaimer, i^.^"' '• ''' '' and that the trespass was by negligence, or involuntary, and a tender or offer of sufficient amends for such trespass; where- upon, or upon some of them, the plaintiff shall join issue, and it the issue be found for the defendant, or the plaintiff shall be nonsuited, the plaintiff shall be barred from the said action and all other suits concerning the same. 80. When several persons are made defendants to an action i„ t.e.pas, 01 trespass, assault and battery, false imprisonment or eject- ^'■■' "f-™"^' ment and any one or more of them shall upon the trial be;S& acquitted by verdict, every person so acquitted shall have and '-ecoverfuii re-cover his costs of suit, in like manner as if a verdict had been hXrc 'nifies given against the plaintiff and acquitted all the defendants ■&c.-E.S.c. ' unless the judge before whom the case is tried shall, imme- ^^' '" **" diately after the trial, in open court, certify upon the record, under his hand, that there was a reasonable cause for makino- such person a defendant. ^ 81. In all causes depending in any court, in which the pro When a f na duces duction of an original paper, lodged in any of the public offices r-^.- — ot the btate, or m any office of a county, superior, or supreme '''■"'"^Ify court, shall become necessary, the court may issue the process s^.'ss.'" '' of subpcena duces tecum, requiring such persons as hold said offices to attend the court with such original paper, in Uke manner and under the same penalties as witnesses are required in cases of subpojna to testify. 82. The said courts shall have full power in the trial of Cmu-t mny or- actions, on motion and due notice thereof given, to reauire the fi^'- P^i'-ties to parties to produce books or writings in thei" possession or con- Tplir^.^"'^ trol which contain evidence pertinent to the issue, in cases and under circumstances where they might be compelled to pro- duce the same by the ordinary rules of proceeding inequitv- and if a plaintiff shall fail to comply with such order, and shall rrfffaiiin. to not satisfactorily account for his failure, the court on motion '"^ """^•■'"• may give the like judgment for the defendant as in cases of ^aX^::S^ nonsuit; and if a defendant shall fail to comply with such -«"«.' ?.'3i, ' order, and shall not satisfactorily account for his failure the''*"' b°"efaulT*'°" ""' aforesaid may give judgment against 'him 83. The indorsee of any promissory note, or other neo-o- 1'"'<"--=''<' '""y Liable securitv for IItp .in^-inoiif ^e .„X .° sue maker nnd s<-*,uiii.y lor tne pa3,ment ot money, may prosecute a imUnvoi- joint- suit lor the recovery of the money due thereon, damages, and 'v o/ .^ev>,-.iiy. charge of protest, jointly against the makers and indorsers ecmol^ai^dlJd 178 COURTS, COUNTY AND SUPERIOR. [ChAP. 31. raini?trators.— thereof, OT Qgain.^t any one or more of f hem ; and if any one r s' c 3i' s °' or more of such persons should die, the aetioii may be prose- 88. ''^"' '^' cuted against his executors or administrators, severally or jointly with the survivors. On joint obii- 84. Ill all cases of joint obligations, or assumptions of co- fn'/o" mt^' partners in trade or others, suits may be brought and prose- m.iy be sued.- cuted on the same against all or any number of the persons B.S.c.3i,s.89. j^jji-jj^g g^^gi, obligations, assumptions, or agreements. Joint obligat'n Qo. In case of the death of one or more joint obligor or aSXJsecu- obligors, the joint debt or contract shall survive against the tor-s&c.—R.S. executors and administrators of the deceased obligor or obli- c. 31, s. 90. ^^^^^ ^^ ^^^^jj ^_^ against the survivor or survivors, and when all the obligors shall die, the debt or contract shall survive against the executors and administrators of all the joint obligors. Judgm't iiow 86. In cases where an executor or administrator of any one entered against Qf several persons, against all of whom living a joint action aXuvvtvh/g' may be sued, shall be sued with the survivors of said persons, obligors.— R. S. and it may be necessary that judgment should be rendered c. 31, s. 91. j^gj^i,-m|. such executor or administrator, such process and judg- ment may be awarded against him, as if he had been sued severally, and judgment may be awarded and entered up against the survivors as is usual in other cases. Several actions 87. Where there are more persons that one bound on any conu-rttbe bond, promissory note, or other contract, whether they be consolidated.— bound as Original obligors, contractors, or indorsers, and tlie ™iy taxed- plaintiflt shall institute more suits than one upon such bond, R. 8.0.31,3.92. note, or contract, the writs, on their return to the court whence they issued, shall be consolidated, and one attorney's fee only shall be taxed. judgm'tbonds 88. All judgment bonds, notes, and other witings, with voiJastopow'r po^yer fo any person whatever to confess judgment thereon, meTt!-l'i"s°"c. shall be utterly void as to such power ; but the same proceed- 31,5.93. ingg shall be had thereon as on common bonds and penal notes. Eseeu'ns from 89. Executions from the courts of pleas and quarter-sessions county courts j^^v issue to any county in the State, in the same manner and mav issue to ^ . "^ . ,• p _ : — ^.^.-...^ Sv counV-- uiicler the same rules as executions from a superior court. B. s. 0. 31, s. 90. AH sums of money due by contract of any kind what- Lrestoncon- soever, excepting only money due on penal bon-"^- ■^■'^•'" '— tracts except interest, and when a jury shall render a verdict S,To\Xad- shall distinguish the principal from the sum allc Lrestoncon- soever, excepting only money due on penal bonds, shall bear • ■ ' ' - _u.-ii 1 — n ,r.»^^iir.f tliereior, tiiey ^ndonalljuds- snail UlSUUgUlsa llie p.u..:,p.u x...... .,,. ...... "'■^'^'^ '^^ '"|'''"' merits. est; and the principal sum due on all such contracts ^liall beai ™!"slprinlt"I interest from the time of rendering judgment thereon until it From interest, be paid and satisfied. In like manner, the amount of any -"•S-o-si-s-jiidgmcnt 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 decree of the court shall be rendered according to the provisions of this section. In in.vmnnts 91. Whenever\i suit shall be instituted on a single bond, a final hyde- covenant for the payment of money, bill of exchange, promis- edhVdiMk.- note, or a signed aeeouni, and the defendant, shall not K.s;c.3i,s.9G. |^..^j^Q jg^^e thereon, upon judgment, the clerk of the court Chap. 31.] courts, county and superior. 179 shall ascertain the interest due by law, without a writ of in- quiry, and the amount shall be included in the final judgment of the court as damages, which judgment shall be rendered therein in the manner prescribed by the preceding section. 92. Petitions to the county or superior court may be filed Petitions filed during the term or in vacation ; and the clerk of the court, in '° vacation. whose office^ any petition may be filed, shall indorse thereon the time of filing, and issue copies and subposnas ; but in case the petitioner shall specify the amount of his debt or demand, (as nearly as may be,) and shall make oath to the same in open court, or before the clerk, said clerk shall issue copies of the capias to i.sue petition to, and a capias ad respondendum, against the defend- "i"'" affiJ^ivit ant whom the petitioner, by his affidavit, shall charge to be dema.'.T-R'" his debtor, for the amount so charged. S. c. 3i, s. 97. 93. In suits by petition, service whereof hath been made on Pubiica'n to be one of the defendants, if it shall be shown to the court by "'''.'I'' ''f.T; affidavit or otherwise, that another defendant is not an inhabi- inT^'eaofpl! tant of this State, or on diligent inquiry cannot be found ; as ""°°- likewise when a petition shall be filed in court in vaca- tion against any who reside beyond the limits of the State, and such non-residence is verified by affidavit before the clerk of the court, then, in either case, publication shall be made for SIX weeks successively in some newspaper printed in the State, for such non-resident defendant to appear and make defence to the suit at the next term of the court, and that, in default thereof, the petition will be taken pro coiifesso and heard ac- Decree pro ««- cordmgly ; and if at the next term, (unless further publication ■^'"''■""S-";""' be directed by the court,) it shall be shown that publication to bind a 'in has been duly made, the court may proceed in the cause to "''s^sls -' the final decree therein, in the same manner as if there had iS40,'c'45."- been personal service on the defendant ; and any decree in the ^^^°' "■ "^• cause shall conclude the defendant to such extent, in like man- ner and under like rules, as if made in a court of equity. 94 When any matters of account shall be involved in a Court mav or- suit by petition, the court may order their clerk or other per- derderk toau- son to audit and settle them, and to report the balance due acooui!!^ 'l. thereon, in the same manner and under the same rules, as in ^- "■ ^^' -• ^'*- references bycourts of equity to the masters thereof. 95. Depositions to be read as evidence in the trial of suits Depo'tns in by petition, may be taken in the manner hereinbefore pre- ''^p"I''''*l'i"'- scribed. ^ ut ' 96. The clerk shall receive the same fees for reports in cases fees of clerk referred to them in suits by petition, as clerks and masters for ^"■"'= "f '^'^"i- like services, 3i; s. iui. 97. All persons within age may sue by their next friend. Suitbvinfa.its. J8. Whenever the plaintilT or defendant in any superior Two *■"' ''^' court shall except to the ojfinion of the court, and the same iiin of excep- shall not be allowed, tlie party making the exception shall h"':-£t.;';t commit the same to writing and require it to be signed and in'i=c tos'ign sealed by the court, and the judge shall sign and seal the i'."V'c' sPs same ; which bill of exception shall constitute a part of the u'S. ' ' •" ' ■ 180 COURTS, COUNTY AXD SUPERIOR. [ClIAP. 31. record ; and upon an appeal, the court shall proceed to judg- ment according to the exception as the same ought to be allowed. Actions of ncct. 99. Actions of account may be brought and maintained S"&a?rn"r3 against the executors and administrators of any guardian, ofgunrd'n?"&c° bailiff, and receiver ; and also by one joint-tenant and tenant ~Wi^' '^' ^^' i'l common, his executors and administrators, against the other as bailiff, for receiving more tlian comes to his just share or proportion, and against the executor and administrator of such joint-tenant and tenant in common ; and the auditor ap- pointed by the court, where such action shall be pending, may administer an oath and examine the parties touching the matter in question ; and for his service in taking such accounts have such allowance as the court shall adjudge reasonable, to be paid by the party against whom the balance of the account shall appear to be. Ifdefntinpe- 100. If an action be brought in good faith by any person nul suit plead ^^ recover a penalty under a law of this State or of the United meXrSiff states, and the defendant shall plead in bar thereto a former tau7!L'l H judgment recovered by or against him, in a former action 7,'c! 20. ' brou<^ht by any other" person for the same cause, then the plainliff in such action brought in good faith, may aver that the said former judgment was obtained by covin ; and, if the collusion or covin so averred be found, the plaintiff in the Release of the action, sued with good faith, shall have recovery; and no re- action void. |gj^j.g i-iiade by such party suing in covin, whether before action Ms'ehlSct"? brought or after, shall be in anywise available or effectual: bie.— R. S. c. ^ijj g^.pry person pleading such false plea shall be deemed 31, s. 103. I- • J guilty of a misdemeanor. Paymentorsat- 101. When an action shall be brought on any single bill. isfaction ^^ when an action or scire facias shall be brought on any TsuitsKmi judgment, if the defendant hath paid the money due upon nnd judgment, g^^^]^ ^^jQ qj. judgment, before action brought; or where the defendant hath made satisfaction to the plaintiff of tiie money due on such bill or judgment, in other manner than by pay- ment thereof, such payment or satisfaction may be pleaded in bar of such action or suit ; and where only part of the money due on such single bill or judgment hath been paid by the de- fendant, or satisfied in other manner than by payinent 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 Also payment judgment as the same may amount unto ; and where an action rfteHho'davofof debt is brought on any bond, which hath a condition or pavini;, in suits defeasance to make void the same upon the payment of a di\io,?cf toTc lesser sum at a day or place certain, if the obligor, his heirs, discharged by exccutors, Or administrators have, before the action brought, R^s! TI\7b. paid to the obligee, his executor or administrator, the principal 106.' ' ' ' and interest due by the condition or def(>asance of snt^ii l)i)i)d, though such payment were not made shictly according to the condition or defeasance ; or, if such obligor, his heirs, execu- tors, or administrators have, before action brought, made satis- Chap. 31.] courts, county and superior. 181 faction to the plaintiff of the principal and interest due by the condition 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 effectual as a bar thereof, in like manner as if the money had been paid at the day and place, according to the condition or defeasance, and so pleaded. 102. If at any time pending an action on any such bond ^".''"''' ,"" P^" with a penalty, the defendant shall bring into court, where the sum lUft, inter- action shall be pending, all the principal money and interest e^t, and costs due, and also all such costs as have been expended in any suit intocourt,"s1iaii in law or equity upon such bond, the said money shall be discharge pen- deemed and taken to be in full satisfaction and discharge of si^'^s. io7. said bond, and the court shall give judgment accordingly. 103. Every judgment given in a court of record, or before judgments to a magistrate having jurisdiction of the subject, shall be and ''and till re- .o . -1 1 T 1 versed. — R. S. contaiue in force until reversed according to law. c. 3i, s. 108. 104. When any defendant shall appeal from the judgment On appeal or of a justice of the peace to the county or superior court ; or Jj^™[ f^yf^" j^^, when the judgment of such justice shall be removed by the de- tice's judg- fendant, by recordari or otherwise to a superior court, the "^y conipei court having cognizance of such appeal or recordari may, plaintiff to se- upon sufficient cause shown by affidavit, compel the plaintiff g"g'^3j^3^'{^3_ to give bond, with sufficient security, for payment of the costs of the suit, in the event of his failing to prosecute the same with effect. 105. When an appeal shall be taken from the judgment of Appeals from a a justice of the peace to a county or superior court, the same [I^ig'ii^rs" term shall be reheard by the court ; whereupon an issue shall be of court. made up and tried by a jury at the first term to which it is agaiuTparty returned, unless continued; and judgment shall be given cast .and his therein against the party cast and his sureties. And when s.'c'^sT'sTiio. the defendant shall make default, the plaintiff on such de- How to obtain mands as are mentioned in section ninety-one of this chapter, g^f of 'iJef"uit. shall have judgment in the manner ther^n provided, and in other cases, may have his inquiry of damages executed forth- with by a jury. 106. Provided, that if judgment be entered for the plaintiff, if pi!ii"tiff ap- and he shall not recover on his appeal a gi-eater sum than was er no'greater^" recovered before the justice, besides interest accrued since the sum, shiii not rendition of the judgment, he shall not recover the costs of the liUbu- topay.- appeal, but shall be liable at the discretion of the court to pay R- s. c. 3i, s. the same. ■'^ " 107. In appeals from the county to the superior court, if the Appeals to su- trial in the county court was of an issue to the country, a trial Go'w u-ied. --^ R. de novo shall be had; and if on the hearing of a petition, S-c-3i,s.ii2. there shall be a rehearing. 108. In every leap-year, the increasing day and the day L^ap-year day before, in all legal proceedings, shall be counted as one day. _k. s. c. ai, 109. No execution shall issue upon any judgment obtained^; 'i;'- in said courts, after a year and a day from the rendition to issue ou 16 182 COURTS, COUNTY AND SUPERIOR. [ChAP. 31. judgment after thereof. Provided, that, whenever execution hath been issued a year and a upon such judgment within tlie year and day, tlie clerk may day, unless re- . r i f^ ,, •" i , , .• -i-i • vived. — R. S. issue an execution to enforce the judgment, at any time within 13e'i'c"45~^ year and day from the it^suing of the last execution; and ' ' ' ' when the party claiming the benefit of such judgment shall come after the year and day, he shall not be entitled to an execution, until he have caused a scire facias to be issued to , the defendant, wherein the sheriff shall be commanded to give notice to the defendant that he appear before that court in which the judgment is, at a certain day, to show if he have any thing to say why the judgment ought not to have execution ; and if he do not appear and show cause why execution ought not to be done, the sheriff shall be commanded to cause the judgment to be executed. Nonsuit not al- \\Q_ 1,^ all cases where a verdict shall pass against the diet!— r!'^S.''c" plaintiff, he shall not be nonsuited. 31,5.115. Ill, When a certiorari, or writ of habeas corpus cum causa tion'no^tobr shall issue, and the sheriff, or other officer to whom it is di- discharged on rected, shall return upon the same tliat the prisoner is con- — R^^S.'^c.^si; demned by judgment given against him, and held in custody s. 116. — 2 H. by virtue of an execution issued against him, the prisoner *' '^' ^' shaU not be let to bail, but shall be presently remanded, where he shall remain until discharged in due course of law. Death between 112. In no action shall the death of either party between Judg't Ut er- the verdict and the judgment be alleged for error, if such judg- ror, if,&c.— K. nient be entered within t%vo terms after the verdict. Adm'f d'b. n! 113. When any judgment shall be had by or in the name may iiaye ex'n Qf j^,^ executor or administrator, in such case an adminis- forraer°alm'r.'*' trator de boiiis tioii may sue forth a scire facias, and take exe- — R. S. C.31, s. cution on said judgment. Accounts may 114. Whenever suit shall be brought against an executor, be taken in cer- administrator, or guardian, or upon the bond of any such per- tain actions ' o „ _ _ '. , > . . . .,. - , , , • matters pleaded in such suit may make it necessary that an account shall be taken in order to a due determination of the cause, the court, at the appearance term, or at any time in the progress of the cause, may, in its discretion, refer the taking of such account to such commissioner or commissioners as the parties may select ; if they cannot agree in tiic selection, then the court may refer it to the clerk or any otlier per- To be stated as SOU as commissioner, and such commissioner shall state an in equity. account, under the same rules and regulations as are provided for stating accounts in courts of equity; whose report, wlien confirmed by the court, shall be conclusive evidence of the amount of the plaintiff's demand only as against the parties; Paytocommis-and the court shall allow the commissioner for his services,_in sioncrs.— R. S. jiijg manner as masters are allowed, to be paid by the parties iSBol'c.'sV.^'" in such proportions as the court siiall adjudge. Causes in sup'r 115. In all causcs in the superior courts, civil or criminal, courts, may be Chap. 31.] courts, county and superior. 183 in which it shall be suggested on oath, on behalf of the State, removed on of the traverser of the indictment, or of the plaintiff or de- ?®'l"^''' '° ''•'" fendant, that there are probable grounds to believe that justice •\v™"tlmukr cannot be obtained in the county in which the causes shall "'?'}i'^;'.'J" '''^* be pending, the judge is hereby authorized to order a copy "' ^ ''"''■ of the record of the cause to be removed to some adjacent county for trial. The provisions of this section shall extend to indictments against slaves ; and the affidavit for removal on the part of the defendant may be made by the master, or by the slave, under the advice of his counsel as stated in the affi- davit. Provided, lioioever, that no cause shall be removed, Reasons for re- unless the facts are set forth, whereon the party founds his forthl'-R!!?' belief that justice cannot be obtained in the county, so that c sijs. 120. ' the judge may decide upon such facts, whether the belief is well grounded. 116. When an application shall be made to remove any Eemoved twice cause, civil or criminal, to an adjacent county, which shall ""J^^ have been before removed, the person applying shall set forth movarrensont on affidavit, particularly and in detail, the grounds of his appli- stated in detail. cation, and the presiding judge may, in his discretion, remove 123.' ■''•^^'^' the same to any adjacent county for trial. Provided, that no cause, under any circumstances, shall be removed more than twice. 117. The parties to any cause, civil or criminal, in the su- Removed bv perior court, may by consent remove the same for trial to any 1°"' g",'' "loi convenient county, which shall be entered of record. '*^' '^' ' 118. When a cause shall be directed to be removed, the On removal clerk shall transmit to the court to which the same is removed, what to be sent a transcript of the record of the case, with the bail-bond, pros- -R. sfc!3i7s.' ecution bond, and the depositions and other written evidences ^'^'^• filed therein. _ 119. Whenever, in any suit pending in the county or supe- Survevs order- rior court, the bounds of lands shall be drawn in question, 'jf, '" '^■Jf'^^ °f the court may, if deemed necessary, order a survey of the iSy!" °"" lands in dispute, agreeable to the bounds and lines expressed "fi;^,™^.,'}^ in each party's titles, and such other surveys as shall be deem- Ch™pe"'fOT' edi s to be ed useful ; which surveys shall be made by two surveyors ap- ^^^^^ pointed by the court, one to be named by each of the parties, -r'sI'c.'^sT.'s: or by one 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 allowance, to be taxed as and among the costs of the cause. 120. Where the clerk of the superior or county court issues Seal of court precepts or process to the county of which he is clerk, he shall ""'.'' wi'cn'-" not annex the seal of the court thereto. E. s. c. 31, 's. 121. The sheriff of every county shall serve all notices that N^ft'icci.in le-'al may be tendered or delivered to him, or that are required to P' «ee.iiii{rs "to be given in any cause, motion, or proceeding, either at law or \\,^^,sT^ ^^ in equity, as well for commencing, as for proceeding therein 184 COUETS, COUNTY AND SUPERIOR. [ChAP. 31. How served, imtil the Same shall be ended; and he shall serve them by Eetuni, cvi- deliverinff a true copy thereof to the person to whom the dence of se.- ^^^^^ ^j^^,, j^^ directed, if to be found in his county, or by leav- Wien executed ;„„ a copv thereof at the usual place of abode of such person lop''artf"'""'^n his county, and shall certify on the notice the time when wiien "sheriff gald uotice was served, or copy was left at the place of abode. oner to serve'" Such return shall be evidence of the service of the notice as and return mjiy be therein stated ; and the sheriff shall deliver the notice *3lTr26'm'with his return to the party, his attorney or agent, at whose ' ' ' instance it was issued, upon demand of the same ; and in case the sheriff of the county in which such notice is to be served, shall be a party, or interested in the proceedings, the coroner shall serve the same and make return thereof in the manner aforesaid. Penalty on of- 122. Any sheriff or coroner, neglecting to execute and re- ficerfor foiling ^^^^.^^ ^^^^^^ notice, or making a false return thereon, shall be sub- 0° raakingr' ject to the same action and penalties, as for neglecting to serve, flUse return.— ^^ ^^^ falsely returning process, directed to him from the supe- R.S.c.3i,s. ^.^^ ^^^^^^ ^^ j^^^^ ^^ ^^ prosecuted, recovered, and applied, as actions and penalties are directed to be prosecuted, recovered, and applied, for neglecting to serve, or for falsely returning process issued from the superior court. _ Return on sci. ]^23 When a scire focias shall issue to the sheriff, his return •^"■s"i'!Ti?r thereon that the same has been executed, shall be deemed suf- 130. ' ficient evidence of the service thereof. Defts. may 124. In the trial of actions at law upon conti-acts, either of sur^ies^anT the defendants may show in evidence that he is surety, and if juJyOT'jmtice it be satisfactorily shown, the jury in their verdict, or the jus- -R°S 'c'si'l' tice of the peace in his judgment, shall distinguish the princi- 131.' ■ "■ ' • pal and surety, which shall be indorsed on the execution by the clerk, or justice of the peace issuing it. Property of 125. When an execution, indorsed as aforesaid, shall come principal to be ^o the hands of any officer for collection, he shall levy the same a.?dioM'-R" on the property of the principal, or so much thereof as shall S. c. 31, s. 132. )3p necessary to satisfy the execution, and for want ot suth- cient property of the principal, also on the property of the surety, and make sale thereof. Provided, nevertheless, 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. _ Judgment for 126. Whenever a suit shall be brought in said courts, m p?aintm-and' which security shall be given for the prosecution thereof; or sureties on fail- when any case shall be brought up to said courts by an appeal B"s"r3il or otherwise, from a justice of the peace, or from the county 133.' ■ ' court, in which a bond for the prosecution of the suit shall have been given, and judgment shall be rendered against the plaintiff for the costs of tlu- defendant, the court, upon motion of the defendant, shall also give judgment against the surety for said costs, and execution may issue jointly against the plaintiff' and his surety. Aftcriudgment 127. The defendant, against whom any final pdgment or pay turmouey decree for the payment of inoncy may be rendered or made by Chap. 31.] courts, county and superior. 185 any court of record, may pay the whole or any part thereof *» the clerk.— to the clerk of the court, in which the same may have been fit "" ^^' ^■ rendered or made, at any time thereafter, although no execu- tion may have issued on such judgment or decree ; and such payment of money shall be good and available to the party making the same. 128. The clerk, to whom money shall be paid as aforesaid, Clerk to pay it shall pay the same to the party entitled to receive it, under '°"'fPiir'-\'^°- the same rules and penalties, as if the money had been paid mX'uf: ^' "' into his office by virtue of an execution. 129. The supreme and other courts ordering a judicial sale, Speedv coiiec- or havmg possession of the bonds which may have been taken t™ of P™- onsuch sale, may, on motion, after ten days notice thereof in 'JtuaiLXy' writmg, enter judgment, as soon as the money may become ™o"°n- ' due, against the debtors or any of them, unless, for good cause shown, the court shall direct some other mode of collection. 130. No judge, in delivering a charge to the petit jury, shall Jiuke, how to give an opinion whether a fact is fully, or sufficiently proved, ch"r 'e' t!5'the such matter being the true office and province of the jury; but j'"T--R- s. c. he shall state, in a full and correct manner, the evidence given ^^' '' ^^'^• in the case, and declare and explain the law arising thereon. 131. The people, called Quakers, may wear their hats, in Quakers may courts of judicature as elsewhere, according to the custom of couTt-R's c their sect. 3i, s. 137. Sect. 25. 2 Hawks, 211. _ Sect. ar. Vemie : suit for penally, 3 Ire. 9 ; parties both foretqners. Bus. 250 : on oM- cial bond, 2 Ire. 209. Plea to jurisdiction, 3 Ire. 543. -' ^ ' ' M Sect. 38. State may sue in antj co., 7 Ire. 48. Principal less than SlOO, with interest over, Sh-e.m, ipev.358. Too notes together, i he. 43. Liquidated account what, 7 Ire. 14d, 5 Ire. 231. Objection how taken, 5 Ire. 231, 4 lb. 161, 3 Mur. 39 3 Ire 9 _^^Sect. 39. 1 Dev. 171; 2 D. & B. 491; 3 lb. 21. Suit vs. several defendants, 2 Ii-e. Sect. 40. What bond covers, 3 Dev. 57. Suit when dismissed, 2 D. & B. 107. Further se- curity, 1 Jones, 373. Sect. 42. 8 Ire. 184. Sect. 4.3. /n forma paup. 7 Ire. 191, 11 lb. 22, 2 Dev. 411, Bus. Eq. 139, 1 Jones, 534. Sect. 45. 13 Ire. 43. > i i > Sect. 46. 4 Dev. 584. Sect. 47. 2 D. & B. 107. Sect. 54. 1 Jones, 122. Sect. 57. (1.) declaration, 5 Ire. 378, 1 Jones, 495 ; (10.) 2 Hay. 15; (12.) 1 D. & B. Sect. 60. Witness: nour-resident, 6 Ire. 76; unable to attend., 3 Ire. 11; summoned to two courts at same time, Bus. 478. Sect. 63. Deposition: when received, temporary absence, 13 Ire. 13; sickness 4 Dev 240. Notice : time of, 10 Ire. 284 ; form of, 11 Ire. 576, 1 Hay. 423, 2 Car. L. E. 471, 4 Ire. Eq. 427; taken on Sunday, 3 Ire. 307. Irregularity, 1 Hay. 358, lb. 359 lb. 381 Tay. 10, 2 Hay. 290, Conf. B. 463, 3 Hawks, 205, 1 Dev. 483, 4 lb. 166; when waived, 1 Hay. 105; how taken, 1 Dev. 372, 8 Hawks, 205; when, returnable, 2 D. & B. 291 Sect. 71. 1 Mur. 188. Sect. 73. 3 Hawks, 318; 11 Ire. 22. Sect. 74. 11 Ire. 55. Sect. 75. Cbsts : judgment on one count, 1 ,Iones, 623, 7 Ire. Ill ; one of several deft's acquitted, 1 Jones, 225, lb. 487, 1 Car. L. R. 515. Party's omn costs, 1 Dev. 146, 4 Ire. 131. Judgment quando, 1 Dev. 228, 1 Mur. 502. Infant, 1 Dev. 431. Mandamus, 1 D. & B.406. W absent witness, N. C. T. R. 265 ; executors, 4 Dev. 581. Persons not regular parties, 1 U. & B. 173. On abatement by death, 1 Dev. 99. Arrest of judgment,^ Dev. 3S6. When deft s sever in pleas, 2 Ire. 66. Peace warrant, 1 Jones, 550. Sect. 76. 2 Ire. 72. Sect. 77. Set-o^ff: what, 6 Ire. 22, lib. 401, lb. 399, 7 lb. 256, 4 Dev. 92; between whom, 6 Ire. 338; assignees, 11 Ire. 505, lb. 331, 13 Ire. 75, Bus. 40, 2 D. & B. 283, 4 Dev.. 619; a(/mi«'r t'. arfmm'r, 3 Ire. 268. 16* 186 COURTS OF EQUITY. [Chap. 32 Sect. 82. 13 Tro. 1S3; lb. 165; Bus. 206: 3 Ire- 381. Sf.ct. 90. Fui-m (fjwigmcnt onptml bond, 13 Ire. 212. Sect. 94. 1 Ire. 332. Sect. 99. 11 Ire. 391. Iect' m' 1 "e «!;T6. & B. 9; 4 Ire. 629; 2 D. «c B. 138. VM j,^gmenU 3 Dev. 160 1 lb ISV, ID. 1 B. Eq. 568, 4 Hawks, 283. Wh.n jud.jm.nt .nlendcd, 4 Dev. 295. Sect. 105. 's Ire. 480; 13 lb. 112. Sect. 109. 7 Ire. 387 ; 2 Jones, 03. Skct lis" "I'ev 387'; 4 lb. 305 ; 6 Ire. 98. Form of order, 8 Ire. 195. Iect "i8: 1 D?& B. 377. Form of transcript, 8 Ire. 344 ; 6 lb 236 Sect. 121. Process directed to a slieriff who is ajparti/, void, 13 Ire. 2o. Sfct 124. 8 Ire. Eq. 208. „ Sect: 125 13 Ire. 483; 1 D. & B. 44; 1 Ire.. 216; lb. 389. ,,,.,, ^ & B 390 Sect. 130. 7 Ire. 27; 13 lb. 404. Jf m itstimony, 2 Dev. 415, lb. 4o2, 2 D. i, B. 390. CHAPTER 32, COURTS OF EQUITY. Section 1. Court of equity established. Powers of. 2. Style of the court. 3. Kules of court. Rule 1. Plaintiff may file his bill at any time. Penalty of subpoena. Capias when to issue. Form of writ. Proviso as to executors and others. Eule 2. Subpoena and copy of bill to he served ten days before court. Kule 3. If defendant fail to appear and answer, &c., bill taken as confessed. Further time allowed for cause. In all cases time may be enlarged for pleading. Kule 4. Publication six weeks for non- residents, and defendants not found. If defendant fail to appear, bill taken as confessed ; And court may de- cree. Provisos. (1.) Security to be given for return of property, in case defendant appeai-s and reverses decree: (2.) In case of satisfaction decreed out of sequestered property. (3.) If defendant appear may answer bill on terms. Within what time to appear; (4.) Or decree shall be confirmed. (5.) What to be done if suit has been removed to supreme court. (C.) No decree against non-resident, unless cause of suit arose, or prop- erty in question be, iu this State. Kule 6. Cause set for hearing within two terms after replication. Section Kule 6. All evidence to be in writing. Clerk and master, commissioner to take depositions. Kule 7. Answers, &c., taken by judge, or by magistrate on commission. Eule 8. Injunction, sequestration, and ne exeat may issue. Rule 9. Issues of fact, when tried by jury. Rule 10. Costs at discretion of court. Except, &c. Rule 11. Further security may be re- quired of defendant. Rule 12. Decrees, &;c., executed by at- tachment, or otherwise. Rule 13. matter arising after issue pleaded puis darrein. Rule 14. Venue of suits in equity. 4. Executions to issue and bind, as at law 6. Decree for costs against plaintiff ana his surety. 6. Plaintiff dying, his representative may become party. 7. Defendant dying, his representative] may become party. 8. Answer of deceased defendant to bo the answer of his representative, when. 9. Proceedings, when further answer is required of representative. 10. If he will not answer or disclaim, bill to be taken as confessed, &c. 11. Suit, in certain cases, revived by defendant against codefendant's rep- resentatives. 12. Proceedings in such case. Chap. 32.] COURTS OF EQUITY. 187 Section 13. Proceedings enrolled when, and what part of them. 14. Injunction not to issue for a greater sum than sworn to, nor without se- curity. 15. Nor but within four months after judgment, except, &c. 16. Money deposited on obtaining injunc- tion, paid over on security. 17. Injunction dissolved, judgment ren- dered on bond. Damages uncertain, how ascertained. 18. Injunction against judgment of the State, when to issue. 19. Infant and non compos defendants, being non-residents, to have a guar- dian. Allowed three years after de- cree, to appear. Section 20. Causes removed to supreme court, when. Parol evidence not to be re- ceived in supreme court, except, &c. 21. Further provision for removal of equi- ty causes. 22. Bills of review and petitions to re- hear brought in five years after decree. Saving for infants and others. 23. Clerk and master may convey title, in all cases of sale decreed. 24. Decree in certain cases, to be a con- veyance of title. 25. Decree regarded as a deed. 26. Copy from register's office evidence. 27. How decree registered. 1. Each superior court of law shall also be and act as a court of equity for the same county, and possess all the powers and authorities within the same, that the court of chancery, which was formerly held in this State under the colonial gov- ernment, used and exercised, and that are properly and right- fully incident to such a court, agreeable to the laws and usages now in force and practice. 2. Such court, in all equity proceedings, shall be styled and called the court of equity for the county in which it is held. 3. The rules and methods of proceeding in said court shall be as follows, to wit : — Rule 1. — The plaintiff may file his bill in the clerk's office at any time, and thereupon the clerk shall issue to any county ill the State where the defendants or any of them reside, the usual writ of subpojna in chancery for the defendant to ap- pear, &c., upon pain of an attacJiment issuing against his person, and such other process of contempt, as the court shall award. And when the plaintiff shall specially state his debt or dam- ages and inake oath thereto, before any judge in the State, or before the clerk and master, the clerk shall issue, with the sub- poena, a writ directed to the sheriff of the county, where the defendant is supposed to reside, as follows, to wit: — The State of North Carolina, to the sheriff of county, greeting. You are hereby commanded to take the body of , late of your county, (if to be found in your county,) and him safely keep, so that you have him before the judge of the court of equity for the county of on ne.\t, or till he shall give you good and sufficient security in the sum of dollars, (which sum is hereby directed to be double the dam- ages suggested on oath in the bill,) to appear and answer at the said court, on the day aforesaid, to a bill in equity filed against him by : And this you shall in nowise omit at your peril. Witness clerk and master of the said Courts of equi- ty est.ablished. Powers of. — R. S. c. 32, s. 1. Style of the court. — R. S. c. 32, s. 2. Rules of court- Plaintiff may file his bill at any time. Penalty of sub poena. Capias when to issue. 188 COURTS OF EQUITY. [ChAP. 32. court, at office, the day of and in the year of the independence of the State. Proviso as to Provided, That such writ shall not issue, except by special executorsand Q^jg^ ^f Q,^g of the judges of the State, against any executor, c^^'r^i- ' administrator, or heir at law, who is sued as such. Subpo-na and Rule 2.— At the time of serving the subpoena, a copy of the copy of bill to jjjjj ^\^^iy jjg delivered to the defendant, and such service and days brfnrr delivery shall be ten days before the appearance term, other- coirt— R. S. ,„:^g ^jjg defendant shall not be bound to appear until the suc- c. 32, s. 4. " , . ceeding term. If defendant Rulc 3. — If, on due service as aforesaid, or in the manner fail to appear provided by publication, the defendant shall not appear and &c, wuTaken answer, plead or demur, agreeable to the practice in chancery, as confessed. ^^^ ^^^^^^ ^f ^.^^^^ tl^g bjH shall be taken as confessed, and ap- Furthertime pointed to be heard, ex parte, at the ensuing term. Provided, t^t^"' hoivever, that if the defendant, at the next term, shall offer sufficient excuse to the court for such default, the order shall be discharged, and he may be admitted then to plead, an- In all cases g^^,e,. or demur; and in all cases such time shall be allowed, 'e"/fo,' for the pleadings on both sides, and such day appointed for the pleadfng.-R. hearing, as the court shall direct. Pubiic'a'tLtsix Rule 4. — If at the time of filing the bill, any defendaiit ■weeks for non- g^aH be or afterwards and before service shall become, a resi- dS-mls"not dent of another State or country, or shall for any cause be so to be found. absent from his usual place of abode, that process cannot be personally served on him, and the same shall appear to the court, or be proved by affidavit before the clerk and master, then notice of the filing of the bill, published in some Gazette printed in the State and in other Gazettes where the court may so direct, for six weeks, (or for any longer time when the court may so order,) shall be deemed good service on the defendant; and, on proof of such publication, the court may Ifdeft.faiito proceed as if process had been personally served on him, and tE'as'!!- he had made default in his appearance, and may order the bill fe^sed. to be taken as confessed, and make decree thereupon as shall de"crer"""'^ be deemed just; and may thereupon issue process to compel the performance of the decree, either by execution, as herein- after provided, to satisfy the demand of the plaintifi ; or by causing the possession of the estate and effects demanded by the bill to be delivered to the plaintiff, or otherwise as the nature of the case may require. Provided, nevertheless : — Provisos First, that when the defendant shall reside out of the State 1. Security to- at the time of filing the bill, and shall not actually appear and tol'ofproprr: defend, the plaintiff, before executing the decree shall give suf- ty, in case tlcft. flcient security in such sum as the court shall think proper, to vS''decr''ee'' abide such order, touching the restitution of the estate or effects, as the court shall tliink proper to make concerning the same, upon the defendant's appearing and petitioning to have the cause reheard, and paying to tiie plaintiff such costs as the court shall order. 2. In case of Secondly, upon the like security being given, the court, Batisfactiou de- Chap. 32.] courts of equity. 189 when a sequestration shall have issued, may order the decree creed out of to be satisfied out of the estate and effects sequestered ; but i f ^'J.'^l'Je' j?'''^ such security shall not be given, the property sequestered shall '""'"^' ^' remain under the direction of the court, to abide its further order. Thirdly, if any such non-resident defendant as last afore- pj,"'!jj; X said, against whom such decree shall have been made, or his swerbiiio'n representative, shall afterwards appear and petition to be '"'"^" heard, he shall be permitted to answer the plaintiff's bill, upon paying, or securing to be paid, such costs as the court shall adjudge ; and the suit shall proceed in like manner, as if such defendant had appeared in due season, and no decree had been made. Provided, that the defendant or his representatives shall so '^yit'i'n what appear, within one year after a written notice of the decree ""'' '""''P''"" shall have been given to him or them; and within five years after the making of the decree, when such notice shall not be given. Fourthly, if such defendant or his representatives shall not ^- Or decree to appear within the times respectively above mentioned, the ''" '=™^'™'''^- court shall then, by order, confirm the decree against the defendant, and against all persons claiming under him, by vir- tue of any act done subsequent to the commencement of the suit, and may make such further order in the premises as shall be just and reasonable. Fifthly, if the suit in which such non-resident person may 5- What to be be a defendant shall be removed to the supreme court, and b™,' remoleT the decree be made in that court, then, upon his petition '» supreme to be heard, the record, or a transcript thereof, shall be re- "'""''■ moved back to the original court, that the case may be pre- pared for hearing, as is provided when the record has never been removed; and when the case may be set for hear- ing, it shall be removed to the supreme court, which shall make such decree therein, as if no decree had before been made. Sixthly, provided further, that this chapter shall not be con- 6. No decree strued to make good any proceedings against a defendant, "S^'jist non- residing, at the commencement thereof, without the State ; [essr&c^^E" S. unless the ground or cause of action, or the transaction on '''• ^^' '^^ *• which the bill is brought took place, or the property in contro- versy may be, within the State. Rvle 5. — "Upon issue joined by replication, the parties shall Cause set for prepare the cause to be set for hearing at the second term i'f-^"ng "'thin thereafter, unless the court, for good cause, shall enlarge the replicatiiu?"^' time. Rvle 6. — The testimony of all witnesses shall be reduced ah evidence to to writing ; and depositions in equity shall be taken under the c°.-indm.*com'r same rules as depositions at law : and every clerk and master •» '•■^^•^ deposu shall be, ex officio, a commissioner, to take depositions to be 32"s7.-m2' read in any suit in his court. c.so. ' Rule 7. — Commissions to take the plea, answer, or demur- Answers, &c. rer of a defendant may issue to any justice of the peace, who, Ir by ma^s-^"' 190 COURTS OF EQUITY. [ChAP. 32. tmteoncom- for that purpose, shall have the power of a commissioner in nfri^-"- chancery; and any judge of the superior or sapreme court " ■ may grant such commission, or may hmiself take the plea, answer, or demurrer of the defendant, iniunction se- RjiU 8. - The judges of the courts of equity, and likewise qSS, any of the judges of the supreme court, may grant wri s of XIs^^Ie. injunction, of sequestration, and of ne exeat, subject still to s. J.32,s.4. the control of the court; but a ne exeat shall not issue where sufficient bail has been taken for the party's appearance. Issues of fact, Rule 9. - The court may direct that issues of fact shall be Tvhen tried by ^^^^ ^y ^ jury, whenever it shall appear necessary, according io^sl^'- ^' °" to the rules and practice heretofore observed in the State. Costs «tdiscre- i^wfc 10. — Costs incurred in the court shall be paid by tiou of court. p-j.j^gj party, as the court may direct, as well in bills ol ais- covery as in all other cases, any present usage to the contrary Except &c- notwithstanding. But where the plaintiff shall dismiss his E S "c-'Bts.*. bill, or it shall be dismissed by the court for want of Ffecu- -1848, c. 12. ^.^^^^ j^g g^^j^ p^y ^Q ^l^g defendant full costs to be taxed by the Further securi- "" EwTe 11.— The court may, at any time pending a suit, re- ty may be re- yjj.g further security from the defendant. '^-R% c af Rule 12. — The court may execute its orders, sentences, and «-4' , ' decrees by attachment, and all such other process and means Se'dby'at- as have been usuaUy exercised by the courts of equity m the tachment, or g|;ate Tclt^n^' Rule 13. - Whenever any matter shall arise after the cause Matter 'arising ^^^^^ |^j^yg begn put to Issue, which would have been proper to t^^^^u be pleaded if the matter had arisen before issue, the same may darrein. ^e thereafter pleaded as in actions at law, and under the same Venue of suits ''' Sm/g 14. — Suits may be instituted in any county where in equity. ^f ^he parties may reside ; or in the county wherein the property is situate, if it be land, or of a fixed and local nature ; if instituted elsewhere, they may be abated on plea. Executions to 4. Where decrees shall be made for any sum of rnoney, or issue and bind, £ ^^g^s of suit, executlou may issue thereon against the par- It c!"' ty's body, or against his goods and chattels, lands and tene- ments to satisfy such decree and costs, in the same manner as execution at law; and lands and tenements, goods and chat- tels shall be bound by such decree and execution, in the same manner as they are by judgments and executions at law. Decree for 5. Whenever a decree shall pass against the plamtitt lor Th,Xnd costs of suit, the same, on motion of the defendant, may be Ky.-R s. entered against the plaintiff's surety for the prosecution of ''•^^''•'- hiBsuit. . ., c- fi- u;ii rrffdyinr:, his 6. When a complainant shall die after the filing of his bill, representative ujg j^^j^j representative may carry on the suit,7»-oi'((/cf/ appU- PvlTs. c. cation^'be made to the court by such representative, at or before 82, s. 9. the second term after the decease of such party. Dertdyin;:,his 7. When any defendant shall die after service of the sub- representativo „^ ^^^^ ^opy of the bill, the plaintiff may suggest his death, CHxVP. 32.] COURTS OF EQUITY. 19;[ and issue a scire facias against his legal representatives, in m.v boc™,e tlie same manner and under the same rules as are used in suits P.'o-V— K- s. c. at law ; and on service of the writ on such representatives, the ^^' '" *' suit shall stand revived. 8. If they shall not appear and answer or disclaim, after Answer of de- bemg duly served with the scire facias, the answer of the de- '^'^^''^d deft an- ceased party shaU be deemed the answer of his representa- scn'tn^ve?'''" tive. ^ . when. 9. If the deceased party shall have answered, and the com- ProceedinRs, plamant shall desu-e to obtain a further answer to the bill from '"''"" '"'■""^'" his representative, the matters whereof further ans^^er is re- quiredXp-s. quired shall be filed with the master, and a copy thereof shall be issued with the scire facias and served on the representa- tive. ^ 10. In such case, if the representative shall not appear and ifhe win not put in such further answer, or disclaim at the next term, after ■'l''^."''"- °'; dis being duly served with a copy of such matters, the said mat- tS«;L- ters shall be taken as confessed, or an answer may be com- ■^''''''"'' '^''■ pelled by attachment or otherwise. 11. If a defendant shall die, and the cause of action does Suit, in certain not survive, and the complainant shall neglect for two terms P"«;SJ^^'^-e■ without se- bond with sufficient security, before the master of the court ct'-'li' ^• whence the injunction issues, for the payment into oflice, upon ' ' the dissolution of the injunction, of the sum complained of, and all costs. ' 10. And whereas, injunctions are often applied for, for mere N delay, and the facility of obtaining them sometimes enables!" dehors to defeat creditors of their just claims; il is enacted, that no injunction to stay an execution shall issue but within four months after the judgment at law is obtained, unless the party applying therefor shall, besides the bond required in the preceding section, deposit, as a further security, in the office of ■\«r but ■ss&c— I!. . 32, s. 12. ^Q2 COURTS OF EQUITY. [ChAP. 32. the master, the amount of such judgment and costs ; or unless shdtap, car from the oath of the complamant, that such ap- plicat on' arbcen delayed in consequence of the fraud or fe^e omles of the plaintiff at law, practised or made at the time Tor after obtaining judgment; or that the complamant was out ot lie State at "the time of entering up judgment, o that applica on could.not be made within the time aforesaid Mone, .epcu- '^6 If, upon obtaining any injunction, ^ -^ --i;^^--^'^; edonobtaimng , -x : ^fy^pg any money whose collection l^ enjoined, tne injunction, depo^it HI oinc| > J ^ ^ ^. ^^ ^^e plaintiff at law, p.aoveronse. same --y b; -^-1 o.d.1^0^^ ^^^^ ^^^^^ . ^ ^ penalty double le "a'o int' with a^le sureties, conditioned that he will pay to tlie master kid money, or any part thereof, according to the decree that may be made in relation thereto. ininncn .s- '"l7 When a^i injunction shall be dissolved judgmenshal soiveJJudg't . .-endered on the bond given on obtaining the same, in xne ^-' - Lrmanner as on appeal bonds ; except ^„'f ^r;;;^:;;;;^:: Damiigosun- ,Kp rliraao-es secured by the bond shall be ot an uncertain na r/rn« te rsirdl L refen-Zd to the "-^ter (if they e.i^st u. ac- S.c.32,s.i3. '^) to report their amount; or shall be inqmica oi oy a [uTon an Lue submitted by the court, and tried upon e te ti nony filed in the cause, and such o her evidence as the mi "may offer; and on the confirmation of the report, or Im of the jui'v, the court shall render judgment on the • '°1S 'NfrnmTclim," m,"f other process in equity, praying S^-^.'t the sta^of ^^S;in issued on til; part of the State agamst ^^tt^. "^Idl, shall be granted until the -"^i; --;i^ ^^^ ^^ ^^^ -K.S.C.32, ^ ^ receipt from the treasurer, or other P^i^'f o"'^" •;" '■"■ fS/ed to - ve the same, showing the payment of all such part of the fudgment as, by his bill of complaint, he shall not on oath declare to be unjust. ,„^.ana„«.°"m Where any de^^if iit is an i"^^^' ^ J^--- -- oomposdefsbe- ^^ ,esides out of the State, having no guardian re^'^"'s S=e Sh" the same, the court shall appoint -^^;^J^^^. a guardian. ^„..^„„ ^q defend h s interest in the suit. IioiuUct, ncienin ^^^!l E^ thit such infant or person non co-posn^^^ny nn^ Lc to appear. -^ j,^ ^]^,^^ ^ears after decree made, appear and pet tion to h r?^'-^-''' ca d vv ith re^spect to the matter of the decree ; and then the S shall proceed in like manner, as if such person had aj^- nearech due season, and no decree had been made. And if Ls i have been Removed to the supren^e court, the sam p oc e 111 gs shall be had as provided in the fifth proviso of the fourth rule. Causes re- moved to su- '" oo Aw case pending in a court of equity, and set for hear- n,ovea .o su- -^^^^^ ,et for hciring on a plea or dc murrey, may, by .m er o l,ren.e court, 1^^^' » removed to the supreme court lor hearing, upon ?i^-ev.^ce^^^'^; appearing by alfidavit or otherwjs.- showu^ r^L^^rln^that such removal is required for l.'-P--,;'!, ,/,;;; cx »" the day after, in case the thirtieth day be Sunday. And the August™''"^ "'' term in Morganton shall commence on the first Monday in To^'? ''" ^usi- August, The court shall sit at each term until all the busi- Namemids%ie ness on the docket shall be determined, or continued on good to™"'''] cause shown. The court shall bear the name and style of journedVno " The Supreme Court of North Carolina," and shall be •iuJ^^/g,™''' deemed a court of record; and the papers and records belong- w'eek.— RS.c. ing to the clerk's office thereof, shall be constantly kept withm f^'j';. \^l^f' the city of Raleigh, or in the town of Morganton. Provided, 2S,2i. hoKWfcr, that in case no one of the judges shall attend the term during the first week thereof, at the end of that time, the court shall stand adjourned till the next term, and the causes on the docket be continued. 3. The judges, before they act as such, shall, before the Judges to t:ike 296 COURT, SUPREME. [Chap. 33. and snbscribe governor or some judicial officer, take and subscribe the oaths oaths to be appointed for the qualification of public officers, and also an sit 'I'Ts. oath of office, which shall be certified by the officer taking the same, and delivered to the secretary of State, to be safely kept. Two, in case of 4. When any one of the judges is disabled from attending sickness, &c. to ^^^^ sickness or other inevitable cause, two of the judges shall S?o.3rs'.T 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 and purposes as if all the judges of the court were present. Shall appoint a 5. The judges shall appoint one of their number to preside, chief justice, ^ho shall thenceforth be styled Chief Justice of the bupreme Court of North Carolina; and they and each of them shall Their powers have, use, cxercise, and enjoy the same powers and authorities, andautiiori- rights, privileges, and preeminences, in every respect, as are ties.-R. S. c. j^«^^ ^,^^^ ^gg^^ exercised, and enjoyed by the judges respec- ' tively of the superior courts of law and equity, except that no judo-e of the supreme court shall be authorized to hold a supw-ior court; and, for the purpose of caiTying such powers and authorities into execution, each of the judges of the supreme court may make any fiat, order, or issue any process, and perform any act which a judge of the superior court may do. . Jurisdiction 6. The court shall have power to hear and determme all and power of questions at law, brought before it by appeal or otherwise ''°""' from a superior court of law, and to hear and determine all cases in equity brought before it by appeal or removal from a To render court of equity ; and in every case, the court may render such judK't on view sentence, judgment, and decree, as, on inspection of the whole of the record. ^^^^^^^ -^ ^j^^H appear to them ought in law to be rendered thereon : and shall have original and exclusive jurisdiction in repealing letters patent, and shall also have power to issue writs of certiorari, scire facias, habeas corpus, mandamus, and whenceTsued, all other Writs which may be proper and necessary for the and where re- gxercisc of its jurisdiction, and agreeable to the principles and turnabie. ^g^ges of law ; and it may, at its discretion, make the writs of execution which it may issue, returnable either to the said court, or to the superior court from which the cause may have fimu iudg't^to been removed. Provided, hotvevcr, that, when an execution be certified to gj^j^jj ^^, made returnable as last mentioned, a certificate of the that court. ^^^^^ judgment of the supreme court shall always be trans- mitted to the superior court aforesaid, and there be recorded. In crim'i cases And provided fiirlker, that the said superior court may enforce cdio courf ^c". obedience to the execution, and in the event of its not being io«'- executed, may issue new or further execution or process thereon, in the same manner as though the first execution had issued from (lie said superior court. And provided further, How that conrt |i^.^(^ j,, fiiininal cases, the decision of the supreme court shall ^Ilu.'rc^t be certified to the superior court, from which the case was 8-«- ' transmitted, which superior court shall proceed to judgment and sentence, agreeablt! to the decision of the supreme court and the laws of the State. Chap. 33.] court, supreme. 197 7. The supreme court shall have original cognizance, when- To have origi- ever it shall be deemed necessary, on the part of the State, to ;'»iJu'i*;i''^''on ... , ,. , .•',', '. to repeal m-aiita institute proceedings to vacate and repeal any grant or other or ictteia pii- letters patent for fraud, false suggestions, or other cause ; and 42"s~33' ^' "' such proceedings shall be by bill in equity, or information in the nature of a bill in equity, exhibited in the name of the attorney-general on behalf of the State ; and the proceedings thereupon shall be according to the course and practice in equity. 8. When, upon the hearing of such cause, it shall be aseer- What decree tained that such grant or letters patent have been obtained by ZlkTZ^ Zll traud or false suggestion, or against law in any other respect, ease.— E. s. c. the court shall declare the same repealed, rescinded, and *^' ''" ^*' annulled ; and also take such order, as the court shall deem right and proper, for cancelling the enrolment of the same in the office of the secretary of State. 9. The judges shall appoint a clerk for the court held in the Shall appoint a city of Raleigh, and one also for the court held in the town of ^.|f * ^"""J.^^^ Morganton, who shall hold, each one, his office for four years ; pia^e of s^el- but, before undertaking its duties, such clerk shall enter into H^'boiui and bond, with sufficient security, payable to the State of North oaths.""' Carolina, in the sum of fifteen thousand dollars, conditioned for the faithful discharge of his duties, and for the safe-keep- ing of all records committed to his custody, which bond shall be lodged with the secretary of State ; and he shall also, be- fore said judges, or one of them, take the oaths which are pre- scribed for clerks of the superior court. And the clerk of the -miere office to court, directed to be held in the city of Raleigh, shall keep his bekept.— R.s. office in said city in one of the rooms of the capitol assigned is«'c'|s~ 3 to the supreme court ; and the clerk of the court held at Mor- ' " ' " ganton shall keep his office at Morganton. 10. All causes whatsoever, carried into the supreme court Causes from by appeeil, removal, or otherwise, from a superior court of law c.'jHedTo'Mor- or a court of equity of the counties of Surry, Yadkin, Davie, ganton. Rowan, Cabarrus, Mecklenburg, and of the counties lying westward of the same, shall be brought into the supreme court at Morganton for determination. Provided, however, that all rieJ^tS criminal cases carried from the superior courts of any of said criminal cases. counties, after the second Thursday of August and before the thirtieth day of December, when the defendants or any one of them shall be coniined in jail, pending the appeal, shall be brought to the supreme court at Raleigh for determination. And provided also, that if either party to any cause which may ExcepHon .also be removed or carried by appeal or otherwise to the supreme ji^ 'on,e or'*^"* court, froni any of the said counties of Surry, Yadkin, Davie, thJse counties. Rowan, Cabarrus, or Mecklenburg, or if both parties in any cause west of the same shall prefer it, the said cause shall be brought into the supreme court at Raleigh, to be there deter- mined, and the presiding judge shall so order it. Causes of Court may a,i- every kind carried to the supreme court by appeal, removal, or j™™ j™';;^;* otherwise from any other countv, shall be brought to the toTto ii-a'eigii 17' - 293 COURT, suPREstE. [Chap. 33. and rfce «e™. court at Ralcigh, for determination ; but the court may, in — I846,c.28, -^^ (li-^cietion, adjourn causes in law and equity from Mor- ''^' ganton to Raleigh, and from Raleigh to Morganton, for de- termination. Bills, &c. nnd H. In cases in equity in said court, the clerlvs shall record »*3i;%°^^all bills, answers, pleas, replications, and demurrers, with all de- Sie court ;imii crees, made therein, whether interlocutory or hnal, together cirde/l-K r with the Opinions of the judges of said court; and they shaU c.33,s'8. ■ ■ only record olhcr parts of the proceedings in equity cases, when, for sufficient reasons, it may be specially ordered by the court. Provided, that no account, deposition, or commission to take the same shall be ordered to be recorded, except at the expense of the party requiring it to be done. Clerk's pay for 12. In estimating the allowance to the clerk, for making the ^RTc'sr'-. record as directe,d, the judges shall not exceed the sum of thirty 9. ' ' ' ''" cents for each page recorded. Judges to pre- 13 The iudtres of the supreme court shall prescribe and prt'ticetr 1 establish, from time to time, rules of practice for ihe superior perior courts, courts, which the clerk shall certify to the judges ot the supe- _R. S.C. 33, s. ^_.^^. ^^^^.^^^ ^^,^^ _^l^,_^^ ^^^gg ^l^g g^j^^g to be entered on the rec- ords of said courts. On appeal from j^4 When an appeal shall be taken to the supreme court ]ud'gttc.7no from" any interlocutory judgment at law of a superior court, judgment to be ^j. ^^y interlocutory order or decree of any court ot equity, the Option with supreme court shall not enter any judgment reversing, affirm- instructions to j^^ qj. modifying the judgment, order, or decree, so appealed L'urrbeiot!- from, but shall cause their opinion to be certified to the court K. S. c. 33, s. ijelow, with instructions to proceed upon such order, judgmerit, ^^' or decree, or to reverse or modify the same, according to said opinion, and the court below shall enter upon its records the opinion at length, and proceed in the cause according to the instructions. Exhibits in 15 Exhibits or other documents relative to cases m equity 3i7d"there pending in the supreme court, may be proved by the parol tes- by witnesses, timoiiy of witnesses to be examined in said court, m the same s^ucifwunesses. manner and under the same rules as such exhibits or docu- — R.B.C. 33,s. ijients maybe proved in the superior court; and suitors in ^^" 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 lor travel- ling, ferriage, and attendance, as witnesses in the superior court. Provided, that witnesses attending the supreme court shall be taxed in the bill of costs, and paid by the party on whose behalf they may be summoned. .Judges to de- 16. The judges shall deliver their opinions or judgments in livertheiropin-^^jti,^ yi,jj ,l,"e rcasons at full length upon which they are Sclt"'"!-'- founded; and the clerk shall make no entry upon the records decision nor ^f ^hc court, that any cause depending therein is decided, nor Zedlmollin! give to any person a eertilicate of such decision, nor issue ex- ion of court is p^^fn,,! for Uic costs iu such suit, until after the opinion ot the cltr-R-'s. c. court shall have been delivered publicly in open court, stating 33, 6. 13. Chap. 33.] court, supreme. 199 at length the ground and argument for such opinion, and until a written copy of the same opinion shall have been delivered to the clerk; which shall afterwards be filed among the records of the court and published in the reports of the decisions made by the court. 17. The supreme court shall have power to amend any pro- Cov.h may a- cess, pleading, or proceeding at law, either in form or sub- '"'.jf^r^P™- stance, for the purpose of furthering justice, on such terms as What'fmend- shall be deemed just, at any time before final judgment. And "Ifow S on like purpose and terms, said court shall have power, and it cause set^for shall be its duty, any practice heretofore to the contrary not- ^"""""s- withstanding, to allow all such amendments as, according to the practice of the court of chancery, may be made without settmg aside the order for hearing "the cause. And, on like M^iv remand a purpose and terms, it shall be the duty of the court when L^'dnSntt^ amendment may be needed, which, according to the course of iow. the court, is only allowable before the cause is set for hearing, to remand the same, on motion made in due time, to the intent that application to amend may be made in the court below. Also, to amend by making proper parties to any case in equity May amend by where the court may deem it necessary and proper for the pur- ""'|''"gP'^ poses of justice, and on such terms as the court may prescribe. "^'" And also, whenever it shall appear necessary for the purposes May allow fur- ol justice, to allow and direct the taking of further testimony "'" t<=^'™ony in any case in equity which may be pending in said court, R.s' 'fls,'! under such rules as may be prescribed. 14, c.4,s. i,io. 18. Petitions to rehear any final decree made in the supreme men petition court, may be filed at the terra when the same is passed or *° '"^'•^=^'' ^'"^ within twenty days after the commencement of the next sue- meT' "''^''' ceeding term ; provided, that nothing herein contained shall prevent the usual proceedings for enforcing the decree. 19. Bills of review and writs of error in civil cases, for any Bills of review error apparent in the final decree or judgment of the supreme errorT^Lft court, maybe brought in that court within two years after within two" such decree or judgment shall be recorded or enrolled. ■''"'• 20. Suits and appeals pending in the supreme court, may Suits may be be dismissed on failure to prosecute the same, after a rule ob- jl'^i^'^^ed for tained for that purpose and served on the plaintiff or appellant ecmeTafte^'nT 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 prosecute his suit or appeal, the court shall, at the election of the adverse party, dismiss the suit or appeal at the costs of the plaintiff or appellant, or proceed to hear and determine it. 21. The clerks of the said court shall, immediately after the Cerfificates of rise ot each term thereof, ti-ansmit by some safe hand or bv '^'''=''-°"-' '™'*- maij to the clerks of the superior courts of law and courts oi'^lTl'rT equity, certificates ot the decisions of the supreme court in "«« "^ «»'"'f- cases sent from said courts; and thereupon the said clerks re- Kx-n for cost, spectively shall issue execution for the costs incurred in the '" f"'"T'"'' courts from which the cases were sent; and the clerk of the"t"i^f™m supreme court shaU issue execution for the costs incurred in """'^™'"f 200 COURT, SUPREME. [ChAP. 3o. that court, including all publications in newspapers made in the progress of the cause in that court, and by order of the same, and all postage of letters which concern the transfer of Clerk Wlin. Original papers. And if either of the clerics of the court, whose f>!4nty da"-f to dutV it shall be, shall fail for the space of twenty days to per- S"Se:\rL-form the duty herein enjoined of transmitting the said cemh- fdt sioo-R. cates of deciions, he shall forfeit and pay to the party or i842,t'i;l' 3: parties, in whose favor the supreme court shall have decided, one hundred dollars. „ ., , , f xl„ In atfy-genn-s 22. If the attorney-general should fail, at any term of the absence, court gunreme court, to attend to the business which by law is as- ^oS't signed him, the court may appoint some counseller learned in St.ate.-is46, ^he law to discharge- his duties during the term. KepJrti 'of de- 23. The j udges of the supreme court shall annually appoint cisions annual- ..„„„^ter of the decisions thereof, who, withm tive moiitns i,..ppo,nted. a^^iep^^ ^j^^^ ^^ ^^^,^ ^^^^^^^ ^l^^U p^.^p^^, f ,,, p,ess such decisions as the court may direct to be published and shall contract with some printer, to print at the expense of t he btate as many copies as may be needed, to be distributed by the Kcpon. how reporter", as follows : - One copy for the reporter ; one for each distributed.- / .[ ^,j£i„es of the state; one for the judge of the court ot ?6-«5l!'c!- the United States for the district of North Carolina; two to i6i.-iics. 1840 , denosited in the executive department; six copies m ttie -'''-'''■ public library ; one copy in the oilice of the clerk of the court of pleas and quarter-sessions in each county in the State one in the office of the clerk of the circuit court of the United States ; one in each of the supreme court libraries ; three copies in the library of the university ; one copy tor the library ol tiie supreme court of the United States at Washington; as many in the executive office, as will supply with one copy each State and territory of the United States, to be transmitted to the executive departments thereof. • x a; Marshal of 24. The judges of the court may annually appoint an otti- courtatRa- ^ ^ ^ j^d marshal of the supreme court, removable at ,e,gU,appo,nt- C . ^^^^^ ^^^.^^^ ^^^^^^^ ^^^^^^ ^^^ ^^^^^^ ^^^.^^^ i(^ SCSSIOU lU the city of Raleigh ; and, during its session in Morganton, the Sh-ff of Burke sheriff' of Buikc shall attend upon the court : scud marshal and to attend court sheriff' shall be entitled to receive each two dollars, per day, lor at Mor^mton. -" .,,f,-,nl it+onrlnnoe on the couit, to be paid by the -'--J ^:s:^:l::t f.^£;r rtie%ierk 'of tij resp^^uve ^^!!::t^\o^:v.l.^e the service is performed, which certihc..t.sh^l ^- ^- state the number of days of attendance, according to the direc- tion of the court. Skct. 6. MsdUtion: bill 0/ rrviuc, 1 Jonc« Kq. 10; % .on.nt, 1 Ire. 623. Pleadins, to be iiM, 3 Ire. 5tf.. SEcr. tl. Q'sts, 1 D. & n. 489. Chap. 34.] ckimes and punishments. 201 CHAPTER 34. CRQIES AND PUNISHMENTS. Section 1. Accessories before the fact, punishable as principals. 2. Murder, burglary, arson, and robbery on the highway. 3. Fighting a duel when one party is killed. 4. Castration with malice aforethought. 5. Rape. 6. Crime against nature. 7. Burning public buildings, 8. Brealcing out of dweUing-house in the night, burglary. 9. Killing a slave homicide. 10. Stealing slaves. Conveying away stolen slaves. Property in slaves, how laid. 11. Aiding slaves to escape from State. 12. Conveying free negroes from State with intent to sell. Selling free ne- groes in State. 13. Conveying free negroes within State with intent to sell them. 14. Malicious maiming. 15. Bigamy. 16. Circulating seditious publications among slaves and free negroes. 17. Endeavoring to excite insurrection among slaves or free negroes by words. 18. Servants embezzling their master's goods, &c. 19. Brealcing prison. 20. Stealing or robbery of b.ank-notes and other securities. 21. Stealing growing produce. 22. Benefit of clergy abolislied. 23. None to be p.ardoued of other offences by conviction and punishment. 24. Jlanslaughter, first ofl'ence. 25. Second ofl'ence. Prior conviction, how shown. 26. Distinction between petit larceny and grand larceny abolished. Punished as petit larceny. 27. Felonies not punished, by particular statutes, how punishable. 28. Concealing birth of a child. 29. Forfeiture for suicide abolished. 30. Burning bridges, and houses not de- positories of archives, &c. Attempt- ing to burn bridges, and certain houses, &c. Section 31. Stealing or obliterating proceedings and records of court. Not necessary to allege ownership or v.ilue, 32. Stealing, destroying, or concealing wills of living or deceased persons. 33. Buying and selling ofEces. 34. Briberj' of jurors. 35. Sheriif or other ofiicer suffering a criminal to escape. What necessary for State to prove, 36. Duty of tittoruey-general and sohci- tors in such escapes. 37. Breaking up or staying elections, 38. Public commissioners forbidden to become contractors, 39. Overseers of roads neglecting duty, 40. Bridges kept up by mill owners in certain cases, 41. Unlawful fences. 42. Trespassing on public land. Tres- passer removed by sheritf. 43. Vagrants. AiTested, recognized, and indicted. 44. Peddling without, or failing to show license, a misdemeanor, 45. Fornication and adultery, a misde- meanor. 46. Marrying a femsile under fifteen, with- out written consent of her father, a misdemeanor, 47. Maiming without malice, how punish- able. 48. Sending, accepting, or bearing chal- lenge to fight a duel, &o., a misde- meanor. 49. Perjury. 50. Subornation of perjury. 51. Perjury and subornation, in capital cases. 52. Perjured persons made infamous. 53. Accessories to felonies before the fact. When, where, and how tried. 54. Accessories to felonies after the fact. When, where, and how tried. 55. Accessories where principal is not at- tainted may be punished. 56. Pieceivcrs of stolen goods, &c., of any value. 67. Alteringmarksand mismarking beasts. 58. Holding out false lights on sea-coast. 59. Forgery. How punished. 202 CRIMES AND PUNISHMENTS. [Chap. 34. Section 60. Counterfeiting bank-notes, checks, public or corporation securities. 61. Passinpr, or attempting to pass, coun- terfeit notes. 62. Forging, issuing, or passing certifi- cates of stock. 63. Selling forged judgments, bonds, &c. 64. Counterfeiting foreign gold or silver coins. Passing, or attempting to pass, them. 65. Having in possession instruments for counterfeiting such coin. 66. Fraudulently connecting parts of sev- eral bank-notes, &c. 67. Cheating by false tokens. How pun- ished. 68. Fraudulent entries and statements by public treasurer. 69. Lotteries forbidden. How punished. 70. Sale of lottery tickets forbidden. 71. Faro tables prohibited. 72. Gaming tables of every kind pro- hibited. 73. Persons suffering gaming tables to be opened or kept on their premises, how punished. 74. Gaming tables to be destroyed; sher- iffs and others to do so with the power of the county. 75. Betting or playing at cards in ordi- narj', or retail-house, prohibited. 76. Keeper of ordinary and retail-house, suffering cards to be played on the premises, guilty of misdemeanor. 77. Money or property staked may be seized, 78. Penalty on persons opposing such seizure. 79. Billiard and backgammon tables ex- cepted. 60. Marriage of free negro with white person, forbidden. 81. Enticing away and harboring runaway slaves. 82. Teaching slaves to read or write, use of figures excepted. 83. Fire-arms and other weapons not to be sold or given to slaves. Proviso. 84. Trading with slaves on Sundays, orat uiglit, forbidden. 85. Buying or receiving from slaves, with- out written permission, forbidden. 86. .Unlawful sales to slaves. 87. Certain sales to slaves of spirituous liquors forbidden. 88. Presumptive evidence of unlawful trading with slaves. 69. Offence and punishment for unlawful trading with slaves. Section 90. Presumptive assent of principal to unlawful trading by his agent. 91. Forged licenses to slaves to trade. 92. Penalty of one hundred dollars, for unlawfully trading with slaves. 93. Entertaining slaves and free negroes, on vessels at certain times forbid- den. Punishmeut on slaves, &c. On whites. 94. Retailing spirituous liquors without license forbidden. 95. Hunting by fire light. 96. Accomplice in fire hunting, giving evi- dence against his fellow, discharged. 97. Wilful injury to wells, &c. of water. 98. Voting fraudulently at elections. 99. Maliciously obstructing raih-oads. When death doth not ensue. When death ensues. 100. Mahcious injuries to plank-roads, turn- pikes, and canals. Misdemeanor. How punished. 101. Wilful injuries to railroads and other improvements. Misdemeanor. Hovf punished. 102. Removing or defacing tombstones and monuments over the dead. 103. Destroying, defacing, or injuring cer- tain houses. Burning, injuring, or defacing churches, uninhabited, and outhouses. Burning, pulling down, or removing fences. 104. Wilfully killing or injuring live-stock, running at large. 105. Maliciously or wantonly killing stock in certain counties, punished as larceny. 106. Ton timber floated down Roanoke river to be marked, &c. Marks, &c. recorded, where. 107. Altering mark, or taking marked tim- ber with intent to steal, larceny. 108. Mark first recorded to hold. 109. Sales of liquor, traffic, and exhibitions near places of worship, forbidden, when. 110. Sending letters containing menacing demands for money; or threatening to accuse one of infamous crime to extort money. 111. Malicious injuries to real estate. 112. White women not to be branded or whipped. 113. Xegligcnt omission of returning offi- cers in election of governor and electors. 114. Wilful neglect of olTieers to perform tlicir duty in election of governor anil electors. Chap. 34.] crimes and punishments. 203 Sectiox 115. Ofl'enoes, jurisdiction of. Not piir- doued. 116. White persons playing at cards witli slave or free negro. 117. Contempt of court, what shall be. lis. Constables failing to execute process, Section- or making false i-eturn: acting as such without authority. 119. Officers failing to discharge their du- ties. 120. Misdemeanors by statute punished as at common law, unless otherwise directed. 1. Evert person shall suffer death who maybe an accessory Accessories be- before the fact to any oflbnce which now is, or hereafter may prulhabie 1. be created, the punishment whereof is or shall be death. principals.— R. 2. Every person who shall be convicted, according to due ^s.' ^*''' ^' ^' course of law, of any wilful murder of malice prepense, or ^iurder, bur- of any felonious burglary, or of any wilful burning of any S'cu'obbel^' on dwelling-house, or any part thereof, or any barn then having *l'«'''g''*^'y--- grain or corn in the same, or store, or warehouse, grist or saw- ^''■^■''■^^'^- ^■ mill house, or any building erected for the purpose of manu- facturing any article whatever, or of robbing any person in or near any public highway, shall suffer death. 3. It any person light a duel, in consequence of a challenge Fighting a du- sent or received, and either of the parties shall be killed, then ''' '!'""•" I'i the_ survivor, on conviction thereof, shall suffer death ; and all-Kf S. c. lii their aiders or abettors shall be considered accessories before '• ^• the fact. 4. If any person, of malice aforethought, shall unlawfully Castration with castrate any other person, or cut off, maim, or disfigure any J]';;;''^ ("2;;'p of the privy members of any person, with intent to murder, sl'cilsVs. 4.' maim, disfigure, disable, or render impotent such person, the person so offending shall sufier death. 5. If any person shall ravish and carnally know any female, Eape.— R. s. of the age of ten years or more, by force and against her will, '■ ^^' '' '^• or shall unlawfully and carnally know and abuse any female child under the age of ten years, he shall suffer death. 6. If any person shall commit the abominable and detest- Crime ag.ainst able crime against nature, with mankind or beast, he shall fl""'?'.," ^; suffer death. ' '■ "' 7. If any person shall wilfully or maliciously burn the Burning public State house, or any of the public offices of the State, or any s"e''of : T ^• court house, jail, arsenal, clerk's office, register's office, or any ""''■''''■'■ house belonging to any incorporated town in the State, or to any incorporated company whatever, in which are kept the archives, documents, or public papers of such town or corpo- ration, he shall suffer death. 8. If any person shall enter the dwelling-house of another, Breakinjoutof with intent to commit felony or other ofience, the punishment, ^n^henW™*" or any part of the punishment, of which said other ofience burgTarv' ' ' shall be infamous, or, being in such dwelling-house, shall com- mit any felony, or such other ofience, and .shall, in either case, break out ot the said dwelling-house in the night time, such person shall be deemed guilty of burglary. 9. The oflbnce of kiUing a slave' shall be homicide, and Killing a slave 204 CRIMES AND PUNISHMENTS. [CoAP. 34. homicide. -R. shall partake of the same degree of guilt, when accompanied S. c. 34, s. 9. ^n^ tijg lii^e circumstances, that homicide does at common law. Stealing slaves. 10. Every person who shall steal any slave with the intent that the owner, or any one having any interest in such slave, present or future, vested or contingent, legal or equitable, shall be deprived of the use and benefit of such slave, shall suffer Conveying death. And every person who, by violence, seduction, or awaystoiea other means, shall take and carry away any slave with the slaves. j.|_^ intent, shall be deemed and held, for every purpose what- ever, to have stolen such slave ; and may be so charged in Property in the bill of indictment preferred for the offence. And every slaves how laid, person who, knowing any slave to have been stolen as afore- rio.'-isigi**: said, shall, with like intent, convey away, or aid in conveying .35; 1852,0. 87. a^.^^,ay gaid glavc, shall suffer death. And in any indictment under this and the following section of this chapter, the prop- erty in the slave shall be well laid, if charged to be the prop- erty of the owner, or any one or more of the persons having such interest as aforesaid. Aiding slaves 11. If any person shall wilfully carry or convey any slave, to escape^from ^^^ property of another, without the consent of the owner, or ^34%. li'. ' the guardian of the owner, with the intent and for the pur- pose of enabling such slave to escape out of this State, from the service of his owner, or any one having an interest in such slave, present or future, vested or contingent, legal or equita- ble, or if any person shall wilfully conceal any slave, the prop- erty of another, with such intent and purpose, the person so offending shall suffer death. Conveying free 12. If any person shall unlawfully and wilfully entice, or stftTwuTin- carry or convey any free negro or free person of color out of tent to sell. ihe State, with the intent, such free negro or free person of color to sell or dispose of to another, or appropriate to his own Selling free ne- use, as a slave, for life or for less time; or shall, within the kTc'34'^s'12 liniit^^s of the State, unlawfully and wilfully sell or dispose of, '*' ' or appropriate to his own use, as a slave, for life or for less time, any such free negro or free person of color, the person so offending, notwithstanding such free person of color may con- sent so to be carried out of the State with such intent, or to be sold within the State as aforesaid, shall suffer death. Andj it is hereby enacted, that all free persons of color in a state of apprenticeship, or hired or sold for a term of time, by virtue! of the judgment of any court, they and their masters, purchas- '^ ers, and hirers, shall be deemed to be within the provisions of this section. Conveying free 13. If any person shall unlawfully and wilfully entice, or s'tatTwiTini" carry, or convey away, froiTi one part of the State to another tentVsiii!— part of the State, any free negro or free person of color, with R.S.c.34,s.n. ^i^g intent such free negro or free person of color, either within or without the State, to sell or dispose of, or to appropriate to his own use, as a slave, for life or for any less time, the person so offending, notwithstanding such free negro or free Chap. 34.] crimes and punishments. 205 person of color may consent so to be carried or conveyed v.-ith such intent, shall be deemed gnilty of a misdemeanor, and on conviction in tlie superior court of law, shall be fined not less than one hundred dollars, nor more than one thousand dollars, and shall be imprisoned not less than three nor more than eighteen months. And it is hereby enacted, that all free persons of color in a state of apprenticeship, or hired or sold for a term of time by virtue of the judgment of any court, they and their masters, purchasers and hirers, shall be deemed to be within the provisions of this section. 14. If any person shall, of malice aforethought, unlawfully Malicious cut out or disable the tongue, or put out an eye of any person, maiming, — e. with intent to murder, maim, or disfigure, the person so offend- ^' "' ^*' ^' ^^' ing, his counsellors, abettors, and aiders, knowing of and privy to the offence, shall, for the first offence, stand in the pillory for two hours, and receive thirty-nine lashes on his bare back ■ and, for the second offence, shall suffer death. ' : 15. If any married person doth take to him or herself an- Bigamy.-E. other husband or wife, while his or her former wife or hus- ^- "■ ^*' ^- ^*- band is still alive, the person so offending shall be fined and mipnsoned, and receive one or more public whippino-s, and be branded on the cheek with the letter B. Provided, ahvaj/s, that this section shall not extend to any person whose hus- band or wife shall continually remain beyond sea for the space of seven years together, nor to any person whose hus- band or wife shall absent him or herself in any other manner for the space of seven years together, such person not know- ing his or her said husband or wife to be living within that time. And provided a/so, that this section shall not extend to any person who shall be, at the time of such after marriame'"contra'c- teres'ted, shall become an undertaker, or make any contract for ^^rs--K- «• 0- his own benefit, under such appointment, or be in any man- '^' ' ner concerned or interested in making such contract, or in the profits thereof, either privately or openly, singly, or jointly with another; and any person so offending shall be deemed guilty of a misdemeanor. Overseers of 39. Every overseer of a road, who shall be guilty of neg- irf duty"-R: lecting any of the duties imposed on him by law, shall be S.c. 34, S.40. deemed guilty of a misdemeanor. Bridges kept 49. Every owner of a water-mill, situated on any public CTsYn?ertar'road, and also every person w.hosc duty it is to keep up cases.— R. s. c. and repair bridges built across any ditch, drain, or canal, in 34, s. 41. the manner prescribed in section twenty-four of chapter 101, 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 w^iich by law he may be required to keep up and repair, shall be deem- ed guilty of a misdemeanor. Unlawful fen- 41. All persons neglecting to keep and repair their fences 34'T42^'''' during crop time, in the manner required by law, shall be ' ' ' deemed guilty of a misdemeanor. Provided, that the concur- ring testimony of two indifferent witnesses shall be necessary to conviction. Trespassing 42. If any person shall erect a building on any public -R'^s'lf sii' lands, before the same shall have been sold or granted 43.-i8rCc-' by the State, or any lands belonging to the president and ^^•'•*- du-ectors of the literary fund of North Carolina, before the same shall have been sold and conveyed by them, or cultivate, or remove timber from, any of said lands, such person shall be deemed guilty of a misdemeanor ; and when any person shall be in possession of any part of said land, it shall be the duty of the sheriff of the county in which the land is situated, and he is hereby required, to give notice in writing to such person. Trespasser re- commanding him to depart therefrom forthwith; and if the moved by fh'ir. person in possession, upon being so notified, shall not, within 43!^is42',c*36; two wccks after 1he time of notice, remove tlierefrom, the s-4- ' ' sheriff is required to remove him immediately, and, if neces- sary, shall summon the power of the county to assist him in so doing. Vagrants.— R. 43. If any person who has no apparent means of subsist- —im'c'si' ence, or neglects applying himself to some honest calling for ' ' 'the support of himself aiid family, shall be found sauntering about, and endeavoring to maintain himself by gaming or other undue means, any justice of the county wherein such person Arrested, re- ^^y \^f, ft)nnd, on due proof made, may issue his warrant for [adiited.' "" such oli'ending person, and cause him to be brought before him, or some other justice, who is hereby empowered and re- Chap. 34.] crimes and punishments. 211 quired, if such person after examination by him be found to be a vagrant as aforesaid, to recognize him with security for his appearance at the next sviperior court of the county, to an- swer the charge of being a vagrant, and in the mean time to be of good behavior ; and in case of his neglect to give bail, he shall be committed to jail. And if he be found guilty on an indictment to be preferred against him, he shall be fined, and be also imprisoned for the space of twenty days, and be required to give security for his good behavior for such time as the court shall adjudge. 44. If any person shall unlawfully hawk or peddle any PedJlin,? with- goods, wares, or merchandise, or shall fail, upon the applica- °"*;,°J^ J-"p",g"g^ tion of the sheriff or his deputy, or any justice of the peace, a misd'i-.— R. to show his license as required by law, he shall be deemed ''^ "' ^*' ^' *^' guilty of a misdemeanor. 1 45. If any man and woman, not being married to each Fornicatioa other, shall lewdly and lasciviously associate, bed and cohabit misdemeanor, together, they shall be deemed guilty of a misdemeanor. Pro- J^- S- c. 34, s. vidcd, however, that the admissions or confessions of one shall not be received in evidence against the other. ! 46. If any person shall marry a female mider the age of Marrying a fe- fifteen years, he shall be deemed guilty of a misdemeanor. ™f^ witi^ut " Protnded, that this section shall not extend to cases in which -nritten consent the father of the female may be living, and previous and up miidem^anor.'^ to the marrying, shall have consented thereto in writing; and — K. S. c. 34,s. the superior courts of law shall have exclusive original juris-*'' diction of the offence. 47. If any person shall, on purpose and unlawfully, but Jiaiming with- without malice aforethought, cut or slit the nose, bite or cut 1,0^ p'unisba- off a nose or lip, or ear, or disable any limb or member of any ijie.— R. S. c. other person, or castrate any other person, or cut off, maim, or ' " disfigure any of the privy members of any other person, with intent to kill, maim, disfigure, disable, or render impotent such person ; in any such case the person so ofi'ending shall, on conviction thereof, be impirisoned at least six months, and fined at the discretion of the court. 48. If any person send, accept, or bear a challenge to fight a Sending, ac- duel, though no death ensue, he, and all such as counsel, aid, bearlnS-'clml- and abet him shall be deemed guilty of a misdemeanor; and lenge to fight a on conviction thereof, shall be punished accordingly, and, m'^sdeni'^or.— moreover, be ineligible to any office of trust, honor, or profit R- s. c. 34, s. in the State, any pardon or reprieve notwithstanding. 49. If any person shall wilfully and corruptly commit per- Perjury.— R. jury on his oath or affirmation, in any suit, controversy, mat- ^' ''' ^*' ^' ^ ' ter, or cause depending in any of the courts of the State, or in any deposition or affidavit taken pursuant to law; or in any oath or affirmation duly administered of or concerning any matter or thing, whereof such person is lawfully required to be sworn or affirmed ; every person so offending shall be deemed guilty of a misdemeanor, and being convicted thereof, shall stand in the pillory one hour, receive one or more public whip- 212 CRIMES AND PUNISHMENTS. [ChAP. 34. pings, not less than thirty-nine lashes on his bare back, and be fined not exceeding one thousand dollars. Subornation of 50. If any person shall, by any means, procure another per- pcrmry.-R.S. gp^ ^^ commit such wilful and corrupt perjury as is mentioned "' '^'° ' in the preceding section, the person so offending shall be pun- ished in like manner as the person committing the perjury. Perjury and 51. Proinded, liowevcr, That, if such perjury or subornation c"''haTcI°e3 - of PP'"JI''>T be committed or procured on the trial of any offence K!''s.''c.''34rs- the punishment whereof is death, in that ease, the offender ^^- shall, instead of the public whipping, have his right ear cut off and severed entirely from the head, and nailed to the pillory by the sheriff, there to remain till sundown. Perjured per- 52. All persons convicted of perjury or subornation of per- sons made in- jurv, shall be rendered thereby incapable of giving testimony famous. — R. b. J J ' , i x c. 34, s. 50, 51. before any court whatsoever. Accessories to 53. And for the more effectual prosecution of accessories felonies before before the fact to felony, it is enacted, that if any person shall the fact. 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 or statutes made, or to be made, the per- son so counselling, procuring, or commanding, shall be deemed When, where, guilty of felony, and may be indicted and convicted, either as and how tried. ^^ accessory before the fact to the principal felony, together rDS.-iMlt'c. with the principal felon, or after the conviction of the prin- 58. ' cipal felon ; or may be indicted and convicted of a substantive felony, whether the principal felon shall or shall not have been previously convicted, or shall or shall not be amenable to jus- tice, and may be punished in the same manner as any acces- sory before the fact to the same felony, if convicted as an ac- cessory, may be punished ; and the offence of the person so counselling, procuring, or commanding, howsoever indicted, may be inquired of, tried, determined, and punished by any court which shall have jurisdiction to try 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 com- mitted at any place within or without the limits of the State; and that, in case the principal felony shall have been commit- ted within the body of any county, and the offence of coun- selling, procuring, 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 ahvays, that no person who shall be once duly tried for any such offence, whether as an acces- sory before the fact, or as for a substantive felony, shall be liable to be again indicted or tried for the same offence. Accessories to 54. And for the more effectual prosecution of accessories {he'i-act."""' after the fact to felony, it is enacted, that 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 deemed Chap. 34.] crimes and punishments. 213 guilty of a misdemeanor, and may be indicted and convioted together with the principal felon, or after the conviction of the principal felon, or may be indicted and convicted for such mis- demeanor, whether the principal felon shall or shall not have been previously convicted, or shall or shall not be amenable to justice, and may be punished by fine, imprisonment, and pil- lory, or with part only of such punishments, at the discretion of the court ; and in case the person so offending shall be a free negro, the court may likewise punish the offence with a public whipping. And the offence of such person may be When, where, inquired of, tried, determined, and punished by any court ^^J^ '^^^^^''g'l''- which shall have jurisdiction of the principal felon, in the 53.— i8D2, c' same manner as if the act, by reason whereof such person ^^■ shall have become an accessory, had been committed at the same place as the principal felony, although such act may have been committed without the limits of the State; and, that in case the principal felony shall have been committed within the body of any county, and the act by reason whereof any person shall have become accessory shall have been com- mitted witiiin the body of any other county, the offence of such person guilty of a misdemeanor as aforesaid, may be inquired of, tried, determined, and punished in either of said counties. Provided always, that no person, who shall be once duly tried for such misdemeanor, shall be again indicted or tried for the same offence. 55. And in order that accessories may be convicted and Accessories punished in cases where the principal felon is not attainted ; ■"^lYs^n'ot^f" it is enacted, that, if any principal offender shall be in any- tainted. wise convicted, it shall be lawful to proceed against an acces- sory, either before or after the fact, in the same manner as if the principal felon had been attainted thereof, notwithstanding such principal felon shall die or be admitted to the benefit of clergy, pardoned, or otherwise delivered before attainder; and every such accessory shall suffer the same punishment, if he Slay be pun- be in anywise convicted, as he should have suffered if the prin- '^'"^''■ cipal had been attainted. 56. And with regard to receivers of stolen property, it is Receivers of enacted, that if any person shall receive any chattel, property, &c!!ot?'ny'' money, valuable security, or other thing whatsoever, the steal- value.— E.S.c. ing or taking whereof shall amount to a 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 deemed to 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 214 CRIMES AND PUNISHMENTS. [CnAP. 34. tried, in the same manner as such receiver may be dealt with, indicted, tried, and punished in the county where he actually received such chattel, money, security, or other thing; and on conviction, such receiver shall be punished as one convicted of larceny. , Altering marks 57 If any pcrson shall knowingly alter or deface the mark l'":'beSs-E or brand of any other person's horse, mule, or ass, neat cattle, S.°c. 34, s.' 54. sheep, goat, or hog, or shall knowingly mismark or brand any such beast that may be unbranded or unmarked, not properly his own, with intent to defraud any other pcrson, the person so offending shall be deemed guilty of a misdemeanor, and shall be punished as if convicted of petit larceny. Holding out 58. Any person who shall make or display, or cause to be false ligiitson ^^^q or displayed any false light or beacon, on or near the Tc'sts. 56: sea-coast, for the purpose of deceiving and misleading masters of vessels, and thereby to put them in danger of shipwreck, shall be deemed guilty of a misdemeanor. Forgery.-R. 59. If any person, of his own head and imagination, or by S.c.34,6.21. ^^jgg conspiracy or fraud with others, shall wittingly and falsely forge and make, or shall cause or wittingly assent to be foro-ed or made, or shall show forth in evidence, knowing the same to be forged, any deed, lease, or will, or any bond, writ- ing obligatory, bill of exchange, promissory note, indorsement, or assignment thereof ; or any acquittance or receipt for money or goods ; or any receipt or release for any bond, note, bill, or any other security for the payment of money ; or any order for the payment of money or delivery of goods, with intent, in any of the said instances, to defraud any person or corporation, and thereof shall be convicted in any of the superior courts of law, How punished, such person so offending shall be adjudged to stand in the pillory one hour, and receive thirty-nine lashes on his bare back, and be imprisoned not less than six months nor longer than three years, and fined at the discretion of the court ; and all or any of such punishment, at the discretion of the court, may be inflicted. i. f •*. Counterfeiting QQ If any person shall falsely make, forge, or counterieit, Sk^pubiio, or cause or procure the same to be done, or willingly aid or or corporation ' assist therein, any bill or note in imitation of, or purporting to ITsts^g- 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 ot the United States ; or any order or check on any such bank or corporation, or on the cashier thereof; or any of the securities purporting to be issued by or on behalf of the State, or by or on behalf of any corporation, with intent to injure or defraud any person, bank, or corporation, or the State; the person so oflending shall be deemed guilty of felony, and on conviction thereof in the superior court, he shall be punished in like man- ner, as if lie had been convicted under the preceding section. Parsing, or at- Gl And if any pcrson dirccilv or indirectly, whether for the n'i;rc;^n?er- Sake of gain, or with intent to defraud or injure any other per- foit notes.-R. son, shall utter or publish any sucii false, forged, or counter- S. 0. 34, s. 60. ^' Chap. 34.] crimes and punishments. 215 feited bill, note, order, check, or security, as is mentioned ia the preceding section of this chapter; or shall pass, or deliver, or attempt to pass, or deliver any of them to another person, (knowing the same to be falsely forged or counterfeited,) the person so offending shall, on conviction thereof in the superior court, be punished in like manner as is prescribed in section fifty-nine of this chapter. 62. If any ofHcer or agent of a corporation shall, falsely and Forging, issu- with a fraudulent purpose, make with the intent that the same c'J.fiiSes of shall be issued and delivered to any other person by name or stock. as holder or bearer thereof, any certificate or other writing, whereby it is certified or declared that such person, or holder, or bearer, is entitled to or has any 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 certificate or writing specilied; or if any officer or agent of such corporation, or other person, knowing such certificate or . other writing to be false and untrue, shall transfer, assign, or deliver the same to another person, for the sake of gain, or with the intent to defraud the corporation or any member thereof, or such person to whom the same sliall be transferred, assigned, or delivered, the person so offending shall, on convic- tion in the superior court, suffer the same punishment as if he had been convicted under section fifty-nine of this chapter. 63. And if any person shall sell, by delivery, indorsement. Selling forgea or otherwise, to any other person, any judgment for the recov- J^J^'^^I^T*'' ery of money purporting to iiave 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 offend- ing shall, on conviction thereof in the superior court, be pun- ished in like manner as one who offends against section fifty- nine of this cliapter. 64. If any person shall falsely make, forge, or counterfeit, or Counterfeiting cause or procure to be falsely made, forged, or counterfeited, s°i^?'°" ""^'} " or willingly aid or assist in falsely making, forging, or counter- feiting the resemblance or similitude or likeness of a Span- ish milled 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, P^issin?, or at- or attempt to pass, utter, publish, or sell, or bring into the State p ™rth'™!.-i;. from any other place, with intent to pass, utter, publish, or sell «• <^- s^. "• ^'■ 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 per- son so offending shall be deemed guilty of a misdemeanor, and on conviction thereof, in a superior court of law, shall be pun- ished in like manner as if he had been convicted under section fifty-nine of this chapter. 65. If any person shall have in his possession any instru- Halving in po?- ment for the purpose of making any counterfeit similitude or meu'tribr'ouuu- 216 CRIMES AND PUNISHMENTS. [ChAP. 34. terfeitin; snch lilceness of a Spanish milled dollar, or other foreign coin nnade cohi.-R. S. c. q£ o.qJj q^. silver, which is in common iise and received m dis- ^*' '■ '^^' cha'r'^e of contracts by the citizens of the State, and shall be duly^convicted thereof in any superior court of law, the person so offending shall receive thirty-nine lashes on his bare back, and be further liable to be fined at the discretion of the court not more than five hundred dollars, and be imprisoned not more than twelve months. Fraudulently 66. If any person shall fraudulently connect together difler- connecting ^^^ pj^.^g of f^o or more bank-notes, or other genuine instru- Eai?-nSc! ments, in such a manner as to produce another note or instru- ment, with intent to pass all of thenr as genuine, the same shall be deemed a forgery, and the instrument so produced, a forged note, or forged instrument, in like manner as if each of them had been falsely made or forged. Che.fm.'by 67. If any person shall knowingly and designedly, by false tokens.- means of any forged or counterfeited paper in writing or in R.S.o.34,s.6i. ^^.^^^^ ^^ ^^ ^^^^^ ^.^jgg ^Qj.g„^ oj. other false pretence whatso- ever, 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 on any of the United States, or any treas- ury warrant, debenture, certificate of stock, or public security, or any order, bill of exchange, bond, promissory note, or other oblio-ation, either for the payment of money or lor the delivery of specific articles, with intent to cheat or defraud any person or corporation of the same, such person shall be deemed -'>7- hereby authorized and directed, on information made to them Sheriffs and on oath, that any gaming table, prohibited to be used by this S'thl^mvei- chapter, is in the possession or use of any person within the of the county. limits of their jurisdiction, to destroy the same by every means ^''^ ^•°" ^*' ^ in their power ; and they shall call to their aid all the good citizens of the county, if necessary to effect their destruction. 75. If any person shall bet money, property, or other thing Betting or of value, whether the same be in stake or not, at any game oY P.ir;is"[;i''ordi- cards which shall be played in any ordinary, tavern, or house nary, or retail of entertainment, or in. any house wherein spirituous liquors are ej'!rE''s''|,''"' retailed, or on any part of the premises occupied with such 34,' s. 6d. ' 19 218 CRIMES AND PUNISHMENTS. [ChAP. 34. 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 deemed gudty of a misdemeanor, and any fine imposed on the otlence shall not be less than ten dollars. Keeper of onii- 76. If any keeper of an ordinary, or house of entertamment, nm-y and retail ^^ ^^ ^ j^^^gg wherein liquors are retailed, shall knowmgly suf- av^ds'tobe""" fer any game of cards, at which money or property or any played on ^j^-^^^ of value is bct, whether the same be in stake or not, to Ksd'r.-E.'' be ptayed in any such house, or on any part of the premises S. G. 34, 8. 70. ogj.y ied therewith ; or shall furnish persons so playing or bet- tino- with drink or other thing for their comfort or subsistence during the time of play, he shall be deemed guilty of a misde- meanor, and on conviction shall be fined not less than ten dol- lars, and be imprisoned not more than thirty days. Money orprop- 77. All moneys, or other property or thing of value exhibited erty staked for the purpose of alluring persons to bet at any prohibited "^ittst^Le, ir actually staked V betted on such game, shall be ^- «^- liable 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 wardens of the poor. Persons oppos- 78. If any person shall oppose the destruction ot any pro- urrpeoauy" Mbitcd gaming table, or the seizure of any moneys, property, on-rs. I or other thing staked on forbidden games, or shall talve and ^*' '• '^°- carry away the same or any part thereof after seizure, he shall forfeit and pay to the person so opposed one thousand dol ars, for the use of the State and the person so opposed; and shall, moreover, be deemed guilty of a misdemeanor. Billiard and 79 Billiard and backgammon tables are excepted from the tabtfexc;;;;i provisions of this chapter, and may be used. ed.-B. S. c. 80 If any clerk of the court of pleas and quarter-sessions M*u^ia*;of shall knowingly issue any license for marriage between any free negroes, fj-gg uersou of color and a white person ; or it any clergyman, ^^i'forbUuS minister of the gospel, or justice of the peace shall knowmgly -K. S. c. 34, marry any such free person of color to a white person, the per- '■ "■ son so offending shall be guilty of a misdemeanor. Enticing away 81. Any person who shall entice, persuade, or tempt any and harboring ^^^^^ ^^ absent himself from his owner's service, or who shall '^^vZ%n. s. harbor or maintain, under any pretence whatever, any runaway c. 34, s. 73. ^jg^^,p^ gj^^n fQj.fpi^. ^„d pay to the owner of such slave one hun- dred dollars, and be further liable to the owner in an action for damages; and such person shall also pay a penalty of one hundred dollars to any person suing for the same, one half for his use, and the other for the use of the wardens of the poor ol the county where suit is brought. And the olleiider shall moreover be deemed guilty of a misdemeanor, and hned at the discretion of the court, not exceeding one hundred doUars, Teaching slaves to read and imprisoned not exceeding six months. 82. Any free person who shall teach, or attempt to teach Chap. 34.] crimes and punishments. 219 any slave to read or write, the use of figures excepted, or shall or mite, use give or sell to such slave any book or pamphlet, shall be °cne"r!!i7s deemed guilty of a misdemeanor, and upon conviction thereof, "sits. 74.' if a white man or woman, shall be fined not less than one hun- dred, nor more than two hundred dollars or imprisoned ; and if a free person of color, shall be fined, imprisoned, or whipped not exceeding thirty-nine, nor less than twenty lashes. 83. No person shall sell, deliver, or give to any slave, for his Fire-arms, and own use, or for the use of any other person, any sword, dirk, nouVbeS' bowie-knife, gun, musket, or fire-arms of any description what- f- given to soever, or any other deadly weapons of offence, or any lead, ^''^™^' leaden balls, shot, powder, gun cotton, gun flints, gun caps, or other material used for shooting. Provided, however, that any person may sell and deliver to a slave for the use of the person then having his management, any of the articles above men- tioned, he being thereunto authorized by a written permission from such manager, specifying the articles and the amount and quantity so allowed to be purchased for him by such slave. And provided further, that nothing in this section con- Pro^o.— R.s. tained shall be construed to prohibit the delivery to slaves, by °; ^3' ''^•~^**^' their managers, of any of the aforesaid articles to be carried from one place to another, ^or to be carried in the presence of such manager. 84. No person shall trade with a slave on Sundays, or in Trading with the night between the hours of sunset and sunrise, either in jay^'oTat™' the buying of, or selling to the slave any article of property nigiit'.— E. s. c. whatsoever. ^^' ^- '^• 85. Nor shall any person, at any other time, buy of or re- Buying or re- ceive from any slave, without a written permission for that sTi^s w'iS^ut purpose from the person then having the management of such written permis- slave, specifying the articles to be sold, and the probable lE.'s.'c.'lit"' amount or quantity thereof, any of the following articles of s- 75. property, to wit : tallow, lard, mutton suet, oil, grease, soap, cotton, cotton-seed, corn, wheat, rice, barley, oats, or grain of any kind, pork, bacon, beef, flesh of goats, leather, raw-hides, iron, iron castings, steel, farming utensils, nails, meal, flour, wine, spirituous liquor, peas, salt-fish, flax-seed, hogs, cattle, sheep, sheep-skins, flesh of sheep, wool, lumber, staves, tar, pitch, turpentine, fodder, hay, shingles, hoops, oak-heading, potatoes, silk, linen, cotton or woollen cloth, or cloth of any kind, yarn, wearing apparel, gold bullion, silver bullion, tobacco, guano, lime, mechanic's tools of every kind, crockery, stone, or wood ware. 86. Nor shall any person sell to a slave any article which uniaivfui sales slaves may lawfully buy, unless by written permission of the g" ^'''sfTr^s' person then having the management of sijch slave ; or unless ' ''' ' "' '^' the article be sold to such slave in exchange and payment for articles, which may then have been lawfully bought of said slave. 87. No person shall sell or deliver to any slave, for cash, or Certain sales in exchange for articles delivered, or upon any consideration '" ^''"■'-'* °' 220 CRDIES AND PUNISHMENTS. [Ch.VP. 34. spirituous lio whatever, or as a gift, any spirituous liquor, or liquor of which forbidaen.-^. gpintuous liquor may be a chief ingi-edieiit, without permission S. c. 34, s. 7o. .^^ ^^,j.-^-, fj.o,-j^ ti^e person having the management of such slave, specifying the quantity of liquor allowed to be bought. Presumptive 88. If any slave shall be found in any shop, storehouse, evidence of un- v,,arehou^e, tippling-shop, or other place fitted up for trading, I'^l^'^ia,^!'-" in the night after dark and before daybreak, or on Sunday; E. S. c. 34, s. Qj j£ gjave shall be found, at any other time, in any of the ^^' aforementioned places, and therein shall have been permitted to remain for the space of ten minutes with the door of the said place closed; or if any slave shall convey into the afore- mentioned places any article of traffic, and not bring the same out • or if any slave shall bring out of any of the said places any article of traffic not carried in by him, the person using such shop, storehouse, warehouse, tippling-shop, or other place fitted up for trading, shall, in each case, be deemed to have unlawfully traded with such slave, and be deemed guilty of a misdemeanor, and may be convicted thereof, unless he be ac- quitted of the same by proof to the contrary ; and m the prose- cution for such offence, or for the penalty imposed by the fol- lowing section, it shall not be necessary to name the article of trade, or whether the offence was in buying or selling. Offence and 89. Any person offending against any of the provisions^of punishment for gection eightv-three, eighty-four, eighty-five, eighty-six, ciglity- rngvdSsiavet seven, and eighty-eight of this chapter, shall be deemed to be K. S. e. 34, s. guilty of a misdemeanor, and on conviction thereot, shall be "■ punished accordingly. Provided, however, that, if the defend- ant shall have been, at the time of committing the oftcnce, a retailer of spirituous liquors by the small measure, he shall on conviction, moreover, forfeit his license to retail, or any license which he may have taken since the commission of the offence, and shall be incapable of taking license again for that purpose, for the space of two years from the date of his conviction. And provided cdso, that the defendant shall not be imprisoned for a lon'^er period than three months, nor fined more than one hundred "dollars. Provided further, that, if the offender be a free person of color, the court may, in the place of imprison- ment, sentence him to be whipped not exceeding thirty-nine Presumptive 90. Every species of unlawful trading with a slave, which assent of prin- j^ f^.^yjen by this chapter, shall, when done by the agent or fXradingby" manager of another, in the course of the business in which he his agent. j^ employed, be deemed to have been done by the consent and command of his principal or employer, unless the contrary be proved ; and such agent or manager shall be compelled to tes- tify as a witness concerning the said offence, but his evidence shall in no case be used against himself in any suit or prose- cution under this chapter. r,„f;«u.,..„=»i 91. If any person shall fraudulently give, or cause to be to slaves to given, to any slave, a permission in writing to sell, trade, or 34 b! M ■ traffic in any article of personal property, without the authority Forgedliccnses CHAr. 34.] CRIMES AND PUNISHMENTS. 221 of the owner or manager of such slave, the person so offending shall be deemed guilty of a misdemeanor. 92. If any person shall offend against any of the provisions Penl'tyofsioo of any of the sections eighty-three, eighty-four, eiehtv-five, f"^""'''"■^',"y - I i. ■ - I , -1 • 1 ^ 1 ^ . ^ fl , trauinp: with eighty-six, eighty-seven, eighty-eight, and nmety-one of this slaves.— n. s. chapter, he shall forfeit and pay to any one who shall sue for '^- ^^' ^- ''"• the same the sum of one hundred dollars. 93. It shall not be lawful for the master or commander of Entertaining any vessel to entertain, or permit to be entertained, any slave ne^o'-"'"^ ''^° or free negro, on board such vessel, at any time between sun- vessc-is\t"cei-- set and sunrise, nor on Sunday, unless such slave or free ne- bjtidcn'— b*"T gro shall belong to the vessel, or such slave shall have a pass C.V4, s. 76." from his master, and the free negro a pass from some justice of the peace, expressing the time when, and the business i'or which they go on board; and if any slave or free negro who has not such pass, or is not employed on board the vessel as one of the hands, shall be found on board of any vessel in any bay, harbor, creek, or river within the State on Sunday, or in the night between sunset and sunrise, he shall be deemed guilty of a misdemeanor, and shall receive a whipping not exceeding Pnnishment of forty lashes; and th^ master or commander of such vessel so oi'^hit'^''^^; entertaining, or permitting entertainment as aforesaid, shall be sonl "'^'^^ deemed guilty of a misdemeanor ; and it shall be the duty of every justice of the peace of the county where the offence is committed, to whom knowledge thereof shall come, to issue hi.s warrant to arrest such captain or commander, and recog- nize him in sufficient bail for hi.s appearance at the next term of the county or superior court, to answer the charge aforesaid. 94. If any person shall retail spirituous liquors "j^y the small Eotaiiing spir- measure, in any other manner than is permitted by law, he ^[,'3™* ''ji."f''^' shall be deemed guilty of a misdemeanor, and be fined not fol-Sen?— r!' less than ten dollars. s. c. 34, s. 81. 95. If any person shall hunt in the woods in the nighttime, Huntinsby by fire-light, or, being the master or owner of a slave, shall firo-iishl— R. permit his slave to hunt as aforesaid, or connive thereat, the si.''''*''' '' ^^' person so offending shall be deemed guilty of a misdemeanor, and on conviction, shall pay a fine of forty dollars, or be im- prisoned, or both. _ 96. When more persons Ihan one are engaged in commit- Accomplice in ting the offence of fire-hunting, any one may be compelled to IJ[vi",'!!"v|'afnce give evidence against all others concerned : and the witness, n,2n'i'i'i^t'^'ii'is''fel- upon giving such information, shall be acquitted and held dis- |,'i,"',v'er-R charged from all penalties and pains to which he was subject S.c.°34,'s. 85.' by his participation in the offence. 97. If any person shall wilfully put into the well, sprin", ^'iifni injmy or cistern of water of any other person, any substance or tiling, J," wutln".-"'' whereby such well, spring, or cistern may be endaraa"-ed, or i63o,'c. io<. the water thereof be made less wholesome or fit for use, he shall be deemed guilty of a misdemeanor. 98. If any person shall knowingly and fraudulently vote at >■"»■"? fi--''.iviu- an election, who, by law, shall not" be entitled to vote 19' 0.43. ■1S14, 222 CRIMES AND PUNISHMENTS. [ChAP. 34. he shall be deemed £;uilty of a misdemeanor, and shaU be fined or imprisoned, or both fined and imprisoned, at the dis- cretion of the court. Provided, hoicccer, that the fine shall not be more than one hundred dollars, and the imprisonment not more than thirty days. ,. . , ^ Maliciously Ob- 99. If any person shall wilfully and maliciously put or ;tracting rail- pi^^e any matter or thing upon, over, or near any railroad '^^.t death track; or shall wilfully and maliciously destroy, injure, or re- doth not ensue, ^^^e the roud-bed, or any part thereof, or any rail, sill, or other part of the fixture appurtenant to, or constituting or supporting any portion of the track of such railroad ; or shall wiUully and maliciously do any other thing with intent to obstruct, stop, hinder, delay, or displace the cars travelling on such road, or to stop, hinder, or delay the passengers or others passing over the same ; or shall wilfully and maliciously injure the road-bed or the fixtures aforesaid, or any part thereof, with any other intent whatsoever, such person so offending, sha 1 be deemed <^uilty of a misdemeanor, and on conviction thereot in the superior court, shall be fined not exceeding one thousand dol- lar^, nor less than two hundred dollars, and be imprisoned not more than three years, nor less than six ninths ; and shall be committed to jail till he find surety for his good behavior, for a space of time not less than three, nor more than seven years. And if it shall happen that, by reason of the commission o the offences aforesaid, or any of them, any engine or car shall be displaced from the track, or shall be stopped, hindered, or delayed, so that any one thereby be instantly killed, or so When death wounded or hurt as to die therefrom in six calendar months Ilues -1838, thereafter, or shall thereby be maimed or be disabled in lie "'■^^- use of any limb or member, then, and in every such case, tlie party so offending, his counsellors, aiders, and abetters, on conviction shall suffer death. , . Malicious iniu- 100. If any person shall maliciously destroy or injure any vies to plank- piank-road, turnpike, or canal, or any appurtenance or lix- ^-Jii-t^jr-ca- ture belonging thereto, or used therewith ; or shall maliciously nais, misdc- jestroy or injure any lock, dam, or sluice, the same being a """""'■ part of any work erected or made for the purposes of naviga- tion, or improving the navigation of any ^yater, the person so offending, shall be deemed guilty of a misdemeanor and on conviction thereof in the superior court, shall sutler the like How punished, punishment as is provided in the preceding section for mali- ciously injuring a railroad. -.u^,,* Wilful i..iuries lOi: If any person unlawfully and on purpose, but without toSrisand n,alice, shall commit any of the offences mentioned in thetwo .^e,n,''rr" preceding sections, he shall be deemed guilty of a misde- ■^^i. meanor. And if it shall happen that by reason of the com- ■ , , mission of any such ollence, any person shall be mstantly ^""^■^"■"^"■Sllerorsowcfunded or hurt as to die therefrom in six calen- dar months tiiereafter, or shall thereby be maimed or disabled in the use of any limb or member, then, and in every such case, the party so offending, his counsellors, aiders, and abet- CnAP. 34.] CRIMES AND PUNISHMENTS. 223 tors, shall be imprisoned not less than twelve months, and lined at the discretion of the court. 102. If any person shall, unlawfully and on purpose, re- Removing or move from its place, any monument of marble, stone, brass, ^umel'li^.a'""''' wood, or other material, erected for the purpose of designating mo'num''cnts the spot where any dead body is interred; or for the purpose ^Ij^o'^V'^'^- of preserving and perpetuating the memory, 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 monument, or alter the letters, marks, or inscription thereof, he shall be deemed guilty of a misde- meanor. 103. If any person shall, by any other means than burning or Destroying, de- attempting to burn, unlawfully and wilfully demolish, destroy, r="'in&orinjur- deface, injure, or damage any of the houses or buildings men- houS?''"' tioned in sections two, seven, and thirty of this chapter; or shall unlawfully and wilfully burn, demolish, pull down, destroy, de- face, damage, or injure any church, uninhabited house, outhouse, Bumins, injm- or other house or building not mentioned in the above-recited ei,u,.°|,'''''^"'^'"^ sections of this chapter; or shall unlawfully and wilfully burn, LlbUed a'"d"'' destroy, pull down, injure, or remove any fence, wall, or other ^y'l^t""' un- inclosure, or any part thereof surrounding or about any yard, UvJIu'^n Sm-b- garden, cultivated field, or pasture, or about any church, grave- ™7^^'f J™'=J='- yard, factory, or other house in which machinery is used, every person so offending, shall be deemed guilty of a mis- demeanor. 104. If any person shall unlawfully and on purpose, kill, Wilfully kiii- maim, or injure any live-stock running at large in the range, uviTtocfrau- or in the field or pasture of the owner, whether done with the-n'"s«ti'ii'ge— actual intent to injure the owner, or to drive the stock from "2!' *'■'**' ^' the range, or any other unlawful intent, every sucli person, his coinisellors, aiders, and abettors shall be deemed guilty of a misdemeanor. Provided, however, that nothing herein con- tained shall prohibit any person from driving out of the range any stock, unlawfully brought from other States or places. J 05i, If any person shall, within the counties of Macon, Maliciously or Jackson, Haywood, Madison, and Cherokee, maliciously, or ™/t™lfi„^|,'l;. wilfully and wantonly kill any horse, mule, cow, bullock, or t^i"' counties, any_ other cattle, the property of another person, either through l^rluy-Tsai malice agauist the owner, or through wilful and wanton cru- c. 2S. elty towards such live-stock, and shall be thereof legally con- victed in any of the superior courts of law in the counties aforesaid, he shall be subject to the same punishment, and liar ble to the same penalties, that are now imposed by law on persons convicted of feloniously stealing, taking, and carry- ing away like property. Provided, hoicci-er, that nothing in this section contained shall be so construed as to extend the provisions thereof to injuries inflicted on live-stock, while committing depredations on the crops or inclosures of the offender. 106. Those who get ton timber on the Roanoke river, and '''"" *'"^'"''' ' floated down 224 CRIMES AND PUNISHMENTS. [ChAP. 3 i. Eoa,ioke river, float the same down said river, shall select some brand or mark to be mmked, ^^j^jj-jj g^all be cut, impressed, or made on each log of tanber ''^*'' floated down said river, a particular description of which brand Marks &c.,re- or mark shall be recorded in the clerk's oflice of the counties ot ioraed, where. Halifax, Northampton, Bertie, Martin, and Washmgton, and -1854, c. 45, ^ ^gj.t;fipjjt^ thereof under the seal of the court, setting forth the date when recorded, shall be taken by each person record- ing his brand or mark, which shall differ from any other mark or^brand ))reviously recorded. AitcrinRmark 107. Any person may tal^e to his own use any log ot ton ortiikingmark- timber floatin" singly down said river, which is neitlier markea h''„Tto"tlil' or branded; alid if any person shall wilfully and fraudulently, larecny.-i854, ^^.^^j^ intent to steal the same, alter, deface, or remove any such ''■*^'''^" mark or brand, or shall feloniously take or secrete any log of ton timber, thus marked or branded, he shall be deemed to be o-uilty of larceny, and may be indicted therefor m the county m superior court of the county where the offence may be com- mitted, or where the timber may be carried, and, upon convic- tion, shall suffer as in other cases of larceny. Mark first re- 108. In all cascs of Controversy as to the ownership of tmi- corded to hold. i^gj. claimed by two or more persons having the same brand -1854,0.45, ^^ .^^^j_^ 1^^ ^j^^j^ ^^ considered the owner whose brand or mark was first recorded in all the said counties. Sales of liquor, 109. If any person shall exhibit any stud-horse, or jackass, traffic, and ex- ^^ curiosities within half a mile of a place where the peo- piacrofX pie are assembled for divine worship; or shall sell any spiritu- ship, forbidden, Unuor, or any liquid of which spirituous liquor shall be a r."w2,7."i!2'; chief ingredient? or be engaged in any kind of tmflic or at- 1850, c. 106, s. ^ ^ ^Q traffic, within one mile where divmc worship is cele- ^' ^' brating, contrary to any of the provisions of sections six and seven of chapter ninety-seven, entitled " Religious Societies; every person, so offending against any of the provisions of said sections, shall be deemed guilty of a misdemeanor. Sending letters 110. If any person shall knowingly send or deUver any let- containing ^.pj Qj writing demanding of any person, with menaces, aiiU ■ ZnS- tV without any reasonable or probable cause any chattel money, ey; or threat- ^^ valuable security; or if any person shall accuse, or tUreaten rSfTnfa-"" to accuse, or shall knowingly send or deliver any letter or wnt- mous crime to -^ accusing or threatening to accuse any person oi any crime extort .noney. ^^j^,,^^,^. ^j^^ j,^^^. ,,.5^,, ^i^ath, branding, whipping, or pillory, with a view or intent to extort or gain from such person any chattel, money, or valuable security, every such oflender shall be deemed guihy of a misdemeanor. Malicious iniu- 111. If any pcrsou shall maliciously commit any damage, rics to real es- l^^\^^yy or spoil upon any real property whatsoever, either ot a '""• public or in-ivate nature, for which no punishment is provided by any existing law, every person so olU'nding shall be deemed 'niiltyof a misdemeanor. Frocidvd, uhcaj/s, that nothing liere- fn contained shall extend to any case where the jvarty tres- passing or (loiny the injury, acleil under a fair and reasonable belief that he had a right to do the act complained of, nor to Chap. 34.] crimes and punishments. 225 any trespass, not being wilful and malicious, committed in hunting, fishing, or the pursuit of game. 112. If any white female shall be convicted of any offence, White women the punishment or any part whereof shall be branding or whip- "d'or '"hi'™"d' ])uig, the same shall not be inflicted, but the court, instead thereof, may sentence such female to imprisonment for any length of time in its discretion. 113. If any sheriff, coroner, or other returning officer shall Neglisentomis- negligently omit to do and perform any act, matter, or thing ','™officer3''in' requu-ed of him in relation to the returns to be made by him, cie'ction of gov. in regard to the election of governor, or of electors for presi- ■Js^j^c'^'^M^^c" dent and vice-president of the United States, and the trans- 33, s! 4. mission to the seat of government and delivery to the proper officer, of the polls in the manner and form, and within the time prescribed for the same, as is required respectively in the chapter entitled " governor and council" and " electors of presi- dent and vice-president," he shall for such offence forfeit and pay the sum of five hundred dollars, to be recovered in the name and to the use of the State, on motion by the attoi-ney- general in the superior court of law of the county of Wake, ten days previous notice in writing, of such intended motion being given to such officer by the secretary of State : the pro- ceedings thereon shall be summary. And if any matter-of-fact shall be in issue, the same shall be tried at the first term ; and on such trial, or for any other purpose in the prosecution of such motion to judgment, the certificate of the secretary of State, or of the governor, as the case may be, of the particular default on which the motion shall be founded, shall be re- ceived as competent primd facie evidence to prove the same ; and such officer shall further be deemed guilty of a misde- meanor. 114. If any sheriff, coroner, or returning officer whatever, Wiifui neglect shall wilfully, or of malice, refuse or neglect to perform any pgrform'thelr duty, act, matter, or thing, required or directed, in the time, dutyin election manner, and form, in which such duty, act, matter, or thing is °[gj.°™.— """^ required to be performed in relation to the election and returns 1S42, c. so, s. 5, thereof, of the governor, or of electors for president and vice- president of the United States, the person so offending shall be deemed guilty of felony ; and upon conviction shall be fined not less than one thousand, nor more than five thousand dol- lars, and be imprisoned not less than one, nor more than three years ; shall be disabled from holding any office of profit or trust under the authority of the State, and shall moreover for- feit the sum of one thousand dollars, to be recovered in the court, and in the manner in the last section dnected. 115. The superior court of law of tiie county of Wake shall Ofibnccs, juris- have jurisdiction of all offences under the two preceding sec- ''"^"°" "'■ tions of this chapter ; and no such oftence shall be pardoned Not panionod. nor any of the penalties therefor be remitted by the gov- ~J"''''^' '^" ^^' ernor. 116. If any white person shall play with any slave or free wiiito persons playing at 226 CRIMES AND PUNISHMENTS. [CuAP. 3-4. cards witii person of color, at any game of cards, or at any game of haz- slaveor^free ^^^^ chance, or skill whatsoever, either with or without betting c.Tse. ' on the said game, he shall be deemed guilty of a misde- meanor. Contempt of 117. Attachments and summary punishments for contempt S'be-W46 of court shall be lawful only in such cases of misbehavior as c.'cG, s.'i, 2. ' are done or committed in the presence of the court, or so near thereto as to obstruct the administration of justice ; incases of misbehavior of the officers of court in their official transac- tions; in cases of disobedience or resistance by any such offi- cer, or by any party, witness, juror, or other person to any lawful writ, process, order, decree, or command of the court ; and in every instance where the court shall issue an attach- ment, or shall adjudge or award any summary punishment for contempt of court, tiie court shall cause the particulars of the ofience to be specified on the record, and in every conunittal, attachment, writ, or process in nature of an execution founded upon such judgment or award, or in a written schedule thereto annexed and therein referred to, such particulars of the offence shall be set out ; otherwise the same shall be deemed unlaw- ful and void. Constables fail- Hy. Any constable refusing or neglecting to retm-n any ~s^or ma- precept, notice, or process to him tendered or delivered, which king false re- it is his duty to execute, or making a false return thereon; or sueh^'thout"' any person who shall presume to act as constable, not being authority.-R. by law authorized so to do, shall forfeit and pay to any one o'JiX'si.^^' who will sue for the same one hundred dollars, and shall more- over be deemed guilty of a misdemeanor. Officers failing 119. If any clerk of the county or superior court, clerk and to discharge piaster in equity, sheriff, or any other officer in the State, who their duties m- '""■'"'^' ' 1 J' . ' J j. i. , „„ „^*1, ,->f dictabie.— R.S. is requn-ed, m entermg upon his office, to take an oatli oi 0.19,8.14. office, shall wilfuUy omit, neglect, or refuse to discharge any of tlie duties of his office, for default whereof it is not else- where provided that he shall be indicted, the clcrk or other officer so offending shall be deemed guilty of a misdemeanor. Misdemeanors 120. Offences made misdemeanors by statute, where a ""uni'sheTas at Specific punishment is not prescribed, shall be punished as mis- common law', demeanors at common law; but the punishment of tlie pillory wlle'directed shall be used only for crimes that are infamous or done in by statute. secrecy and malice, or done with deceit and intent to de- fraud. Sect. 2. Burglary, 9 Iro. 463; 13 lb. 244. Arson, 3 Ire. 670. Sect. 5. 8 Ire. 305; 4 lb. 224. Sect 7 6 Ire 360 Sect! 10. 3 Mur. 12; 12 lie. 157; 9 lb. 110; 2 D. & B. 390; 2 Cur. I.. I!. 201. \\nu(, Bus. 191. Sect. 12. Bus. 9. Sect. 14. 7 Ire. 89; 1 lb. 121. Sect. 15. 2 Dev. 222; 2 Ire. 840. Sect. 20. 3 Hawks, 818. Sect. 28. 4 Hawks, 850; 3 Mur. 480. Sect. 39. 2 Car. L. B. 633. Chap. 35.] CRIMINAL PROCEEDINGS. 227 Sect. 40. X2 Ire. 130. Sect. 41. 6 Ire. 229; 2 Dev. 213. Sect. 45. 3 Dev. 331; 3 D. & B. 110; 4 Ire. 231. ' Sect. 47. 1 D. & B. 119. Sect. 48. 1 Hawks, 4S7. Sect. 49. 6 Ire. 5; Bus. 402. Sect. 56. 13 Ire. 338. Sect. 57. 7 Ire. 251; 2 lb. 153. Sect. 59. 13 Ire. 491; 3 lb. 474; 2 D. & B. 348; 3 Dev. 122; 2 lb. 443. Wliat not forijery, 6 Ire. 79; 7 lb. 206. Sect. 60. 2 Hawks, 248 ; lb. 443. Sect. 61. 5 Ire. 287. Slaves not includal Bus. 214. Sect. 65. 3 Hawks, 191. Sect. 67. 11 Ire. 477; 4 Hawks, 348; 2 Dev. 199; 1 D. & B. 408; 3 Hawks, 620. Sect. 72. Shuflle board, 8 Ire. 266. Tenpins, 8 Ire. 271. Sect. 75. 4 D. & B. 185; 1 Ire. 14; 9 lb. 378. Sect. 81. 3 D. & B. 125. Sect. 85. 4 Ire. 246 ; 6 lb. 82. Sect. 67. 9 Ire. 356; 7 lb. 275; 1 D. & B. 199; 2 Dev. 299. Sect. 89. 1 Ire. 115. Sect. 94. 1 Ire. 384 ; 4 D. & B. 107. Sect. 98. 10 Ire. 336; 12 lb. 178. Sect. 103. Bus. 197; 13 Ire. 36; lb. 341. Sect. 116. 2 D. & B. 29. CHAPTEK 35, CREVIINAL PROCEEDINGS. Section 1. Duty of magistrates in committing criminals. Examination of crimi- nals and witnesses when evidence. 2. Dutj' of sheriffs and others, officers in arresting criminals. All persons to aid officer. 3. Persons to be imprisoned in common jail of county. Proviso as to sheriff. 4. Governor may employ agent, or offer reward, for apprehension of fugi- tives, charged with capital offences. 5. Fugitives, from other States, ch.arged with high crimes, committed. 6. Ko person to be arrested on a present- ment, &c. 7. Names of witnesses, t&c.) indorsed on presentment. 8. Indictments for misdemeanors, except perjury, &e., to be commenced in two yearrs, if the offender is known. Proviso, where indictment is defec- tive. 9. Criminal process to issue and be re- turnable at any time. Proceedings to be, .as heretofore. 10. Sheriff to indorse on process and sub- poenas, day of receiving and execut- ing them. 11. To take bail, when offence is bailable. ShiiU not become bail himself Section 12. Persons convicted of misdemeanors, allowed bail pending their appeal. 13. Accused, entitled to counsel. 14. Indictments, &c. not quashed or judg- ment stayed, for formal objections. 15. Proceedings of court, how, and what part set forth in indictments. 16. What set forth, in indictment for per- 17. Wh-it, for subornation of perjury. IS. In indictment for second offence, how first conviction stated. 19. How ownership of property stated. 20. Certain defects not to vitiate indict- ments. 21. Intent to defraud ; what statement and proof thereof sufficient. 22. Party whose name is forged, compe- tent witness. 23. Counts joined for trading with slaves, receiving stolen goods, &c. 24. Crimes committed on waters dividing counties, where tried. 25. How improper venue taken advantage of. By plea in abatement. On issue joined, what judgment rendered in misdemeanors. What in felonies. 26. In indictment for libel, defendant may give the truth iu evidence. 228 CBIMINAL PROCEEDINGS. [ClIAP. 35. Section 27. Assault and death in different coun- ties, trial where assault was made. 28. Assault in this State and death out of it, trial in this State. 29. Plea entered for defendant, who stands mute. 30. In capital cases, judge may issue a special renire. 31. Penalty on sheriff not executing it, and jurors not attending. 32. In capital cases, defendant may chal- lenge twenty-three jurors; in others, four. Allowed aid of counsel. 33. State may challenge four jurors, in capital cases ; in others, two. 34. On conviction for robbing or stealing, goods restored. 35. New trial granted to defendants. 86. A day, for trial of crimes, fixed by county and superior courts ; wit- nesses not to attend till such day. 37. Pay of witnesses in State eases. Court, in certain cases, may direct prosecutor to pay costs. 38. Judges may lessen, or remit, recogni- zances, at any time. Duty of magis- trates in com- mitting crimi- nals.— R. S. c. 35, s. 1. Section 39. Clerks to refund remitted forfeitures paid into office. 40. County trustee to refund, when paid to him. 41. Fines remitted or lessened by county court, when. 42. Forfeited recognizances, remitted or lessened before judgment, by county court. 43. No execution to issue till after scire facias. 44. Joint scire facias to issue on forfeited recognizances. 45. How scire facias executed. 46. Costs paid by the convicted, &c. 47. Penalties not given specially, may be recovered by any one. 48. Recovered in the name of the State, when. 49. Prosecuting officers, to direct post mortem examinations. 50. Persons participating in unlawful gam- ing, compelled to testify of the gam- ing. Not to be prosecuted therefor. Examination of criminals and witnesses, when evidence. Duty of sheriffs and other offi- cers in arrest- ing criminals. 1 No person shall be committed to prison for any criminal matter, until examination thereof be first had betore some magistrate, who shall admit the party to bail, if bailable, and shaU record the examination of the party, and also the full matter given in evidence, both against him and for hnn, with all concurring circumstances, and shall take recognizance, with good and sufficient sureties, for the informer to appear and prosecute, as the law of the State directs, and likewise for all witnesses for the State to appear and give evidence against the criminal at the next court where the matter is cognizable, ensuing such examination ; which examination and recogni- zance shall be subscribed by the magistrate, and returned to the oflice of the court wherein the matter is to be tried ; and the examination so taken and subscribed by the magistrate 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 opportunity to hear the same, and to cross- examine the deposing witness, if such witness be dead, or by procurement or connivance hath removed from the State, or is 71011 compos mentis. 2. Whenever a felony, or any crime, the purfishmcnt where- of for the first or second offence is death, or any part of the punishment thereof is whipping or standing in the pillory, shall be committed, the sheriff', constables, and other peiice-olliccrs, upon information thereof received by them, shall forthwith pursue and arrest the person committing such felony, or other crime as aforesaid ; and any of the said officers shaU call to Chap. 35.] criminal proceedings. 229 his aid and assistance as many of the citizens of the. county as All persons to may be necessary for that purpose ; and if any such officer re^'uSt"— r"s shall refuse or wilfully neglect to pursue and use all the means c! 35^3. 2. in his power to arrest such criminal, or if any person sum- moned to aid and assist such officer in the pursuit and arrest of such criminal, shall refuse or wilfully neglect to render aid and assistance, every such officer or citizen so offending shall be deemed guilty of a misdemeanor. 3. No person shall be imprisoned by any judge, justice of Persons to be the peace, or other peace-officer, but only in the common jail loim'fo" jliUf of the county; provided, that whenever the sheriff of any county. county shall be liable to be imprisoned, he may be imprisoned sherlff.-R.'s. in the jail of any adjoining county. c. 35, s. 4. 4. The governor, on information made to him of any person Gov. may em- having committed an offence of a capital nature within the P'°y "S""*' "'" State, and of having fled out of the jurisdiction thereof, may prehenIio'i'[o7' either employ a special agent, with a sufficient escort, to pur- ^'fi'-t,';'"''''''-"'"; sue and apprehend such fugitive, or issue his proclamation, offences.— R.'s. and therein offer a reward, not exceeding four hundred dollars, ■=• ^^' ^- *• according to the nature of the case, as in his opinion may be sufficient for the purpose, to be paid to him who shall appre- hend 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 public treasurer, for sufficient sums of money for such purposes. 5. Any judge of the supreme court, or of the superior courts Fugitives from of law, or justice of the peace, on satisfactory information laid cLar'^e^d with before him, that any fugitive in the State has committed, out h!gi'i°crin7e's, of the State and within the United States, any murder, larceny, l^T'^^t'T^ or other felonious offence, or any other offence, although but a ' '*'' '^' ' misdemeanor by the law of this State, the punishment of which said felonious offences and misdemeanors shall, by the law of this State, be whipping, branding, pillory, death, or any of them, shall have full power and authority, and are hereby required, to commit said fugitive to any jail within the State for the space of si.K months, unless sooner demanded by the public authorities of that State wherein the offence may have been committed, agreeable to the directions of the Act of Con- gress in that case made and provided ; and if no demand be made within that time, the said fugitive shall be liberated, unless sutHcient cause be shown to the contrary. 6. No person shall be arrested on a presentment of the No person to grand-jury ; or put on trial before any court, but on indictment '" "'"'"''''r' ""» found by the grand-jury. L'l-R. s.'c ' 7. When a presentment shall be made of any offence by a Ifamesof wit- grand-jury, upon the knowledge of any of their body, or upon nes's"^ ft^'in- the testimony of witnesses, the names of such grand-jurors and t°ntme.r-T" witnesses shall be indorsed thereon. "s. c. 3.5, s. 7. ' 8. All misdemeanors, e.\cept the offences of perjury, foro-ery. Indictments malicious mischief, and other malicious misdemeanors, d(T-eit, eeprpcrjuV^" and the offence of being accessory after the fact, now made a ■S.^ • '" ''<> co'n- 2Q meuced iu two 230 CRIMINAL PROCEEDINGS. [ClIAP. 35. vcars.if offend- misdemeanor, shall be presented or found by ihe grand-jury cr is known, -^vithin two years after the commission of the same, and not afterwards. Provided, however, that in case any of the said misdemeanors hereby required to be prosecuted within two years, shall have been committed in a secret manner, the same may be prosecuted within two years after the discovery of the Proviso, .vheie offender. And provided further, that if any indictment found deSie-R within that time shall be defective, so that no judgment can i.l'^zb%. 8.' be given thereon, another prosecution may be instituted for the same offence, within one year after the first shall have been abandoned by the State. Criminal pro- 9. AH process, Warrants, and precepts, issued by any judge andbe return- or justice of the peace, or clerk of any court, on any crnnnial abieatany prosecution, may issue at any time, and be made returnable *™''- to any day of the term of the court, to which such warrant, ,. , process, or precept is returnable; and the proceedings on be?«'he.X criminal prosecutions shall be agreeable to the practice hereto- fore.— R. s. c. fQj.g jjj yye^ except where the same may be otherwise directed. Sheriff to in- 10. Every sheriff shall indorse on all process and subpo-nas dorse on pro- issuing in criminal cases, whether for the State or delendant, pSnaTday of the day whcn such process and subpcenas came to hand, and receiving and ^^jg^ ^j^g jj^y of ^^eir execution; and on failure of any sheriH ttien^-Tsso, to perform either of said duties, he shall forfeit and pay the "■ "• sum of ten dollars for every case of neglect, to be recovered for the use of the State, in the same manner as forfeitures are recovered against sheriffs by parties in civil suits, for failure to make due return of process delivered to them. To take bail 11. When any sheriff or his deputy shall arrest the body of iviien offence is ^ person, in consequence of the writ of capias issued to him bailable. ^^^^ ^j^^j_ ^^ ^ ^^^^^ ^^ recoxA on an indictment found, the said sheriff or deputy, if the crime is bailable, shall recognize the offender, and take sufficient bail in nature of a recogni- zance, for his appearing at the next succeeding court of the Shall not be- county, where he ought to answer ; which recognizance shall come bail him- be returned with the capias ; and the sheritl shall, in no case, 35"^8~w ^' ''' become bail himself. BaVaiiowed 12. When any person convicted of a misdemeanor, and pending appeal, sentenced by the court, shall appeal, the court shall allow such -1850, c. . j^g^j^ ^p g-yg l3jj^ij^ pending his appeal. Accused, en- 13. Every person, accused of any crime whatsoever, sliall Iei'.-R°s?c"" be entitled to counsel in aU matters which may be necessary 35, s. 11. for his defence. Indictments, ^4 Every criminal proceeding by indictment, information, fd ^r'Tudgmt' or impeachment, shall be sufficient in form for all intenls and staveci, for purposes, if it express the charge against the defendant in a [lonT-ll!''!: plain, intelligible, and explicit manner; and the same shall not c. 35, s. 12. be quashed, nor the judgment thereon stayed, by reason ol any informality or refinement, if in the bill or proceeding suihcient matter appears, to enable the court to proceed to judgment. Proceedin-s of 15. In every indictment, inforination, or impeachment in Xt palT'"'"' which, by the common law, it may be necessary to set fortii at 'M Chap. 35.] criminal proceedings. 231 length the judicial proceedings had in any case then or for- set forth in in- merly pending in any court civil or military, of law or equity, or t"'''™'^"'*- before any justice of the peace, it shall be sutEcient to set forth the substance only of said proceedings, or the substance of such part thereof as make, or help to maiie, the oflence prose- cuted. 16. In every indictment for wilful and corrupt perjury, it Wimt «ot forth shall be sufficient to set forth the substance of the offence f"r'pcrju,'y.- charged upon the defendant, and by what court, or before 18«, c. 49, s.i. whom, the oath was talcen, (averring such court, or person to have competent authority to administer the same,) together with the proper averments to falsify the matter wherein the perjury is assigned, without setting forth the bill, answer, in- formation, indictment, declaration, or any part of any record or proceedings, either in law or equity other than aforesaid, and without setting forth the commission or authority of the court, or person, before whom the perjury was committed. 17. In every indictment for subornation of perjury, or for What, for sub- corrupt bargaining, or contracting with others to commit wil- ""y'^lY/^f i"" ful and corrupt perjury, it shall be sufficient to set forth the «, s'. 2. substance of the offence charged upon the defendant, without setting forth the bill, answer, information, indictment, decla- ration, or any part of any record or proceedings, either in law or equity, and without setting forth the commission or author- ity of the court or person, or persons, before whom the per- jury was committed, or was agreed or promised to be com- mitted. 18. In any indictment for an offence, which, on the second In indictment conviction thereof, is punished with other or greater punish- feLT^ow first ment than on the first conviction, it shall be sufficient to state, conviction that the offender was, at a certain time and place, convicted ^^'''^'^' thereof, without otherwise describing the previous offence ; and a transcript of the record of the first conviction, duly cer- tified, shall, upon proof of the identity of the person of the offender, be sufficient evidence of the first conviction. 19. In any indictment wherein it shall be necessary to state How own'rship the ownership of any property whatsoever, whether real or erf mIcM in™"'" personal, which shall belong to, or be in the possession of more common, &c. than one person, whether such persons be partners in trade, joint-tenants, or tenants in common, it shall be sufficient to name one of such persons, and to state such property to be- long to the person so named, and another, or others, as the case may be : and whenever, in any such indictment it shall be necessary to mention, for any purpose whatsoever, any partners, joint-tenants, or tenants in common, it shall be sufii- cient to describe them in the manner aforesaid ; and this pro- vision shall extend to all joint-stoclc companies and trustees. 20. No judgment upon any indictment for felony or misde- portnin defccts meanor, whether after verdict, or by confession, or otherwise, uot'to''vmat".'* shall be stayed or reversed for the want of the averment of any matter unnecessary to be proved, nor for omission of 232 CRIMINAL PROCEEDINGS. [ChAP. 35. the words "as appears by the record," or of the words " with force and arms," nor for the insertion of the words " against the form of the Statutes " instead of the words " against the form of the Statute," or vice versa ; nor for omitting to state the time at which the offence was committed, in any case where time is not of the essence of the offence, nor for stating the time imperfectly, nor for stating the offence to have been committed on a day subsequent to the finding of the indict- ment, or on an impossible day, or on a day that never hap- pened ; nor for want of a proper and perfect venue, when the court shall appear by the indictment to have had jurisdiction of the offence. Intent to 7e j^^^ ^^^^ increased at this session, or any such charter whicli ^stoKkTug. may hereafter be passed in this State, shall require a certain Certified by amount of specie to be paid in before such bank shall go into Sf " operation, in order the more effectually to secure a compli- ance with the terms of the charter, the president and cas uer of every such bank shall certify in writing, under the seal ot the corporation, that the amount of specie required to be paid in by the charter, has been actually and bona fide paid in, to be there used as a basis for banking operations ; and shall deposit Certificate de- the said certificate with the governor, to be kept in the ar- positedwith ^Y\\ves, of the executive office; and in case the president and goveruoi. ^^^^^.^^ ^^^^^^ ^^^^^^^^ ^^ ^^^^^^^^ ^^ ,^^^.^j^^ provided, to Sign and deposit such certificate, then they and each one of the direc- tors of the bank, shall be liable to indictment for a misde- „ ,, , meanor, in the superior court of the county where such bank fol&'de- is located ; and on conviction, shall be fined in a sum not less posit^ertifi- ^j^j^,^ Qj^g thousand, nor more than three thousand dollars, at 4',''s'^'i. ' ' the discretion of the court. Penalty for is- 9. After signing and depositing such certificate, if it shall suing false cer- appear that the same does not speak the truth in the premises, tiiicate.-i854, ,^1^^ ^,^^^ ^,^^ amount of specie required to be paid in, has not ■ ' ■ ■ actually and bom fide been paid in, for the purpose aforesaid, then, and in that case, the president, cashier, and each ot the directors of the bank, shall be indictable for a misdemeanor, in the superior court of the county wherein the bank is located ; and each one on conviction, shall be fined in a sum not less than one thousand, nor more than three thousand dollars, and imprisoned for a term of not more than three months, at the discretion of the court. Skot. 6. 2 D. & B. 555. Chap. 37.] deeds and conveyances. 239 CHAPTER 37. DEEDS AND CONVEYANCES. Section 1. Deeds proved and registered in coun- ty where land lies within two years, good without livery, &c. 2. Before whom deeds, bills of sale, pow- ers of attorney, proved. 3. When grantor or subscribing witness out of State, proved before commis- sioner appointed by court. 4. Commission to issue under seal. Pro- bate and privy examination oP feme covert taken and certified. Deeds registered on return of certificate. 5. Probate of deeds, &c., within United States, including deeds of feme co- vert, before a judge. How certified. 6. Deeds made in foreign countries, how proved and registered. 7. Further provisions for probate of such deeds, before ambassadors, &c. 8. Deeds of husband and wife, how proved. Wife privately examined. 9. Provision when wife is sick, or resi- dent of another country or county. 10. Form of commission to take private examination of feme covert, 11. Conveyance under power of attorney from husband and wife to pass lands. 12. Another mode when husband and wife reside in foreign parts. 18. Powers of attorney by fetne covert proved .and registered as deeds. 14. Powers of attorney, how proved in State. How proved out of State. 15. Deeds, ijcc, how proved when attest- ing witness dead. Section 16. Copies of registered deeds evidence, unless by rule original is required. 17. Gifts of slaves proved and registered. 18. Deeds of gift also. 19. Sales of slaves in writing also. 26. Registered where purchaser resides, unless vendor retains possession, Sic. 21. Estates in slaves limitable by deed, &c., as by will. 22. Mortgage and trust deeds good against creditors, &c., only from registration. Where registered. 23. Register to indorse day of delivery, and register in order. Penalty for failure. 24. JIarriage settlements registered, oth- erwise void as to creditors. 25. What marriage settlements good against creditors. How deficiency in property settled, made up. 26. Contracts to sell lands, and leases, re- quired to be in writing, must be reg- istered. 27. Infont tnistees, how to convey. 28. Errors in registration of deeds, &:c., how corrected. Appeal allowed. 29. Deeds registered in wrong county be- fore 1830, or certified copies thereof, may be registered in proper county, when. 30. Deeds how made when sheriff, &c., who sells, goes out of office, dies, or removes away. 31. Witnesses to deeds may be summoned to prove them. 32. Further time allowed for registering deeds, &c. 1. No conveyance for land shall be good and available in Deeds proved law, unless the same shall be acknowledo;ed by the f^rantor. or ?-"'^ registered J III , o v" o * in CO where proved on oath by one or more witnesses in the manner here- laud lies, with- inafter directed, and registered in the county where the land "ood v'Yio"' shall lie, within two years after the date of the said deed ; and hveryT&c?- all deeds so executed and registered shall be valid, and pass ''•^- "•■''' ^- ^■ estates in land, without livery of seizin, attornment, or other ceremony whatever. 2. All deeds, bills of sale, powers of attorney, and other Before whom, instruments of writing required or allowed to be registered, ?.^f(.''*'>o''wer3°'^ may be admitted to registration in the proper county, upon .■aVy inwe".