Library of The University of North Carolina THE CLARK COLLECTION PRESENTED AS A MEMORIAL OF GOVERNOR HENRY TOOLE CLARK By His Daughter MRS. JOHN L. BRIDGERS *S0035471907 This book must not b© taken from the Library building. mrrnsTo i« ¥ Digitized by the Internet Archive in 2011 with funding from Ensuring Democracy through Digital Access (NC-LSTA) http://www.archive.org/details/revisedstatuteso01nort THE REVISED STATUTES OF THE STATE OF NORTH CAROLINA, PASSED BY THE GENERAL ASSEMBLY AT THE SESSION OF 1S36— 7, INCLUDING AN ACT CONCERNING THE REVISED STATUTES AND OTHER PUBLIC ACTS, PASSED AT THE SAME SESSION ; TOGETHER WITH THE SECOND CHARTER GRANTED BY CHARLES THE 2d TO THE PROPRIETORS OF CAROLINA— THE GREAT DEED OF GRANT FROM THE LORDS PROPRIETORS— THE GRANT FROM GEORGE THE 2d TO JOHN LORD GRANVILLE— THE BILL OF RIGHTS AND CONSTITUTION OF THE STATE, WITH THE AMENDMENTS THERETO— THE CONSTITUTION OF THE UNITED STATES, WITH THE AMENDMENTS— THE TREATY OF PEACE OF n83-THE MECKLENBURG DECLARATION OF INDEPENDENCE, WITH A SHORT NARRATIVE THEREOF. Revised under an Act of the General Assembly, passed at the Session of 1833 — 4, by FREDERICK NASH, JAMES IREDELL AND WILLIAM H. BATTLE. PRINTED AND PUBLISHED, In pursuance of an Act of the General Assembly, passed at the Session of 1836—7, under the supervision and direc- tion of JAMES IREDELL AND WILLIAM H. BATTLE. IN TWO VOLUMES. VOLUME I. RALEIGH: PUBLISHED BY TURNER AND HUGHES 1837, i BOSTON TUTTLE, DENNETT & CHISHOLM PRINTERS 17 SCHOOL STREET. PMEFAC The revision and consolidation of the whole public statute law will consti- tute an important epoch in the legislative history of North Carolina. In pre- senting this work to the public the undersigned, commissioners for superin- tending its publication, have thought that some facts, connected with and illustrating that history, might be neither an inappropriate nor uninteresting 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 CaroHna was made about the year 1660, by emigrants from Virginia, on the north side of Albermarle sound, and probably on Durant's neck in Perquimons county, lying between Perquimons and Little rivers. The oldest land title is a conveyance 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 thirtyfirst and thirtysixth 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 thirtysix degrees thirty minutes and twentynine degrees north latitude. These grants will be found in the second volume of this work.* Among other powers which they con- ferred on the Lords Proprietors was that of enacting laws and constitutions for the people of that province by and loith the advice^ 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 * 2d Vol. p. 1. and 437. , VI PREFACE. , Virginia, in pursuance 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 au- thorized 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 reeled 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 dele- gates 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 instrument, since called the " Great Deed of Grant,"* di- rected 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 beheved to be required by the peculiar situation of the country, and were prompted by an anxious de- sire 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 council 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 Fundamental Constitutions of Carolina," and was the production of the celebrated John Locke. f Its provisions were so illy adapted to the situation of the country and to the habits, customs and feehngs 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 * See 2d Vol. p. 13. + 2d Vol. p. 449. PREFACE. Vll 1693. By one of its provisions the eldest Lord Proprietor was called Pala- tine, and the style of the enactments by the Grand, or as it was afterwards called the 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 northeast 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 pubhc offices of acts passed prior to the session of " a General Bien- nial Assembly, held at the house of Captain Richard Sanderson at Little River, begun the seventeenth day of November 1715 and continued, by several ad- journments, until the nineteenth day of January 1716." It seems that a revi- sal 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® confirmation 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 Govern- ment 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 hereafter mentioned to be continued, shall be of full force and shall be henceforward 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 to be 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 up- on 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 Vm PREFACE. 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 twentyfifth day of July, 1729, seven of the eight proprietors of Caro- lina, ia consideration of seventeen thousand five hundred pounds sterling, con- veyed 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 jurisdictiou 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 Eden- ton on the 27th 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 twentyninth April, 1730, the first royal governor. His council consisted 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 legisJature. Burrington having abdicated, Gabriel Johnston was appointed governor, the ablest of all the colonial governors, not less distinguished for his energy and prudence than for his extensive classical and scientific attainments. He con- tinued in office from 1734 till his death in 1752. During this period the style of enactment was as follows — " We pray that it maybe enacted and be it enacted by his Excellency Gabriel Jolinston, 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, pre- sided 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 PREFACE. IX 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 Nev^'bern 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 Honorable Enoch Hall, Esq., and Mr Thomas Barker, or the majority of them, be and they are hereby nominated and appointed com- missioners to revise and print the several acts of assembly in force in this province." Tiiey are required to " revise the said acts of assembly, and compile them into one body, and make an index, marginal notes and references thereto, arid to lay the same before the next succeeding General Assembly after they shall have so revised and compiled them, to be ratified and confirm- ed." 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 recom- mendations of Governor Johnston. Of the commissioners so appointed, 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 that "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 fortysix 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 re- vised 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 following title : " A Collection of all the public Acts of x\ssembly 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 examined with the records and confirmed in full Assembly. Newbern — Printed by James VOL. I. B X PREFACE. Davis : MDCCLII." Davis was the first public printer, erected the first print- ing press, and this was the first book printed, in North CaroHna. It is said by- Martin in his history that this act confirming 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 manu- script copies which were transmitted to the judges and clerks of the several courts, and directed to be read annually openly in each court. Another edi- tion of the public laws was pubUshed by James Davis at Newbern in 1765, dedicated to Governor 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 govern- ment, 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 dissolved by the governor. A meeting of deputies from the different counties had been held in August, 1774, and by adjournment reassembled in April, 1775. The dep- uties again met in convention in August, 1775, and appointed a provincial council consisting of Samuel Johnston, Cornelius Harnet, Samuel Ashe, Ab- ner Nash, James Coor, Thomas Jones, Whitmill Hill, William Jones, Thom- as Jones, Thomas Person, John Kinchen, Samuel Spencer and Waightstill Avery. The revolution was then in full progress. The Mecklenburg Decla- ration of Independence was signed on the twentieth day of May, 1775. Dep- uties had been sent to the continental congress in 1774 and 1775. The Dec- laration 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 direc- tion of the council of safety. " A congress of the representatives of the freemen of the State of North Carolina, assembled at Halifax the seventeenth day of December, in the year 1776, for the purpose of establishing a consti- tution or form of government for the said State." Besides adopting the con- stitution, this congress performed the functions of an ordinary legislature, its legislative acts, however, being generally limited to the end of the next Gen- eral Assembly. These acts were styled ordinances. Richard Caswell, a dis- tinguished patriot and soldier, was the president. Among others, an ordinance was passed directing " That Thomas Jones, Samuel Johnston, Archibald PREFACE. XI Maclaine, James Iredell, Abner Nash, Christopher Neale, Samuel Ashe, Waightstill Avery, Samuel Spencer, Jasper Charlton and John Penn, Es- quires, be appointed to revise and consider all such statutes and acts of assem- bly 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 situa- tion, and to lay the same before the next General Assembly for their appro- bation." 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 immedi- ately 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. 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 prac- tice 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 preventing of vexatious law suits, 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 " where- as doubts may arise upon the revolution in government 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 ter- ritory, 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 otherwise provided for, in the whole or in part, not abrogated, repealed, ex- pired or become obsolete, are hereby declared to be in full force in this State." Xll PREFACE. 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 di- rected, in revising and collecting said acts, to leave out all laws repealed or ob- solete, all private acts, and all other acts on which no question of property can arise : and further, the said commissioner 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 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 Revisal." 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 Parlia- ment of England in force in the State of North Carolina," of which work in 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 inserting many others, which never were, and never could have been in force, either in the Province or in the State of North Carolina. In the year 1794, also in pursuance of a resolution of the General Assembly of the preceding year, the same gentleman published " 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 of law, published " A Manual of the laws of North Caroli- na, 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 pubhcation 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 express- ly so, and cause his said revisal to be printed." This revisal was prepared > PREFACE. Xlll and published by Mr Martin, and approved by the succeeding legislature. At the session of the General Assembly in 1817, it was enacted, " That a com- mittee 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 pass- ed 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 Britian, which are in force within this State." The commis- sioners appointed were John Louis Taylor, chief 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 pub- lished, and was published in 1821, under the superintendence of Judge Potter, the acts of 1820 being included. This work has usually been called " the Revised Code," or the " New Revisal." In concluding this sketch, the undersigned will offer a brief notice of the revisal now published, which differs in its character from any hereto- fore executed. At the session of the General Assembly in 1833, it was enacted, " that three commissioners be appointed by the governor of the State to collate, digest and revise, all the public statute laws of this State, commencing with the earliest English statutes now in force, and including those which may be enacted during the present session of this General Assembly ; that in the performance of this duty they shall carefully collect and reduce into one act the different acts, and parts of acts, which, from similarity of subject ought, in their judgment, to be so arranged and con- sohdated, distributing the same under such titles, divisions and sections as they shall think proper, omitting all such acts, and parts of acts before passed as shall have either expired by their own limitation, become obsolete, or been repealed ; that in every other respect they shall complete the said revision in such manner as to them shall seem most useful and proper to render said acts more plain and easy to be understood ; and that, from time to time they shall lay before the legislature the acts so arranged and revised by them, to be re-enacted, if the legislature shall so determine." This act, though such a measure had long been desired by many intelligent citizens, owed its origin at this period, principally to the exertions of Governor Swain, who, in his annual message to the legislature had earnestly and eloquently urged its importance, and who manifested a deep solicitude for its success. XIV PREFACE. Soon after the passage of the act, the performance of the important duties which it required, was entrusted to the late Gavin Hogg, Esquire, of the city of Raleigh, in conjunction with the undersigned. At an early period after their appointment, the commissioners held a meeting, in which they made a curso- ry examination of the acts of assembly, and the British statutes in force in this State, and agreed upon the plan upon which the revisal should be conduct- ed. With these preliminary arrangements, Mr Hogg's connection with the work ceased. Severe and protracted ill health prevented his further discharge of duties, upon the performance of which he had entered with zeal, and which no one was better qualified to perform in a manner creditable to himself and useful to the public. In the winter following, he resigned his commission, and the Hon. Frederic Nash, of Hillsborough, now one of the judges of the supe- rior courts of this State, but then at the bar, was appointed to supply the va- cancy. Reports of the plan and progress of the work were made by the com- missioners to the governor, and through him to the legislature at its respective sessions in 1834 and 1835. The plan adopted by the commissioners was, in the language of one of their reports, " 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 as regarded the British statutes, " to incorporate them in acts distributed according to the subject to which they relate, clothing them in a modern garb." Upon the re- port made at the session of 1834 no definite action was taken by the legisla- ture, but that submitted at the subsequent session, was referred, together with several revised acts which had accompanied it, to a joint select committee of both houses, who, after having had the subject under consideration, reported that they deemed it inexpedient for the legislature at that session, " to attempt the re-enactment of any portion of the digest which had been completed." They, then, after expressing themselves " from a cursory examination, high- ly gratified both with the plan of the digest, which had been adopted, and the mode of its execution," recommended that the time for completing the revisal, which in the original act had been limited to two years, should be extended to the first day of December, 1836 ; that the revised acts which had been sub- mitted by the commissioners should be returned to them, and that when they should have completed the residue, they should procure two hundred copies of the whole to be printed, and have them deposited in the governor's office for tbe use of the next General Assembly. A bill for that purpose was accord- ingly introduced, and passed, and at the session of 1836, the whole work was PREFACE. XV reported to the legislature, and with the report were transmitted the required ^ number of printed copies of each of the revised acts for the use of the mem- "^bers. These acts, with the accompanying report, were referred to a joint se- lect committee of six members from each house, by whom they were examin- ed and reported from time to time, to one or the other of the houses, with such amendments as the committee thought proper to suggest, and were then passed separately, according to the forms usual in passing bills, except that they were not required to be engrossed after passing one house before they were sent to the other. After the revised statutes had been all acted upon by the legislature, an act entitled " An act concerning the Revised Statutes" was passed, which prescribes the time when they shall go into operation, provides for their pub- lication and distribution, repeals all the British acts, and all the acts of our own legislature, the subjects of which had been revised, and directs that when pub- lished, the printed copies shall be received as evidence of the law. From this it will be perceived that the work now presented to the public has the very highest character of authenticity and authority. It remains only for the undersigned to add a few remarks as to the manner in which their duties as superintendents of publication have been discharged. By reference to the ninth and tenth sections of the "Act concerning the Revised Statutes," will be seen the authority under which they were appointed, and the particular duties prescribed them. They have endeavored to comply strictly with the requisitions of that act. How far they have succeeded, it must be for others to determine. As regards the style of execution, and arrangement of the work, it will show for itself. The "Act concerning the Revised Statutes " has been placed as chapter first of the statutes contained in the first volume, and the revised acts themselves follow in alphabetical order. The other pub- lic acts, which were passed at the same session, and required to be inserted in the same volume with the revised statutes, have been either incorporated with them or published as separate chapters under the same general title where similarity of subject admitted, or have been placed under distinct heads but still in their proper alphabetical order. In annexing the references to the de- cisions of the supreme court, it was intended to place the cases refeiTed to, in the margin opposite to the sections to which they related, but it was found that it could not be done without too much encumbering the page, and the re- ferences were therefore placed at the end of the respective chapters, but still noting the particular sections which they are designed to elucidate. In preparing the materials directed to be published in the second volume, the superintendents found some difficulty in ascertaining and determining what acts XVI PREFACE. relating to navigation companies were now " in force and use " so as to require their insertion. They were aware that there were several charters of those companies still in legal existence, but they had reasons to believe that the companies were so near a final extinction from nonuser or abandonment, that it was entirely useless to retain them. As they found that this volume when going to press would not be so large as they anticipated, tlie superintendents have ventured to insert in an appendix several articles which were deemed not inappropriate to such a work. These articles, comprising among others the great charters of English and American liberty, not already inserted, will, it is hoped, be found neither uninteresting nor uninstructive ; and as those of them, . which are not entirely new, are not often seen in works easily accessible to the public, it is trusted, that their appearance in their present position will be favorably received. In the progress of these volumes through the press, one or the other of the superintendents has constantly attended to them, and every sheet has undergone his supervision and correction. With what accuracy this part of their duty has been performed, it is not for them to say. They have anxiously endeavored to have the typographical part of the work perfect, so far as their exertions could contribute towards so desirable an object. But yet from the great de- sire to have the volumes ready for distribution at as early a day as possible, their publication has been hastened in a manner inconsistent with entire cor- rectness. It is hoped and believed however, that no error will be found, par- ticularly in the body of the work, at all affecting the sense of the passage in which it may occur. It may be proper to mention here that the revised and other public acts contained in the first volume of this work, were regularly rat- ified in the usual form and signed by Messrs Hugh Waddell, speaker of the senate, and WiUiam H. Haywood, Jun., speaker of the house of commons, but the certificate of ratification has not been retained, because as the acts were passed separately, it would have presented a useless repetition. With these explanations and remarks the " Revised Statutes " are submitted to a generous pubhc, with the hope, that with the corrections and amendments which they received from the legislature and the sanction given to them by that body, they will contribute in some degree at least, to the object for which they were designed, a simplification of the Statute Law and an extension of its knowledge among the people. JAMES IREDELL. WILL : H. BATTLE. TABLE OF CONTENTS. Mecklenburg Declaration of Independence, ... 1 Names of Delegates to State Congress in 1776, - - - 5 Bill of Rights and State Constitution, with the Amendments, - 7 Constitution of the United States, with the Abiendments, - - 28 49 - 55 58 - 60 67 - 70 79 - 80 82 " 86 89 - 89 92 - 96 97 - 99 - 100 - 102 103 - 107 109 - 110 111 - 114 116 - 118 122 - 122 Chapter 1. Revised Statutes, . 2. Abatement, - - - - 3. Amendment, ... 4. Appeals, - 5. Apprentices, ... 6. Attachment, - 7. Attorney General and Solicitors, 8. Attorneys at Law, - 9. Auctions and Auctioneers, 10. Bail in Civil Cases, - 11. Bank Notes, 12. Bastard Children, *B 13. Bills, Bonds and Promissory Notes, 14. Boats and Canoes, - - 15. Book Debts, ... 16. Burning Woods, - 17. Cattle, Horses and Hogs, 18. Charities, - . - - 19. Clerks of the County and Superior Courts 20. Clerks and Masters in Equity, - 21. Commissioners of Affidavits, 22. Common Law, - 23. Comptroller, ... 24. Constables, ... - 25. Coroners, ... 26. Corporations, - 27. County Boundaries, 28. County Revenue and Charges, - VOL. I. c XV 111 CONTENTS. Chapter 29. County Trustees, - " - 129 30. Court Houses, Prisons and Stocks, - - - - 132 31. Courts, County and Superior, .... 135 '32. Courts of Equity, . - . - - - 175 33. Court, Supreme, - - - 184 34. Crimes and Punishments, - 189 35. Criminal Proceedings, . . - - - 214 36. Currency, - - - - 222 37. Deeds and Conveyances, .... 223 38. Descents, ------ - 236 39. Divorce and Alimony, - - - - - 238 40. Draining Low Lands, . . - . - 242 41. Electors of President and Vice President, 244 42. Entries and Grants, - - - 248 43. Estates, ------- 257 44. Evidence, ------ - 262 45. Executions, -..--- 264 46. Executors and Administrators, - - - - 271 47. Fairs, .-.---- 282 48. Fences, ------ - 283 49. Forcible Entry and Detainer, . - - - 285 50. Frauds and Fraudulent Conveyances, - 287 51. Gaming Contracts, . _ . - - 291 52. General Assembly, - - - - - - 292 53. Governor and Council, - - - - - 302 54. Guardian and Ward, - - - 305 55. Habeas Corpus, ------ 314 56. Hunting, - - - - - - - 317 57. Idiots and Lunatics, - - - - - 318 58. Insolvent Debtors, - - - - - - 320 59. Inspections, .-.--- 329 60. Internal Improvements, . . - - - 346 61. Do. do. - - - - - 349 62. Justices of the Peace, .... - 352 63. Lands of Deceased Debtors, . . - - 362 64. Legacies, Filial Portions and Distributive Shares, - 368 65. Limitations, - - - - 371 66. Literary Fund, - . . - . - 378 67. Do. do. (Draining Swamp Lands,) 379 68. Do. do. ( Do. Mattamuskeet Lake,) - 382 69. Do. do. - - - - - - 383 70. Mad Dogs, ------ - 385 71. Marriage, - - - - 385 72. Members of Congress, - ■ - - 388 73. Militia, ------- 392 CONTENTS. XIX Chapter 74. Mills and Millers, - - - - - - 420 75. Mines, ----- - - 425 76. Money remaining in the hands of Clerks and Sheriffs, - 426 77. Names, - - - - - - - 429 78. Notaries, - - - - - - - 429 79. Oaths, ------- 430 80. Offices, - - - - - - - 441 81. Official Bonds, - 442 82. Ordinaries, ------- 445 83. Overseers, -.--.. 447 84. Oysters, - - - - - - - 448 85. Partition, ------ 449 86. Patrol, - - - - - - - 458 87. Pensions, - - - - - - 459 88. Pilots, 460 89. Poor, .--..-. 471 90. Prisoners, ------- 477 91. Processioning, ------ 482 92. Public Arms, - - - - - - 484 93. Do. do. ----- - 487 94. Public Documents, - - - - - - 489 95. Public Printing, ------ 489 96. Quarantine and Health, - - - - - 492 97. Quo Warranto and Mandamus, - - - - 498 98. Eegisters, - - - - - - - 500 99. Religious Societies and Congregations, - - - 503 100. Repeal of Statutes, - - - - - - 506 101. Replevin, ------ 506 102. Revenue, - - - - - - - 508 103. Rivers and Creeks, - - - - - 533 104. Roads, Ferries and Bridges, - - - - 536 105. Salaries and Fees, - - - - - 548 106. Seamen, - - - - - - - 560 107. Seat of Government, ----.. 562 108. Secretary of State, ------ 563 109. Sheriffs, ------- 564 110. Slander of Women, - - - - - - 570- 111. Slaves and Free Persons of Color, - - - 571 112. Strays, - - - - - - - 593 113. Surety and Principal, ----- 597 114. Towns, - - - - - - - 599 115. Treasurer, ------ 600 116. University, ------- 605 117. Usury, ------- 606 118. Vice and Immorality, ----- 607 XX CONTENTS. ^■«^ Chapter 119. Waste, - - - ™ 120. Weights and Measures, 121. Widows, 122. Wills and Testaments, 123. Wrecks, •Index, - ... - t 609 - - 610 - 612 - - 619 • 626 _ - 631 MECKIiENBtJRCi DECLARATION OF INDEPENDENCE, ADOPTED ON THE TWENTIETH OP MAY, 1775. SHORT NARRATIYE. In the spring of 1775, the leading characters of Mecklenburg county, North Carolina, stimulated by that enthusiastic patriotism which elevates the mind above considerations of individual ag- grandizement, and scorning to shelter themselves from the impend- ing storm by submission to lawless power, &c. &c. 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 connected with those of their East- ern fellow-citizens — and that they must either submit to all the im- positions which an unprincipled, and to them an unrepresented, parliament might impose — or support their brethren who were doomed to sustain the first shock of that power, which, if suc- cessful 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 persons, 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 inalienable 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 w'th unlimited powers ; at which time official news, by express, arrived of the battle of Lexington on that day of the preceding month. Every delegate felt the value and importance of the prize, and the awful and solemn VOL. I. 1 MECKLENBURG DECLARATION OF INDEPENDENCE; crisis which had arrived — every bosom swelled with indignation at the malice, inveteracy, and insatiable revenge, developed in the late attack at Lexington. The universal sentiment was : let us not flatter ourselves that popular harangues, or resolves, that popular vapour 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 endear- ing, 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 cA'^ery paragraph, they were all passed, sanctioned, and decreed, unanimously., about 2 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 congress at Philadelphia, with a copy of said resolves and proceedings, together with a letter addressed to our three representatives there, viz. Richard Caswell, William Hooper, and Joseph Hewes — under express injunction, per- sonally, 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 con- gress 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 regula- tions, and the continued exertion of said delegation, apparently tranquiUized this section of the State, and met with the concurrence and high approbation of the council of safety, who held their sessions at Newborn and Wilmington, alternately, and who con- firmed 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 Charlotte — they then held their meetings regularly at Charlotte, at Col. James Harris's, and at Col. Phifer's, alternately, one week at each place. MECKLENBURG DECLARATION OF INDEPENDENCE. It was a civil court founded on military process. Before this judicature, all suspicious persons were made to appear, who were formally tried and banished, or continued under guard. Its juris- diction was as unlimited as toryism, and its decrees as final as the confidence and patriotism of the county. Several were arrested and brought before them from Lincoln, Rowan and the adjacent counties. DECLARATIOIY. NAMES OF THE DELEGATES PRESENT. COL. THOMAS POLK, EPHRAIM BREVARD, HEZEKIAH J. BALCH, JOHN PHIFER, JAMES. HARRIS, WILLIAM KENNON, JOHN FORD, RICHARD BARRY, HENRY DOWNS, EZRA ALEXANDER, WILLIAM GRAHAM, JOHN aUEARY, ABRAHAM ALEXANDER, JOHN M'KNITT ALEXANDER, HEZEKIAH ALEXANDER, ADAM ALEXANDER, CHARLES ALEXANDER, ZAOHEUS WILSON, Sen. WAIGHTSTIL AVERY, BENJAMIN PATTON, MATTHEW M'CLURE, NEIL MORRISON, ROBERT IRWIN, JOHN FLENNIKEN, DAVID KEESE, RICHARD HARRIS, Sen. Abraham Alexander was appointed chairman, and John M'Knitt Alexander, clerk. The following resolutions were offered, viz. 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 in- alienable rights of man. 2. Resolved, That we, the citizens of Mecklenburg county, do hereby dissolve the poUtical bands which have connected us to the mother country, and hereby absolve ourselves from all allegi- ance to the British crown, and abjure all political connection, con- tract, or association, with that nation, who have 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 and 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 co-operation, our fives, our fortunes, and our most sacred honor. MECKLENBURG DECLARATION OF INDEPENDENCE. 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 holding rights, privi- leges, 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 for- mer command and authority, he acting conformably to these regu- lations. And that every member present, of this delegation, shall henceforth be a civil officer, viz. a justice of the peace, in the character of a " committee-man,^^ to issue process, hear and deter- mine all matters of controversy, according 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 free- dom 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 committee of public safety, who were selected from these delegates, the whole proceedings were unanimously adopted and signed. A select committee was then appointed to draw a more full and defi- nite statement of grievances, and a more formal declaration of indepenjjence. The delegation then adjourned about 2 o'clockj A. M,, May 20, NAMES OF DELEGATES TO THE 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 mark- ed 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. Anson County. THOMAS WADE, DAVID LOVE, WM. PIGKET.t Beaufort County. JOHN BAUROW.t TttOS. KESPESS, THOS. RESPESS.Jun. FRANCIS JONES, ROBERT TRJPP. Bertie County. WM. GRAY, NOAH H IN TON, 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 County. 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. HEN BURY, THOS. JONES, LUKE SUMNER, JACOB HUNTER. ■ Chatham County. AMBROSE RAMSEY, JNO. BIHDSONG, MIAL SCUllLOCK, JOSIAH HOGAN. Craven County. WM BRYAN, JNO. BRYAN, CHRISTOPHER NEALL, JNO. TILGHiVlAN. Cumberland County. ROBERT ROWAN, PHILIP ALSTON.t WM. RAND, ROBERT COBB. Currituck County. SAMUEL JARVIS,* JAS. WHITE, KEDAR MERCHANT, HOLLOWEI.L WILLIAMS, THOS. WILLIAMS. DoBBs County. RICHARD CASWELL, SIMON BRIGHT. ABRAHAM SHEPPARD, BENJAMIN EXUM, ANDREW BASS. NAMES OF DELEGATES. Duplin County. JAS. KENAN, THOMAS GRAY.t WM. DICKSON,' WM. TAYLOR, JAMES GILLESPIE, Edgcombe County, WM. HAYWOOD, ELISHA BATTLE, JONAS JOHNSTON, ISAAC SESSUJMS, WM. HORN. Geanville County. THOS. PERSON, ROBERT LEWIS, MEMUCAN HUNT, JOHN OLIVER. Guilford County. DAVID CALDWELL, JOSEPH HINES, CHARLES BRUCE, RALPH GORRELL, ISHAM BROWDER. Halifax County. JOHN BRADFORD, JAME.S HOGAN,* EGBERT HAYWOOD, WILLIS ALSTON, SAMUEL WELDON, BENJAMIN M'CULLOCH. Hartford County. LA WHENCE BAKER t WM. MURFREE, ROBEKT SUMNER, DAY RIDLEY, JAMES WRIGHT. Hyde County. JOSEPH HANCOCK, JOHN JORDAN, BENJAMIN PARMERLE, AMBROSE JONES. Johnston County. NEED'M Bf{YAN, JuQ. JOHN STEVENS, HENRY RAINS, ALEXANDER AVERYT. Martin County. WM. WILLIAMS, THOS. HUN TER, JNO HARDISON, SAMUEL SMITH WICK. Mecklenburg County. ROBERT IKWIN, ZACHEUS WILSON, HEZEKIAH ALEXANDER.t WAIGHTSTIL AVERY. New-Hanover County. JOHN ASHE, SAMUEL ASHE, JOHN DEVANE, SAiVlPSON MO.SELEY, JOHN HOLLINGSWORTH. Northampton County. ALLEN JONES, JA IVIES 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 Perciuimons County. BENJAMIN HARVEY, MILES HARVEY, THOMAS HARVEY, WM. SKINNER. Pitt County. BENJAMIN MAY, WM. ROBSON, JAMES GORHAM, GEORGE EVANS,* EDWARD SALTER. Rowan County. MATTHEW LOCK, GRIFFITH RUTHERFORD, WM. SHARPE, JAMES SMITH, JOHN BREVARD. Surry County. ROBERT LANIER, WM. HALL, CHARLES GORDON, JOSEPH WILLIAMS. Tryon County. JOSEPH HARDEN, ROBERT ABERNATHY, WM. GRAHAM, WM. ALSTON, JOHN BARBER.t Tyrrell County. PETER WYNN.t JERE. FRAZIER, ISHAM WEBB, BENJ. BLOUNT. Wake County. TIGNAL JONES, JAMES JONES, MICHAEL ROGERS, JOHN RICE, BRITAIN FULLER, t Washington f CHAS. ROBESON, District, J JOHN CARTER, Watauga, 1 JOHN HAILE, seltlement, [JOHN SEVIER. Towns of Bath, Brunswick Campbelton, Edenton, Halifax, Newbehn, Salisbury, WM. BROWN, PARKER aUINCE, THOMAS HADLEY, JOSEPH HEWES, WILLIE JONES, ABNER NASH, DAVID NESBIT. THE DECLiARATION OF RIGHTS. Jl Declaration of Rights made by the Representatives of the Freemen of the State of Jforth Carolina. Sect. 1. That all political power is vested in and derived from the people only. Sect. 2. That the people of this State ought to have the sole and exclusive right of regulating the internal government and police thereof. ^ECT. 3. That no man or set of men are entitled to exclusive -oil^k)arate emoluments or privileges from the community, but in con^Reration of pubhc services. Sect. 4. That the legislative, executive, and supreme ju- dicial powers of government, ought to be forever separate and distinct from each other. Sect. 5. That all power of suspending laws, or the execution of laws, by any authority, without consent of the representatives of the people, is injurious to their rights, and ought not to be exercised. Sect. 6. That elections of members to serve as represen- tatives in General Assembly, ought to be free. Sect. 7. That in all criminal prosecutions, every man has a right to be informed of the accusation against him, and' to confront the accusers and witnesses with other testimony, and shall not be compelled to give evidence against himself. Sect. 8. That no freeman shall be put to answer any criminal charge, but by indictment, presentment, or impeachment. Sect. 9. That no freeman shall be convicted of any crime, but by the unanimous verdict of a jury, of good and lawful men, in open court, as heretofore used. Sect. 10. That excessive bail should not be required, nor excessive fines imposed, nor cruel nor unusual punishments in- flicted. 8 DECLARATION OF RIGHTS. Sect. 11. That general warrants, whereby any officer or messenger may be commanded to search suspected places, with- out 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 or disseized, of his freehold, liberties, or privileges, or outlawed or exiled, or in any manner destroyed or deprived of his life, liberty or property, but by the law of the land. Sect. 13. That every freeman restrained of his liberty, is 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 pro- perty, the ancient mode of trial by jury is one of the best secu- rities 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 bulwarks of liberty, and, therefore, ought never to be restrained. Sect. 16. That the people of this State ought not to be taxed or made subject to the payment of any impost or duty 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 defence of the State ; and, as standing armies in time of peace, are dangerous to liberty, they ought not to be kept up ; and that the military should be kept under strict subordination to, and governed by, the civil power. Sect. 18. That the people have a right to assemble together, to consult for their common good, to instruct their representatives, and to apply to the legislature, for redress of grievances. Sect. 19. That all men have a natural and unahenable right to worship Almighty God according to the dictates of their own con- sciences. Sect. 20. That for redress of grievances, and for amend- ing and strengthening the laws, elections ought to be often held. Sect. 21. That a frequent recurrence to fundamental principles is absolutely necessary to preserve the blessings of liberty. Sect. 22. That no hereditary emoluments, privileges or honors, ought to be granted or conferred in this State. DECLARATION OF RIGHTS. Sect. 23. That perpetuities and monopolies are contrary to the genius of a free State, and ought not to be allowed. Sect. 24. That retrospective laws, punishing facts committed 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. Sect. 25. The property of the soil in a free government, being one of the essential rights of the collective body of the peo- ple, 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 legis- latures of the two States, agreeable to the order of the late King George the Second, in council, that hne, 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 Bruns- wick county and running from thence, a north-west course through the boundary house, which stands in thirtythree degrees fiftysix minutes, to thirtyfive 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. There- fore, all the territories, seas, water and harbors, with their ap- purtenances, lying between the line above described, and the southern line of the State of Virginia, wliich begins on the sea shore in thirtysix degrees thirty minutes north latitude, and from thence runs west, agreeable to said charter of King Charles, are the right and property of the people of this State, to be held by them in sovereignty, any partial line without the consent of the legislature of this State, at any time thereafter directed or laid out, in any wise notwithstanding. Provided always. That this declara- tion of right shall not 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 legis- lature of this State. And provided also, That it shall not be con- strued so as to prevent the establishment of one or more govern- ments 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, under the laws heretofore in force, or grants heretofore made by the late VOL. I. 2 9 i 10 DECLARATION OF RIGHTS. King George the Third, or his predecessors, or the late lords pro- prietors or any of them. December the seventeenth day, Anno Dom. one") ctixt't t n thousand seven hundred and seve-uysix, read > K,. CASWJliLL, PtCS. the third time and ratified in - ^li congress. 3 James Green, Jvi.., Secretary, s THE CONSTITUTION OF NORTH CAROLINA. The ConstitiUion or Form of Government, agreed to and resolved upon by the Representatives of the Freemen of the State of JYorth Carolina, elected and chosen for that particular purpose, in Congress assembled, at Halifax, thfi eighteenth day of De- cember, in the year of our Lord, one thousand seven hundred and seventysix. Whereas allegiance and protection are in their nature re- ciprocal, and the one should of right be refused when the other is withdrawn. And whereas George the Third, King of Great Bri- tain, and late sovereign of the British American colonies hath not only withdrawn from them his protection, but by an act of the British legislature declared the inhabitants of these 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 mention- ed 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 premises, and other previous violations of the rights of the good people of America, have therefore declared that the Thirteen Uni- ted Colonies are, of right, wholly absolved from all allegiance to the British crown, or any other foreign jurisdiction whatsoever, and that the said colonies now are and forever shall be, free and independent States : Wherefore, in our present state, in order to prevent anarchy and confusion, it becomes necessary that a gov- ernment should be established in this State : Therefore, We, the 12 STATE CONSTITUTION. representatives of the freemen of North Carohna, chosen and assembled in congress for the express purpose of framing a con- stitution, under the authority 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 distinct branches, both dependent on the people, to wit : a senate and house of commons. Sect. 2. That the senate shall be composed of representa- tives annually chosen by ballot, one from each county in this State.* Sect. 3. That the house of commons shall be composed of representatives annually chosen by ballot, two for each county, and one for each of the towns of Edenton-, Jfewbern, Wilming- ton, Salisbury, Hillsborough and Halifax. Sect. 4. That the senate and house of commons, assembled for the purpose of legislation, shall be denominated the General Assembly. Sect. 5. That each member of the senate shall have usually resided in the county in 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 county which he repre- sents, not less than three hundred acres of land in fee. Sect, 6. That each member of the house of commons shall have usually resided in the county in which he is chosen, for one year immediately preceding his 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 twentyone years, 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. Sect. 8. That all freemen of the age of twentyone years, who have been inhabitants of any county within 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. * Those sections of the constitution in which material amendments have been made ai-e printed in italics. STATE CONSTITUTION. Sect. 9. That all persons possessed of a freehold in any toivn in this State, having a right of representation, and also all free- men who have been inhabitants of any such town tivelve months next before and at the day of election, and shall have paid public taxes, shall be entitled to vote for a member to represent such toion in the house of commons. Provided always. That this section shall not entitle any inhabitant of such toxon to vote for members of the house of commons for the county in which he may reside, nor any freeholder in such county, who resides without or beyond the limits of such toicn, to vote for a member for said town. Sect. 10. That the senate and house of commons when met, shall each have power to choose a speaker and other their officers, be judges of the qualifications and elections of their members, sit upon their own adjournments from day to day, and prepare bills to be passed into laws. The two houses shall direct writs of elections for supplying intermediate vacancies, and shall also jointly, by ballot, adjourn themselves to any future day and place. Sect. 11. That all bills shall be read three times in each house before they pass into laws, and be signed by the speaker of both houses. Sect. 12. That every person who shall be chosen a member of the senate or house of commons, or appointed to any office or place of trust, before taking his seat or entering upon the ex- ecution of his office, shall take an oath to the State ; and all officers shall also take an oath of office. Sect. 13. That the General Assembly shall, by joint ballot of both houses, appoint judges of the supreme courts of law and equity, judges of admiralty, and attorney general, who shall be commissioned by the governor, and hold their offices during good behavior. Sect. 14. That the senate and house of commons shall have power to appoint the generals and field officers of the militia, and all officers of the regular army of this State. Sect. 15. That the senate and house of commons jointly, at their first meeting after each annual election, shall by ballot elect a governor for one year, who shall not be eligible to that office longer than three years in six successive years : That no person under thirty years of age, and who has not been a resident in this State above five years, and having in the State a freehold 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, 13 14 STATE CONSTITUTION. at their first meeting after each annual election, shall by ballot 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 proceedings shall be entered in a journal to be kept for that purpose only, and signed by the members present ; to any 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 shall be kept by the governor, and used by him as occasion may require, and shall be called the great seal of the State of North Carohna, and be affixed to all grants and commissions. Sect. 18. That the governor for the time being, shall be captain-general and commander-in-chief of the militia ; and in the recess of the General Assembly, shall have power, by and with the advice of the council of slate, to embody the militia for the public safety. Sect. 19. That the governor for the time being, shall have power to draw for and apply such sums of money as shall be voted by the General Assembly for the contingencies of government, and be accountable to them for the same ; he also may, by and with the advice of the council of state, lay embargoes, or pro- hibit the exportation of any commodity, for any term not exceed- ing thirty days at any one time, in the recess of the General As- sembly, 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 constitu- tion is mentioned, and according to the laws of the State ; and on his death, inability, or absence from the State, the speaker of the senate for the time being, and in case of his death, inability, or absence 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 until a new nomination is made by the General Jlssemhly. Sect. 20. That in every case where any officer, the right of whose appointment is, by this constitution, vested in the General Assembly, shall, during their recess, die, or his office by other means become vacant, the governor shall have power, with the advice of the council of state, to fill up such vacancy by granting STATE CONSTITUTION. a temporary commission, which shall expire at the end of the next session of the General Assembly. Sect. 21. That the governor, judges of the supreme courts of law and equity, judges of admiralty and attorney general, shall have adequate salaries during their continuance in office. Sect. 22. That the General Assembly shall, by joint ballot of both houses, annually appoint a treasurer or treasurers for this State. Sect. 23. That the governor and other officers offending against the State, by violating any part of this constitution, mal- administration or corruption, may be prosecuted on the impeach- ment of the General Assembly, or presentment of the grand jury of any court of supreme jurisdiction in this State. Sect. 24. That the General Assembly shall, by joint ballot of both houses, triennially appoint a secretary for this State. Sect. 25. That no persons who heretofore have been or here- after may be, receivers of the pubhc moneys, shall have a seat in either house of General Assembly, or be ehgible to any office in this State, until such person shall have fully accounted for and paid into the treasury, all sums for which they may be accountable and liable. Sect. 26. That no treasurer shall have a seat in either the sen- ate, house of commons, or council of state, during his continuance in that office, or before he shall have finally settled his accounts with the pubhc, for all moneys which may be in his hands, at the expiration of his office, belonging to the State, and hath paid the same into the hands of the succeeding treasurer. Sect. 27. That no officer in the regular army or navy, in the service and pay of the United States, of this or any other State, or any contractor or agent for supplying such army or navy with clothing or provisions, shall have a seat in either the senate, house of commons, or council of state, or be ehgible thereto ; and any member of the senate, house of commons, or council of state, being appointed to and accepting of such office, shall thereby vacate his seat. Sect. 28. That no member of the council of state shall have a seat either in the senate or house of commons. Sect. 29. That no judge of the supreme court of law or equity, or judge of admiralty, shall have a seat in the senate, house of commons, or council of state. Sect. 30. That no secretary of this State, attorney general or clerk of any court of record, shall have a seat in the senate, house of commons, or council of state. 15 STATE CONSTITUTION. Sect. 31. That no clergyman, or preacher of the gospel, of any denomination, shall be capable of being a member of either the senate, house of commons, or council of state, while he continues in the exercise of the pastoral function. Sect. 32. That no person who shall deny the being of God, or the truth of the protestant rehgion, or the divine authority either of the Old or New Testament, or who shall hold religious princi- ples, incompatible with the freedom and safety of the State, shall be capable of holding any office or place of trust or profit in the civil department, within this State. Sect. 33. That the justices of the peace, within the re- spective counties in this State, shall in future be recommended to the governor for the time being by the representatives in General Assembly, and the governor shall commission them ac- cordingly : 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 misbehavior, absence, or inability. Sect. 34. That there shall be no estabhshment of any one relig- ious church or denomination in this State in preference to any other; neither shall any person, on any pretence whatsoever, be compelled to attend any place of worship, contrary to his own faith or judgment ; nor be obhged to pay for the purchase of any glebe, or the build- ing of any house of worship, or for the maintenance of any min- ister or ministry, contrary to what he believes right, or has vol- untarily and personally engaged to perform ; but all persons shall be at liberty to exercise their own mode of worship : Provided, that nothing herein contained shall be construed to exempt preachers of treasonable or seditious discourses from legal trial and punish- ment. Sect. 35. That no person in the State shall hold more than one lucrative office at any one time. Provided, That no appoint- ment in the militia or to the office of a justice of the peace, shall be considered as a lucrative office. Sect. 36. That all commissions and grants shall run in the name of the State of North Carolina, and bear test and be signed by the governor. All writs shall run in the same manner, and bear test and be signed by the clerks of the respective courts ; indictments shall conclude, against the peace and dignity of the State. Sect. 37. That the delegates for this State to the continental congress, while necessary, shall be chosen annually by the Gen- eral Assembly, by ballot, but may be superseded in the mean time, STATE CONSTITUTION. in the same manner : and no person shall be elected to serve in that capacity for more than three years successively. Sect. 38. That there shall be a sheriff, coroner or coro- ners, and constables, in each county within this State. Sect. 39. That the person of a debtor, where there is not a strong presumption of fraud, shall not be continued in prison after delivering up, bona jide, all his estate, real and personal, for the use of his creditors, in such manner as shall be hereafter regulated by law. All prisoners shall be bailable by sufficient sureties, un- less for capital offences, when the proof is evident, or presump- tion great. Sect. 40. That every foreigner, who comes to settle in this State, having first taken an oath of allegiance to the same, may purchase, or by other just means acquire, hold and transfer land or other real estate ; and after one year's residence, shall be deemed a free citizen. Sect. 41. That a school or schools shall be established by the legislature for the convenient instruction of youth, with such- salaries to the masters, paid by the public, as may enable them to instruct at low prices ; and all useful learning shall be duly en- couraged and promoted in one or more universities. Sect. 42. That no purchase of lands shall be made of the In- dian natives, but on behalf of the public, by authority of the Gen- eral Assembly. Sect. 43. That the future legislature of this State shall reg- ulate entails in such a manner as to prevent perpetuities. Sect. 44. That the declaration of rights is hereby declared to be part of the constitution of this State, and ought never to be violated on any pretence whatever. Sect. 45. That any member of either house of the General Assembly shall have hberty to dissent from, and protest against any act or resolve which he may think injurious to the pubhc or any individual, and have the reasons of his dissent entered on the journals. Sect. 46. That neither house of the General Assembly shall proceed upon public business, unless a majority of all the members of such house are actually present ; and that upon a motion made and seconded, the yeas and nays upon any question shall be taken and entered on the journals ; and that the journals of the pro- ceedings of both houses of the General Assembly, shall be printed and made public, immediately after their adjournment. This constitution is not intended to preclude the present con- gress from making a temporary provision for the well ordering of VOL. I. 3 17 18 STATE CONSTITUTION. this State, until the General Assembly shall estabhsh government agreeable to the mode herein before prescribed. December the eighteenth, one thousand seven ^ hundred and seventysis, read the third time > R. CASWELL, President. and ratified in open congress. ) James Green, Jun., Secretary. Amendments proposed by a Convention of Delegates of the People of JYorth Carolina on the eleventh of July, 1835, and ratified by the People on the second Monday of JYovember, in the same year. Whereas the General Assembly of North Carohna, by an act, passed the sixth day of January, one thousand eight hundred and thirtyfive, entitled " An act concerning a convention to amend the constitution of the State," and by an act, supplemental thereto, passed on the eighth day of January, one thousand eight hundred and thirtyfive, did direct that polls should be opened in every election precinct throughout the State, for the purpose of ascer- taining whether it was the will of the freemen of North Carolina that there should be a convention of delegates, to consider of certain amendments proposed 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 thirtyfive, to consider of the said amendments : And whereas a majority 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 con- sider of the amendments proposed, and the governor did, by proclamation, announce the fact that their will had been so de- clared, and an election for delegates to meet in convention as aforesaid was accordingly had : Now, therefore, we, the delegates of the good people of North Carolina, having assembled in con- - vention, at the city of Raleigh, on the first Thursday in June, one thousand eight hundred and thirtyfive, and having contin- ued in session from day to day, until the eleventh of July, one thousand eight hundred and thirtyfive, for the more deliberate con- sideration of said amendments, do now submit to the determination STATE CONSTITUTION. of all the qualified voters of the State, the following amendments in the constitution thereof, that is to say : ARTICLE I. SECTION I. 1. The senate of this State shall consist of fifty represen- tatives, biennially chosen by ballot, and to be elected by dis- tricts ; which districts shall be laid off by the General Assembly, at its first session after the year one thousand eight hundred and fortyone ; and afterwai'ds, at its first session after the year one thousand eight hundred and fiftyone ; and then every twenty years thereafter, in proportion to the public taxes paid into the treas- ury of the State by the citizens thereof; and the average of the pubhc taxes paid by each county into the treasury of the State, for the five yeai'S preceding the laying off of the districts, shall be considered as its proportion of the public taxes, and constitute the basis of apportionment : Provided, That no county shall be di- vided 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 senatorial 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. 2. The house of commons shall be composed of one hun- dred and twenty representatives, biennially chosen by ballot, to be elected by counties according to their federal population, that is, according to their respective numbers, which shall be de- termined by adding to the whole number of free persons, includ- ing those bound to service for a term of years, and excluding Indians not taxed, thi-eefifths of all other persons ; and each county shall have at least one member in the house of com- mons, although it may not contain the requisite ratio of popula- tion. 3. This apportionment shall be made by the General Assem- bly, at the respective times and periods when the districts for the senate are herein before 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 congress, next preceding the pe- riod of making such apportionment. 19 20 STATE CONSTITUTION. 4. In making the apportionment in the house of commons, the ratio of representation shall be ascertained by dividing the amount of federal population of the State, after 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 representatives less than the number assigned to the said counties. To each county con- taining 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 re- presentatives, and so on progressively, and then the remaining representatives shall be assigned severally to the counties having the largest fractions. SECTION II. 1. Until the first session of the General Assembly which shall be had after the year eighteen hundred and fortyone, the senate shall be composed of members to be elected from the several districts herein after named, that is to say, the 1st district shall consist of the counties of Perquimons and Pasquotank ; 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, Edgecomb ; the 16th district, W^ayne ; 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, Granville ; 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, Buncombe, Haywood and Macon ; and the 50th district, Mecklenburg ; each district to be entitled to one senator. STATE CONSTITUTION. 21 2. Until the first session of the General Assembly after the year eighteen hundred and fortyone, the house of com- mons shall be composed of members elected from the coun- ties in the following manner, viz : The counties of Lincoln and Orange shall elect four members each. The counties of Burke, Chatham, Granville, Guilford, Halifax, Iredell, Mecklenburg, Rowan, Rutherford, Surry, Stokes, and Wake shall elect three members each. The counties of Anson, Beaufort, Bertie, Bun- combe, Cumberland, Craven, Caswell, Davidson, Duplin, Edge- comb, Franklin, Johnston, Montgomery, New Hanover, North- ampton, Person, Pitt, Randolph, Robeson, Richmond, Rocking- ham, Sampson, Warren, Wayne and Wilkes shall elect two mem- bers 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, Pasquotank, Perquimons, Tyr- rell, Washington and Yancy shall elect one member each. SECTION III. 1. Each member of the senate shall have usually resided in the district for which he is chosen for one year immediately 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. 2. All free men of the age of twentyone years, (except as is hereinafter declared) who have been inhabitants of any one district within the State twelve months immediately preceding 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. 3. No free negro, free mulatto, or free person of mixed blood, descended from negro ancestors to the fourth generation inclu- sive (though one ancestor of each generation may have been a white person,) shall vote for members of the senate or house of commons SECTION IV. 1. In the election of all officers whose appointment is confer- red on the General Assembly by the constitution, the vote shall be viva voce. 2. The General Assembly shall have power to pass laws regulat- ing the mode of appointing and removing militia officers. 22 STATE CONSTITUTION. 3. The General Assembly shall have power to pass general laws regulating divorce and alimony, but shall not have power to grant a divorce or secure ahmony in any individual case. 4. The General Assembly shall not have power to pass any private law, to alter the name of any person, or to legitimate any persons not born in lawful wedlock, or to restore to the rights of citizenship any person convicted of an infamous crime ; but shall have power to pass general laws regulating the same. 5. The General Assembly shall not pass any private law, unless it shall be made to appear that thirty days notice of applica- tion to pass such law shall have been given, under such directions and in such manner as shall be provided by law. 6. If vacancies shall occur by death, resignation or other- wise, before the meeting of the General Assembly, writs may be issued by the governor, under such regulations as may be pre- scribed by law. 7. The General Assembly shall meet biennially, and at each biennial session shall elect, by joint vote of the two houses, a secretary of state, treasurer and council of state, who shall continue in office for the term of two years. ARTICLE II. 1. The governor shall be chosen by the quahfied voters for the members of the house of commons, at such time and places as members of the General Assembly are elected. 2. He shall hold his office for the term of two years from the time of his 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. 3. The returns of every election for governor shall be sealed lip and transmitted to the seat of government, by the returning officers, directed to the speaker of the senate, who shall open and pubhsh them in the presence of a majority of the members of both houses of the General Assembly. The person having the highest number of votes, shall be governor ; but if two or more shall be equal and highest in votes, one of them shall be chosen governor by joint vote of both houses of the General Assembly. 4. Contested elections for governor shall be determined by both houses of the General Assembly, in such manner as shall be prescribed by law. STATE CONSTITUTION. 23 5. The governor elect shall enter on the duties of the office on the first day of January next after his election, having pre- viously taken the oaths of office in presence of the members of both branches of the General Assembly, or before the chief justice of the supreme court, who, in case the governor elect should be prevented from attendance before the General Assem- bly, by sickness or other unavoidable cause, is authorised to ad- minister the same. ARTICLE III. SECTION I- 1. The governor, judges of the supreme court, and judges of the superior courts, and all other officers of this State, (except justices of the peace and militia officers,) may be impeached for wilfully violating any article of the constitution, mal-adminis- tration or corruption. 2. Judgment, in cases of impeachment, shall not extend 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 indictment, trial, judg- ment and punishment according to law. 3. The house of commons shall have the sole power of im- peachment. The senate shall have the sole power to try all impeachments ; no person shall be convicted upon any im- peachment, unless twothirds of the senators present shall concur in such conviction ; and before the trial of any impeachment, the members of the senate shall take an oath or affirmation truly and impartially to try and determine the charge in question according to evidence. SECTION II. 1. Any judge of the supreme court, or of the superior courts, may be removed from office for mental or physical in- ability, upon a concurrent resolution of twothirds of both branches of the General Assembly. The judge, against whom the legis- lature may be about to proceed, shall receive notice thereof, ac- companied 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. 2. The salaries of the judges of the supreme court, or of the superior courts, shall not be diminished during their continuance in office. 24 STATE CONSTITUTION. SECTION III. Upon the conviction of any justice of the peace, of any In famous crime, or of corruption and mal-practice in office, the com- mission of such justice shall be thereby vacated, and he shall be forever disqualified from holding such appointment. SECTION IV. The General Assembly at its first session after the year one thousand eight hundred and thirtynine, and from time to time thereafter, shall appoint an attorney general, who shall be com- missioned by the governor, and shall hold his office for the term of four years ; but if the General Assembly should hereafter extend the term during wliich solicitors of the State shall hold their of- fices, then they shall have power to extend the term of office of the attorney general to the same period. ARTICLE IV. SECTION I. 1 . No convention of the people shall be called by the General Assembly, unless by the concurrence of twothirds of all the members of each house of the General Assembly. 2. No part of the constitution of this Stats shall bs 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 threefifths 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 pubhshed six months previous to a new election of members to the General Assembly. If, after such pub- lication, the alteration proposed by the preceding General Assem- bly, 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 Assem- b y shall prescribe a mods by which the amendment or amend- ments may be submitted to the qualified voters of the house of commons throughout the State ; and if, upon comparing the votes given in the whole State, it shall appear that a majority of the voters have approved thereof, then, aiid not otherwise, the same shall become a part of the constitution. STATE CONSTITUTION. SECTION II. 25 The thirtysecond section of the constitution shall be amended to read as follows : No person who shall deny the being of God, or the truth of the Cliristian religion, or the divine authority of the Old or New Testament, or who shall hold religious principles incompatible with the freedom or safety of the State, shall be ca- pable of holding any office or place of trust or profit in the civil department within this State. SECTION III. 1. Capitation tax shall be equal throughout the State upon all individuals subject to the same. 2. All free males over the age of twentyone years, and under the age of fortyfive years, and all slaves over the age of twelve years, and under the age of fifty years, shall be subject to cap- itation tax, and no other person shall be subject to such tax ; provided that nothing herein contained shall prevent exemptions 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 profit under the United States, or any department thereof, or under this State, or any other state or government, shall hold or exercise any other office or place of trust or profit under the authority of this State, or be eligible to a seat in either house of the General Assembly : Provided, that nothing herein contained shall extend to officers in the mihtia or justices of the peace. Ratified in convention, this eleventh day ) of July, in the year of our Lord, one^NATH'L. MACON, Pves. thousand eight hundred and thirty five. ) Edmund B. Freeman, Secretary of the Convention. Joseph D. Ward, Assistant Secretary. VOL. I. AN ORDINANCE TO CARRY INTO EFFECT THE AMENDED CONSTITUTION. Be it ordained and declared, by the delegates to this Con- vention, in convention assembled, and it is hereby ordained by the 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 be opened by the respective sheriffs, and kept open for three suc- cessive days, at the several election precincts in each and every county in the State, under the same rules and regulations, as now exist, for the election of members to the General 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 a ratification of the amend- ments. Those who wish a ratification of the amendments, voting with a printed or written ticket, '^ Ratification^^ — those of a con- trary opinion, '■'•Rejection.'''' Further, That it shall be the duty of the sheriffs to make du- plicate 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 copy transmitted to the governor of the State, at Raleigh. Be it further ordained by the authority of the same. That when the returns aforesaid shall have been received, the same shall be opened by the governor in the presence of the secretary of state and treasurer, and in case a majority of the votes polled shall be in favor of a ratification of the amendments, the same shall be forthwith made known by a proclamation of the governor STATE CONSTITUTION. 27 to the people of the State. And thereupon, the governor shall cause to be endorsed on the amendments, as enrolled by order of tlie convention, or shall annex thereunto, a certificate under his signature declaring that the said amendments have been ratified by the people of North Carolina, and the secretary of state shall countersign the said certificate, and annex thereto the great seal of the State, and the said amendments so enrolled with the certifi- cate aforesaid shall be forever kept among the archives of the State in the office of the secretary aforesaid. Be it further ordained by the authority aforesaid, That the amendments thus ratified shall take effect, and be in force, from and after the first day of January, A. D. one thousand eight hun- dred and thirtysix : 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 continue to exercise their respective functions until the governor, council of state, secretary of state and public treasurer appointed under the amended constitution shall enter upon the duties of their office. Ratified in Convention, this eleventh day } , » of July, anno Dom. one thousand eight V NAT H'L. MACON, Pres. hundred and thirty five. ) Edmund B. Freeman, Secretary of the Convention. Joseph D. Ward, Assistant Secretary. CONSTITUTION OF THE UNITED STATES. IN GENERAL ASSEMBLY, Nov. 20, 1788. Resolved, That it is the opinion of this house, a new conven- tion be recommended, for the purpose of reconsidering the new constitution held out by the federal convention as a government for the United States. Resolved, That it be recommended to such of the inhabitants of this State as are entitled to vote for members of the house of commons, at the annual election to be held in each county on the third Friday and Saturday in August next, to vote for five per- sons in each county, and one person in each 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 con- vention of the States previous to the meeting of the said conven- tion 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 : and every citizen within this State, being a freeholder, shall be eligible to a seat in the said Convention, sheriffs and re- turning officers excepted. Resolved, That the sheriffs of the counties in this State, do 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 requires them to advertise elections for members of the General Assembly. CONSTITUTION OF THE UNITED STATES. Resolved, That the persons so elected to serve in a State convention, do assemble and meet together on the third Monday in November, at such place as shall be appointed for the meeting of the General Assembly, then and there to deliberate and deter- mine on the said constitution, and on the amendments, if any ; and if approved of by them, to confirm and ratify the same on be- half of this State, and malce report thereof to congress and to the General Assembly. Resolved, That it be recommended by this Assembly, to the convention which is to meet on the third Monday in November to reconsider the new constitution, that they also consider the pro- priety of allowing the town of Fayetteville a 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. 29 IN CONVENTION, Saturday, Nov. 21, 1789. Whereas the general convention which met in Philadel- phia, in pursuance of a recommendation of congress, did recom- mend to the citizens of the United States, a constitution or form of government, in the following words, viz. We, the people of the United States, in order to form a more perfect Union, establish justice, insure domestic tranquilhty, pro- vide for the common defence, promote the general 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 con- j^^ j^^^^. gress of the United States, which shall consist of a senate and powers vested , - . in congress. house of representatives. SECTION II. The house of representatives shall be composed of members House of repre- chosen every second year by the people of the several states, and^gj^^grs^Ty^^ the electors in each state shall have the qualifications requisite for ^udificatfons'of electors of the most numerous branch of the state legislature. electors. 30 CONSTITUTION OF THE UNITED STATES. A representa- 2. No person shall be a representative who shall not have at- tive to be 25 : 7 . , , „ „ , , years a citizen tamed to the age of twentynve years, and been seven years a and ^an inhabi- citizen of the United States, and who shall not, when elected, be when diteS^^ ^ inhabitant of that state in which he shall be chosen. Representa- 3. Representatives and direct taxes shall be apportioned among lives and taxes . , , . , i • i i i • i ■ i ■ to be apportion- the scvcral States wmich may be mcluded withm this union, ac- numbers/"^ *° cording to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, Actual enumer- threefifths of all Other persons. The actual enumeration shall be ation every ten i-i-i ri/> ■ r ^ c years. made withm three years alter the farst meeting oi the congress oi the United States, and within every subsequent term of ten years, Limitation of in sucli manner as they shall by law direct. The number of re- the ratio of re- -in i r ^ • ^ i i presentation, prcscntatives shall iiot excecd one tor every thirty thousand, but each state shall have at least one representative ; and until such First apportion- enumeration shall be made, the state of New Hampshire shall be sentatives. entitled to choose three, Massachusetts eight, Rhode Island and Providence 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 elec- 4. When vacaucics happen in the representation from any state, vacancies. ^^^ ^^ executive authority thereof shall issue writs of election to fill such vacancies. House of rep- 5. The house of representatives shall choose their speaker and choose speaker Other oflicers ; and shall have the sole power of impeachment. &c. and have power of im- peachment. SECTION III. Senators, how 1- The Senate of the United States shall be composed of two haveavote'^. ° senators from each state, chosen by the legislature thereof, for [See art. 5.] gj-jj years ; and each senator shall have one vote. Senate divided 2. Immediately after they shall be assembled in consequence of selVSe "iho- the first election, they shall be divided as equally as maybe into f£/''^'^ ^^^° three classes. The seats of the senators of the first class shall be years. vacated at the expiration of the second year, of the second class at the expiration of the fourth year, and of the third class at the ex- piration of the sixth year, so that one third may be chosen every Executives of second year ; and if vacancies happen by resignation, or other- states to fill va- . , . , r- 1 1 • 1 /. 1 cancies in the wise, during the recess ot the legislature of any state, the execu- latures, &c. ^^^^ thereof may make temporary appointments until the next meeting of the legislature, which shall then fill such vacancies. CONSTITUTION OF THE UNITED STATES. 31 3. No person shall be a senator who shall not have attained to A senator aged T /■ 1 • 11 • • • r 1 TT • 1 "^0 ; nine years the age oi thirty years, and been mne years a citizen oi the United a citizen of the States, and who shall not, when elected, be an inhabitant of that and' an inhabl- state for which he shall be chosen. when^chosen^'^^ 4. The vice-president of the United States shall be president Vice president of the senate, but shall have no vote, unless they be equally di-of the"^seMte; •1 J to vote on an VlCiea. eq. div.only. 5. The senate shall choose their other officers, and also a presi-The senate to Ciioos6 their dent pro tempore, in the absence of the vice-president, or when president pro he shall exercise the office of president of the United States. empore, 6. The senate shall have the sole power to try all impeachments. The senate have When sitting for that purpose, they shall be on oath or affirmation, to try impeach- When the president of the United States is tried, the chief justice '^^'^^' shall preside : and no person shall be convicted without the con- currence of twothirds of the members present. 7. Judgment in cases of impeachment shall not extend further Extent of judg- than to removal from office, and disqualification to hold and enjoy impeachment; any office of honor, trust or profit under the United States : but f^r\hCTlFabl7by the party convicted shall nevertheless be liable and subject to in- indictment at dictment, trial, judgment and punishment, according to law. SECTION IV. 1. The times, places and manner of holding elections for senators Times, &c. of . . . II- holding elec- and representatives, shall be prescribed in each state by the legis- tions for sena- ,,/.,, -Ill tors and repre- lature thereoi ; but the congress may at any time by law make or sentatives regu- alter such regulations, except as to the places of choosing sena- ^^^^^ ^J^^ ° tors. congress. 2. The congress shall assemble at least once in every year, and Congress to as- 1 11 1 1 <^ Tvr 1 ■ -r\ 1 semble annual- such meeting shall be on the first Monday in December unless ly the istMon- they shall by law appoint a different day. unless,&c. SECTION v. 1. Each house shall be the iudge of the elections, returns and ^'^'^^ ^°"®^ , . . judge 01 the qualifications of its own members, and a majority of each shall election and . 11 qualifications of constitute a quorum to do business ; but a smaller number may its own mem- adjourn from day to day, and may be authorized to compel the at- tendance of absent members, in such manner, and under such penalties as each house may provide. 2. Each house may determine the rules of its proceedings. Each house to punish its members for disorderly behavior, and, with the concur- [°j™ 'and ^n- rence of twothirds expel a member. }^^ its mem- . . . bers. 3. Each house shall keep a journal of its proceedings, and from joumaisof each time to time publish the same, excepting such parts as may in and^nays ITow taken. 32 CONSTITUTION OF THE UNITED STATES. their judgment require secrecy ; and the yeas and nays of the members of either house on any question shall, at the desire of onefifth of those present, be entered on the journal. Adjoummentof 4. Neither house, during the session of congress, shall, without both houses. r t -i t r i i i the consent oi the other, adjourn tor more than three days, nor to any other place than that in which the two houses shall be sitting. SECTION VI. Senators and 1. The senators and representatives shall receive a compensa- to^brpaid,^&,c. tion for their services, to be ascertained by law, and paid out of SmstTnot^'T the treasury of the United States. They shall in all cases, except Y Ttf^J°"& treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective 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 which ces by "senators he was elected, be appointed to any civil office under the authority th-es'.^^'^^^^'^ ^ of the United States, which shall have been created, or the emol- uments 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 VII. Revenue bill to ^' -^^^ bills foT raising revenue shall originate in the house of house^of repre^ representatives ; but the senate may propose or concur with sentatives, &c. amendments as on other bills. Powers of the 2. Every bill which shall have passed the house of representa- con^ress^in'theti^^^ and the senate, shall, before it become a law, be presented to enactingof ^]^g president of the United States ; if he approve he shall sign it, forms of pro- })ut if not he shall return it, with his objections to that house in ceeding on bills ... . . , in that respect, whicli It shall have origmated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration twothirds 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 twothirds 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 excepted) after it shall have been presented to him, the CONSTITUTION OF THE UNITED STATES. 33 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 resolu- of the senate and house of representatives may be necessary (ex- adjournment, to cept on a question of adjournment) shall be presented to the presi- samlTsanction dent 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 twothirds of the senate and house of representatives, according to the rules and hmitations prescribed in the case of a bill. SECTION VIII. 1. The congress shall have power to lay and collect taxes, du- Congress shall ties, imposts and excises, to pay the debts and provide for the to'^lay^axesj'&c. common defence and general welfare of the United States ; but all duties, imposts and excises shall be uniform throughout the United States ; 2. To borrow money on the credit of the United States ; 2. Bor. money. 3. To regulate commerce with foreign nations, and among the 3 Remilate several states, and with the Indian tribes ; commerce. 4. To estabhsh an uniform rule of naturalization, and uniform 4. Establish the laws on the subject of bankruptcies throughout the United States 5 [zition and"^^^' 5. To coin money, regulate the value thereof, and of foreign ^'^"^^P^ '^^^• . ° 5. Com money, coin, and fix the standard of weights and measures ; &c. and fix ^rrt • 1 r -I -1 r r ■ • ■, • Weights and 6. lo provide tor the punishment 01 counterteitmg the securi- measures, ties and current coin of the United States ; pimishingcoun- 7. To estabhsh post offices and post roads ; r^^Establish 8. To promote the progress of science and useful arts, by se- ^p^/^^^^.'J^'^- curing for limited times to authors and inventors the exclusive right to their respective writings and discoveries ; 9. To constitute tribunals inferior to the supreme court; to g, t^ g^j^g^-^^^g define and punish piracies and felonies committed on the high infenortribu- seas, and offences against the law of nations ; 10. To declare war, grant letters of marque and reprisal, and 10. To declare make rules concerning captures on land and water ; '^^^' ^^^ 11. To raise and support armies, but no appropriation of money n. Raise ar- to that use shall be for a longer term than two years ; "^^^' ^'^' 12. To provide and maintain a navy ; 12. Provide a 13. To make rules for the government and regulation of the ^^l^^^j^^ j.yjgg land and naval forces ; for army and navy. 14. To provide for calHng forth the mihtia to execute the laws u. Provide for of the union, suppress insurrections and repel invasions ; miliTil. ""^^ ' ^ VOL. I. 5 34 CONSTITUTION OF THE UNITED STATES. 15. Provide for 15. To provide for organizing, arming and disciplining the mflitia, &c. 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 au- thority of training the militia according to the discipline prescribed by congress ; 16. Exercise 16. To exei'cise exclusive legislation in all cases whatsoever, exclusive juris- it-/ t m \ i 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, be- ^^' come the seat of the government of the United States, and to ex- ercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dock yards, and other need- ful buildings ; — and, 17. Make all 17. To make all laws which shall be necessary and proper for toThe execution carrying into execution the foregoing powers, and all other pow- of their powers. gj.g ^gg^g^ by this Constitution in the government of the United States, or in any department or officer thereof. SECTION IX. Importation of 1 ■ The migration or importation of such persons as any of the not tcTbe^pro"^ States now existing shall think proper to admit, shall not be pro- ter'^isos^Ys^et hibitcd by the congress prior to the year one thousand eight hundred article 5.] and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person. Habeas.corpus, 2. The privilege of the writ of habeas corpus shall not be sus- pended, unless when in cases of rebelhon or invasion the pubhc safety may require it. No bill of at- 3. No bill of attainder or ex post facto law shall be passed. tainder or ex ^ at • ■ t i n i i • post facto law. 4. INo capitation, or other direct tax shall be laid, unless in pro- according to portion to the census or enumeration herein before directed to be taken. No export duty, 5. No tax or duty shall be laid on articles exported from any of onrstate to State. No preference shall be given by any regulation of com- ^J|.*^''^^'^°'"'merce or revenue to the ports of one state over those of another : nor shall vessels bound to, or from, one state, be obhged to enter, clear, or pay duties in another. Public moneys, 6. No money shall be drawn from the treasury, but in conse- ow rawn,&.c.q^gj^^g q£ gp^jj^.Qpj,-^^jQj^g made bylaw; and a regular statement and account of the receipts and expenditures of all public money shall be published from time to time. No titles of no- 7. No title of nobility sliall be granted by the United States: sents,"&c.°^'^^'^'^^ ^^<^ Person holding any office of profit or trust under them, CONSTITUTION OF THE UNITED STATES. S5 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 confedera- Restrictions on J -i^ ' ' _ the power 01 the lion ; grant letters of marque and reprisal ; coin money ; emit states individu- bills of credit ; make any thing but gold and silver coin 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 any Powers which _ o ^ ./ ./ jjjg states can imposts or duties on imports or exports, except what may be ab- exercise only ... . , under the sanc- solutely necessaiy tor executing its inspection laws ; and the net tion of con- produce of all duties and imposts, laid by any state 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 con- trol of the congress. No state shall, without the consent of con- gress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay. ARTICLE II. SECTION I. 1. The executive power shall be vested in a president of the Executive pow- Gr VGStGQ. in 3, United States of America. He shall hold his office during the president, &c. term of four years, and, together with the vice-president, chosen for the same term, be elected as follows : 2. Each state shall appoint, in such manner as the legislature Electors of ^ ^ " president and thereof may direct, a number of electors, equal to the whole num- vice president. her of senators and representatives to which the state may be en- titled in the congress : but no senator or representative, or person holding an office of trust or profit under the United States, shall be appointed an elector. 3. The electors shall meet in their respective states, and Meeting of the GlGctors of vote by ballot for two persons, of whom one at least shall not be president, &c. an inhabitant of the same state with themselves. And they shall annulied'^by die make a list of all the persons voted for, and of the number of ^^[JJg^^'i^ votes for each ; which list they shall sign and certify, and transmit sealed to the seat of the government of the United States, direct- 36 CONSTITUTION OF THE UNITED STATES. ed 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 number of votes shall be president, if such number be a majority of the whole number of electors ap- pointed ; and if there be more than one who have such majority, and have an equal number of votes, then the house of representa- tives shall immediately choose by ballot one of them for presi- dent ; 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 the states shall be ne- cessary to a choice. In every case, after the choice of the presi- dent, the person having the greatest number of votes of the elec- tors shall be the vice-president. But if there should remain two or more who have equal votes, the senate shall choose from them by ballot the vice-president. Congi-ess may 4. The congress may determine the time of choosing the elec- choosin™he° tors, and the day on which they shall give their votes ; which day electors, &c. g|^g]| ^^ jj^g same throughout the United States, aualifications 5. No person except a natural born citizen, or a citizen of the presi en . United States, at the time of the adoption of this constitution, shall be eligible to the office of president ; neither shall any per- son be eligible to that office who shall not have attained to the age of thirtyfive years, and been fourteen years a resident within the United States. * In case of va- Q, In case of the removal of the president from office, or of cancy in the of- . , , . . . , .,. t i i i i fice of presi- his death, resignation or mability to discharge the powers and du- president to act, ties of the said office, the same shall devolve on the vice-presi- dent, and the congress 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 disability be removed, or a president shall be elected. Compensation 7. The president shall, at stated times, receive for his services, to the president. . i • i i n - i i • i t • • i j a compensation, which shall neither be increased nor aiminisnea 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. The president 8. Before he enters on the execution of his office, he shall to take an oath. , , ^ „ . , ^^ • Form of the take the lollowmg oath or affirmation : oath. 4 Wise. CONSTITUTION OF THE UNITED STATES. 37 2. " 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 and The president is navy of the United States, and of the militia of the several states, chief— he may when called into the actual service of the United States ; he may [qIJ" ^f "P'^Jy, require the opinion, in writing, of the principal officer in each ofandma^^^^' the executive departments, upon any subject relating to the duties pardons, &c. of their respective offices ; and he shall have power to grant re- prieves 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 ofHemay byad- ^ . . . ■^ice of the sen- the senate, to make treaties, provided twothirds of the senators ate, make trea- present concur ; and he shall nominate, and by and with the ad- ambassadors vice and consent of the senate, shall appoint ambassadors, other cers; butcon'- pubhc ministers and consuls, judges of the supreme court, and all feSn^appoint- other officers of the United States, whose appointments 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 President may may happen during the recess of the senate, by granting commis- j-ecel's!^'^'^^^^ ^" sions which shall expire at the end of their next session. SECTION III. He shall from time to time give to the congress information of President to re- , f. I . , J 1 • • 1 • 1 commend mea- the state ol the union, ana recommend to their consideration such sures to con- measures as he shall judge necessary and expedient ; he may, on fonvene andad- extraordinaiy occasions, convene both houses, or either of them, ^°"Jgj.^°!^^'"®^^_ and in case of disagreement between them, with respect to the ^^°^^' ^^^}^ ""e- '-' _ •■■ ceive ambassa- time of adjournment, he may adjourn them to such time as he shall dors, see the Ielws Gxccutcd think proper ; he shall receive ambassadors and other public min- and commissioii isters ; he shall take care that the laws be faithfully executed, and shall commission all the officers of the United States. SECTION IV. The president, vice-president, and all civil officers of the Unit- President and ■ otliGr ofiiCGrs ed States, shall be removed from office on impeachment for, and removable by conviction of, treason, bribery, or other high crimes and misde ™P^^^ ^^'^ ■ meanors. 38 CONSTITUTION OF THE UNITED STATES. ARTICLE III. SECTION I. Judicial power The judicial power of the United States shall be vested in one vested, in £L su- preme court &c. supreme court, and in such inferior courts as the congress may tiieS^offices° from time to time ordain and establish. The judges, both of the behav1or°°'^ Supreme and inferior courts, shall hold their offices during good behavior ; and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continu- ance in office. SECTION II. Extent of the 1. The judicial power shall extend to all cases, in law and equi- ju ci power. ^^^ 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 admiralty and maritime 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.* Original and 2. In all cases affecting ambassadors, other pubhc ministers and diction^of\"iie'*' consuls, and those in which a state shall be party, the supreme supreme court, qquj-j gj^all have Original jurisdiction. In all the other cases before mentioned, the supreme court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such re- gulations as the congress shall make. Trial of crimes 3. The trial of all crimes, except in cases of impeachment, to y jury, gj^^jj j^^ ^^ j^^,^ . ^^^ such trial shall be held in the state where The venue. the said crime shall have been committed ; but when not commit- ted within any state, the trial shall be at such place or places as the congress may by law have directed. SECTION III. Definition of ^ ' Treason against the United States, shall consist only in levy- treason, &c. jng war against them, or in adhering 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. [* Amended, see art. 11.] CONSTITUTION OF THE UNITED STATES. 39 2. The congress shall have power to declare the punishment of Congress to de- • r T_i J *^i^'^6 the pun- treason, but no attainder of treason shall work corruption oi blood, ishment of trea- or forfeiture, except during the life of the person attainted. ' ARTICLE IV. SECTION I. Full faith and credit shall be given in each state to the public Credit to be ° A 1 S^^^n in one acts, records and judicial proceedings of every other state. And state to the the congress may by general laws prescribe the manner in which of another.' such acts, records and proceedings shall be proved, and the effect thereof. SECTION II. 1 . The citizens of each state shall be entitled to all privileges Reciprocity of ^ " citizenship and immunities of citizens in the several states. throughout the 2. A person charged in any state with treason, felony, or other Criminals fly- . crime, who shall flee from justice, and be found in another state, state to another shall on demand of the executive authority of the state from J°p^^ dehvered which he fled, be delivered up, to be removed to the state hav- ing jurisdiction of the crime. 3. No person held to service or labor in one state, under the Runaway laws thereof, escaping into another, shall, in consequence of any delivered up. law or regulation therein, be discharged from such service or la- bor, but shall be delivered up on claim of the party to whom such service or labor may be due. SECTION III. 1. New states may be admitted by the congress into this Union; New states niay 1 1 11 1 r 1 1 • 1 • 1 . • T be admitted in- but no new state shall be lormed or erected withm the jurisdic- to the union, tion of any other state ; nor any state be formed by the junction ^' of two or more states, or parts of states, without the consent of the legislatures of the states concerned as well as of the con- gress. 2. The congress shall have power to dispose of and make all Congress to needful rules and regulations respecting the territory or other pro- teTritory^&c° perty belonging to the United States ; and nothing in this consti- tution shall be so construed as to prejudice any claims of the United States, or of any particular state. SECTION IV. The United States shall guarantee to every state in this Union Republican a republican form of government, and shall protect each of them ment°gulran-"" teed to each state, &c. 40 CONSTITUTION OF THE UNITED STATES. against invasion ; and on application of the legislature, or of the executive (when the legislature cannot be convened) against do- mestic violence. ARTICLE V. Mode'ofamend- The congress whenever twothirds of both houses shall deem it ing the consti- , „ ■, ■, . . . tution. necessary, shall propose amendments to this constitution, or, on the application of the legislatures of twothirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this constitution, when ratified by the legislatures of threefourths of the several states, or by conventions in threefourths 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. Assumption of i ^]} (Jebts contracted and encasements entered into, before the debts incurred ~ ~ ' under the con- adoption of this Constitution, shall be as valid against the United federation. r-, • • ■ i r • States under this constitution, as under the confederation. This constitu- 2. This constitution, and the laws of the United States which tion, acts of con- _ gress and trea- shall be made in pursuance thereof ; and all treaties made, or which supreme law — shall be made, under the authority of the United States, shall be bound^there^y^ the Supreme law of the land ; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding. Members of 3. The senators and representatives before mentioned, and the congress and 01 ^ _ the state legis- members of the several state legislatures, and all executive and bound by oath judicial ofRcers, both of the United States and of the several cons"itu°tion. ^^ States, shall be bound by oath or affirmation, to support this con- stitution ; but no rehgious test shall ever be required as a qualifica- tion to any office or public trust under the United States. ARTICLE VII. ^ne^tatersuf- ^^^ ratification of the conventions of nine states, shall be suf- ficient &c. CONSTITUTION OF THE UNITED STATES. 41 ficient for the establishment of this constitution between the states so ratifying the same. Done 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 eightyseven, and of the independence of the United States of America the twelfth. In witness whereof we have liereunto subscribed our names. GEORGE WASHINGTON, President, and deputy from Virginia. Delaware. GEORGE READ, GUNNING BEDFORD, Jr., JOHN DICKINSON, RICHARD BASSETT, JACOB BROOM. New Hamp.shire. JOHN LANGDON, NICHOLAS OILMAN. Massachusetts NATHANIEL GORHAM, RUFUS KING. Connecticut. WILLIAM SAMUEL JOHNSON, ROGER SHERMAN. New York. ALEXANDER HAMILTON. New Jersey. WILLIAM LIVINGSTON, DAVID BREARLY, WILLIAM PATTERSON, JONATHAN DAYTON. Pennsylvania. BENJAMIN FRANKLIN, THOMAS MIFFLIN, ROBERT MORRIS, GEORGE CLYMER, THOMAS FITZSIMONS, JARAD INGERSOLL, JAMES WILSON. GOVERNEUR MORRIS. Attest, Maryland. JAMES M'HENRY, DANIEL OF ST. THOMAS JENIFER, DANIEL CARROLL. Virginia. JOHN BLAIR, JAMES MADISON, Jr. North Carolina. WILLIAM BLOUNT, RICHARD DOBBS SPAIGHT, HUGH WILLIAMSON. South Carolina. J. RUTLEDGE, CHAS. COTESWORTH PINCKNEY, CHARLES PINCKNEY, PIERCE BUTLER. Georgia. WILLIAM FEW, ABR. BALDWIN. William Jackson, Secretary. Resolved, That this convention, in behalf of the freemen, citi- zens and inhabitants of the State of North Carolina, do adopt and ratify the said constitution and form of government. SAMUEL JOHNSTON, President. By order, J. Hunt, Secretary. IN CONVENTION, Monday, September 17th, 1787. Present : the states of New Hampshire, Massachusetts, Con- necticut, Mr Hamilton from New York, New Jersey, Pennsylva- nia, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia. 1. Resolved, That the preceding constitution be laid before the Constitution to United States in congress assembled, and that it is the opinion of ^nj^essf&c! VOL. 6 42' CONSTITUTION OF THE UNITED STATES. this convention, that it should afterwards be submitted to a con- vention of delegates chosen in each state by the people thereof, under the recommendation of its legislature, for their assent and ratification ; and that each convention assenting to, and ratifying the same, should give notice thereof to the United States in con- gress assembled, adav^forap-^'^ ^' R-ESGLVED, That it is the Opinion of this convention, that as pointing elec- goon as the Conventions of nine states shall have ratified this con- tors 01 presi- dent, &c. stitution, the United States in congress assembled, should fix a day on which electors should he 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 constitution. That after such Mode recom- publication, the electors should be appointed, and the senators and rying the con-' I'Gp^esentatives elected. That the electors should meet on the effect^"" "^^° day fixed for the election of the president, and should transmit their votes, certified, signed, sealed, and directed, as the consti- tution requires, to the secretary 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, open- ing, 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. IN CONVENTION, September 17th, 1787. Sir, Letter from the ^ • ^^ have now the honor to submit to the consideration of framed\he con'^ ^^® United States in congress assembled, that constitution which stitution, to the has appeared to us the most advisable. president of ^ ^ . congress. 2. The friends of our country have long seen and desired, that the power of making war, peace, and treaties ; that of levying money, and regulating commerce, and the correspondent execu- tive and judicial authorities, should be fully and eiFectually 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. CONSTITUTION OF THE UNITED STATES. 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. Individ- uals entering into society, must give up a share of liberty to pre- serve 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 surrendered, 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, ex- tent, habits, and pai'ticular 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 ex- pected ; and thus the constitution, which we now present, is the result of a spirit of amity, and of that mutual deference and con- cession, which the pecuharity of our pohtical 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 con- sider, that had her interest been alone consulted, the consequences might have been particularly disagreeable or injurious to others ; that it is liable to as few exceptions as could reasonably 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 great 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, 43 AMENDMENTS TO THE CONSTITUTION. ARTICLE I. Congress pro- CoNGRESs shall make no law respecting an establishment of re- mbited irom in- ... ^ . terfering with ligion, or prohibiting the free exercise thereof ; or abridging the freedom of freedom of speech, or of the press ; or of the people peaceably press Mdthe to assemble, and to petition the government for a redress of griev- nghtofpeti- ^^^^^ ARTICLE 11. Right of the ^ ^gll regulated militia being necessary to the security of a people to keep '=' . o ./ j and bear arms, free State, the right of the people to keep and bear arms shall not &C be infringed. ARTICLE III. No soldier to j^q soldier shall, in time of peace, be quartered in any house be quartered in -' . . . any house, dur- without the consent of the owner ; nor in time of war, but in a ing peace, with- -i j i i out consent, manner to be prescribed by law. &c. ARTICLE IV. No search war- 'pjjg x\?hi of the people to be secure in their persons, houses, rant to issue, ° . . except on pro- papers, and effects against unreasonable searches and seizures, shall oath, &c. ' not be violated ; and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describ- ing the place to be searched, and the persons or things to bo seized. ARTICLE V. No person to No person shall be held to answer for a capital or otherwise in- swer for a famous Crime, unless on a presentment or indictment of a grand on presentment, ju'^y 5 except in cases arising in the land or naval forces, or in the ^'^•,*^^^®P^'^^^ militia, when in actual service, in time of war or pubHc danger ; val forces, nor nor shall any person be subject for the same offence to be twice to answer for . , •' ^ . the same of- put m jeopardy of life or limb ; nor shall be compelled in any ' criminal case, to be a witness against 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 compensa- tion. CONSTITUTION OF THE UNITED STATES. ARTICLE VI. 45 In all criminal prosecutions, the accused shall enjoy the right to fp^^^^'J'^'Jf/ a speedy and public trial, by an impartial jury of the state and pubiic^triai^by district wherein the crime shall have been committed, which dis- criminal pros- • 1 1 1 J u • ecutions. trict shall have been previously ascertamed by law, and to be m- formed of the nature and cause of the accusation ; to be confront- ed 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. In suits at common law, where the value in controversy shall ^^iS^toC^ti'jal^^ exceed twenty dollars, the right of trial by jury shall be preserv- ^^^°™^°'^^^^^^g' ed ; and no fact tried by a jury shall be otherwise re-examined in of twenty dol- any court of the United States, than according to the rules of the common law. ARTICLE VIII. Excessive bail shall not be required, nor excessive fines ™pos-^j^^^'^^^®^^.^^g^'^j['ij|( cruel ments ited. ed, nor cruel and unusual punishments inflicted. cruel pumsh- ^ ments, prohib ARTICLE IX. The enumeration in the constitution, of certain rights, shall not Rights enume- ' _ 1 rated not to dis- be construed to deny or disparage others retained by the people, parage those retained. ARTICLE X. The powers not delegated to the United States by the constitu- Powers not del- tion, nor prohibited by it to the states, are reserved to the states reserved to the ^•1 1 ^1 1 states or peo- respectiveiy, or to the people. pie. ARTICLE XL The judicial power of the United States shall not be construed Restriction of , . . , . , judicial powers. to extend to any suit m 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. 1. The electors shall meet in their respective states, and vote Mode of elect- by ballot for president and vice-president, one of whom, at least, Jfent^arXvke- shall not be an inhabitant of the same state with themselves; they P[*^?^'^?"g "^ ^^® shall name in their ballots the person voted for as president, and in distinct ballots the person voted for as vice-president ; and they 46 CONSTITUTION OF THE UNITED STATES. 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 Hsts they shall sign and certify, and transmit seal- ed 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 per- son having the greatest number of votes for president, shall be the president, 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 represen- tatives shall choose immediately, by ballot, the president. But in choosing the president, the votes shall be taken by states, the re- presentation from each state having one vote ; a quorum for this purpose shall consist of a member or members from twothirds 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-pre- sident shall act as president, as in the case of the death or other constitutional disability 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 major- ity 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 pur- pose shall consist of twothirds of the whole number of senators, and a majority of the whole number shall be necessary to a choice. 3. But no person constitutionally ineligible to the office of pre- sident, shall be eligible to that of vice-president of the United States. REVISED STATUTES CHAPTER 1. REVISED STATUTES AN ACT CONCERNING THE REVISED STATUTES. Section 1 . When the revised statutes shall go into operation. 2. Former acts on the subjects em- braced in the revised statutes, and all British statutes repealed after the 1st of January, 1838. 3. Effect of such repeal on rights ac- crued or suits commenced. 4. Effect of such repeal on offences committed or penalties incurred. 5. Effect on suits or prosecutions com- menced for offences. 6. No act heretofore repealed shall be revived by such repeal. 7. Effect of the repeal on persons hold- ing offices. Section 8. What acts are not included in the repealing clause. How the revised statutes shall be published. What shall be ^con- tained in the first volume. What in a second volume. Number of copies to be published — Copy right to^be "secured to the State. How the copies^.shall be distributed or disposed of. The governor to make compensa- tion to the superintendents. The copies so prmted to be received as evidence. 9. 10. 11. 12. 13. 14. 1. Be it enacted by the GeneralJlssemhly of the State of JYorth Carolina, and it is hereby enacted by the authority of the same. That the followmg acts passed at the present session of this Gen- When the re- eral Assembly, and known as " The Revised Statutes," shall take J^^^f^ ^J^^J^'^^^^ effect and go into operation on the first day of January next and operation. not sooner, except those as to which a different provision is ex- pressly made therein and the acts concerning courts of justice, the militia, the collection and management of the public revenue, the treasurer of the State and comptroller, pilots and pilotage, salaries and fees, which shall take effect immediately ; to wit : An act ascertaining the mode of proving book debts. An act concerning entries and grants of land. An act concerning wrecks and wrecked property. An act concerning the militia of this State. An act concerning pubhc documents. An act concerning the mode of choosing senators and repre- sentatives in the congress of the United States. 7. An act concerning bastardy and prescribing'the mode of le- gitimating bastard children in certain cases. 8. An act concerning divorce and alimony. 9. An act concerning attorneys at law. 10. An act concerning constables. 1 1 . An act providing for the support of the poor. VOL. I. 7 1. 2. 3. 4. 5. 6. 50 REVISED STATUTES. [ChaP. I. 12. An act concerning bail in civil cases. 13. An act concerning executors and administrators. 14. An act concerning coroners. 15. An act concerning the comptroller. 16. An act concerning quarantine and to prevent the introduc- tion and communication of contagious diseases. 17. An act concerning the treasurer of the State. 18. An act to provide for the collection and management of a revenue for this State. 19. An act concerning rehgious societies and congregations. 20. An act prescribing what shall be evidence in certain cases. 21. An act to prevent the abatement of suits in certain cases. 22. An act to prevent the destruction of oysters in this State. 23. An act concerning the secretary of State. 24. An act concerning mad dogs. 25. An act concerning last wills and testaments. 26. An act for the relief of such persons as have been disabled by wounds or rendered incapable of procuring for themselves and famihes, subsistence, in the militia service of this State, and pro- viding for the widows and orphans of such as have died. 27. An act concerning overseers. 28. An act for restraining the taking of excessive usury. 29. An act providing for the appointment of electors to vote for a president and vice-president of the United States. 30. An act concerning the action of replevin. 31. An act concerning hunting. 32. An act concerning the currency of this State. 33. An act concerning the draining of lands. 34. An act providing for the appointment of notaries. 35. An act concerning corporations. 36. An act to establish a fund for internal improvement and to create a board for the management thereof. 37. An act prescribing a mode by which partition of real and personal estates may be made among tenants in common, and in what cases such estates may be sold for a division. 38. An act to reduce into one the several acts concerning pilots and commissioners of navigation. 39. An act concerning the attorney general and solicitors for the State. 40. An act concerning strays. 41. An act concerning idiots and lunatics. 42. An act concerning weights and measures. 43. An act authorizing attachments to issue for the recovery of debts and directing the proceedings thereon. 44. An act concerning iron and gold mines. 45. An act concerning fences. 46. An act to regulate descents. 47. An act concerning the appointment and duties of a patrol in each county. 48. An act concerning legacies, filial portions and distributive shares of intestates' estates. Chap. I.] revised statutes. 51 49. An act concerning cattle, horses and hogs. 50. An act for the rehef of sick and disabled American sea- men. 51. An act concerning the repeal of statutes. 52. An act concerning incorporated towns. 53. An act to enable women in certain cases to maintain actions of slander. 54. An act concerning charities. 55. An act for regulating ordinaries. 56. An act concerning the university of North Carolina. 57. An act for the more effectual suppressing of vice and im- morality. 58. An act prescribing the mode of recovering against certain officers therein mentioned and their securities. 59. An act concerning apprentices. 60. An act concerning oaths. 61. An act concerning the governor and council of state. 62. An act concerning the improvement of rivers and creeks and to prevent obstructions to their navigation. 63. An act concerning mills and mihers. 64. An act concerning the appointment of guardians and the management of orphans and their estates. 65. An act for the relief of insolvent debtors. 66. An act concerning the supreme court. 67. An act concerning courts of equity. 69. An act concerning the powers and jurisdiction of justices of the peace. 70. An act appointing commissioners to take affidavits. 71. An act to empower the several county courts to establish fairs in their respective counties. 72. An act declaring what parts of the common law shall be in force in this State. 73. An act prescribing the salaries and fees of the several offi- cers in this State. 74. An act concerning offices. 75. An act concerning the burning of woods. 76. An act concerning the seat of government and public buildings. 77. An act concerning surety and principal. 78. An act to create a fund for the establishment of common schools. 79. An act providing for the appointment and directing the du- ties of county trustees. 80. An act concerning bills, bonds and promissory notes. 81. An act prescribing the mode of subjecting the lands of deceased debtors for the payment of their debts. 82. An act concerning auctions and auctioneers. 83. An act concerning the clerks of the county and superior courts. 84. An act concerning deeds and conveyances of lands and slaves, mortgages and powers of attorney, their execution, probate and registration. 52 REVISED STATUTES. [ChAP. I. 85. An act concerning sheriffs. 86. An act for limiting the time within which actions may be brought and for quieting the title to lands and slaves, and pre- scribing the time within which presumption of satisfaction may arise. 87. An act concerning waste. 88. An act concerning gaming. 89. An act concerning the processioning of lands. 90. An act concerning courts of justice, practice, pleas and process, 91. An act concerning registers. 92. An act prescribing the disposition of money remaining in the hands of clerks and sheriffs a certain time. 93. An act concerning court houses, prisons and stocks, and prescribing the appointment and duties of the treasurer of public buildings. 94. An act concerning the appointment and duties of clerks and masters in equity. 95. An act concerning county revenue and county charges. 96. An act concerning marriage. 97. An act concerning prisoners. 98. An act for the prevention of frauds and fraudulent convey- ances. 99. An act concerning estates. 100. An act concerning crimes and punishments. 101. Aq act concerning executions and execution sales. 102. An act concerning appeals and proceedings in the nature of appeals. 103. An act concerning the General Assembly of the State of North Carolina. 104. An act concerning the public roads, ferries and bridges in this State. 105. An act concerning slaves and free persons of color. 106. An act concerning forcible entry and detainer. 107. An act concerning writs of quo warranto and mandamus. 108. An act to prohibit the circulation of bank notes under five dollars. 109. An act concerning the amendment of process, pleadings and other proceedings at law. 110. An act concerning widows. 111. An act to prevent the taking away of boats, canoes and pettiaugers from landings or elsewhere without leave. 112. An act concerning the public arms. 113. An act concerning proceedings in criminal cases. 114. An act for the better security of personal liberty. 115. An act for establishing public landings and places of in- spection, and for the appointment of inspectors and regulation of inspections. Former acts on 2. All acts and parts of acts passed before the present session the sub^ects^ ^f j-j^jg General Assembly, the subjects whereof are revised and the revised rc-enacted in the revised statutes, or which are repugnant to the ^n British"'^ provisions therein contained, and all the statutes of England or Chap. L] revised statutes. 53 Great Britain heretofore in use in this State, are hereby declared statutes repeal- to be repealed and of no force and effect from and after the first ^^gj^fYj^^Jj^ day of January next, with the exceptions and limitations hereafter i83s. mentioned. 3. The repeal of the acts and statutes mentioned in the next Effect of such preceding section shall not affect any act done, or any right accru- Accrued "riiitl ing or accrued or estabhshed, or any suit or proceedings had or oommeuced. commenced in any case before the time when such repeal shall take effect, but the proceedings in every such case shall be con- formed where necessary to the provisions of the revised statutes. 4. No offence committed, and no penalties or forfeitures ^^®°^ °^ ^^^^ incurred, under any of the acts hereby repealed and before the fences commit- time when such repeal shall take effect, shall be affected by the ^?^ °^ penai- , , '■ , . -. ^ , r r • ties incurred. repeal, except that when any punishment, penalty, or forfeiture shall have been mitigated by the provisions of the revised statutes, such provisions may be extended and apphed to any judgment to be pronounced after the said repeal. 5. No suit or prosecution pending at the time of the said repeal ^^'^'^^ °" ^^^^'^ P ™ -iri r J^, or prosecutions tor any offence committed, or lor the recovery oi any penalty commenced for or forfeiture incurred, under any of the acts hereby repealed, shall offences. be affected by such repeal, except that the proceedings in such suit or prosecution shall be conformed when necessary to the provisions of the revised statutes. 6. No act which has heretofore been repealed, shall be revived No act hereto- by the repeal contained in this act, of any of the acts herein before shall'^be re-^ mentioned. vived by such 7. All persons who, at the time when the said repeal shall take E^ect of the effect, shall hold any office under any of the acts hereby repealed, repeal on per- shall continue to hold the same according to the tenure thereof, offices. ° except those offices which may have been abohshed, and those as to which a different provision shall have been made by the revised statutes. 8. No act of a private or local nature, no act containing a What acts are grant of corporate privileges for any purpose, no act granting "j^g ^^"p^^^j?^" privileges or imposing duties in any particular county inconsistent clause. with the general provisions of law, no act regulating the time, place and manner of elections, musters or reviews in any county, no act relating to fisheries in any particular section of the country, no act providing for the support of the poor in any county, and no act directed to be pubhshed by the tenth section of this act, shall be construed to be repealed by the second section of this act. 9. The revised statutes enumerated in the first section of this How the re- act, shall not be pubhshed in the usual pamphlet form, (except shall be pub- those hereinbefore directed to take effect immediately,) with the 'i*ed. other acts of the present session, but shall be pubhshed in a separate volume, under the superintendence and direction of two commissioners to be appointed by the governor, who, in case of vacancy after the appointment, shall fill the same ; who shall pro- cure the same to be done in good style upon the most economical terms, giving a preference, when the style and terms of printing are equal, to the printers of this State, and shall take bond, for the 54 REVISED STATUTES. [ChaP. I. faithful performance of the work, of those who may undertake the same. They shall be arranged in the publication in alphabetical order, according to their heads or titles, with maj'ginal references as reported by the commissioners of revisal, and also with refer- ences to the decisions of the supreme court upon their subject What shall be matter, and with a full index. In the same volume shall be pub- the fosrvol^ lished the constitution of the United States, and the constitution ume. and bill of rights of this State, and the Mecklenburg declara- tion of independence, with a short narrative thereof; there shall also be published in the same volume the acts of a public nature passed at this session, excluding all acts granting corporate priv- ileges. What in a sec- 10. There shall be pubhshed in a second volume the second Olid volume, charter of Charles the Second to the lords proprietors of this State, the great deed of grant from the lords proprietors, the grant from George the Second to Earl Granville, and the following acts, to wit : — All the acts relating to the boundary of the State and its several counties, all acts ceding the lands of this State to the general government, all acts incorporating banks, and rail road, turnpike and navigation companies, which are now in force and use, all acts relative to the incorporation or the corporate powers of the trustees of the university, and such other acts now in force and not repealed by this act, as the superintendents may in their discretion think proper to place in the said second volume. Number of 11. There shall be published of the first volume of the said *^°hrsh"i^*^ revised statutes five thousand copies, and of the second volume C y right to One thousand copies, the copy right whereof shall be secured to til ^stT^*^ ^° ^'^^^ State by the said superintendents, and the expense of pre- paring, printing, pubhshing, binding and distributing said copies shall be paid by the public treasurer on the warrant of the gov- ernor, founded on requisitions made from time to time by the said superintendents. How the copies 12. The said copies, when completed, shall be distributed tribiited and under the direction of the governor, as follows, to wit : — To the disposed of. hbrary of the congress of the United States ten copies ; to the several states and territories three copies each ; to the library of the university of North Carolina three copies ; to the governor, treasurer, secretary of state, and comptroller, two copies each for the use of their respective offices ; to the state library five copies ; to the clerks of both houses of the General Assembly, five copies each for the use of their respective houses ; to the clerk of the supreme court, and the clerks of the several superior and county courts, one copy each for the use of their respective courts ; to the judges of the supreme and superior courts one copy each ; to the members of the present General Assembly, who shall not be justices of the peace on the first day of January, one thousand eight hundred and thirtyeight, one copy each ; and to the justices of the peace of the several counties one copy each of the first volume only. All the remaining copies shall be sold for the ben- efit of the state by such person, in such manner and upon such terms as the governor shall direct and appoint. Chap. IL] ABATEMENT. 55 13. The said volumes shall be published as speedily as prac- The governor ticable, and when completed and delivered to the order of the p°nsation°to" governor, the superintendents shall receive such compensation as i,he superiiueu- to the governor shall seem just and reasonable, to be paid by the public treasurer upon his warrant. 14. The copies of the revised statutes which shall be printed The copies so as aforesaid, shall be received as evidence of the law before all received ° tribunals and in all places, in the same manner, to all intents andidence. purposes as the originals in the office of the secretary of state. [Ratified 23d January, 1837.] as ev- CHAPTER 2. ABATEMENT. AN ACT TO PREVENT THE ABATEMENT OF SUITS IN CERTAIN CASES. Section 1. Suits uot to abate by the death of par- ties. Nor where a term intervenes be- tvsreen the death of a party and the qualification of ids executor or ad- ministrator. Nor while a contest is pending for ad- ministration or for probate of a will. Nor by the marriage of the plaintiff — Husband made party to give new security for the costs. Nor by the marriage of a feme sole defendant. 2. 3. Section 6. Nor by the death of an executor or administrator, plaintiff or defendant. 7. Action of ejectment on the death of the defendant may be revived against his heirs or devisees. 8. Court may appoint guardians for in- fant defendants in ejectment. 9. How service to be made when heirs or devisees are out of the State. Actions of detinue or trover, or for in- juries to real or personal property, not to abate by the death of either party. Appeals not to abate by the death of either party. 10. 11 1. Be it enacted by the General Assembly of the State o/Suitsnotto J^orth Carolina, and it is hereby enacted by the authority of ^Ae death of par- same, That it shall and may be lawful for the heirs, executors, or ties, administrators to carry on every suit or action in courts after the death of either plaintiff or defendant, and every such suit or action may be proceeded on by application of the heirs, executors or administrators of either party. 2. Where a term of the superior court of law, or the court of Nor where a equity, or a session of the court of pleas and quarter sessions, be'tweTnThe"^^ shall intervene between the death of any plaintiff or defendant, and death of a par- qualification of the executors or administrators of such deceased J,a^i"ficatfon of plaintiff or defendant, the intervention of such term or session his executor or shall not work any abatement or discontinuance of such suit. administrator. 1. 1736, c. 253, s. 1. 2. 1~S9, c. 314, s- 6. 56 ABATEMENT. [ChAP. II. Nor while a 3. Whenever any plaintiff or defendant in any suit shall die, ^i^'for admin^'^'^^ there shall be any contest for the administration on the estate isiration or for of the deceased, or for the probate of any last will and testament probate of a ^^ ^^^^^ deceased person, such suit shall be continued from term to term until said contest is determined, and until after the expira- tion of one term after such determination, when the same may be abated by plea. Nor by the 4. No suit in any court of law or equity, brought or prosecuted, marriage of the shall abate on account of the plaintiff's marriage, and it shall be ^ ^^"^ ' lawful for the husband of any woman having a suit depending, to make himself a party thereto, on motion at the next or succeeding term after his marriage, and the suit shall afterwards be carried on as if he and his wife had been originally plaintiffs. Provided partv to eive aZioa?/s, whcn application is made by any person who has married new security a feme sole plaintiff, to be plaintiff in the prosecution of any suit for the costs. hj-Qught by his wife before marriage, it shall be the duty of the clerk of said court to take bond and security for the payment of the costs in like manner and form as is usual in other cases ; and in case of failure to prosecute with effect, the said husband and his securities shall be held and deemed liable for the payment of costs in the same manner as other plaintiffs who have failed to prosecute, and shall be subject to the same writs of execution, and, upon said bond being executed, the security originally given for the prosecution of the suit shall be discharged from any liability thereon. Nor by the 5. Whenever a feme sole defendant shall marry pending the marriage of a g^^jt j^gj. husband may he made party defendant, if the plaintiff fCTJflC sole Q-G- J ^ L J -^ _ 1 ■fendant. shall SO choose, and the suit afterwards shall proceed against such feme and her husband. Nor by the 6. No suit to which an executor or administrator is party, death of an ex- plaintiff or defendant, shall abate by the death of such executor or Gcutor or 3.0.- • • . ministrator, administrator, but the same may be revived by or against the plaintiff or de- administrator de bonis non, or the executor of the executor of such deceased party, as the same may be revived by the existing law by or against an executor upon the death of his testator, plaintiff, or defendant. Action of 7. No action of ejectment shall abate by the death of any de- tlT'^de'^h^'of'^ fendant in said action, but the same may be revived by serving on the defendant, the lieirs at law, or devisees of said defendant, or the guardian, a^ aL^t Mr^^*^ within two terms after his decease, a copy of the declaration filed heirs or devi- in said action, together with a notice to the heirs or devisees, or sees. thgjj. guardian if they be minors, to appeal' 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 hving. Court may ap- 8. Whenever any of the heirs at law, or devisees of such de- point guardians fendant, to whom the land in dispute shall descend or be devised, for infant de- '■ fendants in ejectment. 3. 1799, c. 532, s. 4. 4. 1793, c. 505, s. 1 and 2. 5. Amendment. 6. 1824, c. 1247. 7. 1799, c. 532, s. 1. 8. 1799, c. 532J s. 2. Chap. IL] abatement. 57 shall be minors without guardian, the court wherein the said suit is pending, shall be authorized and empowered, upon application, to appoint a guardian or guardians to defend said suit in behalf of said minor or minors, who shall be next of kin to him or them, or such other person or persons as the court shall approve. 9. Whenever any of the heirs or devisees, or their, or either How service to of their guardians, shall reside out of the State, the sheriff of the ^j^^^'ljgjl.g ^^^ county to whom the declaration and notice shall issue, shall upon devisees are out making his return state the fact, and an ahas declaration and notice *^" shall issue, and an advertisement of such notice shall be made in some public gazette of this State, and such as the court shall pre- scribe, for the space of three months : and if the same return shall be made after such advertisement as aforesaid, the suit may be prosecuted in such manner and to the same effect, as if such dec- laration and notice had been served. 10. No action of detinue, or trover, or action of trespass vi et^*^^^""^^ °^^^*' ' ' i inue or trover armis, or trespass on the case, where property, either real or per- or for injuries sonal, is in contest, or brought to recover damages done to prop- so^afp^J ^"' erty, real or personal, and which is not merely vindictive, shall, in not to abate by any cause or court, abate or be discontinued by the death of either g^'^^g^^p^"^ party, plaintiff or defendant, but the same shall and may be revived in the manner prescribed for the revival of other actions. 11. No appeal, in any cause or court whatever, shall be abated Appeals not to by the death of either plaintiff or defendant, but may be proceeded death o^ eMer on by application of the heirs, executors or administrators of either party. party. , V _y- 9. 1799, c. 532, s. 3. / fc ex O Cl L£, 10. 1799, c. 532, s. 5. 1805, c. 679, s. I. 11. 1785. c. 233, s. 2. Note. — References to Adjudged Cases. Sect. 1. Hamilton vs. Jones, 1 Murph. 411. Smith vs. Walker, 2 Car. Repos. 244. Sect. 4. Gerard vs. Pierce, 1 Murph. 161. Sect. 7. Ray vs. Simpson, 2 Car. Repos. 249. Sect. 10. Estis vs. Lenox, Conf. 72. McAlester vs. Spillar, ib. 95. Arnold vs. Lanier, I Car. Repos. 529. Fellows vs. Fulgham, 3 Murph. 254. Brown vs. Blick, 3 Murph. 511. McClure vs. Miller, 4 Hawks, 133. VOL. I. 8 68 AMENDMENT. [Chap. III. CHAPTER 3. AMENDMENT. AN ACT CONCERNING THE AMENDMENT OF PROCESS, PLEADINGS, AND OTHER PROCEEDINGS AT LAW. Section General power of courts to amend before judgment. Adverse party to answer amendments in substance. Formal defects may be amended af- ter judgment. Returns by ofRcers, &c., may be amended in matters of form. Certain defects to be disregarded after verdict. Section 6. Such defects to be supplied and amended. 7. Amendments not to be made without an order of court. 8. Formal defects to be disregarded on general demurrer. 9. Such defects to be amended. 10. The provisions of this act shall ex- tend to all actions and proceedings in any court of law. General power of courts to amend before judgment. 1. Be it enacted by the General Assembly of the State of JVorth Carolina, and it is hereby enacted by the authority of the same, That the court in which any action shall be pending, shall have power to amend any process, pleading or proceeding in such ac- tion, either in form or substance, for the furtherance of justice on such terms as shall be just, at any time before judgment rendered thereon. Adverse party 2. If such amendment be made to any pleading in matter of to answer substance, the adverse party shall be allowed an opportunity, ac- substance. cording to the course and practice of the court, to answer the pleading so amended. Formal defects 3. After judgment rendered in any cause, any defects or imper- may be aniend- fections in matter of form, contained in the record, pleadings, pro- ment. cess, 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 vari- ance 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. Returns by of- 4. All returns made by any sheriff or other officer, or any court, fleers &c. may or Subordinate tribunal, to any court, may be amended in matter mauTrTof'^ ^^ o^ ^OYm, by the court to which such returns shall be made, in form. their discretion, as well before as after judgment. Certain defects to be dis re- garded after verdict. 5. When a verdict shall have been rendered in any cause, the judgment thereon shall not be stayed, nor shall the judgment upon such verdict, or any judgment upon confession, default, nihil dicit, or non sum informatus, be reversed, impaired, or in any way affected by reason of the following imperfections, defects, matters, Chap. III.] amendment. 59 or things, or any of them in the pleadings, 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 officer, or for the want of any suggestion for awarding process, or for any insufficient suggestion ; for any imperfect or insufficient return of any sheriff or other offi- cer ; or that the name of such officer is not set to any return ac- tually made by him ; for any variance between the original writ, bill, plaint and declaration, or between either of them ; for any mispleading, 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 twentyone years of age having appeared by attorney, if the verdict or judgment be for him ; for the want of any allegation or averment, on account of which omission, a special demurrer could have been maintain- ed ; for omitting any allegation or averment of any matter, with- out proving which, the jury ought not to have given such ver- dict ; for any mistake in the name of any party or person, or in any sum of money, or in the description of any property, or in the reciting or stating any day, month or year, when the correct name, time, sum or description, shall have been once rightly al- leged 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 making up the record thereof, or in any continuance or other entry upon such record ; for any other default or negli- gence of any clerk, or officer of the court, 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 the ?"'^^ '^'^('^^'^^ ^*? ,. . ^ , 1 11 1 I' 1 1-1 be supplied and precedmg section enumerated, and all others oi the like nature, amended, not being against the right and justice of the matter of the suit, and not altering the issue between the parties or the trial, shall be supplied and amended by the court, where the judgment shall be given ; or by the court, into which such judgment shall be re- moved by writ of error or appeal. 7. No process, pleadine or record, shall be amended or im- '^'^^'^'J'"^•l*^ , , ^, , 1 ^ , '-' ^ /. 1 , not to be made paired by the clerk or other officer oi any court, or by any other without an or- person, without the order of such court, or some other court of'^^'^"^ c""""^- competent authority. 8. When any demurrer shall be entered in any action, and issue ^•^J"'"?^? '^^^^'=*? be joined thereon, the court shall proceed and give judgment ed on general according as the very right of the cause and matter in law shall ciemurrer. appear, without regarding any defect or other imperfection in any process or pleading, so as sufficient matter appear in the pleadings to enable the court to give judgment according to the very right of the cause, unless such defect or other imperfection be specially expressed in the demurrer. 9. After issue shall be joined on any demurrer, the court shall g^^j^ jgj.g^,jg ^^ amend every such defect or other imperfection in any process or be amended, pleading in the last section mentioned, other than those which the party demurring shall specially express in his demurrer. 60 APPEALS. [Chap. IV. The provisions 10. The provisions of this act shall extend to all the courts of shaii^ex^end to ^^^^ State, from the supreme court down to the lower tribunals, all actions and and to all actions in the said courts of law, and to all suits for the any^court oV"^ recovery of any debt due to this State, or for any debt, duty, or law. revenue, belonging to said State, and also to all actions for penal- ties and forfeitures, to all writs of mandamus and prohibition, to all informations in the nature of a quo warranto, to writs of scire facias, and to the proceedings thereon, to all writs of error, appeals and proceedings in the nature of appeals. Note. — See the English statutes of 14 Edwd. 3d. c. 6 ; 9 Hen. 5th, c. 4 ; 4 Hen. 6th, c. 3 ; 8 Hen. 6th, c. 12 and 15 ; 32 Hen. 8th, c. 30 ; 18 Eliz. c. 14 ; 27 Eliz. c. 5 ; 21 Jac. 1st. c. 13; 16 and 17 Car. 2d, c. 8 ; 4 and 5 Anne, c. 16 ; 5 Geo. 1st. c. 13; ~- all which are declared to be in force in this State, by the act of 1777, c. 115, sec. 35 ; see also the act of 1786, c. 253, sec. 3; 1790, c. 318, sec. 2; 1794, c. 414, sec. 16; 1824, c. 1233. Note. — References to Adjudged Cases, Cowper -ps. Edwards, 1 Hayw. 19. Troxlev vs. Gibson, ib. 465. Paircloth rs. In- gram, ib. 501. Singleton vs. Kenedy, Conf. Rep. 520. Dudley vs. Carmolt, 1 Murph. 339. Tear vs. White, ib. 412. Davis vs. Evans, 2 Murph. 202. McLean vs. Benton, 1 Car. Repos. 472. Williams vs. Leishire, No. Ca. Term. R. 146. Justices vs. Saw- yer, 2 Hawks 61, UiTord fs. Lucas, ib. 214. Matlock t)s. Gray, 4 Hawks 1 . Wilson «s. Myers, ib. 73. Stamps vs. Graves, ib. 102. Worthingtonns. Arnold, 2 Dev. 363. State vs. Cherry, ib. 550. Grist vs. Hodges, 3 Dev. 198. West vs. Rutledge, 4 Dev. 31. CHAPTER 4- APPEAL.S, ANB PROCEEDINGS IN THE NATURE OF APPEALS. AN ACT CONCERNING APPEALS AND PROCEEDINGS IN THE NATURE OF APPEALS. Section 1. Appeal allowed from any sentence, judgment, or decree of the county to the superior court, upon the par- ty's giving security. 2. Appeals allowed from orders of the county court, appointing or remov- ing a guardian — On the probate of wills or granting letters of adminis- tration — On the trial of caveats — In cases of petition for damages caused by the erection of public mills — In cases of petition for lay- ing out roads or settling ferries. 3. Duty of the clerk of the county court to file a transcript in the superior Section court— Appeal to stand for trial at first term. 4. Appellant may procure a transcript and file it in the superior court. 5. How appellant may proceed when there is a vacancy in the office of the superior court clerk. 6. When the appellant fails to file a transcript in the superior court, the appellee may proceed and have the judgment affirmed with double costs to be paid by the appellant. 7. In cases of appeal, the clerk of the county court may issue subpoenas for witnesses. Chap. IV.] APPEALS. 61 Section 8. Defendant in actions of debt, cove- nant or assumpsit, appealing, for de- lay, to pay additional interest. 9. Plaintiff appealing and not recover- ing a greater sum in the superior court, to have no costs, but may be ordered to pay the same. 10. Bonds for appeal and for prosecut- ing the suit, to be sent up as a part of the record, and judgment maybe entered upon them. 1 1 . Appeal not to be dismissed for want of form. 12. Clerk of the superior court shall, if required, give a receipt for the trans- cript — Cause to be placed on the trial docket when. 13. Clerk of superior court to issue sub- poenas after the transcript is filed. Penalty on clerks for failing to per- form their duty in regard to ap- peals. Persons obtaining writs of recorda- ri, or false judgment, to give securi- ty as in cases of appeals. 16. Clerk of the county court to take security from persons obtaining cer- tioraris. 14. 15. Section 17. Superior courts may grant writs of error — Proceedings upon them. 18. Time within which writs of error must be brought. 19. Proviso for persons under disabili- ties. 20. Time within which writs of error for matters of fact must be brought. 21. Appeals from the superior courts to the supreme court allowed. 22. Supreme court to render judgment upon an inspection of the whole re- cord. 23. Judges of the superior courts may al- low appeals from interlocutory judg- ments. 24. The whole cause not to be removed to supreme court by the allowance of such appeal. 25. In appeals to the supreme court, the appellant must file a transcript with- in the first seven days of the term. 26. How the appellee may proceed, when the appellant fails to file the trans- cript within proper time. 27. How judgment for costs be rendered. 28. Appeals to the supreme court allow- ed in equity causes. 1. Be it enacted by the General Assembly of the State of J^orth Carolina, and it is hereby enacted by the authority of the same, That when any person, either plaintiff or defendant, or who shall Appeal allowed 1 1 11 1 V • /- 1 -1 1 • 1 from any sen- be interested, shall be dissatisned with the sentence, judgment or tence, judg- decree of any county court, he may pray an appeal from such "J.^"'i "'^ decree sentence, judgment or decree, to the superior court of law of the to the superior county wherein such county court shall be, but before obtaining ^°"5^ "P?" *^ ^ • 1 1 1 1 party's giving the same, shall enter into bond, or cause the same to be entered security, &c. into with two sufficient securities for prosecuting the same with effect, and for performing the judgment, sentence and decree, which the superior court shall pass or make therein, in case such appellant shall have the case decided against him. 2. Appeals shall likewise be granted, upon the same terms as prescribed in the preceeding section, in the following cases. 1st. When any person shall consider himself injured or ag- Appeals allow- 11 1 ^ r^i ^ i- -x' ed from orders grieved, by order or sentence oi the county court, in appointing a ^f jj^g county guardian to any orphan, or in removing any orphan from the care court, appoint- 1 ^ • ,• c 111 -Ij 1 inarorremov- and tuition ot any person who has been appointed such, or on re- j^^^ j^ g^^rdiaa. fusing to make such appointment or removal as aforesaid. 2d. When any person, who shall claim a right to execute any o]-°atrof wills will, or to administer to the estate of any intestate, shall think or granting let- himself injured by order of court for letters testamentary, or of -sJ^ation. '^'^" administration. 1. 1777, C. 115. s. 75. 2. 1762, c. 69. s. 24.— 1777, C. 115. s. 58.— 1807, C. 720.— 1809, c. 773. s. 4. 862, s. 2. -1813, c. 62 APPEALS. [Chap. IV. Also on the tri- 3d. In trials of caveats of land, and suspensions of grants of a s o caveats, i^j^^^ where either party is dissatisfied with the verdict of the jury. Also in casesof 4th. Where either is dissatisfied with the judgment of the court, mages^causedT " upon the verdict of the jury rendered upon the petition of any per- by the erection son alledging that he is injured by the erection of a public mill. ,,^ . ^*^ ^ ^' 5th. Where any person is dissatisfied with the iudsfment, sen- Also in CRSGS 01 •/ 1 */ o ' petition for tence or decree, which the court may pass or pronounce on any laying out petition filed for appointing or settling a ferry, laying out any pub- tling ferries, lic roads, or discontinuing, or altering such roads as are now, or shall hereafter be made. Duty of the 3. Whenever any appeal shall be granted from the county court clerk of the of pleas and quarter sessions, to the superior court of law, it shall ccuntv court to ■* -*■ -* file a transcript be the duty of the clerk of the county court aforesaid, to file a in the superior ^j.j^jjggj.jp^. q^ ^]^q record of the suit on which the appeal shall be Appeal to granted, on, or before the first day of the term of the next supe- stand for trial j.Jq^ court, after the same shall be granted or allowed, if there shall be ten days between the last day of the term of the said county court, and the next term of the said superior court, and the said appeal shall stand for trial at the said next term of the superior court, and if it shall so happen that there shall be less than ten days, then the said appeal shall be continued, and it shall be the duty of the clerk aforesaid to file the transcript of the record aforesaid, on or before the first day of the second term of the superior court next after the appeal granted. Appellant may 4. Nothing in the preceding section shall prevent the appellant procure a trans- fj.Qj-fj applying to the clerk of the county court for a transcript of in the superior the record, whose duty it shall be, immediately after an appeal court. ghgii ]-,Q granted, to make up a full and perfect record of all the proceedings in the cause : and within ten days after the final ad- journment of the term, in which the cause shall be heard, give an attested copy of such record, with the taxation of all costs ac- crued, to said appellant, if required ; and shall endorse on such copy the day or days on which the same may have been demand- ed, and the day on which it shall be delivered, and sign his name as clerk thereto ; and the said appellant shall file the same on or before the first day of the term of the next superior court, under the like restrictions and provisions as in the preceding section. How appellant 5. Whenever any appeal shall be had from the county court to when^there is a ^^^ Superior court of law, and a vacancy shall have happened in the vacancy in the office of clerk of Said Superior court, so that the appellant cannot perior°court ^^' fi-'® ^^® transcript of the record within the time prescribed by law, clerk. on the appellant's making it appear to the satisfaction of the court to which the said appeal shall be returnable, that he had made ap- plication to the clerk of the county court for a transcript of the record, within time to have filed the same within ten days before the sitting of the said superior court, the transcript of the record shall be filed in the said court, and the cause shall stand for trial at the succeeding term. 3. 1821, c. 1117, s. 1. 4. 1821, c. 1117, s. 5. 5. 1S16, c. 903j S. 3. Chap. IV.] appeals. 63 6. When the appellant receives from the clerk the transcript in When the ap- appeal and refuses or neglects to file the same in the superior I^Je a uanscrLt court on or before the first day of the term as required by law, or in the superior shall fail to appear and prosecute his appeal, the appellee shall be pg^/^^ *^J^P^^_ entitled to demand from the clerk a copy of the record, and, on ceed and have motion in the superior court, the judgment of the court below shall affirmedwTth be affirmed with double costs, to be paid by the appellant. double costs to 7. The clerks of the county courts shall have full power and I^ppPJ^j^^j^J ^^'° authority to issue writs of subpoena to summon witnesses in all i^ cases of ap- cases of appeals, returnable to the same term of the superior court peal the clerks of law to which such appeals shall be allowed. courts rnay issue 8. When any defendant in any action of debt, covenant, or subpfenas for assumpsit shall appeal from the judgment of any court of pleas and^^^^^^ " .^ quarter sessions to a superior court, and shall not upon the trial of actions of debt, such appeal diminish the sum recovered by the plaintiff in the covenant or as- ^i, , . •iiii^iif-ir- sumpsit, ap- court of pleas and quarter sessions, it shall and may be Jawtul tor pealing for de- the said superior court, if it appear that the appeal was taken for l^-^° ^^^ter-' the purpose of delay, to give judgment in behalf of the plaintiff, est. not only for the amount of the verdict rendered in said court, but also for a sum in addition thereto not exceeding four per centum per annum on the principal sum recovered, from the time of judg- ment in the inferior court to the time of entering up the same in the superior court, which additional sum shall be considered as a penalty, and shall not draw interest in cases where interest is allowed on judgments. 9. When any plaintiff shall appeal from the judgment of any plaintiff appeal- court of pleas and quarter sessions to a superior court, and shalP"^ ^"^ "°'' "^^^ r . -l . r ' covering a not recover m said superior court a greater sum than that recov- greater sum in ered in the court of pleas and quarter sessions, independently of '^® ^"P^'jl"'' the interest accrued since the former judgment, he shall not re- no costs, but cover the costs of the appeal, but shall be liable at the discretion ^'tJav the'^^^'^'^ of the superior court to pay the same. same. 10. The bonds taken for the prosecution of the appeal with Bonds for ap- effect shall make part of the record sent up to the superior court, prosecuting^the on which judgment may be instanter entered up against the appel- suit to be sent lant and his securities in all cases where judgment shall be ren- t^^g Record °and dered against the appellant, and in all cases of appeal from the judgment may county to the superior court, the bond given for prosecuting the them!'^'^^ "^"^^ suit shall also be made a part of the record and transmitted to the superior court. 11. No appeal shall be dismissed for want of form, if the judge Appeal not to of the superior court shall be of opinion that there appears to be ^.^ dismissed A 1 r L lor want ot sufficient matter of substance in the transcript of the record and form, proceedings, to enable him to proceed thereon. 12. The clerks of the superior courts respectively, upon receiv- Clerk of the • . r ,1 J 1 ■'i- .•' ^ . superior court ing a transcript ot tlie record and proceedings in any suit, on shall, if requir- ed, give a re- 6. 1777, c. 115, s. 77. ceipt for the 7. 1821, c. 1117, s. 2. transcript. S. 1807, c. 713, s. 1. 9. 1S07, c. 713, s. 2. — 1801, c. 574, s. 4. 10. 1785, c. 233, s. 2.— 1831, c. 46, s. 2. 11. 1777, c. 115, S. 81. 12. 1777, c. 115, s. 82.— 1821, c. 1117, S. 1. 64 APPEALS. [Chap. IV. which an appeal shall be had, whether such transcript shall be brought up by the clerk of the county court or the party ap- pellant himself, shall if required give a receipt for the same, and immediately endorse thereon the day on which it shall be dehver- ed, and if there shall be ten days between the last day of the Cause to be county court in which the appeal was granted, and the first day of f^'^^rd T' \^^ the next term of the superior courts, he shall enter it upon the when. docket of causes for trial, and if there be less than ten days be- tween the courts aforesaid, then he shall enter the cause upon the docket for the trial of causes for the ensuing term. Clerk of the 13. The clerks of the superior courts respectively, upon the superior court to ^Ijj^g. gf (jjg transcript of the records and proceedings upon an ap- issue subpoenas p r i n -r • i • i r after the trans- peal granted to then* court, shall, it required, issue subpoenas tor cript is filed, witnesses to attend at the same term, when the cause shall stand for trial. Penalty on 14. If any clerk either of the superior or county court shall fail in^'^toperfo™ *° perform any of the duties prescribed to them in any of the sec- theirduty inre-tions of this act, he shall pay a fine of forty dollars to the party gar to appea s. appg^Jing, and shall further be liable to an action on the case on behalf of any person injured by his neglect of duty. Persons obtain- ^^' ^^^^n any person shall obtain a writ of recordari facias ing writs of re- loquelam, or writ of false judgment, to remove any proceedings falseTud°ment which shall be had before a magistrate, to any of the superior to give security courts of this State, the person so applying, if the defendant below, appeals^*^^ ^^^^^^ be required to give bond with good and sufficient security for the payment of judgment and costs, which may be recovered against such person in the superior court ; which bond shall be transmit- ted by the said magistrate with the writ and other papers to the court to which they are returnable, and the magistrate, before whom the cause was tried, is hereby authorized and required to take such security in the same manner as security is taken on ap- peals to the county court. Clerk of county 16. In all cases where writs of certiorari are directed to the security from ^ouiity court, the clei'k of the court is hereby required to take persons obtain- Security in the same manner and under the same regulations that mg certiorans. gegm-j^y jg taken on appeals from the county to the superior courts. Superior courts 1^- The superior courts shall have power and authority to grant may grant writs writs of crror for Correcting the errors of any inferior court, and Pro^c?edings ^^^ party praying such writ, before the same shall issue, shall assign upon them. error and give bond and security to the satisfaction of the court to abide by, perform and fulfil the judgment which shall be given therein by such court ; and if upon argument of any writ of error or trial of any appeal from any inferior court, the judgment or de- cree of the inferior court shall be reversed, the superior court shall grant judgment or make such decree thereupon as should have been made up or entered in such inferior court, and shall and 13. 1777, c. 11.5, s. 82. 14. 1821, c. 1117, s. 3. 15. 1610, c. 793, s. 1. 16. ISIO, c. 793, s. 2. 17. 1777, C. 115, S. 47. Chap. IV.]. appeals. 65 may issue execution thereupon without granting a writ of proce- dendo : 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, brought or presented. Time within upon any judgment rendered in any of the county courts of this ^^^p mustW State, but within five years next after the entering such judgment brought. and not after. 19. If any person or persons who is, are, or shall be entitled Proviso for per- to prosecute a writ of error, be, or shall be, at the time of his or abUities*^^'^ *^^^" their right to bring such writ of error, non compos mentis, impri- soned or beyond the seas, then such person or persons shall be at liberty to bring a writ of error, so as they bring the same within two years after their being of sound memory, at large, returned from beyond the seas, or of age, as other persons having no such impediment might have done. 20. No writ of error for any matter of fact shall be allowed, Timewithin brought or prosecuted, upon any judgm.ent rendered in any of the error foTmat° courts of this State, but within five years next after rendering such ^^^^ of fact judgment and not after. brought. 21. No cause shall be transmitted to the supreme court from Appeals from the superior court of law, but on appeal of one of the parties ^^ TT^lh thereunto from the sentence, judgment or decree of the said su- supreme court perior court ; and such appeal may take place in any cause either ^llows'i- civil or criminal, on giving bond and adequate security to abide the sentence, judgment, or decree of the supreme court, and such bonds may be proceeded on, in the same manner, as in the case of appeals from a county court to a superior court. 22. Appeals shall be allowed from any final judgment, sentence Supreme court or decree of the superior court, and in every case of such appeal J^Jj^t^p^^"^^' the supreme court may render such sentence, judgment or decree inspection of as, on the inspection 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 upon any proper process. 23. The judges of the superior courts may, whenever it shall Judges of the seem to them necessary or proper, allow an appeal to the su- ^ly™{^^°^^^ preme court from any interlocutory judgment at law, at the motion peals from in- of the party supposing himself aggrieved thereby, upon suchjud°,'iJ;'g°[J_ terms as the said judges shall deem it just and equitable to pre- scribe ; and when such appeal shall be allowed, the judge allowing the same shall and may direct so much only of the records and proceedings in the cause to be certified to the supreme court, -as he shall think necessary to present the question or matter arising upon such appeal fully to be considered by the said court. 18. 1801, c. 590, s. 1. 19. 1801, c. 590, s. 2. 20. 1823, c. 4, s. 1. 21. 1818, c. 962, s. 4. 22. 1318, c. 962, s.4. 23. 1S31, c. 34, s. K VOL. I. 9 66 • APPEALS. [Chap. IV. * The whole 24. The allowance of an appeal upon such interlocutory judg- removed\o'the^^^'^t' ^"^ ^^^^ Carrying the same up by the appellant, shall not be supreme court deemed in law to remove the record of the cause into the supreme ance of such court, but the samc shall be deemed in law to remain in the court appeal. whence the appeal was taken ; and the said court shall have power, notwithstanding such appeal, to make all necessary orders for pre- paring the cause for trial as fully as if the said appeal had not been taken. In appeals to 25. In all cases of appeal to the supreme court it shall be the the supreme ^^^y ^f ^]^g appellant to file a transcript of the record of the cause, court the a.p- *^ , ^ ^ , ^ pellant must together with the bond given for the appeal, on or before the Ble a transcript ggygj^^jj (j^y Qf ^]^q ^g^jj^ ^^g^t ensuing said appeal ; and the su- seven days of preme court may render judgment against the securities for an ap- the time. peal, in the same manner as a superior court may on appeal from the county court. How the ap- ^6. If the appellant shall fail to file the transcript and bond pellee may pro- aforesaid, as is above directed, it shall be lawful for the appellee, appellant fails either to file the same at any time during that or the next succeed- to file the tran- ing term, or to obtain a certificate from the clerk of the supreme proper term^.'^ court, under the seal of the court, of such failure, which certifi- cate of such failure on the part of the appellant, he shall file in the office of the clerk of the court from which the appeal was prayed, and it shall be the duty of the said last mentioned clerk to record the said certificate, and thereupon issue execution, or any otlier proper process on the judgment rendered in the superior court, as though no appeal had been prayed, taxing double costs against the appellant. How judgment 27. In all cases of appeal to the supreme court they may ren- rendered. ° ^ der judgment against the appellant or appellee for costs, as in ap- peals from the county to the superior court and award execution there for> Appeals to the 28. Appeals shall and may be allowed from the final sentence, ^"P''eme court judgment or decree, or from any interlocutory order, judgment, or equity causes, decree of the superior court of equity, to the supreme court, upon the same terms and under the same rules, regulations and provisions and restrictions, as in cases of appeals from the superior court of law to the supreme court. 24. 1831, c. 34, s. 2. 25. 1818, c. 963, s. 6.— 1824. C.1234,s.. 1. 26. 1818, c. 963, s. 7. 27. 1831, c. 34, s. 4.— Amended. 28. IS19,C. 963, s. 4.— 1831, c. 34, s. 1, /^^2-^ cL/.^i'^ Note. — References to Adjudged Cases. Sect. 1. Cooke iJs. Little, 1 Hay, 19. Newnan t's. Ne%vTiam, 1 Murph. 178. State vs. Jones, 1 Murph. 257. McGimjjsay vs Vail, 1 Murph. 408. Gibson vs. Linch, 1 Murph. 495. Forsyth rs. McCormick, 2 Car. Repos., 472. Hunt »s. Crowell, 2 Murph. 424. State vs. Jackson, 3 Murph. 230. Ott vs. McBryde, 3 Murph. 235. Sharp vs. Jones, 3 Murph. 306. Smith vs. Neal, 2 Hawks, 14. McCullock vs. Tyson, 2 Hawks, 336. Medford vs. Harrell, 3 Hawks, 41. State vs. Cherry, 2 Dev. 250. Hicks vs. Gilliam, 4 Dev. 217. Sect. 2. Horton vs. Hortoa, 3 Dev. 441. Pratt »s Kitrell, 4 Dev. 168. Blunt vs. Moore, 1 Dev. and Bat. 10. Chap. V.] APPRENTICES. 67 Sect. 6. Anon, 1 Hay, 171. Sect. 9. Kinchin vs. Brickell, 2 Hay, 49. Sect. 10. Yarborough rs. Giles, 1 Hay, 4.5.3. Wilson to. Murchison, 2 Dev. 491. Sect. 21. State ds. Robinson, 1 Hawks, 18S. State vs. Saunders, 1 Hawks, 3.55. Cherry vs. Slade, 2 Hawks, 400. State Bank vs. Twitty, 2 Dev. 386. State vs. Os- borne, 1 Dev. and Bat. 114. Sect. 22. Pike vs. Armstead, 2 Dev. Eq., 24. Sect. 25. State vs. Dickinson, 1 Dev. and Bat. 349. Sect. 26. Mannings. Sawyer, 1 Hawks, 33. CHAPTER 5. APPRENTICES AN ACT CONCERNING APPRENTICES. Section U County courts to bind out orphan, children — What orphans to be bound out. 2 To what persons, and for what time orphans to be bound. 3. Duty of mEister or mistress of orphan apprentices. 4. The bmding to be by indenture — Remedy for the apprentice upon the deed of indenture. 5. In what cases county courts may bind out free children of color. Section 6. To whom free children of color are to be bound, and for what time. 7. Master or mistress of children of color to give bond not to remove them out of the county. Proviso for sea-faring persons. 8. Remedy for the master or mistress of apprentices who absent them- selves from their service after ar- riving at the age of eighteen years. 9. Penalty for harboring orphan children without having them bound out. 1. Be if enacted by the General Assembly of the State of J^orth Carolina, and it is hereby enacted by the authority of the same, That the several courts of pleas and quarter sessions shall have ^"^.^^^^ courts full power and authority, and it shall be their duty, to bind out, as phan children, apprentices, all orphans whose estates are of so small value that no person will educate and maintain him or her for the profits thereof ; also all children under age whose fathers have deserted their fami- ^brbound '^^ lies, and have been absent for the term of one year, leaving them out. without sufficient support, or where application may be made to the wardens of the poor for rehef, and the said wardens shall cer- tify 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 children to remain with the mother ; also all free base born children. 2. Every such apprentice shall be bound to some tradesman. To what per- merchant, mariner, or other person approved by the court, until ^Xat time or- phans to be bound. 1. 1762, c. 69, s. 19.- 2. 1762, c. 69, s. 19. -1796, c. 468, s. 1.— 1800, c. 567. 68 APPRENTICES. [ChAP. V. he shall attain the age of twentyone years, and every female to some suitable employment till her age of eighteen years. Duty of mas- 3. The master or mistress of every such apprentice shall find ter or mistress ^j^^j provide for him or her, diet, clothes, lodeiins:, and accommo- of orphan ap- , . ^ ,. , i i n i i i • i prentices. dations lit and necessary, and snail teach and cause him or ner to be taught to read and write, and at the expiration of his or her ap- prenticeship, shall pay to such apprentice six dollars, and furnish him with a new suit of clothes and a new bible ; and if upon com- plaint made to the court of pleas and quarter sessions, it shall ap- pear that any such apprentice is ill used or not taught the trade, pro- fession and employment to which he or she was bound, it shall be lawful for such court to remove and bind him or her to such other psrson or persons as they shall think fit. The binding to 4. The binding of such apprentice by order of the court as ture^ ^^ ' aforesaid, shall be by indenture, made in the name of the chairman of the county court of the one part, and of the master or mistress to whom he or she shall be bound, of the other part ; which in- denture shall be acknowledged or proved before such court and recorded, and a counterpait thereof shall remain and be kept in Remedy for ^^^® clerk's ofRce for the benefit of the apprentice ; and any person the apprentice or persons injured may and shall, at his or her cost and charges, oFTndenturT pi'osecute a suit thereon in the name of the chairman as aforesaid and his successors, and recover all damages which he or she may have sustained by reason of the breach of the covenants therein contained, and if any verdict or judgment shall pass for such master or mistress, he or she shall recover costs. T T. t oo»o 5. The court of pleas and quarter sessions shall likewise have In what cases i • i n i- i • i county courts power, where it shall appear expedient, to bind out as apprentices may bind out „j| jp^.gg ^^^gg j^^j^^j children of color, and all the children of free Iree children oi ' • , i i i -i color. negroes and mulattoes where the parents with whom such chil- dren may live, do or shall not habitually employ his or her time in some honest, industrious occupation. To whom free 6. All apprentices of color shall be bound to the Same persons color are to be ^^^ employments, and under the same terms and conditions, rules bound, and for and regulations, as before prescribed for the apprentices, only that for what time, ^j^^ females as well as the males shall be bound until they attain the age of twentyone years, and further it shall not be incumbent upon the master of a colored apprentice to teach him or her to read and write. Master or mis- 7. When any court of pleas and quarter sessions shall bind any tress of child- orphan, base born, or other child of color, they shall take bond give bond not to with Sufficient security in the sum of five hundred dollars, payable remove them ^q ^he State of North Carolina from the master or mistress, ly. that they shall not remove such child out of the county where he or she is bound and to produce him or her before such court, at any time when the said court may require it ; and also to produce such person at the expiration of the term of his or her service ; 3. 1762, c. 69, s. 19. 4. 1762, c. 69, s. 20. .'5. 1762, c. 69, s. 19.— 1826, c. 21, S. 7. 6. 1762, c. 62, s. 19. 7. 1801, c. 583, s. 1 and 3. Chap. V.] apprentices. 69 and on failure thereof, the county sohcltor shall and he is hereby required to bring suit against such persons on said bond, for the' benefit and use of the person bound to serve as aforesaid; ^^o- p^^^^.^ . vided, nevertheless., that nothing herein contained shall subject any faring persons, seafaring person to the penalties herein mentioned, to whom any person shall be bound in pursuance of this act, if he can make It appear that the person bound to him died on a voyage without the limits of the comity, or deserted from his service, so that he could not again procure him for the purpose of complying with the condition of the bond. 8. If any apprentice, whether colored or otherwise, who shall Remedy for the be well used by his master and who shall have received from his i^^s^s o'f appren- said master not less than six months schooling, shall absent himself tices -wbo ab- after arriving to the age of eighteen years from his master's ser- from^heir seT^ vice, before the term of his apprenticeship shall have expired, yice after arriv- every such apprentice shall at any time or times thereafter, when- o"f^eighte^en^^ ever he shall be found, be compelled to make satisfaction to the years, master for the loss he shall have sustained by his absence from his service before the time of his contract shall be fulfilled : and in case any apprentice shall refuse to make such satisfaction to his master, such master may recover by warrant issued and returnable before any justice of the peace, such satisfaction not exceeding sixty dollars, as such justice may determine shah be made to such master by such apprentice ; or such master may maintain his ac- tion on the case against such apprentice and recover his damages as a jury may award in any court having cognizance thereof : Pro- vided, that the judgment of any justice upon a trial under this sec- tion, shall be subject to the same rights of appeal or stay of execution as in other cases of judgment by justices of the peace ; Provided, also, that no apprentice shall be compelled to make any satisfaction to any master after the expiration of seven years next after the end of the term for which such apprentice shall have con- tracted or shall be bound to serve. 9. It shall not be lawful for any housekeeper to harbor and Penalty for conceal or hire any orphan child or children, without first obtain- phan°cliifdren ing leave of some justice of the peace, under the penalty of ten without having dollars, onehalf to the informer and the other half to the poor of ^^ the county ; and such justice, on granting permission, shall compel the person requiring the same to bring the said orphan child to the next county court, which is hereby required to bind such orphan children, agreeable to law. 8. 1812, c. 840. 9. 1734, c. 213, s. 5. Note — -References to Adjudged Cases. Sect. 4. Anon. Hay. 144. Dowd vs. Davis 4, Dev. 61. Mordlin vs. Maurice, 2 Dev. and Bat. 70 , ATTACHMENT. Arms. -/^<.^. 7 ^2i_ a ^AuVsun^.i^if^'r,^' Ck J [Chap. VL CHAPTER 6. ATTACHMENT. Attachment may issue against a debt- or absconding or concealing himself, so that the ordina- ry process of law cannot be served upon him. AN ACT AUTHORIZING ATTACHMENTS TO ISSUE FOR THE RECOV- ERY OP DEBTS, AND DIRECTING THE PROCEEDINGS THEREON. Section 1 . Attachment may issue against a debt- or absconding or concealing him- self, so that the ordinary process of law cannot be served upon him. 2. May also issue in favor of a citizen of this State, against a non-resident. 3. Plaintiff before attachment issues to give a bond, which together with the affidavit, must be returned to court. 4. Form of the attachment — Form of the bond. 5. Proceedings on attachments and a- gainst garnishees. 6. When a garnishee denies that he has any property, 5lc. an issue may be made up. 7. Proceedings where an attachment is levied upon property claimed by another person. 8. Specific articles confessed by a gar- nishee shall be valued by a jury and judgment given for value — In what cases garnishee may exone- rate himself by delivery of the ar- ticles. 9. When money or specific articles due or deliverable at a future time, con- ditional judgment to be entered. 11. 12. Section 10. Persons entering themselves as spe- cial bail on replevying property how far bound. Advertisement to be made. When judicial process may issue. 13. Attachments in cases cognizable by ajustice of the peace — Proceedings thereon. 14. How garnishees to be summoned, and proceedings against them. 15. How property attached may be re- plevied. 16. Specific articles confessed by a gar- nishee, how to be valued — Judg- ment to be given for the value — How, and when garnishee may ex- onerate liimself by the delivery of specific articles — Garnishee may have stay of execution. 17. Attachment to be stayed thirty da3's. 18. Persons entering themselves as spe- cial bail on replevying property, how far liable. When justice to direct advertise- ment to be made, and how long. V/hen real estate is attached and condemned by a justice, the pro- ceedinajs must be returned to court. 19. 20. 1. Be it enacted by the General Assembly of the State of J^orth Carolina^ and it is hereby enacted by the authority of the same, That upon any complaint being made on oath to any of the judges of the supreme or superior courts or to any justice of any of the county courts, by any person, his attorney, agent or factor, that any person, (indebted to him) hath removed or is removing him- self out of the county privately, or so absents or conceals himself that the ordinary process of law cannot be served on such debtor, and if such plaintiff, his attorney, agent or factor further swears to the amount of his debt or demand, to the best of his knowledge and behef, it shall be lawful for such judge or justice, and he is 1. 1777, c. 115, s. 25 and 27. Chap. VI.] attachment. 71 hereby empowered and required to grant an attachment against the estate of such debtor, wherever the same may be found, or in the hands of any person or persons indebted to, or having any of the effects of the defendant, or so much thereof as shall be of value sufficient to satisfy the debt or demand, and costs of such com- plaint, which attachment shall be returned to the court where the suit is cognizable, and shall be deemed the leading process in such action, and the same proceedings shall be had thereon as on judicial attachments. 2. When a person, who shall be an inhabitant of any other go- May also issue vernment, so that he cannot be personally served with process, i"? pvor of a shall be indebted to any person, a resident of this State, and hath state against a any estate within the same, any of the said judges or justices may non-resident. grant an attachment against the estate of such foreign person under the rules, restrictions and regulations before mentioned, and the same proceedings may be had thereon. 3. Every judge or justice, before granting an attachment, shall Plaintiff before take bond and security of the party for whom the same shall begyg^j^'^t™^"^^!^ issued, his attorney, agent or factor, payable to the defendant in bond, which to- double the sum for which the complaint shall be made, condition- f^jj^vu must ^ ed for satisfying all costs which shall be awarded to such defend- he returned to ant, in case the plaintiff shall be cast in the suit, and also all'^°"'^' damages which shall be recovered of the plaintiff in any suit or suits 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 re- turned, by the justice taking the same, to the court to which the at- tachment 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, (viz.) The State of North Carolina, Form of the at- To the sheriff of county, greeting : tachmeat. Whereas A. B. (or A. B. attorney, agent or factor as the case may be of C. D.) hath com- plained on oath to esquire, one of the judges of the supreme or superior courts of law, or one of the justices of the county court of that E. F. is justly indebted to him (or to the said A. B.) the amount of and oath having been also made that the said E. F. hath removed or is about to remove himself out of your county, or so absconds or conceals himself that the ordinary process of law cannot be served on him, (or is an inhabitant of another government, if the case is so,) and the said having given bond and security according to the directions of the act of the General Assembly in such cases made and provided : We therefore com- mand you that you attach the estate of the said E. F. if to be found in your county, or so much thereof repleviable on security 2. 1777, c. 115, s. 27. 3. 1777, c. 11.5, s. 26. 4. 1777, c. 11.5, s. 31 and 32. 72 ATTACHMENT. [ChAP. VI. as shall be of value sufficient to satisfy the said debt and costs ac- cording to the complaint, and such estate so attached in your hands to secure, or so to provide that the same may be hable to further proceedings thereupon to be had at the court to be held for of at on the day of next, so as to compel the said E. F. to appear and answer the above complaint of the said when and where you shall make known to the said court how you shall have executed this writ. Witness esquire, judge or justice of the said court at the day of in the year of American Independence. And the said attachment shall be signed and sealed by the judge or justice granting the same. The bond to be given upon obtaining such attachment shall be as follows (to wit :) bond. Know all men by these presents that we all of the county of are held and firmly bound unto in the sum of to be paid to the said his certain attorney, executor, administrator, or assigns, for which payment well and truly to be made, we bind ourselves and each of us, our and each of our heirs, executors and administrators, jointly and severally, firmly by these presents, sealed with our seals and dated the day of . The condi- tion of the above obligation is such that whereas the above boun- den hath the day of the date hereof prayed an attachment at the suit of against the estate of the above named for the sum of and hath obtained the same returnable to the court to be held at on the day of next ; now if the said shall prosecute his said suit with effect, or in case he fail therein, shall well and truly pay and satisfy to the said all such costs and damages as shall be awarded and recovered against the said his heirs, executors, or administra- tors in any suit or suits which may be hereafter brought for wrong- fully suing out the said attachment, then the above obligation to be void, otherwise to remain in full force and effect. Provided that no attachment shall be abated for want of form if the essential mat- ters expressed in the foregoing precedent be set forth in such at- tachment. Proceedings on 5. When any goods or other estate shall be attached by vir- and against ' tue of any attachment, whether judicial or original, it shall and garnishees. lyjay i,q lawful for the defendant, his or her attorney, agent or fac- tor to replevy the same by giving bond with sufficient security to the sheriff or other officer serving such attachment, which said bond the sheriff or other officer is hereby empowered and required to take, to appear at the court to which such attachment is returnable and to abide by, perform and satisfy the order and judgment of such court ; and the security in said bond shall have all the pow- 5. 1777, c, 115, s. 23. Chap. VI.] attachment. 73 ers and be subject to all the liabilities, except as hereinafter pro- vided, of special bail in other civil cases, and when the estate at- tached shall, by three justices of the county court to be summon- ed by the sheriff for that purpose, be certified on oath to be perishable, and the person or persons to whom it belongs, his, her or their attorney, agent or factor shall not within sixty 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, he having 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 such sale shall be liable to the judgment obtained up- on such attachment and deposited in the hands of the clerk of the court to which the process shall be returnable, there to wait the event of such judgment ; and where the sheriff or other officer shall serve an attachment in the hands of any person or persons, supposed to be indebted to, or supposed to have any of the effects of the party absconding or residing out of the State, he shall at the time summon such person or persons as a garnishee or garni- shees in writing, to appear at the court to which the attachment shall be returnable within the first four days of the first term there- of, there to ansv.^er upon oath what he or she is indebted to the defendant, and what effects of the defendant he or she hath in his or her hands and had at the time of serving such attachment, and what effects or debts of the defendant there are in the hands of any other and what person to his or her knowledge and belief; and when any attachment shall be served in the hands of any gar- nishee in manner aforesaid, it shall be lawful upon his or her ap- pearance and examination to enter up judgment and award execu- tion against any such garnishee, for all sums of money due to the defendant from him or her and for all effects and estate- of any kind belonging to the defendant in his or her possession or custo- dy, for the use of the plaintiff, or so much thereof as shall be suf- ficient to satisfy the debt and costs, and all charges incident in le- vying the same, and all goods and effects whatsoever in the hands of any garnishee or garnishees belonging to any defendant shall be liable to satisfy the plaintiff's judgment, and shall be delivered to the sheriff' or other officer serving the attachment ; and when any garnishee shall be returned by the sheriff" or other officer summoned in manner aforesaid and shall fail to appear and discover on oath, as above directed, it shall be lawful for the court, after solemnly calhng the garnishee, and such court is hereby authorized and re- quired to enter a conditional judgment againt such garnishee, and upon such judgment so entered a scire facias shaW issue against, such garnishee, returnable to the next term, to show cause if any he hath, why final judgment should not be entered against him, and upon such scire facias being duly executed and returned, if such garnishee shall fail to appear at the next term and discover on oath in manner aforesaid, the court shall confirm such judg- ment and award execution for the plaintiff's whole judgment and costs ; and if upon examination of any garnishee it shall appear to the court that there is any of the defendant's estate in the hands of VOL. I. 10 74 ATTACHMENT. [ChAP. VI. any person or persons, who have not been summoned, such court shall upon motion of the plaintiffs grant a judicial attachment to be levied in the hands of such person or persons, having any of the estate of the defendant in his, her, or their custody or possession, who shall appear and answer, and shall be liable as other garni- shees. When a garni- 6. When any garnishee shall be called into court and in his or he^hasTnypro-^®^ garnishment shall deny that he or she owes to or has in his or perty, c&c. an her hands any property of the defendant, and the party plaintiff in made up^ ^^ ^^'^^^ attachment shall on oath suggest to the court that such garni- shee owes to or has property in his or her hands belonging to the defendant, or when any garnishee shall in his or her garnishment make such a statement of facts that the court before whom such garnishment shall be made cannot proceed to give judgment there- on, then in either of these cases the court shall order an issue to be made up, which shall be tried by a jury, and the court shall give judgment on their verdict as in other cases. Proceedings 7. When any person shall sue out an attachment, and the same where an at- gj^jj]] j^g levied on property which shall be claimed by any other t3.cnni8iit IS 1 J. •/ J J levied upon porson, such claimant shall be at liberty to interplead, first giving Pj°vP®^^y 'rlf^"^' security for such costs and damages as may be awarded against person, him, and shall at the same time file a petition in writing, setting forth the particular property claimed and by what right or title he ejaims the same, a copy of which petition shall be served on the party suing out such attachment, at least ten days before the next court, and at the court to which the return of such petition shall be made, the court shall order a jury to be empanelled to inquire in whom the property is of such article or property as may be so levied upon, and the finding of such jury shall be conclusive as to the parties then in court, and the court shall adjudge accord- ingly. Specific articles 8. Whenever any garnishee shall on oath confess that he or she garnishee s^aU ^as in his or her hands any property of the defendant of a specific be valued by a nature, or is indebted to such defendant by any security or assump- ment givenfof' tion for the delivery of any specific article, (except as herein- the value. after excepted,) then in either of these cases, the court, before whom such garnishment shall be made, shall immediately order a jury to be empanelled and sworn to enquire of the value of such specific property, and the verdict of such jury shall subject such garnishee to the payment of such valuation or so much thereof as shall be sufficient to satisfy the debt or damages and costs of the party at whose instance such garnishee shall have been summoned In what cases — Provided, that if such garnishee shall also state in his garnish- exonerate him^ ment that the said specific property was left or deposited in his self by delivery or her possossion by the defendant as a bailment, or shall state in o t eartices. j^j^ garnishment that he hath tendered the said specific articles, agreeably to contract, and that they were refused by the defendant, and that he then was and always had been ready to deliver the same, or that he had such specific articles at the time and place 6. 1793, c. 389, s. 2. 7. 1793, c. 389, s. 3. 8. 1793, C. 389, S. 1.— 1794, C. 424, S. 1. I Chap. VL] attachment. 75 specified in such covenant or agreement ready to be delivered, and that he was still ready to dehver the same, and when such garnish- ment shall be admitted by the plaintiff or found by a jury, then in any of such cases such garnishee shall and may be exonerated by the delivery of such specific articles to the sheriff, who levied the attachment, who sliall proceed as if the attachment had been origi- nally levied on such article or articles. 9. When any garnishee shall declare on his garnishment that the Wheremoneyor money or specific article due by him or her will become payable aredue orddiv- or deliverable at a future day, and the same shall be admitted by erable at a fu- the plaintiff or found by a jury, then and in such case conditional ditfonaMudee- judgment shall be entered against such garnishee, and the plaintiff ment to be en- may proceed to ascertain his demand by judgment against the de- ^^ ■*^'-°" fendant, but shall not take final judgment against such garnishee without notice by scire facias on which the plaintiff may proceed as in other cases. 10. The person or persons, entering themselves as special hail J'"'®°"^, ^"^^'^■ on replevying property attached, shall only be held liable to answer selves as spe- the value of the property which he, she, or they as aforesaid do ^f^ ^?'^ °" '■^' 1 1 »/ , -' , *^ pJevyinGf pro- respectively hold or have returned in the garnishment and no more, perty how lar but the security replevying shall not avail themselves of paying the"°"'^^- value of the property so replevied, unless such security shall at the return term move the court to empanel a jury to ascertain such value by inquiry, which inquiry the court shall have executed on motion made as aforesaid, notice being given to the plaintiff in attachment, his agent or attorney, at least five days before such motion shall be made. 11. When any original or judicial attachment shall be returnedAdvertisement to any court, as levied upon the goods and chattels, lands and '° e ma e. tenements of any person or persons residing without the county in which such attachment has been issued, it shall be the duty of the clerk of such court to cause the same by public advertisement to be made known for six weeks (and longer if the court shall direct) next after the return made as aforesaid, and, until the said six weeks shall have expired, it shall not be lawful for such court to suffer any final judgment to be entered upon any such attachment, and the costs of such advertisement shall be taxed by the clerk in the bill of costs and be paid by the person liable to pay the other costs. 12. No judicial process shall be issued against the estate of any Where judicial person residing without the limits of this State, unless such process sue!"^ "^^^ ^^' is grounded on an original attachment, or unless the leading pro- cess in the suit has been executed on the person of the defendant Avhen within the State. 13. In cases whereby law a justice of the peace has jurisdic- Attachments in tion, on complaint being made on oath by any person or persons bk bVa^s^Ut^e his or their agent, attorney or factor, that any person hath re-of the peace. moved, or is removing him or herself out of the country privately, ^emm."^^^ 9. 1794, c. 424, s. 2. 10. 1793, c. 3S9, s. 5. 11. 1793, c. 389, s. 6—1825, c. 1297—1819, c. 995, S. 1. 12. 1793, c. 389, s. 4. 13.1777,0.115,5.66. 1794,0.414,6.7. 76 ATTACHMENT. " ' [ChAP. VI. or SO absconds or conceals him or herself that the ordinary pro- cess of law cannot be served on such debtor, or that such debtor is an inhabitant of another government, and if such plaintiff his, her or their agent, attorney or factor, further maketh oath to the amount of hisj her or their debt or demand to the best of his, her or their knowledge and behef, it shall and may be lawful for any justice of the peace and he is hereby empowered and required to grant an attachment against the estate of such debtor, wherever the same may be found in his county or in the hands of any persoir' or persons indebted to or having any of the effects of the .defendant, or so much thereof as shall be of value sufficient to sat- isfy the debt or demand and costs of such complaint, which at- tachment shall be returnable before some justice of the peace on or before thirty days after the date thereof to be proceeded on :as hereafter directed. Provided always^ that every such justice, before granting such attachment, shall take bond with sufficient security of the party for whom the same shall be issued, his, her or their agent, attorney or factor, payable to the defendant in dou- ble the sum for which the complaint shall be made, conditioned to satisfy all costs which shall be awarded to such defendant in case the plaintiff shall be cast, and also all damages which may be re- covered against the plaintiff in any suit or suits which may be brought against him or her for wrongfully suing out such attach- ment ; which bond, together with the aJSdavit of the party com- plaining subscribed with his or her proper name, shall be filed by the justice who shall try the cause with the attachment and other papers relative thereto, and the proceedings thereon shall be had in a summary way, in the same manner as on warrants ; and the ■ defendant may replevy the property so attached, by giving bond and security to the officer serving such attachment, conditioned to appear before some justice of the peace, to abide by and perform the order or judgment that shall be made thereon. How garnishees 14. When the sheriff, constable, or other officer, shall serve an ed^ancTOTweed- ^^^^"^-^®^'' ^^ ^^^® hands of any person or persons, supposed to be ingsagainst indebted to, or supposed to have any of the effects of the party or parties absconding or residing out of the State, he shall at the same time summon such person as garnishee in writing to appear before the justice, before whom the attachment shall be returned, there to answer on oath relative to what he or she is indebted to the defendant, and what effects of the defendant he or she hath in his or her hands and had at the time of serving such attachment, and what effects or debts of the defendant there are in the hands of any other person, and what person to his or their knowledge or belief. And when any attachment shall be served in the hands of any garnishee in manner aforesaid, it shall be lawful upon his, her or their appearance and examination to enter up judgment and award execution against such garnishee for all sums of money due to the defendant from him or her, and for all the effects or estate of any kind belonging to the defendant in his or her possession or custody, for the use of the plaintiff, or so much thereof as shall be 14. 1794, c. 414, s. 8, 9 and 10. them. Chap. VI.] attachment. • 77 sufficient to satisfy the debt and costs and all charges incident to levying and securing the same ; and all the goods and effects what- soever in the hands of any garnishee or garnishees, belonging to any defendant, shall be hable to satisfy the plaintiff's judgment, and shall be delivered to the sheriff or other officer serving the attachment ; and when any garnishee, summoned as aforesaid, shall not appear and discover on oath as by law directed, it shall be lawful for the justice to issue a notice in writing for the said garnishee to appear at such place and on such day as he may appoint, to shew cause why judgment shall not be entered, and execution awarded against him, which notice shall be served by the sheriff, constable or other officer, and upon such notice being duly executed and returned, if the garnishee shall fail to appear and discover upon oath in manner aforesaid, the justice shall give judgment against such garnishee for the plaintiff's full demand with costs, and award execution accordingly. When any property attached as aforesaid shall be claimed by any other person or persons, and to determine the right the intervention of a jury may be necessary, the party claiming such property may appeal to the next county court, where such right upon an issue joined shall be tried by a jury of good and lawful men ; the party claiming first giving bond with sufficient security to pay all costs and charges in case he, she or they shall fail to prosecute the said suit with effect ; and the verdict of the jury in such case shall be conclusive as to the parties then in court, and the court shall give judgment accord- ingly. When any garnishee shall on his or her garnishment deny that he or she has in his or her possession any property of the defendants, and the plaintiff in such attachment shall on affidavit suggest to the justice that such garnishee owes to or has property in his or her hands belonging to the defendant, or when any gar- nishee shall on his or her garnishment make such a statement of facts that the justice before whom such garnishment shall be made cannot proceed to give judgment thereon, then in either of these cases, the justice shall return the attachment and other papers to the next county court to be held for his county, and the court shall order an issue or issues to be made up and tried by a jury, and the court shall give judgment on the verdict of the jury as in other cases. 15. When any goods or other estate shall be attached by virtue How property of any attachment issued agreeably to the directions of the two attached may preceding sections of this act, it shall and may be lawful for the ° ""^P ® ^ defendant or defendants, his, her or their attorney, agent, or factor, to replevy the same by giving bond with sufficient security to the sheriff, constable or other officer serving such attachment ; which said bond the sheriff, constable or other officer is hereby empow- ered and requir(;d to take to appear before the justice to whom such attachment is returnable, and to abide by, perform and satisfy the order and judgment of such justice ; and when the estate attached shall, by three freeholders of the county, to be summoned by the sheriff, constable, or other officer for that purpose, be 15. 1794, c. 414, S. 11. T8 • ATTACHMENT. [ChAP. VI. certified on oath to be perishable, and the person or persons to whom it belongs his, her or their attorney, agent or factor, shall not within thirty days after the serving such attachment, replevy the same, then such estate shall be sold at public vendue by the sheriff, constable or other officer ; he having first advertised such sale at the court house and other public places in the county at least ten days before the sale. And the money arising from such sale, shall be liable to the judgment obtained upon such attach- ment and shall be retained and kept by the officer to wait the event of such judgment. Specific articles iQ, Whenever any garnishee shall on oath confess that he or garnishee how she has in his or her hands any property of the defendant of a to be valued— specific nature, or is indebted to the defendant by a security or given for the assumption, for the payment or delivery of tobacco or other spe- vaiue. cific articles, then in either of those cases, the justice, before whom such garnishment shall be made, shall immediately order three freeholders to be sworn to enquire of the value of such spe- cific property, and their verdict shall subject such garnishee to the payment of such valuation, or so miuch thereof as shall be suffi- cient to satisfy the debt and costs of the party at whose instance such garnishee shall have been summoned. Provided always, How and when That such garnishee, who may on oath confess that he or she has garnishee may in his or her hands any specific property of the defendant, as left Snrynhe d™ ^^ deposited in his or her possession, by such defendant, may al- livery of specif- ways exonerate him or herself by delivering such property to the ic ar ic es. sheriff, constable or other officer who levied such attachment or Garnishee may^^nay levy the execution issued thereon. Provided always, That havestayofex- when judgment shall be entered up against any garnishee, declar- ing as aforesaid, he shall on giving security if required, have the same stay of execution as such garnishee would have been enti- tled to, had he been original defendant in the suit. Attachment to 17. In all suits commenced by attachment as herein directed, ty day^! ^^ which shall be returnable before a justice of the peace, the justice to whom such attachment shall be returned, shall stay all proceed- ings thereon, for the space of thirty days, unless the defendant to such suit by attachment, his agent or attorney shall replevy the goods, chattels, or property so attached. Persons enter- 18. The person or persons, entering themselves as special bail ing themselves on replevying property attached, shall only be held liable to an- on replevying swer the value of the property which he, she or they as aforesaid property how Jq respectively hold or have returned in the garnishment, and no more ; but the security replevying shall not avail themselves of paying the value of the property so replevied, unless such secu- rity shall on the return of such attachment to the justice, require that such value should be ascertained by an inquiry, which inquiry the justice shall have executed on request as aforesaid, by three freeholders, by him summoned to assess and value such property on oath, notice being given to the plaintiff in attachment, his 16. 1794,0. 414, s. 12. 17. 1794, c. 414, s. 13. 18. 1794, c. 414, s. 14. Chap. VII.] ATTORNEY GENERAL, ETC. 79 agent or attorney, at least five days before such inquiry shall be executed. 19. When any attachment, issued asreeablv to this act, shall be'jy'^^J"^^!^?^© y ' \~> J -' Qircct ciciv6rtis6- returned to any justice of this State as levied on the goods and ment to be chattels, lands and tenements of any person or persons, resid- ™^^^' '^'^'^ ^°^ ing without the county in which such attachment is issued, it shall be the duty of the justice to direct advertisements of the same for the space of thirty days. 20. When the constable, or other lawful officer, shall attach any When real es- , . iiir ••ri t3-te IS attached real estate, ni any cause returnable beiore a justice oi the peace, and condemned and the iustice shall condemn the same for the satisfaction of the ^y a justice, • • • • tllG TDrOCGGQlIl'-'^S plaintiff's debt, said justice shall return the proceedings to the next must be return - county court, which may affirm the judgment of the justice, and ^d to court, issue a venditioni exponas, as in other cases of constable's levy on 19. 1794, c. 414, s. 15. 20. Amendment. /f3 r. J? Note — References to Adjudged Cases. Sect. 1. Oneil vs. Owens, 1. Hay. 365 Hawks vs. Fabee, 2 Hay, 158. Alston rs. Clay, ib., 171. Powell I's. Hampton, Conf. 86. Bickerstaff rs. Delozer. ib., 299. English vs. Rej-nolds, N. C. Term R. 92. Amyett rs. Backhouse, 3 Murph 63. Washington vs. Saunders, 2 Dev. 343. Gillis vs. McCoy, 4 Dev. 172. Skinner vs. Moore, 2 Dev. and Bat. Sect. 2. Broghill »s. Welborne, 4 Dev., 511. Sect. 3. Summers vs. Parker, N. C. Term R. 147. State Bank vs. Hinton, 1 Dev., 397. Sect. 5. Hightower us. Murray, 1 Hay, 21. Mallett vs. London, 2 Hay, 158. Welsh vs. Gurley. ib.'334. Gee t's. Warrick, ib 354 and 358. Overton rs. Hill, 1 Murph 47. Russell vs. Hinton. ib. 463. Orr vs. McBryde, 2 Car. Repos., 257. Peace vs. Jones, 3 Murph, 256. Elliott vs. Newby, 2 Hawks, 21. Cowles vs. Oaks, 3 Dev., 96. Sect. 6. Jenkins vs. Langdon, 2 Hawks, 386. Sect. 7. Simpson vs. Harry, 1 Dev. and Bat. 202. CHAPTER 7. ATTORNEY GENERAL. AND SO- LICITORS. AN ACT CONCERNING THE ATTORNEY GENERAL TORS FOR THE STATE. AND SOLICI- Section 1. Attorney general to attend the su- preme court, also to prosecute in the third circuit. 2. Six solicitors to be appointed. — To hold office four years, and to prose- cute in their respective circuits. Section 3. How vacancies in the office of solici- tor during the recess of the legisla- ture to be filled. 4. County solicitors to be appointed by the county courts. Their term of office and duty. 80 ATTORNEYS AT LAW. [ChAP. VIII. Attorney gen- 1, ^E it enacted by the General Assembly of the State of J^orth the supreme Carolina, and it is hereby enacted by the authority of the same, court — also to That the attorney general shall attend to all the business which is theThird^dr- "^^^ pending in, or which may hereafter be carried up to the su- cuit. preme court of the State for adjudication, wherein the State may be concerned or in any manner have any interest therein. He shall also attend and prosecute in behalf of the State in the superior courts comprising the third circuit. Six solicitors 2. In addition to the attorney general, there shall be appointed to be appoint- ^j joint vote of both houses of the General Assembly, six so- To hold office Hcitors, who shall hold their offices for four years and no longer, four years and ^ j-^ j^^^j] attend and prosecute in behalf of the state in the re- to prosecute m . . . - i • i i i n i • i their respective spective circuits lor which they shall be appomted. circuits. 3 Whenever any vacancy shall happen either bv the death, re- How vacancies . . -^ ^ •'^ i ,. • r i • o • i in the office of moval or resignation oi any oi the solicitors oi this otate, m the re- ihe recess'or^ ^^^^ ^^ ^^^^ legislature, it shall be the duty of the judge, who is next the legislature, to ride the circuit, wherein such vacancy has happened, to appoint to be filled. ^ solicitor pro tempore, who shall have all the powers and authori- ties, receive the same salary and be subject to the performance of all the duties of such office, and be deemed to be in office until the end of the legislature, which shall first happen subsequent to his appointment. County solicit- 4, The several courts of pleas and quarter sessions within this pointed'by^t'he State, a majority of the acting justices of the county being pre- county court, sent, shall, by a vote of a majority of the justices present, ap- office andduty. point an attorney properly qualified to act for and in behalf of the state in such respective county, who shall hold his office during the term of four years, and shall and may prosecute all matters cognizable in the county court of pleas and quarter sessions, where- in he shall be appointed for, and in behalf of the state. 1. 1809, c. 768.— 1806, c. 693, s. 8. 2. 1806, c. 693, s. 7.— 1827, c. 14.— 1790, c. 318, s. 1.— Amended. 3. 1809, c. 764. 4. 1777, c. 115, s. 62.— 1816, c. 901, s. 1.-1822, c. 1149, s. 1. CHAPTER 8. ATTORNEYS AT L.A^W. AN ACT CONCERNING ATTORNEYS AT LAW. Section 1. Attorneys at law to be licensed by the judges of the supreme court. 2. Persons coming from other States to be licensed where. S. Attorneys to take oaths, Section 4. Attorneys to pay a tax before being permitted to practise. 5. Attorney to pay costs where any suit is dismissed on account of his failing to file a declaration. Chap. VIIL] attorneys at law. 81 Section 6. Attorney griilty of neglect or fraud to pa}'' double damages. 7. Attorneys not to take greater fees than those allowed by law. Section as attorney m the county court of his county. 9. Attorney upon being appointed a justice must resign his claim to •8. No justice of the peace to practise 1 practise in the county court. 1. Be it enacted by the GeneralJlssembly of the State of JVorth Carolina.) and it is hereby enacted by the authority of the same, That persons, who may apply for admission to practise as attorneys Attorneys at in any court, shall undergo an examination before two or more ^^^ ^°, \^ \ r T ■ J r 1 1 •• -r censed by the ol the judges oi the supreme court, and on receivmg certihcates judges of the from said judges of their competent law knowledge and upright supreme court. character, shall be admitted as attorneys in the courts specified in such certificates. 2. No person coming into this State from any other state or Persons coming from any foreign country, with an intention to practise the law, states to be li- shall by the said judges be admitted to practise as an attorney, censed when, unless he shall have previously resided one year in this State, or unless such person shall produce to the said judges, a testimonial from the chief magistrate of such state or country, or from some other competent authority, that he is of an unexceptionable moral character. 3. All attorneys before they shall be admitted to practise in any Attorneys to court, shall, in open court before the judges thereof, take the oath ^^^^ °^^^^- prescribed for attorneys, and also the oaths of allegiance to this 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. .M*"^. No attorney shall be permitted to practise in any court of Attorneys to this State until he shall produce the receipt of the proper clerk, ^oj^ ^ein^ ptr- shewing that he had paid the tax for his license imposed by law. mittedto prac- 5. When a plaintiff in anv suit, in any of the courts of this State, ]^^' *' • . Attorn6y to shall be compelled to pay the costs of such suit, in consequence pay costs of a failure on the part of his attorney to file his declaration in yheie any suit IS QisnussGo. on, proper time, he may warrant such attorney for all the costs by him account of his so paid, and the receipt of the clerk shall and may be given in ^^i^}'^? ^o file a evidence in support of such claim, and the justice, before whom such warrant shall be tried, may give judgment and issue execution thereon, and such attorney shall be further liable to the action of such plaintiff for such damages as he may have sustained in con- sequence of such declaration not having been filed as aforesaid. 6. If any practising attorney in any court of record in this State Attorney guil- shall neglect to perform his duty in any action in which he shall be ^^^^^ to^my °*^ retained or commit any fraudulent practice, such attorney shall be double dam- liable to an action on the case at common law, in the superior or ^^^^' county courts of this State, to the party injured, and on the verdict 1. 1818, c. 963, s. 3. 2. 1777, c. 115, s. 8. 3. 1777, c. 115, s. 8. 4. 180G, c. 698. 5. 17S6, c. 253, s. 6. - 6. 1743, c. 37. VOL. I. 11 82 AUCTIONS AND AUCTIONEERS. [ChAP. IX. allowed by law passing against him, judgment shall be given by the said court for the plaintiff to recover double damages with costs of suit. Attorneys not 7^ jf any attorney shall presume to ask, take or receive, directly to t3,iiG *-T*68.XGr •/ •/ 1 ' ^ J fees than those or indirectly, any other or greater fees, than he is by law entitled to in civil cases, it shall be deemed in such attorney a misdemeanor in his office or profession of attorney, and such malpractice being made known to any of the courts within this State, such courts are hereby required to direct the attorney general or sohcitors on be- half of the State to carry on a prosecution by indictment for such malpractice, and if any such attorney shall be thereupon convicted, by the verdict of a jury, of taking any greater fees than by law allowed, he shall, by the court in which such conviction shall be had, be thenceforth dismissed from his practice as an attorney for one year in every court of law and equity within this State. 8. No court of pleas and quarter sessions in this State shall admit to the bar of the court, as practising attorney, any person who holds the office of a justice of the peace in said county, until county court of }^g gj^^j]^ g^ ^ tender to the court a resignation of his said office to his county. , , i • , • i i 1 • be by the said court transmitted to the competent authority. Attorney upon 9. Whenever any practising attorney in a court of pleas and ed a^ustice^^" quarter sessions shall accept of the appointment of a justice of must resign the peace in the county, wherein he so practises, he shall, before he is permitted to take the oath prescribed for a justice of the peace, cause to be entered on the records of said court a resignation of all claim to practise therein as an attorney, so long as he shall keep the office aforesaid, and during the time he shall keep the said office, he shall not be heard or received as an attorney of said court. No justice of the peace to practise as at torney in the his claim to practise in the county court. 7. 1786, c. 253, s. 5. 8. 1808, c. 747, s. 1. 9. 1803, C. 747, s. 2. CHAPTER 9. AUCTIONS AND AUCTIONEERS. AN ACT CONCERNING AUCTIONS AND AUCTIONEERS. Section 1. A tax of two and a half per cent, to be paid on goods sold at auction — What sales shall be exempt from the tax. 2. V^hat articles shall be exempt from the tax on auctions. 3. Tax to be paid on articles sold by Section auctioneers at private sale in cer- tain cases. 4. When and how auctioneers to be appointed — Bond to be given and duties to be performed. 5. Commissioners of certain towns to appoint auctioneers. Chap. IX.] auctions and auctioneers. 83 Section 6. Commissioners of towns to supply vacancies. 7. Auctioneers to pay one per cent, out of the two and a half per cent, to the commissioners of towns. 8. Clerks of the county courts to make return to the comptroller of auction duties, and also of the names of the auctioneers and their sureties^ — Section Duty of the comptroller and of the treasurer. 9. Penalty on auctioneers for failing to make returns to the clerk, and on clerks for failing to make returns to the comptroller. 10. Penalty for acting as auctioneers without appointment — Proviso. 1 1 . Auctioneers' compensation. 1. Be it enacted by the General Assembly of the State of JYorth Carolina, and it is hereby enacted by the authority of the same, That there shall be levied, collected and paid for the use of the A tax of two State upon all sales by way of auction, as hereinafter described, p^f cg^t ^^'j^g which shall be made within this State, a rate and duty of two paid on goods dollars and fifty cents for every hundred dollars of the purchase ''^"^^^°'^" money arising by sale at auction of goods, wares and merchandise, and the same rate for any greater or less sum, except as herein- after excepted, the respective rates and duties to be paid by the auctioneer, or person making such sale at auction, out of the money arising from each and every sale : Provided always, that what sales nothing in this act contained shall extend to any sale by auction of empt from the goods, w^ares and merchandise, made pursuant to or in execution tax. of any rule, order, decree, sentence or judgment of any court of the United States, or of any court of this State, or made in con- sequence of any general assignment of property and effects for the benefit of creditors, or made by or on behalf of executors, administrators, or guardians, or made pursuant to the direction of any law of this State, or of the United States, touching the col- lection of any tax or duty, or of any wrecked goods. 2. The provisions of the preceding section shall not extend to What articles any article, the product of the agriculture of this State, in its empt from the natural or unmanufactured state, nor to any species of stock or tax on auctions, of domestic animals, nor to any articles of household furniture, or farming utensils, which have been in use, but they shall extend only to such articles of goods, wares and merchandise as ai'e the ordinary subject of traffic and sale by merchants and traders. 3. The duty of two and a half per cent, imposed by the first Tax to be paid section on goods, wares and merchandise sold at auction, shall be {^y auctioneers levied, collected and paid on all goods, wares and merchandise, at private sale sold by any auctioneer, whether by public or private sale : Pro-^^a-ses.^^^ vided the price at which such goods, wares and merchandise are sold, is fixed or agreed upon, or governed by the previous sale at auction of any goods, wares or merchandise of the same kind. 4. The several courts of pleas and quarter sessions in this State When and how shall annually, at the first term after the first day of April, in each be appointed, and every county, (a majority of the justices being present,) appoint not more than three persons to exercise the business or 1. IS18, c. 966, s. 1. 2. 1S19, c. 993. 3. 1824, c. 1249, s. 1. 4. 1618, C. 966, s. 2.— 1824, c. 1249, s. 2.--1S33, c. 28. 84 AUCTIONS AND AUCTIONEEES. [ChAP. IX. trade of auctioneer in their respective counties for the term of one year, each of such persons giving bond to the State of North enanddutifrCarohna with one or more securities to the satisfaction of the to be perform- court, in the sum of two thousand dollars, with condition that he will on the first day of July, October, January and April, in each year while he shall continue to exercise the said trade or business, render to the clerk of his county a true and pai'ticular account in writing of the moneys or sums for which any goods, wares, or merchandise, made liable to duty by law, have been sold at every sale at auction, by him made, and at every private sale, wherein the price of the goods, wares and merchandise thus sold at pri- vate sale, was fixed or agreed upon, or governed by any previous sale at auction of any goods, wares and merchandise of the same kind ; that the account thus rendered shall contain a statement of the gross amount of sales by him made, for each particular person or company at any one time, the date of each sale, the names of the owner or owners of the goods, wares and merchandise so sold, and the amount of tax due thereon, and also shall pay such sums of money as shall be due to the State, upon the said sales, which sums he is hereby authorized and directed to retain out of the produce of such sales made as aforesaid. The said auctioneer, at rendering his account to the clerks of the courts as herein required, shall take and subscribe an oath on said account, that the same is true to the best of his knowledge and belief, and shall annually, in the month of October, pay to the public treasurer the amount of duties upon sales at auction, and upon such private sales as are specified in the third section, by him made in the pre- ceding year, and shall be entitled to retain a commission of five per cent, upon the amount thereof for his trouble in and about the same. Commissioners 5. The commissioners of the several towns of Fayetteville, towns 10%- Wilmington, Newborn, Edenton, Elizabeth city, Hahfax, and the point auction- city of Raleigh, shall have full power to appoint not more than '^^^^' three auctioneers for their respective towns, which auctioneers shall be appointed annually on the first Monday in April, in each and every year, and who shall give bond to be approved by the court of pleas and quarter sessions of the county and otherwise be subject to the rules and regulations prescribed for auctioneers in the preceding sections of this act. Commissioners 6. Whenever any auctioneer for any of the said towns shall die, of towns to remove from said town, or resign his appointment as auctioneer, Sllpplv V3,C3.n- ■ ... cies. it shall be lawful for the commissioners of said town to supply any vacancy occurring as aforesaid by a new appointment, which shall continue in force until the next annual appointment of auctioneers. And it shall be the duty of the said commissioners to take from the auctioneer so appointed the usual bond, and to return the same to the court of pleas and quarter sessions, which shall be held next after such appointment, for the counties in which the said towns are respectively situated. 5. 1820, c. 1065. 6. 1S27, c. 26, s. 1 and 2. Chap. IX.] auctions and auctioneers. 85 7. The auctioneers in each and every incorporated town in this Auctioneers to State shall pay to the commissioners of the town, whereof he is ccIt°out^oT the an auctioneer, one per centum out of the two and a half per two and one centum, which is by the preceding sections of this act directed to to the'commis- be paid to the State, as a duty on all goods, wares and merchan- sioners of dise sold by them at auction, and at each private sale, as is^°'^"^- specified in the third section. And the said auctioneers shall be governed by the same rules, regulations and provisions and re- strictions to the said commissioners for their payment, as they are by the above provisions to the State. 8. The clerks of the several courts of pleas and quarter ses- clerks of the sions shall, annually in the month of October, transmit to the ™™^y '^°^^^^ to ni3,K6 r6turn. comptroller of this State an abstract of the accounts returned to to the comp- his office by the several auctioneers in the preceding year, also tfoller of auc- * * tlOn ClUtlBS £1110 the names of all the auctioneers appointed according to the pro- also of the visions of the fourth and fifth sections of this act with their "'^™?^ °f '-^^ , T T -r- , • auctioneers and respective securities ; and also, it no such appointments were their sureties, made, the clerks aforesaid shall transmit a statement of that fact ; and it shall be the duty of the comptroller to charge each auc- Duty of the tioneer for the amount of the duty due to the State upon such coinptroller ; , , . •' . , IT • ^nd 01 the accounts by the auctioneers respectively, and ii any auctioneer treasurer, shall fail to pay the public treasurer, at the time herein before appointed, the sums due from him to the State upon his accounts as aforesaid, the treasurer is required to move for, and the courts of this State are authorized and required to render judgment against such delinquent auctioneer and his securities, as by law judgment may be had against delinquent revenue officers. 9. If any auctioneer shall fail to render his accounts to the clerk Penalty on of the court of his county, he shall forfeit and pay the sum of fifty f;^Un°"to make dollars for each neglect, and if any clerk of any court of pleas returns to the and quarter sessions shall fail to transmit to the comptroller the cierks for fa°iL- statement required by the last section, he shall forfeit and pay the ing to make re- sum of one hundred dollars for each and every failure, which for- comptroller, feitures of the auctioneers and clerks shall be recovered by the treasurer for the use of the State, upon motion as in the pre- ceding section. 10. No person shall exercise the trade or business of an auc- Penalty for tioneer, by selling any goods, wares and merchandise whatsoever ^j^^ef^g^^^t^' by auction, or any other mode of sale, whereby the best or high- out appoiut- est bidder is deemed to be the purchaser, unless such person shall "^'^"'" be appointed an auctioneer pursuant to the provisions of this act, on pain of forfeiting for every such sale at auction the sum of two hundred dollars : Provided, however^ that nothing herein contained Proviso, shall be construed to require sales to be made by auctioneers of any estate, goods, chattels, or other thing, which, by the provisions of this act, are not made liable to duty, or are exempted from duty. 7. 1824, c. 1249, s. 3 and 4. 8. 1818, c. 906, s. 3. 9. Amendment. 10. 1818, c. 966, s. 4. 86 BAIL IN CIVIL CASES. [Chap. X. Auctioneers' compensation. 11. The auctioneers., appointed under the provisions of this act, shall be entitled to ask and receive from the persons for whom they make sales at auction, as may be agreed on between them, not exceeding two and a half per cent, on the amount of such sales. 11. 1818, c. 966, s. 5. Note. — References to Adjudged Cases. Sect. 4. Commissioners of Raleigh vs. Holloway, 3 Dev. 234. CHAPTER 10. BAII^ IN CIVIL CASES. AN ACT CONCERNING BAIL IN CIVIL CASES. Section 1 . How bail bond to be taken and re- turned — When the sheriff shall be special bail. 2. Bail bond to be assigned to the plain- tiff—If not assigned sheriff to be special bail. 3. When and how the bail may be pro- ceeded against. 4. Bail may arrest and surrender princi- pal. Section 5. Persons surrendered may give other bail. 6. Issue by the bail to be tried the first term — Non est , factum to be plead- ed only on oath. 8. Costs to be paid by the bail in certain cases. /'tf^^- tl.V returned. 1 . B E lY enacted hy the General Assembly of the State of JYorih Carolina, and it is hereby enacted by the authority of the same, H b "1 bond That when any writ shall issue from any of the superior courts of to be taken and law, or from the courts of equity in cases where bail may be re- quired, or from any of the county courts of pleas and quarter ses- sions, whereby any sheriff or other officer shall be commanded to take the body of any person or persons, to answer to any action, bill or petition in any of the said courts, such sheriff (or other officer) shall take bond with sufficient securities in double the sum for which such person or persons shall be held in arrest (executors and administrators excepted,) and shall return such bond with the When the Writ, and in case the sherifi' or other officer shall fail or neglect to sMcifihaU^ ^^take such bail, or the bail returned be held insufficient on excep- tion taken and entered the same term, to which such process shall be returnable, the sheriff or other officer, having due notice thereof, special bail. 1. 1777,0. 115, s. 16, 69.-1782, c. 177, s. 3.— 1831, c. 14. s. 1. Chap. X.] bail in civil cases. 87 shall be deemed and stand as special bail, and the plaintiff may proceed to judgment according to the rules hereinafter prescribed. 2. All bail bonds, returned to any of the courts named above, gaii bond to be shall be assigned by the sheriif or coroner returning the same by assi^:^ to the an endorsement thereon, in the following form, to wit : I, A. B. ^"^'"^^ sheriff or coroner (as the case may be) of county, do hereby assign the within obligation to CD. the plaintiff tnerein named, his executors and administrators, to be sued for according to the statute in such cases made and provided. In witness where- . of, I have hereunto set my hand and seal the day of in the year of our Lord . And every sheriff or other If not assigned, officer, failing to make such assignment, shall be deemed, held® g^i^^^^^if. and taken as special bail in the same manner as if no bail bond had been returned. 3. All bail, taken according to the directions above prescribed, ^^en and how shall be deemed, held and taken as special bail, and as such liable proceeded to the recovery of the plaintiff, but the plaintiff, after final jadg-^s^i^^^'^- ment, shall not take out execution against such bail, until an exe- cution be first returned that the defendant is not to be found in his proper county, and until a scire facias hath been made known to the bail, which scire facias shall not issue till such execution shall have been so returned, and after return of such execution against ' such principal, and scire facias against the bail, execution may is- sue against the principal and securities or any of them, or any of their estates, unless the bail shall surrender the principal before the return of the first scire facias^ or shall appear and plead upon the return thereof. 4. The bail shall have liberty, before final judgment obtained Bail may arrest against him, to surrender to the court, from which tlie process is- pri^cipah'^ " sued, or to the sheriff returning such process during the sitting of such court, or to the sheriff in the recess of such court, the principal in discharge of himself ; and such bail shall, at any time before such judgment had, 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 sheriff who made the arrest, or the court to which the process was returnable, and such sheriff is hereby required to receive such surrender, and hold the body of the defendant in custody, as if bail had never been given. 5. Any person surrendered to the sheriff after the return court. Person surren- or who shall be committed to the custody of the sheriff upon a ^^^jj^^ iJ^^^ ^^^® surrender in court, shall have liberty, at any time before final judg- ment rendered against him, to give other bail, and it is hereby de- clared to be the duty of the said sheriff to take the same and re- turn the bail bond to the succeeding court, and in case the sheriff shall release such person without bail, or the bail returned be held insufficient on exceptions taken and allowed the same term to which such bail bond shall be returned, the sheriff, having due no- tice thereof, shall be deemed and taken as special bail. 2. 1777, C. 115, S. 17. 3. 1777, C. 115, s. 19. 4. 1777, C. 115, S. 20. 5. 1827, c. 40. 88 BAIL IN CIVIL CASES. [ChaP. X. Issue by the Q. When any scire facias shall by the proper officer be return- the first 'term. ^^ to have been made known to the bail, and they in consequence thereof shall appear, they shall be obhged to plead and the issue shall be tried the same term, to which the process shall be return- ed, unless sufficient cause be shown to the court to the contrary, Non est facturn ]-,yj- ^}-jg \^q^\ gj-j^ij jjq^ -j^q permitted to plead non est factum, unless to DG "DIGS-CIGQ, %J ' only on oath, they first file an affidavit of the truth of their plea. When ijrincipal 7. When any sheriff shall return on a scire facias to him di- oVoS^eTpro- rected, that the principal is imprisoned by virtue of any process civil cess, he maybe or Criminal, the court, to which such scire facias is returnable, shall, retamed. ^^ motion of the plaintiff or bail, order and direct that such prin- cipal be retained where he shall be a prisoner, until the plaintiff's judgment and costs shall be paid, or he be otherwise discharged by due course of law, a copy of which order being served on the keeper of such prison, before such prisoner's releasement, shall be a sufficient authority for him to retain such prisoner until such order be comphed with, and shall be deemed a surrender of the principal, and a discharge of the bail. Costs to be paid 8. Whenever a scire facias shall issue against any person, as by the bail m ^jjg bail of any other person, and said bail shall not, at or before certam cases. , ~ •; ^ , . , .... ^ the term ot the court, at which said bail is bound to appear, or ■'W^ ought to plead, be discharged from his hability as bail by the death or surrender of his principal or otherwise, then and in that case, the bail shall be liable for all the costs that may accrue on said scire facias, notwithstanding said bail may be afterwards discharg- ed, as such, by the death or surrender of the principal or other- wise. 6. 1777, c. 115,8. 21. 7. 1777, c. 115, S. 22. 8. 1327, c. 15. Note. — References to Adjudged Cases. Sect. 1. Swepson vs. Whitaker, 1 Hay, 224. Luton vs. the sheriff of Wake, ib. 455. Bryan -BS. Bradley. Tayl. 77. Handy t's. Richardson, 2 Hay, 133. Rhodes i;s. Vaughn, 2 Hawks, 167. Governor vs. Jones, ib. 359. Hart vs. Lanier, 3 Hawks, 244. Arrenton vs. Jordan, 4 Hawks, 98. Gray vs. Hoover, 4 Dev. 475. Sect. 3. Hunter vs. Hill, 2 Hay, 223. Benton I's. Duffey, Conf. 98. Arrington vs. Jordan, 4 Hawks, 98. Finley vs. Smith, 3 Dev. 247. Sect. 4. Davison vs. Mull, 1 Hay, 364. Peace vs. Person, 1 Murph. 188. Dick vs. Stoker, 1 Dev. 91. Granberry »s. Pool, 3 Dev. 155. Huggins fs. Fonville. ib. 392. Moody vs. Stockton, ib. 431. Chap. XL] BANK NOTES. 89 CHAPTER 11. BANK NOTE8 AN ACT TO PROHIBIT THE CIRCULATION OF BANK NOTES UNDER FIVE DOLLARS. Section 1. Notes of the banks of other states, &c. under five dollars not to be cir- culated in this State. Section 2. Penalty for circulating such notes. 1. Be it enacted by the General Assembly of the State of Jforth Carolina^ and it is hereby enacted by the authority of the same, That it shall not be lawful for any person to pass, circulate or re- ceive in payment, within this State, any bank-note, bill or prom- issory note for the payment of money, issued by any state or sovereignty, or by any body poHtic or corporate, not authorized to issue the same in and by any of the laws and statutes of this State, under the denomination of five dollars. 2. Any person offending against any of the provisions of the preceding section shall forfeit the nominal amount of such bank note, bill or promissory note with costs of suit, to be recovered in the name and for the use of any person who shall sue for the same, and prosecute such suit to judgment in any jurisdiction hav- ing cognizance thereof- 1. 1830, c. 40, s. 1. 2. 1830, c. 40, s. 2. Notes of the banks of other states &c. under five dol- lars not to be circulated in this State. Penalty for circulating such notes. CHAPTER 12. BAST A MB CHIL.DREN AN ACT CONCERNING BASTARDY AND PRESCRIBING THE MODE OP LEGITIMATING BASTARD CHILDREN IN CERTAIN CASES. Section 1. A single woman being with child, &c. and refusing to declare the father, lo pay a fine and give secu- rity, &c.— If she declare the father he shall give security to the order of the court on oath, perform thereon. VOL. I. 12 Section 2. Person charged to be bound over though the child be not born. 3. Process to issue against the person charged and failing to appear. 4. Issue may be made up by the party charged to try the fact— If issue found against him or if there be no 90 BASTARD CHILDREN. [ChAP. XII. Section issue, he is to be bound for the maintenance of the child and pay the costs. 6 . Appeal may be taken by the prose • outing attorney. 6. Examination must be within three years after birth of the child. Section 7. Execution may issue for the mainte- nance of the bastard. 8. Illegitimate cliildren may be legiti- mated by the county or superior courts. 9. Effect of such legitimation. 10. Decree to be recorded. 1. J^E it enacted by the General Assembly of the State of JYorth Carolina, and it is hereby enacted by the authority of the same, A single wo- That any two justices of the peace, upon their own knowledge or inan being with information made to them, that any single woman within their coun- refusing to de- ty is big with child Or delivered of a child or children, may cause clare the father, such woman to be brought before them (or any other two Justices and give secu- of the county) and to be examined upon oath concerning the father, rity, &c. 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, or shall be committed to prison until she shall declare the same or pay the fine aforesaid and give bond with If she declare Security aforesaid ; but in case such woman shall, upon oath be- the father on fore any two justices aforesaid, accuse any man of being the father \ give 'security to ^^ ^ bastard child or children begotten of her body, such person perform the SO accuscd shall enter into recognizance with sufficient security, court thereou. 'before the said justices, for his appearance at the next term of the county court and to stand to and abide by and perform whatever order said court may make for the maintenance of said bastard children, and for the indemnification of the county against any charges for the said maintenance, or shall be committed to prison until he enters into such recognizance aforesaid. Person charp-ed 2. Any two justices of the peace aforesaid, at their discretion, to be bound may bind to the next county court him that is charged on oath as aforesaid to have begotten a bastard child, which shall not be then born, and the county court may continue such person upon secu- rity until the woman shall be delivered, that he may be forthcom- ing when the child is born. Process to is- 2' Whenever any two justices of the peace as aforesaid shall sue against the bind any person, charged with being the father of any bastard child, and faihngTo ^o the next county court as above prescribed, and the said person appear. shall not appear agreeably to his said recognizance, or whenever any woman shall swear a child to any man in manner as above pre- scribed, and the man to whom said child is sworn shall abscond or so conceal himself that the process of said justices cannot be serv- ed on him., then it shall and may be lawful for the county court, on the return of the recognizance or other proceedings from the jus- tices of the peace, to order their clerk to issue a capias or an at- tachment, at the discretion of the said court, to any county within this State against the person, so charged with being the father of such bastard child so absconded, and the same proceedings shall over though the child be not born 1. 1741, c. 30, s. 10.— 1799, c. 531, s. 2.- 2. 1741, c. 30, S. 11.— 1799, c. 531, s. 2. 3. 1799, c. 531, s. 1. -1832, c. 10.-1832, c. 17. Chap. XIL] bastard children. 91 be had thereon as m other hke cases of a capias or an attach- ment. 4. Whenever any man shall, in the manner above prescribed, issue may be be accused by any single woman of being the father of her bastard ^g pa^X ^ child or children, the person so accused shall, upon the return to charged to try the county court of the recognizance, capias or attachment as the ^ ^ ^^^' case may be, be entitled to have an issue made to try up whether he be the father of such child or children ; upon the trial of which issue, the examination of the woman upon oath, taken before two justices of the peace in manner prescribed above and returned to court, shall be prima facie evidence only against the person so ac- cused, and if the jury shall, upon the trial of such issue, find that if issue found the person so accused is the father of such child or children, he ?sainst him or . II there be no shall stand charged with the maintenance thereof as the court may issue, he is to order, and shall give bond payable to the State of North Carolina, ^'^tiound for ... i"* ^ _ ^ ^ trie insuriten- with sufficient security, to perform said order and to indemnify the ance of the county, where such child or children shall be born, free from ^^^^'^ ^^^ P'^y charges for his, her or their maintenance, and may be committed to prison until he find securities for the same, if such security is not by the woman before given, and shall be liable for the costs of such issue ; and the like order may be given by the court and the hke security required from any man, who stands charged as above and does not apply for an issue to be made up to try the fact of his being the father of such child or children, and in default of such security he may be committed to prison as above ])rescribed. 5. In the trial of all issues under the provisions of the last sec- Appeal may be tion, the officer prosecuting on behalf of the county shall, and he J^.ose,,ut^cT at- is hereby authorized to appeal to the superior court of law in all tomey. cases where he shall think that justice has not been obtained. 6. All examinations upon oath, to accuse or charge any man of ^-"^^"V"^*^?" benig the latner oi a bastard child, shall be had and taken vvitmn in three years three years next after the birth of said child and not after. f>[^'^'^^^^!i °^ 7. When any county court within this tetate shall charge the Execution may reputed father of any bastard child with the maintenance of the issue for the same, in manner above prescribed, and the said reputed father shall the^baTtard.^ ° refuse or neglect to pay the same, then it shall and m,ay be lawful for such county court, notice being served on the defendant at least ten days before the sitthig of said court, or such notice being returned by the sherift', that the defendant is not to be found, to or- der an execution against the goods, chattels, lands and tenements of the said reputed father, for such sum as said county court shall adjudge sufficient for the maintenance of said bastard child or chil- dren, provided that the party aggrieved by such non-payment shall apply for the same. 8. The putative father of any illegitimate child or children may illegitimate 1 1 ^- • ....•','-', . •' children may apply, by petition in writing, either to the county or superior court be legitimated of the county, in which such father may reside, praying that the ^y the county ■' •' ' i J Lj Qj. superior courts. -1741, c. 30, s. 10. 4. 1814, c. 871, s. land 2. 5. 1814, c. 871, s. 3. 6. IS14, c. 871, s. 1. '/_ 1799, c. 531, s. 3. 8. 1829, c. 19, s. 1. 92 BILLS, BONDS, ETC. [Chap. XIII. said child or children be declared legitimate, and if it shall appear to said court from the oath of said petitioner and such other evidence as the court may require, that the petitioner hath intermarried with the mother of said child or children, or that the said mother is dead, or married to another, or lives out of the State, and that such petitioner is reputed the father of said child or children, the said court may thereupon declare and pronounce the said child or children legitimated accordingly. Efiects of such 9. The effect of such legitimation shall extend no further, than legitimation, ^q impose upon the father all the obhgations which fathers owe to their lawful children, and to enable the child, thus legitimated, to inherit, from the father only, lands whereof the father may die seiz- ed in fee simple, and to transmit the same in the course of des- cent, in the same manner as though such child had been born in lawful wedlock, and also to entitle such child to distribution of the personal estate of his or her father, in the same manner as though he or she had been born in lawful wedlock ; and in case of death and intestacy, the personal estate of such child sliall be distribu- ted, according to the statute of distribution, among those who would be his or her next of kin in case he or she had been born in lawful wedlock. 10. It shall be the duty of the clerk of the court, where such petition is filed and such decree made, to record the decree of the court thereon ; and for said services he shall be entitled to receive a fee of one dollar from the petitioner. 9. 1829, c. 19, s, 3, i r> J J • g Decree to be recorded. 10. 1829^ c. 19, s, 2. In r ff Hi Note — References to Adjudged Cases. Sect. 1. Wilkie ps. West, 1 Murph. 319. State vs. Barrow, 3 Murph. 121. State vs. Petway, 3 Hawks, 623. Sect. 7. McPherson vs. McCoy, 2 Dey. 391. Shaw vs. Stewart, 1 Dev. and Bat. 412. CHAPTER 13. BIL.L8, BONDS AND PROMISSORY NOTES. AN ACT CONCERNING BILLS, BONDS AND PROMISSORY NOTES. Section 1 . Promissory notes made negotiable as inland bills of exchange. 2. Orders in writing on third persons good ; and the drawer or acceptor Section liable — But protest for non-accep- tance and notice necessary before a suit will lie against the drawer. 3. All biUs, bonds or notes for money Chap. XIIL] bills, bonds, etc. - 93 Section 8. Damages on protested bills of ex- change, what. 9. Action on protested bills of exchange may be brought against drawers and endorsers jointly or separately. 10. In action against drawer or endorser, protest of notary, &c., shall be evi- dence of a demand, &c. 11. Endorsers of bills, bonds and prom- issory notes to be held liable as sureties. Section with or without seal, &c., made negotiable — Endorsee or assignee may have an action on the case or of debt in some cases in his own name. 4. Interest on bills, &c. when to accrue. 5. Bills, &c. payable on demand — their operation. 6. Contracts for the delivery of specific articles to bear interest. 7. Bills of exchange from what time to bear interest. i /^^ ^, C'^ .O. 1. Be if enacted by the General Assembly of the State of JVorth Carolina, and is hereby enacted by the authority of the same, That all notes signed by any person or persons, body politic or Promissory corporate, or by the servant or agent of any corporation, banker, ^otiabk'as^in.-" merchant or trader, who is or shall be usually intrusted to sign land bills of such promissory notes for them, whereby such person or persons, ^^'^ ^"^^' body politic or corporate, or the servant or agent of any corpora- tion, banker, merchant or trader shall promise to pay any person or persons, body politic or corporate, or the servant or agent of any corporation, banker, merchant or trader, or order, the money mentioned in such note, shall be construed to be, by virtue thereof, due and payable to such person or persons, body politic or corpo- rate, or the servant or agent of any corporation, banker, merchant or trader, to whom the same is made payable, and also such note payable to such person or persons, body pohtic or corporate, or the servant or agent of any corporation, banker, merchant or trader, or order, may be assignable over in hke manner as inland bills of exchange are by custom of merchants in England, and the person or persons, body politic or corporate, or the servant or agent of any corporation, banker, merchant, or trader, to whom such money is or shall be payable, may maintain an action for the same, as they might upon such bill of exchange, and the person or persons, body politic or corporate, or the servant or agent of any corporation, banker, merchant or trader, to whom such note so payable to order is assigned or endorsed, may maintain an action against the person or persons, body politic or corporate, or the servant or agent of any corporation, banker, merchant or trader, who signed or shall sign such note, or any who shall or have en- dorsed the same, as in cases of inland bills of exchange, and re- cover damages and costs of suit, and in case of nonsuit or a ver- dict shall pass against the plaintiff, the defendant shall recover costs. 2. When any person or persons shall, by order in writing signed Orders in by his or their proper hand, direct the payment of any sum or }"'^'"?°" ■' ^ -111 • r 1 third persons sums oi money in the hands or possession oi any other person or good; and the persons to the bearer, or any person or persons whatsoever, drawer or ac- the money therein specified shall by virtue thereof, be due and payable to such person or persons, to whom the same is drawn payable, and may be put in suit against the person or persons who 1. 1762, c. 70, S. 2. 2. 1762, c. 70, S. 3 and 4. • - ■ 94 BILLS, BONDS, ETC. [ChAP. XIII. shall draw the same, or against the person or persons on whom the same shall be drawn, after the acceptance thereof by him or them by whom the same shall be made payable, and damages may But protest for ^^ recovered. Provided, nevertheless, that no person or persons non-acceptance whatsoever shall prosecute any suit against any person or persons essary before 'a who shall give such Order for the money therein mentioned, before suit will lie the same shall have been first protested for non-acceptance, and dfawe^r. ^ notice given thereof to the drawer, before such suit shall be brought, and if any suit shall be brought on any such order before notice and refusal to pay as aforesaid, the plaintiff or plaintiffs shall be nonsuited and pay costs. All bills bonds ^* AH bills, bonds or notes for money, as well those with as or notes for tliose witliout seal, thoso which are not expressed to be payable wkhout^seal ""^^^ Order or for value received, as those which are expressed to be &c. made ' payable to order and for value received, shall be held and deemed negotia e. ^^ ^^ negotiable, and all interest and property therein shall be transferable by endorsement in the same manner and unHer the same rules, regulations and restrictions as notes called promissory or negotiable notes are by the first section of this act. And the Endorsee or endorsee or assignee may have and maintain his action on the case assignee may ^ , r t ^ i • i i -n i i have an action lor the recovery 01 the moneys due mm upon such bill, bond or °?i^®. ■'^^^^' ""^note, notwithstandine; any seal thereunto annexed, in his the said 01 debt in some ' . ^ , •' • i i cases, in his endorsee s or assignees own proper name, as suits have been own name. heretofore had and maintained by endorsees or assignees of notes called promissory or negotiable : Provided, always, that the en- dorsee or assignee of any bill, bond or note under seal may have and maintain an action of debt on the same in his or her own name, as endorsee or assignee, provided the original obhgee could have maintained an action of debt on the same bill, bond or note with seal. Interest on 4. All bonds, bills, notes, bills of exchange, liquidated and ^i^^®'^*^- ■^^^ settled accounts, shall bear interest from the time they become to iiccruG. '^ due, provided that such liquidated and settled accounts shall be signed by the debtor, unless it shall be specially expressed that in- terest is not to accrue until a time specially mentioned in the said writings or securities. Bills, &c. paya- 5. All bills, bonds or notes made payable on demand, shall be their" pemlon''^®^^^ ^^^^ deemed to be due on demand made by the creditor, his agent or attorney by suit or request, and shall bear interest from the time of demand. Contracts for 6. All securities for the payment or delivery of tobacco and all the delivery of Qjj^gj, specific articles, shall bear interest as moneyed contracts ; to bear interest, that is to Say, the articles shall be rated by a jury at the time they become due, and interest be ])aid by the debtors accordingly. Bills of ex- 7, Bills of exchange which shall be drawn or endorsed in this what'^time to State, and which may be protested, shah carry interest not from bear interest, the date thereof, but from the time of payment therein respectively mentioned. Damages on 8. The damages on such protested bills shall be as follows : protested bills of exchange, ^hat. 3. 1786, c. 248, s. 1.— 1789, C. 314, s. 3. 3. 1786, c. 248, s. 1. —1789 4. 17SG, c. 248, s. 3. 5. 17SG, c, 248, s. 4. 6. 1786, c. 246, s. 5. 7. 1823, C. 2. S. 1. Chap. XIII.] bills, bonds, etc. 95 that is to say, where the bill shall be drawn or endorsed in this State upon any person or body corporate in any other of the United States, or in any of the territories thereof, excepting the state of Louisiana, six per centum upon the principal sum ; where such bill shall be drawn or endorsed as aforesaid upon any person or body corporate in any other state or place in North America, or the islands thereof, excepting the North West Coast of Amer- ica, or in any of the West Indies or Bahama Islands, ten per cent, upon such principal sum ; where such bill shall be draw^n or endorsed as aforesaid upon any person or body corporate in the island of Madeira, the Canaries, the Azores, the Cape de Verd Islands, or in any other state or place in Europe or South * America, fifteen per cent, on such principal sum, and where such bill shall be draw^n or endorsed as aforesaid on any person or ' jf body corporate in any other part of the world, twenty per cent, on such principal sum. 9. Any person or persons, having a right to demand any sum Actions on of money due upon a protested bill of exchange of the description of exchange aforesaid, may commence and prosecute an action for principal, ^^Y^'^ brought 1 ■' 1 , '■c -117 aramst draw- mterest, damages and charges oi protest agamst the drawers anders and endor- endorsers jointly, or against either of them separately, and judg- '^crs jointly or ment shall and may be given accordingly. 10. In all actions at lav^ wherein it may be necessary to prove in action a demand upon or notice to the drawer or endorser of a bill of ex- ^?""|'^ drawer ^ . . , , . or endorser change, or promissory note, or other negotiable security, or where protest of no- it may be necessary to prove a demand upon the acceptor or i,^"^ '^^j^ ^'^^^l •' •' i^ . . I . i- be evidence of drawee oi a bilJ oi exchange in any action at law against the drawer a demand &c. or endorser of such bill of exchange, the protest of a notary public or, for want of a notary public, of a justice of the peace, clerk of courts of record and clerk and master, setting forth that he has made such demand or given such notice, and the manner in which he has done the same, shall be prima facie evidence that such de- mand was made, or notice given in manner set forth in such protest. 11. Whenever any bill, bond or promissory note, made nego- Endorsers of liable by this act, shall be endorsed, such endorsement, unless it tii'ls, bonds be otherwise plainly expressed therein, shall render the endorser noies to be or endorsers liable as surety or sureties to any holder of such bill, ^^^^'^ Ji^We as bond, or promissory note, and no demand on the maker shall be necessary previous to an action against the endorser. Provided, that nothing herein contained shall in any respect apply to bills of exchange, inland or foreign. /» / y IDaiiia^Gf or j'sy^J 8. 1828, c. 2, s. 2.— 1741, c. 31.— 1796, c. 464, s. 1 and 2. 9. 1796, c. 464, s. 3. 10. 1812, c. 844.— 1819, c. 1003.— 1826, c. 15. 11. 1827, c. 2. Note. — References to Adjudged Cases. Sect. 1. Hodges vs. Clinton, Martin 76. — Jamieson ts. Farr, 1 Hay. 182. Sect. 2. vs. Staunton, 1 Hay. 271. Sect. 3. Tindall vs. Johnson, 1 Hay. 372.— Campbell vs. Mourfordj ib. 398. Sect. U. Hatcher vs. McMorine, 4 Dev. 122. 96 BOATS AND CANOES. [ChAP. XIV CHAPTER 14. BOATS ANB CANOES. AN ACT TO PREVENT THE TAKING AWAY BOATS, CANOES AND PETTIAGUAS FROM LANDINGS OR ELSEWHERE WITHOUT LEAVE. \ \ Section 1. Persons taking boats, canoes, &c. without leave to forfeit two dollars to the owner — Provided that the common law right to sue for dam- ages shall not be taken away. 2. Penalty on slaves for taking boats, &c. without leave — Proviso for Section cases where a master orders his slave to take the boat, &c. 3. Penalty not to extend *) persons who shall press boats, &c. for the pub- lic service, or to the proper owners of such boats, &c. Persons taking boats, canoes, &c. without leave, to for- feit two dollars to the owner. Provided that the common law right to sue for dam- ages shall not be taken away, Penalty on slaves for tak- ing boats, &c. without leave. Proviso for cases where a master orders his slave to take the boat, &c. 1. Be it enacted by the General Assembly of the State of J^orth Carolina, and it is hereby enacted by the authority of the same, That any person, who shall take away from any landing, or other place where the same shall be, any boat, canoe, or pettiagua, belongbg to or in the custody of any person whatsoever, without the consent and leave of the owner or possessor of such boat, canoe or pettiagua ; or shall loose, unmoor, or turn adrift the same, shall forfeit and pay to the party who shall own, or in whose custody and possession such boat, canoe or pettiagua was, the sum of two dollars ; to be recovered by warrant before any justice of the peace within the county where the offence shall be committed : Provided, that nothing herein contained shall debar any person from his action at common law, for any damage sustained by reason of any boat, canoe, or pettiagua, to him belonging, being so taken or unloosed, unmoored, or turned adrift from any landing or other place where the same was left, against any person committing such offence, notwithstanding such person shall have paid the penalty herein inflicted. 2. If any slave shall offend against the provisions of the above section, and be thereof convicted, and the master or mistress of such slave shall refuse to pay the said sum of two dollars, such slave shall suffer correction, by whipping, at the discretion of the magistrate, not exceeding thirtynine lashes : Provided, that if any master, mistress or overseer shall order any slave belonging to him or her, or under his care, to take from any landing or other place, any boat, canoe, or pettiagua, contrary to the intent and meaning of this act, such master, mistress, or overseer of such slave so offending, shall be liable to the forfeitures and penalties of this act, as if he or she in his or her proper person had done the same. 1. 1741, c. 29, s. 2 and 3. 2. 1741, c. 29, s. 4 and 6. Chap. XV.] BOOK DEBTS. 97 3. The provisions of this act shall not extend to any person Penalty not to who shall press any boat, canoe or pettiagua by public authority ; son^ who shall or to any person who shall seize his own proper boat, canoe or press boats, &c. pettiagua, or to any other person or persons, being lawfully au- service,^or to thorized so to do by the owner, from any place or landing, ortheproper from any person in whose custody he shall find the same, or to any such boats, &c. slave taking any boat, canoe or pettiagua from any landing or other place, by order of his or her master, mistress, or overseer. 3. 1741, c. 29, s. 5. CHAPTER 15. / BOOK BEBTS. AN ACT ASCERTAINING THE MODE OF PROVING BOOK DEBTS. SECTION 1 . In what cases and within what time book accounts may be proved by the plaintiff's own oath. 2. In. what cases and within what time proved by the oath of an adminis- trator or an executor. 3. Copy of the account to be evidence Section unless notice given to produce the original. 4. Defendant may contest the evidence. 5. No plaintiff to prove by his own oath more than sixty dollars. 6. Set-off may be proved in like manner. 1. Be it enacted by the General Assembly of the State of J^orth Carolina, and it is hereby enacted by the authority of the same, That in any action of debt, or upon the case, where the plaintift' shall in what cases declare, upon an emissit, indebitatus assumsit, quantum meruit, or '^"/^ ^\*^^", . quantum valebat, for goods, wares and merchandise, by him sold accounts may and delivered, or for work done and performed, he shall file his ^j^ P^/.^'^.^y account with his declaration, and upon the trial of the issue, or own oath, executing a writ of Inquiry of damages in such action, shall declare upon his corporal oath or solemn affirmation, (as the case maybe,) that the matter in dispute is a book account, and that he hath no means to prove the dehvery of such articles as he shall then pro- pose to prove by his own oath, or any of them, but by his book ; in that case such book shall and may be given in evidence, if he shall make out by his own oath or affirmation, that such book doth contain 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 fide delivered, and that he hath given the defendant all just credits ; and such book and oath or affirmation shall be admitted and received as good evidence for the 1. 1756, c. 57, s. 2. VOL. I. 13 dS BOOK DEBTS. [ChAP. XV. several articles so proved to be delivered, within two years before the said action brought, but not for any article of a longer standing. In what cases 2. In all trials at law, where the cause of action may be a book what7ime" account, and to which executors or administrators may be either proved by the plaintiiFs or defendants, and two years from the delivery of the ar- executor^OT ad-^^*^^^^ ^'^^^ ^^^ elapsed previous to the death of the deceased ; in ministrator. that case, sucli executor or administrator, on proving by his own oath or affirmation, that he found the account so stated on the books of the deceased ; that there are no witnesses to his know- ledge capable of proving the delivery of the several articles which he shall propose to prove by the said book, and that he beheves the same to be just, and doth not know of any other or further credit to be given than what is there mentioned ; shall be at lib- \ erty to give such account in evidence, either wuen he is plaintiff in the suit, or where such account may be pleaded as a set-off against the demand of the plaintiff, although more than two years may have elapsed previous to the bringing of such action, provid- ed suit is brought thereon or set-off pleaded, within one year af- ter the death of the deceased, or administration granted. Copy of the 3. A copy from the book of accounts, proved in manner above evidence^uniess ^J^'scted, shall and may be given in evidence in any such action as notice given to aforesaid and shall be as available as if such book had been pro- oH^naV^^ duced, unless the defendant or his attorney shall give notice to the plaintiff or his attorney, at the joining of the issue, that he will require the book to be produced at the trial, and in that case no such copy shall be admitted or received as evidence. Defendant may 4. The defendant shall be at liberty to contest the plaintiff's idencf ^ ^^^' evidence, and oppose the same by other legal evidence. No plaintiff to 5. No plaintiff shall be at liberty to prove, by his book and prove by his oath or affirmation as aforesaid, on the trial of any such action as than sixty dol- aforementioned, any article or articles, the amount whereof shall ^^^^- exceed the sum of sixty dollars. Set-off may be Q j^j gjj cases where a defendant would be allowed to plead a manner. set-off and his set-off consists of a book debt account, he shall be allowed to prove the same in the same manner and to the same ex- tent, and in all respects shall be subject to the same rules, regu- lations and restrictions as above set forth and prescribed for actions brought by plaintiffs on book debt accounts. 2. 1796, c. 465.— 1756, c. 57, s. 2. 3. 1756, c. 57, s. 3. 4. 1756, c. 57, s. 4. 5. 1756, c. 57, s. 6. 6. 1756, c. 57, s. 7. Note — Refehemces to Adjudged Cases. Sect. 1. Mitchell vs. Clark, Martin, 25. Charlton vs. Sawyer, ib. 26. Thomague vs. Bell, ib. 44. Kitchen vs. Tyson, 3 Murph. 214. Stevelie vs. Greenlee, 1 Dev. 317. Chap. XVI.] BURNING WOODS. CHAPTER 16. BURNING W^OOD8. AN ACT CONCERNING THE BURNING OF WOODS. Section 1 . No person to set fire to any woods except his own, and then not with- out giving two days notice. Section 2. Penalty on free persons violating this act. 3. Penalty on slaves. 3erson to 1. Bk it enacted by the General Jlsseinbly of the State of JS''orth Carolina^ and it is hereby enacted by the authority of the same, That it shall not be lawful for any person to set fire to any woods ^'^F except it be his own property, and in that case it shall not be law- woods except fill for him to set fire to his own woods without first sivina: notice \^® °^^' ^^^ -.-. .-.,,... . , 111- 11 then not with- to all persons owning lands adjoining to said wood lands intended out giving two to be fired, at least two days before the time of setting such woods ^^^^ notice. on fire, and also taking effectual care to extinguish such fire before it shall reach any vacant or patented lands contiguous or adjoining to such lands so fired. 2. Every free person, offending against the provisions of this Penalty on free act, shall forfeit and pay for every such offence the sum of fifty fng\his act.^ ' dollars, to be recovered before any justice of the peace, to the use of the person suing for the same, and shall also be further hable to the party injured by such unlawful firing of the woods, for all damages that may accrue therefrom. 3. If any slave shall violate this act, he shall, on conviction be- Penalty on fore a single magistrate, receive thirtynine lashes at the public ®l^'^^^- whipping post. 1. 1777, c. 123, s. 2. 2. 1782, c. 182. 3. 1777, c. 123, s. 3. Note. — Refeeences to Adjudged Cases. Sect. 1. Wright vs. Yarborough, N. C. Term R. 263. — Tyson vs. Rasburj', l .Hawks. 60. 100 CATTLE, HORSES AND HOGS. [ChAP. XVII. CHAPTER 17. CATTL.E, HORSES AND MOI^S. AN ACT CONCERNING CATTLE, HORSES AND HOGS. Section 1 . Every owner of stock to have a mark and brand — Mark and brand to be recorded. 2. Penalty for killing cattle or hogs in the woods, and not exhibiting the head, ears and hide within two days. 3. Cattle not to be driven into this State from South Carolina or Georgia be- tween 1st of April and 1st of No- vember. 4. Cattle not to be driven from certain parts of this State into the high- land parts thereof between the 1st Section of April and the 1st of November. 5. Persons driving cattle from one part of the State to another, must have a certificate of the place from wliich they were driven, and of their healthy condition — Justice not to grant a certificate without an affi- davit. 6. Stoned horses of two years old not to go at large. 7. Remedy for persons having stock killed upon the rail roads by the ensiines orcars. Every owner of stock to have a mark and brand. Mark and brand to be re corded. 1. Be it enacted by the General ^Rssembly of the State of JYorth Carolina, and it is hereby enacted by the authority of the same, That every person in this State, who hath any horses, cattle or hogs, shall have an ear mark or brand different from, the ear mark and brand of all other persons, which ear mark and brand he shall record with the clerk of the county where his horses, cattle or hogs are, if not already recorded, and he shall brand all horses with the said brand from eighteen months old and upwards, and ear mark all his hogs from six months old and upwards with the said ear mark, and ear mark or brand all his cattle from twelve months old and upwards with the said ear mark or brand. And if any dispute shall arise about any ear mark or brand, the same shall be decided by the book of the clerk of the county court, where such cattle, horses or hogs are. Penalty for 2. If any person hereafter shall kill any one or more neat cattle ^Jig^fj^'^^'^"^^ "'^ or hogs in the woods, he shall, within two days, shew the head woods and not and ears of such hog or hogs, and the hide with the ears on of head'^earland ^"^^ "^^^ beast or cattle, to the next magistrate, or to two sub- hide within two stantial freeholders, under penalty of ten dollars, to be recov- ^^^' ered by any person who will sue for the same by action of debt before any justice of the peace. Cattle not to be 3. No person whatever shall hereafter drive any cattle into this state'from State between the first day of April and the first day of November South Carolina in every year, from either the states of South Carolina or Georgia, or Geor^a be- -^ •' ^ ° ' tween first of April and first 1. 1741, c. 26, s. 6. ofNovember. 2. 1741, c. 26, s. 5.— 1803, c. 627, s. 1. 3. 1795, c. 439, s. 1. Chap. XVII.] cattle, horses and hogs. 101 linger the penalty of four dollars for each and every head of cattle brought into this State contrary to the meaning of this section, to be recovered by any jurisdiction having cognizance thereof, by any person suing for the same, one half to his own use, and the other half to the use of the State. 4. No person shall hereafter drive any cattle from those parts p'^ttle not to of this State, where the soil is sandy and the natural production certain parts of or growth of timber is the long leafed pine, into or through any [{^^^j^^y^ ^}° of the highland parts of the State where the soil or growth of parts thereof timber is of a different kind, between the first day of April and jj^g^of ^ ^rii the first day of November in every year, under the penalty of four and first of Nov. dollars for each and every head of cattle so driven, to be recovered and applied as before mentioned. 5. No person or persons shall hereafter drive any cattle from Persons drmng 1 1 *f ^ c usual form prescribed for other conveyances for lands, shall be registered in the register's office of the county where the land lies in hke manner with other deeds. 2. In all actions or suits, which may be instituted against any ^"^ ^^^^^ ??*"*^'^ I r 1 PI 1 11 corporations, a corporation, mstead oi the process lormerly used to compel the summons to is- appearance of such corporation, it shall be sufficient to issue a^^^- summons to the sheriff or other proper officer, reciting the cause of action, and summoning the said corporation to appear and an- swer the same on the proper return day, which summons shall be returnable in the like manner and subject to the same rules and re- gulations as other original process. 3. If a summons be issued as aforesaid against any banking, turn- On whom the pike, navigation, insurance, or other incorporated company, ser- s™^°°^ ^° ^^ vice on the president or other head, or in his absence on the ca- shier or treasurer, or in the absence of both the president or chief officer and the cashier or treasurer, then on any director of such company, such president or other officer being at the time of such service in the county in which he usually resides, shall be deemed sufficient service of the summons ; and if the summons be issued against the corporation of any city or town, service on the chief magistrate, or in his absence on any commissioner of such city or town, such chief magistrate or commissioner being at the time of such service within the limits of such corporation, shall be deem- ed sufficient ; and in like manner the service of such summons on the president, and, in his absence, on any trustee of any incorpo- rated college or academy, or on the chief officer of any other cor- poration whatever, or for want of such chief officer on any mem- ber of such corporation, such president, trustee, chief officer, or other member being at the time of service within the county in which he usually resides, shall be deemed sufficient; and on the re- turn of such summons served in manner aforesaid, in any of the said cases, the same proceedings to a final judgment shall be had against such corporation as are had in other suits at law, after the return of a capias ad respondendum executed ; on every summons serv- How returned. ed as aforesaid, the sheriff or other proper officer shall make re- turn distinctly on whom the same hath been executed, otherwise such service shall not be deemed valid. 4. Suits in equity against corporations shall commence by sub- Suits in equity poena, and the service of such subpoena and all interlocutory or- ^°^ proceeded ders and decrees shall be made in the same manner and under the same restrictions as is herein before provided for the service of a summons in a suit at law, and the same proceedings to a final de- cree shall be had against such corporations as are had in other suits in equity. 5. If any judgment at law or decree in equity shall be rendered ^n^toTssue" 2. 18-20, c. 10o6, s. 1. 3. 1820, c. 1056, s. 2. 4. 1820, c. 1056, s. 3. 5. 1820, c. 1056, s. 4. 120 CORPORATIONS. [ChAP. XXVI. When and how an information may be filed against a cor- poration. Court may re- quire a bond to be given by the relators. How the su- preme court may proceed to ascertain facts. Appeal allowed from the supe- rior court. Judgment of dissolution or forfeiture shall not extinguish debts ; but a receiver to be appointed. against any corporation, it shall be lawful for the plaintiff or com- plainant in the suit to sue out either a distringas or fieri facias as he may think proper, and the said writs of distringas or fieri fa- cias may be levied as well on the current money as on the goods, chattels, lands and tenements of the said corporation. 6. Whenever it may be deemed proper by the legislature of this State, or the governor or attorney general for the time being, that a judicial inquiry shall be instituted to ascertain whether any corporation by non-user or abuser of its franchises, has incurred a forfeiture of its charter, or has been dissolved by the surrender of its franchises, or any other mode, it shall be lawful for the at- torney general, in behalf of the State, to fde an information either in the supreme court, or in the superior court of law, for the coun- ty wherein the general meetings of the members or the officers of such corporation have usually been holden or by law ought to be holden, setting forth briefly and without technical forms the grounds, on which such forfeiture or dissolution is alleged to have been in- curred or to have taken place, and thereupon it shall be the duty of the said court to take such order, for enabling those interested in the charter or continuance of the corporation to have due notice of and make defence against such information, and make all such rules for procuring and taking evidence, and having a fair trial of the controverted facts, as shall be deemed just and reasonable. 7. When the said information shall be filed by the attorney ge- neral in consequence of the relation of any individual or individ- uals, it shall be lawful for the court in its discretion to require bond with approved securities from the relator or relators, to indemnify the corporation against all the costs of such information. 8. If such information be filed in the supreme court, it shall be lawful for said court, in regard to any facts, upon which the find- ing of a jury may be necessary, either to cause such jury to be empanelled before the supreme court, or to send the issue to be tried before the judge of the superior court of any county of the State. 9. From the judgment which may be rendered in the superior court, it shall be lawful for either party to appeal to the supreme court ; and on a final judgment of dissolution or forfeiture being rendered, such dissolution or forfeiture shall not extinguish the debts due to or from the corporation, but the court rendering such final judgment shall proceed to appoint a receiver or receivers, who shall have full power to collect, in his or their own names, all the debts due to said corporation, to take possession of all its property, and to sell, dispose, and distribute the same in order to pay off the creditors of said corporation, and afterwards to reim- burse the stockholders thereof, under such rules, regulations, pro- visions and restrictions as the court rendering such final judgment shall direct. 6. 1831, c. 24, s I. r. 1531, c. 24, s. 2. S. 1831, c. 24, s. 3. 9. 1831, c, 24, s. 4. Chap. XXVL] corporations. ' 121 10. It shall be lawful for the attorney general, as herein before Attorney gen- directed, to file a bill in the nature of a bill in equity, either in the biui^equity to supreme court of this State, or in the superior court of equity of restrain corpo- the county, as herein before directed, to restrain by injunction exe^dsin^pow- any corporation from assuming or exercising any franchise, or ers not granted, transacting any business, not allowed by its charter, to restrain any certain o'ffifers individuals from exercising corporate franchises not granted, to ^ an account, bring the 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 disposition of the property con- fided 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 ahenations thereof, and generally to compel the faithful perform- ance of duty, to prevent malversation, peculation and waste ; and it shall and may be lawful for the said courts, upon the said bill be- ing filed, to make all such orders, rules and decrees, as may be necessary to accomplish the ends of justice and as are consistent with the usage of a court of equity. Provided alioays^ that the Provisos, decree of a superior court of equity shall be liable to be re-exam- ined on appeal in the same manner as cases between individuals. Jlnd provided also, that the supreme court shall have the same power to cause a jury to be empanelled, or in directing issues to be tried elsewhere as is herein befoj'e provided. Provided ahoays, That in case of fraud by the president, directors, managers or stockholders in any cor])oration, the said court shall have full pow- er to render personally hable to creditors and others injured there- by, such of the directors, managers and stockholders as may have been concerned in such fraud. 11. No body corporate, hereafter to be established in this State, Corporations shall exist for a longer term than thirty years, unless otherwise ^''^^ ^°"» ^° ^-^" provided in the act creating the same. 12. When any act shall have passed creating a body politic and what length of corporate, and the corporators shall, for the period of two years, ^™"^f^^?jyjg |^f neglect or fail to organize the company and carry into effect the corporate priv- intent of the act, or when organized, if they, at any time for two ^ ^^®^' years together, shall cease to act as a body corporate, then such disuse of their corporate privileges and powers shall be considered and taken as a forfehure of the charter. 13. The shares of stock, in all incorporated joint stock compa- shares in in- nies in this State, shall be and they are herebv declared to be per- ?°rP°''^/*''| 1 1 111111- 1 J°'"' stock sonal estate ; and as such may be held by aliens, and may be trans- companies to ferable, under such rules and regulations as the corporation to |'j^jP*^'^®°'^^^ ^^' which the stock pertains may from time to time establish, the same not being incompatible with the constitution and laws of this State. 10. 1831, c. 24, s. 5. 11. 1836, c. 10, s. 1. 12. 1836,0. 10, s. 2. 13. 1836,0. 11. VOL. I. 16 122 COUNTY BOUNDARIES. [ChAP. XXVII. CHAPTER 27. COUNTY BOUNDARIES. AN ACT AUTHORIZING COUNTY COURTS TO SETTLE DISPUTED BOUNDARIES BETWEEN COUNTIES. Section 1. In case of disputed lines between counties, the county court of each county may appoint commissioners to settle them. Section 2. Commissioners to be sworn- paid. -To be 1. Be it enacted by the General Assembly of the State of J^orth Carolina^ and it is hereby enacted by the authority of the same, That In case of dis- whenever there shall be any dispute concerning the dividing line be- puted lines be- tween counties, it shall be lawful for the county courts of each coun- tween counties, . i-i t c-it •• ci-- the county ty, interested m the adjustment oi said line, a majority ot the justices courts of each consenting thereto, to appoint one or more commissioners, on the point commis- part of each county, to settle and fix the line in dispute ; and their sioners to set- report, when ratified by a majority of the justices of each county, shall be conclusive of the location of the true fine, and shall be recorded in the register's office of each county, and in the office of the secretary of state. Commissioners 2. The commissioners, before entering on the duties assigned Jo^be^sworn— them, shall be sworn before a justice of the peace, and shall be al- lowed a reasonable compensation for their labors. To be paid. /^4r (^ /i"' I 2 i-.l'f^ 1836, c, 3, s. 1. 1836, c, 3, s. 2. 0(^ cj . oA ). // /3. ^. f o /^ CA. zt- 25- ^ i- n • 1 • i to the county attorneys' licenses, as well m the superior as county courts, also trustee. all tax fees on suits in equity, shall be accounted for and paid to the county trustees, for the purpose of defraying the costs of State prosecutions and the contingent expenses of the county. Tax on attor- 5. The following tax shall be imposed upon attorneys' licenses, ?o^whom"to^be ^^ ^^^ • ^^^ ^ license to practise in the superior courts, ten dol- paid. lars, for a license to practise in the county courts, ten dollars ; which tax on attorneys' hcenses, shall be paid to the clerk of the court, where the attorney shall first exhibit his hcense for admit- tance to practice, to be accounted for by said clerk, under the same rules, regulations and restrictions as he is obhged to account for taxes on suits. Tax on suits at 6. In all civil suits and indictments tried or disposed of, either ^^^ P^^" in the county or superior courts, the party or parties cast or A convicted shall pay a tax fee of one dollar, which several sums * the respective clerks shall pay over to the county trustee, within three months after the same shall be received by them : Provided^ nevertheless^ the plaintiffs in civil suits shall not be required to pay a tax fee on writs as heretofore. Tax on suits in 7. In suits in equity a tax of two dollars shall be assessed and ^I'^ity ~ '^o^ paid for every subpoena to answer any bill in equity, which tax shall be accounted for and paid over to the county trustee by the clerk and master, in hke manner as tax fees on suits at law are ac- counted for and paid over by the clerks of said courts. Sheriff shall 8. The sheriffs of the respective counties shall collect and over all fines,^'^ receive all fines, amercements, forfeited recognizances, and forfeit- amercements, ures on penal Statutes, imposed, adjudged or decreed by any of the courts of this State ; and all sums of money, by them so col- lected and received, shall pay over to the respective county trus- tees or wardens, entitled to receive the same, within three months after such moneys shall be so collected and received, and shall return a transcript, 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 Eimount from each person so received. Clerk to render 9. The clerks of the several courts shall annually, on or before stat^ement of ^^® ^^^^ ^^Y °^ January in each and every year, make a full and fines, &c. complete return to the respective county trustees of all tax fees, fines, forfeitures, and amercements, which shall have been im- posed, adjudged, or decreed in the preceding year, as well the names of the persons who shall have paid fees as of all those who 4. 1801, c. 587.— 1809. c. 769, s. 1.— 1810, c, 799, s. 2. 5. 1784, c 220, s. 2.— 1806, c. 698, s. 1. 6. 1830, c. 1, s.8. 7. 1786, c. 253, s. 10. 8. 1830, c. 1, s. 11 and 12. 9. 1830, c. 1, s. 13. Chap. XXVIIL] county revenue, etc. 125 have been fined, amerced, or adjudged to have forfeited their recognizance. 10. If any clerk of any of the superior or county courts, or any penalty on clerk and master in equity, or any sheriff, shall fail or neglect to clerk, sheriff, account for and pay over, to the county trustees or wardens of the to^^pay'^ove/'^^ poor of their respective counties, any tax fees on attorneys' county moneys, licenses or suits, or any fines, forfeitures and amercements, as required by this act, or fail or neglect to make the returns specified in this act, the person so offending shall forfeit and pay five hun- dred dollars, to be recovered by the county trustee for the use of the county. 1 1 . The clerk of each and every county and superior court of Clerks and law, and the clerk and master in equity, shall give bond with masterslo o-ive approved security to the court whereof he is clerk, payable to the bond for the State of North Carolina, in the sum of four thousand dollars, con- {"j^^^^^^" ditioned for the due performance of the duties enjoined in this act. 12. In all criminal prosecutions in the county or superior courts, Costs of State when the defendant shall be acquitted and the court shall not think P™^°?j'?;°"V 1 be paid by the proper to order the prosecutor to pay the costs, or where the counties in cer- defendant, if convicted, shall be insolvent and incapable to pay ^^"^ cases, costs, the sheriff, clerk or constable, who may be entitled to fees in said prosecutions, shall render to the county court an accurate fee bill, enumerating the costs due each officer ; and upon pre- senting the same to the county court, it shall be and is hereby declared to be the duty of such court to order and decree, that the county trustee shall pay to them and each of them the amount of their respective fees, as contained in the fee bill aforesaid : Pro- vided^ that the counties shall pay the clei'ks and sheriffs half their lawful fees only, except in capital and clergiable felonies, or pros- ecutions for forgery, perjury and conspiracy. 13. All witnesses, summoned or recognized, on behalf of the Witnesses for State, to attend on any prosecution, either in the superior or county pa^ffb^*^!}!" ^^ courts, where the defendant by law shall not be bound to pay the counties in cer- same, and the court do not order them to be paid by the prosecu- ^^''^ ^'^®^^- tor, shall be paid by the county in which said prosecution was commenced. And in all cases, wherein witnesses may be sum- moned or recognized to attend any of the superior or county courts, to give evidence in any prosecution in behalf of the State, and the prosecuting officer or the court shall discharge the defend- ant or defendants, or in cases where the defendant shall break jail and shall not afterwards be retaken, the court may, if under the circumstances it shall appear to be just, order the certificates of attendance to issue to said witnesses, to be paid as other witnesses in such prosecutions are entitled to be paid. 14. In all cases where the counties are liable to pay costs, those County where- counties, wherein the offences shall have been charged to be com-^^^^j^"^ °^'=1'^^ mitted, shall pay them. And all fines, forfeitures and amerce- to pay costs — Such county to receive the 10. 1808, c. 756.— 1809, c. 769.— 1813, c. 864.— 1S30, c. l,s. ll,12and 13. ^^g ^ 11. 1786, c. 253. s. 12. ' 12. 1820, c. 1043.-1830, c. 1, s. 7. 13. 1819,0. lOOS.— 1824, c. 1253.— 1804, c. 065, s. I, 2 and .'>. 14. 1810,0. 799, s. 1. 126 COUNTY REVENUE, ETC. [ChAP. XXVIII. ments shall be accounted for and paid to the trustee of the county, wherein the offence may have been charged to be committed, whereon such fine, forfeiture, or amercement shall have arisen. County to pay J5 Whenever an inquest shall be held, the county trustee, the costs of m- , . , 1 ^ in -', j u quests. wherem the same may happen, shall pay on the costs and charges of the same out of the county moneys. County courts IQ. The county courts of the respective counties shall make lowM^es to^ " such allowances to their sheriffs, clerks or county attorneys for certain officers extra services, as they may think proper and just, which allow- vices. ances shall be paid by the county trustee out of the county funds : Provided J that in the making of such allowances, or in any allow- ance of any other claim against the county, a majority of the acting justices belonging to such county shall be present. Clerk shall 17. Jt shall be the duty of the clerks of the county courts miTTi hpv nil claims, &c. within the respective counties, if the same shall be thought ad- agauist the visable or necessary and be so ordered by the county court, to book, and fur- number all claims, orders and certificates that may be allowed by ""^^ ^f^h*^*^^^' ^^^® court in which they may act, in a book kept for that purpose, court with a and they shall annually, the day before the county court's proceeding copy annually, ^q ]ay a county tax for the ensuing year, furnish the chairman of the court with a copy of the same : they likewise shall insert the dif- ferent allowances, agreeably to the number, in the tax hst that such clerks supply the sheriffs or collectors with, in order that the same may be collected and paid according to their number and priority. Penalty on the ig. Any county court clerk, neglecting or refusing to perform to number ^ ^^ ^^Y P^^t of the duty enjoined by the last section, shall forfeit and claims, &,c. pay the sum of twenty dollars for every such offence, recoverable before any jurisdiction having cognizance thereof, onehalf to the use of any person who may commence suit for the same, the other half to be applied toward defraying the county tax. And when His compen- any county court shall so direct their clerk to record and number forming'th^r ^^^ county claims as aforesaid, such county court shall and may service. allow the clerk, for all such services, annually, any sum not ex- ceeding four dollars. A statement of 19. The court of each county shall, at the first session after the ceiveFandex- ^^^^ ^^7 of June in every year, cause the proper officer to publish pended for and set up, in some part of the court house, an account of the poses'^to'be set moneys received the preceding year, by taxes or otherwise, stating up in the court also what application hath been made of the same, to whom paid, °"^^' and what claims, if any, against the county remain undischarged. County court 20. It shall be the duty of the county courts, a maiority of the may lay taxes .... ■' , •' n i • 1 1 for the pay- justices bemg present, at the same term annually at which they ap- mentof the point patrol committees for their respective counties, as by law directed, to lay a tax of not more than ten cents on each taxable slave in said county, which tax shall be levied and collected by the sheriffs of the several counties in the same manner as other 15. 1803, c. 644. 16. 1790, c. 331, s. 1.— 1830, c. 1, s. 17. 17. 1793, c. 387, s. 1. 18. 1793, c. 387, s. 3 and 4. 19. 1786, c. 255, s. 4. ' 20. 1830, c. 16, s. 2 —1790, c, 331. s. 1.— 1335, c. 22, s. 1. Chap. XXVIIL] county revenue, etc. 127 taxes, and be applied, under the direction of the county courts, to defray the expenses of the patrol ; Provided^ that in the county of Camden, a tax, of not more than twentyfive cents on each taxable slave in said county, may be levied and collected in the manner and for the purposes aforesaid. 21. The several county courts shall have full power and author- County court ity to lay a tax, for the purpose of paying their jurors a sum ade- j^^^J^^ ^^^^^ quate to their services, which shall not exceed one dollar and fifty ment of jurors, cents, nor be less than fifty cents per day, and a sum equal to the daily allowance for every thirty miles travelling to and from said court. Provided^ nevertheless, that a majority of the justices of said county be present when the said tax shall be laid, and that said tax may be laid on all the real estate and taxable polls in the county, and collected and accounted for as other county taxes are now, or may hereafter be accounted for. 22. The county courts in this State are respectively invested Power of the with full power to direct the application of all moneys arising by disposing'of '" virtue of this act, to and for the purposes herein mentioned, and the county to any other good and necessary purpose for the use of the county. 23. It shall and may be lawful for the court of pleas and quarter County court sessions in each and every county, at any court which shall happen three persons after the first day of August in each and every year, a maiorily of^o^^^tas a the justices of the peace of said county being present, if such court finance, shall deem it expedient, to appoint three persons of skill and pro- bity to act as a committee of finance, whose duty it shall be to ex- amine 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 said counties, and the sheriffs, county trustees, or any other officers or commissioners, er" of'^suclT"^" who may hold any moneys belonging to said counties ; and the committee, said committee are hereby authorized and empowered to call on each of said clerks, at their offices, to lay before them for inspec- tion such records, documents and papers as aforesaid, and call on such sheriffs, county trustees, and other officers or commission- ers of their respective counties, to meet them at the court house of such counties, to audit and settle their respective accounts, at such time as said committee may designate. 24. It shall be the duty of said committee to make a full investiga- Committee to tionof allthe financial concerns of their respective counties, and make {jCTation" of all a fair and true return to the said courts at the end of each financial the financial year, setting forth a full statement of their investigation, designa- county"and ting therein all moneys due from their respective counties to indi- make return to viduals, as w"ell as those sums due by individuals to the counties ; end of each fi- and each member of said committee shall receive an allowance not nandal year, exceeding two dollars per day for each day he shall be necessarily ^p^i^ittee^ 21. 181.5, c. 891, s. 1. 22. 1777, c. 129, s. 4. 23. 1831, c. 31, s. 1. 24. 1831, c. 31, s. 2. 128 COUNTY REVENUE, ETC. [ChAP. XXVIII. employed on said committee, to be paid by the county trustee out of any funds of the county ; and all such allowances shall be made upon proof, to the satisfaction of said courts, by the members of said committee, of the number of days they were employed in the duties prescribed in this act. Any officer ^^- If said clerks, sherifis, county trustees, or other officers or failing to set- commissioners, who may hold any county money, shall fail, neg- ing^erdayT^^sct or refusc duly to account for the same, the committee of notice, to lor- finance shall give such person ten days previous notice, in writing, dred°dolla"rs' 0^ the time and place at which they will attend to make said settle- ment, and every officer receiving such notice, as aforesaid, and failing to make settlement, as required by this act, shall forfeit and pay the sum of one hundred dollars, to be recovered by action of debt before said court ; which suit shall be brought in the name of the State, and shall be prosecuted at the expense of the county, unless said county court shall release said officers from said for- feiture, which they are hereby authorized to do. Oath to beta- 26. Every person appointed by virtue of this act a member of ken by the the Committee of finance, shall, previous to his entering upon the conunitTee. ^duties thereof, take the following oath, which shall be administered by the courts aforesaid, to wit : I A. B. do solemnly swear or affirm as the case may be, that I will faithfully perform the duties imposed on me by law as a member of the committee of finance for the county of in all business that shall come before me, without doing injustice to the county or to individuals, to the best of my knowledge and ability, so help me God. Penalty for re- 27. If any person, who shall be appointed a member of the ^^^th^ ^° ^^'"y.® committee of finance as aforesaid, shall refuse or neglect to ^erve tee. or do his duty as a member thereof, he shall be liable to pay a pen- alty of fifty dollars for his refusal or neglect aforesaid, to be re- covered before any jurisdiction having cognizance thereof, to be sued for in the name of the State ; Provided, that no person shall be compelled to serve as a member of said committee for a longer time than three years. Officers having 28. It shall be the duty of the several clerks, sheriffs, county claims against trustees, and other officers or commissioners, who may have the county how , . ' , , , . . . , ,. / to proceed. clamis or demands on their respective counties, to deliver the same to the committee of finance for their examination and inspection, whose duty it shall be to make out two fair and correct statements of each settlement by them made by virtue of their appointment, one of which, after having been submitted and passed upon by the court, shall be filed with the clerk of the county court, and the other kept by the committee for their own use. Clerk to fur- 29. It shall be the duty of the clerks of the county courts, to nish the com- fijmish said committees with a statement of all sums allowed by mittee with a, .,..,, • r i ^ i statement of the county courts to individuals, setting lorth the several amounts the sums al- g^,^ ^q whom made. lowed by the county court. 25. 1331, c. 31, s. 3. 26. 1831. c. 31, s. 4. 27. 1831, c. 31, s. 5. ■ 28. 1831, c. 31, s. 6. 29. 1631,0. 31, s. 7. Chap. XXIX.] county trustees. 129 30. It shall be the duty of the committee of finance, appointed under this act, and they are here by empowered to institute suits for the recovery of all moneys, found to be due to their respective counties, from any person liable to account as aforesaid, before any jurisdiction having cognizance thereof ; which said suit or suits shall be brought in the name of the State, for the use of the county ; and in case the plaintiff shall succeed, the defendant shall pay the costs, but if the defendant shall succeed, the county shall pay the costs. 31. In case any vacancy in any committee, appointed by said justices as aforesaid, shall be occasioned by the death, removal, or refusal to act, incapacity, or inability of any one or two members appointed to serve on said committee, then it shall be the duty of the next court of pleas and quarter sessions for said county, that shall be holden after such vacancy happens as aforesaid, and the said court, seven justices being present, is hereby authorized to appoint some person or persons to fill such vacancy ; which per- son or persons so appointed shall have the same powers, and be subject to the same penalties, in case of refusal or neglect to serve and do their duty, as those appointed by said justices as aforesaid. 30. 1831, c. 31, s. 8. 31. 1831, c. 31, S. 9. Committee may institute suit for the re- covery of money belong- ing to the county. County court to fill vacancies in the commit- tee. Note. — References to Adjudged Cases, Sec. 1. Lockhart »s. Harrington, 1 Hawks, 408. Sec. 3. Cameron vs. Campbell, 3 Hawks, 285. CHAPTER 29. /^4^-?• L COUNTY TRUSTEES. AN ACT PROVIDING FOR THE APPOINTMENT AND DIRECTING THE DUTIES OF COUNTY TRUSTEES. Section 1. County trustee how to be appointed. 2 How vacancies to be filled. 3. County trustee to give bonds and take oaths. 4. To collect all moneys due his county. 5. To call on the sheriflT and clerk for the payment of all moneys in their hands due their counties. 6. Clerk and master to settle with the county trustee for tax fees on suits. 7. County trustee to settle with sherifis for claims according to number. VOL. I. 17 Section 8. Compensation allowed county trustee. 9. County trustee to settle with courts annually. 10. Penalty on county trustee for neglect of duty. 11. The county court, a majority of the justices being present, may abolish the office of county trustee and de- volve the duties of such office on the sheriflT. 130 COUNTY TRUSTEES. [ChAP. XXIX. 1 . Be it enacted by the General Assembly of the State of J^Torth Carolina, and it is hereby enacted by the authority of the same, County trus- That the justices of the several county courts of this State, a ma- tees how to be jority of the acting justices being present, shall, during the sitting appointe . ^^ ^.j^^j^ respective courts to be held next after the first day of January yearly and every year, appoint one good and proper per- son to act as a trustee for one year for the purposes herein men- tioned, which appointment shall be entered on the records of the said court : Provided, that no person shall be considered duly elected without receiving a majority of the votes of the justices present. How vacancies 2. In case of the death, disqualification, neglect or refusal to act to be filled. of any of the trustees appointed as above, the court of the county, where such death, disqualification, neglect or refusal shall happen, may proceed to appoint one other good and proper person to fill up such vacancy until the next annual appointment, under the rules and regulations before prescribed, and such trustee, during his con- tinuance in that appointment, shall have the same powers and au- thorities which by this act are given to other county trustees. County trus- ^* ^^^^ person appointed as trustee for the county shall give tees to give bond in such sum, as the court may think sufficient to cover all take oaAs moneys which may be paid to the said trustee for the use of the county, with sufficient security, for the faithful discharge of his duty, payable to the State of North Carolina, to be sued upon and recoveries to be had thereupon in the same manner and under the same rules, regulations and restrictions as are prescribed for suits and recoveries upon the official bonds of sheriffs and other officers ; and such trustees shall take the oaths prescribed for pubhc officers, and also an oath of office. To collect all 4. It shall be the duty of the county trustee, after qualifying moneys due his himself as aforesaid, and he shall have full power aud authority to county. demand, sue for, recover and receive, from the sheriff of the county and from all other persons, all moneys which may be in their hands due and payable to and for the use of such county, which moneys the trustees respectively shall apply as the county court may direct, and to no other use or purpose whatsoever. _, ,, - 5. The county trustees shall annually call on the sheriffs and To call on the i i r i • • • r i n n sheriffs and clcrks ol their respective counties tor the payment ol all moneys, clerks for the t^gt jjjay be in their hands due to the trustees ; and if any sheriff moneys in their or clcrk shall fail to account for and pay the same, then it shall be hands due their t]^e duty of the said trustees, at the first court held for their coun- COUTltlPS ties after the first day of May in each and every year, to move for judgment against such sheriff or clerk, failing to settle as above specified, ten days notice being previously given, and the court shall thereupon award immediate execution against such sheriff or clerk and his sureties for the full amount of the taxes or public money due from the said sheriff or clerk ; and every sheriff or clerk, 1. 1777, c. 129, s. 3.— 1816, c. 901, s. 1. 2. 1777, c. 129, s. 4. 3. 1777, e. 129, s. 3.— 1833,c. 17.— 1811, c. 821, s. 1.— 1791, c. 342,8. 1 and 2. 4. 1777, c- 129, s. 3. 5. 1808, c. 754, s. 1.— 1809, c. 769, s. 5. Chap. XXIX.] county trustees. 131 against whom judgment is so obtained, shall over and above arreara- ges forfeit and pay the sum of one hundred dollars, to be apphed to the use of the county ; and if any trustee shall fail to comply with the requisites of this act, he shall not only be hable for the moneys he may then or thereafter have in possession, but shall be subject to the penalty of one hundred dollars, to be recovered by suit in any court of record, onehalf to the informer and the other half to the use of the county. 6. If any clerk and master in equity within this State shall fail Clerk and mas- or neglect to pay over to the county trustee the tax fees on suits in ^"th'the county equity, in like manner as tax fees on suits at law, such clerk and trustee for tax master in equity, so failing or neglecting, shall forfeit and pay the ^^^^ ""^ ^^^^^* same sums, as the clerks of the superior courts of law upon failure of the like nature, to be sued for and recovered in the same man- ner. 7. The county trustee shall settle with the sheriff or collector County trus- of public taxes, only according to the number of claims beginning ^?jj^°J^^^% at the lowest number, and where there is no trustee in the county, for claims ac- the county court may and shall proceed to settle with their sheriff^"^™^^ ^° or collector of public taxes in the hke manner. 8. The county courts of pleas and quarter sessions shall allow compensation to the trustees of their respective counties a reasonable salary, as allowed coun- c l^ I ■ 1 -r ty trustees. a compensation lor all such services as have not a specitic com- pensation annexed to them. 9. At the first court in each respective county, which shall be County trus- held after the first of June in each and every year, the county ^?j^°^^y"j°^^ trustees of the respective counties shall make settlement with the nually. courts, in which they shall render an account of the whole of their receipt and expenditures, under the penalty of four hundred dol- lars to be recovered by action of debt. 10. In case any trustee of any county in this State shall neglect Penalty on or refuse to do and perform the several and respective duties here- ^.°™^y /™®*^^^ in enjoined or any of them, the person so offending, refusing or duty, neglecting shall forfeit and pay for every neglect or refusal, where another penalty is not annexed, the sum of ten dollars, to be re- covered by action of debt, in the name of the State, to and for the use of the county where the offence was committed. 11. Whenever a majority of the acting justices of the peace of The county any county shall deem it advisable, they may abolish the office of 9°"''^' a major- • ii • 1 f* "} 1 ' 1 1 y inc jU.su** county trustee ; provided notice thereot has been given by adver- ces being pre- tisement in pursuance of the order of the countv court at the pre- ?^"'^','"^y '^^°^" . J L ish trie oiiice ot ceding term ; it shall then be the duty of the sheriff of such coun- county trustee, ty to collect all such sums of monev as the county trustee may and ^"'^. '''^™^^® '^i'® */ •'♦'•' duties or sucii ought to do, and he shall and may use the same remedies there- office on the for as county trustees ; it shall further be the duty of said sheriff ^^^"^• to act as county trustee in the payment of claims, allowed by the 6. 1813,0. 864. 7. 1793, c. 337, s. 2. 8. 1777, c. 129, s. 4. 9. 1792, c. 361, s. 1. 10. 1777, c. 129, s. 5. 11. Amendment. 132 COURT HOUSES, ETC. [ChAP. XXX. county court, to be governed by the same rules and regulations as county trustees ; and it shall be the further duty of such sheriff, so acting as county trustee, to settle with the county court in the same manner and under the same penalties as county trustees are now required to settle ; and whenever any county court shall abol- ish the office of county trustee and impose the duties thereof on the sheriff, it shall be the duty of such court to compensate the sheriff of said county for such additional duties. CHAPTER 30. COURT HOUSES, PRISONS AND STOCKS. AN ACT CONCERNING COURT HOUSES, PRISONS, AND STOCKS, AND PRESCRIBING THE APPOINTMENT AND DUTIES OF THE TREAS- URER OF PUBLIC BUILDINGS. Section 1 . County courts to keep court houses, jails and stocks in repair ; and may lay a tax for that purpose. 2. Jails to have four separate apart- ments. 3. Grand jury at each court shall visit the jail. 4. County court to appoint a treasurer of public buildings — His duty. Section 5. County court to fill vacancies in such office. 6. Treasurer of public buildings to set- tle his accounts annually — Penalty for failing to settle, and how to be proceeded against. 7. What to be done when the treasurer of public buildings recommends al- terations, repairs, &c. 1. Be it enacted by the General Assembly of the State of Jforth Carolina^ and it is hereby enacted by the authority of County courts t^^^ same, That there shall be kept and maintained in good and to keep court sufScient repair, in each and every county in this State, a court and^stocksin house, common jail and stocks, the whole expense of building repair; and whereof, when there shall be occasion, as well as repairing such for^hat^pur-^^ &s are already built, shall be defrayed by the county, wherein the pose. same are situated, and the courts of the several counties respect- ively are hereby invested with full power and authority to lay and collect taxes, from year to year as long as may be necessary, for the purpose of building, repairing and furnishing their several court houses, jails and stocks, in such manner as they shall think proper, and from time to time to order and estabhsh such rules and regulations for the preservation of the court houses, and for the government and management of the prisons, as may be condu- cive to the interests of the public and the security and comfort of the persons confined. 1. 1741, c. 33, s. 1 and 2 — 1795, c. 433, s. 1.— 1816, c. 911, s. 1. Chap. XXX.] court houses, etc. 133 2. The common jails of the several counties shall be provided Jails to have with at least four separate comfortable apartments, one for the [panments!^ confinement of white male criminals, one for the confinement of white female criminals, one for the confinement of debtors, and one other for the confinement of negroes. 3. It shall be the duty of the grand jury in each county, at Grand jury at every court holden for said county, to visit the jail of said county, ^^g-^ 1^^411.^ and examine the apartments in which prisoners shall be confined, and they shall report to the court the condition of said jail and of the prisoners confined therein, and also shall report to the court the manner in which it shall appear to them the jailer has discharged the duties imposed by law. 4. The several county courts, a majority of the acting justices 9°™'^^.'^°"^^^ of the county being present, shall annually at the first court which treasurer of shall be held after the first day of January in each and every year, public ^>'^^^_ appoint a suitable person residing within the county to act as treas- ty? urer of pubhc buildings, whose duty it shall be after having given bond and satisfactory security payable to the State of North Caro- hna, in such sura as may be required, for the faithful discharge of the trust reposed in him, to superintend the public buildings, and from time to time report the state and condition thereof; to recommend alterations, repairs or improvements, together with the sums requisite for carrying such alterations, repairs or improve- ments into effect ; to call to account by suit if necessary, and set- tle with all former commissioners, who may have received county moneys for such purposes ; to hear the complaints of persons con- fined respecting their diet and treatment ; to examine into the con- duct and character of the jailer, and make information thereof to the court or grand jury of the county as circumstances may require ; to 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 ; to see that the same be collected, ac- counted for, and applied according to the intentions of and mean- ing of this act ; and the treasurer, so appointed and qualified, shall hold his office during one year, and, as a compensation for all his services, shall be entitled to retain a sum not exceeding five per cent, of the moneys which may pass through his hands. 5. Whenever the office of treasurer of public buildings shall County court become vacant by the death, removal, resignation or disqualifica- in such^office'f^ tion of any such officer, the several county courts are hereby di- rected to make an appointment to fill such vacancy, until the an- nual term of appointment : Provided^ That no election authorized by this section shall take place, unless a majority of the acting justices of such county be present at said election. 6. The treasurers of public buildings in the several counties shall Treasurer of and they are hereby expressly required, at the term appointed for fn'gsTo settle their election, and previous to the election takina; place, to settle his accounts ' ^ b r ' annually. 2. 1795, c. 433, s. 4.— 1816, c. 911, s. 1. 3. 1816, c. 911, s. 3. 4. 1797, c. 483, s 1 and 3.— 1793, c. 433, s. 2 and 3. 5. 1798, c. 517, S. 2. 6. 1797, c. 488, s. 2.— 1795, c. 433, s. 3. 134 COURT HOUSES, ETC. [ChAP. XXX. their accounts with the courts by exhibiting a fair account of their receipts and expenditures, setting forth the moneys received and at what time, the sums expended, to whom paid, for what use and at what time, a complete transcript of which account shall be posted up in the court house for public inspection ; and if any treasurer shall fail, refuse or neglect to exhibit the same, he shall be hable to be sued upon his bond, and also to such fine in addi- tion thereto as the court may think proper to impose, not exceed- Penalty for ing One hundred dollars ; and if any treasurer of public buildings failing to set- gj^igj^ |-^jj qj. j-gfuse to Settle with the court of his county as above tie, and how to ■ ry • • i- i be proceeded directed, his successor m oince, on givmg mm ten days previous against. notice, shall have full power and authority and is hereby expressly required to enter up judgment in the court of his county, and award execution against the body, goods and chattels, lands and tene- ments of such treasurer, for all such sums as can be made appear to the court he has received for the purposes pointed out in the preceding sections of this act, with interest from the day of receiv- ing such sum or sums ; or if, in settling their accounts any of the treasurers of the pubhc buildings shall fail or neglect to pay the balance which shall appear to be due from him, his successor shall have the same power, on giving similar notice, to enter up judgment and award execution against him for such balance. What to be 7. When the treasurer of the public buildings of any county done when the g^all in his report to the court of such county, recommend alter- treasurer ot, ,•*■, * public build- ations, repairs or improvements to the court house or jail, and the mgs recom- court shall be satisfied of the utility thereof, it shall be lawful for mends alter- ^ , . . , •' . , , ations, repairs, such court, alter havmg previously estimated the expense, to ap- &c. point one or more commissioners, in conjunction with their treas- urer, to contract for carrying the same into effect, but, such con- tract being concluded, the powers of the commissioners shall cease ; and the moneys payable thereon shall be advanced from time to time by the treasurer, who is hereby declared to be solely respon- sible and accountable to the court, as well for the sufficiency of the work as the disbursements of the money. 7. 1795, c. 433, s. 3. Note. — Refehemces to Adjudged Cases. Sect. 1. State vs. Justices of Lenoir, 4 Hawks, 194. CuAr. XXXI.] COURTS, county and superior. 135 CHAPTER 31. COURTS, COUNTY AND SUPERIOR. AN ACT CONCERNING COURTS OF JUSTICE, PRACTICE, PLEAS AND PROCESS. Section 1 . Justices of the peace to be judges of the courts of pleas and quarter ses- sions — At what time tiie said courts shall be held. 2. Said courts may sit six days, if the business require it. 3. One justice may adjourn the court from day to day not exceeding three days until a sufficient number ap- pear to do business. 4. Justices failing to hold court, not to discontinue the court or any process therein. 5. Three justices to hold the terms of said courts — Their jurisdiction. 6. Court may purchase such books as may be deemed necessary — Said court, a majority of the justices be- ing present, may appoint a special court, &c. 7. Penalty on the clerk for abusing the books purchased, &c. 8. Court may lay a tax for purchasing said books. 9. A superior court of law to be holden in each county. 10. The State to be divided into seven circuits. 11. When the superior courts shall be holden in the first circuit. 12. When in the second circuit. 13. When in the third circuit. 14. When in the fourth circuit. 15. When in the fifth circuit. 16. Anson court may be holden two weeks in the fall. 17. When the superior courts shall be holden in the sixth circuit. 18. When in the seventh circuit. 19. Said courts may be kept open longer than one week for the purpose of closing a trial in a capital case. 20. Said courts to be holden by judges — Their powers and jurii ^ ~ . ■'. ^ *' exchange cir- court or courts jn their cu'cuits. cuits. 25. If some one of the said judges shall not attend and hold If no judge at- each of the superior courts, on the day by law prescribed for hold-^!^"^*'^^!^^''^^ ing such courts, the sheriff' of the county or his lawful deputy shall term, the sher- open and adjourn such court, from day to day, until one of the j^^J^'^^j.^^j^' > said judges shall attend and hold the same, or until the third day to day till the appointed for the holding thereof, on which said third day the '^ ^^^' sheriff or his lawful 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 said court had been duly held. 26. The courts of pleas and quarter sessions at the first term County court to which shall be holden after the first day of January next, and once f°om ^hi"fs/of at least in every two years thereafter, shall cause their clerk to lay taxables, taking before them the tax returns of the preceding year for their coun-go^s well^qual- ty, from which they shall select the names of such persons onlyified. as are freeholders and as ai-e well quahfied to act as jurors, a fist of which names shall be drawn out by their clerk and constitute the jury hst ; and if said tax returns shall not contain the names of all the inhabitants of their said county, who in their opinion are well qualified to act as such jurors, they shall cause the names of all such persons to be inserted on their said jury hst, provided all such persons so selected shall by law be qualified to act as jurors ; which jury Hst so made up shall continue for two years in its ope- ration, at the end of which time it shall be the duty of the said continue and be court and they are hereby required to examine carefully the jury examined every lists already made out, and dihgently inquire if any persons quaU- ^° Y<^°-^^- fied to be jurors as abovementioned are omitted, and whether any persons not qualified to be jurors as abovementioned have been in- serted, and if they find that any have been omitted they shall add them to the jury hst to be drawn as above directed, and if they find that any have been inserted not possessing the requisite qualifications, they shall direct the name of such person to be stricken out from the jury list ; and to obtain full information on this subject, the said courts may examine on oath or affirmation any person they may think proper. b f 27. The said courts shall cause the names so contained on their jurors to be iury list to be written on small scrolls of paper of equal size, and drawn for the I • . X. ^ ^ 1 r 1 1 • 1 1 n 1 superior courts, put mto a box to be procured lor that purpose, which shall have and how they two divisions marked No. 1 and 2, and two locks, the key of one are to be QrELWD. to be safely kept by the sheriff of the county, the other by the chairman of the county court, and the box by the clerk of said court ; and the said justices at each and every session of their said court, which shall happen next preceding the sitting of the superior 24. 1821, c. 1079, s. 2. 25. 1806, c. 694, s. 2.— 1777, c. 115, s. 12. 26. 1806, c. 694, s. 1.— 1779, c. 157, s. 2.— 1807, c. 712, s. 1 and 3. 27. 1806, c. 694, s. 1.— 1817, c. 935.— 1810, c. 801. 148 COURTS, COUNTY AND SUPERIOR. [ChAP. XXXI. court of the said county, shall cause to be drawn from the said jury box out of the partition marked No. 1, by a child not more than ten years of age, not more than thirtysix nor less than thirty scrolls, and the persons whose names shall be inscribed on said scrolls shall serve as jurors at the next succeeding superior court to be held for said county. Provided always, that whensoever the county court of such county shall be held within fifteen days of the sitting of the superior court of the same, that then the court preceding such county court shall draw the jury as aforesaid : And The number to said court of pleas and quarter sessions, at each term thereof, shall be drawn for [^ like manner draw the like number of names of persons, who cour"ts"anI how shall serve as jurors at the next term of said court ; and should any drawn. of the jurors so drawn have a suit pending and at issue in the supe- Person^s ^having j,Jqj, q^. county court, or should the name of any justice of the not to be drawn, peace be drawn to serve as a juror in the county court, the several "|°^j"^^^j^^ scrolls with his or their names shall be returned into the partition courts. No. 1 of the jury box ; or if any of said persons so drawn be dead or removed out of the county, the said scrolls with his or their names shall be destroyed ; and in all such cases other jurors shall be drawn in his or their stead, and the scrolls drawn as aforesaid shall be put into the partition marked No. 2.. Provided, that if before the expiration of two years the names of the jurors in the partition No. 1 shall be drawn out, then the whole names shall be put 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 quahfied to serve as jurors, since the making out the jury hst, and whom said court shall deem fit persons to be jurors. On failure of 28. If any county court shall fail or neglect to draw jurors to the county court g^|.gj-,(j ^^^ superior court of the county, or the succeeding term of to draw lurors, r . , ,, , , , "^ r ■, t ■ rr i i i i the sheriff and said county court, it shali be the duty oi the shenit and the clerk clerk assisted ^f g^jj| county court and they are hereby required, in the presence ces may draw of and assisted by three of the justices of the peace of the county, them. ^Q draw from the jury box the same number of jurors, and in the same manner and under the same rules, regulations and restrictions, as prescribed in the preceding sections. County courts 29. Whenever it shall appear to any court of pleas and quarter wftL a^ mry^at scssions that the business thereof does not require the attendance of two of their a jury at every term, it shall be in their power, a majority of the ^'^'^°'" acting justices being present, to pass an order dispensing with the attendance of a jury at more than two terms, which order when so made shall not be rescinded but by a court constituted of a ma- jority of the acting justices. Jurors how to 30. The clerk of said court shall deliver the list of such jurors, be summoned— jjQth of the county and superior courts, to the sheriff of the county, discharged by whose duty it shall be to summon the persons therein named to at- court. 28. 1831, c. 33. 29. 1806, c. 693, s. 9—1828, c. 15. s 2 and 3. 30. 1806, c. 694. s. 1.— 1779, c. 157, s. 6 and 9.— 1830, c, 42. Chap. XXXI.] courts, county and superior. 149 tend as jurors at such courts respectively, which summons shall be served, personally or by leaving a copy thereof at the house of the juror to be summoned at least ten days before the sitting of the court, when the summons is to attend a superior court, and at least five days before the sitting of the county court to which he may be summoned, at which courts respectively said jurors shall appear and give their attendance until duly discharged ; and that there may not be a defect of iurors, the sherifi'may and shall Tales jurors •^ ** '' may be sum- by order of said court summon, from day to day, of the bystanders, moned when other jurors, being freeholders within the county where the court is ^^ecessary. held, to serve on the petit jury, and on any day the court may dis- charge those who have served the preceding day. 31. Every person on the original venire, summoned to appear Penalty on ju- as a iuror at any of said courts, who shall fail to appear and p-ive J'°'■^.f°^"°^^^- , . J , •^•111 T 1 1 1 11 r r • J tending v/hen his attendance until duly discharged, shall lorieit and pay a sum summoned, not exceeding ten dollars nor under four when summoned to at- tend a county court, and twenty dollars when summoned to attend a superior court, to be assessed by the court to which such per- son shall be returned as a juror, to be applied towards defraying the county charges : Provided^ that each delinquent juryman shall Pi'o'^i*" that 1 '11 1* 11" c "x * lUTors snsii have until the next succeeding term to make his excuse lor his non- 'have till the attendance, and if he shall render an excuse deemed sufficient by ^'^'^'^^^^i"? said court, he shall be discharged without costs : And every per- excuse. son so summoned of the bystanders, w^ho shall not appear and serve during the day as a iuror, shall be fined in the sum of two dollars, Penalty on ^ .'J'. ' tales jurors tor unless he can show sufficient cause to be approved by the court, not attending, and the court shall order the clerk forthwith to issue an execution against the body or goods of the delinquent tales juror for such amercement and costs. 32. No sheriff or other officer shall serve or execute any writ lrom\lfx\^toi or other civil process on the body of any juror, during his attend- civil process. ance or going to and returning from any court of record ; any such service shall be void, and the defendant on motion shall be dis- charged. 33. All regular ministers of the gospel of every denomination. Ministers of the and all regular bred physicians or practitioners of physic and sur- ufar'^h^gfcfans gery, shall be exempt from serving as jurors either in the county exempt" from or superior courts. servmgasju- 1 rors. 34. The judges of the superior courts and the justices of the Grand jury how county courts shall direct the names of all the persons returned to ^o be drawn, serve as jurors, at the terms of their respective courts, to be written on scrolls of paper, which scrolls shall be put into a box or hat and drawn out by a child under ten years of age, and the first eigh- teen drawn shall be a grand jury for said court ; and the residue of the names in the box or hat shall be the names of those who are to serve as petit jurors for said court. 35. The people called Quakers shall be competent to serve as ^JJgJ^^to se^'e grand and petit jurors in the trial of all criminal cases, and be enti- as jurors in criminal cases. 31. 1779. c. 157, s. 4 and 9.— 1783, c. 189, s. 2 and -l.— 1804, c. 664. 32. 1779, C. 157, s 10. 33. 1604, c. 668.— 1822, c. 1135. 34. 1779, c. 157, s. U amended. 35. 1814, C. 873. 150 COURTS, COUNTY AND SUPERIOR. [ChAP. XXXI. How the petit jurors shall be sworn in civil causes. How in State cases not capital. Proviso, that the usual chal- lenges shall not be affected. Names of the jurors to be called over in the hearing of the parties be- fore empanel- ling them. Constable to be sworn to at- tend juries. 7^ Actions where to be brought. tied to be sworn in the terms of their own religion, as heretofore prescribed by law and observed in the trial of civil cases. 36. The clerks of said courts shall, at the beginning of the court, swear or affirm such of the petit jury as are of the original panel well and truly to try all civil causes that shall come before them during the term, according to the evidence given thereon ; and if there should not be enough of the original panel, the talesmen shall take the same oath or affirmation to try all such causes as shall come before them during the day ; and in the trial of all pleas and prosecutions for offences, not capital, unless in cases where the court shall otherwise direct, petit jurors of the original panel as well as talesmen shall be sworn or affirmed, as the case may be, well and truly to try all issues of traverse that shall come before them during the day. Provided, nothing herein contained shall be so construed as to prevent the usual challenges in law to the whole jury so sworn or to any of them ; and if by reason of such challenge any juror shall be withdrawn, his place on such jury shall be supplied by any of the original venire, or of the by- standers by law qualified to serve as jurors. 37. The clerks of the several superior and county courts, be- fore a jury shall be empanelled to try the issue or issues in any civil suit, shall read over the names of the jury upon the panel in the presence and hearing of the parties or their counsel ; and it shall be competent for the said parties, or their counsel for them, to challenge peremptorily four jurors upon the said panel, without showing any cause therefor, which challenge shall be allowed by the court. 38. When any constable shall be appointed or summoned to attend any of the superior or county courts (except such as may be appointed to attend the grand jury), it shall be the duty of the clerk, at the time of the first going out of a jury on the trial of any civil cause, to administer an oath to the constable faithfully to at- tend the several juries that shall or may be put under his care during that term, that shall be charged in the trial of any civil cause ; and after the said constable shall be once sworn, as herein mentioned, he shall be considered to all intents and purposes as acting on oath, upon the attendance of every jury that he may be called upon to attend during that term. PRACTICE, PLEAS AND PROCESS. 39. All real actions, actions of ejectment, trespass quare clau- sum /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 deti- nue and replevin, actions of account render, assault and battery, and for the unlawful taking of goods, all actions upon the case, and Y 36. 1790, c. 321.— 1822, c. 1133, s. 1. 37. 1796, c. 452, s. 2.— 1S12, c. 833. 38. 1801, c. 592, s. 2. 39. 1777, c. 11.5, s. 9.— 1806, c. 693. Chap. XXXI.] courts, county and superior. 15] suits for legacies, and for distributive shares of intestates' estates, shall be brought to the court of the county where both parties re- side ; and where the parties live in different counties, shall be brought to the court of either county, at the option of the plaintiff ; and, where the plaintiff shall reside beyond seas, or in a different state or government, shall be brought to the court of the county where the defendant resides : And when any action or suit shaU be tLx°brou^c!iiuo brought -otherwise than is herein directed, such action or suit may be abated on be abated on the plea of the defendant. ^ ^^' 40. No suit shall be originally commenced in any of the No suit to be said courts for any debt or demand of less value than sixty dollars, court^for^an™^ for an unliquidated balance due on any contract or agreement, or claim under for goods, wares and merchandise sold and dehvered, or for work e^jfistin| on' an and labor done, or for specific articles, whether due by obligation, unliquidated n ' . , 1-1 1 1 ^1 account, &c. — note or assumpsit, or tor any judgment which may have been granted nor for a mm over twelve months by a single magistrate and no execution have under one hun- ,, ^"^ „ " P . '^ ,. 11' dred dollars issued thereon, or for any forfeiture or penalty incurred by virtue due by note,&c. of any act of the congress of the United States or the General Assembly of this State ; nor for any sum of less value than one hundred dollars due by bond, promissory note, or hquidated ac- count signed by the party to be charged thereby. 41. If any suit shall be commenced in any of the said county If suit be com- f. "^ /. , 1 1 • 1 11 1 menced in the courts tor any sum of less value than sixty dohars, contrary to the county court provisions of the preceding section, the same shall be abated on fo' ,* smn the plea of the defendant ; and if any suit shall be commenced in dollars due by any of said courts for any sum of less value than one hundred dol-5^'='=°™'> J^ '^?7 lars due by bond, promissory note or liquidated account signed by for a sum under the party to be charged thereby, the same shall be dismissed by °"^. ^""'^'■"^^ the court. note"&c,k ^ 42. If any suit shall be commenced, in any of the said superior ™y ^^ dismis- courts, contrary to the provisions of the fortieth section.of this act, j^ commenced the same shall be dismissed by the court ; and if any suit shall be in the superior commenced in any of said superior courts contrary to the true in- '^""['^ ™"[!'^.'7 1 • 1 r T 1 11 / 1 to the lortieth tent and meaning tfiereot, or it any person shall demand a greater section the sum than is due, on purpose to evade the operation of this act or di'sl^issed'^'^ otherwise, and by the verdict of a jury it shall be ascertained that -yyj^g^g jj^g g^^j^ a less sum is due to him in principal and interest than, by the pro- is commenced visions of the said fortieth section, said superior court has juris- [^ejj,°'vfi^ijf diction of, then and in that case it shall be the duty of the court to less to "be due, nonsuit the plaintiff, and he shall pay all costs. Provided, that if b^^n^nsuitMl^° the plaintiff, or any other person for him, will make an affidavit, unless he files to be filed in the case, that the sum for which his suit is brought is ?hat m*ire1s reahy due, but that for want of proof, or that the time limited for due. the recovery of any article bars a recovery, then and in that case such plaintiff shall have a verdict and judgment for what ap- pears legally proved, any thing to the contrary notwithstanding. Provided, also, that nothing herein contained shall extend, or be Not to extend construed to extend, to suits on bonds, penal bills or other actions |j°fJJo^^®^jg°|^.' 40. 1803, c. 627, s. 1.— 1S04, c. 650 —1820, c. lO-lo, S. 1.— 1793, c. 392.— 1808, C. 741. —1809, c. 765.— 1829, c. 32 4.. 1804, c. 650. —1826, c. 12. 42. 1793, c 392.— 1826, c. 12.— 1808, c. 741. 152 COURTS, COUNTY AND SUPERIOR. [ChAP. XXXI. of debt grounded on a penalty, when the balance due on such bond or penal bill, or other action of debt, is not of less value than the sums in the said section mentioned to be limited for bringing suits in said courts : Jlnd provided further, that no original writ for debt shall be issued by any clerk of the said superior court, against any person residing out of the county of said clerk for any sum under one hundred dollars. The day when 43. The clerk or attorney, issuing process, shall mark thereon to be marked the day on wliicli the same shall be issued, and the sheriff or other thereon and the officer receiving the same in order to execute, shall in like manner dorse the day mark on each process the day on which he shall have received it ; when he re- and every clerk, attorney, sheriff or other officer, neglecting so to do, shall forfeit and pay the sum of one hundred dollars, to be recovered by action of debt, in any court of record having cogni- zance thereof, by any person who shall sue for the same, with costs. Clerks to take 44. No Writ or Other leading process, returnable to any of the fsTuin^^an'^ wdt "^^"^^^ ^^ record within this State, shall be granted or issued by the or other leading clerk or his assistant in office, but under the following regulations Pff^^^??' "j-^f ' and restrictions, to wit, that the clerk, either by himself or his may be dismis- deputy, before issumg any writ or other leading process, take ^^^' sufficient security of the person so applying, conditioned that they will prosecute such suit or suits they may so commence and, in case of failure of such prosecution, pay to the defendant all such costs and damages as may be aw^arded against him by the court having cognizance thereof ; Provided nothing in this section contain- Proviso in fa- ed shall prevent persons from suing in forma pauperis as herein- suin° in^forma ^^^er provided, and when any person, applying for a writ or other pauperis. leading process, shall produce to the clerk an order signed by a judge of the superior court allowing said apphcant to sue in for- ma pauperis, it shall be the duty of said clerk to issue such writ or leading process without requiring bond and security : And if any writ or leading process shall be issued without such security being given or such order made, the same shall be dismissed by the court on motion of the defendant. Clerks to enter 45. When any clerk, either by himself or his deputy in office, names" of par- shall issue any writ or Other process, or any declaration of eject- ties to suits and men t shall be returned into his office and security thereon given as t eir sureties, hereinafter directed, he shall enter the same in a book to be kept by him for that purpose, together with the names of the plaintiff and defendant and the place of their abode, the names of the se- curity or securities for obtaining such writ and the place where they live, and have the same before the court, where he may so officiate as clerk, subject to the examination of such court. Penalty on 46. If any clerk, either by himself or his assistant in office, in^^process^^*^ shall issue any writ or other leading process otherwise than as by the without taking two preceding sections directed, he shall pay to the defendant the secuntj. g^j^^ ^^ ^^^ hundred dollars, to be recovered by action of debt in 43 1777, c. 115, s. 13. 44. 1737, c. 27 6, s. 1.— U Hen. 7th, c. 12. 45. 1787, c. 276, s. 2. 46. 17S7, c. 27G, s. 3. Chap. XXXI.] courts, county and superior. 1 53 the court where such offence shall have been so committed, and also shall forfeit and pay the sum of one hundred dollars for every offence, so committed by such clerk or his assistant in office, re- coverable in any court of record having cognizance thereof, one- half to the use of the person suing for the same, the other half to the use of the poor of the county. 47. Every poor person or persons, which have or hereafter Poor persons shall have cause of action or actions against any other person or ^o^j^^^pj^. persons, either in law or equity, shall have, at the discretion of'pens. any one of the judges of the supreme or superior courts, a writ or writs at law or writ of subpcena in equity, according to the nature of their causes, paying no costs on the same nor giving any secu- rity therefor ; and the courts, to which the said writs may be re- turnable, shall assign to the said poor pei'son or persons learned counsel or attorneys to attend to their cases, which counsel or at- torneys shall attend without fee or reward, and no costs shall be charged to such person or persons by any officer of the court in which such suit shall be brought. 48. It shall and may be lawful, in all cases where there may be when writs tv/o or more defendants, for the plaintiff in any suit in the superi- djfilrtmrcoun- or courts, or in the county courts where one of the defendants ties at the resides in the county, to issue writs directed to the sheriff or cor- turnabiTto t^he oner of each of the counties, where the defendants are most likely county or su- to be found, noting on each process that they are issued in the ^''""'^ ^'^^^ ' same suit ; and when the same are returned they shall be docketed in the same manner as if only one had issued ; and in case any de- fendant or defendants should not be served with such process, the samic proceedings shall be had as in cases of other similar pro- cess which has not been executed. 49. Upon the return of any writ of ejectment to any court hav- The real ing cognizance thereof, the real plaintiff in said writ, his agent or fio^^"Qf pj"j.j^' attorney, at the return court of said writ, shall enter into bond with ment to give a the clerk of the court, to which said writ shall be returned, with |JonX'^"'^°^ good and sufficient security to prosecute the same with effect, or otherwise to pay all such costs and damages as shall be awarded on failure thereof. 50. In all actions of ejectment the person or persons, who shall ^^P""^!^' 1 r 1 • • 1 • 1 11 1 • 1 siring to be make themselves deiendants m said suits, shall on doing the same, made defend- either by themselves, their agent or attorney, enter into bond with ''^"^^ '" ^J^*^^: •'. '.^ i- • r • nient must cfive good and sufficient security to answer such writ or writs of eject- a bail bond.' ment in the court or courts to which they may be made returna- ble, and abide by the determination of the same, which defendant or defendants shall be under the same rules and regulations and liable to the same judicial proceedings, as to all costs and dama- ges that may be awarded against him or them, as principal and bail are subjected to in other civil actions of law in said court. 51. If the lessor of the plaintiff in any action of ejectment, Jj^^fj^gj^^P^g"^ makes an affi- 47. 11 Hen. 7, c. 12. 18. I7sy, c. 314, s. 1 and 2.— 1831, c. 14, s. 2. 49. 1804, c. 058, s. 1. 50. 1S04, c. 65JS, s. 2. 51. 1823, c. llS-1. VOL. I. 20 154 COURTS, COUNTY AND SUPERIOR. [ChAP. XXXI. davit that the his agent or attorney, or if any one of the several lessors, or fefed into the the agent or attorney of any one lessor, shall, at the return land as his ten- term of the declaration in ejectment, file his or her affidavit that fe'ndant shall ^' t^^^ tenant in possession of the premises sued for, and to whom the not plead until notice of the said suit is directed in the process issued, entered forfhrcosts i"to said premises as his or her tenant or as tenant of the person, and damages, as whose agent or attorney said affiant deposes, that said tenant's term therein has expired and that said tenant refuses to surrender the possession of said premises to said lessors or any one of them, said person in possession or any other person made defendant shall not be entitled to plead to said suit, and the lessors of the plaintiff shall be entitled to judgment final against the casual ejector at the said return term, unless the said person in possession or ,jj^ other person applying to be made defendant shall enter into bond, in such sum as the court shall direct, with surety to be approved by said court, with condition that said defendant or defendants shall pay the said lessor or lessors all such costs and damages as shall be What facts in recovered in said suit ; and it shall be the duty of the jury in such jury ar?to find, cases, where issue may be joined, to find in their verdict whether the defendant entered into possession of the premises as the tenant of the lessors or of which of them, and whether he refused to sur- If they find render the premises after his term therein had expired, and, if such for the plaintiff f5u{Jing shall be in favor of the lessors of the plaintiff, such jury sess damages shall assess the damages to which the lessors of the plaintiff shall % the occupa- h@ entitled, including the value of the occupation of the premises ' "' sued for from the expiration of said tenant's term to the rendition of the verdict, and dam.ages for waste and trespass during the time of said holding over, and the court shall render judgment against the defendant and his securities upon their said bond, to be dis- charged by the payment of the damages assessed as aforesaid and the payment of all costs, judgment upon which verdict shall bar Defendant may the action for the mesne profits or for the trespass by any of the rebut plaintiff";s lessors in said action. Provided nevertheless, that it shall be com- own'^&c. ^ ^^petent for the defendant or tenant in possession to rebut, by his or her affidavit, the facts set forth in the affidavit offered on the part of the lessor of the plaintiff, and the court in such cases shall decide thereon and may in its discretion allow the affidavits on either side to be corroborated by other affidavits or evidence. . 52. Whenever any plaintiff in ejectment shall fail to give his ejectment does bond for prosecuting his suit as before directed, the court shall on not give secu- niotion dismiss the suit ; and whenever any person or persons may be dismissed, be desirous of becoming defendant or defendants in any suit in Defendant to ejectment, they shall give bond as before directed or be in custody fn^custody be- of the sheriff, before they or their attorney shall be permitted to fore pleading, plead. Writs and 53. All writs and other civil process, except subpoenas returna- cess,'^whento°' hie immediately, shall be returned the first day of the term to be returned, which the same shall be returnable, and shall be executed at least ten days before the beginning of the term, when returnable to a su- 52. 1804, c. 658, s, 5. 53. 1777,0. 115, S. Hand 67. Chap. XXXL] courts, county and superior. 155 perior court, and at least five days before the beginning of the terra, when returnable to the county court ; and if any original or mesne process shall be taken out, within the time above specified, before the beginning of any of the terms of said courts from which they respectively issued, such process shall be made returnable to the How ion? be- term next succeedinsf that which shall commence within the times ^°^^ ^""l"^ ^° ^^ O _ CXBCUtGCl. above specified after taking out such process, and not otherwise ; and all process, made returnable at any other term, or executed at any other time or in any other manner, than is by this act directed, shall be adjudged void upon the plea of the defendant. 54. When any sheriff shall return that he hath taken the body ^^urng^thafhe of any defendant and committed him to the prison of his county, has defendant which is hereby declared to be the proper place for such commit- '"aint'ff shau'^^ ment, the plaintiff may enter the defendant's appearance and he proceed, shall be at hberty to plead, as if such appearance had been entered by himself, and the plaintiff may proceed as in other cases as in this act directed ; nevertheless the defendant shall not be discharg- ed out of custody but by putting in bail or by rule of court. 55. No female whatever shall be taken or imprisoned for debt, ^^o female shall 56. When the sheriff shall make return in any civil action that imprisoned for the defendant is not to be found in his county, the plaintiff may, <^^bt- at his election, sue out an attachment against the estate of such de- ^S.^ ^^^ ^Iaui- fendant, or an alias, or pluries capias until he be arrested, return- ceed when the able in the same manner as original process ; and if the sheriff shall ^'j*^"^ "l?^"™^ return any goods by him attached, the plaintiff shall file his declar- ant is not to be ation according to the rules of the court, and if the defendant shall found, fail to appear and plead within the time herein directed, the plain- tiff shall be entitled, if in an action of debt, to final judgment, and, if in an action on the case, to an interlocutory judgment, and in consequence thereof, may execute a writ of inquiry the next suc- ceeding term ; and the goods so attached, if not replevied or sold according to the rules prescribed for goods taken on original at- tachment, shall remain in the custody of the sheriff until final judg- If goods be ment, and then be disposed of in the same manner as goods taken judicial attach- in execution on a writ o[ fieri facias, and if the iudgment shall not '"*^"t' ^"d be , t/ */ ' ^ ^ %f c/ _ not rGplcvied be satisfied by the goods attached, the plaintiff may have execution they may be ' for the residue. ?oJd on final 57. And when any defendant, in a writ sued out of a superior when a sheriff court, or out of a county court where there is more than one de- returns that fendant and one of the defendants resides in such county, shall be Is not'an^fn^hab- a known inhabitant of any other county than that of the sheriff, to itant of his, whom such process shall be directed, the sheriff shall return the I^o^nty^^n°'^" truth of the case, and thereupon an alias shall issue directed to the alias shall is- sherifF of the county where such defendant resides, and variance tywhere'^t'lKr'^" of the addition of the place of abode of the defendant shall not be defendant re- deemed error or matter of abatement. ^^,.^^' 58. It shall not be lawful for any sheriff or other officer to exe- ^hi'tfi^ t^^e 54. 1777, c. 115, s, 18. 55. 1823, c. 1209 amended. 56. 1777, c. 115, s. 23 and 71. 57. 1777, C. 118, S. 5. 58. 1777, c. 118, s. 6. 156 COURTS, COUNTY AND SUPERIOR. [ChAP. XXXI. sheriff shall cute any writ or other process, upon a Sunday, or upon any per- civif process. ^^^ attending his duty at a muster of the mihtia, or at any election of members of the General Assembly, or of member of congress, or electors of president and vice-president, or of any officer of this State, or upon any person summoned to attend as witness or juror ; and all such services of process are hereby declared illegal and void, unless the same be issued against any person or persons for treason, felony, riot, rescous, breach of the peace, or upon escape out of prison or custody, and such process shall and may be exe- cuted at any time or place. If there be in 59, If at any time there should be no proper officer in any proper office" to county in this State, to which any process, original, mesne or execute pro- final, of any coui't of record shall or ought to be directed, who can fuse'to do so, lawfully scrve or execute the said process, or if there be such any judge may officer, who shall rcfuse or neglect to execute the same, any judge sheriff of an of the superior courts of law and equity, or any judge of the supreme ad joining coun- court, the Same being; made to appear to him, shall authorize and tv to f XGCUtG A JL the same. Command the sheriff of any county adjoining the one, to which the said process shall or ought to be directed, to serve and execute said process, who shall have the same powers and be subject to the same rules and receive the same fees, as the sheriff of the county should or might have and receive. Additional QQ. Whenever any process shall be directed to any sheriff of compensation !••• i i ri -I'l-i to sheriffs for an adjomnig county, to be served out 01 the county, m which said executingpro- sheriff shall reside, such sheriff shall for such service have and re- cess out oi their . 1 1 /■ 11 11-11 1 /• 1 county. ceive not only the tees allowed him by law, but as lurther com- pensation shall be allowed five cents for every mile he may be compelled to travel in going to and returning from serving the said process : Provided, nevertheless, that whenever any writ of jien facias amounting to five hundred dollars or upwards, shall be di- rected to any sheriff of an adjoining county, under the provisions of this act, then and in that case such sheriff shall not be allowed mileage, but the commissions, to which such sheriff shall be enti- tled, shall be deemed a sufficient compensation for serving said fieri facias. Sheriff failing 61. Every sheriff or coroner, who shall fail duly to execute and returrprocess ^'stum all process to him directed, shall be subject to a penalty of to forfeit one one hundred dollars for each neglect, to be paid to the party lars'^and'be'al-S^'^^^®*^' V Order of the court, upon motion and proof that the so liable to in- process was delivered to him twenty days before the sitting of the court, to which the same is returnable, unless such sheriff or cor- oner can show sufficient cause to the court for his failure at the court next succeeding such order ; and said sheriff or coroner, for every such neglect duly to execute and return process delivered to him as aforesaid, shall be further subject to indictment in any court of record, and on conviction shall be fined or imprisoned at the discretion of the court. 59. 1821, c. 1030—1822, c. 1132, S. 1.— 1779, c. 156, s. 3. 60. 1822, c 1132, s. 2. (51. 1821, c. 1110. dictment. Chap. XXXL] courts, county and superior. 157 RULES OF COURT. 62. The following rules and methods shall be observed in said l^^les of court. courts, to wit : The plaintiff, by himself or his attorney, shall file his Pg^fi\^g'?^';/V'' declaration in the clerk's office, on or before the third day of the the three first term to which his suit shall be broueht ; otherwise the suit shall be '^^^'^ °^ ^.^^ o ^ term or triG dismissed by the court at the costs of the plaintiff. suit may be The defendant shall appear and plead or demur at the same term dis'^ssed. to which the writ shall be returnable ; otherwise the plaintiff may appear and ° have judgment by default, which in actions of debt shall be final, plead or demur unless where damages are suggested on the roll, and in that case ^erm.^ ^^"'^ and in all others not specially provided for, where the recovery shall be in damages, a writ of inquiry shall be executed at the next succeeding term. Provided, that where the nature of the When special action requires special pleading, the time for pleading may be en- ^J^'Jg^"^ jj^e '^®" larged. And provided further, that where a plaintiff shall obtain time may be judgment final, at the first term to which the process shall be re- !^ ^"^""l .' turned, in an action of debt, it shall be lawful for him to execute as to the value his inquiry the same term, as to the value of any foreign currency °^ foreign cur- 1 •>,.,, '. , , , •' ° •' rency to be ex- or money lor which the suit may be brought. ecuted at the Where defendant pleads specially, the plaintiff shall reply or ^^'^? ^"'"^ '^^^^^ demur at the same term at which the plea or demurrer is filed, or pij^^j^^j^ ^^ j.^. a non pros, may be entered by the defendants ; and if the plaintiffply ordemurat replies and in his replication tenders an issue, the defendant shall l^t^^^'f ''^™^' • . . • ■ ■ CJtllGr DIGEIS to join issue or demur at the same term, otherwise the plaintiff may be filed and is- have judgment ; and where the defendant reioins to the plaintiff's ®"®?^ "^'^'^'^ "P . . •^ ■*■ 3,1 t[16 S3.1116 replication, he shall file his rejoinder at the same term, or judg-term. ment shall go against him, unless the time for pleading shall be en- larged as aforesaid. When a special verdict shall be found, a case agreed, a demurrer Time may be /., 1 1 -n r • 1 -1 IT- allowed to ar- med, or a bill 01 exceptions to the evidence tendered, time may ^ue demurrer, be allowed upon motion of either party to the next term to arsue ^l of excep- , ^ 1 ./ o tions, &c. . the same. In any matter or suit depending in any of said courts, either Parties may en- plaintiff or defendant may enter his own pleas and defend his own ^*;'' ^^^^"^ "^'^ cause ; and no instrument oi writing, which contains the substance, shall be lost or destroyed for want of form. For the better preservation of the records of the courts, when Clerk to enter any cause is finally determined, the clerk of each court shall enter courtTn a^wdl all the proceedings therein in a book well bound, and an entire and bound book. perfect record make thereof. ■^ . 1, . 1 11 1 /> • t Jm'Y causes to All jury causes shall be first tried. be first tried. All motions in arrest of judgment shall be argued within the Motions in ar- three last days of the term, in which the issue shall be tried, the ^g|^^°jg'',^g^|j.. defendant's attorney first serving the plaintiff's attorney with a copy gued when. of the reasons in arrest of judgment, unless upon sufficient cause shown and approved of by the court further time shall be allowed. Arguments on writs of error, special verdicts, cases agreed, 62. 1777, c. 115, s. 24, 34 and 73.— 1779, c. 138, s. 2.— 1735, c. 233, s. 3. —1786, c. 253, s. 2, 3 and 6.-1796, c. 451.-1793, c. 496, s. 1 and 2.-4 Anne, c. 16, s. 4. 15S COURTS, COUNTY AND SUPERIOR. [ChAP. XXXI. Argument demuiTers, petitions for legacies and distribution of intestates' es- uf brargued!"^ tates, shall be heard upon the four last days of the term. No plea in No plea in abatement shall be received in any of the said courts, bere^ceived," unless the party offering the same shall by affidavit or otherwise but on affidavit prove the truth of such plea. w^en°plea in Where a plea in abatement shall be pleaded and upon argument abatement is the same shall be adjudged insufficient, the plaintiff shall recover pldnt^iF shall against the defendant full costs to the time of overruling such plea, recover costs, including the costs of court ; and the plaintiff in replevin or de- as*ma^y"be^ ^^^ fcudant in any other action may plead as many several matters as thought neces- may be necessary for his defence, so that he may not be permitted pleaded?^ ^ to plead and demur to the whole. A plea since The entering a plea since the last continuance of a suit at law the last coiitm- gj^gj] j^^ ^^ p^gg -whatever be construed a relinquishment of any nance, not to . i i , i i, •'• i i-i /• be a waiver of plea previously entered, but the same shall retam the like force former pleas. ^^^ operation, which it would have had if such plea since the last continuance had not been entered. All issues to be ^j] igg^es, whether general or special, shall be heard and tried succeeding the next succeeding term after the issue shall be made up, unless term after be- \yy consent of parties or on sufficient cause shown to the court by No cause to be affidavit filed such cause should be continued ; nor shall any cause contmued but jjg continued at any term but by consent or on affidavit showing by consent ot . j j o parties or on Sufficient CauSC. affidavit. Whenever it shall be the opinion of the court that the party Court may or- . . , i, ^ , • • • i r ^ "^ der a party con- praying a Continuance shall not obtain it without payment ot costs, tinuinga ^j-^g ^yhole of thcse costs shall be paid before the continuance is cause to pay i i i • i in i ■ i i costs. granted, and the party paying such costs shall not be entitled to recover them, although the judgment of the court shall finally be in his favor. Not more than It shall not be lawful for either plaintiff or defendant to employ, speak in"anV° ^'^^ ^""y matter or suit, more than one attorney to speak in such cause. matter or suit in court, and the courts in this State are hereby di- rected not to suffer more than one attorney, as aforesaid, in any matters whatever, to plead for either plaintiff or defendant to any suit, under penalty of a violation of this section. Every attorney Every attorney in any of the courts of law and equity in this appearing in State, wlio shall claim to enter an appearance for any person or any cause to ' . r • ^ i n i • • i i produce and persous HI any ot said courts, shall, upon being required so to do, hie a power of produce and file in the clerk's office of the court, in which he attorney ii re- ^ ' . quired. shall SO claiHi to enter an appearance, a power or authority to that effect signed by the person or persons or some one of them for whom he is about to enter an appearance, or by some person duly authorized in that behalf, provided that when any attorney in any When it is of said courts shall claim to enter an appearance by virtue of alet- thrattm-nev'to^^'^ *° ^™ directed, whether such letter purport a general or par- retain the pow- ticular employment, and it shall be necessary for said attorney to be done.''' retain said letter in his own possession, he shall, on the produc- tion of said letter setting forth such employment, be allow^ed to enter his appearance, and it shall be the duty of the clerk to note to that effect upon the docket. enter an™p^ '° ^° attorney shall be permitted to enter an appearance for his Chap. XXXI.] courts, corxxY and superior, 1o9 client or clients, without producing to the court when required pearaace, nnul such power or letter, and upon his failure to do so, the sarne pro- p^^,^^^ ceedinss shall be had thereon as in cases where no appearance is reqioired. entered. 63. In all actions brought in anv of said courts on anv bond or ^ ^H°°^ /^'^ bonds, or on any penal sum for the non-pertonnance of any cove- &£. plaintiff nants or agreements in any indenture, deed or writing contained, ^^-^^^s^ the plaintilf or plaintiffs may assign as many breaches as he or they as Le thinks fit. shall think fit, and the jury on the trial of such action or actions shall and may assess, not only such damasces and costs as have heretofore been usually done in such cases, but also damages for such of the said breaches, so to be assigned, as the plaintiff upon upon the trial of the issues shall prove to have been broken, and the like judgment shall be entered on such verdict as heretofore hath been usually done in such like actions ; and if judgment shall be given for the plaintiff on a demurrer, or by confession OJ^ if judgment he nihil cicit., the plaintiff upon the record may suggest as many giTen for the breaches of the covenants and agreements as he may think fit, ^nn-er. &c. hr upon which a jury shall be empanelled to inquire of the truth may sn^rest as of any one of those breaches and to assess the damajes, that ^^le^roil &s the plaintiff shall have sustained thereby, which inquiry by the iie thinks fit. jury shall be made as in other cases of judsment by default ; and in case the defendant or defendants, after such judzment ^w^i^ a . • jin -l" Defendant may entered and beiore execution executed, shall pay mto the court, pay dairages where the action shall be brouaht, to the use of the plaintiff or and costs mto , . . ^ ,. ,. - 1 • • 71 co'iTt. and u so plamtiffs or his or their executors or administrators, such dam- no execution ages so to be assessed by reason of all or any of the breaches ^^'^ ^^^• of such covenant, together with the costs of suit, a stay of exe- cution of said judgment shall be entered on record ; or if by rea- son of any execution executed, the plaintiff or plaintiffs or his or their executors or administrators shall be fuHy paid or satisfied all such damages so to be assessed with his or their costs of suit, and all reasonable charges and expenses for executing the said execu- tion, the body, lands or good^ of the defendant shall be thereupon forthwith discharged from the said execution, which shall likewise be entered upon the record, but notwithstanding, in each case such jadsment shall judgment shall remain, continue and be as a farther security to an- r°^'^°° ^^ swer to the plaintiff or plaintiffs, and his or their executors and ad- for fiirther ' rainistrators, such damages as shall or may be sustained for further ^'*^'^^-- breach of any covenants in the same indenture, deed or writics contained, upon which the plaintiff or plaintiffs mav have a scire facias upon the said judgment, against the defendant or against his heirs or his executors or administrators, susgesting other breaches of the said covenants or agreements, and to summon him or them respectively to shew cause why execution shall not be had or awai'ded upon the said judgment, upon which there shall be the like proceedings, as were in the action of debt upon the said bond or obligation, for assessing of daraases upon trial of issues joined upon such breaches or inquiry thereof upon a writ to be award- ed in manner as atbresaid, and upon payment or satisfaction in 63. 8 and 9 Will. 3. c. 11. s. 3. 160 COURTS, COUNTY AND SUPERIOR. [ChAP. XXXI. manner as aforesaid of such future damages, costs and charges as aforesaid, all further proceedings on the said judgment are again to be stayed and so toties quoties, and the defendant, his body, lands and goods shall be discharged out of execution as aforesaid. Rules for tak- 64. In taking the testimony of witnesses in all causes which and .summon^ may be depending in the superior or county courts, the following ing witnesses, rules shall be observed and put in practice, to wit : Subpoena for In all suits wlicrc witnesscs are to appear at any of the said to^issue!^ ^°^ courts, the clerk at the request of the party shall issue a subpcena, directed to the sheriff or other officer of the county where such witness or witnesses are said to reside, mentioning the time and place for his, her or their appearance, the names of the parties to the suit, wherein the testimony is to be given, and the party at whose instance such witness or witnesses is or are summoned. Subpoena re- Every subpoena made returnable immediately, shall be issued turnable imme- only in term time, and shall be personally served on the witness or diately, when . •' .i • j to issue. Witnesses therem named. How subpoena A copy of every subpcena issued by the clerks in the vacation, maybe served, jjj cagg j}jg witness or witnesses therein named is or are not to be found, may be left at their usual place of residence ; and such copy, certified by the sheriff or other officer, left as aforesaid, shall be deemed a legal summons, and the person or persons therein named shall be bound to appear in the same manner as if person- ally summoned. Witnesses to 65. Every witness, being summoned to appear in any of the ter^'^'to te"^ Said courts, in manner as herein before directed, either in a civil till discharged, suit or in a criminal prosecution or plea of the State, shall appear accordingly and continue to attend from time to time until dis- charged, when summoned in a civil suit, by the court or the party at whose instance such witness shall be summoned, or when sum- moned in a criminal prosecution or plea of the State, until dis- charged by the court, the prosecuting officer, or the party at whose instance he was summoned ; and in default thereof shall forfeit and pay, to the party at whose instance the subpoena issued, the sum Penalty on wit- of forty dollars, and shall be further liable to the action of said nesses for non- pa^-ty for the full damages which may be sustained for the want of a.ltenu3.n.cc. r j _ o ^ such witness's testimony, who shall recover the same by scire facias with costs ; or, if summoned in a criminal prosecution or plea of the State, shall forfeit and pay the sum of eighty dohars for the use of the State, unless, upon notice issued and made known, sufficient cause be shown at the next court for such failure, in which case his forfeiture shall be remitted and he shall be dis- charged from all costs. Witnesses 66. Provided always, that if it shall so happen that the civil suit tied to pay\f depending shall, in the vacation, be accommodated and settled they attend between the parties, and the party at whose instance such witness settledTn^vaca- was summoned should neglect or omit to discharge him or her tion, unless vo- tifi^d. 64. 1777, c. 115, s. .36. or>. 1777, c. 115, s. 37 and 43.— 1301, c. 591. 66. 1777, c. 115, s. 38. Chap. XXXL] courts, county and superior. 161 from further attendance, and he or she for want of such discharge should attend at the next term, then and in that case the witness, upon oath made of the facts, shall be entitled to a ticket from the clerk in the same manner as other witnesses, and shall recover from the party, at whose instance he was summoned, the same allowance which by this act is given to witnesses for their attend- ance at said court with costs : Provided, also, that if any witness Ji faYsehTto '^' shall swear falsely in order to obtain a ticket, he shall upon con- obtain a ticket, viction be adjudged guilty of perjury and suffer as in cases of cor- ^^^^^ "^ P^'^'" rupt and wilful perjury. 67. Jlnd provided further, that if, at the next succeeding term How witnesses f.., -Ta:-* 1,1 1,^1 *hall be exon- oi said court, sumcient cause be shown by the person so sum- erated from moned and failing to appear of his or her incapacity to attend at forfeiture and the time and place mentioned in the subpoena, then no forfeiture attendance.'^' or penalty shall be incurred by such failure, and said witness so exonerated shall not be subject to any costs which may have accrued ; but, if on notice given by the court, sufficient cause be not shewn at the next succeeding term after such failure, it shall and may be lawful for such court, on motion, to grant judgment and award execution, for the forfeiture before mentioned, against the person so summoned and faihng to appear as aforesaid. 63. When any person, who may be a witness in any civil cause In what cases in any of the said courts, shall reside out of the State, or shall, by J-t'^ess^eTmay reason of age, bodily infirmity or other cause, be incapable of be taken, attending to give his testimony in court, or shall be in a dangerous state of health, or about to leave the State, or be a prisoner con- fined in jail, oath thereof being made, or the truth of the matter otherwise appeai'ing, or when either party to a civil suit shall require the testimony of the governor, the secretary of state, the treasurer, comptroller, or any judge of the superior or supreme courts, or of the attorney general, or any of the solicitors of the State in the trial of said suit, the court wherein such suit is depend- ing shall and may by commission empower such and so many persons as may be thought necessary, to take and receive the deposition of such witness, which being duly taken and returned, as hereinafter is directed, shall be received as legal testimony ; and in all cases, where depositions are taken in a court of law, it cierk to pass shall be lawful for the court to direct the clerk to pass upon such "p?n all depo- depositions, under the same rules, regulations and restrictions as ^^ ^°'^^" are observed by clerks and masters in chancery in passing on de- positions to be read in chancery. 69. Provided always that the party, praying such commission, Notice to be 1 „ . 1 . "^ , 1 ^ -^ ^ -^ c °i • 11 ' ^-iven to the ad- sliall give such notice to the adverse party oi the time and place, Verse party of when and where such commission is to be executed, as the court ^i]*^ ^™° and shall think proper, and the adverse party shall have power to cross- Lp^i'tion's^"^ examine any witness whose deposition shall be so taken, and all depositions otherwise taken than as herein directed, unless by con- sent of parties, shall be void to all intents and purposes. 67. 1777, c. U5, s. 38.— 1799, c. 528. 68. 1777, c. 115, s. 39.— 1803, c. 633 — 1823, C. 24, s. 1 and 2.— 1836, c. 30. 69. 1777, c. 115, s. 40. VOL. I. 21 162 COURTS, COUNTY AND SUPERIOR. [ChAP. XXXI. Under what circumstances depositions of "witnesses may be taken before the cause is put to issue. Notice to be given, &c. Witnesses re- fusing to give testimony in court or before commissioners to be commit- ted. Witnesses du- ring their at- tendance to be exempt from the service of all civil process except subpoe- nas. Pay of witnes- ses for their attendance. After the re- moval of a cause, subpoe- nas and com- missions to take testimony may be issued from either court. 70. If any person, who may be a witness in any cause depend- ing in any of the said courts, shall be under the necessity of leav- ing the State, before such cause is to be tried or even before such cause shall be at issue, or be in a dangerous state of health, upon oath thereof made before any of the justices of the said courts, such justice is hereby empowered to order the clerk of the court, where such cause is depending, to issue a commission to one or more persons to take the deposition of such witness, notice being first given to the adverse party of the time and place, when and where such deposition is to be taken, as follows, to wit : where the party to be notified does not reside or is not more than ten miles from the place where the deposition is to be taken, three days pre- vious notice of the time and place ; in all other cases one day more for every additional ten miles ; which deposition, w^hen returned taken in manner aforesaid, shall be received as legal evidence. 71. If any person, who shall be summoned as a witness in any of the said courts or before any persons appointed to take deposi- tions as aforesaid, shall refuse to give testimony on oath, such per- son so refusing shall, by the court or by the commissioners before whom he shall be summoned, be committed to the common pri- son, there to remain without bail or mainprise, until he shall be wil- ling to give testimony in such manner as the law doth or may di- rect. 72. During the attendance of any person, summoned as a wit- ness to any court whatsoever and during the time that such person is going to and returning from the place of such attendance, allow- ing one day for every twentyfive miles such witness has to travel to and from his place of residence, no sheriff or other officer shall serve or execute on such persons, so attending, going to or return- ing from said court, any writ or other civil process, warrant, order, judgment or decree in any cause (summons for witness excepted) : and if any such shall be executed the same shall be and is hereby declared null and void. 73. Each person, who shall attend any superior or county court as a witness in any cause therein depending, shall be allowed for each and every day's attendance, and for every thirty miles he may travel going to and returning from said court, sixty cents, provided said witness lives within the county, or the sum of one dollar if the said witness fives without the county. Provided, that in counties where witnesses are by law allowed a greater sum than above stat- ed per day for attending county courts they shall continue to be paid as heretofore. 74. When any cause shall be removed from the superior court of any county to another, after the order of removal depositions may be taken in the case, and subpoenas for the attendance of wit- ness and commissions to take depositions may issue from either of said courts, under the same rules as if the case had been originally 70. 1777, c. 115, s. 41.— 1803, c. 633. 71. 1777, c. 115, s. 42. 72. 1777, c. 115, s. 44. 73. 1777, c. 115, s. 45.— 1806, c. 694, s. 9.-1819, c. 1023. 74. 1810, c. 7S7.— 1832, c. 8. " . Chap. XXXI.] courts, county and superior. 163 commenced in the court from which the subpoenas or commissions issued. 75. Every person being lawfully summoned, who shall attend Witnesses to any of the superior or county courts of this State as a witness in P^^^j^^g J[ '^^^ any suit, (those wherein the State is a party excepted,) shall, at each court. each court before the clerk thereof or his lawful deputy, ascertain by his or her own oath or affirmation the sum due for travelling to and from court, attendance and ferriage, which shall be certified by the clerk or his lawful deputy ; and on failure of the party, at How witness whose instance such witness was summoned, to pay off and dis- V\^y recover r 1 • 11 r 1 • /• 1 his pay for at- charge the same previous to the departure oi the witness h'om the tendance, court, it shall be lawful for such witness to sue for and recover the same from the party summoning him or her, at such time as he or she may see proper, before any jurisdiction having cognizance thereof, and the certificate of the clerk or his lawful deputy shall be sufficient evidence of the debt : Provided ahvays, that in any case where recovery may be had before a justice of the peace on a witness ticket or certificate, it shall and may be lawful for such jus- tice, having previously defaced such ticket by writing the word judgment in large letters in the face thereof, to deliver the same to the person against whom recovery is had thereon. 76. At the court, at which any cause shall be finally determin- Y''"^^ ^^^!^^' ed, the party, in whose favor judgment shall be given, shall file or with the clerk cause to be filed the certificates of the attendance of witnesses ii^ !h '^bli^'f^'^A"^ the clerk's office, the amount whereof shall be taxed in the bill ofp^^^^^ ^.j^g^j^ costs, to be levied and recovered for the benefit of said party, pay for but two Provided, that the party cast shall not be obliged to pay for more p7o"eThl same than two witnesses to prove any single fact. fact. 77. The clerks of the several superior courts of law and equity Costs of publi- and clerks of the county courts shall tax the party, bound to pay age°o"fletterT^' the costs of the suit, with the costs of pubhcations in the news- covering pro- papers, which have been ordered by the court, and with the post- *^^^^ o e axe . age of all letters which cover the transfer of original or mesne pro- cess from one county to another. 78. In all cases where witnesses are required to attend any com- Subpoenas for ^'itllGSSGS to missioners, referees, order of survey, or jury of view, a summons attend commis- shall be issued by the clerk of the court at the request of either sioners &c. , . •' -11 111 1 how to be is- party or their agent, expressing the day and place where they are sued. to appear, the names of the parties to the suit and in whose behalf summoned ; and all witnesses, summoned in pursuance of this sec- tion, shall be entitled to the same privileges and receive the sameP^y °f 7'it- • • • HGSSGS lor 3t- pay for their attendance and be subject to the same pains and pen- tending com- alties for non-attendance, as witnesses summoned to attend the missioners, &c. courts. 79. In all actions whatsoever, the party, in whose favor judg- whosTfavor'^ ment shall be given, or, in case of a nonsuit, dismission or discon- judgment, &c. is given, to re- cover full costs. 75. 1796, c. 458, 8. 1.— 1777, c. 115, s. 46. 76. 1796, c. 458, s. 2.— 1733, c. 189, s. 3. 77. 1819, c. 995, s. 1 and 2. 78. 1805, c. 685, s. 1 and 2. 79. 1777, c. 115, S. 90. 164 COURTS, COUNTY AND SUPERIOR. [ChAP. XXXI. tinuance, the defendant, shall be entitled to full costs unless when it is or may be otherwise directed by statute. Defendant may, 80. In all cases where there are or shall be mutual debts sub- in certain cases, gjg^jj^g between the plaintiff and defendant, or if either party sue or give it in ev- or be sued as executor or administrator where there are mutual idence under (Jebts subsistine; between the testator or intestate and either party, tllG STGllSrS.! IS- ^ 1 J ^ sue upon notice One debt may be set against the other, either by being pleaded in to the plaintiff, j^gj.^ qj. gjygn j^ evidence on the general issue on notice given of the particular sum intended to be set off and on what account the same is due, notwithstanding such debts shall or may be deemed in law to be of a different nature, but if either debt arose by reason of a penalty, the sum intended to be set off shall be pleaded in bar setting forth what is justly due on either side. «)lored °"'rsoi . ^^' '" ^ ^^^^^ cascs whatsoever the evidence of all negroes, incompetent Indians, mulattoes, and of all persons of mixed blood, descended against white fj-Qj^ negro or Indian ancestors to the fourth generation inclusive, Admissible though One ancestor of each generation may have been a white ofher^^ ^^^^^ person, whether the person or persons, whose evidence is offered, be bond or free, shall be inadmissible and the witnesses incompe- tent except against each other. In what cases 82. In all actions upon the case for slanderous words and in all slander and as- actions of assault and battery, if the jury upon the trial of the issue sauit and bat- Jn such action, or the jury that shall inquire of the damages, do find tiff^ shall no^"^ or assess the damages under four dollars, then the plaintiff or recover more plaintiffs in such actiou or actions shall have and recover only so costs than ■* , , , ■ i i n damages. much costs as the damages so given or assessed shall amount unto, without further increase of the same. In trespass go j jj actions of trespass quare clausum fre^it, wherein guare dausum i r i i r j i n t i • • i • i • i fregity the de- the dciendant or detendants shall disclami m his or their plea to fendant may niake any title or claim to the lands, in which the trespass is by disclaim and ^ . j i i i i i i i- plead tender, the declaration supposed to be done, and the trespass be by negh- ^"^" . gence or involuntary, the defendant or defendants shall be per- the\respass in- ""fitted to plead a disclaimer, and that the trespass was by negligence voluntary and or involuntary, and a tender or offer of sufficient amends for such favor^of Thede- trespass brought, whereupon or upon some of them the plaintiff or fendant, the plaintiffs shall be enforced to join issue, and if the said issue be L^bajred! ^ found for the defendants or the plaintiff shall be nonsuited, the plaintiff shall be clearly barred from the said action and all other suits concerning the same. In actions of 34. When several persons are made defendants to any action of trespass, &.c. il i 1 1 r- 1 • • • 1 there be more trespass, assault and battery, lalse imprisonment or ejectment, and than one de- g^y one or more of them shall upon the trial thereof be acquitted lendant, and it -iinii one or more be by vcrdict, every person or persons so acquitted shall have and acquitted, the recover his costs of suit, in like manner as if a verdict had quitted shall been given against the plaintiff or plaintiffs and acquitted all the recover full defendants, unless the iudge before whom such cause shall be tried costs unlGSS J %} ■^ the judge cer- shall, immediately after the trial thereof, in open court, certify upon tifies, &c. 80. 