— being acknowledged by the grantor, or proved on oath before J'^ as-i'biti^' 240 DEEDS AND CONVEYANCES. [ChAP. 37. c. 68, s. 3; 1852, one of the judges of the supreme or superior court, or in the <=• "3- county court of the county where the land or estate is situate, unless otherwise directed, or before the clerk of such court, or his deputy. Provided, that nothing herein contained shall be construed to allow the privy examination of fanes covert to be taken otherwise, than by law is specially directed. When grantor 3 AH deeds for land or other estate situate within the "itne'!.'s"^t'o!- state, and powers of attorney to convey the same ; all bills of State, proved sale, and all other instruments of writing requn-ed or allowed wo^itTby to be registered, wherever such deeds, powers of attorney, bills comt.-R. s. c. of sale, or other instruments of writing may have been exe- 37,s.4,8. ^^^^p^,^ whether within or without the State, if the grantor or subscribing witness shall reside, or be, beyond the limits of the State, when it may be desired to liave the same registered, may be acknowledged by the grantor, or proved by the wit- nesses, before a commissioner or commissioners to be ap- pointed by the court of pleas and quarter-sessions of the county wherein the same are to be registered. Commission to 4. When any person shall desire to have registered any issue under gygh deed or other writing as is mentioned m the preceding sec- '^*'' tion, the court of pleas and quarter-sessions aforesaid may issue ' a commission under the seal of such court, (returnable to some subsequent term thereof.) to a commissioner or commissioners, authorizing any one or more of them to take the acknowledg- ment of the parties, or the examination of any one of the sub- scribing witnesses thereto, or other due proof thereof; and Probate and also the examination of any feme covert party to the same ; of"/VmTcr«-i° and the proceedings of the commissioners, so authorized, being taken and cer- returned to the court, the court may proceed to adjudge that ^'^^'"^- such deed or other instrument of writing is duly acknowledged or proved, and that the said examination is in due form: and Deeds register- thereupon the same, with the said proceedings, shall be regis- certifieale.- tered ; and such registration shall have the same effect as if the R. S. c. 3T, s. proceedings had been in open court. Probate of 5. When any deed conveying lands in this State, or power deeds, &c., of attorney for the conveyance of the same, or any bill of Sdi.!^'deeds sale for slaves, or other instrument whatever required or al- offemem'ert, jowcd to be registered, shall have been executed by any per- beforeajudge. ^^^^^ ^^^^^ .^ ^^^^^ ^^ desired to take the probate or acknowledg- ment thereof out of this State, but Avithin the United States, and the same shall be personally acknowledged by the person executing the same, or be proved by a subscribing witness thereto, or duly proved in any other manner, before some one of the judges of supreme jurisdiction, or a judge of the courts of law of superior jurisdiction within the State, territory, or district where the parties may be, — and if any of the ])artics shall be a ferne covert and she shall be privily examined by such judge, whether she doth voluntarily assent thereto, — and an attestation of such acknowledgment or probate and cx- liow certified, amination shall be indorsed or allixed to such deed or other "^' instrument by the judge, and a certificate of the governor of — K. Chap. 37.] deeds and conveyances. 241 the State or territory, or (where the probate or acknowledo-- ment and examination shall be in the district of Columbia) of the secretary of State of the United States, shall be annexed to such deed or other instrument, that the judge, before whom the acknowledgment or probate and examination was taken, was, at the time of taking the same, one of the judges of the courts of superior jurisdiction within said State, territory, or district: Or when such deed, power of attorney, bill of sale of slaves, or other instrument as aforesaid shall be so ac- knowledged or proved, and the privy examination taken as aforesaid, before any commissioners aJDpointed by the governor of this State, according to law, and duly certified by him, such deed, power of attorney, bill of sale, or other instrument,' being exhibited in the court of pleas and quarter-sessions of the county where the property is situate, or to one of the judges of the supreme court or of the superior courts of this State, shall be ordered to be registered with the certificates thereto annexed; and the same being registered in the county wherein the property may be situate, pursuant to such order ; or, in the case of slaves, in the county as by this chapter is directed, shall be valid in law for the purpose intended thereby, and shall be received in evidence in any court without further proof. 6. All deeds, bills of sale, and other instruments of writing Deeds made in made m parts beyond the limits of the United States, required ["•'""'§? ""'^i'- or allowed to be registered in this State, which shall be remit- proverand ted hither, and duly proved in the State, or which shall be Jf^""=''f;- personally acknowledged or proved before the chief magistrate ''•''■ '^- '^^''•''• of any city in the country, in which such deed, bill of sale, or other instrument was executed, and an attestation thereof under the corporate seal affixed thereto, shall, upon being ex- hibited to the court of pleas and quarter-sessions of the praper county, or to one of the judges of the supreme or superior courts of the State, be ordered to be, and shall be registered • and when registered, shall be good and valid in law to all in- tents and purposes, and shall be received in evidence without further proof. 7. Whenever a deed, bill of sale, or other insti-ument of F"'-*'-" pro- writing which is authorized to be registered, shall be proved b.ueof ^ch™" or acknowledged in foreign parts before any ambassador, pub- ''ps'i^ '«fore he minister, consul, or commercial agent of the United States, &c''-R''n and his certificate shall be thereunto annexed, under his offi- 37,s. 7. ' ■"■ "" cial seal, declaring such probate or acknowledgment ; or when any /ewe covert, party to such deed or other instrument of writing, shall be privately examined before such ambassador, public minister, consul, or commercial agent, and a certificate of such examination shall be annexed as aforesaid, such pro- bate, acknowledgment, and examination being produced before the court of pleas and quarter-sessions of the county wherein the land or other property is situated, may be ordered by the court to be registered, together with the said deed, bill of' sale, 21 242 DEEDS AND CO.\\-EYANCES. [ChAP. 37. or Other instrument; and the deed or instrument so registered shaU have the same validity, as if the probate, acknowledg- ment, and examination had been had in open court. Doeasofhus- 8. All conveyances in writing and sealed by h^«>^^»J^^J b.ndaudwife if for lands, and duly proved, or by them personally t^rX^e^y acknowledged before one of the judges of the ^»P-"'"«^ o;-"^" eKami!;ed.-R. ■ ^^^^^^ or in the covut of the county where the land '■"■''''■'■ Ueth, the wife being first privily examined before said judge or some member of the county court, appomted by the court for that purpose, whether she doth voluntardy assent thereto and duly registered, shall be valid m law to convey all the estate, right and title which such wife may have m the said lands, tenements, and hereditaments. r,ovi.ion.hen 9. Provided, nevertheless, that where any such ^""y';^'^"^^ wife is sick or aforesaid shall be acknowledged by the husband, m pimed X'>-«Srby the oath of one or more vyitnesses before '^ jf S^ as aforc- r'"'?-,^n said or county court where the land lieth, and it shall be rep- '■'■''''■''■ resented to the judge or county court, that t'lc -ife is a res - dent of any other country or county, or so aged or iit urn that she cannot travel to the said judge or county court to make such acknowledgment as aforesaid, the judge or county com may direct the clerk of the county court where such land lieth, to issue a commission to two or more commissioners lor recei^ving the acknowledgment of the deed of ,uch Jeme covert for passhig her estate in any lands, tenements, or heredita- meiSs; an"d such deed, acknowledged before them, alter they have examined her privily and apart from her husband touch- ing her consent, and certified to the county court, to which the commission shall be returnable, shall, by order of he court be registered with the commission and returns, and shall be as eftectual as if personally acknowledged before the judge or county court by such feme covert. Form of com- 10. The clerk of the court of pleas and quarter-sessions mission to take , ,. . -j commission in the followmg form, namely,— FnTon IfZ^e The State of North Carolina. covert.--b.S. rn x and B. — Greeting : , " ° Whereas, F. G. hath produced a deed of conveyance made to him from H. I. and K. his wife, of a certain tract or par- cel of land, lying and being in the county of m our State and procured the same to be proved (or acknowledged by th^ said^I. I.) before J. L., one of the judges ot our su- preme court, (or superior court, or in the court of our sa d county of C. as the case may be, and it being represented to our said judge (or to our said court) that K., wife "f i^^^ ^a,d H. I., is not an inhabitant of the county, (or ot our State, or is so aged and infirm that she cannot travel to our said judge, or court of our said county of , to be privily «^;""'- ^ ^^ to her free consent in executh.g the said ^^''''"rf'^f-J'^^^ ve, that we, in confidence of your prudence and fidelity, have appointed you, and by these presents do give unto you, or to any two of you, full power and authority to take the private . 37, s. 11. Chap. 37.] deeds and convey ai>-ces. 243 examination of the said K., wife of the said H. I., concerning her free consent in her executing the said conveyance, and therefore we command you, or any two of you, that, at such certain day and place as you shall think lit, you go to the said K., if she cannot conveniently come to you, and privily, and apart from her husband, examine her whether she executed the said conveyance freely and of her own accord, without fear or compulsion of her husband ; the examination being distinctly and plainly written on the said deed, or on some paper annexed thereto. And when you shall have so taken the examination, you are to send the same, closed up, under the seals of you, or any two of you, together with this writ, unto our said court, to be held for the said county at on the day of next ensuing. Witness M., clerk of our said court, at office, the day of A. D. 11. All conveyances, which may be made by any person. Conveyance under a power of attorney from any /ewe covert by her freely ""der power of executed jointly with her husband, shall be valid to all intents banianTwife" and purposes, to pass the estate, right and title which such ^^"f '"S-'^", feme covert may have in such lands, tenements, and heredita- 12. ' ' ' '" ments within this State, as are mentioned or included in such power of attorney. 12. Any deed for the conveyance of, or power of attorney Another mode to convey, lands in this State, made by husband and wife, who j|_''Jj,'^".;}.™^^"",^ may be without the limits of the United States, which shall in foreign parts. be personally acknowledged before the mayor or other chief ~^- ^- ''^ ^^' '• magistrate of any city, tTie wife being first privily examined by such mayor or chief magistrate, whether she doth volunta- rily assent thereto, and an attestation thereof indorsed thereon or aflixed thereto, under his official seal, shall, upon being ex- hibited to the court of pleas and quarter-sessions of the coun- ty where such land lies, or one of the judges of the supreme court or the superior courts of this State, be ordered to be reg- istered, and shall be registered, in the same manner as if such deed or power had been proved or acknowledged in open court of the county where the lands lie, and shall be valid in law to pass the estate, right and title of the wife to all such lands, tenements, or hereditaments so conveyed or to be conveyed, and when registered shall be received in evidence without farther proof. 13. All powers of attorney made by any feme covert resid- Powers of atfy ing in this State jointly with her husband for the conveyance ^j/com-e7m^ of any estate, right, or interest in lands situate in this State, proved and rig- shall be acknowledged or proved, and she shall be privily ex- Jfeelis'' "^ amined thereto in the same manner as is prescribed for deeds of conveyance of her lands, and such powers of attorney with the certificates shall be registered in like manner and place. 14. Every power of attorney, wherever made, or concerning powci-s of at- whatsoever matter, may be registered on acknowledgment or to™<'y.. i";^ probate of the same in the county wherein the property or es- '"°"' '" tate may be situate, if it concern the conveyance thereof ; and if the same do not concern the conveyance of any estate or 244 DEEDS AND CONVEYANCES. [ChaP. 37. property, then in the county where the attorney may reside, or the business is to be transacted. And such powers of attor- ney as do not concern the conveyance of land by a/twe covert, How proved thereof it may be necessary to take the acknowledgment or out of State.— probate out of the State, may, besides the other modes pro- ?6.— mercies, "^'i^ed in this chapter, be acknowledged or proved before any s. 2, 3. ' ' 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 ofKce of such officer, shall, on the same being produced to the court of pleas and quarter-sessions of the proper county, be ordered by the court to be registered, and shall be registered. Deeds, &o., \o. In all cases of the probate of any deed or other instru- ■wheifsubscrib- |nent, required or allowed to be registered, having a subscrib- d"ina sliall issue, returnable to the first day of the next term, and be served in manner aforesaid ; but if the defendant cannot be found, then proclamation shall be publicly made at the court houioe for the party to appear and answer as commanded by the subpoena, and notice of the suit shall be given in such newspapers as the court may order, for six weeks ; and in the mean time such preparatory rules and orders in the cause may be made, as shall be necessary to prepare it for trial : when the court may determine ex parle, if necessary. Provided alwaz/s, that the Material facts material facts charged in the petition or libel shall be submit- jubrmtt^d to a ^^j ^^ ^ j^^j.^^ ^^p^^^ whose verdict and not otherwise, the court 39, s. B. shall decree. Cause of com- 7. No petition, except in the cases mentioned in the follow- LT existed v'J"g section, shall be sustained under this chapter, unless the six months, petitioner shall state and swear, that the facts, the ground of fhi-eeyeMs.— '^i^ o^ '^^1' Complaint, have existed to his or her knowledge at E.S. 0.39,5.6. least six months prior to the filing of the petition; nor shall any person be entitled to sue, unless he or she shall have re- sided within this State three years immediately preceding the exhibition of the petition. Provided, that the said three years' residence shall not be j-equired in cases sued under the fourth section of this chapter. bancUsre-" , .^•^" '^'^ '^'^^^^^ "^^''''^''® ^^'^^^ ^'^^'^ ^'^ ^ sufficient cause for a moving his pro-i<^i'^'0''c^ (absolute, or from bed and board) with alimony, the may^'be'flied" "^'^^^^ may exhibit her petition or libel at any time, in case her forthwith and husband is then removing, or about to remove his effects from que?tirX7'^'*'^'^ ^*^^^' ^^ ^^^ ®'^^'^ likewise state and swear, that she doth Y "verily believe that she is entitled to alimony, and that by de- laying her suit, she will be disappointed of the same, by the removal of her husband's property and effects out of the State. And in such cases any judge may, thereupon, make an order of sequestration or otherwise, as the purposes of justice may seem to require, ositions amf ''" . ^- ^"''"^ parties' may read depositions on the trial, as in causes costs.-K. S. c. in equity, and the court may decree by what party, the costs, 39, s. 7. or any part of them, shall be paid. Barstodivo*c 10. If, in any suit for divorce for the cause of adnltcrv. it on account of „i, ii i i ±\ i. a\ i • .-/t ■ ■ •. n , \ nduitery.-U. ^"au be proved that the plamtifli has been guilty of the like S. C.39, s. 8. crinne, or has willingly admitted the defendant i'nio conjugal society or embraces after he or she knew of the criminal'fact ; or that the husband, if the piaintifl; allowed of his wife's ])ros- titution, or exposed her to lewd company whereby she became Chap. 39.] divorce and alimony. 253 ensnared to the crime aforesaid, the same shall be a good de- fence, and a perpetual bar against the said suit. 11. The court after hearing any cause, may determine the Deoroc, when same as to law and justice shall appertain, by either dismiss- and of what ing the petition or libel, or decreeing a divorce and separation from bed and board, or from the bonds of matrimony, or that the marriage is null and void ; or that the wife shall have ali- mony agreeable to her prayer ; and the court shall have power also to decree alimony to the wife in the case of absolute divorce upon the petition of the wife ; and after a sentence nullifying or dissolving the marriage, all and every the duties, rights, and claims of the parties, in virtue of said marriage, shall cease and determine; and the plaintiff, or innocent per- innocent party son, shall be at liberty to marry again. Provided aliuays, that "jj^,,™*"''' nothing herein contained shall be construed to render illegiti- Children not mate any child in esse, or born of the body of the wife during mafe!— Rfs"o. coverture. 39, s. 9. 12. The husband, against whom alimony or separate main- Alimony, how tenance may be decreed, shall give good and sufficient secu- forced.— R. s"' rity in open court, to be approved by the court, for the faithful c. 39, s. lo. performance of the decree ; and, in case of failure, shall stand committed until the order or decree of the court is complied with ; or the court may direct execution to issue for the money decreed, and a writ of venire to a jury to lay off and allot the real or personal estate decreed to the wife. ( 13. When the court, on petition of the wife, shall decree a Wife divorced divorce from bed and board, the wife so divorced shall have j^^^j'^jjj {J"^^ capacity to acquire, retain, and dispose of, by deed or will, or property tliere- in any other manner, all such property as may thereafter be "'^''"" "^quired; procured by her own industry, or may accrue to her by descent, sued alone.— devise, gift, bequest, or in any other manner ; and such prop- ^^ ^- *=• ^^' *• erty, during such time as the parties shall remain unrecon- ciled, shall not be liable to the power, dominion, control, or debts of her husband ; but, on her death without a disposition by her, shall be transmissible as though she were unmarried; and the wife may sue and be sued, without joining her hus- band, and may claim redress for, and be made liable upon, contracts and injuries thereafter made and done, as though she were a/eme sole. \ I 14. When aiiy married v.'oman shall file her petition for i,, snitfor alimony, and pray that such property as she may thereafter i^i"™".^'-'^''"''' acquire may be also secured to her, the court may, if deemed that petitioner proper, decree that she may sue and be sued in her own name, "?='? ''^■*'9 ",."'^ without joining the name of her husband, and that all such acquired prop- property as may thereafter be procured by her own industry, ^'"'^'vf"^p"lJ' or may accrue to her by descent, devise, gift, bequest, or in any o. z^\s.\i. other manner, shall be secured to her, and shall not be liable to the dominion, control, or debts of her husband; but on her death, without a disposition by her by will, deed, or otherwise, shall be transmissible iii the sanie manner as if she were a feme sole. 22 254 DRAINING AND DAMMING LOW LANDS. [ChAP. 40. Alimouy,pend- 15. In petitions for divorce and alimony, or for alimony, c"!!"''"^^^^' where the matter set forth in such petition shall be sufficient to entitle the petitioner to a decree for alimony, the court may in its discretion, at any time pending the suit, decree such reasonable alimony for the support and sustenance of the pe- titioner and her family, as shall seem just, under all the cir- Appeai from cumstances of the case. And from such interlocutory decree snpreme'court there may be an appeal to the supreme court, but that court shall reexamine onlj' the sufficiency of the petition to entitle the petitioner to relief. Appeal from 16. In every case of application for a divorce, or for alimo- supremrcoart "3^' ^"'^ ^ Unol judgment thereon, the party against whom judgment is rendered may appeal to the supreme court, whose duty it shall be, according to the facts ascertained in the court below, to make such decree as shall be just; and such appeal Suits removed may be granted without security, if the situation of the ap- coun^— R.^S. 0. P^^'^"t shall render it necessary for the purposes of justice. 39, s. 13.— And any suit may be removed to the supreme court, before a ' "■ ■ hearing, in the same manner, and in the like state of plead- ings, as suits in equity. 17. No defendant, or party offending, from whom a divorce shall be obtained from the bonds of matrimony, shall be allow- marry agam ed to marry again, during the life of the plaintiff or innocent th"otfierpa°rty. person ; and if such offending party shall so marry, he or she — R. S. c. 39, shall be deemed guilty of felony, and on conviction shall be punished as persons convicted of bigamy. Offending par- ty divorced, not allowed to s. 14. Sect. 1. Absent parties, 1 D.& B. Eq. 566. Sect. 2. Adultery : discretitmal Jbr, 1 Dcv. Eq. 352; single act of, 2 Hawks, 189; nfter separatum, 2 Ire. 65, 5 lb. 674, 13 lb. 90, Fraud, 3 Dev. 585, lb. 548, Jdiocy, 3"lrc. Eq. 91, 2 lb. 470. Sect. 5. Fm-m of petition, 2 D. & B, 377, lb. 64, Amemkd petition, 13 Ire. 90. Se- questration, 1 Hay. 482, lb. 347. Sect. 6. Form of issues, 7 Ire. 464. Confession, 10 Ire. 506, Sect. 10. Alimony, 6 Ire. 293; pend. lite, 1 Joues, Eq. 118. CHAPTER 40. DRAINING AND DAMMING LOW LANDS. Section 1. Mode of proceciling by petition for draining or damming low lands. Court to appoint seven commission- ers. 2. Their duty. 3. Slinll report to court. On payment of damages and costs, easement to vest in fee. No canal or dam made througli yard, &c.; or to injure mill, or create nuisance by stjignant wa- ter, &c. Section 4. Fences or paths across canal or im- bankment made by proprietor, when. 6. Earth for dam, how taken; owner of land may adjoin his own dam, when. 6. Commissioners to designate width of land, for use of canal, &c. Width fur dam not to exceed five times its base. 7. Earth excavated for canal, removed or levelled. Chap. 40.] draining and damming low lands. 255 Section 8. Owner of land not to open drain within thirty feet of canal. 9. JIo Je of proceeding to drain into a ca- 3ial. Not to he cut into if its value be endangered. Unless the danger can be avoided by imposing duties or labor. And no final decree made for cutting, till the work is done and the efl'ect seen. 10. Commissioners to assess- and appor- portion labor for repairing canals. Report whea confirmed, to stand 1 Section 1 as a judgment against parties and privies. 11. Jlode of proceeding for joint repairs of canals. 12. Persons failing to work, how recovered against. 13. Assignees, &c., bound to repair as original owners. 14. All persons interested, to contribute to repair dams, &c. Mode of proceeding. 15. Compensation of commissioners. Costs of appeal paid as court directs. 1. Any person, owning pocosin, swamp, or flat lands, or Mode of pro- owning low lands subject to inundation, which cannot be ti^tbnfor dmml mgoruammni;; conveniently drained or embanked so as to drain otF or dam i out the water from such lands, except by cutting a canal or '''^^' '""'**■ erecting a dam through or upon the lands of other persons, may by petition apply to the county or superior court of law of the county, in which the lands sought to be drained or em- banked, or some part of such lands lie, setting forth the par- ticular circumstances of the case, the situation of the land to be drained or embanked, to what outlet and through whose land he desires to drain, or on what lands he would erect his dam, and who are the proprietors of said lands ; whereupon a copy of the petition shall be served on each of the propri- ^°."^' *" ''P" i 1 iU 1 ■ f ii i-i- iu J- 1 II pomt seven etors, and, on the hearing ot the petition, the court shall ap- comm'rs.— point seven disinterested freeholders for commissioners to be ^ ^g. ^- *"> '*■ ^' summoned and sworn by the sheriff on the premises. s. i, 2. ' 2. The commissioners, or a majority of them, on a day to Duty of com- be appointed by the sheriff, of which each proprietor of land R.'f.'TTo sTi. aforesaid is to be notified at least five days beforehand, shall— 1S52, c. 07, meet on the premises and view the lands to be drained or em- ^' ' "" banked, and the lands through or on which the drain is to pass or the embankment to be erected, who shall determine and report whether the lands of the petitioner can be conven- iently 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 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 circum- stances of the case, and providing as far as possible for the eft'ectual drainage or embankment of the water from the pe- titioner's land, and also securing the defendant's lands from inundation, and every other injury to which the same may be probably subjected by such canal or embankment ; and they shall assess, for each of the defendants, such damage as in their judgment will fully indemnify him for the use of his land in the mode proposed. o. The commissioners shall report, in writing under their si'^^" report to ' ' . ° court. 256 DRAINING AND DAMMING LOW LANDS. [ClIAP. 40. On payment of hands, the whole matter to the court, who shall confirm the coS^ITsemeiit same, unless good cause be shown to the contrary ; and on to vest in fee. payment of the damages and costs of the proceedings, the No canal or court shall order and decree that the petitioner may cut the dam made i • i.i i i , • ,i ^ t , , through yard, canal or raise the embankment in the manner reported and de- &c:orto'injure termined by the commissioners; and thereupon the petitioner mill, or create i n i, • i • r • i £• ,i ' ^ '. , ■,, nuisance by Shall be seized in lee-simple of the easement aforesaid. Pro- &c^^R^™'"' '"^'^'^^■' ^'owever, that, without the consent of the proprietor, such 40°'s.2. — 1852^ canal or embankment shall not be cut or raised through or on c. 57, s. 1, 2. his yard or curtilage, nor be allowed when the same shall in- jure any mill, by cutting off or stopping the water flowing thereto ; nor shall said dam be allowed so as to create a nui- sance by stagnant water, or cut off the flow of useful springs or necessary streams of water, or stop any ditches of such pro- prietor when there is no freshet. rc"o';fc°a7afor '*" ^"^ proprietor, through or on whose land such canal embankment, niay be cut or embankment raised, may put a fence or make prietor/wC P'^*'^^. across the same, provided the usefulness thereof be not — E. S. c. 40, impaired ; and the owner of the canal or dam, his heirs and 5r^s."iT^' "' assigns, shall at all times have free access to the same, for the purpose of making and repairing them ; doing thereby no un- necessary damage to the lands of the proprietors. how'tik" •'''"" ^' "^'^^ earth necessary for the erection of the dam may be owner^oMand taken from each side of it, or wherever else the commissioners may adjoin his may designate and allow. And such dam may be removed T^en.'""' by the proprietor of the land, his heirs or assigns, to any other part of his lands, and he may adjoin any dam of his own thereto, if allowed by the court on a petition and such pro- ceedings therein as are provided in this chapter, as far as the same may apply to his case. Provided always, that the use- fulness of the dam will not be thereby impaired or endan- gered. de°sT^ate'° 6. The commissioners shall designate the width of the land widtTTofland to be left on each side of the canal or dam, to be used for the can.T&c! protection and reparation thereof, which land shall be alto- Width for dam gethcr under the control and dominion of the owner of the fiveumes'iu ^^"^^ °^ '^^™' except as aforesaid. Provided, hoiccver, that, in base. 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. fdforc'a'^iaVrt '^ ' '^'^^ ^^''"^ excavated from the canal shall be removed moved orldv- away Or levelled as nearly as may be with the surface of the elied. adjacent land, unless the commissioners shall otherwise spe- cially allow. l^nTnotTo"'^ ^" "^^^"^ proprietor of any swamp or flat lands, through which ofien drain a Canal passes, shall not have a right to open or cut any drain feet''of canal ^^'^''V' ^'^'''^ ^^^^^ thereof, but by tlm consent of the owner. Such proprietor, however, and other persons may cut into such canal in the manner hereinafter provided. Mode of pro- 9. Any person, desirous of draining into the canal of an- drain'into a o^'^'''" P^'rson as an outlet, may do so in the manner lierein- canal. before provided, and, in addition to the persons directed to Chap. 40.] draining and damming low lands. 257 be made parties, all others shall be parties, through whose lands or canals the water to be drained may pass till it shall have reached the furthest artificial outlet. And the privilege of cutting into such canal may be granted under the same rules, and upon the same conditions and restrictions, as are provided in respect to cutting the first canal. Provided, how- jsctAnW cut ever, that no canal shall be allowed to be cut into another, if 1^"' °.,',j',[f„^j'ro!f thereby the safety or utility of the latter shall be impaired or unless tiio dan- endangered. And provided further, that, if such impairing and fy^ij"", ^^ ;,„_ danger can be avoided by imposing on the petitioner duties posing riu'ties or labor in the enlarging or deepening such canal, or otherwise, XnlTn^iinai the same may be done ; but no absolute decree for cutting decree for cut- such second canal shall pass, till the said duties or work so '"oJkXie'auli imposed shall be performed and the effect thereof is seen, so eflfects seen. as to enable the commissioners to determine the matter wheth- er such second canal ought to be allowed or not. 10. Besides the damages which the commissioners may Comm'rs to a^- assess against the petitioner for the privilege of cutting into j?^^ j^"^,^"^^"'^ such canal, they shall assess and apportion the labor which the repixiring ca- petitioner and defendants shall, severally, contribirte tovi'ards g'^pg^.j ^,,3„ repairing the canal or canals into or through which the peti- confirmed, to tioner drains the water from his lands, and report the same to ment against^" court; which when confirmed shall stand as a judgment of the parties, &c. the court against each of the parties, his executors and ad- ministrators, heirs and assigns. 11. Whenever the canals or any of them, for the reparation Mode of pro- of which more than one person shall be bound under the pro- |ofQ(,"J|p°[rs of visions of the preceding section, shall need to be repaired, canals. any of the persons so bound may notify the others thereof, and of the time he proposes to repair the same ; and there- upon each of the persons shall jointly work on the same and contribute his proportion of labor, till the same be repaired or the work cease by consent, 12. And in case the person so notified shall make default. Persons failing any of the others may perform his share of labor and recover recovered against him the value thereof, on a scire facias to be issued against. for such default; in which shall be stated on oath made before the clerk, the value of such labor; and unless good cause to the contrary be shown on the return of the writ, the court shall render judgment for the same with interest and costs. 13. All persons, to whom may descend, or who may other- Assignees, &c., ' 1 1 1 • 1 1 t !• ,1 ■ bound to repair Wise own or occupy lands draineci by any canal, for the priv- as original ilege of cutting w^hich any labor for repairing is assessed, owners. shall contribute the same, and shall be bound therefor to all intents and purposes, and in the same manner and by the same judgment, as the original party himself would be, if he occu- pied the land. 14. Whenever there shall be a dam, canal, or ditch, in the All persons ir.- repairing and keeping up of which, two or more persons shall cfl'ntiihute to be interested and receive actual benefit therefrom, and the du- '•|'P'i''''''i''is ties and proportion of labor, which each one ought to do and "■ °' 22* 258 ELECTORS OF PRESIDENT AND VICE-PRESIDENT. [ChAP. 41. Mode of pro- perform therefor, shall not be fixed by agreement, or by the ceecing. mode already in this chapter provided for assessing and appor- tioning such labor, any of the parties may have the same as- sessed and apportioned by petition to the county court of the county in which such duties and labor, or some part thereof, are to be performed, and the proceedings therein shall be by commissioners, in the manner in this chapter already provided. Compensation 15. The commissioners shall be paid each two dollars per CotteTfappeal ^^Y ^°^' ^'leir service, to be taxed among the costs ; and where paid as court either party shall appeal to the superior or supreme court, the ^^'^^^- costs of the appeal shall be paid as the court may direct. CHAPTER 41. ELECTORS OF PRESIDENT AND VICE-PRESIDENT. Section 1. State divided iuto ten electoral dis- tricts. 2. Persons qualified to vote for electors. Time aud place of election. Certifi- cate of poll and rettirn. By whom made. Penalty of five hundred dol- lars in case of failure. 3. Governor to proclaim electors and ■warn them to attend at Raleigh; to deliver them a list of votes, and lay one before Assembly. Sectios 4. Wicn and whefe electors shall meet to vote. 5. In case of vacancy in offices of presi- dent and vice-president, governor to issue proclamation for election. 6. Penalty on electors failing to attend. On sheriff refusing to hold the poll, making false return, &c. 7. Compensation, &c., of electors. 8. May supply vacancies in their body. 9. Pay of sheriff for holding elections. State divided 1- TiiE State shall be divided into ten districts for the pur- tora/di'stricts. P°^'' "^ choDsiiig electors for President and Vice-President of — E. S. c.4i,s. the United States, in the following manner, to wit: The 1.— 1852, c. 66. gQ^j„(^jgs (,f Currituck, Camden, Pasquotank, Perquimans, Gates, Chowan, Hertford, Northampton, Halifax, Martin, Bertie, Washington, and Tyrrell, shall compose the first dis- trict. The counties of Hyde, Beaufort, Pitt, Craven, Jones, Lenoir, Wayne, Greene, Edgecombe, Onslow, and Carteret, the second district. The counties of New-Hanover, Bruns- wick, Columbus, Bladen, Sampson, Cumberland, Robeson, Duplin, and Richmond, the third district. The counties of Wake, Franklin, Warren, Granville, Orange, Nash, and Johns- ton, the fourth district. The counties of Person, Caswell, Alamance, Chatham, Randolph, Guilford, Moore, and Mont- gomery, the fifth district. The counties of Stokes, Forsyth, Rockingham, Davidson, Davie, Yadkin, Surry, Iredell, Alex- ander, and Ashe, the sixth district. The counties of Catawba, Gaston, Lincoln, Mecklenburg, 'Rowan, Cabarrus, Union, Anson, Stanly, and Clcaveland, the seventh district. The counties of Wilkes, Watauga, Caldwell, Burke, Rutherford, Chap. 41.] electors of president and vice-president. 259 McDowell, Henderson, Buncombe, Yancy, Haywood, I\Iacon, Cherokee, Jackson, and Madison, the eighth district: and the State at large, the ninth and tenth districts ; all which districts shall be denominated electoral districts. 2. The persons qualified to vote for members of the house Persons quali- of commons of the General Assembly in said counties respect- efectors^tfme ively, shall meet on the Tuesday next after the first Monday and place of of November, one thousand eight hundred and fifty-six, and '^'®'^'""^' successively every four years thereafter, at the places, by law established, in their several counties, for the election of mem- bers of the General Assembly, and there give their votes by ballot for ten discreet persons, being freeholders, one of whom shall actually reside within each of tlie said electoral districts ; the polls shall be held in the same manner and by the same officers, and under the same rules and regulations, as the polls for the election of members of the General Assembly ; and the sheriffs of the several counties, or other officers duly authorized, who shall have held the polls, within two days after the day of holding the same, (except in the counties of Cnrrituck, Carteret, and Hyde, in which counties it shall be within five days,) shall ascertain by faithful addition and com- parison, the number of votes for every person who shall have been voted for as an elector, and shall certify in words, and not in figirres, under their hands in manner and form follow- ing, to wit: I, A. B. sheriff of county, (or deputy- Certificate of sheriff; or other officer duly authorized, as the case may be,) P°" ""'^ '■''^■ do hereby certify, that an election was held, on the day and at the places fixed by law within the said county, for electors of President and Vice-President of the United States, and that the number of votes, herein specified, opposite the names of the several persons following, was given for such persons as electors, for the State of North Carolina, of President and Vice-President of the United States, namely : For D. C. (here state the number of votes given for D. C.) : For E. F. (here state the number of votes given for E. F., and so on until the list of persons voted for and the number of votes shall be com- plete). Given under my hand, this day of in the year of our Lord eighteen hundred ; and two fair copies of such certificate and return shall be made by the sheriff", (deputy-sheriff or other officer, as the case may be,) By whom under his hand, one of which shall be delivered to some one "^'^'^" person among the ten, who shall have therein the greatest number of votes given at the election poll so held by the sheriff or other officer so certifying, and the other shall be re- turned to the governor within twelve days after the day of holding the said polls. And in case of failing to make such Penalty of ssoo returns within the time herein prescribed, the sheriff or other j,re'?-R."s.*^!'" ofiicer, whose duty it shall be so to do, shall forfeit and pay to *i. "• 1.2.— the State the sum of five hundred dollars, to be recovered by |s52|c.55i the attorney-general in the superior court for the county of I652', c. 159. Wake. 260 ELECTORS OF PRESIDENT AXD VICE-PRESIDENT. [ChAP. 41. Gov. to pro- 3. The governor, within three days after the expiration of and wfmuhem ^'^^ ^^"^^ ^^^ the receipt of such certificates and returns, shall t''-i'fendat proceed to ascertain therefrom the ten persons for whom the liver'Sie'maiist §''^'1*^'"** number of the whole number of votes throughout the of votes and State shall have been given; and at the expiration of that Assembly.—" t'"^*^ '^^ ^'^^ll issue his proclamation, and cause the same to be K-^-cii, s. published in three newspapers of the city of Raleigh, wherein s.'T. ''^' 'he shall set forth the names of the persons duly elected as electors, and warn each of them to attend at the city of Raleigh on the first Wednesday in December then next ensu- ing, to vote for President and Vice-President of the United States ; and he shall, on or before the said first Wednesday in December, make out three lists of the names of the said ten persons, and cause the same to be delivered to them, as directed by the act of congress ; and he shall lay before the General Assembly, for their inspection, the certificates by him received from the sheriffs as aforesaid. \\Tienand 4. The ten persons for whom the greatest number of votes shall m^eet to ^ throughout the State shall appear to have been given, shall be vote.— R. s. c. electors, for and on behalf of the State, to vote for President ' ^' " and Vice-President of the United States ; and shall assemble in the city of Raleigh, on the first Wednesday of December, one thousand eight hundred and fifty-six, and on the first Wednesday of December next after their appointment in every year in which they shall be appointed, and then and there give their votes for President and Vice-President of the United States. Ill case of va- 5. Whenever the offices of President and Vice-President of orpreiidrS""' the United States shall both become vacant, the governor, and vice-presi- upon receiving a notification of such vacancy from the secre- fo&le proX tai-y of state of the United States, shall forthwith issue his Illation for cieo- proclamation, directing the sheriffs of the several counties, or i^sTi!^' ''' '^' other proper officers, to hold elections, within their respective counties, for the appointment of electors of President and Vice-President of the United States, on the day prescribed for holding the stated elections of the year in which such vacancy may happen. Prouidcd, that there shall be a space of two months between the date of such notification and the said first Wednesday of December; but if there should not be such space, the governor shall specify in his proclamation that the electors shall be appointed or chosen in the year next ensuing the date of such notification, on the day aforesaid ; and the electors, appointed in the manner by this section directed, shall meet at the city of Raleigh on the first Wednesday of Decem- ber after their appointment, and give their votes for a Presi- dent and Vice-President of the United States. Penalty on 6. Each elector, chosen with his own consent previously ti^atSnd':"""" signilii^'d, f>»'ling to attend and vote for a President and Vice- President of the United States at the time and place herein directed, (except in case of sickness or other unavoidable acci- dent,) shall forfeit and pay four hundred dollars, to be Chap. 42.] entries and grants. recovered by the attorney-general, in the superior court of Wake county. And any sherifF or other officer duly author- ized for that purpose, refusing to take the poll when thereunto required by a person qualified to vote, or making or signifying, or delivering or transmitting a false certificate or return of an election, or making any erasure or alteration in the poll books, or refusing to suffer any candidate or person qualified to vote, at his own expense to have a copy of the poll books, shall for- feit and pay two hundred dollars, one half to the use of the person who will sue for the same, and the other half to the use of the State. 7. The electors shall be allowed for their travelling to and from the city of Raleigh and their attendance, the same com- pensation as may be allowed members of the General Assem- bly, and shall be entitled to the same privileges. 8. In case any elector should, by reason of sickness or other cause, not attend and give his vote as herein prescribed, the other electors, then present, shall appoint some other person to supply his place ; and the person appointed, shall be taken and held to all intents and purposes as an elector to vote for Presi- dent and Vice-President of the United States. 9. The sheriff' and other ofRcers, for holding said elections and conveying duplicate certificates to the governor, shall be allowed the same fees, and the same 7?er dieni pay for travel- ling, as are allowed to them in elections for members of con- gi'ess. 261 On slierifls re- fusing to hold poll, or making false vetiini, &c.— R. S. c. 41, s. 5. Compensation and privileges of electors. — E. S. c. 41, S.6. May supply va- cancies in their body. — R. S. c. 41, s. 7. Pay of sheriff for holding elections.— R. S. c. 41, s. 6. CHAPTER 42, ENTRIES AND GRANTS. Section 1. What lands subject to entry. In what cases land covered by navigable waters may be entered. Regulation of line on water. Price of such land. Owners of wharves on such land may enter it. Lands covered by lake water not to be entered. Nor swamp land of two thousand acres in one body. Marsh or swamp land of fifty acres entered in certain cases. 2. Entries and grants of laud not author- ized, void. 3. Entry-takers and surveyors appointed. 4. When a vacancy, clerk of county court to act as entry-taker. 5. Bonds of surveyors and entrj'-takers, &c. Entry-taker to keep office at court house. Section 6. Surveyors may appoint deputies. 7. Price at which lands may be en- tered. 8. When entry money to be paid. Time of payment on certain entries ex- tended. Proviso. 9. On failure to pay the price, subsequent enterer entitled. 10. In case of lapse same person not to reiinter within one year. 11. Entries, how made, and warrants issued. 12. Surveys, how made and returned. Chain carriers appointed and sworu. Special surveyor, when appointed. 13. Surveys to bo according to priority of entry. 14. Wan'ant of survey, when lost dupli- cate may be issued. 262 ENTRIES AND GRANTS. [Chap. 42. SECnojf 15. On ilenth, &c. of entry-taker, succes- sor to issue warrants. 16. Entry-takers, how to make entries for themselves. 17. Surveyors, how to have surveys made for themelves. 18. Entry-takers to make annual returns to secretary of State. 19. Penalty for failure, how recovered. 20. Public treasurer to receive entry money. 21. Grants to issue, on what certificates. 22. Grants, how authenticated. All grants to be registered. Copies may be registered. 23. How to issue on death of enterer. 24. Seal of grant lost, may be renewed. Sectiox 25. Certain grants heretofore issued to surveyors, &c., confirmed. 26. Certain other grants declared valid. 27. Grants on entries extending into two or more counties, coafimied, 28. Mistakes of surveyor and secretarj-, how corrected. Application to he made in tluree years after date of grant, 29. Persons aggrieved by issuing of pa- tents, how to proceed. 30. Proceedings and judgment of court in such cases. Copy of proceedings vacating gi"ant, to be filed in secre- tary's ofiice. 31. Chapter not to apply to Cherokee lands. What lands subject to en- try, — R. S. c. 42, s. 1, 2, 3, 8. —1846, c. 36. In what cases, land covered by nav. waters may be enter- ed.— 1654, c. 21, s. 1, 2, 8, 4. Regulation of line on water. Price of such land. Owners of wharves on such land may enter it. Lands covered by lake water, not to be en- tered. Nor swamp land of two thousand acres in one body. Marsh or swamp land of fifty acres, eu- 1. All vacant and unappropriated lands belonging to the State, sliall be subject to entry by any citizen thereof, in the manner hereinafter provided, except : — (1.) Lands covered by navigable waters. Provided, how- ever, that persons owning land on any navigable sound, river, creek, or arm of the sea, for the purpose of erecting wharves on the side of the deep water thereof, next to their lands, may make entries of the lands covered by water, adjacent to their own, as far as the deep water of such sound, river, creek, or arm of the sea, and obtain title as in other cases. But persons making such enti-ies shall be confined to straight lines, includ- ing only the fronts of their own tracts, and shall in no respect obstruct or impair navigation. And when any such entry shall be made in front of the lands in any incorporated town, the town corporation shall regulate the line on deep water, to which entries may be made. And for all lands thus entered, there shall be paid into the ti'easury the sum of one dollar per acre. Also, when any person shall have erected a wdiarf on public lands of the description aforesaid, before the passage of this section, such person shall have liberty to enter said land, in- cluding his wharf, under the restrictions, and upon the terms above set forth. (2.) Lands covered by the waters of any lake, or which, though now covered, may hereafter be gained therefrom by the recession, draining, or diminution of such waters, or have been so gained heretofore, and not lawfully entered. (3.) Marsh or swamp land, where the quantity of land in any one marsh or swamp exceeds two thousand acres, or where, if of less quantity, the same has been surveyed by the State, or by the president and directors of the literary fund of North Carolina, with a view to draining and reclaiming the same. (4.) Provided, that marsh or swamp lands, unsurveyed as aforesaid, not exceeding fifty acres in one body, though lying Chap. 42.] entries and grants. 263 within a marsh or swamp of a greater number of acres than tered in certain two thousand, may be entered, when the same shall be situ- '^'''^'^'' ated altogether between the lines of tracts heretofore granted. Entries and 2. Every entry made, and every grant issued, for any lands grants not not herein authorized to be entered or granted, shall be void. Void.— R. s. c. 3. The court of pleas and quarter-sessions may, when they ^2, «• 1, f , .^ ■,, ' . . •'.'-,.•' Kntry-takers deem it necessary, elect one person to receive entries ot claims and surveyors for lands within the county; and shall also elect not more «PPoii«ed.— K. than two persons, properly qualified, to be surveyors of lands ••-'•• within the same; and any person elected shall hold his office for four years. 4. Where a vacancy exists in the ofHce of entry-taker, the 'ftliere a vacau- clerk of the court of pleas and quarter-sessions shall act as county court entry-taker, until such vacancy be filled by a regular appoint- to act as entry- ment; shall take charge of the books belonging to the office; c.-^i'V. 5'. discharge all the duties and receive the emoluments; and shall be subject to the rules, regulations, and penalties prescribed by law for entry-takers. 5. Every surveyor shall enter into bond in the sum of four Bonds of sur- thousand dollars, and every entry -taker into bond in the sum ^take'rsf 1"^ of two thousand dollars, payable to the State of North Caro- Entry-t.aiier to Una, with sufficient security, for the faithful discharge of the gourttouse!— duties of his office. And the entry-taker shall keep his office R. S.c. 42, s.G; at the court house of his county, or within one mile thereof, on ^^^^' ®' ^^' pain of forfeiting one hundred dollars to the use of the county, to be sued for by the county solicitor. 6. Every surveyor may appoint deputies, who shall, pre- Surveyors may vious to entering on the duties of their olfice, be qualified in a "les.— r.'^sJ'c." similar manner with the sarveyor; and the surveyor making ^a, s. 7. such appointment shall be liable for the conduct of such depu- ties, as for his own conduct in office. 7. Twelve and a half cents shall be paid to the treasurer for r'nce at yiiich every acre of land that may be entered. Provided, that no entered.— R. S. person shall enter more than one hundred acres, within any >=• ^2' s- ^■ one year, at that price ; and if any person shall enter more than one hundred acres, in the same survey, or in any one year, he shall pay fifteen cents for every acre he may enter. 8. All entries of land, made in the course of any one year, Wlien to be shall, in every event, be paid for on or before the thirty-first '"" day of December, which shall happen in the second year there- after ; and all entries of land, not paid for agreeable to this section, shall become null and void, and may be entered by any other person. Provided, however, that all persons who Time of pay- have entered vacant lands and paid for the same, since the first en'jriescx-' " day of January, one thousand eight hundred and forty, shall tended.— 1854, have until the first day of January, one thousand eight hun- "' ' ^" ' " drcd and fifty-seven to perfect their titles to the same by grant; and all persons who have entered lands according to law, since the first day of January, one thousand eight hundred and forty- five, and have not paid for the same, shall have until tiie first day of January, one thousand eight hundred and fifty-seven to 264 ENTRIES AND GRANTS. [ChAP. 42. make payment and perfect their titles thereto. Provided Proviso. ftiriker, that nothing in this section contained shall be so construed as to atlect the titles of persons who have heretofore obtained grants to said lands, or the rights of junior entries, or to extend to the swamp lands of the State ; or to extend to, or embrace any entry of more than six hundred and forty acres. On failure to 9. Whenever an entry of land shall be made in any entry- pny the price, taker's ottice, and the enterer shall fail to pay the price for the subsequent en- -ii • xi x- r -^ i u i ^ ' i terer entitled— same, Within the time limited by law, any person who may K.S.c.42,s.ii. have made a subsequent eiitfy for the same laud, may pay the price and have a grant. In case of 10. No lands entered on the books of the entry-takers, ptfrson^not^to ^'^^ entry of which shall be sufiered to lapse by non-payment reenter withiu of the price thereof, shall be reentered within one year after the S^c-'ir's!!!^' ^"^^ ^^ which such entry shall lapse, by the person in whose name such entry was -made, but such reentry shall be void. Entries, how 11. The claimant of land shall produce to the cntry- ra^'i^suer— " ^^"^^^ a writing, signed by such claimant, setting forth where B. s. c. 42, s. the land is situated, the nearest watercourse, mountains, and ^^' remarkable places, and such watercoiirses and remarkable places as may be therein, the natural boundaries, and the lines of any other person, if any, which divide it from other lands; and every such writing shall be on one quarter sheet of paper at least, and be indorsed by the entry-taker with the name of the claimant, the number of acres claimed, and date of the entry ; and a copy thereof shall be entered in a book, well bound, and ruled with a large margin into spaces of equal distance; each space to contain one entry only, and every entry to be made in the order of time in which it shall be received, and numbered in the margin ; and the entry-taker shall deliver to the party a copy of the entry with its proper number, and a warrant to the surveyor to survey the same ; which warrant shall contain a copy of the entry, with its number and date, and shall be delivered to the surveyor in the order of time, in which the entry was made. Surveys, how 12. Every county surveyoi", upon receiving the copy of the made ami re- i ii c ri- c ^ t ii turned. entry and order ot survey lor any claim ot lands, shall, as soon as may be, lay off and survey the same, agreeable to this chap- ter; and make thereof two fair plats, the scale whereof shall be mentioned on such plats; and shall set down in words the beginning, angles, distances, marks, and watercourses, and other remarkable places crossed or touched by or near to the lines of such lands, and also the quantity of acres ; and land lying on any navigable water shall be surveyed in such man- ner, that the water shall form one side of the survey, and tlie land be laid off back from the water; and he shall transmit the - plats to the oifice of the secretary of State, or deliver them to the claimant, within one year, together with the warrant or order of survey; one of which, witli the warrant, shall be filed np^^ohitedTnT ^y *''® secretary, and the other annexed to the grant; and no Bw'orn. survey shall be made without chain carriers, who shall actually Chap. 42.] entries and grants. 265 measure the land surveyed, and shall be paid by the party for whom the survey shall be made ; and such chain carriers sliall be sworn to measure justly and truly, and to deliver a true account thereof to the surveyor, which oath the surveyor is empowered and required to administer. Provided, however, Special sur- that when the ofRce of county surveyor is vacant, the county appo[i',tc.i.— R. court may appoint a special surveyor to survey any lands that S. c. 42, s. 14. may be entered; and the plats and certificates of such special ^gie c'.ss. ' surveyor, accompanied by a copy of tlie order of the county court appointing him, shall be deemed and held valid, as if done by a county surveyor duly elected. 1-3. The surveyor shall survey all entries of land according Surveys to be to the priority of such entry, paying due respect to the number priority of en- of each warrant ; and every grant obtained by any subsequent ''7'~?; ^' "' entry, otherwise than is by this chapter directed, shall be void. ' Provided, nevertheless, that nothing herein contained shall be construed to prevent any person who shall make a subsequent entry from surveying and obtaining a grant, as the law directs, for all such surplus land as shall remain, after the enterer of such land hath surveyed his entry as aforesaid. 14. When any person shall duly make an entry of lands '^'>"'^"t 0/ which shall not have become void by lapse of time, and upon dupifrat?may which the entry-taker shall issue his warrant of survey, and the he issued.— R. same be lost by accident, the entry-taker, on due proof being ' ' '"" made to his satisfaction, by affidavit of the claimant or the surveyor or deputy-surveyor, may issue a duplicate warrant of survey, of the same tenor and date, taking care to set forth, on the face of said warrant, that the same is a duplicate ; in which case such warrant shall be as valid as the original. 15. In all cases where an entry shall be made, and the entry- On dcntii, &c., taker shall die or resign before a warrant shall be issued there- s„cG'r\o\isue upon, his successor shall issue a warrant. warrants.— R. 16. If any entry-taker shall desire to make an entry in his EiitrV-taiier^s'^' own name, the same shall be made in its proper place, before iiowtomake a justice of the peace of the county, not being a surveyor or thenisfcivos.— assistant; which entry the justice shall return to the next R- s. c. 42, s. county court, who shall insert it; and every entry made by or ' for such entry-taker, in any other manner, shall be void. 17. When a county surveyor shall wish to have lands sur- Surveyors, how veyed in the county where he acts as principal surveyor, for the miuic (i,r"ti,^an! purpose of obtaining a grant, the county court of said county selves.— R. S. shall appoint some person to make the survey, and the entry- ''^ *"' ^" ' taker shall direct his warrant of survey to such jDcrson ; and all certificates, surveys, and plats of the same shall be made under the same regulations as prescribe the duty of the county sur- veyor in similar cases. 18. Every entry-taker shall make return to the secretary of Entry-takers to State, annually, on the first day of December, of all lands en- rciurnstosec'r. tered with hitn, under a penalty of two hundred dollars. u. s.c.42,s.20. 19. The secretary of State shall furnish the attorney-general, I'enaitv for . • j_ r ii • 1.1! -WT 1 4. failure, how rs- at every sprmg term ol the superior court ot v\ ake county, 23 266 ENTRIES AND GRANTS. [ChAP. 42. covered.— E. S. with a certificate of failure in every case where any entry -taker c. 4,s. 2. shall fail to make return agreeable to law ; and the attorney- general shall move for judgment against such entry-taker and his sureties, and the court shall give judgment accordingly. Pubiiotreas'r 20. The public treasurer shall receive the money for va- try money.— cant and unappropriated lands, upon the presentation to him RS. c. 42, s. of ^i^g certificate of the secretary of State, setting forth the number and date of the entry, and quantity of acres found by the surveyor to be vacant, as the same may appear by the returns made to him from the surveyor or entry-taker, or from the entry-taker's warrant, or the plats of survey. SiThat clrtifl- 21. No grant shall issue on the treasurer's receipt for the cates.—R. S. c. money ; but the comptroller shall make out and deliver to 42, s. 23. ^|jg secretary of State a certificate, conformable to each re- ceipt by him countersigned, on which the secretary shall issue the grant. ^Th^^Tdl ^^' The secretary, on application of claimants, shall make out grants for all surveys returned to his office, which grants shall be authenticated by the governor, countersigned by the secretary and recorded in his olfice. The date of the entry shall be inserted in every grant, and no grant shall issue upon any survey, unless the same be signed by the surveyor of the county ; and every person obtaining a grant for lands shall, within two years after such grant shall be perfected as afore- Aii grants to be said, cause the same to be registered in the county where r gis 16 . ^j^^ j^^^^ shall lie ; and any person may cause to be there Copies may be; registered any certified copy of a grant from the office of the S.°c!i42 S.24. secretary of State, which shall have the same effect as if the original had been registered. How to issue 23. In casc of the death of any person having made an terer.— R. S. c. entry of lands, pending the same or before making out the 42, S.25. grant, the secretary shall issue the grant in the name of the decedent ; and those interested, as heirs at law, devisees, ten- ants in dower, by the courtesy, or otherwise, shall have the same estate as if the land had been granted during the life of the decedent. Seal of grant 24. In all cascs where the seal annexed to a grant is lost newed!— K?s!' or destroyed, the governor may, on the certificate of the secre- c. 42, s. 26. tary of State that the grant was fairly obtained, cause the seal of the State to be affixed thereto. Certain grants 25. Grants of land made by the State to surveyors and ed' to°suiTey-"" deputy-surveyors, prior to the first day of January, one thou- ora, &c., con- sand eight hundred and twenty-nine, upon surveys, plats, and e.'«'s."2r. certificates of the same, made by them for themselves ri^spcct- ively, without other illegality, and without fraud or parliality, the certificates in all cases being signed by the principal sur- veyor, are confirmed and declared to be good and valid. Certain otlier 26. All grants issued by the secretary of State, previous to grants declnr- ,, '-'.. i'ij_i iiij x ed valid.— R. the year one thousand eight hundred and twenty, on surveys S.'c. 42, s. 28. made fairly and without fraud, and signed by the deputy- surveyor only, shall be good and elTectual to pass all the right Chap. 42.] entries and grants 267 of the State in and to said land, in as full and ample a man- ner as if such returns bad been made in due form. Provided, nevertheless, that nothing herein contained shall afiect any entries made, or grants obtained on legal returns for such lands, previous to the year one thousand eight hundred and twenty-nine. 27. Whereas, many citizens of the State, on making entries of Grants on en- lands near the lines of the county wherein they reside, either ?;'j'^^^j«^';^'«J|.'''"g for want of proper knowledge of the land laws of the State, more counties or not knowing the county lines, have frequently made entries s""^™'^^'';^!'' and extended their surveys on such entries into other counties than those wherein they were made, and obtained grants on the same ; and whereas, doubts have existed with respect to the validity of the titles to lands situated as aforesaid, so far as they extend into other counties than those where the entries were made ; for remedy whereof, Be it enacted, That all grants issued on entries made for lands situated as aforesaid, when the money has been paid into the public treasury, shall be good and valid against any entries hereafter made or grants issued thereon. 28. Whenever there may be an error by the surveyor in Mistakes of , . ,. , ,, .-r , c ±\ I ' a: sm-vevor .inU plattmg or makmg out the certmcate tor the secrelary s oilice, secretary, how or the secretary shall mistake in making out the courses agree- corrected, able to said returns, or misname the claimant, or make other mistake, so as such claimant shall be injured thereby, the claimant may prefer a petition to the court of pleas and quar- ter-sessions, or the superior court of the county in which the land lies, setting forth the injury which he might sustain in consequence of such error or mistake, with all the matters and things relative thereto ; and the said court, (seven justices be- ing present, if the petition be in the court of pleas and quarter- sessions,) may hear testimony respecting the truth of the alle- gations set forth in the petition ; and if it shall appear by said testimony, from the return of the surveyor or the error of the secretary, that the patentee is liable to be injured thereby, the court shall direct the clerk to certify the facts to the secretary of State, who shall file the same in his office, and correct the error in the patent, and likewise in the records of his office. The costs of such suit shall be paid by the petitioner, except when any person may have made himself a party to prevent the prayer of the petitioner being granted, in which case the costs shall be paid as the court may decree. The benefits granted by this section to the patentees of land shall be ex- tended in all cases to persons claiming by, from, or under their grants, by descent, devise, or purchase. When any error is ordered to be rectified, and the same has been carried through from the grant into mesne conveyances, the court shall direct a copy of the order to be recorded in the register's books of the county. Provided, that no such petition shall be brought, ,^'^^"7^ wiiilrn but within three years after the date of the patent; and if three ycnr* at- brought after that time, the court shall dismiss the same, and 'er date of 268 grant.— R. S. c. 42, s. 30. Persons ag- grieved by is- suing of pa- tents, how to proceed. — R. S. c. 42, s. 31. Proceedings and judgment ofcourt jnsuch Copy of pro- ceedings vacat- ing grant, to be filed in sec'ys office.— R. S. c. 42, s. 32. Cliapter not to apply to Cherokee lands.— R. S. c. 42, s. 36. ENTRIES AND GRANTS. [ChAP. 42. all proceedings had thereon shall be deemed null and of no effect. And provided a/sn, that nothing herein contained shall affect the rights or interests of any person claiming under a patent issued between the period of the date of the grant alleged to be erroneous, and the time of tiling the petition, unless such person shall have had due notice of the tiling of the petition, by service of a copy thereof, and an opportunity of defending his rights before the court according to the course of the common law. 29. When any person claiming title to lands under a grant or patent from the king of Great Britain, any of tlie lords pro- prietors of North Carolina, or from the State of North Caro- lina, shall consider himself aggrieved by any grant or patent issued or made, since the fourth day of July, one thousand seven hundred and seventy-six, to any other person, against law or obtained by false suggestions, surprise, or fraud, the person aggrieved may file his petition in the superior court of law for the county in which such land may be, together with an authenticated copy of said grant or patent, which petition shall briefly state the grounds whereon such patent should be repealed and vacated; whereupon a writ of scire facias shall issue to the grantee, patentee, or the person, owner, or claimant under such grant or patent, requiring such grantee, patentee, or owner, to show cause why the same shall not be repealed and vacated. 30. The writ of scire facias shall be considered the lead- ing process, and all the proceedings thereon shall conform to the general rules of practice in such cases, except where the scire facias cannot be made known to the defendant, when the court shall order publication in one or more papers for such time as they may think proper. If, upon verdict or demurrer, the court believe that the patent or grant was made against law, or obtained by fraud, surprise, or upon untrue sugges- tions, they may vacate the same ; and a copy of such judg- ment, after being recorded at large, shall be filed by the petitioner in the secretary's office, where it shall be recorded in a book kept for that purpose ; and the secretary shall note in the margin of the original record of the grant the entry of the judgment, with a reference to the record in his office. 31. Nothing contained in this chapter shall apply to the lands commonly known as, and cafied Cherokee lands, but the said lands are to be disposed of and regulated according to the laws in relation thereto. Sect. 1. (1.) Grants for lands not subjeet to entry, 13 Ire. 312, 4 P. & B. 328, 1 Mur. 162; covered 111/ water, 7 Ire. 139, 1 Hay. 489, 2 Hawks. 22G. (2.) 1 Jones, 234. Sect. 3. Jinlry-lnker cannot appoint dejmly, 3 Ire. Eq. 593. Effect of entry in eoujto, 2 Ire. Eq. 31'2. Skct. 11. /rre/julnr entry, 2 Slur. 375; description of land, 1 D. & B. Eq. 869. Sect. 21. Grant not collaterally impeached. Bus. 407, 13 Ire. 312. J'riorilu, 3 Mur. 639, 1 Hay. 176. Sect. 22. Effect of time of registration, 9 Ire. 333, 3 Mur. 21. Chap. 43.] 269 Skct. 27. 1 Dev. Eq. 483. Sect. 29. 4 Dev. 495, 1 lb. 481, lb. 300, 2 D. & B. 246, 4 lb. 533; purchaser frcnn l^rtmtce, 1 Dev. 427, 2 Mur. 876, 3 lb. 319; tio limitation of time, 3 Mur. 322; effect of judgment on scire facias, 3 D. & B. 14. CHAPTER 43. ESTATES. Section 1. Estates in tail converted into fee-sim- ple. 2. In joint tenancy, the share of deceased cotenaut not to vest in survivor. Proviso as to partners in trade. 3. Certain contingent limitations in deeds or wills, how construed. If made since 15th January, 1828. 4. Infant unborn, may take by deed, &c. 5. Limitation to the heirs of a living per- son, to be, to his children. 6. In conveyances to uses, possession transferred to use without livery. Section 7. Grantees of reversions to have such rights against tenants for life or years, as grantors had, 8. And such tenants to have same rights against grantees of reversions, as against the grantors. 9. Buying and selling pretended rights or titles, prohibited. 10. CoUateriil and certain other warran- ties made void. To stand as cove- nants only. 1. Evert person seized of an estate in tail, shall be deemed Estates in tail to be seized of the same in fee-simple ; and all sales and con- f°e°™^pie i!!'° veyances, made bonajhle and for valuable consideration, since R. S.c. 43, s. i. the first day of January, in the year of our Lord one thou- sand 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 from all claim, action, and right of entry whatsoever, of, in, and to such entailed estate, against any purchaser, his heirs or as- signs, now in actual possession of such estate, in the same manner as if such tenant in tail had possessed the same in fee- simple. 2. In all estates, real or personal, held in joint tenancy, the In joint tenan- part or share of any tenant dying shall not descend or go to jecea^ed'co^ °' the surviving tenant, but shall descend or be vested in the tenant not to heirs, executors, or administrators, or assigns respectively of \l^l™ ^"^' the tenant so dying, in the same manner as estates held by tenancy in common. Provided always, that estates held in proviso as to joint tenancy for the purpose of carrying on and promoting Pl""5"f^jj'"g trade and commerce, or any useful work or manufacture, 43, s. 2. established and pursued mth a view of profit to the parties therein concerned, shall be vested in the surviving partner, in order to enable him to settle and adjust the partnership busi- ness, or pay oft' the debts which may have been contracted in pursuit of the said joint business ; but as soon as the same shall be effected, the survivor shall account with, and pay, and 23* 270 ESTATES. [Chap. 43. deliver to the heirs, executors, administrators, and assigns respectively of sncli deceased partner, all such part, share, and Slims of money as he may be entitled 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 between joint merchants and the representa- tives of their deceased partners. Certain con- 3. Every contingent limitation in any deed or will, made tions in deeds to depend upon the dying of any person without heir or or wills, how hcirs of the body, or without issue or issue of the body, or ' without children, or offspring, or descendant, or other relative, shall be held and interpreted a limitation to take ell'ect, when such person shall die, not having such heir, or issue, or child, or offsjiring, or descendant, or other relative (as the case may be) living at the time of his death, or born to him within ten lunar months thereafter, unless the intention of such limitation be otherwise, and expressly and plainly declared in the face of If m.ade since the deed or will creating it. Provided, that the rule of con- — R "'s"c 43"*' straction contained in this section shall not extend to any deed s. 3. ' or will made and executed before the fifteenth of January, one thousand eight hundred and twenty-eight. Infant, unborn, 4. An infant unborn, but in esse, shall be deemed a person dee'd'&a''^ capable of taking by deed or other writing, any estate what- ever, in the same manner as if he were born. Limitation to 5_ j^j^y limitation by deed, will, or other writing, to the heirs ■ living person, of a living person, shall be construed to be to the children of such *hn'°'^"' person, unless a contrary intention appear by the deed or will. In convey- 6. By deed of bargain and sale, or. by deeds of lease and ances to uses, release, or by covenant to stand seized to use, or deed oper- possession .,*'- i-i , • transferred to atuig by way of covenant to stand seized to use, the possession nse without Qf ^[^g bargainor, releasor, or covenantor shall be deemed to be c. 43, s. 4.-27 transferred to the bargainee, releasee, or person entitled to the H. 8, c. 10. ^^gp^ fgj. j^],g estate or interest which such person shall have in the use, as perfectly as if the bargainee, releasee, or person en- titled to the use had been enfeoflied at common law with livery of seizin of the land, intended to be conveyed by such deed or covenant. Grantees of re- 7. Whenever a conveyance shall be made by any person, versions to /- ••11 xx x irx x have such 01 '^'^y reversion in lands, rents, tenements, or hereditaments, rights ajiainst which, at the time of such conveyance, shall be held by any tenants for life ,1 /. , ri-r 1 xi-i- or years, as other person ior a term of hie or years, such grantee, his heirs, grantors had.— executors, administrators, and assigns, shall have the like ad- ~32"h%,c.^34, vantages against the tenant for life, and against the tenant for s- 1- , years, his executors, administrators, and assigns,by entry for non- payment of rent and for doing of waste, and the same benefit and advantage and remedies by action for the not performing of other conditions, covenants, or agreements, contained and ex- pressed in the indentures, 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 executors, adminis- trators, and assigns, as the grantor or lessor himself or his heirs might have. Chap. 44.] evidence. 271 8. Lessees and gi-antees of lands, rents, tenements, and And such ten- hereditaments for term of years or life, their executors, admin- ""'nVright? istrators, and assigns, shall have like action, advantage, and aguinst gran- remedy against every person, his heirs and assigns, who shall '^^^yj^J^ig^injt have any conveyance from any person of the reversion of the tiie grantors.— same lands, rents, tenements, and hereditaments, so let or any 6.'_32'^'h*^8'^^;. parcel thereof, for any condition, covenant, or agreement con- 34, s. 2. tained 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 heirs. 9. No person shall buy, sell, or obtain any pretended right Buyi^ng and^^^ or title, or take a promise or covenant to have any right or gd riglitror" ' title of any person, in or to any lands or tenements, (except tities,^prohibit- such person as shall sell, covenant, or promise the same, or 43; j. t'.—'sI'h. they by whom they claim, have been in possession of the same -S c. 9, s. 2, i. or of the reversion or remainder thereof, or taken the rents and profits thereof one year ne.xt before the bargain made,) upon pain that both he that shall make any such sale, promise, or cove- nant, and the buyer, knowing the same, shall forfeit the value of the said lands ; the one half to the use of the county where 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. 10. All collateral warranties are abolished ; and all warran- *^°'j'^*^™jij™'^ ties, made by any tenant for life, of lands, tenements, or hered- ^^u-rantL '"^ itaments, the same descending or coming to any person in ;;?^''^f ™]'^j;g reversion or remainder, shall be void. And all such warranties, covenautsoniy. as aforesaid, shall be deemed covenants only, and bind the --K-^s.^c. 43^s. covenantor in like manner as other obligations. -li Anne, c. iG, s. 21. Sect. 2. ainveyance to husbnrul and wife, 2 D. & B. 537, Bus. Eq. 286. 'Purchase with pnrtnership funds, 1 I). & B. Eq. 524. Sect. 3. Wills before this section, 8 Ii-e. 133, lb. 25, 7 lb. 261, B lb. 225, 4 lb. 53, lb. 57, lb. 287, 3 lb. 134, lb. 200. Sect. 10. Bus. 169; 12 Ire. 123. CHAPTER 44. EVIDENCE. Sectiom 1. Evidence necessary to support title under H. E. McCuUoch. 2. Grant or copy from proprietors, suffi- cient evidence of title under him. 3. Law of other States, what evidence of. Section 4. Printed statute book evidence of pri- vate acts. 5. Otlior evidence of pinvate acts. 6. Copies from secretary's ollicc of plats of survey, good evidence. 172 EVIDENCE. [Chap. 44. Section 7. Administrations, Sec, and relums of administrators and executors, in oth- er States, liow certified. 8. Records and papers lodged iu State offices, proved by cojn'. 9. Wills or deeds iu otiier States, proved by certified copies. 10. In suits on official bonds, and bonds of executors, &c., evidence against principal, admissible against sure- ties. Sectios 11. Evidence in suits, concerning lands, in Haywood and Henderson. 12. Copies of wills, in the office of secre- tiry of State, to be evidence. 13. Variance between execution and judg- ment, not to affect title of property sold. 14. Deeds registered and lost, and the registry also destroyed, presumed to have been iu due foi-m. Evidence nee essary to sup- loch.' 44, s, In all suite, wherein it may be necessary for either party port title under ^o prove title, by vu-tue of a grant or grants made by the king loch'-R ^S^'c °^ ^^^'^^^ Britain or Earl Granville to Henry McCuUoch, or Henry Eustace McCulloch,it shall be suflicient for such party, in the usual maimer, to give evidence of the grant or convey- ance from the king of Great Britain or Earl Granville to the said Henry McCuUoch, or Henry Eustace McCuUoch, and the mesne conveyances thereafter, without giving any evidence of the deed or deeds of release, relinquishment, or confirmation of Earl GranviUe to the said Henry McCuUoch, or Henry Eus- tace McCuUoch, or the power or powers of attorney, by which the conveyances from the said Henry McCuUoch, or Henry Eustace McCuUoch, purport to have been made. 2. In aU trials where the titles of either plaintift' or defendant shall be derived from Henry Eustace McCuUoch, or Henry McCuUoch, out of their tracts number one and three, it shaU 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 sufficient proof of the title of such proprietors, in the same .manner as though the original grants were produced in evi- dence. 3. In all suits, wherein it may be necessary to produce in evidence the law of any of our sister States, or of a territory of the United States, either party may exhibit a copy of the law of such State or territory, drawn olf by the secretary of State of this State from the copy of the laws of such State or terri- tory deposited in his or the executive office or State library, certified under his hand with the seal of this State attached, and he shall furnish said copy when required. 4. All private acts passed by the General Assembly, and of private ac"ts. printed by the printer of the State, may be read in evidence in — R. S. c. 44, ^j2 courts, from the printed statute book. Grant or copy, from proprie- tors, suflicient evidence of title under him. — K. S. c. 44. 5. 2. Law of other States, evi- dence of. — R. S. c. 44, s. 3. Printed stat- utes evidence s. 4. Other evidence 5. Any private act published by Francis X. Martin, in his -K.^^c! 44,"' collection of private acts, or a copy of any private act certified s- 6. ' by the secretary of State, shaU be received in evidence in every court. 6. Copies of the plats and certificates of survey, or their ac- Copy of survey from secretar- Chap. 44.] ' evidence. 273 comnanvinnf warrants, which may be filed in the secretary's "^''^ office, good „* ^ .^ T , ,. , . 1111 J* evidence. — K. oflicf, certified by nmi as true copies, shall be as good evi- s. c. m, s. 6. deuce, in any court, as the original. 7. When an administration or letters testamentary on the Administrn- , ir. 1 11- ■ \ < -L J. tioi'Si etc., and goods and chattels of any person deceased, being an mnabitant retums of ad- in another State or territory, has been granted, or a return or "'2' g^f^°Jf„rs inventory of the estate has been made, a copy of the record of i,, otber SuitesJ administration, or of the letters testamentary, and a copy of J^™ '^^?rt'fie^i- any inventory or return of the effects of the deceased, after the s. 7.' same has been granted or made, agreeable to the laws of the State where the same has been done, being properly certified, either according to the act of Congress passed in May, A. D. one thousand seven hundred and ninety, or by the proper officer of the said State or territory, and the further testimonial of the governor that the person certifying is the proper officer, shall be allowed as evidence in the courts of the State. 8. Copies of all official bonds or writings recorded or filed ,^^^°jfjj„^g4 as records in any court, or lodged in the office of the governor, in state offices, treasurer, comptroller, or secretary of State, shall be competent J^™"^'^^ g, ^_ evidence as the originals, when certified by the keeper of such 23, s. 13. records or writings under the seal of 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. 9. In cases where inhabitants of other States or territories, )J'J|'i°^^ f^l^^^ by will or deed, devise or convey property situated in this State, proved by ccr- and the original will or deed cannot be obtained for registra- 'j^^^"^ c-Tri'^ tion 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 registered or deposited, agi'eeable to the laws of the State where the persons died or made the same,) being properly certified, either according to the act of Congi-ess aforesaid, or by the proper officer of the said State or territory, with the further testimonial of the governor that the person certifying is the proper officer, shall be read as evidence in the courts of this State. 10. In actions brought upon the official bonds of clerks of ^5'J°>^^^°° °®^ the county or superior courts, clerks and masters in equity, bonds of e'sec- sheriffs, coroners, constables, or other public officers, and also j;^°^^^ fgaintt'" upon the bonds of executors, administrators, or guardians, principal ad- when it may be necessary for the plaintiff to prove any default ""*^''^'<' nst sure- of the principal obligors, any receipt or acknowledgment of ties.— 1844, c. such obligors, or any other matter or thing which, by law, ^^' ^- ■'• would be admissible and competent for or toward proving the same as against him, shall, in like manner, be admissible and competent against all or any of his sureties, who may be de- fendants with or without him in said actions. 11. In all legal controversies touching lands in the counties J{^-',''''"f,^,(lp,.n. of Haywood and Henderson, in which either party shall claim ing u'mds in title under any sale for taxes alleged to have been due and laid, [J^li^Jerju,,'™' in or for the year one thousand seven hundred and ninety-six, 1542, c. cc. or any preceding year, the recital contained in the deed or as- 274 Copies of wills, in the office of secretary, to be evidence. — 1852, c. 172. Variance be- tween execu- tion and judg- ment, not to affect title of property sold. — 184S,'c. 63. Deeds regis- tered and lost, and the regis- try also de- stroyed, pre- sumed to have been in due form. — 1854, c. 17. EXECUTIONS. [Ch.\P. 45. .?nrance, made by tlic sheriff or other officer conveying or assur- ing the same, of tlic taxes having been laid and "assessed, and of the same having remained due and unpaid, shall be held and taken to be primd facie evidence of the truth of each and every of the matters so recited. 12. Copies of wills tiled or recorded in the ofHce of the sec- 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 etlcctual to pass the estate therein devised, in the same manner as if such wills had been duly proved and recorded in the county court. 13. 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 judg- ment 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. 14. Whenever it shall be shown, in any judicial proceeding, that a deed, or conveyance of real estate, has been lost or destroyed, and that the same had been registered, and that the register's book containing the copy has been destroyed by fire or other accident, so that a copy thereof 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 in fee-simple, if the gi-antor was entitled to such an estate at the time of conveyance ; and that it was made upon sufficient consideration. Sect. 3. 13 Ire. 114; 11 lb. 57G; 2 lb. pari of a sinlule, 3 Hawks, 404. Sect. 8. Nepative cerlificale, 2 Dov. 15. Sect. 13. 13 Ire. 425. Wlim plaintiff i 346; 2 Dev. 663; 1 Dev. Ecj. 123. Title tio Records, 6 Ire. 159. 1 purckaser, 11 Ire. 288. CHAPTER 45. EXECUTIONS. Section 1. Keal estate may be taken in execu- tion. 2. Executions to issue against real and personal estate ; latter to be firet taken and sold. 3. Levies on leaseholds of three years, under justice's execution, returned to court. 4. Trust estates liable to execution. I'urcliaser to hold property dis- charged of trust. Section 6. The equity, and legal right of redemp- tion in re;J estate, liable to execu- tion. 6. Sheriff's deed to recite the estate was mortgaged. 7. Articles exempt from execution. 8. Other articles for housekeepers. 9. How to bo assigned. 10. Sale of e.\cnipt property void. 11. Levy not to be made on growing crops till matured. Chap. 45.] EXECUTIONS. 275 Section 12. Justice's execution levied on land, and returned to court, — proceedings. 13. If not satisfied, execution to issue for the balance. 14. Lands and slaves, how and where sold under execution. Proviso, as to sales decreed by court of equity. 15. County court may appoint other places of sale. 16. Notice to be given of sales under exe- cution. Advertisement made, how and for what time. 17. At what hour sales to begin. 18. Penalty for selling contraiy to law. 19. AVhat to be stated by officer returning no sale for want of bidders. Penalty for omission. 20. Justice's execution to bind personally from levy only. 21. Sheriff, &c., may take bond for forth- coming of property levied on. 22. The surety to be bailee of the ofhcer, by taking list of property, &c. Sales, Section when made under other levied exe- cutions. 23. OfEcer how to proceed on the bond, when broken. 24. Officer le\'3'ing justice's execution on land, to notify defendant five days before court. Otlierwise court to direct notice. 25. County court to make allowance to officers for keeping horses, &c., taken in execution. 20. Officer to state and return his account. To furnish debtor a copy. 27. Purchaser may recover of defendant in execution, if the title to the tiling sold he defective. 28. Debtor dying in execution, debt not discharged. 29. Clerks to issue execution in six weeks, &c. Penalty of §100 for failure. 30. Officers to prepare deeds for property sold by them. 31. Costs on executions to be paid to clerks. 1. TuE houses, lauds, and other hereditaments and real estate, belonging to any person indebted, sliall be liable to and chargeable with all just debts, duties, and demands, of what nature or kind soever, owing by such person ; and shall be subject to the like remedies, proceedings, and process in any court of law or equity, for seizing, selling, or disposing of the same towards the satisfaction of such debts, duties, and de- mands, in like manner as personal estates are seized, sold, or disposed of in satisfaction of debts. 2. All process of execution shall issue against lands and tenements, as well as goods and chattels ; and Avhen any such execution shall come to the sherifl', he shall proceed to levy the same upon the goods and chattels of the defendant in the first instance, if any there be ; but if to the best of his knowledge there be no such goods or chattels, or not sufficient to answer the plaintiff's demand, he shall execute the same upon the lands and tenements, to the amount of the whole debt, or of so much as may remain more than the value of the goods and chattels so found ; and such lands and tenements shall be liable, under the restrictions aforesaid, to be sold to satisfy the plaintiff's judgment. 3. The levy, by any constable or other officer, under an ex- ecution issued by a justice of the peace, on any leasehold estate, of three years' duration or more, at the time of such levy, shall be returned to court as levies on lands, and con- demned to sale, and sold in the manner provided for lands. 4. AVhere any person shall be seized or possessed of any lands, tenements, rents, and hereditaments, or any goods and chattels, in trust for any person against whom any execution Heal estate may be taken in execution. — K. S. c. 45, s. 1. Executions to issue against real and per- sonal estate ; the latter to be first taken and sold.— n. S. c. 45, s. 2. Levies on lease- holds of three years, returned to court, when. Trn«t estates liable to execu- tion. 276 EXECUTIONS. [Chap. 45. Purchaser to or process shall be issued, such estate may be levied on and of'trubi*^— 1£°' ^°^'^ under such execution or process ; and the purchaser S. 0. 45, s. 4. thereof shall hold and enjoy the same freed and discharged from all incumbrances of the person so seized, or possessed in trust, as aforesaid. Eight of re- 5. The equity of redemption, and the legal right of redemp- estate'^ifaWe to tion, in lands, tenements, rents, or other hereditaments, which execution.— R. shall be pledged or mortgaged, shall in like manner be liable '^" ■ to any execution or process sued out on any judgment against the mortgagor or bargainor. Sheriff's deed 6. The sheriiT selling such lands, tenements, rents, or other gage.— R."s?'c" hereditaments under execution, shall set forth in the deed to 45, s. 0. the purchaser thereof, that the said estates were under mort- gage at the time of the levy and sale. emnt fronf ex- '^'^^ Wearing apparel, working tools, arms for muster, one ecutiou.— R. s. wheel and two pairs of cards, one loom, one bible and testa- iMs'c'ssI 1 ™f^'it' °'is hymn book, one prayerbook, and all necessary ' ' ' school-books, the property of the defendant, shall be exempt from seizure under execution. Additional ar- 8. In addition to the foregoing articles there shall be, in ticles for house- r c i i i • 'ii ,i • • /• keeper, ex- lavor ot every housekeeper complying with tlie provisions of emi't-— 1S44. c. this chapter, exempt from execution on debts contracted since 1648, c. 38, s. 2! the first day of July, one thousand eight hundred and forty- five, the following property, 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 jjork, or one barrel of fish, all necessary farming tools for one laborer, one bed, bedstead, 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, hoivever, that the provisions of this section shall not be ex- tended to any person, against whom judgment is obtained and execution awarded for liability incurred for failure or neglect to work on the public roads, or to muster, or pay his poll tax. How to be as- 9. Whenever any such person, or his wife, in his absence, ^'"'g"''-";^^^^' may desire to have the benefit of the preceding section, he shall apply to some justice of the county in which he resides, who sliall appoint three respectable freeholders, disinterested and unconnected with the jiarty, to lay off and assign to such person the property to which he may be entitled under said section ; and they shall immediately make out a full and fair list thereof, and return the same to the clerk of the court of pleas and quarter-sessions for that county, who shall file the same among the records of his otlice. Sale of e.^ompt 10. Every conveyance by sale, deed in trust, or otherwise, 1848 0^ 38"s. 5! ^'^'^ ^'^^ payment of debts or demands, of any property set apart as aforesaid, shall be void. No levy on 11. No execution shall be levied on growing crops, until the growing crops „„mp nvp m-itiirF-rl till matured.— Same aie maiuica. 1844, 0. 35. Chap. 45.] executions. 277 12. When an execution issued by a jnstice shall be levied Justice's oxe- on lands and tenements and returned to court according to on'Janii'rnd're- law, upon application of the plaintiff, the conrt shall enter up turnM to court, judgment for the amount of the recovery before the justice, ~g'_°g^^j|'^5^j_ and for costs. 8. 13. If, by the sale of the lands so levied on and returned if not satisfied, to court, a sufficient sum shall not be raised to satisfy the i's^Qe"for'tiie judgment and costs, the plaintiff may sue execution from the balance.— K. S. court for the residue thereof. ' ' ' ' 14. All sales of land or slaves, by the sheriff, coroner, con- Lands and stable, or by the clerk and master in equity, under any execn- ^^lere sold '^"'^ tion or decree, shall be made at the court house of the county under execu- on the first day of the term of the superior court, or on the ^^ifs^w.' same Monday in every month on which the courts of pleas —1844, c. 9. and quarter-sessions are generally held for their respective counties ; always making the Monday of each county court and the first day of the term of the superior court, the only sale days in that month ; and if, on any sale day, the whole of the property taken in execution cannot be sold, or if property, levied on under other executions, cannot be offered for want of time, or cannot be sold, on the same day, the sheriff or other ' officer may postpone or continue the sale fi-om day to day, tmtil the whole shall be sold, on giving public notice at the court house, that such sale will be continued on the ensuing day. Provided, that nothing herein contained, shall be con- strued to alter the rules and restrictions under which sales are directed to be conducted, and executions required to be re- turned; or to alter the days of sale in particular counties, as now established by law. And provided further, that the courts Proviso, as to of equity may, in any decree of sale made by said courts, i,y crart'oT appoint the time and place of sale. equity. 15. The court of pleas and quarter-sessions shall have Co. court may authority, (a majority of the justices being present,) to estab- places of sale, li.sh additional places of public sale in their county. — R- S- c. 45, 16. No sheriff, or other officer, shall sell any real estate, x^tice to "be equity of redemption, or legal right of redemption of any real siven of sales estate, until he shall have advertised the same forty days pre- ^ade, how and vious thereto, in three public places in his county; nor sell f'"' what time. any slave, until he shall have made like advertisement for ^1*2. ' twenty days previous thereto; nor sell other personal property, until like advertisement for ten days previous thereto. And, in addition to the three public places above specified, every sale under an execution issuing from a court of record shall be advertised by the officer, at the court house of his county. 17. No sale under an execution or decree shall commence At wiiat hour before ten o'clock in the morning, or after four o'clock in the ^'^' *s.''cf45 evening, of the day on which the sale is to be made. s. 13. 18. Any sheriff or other officer, who shall make any sale Peiiaityfor sell- contrary to the true intent and meaning of this chapter, shall law.— u. s. c. forfeit and pay two hundred dollars, to any person suing for ■*=>. *• u- 24 278 EXECUTIONS. [Chap. 45. SlierifT or otlier officer return- ing no sale for \^•illltofbiJ- ders, what he shall state. S. c, 45, s. 15. Justice's cx'u to bind per- sonalty from levy only. — R. S. c. 45, s. 16. Sheriff, &o., may take bond for "forthcoming of property levied on. — E. S. c. 45, s. 17. The surety to be bailee of the officer, by tak- ing list of prop- erty, &c. Sales, when made under other levied executions. — 1S44, c. 34 ;. 1S46, c. 50. Officer how to proceed on the bond, when brokeu.— R. S. c. 45, s. 18. the same, one half for his own use, and the other half to the use of the county where the oflence is committed. 19. Whenever a sheriff or other officer shall return upon any writ o{ fieri facias^ or venditioni exponas, that lie has made no sale for want of bidders, he shall state in his return the several places at which he has advertised the sale of the prop- erty levied on, and the places at which he hath offered the same for sale ; and any officer failing to make such specifica- tion, shall be subject to a fine of forty dollars ; and every con- stable, for a like omission of duty, shall be subject to a line of ten dollars, for the use and benefit of the plaintiff in the exe- cution ; for which, on motion of the plaintiff, judgment shall be granted by the court to which the execution shall be returned ; or, in the case of a justice's execution, by any jus- tice to whom the execution shall be returned. Provided, that nothing in this section contained, or any recovery under the same, shall be a bar to any action for a false return against the sheriff, or other officer. 20. Where any execution shall be issued by a justice of the peace, and levied on personal property, the same shall be bound by, and only from, the levy of the execution. 21. If any sheriff or other officer, who may have levied an execution or other process upon personal property, shall permit the same to remain with the possessor, such officer may take a bond for the forthcoming thereof to answer the said execution or process, which bond shall be attested by a credible witness ; but the officer shall nevertheless, in all respects, remain liable as heretofore, to the plaintiff's claim. 22. When such a bond shall be taken, the officer shall specify therein the property levied upon, and shall furnish to the surety a list of the property in writing under his hand, attested by at least one credible witness, and stating therein the day of sale ; and the property so levied upon shall be deemed iti the custody of the surety, as the bailee of the officer : and all other executions thereafter levied on said property, shall create a lien on the same from and after the respective levies, and shall be satisfied accordingly out of the proceeds of the sale of said property ; but the officer thereafter levying shall not take the property out of the custody of the surety. Pro- vided, that in all such cases, sales of slaves shall take place within sixty days, and of other chattels within thirty days, after the first levy ; and if sale shall not be made witiiin the time aforesaid, any other officer who may have levied upon the property, may seize and sell the same. 23. If the condition of such bond be broken, the sIierifT or other officer, on giving ten days' previous notice in writing, to any obligor therein, may on motion have judgment against him in a summary manner, before the court of pleas and quarter-sessions, or the superior court of the county in wliich such officer may reside, for all such damages as said oflicer may have sustained or be judged liable to sustain, not exceed- Chap. 45.] executions. 279 ing the penalty of the bond, to be ascertained by a jury, un- der the direction of the court. 24. When an officer shall levy an execution, issued by a omcor levying justice of the peace, on land, he shall serve the defendant •["^^^'Jj'*^^''" with notice in writing, five days before the term to which the lan.i, to notify execution is returned, of the levy, and the terra to which it il'^f'' ''"'' ''i'-^^ • II 1 1 1 •(• • 1 before court. Will be returned ; and if it do not appear to the court, when an order of sale is prayed, that such notice has been given, the court shall direct a notice to issue, and shall not make any order of sale until the notice be served on the defendant five days previous to the terra of the court granting the same ; Provided always, that, upon affidavit made that the defendant "^"^Yr'rih- has absconded or conceals hiraself, or has removed out of the notice.— R. S. county, or is an inhabitant of another State, so that the notice ''•*°' ^- ^^■ cannot be personally served, the court may order reasonable notice to be given by a publication in some newspaper ; and, upon proof of publication, may make the order of sale. 25. The court of pleas and quarter-sessions shall make a County conrt reasonable allowance to officers for keeping and maintaining 'fbr^eep'^ng''"^ horses, cattle, hogs, or sheep, and all other property the Iceep- horses, &o., ing of which may be chargeable to them, taken into their cus- ifon!— E.^s!c." tody under legal process ; and such allowance may be retain- 45, s. 20. ed by the officers out of the sales of the property, in prefer- ence to the satisfaction of the process under which the proper- ty was seized or sold. 26. Every such officer shall make out his account, and if '^'^''''^ '° '',''?-*^ 1*111 1- /.'ii ^^^^ return I11& required give the debtor or his agent a copy thereof, signed by account, his own hand, and shall return the account with the execution |]^^ij*o™^co v or other process, under which the property has been seized or — r. s. c. 45, s. sold, to the justice or the court to whom the execution or pro- ^^• cess is returnable, and shall swear to the correctness of the several items therein set forth ; otherwise he shall not be per- mitted to retain the same. 27. Where property, real or -personal, shall be sold on any Pa^Ji^^ser may execution or decree, by any officer authorized to make the ,„ execution, if sale, and the sale be legally and bona fide made, and such "1? 'J'^ViV'* property be not the property of the person against whose es- defective.— R. tate such execution or decree may have issued, by reason of S- <=• ^'^i *• ^^• which the purchaser may have been deprived of the same property, or may have been compelled to pay damages in lieu thereof to the owner ; in every such case, the purchaser, his executors, or administrators, may sue the person against whom such execution or decree may have issued, or the person le- gally representing him, in an action on the case, and recover such sura as he may have paid for the property, with interest from the time of payraent. Provided always, that such pro- perty, if the sarae be personal property, be present at the sale, and actually delivered to the purchaser. 28. Parties, at whose suit the body of any person shall be pefemlant =■ ^^^ ^- "• by the -moneys on hand at the death of the testator, and the sales of such perishable estate ; or Avhen there cannot con- veniently be a proper distribution of the estate, the executor or administrator shall sell the personal estate for the purposes of paying debts or distribution, or both, as the case may require; but, before making such sale, the executor or administrator shall apply to the county court, and, on showing the necessity of the sale, the court shall allow the same. 18. All sales by an executor or administrator, of the perish- Terms of sals. able or personal estate, shall be publicly made on a credit of six ~j{_ ' '^' ' months, and after twenty days' notification by advertisement posted at the court house and four other public places in the county; and the proceeds of the sale shall be secured by bond with good security, and collected as soon as practicable, other- wise the executor or administrator shall be answerable for the same ; and such moneys when received shall be liable for the satisfaction of judgments previously obtained and entered as judgments, when assets should come to the hands of the exec- utor or administrator. 19. Nothing in the preceding section shall be construed to Powers under affect the powers, trusts, or authorities of an executor, derived |u'iici'ngcred'it- from the will of his testator, if thereby creditors be not delayed, m-s to be foi- nor the order changed in which by law they are entitled to be ,,""453. 12. paid. 286 EXECUTORS AND ADMINISTRATORS. [ChAP. 46. Sales, &c., at 20. All sales, rentins', and hirins; of the proncrtv of de- piiblic auction, „„„ i u ii i i i i i i I- i between 10 Ceased persons, shall be made and done b}' public vendue or and 4 o'clock, auction ; and no such sale, renting, or hiring shall commence before ten o'clock in the morning, or after four o'clock in the evening, of the day on which the sale, renting, or hiring is to felling othir- ^^. "lade : and any executor or administrator, who shall other- wise, wise make any sale, renting, or hiring, shall forfeit and pay two hundred dollars, to any person suing for the same. Pro- 2f!!ys'''^'" iiWefi, that nothing herein contained shall be construed to 46,' s. 14. " ' restrict discretionary powers vested in executors by the wills of their testators. Dipiityof 21. In the payment of debts of deceased persons, bills, scribed."^— R. bonds, and promissory notes, with or without seal, and all set- S. c. 46, s. 15. tied and liquidated accounts, signed by the debtor, shall be regarded as of equal dignity, and be paid accordingly. Executor and 22. Every executor and administrator within two months to adverti'se"' aft^r being qualified, shall advertise at the court house and two within t\ro other public places of the county, in which the deceased usu- s! 0.46, s. 16. sl'y dwelt at the time of his death, for all persons to present their accounts and demands of every kind for payment, within the time prescribed by law. How the adver- 23. Every executor and administrator shall take a copy of be proved.— ''ft. the advertisements he shall put up, in pursuance of the pre- S. c. 46, s. ir. ceding section, which, with an affidavit subscribed thereon by a witness before some justice of the peace of the county in which the advertisements are directed to be made, stating therein the times and places when and where such advertise- ments were seen, shall, at the term of the court next following that in which the executor or administrator shall qualify, be filed in the office of the clerk of said court ; and the copy so attested, shall be considered as a record of the court ; and a copy thereof duly certified by the clerk, with a certificate that it was filed at the time herein required, shall be received as evidence in any court. Provided alwai/s, that nothing herein contained shall preclude any executor or administrator from proving his compliance with the preceding section in any other manner which may be deemed competent. To pay over at 24. No executor or administrator, after two years from his year™ " "° qualification, shall hold or retain in his hands more of the de- ceased's estate than amounts to his necessary charges and dis- bursements, and such debts as he shall legally pay; but all such estate so remaining shall, immediately after the expira- tion of two years, be divided, and be delivered and paid to such person to whom the same may be due by law, or the will of the deceased, such person or some other for him, giving Rcfnnding bond with two or more able sureties, conditioned that if any bond to be giv- debt, truly owed by the deceased, shall be .afterwards sued for Remedy of and recovered, or Otherwise duly made appear, he will refund b^Kl'^I.^R.'s. ^""^' P^y ''i« ratabh; part of such debt, out of the part or share c. 40, s. 18. allotted to him : such bond shall be made payable to the State of North Carolina, and shall enure to the sole use of the crcd- Chap. 46.] executors and administeatoes. 287 itors, who may have a scire facias, in manner hereinafter di- rected, against the obligors therein. 25. The executor or administrator shall bring the bond into Bond ami de- court, at the term next after it is taken, together with a de- o^property w scriptive list of the property delivered, and a record shall be be filed in co. made of the bond and list, which shall be filed in the office of ^""g'^g^m.' the court. 26. And in all suits, where the executor or administrator Creditors may shall plead fully administered, no assets, or not sufficient assets bond. — u""s°" to satisfy the plaintiff's demand, and such plea shall be found o. 4o, s. lu. in favor of the defendant, the plaintiff may proceed to ascer- tain his demand and sign judgment; and on motion a writ of scire facias shall issue, summoning the obligors in such bond to show cause why execution shall not issue against them for the amount of the judgment ; and if judgment be rendered against the defendants or any of them, execution may issue thereon. 27. All sums of money or other estate of whatever kind, Property ro- which shall remain in the hands of any executor or adminis- year" mi-^^^" trator for seven years after his qualification, unrecovered or un- citiimed in then- claimed by suit, by creditors, next of kin or others entitled uulVersity. thereto, shall be paid by the executor or adminislTator, to the trustees of the University of North Carolina ; and the said trustees are authorized to demand, sue for, recover, and collect such moneys or other estate of whatever kind, and hold the same without liability for profit or interest, until a just claim therefor shall be preferred by creditors, next of kin, or others if not claimed entitled thereto; and if no such claim shall be preferred, within 1,"^ "Sut'e- ten years after such rnoney or other estate be received by the ly. — R. s. o. said trustees, then the same shall be held by them absolutely, ^"i ^" '^^' 28. Whenever any executor or administrator shall have lu certain in his hands any effects belonging to the estate of his petition for s^'t- testator or intestate, or such estate shall be insolvent, he tiemout.— may, at any time after two years from his qualification, file i^*^- <=■ *°' ^- 1- his petition against the parties interested in the due adminis- tration of the same, in any court of the county wherein he qualified, setting forth the facts, and praying for an account and settlement of the estate cornmitted to his charge ; which petition shall be proceeded on according to the rules of court, and on the hearing thereof, such order and decree shall be made in the premises as may seem to the court to be just and right. 29. When any balance of money or other estate shall be What is due to found in the hands of the petitioner, due or belonging to any f;,at'«it'iiu'iit'"' absent defendant, or infant without guardian, the court in its g"ar<'i-"i.to'>c discretion may direct the same to be paid and delivered to J.'"y,.t.1^ is^s" the clerk, or clerk and master, to be by him invested or other- c. 40, s. 2. wise managed, under the direction of the court, for the use of such absent person, or infant. 30. The officer intrusted with the property shall receive ciork liable on such compensation for his services as the court may allow, '^\'i'„iv™i'eoni'l and shall be liable on his official bond for the discharge of iiH-saiion.- ibis, c. 4u,s. 3. 288 EXECUTORS AND ADMINISTRATORS. [ChAP. 4G. the duties enjoined upon him by the court in relation to said property. Debtor named 31. The appointing any person executor shall not be a dis- charVed!— r" charge of any debt or demand, due from him to tlie testator. S. c. 46, s. 21. 32. If any cestui que trust shall die leaving any equitable personaUy to'" interest in personal estate which shall come to his executors S. c. 46, s. Ji2. assets. Ex'rs&adm'rs 33. No executor or administrator shall be compelled to moiiths t"""' plead to any original suit, brought against him in any court, plead in court, until the expiration of nine months from and after his takins; — R. S. c. 46, , . j r . 1 jt: ° s. 23. upon hmiseli the othcc. And before jus- 34. When an executor or administi-ator shall be warranted 46 S.T4. ' foj" ^iiy demand, before the expiration of nine months as afore- said, the magisti-ate, before whom the warrant shall be re- turned, shall postpone, by an indorsement on the warrant, the trial thereof to some day immediately after the expiration of said time, on which day it may be tried. Warrant re- 35. When an executor or administrator shall be waiTanted, turned to court j-,g ^ndsv on the trial su2;s;est a want of assets, and the masris- on pleji 01 no " oo ' o assets. trate shall indorse the same on the warrant; and, if he iind the plaintiffs claim to be just, lie shall give a judgment there- for, and return the warrant, with such indorsement and judg- ment, to the next term of the court of pleas and quarter-ses- sions of his county ; when the defendant may plead any plea relative to his assets, which could be pleaded, had the suit Costs in such been instituted returnable to said term; and in all cases so 46^s' 25^' ^' "' returned, the same costs shall be allowed as in cases of appeals from justices. No lien created 36. No lien Oil the goods of a deceased person shall be ?'7^^=?,'ii™'^Tl°c created by the commencement of a suit, or the service of a ing suic- — ii,. p. . y '11 ■ 1 • • c. 46, s. 26. writ on Ins representative ; but the executor or administrator may sell the goods, as if such writ had not been served, or suit commenced. Deeds for lands 37. When any deceased person shall have bona Jide sold be'soM Iv de- ^"Y la"<^^*) ^"d shall have given a bond to the purchaser ceased, niay be to convey the Same, and the bond hath been duly proved &c.— K.'''s!V' before the court and registered in the county where the lands 46, s. 28. are situated, if in the State; or if not in the State, shall be proved before the court and registered in the county where the obligee lives, or obligor died ; his executor or administra- tor may execute a deed to the purchaser conveying such estate us shall be specified in the bond; and such deed shall convey the title as fully as if it had been executed by the deceased obligor. Provided, that no deed shall he made but upon payment of the price, if that be the condition of the bond. Commissions 38. The courts of plcas and quartcr-scssioiis are authorized ^enL Moved '' ^^'^ directed to allow commissions to executors and adminis- for sales, &c.— trators, not exceeding live jicr r.cnlum, upon the amoniit of ■ ■''■*^'*"^^' receipts and expenditures, which shall appear to be fairly Chap. 46.] executors and administrators. 289 made in the course of administration ; and such allowance may be retained out of the assets against creditors and all other persons claiming an interest in the estate. And the court, in malting such allowance, shall consider the trouble and time expended in the management of the business. Pro- vided, hoiuever, that in sales of land, by license of court, for payment of debts, commissions shall not be allowed on any larger amount of the proceeds, than the sum actually ap- plied in payment of debts. And provided also, that nothing rroviso as to in this section contained shall prevent any executor or admin- i84V^''i"'^'*i9^ istrator from retaining for necessary charges and disbursements 1852', c. 158. in the management of the estate. 39. Any surety on the bond of an executor or administra- Sureties of tor, who shall be in danger of sustaining loss by his suretyship, n^'r^ ia"daD^er may exhibit on oath his petition to the county, or superior ofioss may ° court, or to the court of equity, of the county wherein the said proceedings bond was given, setting forth particularly the circumstances of tiierefor.-%. his case, and praying that such executor or administrator may fi 32.*"' ^' ^"' be removed from his officB^ or give security to indemnify the petitioner against such apprehended loss, or such other relief as may be suitable to his case ; and thereupon the defendant shall be required to answer the premises according to the course of the court. And if upon the hearing of the case, the court shall deem the petitioner entitled to relief, the same may be granted in such manner, and to such extent, by sequestra- tion of the property or otherwise, as to the court shall appear to be just. Provided, however, that the administration shall not be vacated, unless by appointment of some other to the office. And provided also, that the court may, from time to time, pending the petition, make such interlocutory order and decree as, without injury to the rights and remedies of credi- tors, may tend to the better securing of the petitioner. 40. When part of the executors of any person making a Lands devised will of lands, to be sold by his executors, die or refuse to take *» be sold by ,1 ,, , . . . •'j. , 11 ,, , ,. ex'rs, bv wlium upon them the admmistration ; or when all the executors die, tobesriid.— or refuse to take upon them the administration ; or when there ^^ ^■'^- *^' ^• is no executor named in a will devising lands to be sold, or to be sold by executors ; in every such case, such executors as qualify, or having qualified do survive, or the administrator with the will annexed, may sell such lands ; and all conveyances, made by such executors or administrator, shall be effectual to convey the title to the purchaser of the estate so devised to be sold. 41. Every person who shall receive goods or debts of any Who clmrge- person dying intestate, or any release of"a debt due the intes- t^^,lfJ,ftH. tate, upon a fraudulent intent, or without such valuable con- — K-S.c. 46, s. sideration as shall amount to the value or thereabout, (except f^Z^^ '^''^' '^' it be in the satisfaction of some debt, of the value of the same goods or debts to him owing by the intestate at the time of his decease,) shall be chargeable as executor of his own wrong, so far as such debts and goods, coming to his hands, or 25 290 EXECUTORS AND ADMINISTRATORS. [ChAP. 46. Executors or admin'rs of ex- ecutors or ad- min'rs, liable for a devastavit. — R. S. c. 46, s. 36. Right of action to survive to executors, &c. — R. S. c. 46, s. When person- alty insufficient to pay debts, &c., executor, &c., may sell real estate. — 1846,0. l,s. 1. License, how obtained. — 1846, c. 1, s. 2, 7. Sale of part or whole may be licensed. — 1846,0.1,8. 3. Heirs, &c., to be parties. — 1646, c.l, s. 4. Wlien petition mnv be heard. — 1646, c. 1, s. Terms of sale to be directed by court. — 1846, c. 1, s. 6. whereof he is released, will satisfy, deducting all just debts owing to him by the intestate, and all other payments made by him. 42. The executors and administrators of persons, who, as rightful executors, or executors in their own wrong, or as ad- ministrators, shall waste or convert to their use any estate or assets of any person deceased, shall be chargeable in the same manner as their testator or intestate might have been. 43. Executors and administrators, and executors of execu- tors, shall have actions in like manner as the first testator or intestate might have had, against any person, liis executors and administrators, in all cases except where such actions be- ing commenced, are not allowed by statute to be revived on the death of a party. 44. When the goods and chattels of any deceased person, in the hands of his executor or administrator, shall be insuffic- ient to pay all his debts with the charge of administering the estate, his executor or administrator shall sell his real estate, upon obtaining a license therefor, and proceeding therein in the manner hereinafter provided. 45. In order to obtain such license, the executor or admin- istrator shall present to the county or superior court of the county in which he qualified, a petition setting forth the amount of the debts due from the deceased as nearly as they can be ascertained, and the amount of the estimated charges of administration, and the value of the personal estate ; and if it shall be necessary to sell a part only of the real estate, he shall also set forth the value, descriptions, and conditions of the estate, or such part thereof as he shall propose to sell ; and the court may, in all cases where it is not necessary to sell the whole, decide and direct what specified part of the estate shall be sold ; and he shall malce affidavit of the facts stated in his petition. 46. K it shall be represented in such petition, and shall ap- pear to the court that it is necessary to sell some part of the real estate, and by such partial sale, the residue of the estate, or some specified part or, piece thereof, would be greatly in- jured, the court may license a sale of the whole estate, or such part thereof as the court shall think necessary, and most ben- eficial for the interest of all concerned therein. 47. No such license shall be granted until the heirs and devisees, or other persons interested in said estate, shall be made parties to the petition, and served with notice, either actually, or by advertisement as in olhcr petitions. 48. As soon as all the parties are before tlie court, the court may proceed to hear the petition and decree the sale if neces- sary, unless such cause to the contrary be shown as may in- duce the court to refuse it, or postpone tlie final hearing to another term. 49. Whenever the court may decree a sale, it shall be made upon such terms and credit as the court may direct, and the Chap. 46.] executors and adjiinistrators. 291 title shall be made to the purchaser by such person and at such time as the court shall prescribe. 50. All the proceeds of the sales of real estate which may Proceeds of not be necessary to pay debts and charges of administra- bj.rse"|° tnbe tion, shall be considered real estate, and as such shall be paid ™^' estate.— by the executor or administrator to such persons as would be jC. ,s. . entitled to the land, had it not been sold ; or in the case of feme coverts, invested as proceeds of sale made for partition. 51. The proceeds of sale shall be assets in the hands of ^"y'^^^^^^jf .^^, t° the executor or administrator, for the purpose of paying debts charges of ad- and charges of administration, and applied as though the same ^sTg^o'^i'T o" were the proceeds of personal estate ; and bonds and other obligations, in which the ancestor hath bound his heirs, shall not be put in suit against the heirs or devisees of the deceas- ed, and shall be considered, in the payment of debts, of equal dignity with other specialties, bills, promissory notes, and liquidated accounts. 52. All bonds executed by administrators or executors, on Bonds of adm's and after the first day of February, one thousand eight hun- cnri'ty for both' dred and forty-seven, shall be deemed and taken to have been real and per- executed, as well to secure the performance of the duties im- ^°°^ "^°®'^" posed on them respecting the sale of real estate and the ad- ministration of assets received therefrom, as those required of them respecting personal assets ; and the court to whom an application is made for license to sell real estate, may, if they deem it proper, require an additional bond" to be given with Additional good security in a sufficient sum, conditioned for a faithful required.— and proper administration of the assets received from a sale of is*Si<=-ii ^-i"- real estate ; on which bond the same remedies may be had as upon the original bond given by the executor or administrator. 53. The real estate subject to sale as hereinbefore provided, What real es- shall include all the deceased may have conveyed with intent be sold.''^° to defraud his creditors, and all rights of entry and rights of action, and all other rights and interests in lands, tenements, and hereditaments which he may devise, or by law would de- scend to his heirs ; and all such other interests in real estate as would be liable in a court of equity to be applied in dis- charge of his debts. Provided, that lands so fraudulently con- lonajhU pur- veyed, shall not be taken from any one who purchased them chasers with- for a valuable consideration, and without a knowledge of the is46, c. i,s. ii. fraud. 54. Whenever an executor or administrator shall file his ■vvhatjudgm't petition to sell land, which may have been fraudulently con- 5f frandni™t veyed as aforesaid, and of which there may have been a sub- igjgT']"^,!'i2 sequent bona fide sale, Avhereby he cannot have a decree of sale of the land, the court may give judgment in favor of such executor or administrator for the value of the land, against all persons who may have fraudulently purchased the same ; and if the whole recovery shall not be necessary to pay the debts and charges aforesaid, the residue shall be restored to the person of whom the recovery was made. 292 EXECUTORS AND ADMINISTRATORS. [ClIAP. 46- Issue to try 55. Whenever the land which is sought to be sold shall be when?— 1846 claimed by another, under any pretence whatsoever, the court c. 1, s. 13. may order an issue to try the title ; and if it shall be found for the executor or administrator, he shall have his writ of pos- session, and a decree of sale accordingly, b^'dwi'^n^ii ^^' ^^'''•^" ^'1 executor, other than such as may have given censed to sell bond with security, is licensed to sell any portion of the real real estate.— ggf^^tg fyj. the payment of debts, he shall execute a bond with ' good and sufficient security, payable to the State of North Carolina, conditioned for the faithful application of the pro- ceeds of sale to the debts of the testator ; and for accounting and paying over all the proceeds of sale that shall remain after payment of the debts and charges for which such estate may be sold, and for disposing of the same according to law; which bond may be put in suit by any person injured by breach thereof. Proceeds of all 57. Whenever an executor, or administrator with the will real estate to t ,, i ii n i j_ j. r j. r be leo-al assets, annexed, or other person, shall sell real estate tor payment of — 1846, c. 1, s. debts, by virtue of any devise, power, or trust, contained in the will, the proceeds of sale shall be deemed legal, and not equitable assets, and shall be applied as hereinbefore directed in the discharge of debts, any distinction in said will to the contrary notwithstanding. Specific devi- 58. If, upon the hearing of any petition for the sale of lands are sold real estate, the com't shall decree a sale of any part that may entitled to con- have been specifically devised, the devisee shall be entitled to 1846 c. iT. 16. a contribution from other devisees, according to the principles which govern courts of equity in respect to contribution among legatees ; and children or issue provided for by sections twenty- eight and twenty-nine of the chapter entitled " Wills and Tes- taments," shall be regarded as specific devisees in such contri- bution. Undevised real 59^ When any part of the real estate of a testator shall chargeable descend to his heirs by reason of its not being devised or 7c'!l' ''®^,'^'~;, disposed of bv the will, the undevised real estate shall be first 1846, c. 1, s. 17. r^ , y ' „ , , . chargeable with payment of debts, in exoneration as lar as it will go of the real estate that is devised, unless from the will it shall appear otherwise to be the wish of the testator. To what period gQ. The mode of proceeding against the real estate of de- of selling realty ceascd persons prescribed by this chapter, shall be in use in all applies.— 1S46, cases where the will may have been proved, or letters of ad- ■ ' ■ ' ' ministration granted, on or after the first day of February, one thousand eight hundred and forty-seven ; and the mode of pro- ceeding against such real estate in use on the fourteenth day of January, one thousand eight hundred and forty-seven, shall be in use in all cases where the will may have been proved, or letters of administration granted, prior to the first day of Feb- ruary, one thousand eight hundred and forty-seven. Sales by heirs, (jf. ji^\\ sales, conveyances, or alienations of any lands of a years, &o., void deceased debtor, made by any devisee or heir at law, within two years after the probate of his will and qualification of the :^ Chap. 46.] executors and administrators. 29i r, or letters of administration on his estate, shall be as to creditors, to the creditors, executors, and administrators of such ^ '' ''• "' ®^' ^" executor, void as to deceased debtor. 62. Nothing contained in this chapter shall affect the right fjs^j' !!i'^°^_^'. of dower. c. i, s.20. 63. The crops of every deceased person, remaining ungath- ^/JJ^y^j'^!]^;^ ered at his death, shall in all cases belong to the executor or shall go to e'x'r', administrator as part of the personal assets, and shall not pass |f;'i3'^f„;;°' '" to the widow with the land assigned for dower, nor to the de- widow, visee of the land by a devise of the land to him, but only when such intent shall be manifest and expressed in the will. 64. Whenever process may issue against an executor who Service on ab- ',11/1 _L 1 J sent ex rs not may not have given bond, and the same cannot be served upon having given him by reason of his absence or concealment, a copy thereof ^ond^ ^^^^^^ shall be left at his last place of residence ; and on return of the "37^' matter, publication for six weeks in some newspaper shall be made for him to appear, and the same having been made shall be deemed due service upon him. 65. A female who maybe an executrix or administratrix Female es^r^^^ shall be allowed to make affidavit to her inventory, account of to'^mven'tory, sale, and account current, before a justice of the peace, Avho ^^'ji^'^J'^'"'^ ^ shall certify the same to the court. Sect. 1. Where granted, 1 Ire. 345, 2 Dev. 73. Executor may renounce, 1 Ire. 298, 8 Ire. Eq. 253, 1 D. & B. Eq. 199. Foreign administrator, 5 Ire. Eq. 365, lb. 190, 8 Ire. Eq. 246, 2 Jones, Eq. 51. Sect. 2. To whom, Bus. 242; appointee of next of hin, 1 Hay. 220, 1 Ire. 345. Wlien void, 3 Ire. 557; tcrong county, 4 Ire. Eq. 216. Form of grant, 2 Dev. 360, 1 D. & B. 27. May be revoked, 3 D.'& B. 65. Sect. 15. Bond; who may sue on: creditor, 1 Dev. 475, 2 Dev. 298; next of fen, 6 Ire. 397. Their assignee, 2 Hawks, 329. Sect. 16. Return of joint executors ; notes, 2 D. & B. Eq. 155, 8 Ire. Eq. 137. Fmal return ; effect of, 1 Dev. Eq. 58. Sect. 18. 1 D. & B. Eq. 199; 2 lb. 58; 7 Ire. Eq. 235. Sale of notes, 6 Ire. Eq. 74, Bus. Eq. 127. Sect. 21. Dirpiily of debts: justice's judqment, 7 Ire 231; rent, 4 Dev. 502; covenant and breach of trust, 2 D. & B. Eq. 235. D'evastaiyit, 1 Ire. Eq. 9, 7 Ire. Eq. 62. Rule in equity, 1 D.'& B. Eq. 46, 2 lb. 235. Sect. 22. Adcertisement in newspaper, 2 D. & B. Eq. 82; must be strictly complied with, 9 Ire. 135, 1 Jones, Eq. 128, 2 D. & B. Eq. 82. Sect. 24. 1 Ire. 66; lb. 332; 7 Ire. Eq. 127. Account how taken, 1 D. & B. Eq. 502, 2 lb. 155, lb. 287, lb. 442, 2 Dev. Eq. 137, lb. 167, 6 Ire. Eq. 341, 1 Jones, Eq. 130. UTio entitled after death of administrator, 4 D. & B. 139. Refunding bond, 5 Ire. 632; with one surety, >}. C. T. R. 238; tender of, not condition precedent, 2 Hawks, 329. Fxecutoi- be- C077ies guardian, 3 Dev. 529. Sect. 31. 6 Ire. 448; 1 lb. 36. Sect. 33. 10 Ire. 129; 11 lb. 65; 3 lb. 166. Does not apply to suits in equity, 2 Ire. Eq. 269. Sect. 35. Bus. 408; 8 Ire. 88. Sect. 37. 2 Ire. Eq. 602; 2 D. & B. Eq. 72; 7 Ire. Eq. 55. Sect. 38. 11 Ire. 224; 2 D. & B. Eq. 325; lb. 442; lb. 405; 1 Jones, Eq. 326. Sect. 39. 3 Ire. 342. Sect. 41. 1 1 Ire. 215 ; 9 lb. 365 ; 5 lb. 444 ; 4 D. & B. 189 ; 3 Dev. 221 ; Bus. Eq. 170. Sect. 44. MTiat administrator may proceed under this section, 11 Ire. 469; what he may sell, 13 Ire. 57. 25* 294 FENCES. [Chap. 48. ■ CHAPTER 47. FAIRS. Section I Section 1. Fairs appointed by county courts. 3. Inhabitants to liavo free liberty of 2. Commissioners appointed, who may fairs. regulate fairs. | Fairs appoint- 1- TiiE county courts, a majority of the justices of the conri'^ ''"^'y county being present, may appoint fairs in their respective counties, at such places as they may judge most proper for the convenience of the inhabitants, so as to give encourage- ment to industry, by collecting the inhabitants for the purpose of bartering and selling all such articles as they may wish to dispose of. Commissioners 2. When any court may resolve to establish a fair, they mayre' ^"i'- „, 1 T T 1 1 1 -ii • ii I 1 1 r scribed by two Cherokee Indian blood, withm the second degree, tor an witnesses.— R. amount equal to ten dollars or more, shall be void, unless S. c. so, s. ii. some note or memorandum thereof be made in writing, and signed by such Indian, or person of Indian blood, or some other person by him authorized, in the presence of two wit- nesses, who shall also subscribe the same. Sect. 1. Fraud a question of law, 13 Ire. 132, 11 Ire. 339. Deed good against all but creditors, i Ire. 102, 7 lb. Eq. 21. Creditor must establish his debt by judgment, 4 Ire. S29, Bus. Eq. 170, 1 Jones, Eq. 328. Fraud what : purchase by A., deed to B. 1 Ire. 553, deed to children before enactment of section three, 7 Ire. 341 ; indulgence to debtor, 1 1re. 470, 9 Ire. 191, lb. 365, 11 lb. 347, lb. 339, Bus. 105, 3 Dev. 12, lb. 144, 4 Dev. 197, 1 Jones, 559. What not fraud, 1 Ire. 179, 5 lb. 169, 1 Jones, 413. Bona fide purchaser, 6 Ire. Eq. 394. Sect. 2. 2 Mur. 171; 4 D. & B. 278; 2 Hay. 57. Purchasers of chattels, 3 Mur. 429. Sect. 3. Prospective only, 10 Ire. 496. Construction, Bus. Eq. 145, 1 Jones, 67. Sect. 4. 11 Ire. 89; 10 lb. 302; 8 lb. 340; 13 lb. 265; 4 D. &. B. 201; 1 lb. 29. Mortgagee a purchaser, 5 Ire. 91, 3 Dev. 105, i Ire. 149, 1 Jones, Eq. Sect. 7. Abates with original action, 3 Dev. 27. Sect. 11. 12 Ii-e. 252; lb. 285; 2 Dev. 289. Sale under parol autlwrity, 11 Ire. 359; under trust deed, 8 Ire. 455. Specific performance in equity, 1 Jones, Eq. 277, lb. 339, 4 Ire. Eq. 125. Parol trust, 1 Jones, Eq. 184, lb. 193, 6 Ire. Eq. 511, lb. 169. Sect. 12. Who a creditor, 1 Jones, 182, 1 D. &. B. 221. Removal part of the way, 8 Ire. 260. Defence: ignorance of plaintiff's debt. Bus. 143. Damages, 8 Ire. 26. Sect. 13. To pay the debt of another, 13 Ire. 86, 11 lb. 195, lb. 298, 4 DeT. 261. Consideration need not be expressed, 1 D. & B. 103. 26 302 GENERAL ASSEMBLY. [Chap. 52. CHAPTER 51. GAJMING CONTRACTS. Section I Section 1. Gaming or betting contracts void. 3. Players and betters competent -wit- 2. Securities for money or property lent nesses. for betting, void. | All gaming or 1. AH wagers, bets, or stakes made to depend upon any betting con- • i i i_ i i . tracts void.— "^^^e, or upon any gaming by lot or chance, or upon any lot, E. S. c. 61. chance, casualty, or unknown or contingent event whatever, shall be unlawful; and all contracts, judgments, conveyances, and assurances for and on account of any money or prop- erty or thing in action so wagered, bet, or staked, shall be void. Securities for 2. All Contracts, iudtrrnents, conveyances, and assurances to money or prop- ^ ^ . , , • erty, lent for '^^P^y or Secure any money, or property, or thing m action, betting, void. lent or advanced for the purpose of such wagering, betting, or ~ ■ ■"■ ■ staking as aforesaid, shall be void. Players and 3. No person shall be excused or incapacitated from con- betters compe- J. ■ , ,.j- • . 1 • , J, . tent witnesses. lessing or testitying touching any money or property, or thing in action, so wagered, bet, or staked, or lent for such purpose, by reason of his having won, played, betted, or staked upon any game, lot, or chance, casualty, or unknown or contingent event aforesaid ; but the confession or testimony of such per- son shall not be used against him, in any criminal prosecution, on account of such betting, wagering, or staking. Sect. 1. Elections, 12 Ire. 344. CHAPTER 52, GENERAL ASSEMBLY. Sectioh 1. Elections for members of General As- sembly, when and where held. 2. Senatorial districts, of what counties composed. 3. House of commons how composed; members how elected, 4. Separate places of election established, and discontinued by county court. 5. Time and places of, advertised by BhenS. Section 6. Inspectors for precincts appointed by county court. Neglect to act a mis- demeanor. 7. Clerk to furnish a list to sheriff, who shall notify them. If not appointed by court, or they refuse to act, how supplied, 8. Boxes for receiving tickets, furnished by shcriflF. Tickets, how received and put into boxes. Chap. 52.] GENERAL ASSEMBLY. 303 Section 9. Voters, how to give in their tickets. List of voters kept. Boxes, how opened and tickets counted. 10. Voters may be required to swear to their qualification. Inspectors to be judges thereof. 11. Polls, how made up, returned, com- pared, and elections declared. Pro- viso as to certain counties. 12. Polls in senatorial districts, how made up, where compared. Penalty on ofBcer for default — forfeiture, and misdemeanor. Polls examined, &c., in presence of three justices. Tie election, how decided. 13. Pay of sheriff for comparing polls in senatorial districts. 14. Vacancies before session of Assembly to be notified to governor by sheriff, under pain of misdemeanor. 15. Members resigning, &c., to notify gov- emor. 16. Governor, in such cases, to order a new election. 17. Elections under writ from governor or speaker, held as other elections. 18. What time of day opened and closed. 19. List of votes, on request, furnished by sherifT to members and candidates. Penalty for neglect of duty in regard to elections. 20. When no sheriff or coronei-, who to hold elections and make returns. 21. JIusters not to be on days, nor armed men assembled at places, of election. Penalty. | 1. The election for members to the senate and house of commons of the General Assembly, shall be held for the re- spective districts and counties, at the places where they are now held, or may be directed hereafter to be held, in manner as hereinafter prescribed, on the first Thursday in August, in the year one thousand eight hundred and fifty-six, and every two years thereafter. 2. Until the first session of the General Assembly, which shall be held after the year eighteen hundred and seventy-one, the senate shall be composed of members to be elected from the several districts hereinafter named, that is to say : The first district shall consist of the counties of Pasquotank and Perquimans; the second, of Camden and Currituck; the third, of Gates and Chowan ; the fourth, of Tyrrell and Hyde ; the fifth, of Northampton ; the sixth, of Hertford ; the seventh, of Bertie; the eighth, of Martin and Washington; the ninth, of Halifax ; the tenth, of Edgecombe ; the eleventh, of Pitt ; the twelfth, of Beaufort ; the thirteenth, of Craven ; the fourteenth, of Carteret and Jones; the fifteenth, of Greene and Lenoir: Section 22. Bribeiy at elections, penalty for. 23. Treating at elections, penalty for. 24. Jlerabers giving money, &c., to secure election, expelled. 25. General Assembly to meet third Jlon- day of November. 26. May be convened by governor and council, when. When by the coun- cil. 27. Members to convene. 28. Penalty on, for failing in duty. May be remitted. 29. To have freedom of speech, and be protected from arrest, &c. 30. Members elected returned to Assem- bly by sheriff. 31. Persons contesting seats, how to pro- ceed. 32. Witnesses failing to give evidence in contested elections, penalty on. Voter shall testify how he voted. 33. Pay of witnesses for attending. 34. Private laws, proceedings to procure the passage of. 35. Acts of \ssembly, when to take effect. 36. Journals of, deposited in oiEce of seo- retaiy of State, who shall certify copies, &o. 37. Principal clerks to hold office till others are appointed. 38. Two door-keepers appointed by keep- er of Capitol, or secretaiy, till regular appointment. Their pay. 39. Grave-stones provided for members, interred in Raleigh. Elections for members of General As- sembly, when and where held.— R. S. c. 52, s. 1. Senatorial dis- tricts, of what counties com- posed.— 1842, c. 27; 1852, c. 158. 304 GENERAL ASSEMBLY. [ChaP. 52. the sixteenth, of New Hanover ; the seventeenth, of Duplin ; the eighteenth, of Onslow; the nineteenth, of Brunswick, Bladen, and Columbus ; the twentieth, of Cumberland ; the twenty-first, of Sampson ; the twenty-second, of Wayne ; the twenty-third, of Johnston; the twenty-fourth, of Wake; the twenty-fifth, of Nash; the twenty-sixth, of Franklin; the twenty-seventh, of Warren ; the twenty-eighth, of Granville ; the twenty-ninth, of Person ; the thirtieth, of Orange ; the thir- ty-first, of Alamance and Randolph; the thirty-second, of Chatham; the thirty-third, of Moore and IMontgomery; the thirty-fourth, of Richmond and Robeson; the thirty-fifth, of Alison and Union ; the thirty-sixth, of Guilford ; the thirty- seventh, of Caswell; the thirty-eighth, of Rockingham; the thirty-ninth, of Mecklenburg; the fortieth, of Stanly and Ca- barrus ; the forty-first, of Rowan and Davie ; the forty-second, of Davidson ; the forty-third, of Stokes and Forsyth ; the forty-fourth, of Ashe, Surry, Watauga, and Yadkin ; the forty- fifth, of Wilkes, Iredell, and Alexander ; the forty-sixth, of Burke, McDowell, and Caldwell ; the forty-seventh, of Lincoln, Gaston, and Catawba; the forty-eighth, of Rutherford and Cleaveland ; the forty-ninth, of Buncombe, Henderson, Yancy, and Madison ; the fiftieth, of Haywood, Macon, Cherokee, and Jackson. House of Com- 3. Until the first session of the General Assembly which p™'ed!"'mem™" ^'^^^^ ^^ ^^^^'^ ^f**''" the year one thousand eight hundred and bci-siiow elect- seventy-one, the House of Commons shall be composed of lt'~isb2'c%. members elected from the counties in the following manner, namely: The counties of Cumberland, Granville, Guilford, Chatham, and Wake shall elect three members each ; the counties of Davidson, Edgecombe, Halifax, Iredell, New-Han- over, Orange, Randolph, Alamance, Anson, Beaufort, Bertie, Caswell, Cleaveland, Craven, Duplin, Forsyth, Johnston, Mecklenburg, Northampton, Pitt, Robeson, Rockingham, Rowan, Rutherford, Sampson, Warren, Wayne, and Wilkes shall elect two members each ; the counties of Buncombe, Madison, Surry, Yadkin, Ashe, Bladen, Burke, Cabarrus, Catawba, Cherokee, Davie, Gaston, Gates, Henderson, Hert- ford, Hyde, Lincoln, Martin, Moore, Nash, Onslow, Pasquo- tank, Person, Richmond, Stanly, Stokes, Union, Yancy, Alex- ander, Brunswick, Caldwell, Camden, Currituck, Columbus, Carteret, Greene, Jones, Lenoir, McDowell, Montgomery, Perquimans, Tyrrell, Washington, Watauga, Macon, Hay- wood, Jackson, Chowan, and Franklin shall elect one member each. Separate places 4. The several courts of pleas and quarter-sessions shall of election es- , , • -x i- ^i • ,• ,. ,i , i . tabiisbed, or havc power (a majority of the justices of the county being JiscoiitiuM by present) to establish, alter, discontinue, or create such separate county court. ', r ^ i- • ii ■ ^- ,■ r ,' — K. a. c. 52, places ol election in their respective counties, as, from time to ^- 2- time, they may deem expedient, thirty days' notice having been given in three public places, and at the court house, of the intended application for the same. Chap. 52.] general assembly. 305 5. The sheriffs, or other returning officers of the respective Time and counties, shall advertise the time and places of election, at the ^CTtfs^d'jjv'^" several places where the same is to be held, twenty days be- sheiifl'.— li. s. fore the election. ' c.62,s.3. 6. The court of pleas and quarter-sessions at the court pre- Inspectors for ceding each election, shall appoint one justice of the peace, ypj!j]'[e"by and as many freeholders as may be deemed necessary, as in- county coui-t— specters to superintend the election, at the several places ' ■°' ■"'**■ " where the same is to be held ; who shall attend at the places for which they are severally appointed, on the day of election, and shall be sworn by the sheriff, or in his absence by some justice of the peace, to conduct the election fairly and impar- tially, according to the constitution and laws of the State ; and fj^'i^'JI^gan'r in default of acting shall be deemed to be guilty of a misde- ' meanor. 7. The clerk of the court of pleas and quarter-sessions, im- ^I'^ji* '."jt"'" mediately after the court preceding the election, shall furnish sheriff, who the sheriff of his county with a list of the persons appointed 41','^"/'°"*^^' inspectors of the polls ; and the sheriff shall notify such per- sons of their appointment, at least twenty days before the day of election. If the court fail to make such appointment, or If ""' «PPO'"'- may not have appointed a sufficient number of inspectors ; or they'^'refuTe'vo'^ if those appointed shall die or refuse to act, then the sheriff, •■'ct, how^sup- with the advice of three justices of the peace, or, if none be 62,'^s'!'5r^'' ^' "' present, of three respectaijle freeholders, may appoint inspect- ors to hold the election, who shall be sworn as aforesaid. 8. The sheriff or returning officer, on the day and at the Boxes for re- place for holding each election, shall be provided with small "JSeaty'*' boxes, one for receiving the ballots for the senator, and the sheriff. other for receiving the ballots for members of the house of Tickets how commons; and the returning officer or his deputy (which puTinto boxes. deputy shall in all cases be sworn before proceeding to act) — "• S- c. 52, shall receive the tickets in presence of the inspectors, and put " each ticket in its proper box; and all the boxes shall be locked, or otherwise well secured, until the election shall be finished. Provided, that if no returning officer or his deputy shall be present, the tickets shall be received by one of the inspectors in the presence of the others, and put into their proper boxes. 9. Every person qualified to vote shall give to the returning Vo*ers,how to officer in presence of the inspectors, or, in the absence of such Uckets."^ officer, to one of the inspectors, a ticket rolled up, in which shall be wTitten the name or names of the person or persons for wliom he intends to vote ; and the names of all the persons i.i^t of voters for whom he votes in the commons' box shall be on the same '^'^P'" ticket; which ticket shall be put into the proper box, and, at the same time, two of the inspectors shall take down in sepa- rate lists the name of every person voting, distinguishing those who shall vote for senators in one list, and those for members of the house of commons in a second; and when the election shall be finished, the returning officer and inspectors, in pres- Boxes, how ence of such of the electors as may choose to attend, shall open "'"""''' ""'* 26* 306 GI^s'ERAL ASSEMBLY. [ChAP. 52. tickets count- the boxes oiie after another, and number the ballots of one box 9.7^-1838^0.^' before they shall open another, at the same time reading aloud 18- the names of the persons who shall appear in each ticket; and if there shall be two tickets rolled up together, or any ticket shall contain the names of more persons than such elector has a right to vote for, in either of these cases, such ticket shall not be numbered in taking the ballots, but shall be void. req*uu4™to ''^ ^^- Every person, before he shall be admitted to give-bis swear to their vote, shall, if required by the inspectors, or any one of them, qualification, gvi^ear that he is qualified according to the constitution, and Inspectors to hath Hot before voted at such election ; and the inspectors shall thereof;— R. S. have the sole and exclusive right to judge of the qualification c. 52, s. 11. of voters, except when there is an equal division of opinion between them, in which case the returning officer shall de- cide. Polls, how II Immediately after the close of the polls at any place of made up, re- , . •' i . r i turned, com- election, a coiTcct statement oi the number given lor each can- pared, and eiec- didate, and also the names of the persons voting, shall be tions declared.- ' . . r , ^ , i E. S.c. 52, s. s. made out and signed by the inspectors, and then be sealed and —1840,0.27, directed to the sheriff; and the same shall be handed by some one of the inspectors appointed for the purpose, to the sheriff of the county at the court house, on the next day, between ten o'clock, A. iw. and four o'clock, r. M. ; on the returns being made to the sheriff or his deputy, he shall, in the presence of the in- spectors who carried their respective polls, proceed to add the number of votes returned ; and the persons having the greatest number of votes shall be deemed duly elected : should any two persons have an equal number of votes, the sheriff shall decide Proviso as to by ^jg casting vote the person duly elected. Provided, how- ties. evet; that in the counties of Carteret, Currituck, and Hyde, the statement aforesaid shall be handed to the sheriffs of said counties on the first Tuesday after the election. riai'distric°r°" l^. The provisions contained in the preceding section shall how made up. be applicable to all elections for members of the senate, where the senatorial district is composed of not more than one county, as well as to elections for members of the house of commons ; but where any senatorial district is composed of more than one county, the sheriff, or other returning officer of each of the counties composing such district, shall, after receiving the re- turns from the inspectors, as prescribed in the last section, me(!t on the second Thursday in August, after the election, at the following places in their respective districts, for the jiurpose pired! """" of comparing the polls, namely : In the first district, at Wood- ville, on Little river; in the second district, at Indian Town, Dr. Marchant's store ; in the third district, at the house of Thomas J. Miller, in the county of Gates ; in the fourth dis- trict, at the house of Charles McCleese, in the county of Tyr- rell; in tlie eighth district, at Jamesville, in the county of Martin ; in the fourteenth district, at J. J. Pellelcer's INIills, on Hadnot's creek, in the county of Carteret; in the fifteenth dis- trict, at Kinston, in the county of Lenoir; in the nineteenth Chap. 52.] general assembly. 307 district, at Wayman Academy, in the county of Brunswick ; in the thirty-first disti-ict, at Liberty, in the county of Randolph ; in the thirty-third district, at the house of Daniel Chisliolm, in the county of Moore ; in the thirty-fourth district, at John Mallory's, in the county of Richmond ; in the thirty-fifth dis- trict, at Lanesborough, in the county of Anson ; in the fortieth district, at Mount Pleasant, in the county of Cabarrus; in the forty-first district, at Hall's Mills, in the county of Davie ; in the forty-third district, at Germanton, in the county of Stokes ; in the forty-fourth district, at the house of John Thompson, in the county of Surry ; in the forty-fifth district, at Taylorsville, in the county of Alexander; in the forty-sixth district, at Mor- ganton, in the county of Burke ; in the forty-seventh district, at Lincolnton, in the county of Lincoln ; in the forty-eighth district, at Rutherfordton, in the county of Rutherford ; in the forty-ninth district, at Asheville, in the county of Buncombe ; in the fiftieth district, at Franklin, in the county of Macon. Provided ahvays, that if any accident shall happen which may prevent any returning officer from meeting on the day afore- said, the returns shall be received on the day following. And ^^fo^VefouH; the returning officer, failing to attend at the time and place —forfeiture above mentioned, shall forfeit and pay five hundred dollars, to j^g^^^of''^" be recovered in the superior court of his county, by any person who may sue for the same, and moreover shall be deemed to be guilty of a misdemeanor. And when the returning ofiicers ?°"^^jf™„ shall be convened as aforesaid, the polls for the diflerent coun- presence of ties shall by them, in the presence of three justices of the peace, ttoee justices. (or if they cannot be conveniently procured, then in the pres- ence of three freeholders to be summoned by the returning officer of the county where they shall meet,) be examined and compared ; and a certificate under the hands and seals of the returning officers shall be given to the candidate in each dis- trict, for whom the greatest number of votes shall have been given. But if two or more candidates shall have an equal Jo^y^dccS — number of votes, the said officers shall determine which shall K. s. c. 52, s. 9. be senator ; and if no decision is made by them, then they shall ^^1842*^0^ ''27' determine the same by drawing, in like manner as the grand- s.'2; ie52, c. jury IS drawn. ^ -., ■ . 13. Every returning officer shall be allowed two dollars and ^f comp'arilig a half, for every thirty miles travelling to and from the place of poUs in seiuuo- comparing the polls, and the same sum for every day he shall \{'_ s.^cI'm,"! necessarily attend for that purpose, and also his ferriages, which 10. shall be paid by the treasurer of the State on affidavit made before any justice of the peace. 14. If any person elected to represent any county or district ^"0 se?s?on of in the General Assembly shall die before the meeting thereof, Assembly to be or from any cause shall fail, refuse, neglect, or delay, to accept "mai. by she^tf his appointment, the sheriff of the county, in which the person umier {xiiu of elected resides, or did reside, shall notify the governor of the "'j^'/'g '"■J,"°52_ same forthwith ; and for neglect of duty herein, he shall be s. 12. deemed to be guilty of a misdemeanor. 308 GENERAL ASSEMBLY. [ChaP. 52. s/»iiin"&Tto ^^' ^^ ^"y person elected to represent any county or district notiiyl'over- in the General Assembly shall, before the meeting thereof, s^'sTis'. ^" ''' resign, refuse, or decline to accept his appointment, he shall immediately notify the governor in writing of his determination, ^"ch^esto ^^' ■^" ^^^^ "^ vacancies that shall occur by death, resigna- order a new tion, or Otherwise, before the meeting of the General Assembly, s''c"52 7u ^^^ governor, on being notified as aforesaid, shall issue a writ "of election to the sherifl' or sheriffs of the county or district wherein such vacancies shall have occurred, commanding him or them to hold an election for a member of the General As- sembly to supply such vacancy, at a certain time therein to be specified. wHrfrom""ov- ■^'^" E^'^ry election, held in pursuance of a writ from the eruoi- 01- spSiik- governor, or by virtue of any writ from either house of the er.hem as other General Assembly, shall be conducted in like manner, as the elections. — K. ,,..,*;'. ' S. c. 62, s. 15. regular biennial elections, so far as the particular case can be governed by the general rules, and shall to all intents and pur- poses be as legal and valid, and subject the officers and persons elected to the same penalties and liabilities, as if the same had been held at the time, and according to the rules and regula- tions prescribed for the regular biennial elections. rvopenTdand ^^- Every election shall begin at ten o'clock, a.m. on the closed.— R. s. day appointed therefor, and shall close at sunset the same day. Lis^t^ofVotes ^^" Every returning officer, within ten days after tiie elec- 011 request fur- tion, shall, at the request of any person elected to serve in the ifffto'ra'eii!bers General Assembly, or any one who was a candidate, cause fair aii'd candidates, copies of the list of votes and the number of ticket ballots for each candidate to be made out and signed by the officer, and delivered to the person requesting the same, or to his order, on Penalty for payment of two dollars ; and if any officer shall refuse so to do, ?n?!^gard'^to"'^ or shall make elections in other manner than by this chapter elections.— R. is directed, or shall neglect or refuse to make returns of the S^ c. 52, s. 17, elections by him made or taken, the officer so offending shall forfeit and pay five hundred dollars, one half for the use of the State, and the other half to the person suing for the same, .^^'""orone'r'" ^0. If at any time it may happen that there shall be no who to hold ' sheriff in the county, the coroner or coroners shall hold the makereturns. elections for the county ; and when there shall be neither sheriff — R. S. c. 52, s. nor coroner, the elections maybe held by some respectable 19.-1842,0. freeholder appointed by any three justices of the peace of the county ; who, in conducting the same, shall have like powers, be under the same directions and restrictions, and subject to the same penalties as are conferred or imjio.'^ed ujioii sheriffs; and in all cases where any sheriff' holding an election shall die before proper returns thereof shall be made, his successor shall make the same, if they may not have been made by the coroner. be on°day°nor ^^" ^^ ^'^'^'^ ""* ^" '"^^^^"^ ^° ^""'^ °^ ^''■'^^* ^"^ regimental, armed I'lieii as- battalion, or Company muster on election days, or to assemble p^aceofelec- '^''"'"^'i "1^" o" the day of election, at any place appointed by tiun. law to hold elections for electors, governor, members of Con- s?c!'52'r2i. S^^^^' °'' members of the General Assembly, under the penalty '.