1756, c. 57, s. 7. SI. 1777, c. 115, s. 42. 62. 1715, c. 2, s. 8.— 1826, c. 8. S3. 1715, c 2, s 7. S-1. 8 and 9 Will. 3, c. 11, s. 1. Chap. XXXL] courts, county and superior. 165 the record, under his hand, that there was a reasonable cause for making such person or persons a defendant or defendants to such action or plaint. 85. In all causes dependins; in any of said courts, in which the ^'^.'■^'^'^^ ^^'^^ ^ 1 • I- • • 1 1 J J • r 1 1 1- /K subpcena duces production oi an original paper, lodged in any ot the public om- tecum may is- ces of the State or in any office of a county, superior or supreme ®''®' court, shall become necessary, the said court shall have power to issue the process of subpcena duces tecum, requiring such persons as hold said offices respectively to attend the court, from whence said process issued, with such original paper, in hke manner and under the same penalties as witnesses are required to attend in cases of subpoenas to testify. 86. The said courts shall have full power in the trial of actions 9°"'"? ,"^^y °''' 1^ , . ,, . '■ , (-1- • der either par- betore them, on motion and due notice thereot being given, to re- ty to produce quire the parties to produce books or writings in their possession books or pa- or power, 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 in chancery ; and if a plaintiff shall fail to comply with such order to produce Consequences books or writing, or shall not satisfactorily account for such failure, produce. it shall be lawful for the said courts respectively on motion to give the like judgment for the defendant as in cases of nonsuit ; and if a defendant shall fail to comply with such order to produce books or writings, or shall not satisfactorily account for such failure, it shall be lawful for the said courts respectively on motion as afore- said to give judgment against him or her by default. 87. In all petitions for dower and partition, the court before i" petitions for whom the same maybe tried, may, at their discretion, decree by ti°n The cost's^' whom and in what manner the costs accrued thereon shall be paid, are at the dis- 88. It shall and may be lawful for any person or persons, bodies court." pohtic or corporate, having a right to demand any sum of money ,Actioji maybe \ 11- • 1 1 -11 1 1 1 brought asamst due upon any endorsed promissory note, single bill, bond or other the maker of a writing obligatory, which is, shall or maybe negotiable by the ^iP-^c. jointly laws of this State, to commence and prosecute, at the option of sers, or against the person or persons, bodies politic or corporate having such ^JJ or any one right, an action or actions for such sum or sums of money, so due as aforesaid, against the maker or makers of such promissory note, obligor or obligors in such bill, bond or other writing obhgatory, and the endorser or endorsers thereof, jointly or against any one or more of such makers or obligors and endorsers, and judgment shall and may be given accordingly. 89. In all cases of joint obligations or assumptions of copart- On joint obli- ners in trade or others, suits may be brought and prosecuted on fopsmnert^c^ the same against the whole or any one or more of such persons action may be making such obligations, assumptions or agreements. brought aaamst or any one 85. 1797, c. 476. 86. 1821, c. 1095.— 1828, c. 7. 87. 182S, c. 25, s. 1. 88. 1796, c. 464, s. 3.— 1817, c. 937. 89. 1797, c. 475, s. 2. 166 COURTS, COUNTY AND SUPERIOR. [ChAP. XXXI. Joint obliga- 90. In case of the death of one or more joint obligor or vTtc a-^ainst^ ' obHgors, the joint debt or contract shall and may survive against heirs, execu- the heirs, exccutors and administrators of the deceased obligor or decreased obli- obligors, as Well as against the survivor or survivors, and when all gor. the obligors shall die, the debt or contract shall survive against the heirs, executors and administrators of all the said joint obligors. Howthejudg- 91. In all cases where an executor or administrator shall be su- entered when ^^ ^^^^^^ ^ Surviving obligor, and it may be necessary that judgment the suit is should be rendered asainst such executor or administrator, such ecutor &a of process and judgment may be awarded against the same as if such the deceased executor Or administrator had been sued severally, and judgment sumvor!'^ ^ ^ ^^W ^6 awarded and entered up against the surviving obligor or obligors as is usual in other cases. When more ac- 92. Where there ai'e more obligors or endorsers than one on tions than one . , .", , . i i i • are brought on any promissory note or other negotiable instrument, and the pJain- a promissory tiff shall institute more suits than one upon such promissory note not6 qlc trie . . ■ . . court may con- or negotiable instrument against the obligors or endorsers, the suits sohdate them, go brought, on the return of the writs to the court from whence they issued, shall be consolidated, so that but one set of costs shall be incurred thereon, except as to the sheriffs' and clerks' fees for serving and issuing said writs, which shall be the same as in other cases. Judgment 93. w\ judgment bonds, notes and other writings, with power Doncls void 3.S *j o / o J J. to power to en- to any person whatever to confess judgment thereon, shall be and ter judgment, ^re hereby declared utterly void, as to such power, but the same out ffOOd £LS , "^ J ' y ' common law proceedings shall be had thereon as on common bonds and penal or penal bonds. notCS. Where a de- 94, Where any judgment or decree shall be obtained in any suUhithe ^ county court of pleas or quarter sessions for any debt, damages, county court portion, legacy, or distributive share of an intestate's estate, and the self or his ' person against whom such judgment or decree shall be obtained, property, the shall remove him or herself and effects, or shall reside out of the an'execuucm to hniits of the jurisdiction of such court, it shall be lawful for the any county, &c. clerk of the court, where such judgment shall be given or decree made, at the request of the plaintiff, to issue execution to any county of this State where the defendant or his goods may be found, and the sheriff or other officer, to whom the same maybe directed, is hereby empowered and required to execute the same and make return thereof, in the same manner as is directed for the return of process issuing from the superior courts. In actions for 95. In all actions brought to recover money due by contract, contTactf exc'^ept except on penal bonds, it shall be the duty of the jury to distin- penal bonds, guish by their verdict the sum due as principal from the sum allow- distu"ui^^be- ed for interest, and the principal sum due on all such contracts tweenVincipal shall caiTy interest from the time of rendering judgment thereon and thriud^cr'. ""til the same shall be paid and satisfied, and the judgments in such ment for prm- cipal shall car- 9,3. i^-j^g g. 314, s. 4.— 1786, c. 253, s. 1. ry interest. 91. 1707, c. 475, s. 1. 92. 1S20, c. 1046 93. 1783, c. 188, s. 2. 04. 1777, c 115, S. 70. 95. 1807, c. 721. Chap. XXXI.] courts, county and superior. 167 actions shall be rendered according to the provisions of this act. 96. Whenever a suit shall be instituted on a single bond, a cov- in an action on enant for the payment of money, a bill of exchange, a promissory &c!"if defend- note or a signed account, and the defendant shall not plead to issue ant makes no thereon, it shall and may be lawful upon judgment, without a writ ^ay calculate of inquiry, for the clerk of the court to ascertain the interest due interest, -with- by law, and the amount shall be inchided in the final judgment of "nqu^ry" the court as damages, which judgment is to be rendered therein in the same manner prescribed by the preceding section. 97. All petitions to the county or superior courts may be filed Petitions may during the term or in vacation, and it shall be the duty of the clerks cation. of the courts, in whose offices such petitions may be filed, to en- dorse thereon the time of filing, and to issue copies and subpoenas to be served as heretofore, but in case the petitioner or petitioners shall specify the amount of his, her, or their debt or demand (as nearly as may be) and shall make oath or affirmation to the same, in open court, or before the clerk of the court, in whose office his, her or their petition is filed, it shall be the duty of said clerk to issue copies of said petition to, and a capias ad respondendum cierk to issue against, the defendant or defendants in said petition, whom the peti- a capias upon tioner or petitioners, by his, her or their affidavit, shall charge to fno-'^ffid^vit'^of be his, her or their debtor or debtors, for the amount so charged ; the amount of and the sheriff is hereby required to execute said capias ad respon- ^^ ^^^^ dendum as is now required by law in cases of capias ad responden- dum, and to take bail in like manner, and the bail, when so taken, shall be liable and proceeded against as bail are now liable and proceeded against at law. 98. In all cases of suits by petition, in which a copy of the peti- When a peti- 1 , • 1 n T 1 1 ption IS served tion and a subpoena or capias shall have been served on one oi upon one of the defendants, and it shall be shewn to the court by affidavit that several defen- 1 , 1 r 1 1 (■ 1 • • 1 1 • r 1 • dants and the the other deiendant or detendants is or are not inhabitants oi this others reside State, or on diligent inquiry cannot be found, the court shall make ^^ °^ ^}^^ . . State the court an order directing such defendant or defendants to appear to the shall order said suit and make his, her or their defence to the same at the P'^'^''^'^^*°" ^° [. . J. ■, . . , , be made for next or some alter term or session oi the said court, or that the five weeks. petition will be taken pro confesso against him, her or them, and heard accordingly ; and if it shall, at the term or sessions so ap- pointed, be proved to the court that the said order was pub- lished five weeks successively in the paper nominated by the court, within fifty days after the said order was made, the court may proceed to the trial of the cause and to pass judgment or to decree thereon, which judgment and decree shall bind and conclude such defendant or defendants to the same extent and vmder the same rules and regulations, as defendants are now bound by like proceedings in the courts of equity. 99. When any matter of account shall be involved in a suit by ?°^.'i'^ ™f ^ i'"^" -^ 11-11 1- 1 11 der the clerk to petition, the court may order their clerk to audit and settle the audit and settle accounts. 96. 1808, c. 746, s. 1. 97. 1631, c. 14, s. 1.— 1806. c. 703, s. 3. 98. 1806, c. 703, s. 1. 99. 1806. c. 703, s. 2. ■ 168 COURTS, COUNTY AND SUPERIOR. [ChAP. XXXI. accounts involved in the cause and to report the balance due thereon, in the same manner and under the same rules and regulations as references are made by the courts of equity to the clerk and masters thereof; and the clerk shall be entitled to the same compensation for such services as the clerks and masters are now allowed by law. Any two jus- jqo. Any two iustices of the peace may take depositions to be tices may take ■' J , . . ^ K , •' . . . \ depositions to read as evidence m the trial oi suits by petition, m the same man- be read on pe- jjgj. g^^fj under the same rules and regulations as depositions are taken to be read in the trial of suits in equity. Pees of clerk 101. The clcrk shall take and receive the same fees for the on petitions, copies and process in suits by petition as the clerks and masters are now entitled to for like services. ^ue^b^MieiJ ^^^' "^^^ persons within age may sue by their next friend. next friend. 103. Whenever a person, plaintiff or defendant in any suit Either party to in any of said superior courts, shall except to the opinion fender uTthe o^ the court trying the cause and the same shall not be allowed, judge a bill of the party making the exception shall commit the same to writing excep ions. ^^^ require the same to be signed and sealed by the court before Judge to sign whom the said exception is taken, and the judge presiding shall and seal the gjg-j^ ^jj^j gg^j []^q gaj^e ", and if the presiding iudge will not sign and refuse, some Seal the said bill of exceptions, it shall be signed and sealed by other person gome Other pcrson present at the time of the exception taken ; T)rt!S6n,t in3.v .... . sign and seal it. which bill of exception so signed as above shall constitute and be a part of the record, and upon an appeal, the court, before whom the said appeal shall be tried, shall proceed to judgment according to the same exception as it ought to be allowed. Actions of ac- 104. Actions of account shall and may be brought and main- count may be tained against the executors and administrators of any guardian, brought against , -Tn- i • i i i • • i • the executors bailin and receiver, and also by one joint tenant and tenant m com- and admin- mon, his executors and administrators against the other as bailiff istrators oi ^ . . , , . . " , . , guardians, &c. lor receiving more than comes to his just share or proportion, and against the executor and administrator of such joint tenant and ten- ants in common ; and the auditor appointed by the court, where such action shall be pending, shall be and is hereby empowered to administer an oath and examine the parties touching the matter in question, and for his pains and trouble in and taking such accounts have such allowance as the court shall adjudge to be reasonable, to be paid by the party against whom the balance of the account shall appear to be. If an action 105. If an action be brought in good faith by any person to brbmu<4T'^^^^ recover any penalty under any law of this State or of the United good fafth, and States, and the defendant shall plead in bar thereto a former judg- pkad*^a former ™®"t recovered against him or them by any other person for the judgment same causc of action, or a former judgment rendered in his or their lfc^"pkind(f I^vor in a former action brought by any other person for the same may reply cause of actiou, then the plaintiff in such action, brought in good fraud, Slc. 100. 1806, c. 703, s. 4. 101. 1306, c. 703, s. 5. 102. 13 Edw. 1, c. 15. 103. 13 Edw. 1, c. 31. 104. 4 Anne, c. 16, s. 27. 105. 4 Hen. 7, c. 20. Chap. XXXI.] courts, county and superior. 169 faith, may aver that the said former recovery in said popular action was had by covin, or else aver that the former judgment in the said popular action in favor of the defendant or defendants was had by covin ; then if afterwards said collusion or covin so averred be lawfully found, the plaintiff or plaintiffs in that action, sued with good faith, shall have recovery according to the nature of the action, and execution upon the same in like manner and effect as if no such judgment had been before had ; and no release made by such party, whether before action brought or after, shall be in any wise available or effectual ; and every person, pleading such false plea, shall be further liable to indictment, in any court having juris- diction of the same, and upon conviction shall be imprisoned at the discretion of the court. 106. Where any action of debt shall be brought on any single ^"J^" ^*=ti?" o[ bill, or when any action of debt or scire facias shall be brought on &c. payment ' any judgment, if the defendant hath paid the money due upon such maybe pleaded, bill or judgment, such payment shall and may be pleaded in bar of such action or suit ; and when an action of debt is brought upon any bond, which hath a condition or defeasance to make void the same upon payment of a lesser sum at a day or place certain, if the obligor his heirs, executors or administrators have, before the action brought, paid to the obligee, his executors or administrators, the principal and interest due by the defeasance or condition of such bond, though such payment were not made strictly according to the con- dition or defeasance, yet it shall and may nevertheless be pleaded in bar of such action, and shall be as effectual a bar thereof, as if the money had been paid at the day and place according to the condition or defeasance, and been so pleaded. 107. If at any time pending an action on any such bond with a^^^"^ action of penalty, the defendant shall bring into court, where the action shall with a penalty, be pending, all the principal money and interest due on such bond, ^ the defend - and also all such costs as have been expended in any suit or suits court "hi prin- in law or equity upon such bond, the said money, so brought in, ^^Pf-^> interest shall be deemed and taken to be in full satisfaction and discharge bond shall be of said bond, and the court shall and may give judgment to dis- ^^'^"^'^^ f^^- charge every such defendant of and from the same accordingly. ' 108. Every judgment given in a court of record, or before a single Judgment of a magistrate having jurisdiction of the subject, shall be and continue tmreversed" in force until reversed according to law. 109. When an appeal shall be taken by any defendant, from the Upon an appeal judgment of a justice, to the county court, the said court shall have from a justice/s power, upon sufficient cause being shown on affidavit filed, to judgment or a compel the plaintiff to give bond and sufficient security for the Jainwi by a de- costs of said suit in the event of the plaintiff's failing to prosecute fendant, court the same with effect ; and if any judgment, rendered by any jus- jljafnt^ifftoVve tice, be removed at the instance of any defendant to any superior security, &c. court by writ of recordari or otherwise, the said court may, upon 106. 4 Anne, c. 16. s. 12. 107. 4 Anne, c. 16, s. 13. 108. 4 Hen. 4, c. 23. 109. 1831, c. 29, s. 1. VOL. I. 22 170 COURTS, COUNTY AND SUPERIOR. [ChAP. XXXI. sufficient cause shewn by affidavit, compel the plaintiff in such judgment to give bond and sufficient security to pay all costs in the event of the plaintiff's failure to prosecute said suit with suc- cess. Appeals from a 110. When an appeal shall be taken to the county court, the trieTthe°first ^^^'^^ ^hall be reheard by the said court, whereupon an issue shall term of the be made up and tried by a jury at the first term, to which it is re- county court, turned, unless legally continued, and judgment shall be given there- Party cast to on and the party cast shall pay the costs of all the proceedings, to P y a COS s. ^^ taxed by the court ; and execution may issue for the same against the principal and securities, when judgment is granted against the plaintiff. If plaintifT ap- m. Provtrfet? if judgment be entered for the plaintiff by the judgment in justice and he appeal, such appeal shall be at the costs of the plain- his favor, it tiff, unless the court, on the trial, shall be of opinion that there was costs unless ^^ Sufficient cause for such appeal ; and in such case plaintiff shall sufficient cause recover hiscosts, on motion. is shewn.*^^^^^ 112- In all appeals from the county to the superior court, if the Appeals from trial in the county court was of an issue to the country, a trial de the county to novo shall be had ; and if on a hearing; of a petition for a filial por- the sup<^rior . '..,., o^ . f^ t court, ho w to be ti on, or legacy, or distrioutive share oi an mtestate s estate or other tried. matter relating thereto, a rehearing at the superior court without notice given by either party. The mcreasmg HQ, In every leap year, the increasing day and the day before year, how to be shall, in all legal proceedings, be accounted as one day. counted. j i^ ]\Tq execution shall issue upon any judgment obtained in tolssue'^on a" ^"7 °^ ^aid courts, after a year and a day from the rendition of such judgment after judgment : Provided, that whenever execution hath been issued day ^without a "poi^ s^id judgment, within the year and day, it shall be lawful for scire facias to the clerk to issue an execution to enforce said judgment at any same! ^ ^ ^^'^^ within a year and day from the issuing of the last execution ; and when the party claiming the benefit of such j^ldgment, shall come after the year and day as above stated, he shall not be entitled to an execution on his judgment, until he have caused a scire facias to be issued to the defendant, wherein the sheriff shall be com- manded that he give notice to the party, of whom it is com- plained, that he appear before the 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 come at the day, or do come and say nothing why execution ought not to be done, the sheriff shall be commanded to cause the judgment to be executed. PlamtifT shall ]i5_ j^j q\\ cases where a verdict shall pass against a plaintiff, not be nonsuited , i ■ -/t" i n i • i after verdict, the same piamtifi shall not be nonsuited. Party commit- HQ. When a certiorari or writ of habeas corpus cum causa shall ted in execution . i i i -n- i rr i • • t i i n not to be dis- issue, and tfie sheriff, or other officer to whom it is directed, shall charged on ha- beas corpus. j^^ j^^^^ ^ j^^^ g 63—1794, c. 414, s. 1. 111. 1794, c. 4L4, S. 17. 112. 1777, c. 115, S. 77. 113. 21 Hen. 3. 114. 13 Edw. 1, c, 45. 11.5. 2 Hen. 4, c. 7. 116. 2 Hen. 5, c. 2. Chap. XXXI.] courts, county and superior, 171 return upon the same that the prisoner, which is so holden in prison, is condemned by judgment given against him, and held in custody by virtue of an execution issued against him, the said prisoner shall not be let to bail, but shall be presently remanded, where he shall remain until discharged in due course of law. 1 17. In all actions, the death of either party between the verdict ^1^^^^^^^ ^l and the judgment, shall not be alleged for error, so as such judg- tween verdict raent be entered within two terms after such verdict. shall' "'^t'b^"'^ 118. When any judgment after a verdict shall be had by or in signed for er- the name of any executor or administrator, in such case an admin- ™''- istrator de bonis non may sue forth a scire facias and take execution ^^ "honiTTwn^ on such judgment. may have ex- 119. Whenever suit shall be brought upon any bond given by ^ent°o\°taS' any executor, administrator or guardian for the faithfiil performance by; former ad- of his or her duty as such, it shall be the duty of the court, at the "^™^^'''*^°^- •' f, . , . . r • \ r 1 ^n. suits upon appearance term oi said suit, on motion oi either party, to reter the the bonds of same to any person or persons, to whom both the parties agree to executors, ad- . i o minis tr3.tors have it referred ; and if they cannot agree on persons to whom it guardians, &c. shall be referred, then the court may refer it to the clerk or any "^P"!^ motion , T , ■' , , , •' at ttre appear- other person ; and such person, persons or clerk, to whom any anee term, a reference shall be made under this act, shall take an account, under f^^^'^^"'^* "^'^y the same rules, regulations and restrictions as are now provided have an account for taking an account in a court of equity, whose report, when con~ ^^^^^^i- firmed by said court, shall be conclusive evidence of the amount of the plaintiff's demand only as against the then parties ; and. it shall be the duty of the court to make an allowance for taking such ac- count, in the same manner as is now done in courts of equity, which allowance shall be paid by the plaintiff, or defendant, or both, as the court in its discretion may direct. 120. In all causes in the superior courts, whether civil or crim- ^"y •^^"s? *" inal, in which it shall be suggested, on oath or affirmation, on be- court, either ci- half of the State or the traverser of the bill of indictment or of the^^ °bc7imird plaintiffs or defendants in said causes, that there are probable on affidavit to grounds that justice cannot be obtained in the county in which ^'^ adjoining said causes shall be pending, then and in that case the judge of said court is hereby authorized to order a copy of the record of said cause to be removed to some adjacent county for trial. Pro- vided^ that no cause shall be removed on oath or affirmation, un- less the oath or affirmation set forth the facts, whereon the depo- nent or affirmant founds his belief that justice cannot be obtained in the county, wherein the suit is pending, so that the judge may decide upon such facts whether the behef is well grounded. 121. The parties to any suit, in any of the superior courts of The parties to law and equity within this State, may remove such suit, by consent, remove the^^ for trial to any convenient county, which removal by consent shall same to an be entered of record, and thereupon it shall be the duty of the^y^by"cons*enT" clerk to transfer the papers relating to such suit in like manner as 117. 17 Chas. 2, c. 8, s. 1. 118. 17 Chas, 2, c. 8, s. 2. 119. 1826, c. 2. 120. 1806, c. 693, s. 12.— 1821, c. 1094.— ISOS, c. 745. 121. 1813j c. 853. 172 COURTS, COUNTY AND SUPERIOR. [ChAP. XXXI. prescribed for the removal of causes on affidavit of either parly, and the court to which such suit shall be removed shall have full power and authority to proceed to hear and determine the same as fully as if the same had been originally commenced in such coml. Upon the re- 122. Whenever any suit shall be directed to be removed from cause, the clerk any of the superior courts agreeably to the above sections of this to send a tran- a^t [^ gj^g]} ]^q tjjg duty of the clerk to transmit a transcript of the script, tosether ',».,. •', i • i i • i- i with the depo- record oi said suit to the court, to which the same is directed to ^i/i°ii?' ^^.- be transmitted, together with any depositions or other written evi- JI16CI L116r61Il( -| 1*1 1/^111 * dences which may be riled therein. Cause to be re- 123. When any application shall be made to remove any cause, davlt*^ T ***' whether civil or criminal, to an adjacent county for trial, which than twice. cause shall have been before removed, it shall be the duty of the person so applying to set forth on affidavit particularly and in de- tail the grounds of such application, and the presiding judge may in his discretion remove the same to any adjacent county for trial. Provided, that no cause under any circumstances shall be removed more than twice. In suits involv- 124. In all suits in the county and superior courts, wherein the boundary,°the° title or bounds of lands shall come in question, if it shall appear court may or- to the court necessary, such court may order two surveyors, one era survey. ^^ ^^ named by each party, to attend and run out the lands in dis- ttiereupon. pute, agreeably to the bounds and hues expressed in each party's , titles, and make three accurate plans of such surveys, and return the same to such court ; which order such surveyors are required to obey, and the allowance for the service rendered is to be taxed in the bill of costs and paid by the party cast. Provided neverthe- less, if the parties shall agree to have but one surveyor appointed to perform such services, that then and in such cases the court shall order one surveyor only to attend, survey and run out the lands in dispute, who shall return three plans in the same manner, and be entitled to the same allowance, as he would have been enti- tled to if two surveyors had been appointed. Clerk not to af- 125. In all cases where the clerk of the superior or county fix the seal of court issues proccss to the county of which he is clerk, it shall process to be not be necessary for him to annex the seal of his office thereto, executed with- and if any such seal should be notwithstanding annexed, it shall m the county. i 1 c i • 1 • 1 i -n p /• i not be lawiulto raise any charge in the bill 01 costs lor the same. SheriiT, &c. to 126. It shall be the duty of the sheriff of every county, by him- serve all no- gg]|- ^j. j^jg j^wful deputy, to scrvc all notices that may be tendered be necessary in or delivered to him, or that are or may be required to be given, in kfaworeq^tv ^^^ cause, motion or proceeding, either at law or in equity, as well for commencing as for proceeding in the same until the same shall be ended ; and in case the sheriff of any county, in which such notice is to be served, shall be a party or interested in the pro- ceedings aforesaid, then it shall be the duty of the coroner of the county, for which said sheriff was appointed, to serve all such notices that are to him tendered or delivered. 122. 1806, c. 694, s. 12.— 1810, C. 787. 123. 1822, c. 1130, s. 1. 124. 1779, c. 157, s. 7.— 1786, c. 252, s. 1 and 2. 125. 1797, C. 474, s. 5. 126. 1827, c. 20, s. 1.— 1815, c. 888, s. 1.— 1816, c. 902, s. 1. Chap. XXXI.] courts, county and superior. 173 127. The said officers shall serve the same by delivering a true How notices to copy thereof to the person, to whom the same shall be directed, if '^'^ served. he be found in his county, or by leaving a copy thereof at the usual place of abode of such person if in his county, and shall certify on the notice the time when said notice was served or copy left at the place of abode ; and such return shall be evidence of the service of the said notice as may be therein stated, and the said officers shall deliver respectively the said notice with his return to the party, his attorney or agent, at whose instance such notice issued, upon demand of the same. 128. Any sheriff or coroner, neglecting to execute and return f^'^'^^.^y °".°/' J ^ -^ o o _ iicer tor la.iiin'^ such notice, or making a false return thereon, shall be subject to to serve notices the same action and penalties as for neglecting to serve or falsely or making a L _ cj *j J icilSB rGiurn, returning process, directed to him from the superior courts of law of this State, to be prosecuted, recovered and applied as actions and penalties are directed to be prosecuted, recovered and applied, for neglecting to serve or falsely returning process issued from the superior courts of this State. 129. Provided^ that nothing herein contained shall prevent any Notice may be person from giving notice and proving the same as heretofore ^J.^^g^^^g j^^j.^, directed. tofore. 130. When any scire facias shall issue to the sheriff of any The return of a county within this State, the return of the sheriff thereon that the ^^^nff on a same has been executed shall be deemed sufficient evidence of the that he has ex- service of such scire facias, and it shall not be held necessary that ^'^'i^*^'? '^."^ ^'^'^^ \j ' J surficicnt GV- the same should be made known in the presence of witnesses. idence of the 131. At the trial of all actions at law upon contract, it shall be ***^''^i'=^- competent for either of the defendants to shew in evidence that he, on trLrmav"^' she or they, is or are surety or sureties, and if it be satisfactorily shew that they shown, it shall be the duty of the jury in their verdict, or of the the jury or jus- justice of the peace in his judgment, to discriminate the principal tice to discrim- and surety, which shall be endorsed on the execution by the clerk c"pai fi-oin"he or justice of the peace issuing it. sureties. 132. When any execution endorsed as aforesaid shall come in such case into the hands of any officer for collection, it shall be his duty to J^l^'^^Jig^'lj^^^^g levy the same on the goods and chattels and lands and tenements property of the of the principal, or so much thereof as shall be necessary to satisfy P^"^""?*^!' ^'^• said execution, and for want of such sufficient property of the prin- cipal, also on the goods and chattels, lands and tenements of the surety or sureties, and make sale thereof as the law does or may direct; Provided, nevertheless, that in all such levies a sale shall ^''"Pf^y, "f^l",® first be had on all the property of the principal levied on, before be "first sold. that of the surety or sureties. 133. Whenever any suit shall be brought in any of said courts, A judgment for in which security shall be given for the prosecution of the suit, or be'^^ven ""^^ when any case shall be brought up to any of said courts by an ap- fpinst the peal from the county courts or otherwise, in which a bond for the the'suretfe" to 127. 1827, c. 20, s. 3. 128. 1827, c. 20, s. 4.— 1315, C. 883, s. 2. 129. 1S27, c 20, s 6.— 1815, c. 888, s. 4. 130. 1799, c. 537. 131. 1820, c. 31. s. 1. 132. 1S2G, c. 31, s. 2. 133 ls:ji, c. 46, s. 1 and 2. cess. 174 COURTS, COUNTY AND SUPERIOR. [ChAP. XXXI. his prosecution prosecution of the suit shall have been given in the court below, faHing^o'pros- *"^ judgment shall be given in the superior court against the plain- ecute with sue- tiff for the costs of the defendant or defendants, it shall be the duty of the court, upon motion of the defendant, also to give judgment against the surety for the prosecution, for said costs, whereupon execution shall issue jointly against the plaintiff and his security. A defendant 134. It shall and may be lawful for the defendant or defendants, fud^meiu is™ against whom any final judgment or decree for the payment of rendered may money shall or may be rendered or made by any court of record ?o ^he clerk"be- ^" ^^^^^ State, to pay the whole or any part of the judgment or de- fore execution cree to the clerk of the court, in which said judgment or decree issues. gj^^ji ^^ ^^^^ ^^ rendered or made, at any time after the rendering of such judgment or the making of such decree, although no exe- cution shall or may have issued to enforce the payment of such judgment or decree ; and such payment of money shall be as good and available to the party making the same, as if made to the sheriff or other legal officer, under and by virtue of an execution issued on such judgment or decree. Clerk to pay 135. The clerks of courts of record, to whom any money shall over the same or may be paid to satisfy, in whole or in part, any final judgment titled to receive or decree, shall pay the same to the party or parties entitled to re- ^'- ceive the same, under the same rules and penalties, as if the same had been paid into his office under and by virtue of an execution issued on such final judgment or decree. Judge how to 136. It shall not be lawful for any judge, in delivering a charge charge to^the ^° ^^•'® P^tit jury, to give an opinion whether a fact is fully or suf- jury. ficiently proved, such matter being the true office and province of the jury ; but it is hereby declared to be the duty of the judge, in such cases to state, in a full and correct manner, the facts given in evidence, and to declare and explain the law arising thereon. Quakers may 137. It shall be lawful for the people called Quakers to wear their hats, as well in courts of judicature as elsewhere, unless otherwise ordered by the court. /, lO -^^ 135. 1823, c. 1212, s. 2, , a- 1 ^ "i nJ. i 6 a. ^ , r^ 136. 1796,0. 4.52, s. 1. ^ ^^ ^"^ C^ J i ■ "l ^ . /V- /j. - ^ ^. 137. 1784, c. 209. / ? ^^- :^ ^ QTL ^ - f. /O- / 1 . //^ • Z 2 • 5 J Note- — REFEnENCEs TO Adjudged Cases. Sect. 26. Sheepshanks tJs Jones, 2 Hawks. 211. Sect. 30. State vs. Hogg, 2 Murph. 319 Sect. 39. Green vs. Mangum, 3 Murph. 39. The Yadkin Nav. Co. against Benton, 1 Hawks, 422. Sect. 42. Allen vs. Stokes, 1 Hay 122. Sect. 44. Muyr »s. Mallett, 2 Hay. 137. Tyler vs. Person, 1 Murph. 498. Wilson vs. Hudspeth, 3 Dev. 57 Brittain iw. Howell, 2 Dev. and Bat. Sect. 47. Mc'Clenahan vs. Thomas, 2 Murph. 247. Clark vs. Dupree, 2 Dev. 411. Sect. 50. Rise vs. Hayworth, 4 Dev. 584. Sect. 62. Anderson vs. Anderson, Martin, 19. Sect. 63. Chambers vs. Wilherspoon, 3 Hawks, 42. Sect. 69. Cherry vs. Slade, 2 Hawks, 400. Sect. 73. Peace vs. Person, 1 Murph. 188. Sect. 75. Moore vs. Islar, Martin, 78. Thompson vs. Hodges, 3 Hawks, 318. . Sect. 7G. Anon. 2 Hay. 133. Bird vs. Rouse, 1 Car. Kepos. 334. Carpenter vs. Taylor, N. C. Term R. 265. wear their hats in court Chap. XXXII.] courts of equity. 175 Sect. 79. Stockstill vs. ShufFord, 1 Murph. 39. Arrington. vs. Coleman, ib. 102. Welborne vs. Gordon, ib. 502. Porter vs. Know, 1 Car. R. 521. Superior Court ofiice vs. Lockman, 1 Dev. 146. Darden vs. Maget, 1 Dev. and Bat. 498. Sect. 80. Hogg vs. Ashe, 1 Hay, 471. Moore vs. Jones, 1 Murph. 353. Worth vs. Pentress, 1 Dev. 419. Sect. 90. Brown vs. Clancey, 1 Hay. 107. Davis vs. Wilkerson, ib. 334. Smith vs. Kagan, 2. Dev. 299. Sect. 92. Anderson vs. Hunt 1 Dev. 298. Sect. 95. Deloath vs Worke,3 Hav/ks, 36. Sect. 102. Howet w. Alexander, 1 Dev. 431. Sect. 112. Erwin vs. Arthur, Conf. 490. Sect. 120. Smith vs. Osier, 1 Car. Repos. 518. Knowis vs. Baker, 2 Car. R. 98. Sect. 122. State vs. Collins, 3 Dev. 117. Sect. 123. State i's. Lewis, 3 Hawks, 410. Sect. 125. Governor vs. Mc'Rae, 3 Hawks, 226. Seawell vs. Bank of Cape Fear, 3 Dev. 279. Sect. 136. Orliison I's. Morrison, 3 Murph. 551. State vs. Greenlee, ib. 556. Sneed vs. Creath, 1 Hawks, 309. Reel vs. Reel, 2 Hawks, 63. Mc'Neil vs. Massey, 3 Hawks, 91. State vs. Morris, 3 Hawks, 388. Reid vs. Shank, 2 Dev. 415. State vs. Moses, 2 Dev. 452. State vs. Lipsey, 3 Dev. 485. State vs. Davis, 4 Dev. 612. State vs. May. ib. 328. CHAPTER 32. COUMTS OF EQ.UITY. AN ACT CONCERNING COURTS OF EQUITY, Section 1. Courts of equity established. 2. Style of the court. 3. Clerk and master to be appointed. 4. Rules of court — Plaintiff may file his bill in vacation — Capias to take the body of the defendants, when to issue — Form of the writ — Officer's duty in serving it — Liable as special bail for taking an insufficient bond, or for failing to take any bond — No capias to issue against an executor, administrator or heir — Penalty on executor, &c. for not appearing — How to proceed when there are two or more defendants — Copy of the bill and subpoena to be served on the defendant ten days before the return court — Defendant to plead, answer or demur at the return term, or the bill to be taken pro confesso — Defendant may show cause with- in the three first days of the ensu- ing term — Court to order publication to be made when the defendant can- not be found, or resides out of the State — Publication how to be made — Upon publication being made court may grant plaintiff a decree, unless the defendant appears and Section files his answer, plea or demurrer — PlaintifTin case of such decree to give security for the return of property — If such decree is against a person residing out of the State, a copy of it must be served on such person, if within two years after the decree he comes into the State — If such defendant dies within two years, the copy to be served on his real or personal representatives — Decree to be absolute against a person served with a copy and not peti- tioning for a rehearing within twelve months — Defendant may pe- tition for a rehearing within twelve months from service of a copy, or within three years when no copy of the decree has been served upon him, and upon paying or giving se- curity for the costs, may answer the bill, &c. — Decree in such case to be final, if no petition for rehearing is filed within three years— Such de- cree not to be made against a person residing out of the State unless the bill is founded on transactions which took place in this State— Commis- sions to take testimony to issue — 176 COURTS OF EQUITY. [ChAP. XXXII. Section — Twenty days notice to be given, unless a longer or shorter time is ordered by the court— Commissions may also issue to take the answer, &c. of the defendant — Judge may issue such commissions in vacation, or may himself examine testimony, &c.— May also grant injunctions and. issue writs of ne exeat — Court may direct the trial of such issues as it thinks necessary—Court's pow- er as to costs — as to requiring secu- rity from the defendant — and as to issuing process to enforce its de- crees. 5. Sheriffs to serve notices issuing from clerks and masters. 6. Executions may issue as at law — and have the like binding effect. 7. A decree for the costs of the defen- dant may be given against the sure- ty for the prosecution as well as against the principal. 8. In case of defendant's death after service, a sci. fa. may issue to make his representatives parties. 9. When plaintiff dies his representa- tives may make themselves parties within two terms thereafter. 10. No bill, answer, &c. to be enrolled Section till 11 12 13 14 final decree — Court to direct what papers to be enrolled. No injunction to stay an execution shall issue for a greater sum than plaintiff swears to be just, nor until after security given. No injunction to issue after four months from the judgment at law, except in certain cases. Injunction bonds, after dissolution of the injunction, to be proceeded on like appeal bonds. In what cases injunctions to stay ex- ecution on behalf of the State will be allowed. Court to appoint a guardian for infant or non compos defendant residing out of the State — Such infant, &c. to have three years after the de- cree to appear in court, &c. Cause may, after it is set for hear- ing, be removed to the supreme court. .Time within which bills of review and petitions for rehearing shall lie or be allowed. 18. Clerk and master to make title to property sold under an order of the court. 16 17 /^U^. &^- ^^rSO Courts of equi- ty established. Style of the court. Clerk and mas- ter to be ap- pointed. Rules of court Plaintiff may file his bill in vacation . 1. Be it enacted by the General Assembly of the State ofJ^orth Carolina, and it is hereby enacted by the authority of the same, That each superior court of law within this State shall also be and act as a court of equity for the same county, and possess all the powers and authorhies within the same that the court of chancery, which was formerly held in this State under the colonial govern- ment, used and exercised, and that are properly and rightfully inci- dent to such a court agreeably to the laws in force in this State. 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 judges of said courts of equity shall appoint some per- son of skill and probity to act as clerk and master in equity to each of said courts. 4. The rules and methods of proceeding in said courts shall be as follows, to wit : The plaintiff may file his bill in the clerk's of- fice, either during term time or in the vacation, and thereupon the clerk shall issue a writ of subpoena as is usual in cases in chancery, and when the plaintiff shall specially state his debt or damages and make oath or affirmation thereto, either before one of the judges 1. 1782, c. 177, s. 2.— 1806, c. 693. 2. 1787, c. 278, s. 4.— 1732, c. 177, s. 4. 3. 1787. c. 278, s. 3.— 1806, c. 693, s. 10. 4. 1782, c. 177, s. 3.— 1787, c. 276, s. 1.— 1789, c. 314, s 1 and 5. C. 278, s. 1.— 1823, c. 1213. -1833, c. 8.-1787, Chap. XXXIL] courts of equity. 177 of the superior courts of law and equity, or before one of the Capias to take judges of the supreme court, or before the clerk and master in defendant"^ ^^^ equity, the said clerk shall, together with the subpoena, issue a writ when to issue. directed to the sheriff of the county, where the defendant is sup- posed to be a resident, as follows, to wit : The State of North Carohna to the sheriff of county, greeting. You are hereby commanded to take the body of Form of the late of your county, (if to be found in your coun- '*^"'' ty,) and him safely keep so that you have him before the judges of . the superior court of law and equity for the county of at the town of on the day of next, or till he shall give you good and sufficient secu- rity in the sum of dollars, (which sum is hereby directed to be double the damages 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 no wise omit at your peril. Witness clerk and master of the said court at the day of in the year of the independence of the State. — Which writ the sheriff is Pfficer;s duty hereby directed and required to obey ; and when any such writ ^^ ^^^ ^"^ ^ ' shall issue to any sheriff or other officer, such sheriff or other of- ficer shall not only be liable as special bail for taking an insufficient Liable as spe- bond, on exception taken and entered the same term to which such "^^.j^^^j^"?^ process shall be returnable, the sheriff or other officer having due sufficient bond, notice thereof; but such sheriff or other officer shall also be liable °'^/°'j^^^^'^^^^j|° as special bail for faihng or neglecting to take from such person or persons, arrested by virtue of such writ, a bond with two suffi- cient securities in double the sum for which such person or persons shall be arrested, and proceedings shall be had against him under the same rules, regulations and restrictions as in such cases in ac- tions at law: Provided, that no such writ shall issue against an ex- ecutor, administrator or heir at law who is sued as such, but the No capias to process against them and each of them shall be by a writ of sub- an exe^ulor^^ poena, as usual in other cases of chancery, and the penalty for not administrator attending shall be two hundred dollars, but the said penalty shall ""^ ^l^' • • .. y X Gnsiltv on. GX- not be levied nor final judgment given, until the term ensuing that ecutor, &.c. for to which the suit is returnable, nor without a scire facias having ^°^ ^PP^^""S- been duly served and proof thereof made to the satisfaction of the court, as in cases at law where scire facias is required; and where any other person is made a defendant, together with such execu- tor, administrator or heir at law as aforesaid, a capias may issue as above against such other person, and a writ of subpoena against such executor, administrator or heir at law ; and in all cases where there are two or more defendants, the plaintiff may issue subpoe- nas, directed to the sheriff or coroner of each of the counties ^°7 ^l P"""' ' , CG6CI WflGIl where the defendants are most likely to be found, noting on each there are two process that they are issued in the same suit, and when the same °^ '^"'^^ defea- are returned they shall be docketed as if only one had issued; and in case any defendant should not be served with such process, the VOL. I. 23 178 COURTS OF EQUITY. [ChAP. XXXII. same proceedings shall be had as in cases of other similar process which has not been executed. C Dv f th ^^ ^^^^^ ^^^^^^ ^^ served by the sheriff, unless he has a copy of bill and subpoe- the bill ready to dehver the defendant ; he is hereby required to na to be served (jgijygp ^jjg Said coDv immediately after the service of the said on the aelend,- *-^, , '^ ant ten days Writ, nor shall any service be vahd, unless it be made at least ten before the re- (jjjyg before the term at which the defendant is required to appear ; and where the service is by subpoena, the defendant shall be serv- ed with a copy of the bill at least ten days before such term ; on failure of any of which requisitions the defendant may plead the matter in abatement and the bill shall be dismissed. Defendant to Upon such Writ or subpoena being duly served and a copy of or^demur^at^'^ the bill idehvered in proper time, proof being made to the satisfac- the return tion of the court by the return of the sheriff or by affidavit, the biirto°be taken defendant shall appear and put in his answer or plea, agreeably to ■pro cmfesso. the pr.actice in chancery, or demur, or on failure thereof the plain- tiff's bill shall be taken pro confcsso, and appointed to be heard Defendant may g^ mrte at the ensuing term. Provided, that if, within the three within the first days of the ensuing term, the defendant shall offer any satis- ^f'^th^'^^' '^^y® factory reason to the court for his not appearing at the first term, term. ° the order for the bill being taken pro confesso and heard ex parte may be discharged, and the defendant then admitted to plead, an- swer or demur ; and such time shall be allowed in this as well as in all other cases for the pleadings on both sides, and such day appointed for the hearing, as the court shall direct ; and if any defendant or defendants, against whom any subpoena or other pro- cess shall issue, shall not cause his, her or their appearance to be entered on such process, within such time and in such manner, as, according to the rules of the court, the same ought to have been entered, in case such process had been duly served, and an affidavit or affidavits shall be made to the satisfaction of the court that such Court to order defendant or defendants resides or reside beyond the limits of the publication to gtate, or that, upon inquiry at his, her or their usual place of the defendant abode, he, she or they could not be found, so as to be served with cannotbe found gypjj pj.Qgggg p^(j ^]^^j there is iust ground to believe that such or resides out -^ «/ o of the State, defendant or defendants is or are gone without the limits of the State, or otherwise absconded to avoid being served with the pro- cess of such court, then and in such cases, the court, out of Avhich such process issued, may make an order, directing and appointing such defendant or defendants to appear at a certain day therein to be named, and in cases where such defendant or defendants resides or reside without the limits of the State, a copy of such order shall, within sixty days after such order made, be inserted in some Publication gazette regularly pubhshed within this State, for such length of niade^° ^^ ^^^^ ^^ ^^^^ court may order and direct, and they may when they shall think necessary direct such order to be inserted in any ga- zette of the United States ; and in cases where such defendant or defendants shall have withdrawn him, her or themselves beyond the limits of the State, or otherwise absconded to avoid the service of such process, a copy of such order shall, within sixty days after such order made, be inserted in some gazette regularly published Chap. XXXII. ] courts of equity. 179 within this State, for such length of time as the court shall direct, and shall, within the time aforesaid, be posted up at the door of the court house, where such order shall be made, and also in some pubhc place within the county, where such defendant or defendants respectively made his, her or their usual abode, within thirty days next before such his, her or their absenting ; and if the defendant or Upon publi- defendants do not appear within the time limited by such order, or ^^^^ ^^"^1 within such further time as the court shall appoint, then, on proof may grant made of such publication of such order as aforesaid, the court, cree"unkss being satisfied of the truth thereof, may order the plaintiff's bill to the defendant be taken pro confesso, and make decree thereupon as shall be ^PP*^^"^®" thought just, and may thereupon issue process, as in other cases, to compel the performance of the decree either by execution, as hereinafter provided, to satisfy the demands of the plaintiff" or plaintitFs in the said suit, or by causing the possession of the estate and effects demanded by the bill to be delivered to the plaintiff or plaintiffs, or otherwise as the nature of the case may require. First, Provided, nevertheless, that such plaintiff' or plaintiffs shall Pl^i'i'^j.^) iii first give sufficient security, in such sum as the court shall think decree, to give proper, to abide such order, touching the restitution of such estate security for the or effects, as the court shall think proper to make concerning the erty. same, upon the defendant or defendants appearing and petitioning to have the said cause reheard, and paying such costs to the plain- tiff or plaintiffs as the court shall order. Secondly, that if any if such decree decree shall be made, in pursuance of this act, against any person p^ersonTesiding or persons residing without the limits of the State at the time such out of the decree is pronounced, and such person or persons shall, within ofVmust'^e two years after making such decree, reside within the State, or served on such . become pubUcly visible therein, then, and in such case, he, she f"two' years or they shall likewise be served with a copy of such decree, within after the de- a reasonable time after his, her or their coming into the State, or into'the State, their pubhc appearance shall be known to the plaintiff or plaintiffs ; and in case any defendant or defendants, against whom such decree If such defend- shall be made, shall, within two years after the making of such de- two years, the cree, happen to die before his or her comine into the State, copy to be ^.^ , „ . , 1 11 • 1 • 1 • 1 1 r served on his or appearing openly as aforesaid, or shall withm the time last beiore real or personal mentioned die in custody before his or her being served with a representatives, copy of such decree, then the heir of such defendant as shall have any real estate, whereof possession shall have been delivered to the plaintiff" or plaintiffs, if such heir may be found, or if such heir shall be a feme covert, infant, or non compos mentis, the husband, guardian or committee of such heir respectively, or if the personal estate of such defendant shall have been levied upon, or possession thereof delivered to the plaintiff or plaintiffs, then his or her executor or administrator, if any such there may be, may and shall be served with a copy of such decree, within a reason- able time after it shall be known to the plaintiff or plaintiffs that the defendant is dead and who is his or her heir, executor or administrator and where he, she or they may respectively be served therewith within the State. Thirdly, Provided always, if any person or persons, so served with a copy of such decree, shall not, 180 COURTS OF EQUITY. [ChAP. XXXII. Decree to be within twelve months after such service, appear and petition to have againsfa per- ^^6 said cause reheard, such decree so made as aforesaid shall son served stand absolutely confirmed against the person or persons so served and not^peti- with a copy thereof, his, her or their respective heirs, executors tioning for a re- and administrators, and all persons claiming or to claim by, from ?welve^nSths. o^ under him, her or them or any of them, by virtue of any act done or to be done subsequent to the commencement of such suit. Defendant may Fourthly, Provided, nevertheless, that if any person, so served r'ehearibg°with-with a Copy of such decree, shall within twelve months after such in twelve service, or if any person, not being so served, shall within three service^or™ years next after the making such decree, appear in court and copy, or with- petition to be heard whh respect to the matters of such decree, when mi^co^py a"d shall pay down or give security for the payment of such costs of the decree as the court shall think reasonable in that behalf, the person or upon him, and persons SO petitioning, his, her or their respective representatives, upon paying or or any person claiming under him, her or them respectively, by ^rTfe TOsts ^ virtue of any act done before the commencement of the suit, may may answer be admitted to answer the bill exhibited, and issue may be joined, ' " and witnesses on both sides examined, and such other proceedings, decree and execution may be had thereon as there might have been in case the same party had originally appeared and the proceedings had then been newly begun, or as if no former decree or proceed- ings had been in the same cause. Fifthly, Provided, nevertheless, Decree in such and be it enacted, that if any person or persons, against whom iT no peu^ion^^ ^"c'^ ^6cree shall be made, his, her or their heirs, executors or for rehearing is administrators, shall not, within three years next after the making th^eeTears! of such decree, appear and petition to have the cause reheard, and pay down or give security for the payment of such costs, as the court shall think reasonable in that behalf, such decree made as aforesaid shall stand absolutely confirmed against the person and persons against whom such decree shall be made, his, her or their heirs, executors and administrators, and against all persons claim- ing or to claim by, from or under him, her, them, or any of them, by virtue of any act done or to be done subsequent to the com- mencement of such suit ; and at the end of such three years it shall and may be lawful for the court to make such further order Such decree as shall be just and reasonable according to the circumstances of a°ain°st^a p^r-^^ ^^^ case. Sixthly, Provided ahcays, that this act shall not extend son residing or be construed to extend to warrant or make good any proceed- unlefs^the^bil?' ^"§^ against any person residing without the State, unless the is founded on ground or cause of action, or the transaction on which the bill may whicKok^ be brought, took place within the limits of the State. j)iace in this Commissions to take testimony may issue directed to any two btate. justices of the peace, who shall have all the powers of commis- to°t'ake test?-^ sioners in chancery, and the rules of proceeding in' all cases of mony to issue, taking such testimony shall be conformable to the method of pro- '^l.icelo^hr ^^^^i"S heretofore observed in the courts of chancery in this State ; eiven unless a Provided, no such testimony shall be taken until at least twenty longer or short- (jayg notice of the time and place of taking the same be dven to er time is or- , •' . r o _ 11, dered by the the Opposite party, unless the court lor suincient reason should ap- court. point any other limited time for the notice, which they may do in Chap. XXXII.] courts of equity. 181 all cases, either by enlarging or shortening the time hereby appoint- ed for taking such testimony, as the case may require. Commissions may also issue to any justice or justices of the Commissions peace to take the plea, answer or demurrer of a defendant, as is may also issue accustomed in cases in chancery with respect to commissioners of answer, &c. of chancery, and the said justice or justices shall have all the power the defendant, of such commissioners for that purpose. Any one judge of the court or judge of the supreme court may judge may is- in the vacation, if it shall be necessary, grant such commissions as sue such com- '. . ,.,;;'". . , missions in va- are above mentioned, or may hunseli examine testimony or take cation, or may the plea, answer or demurrer of the defendant in like manner ; he himself exam- ^ , ... . / 1 ine testimony, may also grant injunctions or ne exeat^ when the necessity oi the&c. case will not admit of a delay, but still subject to the control and May also grant further order of the court, and no ne exeat shall issue where suffi- ■g^™*^J°^g p" cient bail has been taken for the party's appearance. ne exeat. It shall be the duty of the said court to direct the trial of such Court may di- issues, as to the court may appear necessary, according to the rect the trial of •'-*-^ * '-^ , SUCll. ISSUGS 3.S rules and practice in chancery in such cases ; costs shall be paid it thinks nec- by either party at the discretion of the court. The court may at essary. any time during the dependence of the suit require further security ^g"" ^oJ^gT!'* from a defendant, or, on failure thereof, make use of such personal as to requiring process as was formerly used by the court of chancery held in this the'defendant State and deemed incident to the chancery jurisdiction ; and the — and as to is- court shall in all cases have power to order such process to en- to'enforcTks force their sentences and decrees, as have usually belonged to decrees. courts of chancery. 5. It shall be the duty of the several sheriffs in this State to Sheriffs to serve all notices, issuing from clerks and masters in equity, to par- issufng°from ties concerned in all references to them made, and for neglect or clerks and failure to do the same they shall be subject to the same penalties, '^^^ ^"^^^ as by law provided for omission or neglect in serving other pro- cess issuing to them. 6. In all cases where decrees shall be made in any suit in equity Executions for any sum or sums of money, it shall and may be lawful for exe- ^'^aw^and^^ cution to issue thereon against the defendant's body, or against his have the like goods and chattels, lands and tenements, to satisfy such decree and ^'"'^'"^ ®^^*^*' costs, in the same manner as execution may or shall issue at law, and lands and tenements, goods and chattels shall be bound by such decree and execution, in the same manner as lands and tene- ments, goods and chattels are by judgments and executions at law. 7. Whenever any suit shall be brought in any of said courts in A decree for equity, in which security shall be given for the prosecution there- defemiantVay of, and a decree shall be entered up against the plaintiff for the be given costs of the defendant or defendants, it shall be the duty of the sSre"ty for the court, upon motion of the defendant, also to make a decree for prosecution as said costs against the security for the prosecution, whereupon exe- t^g principal?^ cution shall issue jointly against said plaintiff and securities. 8. Where the defendant or defendants in any case, now de- 5. 1816, c. 902. 6. 1787, c. 278, S. 2, ' ' 7. 1831, c. 46, s. 1. 8. 1801, c. 574, s. 1. 182 COURTS OF EQUITY. [ChAP. XXXII. In case of de- fendant's death after service, a sci. fa. may is- sue to make his representa- tives, parties. When plaintiff dies, his repre- sentatives may- make them- selves parties within two terms there- after. No bill, an- swer, &c. to be enrolled till final decree. Court to direct what papers to be enrolled. No injunction to stay an ex- ecution shall issue for a greater sum than plaintiff swears to he just, nor until alter security given. No injunction to issue after four months from the judg- ment at law except in cer- tain cases. Injunction bonds, after dis- solution of the injunction, to be proceeded on like appeal bonds. pending or hereafter to depend in any of the courts of equity with- in this State, shall die after the service of a copy of the complain- ant's bill and subpoena, it shall and may be lawful, on suggesting the death of such defendant or defendants,- to issue a scire, facias against the legal representatives of such deceased person or per- sons, in the same manner and under the same rules, regulations and restrictions as are used in suits at common law, and service of such writ on the legal representatives shall be as effectual and valid to revive and carry on such suit, as if a bill of revivor had been filed against them and they served with a copy thereof. 9. Whenever a party complainant in any suit in equity shall die after fihng the bill, it shall and may be lawful for the legal repre- sentatives of such deceased person to carry on such suit, provided application to that effect be made by such representatives to the court, in which such suit may depend, at or before the second term after the decease of such party and not thereafter. 10. No bill, answer or other paper or proceedings in any suit in any court of equity in this State, (interlocutory decrees except- ed) shall be enrolled, until the cause is finally decreed on, and then only upon motion by the party to take benefit by such decree, and the court shall have power and are hereby directed to adjudge and determine what papers shall and may be enrolled in any suit on motion as aforesaid. 11. No injunction, commanding the stay of an execution ob- tained in any court of this State, except on judgments in actions of detinue, shall be granted by the judges, or any of them, for any other or greater sum than what the complainant or complainants shall on oath declare to be just, and not until such complainant or complainants shall enter into bond with sufficient security, before the master of the court of equity, whence the injunction issues, for the payment into court of the sum complained of and all costs upon the dissolution of the injunction. 12. No injunction to stay an execution shall issue, but within four months after the judgment at law is obtained, unless it shall appear from the oath of the complainant or complainants to the judge, before whom application is made for an injunction, that such application has been delayed in consequence of the fraud or false promises of the plaintiff at law, practised or made at the time of or after obtaining judgment, or unless it shall appear on oath that the said complainant or complainants was or were out of the State at the time of entering up judgment, so that application could not be made within the time aforesaid. 13. In all cases where bonds are given on obtaining an injunc- tion, upon the dissolving of the injunction, said bond shall be pro- ceeded on in the same manner and under the same rules, regula- ulations and restrictions, that bonds given upon appeals from the county to the superior courts are proceeded on. 9. 1801, c.574, s. 2. 10. 1801, c. 574, s. 3. 11. 1800, c. 551, s. 1. 12. 1800, c. 551, s. 2. 13. 1810, C. 794. .'it. Chap. XXXII.] courts of equity. 183 14. No injunction, bill or other process in equity, requiring a In what cases stay of any execution obtained against a citizen or citizens on the sti™eMcmio°ns part of the State, shall be granted by the judges thereof or any of on behalf of them, until the complainant or complainants shall first produce a [^/j^i^Q^^g^' receipt from the public treasurer or other public officer, authorized to give the same, shewing the actual payment and discharge in full of all such part of the judgment obtained as aforesaid, as he or they by their bill of complaint shall not on oath declare is unjust. 15. In any of the courts of equity, where any of the parties de- C^ourt to ap- tendant is an miant or person non compos and resides out oi this dian for infant State, havine no euardian residine within the State, it shall be law- o^ non co??)pos P ■, r 1 -1 • 1- 1 • r defendant re- lul lor the said courts to appoint a guardian to such inlant or per- siding out of son non compos to defend his or her interest in the suit, to which *^ ^^.s^';?- he or she may be defendant. Provided nevertheless, that the said &,c. to have' infant, or person non compos may, at any time within three years ^^■"^^ >,^^^^ after the decree shall be made in said suit, appear in said court cree to appear and petition to be heard with respect to the matter of such de-''i*^°u'"^' '^<^- cree, and such proceedings, decree and execution may be had thereon, as there might have been in case the proceedings had been then newly begun or as if no former decree or proceedings had been in the same cause. 16. In any case which now is or hereafter may be pending in Cause may, any court oi equity, it shall and may be lawlul lor such court, on for hearing, be sufficient cause shown by affidavit rendering such a removal neces- removed to the CI / . . 1 1 • 1 ^ r supreme court. sary lor the purposes oi justice, to order the said cause, betore a hearing, to be removed into the supreme court : Provided, that such removal shall not be permitted until such cause shall have been set down for hearing, nor shall any parol evidence be re- ceived in the supreme court, either before the judges thereof or the jury, wdiom they may cause to be empanelled for the trial of any issues of fact, except witnesses to prove exhibits or other docu- ments. 17. No bill of review or petition for a rehearing shall lie or be Time within allowed, upon a final decree in any of the courts of equity within J^gyje^^j^j" this State, but within five years next after such decree shall have tiiions for re- been made and not after ; saving nevertheless the rights of infants, iie"or"be^albw- femt coverts and persons non compos mentis, so that they avail ed. themselves of the benefit of the writ of error or bill of review within three years after their disabilities shall have been removed. 18. In all cases hereafter, where any clerk and master in equity Clerk and mas- shall sell any real or personal estate, in obedience to a decree oftie to property a court of equity, and shall be authorized by said decree to makesoW "ncier an title to the purchaser or purchasers for the same, the deed of the court. clerk and master of the court ordering the sale shall be held, deemed and taken as good and sufficient to convey, to the purchaser or pur- chasers, such title, interest and estate in the real or personal pro- perty so sold, as the party of record owning the same had therein. 14. U92, c. 3G0, s. 1. 15. 1818. c. 982, s. 3. 16. 1818, c. 962, s. 5. 17. 1828, c. 4, s. 2. IS. 1836, c. 31. /rite or cut off an ear, or disable any limb or member of any other person, or castrate any other person, or cut off, maim or disfigure any of the privy members of any other person, with in- tent to murder, maim, disfigure, disable or render impotent such person, in any such case the person or persons so offending shall, on conviction thereof, be imprisoned for the space of six months and fined at the discretion of the court, before whom such offence shall be tried. Punishment 49. No person sending, accepting or being the bearer of a cepthig ^0T°heaT- challenge for the purpose of fighting a duel, though no death en- ing a challenge sues, shall ever after be eligible to any office of trust, honor or to ng t a ue . ^^^^^ jj^ ^j^jg State, any pardon or reprieve notwithstanding, and shall further be liable to be indicted, and, on conviction before any 45. 1835, c. 17, s. 3. 46. 1805, c. 684. 47. 1820, c. 1041, s. 1 and 2. 48. 1754, c. 56.— 1791, c. 339, s. 2 and 3.— 1831, c. 40, s. 2. 49. 1802, c. 60S, s. 1. Chap. XXXIV.] crimes and punishments. 203 of the courts of this State having cognizance thereof, shall be fined a sum not exceeding two hundred dollars. 50. If any person shall wilfully and corruptly commit perjury on Perjury, how his or her oath or affirmation, in any suit, controversy, matter or^™^^ ^ ^' cause depending in any of the courts of this State, or on any oath or affirmation made or in any deposition or affidavit taken pursuant to the laws of this State, every such person, so offending and being thereof convicted, shall be fined not exceeding the sum of one thousand dollars, and shall stand in the pillory for one hour, at the expiration of which time both ears of the person so offending shall be cut off and severed entirely from the head, and the ears so cut off shall be nailed to the pillory by the officer, and there remain until the setting of the sun ; and the person so offending shall be rendered thereafter incapable of giving testimony in any of the courts of this State, or in any case whatsoever, until such time as the judgment so given against the said offender shall be reversed. 51. If any person shall, by any means, procure another person to Subornation of commit corrupt and wilful perjury, on his or her oath or affirmation punishable. in any suit, controversy, matter or cause depending in any of the courts of this State, or on any oath or affirmation made or in any affidavit or deposition taken pursuant to the laws of this State, the person, so offending and being thereof convicted, shall stand in the pillory one hour, have his or her right ear cut off, and shall be fined at the discretion of the court, in a sum not exceeding one thousand dollars ; and the person so offending shall be thereafter rendered incapable of giving testimony in any of the courts of this State, or in any case whatsoever, until such time as the judgment so given against the said offender shall be reversed. 52. Provided, that it shall not be lawful to sentence the offender Proviso as to to have his ears or either of them cut off, unless the perjury or gyb.'^uttuig off ears. ornation of perjury, of which he is convicted, shall have been com- mitted upon the trial of some capital offence ; and when otherwise committed than on the trial of any capital case, the offender, ou conviction, in Ueu of having his ears cut off, shall be sentenced to receive one or more public whippings, not less than thirtynine lash«s on his bare back. 53. Whereas principal felons frequently escape and elude the Accessories to process of law, whereby accessories cannot be prosecuted and pun- felonies, how i 1 , P 1 , /■•in 1 1 1 /. 1 ^ punishable in ished : tor remedy whereot, it shall and may be lawful to prosecute certain cases. and punish any accessory to felony as for a misdemeanor, to be punished by a fine not exceeding one hundred dollars, and corporal punishment not exceeding thirtynine lashes, or standing in the pil- lory not exceeding two hours, although the principal felon be not before convicted of said felony, which shall exempt the offender from being punished as accessory, if the principal be afterwards convicted. 50. 1791, c. 338, S. 1. 51. 1791, c. 338, s. 2. 52. 1831, c. 12. 63. 1797, c. 485, s. I. 204 CRIMES AND PUNISHMENTS. [ChAP. XXXIV. Receivers of stolen goods, &c. how pun- ishable. Altering the mark or mis- marking cattle, &c. how pun- ishable. Holding out false lights on the sea coast, how punish- able. Counterfeiting gold or silver coins, how pun- ishable. Having in pos- session instru- ments for coun- terfeiting, how punishable. 54. If any person shall receive or buy any property, that shall be feloniously stolen or taken from any other person, knowing the same to be stolen, or shall harbor or conceal any felon, knowing him, her or them to be so, such person or persons shall be taken and received as accessories to said felony, and may be prosecuted as for a misdemeanor and punished as set forth in the preceding sec- tion, although the principal felon be not before convicted of said felony, which shall operate as a bar and prevent the offender from being punished as accessory, if such principal felon shall be after- wai'ds taken and convicted. Provided always, that nothing in these two sections shall be so construed as to prevent accessories to felonies from being prosecuted and punished as heretofore directed by law. 55. If any person shall knowingly alter or deface the mark or brand of any other person's neat cattle, sheep or hog, or shall knowingly mismark or brand any unbranded or unmarked neat cat- tle, sheep or hog, not properly his own, with an intent to defraud any other person, such person or persons, on conviction in a court of record, shall be liable to corporal punishment in the same man- ner as on conviction of petit larceny. 56. Any person who shall make or display or cause to be made or displa3'ed any false hght or beacon, on or near the sea coast within the limits of this State, for the purpose of deceiving and misleading masters of vessels, whereby they may be in danger of shipwreck, shall, on conviction thereof, be fined, or fined and im- prisoned at the discretion of the court. 57. If any person or persons shall make or cause to be made any counterfeit similitude or likeness of a Spanish 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 this State, or shall utter or pass the same, knowing it to be counterfeit, and shall be legally convicted of either of the said offences in any su- perior court of law of this State, the person or persons, so found guilty, shall on the first conviction receive thirtynine lashes on his or her bare back, and, on the second conviction of the above de- scribed offences or either of them, shall receive thirtynine lashes on his or her bare back and be imprisoned for a length of time not exceeding twelve months, and be branded in the right cheek with the letter C. 58. If any person or persons shall have in his or their posses- sion any instrument or instruments for the purpose of making any counterfeit similitude or likeness of a Spanish milled dollar, or other foreign coin made of gold or silver, which is in common use and received in discharge of contracts by the citizens of this State, and shall be duly convicted thereof in any superior court of law of this State, the person or persons so offending shall receive thirty- nine lashes on his or her bare back and be further liable to be fined 54. 1797, c. 4S5, S. 2. 55. 1741, c, 26, s. 2.— 1S22, C. 1155. 56. 1831, c. 42. 57. 1811,0. 814, S. 3. 58. 1811, C.814, s. 4. Chap. XXXIV,] crimes and punishments. 205 at the discretion of the court in the sum of five hundred dollars and be imprisoned not more than twelve months. 59. If any person shall falsely make, forge or counterfeit, or Counterfeiting: cause or procure to be falsely made, forged or counterfeited, or j^^^ p"^jj\^g^j;_^°" willingly aid or assist in falsely making, forging or counterfeiting any able. bill or note in imitation of, or purporting to be a bill or note, issu- ed by order of the president and directors of any bank or corpora- tion within this State, or any of the United States, or any of the territories of the United States, or any order Qr check on any of the said banks or corporations, or any of the cashiers thereof, or shall pass, utter or publish, or attempt to pass, utter or pubhsh as true any false, forged or counterfeited bill or note, purporting to be a bill or note issued by the order of the president and directors of any bank or corporation within this State, or any of the United States, or any of the territories of the United States, or any order or check on any of the said banks or corporations, or any of the cashiers thereof, knowing the same to be falsely forged or counterfeited, with intention to defraud any corporation, body politic or person, every such person, so offending, shall be deemed and adjudged guilty of felony, and, being thereof convicted by due course of law in any court of competent jurisdiction, shall be punished by fine and imprisonment not exceeding three years, putting in the pillory, public whipping not exceeding thirtynine lashes on his or her bare back, all or any of them at the discretion of the court, due regard being had to the nature and circumstances of the offence. 60. If any person shall directly or indirectly pass or attempt to Passing or at- pass to any other person, for the sake of gain, any false, forged or p^^J'gQ'Ji^ter- counterfeited bill or note, purporting to be a bill or note issued by feit notes, &c. order of the president and directors of any bank or corporation ^ble.^™^^ Vv^ithin this State, or any of the United States, or any of the ter- ritories of the United States, or any false, forged or counterfeited order or check upon any of the said banks or corporations, or any of the cashiers thereof (knowing the same to be falsely forged or counterfeited,) every such person so offending shall be deemed and adjudged guilty of felony, and, being thereof convicted by due course of law in any court of competent jurisdiction, shall be pun- ished by a fine to the use of the State, not exceeding five thou- sand dollars, and be imprisoned, not exceeding three years, stand- ing in the pillory, public whipping, not exceeding thirtynine lashes on his or her bare back, all or any of them at the discretion of the court, due regai'd being had to the nature and circumstances of the offence. 61. If any person or persons shall knowingly and designedly, ^j^*'^'^"J_s ^y by means of any forged or counterfeited paper in writing or in how punish- print, or by any false token, or other false pretence or pretences '^'^^^• whatsoever, obtain from any person or persons or corporation with- in this State any money, goods, property or other thing of value 59. 1S19, c. 994, s. 1. 60. 1819, c. 994, s. 2. 61. 1811, c. 814, s. 2. !i:. . I 206 CRIMES AND PUNISHMENTS. [ChAP. XXXIV. or any bank note, check or order for the payment of money, issu- ed by or drawn on any bank or other society or corporation with- in this State, or any of the United States, or any treasury warrant, debenture, certificate of stock or other pubUc security, or any order, bill of exchange, bond, promissory note or other obhga- tion, either for the payment of money or for the delivery of speci- fic articles, with intent to cheat or defraud any person or persons, or corporation of the same, such person shall be held and deemed guilty of fraud and deceit, and, being thereof legally convicted in any court of competent jurisdiction, such offender or offenders shall be punished by fine and imprisonment, not exceeding twelve months, putting in the pillory, pubhc whipping, not exceeding thir- tynine lashes on his or her bare back, all or any of them at the discretion of the court, due regard being had to the nature and cir- cumstances of the offence. Punishment for 62. If any person shall open, set on foot, carry on, promote, carrying on lot- j^^j^g qj. (Jraw, publicly or privately, a lottery, by whatever name, style or title the same may be denominated or known, or if any person, by such ways and means, expose or set to sale any house ' or houses, lands or real estate, or any goods or chattels, cash, or written evidence of debt, or certificates of claims, or any thing or things of value whatever, every person, so offending, shall, on conviction thereof, be fined in any sum not exceeding two thou- sand dollars, or be imprisoned not exceeding six months, or both, at the discretion of the court. Punishment for 63. If any person or persons shall vend, sell, barter or dispose selling tickets, ^f ^^^y lottery ticket or tickets, order or orders for any number or teries. shares in any lottery, or shall in any wise be concerned in such lottery, by acting as agent in this State for or on behalf of any such lottery, to be drawn or paid either out of or within this State, every person shall, upon conviction thereof, be fined in any sum, not exceeding two thousand dollars, or be imprisoned, not exceed- ing six months, or both at the discretion of the court. Provided^ that nothing in this act contained shall be so construed as to pre- vent the drawing of any lottery authorized by the laws of this State or the sale of any tickets in such lottery so authorized to be drawn. Gamingtables 64. All pubfic gaming tables, such as E. 0., A. B., and A. B. prohibited. q^ ^^^^ banks, pass die tables, and all others of whatever nature or by whatever name or denomination they shall be called, are hereby totally forbidden to be used in this State by any person or persons whatsoever ; and all justices of the peace, sheriffs, con' stables and the commissioners of pohce in the several towns of this State, ai'e hereby authorized and directed, in case of informa- tion made to them or any of them on oath that such gaming table is in the possession and use of some person within the limits ofj their jurisdiction, to destroy and annihilate the same by every ; means in their power ; and each and every person, who shall offer to keep up or use the same, shall be subject to the penalty 62 1831, c. 19, s. 1. 63. 1834, C. 19, 8. 2. 64. 1791, C. 336.— 1798, c. 502, S. 2. II i Chap. XXXIV.] crimes and punishments. 207 I of two thousand dollars to be recovered in an action of debt by any person suing for the same, onehalf to the use of the party suing, the other half to the use of the State : Provided, that nothing contained in this act in relation to gaming tables, shall be con- strued to extend to biUiard and backgammon tables. 65. All moneys exhibited for the purpose of alluring persons to 5l°°«y staked 1 bet against at any game, and all moneys actually staked or betted be seizedr whatsoever, and all species of other property, shall be Hable to be seized by any justice or justices of the peace, or by any other person or persons under a warrant from a justice of the peace, wheresoever the same may be found ; and all such moneys so seiz- ed, shall be accounted for and paid, by the person or persons mak- ing the seizure, to the wardens of the poor of the county, wherein the seizure shall be made, and applied by the said wardens in aid of the poor tax, deducting thereout fifty per centum upon all mon- eys so seized, to be paid to the person or persons making the said seizure. 66. Any person, who shall oppose the destruction of any of the Penalty for op- said tables or the seizure of any such moneys, as above described, P°^™? '^^/fr , ^ . J^ ' . ' struction of the by any person or persons so authorized to make it, shall be liable tables, or the to a penalty of one thousand dollars, to be recovered in any court ^^^""^ °^ ^''® of record for the use of the State, and shall be further liable to the action of any party grieved by such opposition ; and any per- son or persons, wJho shall take or carry away any part of the said money after the said seizure shall be declared, shall be guilty of a misdemeanor, and be liable to be indicted or prosecuted therefor, and on conviction fined at the discretion of the court trying the same. 67. Any person whatsoever, who shall suffer any of the games Penalty for suf- played at the tables commonly called A. B. C, E. 0., or faro in™|bfes"in bank, or any other gaming table or bank of the same or like kind one's house, under any denomination whatever, to be played in his or her house or in a house of which he or she hath at the time the use or pos- session, shall for every such offence forfeit and pay the sum of two hundred dollars, to be recovered in any court of record ; and Sheriff to sue it shall be the special duty of the sheriff of the county, in which ^°' ^^^ P'^^^^^^- such offence may be committed, to sue for and recover the said penalty in the name of the governor for the time being, for which services the sheriff, so suing and recovering, shall be allowed twen- ty per centum, the remainder of the penalty to be accounted for by him and paid into the public treasury in the same manner as he accounts for and settles the public taxes ; and every sheriff, who shall fail or neglect, after information to him made, or after the facts shall come to his knowledge, to perform the duties here re- quired, shall forfeit and pay fifty dollars, to be recovered before any competent jurisdiction to the person suing for the same, and pay the costs of prosecution. 65. 1798, C. 502, s. 3. 66. 1798, C. 502, s. 4. 67. 1798, c. 502, s. 3.— 1800, c. 552. '1 208 CRIMES AND PUNISHMENTS. [ChAP. XXXIV To keep up 68. In addition to the penalties herein prescribed, each and every or to pfa^y at^^' P^^'son who shall construct, erect, keep up or use any public gam- them, indict- ing table, or place at which games of chance shall be played, by ^ ^' whatever named called, shall be subject to indictment in any court of record having jurisdiction of the offence, and, upon conviction, shall be fined at the discretion of the court not less than two hun- dred dollars and imprisoned not less than one calendar month ; and each and every person, who shall play, at any of the gaming tables forbidden by this act, any game of chance and bet any money or property, whether the same be in stake or not, or who shall bet at any such game, shall be deemed guilty of a misdemeanor, and, upon indictment and conviction in any court of record having juris- diction of the offence, shall be fined at the discretion of the court not less than ten dollars. Persons play- (59. Every person who shall play at any same of cards in any public in*^ c3.rQS m sl vj ± j ^ j o ^ , public house, house or tavern, or house where spirituous liquors are retailed, or indictable. Jn any out house or store attached thereto, or any part of the pre- mises occupied with such house, and bet any money or property, whether the same be in stake or not, and every person who shall ' bet on any such game so played, shall be deemed guilty of a mis- demeanor, and, on conviction thereof, shall be fined a sum not less than ten dollars. Tavern keepers ijq jf any tavern keeper, ordinary keeper, or keeper of a house and ret£LilGrs oi •' * ."^^ -*■ spirituous li- of entertainment, or retailer of spirituous hquors, though he or she quors,nidictable ^^^^ j^qj- keep entertainment for travellers, shall suffer any game of gaming in their cards, at which money or other property is bet, whether the same houses. ]jg j^ stake or not, to be played in his or her dwelling house, out house or store, or any part of the premises wherein he or she lives, or shall furnish persons so playing with drink, or any thing for their comfort or subsistence during their time of playing, he or she shall be deemed guilty of a misdemeanor, and on conviction thereof, shall be fined and imprisoned at the discretion of the court: Provided, that the said fine shall in no case exceed ten dollars, nor the imprisonment thirty days. Personsjte^^- j^ ^^^y person or persons, who shall steal or sell any free negro free negroes in or free negroes or persons of mixed blood, knowing the same to Bunisliable ^°^ ^^ ^^^^ °^ Stolen, or shall by violence, seduction or any other means, take or convey away any free negro or free negroes or persons of mixed blood from one part of this State to another, with an in- tention to sell or dispose of such free negro or free negroes or per- sons of mixed blood, or appropriate the same to his, her or their own use, and be thereof legally convicted, shall, for every such offence, be fined not less than one hundred dollars nor more than one thou- sand dollars, and imprisoned not less than three months and not more than eighteen months. The clerk who >j2. If any clerk of the court of pleas and quarter sessions shall issues 3. license *^ ■"■ for the mar- knowingly issue any license for marriage between any free negro or 68. 1835. c. 3, s. 2 and 3. 69. 1799, c. 526.— 1801, c. 581.— 1831, c. 26. 70 1799. e. 526.-1801, c. 531.— 1831, c. 26. 51. 1800, c. 562. 72. 1830, c. 4, s. 2. »;^ ^ Chap. XXXIV.] crimes and'ttjnishi\Tents. 209 any free person of color and a white person, he shall be guilty of riage of a free a misdemeanor, and, upon conviction before any court having juris- l^^^he persoli diction, shall be fined and imprisoned at the discretion of the court ; and the justice, and any clergyman, minister of the gospel or justice of the peace, j.ie'i ^ch per-' who shall knowingly marry any free negro or free person of coloi- sons, shall be to a white person, shall be guilty of a misdemeanor, and, upon con- ^ictment" ^°' viction in any court having jurisdiction, shall be fined and impris- oned at the discretion of the court. 73. Any person v/ho shall entice or persuade any slave to absent Persons har- himor herself from his or her owner's service, or who shall harbor gf™! {^"^^^^ or maintain, under any pretence whatever, any runaway slave, shall, punishable. for every such offence, forfeit and pay to the owner of such slave the sum of one hundred doUai's, to be recovered by action of debt, before any jurisdiction having cognizance thereof, and be further liable to the said owner in an action for damages ; and such person shall also be subject to a penalty of one hundred dollars, to be re- covered before any justice of the peace, by any person suing for the same, the one half to the use of the informer, the other half to the use of the wardens of the poor of the county where suit is brought. And the person committing such offence shall, moreover, be sub- ject to indictment therefor, and, upon conviction, shall be fined at the discretion of the court not exceeding one hundred dollars, and imprisoned not exceeding six months. 74. Any free person who shall hereafter teach, or attempt to Teaching teach, any slave within this State to read or write, the use of figures or write the (.excepted, or shall give or sell to such slave or slaves any books or ^^^^ of figiires /pamphlets, shall be hable to indictment in any court of record in dfctable. ' ^'^ 'this State having jurisdiction thereof, and, upon conviction, shall at the discretion of the court, if a white man or woman, be fined not less than one hundred dollars nor more than two hundred dol- lars, or imprisoned, and if a free person of color, shall be fined^ imprisoned or whipped, at the discretion of the court, not exceed- ing thirty nine lashes, nor less than twenty lashes. 75. If any person or persons shall buy of, traffic with, or re- f ^'i^'^J ^*^^ ceive from, any slave or slaves any cotton, tobacco, wheat, rice, siaves^for cer- oats, corn, rye, pork, bacon, beef, leather, raw hides, iron castings, tam articles, farming utensils, nails, meal, flour, spirituous Hquors or wine, peas, salt fish, flax, flaxseed, hogs, cattle, sheep, wool, lumber, staves, tar, pitch, tnrpentine, fodder, shingles, hoops, white oak heading, potatoes, mutton, cotton or woollen cloth, yarn, wearing appai'el, or gold or silver bullion ; or if any person or persons shall sell, barter with or dehver to any slave or slaves, any goods, wares and merchandise, or other article of personal projDerty, every person, so offending, shall, for each offence, forfeit and pay the sum of one hundred dollars, to be recovered by warrant before any justice of the peace, and applied, onehalf to the use of the party suing for the same, the other half to the wardens of the poor of the county : Provided, however, that it shall and may be lawful for any person 73. 1741, c. 35, s. 23 —1.791, c. 33.3, s. 4.— 1S21, c. 1120.— 1830, c. 8. 74. 1830, c. 6, s, 1. 75. 1826, c. 13, s. 1.-1823, c. 32, s. 1.-1830, c. 15.— 1833, c. 19. VOL. I. 27 210 CRIMES AND PUNISHMENTS. [ChAP. XXXIV. Proviso that such trading may be in the day time, and- with the writ- ten permit of thp master, &c. of such slaves. Proviso not to extend to spir- ituous liquors, fire arms, pow- der, shot or lead. Penalty on masters of ves- sels for enter- taining slaves and free per- sons of color on board their vessels at cer- tain times with- out a written permit. Trading with slaves to be indictable. What circum- stances shall be taken as pre- sumptive ev- er persons in the day time only, Sundays excepted, viz : between the rising of the sun and the setting thereof, to buy of, traffic with, or receive from any slave or slaves, any such article or articles, as aforesaid, for which he, she or they may have a permission in writing from his, her or their owner or manager, to dispose of the same : and further, it shall and may be lawful for any person or persons in the day time as aforesaid, to sell and deliver to any slave or slaves, any goods, wares or merchandise, or other thing, (al- ways excepting spirituous liquors, fire arras, powder or shot, or lead, unless these articles be for the owner or employers of such slave or slaves, or by the order of the owner or person having the manage- ment of the same,) in exchange for, or payment of the money, or article or articles which the said slave or slaves may have been, by the written permission aforesaid, authorized to sell. 76. It shall not be permitted for the master or commander of any vessel to entertain any slave, negro, or mulatto on board such vessel, at any time between sunset and sunrise, nor during the Sabbath day, unless such slave, negro or mulatto as shall belong to the vessel, or shall have a pass from his, her or their master or mistress, or from some justice of the peace, expressing the time when and the business for which they go on board ; and if any slave, negro or mulatto, who has not such pass, or is not statedly employed on board the vessel as one of the hands, shall be found on board any vessel in any bay, harbor, creek or river within this State on the Sabbath day or in the night, between sunset and sun- rise, he shall be presumed to have been disposing of stolen goods ; arid the master or commander of such vessel, on complaint and conviction before any two justices of the peace, shall be subjected to a fine for entertainment of such slave, negro or mulatto, of ten dollars for the first offence, and twenty dollars for every succeed- ing ofience, to be applied to the use of the poor of the county in which conviction shall be had ; but any person, dissatisfied with the judgment of the said two justices, shall have the right of appealing to the court of the county, the determination whereof shall be final, the person appealing to be subject to the same regulations as in cases of other persons appealing from the judgment of a justice. . 77. The offences, mentioned in the seventyfifth section, shall moreover be indictable in the county or superior courts of law, and the defendant, on conviction, shall be fined or imprisoned at the discretion of the court ; the fine however not to exceed fifty dol- lars, or the imprisonment three months ; and if it shall appear on the trial that the defendant is a licensed retailer of spirituous liquors by the small measure, he or she shall also forfeit his or her retail- ing license, and shall be incapable of taking a new hcense for the space of two years from and after the date of his or her con- viction. 78. If any slave or slaves shall be found in any storehouse, warehouse, tippling shop, or other place fitted up for trading, un- less sent by his, her or their owner, overseer or employer, after 76. 1787, c. 267. 77. 1826, c. 13, s. 2. 78. 182G,' c. 13, s. 6. N Chap. XXXIV.] crimes and punishments. 211 the hour of nine o'clock at night, or before daybreak in the morn- idence of such ing, or on the Sabbath day ; or if any slave or slaves shall be found the*^oTOer^oF^ at any time in any of the aforementioned places, unless sent as stores and aforesaid, where he, she or they shall have been permitted to re-^ °P^' main for the space of fifteen minutes, with the door of the afore- mentioned place closed ; or if any slave or slaves shall -be seen to carry into the aforementioned places any article or articles sup- posed for sale, and not bring the same out ; or if he, she or they shall bring out of the said places any article or articles which may have been purchased therein, this shall be taken and received as presumptive evidence against the person or persons owning or keeping the storehouse, warehouse, tippling shop, or other place fitted up for trading, of an unlawful trading with such slave or slaves ; to be rebutted, however, hke other presumptions, by other circumstances in favor of the accused. 79. Tf any person shall fraudulently give, or cause to be given. Penalty for to any slave, the property of another, a permission in writing to Jiving ^"a^ sell, trade or traffic in any article of personal property, without the slave a written consent or authority of the master, owner, or the person having the ^^li^^ ^° management of such slave, he, she or they, so offending, shall, upon conviction before any justice of the peace in the county where such offence is committed, forfeit and pay the sum of one hundred dol- lars, one half to the use of the person suing for the same, and the other half to the use of the wardens of the poor of said county. 80. Either of the parties, or master of the slave, being dissat- Appeals allow- isfied with the judgment of the justice or the verdict of the jury, prosecution° or may pray an appeal therefrom, as in other cases : Provided, that indictment for no suit or indictment shall be prosecuted for any violation of tjie slaves^ ^^ seventyfifth and seventyninth sections of this act, unless such suit or indictment be commenced within twelve months after such violation. 81 . If any person shall retail spirituous liquors by the small mea- Retaiiine spir- sure in any other manner than is permitted by law, such person or ituous liquors persons, so offending, shall be subject to indictment, either in the jjg^g^j.g°j^j^}j. superior or county court, for the same, and, upon conviction, shall out a license, be fined at the discretion of said court a sura not less than five dol- "^ ^^^^ ^' lars for each and every offence. 82. It shall be the duty of the sheriffs of the several counties of ^^f^^^^ ^° f"'- 1 . c-i 11 CI- r iiish county at- thjs btate, at each and every term oi then* county courts, to lur- tomey with a nish the prosecutina; attorneys of their respective counties with a [i*^ .°f *4°*^ X o J X tlSVinS" IIC6IIS6S list of all such persons in their county as have, within the term of to retail, to be twelve months last past, obtained a license to retail spirituous liquors ^'^^^^j^^yj^ *^ by the small measure, which list shall be handed over to the fore- man of the grand jury, and the grand jury instructed as to their duty in relation thereto, by. the prosecuting attorney. 83. If any person shall hunt in the woods with a gun in the night Hunting in the •' ' CI o woods with a ^n by firelight, 79. 1826, c. 13, s. 3. indictable. SO. 1826, c. 13, s. 7. 81. 1825, c. 1272, s. 5. S2. 1825, C. 1272, s. 4. 83. 17B4, c. 212, s. 1.— 1801, c. 595. 212 CRIMES AND PUNISHMENTS. [ChAP. XXXIV. time, by fire light, the person, so ofFending, shall, upon convic- tion by indictment in any court of record, be fined by such court forty dollars, to be apphed to the use of the county where the offence was committed ; and if he shall fail or refuse to pay such fine, he shall be imprisoned by the court not exceeding two months, and shall also stand committed until the costs are paid. Persons send- g4_ jf ^jjy slave or slaves shall hunt in manner hereinbefore men- ing their slaves . i , "^ p r i i i • ^ to hunt in the tioned, the master oi such slave or slaves, or the person m whose woods, &c. service he or they may be, shall, upon due conviction of such I10"W "PUIUSJl- * . . able. slave or slaves, before any justice of the peace of the county wherein such offence may be committed, forfeit the sum of ten dollars, to be levied by a warrant, immediately to be issued by such justice, for that purpose ; and if any person shall be duly convict- ed, as aforesaid, of sending his slave to hunt with a gun in the night, he shall be subject to the same pains as are provided by the preceding section, to be inflicted on fire hunters. An accomplice §5, When more persons than one are engaged in the commission uponVving'^^' of the offence of fire hunting, it shall and may be lawful for one of evidence them to give evidence against any one or all others concerned ; and hfwltobedis- his testimony shall be held and deemed to be as effectual, and charged. ghall have equal weight, as if given by any person perfectly disin- terested and innocent of the offence, giving like information of the same facts, subject in other respects to the general rules of law respecting witnesses ; and such witness, upon giving such infor- mation, and after due conviction of one or more such offenders, shall be acquitted and held dischai'ged from all penalties and pains, to which he was subject from his participation in such offence. T, ,, 86. It shall not be lawful, under any pretence whatever, for any Penalty on any ' . f i i • i • i ■ person or cor- person or persons, or any corporation, school or academy within this sufn^^due^bills' State, which now is, or hereafter may be established, to issue any bill, order, ticket, promissory note, or any other species of secu- rity, whatever may be its form or name, commonly called due bills, with an intention to evade this section, under the penalty of twenty dollars, for each and every bill, order, ticket, promissory note, or other species of security, whatever be its name or form, com- monly called due bills so issued. Penalty for ' 87. It shall not be lawful for any person or persons to pass or cefvk.„ Tc IT, a sum less than 90. 11 any person or persons, bodies corporate, company or asso- one dollar, to be ciation, shall, without the authority of the legislature first had, issue indictable, any promissory notes commonly called bank notes of any value, Any person or With intention that the same should circulate and be received as a suing notes to substitute for money, he, she or they, or the persons composing P^^ffo^'P^^n^y' . ^ *■ , , jTo ^vitbout bein^ the aforesaid bodies corporate, company, or association, shall be authorized by prosecuted by way of indictment, at the instance of the State, in jaw so to do, any of the courts of record thereof, and on conviction shall be able, fined in the sura of two hundred dollars, and be imprisoned at the discretion of the court, not exceeding six months. 91. All fines and penalties, which may arise from convictions j^/^^gg^^^^^i^.' for the offences prohibited by the five preceding sections, shall be, propriated. and they are hereby appropriated, onehalf to the use of the pros- ecutor, the other to the use of the county where the offence was committed. ^^ - > . ^ goods'. 4! /i=<^-3 . ^^ - 2^ - r3 88. 1816, c. 900, s 89. 1816, c. 900, s 90,1816,0.900,8.7. ,■ i *^ a'^ent or oner £L any offence of a capital nature within this State, and of having fled reward, for the beyond or out of the jurisdiction thereof to any of the United ^PP.^?^*^"!^"""^ States, either to employ a special agent with a sufficient guard or this State, escort to pursue and apprehend such fugitive or fugitives from pun- ch'^fge'l with ishment, or to issue his proclamation and therein and thereby of- fences. fer a reward, not exceeding four hundred dollars, according to the nature of the case, as in his opinion may be sufficient for the pur- 1. 1715, c. 1.— 2 and 3 Phil, and Mary, c. 10. 2. 3 Edw. 1, c. 9. 3. 5 Hen. 4, c. 10. 4. 1800, c. 5C1. 216 CRIMINAL PROCEEDINGS. [ChAP. XXXV. pose, to be paid to such person or persons as shall apprehend such fugitive or fugitives, and deliver him or them to such person or persons at such place as in said proclamation shall be directed ; and it shall also be lawful for him from time to time to issue his war- rants on the public treasurer, for sufficient sums of money to de- fray the expenses of such special agent and guard or escort, or to pay the reward offered by such proclamation upon the delivery of such fughive, in manner as therein directed, for which sum or sums of money the treasurer shall be allowed in the settlement of his accounts. Judges, or any 5. Any judge of the supreme court or of the superior courts two justices of Qf ]g^ oyrid equity, or anv two iustices of the peace, on satisfactory trie PG31C6 iiia,v , x j ^ •/ _*j^ ^x ■'^ _ ^ j commit fugi- evidence adduced that any fugitive has committed within the United tives from other g^ates any petit larceny or other offence, the punishment whereof St3,t6S Cn3.r2"6Cl •' JL •' -^ i- with certain shall extend to affect life, limb or member, shall have full power crimmal offen- ^^^ authority to commit such fugitive to any jail within this State for the space of six months, unless sooner demanded agreeably to the directions of an act of congress in such cases made and pro- vided ; and if no demand is made within said term of time, then said fugitive shall again be liberated. No person to 6. No person shall be arrested or charged before any court on a'presentment ^ presentment made by a grand jury, before the attorney acting for before indict- ' the State shall prepare a bill, and the bill be found by the grand mentfouna. j^^y tO be a true bill. Name of the 7. When any presentment shall be made of any offence by a livino-^Worm- §^"3"^ j^'^J? upon the knowledge of one or more of their body, the ation, or of the name or names of such grand juror or jurors, giving information, endOTsed on a*' '^'^^ be endorsed on the presentment ; and when any presentment presentment, or information shall be made by the grand jury of any offence upon the testimony of a witness, called upon by the grand jury to give testimony, the name of such witness shall hkewise be endorsed thereon. Indictments for g_ jj-, g]} trespasses and other misdemeanors, except the of- with certain ex- fences of perjury, forgery, mahcious mischief and deceit, the ceptions, must prosecution shall commence within tv/o years after the commission be commenced ^,-1.1 1 • i i c 1 1 -n within two oi the said trespasses and misdemeanors, and not alter ; and no bill years. Qf indictment shall be found or presentment made by the grand jury of any county in this State, where the offences aforesaid shall have been committed two years next before the finding of the said indictment or making the said presentment : Provided, that in case any person or persons, committing any of the said offences, shall abscond from the county in which the offence was committed, or conceal him or herself, or the said offences shall have been com- mitted in a secret manner, then the said trespasses and misdemean- ors shall and may be prosecuted within two years after the return or apprehension of the offender, or discovery of the offence : Se'luT'TnentTs P^^ovided alwttys, that when any prosecution shall be commenced arrested, or a within the time prescribed by this section, and judgment shall be nolle prosequi entered ■ , 5. 1810, c. 736, s. 1 and 2. 6. 1797, c. 474, s. 3. 7. 1797, C. 474, S, 2. 8. 1826. c. 11. Chap. XXXV.] criminal proceedings. 217 arrested for any defect in the indictment, or a nolle prosequi shall be entered, the computation of time in such cases shall be made from the time such prosecution shall have terminated and not otherwise. 9. All process, warrants and precepts, issued by any judee or When criminal ~^. ' J ^ r '' . i •>■, ^ process may is- justice 01 the peace, or clerk oi any court, on any crimmal prose^ sue and be re- cution on behalf of the State, may issue at any time, and be made tumable. returnable to any day of the term of the court, to which such war- rant, process or precept is returnable, and the proceedings on criminal suits and prosecutions shall be agreeable to the practice ^gedi™ s^o^be heretofore in use, except where the same is or may be otherwise as heretofore in directed. "®^" 10. When any sheriff or his legal deputy shall arrest the body Sheriff to take of any person, in consequence of the writ of capias, issued to him offence is bail- by the clerk of any court of record on an indictment previously ^^^e. found, it shall and may be lawful for said sheriff or deputy, if the crime charged is bailable, to recognize said offender and take bail in nature of a recognizance, for his appearing at the next succeed- ing court of the county, where such offender ought to answer, and where such bill hath been found, to be guided and directed in this matter by the same rules and regulations as have heretofore gov- erned justices of the peace. 11. Every person, accused of any crime or misdemeanor what- ^^'■^°"® ^9- , •^ ■*■ "^ . cuseci entitled. ever, shall be entitled to counsel in ah matters which may be to counsel, necessary for his defence, as well to facts as to law. 12. In aU criminal prosecutions, which may be had by indict- J^°J°'^^'^''^^"^ *■ , . , to be Quasliecl ment or presentment, it shall be sufficient, for all intents and or judgment purposes, that the bill shall contain the charee against the criminal, ^"'^^'H^"'^ i , ... . merelv torinEil expressed in a plain, intelligible and explicit manner ; and no bill objections, of indictment or presentment shall be quashed, or judgment arrest- ed, for or by reason of any informality or refinement, where there appears to the court sufficient in the face of the indictment to induce them to proceed to judgment. 13. It shall and may be lawful for every defendant, who shall ^g^^fg^^^fj^gl be charged by indictment with the publication of a libel, to prove, the defendant on the trial for the same, the truth of the facts alleged in the bill S^n ev-^^ of indictment, and upon the introduction of testimony, if it shall idence. appear to the satisfaction of the jury that the facts are true, with the publication whereof the defendant stands charged, such evi- dence shall be deemed to be a complete justification of the charge. 14. In all cases of felonious homicide, where the assault shall gj^^]^"s^"u^one have been committed in one county within this State and the per- countj^ and the son assaulted shall die in any other county thereof, the offender another^ the shall and may be indicted and punished for the crime in the countv offender maybe where the assault was made. ' assauh was '^' 15. In all cases of felonious homicide, when the assault shall made. 9. 1777, c. 115, s. 15. 10. 1797, c. 474, s. 4. 11. 1777, c. 115, S. 85. 12. 37 Hen. 8, c. 8.— 1784, c. 210, s. 2.— 1811, c. 809. 13. 1803, c. 632. 14. 1831, c. 22, s. 1. 15. 1831, c. 22, S. 2. VOL. I. 28 218 CRIMINAL PROCEEDINGS. [ChAP. XXXV. When an as- have been committed within this State, and the person assaulted ^^^hirstate^ shall die without the limits thereof, the offender shall and may be and the death indicted and punished for the crime in the county where the as- the offender ^^"^*' ^^^ made, in the same manner to all intents and purposes as maybe tried in if the person assaulted had died within the Hmits of the State, this State. ^q j£ ^^^ person, being arraigned upon or charged with any termed for a de- indictment for felony or misdemeanor, shall stand mute, of malice, fendant when qj. ^[\\ not answer directly to the indictment, in every such case, onacrimimir it shall and may be lawful for the court to order the proper officer charge. to enter a plea of "not guilty" on behalf of such person ; and the plea, so entered, shall have the same force and effect as if such person had actually pleaded the same. In capital cases, 17. Whenever any judge of the superior courts shall deem it issVe'^alpeci^a^ necessary to a fair and impartial trial of any person or persons, venire facia». charged with a capital offence, he is hereby authorized and em- powered to issue to the sheriff of the county, in which such court maybe, a special writ oi venire facias commanding him to sum- mon such number of the freeholders of said county, as he the judge may deem sufficient, (such number being designated in said writ,) to appear on some specified day of said term as jurors of said court ; and it shall be the duty of the sheriff to proceed forth- with to execute said writ, and return it to the clerk of said court on the day, to which the same shall be returnable, with the names of the jurors he shall have summoned. Penalty on the jg. If any sheriff shall neglect or fail duly to execute and re- executino- it, turn such writ of venire facias, he shall be fined by the court not and the jurors exceeding One hundred dollars ; and all jurors, so summoned, ance. ' shall attend from day to day until discharged by the court, under the same rules, regulations and penalties as are now prescribed by law for other jurors. In capital cases jg^ Everv person on trial for his life may make a peremptory defendant may , ,, r t- r • i • ti . • i r • i ■ i challenge challenge 01 thirtynve jurors, and m all trials lor cnmes and misde- thirtyfive ju- meanors, other than capital, the defendant or defendants shall have rors 111 otncrs . • . • four, and may the right of challenging peremptorily and without shewing cause have the assist- (.]^g number offour jurors ; and to enable the defendants to exer- in making such cise this right, it shall be the duty of the clerk in all such trials to challenges. lead over the names of the jurors on the panel, in the presence and hearing of the defendant or defendants, his, her or their coun- sel, before the jury shall be empanelled to try the issue, and in all cases of trial, whether for capital or inferior offences, the defen- dant or defendants shall have the aid and assistance of counsel in making challenges to the jury. In capital cases 20. In all Criminal cases of a capital nature, the prosecuting counsel may officer on behalf of the State shall have the right of challenging challenge four peremptorily four jurors, Provided said challenge is made before torily. ^^"^^"'^ the juror is tendered to the prisoner ; and if he will challenge more than four jurors he shall assign of his challenge a cause eer- ie. Amendment. 17. 1830, c. 27, s. 1. 18. 1830, c. 27, s. 2. 19. 1777, c. 115, s. 85.-1812, c. 833.— 1801, C. 592, s. 1.— 1S26, c. 9. 20. 1827, c. 10.— 33 Edw. 1, Stat. 4. Chap. XXXV.] criminal proceedings. 219 tain, and in all other cases of a criminal nature no challenge shall be allowed in behalf of the State, except for a cause certain, and in all cases of challenge for cause certain, the same shall be in- quired of according to the custom of the court. 21. If any person, indicted for any felony or misdemeanor. Peremptory shall challenge peremptorily a greater number of the men returned yond the num- to be of the jury, than such person is entitled by law so to chal- b^r allowed by lenge in any of the said cases, viz. thirtyfive in cases of capital void, felony and four in other cases, every peremptory challenge, be- 'yond the number allowed by law in any of the said cases, shall be entirely void, and the trial of such person shall proceed as if no such challenge had been made. 22. Upon the conviction of any felon for robbing or stealing On conviction any money, goods or chattels of any description whatever, the robbino-°or °^ person or persons, from whom such goods, money or chattels were stealing goods, robbed or stolen, shall be entitled to restitution thereof ; for the s^all be^e- ^ more certain effecting of which, it shall be in the power of the stored. court, before whom such conviction is had, to award restitution of the articles so robbed or stolen, and to make all such orders and issue such writs of restitution or otherwise as may be necessary for that purpose. 23. When an indictment shall be found by any of the grand t^owt may, in jurors within this State and a nolle prosequi afterwards entered, direct the pros- it shall and may be lawful, on apphcation, for the court, in which ^^utor to pay such indictment was preferred, to say and determine whether such prosecution was promoted on frivolous or malicious pretences or grounds ; if so, to decree that the prosecutor should be subject to pay and discharge the costs thereof. 24. The several courts of law are empowered and authorized, .^^'^^"^^'P^y ,. • r 1 ^ r ^ • i • . . , be granted by upon application oi the defendant, to grant new trials in criminal the court when cases, when the defendant or defendants are found guilty, in the ^^^ defendant ,11 , , . , "^ . . IS convicted. same manner and under the same rules, regulations and restrictions as m civil cases. 25. It shall be the duty of the county and superior courts of ^e a"^ointed ^° law to appoint a special day in their respective terms, on which for the trial of the State's business shall be taken up and disposed of, and no per- ^^^|gf,*^^^g^gl°4 son, recognized or summoned to attend on indictments found, shall must give no- be entitled to demand or receive any compensation for attending?''^®' '^"^ff '""^^ 1 -ri-ii*^! ^1-1 ■ -1 issue subpoe- any time previous thereto : Frovided, that nothing herein contained nas, &c. ac- shall be construed to prevent the court from proceeding with the cordmgly. State's business on a succeeding day or days, until the whole is finished, and that in capital cases, witnesses and other persons may be required to attend on a day preceding the State's day and be paid accordingly. It shall be the duty of the clerks of the several courts, where an order is made designating the State's day, to give notice thereof by advertisement at the court house and three or more public places in their respective counties, and the clerks 21. 22 Hen. 8, c. 14. Amended. ,■ . 22. 21 Hen. 8, c. 11. 23. 1797, c. 474, s. 1. 24. 181.5, c. 89.5. Amended. 25. 1822, c. 1133, s. 2, 3 and 4. 220 CRIMINAL PROCEEDINGS. [ChAP. XXXV. shall issue subpoenas and take recognizances, conformably to the provisions of this section of this act. How the petit ^^- In the trial of all pleas and prosecutions for offences not jurors shall be capital, unless in cases where the court may otherwise direct, pe- nTt°caprtaT^^^ tit jurors, as well talesmen as those of the original panel, shall be sworn or affirmed (as the case may be) well and truly to try all issues of traverse that shall come before them during the day ; nothing herein contained however shall be construed to affect in any degree the usual challenges in law, either to the whole or any of said jurors. Pay of witness- 27. All witnesses, who shall be summoned or recognized to es in state ^^^ appear in behalf of the State in any prosecution now depending or they shall be to depend in any of the superior courts of law and courts of pleas paid. gj^j^ quarter sessions, and shall attend accordingly, shall be allowed the same pay for their daily attendance and mileage as is allowed to witnesses attending in civil suits, and such fees for attendance shall be paid by the defendant upon conviction only, and if the defendant be acquitted on any charge of an inferior nature, the court may at their discretion order the prosecutor to pay the costs, if such prosecution shall appear to have been frivolous or ma- licious ; but if the court shall be of opinion that such prosecution was not either frivolous or malicious, and a greater number of wit- nesses have been summoned by such prosecutor, than were in the opinion of such court necessary to support the charge, they may notwithstanding order the prosecutor to pay the attendance of such unnecessary witnesses, if it shall appear that they were summoned at his special instance and request. Judges of the 28. The judges of the Superior courts, in their respective courts, superior courts g^j-g f^^^ authorized and empowered to receive, hear and deter- may mitigate .J . . „ ,, ^ , ' . , or remit recog- mme on the petition of all persons, who may conceive they merit mzances, both relief on their recognizances forfeited, and to lessen or absolutely judgment. remit the same, and to do all and any thing therein, as they shall deem just and right and consistent with the welfare of the State as well as the persons praying such relief, which power shall extend to the relief of those persons, against whom final judgment hath been entered and execution awarded accordingly. Clerks to re- 29. It shall be the duty of the clerks of the several superior ^""^4^^®?^^® courts, on the remission of any forfeited recognizance, on which feiture has the money hath been collected and paid into their office, to refund been paid. gj^^j p^y ^^ck to the person entitled to the same, the full amount of money so paid into his office, or so much thereof as shall be remitted. County trustee 30. In case the clerk has paid the same to the county trustee, ^"such remitted^ ^^ ^hall be the duty of the county trustee, and he is hereby required forfeiture has to pay and refund to the person entitled the amount thereof, on to^him.^^'^ °^^^ ^^^ producing an attested copy of the record from the clerk of the court, certifying that such recognizance hath been remitted or mit- 26. 1822, C. 1133,3. 1. 27. 1800, C. 558, S. 1. 23. 1788, C. 292, s. 1. 29. 1795, C. 442, S. 1. 30. 1795, C. 442, 8. 2. Chap. XXXV.] criminal proceedings. 221 igated, signed with his own proper name, with the seal of the court affixed thereto, which certificate shall be a sufficient voucher for the trustee for the amount expressed in the certificate. 31. The several county courts of pleas and quarter sessions County courts shall have power to remit or mitigate all fines by them inflicted, j||^jfg^ y^^^^ ^^^^ and all forfeitures on recognizances previous to entering final judg- forfeitures be- ment thereon : Provided there are seven justices on the bench, f"""^ judgment. three of whom shall have been present when such fine was inflict- ed, when the remission or mitigation of a fine is prayed for : Pro- vided also, that if any person or persons shall be dissatisfied with Appeals allow- the judgment or decree of any county court, entering final judg- ment^'on'fof-' menl against him or them on forfeited recognizances, he shall be felted recogni- entitled to an appeal to the superior court of the county, under the ^^'^'^^^• same rules and regulations as other appeals, which superior court is hereby authorized to determine on the premises as in other cases in this act directed : Provided, that nothing contained in this act shall be construed to debar the county soHcitor or attorney for the State from appealing on any judgment given, whenever he shall conceive the State has been injured, but that in all such determinations, he is hereby expressly required to pray an appeal, which the said court shall grant accordingly. 32. No execution shall issue upon a forfeited recognizance or to No execution ,, /• • 1 •! • _r • 1 • 1 • 1 to issue on a collect a tine imposed, until a sarejacias has issued agamst the per- forfeited recog- son, who has forfeited his recognizance or upon whom the fine has mzance &c. been imposed, and judgment thereon. sdre facias. 33. When any clerk of the superior court of law or court ofcierks to issue pleas and quarter sessions shall have occasion or be required to y°/(^^ against issue scire facias or other process, against any person or persons, "the principal who shall have forfeited any recognizance or recognizances, entered ^^j^^g^.^^j^j''.^^^ into as principal in any one case, and who shall have given one or zance. more persons as bail or security in such recognizance or recogni- J zances, or otherwise caused such bail or securities to become bound or recognized for or in behalf of such principal, as afore- said, in any one case, as aforesaid, and such sureties shall also have forfeited such recognizance or recognizances, so entered into as aforesaid, it shall be the duty of such clerk to issue a joint scire facias, or such other joint process as may be deemed legal and necessary, against such principal including such surety or sureties, therein designating who are principals from those who are sureties, also specifying therein the respective sums orpenalties^whicheach shall have forfeited and for which they are required to answer by virtue of said process. 34. The sheriff or other officer, who may be authorized and ^P^ 5"*^.^ J , ' . ^ . •' 1 11 1 scire jacias to required to serve or execute such scire Jacias or process, shall do be executed. so, by serving a copy of such process on each of the defendants, or by leaving a copy at the place of residence of such delinquent or delinquents, or in such other manner as heretofore required by law. 31. 1788, c. 292, s. 2. 32. 1777, C. 115, S. 48. 33. 1812, c. 836, s. 1. 34. 1812, c. 836, s. 2. 222 CURRENCY. [Chap. XXXVI. Such scire 35. When the clerk or clerks aforesaid shall enter said suit on teredVs'one^'^'the record or records of their respective courts, to which said pro- suit against the cess or suit shall be returnable, he shall consolidate and enter the Eis^sureties. Same SO as to make but one suit, and on which it shall be lawful to One set of recover or otherwise receive but one set of costs, such as was costs only to be fQj.jj-jgj.jy recoverable on a sinde suit of the description aforesaid, collected except , , •^.™, ^ /. • r i i i i i when the de- the sheriff 's lees tor service or process excepted : and should any fendants plead gf ^}^g clerks or Other pe^rsons aforesaid be guilty of charging in their bill of costs or othei-wise exacting any higher or greater costs, than by law shall be due on one single suit as aforesaid, he shall be liable to a penalty of one hundred dollars, -K)- be recovered and paid to the use of the person or persons-injured : Provided, that nothing herein contained shall be construed so as to prevent any defendant in such suits from severing and pleading separately, in which case it shall be at the discretion of the court to award separate costs. 35. 1812, c. 836, s. 3. " . Note. — References to Adjudged Cases. Sect. 1. State vs. Webb, 1 Hay. 103. State vs. Irwin, ib. 112. ' Sect. 6. State vs. Cain, 1 Hawks, 352. Sect. 11. State vs. Dickens, 1 Hay. 406. Sect. 12. State vs. Jeffreys, Tayl. 216. State vs. Newmans, 2 Car. Rep. 74. Statt vs. Sparrow, N. C- Term R. 93. State vs. Cherry, 3 Murph. 7. State vs. Far- rier, 1 Hawks, 487. State vs. Moses, 2 Dev. 452. Sect. 17. State vs. Benton, 2 Dev. and Bat. Sect. 27. State vs. Stewart, 1 Car- Rep. 524. State rs. Lumbrick, ib. 543. Office vs. Gray, 2 Car. Rep. 424. ^ CHAPTER 36. CURRENCY. AN ACT CONCERNING THE CURRENCY OF THIS STATE. 1. Be it enacted by the General Assembly of the State ofJVorth Carolina, and it is hereby enacted by the authority of the same, the^'united^ That the currency of the United States shall be recognized as the States recog- lawful Currency of this State, and it shall be lawful for the records ords'^&c^U)' be and all other papers and proceedings in this State to be kept in kept in dollars dollars and cents. Provided, that nothing herein expressed shall an cents. operate to prevent any records, papers or proceedings from being kept in the former currency of this State. Chap. XXXVIL] deeds and conveyances. CHAPTER 37. DEEDS AND CONVEYANCES. 223 \',i,b.y,Cl(^^ (It'Mll^^ an act concerning deeds and conveyances of lands and slaves, mortgages and powers of attorney, their exe- cution, probate and registration. 6. 7. Section 1. Deeds to be proved or acknowledged and registered in the county where the lands lie — Deeds so registered, to pass lands without livery, &c. 2. Copy of a deed from the register's office, good evidence when the origi- nal is lost. 3. Grantees may have witnesses sum- moned to prove their deeds. 4. County court may issue a commis- sion to take probate when the wit- nesses or grantor are out of the State. 5. How deeds &c. executed out of the State, but within the United States, may be proved and registered. How proved and registered when made in foreign countries. Further provisions for the probate and registration of such deeds, &c. 8. County court may issue a commission to foreign parts to take probate. 9. How deeds executed by husband and wife shall be proved or acknow- ledged and registered — Wife to be privately examined. 10. Provision when the wife is sick or resident of another county. 11. Form of the commission to take the private examination of a fome co- vert. Conveyance under a power of attor- ney from husband and wife valid to pass lands. How deeds and powers of attorney from husband and wife, living out of this State, but in the United States, may be proved and register- ed. How when husband and wife reside in foreign parts. Powers of attorney for the sale of lands to be proved &.c. and register- ed. 12. 13. 14. 15. Section 16. Other powers of attorney, how to be proved and registered. 17. Gifts of slaves must be in writing attested and registered — Proviso as to advancements to children . 18. Deeds of gift to be proved and regis- tered. 19. All sales of slaves must be in writing attested and registered, except bona fide sales accompanied with a transfer of possession. 20. All written transfers of slaves must be registered in the county where the purchaser resides, unless the seller is to retain possession, &c. 21. All written transfers of slaves to be proved on any trial by the subscrib- ing witnesses if to be found. 22. Certain limitations of slaves by deed to be valid. 23. No mortgage or deed in trust good against creditors, unless registered within six months. 24. Mortgage or deed in trust good against creditors, &c. only from the date of the registration. 25. Clerks of the county court authorized to take probate of mortgages and deeds in trust. 26. Register to endorse on each mort- gage &c. the day he received it and to register it in the order of delivery. 27. What remedy the last mortgagee shall have when there is more than one mortgage in force at the same time. 23. Where an action is brought to recover money secured by mortgage or for the mortgaged property, the de- fendant may be discharged by bringing the money due on the mortgage into court — Proviso, where the defendant denies the right of redemption, &c. 224 DEEDS AND CONVEYANCES. [ChAP. XXXVII. Section? 29. Marriage settlements to be proved and registered. 30. What marriage settlements shall be good against creditors, &c. 31. Infant trustees how to convey lands. Section 32. Errors in the registration of deeds, &c. how to be corrected, &c. 33. Further time allowed for registering deeds, &c. Deeds to be proved or ac- knowledged and registered in the county where the lands lie. Deeds so reg- istered to pass lands without livery, &c. Copy of a deed from the regis- ter's office good evidence wlien the original is lost. Grantees may have witnesses 1. Be it enacted by the General Assembly of the State of JVorth Carolina, and it is hereby enacted by the authority of the same, That no conveyance, or bill of sale, for land, (other than mortgages,) in what manner or form soever drawn, shall be good and available in law, unless the same shall be acknowledged by the vendor or grantor, or proved by one or more evidences upon oath, either before one of the judges of the supreme court or of the superior court, or in the court of the county where the land lieth, and registered by the public register of the county, where the land lieth, within two years after the date of the said deed ; and that all deeds so done and executed shall be valid and pass estates in land or right to other estate, without livery of seizin, attornment or other ceremony in the law whatsoever. 2. The registry or copy of the record of any deed or convey- ance, registered or recorded as by this act prescribed, and attested by the register, shall and may, where the original deed or convey- ance is lost, be given in evidence in any court of record, and shall be held and is hereby declared to be full and sufficient evidence of such deed or conveyance. 3. The grantee or grantees in any deed for land, or in any deed summoned to of gift, bill of sale, or mortgage of slaves, or other personal prove their property, requiring registration, shall and may at his or their own expense, on motion to the court of pleas and quarter sessions of the county where the land lies, or where the deed of gift, bill of sale or mortgage of chattels is required to be registered, obtain a summons for any one or more of the subscribing witnesses to such conveyance, which shall be signed by the clerk and directed to the sheriff", commanding him to summon such witness to appear at the next term of said court, and give his evidence concerning the execution of such conveyance, under the penalty of forty dollars, and the sheriff" shall and is hereby required to execute the same, at least five days before the term, to which the same is returnable, and make due return thereof; and if any witness so summoned shall fail to appear, on the return of such summons, the court shall give judgment against him for the penalty aforesaid, for which execution may be taken out, either against his body or goods, by him or them at whose instance he was summoned, unless he show sufficient cause, at the next succeeding term, for not having appeared to give his evidence. 4. Whenever a deed for the conveyance of lands in this State, or of slaves, or other personal property requiring registration, has County court may issue a commission to 1. 1715, c. 7, s. 1.— 1818, c. 963, s. 2.— 1777, c. 115, S. 2. 2. 1756, c. 58, s. 3. 3. 1756, c 58, s. 4. 4. 1784, c. 203, s. 3.— 1810, c. 803, s. 2. -1756,0. 58, s. 3. Chap. XXXVII.] deeds and conveyances. 225 been or may be executed, and the subscribing witness or witnesses, take probate or grantor, are without the State, then and in that case it shall and Besses ^or^Tant- may be lawful for the court of pleas and quarter sessions of the or are out of county, in which such lands lie, or in which such deed of slaves * ^ ^^^^' or other personal property is required to be registered, to direct a dedimus to two or more commissioners in the State, where the subscribing witness or witnesses reside, or where the grantor resides, empowering them or either of them to take the acknowl- edgment or probate of such deed, and to return the same, with a certificate of such probate or acknowledgment to said court, whereon such dedimus and certificate of probate or acknowledg- ment and the deed itself shall be admitted to registration, which registration shall be good and effectual to all intents and purposes : Provided always, that in case of the death of a subscribing wit- ness or witnesses to any deed or other instrument, requiring regis- tration, satisfactory proof of the handwriting of such deceased witness, together with proof of the handwriting of the grantor, shall be sufficient for that purpose. 5. Where any conveyance of lands in this State, or power of How deeds, attorney for the conveyance of the same, or any bill of sale for ^^^^o^^^e*^'^ slaves, or power of attorney for selling the same, may have been State, but with- heretofore or shall be hereafter executed by any person or persons, states ^ay^be residing in any of the United States other than this State, or in proved and reg- any of the territories of the United States, or in the district of ^®^^'^'®*^" Columbia, and shall be personally acknowledged by the person or persons executing the same, or proved by a subscribing witness thereto, before some one of the judges of supreme jurisdiction, or before some one of the judges of the superior courts of law or circuit courts of law of superior jurisdiction within said state, territory or district, and an attestation of such acknowledgment or probate shall be endorsed or affixed to said deed, bill of sale or power of attorney by the said judge, and a certificate of the governor of said state or territory, or, where the said deed is made in the dis- trict of Columbia, a certificate of the secretary of state of the United States, shall be annexed to said deed, bill of sale or power of attorney that the judge, before whom said acknowledgment or probate was taken, was, at the time of taking the same, one of the judges of the courts of supreme jurisdiction or one of the judges of the supreme courts of law or circuit courts of law of superior jurisdiction within said state or territory, or within the district of Columbia, or where such conveyance, bill of sale or power of attor- ney shall be so acknowledged or proved before any commissioner, appointed by the governor of this State according to law, and cer- tified by him as by law required, such deed, bill of sale or power of attorney, being exhibited in the court of pleas and quarter ses- sions of the county in which such lands lie or in which the pur- chaser of such slave or slaves resides or the person empowered to sell such slaves may reside, or to one of the judges of the supreme 5. 1827, c. 18, s 1.— 1830, C. 31, s. 1. VOL. I. . 29 226 DEEDS AND CONVEYANCES. [ChAP. XXXVII. How proved and registered when made in foreign coun- tries. Further pro- visions for the probate and registration of such deeds, &c. County court may issue a commission to foreign parts to take probate. court or of the superior courts of this State, shall be ordered to be registered with the certificates thereto annexed, and such deeds, bills of sale or power of attorney with the certificates thereto annexed having been registered, pursuant to such order, in the county, in which such lands lie, or in which the purchaser of such slave or slaves may reside, shall be valid in law to convey, or to empower to convey, all the estate and title which such person or persons may or shall have in any such lands or slaves thereby con- veyed or authorized to be conveyed, and shall be received in evi- dence in any court of law or equity within this State without further proof thereof. 6. All deeds and conveyances of land, lying within this State, and all powers of attorney to convey such land, made in foreign parts or in parts beyond the hmits of the United States, which shall be re- mitted hither and proved as prescribed in the first section of this act, or which shall be personally acknowledged or proved before the chief magistrate of any city, town or corporation in the cotmtry, in which such deed or conveyance or power of attorney was exe- cuted, and an attestation thereof affixed thereto, shall, upon being exhibited to the court of pleas and quarter sessions of the county in which the land lies, or to one of the judges of the supreme or superior courts of this State, be ordered to be registered and shall be registered in the same manner as if such deed or conveyance or power of attorney had been proved as prescribed in the first section of this act, and when so registered shall be good and vahd in law to all intents and purposes, and shall be received in evidence without further proof. 7. Whenever a deed for the conveyance of lands, or negroes or other property, or a letter of attorney for the conveyance there- of, which deed or letter of attorney is by law authorized to be registered, shall be proved or acknowledged in foreign parts before any ambassador, public minister, consul or commercial agent of the United States, and a certificate of such ambassador, public minister, consul or commercial agent shall be thereunto annexed under his official seal, declaring such probate or acknowledgment, or when any feme covert, party to such deed or letter of attorney, shall be privately examined before such ambassador, public minis- ter, consul or commercial agent and a certificate of such examina- tion shall be annexed as aforesaid, such probate, 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 said court to be registered, together with the said deed or letter of attorney, and the instrument so reg- istered shall have the same validity as if the probate, acknowledg- ment and examination had been had in open court. 8. Whenever it shall be suggested to the court of pleas and quarter sessions of any county, that a deed for the conveyance of land or other property in such county has been made in foreign 6. 1715, c. 7, s. 3.— ISIO, c. 791, s 2 and 3. 7. 1835, c 13, s. 2. 8. 1835, c. 13, s. 3. Chap. XXXVII.] deeds and conveyances. 227 parts, it shall be lawful for such court to issue a commission, re- turnable at some subsequent term thereof, to a commissioner or commissioners, authorizing him or them or any number of them the court may designate, to take the acknowledgment of the party or parties thereto or the examination of any of the subscribing witnesses thereto, and if any of the parties shall be a feme covert^ to take also the private examination of such feme covert., and the pro- ceedings of the said commissioner or commissioners, so authorized, being returned, the court may proceed to adjudge that said deed ■ or letter of attorney is duly acknowledged or proved and the said examination is in due form ; and upon such adjudication, the deed or letter of attorney with the proceedings so had shall be registered, and the same, so registered, shall have the same effect as though all the said proceedings had been had in open court. 9. All conveyances in writing and sealed by husband and wife How deeds ex- for any lands, and by them personally acknowledged before one of ^and^anJ wife' the judges of the supreme or superior courts, or in the court of shall be proved the county where the land lieth, the wife being first privily exam- "dged and re 23 1789, C. 312. into court. Chap. XXXVIL] deeds and conveyances. 233 equity upon such mortgage, such money for principal, interest and costs to be ascertained and computed by the court, where such action is or shall be depending, or by the proper officer by such court to be appointed for that purpose, the moneys so paid to such mortgagee or mortgagees, or brought into such court, shall be deemed and taken to be in full satisfaction and discharge of such mortgage ; and the court shall and may discharge every such mort- gagor or defendant of and from the same accordingly, and shall and may, by rule or rules of the same court, compel such mort- gagee or mortgagees, at the costs and charges of such mortgagor or mortgagors, to assign, surrender or reconvey such mortgaged lands, tenements and hereditaments, and such estate and interest as such mortgagee or mortgagees have or hath therein, and dehver up all deeds, evidences and writings in his, her or their custody, relating to the title of such mortgaged lands, tenements and heredi- taments, unto such mortgagor or mortgagors, who shall have paid or brought such moneys into court, his, her or their heirs, execu- tors or administrators, or to such other person or persons as he, she or they shall for that purpose nominate or appoint. Provided Proviso where always^ that any thing herein contained shall not extend to any case, denies the right where the person or persons, against whom the redemption is or of redemption, shall be prayed, shall by writing under his, her or their hands, or the hands of his, her or their attorney, agent or solicitor, to be dehvered, before the money shall be brought into such court at law, to the attorney or solicitor for the other side, insist, either that the party praying a redemption has not a right to redeem, or that the premises are chargeable with other or different principal sums, than what appear on the face of the mortgage, or shall be admitted on the other side, nor to any case, where the right of redemption to the mortgaged lands and premises in question in any case or suit shall be controverted or questioned by or between different defendants in the same cause or suit, nor shall be any prejudice to any subsequent mortgagee or mortgagees or subse- quent incumbrancer. 29. All marriage settlements and other marriage contracts. Marriage set- whereby any money or other estate shall be secured to the wife m^^^ and reg- or husband, shall be proved, in the same manner as other deeds, istered. within six months after the making thereof, and registered w^ithin one month thereafter, and all marriage settlements and other mar- riage contracts, not proved and registered according to the directions of this act, shall be void against creditors. 30. No marriage settlement, or other marriage contract, shall ^^^^ marriage be good against creditors, where a greater value is secured to the shall be good intended wife and children of the marriage, or either of them, than against credi- the portion actually received with the wife in marriage and such ' estate as the husband at the time of his marriage shall be possessed of, after deducting the just debts by him then due and owing, and in case of any suit upon any such marriage contract, where any creditor or creditors shall be a party, the burden of the proof shall 29. 1785, c. 238, s. 1. ifV/ 30. irse, C. 238, S. 2. VOL. I. 30 234 DEEDS AND CONVEYANCES. [ChAP. XXXVII. lie upon the person or persons claiming under such marriage con- ' tract : Provided always, that if any legacy or legacies shall be given to the wife in general words, and not in trust, or a distribu- tive share or shares of any intestate's estate shall fall to her during her coverture, such legacies and distributive shares (in case the estate of the husband and wife shall not at the time of the marriage be of sufficient value to make good the marriage contract) shall be held, deemed and taken as part of the portion received with the wife, and shall be secured to those claiming under such marriage contract. Infant trustees 31. It shall and may be lawful for any person under the age of lands^° ^""^^^^ twentyone years, having estates in lands, tenements or heredita- ments, only in trust for others, or by way of mortgage, by the direction of the court of equity of the county, in which such lands, tenements or hereditaments are situate, signified by an order made upon hearing all parties concerned, on the petition of the person or persons for whom such infant or infants shall be seized or possessed in trust, or of the mortgagor or mortgagors, or guardian or guardians of such infant or infants, or person or persons entitled to the moneys, secured by or upon any lands, tenements or hereditaments, whereof any infant or infants are or shall be seized or possessed by way of mortgage, or of the person or persons entitled to the redemption thereof, to convey and assure any such lands, tenements or hereditaments, in such manner as the said court of equity shall, by such order so to be obtained, direct, to any other person or persons ; and such conveyance or assurance, so to be had and made as aforesaid, shall be as good and effectual in law to all intents and purposes whatsoever, as if the said infant or infants were, at the time of making such con- veyance or assurance, of the full age of one and twenty years ; and all and every such infant or infants, being only trustee or trustees, mortgagee or mortgagees as aforesaid, shall and may be compelled by such order, so as aforesaid to be obtained, to make such conveyance or conveyances, assurance or assurances as aforesaid, in like manner as trustees or mortgagees of full age are compellable to convey or assign their trust estates or mortgages. Errors in the 32. Every person who discovers that there is an error in the registr^ion^of^ j-ggigt^atJon Qf ^jg grant, mesne conveyance, bill of sale or other to be corrected, instrument of writing, shall be at liberty to prefer a petition to the ^- county court, in the same manner as is directed for petitioners to correct errors in grants or patents, and, on hearing the same, if it appears to the satisfaction of the court that errors have been com- mitted, they are hereby directed and required to order the register of the county to correct such errors, and make the records by him kept conformable to the grant, mesne conveyance, bill of sale or other instrument of writing, in which it appears such mistake has been so made : Provided, that a majority of the acting justices of said court shall be present on the hearing of said petition, and that 31. 1821, c. 1116, 8. I and 2. 32. 1790, c. 326, s. 2, 3 and 4. Chap. XXXVII.] deeds and conveyances. 235 such petitioner shall prove to the said court that he has notified every person having lands adjoining those mentioned in the peti- tion, thirty days previous to preferring the same, and that he has notified every person who claims title to the land described in his petition : And provided also, that any person who may be dissatis- fied with the judgment of the county court on such petition, shall be at liberty to appeal to the superior court of the county, as in other cases, and no such petition shall be set for hearing at the first term : Provif/ec? /itrf/ier, that in all such cases the same notice shall be given by the petitioner to the grantor in such deed, mesne conveyance, bill of sale or other instrument of writing, and the clerk shall receive fifty cents for his services on each petition and no more. 33. All grants of land in this State, all deeds of mesne convey- Further time ance, powers of attorney, under which any lands, tenements or regirterinff' hereditaments have been or may be conveyed, all other powers of deeds, &c. attorney which are required to be proved and registered by any act of the General Assembly, all bills of sale, deeds of gift already proved, or which may hereafter be proved, shall and may, within three years after the passage of this act, be admitted to registration, under the same rules, regulations and restrictions as heretofore ap- pointed by law, and said grants, deeds, mesne conveyances, powers of attorney, bills of sale and deeds of gift, shall be as good and valid as if they had been proved and registered within the time heretofore allowed : Provided, that nothing herein contained shall be construed to extend to mortgages or to conveyances in trust, 33. 1835, c. 9. Note. — References to Adjudged Cases. Sect. 8. Lucas vs. Cobbs, 1 Dev. and Bat. 228. Sect. 9. Harrel rs. Elliot, Tayl. 139. Hunter jjs. Bryan, 2 Murph. 178. Robeson vs. Barfield, ib. 390. Burgess vs. Wilson, 2 Dev. 306. Barfield vs. Combs, 4 Dev. 514, Fenner vs. Jasper. 1 Dev. and Bat. 34. Sect. 10. Sutton vs. Sutton, 1 Dev. and Bat. 582. Sect. 17. Ball vs. Brooks, 3 Murph. 133. Smith vs. Yates, 1 Dev. 302. Palmer vs. Faucet, 2 Dev. 240. Jones vs. Sasser, 3 Dev. 378. Stallings vs. Stallings, 1 Dev. Eq. 298. Vines vs. Brownrigg, 4 Dev. 265. Andrev^'s vs. Shaw, ib. 270. Harris vs. Yar- borough. ib. 166. Jones vs. Loper, 1 Dev. and Bat. 452. Bennet vs. Flowrers, ib. 467. Hamlin vs. Alston, ib. 479. Alston vs. Hamlin, 2 Dev. and Bat. Thompson vs. Todd, ib. ^ Sect. 19. Knight rs. Thomas, 1 Hay. 289. Hancock w. Hovey, Tayl. 104. Cutler «s. Speller, 2 Hay, 61. Latham ?)s. Outen, ib. 66. Bateman t's. Rateman, 2 Murph. 97. Gotten BS. Powell, 2 Car. Rep. 431. McRea ys. Houston, 3 Murph. 429. Rhodes us. Holmes, 2 Hawks, 193. Mushat vs. Brevard, 4 Dev. 73. Belljjs. Culpeper, 2 Dev. and Bat. Sect. 20. Palmer vs. Popleston, 1 Hawks, 307. Carleton vs. Bloodwoth, 1 Murph. 424. Sect. 23. Moore vs. Collins, 3 Dev. 126. Smith vs. Washington, 1 Dev. Eq. 318. Moore vs. Collins, 4 Dev. 384. Walton vs. Stallings, 4 Dev. 56. Gregory vs. Perkins, ib. 50. Sect. 24. McKinnon vs. McLean, 2 Dev. and Bat. Sect. 27. Pike vs. Armstead, 1 Dev. Eq. 110. Sect. 28. Devereux vs. Marsorotti, 3 Hawks, 338. Sect. 32. Jones vs. Physioc, 1 Dev. and Bat. 173. 2m DESCENTS. [Chap. XXXVIII. CHAPTER 38. DESCENTS AN ACT TO REGULATE DESCENTS. Section 1. Rules of descent. Rule 1. Lineal descent. Rule 2. Females to inherit equally with males, and younger with older children — Proviso as to a child advanced. Rule 3. Lineal descendants to rep- resent their ancestors. Rule 4 Collateral descent where the inheritance has been transmitted from an ancestor. Rule 5. Collateral descent when the inheritance has not been transmitted from an ancestor. Rule 6. Collateral relations of the Section half blood to inherit equally with those of the whole blood — Proviso, where a parent shall take. Rule 7. No person to take unless he be born at the death of the person last seized or within ten months af- terwards. Rule 8. In what case the widow shall take as heir. Rule 9. Alien heirs not to prevent other relations, being citizens, from inheriting. Rule 10. Illegitimate children may inherit from their mother and from each other. Rules of de- scent. Lineal descent Females to in- herit equally with males, and younger with older children. Proviso as to a child advanced. Lineal de- scendants to represent their ancestor. 1. Be it enacted by the General Assembly of the State of J^orth Carolina, and it is hereby enacted by the authority of the same, That the following rules be and hereby are established for regulat- ing the descent of inheritances. Rule 1. Inheritances shall lineally descend to the issue of the person, who died last actually or legally seized, forever, but shall not lineally ascend, except as is hereafter provided for. Rule 2. Females shall inherit equally with males, and younger equally with older children : Provided, that no child, who shall have lands settled on him or her by his or her deceased parent in fee simple, equal to the share, which shall descend to the other children, shall be entitled to claim any further share of the real estate of such parent by descent, and in case any child shall have lands settled on him or her by his or her deceased parent, not equal to the share which shall descend to such other children, then so much of the lands or other real estate of the deceased shall descend to such child, so provided for, as will make the estates of all the children entitled to the inheritance as nearly equal as can be estimated, and each and every of the children so inheriting shall hold and enjoy in the land so descending such estate as the said deceased had and held in the same at the time of his decease. Rule 3. The lineal descendants of any person deceased shall represent their ancestor and stand in the same place as the person himself would have done had he been living. Rule 1. 1808, c. 739. 2. 1808, c. 739.-1734, c. 204, S. 2. 3. 1808, c. 739. Chap. XXXVIIL] descents. 237 Rule 4. On failure of lineal descendants, and where the inher- Collateral de- itance has been transmitted by descent from an ancestor or has thelnheritence been derived by gift, devise or settlement from an ancestor, to has been whom the person thus advanced would, in the event of suchances-fjpj^'^^^^jjpgg. tor's death, have been the heir or one of the heirs, the inheritance tor. shall descend to the next collateral relations of the person last seized, who were of the blood of such ancestor, subject to the two preceding rules. RvLE 5. On failure of lineal descendants, and where the inher- Collateral de- itance has not been transmitted by descent or derived as aforesaid ?^^"Jj^^^g®*^^ from an ancestor, or where, if so transmitted or derived, the has not been blood of such ancestor is extinct, the inheritance shall descend to f!?^!!fT^"^^^^ ' , irom an ances- the next collateral relations of the person last seized, whether of tor. the paternal or maternal line, subject to the second and third rules. Rule 6. Collateral relations of the half blood shall inherit Collateral re- equally with those of the whole blood, and the degrees of relation- i,^aif"hlo°oyto ship shall be computed according to the rules which prevail inherit equally in descents at common law : Provided always, that in all cases Jp,e^J^|'°ig^ where the person last .seized shall have left no issue, nor brother, nor blood, sister, nor the issue of such, the inheritance shall vest, for li^^ a parent Thalf only, in the parents of the intestate or in either of them, if one take. only be living, and, on the death of one of the parents, then in the survivor, and afterwards be transmitted according to the preceding rules. Rule 7. No inheritance shall descend to any person, as heir of n-q person to the person last seized, unless such person shall be in life at the ^^^^ unless he J. ' jL nf novn {It Trip death of the person last seized, or shall be born within ten months death of the after the death of the person last seized. person last ^ S61Z6CI or Wltll- Rules. Where any person shall die seized of real estate of in ten months inheritance in this State, leaving no person who can claim as heir afterwards. to him, but leaving a widow, the widow in such case shall be taken the wldow^^^ and held to be the heir to her husband and inherit his estate as such, shall take as Rule 9. Where any person shall die seized of real estate of ^'^!'^' . inheritance in this State, leaving descendants or other relations cit- to prevent other izens of the United States, who would according to law inherit, relations being were all other nearer descendants or relations extinct, but who, inheriting, according to the now existing laws, cannot inherit because there may be others, who if citizens would be entitled to inherit, but being aliens cannot hold lands in this State, whereby such estate would escheat, in such case the nearest descendant or relation of the deceased, being a citizen of the United States, shall inherit. Rule 10. Where any woman shall die intestate, leaving child- ^JJ^I^^.^™^^ ren, commonly called illegitimate or natural, born out of wedlock, inherit from and no children born in lawful wedlock, all the real estate, whereof ^'j^^'^f™|^**^'^J"^jj she shall die seized, shall descend to and be equally divided among other. such illegitimate or natural born children and their representatives. Rule 4. 1308, c. 739. 5. 1808, c. 739. 6. 1808, c. 739. 7. 1823, c. 1210. 8. 1801, c. 575, s. 1. 9. 1801, c. 575, s. 2. 10. 1799, c. 522. 238 DIVORCE AND ALIMONY. [ChAP. XXXIX. in the same manner as if they had been born in wedlock ; and if any such illegitimate or natural born child shall die intestate, with- out leaving any child or children, his or her real estate shall des- cend to and be equally divided among his or her brothers and sis- ters, born of the body of the same mother, and their representa- tives, in the same manner and under the same regulations restrictions as if they had been born in lawful wedlock. and Note. — References to Adjudged Cases. Toomer rs. Tooraer, 2 Hay. 368 and 375, S. C. 1 Murph. 96. Jones i5s. Spaight, 2 Murph. 89. Wilson vs. Hightower, 3 Hawks, 76. Bell vs. Dosier, 1 Dev. 333. Flint- ham vs. Holder, 1 Dev. Eq. 345. CHAPTER 39. DIVORCE Al^D AL.IMONY. ■/ ''-'"'■^-^■il jff^z-i (^ <^ AN ACT CONCERNING DIVORCE AND ALIMONY. Section 1. Courts of law and equity to have jurisdiction of divorce and alimony. 2. Cases in which divorce or alimony may be granted. 3. Other cases in which divorce from bed and board, alimony or separate maintenance may be granted. 4. Alimony may be granted when the husband is a spendthrift, &c. 5. Proceedings to obtain divorce and alimony. 6. Cause of complaint must have exist- ed six months, and petitioner must have resided in the State three years — Proviso . 7. Rules as to depositions and costs. 8. What shall be a bar to a suit for di- vorce for the cause of adultery. 9. What decree the court may make — Innocent party may marry again — 10 11. Section No decree to render the children illegitimate. Proceedings against the husband when alimony is allowed. In case of divorce from bed and board, the wife shaU have aU the property she may thereafter ac- quire, and may sue and be sued alone. The superior courts of law may, oa petition of a married woman, de- cree that the property she after- wards acquires may be secured to her, and that she may sue and be sued as ayeme sole. 1 3. Appeal allowed to the supreme court. 14. Party against whom there is a de- cree of divorce, not permitted to many again. 12. 1. Be it enacted by the General Assembly of the State ofJ\*orth Carolina, and it is hereby enacted by the authority of the same, Courts of law That the superior courts of law and the superior courts of equity T^ XriJdic ^^^^^ ^^^^^ ^°^® ^"^ original jurisdiction in all cases of application tion of divorce and alimony. i_ 1327 c. 19, s. 1.— 1828, c 44, s, 1.— 1834, c. 15. Chap. XXXIX.] divorce and alimony. 239 for divorce, and shall also have jurisdiction of applications for alimony. 2. When a marriage hath been heretofore or shall be hereafter Cases in which contracted and celebrated between any two persons, and it shall ^^°y°^°y^g' be adjudged in the manner hereinafter mentioned that either party, granted. at the time of the contract, was and still is naturally impotent, or that either party has separated him or herself from the other and is living in adultery, or that any other just cause for a divorce exists, in every such case it shall and may be lawful for the injured per- son to obtain a divorce, either from bed and board or from the bonds of matrimony, at the discretion of the court, or a decree for alimony only, if no more is demanded, to continue as long as the justice of the case may require. 3. If any person shall either abandon his family, or maliciously Other cases m •'X •' •' • ■which QivorcG turn his wife out of doors, or by cruel or barbarous treatment from bed and endanger her life, or offer such indignities to her person as to ren- !'oa,rd and al- der her condition intolerable or life burthensome, it shall and may arate main- be lawful for the superior court of law or court of equity to grant tenance may be a divorce from bed and board, and also to allow her such alimony as her husband's circumstances will admit, not exceeding one third part of the annual income or profits of his estate, or of his occu- pation or labors, or by assigning to her separate use such part of the real and personal estate of the husband as the court shall think fit, not exceeding one third part of the husband's estate, as the jus- tice of the case may require, which shall continue until a recon- ciliation shall take place between the parties : Provided alivays^ that nothing herein contained shall be construed in any wise to affect the rights of any creditor or creditors of the husband. 4. When a man shall become an habitual drunkard or spend- thrift, wasting his substance to the impoverishment of his family, Ahmony may in every such case it shall be lawful for his wife to claim and for when the hus- , the court to decree an alimony as aforesaid : Provided, that nothing ^^"^'^jll^f. herein contained shall exempt any property, which he may then &c. ' possess, from the payment of just claims against him up to the period when alimony shall be granted. 5. The husband or wife claiming to be divorced, or the wife Proceedings to claiming ahmony, may exhibit his or her petition or hbel to one of°^^'^,^"'^^^°'''^*^ ,.1° ^,-"*'. I.. r .... or ahmony. the judges oi the superior courts oi law or courts of equity in this State in term time, or to one of the judges in the vacation, at least thirty days before the next term, setting forth therein particularly and especially the causes of his or her complaint, and shall together with such petition or libel exhibit an affidavit on oath, taken before one of the judges of the superior courts or some justice living in the county where he or she resides, that the facts contained in such petition or hbel are true to the best of his or her knowledge and belief, and that the said complaint is not made out of levity or by collusion between the said husband and wife, and, if for divorce, 2. 1814, c. 869, s. 1.— 1827, c. 19, s. 1.— 1828, c. 44, s. 2. 3. 1814, c. 869, s. S. 4. 1528, C. 44, S. 3. 5. 1814, c. S69, S. 2.-^1824, C. 124S, S. 3. 240 DIVORCE AND ALIMONY. [ChAP. XXXIX. not for the mere purpose of being freed and separated from each other, but in sincerity and truth for the causes mentioned in the said petition or Ubel ; bond with sufficient security for the prose- cution of the same being first given as required in other cases at law or equity ; and thereupon a subpoena may and shall issue from the said court, directed to the person so complained against, com- manding him or her to appear at the next superior court of law or court of equity, to be held for the said county, then and there to plead or answer to the said petition or libel, and upon due proof at the return of the said process that a copy thereof was served, either personally on the said party, or that he or she could not be found and that a copy thereof was left at his or her last place of abode in said county, at least ten days before the day of the said return inclusive, if he or she shall refuse or neglect to appear, then an alias subpoena shall issue, returnable to the first day of the next term, and be served personally in manner aforesaid ; but if he or she cannot be found, then proclamation shall be publicly made by the sheriff at the door of the court house for the party to appear and answer as commanded by the subpoena, and notice thereof shall be given in two newspapers, such as the court may order, for three months, and in the mean time the said court shall and may make such preparatory rules and orders in the cause as may be necessary to prepare the same for trial, when the court may determine ex parte if necessary : Provided always^ that, in all suits commenced under this act, the material facts charged in the said petition or libel shall be submitted to a jury, upon whose verdict, and not otherwise, the court shall decree, any rule or practice to the contrary notwithstanding : Provided also, that if the party, so exhibiting his or her petition, shall make oath at the time of filing the same that he or she is not worth the sum of two hundred dol- lars, bond for the payment of the costs of the suit shall not be required from such party. Cause of com- 6. No petition shall be sustained under this act, unless the Eav^e existed petitioner shall state and swear, that the facts, the ground of his or six months and her complaint, have existed to his or her knowledge at least six Eave^resided"iii ^o"*^^^ prior to the filing of the petition, nor shall any person be the State three entitled to sue under this act, unless he or she shall have resided years. within this State three years immediately preceding the exhibition Proviso. of his or her petition : Provided, that the three years' residence required in this section shall not apply to cases brought under the fourth section of this act. Rules as to de- 7. The parties m^ay take testimony by depositions, under the costs^.°°^ ^" same rules, regulations and restrictions as exist in suits of equity in this State, and the court may award costs to the party in whose behalf the sentence or decree shall pass, or that each party shall pay his or her own costs, as to the court shall appear reasonable. What shall be 8. In any suit for a divorce for the cause of adultery, if it shall for divorce7or ^e proved that the plaintiff has been guilty of the like crime, or the cause of adultery. g 13^4^ g. ggg, 5. e and 7. 7. 1814, c. 869, s. 8 and 10. 8. 1814, c. 869, s. 3. Chap. XXXIX.] divorce and alimony. 241 has admitted the defendant hito conjugal society or embraces, after he or she knew of the criminal fact, or that the said plaintiff (if the husband) allowed of his wife's prostitution, or exposed her to lewd company, whereby she became ensnared to the crime afore- said, it shall be a good defence and a perpetual bar against the said suit. 9. It shall and may be lawful for the courts aforesaid, after What decree hearing any cause commenced in virtue of this act, to determine make°"'^^ ^^^ the same as to law and justice shall appertain, by either dismissing the petition or libel, or sentencing and decreeing a divorce and separation from bed and board or from the bonds of matrimony, or tliat the marriage is null and void, or that the wife shall have alimony agreeably to the prayer thereof ; and such court shall have power to decree alimony to the wife in the case of general divorce upon the petition of the wife ; and after a sentence nulli- fying or dissolving the marriage, all and every the duties, rights and claims of the parties, in right of said marriage, shall cease and j^jj^^j^gj^^ ^ determine, and the complainant or innocent person shall be at may marry liberty to marry again as if he or she had never been married : '^^^'^• Provided always, that nothing herein contained shall be construed No decree to to extend to affect or render illegitimate any child or children born children iUe- of the body of the wife during the coverture. gitimate. 10. The husband, against whom alimony or separate mainte- Proceedings nance may be decreed, shall give good and sufficient security in husband when open court, to be approved by the court, for the faithful perform- alimony is al- ance of the same, 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, as in cases at law, for the money thus decreed and a writ of venire to the jury to lay off and allot the real or personal estate decreed to the wife. 1 1 . When the court shall decree a divorce from bed and board, i" <=^*^ °^ ^^' the wife so divorced shall have capacity to acquire, retain and dis- bed and board, pose of all such property as may thereafter be procured by her '^^ ^^^^ ^^^^^ own industry or may accrue to her by descent, devise, gift, be- property she quest, or in any other manner, and the said property shall not be may thereafter liable to the power, dominion, control, or debts of her husband, may sue and ba but, on her death, without a disposition by her, shall be transmissi- ^^^^ ^^°'^^- ble in the same manner as though she were unmarried ; and the wife may sue and be sued without joining her husband, and may claim redress for and be made liable upon contracts and injuries thereafter made and done, as though she were a feme sole. 12. When any married woman shall file her petition in any of The superior the superior courts of law of this State, praying that alimony may may^ ot pe'ti^' be decreed to her and that such property as she may thereafter ac- tion of a mar- quire may be also secured to her, the judges of the said courts decreT°that"the may, if they think proper, decree that the petitioner may sue and property she be sued in her own name, without joining the name of her husband, 'JJ;quire may be 9. 1S14, c. 869, s. 4. 10. 1814, c. 869, s. 11. 11. 1810, c. 1007. 12. 1S28, c, 44, s. 4.— 1829, c. 28. VOL. I. 31 242 DRAINING LOW LANDS. [ChAP. XL. secured to her, in any court of record or before any justice of the peace in this may^sue and be State, and that all such property as may thereafter be procured by her sued as a/emeown industry or may accrue to her by descent, devise, gift, bequest or in any other manner shall be secured to her and 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 in the same manner as though she were unmarried and in the same manner as if the petitioner was a feme sole. Appeal allowed 13. Jn every case of an appHcation for a divorce or for ahmony court? ^"^"^^"^^ and a final judgment thereon by the superior court of law or court of equity, it shall be lawful for the party, against whom such judg- ment is rendered, to appeal therefrom to the supreme court, whose duty it shall be, according to the facts ascertained in the superior court, to make such decree thereon as shall be just, and when an appeal shall be prayed from the judgment of the superior court of law or court of equity, it shall be lawful to grant such appeal with- out bond or security, if the situation of the party appellant shall render it necessary for the purposes of justice, that an appeal should be thus prosecuted. Party against 14. No defendant or party offending, who shall be divorced ^decree oFdi-^''^"^ ^^^ bonds of matrimony, under the provisions of any act of vorce, not per- the General Assembly of this State, shall ever be permitted to ^ggj^'^ ^° "^^^^"^' marry again, and if he or she shall offend against the true intent and meaning of this act, he or she shall be subject to all the pains and penalties which are inflicted by law upon persons guilty of bigamy. 13. 1827,0. 19, s. 3 and 4, 14. 1S27. c. 19, s. 5. Note. — References to Adjudged Cases. Sect. 2. Scroggins vs. Scroggins, 3 Dev., 535. Harden vs. Harden, ib., 548. Collier vs. Collier, 1 Dev. Eq. 352. Whittington vs. Whittington. 2 Dev. and Bat. Sect. 3. Longrs. Long, 2 Hawks, 189. CHAPTER 40. DRAINING liO^V I.ANDS AN ACT CONCERNING THE DRAINING OF LOW^ LANDS. Section 1. Mode of proceeding by those desi- rous of draining their lands — Court to appoint twelve jurors — Their duty— On payment of damages, title of land to vest. Section 2. Jury to make a return of their pro- ceedings to court — Their compen- sation — Proviso. Chap. XL.] draining low lanes. 243 1. Be it enacted by the General Assembly of the State of J^orth Carolina, and it is hereby enacted by the authority of the same, That any person or persons^ owning pocoson or flat lands, and ^i^^^ ^f p^o. being desirous to drain the same, but being prev^ented by the propri- ceedin| by etor or proprietors of lands adjoining him or them, it shall be lawful of*^draining"^* for such person or persons, who are desirous to drain their said their lands. pocoson or flat lands, to prefer a petition to the court of the county, wherein the said lands may be situated, setting forth the particular circumstances of his or her case, situation of the lands, and to what stream or water course he or she would wish to drain the same, whereupon the court shall appoint twelve freeholders in the said Court to ap- county, not attached to either party by consanguinity or affinity, mrors.^ Tbeir who shall go upon the premises and examine the ground so peti- duty. tioned to be drained, and that through which the canal or ditch shall pass, and also whether such canal or ditch shall appear neces- sary, and further they shall direct the ditch to be cut in such man- ner and extent, as in their opinion wdll most effectually secure the lands, through which it passes, as well as that where it terminates, from inundation ; and the jury aforesaid, shall, upon oath, value and assess what damages the proprietor or proprietors of the land, through which such drain is to be cut, will sustain ; and, where the same shall appear necessary, the damage shall be paid before the petitioner or petitioners proceed to cut a ditch or ditches through or into such proprietor or proprietors' lands, and w^hen the peti- tioner or petitioners aforesaid shall have so paid to the proprietor On payment of or proprietors of such lands, as aforesaid, the damages or injury ^^'^^^j' ";^^^ the jury might judge he or they sustained, he or they, their heirs or assigns, so paying, shall thereafter be vested with a good and sufficient title in fee for the lands so petitioned for. 2. In all cases where a jury is appointed for the purposes afore- J^y to make a said, it shall be their duty to make a fair return of their whole pro- p^^edino's^o ceedings to the next succeeding county court, which shall be record- court. TBeir ed in the said courts respectively ; and each of the jury appointed '^"^^^"^^ ^°"" as aforesaid shall be entitled to the sum of eighty cents, for each day that they may necessarily be employed in laying off" said ground, which sum shall be paid to each juryman by the petitioner or petitioners : Provided, nevertheless, that nothing in this act shall be construed so as to authorize the running of any ditch or canal '^^^^°^- through the yard or curtilage of any proprietor, without the con- sent of such proprietor. Jlnd provided also, that no such drain or ditch shall be cut, so as to injure any pond or ponds belonging to any mill or mills, which now are or hereafter may be estabhshed by law, or to prevent the proprietor or proprietors, through whose lands the said ditch or canal may pass, from putting a fence or bridge across the same : Provided, such bridge or fence shall not obstruct the free passage of the water down said canal or ditch. 1. 1795, c. 436, s. 1. 2. 1795, c. 436, s. 2—1835, c 7. tCyll D ILS 244 ELECTORS OF PRESIDENT, ETC. [ChAP. XLI. ,^,, ,. ^j ,, V/ CHAPTER 41. ELECTORS OF PRESIDENT AND TICE PRESIDENT. AN ACT PROVIDING FOR THE APPOINTMENT OP ELECTORS TO VOTE FOR PRESIDENT AND VICE PRESIDENT OF THE UNITED STATES. Section 1 . State divided into fifteen districts for choosing electors to vote for presi- dent and vice president of the Uni- ted States — Time and manner of holding the elections for electors — Certificate and return, by whom to be made — Penalty in case of failure to make returns. 2. Election of electoi-s to be held every four years. 3. When and where the electors shall meet to give their votes. State divided into fifteen dis- tricts for choosing elec- tors to vote for president and vice president of the United States. Section 4. The governor shall issue Ms procla- mation for an election in case of a vacancy in both the offices of presi- dent and vice president. 5. Penalty on electors for failing to at- tend — On sherifis for refusing to take the poll or making false re- turns, &c. 6. Compensation of electors — Of sher- iifs for holding elections, &c. 7. Electors may supply vacancies in their body. 1. Be i^ enacted by the General Assembly of the State of J^orth Carolina, and it is hereby enacted by the authority of the same, That this State shall be divided into fifteen districts, for the pur- pose of choosing electors for a president and vice president of the United States, in the following manner, to w^it : The counties of Burke, Buncombe, Rutherford, Haywood, Macon and Yancey shall compose one district : The counties of Wilkes, Iredell, Surry and Ashe shall compose one district : The counties of Mecklenburg, Cabarrus and Lincoln shall compose one district : The counties of Rowan, Davidson, Davie and Montgomery shall compose one district : The counties of Rockingham, Stokes and Caswell shall compose one district : The counties of Randolph, Guilford and Chatham shall compose one district : The counties of Richmond, Anson, Robeson, Moore and Cumberland shall compose one district : The counties of Person, Orange and Gran- ville shall compose one district : The counties of Wake, John- ston and Wayne shall compose one district : The counties of Warren, Franklin, Halifax and Nash shall compose one district : The counties of Bertie, Northampton, Hertford and Martin shall compose one district : The counties of Pasquotank, Gates, Chow- an, Perquimons, Camden and Currituck shall compose one dis- trict : The counties of Beaufort, Edgcombe, Pitt, Washington, Tyrrel and Hyde shall compose one district: The counties of Craven, Greene, Lenoir, Jones, Carteret and Onslow shall com- 1. 1813, e. S'86. s. 1. Chap. XLL] electors of president, etc. 245 pose one district : The counties of Bladen, Sampson, Columbus, Duplin, New Hanover and Brunswick, shall compose one district : which said districts shall be denominated electoral districts ; that the persons qualified to vote for members of the house of com- mons of the General Assembly of this State, in said counties re- spectively, shall meet on the second Thursday of November, one thousand eight hundred and forty, at the place or places by law J^^^f^^^j^j^"' established in their several counties for the election of members the elections of the General Assembly, and there give their votes by ballot for ^°'^ electors. fifteen discreet persons, being freeholders, one of whom shall actu- ally reside within each of the electoral districts as herein before laid off ; that 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 in case any ticket should contain two or more names of per- sons residing in the same electoral district, that one of such per- sons only, whose name shall be first on said ticket, shall be taken and held as the person duly voted for. And in like manner if two or more of the persons shall be of the fifteen first upon the poll, who shall reside in the same district, he who shall have the greatest number of votes shall be taken and held duly elected ; and the sheriffs of the several counties, or other officers duly authorized, who shah have held the said pohs, shall, widiin two days after the day of holding the said polls, ascertain, by faithful addition and comparison of the number of votes for every person, who shall have been voted for as an elector, and shall certify in words, and not in figures, under their hands, in manner and form following, to wit : I, A. B., sheriff of county (or deputy sheriff, Certificate and or other officer duly authorized as the case maybe) do hereby return — by certify that an election was held on the day (or days, as the case made, may be) and at the place (or places, as the case may be) fixed by law within the said county for this purpose, and that the number of votes herein specified, opposite the names of the several persons foUowing, was given by voters qualified to vote for this purpose, for such persons as electors for the State of North Carohna of president and vice president of the United States : namely. For D. C. (here state the number of voters given for D. C.) for E. F. (here state the number of voters given for E. F.) and so on until the list of such persons so voted for, and of the number of votes shall be complete : Given under my (or our) hand (or hands, as the case may be) this day of in the year of our Lord eighteen hundred , and two fair copies of such cer- tificate and return shah be made by the sheriff, deputy sheriff or other officer, as the case may be, under his or their hands, one of which shall be dehvered to some one person among the fifteen, who shall have therein the greatest number of votes, given at the election poll so held by the sheriff or other officer so certifying, as the case may be, and the other shall be returned to the governor of this State, within eight days after the day of holding the said polls, under the penalty of four hundred dollars, upon such sheriff, his P^ndty in case deputy or other officer holding such election, in the case of his or make return. 246 ELECTORS OF PRESIDENT, ETC. [ChAP. XLI. their failure in so doing, to be recovered by the attorney general or solicitor, to the use of the State, by an action of debt in any ' court of record within this State in the name of the governor ; and the governor shall, upon the receipt of such certificates or so many thereof as shall have been transmitted to and received by him, on or before the Monday before the first Wednesday of De- cember next following the day of holding said polls, proceed to ascertain from the said returns the fifteen persons for whom the greatest number of the whole number of votes throughout the State shall have been given, and he shall, on or before the first Wednes- day in December next following the day of holding the said polls, make out three lists of the names of the fifteen persons for whom the greatest number of votes shall appear to have been given as aforesaid, and dehver or cause the same to be dehvered to the said fifteen persons, so having the greatest number of votes, as direct- ed by the act of congress, and the governor shall lay before the General Assembly, for their inspection, the said certificates so by him received from the several sheriffs as aforesaid. Election of 2. Four years after the election above described, and every electors to be fQ^j. years thereafter, there shall be, in the several counties of this held every lour „ •' i i • r i r • i i • years. otate, another election oi electors to vote tor president and vice president of the United States, to be held on such days and at such places as are herein before prescribed ; and all such acts, mat- ters and things as are herein directed to be done and observed at and after the election here directed, by the governor of this State, and by the sheriffs of the several counties, or deputy sheriffs or other officers, shall be done and observed at every subsequent election by the governor for the time being, and by the then sheriffs of the several counties, deputy sheriffs or other officers respectively, under the rules, regulations and penalties herein pre- scribed and directed. W^hen and 3. The fifteen persons, for whom the greatest number of votes tors^shalfmeTt throughout the State shall appear to have been given as aforesaid, to give their shall be and they are hereby declared to be electors, for and on behalf of this 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 forty, and on the first Wednesday of December next after their appointment in each and every year, in which they shall be appointed, and then and there give their votes for president and vice president of the United States. The governor 4. Whenever the offices of president and vice president of the shall issue his Uj-jited States shall both become vacant, it is hereby declared to proclamation ■, , ■, n i ri-o ci-i- lor an election be the duty 01 the governor ol this State lor the time being, upon in case of a va- ^.g(,gjyjjjo. g^ notification of such vacancy from the secretary of state cancy in both r i t? • i o c i • i • i • i • i- the offices of ot the United btates, forthwith to issue his proclamation, directing vice president ^^^^ sheriffs of the several counties of this State, or other officers, to hold elections, within their respective counties, for the appoint- 2. 1?15, c. 836, s. 2. 3. 1815, c. 886, s. 3. 4. 