{» Chap. 52.] general assembly. 309 of one thousand dollars, to be recovered of any person who shall call such muster, or assemble such armed men, and ap- plied one half to the use of the informer, and the other half to the use of the State. 22. If any person shall at any time before or after any elec- Bribery at elec- tion, either directly or indirectly, give any money, property, or peUaity for.— reward to any elector, or to any county or district, in order to R- s. o. 62, s. be elected ; or to procure any other person to be elected a member of the General Assembly; every person so offending shall forfeit and pay four hundred dollars, to any person who will sue for the same. 23. If any person shall treat with either meat or drink, on Treating at any day of election, or any day previous thereto, with an intent penalty for.— to influence the election, he shall forfeit and pay two hundred K. S. c. 52, s. dollars, the one half for the use of the county, and the other to the use of the person who shall sue for the same. 24. If any person elected a member of the General Assembly J'^^™'^,^^'"^^ ^ll shall by himself or any other person, directly or indirectly, give, to°secure eieo-' or cause to be given any money, property, reward, or present ^^' I^P^gl'^j^ whatsoever ; or give, or cause to be given by himself or another, 27. ' ' any treat or entertainment of meat or drink, at any public meeting or collection of the people, to any person for his vote, or to influence him in his election, such person shall, on due proof, be expelled from his seat in the General Assembly. 25. The meeting of the General Assembly shall be, bienni- f^mbiy't^eet ally, on the third Monday in November; and, when adjourned third Monday without time fixed for its next meeting, shall be deemed to be ^^k'^s^.'sT adjourned sine die, or until it may be sooner convened in the s. 26. manner prescribed in the following section. 26. The governor, with the advice of the council of State, ^^^^^^^by"";^. may convene the General Assembly before the time appointed eniorandcoun- as aforesaid for its meeting, or after its adjournment, whenever ^|^''J^ '^*^'''^'" it shall be deemed absolutely necessary. And if, at any such wiieu by tiie time, there should be no one duly authorized to exercise the l°ll''f_'^^/ ^' powers of governor, then the council of State may so convene the General Assembly. 27. Every person, elected to represent any county or district Jo™ene!-^K.'° in the General Assembly, shall convene at such time and place s. c. 52, s. 28. as may be appointed for the meeting thereof, on the first day, and attend to the public business as occasion shall require. 28. If any member shall fail to convene, or shall neglect to J^-IH^gythSr attend to the duties of his appointment, he shall forfeit and pay dutie°. for not appearing ten dollars, and two dollars for every day he may be absent from his duty during the session, to be deducted from his pay as a member. Provided, that a majority of the ";}fJ'R."™o!' members of either house of the General Assembly may remit 52, s. 29. the fines and forfeitures aforesaid, or any part thereof, where it shall appear that the person hath been prevented from attend- ing his duty by sickness, or other sufficient cause. 29. The members shall have freedom of speech and debate .l;;,l'"r4eeth, in the General Assembly, and shall not be liable to imjieach- und buprutect- 310 GENERAL ASSEMBLY. [ChAP. 52. &c'!!r i"^''' ™^"* °^ question, in any court or place out of the General 62^8. 30. ■ ''' Assembly, for words therein spoken ; and shall be protected, except in cases of crime, from all arrest and imprisonment, or attachment of property, during the time of their going to, com- ing from, or attending the General Assembly. edTeturned^to' '^^' '^^^ sheriff of every county and district shall make re- As'sem"blyV,° *"™ t° ^'''^ General Assembly, at their first meeting, of the ?52^s"li'^' P^"^^*^"^ elected in his county or district, to represent the in- ■ ' ■ ■ habitants in either house of the General Assembly. fetting'theTeat ^l" ^° P'-''"'^o" ^'^^l^ be allowed to contest the seat of any of a member, member of the General Assembly, unless he shall have given ceed.-K^.'s^c. ^° ^'^^ member thirty days' notice thereof in writing, which 52, s. 31. ' ' must state the particular grounds of such contest. Ifthe seat is contested on account of the reception of illegal votes, the notice must set forth the number of such votes, by whom given, and the supposed disqualifications ; and if the same is contested on account of the rejection of legal votes, the notice must give the names of the persons whose votes were rejected. No evidence shall be admitted to show that the contestant received illegal votes, unless he shall also have been notified the same number of days, and in the same manner. The same notice of time and place required in taking deposi- tions at law, shall be required and proved on the investigation. J5^"^«sse^s faU- ^ 82. Any justice of the peace, or any person duly author- dence iiTon- '" iz^d to take depositions to be read before courts of law, may Hons'^ enalt ^^^^ depositions to be used on the investigation, and may jons.pena y j^^^^g subpcenas for witnesses, which shall be executed by any officer authorized to execute process. And if any witness shall fail to appear, and give his deposition according to the subpoena, he shall forfeit and pay to the party causing him to v , , be summoned, forty dollars. And on such investigation no Voter compel- ., • j.i • • ji /. . P . . led to testify Witness in this, or in the case of any other contested election, — RS^'^'sz's ^h'^^l. be excused from discovering whether he voted at such 33. ■ ■ ■ ' ■ election, or his qualification to vote, except as to his conviction for any offence which would disqualify him. And if he was not a qualified voter, he shall be compelled to discover for whom he voted : but any witness making such discovery, shall not be subject to criminal or penal prosecution, for having voted at such election. Pav of witness- 33. Any witness appearing and giving testimony, shall be es for attend- . j.-i_i i , ■ <• ,i , P • •' , ing.— K. s. 0. entitled to receive Irom the person at whose instance he was 52" s. 31. summoned, ten cents for every mile travelling to and from the place and his ferriages, to be recovered before any justice of the peace upon the certificate of the commissioner. Private laws. 34. Any person who may desire the passage of a private rroceertings to i i ii • j.- c i • ■ , ,• i " ■■ •' procure tiie -l^w, sliall give notice ot his intention to make application, by S^sTsI'" advertisement in some newspaper of the State which ciren- 35. ■"■ ''■ lates in the county where the applicant resides, or in which such private law will operate ; or by advertisement at the door of the court house and three other public jjlaces in such coun- ty, for at least thirty days before the application ; and when Chap. 53.] GOVERNOR AND COUNCIL. 311 any private bill shall be introduced, a copy of such advertise- ment, with due proof of its having been so published, shall be produced, before the second reading thereof. 35. Acts of the General Assembly shall be in force only Acts of Assem- from and after thirty days after the rise of the session in which H^- when to they shall have passed, unless the commencement of the oper- li. s.c. 53,T ation thereof be expressly otherwise directed. ^''• 36. The clerks of the senate and house of commons, as Journals of, de- soon as may be practicable after the close of each session, [?°*''*l'' '"°^" shall deposit in the office of the secretary of State the journals who shall cer- of the General Assembly; and the secretary of State shall ^^"^gP'^-'-^^^- make and certify copies of any part or entry of said journals ; 37. and may take for the copy of each entry made and certified, the same fee as for the copy of a grant. 37. The principal clerk of each house of the General As- Principal ci'ks sembly shall hold his office for the term of two years, or until trn'^otiLr^an- another is appointed ; shall be present at such time and place pointed.— isjo, as may be fixed for the meeting of the General Assembly, and "' ^^' ^'^' on the first day thereof, and perform the duties of his office. 38. The keeper of the capitol (and if there be none, then Two door- the secretary of State) shall employ two suitable persons to p^f,','("j| j^P' place the two halls of the General Assembly in order and wait lieeperofcap- upon the members, until door-keepers can be regularly appoint- u,"tir&c'''''''' ed. And the persons so employed, shall be allowed, as a com- Their pay.— pensation, in full, the sum of three dollars each for their daily i^*"- <^- '^3, s. 2. attendance and services. 39. The governor shall have placed, at the grave of any Grave-stones member of the General Assembly, who may be interred in the Members, in- city of Raleigh, (whose remains are not intended to be removed teyeJ in Ra- by his friends,) suitable grave-stones, containing the namcKes. ' ' of the deceased, his age and the county he represented ; and the cost thereof shall be paid by the treasurer, on the warrant of the governor. CHAPTER 53. GOVERNOR AND COUNCIL. Section 1. Governor's election when held, and how conducted. 2. Beturns of election, when and how made by sheriff. Returns examined by secretai-y of State. If not regu- lar to send a messenger for them. 3. Poll books to be filed by sheriff v>-ith clerk of county court. Clerk to give receipt for them, which sheriff shall send to secretary. Section 4. If proper returns are not made secre- tary to inform Assembly. Proceed- ings thereupon. B. Forms of returns and directions fur- nished by secretary. 6. Returns, by whom and when opened. Election how determined. 7. Clerk omitting any duty about the election to forfeit ^ 100. 8. Forfeitures against returning officers 312 GOVERNOR AND COUNCIL. [ChAP. 53- Sectios recovered from their sureties ; also expenses of messenger. 9. Pay of shcrifl' for making returns. 10. How ascertained and paid. 11. Persons contesting election of gov- ernor, to give notice, &c. Proceed- ings thereon. 12. Depositions in contested elections, how taken. 13. Governor to reside at Raleigh. 14. A house provided for him, 16. Private secretary appointed. Section 16. Letter book kept in executive office. 17. Council to meet in Raleigh. 18. Seals for State and courts of record procured by governor. 19. New seals, when needed. 20. Seals, how prepared. 21. Paid for, &c. 22. Lost State seals to papers, how re- placed. 23. Thanksgiving day set apart, by pro- clamation. Governor's election, when 1. The sheriff of every county shall open polls at the several held and hoT election precincts of his county, for the election of a governor of conducted.-R. the State of North Carolina, on the first Thursday in August, mo c!'26 slT one thousand eight hundred and fifty-six, and biennially there- after on the same day ; which shall be conducted under the same rules, regulations, and restrictions, as are elections for members of the General Assembly. Eetums of 2. The proper returning ofiicer of every county shall, on or and how made before the first day of October succeeding any election for gov- by sheriff. emor, transmit to the seat of government and deliver to the secretary of State, a statement of the votes taken in his county for governor ; which statement shall be made from the poll books, in the following form, namely : — State of North Carolina, County. I, sheriff of the county of do hereby certify, that at the elections held in said county to elect a governor of the State, for two years from the first day of January next, at the places appointed by law for holding elections in said county, on the day of 18 , votes were given for , and votes for Given under my hand this day of 18 . Sheriff. And shall be sealed up and directed, by indorsement upon the sealed packet or envelope containing the said statement, to the speaker of the senate : and the returning ofiicer shall also in- dorse upon the packet a memorandum of the contents thereof, in this form : — "A statement of votes taken in the county of , at the election for governor, held on the day of ;" and shall sign the memorandum with his name; which returns shall be delivered by the secretary of State to the speaker of the senate, on or before the second week of the session of the General Assembly to be held next thereafter. And such returning ollicer shall, on or before the said first day of October succeeding such election, transmit to the secretary of State a duplicate of the vote for governor in his county, Returns ex- which the secretary shall keep in his oflice for the inspection sTCretary^f of any person wishing to examine the same: and the secre- State. tary of State shall immediately after receiving such original Chap. 53.] governor and council. 313 and duplicate statements, proceed to examine the packets con- If not i-cpilar, tainino' the orisfjnal statements and ascertain whether the same ^'"'^'"l "• '""s- >^ , ^ , senger lor are properly indorsed and directed : and he shall also examine them.— ir40, c. the duplicates, to ascertain if the statements are duly made ^'^'g^ ^'j^^^*'^' out in the form required by this section. And if any such packet, containing an original return, shall not be properly ad- dressed or directed, or shall not be properly sealed up ; or if any such duplicate return shall be defective or informal, the secretary shall forthwith employ some suitable and discreet person, as a messenger, to proceed to the county from which such return shall have been received, and require from the re- turning otiicer a proper and formal return, duly sealed up, directed, and indorsed, and a proper duplicate : which return and duplicate, such officer, upon the demand of the mes- senger, shall forthwith make out and deliver to him to be trans- mitted to the seat of government : and the secretary of State shall proceed in like manner, when no return or duplicate shall be transmitted and delivered to him from any county : and he shall furnish every such messenger with a written authority or commission to make the said demand, and shall sign the same, and certify it under the great seal of the State, which the gov- ernor shall affix upon application of the secretary. 3. The sheriff shall forthwith file with the clerk of the Poll books to county court, the statements and poll books, returned to him gi^ef'ff'Jj^ii by the returning officers, of the votes taken for governor; and clerk cf county the clerk shall receive the same and deposit and safely keep ^°,"^''* ■ ,1 • 1 • /-r 1 • I -rr • r ■ Clerk to give tnem in Ins othce, and give the sherili a receipt therefor, stating rec'pt therefor, for what precincts the returns and poll books are made. And T^'.'r'; *^"ff ,, 1 'A' 1 11 J • 1 r r^ • 1 shall transmit the sherin shall transmit to the secretary of State, the said to sec'y.— 1840, receipt at the time he transmits his duplicate of the votes. ''• ^^' ^- ■^• 4. Should it happen, that, at the meeting of the General If proper re- Assembly next after any election for governor, there shall not made.Tec'y 'to be proper returns made as aforesaid from any county, the inform As- secretary of State shall immediately communicate the fact to ^^"'^'J'- the speakers of the two houses, for the information of the General Assembly, who shall forthwith cause the returning officer to be summoned to appear and make, complete, or cor- rect his return, as the case may require; and should it seem to the General Assembly advisable, they may likewise cause the clerk of the county court to be summoned to produce the re- Proceedings turns and poll books, and to take such other steps as may is%i,\^°so^. 2. be deemed necessary for supplying, counting, and completing the returns. 5. The secretary of State, in every year in which an election Forms of re- for governor may be held, shall cause proper forms of returns '.""fons'fur-' to be prepared and printed, and send copies thereof with plain nishedby directions as to the manner of indorsing, directing, and trans- c';3j'73^*^' mitting the same to the seat of government, to all the return- ing oOicers in the State, at least thirty days before the time of holding such elections. 6. The speaker of the senate, in the presence of a majority of Kcturns by 27 314 GOVEENOK AND COUNCIL. [ChAP. 53. ■nhora snd the tvvo houses of the General Assembly shall open the returns w enopene . j^j. goy^rnor, during the first week in December in which the General Assembly shall be in session ; and upon a resolution or the suggestion of any member of either house, such house shall proceed to examine whetlier the person returned as hav- Election, how Ing the largest number of votes, is duly elected. Each house k'! S.TssttTs. f'^'^l^ separately determine all such cases ; and unless a ma- jority of each house shall declare, that the person returned as having the largest number of votes, is not duly elected, then the speaker of the senate, in presence of both houses, shall pronounce such person duly elected. Clerk omitting 7. If any clcrk of the county court shall negligently omit the ctoion'to' ^o .^° ^"^ perform any act, matter, or thing, by this chapter re- pay $ioo pen- quired, he shall, for such ofience, forfeit and ])ay one hundred 25fn?i842,' tlollars, to be recovered by the attorney-general for the use of c. 30, s.'4. ' the State, on motion in the superior court of law of the county of Wake, ten days' previous notice in writing of such intended motion being given to the officer. Forfeitures 8. The forfeitures for neglect, or refusal of a sheriff, coroner, i¥g officeTsre-" °'" •^th*'!' returning officer, to discharge his duties according to covered from the provisions of this chapter, shall be recovered against his aiso'exprnses' sureties in the same manner as against the officer: and when of me^sseuger. any messenger shall have been employed in manner hereinbe- —1^842, c. 30, £^j,g (jii-ep^gj]^ ^hg expenses of his employment, certified by the secretary of State, shall be taxed and allowed as costs in the recovery. Pay of sheriff 9. The sheriff, or returning ofliicer shall be entitled to two turns.— Sfs-'^c. dollars and a half for every day he may be necessarily cn- 63, s. 13. gaged in making the returns, and in travelling to and from the city of Raleigh, by the most usual road from and to his residence. Howascertam- 10. The compensation to sheriffs shall be ascertained and E S c.^'S, r certified by the secretary of State; and the same shall be !*• passed as public accounts, and paid by the treasurer. Persons con- 11. When any person shall contest the election for governor, of'gOTernorlo" °^ any One who may have received the largest number of votes give notice, &c. according to the returns of tlie sherifl's, such person shall give him notice in writing of the intention, and the specific grounds upon which he will contest the election, setting forth the county or counties in which he alleges that illegal votes were given, Proceedings Or any other violation of the law or constitution having rela- ■s'Ts's s 15 ^'°" ^° ^'^° '^^■-'^ which shall have taken place, at least thirty ' ^' ' days before the first day of December in the year in wliieh such election is held, and also in one or more newspapers pub- Ushed in Raleigh ; and satisfactory proof of such notice shall be required, before the General Assembly will proceed to in- quire into the trutii of the allegations. Provided, hourver, that if the person whose election is contested is out of the State, or not to be found at the time, thirty days' notice, in any news- paper published ill Raleigh, shall be deemed sufficient. Depositions in 12. In any contest under the preceding section, depositions Chap. 53.] governor and council. 315 may be taken with the same notice of time and place, as is untested eiec- required in taking depositions at law, and before such persons '',?. — 'il!°s^ c!''' as commissioners; and under the same rules, as to the sum-53, s. 19. moning and attendance of witnesses, as are prescribed in cases of contested elections of members of the General Assembly. And if the party cannot be personally served with notice, publi- cation thereof for the space of fifteen days, in any newspaper published at Raleigh, shall be deemed sufficient notice. 1-3. The governor shall reside permanently at the city of Gov. to reside Raleigh, during his continuance in office. g_ c'Ya's.^ 14. A convenient and commodious dwelling-house, together A house pro- with such out-houses as shall be necessary, shall be provided ^'_'^g^J°53''""3_ for his accommodation. 15. He shall appoint a private secretary, who shall enter in Private sec'y books kept for that purpose, all such letters, written by and to s^P^sg^s'.^.^' the governor, as are official and important; and such other letters as the governor shall think necessary. 16. The letter book shall be deposited in the office of the Letter book executive by the private secretary, and there carefully pre- uve' office.— °R. served ; and the governor shall produce the letter books before S. o. 53, s. 5. the General Assembly, whenever requested. 17. Whenever the governor shall conceive it necessary to counoiitomeet convene the council of State, the meeting shall be in the city '° ^'^l^'g'''''^^" of Raleigh, unless invasion, insurrection, or contagious disease shall render it advisable to call them elsewhere. 18. The governor shall procure for the State a seal, which Seals for Stnte shall be called the Great Seal of the State of North Carolina, ;!^,'^,'rp'''o,°'r. to be used for attesting and authenticating grants, proclama- ed by govern'r. tions, commissions, and other public acts, in such manner as ^ .S.c.53, s. may be directed by law, and the usage established in the pub- lic offices ; also a seal for every court of record of the State, for the purpose of authenticating the papers and records of such court. 19. Whenever the great seal of the State, or any seal of aKewseais court of record, shall be lost, or so worn or defaced as to ren- Ej's?c.T3^^st9. der it unfit for use, the governor shall provide a new one. 20. The seals thus provided shall be prepared with one side Seals, how pre- only, and calculated to make the impression on the face of the ^"g'sT^io. grant, commission, record, or other public act; and when new seals are provided, the former ones shall not be used. 21. The governor is authorized to issue his warrant on the Paid for, &c.— treasurer for the expense of procuring said seals; and the same R-S.c. 63,s. ii. shall be delivered to the proper officers, who shall give a receipt therefor and be accountable for their safe keeping. 22. In all cases where any person may find it necessary to Lost State seals have the seal of the State put again to any public paper, other XlaceiL— K^ than a grant for lands, he may prefer his petition to the gov- S. c. 53,s. 12. ernor and council, who shall, if they shall deem the same pro|ier, direct the secretary to put the seal thereto. 2o. The governor is directed to set apart a day in every Thanksgiving year, and by proclamation give notice thereof, as a day of day set apart 316 GUARDIAN AND WARD. [ChAP. 54. i'ioif-i8«'" f?^''"?" ^"'^ P"^''^ thanksgiving to Almighty God, for past Ees. ' blessings, and of supplication for his continued kindness and care over us, as a State and as a nation. CHAPTER 54. GUARDIAN AND WARD. Section 1. Fathers, by deed or will, may appoint guardians. 2. Superior and county courts to have cognizance of matters concerning or- phans ; to appoint guardians and take bonds. Justices, &c., liable for tak- ing insufficient security. Proviso. 3. Court may commit the person to one and estate to another; and appoint yearly sums for support and educa- tion. Commissions to tutor on dis- bursements only. 4. In cases of divorce, who to be guar- dian of the children and their estate. 5. Bonds, how payable; remedy on them. 6. Clerk to record the n.imes of justices on the bench accepting bonds. Pro- viso for justices dissenting. 7. Guardians appointed of estates of children whose fathers are alive. 8. One bond to be taken if wards have property in common. 9. Clerk of superior court. Sec, to cer- tify appointment of guardians to county courts. 10. Bonds renewed triennially. Clerk to summon guardians failing to renew. 11. Guardian to render account of ward's estate, on oatli. 12. Orphan's court to be held. Accounts rendered annually. Clerk, ex officio, to summon defeulting guardians. 13. Power and duty of courts over guar- dians abusing their trusts; and when they or sureties likely to become in- solvent. 14. Guardian removed, or li.able to be, to be reported in certain cases, by clerk, to attorney-general or solicitor. How proceeded with. 15. Eecoiver appointed to manage ward's estate under directions, &c. 16. Compensation to attorney-general and solicitors. 17. Property, how obtained from receiver. | Section 18. Gi-and-jui-y to present orphans with- out guardians, and all abuses of guardians. 19. Estates of orphans without guardians, to be secured, &o. 20. Clerk's fee for issuing summons, how paid. 21. Guardians to take possession of wards' estates. 22. To sell, by order of coui-t, his perisha- ble estate. 23. To lend out money, and account for interest annually. Bonds to bear compound interest ; maj' be assigned to wards on settlement. 24. Slaves and stock, when to be kept on ward's land. Proviso, if stock be- comes too large. 25. Land and slaves, when and how to be rented and hired. Houses, fences, &c., to be kept in repair. 26. Sales, &c.| how made. 27. Guardian liable for suffering ward's land to lapse, or be forfeited for taxes, &c. When may sell timber, &c. 28. Allowed disbursements and expenses, and commissions. 29. Ward residing abroad and having prop- erty m the State, may remove it through guardian. 30. By petition in equity, 31. Power of courts of equity over or- phans, &c., not abridged. 32. Estates of infants sold to promote their interest, wlion, &c. 33. Miinncr of making sale, and applying and securing proceeds. 34. When ward is indebted, how guardian to sell his property. Proceeds to be applied as assets of deceased debtors. 36. Siuctics of guardians in danger of loss, how relieved. 36. Female guardians may sweai- to tUoir returns before justices. Chap. 54.] guardian and wabd. 317 I 1. Where any father, whether of fvill age or a minor, shall Fathers, by nave a child under the age of twenty-one and not married, jj™'^°'jp^'"j whether born at the time of his death, or in ventre sa mere, he gujirdians.— r. may by deed executed in his lifetime, or by his last will and *" "' ^*' ^' ^' testament in writing, in such manner and from time to time as he may think fit, dispose of the custody and tuition of his ,'-^'' child, for and during such time as he shall remain under the age of twenty-one years or for any less time, to any person or persons ; and every such disposition shall be good and elfectual against every person claiming the custody and tuition of such child ; and the person to whom such custody or tuition shall be so disposed or devised, shall have the same powers, rights, and privileges, and be subject to the same liabilities, rules, and regulations as other guardians. | 2. The superior courts of law, and fBe' courts of pleas and Superior and quarter-sessions, within their respective counties, shall have to ha^'cwiL- full power, from time to time, to take cognizance of all mat- ance of matters ters concerning orphans and their estates, and to appoint p°imfs™'t°f,,p.'" guardians where none have been appointed by the father, and point piardians where to them it shall appear necessary; and shall take good ^ security of all the guardians by them appointed for the estate of the orphans. And if any court shall commit an orphan's estate to the charge or guardianship of any person, without taking good and sufficient security for tlie same, the justices Justices, &c., or judge appointing such guardian shall be liable for all loss i^^f^gy'^jJig^t and damages sustained by the orphan for the want of such security. security being taken, to be recovered by action at the suit of g™"54'~2_ the party grieved. Provided alicays, that where the sureties were good at the time of their being accepted, the justices or judge shall not be liable. 3. The court may commit the tuition and custody of the Court may orphan to one, and the charge of his estate to another person, pe"™fto 'one either when the guardianship is first granted, or at any time and estate to thereafter, whenever it shall appear best for the orphan, and ''"''™'^'"- most conducive to the proper care of his estate and his suit- able nurture and education so to do, instead of granting the general guardianship to one person: and in such cases the May appoint court shall order and appoint what yearly sums of money, or yearly sums for I II 1 1 r 1 1 support ana other provisions shall be made lor the support, nurture, and education, education of the orphan. And the said court, or the court of equity of the same county, may, from time to time upon ap- plication made, reduce or enlarge the allowance so appointed, and prescribe the time and manner of paying the same ; and take all such further order, as, due regard being had to the situation of the orphan, his condition in life, and the kind and value of his estate, may seem just and proper. And all pay- ments made by the guardian of the estate to the tutor of the person, according to any such order or appointment, shall be deemed just disbursements, and be allowed in the settlement of his accounts; but for the payment thereof by the one, and the receipt thereof bv the other, merely, no commissions shall to tutor on dis- 27* 318 GUARDIAN AND WARD. [ChAP. 54. bursements be allowcd to cither; but may be to him disbursing, and only si.'lT,"'"' '■ on his disbursements. In cases of di- 4. Wliciicver parents, divorced from the bonds of matri- vorce, wlio to mony, or from bed and board, simll have any cliiid under the be gunrdian ol •' ' ' .■',,. tlie children age oi twenty-one years, the court granting the divorce may totes —Tsss" c commit his custody and tuition to tiie father or mother, as 16, s. 1,2. ' may be thought best; and if such child shall be entitled to any estate, the court may appoint a fit and proper person to take the care and management thereof, who shall enter into bond with security as guardians of orphan's estates, and shall be regulated in like manner in all respects ; but shall not have any care of, or authority over, the person of such child, unless the guardian so appointed be the father or mother. And the court may commit the custody of the infant child, in the first place, to one of the parties for a time to be limited by the court ; and after the expiration of that time, to the other party, and so toiies quolies. Bonds how 5. All bonds taken from guardians shall be made payable edym^t'iilm - ^° ^'^^ ^*^^*'^ °^ ^oxth Carolina, and shall be acknowledged in ' K."S. c. 54,s.3. court and recorded ; and any person injured, may, at his own proper costs and charges, prosecute a suit thereon, and recover all damages and costs which he may have sustained by rea- son of the breach of the condition thereof: and if judgment shall be rendered against the relator, he shall pay costs. Clerks to re- 6. The clerk of the county court shall record and enter at of justices'ra^ large on his docket, the names of the justices of the court who the bench ac- shall be present at the granting of any guardianship, and ap- i'an bonds."'" " proving of the sureties to the guardian bond; and the clerk shall certify upon the bond the names of said justices ; and no justice of the peace, to whom any guardianship shall be committed, shall be permitted to sit on the bench at the time Proviso for ^^ '^^^ appointment. Provided always, that any justice of the justices not as- peace, present and not concurring in the grant of such guar- ctM^f-'T^ ^" diauship, or in the acceptance of the sureties, may require it, and the clerk shall record on the minutes and certify on the bond, that such justice does not concur in the appointment, or in the acceptance of the sureties taken ; and such certificate and entry shall exempt the justice from liability on account of the bond. Guardians np- 7. The superior and county courts shall appoint a fit person pointed "I es- , , I ,| ' , i_ c ±\ i I i i tales of chii- to take tile care and management ot the estates, real and per- dren whose sonal, rights and credits of any person under the age of twenty- alive.— R. S. c. 0"c years, although the father of such minor may be living. 45,8.5. And the person appointed shall enter into bond with security, as required of guardians of orphans, and shall be governed in all res])ects by the laws relative to guardians and orphans as to the property and rights of orphans, but shall not have any care or authority over the person of such minor. One bond giv- 8. When the same person is appointed guardian to two or cnwhenwai\is more miuofs, possessed of their estate in common, the court Chap. 54.] guardian and ward. 319 may take one bond only for the execution of his trust, upon in common.— which each of the minors may have his several action. R. s. c. 54, s. 6. 9. Whenever the court, other than the court of pleas and clerk of sup'r quarter-sessions, shall ai)point a ffviardian of any minor, or of '^^""':V'^<=-' t°^ 1 ■ ,,,11 11 1 . ,1 1 ^ [•ertityappomt- his estate, the clerk or clerk and master, as the case may be, 01 ment ofguai- such court, shall certify the appointment to the county court '''='"^'^™"'y of the county, and transmit the guardian bond to that court, c. 54, s. 8. ' there to be recorded, together with the certificate of appoint- ment. 10. All guardians shall renew their bonds in the several Bonds renewed county courts every three years, during the continuance of (^.||;"i"';y ^un,. their guardianship ; and the clerks of the several county courts ni:'n gu:inJians shall, in virtue of their office, issue summons against every neK.—lCs'c. guardian, in whatsoever county he may reside, who shall fail si, s. 7. to comply with the requisitions of this section ; and upon a return that the guardian is not to be found, an alias shall issue, and if upon the return thereof the guardian is still not to be found, the court shall remove such guardian from office, and appoint a successor, unless the former guardian shall at that court renew his bond. Provided, that no prosecuting officer shall be entitled to charge a fee in any such case. 11. Every guardian, at the next county court afler hjs ap- Guardian to pointment, shall exhibit an account upon oath of all the estate of'ward's es- of his ward, which he shall have received ; and every guardian tatc, on oath. shall annually exhibit his account and state of the profits and To.'' ''^'° ' disbursements of the estate of his ward upon oath ; and such accounts shall be entered by the clerks in particular books, provided and kept for that purpose only. 12. The justices of every court of picas and quarter-sessions. Orphan's court shall, on the first day of the court which shall be held next after the first day of January in every year, hold an orphan's court for the purpose aforesaid ; and every guardian, whether appointed by deed or will, or by any court, shall exhibit such account as aforesaid ; and the court shall examine into all ac- counts of guardians, so exhibited; and the clerk of the court. Accounts ren- under the penalty of one hundred dollars to be applied to the ''Y'^'' aunu- use of the ward, shall, ex officio, issue summons, returnable to cierk, ex of- the next court, against all guardians wherever resident, who-^''"' '°j?"™: shall fail to exhibit their accounts as aforesaid ; and if any guardians.— guardian, being summoned, shall wilfully neglect to appear, or ^- ^- ''• ^*' ^■ obstinately refuse to exhibit such account, the court may issue an attachment for such contempt, and commit him until he shall exhibit the same, and may likewise remove him. 13. When a superior or county court shall be informed that Po-ncr and any guardian appointed by them, or by will or deed, doth waste o"*'J' guardians or convert the money or estate of any ward to his own use, or abusing their in any manner doth mismanage the same ; is about or intends ^ilen Ihev or to marry him or her in disparaweraent, or neglects to educate suretie-; likely ■ ■', ■ ■■ 1- ^^ 1 ■ I ^ • tohecoine in- or raaintam any ward accordmg to his or her degree orcircum- s„ivt.,it.— K. S. stances ; or where any such guardian or his sureties are likely c. u4, s. is. to become insolvent, the court shall have power from time to 320 GUARDIAN AND WARD. [ChAP. 54. time, and at all times when tlioy think proper, to make and establish such rules and orders for the better ordering, man- aging, and securing such estates, and for the better education of and maintaining such ward, or to appoint another guardian, as they shall think fit and convenient. Guar.lianre- 2.4. Where any guardian shall be removed, and another ner- moved, or ha- ,,. ,,'^ -ii i i- ,iii h\e to be, to be son shall not be apponited, or where any guardian shall by reported in reason of not complying with his duties become liable to be certain cases, j ui i i i i- i ^ i i by clerk, to removed, although such order ot removal may not be made, solicftor"' °'" the clerk of the court shall certify to the attorney-general, or Howproeeeded to the solicitor of the circuit, the name of such guardian and Ti^sT^^**' *^' ^^'® sureties, and the proceeding had against him ; and the at- torney-general or solicitor shall forthwith institute a suit in the court of equity in the same county, by bill, petition, or other proper proceeding against the sureties and guardian, for an ac- count of the guardianship, and for securing the estate of the ward; and upon such bill or proceeding, all proper accounts may be taken, all necessary orders made, and a decree had ac- cording to the course of the court, as well against the sureties as the guardian. Eeceivernp- 15. The court shall have power upon such proceeding, to manage ward's appoint the clerk and master, or other discreet person, a re- cstate under ceiver to take possession of the ward's estate, to collect and —iUi"T.'ii^' receive all moneys due to him, and to pay the same into court, s- 2. or to secure, loan, invest, or apply the same, and to superin- tend and direct his estate for the benefit and advantage of the ward, and out of the same to defray the charges of his support, nurture, and education, under the direction and subject to sueh rules, orders, and directions in every respect, as the court from time to time may malce in regard thereto : and the accounts of such receiver shall be returned, audited and settled, from time to time, as the court may direct, making sueh allowances to the receiver for his time, trouble, and responsibility, as shall seem reasonable and proper. Compensation 16. The attorney-general or solicitor shall prosecute the suit, and soiic^tois— fiid take all necessary orders therein, and for his services the 1846, c. 41, s. 3. court shall allow him reasonable compensation according to the circumstances of the case. Property, how 17. Whenever another guardian shall be appointed, he may obtamod trora i , .... , ,i i r i ■! • r receiver.— ^PP'y by petition to the court lor an order upon the receiver to 1M6, c. 44,s. 4. pay and possess him of the money, estate, and elTects of his ward ; and in case no such guardian shall be appointed, then the ward on his coming of age, or in case of his death his ex- ecutor or administrator shall have the like remedy by petition. ^'T'^fo7'° 18. The grand-jury of every county shall annually at the ph!mrwm"iout orphan's court, be charged with, and shall present to the court giiarriians, and jn writing, the names of all orphan children within their all abuses of .Pi i .. i- -r i i i ^ .. {guardians.— R. county, that havc not guardians, it not bound out. to some h. c. 64, s. 19. trade or employment; and also all abuses, mismanagement, and neglect of such guardians as are appointed by the court of their county. Chap. 54.] guardian and ward. 321 19. AVIienever an orphan having any estate shall be pre- Estates of or- sented by a grand-jury, for whom no suitable person will L'araisuis tolie become guardian, the clerk of the court shall give notice ^Ltnroii, S:c.— thereof to the attorney-general or solicitor, who shall apply in ^''*''' '^- ***• behalf of the orphan, to the court of equity of the county where such presentment is made, and the court shall proceed to secure and manage the estate of such orphan, according to the provisions of the foregoing sections of this chapter. 20. The clerk's fee for issuing any summons against guar- ciei-k's fee for dians for their supposed defaults, as izr this chapter directed, p-.^..!:! K.' s.^o. shall be paid by the party in default. Unless the guardian, si, s. 12. before the issue of such summons, shall have finally settled with his ward, or was prevented by sickness or other un- avoidable cause from exhibiting his account, when he shall not pay costs. 21. Every guardian shall take into possession, for the f'uavdians to use of his ward, all his estate, and may bring all necessary wards'e^tates.- actions therefor. E- s. c. 54, s. 9. 22. Every guardian shall obtain an order of the court to Tose_uby or- sell and dispose of all such goods and chattels of his ward as his perishable may be liable to perish, consume, or be the worse for keeping, estate.— R. S. (except in the instances hereafter mentioned,) for the most that ■ > • • can be got for the same, by public sale and in reasonable lots, having first advertised the same twenty days, at the court house and three other public places in the county; and shall, for enhancing the price, give six months' credit upon good security. And such guardian shall diligently endeavor to col- lect the money, upon pain of being answerable therefor; and if the same cannot be collected before the ward shall have a right to demand it, or such guardian shall be removed, he may assign the security to the ward in discharge, for so much due from him. 23. Where the profits of any ward's estate shall be more To lend their than sufficient to maintain and educate him, the guardian shall ™u",7for'tater- lend the surplus and all other sums of money in his hands, be- estaunually. longing to such ward, upon bond with sufficient security to be repaid, with interest annually ; and all the bonds, notes, and other obligations which he shall take as guardian, shall bear '^°"'^^ '°]'*:'"^ compound interest, for which he shall account ; and when the terest— may debtor or his sureties are likely to become insolvent, the guar- ^^^ assigned to dian shall use all lawful means to enforce the payment thereof, ment.— K. S. on pain of being liable for the same ; and he may pay the "^^ ""'' ^' ^^' same to the ward on settlement with him. 24. Where any ward shall have lands, and a sufficient Slaves and number of slaves to cultivate and improve the same, the fo be kept on slaves, (unless otherwise ordered by the court,) shall be em- "■"''.'.'^^ '-'/^'["ij ployed on the lands and farm of such ward ; and all necessary becomes too horses, cattle, sheep, and hogs shall be kept upon such lands ''"'|T'7ii ^" and farm until the ward shall come of age. Provided, never- '^' ' °' thelcss, that if the stock grow too numerous, or it shall be to the advantage of the ward, his guardian, by order of the court, 322 GUARDIAN AND WARD. [ChAP. 54. shall sell such part of the stock as the court shall think fit ; and all plate shall be preserved and delivered to the ward at age, in kind, according to weight and quantity. Land and 25. Every guardian, where it is not deemed to be the inter- andhowtobe 6st of the Ward to employ his slaves upon his lands and farm, rented and shall hire out the slaves and rent out the lands. Provided ahvai/s, that no guardian shall let any land belonging to his ward, for a longer term than the ward be of age, or in other manner than by lease in writing; and that special care be had that the tenant shall improve the farm, and keep the Houses, fences, houses, orchards, and fences thereon, or that shall be put on S*reDair^^^' the same, in good and sufficient repair, and leave the same so S. c. 54, s. 15. at the expiration of the lease ; and that provision be made in such lease for preventing all kind of waste, and the using of any timber other than for the repairing and keeping up the farm. Sales, &c., how 26. All sales, hirings, or rentings, by guardians, shall be 64, s. 16. made and conducted in the same manner and under the same rules and regulations, and the same penalties for disobedience, as prescribed for sales made by administrators. Guardian lia- 27. If any guardian shall suffer his ward's lands to lapse or ble for suffer- . ing ward's land become forfeited, or be sold for the non-payment of taxes or to lapse or be other ducs, he shall be liable to answer the full value thereof taxes, &c. to his ward. And if any ward shall not have slaves to culti- vate his lands, or it may not be deemed best that they should do so, and the guardian cannot rent the same for enough to pay the taxes and other dues thereof, and there shall not be money or perishable estate sufficient for that purpose, the When may sell guardian, with the consent of the court, may annually dispose timber, &c.— of, or Use SO much of the light wood, box, or rent so many K. S. c. 54 s. . ^ % 17. ' ' ' ' pine trees, or sell so much of the timber on the same, as shall raise enough to pay the taxes and other dues thereon, and no more. Allowed dis- 28. Every guardian may charge in his account all reasona- and expenses, ble disbursements and expenses ; and if it shall appear to the and cominis- court that he hath really and bona fide disbursed more in one 54, S.22. 'year than the profits of the ward's estate, for his education and maintenance, the guardian shall be allowed and paid for the same out of the profits of the estate in any other year. Provided, that such disbursements be, in the opinion of the court, suitable to the degree and circumstances of the estate of the ward. The court shall likewise allow commissions to the guardian for his time and trouble in the management of the ward's estate, in the same manner and under the same rules and restrictions, as allowances are made to executors and administrators. Wards residing 29. Where any ward, whether infant or person of nonsane abroad and ... •'. ' r^, , ■ ,, , i-ji i j. havini; prop- memory, residing in another fc>tate shall be entitled to any per- erty in the sonal estate in this State; or to :uiy money arising from the reinovo it " sale of real estate sold for partition or otherwise; or to any through guar- personal property substituted for realty by decree of court, Chap. 54.] guaedian and ward. 323 whether the same be in the hands of any executor, adminis- d'rw.— R. s. c. trator, or other person holding for'the ward ; or in the hands of jiJ^^' T-is s any guardian, residing in this State, in whatsoever mode ap- i, li.' pointed ; or if the same (not being adversely held and claimed) shall not be in the lawful possession or control of any person, the guardian of such ward duly appointed at the place where such ward may reside, may remove such estate to the residence of the ward in the following manner, and in no other. 30. He shall apply by bill or petition to the court of equity By petition in of the county in which the property or some portion thereof "'glj^^'j^^'^^lf- is situated, or in which the defendants or some of them may is42,'c.'38,"s.2. be resident, and shall show to the court a copy of his appoint- ment and bond duly authenticated, and shall prove to the court that the bond is sulhcient, as well in the ability of the sureties as in the sum mentioned therein, to secure all the estate of the ward wherever situated. Whereupon the court, all proper parties being before it, shall direct proper accounts to be taken and make every necessary decree, to the end that the guardian may obtain possession of all the estate of his ward. 31. Nothing contained in this chapter shall be construed to Po-n-cr of courts restrain or abridge the power of the court of equity in any orphausf&c?,' matter or thing relating to orphans, or wards, or their estates; not abridgea.— but that court may hold, use, exercise, and enjoy the same ju- 25. "' '^' risdiction, power, and authority therein, to all intents and pur- poses, as heretofore. 32. On application of the guardian of an infant by bill or Estates of in- petition to a court of equity, showing that the interest of the [fromoTe'their infant would be materially and essentially promoted by the nitercst, when, sale of any part of his estate, real or personal, the court may f4''^2ij.^' °' cause tlie truth of the matter to be ascertained, and thereupon decree that a sale be made by such person, in such way and on such terms, as the court shall adjudge. 33. No sale made under such decree shall be valid until the Manner of same be confirmed by the court: no conveyance of title shall ™||n"ow*'pi^J- be made, until the court shall order it and designate the per- c^ee.is uppiied son to make the title ; and the proceeds of the sale shall be R."s!'i'!'5r^sr exclusively applied and secured to suoh purposes and on such 2'- trusts, as the court shall specify and direct. Provided (dicaj/s, that whenever in consequence of such sale the personal or real estate of the infant is saved from demands, to which in the first instance it might be liable, the court shall declare and set apart a portion of the personal or real estate thus saved, of value equal to the real and personal estate sold, as property exchanged for that sold ; and in all such cases of sale, whereby real is substituted by personal, or personal by real property, the beneficial interest in the property acquired, shall be en- joyed, alienated, devised, and bequeathed, and shall descend and be distributed, as by law the property sold might and would have been had it not been sold, until it shall be recon- verted from the character thus impressed upon it by some act of the owner, and restored to its character proper. 324 GUARDIAN AKD WAED. [ChaP. 54. When ward is 34. When any guardian shall have notice of a debt or de- gutuSto^s^ii mand against the estate of his ward, he may apply to the Sis property, court wherein the guardianship was gi'anted for an order to sell so much of the personal or real estate of his ward as may be suificient to discharge such debt or demand ; and the order of the court shall particularly specify what property may be Proceeds to be sold, and the terms of sale ; and the proceeds shall be consid- set'ol'de* as'd ^^^'^ ^^ assets in the hands of the guardian for the benefit of debtors.— i:. the creditors, in like manner as assets in the hands of an ad- b. c. 63, s. 11. niinistrator or executor; and the same proceedings may be had against the guardian with respect to such assets, as might be taken against an executor or administrator in sim- ilar cases. Sureties of 35. Any surety of a guardian, who shall be in danger of la^e'i^ofloss Sustaining loss by his suretyship, may file his petition in the how" relieved.' court where the guardianship was granted, setting forth the ~^\ ^' '^' ^*' circumstances of his case and praying relief; and thereupon the defendant shall be required to answer the premises accord- ing to the course of the com-t. And if upon the hearing, the court shall deem the petitioner entitled to relief, the same may be granted in such manner and to such extent, by compelling the defendant to give security to indemnify the petitioner against such apprehended loss, by sequestration of the prop- erty or by the removal of the defendant from the guardianship, .or in any manner as to the court shall appear to be just; and the court may from time to time pending the petition, make such interlocutory order and decree as may tend to the better securing of the petitioner. Female guardi- 36. Female guardians shall be allowed to make affidavit to to tUei'r re^turils their accounts before any justice of the peace, who shall cer- before justices, tify the same to the court. Sect. 1. 2 D. & B. Eq. 325. Not for grandchlMren, Bus. Eq. 46. Sect. 2. Where guardian has left tiie Slate, 11 Ire. 37. Who apjmiited, 1 Hay. 303, 1 Jlur. 231, 2 lb. 122. One acting (w guardian, 2 Car. L. R. 411. Sect. 5. Vutij of guardian: obligatim of bund, 4 D. & B. 194, 1 Ire. Eq. 282. Negli- gence, 4 Ire. Eq. 64, 1 Jones, Eq. 167, lb. 331. Sect. 10. Huccessire bonds cumulative, 3 Ire. Eq. C02, lb. 689, 6 Ire. Eq. 115. Liability of clerk, 1 Jones, 364. Sect. 23. 3 Ire. Eq. 64. IIow interest compounded, 11 Ire. 227. When compound inter- est ceases, 3 Dev. 430. May take real securitu, 3 Ire. Eq. 549. Sale of bonds mj guardian, 1 Ire. Eq. 342, lb. 337, lb. 340, 3 lb. 99, 4 Ire. Eq. 281; bona Jide sale, 5 Ire. Eq. 122. Sect. 25. Jlired out to what time, 13 Ire. 475. Sect. 28. Allowmntt of commissions, 1 Ire. Eq. 136. When commissions u-ill exceed income, 2 Ire. Eq. 354. Accounts of guardian : father, guardian, 2 Ire. Eq. 478; ward to take bomis, 6 Ire. Eq. 238; board of xcards before apjiointment. Bus. llii; interest, 1 Dev. Eq. 882; executor, guardian, 1 D. & B. Eq. 564; seltlancnl, 2 D. & B. Eq. 155, 8 Ire. 178, Bus. 480, 5 Ire. Eq'. 136, 1 Jone?, ICq. 106. Sect. 32. 5 Ire. Eq. 136, Bus. Eq. 86. Sect. 34. What a valid sale, 11 Ire. 431, 1 lb. 259. Pnorily of debts, 3 Ire. 501. Sect. 36. 2 Ire. Eq. 697, 1 D. & B. 475. Chap. 55.] habeas corpus. 325 CHAPTER 55. HABEAS CORPUS. 1. Vfriis of habeas corjms ; how obtaineJ in vacation. 2. Duty of officer or otlier person to whom tiie writ is directed. 3. Dutj' of judge on return of writ. Section 6. Penalty on judge for refusing the writ. 7. On officer for not obeying it. 8. For again imprisoning a person re- leased on the writ. 9. Persons committed for capital offences i. Writs to be .applied for within two entitled to trial or discharge, when. terms after imprisonment. 10. Writ granted in civil cases. 5. Eeturned in open court, when court is 11. Subpcenas to issue for parties. Costs, in session. I how and by whom, paid. 1. If any person shall stand committed, or be detained for Writs of habeas any crime, in the vacation time, (other than persons convicted, corpus, how ' . , , , ,\ ' I . 1 1 , - obtamed m va- or in execution by legal process,) he, or any one on his behalf, cation.— R. S. may complain to any judge of the supreme or superior court; ?;.®°',*- ■'' ^^ and the judge, on view of the copy of the warrant of com- i, 2," 3| 4J 5', 6, initment, or otherwise on oath that it was denied, on request "> ^' ^o- in writing by such person, or any in his behalf, attested and subscribed by a witness, who was present at the delivery of the same, shall grant a habeas corpus, directed to the officer or other persons in whose custody the party shall be, returnable immediately before the said judge. 2. Whenever any writ of habeas corpus issued as aforesaid. Duty of officer shall be served on any officer or other person, havins: in his f "'^er person • I 1 1 1 p 1 ■ . 1 '" whom the custody the person in whose behalf such writ is issued, or be writ is directed. left at the jail or prison with any of the under officers, or~q'^"°'^^' deputies of the said officer, such officer, or his under officers or deputies, or the person having the custody as aforesaid, without delay, shall bring or cause to be brought the body of the party so committed or restrained, before the judge by whom the said writ was issued, or such other person before whom the writ is made returnable, according to the command thereof; and in case of the absence of such, before any judge of either of the said courts, together with the true cause of his commitment and detainer or imprisonment. 3. Upon such return being made, within two days after the Duty of judge, party being brought before him the judge shall discharge the ""j'',''^]^" g*^^ said prisoner from his imprisonment, as the case may require, 65, s. 3. ' either absolutely witliout bail, or taking his recognizance with one or more sureties in any sum, according to his discretion, (having regard to the circumstances of the prisoner and nature of the offence,) for his appearance at the ne.xt term of the court wherein the offence is properly cognizable, and then shall certify said writ with the return thereof, and the recogni- zance into such court, unless it be made to appear to the judge that the party is detained upon a legal process, order, or war- 28 326 HABEAS CORPUS. [Chap. 55. rant out of some court that has jurisdiction of criminal mat- ters, or by some warrant, signed with the hand of any judge of the supreme or superior court, or some justice of the peace, for such matters or ofiences for which by law the prisoner is not bailable, "^y.'", •," ■'^"P.- 4. If any person shall have wilfully neglected for the space two terms after 01 two whoie terms, after his mipnsonment, of the superior — ]">' sTTo"*' '^°"'"*' '^^ ^^^'^ county in which he may be imprisoned, to pray a 5.4." '"' "' habeas corpus for his enlargement, he shall not have a habeas corpus in vacation time in pursuance of this chapter. Eetuniedin 5. While the superior court of law for the county where Xe'n court is ^^^^ piisoucr is detained shall be in session, no person shall be in session.— R. removed from the common jail upon any habeas corpus S. c. S5, s. 5. gi-aiited in pursuance of this chapter, but upon such habeas corpus shall be brought before the judge in open court, who shall thereupon do what to justice "shall appertain ; but after the term of the said court is ended, any person detained may have his habeas corpus according to the directions of this chapter. \fd"e'L°refu= 6. If any judge of the supreme or superior court, in the va- iug^he"writ.— Cation time, upon view of the copy of a warrant of commit- I!. S. c.55,s.6. ment or detainer, or on oath made that such copy was denied, shall deny any writ of habeas corpus by this chapter required to be granted, being moved for as aforesaid, he shall forfeit to the party grieved two thousand five hundred dollars. On officer for 7. If any officer or other person to whom a writ of habeas obfy it-l!!°S. corpus shall be directed, shall neglect or refuse to make the re- c. 55,5.7. turns as aforesaid, or to bring the body of the prisoner accord- ing to the command of the writ, without delay ; or shall not, within six hours after demanded, deliver a true copy of the commitment or cause of detainer, he shall, upon conviction by indictment, forfeit for the first oflence five hundred dollars, and for the second oflence one thousand dollars, and be rendered incapable to hold his office. Fora^ainim- 8. No person who shall be set at large upon any habeas personrfieased corpus, siiall be again imprisoned for the same otFence by any on the writ.— ^ person whatsoever, other than by the legal order and process .0. 0, s. .. p£ ^[^g court wherein he shall be bound by recognizance to ap- pear, or other court having jurisdiction of the cause, under the penalty of two tiiousand five hundred dollars, to be recovered by the party aggrieved. Persons com- 9. If any person who shall be committed for treason or Uaroffencer''' felony, jilainly and specially expressed in the warrant of corn- entitled to trial mitment, upon his prayer or petition in open court to be wli'ei'.-R.®l! browglit to his trial, shall not be indicted some time in the c. 65, s. 9. next term (after such commitment) of the court having juris- diction of his offence, the judge of the court shall, upon notice in open court tiie last day of the term, set at liberty the prisoner upon bail, unless it appear upon oath that the wit- nesses for the Slate could not be produced the same term; and if such prisoner, upon liis prayer or petition as aforesaid, Chap. 56.] husband and wife. 327 sliall not be indicted and tried tlie second term, he shall be dis- cliarged from his imprisonment. 10. When any person shall be imprisoned or otherwise re- To be Kranted strained of his liberty, for any other cause than the commis- j" g^'^gg"''-" sion of a criminal offence, (unless he shall have been com- lO; b6 Geo. .3, mittcd in execution upon some legal civil process, or upon some "' ^'"'' mesne process in a civil action, on which he was liable to be arrested and imprisoned, and on which excessive and unrea- sonable bail shall not have been required,) such person shall be entitled, on application by himself or any person in his be- half, upon its appearing by affidavit that there is a reasonable ground for the complaint, to the same remedy by writ of habeas corpus, and subject to the same rules, regulations, and restrictions in every respect, as are prescribed in this chapter; and the judge to whom application is made, and the officer or other person to whom such writ may be directed, shall be sub- jected to the same penalties and punishments for refusal or neglect to discharge their several duties as are hereinbefore prescribed. 11. Any party to a writ of habeas corpus may procure the Subpa^nns to attendance of witnesses at the hearins: by subpoena, issued by 1?^"" ''"'' R^''" I I* 1 11 - - iJebtor exam- issues, it the creditor shall require it; but he shall not be ined ou oath. allowed to deny the execution of the bond except on oath in contlniTd^E writing. Provided, a/so, that if either of the parties shall be S.c. 68, s. lo. unprepared for trial, the court, as in other cases, may continue the cause. 14. If, on the trial, the jury shall find that there is any On fraud found fraud or concealment, or if the debtor shall fail or refuse to "nswOT^^debtor answer upon oath, then the debtor shall be deemed in the imprisoned.— custody of the sheriff, and shall be adjudged to be imprisoned, fo. ^' °' ^^' ^' until a full and fair disclosure of all the money, property, or effects be made by the debtor. 15. Where any debtor, upon the finding of the iury that pc'Jtoronmak- ,, • r 1 1 i 1 11 1 1 • 1 1 , . • ing disclosure there is fraud or concealment, shall be adjudged to be im- and giving no- prisoned until a full and fair disclosure be made, siich debtor, ticedischarged. upon making a full and fair disclosure in writing of all the s, li. ' ' ' money, property, or effects, and upon giving the necessary notice, shall be discharged by taking the oath prescribed in section three of this chapter. 16. The court may permit as many of the creditors notified, Any creditor as shall choose, to make themselves parties to the issues, but becmne pat-Iy. the debtor shall not be compelled to answer the suggestions of Appeal by one fraud in more than one case. And if any of the creditors, cl^5g°s^'^^'^' where there are more than one, shall be dissatisfied with the judgment of the court, he, or as many as choose, may appeal, nohvithstanding some of the creditors, parties to the issue, may decline to appeal ; and the suit shall be prosecuted fifter- wards by the appealing creditors. 17. After an issue made up, the debtor shall not be at lib- After issue, dis- erty to discharge himself, as to the creditors in that issue, byTmi'.-^'il'^'s. except by trial and verdict in the same, or a discharge by con- <=. 58, s. 21. sent. 18. The court shall not permit an issue of fraud to be made Particulars of up and tried under the provisions of this chapter, unless the ed^hi'^wltfu^ creditor, his agent, or attorney, shall file a suggestion in writ- on oath.— IS44' ing, specifying therein the particulars of such fraud or conceal- "' ^^' *• ^' ment, and shall annex to the said suggestion his affidavit that he verily believes the truth of the matters therein stated. 19. No capias ad satisfaciendum shall issue, unless the plain- pf- sn. not to tiff, his agent, or attorney, shall make affidavit in writing be- affijl,"!'.!!?"'' fore the clerk of the court in which such judgment may be, or ifcii, c. 31, s. 1. before the justice of Ihe peace to whom application is made for such ])rocess, that he believes the defendant has not prop- erty sufficient to satisfy such judgment, which can be reached by a fieri facias, and has property, money, or effects, which cannot be reached hy fieri facias ; or has fraudulently con- cealed his property, money or effects; oris about to remove from the State, v^nd where the judgment shall be against two "■'>' 's^'^'^ 29 338 INSOLVENT DEBTORS. [ChAP. 59. sem-^' defend' "'" "^°'"'^' ^^'^""o'' ^o™^ of them may be solvent, the plahitifT aiits! ^ ^° ' may issue such capias against any of the defendants, of whom and whose property he may make said affidavit. tOTre"'=ideT'^'" 20. When the person to be notified shall reside out of the abroad, who, State, the notice may be served on his attorney or agent, or fi'ed-irs°c'' *^^ constable who has charge of the claim ; and if there be )io 58, s. 13." ' "' known agent or attorney who resides in the county, notifica- tion made in any newspaper in the State, by two publica- tions, shall be sufficient. Property in 21. All the estate, right, and interest of any person who ed'fn^herS'ofmay file a schedule, and all the right, interest, and estate, county where wdiich he may lawfully depart with, contained in such schedule, shall be vested in the sheriif of the county where the schedule may be filed, except such of the estate in the said Sheriff's dut' ^^^^^'^'''^ Contained, as may be exempt from sale under execu- as to'the same, tion ; and such sheriff shall sell at public auction, and convey R S. c. 58, s. the said estate, right, and interest to him who will give the best price for the same ; and the proceeds thereof, and all debts and demands contained in said schedule, (which the sheriff may collect in his own name,) shall be paid by the sheriff, upon oath, into the ofRce of the court of pleas ancl quarter-ses- sions of his county, to be distributed as hereinafter provided. ap^whltedto"" 22. The court where any schedule may be filed, shall ap- divide debtor's point two Commissioners, who shall examine into the claims e. M.^sfis." ' of all the creditors of the person rendering such schedule, as well of those at whose suit he was arrested as of all others ; and the commissioners, by advertisement at the court house, and in some newspaper if they deem it necessary, shall make known the time at which they propose to examine such claims, which shall be within sixty days after their appointment ; and upon such creditors, their executors or administrators, agents or attorneys, appearing and satisfying them of the justice of their claims, they shall proceed to make distribution amongst the creditors so appearing, in proportion to their respective de- mands ; and the clerk of the court shall pay the moneys re- ceived from such insolvent's estate, to the commissioners for the purposes aforesaid. surrtndorYis 23. The surety in a bond, conditioned for the appearance principal.— E. of any person at court and for his taking the oatii of insol- .0.5 ,3.9. vg,^py^ ,^-,^y surrender the principal in discharge of himself in open court of the county where he is bound to appear, or to the sheriff or other ofl[icer of such county, and such surety shall have all the power which special bail have over their ])rini-ipal. Jl^'imt','Tftcr 24. In all cases of the discharge of an insolvent debtor, acqnire'dcs- under any of the provisions of this chapter, execution may 5S,"sri6.' ^' "■ ^^^"° against any estate afterwards acquired by him. Debtor swear- 25. If any person shall falsely and corruptly take any of tlie plfved of'Ilif" oaths prescribed in this chapter for tlie relief of insolvent relief.— R. s. c. debtors, and upon indictment of perjury shall be convicted 68, s. 17. tlicreof, he shall suffer all tlie pains of wilful perjury, and never after have any of the benefits of this chapter, but may be sued Chap. 60.] INSPECTIONS. 339 and imprisoned, as though he had never taken the oath of in- solvency. 26. No female shall be arrested or imprisoned for debt. 27. Any debtor who may be in prison on account of debt, whether under mesne process or otherwise, may take the bene- fit of the prison bounds by giving security as required by law, and shall not be compelled to go into close prison in order to avail himself of this chapter. Provided, hotvever, that no debtor, ~Sgainst whom an issue is found, or who, for other cause, is adjudged to be imprisoned untU he make a full and fair disclosure of his property, shall be entitled to the benefit of the prison bounds, but he shall remain in close prison, until discharged by being permitted to take the oath of insolvency. 28. Nothing in this chapter contained shall extend to free negroes, who may be committed for fine and costs in criminal prosecutions, or upon any judgment in a case of bastardy. Sect. 5. WJien creditor liable for jail fees, 13 Ire. 235, 10 lb. <17. Prisoti bounds, 13 Ire. 10. Sect. 6. Bond: form and effect of, U Ire. 613, 3 Ire. 42, 3 D. & B. 9, 2 Dev. 12, lb. 254, 3 Dev. 95, 1 D. & B. 113. Who may give, 2 D. & B. 356 ; for debt oidy, 2 D. & B. 490; defence, 12 Ire. 136; by surety, 1 Ire. 106. Sect. 7. Returned, when, 5 Ire. 149. Surrender of prkoncr by surety, 2 Dev. 254, 8 L-e. 201. Sect. 8. Deblcr may waive, 9 Ire. 331. Sect. 9. Schedule, 11 Ire. 609, 1 lb. 501. May assign property after arrest, 3 Ire. Eq. 568. Sect. 11. Notice, after continuance, 2 Ii'e. 17. Sect. 12. Exceptions too late after issue, 8 Ii-e. 211, 9 lb. 28, 3 lb. 42 ; joinder of issues,. 5 Ire. 649. Sect. 13. Effect of verdict of fraud, 6 Ire. 285, 1 Dev. 233. Commitlitur in execution, 6 Ire. 119. Sect. 17. Form of affidavit, 8 Ire. 517. Sect. 19. 4 D. & B. 461. Female debtor not to be im- prisoned. — R. S. c. 58, s. 18. Debtor in bounds may tal^e tlie oath. — R. S.c. 58,s. 19. Free negroes, in bastardy ca- ses, &c., not discliargeil as insolvents. — 1838,0.23; 1840, c. 29. CHAPTER 60. INSPECTIONS. Section , 1. Former places of landing and inspec- tion continued; county courts may appoint others. 2. Inspectors appointed by county courts. Proviso as to inspectors in Craven county. 3. To give bonds. Benew.able yearly. 4. To attend at times and places ap- pointed. 5. E.Kporting merchant not to be inspec- tor; penalty. 0. Not to be more than six inspectors in any town, except Wilmington. 7. Not to have deputies. Proviso for flour inspectors. Section 8. To hold office during good conduct. How removed. Two general inspec- tors for Wilmington appoii;ted by commissioners. 9. Vacancies, how filled when between terms of court. Assistants in certain cases. 10. Principal liable for acts of. 11. Inspectors of tobacco, duty of. 12. To give a manifest of e.ach hogshead. 13. Condemned tobacco may be rein- spected after six months. 14. None to be exported uninspected. 15. Penalty for falsely braudiug hogs- head. 540 INSPECTIONS. [Chap. 60. Section 16. Forgery of stamp, note, S:c., of tobacco inspector. 17. Manner of proceeding wlien a note is lost. 18. Proceejings by one demanding bis tobacco, injured since inspection. 19. Turners up and coopers appointed. 20. Inspectors to report to court the mis- beliavior of turners up. Owners may turn up, &c., their tobacco. 21. Piclters of tobacco appointed. 22. No inspector to buy tobacco. 23. Warcliouses may be built or rented. 24. When warehouse is burned, Inspector not liable, &o. 25. Warehouse rent regulated, &c. 26. Warehouses, how repaired, &c. 27. Rules of private warehouses, as to reut, &c. 28. Inspectors of tobacco for FayetteviUe. 29. To designate qualities, &c. 30. To take for inspection lugs from each break. 31. Inspector of flour not to trade in it. 32. Degrees of flour. 33. Barrel of, to weigh 196 pounds, net. What flour to pass inspection. 34. Penalty on miUer, manufacturer, or seller, violating foregoing provisions. 35. Inspectors may, in certain cases, un- pack flour. 36. Seller of barrels deficient in quantity, liable, &c. 37. Casks of flour, how inspected. 38. Owner dissatisfied, how to obtain a reiixamination. 39. Penalty for exporting flour, not passed by inspector. 40. On shipper receiving uninspected flour. Proviso. 41. Flour not liable to be reinspected, in sixty days. 42. Cask not condemned in certain cases, if it contain 196 pounds. 43. Penalty for packing flour in a branded cask. 44. For altering inspector's brand, &o. 45. On inspectors, neglecting duty. 46. Flour may bo sold in FayetteviUe without inspection. 47. " Ban-el" or " cask of flour" to include half barrel. 48. Inspectors of beef, &c., duty of; pen- alty for misconduct. 49. Beef and pork inspected, how. 50. Hog's lard inspected. Section 51. Rice, how inspected. 62. Fish, how inspected. 53. Barrels of turpentine and tar, weight of; of pitch, &c., size of, &c. Water not a fraudulent mixture in tar. Allowance, where barrels weigh more or less than standard quantity. 54. Turpentine barrels to be branded. Penalty on inspector failing. 55. llakers of tar, pitch, turpentine, to brand with initials of their names. Inspector to keep a book and enter maker's name, &c. 56. Beef, cfcc, reinspected, if not ex- ported in sixty days. Tar, pitch, or turpentine in twenty days. 57. No cooper to make barrels for sale but as directed in tins chapter. 58. Seller or exporter of beef, &c., to produce inspector's certiflcate, &c. Penalty. 59. Penalty on masters receiving them uninspected. 60. Proviso as to Newbern. 61. Shingles, of what size. 62. Lumber, how inspected. 63. Inspectors of saw-mill lumber, near Wilmington, appointed. 64. Lumber and ton timber, how in- spected on Cape Fear river. Penalty for inspecting lumber bj' other rules. 65. Steam mill lumber, how inspected. 66. Saw-mill lumber and ton timber, how measured. 67. Shingles, boards, &c., to be culled. 68. No inspector to purchase cuUings, &c. 69. Penalty and misdemeanor, for falsely acting as legal inspector. 70. Fines, &c., under this chapter, how applied. 71. Disputes about extra cooperage, &c., in Wilmington, how determined. 72. Sale of firewood in towns, to be by cord. 73. Inspectors of wood for Newbern. ♦ 74. Of provisions and forage, appointed by any county. 75. Duty of such inspectors. 76. Shall give bond. Fees. 77. Penalty (or selling forage or provisions without inspection. 78. Inspector of forage, &c., may ap- point deputy. 79. Fees, by whom paid. Penalty for taking greater fees than allowed. Former places J. ^.11 sucli places, as have been ostabli.shed by law, or by oflandnigand ,, , -' ' .... •',.,r inspection con- the Order ot any county court within its county as pubhc land- Chap. CO.] inspections. 341 ino-s, or as places of inspection, shall be and remain public tinued; county , ° ,'. ', , r ■ ^ 1- 1 J.L i. i courts may .ip- landmgs and places of inspection ; and the county courts may poi,,t others.— appoint such public landings and places of inspection, within K- .s. c. 59,f. i. their respective counties, as they may think necessary and convenient : and on any petition for a public landing, the court may order the costs to be paid by the petitioner or by the county. 2. The several county courts, except when herein otherwise Inspectors ap- ,. . . , "^ • i. r xl T pointed bv directed, may appoint one or more inspectors lor the place or county courts. places of inspection, who shall inspect such articles, as by law — K- S. c. 59, are required to be inspected, which may be brought to his place ^' of inspection for that purpose ; which inspectors shall reside in the county where appointed, and take the oaths required by law. Provided, however, that inspectors of turpentine and J^°^ll^^^ll° naval stores in the county of Craven, for the places of inspec- Craven county. tion provided by the court of pleas and quarter-sessions, shall '^^^^^' ^ ^^'^- be elected by the citizens of the county qualified to vote for members of the house of commons, at the time of the election of members of Congress, in the year one thousand eight hun- dred and fifty-five, and at the same time every two years there- after ; and the polls shall be opened and held under the same rules and regulations as polls for members of the General As- sembly ; and the sheriff, or other officer, qualified to hold such elections, shall, at the court house, declare the persons, having the highest number of votes, duly elected inspectors as afore- said, who shall continue in office for two years next after their qualification, and until their successors shall be elected and qualified ; and if two persons shall have an equal number of votes, the sheriff shall make the election as provided for mem- bers of the General Assembly. If a vacancy shall occur by death or otherwise, the court of pleas and quarter-sessions (seven justices being present) may appoint some suitable per- son to fill the unexpired term. 3. Every inspector shall, in the county court of his county. To give bonds, give bond with two sufficient sureties, in the penalty of one thousand dollars, for the faithful discharge of the duties of his office, payable to the State of North Carolina, and renewed ^^^^^^^p s_ annually as in the case of clerks of courts. c. 59," s. 3. 4. The several inspectors shall attend, at the times and ^o^^^"™^ "t^ places by law established and directed, to inspect, according to places appoint- the nature of their several appointments, all such tobacco, beef, ^g""^" ^' *^' pork, rice, tar, pitch, turpentine, fish, flour, butter, flaxseed, sawed lumber, ton timber, and shingles, as shall be exposed to sale for exportation within their respective counties. 5. No merchant, who shall be concerned in the trade and ^^P^j^''"? purchase of produce for exportation requned to be inspected, to be inspector, shall be appointed inspector. And if any person, receiving — ^- S- ^'- ^^> such appointment, shall be concerned as a merchant in the penalty, exportation of such produce, he shall forfeit the sum of sixty dollars, and be removed from office by the county court, on 29* 342 INSPECTIONS. [Chap. 60. Not to be more than six in- spectors in any town.— R. S. c. 59, s. 6. Except Wil- mington. — 1852, c. 134, s. 2. Not to Iiave deputies. Proviso for flour inspec- tors.— R. S. c. 89, s. 7. To hold office during good conduct. Two general inspectors for Wilmington appointed by commissioners. —1854, c. Vacancies, how filled be- tween terms of court. Assistants in certain cases. — E. S. c. 69, s. 9. Principal liable motion made by the solicitor of the county, on producing the record of the recovery of the said penalty. 6. The county court shall not appoint in any of the towns more than six inspectors, except for the purpose of inspecting timber ; in which case the court may appoint sucli number as they may consider necessary. Provided, lioiccccr, that the county court of New-Hanover may appoint eight or more inspectors of naval stores for the town of Wilmington. 7. No inspector shall appoint a deputy, (except wlien herein otherwise directed,) under the penalty of two hundred dollars. Provided, that if the quantity of flour, brought to any place of inspection, should at any time be so great that the inspector cannot examine the same with sufficient despatch, or if, by reason of sickness, he should be incapable of discharging the duties of his office, he may appoint one or more persons, of good repute and skilled in the quality of flour, to assist him in the execution of his office ; who after having taken tiie oaths prescribed by law for the inspectors of flour, shall be authorized to inspect and brand flour in the same manner as the inspector. Provided, that the inspector shall be liable for all misconduct in office, of his deputies. 8. All inspectors shall hold their offices during good behavior, unless otherwise directed. « Inspectors of naval stores and lum- ber for the town of Wilmington shall be appointed by the county court of New-Hanover, every tw^o years, at the first court held after the first day of March ; and where any inspector shall be guilty of neglect, malpractice, or misbehavior in office, on complaint made to the county court, they shall summon him to ap)5ear before them at the ensuing term ; and, if he is found guilty by the verdict of a jury, they shall remove him from office, and appoint another in his stead. Two inspectors, whose duties shall be to inspect flour, provisions, and forage for the town of Wilmington, shall be appointed by the com- missioners of the town of Wilmington, said commissioners having the right to specify the articles to be inspected, the mode of inspection, and the, fees to be paid for the same, and the length of time that said inspectors shall hold their office; and if any such inspector shall be guilty of neglect, malprac- tice, or misbehavior in office, said commissioners shall have power to remove him from office, and appoint another in his stead. 9. Whenever there shall be a vacancy in the office of in- spector, while the county court is not in session, any three justices may appoint some other fit person, until tiie next suc- ceeding court; or if any inspector shall be rendered incapable of performing his duty by sickness, or other accident, he may, with the consent of three justices, appoint some other person as assistant during his sickness, or other disability; which consent shall be certified under their hands, and lodged with the clerk of the court. 10. Such assistant shall take the same oaths as inspectors ; Chap. 60.] inspections. 343 and the inspector shall be liable to the same fines and penalties *'"'■ "'''^ °^-— for the assistant's misbehavior, as for his own. ' ' °-^^'^-^- 11. Inspectors of tobacco shall examine well and carefully, Inspectors of by breaking in at one or more places, every hogshead, cask, or of.— "e"! c^m parcel of tobacco, brought to their respective warehouses for ^- ^i- inspection ; and such tobacco as they shall find good, sound, and merchantable, and fit for exportation, they shall cause to be immediately headed and hooped, and the number, net weight, and tare, with the name of the warehouse, stamped or marked thereon ; and for all tobacco, passed by them in crop hogsheads, they shall give to the owner a receipt, or note, con- taining the warehouse, number, gross, tare, and net weight, and the kind of tobacco, and therein oblige themselves to de- liver such tobacco to the owner, or his order, when demanded : and for all such tobacco as they shall pass in parcels, they shall give the owner a transfer note; and all such parcels they shall immediately pack and prize into hogsheads, of at least one thousand net weight, to be by them paid in discharge of such transfer notes to the persons who shall be possessed of them, deducting therefrom, when returned to them, at the rate of two per cent, for the first month, and one per cent, for every month after one, for shrinkage ; and may also charge, out of such notes, thirty pounds of tobacco for the cask ; and where tobacco is offered for inspection, and it appears that part there- of only is fit to pass, the owner may separate the good tobacco from the bad ; and where the inspectors at any warehouse shall disagree in their opinion of the quality of any hogshead of tobacco, or where the tobacco is the property of one of the inspectors, then another sworn inspector from the nearest ware- house, or a justice of the peace, shall be called and decide, and receive or reject the same. 12. Where any tobacco shall be delivered out of a ware- Togivcamani- house, the inspectors shall give a separate manifest of each [®'_^'?*'<'=l'''^ hogshead delivered, in which shall be inserted the marks, num- s. c. 69, s7i2.' ber, and weight. 13. The proprietor of condemned tobacco shall have the Condemned to- privilcge of letting it remain in the warehouse six months after ''"''TI^'^l inspection, and shall be entitled to have the same reinspected, — R. s.'c. 59, ' if he think proper. ^- ^^■ 14. No tobacco shall be exported out of the State, until the None csiiorted same has been carried to some place of inspection, and there T>"'c^''®J'i^'''77 1 1 1 1 T 11- 1^. o. c. oy, S. 14. viewed, passed, and stamped accordmg to the directions of this chapter. 15. If any person shall brand, or cause to be branded, any Penalty for hogshead of tobacco, which the inspectors have not examined falsely brand- 1 u J 1 -ii • i ■ 7 1 T I- , 1 , 11 ni *• 23- I 346 INSPECTIONS. [Chap. 60. W:irehouso 25. The justices in each county shall, from time to time, ^^c— R°s''c*'"^' regulate what shall be paid as warehouse rent for each hogs- B9%. 24. ' ' head of tobacco ; and shall appoint some tit person to receive the moneys, who shall be accountable to them at all times for the appropriation of the same, by action of debt; and the inspector's books shall be proof as to the number of hogsheads received. Warehouses, 26. The justices shall, as occasion may require, appropriate I'^S o^w'T-'asi any of the remaining part of the aforesaid moneys in repairing or rebuilding their warehouses. Rules of pri- 27. The rules and regulations aforesaid shall obtain with housel-R. S. respect to warehouses built by persons on their own lands, c. 59,s'.26.' ' and at which a public inspection has been established, as to the warehouse rent for each hogshead of tobacco. Inspectors of 28. The county court of Cumberland,' at the first court after Fa'^etteviiie — ^'^^ ^^^^ ^^^ °^ February one thousand eight hundred and fifty- 1842; c^ri.t 1. five and every two years thereafter, shall appoint one or more inspectors of tobacco ; and no person shall inspect tobacco in the town of Fayetteville unless so appointed. To designate 29. Such inspectors shall designate four qualities of to- ^i™i''jf^^j^^-7 bacco, to be known as follows: — first, second, and third ''^ '' ' qualities, and refused or unmerchantable; and they shall mark it according to the quality, and give notes, designating tlie same. To take for 3o_ T^g inspectors in Fayetteville shall take from each from each "^ break not less than four nor more than six hands, or lugs of cTi'^'b""*^" tobacco, and deliver one half to the owner or consignee, and ' ^' ■ retain the other half, marked according to the quality, and keep the same for the inspection of any person wlu) may wish to examine it, until the tobacco is shipped or sold. Inspector of 31. No inspector of flour or his deputies shall, directly or tadeTuiour. indirectly, trade in flour, bread, or other articles made of flour, — R. S. C.59, under the penalty of two hundred dollars ; and every inspector ^' ^'' so offending and thereof convicted, shall be disabled from act- ing in his oflice ; and no inspector of flour shall, directly or indirectly, purchase any flour by him condemned; nor any other flour, than for his own use, under the penalty of seven dollars for every barrel by him purchased. Degrees of 32. The several degrees of fiour shall be distinguished as to^l'^s- imt, follows, namely, family, superfine, fine, and cross middling ; c.'ia's.s.'i. ' and inspectors of flour shall conform their inspection, as near as may be, to the inspection observed and in use in the adja- cent States. Barrel of flour 33. Each barrel of flour, exposed to sale in or exported JToundfnir from the State, by land or water, shall contain one hundred and ninety-six pounds; and each half barrel, ninety-eight pounds of net flour, well ground, bolted, and packed, mer- chantable and of due fineness, without any mixture of coarse flour, or flour of any other grain than wheat; and every barrel shall be made of good seasoned wood, tightened with ten hoops, sufficiently nailed with flour nails in each chine-hoop. Chap. 60.] inspections. 347 and three nails in each upper bilge hoop ; and the dimensions shall be as follows, namely, the stave shall be twenty-seven inches in length, and the head seventeen and one half inches in diameter; and the half barrel shall be of the following di- mensions, namely, the staves twenty-three inches in length, and the head twelve and one half inches in diameter: and every miller or manufacturer of flour for sale or exportation What flour to shall provide and keep a distinguishing mark or brand, con- {ion— r"^s"c taining the initials of his Christian name, and his surname at59, s. 29. length, with which he shall brand every cask of flour, and mark thereon the net and tare weight, before the same shall be removed from the place where it was bolted; and every miller or manufacturer shall receive the sum of ten cents for bolting, packing, and nailing every barrel of flour bolted, and that only. 34. Every miller or manufacturer of flour, not complying JnXr'"V"nu- with the provisions of the preceding section, shall pay two factnrei- or sel- doUars for every cask of flour not hooped, marked, branded, fo,4Jo|'nll'p"|. and nailed as aforesaid, to be recovered from the miller, or visions.— K. S. from the person who shall bring such flour to any of the places "■ ^^' ^- ^"^ aforesaid for sale ; and incase said penalty should be recovered from the person bringing such flour for sale, he may recover the same from the miller or bolter from whom he purchased or received the same. Provided, that he gave notice to the miller or bolter that he intended to carry the same to one of the places aforesaid for sale or exportation, and that he requested said miller or bolter to secure and brand the barrels. And every miller or manufacturer, putting into any cask a less quantity than herein directed, shall forfeit and pay for the de- ficiency of each pound the sura of ten cents. 35. The inspector, upon his suspicion, or at the request of ^^^^'^^Jj°^g^fj,;j, the purchaser, shall unpack any cask of flour ; and if there cases unpack shall be a less quantity than above directed, the miller, bolter, g°59'"^3\'. ' or seller shall pay the charges of unpacking and repacking, besides the penalties aforesaid ; but otherwise, they shall be paid by the inspector, or by the purchaser, if the trial be made at his request. 36. When any person shall sell a barrel of flour, not con- Se'ior of bar- taining the full quantity, the purchaser, unless there shall be quantity, iia- a special contract to the contrary, shall be allowed to recover ''''=i ^^,n~q^ the value of the deficiency in an action on the case for money ' " ' " " had and received. 37. Every inspector shall inspect and try each cask brought P"*'^? °*^ """'"i to him to be inspected, by boring through the cask from one— r. s. c. su, head, with an instrument not exceeding half an inch in di- ^- ^|.-~\''^-' ameter and equal in length with a barrel of flour, to be by him ' ' "" provided for the purpose ; and if he shall judge that the same is well packed and merchantable, he shall plug up the hole and brand the cask in the quarter, with the name of the place in which he is inspector, with a public brand to be by him provided ; and shall also brand and mark the degree of fine- 348 INSPECTIONS. [Chap. 60. iiess which he shall determine the same to be of; for which trouble the inspector shall receive from the owner five cents for every barrel : and no inspector shall pass any flour which shall be unmerchantable, but shall cause the same to be marked on the bilge, "condemned;" or secure it for further examination, if required : and the inspector may receive from the owner the same fees as if it had been passed ; and every inspector shall, if required, give the owner of the Hour in- spected and branded, a certificate of the same, and shall keep a record or book of inspection of all flour inspected and branded as aforesaid, setting forth the owner of the flour and miller's name, with the quality of each cask. Owner Jissatis- 3g, Whenever any person may think himself aggrieved by taia'a rei-xain- the decision of any inspector of flour, the owner or his agent ination. — R. may secure it for further examination, which shall be made " ' ' ' ' within sixty days by applying to a justice, who shall issue a warrant directed to three indifferent persons, well skilled in the manufacture of flour, one of whom shall be named by the owner of the flour, one by the inspector, and the third by the magistrate ; which persons, having first taken the oath directed for inspectors, shall carefully examine the flour; and if they, or any two of them, shall differ from the inspector as to the quality, the inspector shall brand and mark the same accord- ing to their judgment, and he moreover shall pay all costs at- tending the examination ; but if they shall be of opinion that the judgment of the inspector is correct, the owner shall pay costs. ^^™"jfl°"^ f^- 39. No person shall export, or lade on board of any ship or not pafsed'by vessel for exportation out of the State, any barrel of flour inspector. — R. marked " condemned " by an inspector, or any barrel of flour ■ ' ' ' ' not inspected or branded as aforesaid, on pain of forfeiting ten dollars for every barrel of flour exported, or put on board of any ship or vessel for exportation. On shipper re- 40. If any master, owner, or commander of a ship, vessel, spectednour. boat, or craft shall receive any barrel of flour on board for ex- portation or transportation from one town or port, being a place of inspection, to another, which is not inspected and branded as herein directed, he shall forfeit and pay live dollars for every Proviso. — R. barrel so received. Provided, that the provisions of this sec- — 1844 'c. 49 ^'"^'^ shall not extend to the transportation of flour from Fay- s. 3. ' ctteville to Wilmington. Flournot liable 41. A^^y cask of flour, which has been inspected and branded InGOdays!— k! ^t any one place of inspection in the State, shall not be sub- S. c. 59, s. 37. ject to reexamination and inspection in another, unless, after such inspection, it shall have remained for sixty clays before it is exported ; and the certificate of the inspector shall be conclu- sive evidence of the time when the Hour was inspected. Cask not con- 42. No inspector of Hour shall condemn any flour cask for tain" cases" i'i''^'^" ""^ being precisely of the dimensions required by this chapter: it contain loo Provided, such cask shall come within one half inch of the S?c"oy"l3s. length of the stave, and one half inch in the diameter of tiie CriAP. 60.] INSPECTIONS. .349 liond, of the measurement required, and sliall contain one hun- dred and ninety-six pounds of flour. 43. If any person shall pack for sale Hour or meal of any PcnnUy for kind whatever in a casic, which has been inspected find f,"^^ ,'',',i:,*,i','.j'" branded with the name of a miller, he shall forfeit and pay c:isk. — i!. s. twenty dollars for every barrel, one half to the informer, the other "' ^^' '^^ ^^' half to the miller, and be further liable to the action of the party aggrieved. 44. If any person shall alter tlie mark branded on any cask For altering in- of flour by an insp^tor ; or shall marlc or brand any cask of bra|;j''&c. _ k. flour which has not been inspected, with any mark or brand S- '^- ^'J, s. 40. similar to, or in imitation of any inspector's mark or brand ; or after an inspector shall have passed any cask of flour as merchantable, shall pack into said cask any other flour ; or after any cask of flour shall be branded " condemned" shall unpack and repack the same in other casks for exportation ; he shall forfeit and pay seven dollars for every cask, and be deemed to be guilty of a misdemeanor. 45. Every inspector of flour, failing to perform the duties On inspectors herein mentioned, shall forfeit and pay ten dollars for every ty.°-lV.°i. c' offence. 59, s. 4i. 46. Any person may sell flour in the town of Fayetteville, Uninspected either in casks or otherwise, without submitting the same to Fayetteville.— inspection. E.s.c.59,s.42. 47. Wherever the term barrel or cask of flour may be used "^"r'^lfl"'" „ in this chapter, it shall be construed to include a half-barrel, to include balt- unless the same be repugnant to the enactment. barrel. ■ 48. Every inspector of beef, pork, rice, ilaxseed, fish, tar. Inspectors of pitch, and turpentine, shall constantly attend at the places for offpe,'"^,'j'[ie'l'fOT which he shall be appointed, and shall provide an iron to brand misconduct.— any of the said commodities, bearing the name of the inspec- ^^s. c. 59, s. tor and his place of residence, and shall find laborers equally with the owners to assist in weighing the several commodities he shall inspect and weigh ; and also shall find and provide proper steelyards or scales of the lawful standard ; and if any inspector shall neglect his duty, or brand or stamp any of the commodities contrary to this chapter, or brand any empty bar- rels, or lend his brand to any person, he shall forfeit and pay for every such offence, twenty dollars ; and for branding any empty barrel, or lending his brand, two hundred dollars ; and every other person that shall brand, or procure to be branded, any cask or barrel, otherwise than by the inspector or by his as- sistant, shall forfeit and pay for every offence the same fines and penalties as inspectors are by this section liable to pay for similar breaches of duty or misbehavior. 49. All beef or pork, packed for sale or exportation, shall ?'"'7fctea ^hot- be put in good and sufficient new, white oak, turkey or water —u. s. c.'59, s. oak casks, which shall not contain, each barrel, more than ^*- twenty-eight gallons, wine measvu'e, and fifteen gallons, each half-barrel ; and such cask shall be made of timber, seasoned at least six months after the riving, the staves not less than 30 350 INSPECTIONS. [Chap. GO. half an inch thick when wrought, the head not less than three quarters of an inch thick, and well dowcUed, tAvelve good sub- stantial hoops on each cask, and the whole to be tight, lit to hold pickle, and made in a workmanlike manner ; and each barrel shall contain at least two hundred pounds of good, • sound, and clean merchantable meat, well salted and cured, with at least half a bushel of salt to each barrel, and nailed and packed, with no more than two heads, and without any boar's tlesh, in any barrel of pork, and without any heads or bull's flesh, or more than two shins in any barrel of beef ; and each half-barrel shall contain one hundred pounds of salted meat, and if beef, not more than one shin, and if pork, not more than one head. ^°ected!-E?s. °0- ^^^ ^^^S'^ l^''*^' exported in casks, shall be inspected re- c. 59, s. 45. specting the quality thereof, for which the inspectors shall be entitled to fees, similar to those allowed for pork, respect be- ing had to the size of the cask ; and hog's fat or lard shall not be exported unless in cypress, white oak, or juniper casks, and inspected, under the penalties inflicted for exporting unin- spected pork. Eice.how in- g]^_ Everv cask of rice, intended for sale or exportation, shall spected. — K. S. „.■; I'ni i- ir i c. 59, s. 46. be nlled with sound and well cleaned rice ; and alter the same has been inspected and found good and merchantable, it shall be branded as aforesaid, and a certificate thereof given to the owner, bearing date, in words at length, the same day such commodity was inspected and passed. f'Ste^"— r's ^^' ^^^ ^®^' exported from the State, shall be packed in c. 59, S.4-. good and sufficient barrels, and shall be inspected by an in- spector of the county where the same may be saved, at the time of shipping the same ; each barrel shah be at least twenty- nine inches in length, and the head at least seventeen inches in diameter, and shall contain thirty gallons, be made in a workmanlike manner, and be full of good sound fish, with a sufficient quantity of salt ; and when the barrels of fish shall be of this description, they shall be deemed merchantable on the inspector's marking, brandiiig, ikc. ; otherwise, it shall not be lawful to export any fish in barrels from the State. And if any person shall sell or ofler to sell, within the State, any fish in barrels less than the size aforesaid, he shall forfeit and |)ay two dollars for each barrel, to the use of the prosecutor. Barrels of tur- 53^ Everv baiTcl of soft turpentine or tar shall be of the pentme and tar . .< . ' of what weight, Weight 01 two hundred and eighty pounds gross; every barrel and of pitch, ^f \is,xA turpentine of the weisfht of two hundred and forty &c.,ofwhat I 1 i-^ -1 1 1 n . ■ ,\ ■ i . size, &c. pounds gross; every barrel oi pitch shall contain thu'ty-two gallons; and every barrel of turpentine, tar, or pitch shall be free of any fraudulent mixture, and put in good and sufficient casks made of good seasoned staves, three quarters of an inch thick, and not exceeding five inches wide, and not less tlian thirty nor more ihan Ihirty-two inches long, and heads not less than one nor more than one inch and a half thick, and secured with twelve good hoops, except hard turpentine, which Chap. 60.] inspections. 351 shall be secured with ten good hoops, and the joint of the head shall be placed perpendicularly to the bung; and if turpen- tine, tar, or pitch shall be fraudulently mixed, the same shall be condemned by the inspector, and delivered to the owner on demand. And forasmuch as it is difficult in warm and rainy weather, to separate tar from water, it is hereby declared, that ^^,^^^^ _^_^ ^ water shall not be accounted a fraudulent mixture in tar ; but in fraudulent such case the barrel shall not be branded by the inspector until mixture in tar. the same is as free from water as it can be made. And foras- much as it is difficult for the makers of turpentrne and tar so to regulate the size of their barrels that every barrel shall weigh j^-^^^^,^^^^ the number of pounds required by this section, it is provided, where' barrels that the inspector shall make out two fair bills of thesame, j^^sh^^je^-^^^ the one for the seller and the other for the buyer, in which he ard quantity.— shall designate the quantity and quality of the same, making fg .^fg/e^'; a proportional allowance to the seller, when the barrel shall 57^ s. i; ms, weigh more than the standard number of pounds established «2_^*' ^^°'*'*'' by this section, and the same allowance to the buyer, when the barrel shall weigh less. 54. Every barrel of turpentine, after the same shall be in- Turpentine spected, weighed, found clean, and in merchantable order, shall Jj;^™,g,/_° ''•' be branded or marked by the inspector ; the soft with the letter Penalty on in- S., and the hard with the letter H. And if any inspector shall !^K.Tf"53"f: inspect any turpentine or tar, contrary to the directions of this 49.— 1844, c. chapter, or shall give any bill contrary to the same, he shall f^ i^*^' <=• "• forfeit and pay fifty dollars for each offence. 55. Every maker of tar, pitch, or turpentine shall mark or Jiakers of tar, brand each barrel with the initial letters of his name, and in Pii^f^Sd" case of his failure, the inspector is required to mark the same, with initials of for which he shall receive one half cent per barrel ; which fee ^'p^^t'lJJ^to' shall be paid by the person paying thfe fees of inspection, and keep a book, by him may be charged to the maker: and every inspector ^;^^ «^'Jf^;;^|^; shall keep a book, in which shall be fairly entered the maker's — R. S.c. 59,3. name, and the mark of every barrel of beef, pork, rice, tar, ^jj"^ 2. ' °" pitch, turpentine, flour, fish, and butter, and the number of barrels inspected of the same mark, the merchant, or shipper's name causing the same to be inspected, and the time of in- spection ; and shall give a certificate of any parcel to any per- son requiring the same, on payment of ten cents. 56. No beef, pork, rice, fish, flour, or butter shall be shipped Beef, &c^, re- on board of any ship or vessel, for exportation, after the ex- "o'i^l^porte j ;„ piration of sixty days from the time the same was inspected ; ^']^j'^>'^-^,^ ^_. nor any tar, pitch, or turpentine, after the expiration of twenty tu'l^en'ti'iie in" days, until the same shall have been again inspected, and cer- 21) g'^'j^, 5i tificates granted in the same manner as if such commodities " '"' '^' had never been inspected; and every person offending herein shall pay twenty dollars for each barrel or cask ; and the master or commander of such ship or vessel shall be liable to the same penalty, as for taking on board any of the said com- modities without being branded. 57. No cooper, or any person making casks, shall expose No cooper to 352 make bairels foi- sale, but as directed by this chapter.— K. S. c. 59, s. 52. Seller or ex- porter of beef, &c., to produce inspector's ccr- tificafe, &c. — E.S.c. 59,8.53. Penalty. Penalty on masters receiv- ing them unin- spected. — R. S. c. 59, s. 54. Proviso as to Newbem. — 1842, c. 39. Shingles of ■what size. — R, S. c. 59, s. 65. Lumber how inspected. — R. S. c. 59, s. 56. Inspectors of saw-mill lum- ber near Wil- mington ap- pointed. — 183S, c. 30, s. 1,2. INSPECTIONS. [Chap. 60. for sale any barrel or half-ban-el for tlie holding of pork or beef, other than such a.s are by this chapter directed to be made for this use, under the penalty of two dollars ; and every such person, before lie exposes the same for sale, shall set his proper brand upon them, which brand shall be recorded in the olfice of the county court where he shall reside, under the pen- alty of twenty dollars for every neglect. 58. Every seller or exporter of beef or other commodity directed to be inspected, shall produce the certificate of the in- spector who inspected the same, and make oath, if required, before a justice of the peace, on the delivery of the goods sold or exported, that the several commodities by him to be sold or exported, are the same that were inspected and passed, and do contain the full quantity mentioned in such certificate, with- out embezzlement, to his knowledge ; which oath the justice shall certify on the back of the certificate, which certificate the seller shall deliver to the buyer of such commodities ; and the person exporting them shall deliver the certificate to the master of the ship or vessel on board which the same shall be shipped ; and if the seller or exporter shall refuse to make oath, he shall for every such offence forfeit and pay the sum of two hundred dollars. 59. No master or commander of any vessel shall take on board any such cask or barrel or other inspectable commodity as aforesaid, without being inspected and branded as required, under the penalty of two hundred dollars for each offence. 60. Provided, hoivever, that the provisions of sections fifty- five, fifty-six, fifty-seven, fifty-eight, and fifty-nine of this chap- ter shall not extend to the town of Newbern, so far as relate to tar, pitch, and turpentine. 61. Shingles shall not be less than eighteen inches long, four inches broad, and five eighths of an inch thick ; should they be larger, they shall not for that reason be considered un- merchantable. 62. Boards or plank shall be deemed merchantable, and passed by any inspector, that are free from splits not more than twelve inches long, have no edge less than half an inch thick, and as near as may be of an equal thickness at each end ; and every board, plank, piece of scantling, or other square timber, being marked with the number of more superficial feet than are contained therein, shall be forfeited to the wardens of the county for the use of the poor. Provided, neverlhelcss, that no shingles, boards, plank, or scantling, shall be inspected, unless required by the purchaser. 63. The court of pleas and quarter-sessions for the county of New-llajiover, a majority of the justices being present, shall, at the session at which they appoint inspectors for the town of Wilmington, also ap])oint one inspector for each of the saw-mills in the vicinity of said town, for the inspection of lumber only ; and if any such insjiector shall fail, when called upon by the proprietors or their agents, promptly and Chap. 60.] inspections. 353 faithfully to discharge his duties, he shall, for every failure, furleit and pay to the party aggrieved fifty dollars. (^i. The inspection of saw-mill and other lumber and ton i.umber and timber on the Cape Fear river, and at the several ports belong- f™ timber ing to the same, shall be governed by the following rules, to on Cape Fear wit: All sound boards and planks, with square edges find ^'^''-rr^ I" ^■ showing heart one half the length, and as near an equal thick- c.'sb, s. 2, 3 • ness at both ends as may be, and split not more than one |^J^' ''^ 5^ !. third of the length ; all sound scantling with square edges, and as near the same dimensions at both ends as may be ; and all sound scantling with square edges two thirds of their length, and the bark not more than one inch wide, and as near the same dimensions as may be at both ends ; and all sound ton timber squaring eleven inches and upwards, and showing heart one half the length, shall be merchantable ; and all saw- mill or other lumber or ton timber, not being of such descrip- tion, shall be refuse. Any inspector, who shall inspect saw- Penalty for in- mill lumber by any rules dift(?rent from those prescribed by be^by Stlrc™" this section, shall forfeit and pay the sum of one hundred dol- rules.— R. s. c. lars for every otienee. ^^' *" ^^' 65. All steam mill lumber, not herein otherwise provided Steam mill for, showing heart one half the lengt.h, shall be merchantable ; |;;™^^f;,j''.!!'R. and no inspector, having a stated salary from the proprietor of s. c. 59, s. 58. a steam mill, shall inspect any timber brought to the mill, un- less by consent of the seller, under the penalty of fifty dollars. 66. All ton and square timber and saw-mill lumber, at the Saw-mill lum- several markets and mills in the State, shall be measured by [^"JiJ'gr^'oJr superficial or board measure ; and any person, who shall measured, sell such timber by any other measure, shall pay ten dollars for every offence. 67. All shingles, boards, plank, and scantling inspected, k'^.'"?J'''1p shall be culled, and the refuse separated from the merchant- be euii'ed.— R. able, except there be an agreement otherwise between the pur- ^- '^- ^^' ^- ^*'- chaser and seller. 68. No inspector shall purchase any cuUings, or other arti- No inspector to cles that do not pass inspection, upon pain of forfeiting one &J?1!;r"'s"c' hundred dollars. B9, s. 62. 69. If any person, who is not a legal or sworn inspector of Misdemeanor, lumber or other articles, presume to act as such, he shall forfeit fo'tm^'as'^"in-'^ and pay one hundred dollars, and be deemed to be guilty of a spector.— R. s. misdemeanor. "• ^^' '^^ ^^" 70. The several penalties and forfeitures by this chapter in- Fines, &-c., how flicted, unless otherwise provided, shall be applied one half to cfsD^. m. the use of the prosecutor, and the other half to the county wherein such penalty shall be incurred. 71. In case the purchaser and seller cannot agree as to the Disimtes about amount to be allowed for extra cooperage and defective barrels .age''&c?m'vvil- in the town of Wilmington, any inspector of naval stores and ""'"gton, bow provisions in the town, at the instance of either, shall estab- r! ".'c/inVsT" lish the amount to be allowed therefor, and such estimate shall *'°' li^-i-.^- ■'O- be conclusive ; and if such inspector refuse to make the esti- •so* 354 INSPECTIONS. [ClIAP. 60. • mate when called on, he shall forfeit and pay twenty-five dol- lars to any person who will sue for the same. Sale of fire- 72. All fii-ewood sold in incorporated towns shall be sold by tTbe bvcorr' ^^^^ ^°^^^ '^"'^ "°* otherwise; and each cord shall contain eight -Efs.'c^M,' feet in length, four feet in height, and four feet in breadth; and ''■""■ shall be corded by the seller under the penalty of two dollars for each oftt?nce, to the use of the informer. Inspectors of 73. The court of pleas and quarter-sessions for the county wood for New- ^f Craven may appoint one or more inspectors of firewood mXh-iX''' for the town of Newbern, who shall reside therein and inspect all such wood as may be carried to the town for sale ; and be- fore entering upon their duties, they shall take the oaths and give the bonds required of other inspectors, and shall receive, for inspecting each cord of wood, four cents, to be paid by the purchaser. Of provisions 74. The court of pleas and quarter-sessions, a majority of "ofnted^bv aT ^^^^ justices being present, may appoint for their county an in- ^oiinty.-isTsf spector of provisions and forage, who shall hold his ollice for c. 43, s. 1. ^j^g ^gj,j^^ Qf £yg years after his appointment. Duty of such 75. Such inspector, when any article of provision or forage ' iSisT'iil is imported from any place out of the State, such as beef, pork, 2; 1850, c.'ri, fish. Hour made of" wheat, buckwheat, or rye, (said articles '•^■*- being in barrels, half-barrels, or kegs); butter by the firkin; cheese by the box ; hay or fodder pressed in bales or bundles; or hogsheads of bacon ; shall be compelled, when such articles are oflered for sale, to inspect, examine, and brand them according to such rules and regulations as may be established by the court of pleas and quarter-sessions. Provided, however, that when any of said articles shall have been before inspected by any inspector of the State, they shall not be subject to re- inspection. Shall give 76. The said inspector shall enter into bond in the sum of ^°"'^- five hundred dollars payable to the State of North Carolina, conditioned for the faithful performance of the duties of his office, which bond the court shall take ; and he shall be cnti- Fees.-i848, c. ^j^j ^^ g^^^^.j^ ^^^^^ ^^ ^^^^ 1^^ pi-gscribcd by the court. Penalty for 77. If any pcrson shall sell any article of forage or pro- selling fomge, visions aforesaid, without the same having been inspected, S!-is6o7c!''' contrary to the true intent and meaning of this chapter, he ^*'S-2- shall, for every ollehce, forfeit and pay one hundred dollars. _ May appoint 78. Any such inspector, whenever the business may require itfTiVf, 3 it' "^^^y appoint a deputy, who shall take an oath of office, and ' ' ' ' ' for his oificial duty and penalties incurred by him, the inspec- tor shall be liable. Fees, by whom 79. The fees of inspectors shall be paid by the purchaser or C*^'''' exporter of the articles inspected, and if any inspector shall Sm-R.s!' receive any greater fees than arc by law allowed, he shall for- c. 69, s. D«, 67. fgit and pay ten doUars for every oll'ence to any person suing for the same. Chap. 61.] INTERNAL IMPROVEMENT. 355 CHAPTER 61. INTERNAL IMPROVEMENT. Section 1. Board of internal improvements in- corporated. 2. Sessions of board, and p.ay of members and secretary. 3. Board may make rnles and by-laws. 4. To keep record of proceedings, and report to Assembly. 5. Its fund deposited in banks. 6. Treasurer to keep accounts of board. Board to examine them yearly. Clerk to aid treasm-er. His com- pensation. 7. Duty of board in making contracts. 8. State to be stockholder in companies, when. 9. Railroad and other companies, may enter on lauds to build their works, &c. 10. Proceedings to assess damages. Com- missioners appointed. 11. Infants, &c., how notified. 12. A day for commissioners to meet, ap- pointed by court. One may adjourn from day to day. 13. Owners to have five days notice of meeting. 14. Commissioners sworn. Their oath. 15. To meet and assess damages. Slay administer oaths. 16. Damages, how assessed. 17. Report of their proceedings made and subscribed. Form of report. 18. Returned to court; proceedings there- upon. 19. Appeal allowed. Section 20. On confirmation of report and pay- ment of damages, company to have fee. 21. Dwelling-houses, &c., not to be con- demned. 22. Company, may t.ike materials from adjoining land. 23. Who to value them. 24. Proceedings to have them valued. 25. Justice to preside at trial and render judgment. 26. Appeal allowed. 27. Width of land condemned for rail- roads. 28. For plank-roads, canals, and turupikes. 29. Quantity of land allowed to be con- demned for depots, &c. 30. Railroad, &c., crossing other roads, not to obstruct them. 31. Company may .turn roads, &c. 32. Damages allowed owners on whose land roads are turned. 33. New road made good as former one. 34. Incorporated companies to furnish en- gineering bureau with maps, &c., of improvements. 35. Railroad and other companies, to keep account of produce carried. To re- port to governor. 36. Commissioners and freeholders paid. Costs paid by company, except, &c. 37. No railroad, plank-road, &c., to be established, but by law. Penalty and misdemeanor therefor. 38. Board to appoint officers to represent the State. rated.— K. S. I, s. 3.— R. , 61, s. 2. 1. The president and directors of the board of internal im- Board of inter" provements shall consist of the governor of the State, who ™ent™'in°corpo- shall, ex officio, be president thereof, and of two commissioners rat to be appointed biennially by the governor, with the advice of g the council of State ; 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 corpo- rate body, under the name and style of " The President and Directors of the Board of Internal Lnprovements," and sliall have all the rights, powers, and privileges of a cor|)oralion which may be necessary to enable it to discharge the duties imposed on it and no more. i.i 356 INTERNAL IMPROVEMENT. [Chap. 61 Sessions of board, nnJ pay ofmembei'siind sccretiirv. — R. S. c. 60," s. 4.— K. S. c. 61, S.3. Board may make rules and by-laws. — R. S. c. 60, s. 5. To keep record of proceedings, and report to Assembly. — R. S. e. 60, s. 9. Its fund de- posited in bunks. — R. S. c. 61, s. 5. Public treas- urer to keep accounts of board. Board to ex- amine them yearly. Clerk to aid treasurer. His compensa- tion. — R. S. c. 60, s. 8.— R. S. c. fil, s. 4. Duty of board in making con- tracts. — R. S. c. GO, s. 6. State to be stockholder in companies to the amount a*;^'^5 i";;";'' accounts stated in writins? and si2;ned by the jiarty owing the matters. — U.S. , ,, , , i i i i ^ i i ' i i c. 62, s. G.— same, and all balances due on such debts and demands, where 1844, c. 42, s. 1. ^j^g principal of such debt or demand, or balance due thereon, does not exceed one hundred dollars, though the principal and interest thereof may exceed that sum; and all judgments ren- dered on such debts and demands wliere the principal of the judgment may not exceed one hundred dollars, though the principal, interest, and costs may exceed that sum. And all debts and demands of sixty dollars and under due on any parol agreement, or for goods, wares, and merchandise sold and delivered, or for work or labor done, or for sjjecific articles, and all balances of sixty dollars and under due on such last-men- tioned debts or demands, and all judgments rendered thereon, where the principal of the judgment may not exceed sixty dollars, though the principal, interest, and costs may exceed that sum ; and all forfeitures or penalties, not exceeding one hundred dollars, shall be cognizable and determinable by any one justice of the peace out of court. Warrants from, 7. AH warrants issued by a justice of the peace shall be when return- ^^^^ returnable on or before thirty days from the date thereof, Sundays excepted, and not after ; and when issued against any person, (executors, administrators, and female debtors ex- cepted,) shall command the sheriff, constable, or other officer, to take the body of the person therein mentioned as defend- ant, if to be found in his county, to answer the complaint of the plaintiff before some justice of his county ; and the officer Bail taken by -when required by the plaintiff, shall take bond with sufficient quired.' ''^' security of the party arrested, in double the sum for which he shall be held in arrest, (which sum and how due shall be ex- pressed in the waiTant,) conditioned for his appearance at a certain time and place, therein to be specified, before some Bail-iiontl justice of the county where the warrant issued; which bond, deemed assign- without any Indorsement to that effect, shall be regarded as timed-officCT assigned by such officer to the plainliff therein named, and not taking shall bc returned with the warrant and liled by Ihe justice who ''""liUii.- shall try the warrant with the other papers in" the suit; and in 1!. s. c. G2,s.7. ease the officer shall fail to take such bond, he shall be held and deemed special bail, and the plaintiff may proceed to judgment against him according to the rules hereinafter pre- scribed. Defendant, re- 8. When an officer shall serve a warrant on any person who Chap. 62.] justices of the peace. 363 shall refuse to give bond and security for his appearance as fnsinjc to give aforesaid, the officer shall commit such person to the jail of '"'!'' '^'""'""' his county, in order that he may have him forthcoming at the day appointed for trial, and shall 'produce his prisoner at the trial; and all warrants shall be heard or determined on the warrants, day appointed by the officer serving the same, which shall be when trieri. and on or before the return day set forth in the warrant, riniess the r"|fo"tiiV^" justice, for good reasons, shall put off the trial to some other them.— u. 8. e. day ; the officer shall notify the plaintiff of the time and place ; ' ^' ■"■ and in case the plaintiff" shall fail to attend or prosecute his suit on the day appointed, the defendant appearing shall be discharged. Provided., that when the officer shall have com- mitted any defendant to jail, he shall give immediate notice thereof to some justice in the county, who shall appoint a day for the trial, and notice of the same shall be given to the plaintiff by the officer. 9. The bail in civil cases taken under the directions of this Bail deemed chapter, shall be deemed special bail, and as such shall be special— pro- liable to the recovery of the plaintiff; and whenever the plain- raoved''tocoun- tiff shall desire to subject the bail, he shall make affidavit to l;!,;"""")^",.'',! that effect before some justice of the peace, who shall there- there, &c.—R. upon, by written order, command that the proceedings be re- f;,"^; ^W ®*T J. 1 1 I 1 • • 1 1 • lo4i, c. 31, s. 3. turned by the person having them in charge, to the ensuing county court, where on motion the judgment may be con- firmed, and all the proceedings shall become a record of that court; and thereupon the same course of proceeding shall be had in that court to subject the bail, as if the case had been commenced, tried, and determined in that court. 10. Such bail, at anytime before linal judgment against May arrest and him, may arrest the body of his principal, and secure him pr[noi™T— r. until he shall have an opportunity of surrendering him in dis- S- c. 62, s. lo. charge of himself; which surrender, if made before the judg- ment be confirmed by the court, as provided in the preceding section, shall be made to the officer who arrested the defend- ant, and he shall receive and hold the body in his custody as if bail had never been given ; and if made after the confirma- tion of such judgment, the same shall be made in open court. 11. When any judgment is given by a justice, he or any Execntionf.'m other justice may award execution against the goods and .justice, hnw to chattels, lands and tenements, or body, of the party cast ; returned. which process shall l^e executed and returned by the officer to whom the same may be directed, according to the command of the writ. Prorided a/irnys, that where a judgment shall May be stayed be given by a justice of the peace in any matter whereof he hy giving secu- may have jurisdiction, (unless otherwise ordered,) execution thereon shall be stayed in the following manner, namely, for sums not exceeding four dollars, twenty days ; for sums above four dollars and not exceeding ten dollars, sixty days ; for sums above ten dollars and not exceeding twenty dollars, one hundred and twenty days ; and for sums above twenty dollars, 564 JUSTICES OF THE PEACE. [ClIAP. 62. Stay not allow- ed in suit on former .iud<;- Justice may, on Ciiiise, continue a trial.— U. S. c. 62, s. 13. Deposition of witness, when allowed to be Security, how six montlis. And for the payment thereof with interest and 62 l?!!." costs, the party praying such stay sliall give sufficient security, and the acknowledgment of the surety, entered by the justice and signed by the surety, shall be sufficient to bind him. If the judgment shall not be discharged at the time to which the execution has been stayed, then any justice may issue execu- tion against the principal and surety, or either of them. 12. On the trial of a warrant issued on a former judgment, the judgment shall be evidence of the debt, subject to such •— I'- *'•<=• payments as may have been made; and if judgment pass ' " '" against the defendant, he shall not be entitled to any stay of execution. 13. Any justice, before whom a warrant is brought for trial, on sufficient excuse shown on oath by the plaintiff or defend- ant, or his agent, may from time to time continue the same for trial. But such continuance shall not exceed thirty days, and any justice may try the case. 14. When on the trial of a civU warrant, the testimony of a witness not resident within the county where the same is read.— R. s. 0. pending, is required by either party, his deposition taken by a ' ■ ■ justice of the county where the witness may be, upon reason- able notice to the adverse party of the time and place of tak- ing the same, shall be read in evidence ; and the justice may issue a summons to compel the attendance of the witness. When jndgm't 15. Whenever a judgment shall be given by a justice iu absencrof par- ^1'"^ absence of the plaintiff' or defendant, whether execution ty, in what hath been issued or not, on application of such absent party, new trial mav ^^^ f^gcnt, or attorney, within ten days after the date of said bo obtained.— judgment, to the justice who awarded the same, and sufficient '*■ "■ cause shown on oath why he could not attend on the day of trial, such justice shall issue his order to the plaintilT, defendant, or officer (as the case may require) in possession of the papers relative to the suit, to forbear any further proceedings thereon, and immediately to bring the same before him or some other justice for reconsideration ; and shall issue his summons di- rected to some proper officer, to cause the parties, with their witnesses, to appear before him or some other justice, at such time and place, not exceeding thirty days, as he may think proper, where the case shall undergo a fair investigation, and be subject to the same proceedings as if it had never been acted on ; and the officer shall receive for executing the same, like fees as for summoning witnesses, to be taxed against the party at whose instance it issued. 16. All executions, issued by a justice of the peace against the estate of any person, sliall be made returnable in three months from llie date thereof, and shall be directed to the sheriff, constable, or other lawful officer, commanding him, s. c. 62, s. 16. that of the goods and chattels of the party cast he make the sums of money therein mentione4, and for want of such goods and chattels to satisfy said execution, that he levy on the lands and tenements of such person, and make return K. S. c. Execution of justice, when returnable, to whom i.fsucd, again.st what property. — R. Chap. 62.] justices of the peace. 365 thereof to the justice who issued the same ; and the officer in his retarii shall set forth on the execution the money he has made of the goods and chattels, and what lands and tene- ments he has levied on, where situate, on what watercourse, and whose land it adjoins. 17. Any justice, to whom a levy on land is returned, shall Levica on land, return the execution, with all other papers on which the judg- \'l^l.l 'Xm't'— ment was given, to the next county court to be held for his R. S.c. C2,s.'i6. county ; and the land shall by order of the court be sold by the sheriff of said county, or so much thereof as shall be sufficient to satisfy the judgment, in the same manner as real property is sold under writs of Jieri facias, or venditioni ex- ponas, issuing upon judgments of that court ; and the clerk of the court shall, in a well-bound book kept for that purpose, record all the papers and proceedings had before the justice. 18. Any justice, on application of the plaintiff or defendant. Justice to di- shall direct the sheriff, constable, or other officer, by an order summon wU- in writing on the process, to summon witnesses to appear and "ess. give testimony at the time and place appointed for trial ; and Penalty on wit- each witness failing to appear and give evidence shall forfeit {Sng"— R.'s. and pay four dollars to the party at whose instance he was c. 62, s. 17. summoned, and further be liable to him for all damage sus- tained by non-attendance ; and the fine shall be recovered before any justice, unless the witness on affidavit or otherwise, shall show sufficient cause to the contrary. 19. When any execution shall issue to a sheriff, constable. Execution or other officer, in virtue of a judgment obtained before any "g'^'!'^': onere- justice, and the defendant shall remove to any other county, the county ,how and such officer cannot find property to satisfy the execution, E!R'|''e''62"'s he shall return it with the judgment to the next county court; 18. ' ' ' "' " and the plaintiff shall be entitled to an execution for the whole or any part of the judgment which remains unpaid; and the clerk, by order of the court, shall record the same and issue execution to any other county, in the same manner as if the judgment had been rendered in that court. 20. Any person having a judgment rendered by a justice Judgment of of the peace, may procure the clexk of the county court of the iTremo"7to county in which judgment was obtained, to certify under the another coun- seal of court, that the justice who gave the judgment was, at the 2' 'is.''' ''' °' '^^' rendition thereof, a justice of said county ; on which judgment thus certified, any justice in any other county may award ex- ecution for the sums therein expressed. 21. Any justice of the peace, may accept any civil office or Justice mny appointment of profit or trust, under the authority of the undTu^'s!- United States, the duties of which shall be confined to the R- S. c. 62,"s. State, if the same be not incompatible with his said office. ^''" 22. No process issued by a justice of the peace shall be set Process of, not aside for the want of form, if the essential matters are set forth k. s^'.^u-^^sr therein. 21. 23. If any party to a trial before a justice of the peace, or Apjienifroin any one or more persons of such party, shall be dissatisfied iuV«xi™™np 31* 266 JUSTICES OF THE PEACE. [ChAP. 62. or CO. court, with the judgment given therein, he may appeal to the next ^y'|™'^°''^;term of tlie superior or county court, at his option, on giving 2:i.— iboo, c.'jj good security lor prosecuting the appeal with etiect ; and the 3- judgment against such as do not appeal, and the appeal shall be proceeded on in like manner and under the same rules and regulations, as appeals in like cases from the county to the superior court. Security for 24. Where appeals shall be granted from the judgment of gfvC''^udpro- a justice, the acknowledgment of the surety, subscribed by ceeded against, jjj^^ jj,jj attested by the justice, shall be sulTicient to bind him -R. S. c. 62, 9. ^^ ^j^.^^^ ^^ ^^^^^ perform the judgment of the court ; and where judgment shall be against the appellant, the same shall be entered on motion against the surety ; and execution shall issue against the principal, and surety, or either of them as the appellee may choose. Appeal return- 25_ When any justice shall grant an appeal, he shall return beforeS" the same on or before the second day of the term, to which it day of term, ^r^y ijg returnable ; and on application of either party, he shall ^oned by Wm" issue subpoBuas directed to the sheriff or other officer in any E.S. 0.62,5.24. county, for witnesses to appear and give testimony at court. Persons unpro- 26. When any person, against whom judgment is rendered vided at trial j^y ^ justice of the pcacc, shall desire to appeal therefrom or for st-ay^'r ap- stay the execution thereof, and shall be unprovided at the trial peal allowed ^.j^]^ [,jg sureties, the justice, on affidavit made of the same, PjocuTiL-R. shall note on the judgment that tlie party is allowed to appeal S.c. 62, s. 25. Qj g|.j^y j-i^ig execution within ten days thereafter ; and the party may within that time, before such justice or some other, have the same allowed in the manner already provided. Or absent be- 27. And when judgment shall be rendered by any justice c^iuseofsick- Ij^ ^i,g absence of a party, who shall desire to appeal or stay rowed ton" the execution, on affidavit made before said justice, (or if he days fwst^v ijg (jgj^j oj. g^^ of tije couiity, before any other justice,) within s' cl'oars. 23.' ten days of the rendition of the judgment, that he was pre- vented from attending the trial by sickness, mistaking the day of trial, or other sufficient cause, and that he is likely to be injured by such judgment, then such justice may grant an appeal, or stay of execution, on the same terms and in like manner, as if such appeal or stay had been prayed at the time of rendering judgment. Proceedings of 28. When any party shall be entitled under cither of the iwo^precedh'g two preceding sections to have a stay or appeal, then the jus- sections.— K._ tice, if the judgment or papers be not in his own hands, shall S. c. 62, s. 25. ^y ^j^ written command to the officer or any other who may have them, cause thciu to be returned to him, to the end that such stay may be entered, or such appeal be allowed : and in the case of an appeal, the judgment with such other papers and documents as may relate thereto, shall be returned by the justice to tiie ne.xt term of the court to which the appeal may "have been taken; and the justice, in the same or some other written order, shall comiuand the officer forthwitii to notify the adverse party of the appeal, and to what court it is taken. Chap. 62.] justices of the peace. 367 29. Nothing in the three preceding sections contained shall Excci^Uon may prevent the party recovering jndgment, from suing out execu- Hk^jj™,,. ga^s; lion at any time before the same is stayed, or the appeal is 2g. granted. 30. If execution shall issue upon any judgment, where the Vpon security defendant prayed an appeal or stay of execution in manner sT^pe^u'offi- aforesaid, before the ten days be expired, upon security bemg cer to^etum given as heretofore directed, the same shall be returned to the •„^,i"^'™i;'.''s. justice who issued it, and shall not be acted on by any officer ; c 62, s. 2;. and the officer, or other person having the execution, due no- tice being given him in writing from the justice, shall deliver up the same or be liable to the action of the party aggi-ieved. 31. Every justice of the peace within his county, shall have Justices to ro- power to restrain evil-doers, rioters, and disturbers of the pub- |;'ij dij,"°,.^ek lie peace, and to take them and cause them to be imprisoned ntthe peace.— and punished, and take of them security for their good be- ^g. " ""■ ^'' '' havior. 32. If any riot, assembly, or rout of people against law be Duty of two made, any two justices of the peace and the sheriff shall come {[Jf ^^if^^^-^ with the power of the county (if need be) and arrest t'""^™' ^PPve^^'/'g and the same justices and sherilf shall have power to record "embLgesTri- that which they find done in their presence against law; and ots^^&c.-R. S. if such offenders be departed before the coming of the justices "■ ''^- ' ' and sheriff, then the same justices and sheriff shall diligently inquire of such riot, rout, or unlawful assembly and shall re- cord the same ; and shall return the record to the next suc- ceeding term of the court of pleas and quarter-sessions, or of the superior court of their county. 33. The justices of the peace, dwelling nighest where such Special duty J , . , ' I 1 1 11 1 1 1 1 of neai-est us- riot, rout, or unlawful assembly shall be made, are charged tices.-R. S. c. specially to execute the provisions of the preceding section. 02, s. 30. 34. But all magistrates shall suppress such riots, routs, and J;.^fgft^^?|'" unlawful assemblies : and they may, when necessary, use the &'c._r. s. J. power of the county for that purpose, and shall take such of- 62, s. 31. fenders and put them in prison, to be dealt with according to law. 35. Whenever any defendant shall be brought before a jus- On malicious tice of the peace by the State's warrant, charged with any of- j^eTty otfeiTes, fence of an inferior nature; or upon a warrant craving bond &c., justice for keeping the peace, and it shall appear that the prosecution ™^vrt'o''pay is without cause and malicious, the justice may in his discre- costs.— isis.c. tion order the prosecutor to pay the costs, and may issue ex- ^^• ecution therefor. 36. Justices of the peace, resigning, shall deliver their re- Cesignation of signations to the clerk of the county court, to be by hmi trans- '^..^j ^^ £,1^,.^ mitted to the proper authority, to enable the clerk to keep a of co. court. correct list of the justices in his county. Section 0. Bond for money and other things, 1 D. & B. 226 ; for sped/tc nrticles, 2 p & B. 227 ; pnmhle in current bank-notcg, 10 Ire. 58. Liquidated aceount, 7 Ire. 143, 5 lb. 231, 4 Dev. ao, lb. 141. Balance due, 1 Dev. 3S7, lb. 3»1. Inqilitd contracts, 2 Dcv. 111. 568 LANDLORD AND TENANT. [ChAP. 63. Farmer jurlr/menls. 5 Ire. 150, 4 Dcv. 479. Incidental quesllmis, 3 Ire. 395. No jurisillc- hon of claim fur damar/es, 4 Htiwks, 182, 2 Dev. 229 ; iiur where election, 2 Dev. 41 1 j nor of guarmlii, 6 Ire. 300, 2 D. & B. 225, 4 Dev. 201; nor cumliliomtl promise, 8 Ire. 0. traiid on ]urisilictlon. Bus. 221. Trover for judgment, Ire. 358. Justice to retain judgment, 11 Ire. 371. Skct. 7. Seal, when necessarg, 11 Ire. 242, 5 lb. 72; when not, 7 Ire. 400. Form of loarrant, 13 Ire. 7, 11 lb. 240, 5 lb. 455, 2 D. & B. 227; on penal statute, 1 D. & B. 306, l.Iones, 436; how signed, 1 Car. L. R. 548. Ti-ial, 3 Mur. 121. Judgment mesumed right, 13 Ire. 72, 2 D. & B. 539, 3 Dev. 91; not cuUulerallg impeachetl, (i Ire. 243, 7 lb. 398, 4 1). & B. 454, 6 he. 557; how proved, 3 Ire. 13, 1 Dev. 415; when void, 3 Dev. 360, 1 Ire. 473. • ' > > Sect. 11. Justice not to sign as surely, 10 Ire. 126. Form of execution, 5 Ire. 22 4 D. & B. 414, Ih. 187, 4 Dcv. 95, 3 Hawks, 403. Jiemedg against slayer, 1 Dev. 378. JJa- lility of justice fur insufficient surety, 4 D. & B. 351. Skct. 13. .\tay postpone, for thirty days excluding Sundays, 4 Dev. 464. Sect. 10. When relurnal/le, 4 D. & B. 160; stay after levy. 5 Ire. 218. Levy after return day, 1 Dev. 444. Priority if execution inter se'., 3 Ire. 488. Sect. 23. Appeal vacates j'udgnient, 2 Mur. 227. Justice not to sii/n as surely, 1 Hawks, 319. May waive ajipcal, 2 Ire. 44. J-ffect of waiver, Bus. 392. Liiibililu of surety, 2 Dcv. 109, 3 Ire. 13. .- . j j j, Sect. 24. Justice must attest, 2 Hnwks, 532. Sect. 25. May return at subsequent term, 1 Dev. 176. Sect. 31. 5 Ire. 72. CHAPTER 63, LANDLORD AND TENANT. Section 1. lieiits payable in crops exempt from execution, except for taxes, 2. Landlord may recover for use and oc- cupation where demise is not by deed. One let into possession under contract of purcliase liable for use. Section &c. Void parol lenses not affect" cd. 3. Rents becoming due after dcatli of tenant for life, belong to his exec- utor, &c. — apportioned iwcording to time of enjoyment. Rents payable 1. WHENEVER the lessee of land shall, for the rent thereof, 'emp'tTrom exe- ^g^ee to deliver to his landlord a certain share of the crop, or fortaxet'il'''" ^ certain part of a specified kind thereof, to be grown on the iMotcfsSjS. 1. 'and, then so much of the crop, or of that particular kind thereof, grown on the premises by the lessee or any under-ten- ant, as will be sufficient to satisfy the rent for the year, shall be e.xempt from execution ; and no part of the kind of crop of which the rent is reserved shall be levied on and removed from the premises by virtue of any execution, except for taxes, under any pretence whatever, unless the party at wliose suit the exe- cution may issue shall, before removal, set apart for the land- lord, he having due notice thereof, the rent reserved, or shall satisfy him therefor. 2. Whereas difficulties many times occur in the recovery of rents, where the demise is not by deed: For remedy whereof, tiou ^yhe;e do- Bc U ciiavtccl, that the landlord, when the agreement is not bv mi-e IS not by i i , » . ^ . -^ . . -^ deed. deed, may recover a reasonable satisfaction for the lands, tene- ^osse's°sio"'° "1^11*^) or hereditaments held or occui)ied by the defendant, in mideTcontraot action of debt or on the case for the use and occu|)ation of of purchase, what was SO held or enjoyed; and if, in evidence on the trial Landlord may recover for use and occnpa ClIAP. 64.] LEGACIES, DISTRIBUTIVE SHARES, ETC. 569 of the action, any parol demise or any agreement, (not being ijnkie for use, by deed,) wherein a certain rent was reserved, shall appear, the y^jj pj,^^, plaintitl' shall not on that account be nonsuited, but may use le;i«es not the same as an evidence of the quantum of damages to be i[i5y'c'.'i20 s. recovered. And it is hereby declared, that one let into posses- i— n do. II. sion under a contract of purchase which fails, is within the '^' '"' "' meaning and purview of this section, and shall be liable for his use and occupation. Provided, hoivever, that nothing herein contained shall be construed to make valid any parol lease by law elsewhere made void. 3. Rents reserved by tenant for life upon any demise which l!™t?bocom- determiued on his death, for the year in which he may die, or jeTith of'tenant for any previous year, which rents may not become payable f'"" '.'■"■'■■";'• shall have accrued, under the same rules which now prevail. l'-''-c.ij5,-..i.i. 19. The presumption of payment, or abandonment of the Rights of mort- right of redemption of mortgages and of other equitable in- ,^"|.°/„agc!- pre terests, shall arise within ten years after the forfeiture of said sumed settled mortgage, or last payment on the same, or the right of action &'^J^LK"!^'.''e.'''' shall have accrued on any equitable interest or claim, under m, s. li. the like rules as aforesaid. 20. Whenever any person shall remain in possession of a Adverse pos slave or other personal property, until such possession is pro- scrndpropeny tected by the statute of limitations, he and those claiming three years, to under him, shall be deemed and held to have a good and abso- |'7c. 65 ^s7i8'. lute title to such slave or other personal property, against all persons whose claim is barred by the said statute. Provided, that nothing herein contained shall in any way affect the law that requires gifts of slaves to be in writing. 21. Whenever several tenants in common, or joint owners If one joint of personal property shall bring their action to recover the °J^"^[ °^/'"'" same, or for damages done to such property, and any of them h^ml rights shall be barred of their recovery by limitation of time, the alreaeT— °' rights of the others shall not be affected thereby; but they may 1852, c.'gi. maintain then- suit, notwithstanding such bar, and have a ver- dict and judgment according to their right and interest in said property. 22. In suits to recover any debt or demand due from any Barofstat.iim. firm after the dissolution thereof, or from the makers of any l:T"'"'^r"*/* -..' J 10 himself, bv promissory note, no act, admission, or acknowledgment done admissions of a or made by any partner after the dissolution of the copartner- Pftrtnf"- orjoint !-• 1 !• ii 1 f ,-, • '„ . contractor. — snip, or by any ot the makers of the promissory note after the 1852, o. 5i, s. i. statute of limitations shall have barred the same, shall be re- ceived as evidence to repel the statute, but as against the part- ner or the maker of the promissory note, doing the act or mak- ing the admission or acknowledgment. 23. No railroad, plank-road, turnpike, or canal company shall Titles of rail- be barred of, or be presumed to have conveyed, any real estate, companfes'to "^ right of way, easement, leasehold, or other interest in the soil, estate con- which may have been condemned or otherwise obtained for fig"'"^'/ ^"[^.^ its use, as a right of way, depot, station-house, or place of &e., not barred landing, by any statute of limitation, or by occupation of the cupaUon?' °''" same by any person whatever. But all such jjroperty shall be and remain, and be deemed and held to be, the property, es- tate, and right of such company, according to the terms of its charter, until it may be shown, that the same has been de- parted with, by some writing duly executed by such company to convey the title thereof, from and out of said company. LITERARY FUND, AKD COMMON SCHOOLS. [ChAP. G6. Sect. 1. Tlie sfnInU iiichitles powers, 3 Dev. 6; but not n Asseml)1y. 6. Duty of board in liaving swamp lands sui"veyed, drained, &c. 6. Written consent of owners to vest title in corporation. Section 7. Wlien owners refuse, liow corporation to proceed. 8. Lands of persons improved by canals, &c., to pay a proportion of expense. 9. Board may appoint an engineer, sur- veyor, &c. 10. May enter upon any lands for surrey- inp, &c. Titles to swamp lands not registered, vested in corporation. Proviso. 11. May sell reclaimed lands. Proceeds of, and entry-money to become prin- cipal. Chap. 66.] literary fund, and common schools. 377 Section 12. Shall expend no money to reclaim lands, unless, &c. 13. May employ counsel, and compromise suits. 14. May buy or exchange lands. 15. Turnpike from Plymouth to Pungo, &;c. 16. Amount appropriated. Contractor to give bond. How land condemned for road. 17. Board may contribute lands for a ca- nal from Waecamaw to Little River. 18. Appropriation of five thousand dol- lars, for Open Ground Prairie. Section 19. Forfeitures of land, by persons failing to pay tax. 20. Agent of swamp lands appointed. 21. His duties. 22. May be removed. Compensation one thousand dollars. 23. Board may procure others to prose- cute suits and share the recovery. 24. Presumption of title in favor of litera- ry board, or their assigns. 25. Board baiTed by time, only when State is. ir. COMMON SCHOOLS. 26. Income of literary fund, how distrib uted. 27. Superintendent for State, of common schools, elected by Assembly. For counties, appointed by county courts. 28. Chairman for county superintendents. 29. Chairman to give bond. His com- pensation. 30. Clerk of county court to be clerk of board of superintendents, &c. His duty. Notices issued by him, served by sheriff. 31. Fund paid to counties, when, and how. 32. Tax to be laid by county for school purposes. Collected by sheriff. Pay- ment by him, how enforced. 33. Free negroes not taxed for schools, &c. 34. School districts laid off and recorded. 35. School committees elected by voters of members of house of commons. Election, when and how held, &c. Appeal from school committee to board of superintendents. 36. School committee, a body corporate. Its rights and powers. 37. Sites for school-houses procured by committee. How laud condemned for site. 38. Committees to report within one month. 39. Fund distributed equally among dis- tricts. 40. Notice given of amount, due eaoli dis- trict. 41. What taught in schools, &c. When children may attend schools out of their districts. 42. Committee of examination appointed by superintendent. When convened. Terra of office. 43. Teacher to obtain certificate of qnali- 32 fication. Certificate good for one year. School committee to employ teacher. His duty, and how paid. Committee- man not to be employed. Chairman not to pay draft, unless accompanied with report of school committee, &c. . Committee not to have scliool funds ; may reckon expense and draw on chairman for purchase of site, &c. . To visit scliools ; may joiu others to continue schools. . Board may make other needful rules. . Chairman to keep account of moneys received and paid out. Examined by committee of finance or clerk of county court. Shall annually report to State superintendent, &c. Copies of reports to be filed, and posted up at court house. . Shall pay over money to successor; in case of default, liow recovered. . Liable to twelve per cent, damages on drafts unpaid, &c. . JlisappUcation of school fuud, a mis- demeanor. . Penalty for neglect, on superintendent, committee-man, and clerks. County solicitor to pr6secute. !. State superintendent, duties of. Tc see that school laws are executed, money duly applied, defaulters sued, and deliver lectures. ). To attend literary board when direct- ed. His pay. 3. Treasurer to furnish him yearly state- ment of money paid to counties. r. Superintendent to issue, yearly, in- structions and forms for returns. 378 LITERARY FUND, AND COMMON SCHOOLS. [ChAP. C6. Section 58. To make annual report to governor. Report to be printed. 59. Pcnulty on St.ite superintendent for neglect of duty. May be removed. Vacaucy, filled by literary board. Section 60. Allowance to clerk and sheriff paid out of school fund. 61. Penalty of $500 on chainnan, for fail- ing to report to superintendent. Its style.— R. Of whom com- posed. Secretary ap pointed. Pay of mem Property, stocks, and funds vested corporation I. LITERARY FUND. Prard^ffijtc™- 1. There shall be a board of literature in this State, de- ed' and°inco'?po- nominated and called by the name of " The President and Di- rated. rectors of the Literary Fund of North Carolina ; " and by that name they are incorporated into a body politic and corporate. 2. The governor, in virtue of his office, shall be president of the board; and there shall be three other members thereof biennially appointed by the governor, with the advice of the council of State ; but in case of a vacancy, it shall be filled by the other members. The board may appoint a secretary to record their proceedings. The members shall receive three tot^t ^Tr '1"'^ dollars each per day and their travelling expenses, for the time 09. "' they may be employed in the service, and the secretary shall receive three dollars for each day during their actual session ; to be paid out of the literary fund. 3. The following property and funds shall be vested in the said corporation and their successors, in trust, as a public fund for education, and the establishment and support of common ^' 67,''s.'^3,' 4.— schools, namely : All shares of stock owned bv the State in iS42,'c.36,s.2; the bank of the State of North Carolina, and in the bank of 1850, c. 90. Cape Fear; all the shares of stock owned by the State in the Wilmington and Raleigh Railroad Company, and in the Wil- mington and Manchester Railroad Company, and all the profits and dividends arising therefrom ; all the swamp lands of the State, not heretofore duly entered and granted to individuals, and all the swamp lands that now belong, or may hereafter come to the State ; all the dividends arising from stock owned by the State in the Cape Fear Navigation Company, the Roan- oke Navigation Company, and the Clubfoot and Harlow's Creek Canal Company; the taxes imposed on licenses to retailers of wines, cordials, or spirituous liquors, and auctioneers; all moneys paid to the State for entries of vacant land ; all the bonds due and owing to the president and directors of the literary fund by the Wilmington and Raleigh Railroad Compa- ny, and by the Raleigh and Gaston Railroad Company; all the bonds due and owing to said president and directors by indi- viduals, by corporations, or by the State. And all the said moneys, stocks, bonds, and funds shall be deposited in the treasury of the State, and kept distinct and apart from all other public money, subject to the orders of the said president and How paid out. directors, and shall be paid out and delivered by the treasurer of the State, to the order of the board, certified and subscribed by the secretary, and countersigned by the jjresident. Treasurer to 4. The treasurer of the; State shall keep a fair and regular ofrTceipteX., account of all the receipts and disbursements of the literary Deposited in treasury. Chap. 6G.] literary fund, and comioN schools. 379 fund, and shall report the same to the General Assembly, at ""^ report to the same time when he makes his biennial account of the s."c. 66. ordinary revenue : and the board shall report to the General Assembly the manner in which the fund has been applied or vested, with such recommendations for the improvement of the same, as to them shall seem expedient. 5. The board shall be invested with full power to adopt all P"ty of board necessary ways and means ior causmg so much oi the swamp swamp lands lands to be surveyed, as they may think capable of being re- ^,"''y^5'f''v _ claimed; and after said lands, or any part of them, shall be k. s. e'er, s. 5. surveyed, to contract for the construction of canals, ditches, and other works, necessary for the purpose of reclaiming the same, upon such terms and conditions as may be prescribed by the corporation ; the contractor giving bond with security for the faithful performance of the agreement. 6. Whenever it shall be necessary to construct any of said '^^'''itten con- ■ T • 1 1 • I • ■ sent of owners works on the lands oi any individual proprietor, his written to vest title in consent, without any formal deed of conveyance of the lands j{"'y°c'67"s~6 necessary to the work and its future enjoyment, shall vest the title thereof in the corporation forever; and when any infant, or person non compos mentis, or feme covert, shall be owner thereof, his guardian shall be authorized to give such consent; and the feme covert and her husband may do so, without any private examination ; and the consent so given shall be valid to all intents and purposes. 7. Whenever the consent of the proprietor shall be withheld, ^^^'^ owners the corporation or their agents may enter on the lands, and lay corporation to oft' so much as may be necessary to be used in said work, the proceed.— K. S c 67 s 7 value of which shall be assessed to the proprietor according to law; and, upon the payment thereof, the title shall be vested in the corporation forever. Provided, that, in the assessment of valuation, the benefit that will accrue to the proprietor by reason of the improvement, may be likewise reckoned and set off against the damages. 8. When there are lands owned by individuals, which can Lands of per-. be reclaimed by reason of the canals, ditches, or other works of bv"c!inais''&c. the corporation, the same shall be assessed to contribute an to pay a pro- equitable proportion of the costs of said works ; which assess- pgns^'L^jj'^s" ment shall be made by the board, or a board of commissioners c. 67, s. 8. appointed by them ; and the same shall be charged on the lands. Provided, however, that the corporation, by contract with individual proprietors, may agree upon the assessment, and accept payment thereof in labor or money. 9. The said board may appoint an engineer and sra'veyor. Board mayap- and other servants, to plan the works; they may enact all iJe",'.' s,"rvevl)^r necessary rules and regulations for surveying and reclaiming &<-.—R. S.'c. the swamp lands; for assessing the lands of individuals which ''''^•^• may be improved by the works, and for collecting assessments ; and the assessments shall be published weekly for five weeks in one of the newspapers published in Raleigh, and also filed in the office of the clerk of the superior court of the county 380 LITERARY FUND, AND COMMON SCHOOLS. [ChaP. 66. wherein the lands assessed are situate. If no objections are filed at the court next after such advertisement, the assess- ments shall be confirmed by the court, and the lands adjudged liable for the amount, and execution may be issued for the sale thereof to satisfy the same, on motion to the court for that purpose ; and if any reasons be shown against the assessments, they shall be heard and determined by the court, and the assessments shall be increased or diminished as the court shall adjudge. Mayentemp- 10. The corporation, and their officers or agents, shall have for^urvey'ing, a right to enter upon the lands of all persons whomsoever, for &c. the purpose of surveying; and all the grants and deeds for swamp lands, heretofore made, shall be proved and registered in the county where the lands are situate, within twelve Titles to months; and every such grant or deed, not being so registered nof regSed, within the time aforesaid, shall be utterly void and of no effect, vested in cor- and the title of the proprietor in said lands shall revert to the Kov\'°o"-R. S. State. Provided, however, that the provisions of tills section, c. 67, s. 10.— relating to the registration of grants and deeds, shall be appli- 1850, c. 102, 6. ^^j^jg to the swamp lands only which have been surveyed or taken possession of by, or are vested in the president and directors of the literary fund of North Carolina, or their agents. May sell re- n 'Yhe corporation may sell and convey any part of claimed lands. ., , , , . i i i . i c ii i ^ ■ xu i. Proceeds of the lands, which may be reclaimed, for the best price that can and entry- ^jg obtained, and the proceeds, as also money received on "meprincipai. entries of vacant land, shall become a part of the principal of ""?; ^■,1/7' the literary fund : but they shall not sell any canal by them f. 11.