1815, C. 886, s. 4. Chap. XLL] electors of president, etc. 247 ment of electors of president and vice president of the United States, on the days of the year in which such vacancy may hap- pen, as are herein prescribed for holding the regular and stated elections : Provided, there shall be a space of two months between the date of such notification and the said first Wednesday of De- cember : but if there should not be the space of two months between the date of said notification and the said first Wednesday of December, 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 days herein before stated, and it is also hereby declared that the electors, appointed in the man- ner by this section directed, shall meet at the city of Raleigh on the first Wednesday of December after their appointment, and give their votes for a president and vice president of the United States. 5. Each elector, chosqn pursuant to this act, with his own con- penalty on sent previously signified, failing to attend and vote for a president ^^ctors for and vice president of the United States at the time and place here- ten™^ in directed, shall (except in consequence of sickness or other unavoidable accident) forfeit and pay four hundred dollars, to be recovered by the attorney general or solicitor, to the use of the State, by action of debt, in the name of the governor for the time being, in any court of record. And any sheriff or other officer, On sheriffs for duly authorized for that purpose, refusing to take the poll, when '■^^"^i"? ^° ^'^^^ he shall be thereunto required by a person qualified to vote, or making' fdse making or signifying, or delivering or transmitting a false certificate returns, &c. or return of an election, as here directed, or making any erasure or alteration in the poll books, or refusing to suffer any candidate or person qualified to vote, at his or their own expense, to have a copy of the poll books, shall forfeit and pay two hundred dollars, which may be recovered with costs of suit in any court of record, by any person who will sue for the same in an action of debt, one half to the use of the person first suing therefor, and the other half to the use of the State. 6. The electors, appointed in pursuance of this act, shall be Compensation allowed for their travelling to and from the city of Raleigh and "^ ^^^ctors. their attendance, the same compensation, as by law is or may be allowed members of the General Assembly, and shall be entitled to the same privileges as members of the General Assembly : and the same allowances shall be made to the sheriffs or other officers hoHb-^de^""^ holding said elections, for holding the same and conveying the tions "Ic. ^^'^ duplicate certificate to the governor, as is or may be allowed to him or them in the case of an election for members of congress. 7. In case any of the electors, chosen as by this act directed. Electors may should, by sickness or any other cause, not attend and give their caE In' their votes as herein prescribed, the other electors then present shall ^°'^y- and may by vote appoint some other person or persons, as the case may be, to supply the place or places of the person or per- sons so not attending as aforesaid ; and the person or persons, so 5. 1815, c. 886, s. 5. 6. 1815, c. 886, s. 6. 7. 1815, c. 886, s. 7. 248 ENTRIES AND GRANTS. [ChAP. XLII. appointed by the electors, shall be taken and held to all intents and purposes as an elector or as electors to vote for president and vice president of the United States, and as such shall give his vote or their votes in the same manner as the other electors chosen in the manner herein before prescribed. CHAPTER 42. ENTRIES AND GRANTS, AN ACT CONCERNING ENTRIES AND GRANTS OF LAND. Section 1 . WhaX lands subject to entry. 2. Swamp land not exceeding fifty acres. 3. Land in a swamp containing not more than two thousand acres. 4. Appointment of entry takers and sur- veyors. 5. When a vacancy, clerk of the county court to act as entry taker. 6. Oaths and bonds of entry takers and surveyors. 7. Surveyors may appoint deputies. 8. Every citizen may enter lands. 9. Price at which lands may be en- tered. 10. When entry money to be paid. U. On failure to pay, a subsequent en- terer entitled. In case of lapse, the same person shall not re-enter within twelve months. How entries to be made and warrants to issue. How surveys to be made and re- turned. Surveys to be according to priority of entry. When the warrant is lost, duplicate may issue. 17. On the death, &c. of entry taker, successor to issue warrants. 18. How entry takers to make entries for their own use. 19. How surveyors to have surveys made for themselves. 20. Entry takers to make annual returns to the secretary of state. 12. 13. 14. 15. 16. Section 21. Penalty for failure, how to be re- covered. Public treasurer to receive the en- try money. When the secretary shall issue 22. 23. 24. How grants to be authenticated— All grants to be registered — Copies may be registered. 25. How the grant to issue on the death of enterer. 26. When a seal to a grant is lost, it may be renewed. 27. Certain grants heretofore issued to surveyors, &c. confirmed. Certain other grants declared valid. Grants made upon entries, extend- ing into two or more counties, con- firmed. How to correct mistakes made by surveyors or other officers in per- fecting titles to land upon entries. Persons aggrieved by the issuing of patents, how to proceed. 32. Proceedings and judgment of the court in such cases — Copy to be filed in secretary's ofiice. 33. Whenever the State wishes to repeal letters patent or grant, the supreme court to have original jurisdiction. 34. What decree the court may make. 35. Cases now in the superior courts may be removed to the supreme court. 36. Indian reservations not to be en- tered. 37. Time for paying on certain entries extended. 28 29 30 31. /Y^f-7 Chap. XLIL] entries and grants. 249 1. Be. it enacted by the General Assembly of the State of JSTorth Carolina, and it is hereby enacted by the authority of the same, That all vacant and unappropriated lands belonging to this State what lands shall be subject to entry in the manner herein provided, except in subject to en- the cases hereinafter mentioned. It shall not be lawful for any entry taker to receive an entry for any lands lying to the westward of the line, run by Meigs and Freeman in the year one thousand eight hundred and two, as. the then boundary line between this State and the Cherokee nation, except the vacant and unsurveyed lands that have been acquired by treaty from the Cherokee Indians in the years one thousand eight hundred and seventeen and one thousand eight hundred and nineteen ; or of any lands covered by the waters of any of the lakes of the State, or of any lands now covered by the waters of a lake that shall he gained therefrom by the recession, draining or diminution of such waters : and every entry made and every grant issued, contrary to the intent and meaning of this enactment, shall be void. 2. It shall not be lawful for any entry taker to receive any entry of norexceedk^ vacant and unappropriated marsh and swamp lands, except in cases fifty aeres. where the quantity of land does not exceed fifty acres in one body, and that situate between the lines of tracts heretofore granted ; except in the case hereinafter provided. 3. It shall be lawful for entry takers to receive entries of marsh Land in a or swamp land, when the quantity of land in anyone marsh or f^PP '^"" 1 1 11 r» • 7 7 1 taming not swamp does not exceed two thousand acres : Frovided, however, more than two that this act shall not be construed to extend to any swamp ©r ^^^^^^""^ '^"^^' marsh lands, which have been surveyed by engineers ini the employment of the State, with a view to the draining and reclaim- ing the same ; and every entry or grant made for marsh or swamp lands, contrary to the intent and meaning of these enactni^^iits, shall be void. 4. The justices of the peace in every county, at the next court ^PPy^"'^^^"®"^ °^ which shall be held after each respective vacancy, may, vdien and surveyors, they deem it necessary, elect one good and sufficient person to receive entries of claims for lands within such county respectively ; and also shall elect not more than two persons properly qualified to be surveyor of lands within the same ; at which election, who- soever shall appear to have the majority of votes of the justices then present shall be deemed duly elected, and no other : and every person so duly elected for either of the offices aforesaid shall hold the said offices respectively during the term of four years. 5. Where a vacancy now exists or shall hereafter happen i" cancTderk of the office of entry taker in any county, the clerk of the court of the county pleas and quarter sessions of the said county shall be bound to actg""^ ^°j^g^^_^^ as entry taker, until such vacancy be filled by a regular appointment, 1. 1809, c. 774. s. 1.— 1817, c. 950, s. I.— 1827, c. 6. s. 1, 2, 3.— 1335, C. 6. 2. 1S26, c. 6. 3. 1830, c. 12. 4. 1777, c. 114, B. 2.— 1322, c. 1147, 8. 1.— 1831, c. 6, s. 2.— 1834, c. 27, s. 1. 5. 1831, c. 6, s. 3. VOL. I. 32 250 Oaths and bonds of entry takers and sur Teyors. Surveyors may appoint dep- uties. Every c'tizcn may enter lands. Price at which lands may be entered. When entry money to be paid. On failure to pay, a subse- quent enterer entitled. ENTRIES AND GRANTS. [ChaP. XLII. to take charge of the books belonging to the office, to dischai-ge all the duties and receive the emoluments, and shall be subject to the rules, restrictions and penalties prescribed by law for entry takers regularly appointed. 6. Every entry taker and surveyor, before entering opon the execution of his office, shall take and subscribe in open court the oath prescribed for the qualification of officers, and also an oath that he will well and impartially discharge the several duties of his respective office ; and the surveyor shall enter into bond with suf- ficient security, to be approved by the county court, in the sum of four thousand dollars, payable to the State of North Carolina, for the faithful discharge of his duties ; and every entry taker shall also give bond in the sum of two thousand dollars, payable to the State of North Carolina, that he will well and truly discharge the duties of his office. 7. It shall and may be lawful for each and every surveyor in this State, in his respective county, to appoint a deputy or depu- ties, who shall, previous to entering on the execution of his or their office, be qualified in a similar manner with the surveyor ; and the surveyor making such appointment shall be liable and accountable for the conduct of such deputy or deputies, in the same manner as for his own conduct in office. 8. It shall and may be lawful for any person, who is or shall hereafter become a citizen of this State, to make with the entry taker of any county within this State a claim for any lands, subject to entry, lying in such county ; every such citizen performing every thing by this act required to be previously done. 9. Five cents on the acre shall be paid to the treasurer for •every acre of land which may be entered in this State ; Provided ^ that no person shall enter more than one hundred acres within any one year at the price of five cents per acre : if any person shall enter more than one hundred acres of land, in the same survey or in any one year, he shall pay into the treasury the sum of ten cents on the acre for each and every acre which he may enter. 10. All entries of land made in the course of any one year shall, in every event, be paid for on or before the thirtyfirst day of December, which shall happen in the second year thereafter ; and all entries of land, not paid for agreeably to this provision, shall become null and void, and the land shall revert to the State, and may be entered by any other person as unappropriated lands. 11. Whenever any entry of land shall be made in any entry taker's office in this State, and the enterer shall fail to pay the purchase money for the same, within the time limited by law, it shall and may be lawful for any person who may have made a sub- sequent entry for the said land, to pay the purchase money into the treasury and have a grant perfected, in the same manner as the 6. 1777, c. 114, s. 13. 7. 1779, c. 140, s. 5. 8. 1777, c. 114,8. S. 9. 1S33, c. 11. 10. ISOa, C. 759. 11. 180'fi, C r71. Chap. XLIL] entries and grants. 251 original enterer would have done, had he not failed to pay the same. 12. No lands now entered on the books of the entry takers of"iapsrthe"same this State, or which shall hereafter be entered, and the entries of person shall which shall be suffered to lapse by non-payment of the price ^"^j^^^^^'^gj^g thereof, shall be re-entered, within twelve months after the time at months, which such entry shall lapse, by the person or persons in whose name or names such entries were made, but such re-entries shall be utterly null and void. 13. The claimant of any land shall produce to the entry taker How entries to a writins:, siened bv such claimant, settins; forth where the land ^^ ^^'^f ^^4 ~'. ~ ' ' o _ warrants to is- shall be situated, the nearest water course, mountams and remark- sue. able places, and such w.iter courses and remarkable places as may be therein, the natural boundaries and lines of any other person or persons, if any, which divide it from other lands ; and every such writing shall be on one quarter sheet of paper at least, and shall be endorsed by the entry taker with the name of the claimant, and 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 mar- gin into spaces of equal distance, every 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. 14. Every county surveyor, upon receiving the copy of the How surveys entry and order of survey for any claim of lands, shall, as soon as l-etuinTd, ^ may be, lay off and survey the same, agreeably to this act, 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 water courses and other remarkable places, crossed or touched by or near to the lines of such lands, and also the quantity of acres ; and shall transmit the plats to the secre* tary's office or deliver them to the claimant, within twelve months, together with the warrant or order of survey, one of which, with the warrant, shall be filed by the secretary, and the other annexed to the grant ; and no surveys shall be made without chain carriers, who shall actually measure the land surveyed, and shall be paid by the party for whom the survey shall be made, and such chain car- riers shall be sworn to measure justly and truly, and to deliver a true account thereof to the surveyor, which oath every surveyor is hereby empowered and required to administer. 15. The surveyor shall survey all entries of land according to Surveys to be the priority of such entry, paying due respect to the number of ^^?°™i'ig^° each warrant, and every grant hereafter to be obtained by any ^^y'^ ^ subsequent entry or entries, otherwise than is by this enactment 12. Amendment. 13. 1777, c. 114, S. 5.— 1733, C. 185, S. U. 14. 1777, c. 114, s. 10. 15. 1787, c. 279, s. 1. • to issue war- rants. 252 ENTRIES AND GRANTS. [ChAP. XLII. directed, shall be and the same is hereby declared void and of no effect : Provided nevertheless, that nothing herein contained shall be construed to prevent any person, making a subsequent entry on any lands, from surveying and obtaining a grant, as the law directs, for all such surplus land as shall remain, after the enterer or enter- ers of such land hath surveyed his, her or their entry or entries as aforesaid. When the ^ 6. When any person has made or shall hereafter make an entry warrant is lost, of lahds, as required by law, which entry shall not have become issue.^^^^ ^^^ void by lapse of time, and upon which the entry taker has issued or shall issue his warrant of survey, and the same be lost by acci- dent, it shall be lawful for the entry taker, on due proof being made to his satisfaction by affidavit of the claimant or the surveyor or deputy surveyor, to issue a duplicate warrant of survey of the same tenor and date, taking care to set forth in the face of said warrant that the same is a duplicate, in which case such warrant shall be as vahd and binding as the original. On the death, yj j^j gjj cases where an entry shall be made in the office of taker, successor any entry taker, and such entry taker shall die or resign before a warrant shall be issued thereupon, it shall be the duty of the suc- cessor of such entry taker, after being duly appointed and quali- fied, to issue a warrant upon such entry, in the same manner as the original entry taker might have done, if no vacancy in the office had occurred : Provided nevertheless, that nothing herein contained shall be construed to authorize the issuing of warrants in cases prohibited by this act, where the application shall not be made in due time. How entry 18. If any entry taker shall be desirous to make any entry of entrieVfor'^^'^^ lands in his own name, such entry shall be made in its proper their own use. place, before a justice of the peace of the county, not being a surveyor or assistant, which entry the justice shall return to the county court at their next sitting, and the county court shall insert such entry ; and every entry made by or for such entry taker, in any other manner than as herein directed, shall be illegal and void, and any other person may enter, survey and obtain a grant for the same land. How surveyors 19. When a county surveyor shall wish to have lands surveyed, madeTorthem- ^^ ^^^^ county where he acts as principal surveyor, for the purpose selves. of obtaining a grant to the use of himself from the State for the same, the county court of said county shall appoint some person to make the survey, and the entry taker of lands shall direct his warrant of survey to the person by name authorized by this act to survey ; and all surveys, certificates, and plats of the same, done in pursuance of this act, shall be made under the same regulations as prescribe the duty of the county surveyor in similar cases ; and no other survey than is hereby authorized shall be necessary to enable county surveyors to obtain a grant of land from the State. 16. 1814, C. 878, S. 1. 17. 1835, c. 19. 18. 1777, c. 114, s. 17. 19. 1828, c. 23, s. I. Chap. XLIL] entries and grants. 253 20. It shall be part of the official duty of every entry taker to Entry takers make return to the secretary annually, on the first day of Decern- return^'^to"""-^^ ber, of all lands entered with him, under a penalty of two hundred retary of state, dollars. 21. It shall be the duty of the secretary of state, and he is Penalty for hereby required to furnish the attorney general, at every spring be recOTered ^'^ term of the superior court of Wake county, with a certificate of failure in every case, where any entry taker shall fail to make return agreeably to law, and it shall be the duty of the attorney general to move for judgment against such entry taker and his securities, and it shall be lawful for the court in every such case to cause judgment to be entered accordingly. 22. It shall be the duty of the public treasurer to receive the Public treasurer purchase money for vacant and unappropriated lands, upon the g^try money. presentation to him of the certificate of the secretary of state, set- ting forth the number and date of the entry, and quantity of acres found by the surveyor to be vacant, as the same may appear to exist by the returns made to him from the surveyor, or entry taker, or from the entry taker's warrant or the plats of survey. 23. No grant shall issue on the treasurer's receipt for the pur- When the sec- chase money, countersigned by the comptroller ; but it shall be sue^^ants^. ^^' the duty of the comptroller to make out and deliver to the secre- tary a certificate, conformable to each receipt by him counter- signed, on which the secretary is required to issue the grant. 24. The secretary shall, on apphcation of the claimant, make How p-ants to out grants for all surveys returned to his office, which grants shall ted. be authenticated by the governor, countersigned by the secretary and recorded in his office : 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 per- All grants to son obtaining a grant for lands shall, within twelve months after registered. such grant shall be perfected as aforesaid, cause the same to be registered in the register's office of the county where the land shall lie ; it shall and maybe lawful for any person to cause to be regis- Copies may be tered in the office of the register of the county, where the lands registered. lie, any certified copy of a grant, from the office of the secretary of state, for the lands lying in such county ; and such registration duly made shall have the same effect in law as if the original had been registered. 25. In case of the death of any person, who heretofore has How the grant 1 1111 r 1 r 1 1 T t to issue on the made or shall hereafter make an entry of lands, pendmg the same death of the or before making out the grant, the secretary shall issue the grant enterer. in the name of the decedent ; and those interested, either as heirs at law, devisees, tenants in dower or by the courtesy, shall have the same estate as if the land had been granted during the life of the decedent. 20. 1796, c. 4.35, s. 9.— 1821, c. 1107, s. 1.— 1833, c. 15, s. 2. 21. 1833, c. 15, s. I. 22. 1827, c. 23, s. 1.— 1829, c. 30. 23. 1799, c. 525, s. 4 24. 17S3, c. 1S5, s. 14.— 1796, c. 455, s. 1.— 1799, c. 525, s. 2. 25. 1715, c. 4, s. 6.— 1793, c. 493, s. 6. 254 ENTRIES AND GRANTS. [ChAP. XLIL When a seal to a grant is lost, it may be re- newecl. Certain grants heretofore is- sued to survey- ors, &c. con- firmed. Certain other grants declared valid. Grants made upon, entries extending into two or more counties con- firmed. How to correct mistakes made Ijy surveyors or other officers in perfecting titles to land upon entries. 26. In all cases where the seal annexed to a grant, issued by the State, is or shall be lost or destroyed, then the governor for the time being may, on the certificate of the secretary of state that such grant was fairly obtained, cause the seal of the State to be affixed to such grant, and the same so affixed shall give the said grant the same validity as the seal first affixed thereto. 27. Grants of land heretofore made by the State to surveyors and deputy surveyors, upon surveys, plats and certificates of the same, made by them for themselves respectively, without other illegality, and without fraud, and without partiality, the certificates in all cases being signed by the principal surveyor, are hereby confirmed and declared to be good and valid, any law to the con- trary notwithstanding. 28. All grants issued by the secretary of state, previous to the year one thousand eight hundred and twenty, on surveys made fairly and without fraud, and signed by the deputy surveyors only, shall be and the same are hereby validated and declared good and effectual to pass all the right of the State in and to said land, in as full and ample a manner as if such returns had been made by the surveyors of the respective counties : Provided nevertheless^ that nothing herein contained shall affect any entries made or grants obtained on legal returns for such lands previous to the year one thousand eight hundred and twentynine. 29. Whereas many of the citizens of the State, on making entries of lands near the respective county lines wherein they reside, either for want of proper knowledge of the land laws of the State or not knowing the county lines, have frequently made entries and extended their surveys on such entries into other coun- ties than those v/herein 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 in other counties than those where the entries were made ; for remedy whereof, Be it enacted, ^c, That all grants issued on entries made for land situated as aforesaid, when the money has been paid into the public treasury, shall be good and valid against any entries, which may be hereafter made or grants issued thereon. 30. Whenever there has been or hereafter may be, an error by the surveyor in platting or making out the certificate for the secretary's office, or the secretary shall mistake in making out the courses agreeably to said returns, or misname the claimant, or make other mistake, so as such claimant shajl be injured thereby, the claimant so injured may prefer a petition to the court of pleas and quarter sessions or the superior court of the county, in which the land lies, setting forth the injury which he, she or they might sustain in con- sequence of such error or mistake, with all and singular the mat- ters and things relative thereto ; and the said court, seven justices being present, if the petition is in the court of pleas and quarter 26. 1807, C 727. 27. 1823, c. 23, s. 2. 2?. 1323, c. 46. 29.. 1805, c. 675.— 1834, c. 17. 3J. 1790, c. 325.— 1793, C. 504.— 1804, c. 655.— 1314, c. 876. Chap. XLIL] entries and grants. 255 sessions, is hereby authorized to hear testimony respecting the truth of the allegations set forth in the said petition ; and, if it shall appear to them by said testimony, that from the return of the sur- veyor or the error of the secretary, the patentee of such lands is liable to be injured thereby, such court is hereby required to di- rect their clerk to certify such facts as appear to their satisfaction to the secretary of state, who shall file the same in his office and correct such error in the patent, and hkewise on the records of his office, for which he shall receive forty cents for each and every patent so altered, except where the error was committed by the secretary ; the costs of such suit shall be the same as in all other civil suits originated in such courts, and shall be paid by the peti- tioner, except when any person may have made himself a party to prevent the prayer of the petitioner being granted, in which case the party failing shall pay the costs as in other suits at law ; the benefits granted by these enactments to the patentees of land shall be extended 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 making such order shall direct that a copy thereof be recorded in the register's books of the county : Provided, that no petition to correct errors as au- thorized by these enactments shall be brought, but within three years after the date of the patent, alleged to be erroneous ; and if any petition be brought after the expiration of three years from such date, it shall be the duty of the court to dismiss the same, and all proceedings had thereon shall be deemed null and of no efi:ect : Jind provided also, that nothing in these enactments con- tained shall affect the rights or interests of any person claiming un- der a patent issued between the period of the date of the grant al- leged to be erroneous, and the time of filing the petition, unless such person shall have had due notice of the filing of such 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. 31. When any person or persons, claiming title to lands in any Persons ag- of the counties of this State, under a grant or patent from the kinglglJ^J!^^^/^^'^ of Great Britain, any of the lords proprietors of North Carolina, tents, now to or from the State of North Carohna, shall consider himself or P'^°'^'^'^'^' themselves aggrieved by any grant or patent issued or made, since the fourth day of July, one thousand seven hundred and , seventysix, to any other person against law or obtained by false suggestions, surprise or fraud, such person so aggrieved may file his petition in the superior court of law for the county in which such land may lie, 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 per- son, owner or claimant under such grant or patent, requiring such 31. 1793, c. 7. (Iredell's tevisal.) 256 ENTRIES AND GRANTS. [ChAP. XLIT. Proceedings and judgment of the court in such cases. Copy to be filed in sec- grantee, patentee or owner, to show cause why such grant or pa- tent shall not be repealed and vacated. 32. The writ of scire facias shall be considered the leading pro- cess, 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, in which case 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 suggestions, they may vacate the same ; and a copy of such judgment, after being entered at large upon retary's office, record, shall be filed by the petitioner in the secretary's office, where it shall be recorded in a book to be 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. Whenever the 33. Whenever it shall be deemed necessary, on the part of the re^peaMelterV° State, to institute proceedings to vacate and repeal any grant or patent or grant, other letters patent for fraud, false suggestions, or other cause, the to^'are^original ^"P"'^™^ court shall havc Original cognizance thereof; and such jurisdiction, proceedings shall be by bill in equity, or information in the nature of a bill in equity, to be exhibited in the name of the attorney general for the time being on behalf of the State ; and the proceedings thereupon shall be according to the course and practice in equity causes in the courts in this State. 34. When, upon the hearing of such cause, it shall be ascer- tained that such grant or letters patent have been obtained by fraud, or false suggestion, or against law in any other respect, the said supreme court shall have full power, by its decree, to declare the same repealed, rescinded and annulled ; and also to 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. 35. When any such bill in equity or information in nature there- of shall have been already exhibited in any of the superior courts removed to the of equity, and may now be pending therein, the same shall at any supreme court. . ^ •" ' . r ■ \ ^^i-i i i ri tune, on motion oi either party therem, be, by order or the court in which the same is pending, moved into the supreme court ; and the said supreme court shall, by such order of removal, acquire w, and have the same cognizance of the cause, as if it had been origi- nally commenced in said court, according to the provisions of the thirtythird section of this act. What decree the court may make. Cases now in the superior courts may be Indian reserva- tions not to be entered. 56. Nothing in this act contained shall be so construed as to authorize or allow the entry of any portion of the Cherokee lands, which were reserved or allotted to any Indian or Indians under the Cherokee treaties, which the State has since acquired by purchase ; and the secretary of state is hereby directed to issue no grant for 32. 1798, c. 7. (Iredell's revisal.) 33. 1S30, c 2, s. I. 34. 1830, C. 2, S. 2. 3.5. 1S30, C. 2, s. 3 35. 1S35 (Amendment.) Chap. XLIIL] estates. "161 any portion of the lands of the latter description, until the Gener- al Assembly shall otherwise order and direct. 37. All entries of lands, for the years one thousand eight hun- rpj^^^gg ^^j. dred and thirtythree, one thousand eight hundred and thirtyfour, ing on certain and one thousand eight hundred and thirtyfive, the purchase money g^!"^^ *^^^™ for which may become due and payable on or before the fifteenth day of December, in the year of our Lord one thousand eight hundred and thirtyseven, may be paid in, and the payment of the same is hereby extended to the fifteenth day of December, in the year of our Lord one thousand eight hundred and thirty eight, and on that day shall be punctually paid ; any law to the contrary not- withstanding : Provided always, that nothing in this section shall be so construed as to prejudice the priority of the entry of land by any person, the payment of the purchase money for which is extended by this section, but that all such entries shall have and possess all the privileges and benefits of the existing laws, as if the purchase money had been paid at the time it became due, and this section had not been passed : Provided also, that nothing in this section contained shall be construed so as to interfere with any other person who has made entries before the passage of this act. 37. 1S36. (Amendment.) Note. — References TO Adjudged Cases. Sect. 1. Sears 2?s. Parker,! Hay. 126. Seekright rs. Bogan, ib., 176. Dickie t's. Hoodenpile, ib., 358. Jones vs. Jones, ib.. 48S. Terrill vs. Mooney, 1 Murph., 401. McKenzie vs. Hawlet, N. C. Term R., 161. Tatum vs. Sawj^er, 2 Hawks, 226. Tate vs. Greenlee, ib., 231. Ingram »s. Threadgill, 3 Dev. 59. Sect. 14. Avery rs. Walker, 1 Hawks, 140. Harris vs. Ewing, 1 Dev. and Bat. Eq , 369. Sect. 24. Hunter I's. Williams, 1 Hawks, 221. Van Pelt vs. Pugh, 1 Dev. and Bat. 210. Sect. 31. Terrill »s. Logan, 3 Hawks, 319. McRea vs. Alexander, ib., 322. Feath- erston vs. Mills. 4 Dev. 596. Crow vs. Holland, ib., 419. CHAPTER 43. ESTATES. AN ACT CONCERNING ESTATES. Section 1. Estates in tail converted into fee simple. 2. In joint tenancy the share of a per- son dying shall not go to the sur- vivor — Proviso as to partners in trade. VOL. I. 33 Section 3. Certain contingent limitations in deeds or wills, how construed. 4. In conveyances to uses, the posses- sion shall be transferred to the use without livery of seizin. 5. Grantees of reversions to have the $^. 258 ESTATES. [Chap. XLIII. Section like advantages against the tenants for life or years, as the grantors had. 6. Tenants for life or years to have like advantages against the grantees of reversions, as they had against the grantcrs. 7. The buying and selling pretended rights or titles prohibited. 8. What warranties shall be void. 9. What leases, made by husband and wife, shall be good against the les- sors. 11. 12. Section 10. What leases, made by husband and wife, shall not be good. Tenants for life protected against feigned recoveries. Proviso for recoveries by good title. 13. Certain recoveries by as.sent good. 14. A termor may falsify for his term, 15. Terms for years protected against recoveries. 16. Persons having lands by execution protected. Estates in tail converted into fee simple. In joint tenancy the share of the person dying shall not go to the survivor. Proviso as to partners in trade. 1. Be z7 macUd hy the General Assembhj of the State of Jforth Carolina, and it is herekj enacted by the authority of the same, That any person seized of an estate in general or special tail, whether by purchase or descent, shall be held and deemed to be seized of the same in fee simple, fully and absolutely without any condition or limitation whatsoever, to him, his heirs and assigns forever, and shall have full power and authority to sell or devise the same as he shall think proper ; and such estate shall descend under the same rules as other estates in fee simple ; and all sales and con- veyances, made bona fide and for valuable consideration, since the first day of January, in the year of our Lord one thousand seven hundred and seventyseven, by any tenant in tail in actual posses- sion of any real estate, where such estate hath been conveyed in fee simple, shall be good and effectual in law to bar any tenant or tenants in tail and tenants in remainder, of and from all claim or claims, action and actions and right of entry whatsoever, of, in and to such entailed estate, against any purchaser, his heirs or assigns 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 part or share of any tenant dying shall not descend or go to the surviv- ing tenant or tenants, but shall descend or be vested in the heirs, executors, or administrators, or assigns respectively of the tenant so dying, in the same manner as estates held by tenancy in com- mon, any law, usage or custom to the contrary notwithstanding : Provided always, that estates held in joint tenancy for the pur- pose of carrying on and promoting trade and commerce, or any other useful work or manufacture, established and pursued with a view of profit to the parties therein concerned, shall be vested in the surviving partner or partners, in order to enable him or them to settle or adjust the partnership business, or pay off the debts which may have been contracted in pursuit of the said joint busi- ness ; but as soon as the same shall be effected, the survivor or survivors shall account with, and pay, and deliver to the heirs, ex- ecutors, administrators and assigns respectively of such deceased partner or partners, all such part, share and sums of money as he or they may be entitled to by virtue of the original agreement, if 1. 1734, c. 204, s, 5. 2. 1784, c. 204, s. 6. Chap. XLIIL] estates. 259 any, or according to his or their share or part in the joint concern, in the same manner as partnership stock is usually settled between joint merchants and the representatives of their deceased partners. 3. Every contingent hmitation in any deed or will, made to de- Certain contin- pend upon the dying of any person without heir or heirs of the f^ dllXoT""^^ body, or without issue or issues of the body, or without children, wills, how Con- or offspring, or descendant, or other relative, shall be held and in- ®^'^^^'^- terpreted a limitation to take effect, when such person shall die, not having such heir, or issue, or child, or offspring, or descendant, or other relative (as the case may be) living at the time of his death, or born to him within ten months thereafter, unless the in- tention of such limitation be otherwise, and expressly and plainly declared in the face of the deed or will creating it : Provided, that the rule of construction contained in this section shall not extend to any deed or will made and executed before the fifteenth of Jan- uary, one thousand eight hundred and twenty eight. 4. By deed of bargain and sale, or by deeds of lease and la conveyances release, or by covenant to stand seized to use, or deed operating the possession by way of covenant to stand seized to use, the possession of the shall be trans- bargainor, releasor or covenantor shall be deemed heretofore to use without have been and hereafter to be transferred to the bargainee, re-^i^ery «>f seizin. leasee, or person entitled to the use, for the estate or interest which such person hath or shall have in the use, as perfectly as if the bargainee, releasee or person entitled to the use had been enfeoffed with livery of seizin of the land, intended to be conveyed by such deed or covenant. 5. Whenever a grant or lease shall be made, by any person or *^''^'?'^^®^ °f '■^- .. ' */ ^ J 1 vsrsions to n&vc persons or body politic or corporate, of any reversion in lands, the like advan- rents, tenements or hereditaments, which lands, rents, tenements 'f^^® against , T , . c 1 1 11 1 1 I 1 1 the tenants for or hereditaments at the time oi such conveyance shall oe held, by life or years, as any other person or persons, body pohtic or corporate, for a term^'^^^'"^'^^°'"® of life or lives or for a term of years, such grantee or grantees, lessee or lessees, their heirs, executors, administrators, successors and assigns, shall have the like advantages against the tenant for life or lives and against the tenant for years, their executors, adminis- trators, successors 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 expressed in the inden- tures, by which said tenants for Hfe or lives or the said tenants for years hold the same lands, tenements, rents or hereditaments, against said tenants for life or lives and against said tenants for years, their executors, administrators, successors and assigns, as the grantors or lessors themselves or their heirs or successors ought or might have. 6. All lessees and grantees of lands, rents, tenements and Tenants for hereditaments for term of years, life or lives, their executors, j,'a^,°^^e7id administrators, successors and assigns, shall and may have like vantages 3. IS27, c. 7. 4. 27 Hen. S, c. 10. 0. 32 Hen. 8, c. 34, s. \. 6. 32 Hen. 8, c. 34, s. 2. --3: 260 ESTATES. [Chap. XLIII. versions, as they had against the grantors. ited. against the actioii and advantage and remedy against every person and persons, grantees of re- ]3odies politic and Corporate, their heirs, successors and assigns, which have or shall have any gift or grant from any person or per- sons of the reversion of the same lands, rents, tenements and hereditaments so letten or any parcel thereof, for any condition, covenant or agreement contained or expressed in the indenture of their lease and leases, as the same lessees or any of them might and should have had against the said lessors and grantors, their heirs and successors. The buying and 7. No person shall buy, sell or obtain any pretended right or sellm^pretend- ^jj-jg Qy. ^gj^g promise or Covenant to have any rio:ht or title of ed rights or "^ ' . r jo titles prolub- any person, m or to any lands or tenements, (except such person . as shall sell, covenant or promise the same, or they by whom they claim, have been in possession of the same or of the reversion or remainder thereof, or taken the rents and profits thereof one year next before the bargain made,) upon pain that he that shall make any such sale, promise, covenant or grant, shall forfeit the whole value of the lands so bargained, sold, covenanted or agreed to be sold or granted, and the buyer, knowing the same, shall forfeit also 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, it shall be lawful for any person, being in the lawful possession, by taking the rents and profits of any tenements, to buy the pretended right of any other person to such tenements. 8. All warranties, which shall be made by any tenant for life of any lands, tenements or hereditaments, the same descending or coming to any person in reversion or remainder, shall be void and of no effect ; and likewise all collateral warranties of any lands, tenements or hereditaments by any ancestor, who has no estate of inheritance in possession in the same, shall be void against his heirs. 9. All leases made of any lands, tenements or hereditaments, made ^Y^"^^^ by Writing indented or deed poll, for term of years or for life, by shall be good any person of full age having any estate of inheritance in fee simple against the les- j^ ^j^^g gQ^g^ jj^ their own right or in right of their wives or jointly with their wives, shall be good in law against the lessors, their wives and their heirs and every of them : Provided the wife be made party to such deed of lease made by her husband of any lands, tenements or hereditaments, being the inheritance of the wife, she being thereto privily examined according to law, and that every such lease be made by indenture in the name of the husband and wife, and she to seal the same, and that the rent be reserved to the husband and wife, and to the heirs of the wife according to her estate, and that the husband shall not alien the rents longer than during the coverture. 10. The above section shall not extend to any grant of any What warran- ties shall be void. What leases What leases made by hua- 7. 32 Hen. S, c. 9, s. 2 and 4. S. 4 Amie, c. le, s. 21. 9. 33 rfen. a, c. 2Sj s. 1 and 3- 10. 32 Hen. 8, c. 23, s. 2. Chap. XLIII.] estates. 261 reversion, nor to any lease to be made without impeachment of band and wife waste, nor to any lease to be made above the number of twenty- ^J^f^ °°^ ^^ one years or three lives from the making thereof, and every per- son to whom the reversion of such lands, tenements and heredita- ments shall appertain, after the death of such lessors, shall have the like remedy against the lessees as the lessor might have had. 11. Where persons are seized of lands, as tenants by the cour- Tenants for tesy, or otherwise for term of life, or of estates determinable upon ^^'® .P™*®'=.^^'^ , life, all recoveries, by agreement of parties or by covin, against recoveries." any such particular tenant, shall as against such person, to whom any reversion or remainder appertains, be void. 12. The above section shall not be prejudicial to any person Proviso for re- that shall by good title recover lands by any former title. "^ood^title^ 13. All recoveries of land by assent of any person, to whom Qgj.jj^'jj j.^^^^, any reversion or remainder thereof shall appertain, (so that the eries by assent, same assent appear of record in any court,) shall be in like force ^°° " against such persons as shall assent as heretofore. 14. A termor may falsify, for his term, recoveries in such wise a termormay as a tenant of the freehold may. falsify for his • ■ tGrm. 15. The termors, notwithstanding such recovery, shall enjoy -pgj.j^gfpj.g their terras, according to their leases, against all such recoveries ; protected and such recoverors, and their heirs and assigns, shall have like gl^g*^^' ^'*^'^°^' remedy against the termors, their executors, administrators and assigns, by action of debt for the rents and services reserved, and also like actions of waste done after the recoveries had, as the lessors might. 16. All persons having lands by execution shall have like Person having remedy to falsify recoveries as is provided for lessees for years, icmfon pro- tected. 11. 14 Eliz. c. 8, s. 2. 12. 14 Eliz. c. 8, s. 3. 13. 14 Eliz. c. S, s. 4. , 14. 21 Hen. 8, c. 15, s. 2. 15. 21 Hen. 8, c. 15, s. 3. 16. 21 Hen. 8, c. 15, s. 4. Note — References to Adjudged Case.?. Sect. 1. Minge vs. Gilmore, 1 Hay. 279, Car. L. Rep. Wells vs. Nevirhold, Tay. 166. 262 EVIDENCE IN CERTAIN CASES. [ChAP XLIV. CHAPTER 44. EVIDENCE IN CERTAIN CASES. / AN ACT PRESCRIBING WHAT SHALL BE EVIDENCE IN CERTAIN CASES. , ^ , Section 1. Evidence necessary to support title under H. E. McCulloch. 2. Grant from the proprietors, or a copy thereof in titles under H. E. Mc- Culloch, sutficient evidence without producina: the grant to the proprie- tors. 3. What shall be evidence of the law of another state. 4. Printed statute book, evidence of private acts. Section 5. Other evidence of private acts. 6. Copies from the secretary's oiRce, of plats of survey, may be read as evidence. 7. What shall be evidence of admin- istration and of returns of admin- istrators in other states. 8. Certified copies of wills or deeds from other states to be received in evidence. 1. Be it enacted by the General Assembly of the State of JSCorth Carolina^ and it is hereby enacted by the authority of the same, Evidence ne- That in all actioiis and suits at law or in equity, wherein it may be porrtitle^unXr necessary for either party to prove title, by virtue of a grant or H. E. McCul- grants made by the king of Great Britain or Earl Granville to ^°^^- Henry McCulloch, or Henry Eustace McCulloch, it shall be held sufficient for such party, in the usual manner, to give evi- dence of the grant or conveyance from the king of Great Britain or Earl Granville, to the said Henry McCulloch or Henry Eus- tace McCulloch, and the mesne conveyances thereafter, without giving any evidence of the deed or deeds of release, relinquish- ment or confirmation of Earl Granville to the said Henry McCul- loch or Henry Eustace Culloch, or of the power or powers of attorney, by which the conveyances from the said Henry McCul- loch or Henry Eustace McCulloch purport to have been made. Grant from the 2. In all trials at law, where the title of either plaintiff or de- ?o''?4he°reonnfendant shall be derived from Henry Eustace McCulloch or Hen- titles under H. ry McCulloch, out of their tracts number one and three, it shall not Efficient ev- ^^ required of such party to produce, in support of his title, either idence without the Original grant from the crown to the proprietors, or a register- grani'to'the ^ ^^ copy thereof, but in all such cases the grant or deed executed proprietors. by such reputed proprietors or by his, her or their lawful attorney, or a certified copy thereof, shall be deemed and held legal and suf- ficient proof of the title of such proprietors, in as full and absolute manner, as though the said original grants were produced and giv- en in evidence. 1. I8J9, C. 1021. 2. 1807, c. 724. Chap. XLIV.] evidence in certain cases. 263 • 3. In all suits, wherein it may be necessary for the decision of what shall be the case to produce in evidence the law of any of our sister states, law of^another it shall and may be lawful for either party to produce in court state. a copy of the law of such state, drawn oft by the secretary of our state, from the copy of the laws of our sister state, depos- ited in his or the executive office, certified under his hand with the seal of the State of North Carolina attached, and it shall be his duty to furnish said copy when required ; and such copy thus attested shall be held and deemed sufficient evidence of the exis- tence of such law. 4. All private acts, which have been or may hereafter be passed Printed statute by the General Assembly and printed by the printer of the State, orprivat^acrs. shall and may be read in evidence, in all cases and in all courts of this State, from the printed statute book. 5. Any of the private acts, heretofore passed and pubhshed by ^tber evidence Francis X. Martin, in his collection of private acts, shall and may ° P"vaeacs. be read in evidence from said collection, or a copy of any private act certified by the secretary of state shall likewise be received in evidence, in any of the courts aforesaid. 6. Copies of the plats and certificates of survey or their ac- Copies from companying warrants, wdiich are or may be filed in the secretary's ^^ secretary's office, when certified as true copies from under the hand of the of survey may secretary, shall be as good evidence in any court of record in this K^ ^^^'^ ^^ ^^' State as the original. 7. When an administration on the goods and chattels of any what shall be person deceased, being an inhabitant in another state, has been ^^'^^g^J^^jf/jj^'^' granted, or a return or inventory of the estate has been made, a and of returns copy of the record of administration or of letters of the same, xLsfnolher' and a copy of the inventory or return of the effects of the deceas- states. ed, after the same has been granted or made agreeably to the laws of the state, where the same has been done, being properly certi- fied, either according to the act of congress passed in May, A. D. one thousand seven hundred and ninety, or by the proper offi- cers of the said state, and the further testimonial of the governor or commander-in-chief that the person certifying is the proper offi- cer or duly authorized by law, shall be allowed to be read as evi- dence in the courts of this State, and shall be admitted in the same manner as a copy from any of the clerk's offices in this State. 8. In cases where inhabitants of other states, by will or deed, certified copies devise or convey property situated in this State, and the original of ^ills or will or deed cannot be obtained, to register in the county where ot^her%ta°Ts to the land lies, or where the property shall be in dispute, a copy of i^'e. received as the said will or deed (after the same has been proved and register- ed or deposited, agreeably to the laws of the state where the per- sons died or made the same,) being properly certified, either ac- 3. 1823, c. 1193, s. 1, 3. 4. 1826, c. 7,s. 1. 5. 1826, c. 7, s. 2. 6. 1822, c. 1154. 7. 1834, c. 4. ■ 8. 1802, c. 623. 264 EXECUTIONS. [Chap. XLV. cording to the act of congress passed in May, one thousand seven hundred and ninety, or by the proper officer of the said state, and the further testimonial of the governor or commander-in-chief of said state that the person certifying is the proper officer or duly authorized by law, in such case the said copy shall be read as evi- dence in the courts of this State, and shall be admitted in the same manner as a copy from any of the register's or clerk's offices therein. Note — ■Refehences to Adjudged Cases. Sect. 3. State vs. Jackson, 2 Dev. 563. Sect. 8, Knight vs. Wall, 2 Dev. and Bat. CHAPTER 45. EXECUTIONS. AN ACT CONCERNING EXECUTIONS AND EXECUTION SALES. Section 1. 2. 3. 4. 5. Houses, lands and other heredita- ments may be taken in execution. All process of execution to issue against lands and tenements, as well as goods and chattels, though the latter are to be first taken. Sheriff may deliver goods, and one half of the lands of the debtor to the plaintiff, until the debt or dam- ages he levied, &c. Execution maybe levied upon goods, lands, ifec. held in trust for the person against whom the execution issued — Purchaser under such exe- cution, to hold the property dis- charged of the trust. The equity of redemption and the legal right of redemption in lands, liable to execution. Sheriff to set forth in his deed that the land was under mortgage. What articles shall be exempt from execution. When justices' execution shall be levied on land and returned to court, what to be done. ■Where the sale of the land does 10. 11. 12. Section not satisfy the judgment and costs, the court to grant execution for the balance. How and where sales of land and slaves under execution shall be made. County court may appoint addition- al places of public sale. Sheriff or other officer to give notice of the sale of land, &x;. under exe- cution — How and for what length of time advertisement shall be made. 13. At what time of the day execution sales shall commence. Penalty on sheriff, &c. for selling contrary to this act. Sheriff, &c. returning no sale for want of bidders, how to proceed. Justices' execution to bind personal property only from its levy. 17. Sheriff or other officer may take bond for the forthcoming of property levied on. 18. Officer how to proceed upon such bond when broken. 19. Officer levying a justices' execu- 14. 16. Chap. XLV.] executions. 265 Section tion on land to give the defendant five days notice before court — Court to direct a notice where none has been given. 20. County court to settle the charges of officers for keeping horses, &c, taken in execution. 21. Officer to make out his account for keeping horses. &c. and to deliver the debtor a copy thereof, and re- turn the account with the execu- tion. Section 32. Purchaser under execution may sue the defendant in the execution, if there be a defect in the title to the thing sold. 23. A party, at whose suit any person rnay be charged in execution, may, after the death of such person in execution, have a new execution against the land and goods of the deceased. 1. Be it enacted by the General Assembly of the State ofJ^orth Carolina, and it is hereby enacted by the authority of the same, That the houses, lands, and other hereditaments, and real estate, Houses, lands ... . . 3.HCI otncr ncr- situate and being within this State, belonging to any person indebt- editaments ed, shall be liable to and chargeable with all iust debts, duties andP^y^'^^^™ . • 111 cxGcution. 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, extending, selhng or dis- posing of the same towards the satisfaction of such debts, duties and demands, as personal estates in this State are seized, extend- ed, sold or disposed of in satisfaction of debts. 2. All process of execution shall issue against lands and tene- All process of ments, as well as goods and chattels, and when any such execution g^g'^^^^^°|Jg'° ^^' shall come to the hands of the sheriff, he shall proceed to levy the lands and ten- same upon the goods and chattels of the defendant in the first arioods^anr^^ instance, if any there be ; but if to the best of his knowledge there chattels; be no such goods or chattels, or not sufficient to answer the plain- te°afe tobe^ ' tiff's demand, he shall execute the same upon the lands and tene- first taken. ments, 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 ; and when any sheriff shall have levied process upon lands and tenements in manner aforesaid, he shall not proceed to sell the same, until in the most public place in his county, he shall advertise the same at least forty days. 3. When a debt is recovered or acknowledged in any of said Sheriff may de- courts, or damages awarded, it shall be in the election of the ^'^^^^^^""^g'jf ^f plaintiff in the action to have a writ o{ fieri facias to the sheriff to the land of the levy the debt or damages of the lands and goods, or that the sheriff pi^^j^^^-j^°Jj|^-^ shall deliver to him all the chattels of the debtor (those excepted the debt or which are hereinafter exempted from execution) and the one half ^^^^^*^|^^,_^ of his land, until the debt or damages be levied, upon a reasonable extent or price. And if the plaintiff, after being so put into pos- session of the said land of the debtor, shall be dispossessed there- 1. 5 Geo. 2, c. 7, s. 4.— 1777, c. 115, s. 29. 2. 1777, c. 115, s. 29. 3. 13 Edw. 1, c. 18. VOL. I. 34 266 EXECUTIONS. [Chap. XLV. of, he shall have his action to recover possession thereof, and also to recover such damages as he may have sustained. Executions 4. It shall and raaj be lawful for any sheriff or other officer, to may be levied whom any writ or precept shall be directed at the suit of any per- "aiidsf&c.^eld soi^ o^ persons for or upon any judgment, to do, make or declare in trust for the execution unto the party in that behalf suing of all such goods and whom thl'^ex- chattels, lands, tenements, rents and other hereditaments, as any ecution issued, other person or persons be in any manner or wise seized or pos- sessed or hereafter shall be seized or possessed of in trust for him, her or them against whom execution shall be so issued, as the sheriff or other officer might or ought to have done, if the said party or parties, against whom execution hereafter shall be issued, had been seized or possessed of such goods and chattels, lands and tenements, rents or other hereditaments, of such estate as they be. seized or possessed of, in trust for him, her or them, at the time Purchaser un- Qf ^j^g g^^j^j execution sucd, wliich goods and chattels, lands and Q6r SUCil 6XGCU- ' ^'^^ ^^^'^^d on personal property, such property shall be itsy^^.^ '°"' bound by and from the levy of such execution, and not from the teste thereof. oSfmly'^'' ^\- ^^ ^y sheriff or other officer, who has levied an execution take bond for or Other process upon personal property, shall permit the same to iigKr^S^r'ty '®™f ' ^""'^^ ^^^ possessor thereof, it shall be lawful for such officer levied on. to take a bond for the forthcoming thereof to answer the said exe- cution or process, which bond shall be attested by at least one creditable witness ; but the said officer shall nevertheless remain hable as heretofore in all respects, to the plaintiff's claim. OfBcerhowto ^^' If the condition of any bond, given to any sheriff, coroner suTbonT" °^ constable for the forthcoming of any property seized or levied when broken. °" ^J execution or other process, be broken, it shall be lawful for such sheriff, coroner or constable, on giving ten days previous notice in writing, to the obligor or obhgors in such bond, to move for and obtain judgment against such obligor or obligors in a sum- mary manner, before the court of pleas and quarter sessions of the county in which such sheriff, coroner or constable may reside, for all such damages as said sheriff, coroner, or constable may have sustained or be judged liable to sustain, not exceeding the penalty of the bond so taken, which damages shall be ascertained by a jury to be empanelled for that purpose under the direction of the court before which such motion may be made. ?j5stice'sTx°" }^: Wben an officer shall hereafter levy an execution issued by ecution on land a justice of the peace on the land of the defendant, such officer 15. 1815, c. 887, S. 1. 16. 1828, c. 12, s. 1. 17. 1807, c. 731 s. 3.— 1828, c. 12, s. 2. 18. 1822, c. 1141, s 1. 19. 1828, c. 8, s. 6. .Chap. XLV.] executions. 269 shall serve the defendant with notice in writing, at least five to give the de- days before the terra to which the execution is returned, of the dal^j^notlcrbe- levy aforesaid, and of the term to which it will be returned ; and fore court. if it do not appear to the court, when an order of sale is prayed for, that such notice has been given, the said court shall order a ^°^^\ *° '^j''^^'^ notice to issue to the defendant, and shall not proceed to make none has been any order of sale, until such notice be served on the defend- gi^en. ant, at least five days previous to the term of said court : Provided always^ that upon affidavit made that such defendant has absconded, or conceals himself, or has removed out of the county, or is an inhabitant of another state so that the notice cannot be personally served, the court may order such notice as it shall deem reasonable to be given by a publication in some newspaper ; and may, upon proof of such publication, make the order of sale as though the notice had been actually given. 20. It shall be the duty of the several courts of pleas and quar- County court ter sessions, at the first term which shall be holden in their respec- ^° ^^^^'^ V'^^. ■ c 1 c 1 c T ■ 11 charges ot of- tive counties alter the nrst day oi January m each and every year, fleers for keep- to settle the charges of the aforesaid officers for keeping, watering "'? horses, &c. ■*■ , ^ tElKGn. Ill CXGCU- and feeding any horse, cattle, hogs or sheep, taken into their cus- tion. tody under legal process, and in case the court shall not have set- tled such charges, it shall be lawful for it at any time to fix such compensation as shall be just for the said officers to receive, for keep- ing and maintaining the property aforesaid and all other property the keeping of which may be chargeable to them, which compen- sation may be retained by said officers out of the sales of the pro- perty, in preference of the satisfaction of the process under which said property may have been seized. 21. Every officer claiming under the last section shall make out Officer to make his account, and if required, give the debtor, his agent or factor, for^keepins""^ a true copy thereof, signed by his own hand, and shall return the horses, &c. said account with the execution or other process, under which the ^]!^g jgi^^Qj!^^^'' property has been seized, to the justice or the court to whom the copy thereof, said execution or process is returnable, and shall then and there account^whh ^ also swear to the correctness of the several items therein set forth ; the execution, otherwise he shall not be permitted to make any recovery from the debtor. 22. Where any property, either real or personal, shall be sold Purchaser un- on any execution of fieri facias, venditioni exponas, or order of ^ay sug'J[,'g '^g. sale, issued from any court of law or equity in this State, or from fondant in the any justice of the peace, such justice having jurisdiction and au- therThe ade- thority to issue the same, by any officer lawfully authorized to f^^t in the title make such sale, and the sale be legally and bona fide made, and sold.'' ^ ^"^ such property so sold be not the proper goods and chattels, lands and tenements (as the case may be) of the person, against whose estate such execution, venditioni exponas, or order of sale may have issued, by reason of which the purchaser at such sale may have been deprived of the same property, or may have been 20. 1807. c. 731, s. 1. 21. 1807, c. 731, s. 2. 22. 1807, c. 723. 2T0 EXECUTIONS. [Chap. XLV. compelled to pay damages in lieu thereof to the real owner, then and in every such case it shall be lawful for such purchaser, his executors or administrators to sue such person, against whom such execution, venditioni exponas, or order of sale may have so issu- ed, or the person legally representing him, in an action on the case, in any court of law in this State, and recover such sum as he may have paid for such property, with interest thereon from the time of such payment : Provided always, that such property, if the same be personal property, be present at such sale, and actually delivered to such purchaser. A party, at 23. Parties at whose suit any person shall stand chai'ged in ex- personmayb^^^'^tjo" ^^^ any debt Or damages recovered, their executors or charged in ex- administrators may, after the death of the person so charged and 6cution m&v J ■ ■ '1 • • after the death "y'"g ^^ execution, havc new execution against the lands and ten- of such person ements, goods and chattels of the person so deceased, as they might JTaTC TneT'ex- ^ave had if such person had never been in execution : Provided, ecution^agamst that when a person shall so die in execution, nothing in this sec- goodrof'the tion shall give liberty to the plaintifF to have any new execution deceased. against any lands, tenements or hereditaments of such party dying in execution, which shall, after the said judgment, be by him bona fide sold for the payment of any of his creditors, and the money, which shall be paid for the lands so sold, either paid or secured to any of his creditors in discharge of their debts. 23. 21 James 1, c. 24, s. 2 and 3. A'ote. — References to Adjudged Cases. Sect. 1. Bell rs. Hill, 1 Hay. 72. State vs. Magnis, ib 99 Sect. 2. Osborne vs. Woodson, 1 Hay. 24. McCoy I's. Beard, 2 Hawks, 397. Wood w. Harrison, 1 Dev. and Bat. 356. Sect. 3. Jones vs. Edmonds, 3 Murph. 43. Sect. 4. Mcllvain vs. Carraway, N. C. Term R. 194. Morevs. McDuffie, 3 Hawks, 578. Brown rs. Graves, 4 Hawks, 342. Mordecai vs. Parker, 3 Dev. 425. Harrison vs. Battle, 1 Dev. Eq. 537. Sect 5. Camp vs. Cox, 1 Dev. and Rat. 52. Sect. 8. Erwin vs. Sloan, 2 Dev. 349. Sect. 16. McCarson vs. Richardson, 1 Dev. and Bat. 561. Sect. 17. Grey ds Bowles, 1 Dev. and Bat. 437. Sect. 22. Saunders vs. Saunders, 2 Dev. 193. Chap. XL VI.] executors and administrators. 271 CHAPTER 46. EXECUTORS AND ADMINISTRA- TORS. an act concerning executors and administrators. Section 1. County courts shall grant letters testamentary and of administration. 2. To whom administration shall be granted. 3. Executors and administrators to take an oath, and administrators to give bond — Form of the condition. 4. Special administrations may, in cer- tain cases, be granted by three jus- tices. 5. Courts of equity may. in certain cases, grant special administra- tion. 6. Executors residing out of the State to give bond and security within one year. 7. A man residing out of the State, or about to remove, marrying an ex- ecutrix, may be compelled to give bond and security. 8. Penalty for administering before let- ters granted. 9. Bonds, how payable, and remedy on them. 10. Inventory to be returned. 11. When and how an executor or ad- ministrator may sell the personal property. 12. The preceding section not to affect powers under a will. 13. When administration granted to highest creditor, sheriff to sell. Sales, &c. to be at public auction, and between eleven and four o'clock — Penalty for selling otherwise — Proviso as to executors. Dignity of debts- Executors and administrators to ad- vertise within two months. 17. How the advertisements may be proved . 18. Executors and administrators to pay over at the end of two years — Re- funding bonds to be given — Reme- dy of creditors on such bonds. 19. Bonds and descnptive lists of pro- perty to be filed among the records of the county court — When and 14. 15. 16. Section how the creditors may have scire , facias on such bonds. 20. Estates remaining seven years un- claimed, to be paid over to trustees of the university. 21. No debt to be discharged by naming a person executor. 22. Estates for life of another and estates of cestui/ que trust to be assets. 23. Executors and administrators to have nine months to plead. 24. Same privileges in warrants before justices. 25. Warrants to be returned to court when an executor or administrator pleads no assets— Costs in such cases. 26. No lien created by the commence- ment of a suit. Heirs or devisees may contest the plea of no assets — Proceedings thereon. Deeds for lands, contracted to be sold by deceased, may be made by exe- cutors and administrators. Commissions to executors and ad- ministrators to be allowed by the county courts. Relief for securities of executors and administrators in the county courts 31. Power of the superior court in such cases. 32. Publication may be made in such cases. 33. In what cases executors of executors shall have actions. When some executors refuse, those accepting the trust may sell lands according to the will. Who chargeable as executor da son tort. Executors or administrators of exec- utors or administrators liable for a devastavit. When right of action shall survive to executors and administrators, and executors of executors. 27. 28. 29. 30. 34. 36. 37. /fr-^t. J . al y/- /^^y/- (J^ /. - SUl n-e^ 2^X73" 272 EXECUTORS AND ADMINISTRATORS. [ChAP. XLVI. County courts shall grant let- ters testament- ary and of ad- ministration. To whom ad- ministration shall be grant- ed. Executors and administrators to take an oath, and adminis- trators to give bond. Form of the condition. 1. Be it enacted by the General Assembly of the State o/JYorth Carolina, and it is hereby enacted by the authority of the same. That all letters testamentary and letters of administration shall be granted in the cornet of pleas and quarter sessions of the county, where the testator or intestate had his usual residence at the time of his death, or, where the deceased had fixed places of residence in more than one county, then in either ; and all letters testa- mentary and letters of administration shall be signed and issued by the clerk of said court. 2. When any person shall die intestate, or having made a will and the executor shall refuse to prove the same or qualify as such, administration shall be granted to the widow, and after her to the next of kin, or to both, at the discretion of the court, upon their complying with the requirements of this act ; and upon failure of. the widow and next of kin to make application or to procure the same, then to the highest creditor residing within the State, prov- ing his debt upon oath before the court granting the same ; and when divers persons, claiming the administration, are in equal degree, the court shall be at liberty to grant the administration to any one or more ; and in case of the failure of any of the persons aforesaid to apply for the same, or if the person applying shall be deemed incompetent, then the court may grant administration to any discreet person. 3. No clerk shall issue any letters testamentary, until the exec- utor or executrix hath been duly qualified in open court, by taking the oath of an executor to execute the will of the deceased ; nor letters of administration, until the administrator or administratrix hath in like manner been duly qualified by taking the oath of an administrator, and hath also given sufficient bond with two or more able sureties, to be judged of and taken before the justices holding the court, the penalty of which bond shall be double the supposed amount of the personal estate of the intestate, and the condition in form following : The condition of this obligation is such that if the above bounden A. B., administrator of all and singular the goods and chattels, rights and credits of C. D., deceased, do make or cause to be made a true and perfect inventory, and account of sales, of all and singular the goods and chattels, rights and credits of the said deceased, which have or shall come to the hands, possession or knowledge of him, the said A. B., or into the hands or possession of any other person or persons for him, and the same so made do exhibit, or cause to be exhibited, into the office of the court, where order for administration passed, within ninety days after the date of these presents, and the same goods, chattels and credits, and all other the goods, chattels and credits of the said deceased, at the time of his death, or which at any time after shall come to the hands or possession of the said A. B., or into the hands or pos- session of any other person or persons for him, do well and truly 1. 1777, c. Uo, s. 57.— 1789, c. 308, s. 1. 2. 1715, c. 10. s. 6.— 1792, c. 364, s. 1.— 31 Edw. 3, c. 11.— 21 Hen. 8. c. 5, s. 3, 4. 3. 1715, c. 10, s. 5.- 1791, c. 341, s. l-— 1805, c. 667 — 22 and 23 Charles 2, c. 10, s. 1. Chap. XL VI.] executors and administrators. 273 administer according to law, and further do make or cause to be made a true and just account of his said administration within two years after the date of these presents, and all the rest and residue of the said goods, chattels and credits, which shall be found remain- ing upon the said administrator's account, the same being first examined and allowed of by the court, shall deliver and pay unto such person or persons respectively, as the same shall be due unto, pursuant to the true intent and meaning of this act, and if it r shall appear that any last will and testament was made by the deceased, and the executor or executors therein named do exhibit the same into court, making request to have it allowed and ap- proved accordingly, if the said A. B., above bound, being there- unto required, do render and deliver the said letters of adminis- tration (probate of such testament being first had and made) in the said court, then this obligation to be void and of no efl'ect : or else to remain in full force and virtue ; which bonds are hereby enacted and declared to be good to all intents and purposes, and pleadable in any courts of justice. 4. Where any person shall die intestate, and his or her estate Special admin- is in such situation as to require the immediate care of some Jis- ?^^''^^^°^^ '"^J' -,T,■,■,'■r•^c 1 • • CI n^ certain cases Greet person, it shall be lawiul tor any three justices oi the peace be granted by of the county, in which the deceased had his or her last usual ^^^^^^ justices. place of residence, to meet together at the clerk's office of the said county, and to grant to some discreet person special letters of administration on the estate of the said deceased, authorizing and v empowering said person to collect and take into his or her pos- session the estate of the said deceased, until the next ensuing court of pleas and quarter sessions of said county, and to expose to public sale, upon a credit of not more than twelve nor less than six months, so much of the crop, stock and provisions on hand as ttie said three justices may deem advisable, and a schedule of such stock, crop and provisions, so directed to be sold, shall be made out by the said three justices, and a copy thereof, signed by them, shall be filed with the clerk of the said county ; and the said jus- tices, before granting letters of administration as aforesaid, shall require and take from the person, to whom the same shall be granted, bond with approved security in such sura as the said three justices shall order and direct, conditioned for his faithful admJnis- tration of the said estate until the next ensuing court of pleas and quarter sessions of the said county, and for his or her faithfully accounting for and delivering over the said estate to such person or persons as the said court may appoint as administrator of the said estate, and the said bond shall be filed with the clerk of the said county court for safe keeping ; and the said county court shall proceed to grant general letters of administration to such person or persons as are or may be legally entitled to the same. 5. When any person shall die intestate, leaving mortgaged per- Coiirts of sonal estate, and there shall be no administration granted upon the certafnTases'^ estate of such deceased person, then and in that case the court of S"",^"? special administration. 4. 1816, C. 913. 5. 1828, c. 35. VOL. I. 35 274 EXECUTORS AND ADMINISTRATORS. [ChAP. XL VI. equity for the county, where the mortgagee resides, shall have authority to appoint some proper person a special administrator of such intestate, to the end that such mortgage may be foreclosed or a decree obtained for the sale of the property mortgaged. ^dhi"outof' ^* ^hen a testator or testatrix shall appoint any person, resid- the Smte, to ing out of this State, executor or executrix of his or her last will securitTwhWn ^^^^ testament it shall be the duty of the court of pleas and quarter one year, sessions, before which the said will shall be offered for probate, to cause the executor or executrix named therein, to enter into bond with good and sufficient security for his or her faithful administration of the estate of the said testator or testatrix, and for the distribu- tion thereof in the manner prescribed by law ; the penalty of said bond shall be double the supposed amount of the personal estate of the said testator or testatrix ; and until the said executor or execu- trix shall enter into such bond, he or she shall have no power nor authority to intermeddle with the estate of the said testator or tes- tatrix, and the court of the county, in which the testator or tes- tatrix had his or her last usual place of residence, shall proceed to grant letters of administration with the will annexed, which shall continue in force until the said executor or executrix shall enter into bond as aforesaid. Provided nevertheless, and it is hereby declared, that the said executor or executrix shall enter into bond as by this act directed within the space of one year after the death of the said testator or testatrix, and not afterwards. A man resid- 7. In all cases where a man, residing out of the State, shall Stlte"or about ™^''^7 ^ woman who is appointed an executrix to the estate of any to remove, deceased person, or where a man shall marry such an executrix, Secutril ^ma ™^ ^^ about to remove or make away with the estate of the testa- be compelled to tor, to the injury of the creditors or representatives, it shall be the securit°v ^^^ ^"^^^ °^ ^"*^^ man, so marrying such executrix, upon being so required by the court of pleas and quarter sessions of the county where the executrix resides, to give bond with sufficient security for the faithful administration of the estate, as is required by law in cases of administration on the estate of deceased persons, and there shall be the same remedy upon such bond given to the party aggrieved, as upon the bond of an administrator in like cases, and if said man so marrying an executrix, shall, upon due notice from the county courts, refuse or neglect to give such bond, the said courts respectively shall and may order and decree that the power and authority of said executor in right of his wife, and of such executrix as aforesaid, be null ; and thenceforth all the power and authority of such executor and his wife shall cease, and the said courts may then grant letters of administration with the will annexed or otherwise, as the case may require, to such person or persons as they may deem meet. Penalty for ad- g. No person shall enter upon the administration of any deceased fore'letterf ^' person's estate, mitil they have obtained letters of administration, granted. under the penalty of one hundred dollars, one half to the informer and the other half to the State. Providedy that nothing contained 6. 1807, C. 730, s. 1.— 1813, C. 855. 7. IffOrjC. 730, S. 1,2. 8. 1715, c. 10, 8. 4.— 1795, c. 469.— 1816, c 913. f Chap. XLVl.] executors and administrators. 275 ' in this or the preceding sections shall prevent the family of the deceased from using so much of the crop, stock and provisions . of the deceased as may be necessary until the granting of a gen- eral or special administration. Provided further, that such right ! to use the stock, crop and provisions shall not extend farther, than to the end of the next succeeding court of pleas and quarter ses- i sions of the county, where the intestate died. 9. All bonds, given by any executor or administrator by virtue ^°"'^^,' ^°"™, I of this act, shall be made payable to the State of North Carolina, remedy 'on i and any person or persons or body politic or corporate injured '^^^'^• may and shall commence and prosecute a suit or suits on said i bonds, in the name of the said State, against the said obligor or ' obligors in said bonds and their securities and against the heirs, [ executors and administrators of each and every of them, and of '' each and every one of their securities, and shall and may recover all damages which he, she, they or it may have sustained by reason ' of the breach of the conditions of said bonds or any of them. 10. Every executor or administrator shall, at the term of the ^"^®"*«*ry *° ^* . .... rGtviriicd. court of pleas and quarter sessions next succeeding his qualification as executor or executrix, administrator or administratrix, return to the said court on oath a just, true and perfect inventory of all the goods and chattels of the deceased, which have come to his hands or the hands of any other person for him, which inventory shall be signed by the person returning the same, and shall be recorded by the clerk of the said court. 1 1 . When the estate of any person deceased shall be so far When and how indebted, as that the debts cannot be discharged by the moneys on admfnistrator' hand at the death of the testator, or by the sale of the perishable may sell the commodities, or when a sale shall be deemed necessary for a just eny°°^ ^^°^' and proper distribution or division of such personal estate, then it is and shall be the duty of every executor or administrator to sell and dispose of the goods and chattels of his or her testator or tes- tatrix or intestate, first obtaining an order of the court of the county for that purpose, for the most that may be gotten for the same by public sale, having first advertised the same at the court house and four other pubhc places within the county, at least twenty days before the sale, and shall, for enhancing the price thereof, give not less than six months credit upon bond and security given ; and such executor or administrator shall, after the time of such payment is passed, take and pursue all lawful ways and means ,^^' to recover and receive the money so due as aforesaid, or otherwise shall be chargeable and answerable for the same ; and such moneys, when received, shall be liable for the satisfaction of judgments pre- viously obtained and entered up as judgments when assets shoidd come to the hands of the executor or administrator. 12. Nothing in the preceding section shall be construed to affect section^not to the powers, trusts or authorities of an executor or executrix., de- ^^^^^^ P""^"** rived from the will of his or her testator or testatrix. 9. 1715, c. 10, s. 5.— 1791, c. 341, s. 1.— 1833, c. 17. 10. 1723, c. 15, s. 2.— 1793, c. 391, s. 2. 11. 1723, c. 15, s. 2 and 3.— 1794, c. 415, s. 1. 12. 1794, c. 416, S. 2. 276 When adminis- tration granted to highest cred- itor, sheriff to sell. Sales, &c. to be at public auc- tion, and be- tween 1 1 and 4 o'clock. Penalty for selling other- wise. Proviso as to executors. Dignity of debts. Executors and administrators to advertise within two months. How the ad- vertisements may be proved. EXECUTORS AND ADMINISTRATORS. [ChAP. XLVI. 13. Where administration is granted to the highest creditor of the deceased, then and in that case the sale shall be made and conducted by the sheriff of the county, under the same rules and regulations as prescribed for executors and administrators. 14. Alfsales and renting and hiring of the property, both real and personal, of deceased persons, shall be made and done by way of public vendue or auction, and no such sale or renting or hiring shall commence before eleven o'clock in the morning, or after four o'clock in the evening, of the day on which such sale or auction or renting or hiring is to be made ; and any sheriff, executor or administrator, who shall make any sale or renting or hiring contrary to the true intent and meaning of this section, shall forfeit and pay the sum of two hundred dollars, to be recovered by any person suing for the same in any court of record within this State. Pro- vided, that nothing herein contained shall be construed to extend in any manner to executors, in cases where discretionary powers are vested in them by the will of their testator. 15. Executors and administrators, in the payment of the debts of their testators and intestates, shall hereafter hold and consider debts due upon bills, bonds and promissory notes, whether with or without seal, and all settled and liquidated accounts, signed by the debtor, as of equal dignity, and shall pay the same accordingly : Provided always, that executors and administrators shall in all other respects, except as aforesaid, have the same right of prefer- ence in the payment of creditors which they have heretofore had and held. 16. Every executor and administrator shall, within two months after being quahfied as executor or administrator, advertise at the court house of the county, where the deceased usually dwelt at the time of his death, and other public places in said county, for all persons to bring their accounts and demands of every kind and denomination to the said executor or administrator within the time prescribed by law. 17. Every executor and administrator shall take a copy or copies of the advertisements he shall put up, or cause to be put up, in pursuance of this act, which copy or copies, with an affidavit made thereon before some justice of the peace of the county in which advertisements are herein directed to be made, by some competent witness, stating therein the time and times, and place and places, when and where the said, advertisements were seen, shall, at the term of the court next follo^-ing that in which any last will and testament shall have been admitted to probate, or any ad- ministration shall have been granted, be filed in the office of the clerk of said court ; and the said copy or copies, attested as afore- said, shall be considered as a record of said court, and the same, with a certificate of the clerk thereon, certifying that the said copy or copies was or were filed at the time herein required, shall be 13 1793, c. 391, s. 1. 14. 1794, c. 413, s. 1,2. 15. 1786. c. 248, s 2. 16. 1789,0. 308, s. 6. 17. 1804, c. 666. . ' ( Chap. XLVL] executors and administrators. 277 I ) received as evidence in any court of law or equity, or before any ' jurisdiction in this State : Provided always, that nothing herein contained shall be so construed as to preclude any executor or administrator from proving his compliance with the requisites of ' the sixteenth section of this act, in any other manner which may be deemed competent by the court before whom the evidence may be offered. 18. No executor or administrator shall take, hold or retain in Executors and ' , . , , n ^ 1 11 1 1 • administrators his hands more oi the deceased s estate than amounts to his ne- to pay over at cessary charges and disbursements, and such debts as he shain'^^®'^'^"^ '■"^^ legally pay within two years after administration granted : but all such estate so remaining shall, immediately after the expiration of two years, be divided, dehvered and paid over to such person or persons to whom the same may be due by law or the will of the J J 1 ^*u r *i • • Refundins bond deceased, such person or persons, or some other lor them, giving ^o be given. bond with two or more able sureties, that if any debt, truly owing by the deceased, shall be afterwards sued for and recovered, or otherwise duly made appear, that then and in every such case he or they shall respectively refund and pay each his or her ratable part of that debt or debts, out of the part or share so as aforesaid al- lotted to him or her, and such bond so taken shall be made payable to the State of North Carolina, which said bond shall be and enure to the sole use and advantage of the creditors, and such creditor Remedy of or credhors shall and may have a scire facias in manner hereinafter '^''*"ii*^^®°'i ■ sucii Donds directed against the obligors in the said bond, as if the said bond' had been drawn and dehvered to such creditor or creditors. 19. The bonds, so taken by executors and administrators from Bonds and legatees or persons entitled to distributive shares of the estate of^jg^g^^^p^.^ an intestate, shall by such executor or administrator be brought ty to be filed into court, at the next succeeding term after such bonds are so ta- c^ds^of the^ ken, together with a descriptive hst of the property so dehvered county court. by them to the legatees or persons entitled to receive the same, and a record shall be made of said bonds and said descriptive list, and the said bonds shall then be lodged in the office of said court with the records of the same ; and in all suits, where the executors when and how or administrators of any deceased person shall plead fully adminis- ||^av%^ave°a^ tered, no assets or not sufficient assets to satisfy the plaintiff's de- sdre fadas on mand, and such plea shall be found in favor of the defendant, the ®"*^^ *^°'^'^^" plaintiff may proceed to ascertain his demand and sign judgment, and on motion a writ or writs of scire facias shall and may issue, summoning such persons, who have entered into bond as aforesaid, to shew cause why execution shall not issue against them for the amount of such judgment, and if there shall be judgment against the defendant or defendants to the scire facias or any of them, ex- ecution shall and may issue thereon against the proper goods and chattels, lands and tenements of such defendant or defendants. 20. All sums of money or other estate of whatever kind, which ^^^.'^t^^'^- , ,, . 1111 r • • 1 1 1 mairimg seven snah now remain or shall herealter remain in the hands or posses- years unclaim- IS. 1789, c. 308, s. 2. 19. 1789, c. 308, s. 4.— 1791, c. 351, s. 5. 20. 1784, c. 205, s. 2.— 1309, c. 763, s. 1. 278 EXECUTORS AND ADMINISTRATORS. [ChAP. XL VI. ed, to be paid sioii of any executor or administrator for seven years after his over to trustees t^.- , ,.. •' over to trustees of the univer sity. qualification as such executor or administrator, unrecovered or unclaimed by suit by the creditors, legatees, next of kin or widow of his testator or intestate, shall by the said executor or administrator be paid over to the trustees of the university of North Carolina. No debt to be 21. The naming or appointing any person executor shall not be na^i^iy^peJ- Considered a discharge of any debt or demand due from the person, son executor. SO named as executor, to the testator. Estates for life 22. If any person shall die seized of an estate in lands, tene- ot another and ^ i i- r i t^ <• , . , ' estates of ces- ments or hereditaments tor the life of another, and shall not by iolealsItT^ last will have devised the same, and the said estate shall not have come to the heir or heirs at law of the tenant for life by special occupancy, then the said estate shall vest in the executors or ad- ministrators of the said tenant for life ; and if any cestuy que trust shall die leaving any equitable interest in any estate real or person- al, which shall come to his executors or administrators, every such estate in lands, tenements and hereditaments for the life of another, and every such equitable interest, shall be deemed personal assets in the hands of said executors and administrators for the benefit of the creditors, legatees and distributees. Executors and 23. No executor or administrator shall be bound or compelled SavfnTnr ^° P^^^^. ^^.^^y Original suit, brought against him in any court, until months to the expiration of nine calendar months from and after his taking upon himself the office of executor or administrator. 24. When an executor or administrator shall be warranted for plead. Same privilege in warrants ' fore justices m warran s e- ^^^^ demand against his testator or intestate, before the expiration Warrant to be returned to court when an executor or administrator pleads no as- sets. of nine calendar months as aforesaid, it shall be the duty of the magistrate, before whom said warrant shall be returned, to post- pone, by an endorsement on the back of the warrant, the trial thereof to some day after the expiration of said time, on which day it may be tried. 25. When any executor or administrator shall be warranted and be desirous to avail himself of his want of assets, it shall be his duty on the trial to suggest the same to the magistrate, who shall thereupon endorse the same on the warrant, and if he find the plaintiff's claim to be just he may give a judgment therefor, and shall return the warrant with such endorsement and judgment to the first term of the court of pleas and quarter sessions of his county, when the defendant may plead any plea relative to his assets, which could be pleaded had the suit been instituted returnable to said Costs in such term : and in all cases so returned, the same costs shall be allowed ^^^^- as in cases of appeals from justices. by*'commence^- ^6. No hen on the goods of a deceased person shall be created meat of a suit, by the Commencement of a suit or the service of a writ on his executor or administrator, but the executor or administrator shall 21. 1794, c. 41.5, s. 3. 22. 1812, c. 830, s. 1.— 1813, c. 983, s. 2. 23. 1828, c. 8, s. 4. 24. 1828, c. 8,s. 1. 25. 1828, c. 8, s. 2 and 3. 20. 1823, c. 8, s. 9. Chap. XLVI.] executors and administrators. 279 be at liberty to sell the goods of his testator or intestate, as if such writ had not been served on him or such suit commenced. 27. When any executor or administrator shall plead fully admin- jjg-j.g ^j. ^gl- istered, no assets or not sufficient to pay the plaintiff's debt, not- sees may con- withstanding that such plea should be found in favor of the defend- no^asle'ts^ ^^ ant or defendants on the trial of the issue, the heirs or devisees shall be permitted to contest the truth thereof, and upon the plea Proceedings of such heirs or devisees, that the executors or administrators have '"'^°'^" sufficient assets or have wasted or concealed the same, the court shall order the trial of a collateral issue between the executors or administrators and such heirs or devisees, which if found against the executors or administrators, the original plaintiff shall have exe- cution, not only against the goods and chattels of the deceased debtor, but against the proper goods, chattels, lands and tenements of such executors or administrators ; and the said collateral issue shall be tried at or before the next term thereafter of the court, when the same shall be ordered, unless, on a sufficient cause shown to the court, further time shall be given. 28. The executors or administrators of any deceased person Deeds for lands, are fully authorized and empowered to execute a deed or deeds of ^""g^j^^^^^ ^°_ conveyance for any lands, that may have been bonajide sold by the ceased, may be deceased, and for which he has given to the purchaser a bond or Jj^^^^^ ^^^^'^^If ' bonds to convey the same: Provided, said bond or bonds be first minisuators. proved in the court of the county, where the said lands are situated, if in this State ; if not, the bonds to be proved in the county, where the obligee lives or obligor died, and which bond so proved shall be recorded and registered in the register's books of said county : And provided, the deeds thus executed shall not convey other or a greater quantity of land, or higher titles, than were spe- cified in said bonds : And all deeds thus executed shall be as good and valid in law as the same would have been, if executed by the original obligors : Jlnd provided also, that no executor or adminis- trator shall be authorized under this section to execute titles, pre- vious to the full payment of all the purchase moneys due for said lands, if the bond of performance specifies that the purchase mo- neys were to be paid before the titles should be made. 29. The several courts of pleas and quarter sessions of this Commissions State are hereby authorized and directed, in making allowances of ^°^^j[^Jj^j°'jg_ commissions to executors and administrators, to take into conside- trators to be ration the trouble and time expended in the management of any g^,°,^^,g^Jj.[^® deceased person's estate, and shall make an allowance of commis- sions, not exceeding five per centum for the amount of the receipts and expenditures, which shall appear to be fairly made in the man- agement of any such deceased person's estate, and any allowance made shall be held and deemed a proper and fair charge against the assets in the hands of any such executor or administrator, and he, she or they shall and may retain for the same, as well against any creditor of the deceased as against persons claiming as legatees, 27. 1734,0. 226, s. 5.— 1810, e. 792. 2S. 1767,0.473. 29 1790, C. 536, s. 2. 280 EXECUTORS AND ADMINISTRATORS. [ChAP XLVI. Relief for secu rities ofexecu tors and admin- istrators in the county courts. Power of the superior court in such cases. Publication may be made in such cases. In what cases executors of executors shall have ac- tions. or as being entitled to distributive shares of such deceased person's estate : Provided, that nothing herein contained shall be construed to prevent any executor or administrator from retaining for neces- sary charges and disbursements, in the same manner as hath here- tofore been allowed by law. 30. In all cases wherein any person has heretofore, or may hereafter become bound as security for any person as administrator or executor, and shall conceive himself in danger of becoming lia- ble by reason thereof, it shall and may be lawful for the county court, wherein said person so became bound, upon the petition of the party, supported by oath or affidavit, to them exhibited, forth- with to order a summons to issue against the party or parties with and for whom the petitioner or petitioners stand bound, return- able to the next term of the said court, and thereupon compel such party or parties to give other sufficient or counter security to be approved by said court, or to deliver up the estate to said peti- tioners or to such other person as the court shall direct, and they may and they are hereby authorized and empowered to make such other order or rule thereon, for the rehef of the petitioners and better securing such estate, as to them shall seem just and equitable. Provided always, that any person appointed to the management of any estate in the room of any executor or administrator, removed by virtue of this section, shall be accountable to creditors and oth- ers interested in the estate to the extent of the assets received, in like manner as executors and administrators by law are liable. 31. The same relief shall and may be had by petition in the superior court of law. And where the petition shall be in a superior court, it shall be in the power of any judge of said court, either in or out of court, on the petition exhibited therein and containing such allegations, verified by affidavit, as to him shall seem sufficient, to make from time to time such orders as may be necessary to preserve the estate of the testator or intestate, in pos- session or in action, until the hearing of the petition, and to direct such special writ or writs to issue as may be necessary to carry such orders into effect : Provided, that before any such special writ or writs shall issue the petitioner shall perform such terms as said judge shall prescribe, and as justice and equity shall require, by giving security or otherwise. 32. In case it should appear to the court that the summons, directed in the thirtieth section of this act to issue, cannot be per- sonally served on the executor or executors, administrator or ad- ministrators, residing out of the State, it shall and may be lawful for said court to order pubhcation to be made by advertisement in some newspaper for such time as the said coiurt may think proper. 33. Executors of executors shall have actions of debt, account, and for goods of the first testator carried away, in the same manner as the first testator should have had, and they shall answer to others 30. 1822,0. 1137.-1826,0.23. 3U 1822,0. 1137, S. 2. 32. 1822, 0. 1137, s. 3. 33. 25 Edw. 3, Stat. 5, c. 5. Chap. XL VI.] executors and administrators. 281 : for as much as they may have recovered of the goods of the first testator, or ought or might have done, as the first executors should do. 34. Where part of the executors of any person, making a will "^^^n some ex- of lands to be sold by his executors, refuse to take upon them the those accepting ; administration, all bargains and sales, made by them only of the ^^^ trust may f executors that accept such administration, shall be as effectual, as cording to the i if all the executors named in the will had joined in making the bar- ^^'1- I gain and sale. And when all the executors so appointed die, or t refuse to take on them the administration, the administrator with 1 the will annexed shall have full power to sell said lands so devised, . and all bargains and sales, so made by such administrators with the will annexed, shall be as effectual as if made by said executors. j 35. Every person who shall receive goods or debts of any per- \ son dying intestate, or any release of any debt due the intestate, able as execu- upon a fraudulent intent, or without such valuable consideration tor de son tort. as shall amount to the value or thereabout, except it be in the sat- i isfaction of some debt, shall be chargeable as executor of his own ' wrong, so far as such debts and goods, coming to his hands, or 1 whereof he is released, will satisfy, deducting all just debts owing to him by the intestate, and all other payments made by him. 36. The executors and administrators of persons who, as right- Executors or I /• 1 , ^ • *i ■ J • • . J administrators I lul executors, or executors m their own wrong, or as admmistrators, ^f executors shall waste or convert to their use any estate or assets of any per- or administra- son deceased, shall be chargeable in the same manner as ihe'^Y ^^^astavit.°^ testator or intestate might have been. [ 37. Executors and administrators, and executors of executors, When right of shall have actions in like manner as the first testator or intestate survive^ to ex- 1 might have had, for the goods taken or converted, and for arrear- ecjiiprs and ad- : ages of rent due the first testator or intestate, however due and ow- and'executors i ing, and for injuries done to the property of said intestate or first "f executors. testator, either real or personal, where such detainer or conversion ; happened, or such injury was sustained, or such rent due, in the ' lifetime of the said intestate or first testator, aiid when such de- 1 tainer, or conversion, or injury sustained or rent due, had not been satisfied against the person or persons so detaining or converting such goods, or committing such injuries, or from whom the rent may be due and owing, their and each of their executors, adminis- I trators and heirs. 34. 21 Hen. 8, c. 4, s. 1. 35. 43 Eliz. c. 8, s. 2. 36. 30 Ch. 2, c. 7, s. 2.-4 and 5 W. and M. c. 24, s. 12. 37. 4 Edw. 3, c 5.-25 Edw. 3, c. 7.— 21 Hen. S, c. 4, s. I. Note. — References to Adjudged Cases. Sect. 1. Ledbetter «s. Loftin, 1 Murph. 224. Collins w. Turner, N. C. Term R. ,1 105. Sect. 2. Ritchie vs. McAuslan, 1 Hay. 220. Carthew vs. W^ebb, 2 Murph. 268. Sect. 9. Chairman vs. Moore, 2 Murph. 22. Sect. 10. Anon. 1 Hay. 481. Sect. 15. Hubhel vs. Thurston, 4 Dev. 502. Sect. 16. Blount rs. Porterfield, 2 Hay. 161. VOL. I. 36 282 FAIRS. [Chap. XLVIL Sect. 18. Cheatham rs. Boykin, N. C. Term R. 238. Mayo vs. Mayo, 2 Hawks, 329. Ralston vs. Telfair, 2 Dev. Eq. 255. Sect. 19. Cheatham vs. Boykin, 2 Murph. 301. Sect. 29. Shaw vs. Shaw, Tayl. 125. Bond vs. Turner, 2 Mnrph. 331. Potter rs. Stone, 2 Hawks, 30. Hodges vs. Armstrong, 3 Dev. 253. Clark vs. Blount, 2 Dev. Eq. 51. Sect. 34. Miller vs. White, Ta3'l. 309. Marr vs. Pray, 2 Murph. 84. Wood r-s. Sparks, 1 Dev. and Bat. 389. Sect. 35. Norfleet vs. Reddick, 3 Dev. 221. Barnard vs. Gregory, 3 Dev. 223. CHAPTER 47. FAIRS. AN ACT TO EMPOWER THE SEVERAL COUNTY COURTS TO ESTAB- LISH FAIRS IN THEIR RESPECTIVE COUNTIES. Section 1 . County Courts may appoint fairs. 2. Commissioners to be appointed, who may regulate fairs. Section 3. Inhabitants to have free liberty of the fairs. County courts may appoint fairs. who may reg- ulate the fairs. 1. 3e. it enacted by the General Assembly of the State of J^ortk Carolina, and it is hereby enacted by the authority of the samCy That it shall and may be lawful for the several county courts, a majority of the acting justices of the county being present, to ap- point a fair or fairs in their respective counties, at such place or places as they may judge most proper for the convenience of the inhabitants, so as to afford an opportunity and give encouragement to industry, by collecting the inhabitants for the purpose of ex- changing, bartering and selling all such articles as they may vi^ish or be necessitated to dispose of. Commissioners ^" ^^^^^ ^ny of the said courts may think proper to estabhsh a to be appointed, fair, they shall nominate and appoint commissioners, a majority of whom shall in all cases be a quorum sufficient to act, to regulate and conduct the same, by drawing up and forming a system of by- laws for the government thereof, to be approved by said court and entered of record ; which rules so formed as aforesaid shall be considered as valid and as effectual as if they had been expressed by an act of assembly for that special purpose. Provided never- theless, that said rules shall not be contrary to or inconsistent with the law of the land. 3. The inhabitants of any county, wherein any fairs shall be established, shall have free liberty and power to attend the same, dispose of, exchange or barter any article or articles whatsoever therein, without any restraint or distinction whatever ; subject nevertheless to such rules as the commissioners aforesaid, or a majority of them, shall or may form for the regulation thereof. 1. 1794, c. 421, s. 1 and 4. 2. 1794, c. 421, s. 2 and 4. 3. 1794, C. 421, s. 3. Inhabitants to have free lib- erty of the fairs. Chap. XLVIIL] FENCES. CHAPTER 48. 283 FENCES. AN ACT CONCERNING FENCES. Section 1. Ever J' planter shall keep a sufficient fence around his cleared ground un- der cultivation. 2. Damages done by stock when fence is sufficient, how ascertained and recovered. 3. Injuries done to stock by persons not having a legal fence, how^ ascer- tained and recovered. Section 4. Either party dissatisfied may appeal — Proceedings thereon. 5. Either party may summon witnesses. 6. Penalty on slaves for killing stock contrary to the provisions of this act — Master or overseer to pay the damages sustained. 1. BF.it enacted by the General Assembly of the State of JVbrth Carolina, and it is hereby enacted by the authority of the same, That every planter shall make a sufficient fence about his cleared Every planter ground, under cultivation, at least five feet high, unless where sufficicnt^ence there shall be some navigable stream or deep water course that ^r^"""] ^^^ may be deemed sufficient instead of a fence as aforesaid. Provid- under cuWva- ed, that the northwest branch of Cape Fear river, bordering on ^^°'^- the county of Brunswick, shall not be considered such a water course, and all persons cultivating lands on the northeast side of the said northwest branch of Cape Fear river, and neglecting to inclose the same with a sufficient and lawful fence, shall, for every crop so attempted to be made, forfeit and pay one hundred dollars, one half to the poor of the county and the other half to the person suing for the same, to be recovered by action of debt before any jurisdiction having cognizance thereof. 2. Upon complaint made by any person to a justice of the peace Damages done of any county, of any trespass or damage done by horses, mules !?5' ®'°?^ ^^" or other stock upon his inclosed grounds, such justice is authorized cient, how as- and required to issue a summons, directed to any lawful officer of^^'''^'"®'i^°'i his county, commanding him to make known to the owner of such horses, mules, or other stock, of such complaint and the time of trial, and also to summon two freeholders, unconnected with either of the parties, to appear before him, who after being sworn by the said justice, together with himself, shall view and examine whether the complainant's fence be a good and sufficient fence as prescrib- ed in the first section, and if it shall appear that the complainant's fence be good and sufficient as aforesaid, to ascertain and assess what damages he has sustained by means of the trespass aforesaid, and certify the same under their hands and seals ; and if the own- 1. 1777, c. 121, 8. 2 — 1791, c. 334, s. 1. 2. 1831, C. 2, S. 1.— 1777, c. 121, 8. 3. 284 Injuries done to stock by E arsons not aving a legal fence, how as- certained and recovered. Either party dissatisfied may appeal. Proceedings thereon. Either party may summon witnesses. Penalty on slaves for kill- ing stock con- trary to the provisions of this act. Master or over- seer to pay the damages sus- tained. FENCES. [Chap. XLVIII. er of such horses, mules or other stock shall not make full satis- iaction to the party injured, it shall be the duty of the justice of the peace aforesaid to enter judgment against him for the same and issue execution forthwith, unless the defendant stay the same, which he shall have leave to do as in other cases. 3. If any person shall, with guns, dogs or otherwise, unreason- ably chase, worry, maim or kill any horses, mules or other stock, or cause the same to be done, when trespassing upon his inclosed grounds, where his fence shall be adjudged insufficient, such per- son so offending, on complaint being made to any justice of the peace ot any county as aforesaid, shall make full satisfaction for all such damages to the party injured, to be ascertained and recovered as provided in the last preceding section. 4. If any person shall think himself aggrieved by the order or determination of the justice of tlfe^ace and freeholders afore- said, he may appeal therefrom to the fl^^^unty court to be held lor his county, he giving security as" in other cases of appeal, which court shall be authorized and empowered to take cognizance ot the same, as m other cases of appeal from a judgment of a jus- tice of the peace, and the trial shall, in all respects be de novo, and the parties shaU be permitted to plead and the issues made up as m cases of actions of trespass. Provided, that in all cases where proceedings shall be had in counties, in which no jury trials are had in the court of pleas and quarter sessions, the appeal of either party shall be to the superior court of said county. _ 5. Either party may summon witnesses to appear before the justice of the peace and freeholders, and also in court as in other cases. 6. If any slave shall kill any cattle, hog, or horse, not belong- mg to his master, m any cultivated field, which is not fenced at all, or which IS not under sufficient and lawful fence, he or she shall at any time within six months after, be liable to be apprehended on a warrant from any justice of the peace of the county, and on con- viction before two of the neighboring justices shall be subject to and receive thirtynine lashes on his or her bare back, and the own- er or overseer of such slave, so offending as aforesaid, shall on prool ot the offence committed by such slave, pay such damages as shall be adjudged to have been sustained by the owner of the hog, horse, or cattle, so killed as aforesaid, under the same rules and restrictions as are prescribed in the preceding parts of this act* 3. 1831, c. 2, s. 3. 4. 1831, c. 2, s. 2 and 3, 5. 1831, c. 2, s. 1. 6. 1791, c. 354, s. 2. iVote.— References to Adjudged Cases. Sect. 2. Nelson vs. Stewart, 2 Murph. 295. Chap. XLIX.] forcible entry, etc. '2S5 '" CHAPTER 49. FORCIBLE ENTRY AND DE- r TAINER. AN ACT CONCERNING FORCIBLE ENTRY AND DETAINER. Section 1 . Forcible entry punishabk by indict- ment. 2. Summary remedy before justices against those who may be guilty of forcible entry and detainer. 2. Justices to have jurors summoned. 4. Penalty on the sheriff and others for failing to assist the justices. Section 5. No restitution to be awarded, when the party has been in possession three j'ears. 6. Remedy extended to tenants for term of years. 7. Record to be made of the proceed- ings. 1. Be it enacted by the General Assembly of the State of JVorth Carolina^ and it is hereby enacted by the authority of the same, That none shall make any entry into any lands and tenements, hut p^^pj^g g^i^y in case where entry is given by the law ; and in such case, not punishable by with strong hand nor with multitude of people, but only in a peace- ^'^ ictment. ; able and easy manner : and if any man do the contrary, and be I thereof duly convicted, he shall be punished by fine and imprison- ment, at the discretion of the court before whom he is tried. 2. Where any doth make forcible entry into lands and tenements Summary rem- or other possession, or having entered peaceably doth hold them ^^J^^ against' forcibly, upon complaint being made to any justice or justices of those who may I the peace, it shall be the duty of the said justice or justices to foible ^ntry I take sufficient power of the county, and go to the place where the and detainer. I force is made ; and there or at some other convenient place, ac- f cording to their discretion, whether the persons making such forci- 1 ble entry or holding forcibly be present, or else departed before I the coming of such justice or justices, it shall be the duty of the ; said justice or justices to inquire of the forcible entry or forcible I detainer complained of, by a jury of good and lawful men to be by 1 him or them then and there sworn and empanelled, and if the said ] jury shall find the force as charged, it shall be the duty of the said j justice or justices to recognize the persons convicted of such force 1 to the ensuing superior court, to answer any indictment that ! may be preferred against them ; and it shall further be the duty g ' of the said justice or justices to cause to reseize the land and " i tenements so entered or holden as aforesaid, and to put the party, ■ so put out, in full possession of the said lands and tenements. 3. When complaint shall be made as aforesaid, the justice or i!aveTuro*r°s i summoned. > 1.5 Rich. 2, c. 8. I 2. 15 Rich. 2, c. 2.-3 Hen. 6, c. 9. •3. 8 Hen. 6, c. 9. 286 FORCIBLE ENTRY, ETC. [ChaP. XLIX. Penalty on the sheriff and others for fail- ing to assist the justices. No restitution to be awarded, when the party has been in possession three years. Remedy ex- tended to ten- ants for term of years. Record to be made of the proceedings. justices to whom the same is made shall issue a warrant or precept, directed to the sheriff or other proper officer of the county, com- manding him in the name of the State to cause to come before such justice or justices, at such time and place as shall be therein men- tioned, sufficient indiffisrent freeholders, dweUing near the lands so entered, to inquire as aforesaid of such forcible entry and detainer ; and if the sheriff or other officer shall fail to execute such precept, he shall pay a fine of forty dollars for every default, and moreover be subject to such fine for contempt as the said justice or justices may in their discretion impose ; and each juror summoned as aforesaid shall be subject to a fine of twenty dollars for failing to attend according to his summons. 4. The sheriff, and such others as he or the said justice or jus- tices shall order and command for that purpose, shall, upon pain of imprisonment, go and assist the said justice or justices in arresting the offenders against the provisions of this act, and also in causing restitution to be made of the lands and tenements entered orholden by force as aforesaid. 5. No restitution, upon any indictment or finding of forcible entry or holding with force, shall be made to any person, if the person so indicted hath had the occupation or been in quiet pos- session for the space of three whole years together, next before the day of such indictment so found, and his estate therein not ended or determined, which the party may allege for stay of resti- tution, and restitution shall stay till that be tried, if the other party will deny or traverse the same ; and if such allegation be found against the person so indicted, he shall pay such costs and damages to the other party as shall be assessed by the judges or justices before whom the same shall be tried, the said costs and damages to be recovered and levied as is usual for costs and damages in judg- ments upon other actions. 6. Tenants for term of years of the lands or tenements, which shall be entered upon by force or holden from them by force, shall have the like remedy, and the proceedings shall be the same in all respects as herein before prescribed for tenants of a freehold estate. 7. Of all the proceedings before the justice or justices under the provisions of this act, the said justice or justices shall make a record, and return the same to the superior court of law of the county in which the same shall be held, to be kept among the re- cords of the said court. 4. 15 Rich. 2, c. 2. 5. 31 Eliz. c. 11. 6. 21 Jac. 1, c 15.' 7. Amendment. Note. — Refehences to Adjudged Cases. Sect. 2, State vs. Butler, Con. 331. Adam vs. Robinson, 1 Murph. 393. SrcT. 6. State vs. Butler, Tayl. 262. ;cha.p. l.] FRAUDS, ETC. 287 CHAPTER 50. FRAUDS AND FRAUDULENT CON- VEYANCES. AN ACT FOR THE PREVENTION OP FRAUDS AND FRAUDULENT CON- VEYANCES. . ^ , , ^ / -s c--^ Section /^^^.r' Ci- 4-^. 7. Mode of proceeding when judgment Section ■~ 1. All conveyances of lands or goods, made to defraud creditors, shall be void. 2. Conveyances made to defraud pur- chasers shall be void. 3. Penally on the parties to fraudulent gifts, grants, &c. 4. Conveyances bona fide upon good considerations not to be affected. 5. What proceedings may be had when the property of a debtor is fraudu- lently conveyed to injure his cre- ditors. 6. Where the party fails to appear, ^- judgment may be entered by de- fault. 9. 10. 11. is given by a justice of the peace. Contracts for the sale of lands and slaves must be in writing. Persons removing debtors to hinder, delay or defraud creditors, to be liable for their debts. Contracts — of executors, &c. to be answerable out of their own estates — or to charge any person with the debt, &c. of another, must be in writing. Contracts with the Cherokee Indians to be in writing, subscribed by two witnesses. ' 1. For avoiding and abolishing feigned, covinous and fraudu- lent feoffments, gifts, grants, alienations, conveyances, bonds, suits, judgments, and executions, as well of lands and tene- ments, as of goods and chattels, which have been, and still are, contrived and devised of malice, fraud, covin or collusion, to the end, purpose and intent to delay, hinder and defraud creditors and others of their just and lawful actions, debts and accompts : Be it enacted by the General Assembly of the State of JSTorth Carolina, and it is hereby enacted by the authority of the same, That all and every feoffment, gift, grant, alienation, bargain and f^jIceToflands conveyance of lands, tenements and hereditaments, goods and or goods, made chattels, or any of them, by writing or otherwise, and all and every ■°ofs''^shall*be'^" bond, suit, judgment and execution, at any time had or heretofore void! made, or at any time hereafter to be had or made, to or for any intent or purpose last before declared and expressed, shall be from hence- forward deemed and taken (only as against that person or persons, his or their heirs, executors, administrators and assigns, and every of them, whose actions, debts, accounts, damages, penalties and for- feitures shall release by such covinous or fraudulent devices and practices as is aforesaid, or shall or might be in any wise disturbed, hindered, delayed or defrauded) to be clearly and utterly void, frustrate, and of no effect ; any pretence, color, feigned consider- 1. 1715, c. 7, s. 4.— 50 Edw. 3, c. 6.— 13 Eliz. c. 5, s. 2. 2S8 FRAUDS, ETC. [ChAP. L. ation, expressing of use or any other matter or thing to the con- trary notwithstanding. Conveyances 2- Every conveyance, charge, lease, or incumbrance of any made to de- lands or hereditaments, made for the intent to defraud such per- clmser^^shall ^^^^ ^^ have purchased or shall purchase, in fee simple, or for be void. lives or years, the same lands or hereditaments, or to defraud such as shall purchase any rent or profit out of the same, shall be deem- ed (only as against that person, and others claiming under him, which shall purchase for good consideration the same lands or hereditaments, or rents or profits out of the same,) to be utterly void. Penalty on the 3. And all and every the parties to such feigned, covinous or fraudulent fraudulent feoffments, gifts, grants, conveyances, bonds, suits, ^fts, grants, judgments or executions, and being privy and knowing of the same, or any of them, which shall wittingly and willingly put in use, maintain or avow, justify or defend the same, or any of them, as true, simple and done, had or made bona fide and upon good con- sideration, or shall alien or assign any lands, tenements, goods or things before mentioned, to him or them conveyed as is aforesaid, or any part thereof, shall incur the forfeiture of the real value of the lands and tenements, goods and chattels, one moiety thereof to the State, and the other moiety to the party grieved and intended to be defrauded thereby. bonlfide^'^uloii ^' Nothing contained in the first and second sections of this good consider- act shall extend to, or be construed to impeach, defeat or make affected"'^ ^° ^ ^°^^ ^"X Conveyance or assurance, interest, hmitation of use or uses, of, in, to, or out of any lands or tenements, goods or chat- tels heretofore at any time had or made, or hereafter to be bona fide made, upon and for good considerations, to any person or per- sons whatsoever, not having notice of such fraud. What proceed- 5, Upon any judgment rendered, or which shall hereafter be had when the rendered, in any court of record in this State, if the plaintiff by property of a himself, his agent or attorney in fact, will make an affidavit stating ulentiy convey- that the defendant hath no visible property to satisfy the same, or ed to injure his on which an execution can be levied, and that he or she hath good crGciitors reason to believe that the defendant has fraudulently conveyed his or her property to avoid or delay the payment of his or her just debts, or that some other person or persons is or are in posses- sion of property, belonging to said defendant, and conceals the same, the court, or clerk, in case the said court is not sitting, in which the said judgment hath been or shall be rendered, shall and may at any time while the said judgment is in force, order a scire facias or scire f aclases, as the case may be, to be issued ' against and served upon the person or persons claiming any estate, real or personal, under any such conveyance, or any person or persons charged in the affidavit with concealing any money, goods or other estate for the use of the defendant, or for the purpose of 2. 27 Eliz. c. 4, s. 2. 3. 1715, c. 7, s. 5. 4. 1715, c. 7. s. 6.— 13 Eliz. c. 5, s. 6. 5. 1806, c. 700, s. 1.— 1793, c. 389, s. 4. HAP. L.] FRAUDS, ETC. 289 (jnabling him or her to avoid or delay the payment of his or her [ust debts, in which he or they shall be commanded to appear at the next succeeding term, and declare upon oath and in writing, whether he or she holds, or is in possession of or claims title to my money, goods or other estate, real or personal, under anycon- i^eyance made by the defendant upon any secret trust, and whether oe or she holds or is in possession of any money, goods or other Sstate, or was, at the time of rendering said judgment, or at any ,;.ime since, in possession of any money, goods or other estate, under any secret delivery, to hold the same for the use of the defendant or any other person, to enable him or her to avoid the oayment of his or her just debts ; and if the scire facias shall be i'eturned served by delivering a copy to the party against whom it ,ssued, or by leaving a copy at his or her dwelling, and the party ishall appear, the court shall proceed to require a declaration from lim or her on oath, as aforesaid, and if the party so called into court, shall acknowledge that he or she does hold or claim property bf the defendant in manner aforesaid, the court shall and may order :he same to be delivered up or made subject to the judgment of the plaintiff, and in case the same or any part thereof shall be money, or in case any part of the property shall have been used, wasted, or destroyed by the party, the court may give judg- ment for the plaintiff against such party, for the amount and value of the money then held, or which has been used, as also for the t^alue of any other property (to be ascertained by a jury) used, wasted or destroyed, and acknowledged as aforesaid to have been ^^eceived, in manner aforesaid, for the use of the defendant or any other person as aforesaid ; but in case any person, called into court in manner aforesaid, shall deny that he or she holds, or is in pos- session of or claims title to any property real or personal, conveyed or delivered for the purpose of enabling the defendant to avoid, or delay the payment of his or her just debts, or that he lias held any such property and used or wasted the same, the plaiMiff may^ iif he or she think proper, require an issue to be made up? and the ifacts tried by a jury, as in other cases, and judgment shall be given accordingly with costs, and in case any verdict and judgment shall ibe given in favor of any person called on under any scire faciaSy or in case he or she shall be discharged by his or her declai'ation ion oath, without the trial of any issue, he or she shall be entitled to the same costs as if he or she had been originally sued in said action. 6. Tn case any scire /acias^ shall be returned served in manner Where the iherein directed, and the party against whom the same issued shall appear jud?- fail to appear, the plaintiff may enter against him or her ajudgment meni may be by default, but before executing any writ of inquiry, or entering ^^^j^^'^ "^^ up any final judgment, a second scire facias shall issue to the party, requiring him or her to appear and show cause why final judgment should not be entered up for the amount of the plaintiff's demand, 6. 1806, c. 700, s. 2. . VOL. I. 37 290 FRAUDS, ETC. [ChaP. L. or the amount which the plaintiff shall in his affidavit state to have been in the hands or possession of such party, for which amount upon the service of said scire facias, in manner herein directed, the plaintiff may enter up judgment against said party with costs as aforesaid. Mode of pro- 7. When any judgment shall be given by any justice of the ceedmgwhen peace out of court, the plaintiff may make an affidavit, in manner TU.QS'IIleTlt IS -^ X B* ' gfiven by a jus- herein directed in courts of record, upon which he shall be en- tice of the titled to carry up to the next succeeding court of pleas and quarter sessions, to be held for the county in which said judgment is given, with the said affidavit, the warrant, judgment, and all papers re- lating thereto, and upon which the said court shall and may issue a scire facias, in manner herein directed, which shall be proceeded on in the same manner as if the suit had been originally instituted in said court. Contracts for 8. All Contracts to sell or convey any lands, tenements, or the sale of land j^gj.g(jjj-aj-fjgj-,{g or any interest in or concerning them, or any slave must be in or slaves, shall be void and of no effect, unless such contract, or writing. some memorandum or note thereof, shall be put in writing, signed by the party to be charged therewith, or by some other person, by him thereto lawfully authorized, except nevertheless contracts for leases not exceeding in duration the term of three years. Persons rcmov- 9. If any person or persons shall remove, or shall aid and assist hdndet^^dela^° ^" removing, any debtor or debtors out of any county, in which or defraud he, she or they shall have resided for the space of six months or ifiw''r'^^'.i*°*^'^nnore, with an intent by such removing, aiding or assisting, to liable lor their , , ' . , i r i i t r i i . i i debts. delay, huider -or delraud the creditors oi such debtor or debtors, or any of them, such person or persons, so removing, aiding or assisting, shall, they and their executors and administrators, be liable to pay all debts, v/hich the debtor or debtors so removed shall or may justly owe in the county from which he was so removed, which debts may be recovered by the creditors respec- tively, w^ho may be entitled thereunto, their executors or admin- istrators, by an action on the case, provided such suit shall be commenced within three years from and after the time of such removal. Contracts— of 1^. No action shall be brought, whereby to charge any executor executors, &c. or administrator upon a special promise to answer damages out of able'^oa^^of l^is own estate, or to charge the defendant upon any special their own es- promise to ansvver the debt, default or miscarriage of another cha^rge any pcrson, unless the agreement upon which such action shall be person with brought, or some memorandum or note thereof, shall be in writing of\nother, '^ and signed by the party charged therewith, or some other person must be in thercunto by him lawfully authorized. Contracts with H- AH contracts and agreements of every description, made the Cherokee after the eighteenth day of May one thousand eight hundred and Indians to be ° •' •' ° 7. 1806, c. 700, s. 3. i. 8. 1819, c 1016. 9. 1820, c. 1063. 10. 1826, c. 10. n. 1836, c. 8. Chap. LL] gaming contracts. 291 thirtyeight, with any Cherokee Indian, or any person of Cherokee in writing, sub- Indian blood, within the second degree, for an amount equal to witMs'seJ '^^'^ ten dollars or more, shall be null and void, unless 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 creditable witnesses, who shall also subscribe the same. Note. — Refehences to Adjudged Cases. Sect. 1. Sherman vs. Russell, 1 Car. Rep. 467. O'Daniel vs. Crawford, 4 Dev, 197. Jones vs. Youn";, 1 Dev. and Bat. 353. Sect. 2. Bellas. Blaney, 2 Murph. 170. Sect. 5. McEwen vs. Benning, 1 Hawks, 474. Wintry vs. Webb. 3 Dev. 27. Sect. 8. Clioat vs. Wright, 2 Dev. 239. Ellis vs. Ellis, 1 Dev.Eq. ISO. Tate vs., Greenlee, 4 Dev. 149. Miller vs. Irvine, 1 Dev. and, Bat. 103. Bakeries. Carson, I Dev. and Bat. Eq. 381. Sect. 10. Cooper vs. Chambers, 4 Dev. 261, CHAPTER 51. GAMINU CONTRACT AN ACT CONCERNING GAMING. j Be it enacted by the General Assembly of the State of JS'^orth l( Carolina, and it is hereby enacted by the authority of the same, [ That every promise, agreement, note, bill, bond, or other con- to°^YmmmY .t tract to pay, dehver or secure money or other thing, won or upon any kind / obtained by playing at cards, dice, tables, tennis, bowls or other "gjjff^^"|^ °'' fi games, or horse racing, or by wagering or betting on either of the purpose of il parties, who shall play at such games or horse racing, or to repay ^^""°5' '*^°^"- 3 or secure money or other thing lent or advanced for that purpose, j or lent or advanced, at the time of such gaming, playing, betting, 'I. horse racing, laying and adventuring, shall be void ; and every ■ conveyance or lease of lands, tenements or hereditaments, sold, ^^'^"'""^^^ '^°^'^ i demised or mortgaged, and every sale, mortgage or other transfer 1 of slaves, or other personal estate, to any person or for his use, to ■ satisfy or secure money so won, lent or advanced, on due proof ji made before any jurisdiction having cognizance thereof, shall be U and is hereby declared void. I 1- 1738, c. 284.— 1310, c 796. '■ Note. — References to Adjudged Cases. Stowell vs. Guthrie, 2 Hay. 297. Hodges vs. Pitman, 2 Car. L. Rep. 394. Wood 'vs. Wood, 3 Murph. 172. Forrest vs. Hart, ib. 458 Turner vs. Peacock, 2 Dev. 303. Hedspeth vs. Wilson, 2 Dev. 372. Dunn vs. Holloway, 1 Dev. Eq. 322. 29-3 GENERAL ASSEMBLY. [Chap. LII, CHAPTER 52. GENERAL. ASSEMBLY. AN ACT CONCERNING THE GENERAL ASSEMBLY OF THE STATE OP NORTH CAROLINA. Section 1. When and where the election for members of the General Assembly shall be held. 2. The county courts may alter, estab- lish or discontinue separate places of election. 3. Time and place of holding the elec- tions to be advertised by the sheriff. 4. County courts to appoint inspectors for every separate election precinct. 5. Clerk to furnish the sheriff with a list of the inspectors, and the sheriff to notify them — If the court fail to appoint inspectors, or they refuse to act, the vacancies how to be sup- plied. 6. Sheriff to furnish boxes for receiving the tickets — Tickets how to be re- ceived and put into the boxes. 7. Persons qualified to vote how to give in their tickets — List of voters to be kept — How the boxes are to be opened and the tickets counted out. 8. Manner in which the statement of the polls shall be made up, return- ed, compared, and the persons de- clared duly elected. 9. Manner in which the statement of the polls shall be made out in the senatorial districts — Where the polls of the different counties com- posing the district shall be com.par- ed — and how the persons elected shall be so declared. Sheriffs' pay for attending to com- pare the polls in the senatorial dis- tricts. Persons offering to vote, may be required to swear to their qualifica- tions, of which the inspectors shall be the sole judges. In case of vacancies occurring before the meeting of the General Assem- bly, it shall be the duty of the sher- iff to notify the governor thereof. 13. Persons elected, and refusing to ac- 10 11 12. BECTION to notify the to order a cept, or resignmg, governor. 14. Governor, in such cases new election. 15. Elections held under a writ from the governor, or speaker of either house, to be held as other elections. 16. Elections, at what time to be opened and closed. 17. Sheriff to furnish persons elected, if requested, with a copy of the list of votes — Penalty on sheriffs for fail- ing to do their duty in regard to elections. 18. Candidate not elected, to be furnished with a statement of the polls, upon paying two dollars for the same. 19. When no sheriff, the coroner to hold the election — When there is neither sheriff nor coroner, three justices may appoint a freeholder for that purpose. 20. Penalty on persons not qualified, for voting at elections. Musters not to be on the day and at the place of any election. Penalty for bribing an elector to give his vote. Penalty for treating at elections. Sheriff to advertise the two preceding sections against bribing and treating at elections. Time of the meeting of the General Assembly. Governor and council may convene the General Assembly at other than its usual meetings. Members of the General Assembly to take oaths to support the constitu- tion of this State and of the United States — Penalty on members fo; giving any gratuity, &c. to secure their election. 23. Persons elected shall attend at thd meeting of the General Assembly. 29. Penalty on persons elected for faiUng 21. 22. 23. 24. 26. S7 Chap. LII.[ GENERAL ASSEMBLY. 293 Section to perform the duties of their ap- pointment. 30. Members to have freedom of speech and to be protected from arrest, &c. 31. Sheriffs to make return to the Gener- al Assembly, of members elected from their counties to serve therein. 32. How any person contesting the seat of a member shall proceed. 33. Penalty on witnesses for failing to attend and give evidence in con- tested elections. Section 34. Pay of witnesses for attending in such cases. 35. Persons desirous of procuring the passage of a private law, how to proceed. 36. Acts of the General Assembly, when to be in force. 37. 'J'he journals of the two houses to be deposited in the office of the secre- tary of state, who shall certify cop- ies thereof when required. 1. Be it enacted by the General Assembly of the State of JYorth Carolina, and it is hereby enacted by the authority of the same, That the election for members to the Senate and House of Com- When and mons of the General Assembly shall be held for the respective tion for mem- districts and counties, at the places at which they are now held, or bers of the at which they may be directed hereafter to be held, in manner as sembiy shall hereinafter prescribed, on the second Thursday in August, in the be held. year one thousand eight hundred and thirtyeight, and every two years thereafter : Provided, that if by any private or local law the time of holding the election for any county is different from that above mentioned, the election shall be held for such county at the time at which it is so prescribed to be held in the year eighteen hundred and thirtyeight, and every two years thereafter. 2. The several courts of pleas and quarter sessions shall have The county /.,, .. >- . . ^^, ... „ , courts may lull power and authority, a majority 01 the acting justices ot the alter, establish county beina; present, to alter, fix, estabhsh, discontinue, or create or discontinue •' , 1 r 1 • • 1 • • • separate places anew, such separate places oi election in their respective counties of election, as the said courts may from time to time deem expedient, thirty days notice having been given in three or more public places and at the court house of the intended application for the same. 3. The sheriff or other returning officers of the respective coun- '^f?^^,^-^'^ 'P}t^'^' 1 11 1 • 1 • 11 /• 1 • ^1 . of holding the ties shall advertise the time and places ot election, at the several elections to be places where the same is to be held, at least twenty days before f^J sheriff ^^ such election. 4. The court of pleas and quarter sessions for every county. County courts at the court preceding every election, shall appoint one justice of gpg^j!J^°g"fQj°' the peace, and as many freeholders as may be deemed necessary, every separate as inspectors to superintend the election, at the several places where cinct'.""^ ^"^^ the same is to be held, whose duty it shall be to attend, at the places for which they are appointed, on the day of election, and who shall be sworn by the sheriff", or in case of his absence by some justice of the peace, to conduct the election fairly and impartially accord- ing to the constitution and laws of the State. 5. The clerk of the court of pleas and quarter sessions shall, ish the sheriff immediately after the court preceding the election, furnish the 1. 1739, c. 307, amended. 2. 1819, c. 1000.— 1830, c. 35.— 1832, c. IS. 3. 1777, c. 116, s. 2. 4. 1777, c. 116, s. 3. — 1812, c. 842, s. 1. 5. 1777, c. lie, s. 3. i«k 294 GENERAL ASSEMBLY. [Chap. LII. with a list of the inspectors, and the sheriff to notify them. If the court fail to appoint in- spectors, or they refuse to act, the vacan- cies how to be supplied. Sheriff to fur- nish boxes for receiving the tickets. Tickets how to be received and put into the boxes. Persons quali- fied to vote, how to give in their tickets. List of voters to be kept. How the boxes are to be open- ed and the tickets counted out. Manner in which the statement of the polls shall be made up, returned, com- pared, and the persons de- clared duly elected. sheriffs of the respective counties with a list of the persons ap- pointed to act as inspectors of the polls at the several places of elec- tion, and the sheriff shall notify such persons of their appointment, at least twenty days before the day of election. Should the court fail to make such appointment, or if the court should not have ap- pointed a sufficient number of inspectors, or those appointed should die or refuse to act, then it may be lawful for the sheriff, with ad- vice of three justices of the peace, or, if none be present, three respectable freeholders, to appoint inspectors to hold the election, who when so appointed and duly sworn shall have the same au- thority as if appointed by the court. 6. The sheriff or the returning officer shall, on the day and at the places for holding each respective election, be provided with small boxes, one for receiving the ballots for the senator, and the other for receiving the ballots for members of the house of com- mons, and the returning officer or his deputy, which deputy shall in all cases be sworn before proceeding to act, 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 at any separate place of election, the tickets shall be received by one of the in- spectors, in the presence of the others, and put into their proper boxes in manner as aforesaid. 7. Every person quahfied to vote, in manner directed by the constitution of this State, who shall attend for that purpose at any election, shall give to the returning officer in presence of the in- spectors, or in the absence of the returning officer to one of the inspectors, a ticket or scroll of paper rolled up, in which shall be written the name or names of the person or persons for whom he intends to vote, which ticket shall be put into the proper box, in manner before directed, and at the same time two of the inspec- tors shall take down, in separate lists, the name of every person voting, distinguishing those who shall vote for senators in one list, and those for county members in the house of commons in a sec- ond, and when the election shall be finished, the returning officer and the inspectors shall, in presence of such of the electors as may choose to attend, open the boxes one after another, and num- ber the ballots of one box before they shall open another, at the same time reading aloud the names of the persons who shall ap- pear in each ticket, and if there shall be two tickets rolled up to- gether, or if 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 adjudged void. 8. Immediately after the close of the polls at each and every place of election, a correct statement of the number given for each candidate, and also the names of the persons voting, shall be made out and signed by the inspectors, and then sealed and direct- 6. 177-7, c. 116, s. 4.— 1812, c. 842, S. 2. 7. 1777, c. 116, s. 5. • S. 1777, c. 116, s. 5, amended. Chap. LIL] general assembly. 295 ed to the sheriff, which shall be handed by some one of the in- spectors appointed for the purpose to the sheriff of the county, at the court house of said county, on the next day, between ten o'clock A. M. and four o'clock P. M., and on the returns being made to the sheriff or his deputy, he shall, in the presence of the inspectors, who carried their respective polls, proceed to add the number of votes to him 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 by his casting vote the person duly elected. 9. The provisions contained in the last section shall be appli- cable to all elections for members of the senate, where the senate- which the rial district is composed of not more than one county, as well as statement of ^ . P ' , r 1 ^ c 1.1 the polls shall to elections for members of the house of commons ; but where any be made out in senatorial district, as laid off by the amended constitution, is com- the senatorial • • -• districts posed of more than one county, the sheriff or other returning offi- where the polls cer of each of the counties, composing such senatorial district, of the different shall after receiving the returns from the inspectors, as prescribed posing the dis'- in the last section, meet on the third Thursday in August, after tricts, shall be each election, at the following places, in their respective districts, how^'the per^" for the purpose of comparing the polls in the said district, viz : sons elected In the first district, composed of the counties of Pasquotank and ciared. Perquimons, at Woodville, on Little river ; in the second district, composed of the counties of Camden and Currituck, at Indian Town, Dr Marchant's store ; in the third district, composed of the counties of Gates and Chowan, at the house or Thomas J. Mil- ler, in Gates county ; in the fourth district, composed of the coun- ties of Washington and Tyrrel, at Columbia, in Tyrrel county ; in the seventh district, composed of the counties of Greene and Lenoir, at Snow Hill, in the county of Greene ; in the nineteenth district, composed of the counties of Beaufort and Hyde, at Leechville, in Beaufort county ; in the twentieth district, com- jDOsed of the counties of Jones and Carteret, at Buckner Hill's mill, in Carteret county ; in the thirtieth district, composed of the counties of Brunswick, Bladen and Columbus, at the house of David Taylor, senior, in Brunswick ; in the thirtyfirst district, composed of the counties of Robeson and R.ichmond, at Dr John Malloy's, in Richmond ; in the thirtyfourth district, composed of the counties of Moore and Montgomery, at the house of Daniel Chisholm, in Moore ; in the fortyfourth district, composed of the counties of Wilkes and Ashe, at Wilkesborough and Jefferson al- ternately ; in the forty fifth district, composed of the counties of Burke and Yancey, at David Chandler's, North cove, Burke county ; and in the fortyninth district, composed of the counties of Buncombe, Haywood and Macon, at Waynesville, Haywood county. Provided ahoays, that if any accident shall happen to either of the returning officers, which may prevent either or any of them from meeting on the day aforesaid, the returns of each and every officer shall be i-eceived on the day following. And the sheriff or other returning officer, failing to attend at the time and place above 9. 1S35, c. 1, s. 1 and 3. 296 GENERAL ASSEMBLY. [ChAP. LIl. mentioned, shall forfeit and pay the sura of five hundred dollars, to be recovered for the use of the State, upon due proof thereof, in any court of law, having jurisdiction thereof, by action of debt in the name of the State, and shall moreover be subject to indict- ment, and fined at the discretion of the court. And when the sher- ifl:s or other returning officers shall be convened as aforesaid, the poll for the different counties, shall by the said sheriffs or other returning officers, in the presence of three justices of the peace, or if said justices of the peace cannot be conveniently procured, then in the presence of three freeholders, who are to be summon- ed by the sheriff or other returning officer of the county, where they shall meet for that purpose, be examined and compared, and a certificate under the hands and seals of said returning officers shall be given to the candidate in each district, for whom the great- est number of votes shall have been given in said district. But if two or more candidates shall have an equal number of votes, the said returning officers shall determine which of them shall be the senator ; and if no decision is made by them, then they shall de- cide the same by drawing in like manner as the grand jury is drawn for in the superior court. SherifFs' pay 10. Every sheriff or other returning officer shall be allowed the to'^compare" the S"™ of two dollars and a half, for every thirty miles travelling to and polls in the returning from the place of comparing the polls, and the same sum tricts°"^ ^^" ^'^^ every day he shall necessarily attend for the purpose of com- paring tiie polls, and also his ferriages, which shall be paid by the treasurer of the State on affidavit of the sheriffs or other returning officers, which affidavit may be made before any justice of the peace within the State. ^^J^to"votfmav ^^' ^^^ry pcrsou, before he shall be admitted to give his vote be^required to at any election, shall, if required by the inspectors or any one of quaUfication^'^of ^'^^"^' swear (or affirm as the case may be) that he is quahfied which the in- according to the constitution, and that he hath not before voted at beThelole^^^ such election ; and the inspectors at such election shall have the judges. sole and exclusive right to judge of the qualification of voters, except where there is an equal division of opinion between them, in which case the sheriff or other returning officer shall decide. In case of va- 12. If any person, who shall be elected to represent any county rhlg blf°re the ^r district in the General Assembly of this State, shall, before the meeting: of the meeting of the said General Assembly, die, or from any other 11 "It shairbe" '^^"^^ ^^^^' refuse, or neglect, or delay, to accept of his said the duty of the appointment, it shall be the duty of the sheriff of the county, in tify"he^eover- ^^hich the Said pcrson so elected resides or did reside, to notify nor thereof. the governor of the same forthwith : and the said sheriff, for neg- lect of duty herein, shall be subject to indictment in any court of record, and on conviction shall be fined or imprisoned at the dis- cretion of the court. Persons elected 13. If any person, who shall be elected to represent any county acceptforrf-^° Or district in the General Assembly of this State, shall before the signing, to no- tify the gover- 10. 1335, c. l,s 2. Il°'"- 11. 1777, c. 116, S. 7.— 1833, c, 9. 12. 1S35, c. 5, s. 1. 13. 1835, c. 5, s. 2. r Chap. LIL] general assembly. 297 uu meeting of the said General Assembly resign, refuse or decline to accept and attend the duties of his said appointment, it shall be the duty of such person immediately to notify the governor in writing such his determination. 14. In all vacancies, that shall occur by death, resignation or Governor, in otherwise, before the meeting of the General Assembly, it shall order a new be the duty of the governor, upon being notified thereof as afore- election. said, to issue a writ of election to the sheriff 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 Assembly, to supply such vacancy, at a certain time therein to be specified, and under the same rules and regulations as are prescribed for holding elections at the regular times in said county or district. 15. Every election, held in pursuance of a writ from the p-qv- ^^^*^'^°°® ^.^^'^ J ^ ' , ^ , ^ under a writ ernor, or by virtue of any writ from either house of the General from the gov- Assembly, shall be conducted in like manner, as the regular bien- '^^''J' °j[j^P^^'^' nial elections, so far as the particular case can be governed by the house, to he general rules, and shall to all intents and purposes be as legal ^"d ^Yg^^.^nr^^"^ vahd, 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 regulations prescribed for the regu- lar biennial elections. 16. Every election shall begin at ten o'clock, A. M. on the ^}j\\^\°^;''to 1,^ day appointed for such election, and shall close at sunset the same opened and day. '=^°'^'^- 17. Every sheriff or other returning officer, within ten days Sheriff to fur- after every election, shall at the request of any person elected to "{gg^^^^'^if Re- serve in the General Assembly, or other persons in his behalf, quested, with a cause fair copies of the list of votes and the number of ticket bal- Qf^^^tes. lots for each candidate to be made out and dehvered to the person requesting the same, or to his order, which list and numbers shall be signed by the returning officer ; and if any officer shall refuse Penalty on so to do, or shall make elections in any other manner than by this ing to do their act is directed, or shall neglect or refuse to make returns of the ^^^^Y '^T^S'^'^'^ elections, by him to be made or taken, the officer so offending shall forfeit and pay five hundred dollars, to be recovered by action of debt, in any court of record having cognizance thereof, one half for the use of the State, the other half to the use of the person suing for the same. IS. The sheriff, or other returning officers, in each county ai^cl ^^^j^'^'*^^® i^"^°^ district of this State, shall, on the payment of the sum of two dol- furnished with lars, make out and furnish any candidate, not elected, with a fair f, ^t'^'*:™^"'^ "f ,' r .u 11 1 • c ^ ^ ■ the polls, upon and true copy oi the polls, and a just statement ot the election, paying two dol- within twenty days after such election, under penalty of two bun- ^l^^^ ^^*^ dred dollars for the use of the State. Provided^ nevertheless, that such candidate shall make application for such statement or copies 14. 1335, c. 5, s. 3. ' , 15. 1777, c. 116, s. 8. 16. 1777, c. 116, s. 9, amended. 17. 1777, c. 116, s. 13. 18. 1799, c. 533. VOL. I. 38 298 GENERAL ASSEMBLY. [ChAP. LII. to the sheriff or other returning officer, within ten days after the election, for which he was a candidate. Whennosher- ^^- ^^ ^^ ^"7 ^ime it shall happen, that there shall be no sheriff iff, the coroner in any county qualified according to law, the coroner or coroners election! ^ ^^ such county is and are hereby empowered to hold elections for When there is such county; and where there shall be neither sheriff nor coroner nor* coroner" ^^ take the poll at the biennial or any other election, it shall be three justices lawful for three justices of the peace to appoint some reputable ftrJhoFJkr for^ freeholder to hold the election, with the same powers, directions that purpose, and restrictions, as sheriffs by law are invested with and subject to, and such election so made shall be as valid as if taken and held by the sheriff or coroner. Penalty on 20. If any person shall hereafter vote at any election, who by qiialifiedl°for l^w shall not be entitled to vote at such election, he shall forfeit voting at elec- and pay the sum of four dollars, to be recovered with costs by action of debt before any jurisdiction having cognizance thereof, one half to the use of the county wherein such election shall be held, :and the other half to him or them who shall sue for the same; and where any suit shall be brought against any person for voting as aforesaid, without having a right to such vote, the onus pro- bandi shall he upon the defendant. Musters not to 21. It shall not be lawful to call or direct any regimental, bat- and°at\he ^^ talion or company muster, or to assemble armed men, on the day- place of any of any election, at any place appointed by law to hold elections eection. ^^^ members of Congress, or members of the General Assembly within this State, under the penalty of one thousand dollars, to be recovered of any person or persons, who shall call such muster, or assemble such armed men, in the name of the State, and be applied, one half to the use of the informer, and the other half to the use of the State. Penalty for 22. If any person shall at any time before or after any election, tOTtogive hfs^^ither directly or indirectly, give any money, gift, gratuity or re- vote, ward to any elector or electors, or to any county or district, in order to be elected, or to procure any other person to be elected as a member of the General Assembly, every person so offending shall forfeit and pay four hundred dollars, to be recovered by ac- tion of debt, in any court of record having cognizance thereof, with costs, and shall be incapable to serve as a member during the continuance of that General Assembly, for which such election shall be made as aforesaid. Penalty for 23. If any person or persons shall treat, with either meat or tions!"^ ^ ^ ^^ drink, on any day of election or any day previous thereto, with an intent to influence the election, every person so offending shall forfeit and pay the sum of two hundred dollars, the one half for the use of the county where the same shall be recovered, to be paid to the county trustee, the other half to the use of the person who 19. 1777, c. 116, s. 13.— 17S1, c. 170, s. 9. 20. 1777, c. 116, s. 10. "- 21. 1795, c. 431. 22. 1777, c. 116, s. 11. 23. 1801, C. 580, s. 3. Chap. LIL] general assembly. 299 shall sue for the same, to be recovered by action of debt in any court of record having cognizance thereof, with costs. 24. It shall be the duty of the sheriff in each and every Sheriff to ad- county, annually to publish the two preceding sections of this act, precedinsVec" by advertising and reading the same at the court house door, on tions against the first and second days of the county court, which shall happen treaU^^Ttdec- previous to the annual election, and also on the different days of tions. the election, under the penalty of forty dollars for each and every neglect. 25. The meeting of the General Assembly shall be biennially l^^"!^ °f the on the third Monday in November. Gen.Assembly. 26. The governor may, with the advice of the council of state. Governor and call a meeting of the General Assembly, if the same shall be council may 1 , 1 " 111 11 convene the absolutely necessary, at a sooner day than the same may stand ad- General As- journed to or appointed to meet. sembly at other 27. Every person elected a member of the General Assembly meetings, shall, before taking his seat therein, take the oath of allegiance ap- Members ofthe pointed for the quahfication of members ofthe General Assembly ^^^^[y^^^^'^^j^g and public officers, and also the oath to support the constitution of oaths to sup- the United States : and if any person elected a member of tlie ^fon^of Xf ^' General Assembly shall, by himself or any other person, directly state and of or indirectly, give or cause to be given any gift, gratuity, reward g^lfYg"'^'' or present whatsoever, or give or cause to be given by himself or Penalty on any other person any treat or entertainment, either by himself or '^'^?^^'''^^ ^°'" 1 r 1 • r 1-1 11- • givmg any era- any other person for him, of meat or drnik, at any public meeting tuity, &c. to se- or collection of the people, to any person or persons whatsoever, ^^^^ '•^^^'^ ^^^''^ for his or their vote or votes, or to influence him or them in his election, every person violating this section shall, on due proof, be expelled from his seat in the General Assembly. 28. Every person, who shall be elected to represent any coun^ Persons elected ty or district in this State in the General Assembly thereof, shall f^*^^^ ^"^'^'^ ^J • w* 7 the meetinsf ot meet at such time and place as may be appointed for the meeting the General of the General Assembly, by adjournment or otherwise, on the -'Assembly. first day appointed for that purpose, and attend to the pubhc busi- ness as occasion may require. 29. In case any person, who shall hereafter be elected to re- Penalty on per- present any county or district in the General Assembly of this f°-ifiig^to peV-*"^ State, shall fail, refuse, neglect or delay to attend to the duties of form the duties his appointment agreeably to the directions of this act, every such ^e^t!"^ ^''^""^ " person shall forfeit and pay for non-appearing as aforesaid the sum of ten dollars, and the sum of two dollars for each and every day he may be absent from his duty during the session, which sum or sums of money shall be deducted or taken from his pay or allowance as a member if the same shall be sufficient ; and should the fine or forfeit- ure exceed the pay or allowance of such member or person elected as aforesaid, then and in that case such excess so remaining due shall 24. 1801, c. 580, s. 4. 25. 1826, c. 4, s. 1. 25. 1780, c. 164. 27. 1501, c. 580, s. 2. 28. 1787, c. 277, s. 1. 29. 1787, c. 277, s. 2. 300 GENERAL ASSEMBLY. [ChAP. LII. be taken out and deducted from anj future allowance which may- be made to such person as a member by the General Assembly of this State : Provided nevertheless, that a majority of the members of either house of the General Assembly may and shall have power to remit to any person, having incurred the same, the fines and forfeitures aforesaid, or any part thereof, where it shall appear to their satisfaction on oath or affirmation, that the person hath been prevented from attending his duty by sickness, unavoidable hin- drance, or other sufficient cause. Members to 30. The members of the General Assembly shall have freedom ors%ediand °^ Speech and debate in the General Assembly, and not be lia- to be protected ble to impeacliment or question, in any court or place out of the from arrest, &c. Qq^qj-rI Assembly, for words therein spoken, and the members are hereby declared protected from all arrest and imprisonment, or attachment of property, during the time of their going to, coming from or attending the General Assembly, agreeably to the certifi- cate of their attendance, except for felony, treason or breach of peace. Sheriffs to 31. The sheriff" of every county and district shall make return make return to ^q ^]^g General Assembly, at their first annual meeting, of the per- sembly,of mem- SOU elected in his county or district to represent the inhabitants in frrai their'^ either house of the legislature, and shall therein certify whether counties to the persons so returned v;ere chosen by their own consent, and serve iherem. ^yhich of them was SO chosen ; and if any person so returned shall fail to attend at any session of the General Assembly which he ought to attend, then such person shall forfeit and pay the sum of fifty dollars, to be recovered in the court of pleas and quarter ses- sions of the county for which such person was elected, at the suit of the governor for the time being, on the certificate of such fail- ure, issued by the speaker of the house, in which such dehnquency happened, unless sufficient excuse for such failure be offered and proved on oath by such delinquent member at the next succeeding Assembly. How any per- 32. It shall not be lawful for any person to vacate the seat of the seat of^a^ any member of the General Assembly, who has taken his seat in member shall consequence of the return of the sheriff or sheriffs of his county or procee . district, Certifying that he is duly elected, unless the person or persons who may intend to dispute such election shall give the member or members, whose election he or they intend to dis- pute, thirty days notice previous to the meeting of the General Assembly of such his intention, with the ground on which the same will be disputed ; and the same notice of time and place, now required in taking depositions at law, shall also be required and proved on such investigation, and all affidavits taken without due notice as aforesaid shall be deemed improper evidence and not suffered to be read in such investigation, penalty on 33. If any person, being legally summoned by any lawful offi- foiWto\ttend "^^r ^7 ^ subpoena issued by a justice of the peace, or any other and give evi- dence in con- 30 1737^ c. 277, s. 3. tested elections. 31, 1737^ e. 277, s- 4. 32. 1796, C. 466, s. l- 33. 1800, c, S57, 3. 1. Chap. LIL] general assembly. 301 person authorized by law to take depositions, to appear before them or either of them, to give testimony in behalf of either of the parties disputing any election for members of the General Assem- bly, he or they failing to attend agreeably to the said subpoena, and give testimony as aforesaid, shall forfeit and pay the party grieved the sum of forty dollars, to be recovered by action of debt, before any jurisdiction having cognizance thereof : Provided, nothing here- in contained shall be construed to extend to the compelling any such witnesses to answer any question tending, directly or mdi- rectly, to discover the person for whom he voted, or to discover his disqualifications as an elector. _ 34. Any person, being so summoned and appearing and givmg pay of witnes- testimony as aforesaid, shall be entitled to receive from the person, ?^^| f°7^^^^"d- at whose instance he was summoned, the sum of ten cents for every cases. mile travelling to and from the said place and his ferriages, to be recovered before any justice of the peace in said county. 35. Any person or persons, who may desire the passage of any Persons desi- private law, shall give notice of his intention to make such appli- [°JVeVas°™ge cation, by advertisement in some newsjjaper of this State, which oA private ° circulates in the county where such applicant or some one of them Jf^^-J^7 ^^ resides, or in which such private law will operate, or by advertise- ment at the door of the court house and three other public places in such county, for at least thirty days before such application ; and when any private bill shall be presented, a copy of such advertise- ment, with due proof of its having been so published, shall be pro- duced, before the same shall be read a second time. 36. All acts of the General Assembly of this State shall be in Acts of the force, only from and after thirty days after the rise of the session Gejral^As-^^^ of the General Assembly, in which such acts shall have passed, and be in iorce. not before, unless, in any act or acts, the commencement of the operation of such act or acts shall be expressly otherwise directed. 37 The clerks of the senate and house of commons of this tj^^ jo^^nals of State" shall, as soon as may be convenient, after the close of each Jhe^two houses session of the General Assembly, deposit in the office ot the sec- j^ the office of retary of state the journals of the legislature, and the secretary ofthe^se«-mr|.^^^^ state is authorized and directed to make and certify copies ot any certify copies part or entry of the journals of the legislature of this State, whether Jher^^f/^^" heretofore deposited in his office or deposited there hereafter, and the secretary may take and receive for the copy of each entry so made and certified the same fee as for the copy of a grant. 34. 1800, c. 557, s. 2. 35. 1835, c. 15.— 1796, c. 466, s. 2. 36. 1799, c 527. 37. 1819, c. 1020. 302 GOVERNOR AND COUNCIL. [ChAP. LIII. CHAPTER 53. GOTERNOR AND COUNCIL. AN ACT CONCERNING THE GOVERNOR AND COUNCIL OF STATE. Section 1. Election of governor, when to be held and how conducted. 2. Governor to reside at Raleigh. 3. A house to he provided for him. 4. Governor shall appoint a private sec- retary, who shall enter letters in a letter book. 5. Letter book to be kept in the execu- tive ofBce. 6. Meetings of the council of state shall be in Raleigh. 7. Governor and council may convene the General Assembly, if neces- sary. 8. Governor to procure a seal for the State— Also a seal for each court of record. 9. He may procure new seals when ne- cessary. 10. How the seals are to be prepared. 11. Expense of seals, how paid- Seals Section to be delivered to the proper officers, who are to receipt for the same. When a seal to a grant, &c. is lost, the governor and council may order it to be resealed. Compensation of sheriffs for making returns of the governor's election. How such compensation to be ascer- tained and paid. Persons intending to contest the elec- tion of governor, to give notice, &c. —Proceedings thereon. Sheriffs to transmit a duplicate re- turn of the vote, &c. Penalty on persons for voting who are not qualified. Returns, by whom and when to be opened — How the election to be de- termined. Depositions may be taken in such contested elections. 12. 13. 14. Ic 16. 17. 18. 19. 1. Be it enacted by the General Assembly of the State of JS'orth Carolina.) and it is hereby enacted by the authority of the same., Election of That the sheriffs of the several counties of this State shall open fo be™ eldand" polls, at the several election precincts of their respective counties, how conducted, for the election of a Governor of the State of North Carolina, on the same days in the months of July and August, one thousand eight hundred and thirtyeight, that elections are now held for mem- bers of the General Assembly, and biennially thereafter on the same days, and under the same rules, regulations and restrictions that elections are directed to be held for members of the General Assembly of the State, and that the said sheriffs shall make their returns of the said elections, sealed up, to the secretary of state, to be by him delivered to the speaker of the senate on or * before the second -week of the session of the General Assembly, to be held next thereafter. Governor to re- 2. The governor for the time being, shall reside permanently at Rakfo-h. the city of Raleigh, during his continuance in office. A house to be 3. A convenient and commodious dwelling house, together with provided for ^y^ch out houses as shall be necessary, shall be provided for the 1. 1835, c. 1. s. 4. 2. 1802, c. 625, s. 1. 3. 1813, C 854, s. 1. Chap. LIIL] governor and council. 303 accommodation of the chief magistrate of this State for the time being. 4. The governor for the time being shall appoint a private sec- Governor retary, who shall enter, in books for that purpose, all such letters privlie^seT^ * written by and to the governor as are official and important, and retary ,who such other letters as the governor shall think necessary. l^^^ in a^letteV 5. The letter book of the governor shall be deposited in the book. office of the executive, by the private secretary of the governor, Letter book to and there carefully preserved, and it shall be the special duty of the executive"of-^ governor for the time being, to have the said letter books of him- fi^e. self or any of his predecessors in office produced before the Gen- eral Assembly, whenever thereto requested. 6. Whenever the governor shall conceive it necessary to con- Meetings of vene the council of state, such meeting shall be in the city of g^®J°g^^ll °^ Raleigh, unless an invasion, insurrection or contagious disease shall be in Raleigh. render it advisable to call them elsewhere. 7. It shall be lawful for the governor, with the advice of the Governor and council of state, to call a meeting of the General Assembly, if the c°™"^e'^he same shall be absolutely necessary, at a sooner day than the same General As- may stand adjourned to, or appointed to meet. sembly, if ne- •' J ' r sr ^ _ cessary. 8. The governor shall be authorized and required to procure Q^^.gj.jjQj, ^^ for the State a seal, which shall be called the Great Seal of the procure a seal State of North Carolina, to be used for attesting and authenticating ^[^^'^^ ^g^^'^j-^jj. grants, proclamations, commissions and other public acts, in such each court of manner as may be directed by law and the usage established in the '^®°°''°- public offices ; also a seal for each of the courts of record, estab- lished or to be estabUshed in this State, for the purpose of authen- ticating the papers and records of such court when required. 9. Whenever the great seal of the State, or any of the seals ofHemaypro- the courts of record, shall be lost or so worn or defaced as to "^"J® "^'^^ ^^'^^^ 1 ■ r r ^ i ii • i i When neces- render it unnt tor use, the governor shall provide a new one to be sary. used for the same purpose as directed in the last section. 10. The seals provided under the direction of this act shall be How the seals prepared with one side only, and calculated to make the im- ^""^ '° ^^ P"^^' pression on the face of such grant, commission, record or other public act ; and in cases of new seals provided, instead of former ones lost, worn or defaced, such former seals shall not be used in any case after the new ones are procured. 11. The governor is authorized to issue his warrant on the Expense of treasurer for such sum as may be necessary to discharge the ex- se^s, how paid pense of procuring the seals aforesaid ; and he shall cause the said delivered to seals to be dehvered to the proper officers, who shall give a 'h^ P^'opj'i" °f-. receipt for the same and be accountable for the safe keeping to receipt for thereof. 'he same. 4. 1784, c. 224. 5. 1806, c. 702, s. 2. G. 1794, c. 410. 7. 1780, c. 164. 8. 1791, c. 344, s. 1. 9. 1S34, c 24. 10. 1791, c 344, s. 2. 11. 1791, c. 314, s. 3. 304 When a seal to a grant, &c is lost, the gov ernor and council may- order it to be resealed. Compensation of sheriffs for making re- turns of the governor's election. How such compensation to be ascer- tained and paid. Person intend- ing to contest the election of governor, to give notice, &.C. Proceedings thereon. Sheriffs to transmit a du- plicate return of the vote, &c. GOVERNOR AND COUNCIL. [ChaP. LIII. 12. In all cases where any person or persons may find it neces- .sary to have the seal of the State put again to any grant or other public paper, he, she or they may prefer his, her or their petition to the governor and council, who shall, if they shall deem the same proper, after examining such grant or other paper, order and direct the secretary to put the seal of the State thereto, for which he shall be allowed the usual fees. 13. Each one of the sheriffs of the several counties in this State shall hereafter be entitled to receive the sum of two dollars, for each and every day he may be necessarily engaged in making the returns of the elections for governor in his or their respective counties, according to the provisions of the first section of this act, and in travelling to and from the city of Raleigh by the most usual road from and to his residence. 14. The said compensation to sheriffs shall be ascertained and certified by the secretary of state ; and the same shall be passed as pubhc accounts and paid by the treasurer. 15. When any person or persons shall contest the election of any person, who may be elected governor, or may have received the largest number of votes, agreeably to the returns of the respec- tive sheriffs of the State, such person or persons shall in writing give notice to him, whose election he or they intend to contest, of such his or their intention, as well as the specific grounds upon which he or they may intend to contest his election ; setting forth the county or counties, in which he or they allege that spurious or illegal votes were given, or any other invasion of the law or constitution, having relation to the case, shall have taken place, at least thirty days before the first day of December in the year in which such election is held, and also in one or more newspapers published in Raleigh ; and satisfactory proof that such notice has been given shall be required before the General Assembly pro- ceed to inquire into the truth of such allegations : Provided hoio- ever, 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 one or more of the newspapers published in Raleigh, shall be deem- ed sufficient. 16. The sheriffs of the several counties shall, within thirty days after the election for governor, in addition to the returns now required by the constitution, make out and transmit to the secretary of state, a duphcate of the vote for governor in his county, which the secretary shall keep in his office for the inspec- tion of any person wishing to examine the same ; and every sher- iff failing or refusing to make the returns required by the consti- tution, or to transmit the duplicate as herein required, shall forfeit and pay the sum of one hundred dollars, to be recovered in any court having jurisdiction thereof, in the name of mid to the use of the State ; and it is hereby made the duty of the secretary to sue 12. 1791, e. 344, s. 4. 13. 1836, c. 35, s. 1. 14. 1336, c. 35, s. 2. 15. 1836, c. 21, s. 1. 16. 1836, c. 21, s. 2. Chap, LIV.] guardian and ward. 305 for the same ; and such sheriff shall moreover be held and deemed guilty of a misdemeanor, and, upon conviction thereof in any of the superior courts of law in this State, shall be fined at the dis- cretion of the court not exceeding one thousand dollars. 17. Any person who shall vote for governor, other than those Penalty on specified by the constitution, shall in all cases be liable to the same votfngf who fines and penalties as persons are now subject to, for voting illegally ^^J^°^ l*^^!- for members of the house of commons. 18. In future, the speaker of the senate shall open, in the pre- Returns, by sence of a majority of the two houses, the returns for governor, when^to be during the first week in December in which the legislature shall be opened. in session ; and upon a resolution or the suggestion of any mem- ber of either house, such house shall proceed to examine, whether the individual returned as having the largest number is duly elect- ed. Each house shall separately determine all such cases ; and How the elec- unless a majority of each house shall declare the person returned, termined^ ^^' as having the largest number of votes, is not duly elected, then the speaker of the senate, in presence of both houses, shall pro- nounce such person duly elected. 19. It may be lawful for any person to take depositions to be Depositions read in such cases, before two magistrates, which depositions shall -^Yuch con-" have the certificate and seal of the clerk of the county court, in tested elec- which such depositions are taken, setting forth that such persons ^^'*"^' are acting justices of the peace for the county : Provided however^ that no such depositions shall be deemed evidence, unless ten days notice shall have been given to the person, whose election is contested ; which notice shall be given in writing, to be proved by the person dehvering it, who shall depose before a justice of the peace that such notice was delivered by him, setting forth the date of its delivery. If, however, the person whose election is contested is out of the State or not to be found, fifteen days notice given in a newspaper published in Raleigh shall be sufficient. 17. 1836, c. 21, s. 3. 18. 1836, c. 21, s. 4. 19. 1836, c. 21, s. 5. CHAPTER 54. GUARDIAN AND VTARD. an act concerning the appointment of guardians and the management of orphans and their estates. Section 1 . A father may, by deed or will, appoint a guardian for his children. 2. The superior and county courts to VOL. I. 39 Section have cognizance of all matters rela- ting to orphans and their estates — to appoint guardians and take bonds 306 GUARDIAN AND WARD. [ChAP. LIV. Section — Justices liable for taking insuffi- cient security— Proviso. 3. Guardian bonds, how payable, and remedy upon them. 4. Clerks to enter upon their dockets the names of the justices on the bench when guardian bonds are taken — Proviso for a justice present, but not concurring. 6. Guardians may be appointed to take charge of the property of children, whose fathers are alive. 6. One bond only to be taken from the guardian of orphans, who have pro- perty in common. 7. Guardian bonds to be renewed once in every three years— Summons to guardians failing to renew. 8. Duty of the clerks of the superior courts as to guardians appointed by such courts, and failing to settle their accounts and renew their bonds — Clerks of the county courts to issue notices to such guardians. 9. Duty of guardians in taking posses- sion of the estate of their wards. 10. Guardians to render an account of the estate of their wards upon oath. 1 1 . Orphan's court to be held — All guar- dians to render accounts annually — Clerk to issue ex officio summons to guardians failing to render their accounts. 12. Clerk's fee for issuing summons to guardian, and how collected. 13. Guardians, by order of court, to sell the perishable estate of their wards — To lend out the money of their wards upon bond or note — To ac- count for interest annually — Bonds to bear compound interest — may be assigned to wards upon their com- ing of age. 14. In what cases slaves and stock to Section be kept on ward's land — Proviso, where stock becomes loo numerous. 15. In what cases ward's land and slaves to be rented and hired out — How land to be rented. 16. Sales, &c. of ward's estate, how to be made. 17. Penalty upon a guardian for suiTering his ward's land to lapse or become forfeited by the non-payment of taxes or other dues. 18. Power and duty of the courts where guardians mismanage their wards' estates, or when they and their sureties are likely to become insol- vent. 19. Grand jury to present all orphans without guardians, and all abuses of guardians. 20. Remedy for sureties of guardians when such sureties are likely to suffer. 21. Remedy against guardians by peti- tion. 22. Guardians to be allowed disburse- ments and expenses, and also com- missions. 23. 24. 26. 27. Guardians of orphans removing to or residing in other states, how to ob- tain the personal estate of their wards in this State out of the hands of their guardians in this State. How to proceed when there is no guardian in this State. Power of the court of equity, in rela- tion to orphans and their estates, not to be abridged. A court of equity may direct a sale of the real or personal estate of in- fants, if such sale would promote the interests of the infants. Manner in which sale shall be made — How the proceeds to be applied and secured. 1 . Be it enacted by the General Assembly of the State ofJ^orth Carolina, and it is hereby enacted by the authority of the same, bydeed'"orwili, That where any person hath or shall have any child or children appoint a guar- under the age of twentyone years, and not married, it shall be cMdren. ^ lawful for the father of such child or children, whether born at the time of his death, or in ventre sa mere, or whether such father be within the age of twentyone years or of full age, 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 shall think fit, to dispose of the custody and tuition of such child or children for and during 1. 1762, c. 69, S.2. Chap. LIV.] guardian and ward. 307 such time as he, she, or they shall remain under the age of twen- tyone years, or for any less time, to any person or persons, and every such disposition shall he good and effectual against all and every person and persons, claiming the custody and tuition of such child or children as guardian in socage, or otherwise, and the per- son or persons to whom such custody or tuition shall be so dis- posed or devised, shall have the same powers, rights and privileges, and be subject to the same liabihties, rules and regulations as other guardians. 2. The several superior courts of law, and the courts of pleas The superior and quarter sessions, within their respective counties, shall have '^"^ ''°"'^,ty r 1-1 ] 1 • c • • 1 • ^court, to nave lull power and authority Irom time to lime to take cognizance ot cognizance of all matters concerning orphans and their estates, and to appoint all matters re- guardians where none have been appointed by the father, as pre- phans and scribed in the preceding section, and where to them it shall appear ^'^"'" ^^f'^^^S"" necessary, and shall take good security of all the guardians by guardians and them to be appointed for the estate of the orphans by them com- ^^^^ bonds. milled : And if any court shall commit an orphan's estate to the charge or guardianship of any person or persons, without taking good and sufficient secui-ity for the same, the justice or iuslices Justices liable o _ _ , •' . *' ^ lor taking in- appointing such guardian shall be liable for all loss and damages sufficient se- sustained by the orphan for the want of such security being taken, cunty. to be recovered by action at the common law, in any court of re- cord in which the same is cognizable, at the suit of the party griev- ed. Provided always, that where the securities were good at the^'^"^^®"' time of their being taken or accepted, but afterwards became in- solvent, in such case the justice or justices shall not be hable. 3. All bonds taken from guardians shall be taken and made pay- Guardian bonds able to the Stale of North Carohna, which bonds the court shall ^°^ payable , , 1 1 1 1 r 1 1 11 1 and the remedy cause to be acknowledged beiore them and recorded ; and any per- upon them, son injured may, at his and their proper costs and charges, com- mence and prosecute a suit against such guardian and his securities^ his or their heirs, executors or administrators, and may recover all damages and costs which he, she or they have sustained by reason of the breach of the condition thereof : and if judgment shall be rendered in favor of such guardian or his securities, the person at whose instance such suit shall be commenced or prose- cuted shall pay costs. 4. It shall be the duty of the clerks of the county courts, and they Clerks to enter are hereby required to make a record of, and enter at large on their docket the dockets, the names of the justices of the court who shall be pre- names of the sent at the granting of any guardianship, and approving of the securi- bencrwhen ^ ties lo the guardian bond ; and it shall also be the duly of the clerk guardian bonds to certify upon the said bond the names of the justices present in "® ^^ ®^" court and granting such guardianship ; and no justice of the peace, to whom any guardianship shall be committed, shall be permitted to vote or sit on the bench at the time of the said appointment : proviso for a Provided always, that any justice of the peace, present and not con- justice present 2. 1762, c. 69, s. Sand 6. 3. 1762, c 69, s. 7.— 1825, c. 1235, s. 2.— 1833, c. 17. 4. 1825, c. 1285, S. 3. 308 GUARDIAN AND WARD. [ChAP. LIV. but not concur- curring in the grant of such guardianship, or in the acceptance of "^§'' the securities offered by the guardian, may require, and on his re- quest the clerk shall record on the minutes and certify on the bond that such justice does not concur in such appointment, or in the acceptance of the sureties offered, and such certificate and entry shall exempt such justice from liabiUty on account of such bond. Guardians may 5. The superior and county courts shall and may appoint a fit take^charge of° snd proper person to take the care anB management of the estates, the property of real and personal, rights and credits, of any person under the age fathers\re °^^ of twentyone years, who shall be seized or possessed of any estate alive. real or personal, or entitled to any such estate, although the father of such minor may be living. And the person so appointed shall enter into bond with surety, as required (by the preceding sections of this act) of guardians of orphans, and shall have the same au- thority as guardians, and be governed in all respects by the laws relative to guardians and orphans, so far as respects the property and rights of orphans, but shall not have any care of or authority over the person of such minor by virtue of such appointment. One bond only Q. When the Same person is appointed guardian to two or more from the guar- minors, possessed of an estate in common, it shall be lawful for dian of orphans thg court of pleas and quarter sessions by which he was appointed, ^ty incom- should the court deem it proper to accept of said guardian, to take "ion- one bond only for the execution of his trust, upon which bond each of the minors or any other person entitled may commence and prosecute the same remedies as though several bonds had been given in trust for each of the said children. And the clerk taking the said bond shall not demand or receive more than a sin- gle fee for the same. Guardian bonds 7. All guardians of every description, from whom bonds are once in evInT required, shall renew their respective bonds in the several county three years, courts every three years during the continuance of their respective summons^tr^ guardianship : and it shall be the duty of the clerks of the several guardians county courts to issue an ex officio summons against each and every jww ^° ^^' guardian, in whatsoever county he may reside, who shall fail to comply with the requisitions of this section ; and upon a return made of the service of such summons that the guardian is not to be found, an alias shall issue, and if upon the return of such alias summons the guardian is not to be found, it shall be the duty of the court to remove such guardian from office and to appoint a successor to him or them so removed, and to take bond with good and sufficient security, to be approved of by the said court, from the succeeding guardian, unless the former guardian shall, at the court to which such summons shall be returned, appear and com- ply with the requisitions of this section. Provided always, that no prosecuting officer shall be entitled to charge a fee in any such case. Duty of the 8. It shall be the duty of the clerks of the superior courts of clerks of the j^w to render to the clerks of the county courts, annually, at the superior courts •' ' •' ^ 6. 