— 1844, c. ,.ijxi-ii E6, s. 1. constructed under this chapter. Shall expend 12. The corporation shall not expend any part of the recS^iands moneys, stocks, or property herein vested in them, for the pur- uuless, &o. ' pose of reclaiming the said lands, but by direction of the Gen- eral Assembly; and the money received on entries of vacant land shall also be added to the principal of the fund. May employ 13. The board may employ counsel learned in the law, to counsel, and aid and assist them in the investigation and prosecution of suite^™""^* their title to any of their swamp lands ; and they may compro- mise upon such terms as to them shall seem reasonable and just, for the title, so as to secure to the corporation an inde- feasible right in said lands. May buy, or 14. Whenever, in the process of draining, it may be neces- cxc'iiange g^ry, in order to prevent a sacrifice of the interests of the State, "^ *' to purchase small tracts owned by individuals, the board may buy them, or exchange for them some other portions of the swamp lands ; and the lands thus acquired shall be held by them as other swamp lands. Turnpike from 15. The board shall contract, upon such terms and condi- Piymouthto tions as ihcy may think proper, for the construction of a turn- &cl!i'is4™c. pike-road from Plymouth, in Washington county, to some 88, B.];i848, point ou or near Pungo river, in Beaufort county, the more L58,' s. 1, 2,' 3 1 effectually to bring into market the public lands in the coun- 1852, Res. ties of Hydc and Washington. Provided, however, that the Chap. 6G.] literary fund, and common scnooLa. 381 board may appoint three commissioners, who, after being duly sworn to perform the duties assigned them with their best skill and ability and without partiality, shall have full power to carry into execution the provisions of this section, as etlectu- ally as the board may do it. And the commissioners thus appointed shall signify to the board their intention of serving, within ten days after being informed of their appointment. 16. For the purpose of making said road, the board may Amount appro- dispose of five thousand dollars' worth of the swamp lands, P"^ if not already done, and appropriate therefor the proceeds, together with the sum of six thousand dollars directed hereto- fore to be advanced out of the money belonging to the board of literature. And the board or the commissioners shall take CnntrMtorto bond from the contractor, with good security, in double the S'^*^ "^^ • amount of the contract, conditioned for its due and faithiul performance. And if the board or commissioners cannot agree "I'^J^-jf^-JJ^^y with the owners of land over which the road will pass, or for foi- road.— 1848, land whereon to erect houses for the use of the hands em- c. 8, s. 2,3, &c. ployed, or for earth for the use of the road ; or if the owner be a feme covert, under age, non compos, or out of the State, then, on application to two justices of the peace of the county wherein the lands lie, they shall issue their \%Tit to the sheritt of the county, commanding him to summon, within twenty days, a jury of eighteen disinterested and reputable freeholders, twelve of whom, after meeting on the premises, being duly drawn and sworn by the sheriiT to act impartially, shall lay otf and value the land required for the construction of said road, and the damages the owners will sustain by reason of the same : and the'inquisition shall be returned, under their hands, into the next court of pleas and quarter-sessions of the county, and, upon paying the amounts assessed to the owner of the land or his guardian, or into the office of the clerk of the court, they, or the contractor under them, may enter upon the land laid off and use it, and construct the road thereon ; and the road shall be held, deemed, and used as a public highway. 17. Whenever a canal shall be opened from Waccamaw ^™^?butT river to Little river, near where the latter empties into the lands for a ocean, and it shaU have been clearly ascertained that any ^(,'^^^(™™.tg valuable portion of the said swamp lands have been drained Little river.— by the said canal, and have been made more valuable thereby, ^^■^^' "■ ^^■ the board may allow to the individuals opening the canal, such of the public lands thus drained, and convey the same by deed, as the board may consider just and reasonable. 18. The board shall inquire into the practicability and ex- ^^f^l^J^^"'' pediency of draining certain lands in Carteret county, known Open Ground as the Open Ground Prairie ; and, should they deem it ad- iv.wie.-i850, vantageous to do so, may commence the draining thereof ; and for that purpose, five thousand dollars are appropriated from the literary fund. 19. Any person who may at any time have obtained a Fwfeih.res rf grant from the State for any swamp lands which have been 382 LITERARY FUND, AND COMMON SCHOOLS. [ChaP. 66. Agent of swamp lands appointed. — 1854, c. 48. His duties. paTtlx-iM" ^"'■^''^yed or taken possession of by the president and di- C.36. '■ "' rectors of the literary fund of North Carolina, or their agents, and who, or his heirs or assigns, shall not iiave regularly listed the same for taxation, and paid the taxes due thereon to the persons entitled to receive the same, such grantee, and his heirs or assigns, shall forfeit and lose all right, title, and interest in the said swamp lands, and the same shall ipso facto revert to the State, and be vested in the said corporation upon the same trusts as they hold other swamp lands; unless such per- son, his heirs or assigns shall have paid to the sheriff of the county in which said lands lie, prior to the twenty-first day of January, one thousand eight hundred and forty-four, all the arrearages of taxes due on said lands, with interest thereon, from the time the taxes ought to have been paid. 20. The president and directors of the literary fund of North Carolina may annually appoint an agent to superintend and supervise all the swamp lands belonging to the literary fund. 21. The agent shall devote his entire attention to the busi- ness ; abandon all prior engagements that may conflict with the interest of the board ; aid and assist counsel in the prep- aration and trial of all suits that may be directed by the board ; collect information as to the location and value of all said lands ; survey or have surveyed such tracts of said lands, or such other lands necessary to ascertain the location of lands belonging to the board, as he may deem necessary, under the direction of the board. He shall make reports from time to time to the board, of all the information he obtains, with such suggestions as he may deem proper ; and shaU prepare a state- rnent of each tract of land owned by the board, and its loca- tion, quantity, as well as ascertained and probable value, dis- tinguishing between those tracts the title to which is doubtful, or good; and this statement shall be recorded by him in a book to be kept by the board, and in a manner, by index or otherwise, easy for reference. M!v? be remo- 22. The agent may be removed by the board at any time, and another appointed to supply the vacancy, the agent re- moved being paid a pro rata compensation. The agency may be continued in the discretion of the board. The compensa- componsation tj^^ ^f ^^e agent shall not exceed one thousand dollars ; and, besides his salary, he shall receive no other compensation for what he is required to do or have done as aforesaid, except that the necessary incidental expenses of surveys required as aforesaid, (not including surveyor's fees,) shall be paid by the board. 23. The president and directors of the literary fund shall have full power and authority to agree with any person to t^"erec"overy- P™''*'''"*^*^ ^^cir claim to any swamp lands in any county or - - - ■ counties, or to survey and identify their lands in such counties, and allow to such person a share of any such land, as a com- pensation for his services. Board may procure others to prosecute Chap. 66.] liter.iry fund, and common scnooLS. 383 24. In all controversies and suits for any of the swamp Presumption lands, to which the said corporation or their assigns shall be of lifry b.mrd, a party, the title to the said lands shall be taken and deemed or thdr luis^^iis. to be in the corporation or their assigns, until the other party 53, ' °" ' shall show that he hath a good and valid title to the said lands in himself. 25. No statute of limitation shall affect the title or bar the BoarO^barred action of the said corporation, or their assigns, unless the same w^ieirstaTe L would protect the person holding and claiming adversely -18*2, c. so, against the State. II. COMMON SCHOOLS. 26. The net annual income of the literary fund shall be J,';^^^",^'^'^";;, annually distributed among the several counties of the State, distributed.— in the ratio of their federal population, to be ascertained by js^o-^^;^^^^^- \' the census ne.vt preceding such distribution. 27. There shall be appointed a superintendent of common Superintendent schools for the State, to be chosen by the General Assembly, co'nfmon' "'' and to hold his otiice two years from the time of his election, schools elected and untilhis successor is duly appointed. The courts of pleas ^ ^^'° ^'' and quarter-sessions of the several counties, (a majority of the justices being present,) at the term held next after the last day of December in each year, shall appoint not more than ten, nor less than five superintendents of common schools !^pp„^°^"d by for their county, whose term of office shall begin on the third co.courts.— Monday of April succeeding their appointment, and continue Ig^gj^'g?; for one year, and until others have been appointed and entered upon their office. 28. The superintendents shall meet on the third Monday in Chairman for April as aforesaid, and elect one of their number chairman. i'^enJentr'^" 29. The chairman of the board of superintendents, before C'l;'"™'-!" to he enters upon the duties of his office, shall give bond with ^'"^ good security, payable to the State of North Carolina, in such sum as the board may deem adequate, conditioned for the faithful application of the funds that may come to his hands, and the discharge of all his duties; which bond shall be filed with the clerk of the county court ; and the chairman shall be allowed to retain not exceeding two and one half per ^^j^ ^°™J|"f " centum of the moneys which shall pass through his hands, 36. ' as a compensation for his services. 80. The clerk of the county court shall be, ex officio, clerk Clerk ofco. of the board of superintendents, and shall record in a book ^fboVrdo'f "^su- to be kept for that purpose, all its proceedings, and such other perintendcuts, papers touching the subject of common schools as the board nYsduty. may direct; and shall safely keep all papers which may be Notices issued •' . . 1 • . 1 1 ii 1 1 TT 1 II • J- ii bv him, served committed to his custody by the board. He shall issue to the ,,y si,cntr.— sheritr notices of the appointments of superintendents and imi, c. 3i3. school committees, which the sheriff shall deliver. 31. The share of the literary fund to which each county ^';j'j;;J.P-'"'^^'°^^ may be entitled, shall be due and payable on or before the and how. first Monday of October in every year ; and shall be paid to 384 LITERARY FUND, AND COMMON SCHOOLS. [CnAr. 6G. the chairman of the board of superintendents, or his lawful attorney, upon tlie warrant of the comptroller. T:ix to be lai.i 32. The court of pleas and quarter-sessions of every county, for scbool" pur- a majority of the justices being present, sliall levy a tax in roses. the same manner that other county taxes are now levied, which shall not be less than one half of tiie estimated amount to be received by said county for that year from the literary Colieeteaby fund; and the sheriff shall collect and pay over the same to sheriff. ij^g chairman of the board, on tlic day of their first meeting ; and ills bond, given to secure the payment of county taxes, shiill contain a condition for the faitiiful collection and pay- ment of the school taxes ; and for a breach of tlie condition, the chairman shall have the same remedies against him and his sureties, as are given to the county trustee for enforcing Pfiymentby the payment of ordinary county taxes ;' except that his riglit forceJ.— isii, of action shall arise on the first Thursday of January in every c. 30, s. c. ' year, and tlie penalty on tlie sheriff shall go to the use of com- mon scliools in his county. rortaxeTfor ^'^' ^° couiity court shall tax any free person of color for solioois, &c.— the support and maintenance of common schools; and no 1844. person descended from negro ancestors to tiie fourth genera- tion inclusive, shall be taught in said schools, ttf'ts"! uroff ^^' '^^^^ board of superintendents may lay o(f in their coun- and recorded.- ti'^s school districts, (and number the same,) of such form and 1S44. size for one school, as they may think most convenient for the inhabitants of the county, and may alter the boundaries of the same, causing said boundaries and such alterations to be recorded by their clerk. School com- 35. The free white men of the several school districts, enti- iTv voters'of'^'' ^^^'l ^° ^°t^ ^^i' members of the house of commons, on the first members of Saturday in April in every year, shall vote by ballot for three house of com. men, to be styled "the school committee," Avhose term shall commence on tlie first Monday in May following, and con- tinue for one year, and until others are chosen ; said election shall be held at such convenient place in the school district as the board may designate ; and the three persons having the highest number of votes shall be declared elected " the school committee ; " and the board may fill any vacancy which may occur in the committee by death, removal, or other cause. Election, The chairman of the board shall give notice in writing, at held" ('!•"' ''"" ^^^^^'^ ""^ '"""^ public places in each district of the electioii, at AjipLui' irom '^ast tell days before the same ; and the board shall appoint ro''inl''M™"r-'" *^'^" freeholders of the district to conduct the election. The temloii"".— """ said freeholders shall give to the board, whose term of service 1850' cts''^"'"'^'"'^'"*^'"" on the third Monday of April thereafter, on the ■'''^' ■ day of their first meeting, a certilicate under their hands, of the number of votes received by each person ; and the board shall declare the three persons receiving the highest number of votes, the school committee. Providrf/, neverl/ic/rss, that whenever the districts fail to make an election, the board shall . appoint the school committee, who shall contiinie in ollice Chap. 66.] literary fund, and common schools. 385 until others are chosen ; and whenever any of the citizens may consider themselves aggrieved by the committee, or any one of the committee-men of their district, an appeal may be made to the board of superintendents, who shall hear and de- cide on the merits of the complaint, and remove any commit- tee man who, in their opinion, has violated his duty. 36. Each committee of the several school districts shall be School com- a body corporate, by the name and style of " The School corporate. ^ Committee of district, number , of the county of ," I'' !'°'?'l."i^44 as the case may be ; and in that name shall be capable of purchasing and holding real and personal estate, and of sell- ing and transferring the same, for school purposes ; and pros- ecuting and defending all suits for and against the corpora- tion. 37. The school committee shall designate, and purchase or Sites forschool- lease, or receive by donation, a suitable site for a school-house cured'by™om- as near the central part of the district as may be convenient ; mittee. shall hire, purchase, build, or receive by donation, a school- house of such form and dimensions as they may deem suit- able ; and whenever they are unable thus to obtain such site, they shall report to the succeeding county court, with the rea- sons, why they have not procured the same ; and the county f^o"' •■'"'i con- court thereupon shall appoint three disinterested freeholders, si"tes. — iS44, who shall lay off not more than two acres, and not less than '^^ 3®-^- ii; • • • 1852 c 19 one acre, as a site for a school-house in such district, and con- "' demn the same for the use aforesaid, and assess the value thereof, which assessed value shall be paid by the school com- mittee to the owner of the land so condemned, or into the office of the county court clerk, for the benefit of such owner ; and the land condemned and paid for, shall be vested in the school committee and their successors. Provided, hoivever, that the freeholders aforesaid shall not condemn any land improved by buildings, culture, or otherwise. And provided, further, that if, after the purchase or condemnation of land for school purposes, the school committee see fit to remove the school, then the original owner of the land, or his vendee, shall have the right to take the land at the original price, with the privilege to the committee of removing the building or other improvements. 38. The school committees shall, in one month after their Committee to term of office commences, report in writing to the chairman ono^month."— of the board of superintendents, the number and names ol isii- the white children in their districts, of six and under twenty- one years of age ; and on failure so to do shall each forfeit and pay five dollars, to be recovered by warrant before any justice of the peace, in the name of the chairman of the county superintendents, to be appropriated to the use of the school disti-ict in which such failure shall occur. 39. The moneys received from the literary fund and from u,"d'^equaliy" county taxes, shall be distributed equally among the school among dis- districts. '"'-''«• 33 386 LITERARY F0ND, AND COMilON SCHOOLS. [ChAP. 66. Notice given of 40. The chairman shall give notice, by written publication amt ueeac . ^^ ^y^^ court house door of his county, of the amount due each school district, soon after the money is received. Whattanghtin 41. Any branch of English education may be taught in scioos, &o. g^jj schools; and all white persons over tlie age of six years shall be permitted to attend the school of their district, as When children scholars, and receive insti'uctions. Provided, that the cliil- sciioois out of dren in any one district, may by the consent of two superin- theiraistiict.— tendcnts or committee, attend the schools in any adjoining 1844, c. 36. J. , . , ' J J O district. Com. of exam- 42. The board of superintendents shall annually appoint a pointed by" su- Committee of examination, of not more than three persons, perintendent. (of whom the chairman of the board shall be one,) who shall examine into the qualifications, both mental and moral, of all such as may apply for employment as teachers ; and shall be When con- convened by the chairman at least three times during the year, ""'^ ■ at some central point in the county ; of the times and places of meeting, the committee or chairman shall post a notice at — 1846°'^ "T"^''- ^^^ *^"°'' °^ *'^*^ court house. The committee shall continue in 1852, c.'is. ' office until their successors are appointed. Teacher to ob- 43. No person shall be employed as a teacher, unless he of'qua'^iific'at'ion! obtain from a majority of the committee of examination of the county in which he seeks employment, a certificate of his Certificategood good moral character, and sufficient mental quaUfications : and I646"\b62.'^'~ "o certificate shall be good for a longer term than one year from the date thereof. Schooicommit- 44. The school committee shall contract with a suitable tl.acher'''°^ teacher for their district, for such time as the funds of the dis- His duty, and trict wiU allow ; and at the end of the term of his employ- owpai . nient, he shall render to the committee the number and names of the children who have gone to his school, specifying the number of days each one went, and the studies taught; and, on his rendering such statement, the committee shall pay him Comniittee- ^jy giving him an order ou the chairman : and no committee- man not to be ./ o o employed. man shall be a teacher. Chairman not 45. The chairman of the board shall in no case pay any unfess ccom- ^'^^^^ drawn on him in favor of a teacher, unless the same pniiied with re- shall be accompanied with a report from the school commit- port of school ^gg statins: the name of the teacher in the district, the length 184G, c. 106; of time for which the school may have been kept during the 1852,0.18. current year, and the several branches taught ; and the chair- man shall not pay such draft, unless the teacher exhibit a regular certificate of mental and moral qualifications from a majority of the committee of examination, dated within one year of that time. Com. not to 46. No committee shall receive into their hands any of the funds; may funds set apart for common schools ; but, whenever it shall reckon expense becomc necessary for them to incur any expense in the pur- anddrawon , r i i / ^i x- c i i i ..u chairman for chasc of land lor tlic ercction of a school-house, or other purcimso^f necessary purpose, the committee may state an account of 1844, c. 36. the expense, and draw on the chairman for the same ; which Chap. 66.] literary fuxd, and common schools. 387 account shall accompany the draft, and shall be paid by the chairman, provided the school district shall have in his hands a sum sutficient to pay the same. 47. The school committee shall visit the sfhools from time To visit to time, and, generally, perform all such duties as they may jo'|°°',ycJ^"o deem necessary to their successful operation ; and they may continue unite with individuals, or other districts, for the purpose of i844°c.' i^. raising a sum sufficient to carry on their schools for the long- est time. 48. The board of superintendents may make such other Bom-d may regulations relating to their schools, not inconsistent with the "e^^rutrui''e3 provisions of this chapter and the laws of the land, as they — isw. may deem necessary to their usefulness. 49. Tlie chairman of the board of superintendents shall chairman to keep a true and just account of all moneys received and ex- ^ n^ouevrre- pended by him during the time of his service, showing when ceivea and paid and of whom received, and for what, and to whom paid, and °"'" the balance remaining on hand; and shall lay the same before Examined hv the committee of finance of his county ; and if there is no Tdel'^oTcT' committee of finance, then before the clerk of the county court, court, together with the vouchers in support of the charges therein made, on or before the first Monday in September in each year ; which account, the committee of finance, or the clerk of the county court, (as the case may be,) shall carefully examine, and if found correct, shall certify the same to be cor- rect; if done by the clerk, he shall certify under his hand and the seal of his office ; and he shall annually, on or before the Shall annually third Monday of October, report in writing to the superintend- 'uperLtendent' ent of common schools for the State, at Raleigh, a copy of &o. the above account, together with the number of children in his county ; the number who may have been taught in the schools of his county the preceding year ; for what time the schools have been kept up in the several districts ; the names of the committee of examination ; the number of cer- tificates issued by the committee of examination during the year preceding, designating in separate columns the number of female teachers, and the number of male teachers ; with such other facts and suggestions as he may deem useful. And '^"P'''^ "^ '"'^ he shall make two copies of said report, one of which he shall S pos'^ed*'!fp ' file with the clerk of the board, to be recorded in the book in ■■" ™"''' '"'"*^- which are kept all the proceedings of the board ; and the other is52',*c.'iV' he shall put up for public inspection in some conspicuous place in the court house of his county. 50. If in settling such accounts, any balance shall be found Shall pay over remaining in the hands of the chairman, the same shall im- ecssoT: in case mediately be paid by liim to his successor in office; and if of default, imw any moneys in his hands, whether reported or not, be improp- uw' c.^^'i" erly detained, his successor luay, at any time and in any court of his county, recover the same with interest in a summary manner, against the defaulting chairman and his sureties, or any of them, in the same manner and with the same penalty 388 LITERARY FUND, AND COMMON SCHOOLS. [ChAP. 66. as prescribed in case of judgment against the sheriff at the instance of the county trustee, by giving five days notice to the persons against whom judgment is moved. Liable to 12 per 51. If the chairman shall fail to pay on demand any draft on"draftrm?-' which he ought *to pay, the same may be recovered against paid, &o. him, in the name of the payee or his assignee, with twelve per centum damages, besides interest, for its detention. Misapplicatioa 52. If the board of superintendents, or any member thereof, of school fund, j^ jj jnisappiv any of the school funds, the person offending, amisdemeauor. . ' ^ • r i n i i i -ix f • j „_ or assentuig thereto, shall be deemed guilty of a misdemeanor. Penalty for 53. If any person, having accepted the appointment of su- perintendent^"" perintcndent or committee-man, or any clerk of the county comm!and ' court, shall refuse or neglect to perform the duties required of clerks. j^-,-^ |3y ^j-jjg chapter, he shall forfeit and pay fifty dollars, to be County solicit- applied as other school moneys ; and the county solicitor shall or to prosecute. pj.osecute suit for the recovery thereof. State superin- 54. The superintendent of common schools for the State tendent, duties gj^^jj guperintend the operations of the system of common schools, and see that the laws in relation thereto are enforced; To see that shall call on the chairmen of the several boards of county school laws are superintendents, who fail to make returns to him according money'diliy to the provisions of this chapter ; shall see that moneys dis- appiied. tributed for the purposes of education are not misapplied ; ^edfaiidde- and that the proper actions provided by law are brought liver lectures, against all the officers and agents of the system who are liable — 1852, c. 18. ^Q ^j^g gJ^fJ^g_ ^^^^ the superintendent, at such places as he may deem proper, and as often as possible, shall deliver public lectures on the subject of education, and endeavor to enlist the feelings of the people in the cause. To attend 55. The superintendent, when notified, shall attend the litera'-^board^ meetings of the board of literature as long as it shall direct ; His^ay.'^'^" ' and for such attendance shall have the same compensation as is allowed to members of the board. Treasurer to 56. The treasurer of the State shall furnish an annual state- furnish him ^ ^ ^l^g superintendent, of the sums disbursed from the yearly statem't „,'■ i ,. i^-xi fi.i of money paid literary fund to the several counties, and ot the names oi tlie to counties. persons receiving the same. Supcrintend'nt 57. The superintendent shall annually issue to the e.xamin- insmlSionf '^ ing committee of each county, a circular letter of instructions and forms for and suggestions as to the qualifications of teachers, and a issTc'Ts recommendation of the school books proper to be used; and ' ' ' he shall also have prepared and send to the chairmen of the boards of county superintendents, printed forms with proper blanks, upon which to make their returns to him ; all which returns, when received, he shall send to the office of the secre- tary of State, to be filed by him. To make 58. The superintendent, on or before the first Monday in to""'''crno7' January in every year, shall make a written report to the gov- ernor, giving a detailed and condensed account of the manner in which he has performed his duties; of the operations of the system of common schools, together with such suggestions Chap. 66.] literary fund, and common schools. ,389 and recommendations as he may deem proper; with tables showing the number of white persons, six years old and under twenty-one, in each county in the State ; the number who have attended school during the year; the length of time the schools have been kept open, and the number of school dis- tricts in each county; the luimber of male and female teachers licensed in each county to teach common schools during the year, and the average salaries of teachers; of which report the governor shall cause one hundred and fifty copies to be printed Kepo'-ttobe in cheap pamphlet form; fifty whereof the governor shall re- ''""""'' ceive and distribute among the libraries of the State, Univer- sity, Davidson, Wake-Forest, Catawba, and Normal colleges, the public offices of the State, and such literary institutions, in or out of the State, as he shall deem proper: and one hundred shall be received and distributed by the superintendent, in such manner as will best promote the cause of common education in the State. 59. If the superintendent shall wilfully and habitually Penalty on neglect his duties, or shall use his official position for the pur- tm^dentX""' pose of propagating sectarian or political party doctrines, he "^giect of duty, shall be hable to be removed by the unanimous vote of the May be re- board of literature. Provided, that a written specification of '"'"'^'*- charges, with the names and address of those preferring them, shall be delivered to him thirty days before his trial, and he shall be allowed to adduce evidence and be heard in his defence. In all such cases, a record of the proceedings, and of the charges and answer, shall be made by the board of liter- ature, and be subject to the inspection of the General Assem- bly. And in case of his removal, death, or resignation, the Vacancy filled board of literature shall appoint another for the residue of the boart^-[852, unexpired term. c. 18. 60. The clerk shall receive a reasonable compensation for ^"°''™n<=et'' his services, to be allowed by the board of superintendents, sherift-paid out and both he and the sheriff shall be paid out of the school of school fund. fund. 61. If the chairman of the board of superintendents shall Penalty of fail to make a report to the superintendent for the State, as mat ft" tiling provided in section forty-nine, he shall pay five hundred dol- '« ™P.o"'"o , lars, to be recovered by the superintendent on motion in the '"P*=™"'"'^''^'- superior court of Wake county, in like manner as in case of clerks failing to make returns to the comptroller; and the cer- tificate of the superintendent shall be jJrimd facie evidence of the default. Sect. 19. 12 Ire. 194. 33* 390 MARRIAGE. [Chap. 68. CHAPTER 67 Pennlty, and liability for dam^iges, for not killing a dog bitten by a inad dog. — E. S. c. 70. MAD DOGS. Penalty, and liability for damages, for not killing a dog bitten by a mad dog. 1. Whenever the owner of any dog .shall know, or have good reason to believe, that his dog, or any dog belonging to his slave or other person tinder his control, has been bitten by a mad dog, and shall neglect or refuse immediately to kill the same, he shall forfeit and pay the sum of fifty dollars to him who will sue therefor; and the offender shall be further liable to pay all damages which may be sustained by any one in his property or person, by the bite of any dog, belonging as afore- said. Sect. 1. 10 Ire. 79. CHAPTER 68. MARRIAGE. Section 1. Rites of matrimony celebrated by min- isters of the gospel and justices. Fee. 2. Marriage, license for, issued by clerk of county court, upon bond, &o. 3. Banns of, published by ministers and readers, 4. Certificate of, to be returned to clerk, and recorded. 6. Penalty on minister, justice, or clerk for neglect of duty. To be sued for by county solicitor. 6. On ministers and clerks, for marry- ing, or issuing license, contrary to law. 7. Marriages between whites and colored persons, void. 8. Penalty for marrying whites to Indian or colored persons. Eites of matri- mony cele- brated by min- isters and jits- tices. Fee.— K. S. c. 71, 8. 1. Section 9. JIarriagevoid, between nearer kindred than first cousins. 10. Estates of females under fifteen, mar- rying without consent, secured for her and issue. 11. Duty of attoi-ney-general, &c., to file a bill, and have trustee appointed of her estate. Trustee to give bond. Compensation of Persons having her estate, to hold it for trustee. Fees of attorney-general and solicitor. 12. How to obtain license when parents or guardian reside out of the State. 13. Pen.alty on clerks, ministers, and jus- tices for issuing license and marrj-- ing females under fifteen years. 14. Females under fourteen and males under sixteen, incapable of marry- ing. 1. Ordained ministers of the gospel of every denomination, and iusticcs of the peace, may solemnize the rites of matri- mony, according to the rites and ceremonies of their respective churches, and the rules in this chapter prescribed; and the ministers may take two dollars for every couple by them mar- ried. Chap. 68.] marriage. 391 2. The clerk of the county court of the county in which the Mnrriage li- feme resides, shall issue a license for the marriage of any per- ck'rk oi^ouJiy sons not in this chapter prohibited, to any person applying for court, upon the same, directed to any ordained minister or justice of the n'^tli^' ^' °' peace ; the clerk first taking bond with sulficient security in the sum of one thousand dollars, payable to the State of North Carolina, conditioned that there is no lawful cause to obstruct the marriage ; which bond shall be filed in office, and may be put in suit and recovered by the person aggrieved by the issu- ing of the license, or by the marriage. 3. Every ordained minister of the gospel, or person appointed .?''""? °''' P'?''- by any church as a reader, may publish the banns of matrimony istersari^ read- between any two persons requesting the same, on three several yf '"g- ^- °- Sundays in the congregation, immediately after or during '^' divine worship ; and shall give a certificate of such publication when demanded, directed to any ordained minister or justice of the peace, and may take for such service forty cents. Pw- vided, that the people called Quakers, may retain their peculiar rules and privileges in solemnizing the rites of matrimony in their own church. 4. Every justice of the peace or minister of the gospel, who Certificate of, may solemnize the rites of matrimony, shall, within three fo de,^" months thereafter, transmit to the clerk of the county court of rooorded.- the county wherein such marriage may have been celebrated, ^'*''"' ''■ ^*'''^' a certificate in writing of the same, indorsed on the license or otherwise ; wiiich certificate properly indorsed, the clerk shall record in a book kept for the purpose, within one month after its reception ; and such record shall be deemed primd facie evidence of the marriage. 5. Any minister, justice of the peace, or clerk of the county Penalty on court, neglecting to discharge the duties imposed by the pre- dceTordCTk ceding section, shall pay a penalty of twenty-five dollars in for neglect of each case, to be recovered on motion to the county court after sued VOTb'y five days' notice, by the county solicitor, whose duty it shall ''™"'>' ^o""- be to enforce the penalty ; one half whereof shall be applied to 84X2^°°' "' the use of the school fund, and the other half to the use of the poor of the county. 6. If any minister, or justice of the peace, shall knowingly 0" "'"'f*^" iz-vln +,^„^+K„,. ; i • J "^ . """■"'ti'j' and clerks, for join togetliei in matrimony any two persons, in any other way marrying, or or manner than by this chapter directed ; or if any clerk shall ■««"'»? '''^ense , knowingly issue any marriage license in any way or manner h°w.— K. s. c. other than by this chapter directed, the person so offending "' '• *' shall forfeit and pay for every such offence two hundred dollars'^; one half to the use of him who will sue for the same, and the other half to the use of the county wherein the offence is com- mitted ; and such person shall be likewise liable to be sued by the person grieved. 7. All marriages, since the eighth day of January, eighteen Ji:>rriages be- hundred and thirty-nine, and all marriages in future, between amUVec ne- ' a white person and a free negro, or free person of color, to the f^'f' '"Ji'-"" third generation, shall be void. ^^^*' '• ^*' 392 [Chap. 68. Penalty for g. No minister of tlie gospel or justice of the peace shall whitJs'toln- marry a white person with an Indian, negro, or free person of dians, or free color, to the third generation, knowing them to be so, upon "" "° ~^ pain of forfeiting and paying for every such offence one hun- dred dollars. 9. All marriages contracted after the twenty-seventh day of December, eighteen hundred and fifty-two, and all marriages in future, between persons nearer of kin than first cousins, shall be void. 10. When any person shall marry an infant female under the age of fifteen years, except in the case where her father may be living and shall have assented to the marriage in writing, neji^'oes. — R. S c. 71, s. 6. Marriages void, by reason of kindred. — 1S52, c. 75. Estates of fe- males under fifteen, marr; ing without cured"fOTher the person so oftending shall acquire no interest in any of the and issue.— R. property or estate of such female then owned and possessed by S. c. 71, s. 7. j^^^^ ^^ j^^ which she may then have any interest, vested or con- tingent: but the same shall be vested in and held by such trustee or trustees as the court of equity may appoint, who shall have full power to take all such estate into their posses- sion, and to sue for and recover the same in their own names as trustees ; and they shall hold such estate and property to, upon, and for the following uses and trusts, namely : to the sole and separate use of the female during the marriage, free from all control and dominion of her husband. And, upon the ter- mination of the marriage, if she shall be the survivor, the trus- tees shall convey the said estate and all the profits thereof unexpended to the said female, absolutely and free of all trust. But if she shall not be the survivor, they shall convey the said estate and profits to such children as she may leave surviving her, and to the issue of such children as may have died in her lifetime, leaving issue, the issue to stand in the place of their parent, and take such share as the parent would, if living. And in default of such children or issue, they shall convey the said estate and profits to such persons as, according to the nature of the estate, would have been her distributees or heirs at law, if she had died unmarried. And the said hus- band shall not be permitted to hold or use, sell or dispose of, any part of such estate ; and every sale or disposition made by him of such estate, shall be void ; nor shall he, in case he sur- vive his wife, be entitled to administration on her estate, or to any distributive share thereof, or to any right of curtesy therein. Duty of attor- n xt shall be the duty of the attorney-general and soUcitors, aaSiwrs within whose circuit such female may have resided previous to to file a bill, j^gr marriage, to file a bill in equity in the name of the State te"e'^ap7o1ntcd" against such husband and wife, and every person who may of her estate, jjj^yp j,, hand any of her estate, in which by the marriage the husband would or might, during the coverture, acquire any property, right, or interest, in order that a trustee may be ap- pointed to take charge of the property and estate; who shall Trustee to give „ive bond witli two or more good sureties in such sum as the compel" court shall deem proper, payable to the State of North Caro- lina, for the faithful performance of the trusts reposed in him, Chap. 69.] members of congress. 393 and for accounting for all the profits of the estate intrusted to him, and shall be allowed a reasonable compensation for his services, and may be removed for sufficient cause, and another or others appointed in his stead. And any person having Persons iiaving estate in his hands belonging to such feme shall hold the same, ll!;!',''?.*'!^'','° ,,, ,. c ti 1 ,.. rt naiti It lortrus- agamst the claim ot ail persons whatever, for the use of such tee. trustee as may be appointed. The attorney-general and so- L®j!!„enei-a7' licitors, for such services, shall be allowed reasonable fees, to fiiui miicitor. be paid out of the estate of ihefeme, or otherwise, as the court ~\ ^' "• '^'' may direct. 12. In all cases when a license is applied for to marry a Ijow to obtain female whose parents or guardian reside without the State, the parents ot**^" person applying shall produce to the clerk of the county court, guardian reside or any other person legally authorized to grant license to marry, s'^atel^'^R. g. c. a certificate in writing from under the hand of the parent or ^h s- 9- guardian of the said female, (as the case may be,) stating she has arrived to the full age of fifteen years, and if under that age that she has leave to marry; which certificate shall be filed in the clerk's office in the county where the license was obtained. 13. If any clerk, or other person, authorized to issue ficense Penalty on to marry, shall issue any license for the m.arriage of any female tirwlid ''us- under the age of fifteen years, the said female not being per- tices.'for issu- mitted in writing to marry, as in this chapter directed, and the mfrl-yi'irMe-"^ said clerk or other person knowing thereof; or if any minister males under or justice of the peace shall marry such female, with knowledge K'^'t'TrTT that she is not in writing permitted to marry ; or if any such lO- ' ' ' ' clerk or other person aforesaid shall issue any license, contrary to the true intent and meaning of the preceding section ; every such minister, justice of the peace, clerk, or other person, so offending, shall forfeit and pay one thousand dollars. 14. Females under the age of fourteen years, and males '^em:(\e^ under under the age of sixteen, shall be incapable of contracting Safes und«-'^ miarriage. sixteen, inca- . pable of mar- rying. Sect. 1. IT7;o authoiized to marry, 13 Ire. 2S9. What form necessary, 2 Ire. 346, 6 lb. 23. Who may lie married: not while and colored, 5 Ire. 201, 3 lb. 455; nor idiots, 6 Ire. 4S7, 2 Ire. Eq. i70; persons divorced, 5 Ire. 635; slaves, 2 D. & B. 177, 1 Jones, Eq. 35. //ow marriage proved, 1 Dev. 337. Declaration against minister, 5 Ii-e. 639. Sect. 10. 1 Ire. Eq. 232. CHAPTER 69. MEMBERS OF CONGRESS. Section 1. Senators in congress chosen by Gen- eral Assembly. 2. How commissioned. 3. Congressional districts allotted. Sectiox 4. Time and manner of conducting elec- tions. 5. Vacancies in representation, how filled. MEMBERS OF CONGRESS. [Chap. GO. Section 6. Returns of election, how nijide. 7. Sheriff to ascertain number of votes and mal;c two statements. 8. Places for comparing polls by return- ing officers. Certificate of election Section given by officers to person elected. Provision in ease of n tie vote. 9. Representatives commissioned by gov- ernor. 10. Pay of officer for comparing polls. 11. Voting more than once, penalty for. Senators in congress chos- en liy General Assembly. — R. S. c. 72, s. 1.— Const. U. S. art. 1, s. 3. How commis- sioned. — R. S. C. 72, s. 2. districts allot- ted.— R. S. c. 72, s. 3.— 1852. C. 21, s. 1.— Const. U. S. art. 1, s. 2. Time and man- ner of conduct- ing elections. — R. S. 0. 72, s. 4. Vacancies in representation, how filled.— K, S.c.72,s.! 1. WiiEXEVER a senator in the congress of the United States is to be chosen, the General Assembly, at such time during their session as they shall appoint, shall elect such senator vica voce, by a majority of the joint votes of both houses, under the in- spection of two members from each house. 2. The senator elect shall obtain a certificate of his elec- tion, signed by the speakers of the two houses, and shall be commissioned by the governor, under the seal of the State. 3. For the purpose of electing representatives in the Con- gress of the United States, the" State shall be divided into eight districts, as follows, namely : — The first district shall be composed of the counties of Currituck, Camden, Pasquotank, Perquimans, Gates, Chowan, Hertford, Northampton, Halifax, Martin, Bertie, Washington, and Tyrrell ; the second district, of the counties of Hyde, Beaufort, Pitt, Craven, Jones, Lenoir, Wayne, Greene, Edegcombe, Onslow, and Carteret; the third district, of the counties of New-Hanover, Brunswick, Colum- bus, Bladen, Sampson, Cumberland, Robeson, Duplin, and Eichmond ; the fourth district, of the counties of Wake, Franklin, Warren, Granville, Orange, Nash, and Johnston ; the fifth district, of the counties of Person, Caswell, Alamance, Chatham, Randolph, Guilford, Moore, and Montgomery; the si.xth district, of the counties of Stokes, Forsyth, Rockingham, Davidson, Davie, Yadkin, Sarry, Iredell, Alexander, and Ashe; the seventh district, of the counties of Catawba, Gaston, Lin- coln, Mecklenburg, Rowan, Cabarrus, Union, Anson, Stanly, and Cleaveland; the eighth district, of the counties of Wilkes, Watauga, Caldwell, Burke, Rutherford, McDowell, Hender- son, Buncombe, Yancy, Haywood, Macon, Cherokee, Jackson, and Madison ; each of which districts shall be entitled to elect one representative in the congress of the United States. 4. The election shall be held at the same places as arc pre- scribed for holding elections for members of the General Assembly, on the first Thursday in August immediately suc- ceeding the termination of each congress; and shall be con- ducted by the sheritFs, or by other persons ajjpointed therefor, in like manner as elections for members of the General As- sembly ; except that the inspectors of the election shall be sworn to act with justice and impartiality; and each voter shall give his suffrage only in the county wherein he resides. 5. If at any time, after the expiration of any Congress and before another election ; or if at any time after any election, '. there shall be a vacancy in the rejirescntation in congress, the governor shall issue a writ of election, and by proclamation Chap. 69.] members of congress. 395 shall require the voters to meet in their respective counties, at such time as may be appointed therein, and at the places established by law, then and there to vote for a representative in congress to fill the vacancy, and the election shall be con- ducted in like manner as regular elections. 6. The polls of election shall be ascertained by the inspec- Returns of elec- tors, or other persons holding the election, and the returns n™Je'.'^K. s. thereof shall be made to the sheriff, or other returning officer, c. 72, s. 6. in like manner, time, and place, and under the same penalties for omission, recoverable in like manner and for like uses, as in elections for members of the General Assembly. 7. The returning officer, upon receiving the returns, shall, at Sheriff to as- the court house, in the presence of a majority of such inspec- of'votes""™ii""^ tors as may have carried the polls, cast up the votes and make make two two correct statements of the number of suffrages given at |.|^s';"f"2^sT7. such election for each candidate ; one of which being duly certified by him, shall, with the poll books, be filed by the in- spectors in the office of the court of pleas and quarter-sessions of the county, and the other shall be retained by the sheriff or other returning oificer, with which he shall attend on the day and at the places mentioned in the next section. 8. The sheriffs, or other returning officers of the counties of P'«?«s 'o"' co™; each district, shall meet on the Thursday next after each elec- retuining offi- tion, at the following places in the several districts, for the S,'^''!'^^ , purpose of comparing the polls, namely : In the first district, at election given the court house in the county of Bertie ; in the second district, by officers to at the town of Newbern, in the county of Craven ; in the third district, at the court house in the county of Bladen ; in the fourth district, at Louisburg, in the county of Franklin; in the fifth district, at the town of Graham, in the county of Ala- mance ; in the sixth district, at the court house in the county of Yadkin ; in the seventh district, at the town of Charlotte, in the county of Mecklenburg ; and in the eighth district, at the town of Asheville, in the county of Buncombe. Provided al- ways, that if any accident may prevent any returning officer from meeting on the day aforesaid, the returns shall be re- ceived on the day following; and the returning officer, failing to attend as required at the time and place above mentioned, shall forfeit and pay one thousand dollars, to be recovered for the use of the State, in any court of law. And when the returning officers shall be convened, the poll for the several counties shall be examined and compared by them, in the presence of three justices of the peace, summoned by the re- turning officer of the county where they shall meet; and a certificate under the hands of said returning officers shall be given to the candidate, for whom the greatest number of votes shall have been given in said district. But if two or more Provision in candidates shall have an equal number of votes, the returning vote.— i!. s. c. officers shall determine which of them shall be the rcpresenta- "2. s. s.— 1862, five ; and if no decision is by them made, they shall determine •■''■• the same by drawing, in like manner as the grand-jury is drawn. 396 MILITIA. [Chap. 70. Eepresentn- tives commis- sioned by tiov. — R. S. c. 72, e. 9. Pay of return- ing officer for comparing polls.— R. S. c. 72, s. 10. Voting more than once, pen- alty for.— K. S. c. 72, s. 0. 9. Every person duly elected a representative, upon obtain- ing a certificate of his election, shall procure from the governor a commission, certifying his appointment as a representative of the State, whicli the governor shall issue on such certificate being produced. 10. Every sheriff or other returning officer holding such elec- tions, shall be allowed two dollars and a half for every thirty miles travelling to and returning from the place of comparing the polls in the district ; and the same sum for every day he shall necessarily attend for the purpose of comparing the polls, and also the amount of his ferriages; which shall be paid by the treasurer on affidavit of the returning officer. 11. If any person shall vote more than once in any such election, he shall forfeit and pay one hundred dollars, one half to him who will sue for the same, and the other half to the use of the county wherein the offence was committed. CHAPTER 70. MILITIA. Section I. Who to be enrolled, and how provided. Proviso, as to persons over thirty-five years of age. 2. Wliat persons exempted from duty. 3. Members of fire companies, also ; and persons of conscientious scruples. 4. Officers to enroll and make return of exempts. B. Free negroes not enrolled. 6. Persons enrolled to equip themselves. Forfeitures for neglect to equip. 7. How infantry to be divided. 8. Regiments, brigades, and divisions, how distinguished. 9. Officers of infantry, their grade and how appointed. Adjutant-general appointed. Governor may appoint foxir aids-de-camp. 10. Uniform of officers. II. Officers to hold commissions three years and equip within one. Pen- alty. Major-generals, and all field officers, how elected and commis- sioned. How to resign, and who notified of vacancies, and by whom. How officers of companies elected. 12. To give notice of their absence. 13. To deliver to their successors money or papers. 14. Rules of discipline. Adjutant-general Section to distribute McComb's tactics, and how. IB. Captains' districts, how laid off". Boundary lines in regiments of same county, how altered. 16. Regulations as to company musters. 17. Company courts-martial. How to pro- ceed. Appeal allowed. Execution from courts-martial ; how and to whom issued. Penalty on sheriff or constable for neglect. 18. Company musicians, how appointed; their privileges. 19. Road hands not to be ordered out OQ muster day. 20. Captains to make returns, when. 21. Regimental or battalion musters. Where held. Duty of colonel. I'en- alty for neglect of duty. 22. Penalty on officers failing to attend reviews or musters. 23. Commandants of regiments, &c., to give notice of reviews, &c. 24. Commissioned officers of regiments, &c., to exercise day before review. Penalty for failure. 2B. Penalties on officers and privates for misbehaving. 20. Persons on muster ground failing to do duty, arrested. Chap. 70.] 3^7 Section 27. Attending musters, exempt from ar- rest in civil cases. Not to pay tolls or ferriages. 28. Parents, &c., liable for fines. 29. Kegimeiital and battalion courts-mar- tial. Their power and duties. 30. Duty of pay-masters. 31. Officer's oatli on court-marti.al. 82. Proceedings against delinquents. 33. Courts-martial may adjourn. 34. Duties of officers as to fines. Penalty for default on captains. 35. Returns by commandants of regi- ments. 36. Duties of generals as to reviews. 37. Returns by brigadier and major-gen- erals. 38. Penalty on general officer, &c., failing to review or muster; or to mal^e re- turns, or be equipped. No officer to be deprived of his commission with- out trial. 39. Duty of adjutant-general. 40. In certain cases returns and orders sent through post-office. 41. Governor may remit fines and pen- alties. 42. Regiments of cavalrj', how formed, &c. 43. Troops of caviilry, when to muster, and how returns made. Who to command when mustering with in- fantry. 44. Field officers of cavalry to review .and make returns. 45. Cavalry coui'ts-martial to be held. 46. Fines of cavalry officers and privates, same as in infantry. 47. Cavalry fines, how appropriated. 43. Duties of adjutants of regiments. 49. Certain sections of this chapter to ap- ply to cavalry. 60. Commissions in cavalry. 51. Volunteer companies of artillery, &c., may be formed, 52. May choose their uniform. To be »m- der the commander of the regiment, and do duty, &o. 53. Regiments of volunteer companies may be formed. Field officers of, how chosen. 54. Captains, lieutenants, non-commis- sioned officers, how elected or ap- pointed. 55. Company to muster once in three months. May make rules for their government. 56. Officers of volunteer regiments to make returns. Section 67. Volunteers, not to return to infantry, but by permission, &o. Shall serve in infantry, till they equip. 58. Volunteer regiments to be reviewed. 59. Vacancies in field officers of, how filled. 60. Certain sections concerning infantry, to apply to artillery, &c. 61. General courts-martial, how appointed and held. 62. Officers of, how selected. 63. Bank of the officers. 64. Officers for, regularly detailed. 66. How detailed. 66. Courts-martial, how constituted. 67. Officers of, how to rank; to be sworn. 68. Witnesses, how summoned. 69. How sworn. 70. Rules for courts-martial. Penalty on officers, for not attending. 71. Duty of judge advocate. 72. Proceedings against officers arrested, refusing to attend. 73. Perjury before courts-martial. 74. For what conduct officer cashiered. 75. Detachments of militia for United States service. 76. Substitutes received. 77. Vacancies in detachments, under rank of field officers, how supplied. 78. A militia-man after one tour, exempt, &e. 79. Penalty for neglecting duty when or- dered out by civil authority. 80. Seven justices may call out militia in invasions or insurrections. 81. Duty of officer on such requisition. 82. Commanding officer called out to notify his superior. Superior to notify the governor. 83. Three justices may order out militia to suppress outlawed, or runaway slaves. 84. Pay of militia in service. 85. Punishment for not appearing on call, &c. 86. Punishment for desertion. 87. Field officers of volunteer regiments in service of United States, how and when elected. 88. Election, when and how conducted. 69. Certificate of election furnished field officers by captains. Returns, how made when regiments rendezvous at different places. 90. When there is a tie in elections, gov- ernor to select. 91. Volunteer companies, how incorpo- rated. 34 398 [Chap. 70. Proviso as to persons over thirty-five years of »ge.- iS4S, c. 58, ». 1,2. Section Section 92. Privates, by ten years' service in, ex- 91. Anns how procured, when brigadier- empt from further duty. general dead or absent. 93. Commissioned officers by eight. 95. Private acts in relation to militia, not repealed. Who to be en- 1. All free white men and white apprentices, citizens of ™U«d, andhow ^jjjg State, or of the United States residing in this State, who ^'.TtI^s. 1." are or shall beef the age of eighteen and under the age of forty-five years, shall, as soon as practicable, be severally and respectively enrolled in the militia of this State by the captain or commanding officer of the infantry company, within the bounds of whose district, (to be allotted him as hereinafter directed,) such citizen shall reside ; and at all times every cap- tain, or commanding officer of any company, shall enroll every such citizen, except as hereinafter exempted, and also those between the ages aforesaid and not exempt by law, who may • from time to time come to reside within the bounds of his dis- trict and remain therein thirty days ; and he shall without delay notify such citizen of the enrolment, by a proper non- commissioned officer of the company, by whom the notice may be proved. Provided, Iioicevcr, that no person so en- rolled shall be required to perform military service in times of peace by way of drill, mustering, training, or disciplinary exer- cise after he shall have attained to the age of thirty-five years, if he shalh appear before the court-martial of the regiment to which he belongs, and make oath that he has attained the said age, and shall obtain from the colonel commandant or presid- ing officer of said court-martial a certificate in writing which shall exempt him from the performance of military duty, ex- cept in times of war, insurrection, or invasion. Who exempted 2. The vice-president of the United States, the officers, |'»n^ ^'i>fy--^ judicial and executive, of the United States, the members of 1838, c.'so; ' both houses of congress and their respective officers ; the 1^"' "■ 3e, s. judoes of the supreme and superior courts of law, and justices S.9. '"■ ''of the peace, counsellors of State, the secretary, comptroller, treasurer, the governor's private secretary, attorney-general, solicitors, the clerks of the several courts of record, the State printer, high sheritls of the several counties, physicians and surgeons, ordained ministers of the gospel of every denomina- tion, all custom-house ofiicers, postmasters, and stage-drivers or mail carriers, employed in the care and conveyance of the mail to the post-oiiices of the United States, all ferrymen em- ployed on any ferry of a public road, jirovidcd the same shall not exceed one superintendent and one other to each ferry, all millers of public mills, provided that this exemption shall ex- tend, as to each mill, to one person only subject to do military duty, whose occupation and daily employment it is to attend and perform the duty of a public miller, all inspectors of produce, all branch and licensed pilots, all mariners actually employed in the sea service of the United States, or of any merchant, all officers and students of the university and all other semiiiaries of learning within the State, the lock keepers on the dismal Chap. 70.] militia. 399 swamp canal, wardens of the poor, superintendents of com- mon schools, members of the committee of examination of teachers of common schools, teachers and pupils of common schools wliile engaged as such, and patrollers, shall be ex- empted from military duty. Provided always, that nothing herein contained shall be so construed as to exempt any per- son from performing duty, in case of invasion or insurrection in the State. 3. The members of the several fire companies, so long as g|.^"'^,^^^^°''. they shall continue such, that may be established in the State, exemptea!""'* shall be exempted from all militia duty, except in time of war, invasion, or insurrection. The captain of every fire company, once a year, shall make a regular return to the colonel com- mandant of the regiment, by the fifteenth day of October, (under the penalties imposed on captains of militia companies for failure of making return,) in the limits of which the com- pany exists, of all persons belonging to said company liable to muster, and the colonel of the regiment shall include them in his regular annual returns to the general of the brigade and ad- jutant-general. Persons having scruples of conscience against Aisoptrsons bearing arms, who shall produce to the captains of their tious"grupios.- respective districts, certificates, signed by the clerks of their r. s.c."3,s.3. respective churches, that they are regular members thereof, and shall make oath or affirmation before a justice of the peace that they are, from religious scruples, averse to bearing arms, and shall also produce a certificate from such justice that such oath or affirmation has been dnly made, shall not be compelled to muster or perform military duty, except in cases of insurrec- tion or invasion, or pay any tax for exemption ; but they shall be subject to taxation in time of insurrection, invasion, or war, and also to furnish their quota of men or pay an equivalent. 4. The captains or commandants of companies shall enroll, officers to en- and keep enrolled, all within the limits of their respective dis- ^elura of"ex''-^ tricts, who are exempt from performing militia duty by law empts.— R. S. except in time of invasion or insurrection, and shall return the c-.'3,s. 4. number of exempts in their annual returns to the comman- dants of regiments, who shall make a like return of all ex- empts in their respective regiments in their annual returns to the brigadier and adjutant-generals, regulations for which an- nual reports are hereinafter prescribed. 5. No captain or other militia officer shall enroll any free Free neproes persons of color, except for musicians. 6. Every citizen enrolled and notified, as is directed in the Pei-sons on- first section of this chapter, shall, within six months thereafter, thcmsci^et.'"''' provide himself with a good musket, smooth bored gun or good rifle, shot pouch, and powder-horn, and shall appear so armed and accoutred, when called out to exercise or in actual service ; the commissioned officers shall severally be armed with a sword or hanger, or an espontoon ; and every citizen, so enrolled and providing himself with arms and accoutrements as herein directed, shall hold the same exempt from all suits, executions, or sales for debts, or for the payment of taxes ; and 400 [Chap. 70. Forfeitures for ne^Iectin!!^ to equip. — R. S. c. 73, s. 6. How infantry shall be divided.— E. S. c. 73, s. 7.— 1848, c. 58, s. 12. Kegiments, brigades, and divisions, how distinguished. if he shall fail to provide himself with arms and accoutrements, as herein directed, and if the commissioned otRcers of his company shall deem him in sufficient circumstances to equip himself, he shall forfeit and pay for want of a good, service- able musket, gun, or rifle, fifty cents. And all parents, guar- dians, and masters shall furnish those of the militia, who shall be under their care or command, with the arms and equip- ments above mentioned, under the like penalty for each neglect. Provided, such guardian shall have suflicient in his hands belonging to his ward to purchase said arms. If the company court-martial, after examination on oath, shall ad- judge any person enrolled to be incapable of providing him- self with arms and accoutrements, as here required, they shall make report thereof to the next regimental or battalion court- martial, as the case may be, who may, if it shall appear neces- sary, exempt such person from the fines here imposed, until such arms and accoutrements shall be provided and delivered to him by the court-martial, who shall take security for the safe-keeping of such arms and accoutrements to be returned when required. 7. The infantry shall be divided into divisions, brigades, regiments, battalions, and companies ; each division shall con- sist of at least two brigades ; each brigade of at least four regiments, each county forming at least one regiment ; each regiment, when convenient, shall consist of at least two bat- talions ; each battalion of five companies ; and each company of forty-five privates. 8. The following are declared to be the regiments, brigades, and divisions of the infantry, to be known and distinguished as here designated, namely : — No. divi- sions. Of what brig- ades composed. No. of brigades. Of what regiments composed. 1 1st, 18th. 1, ( 1, 2, 3, 4. ; 5, 6, 10, 9. 18, 2 4th, 14th. 4, I 32, 33, 34, 85, 41, 44. 14, : 42, 48, 51, 53, 54, 93, 98. 3 6th, 16th. 6, 45, 47, 48, 49, 55, 56. 16, : 37, 38, 50, 59. 4 7th, 11th. 7, 63, 64, 87, 88. 11, 60, 61, 62, 68, 69. 5 10th, 15th. 10, 70, 71, 76, 77, 78, 99, 100, 101, 15, 52, 79, 80, 81, 84, 89, 92, 102, 108, 109. 6 3d, 12th. 3, 24, 30, 31, 39. 12, 25, 26, 28, 40. 7 5th, 17th. 5, 13, 14, 15, 16, 20, 21. 17, 22, 23, 29, 35, 36. 8 2d, 13th. 2, 17, 18, 19, 27. 13, 7, 8,11,12. 9 8th, 9th. 8, 57, 58, 65, 66, 67, 91. 9, \ 46, 72, 73, 74, 75, 95, 96, 106, 107. 10 19th, 20th. 19, ] 86, 90, 103, 110, 111. 20, \ 82, 83, 97, 104, 105. Chap. 70.] 401 No. of How distinguished in ,. . I How distinguished in ;;"• P' Counties where there are '^"^ '■ j more tllan one Keg't. Counties. Counties wiiere there are Counties. Reg't. more tlian one Keg't. Currituck, 1 Anson, 53 Lower, Camden, " 54 Upper, Pasquotank, 3 Randolph, 55 West, Perquimans, 4 " 56 East, Cliowan, 5 Guilford, 57 West, Gates, 6 58 East, Tyrrell, 7 Caswell, 59 Washington, 8 Montgomery, 60 Bertie, 9 Stanly, 61 Hertford, 10 Cabarrus, 62 Hyde, 11 Kowan, 63 Beaufort, 12 Davie, 64 Martin, 13 Stokes, 65 Halifax, U Upper, Forsyth, 66 " 15 Lower, Rockingham, 67 Lower, Northampton, 16 " 91 lUppcr, Carteret, ■ 17 Mecklenburg, 68 jNorth, Craven, 18 69 South, Pitt, 19 Lincoln, 70 Edgecombe, 20 Upper, Gaston, 71 " 21 Lower, Surry, 72 North, Nash, 22 " 73 South, Warren, 23 Wilkes, 74 Lower, Onslow, 24 " 75 Upper, Jones, 2:> Rutherford, 76 South, Lenoir, 26 77 North, Greene, 27 " 78 Johnston, 28 Burke, 79 Morganton, Franklin, 29 " 80 Lower Creek, New-Hanover, 30 " 81 Pleasant Gardens, Duplin, 31 " 92 Toe River, Sampson, 32 Buncombe, 82 Caney River, Cumberland, 33 Lower, " 83 Asheville, " 34 Upper, " 84 South, [River, Wake, 35 East of Raleigh, 97 W. of French Broad " 36 West of Raleigh, Columbus, 85 Granville, 37 North, Havwood, 86 " 38 South, Da'vidson, 87 Lower, Brunswick, 39 88 Upper, Wayne, 40 Macon, 90 Bladen, 41 Union, 98 Robeson, 42 Lower, Catawba, 99 " 43 Upper, Clcaveland, 100 Upper, Moore, 44 " 101 Lower, Cliatham, 4:> Lower, Alexander, 102 " 94 Upper, Cherokee, 103 Ashe, 46 Jcft'erson, Henderson, 104 " 95 Council's Store, Yancev, 105 " 96 Gap Civil, Yadkin, 106 Orange, 47 Hillsboro', Watauga, 107 48 Hawfield, Caldwell, 108 Alamance, 49 McDowell, 109 Person, 50 Jackson, no Richmond, 51 First, Madison, 111 East, '< 93 Second, 112 West, Iredell, 52 South, Cabarrus, 1 Volunteer Reg't. " 89 N. of South Yadkin, Stokes, 2 " " 9. The officers of the infantry shall be as follows. To each Officers of in- division there shall be one major-general, and two aids-de- gra'iIl[^.d'Tiow camp with the rank and pay of majoi-, one division ins]iector, appointed. and one division quartermaster, with tiie rank and pay of lieutenant-colonel, to be appointed by the major-g neral and 34* 402 MILITIA. [Chap. 70. commissioned by tlie governor; to each brigade one brigadier- general, and one aid-de-camp with the rank and pay of ma- jor, one brigade inspector with the rank and pay of major, one hospital surgeon and two mates, and one assistant dep- uty quartermaster-general, with the rank and pay of a cap- tain, to be appointed by the brigadier-general and commis- sioned by the governor ; to each regiment one colonel and lieutenant-colonel, and one major; there shall also be to each regiment one adjutant an3 one quartermaster, who shall be commissioned officers with the rank of lieutenant, one pay- master, one surgeon, and one surgeon's mate, one sergeant major, one drum major, and one life major, all to be appointed by the commanding ollicer of the regiment; and the adjutant shall, when necessary, discharge the duties heretofore assigned to the brigade inspectors within his regiment, for which ser- vice he shall be allowed by the court-martial a reasonable compensation, if they think proper, to be paid out of the fmes collected ; to each company there shall be one captain, three lieutenants, one ensign, four sergeants, four corporals, one drummer, and one fifer ; all commissioned olllcers of the same rank shall take precedency on command, according to the date of their commissions ; and where two or more of the same grade bear an equal date, then their rank shall be determined by lot, to be drawn by them before the commanding officers of the division, brigade, regiment, battalion, company, or de- tachment. The general and field officers, and all other com- missioned olficers, shall reside within the division, brigade, regiment, battalion, or company district, which they respec- Adjntant-gen- tively command. An adjutant-general of the militia shall be appoin e . ^ppQJ|-,^gj m^^j Commissioned by the governor of the State, who shall rank as a brigadier-general, and shall receive a sal- ary of two hundred dollars per annum for his services, besides a reimbursement of his expenses, as hereinafter provided, to be paid quarterly by the treasurer by a warrant from the gov- ernor. Provided., however., that no major-general, brigadier- general, or colonel shall be appointed or act as adjutant-gen- Goveniormay ^ral. The governor shall be entitled to four aids-de-eamp, iippoint four whom he may appoint and commission with the rank of colo- — r!^S. c^'ri' s. nel. The commissions hereby authorized and directed to be ».— 1842, c. 57, granted to the several aids-de-camp of the governor, inajor- '■^' generals, and brigadier-generals, to division inspectors, division quartermasters, brigade inspectors, hospital surgeons and mates, and assistant deputy t[uartermaster-generals, shall be held during the pleasure of the governor, or the generals to whom such aids-de-camp and the other aforesaid officers may be attached. Uniform of of- 10. The uniform, prescribed for the officers of the regular TsT'io^^'*" ^'■™y of t'^^ United States, shall be the uniform to be worn 1846, c. 38, s. 9. by the commissioned officers of the same rank in the militia of this State. Chap. 70.] militia. 403 11. All officers who may accept of military commissions Offlcprst^i hold shall hold and continue to discharge the duties of their re- u^rTvelr"' spective offices for three years from the date of their comniis- and equip with- sion, unless a resignation should be rendered necessary by pro- '" ^^ "lo"**- motion, removal, or disea.se; and they shall equip themselves according to law, within twelve months, and any officer who shall fail to comply with the above requirements shall forfeit and pay, if as high as the grade of a field officer, fifty dollars, PenaUv. of a captain twenty-five dollars, and of a lieutenant or ensign twenty dollars ; to be sued for and recovered by the adjutant, in the name of the State of North Carolina, and to be ac- counted for to the paymaster and applied as olher militia,,. c -\ikTi ii I 11 ■ .1 ,-r- r Jlaior-penerals lines. When there shall occur a vacancy in the office of ma- and all 'fieW jor-general, the adjutant-general shall issue orders to the brig- officers, how adier-generals in that division, who shall forthwith issue orders commiss'ioned. to the colonels of their respective regiments to call together the commissioned officers of their regiments, at the usual place of regimental musters ; and also to the general staff and cavalry officers who may reside within the respective brigades, at such place as may be designated by the brigadier-general to meet ; and at such time as the brigadier-general shall di- rect, they shall proceed by ballot to elect a major-general of that division ; and it shall be the duty of each colonel and the cavalry officer highest in command presiding at the election, to transmit to the brigadier-general of his brigade a fair state- ment of the votes so polled, within ten days after said election, and the brigadier-general shall compare the votes transmitted to him by the said officers in his brigade, and shall transmit to the adjutant-general a fair statement thereof; and the ad- jutant-general shall compare the statements made to him by the brigadier-generals, and make known to the governor the person for whom the highest number of votes may have been given, and a commission shall be issued by the governor ; and if the office of major-general shall be vacated by death or re- moval, the brigadier-general in whose brigade the major-gen- eral lived, shall inform the adjutant-general thereof, and all resignations of major-generals shall be made to the adjutant- general, and by him made known to the governor. When a ■vacancy siiall occur in the office of brigadier-general, the ma- jor-general of that division shall issue orders as aforesaid for the election of a brigadier-general of that brigade, and the several officers as aforesaid shall transmit, within ten days, a fair statement of the votes given to the major-general, who shall compare the several returns, made to him, and inform the governor who shall have received the highest number of votes, and the governor shall issue a commission ; and if the office of brigadier-general shall become vacant by death or re- moval, the colonel, senior in commission, of the county wherein said brigadier-general Uved, shall inform the niajor-general y^^^ ^^ i.^^. thereof, by mail or otherwise, forthwith, and aU resignations ami who noti-' of brigadier-generals shall be made to the major-general, and ^'^'^ "' vatan- 404 MILITIA. [Chap. 70. cies, and by by him made known to the governor. If, on comparing tlie "c^Ts'sTu.^ votes given for a major-general there be a tie, the governor shall make the appointment from the two highest candidates; and if there be a tie in the votes given for brigadier-general, the major-general shall make the appointment from the two highest candidates. When a vacancy shall occur in the office of colonel, lieutenant-colonel, or major, the senior officer in command attached to that regiment shall call together the rank and file and the officers of his regiment, at the usual place of regimental review, and at such time as he may think proper, and they shall proceed to elect by ballot officers to sup- ply said vacancies, and a fair statement shall be transmitted by the officer highest in command to the brigadier-general of his brigade, of the officers that have been elected, and the brigadier-general shall inform the governor thereof, from whom commissions shall issue. All resignations of colonels, lieuten- ant-colonels, or majors, shall be made to the brigadier-general of that brigade ; and in case of vacancy in any of those offices by resignation, the brigadier-general shall order an election as before directed, and shall inform the governor of such resigna- How officers of ^i°"- "^'^^ commissioned and non-commissioned officers of companies each company shall be elected by a vote of the majority of the e'Ts'^s' Th— ^ members of the company ; the election to be conducted by the 1840,'c. 42, s. 1, officer highest in rank, or if there be no officer, by a person s'l'^^is"'^^' belonging to the company designated and authorized by the isi's.'c. 58,s.6. colonel of the regiment: the person superintending the elcc- 1850, c. 89, s. 5. ^j^j^ gjjj^n report the result to the colonel ; the colonel shall re- port the same to the adjutant-general, who shall inform the governor, and the governor shall issue commissions to the of- ficers so elected. Provided, however, that on failure of any company to elect officers, for three months after vacancies oc- cur, or to fill a vacancy within three months after the company are called together by a person authorized by the colonel for that purpose, then the colonel may appoint proper officers to command said company, to whom the governor shall issue proper commissions upon a notification from the colonel ; and if the colonel can get no person to accept such appointment, he may attach said company to any other adjacent company in his regiment. The polls for all such elections shall be held and kept open from eleven o'clock, A. M. until three o'clock, v. M. When any commission for a major-general or brigadier-general is issued by the governor, under the provisions of this section, it shall be the duty of the adjutant-general to have the same published in one of the papers in the city of Raleigh. Officers to Eive 12. When any officer commanding a division, brigade, or notice of^|ieir regiment, shall have occasion to be absent from his usual S. c. 73,' s. lis. residence two months or more, he shall notify the officer next entitled to the command, of his intended absence, and also his next superior officer in command. To deliver to 13. All officers who shall have in their hands either money their successors ^j, papers received by virtue of their appointments, shall, when Chap. 70.] militia. 405 they leave their office, pay and deliver the same to their sue- money or pa- cessors in office, under the penalty of one hundred dollars, to Cg'^sf^^' °" be recovered in the name of the governor, and applied as here- inafter directed. 14. The rules of discipline and system of tactics, which Kuies of disci- may be approved and prescribed by Congress, shall be estab- P ""^' lished as the rules for the discipline of militia of this State, except such alterations as shall be rendered necessary by unavoidable circumstances. The adjutant-general shall pro- AJjutant-geni cure McComb's Tactics, and shall furnish to each major-gen- t" 'Jj^-^tribute eral and brigadier-general five copies ; and to each colonel of tics, :md iiow. a regiment a number of copies equal to the number of com- 77^^^;. 'i' '®'^' panics and field officers in each regiment, for distribution 33J s. ic,!*! among the officers of the militia as the general and colonel may think proper. Upon the resignation or removal of any field officer or company officer, he shall deliver to his succes- sor in office the copies of military tactics with which he has been furnished ; and in case of his death while in office, his executor or administrator shall deliver the same as aforesaid ; and upon a failure so to do, the said officer, or his executor or administrator, as the case may be, shall forfeit and pay the sum of three dollars, to be collected by his successor in office, and applied as other militia fines. 15. The regimental or battalion courts-martial shall have Captains' dis- power so to lay off the several captains' districts, as to render tricts, how laid them as convenient to the inhabitants as a due regard to the requisite number of persons liable to perform military duty will permit ; and they may at any subsequent court-martial so alter, enlarge, or consolidate their respective districts as to cre- ate new ones, or unite portions of districts together, so as to form other and separate districts ; and all allotments or altera- tions shall be duly recorded by the judge advocate in the books of the regiment or battalion ; where a small number of inhabitants are so detached, by watercourses or mountains, as to render their attendance inconvenient at any place where they have been accustomed to muster, and where such de- tached sections contain a population of thirty-six men, liable to perform military duty, the regimental or battalion court- martial shall lay that section oft' into a separate captain's dis- trict, and appoint officers in the same manner as in other dis- tricts ; and where there shall be two or more regiments in any Bomidary lines county, a majority of the officers composing such regiments !."j^g=™^°^°^ shall have full power to alter and regulate the boundary lines iiow altered".— of their regiments, and in the event the officers should not {^j ^' ''" "' ^" agree with respect to said lines, the county court, a majority of the justices being present, shall establish the said lines; and when so fixed, the judge advocate of each regiment shall spread the same on their journals. 16. Every captain or commanding officer of a company Regulations .as shall, at least twice a year, at such place as may be designated '"^ compiuiy 406 MILITIA. [Chap. 70. musters.— R. by a majority of his company, and agreeable to the order of S. c. 73, s. ifr. ^j,g commanding otHcer, muster, train, and exercise such com- pany, and shall cause them to remain under arms at least two hours on every day, by himself, or one of his lieutenants, or his ensign, and then and there teach them the manual exer- cise, and the proper company mancruvres, at which muster the officers and privates shall appear armed and equipped as hereinbefore required. The captains shall not call their men together without their consent, for the purpose of company musters, more than twice in each year, except in cases of insur- rection or invasion. Provided, that this section shall not apply to volunteer companies: and provided further, that when any person enters into the rank in the extra musters, he shall be subject to the same discipline, and governed by the same rules and penalties, as govern them in their regular musters. If any captain or commanding oflicer of a company shall fail or neglect to muster his company as herein directed, he shall forfeit and pay six dollars, to be adjudged by the next regi- mental court-martial ; and if he, or any commissioned officer of the company, shall fail to appear equipped, as directed, at the said muster, the officer so failing shall pay four dollars ; ■ and if a non-commissioned officer or private shall fail to attend at a company muster, he shall forfeit and pay a sum not exceeding two dollars nor less than one dollar, and if he attend without being armed and accoutred he shall pay a sum not exceeding one dollar nor less than fifty cents, which sum shall be adjudged by the company court-martial, according to the circumstances of the delinquent. Provided, that every absentee shall be allowed until the next succeeding company muster to make his excuse, which shall always be on oath, the officer highest in rank present being authorized to administer the same. When companies consist principally of persons residing within any town, and the muster ground is at, or within one mile of, said town, all fines imposed by this sec- tion for not appearing at reviews and musters, or, if appear- ^^ng, not being properly armed and accoutred, shall be doubled. Company 17. The commissioned officers of the company, or any two How to pro- of them, after every muster of the company, shall, on the ceed. same day, meet in court-martial, and proceed to try and deter- mine on all cases which may come before them ; and, on con- viction of any delinquent, the officer highest in rank present shall enter up judgment, and issue writs of execution against the goods and chattels and body of the delinquent, as on judg- Appeai al- ments in civil cases. The rio;ht of appeal shall be allowed from a company to a battalion or regimental court-martial, but no appeal shall be granted, unless the person praying the .same shall give security, to be approved by the captain or pre- siding officer of the company court-martial, to abide by the decision of the battalion or regimental court-martial ; which appeal shall be taken in like manner as appeals from justices lowed. Chap. 70.] militia. 407 of the peace to the county courts, and shall be proceeded on in like manner by the battalion or regimental courts-martial. Every execution issuing upon a judgment entered up be- r.xecutioni fore any court-martial, shall be directed to a constable, or nmrtiai how the sheriff of the county ; and the officer to whom such execu- ?nd to wiwin tion may be directed and delivered, shall proceed to collect the same in the manner and under the rules established in civil cases, and shall be allowed the same fees for his services ; he shall make his return to the next sitting of the court-martial from which the execution issued, under a penalty of twenty Penalty on dollars for every neglect of duty, to be recovered by suit on s[a^b7e^foTneg-' the official bond of such constable or sheriff, in the name of lect.— R. s. c. the State, to the use of the presiding officer of the court-mar- ]^42'c.'57p. 3- tial from which such execution issued. Any penalty so i846,c.3h,s. 7; recovered shall be appropriated as other militia fines ; and in }g**' "' ^^' ^" case the presiding officer of any court-martial shall fail in any such suit, he is authorized to use so much of the fines of his company, battalion, or regiment, as the case may be, as shall be necessary to defray the expense of such suit. 18. For the encouragement of military music, the captain Company mu- r , .]., I. . (. . "^ 1 L r sicians, how of each military company of infantry may select from among appointed,— the persons enrolled in his company, one fifer and one drum- their nriviieges. mer, each being properly qualiiied for their appointment, which is. ' " " ' ' ■ selection shall be made under the direction and with the approbation of the field officers belonging to the regiment to which such company is attached ; and when such selection of musicians is made, the field officers shall grant a certificate to such musicians of their appointment, and the county court of the county shall exempt and discharge such musicians, so selected, during their continuance in appointment, from serv- ing on all juries, from working on the roads, and from the pay- ment of poll taxes ; such musicians shall be removable at the pleasure of the field officers of the regiment to which they severally belong, and shall attend every muster of their respec- tive companies, and also the muster of the officers, and per- form the duties of their appointment, under the penalty of four dollars for every neglect, to be collected and applied in the same manner that other fines are. 19. No overseer of a road shall order the hands under him Road hands not to work on the days previously appointed for musters by the o° t'™' mu^Ln- captain of the company to which such hands belong. day. — r. s. c. 20. The captains shall, at the several musters, or within clip'tain^ to thirty days after being required so to do, or immediately if make returns required at a regimental or battalion muster, make a return of " ■■'3"'s720. ^ their respective companies to the commanding officer of the regiment or battalion, under penalty of ten dollars in the first case, or disobedience of orders in the second case. 21. There shall be in every year at least one regimental or Ri^mental or battalion muster, to be ordered by the commandant of such te'rs."'"'" '""° regiment or battalion, at such place as may have been des- ignated, or may hereafter be designated by a majority of the 408 MILITIA. [Chap. 70. commissioned officers of such regiment or battalion, at which such commanding officer shall cause the militia to be exer- Where held, cised at least two hours on each day. The battalion muster shall be held as near the centre of each battalion district as is Dutyofcolo- possible to find a suitable place for said muster. The colonel °®'- shall attend at such battalion muster on the days of drill, and the days of review, and drill and instruct the officers and men Penalty for in their duties : and if he fails to discharge said duty, he shall — ^^^S^c''"?' ^^ fined not less than ten, nor more than twenty dollars, unless 9. 21. — i846,c. he renders to a court-martial a sufficient excuse for such fail- 38, s. 11. ^^|.p . g^jj court-martial to be called by the brigadier-general, upon information to him by the adjutant, and to consist of at least five commissioned officers, one of whom shall be of as high rank as colonel, and the others of at least as high rank as captain. PennUyonoffi- 22. If any officer shall fail to attend at any review, regi- cers fiiiiiig to cental or battalion muster, or, attending, be not armed as re- attend reviews . , , , . , , i , n • x- i r x or musters.— quired by this chapter, he shall, on conviction belore a court- ^- ''••'■^^'S- 22- niartial, forfeit and pay, if a field officer, the sum of twenty dofiars ; if a commissioned officer under that grade, the sum of ten dollars ; and every non-commissioned oflicer or private, who shall fail to attend such review or muster, shall, on con- viction, pay such sum as shall be adjudged against him by the commissioned officers of the company to which he belongs, not exceeding four dollars, nor less than one dollar, to be as- certained at the next company muster, and, when collected, to be accounted for with the court-martial ; or, if appearing, be not armed as by law directed, shall, for such default, forfeit and pay a sum not more than one dollar and fifty cents, nor less than fifty cents, to be adjudged and accounted for as aforesaid. Commandants 23. The commanding officer of each regiment or battalion &"f!)"l*iv'e^',o ^^^" §'^^ *■*' ^^^ commanding officers of the companies, under tioeofreview.s his command, not less than ten days' notice of the battalion 73''s~23' ^' "' °'' regimental musters or reviews, which may at any time be ordered. Commissioned 24. Every commissioned and non-commissioned officer of "'^ntf&c'^'^to" ^'^^ infantry, by appointment of the commanding officer of exercise, day each regiment, shall meet the day before that on which the before review, commanding officer of such regiment or battalion has ap- renaltytor lail- , -,..,,-,. /. • • ^ i ^ i uro. — R. S. c. pomtcd for holdmg of reviews or regimental musters, wnere Ib\I'^«~ 11 the said officers of infantry shall be exercised by the adjutant, 1846,c.3o,s.ll. 1. .,. r- 1 • 1 1 A 1- or by the commanding otlicer of such regmient or battalion, at least tliree hours, when and where they shall be instructed in all matters of field exercise and discipline, according to the system which may be established by law. And any commis- sioned or non-conmiissioned officer, who shall fail or neglect to appear at the time and place so appointed by the com- mandant of his regiment or battalion, or, if appearing, be not armed and e(|uipped as by this chapter directed when at any review or parade, such commissioned officer, so failing and Chap. 70.] militia. 409 neglecting, shall forfeit and pay the same sum which such offi- cer would be compelled to pay in cases of failure and neglect at any regimental or battalion reviews or parades, and such non-commissioned officer shall be fined for such failure two dollars, unless he furnishes a sufficient excuse to the regi- mental court-martial ; and the same shall be recovered in the same manner and the money applied, as in other like cases directed by this chapter, and such officer shall, in every instance whatever, be subject to the same punishment for neglect of duty or disobedience of his superior officers, as such officer would be subject to when in actual military service. 25. If any commissioned officer shall suffer himself to be Pejiaities an intoxicated on parade or drill, or behave in a riotous or disor- ".Mes'fbTnX-' derly manner when on duty, or disobey the orders of his com- beiKwin,!;. — manding officer, he may be ordered in arrest by said command- 23. — 1842' c'. ing officer until the parade or drill is over, and shall be subject ", s. 4. to trial by a court-martial, and by them fined not to exceed twenty-five dollars, or, at their discretion shall be reprimanded jjublicly, or cashiered. If any non-commissioned officer or private shall, during the time of muster, or whilst on duty, behave in a disorderly manner, or resist or refuse to obey his commanding officer, he may be ordered in arrest by such com- manding officer during the time of muster or duty, and fined at the discretion of the court-martial, not to exceed five dol- lars. Provided, the said court-martial be regularly detailed as prescribed in this chapter. ' 26. If any person, liable to perform duty, shaU appear at Persons on or near the parade ground, during the time of any review or "^!jf*^'' S','""«l muster, and shall not take his proper station and perform the d'uty.'iir'rested. duties required of him by law, or behave himself in a disor- ~Jg ''• "■ "• derly manner while on parade, the commanding officer of the ^' " ' regiment or corps shall order the said person under guard, there to be detained during the time of exercise or the ser- vice then performing, and until the militia are discharged, and such person shall further be fined at the discretion of the court- martial. 27. No qfficer or soldier directed by this chapter to appear Persons at- and muster as aforesaid, shall be liable to be taken or arrested '""''"R ™"s- in any civil action or process whatever, on the day such per- rroma'm"t'in son is directed to appear, or in a reasonable time either in '^'^■'' "^^'^^■ going to, continuing at, or returning from the place appointed to muster or appear, but every such arrest shall be void. Every person required to attend musters and reviews, going to Not to pav tolls or returning from the same, shall be suffered to pass over any j^'' g "' yf gjy toll-bridge or toll causeway, and shall be put over any ferry, '' ''^' '^' without delay, free from any charge whatever. If any ferry- man or proprietor of a toll-bridge "shall demand pay, or refuse to put over such person, he shall forfeit and pay for every such offence four dollars to the sole use of the informer. 28. All parents, masters, and guardians shall be liable for rnr^nt., &c., the payment of any fines incurred by those under their care, !!:'K!''s!"c.'^7r 35 s. 28. 410 [CiLVP. 70. as well for non-attendance at company, battalion, or regi- mental musters and general reviews, as for not being armed and equipped as hereinbefore provided. Ee|iment!ii 29_ The commanding olHcer of each regiment or battalion courts°-martiai. shall Order a court-martial to be held, at the place appointed Their power for fijg muster of the same, on the day after the regimental or S."o. 73', S.T9. battalion muster, or on the same day if convenient, which court shall consist of a majority of the officers of tlie regiment or battalion, one of whom shall be a field officer, and two of the grade of captain, and the highest officer in rank present shall be president. The court shall be notified of their duty by the adjutant of the regiment or battalion, by a roster to be kept by him ; and the said court, wlien convened, shall ap- point a judge advocate, who shall himself, in the presence of the court, take the following oath : — "I, A. B., do swear, that I will well and truly perform the duties of judge advocate of this court, according to the best of my skill and ability : so, help me God." And the judge advocate shah administer the following oath to the members of the court-martial : — " You, A. B., do swear that you will hear and determine all causes which may come before this court, and that you will faithfully report all delinquents that come within your knowledge ; that you will account for all fines and forfeitures by you collected or received, and in all cases enforce a due execution of the militia laws of the State, to the best of your Icnowledge and ability ; so, help you God." They shall inquire into the age and ability of all persons that come before them by appeal, and exempt such as may be excused on account of age, or be judged incapable of service ; also try and decide on all persons charged with omission or commission, as well by officers as by privates. The said regimental or battalion court-martial shall hear and determine all appeals from the company court-mar- tial, and order or dispose of all fines, for buying drums, fifes, and other implements of war, for the use of the company, where the same shall arise, and for supplying the militia with arms and accoutrements, and for other purposes that will pro- mote the good thereof. The judge advocate shall be allowed a reasonable salary, to be paid out of the fines, for his services ; his duty shall be to write at length the proceedings of the said court; for all fines, which may be imposed by the court-mar- tial, he is authorized and reqmred to enter up judgment and issue execution. 30. The paymaster shall demand and receive of the adju- tants, sergeants, constables, and others, who may have col- lected them, all fines and forfeitures, and distribute the .same agreeable to the directions of the court-martial, and settle his accounts annually with the judge advocate ; and the ])aymaster shall, before he enters on the duties of his office, give bond and sufficient security, in the sum of two hundred dollars, payable to the commanding officer of the regiment and his successors in office, for the faithful accounting, agreeable to law, for all Duty of pay in asters. — R ,S. c. 73, 3. 3 Chap. 70.] militia. 411 sums of money which may come into his hands by virtue of his appointment; and the commanding officer aforesaid, under the penalty of two hundred dollars, shall sue for and recover the same, and when received by him, apply it as is already by law directed ; and the several paymasters shall be allowed a reasonable compensation for their services by the court-martial. In case there shall be no paymaster appointed by the com- mandant of any regiment, then each commandant shall per- form and execute the duties of paymaster, as above required. 31. Every officer shall take the following oath, to be ad- Oath of officers, ministered in open court-martial by the judge advocate, or, if 31. ' ' " ' ' a company officer, it may be taken before the commanding officer of the regiment: — "You, A. B., do solemnly swear, that you will execute the office of according to the rules of military discipline and the laws of the State to the best of your knowledge and ability, and that you will support the constitution of the United States and of this State ; that you will, at the court-martial of the company to which you belong, duly administer justice, and apply fines and penalties according to law and to the best of your ability, without favor, affection, or partiality : so, help you God." No officer shall be allowed to sit in a regimental, battalion, or company court- martial, unless he shall have taken the oath aforesaid. 32. If, at any regimental, battalion, or company court-mar- Proceedings at tial, or company of the officers, there shall be any delinquents, against d'eiin'- either for non-attendance, or not being properly armed and '5"^"'^-~^- ^• accoutred, or for disorderly conduct, proclamation shall be ' ' ' made by the captain or commanding officer, calling the names of all delinquents enrolled, that they attend the trial at the fol- lowing company court-martial, which shall be deemed a legal notice : if field officers, or officers of the regimental staff, such notice shall be given by the commanding officer or adjutant of the regiment or battalion, or to the officers assembled ; and if any officer or private has an excuse to offer to the court-mar- tial, he may send his affidavit taken before a civil magistrate, or produce a witness, or he may personally appear and make oath to the cause of his delinquency; and in all cases, whether from neglect or failure of the officers and privates at regimental or battalion musters, or of appeals froiu the company courts- martial, and of all other cases of which the regimental courts- martial have jurisdiction, their determination shall be final. 33. The several courts-martial shall have power to adjourn Courts-martial from day to day, or to any future day, when the officers enti- R"k''cl'°73,"s~ tied to compose the same shall attend, under the penalties by 33. law established in other like cases for non-attendance, and at which time the luifinished business of the court may be acted upon : if there should not be a sufficient number at the place of adjonriunent to form a quorum, the officer ordering the same shall have power to continue its adjournments. 34. Every commanding officer of a regiment, shall exact Duties of com- and enforce regular settlements of all fines, collected under the "'"saTfomics. 412 Penalty on captains. — R. S. c. 73, s. 34. — 1842, c. S8, s. ?. Eetums to bo made hy com- mandants of regiments. — B. S. c. 73, s. 35. Duties of gen- erals, as to re- view,s. — K. S. c. 73, s. 36. Returns to be made by brig- adier and ma- jor-generals. — R. S. c. 73, s. Penalty on general officer, &c. for failing to review or muster, or to make returns, or be equipped. MILITIA. [Chap. 70. militia laws, from the several persons, charged with the col- lection thereof within his regiment, whicii lines shall be appro- priated as directed by law ; and each captain or commanding officer of a company shall report in writing, once in every six months, to the commanding officer of the regiment, to which he belongs, the amount of fines assessed in his company within that period; and if he shall neglect to make such re- port and account for such fines, he shall forfeit for every such neglect the sum of ten dollars, unless he renders to the regi- mental court-martial a sufficient excuse therefor. 35. Every commandant of a regiment shall, at least once in every year, on or before the 25th of October, make a return to the brigadier-general of the brigade to which such regiment belongs; and shall transmit a duplicate of the same to the ad- jutant-general, on or before the 15th day of November in every year, at the bottom of which he shall report, whether or not his regiment was reviewed by the major or brigadier-general, and at what time. 36. Every major-general shall review his division once in every three years, and a brigadier-general shaU review his brig- ade once in every two years ; the several corps composing a division or brigade to meet by order of the reviewing general, by regiments, at such time as he may appoint, and at the usual places of regimental musters, in their respective coun- ties. The major and brigadier-generals shall give fifty days' notice, by order to the commandants of their regiments or brigades, of the time of the review, previous to such review taking place. Any major or brigadier-general, failing to give notice as above directed, shall forfeit and pay, for every oflence, the sum of forty dollars, one half to the use of the county, in which recovery is had, and the other half to the use of the per- son suing for the same. 37. Tlie brigadier-general shall make a return of his brigade to the major-general of his division, on or before the tenth day of November in every year, and shall transmit a duplicate of the same to the adjutant-general, on or before the fifteenth day of November, in which he shall state when his brigade was last reviewed by the major-general of his division. The major- general shall make a return of his division to the adjutant- general, annually on or before the fifteenth day of November. 88. If any general officer, or commandant of a regiment, shall fail to review his division or brigade, or muster his regi- ment, or to make an annual return of his division, brigade, or regiment; or if any major or brigadier-general shall fail to equip himself, the governor shall cause the adjutant-general to give such deliiuiuent officer thirty days' notice of his neglect of duty; and if such delinquent officer does not, within forty days thereafter, render a satisfactory excuse for such neglect, by showing to the governor that such delinquency happened in consequence of indisposition, absence from the State, or other sufficient cause, the governor shall strike his name from 7-# Chap. 70.] militia. 413 the list of officers, and commnnicate the same to the adjutant- No officer to be general, who shall have it published in some newspaper within commfssi™'''' the State, and issue proper notices to supply the vacancy, without trid.— Provided, ho we uer, that no commissioned officer shall be de- gj^ _l'^j'3^^| ^^ prived of his rank or rights as such, without a regular trial 38, s. 12. before some court-martial, detailed for that purpose in manner prescribed in this chapter. 39. The adjutant-general shall distribute all orders from the Duty ofadju- commander-in-chief of the State to the several corps; attend t™^"?^"^™'-- public reviews, if required, when the commander-in-chief of 39. the State shall review the militia, or any part thereof; obey all orders from him relative to carrying into execution and per- fecting the system of military discipline, established bylaw; furnish blank forms of different returns that may be recjuired, and explain the principles upon which they shall be made; and also furnish blanks of such returns ; shall demand and receive from the several officers of the diflerent corps through- out the State, returns of the militia under their command, re- porting the actual situation of the arms and accoutrements, and their delinquencies, and every other thing which relates to the advancement of good order and discipline ; all which the several officers of the divisions, brigades, regiments, and bat- talions are required to make, in the manner herein directed, that the adjutant-general may be duly furnished therewith, previous to the biennial meeting of the General Assembly; from all which returns he shall make proper extracts, and lay the same, with a report of the general state of the militia, magazines, and military stores, and such improvements as he may think necessary for the advancement of discipline and benefit of the militia, biennially before the General Assembly, or the commander-in-chief of the State, who is required to lay the same without delay before the said assembly. And the adjutant-general shall also annually make a return of all the militia of the State to the president of the United States. In failure of which recited duties, he shall suffer the following fines and penalties : for not attending all public reviews, when required by the governor, fifty dollars ; for not furnishing blank forms, as required by this chapter, ten dollars for each neglect, one half to the use of the informer and the other half to the use of the State; for not distributing all orders from the com- mander-in-chief of the State, or for not making returns as re- quired by this chapter, upon conviction of either before a gen- eral court-martial, to be ordered by the governor, he shall be cashiered; he shall be compensated for the expense of all the blank forms of returns, necessarily required in his department; and the postage of all letters to and from him in his capacity as adjutant-general, shall be paid to him by the treasurer of the State, on the adjutant-general producing a stated account of the same by him certified : he shall keep a roster of the names and dates of the commissions of each major and briga- dier-general in the State, likewise the counties under each of 35* 414 MILITIA. [Chap. 70. their commandri respectively, designating therein the numbers of eacli division, brigade, and regiment ready at all times for immediate inspection ; shall at least once in every three years transmit a copy of this roster, certified by him, to the president of the United States, to the governor of the State, and to the General Assembly ; and he shall from time to time make a report to the General Assembly of what shall be done by him in virtue of his appointment, and accompany such report with such remarks, as may by him be deemed necessary for the better regulation and improvement of the militia discipline throughout the State. In certain cases 40. If no immediate opportunity offers for forwarding orders returns and or- , ., ^ ■ ^ r , ■ , ■ ,11. ders sent or returns, the certamty 01 which insures a speedy delivery tlirough post- thereof, which can be easily ascertained and proved, then the office. — R. b. c. jT- ■ ■ ,, 1 "^ 1 • ,1 / ,, 73, s. 40. oilicer issuing the order or making the return (as the case may be) shall lodge the same, properly directed, in the post-office, marked on the back " public service," under which he shall write his name and grade, and a return thus made shall be deemed sufTicient and good in law. Governor may 41. The governor may mitigate or remit all fines and pen- remit fines and „ij.- 1-1 u 1 ■ I- ji , r ■ ■ penalties.— R. ^'ties, which may be recovered in any of the courts of justice S. c. 73, s. 41. against any general or field officer, arising under the militia laws of the State. Mrair^how '*^' ^'^^^"^ ^^^^^ ^'^> "^ ^^"^''i brigade of the militia in the formed,'offi^ State, One regiment of cavalry ; there shall be to each regiment &c!^'r*'s''"'' °^ cavalry one colonel, one lieutenant-colonel, and one major, 73,s.42.— is42, to bc elected and commissioned in like manner as such officers 9'- ^^46 ' ^'^ss' ^^'^ elected and commissioned in the infanti-y ; and out of the s.'s. ' ■ ' militia enrolled in the State there may be formed, out of each battalion that has a separate muster, at least one troop of cav- alry, to be formed of volunteers, which shall bc uniformly clothed in regimentals at their own expense, the color and fashion to be determined by the field officers of cavalry of the regiment or battalion to which they belong; to each troop one captain, two lieutenants, one cornet, four sergeants, four cor- porals, one saddler, one farrier, one trumpeter, and no less than twenty-four dragoons. The commissioned officers to fiu-nish themselves with good horses, at least fourteen and a half hands high, to be armed with a sword and pair of pistols, the holsters of wliich shall bc covered with bear skin ; and each dragoon shall furnish himself with a serviceable horse, at least fourteen and a half hands high, a good saddle, bridle, breastplate, crup- pers, and valise, a pair of boots and spurs, one pair of pistols and holsters, the holsters to be covered with bear skin, a sword, and cartouch box to hold twelve cartridges for pistols ; and the field officers and commissioned officers shall reside within the brigade, regimental, or troop district in which they respec- tively command; there shall also be to each regiment of cav- alry one adjutant, one quartermaster, one paymaster, one surgeon with the rank and pay of a first lieutenant, and one surgeon's mate with the rank and pay of a second lieutenant, Chap. 70.] militia. 415 to be appointed by the commanding officer of each regiment; the commissioned officers of troops of cavalry shall be recom- mended by the field officers of the regiment to which they belong, and commissioned by the governor. Provided, Iioiv- ct>er, that whenever a troop of cavalry shall be formed in any brigade where there is not a sufficient number of troops to form a regiment, the officers of such troop shall be recom- mended by the brigadier-general and commissioned by the governor. All non-commissioned officers of each troop shall be appointed by the captain of such troop ; all commissioned officers shall take rank according to the date of their commis- sions, and when two or more of equal grade bear the same date, then their rank shall be determined by lot, to be drawn by them before the commanding officer of the regiment to which they belong. 43. Eacii troop of cavalry shall muster at least once in every Troops of cav- three months, at such time and place as the captain or com- nl^'^teT^&'how manding officer of such troop shall direct, and the captain i-ctmns'mnde. shall make a true return of his troop to the commanding offi- ,Y'!°/''.,';°"'- cer 01 the regunent to which he may belong, on or before the mustering with first day of September in every year, under the jjenalty of 'g ''^"l^'"^ thirty dollars for each neglect. Provided, hou-cver, such return — i844,'c.'38," shall be made to the brigadier-general where there is- no regi- ^' ^' meiit of cavalry in the brigade. The troops of cavalry, when attending the general muster of the regiment or battalion of infantry, shall be under the command of any field officer of the cavalry, if present on parade, except on review days, when ordered by the major-general, adjutant-general, or brigadier- general ; and at the reviewing of the regiment of cavalry, when ordered by the colonel thereof, the cavalry shall then be under the command of the oflicers of the cavalry only, except a gen- eral officer shall be present on parade. 44. The field officers of cavalry, once in every two years. Field officers of shall review the troops of cavalry, composina: their reeiments, <^?vairy to re- 1 ».'io o7 view ''e 416 [Chap. 70. hcUi— R. S. c. 73, s. ib. Fines of caval- ry officers and privates, same as in infantrv. — R. S. c. 73, s. 46. How cavalry fines appropri- ,ated.— R. S. c. 73, s. 47. Duties of adju- tants of regi- ments. — R. S. c. 73, s. 48. Certain sec- tions of tliis cluiptor to ap- plv to cavalry. — "R. S. c. 73, s. 49. immediately after their respective troop or regimental musters, shall hold troop or regimental courts-martial, in the same man- ner, and the courts shall have the same power, duties, and authorities, and shall be governed by the same rules and regu- lations as the company or regimental courts-martial of the infantry herein before prescribed. Provided, however, that the delinquents of each troop of cavalry, at any regimental parade, shall be heard, and either fined or excused, at the troop court- martial next succeeding such regimental muster or review; and the troop courts-martial shall make returns to the next suc- ceeding regimental court-martial of their proceedings, and of all moneys by them caused to be made, to be disposed of as herein directed. 46. The fines of the officers, non-comtnissioned officers, and privates of the troops and regiments of cavalry, for not holding musters, not attending musters, parades, and reviews, or not being armed and equipped as required by law, shall be the same as herein before prescribed for officers, non-commissioned officers, and privates of the infantry in similar cases. 47. All fines and forfeitures incurred by the cavalry officers or privates, and not herein particularly appropriated, shall be applied to the purposes of first buying trumpets, and then at the disposal of the regimental courts-martial, to the use and benefit of the troop whence the same arose. Those fines, paid by the field and statT officers, and not particularly appropriated, shall be equally divided among the troops composing the regi- ment to which they respectively belong; all other fines and forfeitures shall be appropriated and divided, at the discretion of the regimental courts-martial, for the promotion and ad- vancement of military discipline. 48. The adjutant of the regiment shall attend the regimental parade, and receive and execute such orders as the command- ing officer may deem expedient : and the said adjutant shall take an oath of office, in open court-martial, and from time to time call upon and bring suit against all delinquent captains, and other commissioned officers, below the grade of captain, for fines and penalties by them incurred, and wliich are not otherwise especially provided for in this chapter, and shall re- ceive and account for the same annually with the paymaster of the regiment; for which services the adjutant shall be allowed a reasonable compensation, to be paid out of the fines so col- lected, by order of the court-martial ; and in case any adjutant shall fail to attend and perform his duty as herein required, he shall forfeit and pay the sum of one hundred dollars. 49. The following sections of this chapter in relation to the infantry, are declared to apply to the cavalry, namely : so much • of the eleventh, twelfth, and thirty-eighth sections as relates to officers under the grade of lirigadier-general ; also the thirteenth, fourteenth, twenty-fifth, twenty-sixth, twenty-seventh, twenty- eighth, thirtieth, thirty-first, thirty-fourth, thirty-ninth, fortieth, and forty-first sections. CUAP. 70.] MILITIA, 417 50. No )Derson shall be commissioned in any troop of cav- Commission in airy, unless the number is such as shall be prescribed by this cl'ra'Tso!^^' chapter. 1842,' c! 57,'s. 8. 51. Out of the militia there may be enrolled as many vol- Voiuntecrcom- unteer companies of artillery, light-infantry, grenadiers, or riile- lery, fightJii-' men, as may see fit to form themselves into such, each com- fantry, gi-ena- pany to consist of thirty-two privates, four sergeants, four mwfmay'be' corporals, one captain, and three lieutenants (the third lieu- formed.— R. s. tenant to be the ensign); and persons subject bylaw to be 1842,' c. 57J sTb. enrolled in the militia may join any volunteer company in a regiment adjoining that in which they reside. 52. The said companies shall be clotlied in regimentals, to May choose be furnished by themselves, of their own choice and fashion, To'be"uud™' ■ and shall attend battalion and regimental reviews, parades, tiie coramander and drills, whenever ordered by the colonel of the county or °,Ki''do^auTy'as commanding officer of the regiment to which they respectively otiier compa- belong ; shall be subject to his orders, and liable to the same '■^s^Tlf^ ^' °' fines and penalties for the non-performance of military duty, misdemeanors in office, or dereliction of duty, as the militia are subjected to by law. 53. Whenever there may be a sufficient number of volun- Regiments of teer companies, in any one brigade, to form a regiment, con- pal"ermay°be" taining as many companies as five, the commissioned officers formed. of such companies may meet together, at such time and place of,Vow chosen. as a majority of them may designate, and proceed to elect —R- S. 0. 73, (a majority of said commissioned officers being present) a ^' ' colonel, lieutenant-colonel, and major, the result of said elec- tion to be certified by the senior officer present at said meeting, (who shall also preside thereat,) to the brigadier-general of said brigade, who shall lay said result before the governor, and he shall forthwith issue commissions to said officers. 54. The captains and lieutenants of said companies shall captains, and be elected by a majority of the members of their respective o'her officers, companies, and the non-commissioned officers of said compa — r. s. c. 73, s! nies shall be appointed by the commissioned officers thereof. ^''• 55. The captain or commanding officer of each company Company to of artillery, light-infantry, grenadiers, or riHemen, shall, at least "ree'^mont'hs!" once in three months, muster his men at such time as he may Way iidopt direct, and at such place as may be agreed on by a majority povernme'nt.'— of the company; and each company may adopt rules and reg- R.S.c.73, s.65. ulations for their own government, not inconsistent with the laws and constitution of the State and of the United States. 56. Whenever a regiment of volunteers shall be formed and Officers ojvol- officered, as herein before required, annual returns shall be m'entstomai • ■ 57. No person who shall procure himself to be enrolled in Volunteers, &c. r- , ■ 1 1 T 1 j_ ■ c , T ' n not to return to any company ot artillery, light-infantry, grenadiers, or rifle- i„|-a„try but by men, in any troop of cavalry or in any volunteer company, remission, &c. shall be permitted to return to the infantry, except by the con- sent of the field officers of the regiment, or by removal out 418 MILITIA. [Chap. 70. of the county, regiment, or battalion, wiicrein such person was enrolled; and it shall be suIFicient for any person to be enrolled and approved by the captain of said volunteer company or troop of cavalry, without the intervention of any other ofhcor. hifonto-rtiii'" Pi'oi-idcd, nei-ei-lheless, that any person enrolling himself with they equip.— any Captain of a volunteer company or troop of cavalry, shall 1842", c. 57,1'."'; ^^ Subject to perform all the duties and exercises in the infan- 1846', c. 38, s. 6.' try, and under the officers thereof, until such person so enroll- ing himself shall fully and completely equip himself with clothing and arms required and settled on for such company or troop, and a certificate to that eftect procured from the cap- tain with whom he has enrolled, and produced to the captain under whom such person so served before such enrolment, or his successor in office. Officers of vol- 58. Whenever there may be formed a regiment of volun- mentYtofe- teers, as herein before provided, the commanding officer shall 73°^'^" ss''' ^' "' ''^^^^^^ '''^ regiment, as often as the colonel or commanding ' ■ ■ officers of infantry may be required to do by law. fieid"officers°of ^^' Whenever a vacancy shall occur by death, resignation, volunteer regi- or otherwise, among the field officers of said regiment, the fiUe'd.— r'.'s. c. offi'^'^r highest in command shall notify the brigadier-general 73, s. 59. thereof, who shall call the commissioned officers of said regi- ment together, at some convenient place, for the purpose of electing some one to fill said vacancy ; and may either detail some officer to superintend said election, or may make it the duty of the officer highest in rank that may be present to at- tend thereto, and transmit to him the returns of said election ; and the said general shall transmit the result of said election to the governor, who shall forthwith commission the officer so elected. t^onl'^concern- ^^- Every sccHon of this chapter relative to the infantry, ing infantry, which Can be applied to the govenmient and disciplining of tuiely,'"&c.— *'^^ artillery, light-infantry, grenadiers, or riflemen, or which K.S.o'.73,3.60. can by construction be applied to them or either of them, shall be in force for the government and disciplining of the artil- lery, light-infantry, grenadiers, and riflemen respectively. General courts- 61. The governor shall appoint general courts-martial for appointed ana the trial of major-gcnerals ; major-generals, each within his ''^'•^'•— I'- S- c. own division, shall appoint division courts-martial for the trial ' ' ' of brigadier-generals ; brigadier-generals, each within his own brigade, shall appoint brigade courts-martial for the trial of all oflicers above the grade of captain; and in like manner the colonel or commandant of each regiment or battalion shall appoint regimental or battalion courts-martial, for the trial of all commissioned olhccrs, under the grade of a field officer; in every case the olficer ordering the court-martial shall can.se the officer accused to bo arrested, to be furnished with a copy of the charges against him, and to be notified of the time and nffi fi place appointed for his trial. seiecte'^^.— K. ^^ 62. "When a court-martial is ordered, the officer ordering it S. C.73, s. C2. shall appoint the president, judge advocate, and provost-mar- Chap. 70.] militia. 419 slial, and, if it be a general court-martial, orders shall be issued to such divisions as in the opinion of the governor may most conveniently furnish the members thereof; if it be a division court-martial, orders shall be issued to such brigades as in the opinion of the officer ordering it may most conveniently furnisli the members thereof; if it be a brigade court-martial, orders shall be issued to such regiments in the brigade as in the opinion of the officer ordering it may most conveniently furnish the members of it ; and if it be a regimental com-t- martial, the otTicer ordering it shall appoint the members. 63. The president of a general court-martial shall not be Ofwiiatrunk under the rank of a major-general; and the court shall be ^l^j^ji'^J^^jj g composed of two brigadier-generals and ten field otTicers, as c. 73, s. 63. members, six of whom shall be of dilTerent divisions; the pres- ident of a division court-martial shall not be under the grade of a brigadier-general, and the court shall be composed of twelve field officers as members, six of whom shall be of a dif- ferent brigade ; the president of a brigade court-martial shall not be under the rank of a colonel, and the court shall be com- posed of twelve officers as members, to be taken from the brig- ade, none of whom shall be under the rank of captain ; the president of a regimental court-martial shall not be under the grade of a field officer, and the court-martial shall be com- posed of a majority of the officers of the regiment as members. 64. Whenever the commanding officer of a division, brig- Officers for ade, regiment, or battalion shall be ordered to furnish any re"uiarh-"de-*^ officer as a member or supernumerary of a court-martial, such t;)Ued.— R. s. officer shall be regularly detailed from the roster of the division, '^' '^' ^' ®*" brigade, regiment, or battalion, by the commanding officer thereof forthwith, after receiving orders therefor. Provided, that in case of sickness, inability, or absence of any officer whose turn it may be to serve on a court-martial, the detailing oflicer shall certify such circumstance to the officer who or- dered the court-martial, and detail the officer next in succes- sion. 65. Officers ordered to be detailed to serve on courts-martial How detailed, shall be detailed in the followins; manner : Brigadier-generals, ~^i ^- "■ '^' o o o s. 65. by the major-generals of divisions, from the division rosters; colonels, lieutenant-colonels, and majors, by the commanding officers of brigades, from the brigade rosters ; captains and subalterns, by the commanding officers of regiments and bat- talions, from the regimental or battalion rosters. 66. All courts-martial for the trial of otTicers shall be con- Courts-martiui stituted of a president, judge advocate, and provost-marshal, '"J^^' "stitiit- together with the number of members prescribed by the pro- 73J s. cs." visions of this chapter; and the officer ordering a court-martial may, at his discretion, order a number of officers to be detailed as suiK'rnumeraries, in addition to those intended to serve as members, to attend the organization thereof, and in case there should be any vacancy, the judge advocate shall fill such vacancy from the supernumeraries, beginning with the highest in grade and proceeding in regular rotation. 420 MILITIA. [Chap. 70. Officers of 67. All officers on a coiu't-martial shall take rank by sen- lioNv to"nluk.' ioi'ity of commission, without regard to corps; and before any To be sworn.— court-martial shall proceed to the trial of any officer, the judge 67. ''^' ''■ advocate shall administer to the president and each of the members the following oath: — "You, A. B., do swear that you will well and truly try and determine, according to the evidence, the matter now before you between the State of North Carolina and the prisoners to be tried, and that you will duly administer justice according to the militia laws of North Carolina, without partiality, favor, or atFoction ; and yon do further swear, that you will not divulge the sentence of the court, until it shall be published by the proper authority; neither will you disclose the vote or opinion of any particular member of the court, unless you are required to give evidence thereof as a witness by a court of justice, in due course of law : so, help you God." And the president shall administer to the judge advocate the following oath : — " You, A. B., do swear, that you will faithfully and impartially discharge the duty of judge advocate on this occasion, as well to the State ns to (he accused ; and that you will not disclose the vote or opinion of any particular member of the court, unless required to give evidence thereof as a witness by a court of justice in due course of law, nor divulge the sentence of the court to any but to the proper authority, until it shall be duly published by the same: so, help you God." Witnesses how 68. The judge advocate of any court-martial, constituted ii. S. c. isjT. according to the provisions of this chapter, may issue a sum- 68- mons, in the nature of a subpoena in criminal cases, directed to the provost-marshal, to summon witnesses for the State, and the accused ; and the persons summoned by him shall be bound to attend and give evidence before the court-martial, under the penalty of forty dollars, to be recovered by the party aggrieved, unless the witness can prove his inability to attend. How sworn.— 69. All witnesses shall be sworn by the judge advocate, E. S.c. 73,s.60. before they give their evidence, as in criminal cases, accord- ing to the following form: — "You, A. B., do swear, that the evidence you will give the court in the case between the State and C. D. shall be the truth, the whole truth, and nothing but the truth : so, help you God." rtuies for pov- 70. All ti'ials by court-martial shall be carried on in the day- oourts-martial. time, between the hours often o'clock in the morning and five o'clock in the evening; and when the votes shall be called for on any question, the judge advocate shall begin with the youngest in commission, and proceed regularly to the oldest. And at all courts-martial, unless two thirds of the members agree that the accused is guilty, the judge advocate shall record his acquittal. And all courts-martial, authorized and ap- pointed in pursuance of the military laws of the State, shall liave full power and authority to preserve order during their session, and may imprison in the county jail, for the space of Ch.VP. 70.] MILITIA. 421 eight hours, all persons who shall, in the presence of the court- Penalty on offi- martial, behave in a disorderly and contemptuous manner, attend"— if 's None but a commissioned otticer shall sit in any court-martial, c. 73, s. 70.— and if any officer shall fail to attend any court-martial, when is***, c. 38, s. 4. notified so to do, he shall be fined, if above the rank of colonel, not less than twenty dollars ; if of the rank of colonel and above that of captain, not less than fifteen dollars ; if of the rank of captain and under, not less than ten dollars, unless he renders a sufficient excuse, to be judged of by the court-martial from which he may be absent ; and if any officer shall take his seat in court-martial without being in uniform, he shall be fined, at the discretion of the court, not to exceed five dollars, unless he furnishes said court a sufficient excuse for such delinquency. 71. The judge advocate, upon all trials, shall state impar- Dutyof judje tially to the court the evidence, both for and against the ac- s. c?T3,'*s77i! cused, shall take in writing the evidence, both for and against the accused, and minute down the proceedings of the court, all of which, with the judgment or sentence of the court there- upon, authenticated by his signature and that of the president of the court, with the papers read at the trial, or copies thereof certified by him, he shall transmit under seal to the officer who ordered the court, and all motions and objections to evidence, whether on the part of the State or the accused, and the opinion of the judge advocate on questions of law, made at the trial, shall be stated in writing, and the statement of the com- plaint and the defence shall be made in writing, so that a full view of the trial may be had by the officer, whose duty it is to approve or disapprove of the proceedings; and all the original proceedings and judgments or sentences of all courts-martial, appointed according to the provisions of this chapter, after having been approved or disapproved by the officer ordering them, shall by him, as soon thereafter as convenient, be trans- mitted to the adjutant-general of the State, to be deposited and preserved in his office; and the party tried by any court- martial, as aforesaid, upon request by himself, or by any per- son properly authorized, at the adjutant-general's office, shall be entitled to a copy of the original record, certified as afore- said, of the proceedings and sentence of the court, he paying reasonably for the same. 72. When any officer shall be arrested and notified to attend Troceedincs any court-martial, which may be ordered for his trial, and shall nfreMeVre-'"* refuse or neglect to attend the same, the said court shall take fusing to at- up the charges and specifications alleged against him, provided c?'73 7^72. he has been served with a copy thereof, and proceed to trial in the same manner as if he were present. 73. If any person shall wilfully and corruptly swear falsely Perjury before before any court-martial, touching and concerning any matter ™rl*s"™?3^' or thing cognizable before such court-martial, he shall, on con- s. 73. viction thereof, be liable to the pains and penalties of perjury; and in all cases, to delinquents and witnesses, oaths shall be 36 422 MILITIA. [Chap. 70. administered by the judge advocate or presiding officer of said court-martial. For what, offi- 74. Dishonest or ungentlemanly conduct in an officer shall — R?sVc!73 s. ^^ punished by cashiering, and disabling him from ever hold- "*• ing a military commission. Detachments 75. Upon any requisition by the United States for a detach- IJiiited State ™^"t ^^ ^he militia from this State, every captain of infantry service. — R. shall enter upon his roll all able-bodied free white men, be- S. c. 73, 8. 75. tween the ages of eighteen and forty-five years, except such as are exempted by the second section of the act of congress of one thousand seven hundred and ninety-two, and except the judges of the superior courts of law and equity, and ministers of the gospel, regularly ordained, within his company district, and they shall be subject to draft. Provided, that notiiing in this chapter shall be understood to subject persons, heretofore exempted, to perform ordinary militia duty : and nothing herein contained shall be construed to conilict with the provisions of the third section of this chapter. Substitutes re- 76. Each captain or commanding officer of a company of cf^s^.Te. " ' rnilitia, detached as part of the requisition under the authority of the United States, shall receive and enroll in the place and stead of any person drafted to serve in such company, any able-bodied free white citizen to serve as a substitute for such persoti so di-afted. Vacancies in 77. If any commissioned officer, under the grade of a field under rank of officer, appointed to command in any detachment from this field officers, State, Under the authority of the United States, shall die, re- — R.™.''c.'73 sign, or remove out of the regiment to which he belongs, the s- ?7. colonel commandant of the regiment, to which such officer belonged, shall recommend a proper person, resident within the bounds of such regiment, to be commissioned by the gov- ernor to fill such vacancy. A militia-man, 78. In all cases where a militia-man shall have performed a exompt,''&'c!^' *®'^™ °f service, either as a volunteer or drafted militia-man, unless, Jec— whether upon the requisition of the United States or of this K^S. c. 73,s. State, he shall not be hable to stand a second draft, until the whole of the militia witliin his company district shall have performed a like term of duty. PenaUy for re- 79. When militia-men are ordered out on duty in aid of the d"uty°when or- civil authority, either to guard a jail or for any other purpose, deredoutby and shall neglect or refuse to attend, agreeable to orders, each — ^K. s!c. "3,^ i'^"^'^ shall be fined, at the discretion of his company court- s' 'i'J- martial, not exceeding five dollars for each day he shall fail to do duty. Seven justices 80. In all cases of insurrection among slaves or free per- mliitiain sons of color either in any county of this State, or in an ad- iiivasions or in- joining State, or in case of invasion, seven iustices of the surrections. — •" '^ , • ji . • -i. j. xl ■ i- R. S. e. 73, 8. peace, deeming the emergency to require it, may at their dis- 8"- cretion require in writing of the commanding oflicer of their county to call out the militia under his command, and any volunteer company or companies in said county, in the ab- Chap. 70.] mlitu. 423 sence of the officer who is entitled to the command, to sup- press or repel such insurrection or invasion, or to protect the inhabitants of their county from the danger to be apprehended; and may again require of the said officer to dismiss his men when they think the danger is over, and the commanding offi- cer may dismiss in like manner. 81. The commanding officer forthwith shall order out the Duty of com- militia, in the way he shall judge best to effect the purpose ™'^';'|i'« Ijtii- desired; he may make such contracts, as he may thiiik most requisitiun.'- to the interest of the State, for the requisite ammunition, and f^ S-"^ "a. *• appoint some one a commissary to provide the necessary rations for the subsistence of the men while in service, and immediately on the discharge of the men, the commanding officer may dispose of any surplus ammunition or provis- ions, for the benefit of the State ; and all expenses hereby incurred shall be properly certified by said officer and forward- ed to the governor, and shall be paid by the State after under- going an examination and approval by the governor, treasurer, and comptroller, who shall be a board for that purpose. 82. The commanding officer of any regiment, as soon as he Commanding has called out the militia under the provisions of the eighty- outftoMtuy first section of this chapter shall immediately send an express his superior." to the brigadier or major-general of his brigade or division, in- forming him of that fact, and of any other official facts he may be in possession of, and continue to do so from time to time ; and the brigadier or major-general shall immediately apprise Superior to no- the governor, either by express or mail, as he may judge the emor''l^E% emergency requires, of all the circumstances ; in the mean time c. 73,'s. 82.' such general officer shall pursue the most effectual measures for repelling such invasion, or suppressing such insurrection, and the militia thus called out shall be armed according to law. 83. When there may be outlawed or runaway negroes, com- Three jiistices mitting depredations, or in any way alarming the citizen of ™?y.°'''^^"^""' any county, or where the guarding of a jail is necessary, three press ou"! a wed, justices of the peace, certifying the same in writing and re- "[^^g'^^R-'s questing the officer in command of their county, such officer c.^m.^'s. 83. shall effect the object set forth in said request of the justices, and the expenses of the militia so called out, shall be paid by the court of the county, who may lay a sufficient tax to pay said militia, at the same rates as the regiilar troops of the United States are by law entitled to, when in actual ser- vice. 84. The militia of the State, both officers and soldiers, when r■^y of miiitii., called into the service of tiie State, shall receive the same pay i" service— R. and rations, as when called into the service of the United '^^ °' "''' ^*" States. 85. Every officer who shall refuse or neglect, on call or alarm punishment given, to appear at such times and places as shall be appointed for refusing to by his commanding officer, shall, on conviction before a court- orKngh-en. martial, be cashiered and rendered incapable of ever after hold- —^- S- c.^rs, 424 MiLiTu, [Chap. 70. ing a military appointment, and be further liable to pay the sum of forty dollars, to be collected, as herein directed; and if a non-commissioned olFicer or private, he shall forfeit and pay the sum of ten dollars. If any person do not march against the enemy, when commanded, by himself or substitute, or shall refuse or neglect to do his duty or perform the services he is requested to perform by his officer, or quit his post, de- sert, or mutiny, the commanding officer of the regiment or corps shall order a court-martial for the trial of such ofl'ender; the members when met shall individually, before they proceed, take the following oath : " I swear well and truly to try and determine, according to the evidence of the matter before me, between the State and the person now to be tried : so, help me God;" and they shall, on trial and conviction, order pun- ishment on the ofl'ender, according to the articles of war es- tablished for the regulation of the army. Provided, such punishment shall not extend to sentence of death, except in case of desertion to an enemy, or mutiny. Punishment for 86. If any non-commissioned officer or private militia-man, S. c. 73 sTse. while in the pay and service of the State, shall wilfully desert the service or abandon the post assigned to him, without being regularly discharged, or permitted by an officer duly author- ized for that purpose, such non-commissioned officer or pri- vate, being thereof convicted by a court-martial having juris- diction of the ofi'ence, shall be adjudged to have forfeited the pay and emoluments due to him at the time of his desertion, and be subject to a fine not less than twenty and not exceed- ing fifty dollars, and imprisonment not exceeding six nor less than one month, at the discretion of the court-martial ; and, furthermore, turned over to serve as a private soldier in the regular army of the United States, at the discretion of the court-martial, not exceeding double the term of time which he had been called out to serve in the militia of the State. Field officers of 87. Whenever any regiment of volunteers out of the militia m1n;i?in/e7-'"of the State, shall be caUed into the service of the United vice of u. S., States, the field officers of such regiment shall be chosen and •n^ieu'eiret^ed. elected by the persons, private soldiers as well as officers of — 1S4C, c. 37, the companies who compose the regiment ; which election '■ ■ shall take place at their rendezvous, a majority of those com- posing the regiment and voting being requisite to a choice of such field officers. Election, when 88. As soon after the arrival at the rendezvous of the com- dueVed.— 1846 P^'iies Composing said regiment, as the captains of the com- c. 37, 6. 2. panics, or a majority of them, shall deem proper, they shall call together the officers and privates of the regiment, and pro- ceed to the election of field officers of the same, the captains superintending said election, and the voting to be by ballot. Certificate of 89. Upon such an election taking place, the captains of the '^•'^ hcd field offi- Companies composing the regiment, or a majority of them, cersbycap- shall furnish every field officer so elected a certificate stating tains. ^ijg f^.^ Qf jjij. election, and the oflice to which he is elected ; Chap. 70.] militia. 425 find upon snch certificate being presented to the governor, he shall issue to such person the commission to which his rank entitles him. Provided, howecer, that if any regiment shall Return-, imw be required by the general government to rendezvous at ditter- "citi',^,ont'rra- ent places, each division thereof may vote at their respective do^vous iit .lif- places of rendezvous, under the superintendence of the cap- lYiT'c^'arili tains present, and they shall transmit to the governor the result of such election ; and the persons having the greatest number of votes given, shall be commissioned by the governor, accord- ing to the rank to which they are respectively entitled ; and if any two or more of the persons voted for should have the highest and equal number of votes, the governor shall select one of the persons to fall the office so voted for. 90. When any regiment having rendezvoused at the same \^Tien there is place, and having proceeded to vote as herein before provided ; fson '" vernor and there should be a tie, the captains shall transmit to the to select.— governor the result of such election, and he shall select from ■'^''^' "•^"'^■*' those having the highest and equal number of votes, the per- son to fill such office. 91. Whenever any volunteer company may be formed, con- How voinntenr sistiiig of the number required by law for the formation of |^°"P^"j!';*J"''-^' volunteer comjmnies, the captain of such company shall make rated.— i848,c. known in writing such fact to the colonel commandant of the ^^i^-^- regiment in which such company may be formed ; and if the colonel shall be satisfied that the statement made by said cap- tain is true, and that said company is uniformed and equipped in all respects as required by law, except as to arms, he shall give such captain a certificate in writing, setting forth the fact; and every such company shall be entitled to make all such by-laws, rules, and regulations for their government as may be deemed necessary, not inconsistent with the constitution of the State or of the United States ; and shall be invested with all the rights, powers, and privileges usually incident to and belonging to volunteer companies which are incorporated. Provided, such company shall, as such, perform military duty at least four times every year. 92. Any person, between the ages of eighteen and thirty- Privates, by five, who shall join any regularly constituted company of vol- '™ •^hri^idf" unteers, whether of infantry, cavalry, grenadiers, artillery, or company, t-x- riflcmen, and shall serve as a volnntcer in such company, for a ™Py '""'."_["'" period of ten years, shall thereafter be exempt from military iS4S,c.5,s s- 4. duty, except in cases of insurrection or invasion. 93. Every commissioned officer (major and brigadier-gen- Cnmmi=sionpd eral excepted) who shall equip himself as the law directs, and JJ^'(,'iJ^^,t'"v'^.'.",.s> shall perform military duty as a commissioned officer, for the service.— iS4S, period of eight years, shall thereafter be exempt from military '^^ ^"''^" ^" duty, except in cases of insurrection or invasion. 94. In the absence or death of the brigadier-general of any Arms,iiowiiro- brigade, the certificate of the highest officer in command of ™J,'^_g^'_'™._, the militia of any county where there may be formed a volun- dead or absent. tecr company, shall be lawful for the purpose of enabling the ~^^"*' "^^ -^• 36* 426 MILLS AND MILLERS. [ChaP. 71. governor to supply such company with arms and accoutre- ments, under the same rules and regulations as are now in force. 95. Nothing herein contained shall be construed to repeal mi re- ^"7 private act of the General Assembly, incorporating, grant- ''"'■3 'si?" ^' "^° privileges to, or regulating particular corps, whether of the ' *■ ■ volunteers or of the ordinary militia. Private acts in relation to mi- litia, not re- Sect. 17. 11 Ire. 605. CHAPTER 71. MLLS AND MILLERS. Section 1. What shall be public mills. 2. Owner on one side of a stream, how to get license to build a mill. Not to create nuisance. Proceedings "when stream lies between two coun- ties. 3. Report to be recorded, and assessed value paid into office. 4. Mill, within what time to be begun and finished. 5. Time for inAxnts, &c., to rebuild mills. 6. Millers to grind according to tui-n. What toll may take. 7. Measures to be kept in mills. False measures indictable. 8. Persons injured by mills, how to pro- ceed for damages. 9. Tenant may make known owner, and petition to be served on him. 10. Not disclosing owner, deemed owner. Owner may appear and defend. Sectiox 11. When tenant and owner become de- fendants, what judgment rendered. If against both, they shall have con- tribution. 12. Upon the hearing, what proceedings for assessing damages. Verdict of jur}', how made and returned. To bind for five years, unless, &c. No- tice on tenant in possession, suffi- cient. Jurors may be challenged. 13. Provision when damages assessed as liigh as twenty dollars. 14. Costs, where no damage, or under five dollars, how paid. Execution to issue yearl}- for damages. 15. Pay of jurors. 16. Upon appeals, trial to bo at bar. Plaintift" appealing to pay costs, if he recovers no more. What shall be 1. EvERT water grist mill, steam mill, or windmill, that S?s! cl^'il's'.I s'l'^li g''i»J for toll> shall be deemed to be a public mill. Owner on' one 2. Any person willing to build a water-mill, who hath land how wlefii-™' only on one side of a stream, shall exhibit his petition in the cense to build a county court, and therein set forth who is the projirietor on 74', s.T, 4'. "^ the opposite side of said stream ; whereupon a summons shall issue, with a copy of the petition, to the proprietor, to appear at the next court and show cause, by answer thereto, why the prayer of the petition should not be granted; and if, upon the hearing of the matter, the court shall allow such mill to be built, they shall order four freeholders to view, lay olT and value, on oath, to be admin i.stcred by any justice of the peace, an acre of the land of such proprietor, and also an acre of the Chap. 71.] mills and millers. 427 land of the petitioner opposite thereto, and to report their assessment and proceedings to the next court ; and if it take not away liouses, orchards, gardens, or other immediate con- veniences, the court may, in their discretion, allow either the petitioner or the proprietor to erect such mill at the place pro- posed, and shall order the costs to be paid by the person to whom leave shall be granted. Provided, hoivever, that leave Not to create to erect a mill shall in no case be granted, so as to overflow p"oc"e(ll'i another mill or create a nuisance to the neighborhood. And when^stleSa provided further, that when the stream shall be the boundary I'.vo coi^u", line between two counties, the petition shall be filed in the "^""^ *'' superior court of the county in which the petitioner resides. 3. When such leave shall be granted, the court shall order Export to be the report to be recorded ; and the person obtaining leave shall SsesfedVaufe pay into the oflice of the court, for the use of the owner, the paifi into office. assessed value of the land, and thereupon he shall be vested Zf.' ^' ''' ^*' with a fee-simple title in such land. 4. The person to whom leave shall be granted shall, within ^™, ^vithin one year begin to build such water-mill, and shall finish the Cu,!'and"fi^n^ same within three years; and thereafter keep it up for the i-i"'-''- — R- S. 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 mill, for reasons approved by the court, be enlarged. 5. If any water-mill, belonging to any person not being of Time for in- age,fcme covert, non compos wew^w, or imprisoned, be let fall, rSifmiu"— burnt, or otherwise destroyed, such person and his heirs shall R- S- c. 74, s. 6. have three years to rebuild and repair the same, after the dis- ability removed. 6. All millers of public mills shall grind according to turn. Millers to grind and shall well and sufficiently grind the grain brought to their ?u™.'''"°^'° mills, if the water will permit, and shall take no more toll for What toll may grinding, than one eighth part of the Indian corn and wheat, ^i^j;'^'''-^-''- and one fourteenth part for chopping grain of any kind ; and every miller and keeper of a mill making default therein shall, for each offence, forfeit and pay five dollars to the party in- jured. Provided, nevertheless, that the owner may grind his own grain at any time. 7. All millers shall keep in their mills the following meas- Measures to be ures, namely, a half bushel and peck of full measure, and also Kaise'mSres proper toll dishes for each measure; and every owner, by him- iiuUctabie.— K. self, servant, or slave, keeping any mill, who shall keep any '^" '^' '■'' °" ^" false toll dishes, contrary to the true intent and meaning of this chapter, shall be deemed to be guilty of a misdemeanor. 8. Any person conceiving himself injured by the erection Persons i.ynred of any grist mill, or mill for other useful purposes, may annlv I'ymi"* '""vto by petition to the court of pleas and quarter-sessions of the :iainau.;s.-R. county in which the land endamaged is situate, setting forth ^- "■ ■'^' ^- "• in what respect he is injured by the erection of the mill ; a copy of which petition shall be served on the owner or tenant in possession of the mill, ten days previous to the court. 428 MILLS AND MILLEKS. [CnAP. 71. Tenant mny 9_ "When a copy of the petition shall have been served upon make known ,, , , . ' "^ . ' , , , ,, , rr i ■. ,!■ o-vvner, and pe- the tenant in possession, and he shall make anidavit, setting tition to be forth the name of the owner to whom he is tenant, a copy shall — R. S. c. 74, issue and be served on such owner, if he reside in the State ; °- 1°- but if he shall be a non-resident, or cannot be found, publica- tion for six weeks shall be made in some newspaper printed in the State, for him to appear and become defendant. Not disclosing 10. If the tenant shall fail to file such affidavit, he shall be owner! '"'^'^ deemed the owner of the mill, unless the owner shall appear Owner may and apply to become a party, when he shall be allowed to do ieud.— R.°S. c^. so upon entering into a bail-bond, in such sum as the court 74, s. 11, 12. may direct, payable to the petitioner ; and the suit shall stand against the tenant and the owner. men tenant H. Whenever the tenant, or the tenant and owner, shall be come defend- Hiade defendant in manner aforesaid, the court shall proceed ants, what in the cause and determine the same as to right and justice ■(imei™ ™°" shall appertain ; and if judgment be given for the petitioner, he If "pijis-t both, shall recover his costs, and have execution to sell the mill and contribution!— appurtenances, and the property of the defendant, or a sufii- R. S. c. 74, s. ciency to satisfy his judgment and costs.' Provided, that after the satisfaction of the judgment, either of the defendants may have such contribution in equity, as may be just and proper against the other and his representatives, according to the respective interest of each one, and the proportion of the recov- ery which each one ought to bear. in''°whS''ro'^" ■'^^' ^^ "^P*^" ^^^ hearing of any petition, the court shall ad- cee'dings for as- judge the petitioner entitled to relief, they shall order a writ to sessmgdama- |jg issued to the sheritF of the county, commanding him to summon a jury of twenty-four freeholders, unconnected with the parties by consanguinity or affinity, and entirely disinter- ested, no one of whom shall be the owner or part owner of any grist mill, or mills for other useful purposes, to meet on the premises, on a certain day, of which he shall give each party five days' notice in writing; and the jury, who shall be formed by drawing twelve out of the twenty-four, shall take an oath, (which the sheriff or deputy may administer,) that they will well and truly inquire whether any damage hath been sus- tained by the petitioner, by reason of the matters complained of; and if any hath been sustained, that they will impartially, according to the best of their judgment and ability, assess the amount, which the petitioner ought annually to receive from Verdict of Jury, the owner or tenant of the mill on account thereof Thereupon returned.^'"' they shall view and examine the premises, and hear the evi- dence on both sides; they shall then retire to themselves and make up their verdict as to the sum which the petitioner is entitled to receive, as an annual compensation for his damage by reason of the erection of the mill complained of, reduce the same to writing, sign, and deliver it sealed up to the sherilf, to To bind fiirfive be delivered to (lie court at the next ensuing term : which ver- Sso. ' ' diet shall be binding between the parties for the term of five years from the filing of the petition, if the mill is kept up dur- Chap. 71.] mills a^td millers. 429 ing that time, unless the damages should be increased by raising tiie water or otherwise. Provided, that service of no- Notice on ten- tice, on the tenant in possession, of the meeting of the j ury ^j"^,'" ^'j^^f^'^j shall be sufficient notice to the owner; and that either party Jumrs may be shall be allowed to challenge jurors peremptorily or for cause, ij'"s'.™f74T as in the trial of other civil cases. 12, 1.3. 13. In all cases where the jury shall assess the yearly dam- Piovision age as high as twenty dollars, nothing in this chapter contained rssessed^as""^ shall be construed to prevent the petitioner, his heirs or assigns, li's'' ^^ twenty from suing as heretofore ; and in such cases, the verdict of the c.°74,'sl"T4.' jury and judgment thereon, shall be binding only for the year's damage preceding the filing of the petition. 