1806, c. 707, s. 1. 6. 1822, c. 1161, s. 1 and 2, 7. 1820, c. 1039, s. 1 and 2.— 1824, c. 1546. 8. 1825, c. 12SS, s. 1 and 2. Chap. LIV.] guardian and ward. 309 first court which shall be holden in each and every county after the as to guardians first day of January, a list of the names, setting forth therein the 3^^^™^^,^^^''^ times of appointment, of all persons who shall have been appointed and failing to guardians by the courts of which they are respectively clerks, and coums^and re- who shall not have made a final settlement with his or her ward ; new their and it shall be the duty of the clerks of the county courts to issue °" ^" an ex officio summons to all guardians, appointed by any of the county court^to superior courts, who shall fail to appeal' and settle their respective issue notices accounts and renew their bonds, under such rules, regulations and j-^t^J] ^^^'^' restrictions as are prescribed above for issuing summonses against delinquent guardians in the county courts. 9. Every person, to whom the guardianship of any child has Duty of guar- been or shall be committed in either of the modes above mentioned, po^sessioiTrf ^ shall take into his possession, for the use of such child or children, the estate of the profits of all lands, tenements and hereditaments, and also all ^ wards, the slaves, goods and chattels and other personal estate of such child or children, and may bring such actions in relation thereunto as by law a guardian in common socage might do. 10. It shall be the duty of every guardian appointed as afore- Guardians to said, at the next court alter his appomtment, to exhibit an account count of thees- upon oath of all the estate of the child or children committed to tate of their his care, which he shall have received into his hands or posses- o\a.^ "^"'^ sion ; and every guardian shall annually exhibit his account and state of the profits and disbursements of the estate of such orphan upon oath, and such accounts so to be exhibited shall be entered by the clerks in particular books to be provided and kept for that purpose only. 11. The justices of every court of pleas and quarter sessions Orphan's court respectively, shall, on the first day of the court that shall be held '" ^^ held. next after the first day of January in every year, hold an orphan's court for the purpose aforesaid ; and every guardian, whether j^^i o-uardians appointed by deed or will, or by any court, shall exhibit such 10 render ac- account as aforesaid ; and the justices of every court shall at the dually '^'^' same court examine into all accounts of guardians, so to be exhibited to them ; and it shall be the duty of the clerk of the Clerk to issue court, under the penalty of one hundred dollars to be applied to the ^^ "-^"^ s"™- c 1 1 • /r • 11 1 mons to guar- use 01 the ward, to issue ex ojjicio summonses, returnable to the dians failing to next court, against all guardians, whether resident in the same or ''™'*" ^^^i*" ^'^- ^ o o ■' ^ counts any other county, who shall fail to appear and exhibit their accounts as aforesaid ; and if any such guardian shall wilfully neglect, after being summoned as aforesaid, to appear, or obsti- nately refuse to exhibit such account, it shall and may be lawful for the court to issue an attachment for such contempt, and to com- mit such guardian until he or she shall exhibit such account. 12. The clerk for issuing the summons as in the last section Clerk's fee for directed, shall be entitled to demand and receive the sum of sixty mon's"to^"'^" cents, to be collected by the sheriff or other officer at the time of dian, and how serving said summons, and accounted for to the clerk at the return ^^oll^^ted. 9. 1762, e. 69, s. 3. 10. 1762, c. 69, S. 9.; 11. 1762, c. 69, s. 15.— 1516, c 905, s- 1 and 2. 12. 1816, c. 905, s. 3. ""'^--v 310 GUARDIAN AND WARD. [ChAP. LIV. of the same. Provided, that nothing herein contained shall be construed to subject to payment of costs aforesaid any guardian, who may have, before the return of such summons, finally settled with his ward, or will make it appear to the court that he was pre- vented by sickness or other unavoidable cause from exhibiting his account as aforesaid. Guardians, by 13. Every guardian, as soon as conveniently the same may be to sdUhTper- ^one, shall, by order of the superior or county courts, sell and ishable estate dispose of all such ffoods and chattels of his or her ward as are or o eir wards, j^^y ^^ liable to perish, consume, or be the worse for keeping, (except in the instances hereafter mentioned,) for the most that can be got for the same, by public sale, having first advertised the same at the court house and three other public places in the coun- ty, at least twenty days before the sale, in reasonable lots, and shall for enhancing the price thereof give six months credit upon good security given ; and such guardian, after the time of such payment is past, shall take and pursue all lawful ways and means to receive and recover the money, upon pain of being answerable for the same ; and if the same cannot be received before the orphan entitled to receive such money shall have right to demand it, or such guardian shall be removed from his guardianship, he or she shall and may as- sign such bond to such orphan, and such assignment shall discharge such guardian for so much against him or her. And where the money of their profits of any Orphan's estate shall be more than sufficient to main- wards upon tain and educate him or her, the guardian of such orphan shah lend to account for the surplus and all other sums of money in his hands, belonging to interest an- guch orphan, upou bond or note with good and sufficient security Bonds to bear to be repaid with interest, which interest such guardian shall ac- compound in- count for annually ; and to enable him to do so, all the bonds, be assigned to notes and Other obligations which he takes as guardian shall bear wards upon compound interest ; and when the person or persons to whom such their coming oi i n i i i • • • vi i i • i age. money shall be lent or their securities are likely to become insol- vent, such guardian shall use all lawful means to enforce the pay- ment thereof, on pain of being liable for the same as aforesaid ; and an assignment of such last mentioned bond in either of the afore- 1 mentioned cases shah discharge such guardian for so much as is due thereon. In what cases 14. Where any orphan shall have lands, and a sufficient number stoc^to'be kept ^^ slaves to Cultivate and improve the same, such slaves, unless on ward's land, otherwise Ordered by the superior or county courts, shall be em- ployed on the lands and plantations of such orphan ; and all neces- sary horses, cattle, sheep and hogs shall be kept upon such lands and plantations of such orphan until he shall come of age ; and he or she shall have the benefit of the increase and shall sustain the Proviso where loss, if any shall happen. Provided nevertheless., that if any such stock grow too numerous, or if it shall be to the advantage of such orphan, his or her guardian shall and may sell, by order of the superior or county court, such part of such stock as such court 13. 1762, c. 69, S. 10.— 1793, c. 391, s. 1.— 1816, c. 925. 14. 1762, c. 69, s. U and 12. stock becomes loo numerous. Chap. LIV.] guardian and ward. 311 shall think fit ; and all plate shall be preserved and delivered to such orphan, when at age, in kind according to weight and quantity. 15. It shall be the duty of every guardian, where it is not in what cases deemed to be the interest of the orphan to employ the slaves of anJ sieves to such Orphan upon his or her lands and plantations, to hire out the be rented and slaves and rent out the lands of such orphan. Provided always, ^'^^ °^^' that no guardian shall let or farm out any land belonging to any jj^^ ^ , , orphan, for a longer term than the orphan be of age, or in other rented. manner than by lease in writing, and that special care be had that the tenant shall improve the plantation, and that he or she keep the houses, orchards and fences thereon, or that shall be erected on the same, in good and sufficient repair, and leave the same so at the expiration of such lease, and that provision be made in such lease for preventing all kind of waste and employing any timber to any other use, than the immediate use of the plantation. 16. All sales, hirings or rentings, made by guardians of their Sales, &c. of orphans' property, shall be made and conducted in the same man- how to be^^*^' ner and under the same rules, regulations and restrictions, and made, penalties for disobedience, as prescribed for sales of deceased persons' estates made by administrators. 17. If the guardian of any orphan shall suffer his or her lands Penalty ujjon a to lapse or become forfeited, or be sold for the non-payment of f "^g^/^" j^°g taxes or other dues, such guardian shall be liable to answer the full ward's land to value of the lands, so forfeited or sold, unto such orphan at his or come forfcited her coming of age. And if it shall so happen that any orphan by the non- shall not have slaves to cultivate his or her lands, or it is not ^es or^o°ther deemed best that they should do so, and the guardian of such dues. orphan cannot rent the same for sufficient to pay and discharge the taxes and other dues thereof, and there shall not be personal estate sufficient for that purpose, it shall be lawful for such guardian, with the consent of the superior or county court, annually to sell or dispose of, or use so much of the light wood, to box so many pine trees, or to sell so much of the timber on the same, as shall raise sufficient to pay and satisfy the taxes and other dues thereon and no more. 18. When any of the superior or county courts shall know or Power and du- be informed that any guardian or guardians, by them respectively courL where appointed, or any guardian appointed by will or deed, do waste or guardians mis- convert the money or estate of any orphan to his or their own use, wanL^^estates or do in any manner mismanage the same, are about or intend to or when they marry him or her in disparagement, or neglect to educate or main- ^^^ areTikely" tain any orphan according to his or her degree and circumstances, to become in- or where any such guardian or his securities are likely to become ®° ^®"''' insolvent, such court shall have power from time to time, and at all times when they think proper, to make and establish such rules and orders, for the better ordering, managing and securing such estates, and for the better education of and maintaining such orphans, or to appoint another guardian, as they shall think fit and convenient. 15. 1762, c 69, s. 13, amended. 16. 1794, c. 413, s. 1 and 2. 17. 1762, C 69, S. 14. 18. 1762, c. 69, s. 4, 9 and 16. 312 GUARDIAN AND WARD. [ChAP. LIV. Grand jury to present all or- phans without guardians, and all abuses of guardians. Remedy for sureties of guardians, when such sureties are likely to suf- fer. Remedy against guar- dians by pe- tition. Guardians to be allowed dis- bursements and expenses, and also com- missions. Guardians of orphans re- or 19. The grand jury of every county in this State shall, annually at the orphan's court to be holden for their counties respectively, be charged with and present to the justices thereof in writing the names of all orphan children within their county, that they shall know have not guardians appointed them, and are not bound out to some trade or employment, and all abuses, mismanagements and neglect of such guardians as hve within their county. 20. Where any person, who is security for the estate of any orphan, shall conceive himself in danger by reason thereof, and pethion the court where such security was entered into for relief, it shall be lawful for such court upon petition to them exhibited, forthwith to order summons to issue against the party or parties, with or for whom the petitioner stands bound, returnable to the next court, and thereupon to compel such party or parties to give sufficient other or counter securities, to be approved by the said court, or to deliver the said estate to the said petitioner or such other persons as the court shall direct, or they may and are hereby empowered to make such other order or rule therein, for the relief of the petitioner and better securing such orphan's estate, as to them shall appear just and equitable : Provided always, that the court shall take good and sufficient security of the person or per- sons to whom such estate shall be so committed, in like manner and under the like penalty as is by this act required to be taken of guardians appointed by the court, and every such person shall so exhibit his account and be subject to the rules and orders of the court, in the same manner, to all intents and purposes, as is herein before required of guardians, or they are made subject unto. 21. In addition to the remedies on their bonds, the same reme- dies may be had against guardians by petition, either in the supe- rior or county courts, in every respect, as against executors and administrators. 22. It shall and may be lawful for every guardian to charge in his account all reasonable disbursements and expenses, and if, up- on rendering such account, it shall appear to the court that such guardian hath really and bona fide disbursed more in one year than the profits of the orphan's estate do amount unto, for the education and maintenance of such orphan, such guardian shall be allowed and paid for the same out of the profits of such orphan's estate in any other year. Provided always, that such disbursements be in the opinion of such court suitable to the degree and circumstances of the estate of such orphan. The court shall likewise allow com- missions to the guardian for his time and trouble in the manage- ment of the orphan's estate, in the same manner and under the same rules, regulations and restrictions as allowances are made to executors and administrators. 23. Where any orphan or orphans, residing in any other state or territory, or who may have removed from this to any other 19. 1762, c 69, s. 17. 20. 1762, c. 69, s. 21 and 22. 21. 1762, c, 69, s. 23. 22. 1762, c. 69. s. 18 and 19.— 1799, c. 536, s. 2. 23. 1S20, C. 1044, s. 1. Chap. LIV.] guardian and ward. 313 state or territory, shall be entitled to any personal property in residing in this State, by bequest, gift or as the next of kin to any person ^o^^^f otTtam dying intestate or otherwise, it shall and maybe lawful for any the personal es- guardian or guardians of such orphan or orphans, regularly appoint- ^ardf ilftTis ed in the State where they reside, upon producing a copy of his, State out of her or their appointment, properly authenticated, and upon mak- Ij^^-^. '^^j^^^j^'-j^jj ing it appear to the court of the county, in which the property in this State, may then be, that security has been given in a sum amply sufficient to cover all the personal estate, to which said orphan or orphans may be entitled, and also the profits of the landed estates if any, to call upon any executor, administrator or guardian, having in his or her possession any personal estate, to which the said orphan or orphans may be legally entitled, or any moneys or debts for which he or she may be hable to account, rents of the landed estate, hire of negroes or otherwise, for a settlement by petition or bill in equity in the usual way, and it shall be the duty of the said execu- tor, administrator or guardian to account with such guardian, so as aforesaid appointed, as fully and completely as they would be bound to account with the orphans themselves were they of law- ful age : Provided, nothing herein contained shall be construed to compel any executor or administrator to account in a shorter peri- od than they are now by law bound to do, or to exempt such guardians from giving the usual refunding bonds. 24. Upon any guardian or guardians producing to the court of How to pro- the county, in which there may be any personal estate beloneins 'r^^'^ '^^®" , . ■'/ . , 1 "^ 1 • ^ 1 - r 1 • 1 .° there IS no to his or their ward or wards, authenticated copies oi ms or their guardian in appointment by the proper authority of the state or territory, in ^^^^ ®^^^^- which the said ward or v^^ards may reside, and it so happens that there is no guardian at the time in the county in which the said estate may then be, it shall be lawful for such guardian or guardians, upon filing in said court authenticated copies of their appointment as guardians, and making it appear to the said court that security has been given as required in the preceding section, to take said property into his or their possession, and to remove it to the state or territory in which their ward or wards may reside. 25. Nothing contained in any of the sections of this act shall be Power of the construed to restrain or abridge the power of the court of chancery, li^'Velation to in any matter or thing relating to orphans or their estates, but the ^phans and • J ^ 111 • 1 • 1 ..,. . their estates, said court may nolcl, use, exercise and enjoy the same jurisdiction, not to be power and authorities therein, in as full and ample manner to all abridged, intents and purposes, as if this acft had never been made, anything herein contained to the contrary nowithstanding. 26. It shall be lawful, on application of the guardian of any in- A court of fant by bill or petition to a court of equity, setting forth facts which, re"t a'sde'^'o'f ' if true, shew that the interest of the infant would be materially and the real or per- essentlally promoted by the sale of any part of such infant's estate, ^rXntrif Ldi real or personal, for the said court to cause the truth of such facts sale would pro- to be ascertained, and thereupon to decree that a sale be made by "restof^ the in- fants. 24. 1820, c. 1044, s. 2. 25. 1762, c. 69, s. 26. 26. 1827, c. 33, s. 1. VOL. I. 40 314 HABEAS CORPUS. [Chap. LV. Manner in which such sale shall be made. such person, in such way and on such terms, as the court in its wisdom shall adjudge. 27. No sale, made under a decree as aforesaid, shall be valid until the same shall be subsequently ratified by the court ordering the sale ; no conveyance of title shall be made until the said court shall order such conveyance ; the person to make the title shall How the pro- be designated by the court ; and the proceeds of the sale shall be *^r d^ ^°A^ ^^ exclusively applied and secured to such purposes, and on such cured. trusts, as. the court, when it ratifies the sale, shall specify and di- rect : Provided always, and it is hereby enacted that whenever, in consequence of a sale as aforesaid, the personal or real estate of the infant is saved from demands, to which in the first instance it might be liable, it shall be the duty of the com't to declare and set apart a portion of said personal estate, or real estate thus saved, of equal value to the real and personal estate sold, as property pur- chased by such sale ; and in all instances of sale under this act, whereby real is substituted by personal, or personal by real proper- ty, the beneficial interest in the property acquired shall be enjoyed, alienated, devised and bequeathed, and shall descend and be dis- tributed, as by law the property sold might and would have been, had it not been sold, until a vahd disposition, according to the character thus impressed upon it, shall be made thereof by the equitable owner. 27. 1827, c. 33, s. 2. Note. — References to Adjudged Cases. Sect. 1. Long vs. Rhymes, 3 Murph. 122. Sect. 2. Mills vs. McAlister, 1 Hay. 303. West vs. Kitrell, 1 Hawks, 493. Davis vs. Somerville, 4 Dev. 382. Harris vs. Richardson, ib. 279. Sect. 11. Branch vs. Arrington, 2 Car. Rep. 252. Wood vs. Brownrigg, 3 Dev. 420. Sect. 16. County court of Randolph vs. Johnson, 3 Hawks, 238. Sect. 18. Bray vs. Brumsey, 1 Murph. 227. Sect. 20. Foy vs. Bell, 1 Dev. and Bat. 475. CHAPTER 55. HABEAS CORPUS. AN ACT FOR THE BETTER SECURITY OF PERSONAL LIBERTY. Section 1. How a writ of habeas corpus maybe obtained in vacation. 2. Duty of the officer or other person to whom the writ is directed. 3. Duty of the judge, on the return of the writ. Section 4. Application for the writ must be made within two terms after im- prisonment. 5. When the superior court is sitting, the writ must be returned in open court. Chap. LV.] HABEAS CORPUS. 315 Section 6. Penalty on a judge for refusing a writ of habeas corpus. 7. Penalty on the officer to whom such writ is directed, for refusing or ne- glecting to obey it. 8. Penalty for again imprisoning a person released on a writ of habeas corpus. Section 9. When persons committed for treason or felony shall be entitled to a trial or discharge. 10. Same remedy by habeas corpus shall be had by persons imprisoned for other causes than criminal charges. 1. Be it enacted by the General Assembly of the State ofJ^orth Carolina, and it is hereby enacted by the authority of the same, Tliat if any person shall stand committed or be detained for any How a writ of '', ^ . . ■ 1 n 1 1 c 1 r 1 habeas corpus crime, m the vacation time, it shall be lawlul tor such person, so may be ob- coramittedor detained (other than persons convicted, or in execu- 1?"^^*^ ^'^ ^^'=^" tion by legal process,) or any one on his behalf, to complain to one of the judges of the supreme court or to one of the judges of the superior courts of law and equity, and the said judge, on view of the copy of the warrant of commitment, or otherwise on oath that it was denied, is authorized and required, on request in writing by any such person, or any in his behalf, attested and sub- scribed by two witnesses, who were present at the dehvery of the same, to grant a habeas corpus, to be directed to the officer or other persons in whose custody the party shall be, returnable im- mediately before the said judge. 2. Whenever any writ of habeas corpus, issued as aforesaid, P^^y °f *^ °f" iicGr or otficr shall be served on any officer or other person, having in his cus- person to tody the person in whose behalf such writ is issued, or be left at yKo."^ ^H ^"'' ... IS dirGCtCQ. the jail or prison with any of the under officers, under keepers or deputies of the said officers or keepers, it shall be the duty of the said officer or officers, his or their under officers, under keepers or deputy, or the person having the custody of the person claiming as aforesaid, without delay, unless the commitment were for treason or felony, plainly and specially expressed in the warrant of com- mitment, to bring or cause to be brought the body of the party so committed or restrained, unto or before the judge of the supreme court or judge of the superior courts of law and equity, by whom the said writ was issued, or such other person, before whom the said writ is made returnable, according to the command thereof, and, in case of the absence of such, before any one of the judges 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 the party being brought before him, the judge before whom the pris-lefu^,.^ °f the oner shall be brought as aforesaid, shall discharge the said prisoner writ, from his imprisonment, as the case may require, either absolutely without bail, or taking his recognizance with one or more sureties in any sum, according to his discretion, having regard to the cir- cumstances of the prisoner and nature of the oftence, for his appearance at the next term of the court, wherein the offence is properly cognizable, and then shall certify said writ with the return 1. 31 Ch 2, c. 2, s. 2. 2. 31 Ch. 2, c. 2, s. 1. 3. 31 Ch. 2, C. 2, S. 3. 316 HABEAS CORPUS. [ChAP. LV. thereof, and the recognizance into such court, unless it be made appear to the said judge that the party so committed is detained upon a legal process, order or warrant out of some court that has jurisdiction of criminal matters, or by some warrant, signed and sealed with the hand and seal of any of the judges of the supreme court or the superior courts of law and equity, or some justice or justices of the peace, for such matters or offences for the which by law the prisoner is not bailable. Application for 4. If any person shall have wilfully neglected for the space of be^made within two wholc terms, after his imprisonment, of the superior court of two terms after the county, in which he maybe imprisoned, to pray a habeas impnsonmen . ^^j^p^^g f^y. jjjg enlargement, he shall not have a habeas corpus to be granted in vacation time in pursuance of this act. When the su- 5. While the superior court of law for the county, where the penor court is p^goner is detained, shall be in session, no person shall be re- sitting, the ^ , f . ' . ., {^ u . J • writ must be moved irom the common jail upon any habeas corpus granted m returned in pursuance of this act, but upon such habeas corpus shall be brought open court. f ,.,.' ^ ini^ , i° belore the judge m 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 act. Penalty on a Q_ If any of the iudees of the supreme court or of the superior nin 0^p TOT* rG" fusing a writ of courts of law, in the vacation time, upon view of the copy of a habeas corpus, warrant of commitment or detainer, or on oath made that such copy was denied, shall deny any writ of habeas corpus, by this act required to be granted, being moved for as aforesaid, he shall for- feit to the party grieved two thousand five hundred dollars. ■ Penalty on the 7. If any officer or other person, to whom a writ of habeas suclTwrVL X^o'^P"^ s^^^^ ^^ directed as aforesaid, shall neglect or refuse to rected, forre- make the returns as aforesaid, or to bring the body of the prisoner lectTngTo "bl'y according to the command of the said writ, without delay, or shall it. 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 offence five hundred dollars, and for the second offence one thousand dollars, and be rendered incapa- ble to hold his office. Penalty for 8. No person, who shall be set at large upon any habeas corpus, omuearorsOT ^^^^^^ ^^ again imprisoned for the same offence by any person released on a whatsoever. Other than by the legal order and process of such court, wherein he shall be bound by recognizance to appear, or other court having jurisdiction of the cause, under the penalty of two thousand five hundred dollars, to be recovered by action of debt, in any court having jurisdiction of the same, by the party aggrieved, to his own use. When persons 9, If any person, who shall be committed for treason or felony, treason or fel- plainly and specially expressed in the warrant of commitment, ony shall be enti^tled to a ^^ 31 ch. 2, c. 2, s. 4. trial or dis- 5 3j ,.h. 2 e. 2 s. 8. Charge. g ^^ ^h. 2, c. 2, s. 10. 7. 31 Ch. 2, c. 2, s. 5. 8. 31 Ch. 2, c. 2, s. 6. 9. 31 Ch. 2, c. 2, s. 7. writ of habeas corpus CHA.P. LVL] HUNTING. 317 upon his prayer or petition in open court to be brought to his trial, shall not be indicted some time in the next term (after such com- mitment) of the court having jurisdiction of his offence, the judge of the said court shall, upon notice in open court the last day of the term, set at liberty the prisoner upon bail, unless it appear upon oath that the witnesses for the State could not be produced the same term ; and if such prisoner, upon his prayer or petition as aforesaid, shall not be indicted and tried the second term, he shall be discharged from his imprisonment. 10. When any person shall be imprisoned or otherwise re- Same remedy strained of his liberty, for any other cause than the commission of^y ^^'^^^^^j a criminal offence, unless he shall have been committed in execu- had by persons tion upon some leeal civil process, or upon some mesne process in ™J"^iso'^6'i for ^ " -^ -t^ ■*- OtllCr C3,US6S a civil action, on which he was liable to be arrested and imprisoned, than criminal and on which excessive and unreasonable bail shall not have been '^^'^^^es- required, such person shall be entitled, on application by himself or any person in his behalf, and upon its appearing by affidavit that there is a reasonable ground for the complaint, to the same remedy by writ of habeas corpus, subject to the same rules, regulations and restrictions in every respect, as are prescribed in the pre- ceding section of this act ; and the judge, to whom apphcation is so made, and the officer or other person, to whom such writ may be directed, shall be subjected to the same penalties and punish- ments for refusal or neglect to discharge their several duties as are there prescribed. 10. 56 Geo. 3, c. too.— Amendment. >r^1c/./ooir ni,^'^'^^' CHAPTER 56. HUNTING. AN ACT CONCERNING HUNTING. Section 1 . Not lawful to kill any wild deer be- tween the twentieth of February and the fifteenth of August. Section 2. Not lawful to hunt on the lands of another after advertisement post- ed up forbidding it — Time within which to sue. 1. Be it enacted by the General Assembly of the State of JVorth Carolina^ and it is hereby enacted by the authority of the same, That it shall not be lawful for any person to kill or destroy anykm^ny wiW deer, running wild in the woods or unfenced grounds in this State, f^eer between ' the 20th of 1. 1784, c. 212, s. 4 and 7. 318 IDIOTS AND LUNATICS, [ChAP. LVII. February and the 15 th of August. Not lawful to hunt on the lands of anoth er after adver- tisement post- ed up forbid- ding it. Time within ■which to sue. by gun or otherwise, between the twentieth day of February and the fifteenth day of August then next succeeding in each year, unless on his own lands ; and if any person shall kill or otherwise destroy any deer, within the time before described and contrary to the meaning and intent of this act, every such person shall forfeit and pay for each and every deer, so unlawfully killed or destroyed, the sum of four dollars, to be recovered before any justice of the peace, and applied one half to the informer and one half to the poor of the county ; and in case any slave shall kill or destroy any deer, between the twentieth day of February and the fifteenth day of August in any year, the owner of such slave shall be liable to pay the sum of four dollars for each deer so unlawfully killed or de- stroyed, to be recovered and apphed as in the preceding clause of this section. ". 2. It shall not be lawful for any person to hunt, with a gun or with dogs, on the lands of any other person, without leave obtained from the owner of said land, under the penalty of forfeiting ten dollars for every offence, to be recovered by the owner before any justice of the peace of the county where such offence is committed or the offender resides, and applied one half to his own use and one half to the use of the poor of the county : Provided, that no such recovery shall be had for such offence, unless the owner of the land shall, by advertisement posted up in two or more public places, have forbid the person so hunting by name, or all persons general- ly, to hunt on his land, previous to the commission of the offence : Provided also, that no recovery shall be had in any case whatever, unless the prosecution is commenced within one month after the offence is committed. 2. 1784, c, 212, s. 5 and 7, amended. CHAPTER 57. IDIOTS AND LUNATICS. AN ACT CONCERNING Section 1 . County courts to appoint guardians to idiots and lunatics — How idiocy or lunacy to be ascertained. 2. When county court may order a sale of the real estate of idiots or luna- tics. 3. For what purpose and in what man- IDIOTS AND LUNATICS. Section ner the court of equity may order a sale of the real estate of an idiot or lunatic — Provisos. 4. Court of equity may order a sale where the idiot's or lunatic's land is wanted for public purposes — Proviso. 1. Be it enacted by the General Assembly of the State of JVorth Carolina, and it is hereby enacted by the authority of the same, That it shall and may be lawful for every county court, whenever 1. 1784, c 228. I Chap. LVIL] idiots and lunatics, 319 ( any idiot or lunatic, possessed of property either real or personal, County courts shall be within the jurisdiction thereof, to appoint him or her a^,a?Jia™sto guardian, taking bond for the faithful administration of the trust idiots and lu- reposed in him or her, in the same manner as bonds are taken from'^'^ ^'^^^ the guai'dians of orphans, and such guardians when so appointed shall continue during the pleasure of the court, and shall have the same powers to all intents, constructions and purposes, and shall be subject to the same rules, orders and restrictions as guardians of orphans appointed by the court, such idiocy or lunacy to be How idiocy or ascertained by the inquisition of a jury, by virtue of a writ to be ^""'^'^7 .*° |j^ •' 1 lxO 60 ^^^»^ ^il^h^ Chap. LVIII.] insolvent debtors. 321 Sectio-n 1st jMay, 1523, how to procure their discharge — To give bond with se- curiiy for theiir appearance at court — Proceedings thereupon . 8. Debtor tendtering bond, to be dis- charged. 9. Surety may surrender his principal. 10. Debtor, having given ten days' no- tice, shall, upon motion, be permitted to take the oath for the relief, &c. — If creditor suggests fraud, issue to be made up — Debtor may be exam- ined upon oath — Appeal allowed. When the jury finds fraud, the debt- or to be imprisoned until he makes a full and fair dL-iclo£ure — Upon making such disclosure, may take the oath. Debtor to file schedule with the clerk ten days previous to the silting af the court. When creditor resides out of this State, to whom and how the debtor ma.y give notice. 14. Property, debts &c. contained iu any 11. 12. 13. Section scliedule, to vest in the sheriffof the county where such schedule may be filed — Sheriff's duty thereupon. !&■. Court to apj)oint commissioners to divide the debtor's effects among bis creditors. 16-. Debtor, after his discharge, not to be arrested again, but an exgcution may issue against his properly after- wards acquired. 17. Debtor swearing falsely, to be guilty of perjury. No female to be imprisoned for debt. Debtor having takeu the benefit of prison bounds, may take the benefit of this act without going into close prison. Any creditor notifted, may- suggest fraud, and any other creditor may make himself a party to the issue- Any one or more of the creditors may appeal without the others. 2.1. After issue made up, the debtor shall not discharge himself, but by trial or consent. IS 19 20. 1. Bk if enacted by the General Assembly of the State of JVorth Carolina, and it is hereby enacted by the authority of the same, That if any person or persons, as well free persons of color as Debtors re- others, shall be taken or charged on mesne process or execution '^'^ining; in for any debt, and shall have remained in. prison by the space of twenty^days, twenty days, it shall be lawful for two iustices of the peace, or the may prefer a /^ri 1 ^ ■ r^i'i petition to two county court oi pleas and quarter sessions, or any one oi the judges justices, or to of the superior or supreme courts of this State, either in or out of^^^county ■* . . '■ ^ , . IT- 1 • 1 T court, or to a court, upon petition oi such prisoner imder his or their hands, judge of the whereof notice shall be given to the person or persons, his or their ®"P^"°'^ "'^ ^"." , . . ^ "^ 1-1 preme court, in executors, administrators, attorneys, or agents, at whose suit such or out of court, prisoner or prisoners shall be imprisoned, to require the sheriff. Creditors to be jailer or keeper of any prisoner within their respective jurisfiictions, ^° ® notified, to bring before such justices of the peace, county court^ or judge of the superior or supreme court issuing such warrant, either in or out of court, the body of any person being in prison as aforesaid, together with a list of the several writs, mesne processes and ex- ecutions, with which he or they is or are charged in the several jails aforesaid, which warrant every such sheriff, jailer or keeper is hereby commanded to obey, and such prisoner or prisoners com- ing before the said justices or judges (the creditor or creditors, if resident in this State, at whose suit he is confined, being first per- sonally summoned, according to the directions in this act,) if he or they have no visible estate, real or personal, and shall' make oath „ ^, , , , . /L . i\iri -J*' r Oath to be ta- ( or affirmation as the case maybe,) before the said justices of ken by such the peace, or county court, or judge of the superior or supreme '^^'^^°''*' 1. 1773, c. 100, s. 1. — ISIO, c. 802. — 1303, c. 716, s. 2.— 1810, c. 797.-1830, c. 33. VOL. 1. 41 322 INSOLVENT DEBTORS. [ChAP. LVIII. Debtors to be forever dis- charged of exe court respectively, issuing such warrant, that he hath not the worth of ten dollars in any worldly substance, either in debts owing to him, or otherwise howsoever, over and above his wearing ap- parel, one bed and its necessary furniture, one wheel and cards, also one loom, working tools and arms for muster, one bible and testament, one hymn book, and one prayer book, and all neces- sary school books, and that he hath not at any time since his im- prisonment or before, directly or indirectly, sold, assigned, or otherwise disposed of, or made over in trust for himself or other- wise, any part of his real or personal estate, whereby to have or expect any benefit or profit to himself, or to defraud any of his creditors, to whom he is indebted, and if there be no person pre- sent that can prove the contrary, then such person, by such court .or justices, without form of trial, shall be immediately set at lib- terty, and shall stand forever discharged of all executions against the debts sued ^^^ body, for such debts so sued for and all costs of suit, for and costs. 2. The said justices of the peace and judge of the superior and Proceedings, supreme court respectively, before whom such prisoner or prison- court, to be put ers shall, upon oath or affirmation, have discharged themselves, m writing, re- vvhen the proceedings are before them out of court, shall put the turriBcl to court ... . -. and recorded, 'same ui writing, under their hands, and return the same mto court from whence the mesne process or execution issued, and the pro- ceedings, in case of a discharge from a ca. sa. issued by a justice of the peace, shall be returned to the next county court, there to be kept on record, under the penalty of ten dollars for each justice or judge, for such omission and neglect, to be paid to the person in- jured by order of said court. 3. The justices of the peace of any county shall and may legally cause to be brought before them any person confined for debt within the jail of their county, and administer to him the oalh pre- court'of'another scribed for the relief of insolvent debtors, and grant him a dis- county. charge, as well when the execution, under which the person of said debtor is confined, has issued from the court of another county, as where it issued from the court of their own county : Provided^ that nothing in this section shall be construed to dis- pense with the notice which the first section of this act requires to be served on the creditor or creditors of such debtor. 4. If any person or persons shall be taken or charged in mesne process or execution for any sum, and shall have remained in prison by the space of twenty days, and shall have any estate, real or personal, and be minded to deliver up his or their effects to his or their creditors, it shall be lawful for such prisoner to prefer a petition to the court, from whence the process issued, setting forth the cause of imprisonment and an exact account of his or their estate and all circumstances relating thereto, which petition sub- scribed by him and schedule shall be lodged with the clerk of the said court, from vi'hich such process issued, twenty days at least before the next succeeding court. And upon such petition so .Justices may discharge debt ors when com- mitted by pro- cess from the Debtors re- maining in close prison twenty days, may file a schedule. Proceedings thereupon. 2. 1773, c. 100, s. 2. 3. 1816, c. 907. 4. 1773, e. 100, s. 3.— 1809, c. 766. Chap. LVIIl.] insolvent debtors. B2S filed, the clerk of the said court shall issue, under his hand and seal, a copy of the said schedule and a notice to the creditor or creditors, at whose suit such prisoner is or shall be confined, set- ting forth the substance of the said petition and summoning them to attend the next succeeding court, to shew cause, if any they have, why the prayer of the said petitioner should not be granted, which notice being duly served upon the person or persons, his, her or their executors, administrators, attorney or agent, at whose suit such prisoner or prisoners shall be imprisoned, ten days at least before the sitting of the said court, the court shall cause the prisoner or prisoners to be brought before them, and if the said creditor or creditors, at whose suit he is imprisoned, shall appear, or being duly summoned shall fail to appear, the court shall pro- ceed to examine the nature of the said petition in a summary way, and shall tender to such person an oath (or affirmation as the case may be) to the effect following : "I A. B. in the presence of Almighty God, solemnly swear, ^g^j|^^^°j^^^g|j^'^^ (or affirm,) profess and declare that the schedule now dehvered, fiiiagasche- and by me subscribed, doth contain, to the best of my knowledge "^^'^^ and remembrance, a full, just, true and perfect account and dis- covery of all the estate, goods and effects, unto me any wise be- longing, and such debts as are to me owing, or to any person in trust for me, and of all securities and contracts, whereby any money may become hereafter payable or any benefit or advantage accrue to me or to my use, or any other person or persons in trust for me, and that I, or any other person or persons in trust for me, have not land, money or stock or any other estate, real or person- al, in possession, reversion or remainder, of the value of the debt or debts with which I am charged in execution, and that I have not directly or indirectly sold, lessened or otherwise disposed of in trust, or concealed, all or any part of my lands, money, goods, stock, debts, securities, contracts or estate, whereby to secure the same, to receive or expect any profit or advantage thereof, or to defraud or deceive any creditor or creditors, to whom I am indebted, in any wise howsoever : so help me God." 5. If such prisoner take such oath for affirmation) and the Debtors, filing court be convinced of the truth thereof, the schedule so sub- taking the oath, scribed being filed with the clerk of the court, for the better ^o be discharg- information of the creditors of such prisoner, then it shall be law- ful for the court, before whom such oath was taken, by warrant, to ©ommand the sheriff, jailer or keeper of any prison forthwith to set at liberty such prisoner, which warrant shall be a sufficient discharge to such sheriff, jailer or keeper, and shall indemnify him or them against any escape or escapes, or action or actions whatso- ever, which shall or may be brought, commenced, or prosecuted against him or them by reason thereof; and if any such action shall be commenced against any sheriff or other officer for performing ' his duty in pursuance of this act, such sheriff or other officer may plead the general issue, and give this act in evidence. 6. 1773, c. 100, S.4. \... 324 INSOLVENT DEBTORS- _[ChAP. LVIII. the debtor is unable to pay, may demand his fees for the same of the creditor. Jailers, after twenty days, may notify creditors, and demand secu- rity for their fees. Jailers to fur- 6. Whenever any debtor shall be actually confined within the with food when walls of a prison, by reason of mesne process for debt, capias ad required, and if satisfaciendum^ ov Surrender by bail after iudement, it shall be the duty oi the jailer to lurnisJi said prisoner with necessary lood dur- ing his confinement, should the prisoner require the same, and the jailer shall be authorized to demand the same fees therefor, as are allowed by law for keeping other prisoners, and may, if the pris- oner be unable to discharge them, recover the same from the party at whose instance such debtor was confined in jail ; and when the debtor shall have remained in jail for the space of twenty days, it shall be lawful and sufficient, for the sheriff" or jailer to give notice thereof to the plaintiff, his agent or attorney, and to demand secu- rity of him for the prison fees, that may arise after the expiration of twenty days, and if he shall fail to give such security, then to dis- charge such debtor out of custody. Debtors taken 7. When any debtor shall be taken upon any capias ad satisfa- upon a ca sa cicndum. OV be in custody by surrender of bail after iudgment, for orm custody by , ' i • , -^ i i -n i i Jo ' surrender of any debt, contracted, either by note, biJJ, bond, open account or me\^^fr i'^tf' Otherwise, since the first day of May, 1823, and shall be desirous contracted to take the benefit of the oath for the relief of insolvent debtors, or since the first ^f rendering a full and fair schedule of his property, it shall and May, 1823 how i , r i r i i i i i i -/v r i may be lawiul tor such debtor to tender to the sheriii oi the county, his lawful deputy, coroner or any constable, by whom he may have been taken, a bond payable to the party at whose instance the ar- rest was made, with good and sufficient securities in twice the amount of the debt, conditioned for his appearance at the next court, to which the execution shall be returnable, then and there to stand to and abide by such proceedings as may be had by the court in relation to his taking the benefit of said act, and in case of failure to appear, judgment shall be rendered up instanter upon said bond against the principal and his securities, to be discharged upon the payment of the debt and costs, and where an execution issues thereon, neither of the defendants shall be entitled to the benefit of the provisions of this section : Provided, that if either of the parties to the said bond shall be desirous to have an issue made up and submitted to a jury, a jury shall be immediately empanelled to try such issue, and the plea of non est factum shall only be re- ceived upon the party making oath of its verity : ^nd provided further, if it shall be made appear satisfactorily to said court that said debtor is prevented from attending court by sickness or other cause, to be judged of by the court, the case shall be continued over to the next court, at which term the same proceedings shall be had as if he had appeared at the first term : And provided fur- ther, if such debtor shall die in the mean time, it shall be an abso- lute discharge of said bond : Provided nevertheless, that when any debtor shall be taken as aforesaid, within twenty days of the sitting of said court, said bond shall be conditioned for his appearance at the succeeding term of the court aforesaid : Provided ahcays, that when any capias ad satisfaciendum shall be directed to any con- to procure their discharge, To give bond with security for their ap- pearance at court. Proceedings thereupon. 6. 1773, c. 100, 3. S and 9.— 1821, c. 1103, amended. 7. 1S22, c, 1131, S. 1.— 1834, 0. 8, S. 2. Chap. LVIII.] insolvent debtors* 325 stable and he shall take bond as aforesaid, such bond shall be con- ditioned for the defendant's appearance at the county court of the county in which such constable resides : and it shall be the duty of all officers, having in their possession any such bond, to return the same, together with all the papers they may have appertaining to the case, on or before the second day of the court to which the same is returnable, under the penalty of fifty dollars, to be recov- ered at the suit and for the benefit of the person aggrieved. 8. Upon such debtor tenderina: such bond as in the last section Debtor tender- mentioned, it shall be the duty of the sheriff, deputy, coroner, or JJ-|,5^^^;] constable, as the case may be, to release him from confinement or custody. 9. It shall be lawful for the said security to surrender the prin- Surety may cipal in discharge of himself, in open court of the county to which surrender his , ■, ^ m prill cipsil. the capias ad sutisfaciendum is returnable, or to the sheriff or other officer, as the case may be, of said county. And the security is hereby authorized to exercise all the power, which by law special bail have over their principal. 10. Upon the appearance of such debtor at the court aforesaid, Debtor, hav- it shall be lawful for him, either in person or by attorney, to move Jw-s^' notice'^ the court to be admitted to take the oath prescribed for the relief shall, upon mo- of insolvent debtors, or to swear to the schedule previously filed In'iued'^o^take with the clerk of said court, agreeably to the provisions of this act the oath for hereinafter contained ; and it shall be the duty of said court, upon^^^^*^*^ ' such debtor making it appear to them that at least ten days' notice before the court has been given in writing to his creditors or their agent or attorney, of the intention to avail himself of the benefit of this act, to administer the oath herein prescribed, or to swear him to the schedule aforesaid, (as the case may be,) and to direct the clerk to make an entry of the same upon his minutes, which shall exempt the body of such debtor from imprisonment for debt, in all cases where notices may have been given to the cred- itors, which notices shall be filed with the clerk of said court : Provided always, if any creditor or creditors shall suggest any if creditor sag fraud or concealment of any property, money or effects, it shall be fuf t/te'made" the duty of the court to direct an issue to be made up and tried by up. a jury, at the first term, before such debtor is sworn, and on sue h Dg^jj^j,. ^^^ {^^ trial, it may be lawful for the creditor to have the debtor examined, examined upon on oath, before the said jury. Provided further, that if either of"*^*^ " the parties shall be unprepared for the trial of such issue, the court may continue the same, under the same rules and regulations by which suits at law are now continued. And if the said jury shall find that there is any fraud or concealment, or if said debtor shall fail or refuse to answer upon oath, or if the said debtor shall fail to make it appear to the court that he has given the necessary notice to the creditor or creditors, at whose instance he may have been arrested, or to his or their agent or attorney, then and in that case the said debtor shall be deemed in the custody of the sheriff, and 8. 1822, c. U31, s. 2. . 9. 1822, c. 1131, s. 3. 10. 1822, C. 1131, s. 1.— 1835, c. 12. 326 INSOLVENT DEBTORS. [ChaP. LVIII. the court shall adjudge that he be imprisoned, until a full and fair disclosure of all the money, property or effects be made by said debtor, and until he has given the necessary notice as aforesaid to be judged of by the court, which he may do at the next succeeding Appeal allow- court : Provided, that if either party to the issue, made up under ®"- the provisions of this section, is dissatisfied with the verdict of the . jury, he may appeal as in other cases. finds"fraud,T^e H- Where any debtor, upon the finding of the jury that there is debtor to be fraud or Concealment, shall be adjudged to be imprisoned until a ti??ie makes™ ^Lih and fair disclosure be made, such debtor, upon making a full full and fair and fair disclosure in writing of all the money, property or effects, '. and upon giving the necessary notice, shall be discharged according such disclosure, to the provisions of the last section of this act, by taking the fol- may take the ' lowing Oath : oath. ° " I, A. B. do solemnly swear that the disclosure, now by me made and subscribed, doth contain a full and true account and dis- covery of all the estate, goods and effects, unto me in any way belonging, and of all debts unto me owing, or to any person in trust for me, and of all securities or contracts, whereby any money may become payable or any benefit accrue to me, or to any person in trust for me, and that I or any person in trust for me have not any land, money, or other estate in possession, reversion or re- mainder, not herein fully disclosed, and that I have not, directly or indirectly, sold, assigned or otherwise disposed of in trust, or concealed, any land, money or other estate, not herein fully dis- closed, whereby to secure the same, or to expect or receive any profit or advantage : so help me God." Provided ahoays, that should the creditor or creditors, at whose instance the issue afore- said was made up, think that a full and fair disclosure is not made by said debtor in writing, it shall and may be lawful for the creditor or creditors to have an issue made up, under the direction of the court, and tried in the same manner, as in cases where there is a suggestion of fraud or concealment of property, money or effects ; and in the event of the jury finding against the debtor, his impris- onment shall be continued as before. Debtor to file 12. When any debtor, taken upon any capias ad satisfaciendum the clerk ten 01' ifi custody as aforementioned, shall be desirous to render a full days previous and fair schedule of his property, money or effects, he shall file the the court/"" ° Same with the clerk of the court, at least ten days before the sit- ting of the court, at which he proposes to avail himself of the benefit of the tenth section of this act, and upon his being permit- ted to swear to the said schedule, the same proceedings shall be had thereon as may be had on schedules filed under the former provisions of this act. When creditor J 3, When the party, at whose instance any debtor may be rcsiciGS out 01 •• • • this Slate, to arrested or be in prison shall reside out of the State, the notice whom and how j.gqyjj.g(j j^y ^i-jjg 3^1 to be served uDon him may be served on his the debtor may ^ •' , ii''ii 1 rii- give notice. attorney or agent, or the constable, who has charge 01 the clami ; 11. 1S30, c. 26, s. 1 and 4. 12. ^822, c. 1131, s. .5. ,-, 13. 1773, c. 100, s. 8, anvended. Chap. LVIIL] insolvent debtors. 327 and in case there be no agent or attorney known to the debtor, who resides in the county, in which said debtor intends to apply for reUef under this act, the debtor may advertise in any newspaper in this State ; and such service on the constable, agent or attorney, or advertisement in the newspaper, as aforesaid, shall be sufficient notice as to the creditor or creditors, at whose instance the debtor may be arrested or imprisoned. 14. All the lands, tenements and hereditaments, which shall be ^^^^'^Ij''. contained in any schedule filed under any of the provisions of this tained in any act, for such use, interest, rieht or title as such prisoner or debtor ^'^^'^4"^'^° . . -r . V6st in tile then shall have in the same, which he may lawfully depart withal, sheriff of the and all goods and chattels whatsoever, and all debts and demands county where ... such sciieQule due to such debtor, and set forth and described in said schedule, may be filed. shall vest in the sheriff of the county, where such schedule may be filed ; and such sheriff is hereby authorized and required to sell at public vendue, and convey the said property, real and personal, th^eupoa" ^ to any person or persons whatsoever, for the best price that can be got for the same, and to receive the money arising from such sales, and to sue lor and collect debts and demands contained in said schedule, in his own name ; and the money so received and collected, the said sheriff shall upon oath pay into the office of the court of pleas and quarter sessions, where the said schedule may be filed, to be distributed as hereinafter mentioned. Provided always^ that such prisoner or debtor shall be entitled to retain such articles as are excepted in the oath prescribed for insolvent debt- ors. 15. The judge of the superior court, or the court of pleas and court to ap- quarter sessions, where any schedule maybe filed as aforesaid, P.oi"t commis- shall appoint two commissioners, who shall have full power to vide the debt- examine into the claims of all and singular the creditors of the or's effects 1 111 1 • 1 amonsr his person or persons imprisoned, as well those at whose suit lie was creditors. committed as of all others ; and the said commissioners shall, by advertisement at the court house, or in some newspaper or gazette if they deem it necessary, make known the time at which they propose to examine such claims, which shall be within sixty days after their being appointed, and upon such creditors, their execu- tors or administrators, agents or attorneys appearing before thein and satisfying them of the justice of their claims, they shall pro- ceed to make distribution amongst each and every of the creditors so appearing, in proportion to their respective demands ; and the clerk of the said court is hereby directed to pay such moneys, so received from such insolvent's estates, into the hands of the said commissioners for the purposes aforesaid. 16. No person shall be arrested or imprisoned for any debt ex- Debtor, after isting at the time of his discharge from prison, under any of the ^J,* j^^f^^^ ^^_®' provisions of this act, where due notice may have been given to rested again, the creditor at whose instance he was imprisoned, and proved and uon maTisTue filed at the time of his discharge ; and no person, giving bond and against his property after- wards acquired. 14. 1773, c. 100, 3. 5.— 1S27, c. 44.— 1830, c. 26, s. 2. 15. 1773, c. 100, s. 6. 16. "1773, c. 100, s. 7.-.-1S22, c. 1131, s. 4.-1733, c. 350, s. 1. 328 INSOLVENT DEBTORS. [ChAP. LVIII. Debtor swear- ing falsely, to be guilty of per- jury. No female to be imprisoned tor debt. Debtor having taken the bene- fit of prison bounds, may take the benefit of this act without going into close pri- son. Any creditor notified may suggest fraud, and any other creditor may make him- self a party to the issue. Anj' one or more of the creditors may appeal without the others. After issue made up, debt- or shall not discharge him- self, but by tri- al or consent. being discharged without commitment to close prison, as prescrib- ed in this act, shall be arrested or imprisoned by any creditor, whose debt existed at the time of his discharge, and who may have had due notice thereof : but in all cases of the discharge of an in- solvent debtor, under any of the provisions of this act, execution may issue against any estate afterwards acquired by him. 17. If any person, who shall take any of the oaths prescribed in this act for the relief of insolvent debtors, shall upon indictment of perjury be convicted thereon, he shall suffer all the pains of wilful perjury, and shall never after have any of the benefits of this act, but may be sued and imprisoned, as though he had never taken the oath of insolvency. 18. No female whatever shall be imprisoned for debt. 19. Any debtor, who may be in prison on account of debt, whether under mesne process, or otherwise, may take the benefit 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 act. Provided however, and it is hereby expressly declared, that any debtor, against whom an issue is found, or who for other cause is adjudged to be imprisoned until he make a full and fair disclosure of his property, shall not be entitled to the benefit of the prison bounds, but shall remain in close prison, until dis- charged by being permitted to take the oath of insolvency. 20. Any creditor notified may suggest fraud, and the court may permit as many other of the creditors, who may have been noti- fied, as shall choose, to make themselves parties to the issues, but the debtor shall not be compelled to answer the suggestions of fraud in more than one case : and if any creditor, where there are more creditors than one, shall be dissatisfied with the judgment of the court, he, or as many as choose, may appeal, notwithstanding some of the creditors, who may have made themselves parties to the issues, may decline to appeal, and the suit shall be prosecuted afterwards by the appealing creditors. 21. After an issue made up, the debtor shall not be at liberty to discharge himself, as to the creditors in that issue, except by trial and verdict in the same, or a discharge by consent. 17. 1793, c. 100, s. 10. 18. 1823, c. 1209. 19. 1818, c. 964, amended. 20. Amendment. 21. Amendment. Note. — References to Adjudged Cases. Sect. 1. Burton vs. Dickens, 3 Murph. 103. Howard ijs. Pasteur, ib. 270. Jordan vs. James, 3 Hawks, 110. Sect. 7. Williams vs. Yarbrongh, 2 Div. 12. Arrington vs. Bass, 3 Dev. 95. Speight as. Wooton, ib. 327.— Grain vs. Long, ib. 371. — Page vs. Winningham, 1 Dev. and Bat. 113. Sect. 9. Mooring vs. James, 2 Dev. 254. Sect. 10. Folsome vs. Gregory, 1 Dev. 033. Chap. LIX.] INSPECTIONS. 329 CHAPTER 59. INSPECTIONS. AN ACT FOR ESTABLISHING PUBLIC LANDINGS AND PLACES OF INSPECTION, AND FOR THE APPOINTMENT OF INSPECTORS AND REGULATION OF INSPECTIONS. Section 1 . Former places of landing and inspec- tion continued — And county courts may appoint others 2. County courts to appoint inspectors. 3. Inspectors to give bonds — Remedy on the bonds. 4. Inspectors to attend at the times and places appointed. 6. No exporting merchant to be an in- spector. 6. Not more than six inspectors to be appointed in any town. 7. No inspector allowed to appoint a deputy — Proviso in favor of flour inspectors. 8. Inspectors to hold their offices during good behavior — Proviso as to Wil- mington — How inspectors shall be removed for misbehavior. 9. How vacancies in the office of in- spectors to be filled, when the coun- ty court is not in session. 10. Penalty for acting as inspector before qualification. 11. Duty of inspectors of tobacco. 12. Inspectors to give a manifest of each hogshead. 13. Owners of condemned tobacco may have it reinspected after a certain time. 14. No tobacco to be exported without inspection. 15. Penalty for falsely branding a hogs- head of tobacco. 16. Punishment for forging, &c. a stamp, note, or receipt for tobacco — Man- ner of proceeding when a note is lost. 17. How a person demanding his tobacco, alleged to have been injured since inspection, shall proceed. IS. County court may appoint turners up and coopers of tobacco. 19. Inspectors to report to court the be- havior of turners up, &c. of tobacco VOL. 42 Section • — Anj' person may turn up, &,c. his own tobacco. 20. County court to appoint pickers of tobacco. 21. No tobacco inspector to buy tobacco. 22. County courts may build or rent warehouses, &c. 23. When a tobacco warehouse is burned, the inspector shall not be liable on his notes, &c. 24. County courts to regulate warehouse rent, &.c 25. How warehouses maybe repaired or rebuilt. 26. Private warehouses to have the same rules as to rent, &c. 27. No inspector of flour shall sell or trade in flour, or buy, except for his own use. 2S. Degrees of flour. 29. What flour shall pass inspection. 30. Penalty on miller, manufacturer or seller, for not complying with the foregoing provisions. 31. Inspectors may, in certain cases, un- pack the barrels of flour. 32. Persons selling barrels of flour, not containing the requisite quantity, to be liable for the deficiency. 33. How casks of flour to be inspected. 34. Owner of flour, dissatisfied with the inspection, how to obtain a re-exam- ination. 35. Penalty for exporting flour not pass- ed by inspector. 36. Penalty on master, &c. for receiving on board his ship uninspected flour — Proviso. 37. Cask of flour once inspected, not liable to be reinspected in sixty days. 38. Cask not to be condemned for short measure in certain cases, if it con- tain one hundred and ninetysix pounds. I^^C, /- ^^ ^^ '^^ 19. ^o - 4/• 7- C^ .fx / f? 330 INSPECTIONS. [Chap. LIX. #« Section 39. Penalty for packing flour in a brand- ed cask. Penalty for altering inspector's brand, &c. Penalty on inspectors of flour for neglect of duty. Flour may be sold in the town of Fayetteville without inspection. Duty of inspectors of beef, &c. and penalties for misconduct. How beef and pork shall be in- spected . Hog's lard to be inspected. Rice, how inspected. Fish, how inspected. Pitch and turpentine, how inspected — Tar, how inspected. Inspectors to make a difference be- tween hard and soft turpentine, dip- pings and scrapings. Makers of tar, pitch and turpentine to brand their barrels with the ini- tials of their names — Inspectors to keep a book for entering the makers' names, &c. Beef, &c. to be reinspected if not ex- ported in sixty days — Tar, pitch or turpentine, in twenty days. No cooper, &c. to make barrels for sale but according to the directions of this act. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 61. 52. Section 53. Seller or exporter of beef, &c. to produce the inspector's certificate, &c. 54. Penalty on masters of vessels for re- ceiving on board any such articles uninspected. Staves, heading and shingles, how inspected. Lumber, how inspected. Saw-mill lumber, how inspected. Steam-mill lumber, on the Cape Fear river, how inspected. Inspector's fees, by whom to be paid. Staves, heading, &c. to be culled. Purchaser of staves or heading, on the Cape Fear, to pay one half price for the refuse. No inspector shall purchase cullings, &c. Penalty for any but a legal inspector of staves, &c. acting as such. How fines and forfeitures under this act to be recovered and applied. Disputes about extra cooperage in the town of Wilmington, how to be determined. Regulations as to the sale of fire- wood in towns. Penalty on inspectors for taking greater fees than the law allows. /^^€'. ^ ^i' •^^ 55. 56. 57. 58. 59. 60. 61. 62. 63. 64. 65. 66. 67. Former places of landing and inspection con- tinued — and county courts may appoint others. County courts to appoint in- spectors. Inspectors to give bonds. 1. Be it enacted by the General Assembly of the State of JVorth Carolina, and it is hereby enacted by the authority of the same, That all such places, as have heretofore been estabhshed by law or by the order of any county court within its county as public landings, or as places of inspection, shall be and remain public landings and places of inspection respectively ; and the several county courts are hereby authorized to appoint such public land- ings and such place or places of inspection, within their re- spective counties, as they may think necessary, proper and con- venient : and on any petition for public landings, the said court may order the costs to be paid by the petitioner or by the county. 2. The several county courts, except when herein otherwise directed, are hereby authorized to appoint one or more inspectors, for the place or places of inspection so designated, whose duty it shall be to inspect such article or articles as by law are required to be inspected, which are or may be brought to his place of in- spection for that purpose ; which inspectors shall reside in the county where appointed and take the oath or oaths required by law. 3. Every inspector so appointed shall, before he enters upon or executes his office, enter into bond with two good and sufficient 1. 1784, c. 206, s. 4.— 1789, c. 303.— 1790, c 331, s. 3.- 2. 1793, c. 386.— 1811, c 807, s. 6.-1811,0.812. 3. 1784, c. 206, S. 2.— 1819, c. 990. -1793,0.386.-1822,0. 1139,S. 2. Chap. LIX.] inspections. 331 securities, in the penalty of one thousand dollars, for the true and faithful discharge of his office, according to the directions of this act, (which bond and securities every court respectively is hereby empowered and required to demand and take, and cause to be ac- knowledged before them in open court and recorded,) and the said bond shall be made payable to the State of North Carohna, and shall be in force for the term of three years after such inspector shall be out of office ; and in the name of the State any person or Remedy on the persons injured may and shall, at his, her or their costs and char-^°"'^®' ges, commence and prosecute a suit or suits on such bond against the parties therein bound, their executors or administrators, and shall and may recover all damages, which he, she or they may have sustained, by reason of the breach of the condition thereof, and the said bond shall not become void upon the first recovery, or if judg- ment shall be given against any plaintiff or plaintiffs, who may sue on such bond, but may be put in suit and prosecuted from time to time, for the benefit of the party or parties injured, until the whole ])enalty expressed in such bond shall be recovered : Pro- vided alivays, that if any verdict or judgment shall pass for such inspector or his security, the person or persons, at whose instance such suit shall be prosecuted, shall pay double costs ; and the bond so given shall be annually renewed, under the same rules, regula- tions and penalties as are prescribed in the case of clerks of courts. 4. It shall be the duty of the several inspectors, so appointed, auenTauhe" to attend, at the times and places by law established and directed, times and to -inspect, according to the nature of their several appointments, l^^*^^ appomt- all such tobacco, beef, pork, rice, tar, pitch, turpentine, staves and heading, fish, flour, butter,, flaxseed, sawed lumber, ton tim- ber and shingles, as shall be exposed for sale for exportation with- in their respective counties. 5. No merchant, who shall be concerned in trade and in the No exporting , r If • 1 • 1 1 1 • 1 merchant to be purchase oi produce lor exportation, which the laws require to be an inspector, inspected, shall be considered qualified to be appointed as in- spector of any of the articles of produce, which by law are or shall be required to be inspected. And if any person, receiving an appointment as aforesaid, shall be concerned as a merchant in the exportation of produce, he shall forfeit the sum of sixty dollars, to be recovered by action of debt in the name of the State, in any court of record having jurisdiction thereof, one half to the use of the State, and the other half to the use of the informer : and the person so offending shall moreover be removed from office, by the county court of the county in which he resides, on motion made by the solicitor of the county, and on producing the record of the recovery of the penalty above mentioned : Provided nevertheless, that nothing herein contained shall be considered as applying to shopkeepers and others, who do not buy or sell produce for exportation. 6. It shall not be lawful for any of the county courts of this Not more than ^ . . ^ , •' , .•' . SIX inspectors fetate to appoint in any of the towns more than six inspectors, ex- to be appointed in any town. 4. 1777, c. 120.— 1784, c, 206, S. 2. 5. 1805, c. 681, s. 1 and 2. 6. 1805. c. 681, s- 3. 332 INSPECTIONS. [Chap. LIX. cept for the purpose of inspecting timber ; in which case the courts respectively may appoint such number as they may consider necessary and proper. No inspector ^- ^^ ^^^^^^^ ''^'^^ ^^ lawful for any person, appointed inspector allowed to ap- agreeably to this act, to appoint any person or persons to act in said pomt a eputy. ^fg^g q|- inspection under him or them, but it shall be the duty of every inspector, so appointed, to attend personally to the inspec- tion of all articles or produce, which the said inspector is entitled to inspect. And if any inspector shall employ any person or per- sons to act as aforesaid, such inspector shall forfeit and pay the sum of two hundred dollars, to be recovered by action of debt in any court of record having cognizance thereof, for every such offence, one half to the use of the State and the other half to the Proviso in favor use of the person suing for the same : Provided, that if the quantity of flour in- Qf flour, brought to any place of inspection within this State, 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, in such cases it shall be lawful for him to appoint one or more persons, of good repute and skill in the quality of flour, to assist him in the execution of his office. Such assistants, having taken the oath or affirmation prescribed by law for the inspectors of flour, shall be authorized to inspect and brand flour in the same manner as the inspector himself might do : Provided, that the said inspector shall be liable for all misconduct In office of his said deputies. Inspectors to ^* ^^^ public inspectors of commodities shall hold their office holdtheirof- during good behavior : Provided, the inspectors of naval stores, food behavior provisions, staves, heading and lumber for the town of Wilmington Proviso as to shall be appointed by the county court of New Hanover every two w^ilmington. yg^rs, at the first court held after the first day of May : And pro- How inspectors '^^^^^/^''^^^^5 that where any inspector shall be guilty of malprac- shallbere- tice or misbehavior in his office, on complaint being made to the behavior!'^ ^' county court, they shall issue a citation and cause him or them to appear before the said court, at the ensuing term ; and if the charges shall be supported by good and sufficient testimony, and confirmed by the verdict of a jury, they shall remove such inspec- tor from his said office, and appoint another in his stead, who shall hold his office during good behavior as aforesaid. How vacancies 9. Whenever there shall be a vacancy in the office of inspector inspe'ctors'^^to '" ^"7 county, while the county court is not holding its session, it be filled when shall be lawful for any three justices of such court to nominate cour*t°is"not in ^"d appoint some other fit and proper person as inspector, until session. the next succeeding court for such county, or if any inspector shall be rendered incapable of performing his duty by sickness or other accident, it shall then be lawful for such inspector, by and with the consent of three justices, to appoint some other person as assistant during the said inspector's sickness or other disability, which consent shall be certified under their hands and lodged with the clerk of the court of the county wherein the inspector resides ; 7. 1796, c. 462.— 1811, c. 807, s. 2. 8. 1791, c. 345, s. 7.— 1831, c. 53. 9. 1784, c. 206, s. 3.— 1799, C. 539, S. 2. Chap. LIX.] inspections. 833 and the person so appointed shall take the same oath as inspectoi's appointed by the courts ; and the inspector shall be liable to the same j5nes and penalties for the said assistant's bad conduct and misbehavior as he is liable for his own. 1 0. No person shall act as inspector without being first qual- Penalty for ified according; to law, under the penalty of forty dollars for acting as m- , rr 1 TIC • • I • • 1 spector before every such oiience, to be recovered betore any jurisdiction bav- qualification, ing cognizance thereof, one half to the use of the State, the other half to the person suing for the same. 11. It shall be the duty of inspectors of tobacco to examine Duty of in- well and carefully, by breaking in at one or more places, every ^P^^^J"^^ °^ ^°' hogshead, cask or parcel of tobacco, broughtto their respective ware- houses for inspection ; and such tobacco as they shall find good, sound and merchantable, and fit for exportation, they shall cause to be immediately headed, hooped and the number, net weight and tare, with the name of the warehouse, stamped or marked thereon ; and for all tobacco, so passed by them in crop hogsheads, they shall give to the owner thereof a receipt or note, containing the warehouse, number, gross, tare and net weight, and the kind of tobacco, and therein obhge themselves to deliver the same to- bacco to such owner or his order when demanded ; and for all such tobacco as they shall pass in parcels, they shall give the own- er a transfer note ; and all such parcels of tobacco they shall im- mediately 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 there- from, 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 shrink- age ; and may also charge, out of such transfer notes, thirty pounds of tobacco for the cask ; and where tobacco is ofliered for inspec- tion, and it appears to them part thereof is only fit to pass, the owner thereof may separate such good tobacco from the bad ; and where the inspectors at any warehouse shall disagree in their opi- nion of the quality of any hogshead of tobacco, or where the to- bacco to be inspected is the property of one of the inspectors, then another sworn inspector from the nearest warehouse, or jus- tice of the peace, shall be called and shall decide, and receive or reject the same. 12. Where any tobacco shall be delivered out of a warehouse, inspectors to , . 11111 11 • 1 • §|i^6 a manitest tne inspectors shall and they are hereby required to give a separate of each manifest of each hogshead of tobacco, by them so delivered, inliogshead. which shall be inserted the marks, number and weight of said to- bacco. 13. The proprietor of condemned tobacco shall have the privi- ^^j,;|^jj°^ ^p_ lege of letting said tobacco remain in the warehouse six months bacco may after the inspection thereof, and shall be entitled to have such to- gpJcted "after a bacco reinspected, if he think proper. certain time. 10. 1799, c. 539. s. 1, amended. 11. 1777, c. 120, s. 3.— 1789, c. 302, s. 1.— 1817, c. 942, s. 1. 12. 1789, c. 302, s. 3. 13. 1794, c. 425., 334 INSPECTIONS. [Chap. LIX. No tobacco to 14. No tobacco shall be exported out of this State, until the wlthouUnspec- ^^"^'^ ^^^ been carried to some place of inspection, and there tion. viewed, passed and stamped according to the directions of this act. MM^\^°'^ d 15. If any person shall brand, or cause to be branded, any hogs- ing a hogshead head of tobacco, wliich the inspectors had not examined and of tobacco, branded, so as to induce a belief that such hogshead had been law- fully inspected, such person shall forfeit and pay the sum of one hundred dollars, to be recovered before any county court by any person suing for the same to his own proper use. Punishment ig. If any person shall forge or counterfeit the stamp, note or a stamp,"note,'^ receipt of any inspector, or offer for sale or payment, or demand or receipt for of any inspector, tobacco on any such forged notes or receipts, knowing them to be such, or shall cause to be exported any hogs- head or cask of tobacco, stamped with a forged or counterfeit stamp, or shall take any staves, plank or heading, out of any hogs- head of tobacco stamped as herein directed, after such hogshead shall have been delivered'from any of the public warehouses, every person, so offending and being thereof legally convicted, shall be adjudged a felon, and suffer as in cases of felony ; and if any inspector's note shall be lost or destroyed, the owner thereof may, on making oath before some magistrate, of the quantity of tobacco mentioned in the same, and that the note is lost or destroyed, and that he or she so making oath is the lawful owner thereof, and enti- tled to receive the tobacco therein mentioned, obtain a certificate from the justice administering such oath, and shall thereby be enti- tled to receive the tobacco for which the lost note was given ; and if any person shall be convicted of making a false oath, or pro- ducing a forged certificate in the above case, and knowing the same to be forged, he shall suffer as in cases of wilful and corrupt per- Mannerof pro-J^^y ' Provided, that in all such cases of lost or destroyed notes, ceeding where the Owner thereof, before obtaining a note for the same, shall give a note IS o&t. j^qj^^j ^jj^j-i approved security to the inspectors, who gave the lost or destroyed note, or their successors, in double the amount of the value of the tobacco, to indemnify the person, who may thereafter produce the original note, the value by him paid for the same ; the bond so taken shall be assignable, by the inspectors taking the same, to the persons producing the original notes, who may main- tain an action of debt thereupon, and such assignment shall exon- erate the inspectors from any claim or demand against them, by virtue of the original note. How a person 17. When any person demands tobacco of any inspector on demanding his jj notes, and shall have cause to doubt the same hath received tobacco, al- V • • i • • r i i • legedtohave damage alter mspection, three justices of the county, not bemg cWini'ilo!.'^ merchants, where the tobacco is, shall, on the application of the tion, shall pro- person demandmg the tobacco, repau' nnmediately to the ware- ^^^'^' house, and there (being first sworn by some other justice, who is hereby empowered to administer such oath) well and carefully view 14. 1777, c 120, s. 5. 15. 1789, c. 302, s. 4. 16. 1777, c. 120, s. 8 —1817, C. 942, s. 2. 17. 1777, c. 120, s. 10. Chap. LIX.] inspections. 335 and examine the said tobacco in dispute, and give their opinion thereon, whether the same ought to pass or be rejected, according to the best of their judgment and consciences, without favor or affection : and if in their judgment it is good, sound, and fit for ex- portation, the tobacco passed shall be a sufficient tender to the party demanding on the notes for the same ; and in that case the party, so calling a review, shall pay and satisfy the justices so attending eighty cents each, but if they reject the tobacco so reviewed, in that case the inspectors shall pay the said justices eighty cents each, and shall be Hable to the owner of the notes, for the value of the tobacco, so rejected, and such damages as he may sustain by lying out of the same from the time of demanding. Cou^ty ^ourt 18. Any number of persons, not exceeding ten, shall be ap- may appoint pointed by the court of the county, where there may be an ^^^J^^^g ^f to"*^ inspection of tobacco established, to turn up and cooper tobacco ; bacco. and they shall hold their appointments during good behavior. 19. The inspectors at each and every inspection shall be iudses inspectors to > *f .."^.V rpport to court of the behavior of the said turners up ; and if they in their opniion the mis- find said turner or turners up deficient in his or their duty, the said ^^'^'^^'°'" of inspectors shall and they are hereby required to report the said of tobacco. turner or turners up, so misbehaving, to the court of the county in which they are appointed ; and if he or they shall be found guilty of the charge alleged by said inspectors, in that case the court is hereby directed and required to remove such person or persons from said appointment, and appoint another or others in his or their stead : Provided, that any person bringing tobacco to any of Any person the said inspectors, is hereby entitled, either by himself or other- "^ay mm up ,. ■! •! 1-^1 J ^ o^c. his own to- wjse, to turn up, pick, prize and cooper his own tobacco, and to bacco. have free access to any of the prizes erected by the county, where such inspector is, for the purpose of prizing the same. And if any dispute should arise between the parties bringing tobacco to any of the said warehouses, the right of preference to the said prizes shall be determined by the inspectors. 20. The county court of each county, where a public inspection County court to of tobacco is established, shall appoint two persons skilled in oF^tobacco^ ^"^^ tobacco to be pickers, who shall be entitled to the compensation and take the oaths, allowed and prescribed by law for pickers of tobacco. And each of the said courts may appoint one of the pickers to act in the room of either of the inspectors, at any time when such inspector may be incapable of attending, who shall take the oath in manner prescribed for inspectors ; and such pickers may be called on to give a casting vote, should the inspectors dis- agree in the inspection of any tobacco ; and the said pickers, when attending in lieu of either of the inspectors, may receive the allowance of said inspectors, for each hogshead of tobacco he shall inspect : Provided, that the picker, by whose voice any tobacco shall be condemned, shall not be allowed to have the pick- ing thereof, and that when the picker is so appointed by the court, 18. 1787, c. 265, s. 2. 19. 1787, c. 265, s. 3. 20. 17S7, c. 265, a. 5. ^^^ INSPECTIONS. [Chap. LIX. he shall be invested with the power of inspector, in case of ina- bihty of either of the inspectors so appointed, until the next county court, or until the inspector can be present : Provided nevertheless, that upon complaint made to any of the said courts against either of the said pickers, the court, where such complaint is lodged, shall and is hereby directed to inquire into the nature of the complaint ; and if it shall appear that the picker or pickers, against whom such complaint hath been lodged, hath been guilty of any misbehavior in the execution of his duty, such court shall remove him or them from said appointment and appoint another or others in his or their stead. s^ecSTbuy' ^^- No inspector of tobacco shall, directly or indirectly, buy or tobacco. receive, by way of barter, loan or exchange, any tobacco whatso- ever (payments in tobacco for their own rents excepted) under the penalty of forfeiting his office. County courts 22. The justices of any county court, a majority being present, ^^^te- "■ ^^y^ ^' ^^^^ expense of their county, purchase or rent ground, houses, &c. build or rent warehouses, provide scales and weights, and other matters incident to a tobacco inspection, and allow such salaries to the inspectors as they shall judge proper, to be paid out of the money assessed for the maintenance and support of the county charges ; and also shall, at any such inspection, order and hmit the time for the attendance of such inspectors at their respective warehouses. S' wrehousT c ^^- '/ ^'!y warehouse, at any of the tobacco inspections in this is burned, the otate, that IS Or shall be appointed, shall happen to be burned and S?riabtel^°^^^'^° ^J^,f i" destroyed, where such accident shall happen no in- his notes, &,c. spector shall be sued by reason of any notes or receipts by them given for tobacco so burned. t^Tgulate"*'*" . ^\ '-^^^ justices in each respective county in this State, where- warehouserent, m pubhc Warehouses for tobacco now stand erected, shall from ^- court to court, as they shall deem fit and proper, regulate and bs- certain what shall be paid as warehouse rent for each hogshead of tobacco, by the owner or owners of the same, which shall there- after be brought to the said warehouse ; and the said justices shall and may appomt some fit person to receive moneys, who shall be accountable to them at all times for the appropriation of the same by action of debt before any court having cognizance thereof, wherem the inspector's books shall be proof as to the number of hogsheads received, for the whole of which such person shall be liable to answer, and shall be allowed no protection. SuTesTa^be . ^^'.^he justices, in the respective counties as aforesaid, shaU, repaired or re- i^m time to time as occasion may require, lay out and appropriate built. any of the remaining part of the aforesaid moneys in repairing or rebuildmg their respective warehouses, in such manner as they may think necessary. Private ware rrivaie ware- ^^ rpi ', , , . houses to have ^0- -«- he same rules and regulations herein before contained shall 21. 1777,0. 120, s. 10. 22. 1777, c. 120, s. 6. 23. 1777, c. 120, s. 9. 24. 1779, c. 159, s. 2. 25- 1779, c. 159, s. 3. 26. 1779, c. 159, S.4. Chap. LIX.] inspections. 337 be had and taken with respect to warehouses, built by private per- the same rules sons on their own lands, and at which a pubHc inspection has been ' heretofore held, so far as respects the warehouse rent that shall be paid for each hogshead of tobacco. 27. No inspector of flour or his deputies shall, directly or indi- No inspector of rectly, vend, barter, sell, exchange or trade in flour, bread, or o°^4^e^nflour other articles made of flour, under the penalty of two hundred dol- or buy, except ' lars, to be recovered by action of debt, by any person who will ^""^ '^i^ o"*^"^ ^^®- sue for the same to efl:ect, in any court of record in this State, the one half to the use of the person so suing, and the other half to be paid to the treasurer of the State for public use ; and every person, so oftending and thereof convicted, shall be and he is here- by disabled from acting thereafter in his said office ; and no in- spector of flour shall, directly or indirectly, purchase any flour by him condemned, or any other flour whatever, other than for his own use, under the penalty of seven dollars for every barrel by him purchased. 28. The several degrees of flour shall in future be distinguish- flour. ed as follows, to wit : superfine, fine, and cross middling ; and it shall be the duty of inspectors of flour, at the several places of in- spection in this State, to conform their inspection, as near as may be, to the inspection of flour observed and in use in the adjacent states. 29. Each barrel of flour, exposed to sale in or exported from ^^.^^ ^°'^''. 1 • o 111 111 • 1 1 i 1 • shall pass in- tms fotate, by land or water, shall contam one hundred and nmety- spection. six pounds ; and each half barrel ninetyeight pounds of net flour, well ground, bolted and packed, merchantable 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 chime hoop, and three nails in each upper bilge hoop, and the di- mensions shall be as follows, to wit : the stave shall be twentyseven inches in length, and the head seventeen and one half inches in diameter ; and the half barrel shall be of the following dimensions, to wit : the staves twentythree inches in length, and the head twelve and one half inches in diameter ; and every miller or manu- facturer of flour for sale or exportation shall provide and keep a distinguishing mark or brand, containing the initials of his christian name, and his surname at 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. 30. Every miller or manufacturer of flour, not complying with j^^'^^^y^"^^™''" the provisions of the preceding section, shall be subject to a pen- turer or seller alty of forty cents for every cask of flour, not hooped, marked [nl with"tl!?^ ' and branded and nailed as aforesaid, to be recovered from such foregoing pro- visions. 27. 18U, c. 807, s. 5.— 1810, c. 790, s. 11. 28. 1813, c. 852, s. 3. 29. 1791, c. 345, s. 1 and 2.— 1807, c. 728, s. 1.— 1810, c. 790, s. 4, 6 and 6. 30. 1791, c. 345, s. 2.— 1807, C. 728, s. 1.— 1810, c. 790, s. 5 and 6. VOL. I. 43 3^6 INSPECTIONS. [Chap. LIX. miller, who shall neglect to comply with the directions of this act, or from the person who shall bring such flour to any of the places aforesaid for sale ; and in case said penalty should be recovered from the person bringing such flour for sale, such person shall and may recover the same from the miller or bolter, from whom he purchased or received the same : Provided, it appears that he gave notice to said 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 said barrels. And every miller or manufacturer, putting into any cask a less quantity than herein directed, shall forfeit and pay for the defi- ciency of each pound the sum of ten cents. Inspectors 31. The inspector, upon suspicion or at the request of the pur- cases/unpack'^ chaser, shall and he is hereby required to unpack any cask of flour ; the barrels of and if there shall be a less quantity than above directed, the mil- ler, bolter or seller shall pay the charges of unpacking and repack- ing, over and above the penalties aforesaid, but otherwise the ^ charges shall be paid by the inspector or by the purchaser if the trial be made at his request. Persons selling 32. When a person shall sell any barrel or barrels of flour, not not containing Containing the full quantity by law required, the purchaser, unless the requisite there shall be a special contract to the contrary, shall be allowed Sable Voi- t°he^ to recover the value of the deficiency in an action on the case for deficiency. money had and received, before any jurisdiction having cognizance of the same. Flow casks of ^^^ Every inspector of flour shall inspect and try each cask, flour to be in- brought to him to be inspected, by boring through the cask from specte . ^j^g head, with an instrument not exceeding half an inch in diame- ter and equal in length with a barrel of flour, to be by him provid- ed for the purpose ; and if he shall judge that the same is well packed and merchantable according to the directions of this act, 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 for that purpose ; and shall also brand and mark the degree of fineness, which he on inspection shall determine the same to be of, which degree shall be distin- guished as follows, to wit : superfine, fine and cross middling. For which trouble the inspector shall have and receive from the owner of such flour the sum of five cents for every barrel by him thus inspected. And no inspector shall pass any flour, which shall prove on examination to be unmerchantable, agreeably to the true intent and meaning of this act, but shall cause the same to be marked on the bilge condemned, or secure it for further examina- tion if required ; and the inspector shall and may demand and re- ceive from the owners thereof the same rate and prices, as if the same had been passed ; and every inspector as aforesaid shall, if required, give the owner of the flour, so inspected and branded, a certificate of the same, and shall keep a record or book of inspec- tion of all flour, so inspected and branded as aforesaid, setting 31. 1810, C. 790, S. 7. 32. 1807, c. 723, s. 2. 33. 1791, c 345, s. 3.— 1810, c. 790, s. 8.— 1813, c. 852, s. 3. Chap. LIX.] inspections. 339 forth the owner of tlie floiir and miller's name with the quality of each cask. 34. Whenever any person may think himself aggrieved by the owner offlour improper decision of any inspector of flour within this State, it dissatisfied shall be lawful for the owner thereof, or his agent, to secure it for spection, how further examination, which examination he shall cause to be made to obtain a re- within sixty days thereof, by applying to a justice, whose duty it shall be to issue a warrant directed to three indifferent persons^ well skilled in the manufacture of flour, one of whom shall be named by the owner or possessor of the flour, one by the inspec- tor, and the third by the magistrate ; which said three persons, having first taken the oath or affirmation directed to be taken by the inspectors, shall proceed carefully to view and examine said flour ; and if they, or any two of them, shall differ from the in- spector as to the quality of said flour, it shall be the duty of the inspector to brand and mark the same according to their judgment, and he moreover shall pay all costs attending the said examination ;, but if they shall be of opinion that the judgment of the inspectors is correct, the owner or possessor of said flour shall pay costs. 35. It shall not be lawful for any person to export or lade on ^®^^^^*y jo"" ^^' , ^ c. ,- ir •'^. c ^ • a porting flour board oi any ship or vessel lor exportation out oi this fetate, any not passed by barrel of flour marked " condemned " by an inspector, or to export, "^*P^'^^°''- or lade on board any ship or vessel for exportation out of this. State, any casks or barrels of flour not inspected or branded as aforesaid, on pain of forfeiting ten dollars for every cask or barrel of flour exported or put on board of any ship or vessel for expor- tation. 36. If any master, owner or commander of any ship, vessel, Penalty on boat or craft shall receive any barrel or barrels of flour on board ^ceivin<^ on °"^ his ship, vessel, boat or craft for exportation, or transportation board his ship from one town or port, being a place of inspection, to another, ^0^'^-^''^*^ ^ which is not inspected and branded as herein directed, he shall for- feit and pay the sum of five dollars for each and every cask so re- ceived, recoverable in an action of debt before any jurisdiction having cognizance thereof, to the use of the person suing for the same : Provided^ that the provisions of this section shall not ex- Proviso, tend or be applied to boats or crafts plying between Fayetteville and Wilmington. 37. Any cask of flour, which has been inspected and branded at Cask of flour / ™ . .' . , . c / ,, , , . once inspected, any one place oi inspection in this btate, shall not be subject to not liable to be re-examination and inspection in another, unless, after such inspec- r?inspected m \ . ■*-, . Sixty days. tion, it shall have remained for the space of sixty days before it is exported, and in all cases the certificate of the inspector shall be conclusive evidence of the time when the flour was inspected. 38. No inspector of flour shall condemn any flour cask for "Ot Cask^noMo^be being precisely of the dimensions required by this act : Provided, short nieasure such cask shall come within one half inch of the length of the stave, J" ^^ 'i!onta'iif ^*' 196 pounds. 34. 1811, c. 807, s. I. 35. 1810, c. 790, s. 8. 36. 1811, c. 807, s. 3 —1813, c. 852, s. 2. 37. 1811, c. 807, s. 4. 33. 1828, c. 84, s. 2, amended. 340 INSPECTIONS. [Chap. LIX. and one half Inch in the diameter of the head of the measurement required, and shall contain one hundred and ninetysix pounds of flour. Penalty for 39. If any person shall pack flour or meal of any kind what- packing flour in gyer in a cask, which has been inspected and branded with the ' name of a miller, such person shall forfeit and pay the sum of twenty dollars for every barrel so packed for sale, to be recovered before any justice of the peace, one half to the use of the informer, the other half to the use of the miller, who has been injured by such false packing, and be further liable to the action of the party aggrieved. Penalty for al- 40. If any person shall alter the mark branded on any cask of WslranF&c. ^om by an inspector, or shall mark or brand any cask of flour which has not been inspected, with any mark or brand similar to, or in imitation of any inspector's marker 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 brand- ed " condemned,^'' shall unpack and repack the same in other casks for exportation, such person shall forfeit and pay the sum of seven dollars for every cask. Penalty on iu- 41. Every inspector of flour, failing to perform the duties and flour for neg- requisites herein mentioned, shall forfeit and pay the sum of ten lect of duty, fjollars for every oftence by him so committed, to be recovered by action of debt, before any jurisdiction having cognizance of the same, by any person complaining or informing thereof. ^^XA*' "\if ^® 42. It shall and may be lawful for any person to sell flour in the town of Fay- town of Fayetteville, either in casks or otherwise, without submit- etteyille with- jjj^g ^]^g same to inspection. Duty ofinspec- ^3. Every inspector of beef, pork, rice, flaxseed, fish, tar, tors of beeff pitch and turpentine, shall constantly attend at the places for which allies for^mls- ^^ ^^^^ ^^ '^^J ^® appointed, and shall provide an iron to brand conduct. any of the said commodities, bearing the name of the inspector 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 steel- yards or scales of the lawful standard for that purpose ; and if any inspector shall neglect his duty, or brand or stamp any of the com- modities contrary to this act, or brand any empty barrels, or lend his brand to any person or persons whatsoever, he shall forfeit and pay for every barrel or cask of beef, pork, or rice, fish, flour or flaxseed, twenty dollars, and for every barrel of tar, pitch or tur- pentine, two dollars, and for branding any empty barrel, or lending his brand, two hundred dollars, to be recovered with costs by action of debt, by and for the use of any person who shall sue for the same, before any jurisdiction having cognizance thereof ; and every other person or persons that shall by any ways or means brand, or procure to be branded, any cask or barrel as aforesaid, 39. 1810, C. 790, S. 9. 40. 1810, c. 790, s. 12.— 1791, C. 345, s. 4. 41. 1791, c. 345, s. 5. 42. 1S35, C. 91. 43. 1784, C. 206, S. 7. Chap. LIX.] inspections. 341 than by the inspector or by his assistant, he or they so offending shall forfeit and pay for every such offence the same fines and pen- alties, as inspectors are by this section liable to pay for breach of duty or misbehavior. 44. All beef or pork, packed within this State for sale or ex- How beef and portation, shall be put in eood and sufficient new, white oak, P*"^^ ®^^i^ ^^ turkey or water oak casks, which shall not contain more than twentyeight gallons, wine measure, each barrel, and fifteen gallons each half barrel, and all barrels and half barrels shall be made of timber, seasoned at least six months after the riving, the staves not less than half an inch thick when wrought, the head not less than three quarters of an inch thick, and well dowelled, twelve good substantial hoops on each cask, and the whole to be tight, fit 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, and no more than two heads in one barrel, and not any boar's flesh in any barrel of pork, or 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. 45. It shall be lawful for the inspectors to inspect all hog's Hog's lard to be lard, which shah be exported in casks, respecting the quality ^"^^^^^'^ ' thereof, for which the inspectors shall be entitled to fees, similar to those allowed in pork, respect being had to the size of the cask, and the article of hog's fat or lard shall not hereafter be exported, unless in cypress or juniper casks, and inspected, under the pains and penalties inflicted by law for exporting uninspected pork, beef or any other commodities liable by law to be inspected. 46. Every cask of rice, intended for sale or exportation, shall Rice, how in- be filled with sound and weh cleaned rice, and after the same has spected. been inspected and found good and merchantable, every such cask shall be by him 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. 47. All fish, to be exported from this State, shall be packed in Fish, how in- good and sufficient barrels, and shall be inspected by an inspector ^P"^*^'®^- of the county, where the same may be saved, at the time of ship- ping the same ; each barrel shall be of the following dimensions, to wit : at least twentynine inches in length, and the head at least seventeen inches in diameter, and shall contain thirty gallons, and be made in a workmanlike manner, and 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, branding, &c. ; otherwise it shall not be law- ful to export any fish from this Slate. And if any person or per- sons shall sell or offer to sell, within this State, any fish, in barrels 44. 1784, c. 206, s- 8.-1784, c. 221, s. 5.— 1791, c. 349, s. 1. 45. 1784, c. 221, s. 5. 46. 1784, c. 206, S. 8. 47. 1784, C. 205, »v 9.— 1734, c. 221, s. 3 — 1796, c. 462, s. 2.— 1B31, C. 16. 342 INSPECTIONS. [Chap. LIX. less than the size by this section prescribed, he or they shall forfeit and pay the sum of two dollars for each barrel they may sell or offer to sell, to be recovered by warrant before any justice of the peace in the county where the offence is committed, to be apphed to the use of the prosecutor. Pitch and tor- 43 _ Eyerv barrel of pitch or turpentine shall contain thirtytwo pentme, howm- „ i 1 r r r 1 1 • 1 • 11 spected. gallons, and be free from any fraudulent mixture, and m good and sufficient casks, made of good and seasoned staves, at least three quarters of an inch thick at the chime or crose, and of proportional thickness in the bilge, and not exceeding five inches in breadth, and each barrel to be well secured with twelve good hoops, and the joint of the head placed perpendicularly to the bung ; and if pitch or turpentine shall be found by the inspector to be fraudu- lently mixed, the same shall be condemned and delivered by the Tar, how in- inspector to the owner or seller on demand ; and every barrel of specie . ^^^, gj^^jj ^^ ^j^g gauge of thirtytwo gallons wine measure, and every barrel of less size or in bad casks, not being twothirds bound with hoops, shall be put in merchantable order at the expense of the owner, and every barrel of tar, pitch and turpentine after the same shall be inspected, gauged, found clean, well filled, and in mer- chantable order, shall be by him branded. 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 fraudu- lent mixture in any tar, but that in such case the barrel shall not be branded by the inspector, until the same is as free from water as it can be made. Inspectors to 49. The inspectors shall make a difference with respect to hard make a dii- i r • it- 1 • 1 • ■ i ftrence be- and soit turpentine, and dippings and scrapings, designating the tween hard and character of each barrel, and the soft shall be branded with the dippings and 'letter S, and the hard with the letter H : Provided, it is clean scrapings. from any fraudulent mixture, so as to render it unmerchantable ; and each barrel so inspected and branded shall be held and con- sidered as good clean turpentine. And if any inspector shall give any bill contrary to the directions of this section, he shall forfeit the sum of one hundred dollars, one half to the informant, and the other to the party aggrieved. Makers of tar, 50. Every maker of tar, pitch or turpentine, shall mai'k or pentine'^to'^"'^ brand every such barrel with the initial letters of his or her name, brand their bar- not less than one inch long, under the penalty of ten cents for initialsV\heir svery barrel that may not be so branded, and every person so fail- names, ing or neglecting shall also pay one half cent per barrel to the inspector for marking the same with the initial letters of the Inspectors to maker's name, which fee shall be paid by the person paying the entering the fees of inspection, and by him may be charged to the makers : and makers' names, gyg^y inspector shall keep a book, in which shall be fairly entered' the maker's name, and the mark of every barrel of beef, pork, rice, tar, pitch and turpentine, flour, fish and butter, and the num- ber of barrels inspected of the same mark, the merchant or ship- 43. 1784, c. 206, s. 10.— 1784, c 221, s. 1 and 2.— 1823, c. 1215, s. 1 aiid2. 49. 1821, c. 1081.— 1533, c. 172. 50. 1784, c. 206, s. 11. Chap. LIX.] inspections. 343 per's name causing the same to be inspected, and the time of inspection ; and shall give a certificate of any parcel to any person requiring the same, on payment of ten cents. 51. No beef, pork, rice, fish, flour or butter, shall be shipped Beef, &c. to be on board any ship or vessel for exportation, after the expiration of noTex^orTV^" sixty days from the time the same was inspected, nor any tar, sixty days. pitch or turpentine, after the expiration of twenty days, until the ^^p'gP^j^^ "'^ same shall have been again inspected, and certificate or certificates twenty days. granted in the same manner, as if such commodities had never been inspected, and every person offending herein shall forfeit one thousand dollars ; 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 commodities without being branded. 52. No cooper, or any other person whatsoever making casks. No cooper, &c. shall expose for sale any barrel or half barrel, for the holding of }-°i."sa^ but ac- pork or beef, other than such as are by this act directed to be cm-ding to the made for that use, under the penalty of two dollars, and every ^i^-s^act?^ ° cooper or other person making barrels or half barrels, before they expose the same for sale, shall set his or her proper brand upon the same, which brand shall be recorded in the office of the clerk of the county court, where he or they shall reside, under the pen- alty of twenty dollars for each and every neglect, and every bar- rel of tar, pitch and turpentine shall be branded, in the manner aforesaid, by the maker thereof under the penalty of fifty cents. 53. Every seller or exporter of beef, pork, rice, tar, pitch and ^^l'^'^ °^ t^^- turpentine, fish, flour, butter and flaxseed, shall produce the cer- &c. to produce tificate of the inspector, who inspected the same, and make oath ^^^ inspector's ^ . .^^ • 1 1 r • • CI 1 certilicate, &c. or amrmation, it required, betore a justice oi the peace, on the delivery of the goods, sold or exported, that the several commodi- ties by him to be sold or exported, are the same that were inspect- ed and passed, and do contain the full quantity mentioned in such certificate, without embezzlement to his knowledge, which oath or affirmation the justice shall and he is hereby required to certify on the back of the certificate, which certificate the seller shall deliver to the buyer of such commodities sold, and the person exporting such commodities shall deliver such certificate to the master of the ship or vessel, on board which the same shall be shipped, and if such seller or exporter shall refuse to make oath or affirmation, he shall for every such ofience forfeit and pay the sum of two hun- dred dollars. 54. No master or commander of any vessel or vessels shall jj^'jjg^p'i.^°"yg^_ take on board his ship or vessel any such cask or ban el or other seis for re- inspectable commodity as aforesaid, without being inspected and J^pl^Ydlnv such branded as by this act is required, under the penalty of two bun- articles unin- dred dollars for each offence, one half to the informer, the other *P^^^" • half to the wardens of the county wherein the offence shall be com- mitted to the use of the poor of the said county, to be recovered 51. 1784,0. 206, s. 12. 52. 1784, c 206, s. 15. 53. 1784, c. 206, s 16. 54. 17S4, c. 206, s. 6. 344 INSPECTIONS. [Chap. LIX. with costs, by action of debt in any court of record having cogni- zance thereof. Staves, heading ^^- -^^^ Staves and heading, which shall be sold or shipped for and shingles, exportation, shall be of the following dimensions, otherwise not ow inspec e . j^Qgrchantable, to wit : butt staves shall be five feet nine inches long, four inches broad and an inch thick on the heart or thin edge, and clear of sap ; pipe staves, four feet eight inches long, four inches broad, and three quarters of an inch thick on the heart or thin edge, and clear of sap ; white oak hogshead staves shall be three feet six inches long, three inches wide when dressed, clear of sap, and not less than three fourths of an inch thick in any place ; rough white oak hogshead staves, shall be three feet six inches long, three and a half inches wide, clear of sap and three fourths of an inch thick on the thin edge ; red oak hogshead staves shall be three feet long, three and a half inches wide including sap, and three fourths of an inch thick on the thin edge ; barrel staves shall be two feet eight and a half inches long, three inches wide, clear of sap and three fourths of an inch thick on the edge ; white oak hogshead heading shall be thirtytwo inches long, six inches broad and one inch thick on the heart or thin edge, and clear of sap ; barrel heading shall be nineteen inches long, six inches broad, and three quarters of an inch thick on the heart or the thin edge, and clear of sap ; shingles shall not be less than eighteen inches long, four inches broad, and five eighths of an inch thick ; all such staves and shingles to be made of good sound timber : should they be larger than the dimensions here mentioned they shall not for that reason, be considered unmerchantable. Lumber, how 56. No boards or plank shall be deemed merchantable or passed inspecte . ^^ ^^^^ inspector, that are not free from any spht, not less 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 scaniling 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 thereof : Provided nevertheless, that no staves or head- ing, shingles, boards, plank, or scantling, shall be inspected unless required by the purchaser. Saw mill lum- 57. The inspection of saw mill lumber, on the Cape Fear river, CapeFear how ^"^ ^^ ^^^ Several ports belonging to the same, shall hereafter be inspected. governed by the following rules, to wit : All well sawed, sound boards arid plank with square edges, and one half heart on the sap side, shall be merchantable ; also all well sawed boards and plank, with square edges one half heart on the sap side, made of sound timber and clear of splits and wind shakes for three fourths of their lengths, shall be merchantable, deducting therefrom one half their fractured part ; all well sawed sound scanthng, with square edges, shall be merchantable, and also all well sawed sound scantling with square edges, two thirds of their lengths, and the bark no more 55. 1784, c. 206, s. 13 and 14.— 1322, c. 1157.— 1826, c. 33. 56. 1784, c, 206, s. 14. 57. 1824, c. 1254, s. 1 and 2. Chap. LIX.] inspections. 345 than one inch wide, shall be merchantable ; and all saw mill lum- ber, not being of the description aforenamed, shall be deemed refuse ; any inspector or inspectors, who shall at any time here- after inspect saw mill lumber by any rule or rules different from those prescribed by this section, shall forfeit and pay the sum of one hundred dollars for each and every such offence, one half to the informer, or person suing for the same and the other half to the use of the county where such forfeiture shall be incurred. 58. All steam mill lumber, showing heart one half the length, Steam mill shall be merchantable, and no inspector, having a stated salary from gpe^ted. °^^'^" the proprietors of the steam mills, shall inspect any timber brought to said mills, unless by consent of the seller, under the penalty of fifty dollars, one half to the informer and the other half to the use of the county. 59. The fees of inspectors shall in all instances be paid by the inspector's fees, purchaser or exporter of the articles inspected. paid. °^ ° ^ 60. All staves and heading, shingles, boards, plank and scantling, staves, head- hereafter inspected, shall be culled, and the refuse separated from '"|,' ^^- ^° ^^ the merchantable, except there be an agreement between the pur- chaser and seller, that the same shall not be done. 61 . The purchaser or purchasers of staves or heading, sold and Purchaser of inspected on the Cape Fear river, shall pay to the seller of such jnt^on the ^^ ' staves or heading one half the price for the refuse, which may be Cape Fear, to stipulated to be paid for the merchantable part of such staves or prrce^for the heading. refuse. 62. No inspector shall by himself or others purchase any cullings No inspector or other articles that do not pass inspection, upon pain of forfeit- cuf]in|s,'^&c.^^ ing one hundred dollars. 63. Should any person, who is not a legal or sworn inspector Penalty for any of lumber, staves and heading, presume to act as such or as coun- ^c^or^of^ '"^' ter thereof, such person shall be deemed guilty of a misdemeanor, staves, &c. act- and, on legal conviction thereof before any competent jurisdiction, ^"sas such, shall be fined the sum of one hundred dollars, one half to the use of the county, where such offence may be committed, and the other half to the use of the informer. 64. The several fines and forfeitures by this act inflicted, for Ji°^^ ^"^^ ^"^ which no method of recovery or application is herein before direct- under this act ed, shall and may be recovered with costs, by action of debt, '°^^ recovered before any jurisdiction having cognizance thereof, one half to the use of the prosecutor, and the other half to the county, wherein such penalty shall be incurred, to be applied by the justices of the county court, towards the lessening of the county tax. 65. In case the purchaser and seller cannot agree as to the Disputes about amount to be allowed for extra cooperage, and defective barrels, f^theTown'^oF it shall be the duty of the inspector of naval stores and provisions Wilmington, ■^ ^ how to be de- termined. 58. 1828, c. 26. 59. 1791, c. 345, s. 6. 60. 1830, c. 32.— 1324, c. 1254, s. 4. 61. Amendment. 62. 1784. C.206, s. 19. 63. 1824, c. 1254, s. 3 amended. 64. 1764, c. 206, s. 13. 65. 1829, c. 50. VOL. I. 44 346 INTERNAL IMPROVEMENTS. [ChAP. LX. Regulations as to the sale of fire wood in towns. Penalty on in- spectors for taking greater fees than the law allows. in the town of Wilmington, at the instance of either the purchaser or seller, to establish the amount to be allowed for extra cooperage and defective barrels, and such estimate shall be conclusive ; and it shall not be lawful for any other person to estimate the same, but by the consent of the purchaser and seller ; and should any per- son, contrary to the provisions of this act, estimate the same, he shall forfeit and pay the sum of ten dollars, to be recovered by warrant before any justice of the peace for the county of New Hanover by any person suing for the same. 66. All fire wood, sold in the incorporated towns of this State, shall be sold by the cord and not otherwise ; and each cord shall contain eight feet in length, four feet in height, and four feet in breadth, and shall be corded by the cutter or seller under the pen- alty of two dollars, for each offence, to be recovered against the owner or seller to the use of the informer. 67. If any of the inspectors, at any of the several inspections of this State, shall take and receive any greater fees than are by law allowed, he so offending shall forfeit and pay the sum of ten dollars for each and every offence, to be recovered by any person suing for the same, for his own use, before any jurisdiction having cognizance thereof. 66. 1784, c. 211. 67. 1737, c. 265, s. 4. CHAPTER 60. INTERNAL- IMPROVEMENTS. AN ACT TO ESTABLISH A FUND FOR INTERNAL IMPROVEMENT, AND TO CREATE A BOARD FOR THE MANAGEMENT THEREOF. Fund estab- lished. Section 1. Fund established. 2. Of what it shall consist. 3. Board of internal improvements in- corporated . 4. Board may appoint a secretary. 6 . Power of the board to make rules, &c. 6. Their duty in making contracts. 7. Their power in subscribing to public works. Section 8. Fund to be deposited in the treasury and to be drawn for by the board. 9- The board to keep a record of their proceedings, and report to the Gen- eral Assembly. 10. The State to be a stockholder in any company to the amount she may advance. 1. Be it enacted by the General Assembly of the State of JSTorth Carolina, and it is hereby enacted by the authority of the same, That a fund shall be and the same is hereby created, to be de- 1. 1819, c, 959, S. I. Chap. LX.] internal improvements. 347 nominated " The Fund for Internal Improvements," and to be applied exclusively to the internal improvement of this State, un- less the necessities of the State shall render it necessary for some future legislature to apply the said fund or a part thereof to some other purposes of state. c: 2. The said fund shall consist of the net proceeds of the sales Of what it of the lands lately acquired by treaty from the Cherokee Indians, ^ ^ consist, and also of the dividends of the stock owned by this State in the bank of Cape Fear. 3. For the purpose of preserving and improving this fund, and Board of in- of disbursing such portions of it as the General Assembly may ^™^g i^corpo^-' from time to time direct to be applied to any object of internal rated, improvement, it shall be and the same is hereby vested in a corpo- rate body, to be styled " The President and Directors of the Board of Internal Improvements," in which name they shall have a common seal and perpetual succession, subject to the limitations hereinafter provided, shall be capable of suing and being sued, pleading and being impleaded, and shall have and enjoy all the rights and privileges of a corporation. 4. The president and directors of the board shall have power to Board may ap- appoint a secretary to record their proceedings, and the person so {'"j'^^ ^ ^^"^' appointed shall receive for his services the sum of three dollars and no more per diem, for each day the board shall be in actual session, to be paid out of the revenue of the fund for internal im- provement. 5. The president and directors of the board may, at any of their Power of the meetings, enact, alter or amend such rules as to them may seem ^"lYg'^ ^j,'" proper for the purpose of regulating the order of their proceedings ; they may adjourn the board for any period not exceeding six months, and shall have power to make and establish by laws, rules and regulations for the better ordering of the conduct of their offi- cers, agents and servants as to them may seem expedient : Pro- vided the same be not inconsistent with the constitution and laws of this State and of the United States. 6. Whenever the legislature shall direct any public improvement Their duty in in this State, it shall be the duty of the board for internal im- t^acts!^ '^°'^* provements to let the same out by contract, and take from the person or persons, so contracting, a bond with good and sufficient security, payable to the State of North CaroHna, in double the sura paid or contracted to be paid, with the condition that he or they will faithfully perform his or their contract according to the plans or specifications agreed on. 7. The president and directors of the board shall be and they ^^"cribin'"to" are hereby authorized to subscribe in behalf of the State to such public works, public works, as the General Assembly may from time to time agree to patronize, such portions of the fund for internal improve- 2. 1819, c. 989, s. 2.— 1821, c. 1083. 3. 1819, c. 989, s. 3. 4. 1819, c. 989, s. 7. 5. 1819, c. 989, s. 9. 6. 1825, c. 1294. 7. 1319, c. 989, s. 11. 348 INTERNAL IMPROVEMENTS. [ChAP. LX. Fund to be de- posited in th.c treasury, and to merit as may be directed by law : Provided, that no payment shall be made of any appropriation to any corporation for the purpose of internal improvement, created exclusively by the authority of this State, unless such corporation shall put itself under the direc- tion of the board of internal improvement. 8. The fund for internal improvement, subject to the orders of the president and directors of the board, shall be deposited in the be drawn for by treasury of the State and kept distinct and apart from all public the board. money ; it 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 president ; the treasurer shall keep a fair and regular account of all such disbursements, and care- fully preserve the certificates, upon which the same shall have been made, and shall render an account thereof to the General Assem- bly, at the same time at which he renders his annual account of the disbursements of the ordinary revenue ; once in every year the board of internal improvements shall depute a committee of their body to examine the accounts of all disbursements made by order of the board during the year, and to compare the accounts with the treasurer's books and the certificates giving authority for the payment of the several sums or stock entered thereon. 9. It shall be the duty of the board for internal improvement to keep a fair and accurate record of all their proceedings, which shall at all times be open to the inspection of the members of the General Assembly and of the president and directors and other officers interested therein. They shall report to the General As- sembly, at or near the commencement of every session thereof, the exact state of the fund for internal improvement, the progress, condition and net income of all the public works under their charge, the surveys, plans and estimated expense of such new works as they may recommend to the patronage of the General Assembly, together with such other important information, as they may have it in their power to collect, in relation to the objects committed to their trust. 10. When an appropriation shall be made of any part of the many company ^^"^^^^^'^ ^^"^ *° ^^^® improvement of any river, canal or road, the to the amount improvement of which has been already or shall hereafter be com- mitted to, and the property therein vested in, a corporation, then and in that case the State shall be considered a stockholder in said company or corporation, and shall have as many shares as may correspond with the amount of the money, thus advanced from and appropriated out of said fund for internal improvement, and the acceptance by any company or corporation, as aforesaid, of such advance of money by the State shall and the same is hereby de- clared to be the expression of the consent of the said company or corporation to the terms of the advance on the part of the State, as expressed and intended in this section. The board to keep a record of tneir pro- ceedings, and report to the General As- sembly. The State to be a stockholder she may ad- vance. 8. 1819, c. 989, s, 10. 9. 1819, c. 989, s. 12. 10. 1819, c. 989, s. 12. Chap. LXL] internal improvements. 349 CHAPTER 61. AN ACT TO AID THE INTERNAL IMPROVEMENTS OF THIS STATE. Section !• The surplus revenue of the United States appropriated to the internal improvement fund. 2. Who to constitute the board of inter- nal improvement. 3. Meetings of the board — Compensa- tion of the members. 4. Public treasurer to keep the accounts — may employ a clerk for that pur- pose. 5. Moneys belonging to the fund to be deposited in the banks. 6. State, upon certain events, to sub- scribe to certain rail road companies — Payments upon such subscrip- tions, how to be made. Section 7. Board to lend out the money until such subscriptions are wanted. 8. In w^hat event the State shall be re- leased from its obligations to sub- scribe. 9. Surplus revenue of the United States only, pledged for such subscriptions. 10. Governor to cause a publication of the payment of any subscription. 11. Profits of the State subscription to be added to the literary fund. 12. One hundred thousand dollars from the internal improvement fund, to be appropriated to the contingent expenses of the State government. 13. When this act to be in force. 1. Be it enacted by the General Assembly of the State ofJS'oTth Carolina^ and it is hereby enacted by the authority of the same, That besides the funds heretofore set apart for internal improve- ments, there shall be added and appropriated for that purpose, all the surplus revenue, received by this State from the treasury of the United States, under the late act of congress to regulate the deposits of the public money, after deducting the sum of three hundred thousand dollars, which is to be devoted to the redemp- tion of the public debt of the State ; the sum of three hundred thousand dollars, which is to be paid for stock subscribed in the bank of Cape Fear ; and the portion of said surplus which is to be added to the literary fund, and to be applied to draining the swamp lands, according to the provisions of sundry acts of the present General Assembly. 2. The board of internal improvements shall hereafter consist of the governor of the State for the time being, who shall be ex officio president thereof, and of two commissioners, to be appointed annually by the governor, by and with the advice of the council of state ; any two of whom shall constitute a board for the transac- tion of business, and the said board shall have the same powers and authority, and be subject to the same duties and restrictions as the board of internal improvements heretofore existing ; and in case of vacancies occurring in said board, the governor and council may fill the same as before directed ; and they may, in like man- ner, remove any of the commissioners appointed as aforesaid. The surplus revenue receiv- ed from the United States appropriated to the fund for internal im- provement. Who to con- stitute the board of in- ternal im- provements. 1. 1336, c. 22, s. I. 2. 1836, C.22, s. 2. 350 INTERNAL IMPROVEMENTS. [ChA.P. LXI. Meetings of 3. The sald board may hold its sessions wherever and whenever compensation the govemor may direct ; and the said commissioners shall receive of themem- for their services the sum of three dollars each per day, and their "^" travelling expenses for the time they may be employed in the pub- lic service. Public treas- 4. The public treasurer shall keep the accounts of the said urer to keep board in the same manner as heretofore ; and for that special pur- IJie accounts — i i may employ a pose may employ a clerk at a sum not greater than three dollars clerk for that pgj. ^^y^ ^qj. ^^g ^j,-jjg ^e may be engaged as such : Provided, that his compensation shall not exceed the sum of five hundred dollars in any one year. Moneys belong- 5. All the moneys which are hereby appropriated to the fund ;"&j^^°^^^ ^^'^'^'for internal improvement, as well as any other moneys which may iied in the come into the treasury of said board, shall be deposhed in the banks. banks of this State, until they shall be disposed of in manner as hereinafter directed. State, upon cer- 6. Whenever it shall be made to appear to the said board of in- subscrfb"' to^° ternal improvement, by a certificate, under the corporate seal of certain rail the Wilmington and Raleigh Rail Road Company, signed by their panies?'^' treasurer and countersigned by their president, that at least three fifths of the whole capital stock of said company, which may be necessary to construct said rail road from the town of Wilmington to Weldon, on the Roanoke river, have been subscribed for and taken by individuals or corporations, and that at least one fourth of such private subscriptions, of not less than three fifths of the whole capital as aforesaid, has been actually paid into the hands of the said treasurer, and that the remainder of said subscription is either so paid, or is made by solvent persons fully able to pay, and the said board shall be satisfied of the truth thereof, they shall be, and they are hereby authorized and required to subscribe, on be- half of the State, for the remaining two fifths of the capital of said- Payments upon company ; and said subscription on the part of the State shall be tions.howtobepaid in manner following, that is to say : one fourth thereof shall made. be paid upon such certificate as aforesaid, at the time of subscrip- tion ; one other fourth upon a like certificate, that another fourth of such private subscriptions has been paid by the subscribers ; the next fourth upon a like certificate ; and the residue upon a like certificate. And the said board are also authorized and required to subscribe and pay, on behalf of the State, to the Fayetteville and Western Rail Road Company, two fifths of the capital stock which may be necessary to construct said rail road from the town of Fayetteville to the Yadkin river above the Narrows ; which sum shall be ascertained by actual surveys and estimates of a com- petent engineer. And they shall likewise subscribe and pay on behalf of the State, to the North Carolina Central Rail Road Com- pany, two fifths of the capital stock, which may be necessary to construct the rail road last aforesaid from the port of Beaufort to the town of Fayetteville, which shall be also ascertained by a skil- 3 1836, c. 22, s. 3. 4. 1836, c. 22, s. 4. 5. 1835, c 22, s. 5. 6. 1836, c. 22, s. 6. Chap. LXL] internal improvements. 351 fill engineer as aforesaid ; the subscriptions and payments to the two latter companies being under the same rules, regulations and ^ restrictions, as are herein before provided as to the rail road com- pany first mentioned : Provided^ that the said board, by virtue of such subscriptions and payments on behalf of the State, shall ap- point two fifths of the whole number of directors of each of the corporations aforesaid ; and that in all general meetings of the stockholders, in any of said companies, the said commissioners of internal improvement, or any other representative of the State, whom the said board may appoint, shall be entitled to two fifths of the whole number of votes, which may be given at such meeting. 7. Until the said funds for internal improvements shall be ^°^J^ to lend actually required for the payment of the subscriptions herein di- until such sub- rected to be made, or for some other object to which they shall *'="Pt^°^s ^"^^x^* be devoted by the legislature, it shall be the duty of the board aforesaid, and they are hereby authorized and required, to lend the same upon good security, either to individuals or corporations, taking bonds therefor payable semiannually, but capable of renewal should the board not direct otherwise, and bearing interest from date ; which said bonds shall be recorded by the treasurer of the board, in a book kept for that purpose, and shall be deposited as special deposites in one of the banks in this State. 8. If any of the aforesaid incorporated companies should fail to In what event obtain the requisite number of private subscribers to give to such ^e released company a corporate existence by the terms of its charter, for oneffo^.its ob- '■ r 1 r 1 T f 1 ^ • r^i ligation to sub- year n-om and alter the adjournment oi the present session oi the scribe. General Assembly, or shall fail to commence the construction of their rail road, and to call in and receive one fourth of the payment on the subscription as aforesaid, before the next regular biennial session of the same, or shall fail to complete the same within the time limited by their acts of incorporation, then the State shall be no longer bound to make or pay the subscriptions aforesaid. 9. No other fund, than the portion of the surplus revenue first Surplus rev- aforesaid, shall be considered as pledged for said subscriptions ; unrte°d'^st'a^tes and the State may cease to be a subscriber after said surplus is only, pledged ovViQiiatorl Vint oItqII Vio q ctnnlrlir>lrl Ar tn tlip umniint nf sharCS for t^"".®"?" '''^"" scriptions. which she has actually paid in any of said companies. 10. It shall be the duty of the governor, as president of said Governor to board, during the recess of the General Assembly, to cause publi- ij^^tf^^ ^f\hg cation of any subscription or payment, made in pursuance of this payment of any" 1 !• IT •tJi.+k^ subscription. act, to be made in one or more public newspapers printed at tne city of Raleigh, as soon thereafter as the same can be conveniently done. 11. All the profits accruing to the State, from her subscription Profits of the under this act to internal improvement, and from loans which i^^^y fcript?on"t''o be be made by the board, shall be added to the literary fund. added to the 12. From the fund set apart and estabUshed by this act, to aid "terary fund. 7. 183G, c. 22, s. 7. 8. 1836, c. 22, s. 8. 9. 1836, c. 22, s. 9. 10. 1836, c. 22, s. 10. 11. 1836, C. 22, s. 11. 12. 1S36, c. 36. s. 1. 352 $100,000 from the internal im- provement fund to be ap- propriated to the contingent expenses of the State gov- ernment. When this act to be in force. JUSTICES OF THE PEACE. [ChAP. LXII. internal improvements in this State, the sum of one hundred thou- sand dollars shall be and the same is hereby appropriated for de- fraying the civil and contingent expenses of the State government, if the same shall be deemed necessary and requisite ; and in the disbursement of the moneys belonging to said fund, the appropria- tion hereby made shall be preferred to those herein before de- signated. 13. This act shall be in operation from and after its ratification. 13. 1836, c. 22, s. 12.— c. 36, s. 2- CHAPTER 62. JUSTICES OF THE PEACE AN ACT CONCERNING THE POWER AND JURISDICTION OF JUSTI- CES OF THE PEACE. P Section 1. Within what time a person appointed a justice must take the necessary oaths for qualifying himself— Pen- alty for acting without qualifying. 2. No justice who is a candidate for the office of sheriff, &c. shall vote or sit on the bench at the election — Penalty for so doing. 3. A justice removing and remaining out of the county twelve months, to lose his office. 4. Power of justices in the counties. 5. Justices not to practise as attorneys in the county courts of their own counties, nor to act as clerk, sheriff, &c. — Accepting such appointments to vacate his office, and he shall not act as a justice without a re-ap- pointment. 6. Justice's jurisdiction in civil matters. 7. Warrants from a justice when re- turnable—Officer to take bail when required. 8. A defendant arrested and refusing to give bail to be committed — Where warrant to be tried, and duty of the officer in relation thereto. 9. Regulations respecting bail — How they are to be proceeded against. 10 Bail may arrest principal in order to surrender him. Section 11. Justice's execution how to issue and be returned — Defendant may stay execution by giving security — How such security to be given. 12. No stay allowed on a former judg- ment. 13. Justice may upon sufficient cause shown, postpone or continue a trial. 14. Depositions of witnesses, when al- lowed to be read on a trial. 15. When a judgment is obtained in the absence of a party, within what time and how a new trial may be obtained. 16 Justice's execution when returnable, to whom to issue, and against what property. 17. Justice to direct witnesses to be summoned, which shall be done by the officer — Penalty on witnesses for not attending. Execution against a person removing out of the county, how to be pro- ceeded on. How a judgment of a justice may be removed from one county to another. A justice may accept an appoint- ment under the United States. Justice's process not to abate for want of form. 18. 19. 20. 21. ni^i-i' &l ^1 Chap. LXIL] justices of the teace. 353 Section 22. Either party may appeal from a jus- tice's judgment. 23. How security for appeal shall be giv- en and proceeded against. 24. Justice to return appeals to court on or before the second day of the term, and to summon witnesses. 25. How and in what time a party desi- rous to appeal or stay execution, but is unprovided with his sureties, shall proceed to obtain such appeal or stay of execution — How a party shall proceed who was unable to attend the trial from sickness or other sufficient cause — Duty of the justice and constable, upon such appeal being granted, or stay al- lowed. 26. Execution may issue before the stay or appeal is granted. Section 27. Upon security given for the stay or appeal, the officer must return the execution to the justice. 28. Justices may restrain rioters and disturbers of the peace. 29. Duty of two justices, with the sheriff, in suppressing unlawful assemblies, riots, &c. 30. The justices dwelling nearest, to per- form this duty. 31. All magistrates to act in suppressing riots, &c. 32. Constables to serve notices. 33. How the notice to be served and re- turned. 34. Penalty on constables for failing to serve notices. 35. Notice may be given and proved as heretofore. 1. Be if enacted by the General Assembly of the State of JYorth Carolina^ and it is hereby enacted by the authority of the same, That every person appointed a justice of the peace, before enter- ^^'thln what . . •• tini6 a, t)Grsoii ing upon and executing the said office, shall, within twelve months appointed a thereafter, and not after that time unless re-appointed, pubhcly in Justice must the court house of his county on a court da}^, take the oaths ap- sary oaths for pointed or which shall be appointed by the General Assembly for quahfymg him- the qualification of pubhc officers, and also an oath of office. And if any person shall presume to execute the office of a justice of the Penalty for act- peace, without first qualifying himself in the manner by this act "J^^jj^^j "*• required, he shall for every such offence forfeit and pay the sum of two hundred dollars, one half thereof to the county, the other half to the person suing for the same, to be recovered with costs by action of debt in any court of record within this State where the same is cognizable. 2. No justice of the peace, being a candidate for the office of a No justice, who sheriff, county court clerk, register, entry taker, surveyor, county f^j.^^j^g^jj^^^^^^j. trustee or ranger of his county, shall vote or sit on the bench at the sheriff, &c. election of such officer. And if any justice of the peace shall sit gft^^l^^^^g^f^^^^jj on the bench or vote in such election, his vote shall not be count- at the election, ed, and he shall forfeit and pay for every such offence the sum ofpenaltyforso one hundred dollars, to be recovered by action of debt, one half to doing. the person suing for the same, and the other half to the use of the county. 3. When any justice of the peace hath or shall remove himself a justice re- out of the county for which he is or shall be appointed, and shall ™oyip? and re- . t ■ -11 ■ 1 • • maining out of not return within twelve months to reside therein, his appointment the county 12 shall be void : and it shall not be lawful for such justice to act as JJ|°"J^®j^*° ^"^^ a justice of the peace, unless re-appointed by the General Assem- 1. 1777, c. 115, s. 52.— 1793, C. 382, s. 5. 2. 1793, c. 382, s. 3.— 1794, c. 418. 3. 1793, c. 332, s. 4. VOL. I. 45 354 JUSTICES OF THE PEACE. [ChAP. LXII. Power of jus lices in their counties. pointment. Justice's juris- diction in civil matters. bly, under a penalty of one hundred dollars for every such illegal act, to be recovered by action of debt, one half to the use of the county, the other half to the person suing for the same. 4. All justices of the peace shall, within their respective coun- ties, have full power and authority to maintain, keep and preserve the peace, solemnize the rites of matrimony and issue necessary process to enforce the collection of debts and other contracts coming within their jurisdiction. Justices not to 5. No justice of the peace shall practise as an attorney in the torneys in^the courts of pleas and quarter sessions of the county for which he is county courts of such justice, uor shall he be appointed or act as clerk or deputy tieTnOT^o^act' clerk thereof, or as sheriff or deputy sheriff, constable or county as clerk, sher- trustee, or jailer, within his county. And if any justice shall ac- Acceptingsuchcept any such appointments, he shall thereby vacate his office as appointments such justice : and if he shall, after the acceptance of any such ap- fice^andhe^° "pointment, act as a justice, without a re-appointment by the Gen- shall not act as eral Assembly, he shall for every such act forfeit and pay the sum out^fre-ap- of One hundred dollars, to be recovered in any court having cogni- zance thereof, in the name of the wardens of the poor of such county, to be by them applied to the use of the poor. 6. All debts and demands due on bonds, notes and Hquidated accounts, when said accounts shall be stated in writing and signed by the party from whom the same shall be due, when the principal does not exceed one hundred dollars, although the principal and interest together may exceed that sum, and all debts and demands of sixty dollars and under for a balance due on any special contract, note or agreement, or for goods, wares and merchandise sold and delivered, or for work or labor done, or for specific articles whether due by obligation, note or assumpsit, or for any judgment which may have been granted by a single magistrate and no execu- tion have issued thereon within twelve months, or for any forfeiture or penalty incurred by any act of the General Assembly, shall be cognizable and determinable by any one justice of the peace out of court. 7. All warrants issued by a justice of the peace shall be made a justice when returnable on or before thirty days from the date thereof, Sundays excepted, and not after, and when issued against any person, •^ executors and administrators and female debtors excepted, shall command the sheriff, constable or other officer, to take the body . of the person therein mentioned as defendant, if to be found in his county, to answer the complaint of the plaintiff in such warrant be- Officer to take ^qyq gome iustice of his county ; and such officer, when required l3Q.i1 when re- . , . by the plaintiff, shall take bond with sufficient security of the party arrested in double the sum for which such person shall be held in arrest, (which sum and how due shall be expressed in the war- rant,) conditioned for his appearance at a certain time and place, therein to be specified, before some justice of the county where Warrants from quired. 4. 1741, c. 23, s. 1.— 1778, e. 134, s. 1.— 1777, c. 11.5, S. 56. .'■>. ISOS, c. 747, s. 1,2 and 3.— 1809, c. 707, amended. 6. 1777, c. 115, s. 62. — 1785, c. 233, s. 4. — 1786, c. 253, s. 7.— 1794. c. 414, s. 1.— 1802, c. fiOO, s. 1.— 1S03. c. 627, s. 1.— 1820, c. 1045, s. 1.— 1823, c. 9.— 1829, c. 32. 7. 1794, c. 414, s. 2 and 6.— 1823, c. 1209. Chap. LXIL] justices of the peace. ' 355 the warrant issued, which bond shall be assigned by such officer to the plaintiff and returned with the warrant and shall be filed by the justice that shall try the warrant with the other papers in the suit ; and in case the sheriff, constable or other officer shall fail or neglect to take such bond wuth security as aforesaid, he shall be held and deemed special bail and the plaintiff may proceed to judgment against him according to the rules hereinafter prescribed. 8. When any sheriff, constable or other officer shall serve a A defendant warrant on any person or persons, who shall refuse to give bond refusin<^ to and security for his or her appearance as aforesaid, such officer is gi'^e bail, to be hereby required to commit such person or persons to the jail of '^°"™^^ ^ ' his county, in order that he may have such person or persons forth- coming at the day appointed for trial, and it shall be the duty of such officer to produce his prisoner at such trial, and all warrants. Where war- whether by summons, arrest or attachment, shall be heard or de- t^gjj^ ^^°JJ^'^^t termined on the day appointed by the officer serving the warrant of the officer m as aforesaid, which day shall be on or before the return day get'^®^^^^°°^^^'^*^^°- forth in the warrant, unless the justice shall for good reasons put off the trial to some other day at his discretion. And in case the plaintiff shall fail to attend or prosecute his suit on the day ap- pointed as aforesaid, the defendant appearing shall be discharged, and it is hereby declared to be the duty of the officer, serving a warrant, to notify the plaintiff" of the time and place appointed to try and determine the cause : Provided, that when the sheriff, constable or other officer shall have committed any defendant to jail as aforesaid, it shall be the duty of such officer to give imme- diate notice thereof to some justice in the county, and such justice shall appoint a day for the trial, and notice of the time of such trial shall be given and served on the plaintiff" by the officer who served the warrant. 9. All bail, taken according to the directions of this act, shall Regulations re- be liable to the recoverv of the plaintiff, but the plaintiff after final 1?^'^^^",° ^^^^• • 1 1 11 1 • • 1 f -1 -1 How they are judgment sliallnot take out execution against the bail, until an exe- to be proceeded cution against the body of the defendant be first returned by the '^S'^i'^^^- sheriff', constable or other officer that the defendant is not found in his county, and not until a notice in writing, issued against the bail by the justice who has possession of the papers in the original suit, hath been made known to the bail ; and after the return of such execution against the principal and notice against the bail, execution may issue against the principal and bail or any of them or any of their estates, unless the bail shall make it appear that the principal is dead, or that the judgment has been satisfied, or unless the bail shall surrender the principal, at or before the return of such notice to the officer who served the notice, in which latter case the justice shall commit the principal to the jail of his county until he shall satisfy the judgment and costs. 10. Such bail shall, at any time before final judgment liad jS^gj^p'JI^^-p^'j -^ against him, have full power and authority to arrest the body of order to surren- S. 1794, c. 414, s. 3. 9. 1794,0. 414, s. 4. 10. 1794, c 414, s. H. 356 JUSTICES OF THE PEACE. [ChAP. LXIL his principal, and secure him, until he shall have an opportunity of surrendering him in discharge of himself to the officer, who made the arrest or served the notice, and such officer is hereby required to receive such surrender and hold the body of the defendant in custody, as if bail had never been given. eSi:?howto, j^-. .y^t^^ '^ gi;^" by a single magistrate, it shall issue and be re- ^6 m his power or that of any other justice of the peace to award turned. execution against the goods and chattels, lands and tenements or body of the party cast, which process shall be executed and re- turned by the sheriff, constable or other lawful officer to whom the same may be directed, in the same manner as other writs of fieri facias or capias ad satisfaciendum are to be executed and return- Defendant maySd. Provided ahcays, that where a judgment shall be eiven by a byliTglr Justiceof the peace as aforesaid, execution thereon shall be stayed curfty. in the lolloivmg manner, viz : for all sums not exceeding four dol- lars, twenty days ; for all sums above four dollai-s and not exceed- ing ten dollars, sixty days ; for all sums above ten dollars and not exceeding twenty dollars, one hundred and twenty days ; and for How such se- f'- sums above twenty dollars, six months. And for the true and curity to be faithful payment thereof with interest and costs, the party praying such stay of execution shall, if required, give sufficient security, and the acknowledgment of such security entered by the iustice and signed by the party shall be sufficient to bind him : and if the judgment shall not be discharged, at the time to which the execu- tion has been stayed, then it shall be lawful for the justice, who has possession of the judgment, to issue execution as aforesaid against the principal and security. No stay allow- 12. When any warrant shall be granted on a former iudgment l^^^llr^' °?/^ JT^ "^^"^^^ ^^^^"^ ^^^ former judgment shall hi evidence of the debt, subject to such deductions as the defendant may make appear to have been paid, and if judgment in such case passes agamst the defendant, he shall not be entitled to any stay on the same. J j i^on'suSnt ^^' ^^^^^ justice of the peace, before whom a warrant is Se'show" brought for trial, shall have full power and authority, on sufficient ar a" ^''''T '^°''^" °" °''^' ^^ ^''^'^' '^^ plaintiff or defendant, their trial. agent or attorney, to postpone from time to time or continue for trial the same. Provided, such continuance or postponement shall in no case exceed thirty days, and it shall be lawful for any jus- tice of the peace to act on said postponement or continuance, the original date of the warrant exceeding thirty days notwithstanding. Sr/sSwhen •,^- ^r °"^ '•'u-'^^f ^^^^^ ^^™"t' the testimony of a XwedTbe witness, not resident withm the county where the same is pend- readonatrial.ing, IS required by either party, the deposition of said witness taken by a single magistrate of the county where the witness may be, upon reasonable notice to the adverse party of the time and place of taking the same, shall be read in evidence, and the mag- 11. 1794, c. 414, s. 1.— 1820, c. 1045, s. 1. 12. 1802, c. 609, s. 2.-1803, c. 627, s. 2. 13. 1803, c. 627, s. 3. 14. 1803, c. 627, s. 7.— 1831, c. 9. Chap. LXIL] justices of the peace. 357 istrate, if the deposition is taken within this State, shall have power to issue a summons to compel the attendance of the witness. 15. Whenever a iudement shall be 2;iven in the absence of ^^en ^j"<^g;- . , , . . ™ 1 r 1 1 • ■ r 1 II ment is obtain- either plamtin or delendant by any justice ol the peace, wnetner ed in the ab- execution hath been issued or not, on application of such absent s^"c^.°f.^ P,^''- , . , ' . . .'^ *■ , r 1 J ty, within what party, his or her agent or attorney, within ten days alter tne date time and how a of said judgment, to the justice who awarded the same, on suffi- ?®W"^^ ^^^ cient cause shown on oath or affirmation, why he, she or they could not attend the day of trial, it shall be the duty of the said justice to issue his order to the plaintiff, 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 reconsidera- tion : Provided, that the applicant shall give sufficient security for his appearance. It shall also be the duty of the justice aforesaid to issue his summons, directed 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, to whom the summons may be directed, shall receive, for his trouble in executing the same, the same fees he is entitled to for summoning witnesses, to be taxed against the party at whose instance it issued. 16. All executions, issued by aiustice of the peace against the Justice's ex- .'J F o ^ ecution, when estate of any person or persons, shall be made returnable in three returnable, to months from the date thereof, and shall be directed to the sheriiF, ^K"'^^^" ^^.*^^' constable or other lawful officer, commanding him'that of the goods what property, and chattels of the party cast he make such sum or sums of money therein mentioned, or, for want of such goods and chattels to sat- isfy said execution, then he levy on lands and tenements of such person or persons and make return thereof to the justice, who issued the same, setting forth on the execution the money he has made of the goods and chattels, and what lands and tenements he has levied on, where situate, on what water course, and whose land it is adjoining ; and the justice, to whom the return is made, shall return such execution with all other papers on which the judgment was given, to the next court to be held for his county, which land shall by order of said court be sold by the sheriff of said county, or so much thereof as shall be sufficient to satisfy said judgment, in the same manner as real property is sold by writs of fieri facias or venditioni exponas, issuing from such court ; and the clerk of the court, where such papers are returned, shall, in a well bound book kept for that purpose, record the whole of the papers and proceedings had before the justice ; and when any execution shall be returned to a justice not fully satisfied and discharged, it shall be lawful for any justice of the peace for said county to issue another execution for the sum so remaining due on the former exe- cution, y 15. 1794, e. 414, s. 19. — 1803, c. 627, s. 6. 16. 1794, c. 414, s. 1.— 1803, C. 627, s. 6. 353 JUSTICES OF THE PEACE. [ChAP. LXII. Justice to di- 17. Any justice of the peace is hereby authorized and required, to'be^su'mmon- ^^ application of either plaintiff or defendant named in any orig- ed, which shall inal process, issued by a single justice, to direct the sheriff, con- officer!^ ■*" ^ ^ stable or other lawful officer, by an order in writing on the process, to summon witnesses to appear and give testimony in such suit, at the time and place appointed for trial ; and each witness, faihng to Penalty on wit- appear and give evidence, shall forfeit and pay the sum of four dollars, aue^nd'n"'^ ^°^ ^° '''^^ party at whose instance he was summoned, and further be lia- ble to the action of the party aggrieved for damage sustained by his non-attendance, which fine shall be recovered before any justice of the peace, unless such witness on affidavit or otherwise, shall shew sufficient cause to the contrary, subject to appeal as in other cases. Execution 18. AVhen any execution shall issue to a sheriff, constable or son^emovino-' Other officer, in virtue of a judgment obtained before any justice of out of the the peace, and the person or persons, against whom such judgment iie^proceedrd*^" ^^J ^® obtained, shall remove him or themselves to any other on. county within this State, and the sheriff or other officer cannot find any property, whereon to levy said execution, then and in such case the said sheriff or other officer shall return such execution to the next court, to be held for said county, and the plaintiff on application shall be entitled to an execution for the whole or any part of said execution which remains unpaid by the return of such officer ; and the clerk, by order of the said court, shall make a record of the same, and issue execution to the county, where the defendant or defendants reside, in the same manner and under the same rules as in cases of judgments obtained in said courts. How a judg- i9_ ii gjiaii aj^(j jnay be lawful for any person, having a judgment ti'c^e"may be re- or execution agaiust any person from a justice of the peace, and moved hom tj^g ggifj defendant has no property in the county whereon the same one county to i i • i i • i i i r i another. Hiay DC levied, to return the execution to the clerk ot the county, in which judgment was obtained out of court, and it shall be the duty of the clerk to certify under seal that the justice or justices, who gave judgment, was an acting justice or justices of said county ; on which certificate any justice or justices, in any other county in this State, shall and may award execution, for the sums therein expressed, against such defendant or defendants. A justice may 20. It shall and may be lawful for any justice of the peace, who pointment^m- ^^^ '^^ °^' "^^7 ^® hereafter appointed, to accept and exercise der the United any civil office or appointment of profit or trust, under the author- States, jj^y Q^ jj^g United States, the duties of which appointment shall be confined to this State- Justice's pro- 21. No process issued by a justice of the peace shall be set abate for want aside for the want of form, if the essential matters are set forth of form. therein. Either party 22. If either of the parties to a trial before a justice of the peace may appeal ■* j i from a justice's judgment. 17. 1794, c. 414, s. 21. 13. 1794, c. 414, s. 20. 19. 1797, c. 477. 20. 1811, c. 811. 21. 1794, c. 414, s. 16. 22. 1777, C. 115, s. 63 Chap. LXIL] justices of the peace. 359 shall be dissatisfied with the judgment given thereon, he may ap- peal to the next term of the court of pleas and quarter sessions, first giving security for prosecuting such appeal with effect. 23. In all cases where appeals shall be granted from the iudg- J?°^^ secumy rj; o ^ J ^ o tor appeals to ment of a justice, the acknowledgment of the security, subscribed be given and by him and attested by the justice, shall be sufficient to bind the P™9eeded •^ • 1 ■ 1 1 J r 1-1 r ^ j against. security to abide by and periorm the judgment oi the court, and where judgment shall be against the appellant, the same shall be entered on motion against the security, and execution shall issue against the principal, or against both principal and security, at the option of the appellee. 24. When any justice of the peace shall grant an appeal to the Justice to re- • .. turn £iuD63,Is to county court, it shall be the duty of such justice to return such ap- court on or be- peal, on or before the second day of the court, to which it may be |°r*^ the second returnable, and he is hereby authorized and required, on apphca- term, and to tion of either of the parties, to issue subpoenas, directed to the s^™"i°'i ^^'^'- • • H6SSGS sheriff or other lawful officer in any county in this State, for wit- nesses to appear and give testimony at the court, to which such appeal is returnable ; and the officer, to whom such subpoena is directed, and the witnesses summoned in consequence thereof, shall be under the same rules and regulations, and subject to the same penalties, and entitled to the same pay, privileges and emoluments as if such subpoenas had issued from the clerk of the court, to which such appeal shall be returnable. 25. When any person, against whom a judgment shall be ren-Howandin dered by a civil magistrate, shall be desirous to appeal to the p^^ny desirous county court, or to stay the same, and shall be unprovided with to appeal or security on the day of trial, upon the request of such person, his LT^is unpro°'^' agent or attorney, it shall be the duty of the justice rendering such vided with his • J i ^ i 1 i J / ■ 1 • •*• sureties, shall judgment to grant such person ten days to give his securities proceed to ob- for an appeal or stay of execution, as the case may be, and he tai" such ap- shall make an entry thereof on the warrant. And when judgment execmio^n^^ ° shall be entered against either plaintifi' or defendant in their ab- How a party sencei the person or persons, against whom such judgment hath ^'^f^^ proceed 1 • ^ 1 • 1 • 1 • 1 r 1 •' !■■ c • 1 who was un- been given, on making oath within ten days oi the rendition oi said able to attend judgment, before any justice of the county where such judgment gj j^'^"'^^ ^^^"^ may be entered, that he, she or they was or were prevented from other sufficient attending on the day of trial by bodily infirmity, mistaking the day ' of trial, or other sufficient cause, and that he, she or they are likely to be injured by such judgment, then and in that case it shall and may be lawful for such justice to grant an appeal to the next county court, or stay of execution, on such person or persons en- tering into bond with sufficient security, as in other cases of grant- ing appeals or staying of execution from the judgment of the jus- tice ; and it shall also be the duty of such justice to give to the Duty of the party, craving such appeal, a written order to the constable oi' consTabk 'u other person, having such judgment in his or their hands, com- such appeal manding him to return such judgment together with such other oi"siay^uUowed 23. 1794, c. 414, s. 17. 24. 1794, C. 414, S. IS. 23. 1312, c. 832, s. 1.— 1303. c. 027, s. 5. cause. upon 360 JUSTICES OF THE PEACE. [ChAP. LXIL papers and documents, as may be in their hands relative to such judgment, to him the said justice before the next county court, and also commanding said officer to give notice to the party, in whose favor such judgment hath been given, of an appeal having been granted thereon ; and it shall be the duty of the justice, on receiving such judgment and other papers, to make return thereof, together with the appeal bond and affidavit of the party craving such appeal, to the next ensuing court of his county, to be tried as other appeals from justices' judgments. ^surbefore^he ^^' Nothing in the preceding section contained shall prevent stay or appeal the party, entitled to the same, from taking out execution, at any IS granted. j.jj^g before the same is stayed or an appeal granted. Upon security 27. If any execution shall issue upon any judgment, where the stay'or'apped, defendant prayed an appeal or stay of execution, before the ten the officer must (Jays be expired, upon security being given as by this act directed, ecu^tion to the such execution shall be returned to the justice of the peace who justice. issued it and shall not be acted on by any officer ; and the officer, or other person who has any such execution, shall, due notice be- ing given him in writing from the justice who granted the execu- tion, deliver up the same or be liable to the action of the party grieved. Justices may 28. Every justice of the peace, within the county for which he ^^^i'"j-'\"?^^'"^ shall be appointed, shall have power to restrain evil doers, rioters of the peace, and disturbers of the public peace, and to take them and cause them to be imprisoned and punished, and take of them, that be not of good fame, security for their good behavior. Duty of two 29. If any riot, assembly or rout of people against law be made, justices, with g ^^Q iustices of the peace and the sheriff shall come with the theshenfl,m J J /-r i i \ i i j i suppressing un- power oi the county (ii need be) and arrest them, and the same bir^'es riotr' justices and sheriff shall have power to record that which they find &LC? ' ' done in their presence against law, and if such offenders be de- parted before the coming of the justices and sheriff, then the same justices and sheriff shall dihgently inquire, within a month after, of such riot, rout or unlawful assembly, and shall record the same, and the record, so made by them in either case, said justices shall return to the next succeeding term of the court of pleas and quar- ter sessions or of the superior court to be held for their county. The justices 30. It shall be the duty of the justices of the peace, dwelling est^\^o"pe^forin '^'o'^^st' when such riot, rout or unlawful assembly shall be made, this duty. to execute the provisions of the preceding section. All magistrates 31. It shall be the duty of all magistrates to suppress all such to act in sup- ^iots, routs and unlawful assemblies : and they may, when neces- prcssini? riots j ti * &,c. ' sary, use the power of the county for that purpose, and shall take such offenders and put them in prison, to be dealt with according to law. Constables to 32. It shall be the duty of all constables, in each and every serve notices. 26. 1812, c. 832, s. 1. 27. 1812, c. 832, s 2. 23. 31 Edw. 3, c. 1. 29. 13 Hen. 4, c. 7, s. 1. 30. 13 Hen. 4, c. 7, s. 4- 31. 17 Rich. 2. 32. 1837, c. 20, s. 2. Chap. LXIL] justices of the peace. 361 county within their respective counties, or upon any bay, river or creek adjoining their counties, to serve all notices, that shall be to them tendered or delivered, which are or may be required by law to be given, for commencing or prosecuting any cause before any justice of the peace out of court. 33. The constable shall serve the same, by delivering a true How the copy thereof to the person to whom the same should be delivered, "erved and^re- if to be found in his county, or by leaving a copy thereof at the turned, usual place of abode of such person, if in his county ; and shall certify on the notice, the time when such notice was served, or copy left at the place of abode ; and such return shall be evidence of the service of the said notice as may be therein stated ; and the said constable shall deliver the said notice, with the return thereon, to the party, his attorney or agent, at whose instance such notice issued, upon demand of the same. 34. Any constable, neglecting or refusing to execute and re- Penalty on con- turn such notice, or making a false return thereon, shall be sub- ?tables for fail- , ' . II- c r • 1 • ing to serve no- ject to the same action and penalties as lor relusing or neglecting tices. to serve,, or falsely returning process or precepts, directed to him from a justice of the peace out of court, to be prosecuted, recovered and applied, as actions and penalties are directed to be prosecuted, recovered and applied, for refusing or neglecting to serve, or falsely returning process or precepts issued from a justice of the peace out of court. 35. Nothing contained in the three preceding sections, shall pre- Notice may be vent any person from giving notice, and proving the same as here- proved^as here- tofore, ^ofore. 33. 1827, C.20, s. 3. 34. 1S27, c. 20, s. 4. 35. 1827, c. 20, s. 5. Note. — References TO Adjudged Cases. Sect. 6. Kiddie vs. Moore, 2 Murph. 41. Hamilton vs. Parish, 4 Hawks, 283. O'Dwyerris. Cutler, 1 Dev. 312. Tyer »s. Harper, ib. 387. Bell tjs. Ballew, ib. 391. Perrel »s. Underwood, 2 Dev. HI. Fentress vs. Worth, ib. 229. Griffin vs. Ing, 3 Dev. 358. Wilson vs. Jennings, 4 Dev. 90. Bryan vs. Washington, ib. 479. Sect. 7. Anon- 1 Hay. 398. Sect. U. Forsythe vs. Sikes, 2 Hawks, 54. Weaver vs. Parish, 1 Hawks, 319. Governor vs. Bailey, 3 Hawks, 463. Humphries vs. Buie, 1 Dev. 378. Hamilton vs. Parish, ib. 415. Sect. 13. Shipman vs. Maers, 4 Dev. 484. Sect. 16. Lash w. Gibson, 1 Murph. 266. Ellar »s. Ray, 2 Hawks, 568. Nesbitt vs. Ballew, 3 Hawks, 57. — Lanier vs. Stone, 1 Hawks, 329. Sect. 22. Dolby vs. Jones, 2 Dev. 109. Sect. 23. Picot vs. Hardison, 2 Hawks, 532. Sect. 25. Lamon vs. Gilchrist, 1 Dev. 176. VOL. I. 46 362 LANDS OF DECEASED DEBTORS. [ChAP. LXIII. CHAPTER 63. LiANDS OF DECEASED DEBTORS, AN ACT PRESCRIBING THE MODE OF SUBJECTING THE LANDS OF DECEASED DEBTORS FOR THE PAYMENT OF THEIR DEBTS. 2, Section 1. In suits against an executor or ad- ministrator, upon the plea of fully administered being verified, how the plaintiffshall proceed to subject the real estate in the hands of the heirs or devisees. Heirs and devisees may contest the finding of fully administered, in a collateral issue with the executor or administrator. Such collateral issue to be tried at or before the second term. When an executor or administrator fails to plead fullj' administered, &c. or the plea is found against him and he becomes insolvent, how the plaintiflf shall proceed — Proviso, in cases of collusion. Heirs or devisees may show that the executor or admiaistrator has assets or is not insolvent. Creditor's title to relief in equity not affected. The creditor, on the trial of the scire facias against the heirs, &c. shall recover the costs of the origi- nal suit. Where an estate is indebted to the executor or administrator, how he shall proceed to subject the real estate when there is no personal estate. The scire facias, &c., how to be served when the heir or devisee is a minor. 7. 8. Section 10. When the heirs or devisees or any of them live out of the State, and have no guardian here, what proceedings shall be had. 11. How a guardian shall proceed when he has notice of a debt or de- mand against his ward — Execution against the estate of ajuinor, when and how to issue. 12. What proceedings shall be had to subject the real estate of a deceased debtor in the hands of the univer- sity. 13. The president, &c. of the university liable in like manner as heirs and devisees. 14. Lands held for the life of another and coming to the heirs by special occupancy, liable for the debts of the tenant for life. 15. Lands of deceased debtors how long liable for the payment of his debts, and within what time a conveyance by the heir or devisees shall be void, as against the creditors — Pro- visos. 16. Heirs or devisees selling after two years, to be answerable to the amount of the land descended or devised. 17. Devises of real estate void as to creditors — Creditors may have joint or several actions against the heirs and devisees. 1. B^ it enacted hy the GeneralJlssemhly of the State oj J\orth Carolina, and it is hereby enacted by the authority of the same, In suits agamst That in all suits at law, where the executor or administrator of any admfnTstrator' deceased person shall plead fully administered, no assets, or not upon the plea sufficient assets to satisfy the plaintiff's demand, and such plea of fully ad- nui/- i.,. .., . ^. . _ r ministered shall be found in favor of the defendant, the plaintiff may proceed 1. 1754, c. 226, s. 2. Chap. LXIIl.] lands of deceased debtors. 363 to ascertain his demand and to sign judgment ; but before taking be^n^^j^enfied, out execution against the real estate of the deceased debtor, a writ tig- ^haii pro- or writs of scire facias shall issue, summoning the respective heirs ^^^f^J° ^^^[-^ff and devisees of such deceased debtor to shew cause, why execu- i^ ^he hands of tion should not issue against the real estate for the amount of such Ae^hdrs or de- judgment, or so much thereof as there may not be found personal assets sufficient to discharge ; and if judgment shall pass against the heirs or devisees, or any of them, execution shall and may issue against the real estate of the deceased debtor in the hands of such heirs or devisees, against whom judgment shall be given as afore- said. 2. Upon the return of such scire facias, the heirs and devisees g^'F^^^f shall be at liberty to contest the truth of the finding of the issue m p^^test the favor of the executors or administrators, and uppn the plea of such fi^^JJS^°f^[f y heirs or devisees, that the executors or administrators have suffi- j^ ^ collateral cient assets, or have wasted or concealed the same, the court iWwiA the shall order the trial of a collateral issue between the executors or ministrator. administrators and such heirs or devisees, which if found against the exectors or administrators, the original plaintiff shall have ex- ecution, not only against the goods and chattels of the deceased debtor, but against the proper goods, chattels, lands and tenements of such executors or administrators. 3. When any collateral issue shall be ordered to be made "P, |^^J^ t-o^^.^J^^] between the executors or administrators, and the heirs or devisees, at^'or before the in pursuance of the preceding section of this act, the same shall be second term. tried at or before the second term thereafter, of the court where the said issue shall be ordered, and in default thereof, judgment shall be rendered against the lands of said deceased debtor, in fa- vor of the original plaintiff, agreeably to the scire facias^ unless on sufficient cause shown to the court, further time shall be given for the trial of said issue. 4. Where the executors or administrators of any deceased person When an ex- shall omit to plead fully administered, no assets, or not sufficient milii's'trTtor ' assets to satisfy the plaintiff's demand, or where they shall plead fails to^plead the said pleas or any of them, and the same shall be found against 1,^^,^^, &c. or such executors or administrators, and they shall be, or afterwards Ae^pka^i^s^^^ become insolvent, so that the creditor cannot procure satisfaction i^;,^ ^nd he be- for his demand, such creditor shall and may have the same reniedy ~^^;';^°5;^ against the real estate of such deceased debtor in the hands of the plaintiff shall heirs or devisees, and the same process, as is provided by the first proceed, section of this act, and if judgment be rendered against the heirs or devisees, or any of them, execution shall and may issue against the real estate of the deceased debtor, in the hands of such heirs or devisees : Provided, that no creditor shall be entitled to the reme- j;^";^^'"^ 'J^jl^. dy aforesaid against the heir or devisee, who shall be guilty of any sion. negligence or collusion in prosecuting his suit, whereby the exe- cutor or administrator shall become insolvent to the detriment of the heir or devisee, which negligence or collusion such heir or de- 2. 1784, c. 226, s. 5. 3. 1510, c. 792. 4. 1807, C. 716, 8. 1. 364 LANDS OF DECEASED DEBTORS. [ChAP. LXIII. visee may shew, on an issue joined under the direction of the said court, before whom the trial shall be had. Heirs or de- 5. When any creditor of any deceased person, claims to have visees may judgment against the real estate of such debtor, in the hands of the executor or ad- heirs or devisees, by reason of the executors' or administrators' miiiistrator has failing to plead the pleas aforesaid, or on account of the insolvency insolvent. ^ of the executors or administrators as herein before mentioned, the heirs or devisees of such deceased debtor shall and may be per- mitted to shew that the executors or administrators have assets, and, on an issue between them and the creditor, that the executors or administrators are not insolvent, but have property to pay part or the whole of the debt demanded and costs ; if both the said is- sues shall be found in whole or in part for the heirs or devisees, judgment shall be rendered accordingly, otherwise for the creditor, to'^reiief'in^'^^^ ^' ■'Nothing in the foregoing provisions of this act contained, equity not af- shall affect the remedy, which any creditor has or may have in fected. equity, against the real estate of any deceased debtor, or in any manner change the rule of decision in equity in any such case. The creditor, on 7. In all cases, where the plea of fully administered is found in let /o* against f^^or of an executor or administrator, and the plaintiff in the orig- ihe heirs, &c. inal action resorts to a scire facias to render the real estate of the the costs'of the deceased debtor liable to the satisfaction of his debt, he shall be orighial suit, entitled to recover all the costs expended in his former suit, and the same shall be assessed by the jury, and judgment rendered there- for, in like manner as for his debt. Where an es- 8. Whenever the estate of a deceased person shall be indebted to the executor to the executor or administrator, and there shall not be personal or administra- assets Sufficient to satisfy the debts or demands of such executor shall proceed OT administrator, it shall and may be lawful for such executor or to subject the administrator thereof, to prefer a petition against the heir or when there is heirs and devisee or devisees of such testator or intestate, for the no personal es- recovery of such debt or demand, to the court of the county wherein such administration or letters testamentary were granted, or to the court of equity of such county, in the manner and under the regulations prescribed by law for the recovery of legacies, filial portions and distributive shares, therein specially setting forth the nature of said debt or demand and the amount thereof, and praying that the heir or heirs of such deceased person may be made defendant or defendants thereto ; and such petition being filed in the clerk's office, the same proceedings shall be had thereon, and the defendant or defendants shall be bound and subject to the same rules, as in cases of petition to recover legacies, filial portions and distributive shares, and if a decree shall be made against such heir or heirs and devisee or devisees, or any of them, execution shall and may issue against the real estate of the deceased debtor, in the possession of such heir or heirs and devisee or de- visees, against whom a decree shall be given as aforesaid. 'Thesci. fa. Sac. g^ When any heir or devisee, against whom a scire facias shall served when 5. 1S07, c. 716, s. 3. the heir or 6. 1807, c. 716, s. 4. devisee is a 7. i832, c. 19. minor. s. 1789, c. 311, s. 1 and 2.— 1806, c. 704. 9. 1784, c. 226, s. 3.— 1?89, c. 311,s. 4. Chap. LXIIL] lands of deceased debtors. 365 issue or petition be filed, shall be a minor and have a guardian, the scire facias, or the copy of the petition and subpoena, shall be served on such guardian ; but when the minor has no guardian, then and in that case the court shall appoint a guardian to defend the suit for such minor. 10. When the heirs and devisees of any deceased debtor, or when the heirs any of them, shall reside out of the State, so that writs of scire °'^ devisees or r • ■ ■ 1 , 1 1 1 11 1 any of them jacias or petition cannot be served on them, and shall have no live out of the guardian, on which the same can be executed, then and in that ^^^^•^' ^"^ '^'^^^ case the sheriff shall return the fact to be so, and another scire here, what pro- JaciaSj or a copy of the petition and subpoena shall issue, on which |^^^{Ji"S^ ^^^^^ the same return shall be made, if the parties still continue to reside without the limits of this State, on which second return, and like- wise on every second return, that the party or parties have been summoned, and no appearance shall be made upon such summons, judgment shall be given against the real estate in the hands of such heirs or devisees. 1 1 . When any guardian shall have notice of any debt or demand H"w a ^ar- against the estate of his or her ward, he or she may apply to the ceed when^T county court, wherein such guardianship was granted, for an order ^^^ notice of a to sell so much of the personal or real estate of such ward as may again*st his^^" be sufficient to discharge such debt or demand, and such order of '^^''d- the court shall particularly specify what property may be sold ; and such property shall be sold, on the same credit, and under the same regulations, as property sold by executors or administrators is or may be by law, and the proceeds of such sales shall be considered as assets in the hands of the guardian, for the benefit of the credi- tors, in like manner as assets in the hands of an administrator or executor, after a scire facias as by law directed ; and the same proceedings may be had against such guardian with respect to the ■ assets aforesaid, as might be had or taken against an executor or administrator in similar cases : Provided nevertheless, that no exe- Execution cution shall be levied on the goods or chattels, lands or tenements Tfte^ofVininor of any minor, in the hands of his guardian, until twelve months ^^i?" and how after judgment obtained on the scire facias aforesaid, nor shall exe- ^^'^^^'^" cution issue as aforesaid at any time but on motion in open court. 12. In all suits at law, where the executors or administrators of }^J^^t proceed- any deceased person shall plead fully administered, no assets, or had to subject not sufficient assets to satisfy the plaintiff''s demand, and such plea *'!*' '"•^.'^^ estate shall be found in favor of the defendant, the plaintiff may proceed debtor in the to ascertain his demand and to sign judgment ; but before taking out ^^^P^^* °/ ^^^ execution against the real estate of such deceased debtor, if there be no heirs or devisees of the estate, upon affidavit made by the plaintiff, that to the best of his knowledge the person deceased died seized of, or entitled to, certain real estate therein to be described, which real estate has since come to the possession of the president and trustees of the university of North Carolina, a writ or writs of scire facias shall and may issue against the president and trustees 10. 1784, c. 226, s. 4. 11. US9, c. 311, s. 5. , 12. 1791, c. 352, s. 1. 366 LANDS OF DECEASED DEBTORS. [ChAP. LXIII. aforesaid, to be served on their attorneys or agents, or either of them, summoning them to shew cause why execution should not issue against the real estate, for the amount of such judgment, or so much as there may not be personal assets to satisfy : Provided al- ways, that the said president and trustees shall, upon such scire facias, be let in to contest the merits of the original action, and if judgment shall pass against the said president and trustees, execu- tion shall and may issue against the real estate of the deceased debtor for the amount of such judgment. The president, 13. The president and trustees of the university of North Car- fee, of the olina shall be subject generally to the same process, judgment and liabi^in like execution, for the whole amount of real estate of any debtor de- manner as heirs ceased that may come to their hands, that the heirs of such debtor, had he or she left heirs, would have been subject unto, and shall be answerable to creditors out of the funds of the university, for the value of such lands as are by them sold, aliened or made over for the use thereof. the"lifeolF ""^ 14. When any person shall die intestate, seized of any estate in another and lands, tenements and hereditaments for the life of another person, heirs"by "spe-*^ ^"^^ such estate shall come to the heir or heirs of the tenant for life cial occupancy, by special occupancy, the same shall be chargeable in the hands of liable for the "^ u u ■ i, • . u j . debts of tenant sucn heir or heirs as assets by descent. for life. 15. When any person shall die seized of any lands, and shall be Lands of de- indebted at the time of his or her death, all the lands of which he how long liable or she died seized, shall be liable to the payment of his or her for the payment debts, for the term of two years after the probate of his or her last and within ' will and testament, or, in case he or she shall die intestate, for two what time a years after administration granted on his or her estate ; and all sales, the heirs or de- Conveyances or alienations of any lands of a deceased debtor, made visees shall be jjy gj^y devisee or devisees or heir or heirs at law of such deceased the creditors, debtor, before the expiration of two years from the probate of the last will and testament of such deceased debtor, or before the ex- piration of two years after granting letters of administration on the estate of such deceased debtor, shall be utterly null and void, as to the creditors of such deceased debtor ; and the creditor or credi- tors of the deceased debtor may proceed against his or her real estate, in the same manner as if such conveyance never had been made by the devisee or heir at law of such deceased debtor : Pro- Provisos, vided, that nothing herein contained shall impair, or in any way affect the right of a widow to dower, in the lands of her deceased husband : Jind provided also, that this act shall not impair, or in any way affect the right of any person or persons, to whom any land shall be devised in trust or otherwise, or to whom power to sell land shall be given by any last will and testament, for the pur- pose of paying the debts of the devisor or testator, to sell or dis- pose of the same in order to carry into effect the intention of such devisor or testator, but every such person shall have the same power over such land as he or she now has, any thing herein con- tained to the contrary notwithstanding. 13. 1791, c. 352, s. 2. 14. ISIS, c. 9S3, s. 1. 15. 1830, c. 36. Chap. LXIIL] lands of deceased debtors. 367 16. In all cases where any heir at law shall be hable to pay the Heirs or de- debts of his or her ancestor, in regard of any lands, tenements or ^Yg^^j^Q^yg|j.g hereditaments descending to him or her, or where any devisee shall to be answer- be liable to pay the debt of a testator, in regard to any lands de- ^^Q^°/Q']®jj,g vised to him or her, and shall, after the expiration of two years land descended from the' probate of the last will and testament or the granting of ""^ ®^^^^ " letters of administration, as set forth in the preceding section, sell, alien or make over the same, such heir at law or devisees shall be answerable for such debt or debts to the value of said land, so by him or them sold, aliened or made over ; which value shall be ascertained by the jury empanelled to try the issue joined on the proceedings between the said parties ; in which case all creditors shall be preferred, as in actions against executors or administrators, and execution shall be taken out upon any judgment or decree ob- tained against such heir or devisee, to the value of the said lands, as if the same were his or her own proper debt, saving that the lands, tenements and hereditaments bona fide aliened after two years, as herein provided, shall not be liable to such execution. 17. All devises of lands, tenements and hereditaments, or of rearesme void any rent, profit, term or charge out of the same, made by a debtor, as to creditors, shall be deemed and taken, only as against the creditor or creditors. Creditors may his, her or their heirs, successors, executors, administrators and as- several actions signs, and every of them of such debtor, as null and void ; and every against the such creditor shall and may have and maintain his, her or their ac- vkees*!" tion or actions against such devisee or devisees, in all cases and in like manner as such action or actions might or could be brought or maintained against the heir or heirs at law of such deceased debtor, jointly with the heir or heirs at law, or severally. 16. 1789, 0. 311, s. 3.— 1807, c. 716, s. 2. 17. 1789, c. 311, s. 2. Note. — References to Adjudged Cases. Sect. 1. Gardner I's. Ellis, Tayl. 106. Alston vs. Sumner, 2 Hay. 404. Cardwell vs. Brodie, 1 Murph. 97. Trimble vs. Jones, 3 Murph. 579. Bonner vs. Tier, 3 Dev. 533. Jeffreys vs. Yarbrough, 1 Dev. Eq. 506. Ricks vs. Blount, 4 Dev 128. Sect. U. Bank of Newbern 15S. Stanly, 2 Dev. 477. Sect. 16. Spaight vs. Wade, 2 Murph. 295. Sect. 17. Dunnrs. Keeling, 2. Dev. 284- 368 LEGACIES, ETC. [ChAP. LXIV. CHAPTER 64. L.EG ACIES, FILIAL. PORTIONS AND DISTRIBUTIVE SHARES. AN ACT CONCERNING FILIAL PORTIONS, LEGACIES AND DISTRIBU- TIVE SHARES OP INTESTATES' ESTATES. Section 1 . Intestates' estates, how to be distri- buted—Children advanced, but not to full amount, to have their shares made equal. 2. Children advanced, to account for the same. 3. Child refusing to account, not enti- tled. children entitled to a 4. Illegitimate Section share of their mother's personal property — When illegitimate child dies without issue, how his personal property to be distributed. 5. Legacies, &c. recoverable by petition to the superior or county court — • Rules and method to be observed . 6. Power of the court of equity not to be affected. 1. Bi: it enacted by the General Assembly of the State of JYorth Carolina, and it is hereby enacted by the authority of the same, Intestates' es- That every administrator shall distribute the surplus of the estate dlstnbuted." ^ o^ ^is intestate, in the manner following, to wit : If there are not more than two children, one third part to the wife of the intestate, and all the rest, by equal portions, to and amongst the children of such intestate, and such persons as legally represent such children, in case any of the said children be then dead, other than such child or children, who shall have any estate by the settlement of the intestate, or shall be advanced by the intestate in his life time, by portion or portions equal to the share which shall, by such dis- tribution, be allotted to the other children, to whom such distribu- tion is to be made ; and in case any child, who shall have any Children ad- estate by settlement from the intestate, or shall be advanced by the to full amount, intestate in his life time, by portion or portions not equal to the to have their share, which shall be due to the other children by such distribution equal. as aforesaid, then so much of the surplus of the estate of such in- testate, to be distributed to such child or children as shall have any estate from the intestate, or were advanced in the hfe time of the intestate, as shall make the estate of all the said children to be equal, as nearly as can be estimated. And in case there should be no children, nor any legal representatives of them, then one third of the said estate to be allotted to the wife of the intestate, and the residue of the said estate to be distributed equally to every of the next of kin of the intestate, who are in equal degree, and to those who legally represent them : Provided, that there be no representatives admitted amongst collaterals after brothers' and sis- ters' children. If there are more than two children, then such 1. 1776, c. 79.— 1784, c. 204, s. 8. Chap. LXIV.] legacies, etc. ' 369 widow shall share equally with all the children, she being entitled to a child's part ; and in case there be no wife, then all the said es- tate to be distributed equally to and amongst the children ; and in case there be no child, then to the next of kindred in equal de- gree of or unto the intestate, and their legal representatives as aforesaid, and in no other manner whatsoever. And if, after the death of the father, any of his children shall die intestate, without wife or children, in the life of the mother, every brother and sis- ter, and the representatives of them, shall have an equal share with the mother, of the estate of the child or children so dying in- testate. 2. Where any person shall die intestate, who had in his or her Children ad- life time given to, or put into the actual possession of, any of his or count for^the" her children, any personal property of what nature or kind soever, same, such child or children, possessed as aforesaid, shall cause to be given to the administrator or manager of such estate, an inventory, on oath, setting forth therein the particulars by him or her receiv- ed of the intestate in his or her life time. 3. In case any child or children, who had in the Hfe time of the Child refusing intestate, received a part of said estate, shall refuse to give an in- entitled!" ' "° ventory as aforesaid, such child or children shall be considered to have had and received his or her full share of the deceased's es- tate, and shall not be entitled to receive any further part or share thereof. 4. Where any woman shall die intestate, leaving children com- illegitimate monly called illegitimate or natural, born out of wedlock, and no titied'^to a"' children born in lawful wedlock, all such personal estate, whereof share of their she shall die possessed, shall be equally divided among such ille- sonai property, gitimate or natural born children and their repres.entatives, in the When same manner as if they had been born in wedlock ; and if any such chifd d^s with- illegitimate or natural born child shall die intestate, without leaving out issue, how any child or children, his or her personal estate shall be equally prope"ty°'to be divided among his or her brothers and sisters, born of the body of L / 6 CHAPTER 67. AN ACT TO DRAIN THE SWAMP LANDS OF THIS STATE AND TO CREATE A FUND FOR COMMON SCHOOLS. Section 1 . Board of literature to be established — Its style. 2. Governor to be president of the board and to appoint the members. 3. Swamp lands vested in said board. 4. Other property and funds vested in said corporation. 5. Duty of the board in having the Section swamp lands surveyed, drained, &c. 6. Written consent of individuals to be sufficient to vest titles in said cor- poration. 7. When owners of land refuse their consent, what may be done by said corporation. 380 LITERARY FUND. [ChAP. LXVII. Section 8. Lands of individuals, improved by ca- nals, &c. to pay a proportion of the costs. 9. Board to appoint an engineer and surveyor, and may adopt rules for surveying, assessing, &c. 10. Said corporation may enter upon any lands for the purpose of surveying. Section 11. Said corporation may sell reclaimed lands. 12. What money, &c. said corporation shall not expend. 13. Tv(ro hundred thousand dollars ap- propriated to their use. 14. What other rights and powers said corporation shall have. 1. Be it enacted by the General Assembly of the State of JVorth Carolina^ and it is hereby enacted by the authority of the same, That there shall be a board of literature in this State, to be de- nominated and called by the name of " The President and Direc- tors of the Literary Fund of North Carolina ;" and by that name they are incorporated into a body politic and corporate, and shall be capable of suing in any court of record in this State. 2. The governor of this State, by virtue of his office, shall be the president of the said board ; and there shall be three other members of the said board, biennially nominated and appointed as such by the governor of this State, under and with the advice of his council ; but in case a vacancy occurs, the same shall be filled by the other members of the board. 3. All the swamp lands of this State, not heretofore duly en- tered and granted to individuals, shall be vested in the said cor- poration and successors, in trust as a public fund for education and the establishment of common schools. Other property 4. In addition to the said lands, the edln'said 1©^ ^^^^^^ ^^'^^^^ ^^ vcsted in said corporation, and their Board of lit- erature to be established — Its style. Swamp lands vested in said board. following property and successors po ration. in trust as aforesaid, to wit : all the shares of stock owned by the State, in the bank of the State of North Carolina, excepting one thousand shares, together with all the shares of stock now held in said bank, in the name of the president and directors of the lite- rary fund, making in all five thousand shares ; and also five thou- sand shares of stock in the capital of the bank of Cape Fear, and the profits and dividends arising from said stock ; which profits shall be reinvested by the said president and directors, from time to time as they accrue, for the use of said fund, as they may judge best ; subject, however, at all times to the direction and control of the General Assembly. Duty of the 5. The said president and directors of the literary fund shall be thrswamp^^"^ and they are hereby invested with full power and authority to lands surveyed, adopt all neccssary ways and means, for causing so much of the swamp lands aforesaid to be surveyed, as they may think capable of being reclaimed ; and after the said lands or any part of them shall be surveyed, to contract with one or more persons to con- struct canals, ditches and other works, necessary for the purpose of reclaiming the said lands, upon such terms and conditions as may be prescribed by the said corporation ; the contractor or con- tractors in each case giving bond and security for the faithful per- formance of the agreement. drained, &c. 1. 1836, c. 23. Chap. LXVII.] literary fund. 381 6. Whenever it shall be necessary to construct any of the ^^o^t^ Jnfof'indi'vid of said corporation on the lands of any individual proprietor, the writ- [^^^^ °^ ^" ^'^j-. ' ten consent of such proprietor, without any formal deed of con- ficienuo^vest veyance, for the lands necessary to the work and its future unre- corporation, stricted enjoyment, shall vest the title thereof in the said corpora- tion forever ; and when any infant, or person non compos mentis, or feme covert shall be owner thereof, the guardian of such infant or person non compos mentis shall be and he is hereby authorized to give such consent ; and the feme covert with her husband may do so, without any separate examination ; and the consent so given shall in either case be good and valid to all intents and purposes. 7. Whenever the consent of the proprietor aforesaid shall be When^o™^ withheld or refused, it shall be lawful for the said corporation or their consent, their agents to enter on the said lands, and lay off so much of the ^Jf^'bTslid same as may be necessary to be used in said work, the value ot corporation, which shall be assessed to the proprietor according to the law of the land ; and upon the payment thereof, the title of said land shall be vested in the said corporation forever : Provided, that in the assessment of said valuation, the benefit that will accrue to the proprietor, by reason of said improvement, may be likewise reck- oned and set off against the said damages. 8. When there are lands owned by individuals, which can be Jands^f in^ reclaimed by reason of the canals, ditches, or other works of the p^^^J'J^by "''" said corporation, the said lands owned by individuals, shall be as- canak, &c.jo sessed to contribute an equitable proportion of the costs of said ^^^^^ ^[^6°''" works ; which assessment shall be made by the said president and costs. directors, or by a board of commissioners appointed by them ; and the assessment so made shall be charged on said lands : Provided however, that the said corporation may, by contract with individual proprietors agree upon the said assessment, and accept payment thereof in labor or money. 9. The said president and directors shall have power and author- Board to ap- ity to appoint an engineer, and surveyor and other servants under P°^"/^^^yj^/;- them to plan the works herein contemplated, upon the most rea- veyor, and may sonable terras on which they can be procured, and they may enact adop^tmks^^^^^ all necessary rules and regulations for surveying and reclaiming the sessing, &c. swamp lands of this State, or any of them ; for assessing the lands of individuals which may be improved by the works, and for col- lecting said assessments ; and the assessments so made shall be published weekly for five weeks in one of the newspapers publish- ed in Raleigh, and also filed in the office of the clerk of the supe- rior court, where the lands assessed are situate ; and if no objec- tions are filed at the court next after such advertisement, the said assessments shall be confirmed by the court, and the lands ad- judged liable for the amount, and execution may be issued for the sale of said lands to satisfy the same, on motion to the court for that purpose ; and if any reasons be shewn against the said assess- ments, they shall be heard and determined by the said court, and the said assessments shall be increased or diminished as the court shall adjudge is right. 10. The said corporation, and their officers or agents, shall Said^or^pora-^ 382 LITERARY FUND. [ChaP. LXVIII. upon any lands for the purpose of surveying, &c. Said corpora- tion may sell reclaimed lands. What money, &c. said corpo- ration shall not expend. Two hundred thousand dol- lars appro- priated to their use. What other rights and powers said corporation shiill have. have a right to enter upon the lands of all and any persons whom- soever, for the purpose of surveying ; and all the grants and deeds for swamp lands, heretofore made, shall be proved and registered m the county, where such lands are situate, within twelve months ; and every such grant or deed, not being so registered within the time aforesaid, shall be utterly void and of no effect, and the title of the proprietor in said lands, shall revert to the State of North Carohna. 11. The said corporation may sell and convey any. part of the lands, which may be reclaimed, for the best price that can be ob- tained for the same ; and the title of the purchaser or purchasers shall be good and vahd in law and equity. But the corporation shall not sell any canal by them constructed under this act. 12. The corporation aforesaid shall not expend any part of the moneys and stocks, herein before vested in them for the purpose of reclaiming the said lands. 13. Two hundred thousand dollars shall be, and are hereby ap- propriated to the use of said president and directors ; and they have power to expend so much thereof, in reclaiming the swamp lands, as can be beneficially apphed to that object ; and, if the same shall not be immediately required, the said president and di- rectors shall have power to loan the same, on short credit and good security, or to deposit it with a bank or banks, at a reasonable rate of interest, as they may see fit, until it is required for the work herein provided for. 14. Besides the powers herein before given, the said presi- dent and directors are invested with all the rights and powers here- tofore belonging to the president and directors of the literary fund of this State ; and also with all powers and authority necessary and proper for reclaiming the swamp lands of this State, and for obliging the owners of any part of said lands to contribute an equi- table share of the expenses, whenever such^ owners are benefited by the work of the company. CHAPTER 68. AN ACT TO PROVIDE FOR DRAINING THE MATTAMUSKEET LAKE. Section 1 . Governor to appoint three commis- sioners for the purpose of draining Mattamuskeet lake. 2. Commissioners to locate and con- tract for the cutting a canal . 3. Reclaimed land not to be entered. 4. Pay of the commissioners. Section 5. Public treasurer to pay out of the literary fund. 6. Commissioners to contract with indi- vidual proprietors for aid. 7. Commissioners to report, &c. 8. Commissioners to give bond. Chap. LXVIIL] literary fund. 383 1. Be it enacted by the General Assembly of the State of Mrth Carolina, and it is hereby enacted by the authority of the same, Governor to That the governor of this State be, and he is hereby authorized appoint three and empowered to appoint three commissioners, who shall be and^°™™/^ they are hereby constituted a board of commissioners, for the pur- rf draining poses hereafter named. And the governor is hereby authorized Mattamuskeet to supply any vacancy that may occur by death, resignation, remo- val or refusal to act. 2. The said commissioners are hereby authorized to examme Commissiojrs and ascertain the most practicable route for a canal, to lead from contract for the Mattamuskeet lake in Hyde county, to some convenient water cutting a canal, course, which will drain the said lake. When the said board of commissioners shall have ascertained and fixed upon the route of said canal, they are hereby authorized and empowered, on be- half of the State, to contract with one or more persons to cut or open said canal ; the said contract to be made on such terms and conditions, as the said commissioners may think proper, taking bonds with good securities in double the amount of the contract, conditioned for its due and faithful performance. t, ^ ■ a 3. It shall not be lawful for any person to enter lands that are R^^J^™^^ ^^ now vacant, and which may hereafter be reclaimed by the opera- entered. tions of this canal. 4. The said commissioners shall be allowed the sum of three Pay of the ^ -^ „ ^ . commissioners. dollars per diem for every day they may be engaged in pertorraing the duties enjoined by this act. 5. The public treasurer shall be and he is_ hereby authorized Public treas-^^^ and directed to pay, on the warrant of the said commissioners, a of the literary sum not exceeding eight thousand dollars out of any moneys belong- fund. ing to the literary fund. 6. Said commissioners, before locating the canal shall ascertain CommissixDners ■ what assistance in cutting the same, can be procured trom those wlio ^uh individ- may receive benefit therefrom ; and in the location of the said ualim,prietors canal, the commissioners shall have reference to such assistance, and are hereby authorized to make with said individuals such con- tract in behalf of the State, for the purpose aforesaid, as they may deem necessary. 7. The said commissioners shall report to the next General As- Commissioners sembly. This act is to be in force from and after its passage. ^o report, &c. 8. The said commissioners shall give bond for the faithful per- Commissioners formance of their duties, which bond shall be taken by the gover- to give bond. nor, payable to the State of North Carolina. 384 LITERARY FUND. [Chap. LXIX. CHAPTER 69. AN ACT TO REPEAL SO MUCH OF THE ACT, PASSED DURING THE PRESENT SESSION, ENTITLED " AN ACT TO ESTABLISH A FUND FOR INTERNAL IMPROVEMENT, AND TO CREATE A BOARD FOR THE MANAGEMENT THEREOF," AS IS INCONSISTENT WITH AN ACT PASSED AT THE SAME SESSION, ENTITLED "AN ACT TO AID THE INTERNAL IMPROVEMENT OF THIS STATE;" AND ALSO TO REPEAL SO MUCH OF THE ACT PASSED DURING THE PRESENT SESSION, ENTITLED "AN ACT TO CREATE A FUND FOR THE ES- TABLISHMENT OF COMMON SCHOOLS," AS IS INCONSISTENT WITH ANOTHER ACT, PASSED DURING THE SAME SESSION, ENTITLED " AN ACT TO DRAIN THE SWAMP LANDS OF THIS STATE AND TO CREATE A FUND FOR COMMON SCHOOLS." Section 1 . Certain parts of the revised acts re- lating to internal improvements and literary fund repealed. 2. Compensation of the members of the literary fund board. Section 3. Board to lend out the moneys, &c. if the Cape Fear bank fails to accept amended charter. 4. When this act to be in force. / r^ t: C-L ;i^6. 1. Be it enacted by the General Assembly of the State of J^orth Carolina^ and it is hereby enacted by the authority of the same, Certain parts That SO much of the act passed during the present session, enti- of the revised tied " An act to estabhsh a fund for internal improvement, and to fnternafim^ Create a board for the management thereof," as is inconsistent with provementand an act passcd at the same session, entitled " An act to aid the in- fund^ep^^ded. tcrnal improvement of this State," and also so much of the act passed during this session, entitled " An act to create a fund for the establishment of common schools," as is inconsistent with another act, passed during the same session, entitled " An act to drain the swamp lands of this State, and to create a fund for com- mon schools," be, and the same are hereby repealed. Compensation 2. The persons composing the literary board, created under of the Ht^arT ^'^ ^^'' entitled " An act to drain the swamp lands of this State, and fund board. to create a fund for common schools," shall be entitled to receive the same pay, and under the same regulations, as persons com- posing the board created under an act, entided " An act to aid the internal improvements of this State." Board to lend 3. If the Stockholders in the Cape Fear bank shall fail to accept &^ *T^h°'^*^^^' ^^^ amendment of their charter, which is made by an act of the Cape Fear present General Assembly, so that the funds of the State cannot be bank fails to •j^^.ggjgjj ji^ the stock of said bank as by said act is directed, it charter. shall be the duty of the president and directors of the literary fund to loan out the sum so directed to be invested and added to the literary fund, or otherwise to secure and manage the same, so as to cause said fund to accumulate as rapidly as possible. When this act 4. This act shall be in force from and after its ratification. to be in force. Chap. LXX.] MAD DOGS, 385 CHAPTER TO. MAD DOGS. AN ACT CONCERNING MAD DOGS. Be it enacted by the General Assembly of the State of JVorth i Carolina, and it is hereby enacted by the authority of the same, That whenever the owner of any dog shall know, or have good Penalty and li- reason to believe, that his or her dog, or any dog belonging to his damages for or her slave, or other person in his or her employment, has been ^°' bitteif b^"^ bitten by a mad dog, and shall neglect or refuse immediately to mad dog. (kill the same, he or she, so refusing or neglecting, shall pay the ; sum of fifty dollars, to be recovered for the use of him or her, iwho may sue for the same, in any court having jurisdiction thereof, iwith costs ; he or she, so refusing or neglecting as aforesaid, shall I be further hable to pay all damages which may be sustained by iany person or persons whatsoever, by the bite of any dog belong- iing as aforesaid. ISir, C. 945. CHAPTER 71. MARRIAGE AN ACT CONCERNING MARRIAGE. Section 1, I 2. 6. Ministers of the gospel, and justices of the jjeace, to celebrate the rites of matrimony. Clerks of the county courts to issue licenses to marry, upon taking bond. Who may publish the bans of mat- rimony. Penalty on ministers and justices for celebrating the rites of matrimony contrary to law — Penalty on clerks for issuing licenses contray to law. W^hite persons prohibited from mar- rying Indians or persons of color. Penalty on ministers or justices for VOL. I. 49 / Section marrying a white person to an In- dian or person of color. 7. What disposition to be made of the property of an infant female under fifteen years of age, when she has been married contrary to law. 8. The trustees of such infant female's property to give bond — Court's power over them. How to obtain a license when the parent or guardian of an infant female reside out of the State. Penalty on clerks for issuing licenses contrary to the last section. 9. 10. ^T.'VCS.'.v^frvPnr.v Cau^-^fi^ /^^f. CJ^ ^- A I. 386 MARRIAGE. [ChAP. LXXI. 1. Be it enacted by the General Jlssemhly of the State ofJ^orth Carolina^ and it is hereby enacted by the authority of the same^ Ministers of That all regular ministers of the gospel of every denomination the gospel, and having the cure of souls, and all justices of the peace in this State, peace^ to°cel- ^ ^^^ hereby authorized and empowered to solemnize the rites of ebrate the rites matrimony, according to the rites and ceremonies of their respec- ma rimony. ^j^^ churches, and agreeable to the rules in this act prescribed ; and the said ministers may demand and take for every couple by them married, if by license, the sum of two dollars, and, if by publication, the sum of one dollar to their use. Clerks of the 2. The clerk of each county court is hereby authorized and jp"gg^J^l"/*^ empowered to grant marriage licenses to any person applying for censes to marry, the same, first taking bond in the name of the State of North Car- bond.^^ ^^ ohna, with sufficient security, in the sum of one thousand dollars, with condition that there is no lawful cause to obstruct the marriage for which such license is desired, to be recovered in an action of debt, in any court of record having cognizance thereof, by the party grieved, which bond aforesaid shall be taken, and license granted by the clerk of the county in which the feme resides, which license shall be directed to any authorized minister or justice of the peace. ,. r^h°iv 'h' '^^^' ^' ^^^U minister of the gospel, qualified as in this act before di- of matrimony, rected, or any other person appointed by their respective churches as a reader, is hereby authorized and empowered to publish the bans of matrimony between any two persons requesting the same : Pro- vided, that every publication shall be made three several Sundays in the congregation, immediately after or during divine worship, and shall give a certificate of such publication, when demanded, directed to any authorized minister or justice of the peace, and may demand and take for his service the sum of forty cents and no more : Provided, that the people called quakers, shall retain their former rules and privileges in solemnizing the rites of matrimony in their own church, penalty on 4. If any minister or justice of the peace shall knowingly join ministers and together in matrimony any two persons, in any other way or man- lusticcs tor ccl- ^ . ■^. ,* * ebrating the ner than by this act directed, he shall forfeit and pay, for every rites of mat- g^p]^ ofFence, the sum of one hundred dollars, to be recovered] by rimony con- . „ , / . ^ i i ■ • i ^ n trary to law. action oi debt m any court oi record, havmg cognizance thereoi, one half to the use of him who will sue for the same, and the other half to the use of the county where such forfeiture ariseth, and be also liable to an action for damages to the party grieved. And if Penalty on any clerk shall knowingly grant any marriage license, in any way clerks for is- or manner otherwise than by this act directed, he shall forfeit and contfary^to*^ paj for every such ofFence, the sum of two hundred dollars, to be law. recovered aad applied as above directed, and be also liable to an action fo damages to the party grieved. White persons 5. If any white.man or woman, being free, shall intermarry with * 1. 177S, c. 134, s. 2.— 1741, c. 23. 2. 1778, c. 134, s. 3. 3. 1778, c. 134, s. 4. 4. 1778, c. 134, S. 5. 5. 1741, c. 23, s. 4. I^HAP. LXXL] MARRIAGE. 387 I |in Indian, negro, mustee or mulatto man or woman, or any person from marrying ftf mixed blood to the third generation, bond or free, he shall, by ^^^Zll of udgment of the county court, forfeit and pay the sum of one color. lundred dollars to the use of the county. 6. No minister of the gospel, or justice of the peace within this Penalty on State, shall presume to marry a white man or woman with an mmisters^or ^ indian, negro, mustee or mulatto woman or man, or any person of carrying a mixed blood, as in the preceding section, knowing them to be so, ^^'^j^^^?™ '° opon pain of forfeiting and paying for every such offence, the sum person of color. of one hundred dollars, to be recovered and applied as in the pre- cedm"" section. ' 7. Upon the conviction of any person for marrying an infant What dispo- ifemale under fifteen years of age, without the written consent of ^ade of the Iher father, it shall be the duty of the court, before whom the same propert^^of^an 'is had, to appoint one or more trustees to take charge of the prop- ^nder fifteen erty belonging to the female so married; and the whole .estate,years of a|e,^ both real and personal, vested in the said female, at the time of i^een married ,such marriage, and all the right, title and interest, which she had contrary to at such time to any property, either at law or in equity, shall be I vested in and belong to the trustee or trustees so appointed by the (court, and he, she or they shall have full power and authority to I take all such estate into his, her or their possession, and if neces- sary to sue for and recover the whole or any part of said property, in his, her or their own name, as trustee or trustees aforesaid, and the said trustee or trustees shall hold the said estate and property, so received and recovered, to and for the following use and trust to wit : to the sole and separate use of the said female, during the continuance of the said marriage, free and separate from the con- trol of her husband. And upon the termination of the said mar- riage, if the said female shall be then living, the said trustee or trustees shall convey the said estate to the said female, absolutely and in fee simple ; and if said female shall not be then hving, then the said estate shall be conveyed to such child or children, as she may leave surviving her, share and share ahke ; and in default of such children, then the said estate to be conveyed to such person or persons, as would have been distributees or heirs at law, accord- ing to the nature of the estate, if she had died unmarried ; and the husband, convicted of the offence of marrying an infant female under fifteen years of age contrary to law, shall in no case be per- mitted to have, hold, use or enjoy, sell or dispose of any part of the estate, to which his wife was entitled at the time of such mar- riage ; and all sales, dispositions and releases made by him of such property before such conviction, shall be, and are hereby declared to be null and void, nor shall he, in case of the death of his said wife, be entitled to administration on her estate, nor to any distributive share thereof, nor to any right of courtesy therein. 8. The said trustee or trustees shall give bond, payable to the Tl^^tr^-t^ees^of State of North Carolina, with security, in such a sum as the court male's property to arive bond. 6. 1741, c. 23. s. 5. 7. 1820, c. 1041, s. 3. 8. 1820, c. 1041, s. 4. 1^ 388 MEMBERS OF CONGRESS. [ChAP. LXXII. over them. appointing him, her or them, shall prescribe, for the faithful per- formance of the trusts reposed in them, and for accounting for all the profits of the estate entrusted to them, and shall be allowed such compensation for his, her or their trouble in the management Courtis power of such estate, as the court shall direct ; and the superior courts shall have power at any time, when sufficient cause is shown to them, to remove the said trustee or trustees, and appoint others in their stead, who shall have the same powers and authorities, and be governed by the same rules, as the first appointed trustee or trustees. 9. In all cases when a license is applied for to marry a female, whose parents or guardian reside without the limits of this State, mfant'female" ^^ ^^^^^ ^^ ^^® ^"^^ ^^ ^^® person SO applying, to produce to the reside out of clerk of the county court, or any other person legally authorized to grant license to marry, a certificate in writing from under the hand of the parent or guardian of the said female, as the case may be, stating she has arrived to the full age of fifteen years, and has leave to marry, which certificate shall be filed in the clerk's office, in the county where the license was obtained. ] 0. If any clerk, or any other person legally authorized to issue license to marry, shall give, grant or issue any license, contrary to the true intent and meaning of the ninth section of this act, he shall forfeit and pay the sum of one thousand dollars, to be recov- ered in any court of justice having cognizance of the same. How to obtain a license when the parents or this State. Penalty on clerks lor is- suing licenses contrary to the last section. 9. 1820, c. 1041, s. S. 10. 1S20, c. 1041, S.6. Note. — References to Adjudged Cases. Sect. 4. State vs. Loftin,2 Dev. and Bat. CHAPTER 72. MEMBERS OF CONGRESS. AN ACT CONCERNING THE MODE OF CHOOSING SENATORS AND REPRESENTATIVES IN THE CONGRESS OF THE UNITED STATES. Section 1. Senators in congress, how to be chosen. 2. How to be commissioned. 3. The State divided into districts for choosing representatives in con- Section gress — Each district entitled to one representative. 4. Time and manner of conducting the election. 5. Governor may ' order elections at Chap. LXXIL] members of congress. 389 Section other than the regular time in cer- tain cases. 6. Penalty on persons for voting more than once at an election — Separate elections in counties, how to be conducted. 7. Duty of the returning officer with regard to elections. 8. Returning officers of the different counties of the district, to meet and compare the polls, and to give a Section certificate of election to the suc- cessful candidate — Provision when there is an equal number of votes for two or more candidates. 9. Governor to commission the persons elected representatives. Returning officer's allowance for comparing polls. How and when elections to be held in cases of vacancy. 10. 11. how to be chosen. 1. Be it enacted by the General Assembly of the State of JSTorth Carolina, and it is hereby enacted by the authority of the same, That the legislature of the State shall, whenever a senator or sen- Senators in ators in the congress of the United States is or are to be chosen, ^°'|j^''^p*j^^j at such time during their sessions as they shall appoint, elect, by joint vote of both houses of the General Assembly, the vote being viva voce, such senator or senators as may be necessary, under the inspection of two members from each house ; and it shall be ne- cessary to have a majority of the votes of both houses to elect any person for that purpose. 2. The person or persons, so elected senator or senators, shall ^^°^!" P^ , , . ^.^ ~^, . . . , . . Ill 1 commissioned. obtain a certificate oi his or their election signed by the speakers of the two houses, and shall be commissioned by the governor for the time being, with the great seal of the State annexed to the commission. 3. For the purpose of electing representatives to the congress The State di- of the United States, this State shall be divided into thirteen tlis- [^'J^^ Jl^'J" '^^®' tricts as follows, to wit : The counties of Perquimons, Chowan, choosing rep- Currituck, Camden, Gates, Pasquotank and Hertford shall com- •',^^^';".^J*^^^^® ^" pose one district ; the counties of Northampton, Bertie, Halifax each district and Martin shall compose the second district ; the counties of ^"'^^*'"' ^° ""'^ Beaufort, Hyde, Edgecombe, Pitt, Tyrrel and Washington shall compose the third district ; the counties of Lenoir, Craven, Jones, Carteret, Wayne, Greene and Johnston shall compose the fourth district ; the counties of New Hanover, Brunswick, Ons- low, Duphn, Sampson, Bladen and Columbus shall compose the fifth district ; the counties of Franklin, Granville, Warren and Nash shall compose the sixth district ; the counties of Richmond, Anson, Moore, Cumberland, Robeson and Montgomery shall compose the seventh district ; the counties of Orange, Wake and Person shall compose the eighth district ; the counties of Rock- ingham, Stokes, Guilford and Caswell shall compose the ninth district ; the counties of Randolph, Rowan, Davidson, Davie and Chatham shall compose the tenth district ; the counties of Meck- lenburg, Cabarrus and Lincoln shall compose the eleventh district ; the counties of Buncombe, Rutherford, Haywood, Burke, Macon and Yancey shall compose the twelfth district, and the counties of representative. 1. 1789, c. 293, s. 1. 2. 1789, C. 298, S. 2. 3. 1812, c. 831, s. 1.— 1833, c. 96.— 1836, c. 4. 390 MEMBERS OF CONGRESS. [ChAP. LXXII. Wilkes, Surry, Iredell and Ashe shall compose the thirteenth dis- trict ; each of which districts shall be entitled to elect and send one representative to the congress of the United States. Time and 4^ "phe election shall be held on the same days of the year and in3.nii6r oi con- * * ducting the at the same places, as are now prescribed by law for holding elec- election. tions for the members to represent the several counties in the Gen- eral Assembly of this State, at the usual time of election immedi- ately succeeding the termination of each congress ; all of which elections are to be conducted by the sheriffs, or by other persons legally appointed therefor, in like manner as the elections of the State legislature, except that the inspectors of the election, and clerks of the polls, shall be sworn or affirmed to act with justice and impartiality, which oath may be administered by any justice of the peace, or any other person thereunto authorized, and that each qualified voter shall be admitted to give his suffrage only in the county wherein he resides. Governor may 5^ jf gj^y event shall happen to render the meeting of congress order elections /• i . ^\ ~ i 1 /• 1 at other than necessary, alter the expn-ation 01 any congress, and before the the regular ^jjj^g fixed for the election then next to ensue, a new congress shall time in C6rt3,in. ^ cases. be called, the governor, on receiving information to that effect, is hereby authorized to declare the same by proclamation, and to re- quire the freemen of this State to meet in their respective coun- ties, at the time or times therein to be appointed, and at the places established by law, then and there to give their votes for represen- tatives : which elections, so held in pursuance of the proclamation of the governor, shall be conducted in like manner, and to all in- tents and purposes, shall be as legal and valid, as if the same had been held at the time or times prescribed in the preceding section. Penalty on 6. If any person whatsoever shall vote more than once, in any voUn" more election for a representative in congress for his district, he shall than once at forfeit and pay the sum of one hundred dollars, to be recovered " * before a single justice of the peace, one half to the use of the county in which the offence is committed, and the other half to the Separate elec- yge of the person suing for the same. And in counties, where tiesfhow°to'be separate places of elections have been, or shall be established by conducted. law, the elections herein directed, shall be conducted in the same manner as elections for members of the General Assembly ; each officer presiding at an election making return of the poll, which has been had before him, unto the sheriff or other returning officer of his county, at the court house thereof, on or before the Monday immediately following the election. Duty of the re- 7^ Immediately upon the close of the election in each county, with"regard'^^to where there is but one place of election, the sheriff or other re- elections, turning officer shall, in the presence of the inspectors of the elec- tion, cast up the scrolls and make out two correct statements of the number of suffrages given in his county to each candidate, one of which statements shall be, by the inspectors, filed in the court of pleas and quarter sessions for said county, after the same is duly 4. 1512, c. 831, s 2. 5. 1312, c. 831. s. 3. 6. 1812, c. 831,' s. 4. 7. 1812, c. 831, s. 5. an election. Chap. LXXIL] members of congress. 391 certified by the said returning officer and a majority of the inspec- tors ; and the sheriff or other returning officer, by himself or dep- uty, shall attend with the other, on the day and at the places men- tioned in the next section. And in each county, where separate elec*^ions are holden, the presiding officer at each place of election shah, immediately upon the close of the poll, in the presence of the inspectors, cast up the scrolls and make out two correct state- ments of the number of suffrages given thereat for each candidate, one of which statements shall be, by the inspectors of said poll, filed in the office of the clerk of the court of pleas and quarter sessions of the county, after the same has been duly certified by the said returning officer and a majority of the inspectors, and the other shall be delivered to the sheriff or other returning officer of the county, jis prescribed in the preceding section ; and the sheriff or other returning officer as aforesaid shall publicly, at the court house aforesaid, ascertain by fair addition of the suffrages, the return of the whole number received for each candidate in the county, and thereof shall make two statements under his hand, one of which he shall file in the office of the clerk of the court of pleas and quarter sessions of his county, and with the other by himself ^or deputy shall attend on the day and at the place mentioned in the next section. 8. The sheriffs, or other returning officers, of the counties of Returning of- each district, shall meet, on the Thursday next after each election, different coun- at the court house of the county first mentioned in their respective ties of the dis- districts : Provided alivays, that if any accident shall happen to and compare either of the returning officers, which may prevent any or either of the polls, and them from meeting on the day aforesaid, the returns of each and lificate of elec- every officer shall be received on the day following ; and the sher- tion to the suc- iff or other returning officer, failing to attend at the time and place didate. above mentioned, as required, shall forfeit and pay the sum of one thousand dollars, to be recovered for the use of the State, upon due proof thereof in any court of law within this State, by an action of debt in the name of the treasurer of the State for the time being. And when the sheriffs or other returning officers shall be convened as aforesaid, the poll for the different counties shall, by the said sheriffs or other returning officers, as the case may be, in presence of three justices of the peace, who are to be summoned by the sheriff or other returning officer of the county where they shall meet, for that purpose, be examined and compai'ed, and a certifi- cate under the hands and seals of said returning officers shall be given to the candidate in each district, for whom the greatest num- ber of votes shall have been given in said district. But if two or Provision more candidates shall have an equal number of votes, the said re- where there is turning officers shall determine which of them shall be the repre- ber^'Xvotes^or sentative, and if no decision is by them made, then they shall de- two or more cide the same by drawing, in like manner as the grand jury is drawn *^^" ' ^'^^' for in the superior court. 9. Each and every person, who shall be duly elected a repre- 8. 1831, c. 831, s. 6. 9. 1812, c. 831, s. 7. 892 MILITIA. [Chap. LXXIII. Governor to commission the persons elected rep- resentatives. Returning of- ficer's allow- ance for com- paring polls. How and when elections to be held in cases of vacancy. sentative, shall, upon obtaining a certificate of his election accord- ing to the direction above mentioned, obtain from his excellency the governor a commission, certifying his appointment as a repre- sentative of this State, which commission the governor is hereby empowered and required, on such certificate being produced to him, to issue. 10. Every sheriff or other returning officer, holding elections in pursuance of the above provisions, shall be allowed the sum of two dollars and a half for every thirty miles travelling to, and re- turning from, the place of comparing the polls in the district, and the same sum for every day he shall necessarily attend for the pur- pose of comparing said polls, and also the amount of his ferriages, which shall be paid by the treasurer on affidavit of the sheriff or returning officer aforesaid. 11. In the event of the death, or resignation of any member of the house of representatives in the congress of the United States, the election to supply such vacancy, held in pursuance of the writ of election issued by the governor, shall be held at the time di- rected in such writ, under the same rules, regulations and restric- tions as herein prescribed for holding, conducting and determining the regular elections. 10. 1812, c. 831, s. 8. 11. 1S12, c. 831, S. 9. CHAPTER 73. M IlilT I A . AN ACT CONCERNING THE MILITIA OF THIS STATE. Section 1. Who are to be enrolled and how pro- vided. 2. Who are exempted from militia duty. 3. Members of fire companies exempted — Also persons of conscientious scruples. 4. Officers to enrol and make return of exempts. c 5. Free persons of color not to be en- rolled, except as musicians. 6. Persons enrolled for duty to equip themselves— Forfeitures for neglect- ing to equip. 7. How the infantry shall be divided. 8. Regiments, brigades and divisions, how distinguished. Section 9. Officers of the infantry — Their grade and how to be appointed — Adju- tant general to be appointed — Gov- ernor may appoint four aids de camp. 10- Uniform of officers. 11. Penalty on officers for resigning or failing to equip themselves -\vithin twelve months — How major and brigadier generals, colonels and other field officers shall be elected and commissioned — How they shall resign, and to whom notification of vacancies shall be made, and by whom. Chap. LXXIIL] Militia. 393 Section 12. Officers, to give notice of their ab- sence. 13. Officers to deliver to their successors money or papers. 14. Rules of discipline. 15. Captains' districts, how laid off— Boundary lines of regiments in the the same county, how may be al- tered. 16. Regulations as to company musters. 17. Company courts martial— How to proceed — Appeal allowed. 18. Company musicians, how appointed, and their privileges. 19. Overseers of roads not to order out hands on days of company muster. 20. Captains of companies to make re- turns. 21. Regimental or battalion musters. 22. Penalty on officers failing to attend reviews or musters. 23. Commandants of regiments, &c. to give notice of reviews or musters. 24. Commissioned officers of regiment, &,c. to meet for exercise, the day before review or muster. 25. Penalties on officers and privates for misbehaving. 26. Persons on muster ground failing to do duty, to be arrested. 27. Officers and privates attending mus- ters, exempt from arrest in civil cases —Not to pay tolls or ferriages. 28. Parents, &c. liable for fines. 29. Regimental and battalion courts martial — Their power and duties. 30 . Duty of paymasters . 31. Officers holding a court martial must take an oath. 32. Proceedings at courts martial against delinquents. 33. Courts martial may adjourn. 34. Duties of commanding officers of regiments and. companies as to fines. 35. Returns to be made by the command- ants of regiments. 36. Duties of major and brigadier gen- erals as to reviews. 37. Returns to be made by brigadier and major generals. 38. Penalty on a general officer or com- mandant of a regiment for failing to make review or muster, to make returns, or to be properly equipped. 39. Duty of the adjutant general- 40. In certain cases, returns may be made and orders issued through the post office. VOL. I. 50 Section 41. Governor may remit fines and penal- ties. 42. Regiments of cavalry, how to be formed, officered, equipped, &c. 43. Troops of cavalry, when to muster, how returns to be made — And who to command when mustering with infantry. 44. Field officers of cavalry to review and make returns. 45. Cavalry courts martial to be held. 46. Fines of cavalry officers and privates same as in the infantry. 47. How cavalry fines to be appropriated. 48. Duty of adjutant of the regiment. 49. Certain sections of this act to apply to the cavalry. 50. Provision when the number of the cavalry troop shall be less than required by law. 51. Volunteer companies of artillery, light infantry, grenadiers or rifle- men may be formed. 52. May choose their own uniform — To be under the command of the com- manding officer of the regiment, and to do duty as other companies. 53. A regiment of volunteer companies may be formed — Field officers, how chosen. 54. How captains, lieutenants and non- commissioned officers shall be elected or appointed. 55. Company to muster once in three months — May adopt rules and reg- ulations for their own government. 56. Officers of volunteer companies to make returns. 57. Persons enrolled in volunteer com- panies not to return to the infantry except by permission, &c. — Volun- teers bound to serve in the infantry until they equip themselves. 58. Officers of volunteer regiments to re- view. 59. How vacancies among the field offi- cers of volunteer regiments shall be filled. 60. Certain sections of this act, relative to the infantry, to apply to the artil- lery, &c. 61. General courts martial, how to be ap- pointed and held. 62. Officers of general courts martial, how to be selected. 63. Of what rank the officers shall be. 64. Officers for courts martial to be reg- ularly detailed. 65. How to be detailed. 394 MILITIA. [Chap. LXXIII. Who are to be enrolled and how provided. Who are ex- empted from militia duty. Section 66. Courts martial, how constituted. 67. Officers of a court martial, how to take rank — To take an oath. 63. How witnesses to be summoned. 69. How to be sworn. 70. Rules for the government of courts martial. Duty of judge advocate. 71. 72. Proceedings against officers arrested and refusing to attend. 73. Perjury before courts martial. 74. For what conduct an officer may be cashiered. 75. Detachments of militia for the Uni- ted States' service. 76. Substitutes may be received. 77. Vacancies under the rank of field officers in detachments, how to be supplied. 78. A militiaman, after one tour, to be exempt from a second draft. 79. Penalty for refusing to perform duty Section when ordered out by the civil au- thority. 80. Seven justices may call out the mi- litia in case of invasion or insur- rection. Duty of the commanding officer on such requisition. Commanding officer called out, to notify his superior officer — Superior officer to notify the governor. Three justices may order out the militia to suppress outlawed or runaway slaves. Pay of the militia when in service. Punishment for refusing to appear on call or alarm given. Punishment for desertion. Repealing clause. Adjutant general to have copies of this act printed and distributed. When this act to be in force. 81. 82. 83. 84. 85. 86. 87. 89. 1 Be it enacted by the General Assembly of the State of J^orth Carolina, and it is hereby enacted by the authority of the same, That all free white men and white apprentices, citizens of this State, or of the United States residing in this State, who are or shall be of the age of eighteen and under the age of fortyfive years, shall, as soon as is practicable, be severally and respectively en- rolled in the militia of this State by the captain or commanding officer of the infantry company, within the bounds of whose dis- trict, (to be alloted him as hereinafter directed,) such citizen shall reside ; and it shall at all times be the duty of every captain, or commanding officer of any company, to enrol every such citizen, except as hereinafter excepted, and also those between the ages aforesaid and not exempt by law, w^ho may from time to time come to reside within the bounds of his district 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. 2. The vice president of the United States, the officers, judi- cial and executive, of the United States, the members of both houses of congress and their respective officers ; the judges of the supreme and superior courts of law, and justices of the peace, councillors 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 sherifis of the several counties, physicians and surgeons, ministers of the gos- pel of every denomination, that are properly and regularly ordain- ed and have the cure of souls, all custom house officers, postmas- ters, and stage drivers or mail carriers, employed in the care and conveyance of the mail to the post offices of the United States, 1. 1806, c. 70S, s. 1. 2. 1806, C. 706, s. 2.— 1823, C. 1213.- -1812, C. 828, s. 7. Chap. LXXIIL] militia. 395 all ferrymen, employed on any ferry of a public road, provided the same shall not exceed one superintendent and one other to each ferry, all millers of public mills, provided that this exemption shall only extend as to each mill to one person subject to do military duty, whose occupation and daily employment it is to attend and per- form the duty of a public miller, all inspectors of produce, all branch and hcensed 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 seminaries of learning within this State, shall be and they are hereby exempted from mili- tary duty : Provided always, that nothing herein contained shall be so construed as to exempt any person from performing duty in case of invasion or insurrection in this State. 3. The members of the several fire companies, so Ions; as Members of , , T, . , ~ . , . * , ' ^ tire companies they shall contmue members oi said companies, that now are or exempted. hereafter may be estabhshed in this State, shall be and they are hereby declared exempted from all militia duty, except in time of war, invasion or insurrection. It shall be the duty of the captains of all fire companies, once a year, to make a regular re- turn to the colonel commandant of the regiment, by the fifteenth day of October, under the penalties now imposed on captains of mili- tia companies on failure of making return, in the limits of which the company exists, of all persons belonging to said company ha- ble to muster, and the colonel of the regiment shall include them in his regular annual returns to the general of the brigade and adju- tant general. Persons having scruples of conscience against bear- Also persons of ing arms, who shall produce, to the captains of their respective '^°"®*^j^'^'^^°"^ districts, certificates, signed by the clerks of their 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 afiirmation has been duly made, shall not be compelled to muster or perform military duty, except in cases of insurrection or invasion, or pay any tax for said 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 enrol, and Officers to en- keep enrolled on their muster rolls, all within the limits of their re- retum'^of' ex^ spective districts, who are exempt from performing militia duty byempts. law except in time of invasion or insurrection, and shall return the number of exempts in their annual returns to the commandants of regiments, who shall make a hke return of all exempts in their re- spective regiments in their annual returns to the brigadier and adju- tant generals, regulations for which annual reports are hereinafter prescribed. 5. It shall not be lawful for any captain or other militia officer Free persons of in this State to enrol any free persons of color, except for musi- g°J.°jj"^*g°p^p^ Cians. as musicians. 3. 1820, c. 25.— 1806, c. 70S, s. 2.— 1833, c. 16. 4. 1S:«, c. 7. 5. 1S23, c. 12-19. 396 MILITIA. [Chap. LXXIII. Persons enrol- led for duty to equip them- selves. Forfeitures for neglecting to equip. How the in- fantry shall be divided. Regiments, brigades and divisions, how distinguished. 6. Every citizen enrolled and notified, as is directed in the first section of this act, shall, within six months thereafter, 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 es- pontoon ; 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 if he shall fail to provide himself with arms and accoutrements, as herein directed, and if the commis- sioned officers of his company shall deem him in sufficient circum- stances to equip himself, he shall forfeit and pay, as follows : for the want of a good, serviceable musket or rifle, the sum of fifty cents. And all parents, guardians and masters shall furnish those of the mihtia, who shall be under their care or command, with the arms and equipments above mentioned, under the hke penalty for each neglect : Provided such guardian shall have sufficient in his hands belonging to his ward to purchase said arms. If the com- pany court martial, after examination on oath, shall adjudge any person enrolled to be incapable of providing himself 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 necessary, 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, regi- ments, battalions and companies ; each division shall consist of at least two brigades ; each brigade of at least four regiments, each county forming at least one regiment ; each regiment, when con- venient, shall consist of at least two battalions ; each battalion of five companies ; and each company of sixty four privates. 8. The following are hereby declared to be the regiments, brig- ades and divisions of the infantry, to be known and distinguished as here designated, viz : — No. divi- sions. Of what brigades composed. No. of brigades. Of what regiments composed. I. 1st, 18th. 1, C 1, 2, 3, 4. 18, I 5, 6, 10, 9. 2. 4th, 14th. 4, ( 41, 44, 33, 34, 35, 32. 14, I 53, 54, 42, 43, 51, 93. 3. 6th, 16th. 6, ( 45, 47, 48, 49, 55, 56, 94. 16, I 59, 37, 38, 50. 4. 7th, 10th, 11th, 7, C 63, 64, 87, 88. 10, \ 76, 77, 78, 70, 71. 11, ( 68, 69, 60, 61, 62, 95. 6. 1806, c. 708, s. 1, 3 and 9. 7. 1806, c. 708, s. 3. 8. Adjutant general's report. L/HA.P. LAXlll.J MILITIA. 5. 15th, 19th. 15, ( 79, 80, 81, 92, 52, 89. I 90, 86, 82, 83, 84. 19, 6 3d, 12th. 3, ( 30, 39, 24, 31. 12, I 25, 26, 40, 28. 7. 5th, 17th. 5, ( 20, 21, 13, 14, 15, 16. 17, I 29, 35, 36, 22, 23. 8. 2d, 13th. 2, ^ 17, 18, 19, 27. 13, I 12, 11, 8, 17. 9. 8th, 9th. 8, ( 67, 91, 65, 66, 57, 58, 96 9, I 46, 72, 73, 74, 75. 397 No. of Regt. How distingnished in No. of How distinguished in Counties. Counlieswhere there are mure than one Kegt. CounlieB. Regt, 48 CuuMties wliere there are more than one Kegt. Currituck, 1 Orange, Hawfields, Camden, 2 a 49 Haw River, Pasquotank, 3 ^ Person, 50 Perquimons, 4 Richmond, 51 First, Chowan, S (( 93 Second, Gates, 6 Iredell, 52 South, Tyrrel, 7 cc 89 North, Washington, 8 Anson, 53 Lower, Bertie, 9 u 54 Upper. Hertford, 10 Randolph, 55 West,' Hyde, 11 11 56 East, Beaufort, 12 Guilford, 57 West, Martin, 13 a 58 East, Halifax, 14 Upper, Caswell, 59 u 15 Lower, Montgomery, 60 East, Northampton, 16 K 61 West, Carteret, 17 Cabarrus, 62 Craven, 18 Rowan, 63 Fork, Pitt, 19 11 64 Lower, Edgecomb, 20 Upper, Stokes, 65 North, a 21 Lower, 11 66 South, Nash, 22 Rockingham, 67 Lower, Warren, 23 11 91 Upper, Onslow, 24 Mecklenburg, 08 North, Jones, 25 a 69 South, Lenoir, 26 Lincoln, 70 Upper, Greene, 27 11 71 Lower, Johnston, 28 Surry, 72 North, Franklin, 29 11 73 South, New Hanover, 30 Wilkes, 74 Lower, Duplin, 31 C( 75 Upper, Sampson, Cumberland, 32 Rutherford, 76 West, 33 Lower, (( 77 South, (I 34 Upper, « 78 East, Wake, 35 East of Raleigh, Burke, 79 Morganton, it 36 West of Raleigh, 11 80 Lower Creek, Granville, 37 North, 11 81 Pleasant Gardens, (( 38 South, iC 92 Toe River, Brunswick, 39 Buncombe, 82 Caney River, Wayne, 40 11 83 Asheville, Bladen, 41 i( 84 South, Robeson, 42 Lower, Columbus, 85 It 43 Upper, Haywood, 86 Moore, 44 Davidson, 87 Lower, Chatham, 45 Lower, (1 88 Upper, (( 94 Upper, Macon, 90 Ashe, 46 Cabarrus, 1 Volunteer Regt. Orange, 47 Hillsborough, Stokes, 2 Do do. 9. The officers of the infantry shall be as follows : to each di- Officers of the vision there shall be one major general, and two aids de camp with th^r grade and the rank and pay of major, one division inspector, and one division how to be ap- quarter master, with the rank and pay of lieutenant colonel, to be ^^^^^ ■ 9. 1806, c. 708, s. 3.— 1814, c. 867.— 1816, c. 924. 393 MILITIA. [ClIAP. LXXIII. Adjutant gen- eral to be ap- pointed. Govenior may appoint four aids de camp. Unifortn of of- ficers. Penalty on of- ficers for re- signing or fail appointed by the major general and commissioned by the governor ; to each brigade one brigadier general, and one aid de camp with the rank and pay of major, one brigade inspector with the rank and pay of major, one hospital surgeon and two mates^ and one assistant deputy quarter master general with the rank and pay of a captain, to be appointed by the brigadier general and com- missioned by the governor ; to each regiment one colonel and lieu- tenant colonel and one major ; there shall also be to each regiment one adjutant and one quarter master, 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 fife major, all to be appointed by the commanding officer of the regiment, and the adjutant shall, when necessary, discharge the duties heretofore assigned to the brigade inspectors within his regi- ment, for which service he shall be allowed by the court martial a reasonable compensation, if they think proper, to be paid out of the fines collected ; to each company there shall be one captain, three lieutenants, one ensign, four sergeants, four corporals, one drummer, and one fifer ; the commissioned officers of each com- pany shall be recommended by the field officers of the regiment to the governor, who is requested to issue commissions to fill such appointments, according to the said recommendations ; the non- commissioned officers, to wit, sergeants, corporals, drummers and fifers, shall be appointed by the captain of each company ; all com- missioned officers of the same rank shall take precedency on com- mand 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 detachment. The general and field officers, and all other commis- sioned officers, shall reside within the division, brigade, regiment, battalion or company district, which they respectively command : an adjutant general of the militia shall be appointed and commis- sioned by the governor of the State, who shall rank as a brigadier general, and who shall receive a salary 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 governor : Provided hoivever, that no major gen- eral, brigadier general or colonel shall be appointed or act as adju- tant general. The governor for the time being shall be entitled to four aids de camp, whom he may appoint and commission with the rank of colonel. The commissions hereby authorized and directed to be granted to the several aids de camp of the governor, major generals and brigadier generals, shall be held during the pleasure of the officers to whom such aids de camp may be attached. 10. The uniform prescribed for the officers of the United States shall be the uniform to be worn in future by the commissioned officers of this State. 11. If any officer, below the rank of general, shall resign, or fail to equip himself according to law within twelve months from the 10. 1S13, c. 850, s. 13. 11- Amendment. Chap. LXXIIL] militia. 399 date of his commission ; if a colonel, he shall forfeit and pay the ing to equip sum of fifty dollars ; if a lieutenant colonel, he shall forfeit and pay ^fthin^i2^^ the sum of forty dollars ; if a major, the sum of thirty dollars ; if a months. captain, the sum of twenty dollars ; if a first Heutenant, the sum of fifteen, if a second or third lieutenant or ensign, the sura of ten dollars ; to be sued for and recovered by the adjutant, in the name of the governor, and to be accounted for to the pay master. When How major and there shall occur a vacancy in the office of maior general, the ad- ^'"gadier sen- , * • . 6r3.1s colonels jutant general shall issue orders to the brigadier generals in that and other field division, who shall forthwith issue orders to the colonels of their °,^''^f''? ^^^i^ ^^ respective regiments to call together the commissioned officers of commissioned. their regiments, at the usual place of regimental musters, and at such time as the brigadier general shall direct, and they shall pro- ceed by ballot to elect a major general of that division, and it shall be the duty of each colonel to transmit to the brigadier general of his brigade a fair statement of the votes so polled, within ten days after said election, and the brigadier general shall compare the votes transmitted to him by the colonels in his brigade, and shall trans- mit to the adjutant general a fair statement thereof, and it shall be the duty of the adjutant general to 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 removal, it jj^^ they shall be the duty of the brigadier general, in whose brigade the shall resign, major general lived, to inform the adjutant general thereof, and all notiUcation'of resignations of major generals shall be made to the adjutant general, vacancies to be and by him made known to the governor. When a vacancy shall whoni.^" ^ occur in the office of brigadier general, it shall be the duty of the major general of that division, to issue orders to the several col- onels in that brigade to call together the commissioned officers of their respective regiments, at the usual place of review and at such time as the major general shall direct, who shall proceed by ballot to elect a brigadier general of that brigade, and the several colonels shall transmit, within ten days, a fair statement of the votes given to the major general, whose duty it shall be to compare the several returns, so 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 removal, it shall be the duty of the colonel, senior in commission, of the county wherein said brigadier general lived, to inform the major general thereof, by mail or otherwise forthwith, and all resignations of brigadier generals shall be made to the major general, and by him made known to the governor. If, on comparing the votes given in 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 in 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 com- mand attached to that regiment shall call together the commissioned 400 MILITIA. [Chap. LXXIII. officers, 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 supply 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 it shall be the duty of the brigadier general to inform the governor thereof, from whom a commission or commissions shall issue ; all resignations of colonels, heutenant 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 resignation ; 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. iPodce onhllr ^'^' ^^®" ^"^ officer, commanding a division, brigade or regi- absence. ^^^ ment, shall have occasion to be absent from his usual residence two months or more, it shall be his duty to notify the officer, next entitled to the command, of such his intended absence, and also his next superior officer in command. Officers to de- ^^^ ^^^ officers, who shall have in their hands either money or liver to their papers received by virtue of their appointments, shall, when thev successors 1 1 • /T* 111" J money or '^^^^ ^^^ir office, pay and deliver the same to their successors in papers. office, under the penalty of one hundred dollars, to be recovered in the name of the governor, and apphed as hereinafter directed. Rules of dis- 14. The rules of disciphne and system of tactics, which are "P "^^- now or hereafter may be approved and prescribed by congress, shall be and the same are hereby established, as the rules for the discipline of the militia of this State, except such aherations as shall be rendered necessary by unavoidable circumstances, t^ias^how^'iaid \^- '^^^ regimental or battahon courts martial, of the several off. ' regiments or battalions in this State, shall have power so to lay off the several captains' districts, as to render them as convenient to the inhabitants as a due regard to the requisite number of persons liable to perform mihtary duty will permit ; and they may at any subsequent court martial so alter or consolidate their respective districts, as to create new ones, or unite portions of districts to- gether, so as to form other and separate districts, as a majority of the court martial may think proper ; 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 water courses or mountains, as to render their at- tendance inconvenient at any place where they have been accus- tomed to muster, and where such detached sections contain a pop- ulation of thirtysix men, liable to perform military duty, it shall be the duty of the regimental or battalion court martial to lay that sec- tion off into a separate captain's district, and to appoint officers in the same manner as in other districts : and where there shall be 12. 1806, c. 708, s. 18. 13. 1806, c. 708, s. 19. 14. 1806, c. 708, S. 5. 15. 1831, c. 8, amended. CpIAP. LXXIIL] MTLITIA. 401 two or more regiments in any county within this State, a majority Boundary lines of the officers, composing such regiments, shall have full power to o}^\^|™^g® alter and regulate the boundary lines of their regiments, and in the county, how event the officers should not agree with respect to said lines, it "^'^^ eatered. shall be the duty of the county court, a majority of the justices being present, to 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 commandins; officer of a company shall, Regulations as 1 . •' ' , 1 ^ 1 1 • ^ 1 1 to company at least twice a year, at such place as may be designated by a ma- musters. jority of his company, and agreeably to the order of the command- ing officer, muster, train, and exercise such company, 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 exercise, and the proper company ma- noeuvres, at which muster the officers and privates shall appear armed and equipped as herein before required. It shall not be lawful for the captains to call their men together, without their consent, for the purpose of company musters, more than twice in each year, except in cases of insurrection or invasion : Provided, that this enactment 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 gov- erned by the same rules and penalties, as govern them in their reg- ular musters. If any captain or commanding officer of a company shall fail or neglect to muster his company, as herein directed, he shall forfeit and pay the sum of six dollars, to be adjudged by the next regimental court martial ; and if he, or any commissioned offi- cer of the company, shall fail to appear equipped, as directed, at the said muster, the officer so failing shall pay the sum of four dol- lars ; 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 de- linquent : 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 nighest in rank present being hereby authorized to administer the same. When companies consist principahy of persons residing within any town, and the muster ground is at, or within one mile of, said town, all fines imposed by this act for not appearing at reviews and ip,usters, or, if appearing, not being properly armed and accoutred, shall be doubled. 17. The commissioned officers of the company, or any two of Company them, after each and every muster of the company, shall, on the S?"'"'^.'^'^'^^^^'- , . •' . , , 111 • How to pro- same day, meet in court martial, and proceed to try and determine ceed. on all cases which may come before them, and on conviction of any delinquent, the officer highest in rank present shall enter up 16. 1806, c. 708, s. S and 24.— 1827, c. 11.-1829, c 31, s. 2.— 1832, c. 5, s. 3. 17. 1306, c 703, s. 12.-1813, c. 850, s. 4. VOL. I.- 51 402 MILITIA. [Chap. LXXIII. Appeal al- lowed. Company mu- sicians, how ap pointed, and their privileges Overseers of roads not to order out hands on days of company muster. Captains of companies to make returns. Regimental or battalion mus- ters. judgment, and issue writs of execution against the goods and chattels and body of the deUnquent, as in judgments in civil cases, directed to the constable of that district, which constable shall proceed to execute the same in the same manner and under the same rules, as are established by law for the government of con- stables in their duty in civil cases, and shall be allowed the same fees for his services, and shall make his return to the next company court martial. The right of appeal shall be allowed from a com- pany 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 presiding officer of the company court martial, to abide by the decision of the battalion or regimen- tal court martial, which appeal shall be taken in like manner as appeals from the justices of the peace to the county courts, and shall be proceeded on in like manner by the battalion or regimental courts martial. 18. For the encouragement of military music, it shall and may be lawful for the captain of each and every raihtary company of infantry in this State, to select from among the persons enrolled in their respective companies, one fifer and one drummer, each being properly qualified for their appointment, which 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, it shall be the duty of the field officers to grant a certificate to such musi- cians of their appointment, and the county court of the county, in which such companies respectively are, shall exempt and discharge such musicians, so selected, during their continuance in appoint- ment, from serving on all juries, from working on the public roads, and from the payment of poll taxes ; such musicians shall be re- movable at the pleasure of the field officers of the regiment, to which they severally belong, and shall attend each and every mus- ter of their respective companies, and also the muster of the offi- cers, and perform the duties of their appointment, under the penalty of four dollars for each and every neglect, to be collected and applied in the same manner that other fines are. 19. No overseer of any road in this State shall order the hands under him to work, on the days previously appointed for musters by the captain of the company, to which such hands belong. 20. The captains shall, at the several musters or within thirty days after being required so to do, or immediately if required at a regimental or battahon muster, make a return of 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 bat- talion muster, to be ordered by the commandant of such regiment IS. 1312, c. 828, s. 14. 19. 1812, c. 828, s. 12. 20. 1806, c. 708, s. 10. 21. 1806, c. 708, S. 6. Chap. LXXIIL] militia. , 403 or battalion, at such place as may have been designated, or may hereafter be designated by a majority of the commissioned officers of such regiment or battalion, at which, such commanding officer shall cause the militia to be exercised at least two hours on each day. 22. If any officer shall fail to attend at any review, regimental Penalty on of- or battalion muster, or, attending, be not armed as required by this See rs failing to . , „ . . 1 c • 1 r V • 1 attend reviews act, he shalJ, on conviction beiore a court martial, lorieit and pay, or musters. if a field officer, the sum of twenty dollars ; if a commissioned officer under that grade, the sum of ten dollars ; and every non- commissioned officer or private, who shall fail to attend such review or muster, shall, on conviction, 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 ascertained at the next company muster, and, when collected, to be accounted for with the court martial, or, if appear- ing, be not armed as by law directed, shall for such default forfeit and pay a sum not exceeding one dollar and fifty cents nor less than fifty cents, to be adjudged and accounted for as aforesaid. 23. The commanding officer of each regiment or battalion shall Commandants eive to the coraraandins: officers of the companies, under his com- ?^ '^^,^™.*''^''®' o ^^ ^ I ^J ^ etc. to sfive mand, not less than ten days notice of the battalion or regimental notice of re- musters or reviews, which may at any lime be ordered. views or mus- 24. Every commissioned officer of the infantry, by appointment commissioned of the commanding officer of each regiment, shall meet the day officers of reg- before that, on which the commanding officer of such regiment or ™ g^^foj g^-^" battalion has appointed for holding of reviews or regimental mus- ercise the day ters, in their respective counties, where the said commissioned Q^^'^g^gJ'*^^ officers of infantry shall be exercised by the adjutant, or by the commanding officer of such regiment or battalion, at least three hours, when and where they shall be instructed in all matters of field exercise and discipline, according to the system which now is or may hereafter be established by law. And any commissioned officer, who shall fail or neglect to appear at the time and place, so appointed by the commandant of his regiment or battalion, as required by this section, or, if appearing, be not armed and equip- ped as by this act directed, when at any review or parade, such commissioned officer, so failing and neglecting, shall forfeit and pay the same sum, which such commissioned officer would be com- pelled to pay, in cases of failure and neglect at any regimental or battalion reviews or parades, and the same shall be recovered in the same manner and the money applied, as in other like cases di- rected by this act, and such commissioned officer shall in every instance whatever be subject to the same punishment for neglect of duty or disobedience of his superior officers, as such commis- sioned officer would be subject to when in actual military service. 25. If any officer shall suffer himself to be intoxicated, or be- Penalties on of- •' ncers and pri- 22. 1806, c 705, s. 8. 23. 18i;j, c. S50, s. 7. 24. ISOG, c. 708, s. 16. 2.5. 1806, c. 708, s. 8 and 9. 404 MiLTTiA. [Chap. LXXIII. vates for mis- have in a riotous or disorderly manner, when required to be on du- aving. ^^^ ^j, j]jgQ]jgy jjjg orders of his commanding officer, he shall either be fined and reprimanded by the court martial, or, at their discre- tion, shall be cashiered : Provided^ he shall not be cashiered but by a court martial regularly detailed for his trial as hereinafter di- rected. If any non-commissioned officer or private shall, during the time of muster, resist his commanding officer or refuse to obey his lawful commands, if a non-commissioned officer, he shall be kept under guard during such muster, and fined at the discretion of the court martial not exceeding two dollars. Persons on ^^- If any pp^son, liable to perform duty, shall appear at or muster ground near the parade ground, during the term of any review or muster, dmy"^to°be ar- ^^^ shall not take his proper station and perform the duties requir- rested. ed of him by law, or behave himself in a disorderly manner, while on parade, it shall be the duty of the commanding officer of the regiment or corps to order the said person under guard, there to be detained during the time of exercise or the service then per- forming, and until the mihtia are discharged, and such person shall further be fined at the discretion of the court martial. Officers and 27. No officer or soldier, directed by this act to appear and tendin^^mus- ^ii^ster as aforesaid, shall be liable to be taken or arrested, in any ters exempt civil action or process whatever, on the day such person is direct- civil' rases! ^° ed 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 is hereby declared to be void. Every person required by this act to attend musters and reviews, going to or re- Not to oav turning from the same, shall be suffered to pass over any toll bridge tolls or fer- or toU causeway, and shall be put over any ferry, without delay, riages. |-^.gg f^Qm any charge whatever. If any ferryman or proprietor of any toll bridge shall demand pay or refuse to put over such person, he shall forfeit and pay for every such offence four dollars, to be recovered by warrant before any justice of the peace to the sole use of the informer. Parents, &c. 2S. All parents, masters and guardians within this State shall, liable for fines, jjnf] j|jgy gj-g hereby declared to be liable for the payment of any fines, incurred by those under their care, as well for non-attend- ance at company, battahon or regimental musters and general re- views, as not being armed and equipped as herein before provided. Ret'imentaland ^^' '^^^ Commanding officer of each regiment or battalion shall battalion order a court martial to be held, at the place appointed for the Their^power Cluster of the same, on the day after the regimental or battalion and duties. muster, or on the same day if convenient, which court shall con- sist of a majority of the officers of the 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 to their duty by the adjutant of the regiment or battalion, by a roster to be kept by him, and the said court when 26. 1806, C. 708, s. 25. 27. 1806, c. 708, s. 21. 23. 1803, c. 749, s. 5. 29, 1606, c. 708, s. 11.— 1817) C. 955. Chap. LXXIII.] militia. 405 convened shall appoint 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 advo- cate of this court, according to the best of my skill and ability : so help me God." And the judge advocate shall administer the fol- lowing oath to the members of the court martial. " I, A. B. do swear, that I will hear and determine all the causes which may come before this court, and that I will faithfully report all dehnquents that come within my knowledge, that I will account for all fines and for- feitures by me collected or received, and in all cases enforce a due execution of the militia laws of this State, to the best of my knowledge and ability : so help me God." They shall inquire into the age and ability of all persons, that come before them by appeal, and exempt such as may be judged incapable of service, also try and decide on all persons charged with omission or commission, as well by officers as by j)rivates. The said regimental or battalion court martial shall hear and determine all appeals from the company court martial, and order and 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 promote 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 martial, he is hereby authorized and required to enter up judgment and issue execution, which if against commissioned officers shall be directed to the ad- jutant or constable ; if against non-commissioned officers, or pri- vates, shall be directed to a constable of the county, to which the delinquent belongs ; the constable or adjutant shall proceed to distrain and sell, in the same manner, and under the same rules as are established by law for the government of constables in their duly in civil cases, and shall be allowed the same fees for their services. The adjutant or constable shall in all cases make due returns to the next succeeding court martial, and in case of failure of such adjutant, sergeant or constable to do the several duties, as required of them by this act, in collecting and accounting for all fines, such adjutant, sergeant or constable, as the case may be, shall incur a penalty or fine of double the amount that such adju- tant or constable was bound to collect and account for. 30. It shall be the duty of the pay master to demand and re- Duty of pay ceive of the adjutants, sergeants, constables and others, who may ™^^ have collected fines and forfeitures, and distribute the same agreea- bly to the directions of the court martial, and settle his accounts annually with the judge advocate ; and the pay masters respective- ly shall, before they enter on the duties of their 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 for, agreeably to law, of all sums of money which may come into his hands by virtue of his appoint- so. ISOG, c. 703, S. 12. 406 MILITIA. [Chap. LXXIIL ment ; and it shall be the duty of the commanding officer afore- said, under the penalty of two hundred dollars, to sue for and recover the same, and when the same is so received by him, apply it as is already by law directed, and the several pay masters shall be allowed a reasonable compensation for their services by the court martial. In case there shall be no pay master appointed by the commandant of any regiment, then and in that case each com- mandant shall perform and execute the duties of pay masters as above required. iu^Tcour°t'^ 31. Every officer, at the first meeting of the court martial after martial must being commissioned, shall take and subscribe the following oath, take an oath, j.^ j^g administered in open court martial by the judge advocate, or if a company officer, it may be taken before the commanding officer of the regiment. " I A. B. do solemnly swear, that I will execute the office of according to the rules of military discipline and the laws of this State, to the best of my knowledge and abil- ity, and that I will support the constitution of the United States and of this State : so help me God." And also the following oath : "I A. B. do swear, that I Vkill, at the court martial of the company to which I belong, duly administer justice, and apply fines and penalties according to law and to the best of my ability without favor, afl:ection or partiality : so help me God." No officer shall be allowed to sit in a regimental, battalion or company court mar- tial, unless he shall have taken and subscribed the oaths aforesaid. TOurfs^martial* ^'^' ^^ ^'' ^")' regimental, battalion or company court martial, or against delin- company of the officers, there shall be any delinquents, either for quents. non-attendance or not being properly armed and 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 following 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 battahon, or to the officers assembled, and if any officer or private has an excuse to offer to the court martial, 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 dehnquency, and in all cases, whether from neglect or failure of the officers and privates at regimental or battalion musters, or of appeals from the company courts martial, and of all other cases of which the regimental courts martial have jurisdiction, their determination shall be final. Courts martial 33. The several courts martial have power and legal authority may adjourn, jq adjourn from day to day, or to any future day, when it shall be the duty of the officers, entitled to compose the same, to attend, under the penalties by law established in other like cases for non- attendance, and at which time the unfinished business of the court may be acted upon : If there should not meet a sufficient number at the place of adjournment to form a quorum, the officer ordering the same shall have power to continue its adjournments. 31. 1S06, c. 708, s. l."?.— 1808, c. 749, s. 3. 32. 1S06, c. 703, s 14. 33. 1806, c. 708, s 15. Chap. LXXIIL] militia. 407 34. It shall be the duty of each commanding officer of a regl- Duties of com- ment, to exact and enforce regular settlements of all fines, collected ^(!^"g^of °g^i. under the militia laws, from the several persons, charged with thementsand collection thereof whhin his regiment, which fines shall be appro- to fines"*^^ ^ priated as directed by law, and it shall be the duty of each captain or commanding officer of a company to 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. 35. Every commandant of a regiment shall, at least once in Returns to be every year, on or before the 25th day of October, make a return ^^^^ by the J J ' *^ , , comnia.n CI tints to the brigadier general of the brigade to which such regiment be- of regiments, longs, and shall transmit a duplicate of the same to the adjutant 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. It shall be the duty of a major general to review his division Duties of once in every three years, and a brigadier general to review his ^li°'senera"s^' brigade once in every two yeai's, the several corps composing a as to reviews, 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 counties. It shall be the duty. of the major and brigadier generals to give fifty days' no- tice, by order to the commandants of their regiments or brigades, of the time of the review, previous to such reviev/ taking place. Any major or brigadier general, failing to give notice as above directed, shall forfeit and pay, for every offence, the sum of forty dollars, to be recovered before any jurisdiction having cognizance thereof, one half to the use of the county, in which recovery is had, and the other half to the use of the person suing for the sanje. 37. The brigadier general of each brigade shall make a return of ^<^t"iy'\°^6 his brigade to the major general of his division, on or before thcadicrand tenth day of November in each and every year, and shall transmit "^^J^"^ a'^'^®''^^^- a duplicate of the same to the adjutant general, or 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, on or before the annual meeting of the General Assembly. 38. If any general officer, or commandant of a regiment, shall fail Penalty on a to review his division or brigade, or muster his regiment, or to or"c^ommand^-'^' make an annual return of his division, brisrade or regiment, as is now ant of a regi- required by law, or if any major or brigadier general shall fail to ^^'\o °eview equip himself, it shall be the duty of the governor to cause the or "muster, to adjutant general to give such delinquent officer thirty days' notice ^r'^^^^'Yepro'lfcV. of his neglect of duty, and if such delinquent does not, within forty ly equipped. days thereafter, render a satisfactory excuse for such neglect, by showing to the governor that such delinquency happened in conse- 34. 1812, c. 828, s. 4. 35. 1806,- c. 708, s. 10.— 1S03, c 749, s. 2. 36. 1832, c. 5, s. 1.— 1317, c. 943, s. 1 and 2. 37. 1806, c. 70S, s. 10 and 22. 38. 1532, c. .5, s. 1 and 2. 408 MILITIA. [Chap. LXXIII. quence of indisposition, absence from the State, or other sufficient cause, it shah be the duty of the governor to strike his name from the hst of officers, and when the governor shall thus strike the name of any officer from the list officers, he shall communicate it to the adjutant general, who shall have it published in some news- paper within this State, and issue proper notices to supply the vacancy. Duty of the 39, Jt shall be the duty of the adjutant general to distribute all eral/° ^^^' orders from the commander in chief of the State to the several corps ; to attend public reviews, if required, when the commander in chief of the State shall review the militia, or any part thereof; to obey all orders from him relative to carrying into execution and perfecting the system of military disciphne, established by law ; to furnish blank forms of different returns that may be required, and to explain the principles upon which they shall be made ; and also to furnish blanks of such returns ; to demand and receive, from the several officers of the different corps throughout the State, returns of the militia under their command, reporting the actual situa- tion 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, bri- gades, regiments and battalions are hereby required to make, in the manner herein directed, that the adjutant general may be duly furnished therewith, previous to the biennial meeting of the Gen- eral Assembly, from all which returns he shall make proper ab- stracts, 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 ben- efit 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 this State to the president of the United States. In failure of which recited duties, he shall suffer the following fines and penalties : for not at- tending all public reviews, when required by the governor or com- mander in chief of the State, fifty dollars ; for not furnishing blank forms, as required by this act, the sum of ten dollars for each ne- glect, to be recovered before any jurisdiction having cognizance thereof, 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 required by this act, upon conviction of either before a general court martial, to be ordered by the governor, he shall be cashiered ; the said ad- jutant general shall be compensated for the expense of all the blank forms of returns, necessarily prescribed in his department, and the postage of all letters to and from him in his capacity as adjutant gen- eral, to be paid to him by the treasurer of the State, on the adjutant general producing a stated account of the same by him certified ; the adjutant general shall keep a roster of the names and dates of the commissions of each major and brigadier general in this Stats, 39. 1806, c. 7t)8, s. 7.— 1808, c. 749, s. 2. Chap. LXXIIL] militia. 409 likewise the counties under each of their commands respectively, designating therein the numbers of each division, brigade and regi- ment, 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 this State, and to the General Assembly ; and he shall from time to time make report to the legislature 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. 40. If no immediate opportunity offers for forwarding orders or in certain returns, the certainty of which ensures a speedy delivery thereof, cases returns which can be easily ascertained and proved, then it shall be the and orders is- dutv of the officer issuing the order or making the return (as the T^"^ ^^I°^M^ J o II- 1-1 the post oflice. case may be) to lodge the same, properly directed, m 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 sufficient and good in law. 41. The governor for the time being is hereby authorized to^^?™"^™^^^ mitigate or remit all fines and penalties, which may be recovered in penalties, any of the courts of justice against any general or field officer, arising under the militia laws of this State. 42. There shall be, in each brigade of militia in this State, one Regiments of regiment of cavalry ; there shall be to each regiment of cavalry one be^formed ^^ colonel, one lieutenant colonel, and one major, to be appointed, in officered, case of vacancy, by joint vote of both houses of the General As- ^l^'PP®'^' ^^-. sembly, and commissioned by the governor for the time being ;-, and out of the militia, enrolled in this State, there may be formed, out of each battalion that has a separate muster, at least one troop, of cavalry, to be formed of volunteers, which shall be 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 battahon to which they belong ; to each troop one captain, two lieutenants, one cornet, four sergeants, four corporals, one saddler, one farrier, one trumpeter, and no less than twenty four dragoons. The commissioned officers to furnish 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 which shall be 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, bri- die, breastplate, cruppers 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 pis- tols ; 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 cavalry one adjutant, one quarter master, one pay master, one surgeon, and 40. 1813, c. 850, s. 3. 41. 1813, c. 850, s. 6. 42. 1806, c. 709, s. 1, 7 and 12.— 1524, (bound up with the acts of 1826, p. 24.) VOL. I. 52 410 MILITIA. [Chap. LXXIII. Troops of cav- alry, when to muster, how re turns to be made — and who to com- mand when musterin infantry. one surgeon's mate, each of the rank of heutenant, to be appointed by the commanding officer of each regiment ; the commissioned officers of troops of cavalry shall be recommended by the field officers of the regiment to which they belong, and commissioned by the governor for the time being ; 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 commissions, 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. Each troop of cavalry shall muster at least once in every three months, at such time and place as the captain or commanding officer of such troop shall direct, and it shall be the duty of the cap- tain to make a true return of his troop to the conamanding officer of the regiment to which he may belong, on or before the first day of fl^fantrv"^ ^^^^ September in each and every year, under the penalty of thirty dol- lars for each neglect. The troops of cavalry, when attending the general muster of the regiment or battalion of infantry, shall be un- der the command of any field officer of the cavalry, if present on pamde, except on review days, when ordered by the major gene- rali, 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 officers of the cavalry only, except a general officer shall be present on parade. 44. It shall be the duty of the field officers of cavalry, once in every two years, to review the troops of cavalry, composing their regiments, at some place most convenient in the brigade, to be designated by a majority of the commissioned officers of the regi- ment, at such time as the commanding officer of the regiment shall appoint, of which at least thirty days' notice shall be given to the commanding officers of the several troops. The commanding officer of each regiment of cavalry shall, once in every year, on or before the first day of October, make a just and full return, after the form prescribed by the adjutant general, of all officers and dragoons under his command, and their equipments, to the briga- dier general to whose brigade the said regiment belongs, and shall also transmit to the adjutant general, on or before the fifteenth day of November in each and every year, a duplicate of such returns, and at the bottom of the same shall state when his regiment or the several troops composing it, were last reviewed by the brigadier and major generals. 45. A majority of the commissioned officers of each troop, and a majority of the commissioned officers of each regiment, immedi- ately after their respective troop or regimental musters, shall hold troop or regimental courts martial, in the same manner, and the courts shall have the same power, duties and authorities, and shall be governed by the same rules and regulations, as the company or Field officers of cavalry to review and make returns Cavalry courts martial to be held. 43. 1306, c. 709, s. 4. 44. 1332, c. 5, s. 9. 45. 180G, c. 709, s. 6. Chap. LXXIIL] militia. 41 J 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 heai'd, 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 succeeding regimei^tal 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-commissioned officers and Fines of cav- privates of the troops and regiments of cavalry, for not holding anJ privates musters, not attending musters, parades and reviews, or not being same as in the armed and equipped as required by law, shall be the same as herein ^'^ ^° "^^^ before prescribed for officers, non-commissioned officers and pri- vates of the infantry in similar cases. 47. AH fines and forfeitures, incurred by the cavalry officers o^^ l^eT t'cfbe^"^^ privates, and not herein particularly appropriated, shall be applied propriated. 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 staff officers and not particularly appropriated, shall be equally divided among the troops composing the regiment, to which they respec- tively belong ; all other fines and forfeitures shall be appropriated and divided, at the discretion of the regimental courts martial, for the promotion and advancement of military discipline. 48. It shall be the duty of the adjutant of the regiment to attend Ptant'of'fhe the regimental parade, and receive and execute such orders as the regiment, commanding 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 which are not otherwise espe- cially provided for in this act, and to receive and account for the same annually with the pay master of the regiment, for which ser- vices the adjutant shall be allowed a reasonable compensation, to be paid out of the fines so collected, by order of the court martial ; and in case any adjutant shall fail to attend and perform his duty as required by this act, he shall forfeit aiid pay the sum of one hun- dred dollars. 49. The following sections of this act in relation to the infantry, Certain sec- 1 i_ J 1 1 1 1 1 • 1 z' 1 tions 01 this are liereby declared to apply to the cavalry, to wit : so much ot the act to apply to eleventh, twelfth and thirtyeighth sections as relates to officers under ^^^ cavalry. the grade of brigadier general ; also the thirteenth, fourteenth, twentyfifth, twentysixth, twentyseventh, twentyeighth, thirtieth, thirtyfirst, thirtyfourth, thirtyninth, fortieth and fortyfirst sections. 50. No person shall be commissioned in any troop of cavalry. Provision when unless the number is such as shall be prescribed by this act, and the cavalry when from default of numbers or otherwise, a troop shall no longer Jroop shall be ' ' " less than re- quired by law. 46. 1306, c. 709, s. 13, amended 47. 1306, c. 709, s. 17. 48. 1806, c. 709, s. 9. 49. 1805, c. 709, s. 11. 50. 1823, c. 1216, s. 4. 41?- MILITIA. [Chap. LXXIII. be entitled to muster as cavalry, it shall be the duty of the captain of infantry, in whose company district the members of such troop shall reside, to cause them to be enrolled in their respective com- panies. Volunteer 51. Out of the militia of this State there maybe enrolled as artiServ'^lia'ht '^^^"J volunteer companies of artillery, light infantry, grenadiers or infantry,' gren- riflemen, as may see fit to form themselves into such, each com- men'^mav"e ' P^'^X t° consist of fortyfour privates, four sergeants, four corporals, formed. one Captain and three lieutenants. May choose 52. The said companies shall be clothed in regimentals, to be their own furnished by themselves, of their own choice and fashion, and shall To be under attend battalion and regimental reviews, parades and drills, when- the command of ever Ordered by the colonel of the county or commanding officer ine oXS'^o/' °^ ^^^ regiment, to which they respectively belong ; shall be sub- the regiment, ject to his Orders, and liable to the same fines and penalties for the as other com-^ uon-performance of military duty, misdemeanors in office, or dere- panies. liction of duty, as the militia of this State now are or may hereafter be subjected to by law. A regiment of 53^ Whenever there may be a sufficient^ number of volunteer volunteer com- .. i-i-i-ci r panics may be Companies, m any one brigade in this otate, to lorm a regiment, tormed. containing as many companies as five, the commissioned officers of such companies may meet together, at such time and place as how chose"^' ^ majority of them may designate, and proceed to elect (a majority of said commissioned officers being present) a colonel, lieutenant colonel and major, the result of said election to be certified by the senior officer present at said meeting, (who shall also preside thereat,) to the brigadier general of said brigade, whose duty it shall be to lay said result before the governor, who shall forthwith issue commissions to the said officers. How captains, 54, Th^ Captains and lieutenants of said companies shall be non-commL^" elected by a majority of the members of their respective com- sioned officers panies, and the non-commissioned officers of said companies shall or appointed.^ ^^ appointed by the commissioned officers thereof. Company to 55. The captain or commanding officer of each company of muster once in artillery, light infantry, grenadiers or riflemen, shall, at least once May adopt in three months, muster their men at such time as such captain rules and reg- ^^j (Jirect, and at such place as may be agreed on by a majority their own gov- of the Company, and each of said companies may adopt rules and ernment. regulations for their own government, not inconsistent with the laws and constitution of this State and of the United States. Officers of vol- gg Whenever a regiment of volunteers shall be formed and ments to make officered, as herein before required, it shall be their duty to make returns. annual returns to the brigadier general and adjutant general, as is or may be required to be made by the field officers of infantry or militia. Persons en- 57. No person, who now is, or shall hereafter procure himself rolled in volun- *■ , 51. 1806, c. 710, amended. 52. 1806, c. 710, amended. ^3. 1806, c. 710, and 1829, c. 3, amended. 54. 1806, c. 710, amended. 65. 1806, c. 710, amended. 56. 1806, c. 710, and 1829, c 3, amended. 87. 1806, c. 710, amended. Chap. LXXIIL] militia. 413 to be, enrolled in any company of artillery, light infantry, grenadiers teer companies or riflemen, or in any volunteer company, shall be permitted to "^e infamry"ex° return to the infantry, except by the consent of the field officers of cept hy permis- the regiment, or by removal out'of the county, regiment or bat- ^^°"' ^' talion, wherein such person was enrolled, and it shall be sufficient for any person to be enrolled and approved by the captain of said volunteer company, without the intervention of any other officer : Provided^ nevertheless^ that any person, enrolhng himself with any Volunteers captain of a volunteer company, shall be subject to perform all the !'°""'l to serve 1 • 1 • • 1 • r 1 J 1 ai 1 ^ in the infantry duties and exercises m theiniantry, and under the officers thereoi, until they equip until such person so enrolling himself shall fully and completely themselves. equip himself with clothing and arms, required and settled on for such company, and a certificate to that effect procured from the captain, with whom he has enrolled, and produced to the captain, under whom such person so served before such enrolment, or his successor in office. 58. Whenever there may be formed a regiment of volunteers. Officers of vol- as herein before provided, it shall be the duty of the commanding ^'^ents[o^r^e- officer of such regiment to review his regiment, as often as the '^iew. colonel or commanding officers of infantry may be required to do by law. 59. Whenever a vacancy shall occur by death, resignation, or^owvacan- otherwise, among the field officers of said regiment, it shall be the field officers of duty of the officer highest in command to notify the brigadier gen- volunteer regi- eral thereof, whose duty it shall be to call the commissioned filled. " officers of said regiment 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 attend thereto, and transmit to him the returns of said election ; and it shall be the duty of said general to transmit the result of said election to the governor, who shall forthwith commission the officer or officers so elected. 60. Each and every section of this act relative to the infantry, Certain sec- . • ^ tlOIlS 01 tills which can be applied to the government and disciplining of the act, relative to artillery, light infantry, grenadiers or riflemen, or which can by ^'^^ j'"^^"*Ty' ^° construction be apphed to them or either of them, is hereby artillery, &c. declared to be in force for the government and disciplining of the artillery, light infantry, grenadiers and riflemen respectively. 61. The governor or commander in chief shall appoint general General courts courts martial for the trial of major generals ; major generals, each ™'^,^g^^' ^°^_ within his own division, shall appoint division courts martial for ed and held.. the trial of brigadier generals ; brigadier generals, each within his own brigade, shall appoint brigade courts martial for the trial of all officers above the grade of captain ; and in like manner the colonel or commandant of each regiment or battahon, shall appoint regi- mental or battalion courts martial, for the trial of all commissioned 58. 1806, c. 710, and 1829, c. 3, amended. 59. 1806, c. 710, amended. 60. 1813, c 850, s. II. 61. 1817, c. 955, s. 1. 414 MILITIA. [Chap. LXXIII. Officers of general courts martial, how to be selected. Of what rank the officers shall be. Officers for courts martial to be regularly detailed. How to be de- tailed. officers, under the grade of a field officer ; in every case the offi- cer ordering the court martial shall cause the officer accused to be arrested, to be furnished with a copy of the charges against him, and to be notified of the time and place appointed for his trial. 62. When a court martial is ordered, the officer ordering it shall appoint the president, judge advocate, and provost marshal, and, if it be a general court martial, orders shall be issued to such divisions, as in the opinion of the governor or commander in chief 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 fur- nish 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 mem- bers of it ; if it be a regimental court martial, the officer ordering it may and shall appoint the members. 63. The president of a general court martial shall not be under the rank of a major general, and the court shall be composed of two brigadier generals and ten field officers, as members, six of whom shall be of different divisions ; the president 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 mem- bers, six of whom shall be of a diiFerent brigade ; the president of a brigade court martial shall not be under the rank of a colonel, and the court shall be composed of twelve officers, as members, to be taken from the brigade, 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 composed of a majority of the officers of the regiment, as members. 64. Whenever the commanding officer of a division, brigade, regiment or battalion, shall be ordered to furnish any officer or officers, as a members or members, supernumerary or supernume- raries, of a coiu't martial, such officer or officers shall be regularly detailed from the roster of the division, brigade, regiment or bat- talion, 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 officer shall certify such circumstance to the officer who ordered the court martial, and detail the officer next in succession. 65. Officers, ordered to be detailed to serve on courts martial, shall be detailed in the following manner : — Brigadier generals by the major generals of division from the division rosters ; colonels, lieutenant colonels and majors by the commanding officers of brig- ades from the brigade rosters ; captains and subalterns by the com- manding officers of regiments and battalions from the regimental or battalion rosters. 62. 181 7, c. 955, s. 2. 63. 1817, c. 955, s. S. 64. 1817, C 955, s. 4. 65. 1817, c. 955, s. 5. Chap. LXXIII.] militia. , 415 66. All courts martial for the trial of officers shall be constituted Courts martial, of a president, judge advocate and provost marshal, together vvith g^^^mg*^"' the number of members prescribed by the provisions of this act, and the officer ordering a court martial shall and may, at his dis- cretion, order a number of officers to be detailed, as supernumera- ries, in addition to those intended to serve as members, to attend the organization thereof, and, in case there should be any vacancy or vacancies, the judge advocate shall fill such vacancy or vacancies from the supernumeraries, beginning with the highest in grade and proceeding in regular rotation. 67. All officers on a court martial shall take rank by seniority ^^^^'^'^^^"^j^^ of commission without regard to corps ; and before any court mar- how to take tial shall proceed to the trial of any officer, the judge advocate ™"^7h^° ""^^'^ shall administer to the president and each of the members the fol- lowing oath: "You, A. B., do swear that you will w-ell and truly try and determine, according to the evidence, the matter now be- fore 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 partiahty, favor or affection ; and you 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 mem- ber of the court, unless 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 faith- fully and impartially discharge the duty of judge advocate on this occasion, as well to the State as to the 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 a 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." 68. The judge advocate of any court martial, constituted accord- ll°^l ^mmon^-' ing to the provisions of this act, shall and may issue a summons, in ed. 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 dol- lars, to be recovered by the party aggrieved in an action of debt before a justice of the peace, unless the witness can prove his ina- bility to attend. 69. All witnesses shall be sworn or affirmed by the judge advo- ^|^°^^i'j^^° ^*^ cate, before they give their evidence, as in criminal cases, accord- ing to the following form. "You A. B. do swear (or affirm, as the case may be) 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." 66. 1817, c. 955, s. 6. 67. 1817, c. 955, S. 7. 68. 1817, c. 955, s. 8. 69. 1817, c. 955, s. 9. advocate. 416 MILITIA. [Chap. LXXIII. Rules for the 70. All trials by court martial shall be carried on In the day lourtTmartiaL time, between the hours of ten 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 appointed in pursuance of the mili- tary laws of this State, shall have full power and authority to pre- serve order during their session, and may imprison in the county jail, for the space of eight hours, any and all persons, who shall in the presence of the court martial behave in a disorderly and con- temptuous manner. Dutyof jud^e 71. It shall be the duty of the judge advocate, upon all trials, to state impartially to the court the evidence, both for and against the accused, to take in writing the evidence both for and against the accused, and to minute down the proceedings of the court, all of which, with the judgment or sentence of the court thereupon, 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 WTiting, and the statement of the complaint 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 pro- ceedings ; and all the original proceedings and judgment or sen- tence of all courts martial, appointed according to the provisions of this act, after having been approved or disapproved by the offi- cer ordering them, shall by him, as soon thereafter as convenient, be transmitted to the adjutant general of the State, to be deposited and preserved in his office ; and the party tried by any court mar- tial, as aforesaid, upon request by himself, or by any person prop- erly authorized, at the adjutant general's office, shall be entitled to a copy of the original record, certified as aforesaid, of the pro- ceedings and sentence of the court, he paying reasonably for the same. -, ,. 72. When any officer shall be arrested and notified to attend any Proceedings , •^. , •' against officers court martial, which may be ordered for his trial, and shall refuse arrested and q^. neglect to attend the same, the said court shall take up the refusing to at- = -r • n i • i • ■ i i i i tend. charges and specmcations alleged agamst hmi, provided he has been served with a copy thereof, and proceed to trial in the same manner as if he were present. Perjury before 73. If any person shall wickedly, wilfully and corruptly swear courts martial, fgjgyiy before any court martial, touching and concerning any mat- ter or thing cognizable before such court mai'tial, he shall, on con- 70. 1817, C. 95.5, S. 10. 71. 1817, c. 955, S. 11. 72. 1817, c. 955, S. 12. 73. 1312, c. 823, s 3. Chap. LXXIIL] militia. 417 viction thereof, be liable to the pains and penalties of perjury, and in all cases, to delinquents and witnesses, oaths and affirmations shall be administered by the judge advocate or presiding officer of said court martial. 74. Dishonest or ungentlemanly conduct in an officer shall be t^or what con- punished by cashiering, and disabling him from ever holding a niili- g^e^ ^^v be tary commission in this State. cashiered. 75. Upon any requisition by the United States for a detachment Detachments of of the militia from this State, it shall be the duty of every captain united States of infantry to enter upon his roll all able bodied free white men, service. between the ages of eighteen and fortyfive years, except such as are exempted by the second section of the act of congress of one thousand seven hundred and ninetytwo, 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 are here- by declared to be subject to draft : Provided, that nothing in this act shall be understood to subject persons, heretofore exempted, to perform ordinary militia duty : Jlnd provided further, nothing herein contained shall be construed to conffict with the provisions of the third section of this act. 76. It shall be the duty of each captain or commanding officer Substitutes of a company of militia, detached as part of the requisition under ^^J^^j^ "^^^ the authority of the United States, to receive and enrol 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 person so drafted. 77. If any commissioned officer, under the grade of a field offi- Vacancies cer, appointed to command in any detachment from this State, of field officers under the authority of the United States, shall die, resign or re-i^'^etachments, move out of the regiment to which he belongs or may belong, itpiie^d.° ^ ^^^' shall be the duty of the colonel commandant of the regiment, to which such officer belonged, to recommend a proper person, resi- dent within the bounds of such regiment, to be commissioned by the governor to fill such vacancy. 78. In all cases where a militia man shall have performed a term A militia man, of service, either as a volunteer or drafted militiaman, whether f,, ^e 'exempt ' upon the requisition of the United States or of this State, he shall from a second not be liable to stand a second draft, until the whole of the militia ^^ '" within his company district shall have performed a like term of duty. 79. When militia men are ordered out on duty in aid of the civil Penalty for re- authority, either to guard a jail or for any other purpose, and shall ne- for^ dij°v^^'' gleet or refuse to attend, agreeably to orders, each man shall be fined, when ordered at the discretion of his company court martial, not exceeding five °u[i|jfi.ity^ "^^^ dollars for each day he shall fail to do duty. 80. In all cases of insurrection among slaves or free persons of Seven justices may call out 74. 1803, c. 749, s. 1. 75. 1814, c- 867, s. 3. 76. 1S12, c. 828, s. 8. 77. 1812, c. 828, s. 9. 78. 1814, C. 867, S. i. 79. 1822, c. 1167, s. 2. 80. 1831, c. 32, s. 1. VOL. I. 53 418 MILITIA. [Chap. LXXIII. the militia in case of inva- sion or insur- rection. \y Duty of the commanding officer on such requisition. Commanding officer called out, to notify his superior of- ficer. Superior officer to notify the governor. Three justices may order out the militia to suppress out- lawed or run- away slaves. Pay of the militia when in color, either in any county of tiiis State, or in an adjoining State, or in case of invasion, seven justices of the peace, deeming the emergency to require it, may, at their discretion^ require in writing of the commanding officer or officers of their county to call out the militia under his command, and any volunteer company or compa- nies in said county, in the absence of the officer who is entitled to the command, to suppress or repel such insurrection or in- vasion, or to protect the inhabitants of their county from the dan- ger to be apprehended, and may again require of the said officer to dismiss his men when they think the danger is over, and the com- manding officer may dismiss in like manner. 81. It shairbe the duty of the commanding officer forthwith to order out the militia, in the way he shall judge best to effect the purpose desired ; he may make such contracts, as he may think most to the interest of the State, for the requisite ammunition, and 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 is hereby em- powered to dispose of any surplus ammunition or provisions, for the benefit of the State; and all expenses hereby incurred shall be properly certified by said oificer and forwarded to the governor, and shall be paid by the State after undergoing an examination, and approval by the governor, treasurer and comptroller, who are hereby created a board for that purpose.. 82. The commanding officer of any regiment, as soon as he has called out the militia under the provisions of the eightyfirst section of this act, shall immediately send an express to the briga- dier or major general of his brigade or division, informing 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 ma- jor general shall immediately apprise the governor, cither by ex- press or mail, as he may judge the emergency requires, of all the circumstances ; in the mean time such general officer shall pursue the most effectual measures for repelling such invasion, or suppress- ing such insurrection, and the militia thus called out shall be armed according to law. 83. When there may be outlawed or runaway negroes, com- mitting depredations, or in any way alarming the citizens of any county, or where the guarding of a jail is necessary, three justices of the peace, certifying the same in writing and requesting the offi- cer in command of their county, he is hereby required to effect the object set forth in said request of the justices, and the ex- penses of said militia so called out, shall be paid by the court of the county, who are hereby authorized to lay a sufficient tax to pay said militia, at the same rates as the regular troops of the United States are by law now entitled to, when in actual service. 84. The militia of this State, both officers and soldiers, when called into the service of the State, shall receive the same pay and rations as when called into the service of the United States. 81. 1831, c. 32, s. 2. 82. 1831, c. 32, s. 3. 83. 1831, c. 32, s. 4. 84. 1313, c. 850, s. 5. Chap. LXXIIL] militia. 419 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 by appear"on"can his commanding officer, shall, on conviction before a court martial, or alarm given- be cashiered and rendered incapable of ever after holding a military appointment under the authority of this State, and be further liable to pay the sum of forty dollars, to be collected, as herein directed ; and if a non-commissioned officer or private, he shall forfeit and pay the sum often dollars. If any person do not march against the enemy, when commanded, by himself or substitute, or refuse or neglect to do his duty or perform the services he is requested to perform by his officer, or quit his post, desert or mutiny, it shall and may be lawful for the commanding officer of the regiment or corps to order a court martial for the trial of such offender ; 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 shall, on trial and conviction, order punishment on, the offender, according to the articles of war established 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., 86. If any non-commissioned officer or private mihiia man, Punishment for while in the pay and service of this State, shall wilfully desert the *^^*'^'''^^°'^- service or abandon the post assigned to him, without being regularly dischai'ged, or permitted by an officer duly authorized for that pur- pose, such non-commissioned officer or private, so deserting or abandoning his post, and being thereof convicted by a court martial having jurisdiction of the offence, shall be adjudged to have for- feited the pay and emoluments, due to him at the time of hi;? deser- tion, and be subject to a fine not less than twenty and not exceeding 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 ex- ceeding double the term of time, which he had been called out to serve in the militia of this State. 87. All acts, heretofore passed on the subject of the militia, are Repealing hereby repealed : Provided^ that this act shall not extend to military clause, appointments made by recommendation to the present legislature : And provided, that nothing herein contained shall be construed to repeal any private act of the General Assembly, incorporating, granting privileges to, or regulating particular corps, whether of the volunteers or of the ordinary militia. 88. It shall be the duty of the adjutant general to have copies Adjutant gen- of this act printed and distributed, one copy to each general offi- ^op^^g" ^f^{]®jg cer, one copy to each field officer, and two copies to each com- act printed and pany — to be distributed, as is provided for the distribution of the 'Jis^ributed. acts of the General Assembly. 89. This act shall be in force from and after its passage. to beln for^e.^ 85. 1306, c. 708, s. 20. 85. lS13,c. 850, s. 12. S7. Amendment. 88. Amendment- 89. Amendment 420 MILLS AND MILLERS. [ChAP. LXXIV. CHAPTER 74. MIL.1-S ANB MIL-LERS. AN ACT CONCERNING MILLS AND MILLERS. 4. Section 1. What shall be public mills. 2. Persons wishing to build public mills, how to proceed when they own land only on one side of the stream. 3. Persons obtaining an order to build a mill, how to obtain a title to the land on which it is built. When an order for one mill is grant- ed, another shall not be granted within two miles on the same tract of land — Not to overflow another, or create a nuisance. Within what time the mill is to be commenced and finished. What time infants, &c. may have for rebuilding mills burnt or destroyed. Millers shall grind according to turn — What toll they may take. What measures millers shall keep in their mills — Keeping false mea- sures indictable. Persons injured by the erection of mills, how to proceed to recover damages. When notice is served upon the ten- ant in possession, instead of the owner, how such tenant is to pro- ceed. 9. 10. 12. 13. Section 11. If the tenant fail to file an affidavit, he is to be taken as owner. When the owner appears, he is, upon giving bond, to be admitted co- defendant with the tenant. Upon the hearing of the petition, what proceedings are to be had for the purpose of having the damages assessed, the verdict of the jury re- turned, and how long such verdict shall be in force. Provision in cases where the deima- ges are assessed as high as twenty dollars. Provision as to costs where the ver- dict is that there is no damage, or where the damages are under five dollars — How execution shall issue against the defendant for damages. What pay the sherilT and jurors shall be entitled to. Upon appeals, the trial to be had at bar in the superior court — Plaintiff" to pay costs if he appeals and fails to recover higher damages. Keepers of public mills exempt from serving on juries or working on roads. 14. 15. 16. 17. 18. What shall be public mills. Persons wish- ing to build public mills, how to proceed, when they own land only on one side of the stream. 1. Be it enacted by the General Assembly of the State of JYorth Carolina, and it is hereby enacted by the authority of the same, That every water grist mill or windmill, already built or which shall hereafter be built, that hath or shall at any time grind for toll, shall be held and deemed, and is hereby declared to be, a public mill. 2. Any person, willing to build such mill, who hath land only on one side of a run, shall exhibit his petition to the county court, and therein shew who is the proprietor on the opposite side of the run, whereupon a summons shall issue to such proprietor to appear at the next court and answer the allegations of such petition, and the court also at the same time shall order four freeholders to lay off, 1- 1777, c. 122, s. 1. 2. 1777, c. 122, s. 2.— 1S36, amended. Chap. LXXIV.] mills and millers. 421 view and value on oath, to be administered by the sheriff, or any justice of the peace, an acre of the land of such proprietor, and also an acre of the land of the petitioner opposite thereto, and to report their opinion and proceedings thereon to the next court ; and thereupon the court shall order the said report to be recorded, and, if it take not away houses, orchards, gardens or other imme- diate conveniences, shall and may, and are hereby empowered and authorized to grant leave to the petitioner, or such proprietor, to erect such mill at the place proposed, as in their discretion shall seem reasonable, and to order the costs of such petition to be paid by the person to whom such leave shall be granted. 3. The person, to whom such leave is granted, shall pay down Persons ob- in court for the acre of land he shall obtain thereby, the valuation order"foTuild a monevi and procure a record to be made thereof, which shall be a "^ii^' how to ob- • • • • . tEiin a. title to good and effectual seizin in law to create to such person, his heirs the land on and assigns, a fee simple in such acre of land. which it is 4. Where any grist mill shall have been erected by order of ^^, " , court, it shall not be lawful for any court, on the petition of any for one mill is person whatever, to grant any part of the tract, whereon such "^iH fnother'shall stands, for the purpose of building another mill, within two miles not be granted above or below the mill already erected. And it shall not be law- within two r 1 r 1 -11 miles, &c. lul tor any court to grant leave to any person to erect a mill, so as Not to overflow to overflow any other mill, or create a nuisance to the neighbor- ^"°^'^*^''' ■'"" "®' , , "^ ° ^te a nuisance. hood. 5. The person so being seized shall, within one year, begin to within what build a water mill, and finish the same within three years, and shall t™fe*com^^'^ ^^ thereafter keep up the same, for the use and ease of all such as shall menced and be customers to it, otherwise the said land shall return to the person fi'^^^ed. from whom it was taken, or to such other person as shall have his right, unless the time for finishing the same, for reasons shown to and approved of by the court, be enlarged. 6. If any water mill, belonging to any person within the age ofyvhattime twentyone years, feme covert, non compos mentis, or imprisoned, maThav^^r be let fall, burnt, or otherwise destroyed, then such person or rebuilding mills persons, and their heirs, shall have three years to rebuild and st'rOTed"^^ ^'^' repair such mill, after his or their full age, discoverture, coming of sound mind, or enlargement out of prison. 7. All millers shall grind according to turn, and shall well and Millers shall sufficiently grind the grain brought to their mills, if the water will i^nTfo^tum'^'*" permit, and shall take no more toll for grinding than one eighth part What toll thej of the Indian corn and wheat, and one fourteenth part for chopping ™^^ ^'^'^''- grain of any kind ; and every miller and keeper of a mill, making default therein, viz : not grinding according to turn, nor well and sufficiently grinding the grain, if the water will permit as aforesaid, or exacting and taking more toll than herein is set down and allowed, shall, for every such offence, forfeit and pay five dollars to the party injured, to be recovered before any justice of the 3. 1777, c. 122, S. 3. 4. 1777, c. 122, s. 4 and 5- 5. 1777, c. 122, s. 6. 6. 1777, c. 122, s. 7. 7. 1777, c. 122, s. 10.-1793, c. 402. 422 MILLS AND MILLERS. [ChAP. LXXIV. county, wherein such offence is committed, with costs : Provided nevertheless, that it shall be in the power of any such owner to grind or cause to be ground his own grain, at any time he thinks fit. What measures 8. All millers shall keep in their mills the following measures, keepin\heir '^^^ • ^ half bushel and peck, at full measure, and also proper toll mills. dishes for each measure, and every owner by himself, servant or Keepmg false gjave, keeping any mill, who shall keep any false toll dishes, con- dictalile. trary to the true intent and meaning of this act, shah be indicted, and, on conviction, shall be fined or imprisoned, or both fined and imprisoned, at the discretion of the court. Persons in- Q. Any person, who may conceive himself injured by the erec- erection of tion of any public grist mill, or mills for domestic manufactures or ™lis^o'^ to other useful purposes, and be desirous of recovering damages from cover damages, the owner or proprietor of any such mill, shall apply by petition to the court of pleas and quarter sessions of the county, in which the land, to which the damage is done, is situate, setting forth in such petition in what respect he is injured by the erection of said mill, having first given to the owner or owners, or to the tenant or tenants in possession of said mill, ten days previous notice in writing, of his intention to file said petition, and a copy of such notice, returned by the sheriff executed, shall be evidence of such service. When notice jQ. When such notice shall have been served upon any tenant IS served upon . . ^ -n • i /■ i i r the tenant in or tenants m possession of any mill, instead oi the owners thereof, possession, m- gygh tenant or tenants shall file in court an affidavit, settina; forth owner, how the name of the real owner or owners of the mill or mills, whereof such tenant ^6 or they are tenants, and upon filing such affidavit, the court IS to proceed. i n i r i • • i i i shall order a copy of such petition to be served on such owner or owners, if he, she or they reside in this State, and if not in this State, the court shall order publication to be made for six weeks in some newspaper in this State, notifying such owner or owners to appear, and plead, answer, or demur, or judgment will be entered against him, her or them at the next court. If the tenant n. If such tenant or tenants, as aforesaid, shall fail to file such affida°vit,he'is affidavit, he or they shall be taken and deemed the owner or to be taken as owners of such mill, and the court shall hear the petition, and order a writ to be issued, in the same manner as if such tenant or tenants was or were the real owner or owners as hereinafter directed, and in case of judgment for the petitioner or petitioners, be, she or they shall recover all costs, and it shall be lawful for the petitioner to take out execution, and sell said mill and appur- tenances, and the property of the tenant or tenants, and the property of the owner or owners thereof, or a sufficiency to pay all costs and the judgment. When the own- 12. If the person or persons, set forth as owner or owners of fs up^T^Vi^n^ such mill, in the affidavit of such tenant or tenants as aforesaid, bond, to he ad- shall appear at the next court and apply to be made parties to the ffendant'^wi'th' petition, it shall and may be lawful for the court to cause him, her the tenant. , , S. 1777, c. 122, s. 11, amended. 9. 1509, c. 773, s. 1. — 1513, c. 863, s. 1.— 1833. c. 6, s. 1. 10. 1833, c. 6, S. 2. 11. 1S33, c. 6, s. 3 and 5. 12. 1S33, c. C, s. 4. Chap. LXXIV.] mills and millers. 423 or them to be made defendants, upon his, her or their entering into bond, in such sum as the court may require, payable to the pe- titioner or petitioners, conditioned as other bonds given by defend- ants in civil actions ; and then the petition shall stand against the tenant or tenants, so notified as aforesaid, and the owner or owners, so made parties defendant as aforesaid, and in that case .the sheriff shall give written notices, five days previous to his going with the jury on the premises as hereinafter directed, to the tenant or tenants in possession of said mill, and no notice to the owner or owners shall be necessary. 13. Upon the hearing of any petition, filed as above directed. Upon the hear- it shall be the duty of the court to order a writ to be issued to the 1"?^°*^^^^ Pp^'^, sheriff of their county, commanding him to summon a jury of ceedings are to twentyfour freeholders, unconnected with the parties by consan- ^^^.p^g/^f J^^^- guinity or affinity, and entirely disinterested, no one of whom shall mg the dam- be the owner or part owner of any public mill, or mills for domestic ^^e verdfct^of' manufactures or other useful purposes, to meet on the premises, the jury re- on a certain day, of which he shall give each party five days pre- [^"^^^^'^^"gugjj vious notice in writing, and it shall be the duty of the jury, formed verdict shall be by drawing twelve out of twentyfour summoned as aforesaid, (in^"^ °'^^^' the doing which each party may challenge either peremptorily, or for cause, as in other civil cases,) after appearing at the place and on the day appointed, and having taken an oath, (which the sheriff or deputy is hereby authorized to administer,) that they will well and truly inquire whether any damage hath been sustained by the petitioner, by reason of the erection of the mill complained of, and if in their opinion any hath been sustained, that they will im- partially, according to the best of their judgment and ability, assess the amount, which said petitioner ought annually to receive from the owner, proprietor or tenant of said mill on account thereof; they shall proceed to view and examine the premises, and to hear all the evidence which may be produced 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 compensa- tion for the damage he sustains, by reason of the erection of the mill complained of, reduce the same to writing, sign their names thereto and deliver it to the sheriff, sealed up, to be delivered to the court from whence the writ issued, at the next ensuing term ; which verdict shall be binding between the parties for the term of five years, unless the damages should be increased by raising the water or otherwise, if said mills are kept up, from the filing of the petition, unless appealed from by either of them. 14. In all cases where the jury shall assess the yearly damage Provision m . • • C3.SPS wiicrG as high as the sum of twenty dollars, nothing contained in this act the damages shall be so construed as to prevent the person so injured, his heirs are assessed as or assigns, from suing as heretofore usual in such cases ; and m dollars. such cases, the verdict of the jury on the premises, and the judg- ment thereon, shall only be binding for the year's damage prece- ding the filing of the petition. 13. 1809, c. 773, s. 1 — 1813; c. 8G3, 6. 3. 14. 1809, c. 773. s. 5. 424 MILLS AND MILLERS. [ClIAP. LXXIV. Provision as to costs where the verdict is that there is no damage, or where the damages are under five dol- lars. How execution shall issue against the defendant for the damages. What pay the sheriff and ju- rors shall be entitled to. Upon appeals, the trial to be had at bar in the superior court. Plaintiif to pay costs if he ap- peals and fails to recover, &c. Keepers of public mills ex- empt from serving on ju- ries or working on roads. 15. If the verdict of the jury shall be that the petitioner hath sustained no damage, then he shall pay all the costs of his petition, and execution shall be issued therefor by the clerk of the court, but if in favor of the petitioner, shall be issued by the clerk against the defendant for the amount of one year's damage preceding the fihng of the petition and for all costs : Provided, that if the dam- age assessed do not amount to five dollars, the petitioner shall not recover more costs than damages ; and if the defendant do not an- nually pay up the petitioner, his heirs or assigns, before it falls due, the sum assessed by said verdict, as the damages to be paid annually, such petitioner, his heirs or assigns, shall be at hberty, annually during the five years, to apply to the clerk for an execu- tion against him, at the same term that the petition was filed, in each and every year, for the amount of the last year's damage, or any part thereof, which may remain unpaid. 16. The sheriff, for summoning each juror or witness, shall be entitled to twenty cents, and each juror to eighty cents per day, for attending on the premises, and four cents per mile for every mile they shall travel to and from the place of trial, an account of which they shall render on oath to the sheriff after the verdict is made up, to be returned therewith to the court, and the clerk shall receive the same fees as in other cases of petitions, where no copy is issued. 17. In all cases arising under this act, where either party shall appeal from the county to the superior court, the trial in the supe- rior court shall be had at bar : And if the plaintiff shall appeal, and fail to recover higher damages in the superior court than were awarded by the jury on the premises, he shall pay all the costs of his appeal. 18. All keepers of public mills shall be exempt from working on roads or serving on juries. 15. 1809, c. 773, s. 2.— 1833, c. 6, s. 6.— 1834, c. 20. 16. 1809, c. 773, s. 3. 17. 1813, c. 863, s. 2.— 1809, c. 773, s. 4. 18. 1S36, amendment. Note. — References to Adjudged Cases. Sect. 1. Eason vs. Perkins, 2 Dev. Eq. 33. Sect. 9. Mumford vs. Terry, 2 Car. Rep. 425. Purcell vs. McCallum, 1 Dev. and Rat. 221. Gillet rs. Jones, ib. 339. Sect. 14. Gillet vs. Jones, 1 Dev. and Bat. 339- Pugh vs. Wheeler, 2 Dev. and Bat. Chap. LXXV.] MINES. 425 CHAPTER 75. MINES. AN ACT CONCERNING IRON AND GOLD MINES. Section Three thousand acres of land granted for the use of iron works as a boun- ty — Entry taker to make out a copy of the bounty land, and transmit it to the county court. Court to appoint a jury to view the bounty lands — Jury to make their return, and the same to be recorded. Conditions to entitle the proprietors to the land granted. Section 4. Manner in which the grants are to be obtained— Proviso, the land to revert upon failure to erect the works. 5. Bounty lands to be exempt from taxes for ten years. 6. Lessors of gold mines not to be taken as partners with their les- sees, unless they so contract. 1. Be it enacted by the General Assembly of the State of J^orth Carolina^ and it is hereby enacted by the authority of the same, That three thousand acres of vacant land, not fit for cuhivation, acres^of land" most convenient to the different seats, is hereby granted for every granted for the set of iron works, as a bounty from this State, to any person or works as'a persons, who will build and carry on the same, to be under thel^ounty- I- 1 1 • 1 1 1 , ■ • 1 Entry taker to lollowmg rules and regulations, viz : where any person or persons make out a intend to build iron works, such person or persons may proceed to^opy of the the entry taker of the county where he intends to erect such works, and"transmit it and enter, in one or more tracts, the quantity of bounty land al- to the county lowed by this act for one set of works, and the entry taker is hereby required to make out a copy of the land entered as afore- said, and transmit the same to the next court that shall be held in the county in which he is entry taker. 2. The court of any county in this State, upon receiving the Court to ap- return of the entry taker for the land as aforesaid, shall appoint a view t^he"boun- jury consisting of twelve persons, who shall proceed to view the ty lands, land in their county entered as aforesaid, and if they shall adjudge the land so entered not fit for cultivation, they shall certify the Jury to make same in writing, and return the certificate to the next court held Jh^same'toTe'^ in their county, and the court upon receiving such return shall recorded. cause the certificate to be recorded by the clerk. 3. If any person or persons, who may enter land agreeably to Conditions to 1 . 1 11 • 1 • 1 • I r ^ r entitle the pro- this act, shall erect iron works within the term ol three years irom prietors to the the time of the jury's return, such person or persons, on making it ^and granted, appear to the court of the county that he or they have made at said works five thousand weight of iron, shall receive an order to the entry taker, requiring him to issue the warrants for the bounty lands. 1. 1783, c. 293, s. 1. 2. 1788, c. 293, s. 2. 3. 1783, c. 293, s. 3. VOL. I. 54 426 MONEY REMAINING, ETC. [ChAP. LXXVI. Proviso, the land to revert upon failure to erect the works. Manner in 4, Such entry taker, upon receiving such order, shall proceed grants are to be ^'O issue Warrants for the lands granted by this act, without receiv- obtained. ing any money for the State, and the surveyor, upon receiving such warrants, shall proceed to survey the same as soon as conve- nient, and make return to the secretary's office, that grants may issue for the same, and such grant or grants shall be as good and valid to the proprietors of such works, their heirs or assigns, as if the purchase money had been paid : Provided nevertheless, that if any person or persons shall enter land, in pursuance of this act, and fail to erect iron works according to the true meaning and intent thereof, the land so entered shall revert to the State, unless the person who has entered the same pays the purchase money for the use of the State. be°exem^Tfrom ^" "^^^ bounty lands granted by this act, shall be exempted from taxes for ten taxation for the term of ten years. years. ^ jy^ lessor or lessors of property, real or personal, for gold mines 'no" to°be i^fiining purposes, although such lessor or lessors may receive a taken as part- sum uncertain of the proceeds or net profits, or any other con- leTs'ees^ unles" sideration, which, though uncertain at first, may afterwards become they so con- certain, shall be held as a partner or partners of the lessee ; nor shall any of the legal or equitable relations or liabilities of co-part- ners exist between them, unless it be so stipulated in the contract between such lessors and lessees. tract. 4. 1788, c. 293, s. 4- 5. 1788, c. 293, s. 5. 6. 1830j c. 46. CHAPTER 76. MONEY REMAINING IN THE HANDS OF CLERKS, &€. AN ACT PRESCRIBING THE DISPOSITION OF MONEY REMAINING IN THE HANDS OF CLERKS AND SHERIFFS A CERTAIN TIME. Section 1. Clerks of the supreme, superior and county courts, and clerks and mas- ters in equity, to make statements and returns of all moneys remain- ing in their hands for three years. 2. To whom such moneys shall be paid over, subject to be reclaimed by the rightful owner. 3. Clerks, and clerks and masters, fail- ing to pay over such moneys, to for- feit one thousand dollars. 4. Clerks, and clerks and masters, failing to pay over moneys remaining in Section their hands, how to be proceeded against. 5. Sheriffs and coroners to pay costs on executions to the clerks. 6. Sheriffs to account and pay over moneys in their hands in the same manner as clerks, &c. 7. Clerks, &c. to set up a statement of their returns in the court house for six months before making such returns. 8. Penalty on clerks, &c. for failing to set up statements. CHA.r. LXXVI.] MONEY REMAINING, ETC. 427 1. Be it enacted by the General Assembly of the State of JSTortk CaroUnay and it is hereby enacted by the authority of the samCy . That it shall he the duty of each and every clerk of any county cjerks of the court, superior court of law, clerk and master in equity, and clerk supreme, su. of the supreme court within this State, at the first session of the co^ty wmrts court, of which he is clerk, which shall be after the first day of and clerks and August in each and every year, to produce to said court a statement, Multy'^o'make to be made on oath, of all moneys remaining in his hands, which statements and were received by him officially thi^ee years or more previous thereto, moneys *re-^ specifying therein the amount of each separate claim, and the name raining in of the person, to whom the same is payable : and if there be no j^r^ years* °^ such moneys in liis hands, he shall make affidavit of the same, which return or affidavit, if made by the clerk of the supreme court, the judges of the said court shall cause to be transmitted to the pubhc treasurer of this State ; or if made by a clerk of the county court, or a clerk of the superior court of law, or a clerk and master in equity, the judge or chairman of the court, before whom it is made, shall cause to be transmitted to the officer ap- pointed to receive and disburse the county funds, on or before the first day of December in the same year. 2. The clerk of the supreme court shall, on or before the first To whom such day of December, In each and every year, after the foregoing ^°p^y| ^^^^^ statements are made, account with and pay over to the public subject to be' treasurer, all the balances aforesaid, which shall be held by him in [he^j-™^tf i^ trust for the legal claimants, but^ whilst unapphed for, shall con- owner, stitute a part of the general fund ; and the clerks of the county and superior courts of law, and the clerks and masters in equity, shall, within the same time, account with and pay over all the bal- ances aforesaid, to the officer appointed to receive and disburse the county funds, whose duty it shall be to receive the same, and to hold it subject to the claims of the rightful owners, and:, until called for by such owners, to be used by them as other county funds. 3. Any clerk of the supreme court, faihng to comply with the Clerks, and duties required by this act, shall forfeit and pay to the State one niasters,\ilino- thousand dollars, to be sued for and recovered by the public trea- to pay over surer in the superior court of law of Wake county ; and be, more- forMt^one^^' ° over, liable to pay all such moneys, as he may be chargeable with thousand dol- under the provisions of this act ; and any clerk of the county or superior courts of law, or clerk and master in equity, failing as; aforesaid, shall forfeit and pay, to the use of the county wherein; he is clerk, or clerk and master, one thousand dollars, to be sued for and recovered by the proper county officer, in the superior court of law of his county, and be, moreover, liable to pay such moneys as he may be chargeable with, under the provisions of this act. 4. If any clerk, or clerk and master as aforesaid, shall fail to Clerks, and clerks and 1. 1823, c. 1186, s. 1.— 1831, c. 3, s. 1 and 3. 2. 1823, c. 1186, s. 2.— 1831, c. 3, s. 1 and 3. 3 1823, c. 1186, s. 3.— 1831, c. 3, s. 2. 4. 1823, c. use, s. 4.— 1831, c 3, s. 2. 428 MONEY REMAINING^ ETC. [ChAP. LXXVL masters, failing to pay over moneys re- maining in their hands, how to be pro- ceeded against. Sheriffs -and coroners to pay costs on execu- tions to the clerks- Sheriffs to ac- count and pay over moneys in their hands in the same man- ner as clerks, &c. Clerks, &c. to set up a statement of their returns in the court house for six months before making such returns. Penalty on clerks, &c. for failing to set up statements. pay any money, by him admitted to be due as aforesaid, on or be- fore the first day of December, in each and every year, &uch clerk or clerk and master, may be proceeded against by the public trea- surer, in any court of record in this State, or by the proper county officer in the courts of his own county, in the like manner as against defaulting revenue officers. 5. It shall be the duty of the sheriff and coroner of each county to pay the costs on all executions, v^hich shall be satisfied in the whole or in part, to the clerk of the court from which such execu- tion issued, and to no other person, on the second day of the term of such court ; and any sheriff, making default therein, shall be fined the sum of forty dollars, which fine shall be recovered in the name of the State, by scire facias, in the same manner as other fines, and, when collected, shall be paid into the office of said clerk for the purposes above directed. 6. All sheriffs now in office shall, at the same time prescribed in the first section of this act for clerks, render a like statement to the court of the county of which he is sheriff, and account with the officer, appointed to receive and disburse the county funds, for all balances in his hands, arising under the provisions of this act, in the same manner and under the same penalties as by this act is provided for clerks. 7. Each clerk and clerk and master of the several courts of law and equity, who is bound by the provisions of this act to make a return to the public treasurer, or to the officer appointed to receive and disburse the county funds, on oath, of all moneys remaining in his hands, and which were received by him officially, three years or more previous thereto, shall post up in the court house of his county, at least six months before he is, by the provisions of this act, bound to make his return, a list of all such moneys with the amount of each claim, and the name of the person to whom it is payable, that the person entitled may have an oj)portunity of apply- ing for the same, before it is paid into the public or the county treasury. 8. Any clerk or clerk and master, who shall fail to comply with the provisions of the last section, shall forfeit and pay the sum of twenty dollars, to be sued for and recovered before any justice of the peace of his county, one half to the use of the person suing for the same, and the other half to the use of the said county. 5. 1822, c. 1149, s. 1. C. 1823, c. 1186, s. 6.- 7. 1828, c.41,S. 1. 8. 1828, c. 41, S. 2- -1831, c. 3, s. 1 and 2. Chap. LXXVIIL] names. — notaries. 429 CHAPTER 77. NAMES. AN ACT EMPOWERING COURTS OF RECORD TO CHANGE NAMES. Section 1. Superior courts may, upon petition, change the name of any person de- siring it. Section 2. Repealing clause. 1. Be it enacted by the General Assembly of the State ofJ^orth Carolina, and it is hereby enacted by the authority of the same, That whenever any person shall be desh'ous to change his or her Superior courts name, it shall be lawful for him or her to file a petition in any su- J^.^^- "P°'i P^- . • 1 1 11 11 tition, change penor court, praymg that the same may be clone ; and thereupon the name of the court, at the same term of filing the petition, may decree for gi"Lr[^^°" ^^' the petitioner according to his prayer ; and the person, whose name is thus changed, may sue and be sued in his or her new name. 2. All laws and clauses of laws, coming within the meaning and Repealing purview of this act, shall be and the same are hereby repealed. CHAPTER 78. NOTARIES AN ACT PROVIDING FOR THE APPOINTMENT OF NOTARIES. Section 1. Governor to appoint one or more no- taries in each county— Notaries to take oaths. Section 2. Clerks, and clerks and masters, may act as notaries. 3. Fees of clerks, &c. when acting as notaries. 1. Be it enacted by the General Assembly of the State of J^orth Carolina, and it is hereby enacted by the authority of the same. That the governor for the time being may. from time to time at *3overnor to , . ,. ° . o J . !•/• 1 appomt one or his discretion, appomt one or more persons properly quahned, to more notaries act as notary or notaries in each and every county in this State, '" '^^^^ county. and the said notaries and every of them, shall take the oath ap- take oaths. 1. 1777, c. lis, s. 15. 430 OATHS. [Chap. LXXIX. Clerks, and clerks and masters, may pointed to be taken for the qualification of public ofScers, and also an oath of office, which oaths may be taken in, and administered by, the court of the county in which such notary shall reside. 2. It shall be lawful for each of the clerks of the courts of record in this State, and for the clerks and masters in equity, to act as act as notaries, notaries public, in their several counties, by virtue of their said offices of clerk and clerk and master, and they shall certify their acts as notaries public, whenever the same are to be used out of the county, under the seal of the court of which they may be clerks or clerks and masters. Fees of clerks, 3. The fees of clerks and clerks and masters, as notaries, shall iiigasnotaries.be the same as now fixed by law for the service of a notary pub- lic, and for services where the law fixes no fee, they shall not de- mand a larger fee than twenty cents for every ninety \vords. 2. 1833, c. 7, s. 1 and 2. 3. 1833, c. 7, s. 3. CHAPTER 79. OATHS. AN ACT CONCERNING OATHS. Section 3. 4. Oaths, how to be administered. A person conscientiously scrupulous of laying his hands on the Scrip- tures, to be sworn with an uplifted hand. Quakers, Moravians, Dunkards and Menonists to be affirmed — Their af- firmation to be received in all cases, civil and criminal. Oaths or affirmations to support the Constitution of the United States and of this State, to be taken by all officers. 5. Also an oath to support the constitu- tion of the United States. 6. Oath of the governor — 0/ the secre- tary of state — Of the public treasu- rer — Of the comptroller— Of a judge of the supreme court — Of a judge of the superior courts — Of the at- torney general and solicitors — Of a justice of the peace — Of the clerk of the supreme court — Of a clerk of the superior courts— Of clerk and master — Of a clerk of the county courts— Of a sheriff- Of a Section coroner — Of a county attorney — Of a constable — Of a county trustee — Of a register — Of a standard keep- er — Of a ranger — Of an entry taker — Of a county surveyor — Of a pro- cessioner — Of inspectors of tobacco — Of a picker of tobacco — Of an inspector of flour — Of inspectors of other articles than tobacco and flour — Of an attorney at law — Of a witness on a state trial — Of a witness on a traverse — Of a witness in civil cases— Of a witness to prove a will — Of a witness to be sent to the grand jury — Of a petit jury in a capital case — Of a petit jury in criminal cases not capital — Of a jury in civil cases — Of a jury laying off dower — Of a jury to assess damages for overflowing land — Of the foreman of a grand jury — Of the other grand jurors— Of a constable charged with a jury — Of a constable to attend the grand jury — Of an executor — Of an ad- ministrator — Of commissioners di- f Chap. LXXIX.] OATHS. 431 Section "viding and allotting real estate — Of conuTiissioners allotting a year's provision — Of valuers of strays- Book debt oath — Book debt oath Section for an executor or administrator. 7. Deputies to administer oaths vrher- ever their principals are authorized to do so. Whereas, lawful oaths, for the discovery of truth and estab- lishing right, are necessary and highly conducive to the important end of good government, and being most solemn appeals to Al- mighty God, as the omniscient witness of the truth, just and om- nipotent avenger of falsehoods such oaths, ought, therefore, to be taken and administered with the utmost solemnity : 1. Be it enacted by the General Assembly of the State of JYorth Carolina, and it is hereby enacted by the authority of the same, That judges and justices of the peace, and other persons, who are oaths, how to and shall be empowered to administer oaths, shall (except in the be administer- cases in this act excepted) require the party to be 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 all the blessings of the gospel, and made hable to that vengeance, which he has imprecated on his own head ; and, after repeating the words " So help me God," shall kiss the holy gospels, as a seal of confirmation to the said engage- ments. 2. In all cases when any judges, iustices of the peace, or other ^ P*^^,!™ ^oji- , „ , J J O 1 J 1 . . ^ „ scientiously persons are or shall be empowered to admmister any manner oi scrupulous of oath in this State, and the person to be sworn, shall be conscien-||^^'^^^§^^^®, tiously scrupulous of taking a book oath in manner aforesaid, and Scriptures, to pray the benefit of this act, it shall be lawful for all such judges ^^ ^J^i^^g^^^'^ and justices and other persons, and they and each of them are hand, hereby required, to excuse such person from laying hands upon, or touching the holy gospels ; and the said judges, justices and oth- ers, are hereby directed in such case to administer the oath required, in the following manner, to wit : the party, so conscientiously scrupulous and praying the benefit of this act, shall stand with his right hand lifted up towards heaven, in token of his solemn appeal to the supreme God, whose dweUing is in the highest heavens, 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 in- troduce the intended oath with these words, viz : " I, A. B., do appeal to God, as a witness of the truth and 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. And it is hereby declared, that an oath thus ad- ministered and taken, with the right hand lifted up, is and shall be a lawful oath in this State, and such oath shall be admitted and used in all courts in this State, where the same shall be required 1. 1777, c. lOS, s. 2. 2. 1777,0. 108, s. 3. 432 OATHS. [Chap. LXXIX. as aforesaid, and shall be equally good and valid in law to all intents and purposes, as if the same oath had been taken by the party hav- ing laid his hand upon, and kissed the holy gospels. Quakers, Mo- 3. The solemn affirmation of Quakers, Moravians, Dunkards ravians, Dunk- and Menonists, made in the manner heretofore used and accus- onists'tobe'^af- tomed, shall be admitted as evidence in all criminal cases, as well firmed. gg in civil Controversies in this State ; and in all cases where other atioTto be re- persons are required to take an oath to support the constitution of ceived in all this State, or of the United States, or an oath of office, the said criminaT7^ ^ Quakers, Moravians, Menonists and Dunkards, shall make their sol- emn affirmation, in the words of the said oath or oaths 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 af- 4. Every person, who shall be chosen or appointed to hold any supfTortthe" office of trust or profit in this State, shall, before his entering upon constitutions of the exccution of the office, to which he shall have been chosen or States'^an^d of appointcd, take and subscribe the following oath or affirmation : this State, to be " I, A. B., do Solemnly and sincerely swear or affirm, that I will ?ce?s. ^^ "^^^ °^" be faithful and bear 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 endeavor 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, Menonists or Dunkards, he shall take and subscribe to the follow- ing affirmation : "I, A. B., do solemnly and sincerely declare and affirm, that I will truly and faithfully demean myself as a peace- able citizen of North Carolina ; that I will be subject to the powers and authorities, that are or may be established for the good gov- ernment thereof, not inconsistent with the constitution of the said 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 this State, by any means, in any conspiracy whatever, against the said State ; that I will disclose and make known to the legislative, executive or judicial powers of the said State, all treasonable conspiracies, which I shall know to be made, or intended against the said State." Also an oath to 5. All members of the General Assembly, and all officers who consthutkin of ^^^'^ ^^ elected, chosen or appointed to any office of trust or profit the United within this State, shall, agreeably to act of congress, take the fol- States. lowing 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 :" which oath shall be taken by all members of the General Assembl}^, and by all other persons, who shall be chosen or appointed to any office of trust or profit within this State, before they enter upon the execution of the office, to which they shall have been chosen or appointed. 3. irrr, C lOS, s. 4.— 1777, c. 115, s. 42.— 1S19, c. 1019.— 1821, c. lUS. 4. 1791, c 342, s. 1. 5. 1791, c. 342, s. 2. Chap.. LXXIX.] oaths. 433 6. The oaths of office to be taken hy each and every officer, elected or appointed under the constitution and laws of this State,, shall be in the following words respectively. THE OATH OP THE GOVERNOR. I, A. B., do swear or affirm (as the case may be,) that as gov- Oath of the emor of the State of North Carolina, I will execute the duties of S"^'""""^- that important office without favor or affection, agreeably to the constitution and laws of the State, and according to the best of my skill and ability : so help me God.. THE OATH OF THE SECRETARY OF STATE. I, A. B,, do swear (or affirm) that I will in all cases faithfully Of the secre- and honestly execute the office of secretary of state of the State^^"^^ of state. ol North Carolina, during my continuance in office, according to, law. THE OATH OF THE PUBLIC TREASURER. I, A. B., do swear (or affirm) that, according to the best of my of the public abilities and judgment, I will execute impartially the office of pub- treasurer. lie treasm'er in all things according to the law, and account for the public taxes, and I will not directly or indirectly apply the public money to any other use than by law directed : so help me God. THE OATH OF THE COMPTROLLER. I, A. B., do solemnly swear (or affirm) that I will well and truly Of the comp- execute the trust reposed in me as comptroller, without favor or '° '^'^' partiality,, according to law, to the best of my knowledge and abil- ity : so help me God. THE OATH OF A JUDGE OF THE SUPREME COURT. I, A. B., do solemnly swear (or affirm) that, in my office of Of a judge of judge of the supreme court of North Carolina, I will administer court?^'^'^"^^ justice without respect to persons, and do equal right to the poor and the rich, to the State and to individuals, and that I will honest- ly, faithfully and impartially perform all the duties of the said office, according to the best of my abiUties and agreeably to the constitu- tion and laws of the State : so help me God. THE OATH OF A JUDGE OF THE SUPERIOR COURT OF LAW AND EQUITY. I, A. B., do solemnly swear (or affii'm) that I will well and truly Of a judge of serve the State of North Carolina in the office of judge of the supe- eourls!'"^"'^ rior courts of law and equity of the said State ; 1 will do equal law and right to all persons, rich and poor, without having regard to any person. I will not wittingly or willingly take, by myself or by any other person, any fee, gift, gratuity or reward whatsoever, for any 6. 1798, c. 503, s. 3.— 1S27, c. 1, s. 10 —1782, c. 17-!, s. 2.— 1818, c. 963, s. 1.— 1777, c. 11.5, s. 5.— 1777, c. 115, s. 52. — 1818, c. 9G3, s. 5. — 1777, c. 115, s. 4.— 183i, c. 2, s. 4. —1787, <.-. 278, S. 3.-1777,0. 115, S. 61.— 1777, c. 118, s. 1.-1741, c. 24, s. 2.— 1833, c. 5, s. 2.-1777, c. 118, s. 13.-1741, c. 32, s. 6.— 1777, c. 114, s. 13.— 1792, c. 365, s. 3.— 1777, c. 120, s. 4,-1787, c. 265, s. 5.— 1810, c. 790, s. 10.-1784, c. 206, s. 2.-1777, c. 115, s. 8. — Amended. VOL. I. 55 434 OATHS. [Chap. LXXIX. matter or thing by meto be done by virtue of my office, except the fees and salary by law appointed ; I will not maintain, by myself or by any other person, privately or openly, any plea or quarrel depend- ing in any of the said courts ; I will not delay any person of com- mon right, by reason of any letter or command from any person or persons in authority to me directed, or for any other cause what- soever, and in case any letter or orders come to me contrary to law, I will proceed to enforce the law, such letters or orders not- withstanding ; I will not give my voice for the appointment of any person to be clerk of any of the said courts, but such of the can- didates as appear to me sufficiently qualified for that office, and in all such appointments I will nominate without reward, hope of re- ward, prejudice, favor or partiality, or any other sinister motive whatsoever ; and finally, in all things belonging to my office, dur- ing my continuance therein, I will faithfully, truly and justly, ac- cording to the best of my skill and judgment, do equal and impartial justice to the public and to individuals : so help me God. THE OATH OF THE ATTORNEY GENERAL AND SOLICITOKS. solicitors. Of tlieattorney ^^ ^" ■^•' ^° solemnly swear (or affirm) that I will well and truly general and serve the State of North Carolina in the office of attorney general (or solicitor) ; I will, in the execution of my office, endeavor to have the criminal laws fairly and impartially administered, so far as in me lies, according to the best of my knowledge and abihty : so help me God. THE OATH OF A JUSTICE OF THE PEACE. Of a justice of I, A. B., do solemnly swear (or affirm) that as a justice of the t e peace. peace, and as a justice of the county court of pleas and quarter sessions in the county of , in all articles in the commission to me directed, 1 will do equal right to the poor and to the rich, to the best of my judgment and according to the laws of the State ; I will not, privately or openly, by myself or any other person, be of counsel in bmj quarrel or suit depending before me, and I will hold the quarter sessions and county courts of my county, as the statutes in that case shall and may direct ; the fines and amerce- ments that shall happen to be made, and the forfeitures that shall be incurred, I will cause to be duly entered without concealment ; I will not wittingly or wiUingly take, by myself or by any other person for me, any fee, gift, gratuity or reward whatsoever for any matter or thing, by me to be done by virtue of my office, except such fees as are or may be directed and limited by statute, but well and truly I will do my office of justice of the peace, as well within the county court of pleas and quarter sessions as without ; I will not delay any person of common right, by reason of any let- ter or order from any person or persons in authority to me directed, or for any other cause whatever, and if any letter or order come to me contrary to law, I will proceed to enforce the law, such letter or order notwithstanding. I will not direct, or cause to be directed, any warrant by me to be made to the parties, but will direct all such warrants to the sheriffs or constables of the county, or the other Chap. LXXIX.] oaths. 435 officers or ministers of the State, or other indifferent persons to do execution thereof ; and finally, in all things belonging to ray office, during my continuance therein, I will faithfully, truly and justly, and according to the best of my skill and judgment, do equal and impartial justice to the pubHc and to individuals : so help me God. THE OATH OF THE CLERK OF THE SUPREME COURT. » I, A. B., do swear (or affirm) that, by myself or any other Of the clerk of person, I neither have given or will give to any person or persons coun"^'^^""^ whatsoever, any gratuity, gift, fee, or reward, in consideration of my appointment to the office of clerk of the supreme court of North Carolina, nor have I sold nor offered to sell, nor M'ill I sell nor offer to sell, my interest in the said office ; I also solemnly swear that I do not, directly or indirectly, hold any other lucra- tive office in this State ; I do further swear that I will execute the office of clerk of the supreme court without prejudice, favor, affection or partiality, to the best of my skill and ability : so help me God. THE OATH OF A CLERK OF THE SUPERIOR COURTS OF LAW. I, A. B., do swear (or affirm) that, by myself or any other per- of a clerk of son, I neither have given nor will I give to any person or persons ^^® j"P®"°"^ whatsoever, any gratuity, gift, fee or reward, in consideration of my election or appointment to the office of clerk of the superior court of law for the county of , nor have I sold nor offered to sell, nor will I sell nor offer to sell, my interest in the said office ; I also solemnly sw^ear that I do not, directly or indirectly, hold any other lucrative office in the State ; and I do further swear, that I will execute the office of clerk of the superior court of law for the county of , without prejudice, favor, affec- tion or partiality, to the best of my skill and abihty :: ^o help me God. THE OATH OF A CLERK AND MASTER IN EQ.UITY-., The same as the oath prescribed for a clerk of the superior ^^ ^ ^^^^^ ^'id courts of law, mutatis mutandis. THE OATH OF A CLERK OF THE COURTS OF PLEAS AND QUARTER SESSIONS. The same, mutatis mutandis, as that prescribed for the clerks of Of a clerk of the superior courts of law. courts'.™^'*' THE OATH OF A SHERIFF. I, A. B., do solemnly swear (or affirm) that I will execute the Of a sheriir. office of sheriff of county to the best of my knowledge and ability, agreeably to law, and that I will not take, accept or receive, directly or indirectly, any fee, gift, bribe, gratuity or reward what- soever, for returning any man to serve as a juror, or for making any false return on any process to me directed ; and I also swear that I have not given any fee, gift, gratuity or reward or other thing whatsoever, to any person or persons, for his or their vote or in- terest to procure me to be nominated to the said office, nor will I hereafter give to any person or persons such fee, gift, gratuity or 436 OATHS. [Chap. LXXIX, reward, for having procured or contributed to procure me to be nominated thereto : so help me God. THE OATH OF A CORONER. Of a coroner. I, A. B., do solemnly swear (or affirm) that, in all things, I will diligently, faithfully and impartially execute the office of coroner for the county of , according to law and according to the best of my skill and ability ,: so help me God. THE OATH OF A COUNTY ATTOR^tEY. Of a coKirty at- I, A. B., d<5 solemnly swear (or affirm) that I will well and truly torney. ^^^^^ ^^^ g^^^^ ^^ attorney for the county of , and that I will faithfully and impartially perform all the duties of my office accord- ing to law, and according to the hest of mj knowledge and ability : so help me God. THE GATH OF A CONSTABLE, Of a constable. I, A. B., do solemnly swear (or affirm) that I will well and truly serve the State of North Carolina in the office of a constable ; I will see and cause the peace of the State to be well and truly preserved and kept according to my power .; I will arrest all such persons as, in my sight, shall ride or go armed offensively or shall commit or make any riot, affray or other breach of the peace ; I will do my best endeavor, upon complaint to me made, to apprehend all felons and rioters or persons riotously assembled, and if any such offenders shall make resistance with force, I will make hue and cry and will pursue them according to law, and will fahlifully and with- out delay execute and return all lawful precepts to me directed ; I will, well and truly, according to my knowledge, power and ability, do and execute all other things belonging to the office of a consta- ble, so long as I shall continue in office : so help me God. THE OATH OF A COUNTY TRUSTEE. tJustee"™^^ I? A. B., do solemnly swear (or affirm) that, according to the best of my skill and ability, I will execute impartially the office of county trustee for the county of , in all things according to the law, that 1 will duly and faithfully account for all public moneys that may come into my hands, and will not, directly or indirectly, apply the same or any part thereof to any other use than by law directed : so help me God. THE OATH OF A REGISTER. Of a register. I? A. B., do solemnly swear (or affirm) that I will faithfully and truly, according to the best of my skill and ability, execute the office of register for the county of , in all things according to law : so help me God. THE OATH OF A STANDARD KEEPER. Of a standard I, A. B., swear (or affirm) that I will not stamp, seal or give any eeper. certificate for any steelyards, weights or measures, but such as shall, as near as possible, agree with the standard in my keeping ; Chap. LXXIX.] oaths. 437 and that I will, in all respects, truly and faithfully discharge and execute the power and trust, by law reposed in me, to the best of my ability and capacity : so help me God. THE OATH OF A BANGER. L I, A. B., do swear (or affirm) that I will well and truly execute Of a ranger, the office of a ranger for the county of , according to the best of my skill and ability : so help me God. THE OATH OF AN ENTRY TAKER. I, A. B., do solemnly swear (or affirm) that I will well and im- Of an entry partially discharge the several duties of the office of entry taker ®'^" for the county of , according to law : so help me God. THE OATH OF A COUNTY SURVEYOR. The same, mutatis mutandis, with that of entry taker. Of a county surveyor. THE OATH OF A PROCESSIONER. sioner. I, A. B., do solemnly swear (or affirm) that I will well and truly Of a proces- execute the duty and trust, enjoined by the act for processioning ' lands in this State, according to the best of my skill and ability, without favor or partiahty to any person or persons whatsoever : so help me God. THE OATH OF INSPECTORS OF TOBACCO. I, A. B., swear (or affirm) that I will carefully and diligently Of inspectors view and examine all tobacco, brought to any public warehouse, tobacco, whereof I am appointed to be inspector, and all other tobacco, which I may be called upon to view and inspect, and that, not sep- arate and apart from my fellow, but in his presence ; and that I will not receive any tobacco, that is not, in my judgment, sound, well conditioned, merchantable, and clear of trash, nor receive, pass or stamp any tobacco, hogsheads or cask of tobacco, prohib- ited by law ; and that I will not change, alter, or give out any tobacco, other than such hogshead or cask, for which the receipt to be taken in was given, but that I will, in all things, well and faithfully discharge my duty in the office of inspector, according to law, without fear, favor, affection, malice or partiality : so help me God. THE OATH OF A PICKER OF TOBACCO. 1, A. B., do swear (or affirm) that I will faithfully pick all to- ^fji^ picker of bacco, which may be put into my possession for that purpose, with- out fraud or damage to the owner : so help me God. THE OATH OF AN INSPECTOR OF FLOUR. I, A. B., do swear (or affirm) that I will, without favor or affec- Of an inspector tion, malice or partiality, inspect all flour brought to me, and ° which 1 shall be required to examine, thai no flour shall be passed or branded by me without my inspecting the same ; that I will not brand, or cause to be branded, as passed, any cask or casks of flour that do not appear to me, to the best of my skill and judg- 438 OATHS. [Chap. LXXIX. ment, to be sufficiently clean, well ground, sweet and men^bant- able ; that I will mark on all casks of flour the degree thereof, according to the directions of law ; that I will carefully examine the casks, in which flour brought for inspection shall be contained, and that I will not pass or brand any such casks, unless they be of such size, goodness and thickness as by law required : so help me God. THE OATH OF INSPECTORS OF OTHER ARTICLES THAN TOBACCO AND FLOUR. Of inspectors I? A- ^-5 ^^ swear (or affirm) that I will faithfully, impartially of Other ar- and diligently execute the office of inspector, and that I will not, ibaccoand'flo°ur. fot- ^^^""^5 ^ff^ction, prejudice or partiality, brand for any person whatsoever any barrel of beef, pork, rice, tar, pitch or turpentine, fish, butter or flaxseed, or pass any staves or heading, lumber or shingles, other than such as are declared to be lawful, according to the best of my skill and judgment : so help me God. THE OATH OF AN ATTORNEY AT LAW, Of an attorney I^ A. B., do swear (or affirm) that I will truly and honestly demean myself in the practice of an attorney, according to the best of my knowledge and ability : so help me God. ' OATH OF A WITNESS ON A CAPITAL TRIAL. Of a Witness "phe evidence you shall give to the court and iury, between the trial. State and the prisoner at the bar, shall be the truth, the whole truth, and nothing but the truth : so help you God. OATH OF A WITNESS ON A TRAVERSE. Of a witness The evidence you shall give to the court and jury, touching this on a traverse, iggye of traverse, between the State and A. B., shall be the truth, the whole truth, and nothing but the truth : so help you God. OATH OF A WITNESS IN CIVIL CASES. Of a witness in The evidence you shall give to the court and jury, in this cause civil cases. now on trial, wherein A. B. is plaintiff and C. D. defendant, shall be the truth, the whole truth, and nothing but the truth : so help you God. OATH OF A WITNESS TO PROVE A WILL. Of awitnessto You swear that you saw C. D. sign, seal, publish and declare prove a will. , . .. , •' , ■ i • i -n / , this wTiting to be and contam his last will and testament ; that at the time thereof he was of sound and disposing mind and memory, and that he did it freely, without compulsion, to the best of your knowledge : so help you God. OATH OF A WITNESS TO BE SENT TO TH R GRAND JURY. Of a witness The evidence you shall give to the grand jury, upon this bill thJ'grS jury. °^ indictment against A. B., shall be the truth, the whole truth, and nothing but the truth : so help you God. Chap. LXXIX.] oaths. 439 OATH OF A PETIT JURY IN A CAPITAL CASE. You shall well and truly try and true deliverance make, between Of a petit jury the State and the prisoner at the bar whom you shall have in J,"jl'^''^i^"'^^ charge, and a true verdict give according to your evidence : so help you God. OATH OP A PETIT JURY IN CRIMINAL CASES NOT CAPITAL. You and each of you swear that you will well and truly try all P^ ^. P'r^^V^'^^ c 1 • I 1 11 -^ 1 f 1 • 1 • I 1" criminal issues 01 traverse, which shall come beiore you during this day, cases not cap- and true verdicts give according to the evidence thereon : so help ^^'^^• you God. OATH OF A JURY IN CIVIL CASES. The original panel thus : — You and each of you swear that youof ajuryin will well and truly try all civil cases, which shall come before you ^i^^^ <^^*'^'^- during this term, and true verdicts give according to the evidence thereon : so help you God. The same oath to talesmen by using the word " day" instead of " term." OATH OF PETIT JURY LAYING OFF DOWER. You and each of you swear that you will, without partiality and Pf a jury lay- according to your best judgment, lay ofi'and allot to A. B., widow '"^° of C. D., such dower in the lands of said C. D. as by law she is entitled to ; so help you God. OATH OF A JURY TO ASSESS DAMAGES FOR OVERFLOWING LAND, You and each of you swear that you will well and truly inquire, ^^ ^ J^jy *" 111 -11 ••/-in assess damages whether any damage hath been sustained by the petitioner A. Jo., for overflowing by reason of the erection of the mill complained of by him, and, if^^^ds. any damage hath been sustained, that you and each of you will impartially, according to the best of your judgment and ability, as- sess the amount which the said A. B. ought annually to receive from the owner, proprietor or tenants of said mill, on account thereof: so help you God. OATH OF THE FOREMAN OF A GRAND JURY. You, as foreman of this s:rand inquest for the body of this coun- 0/ the foreman ty, shall diligently inquire and true presentment make of all such ° matters and things as shall be given you in charge ; the State's counsel, your fellows' and your own you shall keep secret ; you shall present no one for envy, hatred or malice ; neither shall you leave any one unpresented, for fear, favor or aftection, reward or the hope of reward, but you shall present all things truly, as they come to your knowledge, according to the best of your understanding : so help you God. OATH OF THE OTHER GRAND JURORS. The same oath which your foreman hath taken on his part, you O^' the. other and each of you shall well and truly observe and keep on your*'^"*^ jurois. part : so help you God. . 440 OATHS. [Chap. LXXIX. OATH OF A CONSTABLE CHAKGED WITH A JURY. Of a constable You swear that you will keep every person, sworn of this iury, charffed with a ,. •'. , ^ • ■, -i J J ^ jury. together in some private and convenient place, without meat or drink (water excepted). You shall not suffer any person to speak to them, neither shall you speak to them yourself, unless it be to ask them whether they are agreed in their verdict, but with leave of the court : so help you God. OATH OF A CONSTABLE TO ATTEND THE GKAND JURY. to^attend\'he^^ ^°" swear that you will faithfully carry all papers sent from the grand jury. court to the grand jury, or from the grand jury to the court, with- out alteration or erasement : so help you God. OATH OF AN EXECUTOR. Of an executor. You swear that you believe this writing to be and contain the last will and testament of A. B., deceased, and that you will well and truly execute the same, by first paying his debts and then his legacies, as far as the said estate shall extend, or the law shall charge you ; and that you will well and faithfully execute the office of an executor, agreeably to the trust and confidence reposed in you, and agreeably to law : so help you Goli« THE OATH OF AN ADMINISTRATOR. Of an admin- istrator. You swear that you believe A. B. died without 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 into 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. OATH OF COMMISSIONERS DIVIDING AND ALLOTTING REAL ESTATE. Of commis- You and each of you swear, that, in the partition of the real sion6rs cliviciinsf . and allotting estate now about to be made by you, you will do equal and impar- real estate. j-;^] justice among the several claimants, according to their several rights, and agreeably to law : so help you God. OATH OF COMailSSIONERS ALLOTTING A YEAr'S PROVISION. Of comniis- You and each of you swear that you will lay off and allot to the sionsrs £illot- 1/ •/ ting a year's petitioner, a year's provision for herself and family, according to provision. jg^y^ gjjj \Mi\h your best skill and ability : so help you God. OATH OF VALUERS OF STRAYS. stra^^s^"^"^^ °^ ^^^ swear that you will well and truly view and appraise the stray, in the summons to you directed, without favor or partiality, according to your skill and abihty : so help you God. BOOK DEBT OATH. Book debt You swear that the matter in dispute is a book account, and that you have no means to prove the delivery of such articles, as you propose to prove by your own oath, or any of them, but by your- Chap. LXXX.] offices. 441 ( ■ _ ■ || self, and you further swear that the account rendered by you is just I and true ; and that you have given all just credits : so help you God. BOOK DEBT OATH FOU AN EXECUTOR OS ADMINISTRATOR. You, as executor or administrator of A. B., swear that you Book debt verily believe this account to be just and true, and that there are °gyfQj.°py^£[^(j.^^' no witnesses to your knowledge, capable of proving the delivery ministrator. of the articles therein charged, and that you found the book or account so stated, and do not know of any other or further credit to be given than what is therein given : so help you God. 7. In all cases where any civil officer, in the discharge of his Deputies to ad- duties, is permitted by the law to administer an oath, the deputy of ^{^"'^g^^g^^hefr such officer, when discharging such duties, shall have authority to principals are administer it, provided he is a sworn officer ; and the oath thus do'so."^^*^ ^° administered by the deputy, shall be as obligatory as if administered by the principal officer, and shall be attended with the same penal- ties in case of false swearing. 7. 1836, c. 27, s. 2. Note. — References to Adjudged Cases. Sect. 2. State vs. Whisenhurst, 2 Hawks, 458. CHAPTER 80. OFFICES, AN ACT CONCERNING OFFICES. Section the peace and ofBcers of the mi- litia. 2. Contracts for the sale of offices void. Section I. Penalty for holding an office both under this State and the United States— Proviso as to justices of 1. Be it enacted by the General Assembly of the State of JVorth Carolina, and it is hereby enacted by the authority of the same, That if any person, holding any office or place of profit or trust p^^^j^ under the United States or any department thereof, or under this holdln|an'"of- State or any other state or government, or acting as senator or f^.® ^°^^ ""'i^' ..• •,] ^iTT-i/-, 111 this State and representative in the congress of the United States, shall presume the United to hold or exercise any other office or place of trust or profit, ^^^'es. under the authority of this State, or to take a seat in either house of the General Assembly of this State, or if any person, holding 1. 1790, c. 319.— 1792, c. 366.— 1793, c. 393.-1796, c. 450.— 1811, c 811, VOL. I. 56 i * 1 442 OFFICIAL BONDS. [ChAP.