14. If the verdict shall be that the petitioner hath sustained Costs, -n-hen no no damage, he shall pay the costs of his petition ; but if in der"fivedoito°^ favor of the petitioner, he may have execution against the de- 1'°^^ P^i^i- fendant for the amount of one year's damage preceding the filing of the petition and for all costs. Provided, that if the damage assessed do not amount to five dollars, the petitioner shall recover no more costs than damages. And if the defend- Execution to ant do not annually pay the petitioner, his heirs or assigns, damages.— R. before it falls due, the sum assessed as the damages for that S- <^- '^*' ^- 1*- year, the petitioner, his heirs or assigns, may annually during the five years, at the same term that the petition was filed, sue out an execution against him, for the amount of the last year's damage, or any part thereof, which may remain unpaid. 15. Each juror shall be entitled to eighty cents per day, for Payofjurore. attending on the premises, and four cents for every mile he Z16. ' '^' shall travel to and from the place of trial, an account of which he shall render on oath to the sheriff to be returned to court. 16. Wliere either party shall appeal to the superior court, ^'P'^" appeals, the trial in that court shall be had at bar: And if the plaintiff!™.'"''""" shall appeal, and fail to recover higher damages than were '"J'''!'♦jJ^^P- awarded by the jury on the premises, he shall pay the costs of coTts"ff he*!^ the aupeal. covers nomore. ^^ —II. S. c 74, s. 17. Sect. 2. Ifmsa not to be valued, 1.3 Ire. 109. Sect. 8. Tli!s the only remedy, 11 Ire. 106. 2 Car. L. R. 245. Who may sue, 1 1re. 20, 5 lb. 333; one in posseisiun, 10 Ire. 103. Who may be sued, 7 Ire. 24. JJeath of defend- ant, 2 JIur. 254, 4 Hawks, 73. Sect. 13. Plaintiff a criditoruitlnnstni. frauds, 1 D. & B. 221. Rule of damages, 1 Ire. 232, 1 D. & B. 339, lb. 492, 2 lb. 50. Efful of jmUjment, 12 Ii'e. 341. " Uow to proce&d after fife years, 11 ke. 104. 430. MONEY REMAINING, ETC. [Chap. 73. CHAPTER 72, MINES. Lessors of gold mines not partners with tlaeir lessees, unless they so contract. Lessors of gold No lessor of property, real or personal, for gold mining mines not part- p^j.pQggg although the lessor may receive a sum uncertain of ners with thoir t;r ' o J ■ j ^- i-u lessees, unless the proceeds Or net profits, or any other consideration, which, tract— R°s" though Uncertain at first, may afterwards become certain, shall 75, S.6. " " be held as a partner of the lessee ; nor shall any of the legal or equitable relations or liabilities of copartners exist between them, unless it be so stipulated in the contract between the lessor and lessee. CHAPTER 73. MONEY REMAINING IN THE HANDS OF CLERKS AND OTHERS. 1. Clerks, &o., of all courts to make statement of monej-s remaining in hand three years. Unless detained by order of court. And publish the same at court house door. To whom statement sent. 2. Moneys to be paid to certain public officers. 3. Clerks failing to render account, &c.. Section to be sued. Penalty 5100. 'Where suit brought. 4. Clerks, &c., admitting money in hand, and failing to pay, how proceeded against. 6. Sheriff to account for such moneys, iu like manner as clerks. C. Jloneys may be used by the public, till called for by owners. Clerks, &c., of 1. EvERY clerk of the county court, superior court of law, ^^' k^Yt^ate^ clerk and master in equity, and clerk of the supreme court, at mentofmoncys the first session of the court of which he is clerk, which shall hand "hroe^" be after the first day of August iu every year, siiall produce years ; unless to said court a statement, on oath, of all moneys remaining in dor"of TOurt."'" his hands, which may have been paid into his office 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 And publish the person to whom the same is payable ; a copy of which the same at CO. gj-j^^gfjjgj^j he shall forthwitii post up in his office, and at the court house door ; and if there be no such moneys in his To whom state- iiands, he shall make affidavit of the same; which statement mont sent.— K. ^^ affulavit, if made by a clerk of the supreme court, the court ' ' ' " ' shall cause to be transmitted to the public treasurer and comp- Chap. 73.] money remaining, etc. * 431 troller ; if made by a clerk of the county or superior court, or a clerk and master in equity, the judge or chairman of the court, before whom it is made, shall cause the same to be transmitted to the officer appointed to receive and disburse the county funds, on or before the first day of January in the next year. 2. The said officers shall, on or before the first day of Jan- Jinnevs to be uary in every year after the foregoing statements are niade, '^JJ'iJijJ.*'^^''^'™ account with and pay to the persons entitled to receive the — li. S. c 7c, s. same, all such balances reported as aforesaid to be in their ^' hands ; that is, the clerk of the supreme court shall pay to the public treasurer, and the other clerks shall pay to the receivers of the county funds of their respective counties. 3. If any clerk, or clerk and master, shall fail to comply Clerks failing with the duties herein enjoined, he shall be liable to be sued ^cm,Tt"'lc " to for the moneys in his hands; and, moreover, shall forfeit and be sued. ^' pay for every offence one hundred dollars, to be recovered in ''"""y *^''''- 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 ,„ ^ default of the clerk of the supreme court, suit shall be brought brought.— R. by the public treasurer in the superior court of Wake county, ^- '^- "^' ^- ^■ and the recovery shall go to the public treasury. 4. If any of the said officers shall fail to pay any such Clerks, &e., money, by him admitted to be due, on or before the first day e''7i'/h""(r"'"" of January in every year as aforesaid, such officer shall be pro- and failing 'to ceeded asfainst by the public treasurer, in any court of record P^^j ^°'" P."""" .^^ J , ,-r * t <. ceeded affamst. in the fetate ; or by the proper county othcer, jn the courts ot — R. s. cT 76, s. his own county, in the like manner as against defaulting reve- *• nue officers. 5. Every sheriff, at the same time and in like manner as is Sherifrto ac- required of clerks of county courts, shall render and publish mouevl'"^in"i'ke an account of moneys which may have been in his hands for manuer'as the period of three years, and account for and pay the same c.Te^sTe to the receiver of county funds, under the same penalties for default, and recoverable in like manner, as are provided in re- spect of said clerks. 6. The money aforesaid, while held by the clerks and sheriffs, Monersmaybe shall be paid on application, to the persons entitled thereto ; pufj}i'?ViltU and after it shall cease to be so held, it may be used as other called for by revenue, subject, however, to the claim of the rightful owner, c.^re^'^s T't ^ 432 NAMES. — NOTARIES. — OATHS. [ChAP. 76. CHAPTER 74. NAMES. Naraes changed by superior courts. Names changed Ant person desirous of chnngiiig his name, may have it bysup'rraurtR. ^Qj-jg ]jy petition in any superior court : and the court, at the terra of filing the petition, or afterwards, may decree the same. CHAPTER 75. NOTARIES. Notaries ap- pointed by gov. Qualified in CO. court. — R. S. 0. 78, s. 1. Duplicate com- mission issued — one part filed in oflScc of CO. court. Clerics and c. and m. may act as notaries, and certify under seal of office. — U. S. c. 78, s. 2. Section Section 1. Notaries appointed by governor. Qual- 3. Clerks and c. and master may act as ified in county court. notaries, and certify uudcr seal of 2. Duplicate commission issued. One office. part filed in office of county court. 1. The governor may, from time to time, at his discre- tion, appoint one or more fit persons in every county, to act as notaries; who, on exhibiting their commission" to the county court of the county in which they are to act, shall be duly qualified, by taking before said court an oath of oifice, and the oaths prescribed for officers. 2. The governor shall issue to each a duplicate commis- sion, one part whereof shall be deposited with the clerk of the court, and filed among the records, and he shall note on his minutes the qualification of the notary. 3. The clerks of the county and superior courts, and clerks and masters in equity, may act as notaries-public, in their sev- eral counties, by virtue of their office as clerks, and may certi- fy their notarial acts under the seals of their respective courts, whenever it may be desired. CHAPTER 76. OATHS. Sectios 1. Oatlis, how administered. 2. Persons scrupulous of laying bands on the Scriptures, sworn witli uplifted hand. Section 8. Quakers, Moravians, Dunkors, and Mennonists to be affirmed. 4. Oaths or affirmations to support the coustitutions of the United States Chap. 76.] OATHS. 433 Section and of this State, taken by all offi- cers. 6. Oath to support the constitution of the United States. 6. Oaths of sundry persons: — (1.) -Administrator. (2.) Attorney at law. (3.) Attorney-general and solicitors for State and county. (4.) Book debt, (o.) Book debt oath for an executor or administrator. (6.) Clerk and master in equity. (7.) Clerk of supreme court. (8.) Clerk of superior court. (9.) Clerk of county court. (10.) Commissioners allotting a year's provision. (11.) Dividing and allotting real es- tate. (12.) Commissioner of wrecks. (13.) Comptroller. (14.) Constable. (15.) Coroner. (16.) Entry-taker. (17.) Executor. (18.) Finance committee. (19.) Governor. (20.) Inspector of flour. (21.) Inspector of tobacco. (22.) Inspector of other articles than tobacco or flour. (23.) Judge of supreme court. Section (24.) Judge of superior court. (25.) Foreman of grand-jury. (20.) Gr.aud-jurors. (27.) Officer attending grand-jury. (28.) Officer ch,arged with a jury. (29.) Petit-jury in a capital case. (30.) In criminal cases not capital. (31.) Jury in civil cases. (32.) Jury haying off dower. (33. ) Jury to assess damages for over^ flowing lands. (34.) Jury to lay off and assess dam- ages for road. (35.) Justices of the peace. (36.) Processioner. (37.) Public treasurer. (38.) Ranger. (39.) Register. (40.) Secretary of State. (41.) Sheriff. (42.) Standard-keeper. (43.) Strays, valuers of. (44.) Surveyor for the county. (45.) Tobiicco picker. (46.) County trustee. (47.) Witness, to go before grand-jary. (48.) Witness, in a capital case. (49.) Witness, on a traverse. (60.) Witness, in civil cases. (51.) Witness, to prove a will. 7. Deputies to administer oaths wherever their principals may. Whereas, lawful oaths for the discovery of trath and establishing right, are necessary and highly conducive to the important end of good government ; and being most solemn appeals to Almighty God, as the omniscient witness of truth, and the just and omnipotent avenger of falsehood, such oaths, therefore, ought to be tal^en and administered with the utmost solemnity. Wherefore it is enacted, 1. That judges and justices of the peace, and other persons Oaths, how ad- ■who may be empowered to administer oaths, shall (except S''"'''*^''^'^-— in the cases in this chapter excepted,) require the party '' ' '^' ^'^^^^■ sworn, to lay his hand upon the holy evangelists of Almighty God, in token of his engagement to speak the truth, as he hopes to be saved in the way and method of salvation pointed out in that blessed volume ; and in further token, that, if he should swerve from the truth, he may justly be deprived of aU the blessings of the gospel, and made liable to that vengeance which he has imprecated on his own head ; and, after repeat- ing the words, " So help me, God," shall kiss the holy gospels, as a seal of confirmation to the said engagements. 2. When the person to be sworn, shall be conscientiously persons .sent* scrupulous of taking a book oath in manner aforesaid, lie P"'''"^ of lay- 37 434 OATHS. [Chap. 76. ing hands on shall be excused from laying hands upon, or toucliing the holy '!l^ '^"'•?th'u )' "O^P^l** 5 and the oath required shall be adtniiiistered in the imedVand'.— ' following manner, namely : he shall stand with his right hand -E. S.c. 79, s. jjf^gj ^^p towards heaven, in token of his solemn appeal to the supreme God, and also in token, that if he should swerve from the truth, he would draw down the vengeance of heaven upon his head, and shall introduce the intended oath with these words, namely : " I, A. B., do appeal to God, as a witness of the truth and the avenger of falsehood, as I shall answer the same at the great day of judgment, when the secrets of all hearts shall be known, that, &c." as the words of the oath may be. Quakcrs.Mora- 3. The solemn affirmation of Quakers, Moravians, Dun- k'ers!and Men- kers, and Mennonists, made in the manner heretofore used and nonists to be af- accustomed, shall be admitted as evidence in all civil and cTCs.'s!'' ^* criminal cases ; and in all cases where they are required to take an oath to support the constitution of the State, or of the United States, or an oath of office, they shall make their solemn affirmation, in the words of the oath beginning after the word " swear ; " which affirmation shall be as good and effectual to all intents and purposes, as if they had taken the oaths aforesaid. Oaths or affir- 4. Every member of the General Assembly, and every per- Ztae'con^t^ilson who shall be chosen or appointed to hold any office of tutionsofthe trust or profit in the State, shall, before taking his seat or andof thif' entering upon the execution of the office, take and subscribe state, taken by the following oath or affirmation: "I, A. B., do solemnly and -r^sTm sincerely swear (or affirm) that I will be faithful and bear s-4- ' ' ' true allegiance to the State of North Carolina, and to the constitutional powers and authorities, which are or may be established for the government thereof; and that I will en- deavor to support, maintain, and defend the constitution of said State, not inconsistent with the constitution of the United States, to the best of my knowledge and ability : so help me, God." Where such person shall be of the people called Quakers, Moravians, Mennonists, or Dunkers, he shall take and subscribe the follownng affirmation : " I, A. B., do sol- emnly and sincerely declare and affirm, that I will truly and faithfully demean myself as a peaceable citizen of North Carolina ; that I will be subject to the powers and authorities that are or may be established for the good government thereof, not inconsistent with the constitution of the State and the constitution of the United States, either by yielding an active or passive obedience thereto, and that I will not abet or join the enemies of the State, by any means, in any conspir- acy whatever, against the State; that I will disclose and make known to the legislative, executive, or judicial powers of the State, all treasonable conspiracies which I shall know to be made or intended against the State." Oathtosupport 5. AH members of the General Assembly, and all officers lionoflhe'"' who shall be elected or appointed to any office of trust or u. states.— R. profit withiu the State, shall, agreeable to act of Congress, take S. c. 70, 8. 6. ' Chap. 76.] oaths. 435 the following oath or affirmation : " I, A. B., do solemnly swear, (or affirm, as the case may be,) that I will support the constitution of the United States : so help me, God : " which oath shall be taken before they enter upon the execution of the office. 6. The oaths of office to be taken by the several officers Oaths of sun- and persons hereafter named, shall be in the words following dry persons. the names of said officers and persons respectively. ADMINISTRATOR, (1.) You swear (or affirm) that you believe A. B. died with- Administrator. out leaving any last will and testament ; that you will well and truly administer all and singular the goods and chattels, rights and credits of the said A. B., and a true and perfect inventory thereof return to this court at its next term ; and that all other duties appertaining to the charge reposed in you, you will well and truly perform, according to law, and with your best skill and ability: so help you, God. ATTORNEY AT LAW. (2.) I, A. B., do swear (or affirm) that I will truly and hon- Attorney at estly demean myself in the practice of an attorney, according '''''^' to the best of my knowledge and ability : so help me, God. ATTORNEY-GENERAL, AND STATE AND COUNTY SOLICITORS. (3.) I, A. B., do solemnly swear (or afTirm) that I will well ^"""^sfi;^," and ti-uly serve the State of North Carolina in the office of toTs br State'" attorney-general; (solicitor for the State — or solicitor for the ^" i . s 39 458 PATROL. [Chap. 83. CHAPTER 83. PATROL. Section 1. County courts may appoint patrol committee, wlio shall employ a pa- trol. Jlay also appoint a patrol. 2. Committee refusing to act, penalty. 3. Duties and powers of patrol. 4. Kules for, prescribed by court. Section 5. Cummittce may discharge patroUers and appoint others. 6. Patrol appointed by committee refus- ing to act ; penalty. 7. By court, refusing to act ; penalty. 8. Pay of patrol. Tax therefor. Duties and powers of pa^ trol.— R. S. Co. courts may 1. The county court of each county, if the court deem it committee,who necessary, shall, at the first court that may be held after the shall employ a first of January, in every year, or any subsequent court, ap- ^^ ™ ■ point a patrol committee of three persons, in each captain's district in said county, who shall employ a patrol of such number of persons as they may think necessary to patrol their pomtap^atroi. district. Provided, that nothing herein contained shall be — R. S. c. 86, construed to prevent the county courts from appointing such patrol as they may deem proper. ^f™™'i^'r ^' ■'^"y person, appointed one of the patrol committee, who penalty"— R. s! shall neglect to discharge his duties, shall pay a penalty of c. 86, s. 2. twenty -five dollars, to be recovered on motion to the court by the county solicitor and paid to the county trustee, in aid of the tax in support of the patrol. 3. The patrol shall visit the negro houses in their respective c. districts, as often as may be necessary, and may inflict a pun- c^Vl' ^■~"''^*^' ishment, not exceeding fifteen lashes, on all slaves they may find oft' their owner's plantations, without a proper permit or pass, designating the place or places, to which the slaves have leave to go. The patrol shall also visit all suspected places, and suppress all unlawful collections of slaves ; shall be dili- gent in apprehending all runaway negroes in their respective districts ; shall be vigilant and endeavor to detect all thefts, and bring the perpetrators to justice, and also all persons guilty of trading with slaves. The patrol thus employed, or appointed by the county court, or any two of them, shall have such powers as may be necessary to a proper discharge of the duties herein enjoined; and if, upon taking up a slave and chastising him, as herein directed, he shall beliave insolently, they may inflict further punishment for his misconduct, not exceeding thirty-nine lashes. Rules for, pre- 4. The county courts shall, prescribe all necessary rules for court— kT S. c. ^^® government of the patrol of the respective counties, and 80, s. 4. the patrol shall be subject thereto, under such fines and pen- alties as the court shall fix and direct. 5. The patrol committee shall have full power to discharge )ne or more of the ))airol, and when they may think it expedient. Com. may dis- charge, &c. — E.S. 0.86,6.6. Chap. 84.] pensions. 459 6. Any person, appointed by the committee one of the Patrol of com. patrol, who shall neglect to serve, shall be subject to a penalty i-efusins^ act, of twenty dollars, to be sued for by the patrol committee of He, s^'e. his particular district, and paid by them to the county trustee, in aid of the tax for the support of the patrol. 7. Any person appointed one of the patrol by the court, Appointed by who shall neglect to serve, shall forfeit and pay twenty dollars! f°^|;','; "^",^.,,t"- 8. The patrol shall receive such compensation for their -R.'t.^c.'te,'*'' services as may be allowed them by the county court; andj;/;„f t„, the court, a majority of the justices being present, may lay a Tak therefor.- tax not exceeding twenty-five cents on each taxable slave, to r| c^^sV' defray the expenses of the patrol. 20. ' ' "■ ' ' Sect. 3. Liabhfor malice, 1 Hawks, 418. Sect. 6. Minisiers not exempt, Bus. S9. CHAPTER 84. PENSIONS. Pensions allowed persons disabled in militia service, and their widows and orphans. Mode of procuring the same. Every person who may have been disabled by wounds in Pensions al- the militia service of the State, or rendered incapable thereby J{J'™3'|e^"'°°' of procuring subsistence for himself and family, and the mimia service widows and orphans of such persons who may have died, may ""'jo^.g'!^^^ apply to the court of the county in which such person, widow, oVpCns.'™ or orphan shall reside, and the court shall certify to the Gen- eral Assembly their distresses; and thereupon, such person Mode of pro- shall have an allowance by the General Assembly sufficient "'g'i'S^-/';,'^^ for one year's relief: and the allowance shall be continued 1838,' c! 25.- from year to year, so long as the court shall certify that such person, widow, or orphan continues under the description aforesaid: which certificate of court, countersigned by the speakers of the General Assembly, during the year of its meet- ing, and in every other year, by the governor, shall be a suffi- cient voucher in settling his public accounts, to any sheriff", collector, or treasurer, who may pay the same. 460 PILOTS. [CiLVP. 85. CHAPTER 85. PILOTS. Commissioners of Navigation for Cape Fear river yearly elected by citizens of Wilmington. How styled. To fill vacancies, and appoint a clerk. To establish, &c. fees of pilots. To have authority concerning navigation of the river, &c. Harbor master appointed. Pilot stations and pilotage, &c. regu- lated by commissioners. Pilots appointed by board. Bond given by pilots. Disputes between masters and pilots, decided by board. Warrant for pilot- age, forfeiture, &c., may be issued by one of the commissioners. Jurisdic- tion not to exceed sixty dollars. May summon witnesses, and admin- ister oaths. Stay of execution not allowed. Ap- peals allowed. Notice given when rates of pilotage altered. Number of boats to be prescribed for pilots. Bights of pilots as to Main and New Inlet bars of Cape Fear. Apprentices to be kept by pilots. Penalty on pilots not attending when requested. Proviso. Pilots refused, entitled to full pay. One third fees only, due to pilots in certain cases. Pilotage, when vessel deepened or lightened. Vessels, of what burden, and where, exempt from pilotage. Of sixty tons, coming into Cape Fear river for eoal exempt, if they hoist a prescribed flag. Outward bound coal vessels also. Penalty on cap- tains, &c. falsely hoisting flag of coal vessels. Penalty on coal vessels not raising flag. Pilotage of, not to be altered, &c. Commissioners of navigation for New- bern, Washington, and Kdenton, yearly appointed. Mode of appoint- ing. Vacancies, how filled. Section 22. Power of commissioners. 23. Commissioners of Washington, a body corporate. Their stj-le and powers. May provide for receiving persons in quarantine. Employ physician, &c. 24. Board of commissioners for Ocracock to be continued; to meet three times a 5'ear at Ocracock. To appoint pi- lots fur the bar, swashes, &c. To keep oflice at Ocracock. Fees paid for branches, how disposed of. Va- cancies, how filled. Commissioners to keep a journal, and take oath. Branches to expire in three years. 25. Commissioners of navigation for Car- teret, Onslow, and Hyde. Those of Carteret, a board for Old Topsail in- let, &c. Of Onslow, a board for Bogue inlet, &c. Of Hyde, a board for Hatteras Inlet, &c. Vacancies, how filled. Powers of boards. 26. Bonds given by pilots. 27. To have a telescope or spy-glass. 28. May be removed for misconduct. Sec. Penalty for acting after removal. Notice of removal published. 29. Penalty for acting without license. 30. Pay to pilots for detention. Pay when driven off coast, after boarding. 31. Penalty for neglecting to go to a vessel with a signal, &c. 32. Pilots, when refused, to have pay. 33. No pilotage on ships under 60 tons. Exception. 34. Kates of pilotage for Edonton, Wash- ington, Newberu, Ocracock, and Hatteras pilots. 35. Harbor masters and clerks appointed by boards. 36. Rates of pilotage at Old Topsail. 87. Bogue inlet. 38. Fees of pilots annexed to branches. 39. Penalty, when a slave acts as pilot. 40. Boards to designate where ballast, trash, &c., may be cast. Penalty for throwing ballast, stone, &c., into navigable water, or pulling down beacons, &c. 41. On pilots not informing thereof. 42. Penalties and fines, how disposed of. Annual report uiade thereof. Chap. 85.] pilots. 461 1. Thfre shall be elected annually on the first Monday of Comm'rsof May, five commissioners of navigation and pilotage for Cape c7'lFe°rriTei- Fear river, who shall be citizens of the town of Wilmington. ye:frV elected' The election shall be held at the com-t house of the county, ^J^iil^iiil'^^';, 'I shall be conducted by the sheriff of New Hanover in the same R. s.cl^sS,"^. manner as political elections, and shall be made by the citi- j.' 7^ ^'^^^ '';.■'"' zens of the town who are resident therein and are qualified to ^r'^i i. ' "' vote for members of the house of commons. _ 2. The commissioners shall be styled the board of commis- How styled. sioners of navigation and pilotage for the Cape Fear river, and a majority of them may act in all cases. Said board shall To 6ii vacnn- have power to fill vacancies as they occur in the board, during °ointTcieI-k their term ; to appoint a clerk to record in a book the rules, ^'°'" '""^''^" orders, and proceedings of the board ; to establish, from time To establish, to time, all such rules, regulations, and orders for the port as fef ''" "*' they may deem necessary and efficient for the detection, appre- hension, or return of slaves, escaping or attempting to escape from the port in vessels; and to establish, and as often as need may be, to alter and regulate the fees and charges of the pilots or harbor masters of the port for services required of them by virtue of such rules, regulations, and orders. More- To have au- over, they shall have authority in all matters that may concern cerni'J-mvi- the navigation of the waters from seven miles above Negi-o- gation°of the head point downwards and out of the bar and inlets ; and with r's'c^IT. respect to throwing trash in the river at the town of Wilming- 2.'— isis, c. «, ton, and the construction of wharves, shall have a concurrent^' ^" jurisdiction with the commissioners of the town ; and the com- missioners of pilotage, and the commissioners of the town, shall_ consult together, upon the best methods of preventing any injury to the channel, by wharves or otherwise in the town, and when there is no harbor master, the commissioners of nav- igation and pilotage shall decide all disputes about the mov- ing of vessels and other matters, which properly fall within the department of harbor master. 3. The said commissioners immediately on their election. Harbor master shall appoint a harbor master for the port of Wilmington, who s'' o"ssi'7 '^^ shall hold his office for one year next ensuing ; and they shall °' '^ prescribe the duties of his oHice. He shall be entitled "to re- ceive from the master of each vessel, that shall enter said port, one dollar, and such fees for other services as the commission- ers may prescribe. 4. The commissioners shall, from time to time, make and Pilot stations establish such rules and regulations, respecting the arrange- "^"J* ','e°ui.ff<;d ment and station of pilots, and the rates of pilotage, as to them bv comm''rs°- shaU seem most advisable, and shall impose reasonable fines, ^- '^■''•'*^'^- '^• forfeitures, and penalties, for the purpose of enforcino- the ex- ecution of such rules and regulationsr. 5. The board, or a majority of them, shall, from time to ^'lo*' appoint- time, examine, or cause to be examined, such persons as may r^ s^o'^Ts'tl offer themselves to be pilots for Cape Fear river and bars, and shall give to such as are approved, commissions, under their 39* 462 PILOTS. [Chap. 85. hands and seals, to act as pilots both for the bars and rivers, according as they shall be found qualified. Bond given by 6. Every person, before he obtains a commission or a branch P''gg-~g|'' ^' to be a pilot, shall give bond with two sufficient sureties pay- able to the State of North Carolina, in the sum of five hun- dred dollars, with condition for the due and faithful discharge of his duties, and the duties of his apprentices ; and the board may, from time to time, and as often as they may deem it necessary, enlarge the penalty of the bond, or require new and additional bonds to be given ; and every bond taken of a pilot shall be filed with, and preserved by, the said board of com- missioners in trust for every person that shall be injured by the neglect or^ misconduct of such pilot, or his apprentices; who may severally bring suit thereon for the damage by each one sustained. Disputes be- 7. The board shall have power and authority to hear and anrpilots,*de'^-^ determine aU matters of dispute between any pilot and mas- cidedbyb'oard. ter of a vessel, or between the pilots themselves, respecting kt^e^'forfeir-' the pilotage of vessels ; and any one of them may issue a nre, &c., issued warrant against any master of a vessel, for the recovery of by a coram'!-. ^^^ pilotage, and against any pilot for the recovery of any de- mand which one pilot may have against another relative to pi- lotage, and for the recovery of any forfeiture or penalty, incurred by any act of the General Assembly for regulating the pilot- age of Cape Fear river and bars, or incurred by any by-law or rule passed in virtue thereof; which warrant the sheriff or any constable of New Hanover county shall execute, together with all other process authorized by this chapter. And on any warrant, issued as aforesaid, any one of said commissioners .Jurisdiction not mav give judgment for any sum, not exceeding sixty dollars, to exceed $60. J & J & ,• xi • xi r • • Mtiy summon ind may issue execution thereon, in the manner ot issuing witnesses, und execution on judgments given by justices of the peace ; which oath™— K. S. inay be executed agreeable to the rules and regulations pre- c. 88,8. 9. scribed for the levy and sale under executions issuing on judgments rendered by justices of the peace ; and such com- missioner shall issue summons for witnesses, and administer oaths as is done in cases of trials before justices of the peace. Stay of execn- 8. There shall be no stay of execution on any judgment ^"""nit'^ai?" obtained by pilots against masters of vessels, or by masters of lowed. vessels against pilots, or by pilots against pilots, on account of any compensation or detention, or for any forfeiture or penalty payable to any pilot or master of a vessel, by a pilot or master of a vessel, in virtue of any act of the General As- Appealsal- scmbly, or by-law made in pursuance thereof: but appeals c'^ss'^'s"!?' ^' ^^^^^ ^'^' allowed in such eases under the rules which regulate appeals from the judgments of justices of the peace. Provided, however, that, if on the appeal of any defendant, the recovery shall not be lessened, and it siiull be the opinion of the court that the appeal was obtained for the purpose of delay, the court shall adjudge the defendant to pay twenty per cent, on the amount of the original judgment, which shall be added thereto, and execution shall issue for the whole amount. Chap. 85.] pilots. 463 9. When the commissioners aforesaid shall alter the rates Notice given of pilotage, they shall cause the new rates to be set up in the puot"™ 'ai- "'^ office of the collector of the port; and shall also cause them tcred. — R. S. to be annexed to the several pilots' branches, certified under ''' ^^' ^" ^^" their hands. 10. The commissioners aforesaid shall determine and make Number of known, as far as occasion may require, to the pilots, how many s'°Hi,''eS'^^j"r decked boats are necessary for the attendance on the bars re- pilots. — r. s. spectively ; in which decked boats any number of said pilots, "' ^*' ^' ^'^' not exceeding five, may act and be concerned as partners and joint owners. 11. The pilots having branches to pilot over the main bar, Rights of pilots ~' ~ " " ' " as to main and or New Inlet bar, of Cape Fear river, shall be entitled to pilot xew inlet „„, and navigate vessels into port over either bar ; and the pilot, of Cape Fear.' bars — R. S. 0. s. 13. who shall bring a vessel into port over either bar, shall be en titled, exclusively, to navigate the same vessel out of port over either bar. Prouided always, when any vessel shall be ready to go out of port, and such pilot does not attend to navigate the same, the captain or master may employ any other pilot for that purpose, such other pilot being a branch or commis- sioned pilot for the bar over which the vessel is to be navi- gated out ; and every pilot, who shall navigate a vessel out of port contrary to the meaning of this section, shall for every such offence, forfeit and pay forty dollars to the pilot or pilots, who, by this chapter, would have been entitled to navigate said vessel out of port. 12. Every pilot, commissioned as aforesaid, shall keep at Apprentices to least one, but not more than two apprentices, and instruct fote''!I!R''-s ''c" them in the art and mystery of a pilot ; which said appren- ss, s. li. tices, upon being authorized by the board, may pilot any ves- sel, which their several masters are entitled to pilot, for the behoof and emolument of their masters, without let or moles- tation, subject however to the same regulations as the pilots are. 13. When any pilot shall have notice from the master of Penalty on pi- any vessel to attend in piloting such vessel, and shall not, }°'„''(,"°'^\e„ without delay, go on board for that purpose, he shall forfeit requested. and pay to the master ten dollars, (unless he shall, at the time of such notice, have the actual and personal charge of some other vessel,) for each day's delay, caused by his neglect, of the vessel which he had notice to attend, and the further sum of one day's expense of such vessel, to be recovered by a war- rant under the hand of any one of the commissioners, on oath being made of the fact, (which oath any of the commissioners may adiTiinister). Provided, that no pilot shall be considered Proviso. — r. as obliged to take charge of any vessel outward bound, in or- ^' '"' ^*' ^' ^^' der to pilot her over either of the bars, until the pilotage be pre- viously paid him, or satisfactory security for the payment thereof be given him. 14. When any master of a vessel, not having a pilot on Pilots, refused, board, coming over the bar into the Cape Fear river; or being pHot'.'fgo.'!.!"'^ ti. c. fs, s. li. 464 riLOTS. [Chap. 85. in the river and going out of either of the inlets, shall refuse a pilot across the bar, then each pilot so refused, shall be en- titled to the same pilotage, as if he had been actually em- ployed to pilot, and had piloted such vessel. One third fees 15. When any vessel shall come over the bar before a pilot kt/in certain'" '^o'l^'ds hcr, she shall pay only one third fees for coming in, cMscs. — K. s. unless when it may happen the weather is so bad that no per- ' ^' ■ son can board a vessel ; in which case, if he shall hail her with- out the bar, he shall be entitled to full fees. Piiota;:'', when 16. If any vessel deepens or lightens between Wilmington enecT or right- ^'^d the flats, between the flats and Brunswick, or between cneJ. — E. s. Brunswick and Fort Johnson, the pilot shall be paid for the ' ^' ■ greatest draught of water, and shall besides be entitled to de- mand, at the rate of two dollars per day, for every day or part of a day, he may be delayed in loading or unloading such vessel. Vessels, of 17. No master of a vessel shall be required to take or keep and where, ex- 3- pilot ou board, or pay for pilotage in the river, inside of the emptfrompi- bar, in going either up or down the river; nor shall any vessel c" 68,''cT22— ' under sixty tons burden be compelled to take a pilot while 1840, c. 48. crossing the bar, or pay pilotage, except where signals are made for a pilot ; and no vessel coming in at either of the said inlets, with a view to the more convenient prosecution of her voyage, or to make a harbor, shall be subject to the payment of pilot- age. Of sixty tons, 18. All vessels of sixty tons burden or upwards, bound FTiTOr for" 'from sea to Cape Fear river, with the intention of taking a coal, exempt, if return cargo of coal, which has been mined in the State, and I)rescrib"edflag. actually taking such cargo, shall be exempt from pilotage. Provided, that such vessel, when coming in sight of New In- let or Main bar, shall hoist at her topmast head, or such other place as shall be designated by the board of commissioners aforesaid, and keep the same flying till said vessel shall have crossed the bar oi inlet, a flag one yard square, of a white ground, with a black ball in the centre of not less than a foot in diameter. And all vessels in the river of like burden, out- bouiufcoal ves- '^^^''d bound and laden with coal, shall also be exempt from scis, also. pilotage. Provided, they hoist said flag as soon as they come in sight of, and keep it flying till they pass New Inlet or Main bar. Provided, liowever, that no vessel of sixty tons burden or upwards, having on board any merchandise or freight, ex- cept coal, shall be entitled to exemption from pilotage. And Penalty on cap- /"'o^^^^^'^O'"''''^''' ^''^^ if any vcsscl of the burden last men- tains, &c.. tioned, coming into the Cape Fear river through New Inlet or fiaK'^ofcoaWel? Main bar, or going out of the river to sea, shall hoist said flag seis.— iS5o,c. under false pretences, to avoid paying pilotage, the master, 116, s. 1, 3. captain, and owner thereof shall pay double pilotage to some one of the pilots, for the equal benefit of them all. '^'^sT'k'f"" '^T' 19. All vessels of such burden engaged in the transporta- raisingfiag.— tion of coal, OU the coast of North Carolina, whenever they iS50,c.ii6,s.5. appe-^^r within sight of any pilot station, shall raise said flag, Chap. 85.] pilots. 465 to the end that pilots may know that their services are not re- quired, under the penalty of ten dollars, to be paid by the master or owner to any one of the pilots who may first sue for the same. 20. The board of commissioners shall not alter the rules pilotage of, not and regulations concerning pilotage, prescribed in the .two pre- ig-Q'^^^\f^''^i ceding sections. ' " ' " ' 21. Five persons who shall be residents of the towns, re- Comm'rs of spectively, and possessed of a freehold therein, shall be annu- navigation for ally appointed commissioners of navigation, for each of the Washington, ports of Newbern, Washington, and Edenton. Those for the yea^fy appoin^^ ports of Edenton and Newbern, shall be chosen by the free- ed. men of said towns respectively, who are entitled to vote for po"ati°I"''" commissioners of the towns, at the same time and in the like manner as are elected the commissioners of the respective towns : and those for the port of Washington shall be ap- pointed by the county court of Beaufort, (seven justices at least being present,) at the first court of each year : and all vacancies in said boards, whether by a refusal to act, resigna- tion, or otherwise, shall be filled by the remaining commission- Vacancies.how ers, until the same shall be filled (which is hereby directed to fg^f^^®'°' be done) at the regular period of election. i842,c.65,s. i. 22. The said commissioners shall have power to contract Power of com- with proper persons to examine from time to time, the situa- e.'s.Ts^Izs. tioii of the Swash, and keep the same and all other channels leading from Ocracock bar to Newbern, Washington, Eden- ton, Plymouth, and Elizabeth City, well and sufficiently staked out, and to cause buoys and beacons to be placed where the commissioners shall think most convenient for the safety of vessels. 23. The commissioners of the port of Washington shall be Com'rs of a body corporate, under the name of " the commissioners of bld~*cofporate. navigation for the port of Washington," and have all the pow- Their style and ers of a corporation, concerning the subjects placed under MaTpurchase their control ; and they shall have authority in all matters that lands and erect concern the navigation of PamUco river from Willow point cd'Mng persona downwards, and may purchase and sell and buy again, at their in quarantine. discretion, at or near the port of Washington a piece of land pifvsic^n'°Ie. and erect thereon suitable houses for the reception of persons — is42, c. 6o,s. on board any vessel which, by the laws of the State, might be ^'^' compelled to perform quarantine, and to have over such per- sons when landed, the same control as if performing quaran- tine in the accustomed mode. Also, to employ a physician to attend the persons landed ; to furnish them with such articles of provision, clothing, or other necessaries, as their situation may demand during their continuance there. And it is hereby enacted, that both the vessel and the persons so landed shall, in all things and to every intent whatever, be considered, while remaining on said piece of land, to be in a state of quarantine, and subject, both they and all persons, to the same penalties for leaving or visiting said place, for breaking or violating such 466 PILOTS. [Chap. So. quarantine in any respect whatever, as if the said persons so landed had remained on the vessel. forocmcoX' ~^- '^'^^ ^^^"^ "^ commissioners for the port of Ocracock, tobecontiuu- establisiied by the twenty-ninth section of an act of the Gen- thre^thJfesa ^^^^ Assembly, passed in the year 1836, entitled "An Act to re- yearatOcra- duce iiilo.one the several ads concerning pilots and commission- ers of navigation" and now existing by virtue of the provisions thereof, shall continue to exist ; and it shall be their duty to meet at Ocracock at least three times in each year, or a ma- jority of them, after giving at least twenty days' notice of each meeting; and when any person is desirous of becoming a pilot at Ocracock bar and the Swashes, and through Pamlico and Albemarle Sounds, he shall be examined by said board ; To appoint pi- ^'^d when found competent to take charge of any ship or ves- swashes''&c'"' ^^^ ^^ ^ pilot, the board shall issue to him a branch, and take ' ■ the bond prescribed by law ; and no person shall be authorized to act as a bar or swash pilot, unless he shall have a branch Jo^^eep an of- from said board. The said board shall have an office at Ocra- cock! "'^^ cock, in which shall be filed the bonds of the pilots ; and every pilot receiving a branch from said board, shall pay to Fees paid for the board two dollars and fifty cents, of which sum those'liv- dL^o'sed'if "''' i"g °". Portsmouth and Cape Hatteras, shall receive ten cents Vacancies, how per mile travelling to and from the meeting of said board, ^^ and the residue shall be divided between all the members of 'said board ; when a vacancy shall occur in the board by death, resignation, or refusal to act, a majority thereof shall appoint some suitable person thereto, whose residence shall be at the Com'rs to keep ^^^^ place where the vacancy occurred. Said commissioners ajomnai, and shall keep a regular journal of their proceedings; and before take oath. entering on the duties of their office, they shall take and sub- scribe before any justice of the peace of the counties of Car- teret or Hyde, or before the collector of the port of Ocracock, the following oath : " I do solemnly swear, that I will truly, faithfully, and impartially examine every person who shall ap- Branches to ply to me for a branch, to the best of my ability : so help me, expire in tUree r^ j jj mL i. i in • • -i ^ 11 years.— u. s. c. '-'^ou- Ihe branches shall expire m three years from the date 88, s. 29. thereof. Com'rs of navi- 25. Each of the county courts (a majority of the justices tercronswr^'^"^^-P'"'''^'^"*^ °^ ^'^^ counties of Carteret, Onslow, and Hyde and Hyde. ' shall, if not already done, appoint five commissioners of nav- Those of Carte ^0*^^'°" ! thosc appointed by the court of Carteret, to be a board ret, a board for for Old Topsail inlet and the waters thereof; those appointed fif &T'''' '°" ^y ^^"^ cowxi of Onslow to be a board for Bogue inlet and its Of Onslow, a Waters ; those appointed by the court of Hyde, to be a board B?mu'e''i'nlet f""^ Hatteras inlet and its waters. And when vacancies occur &c. ' in any of the boards, by refusal to act, by resignation, orother- boaMfor Hnt- ^'^f' ^'^'^ remaining members of such board siiall fill the same, ter'as inlet, &c. Until the Same be supplied by the appointing court, which is mioT"""'"'"'^ directed to be dune at the first court after the vacancy occurs. PoweVsof And the said boards, respectively, shall have the same powers c.Ts's.l^.-' ^^^^ authorities as to pilots and pilotage, as to staking out Chap. 85.] pilots. 46*7 the respective channels, and as to placing buoys and beacons, 184g, o. oo; of their several and respective inlets and waters, as are given ^^*°'°" ■''■'^" to the commissioners of navigation for the ports of Newbern, Washington, and Edenton. 26. All pilots appointed by the commissioners of navigation Bonds given by for Newbern, Washington, Edenton, Ocracock, Old Topsail, ^^'"^''•-K. S. o. and Bogue inlets, shall give bond, with sufficient security, for '"■ the amount, and in the manner prescribed for the bonds of the Cape Fear pilots, in section six of this chapter, and be subject to the same rules, regulations, and right of recovery as are there specified. 27. Every pilot, within such convenient time as thecommis- Tohaveatel- sioners may direct, who have control over the waters within ^?as°s!-R.T'o. which he acts, shall furnish himself with a good telescope or ^^^i s. 21. " ' spy-glass, under the penalty of fifty dollars, to be paid to the commissioners. 28. Whenever any pilot appointed by any board by this ^'*y ^e remov- chapter authorized to appoint, shall on trial be found to be in- havfJr.X'^^" competent, or shall be guilty of improper conduct by intoxi- cation or otherwise, or of any misbehavior in his office, the pilot so offending, may be removed from his office by the board of commissioners under whose authority he is acting, by a no- tice to him in writing; and if after such removal, he shall at- p ,. , tempt to take charge of any vessel, he shall forfeit and pay two ing°afterremo- hundred dollars for the use of said board. And it shall be the ™J-j^g ^^^^ duty of the board to put up a written notice of the removal, movuf pubifsh- in the public places within the port, or publish it in some con- ll'-f f; % venient newspaper. '" ' 29. If any person shall presume to act as pilot, who is not Penalty for act- qualified and licensed in the manner herein prescribed, he shall wuhout'u-' forfeit and pay, for the use of the commissioners, forty dollars cense.-R. S. c. for every attempt at piloting. Provided, nevertheless, that *'*''■ ^' ^■ should there be no pilot in attendance, any person may con- duct into port, any vessel in danger from stress of weather, or in a leaky condition. 30. If the master of any vessel shall send for or take on Pay to pilots board, any pilot to conduct his vessel from her station to any *''"' 'detention. other place, and shall afterwards neglect or delay to remove such vessel, (wind and weather permitting,) he shall pay to the pilot two dollars for attending each day he shall be so de- tained ; and if any vessel, which shall be boarded by a pilot, without or within any of the inlets, shall, by violence of the Tuy when weather or otherwise, be driven to sea, the master or owner of cotlt"aftIr such vessel shall allow and pay the pilot two dollars per day. boarding.-R. for every day he shall be on board, besides the fees of pilot- 33 "• ''"' '• ^'^' age. 31. When any pilot shall see any vessel on the coast, hav- Penaitvfor mga signal for a pilot, or shall hear a gun of distress fired off "''g'«""'"S '" the coast, and shall neglect or refuse to go to the assistance Cvh,^ Tsl!''' of such vessel, such pilot shall forfeit and pay one hundred "•■>'• ^<'—^- S- dollars, to be recovered in the name of the State, one half to "' '^^''•"■3®- 468 PILOTS. [Chap. 85. the use of the informer, and the other half to the master of the vessel ; unless such pilot is then actually in charge of an- other vessel, refaled^to'irave ^^' ^^ ^ branch pilot shall go off to any vessel bound in, pay.— K. s. c. and offer to pilot her over the bar, the master or commander 88, s. 38. (jf gm>j, vessel, if he refuses to take such pilot, sJiall pay to such pilot, if not previously furnished with one, the same sum as is allowed by law for conducting such vessel in, to be re- covered before a justice of the peace, if the sum be within his jurisdiction. No pilotage on 33_ -^q pilot, acting under the authority of the commission- tons, ers of navigation for Newbern, Edenton, Washington, or Old Topsail inlet, shall be entitled to pilotage for any vessel Exception.— mijer sixty tons burden, unless such vessel shall have given a 30,39. ' signal for a pilot, or otherwise shall have required the assist- ance of a pilot. r^efor^Eden-'' ■^^- Branch pilots of Edenton, Washington, Newbern, ton, Washing- Ocracock, or Hatteras, shall be entitled to receive of the com- Ooraoock' Hat- 'ii^nder of svich vessel as they may have in charge, the follow- teras.— R.' S. c. ing pilotage, namely : for every vessel of sixty and not over one jl\a *°!i7 1 hundred and forty tons burden, from the other side of the bar, 1S46, c. 49, s. 1, J, ,..'«, ., . , -^ ' 2, 3. at any place within the limits of the pilot ground, to Jseacon Island road, or Wallace's channel, ten cents for each ton ; and the further sum of two and a half cents for each ton over one hundred and forty; and two dollars for each vessel over either of the swashes ; (that is, over said swashes, either to or from Beacon Island road, or Wallace's channel, or over any shoal lying intermediate, between either of said swashes and Beacon Island road, or Wallace's channel) ; for every ship or vessel from the mouth of the swash to either of the ports of New- bern or Washington, one dollar per foot; and for every ship or vessel from the same place to the port of Edenton, twelve dollars ; and to the port of Elizabeth City, ten dollars ; and the same allowances down, as up, and outwards, as inwards. Harbormasters 35. The several boards of commissioners may appoint a pokited^y'^'' harbor master for their respective ports; and the commissioners boards.— of Old Topsail inlet shall appoint a harbor master for the 1846, c. 69. p^^^ ^j. ggg^i^fovt. They shall appoint a clerk to keep books, in which shall be recorded all their proceedings. Bates of niiot- 36. The branch pilots for Old Topsail inlet shall be en- smltnict.— "''' titled to receive of the commander of such vessel, as they may K. S. c. 88, s. have charge of, the following pilotage, namely : for every ves- *^' sel of sixty tons burden, from the outside of the inlet, at any place within the limits of pilot ground, into Bogue road or Shackleford road, at the option of the commander, six dol- lars ; for vessels drawing eight feet water and less than twelve, one dollar per foot ; for all vessels drawing twelve feet and upwards, one dollar and twenty-five cents per foot ; and the same fees for piloting outwards as inwards. Ropie inlet.— .37. The branch pilots for Bogue inlet shall be entitled to R^S. c. 88, s. j.g(.pjve of the commander of such vessel, as they may have Chap. 85.] pilots. 469 charge of, the following pilotage, namely : for bringing any vessel into the said inlet, drawing less than seven feet, from the outside of the bar to the anchorage before the town, or the customary place in Hill's channel, fifty cents per foot ; for a vessel drawing more than seven feet, seventy cents per foot; and the same fees for pilotage outwards, as inwards. 38. Tlie commissioners of navigation for the several ports Fees of pilots of this State, shall annex to the branch or commission, by branches.— r. them given to each pilot, a copy of the fees to which such S. c. 88, a. 43. pilot is entitled. 39. If any slave shall, with the consent of his owner, and Penalty, when not accompanied by a pilot, go oft' to any ship or vessel, for pilot^P^^S^ *^ the purpose of bringing such ship or vessel over any bar or^s, s. 44. inlet of the State, or shall pilot any such ship or vessel out of and over any bar or inlet, the owner shall forfeit the value of such slave, to be recovered in the name of the State ; one half to the use of the person suing for the same, the other half to the use of the county where the owner resides. 40. The several boards of commissioners, established by Boards to des- this chapter, may designate the places whereat, within the b^'itoTi-i^™ waters under their several and respective control, may be cast iSsc., may be and thrown ballast, trash, stone, and such like maLter : and if y'enaity for any person shall cast or throw from any vessel, into the navi- throwing bai- gable waters of Carteret or Onslow counties, of Tar or Pam- into^a°^gJ^^lg■' lico river, or into the navigable waters of the Cape Fear, or water, or pull- any other river in the State, or into any channel of navigable ^qs ^"—k.^ water elsewhere than in a river, any ballast, stone, shells, s. c. 88, s. 23, earth, trash, or other substance likely to be injurious to the c^'cs^'sTI^^^' navigation of such waters, rivers, or channels; or if any per- i646,o. 60,3. 3. son shall wilfully pull down any beacon, stake, or other mark, erected or placed in virtue of this chapter, or any by-law, order, or regulation, passed or ordained in pursuance thereof; the person so offending shall be deemed guilty of a misde- meanor, and may be indicted therefor : and, moreover, shall for- feit and pay two hundred dollars, to be recovered for the use of the commissioners in whose waters the oft'ence was committed. 41. If any pilot shall knowingly suffer any such unlawful Penalty on pi- act to be done, and shall not within ten days thereafter give 1°'^ ^"^ ","' '"" , . , . . .,.•'. . ^ forminc; there- to the said commissioners, or one 01 them, information thereof, of.— u. s. c. 88, such pilot shall likewise be deemed to be guilty of a misde- '■ ^^' ^"'" meanor ; and, besides the usual punishment of such offence, on convicfion, shall be forever incapable of acting as a pilot in the State. Provided always, that it shall be the especial duty of the commissioners to enforce the penalties imposed in every section of this chapter, which, or part of which, are given to the commissioners. 42. One half of all the penalties, fines, and forfeitures, im- Penalties and posed in this chapter, which, or any part of which, are to be posed of.— R. ' recovered by the commissioners, shall belong to the board, s. c. ss, s. 46. within whose jurisdiction the same may have been incurred, and shall be applied to the defraying of the expenses of the 40 470 POOR. [Chap. 86. board; and the other half shall be applied to the improvement of the navigation of the waters, within the same jurisdiction. madefhereof' ^^^^ ^" annual report of the last-mentioned half of such re- ceipts, and the objects on which the same may have been expended, shall be made to the board of internal improvement. CHAPTEE 86. POOR. Sectios 1. Wardens of poor elected by the jus- tices. To be notified, &c. 2. To serve three years, and take oath. 3. Warden's court held at court house. To appoint clerk, &o. Treasurer to give bond. 4. Penalty on clerks, and sheriffs, &o. On wardens, refusing to qualify. Vacancies, how filled. 5. Three wardens may call a court. Pen- alty for not attending. 6. Wardens to keep a journal of proceed- ings. To keep and publish annu- ally, accounts of receipts, &c. 7. Tax laid by majority of justices, for poor. 8. Wardens, &c., to settle with succes- sors. On failure, to pay SIOO. Sum- mary recovery of money detained. 9. Poor-houses may be established. 10. Houses and poor managed by war- dens. 11. Property of wardens free from tax. 12. Legal settlements, how acquired. (1.) By one year's residence. (2.) Married women to have the set- tlement of husbands, if, iSio. Section (3.) Legitimate children, that of their father or mother, &c. (4.) Illegitimate, that of the mother, &c. (5.) Settlements to continue, till oth- ers acquired, &c. 13. Paupers to be removed to tlieir settle- ments. Unless sick and disabled. All charges to be paid by the county of his settlement. Housekeepers entertaining paupers, to give notice. H. Families of poor militia-men oa ser- vice, to be supported. 15. Disabled slaves provided for by war- dens. Owner to repay charges. 16. If dead, his estate charged. 17. May be removed to owner's county. Ifi. Two wardens may act in such cases. 19. Proceedings when owner about to re- move, and leave infinn slave. 20. Stock of slaves to be taken by war- dens. 21. Penalties imposed in this chapter to go to the poor. 22. County court may pay wardens. Wardensof 1. The justices of the several courts of pleas and quarter- poor elected • ■ 'i 1 • , , ,1 ,- ^ , ,'. by a majority scssioHs, a majority being present, at the first term held on or iwrc^t'" ^^^^^ ^^^ ^"^^^ '^'^y °^ January in the year in which wardens of ' ■ the poor are now chosen, and every three years thereafter, shall elect not more than twelve, nor less than seven freehold- ers, to serve as wardens of the poor in their respective coun- ties, for the term of three years next after the election : and the justices shall, at the term of electing the wardens, appoint a time for their meeting, of which the clerks shall forthwith issue notices to be served on tiie wardens by the sheriff, within ten days after receiving tliem. 2. The wardens shall serve for three years, and at the first meeting next after the election, shall take before some magis- To be notified, To serve three years, and Chap. 86.] poor. 47I trate the oath appointed for public officers, and shall take and take oath.— R. subscribe in a book to be by them kept for that purpose, the ^- "' ^^' ^- ^■ oath of office prescribed for them. 3. The court of wardens shall be held at the court house ; Court of, held and a majority of them at their first meeting shall appoint a ToTppoilir'*' treasurer of the court, and take from him a bond with ample c'e*, i:c. security for the faithful discharge of his duties ; and shall also Ji™ bomi-^'R. appoint for their clerk some fit person who shall not be of »• <■■ ss, s. «._ their own body. ""^^^ "■ "»• 4. Every clerk or sheriff failing to discharge the duties pre- Penalty on scribed in this chapter, and every person elected a warden, who sJ,'e''rifl-,''"^j, shall refuse or neglect to qualify as aforesaid, after notice as On wardens, aforesaid, shall forfeit and pay twenty dollars ; and when a '■u'!",-}-"!^^. g person elected shall refuse or neglect to qualify, or when a c.^oV, s! 4.- yacancy may occur by death, removal, or otherwise, a major- va^c-'mdefhow ity of the other wardens shall elect of freeholders others in fiUed.""*^"' their stead, and the persons so chosen shall be subject to the same penalty for refusing or neglecting to qualify. 5. Any three wardens may call a court of wardens when Three wardens necessary, by written summons directed to any sheriff or con- Tourt"*^ " stable of the county, who shall execute the same under the Pe"!iity for not penalty often dollars for every wilful neglect; and every war- s"c!"89,^6^!^" den summoned, who may wilfully neglect to attend, shall for- feit and pay the like sum. 6. The wardens shall keep in well-bound books a journal '"^»'''^<'".«*» and minutes of their proceedings, in which shall be fairly ofl^-oceedhig'. stated accounts of all moneys, which from time to time they shall receive, and the purposes for which the same may have been disbursed ; and every year, at the next court of their And publish respective counties after the first day of June, they shall pub- countfjf'"'" lish and set up, at the court house, an account of the moneys receipts and received from taxes or otherwise, for the purposes aforesaid, ITe? s"^'!:" s*^,' with the use and application of the same, particularly specify- s. 8. ing the expense of the paupers, with an account of the claims or debts unpaid, if any, and to whom due; under the penalty of two hundred dollars for the use of the county, to be prose- cuted by the solicitor thereof. _ 7. On application of the wardens, the justices, when pro- Tax for poor Tiding for other county revenue, may lay a tax sufficient for j^v'^of m"i'c^'' the maintenance of the poor, which shall be collected and — E. s. c. ss, s. paid to the wardens, at the same time as other county taxes "' are paid to the county trustee. 8. When the wardens go out of office, they and their clerk Wardens going and treasurer shall deliver to the succeeding wardens all their °e"tufwifh!.uc- books, journals, and minutes of proceedings, and shall settle cessors. with, and pay to their successors, all the money remaining in their hands ; and on failure to do so, each of the persons On failure, to offending shall forfeit and pay to the successors one hundred £"•'■' ^"''- doilars ; which sum, with any money that may be in the • coverv ot hands of the offending person, may be recovered by suit against f°'^l '^^"''"- him ; and in case of any default by the treasurer of such out- m,' s. 11. ' ''' 472 Poor-houses mfiv be estab- lished.— R. S. c. 89, s. 12. Houses and poor under direction of wardens. — R. S. c. S9, s. 13. Property not taxed. — R. S. c. 89, s. 14. Legal settle- ments, how ac- quired. By one year's residence. — E. S. c. 5, s. 1?. Married wo- men to have the settlement of their hus- bands, if, &c. Legitimate children, that of their fatlier or mother, i5;c, Illegitimate children, that of their mother, &c. Settlements to continue, till others acquir- ed, &c. Ponpers to be removed to their settle- ments. POOR. [Chap. 86. going wardens, his bond may be sued by their successors, both for the penahy aforesaid and the money detained ; or the money in his hands may be recovered with the forfeiture aforesaid, against him and his sureties, on motion in any court of record, after giving them ten days' notice of the motion. 9. The court of pleas and quarter-sessions, a majority of the justices being present, may, when they deem it necessary, pur- chase lands, and cause to be erected houses for the mainte- nance and support of the poor of their county. 10. The wardens, twenty days' notice being given, shall annually let out to the lowest bidder, or employ some person as overseer of, the said poor-houses and poor of their respec- tive counties, as to them may seem best ; and such overseer shall give bond payable to the State of North Carolina, with security for the faithful discharge of the duties assigned to him. And the wardens may ordain by-laws, rules, and regu- lations, and do all such matters and things as they shall deem expedient for the comfort of the poor. 11. The property held by the wardens of the poor shall be exempt from tax. 12. Legal settlements may be acquired in any county, so as to entitle the party to be supported as a pauper therein, in the manner following and not otherwise. (1.) Every person, who shall have resided continuously in any county for one year, shall be deemed to be legally settled in that county. (2.) A maiTied woman shall always follow and have the set- tlement of her husband, if he have any in the State ; otherwise, her own at the time of marriage, if she then had any, shall not be lost or suspended by the marriage, but shall be that of her husband, till another is acquired by him', which shall then be the settlement of both. (3.) Legitimate children shall follow and have the settle- ment of their father, if he have any in the State, until they gain a settlement of their own ; but if he have none, they shall, in like manner, follow and have the settlement of their mother, if she have any. (4.) Illegitimate children shall follow and have the settle- ment of their mother, at the time of their birth, if she then have any in the State. But neither legitimate nor illegitimate chil- dren shall gain a settlement by birth, in the county in which they may be born, if neither of their parents had any settle- ment therein. (5.) Every legal settlement shall continue, till it shall be lost or defeated by acquiring a new one, within or without the State : and upon acquiring such new settlement, all former settlements shall be defeated and lost. 13. Upon complaint made by the wardens before a justice of the peace, that any person has come into their county, who is likely to become chargeable thereto, the justice by his war- Chap. 86.] pook, 473 rant shall cause such poor person to be removed to the county where he was last legally settled; but if such poor person be Unless sick and sick or disabled, and cannot be removed without danger of life, the wardens shall provide for his maintenance and cure at the charge of the county ; and after his recovery shall cause him to be removed, and pay the charges of his removal: and the All charges to county, wherein he was last legally settled, shall repay all comity oniie" charges occasioned by his sickness, maintenance, cure, and settlement. removal, and all charges and expenses whatever, if such person shall die before removal. And if the wardens of the county, to which such poor person belongs, shall refuse to receive and provide for him when removed as aforesaid, every warden, so refusing, shall forfeit and pay forty dollars, for the use of the county whence the removal was made ; moreover, if the war- dens of the county, where such person was legally settled, shall refuse to pay the charges and expenses aforesaid, they shall be liable for the same, by suit in the superior court; and if any Housekeepers housekeeper shall entertain such poor person, and shall not paupers°to^ give notice thereof to the wardens of his county, or one of give notice.— them, within one month, the person so offending shall forfeit i^j ' "' ' *" and pay ten dollars. 14. When any citizen of the State is absent on service as a Families of militia-man, and his family are unable to support themselves m°e°n on service during his absence, the court of wardens of his county, on ap- supported.— R. O ' J ' I C r, go a Ift plication, shall make towards their maintenance such allow- • ■ > • • ances as they think reasonable. 15. The owner of any slave, incapable of service from age Disabled slaves or other disability, shall provide him with proper food, raiment, !^™^enf'°'' ''^ and lodging; and if any such slave shall be unprovided as aforesaid, the wardens of the county, where the slave may be, shall furnish him Avith food, raiment, and lodging, and charge Owner to repay the owner therewith, and may recover against him the price, c.'sg^'s! 19. before any tribunal having jurisdiction of the amount of the demand. Provided, however, that the wardens shall inform the owner of their proceedings, as soon as practicable, by no- tice directed to the sheriff or constable of his county, who shall execute the same forthwith, and make return thereof to the wardens by whom it was issued. 16. If the owner of such slave be dead, his executors or Iff'^*'!. his es- administrators shall provide for him out of the estate of the handVot''ex'ec-° deceased; and upon failure so to do, the wardens shall provide ito"". adminis- for him, and proceed against such executors or administrators g™ardiiu"— R. in every respect, as against the owner ; or, if such slave shall t"- <=■ 69, «• 2f- be under the control of a guardian, he shall provide for the slave out of the estate of his ward ; and upon failure, the war- dens shall provide for the slave, and proceed against the guar- dian in manner aforesaid ; and such executors, administrators, and guardians shall be allowed the expense of making such provision, in their settlements. 17. When such slave shall be in a county other than the Snch slave county where the owner, or the executors or administrators of eJ to owners 40* 474 PRISONEES. [Chap. 87. connty.— R. s. a deceased owner or guardian reside, the wardens may remove ■'■^ ■ him to the owner, or to the executors or administrators of the deceased owner, or to the guardian, at the expense of such owner, executors, administrators, or guardian. Two wnrdens 18. Any two of the Wardens shall have authority to execute K^S.^c. fs'^g.'" the foregoing provisions, relative to disabled slaves. Pr'oc edin' ^^' "^ Wardens", or any one of them, on information, that ■n™en owuCT ^"Y person is about to remove out of the county, and has a about to re- slave likely to become a county charge, may issue a warrant "rve'iufirm to bring such person before him or them, and shall take such fr'^'is^ S. c. security by bond, payable to the State of North Carolina, as ' ^' ■ may be sufTicient to indemnify the county : And in case such person shall refuse to give bond, he or they shall have power to commit him, until he shall enter into such bond, or remove the slave without the limits of the county. 20. All horses, cattle, hogs, sheep, or other stock, that shall belong to any slave, or be of any slave's mark, shall be seized and sold by the wardens, and the proceeds by them applied, the one half to the support of the poor, and the other half to the informer. 21. The several forfeitures and penalties by this chapter impte'r' to'be imposed, unless otherwise directed, shall be recovered for the r'^S^c'^sT's" "^^ °^ ^^^ wardens of the poor of the county, wherein the for- 25. ■ ■ ' ■ feiture or penalty was incurred. County court 22. The court of pleas and quarter-sessions may order that S.— fs5™'^. the wardens of the poor of their county shall be paid for the ^^- services rendered in the capacity of wardens; each warden first making appear to the satisfaction of the court, by his oath, the character and extent of the services rendered, for which he claims compensation; and such payment shall be made by the clerk of the wardens, out of any funds in his hands not otherwise appropriated. Stock of slaves to be taken by ■wardens. — R. S. c. 89, s. 24. Penalties im posed in this Sect. 1G. Executors de son tori, not liable, 6 Ire, 356. Sect. 20. 2 Ire. 06. CHAPTER 87. PRISONERS. Section 1. Keepers of jails to keep prisoners of United States. To have Eame fees, as for State prisoners. 2. When jail destroyed, prisoners sent to jail of adjoining county. 3. If no jail, or jail unsafe, court may cumiuit in like manner. Skctiom 4. The sheriff, &c., may, likewise. Jailor of such county liable for escape. 5. Sheriff apprehensive of escape, how to obtain guard. Guard to be paid. 6. Prisoners for crime to pay jail fees. 7. Expense of guarding and removing prisoners, &c., by what county paid. Chap. 87.] PRISONERS. 475 Section 8. Prisoners may buy necessaries. Pen- alty on jailers, for injuring prison- ers. 9. Jaiier to cleanse jail, furnish diet, &;c. 10. Blankets and bedclothing provided for prisoners. Blankets, &c., used by slaves. 11. Prison-bounds for health of prisoners, laid out by court. Bond to keep bounds. 12. Bond, in criminal cases, returned to court and deemed a recognizance. Section 13. In civil cases on mesne process^ to stand as security for final judgment. 14. In cases of imprisonment on final process, deemed a judgment. On breach of bond, debtor excluded from bounds. 15. Prisoners, how transferred to sheriff's successor. 16. To be confined in proper apartments. Penalty for confining them other- wise. 1. Whereas, it is recommended by the resolve of the first session of the congress of the United States to the legislatures of the several States, to pass laws making it expressly the duty of the keepers of their jails to receive, and safely keep therein, all prisoners committed under the authority of the United States, until they shall be discharged by the due course of law, under the like penalties as in the case of prisoners com- mitted under the authority of such States respectively, the United States promising, on their part, to pay for the use and keeping of such jails, at the rate of fifty cents per month, for each prisoner who shall be committed under their authority, during the time such prisoner shall be confined therein, and also to support such prisoners as shall be committed for of- fences. To carry the said resolve into effect, be it enacted, that, when a prisoner shall be delivered to the keeper of any jail in Keepers of the State, by the authority of the United States, such keeper .i^''^ to receive shall receive the prisoner, and commit him accordingly: and oners of'iL"^ every keeper of a jail, refusing or neglecting to take possession States. of a prisoner delivered to him by the authority aforesaid, shall be subject to the same pains and penalties, as for neglect or refusal to commit any prisoner delivered to him under the authority of the State. And the allowance for the mainte- To have sams nance of any prisoner committed as aforesaid, shall be equal to ^^'^^ =^ ^?^ that made for prisoners committed under the authority of the ers'!-^^"s°T State. 90, s. 1. 2. Whenever the jail of any county shall be destroyed by AVhenjailde fire or other accident, any justice of the peace of such countv **'™.ved, prison- 11 • 1 J 1 , r- 1 > . J ers sent to lail may cause all prisoners who may then be confined therein, to of adjoining be brought before him ; and upon the production of the pro- cess, under which any prisoner was confined, shall order his commitment to the jail of any adjacent county; and the sheriff", constable, or other officer of the county, deputed for that purpose, shall obey the order ; and the sheriff or keeper of the common jail of such adjacent county shall receive such prison- ers upon the order aforesaid, and in case of neglect shall be deemed guilty of a misdemeanor, and held as for an escape. 3. Whenever it shaU happen that there shaff be no public Or if no jail, or jail, or an unfit or insecure jail, in any county, the superior j.'J'urt" may courts of law and courts of equity, the courts of pleas and commit, kc-— quarter-sessions, judges, justices of the peace, and aU judicial J^- S- c. 90, k 3. county. — E. S. " .2. 476 PRISONERS. [Chap. 87. Also sheriffs, &c. Jailer of such couuty liable for escape. — K. S. c. 90, s. ( Sheriff, appre- hensive of escape, how to obtain guard. Guard to be paid.— R. S. c. 90, s. 5. Prisoners for crime, to pay- jail charges. — R. S. c. 00, s. 6, Expense of guarding and removing pris- oners, Scc.j by what officers of such county, may commit all persons who may be brought before them, whether in a criminal or civil proceeding, to the jail of any adjoining county, for the same causes, and under the like regulations that they might have ordered com- mitments to the usual jail ; and the sherifl's, constables, and other officers of such county, in which there may be no jail, or an unfit one, and the sheriffs or keepers of the jails of the adjoining counties, shall obey any order of commitment, so made, under pain of being guilty of a misdemeanor. 4. The sheriffs, constables, and other ministerial officers of any county, in which there may be no jail, shall have authority to confine any prisoner arrested on process, civil or criininal, and held in custody for want of bail, in the jail of any adjoin- ing county, until bail be given or tendered. And any sheriff or jailer having a prisoner in his custody, by virtue of any mode of commitment provided in this chapter, shall be liable, civilly and criminally, for his escape, in the same manner as if such prisoner had been confined in the prison of his proper county. 5. Whenever the sheriff of the county, or keeper of the jail, shall apprehend that there is danger of a prisoner's escaping, through the insufficiency of the jail or other cause, it shall be his duty, without delay, to make information thereof to a judge of the superior court, the attorney-general, or a solicitor, if any of those officers be in the county, and if not, then to three justices of the peace ; and they are authorized, if they deem it advisable, to furnish the sheriff" or keeper of the jail with an order in writing, addressed to the commanding officer of the county, setting forth the danger, and requiring him forthwith to furnish such guard as to him may appear to be suitable for the occasion. For which service, the persons ordered on guard shall receive such compensation, as militia-men in actual service for defence of the State ; and on application for pay, the letter to the com- manding officer, on which the guard was ordered, and the cer- tificate of such officer, countersigned by the sherifl" or jailer, together with the deposition of the officer of the guard, stating the time of service, and that it was faithfully performed, shall be sufficient to authorize the payment of the same. 6. Every person committed to a public jail, by lawful authority, for any criminal ofienee or misdemeanor against the State, shall bear all reasonable charges for carrying and guard- ing him to jail, and also for his support therein until released; and all the estate, which such person possessed at the time of committing the offence, shall be subject to the payment of such charges and other prison fees, in preference to all other debts and demands ; and if there be no visible estate whereon to levy such fees and charges, the amount shall be paid by the county. 7. The expense for guarding prisons shall be paid by the county wherein the prison is situ;ited; and for conveying prisoners, as also the expen.'^e attending such prisoners while iu Chap. 87.] prisoners. 477 jail, when the same may be chargeable on the county, shall be county paid.— paid by the county from which the prisoner is removed. K. s.c. do, s. 7. y. Prisoners shall be allowed to purchase and jarocure such Prisoners may necessaries, in addition to the diet famished by the jailer, as '"'T °''*'^^*^ they may think proper; and to provide their own bedding. Penalty on linen, and clothing, without paying any perquisite to the jailer ■||J'/^"p°^j,'"q. for such indulgence ; and if the keeper of a public jail shall ers.—R. s. o. do, or cause to be done, any wrong or injury to the prisoners ^'^'^' *" commmitted to his custody, contrary to the intention of this chapter, he shall not only pay treble damages to the person injured, but shall be deemed guilty of a misdemeanor. 9. The sheriff or keeper of any public prison shall, every Jailer to day, cleanse the room of the prison in which any prisoner shall f ''^;^"a° J,'^''; be confined, and cause all filth to be removed therefrom ; and &c.— R. S. s. shall also furnish the prisoner a plenty of good and wholesome ^^' ^- ^■ water, three times in every day ; and shall find each prisoner fuel, one pound of wholesome bread, one pound of good roasted or boiled flesh, and every necessary attendance. 10. The court of pleas and quarter-sessions, from time to Blankets and time as may be necessary, shall order the sheriff of their t'edciothing county to purchase, for the use of their jail, a certain number prS.uers."'^ of good warm blankets, or other suitable bedclothing; which shall be securely preserved by the jailer, and furnished to the prisoners for their use and comfort, as the season or other cir- cumstances may require ; and the sheriff, at least once in every year, shall report to the court, the condition and number of such blankets and bedclothing. Provided, that whenever ne- Blankets, &e., gro prisoners are allowed to use said blankets or clothing, their "'""^ ^J' si'i'^es. owner shall pay to the jailers, besides the other fees, two and Tio. ' "' ^''' a half cents per day, for every blanket used by such prisoners ; which sum shall be accounted for to the court. 11. For the preservation of the health of such persons as Prison bounds shall be committed to the county prisons, the court shall mark p^sonert Md out such a parcel of the land as they shall think fit, not ex- out by court. ceeding six acres, adjoining to the prison, for the rules thereof; and every prisoner, not committed for treason or felony, giving Bond to keep bond with good security to the sheriff of the county to keep ''°g[J'^°'T?' ®' within the rules, shall have liberty to walk therein, out of the '^^ ' " ' prison, for the preservation of his health ; and on keeping con- tinually within the said rules, shall be deemed to be in law a true prisoner; and, that every person may know the true bounds of said rules, they shall be recorded in the county records, and the marks thereof shall be renewed as occasion may require. 12. Every such bond taken of any person confined for an Bond in enm- offence, or otherwise than on process issuing in a civil case, !"irnertTo''court shall be returned to the court by whose order or process such and deemed a person is confined, or which may be entitled to cognizance of '''^'^"e"'^-"'"- the matter, and shall be deemed of the force and" effect of a recognizance; and on breach thereof shall be forfeited, and shall be collected as a forfeiture, in the name and for the use of the State, and applied as other forfeited recognizances. 478 PRISONERS. [Chap. 87. Inciviicnseson 13. And every such bond taken of any person committed to'^s?aiu[as"e- °'^ *^i^i' process before final judgment, shall be returned to tiie cuiity for fiuai court whence the process issued, and shall be assigned to the ju gment. plaintiff therein ; and on breach thereof the bond shall stand as a security for any judgment which the plaintiff may re- cover against the defendant, and may be proceeded on and enforced in the same manner and under the same rules and restrictions, as are provided in the next section, for obtaining judgment against persons confined on final process. In cases of im- 14. Every such bond given by any person committed on a fi"a°proce3°° capias ad satisfaciendum, or in custody after final judgment, deemed a judg- shall be assigned by the sheriff to the party at whose instance such person was committed to jail, and shall be returned to the office of the clerk of the court where the judgment was On breach of rendered, and shall have the force of a judgment; and if any excfuded^frum pcson, who shall obtain the rules of any prison, as aforesaid, bounds.— R. s. shall escape out of the same, before he shaU have paid the e. 90, 6. 12. debt or damages and costs according to the condition of his bond, the court where the bond is lodged, upon motion of the assignee thereof, shall award execution against such person and his sureties for the debt or damages and costs, with in- terest from the time of escape till payment; and no person committed to jail on such execution shall be allowed the rules of prison. Provided, koivever, that the obligors have ten days' previous notice of such motion, in writing; but they shall not be admitted to plead non est factum in their defence, unless by alfidavit, they prove the truth of the plea. Prisoners, bow 15. The delivery of prisoners, by indenture between the late siieriff'ssuc- ^""^ present sheriff", or the entering on record in court the cessor.— R. S. names of the several prisoners, and the causes of their com- c. 8 , s. 13. mitment, delivered over to the present sheriff, shall be sufficient to discharge the late sheriff" from all liability for any escape . that shall happen. Prisoners to be 16. The sheriff or jailer shall confine those committed to his proper*apart- Custody in the apartment, provided and designated by law, for ments. persons of the description of the prisoner; and if a sheriff or TOnfinmgThem jailer, Wantonly, or unnecessarily otherwise confine prisoners otiierwise.— K. in his custodv, it shall be a misdemeanor in office. S. c. 90, 8. 14. •' Sect. 11. Prison rules: when prisoner for misdemeanor entitled to, 4 Ire. 543. Mltfn loml may be taken, 8 Ire. 175. Tender of bond bit prisoner, 1 Hawlis, 427. Remedy on bond, 1 Slur. 421. How discharged, 3 Mur. 270, 2 lb. 369. Chap. 88.] PROCESSIONING. 479 CHAPTER 88. PROCESSIONING. Sbctiox 1. Processioners of land nppoiuted by county court. 2. Oath and terra of office. 3. Owners to give written notice, and processioner to have a copy. 4. Land partly in two counties, Iiow processioned. 5. Processioner to make certificate and Section return it to clerk, &c. To be re- corded. 6. When line disputed, and processioner forbidden to proceed, lie shall report to court. Five freeholders then ap- pointed with processioner. 7. Person having land twice proces- sioned, deemed owner. Who not bound by processioning. 1. The county courts shall appoint one or more persons Processioners capable of surveying, to act as processioners in their respective 'ippo'nted^y counties, for the purpose of having processioned the lands of S. c. si, s. i.' such persons as desire it. And any processioner, when there are several, may act alone. 2. Every processioner shall take an oath of office, and shall Oath and terra continue in office until he resign or remove from the county, c!sM-2^^'^' or be displaced by the court. 3. The proprietor of any land who may desire to have it Owners to give processioned, shall give ten days' notice in writing to all per- ceslioucr'to^'^'*" sons whose lands maybe adjoining to his; a copy of which have a copy.— notice, signed by the person serving it, shall be delivered to the ^' ^' "' ^^' ^- ^■ processioner. 4. When a tract of land shall lie partly in two or more Land partly m counties, the processioner of either county shall procession the fX proc^^' same in like manner as if the whole tract lay in the same sioned. county. 5. The processioner shall make a plat of each tract of land Processioner to processioned, and also a certificate of the same, which certifi- "'Je and return cate shall contain the claimant's name, the quantity of acres, 't to clerk, &c. the corners, length, and course of each line, and shall be signed tv derk^-R?^ and returned with a copy of the several notices, to the court s". c. oi,'s. 5,6. of pleas and quarter-sessions of the county for which the pro- cessioner is appointed ; and the same, with the plat, 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. 6. In all cases where a line is disputed, and the processioner When line is forbidden by any of the persons interested in the event of '^ro^essfoner'^ the processioning, to proceed further in running and marking forbidden to the same, he shall report the matter, stating truly all the cir- f',';"Jf ^f^'^'/t to cumstances of the case, with the names of the persons who court. forbade further proceedings, to the ne.xt succeeding court of the county for which the processioner is appointed ; and the court shall thereupon appoint five respectable freeholders, who JrsTueutp-'^' 480 PUBLIC ARMS. [Chap. 89. pointed with shall appear \vHh the processioner on the line or lines so dis- ^"s.T'or.TT puted, and proceed (after being sworn by the processioner or some justice of the peace, to do equal right and justice be- tween the contending parties,) to establish such disputed line or lines, as shall appear to them right, and procession the same, and make report of their proceedings to the next succeeding court; which shall be recorded as above directed. Provided, nevertheless, that either of the parties may call in any other surveyor to act with the processioner and comi)lete such sur- vey ; and the party against whom the decision is made shall pay all costs. Person having 7. Every person whose lands shall be processioned to him, !;e"s'ioiTedf ^'™" according to the directions of this chapter, at two several times, deemed owner, 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 the general issue, and give the proceed- ings under this chapter in evidence. Provided always, that the processioning of the lands of a tenant for life shall not bar or preclude the heir, or other person in reversion or remain- ■Who not bound der ; neither shall any processioning bar or preclude/ewe coverts, hff^TsI™" psi'soiis under age, non compos mentis, imprisoned, or out of sits. 8.' 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. Sect. 6, Report of processioner, 7 Ire. '. lb. 23, lb. 185, 3 Mur. 604. when forbidden to proceed, 3 Ire. 204, 4 CHAPTER 89, PUBLIC ARMS. Sectioit 1. Public arms to be deposited in arse- nals, &c. 2. Keeper of arms at arsenals appointed by adjutant-general. Superintend- ent at Newbern, by governor. 8. Volunteer companies, how to obtain amis. 4. A town or senior colonel may, on giv- ing bond. 5. Arms distributed on invasion, &c. Section 6. Duty of ofEcers receiving arms. 7. Not keeping arms in order, penalty. 8. Selling, buying, or embezzling public arms, misdemeanor. 9. On death, &c., of the private, his arms delivered to successor. 10. Officers to demand public arms of persons not entitled. 11. Detachments in service may have arras, when. Public arms to 1. All the public arms of every description, belonging to the pubiicarsc^nais^ State, which may not be distributed among the militia accord- &c.— P.. S. c. ing to law. shall, under the direction of tiic adjutant-general, c.'i. ~" ' Ijc deposited and kept in the public arsenals established at Chap. 89.] public arms. 481 Raleigh and Fayetteville, and the depot of arnns in the town of Newbern or its vicinity, in such jiroportions as the governor may prescribe. 2. The adjutant-general shall, at each place where an arse- Keeper nf nal or depot of arms is established, appoint some suitable per- ^","* "tarse- c 1 111111 !• "'''^i appointed son keeper oi the same, who shall be allowed not exceeding by adjutant- sixty dollars per annum ; and the superintendent of the depot s^'^.'rfntend- of arms in the town of Newbern or its vicinity, for his services entatNew- and the rent of a building, shall receive one hundred and fifty emor— R^'sc dollars yearly; the one half thereof to be paid semiannually. 92, s. 2.— 1846, The adjutant-general may make regulations respecting the g'. ^'552*^' 52 duty of the superintendent; may require bond and security for the faithful discharge of his duty ; and at the pleasure of the adjutant-general he may be removed, and another appointed in his place. The governor may make such provisions as he may think necessary for guarding and protecting the arsenals and depots of arms; and for the purpose of defraying the ex- penses incurred under this and the preceding section, he may upon the certificate of the adjutant-general, from time to time draw on the public treasurer, for such sums as may be neces- sary. 3. "Whenever any volunteer company of infantry, light- Voiunteercom- infantry, or riflemen, artillery, or cavalry may be formed out oMa^'pubTic" of the militia, and it shall appear to the governor, by a certifi- arms.— R. S. c. cate from the brigadier-general of the brigade in which such 0.2^1854. ' company is formed ; or, in case of his death or absence, by the certificate of the highest officer in command of the militia of any county where such company may be formed, that the said corps has enrolled, as members, the number of officers and men required for such a company, and is otherwise equipped except as to arms and accoutrements, then the governor may direct such portion of the arms as may be necessary for the company, to be delivered to the commanding officer, taking his receipt for the same ; but no such officer shall be allowed to draw the arms before he shall have given bond, with two good sureties, if required, in double the appraised value of the arms, conditioned for the safe-keeping, cleaning, and returning thereof, whenever the company shall be dissolved, or the gov- ernor shall direct. 4. In case the public authority of any town, or the senior A town, or colonel of any county, shall petition the governor for any num- 'n.''y'''o';^ghhi" ber, not exceeding sixty-five stand, of the public arms, he is bonj'. — £. s." authorized to furnish them. Provided, bond be given, with '^' '''^''' ■*' approved security if required, for the safe-keeping, preserva- tion, and return of the same. And provided, that no one county shall receive a greater number than sixty-five, unless in case of insurrection or invasion. 5. In case of insurrection or invasion, or a probability there- Anns dis- of, the governor is authorized to distribute the public arms and v«l'i^!f &c?-^B. send them to such places as he may deem necessary and ex- s. c. w, s.'s. 41 482 PUBLIC ARMS. [Chap. 89. pedient, and to draw warrants on the treasurer of the State, for the sums necessary for that purpose. Duty of militia 6. When public arms shall be delivered to any colonel com- i'n^'^arms!— E? mandant, for distribution in his county, he shall take receipts S.°c. 92, s. 6. of the captains in whose hands they may be placed, and give the necessary orders for keeping the , arms safe and in good order ; and the captains, when they distribute the arms to their respective companies, shall take from each man a receipt at full length under seal, in the muster book of their companies, in double the value of the arms, conditioned for the safe-keep- ing and returning thereof, when called for by the colonel com- mandant; which muster or receipt book, shall be carefully kept, and be subject to the inspection of the colonel whenever he may desire it ; and on the death, resignation, or removal of the captain, the book shall be handed over to the officer who may be appointed to command the company. Not keeping 7. Every non-commissioned officer and private belonging to penalty for'!— ^ny company equipped with public arms, shall keep and pre- R. S. 0. 92, S.7. serve his arms and accoutrements in good order, and in a sol- dierlike manner ; and for every neglect to do so, shall be fined by the court-martial of his company, a sum not less than two nor more than ten dollars ; which fines shall be laid out by the captains for the repairs of the arms : and if a company so equipped shall generally keep their arms in a negligent and unsoldierlike manner, the colonel to whose regiment the com- pany belongs, shall deprive said company of the public arms and accoutrements, and bestow them on some other company of his regiment, under the regulations aforesaid. Selling, buy- 8. If any person to whom shall be confided public arms or Eifn<'°pu™ii'c^" accoutrements, shall sell, or in any manner embezzle the same, nnns, misde- or any part thereof, or if any person shall purchase any of e! M°T.'7^' ^' them, knowing them to be such, the person so offending shall be deemed to be guilty of a misdemeanor, and shall be fined not exceeding fifty dollars, and imprisoned not less than one month. On death, &c., 9. When any non-commissioned officer or private of such hL\?m™cieiiv- Company shall die, remove from the county, or be excused from ered to succes- performing military duty, the captain thereof shall immediately If^'Zfl ^' '^' take his arms and accoutrements into possession, and deliver them to his successor in the company: and the captain shall keep them safely and in good order, while they remain in his possession, omcers to do- 10. Every commissioned officer of the militia, whenever and mwof penons wherever he shall sec or learn that any of the arms belonging not entitled— to the State, are in the possession of any person other than in l£.s. c. 92, s. .^^jjogg imnti(j they may be placed for safe-keeping, under the provisions of this chapter, shall make immediate demand for the same, personally or in writing; and should such person refuse to deliver them to the officer, he shall be deemed guilty in like manner, and punished in like manner, as for selling or embezzling public arms. Chap. 90.] PUBLIC DEBT. 483 11. The governor may order the colonel commandant of the netachments county where any of the public arms may be distributed, to j|\*'^'"^'.'^''„™''y place the same in the hands of any detachment of the militia when.— ' ordered into the service of the State, or of the United States, f{ ''^ '^- ^^' ^■ if he shall judge it necessary. CPIAPTER 90. PUBLIC DEBT. Section 1. All bonds and certificates of debt is- sued by the State to be registered. 2. Bonds and certificates transferable. Mode of transfer. 3. In what manner State bonds shall be executed, &o. Coupons of interest attached. Money where payable. No bond less than S1,0C0 to issue; or be sold under par. Section 4. A memorandum of State bonds, with numbers, &c., to be kept. 6. What State bonds exempt from tax. 6. Guardians, executors, and trustees, may invest in State bonds. 7. Title of the act, or date and chapter, to be recited in the bond. 1. The bonds of the State for five hundred thousand dol- All bonds and lars issued under the authority of the act of the General dob't'\ssu'ea°by Assembly of the year eighteen hundred and forty-six, entitled State to be reg- " An Act to provide for the transfer of the bonds of the Ra- '^^'g'' 3'^2T ^845' leigh and Gaston Railroad Company, indorsed by the State," c. 39, s. i. and payable on the fii-st day of January, eighteen hundred and sixty: the "certificates of debt" issued on behalf of the State for the sum of two hundred thousand dollars, under the authority of the act of the General Assembly of the year eighteen hundred and forty-eight, entitled " An Act to provide for the payment of the debt of the State to the Bank of Cape Fear, to the Bank of the State, and other debts due on ac- count of indorsement by the State for the Raleigh and Gaston Railroad," and payable at the end of ten years from the date of the issue of said certificates, respectively : the " certificates of debt " of one hundred and twenty thousand dollars, issued under the authority of the act of the General Assembly of the year eighteen hundred and forty-eight, entitled " An Act to incorporate the Fayetteville and Western Plank-Road Company," and payable at the end of twenty years from the date of the issue: the "certificates of debt" already issued, and which may b'e issued, for two millions of dollars, under the authority of the act of the General Assembly of the year eighteen hundred and forty-eight, entitled " An Act to incor- porate the North Carolina Railroad Company," and payable at the end of thirty years from the date of their issue : the " certificates of debt " for two hundred thousand dollars, issued under the authority of the act of the General Assembly of the 484 PUBLIC DEBT. [Chap. 90. year eighteen hundred and fifty, entitled " An Act to provide for the payment of the debt of the State," and payable in like time : and ail other bonds and "certificates of de>bt," ii5sued by and in the name of the State, or which may hereafter be is- sued by the authority of any statute now or hereafter to be enacted, shall be duly registered by the public treasurer, in a book to be kept by him for that purpose. Bonds and cer- 2. All bonds or certificates of debt of the State, which now 'ifio^J^s t'^*"^- are or hereafter may be issued on behalf of the State, shall Mode of trans- be transferable : such as are payable to bearer, by delivery ; ^f'T'^jjjQ" and such as are payable to the holder by name alone, may be 0.58,8.4; 1852, transferred by the holder, or by his agent, in a book to be kept "=• 11- for that purpose by the public treasurer, on surrendering for cancellation the outstanding bond or certificate ; and in this latter case of transfer, a new bond or certificate for the same amount shall be issued. In what man- 3. All bonds Or Certificates of debt of the State, hereafter "er State bonds ^Q be issued as originals, or as substitutes for such as may be cuteii,&c. surrendered for transfer, by virtue of any act now or to be hereafter passed, shall be signed by the governor, and coun- tersigned by the public treasurer, and sealed with the great seal of the State, and shall be made payable to such person by name as may be the purchaser, or to bearer ; and the prin- cipal shall be made payable by the State, at a day named in Conpons of in- the bond or certificate. And coupons of interest, in such terest attached, fgj.^ ^g j^^y be prescribed by the public treasurer, shall be Money, wliere .' ^.^ i, -^j i paj'abie. attached to the certificate, and the certificates and coupons tonTiooo to^t.tached thereto, shall be made payable at such bank or place issue; or be in the city of Ncw York, as the public treasurer may desig- — 1848''" sd"^' "^t^' °^ ^^' *-^^ office of the public treasurer at Raleigh, if pre- .=.22; 1852,0. ferred by the purchaser. Provided, howeve?; that if the pur- 9, 10, 8. 1. chaser or holder so may desire, the bond or certificate shall be payable to him alone, and not to bearer. And provided fvrtJter, that no certificate shall issue for a less sum than one thousand dollars, unless the same be issued for a surrendered bond of less amount: nor shall any original bond or certificate of debt of the State be sold for a sum less than par value : nor shall any such bond or certificate, issuing in lieu of a transferred bond or certificate, be payable elsewhere than may be the original, except, by the consent of the holder, it may be made payable at the public treasury. A memoran- 4. The public treasurer shall enter in a book to be kept for b3s°wftl'i'"' that purpose, a memorandum of every bond, or certificate of numbers, &c., debt of the State, issued or to be issued by the State, under i'ssif 0^10^2. any act whatever, together with the numbers, dates of issue, when and where payable, at what premium, and to whom the same may have been sold or issued. What State 5. The original bonds, or certificates of debt of the State, from\axati'on which havc been issued since the first day of January, eighteen — 1S62, c. 10, hundred and fifty-three, or which may hereafter be issued *• *■ under the authority of any act whatever; as likewise the bonds Chap. 91.] PUBLIC DOCUMENTS. 485 ay invest in Stnte bonds. — 1650, c. 90, s. 2. and certificates substituted for such original bonds and certifi- cates, shall be, they and the interest accruing thereon, exempt from taxation. 6. Guardians, executors, and other persons, holding funds in Guardians, ex trust to be invested and kept on interest, may, unless prohib- tras'°'es may ited, invest the "same in bonds or certificates of debt of the State, or in any securities for the payment whereof the State is responsible, now or hereafter to be issued ; and in all settle- ments they shall be deemed cash, and may be paid as such by transfer thereof to the persons entitled. 7. In every bond or certificate of debt issued by the State, Title of the act, and in the body thereof, shall be set forth the title of the act, chapter"" be with the year of its enactment, under the authority of which recited in tiie the same may be issued ; or reference thereto shall be made by °" " the number of the chapter, and the year of the legislative session. CHAPTER 91. PUBLIC DOCUMENTS. Section 1. Public documents of federal govern- ment, how distributed. Section 2. Secretary to furnish documents to New York Historical Society. 3. Library of documents established. 1. The laws of congress, and all the other public printed Public docu- documents, transmitted to this State by the general govern- frovernment. ment, shall be distributed by the secretary of State in the fol- how distribu- lowing manner, to wit : two copies to each of the counties, 94^ 's. i.' which shall be deposited in the offices of the superior and county courts in each county, for the use of the courts ; one * copy to every judge of the supreme court, and the superior courts of law and equity ; one to the attorney-general ; one to each solicitor ; one in each of the offices of governor, secre- tary of State, treasurer, and comptroller ; three copies in the library of the university ; and three copies retained in the pub- lic library, for the use of the members of the assembly, and other public functionaries. 2. The secretary of State shall furnish to the agent or order Secretary to of the New York Historical Society, in the city of Raleigh, ments to New one bound set of all official documents, including the decis- y<"k Historical ions of the supreme court and the laws and journals of the Ke™ ■* ' General Assembly of the State, which may be published un- der the laws, or by order of the General Assembly. 3. The principal clerks of each house of the General As- Uhrai-y of dnc- sembly shall collect such printed documents as have been, or [S™,ej'l^is54" shall hereafter be ordered to be printed by the General Assem- c. 24. bly, to the number of three copies of each document for each 41* 486 PUBLIC LIBRARY. [Chap. 92. house, and cause the same to be bound in convenient form, and keep them on shelves which they shall cause to be erected in their offices, for the use of the members of their several houses. CHAPTER 92, PUBLIC LIBRARY. Section 1. Five hundred dollars j'early appro- priated to librarj'. 2. Governor, and judges of supreme court to be trustees and appoint librarian. His salary. 3. His dutj'. 4. Governor to designate docnments to $500 yearly appropriated to library. — 1840, c. 46. Governor and judges of su- preme court to be trustees and appoint libra- rian. His salary. — 1840, if. 46, s. 2, 7; 1842,0.68, %. 2. His duty. — ]840,c.46,s.B 1844, c. 62. Section be preserved and bound. What books to be bound and labelled. 5. Penalty for injuring books. 0. Tax on attorney's licenses at Morgan- ton, expended for books. 7. Judges may transfer law-books from Baleigh to Morganton. Governor to designate docu- ments to be preserved and bound. 1. The sum of five hundred dollars is annually appropriated for the increase of the public library of the State. 2. The governor, and judges of the supreme court, and their respective successors in office, are appointed trustees of the State library ; and all moneys appropriated for its increase shall be laid out under their direction and supervision : the judges of the supreme court, in the absence of the governor, or the governor and any of the judges, in the absence of the others, shall be a quorum, with all the authority vested in said trustees. The trustees may make such rules and regulations in regard to the library and the use of the books, as they may deem best ; they shall appoint a suitable person as librarian, at a salary not exceeding three hundred dollars a year, who shall give bond with security, in such sum as they may deter- mine, payable to the State of North Carolina, conditioned for the safe-keeping of the books, and the faithful discharge of his duties. 3. The librarian shall keep the library open for the accom- modation of the public, on every day in the year, between the hours of nine and twelve o'clock, M., and between two and five o'clock, p. M., (Sundays and the fourth day of July ex- cepted) ; he shall prepare and have printed a catalogue of all the books in the library, and shall report to each succeeding General Assembly any increase or diminution of the cata- logue; he shall procure and preserve in the library two of the princi|)al newspapers in tlic State, and five copies of the jour- nals and of the acts of tlie General Assembly. 4. The governor shall designate such portions of the docu- ment.s, journals, and acts of the congress of tlie United States, as he may deem proper to be preserved in the library ; may designate which of them are to be bound, of such pamphlets, Chap. 93.] PUBLIC PRINTING. 487 acts, and journals of the General Assembly, works of periodical literature, laws of other States, and documents of the General Assembly, that may be added to the library ; and the librarian shall have them boand. And all the books belonging to the ^e'l''oundtnd° library, or which may be added thereto, shall be labelled in labelled.— isio, gilt letters with the words " State Library;" and the governor 5842'c'6Vs 3. may draw upon the treasurer for such sums as may be neces- sary to defray the expenses thereof. 5. Any person who shall damage, deface, or mutilate any [Ifring^o^o^s — book which he may be allowed to withdraw from the library, 1842, c. 68, s.i. or who shall return any book so damaged, defaced, or muti- lated while in his possession, shall forfeit and pay the full amount of the damage; which amount shall be determined by the librarian, but in no case to exceed double the value of the book ; and the fines and forfeitures accruing under this sec- tion, shall be sued for and recovered by the librarian in the name of the State, before any justice of the peace ; and the librarian shall be a competent witness to prove any fact material to the issue ; and the fines and forfeitures recovered shall be added to the fund for the increase of the library. 6. The clerk of the supreme court at Morganton, under the Tax on attor- direction of the judges shall apply the taxes on attorneys' "tMor^anton licenses, that may be paid to him, to the purchase of law- expended for books for the supreme court library at Morganton. c. 93. ' 7. The judges of the supreme court may direct the clerk at Judges mar T» 1 • ti-insfer law- Raleigh to transmit to the court library at Morganton, all such books from law-books as can be spared from the library at Raleigh. Raleigh to ' ./ o Morganton. — 1850,0.93,6.2. CHAPTER 93. PUBLIC PRINTING. Section 1. State printer elected biennially. What printing to be done. Pay. 2. To give bond in five thousand dollars. 3. Bills, &c., in whatm.inner printed. 4. A practical printer to assist in esti- mate of work done. His compensa- tion. 6. Paper furnished, and binding, con- tracted for, by secretary of State. Paid for, on governor's warrant. 6. Copy, when to be furnished, nnd work completed. Laws distributed by sec- retaiy. 7. Journals, number of copies printed, aud for whom. Section 8. Acts, how aiTanged. What printed on the margin. Index to all the acts. 9. Number of copies to be printed for members, &c., and bound in leather. Additional number stitched. Num- ber of public documents. Justices' names to be recorded by secretary of State. Clerks of county courts to furnish list of justices. 10. Blanks to be printed for offices of gov- ernor, treasurer, &c. 11. Vacancy in office of printer, filled by governor. 12. Repealing clause. 1. A State printer shall be biennially elected by the joint f/^.'J,';';, j"'^^^" .. vote of the two houses of the General Assembly on the second ijiy.' 488 PUBLIC PRINTING. [CiLVP. 93. What printing to be done. Pay of. To give bond in $5,000. Bills, &c., in what manner printed. A practical printer to assist in estimate of work done. His compen- sation. Paper furnish- ed, and binding contracted for, by sec'y State. Paid for on governor's war- rant. When copy to be furnislicd, and work com pleted. Laws distrib- uted by sec'y. day of the session, who shall execute the printing of the acts of the General Assembly, the journals, the bills, and all other documents, and all other printing of whatsoever kind, which may be ordered to be done by the General Assembly, except the Revised Code, at the following rates, to wit: for every one thousand cms of plain work, he shall be allowed sixty-two and a half cents, and for every one thousand cms of rule and figure work, one dollar and twenty-five cents, and for every token, sixty-two and a half cents. 2. The State printer shall give bond, with approved secu- rity, payable to the State, in the sum of five thousand dollars, conditioned to perform faithfully his duties under this chapter. The bond must be approved and accepted by the governor, and shall be filed in the office of the secretary of State. 3. The bills and all other documents ordered to be printed by either branch of the General Assembly, shall be printed in octavo form, without a title-page. But the first page shall be printed as follows : at the head of the page, there shall be four rules, one double, two single, and one parallel, extending across the page. Between said rules shall be printed, first, the name of the house where the bill originated, with the year and date of the session, the name of the introducer, and the name of the printer; after leaving a space the width of two line pica, a synopsis, or caption of the bill, or report of the committee, or whatever it may be, shall be set up with pica capitals. After such heading, the said document to follow immediately, com- mencing with a paragraph, allowing a space the width of small pica between the heading and commencement of the same. 4. In estimating the amount of work done, the State printer shall be allowed to count the first page as solid matter; and the secretary of State shall, before having a final settlement with the State printer, call in to his aid a ])ractical printer, for the purpose of estimating the amount of work done ; and any printer so called in, shall be allowed a compensation not ex- ceeding three dollars per day. 5. AH the paper for the printing aforesaid, shall be furnished by the secretary of the State, of such quality as may be deemed suitable for the work. The secretary of State shall also contract for the folding, stitching, and binding of all work authorized by this act; and the same, together with the cost of the paper aforesaid, shall be paid by the treasurer, on a warrant frorn the governor upon certificate of the secretary. 6. The secretary shall, within thirty days from the adjourn- ment of the General Assembly, furnish the State printer with complete copies of all the laws ; and the clerks of each house shall, wilhin twenty days thereafter, deliver to the printer afore- said, complete copies of the journals. The printer after com- pleting the laws and journals, shall have them addressed to those entitled to them, and packed up in parcels for each county, and delivered within ninety days from the close of the session, to the secretary of State, who shall distribute ClIAP. 93.] PUBLIC PRINTING. 489 said journals, acts, and documents by mail, express, or some discreet person, as he may deem most expedient. 7. A sutTicient number of the journals of the General As- .Journals, nnm- sembly shall be printed to supply each member wit li a copy, p|:j''^"^j^"jP'^* five copies to the State library, one copy to each of the offices tor whom. of governor, secretary of State, treasurer, and comptroller, two copies to each of the libraries of the senate and house of com- mons, one to the university library, and one to the office of each county court clerk in the State. Each of the aforesaid copies to be bound in leather. 8. The acts of the General Assembly shall be divided into ■^^^\l'"^ ^''" two parts or volumes, and numbered by chapters continu- what printed ously through each volume. The number of the chapter and on the margin. •' r .< ^ ■ ii -ii xu • f Index to rU year of the session, to be prmted on the margm ot every page, the acts. in Arabic figures of suitable size ; the first part or volume to contain an index of all the acts and resolutions of the Gen- eral Assembly, the public laws, and the comptroller's state- ment of the public revenue and expenditure: the second vol- ume shall contain all the acts and resolutions of a private and local nature, embracing all acts granting corporate privileges. 9. A sufficient number of each of the volumes (embracing N'™\«"''.<"'P" 11 IT 1 • \ I n 1 • , 1 J 1 lestobepnnt- both public and private acts) shall be prmted to supply a copy ed, for mem- to each member of the General Assembly, a copy to the offices bers, &c. of governor, secretary of State, and comptroller, and to each of the clerks of the county courts, superior courts, and clerks and masters in equity of the several counties of the State, and the clerks of the supreme court, one copy to each of the judges of the supreme and superior courts, and to the attorney-gen- eral and solicitors, five copies to the State library, ten copies to each of the libraries of the senate and house of commons, one copy to the library of congress, one copy to the governor of each of the States and Territories of the United States — each of said copies to be bound in leather. There shall also Bound in leath- be printed an additional number of the first volume of public Additional acts, to be stitched, to furnish one copy to every sheriff', regis- ™™''^"""=''" ter, county solicitor, and to each justice of the peace of the several counties of the State. The printer shall also deliver to the secretary of State, a sufficient number of public docu- ments, (including the governor's message and inaugural, and excluding bills,) as either branch of the General Assembly may order to be printed, to furnish two copies for the State library, two for the executive olfice, ten to each of the libraries of the ^u™ie''docu- senate and house of commons, one to the university library, ments. and one to each member of the General Assembly; all of which volumes shall be bound and distributed along with the journals and acts, as directed in the provisions of this chapter. The secretary of State shall record in a book kept for that justices' names purpose, the names of all the justices of the peace for the [^"."1,'^,^',*''^°^'^'''^ several counties of the State ; and whenever a vacancy occurs, siuto. it shall be entered therein, and the clerks of the several county ^,J;j',!^J„"^,r,"i5h courts shall, on the third Monday of November, one thousand lut of justice*. 490 QUARANTINE AND HEALTH. [Chap. 94. Blank fornis to be printed for offices of gov'r, treasurer, &c. Vacancy in of fice of printer, filled by gov'r. Repealing clause. —1854, c. 36. eight hundred and fifty-six, and every two years thereafter, furnish the secretary of State with a correct list of the justices of the peace of their several counties, and by this list shall the public laws and journals be distributed. 10. The governor, secretary of State, treasurer, comptroller, and adjutant-general, may have printed for their several offices, such blank forms and other necessary printing, as may be suit- able and proper to enable them to discharge their duties ; and the treasurer shall cause to be printed one hundred copies of his report, for the use of his office. The charges for which printing shall be reasonable and just, to be adjudged of and allowed by the board composed of the governor, secretary of State, treasurer, and comptroller. 11. Any vacancy occurring in the office of public printer, during the interval between the meetings of the General As- sembly, shall be filled by appointment of the governor. 12. All laws and clauses of laws, coming within the mean- ing and purview of this chapter, are hereby repealed. CHAPTER 94. QUARANTINE AND HEALTH. Section 1. Quarantine, •when and by whom di- rected. Masters and pilots to report the health of vessels. Duty of those ordered to perform quarantine. Pen- alties on masters and pilots. 2. Vessel coming from infected place, to anchor at quarantine ground. Com- ing into port without permission, master or pilot indictable. 3. Such vessel to be removed. i. Port physicians appointed. 5. Penalty on passengers or crew break- ing quarantine. 6. On person going on board without leave — and on master allowing it. Such person to remain on board. 7. Person breaking quarantine arrested and sent back. 8. Penalty for lauding articles. 9. Afliilavit of health required of master. Penaltv for false statement. Section 10. Provisions furnished vessels, &e. 11. Penalties, how recovered and applied. 12. Penalty on pilots, bringing in vessels without certificate, &c. 13. Commissioners of navigation may ap- point harbor master and health-offi- cer, and enact b3'-laws, &c. 14. Of seaport towns, where no commis- sioners of navigation, to have like authority. 15. Nuisances in seaports, what deemed such. 16. Lots in, kept drained at certain sea- sons. Penalty for neglect. Com- missioners may abate nuisance at owner's expense. 17. Officers of police, to provide against contagious diseases. IS. Hospitals established by county court, and commissioners of towns. 19. Proviso to the foregoing sections. Quarantine, 1. TiiE Commissioners of navigation in the respective ports whomdlrected. ^"^^ inlets of the State, and where there arc no such commis- sioners, any three justices of the peace convenient to said ports or inlets, or the commissioners of any seaport town, shall meet together and appoint such place or places, as they may think proper, for vessels to perform quarantine ; and when a vessel Chap. 94.] quarantine and health. 491 shall arrive at any of the said ports or inlets, having an infec- tious distemper on board, or which came from any place that was, at the time of her sailing, or shortly before, infected with any rnalignatit disorder, the master and pilot of the vessel shall anchor her at the place so appointed, and give immediate in- Masters and formation thereof to the commissioners of navigation, or to the LaUh of "ves" commissioners of the seaport town ; or, where there are no ^'='- commissioners, to the nearest justice of the peace, who, with two others to be summoned by him, or any three of the com- missioners aforesaid, or any one commissioner and t^vo justices, or any one justice and two commissioners, shall thereupon cause such vessel and her crew to be examined by at least one experienced physician, when to be had; upon whose report in ' writing, (which said physician is required to make,) and on other information they may receive, any three of such com- missioners, and where there are no commissioners, any three neighboring justices, or any one commissioner and two justices, or any one justice and two commissioners, or the commission- ers of the town to which such vessel is bound, may order and command the master of the vessel, crew, and passengers to perform quarantine, as by them shall be deemed most proper and requisite, to check or prevent any infectious distemper from spreading in the State; and every person on board such vessel directed to perform quarantine, shall from time to time. Duty of those during such quarantine, obey all orders given by the authority form quarau- of the said commissioners or justices, respecting the victualling, '■'"'^• purifying, and cleansing of such vessel, and all persons and articles on board, and the intercourse of the said persons with the inhabitants of the State, the receiving any persons on board, or the putting them on shore ; and if the pilot or mas- ter neglect to give such information as above required, the Penalties on pilot, for such neglect, shall forfeit and pay one hundred dol- "tT ninh"" m ' lars, and the master, for the like neglect, shall forfeit and pay duty.— r. s. o. two hundred dollars. And in case the master of any vessel, so '' ' ordered to perform quarantine, shall refuse to comply with, or fail to fulfil, the orders, for performing quarantine with his ves- sel as aforesaid, he shall forfeit and pay two hundred dollars for each day he shall fail to perform the quarantine ; for which forfeiture the property of the captain, with the vessel and cargo, shall be liable, if it shall appear that the breach of the order was by the consent of the owner or consignee ; but if the owner or consignee did not consent, then the master of such vessel only shall be liable. 2. If any vessel shall be brought into the State from a place, J|^*^«i coming which at the time of her departure was infected with the place, to an- yellow fever, smallpox, or other infectious disorder; or if any J^i','°',rround™"" vessel, arriving in the State, shall have the smallpox or yellow fever or other infectious disorder on board, or shall have had such disorder on board during her passage to the State, such vessel shall be anchored at the place appointed for quarantine, and there remain, until permitted to remove by the commis- 492 QUARANTINE AND HEALTH. [ChAP. 94. sioners of navigation, or by the commissioners of the town to Comiiisinto which the vessel is bound, or by the justices aforesaid; and if permTsston';" any such vessel shall come to such town, or into its harbor, master or pilot without permission obtained as aforesaid, the pilot or master, S.''c?9t's-I-'^' conducting the vessel, or ordering or permitting her to be con- ducted to such town or harbor, shall be subject to indictment; and upon conviction shall be fined not less than one thousand dollars, and imprisoned not exceeding one year. Such vessel to 3_ 'Yhe commissioners of navigation, or the commissioners B!s!^'s7,'i'r3. of the town, in the harbor of which any vessel shall have arrived in violation of this chapter, or the justices as aforesaid, may use such force as shall be necessary to remove said vessel to the place of quarantine ; their reasonable charge for which service shall be paid by the master or owner of the vessel, and may be recovered of either of them before any jurisdiction hav- ing cognizance of the sum due. Portphysicians 4. The commissioners of navigation in the several ports of sT'96tt7.^" the State, and, where there are no such commissioners, the commissioners of the several seaport towns, may appoint port physicians, and regulate and prescribe the fees to which they shall be respectively entitled, according to the difterent quaran- tine stations; which they shall be bound to attend for the pur- pose of inspecting vessels, as required by this chapter, and giving certiticates of their situation and condition, in regard to the health of their respective crews and passengers. PenaltTon 5. When a vessel shall be directed to perform quarantine, crew bfeaidng and any seaman or passenger shall, contrary to the order and . quarantine.—" direction of the commissioners or justices as aforesaid, leave ii. S. c.96,s. 5. ^^^ vessel and land on any other place than they shall allow of, every person so offending shall forfeit and pay two hundred dollars for each offence ; and when he shall have left the vessel with the master's consent, the master shall pay a like penalty of two hundred dollars for every such offence of any of his passengers or seamen. On person go- Q, When any vessel shall be directed to perform quarantine, wfthTut'ieave, and any person knowing of such order, by the information of and on master -fhe master or otherwise, shall go on board of such vessel with- permitting it. ^^^^ permission of the commissioners or justices aforesaid, every such person shall forfeit and pay one hundred dollars. And if any person shall be permitted by the master to come on board, without informing him of the order and directions of the com- missioners, or justices of the peace, the master shall forfeit and pay two hundred dollars for every person so offending, and four hundred dollars for suflering any person so on board to depart his vessel, without leave of the commissioners or justices aforc- Snch person to g^^jj ; and the said commissioners or justices are empowered to brard!— K. S. order every person who shall go on board any such vessel, to c. 96, s. 6. remain there for such length of time as they may think proper; and if he disobey such order, he shall pay one hundred dollars. Person break- 7. The commissioners or justices aforesaid, or a majority of arrest"ed and™' them, respectively, may issue their warrant to any sheriff or Chap. 94.] quarantine and health. 493 other officer, commanding him to take the body of any person sent back.— R. that may have left any vessel ordered to ride quarantine, and ^' ''■ ^^' '• ''■ carry him on board of said vessel ; and the said officer may summon such persons to assist him in the execution of the warrant, as he may think fit. 8. If any master of a vessel, ordered to ride quarantine, shall Penalty for convey, or cause, or permit to be conveyed, any article of irticief,-K. s. goods, wares, and merchandi.se from his vessel on any other <^- ^'5- "• ». land, or into any other boat or vessel, than the said commis- sioners or justices shall authorize, he shall forfeit and pay two hundred dollars for every such offence. And any other person so conveying, or causing to be conveyed, any article as above ' mentioned, shall be liable to the like penalty. 9. The said commissioners or justices may, whenever they Affidavit of think proper, require the master of a vessel, on his arrival in ormL'er""'"* the State, to declare on oath the state of the health of himself, crew, and passengers, and of the place from whence he came. And if any master shall give a false declaration, or any phy- Penalty for sician shall wilfully give a false certificate of the health of the ^enV-Ts persons on board any such vessel, he shall forfeit and pay two c. 96,' s. 9.' thousand dollars. 10. The commissioners or justices are empowered and Provisions fnr- directed to furnish any vessel, ordered to ride quarantine, with &c''-!-r!s.'c.'' a sufficient quantity of good wholesome provisions, for the s^. s- W- expense of which the master, vessel, and cargo shall be liable. 11. All penalties and forfeitures imposed or allowed to be Penalties, how imposed by this chapter, may be recovered and applied, one app°iieT-R"s. half to the use of the informer, the other half by the commis- «■ '-"^^ '• n- sioners of navigation, for the use and benefit of the navigation of the port, within whose jurisdiction the penalty or forfeiture may have been incurred. 12. If any pilot shall bring any vessel beyond the place Penalty on fixed and limited by the commissioners of navigation, without EJ'vSseiswIth? a certificate of the health-officer declaring that there is no out certificate. danger to be apprehended from any infectious disease on board ^12 ^' ''' ^^' said vessel, such pilot shall forfeit his branch or commission, and from thence be deemed incapable to act as a pilot in any port of the State. 13. The commissioners of navigation of the several seaport Commissioners towns in the State, shall have power to appoint a harbor mas- "[ ™''J^''ohi" ter and health-officer ; to prescribe their duties and authority ; So? master to make rules and regulations for their government ; allow them ^"f S enacT a reasonable compensation for their services, and determine by-ia''«-s, &o!— how such compensation is to be paid. And they shall have fg ^- "■ ^^' '• power to pass such by-lavi^s, (not inconsistent with the laws of the land,) for the better regulation of the quarantine to be per- formed by Vessels, arriving from ports infected, or suspected to be infected, with any infectious disease, and for preventing all intercourse between such vessels and persons on shore, as to them may seem meet and proper, and to enforce obedience to 42 494 QUARANTINE AND HEALTH. [ChaP. 94. such by-laws, by imposing such penalties as they may think proper. Of seaport 14. The commissioners of the several seaport towns, and towns where no ^ having a port of entry, where there are no commission- cotn r 01 nav.j o r J ' i i • to have like ers of navigation, shall have the same power and authority s'oTo's TZ'' ^"'^ ^^ subject to the same duties, as are herein directed and prescribed for the commissioners of navigation, in relation to the quarantine of vessels, in the ports of their respective towns ; and all persons offending against the regulations of the com- missioners of such towns, shall be subject to the same fines, penalties, and forfeitures, as though the said regulations had been made by commissioners of navigation. Nuisances in 15. All ponds of stagnant water, all cellars and foundations what del^med'' oi houses ; whose bottoms contain stagnant and putrid water, such.— R. s. all dead and putrefied animals lying about the docks, streets, 0. 96, s. 15. lajjeg^ alleys, vacant lots, or yards, all privies that have no wells sunk under them, all slaughter-houses, all docks whose bottoms are alternately wet and dry by the ebbing and flow- ing of the tide, all accumulation of filth in the streets, lanes, alleys, and gutters thereof, all accumulations of vegetable and animal substances undergoing putrefactive fermentation, in any of the seaport towns of the State, are hereby declared common nuisances, productive of offensive vapors and noxious exhalations, the causes of disease, and ought to be restrained, regulated, and removed. Lots kept in ig. Every person, possessed of a lot in any seaport town, drame/at'cer-'which, from its low or sunken situation, is liable to retain tain seasons, tide, or rain water, or on which cellars or foundations for build- ings may be dug, (whether a tenement be erected over the same or not,) shall, during the months of June, July, August, September, and October, preserve and keep the said lot, cel- lars, and foundations dry and free from stagnant or putrid waters and other filth ; and any person offending herein shall Penalty for forfeit and pay five dollars for the use of the town, for every neglect. -week he shall suffer such stagnant or putrid water, or other filth, to remain therein. And if the said owner shall, notwith- Com'rs may standing the above provisions, neglect to remove such stagnant abate nuisance qj putrid Water or other filth, the commissioners of the town at owners ex- • ' , . . i ponse.— R. s. may employ any person, upon such terms as to tnem may c. 06,3.16. seem reasonable and just, to remove such filth or stagnant or putrid waters ; and the expense shall be considered as a further fine for not complying with the provisions of tiiis section, and shall be collected accordingly, and shall also be a lien upon the lot upon which the same has been expended. onicersofpo- 17. When an infectious disease shall be raging in any part against FXi^" o^ the State, or in any part of the United States, the officers auction of con- of policc of any incorporated town, who may have well- e^is"— r's founded apprehensions, that their town is in danger of being 0. 96, s. 17. ' visited by such disease, may take such precautionary measures, and provide such penalties for the breach of them, as may seem necessary and proper ; the expense of which they are Chap. 95.] quo warranto and mandamu.?. 495 authorized to defray out of any money, at the time, in their town treasury ; or, if that should not be in a situation to sus- tain the expense, to borrow such sum as may be necessary to defray the same, and afterwards to raise the amount by tax on the inhabitants of such town, over and above the ordinary taxes levied for the current expenses of the town. 18. The county court, a majority of the justices being Hospitals estab- present, may establish public hospitals for the county; and |,ounfy''^our( the commissioners of every incorporated town may do the and cbmmis- same for the town : and the said county court, and the com- Ji°,^^ °^ missioners of such town, may make all such rules, regulations, and by-laws as they may deem needful, for preventing the spread of contagious and infectious diseases, and taking care of the afflicted, the same not being inconsistent with the laws of the State. 19. Nothing contained in the preceding sections, shall be Proviso to the construed to lessen or impair the power and authority of the [j'onf'^l *s*^" commissioners of the seaport towns, or the commissioners ofo. 96, s. 18. navigation, or other oificers, under the quarantine laws of the State, to prevent the introduction of diseases by vessels arriv- ing at or near said seaport towns. CHAPTER 95. QUO WARRANTO AND MANDAMUS. Section 1. Informations, in what cases, and by ■whom, filed. Nature of proeeedings. In eertain cases, several rights may be tried in one information. Pleas filed first term, unless, &c. 2. Upon conviction, what judgment. Costs adjudged to party succeed- ing. Section 3. Eeturn to be made to first manda- mus. 4. Time given by court to make return, plead, &c. 6. Returns may be contested: proceed- ings thereon. On verdict for plain- tiff or defendant, what consequences shall follow. 1. Where any person shall usurp, intrude into, or unlaw- informations, fully hold or execute, any office or franchise, the attorney-gen- '" ^'''='' "J*'®^' eral or solicitor for the State, in the superior court of the county med. ^ ^ *"" within which the office is situate or the franchise is held and exercised, with the leave of the court, may exhibit an in- formation in the nature of a quo toarranto, at the relation of Nature of pro- any persons desiring to prosecute the same, (who shall be ccedings. mentioned in the information to be relators,) against such per- sons so usurping, intruding into, or unlawfully holding or ex- ecuting said office or franchise ; and the court shall proceed therein, in such manner as is usual in cases of information in the nature of a quo laarranlo ; and if it shall appear to the in certain court that the several rights of divers persona to the said office '='"^''' *'=™''"' 496 QUO WAKBANTO AND MANDAMUS. [ChAP. 95. rights may be or franchise may properly be determined on one information, fonnaUon"^ '"' *^^ court may give leave to exhibit one such information against several persons, in order to try their respective rights; and such persons shall appear and plead, as of the same term Pleas filed first in which the information is filed, unless the court shall give wm, unless, further time ; and the persons, who prosecute such infor- mation, shall proceed thereupon with the most convenient speed. Uponconvic- 2. When any person shall be found guilty of an usurpation, judgment! intrusion into, or unlawful holding or executing any office or Costs adjudged franchise, the court may both give judgment of ouster, and fine «e'ding.'"°" such person, and also give judgment that the relators shall re- cover their costs ; and if judgment be given for the defendant, he shall recover his costs against the relators. Return made 3. When any writ of mandamus shall issue, the return to first manda- ^^^^^^.^ g|^j^n ^^ j^^^^je to the first writ mns. Time given by 4. The court, to whom such return is to be made, may ret"urn',°pleadf allow the person, to whom any writ of mandamus shall be &c. ' ' directed, or against whom any information in the nature of a quo warranto in the cases aforesaid, shall be prosecuted, or the persons who shall prosecute the same, such convenient time to make a return, plead, reply, rejoin, or demur, as shall seem just. Returns may 5. Where any mandamus shall issue, and a return shall be proceedings'"' made, the person suing the mandamus may plead to or trav- thereon. erse all or any material facts contained in the return, to which the persons making the return shall reply, take issue, or de- mur; and such proceedings shall be had therein, as if the per- son suing the writ had brought his action on the case for a false return ; and if issue shall be joined, the person suing the writ may try the same in such place, as issue joined in such On verdict for action on the case might have been tried; and in case a ver- piaintitjorde- jj^j. j^g founj for the pcrson suing the writ, or judgment given fendant, what ... , ,,, "^ , ° , I u-iii consequences for hmi, he shall recover damages and costs as he miglit nave R^S c^'oT-^ '^°"'^ ^" ^^^^ action on the case, and a peremptory writ of Anne, c. 20, .. mandamus shall be granted, without delay, as if such return 1, 2, 4, 5, e. jj^j {jpg,^ adjudged insufficient ; and in case judgment shall be given for the persons making such returns they shall recover their costs. Provided, if any damages shall be recovered, by virtue of this chapter, against any person making such return to the writ as aforesaid, he shall not be liable in any other ac- tion, for making such return. Skct. 1. 1 Ire. 42; 2 Jones, 124. Sect. 3. Wlien mnnJamus mnti issue, mid practice, Bus. 257, 1 Ire. 129, 2 lb. 430, 2 Mur. 1 *■ • receive for his compensation the fees allowed for such services ; and such portion as shall be paid by the county, may be re- covered back by the county, by suit on his official bond. 12. Every county court, without delay, and at the expense County conrt of the county, shall cause to be made and consolidated in one matiege^rai book, a general index of all the deeds and other documents index of logis- registered in the office of register ; and after the same shall be done, the register shall keep up such index without any addi- tional compensation. CHAPTEE 97, RELIGIOUS SOCIETIES. Section 1. Donations to religions societies, to vest in them or their trustees. 2. Houses of worship on vacant land, to belong to the society, &c. 8. Societies may appoint trustees to hold their property. Yearly value of lands, a church or society may hold. 4. Trustees may be removed, &c. To be accountable. 5. Penalty for stopping way to places of worship, springs, &c. Section 6. Stud horses, curiosities, &c., not to be exhibited in half a mile of congrega- tion. Exception as to towns, &o. 7. Sale of liquor and goods, within a mile, forbidden. Exception. Pen- alty. 8. Penalty for intoxication or disorder during worship. 9. Penalties under this chapter to be for the poor. 1. All glebes, lands, and tenements, heretofore purchased, Donations to 1 • 1 /■ J.I if i- 1 • ■ i_ religious soci- given, or devised tor the support ot any particular mmistry, or eties, to vest i» mode of worship; and all churches, and other houses built for them or their the purpose of public worship ; and all lands and donations of c. 89, s. i, 6. any kind of property or estate that have been or may be given, granted, or devised to any church or religious denomination, religious society or congregation within the State, for their re- spective use, shall be and remain forever to the use and occu- pancy of that church or denomination, society, or congregation, for which the said glebes, lands, tenements, property, and estate were so purchased, given, granted, or devised, or for which the said churches, chapels, or other houses of public worship were built; and the estate therein shall be deemed and held to be absolutely vested, as between the parties thereto, in the trus- 500- RELIGIOUS SOCIETIES. [ChAP. 97. tees respectively of the said churches, denominations, societies, and congregations, for their several use, according to the in- tent expressed in the conveyance, gift, grant, or will : and in case there shall be no trustees, then in the said churches, denominations, societies, and congregations, respectively, ac- cording to such intent- Houses of wor- 2. All houses and edifices, erected for public religious wor- kDd, to bebng ^*^iP °" vacant lands, or on lands of the State not for other to society purposes intended or appropriated, together with two acres -R.'s°c'.'9V. adjoining the same, shall hereafter be held and kept sacred for 2- divine worship, to and for the use of the society by which the same was originally established, ^temayap-'" • ^' '^^^ conference, synod, convention, or other ecclesias- point trustees tical body, representing any church or religious denomination p°rop°'rty''^'^ within the State, as also the religious societies and congrega- tions within the State, may from time to time and at any time, appoint in such manner as such body, society, or con- gregation may deem proper, a suitable number of persons as trustees for such church, denomination, religious society, or congregation, who and their successors shall have power to receive donations, and to purchase, take, and hold property, real and personal, in trust for such church or denomination. Yearly value religious society, or congregation. Provided, however, that, church or soci- besides such lands and lots as may be specially set apart and ety may hold, appropriated to divine worship, no church or denomination by s'-isM^c.^V; ^"'^"^^ °^ ^^'^^ chapter, shall have to their own use lands of a ms, c. 76. ' greater yearly value than six thousand dollars ; and no single congregation or society, lands of a greater yearly value than four hundred dollars; and said- lands shall be subject to taxa- tion. be removrd7 '^' '^^^ ^°'^J appointing may remove such trustees or any &c. ' of them, and fill all vacancies caused by death or otherwise ; and the said trustees and their successors'may sue and be sued in all proper actions, for or on account of the donations and property so held or claimed by them, and for and on account To be account- of any matter relating thereto. And they shall be account- ntlfs.- "■ ^^^^ ^? ^^^ ^'^^'^ churches, denominations, societies, and con- 1844, c' 47. gregations for the use and management of said property, and shall surrender it to any person authorized to demand it. s^toppi'^cr way ^" ^^ ^"y person shall maliciously stop up or obstruct the to places of way leading to any place of public worship, or to any spring rpriugs''&c- °^ ^^'''" commonly used by the congregation, he shall, for E. s. c.'sg, s. 7. every such otlence, forfeit and pay twenty dollars. Stud-horses, 6. If any person shall bring within half a mile of any place isitieTrfottobe^^^'"*^ the people are assembled for Divine worship, and stop exhibited in for exhibition, any stud-horse or jackass ; or shall bring, within congregation, that distance, any__natural or artificial curiosities, and there ex- half a mile of Exception as to hibit them, he shall forfeit and pay to any one who will war- K.Xc.M.'Ts. '■a'l*.^'^'^'"'-^"''' tl'e sum of twenty dollars. Provided, that nothing herein contained shall be construed to prohibit such exhibitions at any time, if made within the limits of any Chap. 98.] 501 incorporated town; or without such limits, if made before the hour of ten o'clock in the forenoon, or after three o'clock in the afternoon. 7. No person, licensed keepers of taverns and retailers ex- Saieofiiqnor cepted, (and they only when they shall sell at their taverns or f"tf°no'7or-''" shops,) during the progress of religious exercises, at any place bidden. w^ere Divine service may be then celebrated, shall sell within penaky!'— R. one mile of such place, any spirituous liquor, or any liquor of S. c. 99, s. 9, which spirituous liquor shall be a chief ingredient. Nor ' shall any person, the keepers of licensed stores only excepted, during such time and within that distance of such place, be engaged in the occupation of selling or- offering to sell any article of traffic, prepared food and provender only excepted. And if any person shall offend against this or the preceding section, he shall forfeit and pay, to any one who will warrant therefor, twenty dollars. 8. If any person shall be intoxicated, or shall quarrel, fight, P^^lty for in- or be guilty of any other disorderly behavior, at a church or disorder during other place appointed for Divine worship, during the time the g^^^'gl''"?; people shall be there assembled for such worship, he shall, for each offence, forfeit and pay twenty dollars. 9. The penalties incurred for offences created by this chap- Penalties nnder ter shall be for the use of the poor of the county, if not other- the poo^r^— R.""^ wise provided : and, on information thereof before any justice S- c. 99, s. 12, of the peace of the county wherein they may be committed, he shall issue a warrant against the offender for the penalty incurred ; and if there shall be an appeal from the judgment thereon, the case shall be prosecuted by the proper officer of the State. Sect. 3. 7 Ire. 44. Deed on unlawful trust, 1 Dev. 189. Bequests, good when, 6 Ire. Eq. 3S0, 4 lb. 19. CHAPTER 98. REPLEVIN. Section 1. Action of replevin for slaves and other chattels, under certain rules. (1.) Plaintiff to make affidavit. (2.) Clei-lt shall describe property and its value in the writ, and take bond of plaintiff. 2. Duty of sheriff executing writ. Shall deliver property to plaintiff, unless defendant give bond. Section 3. Wliat judgment if plaintiff recovers, the property having remained with him. What judgment if defendant recovers. 4. What judgment where plaintiff recov- ers, the property having remained with defendant. What judgment, if plaintiff fails. 1. Writs of replevin for slaves and other personal chattels Action of re- may be maintained against persons in possession thereof, in Slaves and oth- 502 REPLEVIN. [Chap. 98. der'cena&""" ^" 't^^''^ "' "^''^^^^ "^^'^"^ ^^ detinue or trover will lie, except rules. against persons holding the same in custody of the law, under the following rules and regulations : — m^fUvit , (^-^ '^'^^ Plaintitt; or his agent shaU make oath before the &c. clerk at the issuing of the writ, that within three years next preceding that time, he hath been in the lawful possession of the property detained, that he has been deprived of the pos- session thereof without his permission or consent, or unjustly and by fraud, and shall state the value and description of each slave and article of other property, as nearly as he can. describe prop • ^'^'^- '^^^ '^^'^^ ^'^^" describe in the writ each slave and ar- ertyandftsTai-*^'^^*^ °f property demanded, and shall annex to each slave and and"takeb7nd' ^^^^^^^ ^° described double the sworn value thereof, and shall of plaintiff.— ^^^^ of the plaintiff' a bond with good security, in double the E.^S.^c. 101, s. alleged value of the property demanded, payable to the de- fendant and conditioned to perform the final judgment on the writ. ?."e^u?ingtrif , 2. The Sheriff- or other officer, to whom the writ may be Shall deliver, delivered, shall forthwith take into his custody the property ^Eitfl unless demanded, and deliver it to the plaintiff" or his agent. Pro- defendaLt give vided aliuays, that if the defendant will execute and deliver to c.''iOM.^4.^' *^*^ sheriff" a bond with good security, in double the amount of the sworn value of the property demanded in the writ, paya- ble to the plaintiff", and conditioned to perform the final judc. ment which shall be rendered in the case, the said property shall be allowed to remain with the defendant, and the sheriff" or other officer shall return the matter and bond, along with the writ, to the court whence the process was issued. iY^a!ii"t?if?e!°' J ^ ^^"^ property shall have been delivered to the plaintiff", covers, the and on the trial of the action he shall recover, he shall have fp^remaiued" J"'^/r"ent for his costs and the damages assessed for the taking wfth him. and detention ; but if he shall fail to recover, or be nonsuited, Sifdf: or verdict be rendered for the defendant, the court shall forth- fenda'nt recov- With direct an inquiry of the value of the property, and the wiVf-' "■ damages sustained by the defendant by the detention of his 1838, c. 35. property; and judgment shall be rendered against the plain- tiff and his sureties for the penalty of his bond, which may be discharged on surrender of the property and payment of the damages and costs. S' whfre ^' ^^^* ^^ ^^'^ property shall have remained with the defend- piaintiff recov- a"t) by reason of his having given bond with security, and iTavirT'''^ plaintiff on the trial shall recover, the jury shall assess the maTned w'ith ^^lue of the property, as likewise the damage for its deten- defendant. tion, or for its caption and detention ; and the plaintiff" shall recover against the defendant and his sureties the penalty of his bond and costs of suit, which may be discharged by sur- render of the property and payment of the damages and costs. S*if nf."i„ ^"'^ '^' !" *'"' ""^'^ ^'^'^ plaintiff shall fail, the defendant shall tiff fails. -K. recover his costs against the plaintiff" and the sureties of his S. c. 101, s. 4. bond. Sect. 1. Pleading and verdict, 6 Ire. 38. Suil by tenant of life-estate, 5 Ire. 19i. Chap. 99.] 503 CHAPTER 99, KE VENUE. Sectiou 1. Property and persons taxed. Property exempt. 2. Tax on real estate. 3. Tax on i-eal estate, a lien. i. Tax on poll. On slaves, paid by owner. In what case hirer shall pay. Whom court may exempt from poll- tax. 5. On turnpike toll-gates. On gates across highways. 6. On stud-horses and jackasses. To be paid in advance by non-residents. T. On real estate of §300 value, and per- sonal of S200, descending, devised, bequeathed, or distributable, to, or among collateral kindred. (1.) First class, one per cent. (2.) Second class, two per cent. (3.) Third class, three per cent. Cer- tain persons exempt from the tax. 8. Tax on personalty, and surplus of land sales retained by executor, &c., and paid to clerk. 9. Eemedy against, for failing to pay it over. 10. Value of personal estate, how ascer- tained. 11. Executor, &c., to report to clerk an ac- count of the real estate. Its value, how ascertained. 12. Heir or devisee failing to pay tax in six months after report, to be sued. 13. Clerk to keep a record of such taxes; to return a list to comptroller, and pay them to sheriff. 14. Commissioners appointed by governor to enforce collection of such tax. 15. Estates subject to tax not to bo set- tled without administration, under penalty of $500. 16. When no administration in three months, clerk to administer. 17. Duty of commissioners. Commission- ers to sue defaulting clerks for penal- ties, &c. 18. Conveyances in fraud of such tax, void. 19. Tax on all interest exceeding six dol- lars. Section 20. On dividends or profits exceeding six dollars. 21. Taxable sum of interest and diridends, how ascertained. 22. On money employed in trading in slaves, and other kinds of trade. 23. Sulkies, buggies, and other pleasure vehicles of S50 value, and up- wards. (2.) Plate, jewelry, and watches. (3.) Musical instruments. (4.) Certain arms, if at any time used during the year. (5.) Retailers. (6.) Tavern-keepers. (7.) Billiard tables. (8.) Bowling-alleys. (9.) Livery-stables. (10.) Playing cards. Seller to state the number. (11.) Peddlers of patent medicines, ra- Eor-etraps, &c. (12.) Mortgages, trust-deeds, and mar- riage contracts. Register to receive and account for tax. To list the number of deeds, &c., under penalty ofSlOO. (13.) Tax on marriage licenses. Clerk to receive and list. (14.) Tax on ret,ailers, billiards, and bowling-alleys to be paid to sheriff, in advance. 24. Merchants, merchant-tailors, and jew- ellers. Dealers in liquors, wines, or cordials. Drugs, medicines, &c., nos- trums of non-residents ; commission merchants; auctioneers. Capital and commissions of merchants, how esti- mated for tax. Distillers of turpen- tine. 25. Bonds, &c., of merchants, &c., not deemed stock. 26. Merchants, &c., to apply for license on first of April. 27. Such as open stores afterwards, how to obtain license. 28. Merchant selling without, to pay addi- tional tax of §100 to sheriff. 29. On peddlers of carriages, Sec, not made in the State, $30 in each 504 [CiLvp. 99. Section county. On horses brought into the State for sale. 30. On persons keeping a fixed establish- ment for sale of such articles; un- less sold where made. 31. Selling, or ofl'eriiig to sell by sample. 32. License under three precedmg sec- tions obtained on paying the tax. Two not to peddle under one li- cense. 33. Double tax for violating the four pre- ceding sections. 34. On peddlers of other articles not ob- taining license, SlOO a year, for each county. 35. On peddlers obtaining license, $30 for each countj'. 36. Proviso {1.) As to south side of Albe- marle sound, &o. (2.) As to peddling live-stock, vege- tables, iSrc. (3.) As to books, &o. (4.) Two not to peddle under one M- cense. (5.) Shall pay duties on auction sales. (6.) Deemed peddlers though they pro- cure houses temporarily. 37. On brokers, $100 a year. !8. And S200, if not paid down. 39. On all receivers of salaries and fees, of S500 yearly value. 40. On license to attorneys. How dis- posed of. 41. On insurance companies. Agencies of banks incorporated out of the State. Double tax on failure to pay. 42. On circus riders, menageries, &c., ex- hibited for reward, SBC for each county. 43. On stage-players, jugglers, rope danc- ers, exhibiters for reward of curiosi- ties. 44. On singers, serenaders, and players on musical instruments for reward. 45. Tax imposed in sections 42, 43, 44, to be paid in advance, or doubled. SheritF to specify count}', &o., for which tax is paid. 46. Peddlers, and persons allowed to ex- hibit, to show tax receipt to justices and constables. 47. Penalty for refusing, and proceedings to enforce it. 48. Members of family, and free negro tenants, by wliom listed. 49. What subjects listed for tax. 60. Tax lists to refer to first of April. Persons, coming of age after that d ay, may pay tax and vote. Skction 51. Lists of dece.ised and disabled persons, and others, by whom given in. 52. Lands divided after valuation, how valued and listed. 63. List-takers for each district appointed by court held after first of April. Their names and districts advertised during term. 54. On failure to appoint, three justices may before July. 55. List-takers to be notified in ten days; and advertise for ten days, the places and times of t.iking lists. 56. Sections 69 and 66 to be copied into notice to list-taker. His duty. 57. If list-taker die, justices to appoint another. 58. Inhabitants to attend and give their lists. List-takers to read over the subjects of taxation, and administer an oath. 59. Penalty for failing to administer oath. Proviso for females, infirm and ab- sent persons. 60. County in which taxables shall b« listed. 61. Persona failing to list, to pay double tax. 62. Sherifi' discovering Land not assessed, to report it to court. Proceedings thereon. 63. Persons hsting taxables refusing to take oath, guilty of a misdemeanor. To be committed and indicted. 64. Sheriff to inform prosecuting ofilcer of frauds on the revenue. Duty of officer. 66. Forms of tax lists prepared by treasu- rer, and sent to clerks. 66. Mode of entering taxables on lists. 67. List-takers or assessors refusing to act, guilty of misdemeanor. 68. Lists returned to be recorded by clerk and set up in court liouse. 