-^ LXXXI. any office or place of profit or trust, under the authority of this State, or accepting a seat in the General Assembly of this State, shall presume to hold or exercise any office of profit or trust under the United States or any department thereof, or any other state or government, or shall act as senator or representative in the congress of the United States, without resigning his previous office or place of profit or trust, he shall, for every such offence, forfeit and pay the sum of two hundred dollars, to be sued for and recovered in the name of the State, one half to the use of the State, and the Proviso as to Other half to the use of the person suing for the same ; Provided^ justices of the ^]^gj. nothing herein contained shall extend to officers in the militia peace and mill- , . /- i tia officers. or justices ol the peace. Contracts for 2. All bargains, sales, promises, bonds, agreements, covenants and assurances, made or given for the purchase or sale of any office whatsoever, the sale of which is or shall be prohibited by law, shall be void to and against him and them, by whom any such bargain, sale, bond, promise, covenant or assurance shall be had or made. the sale of of- fices void 2. 5 and 6 Edw. 6, c. 1 6, s. 3. Note. — References to Adjudged Cases. Sect. 2. Haralson vs. Dickens, 2 Car. Rep. 66. CHAPTER 81. OFFICIAL. BONDS AN ACT PRESCRIBING A MODE OF RECOVERY AGAINST CERTAIN OFFICERS THEREIN MENTIONED AND THEIR SECURITIES. Section 1 . Suits on the official bonds of clerks, &c. maybe brought by the party injured. 2. Declaration must shew in whose behalf the suit is brought — Person injured may at his election sue the officer in an action on the case. 3. Remedy before a justice of the peace against officers who neglect to pay over moneys received within the jurisdiction of a justice. 4. Summary remedy in court against Section officers failing to pay moneys re- ceived. 6. Twelve per cent, damages allowed on money unlawfully detained by an officer. 6. Clerks of the county court to record the names of the Justices present when appointments are made — Such justices, failing to take bond, are to be held securities themselves — Copy of the record to be evidence against them. ;sr42. 3 ^/f /)D- ~ 6 1. . /j\ Chap. LXXXI.] official bonds. 443 1. Be it enacted by the General Assembly of the State of JYorth Carolina, and it is hereby enacted by the authority of the same. That it shall and may be lawful for any person or persons, injured su^tg „„ the of- by the neglect, misconduct or misbehavior in office of any of the ficial bonds of clerks of the superior or county courts, clerks and masters in equity, '^^y. ^^ b?ou°-ht registers, entry takers, surveyors, sheriffs, constables, or other by the party in- officers, to institute a suit or suits against the said officers or any ^^^^ of them, and their securities, upon their respective bonds for the due performance of their duties in office in the name of the State, to whom the said bonds are made payable, without any assignment thereon. 2. The person or persons, so iniured and bringing suit as afore- Declaration • 1 1 11 1 1 1 1111 1 • 1 1 • must shew in said, shall be and are hereby declared to be entitled to receive to whose behalf his, her or their own use, all moneys so recovered : Provided, the J^^ ^^}^ '^ ..,,•',.. . c •1111 Drought. person or persons, so injured and bringing suit as atoresaid, shall state in the declaration, as he, she, or they are hereby authorized to do, matter of inducement sufficient to shew the court, (in which suit or suits may be brought,) at whose instance, and in whose behalf the same is or are brought, t^nd provided further, that may "aVhi's"^^ nothing herein contained shall prevent any person or persons, election sue injured, as aforesaid, by any of the officers aforesaid, from bring- an^ction'^o^n ing, at his, her or their election, an action on the case against such the case. officer or officers, and recovering damages for his, her, or their injury as aforesaid. 3. When any sheriff, clerk, coroner or constable, within the Remedy before several counties in this State, shall or may have received any mo- peace 'against ^ ney, by virtue of his office or appointment, and shall fail to pay the oncers who / .1 *%i J * • •* ♦! J • neglect to pay same to the person or persons entitled to receive it, then and in over moneys that case, it shall and may be lawful for a iustice of the peace to received within ^ 1 -"^ 11' V J • -J ^ c the jurisdiction issue a warrant against him and his securities and give judgment tor of a justice, any sum, not exceeding the jurisdiction of a justice of the peace, together with costs, and to award execution thereon, subject nev- ertheless to the right of appeal, and when it shall so happen that any person's appointment, as sheriff', clerk, coroner or constable, shall expire, or he be removed from office, before such warrant is- sues, the same remedy and proceedings may be had against him, as if he actually were in office. 4. Whenever a sheriff, coroner, constable, clerk of a court of Summary rem- law, or clerk and master in equity, has collected or received, or edy.iu court . • Et^^Eiinst oiiiccrs shall have collected or received, any money, by virtue or under failing to pay color of his office, and on demand shall fail to pay the same to the m?neys re- person entitled to require the payment thereof, it shall be lawful for the person thereby aggrieved to move for judgment, in any court having competent jurisdiction, against such sheriff, coroner, con- stable, clerk, or clerk and master, as the case may be, and against any or all of his securities, and it shall be the duty of such court to try the same and to render judgment accordingly, at the term when 1. 1793,c.3S4,s. I.— 1833, c 17.— lS25,c. 1276-. 2. 1793, c. 334, s. 2 and 3. 3. 1793, c. 3S4, s. 5.-1S00, c. 550.— 1802, c. 619. 4. 1815, c. 1002, s. 1. 444 OFFICIAL BONDS. [ChAP. LXXXI. Twelve per cent, damages allowed on money unlaw- fully detained by an officer. Clerks of the county court to record the names of the justices present when appoint- ments are made. Such justices, failing to take bond, are to be held securities themselves Copy of the record to be ev- idence against them. the motion shall be made : Provided, ten days' notice in writing, of such intended motion shall have been previously given, to the per- son or persons against whom judgment is prayed. 5. Whenever money, received as aforesaid, shall be unlawfully detained by a sheriff, coroner, constable, clerk of a court of law, or clerk and master in equity, from any person entitled to require the payment thereof, it shall be lawful for the person, thereby aggriev- ed, pursuing his remedy against such delinquent or his representa- tives, or his securities, whether suing in the mode by this act pre- scribed or in any other way known to the law, to recover, over and above the sum detained, damages at the rate of twelve per centum per annum, from the time of such detention until payment, and such damages shall form a part of the judgment, to be rendered in his behalf by the court or the magistrate, before whom his action may be brought : Provided, that such officer shall not be hable to the damages hereby given, if he shall offer payment in any of the notes of the banks of this State, unless the creditor shall have given notice to such officer not to receive any moneys but gold or silver. 6. It shall be the indispensable duty of the clerks of the county court, and they and every of them are hereby strictly required, to make a record of, and enter at large on their dockets, the names of those justices of the peace, who shall be in court or on the bench, at the time of the qualification of their sheriffs, clerks, entry takers and registers, and if the said clerk shall fail or neglect to make such entry and record as aforesaid, and be thereof convicted in any su- perior court, he shall forfeit his office as a punishment for such failure and neglect as aforesaid ; and should it at any time hereafter so happen, that any of the officers above named shall be permitted to officiate as such, and to discharge any of the duties of their re- spective appointments, without having first qualified and given bond with security, for the due and faithful performance of them, as is required bylaw, the justices of the peace, who sat on the bench or were in court at the time of the appointment of the officer or offi- cers so officiating and acting as aforesaid, in virtue and under color of his appointment, but without qualifying or giving bond, shall be considered bound, to all intents and purposes, and they and every of them are hereby declared to be bound, as the securities of the sheriff or other officer or officers thus acting and availing himself of such his appointment, without having first given bond for the faith- ful performance of his duty in office, in the same degree and in the same manner as though they had been formally bound by entering into and executing bonds with and as the securities of such officers ; and they may and shall be proceeded against accordingly, by the proper officers of the State, and all other persons concerned ; and in all suits and proceedings under this section, a copy of the record of the court, attested by the clerk, is hereby declared to be legal and sufficient evidence, and shall be admitted as such, and judg- ment shall be had thereon accordingly. 5. 1819, c. 1002, s. 2. 6, 1790, c. 327.— 1809, c. 777. Chap. LXXXIL] ordinaries. Note. — References to Adjudged Cases. Sect. 4. State bank vs. Davenport, 2 Dev. and Bat. Sect. 6. Rawles vs. Deans, 4 Hawks, 299. Governor vs. M'Affee, 2 Dev. 15. bank vs. Davenport, 2 Dev. and Bat. 445 State CHAPTER 82. ORDINARIES AN ACT FOR REGULATING ORDINARIES. Section 1 . Retailers of liquors to sell by sealed measures. 2. How a license to keep an ordinary may be obtained — Bond to be given. 3. How license to be issued, and how long to continue in force. 4. Justices to establish rates of cliarges — Duty of ordinary keepers. Section 5. No ordinary keeper to give credit for liquors beyond ten dollars — Proviso. 6. Penalty on ordinary keepers for en- tertaining slaves or sailors. 7. Persons wishing to obtain license to sell spirituous liquors, how to pro- ceed. 1. Be it enacted by the General Assembly of the State of JSTorth Carolina, and it is hereby enacted by the authority of the same, That all persons, hereafter retailing liquors, shall sell the same by Retailers of sealed measures, or such other measures as shall at least contain |j*^"°al;ed ^^^^ the full quantity pretended to be sold. measures. 2. Any person, by applying to the court of the county in which How a license such person dwells, and praying a license to keep an ordinary, may, djnarymay°be at the discretion of such court, be ordered to have a license for the obtained. purpose aforesaid, unless it shall appear to the said court that the person so applying is a person of gross immorality, or of such poor circumstances and slender credit, that they think him or her not able to comply with the intention of this act. And on granting such hcense, the person who applies for the same, shall produce one or more securities to the said court, to be by them approved, who shall, before the license be made out, join with him or her in a bond of the following tenor, to wit : " Know all men by these presents, that we, A. B. and C. D., Bond to be are held and firmly bound to the State of North Carolina, in the sum of two hundred dollars, to be paid to the State, to which pay- ment well and truly to be made, we bind ourselves and every of us, our and every of our heirs, executors and administrators, jointly and severally firmly by these presents, sealed with our seals and dated the day of given. 1. 1793, C. 501, s. 1.— 1741, 2. I79S, c. 501, s. 2. c. 32. 446 ORDINARIES. [Chap. LXXXII. " The condition of the above obligation is such that whereas the above bounden A. B. hath obtained a Hcense to keep an ordinary at ; if therefore the said A. B. doth constantly find and pro- vide, in his or her said ordinary, good and wholesome diet and lodging for travellers, and stable, fodder, corn and pasturage for their horses, for and diwing the term of one year from the day of , then this obligation to be void, otherwise to remain in full force." And in case of breach of, or not complying with the condition of the said bond, it shall and may be lawful for any person, in the name of the State, to sue for and recover the penalty of the said bond, one half thereof to his use, and the other half to the use of the State. How license to 3. When such bond shall have been given, the clerk of the how long' to court shall prepare a license and sign the same, which license shall continue in continue in force one year and no longer ; and the said clerk shall receive eighty cents in full for his fees and furnishing a copy of the tavern rates ; and every person obtaining such license shall pay to the sherift' of his or her county, at the time of paying public taxes, four dollars as a tax to the State. Justices to es- 4^ 'Yhe justices of each county shall, once a year or oftener if tablish rates ot \ n 1 1 1 1 r- 1 /• 1 r ^ charges. necessary, at the first court to be held alter the first day 01 Janu- ary in each year, rate the prices of liquor, diet, lodging, fodder, corn, provender and pasturage, to be taken by ordinary keep- ers in their respective counties ; and every ordinary keeper shall, Duty of or- within thirty days after such rates are settled, cause the same to be dinary keepers, set up in the common entertaining room of such ordinary, and there kept until the rates are again altered ; and on failing so to do, shall forfeit and pay the sum of forty dollars, to the use of the county wherein such offence may happen, to be recovered before any justice of the peace of said county, subject nevertheless to an appeal as in other warrants. No ordinary ^- ^^ Ordinary keeper shall sell on credit, liquors to any per- keepertogive son to a greater amount than ten dollars, unless the person so liquors beyond Credited, sign a book or note in the presence of one or more wit- ten dollars. nesses, in acknowledgment of the said debt, under the penalty of losing the money so credited ; and in any action brought for recov- ery of such debt, the general issue may be pleaded and this act Proviso. given in evidence : Provided nevertheless, that nothing in this sec- tion contained shall be construed, deemed or taken, to prohibit or restrain any person to sell, by retail, brandy or other distilled spir- its, the production of his own farm, by the quart or a greater quantity. Penalty on or- 6. If any ordinary keeper shall entertain slaves against the will dinary keepers gf their owncrs, or common sailors asrainst the direction of the lor entertaining » , 1 • 1 1 11 i- 1 slaves or masters 01 vessels, to which they belong, every ordinary keeper, sailors. gQ offending, shall and may, by order of the justice before whom such offence shall be proved, be from thenceforth suspended and 8. 1798, c. 501, s. 3. 4. 1798, c 501, s. 5. .5 1798, C. 501, S'. 6. 6. 179S, C. 501, S.4. Chap. LXXXIIL] overseers. 447 disabled from keeping an ordinary, as if he or she had never obtained a license for that purpose ; and shall be further subject to a fine of ten dollars, to the use of the party suing for the same, to be recov- ered before any justice of the peace, subject, nevertheless, to an appeal to court, as in cases of other warrants, by either party who may think himself aggrieved by the determination of such justice. 7. Every person, wishing to retail spirituous liquors by the small ?^„^^^"^^^^gYn measure, viz : by a measure less than a quart, shall apply to the licenses to re- county court of pleas and quarter sessions, in which he resides, ^quors'^how^to and obtain an order therefor, which order shall be granted by the proceed. said court, seven justices being on the bench, only to such free white persons as shall satisfactorily shew to the court their good moral character, by at least two witnesses of known respectability, to whom the character of the applicant has been known for at least one year : and, upon the same being granted as aforesaid, the clerk shall give to the party, so applying for a license, a certificate thereof, upon which he may obtain a license, in the manner pro- vided in the act concerning the public revenue : Provided, that no person, obtaining a license, shall be authorized to retail spirituous liquors at more than one place in said county, for which said license may be granted : And provided further, that such license shall continue in force only for one year. 7. 182S, c. 1272, s. 2 and 3.— 1828, c. 10. Note, — Refrences to Adjudged Cases. Sect. 4, State vs. Wynne, 1 Hawks, 451. Sect. 5. Thomcgeux vs. Bell, Martin, 44. CHAPTER 83. OTERSEERS. AN ACT CONCERNING OVERSEERS. Be it enacted by the General Jlssemhly of the State of JVorth Carolina, and it is hereby enacted by the authority of the same, That if any person shall hire or contract himself to serve as an Overseer leav- •A 1 r ^1 1 VI ing his em- overseer, eitlier upon wages or share oi the produce, with any piSyer, to for- person or planter whatsoever, and shall absent himself or depart ^^i^ ^^^ wages. from the service of his employer, before the time mentioned in his agreement or contract shall be expired, he shall, for such offence, forfeit his right and title to his wages or share of the pro- duce. 1741, C. 35, s. 22. Note. — References to Adjudged Cases. Steed vs. McRae, 1 Dev. and Bat. 435. 448 OYSTERS, [Chap. LXXXIV. CHAPTER 84. OYSTERS. AN ACT TO PREVENT THE DESTRUCTION OP OYSTERS. Penalty for transporting oysters out of the State. Offenders to give bail. Duty of mag- istrates in ap- prehending of- fenders. Section 1. Penalty for transporting oysters out of the State. 2. OiFenders to give bail. Section 3. Duty of magistrates in apprehending offenders. 4. Penalty for using any instrument ex-- cept tongs, in taking oysters. 1. Be it enacted by the General Assembly of the State of JYorth Carolina, and it is hereby enacted by the authority of the same, That it shall not be lawful for any person or persons to carry oysters out of this State, and if any master or skipper of a vessel shall hereafter transport any quantity of oysters, taken from any place within this State, to any place beyond the limits thereof, every such master or skipper shall forfeit and pay two hundred dollars for every such offence, to be recovered in any court of record, by any person who will sue for the same, one half to the use of the informer, and the other half to the poor of the county. 2. In all actions which shall be brought against any master or skipper of any vessel, in pursuance of this act, such master or skipper shall be required to give appearance bail : Provided, the plaintiff shall make affidavit, before a magistrate, of the cause of such action, to be transmitted to the clerk of the court, wherein the suit shall be prosecuted. 3. Whenever any person shall make affidavit that he has good cause to believe, that any master or skipper of a vessel has received on board such vessel oysters, for the purpose of transporting them out of this State, contrary to the provisions of this act, it shall be lawful for the magistrate, before whom such affidavit shall be made, and within whose jurisdiction such vessel may be, to issue his war- rant for the immediate apprehension of such master or skipper, and for bringing him before such magistrate, or before any other magis- trate of the same county, and the justice, before whom such per- son shall be brought, upon hearing such evidence as may be adduced before him, if there be no good cause to believe that a violation of the provisions of this act is intended, shall discharge from further custody such master or skipper, but if it shall appear to such magistrate that there is good cause to believe, that a viola- tion of the provisions of this act is intended by such master or skipper, then it shall be the duty of such magistrate to commit 1. 182-2, c. 1134, s. 1. 2. 1822, c. 1134, s. 2 3. 1822, c. 1134, s. 3. Chap. LXXXV.] partition. 449 such master or skipper to the jail of his county, unless he shall enter into a recognizance with sufficient security, in a sum not exceeding two hundred dollars, upon condition to appear at the next court to be held for such county, and to abide and perform such order or orders as shall be made by such court. 4. If any person shall use any drag, scoop, or rake, or other penalty for instrument except tongs, such as have been generally used for the using any m- c /. ° . , . , r 1 • o(. ^ struraent ex- purpose ot catching oysters, withm the waters oi this fetate, every cent tongs in person so offending, and being thereof convicted before a magis- taking oysters, trate of either of the counties adjoining the water course, in which the offence has been committed, shall forthwith pay, if a free man, the sum of twenty dollars, and if a slave, he, she or they shall receive, on his or her bare back, so many stripes as such magis- trate shall direct, not exceeding twenty, or be committed by such magistrate to the public jail of the county, there to remain without bail, for thirty days, unless such fine of twenty dollars be sooner discharged, one half of which fine shall go the county, and the other half to the use of the informer : Provided^ that nothing in this act shall be so construed, as to prevent the carrying of oysters into the North and Northwest rivers, having their source in the State of Virginia, as now practised, nor the exportation of pickled oysters in vessels to the West Indies : Provided, that no one ves- sel shall carry more than sixty gallons at one time. 4. 1822, c. 1134, s. 4. CHAPTER 85. PARTITION. AN ACT PRESCRIBING A MODE BY WHICH PARTITION OF REAL AND PERSONAL ESTATES MAY BE MADE AMONG TENANTS IN COMMON, AND IN WHAT CASES SUCH ESTATES MAY BE SOLD FOR A DIVISION. Section 1 . One or more tenants in common may file a petition in the superior or coun- ty court for a division of real estate — Proceedings on such petition. 2. The petition to be filed in the supe- rior court when the land lies in dif- ferent counties — If one co-tenant is absent from the State, advertise- ment must be made. 3. Commissioners to divide the land as equally as possible— Sums charged VOL. I. 57 Section on dividends of minors not to be paid until they come of age. 4. Sums charged to bear interest — Guardian of minor shall pay when he has assets. 5. Sheriff" shall summon commissioners and swear them. 6. Pay of commissioners — Court to or- der by whom the costs of the peti- tion shall be paid. 7. Court of equity may order a sale of 450 PARTITION. [Chap. LXXXV. Section real 9. 10. 11. 12. 13. 14. estate for division, when it cannot be divided otherwise without prejudice to the parties. Court of equity may order a sale of real estate required for public pur- poses, upon the petition of the ten- ants in common. Where the sale shall be made. The deed of the clerk and master shall convey the title. Where there is dower on the land the court may decree a sale, and appor- tion the dower interest. Proceedings when lands descended or devised lie partly in this State and partly in another state. The court may decree a partition of such lands. Court shall appoint commissioners — Duty of such commissioners in 15. 16. Section making a partition of such lands — What final decree the court may make. When a decree for partition in anoth- er State may be enforced in this State. Court to judge whether another state has passed a law in conformity to this. 17. Time allowed for^emes coz>erf, infants, &c. How a partition of personal property among tenants in common may be made. When personal property may be sold for a division. 20. Court may appoint a guardian to in- fants, &c. 21. Compensation of the freeholders, clerk or other commissioners. 18. 19. 1. Be it enacted by the General Assembly of the State of JS'orth Carolina^ and it is hereby enacted by the authority of the same, One or more That the judges of the superior courts of law and equity and the tenants in com- justices of the couiity courts of pleas and quarter sessions be, and petitioif in the^ ^^^Y ^^® hereby required and empowered, on petition of one or more superior or persons, claiming the real estate of any intestate, or on petition of for"a%visionof°"^ °^ morc pcrsons otherwise claiming any real estate as tenants in real estate. common, to appoint five commissioners to divide and appropriate the ^uclf pethmn°" Same, or so much thereof as shall be prayed for, and the court shall judge proper and requisite according to law. And said commis- sioners or a majority of them, being first sworn to do justice among the claimants, according to the best of their skill and abihties, are hereby empowered to charge the more valuable dividend or divi- dends with such sum or sums as they shall judge necessary, to be paid to the dividend or dividends of inferior value, in order to make an equitable division. And further, the said commissioners or a majority of them are required, as soon as they can, to make a return of their proceedings and appropriations, under their bands and seals, ascertaining with precision the different tracts or parcels of lands, lots or houses, with actual surveys of the same when ne- cessary, to the court by which they were appointed, which return and appropriation shall be certified by the clerk and enrolled in his office, and registered in the office of the county where such lands, lots or houses respectively lie ; and such return and appropriation shall be binding and valid in, among and between the claimants, their heirs and assigns forever. The petition to 2. In all cases where the real estate lies in different counties be filed m the ^yiti^in this State, the petition for partition shall be exhibited in the superior court . x^ ^,^..,., ^ , , when the land supenor court 01 any one of the counties in whicli part oi the real lies in difierent gg^jjjg jjgg gj^j ^yhere the estate lies in one county only, the peti- rnnntip.s. ^ ' J J ' i. counties. 1. irS7, c. 274, s. 1.— 1789, c. 309. 2. 1784, C. 274, s. 1.— 1803, C. 636. Chap. LXXXV.] partition. 451 tion shall be to the superior court, or county court of pleas and quar- ter sessions of such county and no otherwise, and the proceedings in such petitions shall be analogous to those in other cases of petitions. And if one of the tenants in common shall be absent out of the State, it shall be lawful for his co-tenant, desirous of having said real j^ ^^^ co-ten- estate divided, to give notice of such intention, under an order of ant is absent the court in which the petition shall be filed, for six weeks sue- ad'verUsemeur' cessively, by advertisement at the court house or three different must be made. places in the county, and in the State Gazette, and on proof there- of, the court shall proceed as if a copy of the petition and summons had been personally served. 3. It shall be the duty of the commissioners, appointed as afore- [^"^ivM^^th"*''^^ said, to divide the lands of said tenants in common into equal shares land as equally in point of value, as nearly as possible, by a subdivision of the ^® possible, more valuable tract or tracts of land : and in case the situation of the real estate is such, that an equal division cannot be made with- out injury to the heirs or other tenants in common, and some of ^j"'^?^?]'g^^"|^'|^^ the heirs or other tenants in common are obliged to be charged minors not to with a sum or sums of money, to be paid to the dividend or divi- ^'^^P^^^^'^'l^^'^'^y dends of inferior value, then and ia that case the sum or sums, so charged on the dividend or dividends, shall not be paid until the heir or tenant in common, if a minor, shall arrive at the age of twentyone years. 4. The sum or sums, so due from the more valuable dividend foTeL'^hnefe^t or dividends, shall bear an interest of six per centum per annum until paid : Provided always, that the guardian or guardians of such minor or minors, to whom the more valuable dividend or dividends shall fall, shall at all times be at liberty and is required to pay such sum or sums, whenever assets shall come into his hands suffi- cient to discharge the same : Provided nevertheless, that if it shall min^oVshan appear that the guardian shall have had assets in his hands, which py when he he did not apply to the discharge of the sums for which his ward '^^ "^^^^ ^" is liable, he the said guardian shall be held and deemed answerable and bound to pay, out of his own proper estate, any interest which shall have accrued thereon in consequence thereof, and which might have been stopped had the same been so applied. 5. Whenever any court shall, on any petition being filed and g^j^^j^^j^^^^m- commissioners appointed, order the sheriff' of the county where the missioners and commissioners live, to summon them to appear on the premises for ^^^^^"^ ^ °'"" the purpose which may be set forth in said order, it shall be his duty to summon the same, and when they or a majority of them shall have met, the sheriff or some justice of the peace shall ad- minister the necessary oaths, before they proceed to execute the purposes for which they shall have been appointed. 6. The commissioners, for their trouble and services, may take missioners. and demand whatever the court, by which they may be appointed. Court to order shall judge adequate to the trouble they may have been at, and for costs oTthe pe- the expense thus incurred and the expenses incurred for surveyors ^i^wn shall ue 3. 1S01,C. 583, s. 1. 4. 1801, c. 55S, s. 2. 5. 1795, c. 447. 6. 1737, c. 274, s. 2.— 1528, C. 25, s. 1. mon. 452 PARTITION. [Chap. LXXXV. and otherwise, and all the other costs of the petition, the court before whom the same may be tried, may, at their discretion, de- cree by whom and in what manner the same shall be paid ; and execution may issue therefor as in other cases. Court of equity 7, It shall and may be lawful for any court of equity, in cases ^le of real es- of apphcation for a division of real estate, when it shall be sug- tate for di- gested and made appear to the satisfaction of the court, that an cannot be di- actual partition cannot be made without injury to some or all of vided otherwise t}-|g parties interested, to order a sale of the property, on such dketotSr^*^' terms as such court shall deem just and reasonable: Provided parties. always, that whenever any of the parties shall be an infant, a feme covert, non compos, imprisoned or beyond the limits of this State, it shall be the duty of the court to direct the part of the proceeds of the sale, to which such person is entitled, to be so invested or settled, that the same shall be effectually secured unto the person so entitled, or his or her real representatives. Court of equity 8. Whenever any joint tenants, or tenants in common, or the may order a auardian of such, shall, on oath or affirmation, and by a petition or sa.l6 01 rc3,l 6S- ^ . . . tate required bill, to which all the joint tenants or tenants in common shall be lor public pur- jjijj^g parties, state to a court of equity that the lands of such ioint poses, upon the r ' _ 1 j _ j petition of the tenants or tenants m common are required tor public purposes, tenants in com- ^^^ ^j^^^ the interest of the proprietors requires that a sale shall be made thereof, if the said alleged facts shall be ascertained by the court to be true, it shall then be lawful for the said court to order a sale of the said lands, or of such parts thereof as it may judge necessary, in such manner and on such terms as it shall deem expedient ; and it shall be the duty of the said court to direct that the part of the proceeds of such sales, to which any infant, /erne covert or person non compos may be entitled, be so invested as that the same shall be effectually secured to the person so entitled, or to his or her real representatives. Where the sale 9. Whenever the court of equity shall order the sale of real shall be made, ggt^^e, belonging to joint tenants or tenants in common ; the court at their discretion, may direct such sale to be made on the prem- ises, or at any place within the county, where such estate is situated. Provided alivays, that when the order of sale shall contain no such direction, sales shall be made at the places prescribed by law for public sales. The deed of the 10. In all cases arising under the seventh and eighth sections of '^^^'^'h^'i^ ^^^' ^^^^ ^^^' ^^^ deed of the clerk and master of the court ordering the title. the sale, shall be held, deemed and taken as good and sufficient to convey to the purchaser such title, interest and estate in the lands, tenements and hereditaments, ordered to be sold, as the respective tenants in common or joint tenants had therein, which deed shall recite in substance the petition of the said tenants and the decree of the court ordering the sale. Where there is H. When an application shall be made to a court of equity, by dower on the 7. 1812,0. 847. 8. 1818, c. 982, s. 1. 9. 1827, c. 41. 10. 1818, c. 982, s. 2. 11. 1819, c 1026. Chap, LXXXV.] partition. " 453 joint tenants or tenants in common, for a sale of real estate which land, the court is incumbered with dower, it shall and may be lawful, if the person s^iJ^and appor- holding or entitled to dower therein, shall join in said application, tion the dower for the court to decree an immediate sale of the said real estate, and to cause a third part of the proceeds thereof, to be secured to the use of the person, so holding or entitled to dower therein for life, or to ascertain the value of such life estate in such land, and to decree the value so ascertained, to be paid over to the person thus claiming absolutely. 12. Whenever, on the death of any person, his lands in this Proceedings State, and also in another state or states, shall descend or be d^g^cende'd'^ devised to several persons, who, by the laws of this and the other devised lie state or states shall hold in the lands, so descended or devised, undi- stateVnd^tmrt- vided estates or interests, whether as parceners, tenants in com-lyin another mon or joint tenants, or by any other undivided tenancy, and such ^'^^^' heirs or devisees cannot without suit have partition for want of consent, or because of inability in one or more of the co-tenants, if such deceased person 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 said lands lie, and in the last case the most valuable part of his lands shall lie in this State, it shall be lawful for any such heir or devisee or any person claiming by, through or under them, to file a bill in the superior court of equity, either for the county, where the deceased person resided at his death, or wherein any one tract or part of a tract of the land lies in this State, setting forth all the lands in which the plaintiff has an undivided estate, as well those without as those within the State, described by their names and boundaries or by the adjoining tracts, and also the estate the testator or intestate had in them, and the supposed value of the lands in each state, and the share in severalty, to which the plaintiff and each of his co-tenants is entitled, under the laws of the several states, in which the sev- eral tracts or parts of tracts may lie, and praying for partition to be made of all the tracts, as if the lands were situated within the jurisdiction of one sovereign state, respect being had to the value of interest, to which the several co-tenants in joint tenancy, in common or co-parcenary, or other undivided tenancy, may have in the several tracts, by the laws of the several states in which they may be situated, and the material facts set forth in the said bill shall be verified by the affidavit of the plaintiff or his guardian, or other person, at the discretion of the court, and on the exhibition of such bill all persons, concerned in interest in the lands, of which partition is to be made, shall be made parties by process or publication, as in other cases in equity, according to the practice of the courts of equity in this State. 13. On the hearing of any such bill, the court may and shall. The court may by interlocutory order, decree a partition of all the lands in the 5?"'^^ ^ P^""; •'..^ •' \ ...f, I'll tition of such seizin 01 any tenants ot an undivided estate or estates, derived by lands. descent from a common ancestor, or by devise from any testator, and shall allot in severalty to each tenant, his just share of the lands, 12. 1831, c. 25, s, 1. 13. 1831, c. 25, S. 2. 454 PARTITION. [Chap. LXXXV. partition of such lands. according to the value of the interest he has in all the lands de- scended or devised to him, by the laws of the several states respectively in which they are situate, pokfcommisi'' ^^- "^^^ court, making such interlocutory decree, shall issue sioners. a commissiou to five respectable freeholders in this or in any state, ^"^^Lfn^Ilc where land may lie, unconnected by blood or interest with the in making a parties, directuig the said commissioners, or any three of them, to make partition between the co-tenants, plaintiffs and defendants in said bill, and to assign each his respective share in value, in sev- eralty, in any tract or tracts in any or all the states, having respect to the value of the interest he has under the laws of the several states, and before making such allotment the said commissioners shall make a valuation of all the lands held by the co-tenants, by descent or devise, in all the said states ; and where they cannot, without injury to the value of some shares, make an exact division of the lands, the said commissioners shall have power to charge the more valuable dividend or dividends with the sum of money, to be paid to the tenant in severalty of a less valuable dividend, to make an equality of partition ; and the said commissioners, or any three of them, shall report their proceedings on said comiinission, as they may be directed, and said report shall contain a valuation of all the estate in the lands in this and the other state or states, with respect to the laws of each state, and the division among the co-tenants, according to such valuation, and the court may confirm such report, or, on sufficient cause shown, may correct and alter, or may set it aside and order a new commission, and the court may on motion allow each commissioner a sum not exceeding three dollars per day for his services, and, where any sum is charged upon a more valuable dividend, the court may direct, if the tenant taking such a dividend in severalty be an infant, or, if otherwise, it seem to the court equitable, that the sum charged shall not be paid until a future day, and may direct that the same shall bear interest at any rate not greater than the interest by law allowed in this State : Provided always^ that the tenant of the larger dividend may discharge himself from accruing interest by paying the whole amount due, at any time ; and the sum due from the greater divi- dend shall be a charge on the land, into whose hand soever it may comCj although it may be taken without notice, and the court shall, upon the confirmation of any report of the commissioners, make a final decree ; and where all the parties are within the jurisdiction of this court, the court shall, by the usual proceedings in equity,, direct and compel the said parties to execute and deliver deeds and assurances, suflicient, by the laws of this State and the other states, to give the partition made full force and vahdity in all the states ; and in case any of the said parties are under such disabili- ties that they cannot execute such assurances, or are without the jurisdiction of the courts of this State, and so cannot be affected by their process, then the court, upon receiving evidence from the plaintiffs, that by a law or laws of the other state or states, in which the parts of the lands, described in the bill, without this State What final de cree the court may make. 14. 1831, c. 25, s. 3. Chap. LXXXV.] partition. 455 lie, the decree can have effect on the said lands, shall direct the decree to be enrolled in the records of the court, and a copy of it shall be registered in the register's office of all the counties within this State, where any of the lands he, and a copy shall be also furnished to the plaintiff or other party interested, certified accord- ing to the acts of congress, prescribing the manner in which the records and judicial proceedings of one state shall be proved, so as to have full faith and credit in another state, to the end that it may be carried into effect, as to the lands without this State, in the state or states in which the said lands may be, by such court and ■ in such manner as said state or states by a law, made substantially in accordance with this act of assembly, may direct ; and on sat- isfactory evidence being made to the court in this State, as afore- said, that the decree may have full effect by such law of such other state, the court in this State shall, by its deci-ee, declare the par- tition in the land in this State to be final and conclusive, and the said decree shall be firm and irreversible, as hereinafter provided, and shall on registration, as aforesaid, pass the title to the tenants in severalty to the lands in this State, in the same manner as if all „„ , , , •' . 1-1 1 • • T • 1 • o When a de- the lands mentioned m the decree were situate withm this otate. cree for parti- 15. In any case, where real estate may be partly in this State ^io^ ^ another , ,.-' , 1111 state may be and partly in another state or states, and the deceased person, enforced in from whom it was derived by descent or devise, was at the time ^his state. of his death a resident in some other state, or was a resident of none of the states, in which he held lands, and in this last case, the lands, of which he was seized in this State, were of less value than the lands of which he was seized in any one other state, the courts of record in such state, in which such deceased person had his residence at his death, or in which he held lands of greater value than those he held in this State, shall have full power and authority, under any law passed by the legislature of such state, substantially in accordance with this act of assembly, to decree partition of the lands in this State, together with those within the territory of such other state or states, in the same manner as if the whole real estate were within the jurisdiction of such court, and in the same manner as the courts in this State are directed and authorized to do by the preceding section of this act, as to the lands of deceased persons resident here at their death, or having lands of greater value here than in any other state or states, in respect of the lands in such state, and in case any person, having an interest in the final decree made as aforesaid in another state, as to lands in this State, shall within twelve months after the same may be entered up in the said courts in said state, produce the record and proceedings of such courts of record, certified according to the acts of congress before referred to, to a superior court of equity in this State, where any of the lands in this State lie, it shall be the duty of the court, on petition in writing ex parte, in such case, to order such proceedings to be entered of record in said court of this State by the proper officer, and to order that the said decree shall be of the same force and validity, as if it had 15. 1831, c. 25, s. 4. 456 PARTITION. [Chap. LXXXV. been a decree of the court in this State, in which the petition is filed, upon an original bill and regular proceedings had thereon ; and such decree of the court of such other state, and the proceedings , on it by petition in the superior court in this State, confirming it and giving it validity, being enrolled in the said court of this State, and registered in all the counties where the lands lie in this State, shall pass said lands in this State according to said decree, and shall vest estates in severalty therein declared, as to said lands, in the same manner and with the same effect in law, as if the lands in this State had been so allotted on a petition for partition, ac- cording to the provisions of the former sections of this act. Court to judge 16. Where a copy of a decree and proceedings of a suit in any Tr^staie^ has''^'^^^^^^^ ^^^'•^ ^^^^^ ^® produced, as in the preceding section of this passed a law in act is authorized, and also when it is necessary for a court of equity thii°'^'"'^^ *° to be certified, that its decree of partition of lands, without this State, and within the territory of another state or states, can have effect in said state, it shall be competent for the court of equity, before which the existence of a law in such other state, in con- i'ormity with this act, is to be proved, to judge whether any act of the legislature of such state has been passed, and whether it be in conformity with this law, and to that end to receive either the acts of the legislature of such state, printed by authority, or a copy duly certified under the acts of congress in such cases made. Time allowed l'^' On an Original bill under the twelfth and fifteenth sections to femes covert, of^ this act, as against feyne coverts.^ infants, persons non compos inans, c. ^^i^ntis, and against all parties, against whom judgment shall be taken pro confesso on publication, the final decree shall be entered up with a reservation in favor of such party, against whom judg- ment was taken pr-o confesso to file his answer, within three years after the final decree, to have said decree corrected or reversed, and with like reservations to have the same so reversed or correct- ed as to feme coverts, infants and persons non compos, within three years after their several disabilities removed, and, after the time saved by said reservation shall have expired, said final decree as against all such persons and those claiming under them, and all other persons, parties and previes to the decree, after three years from and after the enrolment of the same, shall be irreversible by petition for rehearing, or bill of review, or other proceedings in equity ; and any suit by bill, under the twelfth and fifteenth sec- tions of this act, may be removed into the supreme court for hear- ing, upon affidavit as in other cases in equity, and the final decree in any such suit, shall be subject to an appeal to said supreme court. How a parti- 18. When any two or more persons shall be entitled, as tenants afm-operty^""^" common, to any ncgro or negroes, or other chattel property, and among tenants any one or all shall be desirous to have a division of the same, it may" be"made ^^^^^^ ^^^^ ^^^7 ^^ lawful for such person or ])ersons to file a petition in the county or superior court, for that purpose, under the same 16. 1831, c. 25, s. 5. 17. 1831, c. 25, s. 6. 18. 1829, c. 17, s. 1. Chap. LXXXV.] partition. 457 rules and regulations as are prescribed in the other cases of peti- tion, and if a division can be had without a sale of said negroes or other chattel property, then the court may appoint three freehold- ers, unconnected with the parties by consanguinity or affinity, who, first being duly sworn, shall divide such property as nearly co- equally as possible, and allot to each tenant in common his or her share in severalty, and make report to court as directed, and, if such report be confirmed by the court, a decree or judgment shall be entered accordingly and vest in each tenant in common his or her share in severality. 19. Whenever a division of such negroes, or other chattel prop- When personal erty, cannot be had without injury to some of the parties interested, ^eTold^oTa^ and a sale thereof may be deemed necessary by the court, it shall dmsion. be the duty of the court to order a sale of the same, and the clerk of the court in which said petition may be filed and order of sale made, or some other fit person to be appointed by said court, shall sell the said negroes, or chattel property held in common, after giving thirty days' notice in three or more public places in the county by pubhc advertisement, and the deed of said clerk or per- son so appointed shall be deemed and taken as good and sufficient to convey, to the purchaser of said property at such sale, such title, interest and estate in the said negroes or other chattel prop- erty sold, as the respective tenants in common or joint tenants had ; and the clerk, or person appointed as aforesaid, shall report to the court, from which the decree of sale issued, all his proceedings in such case, acd the court shall secure to such tenant in common or joint tenant, his or her ratable share in severalty of the proceeds of such sale. 20. Whenever a petition is filed under the provisions of the two Court may ap- last sections, and either party concerned may be an infant, or per- ^°an\o IT^' son non compos mentis^ it shall be lawful for the court, in which infant, &c. the petition may be filed, to appoint a guardian for such party, should there be no regular guardian. 21. The freeholders appointed to make division, or the clerk of Compensation the court or other person appointed to make a sale of negroes, or J^oide'rs,'^ clerk other chattel property, held in common, shall be entitled to com- or other com- pensation for their services, to be judged of by the court and taxed in the bill of costs, all of which shall be paid by the parties to said petition in such manner as the court may deem just. 19. 1829, c. 17, s. 1.— 1830, c. 39. 20. 1830, c. 39. 21. 1829, c. 17, s. 2, amended. nussioner. Note. — References to Adjudged Cases. Sect. 1. Anders vs. Anders, 2 Dev. 529. Wynn vs. Tunstall, 1 Dev. Eq. 23. Niceiar vs. Barbrick, 1 Dev and Bat. 257. Sect. 7. Strudwick vs. Ashe, 3 Murph. 207. Hickstall vs. Powell, 4 Hawks, 216. Sect. 8. -Ex parte Dozier's heirs, 1 Dev. Eq. 118. Bryan I's. Bryan, ib. 47. VOL. I. 58 458 PATROL. [Chap. LXXXVI. CHAPTER 86. PATROL. AN ACT CONCERNING THE APPOINTMENT AND DUTIES OP A PA- TROL IN EACH COUNTY. Section 1. County courts to appoint a patrol committee, who shall employ a pa- trol — Proviso that the county courts may also employ a patrol. 2. Penalty on the patrol committee for refusing to act. 3. Duties and powers of the patrol. Section 4. County courts to adopt rules for the regulation of the patrol. 5. Patrol committee may discharge pa- trollers, and appoint others. 6. Penalty on patrol for refusing to act. 7. Compensation to patrol. 1„ Be it enacted hy the General Assembly of the State of J^orth Carolina, and it is hereby enacted by the authority of the same, County courts "phat it shall be the duty of the county court of each county, to appoint a . •' , r i i ii patrol commit- should the court deem it necessary, at the nrst court that shall tee, who shall j-jappen after the first day of January, in each and every year, or patrol. any subsequent court, to appoint a patrol committee of three per- ' sons, in each captain's district in said county, whose duty it shall be to employ a patrol of such number of persons, as they may Proviso that think nccessary to patrol their district : Provided, that nothing coui^ts"may herein contained shall be construed to prevent the county courts also appoint a from appointing such patrol as they may deem proper. Penalty on the 2. Any pcrson, appointed one of the patrol committee, and patrol commit- who shall refuse or neglect to discharge the duties imposed by the tract! '^^"^ preceding section, shall be subject to a penalty of twentyfive dol- lars, to be recovered on motion to the court by the prosecuting officer of said county, and, when recovered, to be paid over to the county trustee, to form a fund in aid of the tax in support of the patrol. Duties and ^- ^^ ^^^^^^ ^^ ^^^^ ^^^J o^ the patrol to visit the negro houses in powers of the their respective districts, as often as may be necessary, and to in- patro . njpj. g punishment, not exceeding fifteen lashes, on all slaves they may find off their owner's plantations, without a proper permit or pass, designating the place or places, to which the slave or slaves have leave to go. It shall also be the duty of the patrol to visit all suspected places, and suppress all collections of slaves ; it shall also be their duty to be diligent in apprehending all runaway negroes in their respective districts, to be vigilant and endeavor to detect all thefts, and bring the perpetrators to justice, and also all per- 1. 1830, c 16, s. 1 and 4. 2. 1835, c. 22, s. 2. 3. 1830, c. 16, s. 3.— 1S02, c. 616, s. 2.— 1794, c. 406, s. 5. Chap. LXXXVIL] pensions. 459 sons guilty of trading with slaves. The patrol thus employed, shall have such powers as may be necessary to a proper discharge of the duties herein enjoined, and if, upon taking up a negro and ■ chastising him, as herein directed, he shall behave insolently, they L may inflict further punishment for his misconduct, not exceeding ^ thirtynine lashes. 4. It shall be the duty of the several county courts, to adopt all r< / . . ^ ' J^ oounty courts necessary rules, regulations and restrictions, lor the government of to adopt rules the patrol of the respective counties, and the patrol, when appoint- [°Jjj^^f ^^|"^^' ed, shall be subject to the same, and under such fines and penalties patrol, as the said court shall fix and direct. 5. The patrol committee shall have full power and authority topatroi commit- dis charge any one or more of the patroUers, and employ others, ^ee may dis- at any time when they may think it expedient. lers'^ani'ap-° ' 6. Any person, who shall be appointed a patrol under this act, poi^t others. and who shall refuse or neglect to serve, shall be subject to a pen- rol'for^efus^no-' alty of twenty dollars, to be sued for in the name of the State, to act. by the patrol committee of his particular district, and when recov- ered, shall be paid over by them to the county trustee, to form a fund in aid of the tax for the support of the patrol. 7. The patrol, appointed under this act, shall receive such com- Compensation pensation for their services as may be allowed them by the county '^o P^*^™!- court, and shall also be exempted from working on the road, and from the militia service, except in times of invasion or insurrec- tion. 4. 1830, c. 16, s. 5.— 1802, c. 616, s. 1. 5. 1830, 0. 16, s. 3. 6. 1S30, c. 16, s. 6. 7. 1794, c. 406, s. 3. Note. — References to adjudged Cases. Sect. 3. Tate vs. Oneal, 1 Hawks, 418. CHAPTER 87. PENSIONS. AN ACT FOR THE RELIEF OF SUCH PERSONS AS HAVE BEEN DIS- ABLED BY WOUNDS, OR RENDERED INCAPABLE OF PROCURING FOR THEMSELVES AND FAMILIES SUBSISTENCE, IN THE MILITIA SERVICE OF THIS STATE, AND PROVIDING FOR THE WIDOWS AND ORPHANS OF SUCH AS HAVE DIED Section 1 . Pensions allowed to persons disabled in the militia service. Section 2. And to their widows and orphans. /^^^■f- c^^^- 460 Pensions al- lowed to persons dis- abled in the militia service And to their widows and orphans. PILOTS. [Chap. LXXXVIII. 1. Be it enacted by the General Assembly of the State of J^orth Carolina, and it is hereby enacted by the authority of the same, That every person, who shall come within the above description, shall apply to the court of the county in which he shall reside, which court, on such application, shall certify to the General As- sembly the distresses of such person, who shall have an allowance adequate to his relief for one year, which allowance shall be con- tinued for the next succeeding year, and so long as such court shall certify such person to continue under the description afore- said ; which order or certificate of court, being countersigned by the speakers of the General Assembly, shall be a sufficient voucher to any sheriff, collector or treasurer, paying the same, in the settle- ment of their public accounts. 2. The widows and orphans of such persons, as come within the above description, shall be entitled to obtain relief on applica- tion to the county court, in the same manner as those disabled persons before mentioned. 1. 1784, c. 199, s. 1. 2. 1784, c. 199, s. 2. CHAPTER 88. PILOTS AND COMMISSIONERS OF NAVIGATION. AN ACT TO REDUCE INTO ONE THE SEVERAL ACTS CONCERNING PILOTS AND COMMISSIONERS OF NAVIGATION. Section X. Commissioners of navigation for Cape Fear, how appointed — To ap- point a clerk. 2. Powers of commissioners. 3. Power of the said commissioners as to pilotage. 4. Harbor masters to be appointed. 5. Commissioners to appoint pilots. 6. Bond to be given by pilots. 7. Pilots may be removed for misbe- havior. 8. Penalty on persons not authorized as pilots for acting as such. 9. Commissioners to decide disputes between masters and pilots. 10. No stay of execution allowed — But appeal may be taken. Section 1 1 . Notice to be given when the rates of pilotage are altered. 12. Commissioners to prescribe the num- ber of boats for pilots. 13. Rights of the pilots as to the Main and New Inlet bars of Cape Fear. 14. Pilots to keep apprentices. 15. Penalty on pilots for not attending when requested — Proviso as to bar pilots. 1 6. Masters to pay pilots for detention. 17. Penalty on pilots for refusing or ne- glecting to go to a vessel shewing a signal. 18. Pilots entitled to full pilotage though the master refuse to take them. ,f^&-7- // */■ ^ ^ Chap. LXXXVIII.] pilots. r<^l.^ eZ /j sr Section 19. When pilots entitled to only one third fees. Rate of charge when vessel deepens or lightens. Bar pilots to have a telescope or spy- glass. What vessels exempt from pilotage. Throwing ballast, &c. into the river prohibited. Penalty on captain of a vessel from which ballast is so thrown. Duties and powers of the commis- sioners in this respect. Penalty on branch pilots for not in- forming when ballast is thrown out. Commissioners of navigation for Newbern, Washington and Eden- ton to be appointed. Power of such commissioners. Board of commissioners appointed for Ocracock — Their duty in regard to pilots — Their compensation- Oath to be taken by them. What vessels shall be compelled to take a pilot. Pilot becoming incompetent, his branch may be revoked. Commissioners of navigation for old 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. Section /^4^,/. ^Z ^x- ^/. ^i 461 32. Topsail inlet — For Bogue inlet — • Their duty and powers. Penalty for piloting without a branch. Bonds to be given by pilots. Commissioners of navigation may remove pilots — Penalty for acting after removal. Penalty on pilots refusing to go to a vessel having a signal. Pilots' pay if driven off the coast after boarding. Pilots entitled to pay if they go off to a vessel though the master will not take them. No pilotage on vessels under sixty tons burthen. Rates of pilotage for the Ocracock pilots. Rates at Old Topsail inlet. Rates for Bogue inlet. Rates of pilotage to be annexed to the branches. No slave to act as pilot over any bar. Penalty for throwing ballast into any channel. 46. How penalties and fines to be dis- posed of. 33. 34. 35. 36 37 33 39. 40. 41. 42. 43. 44. 45. 1. Be xl enacted by the General Assembly of the State of JYorth Carolina, and it is hereby enacted by the authority of the same, That at the first court of pleas and quarter sessions, to be held for Commissioners 1 r TVT TT c ■'i ^ 1 c i\r u of navigation the county oi JNew Hanover, alter the first day ot May annually, for Cape Fear, the justices of the said court, a majority being present, shall ap- ^^"^ appointed. point five discreet persons to act as commissioners of navigation and pilotage for Cape Fear river, and said commissioners are authorized and empowered to appoint a clerk, whose duty it shall be to keep a book, and record therein all the orders, rules and To appoint a proceedings of the said board of commissioners. 2. The said commissioners shall have authority, in all matters Powers of the that may concern the navigation of the said river, from Negrohead commissioners, point downwards and out of each of the inlets ; and with respect to throwing trash in the river at the town of Wilmington, and the construction of wharves, shall have a concurrent jurisdiction with the commissioners of the town of Wilmington, and the commis- sioners of pilotage, and the commissioners of the said town, shall consult together, upon the best methods of preventing any injury being done to the channel, by wharves or otherwise, opposite to the said town, and when there is no harbor master, the commissioners of pilotage, or such of them as shall reside in the town of Wil- mington, shall decide all disputes about the moving of vessels and other matters, which properly fall within the department of a har- bor master. 1831, c. 91.— 1802, c. 626, s. 1. r/84. C, 207, s. 15. 462 PILOTS. [Chap. LXXXVIII. Power of the said commis- sioners as to pilotage. Harbor master to be appointed. Commissioners to appoint pilots. Bond to be given by pilots. Pilots may be removed for misbehavior. 3. The said commissioners shall be and they are hereby autho- rized and empowered, from time to time, to make and establish such rules and regulations, respecting the arrangement and station of the pilots, and respecting the rates of pilotage, as to them shall seem most advisable and advantageous, for the navigation of said river ; and shall and may lay and impose reasonable fines and penalties, for the purpose of enforcing the execution of such rules and regulations ; and all fines annexed to said rules and regulations shall and may be recoverable, before any justice of the peace of New Hanover county, or any commissioner of navigation, in the name of the board of commissioners, who are hereby authorized to warrant therefor, and, when recovered, shall be applied to the repair of the public wharves and docks, and improvement of the channel of said river : Provided, that any person, considering him- self aggrieved by such judgment, may appeal to the next court of pleas and quarter sessions of New Hanover county, first giving security for prosecuting the appeal, in like manner as is directed bylaw upon other appeals from justices of the peace. 4. The said commissioners shall and may appoint a harbor mas- ter for the port of Wilmington, and prescribe the duties of his office, VAdio shall be entitled to receive from the master of each vessel, that shall enter said port, the sum of one dollar. 5. The commissioners of pilotage for the bars and rivers of Cape Fear, or a majority of them, are hereby authorized and em- powered from time to time, to examine as many persons as shall ofier themselves to be pilots for Cape Fear river aforesaid, and, on approving any such person to be a pilot, shall give to such person a commission, under their hands and seals, to act as a pilot for the bars and rivers, according as they shall find him quahfied. 6. Every such person, before he obtains a commission or a branch to be a pilot, shall give bond with two sufficient securities, payable to the State of North Carohna, in the sum of five hundred dollars, with condition for the due and faithful discharge of his office, which bond shall be filed with, and preserved by, the said board of commissioners, in trust for such person or persons as shall appear to be injured by such pilot, and the person, so injured, may bring suit on such bond, in the name of the State, and re- cover the damage by him sustained, and the bond shall not be void upon the first recovery, or if judgment be rendered for the defend- ant, but may be put in suit from time to time by any person, who shall be injured by a breach of its conditions, until the whole pen- alty shall be recovered. 7. Upon the misbehavior of any pilot in his office, the said commissioners, or a majority of them, shall be, and they are hereby authorized to remove such pilot from his office, by a note in writing, directed to him and. subscribed by them, and to appoint another in his stead, in manner aforesaid, and the commissioners 3. 1786, c. 262, s. 2.— 1802, c. 626, s 4. 4. 1802, c. 626, s. 5. 5. 1784, c 207, s. 2. 6. 17S4, C. 207, s. 3. 7. 1784, c. 207, s. 4. Chap. LXXXVIII.] pilots. 463 shall put up notice in writing, in all public places within the said port, or publish in some convenient newspaper, that such pilot is removed. ' 8. If any person, not authorized as a pilot for Cape Fear, in Penalty on manner as by this act directed, shall assume and take upon himself P^""*?'^®,""' '^'i' rr- r ^^ 1 1 11 1 • 1 • • 1 "I ttionzed as the oiBce oi pilot, and shall brmg, or attempt to brmg, nito the said pilots for acting river any vessel whatever, such person shall forfeit and pay the ^^ *"'^'^- sum of forty dollars, to be recovered by action of debt, one half to the person who shall sue for the same, and the other half to the commissioners of navigation for said river : Provided always^ that Proviso, it shall be lawful for any person to conduct into the port of Bruns- wick any vessel, in danger from distress of weather, or in a leaky condition, any thing herein to the contrary notwithstanding. 9. The said commissioners of navigation, a majority of whom Commissioners may form a board, shall have power and authority to hear and de- ^°{[;*s*^b^t^veeri cide in all matters of dispute between any pilot and master of a ves- masters and sel, or between the pilots themselves, respecting the pilotage ofP'^"*^^- vessels, and any one of said commissioners may issue a warrant against any master of a vessel, for the recovery of any pilotage, and against any pilot for the recovery of any demand, one pilot may have against another relative to pilotage, and for the recovery of any forfeiture or penalty, incurred by any act of the General As- sembly for regulating the pilotage of Cape Fear river, which war- rant shall be directed to the sheriff or any constable of New Han- over county, who are hereby respectively directed and enjoined to obey and execute the same, and all other process authorized by this act, and on any warrant, issued as aforesaid, any one of the said commissioners may give judgment for any sum, not exceeding sixty dollars, and may issue execution thereon, in the usual manner of issuing execution on judgments given by justices of the peace ; and any execution, so issued, shall and may be levied and satisfied, agreeably to the rules and regulations prescribed for the levy of and sale under other executions, issuing under judgments had be- fore justices of the peace as aforesaid ; and any commissioner, before whom any warrant is tried, shall have power and authority lo summon witnesses, and administer an oath, under the rules and regulations prescribed by law in cases of trials before justices as aforesaid. 10. If any Cape Fear pilot shall obtain a judgment before any No stay of ex- justice of the peace, or before any commissioner, against any mas- ecuuon allow- ter of a vessel for pilotage, compensation or detention, or against peal may be any other pilot for any forfeiture or penalty, payable to him by any '^'^'^"^• act of the General Assembly, or if any master of a vessel shall ob- tain any judgment, as aforesaid, against any such pilot for any for- feiture or penalty, made payable to him by any law of this State, there shall be no stay of execution : Provided ahoays, that if any party shall consider himself aggrieved by any judgment as afore- said, he may appeal to the ensuing court of pleas and quarter ses- 8. 1784, c. 207, s. 7. 9. 1802, c. 62G, s. 2. 10. 1S02, c. 626, s. 3. 464 PILOTS. [Chap. LXXXVIII. Notice to be given when the rates of pilot- age are altered. Commissioners to prescribe the number of boats for pilots. Rights of pilots as to the Main and New Inlet bars of Cape Fear. Pilots to keep apprentices. Penalty on pilots for not attending when requested. sions of New Hanover county, but if any judgment given against any defendant shall be affirmed in the county court, and it shall be the opinion of the said court that the said appeal was prayed for and obtained for the purpose of delay, the said court shall order and adjudge the said defendant to pay, at the rate of twenty per cent, on the amount of the original judgment, which shall be added thereto, and execution shall and may issue for the whole amount, as in other cases of judgments in said court. 11. When the commissioners of navigation for Cape Fear shall make any alteration in the rates of pilotage, they shall cause such rates to be set up in the office of the collector of the port, and shall also cause the same to be certified under their hands, and an- nexed to the several pilots' branches. 12. The commissioners aforesaid shall have power, and they are hereby authorized and required, to make known and determine, as far as occasion may require, to the pilots of the Main and New Inlet bars, how many decked boats are necessary for the attendance on them respectively, in which decked boats any number of said pilots, not exceeding three, may act and be concerned as partners and joint owners. 13. The pilots, now having branches or commissions, or who may hereafter have branches or commissions, to pilot over the Main bar, or New Inlet bars of Cape Fear river, shall be entitled to pilot and navigate vessels into port over either bar, and the pilot, w^ho shall bring a vessel into port over either bar, shall be entitled ex- clusively to navigate the same vessel out of port over either bar : Provided always, when any vessel shall be ready to go out of port, and such pilot, so exclusively entitled, does not attend to navigate the said vessel out of port, the captain or master of such vessel may employ any other pilot to navigate such vessel out of port : Provided, such other pilot, so by the captain or master to be em- ployed, shall be a branch or commissioned pilot for the bar over which such vessel is to be navigated 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 the sum of forty dollars, to be recovered before any jurisdiction having cog- nizance thereof, to the use of the pilot or pilots, who by this act would have been entitled to navigate said vessel out of port. 14. Each and every pilot of the said river, shall keep at least one apprentice, and instruct him in the art and mystery of a pilot, and each of the said pilots may keep two apprentices and no more, which said apprentices, upon being authorized by a majority of said commissioners, may pilot any vessel, which their several mas- ters are entitled to pilot, for the behoof and emolument of their said masters, without let or molestation, subject however to the same regulations as the said pilots are. 15. When any pilot of said river shall have notice from the 11. 1796, c. 470, s. 5. 12. 1796, c. 470, s. 3. 13. 1797, c. 486, s. 1. 14. 17S6, c. 262, s. 4. 15. 17S4, c. 207, s. 5.— 1796, c. 470, s. 4. Chap. LXXXVIIL] pilots. 465 master of any vessel, or other person in his behalf, to attend in piloting such vessel, and shall not go on board for that purpose without delay, the pilot having such notice shall forfeit and pay the sum of ten dollars, (unless he shall, at the time of such notice, have the actual and personal charge of some other vessel,) for each and every day's delay of the vessel which he had notice to attend, by reason of such pilot's neglect, to be recovered by a warrant under the hand of any one of the commissioners, on oath being made of the fact, (which oath any of the commissioners is hereby authorized to administer,) and to be paid to the master or owner of the vessel so detained or delayed : Provided, that no bar pilot Proviso as to shall be considered as obliged to take charge of any vessel_ out- =^'-pii°ts. ward bound, in order to pilot her over ehher of the bars, until the pilotage, to which such pilot might or would be entitled for such service, be previously paid him, or satisfactory security for the payment thereof be given him. 16. If the master of any vessel shall send for, or take on board. Masters to pay any pilot to conduct such vessel from her station to any other place V^^^^l'^' ^^- in the said river, and shall afterwards neglect or delay to remove such vessel, (wind and weather permitting,) such master shall pay unto the pilot one dollar for attending each and every day he shall be so detained ; and if any vessel, which shall be boarded by a pilot without the harbor, should happen to be blown ofFto sea by the violence of the weather, the pilot on board such vessel shall also be entitled to receive, from the master thereof, one dollar for every day he shall be at sea, until the said vessel shall be brought into port, which sum such master is hereby required to pay. 17. When any Cape Fear branch pilot shall see a vessel on the™^"';^. coast, having a signal for a pilot, or shall hear a gun or guns fired fusing omeg- off the coast, and shall refuse or neglect to go to the assistance of ™\?J°f°^° such vessel, such pilot shall, on conviction, forfeit and pay the ing a signal, sum of forty dollars, to be recovered by action of debt in any court of record in this State, the one half to the informer, the other half to the master of such vessel ; and such pilot so refusing or neg- lecting may, upon due proof being made before the commissioners of navigation, be removed by them from being a branch pilot. 18. When any master of a vessel shall refuse a pilot jo _ come Pjlg^^^ entrd^^^^^^ into, or up the Cape Fear river, or in any part of the said river to though the go out of either of the inlets, then each pilot, so refused, shall bemas^ter-fu^e entitled to the full pilotage, in the same manner as he would have been, had he been actually employed for the purpose of piloting such vessel. i i r -l When pilots 19 When any vessel shall come over the bar belore a pilot entitled to only boards her, she shall pay only one third fees for coming in, unless 0"^ third fees, when it may happen the weather is so bad, that no person can board a vessel ; in which case, if he shall hail her without the bar, he shall be entitled to full fees. 16. 1784, c. 207, s. 6. 17. 1784, c. 207, s. 10.— 1790, c. 320, s. 2. 18. 1784, c. 207, S. 8. 19. 1786, C. 262, s. 6. VOL. I. 59 466 PILOTS. [Chap. LXXXVIII. Rate of charge when vessel deepens or lightens. Bar pilots to have a tel- escope or spy glass. What vessels exempt from pilotage. Throwing bal- last, &c. into the river pro- hibited. Penalty on captain of a vessel from which ballast is so thrown. Duty and power of the commissioners in this respect. Penalty on branch pilots 20. If any vessel deepens or lightens between Wilmington and the flats, between the flats and Brunswick, or between Brunswick and fort Johnston, the pilot shall be paid for the greatest draught of water, and shall besides be entitled to demand at the rate of one dollar and twentyfive cents per day, for every day he may be de- layed in loading or unloading such vessel, in which no fraction or part of a day shall be allowed or deducted. 21 . Each Cape Fear bar pilot shall, within such convenient time as the said commissioners shall direct, furnish himself with a good telescope or spy glass, under such penalty as the commissioners shall think proper, and such spy glass shall always be taken in the boat when the pilot goes out to sea. 22. No vessel or boat, entering Cape Fear river, either by the old bar or the new inlet, under forty tons burden, shall be com- pelled to take a pilot, or pay pilotage to any person whatever, ex- cept 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 pilotage. 23. It shall not be lawful for any master of a vessel or other person to throw any stone, earth or ballast or other thing, which can be injurious to the navigation of said river, into the same, within seven miles of the town of Wilmington, except it be at such place as may be designated by the commissioners of navigation and pilotage of Cape Fear river ; and any person, guilty of a violation of this section, shall be liable to an indictment in the county or superior court of law of New Hanover county, and, on conviction thereof, shall be punished by fine and imprisonment or either at the discretion of the court. 24. The captain, master or commander of any vessel, from which any stone, earth or other ballast or any other thing, which can be injurious to the navigation of said river, may be thrown, contrary to the provisions of the preceding section, shall forfeit and pay the sum of two hundred dollars, to be recovered, in the name of the commissioners of navigation and pilotage of Cape Fear river for the time being, by action of debt in the superior court of law of New Hanover county, one half to the use of the informer, and the other half to the use of the said commissioners, for the improve- ment of the navigation. 25. It shall be the duty of the commissioners for the time being to enforce these penalties ; and all the powers and authority, now vested in the commissioners of pilotage and navigation of Cape Fear river below Negrohead point, shall be and remain in said commissioners, and shall extend up both branches of said river seven miles above said point. 26. If any branch pilot of Cape Fear river shall knowingly suf- 20. 1790, c. 320, s. 1. 21. 1790, c. 320, s. 3. 22. 1813, c. 866.— 1831, c. 65.- 23. 1833, c. 146, s. 1 and 2. 24. 1833, c. 146, s. 3. 2.5. 1833, c 146, s. 4 and 5. 26. 1784j c. 207, s, 11. -1823. c. 1222, s. land 2. Chap. LXXXVIII.] pilots. 467 fer any kind of ballast or trash, to be thrown out of any vessel into for not inform- any part of the channel of the said river, and shall not, within ten JaftTs thrown days after the commission of such offence, make information there- into the river. of to one or more of the commissioners of pilotage, such pilot shall, upon conviction, be forever rendered incapable of acting as a pilot for the said river or any part thereof. 27. Five commissioners of navigation, for each of the ports of Commissioners Nevvbern, Washington and Edenton, shall annually be chosen by ^^",^^^^^3^^^^ the freemen of the said towns respectively, entitled to vote for Washington commissioners of their towns, at the same time and in the same ^ appointed. ° manner that commissioners of the said towns are respectively elect- ed : Provided, that no person shall be eligible as a commissioner of navigation, in either of the said towns, unless he be a resident of such town and possessed of a freehold within the same. 28. The said commissioners shall have power to contract with P°^^''.°(^"^'^ ~ . . ^ , . . f. , commissioners. proper persons to examme, irom time to tune, the situation oi the Swash, and keep the same and all other channels, leading from Ocracock bar to Newbern, Washington, Edenton, Plymouth and Elizabeth city, well and sufficiently staked out, and to cause buoys and beacons to be placed, where the said commissioners shall think most convenient for the safety of vessels. 29. Levin Burress and WiUiam B. Quidley, of cape Hatteras ; Board of com- Joseph Williams, Benjamin Gaskins and George Hobbs, of Ocra- J^j£°%'/P- cock ; Alpheus Whitehurst and Valentine Robertson, of Ports- Ocracock. mouth, shall be a board of commissioners for the port of Ocracock, ^gardto mlots. whose duty it shall be to meet at Ocracock, at least three times in each year, or a majority 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 ; and such person, being so examined and found competent to take charge of any ship or vessel, as a pilot, the board aforesaid shall issue to him a branch, and receive the bond with security, under the rules and regulations prescribed by law ; and no person shall be authorized to act as a bar or swash pilot, unless he shall have a branch from said board ; the said board shall keep an of- fice at Ocracock, in which shall be filed the bonds of the pilots ; and every pilot, receiving from said board a branch, shall pay to the said board two dollars and fifty cents, of which sum, those liv- Their compen- ing on Portsmouth and cape Hatteras, shall receive ten cents per mile travelling to and from the meeting of said board, and the bal- ance shall be divided between all the members of said board : when a vacancy shall occur in said board, by death, resignation or refusal to act, a majority thereof shall appoint some suitable person to fill said vacancy, whose residence shall be at the same place where the vacancy occurred ; and said commissioners shall keep a ^ regular journal of tlieir proceedings ; and before the said commis- sioners enter on the duties of their office, they shall take and sub- ■27. 1783, c. 104 — ISOl, c. 000. 2S. V/.. 170G, c. 457, s. 3. 6. 1796, c. 457, s. 4. 7. 1765, C. 241. Chap. XCIX.] religious societies. o05 absolutely render a passage to such spring or well impracticable : Jlnd provided also, that surrounding any piece of land, through which any of the aforesaid ways shall lead, shall not subject any person to the said penalty, if a passage shall be left to the church, meeting house or place of religious public worship, of the same width at least that such w^ay was usually of. 8. No person shall bring to any place, where a congregation is No stud horse assembled for divine worship, or within three hundred yards there- P^'J^^K^®®-!?.^® r 11 -111 1 r • J n brought within ot, any stud horse or jackass, under the penalty or six dollars, to three hundred be recovered by warrant, in the name of the State, before any ^5'''^^ '^^^P^^'^^ ri -I'l T rr- •'01 a religious justice of the peace of the county in which such offence may be congregation, committed, to be applied to the use of the poor of said county : Provided, nothing herein contained shall be so construed as to prevent any person from removing his stud horse or stud horses, from one stand to another, so that he does not stop his stud horse within three hundred yards of the aforesaid place of worship. 9. It shall not be lawful for any person, who is settled with- ijuotrnot to in a mile of any church or meeting house or other place, be brought for where persons are assembled for divine worship, the keep-j^gj^^^lj^j^^ ^f ers of licensed taverns and stores excepted, to sell spirituous persons assem- liquors or other articles to persons assembled for divine service ;^Q^g"Jj^gyp_ and if any person shall bring to any church or meeting house yard, on days fixed upon for divine worship, or to any place, where per- sons are assembled for divine worship, or within half a mile of either of said places, and shall there attempt to sell or give away, on such days as aforesaid, any spirituous liquors or other articles, or shall erect any booth, harbor, or make a stand within half a mile thereof, for the purpose of selling or giving avt'ay spirituous liquors and other articles, on such days as aforesaid, each and every per- son so offending shall forfeit and pay the sum of ten dollars. 10. The eighth and ninth sections of this act are not intended ^^°{?^° l^J'^ to operate and take effect before the hour of ten in the forenoon, sections. and after the hour of four in the afternoon, where a church or meet- ing house is situated within the limits of any town, nor shall any recovery be had in pursuance of this act, unless information shall be made of the offence within ten days after it is committed. 11. If any person shall be intoxicated at a church, meetine f ®" J ^°^' ^'^" , •' ' , . , ^ ,. . ,..',. ° toxication or house or any other place appointed lor divine worship, in the time disorderly be- people shall be there assembled for the purpose of divine worship, ^h^'ne service or shall at such time and place quarrel, fight or be guilty of any other disorderly behavior, he shall forfeit and pay the sum of five dollars. 12. The penalties, incurred under this act, shall and may be ^J°)T P®'^'^^^^^* , , V • • ■ 1 • 1 I shall be re- recovered beiore any justice, within whose county the same may covered. happen, by warrant in the name of the State, to the use of the poor of the county, or by indictment ; and upon information of any such offences being made to a justice of the peace in his county, 8. 1809, c. 779, s. 1. 9. 1800, c. 564. s. 1.— 1808, c. 761, s. 1.— 1809, c 779, s. 2. 10. 1800, c. 564, s. 2. 11. 1807, c. 729, s. 2. 12. 1800, c. 564, s. 1.— 1807, c. 729, s- 2.— 1816, c. 922. VOL. I. 64 506 REPEAL OF STATUTES. [Chap. C. he shall issue his warrant against such offender, and have him or her apprehended and brought to justice. Provided the applicatiori be made for said warrant, within ten days after the offence was committed. 13. The clerk shall enter on the State docket all appeals from clerk'and pros- judgments, rendered for penalties given under this act ; and it ecuting attor- shall be the duty of the prosecuting officer to prosecute the same, who shall be entitled to the same fees, as are allowed for State prosecutions. 13. 1807, c. 779, s. 4. When appeal is taken, duty of ney Note. — References to Adjudged Cases. Sect. 6. Trustees vs. Dickinson, 1 Dev. 190. CHAPTER 100. REPEAL. OF STATUTES. AN ACT CONCERNING THE REPEAL OF STATUTES. Be it enacted by the General Assembly of the State of Jforth Carolina, and it is hereby enacted by the authority of the same, The repeal of a That the repeal of a statute shall not effect any suit or suits, brought statute not to before the repeal, for any forfeitures incurred, or for the recovery pending. of any rights accruing, under said statute. 1830, C. 44. CHAPTER 101. REPL.ETIN. AN ACT CONCERNING THE ACTION OF REPLEVIN. Section 1. Action of replevin for slaves main- tainable, in what cases. 2. Duty of clerk before issuing writ. 3. Description and value of slaves to be stated. 4 Duty of sheriff in executing the writ. / ^ i r ; G. I i i Section 5. What judgment shall be rendered if plaintiff recovers. 6. What judgment the plaintiff shall have in case of his recovery, when the slave shall have been delivered to him agreeably to the fourth sec- tion. P. Chap. CL] replevin. 507 1. Bf. it enacted by the General Assembly of the State of JsTorth Carolina, and it is hereby enacted by the authority of the same, That writs of replevin for slaves shall be held and deemed to be Action of re- sustainable, against persons in possession of such slaves, in all cases plevinfor where actions of detinue or trover are now proper : Provided, that tainable^in'^ the plaintiff, his or her agent or attorney, in such action of replev- what cases, in, shall make oath before the clerk issuing such writ, that he or she has been in the lawful possession of such slave, within two years next preceding the issuing of said writ, and that he or she has been deprived of such possession, without his or her permis- sion or consent. 2. Whenever any person shall apply to the clerk of any court in Duty of clerk this State to obtain a writ of replevin for any slave, it shall be the writ^° issuing duty of such clerk, before he issues the same, to take an affidavit from the plaintiff in such writ, or from his or her agent or attorney, of the value of such slave ; and also to take a bond, with approved security, in double the alleged value of such slave, payable to the de- fendant, and conditioned to perform the final judgment on such writ. 3. In issuing writs of replevin, the clerk shall, as nearly as may Description and be convenient, describe every slave therein demanded, and shall ^obes°ated.^^^ annex to such description a value, which shall be equal to double the sworn value of such slave. 4. The sheriff, to whose hands any writ of replevin for any slave Duty of sheriff or slaves shall hereafter come, shall forthwith take into his custody i'l executing all such slaves, and deliver them to the plaintiff in such writ, or his or her agent or attorney : Provided always, that if the defendant in such writ shall execute and deliver to the sheriff a bond, with ap- proved security, in double the amount of the sworn value of the slave or slaves, described in the said writ, payable to the plaintiffs therein, with a condition to perform the final judgment which shall be rendered thereon, it shall not be lawful for said sheriff to take such slaves from his or her possession ; but he shall return the bond so given, with the writ, to the court from which it issued. 5. If, upon the trial of such action, the plaintiff or plaintiffs shall What judg- recover, final judgment shall be rendered against the defendant and rendered^ if ^ his security, in case he shall have given a bond as required by the plaintiff re- fourth section of this act, for such value as shall be assessed by the jury upon such slave or slaves, with a condition to be discharged by the surrender of such slave or slaves demanded by the writ, and the judgment of such damages, as may be adjudged by the court, for the taking and detention of such slaves, which damages for the taking and detention aforesaid, the court shall assess double the amount assessed by the jury. 6. In case the slave, demanded in any writ of replevin, shall Whatjudgment have been taken by the sheriff and delivered to the plaintiff in such ^j^^j^^^^'^/^i^^ writ, agreeably to the fourth section of this act, then if the plaintiff case of his re- 1. 1823, c. 23, s. 1. 2. 1828, c. 28, s. 2. 3. 1828, c. 28, s. 3. 4. 1828, c. 28, s. 4. 5. 1828, c. 28, s. 5. C, 1828, c 23, s. 6. 508 REVENUE. [Chap. CII. covery when the slave shall have been de- livered to him agreeably to the fourth sec- tion. recovers hi such action, he shall recover judgment for his costs, and double the real damage assessed by the jury for the taking and detention of such slave or slaves ; but if the plaintiff in such action shall fail to recover, and a verdict be rendered for the defendant, it shall be the duty of the court, rendering judgment thereon, forth- whh to direct an issue to be tried, in v^'hich the damages, the de- fendant has sustained from being deprived of his property, shall be ascertained, and judgment shall be rendered against the plaintiff and his securities for the amount of the bond given by them, agreeably to the second section of this act, with a condition to be discharged upon payment of the amount of damages thus assessed, and all costs, for which the defendant is entitled to judgment. CHAPTEK 102. R E T E N U E • %ii'f- cL V AN ACT TO PROVIDE FOR THE COLLECTION AND MANAGEMENT OF A REVENUE FOR THIS STATE. Section 1. Tax on real estate. 2. What real estate shall be subject to taxation. 3. Entries of land subject to taxation. 4. Tax on real estate shall be a lien thereon. 5. Tax on turnpike roads and gates. 6. Poll tax — ^Proviso as to who may be exempted from poll tax. 7. Tax on stud horses and jackasses. 8. Stud horses and jackasses to be list- ed. 9. Tax on billiard tables — How to be given in and license obtained for keeping them. ^ 10. Tax on pedlers by land — Tax on pedlers by water — Persons selling books only, not to be taxed. 11. Tax on pedlers by water on the south side of Albemarle sound, ex- cept on Roanoke and Cashie. 12. Tax to be collected, though the ped- ler may rent a temporary store. 13. The comptroller to issue to the sher- iffs, blank licenses for pedlers — No license to be issued to a pedler but on a certificate from the county court. Section 14. Tax on retail merchants and jewel- lers — On wholesale and commis- sion merchants. Tax on brokers. Tax on slaves brought from another state to this State for sale. Tax on stage players, sleight of hand performers, exhibiters of curiosi- ties, &c.— Models of useful inven- tions excepted. Pedlers, stage players, &c. to exhibit their licenses to any justice or con- stable when demanded — Penalties for refusal. Duty of constables to demand a view of such licenses. Tax on retEiilers of spirituous liquor. Tax on tavern keepers. Time when the list of taxables shall be taken. 23. County courts to appoint justices to take lists — Justices to be notified of their appointment — To appoint pla- ces of taking the lists — Three jus- tices may appoint one to take lists in case of vacancy. How tax lists shall be given in. Tax lists to refer to the first day of 15. 16. 17. 18. 19. 20. 21. 22. 24. 25. nU.y. clyt-y^-y(, - ^^' — /s<.^ ^ ;/ ^s--^^- Chap. CIL] REVENUE. 509 Section April preceding — A person coining of age after that day may list him- self and pay immediately. 26. By whom the lists of absentees, tes- tators, minors, &c. shall be given in. 27. If owner fails to give in his lands, the justice may appoint a freeholder to value it. 28. In case of failure by the owner and justice, the sheriff to have the land valued by a freeholder — Duty of such freeholder. 29. Penalty on freeholders refusing to act. 30. Valuation of lands to be in dollars and cents— How town property to be given in and assessed. 31 . A tract of land lying partly in two counties, where to be given in. 32. County court to associate with the justices appointed to take the tax lists, two freeholders to form a board of valuation — Duty of the board in assessing the value of lands — Their compensation. 33. Persons failing to give in their lists, to pay a double tax — Lands of a minor, &c. not to be sold for taxes. 34. Justices appointed to take the lists, to return a copy of such lists in al- phabetical order to the next county court— Clerks to return abstracts of the lists to the comptroller— Penal- ty on the clerks for failing to do so ; and duty of the comptroller and at- torney general in regard to such failure. 35. Form of the lists to be returned by the justices. 36. Each justice to return his own lists. 37. Penalty on justices appointed to take lists, for failure of duty. 38. County courts may grant a certificate to be received by the comptroller, when the tax is overcharged. 39. Clerks to record the tax lists, and set up copies of them in the court house. 40. Penalty on a justice for receiving a list without an oath. 41. The clerks of the county courts to deliver to the sheriffs copies of the lists returned — Sheriff to proceed to collect after first of April — Penalty on the clerks for failure to deliver lists. 42. All persons employed to collect taxes must take an oath. Section 43. Sheriffs by themselves or their depu- ties, or in case of their deaths, their sureties to collect the taxes - 44. Sheriffs and their sureties to have one year to collect arrears. 45. Sheriffs to collect a double tax from those who neglect to give in their lists— Such tax, how to be ascer- tained. 46. Sheriffs to give notice by advertise- ment when they have received their lists — Penalty on sheriffs for failing to collect taxes on property not given in. 47. Sheriffs and their sureties may dis- train and sell during the additional year. 48. Lands may be distrained and sold when there is no personal property. 49. When a person is about to remove, the sheriff may proceed forthwith to levy the taxes due from him. 50. Sheriff to give ten days' notice by ad- vertisement, before he sells personal property for taxes. 51. Sheriff to advertise in some newspa- per in Raleigh, and also at the court house of his county, before he sells land for taxes. 52. Sheriff to return to the county court a list of the tracts of land to be sold, which list shall be recorded, &c. 53. To return a list of the lands sold, the name of the purchaser, &c., which shall be recorded, and a copy set up in the court house. 54. Penalty on sheriffs and clerks for failing to perform the duties en- joined in the two preceding sec- tions. 55. Sheriff to sell the land at public sale to him who will pay the taxes and costs for the smallest part. 55. The purchaser to choose his part in a compact body. 57. Persons whose lands are sold, may redeem within twelve months. 53. Purchaser to have his lands surveyed and the sheriff to execute a deed. 59. Penalty on the county surveyor for refusing — If he refuseS; another may make the survey. 60. When the land shall be struck off to the governor for the use of the Stale. 61. How the deeds of the sheriff to the governor shall be perfected — Pen- alty on the clerks for failure of du- ty in this particular. 62. Sheriff to deposit the deeds in the 510 REVENUE. [Chap. CII. Tax on real es tate. What real es- tate shall be subject to tax- ation. 63. 64. 65. 66 67, Section secretary's office— Lands so bid off, to be deemed vacant — Sheriff's oath with respect to such lands. Sheriffs to be allowed for the taxes on land bid off for the gover- nor. Persons purchasing lands sold for taxes, liable for accruing taxes — Lands to revert to the State upon the purchaser's failing to com- ply- Where a sheriff dies or goes out of office, his successor may make a deed for lands sold for taxes — What to be done by purchaser before ob- taining such deed. Sheriffs to settle with comptroller, when. Sheriffs, in their settlements, to de- signate the different sources of the taxes — Comptroller to give the sheriffs certified copies of the re- turns, to be deposited with the clerks. Sheriffs to return upon oath to the county court a list of all taxes re- ceived from merchants, &c. — Such returns to be recorded and publish- ed by the clerks. If such return cannot be made to court, it may be returned and filed with the clerk in vacation. The clerk shall give to the sheriff a copy of the return, to be by him de- livered to the comptroller — Provi- sos. Penalty on sheriffs for failing to make returns to court or to the clerk. Duty of the comptroller when he sus- pects any sheriff of making any false return or swearing falsely. Clerks, for refusing to record or to certify returns, shall be liable to in- 68. 69. 70 71 72 73. 75. 76. Section dictment for a misdemeanor in of- fice. 74. Sheriffs to render a list of persons who paid a double tax. Sheriffs to be allowed for insolvent taxables — How to obtain such al- lowance. List of insolvents to be advertised by the clerk. 77. Penalties on sheriffs for certain vio- lations of duty in relation to insol- vents. Sheriffs' oath on settling his accounts with the comptroller. Oath as to the collection of delin- quent taxes — Penalty for collecting and not accounting for delinquent taxes. Sheriff's commission for collecting taxes. His pay for time and expenses in making his settlement. Bond to be given by sheriffs for the collection of the public taxes. Clerks to furnish the comptroller with the names of the sheriffs and their sureties. Penalties on clerks for failing to fur- nish comptroller with names of sheriffs, &c. , and for failing to make certain returns. 85. Comptroller's duty when the sheriff or other accounting officer fails to settle — Duty of the treasurer in taking judgment against a default- ing officer. Summary judgment may be taken against all accounting officers. How penalties on clerks, justices and sheriffs shall be recovered. A summary judgment may be taken by the treasurer against any person indebted to the State. 78. 79. 80. 81 82 83. 84 86 within this State, siib- every hundred dollars 1. Be it enacted by the General Assembly of the State of JVorth Carolina, and it is hereby enacted by the authority of the same, That there shall be annually levied and collected, from all the real property, with the improvements thereon, ject to taxation, the sum of six cents on value thereof. . 2. All real estate held by deed, grant or lease, or by title of dower, or courtesy, or otherwise, shall be subject to the payment of public taxes, except the real estate belonging to the university of this State, and such houses, lots and other real estate as are set apart and appropriated to divine worship, or for the education of 1. 1822, c. 1129, s. 1. 2. 178-2, c. 176, s. 3.— 1786, c. 254.— 1789, c. 306, s. 3. — 1606, c. 693. Jr^ytyu- ^xyir^^^-y^^ouD c:t/L<^ . /^^ ?^ (S^ y^/. y ^. 'ir6' ■ t/. Chap. CIL] revenue. 511 youth, or the support of the poor, and except also such real pro- perty as is or shall be exempted, in any act creating a society or company with corporate powers and privileges. 3. All entries of land shall be subject to taxation like other real Entries of ^ . land subject to *^^^'*'-'^- . taxation. 4. If any person shall return, as his taxable property, any land, Tax on real es- and shall dispose thereof, before the taxes due thereon shall have {?^^ ®|'=iil ^^ a been paid, and shall have no estate to satisfy said taxes, within reach of the sheriff, the purchaser of said land shall pay the taxes due thereon, and may be proceeded against as if he had originally given in the same. 5. A tax of five dollars shall be laid on all turnpike roads where T?^^""^ ^"™"h toll is received, and on all gates, which have been or hereafter gates. may be erected across any public road in this State, which roads and gates shall be given in at the same time that real estate is given in for taxation. 6. An annual tax of twenty cents on each and every free male poll, pon tax. between the ages of twentyone and fortyfive years, and a tax of twenty cents on each and every slave poll of both sexes, between the ages of twelve and fifty years, shall be levied, collected and accounted for as hereinafter provided : Provided alioays, that the Proviso as to several county courts shall be authorized to exempt from the pay- ^erupted from mentof poll tax, such infirm free persons as they may think proper poll tax. objects ; and also the slaves disabled by bodily infirmities or void of reason, such incapacity to be judged of and certified by the county court, shall not be deemed taxable property, nor given in as such by their respective owners. 7. A tax on all stud horses and jackasses within this State, ofTaxonstud the highest sum which the owner or keeper of such stud horse or jackasses, jackass, shall ask or receive for the season of one mare, shall be levied, collected and accounted for ; and all stud horses and jack- asses, which are not stationed in any one county, and all those that may be brought from another state to stand for a less term than the season in this State, shall pay the sheriff of some county the amount of the season, as soon as the season of such stud horse or jackass shall commence, or produce a certificate from a justice of the peace from the county, from whence such horse or jackass came, (if in the State,) that such stud horse or jackass has been enlisted for taxation, and it shall be the duty of the sheriff to collect the said tax ; and on failure of the owner or keeper of such stud horse or jackass to pay the same when demanded, it may be lawful for the sheriff to distrain for the same, by seizing such stud horse or jackass, and make sale thereof for the tax. 8. All owners or keepers of stud horses and jackasses shall en- stud horses list the same for taxation, as other taxable property is enlisted, and ^^ncl jackasses on failure of such owner or keeper to enlist such stud horse and 3. 1795, c 430, s. 2. 4. 1792, c. 360, s. 6. 5. 1822, c. 1129, s. 7. 6. 1822, c. 1129, s. 9 and 10.— 1782, c. 7, s. 5 and 8 of Iredell's revisal. 7. 1821, c. 1122, s. 1. 8. 1821, c. 1122, s. 2. 512 REVENUE. [Chap. CII. jackass as aforesaid, they or either of them shall be liable to pay a double tax for such horse or jackass. Tax on billiard 9- The owner or possessor of every billiard table shall give in tables. such billiard table, in the same manner as other taxable property, and shall pay for each billiard table, a tax of five hundred dollars ; given in and and no billiard table shall be kept until such tax shall be paid to license obtain- ^j^g sheriff of the county, in which such billiard table is or may be ed lor keeping , , it i i in them. erected or kept up, and a license to erect or keep the same shall be first granted by said sheriff ; and if any billiard table is erected or kept up without such license first had and obtained, the sheriff of the county, where such table is or may be erected or kept up, shall seize and destroy the same by burning. Taxonpedlers 10. Each and every person, who shall peddle in any county in by land. [^jg State, and not on a navigable stream, goods, wares or mer- chandise, not of the growth or manufacture of this State, or any wooden clock, or the machinery or materials thereof, or jewelry, which machinery or clock shall be manufactured of materials, not of the growth, produce or manufacture of this State, shall pay to the sheriff of each and every county, in which he shall so peddle goods, wares or merchandise, or jewelry, or any wooden clock, or the machinery or materials thereof, the sum of twenty dollars on every cart, wagon or other vehicle, employed in the transpor- tation of said goods, wares or merchandise : Provided, that should two or more persons employ one cart, wagon or other vehicle to transport their goods, wares or merchandise, each and every of them shall pay the aforesaid tax on said cart, wagon or other vehi- cle by them employed, nor shall any thing in this section be con- strued to authorize two or more persons, under the pretence of being partners in trade, to peddle goods, wares or merchandise un- der the same license ; which tax shall be accounted for by the sheriff in like manner as other public state taxes ; and upon paying such tax and obtaining a receipt therefor, such person shall be au- thorized and permitted to hawk and peddle goods, wares and mer- chandise, wooden clocks, or the machinery or materials Avhich shall not be of the manufacture of this State, or jewelry as aforesaid, in such county and no other, for the term of one year thereafter ; and every person who shall peddle goods, wares or merchandise, not of the growth or manufacture of this State, except vegetables or other provisions of the produce of the United States, on any Tax on pedlers navigable waters in this State, except as excepted in the next see- by water. tion, shall pay to the sheriff of each and every county in which he shall so peddle, twentyfive dollars as a tax to the State, to be levied and accounted for as above, and, on payment thereof, shall be au- thorized and permitted to peddle goods as aforesaid, in such county and no other, for the term of one year thereafter ; and each and every person, who shall peddle in any county without having pre- viously paid the tax thereon, and having obtained a license as hereinafter directed, or who shall refuse or neglect, upon the re- quest of the sheriff or his lawful deputy, or any justice of the peace, 9. 1S22, c U29, s. 5.— 1835, c. 3, 3. 1. 10. 1822, c 1129, s 2.— 1823, c. 11S8. Chap. CIL] revenue. 513 to show a license therefor, shall pay a tax of one hundred dollars, to be collected by the sheriff of the county where such failure takes place, by distress and sale of the property of such delinquent, and to be applied one half to the use of the State, and the other half to the use of the sheriff : Provided nevertheless, that nothing in this act tooks^onl^^^iiot contained shall extend to tax persons who shall sell books only : to be taxed. ^nd provided, nothing herein contained shall exempt the persons thus licensed, from being liable to the duties imposed on those who sell goods, wares and merchandise, or wooden clocks, or the machinery or materials thereof, which shall not be of the manufac- ture of this State, at auction. 11. Any person, who shall peddle goods, wares or merchan- Tax on pedlers disc, not of the growth or manufacture of this State, except vege- sourif slde'of ^ tables or other provisions of the produce of the United States, on Albemarle the south side of Albemarle sound, and the waters emptying there- on^RoknokT in (Roanoke and Cashie excepted,) shall pay to the sheriff of each and Cashie. and every county, in which he may so peddle, the sum of five dol- lars annually as a tax to the State, to be levied, collected and ac- counted for as other taxes upon pedlers : Provided however, that nothing in this section contained shall be construed to extend to persons peddling on the land, but only those peddling on the wa- ters aforesaid. 12. The several sheriffs of the State shall collect and enforce Tax to be col- the payment of the taxes, by this act imposed upon pedlers, not- J^g^p'^^g^^^j^y withstanding the pedler may rent or procure houses for the pur- rent a tempo- pose of carrying on a temporary sale of goods. ^^''^ ®^°'^^' 13. The comptroller shallissue to the several sheriffs blank licenses The comptrol- to peddle goods within this State, who shall upon application of j^'^'-^j^g^j.^^^" any person desirous to traffic and peddle goods, countersign and blank licenses issue the same to the person so applying, upon his paying the tax- f'"'^ P®'^-®'^®' es imposed by this act, and all licenses, so issued by the comp- troller and dehvered to any sheriff, shall stand as a charge against said sheriff for the amount of said licenses, and the sheriff shall be entitled, in the settlement of his public accounts, to a credit for all licenses, by him not issued and countersigned, which he shall re- turn to the comptroller, and the comptroller shall annually issue and deliver to the members of the General Assembly, to be dehv- ered to the respective sheriffs, not less than eight licenses for each county, before the rise of the General Assembly, and should any sheriff, who shall have received any license as aforesaid, resign, or the term of his service expire, without having issued the license so dehvered to him, he shall deliver the same to his successor, and the receipt of such successor shall be allowed said sheriff in the ,^ ,. settlement with the comptroller : Provided, that it shall not be law- be issued to a ful for the sheriff of any. county to issue such license, unless the P'^'^l^r but on a • • r» CGrtiriC3.tG TTom applicant shall first dehver to such sheriff, a certified copy of an the county order from the court of pleas and quarter sessions of the county, "^oi^rt. for which the license is wanted, permitting the same to issue, which - 11. 1826, c. 5.— 1827, c. 38. 12. 1822, c. 1129, s. i6. 13. 1822, c. 1129, s. 3.— 1835, c. 17, s. 1. VOL. I. 65 514 REVENUE. [Chap. CII. order the said county court is hereby authorized and required to make, seven or more justices being present, upon satisfactory evi- dence of the good moral character of such applicant. Tax on retail 14. Every merchant or jeweller, who shall sell goods, wares merchants and and merchandise, not of the growth or manufacture of this State, in jewe ers. ^^^^ retail Store, shall pay the following tax, to wit : if the amount of his capital stock in trade (which capital shall comprehend all purchases of goods, wares and merchandise made within the year immediately preceding the first day of April,) shall be between four hundred and two thousand dollars, a tax of six dollars ; if be- tween two thousand and five thousand dollars, a tax of eight dol- lars ; if between five thousand and ten thousand dollars, a tax of twelve dollars ; if between ten thousand and fifteen thousand dol- lars, a tax of sixteen dollars ; and if the amount of his capital stock in trade as aforesaid shall be above fifteen thousand dollars, a tax of twenty dollars ; and every wholesale merchant shall pay a tax of twentyfive dollars, and every commission merchant a tax of On wholesale fifteen dollars, and every such merchant or jeweller of this State, and conrimis- leaving a store on the first day of April in each and every year, ' shall apply to the sheriff of the county, in which he shall have such store, and tender an affidavit, stating the amount of the capital stock, which he has employed in trade in such store, and shall pay the tax thereon, and shall receive from the sheriff a license to keep the same, but any merchant, unwilling to make such affidavit, may obtain such license by paying the tax of twenty dollars ; and every such merchant, keeping a store of goods, not of the growth and manufacture of this State, Vv^ithout such license, shall forfeit and pay the sum of fifty dollars, to be levied, collected and accounted for as other pubhc state taxes ; and every person, whether resi- dent or transient, who shall open such store at any time after the first day of April, shall apply to the sheriff for a hcense, which shall be granted upon such applicant giving bond and security to the sheriff to pay the tax, required by this section, on the amount of such goods, wares and merchandise, as such applicant shall sell between the time of such application, and the first day of April succeeding, under the same penalties, to be collected in the same manner as the other penalties hereby imposed ; and all wholesale and commission merchants shall take out license, in the same man- ner and under the same regulations, restrictions and penalties as retail merchants and jewellers, except that they need not tender the affidavit stating the amount of capital stock ; and it shall be the duty of the comptroller to issue to the sheriff of each county blank licenses for merchants, to be used and accounted for in the same manner as prescribed in the case of pedlers. „ 15. Every person, using the profession of a broker, either as brokers. agent, factor or princijtal, dealing in the sale of bills of exchange, or the purchase of the bills of any bank incorporated by this State, shall be subject to an annual tax of twentyfive dollars : such person, using such profession or any branch of it, shall apply to the sheriff 14. 1822, c. 1129, s. 4. 15. 1322, c. 1129, s. U, amended. Chap. CIL] revenue. 515 of the county, in which he shall intend or desire to pursue, or use such profession, and shall pay said tax, and obtain from the said sheriff a receipt therefor ; and if any person shall pursue or exer- cise such profession, not having paid such tax, he shall pay a tax of fifty dollars, to be levied, collected and accounted for as other taxes. 16. All persons, who shall bring negro slaves from another Tax on slaves state into this State for sale, shall pay to the sheriff of some one an°tger sta^ county the sum of ten dollars upon each negro slave so brought, to this state and it shall be the duty of the respective sheriffs in this State to °'' ^^ ^" collect the tax hereby imposed : but if the said person or persons shall produce to the sheriff of any one county, the certificate of the sheriff of any other county, duly authenticated under the seal of the clerk of the county, in which such sheriff resides, that he has paid the tax hereby imposed, he or they shall be permitted to pro- ceed without the payment of any further tax : and it shall be the duty of the sheriff" of each county, into which any negro slave shall be taken by any person or persons whatsoever, to seize such negro slave, until the tax hereby imposed be paid, or until he or they shall produce to the sheriff an affidavit, subscribed by him or them, before some justice of the peace within this State, duly authenti- cated by the certificate of the clerk and seal of the court of the county, setting forth that the slave or slaves so seized were not, hy him or them or any other person with his or their privity and consent, brought in evasion or elusion of the revenue laws of this State : and any person, guilty of making any false affidavit for such person, shall on conviction be deemed guilty of wilful and corrupt perjury, and the owners or possessors of all such slaves, so seiz- ed, shall pay to the sheriff all expense, that may accrue in conse- quence of seizing, keeping and feeding such slaves ; and the slaves, so seized, may be detained by the sheriff until such payment ; and in default thereof, the said sheriff may sell the same at public auc- tion, at the court house of the county, upon twenty days previous notice, which sale shall convey an absolute title to the purchaser. 17. Each and every person or company of stage players, sleight '^^°^ sle^\t of hand performers, rope dancers, tumblers and wire dancers, orof Hand'per- company of circus riders or equestrian performers, and each and [°g™'^of ^ur^^d''. every person or company, who shall exhibit artificial curiosities of hies, &c. any kind or sort, except models of useful inventions, for a reward, fui'fnlen'tLnr' shall, previously to exhibiting or performing in any county of this excepted. State, pay to the sheriff thereof thirty dollars ; and every person or company, who shall exhibit natural curiosities of any kind or sort, the sum of fifteen dollars, as a tax to the State, to be account- ed for by the sheriff as other state taxes ; and on paying such tax, the sheriff who receives the same shall give a license to exhibit in his county, which license shall contain a list of such animals or personal performances or other articles to be exhibited, and in that case such company or person shall be authorized and permitted to perform and exhibit, as aforesaid, in such county and no other, for 16. 1822, c. 1129, s. 8. 17. 1822, c. 1129, S. 6.— 1830, C. 11. 516 REVENUE. [Chap. CIL justice or con- stable, when demanded. Penalties for refusal. the space of one year thereafter ; and each and every itinerant stage player, sleight of hand performer, rope dancer, tumbler, or wire dancer, or company of circus riders or equestrian performers, or exhibitors of artificial or natural curiosities, except the exhibitors of models of useful inventions, who shall perform or exhibit in any county in this State, without previously having paid the tax herein directed, shall be liable to a forfeiture of sixty dollars, to be col- lected by the sheriff by distress and sale of the property of such delinquent, and to be apphed one half to the use of the State and the other half to the use of the sheriff. Pedlers, stage 18. It shall be the duty of all pedlers, stage players, sleight of exlubit'theii- ^"^^^nd performers, rope dancers, tumblers, wire dancers, company licenses to any of circus riders Or equestrian performers, and all exhibiters of natu- ral and artificial curiosities, to exhibit their licenses to any justice of the peace or constable, who may demand a view thereof, and if he or they shall neglect or refuse to show his or their license, when so demanded, he or they shall forfeit and pay the sum of twenty dollars for every such neglect or refusal : if any such neglect or refusal shall occur before a justice of the peace, it shall be the duty of such justice forthwith to issue his warrant, in the name of the wardens of the poor in said county, against such offender, and upon the return thereof to enter up judgment and issue execution for the said sum of twenty dollars and costs, which said sum shall be for the use of the wardens of the poor ; and if such neglect or refusal shall happen before a constable, it shall be his duty to arrest the person or persons, so neglecting or refusing, and carry him or them before some justice of the peace, who may upon warrants, issued for that purpose, give judgment and issue execution forth- with for the said sum of twenty dollars and costs, which said sum shall be one half to the use of the constable, and the other half to the use of the wardens of the poor. Provided, that in either case the defendant shall have the right to stay the execution, or appeal from such judgment, on giving security as in other cases of appeals. Duty of con- 19. It shall be the duty of all constables to demand a view of stables to de- +}-,q Jjcense of any pedler, who may be peddline: in his county, and 1113.11(1 3. VIBW 01. .*^ J 1 O ,, such licenses, a view of the license of any actors, performers or exhibiters, as aforesaid, who may act, perform or exhibit in his county, and on his or their refusing to exhibit such hcense, to prosecute for the penalty imposed by the last section. 20. Every person, who has obtained from the county court a license to retail spirituous liquors by the small measure, according to the provisions of law in such cases, shall, immediately on obtain- ing a certificate thereof from the clerk, deliver the same to the sheriff, and pay into his hands the sum of four dollars, and receive therefor a license, signed by the comptroller and countersigned by the sheriff, which said hcenses the comptroller is directed to issue blank to the several sheriffs in this State, at the same time and under the same rules and regulations and to be accounted for by Tax on retail- ers of spirit- uous liquor. 18. 1831, c. 1, s. 7 and 8. 19. 1831, c. 1, s. 9. 20. 1825, c. 1272, s. 1 and 3. Chap. CIL] revenue. 517 the sheriffs in the same manner, that the pedlers' licenses are di- rected to be issued and accounted for. 21. Every person, obtaining a license to keep an ordinary or Tax on tavern house of entertainment, according to the provisions of the law in '^^P'^''^- such cases, shall pay to the sheriff, at the time of paying other public taxes, a tax of four dollars to be accounted for as other public state taxes. 22. The last twenty working days in July, in every year, are Time when the hereby established, as the time when the lists of property required l>^|^ of*^^^- to be Hsted for taxation, shall be taken in every county in the taken. State. 23. At the respective courts of pleas and quarter sessions in County courts each county, which shall first happen after the first day of April in ,°cef to't'ake^''' every year, the justices for taking the hsts of taxable property shall lists. be appointed, and the clerks of the several courts aforesaid shall give notice thereof, with a list of the names of said justices, and justices to be of the districts for which they were appointed, in the course of the"otified of their , . , . , . •' 111 • • 1 apponitment — term, m which said appointments are made, by advertising the same to appoint at the court house. The clerks shall issue notices of such ap- pl^9«^^ oj" pointments to the sheriff of the county, who shall serve the same Usts.^ within ten days on the justices so appointed, and it shall be the duty of each of the justices so appointed to advertise, at three different places in the district, for which he is appointed, at least ten days before the days estabhshed for giving in the list of taxables, the place whereat he will attend to receive the same, and if any justice of the peace so appointed shall become incapable, die or remove out of the county, before the duties of his appointment shall be performed, then any three other justices of the county, on mav^appobr* notice of such death, incapability or removal being given them in one to take list writing by the sheriff, may and they are hereby authorized and ^'^^^^j^^ *; required to appoint some other justice of the peace to perform the duties of the person so becoming incapable. 24. The inhabitants of the respective districts in each county ^°yf l^'^ l*^*^* 1 ,1 1 1 • , 1 '^ .,,,.. r shall be given shall attend, at the time and places appointed by the justices lor in. taking the hsts of taxables, and shall return, on oath in writing to the justice appointed to receive the same, each and every tract of land, for which they are liable to pay tax in the county, stating the number of acres of each separate tract, its local situation and the improvements thereon, the number of town lots with their improve- ments, the number of free males between the ages of twentyone and fortyfive years, living in their families, also all free negroes and mulattoes between those ages living on their lands with their con- sent, the number of slaves male and female between the ages of twelve and fifty years, which to them belong, or who live in their family, said slaves to be listed in the county where they reside, all stud horses and jackasses of which they may be the owners or keepers, all the turnpike roads where toll is received, and gates 21. 1798, c. 501, s. 3. 22. 1801, C.570, s. 1. 23 1801, c. 570, s. 2. 24. 1784, c. 195, s. 1.— 1819, c. 999, S. 1.— 1825, c. 34.— 1822, c. 1129, s. 5, 7, 9 and 10.— 1821, c. 1122, s. 2. 518 REVENUE. [Chap. CII. Tax lists to re fer to the first day of April preceding. A person coming of age after that day may list him- self and pay immediately. By whom the lists of ab- sentees, testa- tors, minors, &c. shall be given in. If owner fails to give in his lands, the jus- tice may ap- point a free- holder to value it. In case of fail- ure by the own- er and justice, the sheriff to have the laud valued by a freeholder. Duty of such litjviiioiUer, across any public road in this State, and all billiard tables, and the oath to be administered by the justice, receiving such hst, shall be as follows, (viz :) " You do swear (or affirm as the case may be) that this list by you delivered, contains a just and true account of all the property, which by law you are bound to list for taxation, to the best of your knowledge and belief. So help you God." 25. The lands, town lots and slaves and other taxable properly, unless otherwise provided, required to be listed according to the preceding section, shall be such as were the property, or in the possession of their respective owners, on the first day of April in each and every year, and the free polls shall be such as were taxa- ble on that day, and in all cases, where any person shall come of age after the said first day of April, and before any election held during the year next ensuing the first day of April aforesaid, it shall be lawful for such person, then coming of age, to list himself before the sheriff or his deputy as of the said first day of April, and immediately pay the poll tax of that year, and the sheriff is hereby required to receive the same and account therefor as for other public taxes. 26. Lists of the real and other taxable estate of testators, intes- tates, minors, lunatics and persons non compos mentis and absentees, shall be returned and given in by the executors, administrators, guardians, agents and attorneys, in the same manner as the estates of other persons. 27. If any person, owning lands in any county within this State, or any non-resident, shall fail to return, either by himself or agent, to the justice appointed to take the list of taxable property in the district in which the land of such owner or non-resident may be situated, a list of his land with the number of acres, in ndanner here- in before prescribed, it shall be the duty of the said justice of the peace to appoint a freeholder, acquainted with the lands, to value the same on oath within five days, and return the valuation to the said justice. And the said freeholder shall receive a compensation of one dollar for each tract by him valued, to be levied and col- lected by the sheriff, at the time he collects the taxes on the said lands, if not previously paid by the owner, and under the same rules, regulations and restrictions. 28. When any person shall have failed, either by himself, agent or guardian, to list his lands, and the justice appointed to take the list of taxable property shall have failed to have the same assessed, according to the provisions of the last section, it shall be the duty of the sheriff, within the time prescribed for collecting the taxes, to summon one freeholder, near to or acquainted with the land, whose duty it shall be, within five days after such notification, to value said lands on oath, which the sheriff or his lawful deputy is hereby authorized to administer. And it shall be the duty of such freeholder, summoned as aforesaid, to transmit under his hand a 25. 1734, c. 195, s. 1, amended- 26. 1782, c. 176, s. 2.— 1819, c. 999, s. I. 27. 1819, c. 999, s. 9. 28. 1819, c. 999, S. 9. Chap. CIL] revenue. 519 fair transcript of such valuation to the clerk of the county court, at or before the succeeding county court, and also to deliver to the sheriff another transcript of the same, within ten days after the valuation aforesaid ; and the said freeholder shall receive a compen- sation for his services, as assessor, of one dollar for every tract of land by him assessed, to be levied and collected by the sheriff at the time he collects the taxes on said land, if not previously paid by the owner ; and the clerk of the county court shall incor- porate the returns made by the freeholders aforesaid with those made by the justices. 29. Any person, appointed or summoned, by the justices or Penalty on free- sheriff as aforesaid, to value lands, who shall refuse or fail to per- sin„"o^act" form the duties required by the two last sections, shall forfeit and pay the sum of fifty dollars, to be recovered in the name of the State to the use of the county. 30. The valuation of land and their improvements shall be made "Valuation of in dollars and cents, and town property shall be given in and as- dollars and sessed in the same manner as prescribed for other real estate. cents— How 31. When a tract of land shall be in two or more counties, the to be given in owner shall be bound to list the same in the county where he re- and assessed. sides, if he resides in either of the counties, and if not, then he ^ .^'"^'^^ ° V^^^ 1- 1 • • 1 c 1 -1 • 1 • .lying partly in may list the same in either oi the said counties ; and in case oi two counties, transmittins; a list of taxable property, from the county in which "^^'^■"'^ .'^° ^^ , , , , . ■ 2'iv6n in. the person bound to list it resides, to that in which the property is situate, the oath required to the list may be taken before any magistrate of the county, in which the person bound to return the same resides. 32. It shall be the duty of the several county courts in this County court State, at the respective terms when they appoint justices of the ^jj^j^''j^"'^|i^^ peace to take in the list of taxable property, for the year one thou- tices appointed sand eight hundred and thirtyseven, to appoint two respectable free- \°J^ ^J^ fj.ggf holders to be associated with each justice, who together with such holders to form justice shall be styled "the board of valuation." It shall be the ^j^Siu °^ ''''^' duty of the board of valuation to ascertain, as accurately as may be Duty of the practicable, the cash valuation of the land in the district to which '^°ar'i m as- they belong, and to return the same to their respective county value of lands, courts, in the manner herein prescribed : Provided, said justice and freeholders may, if they deem it necessary, call upon any per- son to testify as to the value of any tract which may be listed, and they are authorized in such case to administer an oath to any per- son so called upon. No person giving in his land for taxation shall hereafter be required to state the value thereof upon oath, and if any individual shall deem himself injured, by too high a valuation being placed upon his land by the board aforesaid, it shall be competent for the ensuing county court to reduce the same, upon motion and satisfactory proof of such allegation. The individuals comprising the said board of valuation shall annex to their respective returns the following affidavit, signed by them and certified by some justice 29. 1819, c. 999, S. 10. 30. 1S19, c. 999, S. 12. 31. 1819, c. 999, s. 11. ) 32. Amendment. Kc-assers^i , / if^S-. cl- i7. rL 520 REVENUE. [Chap. CIL Their compen- sation. Persons failing to give in their lists, to pay a double tax. Lands of a minor, &c. not to be sold for taxes. Justices ap- pointed to take the lists, to re- turn a copy of such lists m al- phabetical order to the next county court. Clerks to re- turn abstracts of the lists to the comp- troller. Penalty on the clerks for fail- ing to do so ; and duty of the comptroller and attorney general in re- gard to such failure. Form of the lists to be re- turned by the justices. of the peace : " We solemnly swear, that the foregoing valuations of land, made by us, are, in our judgment and belief, the actual value thereof in cash, and that in making the same, we have endea- vored to do equal justice to the pubhc, and to the individuals con- cerned : so help us God." And the said justice of the peace and freeholders shall each be entitled to receive the sum of one dollar per day, for each day they may be necessarily engaged in making said valuation and returns, to be paid out of the taxes levied for county purposes. 33. If any person, bound to list lands or other property, either in his own right or as executor, administrator, guardian or agent, shall fail or neglect so to do, he shall pay a double tax, to be col- lected by the sheriff out of his individual properly, notwithstanding his failure or neglect may be as representative of another ; and it is expressly declared that the lands of a minor, lunatic or person non compos mentis, shall in no case be liable to be sold for taxes. 34. The justices, appointed to take the list of taxables in each county, shall make out a fair copy of the lists of lands by them taken, in alphabetical order, with the number of acres and valuation an- nexed, and return the same, together with the list of other taxable property by them taken, to the clerk of the county court, at the next succeeding court, which may happen after the time prescribed for taking the list of taxable property, and the clerks of the several county courts are hereby required to return to the comptroller, on or before the first day of September, in each and every succeed- ing year thereafter, an abstract of such lists, showing the number of acres of land so listed, the valuation thereof, and the valuation of town property, which shall be contained in said lists. Any clerk, failing to make return of the abstract herein required, shall forfeit and pay the sum of one hundred dollars, to be recovered in the superior court of Wake county, on motion by the attorney gen- eral. And it shall be the duty of the comptroller to inform the attorney general of all such delinquent clerks, and, on the trial of the motion, the certificate of the comptroller, certifying such fail- ure, shall be sufficient evidence thereof ; the forfeiture thus recov- ered shall be paid into the public treasury of the State by the clerk of the superior court of Wake county, and on failure to do so, he and his sureties shall be liable on his bond, in a suit at the instance of the State. 35. The justices, in the lists which they shall return to the clerks of their respective county courts, shall distinguish the per- sons' names, the several tracts of land, the quantity and situation of each tract with its reasonable value, the town lots, the number of polls white and black, and the several other subjects of taxa- tion, which are required to be listed, in the following manner : 33. 1319, c. 999, s- 5. 34. 1819, c. 999, s. 7.- 35. 1784, c. 195, s. 3. -1806, c. 699, s. 3 — Amended. Chap. CIL] REVENUE. 521 s VI o m Quantity of each tract of land with its situation. V^alue of each Tract. CO O, c & o a, - s C a . CD aJ O cfl m Gates and Turn- pike Roads. 36. The several iustices, appointed to receive lists of taxa- ^f^^ J^/'?^*^® ^° *', ■*- ^ , . return, uis own bles, shall make their return of their own hsts to the county lists, courts. 37. If any justice, appointed to receive lists of taxable property, Penalty on jus- shall fail or neglect to discharge the duty of his appointment, he^ take^lists^for shall forfeit and pay two hundred dollars, to be recovered in the failure of duty, name and to the use of the State ; and if any clerk of the court of pleas and quarter sessions shall fail or neglect to make return of an abstract of the- list of taxables to the comptroller, as prescribed in the thirtyfourth section, he shall forfeit and pay one thousand dol- lars, to be sued for by the attorney general, in the name and for the use of the State. 38. Where it shall appear to the satisfaction of any of the county County courts courts of this State, that any person is charged with more land or ^rtificate t^ be polls, on his list of taxable property, than he ought to pay for, the received by the said court may order their clerk to give a certificate for the quan-^]^P''[{^g^^'^ig tity of acres and their value, or polls so overcharged, which cer- overcharged, tificate shall be received by the comptroller of the State, and be deducted by him from the amount of valuation of land or number of polls, to be accounted for by such sheriff. 39. The clerk of each county court shall record at length, in Clerks to alphabetical order, the annual returns made by the justices in his [fg'ts^ and^set up county, and the court shall make a reasonable allowance for such copies of them service, to be paid out of the county tax ; and the said clerks shall j^^^ge.^"^"^ also, at the next court after the returns of the taxable property are directed to be made, set up, in some conspicuous part of the court house, an alphabetical list of the taxables and taxable property, de- livered or reported by the persons appointed to take the list of taxable property, adding to each person's taxable property, the amount of the tax for which he may be liable, and any clerk, ne- glecting or refusing to perform the duties here required, shall, for every such neglect or refusal, forfeit and pay one hundred dol- lars, to any person who will sue for the same within six months. 40. If any justice of the peace shall receive any person's list of ?^n?i'y„°" '^ 1 , •' '' . , I . , , ■', ' -^ . justice lor re- taxable property, without taking such person s oath or amrmation, ceivinga list as the case may be, the justice so acting shall forfeit and pay one without an hundred dollars for the use of the State. 41. The clerks of the several county courts shall, within thirty days The clerks of •' ' ■' •' the county 36. 1784, c. 195, s. 5. 37. 1784, c. 195, s. 4.— 1806, c. 099, s. 3. 3S. 1803, c. 639. 39. 1784, c. 195, s. 4.— 1786, c. 255, s. 2.- 40. 1788, c. 282. 41. 1819, c. 999, s. 8.— 1822, c. 1129, s. 14. VOL. I. 66 1798, c. 506. 522 REVENUE. [Chap. CII. of April Penalty on the clerks for fail- ure to deliver lists. t)e plo courts to de- after the court to which the lists are returned, has finished its ses- sherife copies sion, deliver to the sherifis of their respective counties a fair and of the lists re- accurate copy of the returns made, in alphabetical order, designa- turned. ^j^g -^^ ^^^j^ ^opy the Separate amount of taxes, due and accruing from each species of property, and in addition thereto shall extend the aggregate amount due from each individual ; and the respective ^^TP collect '^^^^'"^^^ ^^^^^' proceed, after the first day of April in each and every after the first year, to coUect the said taxes, to be accounted for at the time and in the manner hereinafter provided for, and if any clerk shall fail or neglect to furnish said Hsts as herein directed, he shall for- feit and pay two hundred dollars to the use of the State, to be sued for by the sheriff in the name of the State. 42. Deputy sheriffs, and all other persons that shall be employ- ed by the sheriffs of any county to collect the pubhc, county and parish taxes, shall, before they enter on the collection of either of the aforesaid taxes, take an oath, in open court, or before any two justices of the peace, where such deputy sheriff, or collector may reside, faithfully and honestly to account for all moneys, that may be received by them in the capacity of collectors. 43. It shall be the duty of each and every sheriff, by himself, their deputies, his deputy or Other person appointed for the purpose, to collect the taxes in their respective counties, and if any sheriff shall die, shortly before or during the time appointed for the collection of public taxes, so that a successor in office cannot be appointed be- fore the time for collecting the taxes, in such case it shall be law- ful for their securties to proceed in the collection of said taxes ; in which business they are hereby declared to have all the power, authorities, privileges and emoluments, in and for the receipt and collection of pubhc taxes, which the sheriff deceased possessed and enjoyed. 44. The several sheriffs, and in case of their death, their sure- ties, shall have one year, from the day prescribed for the settle- ment of the public accounts, to finish the collection of the taxes they are bound by law to account for, after the expiration of which year they shall be barred from the collection of any taxes : Pro- vided always, that nothing in this section contained shall be con- strued to alter the law, directing the manner and time of the sher- iffs' accounting with the comptroller and treasurer. Sheriffs to col- 45. It shall be the duty of the sheriffs to collect the pubhc tax ^■om'those taxes, from each and every individual in their counties respectively, who neglected ^yho are hablc to pay taxes, whether their names be contained in listl^.^^ ^^ the list of taxables, delivered by the clerks or not ; and in all cases where the pubhc taxes shall be demanded of any person, whose name and taxable property are not contained in the list fur- nished by the clerk, the sheriff shall demand and receive, from each and every such person, a sura equal to double the amount, which he would have been liable to pay in case a hst of his taxa- emploj^ed to collect taxes must take an oath. Sheriffs by themselves or or m case or their deaths, their sureties to collect the taxes. Sheriffs and their sureties to have one year to collect arrears. 43. 1811, c. 813. 43. 1791, c. 334, s. 1.— 1784, c. 219, s. 44. 1300, c. 547, s. 1 and 2. 4.5. 1791, c. 334, s. 2. Chap. CIL] revenue. 523 ble property had been given in due time and according to law, and in instances where disputes shall arise, as to the amount of the tax, for which any person may be liable under this section, the papers such tax, how and records in the clerk's office shall be held and deemed sufficient to.be ascer- authority, on the part of the sheriff, to entitle them to enforce their demands by distraining or otherwise, in case the party hath, at any time within two years then last past, given a list of his or her taxa- ble property, but in cases where no such lists have been given in, an estimation in writing, under the hands and seals of one justice of the peace and three freeholders, convened for that purpose by the sheriff, shall authorize and warrant his demand to the amount of such estimation, saving nevertheless a right of appeal from the determination of such justice of the peace and freeholders to the next county court, where the matter shall be tried and fully deter- mined on in a summary way during the same term. 46. It shall be the duty of each and every sheriff, immediately Sheriffs to on receiving the list of taxable property from the clerk of his |dTerti*semen^ county, to set up at the court house an advertisement, informing when they have the inhabitants of his county that he has received such list, andifJts^^^ ^ ""^ holds it ready for inspection, and requesting them to give him any information of any land, polls, or other taxable property in said county, not given in, and any sheriff, receiving information of any Penalty on lands, polls or other taxable property not given in, and neglecting sheyiff^ for or refusing to collect and account for the same, shall forfeit and lect taxes on pay twelve hundred dollars, to be recovered, one half to the use Pfoperty not of the State and the other half to the use of the person suing for " the same : Provided^ that one thousand dollars of this fine shall not be inflicted, in any case where the sheriff shall account with the treasurer, within six months from the expiration of the time allow- ed by law for his settling with the treasurer. 47. Each and every sheriff, or, in case of his death, his sure- ^jl^^j^^^^.^^^^ ties, shall have the same power to enforce the collection of taxes may distrain by distress and sale or otherwise, during the additional year, which ^hc additbna"^ is allowed him to finish the collection of the pubhc taxes, as he year. could or might have had and used, when the said taxes became due. 48. Any person failing to pay, by himself or through others, the dis'toin^d^and public taxes to which he may be liable, in due time and according sold when to law, and having no visible personal property on which the sheriffg^^^|'^^j."° P^^' can distrain, but being possessed of lands within the county where such taxes become due and payable, it shall and may be lawful for the sheriff of such county and he is hereby required to distrain on such lands, and to sell the same, or so much thereof as shall be sufficient for the payment of the taxes due and the costs of such sale. 49. Whenever the sheriff of any county shall have reason to .'^"^^^™ f P*^""*"^ suspect that any person, whose name is or should be on the list oi move, sheriff taxable property returned by the justices, is about to remove him- ^ay proceed 46. 1796, c. 449, s. 4. 47. 1792, c. 376. 48. 1792, c. 360, s. 5. 40. 1801, C. 570, s. 3. 524 REVENUE. [Chap. CII. forthwith to self or property out of the county, the sheriff shall have power duJfrom^Mm. ^^ proceed to levy and collect the tax due from such person, immediately, before the time appointed for commencing the collec- tion of the taxes : Provided, such sheriff shall first make oath, be- fore some justice of his county, that he has just reason to beheve, that such person is about to remove himself or property out of the county, before the time of the payment of his taxes shall arrive, and obtain a certificate from such justice to that effect. Sheriff to give 50. Whenever any sheriff shall distrain any article of personal by^advertise-'^'^ property for the payment of taxes, he shall not sell the same, until ment before he ten days' previous notice of such sale, and of the amount of taxes propeny^for^ due, shall have been given, by advertisement at three or more of taxes. i\iQ most public places in the district where said taxes are due. Sheriff toad- 51. It shall not be lawful for any of the sheriffs in this State, newsmperTiT^ either by themselves or their deputies, to sell lands for their taxes, Raleigh, and until the same have been first advertised for sale in the State Gazette, court\ouse of ^v some Other newspaper published in the city of Raleigh, for the his county, be- space of one month, and also at the court house of the county land for taxes, where they are situated ; the whole of the expense attendant on which shall be chargeable on such lands, and shall be made accor- dingly ; in which advertisements shall be mentioned the situation of the lands, the streams near which or on which they lie, the estimated quantity, the names of the tenant or tenants in possession if cultivated, and the names of the reputed owners where the same can be ascertained : Provided, that no sale of lands for taxes shall take place previous to the first day of August in each year. Sheriff to re- 52. The sheriff of every county shall, at the term of the court county court a of pleas and quarter sessions of his county, next preceding the day list of the he shall fix for the sale of any lands for taxes, in open court return to^be\old '^'^ a list of the tracts of land upon which the taxes are unpaid, and which list shall which he proposes to sell for the taxes, therein mentioning the ^^ ecor e , Qwuers of eacli tract, and, if the owner be unknown, the name of the last known or reputed owner shall be mentioned, the situation of said lands, and the amount of tax thereon due, which said list shall be read aloud in open court, recorded by the clerk upon the minutes of the court, and a copy thereof shall be put up by the said clerk during the said term in the court room. To return a list 53. It shall be the duty of the sheriff, at the term of the court "^j'^^.u^'^'^® of pleas and quarter sessions of his county, next after any sale of sold tuG n3in6 ^ ' j of the pur- lands by him made for taxes, to return to said court a list of the *^*iv^M"^t*^ h n^'^^cts of land by him sold for taxes, the quantity thereof so laid off be recorded, for the tax, the name of the purchaser, and the sum due or paid to u"'^in tli^^^^^ said sheriff by said purchaser for tax and charges, which list shall house. be read aloud by the clerk in open court, shall be recorded in the minutes of the court, and a copy thereof shall be put up by the clerk during the said term in the court room. 50. 1784, c. 219, s. 3. 51. 1796, c. 449, s. 1. 52. 1819, C. in06, s. 1. 53. 1819, C. 1006, S. 2. Chap. OIL] revenue. 525 54. Every sheriff or clerk, who shall omit to perform the sev- Penalty on eral duties enjoined in the two preceding sections, shall forfeit and cie7ks foTfail- pay the sum of one hundred dollars, to be recovered by any person ing to porform suing for the same in an action of debt, and shall be liable in an Lued hrthe' action on the case for such further damages, as may be sustained by two preceding the owner of the lands, in consequence of such irregular sale. sections. 55. When any lands shall, by the above provisions, become lia- sheriff to sell ble to be sold for the taxes of the same, it shall be the duty of the the land at sheriff to set up the whole of the lands, belonging to any one per- him who will son or company, for which the taxes thereon shall be due, to be P^Y ^i^*^ *^ps Eincl costs lor sold to the person, who will pay the amount of the public, county the smallest and poor taxes, with all the charges for advertising the same agree- P*^""^- ably to law, for the smallest part thereof, and he shall strike off the quantity, so bid or offered to be taken for the amount of the taxes and charges aforesaid, to the person offering to take the smallest number of acres of the land for the taxes and charges as before mentioned. 56. The person purchasing land at any sheriff's sale for the J'^®, P^^"'^¥?^'^ taxes, as above provided, shall be at liberty to make choice of the part in a com- quantiiy of land, so struck off to him, out of any part of the land P'^*^'^ ^°^^- offered for sale, to be laid off in one compact body, as nearly in a square as can be, and adjoining to some of the outlines of such tracts or parcels of land. 57. Where land may be sold by any sheriff in this State for non- Persons whose ^ , •' , ,•'.•' „ , , lands are sold, payment of taxes, due thereon, by virtue oi law, the person or may redeem persons, their heirs, executors and administrators, owning such '^ithi"^^^^^^ lands, shall be permitted to redeem the same from the pur- chaser, at any time within twelve months after such sale is made, by paying or tendering in payment to the purchaser or to the clerk of the court, where the list of the sales shall be recorded accord- ing to the fiftythird section of this act, the full amount, which such purchaser gave to such sheriff, and twentyfive per cent, on the purchase money and all costs of sale accruing thereon. 58. W^hen any person shall purchase land sold for taxes, he Purchaser to shall, if it is not redeemed within the time mentioned in the lastl^,^J,L^lj^t?,'^ section, procure the same to be surveyed by the county surveyor, the sheriff to within six months after the time for redemption has expired, and ^^^'^"^^ '^ present to the sheriff a fair plat of such survey, with the courses and distances fairly set forth, and certified under the hand of said county surveyor, which survey shall be made at the expense of such purchaser, and the sheriff shall execute and deliver to him a deed for the same. 59. It shall be the duty of the county surveyor to survey lands Penalty on the T T r -ii-ii • ■ r r county survey-. sold lor taxes, as prescibed in the last section, upon pain of lor- or for refusing, feiting fifty dollars ; and, if he shall fail so to do within the six '^ ^{"'^f^'^'^S' months, the purchaser of said lands shall be allowed a further time of make the sur- six months to have sard lands surveyed by some other surveyor, a'"^y- 54. 1828, c 42. 55. 1798, c. 492, s. 1. 56. 1798, c. 492, s. 2. 57. 1805, c. 676 — 1S19, c. 1006, s. 3. 58. 179S, C. 492, s. 3.-1806, C. 760. 59. 1S08, c. 760. 526 REVENUE. [Chap. CII. plat of whose survey being returned to the sheriff for the time being, he shall proceed to execute title, as if the said survey had been made by the county surveyor, and his deed shall be good and val- id to all intents and purposes, as if it had been made under the provisions of the last section. Provided nevertheless, that the county surveyor shall not be liable to the penalty aforesaid, unless the purchaser apply to him to survey such lands, within two months after he is at liberty to have the survey made. When the land 60. If no person shall bid a smaller quantity than the whole of off^to^tirffov^ the lands, then the whole of the said lands so set up shall be con- ernorfor sidered as a bid for the governor, and the sheriff shall strike off the state^^ same to him accordingly, and execute a good and sufficient deed of conveyance to him and his successors in office, in manner here- inafter directed, for the use of the State. ^nh*h*^^ff^* 61. It shall be the duty of the several sheriffs respectively, to to the governor perfect the said deed or deeds to the governor, by signing, ac- f^^/V^^^^"^" knowledging and delivery thereof, in the presence of the next en- suing county court for the county, where the said land shall be, and the clerk shall accordingly register the same, in a book to be kept by him for that purpose, which registration shall be deemed valid ; and it shall be the further duty of the clerk, after having recorded the deed as aforesaid, to certify the same thereon, and deliver the same to the sheriff (who shall call on him for the same,) within twenty days after the rising of the court, at which such deed shall have been acknowledged, and the said clerk, neglecting to Penalty on the perform and deliver the same to the sheriff as aforesaid, shall be ureof dutyin liable to a penalty of one thousand dollars, to be recovered against this particular. 1^}^ by the attorney general or one of the solicitors for the State, for the use of the State, in any court having cognizance thereof, by motion, first giving to the said clerk ten days' previous notice of such motion. Sheriff to de- 62. It shall be the duty of every such sheriff, before he settles deed in Ae ^^^ account with the comptroller, to deposit such deed or deeds in secretary's of- the office of the secretary of state, who shall record and keep the same in his office for the benefit of the State ; and the said lands Lands so bid ^*-' Conveyed shall be deemed vacant lands and liable to entry ac- ofF, to be deem- cordingly : and the secretary of state shall grant a certificate to ed vacant. g^^^|^ sheriff, setting forth the quantity of land so conveyed to the governor, which certificate shall be returned by such sheriff to the comptroller ; and such sheriff, in addition to the oaths taken on Sheriff's oath his settlement with the comptroller as hereinafter provided for, ^uch landr^ ^° shall also swear that he has conveyed to the governor, in conformity to the requisition of this act, all lands by him sold for the taxes thereof, and purchased as aforesaid for the use of the State ; and if any sheriff shall fail or refuse so to do, the comptroller shall, in his report to the treasurer, charge such sheriff, so faihng or re- fusing, with the sum of two thousand dollars, and the treasurer shall recover the same for the use of the State. 60. 179S,C. 492, S. 4. 61. 1703, c. 492. s. 5. 6-2. 179S, c. 492, s. 6. , ' ■ Chap. CIL] revenue. 527 63. Each respective sheriff shall be allowed in his settlement Sheriffs to be with the comptroller, (the requisites of the three last sections being ^axeronland^^ complied with,) the amount of the tax on all lands, so purchased bid off for the for the use of the State, together with the costs of advertising and^"^*^™""^" recording,, and also shall be allowed commissions on the same, as if the money had actually been collected, and such sheriff shall also be credited, in his settlement with the county treasurer or trustee, and with the wardens of the poor, for such of the county and poor tax, as the said lands may be sold to satisfy. 64. Any person, purchasing lands sold for the taxes due thereon, Persons pur- shall be considered as taking and holding the same, subject to the ^^fl ^f J^^es taxes accruing and growing due thereon, from the first day of April liable for ac- ' next preceding the time' of his purchase : but if such person shall "jj"j| J^^.^^" fail to complete and perfect his title to said lands, according to the vert to the above provisions, such lands shall be deemed lapsed or vacant ^^^^^"P."?^ lands and to have reverted to the State, and liable to be entered failing to com- in the entry taker's office, as if the same had never been appropri- '^ ^" ated. 65. Where any sheriff shall sell any lands for the taxes due where a sheriff thereon, and die, or remove, or be out of office, before a deed or put^'of'^olace, deeds have been executed for the same, it shall be lawful for his his successor successors in office, to make and execute a deed or deeds to the deed for lands person or persons purchasing the same, if it shall appear that the ^^oW for taxes, sale was bona fide made ; Provided always^ that before any deed What to be or deeds shall be executed by the sheriff to the person or persons, chaser'^efore so claiming as purchasers of the land aforesaid, such purchaser or obtaining such purchasers shall produce to the court of the county, in which such '^^ ' lands lie, the receipt of the deceased sheriff for the purchase money, and shall also produce such other testimony, to shew that they had well and truly purchased and paid for the said lands, as may by the said court be deemed satisfactory, and shall also make it appear that they have surveyed the same, and registered a plat thereof agreeably to law, and also that they have paid the lawful taxes on said lands ; on which proof the said court may issue an order, directing the sheriff to make and execute titles for the same, and all deeds, made and executed contrary to the provisions of this section, shall be void. 66. All sheriffs and receivers of public moneys shall settle their Sheriffs to set- public accounts, or cause them to be settled, with the comptroller ^^giJ^f^Jj^™^' of this State ; the whole of which settlements, except those which now are or hereafter may be excepted by law, shall be made in the months of July, August and September in each and every year, and it shall be the duty of the comptroller, on making any such settlement, forthwith to report the sums or amount, due from such accountant, to the treasurer of the State, setting forth in such re- port (if a sheriff's account,) the net amount of each species of public tax, and the treasurer shall raise an account against each and every of such persons, and debit them accordingly. 63. 179S, c. 492, s. 7. 64. 179S, c. 492, s. 8.— 1800, c. 549. 65. 1801, C.577. 06. 1827. c, I, s. 7. 528 REVENUE. [Chap. CII. Sheriffs, in their 67. It shall be the especial duty of the several sheriffs of this desieM,te\1le^° Stale, ill making settlements of their accounts annually with the different comptroller, to designate, in a list by them to be rendered, the taxes?* ° ^ ^ different sources from which the taxes, by them accounted for, Comptroller to Were received, and the particular amount of tax from each. And give the sher- i\^q comptroller shall give the sheriffs a certified copy of the lists copies of the returned by them respectively, which said copy, it shall be the duty returns, to be of the Said sheriffs to deposit with the clerks of their respective deposited with . ^ , ,. . ^ . ■*■ the clerks. counties lor public mspection. Sheriffs to re- 68. Every sheriff shall return upon oath to the court of pleas turn upon oath ^^ quarter sessions of his county, at the term next precedine; the to the county . t. , . , , , i, , • i "^ , n r i t court a list of time at which he shall settle with the comptroller tor pubuc taxes, alUaxes re- ^ jjgj. ^^ j^jj ^^iq moneys which he may have received from taxes merchants, &c. imposed on merchants, retailers of spirituous liquors, stage play- ers, sleight of hand performers, rope dancers, tumblers, wire danc- ers, company of circus riders, equestrian performers, and all ex- hibitors of natural or artificial curiosities, setting forth in such hst the name of each person who may have paid any such tax, the amount paid by each, and for what tax ; which list the court shall „ , , ^ cause to be pubhcly read in open court ; and it shall be the duty Such returns io r J f ' . ,- • , "^ be recorded and 01 the clerk 01 the court to enter upon the minutes of said court published by g^^^j preserve such return, and to cause to be set up, in some conspicuous place in the court house, a fair copy thereof, at each and every court which may be held in his county within six months thereafter, and to furnish each grand jury with a copy of the same. If such return 69. If the term of the county court in any county shall happen, tocourt.k^^Bay before the sheriff can complete the collection of the taxes men- be returned and tioned in the above section, or from any other cause the sheriff cierkTnvaca- shall have failed to make his return to the court aforementioned, tion. then the said list of taxes may be returned and filed with the clerk of said court during vacation, which list shall be sworn to, in the presence of the clerk, before two justices of the peace, by the sheriff returning the same. The clerk shall 70. The clerk shall deliver to the sheriff a certified copy of sheriff a copy such return, which copy the sheriff shall deliver to the comptroller of such return, at the time of settling for public taxes, and the comptroller shall livered^to^'the*' charge the sheriff according to such return : Provided, that nothing comptroller. herein contained shall be so construed as to exempt any sheriff from liability for any moneys which he may have received on ac- count of such taxes, whether contained in such return or not : Provisos. And provided further, that nothing herein contained, shall be so construed as to affect in any nianner the provisions regulating the issuing of licenses, and accounting for them. Penalty on 7 1 . If any sheriff fail to make the returns to the court, or to the ing'^to make re- clerk in vacation, or shall fail to deliver a copy thereof to the turns to court comptroller, as above required, he shall forfeit and pay the sum of 67. 1822, c. 1129, s- 15. 68. 1831, c. 1, s. 1. 69. 1832, c. 11. 70. 1831, c 1, s. 2. 71- 1831, c. 1, s. 3. Chap. CII.] revenue. 529 two hundred dollars, and the comptroller shall charge him with the same in stating his account with the State, and the sheriff shall be moreover liable to pay the taxes, which he has, or ought to have collected. 72. It shall be the duty of the comptroller, when he shall have D"*y "f [he just cause to suspect that any sheriff may have made a false retm-n, when he sus- or sworn falsely in any matter relative to the collecting or account- P5.'=^!.^"y, ?h<^'^- r •'•'., , ^ in of makinff mg lor any tax, to communicate the same to the ofncer prosecu- any false re- ting in the superior court of the county, wherein the offence may f"^" °'' s^*^^r- have been committed, and it shall be the duty of such officer to ° prosecute such sheriff, if in his opinion the circumstances of the case shall justify a suspicion of such sheriff's guilt ; and in all such prosecutions, a copy of any list returned on oath, filed in the comptroller's office, duly certified by the comptroller, shall be ad- mitted as evidence in the same manner, and have the same effect as the original, unless the court, for special reasons, shall previous- ly order the original to be produced on trial. 73. If any clerk shall fail to perform the duties required of Clerks, for re- him by the sixtyeighth section of this act, or shall neglect or re- cord or to'^certi- fuse to certify any return made to him, as required by the seven-fy returns, &c. tieth section, or shall falsely certify any return duly made to to indictment him, he shall be deemed and taken to be guilty of a misdemeanor for a misde- in office, and shall, on conviction in any court having cognizance fice. thereof, for any or either of the aforesaid offences, be punished by fine or imprisonment or removal from office, at the discretion of the court. 74. All sherifi^s shall, at the time of their annual settlements, Sheriffs to render unto the comptroller, on oath, a list of the names of those p^gQ^J^^/^^ persons from whom they have recovered a twofold tax, together paid a double with the amount, specifying from what source each species of tax ^^^' arose. 75. Each and every sheriff shall, in his annual settlement with Sheriffs to be the comptroller, be allowed for insolvent taxables ; but in order to solvent tax- obtain such allowance, he must return to the court of pleas and abies. /. , . T 1 • 1 How to obtain quarter sessions oi his county, at some term preceding rus settle- such allowance. meiit with the comptroller, a list containing the names of those for whom he claims as insolvent, and he must make oath that he hath been at the dwelling house or usual place of residence of the per- son or persons therein named, and that he could not find property of such person or persons, sufficient to discharge the respective taxes or any part thereof, and that the persons contained in such list were insolvents, at the time when he ought by law to have ac- counted for such collection, and the said court shall not be at lib- erty to allow such sheriff for more insolvent taxables than he shall have thus expressly named and sworn to. 76. Such list of insolvent taxables shall be advertised by the List of insol- clerk in the court house, within ten days after its return, and any yg^jsg^ jjy ^j^g clerk. 72. 1831, c. 1, s. 5. 73. 1831, c. 1, s. 4. 74. 1791, c. 334, s. 4. 75. 1774, c. 105, s. 2.— 1786, c. 255, S. 2.— 1793, c. 385. 76. 1774, c. 105, s. 2.— 1786, c. 255, s. 2. VOL. I. 67 530 REVENUE. [Chap. CH. Penalties on sheriffs for cer- tain violations of duly in re- lation to insol- vents. Sheriff's oath on settling his accounts with the comptrol- ler. Oath as to the collection of delinquent taxes. Penalty for col- lecting and not accounting for delinquent taxes. Sheriffs com- mission for collecting taxes. His pay for time and ex- penses in making his settlement. clerk, neglecting or refusing to perform the duty hereby required, shall for every such neglect or refusal forfeit and pay one hundred dollars, one half to the wardens of the poor, the other half to the person suing for the same. 77. If any sheriff shall return to court, as insolvent, the name of any person, who is not enhsted or has actually paid his tax for that year, or shall presume to collect or receive, by himself or deputy, from any person his tax for the year for which he has been returned an insolvent, without accounting for the same, such sheriff shall forfeit and pay for every offence the sum of forty dollars, to be recovered as directed in the last section, and apphed one half to the use of the county where the offence shall be committed, the other half to the party injured who may sue for the same. 78. Each and every sheriff, previous to settling his accounts, shall take and subscribe the following oath in the comptroller's of- fice : " I, A. B., sheriff of the county of , do on this day of , one thousand eight hundred and , make oath that the list, now by me given in, is to the best of my knowledge and be- lief complete, j^erfect and entire, and contains the full amount of all moneys by me or for me received, or which ought to have been received, on account of the public taxes for the year one thousand eight hundred and , and that I have truly and faithfully endea- vored to execute and govern myself by the revenue laws of this State, without favor, affection or partiality, to the best of my knowledge and ability : so help me God." 79. In addition to the foregoing oath, said sheriff shall swear, that if he collects any delinquent tax beyond those accounted for in said settlement, he will render a true account thereof to the comptroller within one year after such collection. And if it shall be discovered that any sheriff, or any person by virtue of having been a sheriff, sliall collect delinquent taxes and not account for the same as herein required, such sheriff or other person shall be liable to pay fourfold the amount of the sum collected and not ac- counted for, to be recovered in the name of the State before any jurisdiction having cognizance thereof. SO. Each and every sheriff, as a compensation for his services in collecting and paying into the treasury, in due time and accord- ing to law, the public taxes, shall be entitled to a commission of six per centum on the net amount of the taxes of his county, to be allowed him, by way of deduction, in the settlement of his accounts with the comptroller. 81. Each and every sheriff shall also be allowed the sum of three dollars for every day he may be necessarily engaged in making his settlement with the treasurer, and shall also be allowed the sum of one dollar and fifty cents for every thirty miles of the estimated distance of going and returning home, by the most usual road, from his place of residence to the seat of government, to be 77. 1774, C. 105, s. 3. 78. 1791, c. 33-4, s. 6. 79. 1822, c. 1129, s. 13. 80. 1791, c. 334, s. 1. 81. 1827, c. 1, s. 24- Chap. CII.] revenue. 531 paid by the treasurer ; and if any sheriff shall fail to pay the whole amount of the taxes, due from him to the State at the time he makes such settlement, he shall not be entitled to any mileage nor to the three dollars a day allowed for his attendance in making the settlement. 82. Over and above the other bonds, directed by law to be giv- Bond to be en by the sheriff of each county before his entering into office, he ^fg'for the cd'- shall enter into a distinct bond with two or more sufficient sureties lection of the to be approved of by the county court, payable to the State of ^" ^^ ^^^^' North Carolina, in the sum of four thousand dollars, conditioned for the due collection, payment and settlement of the public taxes as required by law. 83. It shall be the duty of the clerks of the county courts, at Clerks to fur- the same time when they make a return of the lists of the taxable troHer with tS'e property to the comptroller, to furnish the comptroller with a certi-names of the ficate of the name of the sheriff of his county, and the sureties to l^^^^ sureties. his bond for the collection of public taxes, which certificates, when certified by the comptroller, shall, on motion of the treasurer for judgment against any such sheriff and his sureties, be deemed equally valid in law with the bond of such sheriff, and the court shall give judgment and award execution thereon accordingly. 84. If any clerk of the county court shall fail to furnish the Penalties on comptroller with such certificate, as directed in the last section, ^^^''^^^^^Jg||" he shall forfeit and pay one thousand dollars, to be recovered by comptroller the treasurer for the use of the State, and such clerk, so failing and 'w'^'h nanies of c r-- i- •!• T r 11 sheriffs, &c. lorieitmg, or lailmg to return a list of taxable property, as pre- and for failing scribed in this act, shall be considered guilty of a misdemeanor in ^g^^^gf '^'^'^^^^^ office, and on conviction shall be dismissed accordingly, and shall thereafter be held ineligible to the apj)ointment of the clerkship of his county. 85. In all cases of failure of a sheriff or ether accounting officer Comptroller's to settle his account within the time by law required, and to take 5^"^^^^^^^*^^ the oaths prescribed by law, it shall be the duty of the comptroller, accounting and he is hereby directed, to report immediately on the same, "gf^'^j^ "^^ ^ ^° allowing to the failing sheriff neither commissions nor insolvents, but adding to his account the sum of four hundred dollars, as the supposed amount of such delinquents, receipts from the tavern keep- ers and persons failing to give in their lists of taxable property. And upon such report, and such sheriff or other accounting officer failing to appear and fully pay up and finally settle for the sums, so reported against him, as directed by law, it shall be the indispensa- ble duty of the treasurer, and he is hereby required to take iudg- l^"ty of the •1 11 ri 1 11 11 treasurer m raent, without delay, tor the several sums or balances, due the taking judg- State agreeably to such report, against the sheriff and his sureties, ment against or against such other accounting officer and his sureties, and it is gcer. ° hereby declared that in all cases of delinquency of sheriffs or other accounting officers, the comptroller's certificate shall be held and 82. 1784, c. 219, s. 6. S3. 1737, C. 2C9, s. 3. 84. 1806, c. 699, s. 3. I 8.5. 1827, c. 1, s. 7 and 8. 532 REVENUE. [Chap. CII. deemed sufficient testimony for the court and jury to found their verdict on. Summary judg- 86. No citation or other warning shall be required or held merits may be necessary, preparatory to the taking judgment against any dehn- all accounting cjucnt sheriff or other collecting revenue officer, but the delinquency officers. of all such officcrs shall be and the same is hereby declared to be held and deemed good and sufficient notice, and shall be so con- sidered by the courts in this State as well for the officers them- selves as for their sureties ; and on all motions at the instance of the treasurer by the attorney general, in behalf of the State, for arrears of taxes or other money due the State, judgment shall be granted as well against the principals as their sureties, whhout fur- ther notice accordingly. How penalties q>j ^ ^jj penalties imposed by this act upon clerks, sheriffs and onclerks.jus- . . r j v • • ./ r c r ^ ^ • tices and sher- justices lor delmqucncies in the periormance ol any oi the duties cowred^^^^ '^^" here enjoined, where the penalties are declared to be solely for the use of the State, shall be recovered in any court of record by the treasurer, on motion of the attorney general, or any of the solicitors of the State, on the certificate of the comptroller stating such de- linquency, which certificate the comptroller is hereby required to furnish to the treasurer immediately after the first day of October in each year, ^d^^'^ent ma ^^* "^^^ public treasurer shall have power and authority to move be taken by the for judgment against any person, indebted to the State, in any treasurer court of rccord in this State, in the same manner and under the against any ' •■ i • r i personindebted same rules and regulations, which are prescribed m cases oi de- to the states - jj^q^gj^^ sheriffs, and the said court shall render judgment and ' award execution, though the amount thereof may be within the jurisdiction of a justice of the peace. 86. ir93, c. 383, s. 9. 87. Amendment. 88. 1822,0. 1150. Note. — References to Adjudged Cases. Sect. 10. Cowley vs. Brittain, 2 Hawks, 204. Wynn vs. Wright, 1 Dev. and Bat. 19. Sect. 24. Jones vs. Justices, 2 Murph. 157. Sect. 39. Rhodes vs. Buie, 2 Dev. 524. Sect. 43. Fitts vs. Hawkins, 2 Hawks, 394. Lenoirrs. W^ellbom, 1 Dev. 451. Dickey vs. Alley, ib. 453. Slade vs. Governor, 3 Dev. 365. Sect. 48. Douglass vs. Short, 3 Dev. 432. Sect. 51. Stanly vs. Smith, 1 Car. Rep. 511. Sect. 55. Jones vs. Gibson, N. C. Term. R. 41. Sect. 60. Register vs. Bryan, 2 Hawks, 17. Sect. 61. Avery vs. Rose, 4 Uev. 549. Sect. 86, State vs. , 1 Hay. 28. Oats vs. Darden, 1 Murph. 500. S» j^ gut's eel Slatirtes Chap. CIIL] rivers and creeks. 533 CHAPTER 103. RIVERS AND CREEKS. AN ACT CONCERNING THE IMPROVEMENT OF RIVERS AND CREEKS AND TO PREVENT OBSTRUCTIONS TO THEIR NAVIGATION. Section 1. County courts may appoint commis- sioners to examine rivers and creeks and make improvements. 2. Overseers to be appointed, and their duty. 3. Justices may direct flats, &c. to be purchased or hired. 4. Penalty for felling trees in the rivers, &c. 5. Powers of the county courts of John- ston, Wayne, &c., as to the river Neuse. 6. Duty of the county solicitors in re- gard to the improvement of rivers and creeks — Powers of the superior court in regard to it. Section 7. Pees of solicitors for their services under this act. 8. County courts may lay off their riv- ers, &c. into districts — One fourth of the river to be left open for the passage of fish. 9. Penalty for erecting a stand, &c. in the part of the river required to be left open for the passage offish. 10. Penalty for setting nets across the main channel of any navigable stream — To erect stand, &c. to pre- vent the passage of fish indictable — Proviso as to seines. 11, Slaves violating the last section to be whipped. 1, Be it enacted by the General Assembly of the State of JYorth Carolina, and it is hereby enacted by the authority of the same, That a majority of the justices of the court of pleas and quarter sessions of the several counties of this State shall have full power and authority, in open court, where any inland river or stream shall run through the county, or be a line of the county, of which they are justices, by order of court to appoint commissioners to view and inspect such river or stream, and make out a scale of the ex- pense of labor, with which the opening and clearing the same will be attended ; and if the same shall be deemed within the compass of the abilities of the county, and that the burden will be compen- sated by the utility, to appoint and authorize the commissioners to proceed in the most expeditious manner, in opening and clearing the same, by taking such hands off the making or repairing the public roads, as the court shall permit, and direct to be appropri- ated to such work, which hands shall be placed under overseers in companies, every overseer and company to have a distinct portion of such rivers or streams laid off by the court. 2. The overseers shall be appointed by the county court, and it shall be the duty of the clerk to issue a notice, expressing therein the name of the stream, the distance the overseer is to work there- 9 County courts may appoint commissioners to examine rivers and creeks and make improve- ments. Overseers to he appointed, and their duty. 1. 1784, C.227, s. 16.— 1785, c. 242, s. 1.— 1796, c. 460, s. 1.— 1790, c. 331, s. 2. 2. 1809, c. 782, s. 3.— 1312, c. 845, s. 1, 2 and 3.— 1813, c. 859, s. 1 and 2.— 1796, c. 460, s. 2.— 1784, c. 227, s. 16. 534 RIVERS AND CREEKS. [ChAP. CIII. Justices may direct flats, &c. to be purchased or hired. Penalty for felling trees in the rivers, &c. Powers of the county courts of Johnston, Wayne, &c. as to the river Neuse. on, and the hands appointed to work under him, and of the sheriff to serve the same upon them, under the same rules as notices are issued and served upon overseers of the roads ; and the overseers and hands aforesaid, 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 pen- alties, imposed by law upon overseers and hands working upon the public roads ; and no overseers or hands, appointed to open and cleanse navigable rivers and streams, shall be compelled to work on public roads. 3. The justices, appointing the commissioners aforesaid, shall have full power and authority, where the same shall appear to them to be necessary and expedient, to direct the commissioners to pur- chase or hire a flat with a windlass and the appurtenances, neces- sary to remove loose rocks and other things, which may by such means be more easily removed, and allow the same flat, windlass and appurtenances to be paid for out of the county tax : Provided, nothing herein contained shall affect private property. 4. If any person or persons shall obstruct the free passage of boats, by felling trees or by any other means whatever, he or they so offending shall be liable to be indicted, and upon conviction shall be fined at the discretion of the court. 5. It shall and may be lawful for the justices of the courts of pleas and quarter sessions of the counties of Johnston, Wayne, Lenoir and Craven, seven justices being on the bench, at the first court which shall be held for their respective counties after the first day of July, yearly, to appoint and lay off, in convenient dis- tricts, all the inhabitants of their counties, respectively resident within such distances from the river Neuse, as the respective coun- ty courts shall appoint, and above Spring garden on both sides of the said river, and to appoint for each district some person properly qualified as overseer, who shall cause all the persons, within the district so allotted him, who are liable to work on public roads, to work at least six days in each and every year on the said river Neuse, unless the county courts shall otherwise direct ; when he shall cause that they be employed in cutting into proper lengths and removing all logs, and in removing all brush and other obstruc- tions to the navigation, under the penalty of twentyfive dollars for failure or neglect, to be recovered and applied as fines and forfeit- tures incurred by overseers of roads ; and all and every person, liable to work as aforesaid, who shall fail, when summoned or warned (agreeably to the custom in working on roads,) to appear with such tools, as the overseer shall direct, and work accordingly, shall forfeit and pay the sum of one dollar for each day he shall fail or neglect, to be recovered and applied as fines for failing to appear and work on pubhc roads : Provided hoicever, that nothing contained in this section shall be so construed, as in any wise to abridge or interfere with the rights and privileges of the Neuse River Navigation Company. 3. 1785, c. 242, s. 2. 4. 1796, c. 460, s. 2. 5. 1823, c. 1197. I Chap. CIIL] rivers and creeks. 5S5 6. It shall be the duty of the county solicitor for each and every Duty of the county, through any part or on the borders of which any stream to "s"in regard may pass, to inform himself of the laws, whether private or pubhc, to the improve- made for the improving the navigation of such stream or streams, ^d^creets'^'^^ and where the power of carrying such laws into effect is vested in the county courts, to apply to the court, of which he is solicitor, at the first term thereof w^hich shall be held after the annual election of sheriff, to make the necessary orders and appointments for effecting the object of such law or laws, and if such court shall fail or refuse to make such orders and appointments, it shall be the duty of such solicitor to make a record on the State docket of his application, and appeal thereon to the next superior court of law to be held for such county, when it shall be the duty of the solicitor of the supe- rior court, or person acting as such, to apply to the judge of the Powers of the superior court to make such orders and appointments, as may be ne- ppenor court I ^ ^ i- -i- -' •/ ^ jji rsffSLrd. to it- cessary for carrying such laws into effect ; and to enable the judge to obtain such information as he may need to govern him in making such orders and appointments, he is hereby empowered to call upon the clerk, sheriff, grand jurors, petit jurors, or any other person who may be attending the court, for any information which it may be in his power to give touching the subject, and to make all such orders and appointments as by the laws county courts may be em- powered to make, which orders, when made, shall be in all respects as obhgatory as though they had been made by the county court. 7. The county and superior court solicitors shall respectively be Fees of solic- entitled to the same fees, for any application either of them may ^*°''^. *°'' ^'^^J'" make under this law, as they are now allowed for prosecuting any this act. indictment in said courts, to be paid out of the moneys collected for county uses, in the county where such application is made. 8. The county courts of pleas and quarter sessions shall be and Countj^ courts they are hereby empowered to appoint commissioners to examine ^jg^.^*^^ °^ and lay off the rivers in their county, and where the river is a &c. into di's- boundary between two counties, to lay off the river on the side of ^"'^^®' the county appointing such commissioners ; and further, such commissioners, in laying off the rivers, shall allow three fourths of such river for the owner or owners of the same, for the purpose of erecting stops, dams and stands, and one fourth part, including the deepest part of the river and creeks, they shall leave open for One fourth of the passage of fish, marking and designating the same in the best jefipp^enfoi- the manner they can ; and where any mill or mills are built across any passage of fish. such river, and slopes are or may be necessary, commissioners shall be appointed as above, who shall layoff such slope or slopes, and determine the length of time such shall be kept open ; and such commissioners shall and they are hereby required to return, to their respective county courts, a plan of such falls, dams and other parts of rivers, as may have been thought necessary to survey as above. 9. All and every person, who shall hereafter erect any stand, fre".tina^'^ 6. 1809, c. 782, s. 1. 7. 1809, c 782, s. 2. 8. 1787, c. 272, S. 1. 9. 1737. C. 272, s. 2. 536 ROADS, FERRIES, ETC. [ChAP. CIV. stand, &c. in the part of the river required to be left open for the passage of fish. Penalty for set- ting nets across the main chan- nel of any nav- igable stream. To erect stand, &c. to prevent the passage of fish indictable. Proviso as to seines. Slaves viola- ting the last section to be whipped. dam, weir or hedge, in such part of the river as by this law is re- quired to be left open for the passage of fish, or who shall not make and keep open any such slope as the commissioners may judge necessary, shall forfeit and pay ten dollars for every twenty- four hours he shall keep up, erect or make any such dam, stand, weir or hedge, or dam up or stop any such slope, to be recovered by any person suing for the same, one half to his own use, the other half to be applied to the use of the county, either by warrant before a justice of the peace or in a court of law, as the case may require. 10. It shall not be lawful for any person in this State to set, or cause to be set, any net of any description across the main channel of any navigable river or creek in this State, under the penalty of forty dollars, to be recovered by any person suing for the same, to his or her own use, before any jurisdiction having cogni- zance thereof ; and if any person shall erect, so as to extend more than three fourths of the distance across the channel of such river or creek, any stand, dam, weir or hedge, or other obstructions to the passage of fish, such person so offending shall be liable to indictment, and, upon conviction, shall be fined at the discretion of the court : Provided, that nothing herein contained shall pre- vent, or be construed to prevent, any person or persons from work- ing and hauling their seines across any of the rivers or creeks, in the same manner as heretofore in use. 11. If any slave shall be guilty of the offence mentioned in the last section, without the knowledge or consent of his or her master or mistress, he or she so ofTending shall have and receive thirty- nine lashes on his or her bare back. LO. 1796, c. 454, s. 1 and 3, amended- 11. 1796, c. 454, s. 2. CHAPTER 104. ROADS, FERRIE8 AND BRIDGES. AN ACT CONCERNING THE PUBLIC ROADS, FERRIES AND BRIDGES IN THIS STATE. Section 1. What shall be public roads and fer- ries — County courts to settle ferries, and order the laying out public roads. 2. Manner in which ferries are to be settled, and public roads to be laid out, altered or discontinued. Section 3. Appeals allowed, and proceedings thereon. 4. Directions as to how roads shall be laid out. 5. Penalty on persons for turning roads contrary to law. 6. Where an overseer refuses to receive sy- Chap. CIV.] roads, ferries, etc. 537 Section a road altered or turned according to law, what proceedings may be had. 7. How persons may turn or alter roads on their own lands in certain cases. 