69. Abstracts of lists of all taxes sent to comptroller before first of April. What set forth in abstracts. Print- ed fonns furnished by comptroller. 70. Penalty on clerk for failing to send abstracts. 71. County court up to March, may re- ceive tax lists. 72. Board of valuation appointed every five years, to value real estate. For Wilmington every two years. 73. Mode of assessing value, fisheries, mines, &c., considered in valuation. Lands in several districts, where valued. Affidavit of board. Chap. 99.] 505 Section 74. Owner to furnish a list of his real es- tate for valuation. 75. When number of acres is unknown, board shall order survey at owner's cost. 76. Valuation too high, how reduced. How advanced, when incre.ised by mines, &c. 77. Overcharge ofpoll,&c., how corrected 78. Pay of board. 79. Allowance to clerk. 80. Double tax may be released by coun- ty court. In what cases. 81. Tax lists delivered by clerk to sheriff by April. Form and contents of lists. Penalty for omission. 82. Tax collectors to be sworn. 83. If sheriff die, his sureties may collect taxes. 84. Sheriff allowed one year after first of October to collect. 85. Shall collect double tax on unlisted property. If not assessed, what to be deemed its value. 86. Sheriff on receiving tax lists to adver- tise them, &o. 87. May distrain for tax. 88. Tax of persons about to remove, to be collected forthwith. 89. Of solvent persons, having no property in the county, collected by execution. 90. Sales of personalty for taxes, how made. 91. Sales of land, how conducted. (1.) Sheriff to return to court a list of lands, &c. To be read aloud, re- corded, and put up in court house. (2.) Land-owners notified, how. De- scription of land to be given. (3.) To be sold iu two terms after re- turned — where. (4.) Whole tract to be put up. Who deemed the buyer. (5.) Sale returned at the second term, &o. Proceedings on return. 92. Lands of infants, Sec, not to be sold. Wlien held jointly with such per- sons, how to be sold. Proceedings to get title iu such case. 93. Lands may be redeemed in one year. Mode of proceeding. 94. Purchaser to select and lay off quan- tity bought iu a compact body, &c. 95. Laudtobesurveyed inayearaftertime of redeeming. By whom surveyed. 96. Deed to be made by sheriff. 97. Proceedings, when another conveys than the sheriff who sold. 43 Section 98. Purchaser to pay certain back ta.x. 99. Penalty on sheriffs and clerks omitting duties prescribed in sections 90 and 91. 100. Penalty on county surveyor failing to survey. 101. State deemed buyer, if none bid less than the whole tract. Sheriff to re- port to county court. Proceedings thereon. 102. Copies of report to be certified by clerk for comptroller and secretary. Proceedings thereupon. 103. Sheriff failing to report sale, or de- posit copy with secretary, to be charged with $2,000. 104. Lands bid off by State may be re- deemed ; on what terms. 105. Decined vacant, and subject to entry. 106. On sheriff's death, &c., his sureties may report sales, &c. 107. Sheriff and all tax-receivers to settle yearly with comptroller, between June and October. Comptroller to report to treasurer amount due from each. 103. Sheriff to render to comptroller tho amount of each kind of tax. A copy certified by comptroller, to be de- posited with the clerk. What sher- ifts to be charged with. 109. With what credited. Tax on land bought by State, &c. Insolvents al- lowed by court. 110. List of money received by sheriff from clerk, and on iinlisted taxables, to be returned to the county court next before October. 111. What the Ust to set forth. To be read, recorded, set up, and laid before grand-jury. 112. In certain cases list filed with clerk in vacation. 110. Sheriff to deliver a copy to comp- troller, or be charged with §1,000. 114. Penalty on clerk for violating sections 107, 108, 109. 115. Register, or clerk failing to settle taxes with sheriff, to be sued. 116. Insolvent tnxaWes, in what case al- lowed by court. 117. Penalty on sheriff returning false fists of insolvents. On clerk failing to re- cord and set up lists. 118. Oath of sheriff', on settling with comp- troller. 119. Comptroller suspecting fniuds, &c., about the revenue, to inform, &c. 506 [Chap. 99. Section 120. Commissions allowed sheriff ou settle- ment. 121. Further compensation. 122. Sheriff failing to settle, comptroller to report his account. How to be stated. Treasurer to take judgment against him and sureties. 123. Clerk to furnish comptroller with cer- tified copies of sheriffs' bonds, un- der penalty of 51,000. 124. Register to furnish comptroller with a certified copy of clerk's bond, under penalty of $1,000. 126. In suits against sheriffs or clerks, such copies to be evidence. 126. If register fail to transmit a copy, how comptroller to proceed. Section 127. Penalties on clerks and sheriffs for defaults not specially provided for. Penalties recovered by treasurer on motion. 128. Certificate of treasurer or comptroller, and copies of papers in office, to be evidence. 129. Debts due the State recovered on mo- tion. 130. Sheriffs' receipts to state separately the sums of State and county tax. 131. Tax on profits of Deep River Naviga- tion Company, to be a sinking fund. 132. Tax on coal shipped, to be a part of such fund. Property and 1. The following taxes shall be annually collected and paid persons taxed. ^^ ^j^g citizens and other persons, and by owners of property situate in the State, besides the taxes which by any other law may be imposed on them ; unless the property in this chapter described shall be expressly exempt from taxation by this or Property ex- some other law. The property and estate hereby exempted empt from tax- from taxation, are all such and their profits as may belong to " the State, or may belong to, or be set apart for the university and colleges, institutes, academies, and schools for the educa- tion of youth, or the support of the poor or afflicted, or spe- cially set apart for and appropriated to divine worship. Tax on real es- 2. There shall be annually levied upon all real property, with the improvement thereon, including entries of land, twelve cents on every hundred dollars value thereof Tax on real es- 3. If any person shall sell his real property, and shall have S.'c.'io2,"sr4^' "° estate within reach of the sheriff to satisfy the taxes im- posed thereon, at the time when they become demandable, the land shall be bound for the same, as well as the property of the then owner. Tax on poll. 4. Upon every free male, between the ages of twenty-one byowJer.^'^''^ and forty-five years, a tax of forty cents; and for every slave of either sex, between the ages of twelve and fifty years, the When hirer like sum shall be paid by the owner, and not the hirer; unless shaUpay. "vv^hen the owner may be a non-resident and his slave be hired, Whom CO. may and then the hirer shall list the slave and pay the tax. Pro- ^ITtal—R ^ided, hoivever, that the county court may exempt from a poll- §?c. 102,3.6.— tax such poor and infirm persons, and disabled and insane State Const'n, giaves, as thcv may declare and record to be fit objects for ex- Ai't.4,s.3,cl.2. .'»•'•' emption. On turnpike 5. Upon cach toU-gate of a turnpike-road, a tax of ten dol- On"|ue?kcross lars shall be paid by every owner; and a tax of three dollars highways.— R. per gate by every person who may be permitted to erect gates 1848,0. 80; X860, c. 121. * The taxes laid in sections two and four include the taxes imposed in section 36, ch. 6, for the support of the liisaue Asylum — vide p. 91, and Act of 1864, c. 38. ation. — R. S. 102, s. 2. tate.— R. S, 102, s. 1. Chap. 99.] revenue. 507 across a highway ; and a tax, equal to five times the largest toll by the owner demanded, upon every public ferry; and a tax of ten dollars on every toll-bridge. 6. Upon every stud-horse or jackass, let to mares for a price, On stud-horses a tax of five dollars, unless the value of the highest season for "» 23. Upon each sulky, gig, buggy, barouche, carriage, and other pleasure vehicles, in use by the owner, or by his consent, of the value of fifty dollars and under a hundred dollars, fifty cents ; of the value of one hundred dollars and under two hundred dollars, one dollar ; of the value of two hundred dol- lars and under three hundred dollars, two dollars; of the value of three hundred dollars and under four hundred dollars, three dollars ; of the value of four hundred dollars and upwards, four dollars. ^ (2.) Upon all gold and silver plate and ornamental jewelry in use, except ornamental jewelry worn by females, of as great value as fifty dollars, one per centum on the value. On each gold watch in use, one dollar ; on each silver watch in use, twenty-five cents. " (3.) Upon each harp in use, two dollars; on each piano-forte in use, one dollar. V (4.) Upon every pistol, except such as are used exclusively for mustering, and on every bowie knife, one dollar. On dirks and sword canes, fifty cents each. Provided, however, that of said arms only such shall be taxable as at some time within the year have been used, worn, or carried about the person of the owner, or of some other by his consent. (5.) On all retailers of wines, cordials, or spirituous liquors, twenty dollars. (6.) On every keeper of a common inn, ordinary, or tavern, ten dollars. (7.) On each billiard table one hundred dollars, except when there are more than one kept by the same individual in the same room ; in that case, a tax of one hundred dollars shall be paid on the first, and fifty dollars on each additional table. (8.) On each bowling-alley, commonly called nine pin or ten pin, or by whatever other name called, twenty-five dol- lars. (9.) On each livery-stable, a tax of ten dollars. (10.) On each pack of playing cards, twenty-five cents, to be paid by the seller; and every merchant, shopkeeper, re- tailer, inn or tavern-keeper, or public dealer in goods, wares, or merchandise, or other thing, shall list the number of packs he may have sold during the year. (11.) On all peddlers of patent soap, medicines for the killing of crows, chinches, and other vermin, for the curing of head- ache, toothache, or corns, and of all patent medicines, razors, and razor straps, a tax of five dollars in every county in which they may so peddle. (12.) On each n)ortgage deed, marriage contract, and deed in trust made to secure debts or liabilities, which shall be registered, one dollar, which the register shall pay. The regis- ter shall not be obliged to record any such deed, unless the tax thereon is paid to him ; and he shall indorse thereon the Chap. 99.] revenue. 511 payment of the tax, and shall render to the justice who takes To list the the tax list, the number of such deeds by him registered in the dee"is''&c '^ un- preceding year, under the penalty of one hundred dollars for rfer peimitv of the use of the State, to be collected by the county solicitor. faMra"""' "' (13.) On each marriage license, the sum of one dollar, which Tax on mar- shall be paid by the clerk; and no clerk shall issue such c"e?k''to'"e-''' license unless the tax thereon shall be paid to him; and he <^eive and list, shall render to the justice who takes the tax list the number of ~^^^''' such licences by him granted in the preceding year, under the penalty of two hundred dollars for the use of the State, to be collected by the county solicitor. (14.) The taxes herein imposed on retailers, tavern-keepers, Tax on retail- peddlers, billiard tables, and bowling-alleys, shall be annually "Id boSgl paid in advance to the sheriff of the county, who shall grant a alleys to be _ license for the same;" the applicant for license to retail spirit- [nlfdvance!^ uous liquors, having first obtained an order therefor, as pro- 1854. vided in the chapter entitled " Ordinaries and Inns." And any person offending against this provision, shall pay a double tax, to be collected by distress. 24. On every merchant, merchant-tailor, or jeweller, who Jlercbants, shall sell goods, wares, and merchandise, a tax of one fourth "'^'■'■'lant-taii- £■ i 1- -,1 , , ors, and jewel- 01 one per cent, upon his capital : on every merchant, apothe- Lis. cary, druggist, or other dealer, consignee, or agent, selling at Dealers in wholesale or retail, spirituous liquors, wines, or cordials, five Jj^^^^-.^"^'' per cent, upon the capital so employed, to be paid by the sel- ler: on every merchant or apothecary selling drugs, medicines. Drags, medi- or nostrums, as agent of the owner, if a non-resident, twenty- trams of no"-*" five per cent, of the value, to be paid by the seller : on every residents. commission merchant, one per cent, on the commission re- Comn amission ceived by him : on every auctioneer, one-fourth of one per cent. ™«''<;''-'"";! upon the value of all goods sold by him. Provided, that no '^"'^ '°"^"^"- tax shall be levied upon sales made under an execution, or order issuing from any court, or from a justice of the peace, nor by any executor, administrator, or trustee. The capital Capital and aforesaid sliall be the aggregate sum of the purchases of goods, mere"hants"' °'" wares, and merchandise, made within the year preceding the iiow estimated first day of April. The commissions received by each com- ^°'^ ^^' mission merchant, shall be computed by the same time, and also the amount of such articles, not of the manufacture of the State, as are sent here to be sold by the consignees or agents of the owner. All distillers of spirits of turpentine shall pay Distillers of an annual tax of two dollars and fifty cents, on every turpentine.— distillery of a capacity of ten barrels and under; on every ^^^*' distillery of a capacity between ten and fifteen barrels, an annual tax of three dollars and fifty cents ; on every distil- lery of a capacity between fifteen and twenty barrels, an annual tax of five dollars ; and on every one of a larger capac- ity than twenty barrels, an annual tax of ten dollars. 25. The bonds and notes payable to any merchant, mcr- Bond=, &c., of chant-tailor, or jeweller, shall not be deemed part of his capital "ITt^iecmc'd*'''' stock, but the interest on the same shall be taxed as other stock.— ibso, money at interest. '■ ^'^^' '• ^- 512 REVENDE. [Chap. 99. Merchants,&o., 26. Every such merchant, merchant-tailor, or jeweller, en- li'ce'lll^e'oil^first g^ged in business in any county on the first day of April, shall ofAprii.— K. S. apply to the sheritl'of such county, and on paying the tax on iS44^c.^i8t."2. his capital estimated as aforesaid, (the account of which he shall swear to in an affidavit subscribed and made before the sheriff,) shall take a receipt therefor, and be allowed to carry on his business. Such as open £7. Every person opening such store, after the first day of ward?,'how to April, shall pay the tax, or shall execute and deposit with the obtain license, sheriff a bond with good security payable to the State of North — R. S. c. 102, „ ,. , ,1 , j^i i. r 11 1 • u E. 14. Carolina, to pay the tax on the amount ot all nis purchases, including his present stock, to the first day of April next suc- ceeding ; and thereupon shall take from the sheriff a receipt for such tax or bond, and be allowed to carry on his busi- ness. Merchant sell- 28. Evcrv wholesale, commission, or retail merchant, mer- ing wUhout, to ■ "^ ■ 11 1 , 11 11 1 pay additional chant-tailor, or jeweller, who shall sell any goods, wares, or '?''?» ''Ts" merchandise, without first taking the receipt of the sheriff', as 0. i'J2, s. 14. in any of the foregoing sections ot this chapter is provided, shall pay an additional tax of one hundred clollars, which the sheriff' shall collect forthwith by distress, with the other tax imposed on such merchant. On peddlers of 29. There shall be paid in advance to the sheriff of each notofmanu'fao- couuty a tax of thirty dollars, by every person who shall offer tnre of 'he for gale, or peddle in that county, any riding vehicle, not of the eachcountj"— manufacture of this State : and on all horses and mules 1846, c.^ 74. brought into the State for sale, whether by citizens of the bronghtlnto State or others, there shall be paid to the sheriff a tax of ten State for sale, dollars for each county in which any sale of such horses or "~ ■ mules may be made. Provided, that, when a person shall offer for sale any vehicle purchased for his own use, he shall not be subject to the above tax. On persons 30. A tax of One hundred dollars shall be paid to the sheriff es^TbTifiiment of the county by every person who shall keep therein an es- for sale of such tablishment for the sale of such vehicles, any part of the wood- c. 74. 'work of which is not of the manufacture of this State; and a tax of fifty dollars, when the vehicles are of the manufacture Unless sold of this State. Provided, nevertheless, that no person who is a where made.— manufacturer of such vehicles in this State, shall be subject to the tax for the sale of vehicles manufactured by him, when said sales are made in his county. Seiiinfr, or of- 3i. There shall be paid in advance to the sheriff of each B^mple?^*^ ''county a tax of fifty dollars, by every person exhibiting, sell- ing, or offering to sell by sample, any goods, wares, or mer- chandise not of the manufacture of this State. License nnder 32. On payment of the tax mentioned in the three prcced- inK*s^ectrons ob- ing sections, the person paying the same shall take the sheriff's tained on pay- receipt specifying the county and purpose for which it is paid, '"^ '^' and thereupon he may exercise such employment for one year, and sell at any places in the county for which the tax is paid. peddie"uiider Provided, always, That such receipt shall not be construed to Chap. 99.] revenue. 513" permit two or more persons to peddle under the same license, ine license — under the pretence of being partners in trade. ''■ ^' "^^ ^'^^' 'S'S. If any person shall oflend against any of the four pre- Double tax for ceding sections, he shall pay to the sheriff double the tax due ™|?g'i'Jfg'"™^ from him, which the sheriif shall forthwith collect by distress, tions. 34. Every peddler, except as hereinafter provided, of any On peddlers of other article, part of machinery, or thing whatsoever, than °orobt'u?ni'n^ aforesaid, the whole or principal part whereof, in value, shall license, smoa be not of the growth or manufacture of this State, who shall "oounty — r."s. exercise such employment, without first having obtained an c- 102, s. lo, 13. order allowing him to peddle, from the court of pleas and quarter-sessions of the county in which he proposes to peddle, and paid the tax in the following section imposed, shall pay a tax of one hundred dollars a year for each county in which he may so peddle, which the sheriff shall forthwith collect by dis- tress. 35. Every person who shall prove to the court that he is of On pedjiers good moral character, and that he is a native or naturalized cense"'s3o' "for citizen of the United States, shall be entitled to such order e^ch county.— from the county court; and on paying to the sheriff of the io._/s46°c.^" county for which the order was granted, a tax of thirty dollars, 73 ; i848,'c.79. and taking a receipt therefor, specifying the purpose and county, may peddle in that county for one year, cither on land or water, articles, parts of machinery, or other thing of the kind mentioned in the preceding section. 36. Provided, (1.) That when such licensed peddler shall Proviso as to peddle altogether on the waters on the south side of Albe- Aibemtrie"^ marie sound and the tributaries entering that side of the sound, '&c sound, (Roanoke and Cashie excepted,) he shall pay a tax of five dollars only. (2.) That any person may freely peddle live-stock, (except As to peddling horses and mules,) vegetables, fruits, oysters, or fresh fish, the et'abfe'r&J'^^ growth or produce of the United States. (3.) That any person, a citizen, and for twelve months a As to books, resident of the State, may freely peddle books, charts, maps, ^'^• phi'osophical apparatus, and music prints. (4.) That two persons shall not peddle under one license, T^vo not to ped- ) i f u • i die under one under any pretence ot bemg partners. license. (5.) That no licensed peddler shall sell any goods or other Shall pay thing at auction, without incurring the duties on auction sales. f|"n"saies """" (6.) That any person who shall procure houses for carrying Deemed ped- on a temporary sale of goods, at one or more public places in tuey procure the State, shall be deemed a peddler. houses, &c. 37. Upon all persons, commonly known as brokers, who for On brokers, the purpose of gain, shall be engaged in buying or selling bills it^°lVio2.— of exchange, or the bills of any bank incorporated in this is48, c. 78. State, shall be levied a tax of one hundred dollars. 38. The tax shall be paid in advance, to the sheriff of the An.iS2io, if county in which the calling is used, whose receipt therefor lH'nJ's' c.°io2i shall allow the person to act as broker aforesaid for one year; ^- i5.— 164S, c. and if any without such authority shall act as such, he shall '^" 514 REVENUE. [Chap. 99. pay a tax of two Imndrcd dollars, which the sheriff shall forth- with collect by distress. On all receiv- 89. Oil surgeon dentists, practising physicians, practising m.d'fees.'of" lawyers, and all other persons, (ministers of the gospel ex- S500yearr\r ccpted,) whose practice, salaries, or fees, or all of them to- c.^'i^iT.V ' gether, shall yield an annual gross income of five hundred dollars, there shall be levied a tax of three dollars for the first five hundred, and two dollars for every additional five hundred dollars, until such income shall exceed fifteen hundred dollars, and five dollars for every additional five hundred above that amount. On license to ^^0. Upon each license to attorneys to practise law in the county or superior courts, ten dollars, to be paid at the time of obtaining license, to the clerk of the supreme court; so much thereof as may be paid to the clerk of the court at Ealeigh, of°-^R.' ^'.''c! shall be paid by him into the public treasury ; and so much as 28,^8.5.-1846, shall be received by the clerk at Morganton, shall be expended isso'cissi '^y '^'^ under the direction of the court, in the purchase of books for the library at that place. And the clerk shall be entitled to six per cent, for receiving and accounting for said money. On insurance 41. Upon all insurance companies incorporated in this companies. State, an annual tax of one hundred dollars ; and upon all insurance companies incorporated out of the State, an annual tax of one hundred dollars for the first county, and fifty dol- lars for every other county in which an agency shall be estab- baS'incor- I'shed. On all agencies of banks incorporated out of the poratedoutof State, a tax of five hundred dollars. The tax shall be paid in State. advance, to the sheriff of the county where the company may transact its business, and where the agency may be estab- muKtTpav" lished : and, if the tax be not paid in advance, the same shall — 1850, c. 121, be two hundred dollars, which the sheriff shall forthwith col- s. 7 ; 1854. led. On each express company, a tax of two hundred dollars. On circuses, 42. Upon every company of circus riders or equestrian per- &o., exhibited lormers, and upon every company or person, who for reward, for reward, S50 shall exhibit any collection of animals commonly known as a ^or eaci coun- menagg^ig^ ^^ annual tax, for each county wherein they may exhibit, of fifty dollars. On stage-play- 43. Upon every company of stage or theatrical players, rope' dancers', slight of hand performers, rope-dancers, tumblers, wirc-dan- exhibiters for cers, or company exhibiting for reward artificial curiosities of osities. — 1860 ^'^Y l<''id, (models of useful inventions excepted,) and on each c. 121, s. 8. one of such persons, when they perform or exhibit alone, an annual tax for each county wherein they may exhibit, of thirty dollars ; and upon every person or company exhibiting any other natural curiosity, not already mentioned, an annual tax for each county wherein it may be exhibited, of fifteen dollars. On sinfjors, scr- 44. Upon evpiy person, or company of singers, dancers, piayers'nn'mu- Ethiopian screnaders, or performers on musical instruments, sicai instru- who, for the public amusement, shall sing, dance, serenade, or ments, for re. . ■ i • i ± r i i Jt ward. — 1850 P'^*y o" musicai instruments tor reward ; and upon every other c. 121, s. 8. ' Chap. 99.] revenue. 515 public exhibition for amusement, exiiibited for reward ; and upon every person wiio lectures for reward, an annual tax of live doUari?, unless the reward be wholly devoted to some lit- erary or charitable use in the State. 45. The tax imposed in the three next preceding sections, Tux imposed shall be paid in advance, to tiie sheriff of the county in which 43, ^Cto'be *^' the exhibition is to be made, who shall thereupon give a re- pi^'id i" "J- ceipt for the same, specifying the county for which the tax is jouiji'uri'.' paid, and a list of the performances, animals, or articles to be sueriutospe- exhibited; and if such tax is not paid in advance, the sheriff ^2^_ f^'^/^J^lj shall forthwith collect a double tax. tax is paid.— 46. Every peddler, stage-player, slight of hand performer, peddiers^and^' rope-dancer, tumbler, wire-dancer, company of circus riders, |)er>cjiis allowed or equestrian performers, exhibiter of natural or artificial curi- s'ikw tax I'-e" osities, company of singers, serenaders, or musical performers, ceipttojustices dancers, and every other public exhibiter for reward, shall"" show his receipt for the tax, to any justice of the peace or con- stable who may demand a view thereof; and it shall be the especial duty of constables to demand such view. 47. If the justice or constable shall be denied a view of the Penalty for re- receipt, the oficnder shall forfeit and pay one hundred dollars, p"o"el'dhigs to one half for the State, and the other half for the constable or sni'orce i^t. — R. any other who will sue for the same ; and the justice, if the 19. ■ -' • ' denial be to him, shall forthwith issue his warrant for the re- covery thereof; and if to a constable, he shall arrest the party and carry him before some justice of the peace, who shall issue his warrant for the penalty, and determine the cause. 48. All free persons, living with, and constituting a part of Members of the family, and all colored persons living by consent on the negiVtmlants^ lands of another, shall be listed by the head of the family, or by^whom listed. owner of the land, as the case may be. 49. Every kind of property, person, employment, profession. What subjects privilege, or subject, on which a tax is imposed by this chap- p'^'y^ c.* 102 X ter, other than such whereon the tax imposed is demandable 22. at tlie time it is laid, shall be listed for taxation within the last twenty working days in July, in every year. 50. The real and personal estate, and other taxable sub- Tax lists shall jects, unless otherwise provided, required to be listed for tax- April." ation, shall be such as were the property or in the possession Persons, com- of the owner, or were subjects of taxation, on the first day of "|',^t°day,'^may April preceding, and the polls shall be such as were of the re- pay tax and quired age on that day. And any freeman arriving at age l^io^s. 25.' after that day, and before an election, may list himself before the sheriff or his deputy, and pay down to the sheriff' the poll- tax of the year. 51. Lists of the taxables of testators, intestates, minors, luna- J'^^''^^„,'J,^\iig tics, insane persons, absentees, and estates held in trust, shall abied persons be rendered by the executor, administrator, guardian, agent, "»'•<>"'?'''' ^j •' . ' 1 ' o ' whom given m. ti-ustce, or ccslui que trust, as the case may be. — r. s. 0. 102, 52. When tracts of land or town lots have been divided 5- '-•^j .. . , , 1-111 11 r !• Ilia: Lands, divided alter valuation by the board, the taker 01 tax lists snail amx after valuation, 516 BEVENUE." [Chap. 99. ll^tTd'^ll'lsss"' ^^^ ^Gtmn the separate value of each part, making the sum c'.' 36;' 1846, "' of ^11 the valucs equal to the valuation returned by the board; c. 75. and the justice may swear and examine witnesses to aid him in the inquiry. List-takers ap- 53. At the first court of pleas and quarter-sessions of each pointed by first i. i ^ j c^ j.\ n j. ^ r . t, , , ... ^"''" court after 1st county, held after the first day of April, the court shall annu- Aprii. ally appoint for each captain's district, a iustice of the peace Iheirnames, j. 1 i ,1 i- , r , ■ , . . . .' . &c., advertised *« take the list ot taxable property ; whose names, with their ^"''|"Ste™-— respective districts, shall, during the term, be advertised at the court house by the clerk. If no' npRoint- 54. If the court should fail to make such appointment, any Uc'es'maVap- ^^''^^'^ justices of thc peace of the county may meet at the 5ui"'— "si '^^^'^^ °f t'le county court, on or before the first day of July, ^uy. 1 4 ,c. g^j^j appoint the takers of tax lists for the county, and the clerk shall record the same, betofifiedin ^'^' ^°^^^^^ °^ ^'^ appointments of the takers of tax lists, as tc'n'd'ays^; and ^oon as they are made, shall be issued and delivered by the ten°'daT'?a'^^'^ '"'^'^'^ ^° ^^^ sherifl', who shall serve them within ten days on and tlmes'^oT*'^ e^ch justice, and he shall advertise, at three several places r''s"°'io2~ ■^^^^'^''^ ^^^ district, at least ten days before the time of listing, 23. '"' ''■ the places and times, where and when, he will attend for re- ceiving the list of taxables. Sects. 59 and 56. The notice to be issued as aforesaid to the justice, shall f'dinto'nXe ^cntain a copy of sections fifty-nine and sixty-six of this chap- to list-taker, ter ; and, at the same time, the clerk shall deliver to the sheriff, is'le'lc/^TsVs. *° ^^ handed to each justice, a fair copy of the returns, made 8, 9.' ■ ' ■ by the last preceding board of valuation, of the assessment of real estate in his district; which copy the justice shall return, with his return of taxables, to the clerk. If list taker die, 57. If any such justice should die, remove, or become inca- npp'ointan"'°P^!^^'^' ti^fore his duties are performed, another shall be ap- tiier.-R. s. c. pointed by any three justices of the county, to be notified by 102, s. 23. ^i^g sheriir, for that purpose; and such justice shall take the list. Inhabitants to 58. At the times and places appointed by the justice, the give°the^ Inhabitants of the district shall attend, and the justice shall Dst'takers to ^^^'^ °'''^^ ^° ^'*^^. °"® g'^''"S i'^ 'I's Ust, all the articles and read o^veTsnb- subjects of taxation; and thereupon he shall render to the jus- jects of taxa- ticc his list of taxables, and at the same time shall take the tion, and ?d- r n ■ .1 minister an following oaui : — °''ioTf'24'— ^°"' ^' ^'^ *^° solemnly swear, that you, either in your 1850, c.%21," s. °^^'" ""'ght) or thc right of any other person or persons wliom- 10, 11. soever, either as guardian, attorney, agent, or trustee, or in any other manner whatsoever, are not liable for more tuxes, under the laws of the State, than the amount which you have now listed ; and that the list by you now delivered, contains at least as large an amount of interest, dividends, profits, prac- tice, salaries, and fees, as you are bound to list for taxation ; and in all other respects contains a just and true account of all the property which by law you are bound to list for taxa- tion, to the best of your knowledge and belief: so help you, God. Chap. 99.] revenue. 517 59. No justice shall take the tax list of any one, but on ad- Ponnity for ministering the foregoing oath, on pain of paying one hundred min'Mei°oath. dollars to any one who will sue for it. Provided, however, that Proviso for females, aged, and infirm persons, and persons aijsent from the IJ^^^'^selT/p™- county during the days of listing taxables, may, on oath, before sons.— 1846, c. any other justice, render a list of his taxables; and the same "' being certified by such justice, shall be entered on the tax lists. 60. Real estate shall always be listed in the county wherein County in it is situate. Personal property, and other subjects of taxation, ghi'u Le^Msted.^ shall be listed in the county where the owner or lister resides; — E- S- c. 102, but if the owner reside out of the State, they shall be listed in the county where his agent, or the person liable for the tax may reside. Provided, however, that when real estate shall lie in one or more counties, a list of such estate, lying out of the county of the owner's residance, sworn before a justice of the county wherein the owner may reside, may be transmitted to the proper taker of the lists. Provided further, that such slaves, or other taxable; personal estate as are employed on the land of the owner, shall be listed where the land is listed. 61. If any person, bound to list taxables in his own right, Pe"o°3 failing r- I I n r. •! T I O ' CO llSt, tO pa/ or m rjght of another, shall fail to list the same, or any part double tax.— thereof, the sheriff" shall collect from him, and of his own ^3 ^- °- ^''^' ^• proper estate, double the tax imposed on the property or sub- ject not listed. 62. If the sheriff, or other person shall discover that any Sheriff discov- land has not been assessed, he shall make it known to the assessed"\o°re- county court; whereupon a board shall be appointed to as- port it to court. ii 1 I 11 J • xu u ■ I^roceedings sess the same, v/ho shall proceed in the manner herein pro- thereon. vided : and the court shall ascertain the amount of tax which, within the ten preceding years, the land has been liable for but not paid ; and the sheritt" shall be ordered forthwith to col- lect treble the amount, with interest, of all such tax, by distress or otherwise. 63. If any person shall refuse to take the oath prescribed in Persons I'^ting the fifty-eighth section of this chapter, he shall be deemed refusing to take guilty of a misdemeanor; and the justice shall forthwith com- oath, guilty of mit him to the common jail, unless he will be recognized with xo be commit- sureties to appear at the next term of the superior court of the ''','• '^n'' mdict- county to answer the charge ; and, on conviction or submis- 121, s. 12. sion, he shall be fined one hundred dollars at least, m.ore than the amount of his taxes. 64. It shall be the duty of the sheriffs to inform the attorney- Sheriffto in- general and solicitors of the State for the circuits and counties, i™™fl;cer^of '" concerning all omissions by tax-payers, done in their respec- fnmds on rev- tive counties to defraud the State of its revenue ; and the attor- puty of officer, ney-general and solicitors of the State for circuits and coun- — isso, 0. 121, ties, upon information, or good cause for suspicion, that any ^" person has omitted to render his tax list, or has failed to render an accurate and fair list of all the property, estate, and subjects upon and for which he is liable to be taxed, shall file a bill in equity against the person so defaulting; and the answer of 44 518 REVENUE. [Chap. 99. the defendant shall not be competent evidence against him in any criminal or penal prosecution whatever. Fonnsoftax 65. The public treasurer, at the public cost, shall have pre- trea^sur^r'^and'' pared and printed, as they may be needed, forms of tax lists, sent to clerks, with all the articles and subjects of taxation to be listed under — 1850, c. 121, ^j^jg chapter, or any future law, mentioned separately over the heads of parallel columns, in which the amount or quantity or description of each article or subject to be listed, is to be set down ; and he shall annually furnish to each county court clerk, two copies thereof for each collection district. Modeofent«r- 66. The justice appointed to take the list of taxables shall iis^g'll^isso^ c" ^^^ down each article or subject in its proper column, against 131, s. 15. ' the names of the persons listing, arranged in alphabetical or- der, and return the same to the clerk of the county court, at the term next after the time prescribed for taking the list ; and as a part of his return, which he shall always subscribe, he shall state that the list of each person listing was rendered on oath, in the manner prescribed and enjoined by law. List-taker or 67. If any justice appointed to take the list of taxables, or 'l^g\Ta'otf°^ any freeholder appointed to assess the value of land, shall wil- ptuiity ofmis- fuly refuse to discharge the duties of his appointment, he shall demeanor. ^^ deemed guilty of a misdemeanor. Lists returned 68. The clerk, on receiving the returns, shall record them at by deri^''and'^ length in alphabetical order, keeping the returns of each dis- set up in court trict separate from the other; and at the next county court, c^iolT.^sf after they are directed to be made, shall set up in some con- spicuous part of the court house, a copy of the whole, adding to the taxables of each person the amount of tax for which he is liable : and any clerk oflending against any of the duties prescribed in this section shall forfeit and pay one hundred dollars. Abstracts of 69. The clerk, on or before the first day of April next after lists of all taxes ^|jg lists are returned, shall return to the comptroller an ab- sent to comp- '. /■/•ii 1 troiier before stract 01 the same, showing the number oi acres of land, and i,?t April. their value, the valuation of town lots, and the number of white and black polls, and shall specify every other subject of What set forth taxation, and the aggregate tax on the whole. At the same in abstracts, time the clerk shall return to the comptroller an abstract of the lists of the county and poor taxes paid in his county, setting forth, separately, the number of taxable while and black polls, the amount paid on each hundred dollars value of land, and also the gross amount of taxes of every kind levied for county furnished by purposes : and the comptroller, at the public cost, shall furnish cmnpt.— R. S. tjje clcrks with blank forms for the aforesaid abstracts of both i«.^>2, c. 162.~ kinds, and include the abstracts in his reports. Vinaitv on 70. And if any clerk shall olfend against any of the duties cicTk foiling to prescribed in the i)rceedins' section, he shall forfeit and pay to send abstracts. ', ,, , ' i i n , i • i • — U.S. c. 102, the btate one thousand dollars, to be recovered against him ^ W2^~^^^^' ^"^ ^'''^ sureties of his bond in the superior court of Wake county, at the term next after the default, on motion of the attorney-general ; and it sliall be the duty of the comptroller to inform the attorney-general of such default. Chap. 99.] revenue. 519 71. The county court, on the prescribed oath, may take the County court tax list of any person applying to list his taxables, at any term "P to Marc ii, of such court before the first day of March, upon his paying tax lists,— to the clerk one dollar for recording the same. " ^*^'' "■ ^''• 72. The several county courts, at the term when they shall Board of vaiua- appoint justices to take the tax lists for the year eighteen hun- ev"ry five'vea'i's dred and fifty-five, and at the same term every five years there- to value re.ii after, shall appoint two respectable freeholders, men of skill ^^"'"'' and probity, to be associated with each justice, and these three shall be styled a board of valuation. They shall be notified of their appointment by the clerk, and as such board shall ascer- tain, either by viewing the premises or otherwise, as accurately as may be practicable, the cash value of the lands or other real estate with the improvements thereon, situate within the dis- tricts for which they are appointed, and return the same to their respective county courts, in the manner herein prescribed, p^^. -v^riiin;,, And for the town of Wilmington such a board shall be a p- ton every 'two pointed every two years after the time of their appointment, ^''75^'~5"*' in the said year eighteen hundred and fifty-five. iS52,'e! 69. 73. In estimating the value, the board may call and swear Mode of assess- witnesses to testify thereto, and they shall take into the esti- pifhTries," mate any fishery appurtenant to, or used with, the land ; mines, &c., also, all mines of metal, stone, or coal, or other matter dis- ™i'u"ron.'^ ^ covered, or supposed to exist, whereby the price of the land is Lands in sev- enhanced: and when the same tract, or body of land, shall lie ^herl'vaW. in one or more districts, the board, where the owner resides, shall ascertain the value of the whole tract; and, if the owner resides in neither of the districts, the board where the greater part may lie, shall value the whole. And the board shall an- nex to their return of valuation the following affidavit, sub- scribed by them, and sworn before, and certified by, some justice of the peace : — " We solemnly swear, that the foregoing valuation of land, AfKdaTit of with the improvements thereon, and privileges thereto attached, c°75'^s"~i"''' made by us, is, in our judgment and belief, the actual value "' ' ' ' thereof, in cash; and that, in making the same, we have en- deavored to do equal justice to the public and to the individu- als concerned : so help us, God." 74. The owner of land, or his agent, (if he be a non-resi- Owner to fur- dent,) shall on oath furnish the bojrd with a list, including land hif,4i'e'tate entries, setting forth the separate tracts, and also the several for valuation, contiguous bodies or tracts of land owned by him in the dis- "3^'"'' '^' "' trict, together with the names of the watercourses or other remarkable places on or nearest to which they may be situate, and the number of acres in each separate tract or contiguous bodies of land: town lots shall be listed separately, and each lot be numbered according to the plan of the town : and each separate body of land and town lot, shall be separately and distinctly valued and returned. 75. If the owner, or his agent, will not on oath state the when nnmiicr number of acres, or if the statement is so vague that the board of "cres un- 520 REVENUE. [CUAP. 99. shall order sur- cannot, with reasonable certainty, determine the number of Tevsatowner's jjgj.pj,^ ||,py gij^n procure tlic county or other surveyor to survey the land, at the cost of the owner, who may be warranted for his fees and other expenses, by the surveyor. VaUmtion too 76. If any one deem that too high a valuation has been put du^'ecU "^^ '^^' O" li'^ laud, the county court, at the ensuing term, may reduce How advauccii, the same, on motion, and satisfactory proof; or they may in- by minS^&o!'' ^"ire into the complaint, by commissioners appointed for that — 1846, c! 75; purpose. And in all cases where land, after valuation, shall 1848, c. 61. increase in value, by reason of mines of metal, coal, stone, or other valuable thing being discovered or worked, or if the same shall decrease in value by reason of fire or extraordinary causes, the justice taking the list, shall appoint and swear two respectable and disinterested freeholders, who, with himself, shall reassess said land ; and the justice shall affix their valua- tion to the land. Overcharge of 77. In like manner, if any one shall be charged with more OTrre^ted — R P°l' °'^ other Subject of taxation than he is liable for, the court S. e. 102,'s. 38. shall direct the clerk to give a certificate, stating the amount and subject of tax; which certificate shall be received by the comptroller of the State, and deducted by him from the proper tax to be accounted for by the sheriff. Pay of board. 78. The members of every board, engaged in assessing the —1846, c. 75. Yalue of laud, shall receive, each, one dollar a day for the time engaged, to be paid by the county court. Allowance to 79. For all services of the clerks in relation to the taxes, not clerk. jj.| ^j^jg £.|^ap{^er specially provided for, they shall be paid by the county such sum as the court may allow. Double tax, in 80. The county courts may release any person from the paj"^- m«"'bTre^ mcnt of a doable tax, for failing to list his taxables, in cases leased by CO. where it shall appear to the court, by satisfactory proof, that r7?'s~io^*^' ^^^'-'■^ failure occurred by reason of the sickness of the party, at ' ' ' ' the very time when the tax list was taken; or where it may appear that he rendered a list, and his name was omitted to be entered, or has been omitted in the duplicate prepared by the justice to be returned to the clerk, or other sufficient cause, to be judged of by the court: and the court shall have no power to remit a double tax in any other case, and they are expressly forbidden to do so. Tax lists de- 81. The cleik of the couijty court shall, on or before the tosUerifl^by^"^'' first day of April, in the year ensuing the taking the lists, de- April, liver to the sheriff of the county a fair and accurate copy, in fe"™onists™' alphabetical order, of the tax list, which shall contain the pub-" Penalty for lie tax, Or tax payable to the public treasurer, and the taxes s'"c!1o2;T'4'i. imposed by the justices of the county court. It shall likewise designate the separate amount due from each subject of taxa- tion, and extend the aggregate amounts due from each person in columns. And if'any clerk shall fail to furnish the sheriff, at the time provided, with a copy of this description, he shall % be deemed guilty of a misdemeanor, and the sheriff shall in- form the grand-jury thereof. Chap. 99.] eevenue. 521 82. The sheriff shall forthwith proceed to collect said taxes ; Tax collectors and when he shall collect, by his deputies, who are not sworn, **i°02T4i %. or others, such persons shall in open court, or before a justice of the peace of the county, take an oath, faithfully and hon- estly to account for the same, with the sheriff, or other person authorized to receive them. 83. If any sherift' shall die during the time appointed for If sheriff die, collecting the taxes, his sureties may collect them; and for JjJfj^'J.'jfiigg'i that purpose shall have all the powers and means for collecting taxes.— R. s. c. the same of the collectors and tax payers, as the sheriff would ^°^' ^' *^' have had ; and shall be subject to all the remedies for collec- tion and settlement of the taxes on their bond or otherwise, as might have been had against the sheriff, if he had lived. 84. The sheriff, and (in case of his death) his sureties shall Sheriff allowed have one year, and no longer, from the day prescribed for his ut oIl k>^to\- settlement and payment of the State taxes, to finish the col- lect.— R. S. c. lection of all taxes; but this extension of time for collection i°2>^-**- shall not extend the time of his settlement of the taxes. 85. The sheriff shall collect the taxes as they are set down shall collect in the list, and, moreover, shall collect of all persons, whose '^™.'''''*'"'°" ' 11111 • 1 1 unlisted prop- taxables are not listed, double the taxes imposed on the same erty. subjects; and as to any land not listed, which may not have ^|"°'^^|^J'^j^' been assessed at the last assessment, the same, in estimating its value.— R. the double tax, shall be deemed to be of the value, by acre, of ^- ''■ ^*^' ^- ^^• the highest valued tract adjoining thereto. 86. Immediately on receivins: the tax lists, the sheriff shall On receiving • • ta.K lists slicriff advertise the fact, and that he holds them ready for inspection, to advertise He shall also request, therein, all persons to inform him of any 'tem, &c.— R. , , , 1 • I ' t- u r \ 1 ■' &.O. 102,6.46. taxables which may not be listed. 87. For the more efficient collection of the taxes, the sheriff Sheriff may at any time from the delivery to him of the lists, till the first _^y"^"(,°'j02' day of October in the next year, may, and if there be need, s. 47, 48. shall distrain and sell the property of the tax payer, to satisfy the same ; selling first his personal, and then his real estate. 88. If any person liable for taxes on other subjects than Tax of persons land, shall be about to remove from the county, after listing move to* be col- time and before the period for collection, the sheriff shall make lected fortli- affidavit thereof before the clerk, and obtain from him a cer- 5^n'„"''~,'i" ''' '^' ' 102, s. 4y. tificate of the amount of such person's tax, and forthwith collect the same. 89. If any person be liable for taxes in any county wherein Tax of solvent he shall have no property, but shall be supposed to have no'prnpertv'i'if property in some other county, and will not pay his tax, the the county; coi- shcriff" shall report the fact to the county court, held next af- ,futiun. ^ "*" ter the first day of October ; and thereupon the court shall direct the clerk to issue a feri facias to the sheriff of that county, returnable to the court whence it issued, for such tax and the costs of process and executing the same, which the sheriff shall execute in the manner of writs of execution in other cases ; and the tax collected thereon shall be paid to 44* 522 RETENTJE. [CflAP. 99. the clerk of the court, and by liim paid to the sheriff, to be ac- counted for as other taxes. £'naity''frt;:.- ^0. The sale under distress of personal estate for taxe.s, es, howmiide. shall be advertised ten days previous thereto, at three public -K^S.c. 102, places in the district wherein the delinquent' tax payer shall reside; and if he reside not in the county, then in the district where the taxables were, or ought to have been, hsted ; and the amount of tax due shall be stated in the advertisements. howMduct'- ^^- '^'^^^ ^'^l^ °f l*!"^ fo"" ^'I'^es due thereon, shall be made od. under the following rules : — furn"tocou?t (^•) P^"" ^'^^^^^ ^^all retum to the court of pleas and quar- a list of lauds, ter-sessions of his county, held next after the hrst day of Jan- ^<^- uary, a litit of the tracts of land which he proposes to sell for taxes, therein mentioning the owner or supposed owner of each tract, and if such owner be unknown, the name of the last known or reputed owner, the situation of the tracts, and the To be read amount of taxes for which they are respectively to be sold: aloud, record- u*ii*i.utii ii i. •^t ed, audput up wnicli list shall be read aloud in open court, recorded by the R. ToToTT ^''^'"'^ upon the minutes of the court, and a copy thereof shall 52, 53°' ' *■ be put up in some public part of the court house. not'ifie7how . (^'^ '"■'.'^^ county court shall order the clerk of the court to ' ■ issue notice to every person whose land is returned as afore- said; and a copy of the notice shall be served by the sherifi' on the owner, or his agent, and returned to the next couniy court; and if the owner be a non-resident, the clerk shall pub- . lish the same in some newspaper printed in the State ; in which land K giT- advertisement shall be mentioned the situation of the land, the iSrs'^M— ■ ®^''*'^'^® *^" °^ "*^^'' which it lies, the estimated quantity, the I860,^e. lis. "ames of the owners when they are known, and the names of the tenants or occupiers of the same. J^^''«^^^ojd in (3.) The sale shall Ije made within the two terms next ter^retunied," Succeeding the term when the returns are made of lands to be r'io2'~5i^' ^°''^' '^"*^ ^* ^"*^'^ P.''^^*^ "^ ^'^® county as is directed for sale of ' ^' • land under execution ; and the whole expense attendant on the advertising and sale, shall be chargeable on the lands, and raised at the sale. Whole tract (4.) The whole tract or contiguous body of land, belonging Who deemed to one delinquent person or company, shall be set up for sale R"'.^T'■~;!^■ ^t ^'"^ ^''^"^^ ti'"'^> and the bid shallbc struck off to liim who O. C. lUJ, S. 66. •11 . , , /• I 'III. will pay the amount of taxes, with all the expenses aforesaid, for tile smallest part of the land. Rt^LmdTe™ ^^'^ ^'^* ^'^^ second term next succeeding the term when &;c. ' 'the returns arc made of lands to be sold, the sheriff shall re- turn a list of the tracts actually sold for taxes, the quantity of the tract bought and to be laid off, the name of the purchaser, and the sum paid to the sheriff for taxes and charges ; which Proceedings on ^^^^ ^hall be read aloud by the clerk in open court, "shall be re- r m'Tes '^^ ^"^'^^'^ '" *'"-' "linutes of the court, and a copy thereof shall be '^' ■ put up by the clerk, during the term, in some public part of the court house. Chap. 99.] revenue. 523 92. The land of an infant, lunatic, or person non compos Lands of in- OT(?«<(>, shall not be sold for taxes. Provided, however, \\\'ax[''"l''^^°^l^°^ where land may be owned by such persons, in common with Land held another or others free of such disability, the share or interest ■g",^"]J'^JJfgQQg of the persons so free, shall be subject to be sold for the taxes how sold. due on the whole tract; but before setting apart the quantity to^crtitTe'ui bid otr, the purchaser by petition shall cause the tract to be s"ch case.— divided among the tenants in common, and the share or in- 33 ••'•i''^''- terest of the defaulting tax payer being set apart, the pur- chaser may proceed to lay off on such share, the quantity by him bid off, and secure the title as is before provided : and the time necessarily employed in procuring such division, shall not be reckoned against the purchaser. 93. The owner of land sold for taxes under section ninety- Lands may be one of this chapter, his heirs, executors, or administrators, or one year. any other person for them, may redeem the same from l he ^'°<'?°f re- purchaser at any time within one year after the sale by paying s. c. 102, s. 57. or tendering in payment to the purchaser, or to the county court clerk of the county where the land lies, the full amount of the price paid to the sherilF, and twenty-five per cent thereon. 94. If the land so sold shall not be redeemed within the Purchaser to period aforesaid, the purchaser may at the end of that time, ofi-'^'^u^'',"tu '"'^ select the quantity of land struck off to him, out of any part bought in a of the tract or body of which the same was bid off; the said &"— 'E's'°e^' quantity to be laid off in one compact body, as nearly in aiu2,s. 58." square as may be, and adjoining to some of the outlines of the whole tract or body of land. 95. Witliin one year after the time of redemption shall L""'"" be sur- have passed, the purchaser at his own cost, his heirs, execu- after time 6f tors, or administrators, or any other for them, may procure the "■deeming. quantity bid off to be surveyed by the county surveyor, who veVed.— R. s. shall make out and certify, under his hand, a fair plat of the c. 102, s. 58, 59. survey with the courses and distances fairly and truly set forth ; and if the county surveyor on request, shall fail to make such survey and plat, then any other surveyor may make and certify the same. 96. The sheriff on being presented with such certified plat, Peed to be within the year after the time of redemption is passed, shall ™r.''s^^c.^102" convey to the purchaser the land therein contained. »■ so. 97. Where by any provision of the law, any sheriff or of- Proceedings ficer, other than the person who sold for the taxes, shall be ranTeys'than' authorized to execute a conveyance for the land, the purchaser the eheriir who shall apply to the county court, and on showing to the court 102, sTus. that such purchase had been made, and the price paid to the sherilTwho sold, and that he has paid the other taxes since ac- cruing thereon, the court shall direct the present sheritFto ex- ecute a deed, on the purchaser producing to him a certified plat and survey, as is provided for in sections ninety-five and ninety-six of this chapter. 98. The purchaser of land sold for taxes, under section f'"'';'''^/'')' '0 ninety-one of this chapter, shall be considered as taking and bacirinx'.— R. 102,6.64. 524 EEVENTJE. [Chap. 99. holding the same subject to all the taxes accrued from the first day of April in the year preceding the purchase. Penalty on 99. If any sheriff or clerk shall fail to perform any of the clerks "omit- duties prescribed in sections ninety and ninety-one of this ting duties chapter, he shall forfeit and pay to the person aggrieved one sections \iiiety hundred dollars, and shall moreover be liable, he and his sure- andninety-one. ties, ou his bond, for all such damages as any one may sus- 64. ' ' ' ' tain by reason of such default. Penalty onco. 100. If any county surveyor, being required within two sm-ve.vor fail- ,, o "ii i 1 r n i j_ ii jng to survey, months after the survey may be lawfully made to survey the — K. s. c. 1U2, land bid ofi' at a sale for taxes, shall wilfully fail to do so within four months after such request, he shall forfeit and pay to the purchaser, or his executor, or administrator, one hundred dol- lars. buyerfftTolfe l^^' ^^ "° person will bid a less quantity than the whole bid less than land, for the taxes, the bid shall be deemed the bid of the s'hen'fflo'.''e-°'" ^^^^6, and the land shall be struck off to the State as the pur- port to county chaser; and the sheriff shall report in writing to the county Pioceedinffs court, at the time he returns the list of lands sold for taxes, thereon.— K. S. what and whose lands are thus struck off to the State, describ- c. 102, s. 60. jjjg them particularly; which report shall be recorded on the minutes of the court, and thereupon the title of said lands shall be deemed to have been vested in the State from the time of purchase. Copies of re- 102. The clerk shall within twenty days after the return of spates to'^becer- ^^'^ sheriff's report of the land sold to the State, make and titled by clerk certify two copies thereof ; one of which he shall transmit to Ind^^e^ffy.' ^^e comptroller, and the other deliver to the sheriff, (or to his I'roceedings sureties, when they act,) who shall deposit the same with the OiereuponpR. gecj-gtary of State, to be by him recorded ; and the secretary 02. ' shall grant to the sheriff a certificate setting forth what and whose lands, and the quantity and value thereof, have been sold for taxes, and struck off to the State. Sheriff failing 103. If any sheriff or other person authorized thereto, shall OTdqmsit'co'i'y sell for taxcs and strike off any land to the State, and shall witli secretary, fail duly to report the same to the county court, or to duly ob- wUh la.ouo"- ^'^'" ^"^^ deposit a copy thereof with the secretary of State, B. S. c. 102, s. the comptroller shall in his report to the treasurer charge such *^' sherifl' (or other person acting in his stead,) with the sum of two thousand dollars, and the treasurer shall recover the same as unpaid tax. Lands bid off 104. Lands bid off for the State maybe redeemed in like by state re- , . j i ii i i i j • ii deemabie;— on time, and under the same rules and regulations as those pur- R''s'""io2~ chiised by individuals, except that the payment (which shall 62. ' ' ' " be double in amount of all the taxes for which they were sold,) shall be made to the treasurer, and on his certificate thereof the secretary of State shall, on being paid his fees, issue a grant to the original proprietor, his heirs, or assigns, and at the same time shall certify the payment to the comptroller. ^anTRn/wb- ^^'^- Lands bid off for the Stale shall, as to the person for ' whose tax the same is sold, his heirs, or assigns, be liable to be Chap. 99.] revenue. 525 entered as vacant land; subject nevertheless, to the right of re- jccUo entiy-— demption within the time prescribed. tij." ' ' 106. When land shall be sold for its tax, and the sheriff o^ishcnftr-f^^^ shall die, or otherwise become unable to report his sales, his gm^g;-;,, ,n,\y sureties may report the same within the time prescribed ; and report sales, shall proceed as to land bid oil' by the State, in the same man- ^'''' ner as the sheriff might. 107. The sheriff, and all receivers of public moneys, shall S'.ieriff and all yearly settle their accounts with the comptroller, between the t, settle with last day of June and the first day of October, (unless where cimptroiier *', ,. , 1 ■ 11 T i 1 i 1 between June the settlement of such persons may be specially dn-ected to be and Oct. made in another manner, or at another time,) so thfit it may <^'™i't™i'CT t" ' , . , • i ii X repin-t to treits- be known what sum each one ought to pay into the treasury : uror amount and the comptroller shall forthwith report to the public treas- ^"|'^'°'jo2''t^' urer the amount due from each accountant, setting forth therein eo. ■ (if a sheriff's account,) the net amount of each species of pub- lic tax : and thereupon the treasurer shall raise an account against such person and debit him accordingly. lOS. The sheriff in making his settlement as aforesaid, shall Sheriff to ren- 1. . I- ■■• 1 i.,i J' ji T re J. '!'''■ '0 comptrrr designate in a list by him rendered at the time, the dilierent the amount of sources from which were raised the taxes accounted for by ^^^'^ '^'"'l °^ him, and the particular amount of tax received from each Acopy certifi- source : and the comptroller shall give to each sheriff a certified ^^^^^y^ Xposit- copy of such list, which the sheriff shall deposit with the clerk ed with the of the county court of his county, for public inspection. I" \vh*t giieriffs such settlement the sheriff shall be charged with the amount to be charged of public tax as the same appears by the tax lists transmitted J^i)'*;"^^; ''" °" by the clerk to the comptroller : also, with all double taxes, and taxes on unlisted projjerty, by him received, and with all other tax which he may have collected, or for which he is chargeable. 109. And he shall be credited, (1.) With the amount of With what State tax on land bid off by the State with the costs attend- ?p°j.'o^j (.^ml ant on the sale and procuring the title, and with commissions bought by on the whole including the county revenue, on producing the i„soivente al- certificate of the Secretary of State, as is provided in section lowed by court. one hundred and two of this chapter. (2.) With all insolvent ~6.2',i3^'^75. II taxables allowed by the court, as hereinafter provided : and 1S44, c. is. where the sheriff shall be required to settle before such taxables are allowed, he shall be credited with them in the next year's settlement: or the sheriff may, at any time thereafter, on pro- ducing a certificate of such taxables allowed, procure an order from the comptroller on the treasurer, for the amount thereof. 110. The sheriff shall return, upon oath, to the court of J'J^'gi^^J'™''^' pleas and quarter-sessions of his county, at the term next pre- sheriff from ceding the time at which he may settle with the comptroller, a <=''',':'\' ™'' "" ,. ? ,, , . , 1 *^ 1 ■ ^ r 1 11 unlisted taxa- list of all moneys which he may have received from the clerics bies, to be ro- of court, or as double taxes, from taxes imposed on unlisted J,"'jl"'|,Vfn,.e o'^ property, or on merchants, merchant-tailors, jewellers, retailers tober.— R. s. by the small measure, tavern-keepers, billiard tables, howling- c^J02j^»^,^s.— alleys, stage-players, slight of hand performers, rope-dancers, usil tumblers, wire-dancers, circus riders, equestrian performers, ex- 526 REVENUE. [ClIAP. 99. hibiters of natural or artificial curiosities, apothecaries, clru'»- gists, non-resident owners of stud-horses or jackasses, horses, and mules brought into the State for sale, sellers of carriages, buggies, and other riding vehicles, persons keeping establTsh- ments for the sale of such vehicles, peddlers, sellers, or persons offering to sell by sample, brokers, insurance companies, agen- cies of banks incorporated out of the State, ex hibiters of me- nageries, singers, dancers, Ethiopian serenaders, performers for reward on musical insfruments, and other exhibitions for pub- lic amusement for reward, and on any and all other subjects for which he ought to account. tosetfor'h!'' ^^^- '^'"^ ^'^^ '''^" ^'^t ''0'"^'^ t'l*^ "^me of each person who To be read, re- may have paid any such tax, its amount, and for what it was «n?la1dTefofe P'^''^' ' ^^''"'^'^ ''''^^' '^*" '"^'^^ ^'^"^ '" op^'» ^ourt, and shall be grand-jury.— recorded on the minutes of the court by the clerk, who, during k S. c. 102, s. the space of six months after its retuni, shall keep a copy thereof set up in some public place in the court house, and shall lay before each grand-jury, during that time, a copy of the same. ^i'es'fiied'wa ^^^- ^^ *'^° ^?^'"^ aforesaid of the county court shall be held cierk'in vaca- before the sheriff can complete and return the collection of ioT's~69' ^' ''■ ^'^^ ^^^^^ ^^^^ aforesaid ; or if, from any other cause, the sheriff ' ■ ■ have failed to make his return at that court, then the list of said taxes may be returned and filed with the clerk of the court during vacation, and sworn and subscribed in the presence of the clerk before two justices of the county ; and the same shall be recorded on the minutes of the court, and a copy set up and laid before the grand-jury as aforesaid. Sheriff to deliv- 113. The clerk, on application of the sheriff, shall deliver to comptroller" or ^^'"^ ^ certified copy of such return, which the sheriff shall de- wUh'S'i^ono _^^^^^ ^° ^^^ comptroller when he settles his accounts. And if F.' S.'c' 102, s.^'iy slieritr shall fail to deliver such copy to the comptroller, 70, 71. the comptroller shall add to the taxes, for which such sheriff is liable, one thousand dollars, and so report his account to the treasurer. rS' forTio- ^^^' ^^ ^"^ ''^^''''^ ^'^'^'^ ^'^^^ ^° perform any of the duties re- MnK sL-t'ions q"ired in sections one hundred and eleven, one hundred -Vs'c"i02 ^"'^ ^^velve, and one hundred and thirteen of this chapter, or 6. 73'. ■ "' '' **''aU falsely certify any such return of the sheriff, he shall be deemed guilty of a misdemeanor, and on conviction shall be removed from office. derk'fainn to ^^'^" ^^ °'"^ register Or clerk shall fail to pay to the sheriff settle tax witii ^"7 tax which he ought to pay, the county solicitor, at the in- sllod -'i846 ^*'^"''"*^ °^ ^'^"^ sheriff; shall bring suit on his bond, and shaU c. 75'. ' recover, m addition to the taxes withheld or not accounted for, one hundred dollars ; and the whole recovery shall be paid into the treasury by the sheriff. v,'ie"''in'whar" • ^^^' ^° '"solvent taxables shall be credited to the sheriff in eate aMoweii by '''» settlement with the comptroller, but such as shall be al- ri'ol' Tk 76 ^°^^''''^' ^^ *'^° county court ; a list whereof, containing the names ' ■ ' ' • and amounts and subscribed by the sheriff", he shall return to the court at some term preceding said settlement; and the Chap. 99.] revenue. 527 same shall be allowed only on his making oath that he has been at the chvcUing-house or usual place of abode, of each of the tax payers, and could not, there or elsewhere in the county, find property wherewith to discharge his taxes, or such part thereof as is returned unpaid; and that the persons contained in the list were insolvent, at and during the time when, by law, he ought to have endeavored to collect their taxes. Such list shall be recorded on the minutes of the court, and a copy thereof, within ten days after its return, shall be set up by the clerk, in some public part of the court house. 117. If any sherifl' shall return to court, as insolvent, the Penalty on name of a person who is not listed, or has paid his taxes ^'jTfiL'e li'su" for that year, or shall by himself or his deputy, collect from onnsoivcnts. any person his tax for the year, for which he has been returned ^.g tiTecorU^ an insolvent, without accounting for the same ; or if any clerk and setup lists. shall fail to record or set up the return as required in the pre- ~^' ^j °' ^°^' ceding section, the person so offending, shall forfeit and pay to the State one hundred dollars, and the county solicitor shall prosecute a suit for the same. 118. Every sheriff', (or other person allowed by law to col- Oath of sherifl', lect and accjunt in his stead,) on settling his accounts with comptroller!— the comptroller, shall take and subscribe the following uath : R- S. c. 102, 3. I, A. B., sheriff of the county of do on this the ^*' "' ^*- day of one thousand eight hundred and make oath that the list now given in by me, is, to the best of my knowledge and belief, complete, perfect, and entire, and doth contain the full amount of all moneys, by me, or for me re- ceived, or which ought to have been received, on account of the public taxes for the year one thousand eight hundred and , on listed and unlisted property ; and all double taxes, and all taxes received from clerks of courts, and from insol- vents not heretofore accounted for ; and all taxes received, or which ought to have been received, from any other and all other sources whatsoever. And I do further make oath, that if I, or any person for me, shall hereafter collect any unpaid tax now due and not rendered in said list, I will render a true account thereof, within one year after collecting the same. 119. If the comptroller at any time shall have just cause Comptroller to suspect that any sheriff, or other person accounting in his ^^^^jf '?'. stead, may have made a false return or sworn falsely in any about'lho reve- matter relative to the collecting or accounting for any tax, he i™e,jo inform, shall thereof inform the officer prosecuting in the superior 102, s. 72. court of the county wherein the offence was coiumitted, who shall take such steps as public justice may demand. 120. The sheriff for his services in collecting and paying Commissionf the public taxes into the treasury shall receive a commission olj^eftbmeii't'''" of three per cent, on the net amount received by him from the — ii. S. c. 102, clerk for taxes imposed by the seventh section ; and five per '• *"• cent, on the net amount of taxes collected from every other source, to be deducted in the settlement of his account with the comptroller. 528 REVENUE. [Chap. 99. Furtiicrcora- 121. And for his settlement with the treasurer, he shall be S? ot^oT sTsi! P'^''^ t)y the treasurer three dollars for each day he may be necessarily engaged therein ; and two dollars for every thirty miles of twice the estimated distance from his home to the seat of government, by the most usual common highway. Sheriff failing 122. In every case of failure by a sheriff or other accounting troUeftorepOTt°^i^""> t"^ *'^**''^ his accounts within due time, or to take the his account, oath required on his settlement, the comptroller shall fort h- ^atld?"^" with report to the treasurer the account of such sheriff or offi- Treasurer to cer, deducting therefrom nothing for commissions or insolvents, Igainiu'ii?'"' but adding thereto, one thousand dollars, for the amount of niul sureties.— taxes supposed not to appear in the lists transmitted by the 86 In.''' ^"^'^' clci'k : and if the whole amount be not paid, the treasurer, on motion of the attorney-general in the superior court of Wake county, at the first court after the default shall have occurred, shall recover judgment against such defaulting officer and his sureties, for the amount reported against him, without other notice than is given by the delinquency of the officer. Clerk to fur- 123. And to the end that their obligation and names may wi'th certme'd ^^ kiiowii, the clerk of the county court, at the same time copies of sher- when he transmits to the comptroller the tax lists, shall traiis- derVnaity of ^i*- ^0 '^'^'^^ ^'^o ^ copy Certified under the seal of the court, of Si.ooo. — R. s. the bond of the sheriff, upon pain, for his default, of forfeiting "■ ''^' ' to the State one thousand dollars; which the treasurer shall and is hereby specially charged to collect in like manner and at such time as is provided in the preceding section. Register to for- 124. The register of every county, yearly, on or before the wi'ti'i certffied ^^^^ ^^Y o^ September, shall transmit to the comptroller a certi- copy of cierii's tied copy of the bond of the clerk of the county court, as the penaity"of^"^ same is registered, upon pain of forfeiting for his default to $1,000.-1850, the State one thousand dollars ; which the treasurer is hereby specially charged to collect, in like manner and time, as is pro- vided in section one hundred and twenty-two of this chapter. In suits against 125. In all suits directed by any law to be instituted on cS^ copies motion of the attorney-general, at the instance of the treasurer to be evidence, or comptroller, against any sheriff or clerk and his sureties, a Zii. ^' '^' ^°^' "^^Py °^ *'"^ bond of such officer, certified as aforesaid and sent to the comptroller, and by the comptroller certified to- gether with the default under his hand, shall be deemed sulli- cicnt evidence of the execution of such bond and the default of the officer, to allow the judgment to be entered. If register fail 126. And in case of the default by the register to duly cer- cop™"lim^ ^ify ^"roperli/," what, 9 Ire. 81. Wlio to pay land tax; landlord or tenant, 11 Ire. 624. Sect. 7. Bos. Eq. 43, 2 Jones, Eq. 51. Sect. 34. Constilntiwinl, 1 D. & B. 19. Sect. 81. What sheriff to receive lists: old or new, 1 Dev. 463, lb. 451. Sect. 91. (1.) What a purchaser mast sliow: that tuxes >cere due, 1 Jones, 119, 4 D. & B. 363, lb. 386, 3 Ire. Eq. 131, 3 Dev. 432, 4 lb. 649, 1 Mur. 311, 1 Car. L. R. 511, 2 Jones, 59. Sale after tender, 3 Hawks, 283. When tax due imparl only, N. C. 7 K. 41, 4 Dev. 549. Sheri^'s deed color of title, Bus. 303. (6.) 6 Ire. 129. Sect. 101. 5 Ire. 344, 4 De%'. 549, 2 Hrtwks, 17. Sect. 112. 2 Dev. 524. CHAPTER 100. RIVERS AND CREEKS. Sectiok 1. County courts may appoint commis- Bioners to examine streams, and make improvements. 2. Overseers to be yearly appointed by county court ; their duty. 3. Justices may direct flats, SiC, to be procured. 4. Power of county courts of Jolmston, Wayne, &c., as to Nouse river. 5. Streams to be laid ofl' into districts. One fourtli to be left open for pas- sage of fish. 6. Obstructing boats by felling trees, &c., misdemeanor. Co. courts may appoint cora- m'rs to ex- amine streams, and make im- provements. — E.S. c. 103, s. 1. Overseers appointed; yearly by co. court: their duty.— U. S. c. 103, s. 2.— 1844, c. 66. 1. Where any inland river or stream shall run through the county, or be a line of their county, a majority of the justices of the court of pleas and quarter-sessions of the several coun- ties may appoint commissioners to view such river or stream, and make out a scale of the expense of labor, with which the opening and clearing thereof will be attended ; and if the same shall be deemed wittiiii the ability of the county, and be ex- pedient, they may appoint and authorize the commissioners to proceed in the most expeditious manner, in opening and clear- ing the same, by taking such hands from the public roads, as the court shall permit, and direct to be allotted to such work ; which hands shall be placed under overseers in companies, every overseer and company to have a distinct portion of such river or stream laid off by the court. 2. Every overseer shall be appointed by the county court; and the clerk shall issue a notice, expressing therein the name of the stream, the distance he is to work thereon, and the hands appointed under him, and the sheriff shall serve the same upon him, under the same rules as notices are served upon overseers of roads ; and (he overseer and hands, upon receiving three days' previous notice from the commissioners, shall proceed to work upon and clear out such river or stream, subject to the same rules and double the penalties imposed by- law upon overseers and hands working upon public roads; and no overseer or hands, appointed to open and cl(.'ar out navigable rivers and streams, shall be compelled to work on public roads. And the county courts thereafter shall annually Chap. 100.] rivers and creeks. 531 appoint overseers, and assign such hands, as they may judge proper, to work on the rivers and creeks, and keep in repair any slopes erected or to be erected; and such overseers, and Subject to the hands assigned, for a failure of duty, shall be subject to all '""^^1^0^ the penalties imposed by law upon overseers of roads and the roads. hands liable- to work thereon. 8. The justices appointing the commissioners may direct •Tusticei mnr them to purchase or hire a flat with a windlass and the appur- fo'^i';e'proc,',ri^^i.' tenances necessary to remove loose rocks and other things, —R- S.e. io3, which may by such means be iTiore easily removed, and allow "" ' the same to be paid for out of the county funds. 4. The justices of the courts of pleas and quarter-sessions Power of of the counties of Johnston, Wayne, Lenoir, and Craven, seven joiifi^cliJ^ "^ being on the bench, at the first court which shall be held for Wayne, Lc, their respective counties after the first day of July, may yearly ^4°.— R.'^S. appoint and lay off, in convenient districts, all the inhabitants o. 103, s. 5. of their counties, respectively, resident above Spring Garden on both sides of Neuse river, within such distances of the river, as the said county courts shall appoint; and for each dis- trict appoint some person as overseer, who shall cause all per- sons, within the district allotted to him, liable to work on public roads, to work at least six days in every year on the river, unless the county courts shall otherwise direct ; during which time he shall cause that they be employed in removing all logs, brush, and other obstructions to the navigation ; and for neglect he shall be deemed to be guilty of a misdemeanor : and every person liable to work as aforesaid, or send hands, who shall fail when warned, (as hands are for working on roads) to appear and work, with such tools as the overseer shall direct, shall pay for each day, one dollar, to be recovered and applied in the same manner as fines for failing to work on public roads. Provided, hoivever, that nothing contained in this section shall abridge, or interfere with, the rights and privileges of the Neuse River Navigation Company. 5. The county courts may appoint commissioners to ex- Streams to be amine and lay oli' the rivers and creeks in their county ; and rjistiicts. One where the stream is a boundary between two counties, may f™'* '"!'« lay off the same on their side ; in doing so, they shall allow p'assTgTof fish. three fourths for the owner of the stream for erecting stops, — K. s. o. los, dams, and stands; and one fourth part, including the deepest part, they shall leave open for the passage of fish, marking and designating the same in the best manner they can ; and if mills are built across such stream, and slopes may be neces- sary, the commissioners shall lay of!" such slopes, and deter- mine the length of time they shall be kept open ; and such commissioners shall return to their respective county courts, a plan of such slopes, dams, and other parts of streams viewed and surveyed. 6. If any person shall obstruct the free passage of boats, by P'"'™"'',"'!. J I , , I 1 11 u bofits bv telling fellmg trees, or by any other means whatever, he shall be trco?, Sc mis- deemed to be guilty of a misdemeanor. trs'^c'ios'T * 532 E0AD3, FERUIES, AND BiUDGES. [CuAP. 101. CHAPTER 101. ROADS, FERRIES, AND BRIDGES. Section 1. Whut sli;dl be public roads and ferries. County courts to establish and dis- continue ferries, roads, and bridges. 2. Ferries and roads, how established, altered, or discontinued. 8. Court may decree how costs shall bo paid. Appeal. 4. Hoads, how laid out. 6. Wlien changed, how received. 6. How persons may turn roads on their own land. 7. Overseers of highways annually ap- pointed and hands assigned. Their duty. Notice of appointment. Not bound to sei-ve more than one year in three. 8. Clerks, in ten days, to furnish sheriffs with orders appointing overseers. Sheriffs to apply at clerk's office for orders, and serve them in twenty days. Penalty on clerks and sheriffs for neglect. 9. Overseers to summon hands, three days before work day. Who are hands. Penalty for failure to work. 10. Notice, how served. 11. Overseers competent to prove notice to hands. 12. No person excused from working, but by county court. 13. Overseers may apportion road among hands. But still liable for any de- fault. 14. What to be width of roads and cause- ways. 15. Timber and earth taken from adjoin- ing lands. 16. Owners may petition county court for pay. 17. Footways and hollow bridges, made where court may order. Order of eourt presumed after ten years' use. 18. Sign-posts at fork of roads, to be sot up by overseers. Penalty for ne- glect. 19. On persons, removing or defacing posts or mile-maiks. SiCCTION 20. Overseers to measure and mile-mark roads. 21. Penalty on overseers for general ne- glect of duty. 22. Bridges to be erected at county ex- pense. 23. Coutracts to build bridges, binding on county. 24. Osvners of mills and ditches, to keep up bridges, when. 25. Penalty for neglect. 2G. Toil-bridges allowed by court, when. Builders to keep them in repair, or forfeit toll, .and be indicted. 27. Tolls of ferry regulated by county court. Penalty for neglect to keep it up. 28. Owner may build toll-bridge at hit ferry. Draw in bridge, when made. 29. Bonds of keepers of ferries and own- era of toll-bridges, taken by county eourt. Persons injured may recover damages. 30. Penalty for keeping ferry. Sec, with- out authority. Proviso for mail-car- riers. 31. Fastening vessel to float-bridge, pen- alty. 32. Eailroad companies, &c., to keep draw in bridges. 33. Owners of steamboats, &e., to notify owners of bridges, to construct draws. Penalty for neglect. 34. Counties to construct draws, when. 35. Railroad companies, &;c., to keep bridges over county road. Penalty for failure. 36. Duty of attorney-general and solici- tors to prosecute for injuries to bridges. 37. Cart-ways, in what cases, and how ob- tained. Proceedings therefor. 38. May be changed or discontinued, and gates or bars erected, &c. Penalty for injuring them. J9. License to erect gates across public roads, how obtaincil. 40. Who exempt from working on roads. ^.bhctlds' 1- ^''^ '°^'^^ 'i"*^ f'""'^^ '°it.\'-—R- county. ^- <=•"*• 32. Railroad, plank-road, and turnpike companies, erecting R^iiiro.iri eo's, bridges across watercourses, shall attach and keep up good ^,':;;v°il"'''^ and sufiicient draws, by which vessels may be allowed con- bridges.— i84G, veniently to pass. "■ ^^' '• ^' ^• 33. Owners of steamboats or other craft, who may intend Owners of to navigate any river or creek over which any person may have ^c""(u°jjlfif a bridge, may give three months' notice thereof in one of the owli'ors of" public journals of the State, published nearest the river or ^a'u^cdVaws?"" 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 rcn;i!tr for the said bridge shall not, within three months from the date "'"f^'"^•7lf'"'' of the notice, construct the required draw, he shall forfeit and pay to the person so notifying, if he be thereby prevented from navigating the watercourse, fifty dollars ; and shall be further subject to the like penalty, under like circumstances, for every three months default thereafter. 34. The county or counties which may erect bridges shall. erect draws, 540 EOADS, FERRIES, AlvD BRIDGES. [ChAP. 101. Tvhere ncces- by their court?, provide and keep up draws in all such bridges, ^"■^' where the same may be necessary to allow the convenient pas- sage of vessels. EftiWd CD's, 35. Railroad, plank-road, and turnpike companies, each, shall &c.,tokeop , , .'^ ' r f ' ' bridges over Keep up, at their own expense, ail bridges on or over county, county roads, or incorporated roads, which they have severally made it neces- sary to be built, in establishing their respective roads ; and on failure to do so, shall be deemed guilty of a misdemeanor, and, Penalty for on conviction thereof be fined, and execution may issue for c*'5"s?r2^3'^4. ^"^ '^"'^ costs ; and moreover shall forfeit and pay twenty-five dollars. Dutyofatt'y- 36. The attorney-general, and the solicitors of the superior for" to"prose'-°'" ^"^ couiity courts are authorized and directed to institute suits, cute for inju- in the name of the State, in the counties wherein the injuries — r«46, c. u^s. '"^y ^^ done, for the recovery of damages, against all persons, ii2. who shall wilfully or negligently injure any public bridge be- longing to or situate in any county or counties, by forcibly running any decked vessel, boat, or raft against the same ; by cutting trees or timber in the rivers or creeks above such bridges, or by any other manner or means whatsoever. In ease the injury is done to two counties, the action may be brought in either for the entire damage ; and the damages 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. Cart-way, in 37. If any person be settled upon or cultivating any land, how o'btalneT. ^"^ which there is leading no public road, and it shall appear necessary, reasonable, and just, that such person should have a private way to a public road over' the lands of other persons, he may file his petition in the county court, praying for a cart- way to be kept open across such other person's lands, leading to Proceeding? some public road, ferry, bridge, or public landing; and upon c^Tof "sraa.' ^' ^^^ making it appear to the court, that the adverse party has had twenty days' notice of his intention, the court, seven jus- tices being present, shall hear the allegations of the petitioner; and, if sufficient reason be shown, shall order the sheriff to summon a jury of twelve freeholders, to view the premises, and lay off a cart-way not less than fourteen feet v.'ide, and assess the damages the owner of such Innd mny 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 ]icrsons, on foot or horseback, carts, and wagons. Proridcd, that, if the notice aforesaid shall not have been given, the court shall cause such petition lo be lilcd in the clerk's office until the next court, when they shall proceed to hear and determine the same. Maybe 38. Cart-ways, laid otf according to the preceding scctioH, conTuuicd,"^ ami "^^7 ^^ changed or discontinued upon application by any per- giites or imrs SOU Concerned, Under the same rules of pioceedinir as thev •rected, &c. I & J Chap. 101.] roads, ferries, and bridges. 541 may be first laid off, and upon such terms as to the court shall seem equitable and just. And any person, through 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 otherwise injure such gates or bars, he shall forfeit and pay, Penalty for for every such offence ten dollars, to the person erecting the '^^"r.'s^ V.'ui same or his assigns of the land ; and, if the offence shall be '• 34, 35, 37. maliciously done, he shall be deemed guilty of a misde- meanor. 39. Any person desirous to erect a gate across a public License to erect road, may file his petition in the court of pleas and quarter- hf^hmfj^'how sessions of the county where the road lies ; whereupon, publi- obtained.— r.^ cation shall be made at the courthouse until the next sue- '"' ' • • ceeding term, of such application, specifying the road, the place for the gate, and name of the petitioner: and all persons interested in the convenient travelling or transportation on said road, shall have leave to appear and defend, demur, or plead to said petition ; and if, at that court, it shall appear that such publication has been made, the court, a majority of the justices being present, may, at their discretion, authorize , the petitioner, at his cost, to erect a gate as prayed for. 40. The following persons shall be exempted from work- Who exempt ing on roads, namely : justices of the peace, constables, keep- o^nroad^-isfs ers of public grist-mills, wardens of the poor, patrollers, c. 46.— R. S. c'. teachers and pupils of schools, and lock keepers on the Dis- 1%\ i^is^R.' mal Swamp Canal. s. c.'eo; mij c. 36, 3. 31; 1838, 0. 50. Sect. 1. Mmj he established: ly vser, 1 Ire. 432, 6 lb. 369, Bus. 245; dedication, 4 Ire. 318, 11 lb. 647; notby mere appointment of overseer, 3 Ire. 168, 11 lb. 647. Sect. 2. Practice, 7 Ire. 365, 1 Car. L. R. 249; ichat petition must show, 3 Ire. 108; notice, 3 Hawks, 699; non-assessment of damages, 1 Ire. 432; what may be condemned, 2 D. & B. 451; irregular order, 2 D. & B. 547, 6 Ire. 162; appeal, 2 Ire. 168; costs on, 3 Hawlis, 312, 11 Ire. 9. Sect. 5. Form of petition, 2 D. & B. 647; should be granted, when. Bus. 387. Sect. 7. Who liable ashamls, 8 Ire. 436, 1 Jones, 133 ; how allotted, 2 Jones, 48 ; penaltv for not xcorUng, 11 Ire. 278. Sect. 10. iiotice necessary, 2 Car. L. R. 6a3. Liability of overseer, 1 Jones, 231. Sect. 14. Orerseer has no right to widen road, 11 Ire. 94. Sect. 17. What bridges, if-c, overseer to make, 6 Ire. Eq. 613. Sect. 21. Case of inability to repair, 11 Ire. 371. Sect. 24. State v. Yarrell, 2 Jones, 2 Hawks, 349. Sect. 26. 3 Ire. Eij. 613. Sect. 28. i Ire. Eq. 613. Sect. 38. 9 Ire. 15. 46 542 SALARIES AND FEES. [Chap. 102. CHAPTEE 102. SALARIES AND FEES. Sectiou 1. Salaries of governor, judges of su- preme court, secretary of State, treasurer, comptroller, private secre- tary, superintendent of common schools, clerks of treasury, when and how paid. 2. Of adjutant-general. 3. Of judges of superior courts. Addi- tional pay when circuit has more than twelve courts. i. Certificates of attendance to be pro- duced, or deductions made. Clerlts of certain courts forbidden to give certificates until i o'clock, r. M. of Thursday in term. 6. Salary of attorney-general, and solic- itors. 6. Of reporter of decisions of supreme court. He may print copies of his reports on his own account. May contract with clerk to furnish copies for distribution. 7. Pay of counsellors of State. 8. Of clerk, and door-keeper of council. 9. Of members of General Assembly. 10. Of clerks and officers of (ieneral As- sembly. 11. Pay of members and officers, how ascertained, certified, and paid. 12. Fees of governor's private secretary. 13. Of secretary of State. 14. Of attorney-general and solicitors for State. Fees in supreme court. 15. Of county solicitors. 16. Of attorneys at law. Attorneys for State in civil cases. 17. Clerks of county courts, on mesne process. On final process. For proving, recording, filing, searching, certifying, and entering on minutes. Section For copying. For bonds, licenses, notices, &o. IS. Of clerks of superior courts. 19. No fee on capias, in certain cases. 20. In certain State cases, clerks and sherifls to have only half fees. 21. Sheriffs' fees on mesne process, sub- poenas, orders, &c. On final pro- cess. For keeping and conveying criminals, maintaining slaves, &c. Sheriffs' commissions. Service of equity process. 22. No commission on justice's e.\eoution. 23. Clerks to keep a copy of their fees posted up in their offices. 24. May issue execution for fees in cer- tain cases. Bill of costs to bo an- nexed. 25. Salary and fees of clerk of supreme court. 26. Of clerk and master in equity. 27. Compensation of county trustees. 28. Fees of coroners. 29. Of constables. 30. Of registers. 31. County court m.iy fix register's fees within certain limits. 32. Of entry-taker. 33. Of county surveyors and chain car- riers. 34. Of rangers. 35. Of commissioners of afljdavits. 36. Of processioners. 37. Of standard-keepers. 38. Of jailers. 39. Of inspectors. 40. Of tobacco-pickers. 41. Of notaries. 42. Dates and figures, how reckoned in copy sheet. Salariesof gov- ernor, judges of supreme court, trcas'r, secretary of State, comp- troller, private secretary, su- perintendent of com'n schools, clerks of treas- 1. The officers hereinafter named shall annually receive the following salaries, that is : the governor of the State, three thousand dollars, and no other compensation whatsoever; each of the judges of the supreme court, two thousand five hundred dollars ; the secretary of State, besides his fees, eight hundred dollars; the public treasurer, two thousand dollars; the comptroller, one thousand dollars, and a fee of ten cents from the claimant, for each certificate made and delivered to Chap. 102.] salaries and fees. 543 the secretary of State of money paid on entered land; the When and how superintendent of common schools for the State, fifteen hun- P"''^' dred dollars, to be paid out of the literary fund ; the private secretary to the governor, three hundred dollars, besides his fees; and the clerk or clerks of the treasury department, seven hundred and fifty dollars: all which salaries shall be paid quarterly, that is, on the first days of April, July, October, and January in every year, by the public treasurer, on warrants drawn by the governor. 2. The adjutant-general of tjie State shall receive an an- Ofaajutint- nual salary of two hundred dollars, to be paid semiannually general. by the public treasurer, upon warrant from the governor. 8. The judges of the superior courts of law and courts of Of judges of equity, shall each have an annual salary, payable semian- '"''^'""'"''"''" nually, of one thousand nine hundred and fifty dollars, in full compensation for all judicial duties which are now, or may hereafter be assigned to them by the General Assembly; and for the holding of a special term of the superior court, the judge presiding shall receive ninety dollars, to be paid by the county in which the special term is held, on the production of the certificate of the clerk of the court aforesaid. Provided, Additional pay IioiveiW, that in all cases where a circuit of the superior te^nore7han courts shall exceed twelve weeks, the judges holding said twelve conru. courts at any regular term, shall be entitled to a compensa- tion of ninety dollars for the court of each county, exceeding twelve, held by them, to be paid by the public treasurer on the first days of January and July, in addition to the salary afore- said ; and each week in which a court shall be held shall be considered a term. 4. Every judge shall produce a certificate from the clerk of •Certificates of each county of his having held the court of the county accord- S" produced? ing to law; and for every such certificate omitted to be pro- "■■ deduction's duced, there shall be a deduction from his salary of one hun- ""'''*'■ dred dollars. Provided, however, that no certificate of attend- cierksofcer- ance shall be given by the clerks of the superior courts of {^j." '"'"'''s for- Northampton, Hyde, Davie, Currituck, Person, and Cleave- certificat^es^un- land, until four o'clock on Thursday evening of each week p' ;f, °^^:?^?,''' when the court shall be held; and the certificate shall be void day ■iifterm"'^^' if it do not certify that the presiding judge was present and held the court until that time, and until the business was dis- posed of; unless some unavoidable circumstance shall prevent the courts of said counties from being held at the prescribed time, and then the same shall also be certified in the certifi- cate. 5. The attorney-general, or the solicitor who may attend in Salary of attor- his place, shall receive one hundred dollars for each term of ™dtoLidtors. the supreme court which he shall attend ; and these officers ' shall receive, besides their prescribed fees, twenty dollars for each term of the superior court they shall attend, to be paid by the public treasurer, on a certificate of such attendance from the clerk of the court; and if they attend any court more 544 SALARIES AND FEES. [ChAP. 102. than one week, they .slmll receive twenty dollars more for the second week, to be paid in the same manner. Of reporter of Q_ The reporter of decisions of tiie supreme court shall re- decisions of • * .• r ,\ • i . ■» supreme court, cfive, as a compensation tor the services and reports required of him by law, a salary of six hundred dollars ; which shall be paid upon satisfactory evidence to the treasurer that he has had printed and distributed, within the prescribed time, the number of copies of the reports reserved for the use of the He may print State. Besides the copies aforesaid, the reporter, then or at copies of his ii_ i- 1 • J 1 . 1 . reports on his ^"Y Other time, may, on his own account, and at his own ex- own account, pense, print, publish, and vend as many additional copies as he may choose ; and shall also have the exclusive right to obtain, under the act of congress, the copy-right of the reports : May contract and if the reporter should prefer to do the work himself of foniishrapies printing and distributing for the State the copies directed to for distribu- be distributed, he may do so upon such terms as the clerk of the supreme court at Raleigh shall deem reasonable, and may contract with the clerk on behalf of the State for that purpose. Payofcoun- 7. A counsellor of State shall receive three dollars per day seliors of State. j-Qj. g^g^y j^y he may attend on public business; and three dollars for every thirty miles' travelling to and from the city of Raleigh on public business. • Of clerk and 8. The clerk of the council shall receive two dollars, and the councii.'''^'^ °'^ door-keeper eighty cents, for each day such persons may be employed in attending on the council of State. Of members of 9. The speakers of the senate and of the house of com- sembly!'^' mons of the General Assembly, shall each be entitled to re- ceive four dollars, for every day they shall attend the senate or house of commons ; and each senator and member of the house of commons, three dollars for every day he shall attend the senate or house of commons; and the speaker and every member of the senate and house of commons shall also be allowed his necessary ferriage, and three dollars for every thirty miles of the estimated distance of going and returning, by the most usual road, from his place of residence to the seat of government. And in case the speaker, or any member of the senate or house of commons shall be detained by sickness on his journey to or from any session ; or, after his arrival, shall be unable to attend the senate or house of commons, he shall be entitled, as if he had attended regularly in his place. ^ffiMrs'^ofo'en- ^^' '^^^^^ ^'^^^' ^^ allowed, as a compensation for their erni Assembly, daily attendance and services, to the clerks and officers of the senate and house of commons of the General Assembly, at every session, the following sums: to each principal and as- sistant clerk, six dollars ; to each engi-ossing clerk, four dol- lars; to each door-keeper, three dollars; and there shall be allowed to each of the principal clerks of both houses, sixty dollars, as a full compensation for transcribing the journals of each house for the i)ublic printer, and for taking care of the books, papers, and eflccts of each house, and all other inciden- tal services attached to their offices ; and the principal clerks. Chap. 102.] salaries and fees. 546 assistant clerks, and door-keepers of both houses, and also the engrossing clerks, shall each be allowed three dollars for every thirty miles of the estimated distance, in going and return- ing lay the most usual road, from the seat of government to his place of residence, and also their ferriages. 11. The compensation of the members and officers of the ^ay of mem- senate shall be ascertained by the principal clerk, and certified cers, how"as- by the speaker thereof; and that of the members and officers certnined, cer- of the house of commons and the engrossing clerks, shall be ' " '"" P'" • ascertained by the principal clerk of the house of commons, and certified by the speaker thereof; and the sums so certified shall be passed as public accounts, and paid by the treasurer. 12. The private secretary of the governor shall be allowed Fees of govern- the following fees, and no other, to be paid by the persons for ™j*.J't",yf'* whom the services are rendered, namely : for the commission of a judge, four dollars ; of the attorney-general, two dollars; of a solicitor, two dollars ; of a senator in congress, two dol- lars ; of a representative in congress, two dollars ; of a notary- public, two dollars ; for any commission for a place of profit, two dollars ; for a testimonial, one dollar; for suspension of a grant, seventy-five cents ; for affixing the seal to a grant, twen- ty-five cents. VS. The secretary of State shall be allowed, besides his Of secretary of salary, the following compensation and fees, namely : for fur- ''''®' nishing the public printer with copies of the laws, two dollars for each law, and fifty cents for each resolution, to be paid by the public treasurer, upon the warrant of the governor; copy- ing and certifying a will not exceeding two copy sheets, fifty cents, and for every additional copy sheet, ten cents ; correct- ing an error, not made by himself, in a patent, fifty cents ; copying and certifying the record of a grant or patent, contain- ing not more than six hundred and forty acres, fifty cents ; copying and certifying a grant, or patent, or plot and survey, containing more than six hundred and forty acres, fifty cents for each warrant contained in such grant, patent, or plot, not to exceed five dollars for one copy ; receiving surveyor's return, making out, recording, and indorsing gi-ant, sixty cents ; each search, ten cents; each certificate, ten cents; recording deeds or other evidences of title, for land purchased for the use of the State, the same fees that registers are entitled to for deeds or like services ; filing and recording a copy of the judg- ment vacating a grant, and all other services thereon, fifty cents ; copying an entry from the journals of the Assembly, forty cents; copying and certifying the laws of other States, twenty cents for each copy sheet, — to be paid by the treasurer for all copies furnished for the use of the State, and by indi- viduals for copies furnished for their own use ; receiving articles of agreement, and filing and recording letters patent, one dol- lar : and in all cases not provided for above, the secretary of State shall receive the same fees for copies of records from his office, that are allowed by law to registers. 46* 546 Of attorney- general and so- iic'rs for State, In supreme court. Of county so- licitors. Of attorneys at law. SALARIES AND FEES. [ChAP. 102. 14. The attorney-general and solicitors for the State shall, in addition to the general compensation allowed them by the State, receive the following fees, and no other, namely: for every indictment which they may prosecute for a felony, per- jury, forgery, counterfeiting, passing, or attempting to pass or sell, any forged or counterfeited paper or evidence of debt ; maliciously injuring or attempting to injure any railroad, or railroad car, or any person travelling on such railroad ; stealing or obliterating records ; stealing, concealing, destroying, or ob- literating any will ; maliciously burning or attempting to burn houses or bridges ; misdemeanors of accessories after the fact to felonies ; and for circulating seditious writings among slaves and free negroes, and for persuading them to conspiracy and rebellion, each of them shall receive ten dollars upon convic- tion of the defendant, to be paid by him : for every indictment for frauds, deceits, maim, and escapes, five dollars ; and for all other offences, four dollars, to be paid as aforesaid, and in no other manner whatever, except in cases where the court shall be of opinion that the prosecution is frivolous and malicious, and may order the prosecutor to pay the costs, including a tax fee. Provided, nevertheless, that no larger fee than tendollars shall be taxed for the attorney-general or solicitor, in any in- dictment against the justices of the peace of any county, as justices, when there are more than three justices who arc found guilty : and in all appeals to the supreme court, of persons convicted of criminal offences, a fee of ten dollars against each person who shall not reverse the judgment, shall be allowed the attorney-general, to be taxed among the costs of that court. 15. The county solicitor shall not be entitled to receive fees in any case, but on conviction of the defendant ; and then he shall receive four dollars for each defendant convicted, to be paid by the defendant, and in no other way whatever, except in cases adjudged to be frivolous and malicious, when the court may tax a fee, to be paid as provided in the preceding section. 16. Fees to be taxed for attorneys or parties in suits in the supreme and other courts, shall be as follows, namely : in a suit in equity, twenty dollars; in a suit at law in the supreme court, ten dollars; in a suit in any of the superior or county courts, where the title of land may come in question, ten dol- lars ; in all other suits, originally commenced in the superior or county courts, four dollars ; in appeals from any other court to the superior, the same fee as in the court below; in every appeal from a judgment of a justice of the peace to the supe- rior court, four dollars, and to the county court, two dollars ; in a petition for dower, where the suit may be brought at law, four dollars ; and no fee; shall be taxed on any order for sale of lands levied on under an execution issued by a justice of the peace, unless where the same may be opposed: nor in eases where a bond shall be taken and returned under the law for Chap. 102.] salaries and fees. 547 the relief of insolvent debtors, unless where an is.sue shall be made np; nor shall any fee be taxed in the case of a petition to rehear any decree made either at law or in equity, which may be filed before the actual enrolment of the final de- cree in the cause ; and such fees shall be taxed for counsel. Attorneys for appearing for the State in civil cases, to be paid by the defend- f^'^H '" ""'^ ant on the rendition of judgment against him, as are taxed in like cases, when the suit is between citizens. 17. The clerks of the courts of pleas and quarter-sessions cicrks of coun- shall receive the following fees, and no other, namely: for Ji;'^™""'^""^^^ every leading process returned to the first court, including all services, together with dismission or final judgment, where either happens at the return court, one dollar; every indict- ment, sixty cents; each recognizance, twenty cents; every reference or continuance of a cause, thirty cents ; every judg- ment entered after the return court, seventy-five cents; every sul:ipa'na, provided the party inserts no more than four wit- nesses in the same, fifteen cents; every commission to take testimony, twenty-five cents ; every special verdict, or demur- rer or motion in arrest of judgment, thirty cents; every writ of error or appeal, with the transcript of record, two dollars ; taking and recording prosecution bond, forty cents; every sub- poena, issuing on a petition, fifty cents; eve'ry writ, other than leading process, or subpoena for witnesses, seventy-five cents ; docketing appeals, and entry of plea or default in the same, one dollar ; trial of issue on insolvent's schedule or bond, sev- enty cents ; every scire facias, sixty cents ; docketing consta- ble's levies, including all services in court, one dollar; and it is provided that the creditors, at whose instance any issue with insolvents shall be made up, shall pay costs whenever they shall fail, as in other cases. For every execution or order of sale, thirty-five cents. Final process. For proving and recording at length, in bound books kept For pro-ring, for that purpose, and filing an inventory, account of sales, or ':<'™''J'"g. , , , 1 -L'i 1 1 . , . . ' riline, search- account current, exhibited by an executor, administrator, or in^, certifying, guardian, or for search and certificate of the amount thereof, •'";'' ™"="°e on if the estate be under two hundred dollars, the clerk shall re- ™'°" '^*' ceive twenty cents; if above two hundred and under one thousand dollars, forty cents ; if above one thousand, seventy- five cents and no more : for entering on the minutes the pro- bate of any will, qualifying executors, making certificate, and recording the will in a bound book kept for that purpose, one dollar. Provided, hoioever, that when any such inventory, ac- count, or will shall exceed five copy sheets, the clerk shall receive ten cents for each additional sheet. For every search of record out of court, ten cents; proving or entering the ac- knowledgment of a conveyance of land, or other estate, and certifying the same with order of registration, and examina- tion of a feme eoverl without commission, twenty cents ; for every commission to examine a. feme covert, twenty-five cents; proving or taking acknowledgment of a deed or power of at- 548 SALARIES AND FEES. [ChAP. 102. toriiey, and certifying the same, including order of registration, twenty cents; every certificate for witnesses' or jurors' attend- ance, ten cents ; alfixing tiie seal of oflke, and writing the necessary certificate, on any instrument requiring the same, twenty-five cents; every certificate, without the seal of office, when the sanne is not otherwise directed to be paid, twenty cents ; recording a mark or brand, and giving a certificate thereof, ten cents ; issuing a warrant, on entry of land, by order of the court, forty cents ; enrolling divisions of estates, for each lot, twenty cents; every certificate of inn, ordinary, or tavern license and bond, with a copy of rates, one dollar; recording processioner's certificate, twenty cents ; every search of entry- taker's books, ten cents ; filing insolvent's schedule, bond, and all other services in court thereupon without trial by jury, one dollar; recording the decree of the court upon a petition for the legitimation of a bastard child, one dollar; for each description of a slave or free negro and certificate thereof, fifty cents. For copying. For every copy of a record, not exceeding five copy sheets, ten cents for each copy sheet of ninety words, and five cents for each copy sheet after five. Provided, that the total amount of fees, charged for any one record, or will, shall not exceed five dollars ; every order or rule, foreign to the cause, with a copy of the same, if required, twenty cents ; every copy of a peti- tion, by the copy sheet, ten cents ; every copy of location from entry-taker's books, ten cents ; for declaration of a foreigner, wishing naturalization, copy and seal, one dollar and fifty cents ; final entry of order of naturalization, copy of the same and seal, one dollar and fifty cents. For bonds, li- For every marriage license and bond, seventy-five cents; censes, notices, every guardian and other bond taken in court, for which no other special fee is allowed, sixty cents ; granting administra- tion, taking bond, and other services thereon, eighty cents; every indenture for binding apprentices, sixty cents; taking an account, such sum as the court may allow not exceeding fifty dollars ; every order of court authorizing license to retail- ers, eighty cents; issuing license to hawk or peddle, eighty cents ; correcting or certifying an error in a patent, forty cents ; every guardian's notice for renewal of bonds, return, or settle- ment of accounts, sixty cents. Of clerks of su- 18. The clerks of the superior courts of law shall receive periorcoui . ^^^ filing a transcript of appeal to the supreme court, two dol- lars ; and for all other services, shall receive the same fees as are allowed the clerks of the county courts, and no other. No fee on capi- 19. No clerk of the county or suiierior court sliall charge a ^^<:- 550 SALARIES AND FEES. [Chap. 102- county court; conveying any criminal or other person under arrest, to that jail where he ought to be conveyed, ten cents per mile, and five cents for each person composing the guard. Prodded, the number shall not exceed four persons, and if more than four shall be absolutely necessary, two cents per mile for each of said guard; for each day the sheriff' shall maintain such prisoner, he shall receive fifty cents, the expense to be paid by tlie proper county, if the prisoner shall not be liable or able to pay the same. For all moneys, collected by him by virtue of any levy, or executing a writ of distress, or an execution against the body, two and a half per centum; and the like commission for all moneys that may be paid to the plaintiff by the defendant, while such precept is in the hands of the sheriff and after levy or executing the distress or execution against the body. For service of equity process, and sales and orders inci- dental thereto, the same fees as for the like service at law. 22. No sheritT shall take a commission on any moneys col- lected on an execution issued by a justice of the peace ; nor any other fees, unless they be allowed by law. 23. The clerks of superior and county courts shall keep a fees"''po°tefup copy of this chapter, in relation to the fees of clerks and in their offices, sheriffs, posted up in their respective offices, and in the court house, in some conspicuous place, during the sitting of each court, under a penalty of fifty dollars. 24. The clerks of the supreme, superior, and county courts, where suits are determined and the fees are not paid by the party from whom they are due, shall sue out executions, directed to the sheriff of any county in the State, who shall levy them as in other cases ; and to the said execution shall Bill of costs to be annexed a bill of costs, written in words, so as plainly to show each item of costs, and on what account it is ta.xed ; and all executions for costs, issuing without such a bill an- nexed, shall be deemed irregular, and may be set aside as to the costs, at the return term, at the instance of him against whom it is issued. Salary .and 25. The clerjc of the supreme court shall receive an annual lupreme'cour"! ^^'^'T of three hundred dollars, to be paid semiannually, on a certificate of the judges ; and, in addition thereto, the follow- ing fees, namely : for recording the papers and proceedings in the causes decided in the supreme court, which arc required by law to be recorded, such compensation as may be esti- mated by the judges of the court at each term, not to exceed thirty cents for each page recorded, to be paid by the treasurer, on the certificate of the judges; for entering an appeal, or re- moval of a cause, one dollar ; and the same fees as are allowed to clerks and masters in equity for similar services, in all matters relating to causes in equity; for entering an appeal in a case at law, one dollar; a continuance, thirty cents; Si scire /fflda.?, eighty cents; a certiorari, eighty cents; for a determi- nation, two dollars; a certificate, sixty cents; a. fieri facias, or Sheriff's com missions. Service of equi ty process. No commis- sions on jus- tice's exeeu- tion. Clerics to Iceep May issue ex- ecution for fees in certain Chap. 102.] salaries and fees. 551 other execution, fifty cents ; a seal, twenty-five cents ; and for a transcript, or copy of a record, twenty cents for each copy sheet. 26. The clerk and master in equity shall receive the follow- or clerk anJ ing fees, and no other, namely : for a report on an answer, thirty ^^f^'^'' '" cents ; report on a plea and answer, forty cents ; report on a ' ^' demurrer and answer, forty cents ; an affidavit to an answer, fifteen cents; an affidavit to a bill, fifteen cents; a separate affidavit, twenty cents ; copying a report by the office copy sheet, twenty cents ; a report stating an account to be allowed by the court, a sum not to exceed fifty dollars; copies of pro- ceedings and exemplification, by the copy sheet, twenty cents ; taking a bond, fifteen cents ; a rule given for service, twenty- five cents ; a rule not for service, fifteen cents ; a subpcena, writ, or other process, one dollar ; a commission, fifty cents ; an injunction, one dollar; drawing a decree, by the copy sheet, forty cents; enrolling a bill or answer, by the copy sheet, twenty cents; entering a plea or demurrer, twenty cents; recording depositions to perpetuate testimony, by the copy sheet, twenty cents ; a dismission, twenty cents ; a search, ten cents; taking security on a leading process, twenty cents; recording each bond, twenty cents; for affixing the seal to any writing requiring it, twenty-five cents; for transcript to the supreme court, two dollars ; for taking depositions in equity, to such fees as may be allowed by the court to which the commission is returnable, to be taxed as other costs. 27. The county trustee shall receive, as a compensation in Compensation full for all services required of him by law, such a per centum, °J^e™"°'^' ''""'" not exceeding six, upon the amount of his receipts and dis- bursements, as the county court, a majority of the justices being present, shall deem adequate and proper. 28. The coroner shall receive the following fees, and no Fees of coro- other, namely: for attending on an inquest, five dollars, and "^"• twenty cents for every juror summoned to attend the inquest, to be paid by the county ; for decently interring the body of any white man, or free person of color, over whom he has held an inquest, such sum, not exceeding ten dollars, as the county court, seven justices being present, may order, to be paid by the county, if the friends of the deceased shall refuse or neglect to inter the body; which sum shall be charged against the estate of the deceased, and the county trustee may recover it by a warrant; for decently intemng the body of any slave, over whom he has held an inquest, the same sum, to be allowed and paid in like manner, if the master or owner shall refuse or neglect to inter the body ; which sum the master or owner shall pay back to the county trustee, who may warrant for the sanie : for discharging the duties of sheriff, in the cases pre- scribed by law, the same fees as the sheriff would be entitled to for performing the like services. 29. A constable shall receive the following and no other Of constabica. fees, namely : for every day's attendance on court, wlien sum- 552 SALARIES AND FEES. [ChAP. 102- moned, one dollar and fifty cents ; whipping a slave, by order of any justice of the peace, thirty cents ; serving a warrant, for each person named tlierein, forty cents ; summoning a witness, twenty cents ; an execution levied, forty cents ; an attach- ment levied, fifty cents; a bail-bond, twenty-five cents; serv- ing notice on bail, forty cents; serving a notice, that may be required by law to be given for commencing or prosecut- ing any cause before a justice of the peace out of court, thirty cents. Of registers. gg ^ register shall receive the following fees, and no other, namely: for registering each deed or grant, containing one ti'act of land, including the certificate, not less than forty, nor more than one hundred cents; if the deed contain two or more tracts, not less than forty, nor more than one hundred cents for the first tract, and not less than ten, nor more than twenty cents for every other, and the like fees for copies ; for registering the acknowledgment and certificate of a. feme covert, in the conveyance of lands or other estate, an additional fee of twenty-five cents, and the like fees for copies ; for register- ing divisions of lands, for each lot or dividend therein described not less than ten cents, nor more than twenty cents, and the same fees for copies ; for registering copies of rectified errors in patents or grants, not less than forty, nor more than one hun- dred cents ; registering decrees of court, operating as deeds, one dollar; registering all other instruments of writing, for each instrument, not less than forty, nor more than one hun- dred cents ; for a search, ten cents. County court 31. Any county court, (a majority of the justices being pres- te?3 fees wUhin ^"t>) ^^Y establish and regulate the fees of the register of the eertain limits, county, within the limits prescribed in the preceding section ; and when the fees are so established, they shall not be altered by the court within one year. And if the county court shall not establish the fees, as aforesaid, then the fees of the register shall be at the minimum rates prescribed. Of entry-taker. 32. Entry-takers shall receive the following fees, and no other, namely : for an entry, including all services, forty cents ; issuing each duplicate warrant, when thereto required, twenty- five cents. Ofcotinty ser- 33. Surveyors appointed by courts to survey any lands, the ehaia'carriers. boundaries of which may come in question in any suit or pro- ceeding depending therein, or called upon by the commission- ers to assist in surveying and dividing the lands of intestates or others, held in common, shall receive the following fees, and no other, namely : for every survey on an entry containing three hundred acres, or less, one dollar and sixty cents; and for every hundred more than that quantity, forty cents ; for surveying lands in dispute, by order of court, travelling to and from the place, and performing the duty, two dollars per day, or such greater sum as tlic court may allow ; for assisting in the surveying and dividing the lands of intestates, or others, held in common, when called upon by the commissioners ap- Chap. 102.] salaries and fees. 553 pointed to make partition, or it) laying off dower, travelling to and from the place, and performing the duty, two dollars per day. In all surveys made by order of the court, the chain car- riers shall be allowed such compensation as the court may de- termine, not exceeding one dollar each per day ; and in mat- ters of disputed boundary, which may come in question in any suit, the court may make to the surveyor such allowance for plots as it may deem reasonable, which, with the allowance to chain-carriers, shall be taxed as costs. 34. Rangers shall receive the following fees, and no other, Of rangers. namely: for entering each horse, mare, gelding, colt, mule, ass, or jenny, including the certificate, fifty cents ; for entering each head of neat cattle, twenty-five cents ; for entering each head of hogs or sheep, ten cents ; for a bond, twenty cents ; for ad- vertising such strays as are required to be advertised, one dol- lar and fifty cents ; for a search, ten cents. 35. Commissioners of affidavits, and those who are author- ofoommissioiv- ized bylaw to act as such, shall receive the following fees, «>-^°f''ffidavits. and no other, namely : for an affidavit taken and certified, forty cents ; affixing the seal of court, when necessary, twenty-five cents. 36. Processioners shall receive the same fees which are al- Of procession- lowed by law to county surveyors. 37. Standard-keepers shall be entitled to receive the follow- Ofstandard- ing fees, and no other, namely: for examining and adjusting a ^"P^"'^- pair of steelyards, twenty-five cents ; every weight of half a pound and upwards, five cents ; every set of weights below half a pound, including one piece of each denomination, five cents ; for a yard-stick, or other measure of cloth, five cents ; every bushel, half bushel, peck, or other measure used in meas- uring grain, meal, or salt, ten cents ; each measure for liquors or wines, three cents. 38. Jailers shall receive, for finding prisoner fuel, one pound Of jailers. of wholesome bread, one pound of good roasted or boiled flesh, and a sulTicient quantity of water, with every necessary at- tendance, thirty cents per day, and no more ; unless the court of pleas and quarter-sessions, a majority of the justices being present, shall deem it expedient to increase his fees, which they may do, provided such increase does not exceed fifty per cent, on the above sum, which shall be recorded, and shall not be altered within one year thereafter. 39. Inspectors shall receive the following fees, for the duties Of inspectors. required of them, and no other, namely : for inspecting ton tim- ber, twenty cents per thousand feet; inspecting, turning up, coopering, finding nails, hoops, and issuing a note for every hogshead of tobacco, seventy cents ; inspecting transfer to- bacco, at the rate of five cents per hundred pounds ; inspecting a barrel of flour, five cents ; a barrel of pork or beef, ten cents ; a barrel of rice or butter, six and a fourth cents ; a barrel of fish, three cents; each barrel of tar, pitch, or turpentine, two and £1 half cents, to be paid by the purchaser ; every thousand 47 554 SEAT OF GOVERNJIENT. [ChAP. 103. Of tobacco pickers. Fees of no- taries. — R. S. c. 78, s. 3.— 1846, c. 69. Dates and fig ures, how reclioned in copy slieet. shingles, two and a half cents ; every thousand feet of boards, plank, or scantling, thirty cents ; every barrel of flax-seed con- taining seven and a half bushels, ten cents. 40. Tobacco-pickers, for every one hundred pounds picked and prized, shall receive the fifteenth part. 41. Notaries proper, and other persons acting as such, shall be allowed one dollar for all services on a protest for non-ac- ceptance, or for non-payment, or for both when done at the same time, of any order, draft, note, bond, or bill, or any other thing necessary to be protested. For other necessary services, where no fee is fixed, they shall be allowed twenty cents for every ninety words. Provided, however, that cases of protest concerning vessels or their cargoes shall not be affected by this chapter. 42. In reckoning the number of words in a copy sheet, every date, or amount of money, expressed in figures, as 18.55, $250.90, shall be estimated and charged as one word. Sect. 21. Sheriff's commissions, 3 D. & B. 73, i Hawks, 1 ; n-lio entitled to, 3 Dev. 38. Sect, 26. Subposnas for witnesses, 7 Ire. Eq. 33. County attorney, on scire facias, vs guardian, 3 Hawks, 238. CHAPTER 103. SEAT OF GOVERNMENT. Section- 1. City of Raleigh to be seat of govern- ment. 3. Governor and others, a board to take charge of public buildings and lots. May sue for injuries thereto. S. Shall furnish offices, and appoint a keeper of capitol. Duty and pay of keeper. Board to secure capitol froiQ fire. Section 4. Rooms not to be used as sleeping apartments. Keeper to keep keys. 5. Appropriation of rooms. 6. Keeper to give bond. 7. Disorderly conduct in capitol prohib- ited. Penalty. 8. Penalties against infants, paid by pa- rent or guardian. City of Raleigh to be seat of government. — R.S.c.l07,s.l. Governor and others, a board to talce charge of public build- ings and lots. May sue for in- juries thereto. — R.S.c.l07,s. 2. — 1840, c. 3. 1. The city of Raleigh shall be deemed and considered the permanent and unalterable seat of government of the State ; the place for holding the meetings of the General Assembly, and the place of residence of the chief officers of the State. 2. The governor, secretary of State, treasurer, and comp- troller, are hereby constituted a board to take charge of, and keep in repair, the buildings belonging to the State, in the city of Raleigh, and shall have charge of the public lots belonging to the State ; and in the name of the State may institute an action on the case, or trespass, for damages done to the said buildings or lots ; and may also, in the name of the State, as Chap. 103.] seat of government. 555 lessor, institute actions of ejectment to remove persons from the possession of any of the lots. 3. The board shall take charge of and keep in repair the Shall furnish public buildings of the State in the city of Raleigh; shall, "ffij'^f^^'^^p^P- from time to time, as the same may be needed, procure, fur- of capitoi. nish, and keep in repair, for the public offices of the capitoi, all necessary office furniture, and shall appoint some suitable and discreet person, removable at the will of a majority of them, who shall take charge of the capitoi square ; take care of the furniture, sweep and cleanse off cobwebs and dust from all the unoccupied parts of the buildings : keep the keys of the several doors not occupied as offices, and conduct visitors through the capitoi, whenever requested to do so : shall, under Duty and pay the direction of the board, trim or remove trees standing in °f ''«'=?"• the public square, and remove the leaves and other rubbish as often as may be necessary ; and shall perform any other duty required by this chapter, of which he is capable, whenever es- pecially ordered by the board so to do. For which services the keeper shall receive a reasonable and just price ; which, as well as all other expenditures allowed by this chapter, shall be paid by the treasurer, on a certificate by the board, of the work go^^d to secure done and the price allowed for it. The board at all times capitoi from are required to use such means as may secure the capitoi from 8'"3;7.^i84.^''j. fire. _ 47, s. i. 4. The rooms in the capitoi shall not be used as sleeping Rooms not to be apartments, and no bed shall be kept in any room save only "ngap'artments.. that used by the keeper ; and he shall remove all beds and Keepe^to keep' sleeping couches, which may be introduced by any person into ^'^i?! s. i. "' any of the rooms ; and shall take charge of and keep all the keys of the rooms, except only such as are used by the heads of the departments ; and of them for such time as they are not so used. 5. The rooms of the capitoi, other than the senate chamber Appropriation and house of commons, shall be appropriated as follows : — cap?toi!— ° 842, The two west rooms of the southern division of the capitoi c. 54. shall be appropriated to the executive ; the south-east room in the southern division shall be appropriated to the comp- troller, and the room adjoining it to the public treasurer; the two east rooms in the northern division shall be appropriated to the supreme court, and the two rooms opposite, to the sec- retary of State ; the upper room in the east wing to the State library ; and the room number three, in the west wing, shall be appropriated and set apart as a permanent bureau of engi- neering. 6. Before entering upon the duties of his office, the keeper '^^'^l'"^^^''^ of the capitoi shall execute bond with good security, in the ^^^ g, 2. ' sum of two hundred and fifty dollars, payable to the State of North Carolina, and conditioned for the faithful discharge of his duties : the bond shall be deposited in the office of secre- tary of State, and be renewed every two years under the care of the board ; and shall be put in suit, whenever in their judg- 556 SECRETARy OF STATE. [ClIAP. 104. Disorderly con- iluct in capitol prohibited. Penaltv. — E. S. c. i07, s. 4 — 1642,0.47, s. 1. Penalties against infants paid by parent or guardian. — R.S.c. 107,8.5. mcnt, the conditions thereof, or any of them, may have been broken ; and the same shall not be discharged, until the whole penalty is exhausted in damages. 7. All rude and riotous noises and disorderly conduct in the capitol are forbidden, under a penalty of five dollars ; and any person who shall write or scribble on the walls of the capitol, or mark, deface, or besmear them, or shall do or commit any nuisance in the capitol building or any part thereof or near thereto, shall pay a like penalty, to be recovered for the use of the State, Isefore the intendant of police, or any justice of the peace for Wake county : and the said keeper shall arrest such as are guilty of violating the provisions of this section, and carry them immediately before said intendant, or justice, and prosecute the offender for the penalty. 8. If such offence be committed by an infant under the age of twenty-one years, his guardian or parent, (as the case may be,) shall also be liable to the penalty prescribed by this chap- ter, to be recovered as above directed. CHAPTER 104. SECRETARY OF STATE. Section 1. Secretary to give bond. 2. Form of, deposited in treasurer's office. To take oaths. 3. To take receipts for grants. May send grants by mail. 4. Office hours. Secretary of State to "give bond. Form of.— R. S. c. 108, s. 1 ; Const., Art. 1, 3. 7. Deposited in treasurer's office. To take oatlis. — B. S. c. 108. Section 5. Allowance for services in public print- ing, and postages. 6. To purchase stationery, fuel, &c., for public offices. 7. His accounts for expenses, how allow- ed and paid. 1. The governor shall take from every person appointed secretary of State, before he enters upon the discharge of the duties of his ofHce, a bond with sufficient security, payable to the State of North Carolina, in the following form, namely: Know all men by these presents, that we, A. B. and C, are held and firmly bound unto the State of North Carolina in the sum of twenty thousand dollars ; to the payment of which we bind ourselves firmly by these presents, sealed with our seals, and dated the day of . The condition of the above obligation is such, that whereas the above bounden A. is appointed secretary of State for the State of North Carolina; if therefore the said A. shall well and truly execute and discharge the duty of secretary of State in all cases, agreeable to law, then the above obligation to be void; otherwise, to remain in full force and effect. 2. The bond of the secretary shall be deposited in the treas- urer's office for safe-keeping; and he shall take the oaths pre- scribed for public officers, and also the oath of office. Chap. 105.] sheriffs. 557 3 The secretary shall keep a receipt book, in which he shall To tak .. , , , J, 1 -tr i-i ii £ J. ■ r ii court, in eiicn process dn-ected to the sheriff, untff the first session ot the case.— R. s. c. county court next succeeding such vacancy ; when the court, lo^i s- n- a majority of the justices being present, shall elect a sheriff to supply the vacancy for the residue of the term, who shall pos- sess the same qualifications, enter into the same bonds, and be subject to removal, as the sheriff regularly elected ; and should the court fail to fill such vacancy, the coroner shall con- tinue to discharge the duties of sheriff' until it shall be filled. 12. Any coroner called to discharge the duties of sheriff, ^^f ^'/^ f^'^^ shall, before he enters thereon, in the court, or at the county oaths, when court clerk's office, five or more justices being present, take ^jj^'^'^'^.^ ='<="» the same oaths, and enter into the same bonds, that may be i:. s. c.ioo, s. 560 SHERIFFS. [Chap. 105. required of sheriffs : 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. What bonds 13. The sheriff shall execute three several bonds, each in the andthekloiidi' '''"™ °^ ^'^" thousand dollars, payable to the State of North tions. Carolina, and conditioned as follows : one, conditioned for the collection, payment, and settlement of the county and poor taxes, as required by law ; one, for the collection, payment, and settlement of the 'public taxes, as required by law ; and a third, conditioned as follows: — Form of bond The condition of the above obligation is such, that whereas ^7 "i^^ess'^Sc ^^^ above bounden is elected and appointed sheriff of — R. S. c''i09,' 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 the tenor thereof, ought to be paid, or to the person or persons to whom the same shall be due, his, her, or their executors, administrators, attorneys, or agents, and in all other things well, truly, and faithfully execute the said office of sheriff, during his continu- ance therein, then the above obligation to be void ; otherwise to remain in full force and effect: which said bonds, every county court, a majority, or twelve of the justices being pres- ent, shall demand and take, and cause to be acknowledged before them in open court, and recorded. Sureties liable 14. The sureties to a sheriff's bond shall be liable for all g''|"®^'j5^''~ fines and amercements, imposed on him, in the same manner 15. ' as they are liable for other defaults in his official duty. May resign to 15. Every sheriff may vacate his office by resigning the S?«™i09 7ii6. same to the court of pleas and quarter-sessions of his county, a majority of the justices being present and accepting such resignation; and thereupon the court may proceed to elect another sheriff. Sheriffs, &c., of 16. The sheriffs, constables, and other officers of Hyde and Car'teret mnv Carteret counties, shall have power to execute process upon serve process any pcrsou, on board any vessel lying in the waters between betwIen^oL- Ocracock island in Hyde county, and the island of Ports- cockandPorts- mouth in Carteret county ; and for every process so executed, Tm"'"""^^**' ^^'^ sheriff shall receive" a fee of three dollars, and the con- stable, for like service, two dollars. Sheriff to exe- 17. Every sheriff, by himself or his lawful deputies, shall frmri'coSrts!'''' 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 Penalty for ne- execute the same, and make due return thereof, under the pen- gicct, sioo. alty of forfeiting one hundred dollars for each neglect, where such process shall hv. delivered to him twenty days before the sitting of the court to which the same is returnaiile ; to be paid to the party aggrieved by order of the court, upon motion and Chap. 105.] sheriffs. 561 proof of such delivery, unless such sheriff can show sufRcient cause to the court, at the next succeeding term after the order: and, for every false return, the sheriff shall forfeit and pay five F°';/^*^^™Jljj_ hundred dollars, one moiety thereof to the party grieved, and s. c' 109, s. 18. the other to him that will sue for the same; and moreover be further liable to the action of the party grieved, for dam- ^^18. Every sheriff shall, when requested, pass his receipt for To give .-e^ceipt all original and mesne process placed in his hands for execu- ,,.|,-,(.h sha.\\ be tion, tl the party suing out the same, his agent, or attorney ; evidence, &e. and such receipt shall be admissible as evidence of the facts therein stated, against the sheriff and his sureties, in any suit, between the party taking the receipt, and the sheriff and his sureties. , . „ 19. The sheriff, or his deputy, shall take no obligation, of or T°f^ke^^°^obij- from any person in his custody, for or concerning any matter Custody, but as or thing relating to his office, otherwise payable than to him- P^y^^i^^^eriff""' self as sheriff, and dischargeable upon the prisoner's appear- ^^Z ance and rendering himself at the day 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 prisoner, or such person keeping within the limits and rules of any prison ; and every other obligation taken by any sheriff 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 Kor ""^"^gf"^ sheriff shall demand, exact, take, or receive any greater fee or ^^^'^^ ^g, ' reward whatsoever, nor shall have any allowance, reward, or satisfaction from the public, for any service by him done, other than such sum as the county court shall allow for ex officio services, and the allowance given and provided by law. 20. When any sheriff shall take, or receive and have in Permittmges- keeping, the body of any debtor in execution, or upon attach- execution.Ma- ment for not performing a decree in equity for the payment of We^j"j>eto of any sum of money, and shall wilfully or negligently suffer jog3_ ^o. such debtor to escape, the person suing out such execution or attachment, his executors, or administrators, shall have and maintain an action of debt against such sheriff, and in case of his death, against his executors or administrators, for the re- covery of all such sums of money, as are mentioned in the said execution or attachment, and damages for detaining the same. 21. No sheriff shall let to farm in any manner, his county, J^j^'^^^jf^g'';." or any part of it, under pain of forfeiting five hundred dollars ; "J^% .21V one half to the use of the county, and the other half to the person suing for the same. 22. The sheriff shall have the care and custody of the pub- To ha^•e^custo- lic jail in his county ; and shall be, or appoint the keeper thereof. 23. When a claim, within the jurisdiction of a justice of the J^'^i^'i'^'g^;'.'^; peace, shall be placed in the hands of any sheriff, or his dep- _k.'s. c. 109, 562 SHERIFFS. [Chap. 105. uty, for collection, he shall diligently endeavor to collect the same. To furnish 24. The sheriff' shall lay before the grand-jury of his county, ^Uhanlfof ^t each court, as soon as the grand-jury shall be assembled, a retailers of list of all persons who may have obtained license to retail quors"""^ '' spirituous liquors by the small measure, within two years pre- Penaltyfor vious to Said court ; which list, the foreman of the grand-jury, s'"c!^34°sT82. ^t the close of its session, shall deliver to the clerk far safe- — 1860, c. 185. keeping; and any sheriff failing to perform the duty aforesaid, shall forfeit and pay to tlie State ten dollars, to be recovered by the prosecuting officer, in the same manner as the penalties against sheriff's for not returning process. i?F"sSj^ct^toT ^^- ^"y sheriff", who shall have received a precept, and shall penalty of go out of ofHcc before the return day thereof, without having execiiti'ng"pre- f-'^ccuted the Same, shaU forfeit and pay to the party at whose cepts iu certain instance it was issued, the sum of one hundred dollars, if such cases. precept shall have remained in his hands for such length of time wherein it might have been well executed by 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 exe- cuted by him : And the penalty aforesaid shall be recoverable by scire facias, against such outgoing sheriff and his sureties. Sect. 6. Reappointment of defaulter, 9 Ire. 307. Sect. 14. What tax bond covers, S Ire. 104) school tax, Bns. 275 ; must be legally laid, 6 Ire. 227, 7 lb. 68; if sheriff collects without list, 8 Ire. 104; who to sue, 9 Ire. 498; on tchich bond, 3 Hawks, 42. Form of bond, 3 Hawks, 285, 1 Dev. 52, lb. 65. lI'AiVA sheriff to collect taxes, 3 Dev. 365. What third bond covers, 8 Ire. 415. lb. 513, 11 lb. 141, 3 D. & B. 68, lb. 73, 1 Ire. 155, lb. 453, 2 lb. 144, 2 Hawks, 5, lb. 366, 1 Dev. 214. Pka(Unij, in suit on bond, 6 Ire. 347, 4 D. & B. 461. 1 Dev. 157, 7 Ire. 296. Sect. 17. Who to execute process : old or new sheriff, 4 D. & B. 489; when, 3 Hawks, 548; sheriff a party, 13 Ire. 25. Who amerced, 1 Mur. 255, 7 Ire. 296, 3 Ire. 407. Whtn, 8 Ire. 240. NegVu/ence, 10 Ire. 200, lb. 242, 1 D. & B. 243, lb. 252, 13 Ire. 444. Form of return, 2 Car. L. R. 440, N. C. T. R. 79, 1 Car. L. R. 500, Bus. 377, 11 Ire. 627, 12 lb. 108. False return, 7 Ire. 317, lb. 333, lb. 412, 8 lb. 312. Sureties boundbu return, 1 Dev. 153. What execution protects sheriff; 4 D. & B. 160. Power of sheriff, 2 llawks, 246; of ex-sheriff, 2 D. & B. 87. Deputy-sheriff, 13 Iro. IS, 5 lb. 36, 1 Dev. 218, 3 lb. 23; what acts of, sheriff liable for, 7 Ire. 333, 11 it). 363, 3 lb. 649, 2 D. & B. 204; demand on dep- uty sufficient, 4 Ire. 226, 2 Dev. 638. Sect. 19. Indemnity to sheriff", 2 Dev. 136, 3 Ire. 181. Sect. 20. Escape, 10 Ire. ifv, 9 lb. 261, 6 lb. 702, 2 .Tones, 104, 8 Hawks, 211, 1 Mur. 445, 1 Hawks, 425, 6 Ire. 119, 8 lb. 147, lb. 201. Jieception, 10 Ire. 486. Sect. 22. Liability of jailer to sheriff, 11 Ire. 652. Sect. 23. Sheriffbound tike constable, 7 Ire. 879. Chap. 107.] slaves and free negroes. CHAPTER 106. SLANDER OF WOMEN. What words spoken of women sliall be actionable. WnEREAS, doubts have arisen whether actions of slander can be maintained against persons who may attempt, in a wanton and malicious manner, to destroy the reputation of innocent and unprotected women, whose very existence in society depends upon the unsullied purity of their character : — It is therefore enacted, that any words written or spoken ^J^',^"/'^' of a woman, which may amount to a charge of incontinency, women shall shall be deemed and held to be actionable. ^K'sTm Sect 1. 12 Ire. 348; 1 Dev. 210. CHAPTER 107. SLAVES AND FREE NEGROES. Section 1. Slaves, unlawfully imported, sold, &c. 2. Sheriff's duty in selling, &c. 3. His duty, when they abscond. 4. Persons informing, &o., to be reward- ed. Sheriff to give bills of sale. 5. His commissions, &o., for sales. 6. Issue of such negroes, included, &c. 7. Penalty for bringing slaves from lib- erating States. — 8. Reward for apprehending runaways. When taken in certain swamps. Re- ward and jail fees retained by jailer. •- 9. Runaways delivered to owner, or brought before a justice. Proceed- ings. If committed, sheriff to ad- vertise him. 10. Description of slaves worked in Great Dismal and other swamps, to be taken and recorded by clerk. Cer- tified copy to be kept by slave while at work. Penalty on owner for neg- lect. 11. Free negroes to procure like certifi- cates. Penalty for neglect. ' 12. Slaves without them may be pun- ished. Reward of $25 for taking them up. May be treated as runa- ways. Section 13. Certificated slaves, &c., not to work with uncertificated. Misdemeanor. 14. White persons working with uncer- tificated slaves, &c., guilty of mis- demeanor. 15. Forgery of certificate punishable with pillory, &€. 16. Not required as to certain swnmps, or swamp lands; or temporary cut- ting of timber. , 17. Penalty on sheriff, &o., employing, wrongly detaining, or suffering run- away to escape. ■' 18. Expenses of carrying runaways, how paid. ' 19. Runaways sold by sheriff in certain cases, by order of court. 20. His commissions for sale. 21. Shall convey. Proceeds how applied. 22. Owner may reclaim proceeds. ^ 23. Expenses of runaway, in certain ca- ses, paid by county. 24. County may recover back. .- 25. Runaways may be outlawed, M-hen. 26. Slaves not to go armed, or hunt with <■ 27. Not pi'operly fed, owners liable for their steaUng. 564 SLAVES AND FREE NEGROES. [ChAP. 107. Skction 28. Not allowed to hire their lime. Pen- alty on master. Slave indictable. Punishment. 29. Not to go at large as freemen. 30. Permitting slaves of others to meet for dancing, unless, &c., a misde- meanor. 31. Inferior offences of slaves, what. 32. To be cognizable by one justice. 33. Appeals from justice allowed. 34. Felonies, &c., of, tried in superior court. Slaves tried as freemen. ^ 35. Conspiracies of, how punishable. •- 36. Insurrections, how punishable. - 37. Free persons conspiring with slaves, how punishable. 38. What evidence received in trials of such cases, &c. 39. Slaves convicted of, to suffer death, or be transported. 40. Returning voluntarily- to be execu- ted. If brought back, forfeited. 41. In case of insurrection, &c., a com- mission of oyer and terminer may issue. 42. Prosecuting officer paid. 43. Court may continue case to regular term, 44. Attempting rape on white female. 45. Emancipation of slaves. Owner to give bond for freed slaves to leave the State, &c. 46. How freed, when directed by will. 47. When court may direct to what place they may be carried. 48. When issue of slaves to be emanci- pated with the mother. 49. Slaves over fifty, may be freed for meritorious services. Master to give bond, lite. 60. Emancipated for other cause, to leave the State in ninety days. Or be sold into slavery. 61. And tlie bond put in suit. 52. Freed slaves violating this chapter, to be presented. 53. None to be freed contrary to law. 54. Free negi-o not to migrate into the State. Misdemeanor; — fine §500. 65. Penalty for introducing free negroes. 6G. Free negroes immigrating, or their Section issue, not to become inhabitants. Misdemeanor. To be removed. 57. Migrating, and absent ninety days not to return, unless sickness, &c. 58. Grand-jury to be charged to present those coming into the State. 59. Free negroes forbid to preach, &c. 60. Wlien vagrants, how dealt with. Hires of, paid to county trustee. 61. Free negroes not to marry with slaves. 62. Nor gamble or play with them at cer- tain games. 63. Nor suffer slaves to gamble in their houses, &c. 64. Nor entertain them Sunday, or at night. 65. Nor hawk and peddle without license. 66. Nor wear or keep guns, bowie-knives, &c., without license. 67. Nor sell spirituous liquors. 68. Slaves convicted of felonies not capi- tal, how punished. 69. Owners to have ten days notice of trial. Liable for costs. 70. When owner cannot be notified, coun- sel appointed. Who shall have fees, &c. ,71. Evidence of slaves and pei-sons of color, against whom allowed. 72. Slaves, &c,, when witnesses, to be warned. Sec. 73. Guilty of perjury, punished as free- men. ' 74. Free negroes, in certain cases, whipt insttad of imprisoned. 75. May be hired out for fines. Hirer's authority. 76. Charged with bastard, may be hired out to support the child. 77. If hired as long as five years, fine, &c., discharged. Absconding, to serve double time. Hirer to enter into recognizance to feed, clothe, &c. Not to be removed out of the coun- ty. On breach of recognizance, dis- cliarge from service, &c. 78. Slaves not to be carried on ships, rail- roads, coaches, &c. Unless permit- ted by, or travelling with their masters, &c. 79. Who shall be deemed free negroes. to act of con- -^ J"™ tliib btate Irom any foreign port or place, for a slave, or roftatf- *° ^'^.^''^ *" r'^'r r ^'^^^r, since the first day of January, R.S.c.iii,s.i. o"e thousand eight hundred and eight, contrary to the pro- visions of an act of Congress entitled, " An Act to prohibit the importation of slaves into any port or place within the juris- Chap. 107.] slaves and free negroes. 565 diction of the United States, from and after tiie first day of January, in the year of our Lord, one tiioi;sand eight liun- dred and eight," approved the second day of March, one thousand eight hundred and seven, (except as hereinafter pro- vided,) shall be sold for the use of the State. 2. The sheriff of each county in this State is hereby author- Sheriff's duty ized and required to seize and take into his possession, every ^'^iJ^^;^;'^,!^"! such negro or person of color, who has been or shall be im- c. luTs. 2. ported as aforesaid, and shall be found in the county of which he is sheriff; and such negro or person of color, so taken, to sell and dispose of at public sale, at the court house door, (giving previous notice of twenty days, of the time of sale, by advertisement in the nearest newspaper published in the State,) to the highest bidder, at a credit of six months, the purchaser entering into bond with security, to be approved by the sheriff, for the payment of the price ; which, when received by the slieriff, he shall account for and pay to the public treasurer after deducting from the gross amount the several suras hereinafter authorized to be retained, at the same time, and under the same regulations and penalties, as are pre- scribed for paying the public taxes. 3. Where any such negro shall abscond, or so conceal him- His duty, when self that he cannot be taken, the sheriff may offer a reward, not [111 S. c^nij exceeding one fifth part of his value, to any person who will s- 3. , apprehend and deliver him to the sheriff; or the sheriff may, in his discretion, advertise and sell him as directed in the pre- ceding section, without offering a reward, although he may not be in his possession at the time of sale. 4. Any person who shall discover any such negro, and give Persons giving such notice to the sheriff that he shall, in consequence thereof, slaves to be re- obtain the negro, shall be entitled to one fifth part of the sum warded. for which the negro shall be sold, to be retained, that and the reward, out of the proceeds of sale, and paid by the sheriff; and the sheriff, or his successor, shall execute and deliver to Sheriff to give the purchaser, his execvitors, administrators, or assigns, a bill p, s.'c.^iiiT. of sale for soch negro: and the title so acquired shall not be 4,5. affected by the want of advertisement, or other irregularity, in the sale, or proceedings on the part of the sheriff. 5. The sheriff may retain out of the price, besides the reason- His commis- able charges for keeping such negro till the day of sale, and sales.'— B.'s?"^ advertising, the further sum of six per centum on the gross c. in, s. 6. proceeds of sale, in full for his services. 6. The foresfoing provisions of this chapter shall extend and Issue of sach 1 (.11 I- (. uegroes, m- apply to every negro and person ot color, and to the issue oi eluded.— R. S. every negro aiid person of color, imported as aforesaid. "• ^^^' ^' ^" 7. Every person who shall introduce into the State any J'^'^'.'y '°,'' ixT'iiT^ I'll 11 bringmg slaves slave, from any of the United States which have passed laws from liberating for the liberation of slaves, shall, on complaint thereof before ^^j'^Y s"9 ^' any justice of the peace, be compelled by such justice, to en- ter into bond with sufficient security, in the sum of one thou- sand dollars for each slave, for the removing of such slave to 48 5G6 SLAVES AND FREE NEGROES. [ChAP. 107. the State whence he was brought, within three months there- after, under the penalty of five hundred dollars for every month's delay ; one half to the use of the State, and the other half to the use of the prosecutor. Kewara for ap- 8. All persons who may apprehend and confine in jail, or de- runaways." li^^"" t" ^he owner, any runaway slave, for whom a greater re- ward shall not have been offered, shall be entitled to recover and receive from the owner a reward of five dollars, when the owner resides in the county in which the slave may be apprehended, and ten dollars, if he reside beyond the limits of such county ; men taken and if the runaway shall have been apprehended in any part swamlTs." of the swamps mentioned in section ten of this chapter, not lying in Beaufort or Hyde counties, the apprehender shall, besides any reward offered, be entitled to twenty-live dollars Reward and f,.o,^ ^^g owner; and when the runaway slave thus appre- retai'nedTy hended shall be lodged in jail, the jailer shall tax the reward jaiiei-.— R. S.^ j-^g^gj^ allowed on each slave, against the owner, and collect 1846, c. 46, 6. 7. the same with his prison fees, and all other charges allowed by this chapter. Runaways 9. Any slave, taken up as a runaway, may be delivered im- deiivcred to mediately to the owner, and if not so delivered, shall be brought before brought before a justice of the peace of the county wherein he a justice. jg apprehended; and if the owner be known, and a resident of ^ that county, the justice, by warrant, shall commit the runaway to some constable of the county, to be by him conveyed to his home, and the constable shall give a receipt for the runaway ; Proceedings, b^t if the owner be unknown, or reside out of the county, the justice shall, by warrant, commit the runaway to the jail of his If committed, county ; and the sherift" shall forthwith cause notice of such vertiso himi- commitment to be set up at the court house door of the county, B. S. 0.111, s. and there continued during two months, in which notice, a 11, 12, lo. ^^ji description of the runaway, and his clothing, shall be par- ticularly set forth ; and whenever the owner is supposed to be a resident of another State, or to reside as many as fifty miles from the jail where the runaway is confined, the sherifi' or jailer shall also cause said notice to be immediately published in some newspaper published at the seat of government, for six months, unless the runaway is sooner delivered to the owner. Description of 10. Every person being the owner, or having the use, care, slaves employ- q^ management of slaves, and employing them in the Cjreat od in Great Di5- _-. , f?, ■ ,, T ■ i r i i t ) mai and other Dismal Svvamp, or m the swamp which lies beuveen Liees swamps, to bo niill in the county of Washington, and Pamlico river in the taken and re- , . _ . .' , ■ ,, " i • i i • i j. t corded by tiio county of Bcaufort, or in the swamp which lies between Ju- ciork. niper creek, and the lands of Charles Pettigrew, in the county of Tyrrell, shall, before said slaves are put to work in any of the places aforesaid, bring each one before the clerk of the court of pleas and quarter-sessions of the county in whicli he is to be employed, wiio siiall, upon his personal examination take an exact description of the slave, specifying the name and residence of the person intending so to employ the slave, Chap. 107.] slaves and free negroes. 567 the height, complexion, and every pecnliar mark of descrip- tion, by which the slave may be most eflectnally known and identified; and such written description shall be entered by the clerk on a book kept for that purpose, and he shall forthwith make out and deliver to the owner, or to the person having the use, care, or management of the slave, a fair and true copy thereof, without any interlineation or erasure, certi- deiiverou?^ fied under his hand and the seal of the court : and the owner ownev, an,i or person aforesaid, shall, before putting the slave to work in ^;,1Rf^''.fj';^;;'.^_ any of said swamps, deliver such copy to him, to be kept about Penalty on his person. And if any owner, or person having the use, care, Jl,""— is«,T or management of any slave, shall employ him in any of said 46; 1848, c.'g«; swamps, without procuring and delivering to the slave such ■'*"'°' °- copy as aforesaid, or shall otherwise offend against the provis- ions of this section, the person so offending, shall be deemed guilty of a misdemeanor. 11. Free negroes working in any of said swamps, shall pro- Freere^esto cure from the clerks of the proper counties, a similar descrip- certificates.* tion of themselves, certified as above directed, and keep it Penalty for ready at all times when so engaged to be exhibited. And if c^le^fisis, c' any free person of color shall wilfully work in any of said 93; isso, c. swamps without such copy, he shall be deemed guilty of a misdemeanor; and, on conviction, maybe punished at the dis- cretion of the court, by fine, whipping, and imprisonment, or any of them. 12. If any slave shall wilfully work in any of said swamps. Slaves without . , ,-' . ..-',. !_• J. r it,- u them may be Without such copy as is prescribed in section ten ot this chap- punished. ter, he may be arrested by any person ; and, on being tried ^<=™''^^ o*^®*^ and convicted before a justice of the peace, shall receive thirty- ™ " '"S^P* nine lashes on his bare back; and the person arresting such Maybe treated .1. .11,1 1 lie j_t as ninawaTS- — slave, shall be entitled to demand and have from the owner or ^g.^g, o. 46. person having the use, care, or management of the slave, twenty-five dollars ; or may proceed against the slave, as a runaway, according to the law directing the disposition of run- away slaves, and cause him to be kept in custody, until the said sum of twenty-five dollars, and all other charges shall have been paid. 13. If any slave or free person of color, having obtained f,^^e^''&^.'^not such certified copy, shall, in any of said swamps, consort with, towork with or work, or be employed in company with any runaway slave, jfi^jgJ^f/^nOT; or any slave or free negro not having such copy, the slave or_ie46, e.46. free person so offending, shall be deemed guilty of a misde- meanor. 14. If any white person shall, in any of said swamps, con- White persons , •' . , ' , ' ■' , I ii • working with sort or work with, or employ, or engage to work therein, any i,„certiaciitsa runaway slave, or any slave who shall not have such certified slaves, &c., copy as aforesaid, he shall forfeit the sum of one hundred dol- §",„•,■.— isis, lars, to any person who will sue for the same, and shall be c. 4S. deemed guilty of a misdemeanor ; and on conviction, may be imprisoned not more than six months ; or fined at the discre- tion of the court. 568 SLAVES AND FREE NEGROES. [ChAP. 107. «(ica?7puuisT ^'^' ^^ ^"y person shall falsely make, forge, or counterfeit, able with pii- O"" cause the same to be done, or willingly aid or assist therein, isIs'^'iT ^"^ writing, purporting to be the original, or a copy of a de- ' ■ ■ scription of any slave or free person of color, employed or about to be employed in any of said swamps, with intent to evade any of the provisions of this chapter, which relate to such persons, the person so oft'ending shall be guilty of a mis- demeanor, and on conviction, shall be punished by standing in the pillory for one hour, by whipping, imprisonment for six months, and fme ; by all or any of them, at the discretion of the court. Certificate IG. None of the provisions of this chapter respecting work- S'toTrta'n ^"S '" swamps, shall be construed to extend to any swamp in swamps; or re- the county of Currituck, lying below Indian Town creek bridge ; landTo'l'trr'' "°^" ^° ^"y P^*''^ °^ ^'^^ swamps herein referred to, which lie in poniry cutting Bcaufort Or Hyde counties; nor to any swamp lands which imbTc.TsT ^'^^'^ ^^^'■'^ ^^^" reclaimed, and may be used for agricultural isso^c. 187. purposes; nor to any slave employed in cultivating the same; nor to any slave, his owner, employer, or manager that may be temporarily engaged in said swamp, in cutting timber for ordinary plantation purposes. fhp"rm-^fec ^'^' ^^ ^"^ sheriff, jailer, or constable, shall set to work, em- empioyiiigi' P^oy, OT let out to hire, any runaway slave committed to his tainhfs^otsuf- '^"'*tody,or shall detain such runaway longer than by thischap- feringruna- ter is directed, he shall forfeit the jail fees ; and if any sheriff, ^"^^°f°i'\P<'- jailer, or constable, to whom any runaway is committed by 8. 13. ■ ■ ' virtue of this chapter, shall negligently or wilfully suffer such runaway to escape, he shall be liable on his official bond, to the action of the party grieved, for the recovery of his dam- ages. ^^,^^'^unl''"" ^^- "^'^"^ expense of carrying a runaway to jail, incurred by ways, iiow any officer, shall be paid by the county, and repaid to the iii'^rf4 ^' "' ''^""^y ^y ^he owner; and the same shall be a lien on the run- ' ■ ■ away in behalf of the county. Runaways sold 19- Whenever any slave shall be taken up as a runaway, and sl^rby order confined in jail for twelve months, and his apprehension and of court.— R. confinement have been advertised in a newspaper as aforesaid, S. c. Ill, 6. 16. for six nionths, and the owner does not apply to prove property in that time, then the court of pleas and quarter-sessions of the county in which the runaway is confined, shall command the sheriff of the county to expose the slave to public sale, for cash, giving two months' notice in some newspaper published in this State, at the court house door, and at two other public places in the county, of the time and place of sale, and of the circumstances under which the slave is to be sold. • foJTa'ui-R's ^^' "^''^ sheriff shall be allowed two and a half per centum c.ni."' ■ ■ on the amount of sales made under the preceding section. ye'"'"procecd« ^^' '^''^ '^'" "^ '^^''^ "^ *''*^ sheriff shall vest in the purchaser how applied.- an absolute right to the slave; and the sheriff shall pay over Ej s. c. ill, 6. the residue of the amount of sales, after deducting his com- Chap. 107.] slaves and free negroes. 569 missions and prison charges, to the county trustee for the use of the county. 22. Upon the petition of the owner of such slave, to^ the ^i;™,^^;;;^^;^^; court of the county Avhere the proceeds of sale are deposited, o,, petition.— and upon satisfactory proof of the right of property of the pe- «■ s. c. ill, s. titioner, the court shall direct payment to him of the sum paid into the county treasury, taking bond and security from the petitioner, when they think proper, payable to the State of North Carolina, to refund the money with interest to the true owner of the slave, should it thereafter appear that the peti- tioner was not such. 23. If any runaway slave confined in jail, (his owner being ExpenFes of unknown,) should die, or, by the regular process of law be re- certain cls« moved from jail before a sale is made, according to the pro- pnidb^y county, visions of this chapter, the court of pleas and quarter-sessions ^ ,0. ' "' ' of the county where the slave was confined, shall direct the expenses of his imprisonment to be paid out of the county funds. Provided, that the sheriff or jailer shows to the court, that he has complied with the directions requiring the adver- tisement of runaways. 24. Whenever such expenses shall have been paid by the ^°^^}y ^^^ county, the county trustee by warrant shall recover back the — r. s. e. iii, same "of the owner, or his representatives, when he shall be- ^- ^°- come known, for the use of the county. 25. Whereas, many times slaves do run away and lie out, ^"^^'^^f^^'^n hid and lurking in swamps, woods, and other obscure places, certain ca^es.- killing cattle and hogs, and committing other injuries to the R^ S. c. iii,s. inhabitants of the State ; in all sueh cases, upon intelligence that any slave is lying out as aforesaid, any two justices of the peace for the county wherein he is supposed to lurk or do mischief, are hereby empowered and required to issue procla- mation against him, (reciting his name and the name of the owner if known,) thereby requiring him forthwith to surren- der himself; and also to empower and require the sheriff of the county to take such power with him, as he shall think fit and necessary, for going in search and pursuit of, and effectu- ally apprehending sueh outlying slave; which proclamation shall be published at the door of the court house, and at such other places as the justices shall direct. And if any slave against whom proclamation hath been thus issued, stay out, and do not immediately return home, any person may capture him ; and in case of flight or resistance, may slay him without accusation or impeachment of any crime. 26. No slave shall go armed with gun, sword, or other Slaves not to . ,1 . 1 1 11 u 1 go armed, or weapon, or shall keep any such weapon, or shall hunt or range |unt with with a gun in the woods, upon any pretence whatsoever ; and ^""^;~3' ^' "" if a slave shall be found offending herein, any person may seize and take to his own use such gun or other weapon, and may apprehend and bring such slave before a justice for trial and punishment, and send him home ; and the master or owner 48* 570 Not properly fed, owners liable for their stealing. — R. S. c. Ill, 6. 26. Not allowed to hire their time. Penalty on master. Slave indicta- ble. Punishment. — B. S.c. Ill, 6. SI. Not to go at large as free- men.— P.. S. c. 111,6.32. Permitting slaves of others to meet for dancing, un- less, &c., amis- demeanor. — R. S. c. Ill, s. 33. Inferior of- fences of slaves, what. — n. S.c. Ill, s. 21, 24, 25, 27, 28, 2'J, 30, 34, 02. SLAVES AND FREE NEGROES. [ChAP. 107. shall pay the taker up of such armed slave, the same reward as i.s allowed for taking up runaways. 27. In case any slave who shall appear not to have been properly clothed and fed, shall be convicted of stealing any corn, cattle, hogs, or other goods whatsoever, from any person not the owner of such slave, such injured person may main- tain an action on the case, against the possessor of such slave, for his damages. 28. No person under any pretence whatever, shall hire to his slave, or to a slave under his control, his time, on pain of forfeiting forty dollars for every offence. And it shall be the duty of all grand-juries to make presentment of any slave, who shall be permitted by his master to go at large, hav- ing hired his time ; and, on indictment being found for the offence, a capias shall issue to take such slave and secure him in custody, or on sufficient recognizance of his master or oth- ers, so that he be before the next court to answer to the indict- ment. The master shall have notice of the trial, as in other cases is provided, and the court, at the return of the capias, shall impanel a jury to inquire and try the truth of the charge against the slave ; and if he be found guilty, he shall be pub- licly hired out by the sheriff for one year, who shall take bond with security from the hirer for the price, and for furnishing all necessaries, and taking proper care of the slave; and the bond shall be for the use of the poor of the county. Provided, al- ways, that if such slave be the property of a ward, he shall be hired out for the remainder only of the time for which he may belong to the person from whom he hired his time. 29. No slave shall go at large as a free man, exercising his own discretion in the employment of his time ; nor shall any slave keep house to him or herself as a free person, exercising the like discretion in the employment of his or her time : and in case the owner of slave consent to the same, or con- nive thereat, he shall be deemed guilty of a misdemeanor, and on conviction be fined not exceeding one hundred dol- lars. Provided, however, that any person may permit his slave to live or keep house upon his land, for the purpose of at- tending to the business of his master. 30. No person shall grant permission for any meeting of the slaves of others, at his house, or on his plantation, for the pur- pose of dancing, under the penalty of forfeiting twenty dollars, to any who will sue therefor, unless such slaves shall have a special permit in writing from their owners for that purpose; and the person so offending shall be deemed guilty of a mis- demeanor. 31. It shall not be lawful for any slave to be insolent to a free white person ; nor to utter mischievous and slanderous reports about any free white person; nor to wilfully trespass on his property or person ; nor to intermarry or cohabit with any free person of color; nor for any male slave to have sexual intercourse, or indulge in any grossly indecent familiarities Chap. 107.] slaves and free negroes. 571 with a white female ; nor to produce any forged free pass or certificate of freedom ; nor to go from off the plantation or seat of land, where such slave may be appointed to live, without a certificate of leave in writing from his master, or manager; nor to raise any horses, cattle, hogs, or sheep; nor to teach, or attempt to teach, any other slave or free negro to read or write, the use of figures excepted ; nor to sell any spirituous liquor or wine ; nor to play at any game of cards, dice, or nine pins ; nor to play at any game of chance, hazard, or skill, for any money, liquor, or any kind of property, whether the same be staked or not; nor to set fire to any woods, except in such manner as is allowed by statute ; nor to preach or exhort in public, or in any manner officiate as a preacher or teacher, at any prayer-meeting or other association for worship, where slaves of different families are collected together; nor to traffic with another slave, by buying of, or selling to him, any articles of property, forbidden absolutely, or forbidden, except by writ- ten permission, to be the subject of traffic between white per- sons and slaves ; nor to traffic with any other person, by buying of, or selling to him, any article of property, unless such other person may lawfully buy of, or sell the same to, said slave. 32. All the offences mentioned in the foregoing section, and inCenor of- . ,, , . , , , , ° . • 1 • j_i • fences cognir.a- all other misdemeanors done by slaves, mentioned ui this bie by one jus- chapter, the prescribed punishment whereof is whipping; and j^j ^ 41 ^' "" all crimes by them committed, whereunto, if done by a free person, extends the jurisdiction of the county court ; and all petty offences forbidden by them to be done, shall be cogniza- ble before a single justice of the peace of the county wherein the offence is committed, who shall have full power to issue summons for witnesses, and compel their attendance ; and on conviction, the ofiending slave shall receive not exceeding thirty-nine lashes on his bare back : and in all such trials, as many justices as think proper may sit in judgment. 33. Whenever any slave shall be convicted before a justice Appeals from ,, _ •'„ ,, , iiirrjii justice allow- of the peace, of any onence, the master, on behalf of the sfave, ed.— 1842, «. 3. may appeal to the next county or superior court, on entering into sufficient recognizance for the slave, and giving good se- curity, as in other cases of appeals. 34. The superior court shall have exclusive original jurisdic- Felonies, «:«., I ^ o J Qf tried ID su- tion of all felonies and other offences committed by slaves, peVior court. which, by section thirty-two, are not assigned for trial before a ^'^j^s tned ns justice of the peace ; and the trial shall be conducted in like s. c. 111, s. 42, manner as the trials of freemen for the same offence ; and *^' ■'^• moreover, the jurors shall be slave-owners. 35. If any number of slaves shall, at any time, consult, ad- Conspiracy of vise, or conspire to rebel or make insurrection, or shall plot, or p,',nisiiai)ie.— conspire to murder any person, every such consulting, plotting, '\- S- c. 111, s. or conspiring, shall be adjudged and deemed felony ; and any slave convicted thereof, in the manner prescribed by law, shall suffer death, or be transported as hereinafter provided. 06. If any slave be found in a state of rebellion or insurrec- insurrection of ^ slave*, how 572 SLAVES AND FREE NEGROES. [ChAP. 107. ptini-hniiio — fion, or shall agree to join any conspiracy or insurrection, or 3(j. ■ ■ ' ' shall procure or persuade others to join or enlist for that pur- pose, or sliall knowingly and wilfully aid, assist, or encourage any slaA'e in a state of rebellion, or engaged in a conspiracy to make insurrection, every slave, so offending and being tliereof convicted, shall suffer death, or be transported as hereinafter provided. Free persons 37, jf j^ fi-pg person shall I'oin, or agree to join, in any con- cnnsnirinewitli . in- - • /. 1 in '^ Eiaves, ii(,w spiracy, rebellion, or insurrection of slaves, or shall procure or punishable.— ^ persuadc others to join or enlist for that purpose, or shall 37. ' knowingly and wilfully aid, assist, or encourage any slave in a state of rebellion, or engage in a conspiracy to make insurrec- tion, every free person so offending, and thereof convicted, shall suffer death. What evidence 28. In all cases, wherein a slave shall be prosecuted for the recoivea m tn- rr ^ •! i • • 1 • r i i • . ^ 1 . aisforinsnr- onences described in sections thirty-nve and thirty-six of this rection. '-^'j-— chapter, the court may take for evidence the oath of one or ss. ' more witnesses, the confession of the offender freely given without any undue influence by terror or persuasion, or the testimony of a negro or other person of color, bond or free ; but in all cases, where the testimony of one negro or person of color only, shall be admitted, the same shall not be deemed sufKcient to convict the person charged; unless it shall be sup- ported by such pregnant circumstances in the trial, as to the jury shall appear convincing proof, when taken with such tes- timony. S'a^s conrict- 39. When any slave shall be convicted of either of the fel- death, or be onics Created by the thirty-fifth and thirty-sixth sections of this tiansported.— chapter, he shall suffer death ; or at the discretion of the court, 3!). ■ ■ ' ■ shall be sentenced to be transported beyond the limits of the United States, under such restrictions and upon such condi- tions, as good policy and the public safety at the time shall require. Returning vol- 40. Whenever a slave shall be transported, in pursuance sufler death, of the provisions of this chapter, by the owner, or by the State, If brought and such slave shall ever thereafter voluntarily return to, and — K. S. c. iiij be found in the State, he shall suffer death, upon due convic- ^- *"• tion thereof. And if any slave so transported, shall be brought into any county in this State by his master, or, against his will, by any other person, such slave shall be forfeited (on proof thereof) to the county into which he maybe brought; and the slave shall be again transported by order of the county court, and sold for the use of the county. In cape of in- 41. In al| cases of insurrection or rebellion, or of conspiracy a commission ' to make insurrection, or to murder, or to rebel, or any such of oyer and contemplated conspiracy, insurrection, or rebellion, of any slave fermmermav , ' ji • r i- 1 1 ^i lee issue.— R. s^c. or slaves, upon the infortnation and at the request 01 any hve 111, s. 53. justices of the peace of the county in which such offences shall happen or may be contemplated, the governor may issue a • coiTimission of oyer and terminer, to any one of the judges of the superior courts of law ; who shall hold said court forthwith, Chap. 107.] slaves and free negroes. 573 and be clothed with all the powers necessary for the trial of such slaves. 42. The officer prosecuting in behalf of the State, attending l^^^^f^l'l_ such court, shall be entitled to receive the same compensation, r. s. o. iii, s. as for attending a term of a superior court. ^*- 43. When any person, indicted before a court of oyer and c^rtmayeon- terminer, shall, upon affidavit of himself or any other, show cases to regular such circumstances and facts to the court, as would induce the i7i"s7s6". ''' °' judge, in the regular courts, to remove the trial out of the county, the judge may, in his discretion, continue the indict- ment, and commit or bind over the prisoner, as the case may require, for trial at the next superior court for the county ; when the same shall be disposed of, according to the course of the court. 44. Any slave, or free negro, or free person of color, con- Attempting^^ victed by due course of law, of an assault with intent to com- ftmire"— R.' S. mit a rape, upon the body of a white female, shall suffer death, c ni, s. 78. 45. Any inhabitant of this State, desirous to emancipate ^^'^i\",X"°° any slave, may file a petition in writing, in any of the superior courts, setting forth, as near as may be, the name, sex, and age of the slave, and praying permission to emancipate the same, and the court shall grant the prayer, on the following condi- tions, and not otherwise, namely: (1.) The petitioner shall show that he has given public notice of his intention to file the petition, at the court house of the county, and in the near- est gazette, for at least six weeks before the hearing of the petition ; and (2) shall enter into bond, with two able sureties, to^aTor'fre Jd • payable to the State of North Carolina, in the sum of one slaves to leavs thousand dollars for each slave named in the petition, condi- ^^^^^'^^'/^"i^ tioned that he shall honestly and correctly demean himself, s. 57. while he shall remain within the State ; and that he will, within ninety days after granting the prayer for emancipation, leave the State, and never afterwards come within the same. Pro- vided, nevertheless, that no such emancipation shall in any manner invalidate or affect the rights of the creditors of such petitioner. 46. Any person may, by last will and testament, direct and 'f^™/™"";,^'' authorize his executors to cau.<«e to be emancipated any of his directed br slaves, which shall justify the executor in doing the same ; ^''^^^1'— ^-g^^- °- who, to that end, is hereby directed to file a petition according to the preceding section, in the same manner as if he were absolute owner of the slaves; and such slaves shall be emanci- pated on the same terms and conditions, and under the same liabilities, as are prescribed in the said section. Provided always, that no such emancipation shall, in any manner, exempt the slaves from the claims of creditors. And provided further, that permission to emancipate any slave, under the directions of any last will and testament, shall not be granted within two years after probate of the same, unless the executor will enter into bond with good security, payable to the State of North Carolina, in double the value of each slave emancipated, con- 574 SLAVES AND FREE NEGROES. [ClIAP. 107. ditioned to be responsible to the creditors of his testator for the value of said slaves, may direct to . "^"^ ' Whenever it may be directed by a testator, that any of what place his slaves shall be emancipated and carried to any State, terri- larrieT'''''^ tory. Or Country, and it may not be convenient to carry them to the place specially appointed, the court shall designate and prescribe to what other place the slaves shall be carried after, or for emancipation. TyTs to be"^ 48. Whenever a female slave shall by will be directed to be emancipated emancipated, all her issue, born after the date of the will, shall mother.^ be deemed to have been liJvewise intended by the testator to be emancipated; and the court shall so declare, unless a contrary intent appear by the will, or by some disposition of the slave so born, inconsistent with such presumed intent. fvmay'bT^'^ 49- It may be lawful to emancipate, upon petition, and un- emancipated der the ordcr of any superior court of law, any slave over the 8ervice's''°™"^ ^»° °^ ^^^^ years, if his owner shall prove, by his own oath. Master to give or otherwise, that said slave has performed meritorious scrvi- bond,^&c. — R. ees, (which shall be more than mere general duties) ; and the petitioner will swear that he has not received in money or oth- erwise, the price or value, or any part thereof, of said slave ; or been induced to petition for his emancipation in consid- eration of any price paid, or to be paid therefor. Provided, that, before such slave shall be emancipated, the petitioner shall give bond and good security, in the sum of five hundred dollars, payable to the State of North Carolina, that said slave shall honestly and correctly demean himself, so long as he shall remain in the State, and shall not become a county charge : which bond may be sued upon, in the name of the State, to the use of the poor, or of any person injured by the malcondnct of such slave, as often as it may be broken. for^oS'cause ^^' "^^'^'"7 emancipation granted to any slave, in pursuance toieuTetlie ' ' of, and according to, the directions prescribed in this chapter, |^yj®'°'''°^'y other than emancipation for meritorious services, shall be upon the express condition that such slave, within ninety days from the time of granting the same, shall leave the State, and never thereafter return into it. And, if any such slave shall refuse or neglect to leave the State, within that time, or shall ever come within the State, after having left it, any jus- tice of the peace of the county wherein such emancipated slave may be found, shall issue a warrant to arrest him ; and, upon proper proof made of his having violated the provis- ions of this chapter, the justice shall commit him to the jail of the county, there to remain until the next ensuing term of the county court, where, on indictment found against him for the causes aforesaid, or any of them, the trial shall be by jury; and if found guilty, the offender shall be sentenced to e^aJrrv.-R'."s' '^'^ P'lblicly sold, and the purchaser shall hold him forever c. Ill," s.DS,0L thereafter as a slave, and the proceeds of sale be divided equally between the informer, and the poor of the county. Provided, however, that the accused may appeal from the judgment of the court to the superior court of the county. Chap. 107.] slaves and free negroes. 575 51. If any emancipated slave refuse or neglect to leave the An.l fiie boud . . -I c I • I Ti 'i-i ■ ii put m suit. — State, as is required of him, or shall ever come within the i,_ s.c. 111,3. same after having left it, any person may bring suit in the 1^2. name of the State, for the joint use of himself and the war- dens of the poor, of the county, upon the bond given pursu- ant to the provisions of this chapter. 52. All grand-iuries shall present every emancipated slave, FreetUhives who may violate the provisions of this chapter; and the pros- to be presented, ecuting ofHcer shall prosecute such slave as hereinbefore pro- —P- S- c. 111, vided. 53. No slave shall be set free, but according to the ; ovis- ^^,"',J[7^'',^._ ions of this chapter. ll a. c. 111. -^4. It shall not be lawful for any free negro to migrate into Free negro not this State ; and if one shall do so, he shall be deemed guilty |L"s'Sw.'' '"'° of a misdemeanor during all the time of his stay, and may Misdeuicanor. be indicted from time to time, until he removes out of the rI's. c!Tii7s- State ; and on every conviction shall be fined live hundred dol- 05, 66, 67. lars, for the payment of which he may be hired out as herein- after directed. Provided, hmvever, that such free negro shall not be indicted within thirty days after payment of the fine, or the expiration of the time of service, adjudged and suffe red on a previous conviction. t^5. Any person who shall bring into this State, by water PenEity for or land, any free negro, shall forfeit and pay, for every person negroeamtoAe so brought in, five hundred dollars, to be recovered in the stSte. — R. s. name of the State, for the use of the county wherein the ''■ "i' ^- °^- offence shall be committed. Provided, that this section shall not extend to masters of vessels, bringing into this State any free negro, employed on board and belonging to such vessels, and who shall therewith- depart ; nor to any person, travelling in or through this State, having any free negro as a servant, who shall, with such person, depart out of the State. w^6. Free negi-oes, not now lawful residents and inhabitants Free negroes of the State, shall never hereafter become so by any length IheTr'Tssu'efnat of time, neither they nor their issue; and in all cases where to become in- such free negi'oes are under the age of sixteen, it shall be the jfisdemeanor. duty of the county court of the county in which they reside. To be removed. ^ -^ XI Ixi f XI X 1 u 1 — K. S. c. Ill, to remove them at the expense ot the county; and all such as s, Qr,_ ' remain to that age, shall be deemed guilty of a misdemeanor, and on conviction, shall be fined five hundred dollars. l/S^. If any free negro, who may be a resident of this State, Migr.itinp; and shall migrate and go into any other State, and shall be absent diJyrno't'to're- for the space of ninety days or more, he shall cease to be a turn, uuii^ss resident and an inliabitant of this State, and it shall not be !!.'^i!""!'o''. lii, lawful for him to return to the State ; and if any free negro ?• "«• shall return, he shall be deemed and held to have migrated to the State. Provided, that no persons shall incur the penalties or disabilities prescribed in this section, if he shall have been prevented from returning to this State by sickness, or other unavoidable occurrence. ^58. It shall be the duty of the county solicitors to give in {^™(,"j'^J.'"JJt*," 576 SLAVES AND FREE NEGEOES. [ChAP. 107. present thoso charge to the grand-jnry, the law relating to the migration of S°atc"— k"s!° f''*^*^ "^gfoes into the State: and it is hereby made the duty c. Ill, ». 75. of the grand-jury to present all cases of that kind in their county, arising under this chapter, within the knowledge of any of them ; and the said solicitors shall, in all such cases, prosecute for, and in behalf of the State. Free negi-oes 59. If any free person of color shall preach or exhort in in' pubUo! — k! Public, or in any manner olBciate as a preacher or teacher in any S. c. Ill, s. 34. prayer-meeting, or other association for worshiji, wliere slaves of different families are collected together, he shall be deemed guilty of a misdemeanor; and on conviction, shall, for each offence, receive not exceeding thirty-nine lashes on his bare back. Vagabond free 60. If a free uegi'o who is able to labor, shall be found in deaiTwith?^'' any county spending his time in idleness and dissipation, or having no regular or honest employment or occupation, which he is accustomed to follow, any citizen may apply to a justice of the peace of said county, and upon aOidavit, obtain a warrant to arrest such person and bring him before some justice of the county ; and if, upon examination of the case, it shall appear that the free negro comes within the provisions of this section, the justice shall bind him with reasonable secu- rity, to appear at the next county court of the county ; and in case he shall fail to give security, he shall be committed to the jail of the county, until the next county court thereafter : and it shall be the duty of the court, if, tipon examination of the case, it shall come within the meaning of this section, to require such free negro to enter into bond, with sufficient secu- rity in a reasonable sum, payable to the State of North Caro- lina, conditioned for his good behavior, and industrious, peace- able deportment, for one year. And in case he shall fail to give such security, or shall not pay the costs and charges of Hires of vaga- the prosecution, the court shall hire out such free negro to groes paid'to" Service and labor, for a term of time which to them may seem county trustee, reasonable and just, and calculated to reform him to habits of sTes 70.*^ ' industry and morality, not exceeding three years for any one offence. And all sums of money which may arise under the provisions of this section, shall be paid to the county trustee. Free negroes 61. It shall not be lawful for a free negro to intermarry, or with'slTveZ— cohabit and live together as man and wife, with any slave ; R. S. 0. Ill, s. and any free negro offending herein, .shall be liable to indict- ment, and, upon conviction, shall be fined and imprisoned, or whipped at the discretion of the court ; the whipping not to exceed thirty-nine lashes. Provided., that this section shall not extend to any case where an intermarriage, or cohabiting, or living together took place, by and with the consent of the master or mistress, before the first day of November, A. D. one thousand eight hundred and forty-four. Nor gamble 62. No free negro shall play at all with any slave at any norViay'^with E^''^^ of card.s, dice, or nine pins; nor shall he play witii any them at certain slave at any game of chance, hazard, or skill, for money, liijuor, ClUP. 107.] SLAVES AND FREE NEGROES. 577 or any thing of value; and any free negro offending herein giimes. — R. S. shall be deemed guilty of a misdemeanor, and, on conviction, '^' ^^^' ^' ' shall receive a whipping, not exceeding thirty-nine lashes, on his bare back. 63. If any free negro, or person of mixed blood, shall know- ^'o"" suffer ingly suffer any slave to play at any game of cards, dice, 1,1" f,^tl°j,fr™ nine pins, or any game of chance, hazard, or skill, whether for i'0"fes, &c. — money, liquor, or any kind of property, or not, in his house, or go. ' °' '^' in the yard, field, or garden attached or belonging to his house, he shall be deemed guilty of a misdemeanor; and, on conviction, shall receive not exceeding thirty-nine lashes on his bare back. 64. If a free negro shall entertain any slave in his house, Nor entortain during Sunday, or in the night between sunset and sunrise, or at night. — he shall forfeit and pay two dollars for every offence, for the ^- s. c. 111, s. use of the county in which the offence shall be committed. 6.5. No free negro shall hawk or peddle in any county, with- Nor hawk and out first obtaining a license from the court of pleas and quar- ficense. — R. S. ter-sessions of that county ; which license shall be granted for <=■ m, s. 85. but one year, and only when seven or more justices are pres- ent, and upon satisfactory evidence of the good character of the applicant. And if any free negro shall oflcnd against this section, he shall be deemed guilty of a misdemeanor. ^-CB. If any free negro shall wear or carry about his person, Nor wear or or keep in his house, any shot-gun, musket, rifle, pistol, sword, {^owieSnivss dagger, or bowie-knife, unless he shall have obtained a license &c., witbont' therefor from the court of pleas and quarter-sessions of hisJj'^gQ^'^'"^ ' county, within one year next preceding the time of the wear- ing, keeping, or carrying thereof, he shall be guilty of a mis- demeanor. 67. If any free negro shall, directly or indirectly, sell or give Nor sell spirit- to any person, bond or free, any spirituous liquor, he shall be 1S44 c "g?"" deemed guilty of a misdemeanor. 68. Every slave or free person of color, who shall hereafter Slaves convict- be convicted of any felony, for which no specific punishment ^^^("[^pij""'^^^^ is prescribed by statute, and which is now allowed the benefit punisiiod.— R. of clergy, shall be imprisoned at the discretion of the court, ''' "' ^'^ ^'*^' not exceeding two years ; and, in addition to such imprison- ment, the court may sentence the convict to receive one or more public whippings, or to stand in the pillory, or (if a free negro) to pay a fine, regard being had to the circumstances of each case. 69. When a slave shall be apprehended or indicted for any Owners to have ofl'ence, whereof the superior court has original jurisdiction, oTuiai." his owner, if known, shall have ten days' notice of the trial, in order that he may have an opportunity of defending his slave ; the cost of which notice, and all other costs, attending Lia,w&ftrc(Mts. the trial of the slave, shall be paid by the owner, if such slave, ^4s'. ' ' ' being a free man, would be liable to the payment thereof. And if the owner refuse to pay the same, execution in the name of the State may issue against such owner. 49 SLAVES AND FREE NEGROES. [ChAP. 107. Wlien owner Ciinnot be noti- fied, counsel appointed. Evklcnce of slaves nnd per- sons of color, nllowed.— R. S c. Ill, s. 80. 70. When the owner of any slave who may be tried in virtue of tliis chapter, shall not be known, or cannot be ascer- tained, or shall reside out of the State, the court shall appoint counsel to appear for the prisoner, who shall be allowed the same fees as the attorney for the State is allowed for such criminal prosecutions ; after which, the trial may proceed in the same manner, as if the owner had been notified agreeable Who shall have to the directions of this chapter ; and the fees for the counsel, L?c.'in,T. 49. clerk, and sheriff", shall be paid by the county having cogni- zance of the ofience, as other county charges. 71. Negroes, Indians, and persons of mixed blood, descended from negro and Indian ancestors, to the fourth generation in- nst whom clusive, (though one ancestor of each generation may have "' ~ been a white person,) whether bond or free, shall be deemed and taken in law to be incapable to be witnesses in any case whatever, except against each other. In all pleas of the State, where the defendant may be a negro, Indian, or person of mixed blood, descended from negro or Indian ancestors, to the fourth generation inclusive, (though one ancestor of each gen- eration may have been a white person,) whether such defend- ant be bond or free, the evidence of a negro, Indian, and of all persons of mixed blood, descended from negro or Indian ances- tors to the fourth generation inclusive, (though one ancestor of each generation may have been a white person,) whether the person whose evidence is offered be bond or free, shall be admissible, and the witnesses competent, subject, nevertheless, to be excluded upon any other grounds of incompetency which may exist. 72. On the trial of any slave, free person of color, or Indian, the judge or presiding magistrate, before the examination of any slave, free negro, or Indian, shall charge such to declare the truth. 73. If any slave, free negro, or Indian, upon any trial where as?ree'men!--R. he may be examined as a witness, shall commit wilful and S. c.iii, s. 52. corrupt perjury, he shall, upon conviction, be punished as a freeman convicted of a like offence. 74. In every case where the whole, or part of the punish- ment prescribed by statute for any offence, shall be imprison- ment for a time so long as thirty days at least, and there shall be provided by the statute no difference in the punishment between a white person and a free negro, the court may sen- tence the free negro to be both whipped and im])risoned ; but in such case tlie time of imprisonment, within the limit pre- scribed, shall be in the discretion of the court. 75. When a free negi-o shall be convicted of any offence against the criminal laws of the State, and sentenced to pay a fine, and it shall appear to the satisfaction of the court, that he is unable to pay the fine imposed, (which shall in all cases be equal to the costs,) the court shall direct the sheriff' to hire out such free negro publicly at the court house door, during the term of court, to any person who will pay the fine, or the Slaves, &c., ■when witness- es, to be warned, &c. — E. 8.0. Ill, s. 51. Guilty of per- Free negroes i certain cases, "wliipped, in- stead of im- prisoned. May be hired out for fines. Chap. 107.] sl.wes and free negroes. 579 greatest part thereof, for the services of the free negro for the shortest space of time, not exceeding five years; and the hirer Hirer's author- shall have all such power and authority over, and the same 'f/-— ^- «■ <•• II • r \ p J. lil,S.OO,07,oO. rights to control the services of, such tree negro, as masters have over free negro apprentices. 76. Whenever a free negro shall be charged with the main- Charged with tenaiice of any bastard child, and h'e shall be unable to give S';^;'^''!";'^ ''^ the bond required in such case, the court may order him to be support the hired out, in the same manner and under the same rules as are *^ '' ' prescribed in the preceding section, for such sum as the court shall adjudge to be proper for the maintenance of the child. 77. When any free negro, for any fine imposed on him for if the term of an oftence, or for a sum of money adjudged against him in !;"■« '^<''o"g.'« ' ici c d vears, line, case of bastardy, shall be hired out for the space oi live years, &c.,"to bedis- the whole fine or sum of money shall be discharged ; and the charged. sheriff, after deducting five per centum on the sums collected for any hiring, shall account for the residue, as for other fines ; and in these cases, the officers shall have full fees. Provided Absconding to ahcai/s, that if any free negro, who may be hired out for his =?^^^<= double fine, or in pursuance of section seventy-five of this chapter, shall abscond or leave the service of his hirer, before the expira- tion of his time of hiring, such free negro shall be bound to serve double the deficient time. And provided, further, that nwer to enter the person hiring such free negro shall, in open court, enter '^"'^p"°°fggj into recognizance to the State, with two able sureties, in such clothe, &c. ' sum as the court shall direct, that the free negro, during the time of service, shall be furnished with good and sufficient lodging, clothing, medicine, and food ; shall be treated with humanity, and be employed in some useful and industrious occupation ; shall not be removed from the county, during the N^t („ ,jg j.^_ term of service, and shall be produced to the county court at yj"™^""'; "*^ the expiration thereof, or whenever, and as often as, the court may order. On breach of the recognizance, the prosecuting on breach of officer of the court, which may have directed the hiring, shall J','j™i^"^^4j'^"-'' enforce and collect the recognizance for the benefit of the free from service, negro, who, on such breach thereof being established, shall be f,";~'^c/' '^' discharged of all further service. And if any hirer shall fail to ' " ' comply with any of the duties hereby imposed on him, he shall be deemed guilty of a misdemeanor, and may be prosecuted therefor in the county where the hiring took place. 78. It shall not be lawful for any slave to be transported on slaves not to any railroad, steamboat, or other vessel navigating the waters be carried on .•',_, ' ' , , .,t , ^ . . . ships, railroads, of the State, or on any stage-coach, without a permission in coaches, &c. writing from the owner, under the penalty of five hundred dol- lars ; one half to the informer and one half to the State, to be recovered in the name of the State against •such railroad com- pany, the owner or captain of the boat or vessel, or the owner of such coach, as the case may be. And if any slave shall escape from his owner, by means of such transportation, the owner may recover his value from the said company, owner, or captain of the boat, or owner of the coach, so transporting the 580 STATUTES, REPEAL, AND CONSTRUCTION OF. [ChAP. 108. tid b^^ w™iv ^'''^^^' (^® ^^^ ^^®® ™^y ^'^') ^y action on the case. Provided, emng'^mth™^' howcver, that this section shall not extend to the case of any iMoT'ss^s'" ^'^^^ travelling with his master, or with the agent of his 1,2,8?" '^' master, or as the servant or attendant of any white person, bond fide employed for that purpose. Who shall be 79. All free persons descended from negro ancestors, to the ne^oel-R. S. fourth generation inclusive, though one ancestor of each gen- c. Ill, 8.74. eration may have been a white person, shall be deemed free negroes and persons of mixed blood. Sect. 28. 13 Ire. 1B4; 5 lb. 221. Sect. 30. 10 Ire. 536. Sect. 32. 13 Ire. 373. Sect. 33. 13 Ire. 373; 8 lb. 48. Sect. 44. 2 D. & B. 297; 3 Dev. 329. Sect. 45. Before 1830, Bus. 60; 12 Ire. 41; 11 lb. 449; 9 lb. 168; 3 D. & B. 88- 1 lb. 3S4. ' Sect. 46. 4 Ire. Eq. 15; 6 lb. 15; 8 lb. 32; 7 lb. 201; 8 lb. 253; lb. 70; 8 Ire. 66; 1 Jones, Eq. 1 ; lb. 35 ; 1 Ire. Eq. 436. WiU made in Vtroinia, 1 Ire. 109, 3 lb. 224. Sect. 49. 3 D. & B. 38. ' Sect. 54. 2 Jones, 52. Sect. 66. 8 Ire. 256. Sect. 69. Bus. 6. Sect. 76. Status of free negroes, 4 D. & B. 25, 5 Ire. 250. Sect. 77. 8 Ire. 622. CHAPTER 108. STATUTES, REPEAL, AND CONSTRUCTION OF. Section 1. Repeal of statutes not to affect suits. 2. Rules for construing statutes. (1.) Singular and plural number, mas- culine gender, &c. (2.) Authority of public officers, &c., exercised by majorities, unless, &c. (3.) "Month" ivnd "year." Section (4.) " Oath" and "sworn." (5.) " Person." (6.) " Preceding " and " following." (7.) " Seal." (8.) " Will." (9.) " Written" and " in writing." (10.) " State " and " United States." Repeal of Stat- 1. TiiE repeal of a statute shall not affect any suit brought utes not toat-,f , ' ,- /-/.. . ■■■'„ , " feet suits.— R. betore the repeal, tor any forfeitures incurred, or for the fccov- S, c. 100, s. 1. ery of any rights accruing under such statute. Rules for con- 2. In the construction of all statutes, the following rules struing Stat- v 1 1 u i i ^ i , • > > , , ^ . utcs. shall be observed, unless such construction would be inconsis- tent with the manifest intent of the General Assembly, or re- pugnant to the context of the same statute, that is to say : — ^S'm.mber ^^'^ Evcry word, importing the singular number only, may malcuiinc"ynl cxtcnd and be applied to several persons or things, as well as der,&c. to one person or thing; and evcry word importing the plural number only, may extend and be applied to one person or thing, as well as to several persons or things ; and every word Chap. 108.] statutes, repe.4.l, and construction of. 581 'sworn. ' importing the masculine gender only, may extend and be ap- plied to females as well as to males. (2.) All words purporting to give a joint authority to three ^^;'^\'j°''^'4°4_ or more public officers or other persons, shall be construed as &c., exercised giving such authority to a majority of such officers or other J;^,™jJ°4'.'^'' persons, unless it shall be otherwise expressly declared in the ""'''" law giving the authority. (3.) The word " month" shall be construed to mean a cal- "^™*"''"'i endar month, unless otherwise expressed ; and the word "year" a calendar year, unless otherwise expressed; and the word " year " alone shall be equivalent to the expression " year of our Lord." (4.) The word " oath " shall be construed to include «af- "0»tii"'i"c liable to surety is unwilling that such stay shall be had, the surety may l™^\^ cause his dissent thereto to be entered by the justice, which shall absolve him from all liability to the surety, who may 586 Officer, how to collect in siicli case. — R. S. c. 113, s. 3. Surety, paying (leW of dee'd {)rincipal, to lave priority as the creditor had, against tlie estate.— R. S. c. 113, s. 4. TOWNS. [Chap. 111. 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 snrety for the stay of execution, if he can, before he shall sell tlie prop- erty of the surety before judgment. 4. Whenever a surety, or his representative, shall pay the debt of his deceased principal, the claim thus accruing shall have such priority in the administration of the assets of the principal, as had the debt before its payment. Sect. 1. Sureties : who are, 4 D. & B. 458, lb. 404, lb. 537. Relation, to creditor, 1 Ire. 216, lb. 389, 1 D. & B. 44 ; to principal; cannot sue piincipal in tort, 11 Ire. 294 ; must pay before siiinff, 12 Ire. 243, 7 Ire. 353, 1 lb. 286, 3 Dev. 253, 4 I). & B. 458, 2 lb. 460, 1 lb. 437 ; demand necessary, 4 Dev. 300. Payment by surety: effect of, 3 Dev. 360, lb. 237, 1 D. & B. 437. How sureties discharged, 4 Dev. 529, 1 Ire. 216, 5 Ire. Eq. 91, lb. 369. Sect. 2. Cosureties, 8 Ire. 56, lb. 286, 9 lb. 10, 4 lb. 377, lb. 83, 1 Joues, Eq. 313, 6 Ire. Eq. 115. Sect. 4. Bus. 300. CHAPTER 111. TOWNS. Section 1. Incorporated towns may elect com- missioners, who shall be a body cor- porate. How styled. 2. Qualification of commissioners. 3. Of voters. 4. First election, when held, and number of commissioners; when afterward.', and how conducted. 5. Inspectors of elections; their duty. 6. Election tied, decided by lot. 7. Number of commissioners, and time of election may be changed. 8. On change of time, or failure to elect, officers in to hold, &c. 9. Vacancy, how filled. 10. Mayor maybe elected. Tie vote, how determined. Terra of office. Va- cancy, how filled. Shall preside at meetings. 11. Mayor shall take oaths. Shall have judicial powers. Their extent. Ap- peal lies from his judgment. 12. Commissioners to take oath. Their powers to make by-laws, &c. 13. May lay tax — on wliat. Appoint con- stables and otlier oflicers; fix their compensation and take bonds. 14. Markets, may establish and regulate. 15. Nuisances, abate. Section 16. Streets and bridges, keep in repair. Improvements make by a.ssessment of labor, &c. Citizens exempt from working ou roads. Hay appoint overseer of streets. Citizens liable for neglect, as road hands. Town patrol. 17. By-laws, may enforce by penalties. 18. B.aker's bread, its quality and weight regulate. 19. List of taxables, to be taken by mayor. Slaves of non-residents, who to list. Double tax, when paid. Assessors of real estate appointed — their oath and duty. 20. Town constables — their oath, power, and duties. 21. Shall give bond, collect tax, and have the powers of sherilV for collection. 22. Officers refusing to qualify, to pay S25. 23. Provisions of this chapter to apply to all incorporated towns, unless, &c. 24. Tax on dogs. If not paid, how en- forced. 26. Animal statement of taxes and ex- penditures, to bo published. Pen- alty, iplOO. Chap. 111.] towns. 587 1. Every incorporated town, for the better government incorporated thereof, may annually elect by ballot, not more than seven, nor S oraimis- less than three commissioners, who shall, they and their sue- sjoners, who , 111 i -ii • 1- shall be a body cessors, be deemed a body corporate with succession during corporate. the corporate existence of the town, and shall be styled, " the How styled. commissioners of the town of ," (the same being the name of the town of which they are commissioners). 2. The commissioners shall be of the age of twenty-one Qualification of ,,, .-11 .,1. ,1 1- •! ?ii J. J.1 commissioners. years, shall have resided within the limits of the town twelve months next preceding the day of election, and shall on the day of election possess a freehold or a leasehold estate for at least one year, in real estate situate within the town. 3. Every free white man of the age of twenty-one years, Ofvoters. being a native or naturalized citizen of the United States, who shall have resided within the limits of the town six months next preceding the day of election, and shall have paid all the taxes imposed upon him by the commissioners, which are due and payable, shall be entitled to vote for commissioners. 4. The first election shall be held on such day, and for as ,^.;^f„'"i|^5',f™ ^ many commissioners, as the county court of the county in number of which the town is situate may think proper to name, and ^vy™''fft(,"f''' annually afterwards on the same day: and every election for wards, and how commissioners shall be held under the inspection of such per- conducted. sons, not exceeding three, as the county court may appoint ; who shall advertise the elections at three public places in the town, ten days before the same is held. And in case the county court neglect at any time to appoint inspectors, the sheriff of the county shall summon two freeholders of the town, who with him shall make such appointment. 5. The inspectors shall be sworn by some justice of the l^'P^ctors of peace, as in elections for members of the General Assembly, duty. ' ' and they shall conduct the election in the like manner and during the same hours of the day, as elections for members of the General Assembly. And, at the close of the poll, shall declare elected such persons as have the highest number of votes ; and they shall, within ten days, notify the persons elected. 6. If among the number voted for, there should be any two Election tied, 11 1 1 r J, J -iu decided bj' lot. or more who may have an equal number ot votes, and either would be duly elected but for the equal vote, the inspectors shall determine by lot the election between them. 7. After the first election the voters of the town may, when- Number of ever and as often as they choose, by a vote at the time of ^l"™^^*^'""^''^ electing commissioners, and due notice given thereof by the election may commissioners then in authority, alter, by a concurring nia- '""^'"'"S'^'-'- jority of all the votes cast, the day of election and the num- ber of commissioners, and fix any other day or number, so that the number be not more than seven, nor less than, three ; and the elections thereafter shall be held on the designated day, and thenceforth the number of commissioners agreed on shall be chosen. 588 On cliansrc of time, or inihirc to elect, officers in to hold, &c. Vacancy, how filled. ■ Mayor may be elected. Tie vote, how determined. Term of office. Vacancy, how filled. Shall preside at meetiuRs. Mayor shall take oaths. Shall have ju- dicial powers. Their extent. Appeal allow- ed from his judgment. Commissioners to take oath. Their powers to make by- laws, &c. May lay lax, on what. TOWNS. [Chap. 111. 8. Whenever the day of election shall be altered, the offi- cers of the corporation elected or ap]3ointed before that day, shall hold their places till the day of election, and until other officers shall be appointed and qualified. And they shall hold their offices in like manner, when there is any failure to make the annual election. 9. In case of a vacancy after election, in the office of com- missioner, the others may fill it until the next election. 10. In like manner, and at the same time when commis- sioners are elected, the voters may by ballot, under the inspec- tion of the same persons and under the same rules and regula- tions, elect a mayor of the town ; and the person having the highest number of votes, shall be declared elected. If, among the number voted foi', there should be any two or more who may have an equal number of votes, and either would be elected but for the equal vote, the election shall be determined as in the case of commissioners ; and he shall be notified and hold his office for the same term as the commissioners ; and in case of a vacancy in the office, the commissioners may fill the same. The mayor shall preside at the meetings of the commissioners, but shall have no vote except in case of a tie; and in the event of his absence or sickness, the board of com- missioners may appoint one of their number, j>/'o tempore, to exercise his duties. 11. The mayor, before some justice of the peace, shall take the oaths prescribed for public officers, and an oath that he will faithfully and impartially discharge the duties imposed upon him by law. As a peace-officer, he shall have within the limits of the town, all the powers of a justice of the peace ; and as a judicial officer, shall have within the same, all the power, jurisdiction, and authority of a justice of the peace, to issue process ; to hear and determine all cases that may arise upon the ordinances of the commissioners ; to enforce penal- ties by issuing execution upon any adjudged violation thereof, and to execute the laws and rules that may be made and pro- vided by the commissioners for the government and regulation of the town. Provided, that, in all cases, any person dissatis- fied with his judgment may appeal to court, as in case of a judgment rendered by a jitstice of the peace. 12. The commissioners shall take an oath before some jus- tice of the peace, that they will faithfully and impartially dis- charge the duties of their office. They shall have power to make such by-laws, rules, and regulations for the better gov- ernment of the town, as they may deem necessary. Provided the same be not inconsistent with the provisions of this chap- ter, or the laws of the land. 13. Among the powers hereby conferred on them, they may, not oftener than aimually, lay a tax on real estate situate within the corporation ; on such polls as arc taxed by the Gen- eral Assembly for public purposes ; on all persons, (apotheca- ries and druggists excepted,) retailing or selling liquor or wines, Chap. 111.] towns. 589 of the measure of a quart or less, a tax not exceeding twenty- five dollars ; on all such shows and exhibitions for reward as are taxed by the General Assembly ; on all dogs ; and on swine, horses, and cattle, running at large within the town. They may appoint a town constable, and such other ofHcers Appoint con- and agents, as may be necessary to enforce their by-laws and ol^je'roffiMrs ; regulations, keep their records, and conduct their affairs ; may fix their com- determine the amount of their salaries or compensation ; and [^''ke'bon'ds!'"'^ also the compensation or salary of the mayor : may impose oaths of office upon them, and require bonds from them pay- able to the State, in proper penalties for the faithful discharge of their duties. 14. They may establish and regulate their markets, and Mai-ket=, mar prescribe at what place, within the corporation, shall be sold jgg'J,J,^te_ *" marketable things; in what manner, whether by weight or measure, may be sold, grain, meal, or flour, (if the flour be not packed in barrels,) fodder, hay, or oats in straw; may erect scales for the purpose of weighing the same, appoint a weigher, fix his fees, and direct by whom they shall be paid. 15. They may pass laws for abating or preventing nuisances Xuisances, of any kind, and for preserving the health of the citizens. 16. They shall provide for keeping in proper repair the Streets and streets and bridges in the town, in the manner and to the ex- in're'pai'r. ^^^ tent they may deem best; may cause such improvements in Improvements, the town to be made as may be necessary, and may appor- ™sVmea't of la- tion the same equally among the inhabitants, by assessments bor, &c. of labor or otherwise, and the citizens shall not be liable to empt frour work on the public roads without the limits of the town, woridngon When they determine to repair or improve by labor, they may j'l.jy appoint appoint an overseer and compel such persons as are liable to overseer of perform duty on the public roads, to work on the streets, in citizens liable the same manner and under the same penalties, as are provided for neglect, as by law for the reparation of the public roads. They may ap- xown patrol. point a town watch or patrol, to be regulated by such rules as the commissioners may provide. 17. They may enforce their by-laws and regulations, by By-laws may imposing penalties on such as violate them; and compel the aj^ti"!,^'' yP°°' performance of the duties they impose upon others, by suit- able penalties. 18. They shall have power to make all such laws and regu- Baker'^ bread lations as they may deem necessary to protect the citizens weiltht re"gu- of the town from imposition and fraud in the manufacture, i'^t«''- weight, and sale therein of baker's bread, and to prevent fraud- ulent mixtures of other substances therewith ; so as to insure that the bread shall be good and wholesome, and of full weight. 19. The mayor shall, by order of the commissioners, take List of taxaWe« the list of taxables in the town, in such manner and at such ^„yor!'''''" ^ time as the commissioners shall prescribe. If the owners of Slaves of non- slaves employed in town shall not reside therein, the hirers ^^ij^'i"'*' " " shall list them for taxation ; and if any person fail to list his 50 , ex- Town consta- bles, their oath, power, and duties. ^30 TOWNS. [Chap. 111. when'Vi?' t^^^bles within the time prescribed by the commissioners, he Asse"sors of ^hall be liable to a double tax. The commissioners may ap- po"nted'^'the?r P*^'-"* assessors of the real estate within the town, who, before oath and diuy. acting, shall take an oath before some justice of the peace to discharge their duties faithfully and impartially ; and the mayor and assessors shall make report to the commissioners within the time prescribed by them. 20. The town constable shall, before some justice of the peace, take the oaths prescribed for public officers, and an oath that he will faithfully and impartially discharge the duties of his office according to law. As a peace-officer, he shall have within the town all the powers of a constable in the county; and as a ministerial officer, he shall have the same power as a constable in the county, to execute all process that may be issued by the mayor, and to enforce the ordinances and regu- lations of the commissioners as they may direct. 21. He shall have the same power to collect the taxes im- P°^^'^.^y ^'^^ commissioners, as sheriffs have to collect the tiiepowersof taxes imposed by the county courts; and he may be required lectioJ"' ™^" ^y ^^^ commissioners to give bond, with sufficient security, payable to the State of North Carolina, in such sum as the cornmissioners may prescribe, to account for the same; upon which, suit may be brought by the commissioners, as suits are brought upon the bonds of other officers. 22. Every person elected or appointed commissioner, mayor, town constable, or assessor of real estate, who, after being ^zb. duly notified, shall neglect or refuse to qualify and perform the duties of his office or appointment, shall pay twenty-five dollars, one half to the use of the town, and the other half to the use of any person who will sue for the same. Provisions of 23. The provisions of this chapter shall apply to all incor- apply ufa'uin- PO^ated towns, where the same shall not be inconsistent with corporated the provisions of special acts of incorporation, or special laws towns, unless, in reference thereto. 24. If any person residing in town, shall have therein any dog, and shall not return it for taxation, and shall fail to pay the tax according to law, the commissioners, at their option, may fine the person so failing double the tax, or may treat such dog as a nuisance, and order his destruction. 25. The commissioners shall annually publish an accurate statement of the taxes levied and collected in the town, to- gether with a statement of the amount expended by them, and for what purpose. And any board of commissioners fail- ing to comply with the directions of this section, shall forfeit and pay one hundred dollars to any person who will sue for the same. Shall give bond, collect tax, and have Tovra officers refusing to qualify, to pay &c. Tax on dogs. If not paid, liow enforced Annual state- ment of taxes and expendi- tures to be lublished. 'enalty $100. Chap. 112.] TREASURER. 591 CHAPTER 112. TREASURER. Sectios 1. Treasurer biennially elected. Oaths taken and bond given. Form of bond. 2. Duplicates to be given ; how indorsed, and where deposited. 3. On failure to give bond, another elected. i. If failure occur in recess, governor and council to appoint, &c. 5. Judgment how entered on bond. 6. Treasurer to Iceep account of receipts and expenditures. 1. To report to Assembly. 8. Committee of finance, to report the state of the treasury. 9. Warrants, &c., not to be paid, unless they espi'ess the consideration. 10. Names of defaulting revenue officers to be published. 11. Month!)- settlements between treasu- rer and comptroller. Balance de- posited in banks. 12. Duplicate certiflcates of deposits to issue. 13. Treasurer may check for deposits. Section 14. Duty of treasurer and governor, on suspecting a bank of insolvency. 15. Treasurer to give duplicate receipts. No receipt good- without comptrol- ler's indorsement. 16. Accounts of hterary, and other funds, to pass through comptroller's office. 17. Certificates of the State's stocks, to be registered, iSrc, by secretary. 18. Comptroller to indorse them, when allowed as credits to treasurer. 19. Copy of, good on loss of original. 20. Treasurer may appoint agents to col- lect, &c. 21. Jlay have summary judgment against, &c. 22. Office hours of treasurer. 23. Penalty on, for not proceeding against delinquents. 24. Proceedings against treasurer, &o.,for defalcation. 25. Debt of State to have priority. 26. Int. improvement fund transferred to treasury. 27. Treasurer to procure seal of office. 1. The treasurer of the State shall be elected, as early in ^'i'fjf'j^^^g™" each biennial session of the General Assembly as can be con- oatiis taken,' veniently done. Before entering into office, and within twenty- II^'r'^S"^'' ^ j^g" one days after his election, he shall take and subscribe the s. 1.-1842, c. ' oaths prescribed, before some justice of the peace ; and give ^O- bond with sureties, to be approved by the governor and the speakers of the two houses of the General Assembly, payable to the State of North Carolina, and the following shall be the form thereof ; namely: — State of North Carolina. Know all men by these presents, that we, A. B. principal, and the other obligors whose names are hereunto subscribed, as his sureties, are held and firmly bound unto the State of North Carolina, in the sum of two hundred and fifty thousand dollars; for the payment of which we bind ourselves, our heirs, executors, and administrators. Witness our hands and seals this the day of A. D. The condition of the above obligation is such, that whereas the above bounden A. B. hath been appointed treasurer of the State; now if he shall faithfully account for all moneys and other things v^'hich shall come to his hands in virtue of his FoiTO of bond. —1842, c. 60. 592 TREASURER. [ChAP. 112. office, and perform all other duties required, and to be required of him by law, then the above obligation to be void ; otherwise to remain in full force and virtue. Duplicates to 2. The treasurer shall execute duplicate parts of said bond, indoised,'and which shall be indorsed " approved," and signed by the gover- where deposit- nor and Speakers of the two houses ; one part shall be delivered 115,6.1. by the governor to the comptroller, and the other to the secre- tary of State, for safe-keeping; and the justice performing the duty, shall certify the oath as taken and subscribed by the treasurer, and the same shall be delivered to the comptroller and filed with the bond. Provided, that the election of treas- urer shall not take place, until after the committee of finaiice shall have made their report on the state of the treasury. On failure to 3. If the person elected treasurer shall fail to give bond and other electee"." security, within the time above mentioned, the governor shall — R. S. c. 115, communicate the same to the General Assembly, who shall proceed to elect some other person. In 'recess "gov- '^" ^^ ^* ^"Y time there should not be twenty-one days be- ernorand'eoun- tween the election of treasurer and the rise of the General &c — if's c'' -A-Ssembly, then the bonds shall be given to the governor, within 115,8.3. twenty-one days after such election, and by him indorsed "approved:" and if any person elected treasurer shall fail to give such bonds, within the time prescribed, and the General Assembly should not then be in session, the governor shall call the council of State and appoint some other person treasurer, who shall give the bonds within twenty-one days, to be ap- proved by the governor. Jadgrnent how 5_ gyj^t j^j^y ^,g brought OH either of the bonds given by the bond.— R. S. c. treasurer, and judgment may be entered in the same manner 115, s. 4. 2,nd under the same rules and regulations, as are prescribed for entering judgments against delinquent sheriffs. Treasurer to Q_ 'p|,g treasurer, in books provided for that purpose at the keep account ... u ii i x i i i. c ii of receipts and public expense, shall state and keep an account ot all money expenditures, received by him on account of public taxes and impositions, s. 5. ' and otherwise, and of all moneys paid by him for public dues, and in pursuance of acts and resolutions of the General As- sembly, in such a manner that the net produce of the whole revenue, as well as of every branch thereof, and the amount of disbursements in discharge of the several demands, may dis- tinctly appear; which accounts shall at all times be liable to the inspection and examination of the General Assembly. AV*''b["°t '^' The treasurer shall make an accurate statement of the each session.— condition of the treasury, which shall be laid before the Gen- K. S. c. 115, s. gral Assembly, and be published and bound up with the laws of each session ; in which statement shall be specified the net produce of the several branches of revenue, the several allow- ances for insolvencies, and the arrears of any sheriff, or any i'Sk other person bound to account with the public treasurer: all '^■* allowances and drafts made by the General Assembly, and warrants issued by the governor, shall be severally enumerated, briefly setting forth, in whose favor they were made or drawn, and on what account. Chap. 112.] treasurer. 5»3 8. The books and accounts of the treasurer and comptroller, ^,7„™^*f^ °^. durino- the session of the General Assembly, shall be subject amine ami re- to the'inspection and examination of the committee of finance, [;."^'„'gy,fJl?R who shall carefully examine the exact condition and statement s. c. lis', s. 7. of the deposits made in the banks by the treasurer, and ascer- tain the amount of funds of the State, at the time of the report of the treasurer to the General Assembly, and also ascertain the full amount of money in the treasury, by counting the same ; and they shall report thereon at each session. 9. The treasurer shall not discharge any grant by the Gen- J^J''™"^fg''pffj; eral Assembly, or warrant of the governor, unless the grant or unless they ex- warrant shall particularly express the cause and service for R'J|^^t|ie^«™^^ which the same was allowed or issued. s. c. iio, s. 8. 10. On the first day of November, in every year, the treas- Names of do- urer and comptroller shall certify and publish for one month, ^^^J'oa^ce'rrto in some newspaper in Raleigh, a list containing the names of be published. all the revenue officers of the State, who shall, on that day, "g- ^- '=• "^' have failed to account for the public taxes and other moneys, due by them for the last year, and which by law are made payable into the treasury on the first of October preceding, stating in such list the sum due from each officer for that year. 11. The treasurer and comptroller at all times, except during Monthij- settie- the sitting of the General Assembly, shall have monthly settle- "rllLurer anir° ments of all accounts of public moneys, which by law they are comptroller. 1,1 1 • 1 iu u II u 1 -J Balance to be required to keep ; and once m each month shall balance said deposited iu accounts, and ascertain the amount of money in the possession banks.— R.^S. of the treasurer, which shall, immediately thereafter, be depos- '^' '"' ' ited by the treasurer in the banks of the State. 12. For all deposits of public money made in a bank, the J^^^^^^'^p^,. cashier shall at the time give duplicate certificates of deposit ; it's issued.— R. one to the comptroller, which he shall file and keep in his S- c ii5, s. ii. office, and the other to the treasurer. 13. The treasurer shall from time to time, as the Public Tje^^rer may interest may require, check for the public moneys deposited in posits.— R. S. the banks ; and for the amounts drawn out he shall account to «• ii5, s. 12. the comptroller in their monthly settlements ; but the treasurer may check for and keep in his office, during the session of the General Assembly, money sufficient to pay the officers and • members of the two houses. 14. If at any time the treasurer shall suspect the solvency Duty of treasn- of any bank, in which public moneys are deposited, he shall [jor on suspect- communicate the same to the governor; and if, upon an '"g si ^ank^s examination, the governor shall consider that the public interest |° c. lio', s. 13. requires the money to be withdrawn from the bank, the treas- urer shall remove it. 15. The treasurer shall, in all payments made to him, grant TieaMirci; to . , ' 11, r 1 • 1 1 11 1, Kive duplicate two receipts of the same tenor and date ; one ot which shall be receipts. filed in the comptroller's office, and the other shall be indorsed No receipt .cood I 1 11 1 • 1 .,1.1 1 u without comp- by the comptroller and continued with the person, who has troiiei's in- made the payment : And without such indorsement of the g'"^*'^i\5"g""j^" comptroller, no receipt given by the treasurer shall be valid. 50' TREASURER. [ChAP. 112. Ktera?y"an? ,\^- The receipts and expenditures of the literary fund • ;'^.'^wi/° "f.tf'^/»"J^for internal i.tprovements ; of the funds appro- JK)mptroUePs •^'"'f ^^'?. ^°^ ^'i'' Support of the asylums for the deaf, dumb office^-R.S.c and bhnd; and for the insane, shall in all cases be passed ' • • through the comptroller's office, be examined by him and entered on his books, in like manner as other receipts and expenditures. ^ fhe1?a^"°' ^, 17. The treasurer shall deliver to the secretary of State all SeVeda'nd .5" 'J^^'^^^^'^f' f o^'^" evidences of shares of stock in any of indorsed by ^^'', "fo^po'-ated Companies, in which the State is interested- sTTiTr?6 f ^ '? secretary of State shall register the same in a well-' ' ^°""d ^°«k kept for that purpose, and indorse the registration on he back of each certificate, or other evidence of the claim Comptroller to °\q' ^^^'' ^"^ return the same to the treasurer. indorse them, ''f ^ "^ comptroller, as soon as his accounts shall be passed ^'cTedi'lr^o'' °'l ^^ ^l^e General Assembly, shall indorse upon each certffi- treasurer.-R. cf;<^' Or Other evidence of public stock, that the same has been S. c. 115, s. 17. allowed by the General Assembly, as a credit to the treasurer and also the date of such allowance ; and then shall return such certificate or other evidence to the treasurer for safe- Keepmg. ^tes ot^origi- 19- Whenever any certificate of shares or stock in any in- ?i"i8'-" Q^T?*'."? company, or other evidence of the claim of the State to the same shall be lost or destroyed, a certified copy thereoffrom the secretary's oflice shall be as good and valid Treasurer and ^'£ the original were produced. governor may '^^- Whenever It shall be necessary to collect any moneys to'Sc?,"^ °' to enforce any demands of the State, in any other State o^ -E. S. c. 115, country, the treasurer, with the approbation of the governor, '■19. shall appoint an agent for that purpose, and execute to him letters of attorney, specifying the powers conferred; and the agent shall receive such compensation from the treasurer, as the governor and treasurer may allow, or as the General As- sembly may dn-ect. ma&Vr" 21. The treasurer shall have full power to move in any TroutT ^°"'"^."^ record for judgment against any agent for the State ^.s,.c.ii5,s. who IS indebted by reason of such agency, in the manner and Ome?l,onrs of ""s^"" 't ^f TtT'^ M "" 'T' '^^^f'^^^'^'^' ^''^riffs. treasurer.-K. , '^'^- ^^"^ ^"aH attend at his office m the city of Raleio-h, be- S.c.ii5,s.;.2. tvveen the hours of nine and twelve, and between two and five o clock on every day in the year, (Sundays, the fourth of July, Pe It f /"'i'V^*§^'''"S <^^^y' '^"'^ Christmas excepted). proceeJin"?"" ^'^^ ^^ '^ ^ny instance the treasurer shall neglect to call to auems"'R''s ^^^°""t, as directed by law, any delinquents herein before de- TnlX^s f ''^'',^' ^vhereby the public revenue may suffer loss, he shall be held and deemed accountable for the sums due by such de incjuents, to all intents and purposes, as if the same had actually been paid into his office. r^aTnst'tfs-r , t"^- ^^ ^^ any time it shall appear, from the accounts kept SefiSn'''"'.. r'n" 1 comptroller and treasurer, or in any other way, R s c iiM. ^''''* ^'''^ treasurer has not accounted for and paid over the £6. .\ Chap. 113.] UNIVERSITY. 595 public moneys of the State as directed by law, the State may move for and obtain judgment against the treasurer and his sureties in any court of record, first giving to the persons against whom such motion shall be made, five days' notice of the time and place, when and where such motion will be made. 25. If any treasurer, or other person indebted to the State, Debt of State shall become insolvent, the debt of the State shall be paid first ity.J^R! s."c.^' of all debts, notwithstanding any attachment against his ef- lis, s. 2. fects, or any voluntary assignment thereof to pay debts, or for other purposes. And in case of the death of the debtor, no other debt but funeral expenses, shall be preferred to the debt of the State. 26. The fund now known as the internal improvement Internal im- fund, and heretofore directed to be transferred to the public fu,°d^™ansfer- treasur}', and not otherwise heretofore appropriated, shall in red to treasury. future be deemed and considered to be a part of the public funds, and be consolidated therewith; and there shall be no separation or distinct account of the same. 27. The treasurer shall procure a seal of office with such Treasurer to 1 . , , , 1 , 1 1 i_ procure seal ot devices thereon, as the treasurer and governor deem most otGce.— 1S48, suitable. Kes. CHAPTER 113. UNIVERSITY. Section 1. License to retail in two miles of Chapel Hill void. 2. Places in' two miles of Chapel Hill for sale of linuors, forbidden. 3. No person without written permit, to sell liquor to be used iu two miles of Chapel Hill. 4. Electioneering treats in two miles for- bidden. B. Also billiard and gaming-tables in five miles. Section 6. Also exhibitions in five miles, without license. 7. Violation of preceding sections, amis- demeanor. 8. Contracts with minor students with- out permission, void. 9. May be avoided under plea of general issue. 10. Incapable of confirmation. 11. University endowed with escheats. 12. To take effect from ratification. 1. Any license granted to retail spirituous liquor, wine, or l-'f ensc to re- cordials at Chapel Hill, or within two miles thereof, shall be Hiii,\tc.,' void. void. 2. No person shall erect, keep, maintain, or have at Chapel Pincesmtwo . . . * ' mdes of for Hill, or within two miles thereof, any tippling-house, establish- j-aie of Mciuore, ment, or place, for the sale of wine, cordials, spirituous, or f<"'t>i'^'l™- malt liquor. 3. No person in the State, without permission in writing No person from the president of the university, or some member of its ten i™ml7'to 596 sell liquor to be used iu two miles of Chapel Hill.— R. S. c. 116, s. 1. Electioneering treats forbid- den. Also billiard and gaming- tables in five miles.— R. S. c. 116, s. 4. Also exhibi- tions in five miles witliout' license. — R. S. c. 116, s. 3. Violating pre- ceding sections, misdemeanor. Contracts with minor students without per- mission, void. May be avoid- ed under plea of general is- sue. Incapable of confirmation. Endowed with escheats. — 2 R. S. p. 428.— 1789, s. 2. To take elTect from ratifica- tion. UNn'EEsiTT. [Chap. 113. faculty, shall sell, or offer to sell, or deliver to any student of the university, or to any other person, any wine, cordial, spir- ituous or malt liquor, for the purpose of being used, or with knowledge that the same will be ii.sed at Chapel Hill, or within two miles thereof, by any such student. 4. No person, at or within two miles of Chapel Hill, shall give or furnish any electioneering treat or entertainment. 5. No person shall set up, keep, or maintain at Chapel Hill, or within five miles thereof, any public billiard-table or other public table of any kind at which games of chance or skill, by whatever name called, may be played. 6. No person, without permission in writing obtained there- for from the president of the university or some member of its faculty seven days beforehand, shall exhibit at Chapel Hill, or within five miles thereof, any theatricals, slight of hand, or equestrian performances, or any dramatic recitations or repre- sentations, or any rope or wire-dancing, natural or artificial curiosities, or any concert, serenade, or performance in music, singing, or dancing. 7. Any person who shall offend against any of the provis- ions of this chapter hereinbefore recited, shall be deemed guilty of a misdemeanor. 8. Every contract or agreement by any student of the uni- versity, being then a minor, with any shopkeeper, merchant, trader, or other person, upon the sale of any wine, cordial, spirituous or malt liquor, or of any goods, wares, or merchan- dise, or any article of trade, or with the keeper of any livery- stable, shall be void, unless the same, if made at or within two miles of Chapel Hill, be made under the written permission of the president of the university or some member of its faculty; or, if made at a greater distance from Chapel Hill, under the written consent of the person who may have tlie control and authority over such student. 9. Every contract made with a student of the university contrary to the provisions of the preceding section, shall be void, and may be avoided on account of any of the matters therein contained, on the plea of the general issue. On the trial whereof, if it appear that the defendant was at the time of the alleged contract a student of the university, it shall be presumed that he was at the making thereof a minor. 10. Every such contract shall be incapable of being con- firmed ; and any promise or obligation given by such student after his arrival at full age shall be void. 11. All the real estate which has escheated or may escheat to the State, which has not been reduced into possession by the State or the president and directors of the literary fund, shall be and hereby is vested in the trustees of the university for the use of the university. 12. This chapter shall take effect from and after its ratifica- tion. Chap. 115.] vice and immorality. 597 CHAPTER 114. USURY. ' No more than six per cent, to be taken for interest. Persons taking more, to forfeit double the value forborne. No person, upon any contract, shall, directly or indirectly, No more than take for loan of any moneys, wares, merchandise, or commod- btftaken for in- ities whatsoever, above the value of six dollars, by way of dis- terest. count or interest for the forbearance of one hundred dollars for one year, and so after that rate for a greater or less sum, or for a longer or shorter time : and all bonds, contracts, and assurances whatsoever, for the payment of any principal or money to be lent, or covenanted to be performed, upon or for any usury, whereupon or whereby there shall be reserved or taken above the rate of six dollars on the hundred, as afore- said, shall be void. And every person .who, upon any contract. Persons taking shall take, accept, and receive, by way of any corrupt bargain, douw'e'uie'val- loan, or other means whatsoever, for the forbearing or giving ue tbrborne.— day of payment, a rate of interest greater than hereinbefore ' specified, shall forfeit and lose, for every such ofTence, the double value of the moneys, wares, merchandise, and other things, so lent, bargained, or exchanged; the one moiety to the State, and the other to him, who will sue for the same. Sect. 1. Usury what: mistake, 6 Ii'e. 226, 3 Dev. 30; compensation for trouble, 4 D. & B. 120. Condiliotial contract, 1 Dev. Eq. 429; interest in advance, 1 Dev. 100; exchanije of notes, 12 Ire. 334; corrupt intent, 13 Ire. 454, 4 D. & B. 313, 3 Ire. 415; loan in notes below par, 5 Ire. 692, 3 lb. 622; imlorser and indorsee, 4 D. & B. 209, lb. 313; innocent holder, 3. Dev. 30; deed in trust, 10 Ire. 428, 4 D. & B. 91; sale, 4 D. & B. 512, 1 D. & B. Eq. 613, 10 Ire. 156; contract out of State, 7 Ire. 424, 1 Hawks, 471. Relief' in equity, 2 Uev. Eq. 75, 1 Mur. 225. Penalty, 6 Ire. 390, 10 lb. 315, 4 lb. 296, 3 ftawks, 28, 3 Dev. 43, 2 Mur. 200, 2 D. & B. 474. Pkadintj, 6 Ire. 117, 7 lb. 79, lb. 118, 3 Mur. 237, 2 Hawks, 57, 4 Dev. 86. CHAPTER 115. VICE AND IMMORALITY. Section 1. No person to work on Sunday, under penalty of one dollar. Section 2. Penalty for swearing before a justice holding his court. 1. On the Lord's day, commonly called Sunday, no trades- No person to man, artificer, planter, laborer, or other person, shall, upon ^^y^ un"ier' " land or water, do or exercise any labor, business, or work, of penalty of one his ordinary calling, (works of necessity and charity only ex- g. ug' g. {^ ^^8 WASTE. [Chap. 116. cepted,) nor employ himself in hunting, fishing, or fowling, nor use any game, sport, or play, npon pain that every person, so offending, being of the age of fourteen years and upwards, shall forfeit and pay one dollar. s^vveanVbefore P" ^^ '^"^ P^*"*"" ^^''*^' P^fanely swear or curse in the hearing a justice" &c. of a justice of the peace, holding his court, the justice may -R. h. 0. 118, commit him for a contempt, or fine him fifty cents. CHAPTER 116. WASTE. Section 1. For and against -whom action lies. 2. Tenant for life aliening, still liable. 3. Judgment for treble damages and place wasted. Section 4. Action by one tenant, &c., against cotenant. 5. Heirs shall have the action. whomtcfion'' ^- . ^^ .^^^ ^^^^^ °f ^'^ste, an action shall lie at the instance lies. of him in whom the right is, against all persons committing the same, as well tenant for term of life, as tenant for term of years and guardians. Tenant for life 2. Where tenant for life or years grants his estate to another, and still continues in the possession of the lands, tenements, or hereditaments, an action shall lie against the said tenant for life or years. 8. In all such cases of waste, when judgment shall be and place waYt: against the defendant, the court shall give judgment for thrice cfl- the amount of the damages assessed by the jury, and also that the plaintiff recover the place wasted. Action by ten- 4. Where a joint-tenant or a tenant in common commits it^against co- waste, an action shall lie against him ai the instance of his cotenant or joint-tenant. 5. Every heir shall have his action for waste committed on lands, tenements, or hereditaments of his own inheritance, as well in the time of his ancestor as in his own. aliening, still liable. Judgment for treble damn tenant. Heirs shall have the ac- tion. — R. S. 0. 119.— 62 Hen. 3, c. 23; 6 Ed. 1,0.6; 11 Hen. 6, c. 5; 20 Ed. 1, St. 2. r.? v' Jf'"!'' P""- °'' I D- & B- Kq- 631, 2 Hay, 339, lb. 283, lb. 110; bu husband, ,««""" ,% ^' hftorcss, 7 Ire. \ia. 197, 4 D. & B. 179; husband of dmorcss, 1 .Jones 100. W Im tome fur, 3 Mur. 511 ; liusl)at,d and wife, Bus. 30. When restraintd in ejuiiy Chap. 117.] weights and measures. 599 CHAPTER 117. WEIGHTS AND MEASURES. Section 1. Weiglits and measures to be used. 2. Justices to procure weights and stamps. 3. Governor to procure measures. 4. Standard keeper appointed. His oath and bond. 5. Weights and measures to be tried by Section standard keeper once in two years, and certlticate given. Penalty for not having them examined. 6. For selling or buying by, when not branded or stamped. 7. Acre of land, of what measure to be. 1. No trader or other person shall buy or sell, or otherwise Weights and use in trading, any other weights or measures, than are made ™eif!llii 'g '^^ and used according to the standard prescribed by the congress 120. of the United States. 2. The justices of every county shall, at the charge of their .Justices to pro- county, provide sealed weights of hundred, half hundred, quar- 1;"? {^''''■"'l.'L ters of hundred, half quarters of hundred, seven pounds, four K. S. c. 130', pounds, two pounds, one pound, and half pound : And they ^' ^^ shall also provide a stamp for brass, tin, iron, lead, or pewter weights and measures, and a brand for wooden measures, with the letters N. C. 3. The governor shall procure for each of the counties now Governor to or hereafter to be established, the following of the measures Jlres — "ifesrc" adopted as standards by resolution of congress, approved the^o, s. i; isl-2, fourteenth of June, one thousand eight hundred and thirty-six, ^" ^^' '*' ^' ^' ^' which shall correspond with the standards furnished for this State by the secretary of the treasury of the United States, in pursuance of the said resolution, namely : a yard measure made of substantial wood, duly sealed, and marked and stamped with the letters N. C. ; to be of suitable size, and placed in a secure wooden box, with such fixtures to the same, as the governor may deem necessary for its proper use and preservation; also the half-bushel, peck, gallon, half-gallon, quart, pint, half-pint, and gill measures, to be duly stamped with the letters N. C. 4. The weights and measures, stamps and brands, thus pro- standard keep- vided, shall be kept at the court house of the respective coun- ?j'.appfiiited. ties by a standard keeper, to be elected by the justices of the bond"— r!"s. c. county courts, at least seven being present, of whom a ma- ■'^'^' ^- ^• jority may elect; and the person thus elected shall in open court take the oaths required for public officers, and also an oath of office, and shall give bond, with good and sufficient security, payable to the State of North Carolina, in the sum of two hundred dollars, conditioned for the safe-keeping of the weights and measures, stamps and brands aforesaid, and for the faithful performance of the duties of his office. 5. Every person using weights or measures, shall bring all Weights and •' "^ on 7 o measures to be 600 •WIDOWS. [Chap. 118. trieJ by stand- ard keeper, once iu two years ; and cer- tificate given. Penalty for not having tliem examined. — R. S. c. 120, s. i. For selling or buying by, M-ben not branded or stamped. — R. S. c. 120, s. 5. Acre of land, of what meas- ure to be. — E. S. c. 120, s. 6. his weights and measures and steelyards to the standard keeper of the county, where such person shall reside or trade, to be there tried by the standard; and every trader or dealer by profession, and every miller, at least once in every two years thereafter, shall cause their weights, measures, and steel- yards to be reexamined and adjusted by the standard keeper of the county, in which such weights and measures are used; and the standard keeper, when practicable, shall mark, by stamp or brand, the weights, measures, and steelyards found or made to agree with the standard, and shall give a certificate of such examination and adjustment, stating the weights, measures, and steelyards by him examined and adjusted: and every person using, buying, or selling by weights and meas- ures, who shall neglect to comply with the requisites of this section, shall forfeit fifty dollars, to be recovered, at the instance of the standard keeper; one half to his use, and the other half to the use of the county wherein the offence is committed. 6. If any person shall buy, sell, or barter by any weight or measure, which shall not be tried by the standard, and sealed or stamped as aforesaid, he shall for every such offence forfeit and pay forty dollars : and if any person shall sell and deliver any kind of grain, salt, or other articles in a less measure, than the standard, he shall forfeit and pay for each offence forty dol- lars, to the person suing therefor. 7. The measure of an acre of land shall be equal to a rec- tangle of sixteen poles or perches in length and ten in breadth, and shall contain one hundred and sixty square perches or poles, or four thousand eight hundred and forty square yards ; six hundred and forty such acres being contained in a square mile. CHAPTER 118. WIDOWS. Seotiok 1. Widows of intestates, and widows dis- senting from husband's will, may take dower. Fraudulent convey- ance not to defeat dower. To in- clude dweUing-house, unless, &c. 2. Proceedings to obtain dower. When lands lie in several counties. S. Jury not bound to assign on each tract. 4. Proceedings to be summary. B. How to allot in case of dissent. C. Allowed of rights of redemption, trusts, &c. Section 7. How obtained of lands in this and other States. 8. Dower, and land in lien, not subject to husband's debts. 9. Widow entitled to emblements. 10. Sale of dower land, to convey Ii of the jm-y shall be confirmed by the court, the title in the i lands allotted for dower shall be deemed to have been vested j in her, during her natural life, from the time she was put in | When lands lie possession ; and in case such lands, tenements, and hcredita- j ioimtfes!— R. ments lie in several counties, the court shall issue a writ to the S.c.:2i, s. 2. sheriff of the county wherein the petition is filed; and the sheriff may summon a jury from any or all the counties in which the lands may be situate, who shall allot her dower of all the lands. '. toassrn dowCT ^' "^^^ ^^^^ ^^'^'^ "°*' ^^ restricted to assign or lay off dower j on each tract, in every separate tract of land, but may allot the same in one | — R. S. 0. 121, body or several, on one or more tracts, having due regard to i the interest of the heirs and the right of the widow. 1 Proceedings to 4. The proceedings for dower shall be in a summary man- I R^ s"!'™T2T,s! Z ner; and the court shall, at the first terra when the petition is I filed, hear and determine as shall seem just and right. Pro- vided always, that the heirs or devisees shall have ten days' previous notice, and be served with a copy of the petition. Jnrvhowtoal- 5. When the widow shall have dissented from her hus- fee^nt-R?*^?. band's will, it shall be the duty of the jury, and they shall be c. 121, s. 5. SO directed, to assign and set off her dower in such manner as will derange, in as small a degree as practicable, the devises of the will. Allowed in 6. When a man shall die seized of a legal right of rcdemp- dlmptionr *^°"' ^^ °^ ^" equity of redemption, or other equitable or trust trusts, &c.— R. estate, in fee, his wife shall be entitled to dower therein, sub- . c. 121, s. 6. jg^^ 1^ valid incumbrances thereon, in the same manner as in legal estates of inheritance. How obtained 7. Whenever a widow shall be entitled to dower in lands and^other" "^ i'l this State and also in another State, and she cannot wilh- States.— R. S. out suit obtain assignment of her dower, for want of the con- ' '^' ' sent of the terre-tenants, or other cause, if her husband shall have been at the time of his death a resident of this State, or not a resident at that time of any of the States in which his lands lie, and in this last case, the most valuable part of his lands shall lie in this State; then such widow may proceed in obtaining her dower in all the lands of her deceased husband, lying in this and other States as aforesaid, in the same man- ner and under the same rules, regulations, and restrictions, as are prescribed for obtaining partition of lands devised or descended to any persons as tenants in common, when such j lands lie in this and other States as before described. ndlnii"? ^' "^''^"^ dower of a widow, and also such lands as may be not subject 'to devised to her by his will, if such lands do not exceed the I2i"'~8^" ^' '^' quantity she would be entitled to by right of dower, shall not Ch^vp. 118.] WIDOWS. 603 be subject to the payment of debts due from the estate of her husband, during the term of her life. 9. The crop at her death on the land held by a widow in To have em- dower, shall belong to her. s.TT2r:~'*' 10. No alienation by a widow, with or without covenants S;iie ofiiower of warranty, of the lands held by her in dower or of the tfriKhrunlyf gift or devise of her husband, shall have any other or further — R- S- c. I'ii, effect, than to pass her own interest in the same. 11. If a wife willinerlv leave her husband and sro away and ^'[^ eloping contniue with her adulterer, she shall be barred forever oi any baned. ■ which case she shall be restored to her claim. 12. When a widow shall dissent from her husband's will, she Widow di?- shall take as fully, and such part of his personal estate, as she r\son'i7i'tcst;n;v. would take in case of his intestacy, except that she shall not How oiintted. be entitled to more than one third ; and the share of a widow, s. 12, 13.' " ' dissenting as aforesaid, shall be allotted to her in such manner, as to create as little derangement of the provisions of the will as practicable. 13. Whenever there shall be any personal estate, undis- Not dissenting, posed of by the testator, the widow, if she may not have dis- ["tfeTatll-R. sented from the will, shall be entitled to such part of the same, S. c. 121, s. 12. as if her husband had died altogether intestate. 14. The widow, claiming under her husband's will, shall in ciaimingmider relation to creditors be considered as a legatee, and be charge- jloi's^co'isW- " able for the whole amount of her husband's estate that may ered a legatee, come to her, either as legatee, or in the manner by this chapter ""j^^ ' "' •'^^' prescribed ; and shall be bound to refund to the executors or administrators her ratable part of such debts or demands, as may be afterwards sued for and recovered, or otherwise duly made appear against the estate of her husband, in the same manner as other legatees, and by the same process. 15. If any person shall die intestate, or having left a will in Widowj! of in- which there is a residue undisposed of, and leaving a widow ing no kindred, and no kindred that are known to exist, the widow may, at t" _''^™ ■>'! *« the expiration of three years from the grant of administration P*^'^""* -^" or the will proved, file her petition in the court of equity of the county, in which administration was granted, or the will proved, against the administi'ator or executor, stating the facts of the case, and that there are no persons of kindred, to her knowledge, and praying that the surplus of the estate may be adjudged to her; which petition shall be sworn to by the Proceedings cases of petition. The court shall order notice of the fill the petition, and the substance thereof, to be published in some newspaper printed at Raleigh, for at least four months; and if, at the next term of the court, no claimant shall appear, a jury shall inquire whether there be any known kindred of the intestate; and if they shall find that there was not any kindred of the intestate, livinc; at his decease, the court shall 604 WIDOWS. [Chap. 118. adjudge and decree that the administrator or executor account witii tlie widow for the whole surplus personal estate. Pro- vided alu-ai/s, that, at any time pending said petition, any person claiming to be of kin to the intestate, may apply to the court by petition, to be made defendant to tlic widow's peti- tion, and to contest the facts stated therein. refund" ifTin*" .^^' ^^. ^'^'^ ^°^^^ '^'^'^'^ adjudge the surplus to be paid, the appear' inseven widow, in addition to the refunding bond required of distrib- years. utees, shall enter into bond in double the sum recovered, with two good sureties, conditioned that she will refund to the next of kin of her husband, the said surplus, if they make fante'^anrothl ^^^'^"^ thereof, within seven years after such decree. Provided, ers.— ii, s. c. neucrlheless, that such next of kin as may be infants, or non 121, s. 16. compos mends, at the date of the decree, may prosecute their claijn, notwithstanding the said seven years may have expired, if they shall do so within three years after their disability shall be removed ; and that such as be resident at the date of the decree out of the State, not being at that time infants or tion compos mentis, may, in the same manner, prosecute their claim within ten years after tlie date of the decree. Widowofin- 17. Where a man shall die intestate, leaving a widow, she take chargi, ^^Y t^'^^ into her charge and possession the whole of the per- &c., of person- sonal estate of such intestate, and use so much of the crop, Sbn!"''"™" ^'^0'='^'' '^'id provisions then on hand, as may be absolutely necessary for the support of herself and family, until such time as letters of administration may be granted on the estate of her deceased husband, when her right to the possession, by a"iiel'^fbr'r ^''^"^^^^ °^ *'"^ section, shall cease. Provided always, tliat she Slffiret^'' ^'^^11 app'y for administration upon such estate at the first J°'j"'^--K- S. c. court which shall be held after her husband's decease, in the ' ^' ■ , county in which he usually resided. Entitled to 18. Such widow, besides her distributive share, shall be en- anf ce?tain ar- ^^^^''^ ^° ^ Support for one year, for herself and her family, tides if on out of her husband's personal estate, to be allotted to her out MiTy retain °^ ^'l'' *^'"°P' ^tock, and provisions, if there be as much on hand ; articles.— R. s. and if there be not enough for that purpose, then the value of c. 131,8.18,21. the deficiency shall be assessed in money, and paid to her by the proper representative of the estate. She shall also be entitled (if such articles be on hand) to one bed and its necessary furniture, one loom, one wheel, and one pair of cards, which she shall be allowed to retain, immediately after the death of her husband. Proceeding.^ to • 19. For such support the widow shall file her petition in provSom-R. ^^^ county court of the county where letters of administration S. 0. 121, s. 18. or letters testamentary are issuable, at or before the first term when the same are granted ; and thereupon the court shall appoint a justice of the peace and three freeholders, uncon- nected with her, (who shall be duly sworn by some justice of the peace) for the purpose of allotting the year's support, and assessing the deficiency, if there be any. And the said justice and a majority of the freeholders shall meet on the premises, Chap. 118.] widows. 605 and on view shall make the assessment, and make dae return thereof in writing to the court. 20. Upon return of the report, if the same be not ex'cepted What decree to by the administrator, or next of kin, or any legatee, or i f "ion of report. excepted to, and the exception be disposed of, the court shall — R- s. c. 121, make such decree therein as may seem to be right and proper;^' > ■'- • and the value assessed for the deficiency and the costs of the petition shall be paid by his personal representative in prefer- ence of the debts of the intestate, if there be assets ; and if there be none, then the cost shall be paid by the petitioner. 21. If the petition be filed before the term when such letters ■mien petition are granted, and there be no crop, stock, or provisions on 'ad,iv',7' Jimt'to hand, or not sufficient, the commissioners, besides the aforesaid be allotted and specific articles, may allot to the widow any article of personal 22r'~i'9 ^" °' property of the intestate, (slaves excepted ;) and also any debt or debts known to be due such intestate : and such allotment shall vest in the widow the right to collect by warrant or otherwise, in an action of debt in her own name, the debts allotted to her. 22. The allotment of any articles in kind, or of the crop, Property allot- stock, and provisions, or of any articles of personal property '^t'! ,y'^f'i?seif° in lieu thereof, as above provided, shall vest in the widow an and family.— absolute right therein to her own use, and the use of her chil- 5j ^' °" ^^^' '• dren, but shall nevertheless be returned in the inventory of the estate, by the representative, therein noticing that the same has been allowed the widow for her support. 23. Any widow, dissenting from the will of her husband Widow dissent- within the time prescribed, may, within six months after the yet/s^mwu-*" probate, obtain a year's provision for herself and family, and ion. such other articles as are allowed widows of intestates, in the p^J^jg^"™^'" same manner as if her husband had died intestate; and it Specific arti- shall be the duty of the executor, or the administrator with the fOTthw'thf— r. will annexed, to deliver to her the articles of furniture allowed S. c. 121, s. 22. to widows of intestates, (if such articles be on hand) immedi- ately after she has declared her dissent. 24. If by reason of any levy upon the estate of the de- If estate be ceased, or other cause, the widow cannot obtain a year's pro- {^("Jg^ toa'rt'ides vision otherwise, she shall be entitled to the articles exempted exempt from from sale under execution, by sections eight and nine of the i^ig^cl'ssTi. chapter entitled " Executions," upon complying with the re- quirements of said sections. 25. Every widow having a right to dower, shall be entitled Widows de- to damages during the time the dower is detained from her, in ta'^ed ot dow- w '■'^^1 «^s*^f*^ o>^i* of undevised lands, there shall be a surplus of ail devised or such lands, and there be no personal estate undisposed of, or E^''s.''c!'i22T. "°* enough to make up his share of such estate, then such ir, 18. ' surplus of land, or as much thereof as the court shall decree, shall be sold and the proceeds applied to the making up his share of such personal estate : And provided furlhcr, that, if after satisfaction of the child's share of personal estate, out of property undisposed of by the will, there shall be a surplus of such property, then such surplus shall be applied, as far as it will go, in exoneration of the lands both devised and descend- ed, and the same shall be set apart and secured as real estate to such child, if an infant, non compos, ox feme covert. Snch child to 34. Upon the allotment to such child, of any real estate in be seized in fee. ^^g manner aforesaid, he shall thenceforth be seized thereof in fee-simple ; and the court shall give judgment severally, ill Devisees and favor of sucli of the dcvisecs and legatees, of whose lands and Uettto coi'i'tri- l<^g^cies more has been taken away than in proportion to the bution from respective values of said lands and legacies, against such of s^^e"! Tirsrw' ^^^^ devisees and legatees, of whose lands and legacies a just 20. ' ' proportion has not been taken away, for such sums as will make the contribution on the part of each and every of them Chap. 119.] wills and testaments. 613 equitable, and in the ratio of the values of the several devises and legacies ; and the costs attending the petition and pro- ceedings therein, shall be within the discretion of the court. 35. The petitioner, after such decree, shall be considered and After decree, deemed in law a legatee and devisee as to his portion, shall Jjeemed'iefatee be styled as such in all legal proceedings, and shall be liable and devise°e.— to all the obligations and duties by law imposed on such. Pro- ^{ ''■ "' ^^^' ^" vided alivaijs, that all judgments or decrees, bond fide obtained against the devisees and legatees, previously to the preferring of any petition as aforesaid, and which in law and equity were binding upon, or ought to operate upon, the lands and chattels devised or bequeathed, shall be carried into execution and effect, as if this chapter had never been passed, and the peti- tioner shall take his portion as aforesaid, completely subject thereto. And provided also, that any suit instituted in law or equity against the devisees or legatees, previously to such pe- tition, shall not be abated or abatable thereby, nor by the decree thereon, but shall go on as instituted, and the judgment and decree, unless obtained by collusion, be carried into com- plete execution ; but on the filing of the petition, daring the pendency of such suit, the petitioner, by his next friend or guardian, may become a defendant in the suit. 36. In case no petition shall be filed within two years as if such child herein prescribed, the executor or administrator with the wilH°"°.'P™- annexed, before he shall pay or deliver the legacies in the will ytars^'exe^u- given, or before paying to the next of kin of the testator any tor toproceed; residue undisposed of by the will, shall call upon the legatees, 122^'s. 22.''' °' devisees, heirs, and next of kin, and the said after-born child, by bill in equity or petition in the superior or county court, to litigate their respective claims, and shall pray the court to as- certain the share to which said child shall be entitled, and to apportion the shares and sums, which the legatees, devisees, heirs, or next of kin, shall severally contribute toward the share to be allotted to said child ; and the court shall adjudge and decree accordingly. 37. The rights of such after-born child, shall be a lien on E'si'ts of, lien every part of the parent's estate, until his several share thereof ta'tel-i't! s!"c. shall be set apart. 122, s. 24. Sect. 1. ]\[iist he proved in court of probate, 2 D. & B. Eq. 463, 6 Ire. Eq. 248. Execution: witness must sign in presence of testator, 1 Jones, 321, 10 Ire. 219, 11 lb. 632 1 lb. 551, 1 Mnr. 176 ; witnesses who, Bns. 454, 3 D. & B. 40, 2 Hawks, 368 ; attesta- tion: mark, 13 Ire. 259. Publication, 1 Mur. 258; rejmblicalion, 9 Ire. 288,12 lb. 355: bii codicil, 6 Ire. Eq. 55. Holograph, 1 Jones, 150, 4 Ire. 335, 1 Dev. 296, 1 Hawks, 384. -tj/i-ff o/ji)TOfoi(e, 6 Ire. Eq. 248. Sect. 3. 9 Ire. 170, 1 lb. 514, 3 Ire. Eq. 242. Sect. 6. Prospective only, 12 Ire. 21; construction. Bus. Eq. 246. Sect. 11. 9 he. 156, 2 Mur. 350. Sect. 15. Domicil, 9 Ire. 99, 5 Ire. Eq. 190, 1 Ire. 345. Trial of issue, cfc, 11 Ire. 49, Bus. 454, 5 Ire. 97, 4 lb. 335; after appeal, 2 Dev. 393. Evidence: declarations, 6 Ire. 212, lb. 289; handwriting of witnesses, 2 D. & B. 311. Reprobate when, 9 Ire. 256, lb. 109, 3 D. & B. 47, 3 Ire. 82, 2 Hawks, 24, 1 D. & B. 482, 4 Dev. 430. Practice, 12 Ire. 355, 1 D. & B. 186, 1 Dev. 459, 1 Hawks, 68, 2 Car. L. R. 634. Sect. 17. Bus. 277, lb. 184, 6 Ire. 267, lb. 421, 2 D. & B. 125, 2 Hawks, 237. 52 614 WRECKS. [Chap. 120. Sect. 20. Certificate of probate, 10 Ire. 186, 2 Dey. 527, 1 Jones, 111. Sect. 22. Jieroeatimi : burning, 1 Jones, 197, 10 Ire. 139; muliluliwi, 3 Ire. 303; con- ditional cancellation, 2 D. & B. 311. Sect. 23. Bus. 17. Sect. 26. B Ire. 430. Sect. 27. 3 Ire. Eq. 362, 4 Ire. 287, lb. 255, 3 lb. 155, 2 D. & B. Eq. 353, 4 D. & B. B27; went into effect, when, 5 Ire. Eq. 111. Sect. 28. Uncle and niece, 2 Ire. Eq. 330. Child dead at making of mil, 4 Ire. Eq. 320. Sect. 29, 1 Jones, Eq. 130. CHAPTER 120. WRECKS. Section 1. Wreck districts in certain counties, how laid off. County of Hyde may lay off districts for itself. 2. Commissioners of wrecks appointed by county court. Their bond and oath. 3. To reside in the district — not to be pilot; or officer under United States. 4. Their duty when ships in danger. Salvors to be paid. Amount ascer- tained by referees, if parties disa- gree. Superior court may examine award. B. Commissioners to take charge of, sell, &c., wrecked property. To render account of sales. Compensation. 6. Sale advertised; how long and where. How to proceed when property is damaging. 7. Commissioner not to take salvage. Sectiojj No person to interfere with his rights. 8. Proceedings when there is a wreck and no person claiming. Goods sold and proceeds sent to county court. If not claimed in one year, to be- long to public ti'easury. 9. Finders of wrecked property to notify commissioner. Penalty for conceal- ing it. 10. Finders, concealing stranded goods, deemed guilty of larceny. 11. Embezzlers, or receivers of such goods, punished as for larceny, &c. 12. Penalty on commissioners for abuse of trust. 13. On persons refusing to aid in saving vessels, &c. Summons proved by him. 14. Finders of wrecked property at sen, to deliver it to commissioner. Wreck districts 1. The couiities of Currituck, Carteret, Onslow, New Han- 'cmmti'^i"how over, and Brunswick, are hereby divided into the following laid off. — R. S. wreck districts, namely : the county of Currituck, into four dis- i844,^i.'58;I tricts ; the first from the Virginia line to Judy's cove ; the scc- 1, 7-' ' end from Judy's cove to Cafley's inlet ; the third from Caffey'.s inlet to the place usually called the " Sheep Pen " ; the fourth from the Sheep Pen to New inlet: the county of Carteret, into five districts; the first from the Hyde county line to Ocracoke inlet ; the second from Oeracoke inlet to a due south-east line drawn from Harbor island to the sea ; the third from said line to a due south-east line drawn from Shell point, on Barker's island, to the sea ; the fourth from the last-men- tioned line to Old Topsail inlet; the fifth from Old Topsail inlet to the Onslow county line: the county of Onslow into two districts ; the first from Bogue inlet to New River inlet ; the second from New River inlet to the New Hanover line : Ch.^. 120.] WRECKS. 615 the county of New Hanover into two districts ; the first from the Onslow county line to Deep inlet ; the second from Deep inlet to the Brunswick county line : the county of Brunswick into two districts ; the first from New inlet to Lockwood's Folly : the second from Lockwood's Folly to the South Caro- lina line : and the county court of Hyde county (a majority g'^^^'^'y^"'" j^^. of the justices being present) shall have power, at the first J ^^.^fjj ^v term of said court held after the first day of January in every j,''^^!]'^- «■ ^ year, to lay off their county into such wreck districts as to ^gi^^ cf'ssj s. them may seem right and proper. i- 1'^- 2. The county courts, in which said wreck districts are lo- ^f°^'^™f]°^'j;;^'° cated, shall appoint, whenever it may be necessary, a commis- poiuted by sioner of wrecks for each district, who shall hold his office for ™;;'?[7^,^°^;';[;,^ two years, and shall, at the time of his appointment, enter into oath. — R. S. bond with good security in the sum of fifteen thousand dollars, <=• 123, s. 2. payable to the State of North Carolina, and conditioned for the faithful performance of his duties as commissioner of wrecks ; which bond shall be deposited in the oflice of the clerk of the county court for safe-keeping, and may be sued upon by any person aggrieved by the neglect or misconduct of such commissioner. Before entering on the duties of his office, the commissioner shall, before the court that appointed him, take the oaths prescribed for the qualification of public officers, and the oath of office. 3. Each commissioner shall reside in the district for which ^°jj?^'j'^|,"„t he is appointed, unless separated by navigable waters, and to be pilot, or then at a distance not exceeding three miles from such dis- °?^"_^^'^^|_ trict; and no person, who shall hold any office or deputation 0.123, s. 2, 3. under the United States, or who is a pilot, shall act as a com- -^^**' <=• ^^' missioner of wrecks. 4. The commissioners, on the earliest intelligence given. Their duty that any ship or other vessel is stranded, or in danger of being ■^'^danger!^ ^ stranded, shall command any sheriff or constable nearest the coast where such ship or other vessel shall be, to summon as many men as shall be thought necessary to the assistance of such ship or vessel, who shall be under the direction of the master or owner : and all persons, except commissioners, who S^l™rs to be shall assist in preserving any ship or other vessel in distress, P'" " or their cargoes, shall, within forty days, be paid a reasonable reward by the commander or owner of the ship or vessel in distress, or by the merchant, whose vessel or goods shall be saved ; and, in default thereof, the vessel or goods shall remain in the custody of the commissioners or salvors, until all rea- sonable charges be paid, or security given for that purpose to the satisfaction of the parties ; and in case the parties shall ^^'J^'J^j^'^y'^gf. disagree, touching the amount of the reward to be paid to the eVecs, 'if parties persons employed, the commander of the vessel saved, or the Jisagiee. owner of the goods, or merchant interested, or his agent, shall choose one indifferent person, and also the salvors shall nominate one other, who shall adjust and ascertain the same ; and if the persons thus chosen cannot agree, they shall choose 616 WRECKS. [Chap. 120. one other indifferent person as umpire to decide between them ; Snperior court and if such adjustment shall be unsatisfactory to either nartv. awiVrd. — R. s. "6 shall declare his dissent; and thereupon the said award isiri'DsTs ^'^^" ^^ returned to the next superior court of the county <''■•' '^- ■ where the same was made, and the court may cause the same to be reexamined, and pronounce such judgment thereon as they may deem just : and in the mean time, the commissioner of wrecks shall retain in his hands, in order to satisfy said judgment, the amount awarded by the referees or umpire. Commissioners 5. The commissioner shall be the only proper person to S, sen'&cT*^' ^^^^ charge of, advertise, or sell, any vessel, cargo, or other wrecked prop- Wrecked property that may be stranded or cast on shore in his "'^y- district. Provided, that the captain, owner, merchant, or con- signee, or their agent may, during the absence of the com- missioner, or if he refuse to act, take charge of, or sell or remove such vessel, cargo, or other wrecked property ; and To render ac- each commissioner shall provide himself with books, and shall count of sales, record in them all such sales by him made, and shall deliver to the captain, owner, or merchant, or other person concerned, a true account of all sales which shall be made ; and every commissioner shall receive for selling any wrecked property, Compensation, five per cent. On the amount of sales : and in case of the re- Zl-'isirfc: '^o^'^^ of any wrecked property by the owner, merchant, con- 58, s. 4. ' ■ signee, or his agent, from the custody of any commissioner, without a sale, then such commissioner shall receive two and and a half per cent, on the amount of the value of such prop- erty so removed ; which amount shall be ascertained in the same manner as the amount of the reward to be paid to the salvors, as provided in the preceding section. tisedM'mv"]on.r ^^ "^'i^n any commissioner shall undertake to sell any and where. —" wrecked Or stranded property, he shall advertise the sale f' ^'ilil'^^'r;, thereof, not less than twenty nor exceeding thirty days, at the D> "^ 1044, C. JO, i-U 1 111 ii«i J ' s. 6. court house door, and at other public places in three captain's districts in his county, and should said property be adjudged above the value of one thousand dollars, he shall advertise the same in some newspaper (if any), and at one other public place of the towns in the federal district of which his county forms a part. Provided, hoivever, that the commissioners of the first and second wreck districts in the county of Currituck, may advertise in some newspaper published in Norfolk, Vir- ginia, in cases where they are required to advertise in a news- Howtoproceed paper. Provided furlher, that in case the property is in a il'damngi'ng.- damaged state, the commissioner may appoint two disinter- 1854, c.° ested merchants, to survey the same, and upon their recom- mendation, may sell by advertising for ten days ; and the com- missioner shall pay the merchants so appointed a reason- able compensation, to be retained by him out of the proceeds of sale. Commiss'rnot 7. No Commissioner shall, in any case, be entitled to ?<^- Noper.'onTJf''' ^agc Oil property saved; and for the discharge of all the duties interfere with which may be imposed on him, he shall be entitled to receive Chap. 120.] wrecks. 617 only the commissions allowed him by this chapter. And any iiis rights. — person who shall interfere with the rights and privileges of any ^^'^^>''-^^<^-^- commissioner, shall be liable to him for such damages as he shall sustain, by reason of such interference. Provided, that the commissioner, when such person may have been employed in his absence, or in case of his refusal to act, shall tender to the person thus engaged, a reasonable compensation for the trouble and expense the person thus employed may have in- curred. 8. If any vessel or other property be cast ashore, within the When there is limits of any district, no person being present to claim the p^^^j^^i^^j"^" same as owner, the commissioner of such district shall take i"g. what to be possession thereof, and cause a true description of the marks, numbers, and kinds of such goods to be advertised in one or more public gazettes, for the space of eight weeks ; and if no person shall claim the same within twelve months, public sale shall be made thereof, but if perishable, the goods shall be sold after being advertised as hereinbefore directed; and after com- Goods sold and missions and all reasonable charges are deducted, the residue county court. " of the money, with an account of the whole, he shall transmit to the office of the county court of the county in which such vessel may be stranded or goods saved, and the clerk shall make a record and keep an account of the same, for the ben- efit of the owner, who, upon proof of his property, to the sat- isfaction of the commissioner associated with two justices, shall, by their warrant or order, receive the same, paying to the clerk of said court one per cent, for his trouble ; and should V ^°*- •^i"""':'^' , , f^ . , . 1 1 ^ 1 "'' ^^^^ year, to no person claim the same withm a year and a day trom the belong to pub- date of the advertisement, then the clerk, holding such money, g'^g'^"''?,?;" shall transmit the same, after deducting one per cent, for his trouble, to the treasurer of the State, for the use of the State. 9. Whfen any person shall find any stranded property on or ^™'^^''* °'^, near the seashore, and no owner appears to claim the same, erty, to notify he shall, as soon as possible after saving it, give information commissioner. to the nearest 'commissioner of ^VTecks, and to him deliver the same, for which he shall be entitled to his reasonable salvage, to be ascertained in manner before directed ; and should any person finding stranded goods or other property as aforesaid. Penalty for conceal them, or convert the same to his own use, or fail, for ^"^''■'''"S '_t^„ ten days thereafter, to give information thereof to the nearest s. 8. commissioner of wrecks for his county, he shall pay to the commissioner, discovering the same, five times the value of such property, to be recovered before any jurisdiction having cognizance thereof. 10. If any person shall find any stranded goods or property, ceajin'^s'trand- on or near the seashore, and shall, secretly, or without notice ed godTis of such finding given to the commissioner, take the same into on"vco,fv!— li. his possession with the intent to defraud the owner or other S. c. 123,' s. 9. person of the said property, or any interest therein ; or if, hav- ing taken possession of such goods or property, without such intent, he shall afterwards, with such fraudulent intent conceal 52* 618 Embezzlei's, or receivers of such goods, punished as for larceny, &c. — R.S.c". 123,8.9. Penalty on comm'rs for abuse of trust. ' — R. S. c. 123, s. 10. On persons re- fusing to aid in saving ves- sels, &c. bummons proved by eomm'r. — K. S. c. 123, s. 10, Finders of wrecked prop- erty at sea, to deliver it to eomm'r. — R. S- c. 123, s. 11 CONCERNING THE REVISED CODE. [ClIAP. 121. the same, or fail to give notice to the commissioner, he shall be deemed to have stolen the same goods or other property; and the said goods and property shall be deemed and held, as to all persons and for all purposes, to have been stolen. 11. If any person shall embezzle, steal, or receive, knowing the same to have been embezzled or stolen, any such goods or property, he shall forfeit five times the value of the same to the commissioner; and on conviction thereof shall suffer as if convicted of larceny. 12. If any commissioner, by fraud or wilful neglect, abuse the trust reposed in him, he shall forfeit and pay treble dariia- ges to the party aggrieved thereby, to be recovered by action on the case ; and shall thereafter be incapable of acting as a commissioner. 13. If any sheriff', constable, or other person, summoned as hereinbefore provided, shall refuse or neglect to give the assist- ance required for the saving any vessel or her cargo, he shall forfeit and pay the sum of ten dollars, to the commissioner ordering such duty. And such commissioner, on trial for the recovery of the same, may, by his own oath, prove the sum- mons of such person. 14. Whenever any property shall be found on board any vessel at sea, which has been wrecked, or has been abandoned by the crew, and the property is afterwards brought into the State, the person in whose possession the same may be, shall ' deliver it to the commissioner of wrecks of the district, into which said property may be brought, to be disposed of as stranded property. Sect. 5. Owner has right to take possession, wreck sale, 18 Ire. 394. Ire. 100. Risht of way to purchaser at CHAPTER 121. CONCERNING THE REVISED CODE. Section 1. Revised code, -when to t.ake effect. 2. Former acts on subjects embraced in revised code, repealed after January 1, 1856. 3. Repeal not to affect rights accrued, or suits coiinnenced. i. Effect on oflcnces connnitted, and penalties incurred. 5. On suits and prosecutions commenced for offences. 8. Repealed acts not revived thereby. 7. Effect of repeal on persons holding offices. 9. Wliat acts not repealed. Section 9. Revised code, how published. Undor superintendence of commissioners. Chapters alphabetically arranged. To contain nets passed at this ses- sion. Also federal constitution, State constitution, declaration of rights, Slecklenburg declaration of inde- pendence, laws of Congress for cer- tifying records, and naturalizing for- eigners. 10. Ten thousand copies to bo published. 11. Superintendents to bo paid. 12. Revised code to be eviev. S63; Stater. Welsh, 3 Hawks, 404. It is the province of the Court to decide upon the existence and proper construction of tlie statute of anotlier State, Moore v. Gwynn,5 Ire. 187. What the law of another State is, when not contained in a statute, is matter for the jury. lb. LAWS OF NATURALIZATION, PASSED BY THE CONGRESS OF THE UNITED STATES, AS DIGESTED BY THOMAS F. GORDON, ESQ., AND CORRECTED BY ALL THE LAWS PASSED UP TO THE FOURTH OF MARCH, 1855. 625 Article 1. Declaration by alien previous to nat- uralization. (Goi'don, Art. 1488.) 2. Exception as to aliens residing within the United States before 29th of Jan- uary, 1795. (1489.) 3. Exception as to aliens residing within the United States between 18th of June, 1798, and 14th April, 1802. (1490.) 4. Further provisions respecting such aliens. (1491.) 5. Exception as to aliens residing within the United States between 14th April, 1802, and 18th June, 1812. (1492.) Article 6. Exception as to alien minors. (1493.) 7. Oath rerpiired from alien. (1494.) 8. Court to be satisfied of certain quali- fications. (1495.) 9. Renunciation of titles and orders. (1496.) 10. Provision relative to widow antl chil- dren of alien. (1497.) 11. Minor children of naturalized citizens become citizens, when. (1498.) 12. What courts may administer the nat- uralization laws. (1499.) 13. Five years i-esidence necessary, when. (1500.) Art. 1. Any alien being a free white person, may be admit- ted to become a citizen of the United States, or any of them, on the following conditions, and not otherwise: That he shall have declared on oath or atBrmation before the supreme, supe- rior, district, or circuit court of some one of the United States, or of the territorial districts of the United States, or a circuit or district court of the United States, or before the clerk of either of such courts, (1) two (2) years at least before his ad- mission, that it was bond fide his intention to become a citi- zen of the United States, and to renounce forever all allegi- ance and fidelity to any foreign prince, potentate. State, or sovereignty whatever, and particularly by name, the prince, potentate. State, or sovereignty whereof such alien may at the time be a citizen or subject. (3) 2. Any alien who was residing within the limits, and under the jurisdiction of the United States before the twenty-ninth day of January, one thousand seven hundred and ninety-five, may be admitted to become a citizen, on due proof made to some one of the courts aforesaid, that he has resided two years at least within and under the jurisdiction of the United States, and one year at least immediately preceding his a|5plication, within the State or territory where such court is at the time held ; and on his declaring on oath or affirmation, that he will support the constitution of the United States, and that he doth absolutely and entirely renounce and abjure all allegi- ance and fidelity to any foreign prince, potentate. State, or sovereignty whatever, and particularly, by name, the prince, potentate, State, or sovereignty whereof he was before a citi- 53 Declaration by alien previous to naturaliza'n. (1) Act May 26, 1824, s. 3. (2) lb. s. 4. (3) Act 14th April, 1802. Exception as to aliens resid- ing within the U. Slates be- fore 29th Jail. 1795. 626 zen or subject ; and, moreover, on its appearing to the satis- faction of the courts that during the said term of two years, he has behaved as a man of good moral character, attached to the constitution of the United States, and well disposed to the good order and happiness of the same ; and where the alien, applying for admission to citizenship shall have borne any hereditary title, or been of any of the orders of nobility in the kingdom or State from which he came, on his moreover mak- ing in the court an express renunciation of his title or order of nobility, before he shall be entitled to such admission : all of (1) Act April which proceedings required in this proviso to be performed in 14,1802,3.1. the court, shall be recorded by the clerk thereof. (1) Exception as 3. From this condition (Art. 1), is exempted any alien be- to aliens resid- . J. ,., \ ■" .J. r J inginU. States ing a tree white person, who was residing within the limits JmiTms^'ttlid ^"^ under the jurisdiction of the United States at any time 14th April,' between the eighteenth day of June, 1798, and the fourteenth ?2)* Act March ^^^ °^ April, 1802, and who has continued to reside within 28, 1804, s. 1. the same. (2) Further pro- 4. Nothing in the first section, act 22d March, 1816,* shall ing sucraUens" ^® construed to exclude from admission to citizenship, any ' free white person who was residing within the limits and un- der the jurisdiction of the United States at any time between the eighteenth day of June, one thousand seven hundred and ninety-eight, and the fourteenth day of April, one thousand eight hundred and two, and who, having continued to reside therein without having made any declaration of intention be- fore a court of record as aforesaid, may be entitled to become a citizen of the United States according to act 26th of March, 1804. Whenever any person without a certificate of such declaration of intention as aforesaid, shall make application to be admitted a citizen of the United States, it shall be proved to the satisfaction of the court, that the applicant was residing within the limits and under the jurisdiction of the United States, before the fourteenth of April, one thousand eight liun- dred and two, and has continued to reside within the same, or he shall not be so admitted. And the residence of the appli- cant, within the limits and under the jurisdiction of the United States for at least five years immediately preceding the time of such application, shall be proved by the oath or afHrmation of citizens of the United States; which citizens shall be named in the record as witnesses. And such contin- ued residence within the limits and under the jurisdiction of the United States when satisfactorily proved, and the place or places where the applicant has resided for at least five years as aforesaid, shall be stated and set forth, together with the names of such citizens in the record of the court admitting (3)ActMarch ^he applicant; otherwise the same shall not entitle him to be 22, 1816, s. 2. considered and deemed a citizen of the United States. (3) to'a'hens'"eSi'd ^' '^^^^ ^"7 ^^^^^i being a free white person, who was * The first aection of act 23 J March, 1816, -was repealed by act 24th May, 1828. APPENDIX. 627 residing within the limits and under the jurisdiction of the ing within the United States, between the foiu-teenth day of April, one thou- F' ^^''^W:^^' sand eight hundred and two, and the eighteenth day of June, one April, 1802, thousand eight hundred and twelve, and who has continued to »°d^ is'h June, reside within the same, may be admitted to become a citizen of the United States, without having made any previous dec- laration of his intention to become a citizen. Provided, that whenever any person, without a certificate of such declaration of intention, shall make application to be admitted a citizen of the United States, it shall be proved to the satisfaction of the court, that the applicant was residing within the limits and under the jurisdiction of the United States, before the eigh- teenth day of June, one thousand eight hundred and twelve, and has continued to reside within the same, or he shall not be so admitted : and the residence of the applicant within the limits, and under the jurisdiction of the United States, for at least five years immediately preceding the time of such appli- cation, shall be proved by the oath or affirmation of citizens of the United States ; which citizens shall be named in the record as witnesses : and such continued residence within the limits and under the jurisdiction of the United States, w^hen satis- factorily proved, and the place or places where the applicant has resided for at least five years, as aforesaid, shall be stated and set forth, together with the names of such citizens, in the I record of the court admitting the applicant ; otherwise the same shall not entitle him to be considered and deemed a citi- 2Vii28'f*2 zen of the United States. (1) > . • ■ 6. Any alien, being a free white person and a minor, under Exception as the age of twenty-one years, who shall have resided in the '°''"'°™'""*' United States three years next preceding his arrival at the age of twenty-one years, and who shall have continued to reside therein to the time he may make application to be admitted a citizen thereof, may, after he arrives at the age of twenty-one years, and after he shall have resided five years within the United States, including the three years of his minority, be admitted a citizen of the United States, without having made the declaration required in the first condition of the first sec- tion of the act to which this is in addition (Art. 1), three years previous to his admission. Provided, such alien shall make the declaration required therein at the time of his or her ad- mission ; and shall further declare, on oath, and prove to the satisfaction of the court, that, for three years next preceding, it has been the bond fide intention of such alien to become a citizen of the United States ; and shall, in all other respects, (j, ^ct May comply with the laws in regard to naturalization. (2) 26, 1824, s. 1. 7. An alien shall, at the time of his application to be ad- Oatii required mitted, declare, on oath or affirmation, before some one of the '"™™ ''''<^°- courts aforesaid, that he will support the constitution of the United States, and that he doth absolutely and entirely re- nounce and abjure all allegiance and fidelity to every foreign [ prince, potentate, State, or sovereignty, whatever, and particu- 628 APPENDIX. \ar\j, by name, the prince, potentate, State, or sovereignty, 14 1802 s?i wliereof lie was before a citizen or subject ; which proceedings Con. 2. shall be recorded by the clerk of the court. (3) Court to be g. The court admitting such alien shall be satisfied that he tain quaiifica- has resided within the United States five years, at least, and tions. within the State or territory, where such court is at the time held, one year at least ; and it shall further appear to their satisfaction, that, during that time, he has behaved as a man of a good moral character, attached to the principles of the constitution of the United States, and well disposed -to the (4) Act April good order and happiness of the same. The oath of the ap- Con.'3. '^ ' plicant shall, in no case, be allowed to prove his residence. (4) Eenunoiation 9. In case the alien, applying to be admitted to citizenship, of titles and shall have borne any hereditary title, or been of any of the orders of nobility, in the kingdom or State from which he came, he shall, in addition to the above requisite.s, make an express renunciation of his title or order of nobility, in the court to which his application shall be made, which renuncia- tion shall be recorded in the said court. Provided, That no alien, who shall be a native citizen, denizen, or subject of any country, State, or sovereign, with whom the United States 14' 1802' s^i"^ shall be at war, at the time of his application, shall be then Co'n. 4. ' " ' admitted to be a citizen of the United States. (1) Provision reia- 10. When any alien, who shall have complied with the and chiTdrarof conditions specified in article No. 1, and who shall have pur- aliens, sued the directions prescribed in section 2, Act 14th April, 1802,* may die, before he is actually naturalized, the widow and the children of such alien shall be considered as citizens (2) Act March ^^ ^'^"^ United States; and shall be entitled to all rights and 26th, 1804, s. 2. privileges as such, upon taking the oaths prescribed by law. (2) Minor children 11. The children of persons duly naturalized under any of citizen^be-^'^ the laws of the United States, or who, previous to the passing come citizens, of any law On that subject by the government of the United when. States, may have become citizens of any one of the said States, under the laws thereof, being under the age of twenty- one years, at the time of their parents being so naturalized or admitted to the rights of citizenship, shall, if dwelling in the United States, be considered citizens of the United States ; and the children of persons, who now are, or have been, citi- zens of the United States, shall, though born out of the limits and jurisdiction of the United States, be considered as citizens of the United States. The right of citizenship shall not descend to persons whose fathers have never resided within the United States. And no person heretofore proscribed by any State, or who has been legally convicted of having joined the army of Great Britain during the war of the Revolution, shall be admitted a citizen, without tiie consent of the legisla- ture of the State in which such person was proscribed. Chil- dren of persons naturalized before the 14th of April, 1802, • This second section was repealed by act 24th May, 1828. It provided for the regis- try of the alien. APPENDIX. 629 under age at the time of their parents' naturalization, were, if '^) ^gi'^P^' dwelling in the United States on the 14th of April, 1802, to campieii v. ' be considered as citizens of the United States. (3) 6*0 "^Ttt' "'' 12. Every court of record, in any individual State, having what court common law jurisdiction, and a seal, and clerk or prothono- may administer tary, shall be considered as a district court within the meaning tioliaw"" "'^ of the naturalization act ; and every alien, who may have been naturalized in any such court, shall enjoy the same rights and privileges, as if he had been naturalized in a district or circuit ,^. ^^^ j^ ^ court of the United States. (4) 14, 1802, s. 3. 13. No person who shall arrive in the United States after Five 3'ears' February the 17th, 1815, shall be admitted to become a citi- necessary, zen of the United States, who shall not, for the continued wh""- term of five years, next preceding his admission, have resided f\^if ^^2*^*^ within the United States.* 26tiiJune, 1648, c. 72. * Tlie oath of naturalization, when taken, confers the rights of a citizen. It is not necessary that there should be an order of court admitting the alien to become a citizen. Campbell v. Gordan et al., 6 Cr. 176. Nor that it should appear by the record of naturalization that all the requisites presented by law for the admission of aliens have been complied with. Stark n. Chesapeake Ins. Com. 7, Cr. 520. The courts in natu- ralization cases receive testimony, compare it with the law, and judge on both law and fact. Hence their judgment, entered on record in legal form, is complete evidence of its own validity, and conclusive in all courts. Spratt v. Spratt, 4 Pet. 393. The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States. Con. art. 4, s. 2. Citizens of the United States have a right to expatriate themselves in time of war as well as of peace, until restrained by Congress. Such right is subject to the control of the legislature, and to render the exercise of it valid, there must be an entire departure from the United States for a purpose which is not illegal, nor in fraud of the duties at home of the emigrant. Talbot v. Jansen, 3 Dall. 133; Santissima Trinidad, 7 Wheat. 648; see U. S. v. Williams, 4 Hall's Law Journal, 461; U. S. v. Gillies, 1 Pet. 161. A citizen of the United States, by becoming a citizen of another country, does not thereby cease to be a citizen of the United States, nor is he absolved from his original allegiance. Ibid. He may acquire in a foreign country the commercial privileges attached to his domicil, and be exempted from the operation of commercial acts em- bracing only persons resident in the United States or under its protection. Murray «. Oharming IJetsy, 2 Cranch, 120. 53' INDEX. ABATEMENT OF SUITS. Suits not to abate by death or marriage of parties, 64. nor by death of executors or administrators of parties, 64. may be revived within two terms after death, 64. in what time, in case of contested will, or grant of administration, 64. Eight of action to survive to executors, &o., 290. Suits for penalties, or damages merely vindictive, to abate, 64. Heirs shall have action for waste done in lifetime of ancestor, 598. Improper venue in indictments to be pleaded in abatement, 232. Suits revived in equity, on death of parties, 190. Kevived in certain cases, by defendant against codefendant's representatives, 191. Proceedings in such cases, 191. Actions when to abate, by reason of the amount sued for, 165. Death between verdict and judgment, if entered in two terms, not error, 182. Administrator d. b. n. may have execution on judgment got hy former administrator, 182. Attachment not to abate for want of form, 94. Attachment issued without bond and alBdavit, abated on plea, 98. Process of justice not to abate for want of form, 365. Plea in abatement received only on aiSdavit or proof, 170. By and against whom suits to be revived, 64, 65. On marriage of feme defendant, husband made party, 64. V Husband made party plaintiff to give security for costs, 64. Actions brought in improper county, abated on plea, 164. Service how made In ejectment, on death of party, 65. Suits allowed for injuries, where death ensues, 65. Damages in siich case, how assessed, 65. To whom they shall belong, 66. Action to be brought within one year, 66. ABSTRACTS OF TAX LISTS. See Rtvmue. Foi-ms of, funiished by comptroller, 518. Abstrsicts of Usts of all taxes to be sent to comptroller before 1st April, 518. What set forth, in abstracts, 518. ACCESSORIES. Accessories before the fact punishable as principals, 195. to felonies, before the fact, when, where, and how tried, 212. after the fact, 212. may be punished, though principal be not attainted, 213. ACCOUNT. Aotion of, allowed against executors, &c., of guardians, 180. Accounts in petition, audited and settled by order of court, 179. taken in certain suits, against executors, administrators, guardians, sheriffs, &c., 182. at law, stated and paid for as in equity, 182. 632 INDEX. ACRE OF LAND. What shall he the measnre of an acre of land, 600. ACTS OF ASSEMBLY. See Lines, Public Printing. ADJUTANT-GENERAL. See Militia, Public Arms. Salary of, 453. ADMINISTRATOR. Sec Executors and Administrators. ADMINISTRATOR PENDENTE LITE. See Executors and Adminislratvrs. ADMINISTRATOR, SPECIAL. See Executors and Administrators. ADULTERY. See Divorce and Alimony, Dower, Widow. ADVANCEMENTS. See Legacies, tfc, Frauds and Fraudulent Conveyances. Advancements of slaves to children good without writing, in certain cases, 500. to children of intestates to be accounted for, 370. Children advanced in real or personal estate, to account, 248. Schedule of advancements rendered on oath, 370. ADVANCEMENTS OF ESTATES OF INSANE. See Idiots and Lunatics. AGRICULTURE AND GEOLOGY. The North Carolina Agricultural Society incorporated, 66. shall elect a president and other officers, who shall hold till others chosen, 67. shall provide a place for holding annual fairs, 67. ^1,500 appropriated yearly, if like sum be raised by society, 67. may hold property of S50,000 value, 66. County Agricultural Societies may be formed, and become corporations, 67. how organized — -with what officers and term of office, 67. to continue corporations during will of legislature, 67. when organized, certificate thereof filed with clerk of county court, 67. organization to be certified to public treasurer, 68, entitled, one society in each county, to $50 on certain conditions, 68. funds to be applied in premiums, &c., 68. to transmit to treasurer annual statement of money received, and expended, 68. ■ shall annually publisli their experiments, 68. secretary to keep a record of their proceedings, 68. county societies may hold property of the value of 810,000, 67. surveyor in geology, &c., appointed by governor, 69. his duty — expense of survey not to exceed $5,000 a year, 69. surveyor to deliver leeturet, &c., 69. ALIEN HEIRS. shall not prevent other relations, being citizens, from inheriting, 249. ALIMONY. See Divorce and Alimony. AMENDMENT. All proceedings may be amended before judgment — on what terms, 69. Adverse party may answer amendments of substance, 70. Formal defects amended after judgment, 70. Certain defects cured after verdict, 70. Such and like defects amended wherever the record may be, 71. On demurrer formal defects disregarded, unless specially expressed, 71. May be amended after demurrer, 71. No amendment, without order of court, 71. Returns of officers, &c., amendable in matters of form, 70. The provisions of Ch. " Amendment" extend to all proceedings at law, 71, Bail not discharged by amendment of process, unless, &c., 107. Supreme court may amend any proceeding at law, 199. What may amend in equity cases, after cause set for hearing, 199. May remand a cause for amendment below, 199. May amend by making proper parties, 199. Proceei'.iiigs in "Forcible Entry and Detainer" amendable, 297. Instruments of writing merely informal, not lost for want of form, 170. Indictment not ijuaslied, or judgment stayed, for formal objections, 230. INDEX. 633 APPEALS AND PEOCEEDINGS IN THE NATURE OF APPEALS. Allowed from county to superior court, on giving security, 72. From orders appointing or removing guardians, 72. On probate of wills, and granting letters of administration, 73. From orders establisliing or discontinuing roads, ferries, &c., 73. To stand for trial first term, when, 73. Clerk of county court to file transcript in superior court, 73. Appellant may also file it, 73. How to proceed when vacancy in superior court clerk's ofiice, 73. If appellant fail to file transcript, appellee may, 73. And have judgment affirmed, with double costs, 73. After appeal, clerk of county court may issue subpcenas, 73. Defendant in debt, &c., appealing for delay, to pay additional i per cent, interest, 74. Plaintiff appealing and not recovering more, to have no costs, 1i. May be ordered to pay costs, 74. Bonds for appeal and prosecution sent up as parts of record, and judgment thereon, 74. Clerk of superior court to give receipt for transcript, and indorse day of delivery, 74. Shall issue subpcenas if required, 74. Secordari, &c. Clerk of superior court to take security of persons suing -writs ofrecordari, 74. Clerk of county or superior courts to take security of persons suing certiorari, 75. Writs of error. Superior courts may gi-ant -writs of error, proceedings therein, 75. Shall render final judgment and issue execution, 75. Security to be given by plaintiff in error, 75. Writs of error in county or superior courts to be brought in five years, 75. Any one of several defendants may appeal, 76. Not dismissed for want of form, 74. Penalty of f 100 on clerks, &c., in fault respecting appeals, 74. Allowed the State in issues of bastardy, 109. In appeals and recordari by defendant from justice's judgment, court may require plaintiff to secure costs, 181. From justice's judgment to be tried first term, 181. In case of default, what judgment plaintiff to have, 181. On appeals from justice, judgment against sureties of party cast, 181. Plaintiff appealing from justice, and recovering no greater sum, to recover no costs, 181. From county to superior coui't, tried de novo, when, 181. Allowed from judgment to correct error in registration, 246. From justice concerning injuries to stock, tried de novo, 295. Allowed by one or more in case of issue with insolvents, 337. From judgment on report of damages assessed in case of railroads, &c., 358. judgment assessing value of materials to repair railroads, &c., 359. school committee to board of superintendents, 384. From judgment of court-martial, 406. proceedings for damages done by mill-ponds, 429. judgment of commissioners of navigation, 462. justice in inferior offences of slaves, 571. mayors, 588. justice's judgment to county or superior court. See Justices of the Peace. APPEALS TO SUPREME COURT. Causes from what counties carried to Morganton, exception in criminal cases, 197. Allowed from superior to supreme court on giving security, 75. Summary judgment on bond of appellant, 75. Insolvent free person convicted of capital offence, may appeal -\vithout security, 75. Supreme court to enter judgment on uispection of the record, 76. Allowed at discretion of court from interlocutory judgments and decrees, 76. On appeals from such judgments, &c., no judgment entered in supremo court, 198. What part of the record transmitted on such appeal, 76. May proceed, in court below, with residue of the cause, 76. On appeal to supreme court, clerk to file transcript, 76. On his failure, appellant may file it, 76. 634 INDEX. APPEALS TO SUPREME COURT, ( Conlinua?). On his failure, appellee may file it, 76. Or obtain certificate of such failure, and have double costs, "6. Dismissed for failure to prosecute after notice, 199. Allowed on final decree of divorce or alimony, 254. on grant of alimony pending suit, 264. What supreme court may examine on such appeal, 254. APPRENTICES. Orphans and certain other children of small esttvtes, bound out, 77. Certam children of free negroes to be bound, 78. To whom and for what time, 78. ,'^-Duty of masters in maintenance, education, &c., 78. Binding to be by indenture, 78. Remedy thereon for apprentice, 78. Master of children of color to give bond not to remove them out of the county, 78. And to produce them when required, 78. On failure, to be sued and whole penalty recovered, 78. In certain cases, may be taken to adjoining county and bound, 79. When colored mariner apprentice may be carried ont of the county, 79. What shall excuse non-production of apprentice, 79. Mastership may be sun-endered on terms, 79. Master's remedy, when apprentice after eighteen absents himself, 79. Penalty for harboring orphans, and not having them bound, 79. Apprentices to be kept by pilots, 463. ARMS. See Slaves ajul Free Negroes. ARMS, PUBLIC. See Public Arms. ARMS TAXED. See Revenue, 510. Wearing, or keeping. See Slaves and Free Negroes, 577. ARREST. Bail may arrest and surrender principal before final judgment, 106. Process in civil cases not to be executed on Sunday, day of election, or muster, 168. Nor on jurors or witnesses, 168. No person to be arrested upon a presentment, 229. Members of Assemblj', not to be arrested except for crime, 308. ._, Females not to be arrested for debt, 339. ARSENAL. See Public Arms. Malicious burning of, punished with death, 203. ARSON. See Crimes and Punishments. ASSAULT AND BATTERY. See Trespass. ASSESSORS OP REAL ESTATE. See Revenue, Towns. 1. ASYLUM FOR DEAF MUTES AND BLIND PERSONS. Incorporated — How styled, 81. To be governed by board of seven directors and have a president, 81. Who shall compose the board, 81. Vacancies filled by the governor, 81. Corporate powers vested in a president and directors — their powers and duties, 81. Time of meeting — members may resign, 82. Removal from Wake — when vacancy created thereby, 82, Board to report to Assembly, 82. To report to literary board the counties bound to provide for pupils, 82. Public treasurer to report to literary board what counties have levied tax, 82. What persons received as pupils, 82. County tax to be levied when parents cannot pay, 82. Other persons admitted as pupils, when, 82. Pupils from other States, 83. Penalty for failure to levy tax, or to collect and pay it, 88. INDEX. 635 ASYLUM FOR DEAF MUTES AND BLIND PERSONS, (Qmtinved). No county bound to provide for more tlmu five, S3. On failure to levy tax, amount to be deducted from scliool fund, 83. $«,000 from literary fund yearly appropriated to institution, 63. Faculty may confer degrees, 83. Funds to be deposited with public treasurer, 83. 2. ASYLUM FOR THE INSANE. " The Insane Asylum of North Carolina " incorporated, 8i. To be under the control of nine directors, cliosen by Assembly — their powers, 84. For -what period chosen — How apportioned through the State, Si. Three to reside in Wake county, 84. All to meet yearlj' in November, 84. To appoint a superintendent — His qualifications, and residence, 64. Terra of oflice, eight years — how removed, 84. Board to appoint other officers, and fix their salaries, 65. Shall make by-laws, and reports, &c., 85. Superintendent to control subordinates, 85. Wake directors to be executive committee — their powers, 65. Board to advertise v/hen asylum is completed, 85. Sheriffs to report number of insane in jail, 85. Rule for selecting patients — curableuess, and not poverty, 65. What insane shall be removed from jail to asylum, 86. Those confined on criminal charges to be removed, SG. What indigent admitted; proceedings therefor, 86. Affidavit of insanity — Precept to bring up patient for examination, 86. Proceedings of justices on the return, 86. Patient to be removed, unless bond is given, &c., 86. Examination to be sent with patient, 87. Form of the warrant, 87. Interrogatories and answers transmitted to superintendent, 67. Board convened and pi-oceedings, when indigent insane sent to asylum, 87. Paying patients from other States, when admitted, 88. What necessary to entitle such patient to admission, 88. Form and condition of the bond required, 88. Money not spent, to be refunded, 89. Bonds to keep ins.ane from asylum, filed in office of county court, 89. Damages, when bond sued, 89. Form and condition of bond, 89. On breach, patient to be sent to asylum, 89. Two guardsmen only to be employed, unless, &c., 89. What insane deemed indigent, 89. County to pay their expenses into public treasury, 90. How county may be reimbursed, 90. County to levy tax for support of iusane, 90. Failure to levy, or to collect and pay tax a misdemeanor; proviso, &c., 90. Amount in certain cases deducted from school fund, 90. Guardian or friend giving bond under section 23, &c., how repaid, 90. Money to support asylum paid out of public treasury, 90. Accounts of its funds to pass through comptroller's office, 594. Money belonging to asylum paid into public treasury, 90. Donations, how applied, 91. On what warrant treasurer of asylum to pay, 91. Treasurer to give bond, 91. Board and executive committee to record their proceedings, 91. Tax to support xsylum paid into public treasury, 91. Who shall be official visitors, 91. TTACHMENT. May issue for debt or damage, when process cannot be served by reason of absence, 92. 636 INDEX. ATTACHMENT, ( Continued). Also for citizens of the State ngaiiist non-residents, 92. Not to issue without bond, which with affidavit must be returned to court, 92. Form of attachment and bond, 93. Not abated for want of form, 94. Defendant maj' replevy on giving bail — Power of bail, 94. Perishable property to be sold, and proceeds deposited, &c., 94. Garnishee summoned; to answer on oath, 94. Judgment against, for efiects in his hands, 94. Proceedings against, when ho fails to appear, 95. Judicial attachment to issue, when, 95. Giimishee denying he has any property, &o., issue made up, 95. Proceedings wliere attachment levied on property claimed by another, 95. Specific article, confessed by garnishee, valued by jury, and judgment for the value, 95. In what cases garnishee exonerated by delivery of the articles, 95. Judgment conditional, where money or articles are due, or deliverable at a future day, 96. Publication six weeks, to be made for defendant, 96. When judicial process may issue, 96. Attachment may issue against absentees exempt from arrest, 9G. Such persons may plead without replevying, 96. Also for injuries to person and property, in certain cases, 96. Within what time such attachment to issue, 96. To be dismissed if improperly issued, 97. Lien on vessels in certain cases, and attachment therefor, 99. May be attached, although owner be present, 99. Property in hands of executors, administrators, and trustees, attachable in equity, when, 98. Creditors may file bill before end of two years, 98. On decree, to give refunding bond to executors or administrators, 98. Lien on property from time bill filed, 96. Court may require creditor to indemnify executor, &c., against loss, 98. Upon what proof and terms plaintiff may have decree, 99. Debtor may replevy before final decree, 99. Matters in the bill to be specially stated on oath, 99. Attachment before justices of the peace, rules therefor, 97. Returnable in thirty days, 97. Replevy bond how conditioned, 97. Garnishee to appear and answer, 97. Perishable estate to be sold, 97. Specific articles confessed by garnishee, how valued, 97. How and when garnishee exonerated by delivering specific articles, 97. May stay execution, 97. Claimant of property may remove proceedings to county or superior court, 97. If garnishee deny possession of property, &c., proceedings to be removed to county or superior court, 98. Publication made for defendant, 98. Attachment bond to be filed by justice, 98. Real estate attached and condemned by justice, proceedings to be returned to county court, 98. Attachment may issue against persons charged in bastardy and failing to appear, 108. Alias may issue on sheriff's return of " defendant not to be found," 168. If estate be attached and defendant fail to appear, judgment entered, 1C8. Estate taken on judicial attachment and not replevied, sold on final judgment, 168. If judgment in attachment bo unsatisfied by sale, execution to issue, 168. ATTORNEYS AT LAW. To be licensed by judges of supreme court, 102. Persons from other States licensed, when, 102.' To take oaths, 102. Form of oath, 435. To pay a tax for license to practice, 102. Tax, how disposed of, 514. To pay costs of suit dismissed for want of declaration, 102. INDEX. 637 ATTORNEY AT LAW, {CmfinuecT). Guilty of fraud, to pay double damages, 102. Not to take greater tax fees than allowed, 102. Justice of the peace not to practise law in his court, 102. Attorney appointed justice not to practise in his court, 103. One attorney only to speak, unless allowed by court, 170. May argue to the jury both law and fact, 170. Power of attorney to be produced and filed, unless, &c., 171. If necessary to be retained, what to be done, 171, Fees of attorneys at law, 546. Attorney assigned to defend slave, paid by county, 578. not to hold the office of sheriff, 558. ATTORNEY-GENERAL AND SOLICITORS. Attorney-general elected by Assembly for four years, 26. To attend supreme court and prosecute in third circuit, 100. Solicitors elected by Assembly for four years, to prosecute, &c., 100. Vacancy in solicitor's office durmg recess filled by presiding judge, 100. County Solicitors. Appointed by county court — Term of office and duty, 100. To examine clerk's and register's offices to see they are properly kept, 101. Unless excused by a majority of the justices, 101. To report condition of the offices — Paid for services, 101. May be paid by county for extra services, 141. To sue for penalties incurred by superintendents, &c., of common schools, 388. Also for penalties incurred by ministers, justices, and clerks, for neglects respecting licenses and certificates of marriage, 391. Prosecuting officers to collect forfeitures of sheriffs for escapes in criminal cases, 106. To sue trustees mismanaging charitable trusts, 118. Fees for prosecuting in such cases, 118. Attorney-general may file a bill to restrain corporations from excesses, 138. To enforce duties, prevent frauds, &c., and remove dishonest ti-ustees, 138. On absence of attorney-general, supreme court may appoint State counsel, 200. Duty of attorney-general and solicitors on escape of criminal, 209. To institute suits against guardians, when, 320. Compensation for such services, 320. Duty of attorney-general and solicitors, respecting infants under fifteen marrying without con- sent, 392. Fees for services in such cases, 393. Oath of attorney-general, form of, 435. State solicitor, form of, 435. county solicitor, form of, 435. Duty of prosecuting officer on information of fraud on the revenue, 517. Attorney-general and solicitors to prosecute suits for injuries to bridges, 540. Salaries of attorney-general and solicitors for the State, 543. Fees of, on circuit, 546. attorney-general in supreme court, 546. county solicitor, 546. attorney for the State in civil cases, 547. Prosecuting officer paid for attending courts of oyer and terminer, 573. AUCTIONS AND AUCTIONEERS. Auctioneers appointed by county court to give bond for discharge of duty, 103. By towns, to give like bond, 104. Duties of— To render semi-yearly to clerk, sworn account of sales and tax, 103. Vacancy, how filled, 104. Penalty of S200 for acting without appointment, 104. What sales exempt from auction tax, 104. Fees of, — not to exceed two and a half per cent., 104. One per cent, of town auctions, to be paid to town, 104. Tax on auctioneers, 611. 54 090 INDEX. BACKGAMMON TABLE. See Crimes and Punishments, 218. BAIL. Bail-bond, when and how taken and returned, 105. Sheritr becomes special bail, when, 105. Bond deemed assigned to plaintiff, without indorsement, 105. Bail deemed special, and proceeded against by sci.Ja., 105. Shall not plead non est factum, but on oath, 105. May arrest and suiTender principal before final judgment, 106. Discharged thereby in ciiil cases, but not in criminal after default, 1C6. Person surrendered may give other bail, which may be excepted to, 106. Consequence of allowing exception, in civil cases, 106. In criminal cases, sheriff shall forfeit $100, 106. If defendant be released, sheriff is indictable, 106. Duty of prosecuting officer to collect forfeiture, 106. Bail, how to discharge themselves when principal in custody, 106. Debtor may be detained where confined, by order of court, 106. Surrendered after final judgment, not to be committed, but on affidavit, as in ca. sa., 106. Imprisoned for want of bail, may give it: bond returned to next court, 107. Matters of defence good for principal, good for bail, 107. Costs to be paid by bail in certain cases, although discharged, 107. Not discharged by amendment of process, unless, &c., 107. Defendant in attachment may replevy by giving bail^Power of bail, 84. ejectment to give bail, &c., or not allowed to plead, 166. In criminal cases to be taken by officer when offence bailable, 230. Sheriff not to become bail, in criminal cases, 230. Persons convicted of misdemeanors allowed bail pending appeal, 230. Bail in civil cases before justices — see Justice of the Peace, 362. Suits on sci.fa. against bail to be brought in four years, 373. In proceedings against tenant of mill, owner may give bail and defend, 428. Defendant in equity, when held to bail, 187., Surety for insolvent's appearance may surrender his principal, 338. BAIL-BOND. SeeSmZ BAKERS' BREAD. See Tmcns. BANK-NOTES. See Banlcs, Currency. BANKS. See Currency. Banks not to draw checks payable otherwise than in specie, 237. Not to issue bills or certificates of deposit for less than three dollars, 237. Notes of banks issuing bills, &c., less than three dollars, not to be received by treasurer, 238. Specie required by charter, to be himafide paid before banking, 238. Certificate of payment to be deposited with governor, on pain of misdemeanor and penalty, 238. Issuing false certificate, misdemeanor, 238. Balance in treasury to be deposited in banks, 593. Agencies of banks out of the State, taxed, 514. BARS. See Gates and Bars. BASTARD CfflLDREN. \ Single woman big with child, &c., refusing to declare the father, to give security, &c., 107. If she declare tiie father, he shall give security to perform the orders of court, 108. Persons charged to be recognized to court, though child be not bom, 108. Process to issue against person charged failing to appear, 108. Issue to ti'y paternity may be made up, 108, If found against him, or makes no issue, he shall maintain child and pay costs, 108. Qn default of securing the same, committed to prison, 109. Appeal allowed the State in such issues, 109. Examination to be in three years after birth of child, 109. Execution may issue for maintenance after ten days' notice, 109. Illegitimate child, legitimated by court — Decree to be recorded, 109. Effects of, — legitimate in all respects as to the father, 109. Settlement of illegitimate children, where to be, 472. INDEX. 639 BASTARD CHILDREN, {Continued). Free negroes convicted of bastardy, hired out to support tlie child, 579. Children not to become illegitimate by divorce, 253. Illegitimate children to inherit from their mother, 2'49. And to inherit from each other, 250. Dying without issue, mother to be heir, 250. BEEF. See Inspections, BENEFIT OF CLERGY, ABOLISHED, 207. BIGAMY. Offence defined — misdemeanor — how punished, 205. -" BILLIARD TABLES, TAX ON, 510. Not included among prohibited gaming tables, 218. BILL OF EXCEPTIONS. May be tendered to judge, who shall sign and seal it, 179. BILL OF REVIEW. Within what time petition to rehear in supreme court may be filed, 199. Bills of review and writs of error allowed within two years, &o., 199. Bills of review, &c., in other courts to be brought in five years, 193. BILLS, BONDS, AND PROMISSORY NOTES. Bills, bonds, and notes for money, negotiable as inland bills of exchange, 110. Action in case may be brought in name of indorsee, 110. Or in debt, where the obligee may thus sue, 110. Orders in writing — drawer or acceptor hable thereon. 111. Protest for non-acceptance and notice necessary before suit against drawer. 111. Da3's of grace on bills, &c., except those payable on demand. 111. Protest of notary, &c., evidence of demand, &c., 112. Indorsees of negotiable securities, liable as sureties, 112. Interest on bills, bonds, notes, contracts, &c., when and from what time given, 111. , Contracts for delivery of specific articles to bear interest. 111. Bonds payable to clerk, &c., for the use of suitors, suable in name of State, 112. Indorsee may sue maker and indorser, jointly or severally, 177. And their executors and administrators, 177. BLANK FORMS. To be printed for offices of governor, treasurer, secretary State, comptroller, and adjutant-gen- eral, 490. BLIND PERSONS. 9,^6 Asylums. BOARD OP VALUATION. See Revenue, 519. BOATS AND CANOES. Trespass on boats, canoes, &c. — Penalty and damages, 113. Slaves guilty to be whipped, 113. Penalty not to extend to certain cases, 113. Number of boats prescribed for pilots, 463. BONDS. See Bills, Bonds, and Promissory Notes. BONDS, OFFICIAL. See Official Bonds. BONDS FOR BENEFIT OF SUITORS. Bonds payable to clerks, &c., for benefit of suitors, suable in name of State, 112. BONDS FOR PROSECUTION OF SUITS. Bond with security to be given before process issued, else suit dismissed, 166. To be given when husband becomes party plaintiff, 64. Real plaintiff in ejectment to give prosecution bond, or suit dismissed, 165. Judgment on bond against sureties of plaintiff faihng in suit, 184. Bonds for prosecution, &c., to be sent up as part of the record, 74. BONDS OF THE STATE. See PMic Debt. BOOK DEBTS. In what actions, for what sums, and within what time, book accounts proved by plaintiff or defend- ant, 113. 640 INDEX. BOOK DEBTS, ( Gmlinued). By executors or administrators, and how proved by thena, 114. Time enlarged for such proof, if creditor die in two years afjer delivery, &c., 114. Copies of .accounts, evidence iu all courts, &c., 114. Unless notice given to produce original, 114. Oath to prove book debt, 435. Book debt oath for executors or administrators, 435. BOOKS. Law-books procured by county courts, 165. Penalty on clerk for abusing them, 155. Books, &c., when ordered to be produced by courts of law, 177. Consequence of failure to produce, &c., 177. , BOUNDARY. See Counly Boundaries. Survej's ordered in case of disputed boundary, 183. BOUNDS — PRISON. S<}e Prisoners. BOWLING-ALLEY, tax on, 610. BRAND. See Cattle ajid Other Stoch, Inspections, TVeir/hts and Jfeasures. BRIBERY AT ELECTIONS. See General Assembln. BRIBERY OF JURORS, 209. BRIDGES. See Eoads, Ferries, and Bridges. Burning or attempting to burn — see Crimes and Punishments. BROKERS, tax on, 513. BUGGY, tax on, 510. BURGLARY, 203. BURNING, OR ATTEMPTING TO BURN HOUSES. See Crimes and Panislmentt. BURNING WOODS, AND HUNTING. No person to fire woods, except his own — Notice to be given, 115. Misdemeanor, and penalty therefor, 116. Hunting deer out of season on land of others — Penalty, 115. Penalty for hunting on other's lands after being forbidden, 115. Hunting by fire-light, or permitting slaves, &c., misdemeanor, 221. Accomplice in fire-hunting giving evidence, discharged, 221. Slaves not to hunt with a gun, 569. BY-LAWS. See Corporations, Toims. CANALS CUT BY LITERARY FUND. See Literary Fund. CANALS FOR DRAINING, &c. &(X Draining, aiul Damming Low Landt. CANALS FOR NAVIGATION — INJURIES TO, 222. Lands for, how condemned. See Internal Improvements, CANCELLING— INSTRUMENT. See Comptroller. CANOES. See Boats and Canoes. CAPITOL. See Seal of Government. CARDS, PLAYING, TAX ON, 510. CARRIAGE, TAX ON, 510. CART-WAYS. In what cases and how obtained, 640. CASTRATION, WITH MALICE. See Crimes and Punishments, 203. CATTLE, AND OTHER STOCK. Owners to have mark or brand and record it, IIG. Penalty for killing stock in woods, and not showing head, ears, and hide in two days, 110. Cattle not to be driven into this from another State, between March and November, 116. Penalty therefor $5, 116. Non-residents within five miles of, or owning land in the State, exempt from penalty, when, 116. Cattle not to be driven from certain places into the highlands, when, 116. INDEX. 641 CATTLE, AND OTHER STOCK, (Contmual). When driven from one part of the State through another, to be certified healthy, &o., 117. Misdemeanor for justice to grant certificate, without affidavit, 117. Stone horses, and stone mules, two years old, not to go at large — Penalty, 117. Stock killed on railroads — remedy for before a justice, 117. For sheep injured by dogs, 117. Ignorance of dogs' vicious habits, no defence, 117. CAVALRY. See MilUia. CERTIORARL Clerks of county or superior court to take security of persons suing a certiorari, 75. CHAIN CARRIERS. See Entries and Grants, 264. Fees of, 652, 553. CHAIRMAN OF COUNTY COURT, 155. CHAIRMAN OF SCHOOL COMMITTEE. See Lilerartj Fund. CHALLENGE TO FIGHT DUEL. See Crimes and Punishments, 211. CHALLENGES. Of jurors in civil cases — see Courts, County and Superior, 163. In criminal cases — see Criminal Proceedings, 234. CHAMPERTY. Buying or selling pretended rights, titles, &c., prohibited, 271. CHARITIES. Trustees of charities to return account of their trusts to county court, 118. On failure, or misuser of trust funds, to be sued, 118. Or may be sued at the suggestion of two citizens, 118. Fees allowed prosecuting officer in such cases, 118. Charitable donations for insane, how appUed, 91. Charities devoted to the poor and afflicted, not taxed, 506. CHEROKEE INDIANS. Contracts with, to be in writing, &c., 301. CHILDREN, BORN AFTER PARENTS' WILL MADE. To take as on intestatry. See Wills and Testaments. Infants unborn may take by deed, 270. CHURCHES, INJURIES TO. See Crimes and Punishments, 223. CIRCUS RIDERS AND EQUESTRIAN PERFORMERS, tax on. See Revenue, 514. CHECKS. See Due Bills and Check. CLAIMS AGAINST COUNTY. To be numbered by clerk, and copy yearly furnished chairman, 141. CLERK AND MASTER IN EQUITY. Appointed by judges of superior courts, for four years, 123. Proviso for longer term, in certain cases, 123. In certain cases, judge may commission two justices to qualify, and ttike bond, 124. To take like oaths, give and renew like bonds, as clerks of superior court, 123. Oath of clerk and master, 435. Liable to same remedies and penalties as clerks of superior eourt, 124. Shall keep his office withui one mile of court house — Penalty $100, 124. To keep fair records — May administer oaths, 124. To certify appointments of guardians by courts of equity, to county court, 319. Clerk and master may act as notary and certify under seal of office, 432. To hold office till successor appointed, 444. Fees of clerk and master, 651. Suits on his bonds to be brought in six years, 373. Suits on bonds, and summary remedy against clerk and master — see Official Bonds. Money remaining in hands of — see Money remaining, cfc. CLERK OF BOARD OF INTERNAL IMPROVEMENTS. See Internal Improvement. CLERK OF GENERAL ASSEMBLY. See General Assembly. Pay of, 544. 54* 642 INDEX. CLERK OF TREASURY. See Ireasurer. His salary, 543. CLERKS OF COUNTY AND SUPERIOR COURTS. Elected every four years, in like manner as members of Assembly, 119. Sheriff to declare the persons elected, 119. Contested and tie elections, decided by majority of justices, 120. Clerks to give bonds and take oaths, or others appointed, 120. Vacancies in clerkship of county or superior courts, how filled, 120. Bond may be accepted by twelve justices, in certain cases, 120. Judge appointing clerk in vacation, may empower two justices to take bond, &c., 120. Bond, and oaths subscribed, to be returned to next court, 120. Bond to be in penalty of $15,000, with two able sureties, &c., 120. To be proved in their respective courts, how — where deposited, 121. Keeper of bonds to have them registered and kept as records, 121. To bo renewed annually, 121. Receipts for public money to be shown before renewal, 121. Penalty for acting without qualifying, 121. Going out of office to transfer records, &c., to successor, 122. Or, in case of vacancy, to whom the court may name, 122. Judge may order delivery of records, &c., of superior court, 122. Penalty, $1,000, for not delivering, 122. Office to be kept at court house, 122. Clerks to resign to their respective courts, 122. may be removed, &c., and others appointed, 122. Removing from the county, may be removed from office, 122. Failing in their duties, court may have them done at their costs, 123. Deputy to act as clerk, on his death in vacation, 123. Clerks of superior court to issue subpceuas, if required, after appeal to his court, 74. On appeal to supreme court, clerk of superior court to file transcript, 76. Penalty of SlOO on clerks, &c., failing in their duty in regard to appeals, 74. Offices of clerks to be examined by county solicitor, 101. Statement of fines, &c., to be rendered by clerks, yearly, on 1st of January, 140. Penalty of S500 for failing to make return, or pay over money received, 140. County court may pay clerk for extra services, 141. Fees for services concerning corporations created by letters patent, 136. Penalty of S200 on clerks issuing process without security, 165. To docket names of parties, sureties for costs, and bail, 165. Clerk of superior court to publish appointment of special term, 160. To certify appointments of guardians in his court to county court, 319. Clerks to receive same fees for report, as masters in equity, 179. To give notice of State's daj', 234. Executions to be issued in six weeks, under penalty of SlOO, 280. Clerk of county court, omitting any duty about election of governor, to pay $100, 314. To summon guardian failing to renew bond or render account, 319. Shall be clerk of board of superintendents — His duty, 383. AUowed for services, and paid out of school fund, 389. To record commission of commissioner of affidavits, 125. Certificates of marriage to be recorded by clerk of county court, 391. Penalty on clerk issuing license to marry female under fifteen years, 393. Clerks of county and superior courts may act as notaries and certify under seal of office, 482. To hold office till successors appointed, 444. Mames of justices at qualification of clerk of county court to be recorded, 446. acting justices furnished to secretary by clerk of county court, 489. On request to hand over deeds, and register fees, ten days after court, 497. To furnish sheriffs, ten days after court, with orders appointing overseers, 684. Fees of clerks of county court on mesne process — on final process, 547. For proving, recording, filing, searching, certifying, and entering on minutes, 547. For copying — bonds — licenses — notices, &c., 548. JTees of clerks of superior court, 548. INDEX. 643 CLERKS OF COUNTY AND SUPERIOR COURTS, ( Cmtinued). Clerks to have no fees on capias in certain cases, 548. In certain State cases to liave only half fees, biS. To keep a copy of their fees posted up in office, 550. May issue execution for fees, in certain cases, 550. After judgment defendant may pay the money to clerk, 184. Clerk to pay it to party entitled, 165. Fees due clerks by residents, to he collected in three years, 374. Malicious burning clerk's office, punished with death, 203. Suits on bonds of clerks to be brought in six years, 373. Suits and summary remedy on bonds and by motion — see Official Bonds. Money remaining in hands of clerks — see Money remaining, if c. Duties of clerks of county court respecting the revenue — see Revenue. CLERKS OF SUPREME COURT. Appointed by judges for four years, 197. To give bond for discharge of duty, and take oaths, 197. Form of oath, 436. Offices of clerks, where kept, 197. Pay for recording such papers as the court may direct, 198. May certify opinion, and issue execution, &c., when, 198. Certificates of decisions transmitted by clerk to court below, 199. Failing for twenty days after rise of court to transmit, &c., to pay $100, 200. Shall issue executions for costs iu supreme court, 199. Tax on attorneys' licenses expended by clerk for books, 487. Salary and fees of clerks, 550. Money remaining in office, &c., — see Money remaining, COAL. See Pilots, Revenue. COAL VESSELS — THEIR PRIVILEGES. See Filoia. COLLATERAL RELATIONS. Tax on property of — see Revenue, 507. Representatives of — see Descents, Legacies, (fc. COLOR OF TITLE. See Limitations. COMMISSIONERS OF AFFIDAVITS. Clerk, and clerk and master to be commissioners to take affidavits, 124. Governor may appoint commissioners to take probate of deeds, in other States, 125. Shall take and subscribe an oath to be filed in secretary's office, 125. Their power .and authority, 125. Commission to be recorded by secretary, and certified to clerks of county courts, and recorded, 125. Certified copies of appointment or removal, evidence, 125. Fees of commissioners of affidavits, 553. COMMISSIONERS IN PROCEEDINGS TO DRAIN, &c., LOW L.AJ^DS. See Draining and Damming Low Lands. COMMISSIONERS OF NAVIGATION. See PUots. OF TOWNS. See Towns. OF WRECKS. See Wrecks. Form of oath, 436. COMMISSIONERS, PUBLIC. Not to become contractors on pain of misdemeanor, 210. COMMISSIONERS TO CONDEMN LANDS FOR INTERNAL IMPROVEMENT. See Initiiml Improvement. COMJIISSIONERS TO DIVIDE LANDS. See Partition. Form of oath, 436. COMMISSIONERS TO ENFORCE REVENUE PENALTIES. See Revenue, 508. COMMISSIONS OF COMMISSIONERS OF WRECKS. See Wrecks. OF EXECUTONS AND ADMINISTRATORS, 288. OF GUARDIANS, 317, 322. 644 INDEX. COMMISSIONS OF SHERIFF. See Revemie, Salaries and Fees, Shves and Free Negroa. To have no commissions on justices' executions, 550. COMMON LAW. Wliat parts of tlie common law in force in the State, 126. COMMON SCHOOLS. See Literary Fund, and (hmmon Schools. COMPTROLLER. Elected biennially by General Assembly, 126. To give bond in $20,000, 126. Bond taken by governor, and deposited with treasurer, 126. To take the oaths of officers, 126. His oath of office, 437. To settle all public accounts, and keep books, 127. To keep an account with treasurer and individuals, 127. Public money recovered by suit, paid to treasurer, and receipts filed with comptroller, 127. Balances of accounts to be amiually stated and reported, 127. To report yearly a printed statement of the treasury accounts, 127. To be published, in non-legislative year, in two papers, 126. May administer oaths in certain cases, 128. No warrants, &c., to be paid, unless firet entered and certified by comptroller, 128. Shall keep instrument for cancelling vouchers, 128. Sheriff to render to comptroller the amount of each kind of tax, 626. To deliver him a list of money received from clerks, and unlisted taxable?, 626. Comptroller to report to treasurer amount due from each tax receiver, 525. shall certify a copy thereof to clerk of county court, 525. With what taxes he shall charge and credit tax receivers, 525. Suspecting fraud or perjury concerning revenue, to inform, &c., 627. Copy of sheriff's bond to be furnished comptroller by clerk, 528. Copy of clerk's bond to be furnished comptroller by register, 528. Comptroller how to proceed when copy not furnished by register, 528. Sheriff failing to settle, comptroller to report his account, and add $1,000, 628. Monthly settlement to be made between comptroller and treasurer, 593. No receipt of treasurer good, without comptroller's indorsement, 593. Comptroller to indorse on certificates of State stocks, when credited to treasurer, 694. To furnish clerks with printed forms of abstracts, 518. Salary of comptroller, 542. CONGRESS. See Members of Congress. CONSTABLES. To be annually elected in each captain's district — At what time, 129. Qualifications of electors — Judges of election, how appointed, 129. Notice to be given — Returns of election, made to county court, 129. Number of constables in each county and district, 129. To qualify before county court, and give bond, 129. Names of justices present to be recorded, 446. Bond, how conditioned — Oaths to be taken, 130. Form of his oath, 437. If not elected, or election tied, appointed by county court, 129. Contested elections decided by county court, 129. Vacancies in office filled by county court, 130. Power and duty in executing process, 130. Shall execute notices issued by justices, 130. Returns of, to be evidence, 130. Special constables, in certain cases, appointed by justice, 130. Constables failing to execute process, or making false returns, guilty of misdemeanor, 22(. Or acting without authoritj', 226. Penalty for neglecting to execute executions from courts-martial, 407. Liable for whole debt put in his hands, when, 445. Sworn in office, to be deemed rightfully in, &c., 444. Exempt from working on roads, 541. # INDEX. 645 CONSTABLES, ( Cmtinued). Fees of constables, 551. Town constables appointed, 589. Their oatli, powers, and duties, 590. Constable attending petit jury, to be sworn — for what purpose, 164. Form of his oath, 440. Foi-m of oath of constable of grand-jurj'-, 440. Suits on constable's bonds, to be brought in six years, 373. bond, and damages — see Official Bonds* Summary remedy against — see Official Bonds. CONSTABLES OF TOWNS. See Towns. CONSTITUTION OF STATE, 12. OF UNITED STATES, 34. CONSPIRACY OF SLAVES. See Slaves and Free Negroes. CONSTRUCTION OF WORDS AND PHRASES, IN DEEDS AND WILLS. See Estates— Wills and Testaments. CONSTRUCTION OF WORDS AND PHRASES IN STATUTES. See Statutes, cj-c. CONTEMPT OF COURT. What shall be a contempt of court, 226. Particulars of contempt to be specified, &c., 226. CONTRACTS. To sell land, and leases required to be in writing, must be registered, 246. For sale of land, slaves, and leases for mining, void, unless in -writing, 300. Contracts charging executors, &c., personally, to be in writing, 801. Or one with the debt, &c., of another, 301. ' With Indians, to be in writing and witnessed, 301. All gaming or betting contracts, void, 302. Securities, also, for money or property lent for betting, 302. . Females under fourteen, and males under sixteen years, incapable of contracting marriage, 393. "/ Contracts to purchase offices, void, 444. by court for building bridges, binding, 537. presumed to be satisfied after ten years, 375. with minors, students of the university, void, unless by permission, 596. Hovr avoided, — incapable of confirmation, 596. Overseers leaving employment, to forfeit wages, 449. CONVEYANCES. See Deeds — Frattds and Fraudulent Conveyances. COOPERS AND COOPERAGE. See Jnspections. COPY SHEET. Dates and figures, how reckoned in estimating fees of clerks, &c., 654. CORDIALS. Dealers in, tax on, 611. CORONER. One or more appointed bj' a majority of justices, 131. Names of justices present to be recorded, 446. Oaths and bond of, — Bond in $2,000, renewed annually, 131. Form of oath, 437. Vacancies in recess filled till next court by three justices, 131. Special coroner, in certain cases, appointed by three justices, 131. Bond to be proved and registered, 131. Coroner sworn in office, to be deemed rightfully in, until, &c., 444. T» hold inquests: His duty on such occasion, 131. Physicians and surgeons may be summoned to assist, 132. And shall be paid for their services, 132. When no sheriff, coroner to act and be liable as sheriff, 132. Notices to be served by coroner, if sheriff be interested, 164. Where no sheriff, coroner to hold elections, 308. Fees of coroner, 551. 646 INDEX. COROKER, { Continued). Duty of coroner, when sheriff removed from office — see Sherijff, 659. To give bonds, and take oaths, &c., 569. Suits on coroners' bonds to be brought in six years, 373, bond, and damages — see OJJicial Bunds. Summary remedy against — see Official Bonds. CORPORATIONS. General powers of, 133. First meeting, how notified when not specially provided, 133. Lands may be held and conveyed, 134. To continue three years after charter expires, to close business, 134. On expiring, receivers or trustees appointed to settle affairs; their powers, 134. To pay debts and distribute surplus, 134. Equity jurisdiction over receivers, &c., given to court, 134. What executions to issue, and what may be sold — Franchises, &o., 134. Who deemed highest bidder, when franchise sold, 135. OlBcer selling to convey right of fare, toll, &c., 135. And deliver property connected with franchise, 135. Purchaser to have same remedy as corporation for damages, &c., 135. Liabilities of corporation to continue after sale, 135. Charitable, literary, mining, and manufacturing, how created, 135. Corporators to enter into articles of agreement, 135. Shares not less than $50, 136. Such corporations created by letters patent issued by governor, 136. Notice of incorporation and substance of articles to be published, 136. Fees of clerk of court and private secretary, 136. No dividends, if debts exceed two thirds of assets, 136. Letters patent to be recorded by secretary — copies evidence, 136. Letters prima facie evidence of incorporation, 136. Such companies forbidden to bank, 137. Conveyances by deed, how made by corporations, 137. Suits against, at law, commenced by summons — In equity, by subpoena, 137 Process, on what officer or member to be served, 137. Infoi-raation against — what to be set forth therein, 137. Costs to be secured, in information by relators, 137. Supreme court may ascertain the facts, how, 138. Attorney-general may file bill to restrain corporations from excesses, 138. To enforce duties, prevent frauds, &c., and remove dishonest trustees, 188. Corporations not to exist more than thirty years, unless, &c., 138. Debts of, not extinguished by dissolution, 138. Shares in, to be personal estate, 138. Non-user for two years, forfeiture of charter, 138. Not to issue certificates, &c., nor any kind of circulation, 237. Word " person " may embrace corporations, 581. Burning their houses in which archives are kept, &c., felony, 203. COSTS. Plaintiff appealing and not recovering more, to have no costs, 74. May be ordered to pay costs, 74. To be paid by attorney when suit dismissed for want of declar.atioD, 102. By bail in certain cases, althougli discharged, 107. To be secured by relators informing, 137. In certain cases of prosecution paid by county, 141. County wherein offence done, to pay costs and receive fines, &o., 141. Plea in abatement overruled, plaintiff to recover costs, 170. Parly continuing case may be ordered to pay costs, 170. On final judgment witness tickets taxed with costs, 176. Party cast, taxed with but two witnesses to prove same fact, 176. Party recovering to liave judgment for costs, 176. What reckoned among costs, 176. INDEX. 647 COSTS, ( Continued). In petitions to be paid as court may direct, 176. In suits for slander, and assault and battery, if damages be under 34, no greater costs recovered, 177. In trespass, ejectment, &c., against several, those acquitted to recover costs, unless, &c., 177. In appeals, &c., from justice, court may require plaintiif to secure costs, ISl. Plaintiff appealing from justice, and not increasing judgment, to have no costs, 181. Charges of survey to be taxed as costs, 183. •Judgraeut for costs against plaintiff and sureties, failing in suit, 184. Decreed at discretion of court of equity, except iu certain cases, 190. May be decreed against sureties of plaintiff, 190. Prosecutor in certain cases, ordered to pay costs, 235. To be paid by defendant in criminal cases, when, 236. Rale as to costs in cases of divorce, 252. Pay of commissioners for draining, &c., low lands, taxed among costs, 258. Costs of appeals, in petitions to drain, &c., paid as court shall direct, 258. On executions to be paid to clerks under penalty of $40, 280. Of habeas corpus, how and by whom paid, 327. On proceedings to condemn land, &c., paid by company, 360. On malicious warrants for the peace and petty offences, justice may order prosecutor to pay costs, 367. Wliere damage by ereotiou of mills under $b, how paid, 429. Plaintiff appealing in mill oases, to pay costs, unless he recovers more, 429. Of partition paid as court m.ay decree, 453. Of informations adjudged to the party succeeding, 496. In appUcation for roads, ferries, &c., paid as court may decree, 533. Bill of costs to show each item when execution issued therefor, 550. Owner of slaves prosecuted, liable for costs, 577. On warrant against executor, &c., returned to court, how adjudged, 288. COUNCIL OF STATE. See Governor and Council. COUNSELLORS OF STATE. See Governor and Council. Their pay, 544. COUNTERFEITING. See Crimes and Punishments. COUNTY BOUNDARIES. Disputed lines between counties, how settled, 139. Commissioners to be sworn: Persons employed to be paid, 139. MiUtary boundaiy to be the true one, till otherwise fixed, 139. COUNTY COURTS. See Cmrts, County and Superior. COUNTY REVENUE AND CHARGES. Tax for county purposes to be laid by majority of justices, 140. Collected by sheriff as State taxes are, 140. Fines, forfeitures, &c., paid to county trustee, 140. Tax of $1 on indictments and suits; and $2 on equity suits, 140. Fines, penalties, forfeitures, &c., to be collected by sheriff and paid in three months thereafter, 140. Statement of fines rendered by clerks, yearly, on 1st January, 140. Penalty of $500 on clerks, sheriffs, &c., failing to pay over county money, 140. Costs of prosecutions to be paid by county, in certain oases, 141. Witnesses for State paid by county, when, 141. County wherein offence is done, to pay costs and receive fines, &c., 141. County court may pay sheriff, clerk, or solicitor, for extra services, 141. Claims against county to be immbered by clerk, and list yearly furnished chainnan, 141. Penalty of $20 on clerk, for failure: His fee for the service, 141. Statement of county money received and paid out to be set up in court house, 142. County tax levied for deaf mutes, &c., when parents cannot pay, 82. Penalty^ for failure to levy tax, S3. County tax levied to support its indigent insane, 91. Justices to lay tax to build court houses, jails, c&c, 145. Also for school purposes, 384. Collected by sheriff, payment how enforced, 384. To lay tax to pay patrol, 469. 648 INDEX. COUNTY REVENUE AND CHARGES, {Qmtinued). To support the poor, 471. May lay tax to pay jurors, 142. Power of court iu disposing of county funds, 142. Committee of finance for tlie county may be appointed, 142. Their duty and powers, 142. To investigate county finances and report to court: — Their pay, 142. Officers failing to settle with committee after ten days' notice, to forfeit $100, 142. COUNTY SOLICITORS. See Atlorneij-General and Solicilort. COUNTY SURVEYOR. See Surveys and Surveijors. Fees of, 562. Suits ou his bond to be brought in six years, 372i COXfi^TY TRUSTEES. Appointed yearly by a court of a majority of justices, 143. Vacancies filled by court, 143. To give bond and take oaths, 143. Form of oath, 443. Fines, forfeitures, &c., to be paid to him, 140. To collect by suit or otherwise all moneys due county, 143. To call to yearly account, at first court after 1st January, sherifls, clerks, &c., 144. On failure to pay, to take summai-y judgment, 144. Also for SlOO, penalty for their neglect, 144. Trustee neglecting to collect, liable as for collection, and for the penalty, 144. To settle with sheriff' for claims as numbered, 144. Compensation of county trustee, 144, 551. To settle yearly with first court held after 1st of June, 144. Penalty of SIO for other breaches of duty, 144. Office of, abolished and revived at discretion of court, 144. When abolished, duties to devolve on sheriff", 145. To collect money accniing from strays, 684. Suit on bond of county trustee to be brought in six years, 373. COUPONS. See Puilic Debt. COURT HOUSES, PRISONS, &c. Court houses, jails, stocks, and pillory to be built, &o., by eounty court, 145. County court to lay tax for such purposes, 145. Jails to have four separate comfortable apartments, 145. To be visited at each court by grand-jury, 146. A treasurer of public buildings may be yearly appointed by a majority of court, 146. To give bond — His duties and compensation, 146. Vacancies to be filled by court, 146. To settle his accounts yearly with the court, 146. Or judgmont on motion against him and sureties, and for penalty of $100, 148. Recommending repairs, &c. What to be done, 146. Burning of court house punishable with death, 203. COURT OF WARDENS. See Poor. COURTS, COUNTY AND SUPERIOR. CousTY Courts. Justices of the peace to be judges of courts of pleas and quarter-sessions, 151. At what time courts shall be held, in the several eounties, 151. May sit six days — Unfinished business continued, 164. One justice may adjouni daily for three days, &c., 164. Court nor process discontinued by failure to sit, or changing time of term, 164. , Three justices may hold court, 164. Jurisdiction in civil and criminal pleas, 164. Executions from county court may issue to any county, 178. Court may appoint a chairman, 165. Special court may be appointed by majority, &c. — Their pay, 156. INDEX. 649 COURTS, COUNTY AND SUPERIOR, {Continued). CouMTY Courts. May purchase necessary law-books, 155. Penalty on clerk for not taking care of them, 155. County court may, np to first of March, receive tax lists, 519. Double tax, in what cases may release, 620. To have jurisdiction of probate of wills, 609. For proceedings on probate. — See Wilts and Testaments. Superior Courts. To be held twice a year, in each county, 155. State divided into seven judicial circuits, 155. Counties composing each circuit, and time of holding courts therein, 155. Court may continue longer than a week in capital cases, 159. To be held by judges of integrity and skill in the law, 159. Jurisdiction and powers of the courts, and judges, 159. To have original jurisdiction in felonies, &c., committed by slaves, 571. Judges to be selected from the State at large, 159. To be appointed for, and to reside in, some particular district, 159. Shall take and subscribe oaths, to be deposited with secretary of State, 159. Form of his oath of office, 439. Penalty of S2,000 for acting without qualifying, 160. Shall ride according to present arrangement of circuits, 160. Ridings to be published before February and August, 160. Not to ride same circuit twice successively, but may exchange courts, 160. Judge not attending first day, sheriff to adjourn daily till third day, 160. Recognizances, &c., to stand continued in such case, 160. Special term when neces.sary, appointed by presiding judge, 160. Governor to bo notified, and to appoint a judge thereof, 160, Clerk to publish the court, 160. Special court may continue till a trial begun is finished, 160. Pay of judge holding special term, 160. To have the powers, &c., of other judges, 160. No process except subpoenas returnable thereto, 161. All persons to attend in civil cases, as at regular terms, 161. Jury. Jury list to be made from taxable freeholders, only of persons well qualified, 161. To contmue during, and be examined at the end of two years, 161. List to be kept securely in a box, 161. Number drawn for superior courts, and how drawn, 161. for county courts, and how drawn, 162. Persons having suits in court, not to be drawn, 162. Nor justices, for county court, 162. Jurors for special terms, how provided, 162. Court failing, sheriff, clerk, and three justices to draw them, 162. Jury, at two terms of county court, may be dispensed with, 162. Jurors to be summoned — to attend till discharged, 162. Tales jurors summoned in case of deficiency, 163. Regular jurors not attending, fined $20, 163. Jlay make excuse at next term, 163. Tales jurors failing to attend, fined S2, 163. Jurors exempt from service of civil process, when, 163. Regular ministers of gospel, physicians, postmasters, registers, and keepers of public mills, exempt from jury, 163. Petit jurors, how sworn in civil cases, 163. Form of oath, 440. How sworn in State cases, not capital, 163. Form of oath, 440. Right of challenge not affected by being sworn, 163. Jurors' uames before impanelled to be called in hearing of parties, 163 55 650 INDEX. COURTS, COUNTY AND SUPERIOR, {Canthiued). SuPEnioB Courts. Four may be challenged in civil cases, 163. Constables attending juries to be sworn : For what purpose, 164. Grand-jury, how many, and how to be drawn, 163. Practice, Pleas, and Process. Venue of actions, 164. When plaintiff resides out of the State, 164. When plaintiff and defendant reside in different counties, 164. Defendant not to be sued in superior court out of his county for less than 3100, 164. Actions otherwise brought may be abated, 164. Not to be brought in court, on bond, &c., for less than $100, 164. Or for penalty, or on justices' judgment, or balance of bond, &c., under f 100, 164. Or for unliquidated demands for $60 and under, 165. Otherwise brought, abated on plea, 165. Or if the matter appear, dismissed on motion, 165. Penal bonds over f 100 exoej)ted, 165. Process. Day of issuing process, to be noted thereon, 165. Day of receipt and execution by officer, indoi-sed, 165. Penalty $100 on clerk and officer neglecting this duty, 165. Security, unless in suit by pauper, to be given before issued, 165. Or else dismissed, 165. Penalty $200 on clerk issuing process without security, 165. Poor persons may sue without security, 165. To have counsel assigned them — their duty, 166. Names of parties, sureties for costs, and bail, to be docketed by clerk, 165. Process in same suit may issue at once to several counties, 166. Process, subpoenas, &c., when to be returned; how long before court executed, 167. Attachment or alias may issue on return of defendant " not to be found," 168. Wlien sheriff returns defendant resides in another county, aUas to issue thereto, 168. Process not to be executed on Sunday, day of election, or muster, 168. Nor on jurors or witnesses, 168. When directed to sheriff of adjoining county, 168. Sheriff executing process out of his county, to have extra pay, 168. Real plaintiff in ejectment to give prosecution bond, else suit dismissed, 166. Defendant in, to give bail, &c., else not allowed to plead, 166.. Plaintiff in ejectment makmg affidavit that defendant entered as his tenant, on what terms plea allowed, 166. On the trial, jury to find the facts, 167. If for the plaintiff, shall assess damages for waste and occupation, 167. Vleapuis darrein of entry by plamtiff since, &c., not received without affidavit, and payment of costs, 167. I- ,^T After such plea, jury in certain cases, to assess damages for waste and occupation, 167. Appearance of defendant in jail, entered by plaintiff, 168. Seal of court not to be put to process executed in county, 183. Rules of Court. ■ 1. Declaration to be filed in first three days of term, or suit dismissed, 169. 2. Defendant to appear, and plead, or demur at the same term, 169. " When special pleading required, time enlarged, 169. " Writ of inquiry in certain cases executed at rendition of judgment, 169. 3. Plaintiff to reply or demur at same term, and pleadings be completed, unless, &c., 169. 4. Time may be allowed to argue demurrer, or special verdict, 169. 5. Parties may appear in their own suits, 170. " Instrximents of writing merely informal, not to be lost, 170. 6. Proceedings of court to be entered by clerk in well-bound book, 170. 7. .Jury causes shall be first tried, 170. 8. Motions in arrest of judgment, on notice of reasons, when argued, 170. 9. Argument causes, when to be heard, 170. 651 COURTS, COUNTY AND SUPERIOR, ( Continued). SurEuion Courts. 10. Plea in abatement received only on affidavit, or proof, 170. 11. Wlien overruled, plaintiff to recover costs, 170. " As many pleas as necessary may be pleaded, 170. 12. Plea since the last continuance no ^raiver of fonner pleas, 170. 13. Issues to be tried at the first term after made up, 170. " Continuance of causes to be only by consent, or on affidavili, 170. 14. Party continuing may be ordered to pay costs, 170. 15. One attorney only to speak, unless allowed by court, 170. " May argue to the jury law and fact, 170. 16. Power of attorney to be produced and filed, unless, &c., 171. " If necessary to be retained, what to be done, 171. In actions on penal bonds, &c., plaintiff may assign many breaches, 171. Also onjudgment for plaintiff on demurrer, by default, &c., 171. And judgment shall remain a security for future breaches, 171. Witnesses. ' Subpoenas for, to be issued by clerk — How to issue, 172. Not returnable immediately, unless issued in term — then served personally, 172. If issued in vacation, served personallj', or hy leaving a copy, 172. Witnesses to attend from terra to term, till discharged, 172. Penalty for not attending: In civil oases, 5^40. In criminal, S80, 172. To be paid for attending after suit settled in vacation, unless, &c., 1T2. No execution to issue against defiiulting witness, till after set. fa., 173. Witnesses attending a jury of view, or commissioners, to be paid, 174. Subpoena to attend commissioners and others, in certain cases issued by clerk, 175. Refusing to give evidence in court, to be imprisoned, 175. During attendance, exempt from service of civil process, 175. Fees of witnesses for attendance at court, 175. To prove at each court by own oath his attendance, 175. May recover his fees of the party summoning, 176. Subpoena duces tecum may issue in certain cases, 177. Depositions. May be taken before or after issue, mthout special order, 173. General rules for takiug may be established by court, 173. General rules, 173. To be taken under rules of court when established, or special order, 173. Under sealed commission, if taken out of the county, 173. Commissioner to be of kin to neither party, 173. To be passed ou by clerk, 173. Notice to be given to adverse party of the taking, 173. Deposition of governor and others may be read, 173. Witnesses may be summoned to give their depositions, 173. Refusing to depose, to be committed to jail, 174. Committitur to recite the authority and cause of committing, 174. Sheriff to summon witness before commissioners on pain, &c., 174. Defaults of witnesses to be noted by commissioner, 174. If made before commissioner of another State, witness to be fined $50, 174. What to bo evidence of the default, 174. Det;uilt before commissioner of this State, to be certified to court, 174. Proceedings tliereon, 174. After removal of causes, subpoenas may issue from either court, 175. On final judgment, witness tickets to be taxed with costs, 176. Party cast, taxed with but two witnesses to prove same fact, 176. MlSCELLAKEOL'S. Party recovering shall have judgment for costs, unless, &c., 176. Wliat shall be reckoned among costs, 176. Depositions to be read in petitions, 179. Costs of petitions to be paid as court may decree, 176. 652 INDEX. counts, COUNTY AND SUPERIOR, ( Continued). Miscellaneous. Set-off pleadeil, or given in evidence under general issue on notice, wlien, 176. In suits for slander, and a. & b., if diimages be under S4, no greater costs recovered, 177. In ti'espass q. c. f., defendant may in certain cases plead tender, &c., in bar, &c., 177. In trespass, a. & b., and ejectment against several, those acquitted shall recover costs, 177. Unless the judge shall certify, &c., 177. Court may order parties to produce books or papers, as in equity, 177. If plaintiff fail, to be nonsuited, 177. If defendant fail, judgment rendered against him, 177. Indorsee may sue maker and indorser jointly or severally, 177. And their executors and administrators, 177. On joint obligations or conti'acts, one or more may be sued, 178. Joint obligations to survive against executors, &c., 178. Jtidgnient, liow entered against executors, &c., and sui-viving obligors, 178. Several actions sued on joint contracts, to be consolidated, 178. One attorney fee to be taxed on consolidation, 178. Judgment bonds, &c., void as to the power to enter judgment, 178. Interest shall run on judgments and contracts, except penal bonds, 178. To be distinguished from principal by jury, 178. Ascertaineil by clerk in judgments final by default on bonds, &c., 178. Petitions filed in vacation; capias to issue on affidavit, &c., 179. Publication for non-resident defendants in petitions, when and how made, 179. Decree ^ro confesso against non-residents, to bind as in equity, 179. Accounts in petitions audited and settled by order of court, 179. Clerk to i-eceive same fees for report, as master in equity, 179. Infants may sue by next friend, 179. Bill of e-xceptions may be tendered; Judge to sign and seal it, 179. Action of account .allowed against executors, &c., of guardians, 160. Defendant in penal suits pleading foi-mer judgment, plaintiff may reply fraud, 180. Release in fraud of the action, void, 180. Defendant in penal suit pleading falsely, indictable, 180. PajTnent, or satisfaction may be pleaded in suits on bond and judgments, 180. Also pajmient made after the day, &c., in suits on bonds conditioned to be discharged by less sum, 180. Penal bonds sued, to be discharged when sum due and costs are brought into court, 18L Judgment to stand until reversed, 181. In appeal and recordari from justice's judgment, court may require plaintiff to secure costs, 161. Appeals from justice to be tried first term of court, 181. In case of default, what judgment plaintiff to have, 181. Judgment on appeals from justices, rendered against party cast and snretics, 181. Plaintiff appealing from a justice and recovering no greater sum, not to recover costs, 181, Appeal from county to superior court tried de twvo, when, 181. Leap-year day counted with preceding day, as one day, 181. Execution not to issue on judgment after a year and a day, unless revived, 181. Nonsuit not allowed after verdict, 182. Party in execution not to be discharged on habeas corpus, 182. Death of a party between verdict and judgment, not error if entered in two terms, 182. Administrator, d. b. n. may have execution on judgment got by former administrator, 182. Accounts taken in certain suits against executors, administrators, guardians, sheriffs, &c., 182. To bo stated and paid for, as in equity, 182. Cause in superior court removed on affidavit to adjoining county, 182. Affidavit in ease of slave, by whom made, 182. Reasons for removal to be set forth, 183. Cause to be removed twice only, 183. Causes removed by consent to any convenient county, 188. On removal, transcript, depositions, and prosecutor's bonds to be sent, 163. Survey ordered in case of disputed boundaries; by whom made, 188. Charges of surveys taxed as costs, 163. Notices in proceedings to be served by sheriff — how served, 183. Return of service by sheriff, evidence of service, 184. INDEX. 653 COURTS, COUNTY AND SUPERIOR, ( Continued). MiSCELLAKEOUS. Wlien executed, returned on demand to the party, 184. To be served by coroner, when sheriff interested, 184. Penalty for failing to serve notice, or malting false return thereon, 184. Return of sheriff on scire facias, evidence of service, 184. Defendants may show they are sureties — the fact to be found, 184. Property of principal to be first sold, 184. Costs, judgment for, against sureties of plaintiff failing in suit, 184. After judgment, defendant may pay the money to clerk, 184. Clerk to pay it to party entitled, 185. Speedy collection of judicial sales, by motion, 185. Judge, how to deliver his charge to the jury, 185. Quakers may wear hats in court, 185. County court to procure weights and stamps, 599. Legacies, &c., recoverable by petition in superior or county court, 3T1. COURTS-JIARTIAL. See Militia. COURTS OF EQUITY. Established — Powers and stj'le of, 187. Rules of, 1. Bill may be filed at any time — Penalty of subpoena, 187. " Capias when to issue — form of writ, 1S7. " Not to issue against executor, &c., unless by order of judge, 188. 2. Subpcena and copy of bill to be served ten days before court, 188. 3. If defendant fail to appear and answer, &c., bill taken as confessed, 188. " Further time allowed for cause, 188. " In all cases, time for pleading may be enlarged, 188. 4. Publication six weeks for non-residents, and defendants not found, 188. " If defendant fail to appear, bill taken as confessed and court to decree, 188. " Provided, (1). Security to be given for return of property, iu case defendant appears and reverses decree, 188. (2.) In case of satisfaction decreed out of sequestered property, 188. (3.) If defendant appear, may answer on terms, 189. (4.) Within what time, else decree confirmed, 189. (5.) What to be done if suit has been removed to supreme court, 189. (6.) No decree against non-resident, unless cause of suit arose, or property in ques- tion be, in the State, 189. 6. Cause set for hearing within two terms after replication, 189. 6. All evidence to be in writing — Master a commissioner to take depositions, 189. 7. Answers, pleas, &c., taken by a judge, or by a justice on commission, 189. 8. Injunction, sequestration, and ne exeat may issue, 190. 9. Issues of f:iet, when tried by jury, 190. 10. Costs decreed at discretion of court, except, &c., 190. 11. Further security at any time required of defendant, 190. 12. Decrees, &c., executed by attachment, or otherwise, 190. 13. JIatter arising after issue, may be pleaded jjuis darrein, 190. 14. Venue of suits in equity, 190. Executions to issue and bind as at law, 190. Costs decreed against plaintiff and his surety, 190. On death of a party, his representative may become party, 190. Answer of deceased to be answer of representative, when, 191. Proceedings, when further answer is required of representative, 191. Bill taken as confessed, if he will not answer or disclaim, &c., 191. Revived in certain cases by defendant, against codefendant's representatives, 191. Proceedings in such cases, 191. Proceedings enrolled; when, and what part of them, 191. Injunction not to issue for greater sum than sworn to, 191. Nor but within four months after judgment, unless, &c., 191. Jloncy deposited on getting injunction, paid over on security, 192. 55* 654 INDEX. COURTS OF EQUITY, {Conlinued). Injunction dissolved, judgment rendered on bond, 192. In such cases, how uncerlniii damages ascertained, 192. Against judgment of the State, when to issue, 192. Infant and 7ton ccnnpos defendants, being non-residents, to have guardian, 192. Allowed three years after decree to appear and defend, 192. Causes, when removed to supreme court, 192. Parol evidence not received in supreme court, except, &c., 192. Further provision for removing equity causes, 193. Bills of review and petitions to reliear brought in live years — Proviso for infants and others, 193. Clerk and master may convey title in all cases of sale decreed, 193, Decree in certain cases to be a conveyance of title, 193. To be regarded as a deed and registered, 194. Copy from register's office, evidence, 194. Property in hands of executoi-s, administrators, and trustees, when attachable in equity, 98. Proceedings in such cases — see Attachment, 98. Court may grant administration in certain cases, 284. Powers of courts of equity over orphans, &o., 323. May decree sale to prevent injury by partition, 453. Also when land is required for public purposes, 463. For proceedings in such sales — see Partition. Proceedings in cases of sale for Partition — see Partition. COURT, SUPREME. Three judges of the supreme court appointed, 195. Terms, in June and December to be held in Raleigh, 195. In Morganton one term, on first Monday of August, 195. To sit till business is doue, 195. Name and style of the court, 195. To stand adjourned if no judge attends during first week, 195. Judges to take and subscribe oaths — which shall be filed in secretury's office, 195. Form of path, 439. Two, in case of sickness, &c., may hold court, 196. Shall appoint a chief justice, 196. Their power and authority, 196. Jurisdiction and power of court, 196. Shall render judgment on view of the record, 196. Execution whence issued, and where returnable, 198. In criminal cases, decision certified to court below, 196. How that court shall proceed, 196. Repeal of grants and letters patent, to have original jurisdiction of, 197. Decree in such cases, 197. Clerks appointed for four years, 197. Shall give bond and take oaths, 197. Offices of clerks, where kept, 197. Causes, from what counties caiTied to Morganton, 197. Provisionaiy exception in criminal cases, 197. Exception also, as to civil cases in some counties, 197. Causes adjourned from Moi-ganton to Raleigh, and vice versa, 197. Bills, &c., to be enrolled, and such other proceedings as court may direct, 108. Clerk's pay for such service, 198. Rules of practice for superior com-ts, prescribed by supreme court, 198. On appeal from interlocutory judgment, &c., no judgment to be entered, 198. Opinion with instructions to be certified to court below, 198. Exhibits in equity cases proved by witnesses, 198. Witnesses, binder same rules as to pay, &c., as other witnesses, 198. Opinion of judges to be delivered in writing, 196. Certificate of decision, nor execution to issue till opinion delivered to clerk, 198. Court may amend any proceedings at law, 199. What amendment may allow after cause set for hearing, 199. INDEX. 655 COURT SUPREME, (, Cbniinued). May remand ciiuse for amendment below, 109. May amend by making parties, 199. May allow further testimony to be taken, 199. Within what time petitions to rehear may be filed, 199. Bills of review aud writs of error may be brought in two years, 199. Suits may be dismissed for failure to prosecute, 199. Certificates of decisions to be transmitted to court below, 199. Clerk failing for twenty days after adjournment to transmit certificates, to pay SlOO, 200, Executions for costs in supreme and superior courts to issue from those courts, respectively, 199. Ou absence of attorney-general, court may appoint, &c., 200, Reporter of decisions annually appointed, 200. To report such cases as court may direct, 200, Reports of decisions, how distributed, 200. Marshal of court at Raleigh appointed, 200. Sheriff of Burke to attend court at Morgemton, 200. Pay of marshal and sheriff, 200. Judges to license attorneys at law, 102. In informations^ how court may ascertain the facts, 138. Parol evidence not received, except, &c., 192. On appeal from order allowing alimony, what the court may examine, 254. Judges may transfer law-books from Raleigh to Morganton, 487. CREEKS. See Rivers and Creeks. CRIMES AND PUNISHMENTS. Accessories before the fact punished as principals, 203. Crimes punishaule with death. Murder of malice prepense, 203. Felonious burglary, 203. Wilfully burning a dweUing-house, 203. Barn having grain or corn therein, 203. Store or warehouse, 203. Buildings erected for purpose of manufacturing, 203, Robbery of persons in or near the highway, 203. Duelling, when one party is killed, 203. Castration with malice, 203. Rape, and abuse of a female child under ten years, 203. v Crime against nature, 203. Malicious burning of State house or State offices, 203. Court house, jail, arsenal, clerk's or register's office, 203. Houses of incorporated towns or companies wherein are kept .archives, public papers, &c., 203. Feloniously entering a dwelling-house, and breaking out at night, 203. Killing a slave of malice, 203. Stealing slaves, or knowingly conveying away stolen slaves, 204, Aiding slaves to escape from the State, 204. Conveying free negroes from the State with intent to sell, 204. Selling free negi'oes within the State, 204. Property in slaves stolen, or knowingly conveyed away, how laid, 204, Crimes punishable otiibrwise than by death. Conveying free negroes in the State with intent to sell — misdemeanor, 204. Malicious maiming — misdemeanor; punishment, 205. Bigamy — oft'ence defined — misdemeanor; punishment, 205. Circulating seditious publications among slaves — felony; punishment, 205. Endeavoring by words to excite insurrection among slaves — punishment, 206. Embezzlement by servants of master's goods — misdemeanor; punishment, 200. Breaking prison, a misdemeanor, 206. Stealing or robbery of bank-notes and other securities, felony ; punishment, 208. Stealing growing produce, larceny, 206. Benefit of clergy abolished, 207. No one pardoned of other offences by conviction and punishment, 207. Manslaughter — First offence, how punished — second, with death, 207. 650 INDEX. CRIMES AND rVNISHMENTS, (dmlmuerl). Prior conviction, liow sliown on scconJ conviction, 207. Larceny — grand and petit — distinction between abolished, 207. Botli punislied as petit larceny — Proviso in aggravated cases, 207. Felonies not punished by particular statutes, how punishable, 207. Concealing birth of child, misdemeanor — punishment, 207. - Forfeiture for suicide abolished, 208. Burning bridges, or houses of incorporated towns or companies, not used to keep archives, &c., misdemeanor — punishment, 208. Maliciously attempting to burn bridges and certain houses, misdemeanor — punishment, 208. Stealing or obliterating proceedings or records of courts, misdemeanor, 208. In indictment for stealing or obliterating, &c., not necessary to allege ownership or value, 208. Stealing, destroying, or concealing wills of living or dead persons, misdemeanor, 208. Buying and selling offices, misdemeanor — punishment, 208. Bribery of jurors, misdemeanor — punishment, 209. Escape of criminals wilful or negligent committed to officers, misdemeanor, 209. What necessary for the State to prove, 209. Duty of attorney-general and soUcitors in case of such escapes, 209. Breaking up or staying elections, misdemeanor — punishment, 209. Public commissioners becoming contractors, misdemeanor, 210, Overseers of roads neglecting duty, misdemeanor, 210. Removing or defacing sign-posts or mile-marks, misdemeanor, 536. Bridges to be kept up by mill owners, &c. — neglect, misdemeanor, 210. Builder of toll-bridges neglecting to repair, &c., misdemeanor, 538. To keep unlawful fences, misdemeanor, 210. Trespass on pubUc lands, misdemeanor, 210. Trespasser to be removed by sheriff, 210. Vagi-ants to be recognized and indicted, 210. Peddling without, or failing to show license, misdemeanor, 211. Fornication, &c., misdemeanor, 211. Marrying females under fifteen, without written consent, misdemeanor, 211. Maiming without malice, misdemeanor — punishment, 211. Challenges to fight — sending, accepting, or abetting, misdemeanor — punishment, 211. Perjury, misdemeanor — punishment, 211. Subornation of, punished as perjury, 212. Perjury, and stibornation of, in capital cases — punishment, 212. Persons convicted of, rendered infamous, 212. Accessories to felonies before the fact, when, where, and how tried, 212. Accessories after the fact, when, where, and how tried, 212, 213. Accessories where principal is not attainted, may be punished, 213. Eeceivers of stolen goods, &c., of any value, misdemeanor — punishment, 213. Altering mark, &c., and mismarking beasts, misdemeanor — punislimeut, 214. False lights on the sea-coast, holding out, misdemeanor, 214. Forgery — punishment, 214. Counterfeiting bank-notes, checks, public or corporation securities, punished as forgery, 214. Passing, or attempting to pass counterfeit notes, securities, &c., punished as forgery, 214. Forging, issuing, or passing certificates of stock, punished as forgery, 215. Forged judgments, bonds, &c., knowingly to sell, punished as forgery, 215. Foreign gold or silver coins, counterfeiting, passing, or attempting to pass, punished as forgery, 21B. Having in possession instruments for counterfeiting such coin, punislied as forgery, 215. Fraudulently connecting parts of several bank-notes, &c., forgery, 210. Cheating by false pretences, misdemeanor — punishment, 216. Fraudulent entries and statements by public treasurer — punishment, 216. Lotteries forbidden, misdemeanor- — punishment, 217. Sale of lottery tickets, misdemeanor — punishment, 217. Faro-tables prohibited, misdemeanor — punishment, 217. Gaming-tables of every kind prohibited, misdemeanor, 217. Suffering gaming-tables to be on premises — punishment, 217. Gaming-tables to be destroyed by sheriff, &o., with the power of the county, 217. INDEX. 657 CRIMES AND PXJNISHMENTS, (Continued). Betting, or playing at cards in inns or retail houses, misdemeanor — punishment, 217. Keepers of such houses, suffering cards played on premises, guilty of misdemeanor, 218. Dloney or property staked may be seized, 218. Persons opposing seizure guilty of misdemeanor, to forfeit $1,000, 218. Billiard and backgammon tables excepted, may be used, 218. Marriage of free negroes with white persons, misdemeanor, 218. Enticing away, and harboring runaway slaves, misdemeanor and penalty, 218. Teaching slaves to read or write, use of figures excepted, misdemeanor, 218. Fire-arms and other weapons not to be sold or giren to slaves, 219. Trading with slaves on Sund.iy or at night, misdemeanor, 219. Buying or receiving from slaves, without written permission, misdemeanor, 219. Unlawful sales to slaves, misdemeanor, 219. Certain sales to slaves of liquor, misdemeanor, 219. Presumptive evidence of unlawful trading with slaves, 220. Punishment for unlawful trading with slaves, 220. Presumptive assent of principal to unlawful trading by his agent, 220. Forgery of licenses for slaves to trade, misdemeanor, 220. Penalty additional of $100 for trading w^th slaves, 221. Entertaining slaves and free negroes on vessels at certain times, misdemeanor, 221. Slaves and free negroes also punished therefor, 221. Retailing spirituous liquors without license, misdemeanor, 221. Hunting by fire-light, or permitting slaves, &c., misdemeanor, 221. Accomplice in fire-hunting giving evidence, discharged, 221. Wilful injury to wells, &c., of water, misdemeanor, 221. Voting fraudulently at elections, misdemeanor, 221. Maliciously obstructing or injuring railroads, when misdemeanor — when felony, 222. Maliciously injuring plank-roads, turnpikes, or canals, misdemeanor — punishment, 222. Wilful injuiy to railroads and other improvements, misdemeanor — punishment, 222. Tombstones, monuments, &c., removing or injuring, misdemeanor, 223. Destroying, defacing, or injuring certain houses, otherwise than by burning, misdemeanor, 223 Burning or injuring, &c., churches, uninhabited and out-houses, misdemeanor, 223. Burnmg, pulling down, or removing fences, misdemeanor, 223. Stock, wilfully killing or injuring while running at large, misdemeanor, 223. Maliciously or wantonly killing stock in certain counties, punished as larceny, 223. Ton timber floated down Eoanoke river to be marked, and mark recorded, &c., 223. Altering mark, or talcing marked timber, witli intent to steal, larceny, 224. In disputes of ownership, mark first recorded to hold, 224. Sale of liquor, traffic and exhibitions near places of worship forbidden — when, 224. Sending letters of menacing demand for money, misdemeanor, 224. Or threatening to accuse of infamous crimes, to extort money, 224. Malicious trespasses and injuries to real estate, misdemeanor, 224. White women not to be branded or whipt, 225. \.,/' Inspectors of elections failing to act, guilty of misdemeanor, 305. Negligent omission of returning officer in elections of governor and electors, misdemeanor and penalty, 225. Wilful neglect of officers in such cases, felony and penalty, 225. Said offences tried in Wake: not to be pardoned, 225. Governor not to pardon negligent or wilful omissions of returning officers in certain elections, 225. Returning officers in senate elections failing to compare polls, misdemeanor, 307. White person playing at games with slave or free negro, guilty of misdemeanor, 225. Contempt of court, what shall be, 226. When punished or attached for, particulars to be specified, 226. Constables failing to execute process, or making false returns, guilty of misdemeanor, 226. Or acting without authority, 226. Officers failing to discharge their duties, guilty of misdemeanor, 226. Misdemeanors by statute, punished as at common law, unless otherwise directed, 226. Failure to levy, or collect and pay tax for indigent insane, misdemcauor, 90. Sheriff releasing defendant without bail, indictable, 106. 658 INDEX. CRIMES AND PUXTSHSIENTS, ( Contimied). Persons firing woods, except, &c., guilty of misilc Giving certificate of healthy stock by justice, without afFidavit, misdemeanor, 117. Circulation of notes, due-bills, Sec, under S3, misdemeanor, 238. Issuing false certificate of specie paid in bank, misdemeanor, 238. Foi-cible entry, indictable, 296. Failure of sherift" to notify governor of vacancy before session of assembly, misdemeanor, 307. Falsely acting as legal inspector, misdemeanor, 353. Establishing railroads, &c., ■without permission, misdemeanor, 360. Vessel coming into port against quarantine law, master and pilot indictable, 492. Register violating his duties, guilty of misdemeanor, 498. Listers of taxables refusing to take oath, guilty of misdemeanor, 517. List-takers or assessors refusing to act, guilty of misdemeanor, 518. Obstructing boats by felling trees, &c., misdemeanor, 531. White persons working in certain swamps with slaves without certificate, &c., guilty of misde- meanor, 567. Forgery of certificate punishable with pillory, &c., 568. Masters allowing slaves to go at large as freemen, guilty of misdemeanor, 570. Allowing slaves of others to meet for dancing unless, &o., misdemeanor, 670. Free persons conspiring with slaves — punisliment, 572. For crimes and punishments of slaves and free negroes. See Slaves and Free Neyroes. Millers keeping false measures indictable, 427. Finder concealing stranded goods, guilty of larceny, 617. Embezzlers and receivers of such goods punished as for larceny, 618. Defendant in penal suit pleading foi-mer judgment, obtained by fraud, guilty of misdemeanor, 180. Offences in respect to oysters and fish. See Oysters and other Fish. CRIMINAL PROCEEDINGS. Rights of accused in criminal prosecutions, 8. Mode of prosecution, 8. Jury trial in criminal cases, 8. Bail, fine, and punishment to be reasonable, 8. Duty of magistrates in committing criminals, 228. Examination of criminal and witnesses before magistrate, -when evidence, 228. Duty of sheriffs and others in arresting criminal; all to aid officer, 228. Persous to be imprisoned in the common jail, 229. Sherifi", in jail of adjoining county, 229. Governor may take means to arrest fugitives charged with capital crimes, 229. Fugitives from other States charged with high crimes, to be committed, 229. No person to be arrested on a presentment, 229. None to be put on trial but on indictment found, 229. Names of witnesses, and grand-juiy informers, to be indorsed on presentment, 229. Indictment for misdemeanor, except, &c., to be commenced in two years, if oflender he known, 229. Proviso, where indictment is defective, 230. Criminal process to issue, and be returnable at any time, 230. Pwjceedings to be as heretofore, unless altered, 230. Sheriff to indorse on criminal process and subpoenas, d.ay of receipt and execution, 280. Bail to be taken by sheriff, when offence bailable, 230. Sheriff shall not become bail in such cases, 230. Persons convicted of misdemeanor, %llowed bail pending appeal, 230. Accused entitled to counsel, 230. Indictment not quashed, or judgment stayed, for formal objections, 230. Proceedings of court, how and what part, to be set forth in indictments, 230. What to be set forth in indictment for perjury, 231. What, for subornation of perjury, 231. In indictment for second offence, how first conviction stated, 231. How ownership stated of property held in common, 231. Certain defects in indictment not to vitiate, 231. Intent to defraud, what statement and proof thereof, sufficient, 232. Party whose name is forged, a oompetent witness, 232. INDEX. 659 CRIMINAL PROCEEDINGS, (Continued). Counts joined for trading with slave, receiving stolen goods, and larcenj-, 232. Crimes committed on waters dividing counties, where tried, 232. Improper venue to be pleaded in abatement, 232. On issue joined, what judgment rendered in misdemeanors and felonies, 233. In indictments for libel, defendant may show the truth, 233. Assault and death in different counties, trial where assault, 233. Assault in State and death out of it, trial in this State, 233. Plea entered for defendant standing mute, 233. Special feniVe issued by judge in capital cases, 233. Penalty on sheriff for not executing it; on jurors not attending, 233. Challenges peremptory allowed defendant, 234. Twenty-three in capital, and four in other cases, 234. Challenges by State, 234. Four allowed in capital, and two in other cases, 234. Goods restored on conviction of robbery and larceny, 234. New trials vaay be granted to defendants, 234. A day for trial of crimes to be fixed by courts, 234. State's day, notice of, to be given by clerk, 234. Witnesses not to attend till State's day, 234. Paid as in civil cases, 234. Prosecutor, in certain cases ordered to pay costs, 235. Recognizances remitted or lessened at any time, by a judge, 235. Clerks to refund remitted forfeitures paid into office, 235. County trustee, when paid to him, 235. Fines remitted or lessened by county court, when, 235. Recogniz.ances forfeited, remitted, or lessened by county court before judgment, 235. Executions for forfeitures, &o., not to issue till after sci.fa., 235. Joint sci.fa, to issue on forfeited recognizances, 235. How to be executed, 236. Costs to be paid by defendant in criminal cases, when, 236. Penalties not given specially, may be recovered by any one, 236. "When recovered in name of the State, 236. Prosecuting officer may dkect post-mortem examination, 236. Participators in unlawful games, to testify of the gaming, 236. Not to be prosecuted therefor, after testifying, 236. Court may continue longer than a week in capital cases, 159. In criminal cases, decision of supreme court to be certified to court below, 196. How that court to proceed, 196. Benefit of clergy abolished, 207. No one to be pardoned of other ofTences, by conviction and punishment, 207. Property in slaves stolen, or knowingly conveyed away, how laid, 204. In indictment for stealmg or obliterating records, &c., not necessary to allege ownership or value, 203. White women not to be branded or whipt, 225. Proceedings against insane, imprisoned for crime, 330. May be tried on becoming sane, 330. Trial of slaves to be conducted as of freemen, 571. Owner to have ten days' notice of trial, and liable for costs, 577. When owner cannot be notified, counsel appointed, 578. Insolvent free person convicted of capital offence may appeal without security, 75. BOPS. If ungathercd at death, &c., shall go to executor, &c., and not to devisee or widow, 293. Rent crops exempt from execution except for taxes, 3B8. Executions not to be levied on crops till matured, 276. ULLINGS. See Inspections, 353. URIOSITIES. Tax on, 514. Exhibition of, in five miles of Chapel Hill without license, misdemeanor, 596. Not to be exhibited in half mile of religious assemblies, except, Sec, 500. 660 INDEX. CURRENCY. Of United States to be the currency of the State, 287. Public accounts, &c., to be kept therein, 237. Banks not to draw checks payable otherwise than in specie, 237. Not to issue bills, or certificates of deposit for less than three dollars, 237. Corporations not to issue such certificates, nor any kind, for circulation — penalty, 237. Issue of bills, notes, and any circulation, unless expressly allowed, a misdemeanor, 237. Circulation of such notes, due bills, &c., a misdemeanor, 238. Treasurer not to receive notes of banks issuing bills, c&c, less than three dollars, 238. Specie required by charier to be honafuh paid in, before banking, 238. Certificate of pnyment to be deposited with the governor, 238. On pain of misdemeanor, and penalty, 238. Issuing false certificate of specie paid in, misdemeanor, 238. Corporations and companies created bj- letters patent, forbidden to bank, 137. CURSING AND S\VE.\RING. See Vice and Immorality, 578. DAM. See Drainintj and Damminij Low Laruh. DAMAGES. For injuries causing death, how assessed, 65. When assessed in actions of ejectment, 167. On dissolution of injunction, how uncertain damages ascertained, 192. Damages for stock killed on railroad, how recovered, 117. For sheep injured by dogs, 117. Damages at the rate of 12 per cent, against clerks and otliers for money detained, 446. In waste, plaintiff shall recover treble damages and place wasted, 598. By stock where fence sufficient, how recovered, 294. To stock by persons not having legal fence, how recovered, 295. Attorney guilty of fr.aud, to pay double damages, 102. Damages for lands and materials condemned for railroads, &c., how assessed. See Internal Im- provement. DEBTORS. See Insolvent Debtors. Debtor named executor not discharged, 288. Persons removing debtors to delay, &c., creditors, liable for their debts, 301. Lands of deceased debtors sold to pay debts. See Executors and Administrators, 290. DEBTS DUE THE STATE. To have priority, 595, Recovered on motion. See Revemie — Treasurer. DECREE. Executed by attachment, execution, or otherwise, 190. Presumed to be satisfied after ten years, 375. In certain cases to convey estates, 193. In such cases to be registered as deeds, 194. DEEDS AND CONVEYANCES. Deeds proved and registered in county where land lies, good without livery, 239. Probate of deeds, powers of attorney, &c., before whom made, 239. When grantor or subscribing witness out of the State, proved before a commissioner appointed by county court, 240. Commission to issue under seal of court, 240. Probate, and privy examination o{feme cmert,to be certified, 240. Deed, &c., to be registered on return of certificate, 240. Probate of deeds, &o., in United States, of yemc coverts and] others, taken before a judge and certified, 240. Made in foreign countries, how jirovcd and registered, 241. Further provisions for probate of such deeds before ambassadors, &c., 241. Of husband and wife, how proved — wife to be privily examined, 242. When wife is sick, or resident in another county or country, 242. Form of commission to take her examination, 242. Conveyance under power of attorney from husband and wife, valid, 243. Such powers proved and registered as deeds, 248. INDEX. 661 DEEDS AND CONVEYANCES, ( Conti7iued). Another mode of examination, when husband and wife reside in foreign parts, 213. How proved in and out of the State, 243, 244. Subscribing witness dead, how deeds, &c., proved, 244. Copies of registered deeds evidence, unless original requu-ed by rule, 244. Gifts of slaves to be proved and registered, 244. Also deeds of gift, 244. Sales of slaves in writing, likewise, 244. To be registered where purchaser resides, unless vendor retains possession, 244. Estates in slaves Mmitable bj deed, ns by will, 245. Deeds of mortgage and trast valid against creditors, &c., only from registration, 245. Where registered, if they convey personal estate, 245. Begister to indorse day of receipt on mortgages, &o., 245. To register them in the order of delivery, — penalty, 245. Man-iage settlements to be registered, else void as to creditors, 245. v- When valid against creditors, 245. Deficiency in property settled, how made up, 246. Contrasts to sell land, and leases required to be in writing, to be registered, 246. Infant trustees how to convey, 246. Errors in registration corrected on petition, 246. Appeal allowed from the judgment, 246. Deeds for land registered in wrong county before 1830, or certified copies, may be registered in proper county, — when, 246. Deeds, how made when sheriif after sale goes out of office, dies, or removes, 246. Witnesses to deeds may be summoned to prove them, 247. Further time allowed for probate and registration, 247. Conveyances from corporations by deed, how made, 137. Decrees of courts of equity may operate as conveyances, 193. Deeds registered and lost and registry destroyed, presumed to have been in due form, 274. Lands contracted to be sold by deceased, to be conveyed by executor, &c., 283. Eegister to call on clerks for deeds, &c., in twenty days after court, 498. Deeds, &c., other than mortgages, &c., to be registered in one month after delivery — penalty, 498. Original deeds, &c., to be kept by registers in alphabetical files, and delivered, &c., 498. Alienation by widow of dower land, to convey her right only, 603. Officers to prepare deeds for property sold, 280. Land sold for taxes, to be conveyed by sheriff', 523. Mode of proceeding toobtain title — see Jtevemie, 523. DEEDS IN TRUST. See Mortgage., and Deeds m Trust. DEER. See Burning Woods and Iluniing. DELEGATES, present at the Mecklenburg declaration of independence, 3. To State congress in 1776, 6. DEMURRER. On demurrer formal defects disregarded, unless specially expressed, 71. Time allowed to argue demurrer, 169. DEPOSITIONS. Rules for taking depositions, 173. To be passed on by clerk, 173. Rule as to depositions in cases of divorce, 252. How taken in contested election of governor, 314. In trials before justice, when allowed, 364. Not allowed on application of infamous person to be restored, 832. Of what persons living in the State, may be read, 173. DEPOSITS OF PUBLIC FUNDS. See Treasurer. DEPOTS. See Internal Improvements. Quantity of land condemned for, 359. DEPUTIES. Of clerks of county and superior courts, when to act as clerks, 122. To be qualified as officers, 122. 56 662 INDEX. DEPUTIES, ( Continued). ■ Sworn deputy may administer oaths whenever principal may, 444. DESCENTS. KULES OF. 1. Lineal descent, 248. 2. Females to inherit equally with males, and younger with older children, 248. " Children advanced in real or personal estate, to account for advancements, 248. 3. Lineal descendants to represent their ancestor, 249. 4. Collateral descent of inheritance, when derived from ancestor, 249. 5. When not so derived, or ancestor's blood extinct, 249. 6. Half blood to inherit equally with whole blood, 249. " Parents when to inherit from children, 249. 7. Kone to inherit unless alive, or bom in ten months after ancestor's death, 249. 8. When widow shall take as heir, 249. ./ 9. Alien heirs not to prevent citizen relations from inheriting, 249. 10. Illegitimate children to inherit from their mother, 249. 11. And from each other, 250. " Mother to be heir of illegitimate child dying without issue, 250. V' 12. Estates for life not devised, to descend as inheritances, 250. 13. Seizin defined, 250. DETAINER. See Forcible Entry and Detainer. DEVASTAVIT. See Executors and Administrators, 290. DEVISEES. Specific devisees whose lands are sold to pay debts, entitled to contribution, 292. Devisee not entitled to ungathered crops, 293. Sales by devisees and heirs, within what time void as to creditors, 292. Devisee or collateral heir, failing to pay tax, &o., to be sued, 508. DIGNITY OF DEBTS. Prescribed — see Executors and Administrators, 286. Debts of State to have priority, 595. Surety paying debt of deceased principal to have like priority as the creditor, 566. DISTILLERS OF TURPENTINE, tax on, 611. DISTRESS FOR TAXES. See Revenue, 521. DISTRIBUTIVE SHARES OF INTESTATES' ESTATES. See Legacies, #£. DISTRICTS, CAPTAINS. See Constables; County Boundaries ; Militia. DISTRICT OF COLUMBIA. See Statutes, cfc. " State " and " United States " shall embrace the District of Columbia, 581. DITCHES. See Draining and Damming, tf-c. ; Boads, Ferries, <^-c. Owners of mills and ditches on and across roads, to keep up bridges, 537. DIVIDENDS. See (Corporations. Tax on — see Revenue, 609. DIVORCE AND ALIMONY. Power of General Assembly over the subject, 23. Courts of law and equity to have jurisdiction, 251. Divorce, or aUmony, when granted, 261. Divorce from bed and board and alimony, when granted, 251. Alimony granted to spendthrift's wife, 261. Proceedings to obtain divorce, or alimony, 261. Affidavit of the facts, and security for costs, 251, Petition, how served, 252. Material facts submitted to a jury, 252. Cause of complaint nmst have been six mouths, and residence three years, 252. Unless husband is removmg his property — proceedings iu such case, 252. Rules as to depositions and costs, 252. Bars to divorces on account of adultery, 252. Decree when made, and what decreed, 253. Innocent party may marry again, 253. INDEX. 663 DIVORCE AND ALIMONY, (Cmllnued). Offending party may not, during the life of tlie other, 25'1. Children not to become Illegitimate, 253. Alimony, how secured and enforced, 253. Wife divorced from bed and board, to have property thereafter acquired, 253. May sue and be sued alone, 253. What privileges may be decreed to a ivife obtaining alimony, 253. Alimony allowed pending suit, 254. Appeal allowed on grant of alimony in such case, 254. What supreme court may examine, 254. Appeal OQ final decree of divorce and alimony, 254. Suits for divorce, &c., may be removed to supreme court, 254. DOGS. See Calth and other Stoch ; Mad Dor/S. Tax on, may be laid by towns, 590. DOOR-KEEPEK. See General Assembly. Of council of State — His pay, 544. DOWER. See ]Vidmcs. Widows, in what cases entitled to dower, 601. Proceedings to obtain dower, 601. Fraudulent conveyance not to defeat, 601. Allowed in rights of redemption and trust estates, 602. Dower, and land in heu, not subject to husband's debts, 602. To include dwelling-house, unless, &c., 601. Detained of dower entitled to damages, 605. Wife eloping with adulterer, barred of dower, 603. Alienation by widow of dower land to convey her right only, 603. In sales for partition, court may decree sale of dower interest, 453. DKAGNETS. See Oysters and Other Fish. DRAINING AND DAMfflNG LOW LANDS. Mode of proceeding, 255. Court to appoint seven commissioners, 265. Their duty — To report to court, 265. On payment of damages and costs, easement to vest in fee, 256, No canal or dam made through yard or curtilage, 256. Or to injure mills, or create nuisance by stagnant water, &c., 255. Fences or paths across canal or dam, when made by proprietor, 256. Earth for dam, how taken, 256. Proprietor of land may adjoin his own dam, when, 256. Commissioners to designate width of land for use of canal or dam, 256. Width for dam not to exceed five times its base, 256. Earth excavated for canal to be removed or levelled, 266. Proprietor of land not to open drain within thirty feet of canal, 258. Mode of proceeding to drain into a canal, 256. Canal not to be cut into, if its value be endangered thereby, 257. Unless the danger may be avoided by imposing duties or labor, 257. No decree final for cutting made, until the work is done and effect seen, 257. Labor for repairing canals to be assessed and apportioned by commissioners, 257. Report when confirmed to stand as a judgment against the parties, 257. Mode of proceeding to enforce repairs of canals, 257. Persons failing to work, how recovered against, 257. Assignees and others bound to repair as original owners, 257. All interested, to contribute to repair dams, &c., 267. Mode of proceeding, 258. Pay of commissioners to be taxed among costs, 258. Costs of appeal to be paid as court shall direct, 258. Owners of ditches across roads to make and keep up bridges, 537. Penalty for neglect, 638. DRAW IN BRIDGES. See RomIs, Ferries, and Bridges. 664 INDEX. DRUGS, of non-residents, sold by agent. Tax on. See Bevenue, 511. DUE BILLS AND CHECKS. See Currency; Banks. DUELLING. Challenges to fight, sending, accepting, or abetting, misdemeanor, 211. Killing in duel deemed murder, 203. DUMB, See Asylums. DUNKERS. See Oaths. DWELLING-HOUSE. See Crimes and Fwiishments. EJECTMENT. Plaintitf making affidavit that defendant entered as tenant, on what terms plea allowed, 166. Oil trial, damages may be assessed for waste and occupation, 167. Flea puis darrein of entry by plaintiff, not received without affidavit and payment of costs, 167. After such plea, damages assessed in certain cases for use and occupation, 167. In ejectment against several, those acquitted shall recover costs, unless, &c., 177. On death of defendant in ejectment, how service made on heirs, &c., 65. ELECTIONS. Breaking up or staying, misdemeanor, 209. Voting fraudulently, misdemeanor, 221. Negligent omission of returning officers in elections of governor and electors, misdemeanor and penalty, 225. Wilful neglect of officers in such cases, felony and penalty, 225. Justice being a candidate not to vote, &c., in election, 361. Voting more than once in elections for member of congress, penalty for, 396. Persons coming of age after first of April may pay tax and vote, 515. Process not to be executed on days of certain elections, 168. Incorporated towns may elect commissioners and other officers, 687. For election of officers by towns — see Toums. For election of constables — see Constables. For election of clerks of county and superior courts — see Clerks of County and Superior Churtt. For election of governor — see Governor and Council. For election of members of assembly — see General Assembly. For election of members of congi-ess — see Members of Congress. For election of sheritis — see Sheriff. ELECTORS OF PRESIDENT AND VICE-PRESIDENT. State divided into ten electoral districts, 258. Persons qualified to vote for electors: — time and place of elections, 259. Certificate of poll and return, by whom made, 259. Penalty of $500 for failing to make return, 259. Governor to proclaim electors, and warn them to attend at Raleigh, 260. To deliver them a list of votes and lay same before assembly, 260. When and where electors shall meet, 260. Penalty on electors failing to attend, 260. On sheriffs refusing to hold polls, or for false returns, 261. Compensation and privileges of electors, 261. May supply vacancies in their bodies, 261. Pay of sheriffs for holding election, 261. On vacancy of offices of president and vice president, governor to order election, 261. EMANCIPATION OF SLAVES. See Slaves and Free Negroes. EMBEZZLEMENT. By servants of master's goods, punishment, 206. Selling, buying, or embezzling public arms, penalty for, 482. Of wrecked goods, deemed larceny, 618. EMBLEMENTS. Widow dying entitled to emblements, 603. Crops ungathered at decease go to e.xecutor, and not to devisee or widow, 293. ENGINEERING, BUREAU OF. See Internal Improvements. Internal improvement companies to furnish bureau with maps, &o., of improvements, 359. INDEX. 666 ENROLMENT. No proceedings in courts of equity to be enrolled, unless ordered, 191. In supreme court all pleadings and decrees in equity cases to be enrolled, 198. No other part of the proceedings, unless ordered by court, 198. ENTRIES AND GRANTS. What lands subject to entry, 262. Land covered by navigable waters may be entered, when, 262. Regulation of the line on deep water, 262. Price of such land, 262. Owners of wharves on such land may enter it, 262. Lands covered by lake water not to be entered, 262. Nor marsh or swamp lands of 2,000 acres in one body, &c., 262. Such lands in bodies of 60 acres entered, in certain cases, 262. Entries and grants of land not authorized, void, 263. Entry-takers and surveyors appointed, 263. Where a vacancy, clerk of county court to act as entry-taker, 263. Bonds of surveyors and entry-takers, 263. Entry-takers to keep office at court house, 263. Surveyors may appoint deputies, 263. Price of entered lands, 263. Entry money, when paid, 263. Time of payment on certain entries extended, proviso, 263. On failure to pay the price, next enterer entitled, 264. In case of lapse, same person not to reenter within a year, 264. Entries how made ; warr.ants when issued, 264. Surveys, how made and returned, 264. Chain carriers, appointed and sworn, 264. Special surveyor, when appointed, 265. Surveys to be according to priority of entry, 265. Warrant of survey lost, duplicate may issue, 265. On death of entry-taker, successor to issue warrant, 265. Entry-takers, how to make entries for themselves, 265. Surveyors, how to have surveys made for themselves, 265. Entry-takers to make annual returns to secretary under penalty, 265. Treasurer to receive entry-money, 266. Grants, on what certificates issued, 266. How authenticated: — to be registered, 266. Copies from secretary's office may be registered, 266. How to issue on death of enterer, 266. Seal to grant lost, may be renewed, 266. Certain grants heretofore issued to surveyors, &c., confirmed, 266. Certain other grants declared valid, 266. Grants on entries extending to two or more counties, confirmed, 267. Mistakes of surveyors and secretary, how corrected, 267. Application to correct surveys, to be made in three years after date of grant, 267. Persons aggrieved by issue of grants, how to proceed, 268. Proceedings and judgment in such cases, 268. Copy of proceedings vacating grants filed in secretary's office, 268. Cherokee lands not included in this chapter, 268. Grants and letters patent repealed in supreme court, 197. Decree in such cases, 197. Land bid off by the State for taxes, subject to entry, 624. Secretary to take receipts for grants, — may send them by mail, 557. ENTRY-TAKER. See Entries and Grants. . Oath of, 437. To execute bond in $2,000, 263. Names of justices present at his qualification to be recorded, 446. His office to be kept at the court house, 263. Suits on his bond, 446. 56* 666 INDEX. ENTET-TAKER, {Conlmued). To be brought in six years, 373. Fees of entry-taker, 552. EQUITY. See Courts of Equity. EQUITY OF REDEMPTION. See £xcc«(i(ms; Redemptum. ERROR. See Writs of Error. ESCAPE. Escape, wilful or negligent of criminals committed, misdemeanor, 209. What necessary for the State to prove, 209. Duty of attorney-general and solicitors in such cases, 209. Sherifl' permitting escape of one in execution liable in action of debt, 561. ESCHEATS AND DERELICT PROPERTY, o&e Executors and Adminislrators. University endowed with escheats, &c., 596. ESTATES. Estates in tail converted into estates in fee-simple, 269. In joint-tenancies other than partnerships, share of deceased not to vest in survivor, 269. Certain contingent limitations in deeds and wills, how construed, 270. Infants unborn may take by deed, 270. Limitation to the heirs of a living person to include his children, unless, &c., 270. In conveyances to uses, possession transferred to use without livery, 270. Grantees of reversions to have such rights against tenants, as grantors had, 270. Such tenants to have same rights against grantees, as against grantors of reversions, 271. Buying or selling pretended rights or titles, prohibited, 271. Collateral and certain other warranties, void, 271. Warranties to stand as personal covenants only, 271. Estates for life not devised, to go as inheritances, 250, Estates in slaves, limitable by deed as by will, 245. What slaves pass under the term " increase," 611. EVIDENCE. Necessary to support title under, H. E. McCulIock, 272. Grant or copy of, from proprietors sufficient, 272. Laws of other State, how proved, 272, 623. Private acts proved by printed statute book, 272. Other evidence of private acts, 272. Plats and surveys proved by copies from secretary's office, 272. Letters of administration, &c., returns, &c., in other States, proved by copies, 278. Records and papers lodged in State offices, proved by copy, 273. Wills or deeds in other States proved by copy, 273. Wills in office of secretary proved by copy, 274. In suits on bonds of officers, executors, &c., evidence against principal good against sureties, 273. Evidence in suits concerning land in Haywood and Henderson, 273. Variance between judgment and execution not to affect title of property sold, 274. Deeds registered and lost and registry destroyed, presumed to have been in due form, 274. Protest of notary, &c., evidence of demand, &c., 112. Copies of book accounts when evidence, 114. Certified copies of appointment or removal of commissioners of affidavits, evidence, 125. Certificate of commissioners of affidavits, &c., when evidence, and of what, 124. Returns of constables evidence, 130. Letters patent joriwd/ncie evidence of incorporation — copies admissible, 138. Court may order production of books, &c., as in equity, 177. Return of service of notice by sherifr, evidence of notice, 184. Return on scire facias evidence of sei-vice, 184. Examinations of criminals and witnesses before magistrates, when evidence, 187. Registered deeds proved by copies, unless original ordered by court, 244. Decrees operating as conveyances, proved by copy, 194. Copies of wills evidence of their contents, 610. Indebtedness of donor, evidence only of fraud, &c., 299. Presumption of title in favor of literary fund or assigns, 383. Copy of record evidence against justices failing to take official bonds, &c., 446. INDEX. EVIDENCE, ( Continued). Kegistei-'s books copied by order of court, evidence as originals, 4D9. Clerks' and sheriffs' bonds proved by copies, in suits by treasurer against them, 528. Certificate of treasurer or comptroller and copies of papers in office, evidence, 529. Overseers of roads competent to prove notice to hands, 535. Order of court directing footways, presumed after ten years use, 535. Receipt of sheriff for process, evidence against his sureties, 561. What kind of evidence received in cases of insnrrection of slaves, &o., 572. Evidence of slaves and persons of color, against whom allowed, 578. Commissioner of wrecks may prove summons to aid in saving vessels, 618. Revised Code evidence of the law, 621. EXECUTIONS. Real estate may be taken in execution, 275. To issue against real and personal estate; latter first sold, 275. Levies on leaseholds of three years under justice's execution, returned to court, 275. Trust estates liable, 275. Purchaser to hold discharged of trust, 276. Riglit of redeeming real estate liable to execution, 276. Sheriff's deed to refer to mortgage, &o., 276. Articles exempt from execution, 276. Other articles for one who is a householder, exempt, 276. How set apart and assigned, 276. Sale of exempt property void, 276. Not to be levied on growing crops, till matured, 276. Justice's execution levied on land returned to court; proceedings, 277. If not satisfied, execution to issue for balance, 277. Lands and slaves, how and where to be sold, 277. Proviso, as to sales decreed by court of equity, 277. Other places of sale may be appointed by county court, 277. Notice to be given of sales, 277. Advertisement how made ; for what time, 277. What time of day sales to begin, 277. Penalty for selling contrary to law, 277. Return of "no sale for want of bidders," how to be made, 278. Penalty for omission, 278. Justice's execution to bind from levy only, 278. Sheriff, &c., may take forthcoming bond for property levied on, 278. The surety to be bailee of officer, by taking a list of the property, 278. Sales, when made under after-levied executions, 278. Officer, how to proceed on the bond when broken, 276. Defendant to be notified five days before court of justice's execution levied ou land, 279. Otherwise notice directed by court, 279. Allowance made by county court to officers for keeping stock, &c., taken in execution, 27i Officer to state his account and return it; to furnish debtor a copy, 279. Purchaser may recover of defendant in e.-cecution, if his title fiiil, 279. Defendant dying in execution, debt not discharged, 279. Executions to be issued by clerks in six weeks; penalty ^100, 280. Officers to prepare deeds for property sold, 280. Costs on executions to be paid to clerks; penalty §40, 280. Executions from county courts may issue to any county, 178. May issue for maintenance of bastard child, 109. What executions to issue against corporations, 134. Not to issue on a judgment after a year and day, unless revived, 181. Party in execution not to be discharged on habeas corpus, 182. Administrator d. b. n. may have execution on judgment got by former administrator, 1S2. Property of principal, in certain cases, to be first levied on, 184. Stayer of execution regarded as principal, to surety in contract dissenting from stay, 686. To issue from courts of equity, and bind as at law, 190. From supreme court, how to issue and bo returnable, 196. 667 668 INDEX. EXECUTIONS, ( Continued). Not to issue till opinion is delivered to clerk, 198. For costs in supreme and superior courts, to issue from said courts respectively, 199. May issue against after-acquired estate of discharged insolvents, 338. From court-martial, how and to whom issued, 407. Eent-crops exempt from execution, except for taxes, 368. To issue j'early for damages assessed in mill-cases, 429. To issue for residue unsatisfied by sale of estate attached, 168. Also for tax of solvent persons, having no property in the county, E21. Not to issue for fines and forfeited recognizances, till after sci.fa., 235. Execution from justice of the peace — see Justices of the Peace. From justice against person removing out of the county — how proceeded with, 365. EXECUTOR de son tort. See Executors and Administrators, 2S9. EXECUTORS AND ADMINISTRATORS. Letters testamentary and of administration granted by county court, 282. Administration, to whom granted, 282. When several in equal degree, 282. Executors not to act till of full age, 607. Executors and administrators to take oaths, 282. Forms of oaths, 435, 437. Administrator to give bond: Fonn of its condition, 282. Bond of administrator^encfen(e lite, how conditioned, 283. His duties and powers — may collect debts and sell by Ucense of court, 283. Not to be sued, 283. Powers to cease on probate or grant of administration, 283. His suits, how prosecuted, 283. Limitation of time to run from grant of common administration, &c., 283. Special administrator, in certain cases appointed by three justices, 283. His power and duties, 284. To give bond, 284. Administration, when granted by courts of equity, 284. Executors residing out of State to give bond within one year, 284. A man marrying an executrix to give bond, 284. Administering before letters, prohibited; penalty. Proviso, 286. In certain cases when no administration for three months, clerk to administer, 509. Persons intermeddling without letters, to forfeit $500, 508. Bonds of administrators, &o., how payable; remedy on them, 285. Inventorj' to be returned, when, 285. Perishable estate to be sold, 285. Other personal estate, when sold by order of court, 285. Terms of sale, 285. Powers under wills not prejudicing creditors, to be pursued, 285. Sales, &c., to be at public auction, between 10 and 4 o'clock, 286. Penalty for otherwise selling, &c., cases excepted, 286. Dignity of debts prescribed, 286. Administrators, &c., to advertise within two months, 286. Advertisements, how proved and perpetuated, 266. Executors, &c., to settle at the end of two years, 286. Refunding bond to be given on settling, 286. Remedy of creditors thereon, 266. Bond and descriptive list of property to be filed in county court, 287. Creditors to have sci.fa. on bond, when and how, 267. Property remaining seven years unclaimed, paid to university, 287. Executors, &c., in certain cases may have settlement by petition, 287. What due to absentee, or infant without guardian, paid to clerk, 287. Clerk liable on his bond ; allowed compensation, 287. Way invest trust funds in State bonds, 485. Debtor named executor not discharged, 288. Trust estates in personalty to be assets, 288. INDEX. 669 EXECUTORS AND ADfflNISTRATOES, { Continued). Executors, &c., allowed nine months to plead in court, 288. Also before justices of the peace, 286. Warrant returned to court, on plea of no assets, 288. Costs, how adjudged, when warrant returned to court, 288. Lien on estate not created by commencement of suit, 288. Lauds contracted to be sold by deceased, conveyed by executors, &c., 288. Commissions not above 5 per cent, allowed executors, &c., 288. Proviso as to sale of lands, 289. Sureties of executors, &c., in danger of loss may h.ive relief, 239. Proceedings on petition for relief, 289. Lands devised to be sold by executors, &c., by whom sold, 269. Who chargeable as executor de son tort, 289. Executors or administrators of executors or administrators, liable for devastarit, 290. Right of action to survive to executors and administrators, and executors of executors, 290. When personalty insufficient to pay debts, executors, &c., may sell real estate, 290. License to sell, how obtained, 290. Sale of part or whole may be licensed, 290. Heirs, &c., to be parties, 290. When petition may be heard, 290. Terms of sale to be directed by court, 290. Proceeds to be assets to pay debts and charges of administration, 291. Proceeds not disbursed, to be realty, 291. Bonds of admhiistrators, &c., held as security for real and personal assets, 291. Additional bond may be required, 291. What real estate subject to be sold, 291. Proviso for bondjide purchasers without notice, 291. Judgment in case of fraudulent conveyance, 291. Issue to try title may be ordered, 292. Executor to give bond, when licensed to sell, 292. Proceeds of all realty to be legal assets, 292. Specific devisees, whose lands are sold, entitled to contribution, 292. Undevised real estate, first charged with debts, 292. To what period this mode of selling realty applies, 292. Sales by heirs and devisees within two years, &o., void as to creditors, 292. Eight of dower saved, 293. Crops ungathered, shall go to executors, &o., and not to devisee or widow, 293. Service, how made on absent executors not having given bond, 203. Female executrix, &c., may swear to inventory, &c., before a justice, 293. Book debts proved by executors, &c., when and how, 114. Form of oath, 435. Administrator d. b. n. may have execution on judgment got by former administrator, 182. Capias in equity not to issue against executors, &c., unless by judge's order, 187. Rents due after death of tenant for life, to go to executor, &c., 369. Apportioned according to time of enjoyment, 369. Executor, &c., to report to clerk of county court an account of taxable real estate of deceased persons, 508. Surety paying debt of deceased principal to have like priority as creditor, 585. Executor competent witness to prove execution of wills, 608. Executor, &c., to proceed in two years to ascertain the share of a child, born after will made, 613. EXHIBITERS OF CURIOSITIES, tax on. See Revenue, 614. EXHIBITS. In equitj' cases supreme court proved by witnesses, 198. EXTORTION. Sheriff and other officei-s not to take unlawful fees — see Salaries and Fees. FACULTY. See Asylums for Deaf, cfc. ; University. FAIRS. Appointed by county courts, 294. Commissioners appointed to regulate them, 294. 670 INDEX. FAIRS, { Continued). Inhabitants to have free liberty of fairs, 294. Agricultural Society to provide place for holding annual fairs, 67. False judgment, see Recordari. FALSE LIGHTS ON SEA-COAST. See Crimes ani Punu-hments^lU. FALSE PRETENCES, CHEATING BY. See Crimes and PunislmenU, 2U. FALSE RETURNS. Penalty of sheriff for false return SoOO, 561. FEES. See Salaries and Feet. FELONY. See Crimes and Punishments. Not punished by particular statute, how punished, 207. FEME COVERT. See Husband and Wife; Deeds. FENCES. Planters to keep sufficient fences around cultivated ground, 291. Damages by stock when fence sufficient, how recovered, 294. To stock by persons not having legal fence, how recovered, 295. Penalty on slave injuring stock without order, &o., 295. Appeals from justice concerning stock, tried de novo, 296. Dan river sufficient fence, 295. North-west branch of Cape Fear river not sufficient, 295. Penalty for using North-west branch as a fence, 295. Burning, pulling down, or removing fences, misdemeanor, 223. To keep unlawful fences, misdemeanor, 210. May be put across canal or dam by proprietor, when, 256. FERRIES. See Soads, Ferries, 4-c. FINANCE, COMMITTEE OF. Committee of finance for counties may be appointed, 142. Duties and powers of, 142. Oath of members, 437. FINANCE COMMITTEE OF LEGISLATURE. To examine and report the state of the treasury, 693. FINES AND FORFEITURES. Fines, forfeitures, penalties, &c., to be collected by sheriff and paid in three months, 140. County wherein ofience is done to have fines, 141. May be remitted or lessened at any time by judge, 235. If paid into office to be refunded by clerk, 235. By county trustee, if paid to him, 235. May be remitted or lessened by county court, when, 235. Recognizances forfeited, remitted, or lessened before judgment, by county court, 236. Executions for fines, &c., not to issue till after scire facias, 235. Joint scire facias to issue on recognizances, 235. How to be executed, 236. Sureties of sheriff liable for fines, &c., 660. FIRE COMPANIES. Members of, exempt from militia duty, 399. FIRE-WOOD. To be sold in towns by the cord, on pain, &c., 354. FISH. See Inspections; Oysters, ij-c; Rivers and Creeks. FISHERIES. Fisheries and mines considered in valuing land for taxation, 519. FLAX-SEED. See Inspections, 349. FLOAT-BRIDGES. See Roads, Ferries, atul Bridges, 639. FLOUR. See Inspections. FOOTWAYS. Sec Roads, Ferries, and BrUlges. Paths, when put by proprietor across canals and dams, 260. Footways and hollow bridges — Overseer to make wliere court shall direct, 638. INDEX. 671 FORAGE. See Inspections, 354. FORCIBLE ENTRY AND DETAINEE. Forcible entry indictable, 296. Summary remedy before justitje for, 296. Jurors summoned by order of justice, 296. Penalty on sheriff and otliers failing to assist justice, 296. Restitution not awarded to party out of possession tliree years, 29T. Proceedings returned to superior court, 297. Justices, &c., acting informally not indictable, unless, &c., 297. All defects amendable, 297. FORFEITURES AND FORFEITED RECOGNIZANCES. See Fines mid Forfeitures. FORGERY. See Crimes and Punishments. Passing or attempting to pass forged bonds, &c., 214. Forging, or fraudulently issuing or passing certificates of stock, 215. Knowingly selling forged judgments, bonds, &c., 215. Forging licenses for slaves to trade, misdemeanor, 220. stamp, note, &o., of tobacco inspector, 343. Party whose name is forged a competent witness, 232. FORMS OF RETURNS, &c., for governor's election furnished by secretary, 313. FORMS OF TAX LISTS. See Revenue, 518. FORNICATION. See Bastard Children. When a misdemeanor — punishment, 211. FORTHCOMING BOND. See Executions, 278. FRANCHISES, SALE OF. See Cm-porations, 135. FRAUDS AND FRAUDULENT CONVEYANCES. Conveyances of lands or goods to defraud creditors, void, 298. Or to defraud purchasers, 298. Voluntary conveyances not void because of indebtedness of donors, 298. Indebtedness, evidence only of fraud, 299. Conveyances bonajide upon good consideration, valid, 299. Bondjide purchases without notice under deeds made on illegal consideration, valid, 299. Pui'chasers of estates fraudulently conveyed, to have relief in equity, 299. Proceedings by sci.fa. when property fraudulently conveyed, 299. What decree if defendants do not appear ; or appear and confess, 300. Proceedings when defendant denies the facts, 300. Where the judgment is rendered by a justice, 300. Contracts for sale of land and slaves void, unless iu writing, 300. Leases for mining also, 300. Gifts of slaves void, unless in writing and attested, 300, Proviso, as to advancements to children, 300. Sales of slaves not iu writing and attested, void, 300. Unless accompanied with actual delivery, 300. Contracts charging executors, &c., personally, or any with debts, &o., of others, to be iu writ- ing, 301. With Indians, to be in writing, and witnessed, &c., 301. Persons removing debtors to defraud creditors, liable for their debts, 301. Attorney guilty of fraud to pay double damages, 102. Real estate conveyed in fraud may be sold by executors, &c., to pay debts, 291. Proviso iu favor of bonajide purchasers without notice, 291. What judgment rendered in case of fraudulent conveyance, 291. Conveyances in fraud of tax ou collateral descents, &c., void, 509. Marriage settlements to be registered, else void as to creditors, 245. When good against creditors, 245. Release in fraud of penal action, void, 180. FREE NEGROES. See Slaves and Free Negroes. Living with others, or on their land, to be listed by employer or landlord, 616. ^^2 INDEX. FUGITIVES FROM JUSTICE. fZT ""Z f \"^-'"'^ '" ''"''' '•"P"^-^^ ^■^''■•Kea with capital crimes, 229. From otlier States cliarged with high crimes, to be committed, 229. GAMING. See Crimes and Punishments; Slaves ami Free Negroes ' White person playing at games with slaves, &c., guilty of misdemeanor, 225. l-articipator in unlawful games shall testify of the gaminf 236. Not to be prosecuted therefor, 236. °' Bilhards and g.aming in five miles of Chapel HU], forbidden, 596 GAMING CONTRACTS. All gaming or betting contracts, void, 302. Securities for money or property lent for betting, void, 302. PLiyers and betters competent witnesses, 302. GARNISHEE. See AUachmeiU. GATES AND BARS. Tax on gates of turnpikes and across highways, 506. May be erected across cart-ways, 541. Gates erected across highway by leave of court, 541. Penalty for injuring gates or bars, 541. GENDER. See Statutes, Construction of, (fc, 581. GENERAL ASSEMBLY. See Slate Constitution. Senate and house of commons convened, denominated the General Assembly 13 Election for members of, when and where held, 303. ' Senatorial districts, of what counties composed, 303. House of commons, how composed, 304. Qualification of members — see State Constitution, 13. Members, how elected, 304. Separate places of election established or discontinued by county court 304 Time and places advertised by sheriff, 305. ' Inspectors of each precinct appointed by county court, 305. Failing to act, guilty of misdemeanor, 305. Clerk to furnish a list to sherifl-, who shall notify them, 305. If not appointed or they refuse to act, how supplied, 305. Boxes for receiving tickets furnished by slieriff, 305. Tickets how received and put into boxes, 305. Voters how to give in their tickets, 305. A list of voters to be kept, 305. Boxes how opened and tickets counted, 305. Qualification of voters, 14, 23. May be required to swear to their quaUficatious, 306. Inspectors judges thereof, 306. Manner of maldng up, returning and comparing polls, and declaring persons elected, 306. Proviso, as to Carteret, Currituck, and Hyde counties, 300. Polls in senatorial districts, how made up; where compared, 308 Penalty on officer for default, $500 and misdemeanor, 307. Polls examined, &c., in presence of three justices, 307. Tie election, how decided, 307. Pay of sheriff for comparing polls in senatorial districts, 307. Vacancies before session to be notified by sheriff to governor, 307. Failing to notify, misdemeanor, 307. Members resigning, &c., to notify governor, 308. Governor to order a new election, 308. Elections under writs from governor or speaker, held as other elections, SOB. What time of day opened and closed, 308. List of votes, on request, furnished momborii and candidates, 308. Penalty on sherifl' neglecting duty in regard to elections, 308. Held by coroner when no sheriff, 308. When no sheriff- or coroner, three justices to appoint a freeholder, 808. If sheriff die, successor to make returns, 308. INDEX. 673 GENERAL ASSEMBLY, ( Chntinued). Musters not to be on day of election, 308. Nor anned men assembled at the place : — Pen.ilty, 303. Bribery at elections, penalty, 309. Treating at elections, penalty, 309. Members giving money to secure their elections, expelled, 309. Assembly to meet on third Monday in November, 309. May be convened in certain cases, by governor and council, 309. When by the council, 309. Members to convene, and attend, 309. Penalty for failing in their duty, 309. May be remitted by Assembly, 309. To have freedom of speech, and protection from arrest, &c., 309. Returned to Assembly by sheriff, 310. Persons contesting seats, how to proceed, 310. Witnesses failing to attend, penalty on, 310. Voter shall testify how he voted, 310. Pay of witnesses, 310. Private laws — proceedings to procure them, 310. Acts of Assembly, when to take effect, 311. Journals of, deposited in office of secretary — copies certified by him, 311. Principal clerks to hold office till others appointed, 311. Two door-keepers appointed by keeper of capitol or secretary, &c., 311. Their pay, 311. Grave-stones for members interred in Raleigh, 311. Member not to serve as sheriff, 558. Pay of members and officers of Assembly; how ascertained and paid, 644, 845. GIFTS. Of slaves to be proved and registered, 244. All deeds of gift to be registered, 244. void, unless m writing and attested, 300. GOVERNOR AND COUNCIL. Governor, how chosen, 24. Election of, when held and how conducted, 312. His qualifications, 15. His oath, 438. His salary, 542. Returns of election by sheriff, when and how made, 312. Examined by secretary of State, 312, If not regular, messenger sent after them, 31S. Poll books filed by sheriff with clerk of county court, 313. Clerk to give receipt, which sheriff shall transmit to secretary, 313. If proper returns not made, secretary to inform Assembly, 313. Proceedings thereupon, 313. Forms of returns and directions furnished by secretary, 313. When opened, and by whom, 313. Election, how detenniued, 314. Clerk omitting any duty about the election to pay $100, 314. Sureties liable for forfeitures, &c., of returning officers, 314. Expenses of messenger taxed with the costs, 314. Sheriff's pay for returns, how ascertained and paid, 314, Persons contesting eleetion to give notice, &c., 314. Proceedings thereon, 314. Depositions how tsiken, 314. Governor to reside in Raleigh — provided with house, &c., 315. Private secretary appointed, 316. Letter book kept in executive office, 315. Council to meet in Raleigh, 316, Seals for State and courts procured by governor, 315. 57 674 INDEX. GOVERNOn AND COUNCIL, ( Continued). How prepared and paid for, 315. Lost State seals to papers, how replaced, 315. Thanksgiving day set apart by proclamation, 315. Certain corporations created by letters patent, issued by governor, 136. To appoint judges of special terms, 160. Governor and council may convene Assembly, when, 309. Governor may remit militia fines and penalties, 414. Governor and judges of supreme court to be trustees of the library — and appoint librarian, 4S6. Governor to designate documents to be preserved and bound, 4S6. To appoint keeper of arms at Ncwbem, 481. To procure standard measures, 599. Not to pardon neglscts, in certain elections., of returning officers, 225. Governor and others a board to take charge of public buildings and lots, 554. Counsellor of State not to serve as sheriff, 558. GRAND-JURY. How many to be drawn, 163. Oaths of foreman and members, 439, 440. Oath of officer, 440. Names of grand-jurors informing, indorsed on presentment, 229. To be charged to present free negroes coming into the State, 575. To present freed slaves violating the law concerning their emancipation, 575. To visit the jail at each court, 145. To be furnished by sheriff with a list of retailers of liquors, 562. To present orphans without guardians, and abuses of guardians, 820. List of taxes received by sheriff from clerks, and on unlisted taxables, laid before gi-and-jury, 526. GRANTS. See Entries and Grants. GRANTS AND WARRANTS ON THE TREASURY. Not to be paid unless they express the consideration, 593. Nor unless first entered and certified by comptroller, 128. GRAVE-STONES. Provided for members of Assembly interred in Raleigh, 311. GROWING CORN. Subject of larceny, 206. GUARD FOR INSANE. See Asylum. GUARD FOR JAIL. See Prisoners. GUARDIAN AND WARD. Fathers, by deed or will may appoint guardians, 317. Superior and county courts to have cognizance of all matters concerning orphans, 317. To appoint guardians and take bonds, 317. Justices, &c., liable for taking insufficient security; Proviso, 317. Court may commit the person to one, and estate to anotiier, 317. May appoint yearly sums for support and education, 317. Commissions to tutor on disbursements only, 317. ' In case of divorce, who to be guardian of the children and their estates, 318. May commit the custody to the parents alteniately, 318. Bonds how payable, and remedy on them, 318. Names of justices accepting bond to be recorded by clerk, 318. Proviso for justices dissenting, 318. Guardians of estates of children whose fathers are alive, 318. One bond given when wards have property in common, 818. Clerks of superior court, and clerks and masters to certify appointment of guardian to county court, 319. Bonds to be renewed triennially, 319. Clerk to summon guardians failing to renew, 319. Guardians to render on oath account of ward's estate, 319. Orplians' court held — accounts rendered annually, 319. Clerk, ex ojficio, to summon defaulting guardians, 319. INDEX. 675 GUARDIAN AND WARD, (Continued). Power and duty of courts, when guardians abuse their trust, 319. And when they or their sureties are likely to become insolvent, 319. Guardians removed, or liable to be, to be reported to attorney-general, &c., 320. How to be proceeded with, 320. Receiver appointed to manage estate under direction of court, &o., 320. Compeusation to attorney-general and solicitor, 320. Property how obtained from receiver, 320. Grand-jury to present orphans without guardian, and abuses of guardians, 320. Estates of such orphans to be secured, &c., 321. Fee of clerk for summons, by whom paid — Proviso, 321. To take possession of wards' estates, 321. To sell by order of court their perishable estate, 321. To lend their money, and account for interest annually, 321. Bonds to bear compound interest, 321. May be assigned to wards on settlement, 321. Slaves and stock, when to be kept on land, 321. Proviso, if stock becomes too numerous, 321. Lands and slaves, when and how to be rented and hired, 322. Houses, fences, &c., to be kept in repair, 322. Sales, hirmgs, &c., how made, 322. Guardian liable for suffering ward's land to lapse, or be forfeited for taxes, 322. When he may sell timber, &c., 322. Allowed disbursements and expenses, and commissions, 322. Wards residing abroad, and havmg property in the State, may remove it, 322. By bill or petition in equity, 323. Powers of courts of equity over orphans, &c., not abridged, 323. Estates of infants sold to promote their interest, when and how, 323. JIanner of makuig sale, and how proceeds secured and appUed, 328. Wien ward is indebted, how guardian shall sell his property, 324. Proceeds to be appUed as assets of deceased debtors, 324. Sureties of guardians in danger of loss, how reUeved, 324. Female guardians may swear to their returns before justice, 324. Appeal from appointment or removal of guardian, 72. Sureties of guardian discharged three years after ward's age, 373. Guardian may invest ward's funds in State bonds, 485. Action of account lies against executors, &c., of guardians, 180. HABEAS CORPUS. How obtained in vacation, 325. Duty of the officer, &c., to whom the writ is directed, 325. Of the judge on its return, 325. To be applied for, within two terms after imprisonment, 326. Returned in open court, when in session, 326. Penalty on judge refusing the writ, 326. On officer neglecting to obey it, 326. Penalty for again imprisoning one released on the writ, 326. Persons committed for capital offences, entitled to trial or discharge, when, 326. Writ granted in civil cases, 326. Subpoenas to issue for parties, 326. Costs of writ, how and by whom paid, 326. Party in execution not discharged on habeas corpus, 182. HARBORING. Harboring runaways, or enticing away slaves — misdemeanor, 218. HARBORMASTER. SeePihU; Quaranline, ij-c. HEADING. See hispeclions. HEALTH. See Quarantine and Health. HEALTH OFFICER. See Quarantine and Beallh. 676 INDEX. HEIRS. See Descentt. Limitation to the heirs of a living person to include his chiUren, unless, &c., 270. HOGS. See Cattle, Stealing, or knowingly conveying away stolen slaves, felony, 204. Aiding them to escape from the State, felony, 204. Teaching to read or write, use of figures excepted, 218. Conspiracy of, how punishable, 571. 718 INDEX. L: — V- SLAVES AND FREE NEGROES, (CmlinuuT). Insurrection of, how punishable, 671. Free persons conspiring with slaves, how punished, 672. Slaves convicted of conspiracy, &c., to die or be transported, 572. Eetnrning voluntarily, after transportation, to suffer death, 672. If brought back, forfeited, 572. In cases of insun-ection, &c., commission of oyer and terminer may issue, 672. What evidence received in trials for such offences, 672. Judge may continue the cases to regular term, 573. Prosecuting officer in such court to be paid, 673. Guilty of perjury punished as freemen, 678. Convicted of felonies not capital, how punished, 677. Superior court to have original jurisdiction of felonies, &c., committed by slaves, 577. ■ To be tried as freemen, 677. jT -Wlien witnesses, warned to speak the truth, 578. Cs^Owner to have ten days' notice of trial ; liable for costs, 677. ^When owner cannot be notified counsel appointed, 578. •->^Counsel to have fees, paid by county, 678. Slaves not to go armed, or hunt with a gun, 569. — ■^ Nor hire their own time; indictable therefor, how punished, 570. ^J^ Inferior offences of slaves, what they are, 570. Cognizable by one justice, 671. Appeal allowed to master, 671. Slaves trespassing on boats, canoes, &c., whipt, 113. Punished for going on shipboard at certain times, 221. For injuring stock, unless, &c., 295. Penalty for acting as pilots, 469. Stock of, to be taken and sold by wardens, 474. Use of blankets, &o., in prison by slaves, paid for by owner, 477. ''Tenalty on ordinary keeper entertaining slaves, 448. Description of slaves working in Dismal and other swamps, to be taken and recorded by clerk, 566. Certified copy to be kept by slave while at work, 567. Penalty on owner for neglect, 567. Slaves without certificate liable to be punished, 667. Reward of $25 for taking them up. Jlay be treated as runaways, 667. Whites working with runaways, or slaves without certificate, guilty of misdemeanor, 567. Free negroes to procure like certificates, else guilty of misdemeanor, 667. Certificated slaves, &c., not to work with uncertificated — misdemeanor, 567. Forging certificate punishable with pillory, &c., 568. Certificate not required as to certain swamps; or reclaimed swamp land, 668. Nor for temporary cutting of timber, 668. Slave or free negro attempting rape on white female, to suffer death, 573. v^ree negro not to migrate into the State, W5. •-'Otherwise guilty of misdemeanor, and fined $500, 676. /v-Jpenalty for bringing free negroes into the State, 575. Migrating hither, or their issue, not to become inhabitants, 576. To be removed; guilty of misdemeanor, 675. Going out of the State and absent 90 days, not to return, unless, &c., 675. Grand-jury charged to present free negi-oes coming into the State, 675. Not to preach in public, 576. Vagabond free negroes, how dealt with, 676. Hires of, paid to county trustee, 676. Free negroes not to intermarry with slaves, 676. Nor gamble with slaves. Nor play with them at certain games, 576. Nor suffer slaves to gamble in their houses, &c., 577. Nor entertain them, Sunday or at night, 577. Nor hawk or peddle without license,_677i___ Nor wear or keep in house guns, &c., without license, 677. Nor sell spirituous liquors, 677. I INDEX. 719 SLAVES AND FREE NEGROES, (Cmiinued). Or at certain times to go on board vessels — misdemeanor, 221, Marriage between white and free negro, voi d, 391. Free negroes not taxed for schools, 8S4. Nor enrolled in militia, except as musicians, 399. In certain cases, may be whipped instead of imprisoned( 578.^ Committed for fines and costs, or in bastardy, not discharged as insol vents. May be hired out for fines, or support of bastard child, ^78j_579]) If term of hire be long as five years, fine, &o., discharged thereby, 579. Absconding, to serve double time, 579. Hirer recognized to feed, clothe, &c., 579. Not to be removed out of the county, 579. On breach of recognizance, discharged from service, 579. And entitled to the forfeiture, 679. Certain children of free negroes bound out, ,77^ vTtights and duties of master and apprentices — see 4]>^J^^^}i}£f^ Evidence of slaves and free persons of color, against whom allowed, 578y» Free negroes, who deemed such/^SO^ Conveying free negroes from the State, with intent to sell, felony, 204. Selling free negroes within the State, felony, 204. Conveying within the State, with intent to sell, misdemeanor, 204. SLEIGHT OF HAND PERFORMER, taxed, 515. SLOPES AND DAMS. See Oysters and oilier Fish. SOLICITORS. See Attorney- General and Solidtors. SPECIAL COUNTY COURT. Appointed at discretion by the justices, 155. Pay of members, 155. SPECIAL TERM OF SUPERIOR COURT. Appointed by presiding judge when necessary, 160. No process except snbpcenas returnable thereto, 160. May continue till a trial begun is finished, 160. SPECIE. See Currency. SPRINGS. See Wells and Springs. STAGE-PLAYERS, tax on. See Revenue, 514. STAMPS. See Weights and Measures. STANDARD KEEPER. See Weiglla and Measures. Form of oath, 442. His fees, 553. STANDS FOR CATCHING FISH. See Oysters and other Fiili. STATE. When the buyer of land sold for taxes, 524. To be stockholder in companies to the amount advanced, 356. Debts due the State recovered on motion, 529. To have priority in payment of its debt over other creditors, 595. STATE BONDS. See Public Debt. STATE HOUSE. See Seat of Government. Malicious burning of State house or State offices, felony, 203. STATE'S DAY. See Criminal Proceedings. Day for trial of crimes fixed by county and superior courts, 234. Notice of the day to be given by the clerk, 234. Witnesses in criminal cases not to attend till State's day, 234. STATIONERY. Secretary to furnish State offices with stationery, 557. STATUTES — REPEAL AND CONSTRUCTION OF. Repeal of statutes not to affect suits pending, 580. Rules for construing statutes, 580. 720 INDEX. STATUTES — EEPEAL AND CONSTRUCTION OF, IContinued). Singular and plural number, masculine gender, &c., 580. Authority of public officers, &e., to be exercised by majorities, unless, &o., 581. " Month " and " year " — " oath " and " sworn," 681, " Person " — "preceding" and "following," 581. " Seal" — " will" — "written" and "in writing," 581. "State" and "United States," 681. Statutes repealed by Revised Code — see Revised Code. STAVES. See Inspections. STAY OF EXECUTIONS. See Justices of the Peace ; Pilots; Principal and Surety. Executions from justice stayed in all cases, unless otherwise provided, 363. Security for stay how given, 364. Garnishee before justice, may stay execution, 9". Not allowed in suit on former judgment, 364. Nor on judgment for pilotage, &e., 462. Surety in contract may dissent from staying the execution, 585. And then not liable to the staying surety, 585. STEAMBOATS. Profits on money vested in, taxed, 509. STOCK. See Cattle and other Stock ; Fences; Strays. Altering marks and mismarking beasts, punished as larceny, 214. Maliciously and wantonly killing stock in certain counties, 223. Killing or injuring stock running at large, misdemeanor, 223. Penalty on persons killing stock in the woods and not informing of it, 116. Stock of slaves to be sold by the wardens, 474. STOCKS. See Court Houses ; Prisons, cj-c. STOCKS OF THE STATE. See Crimes and Punishments; Treasurer; Ptihlic Debt. State to be stockholder in companies to the amount advanced, 356. Certificates of the State's stocks to be registered and indorsed by secretary, 694. Copy from secretary's office good on loss of original, 594. STOCKS OF CORPORATIONS. See Corporations. Shares of stock personal estate, 138. Not to be less than $50 when created by letters patent, 136. Fraudulently making or issuing certificates of stock, punishment, 215. Knowingly transferring fraudulent certificates, pimishment, 215. STOLEN GOODS. Keceivers of, may be punished before conviction of the thief, 213. Counts for receiving, joined with larceny and trading with slaves, 232. On conviction of robbery or larceny goods restored, 234. STONE HORSES AND MULES. See Cattle and other Slock. STRAYS. Rangers appointed by county courts, 582. Information of strays made to ranger, 562. To be valued and advertised, 582, Oath of stray valuers, 443. Book for entry of strays to be kept, 582. Reward to taker up, 583. Property not proved to belong to taker up, after one year, 583. May be reclaimed, 583. Expenses of keeping, how ascertained, 583. If not claimed in a year, two thirds of value paid to county trustee, 583. Owner may reclaim of the county, 683. Taker up to give bond, if value of stray exceeds four dollars, B83. Not answerable for its death, unless, &c., 584. Freeholders only shall take up and enter strays, 584. But any person may take up and retain them, 584. Ranger may administer oaths, 684. INDEX. 721 STRAYS, {aminued). To make returns to county court, 584. His books to be open for inspectiou, 584. County trustee to collect moneys accruing under this chapter, 584. Kangers not paying over money, penalty, 684. Duty of taker up when stray (lies, or is reclaimed, 584. Penalties under this chapter belong to the county, 585. STUD HORSES. Not to be exhibited in half mile of religious assemblies; proviso, 500. Tax on, 507. SUICIDE. See Crimes ami Punishments, 208. SUITS. See Courts, County and Superior. Tax on indictments and lawsuits ?1; on equity suits $2; — for the county, 140. SULKIES, tax on. See Revenue, 510. SUNDAY. Process in civil cases not to be executed on Sunday, 168. No person to work on Sunday, 597. SUPERINTENDENT OF COMMON SCHOOLS. See Literary Fund and Common Scliools. His salary, 642. SUPERIOR COURTS. See Courts, County and Superior. SURETY AND PRINCIPAL. Summary remedy for surety against principal, 585. Surety may sue cosurety for ratable part of debt paid for principal, 585. May dissent from stay of execution, 685. And then not liable to surety for the stay, 585. Officer, how to collect in such case, 586. Surety paying debt of deceased principal, to have like priority as the creditor, 586. Defendants may show they are sureties; the fact to be found, 184. Property of principal to be first sold, 184. Sureties of executors, c&c, in danger of loss, how relieved, 289. of guardians in danger, &c,, how relieved, 324. of sheriff liable for all fines and amercements, 560. of returning officers in governor's election, liable for theii" forfeitures, 314. of sheriff on his death may collect the taxes, 521. may report sales of land for taxes, 521. In suits on official bonds and bonds of executors, &c., evidence against principal good against sureties, 273. SURVEYS AND SURVEYORS. See Entries and Grants. Survey in case of disputed boundary, how made and by whom, 183. Charges of, taxed as costs, 163. Copies of plats, &c., of survey from secretary's office, evidence, 272. Oath of surveyor, 443. His fees, 552. Suit on bond of surveyor by party injured, 445. To be brought in six years, 373. Board of valuation to order survey, in certain cases, 519. SWAMP LANDS. See Literary Fund; Entries and Grants. SWAMPS. See Slaves and Free Net/roes. Description of slaves and free negroes working in certain swamps, to be taken and recorded by clerk, 566. TAR. See Inspections, 351. TAVERN-KEEPER. See Ordinaries and Inns ; Crimes and Punishments. Tax ou. See Revenue, 510. TAVERNS. See Ordinaries and Inns. TAX COLLECTORS. See Revenue ; Towns. To be sworn, 621. TAXES. See Revenue; Cknmty Revenue and Charges; Toums. On what subjects counties may lay taxes, 140. On what, towns may, 588. Sheriff may distrain for taxes, 521. 61 722 INDEX. TAX LISTS. SeeBevenue; Tomnt. Forms of, prepared by treasurer, 618. TAX RECEIPTS. CoUector's receipts to show separately the State and comity tax, 529. TEACHING SLAVES. See Crimes and Punishments. To read or write, &c., except the use of figures, misdemeanor, 213. TENANTS IN COMMON. See Joint-Tenants. To have partition by court, 452. Mode of proceeding. See Partition, Estates of, how sold for tax ■where some of them are infants or lunatics, 523. TERRITORIES — Included in " United States," 581. THANKSGIVING-DAY, set apart by proclamation of governor, 315. THREATS AND THREATENING LETTERS. See Crimes and Punishments. Sending letters of menacing demand for money, misdemeanor, 224. Or threatening to accuse of infamous crimes, to extort money, 224. TOBACCO. See Inspections. TOBACCO PICKERS. See Inspections. Form of oath, 443. Fees of tobacco picker, 554. TOLL-BRIDGES. See Boads, Ferries, and Bridges. Allowed by county court, when, 538. To be kept in repair, or toll forfeited and owner indicted, 53S. Owners of ferries may substitute toll-bridges and take tolls, &c., 538. Owners of bridges to make draw where necessarj', 638. Bonds taken by county court of owners of bridges and ferries, 538. Tax on toll-bridges, &c., 507. TOLLS. See Corporations; Hoods, Ferries, aTid Bridges. May be taken in execution, when, 135. Of ferries regulated yearly by county court, 638. Persons attending musters not to pay tolls on bridge or ferry, 409. Tax on tolls of ferries, 607. TOMBSTONES. See Crimes and Pumahments ; General Assemhly. TON TIMBER. &ee Inspections, Zfil; Crimes and Punishments, 22S. TOWN CONSTABLE. See Towns; Ccmlailei. TOWNS. Incorporated towns may elect commissioners, 587. To be a body corporate, how styled, 587. Qualification of commissioners and voters, 587. First election — where held, and number of commissioners, 587. When afterwards, and how conducted, 587. Inspectors of elections, — their duty, 687. Election tied, decided by lot, 687. Number of commissioners and time of election may be changed, 587. On change of time or failure to elect, officers in, to hold till election, 588. Vacancy, how filled, 688. Mayor may be elected — Tie vote how detei-mined, 588. Term of oflice — Vacancy, how filled, 588. Shall preside at meetings of commissioners, take oaths, &c., 588. Shall have judicial powers; — their extent, 588. Appeal allowed from his judgment, 588. Commissioners to take oaths, 688. Their powers; — to make by-laws, &c., 588. May lay tax — on what, 688. Appoint constables and other oflScers; fix their compensation and take bonds. Markets, may establish and regulate, 589. Nuisances, abate, 589. Streets and bridges, keep in repair, 689. Improvements, may make by assessment of labor, &c., 589. May appoint overseer of streets, 589. Citizens exenipt from working on roads, 589. INDEX. 723 TOWNS, (Gmfemierf). Citizens liable for neglect to work, as road hands are, 589. May appoint a town patrol, 589. By-laws, may enforce, by penalties, 589. Baker's bread, its quality and weight may regulate, 589. List of taxables to be taken by mayor, 589. Slaves of non-residents, by whom listed, 589. Double tax when to be paid, 590. Assessors of real estate appointed: their oath and duty, 590. Town constables ; their oath, power, and duty, 590. Shall collect tax, give bond, and have the powers of sheriff to collect, 590. Officers, refusing to quahfy, to pay $25, 590. Provisions of this chapter to apply to all incorporated towns, unless, &c., 590. Tax on dogs — If not paid, how enforced, 590. Annual statement of taxes and expenditures, to be published, 590. Otherwise to forfeit and pay SlOO, 590. Town auctioneers to give bond, 104. JIalicious burning of certain houses of incorporated towns, felony, 203. TRADES AND TRADING. See Revenue. Tax on capital employed in, 510. TRADING WITH SLAVES. See Crimes and Punishments, 219,220. Fire-arms or other weapons not to be sold or given to slaves, 219. Punishment and penalty for unlawfully trading with slaves, 220. TRANSCRIPTS. See Appeals. Clerk of superior court to give receipt for, and indorse day of delivery, 74. TREASURER. Treasurer biennially elected, his oaths and bond, 591. Form of bond, 591. Duplicates given ; how indorsed, and where deposited, 592. On failure to give bond, another elected, 592. If failure occur in recess, governor and council to appoint, &c., 692. Judgment how entered on bond, 592. " Treasurer to keep account of receipts and expenditures, 592. To report to Assembly at each session, 592. Committee of finance to examine treasury, &c., 593. No grant or warrant paid, unless it express the consideration, 598. Names of defaulting revenue officers to be published, 593. Monthly settlements to be made between treasurer and comptroller, 693. Balance in treasury deposited in banks, 693. Duplicate certificates of deposits to b« issued, 593. Treasurer may check for deposits, 593. Duty of treasurer and governor when bank suspected of insolvency, 593. Treasurer to give duplicate receipts for money paid to him, 593. No receipt good without comptroller's indorsement, 693. Accounts of literary and other funds to pass through comptroller's office, 594. Certificates of the State's stocks to be registered and indorsed by secretary, 694. Comptroller to indorse them, when allowed as credits to treasurer, 694. Copy of, from secretary's office good, on loss of original, 694. In certain cases may appoint agents, 594. May have judgment .against agents, as against sherlifs, 694. Office hours of treasurer, 594. Penalty for failing to proceed against delinquents, 594. Proceedings against treasurer and sureties for defalcation, 594. Debt of State to have priority, 594. May receive entry money, 266. Also public money recovered by suit, 127. Receipts therefor, filed with comptroller, 127. To pay no warrants, &c., unless entered and certified by comptroller, 128. Fraudulent entries and statements by treasurer, how punished, 216. Not to receive notes of banks issuing bills less than $3, 238. To report to literaiy fund what counties have levied tax for support of deaf, &c., 82. To receive cash funds of and keep account with asylum for deaf, &c., 83. 724 INDEX. TREASURER, ( Continued.) To receive moneys of insane asylnra and taxes laid therefor, 90, 91. To pay ont moneys for support of asylums, 83, 90. To keep the accounts of the Board of Internal Improvement, 356. Also of the literary hoard, 378. To keep a memorandum of State bonds, with numbers, &c., 484. May recover on motion, penalties imposed in chapter " Revenue," 528. TREASURER OF PUBLIC BUILDINGS. See Court Ilmises, Prisons, tfc. TREATING AT ELECTIONS. See General Assembly. TRESPASS. In trespass for assault and battery, if damages be under Si, no greater costs recovered, 177. In trespass, q. c.f., defendant may disclaim and plead tender, &c., 177. In trespass, assault and battery, and ejectment against several, unless all acquitted plaintiff shall recover costs, 177. Trespass on public lands, misdemeanor, 210. Trespasser may be removed by sheriff, 210. Malicious trespasses and injuries to real estate, misdemeanor, 224. TRUSTEES. May invest trust funds in State bonds, 485. Infant trustees, how to convey, 246. TRUSTS. See Mortgages, and Deeds in Trust ; Uses. Trnst estates in personalty to be assets, 288. Liable to execution, -when, 275, 276. TUMBLERS, tax on. See Revenue, 514. TURNPIKES. Lands for, how condemned — see Internal Improtement, TURPENTINE. See Inspections, 550, 551. Turpentine distillers, tax on — see Revenue, 511, UNITED STATES. See Statutes ; Repeal, cfc, 581. UNIVERSITY. Learning to be promoted in universities — see State Constitution, 18. License to retail in two miles of C. Hill forbidden, 696. Places in two miles of, for sale of liquors, forbidden, 595. No person, without written permit, to sell liquor to be used by students in two miles, &c., 596. Electioneering treats in two miles, forbidden, 596. Billiard and gaming-tables in five miles, forbidden, 596. All exhibitions in five miles without license, forbidden, 596. Violation of preceding sections, misdemeanor, 596. Contracts with minor students without permission, void, 896. May be avoided under plea of general issue, 696. Incapable of confirmation, 696. University endowed with escheats, 696. Estates remaining seven years unclaimed in hands of executors, &c., paid to University, 267. Property of, not taxed, 606. * For charter of, &c., see 2d Vol. of "Revised Sintutes," published in 1836. USE AND OCCUPATION. See Landhrd and Tenant. Landlord may recover for use and occupation where demise is not by deed, 868. One let into possession under contract of purchase, liable for, 368. USES. See Titists. By conveyance to uses, possession transferred to use, 270. Widows may be endowed of, 602. Liable to sale under execution, 275. Churches and religious societies may possess, &o. — of what value, 600. USURY. No more than six per cent, to be taken for interest, 697. Persons taking more to forfeit double the value forborne, 597. VAGRANTS. To be recognized and indicted, 210. VARIANCE. Between judgment and execution not to aiTect title of purchaser, 274. INDEX. 725 VENUE. Of suits, &c., at law, 164. Real and penal actions, pleas of the State, &c., brouglit in the county where cause of action, &c , 164. Other actions, where both parties reside, 164. Where, when plaintiff resides out of the State, 164. Where, wlien plaintiff and defendant reside in different counties, 164. Defendant not to be sued in superior court out of his county for less than SlOO, 164. Actions otherwise brought abated on plea, 164. Of suits in Equity. No decree against non-resident, unless cause of suit arose, or property in question be, in the State, 190. Of Chimes. Crimes committed on waters dividing counties, where tried, 232. Improper venue of indictments to be pleaded in abatement, 232. On issue joined what judgment in misdemeanors, what in felonies, 233. Assault and death in different counties, trial where assault, 233. Assault in the State, and death out of it, trial in the State, 233. VESSEL. See Pilots; Quarantine and Health ; Wrecks. Slaves not to be carried on vessels unless permitted by, or travelling with their masters, 579. VICE AND IMMORALITY. No person to work on Sunday, 597. Penalty for profanely swearing before a single justice holding court, 598. VISITORS. Who shall be visitors of asylums, 91. VOLUNTEER COMPANIES. See miilia. WARDENS OF POOR. See Poor. Pay of, 474. Exempt from working on roads, 541. WARRANTS. See Justices of the Peace; Pihts. General warrants forbidden — see Declaration of Rights, 9. Warrants for survey of entered land — see Entries and Grants. WARRANTS ON TREASURY. See Treasurer. Treasurer not to pay warrants or orders unless their consideration is expressed, 693. WARRANTY. Collateral and certain other warranties void, 271. To stand as personal covenants only, 271. WASTE. For and against whom action for waste lies, 598. Tenant for life aliening, still to be liable, 598. Judgment for treble damages and place wasted, 698. Action by tenant against cotenant, 598. Heirs shall have the action, 598. Lands of infants to be kept from waste, 322. Guardian may sell timber, when, 322. WATCHES, tax on. See Revenue, 510. WAY. See Religious Societies ; Roads, Ferries, (fc. To pl.aces of worship not to be stopped, on pain, i&c, 500. Cartways over others' lands, how obtained, 640. WEIGHTS AND MEASURES. What weights and measures to be used, 599. Justices to procure weights and stamps, 599. Governor to procure measures, 599. Standard keeper appointed — His oath and bond, 599. Weights and measures tried by standard keeper once in two years, and certificate given, 599. Penalty for not having them examined, 600. For selling or buying by, when not stamped or branded, 600. Acre of land, of what measure to be, 600. WELLS AND SPRINGS. Wilful injuries to, misdemeanor, 221. '26 INDEX. WIDOWS. SeeLeffacies. Widows of intestates, and widows dissenting from husband's will, may take dower 601. Fraudulent conveyance not to defeat dower, 601. ' Dower to include dwelling-house, unless, &;c., 601. Proceedings to obtain dower, 601. When lands lie in several counties, 602. Jurj' not bound to assign dower on each tract, 602. Proceedings to be summary, 602. Jury, how to allot in case of dissent, 602. Allowed in rights of redemption, trusts, &c., 602. How obtained of lands in this and other States, 602. Dower, and land in lieu, not subject to husband's debts, 602. Entitled to emblements>603. Sale by widow of dower land, to convey her right only, 603. Wife eloping with adulterer, barred of dower, 603. Widow dissenting, to take as on intestacy, 603. Her share allotted if practicable, without deranging the will, 603. Not dissenting, to have a share of intestate property, 603. Claiming under will, as to creditors considered a legatee, 603. Widows of intestates leaving no kindred, to have all the personalty, 603. Proceedings to obtain the same, 603. To give bond to refund, if kin appear in seven years, 604. Saving for infants and persons mm compos, 604. Widow of intestate may take possession of personalty till administration, 604. Provided she applies for letters at the first court, 604. Entitled to year's provision, and certain articles if on hand, 604. May retain specific articles, 604. Proceeding to obtain year's provision, 604. What decree made on confirmation of report, 605. When petition filed before administration, what to be allotted, and how, 606. Property allotted, vested in widow for self and family, 605. WILLS AND TESTAMENTS. How executed, 606. Ages of testators and executors, 607. Wills of married women, how and where proved, 607. Appointments by will, executed like other wills, 607. All property, rights, and interests, disposable by will, 607. Construed to speak as at the death of testator, 008. Lapsed and void devises to pass under residuary clause, 608. A general gift to include estate which testator has power to appoint, 60S. Executor competent witness, 608. Devises and bequests to witnesses, void, 608. What nuncupative will good, where the estate exceeds $200, 609. How proved; next of kin cited, &c., 609. County courts to Iiave jurisdiction of the probate of wills, 609. Production of, compelled by court, 609. Persons refusing, committed to jail, 609. Proved in the county where testator resided, 609. Manner of proving them, 609. When caveated, tried by jury, 609. Made in another State disposing of property in this; how proved, 609. Wills of non-residents, how allowed and recorded in this State, 009. Not to pass lands in this State, unless executed according to its laws, 610. Wills of citizens proved elsewhere, how certified, proved, and recorded here, 610. Wills to be filed in clerk's oflice, 610. None effectual without probate, 610. Probate conclusive, when, 610. Copies evidence of their contents, 610. Written wills, how revoked, 610. Revoked by marriage, 611, Not by altered circumstances, 611. Nor by conveyances, after will executed, 611. Devises construed iu fee unless the contrary appear, 611. 727 WILLS AND TESTAMENTS, { Coniimed). What slaves pass under " increase," 611. Gifts to issue dying and leaving issue living at testator's death, to vest in living issue, 611. Child born after parent's will executed, entitled as on intestacy, 612. How to proceed in such case, 612. His share of real estate, allotted from undevised lands if any, 612. Otherwise, of devised land, 612. Of personal estate, allotted of intestate property, if any, 612. Otherwise, of property bequeathed, 612. All intestate property applied in exoneration of property devised or bequeathed, 612. Such child to be seized in fee, 612. Devisees and legatees entitled to contribution from each other, 612. After decree, petitioner deemed legatee and devisee, 613. If such child do not proceed in two years, executor to proceed, 613. Eights of such child, a lien on the whole estate, 613. Wills in office of secretary proved by copy, 274. To be deranged on widow's dissent as little as possible, 603. SteaUng, destroying, or concealing wills of living or deceased persons, misdemeanor, 208. WINES. Tax on dealers and retailers — see Jievenue, 510, 511. WITNESSES. Subpcenas for, issued by clerk; how to issue, 172. If returnable forthwith, must be issued in term and served personally, 172. When issued in vacation, served personally or by leaving a copy, 172. ^ After cause removed may issue from either court, 175. To attend till discharged, 172. Penalty for not attending: — in civil cases $40, in criminal S80, 172. During attendance, &o., exempt from service of civil process, 168, 175. Refusing to give evidence in court, to be imprisoned, 175. Execution not to issue against defaulting witness, till aftersc»./a., 173. Fees of witnesses, 175. To be paid for attending after suit settled in vacation, unless notified, 172. For attending a jury of view, commissioners, arbitrators, &c., 174. To prove attendance by oath at each term, 175. May recover pay from party summoning, 176. On final judgment tickets paid, filed and taxed as costs 176. Party cast, taxed with but two witnesses to prove same fact, 176. Subposna to attend commissioners, &c., in certain cases issued by clerk, 175. May be summoned to give their depositions, &c., 173. Sheriff to summon them on pain, &c., 174. Refusing to depose or be examined, committed to jail, 174. CommiUUitr to recite the authority and cause, &o., 174. Defaults of witnesses noted by commissioner, 174. If made before a commissioner .appointed out of the State, fined $50, 174. What shall be evidence of the default, 174. Default before commissioner in the State, certified to court, 174. Proceedings thereon, 174. Witness attending supreme court, under same rules as other witnesses, 198. In criminal cases not to attend till St.ate's day, 234. To be paid as in civil cases, 234. State witnesses, when paid by the county, 141. Subpcena duces tecum may issue, when, 177. Witnesses to deeds, &c., may be summoned to prove them, 247. Executor competent to prove a will, 608. Devisees and legatees attesting as witnesses, to take nothing, — may depose, 603. Party whose name is forged a competent witness, 232. Participator in unlawful games compelled to testify of the gaming, 236. Not to be prosecuted therefor after deposing, 236. Players and betters at unlawful games competent witnesses, 302. Their confessions not to be evidence ag.ainst them, 302. Voters compelled to testify how they voted, unless, &c., 310. Not to be indicted after deposing, 310. 728 INDEX. WITNESSES, ( Continued). Witnesses fuiliiig to depose in contested elections fined SIO, 310. Pay of witnesses in such cases, 310. Accomplice in fire hunting giving evidence, discharged, 221. Commissioners of navigation may issue subpoenas, 462. In trials before justice ho shall direct officer to summon witnesses, 303. Penalty for not attending, 365. After appeal from, justice may direct witnesses to be summoned, 366. How summoned before court-martial, 420. Oath of witness to depose before gr.and-jury, 443. sworn in a capital case, 443. in criminal cases, not capital, 443. in civil cases, 443. to prove a will, 443. Evidence of slaves and free persons of color, against whom allowed, 578. When witnesses to be warned to speak the truth, 578. WOMEN. What words spoken of women actionable, 563. Executnx, &c., may swear to inventory, &c., before justice, 293. Female guardians may swear to their returns, before justice, 324. Women not to be imprisoned for debt, 339. May render their tax list before any justice, 517. WOODS. See Burning WooJs, and Hunting. WORDS. Construction of. See Statutes; Repeal, tfc. WRECKS. Wreck districts in certain counties, how laid off, 614. Hyde county may lay off districts for itself, 615. Commissioners of wrecks appointed by county court; their bond and oath, 615. Shall reside in the district and not be pilot or officer under the United States, 615. Their duty when vessels are in danger, 615. Salvors to be paid, 615. Sum to be ascertained by referees, if parties cannot agree, 615. Superior court may examine award, 616. Commissioners to take charge of, sell, &c., wrecked property, 616. To render account of sales, 616. Their compensation, 616. Sales advertised; how long and where, 616. How to proceed when property is damaging, 616. Commissioner not to take salvage, 616. None to interfere with his rights, 616. When there is a wreck and no person claiming, whivt to be done, 617. Goods to be sold, and proceeds sent to county court, 617. If not claimed in one year, to belong to treasury, 617. Fmders of wrecked property to notify commissioner, 617. Penalty for concealing it, 617. Finders, concealing stranded goods, deemed guilty of larceny, 617. Stealers, embezzlers, and receivers of such goods, deemed guilty of larceny, 618. Penalty on commissioners for abuse of trust, 618. On persons refusing to aid in saving vessels or cargo, 618. Summons to aid, proved by commissioner, 618. Finders of wrecked property at sea, to deliver it to commissioner, 618. WRITS OF ERROR. In county or superior court, to be brought in five years, 75. Proviso for persons disabled, 75. Bills of review and writs of error in civil cases in supremo court, may bo brought in two years, 199. YEAR. S^e Statutes, Repeal ami Construction of ; Leap-Year. YEAR'S PROVLSION. Widow entitled to year's provision, and certain articles if on hand, 604. Proceedings to obtain the same — see Widows, 604. I t I