8. County courts to appoint overseers of roads — Penalty for not serving — Not to be compelled to serve more than one year in three. 9. Clerks to furnish sheriffs with orders appointing overseers— SheriflTs to apply at the clerk's office for the same, and to serve the overseers with copies — Penalty on clerks and sheriffs for failing. 10. Overseers to summon the hands liable to work on public roads — What per- sons are liable. 11. Overseers competent to prove notice to hands. 12. No person, liable to work on public roads, to be exempt, unless exemp- ted by the county court. 13. Overseers may lay off their roads into equal parts among their hands. 14. Of what width public roads and causeways shall be. 15. Overseers may cut poles and timber and dig earth on any adjoining lands. 16. Owners of such lands may petition the county court for indemnification. 17. Overseers to make footways over swamps and runs of water, where the county court may direct. IS. Overseers to set up sign posts at the forks of roads — Penalty on over- seers for not setting up, and upon persons for removing, &c. sign boards. 19. Overseers to measure the roads within their districts, and set up mile posts. 20. Penalty on overseers for neglect of duty, or not keeping roads in re- pair. 21. Penalty on persons for erecting bars across any public road. 22. County courts may cause bridges to be erected across streams, where Section necessar}', at the expense of the county. 23. Contracts, made by the justices, for building bridges, to be binding on them and their successors. 24. Owners of water mills, situate on public roads, to keep up bridges connected with their mill dams. 25. Penalty on owners of water mills for failing to keep up bridges. 26. County courts may authorize the building of toll bridges. 27. County courts to regulate the rates of ferriage. 2S. Owners of ferries may build toll bridges at their ferries. 29. County courts may compel keepers of ferries and owners of toll bridges to give bond, &c. — How persons injured may proceed to recover on such bonds. 30. Penalty on persons not empowered, . for keeping a ferry, or transporting persons within ten miles of any ferry for pay — Proviso for persons contracting to carry the mail. 31 . Keepers of public ferries to keep up a house of entertainment at their ferries. 32. Penalty for fastening a vessel to a float bridge. 33. In what cases the county courts may order the laying out of cart ways — Proceedings for such purpose. 34. Persons, across whose lands cart ways are laid out, may erect bars or gates across the same. 35. Cart ways to be frp.e for all persons to pass. 36. Appeals allowed from orders to lay out cart ways. 37. County courts may authorize the erection of gates across public roads. 38. How a person, desirous of erecting a gate across a public road, shall pro- ceed to obtain an order for that purpose — Appeal allowed — Gates to be subject to tax. 39. Forfeitures, how to be recovered and applied. 1. Be it enacted by the General Assembly of the State of JYorth Carolina, and it is hereby enacted by the authority of the same, That all roads and ferries in the several counties in this State, that What shall be have been laid out or appointed by virtue of any act of assembly P^d'fei^ies^^ 1. 1784, e. 227, s. 1. yoL. I. 68 538 . ROADS, FERRIES, ETC. [ChAP. CIV. heretofore made, or by virtue of any order of court, are hereby County courts declared to be public roads and ferries, and that from time to time to settle ferries ^^^ gj q\\ times hereafter, the courts of pleas and quarter sessions of laying out pub- the Several counties in this State, shall have full power and author- lie roads, ity to appoint and settle ferries, and order the laying out public roads, where necessary, and to appoint where bridges shall be made, and to discontinue such roads, as are now or shall be here- after made, as shall be found useless, and to alter roads so as to make- them more useful, as often as occasion shall require. Marnier in 2. The said county courts of pleas and quarter sessions shall not ^^^^^emes appoint or settle any ferry, or order the laying out of any pubhc tied and pub- road, or discontinue or alter such roads, as now are or shall here- f V° n't* alte^r- ^^^^^ ^® made, unless upon the petition, in writing, of one or more edordis'contin- persons in the said court filed ; and unless such petitioner or peti- ^^^- tioners shall make it appear to the satisfaction of the court, that all and every such person, over whose lands the said road may pass, or whose ferry heretofore established shall be within two miles of the place, at which the said petitioner may pray the court to estab- lish a ferry, shall have had twenty days notice of the intention of fihng said petition, the court shall cause the said petition to be filed in the clerk's office until the succeeding court, and notice thereof to be posted during the same period at the court house door, at which court the justices present shall hear the allegations set forth in the said petition, and if sufficient reason be shown, the court shall have full power and authority to appoint and settle the said ferry, or to order the laying out, or to discontinue or alter the said roads, as the case may be. Appeals allow- 3, If any persons or persons shall be dissatisfied with the judg- in4'\hereon! " ment, sentence or decree, which the court may pass or pronounce on said petition, such person, so dissatisfied, may pray an ap- peal to the superior court of law of the said county, but, before ob- taining the;same, shall enter into bond with two or more sufficient securities, to be judged of by the said court, for the faithful prose- cution of said appeal, and for the faithful performance of the judg- ment, sentence or decree of the said superior court, which bond shall be made payable to the person or persons, who shall have filed said petition, or to such person or persons who shall have op- posed the same, as the case may be, and the appeal so granted shall be subject to the same rules and regulations as appeals in other cases from the county courts to the superior courts ; and the said superior courts shall proceed to hear and determine the said petition, as shall appear right and expedient : Provided neverthe- less^ that nothing in this act contained shall authorize the superior court to interfere in fixing or regulating the rates of ferriage, tolls of bridges, or the distribution or allotment of hands to work under overseers of the public roads. Directions as 4. All roads, to be hereafter laid out, shall be laid out by a jury to how roads Qf freeholders, to the greatest advantage of the inhabitants, and as shall be laid i a o out. 2. 1813, c. 862, s. 1. 3. 1813, c. 862, s. 1. 4. 1784, c. 227, s. 2. Cha.p. civ.] roads, ferries, etc. 539 little as may be to the prejudice of enclosures, which laying out, and such damage as private persons may sustain, shall be done and ascertained by the same jury on oath, which oath shall run in these words, to wit: "I, A. B., do solemnly swear, that I will lay out the road, now directed to be laid out by the court of pleas and quarter sessions, to the greatest ease and advantage of the inhabi- tants, and with as little prejudice to enclosures as may be, without favor, affection, mahce or hatred, and to the best of miy skill and knowledge: so help me God." And all damages to be hereafter .thus assessed, shall be deemed a county charge, and be defrayed, from the tax on each county, laid for contingent charges. 5. No person shall turn, alter or change any pubHc road, unless Penalty on per- in the manner above prescribed for the laying out of new roads, ?°"® fortum- / 1 • r • 1 1 \ 1 11 r 1 11 m? roads con- (except as heremaiter provided,} under the penalty ot ten dollars trary to law. for each month such road is turned out of the old course, without the permission obtained as aforesaid of the court, and the old road shall in no case be shut up, until the overseer shall certify to the court, that the new opened road is in good and sufficient order. 6. Whenever any person, by permission of the court of his where an over- county, and agreeably to law, shall have turned, altered or chang- seer refuses to ed any road, and shall tender the same to the overseer, and the altered or turn- overseer shall refuse to receive said road, upon the ground that f*^ ^'='^?'''^i°s t"* , . , , . . , ^ . 11 1 law, what pro- the said road is not in good or sumcient order, the person, mak- ceedin^s may ing such alteration in the road, if dissatisfied with the decision of '^^ ^'^'^• said overseer, may petition the court of his county, who shall ap- point three persons to examine said road, and their report as to the condition of the road shall be conclusive ; and in like manner any person liable to work on any road, or any person sending three hands to work on any road, and dissatisfied with the certificate or decision of any overseer, that a road altered or turned, or a new road opened is in good and sufficient order, may make his objec- tion to said certificate to the court of his county, at the term such certificate is returned, and said court shall appoint three persons to examine said road, and their report as to the condition of said road, shall be conclusive. 7. Any person, through whose farm or land a public road passes, How persons or may hereafter pass, may turn or alter the same, by laying off the ^^Jj. ^^""^g ^^^^ road as he proposes, so, hovi'ever, as not to interfere with the land their own of any other person, and put it in a good and proper condition as a J.^ggg ^"^ ''^^''^^'^ public highway ; but before he shall close up, or in any way ob- struct the former road, he shall apply to a justice of the peace, whose duty it shall be to summon two disinterested freeholders to attend on the premises, on a given day, who, after having taken an oath to that effect, shall together within himself, view and examine the road, as proposed to be altered or turned, and report its con- dition, and such other facts connected with the case, as may be necessary to determine, whether such alterations should be made, to the next court of pleas and quarter sessions to be held for the 5. 1784, c. 227, S. 13.— 1813, C. 862, s. 1. 6. 1817, c. 939, s. 1. 7. 1334, c. 22. 540 ROADS, FERRIES, ETC. [ChAP. CIV. county, and upon consideration the court may sanction the propos- ed aheration, or refuse it : Provided always, that the overseer of the road shall have five days' notice of the time and place of meet- ing of the justice and freeholders. County courts 8. The county courts of the several counties shall, annually and to appoint gg Qftgn as may be necessary, appoint overseers of the highways or roads. roads within their respective counties, each of whom shall serve as Penalty for not g^ch^ under the penalty of forty dollars for refusing, and shall be deemed and held liable for any neglect in working on the roads, until he shall have made return to the court of his county, and shall make it appear to their satisfaction, that he has done the duties of an overseer, as by law directed : Provided, that no overseer shall be responsible for the insufficiency of the road, of which he is ap- pointed overseer, until ten days after he shall be served with the notice of his appointment, as hereinafter directed : And provided Not to be com- always, that no person, complvine with the requisites of this act, pelled to serve , ,/,' ii j ^ t J is c a ■ . more than one shall be Compelled to serve as overseer ot a road m any county year in three, more than One year in three. Clerks to fur- 9. It shall be the duty of the clerks of each and every county wTthorders^p- court of pleas and quarter sessions, within ten days after the rise pointing over- of each court, to furnish their respective sheriffs with two copies seers. ^£ ^^^j^ order, appointing overseers of the roads, that may have Sh ff been made during the sitting of the said court. And it shall be ply at the the duty of the sheriff to apply at the office of the clerk, either by clerk's office himself or some other proper person, within ten days after the rise for ihe same, ;, , r i ^ • i i i i i n •' • ■ i and to serve 01 cach court, lor the said orders, and he shall, on receivmg them, wth^o'^^'^^'^ within twenty days, serve each person, so appointed overseer of roads, rivers or creeks, with one copy of the said orders, or leave the same at his usual habitation ; and the other copy it shall be his duty to return to the next county court happening thereafter, with the date of the service endorsed thereon, or the date when it was Penalty on left at the residence of the said overseer. And if either of the afore- clerks and ^^_^^ ggj^j clerks or sheriffs fail or neglect to perform his duty, as herein ing. specified, they or either of them shall, on conviction before any competent authority, pay for such neglect the sum often dollars. Overseers to 10. It shall be the duty of the overseers of the public roads to summon the guQimon all white males, between the aees of eighteen and fortyfive, hands liable to iriii i i (•••^i work on public and Ircc males ol color and slaves, between the agesoi sixteen and w^hat persons ^^^V J^ars, within their district, to meet, at such times and places are liable. as to them shall seem convenient, for the repairing or making such roads as shall be necessary ; and whosoever shall, upon such sum- mons, refuse or neglect the duty therein required, shall forfeit and pay one dollar per day for each person so neglecting or refusing, to be recovered of the guardian or father, if the person failing be a minor, or of the master if he be a slave : Provided, that the over- seers shall give notice to each free person, or the master, mistress or overseers of slaves, what kind of tools they and each of them 8. 1784, c. 227, s. 3 and 9.— 1786, c. 256, s. 5.— 1812, c. 845, s. 3. 9. 1812, c. 845, s. 1 and 2.— 1813, c. 859, s. 1 and 2. 10. 1784, c. 227, s. 8 and 9.— 1736, c. 256, s. 2.— 1317, c. 935, s. 1 and 3.— 1825, c. 1295, s. 2 and 3. Chap. CIV.] roads, ferries, etc. 541 shall bring and work with on the roads, at the time of summoning, and that the several persons, summoned by the overseers to work on the roads as aforesaid, shall not be liable to any fine for not ap- pearing and doing their duty, unless they shall be so summoned three days before the day appointed for working. 11. In all cases, where overseers of roads shall be compelled to Overseers com- warrant their hands for neglect or refusal to perform their duty, ^otkg\o°j,P|^^^^ such overseers shall be deemed competent witnesses to prove no- tice to them, and if any defendants shall be unable to discharge the judgment and costs that may be recovered against them, the costs of the said warrants shall be paid by the county courts : Provided, that the defendant shall first have taken the benefit of the act for the rehef of insolvent debtors. 12. No person, between the ages prescribed above for free ^o Person, li- 1 . ^ J , 1 r c 1 ^* 1 1 11 able to work on white men and slaves and tree persons ot color respectively, shall pubUc roads, to be exempted from working upon the public roads, except such |^e exempt, un- persons as are or shall be exempted by the General Assembly, or by the county by the county courts, on account of personal infirmity, of which court, the said courts, seven justices being present, shall be the sole judges, and also such as shall send three slaves or other three suffi- cient hands to work on the roads : Provided, that nothing herein contained shall be construed to exempt overseers of slaves from working on roads. 13. It shall and may be lawful for an overseer, if required by a P'^*^''^^^^ P^y majority of the workmen on the road assigned him, to lay off the roads into road in equal apartments for the ease of the laborers, who shall '^'i"^^ P^'"'*. ^, , , , anions' tlieir finish his or their part in a time agreed on between him and each hands. free person, master, mistress or overseer, and on default of any agreeing party, the overseer is hereby authorized to cause such part to be finished by the hire of other persons to do the same thereon, to tender his account, and demand payment, and, on re- fusal, to warrant for the same, and to recover the money to his own use : Provided, the time agreed upon shall not exceed ten days. 14. All roads laid off, under the provisions of this act, shall be Of what width deemed public roads, and shall be at the least twenty feet wide, aiid'rau°ewavs and where by the overseers of roads it may be deemed expedient shall be. to make or repair causeways on the same roads, they shall be at least fourteen feet wide ; and earth, necessary to raise or cover the said causeways, shall be taken from each side of the causeway equally, and so as to form a drain on each side of the said cause- way. And the overseers of public roads are hereby directed to have cut and completely cleared all stumps and runners, for the width of sixteen feet in the centre of the highways under their care, of which width necessary bridges through swamps, and over small runs, creeks or streams are directed to be made. 15. The overseers of the several roads are hereby authorized to ^^^^^j^g*^^^^ cut poles and other necessary timber, to enable them to comply timber and dig 11. 1823, c. 1287.— 1817, c. 935, s. 2. 12. 1784, c. 227, s. 8 and 9.— 1826, c. 26, s. 1 and 2. 13. 1784, C. 227, S. 10. 14. 1784,0. 227, s. 4. 15. 1786, c. 256, s.l.— 1813, c. 976, s. 1. 542 ROADS, FERRIES, ETC. [ChAP. CIV. earth on any adjoining lands. Owners of such lands may pe- tition the county court for indemnifi- cation. Overseers to make footways over swamps and runs of water, where the county court may di- rect. Overseers to set up sign posts at the forks of roads. Penalty on overseers for not setting up, and upon per- sons tor re- moving, &c. sign boards. Overseers to measure the roads within their districts and set up mile posts. with the duties enjoined them in repairing and making bridges and causeways, without incurring any penalty thereby. And when- ever earth shall be needed for raising or covering a causeway on a pubhc road, and the same cannot be conveniendy procured on either side of the causeway, it shall and may be lawful for the overseer of the road to take the earth required from any adjoining land, and he shall not be liable for any action or penalty therefor. 16. The owner of the land, thus used, may if he deem himself injured, file his petition in the court of pleas and quarter sessions of the county, wherein the causeway thus raised or covered is situate, and pray indemnification ; and it shall be the duty of the court, after a proper examination of the facts, to make the peti- tioner such compensation, out of the county funds, as shall be adequate to the injury sustained : Provided, that this and the pre- ceding section shall in no wise be construed to apply to the lands, adjoining or contiguous to the causeway, or great road, leading across Eagle's island to Wilmington. 17. It shall be the duty of the overseers of the road, in the several counties, where the county courts may so direct, to make or cause to be made and kept in repair, good and sufiicient foot- ways across all swamps and rnns of water, that may cross that part of the road, allotted to them by an order of the court of said county, for the convenience of travellers on foot ; and also to erect and keep hand rails on each side of all hollow bridges, where the county courts may direct, which may be situate on that part of said road, so allotted them by the county court. 18. All overseers of roads shall cause to be set up, at the forks of all roads within their several districts, a post or posts, with arms pointing the way of each and every road, with directions to the most public places to which they lead, with the number of miles from that place as near as can be computed ; and every overseer, who shall neglect or refuse to do and keep the same in repair, shall forfeit and pay for every such neglect the sum of ten dollars : Pro- vided, that no overseer shall be considered guilty of a neglect of the duty herein enjoined, unless he shall fail to set up the same for the space of fifteen days. And every person, who shall wantonly re- move, knock down, or deface the said arms, shall for every such offence forfeit and pay the sum of ten dollars, and be moreover liable to indictment. 19. The several overseers of the roads shall cause the public roads, within their districts respectively, to be exactly measured, where the same has not already been done, and shall, at the end of each mile, mark in a legible and durable manner the number of such miles, beginning, continuing and marking the numbers, in such manner and form as the court of the counties shall severally and respectively direct ; and every overseer shall keep up and repair such marks and numbers within his district, and every overseer, 16. 1S18, c. 976, s. 2, 17. 1817, c. 940, s. 1 and 2. 13. 1784, c. 227, s. 11.-1812, c. 846. 19. 1784, c. 227. s. 12. Chap. CIV.] roads, ferries, etc. 543 neglecting to mile mark, or to repair the mile marks within his district, according to the intent and meaning of this act, for the space of thirty days after his appointment to office, shall forfeit and pay the sum of four dollars. 20. Every overseer of roads, who shall refuse or neglect to do Penalty on his duty, as is by this act directed, or who shall not keep the roads negke^of duty and bridges clear and in repair, or let them remain uncleared or or not keeping out of repair for and during the space of fifteen days, unless hin- m lepair. dered by extreme bad weather, shall forfeit, for each and every such offence, the sum of four dollars over and above such damages as may be sustained. 21. If any person or persons whatsoever shall erect, or cause P^"^i*y oj^ P^r- 1 \ ' II- 1 1 11 sons tor erect- to be erected, across any public road, any bars, he or they soingbars across offending shall be subject to pay the sum of ten dollars, and be any public moreover liable to be indicted : Provided, that no gate nor toll bridge shall be considered as liable to the fine hereby imposed. 22. Where a bridge shall be necessary over any place, where the County courts overseer, with his assistants, cannot conveniently make it, the court j^^JaesTo^be of the county, wherein such place shall be, is hereby empowered erected across and required to contract and agree for the building, keeping and necessary at^ repairing thereof, and to levy the charge in their county ; and when the expense bridges shall be necessary over any such creek or river, which di- ° ^ ® county, vides one county from another, the court of each shall join in agreement for building, keeping and repairing the same, and the charge thereof shall be defrayed by both counties, in proportion to the number of taxables in each. 23. All and every contract, agreement and order, by the justices *-''^'^^''^^*^, of the court of any of the counties aforesaid entered into or made, justices^for^ for or concerning the building, keeping or repairing bridges, in such bnilding manner as to them shall seem most proper, shall be good against bindmg on them and their successors. them and their 24. It shall be the duty of every owner of a water mill within r, ' J , .„.•'. •' , ,. , , Owners of any county, whose mill is situate on any pubhc road, to keep at water mills, his or her expense, in such order as the county thereof may deem j^j^^"^^^ °" P"^" sufficient, all bridges that are or may be erected, or attached to keep up' *his or her mill dam, immediately over which a public road may ^g^t'd^ *^'th' run : Provided, that nothing herein contained shall be construed their mill to extend to any mill, which was erected before the laying off of '^^'^'*" any such road, unless such road was laid off by the request of the owner of said mill. 25. Every owner or owners of any such water mill, who shall Penalty on refuse or neglect to do his or their duty, as is by this act directed, water mills for or shall let remain out of repair any such bridge or bridees for the failing to keep r 1 1 11 -111- up bridges. space oi ten days, unless prevented by unavoidable circumstances, shall forfeit, for each and every such offence, the sum of twenty dollars over and above such damage as may be sustained. 20. 1784, c. 227, s. 14. 21. 1784, c. 227, S. 13. 22. 17S4, C. 227, s. 5. 23. 1784, c. 227, s. 6. 24. 1817, c. 941, s. 1. 25. 1817, c. 941, s. 2. 544 KOADS, FERRIES, ETC. [ChAP. CIV. County courts 26. It shall and may be lawful for the majority of the justices of the\iundin"^o^f ^^^ courts, through whose counties run large water courses or toll bridges, crceks, across which, from the rapidity of the water and width of the stream, it may be too burthensome to build bridges and keep them in repair by a tax on the inhabitants, if they deem it neces- sary, to contract with builders to build toll bridges or expensive causeways, for each of which, each court is hereby authorized and required to lay the toll to be paid on all persons, horses, carriages and cattle passing over the same: Provic/et/, that such toll shall be gen- eral to all persons, and no person shall be exempt therefrom. And the revenue arising therefrom for such a number of years, as the said courts may agree upon, shall be granted unto the builders of said bridges, their heirs and successors, for the building thereof, which bridges, being built under the direction of the said courts, and the revenue arising from the toll thereof so granted, the said builder or builders, his or their heirs or successors, shall keep in constant repair at his or their sole expense, and shall keep good and sufficient hand rails across the same ; in default of which, on conviction, they are hereby declared to forfeit all right and title to the toll allowed by the court. County courts 27. The justices of each county shall, once a year, or oftener if rates^oner- necessary, at the first court to be held after the first day of Janu- riage. ary, in each year, rate the prices of such ferries, as shall be kept within their respective counties : And any ferry keeper, who shall ask, demand or receive a greater price for ferriage, than shall be rated by the justices according to the directions of this act, shall forfeit five dollars for every offence. And every person, who lives at, or owns a public ferry in this State, and refuses to keep up such ferry, at the rates allowed by the county court, shall forfeit for every such offence the sum of five dollars. Owners offer- 28. In all cases, where the proprietor of any ferry shall prefer Tifb^'d^^^'^f building a good and substantial bridge over any water course, in- their ferries. Stead of keeping a ferry, he shall be at liberty to do so, under the same rights and in the same manner, by which the ferry is claimed and held, and under the same rules, regulations and restrictions as other toll bridges heretofore established by law : Provided nevertheless, that no more toll shall be demanded for passing any bridge, erected in consequence of this act, than is granted by law for the ferriage, unless by agreement with the county court, who are hereby authorized to grant an advance, as far as twentyfive per cent., and not more. Jlnd provided further , that in all such bridges, the proprietors shall erect a draw, where any water course is frequently and commonly used by sea vessels, or masted boats of considerable burthen. County courts 29. The courts of each and every county shall have full power may compel and authority, and they are hereby directed and required, to com- kSGDGrs oi iGr- j ^ *i j x. > ries and own- pel all persons, that now do or shall hereafter be appointed to keep ers of toll bond^&c* ^^^ 26. 1784, c. 227, s. 7.— 1817, C. 939, s. 2.— 1817, c. 940, s. 3. ' ■ 27. 1779, c. 10, s. 8 and 9 of Iredell's Rev.— C. 160, s. 2 of the New Rev. 28. 1806, c. 706. 29. 1784, c. 227, s. 15. Chap. CIV.] roads, ferries, etc. 545 a public ferry, or who shall own a bridge receiving tolls, with- in the said counties, to give bond with good and sufficient security, in the sum of one thousand dollars, payable to the State of North Carohna, with condition that he or they shall and will constantly find, provide and keep good and sufficient boats How persons or other proper crafts, or keep such bridges in good repair, as the "'J'^''^'^ "P^y 111 1 ^ 11 lie 11 1 proceed to re- case may be, and always to be well attended, lor travellers or other cover on such persons, their horses, carriages and effects, over any river or'^°^'^^- creek ; and if any person shall receive damage by any ferryman or keeper of a toll bridge not having complied with the condition of his bond, the person, receiving such damage, shall and may bring an action of debt against such ferryman or bridge keeper on such bond, in the name of the State, and recover for the non-perform- ance of the said condition so much damages, as he, she or they shall appear to have sustained, and thereupon take out execution for whatsoever shall be so recovered, and apply the same to his, her or their own use ; and it shall and may be lawful for any per- son, detained at any pubhc ferry by reason of the ferryman's not ■having sufficient boats or other proper crafts and hands, or by neglecting to do his duty, by a warrant from a justice of the peace, to recover of such ferryman the sum of ten dollars for every such default or neglect : Provided, that any such recovery shall not be deemed to bar any action for personal damages, suffered by any person or persons, by reason of the insufficiency of said ferries and boats thereon, and bridges and causeways. 30. If any person or persons, not empowered to keep ferry? ^^"^'^y °" P^''- un tj^i r x^^ sons not em- snall pretend to keep any terry, or to transport any person or per- powered, for sons or their effects for pay, within ten miles of any ferry, (being keeping a ferry, on the same river or water,) which is already, or hereafter shall be personTwithiif appointed, such person or persons, so pretending to keep ferry, or ten miles of transporting any person or persons or their effects, shall forfeit and pay. ^"^ pay the sum of two dollars, for every such offence, to the nearest ferryman, to be recovered by a warrant from any justice of the peace : Provided, that such person or persons, as may contract for pg^g^^s con- riding post, or for carrying the mail in stages, shall be authorized tracting to car- lo keep a boat and to employ hands for the sole pm-pose of trans- ^^ ^^^ ™*^^* porting the public mail, and such passengers- as may travel in the stage with the same, across any ferry or ferries without let or hin- drance. But such contractors for riding post or for carrying the mail by stage, shall not be authorized to transport any other passen- gers across, at public ferries, than such as travel by the stage, and no person or persons shall pretend to transport any other passenger for pay, at a public ferry, unless he or they are duly authorized so to do, by the court of the county in which the ferry may be, or of the county from which the passenger may be carried, under the penalty of ten dollars, to be recovered by the owner of the ferry, to his own use, as above provided. 31. All keepers of public ferries or bridges in this State, where Keepers of pub- the ferriage or bridge toll is above five cents for a man and horse, keep"p a^° 30. 1764, c. 72, S- 1.— 1787, c. 273. 31. 1767, c. 83, s. 1. VOL. I. 69 546 ROADS, FERRIES, ETC. [ChAP. CIV. house of en- shall be obliged to furnish all travellers with entertainment, at tavern thekfories^* rates, and shall take out license for that purpose ; and if any keep- er of any such public ferry or bridge shall refuse or neglect to fur- nish such entertainment, or to take out such license, such ferry or bridge keeper shall forfeit and pay, for each offence, the sum of twenty dollars, to any person who shall sue for the same. Penalty for 32. It shall not be lawful for any person to tie or make fast any seunioaT^' decked vessel to any of the float bridges of this State ; and any bridge. person, violating this section of this act, shall forfeit and pay fifty dollars, recoverable before any jurisdiction having cognizance thereof, the one half to the use of the person suing for the same, and the other half to the wardens of the poor in the county, where such bridge is situate : and where such bridge crosses a county line, the justices of either county shall have jurisdiction under this act, and the one half shall be paid to the wardens of the poor of the county, where judgment is given by the justice. In what cases 33. If any person shall be settled upon or cultivating any land, courts^may to which there is no pubHc road leading, and no way to get to and order the lay- from the Same, other than by crossing other persons' lands, and it ways. ° shall not be necessary to establish a public road, it shall be lawful for such person to file his petition in the county court, praying for a cart or wagon way, to be kept open across another person's land, leading to some pubhc road, ferry, bridge or public landing ; and Proceedings for "P°" ^"^ making it appear, to the satisfaction of the court, that the such purpose, adverse party has had twenty days notice of such his intention, the said court, seven justices being present, shall hear the allegations set forth by the petitioner, and if sufficient reason be shewn, it shall be the duty of such court to pass an order, directing the sheriff to summon a jury of twelve freeholders to go on the prem- ises, and view the same, and lay off a cart way, not less than four- teen feet wide, and assess the damages the owner of such land may sustain thereby ; and such damages, with the expense of making the road, shall be paid by the petitioner, and the way shall be kept open for the free passage of persons on horseback, carts or wagons. Provided, that if the notice aforesaid shall not have been given, the justices shall cause such petition to be filed in the clerk's office until the next court, when they shall proceed to hear and deter- mine the same. Persons across 34. Any person, across whose land, such cart way may pass, whose lands gj^^]] jjg gj liberty to erect gates or bars across the same ; and if cartways are ^ ^ , j v* ^^ ** laid out, may any person shall leave open, break down or otherwise destroy such erect bars or gg^jg qj. \)^yq^ erected as aforesaid, he shall on conviction thereof same. forfeit and pay two dollars for such offence, for the use of the per- son suing for the same, to be recovered before any justice of the peace for the county, where the offence may be committed. Cartways to be 35. Any cart way, laid off as aforesaid, for and at the request of swis^to pasF"^' ^ petitioner or petitioners for the use aforesaid, shall be free for the 32. 1819, c. 1017. 33. 1798, c. 508, s. 1.— 1822, c. 1139, s. I. 34. 1798, c. 503, s. 1 and 2. 35. 179^, 0. 508, S. 3. Chap. CIV.] roads, ferries, etc. 547 passage of any person or persons to pass. Provided, that this act shall not be construed, so as to exempt any such petitioner or pe- titioners from working on the pubUc roads, to which the court may have directed them. 36. Either party, dissatisfied with the judgment of the county jippeals ai- court in any case arising; under the thirtythird section of this act, lo^®'^ from , ,, , •' . , ° , , ■; r- • 1 ' orders to lay shall have a right to appeal to the superior court oi said county, off cart ways. under the same rules and restrictions as in other cases of appeals. 37. The several courts of pleas and quarter sessions in this County courts State, a majority of the justices of the county being present, shall thie^erection of have full power to authorize, in the manner herein prescribed, the gates across erection of gates across public roads in their respective counties. ^^ ^° '°^ ^' 38. Any person, desirous to erect a gate across a public road, How a person may file his petition in the court of pleas and quarter sessions of erecting a° gate the county, where such road lies, whereupon the court shall order across a public that publication be made until the next succeeding court, at the ceed'to obtaio'' court house or in some public place, that application has been made ^J^ order for to the court to erect a gate across a public road, describing the place P'^^pose. and name of the petitioner, and that all persons interested in the convenient travelling or transportation on said road have leave to appear and defend, demur or plead to said petition, and if at the next succeeding court, it shall satisfactorily appear that such pub- hcation has been made as aforesaid, and not otherwise, the said court may, at their discretion, a majority of the justices being present, authorize the petitioner, at his or her cost, to erect a gate as prayed for : Provided always, that the petitioner, or party de- Appeal allow- fendant shall have the right of appeal as in other cases : And pro- ^°- vided further, that all gates, erected under the authority of this subject to tax. section, shall be subject to the same taxes as are imposed by law on gates across public roads. 39. All forfeitures, incurred by a violation of any of the pro- P'o^'f^itures, visions of this act, shall be recovered by action of debt before any covere°d and m- jurisdiction having cognizance of the same, one half to the use of pli^d. the prosecutor, the other half to the use of the county in which the offence is committed, unless the same shall have been other- wise provided for by this act. 36. 1822, c. 1139, s. 3. 37. 1S34, c. 16, s. 1. 33. 1834, c. 16, s. 2, 3 and 4. 38. 1786, c. 256, s. 4. Note. — References to Adjudged Cases. Sect. 1. Carres. Hairston, 1 Car. Rep. 249. Beard jjs. Long, 2 Car. Rep. 69. Pipkin vs. Wynn, 2 Dev. 402. Sect. 2. Little vs. May, 3 Hawks, 599. Sect. 3. Harris vs. Coltraine, 3 Hawks, 312. Sect. 25. MulhoUand vs. Brownrigg, 2 Hawks, 349. 548 SALARIES AND FEES. [Chap. CV. CHAPTER 105. 8AL.ARI£8 AND FEES. AN ACT PRESCRIBING THE SALARIES AND FEES OF THE SEVERAL OFFICERS OF THIS STATE. 4^ 2. 3. 4. e. 6. 7. Section 1. Salaries of the governor, judges of the supreme court, secretary of state, treasurer, comptroller, private secretary to the governor, and clerk in the treasury department — When paid. Salary of the adjutant general. Salary of the judges of the superior courts. Salaries of the attorney general and solicitors. Of the reporter of the decisions of the supreme court. Of the clerk of the supreme court Pay of the councillors of state. 8. Of the clerk and doorkeeper of the council. '9. Of the members of the General As- sembly. Of the clerks and officers of the Gen- eral Assembly. '1 1 . Pay of the members and officers of the General Assembly, how ascer- tained, certified and paid. 12. Fees of the governor's private secre- tary. 13. Of the secretary of state. 14. Of the attorney general and solici- tors for the State. 15. Of the county solicitors. 16. Of attorneys at law. 17. Of clerks of the county courts. 18. Of the clerks of the superior court. 10. Section 19. Clerks to have no fee on a capias in certain cases. 20. In certain state cases, clerks and sheriifs to have only half fees. 21. Fees of sherifi's. 22. SheriSs not allowed commissions upon a justice's execution. 23. Clerks of the superior and county courts to keep a copy of the clerks' and sherifis' fees posted up in their offices. 24. Clerks of courts may issue execution for fees in certain cases — Bill of costs to be annexed. 25. Fees of the clerk of the supreme court. 26. Of clerk and masters in equity. 27. Compensation of county trustees. 28. Fees of coroners. 29. Fees of constables. 30. Of registers. 31. Of entry takers. 32. Of county surveyors. 33. Of rangers. 34. Of commissioners of affidavits. 35. Of processioners. 36. Of standard keepers. 37. Of jailers. 38. Of inspectors. 39. Of tobacco pickers. 40. Fee bills to be made out in dollars and cents — Receipts to be given in the same. I. Be It enacted by the General Assembly of the State of Mrth Carolina, and it is hereby enacted by the authority of the same, folernor''^ '^' t^^^ ^^'! govemor of this State sliall receive an annual salary of two judges of the thousand dollars ; the judges of the supreme court shall receive, Sa^'oT' ®^^^' ^" """r^^ '^^^'^ °^ ^''''' thousand five hundred dollars ; the state, treas- Secretary of state, besides his fees, shall receive an annual salary rer7pr3'sec:°^^'§^' hundred dollars ; the public treasurer, an annual salary of hf^I^'oi^^'^ 1.-1793 c. 403.-1817, c. 956.-181S, c. 962, s. 1.-1821, c. 1121. 2^9 s!v!-lS2S;c. 5? 1799.-1806, c. 702, s. 1.-1827, c. 1, s. 19.-ll787, c. Chap. CV.] salaries and fees. 549 one thousand five hundred dollars ; the comptroller of public ac- retary to the counts, an annual salary of one thousand dollars ; the private sec- fferk b'^thT retary to the governor, besides his fees, shall receive an annual treasury de- salary of three hundred dollars; and the clerk or clerks of the P'*'"*'^®'^''" treasury department, an annual salary of five hundred dollars. All which salaries shall be paid quarterly ; that is, on the first day of April, first day of July, first day of October, and the first day of ^" '^'^' January, in each and every year ; and the public treasurer is here- by authorized to pay said officers, on warrants from the governor, at the different times as before stated. 2. The adjutant general of the State shall receive an annual sal- Salary of the ary of two hundred dollars, to be paid semiannually ; which salary gj^l"'^"^ ^^"^" the public treasurer is authorized to pay, upon warrant from the governor. 3. The judges of the superior comets of law and equity, shall Salary of the each have an annual salary of one thousand nine hundred and fifty iuplriorcourts. dollars, in full compensation for all judicial duties, which are now or may hereafter be assigned to them by the General Assembly, payable semiannually : Provided nevertheless, that if any of the judges aforesaid shall fail to produce to the treasurer, the certificate or certificates of any of the clerks of the several superior courts of the districts assigned them, it shall be the duty of the treasurer, for any certificate they shall so fail to produce, to deduct one hundred dollars. 4. The attorney general of the State, or the solicitor who may at- Salaries of the tend in his place, shall receive the sum of one hundred dollars for g^^*J™n5 foUci- each term of the supreme court, which he shall attend ; and the at- tors. torney general and solicitors shall receive, besides their prescribed fees, the sum of twenty dollars for each term of the superior courts they shall attend, to be paid by the public treasurer, on his or their presenting a certificate of such attendance from the clerks of the respective courts, and if they attend any of said superior courts more than one week, then the said attorney general and solicitors, so attending, shall receive twenty dollars more for the second week of said term, to be paid in the same manner. 5. The reporter of the decisions of the supreme court shall re- 0/ the reporter ceive, as a compensation for the services required of him by law, a of the supreme salary of three hundred dollars, which shall be paid to him, upon sat- '^°"'^'^- isfactory evidence to the treasurer, that he has had printed and distri- buted, within the prescribed time, the number of copies of the reports reserved for the use of the State ; and he shall also be authorized, on his own account, and at his own expense, to print, publish and vend, and to obtain under this grant and in conformity with the act of congress, the copy right of said reports of cases determined by said court. 6. The clerk of the supreme court shall, besides his fees, ve- .^^ ^^^ '^'^'"'^ °^ , • r 1 • • 1 ■ 1 the supreme ceive an annual compensation tor his services, not exceeding three court. hundred dollars, to be estimated by the judges of the supreme 2. 1812, c. 82S, s. 10. 3. Amendment. 4. 1S18, c. 973, s. 1 and 2.— 1820, c. 1038, s. 1 and 2. 5. 1822, c. 1148, s. 2.— 1831, c. 39, s. 2. 6. 1803, c. 742, s. 3.— 1812, c. 829.— 1813, C. 963, s. 5. 550 SALARIES AND FEES. [ChAP. CV. Pay of the councillors of state. Of the clerk and doorkeep- er of the coun- cil. Of the mem- bers of the General As- sembly. Of the clerks and officers of the General Assembly. Pay of the members and officers of the court, and to be paid by the public treasurer upon their cer- tificate. 7. Every councillor of state shall receive the sum of three vl.)l- lars per day, for every day he may attend on public business, a id three dollars for every thirty miles travelling to and from the s.iiy of Raleigh, on public business as aforesaid. 8. The clerk of the council shall receive two dollars for each day he is employed, and the doorkeeper of the council shall re- ceive eighty cents for each day he is employed, in attending on the council of state. 9. The speaker of the senate, and the speaker of the house of commons, of the General Assembly, shall each be entitled to re- ceive the sum of four dollars, for every day he shall attend the senate or house of commons ; and each senator and member of the house of commons shall be entitled to receive 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 the sum of 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 to the same daily allowance, as if he had attend- ed regularly in his place. 10. There shall be allowed, as a compensation to the clerks and officers of the senate and house of commons of the General As- sembly, at every session of the same, the following sums : to each principal clerk, the sum of six dollars, for his daily attendance and services ; to each assistant clerk, the sum of six dollars, for his daily attendance and services ; to each engrossing clerk, the sum of four dollars, for his daily attendance and services ; and to each doorkeeper, the sum of three dollars, for his daily attendance and services ; and there shall be allowed, annually, to each of the principal clerks of both houses, the sum of sixty dollars, as a full compensation for transcribing the journals of each house for the public printer, and for taking care of the books, papers and effects of each house, and all other incidental services attached to their offices ; and the principal clerks, assistant clerks and doorkeepers of both houses, and also the engrossing clerks, shall each be allowed the sum of three dollars for every thirty miles of the esti- mated distance, in going and returning by the most usual road from the seat of government to his place of residence, and also their ferriages. 11. The compensation, which shall be due to the members and officers of the senate, shall be ascertained by the principal clerk, r. 1808, c. 751—1793, c. 403. 8. 1793, c. 403. 9. 1820, c. 1050, s. 1 and 2. 10. 1820, c. 1050, s. 3 and 4. 11. 1820, c. 1050, s. S. Chap. CV.] salaries and fees. 551 and certified by the speaker thereof, and the same shall be passed General As- as public accounts ; and that, which shall be due to members and ascertalnecL^ officers of the house of commons and to the engrossing clerks, certified and shall be ascertained by the principal clerk of the house of com-^^^ mons, and certified by the speaker thereof, and the same shall be passed as public accounts, and paid by the treasurer. 12. The private secretary of the governor shall be allowed the Fees of the following fees, and no other whatever, to be paid by the persons vateTecre^tary' for whom the services are rendered, to wit : for a judge's com- mission, four dollars ; for an attorney general's commission, two dollars ; for a soUcitor's commission, two dollars ; for commis- sion for senator in congress, two dollars ; for commission for rep- resentative in congress, two dollars ; for notary public's commis- sion, two dollars ; for any commission for a place of profit, two dollars ; for a testimonial, one dollar ; for suspension of a grant, seventyfive cents ; for affixing the seal to a grant, twentyfive cents. 13. The secretary of state shall be allowed, in addition to his Of the secreta- salary, the following compensation and fees, to wit : for furnish- "^^ ing 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 ; for copying and certifying a will, forty cents ; for correcting an error in a patent, forty cents ; for copying and certifying the record of a grant or patent, containing not more than six hundred and forty acres, forty cents ; for 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 ; for receiving sur- veyor's return, making out, recording and endorsing grant, fifty cents ; for each search, ten cents ; for each certificate, ten cents ; for recording deeds for land purchased for the use of the State, the same fees that registers are entitled to for like services ; for docketing a caveat, filing order of suspension to the court, and entering and filing the judgment of the court thereon, fifty cents ; for copying any entry from the journals of the assembly, forty cents ; for 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 individuals for copies furnished for their own use. 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 the regis- ters of the several counties of this State. 14. The attorney general and solicitors of this State shall, in Of the attor- IV' 1 •' -^ . ,, , , , , -, • ney general ana addition to the compensation allowed them by the State, receive solicitors for the the following fees, and no other, to wit : for each and every in- State. dictment for murder, perjury, forgery and burglary, which they or either of them may have occasion to prosecute on behalf of the State, they and each of them shall receive the sum of ten dollars 12. 1799, c. 535, s. 3.— 1506, c. 702, s. 1. 13. 1821, c. 1121, s. 2.— 1782, c. 179, s- 2.— 1793, c. 403.-1799,0. 535, s- I.— 1832, c. 15.— 1834, c. 23.— 1S19, c. 1020.— 1823, c. 1193, s. 2.— 1812, c. 838, s. 3. 14. 1820, c. 1038, s 3.— 1818, c 973. s. 2, amended- 552 SALARIES AND FEES. [Chap. CV Of the county solicitors. Of attorneys at law. Of clerks of the county courts. upon the conviction of the defendant, to be paid by the party convicted ; for each and every indictment for grand or petit larce- ny, arson, frauds, deceits, and maim, the sum of five dollars, to be paid as aforesaid ; and for all other offences whatsoever, the sum of three dollars to be paid as aforesaid, and in no other manner whatsoever, except in cases of inferior offences, where the court shall be of opinion that the prosecution is frivolous or malicious, and may think proper to order that the prosecutor shall pay the costs : Provided nevertheless, that no larger fee than ten dollars shall be taxed for any attorney general or solicitor, in any indict- ment against the justices of the peace of any county, as justices, when there are more than three justices who are found guilty. 15. The county solicitor of each county shall not be entitled to receive any fees in any case whatever, unless on conviction of the defendants of the crimes set forth in the bills of indictment respec- tively ; and in all cases of conviction, the said solicitors shall re- ceive the sum of four dollars, for each defendant convicted, from said defendant, and in no other way whatever. 16. All fees to be taken by attorneys, in any suits in any of the several courts of law and equity established in this State, shall be as follows, to wit : in any suit in equity, the sum of twenty dol- lars ; in any suit in any of the superior or county courts, where the title of lands shall come in question, the sum of ten dollars ; in all other suits originally commenced in any of the said courts on the law side, the sum of four dollars ; in all appeals from any other court to the said superior courts, the sum of four dollars ; in every appeal from the judgment of a justice of the peace to the said county courts, the sum of two dollars : Provided always, that on any petition for dower, a larger fee than four dollars shall not be taxed : And provided further, that whenever a court shall make an order of sale of lands, levied on by a constable or other officer, in pursuance of an execution issued by a justice of the peace, and in all cases where any bond shall be taken and returned, under the act for the relief of insolvent debtors, to the court of pleas and quarter sessions, except in cases where an issue shall be made up, no attorney's fee shall be taxed by the clerk on any such order or scire facias ; or against any such insolvent and his sureties. 17. The clerks of the several courts of pleas and quarter ses- sions in each and every county of this State shall receive the fol- lowing fees, and no other, viz : for 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 dol- lar ; for every indictment, sixty cents ; for each recognizance, twenty cents ; for every reference, or continuance of any cause, thirty cents ; for every judgment entered after the return court, seventyfive cents ; for every subpoena, provided the party inserts no more than four witnesses in the same, fifteen cents ; for every execution, or order of sale, thirty five cents ; for every scire facias^ 15. 1818, c. 965. 16. 17S6, c. 2S3, s. 4.— 1806, c. 693, s. 16.— 1323, c. 25, s. 2.— 1830, C. 1, s. 6.— IS34, c. S, s. 1. 17. 1830, c 1, s. 1,-1828, c. 8, s. 7.— 1829, c. 19, s. 2. Chap. CV.] salaries and fees. 553 sixty cents : Provided, that when, at any term of a court, there shall be several judgments obtained against an administrator or an executor, with an admission or finding, that said executor or ad- ministrator has not assets hable to the judgments, and the plaintiffs shall pray for writs of scire facias against the heirs or devisees of the testator or intestate, the clerk, for issuing such scire facias, shall be entitled to charge but thirty cents. For every copy of a record, five cents for each copy sheet of ninety words, not ex- ceeding five copy sheets, and three cents for each copy sheet after after five : Provided, that the total amount of fees charged for any one record shall not exceed five dollars. For every order or rule foreign to the cause, with a copy of the same, if required, twenty cents. For a copy of a will, five cents for each copy sheet of ninety words not exceeding five copy sheets, and three cents for each copy sheet after five : Provided, that the total amount of fees, charged for the copy of any will, shall in no case exceed five dollars. For prov- ing and recording at length, in bound books kept for that purpose, and filing, an inventory, account of sales or account current, exhib- ited by an executor, administrator or guardian, or for search and certificate of the amount thereof, if the estate be under two hundred dollars, the clerk shall be entitled to receive for his fee twenty cents ; if above two hundred and under one thousand dollars, forty cents ; if above one thousand, seventyfive cents, and no more. For entering on the minutes the probate of any will, qualifying executors, making certificates, and recording the will, in a bound book kept for that purpose, eighty cents ; for granting administration, taking bond, and other services thereon, eighty cents; for every mar- riage hcense and bond, seventyfive cents; for every search of record out of court, ten cents ; for proving or entering the acknowledgment of the conveyance of lands or other estate, and certifying the same with order of registration, and examination of a /erne covert without commission, twenty cents ; for proving or taking acknowledgment of a deed, or power of attorney, and certifying the same, including order of registration, twenty cents ; for every commission to exa- mine a feme co«;eri, twentyfive cents ; for every commission to take testimony, twentyfive cents ; for every guardian and other bond taken in court, sixty cents ; for every indenture for binding ap- prentices, sixty cents ; for every special verdict, or demurrer, or motion in arrest of judgment, thirty cents ; for every writ of error, or appeal, with a transcript of record, one dollar ; for every certi- ficate of witnesses' or jurors' attendance, ten cents ; for affixing the seal of office and writing the necessary certificate on any in- strument of writing, requiring the same, twentyfive cents ; for every certificate without the seal of office, and when the same is not otherwise directed to be paid, twenty cents ; for recording a mark or brand, and giving a certificate thereof, ten cents ; for is- suing a warrant, on entry of land, by order of court, forty cents ; for enrolling divisions of estates, for each lot, twenty cents ; for taking and recording every prosecution bond, forty cents ; for ev- ery certificate of tavern license and bond, with a copy of rates, one dollar ; for taking an account, such sum as the court may allow, VOL. I. 70 554 SALARIES AND FEES. [ChAP. CV. not exceeding fifty dollars ; for every subpoena, founded on a peti- tion, fifty cents ; for every copy of a petition, by the copy sheet, ten cents ; for every writ, other than leading process or subpoena for witnesses, seventyfive cents ; for every order of court, author- izing the sheriff" to issue a license to retailers, eighty cents ; for correcting an error in a patent, forty cents ; for recording proces- sioners' certificate, twenty cents ; f^ every search of entry taker's books, ten cents ; for every copy df location from entry taker's books, ten cents ; for docketing constables' levies, including all services in court, one dollar ; for filing insolvent's schedule bond, and all other services in court, without trial by jury, one dollar ; for trial of issue on such schedule bond, seventyfive cents ; and the creditors, at whose instance the issue is made up, shall be bound to pay the taxed costs of the issue, if the defendant be discharged by the court ; for declaration of a foreigner wishing naturalization, copy and seal, one dollar and fifty cents ; for final entry of natural- ization, copy of the same and seal, one dollar and fifty cents ; for docketing appeals, and entry of plea or default, eighty cents ; for every guardian notice, for renewal of bonds or settlement of ac- counts, sixty cents ; for recording the decree of the court, upon a petition filed for the legitimation of a bastard child, one dollar. Of the clerks 18. The clerks of the superior courts of law of this State, courts. ^'^^^'^"'^ shall for hke services, receive the same fees as are by this act allowed the clerks of the county courts, and no other. Clerks to have 19. No clerk of any county or superior court shall be entitled to capias in cer- charge any fee for any capias ad respondendum, issued during term tain cases. time, returnable instanter, unless such capias be executed. In certain state 20. In all State cases, where there shall be a nolle prosequi and sheriffs to entered, or the defendant shall be acquitted, or convicted and un- have only half able to pay the costs, and the court shall not order the prosecutor to pay costs, the counties shall pay the clerks and sheriffs half their lawful fees only, except in capital or clergiable felonies, or prose- cutions for forgery, perjury and conspiracy. Peesof sher- 21. The several sheriffs in this State shall receive the following fees, and no other, viz : for every arrest, seventyfive cents ; for every bail or replevin bond, twentyfive cents ; for service of a copy of declaration in ejectment, sixty cents ; for service of sub- poena, with a copy of petition, sixty cents ; for serving a copy of declaration, ten cents ; for services of every scire facias, sixty cents — Provided, that when at any term of a court there shall be several judgments obtained against an administrator or an executor, with an admission or finding that said administrator or executor has not assets, liable to the judgments, and the plaintiffs shall pray for writs of scire facias against the heirs or devisees of the testator or intestate, the officer for serving each scire facias, shall be entitled to charge but thirty cents ; for service of notice to arbi- trators, referees and commissioners, to take an account, thirty cents ; for every attachment levied, seventyfive cents, and if further trouble by moving of goods, to be taxed by the court ; for IS. 1830, c. 1, s. 2. 19. 1S30, c. 1, s. 6. 20. 1830. c. 1, s. 7. 21. 1830, c. 1, s. 9 and 14.— 1828, c. S, s. 7.— 1S27, c. 20, s. 5.— 1334, c. 9, s. 1 and 2. Chap. CV.] salaries and fees. every replevy bond upon such attachment, twentyfive cents ; for every subpcEna served, for each person named therein, thirty cents ; for putting a person in the stocks or pillory, fifty cents ; for every commitment, thirty cents ; for every release, thirty cents ; for sum- moning commissioners to divide real estate, and for qualifying them, to be paid in equal proportions by the claimants, thirty cents each; the fees for keeping each crimi-^jfil in jail, per day, to be allowed and fixed by each county court, as now directed by law ; for every no- tice to take depositions, thirty cents ; for every notice, that may be required to be given in any cause, motion or proceeding, either at law or equity, as well for commencing as for proceeding in the same, until the same be ended, the same fee as for serving a sub- poena ; for summoning, empanelling, and attending on every jury, in every cause in court, and calling the same, ten cents ; where a special venire shall issue, by order of court, for summoning each juror, twenty cents ; for serving and attending on any person on a habeas corpus per day, one dollar and fifty cents ; for selhng the estate of an intestate, to be allowed by the court not exceeding two and a half per cent. ; for executing a warrant of distress, or an execution against the body, two and a half per cent. ; for all moneys collected by him by virtue of any levy, two and a half per centum, and the like commissions for all moneys that may be paid the plain- tiff by the defendant, while such precept is in the hands of such sheriff ; for every writ of possession, one dollar ; for every levy, by virtue of an execution, seventyfive cents ; for the execution and decent burial of any criminal, ten dollars ; for services of equity process and incidental thereto, the same fees as for the hke services at law ; for maintaining any slave or other property, or any criminal seized by virtue of any legal precept, such sum as may be fixed by the county court in each county in this State ; for apprehending any criminal, one dollar ; for conveying any crim- inal to that jail, where such criminal ought to be conveyed, ten cents per mile, and five cents for each person composing the guard, provided 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 said prisoner, he shall receive fifty cents — the expense shall be paid by the respective counties, if such prisoner shall not be hable or able to pay the same ; for summoning each guardian to renew his bond, or settle his accounts, sixty cents, to be paid by said guar- dian ; for executing a capias ad satisfaciendum, issued from and returnable to a court of record beyond the sheriff's own county, and carrying the body of the defendant and confining him in the jail of such county, three dollars for every thirty miles travelling to and returning from said jail to his own home ; and it shall be the duty of the sheriff to set forth in his return, upon the writ of capias ad satisfaciendum, the distance from his residence to the jail, wherein he may have confined the defendant, the truth of which return shall be verified, by oath or affirmation, before the clerk, and his said fee shall be taxed and collected as his other fees. 555 556 SALARIES AND FEES. [ChAP. CV. Sheriffs not al- 22. No sheriff of any county in this State shall charge a com- sicms upon^E^^*" ''^^^^^o"' ^^ any moneys collected on an execution issued by a jus- justice's execu-tice of the peace, nor any other fees than those allowed by law for ^^°^' ' similar services. Clerks of the 23. It shall be the duty of the clerks of superior and county superior and courts to keep a copy of this act, in relation to the fees of clerks toTeep'^a'copy ^"d sheriffs, posted up in their respective offices, and in the court of the clerks, housc, in some conspicuous place, during the sitting of each court, fees posted up Under a penalty of fifty dollars, to be recovered before any justice in theii- offices, of the peace, by any person suing for the same. ■ 24. It shall be lawful for the clerks of the superior and county courts may is- courts, where suits are determined, and fees not paid by the party sueexecution from whom they are due, to make out executions, directed to the tain cases. ' sheriff of any county in this State, and the said sheriff shall levy Bill of costs to the same as in other cases, and to the said execution shall be be annexed, annexed a copy of the bill of costs of the fees, on which such exe- cution shall issue, written in words at length, without any abbrevia- tion whatsoever ; and all executions, issuing without the copy of such bill of costs annexed, shall be deemed illegal, and no sheriff shall serve or execute the same. ^f^k°f th^ 25. The clerk of the supreme court shall, in addition to his supreme court, salary, receive the following compensation and fees, to wit : for recording the papers and proceedings, in the causes decided in the supreme court, which are required by law to be recorded, such compensation as may be estimated by the judges of the said court at each term thereof, not to exceed thirty cents for each page re- corded, to be paid by the treasurer, on the certificate of the judges ; for entering an appeal, or removal of any equity cause, one dollar ; and the same fees as are allowed clerks and masters in equity for similar services in all other matters relating to causes in equity ; for entering an appeal in a cause at law, one dollar ; for every continuance, thirty cents ; for every scire facias, eighty cents ; for every certiorari, eighty cents ; for every determination, one dollar and eighty cents ; for every certificate, sixty cents ; for every fieri facias or other execution, fifty cents ; for every seal, twentyfive cents ; for every transcript, or any copy of a record, twenty cents for each copy sheet. Of clerk and 26. The clerks and masters of the several courts of equity in masters in this State shall receive the following fees, and no others, to wit : equi y- Yor a report on an answer, thirty cents ; for a report on a plea and answer, forty cents ; for a report on a demurrer and answer, forty cents ; for an affidavit to an answer, fifteen cents ; for an affidavit to a bill, fifteen cents ; for a separate affidavit, twenty cents ; for copying a report by the office copy sheet, twenty cents ; for a report, stating an account, to be allowed by the court, not exceeding fifty dollars ; for copies of proceedings and exemplifica- tion, by the copy sheet, twenty cents ; for taking a bond, fifteen 22. 1830, c. 1, s. 10. 23. 1830, c. 1, s. 15. 24. 1784, c. 223, s. 8. 25. 1812, c. 829, s. 1.— 1831, c. 20, s. 1, amended. 26. 1787, c. 278, s. 3.— 1793, c. 389, S. 7.— 1793, c. 403.— Resolutions of 1792. Chap. CV.] salaries and fees. 557 cents ; for every rule given for service, twentyfive cents ; for every rule not for service, twelve and a half cents ; for every subpoena, writ, or other process, one dollar ; for every dedimus or commis- sion, fiftythree cents ; for every injunction, one dollar ; for draw- ing a decree, by the copy sheet, forty cents ; for enrolling a bill or answer, by the copy sheet, twenty cents ; for entering a plea or demurrer, twenty cents ; for recording depositions to perpetuate testimony, by the copy sheet, twenty cents ; for every dismission, twenty cents ; for every search, ten cents ; for taking security on a leading process, twenty cents ; for recording such bond, twenty cents ; for affixing the seal to any writing requiring it, twentyfive cents. 27. The county trustees of the several counties in this State Compensation shall receive, as a compensation in full for all services required of °^ county trus- them by law, such a per centum upon the amount of their receipts and disbursements, as the county courts, a majority of the justices ■ being present, shall deem adequate and proper : Provided, that such allowance shall not exceed six per centum on such amounts. 28. The several coroners of each county in this State shall pees of cor- receive the following fees, and no others, to wit : for attending on oners, every inquest, two dollars and forty cents, to be paid by the county trustee out of the county funds ; for decently interring the body of coycnari l7x^,i^i^* any white man or free person of color, over whom he has holden >* ^<;t i^- ^A ^f- an inquest, such sum as the county court, seven justices being present, may order, not to exceed ten dollars, to be paid by the county trustee — Provided, the friends of the deceased shall refuse or neglect, to inter the said body — which said sum, so allowed and paid said coroner, shall be charged against the estate of the said deceased, which the county trustee shall use all lawful ways and means to recover ; for decently interring the body of any slave, over whom he has holden an inquest, the same sum, to be allowed and paid as prescribed in the preceding clause — Provided, the master or owner of such slave shall refuse or neglect to inter the body of such slave — which sum such master or owner shall pay back to said trustee, who is authorized to warrant for and recover the same ; 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. The constables in each and every county of this State shall Fees of con- receive the following and no other or greater fees, to wit : for ev-^''^^^^'"" ery day's attendance on court, when summoned, eighty cents ; for whipping a negro, by order of court or of any justice of the peace, thirty cents ; for serving every warrant, for each person named therein, forty cents ; for summoning every witness, twenty cents ; for every execution, forty cents ; for every attachment levied, fifty cents ; for every bail bond, ten cents ; for serving notice on bail, forty cents ; for serving every notice, that may be required by law to be given for commencing and prosecuting any cause, before any justice of the peace, out of court, thirty cents. 27. 1777, c. 129, s. 4. 28. 1784, c. 223, s. 7.-1803, c. 644.— 1826, c. 19, s. 1. 29. 1734, c. 22.5, s. 5.— 1794, c. 414, s. 4 and 22.-1753, c. 403.— 1827, c 20, s. 5. 558 SALARIES AND FEES. [Chap. CV. Of registers. Of entry takers. Of county sur- veyors. Of rangers. 30. The register in each and every county shall receive the following fees and no other, to wit : for registering each deed or grant, containing one tract of land, including the certificate, not less than forty cents, nor more than one hundred cents ; if the deed contain two or more tracts, not less than forty cents, nor more than one hundred cents for the first tract, and not less than ten nor more than twenty cents, for each and every other, and the like fees for copies ; for registering the acknowledgment and cer- tificate of -a. feme covert, in the conveyance of lands or other estate, an additional fee of twentyfive cents, and the like fees for copies ; for registering 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 cents, nor more than one hundred cents ; for registering all other instruments of writing, for each instrument, not less than forty cents, nor more than one hundred cents ; for every search, ten cents ; and it shall be in the power of any county court, (a majority of the justices being pre- sent, and unanimously assenting to it) to estabUsh and regulate the fees of the register in such county, within the hmits above pre- scribed, and when the said fees are once so established they shall not be altered by the court in one year. And when the county court does not establish the said fees, as aforesaid, then the fees of said register shall be at the minimum rates herein prescribed. 31. The entry takers in each and every county shall receive the following fees, and no other, to wit : for every entry, including all services, forty cents ; for issuing each duplicate warrant, when thereto required, twentyfive cents. 32. The surveyors, appointed by the several county courts to survey any lands, the boundaries of which may come in question in any suit 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, to wit : for every survey on an entry containing three hun- dred acres, or less, one dollar and sixty cents ; and for every hun- dred 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, per day, two dollars ; for assisting in the sur- veying and dividing the lands of intestates, or others, held in com- mon, when called upon by the commissioners appointed by the court to make partition, travelling to and from the place, and per- forming the duty, per day, two dollars. 33. The rangers of each and every county shall receive the following fees, and no other, to wit : for entering each horse, mare, gelding, colt or mule, including the certificate, fifty cents ; for entering each head of neat cattle, twentyfive cents ; for entering 30. 1793, c. 403.— 1797, C. 482.— 1831, c. 11.— 1807, c. 725, s. 4.— 1800, C. 555, s. 3.— Amended. 31. 1783, c. 185, s. 15.— 1793, e. 403.-1814, c. 878, s. 2. 32. 17S3, c. 185, s. 15 —1786, c. 252, s. 1.— 1793, c. 403. 33. 1784,0. 22S, s. 6.— 1799, c. 542, S. 2.— 1315, C. 892.-1816, C. 909. -1777, C. 119, s. 10.-1793, c. 403. Chap. CV.] salaries and fees. 559 each head of hogs or sheep, ten cents ; for every bond, twenty cents ; for advertising such strays as are required to be advertised, one dollar and fifty cents ; for every search, ten cents. 34. The commissioners of affidavits, or those who are author- Pf commis- ized by law to act as such in each and every county, shall receive fidavits. the following fees, and no other, to wit ; for every affidavit taken and certified, forty cents ; for affixing the seal of the court, when necessary, twenty five cents. 35. The processioners, appointed in each and every county, Of procession- shall receive the same fees and emoluments, which are allowed by ^"^^^ law to county surveyors. 36. The several standard keepers in this State shall be entitled P^ standard to receive the following fees, and no other, to wit : for examining and adjusting each pair of steelyards, twentyfive cents ; for every weight of half a pound and upwards, five cents ; for every set of weights below half a pound, including one piece of each denomi- nation, five cents ; for every yard stick, or other measure of cloth, five cents ; for every bushel, half bushel, peck or other measure, used in measuring grain, meal or salt, ten cents ; for each measure for liquors, three cents. 37. The jailers of every county shall be entitled to receive, for of jailers, finding each prisoner fuel, one pound of wholesome bread, one pound of good roasted or boiled flesh, and a sufficient quantity of water, with every necessary attendance, thirty cents per day, and no more, unless the courts of pleas and quarter sessions of the seve- ral counties, a majority of the acting justices being present, shall deem it expedient to increase said fees, which they are authorized to do : Provided, that such increase does not exceed fifty per cent, on the above sura, which increase shall be recorded, and shall not be altered within one year thereafter. 38. The several inspectors in this State shall receive the fol- Of inspectors. lowing fees for the duties required of them, and no other, to wit ; for inspecting ton timbers, ten cents per ton ; for inspecting, turn- ing up, coopering, finding nails, hoops, and issuing a note for every wagoned hogshead of tobacco, the sum of seventy cents ; and for each rolling hogshead, eighty cents ; for inspecting transfer tobac- co, at the rate of five cents per hundred pounds ; for inspecting each barrel of flour, five cents ; for inspecting each barrel of pork or beef, ten cents ; for inspecting each barrel of rice or butter, six and a fourth cents ; for inspecting each barrel of fish, three cents ; for inspecting each barrel of pitch or turpentine, two and a half cents ; for inspecting each barrel of tar, two cents ; for inspecting every hundred staves or heading, two and a half cents ; for every thousand shingles, two and a half cents ; for every thousand feet of boards, plank or scantling, ten cents ; for every barrel of flax- seed, containing seven and a half bushels, ten cents. 34. 1818, c. 965, s. 2. 35. 1792, c. 365, s. 8.— 1816, c. 923, s. 1. S6. 1793, c 395.— 1793, c. 403.— 1818, c. 965, s. 2. 37. 1793, c. 403.— 1815, c. 899.— 1817, 944, s. 1 and 2. 38. 1811, c. 812, s. 1.— 1803, c. 642.— 1813, c. 852, s. 4.-1791, c. 345, s. 6.— 1784, c. 221, s. 4.-1793, c. 403.-1787, c. 265, s. 1. 560 SEAMEN. [Chap. CVI. 39. The tobacco pickers, for every hundred pounds picked and prized, shall receive the fifteenth part. 40. All officers of the State, who are entitled to fees, shall make out their fee bills and other charges, of whatever nature they may be, relating to their offices, in dollars and cents, and shall give givenm^the ^ receipts for their fees, and all other moneys by them collected, by virtue of their offices, in the same. Of tobacco pickers. Fee bills to be made out in dollars and cents. same. 39. 1787, c. 265, s. 5- 40. 1825, c. 1284, s. 1 and 2. Note. — References to Adjudged Cases. Sect. 21. Matlock vs. Gray, 4 Hawks, 1. Sect. 24. Wingate vs. Galloway, 3 Hawks, 6. Superior Court Office vs. Lockman, 1 Dev. 146. Sect. 26. Collins vs. Dickinson, 2 Hay. 2. CHAPTER 106. SEAMEN. AN ACT FOR THE RELIEF OF SICK AND DISABLED AMERICAN SEAMEN. Section 1 . An account of the number of officers, &c. to be rendered by masters of vessels, and thirty cents per month paid on each. 2. Coasting vessels subject to like reg- ulations, &c. — Penalty on masters for failing to render account, &c. 3. Collector to pay the money to the Section president and directors of the Wil- mington Marine Hospital Associa- tion. 4. Money, how to be appropriated. 5. When to be in force. 6. Confirmed by an act of congress, and declared to be now in force. Whereas, by an act, passed by the General Assembly of 1835, chapter sixteen, it was enacted as follows, (viz.) "An act for the relief of sick and disabled American seamen." Whereas the hospital money, collected at the port of Wilming- ton, in this State, under the acts of congress, is insufficient for the purposes designed, and to assist the Marine Hospital Association, recently organized in the town of Wilmington, more effectually to accomplish so benevolent an object, 1. Be it enacted by the General Assembly of the State of Jforth Carolina^ and it is hereby enacted by the authority of the same. An account of That before any ship or vessel of the United States shall be ad- the number of 1. 1835, c. 16, s. 1. Chap. CVL] seamen. 561 mitted to enter at the custom house at the port of Wilmington, the officers, &c. to master of said ship or vessel shall render, to the collector of said masters^orves- port, a true account of the number of officers and seamen that have seis, and thirtv been employed on board such ship or vessel, since she last entered paid^on'eSih or cleared at any port of the United States, and shall pay to the said collector at the rate of thirty cents per month, for each and every officer and seaman so employed, which sum the master is hereby authorized to retain out of the wages of such officer and seamen. 2. On the arrival of any coasting vessel, or vessel sailing under Coasting ves- coasting license, (except vessels trading within the limits of this ffke reo-iia- State,) at the port of Wilmington, the master of said vessel shall tions, &c. forthwith render, to the collector of said port, a true account of the number of passengers, officers and seamen, who came in and were employed on board said vessel, and shall pay to the said collector, for each cabin passenger and himself, fifty cents, and for each officer, passenger and seaman, twentyfive cents, which payment for the crew of said vessel the master is hereby authorized to retain out of the waaies of said seamen ; and if the master of any „ u 1 • 1 1 11 r -1 1 1 ^1 Penalty on ship or vessel shall tail to render an account, or render a lalse masters for account of the number of passengers, officers and seamen, and ||^g^^'^?^° ''j"' length of time they have been employed, as herein required by the &c. first and second section, he shall forfeit and pay one hundred dollars, to be recovered in any court of record in this State, at the instance of the collector aforesaid, to the use of the Wilmington Marine Hospital Association. 3. The money collected by virtue of the above recited act, by Collector to the collector aforesaid, after deducting for his compensation, two PL^'^® ™° j°y I 1 ir- I 11 1 -1 1 -1 1 to the president and a halt per cent., shall be paid over to the president and man- and directors of agers of the Wilmington Marine Hospital Association aforesaid, Jhe Wiimmg-- o . ° 1 1 n • r 1 , ^°'^ Marine or to such person as they stiall appoint tor that purpose ; and Hospital Asso- should the collector of that said port fail or refuse to pay over the '^>^'^i°"- money as herein directed, he shall forfeit and pay five hundred dollars, for each and every offence, to be recovered in any court of record in this State, to the use of the Wilmington Marine Hos- pital Association aforesaid. 4. The president and managers of the Wilmington Marine Hos- Money how to pital Association aforesaid shall faithfully devote all the money, priated. coming into their hands in virtue of this act, to the relief of sick and disabled American seamen, and shall annually make a true return of their proceedings and situation to the public treasurer of the State, and to the secretary of the treasury of the United States. 5. This act shall not be in force until the same is ratified and when to be in confirmed by an act of congress of the United States. ^°''^'^- 6. And whereas the said recited act has been ratified and con- Confirmed by firmed by an act of congress of the United States : Therefore, gress, and de- Be it enactecL &x., That the said act and every part thereof shall blared to be , I • 1 1 /- 1 now in lorce. be and is hereby confirmed. 2. 1835, c. 16, s. 2. 3. 1835, c. 16, s. 3. 4. 1835, c. 16, s. 4. 5. 1835, c. IG, s. 5. 0. Amendment. VOL. I. 71 562 SEAT OF GOVERNMENT. [ChAP. CVII. CHAPTER 107. SEAT OF GOVERNMENT. AN ACT CONCERNING THE SEAT OF GOVERNMENT AND PUBLIC BUILDINGS. Section 1 . City of Raleigh to be the seat of gov- ernment. 2. Who shall be a board to take charge of the public buildings. 3. Board to direct repairs, which shall be paid by the public treasurer. Section 4. Unlawful to deface the walls of the state house. 5. If an infant offends, parent or guar- dian to pay. City of Raleigh to be the seat of government. Who shall be shall be paid by the public treasurer. 1. Be it enacted by the General Assembly of the State ofJVorth Carolina, and it is hereby enacted by the authority of the same, That the city of Raleigh shall be deemed and considered the per- manent and unalterable seat of the government of this State, and the place of 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 comptroller charge'of'the^^^'^® hereby constituted a board to take charge of and keep in repair public build- the buildings, belonging to the State, in the city of Raleigh. ^^^\ ,. 3. The said board is hereby authorized and directed, at any repairs which time, when in their opinion the public interest shall require it, to employ persons to do and make such repairs to the said public buildings and property, as may be necessary to prevent their decay or injury for the want of repair, for which services a reasonable and just price shall be given, to be judged of and allowed by the said board, and which shall be paid by the treasurer, upon their certificate containing a statement of the work and the prices for it which may be allowed. 4. It shall not be lawful for any person to write or scribble on the walls of the state house, or mark the same with pictures or otherwise, under the penalty of five dollars, recoverable before any justice of the peace for the county of Wake, to be recovered by any informer to his own use. If an infant of- 5. Should such ofFence be committed by an infant under the tends, parent ^ , . ,. •' , , or guardian to age 01 twcntyone years, his guardian or parent, as the case may be, P^y- shall be liable to the penalty prescribed by this act, to be recover- ed as above directed. Unlawful to deface the walls of the state house. 1. 1792, c. 367, s. 4.— 1791, c. 337. 2. 1827, C. 29, s. 2. 3. 1827, c. 29, s. 5. 4. 1829, c. 29, s. 1. 5. 1829, c. 29, s. 2. Chap. CVIIL] secretary of state. 563 CHAPTER 108. SECRETARY OF STATE. an act concerning the secretary of state. Sectiok 1. Bond to be given. 2. Bond to be deposited with the treas- urer. 3. Oaths to be taken. 4. Remedy on the bond. 5. Secretary to take receipts for grants. Section 6. May send grants by mail. 7. Office hours. 8. Compensation to the secretary as librarian, and for certain other ser- vices. 1. Be it enacted by the General Assembly of the State of JYorth Carolina^ and it is hereby enacted by the authority of the same, That the governor for the time being is required to demand and ^°^^ ^° ^^ receive, from each and every person appointed secretary of state, " before he enters upon the discharge of the duties of his office, a bond and sufficient security, in the sum of twenty thousand dollars, which bond shall be taken in the name of and payable to the State of North Carolina, and shall be in the following form, to wit : — 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 which payment well and truly to be made, we bind ourselves, our heirs, executors and administrators, jointly and severally, 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 constituted and 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, agreeably to law, then the above obligation to be void, otherwise to remain in full force and efiect. 2. The said bond, when executed as above prescribed, shall Bond to be de- be deposited in the treasurer's office for the safe keeping thereof. fhe\rea^rer. 3. It shall be the duty of each and every secretary of state, be- Oaths to be fore he enters on the duties of his office, besides entering into^^i^en- bond as aforesaid, to take the oaths required by law for the quali- fication of public officers, and also an oath of office. 4. Any person injured or aggrieved by the secretary of state, l^emedy on the by virtue of his office, may bring suit on the said bond, in the name of the State, and in any court of record within this State. 5. The secretary of stale shall keep a receipt book, in which Secretary to ■^ take receipts for grants. 1. 1798, c. 503, s. 1. 2. 1798, c. 503, s. 2. 3. 1793, c. 503, s. 3. 4. 1798, e. 503, s. 4. 5. 1799, c. 535, s. 2. 564 SHERIFFS. [Chap. CIX. May send grants by mail, Office hours. Compensation of the secre- tary, as libra- rian, and for certain other services. he shall take from each and every person, to whom a grant shall be delivered, a receipt for the same. 6. It shall be lawful for the secretary of state to enclose grants • by mail to any person, requesting him to do so, first entering the same on the receipt book kept in his office. 7. For the convenience of the secretary of state and persons having business wuh him, he shall be required to attend to every application made to him for official duties, at his office, which shall be in the city of Raleigh, between the hours of nine and twelve o'clock, and between two and five o'clock, on every day in the year, (Sundays and the fourth of July excepted,) and the secretary of state shall not be required to attend to any call made at any other time of the day. 8. Whereas, by a resolution of the General Assembly of one thousand eight hundred and thirty one, the secretary of state was required to collect the books of the state library, and discharge the duty of librarian ; and by an act of the present General As- sembly, respecting the public printing, important additional duties are required of him : — . Be it enacted by the General Assembly of the State of JVorth Carolina, and it is hereby enacted by the authority of the same^ That the secretary of state be allowed the sum of fifty dollars per annum, for his services as state librarian, during the term he has, and may continue to discharge the duties of state librarian ; and the sum of one hundred dollars, every two years, for the services required of him by the act aforesaid concerning the public printing, to be paid by the public treasurer as an addition to the salary of the said secretary of state. 6. 1821, e. 1121, s, 3. 7. 1824, c. 1238, s. 6. 8. 1836, e. 32. CHAPTER 109. SHERIFFS. AN ACT CONCERNING SHERIFFS. Section 1 . Sheriffs, how elected. 2. When election to be held, and how returns to be made. 3. Persons having the greatest number of votes, to be declared elected — If two or more have an equal number, county court to choose between them. 4. When the returns shall be meide. Section 5. Election to be held every two years — County court to decide contested elections. 6. Who shall be ineligible to the office of sheriff. 7. No sheriff shall be capable of being re-elected, who has failed to settle for public dues. 8. Sheriff elect to give bonds and take Chap. CIX.] SHERIFFS. 565 Section oaths before entering upon the du- ties of his office. Sheriff to renew his bonds annual- ly- Justices to meet on the second and third day of the court after an election, to take the sheriff's bonds. How sheriff may be removed from office — Duty of the coroner, and of the county court, in such case. Coroner to give bonds and take oaths when required to act as sheriff. Form of the bond to be given by the sheriff for the faithful dis- charge of his duty in office. Sheriff to take oaths. Sheriff's sureties liable for fines and amercements. Sheriff not compelled to serve more 9. 10. 11. 12. 13. 14. 15. 16. Sectiok than two years — May resign his office to the county court. Penalty on person elected sheriff for refusing to accept — Proviso where he is unable to give security — Who not compellable to serve as sheriff. Sheriff to execute all process from courts — Penalty for neglect. Sheriff to take no obligation, from any person in his custody, but such as is payable to himself, &,c. Sheriff permitting an escape in civil cases, to be liable to an action of debt. Sheriff not to farm his office. 22. Sheriff to have the custody of the public jail. 23. Sheriff and his sureties to be liable for claims put into his hands for collection. 17. 18. 19. 20. 21. ^4- ti 4 - 1. Be it enacted by the General Assembly of the State of JSTorth Carolina, and it is hereby enacted by the authority of the same, That the sheriffs of each county in this State shall be elected by Sheriffs, how the free white men of the county, entitled to vote for members of®'*^'^^^'^- the house of commons, except that no person, who shall have been convicted of felony, or the crimen falsi, shall be capable of voting for a sheriff. 2. The election of sheriff shall take place at the usual time and When election places in each county for the election of members of the General |j°^^'^j.gj:i|j^^^g^^ Assembly, under the same rules and regulations as prescribed by be made. law for conducting said elections, except that the returns shall be made to the clerk of the county court, and the election of sheriff shall be under the inspection of such persons, as the county court shall appoint at its session next before the election, and in case of the failure of the persons appointed to hold said election or either of them, it shall be competent for a justice of the peace and two freeholders to supply the vacancy. 3. The person, having the greatest number of votes, shall be Person having declared elected by the county court, at its term next after the nu^fieToT election, and if two or more persons shall have the greatest num- votes to be de- ber of votes and an equal number, the county court, a majority of jf t^o q,. more the acting justices beina; present, shall proceed to choose from the have an equal ^•'i.,^-'^ ,^1 , r .1 number, county persons, so having the greatest and equal number oi votes, the court to choose person to act as sheriff. between them. 4. The return of votes given for sheriff, shall be made by l^^e ^^^.^^"gll^Ybe returning officers to the clerk of the county court, within the time made. fixed by law for making the returns of elections for members of assembly, and it shall be the duty of tlie clerks to attend on such day and place, to receive said returns of the votes for sheriff. 1. 1829, c. 5, s. 1.— 1830, c. 25, s. 6. 2. 1829, c. 5, s. 2. 3. 1829, c. 5, s. 2. 4. 1830, c. 25, s. 4 and 5. 566 SHERIFFS. [Chap. CIX. Election to be 5. The election of sheriff shall take place in each county every vears^^^'^ ^^'^ two years, subject to the same rules and regulations, as prescribed County court in a preceding section of this act, and the county courts, a major- tes^eTelecUons ^^J °^ ^^^ acting justices being present, shall be a competent tri- bunal to decide all contested elections under this act. Who shall be Q. No person shall be eligible to the office of sheriff, who is the office of "Ot of the age of twentyone years, and who has not resided in sheriff. the county, in which he is chosen, for one year immediately pre- ceding his election, and shall not have possessed a freehold, of at least one hundred acres of land, in fee simple, for the space of six months next before and immediately preceding the day of his election, which freehold he shall continue to hold during his term of office. No sheriff "^ • ^° person shall be ehgible to the office of sheriff in any shall be capa- county, who has been or hereafter shall be sheriff of such county, elected' w'lfo'^^ and hath failed to settle with and fully pay up, to every officer, the has failed to taxes which werc by law due from him, nor shall any court per- ifc due" ^" " '^^^ ^"y s^^'^ former sheriff to give bond for or re-enter upon the duties of said office, until he has produced before said court, the receipt in full of every officer aforesaid for such taxes. Sheriff elect to 8. The person, declared to be elected in manner above pre- fake oaths be- scribed, shall, in open court, at the same session at which he is so fore entering declared, enter into the bonds and take the oaths, which now are gF his^ office!^^^ o^ hereafter may be required by law for the qualification of sher- iffs ; and until such bond shall be received by the court, no person, declared to be chosen under this act, shall be deemed to be sheriff, or shall on any pretence enter on the duties of sheriff ; and it shall be the duty of the sheriff elect to prepare and tender to the court, the bonds required of him on or before the second day of the term aforesaid, at or before four o'clock in the afternoon of the said day, but in case a majority or twelve of the justices of the peace of such county shall not be present, then and in that case the sheriff elect shall give bond, at or before two o'clock of the third day of the court aforesaid ; and in case any sheriff elect shall refuse or neglect to comply with the provisions of this sec- tion, the county court,, a majority of the acting justices of the county being present, shall forthwith proceed to elect a sheriff, who shall enter into the several bonds and take the oaths required by law, and shall continue in office until the next regular election. Sheriff to re- 9- ^^ shall be the duty of the county court to require the sheriff new his bonds to renew his bonds annually, and to produce the receipts from the annua y. public treasurer, county trustee and wardens of the poor, for the time being, in full of all moneys by him collected, or which ought to have been by him collected, for the use of the State and county, and for which he shall have become accountable ; a majority of the acting justices being present at the renewal thereof, and a failure 5. 1829, c. S, s. 4. 6. 1829, c. 5, s. 6.— 1830, c. 25, s. 3. 7. 1830, c. 25, s. 2.— 1806, c. 699, s. 2. 8. 1829, c. 5, s 5.— 1830, c. 25, s. 1. 9. 1829, c. 5, s. 5. Chap. CIX.] sheriffs. 567 of the sheriff elect to renew his bonds or to exhibit the aforesaid receipts shall create a vacancy. 10. A majority or twelve of the acting justices in the several Justices to meet counties are required to meet at the county court, which shall first and'jhird'^da^ be held after the election of sheriff, on the second and third days of the court " of the term, for the purpose of receiving from the sheriff elect the ^i^n'^to'^take'the several bonds prescribed by law. sheriff's bond. 11. If any sheriff, elected under this act, shall be convicted i" jj^^^ gj^^j.-^. the superior or county courts of a misdemeanor in office, the court may be re- may at their discretion, as a part of his punishment, remove him ^"^'^^ ^^™^ °^' from office, and on any vacancy created by this or any other means Duty of the in the ofiice of sheriff, it shall be the duty of the coroner of the the°countT'^ "'' county to execute all process directed to the sheriff, until the first court, in such session of the county court next succeeding such vacancy, and jt^^^®" shall be the duty of the county court at said session, a majority of the justices being present, to elect a sheriff to supply the vacancy for the residue of the term of two years, who shall possess the same qualifications, and enter into the same bonds, and be subject to the same removal, as the sheriff regularly elected under this act, and should the court fail to fill such vacancy, the coroner shall continue to discharge the duties of sheriff until such vacancy shall be filled. 12. Any coroner, required by this act to discharge the duties ofCoronertogive sheriff, shall, before he enters on his duties as sheriff, at the county Q°j^ijg®^^g,^^'Jgf court clerk's office, five or more justices being present, take the quired to act same oath and enter into the same bonds, that now are or hereafter ^^ ^ ^"^^ ' may be required of sheriffs regularly elected, and the oldest or first appointed coroner in each county shall be considered the coroner to discharge the duties of sheriff, and the proceedings shall be en- tered on record by the clerk. 13. Every sheriff, elected or appointed under any of the pro- ^"rm of the visions of this act, shall, besides the bonds for collecting the pub- given by the lie, county and poor taxes, enter into bond with two or more good ^'^•®P?/)|- ^'■'^ and sufficient securities, in the penalty of ten thousand dollars, charge of his payable to the State of North Carolina, with condition in the fol- duty in office, lowing form, that is to say : " The condition of the above obliga- tion is such, that whereas the above bounden is elected and ap- pointed sheriff of county, , if therefore the said shall well and truly execute and due return make of all process and pre- cepts, 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 continuance therein, then the above ob- ligation to be void, otherwise to remain in full force and effect ;" which said bond every county court, a majority or twelve of the 10. 1829, c. 5, s. 10.— 1830, c. 25, s. 1. ^ 11. 1829, c. ri, s. 8. 12. 1820, c. 5, s. 9. 13. 1777, C. 118, S. 1.— 1S23, C. 1223. 568 SHERIFFS. [Chap. CIX. justices being present, is, as above prescribed, required and era- powered to demand and take, and cause to be acknowledged before them in open court and recorded ; and upon a breach of the con- dition of such bond, the party or parties injured may maintain an action on the same, in the name of the State, and no such bond shall become void upon the first recovery, or if judgment shall be given for the defendant, but may be put in suit and prosecuted from time to time until the whole penalty shall be recovered. 14. Every sheriff elect, before entering upon the discharge of the duties of his office, shall take the oaths prescribed by law for the qualification of public officers, and also an oath of office. 15. The securities to sheriff's bonds shall be liable for all fines and amercements, imposed on him, in the same manner as they are liable for all other deficiencies in the official duty of sheriff. 16. No sheriff shall be compellable to serve more than two years, serve more than ^"*^ every sheriff shall be at liberty to vacate his office by resigning two years. the Same to the court of pleas and quarter sessions of his county, ^y resign his ^ majority of acting justices being present and accepting of such Sheriff to take oaths. Sheriff's sure- ties liable for fines and amercements. Sheriff not ofBce to the county court- resignation Penalty on per- son elected sheriff for re- fusing to ac- cept. and thereupon the said court may proceed to elect a proper person to act as sheriff as in other cases of vacancy. 17. If any person, who shall be elected or appointed sheriff un- der any of the provisions of this act, shall refuse to accept and execute the said office, he shall forfeit and pay the sura of one hundred dollars, to the use of the State, to be recovered in the name of the State by action of debt in any court having cognizance Proviso where thereof : Provided always, that if any person, who shall be elected gfve^ security. ° ^"*^ appointed as aforesaid shall be willing to execute the same, but cannot give security as above required, and shall make oath in the county court, that he hath used his best endeavors, without fraud or collusion, to get such securities, then such person shall not incur the penalty aforesaid : .Mnd provided further, that no member of the General Assembly or council of state shall be elected or appoint- ed, nor shall any practising attorney be obliged to act, as sheriff of any county. 18. Every sheriff, by himself or his lawful officers or deputies, shall from time to time execute all writs and other process to him legally issued and directed, within his county, or upon any bay, river or creek adjoining thereto, and make due return thereof, un- der the penalty of forfeiting one hundred dollars for each neglect, where such process shall be delivered to him twenty days before the sitting of the court, to which the same is returnable, to be paid to the party grieved by order of such court, upon motion and proof of such delivery, unless such sheriff can show sufficient cause to the court, at the next succeeding term after such order ; and for every false return, the sheriff shall forfeit and pay five hundred dollars, one moiety thereof to the party grieved, and the other moiety to hira or those that will sue for the same, to be recovered Who not com- pellable to serve as sheriff. Sheriff to ex ecute all pro- cess from courts. Penalty for neglect. 14. 1777, c. 118, S. 1. 15. 1829, c. 33. Iti. 1777, c. IKS, S. 1.— ISOS, c. 752. 17. 1777, c. US, s. 2 and 4. l«. 1777, c. 116,s. 5.— 1821, c. 1110. Chap. CIX.] sheriffs. 569 with costs by action of debt in any court of record, and moreover be further hable to the action of the party grieved for damages. 19. It shall not be lawful for any sheriff, or his officer or deputy, Sheriff to take to take any obligation of or from any person or persons in his cus- fVom any^^°°' tody, for or concerning any matter or thing relating to his office, person in his otherwise payable than to himself as sheriff, and dischargeable gyg^°^^'jgp upon the prisoner's appearance and rendering himself at the day able to him- and place required in the writ, whereupon he was or shall be taken ^^.^ ^^ ^ ^ ' or arrested, and his securities discharging themselves therefrom as special bail of such prisoner, or such person or persons keeping within the limits and rules of any prison, and every other obliga- tion, taken by any sheriff in any other manner or form, by color of his office, shall be null and void, except in any special case any other obligation is or shall be by law particularly and expressly directed ; and no sheriff shall demand, exact, take or receive any greater fee or reward whatsoever, nor shall have any 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, or which shall be from time to time given and provided by law. 20. When any sheriff shall take the body of any debtor in exe- Sheriff permit- cution, or upon attachment for not performing a decree in chancery in^fivHcTsTs'^to for the payment of any sum of money, and shall wilfully or negti- be liable to an gently suffer such debtor to escape, the person suing out such exe- ^^ ^°" ° ^ *"■ cution or attachment, his executors or administrators shall and may have and maintain an action of debt against such sheriff, and in case of his death, against his executors or administrators, for the recovery 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, or Sheriff not to any part of it, under pain of forfeiting five hundred dollars, one half^"""^^^ office. to the use of the county, and the other half to the person suing for the same. 22. The several sheriffs of this State shall have the care and sheriff to have custody of the public jail in their respective counties, and they ^t^e public Jail, shall appoint the keeper thereof. 23. Whenever a sheriff, by himself or deputy, shall receive into Sheriff and his his hands claims for collection, it shall be his duty as an officer, liable for diligently to endeavor to collect and pay them over, in like manner f^.^'^® put into as constables are now bound ; and in default of such duty, he shall collection. be liable to the owner of such claims for damages, which may be recovered in any court of law, by suit on his official bond, given for the faithful discharge of his duty in office ; and for moneys collected on such claims, the sheriff and his sureties shall be liable, in like manner and for like damages as are now provided for in the case of money collected by sheriffs under process of law. 19. 1777, C. 118, s. 8. 20. 13 Edw. 1, c. U.— 1777, c. US, s. 10 and 11. 21. 23 Hen. 6, c. 9. 22. 24 Edw. 3, c. 10. 23. 1836, c. 28. VOL. I. 72 570 SLANDER OF WOMEN. [ChAP. CX. Note. — References to Adjudged Cases. Sect. 13. Hostler rs. Patterson, 1 Hay. 216. Governor vs. Matlock, 2 Hawks, 366. Grumpier us. Governor, 1 Dev. 52. Governor »s. Twitty, ib. 153. Governor i;s. Matlock, ib. 214. Branch vs. Elliot, 3 Dev. 80. Governor vs Munroe, 4 Dev. 412. Sect. 18. Hogg vs. Bloodworth, Conf. 477. Davis vs. Lancaster, 1 Murph. 255. Douglas vs. Auld, 1 Car. Rep. 500. Sect. 19. Denson ijs. Sledge, 2 Dev. 136. CHAPTER 110. SL.ANDER OF IVOMEN. AN ACT TO ENABLE WOMEN, IN CERTAIN CASES, TO MAINTAIN ACTIONS OF SLANDER. Whereas it is of the first importaoce in every free and well regulated government, that the laws, which secure to individuals the enjoyment of private character, should be plainly defined and clearly understood ; and as doubts have arisen whether actions of slander can be maintained in this State against persons, who may attempt, in a wanton and malicious manner, to destroy the reputa- tion of innocent and unprotected women, whose very existence in society may depend on the unsullied purity of their character : Be it enacted by the General Assembly of the State of JYorth Carolina, and it is hereby enacted by the authority of the same, What words That from and after the passing of this act, any words spoken of spoken of women, which may amount to a charge of incontinency, shall be women shallbe ' , , , , •'^ i • , , ° i i ,i , • "^ J actionable, deemed and held to be actionable, and shall subject the person using them to an action on the case, to be prosecuted by the party aggrieved, in any court of record having cognizance thereof, under the same rules and regulations as have been heretofore observed in the trials of actions of slander. 1808, C. 748. Note. — References to Adjudged Cases. ^ t* Watts vs. Greenlee, 2 Dev. 115. CHA.P. CXI.] SLAVES, ETC. \ 571 CHAPTER 111. SL.ATE8 AND FREE PERSONS OF COL.OR. AN ACT CONCERNING SLAVES AND FREE PERSONS OF COLOR. 2. 3. Section 1. Negroes, mulattoes, or persons of col- or, imported contrary to act of con- gress, to be sold for the use of the State. Sheriff's duty in seizing and selling. Sheriff's duty when such negroes, &c. abscond. 4. Persons giving notice of such negroes, &c- to have one fifth of their value. 5. Sales to be made at the court house, and sheriff to give bills of sale. 6. Sheriff's commissions, &c. for making such sales. 7. Certain former purchases confirmed. 8. The issue of negroes, &c. imported, included in the foregoing provisions. Penalty for bringing slaves from cer- tain states. Reward for taking up runaways. Runaways to be committed to jail in certain cases, and notice to be given. Duty of a justice when a runaway is brought before him— And also of the constable to whom such runa- way may be committed. Penalty on any sheriff, &c for em- ploying the runaway, or keeping him longer than this act directs, or for suffering him to escape. Keepers of ferries to give passage to constables, &c. conveying runa- wavs. 9. 10. 11. 12. 13. 14. 15 Notice to be given by the jailer, in certain cases, in the State Gazette. Runaway slaves may be sold, in cer- tain cases, by order of the county court. 17. Sheriff's commissions on such sale. 18. Sheriff to give a bill of sale — Pro- ceeds of such sale, how appropri- ated. 19. Owner may recover the money on petition. 20. The county to pay the expenses of runaways in certain cases — Such 16 27. 23. 29. 30. 31. Section expenses to be recovered of the owner when he becomes known. 21. Slaves offering forged free passes, to be whipped. 22. Runaway slaves may be outlawed in certain cases. 23. Slaves not to go armed, nor to hunt with a gun. 24. Slaves not to go off their master's plantation without a written permit. 25. Slaves not to raise stock. 26. Owners of slaves, not properly feed- ing them, &c. to be liable for their stealing corn, &c. Slaves not to teach each other to read, &c. Slaves not to sell spirituous liquors. Slaves not to play at any game for money, &c. Penalty on slaves for burning the woods. Slaves not to be allowed to hire their own time — Proceedings in such cases. 32. Slaves not to go at large as freemen. 33. Negroes, &c. not to meet for the purpose of dancing, &c. without a written permit. Slaves, &c. not to preach in public. Conspiracy of slaves, how punisha- ble. Insurrection of slaves, how punisha- ble. 37. Free persons joining conspiracy, &c. of slaves, how punishable. What evidence shall be received in cases of insurrection, &c. Slaves convicted of conspiracy, &c. to suffer death, or be transported. Slaves returning voluntarily from transportation, to suffer death — If brought by their owner, &c-, to be forfeited. Slaves, for trivial offences, to be tried before a justice of the peace. 34. 35. 36. 33. 39. 40. 41. 572 SLAVES, ETC. [Chap. CXI. Section 42. What jurisdiction the county court shall have over offences committed by slaves. 43. Jurisdiction of the superior court over offences committed by slaves. 44. Trials of slaves may be removed as in cases of free persons. 45. Slaves shall be entitled to a trial by jury when tried in court. 46. Slaves, for capital offences, to be tried on presentment or indictment, and be allowed challenges of jurors. 47. Slaves allowed the benefit of clergy. 4S. Owner of slave to have notice of the trial in certain cases. 49. Where the owner cannot be found, the court shall appoint counsel for slaves. 50. Against and for whom slaves and other persons of color may be wit- nesses. 51. Court to give a charge to a negro, &c. examined as a witness. 52. Negro, &c. committing perjury, to be punished as a free man, 53. Incases of insurrection, &c. a com- mission of oyer and terminer may issue. 54. Compensation to the prosecuting officer in such case. 55. Appeal allowed from such court of oyer and terminer to the supreme court. 56. Judge may in certain cases continue the cause to the regular term of the superior court. 57. How slaves may be emancipated- Owner to give bond conditioned for slaves leaving the State, &c. 58. Emancipated slaves to leave the State in ninety days. 59. How slaves may be emancijiated when directed so to be done by will. 60. Slaves over fifty years of age may be emancipated for meritorious ser- vices. 61. Emancipated slaves, not leaving the State, or returning, to be arrested and sold. 62. In such case, suit may also be brought upon the bond given by the owner. 63. Grand jury to present all slaves vio- lating this act. 64. No slave to be set free but according to this act. 65. Free negroes, &c. not to migrate into this State — Penalty for coming into the State and not leaving after twenty days' notice. 67. 68. 70. 71. 72. Section 66. How to proceed against free negroes, &c. coming into this State. After term of service, to remove under like penalties. Penalty on persons bringing free negroes, &e. into this State. 69. Vagabond free negroes, &c., how to be dealt with. Money arising from the hire of free negroes, &.c. to be paid to the county trustee. County court may bind out the chil- dren of free negroes, &c. in certain cases. Persons to whom free negroes, &c. are hired, to feed them, &c., and not to remove them from th€ county. 73. Free negroes, &c. charged with mi- grating into this State, &c., to be tried by a jury. 74. Who shall be deemed free negroes. 75. Grand juries to be charged and to make presentment of the offences of free negroes, &e. coming into this State. 76. Free negroes, &c. migrating from this State, and being absent ninety days, not to be permitted to return. Free negroes not to intennarry with slaves. Any person of color, attempting to commit a rape on a white woman, to suffer death. 79. Free negroes, &c. not to gamble with slaves. Free negroes, &c. not to suffer slaves to gamble in their houses. Free negroes, &c. not to entertain slaves in their houses at certain times. Slaves not to trade with each other for certain articles. Free negroes, &e. not to trade with slaves for certain articles. 84- Appeals allowed in cases under the two preceding sections. Free negroes, &c. not to hawk or peddle without a license. Fines on free persons of color, how to be enforced. How such free persons of color shall be hired out. Persons hiring them, to have the same authorities, and be under the same liabilities, as masters of ap- prentices. 89. Further provisions in cases of hiring out free persons of color for fines, &c. 77. 78. 80. 81. 82. 83. 85. 86. 87. 88. / s 4 r. ^3 - f 7 Chap. CXI.] slaves, etc. 573 1. Bk it enacted by the General Assembly of the State of Js^orth Carolina, and it is hereby enacted by the authority of the same, That each and every negro, mulatto or person of color, imported Negroes, mu- into this State from any foreign port or place, for a slave, or to be lattoes, or per- held to service or labor, since the first day of January in the year imported con- one thousand eight hundred and eight, contrary to the provisions ^^?'^ ^° ^^^ , r r- • 1 1 A 1 • I • 1 • . ol congress, to 01 an act ot congress, entitled " An act to prohibit the importation be sold for the of slaves into any port or place within the jurisdiction of the United gj^j"^ *^^ States, from and after the first day of January, in the year of our Lord one thousand eight hundred and eight," approved the second day of March, one thousand eight hundred and seven, (except as hereinafter provided,) shall be sold and disposed of for the use of the State. 2. The sheriff of each county of this State shall, and he is Sheriff's duty hereby authorized and required to seize and take into his posses- selling. sion every negro, mulatto, and person of color, of the description aforesaid, as well those which have been, as those which shall be imported as aforesaid, found, or which shall be found in the county of which he is sheriff ; and such negro, mulatto or person of color, so taken in his possession, to sell and dispose of at public sale, (giving previous notice of fifteen days of the time of such sale, by advertisement in one of the newspapers published in this State,) to the highest and best bidder, at a credit of six months, the purchaser entering into bond with security, to be approved by said sheriff, for the payment of the purchase money, which money, when received, the sheriff so receiving shall account for and pay to the treasurer of this State, after deducting from the gross amount thereof the several sums hereinafter authorized by him to be retained : the moneys collected by virtue of this act shall be paid and accounted for at the treasury, by the several sheriffs, at the same time and under the same regulations and penalties, as prescribed in account- ing for and paying the public taxes. 3. Where any such negro, mulatto or person of color, as is Sheriff's duty- above mentioned, shall abscond, or so conceal him or herself that ^J^^^j.^gg^^^. he or she cannot be taken by the sheriff, said sheriff may offer a abscond. reward, not exceeding one fifth part of the value of such negro, mulatto or person of color, to any person or persons, who shall apprehend and deliver him or her to the sheriff or his deputy, and shall then sell said negro, mulatto or person of color as above di- rected ; or such sheriff may in his discretion proceed to advertise and sell such negro, mulatto or person of color, as directed in the foregoing section, without offering a reward, although such negro, mulatto or person of color may not be in the custody or possession of said sheriff at the time of said sale. 4. Whenever any person shall discover any negro of the de- ^^^'■.^''"s giving scription aforesaid in any county of this State, and give such notice negroes, &c. to thereof to the sheriff of the county, that he shall, in consequence h^^f^o."^ fifth of such information, obtain the said negro, mulatto or person of 1. 1816, c. 910, s. 1. 2. 1816, c. 910, s. 2. 3. 1816, c. 910 S. 3. 4. 1816, c. 910, s. 4. 574 SLAVES, ETC. [Chap. CXI. Sales to be made at the court house, and sheriff to give bills of sale. Sheriff's com- missions, &c. for making such sales. Certain former Eurchases con- rmed. color, the person or persons, giving such information, shall be en- titled to receive from the said sheriff one fifth part of the sum, for which said negro, mulatto or person of color shall afterwards sell, to be retained, as well as the reward offered, as directed in the preceding section, out of the proceeds of the sale, and paid to the person entitled to the same by the sheriff. 5. All sales by virtue of this act shall be made at the court house of each respective county ; and the sheriff selling, or his succes- sor, in case of his death, resignation or removal from office, shall execute and deliver to the purchaser, his executors, administrators or assigns, a bill of sale for such negro, mulatto or person of color so sold, which shall vest in the purchaser the absolute property in the same, and the title so acquired shall not be affected by the want of advertisement or by any other irregularity in such sale or proceedings on the part of the sheriff. 6. Every sheriff, selling as aforesaid, may retain out of the pur- chase money of such negro, mulatto or person of color, so sold, beside the rewards above directed to be paid, and beside the rea- sonable charges, at which the said sheriff shall be, in keeping such negro, mulatto or person of color till the day of sale, and in advertising as aforesaid, the further sum of six per centum on the gross proceeds of such sale, which shall be in full compensation for his services. 7. Where any person or persons shall have purchased, before the eighteenth of November, one thousand eight hundred and sixteen, for a fair and valuable consideration, any such negro, mulatto or person of color, so imported into this State, contrary to the pro- visions of the said act of congress, of or from any person or per- sons originally importing such negro, mulatto or person of color, or the master, agent or attorney of such importer or .importers, and such sale or purchase shall not be merely colorable to defeat or evade the provisions of this act, in that case the sheriff, in whose county, such negro, mulatto, or person of color is found, and the sheriff of the county where such purchaser resides, shall not pro- ceed to sell such negro, mulatto or person of color : but upon due proof being made of such sale and purchase before the chief justice, or other justice of the supreme or superior courts, such chief or other justice shall give to such purchaser a certificate under his hand, directed to the sheriff of the county where such negro, mulatto or person of color is, or the purchaser resides, specifying the negro, mulatto or person of color, with respect to which such proof shall have been exhibited ; and on receipt of such certificate, such sheriff shall execute and deliver to such pur- chaser or his representative, a bill of sale for such negro, mulatto or person of color ; and the benefit of this section shall extend to the assignee or assignees of such purchaser, as well as to such purchaser and his representatives. .5. 1816, c. 910, s 5. 6. 1816, c. 910, s. 6. 7. 1816, c. 910, s. 7. Chap. CXI.] slaves, etc. 575 8. The foregoing provisions of this act shall extend and apply The issue of to every negro, mulatto and person of color, the issue of any ne- "j^^or^ted, in- gro, mulatto or person of color, so imported as aforesaid. eluded in the 9. Every person who shall introduce into this State any slave, y°sif°s"°^'^°" from any of the United States, which have passed laws for thepenahyfor liberation of slaves, shall, on complaint thereof before any iustice^""?^"" ^l^"*"^* ■* " iroiTi cGrtELin of the peace, be compelled by such justice to enter into bond states, with sufficient surety, in the sum of one hundred dollars current money for each slave, for the removing of such slave to the State from whence such slave was brought, within three months there- after, the penalty to be recovered, one half for the use of the State, the other half for the use of the prosecutor, on failure of a compliance therewith ; and the person introducing such slaves, shall also, in case of such failure, forfeit and pay the sum of two hun- dred dollars, to be recovered by any person suing for the same, and applied to his own use. 10. All persons who may apprehend and confine in jail or de- Reward for liver to the owner, any runaway slave, for whom a greater reward aways."^ ^^'^' shall not have been offered, shall be entitled to recover and receive from the owner of such slave the sum of three dollars, where the owner resides in the county in which such slave may be appre- hended, and five dollars, if he reside beyond the hmits of such county ; and where the runaway slave thus apprehended shall be lodged in jail, it shall be the duty of the jailer to tax the said reward on each slave against such owner, and collect the same with his prison fees. 11. If any negro, who shall be taken up as a runaway, and Runaways to brought before any justice of the peace, will not declare the name to ja°iH™er- of his or her owner, such justice shall in such case, and he is tain cases, and hereby required, by a warrant under his hand, to commit the said gfyen! negro slave to the jail of the county wherein he or she shall be taken up ; and the sheriff or under sheriff of the county, into whose custody the said runaway shall be committed, shall forthwith cause notice in writing of such commitment to be ^set up on the court house door of the said county, and there continued during the space of two months ; in which notice a full description of the said runaway and his clothing shall be particularly set down. And every sheriff, failing to give such notice as herein is directed, shall forfeit and pay ten dollars ; which said forfeiture shall and may be recovered with costs before any justice of the peace in the county, in which such slave is committed ; the one moiety whereof shall be to the county, and the other moiety to the person who shall sue for the same. 12. Where any runaway slave shall be brought before a justice of Duty of a jus- the peace, said justice shall commit the said runaway to the constable r^naway^is^ of his district, by his warrant, and therein order such constable to brought before convey the said runaway to his home or the public jail, and may ^i^of^he 8. 1816, c. 910, Sl 8. 9. 1786, c. 249. 10. 1819, c 1014.— 1823, c. 1227 11. 1741, c. 35, s. 25. 12. 1741, c. 35, s. 30 and 31. 576 SLAVES, ETC. [Chap. CXI. constable to also, if he think proper, order the said constable to 2:ive such run- whom sued i , -^ ^ j- ^i • ^ • ^i -j • .• runaway may ^way as many lashes, not exceeding thirtynine, as the said justice be committed, may in his discretion direct. Every constable, on the receipt of such runaway shall give a receipt for him or her, and, upon failure to execute such warrant or give such receipt, shall forfeit and pay two dollars for the use of the county, to be recovered before any justice of the county where such constable shall reside. Penalty on any 13. If any sheriff, under sheriff or constable, shall set to work, employing the employ Or let out to hire any runaway slave, committed to the runaway, or custody of any of them, or shall detain such runaway longer in his lon^ off with shall have willingly become reconciled to her and suffered her to she shall lose dwell with him ; in which case she shall be restored to her claim, her dower. 12. If any husband shall die intestate, or having left a will, there j,f°j^gp'g^j,Q^^j be a surplus undisposed of in said will, the widow of such husband estate a widow shall be entitled to one third part of his personal estate, or of the ^^g^ ij^^j![g"J^^l- residue undisposed of in his will, remaining after the payment of her husband's his debts and the charges of settling his estate : Provided there be ^^ ^^^^^y- no children, or not more than two children of such husband ; but if there be more than two children, then the widow may be en- titled to a child's part of her said husband's personal estate, or of the surplus undisposed of as aforesaid. 13. When a widow, who may have dissented from her hus-H.°^*hs, band's will, shall claim the share of the personal estate, to which of the personal she may be entitled, it shall be the duty of the court to allot the es|ate shall be . , 1 • 1 1 r ^ • • r 1 1 1 1 1 allotted to her same with as little derangement oi the provisions oi her husband s when she dis- will as is practicable : Provided hoioever, that she shall be entitled p^^^ f'"°™ ^% to what may be allotted her in as full estate, as though the same had been allotted to her in case of intestacy. 14. The widow, claiming under her husband's will, shall in Widow, in rela- O ^ t' i . A' relation to all creditors be considered as a legatee, and be charge- ^0°"^ "i^an be able for the whole amount of her husband's estate, that may come considered a to her hands, either as legatee or in the manner by this act pre- ^§^ '^^• scribed, and shall be bound to refund to the executors or adminis- trators her ratable parts of such debts or demands, as may be afterwards sued for and recovered, or otherwise duly made ap- pear against the estate of her deceased husband, in the same man- ner as other legatees, and by the same process. 8. 1791, c. 351, s. 4. 9. 20 Hen. 3, c. 2. 10. 11 Hen. 7, c. 20. 11. 13 Edw. 1, c. 34. 12. 1784, c. 204, s. 8.— 1835, c. 10, S, I.— 1784, c. 225, s. 4.— 1787, c. 271. 13. 1791, c. 351, s. 2, amended. 14. 1791, c. 351, s. 4. 616 WIDOWS. [Chap. CXXr. Provision for 15. If any citizen of this State shall die intestate, or having testates dyim^ l^ft a will, in which there is a residue undisposed of, and leaving a and leaving no widow and no kindred that are known to exist, the widow may, at areknown.^ the expiration of three years from the grant of administration on the estate of her husband, or the will proved, file her petition in the superior court of law of the county, in which administration was granted, or the will proved, against the administrator or ex- ecutor of her husband, stating the facts of the case, and that there are no persons of kindred to her knowledge, and praying that the surplus of said estate, after debts and charges paid, may be ad- judged to her, which petition shall be sworn or affirmed to by said widow ; and copies thereof shall be served upon the administrator or executor as in other cases of petition, and the same proceed- ings shall be thereupon had as in other cases of petition. The court shall order notice of the filing of said petition, of the facts therein stated and of the prayer thereof, to be published in some newspaper, printed at the seat of government of this State, for at least four months, and if, at the next term of said court, no claimant shall appear, a jury shall be empanelled to inquire whether there be any known kindred of the said intestate ; and if said jury, after hearing the petition and answer, and such testimony as may be offered, shall find that there was not any known kindred of said intestate, living at his decease, the court shall adjudge and decree that the administrator or executor account with the widow for the whole surplus personal property, in the hands of said administrator or executor, after paying debts, legacies and charges of adminis- tration ; and such accounts shall be taken, as accounts are taken in other cases of petition in said court for distributive shares of intestates' estates, and judgment shall be rendered against such administrator or executor for the said surplus : Provided always^ that it shall be lawful, at any time pending said petition, for any person, claiming to be kin to the intestate, to apply to the said court by petition to authorize him to be made defendant to said petition, and to contest the facts staled in the petition. Widow to give 16. When the said court shall adjudge the said surplus to be iti°case*a'iw"of V^^^i ^^^^ ^^^^ widovv or some person for her, in addition to the the next of kin refunding bond required of distributees, shall enter into bond in should appear. (JQy|j]g jj^g g^j-f^ gg recovered, with two good securities, with con- dition that the said widow shall refund to the next of kin to her deceased husband, the said surplus of said estate, provided they make claim tliereof, within seven years after such judgment, or within the period hereinafter allowed for the claim of such said kindred, as may be within the disabilities hereafter provided for : Provided, that nothing herein contained shall affect the right of such next of kin, as at the date of said bond may be infants, non compos mentis, or beyond seas, who may sue on said bond within three years next after such disability removed. 17. Where a man shall die intestate, leaving a widow, it shall Widow of in- testate may 15. 1323, c. 1182, s. 1.— 1S31, c. 23. 16. 1823, c. 11S2, s. 2. 17. 1796, c. 469, S. 1. Chap. CXXL] widows. 617 be lawful for her to take into her charge and possession the whole take posses- of the personal estate of such intestate ; and it shall be lawful for the whole Versonal said widow to use so much of the crop, stock and provisions, then estate till ad- on hand, as may be absolutely necessary for the support of herself ™'j[^n^ed!^^°'^ and family, until such time as letters of administration are or may be granted on the estate of her deceased husband, when her right to the possession of the said personal estate by virtue of this sec- tion shall cease : Provided always, that it shall be the duty of the widow, claiming under this section, to apply for administration upon such estate at the first court, which shall be held after her husband's decease, in the county in which he usually resided. 18. It shall and may be lawful for such widow, at or before ^^^f^?^^ "?^y 1 ,1 ™ , . . . , petition the the same court, when letters oi admmistration are granted, to pe- county court tition the court to appoint one justice of the peace and three free- f^jear's pro- » •!• ■ Visions holders, unconnected with the said widow, whose duty it shall be to view the estate of such intestate, and to allot and appoint out How the same such part of the crop, stock and provisions, as they may conceive ^'^f'^^'j^gj?^^'"''" necessary and adequate for the support of the widow and family for the space of one year, and under their hands and seals make return, to the next succeeding court, of the quantity and articles by them laid off and allotted to the widow and family; having first taken an oath that they will faithfully and impartially, to the best of their knowledge and ability, give and apportion to said widow and family so much or such part of the crop, stock and provisions, as they may deem necessary for the support of the widow and family for one year and no more. 19. If there shall be no crop, stock or provisions on hand, or Where there is not sufficient to aftbrd such allowance, the commissioners shall o°]^an^' the proceed to estimate the value of a year's provisions for the said '^'alue of the widow and family, and may, if such petition is filed before the vislons^must be court, at Avhich administration is granted, allot and set over to her assessed in any article or articles of the personal property, (negroes excepted,) dfic^JnideTof of such intestate, and also any debt or debts known to be due such P^rso'ial prop- intestate ; and such allotment shall vest in such widow the right to edLher!^^°"' collect, by warrant or otherwise, by action of debt in her own name the debt or debts so allotted to her ; but if the petition be filed at the court, when administration is granted, the said com- missioners shall make return, under their hands and seals, of the said estimate to the next court of pleas and quarter sessions ; where- upon it shall be the duty of the court to decree that the same be paid by the administrator, who shall be allowed the same in the settlement of his accounts, and may plead the same, or give it in evidence under the plea of fully administered, to any claim which may be brought against him ; and such sum shall not be taken into account so as to bar the widow^ of any part of her distributive share. 20. The appointment or allotment of the crop, stock and pro- The crop, stock, visions, or of any articles of personal property in lieu thereof as^*^g'^|J(°' &c. allotted to w 18. 1796,0. 469, s. 2.— 1832, c. 20, s. 1. 19. 1^13, c. 853.— 1832, c. 20, s. 2. 20. 1796, c. 469, s. 3. VOL. I. 78 618 WIDOWS. [Chap. CXXI. shall be vested above provided, shall vest in the said widow an absolute right use^of herseff therein to her own use, and the use of her children, but shall nev- and family. ertheless be returned, in the inventory of said estate, by the ad- ministrator, therein notifying that the same has been given and allowed the widow for her support : which notification and return of the persons so appointed by the said court, shall exonerate such administrator from being accountable for the same, either to the The adminis- claimants upon the estate of the deceased or creditors, and shall trator shall not ^^^ ^^ considered as assets in his hands, for which he shall be for the same as liable or accountable ; and the said part or portion of the estate, so assets. given to the widow, shall not debar her from the distributive share now allowed by law. Widow to have 21. In addition to the provisions for the year's support of the in'^addition'to^ widow and family of persons dying intestate, the widow of every her year's pro- such person, SO dying intestate, shall be entitled to one bed and visions. j^g necessary furniture, and one wheel and one pair of cards, if such articles be among the goods of her deceased husband, which shall be her absolute property, and shall be exempted from all claims either of the administrators or of the creditors of said estate, under the same rules and regulations as the articles for her year's support are. Widows dis- 22. Where any widow may enter her dissent from her husband's thdr^fusba^d's^^^^^ within six months after the probate of such will, she may, within will to be en- six months after probate of such will, file her petition in the court, year's'^pro- where the probate of such will was made, and shall recover out of visions. the estate of her husband one year's provisions, in the same man- ner that she would have done, if her husband had died intestate : which year's provision shall be paid by the executor or adminis- trator in preference to all other claims out of the assets. The costs of 23. In all cases where a widow shall file her petition for onp a^vea%Tro-^°'^y^^'''^ provisions out of her deceased husband's estate, the costs vision to be of such petition shall be paid by the executor or administrator, out mTrfis'trator out °^ ^^^® assets of the testator or intestate : Provided always, that if of the assets of there should be a deficiency of assets to pay the year's provision Provfs'o'^^' ^^^ costs of petition, then the petitioner shall pay the costs. 21. 1824, c."l244. 22. 1827, c. 13.— 1835, c. 10, s. 2. 23. 1835, c. 10, s. 3. Note. — References to Adjudged Cases. Sect. 1. Winstead vs. Winstead, 1 Hay. 243. Jones vs. Jones, I JMurph. 96. White- head vs. Clinch, ib. 123. Sutton vs. Burrows, 2 Murph. 79. Frost vs. Etheridge, 1 Dev. 30. Davidson vs. Frew, 3 Dev. 3. Craven vs. Craven, 2 Dev. Eq. 338. Tatews. 'J'ate, I Dev. and Bat. Eq. 22. Spencer vs. Weston, 1 Dev. and Bat. 213. Littleton vs. Littleton, ib. 327. Sect. 2. Vi^hitehead vs. Clinch, 2 Hay. 3. Eagles vs. Eagles, ib. 181. Sect. 4. Rayner vs. Capehart, 2 Hawks. 375. Sect. 19. Gillespie vs. Hymans, 4 Dev. il9. Chap. CXXII.] wills and testaments. 619 CHAPTER 122. TTILIiS AND TESTAMENTS. ' AN ACT CONCERNING LAST WILLS AND TESTAMENTS. Section /<^4^y Section 1. What shall be a good will of lands. 2. What a good nuncupative will, where the estate exceeds two hundred dollars. 3. How a nuncupative will shall be proved. 4. The county court shall have juris- diction of the probate of wills. 6. Appeal allowed. 6. Where and how wills shall be prov- ed. 7. How a will, made in another state, disposing of property in this State, may be proved. 8. Wills to be filed in the clerk's of- fice. 9. Probates of wills evidence of the de- vise of real estate, and copies may bo received as originals. 10. Devises construed to be in fee sim- ple, unless the contrary plainly ap- pears. 11. Construction of a limitation, upon dj'ing without issue. 12. How a written will of lands may be revoked. 13. How a will of personal property, of greater value than two hundred dol- lars, maybe revoked — Of the value of two hundred dollars or less, how. 14. No person, under eighteen years, can make a will of chattels. eA ^4 15. 16. A devise to a child shall vest in his children, if he die before the tes- tator. Children, bora after the making of their parent's will, may petition for a provision. 17. Court to decree a share of the per- sonal estate, and appoint com.- missioners to allot a share of the real. 18. Commissioners' duty in making the allotment. 19. Legatees to contribute proportion- ally. 20. What decree the court may make on the return of the commissioners. After a decree, the petitioners to be deemed legatees and devisees. If no petition be filed by an after-born chdd within two years, executors to file a bill or petition of interpleader. 23. Guardian to be appointed by the court, if the infant have none. 24. Petition to be a lien on the lands de- vised. 25. Devise may be made of an estate held for the life of another — Such estate, when not devised, shall be assets in the hands of the heir of the tenant for life, if he take it by special occupancy. 21 22 1. Be it enacted by the General Assembly of the State of JYorth Carolina, and it is hereby enacted by the authority of the same, That no last will or testament shall be good or sufficient, What shall be either in law or equity, to convey or give any estate in lands, ten- f^^^j"^ ^^^^^ °^ ements or hereditaments, unless such last will shall have been written in the testator's life time, and signed by him or some other person, in his presence and by his direction, and subscribed in his presence by two witnesses at least, no one of which shall be inter- ested m the devise of the said lands ; or unless such last will shall 1. 1784, c. 204, s. 11.— 1784, c. 225, s. 5. V 620 What a good nuncupative will, where the estate ex- ceeds two hun dred dollars. How a nun- cupative will shall be proved. The county courts shall have jurisdic- tion of the pro- bate of wills. WILLS AND TESTAMENTS. [ChAP. CXXII. be found among the valuable papers or effects of any deceased person, or shall have been lodged in the hands of any person for safe keeping, and the same shall be in the handwriting of such de- ceased person, and his name subscribed thereto, or inserted in some part of such will, and if such handwriting is generally known by the acquaintances of such deceased person, and it shall be proved, by at least three credible witnesses, that they verily be- lieve such will and every part thereof is in the handwriting of the person, whose will it appears to be, then and in that case such will shall be sufficient in law to give and convey a sufficient estate in lands, tenements and hereditaments. 2. No nuncupative will in any wise shall be good, where the estate exceeds two hundred dollars, unless proved by two credible witnesses present at the making thereof, and unless they or some of them were specially required to bear witness thereto by the testator himself, and unless it was made in his last sickness, in his own habitation or dwelling house, or where he had been previously resident, ten days at least, except he be surprised with sickness on a journey or from home, and die without returning to his dwelling. 3. No nuncupative will shall be proved by the witnesses, after six months from the making, unless it were put in writing within ten days, nor shall it be proved till fourteen days after the death of the testator, nor till process has first issued to call in the widow or next of kin, or both, if conveniently to be found, to contest it if they think proper. 4. The courts of pleas and quarter sessions shall and may, within their respective counties, take the probate of wills, and order the same to be recorded in proper books, to be kept for that purpose, and shall and may make order for issuing letters testamentary and letters of administration to the persons entitled to the same by law, whichletters shallbe signed and issuedby the clerks of the said courts; and may, by summons, upon application to them made, compel any person or persons whatsoever, within their respective counties, having in their possession any will or testament of any deceased person, to exhibit the same to the court for legal probate thereof; and whoever, being legally summoned, shall in contempt of the court refuse to produce any such will in his or her possession, or having been in his or her possession, shall refuse to inform the court on oath where such will then is, or in what manner he or she hath disposed of the same, such person shall by order of court be committed to the common prison of the county, there to remain, without bail or mainprise, until such will shall be produced and due submission made to the court for the contempt ; and the court shall be and is hereby empowered, in case of such person's re- moval, to issue such summons and process for commitment into any county within this State. 2. 1784, c. 204, s. 15. 3. 1784, c. 204, S. 16. 4. 1777, c. 115, s. S7. Chap. CXXIL] wills and testaments. 621 5. If any person who shall claim a right to execute any will, Appeal allow- shall think himself injured by order of court for letters testa- ^ " mentary, he shall be entitled to an appeal to the superior court of the county, where such order shall be made, subject to the same regulations as in other cases of appeal. 6. All wills shall be proved in the county, where the testator Where and had his usual residence at the time of his death, or in case he or t^g proved.^ ^ she had fixed places of residence in more than one county, in either or any of the said counties ; and in case of a written will, with witnesses thereto, the same shall be proved by at least one ot the subscribing witnesses, if living, but, if contested, shall be proved by all the living witnesses, if to be found, and by such other persons as may be produced to support such will ; and where the validity of any last will or testament, whether written or nuncupative, shall be contested, the same shall be invariably tried by a jury, on an issue made up, under the direction of the court, for that purpose. 7. Whenever it shall be suggested to the court of pleas and How a will quarter sessions in any county, that a will has been made without ™^jj^^^-gp°g|]^^^ the State, disposing of or charging lands or other property situate of property in within the same, it shall be competent for said court to order a depraved' "^'^^ commission or commissions to issue to such person or persons, as it may select, and to be returned at any subsequent term thereof, authorizing the commissioner or commissioners, or such number of them as it may designate, to take the examination of such wit- nesses, as may be produced, touching the execution thereof, and upon return of such testimony, the court may proceed to adjudge the said will to be or not to be duly proved, in the same manner as it now can on the oral examination of a witness or witnesses in open court. 8. All original wills shall remain in the clerk's office, among the Wills to be records of the respective counties, where the same shall be cierk'T office. proved, and to the said wills any person may have access, as to the other records, except for the time they shall or may be removed before any other court for the determination of any con- troversy. 9. All probates of wills in the county courts shall be sufficient P'!?,^^^^!^^ • Wills SVlClGllCC testimony for the devise of real estates, and attested copies of such of the devise wills or the records thereof by the proper officer shall and may be^^J^'^^ ?^'^^^'^^' ., ., •' i^ , ••! -n-v? ^^"- copies mav given m evidence m the same manner as the originals: r'rot^iaea be received as' always, that w^hen any fraud may be suggested to have been com- originals. mitted, in the drawing or obtaining any last will, or any irregularity in the execution or attestation thereof, the party making such sug- gestion, shall and may insist upon the original will being produced to the court, if the same is to be found, and the court wherein any suit is depending and in which such will may be introduced as tes- 5. 1777, c. 115, s. 58. 6. 1789, c. 308, s. 1. 7. 1835, c. 13. 8. 1777,0. 115, S. 59. 9. 1784, c. 225, s. 6. 622 WILLS AND TESTAMENTS. [ChAP. CXXII. timony, may compel all and every person or persons, whether in office or otherwise, to produce the same. Devises con- ^O- When any lands, tenements or hereditaments, or other real s trued to be in estate, shall be devised to any person or persons, the same shall 'ess^the'con-"^" ^^ ^^^l*^ 3"*^ deemed and construed to be a devise in fee simple, rary plainly unless such devise shall, in plain and express words, shew, or it ippears. gj^^jj |^^ plainly intended by such will or some part thereof, that the testator intended to convey an estate of less dignity. 'Jonstruction of n. Every Contingent limitation in any will, made to depend \pon djdng upon the dying without heir, or heirs of the body, or without issue, OTthout issue, or issue of the body, or without children, or offspring, or descend- ant, or other relation, shall be held and interpreted a limitation to take effect, when such person shall die, not having such heirs or issue or other relation (as the case may be) living at the time of his death, or born to him within ten months thereafter ; unless the intention of such limitation be otherwise expressly declared in the face of the will creating it : Provided, that the rule of construction, herein contained, shall not extend to any will made and executed before the fifteenth of January, eighteen hundred and twentyeight. How a written 12. No devise in writing of lands, tenements and hereditaments, will ot lands qj. gj^y clause thereof, shall be revocable, otherwise than by some may be re- •', ,.,,. .. . voked. Other will or codicil in writing, or other writing declaring the same, or by burning, cancelling, tearing or obliterating the same by the divisor himself, or in his presence and by his direction and con- sent ; but all devises of lands and tenements shall remain and con- tinue in force, until the same be burnt, cancelled, torn or oblitera- ted by the devisor, or in his presence and by his consent and direction, or unless the same be altered or revoked by some other will or codicil in writing, or other writing of the devisor, signed by him or some other person in his presence and by his direction, and subscribed in his presence by two witnesses at least, or unless the same be altered or revoked by some other will or codicil in writing, or other writing of the devisor, all of which shall be in the handwriting of the devisor and his name subscribed thereto or in- serted therein, and lodged by him with some person for safe keep- ing, or left by him in some secure place or among his valuable papers and effects, every part of which will or codicil or other writing shall be proved to be in the handwriting of the devisor by three witnesses at least. How a will of 13. No will in writing, passing or bequeathing a personal estate ert'yoT^reat^'r of grater valuc than two hundred dollars, or any clause thereof, value than two shall be revocable, otherwise than bv some other will or codicil, 111111 ^ maybe re- ^^^ ^^^ Other Writing declaring the same, or by cancelling, burning, voked. tearing, or obliterating the same by the testator himself, or in his presence, by his direction and consent ; but such will in writing, passing and bequeathing a personal estate of greater value than two hundred dollars, shall continue and remain in force, until the same 10. 1784, c. 204, s. 12. 11. 1827, c. 7. 12. 1S19, c 1004, s. I. 13. 1819, c. 1004. s. 2.— 17S4, c. 204, s. 14. Chap. CXXIL] wills and testaments. 623 shall be burnt, torn, cancelled or obliterated by the testator him- self, or in his presence, by his direction and consent, or unless the same be altered or revoked by some other will or codicil, or other writing executed in the same manner and with the same formalities as a will good and sufficient in law to pass a personal estate of greater value than two hundred dollars ; and no written will, passing or bequeathing a personal estate of the value of two hundred dol- two hundred lars or less, shall be revoked or altered by a subsequent nuncupa- dollars or less, tive will, except the same be, in the hfe time of the testator, re- °^" duced to writing and read over to him and approved, and unless the same be proved to have been so done by the oath of two wit- nesses at least, who shall be such as are admissible in trials at common law. 14. No person shall be capable of disposing of chattels by will, J^° Jg^y^a^sTan until he or she shall have attained the age of eighteen years. make a will of 15. When anv person shall bequeath or devise any share of his ^^'^'^"'^^- or her estate to his or her child or children, without more saying, ehiid sitiall vest or to such child or children, his, her or their heirs, executors, ad- ?" his children ministrators or assigns, and such child or children shall have died the testator. in the life time of such testator or testatrix, in every such case the said legacy, devise or bequest shall take efiect and vest a title to the property or share of estate, described and mentioned in the same, in the issue of such child or children, if any, in the same manner and to the same extent, as it would have vested it in such child or children had he, she or they been in full life at the death of the testator, and taking effect of such will. 16. When any child or children shall be born after the rnaking ^f|.g|.''^'"[^g ^°™ of his, her or their parent's will, and such parent shall die without making of their having made provision for said child or children, such child or J^j[^" ^^j^^J^ ^^j. children may, at any time within two years after the probate of a provision. said will, by his, her or their next friend or guardian, prefer a pe- tition to the superior court or court of pleas and quarter sessions of the county in which he, she or they reside, setting forth these facts and praying a provision under this act, to which petition the executor of the testator or the administrator with the will annexed, as the case may be, and the devisees of said testator and also his heirs, if a part of the testator's land be undevised, shall be parties, and copies of the petition and subpoenas shall be served in the manner by law directed in other cases of petition. 17. On such petition preferred as aforesaid, it shall and may be Court to de- i ^,., 1, ', , •' cree a share of lawful lor the court to adjudge and decree, that the executor or the personal administrator as aforesaid shall pay and deliver over to the peti- ^^^?-^^' ^"'^ ^^P' tioner or petitioners such portion of the personal estate of his, her sioners to allot or their parent, as the petitioner or petitioners would have been ^^^1"^'"'^ °^'^''^ entitled to, had' the said parent died intestate, and also to appoint five disinterested commissioners, who, or a majority of whom, with a surveyor, being first sworn to do equal and impartial justice, shall lay off to the petitioner or petitioners a share of his or their 14. ISll, c. 820. 15. 1816, c. 915, s. I. 16. 1803, C. 740, s. 1. 17. 1808, c. 740, s. 2. 624 , WILLS AND TESTAMENTS. [ChAP. CXXII. parent's lands, in whatever county situate, equal in value to the share, which would have descended to the petitioner or petitioners, had no will been made, and shall also return a correct valuation of the lands severally devised, and a statement, setting forth what part in value of the lands of each devisee is taken away by the portion so allotted to the petitioner or petitioners. Cornmission- jg. If there be any lands of the testator not devised, these making the "al- lands, or SO much thereof as may be sufficient, shall always be set lotmeiit. apart for the petitioner or petitioners, and the commissioners are enjoined not to interfere with the lands devised or any of them, except so far as may be necessary to make up the deficiency in the petitioner or petitioners' share. Legatees to 19. The several legatees under the will of the testator, in order contribute ^q make up the personal portion decreed by the court to the proportionally. . . "^ . V r • i i n -i • n petitioner or petitioners atoresaid, shall contribute proportionally to the values of their several legacies. What decree 20. Upon the return to the court of the proceedings of the make°"onThJ commissioners, the said court shall and may adjudge and decree return of the that the petitioners and each of them be seized, and thenceforth commissioners, ^^j^ petitioner shall be seized, in fee simple of the share of the lands, to him or her by them allotted, and the said court shall and may give judgment severally, in favor of such of the devisees, of whose lands more has been taken away than in proportion to the respective values of said lands, against such of said devisees, of whose lands a just proportion has not been taken away, for such sums as will make the contribution on the part of each and every of them equitable, and in the ratio of the values of the several de- vises ; and the costs attending the petition and proceedings thereon shall be within the discretion of the court. After a decree, 21. The petitioner as aforesaid, after such decree as aforesaid, to*^ ^r' deemed shall be Considered and deemed in law a legatee and devisee as to legatees and hjg or her portion, shall and may be styled as such in all legal pro- evisees. ceedings, and shall be liable to all the obligations and duties by law imposed on such ; Provided alivays^ that all judgments or decrees, bona fide obtained against the devisees and legatees, pre- viously 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 ex- ecution and effect, as if this act had never been passed, and the petitioner shall take his or her portion as aforesaid, completely subject thereunto : Jlnd provided also, that any suit instituted, either in law or equity, against the devisees or legatees, previously to such petition as aforesaid, 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 complete execution, but on the filing of the petition as aforesaid, during the pendency of such suit, the petitioners or 18. 1808, c. 740, s. 3. 19. 1803, c. 740, s. 4. 20. 1S08, c. 740, s. 5. ■ ' 21. ISOSjC. 740, s. 5. Chap. CXXIL] wills and testaments. 625 any of them, by his or her next friend or guardian, may come into court, suggest the fihng of the petition and become a defendant to the said suit. 22. In case it shall happen that no petition shall be filed, within if no petition be two years as prescribed by this act, it shall be the duty of the after-b^m child executor or executrix, or administrator with the will annexed of within two the parent, before he shall pay or deliver the legacies in said will utors 'to^fife" a given, or before paying to the next of kin of the testator any bill or petition , residue undisposed of by said will, to call upon the said legatees, ° ^" "^ ^^ "' devisees, and next of kin, and the said after-born child, either by bill in equity or petition in the superior or county court, where the executors, and devisees, and legatees, and next of kin, or any of them may reside, to litigate their respective claims and shall pray the court to ascertain, agreeably to the mode of proceeding prescribed by the preceding sections, the share to which said child shall be entitled under this act, and to apportion the shares and sums, which said legatees, devisees, or next of kin, shall severally contribute toward the share to be allotted to said child, and the said court shall adjudge and decree as by this act is legal and equitable. 23. Incase said child shall have no guardian, the said court JppQ'i^\g^^,j°y^® shall appoint a special guardian to defend the interests and rights of the court if the the said child. ' '^^^^' ^^^" 24. The said petition, from the filing thereof in the clerk's petition to be a office, shall be a hen on the real estate devised, in the hands of jien on the the devisees, for the share of such after-born child, which may be decreed by the court on the final hearing of the case. 25. Every person seized of an estate in lands, tenements or Devise may be hereditatments for the life of another person, may devise the said ^tafe hefd for estate by last will and testament, executed with the formalities the life of ill required for the devise of real property ; and should no such de- g^^jj g^^g^jg vise be made, and the said estate for the life of another shall come when not de- to the heir or heirs of the tenant for life by special occupancy, the assets^in^he^ same shall be chargeable in the hands of such heir or heirs as hands of the ,11 . heir of the ten- assets by descent. ant for life, if he take it by oo 1 '•oo „ 1 1 oo ^ 1 special occu- 22. 1523, c. 1183, s. 1. J; 23. 1823, c. 1183, s. 2. painty. 24. 1823, c. 1183, s. 3. 25. 1818, c. 933, s. 1. Note. — References to Adjudged Cases. Sect. 1. Rogers vs. Briley, 1 Hay. 2.56. Eelbeck vs. Granberry, 2 Hay. 232. Rhea vs. Norman, ib. 342. Winants vs. Winants, 1 Murph. 148. Bateman vs. Mariner, ib. 175. Jiggetts vs. Manney, ib. 258. Harrison vs. Burgess, 1 Hawks, 384. Allison vs. Allison, 4 Hawks, 141. Galloway vs. Yates, 1 Dev. 296. Sect. 2. Brown vs. Brown, 2 Murph. 350. Sect. 4. Anon. 2 Hay. 2. Hodges vs. Jasper, 1 Dev. 459. Sumner vs. Roberts, 2 Dev. 527. Redmond vs. Collins, 4 Dev. 430. Sect. 5. Odom vs. Thompson, 2 Hawks, 24. McNiel vs. McNiel, 2 Dev. 393. Har- Tey vs. Smith, 1 Dev. and Bat. 186. Sect. 6. Hampton vs. Garland, 2 Hay 147. Sect. 9. Stanly i'.s. Kean, Tayl. 93. Sect. 12. Howell vs. Barden, 3 Dev. 442. Hester vs. Hester, 4 Dev. 228. VOL. I. 79 626 WRECKS. [Chap, CXXIII. CHAPTER 123. TT R E C K S . AN ACT CONCERNING WRECKS AND WRECKED PROPERTY. Section Wreck districts laid off. Commissioners of wrecks to be ap- pointed — Their bond and oath. No officer of the United States to be a commissioner. Duty of the commissioners of wrecks. Commissioners to advertise and make sales — To render an account of sales — Their compensation. How sales to be advertised. What to be done when there is a Section wreck without any person to claim. 8. Persons finding wrecked property, what to do 9. Punishment for stealing or embez- zling wrecked property. 10. Penalty on commissioners for abuse of trust. 1 1 . Persons finding wrecked property at sea, what to do. 12. Compensation to commissioners, when no owner appears. Wreck dis- tricts laid off. 1. Be it enacted by the General Assembly of the State of JSTorth Carolina, and it is hereby enacted by the authority of the same, That the counties of Currituck, Carteret, Onslow, New Hanover and Brunswick be, and they are hereby divided into the following wreck districts, to wit : the county of Currituck into four dis- tricts, the first from the Virginia line to Judy's cove, the second from Judy's cove to Caffey's inlet, the third from Cafiey's inlet to the place usually called the Sheep Pen, the fourth from the Sheep Pen to New inlet ; the county of Carteret into four districts, the first from the Hyde county line to or acock island, including the same, the second from Ocracock island to Cedar inlet, the third from Cedar inlet to Old Topsail inlet, the fourth from Old Topsail inlet to the Onslow county line ; Onslow county into two districts, the first from Bogue inlet to New River inlet, the second from New River inlet to the New Hanover hne ; New Hanover county into two districts, the first from New Topsail inlet to Masons- borough inlet, the second from Masonsborough inlet to the Bruns- wick line ; Brunswick county into two districts, the first from New inlet to Lockwood's Folly, the second from Lockwood's Folly to the South Carolina line ; and the county of Hyde shall constitute one wreck district. Commissioners ^- ^^ ^^^^^^ ^^ ^^^^ '^^^y ^^ the county courts, in which said wreck of wrecks to districts shall be located, to appoint, whenever it may be neces- Their'^bond and ^^U^ ^ commissioner of Wrecks for each district, who shall hold oath. his office for two years, and shall, at the time of his appointment, enter into bond, with good security, in the sum of fifteen thousand dollars, payable to the State of North Carolina, and conditioned for 1. 1817, c. 953.— 1831, c. 47.— 1818, c. 975.— 1S34, c. 28. 2. 1817, c. 953.-1833, c. 17.— 1828, c. 18.— 1801, c. 599.-1834, c. 28.— Amended. Chap. CXXIII.] wrecks. 627 the faithful performance of his duties as commissioner of wrecks, which said bond shall be dejDOsited in the office of the clerk of the county court for safe keeping, and may be sued upon by any per- son 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 following oalh : "I, A. B..,' do solemnly swear, that I will truly and faithfully discharge tiie duties of a commissioner of wrecks for the district of in the county of , agreeably to law." And it shall be the duty of each commissioner to reside in the district for which he is appointed, unless separated by navigable waters, and then at a distance not exceeding three miles from such district. Provided alivays, that the court of pleas and quarter sessions for the county of Hyde shall appoint one or more commissioners for the district of Hyde, as they may deem proper, under the rules and regula- tions herein prescribed. 3. No person, who shall hold any office or deputation under the No officer of United States, shall act as a commissioner of wrecks. st^t^T'^b 4. It shall be the duty of the commissioners appointed as commissioner. aforesaid, on the ealiest intelligence given, or on application to Duty of the them, made by or on behalf of any owner, supercargo or com- ^^"^g^^^°'^^'^^ niander of any ship or other vessel, being in danger of being stranded, or being stranded, to command any sheriff or constable nearest the coast where such ship or other vessel shall be in dan- ger, to summon as many men, as shall be thought necessary, to the assistance of such ship or vessel, who are to be under the di- rection of the masters or owners ; and the commissioners and all others, who shall assist in preserving any ship or other vessel in distress, or their cargoes, shall, within forty days, be paid a reason- able 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 cus- tody of the commissioners or salvers until all reasonable charges be paid, or security given for that purpose to the satisfaction of the parties ; and in case the parties shall disagree, touching the amount of the reward to be paid the persons employed, it shall be the duty of the commander of such vessel saved, or the owner of the goods, or merchant interested, or their agent, to choose one indifferent person, and also of the commissioners or salvers to nominate one other indifferent person, who shall adjust and ascertain the same, and if such adjustment shall be unsatisfactory to either party, he shall declare his dissent, and thereupon the said award shall be re- turned to the next superior court of the county, where the same was made, and it shall be competent for said court to cause the same to be re-examined, and to pronounce such judgment thereon, as they may deem just ; and in the meantime, it shall be the duty of the commissioner of wrecks to retain in his hands, in order to satisfy said judgment, the amount awarded by the referees or umpire. 3. 1805, c. 639, s. 2. 4. 1301, c. 599, s. 1.— 1827, c. 21. 628 WRECKS. [Chap. CXXIII. Commissioners 5, In future, the Commissioners of wrecks shall be deemed the make sales.^" proper officers to advertise and expose to sale, at public auction, To render an any cargo or cargoes, which may be stranded or cast on shore in saies!°'^° their respective districts, unless the captain, owner, merchant or Their compen- consignee shall choose to superintend such sale himself, or to re- sation. move the property without selling it, and each commissioner shall provide himself with books sufficient, and shall 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 any such sale or sales which shall have been made ; and the said commis- missioner shall receive for such service two and a half per cent, on the amount of all such sales. How sales to 6. When any commissioner of wrecks shall undertake to sell be advertised, ^^j wrecked or Stranded property, it shall be his duty to advertise the sale thereof, not less than ten nor exceeding twenty days, at two or more public places in his county, and should said property be adjudged above the value of one thousand dollars, he shall ad vertise the same in some newspaper (if any) and one other public place of the towns in the federal district of which his county forms a part. What to be 7. If any vessel or other property be cast ashore, within the there Is^a"^ limits of any of the aforesaid districts, without any person present wreck without to claim the same as owner, the commissioner of such district shall clalm"^™ '° take 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, pubhc sale shall be made thereof, but if perishable, the goods shall be sold after being ad- vertised in two or more public places, not less than ten nor more than twenty days, as circumstances may require ; and after all reasonable charges deducted, the residue of the money, with an account of the whole, shall be transmitted to the clerk's office of the court of the county, where such vessel may be stranded or goods saved, and the said clerk shall make a record and keep an account of the same, for the benefit of the owner, who upon proof of his property to the satisfaction of the commissioner together with two justices, shall by their warrant or order receive the same, paying to the clerk of such court one per cent, for his trouble ; and should no person claim the same within a year and one day from the date of the advertisement, it shall then and in that case be the duty of the clerk, holding such money, to transmit the same, after deducting one per cent, for his trouble, to the public treasurer of the State for the use of the State. Persons finding 8. When any person or persons shall find any stranded property ^trwhat uf' on or near the sea shore, and no owner appearing to claim the do. same, he or they shall, as soon as possible after saving the same, give information to the nearest commissioner thereof, and to him 5. 1805, c. 689, s. 1. • 6. 1817, c. 953, s. 2. 7. 1801, c. 599, s. 4. 8. 1801, c. 599, s. C. Chap. CXXIII.] wrecks. 629 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, conceal the same, or convert the same to his own use, or fail within ten days to give information thereof to the nearest commissioner of wrecks in his or their county, on proof thereof had, he or they shall pay to the commissioner, discovering the same, double the value of such property, to be recovered before any competent jurisdiction having cognizance thereof. 9. If any person shall embezzle or steal any stranded property. Punishment for or conceal the same, knowing it to have been stolen, such person bezzliifg wreck- er persons, upon due proof thereof, shall forfeit and pay to the ed property. owner or commissioner double the value of the stolen goods so proved against him or them, or found in his or her possession, to be recovered before any justice of the peace or other competent jurisdiction ; and the person or persons, so feloniously taking or concealing the same, shall moreover be deemed guilty of larceny, and shall be indicted under this act and suffer as in cases of larceny at common law. 10. Should any commissioner, appointed as aforesaid, either P«^"^lty on by fraud or wilful neglect, abuse the trust so reposed in him, he for abuse of shall, upon conviction thereof, forfeit and pay treble damages to trust. the party aggrieved, to be recovered, with costs, by action on the case in any court of record, and shall thereafter be incapable of acting as a commissioner ; and any sheriff or constable or other persons, summoned as aforesaid, refusing or neglecting to give the assistance required for the saving any vessel or her cargo, shall forfeit and pay the sum of four dollars to be recovered by the commissioner, ordering such duty, before any justice of the peace in the county, where such duty was required. 11. Whenever hereafter any property shall be found on board Persons finding any vessel at sea, which has been wrecked or abandoned by the^^y'^j^j^gg^^"'^" crew, which property is afterwards brought into this State, it shall what to do. be the duty of the person, in whose possession the same may be, to deliver it to the wreck master of the district, into which said property may be brought, to be disposed of as stranded property is now directed to be ; and any person, who shall hereafter em- bezzle or conceal any such property, shall be liable to indictment, and upon conviction shall be whipped at the discretion of the court, not exceeding thirtynine lashes. 12. The commissioner of wrecks, when there shall be any [^°™mmis-^°" stranded or wrecked property cast ashore, or any such property sioners when shall come into his hands, and there shall appear no owner to claim ""a^^"'^'^ ^^' the same, shall be allowed, in full for performing the duties and services enjoined by this act in such cases, the sum of five per cent, on the value or sales of such goods. 9. 1801, c. 599, s. 6. 10. 1801, c. 599, s. 7. U. 1828, c. 18, s. 3. 12. 1801, c. 599, s. 8. INDEX. ABATEMENT. Suits not to abate by the death of parties, but may be proceeded on by or against heirs, executors or administrators, 55. not to abate when a term intervenes between the death of a party and the qualification of his executors or administrators, 55. nor while a contest is pending for administration, or for probate of a will, 56. nor by the marriage of a feme sole plaintiff or defendant, 56. Husband made party plaintiff to give new security for the costs, 56. Suit not to abate by death of an executor or administrator, but may be revived by or against the ad- ministrator de bonis non or the executor of the executor, 56. Action of ejectment, on the death of defendant, may be revived against his heirs or devisees, 56. When the heir or devisee a minor, court to appoint a guardian, 56. How heirs or devisees out of the State may be made parties, 57. Actions of detinue, trover, or trespass for injuries to property, real or personal, not to abate by death of either party, 57. Appeals not to abate by death of either party, 57. Attachment issued without bond and affidavit filed to be abated on plea of defendant, 71 . No attachment to be abated for want of form, 72. Justice's process not to be abated for want of form, 353. ACCESSORIES. Benefit of clergy taken away from accessories before the fact to certain crimes, 203. Accessories to felonies, how punishable in certain cases, 203. ADJUTANT GENERAL. See Militia, Public Arms. Salary of adjutant general, what, and when to be paid, 549. Adjutant general may have blanks, &c. printed for his ofiice at the expense of the State, 491. ADMINISTRATORS. See Executors and Administrators. ADVERTISEMENT, Advertisements, where to be made in certain cases, 492. ALIMONY. See Divorce and Alimony. AMENDMENT. General power of the courts to amend before judgment, 58. Adverse party to answer amendments in substance, 58. Formal defects may be amended after judgment, 58. And in returns of officers or subordinate tribunals, 58. Certain defects to be disregarded after verdict, 58. Such defects to be supplied and amended, 59. Amendments not to be made without an order of court, 59. Formal defects to be disregarded on general demurrer, 59. Such defects to be amended, 59. These provisions extend to all actions and proceedings in any court of law, 60, 187. No attachment to be abated for want of form, 72 Justice's process not to be set aside for want of form, 358. 632 INDEX. APPEALS AND PROCEEDINGS IN THE NATURE OF APPEALS. Appeal allowed from any sentence, judgment or decree of the county to the superior court, 61. from orders of the county court appointing or removing a guardian, 61. on the probate of wills or granting letters of administration, 61, 621. on the trial of caveats, 62. in cases of petition for damages caused by the erection of a public mill, 62. or for laying out roads or settling ferries, 62, 538. or for laying out cart ways or erecting gates, &c., 547. may be taken by the prosecuting attorney upon an issue that the defendant is the father of of a bastard child, 91. allowed incases of prosecution or indictment for trading with slaves, 211. from judgments on forfeited recognizances, 221. from the finding on an issue of fraud, made under the insolvent debtors' act, 326. In such case any one or more of the creditors may appeal without the others, 323. Appeals allowed in cases of slaves charged with trading with each other, and free negroes charged with trading with slaves, 591. Appellant to enter into bond with two securities for performing the judgment of the superior court, if against him, 61. Duty of the clerk of the county court to file a transcript in the superior court, 62. Appeal to stand for trial at first term, 62. Appellant may procure a transcript and file it in the superior court, 62. How appellant may proceed when there is a vacancy in the office of the superior court clerk, 62. If appellant fails to file a transcript, appellee may proceed and have the judgment affirmed with double costs to be paid by the appellant, 63. On an appeal the clerk of the county court may issue subposnas for witnesses, 63. Defendants in actions of debt, covenant or assumpsit, appealing for delay, to pay four per cent, ad- ditional interest, 63. Plaintilf appealing and not recovering a greater sum in the superior court to have no costs, but may be ordered to pay the same, 63. Bonds for appeal and for prosecution of suit to be sent up as part of the record, and judgment may be entered on them, 63. No appeal to be dismissed for want of form, 63. Clerk of the superior court shall, if required, give a receipt for the transcript, 63. Cause to be placed on the trial docket, if there are ten days between the last day of the county court and the first day of the next superior court, 64. If not, cause to be entered for trial at the next term, 64. After transcript filed, clerk of the superior court to issue subpoenas, 64. Penalty on clerks for failing to perform their duty in regard to appeals, 64. Persons obtaining writs of recordari or false judgment to give security as in cases of aj)peal, 64. Clerks of county courts to take security from persons obtaining certioraris, 64. Writs of error may be granted by superior courts, 64. Party praying such writ to assign error, and give bond, and give ten days' notice to opposite j)arly, 64, 65. What judgment may be granted by the superior court on such writ, 64. No writ of error to be allowed but within five years after judgment, 65. Proviso for persons under disabilities, 65. No writ of error for matter of fact to be allowed but within five years after judgment, 65. Appeals from the superior to the supreme court allowed on givingbond, 65, 185. Supreme court to render judgment upon an inspection of the whole record, 66, 185. Judges of the superior courts may allow appeals from interlocutory judgments, 65. In such cases so much only of the record as they may think necessary to be sent up, 65. The whole cause not to be removed to the supreme court, 66. In appeal to the supreme court, appellant must file a transcript within the first seven days of the term, 66. Supreme court may render judgment against securities for an appeal, 66. How the appellee may proceed when the appellant fails to file the appesd witliin proper time, 66. How judgment for costs to be rendered, 66. Appeals to the supreme court allowed in equity cases, 66. Appeals not to abate by the death of either party, 57. INDEX. 633 APPEALS AND PROCEEDINGS IN THE NATURE OF APPEALS, {Continued.) Appeals allowed from the superior to the supreme court, in proceedings against corporations, 120. Upon an appeal by a defendant from a justice's judgment, or a recordari, obtained by a defendant, court may compel plaintifl'to give security, &c., 169. Appeals from a justice's judgment to be tried the first term of the county court, 170. Upon such appeals the party cast, shall pay all costs, provided, that if a plaintiff appeal from a judgment in his favor, it shall be at his costs, unless sufficient cause for such appeal is shewn, 170. Appeals from the county to the superior court, how to be tried, 170. Appeals allowed to the supreme court in divorce cases, 242. Appeals maybe taken to the county court in proceedings to assess damages for billing stock, &c., 2S4. Either party may appeal from a justice's judgment, 358. How security for such appeals to be given and proceeded against, 359. Justice to return appeals to court, on or before the second day of the term, and to summon wit- nesses, 359. In an attachment before a justice, an interpleader may appeal to the county court, 77. How, and in what time, a party desirous to appeal, and is unprovided with sureties, or was unable to attend the trial from sickness, &c., shall proceed to obtain an appeal, 359. Duty of the justice and constable upon such appeal being granted, 359. Execution may issue before the appeal is obtained, but upon security given, the officer must return the execution to the justice, 360. Upon appeals to the superior court in petitions for damages caused by the erection of mills, the trial shall be at bar, 424. In such appeal, if the plaintiff recovers no higher damages, he shall pay the costs of the appeal, 424. Appeal allowed from the judgment of a justice or commissioner of navigation in disputes between masters of vessels and pilots, 463. Appeal allowed from a court of oyer and terminer for the trial of slaves in certain cases, to the supreme court, 584. APPRENTICES. County courts to bind out orphan children, 67. What children to be bound out, 67. To what persons, and for what time to be bound, 67. Duty of master of such apprentices, 68. In case of ill usage, court may remove such apprentice and bind him to another, 63. The binding to apprenticeship to be by indenture, 68. Remedy for the apprentice upon the deed of indenture, 68. In what cases the county courts may bind out free children of color, 68, 589. To whom free children of color are to be bound, for what time, and on what terms, 68. Master to give bond not to remove them out of the county and to produce them at the expiration of their term, 68, 533. On failure, the county solicitor to sue on the bond, 69. Proviso as to seafaring persons, 69. Remedy for master against apprentices absenting themselves after arriving at the age of eighteen, and before their term expires, 69. Penalty for harboring, &c. an orphan child, without leave of a justice, 69. Such child to be brought to the next county court to be bound out, 69. ARSENAL. See Public Anns. ATTACHMENTS. On complaint made on oath to a judge or justice of the peace, attachment may issue against the property of a debtor absconding or concealing himself, 70. Attachment to be returned to county or superior court. 71. May also issue in favor of a citizen of this State against a non-resident debtor, under the same rules 71. Plaintiff to give bond, which, with the affidavit, must be returned to court, 71. Attachment issued without bond and affidavit taken and returned, to be abated, on plea of the de- fendant, 71. Form of the attachment, 71. Form of the bond, 72. VOL. I. 80 634 INDEX. ATTACHMENTS, {Continued.) Attachment not to be abated for want of form, 72. Proceedings on attachments, 72. Defendant or his attorney may replevy property attached by giving a hail bond, 72. If defendant does not replevy within sixty days after attachment levied, and the property be perish- able, sheriff may sell and deposit the money in court, 73. Sheriff to summon as garnishees those supposed to be indebted to or to have any effects of the ab sconding debtor, 73. Garnishee to answer on oath, 73. Judgment to be entered and execution awarded against garnishee for what he admits himself to owe, and for effects admitted to be in his hands, 73. If garnishee fail to appear and answer on oath, conditional judgment to be entered against him and sci.Ja. to issue, 73. If he fail, on return of sci. fa. executed, then final judgment to be entered against him for the whole amount of plantiff's judgment, 73. If any of the defendant's estate appears to be in the hands of other persons, court may grant a judi- cial attachment against such estate, 73. When a garnishee denies that he owes to or has any property of defendant, an issue to be made up and tried, 74. Any person claiming property levied on by attachment may interplead — Proceedings thereupon, 74. Specific articles confessed by a garnishee shall be valued by a jury and judgment given for the value, 74. ■ ' In what cases garnishee may exonerate himself by delivery of the articles, 74. When money or specific articles are due or deliverable at a future time, conditional judgment to he entered, 75. Fmal judgment not to be entered without sci. fa., 75. Persons entering themselves as special bail on replevying property, how far bound, 75. In attachments against non-residents, advertisement to be made of not less than six weeks, 75. No final judgment to be entered until such advertisement has been made, 75. Costs of advertisement to be taxed by the clerk, 75. Where judicial process may issue, 75. Attachments in cases cognizable by a justice of the peace— Proceedings thereon, 75. Oath to be taken, bond to be given and attachment to issue returnable before a justice within thirty days, 75. Proceedings before the justice simimary as in case of warrants, 75. Garnishee to be summoned, to answer on oath, and judgment be given against him for the debts or effects he may admit, 76. If garnishee fail to appear and answer, justice to issue a notice to him, and if he again fail on return of such notice executed, judgment to be given against him for plaintiffs' demand and costs, 77. In case of interpleader, the party interpleading may appeal to the county court, where the right shall be tried by a jury, 77. If garnishee denies that he is indebted to or has effects of the defendant and plaintiff suggests the contrary on oath, or if the justice cannot give judgment on the garnishment, the attachment and other papers to be returned to the county court there to be tried, 77. Property attached may be replevied by giving bail bond, 77. If property attached be found to be perishable, by three freeholders summoned by the officer and acting on oath, and be not replevied within thirty days, to be sold by the officer and money re- tained to answer the judgment, 77. Specific articles confessed by a garnishee to be valued by three freeholders, appointed and sworn by the justice, 78. Judgment to be given for their value, 78. How garnishee may exonerate himself by the delivery of specific articles, 73. Garnishee entitled to stay of execution, 78. Attachment to be stayed thirty days, unless property replevied, 78. Special bail how far liable, 78. When justice to direct advertisement to be made, and how long, 79. When real estate attached and condemned by a justice, proceedings must be returned to the county court, 79. If goods be taken on a judicial attachment and be not replevied, they may be sold on final judg ment, 155. INDEX. 635 ATTORNEY GENERAL AND SOLICITORS. An attorney general to be appointed by the General Assembly, to be commissioned by the governor, and to hold his office for four years, 24. Attorney general shall attend to all business of the State in the supreme court, 80. Shall attend and prosecute in the third circuit, 80. Six solicitors to be appointed by the General Assembly, to hold office for four years and prosecute in the circuits for which appointed, 80. In case of vacancy in the office of solicitor a temporary appointment to be made by the judge who is next to ride the circuit, SO. County solicitors to be appointed by the county courts, to hold office for four years, and to prosecute in the county court, by which he is appointed, 80. County solicitor required to sue on bonds given by masters of colored apprentices, in case of breach, 69. Duty of attorney general and solicitors as to trustees of charities, 102, 121. Attorney general may file an information in the supreme or superior court of law against any cor- poration, to ascertain whether it has forfeited its charter, 120. May also file a bill to restrain corporations or individuals, from exercising corporate franchises not granted, l2l. Form of the official oaths of attorney general and solicitors, 434, 436. Salaries of the attorney general and solicitors, 549. Their fees, 551. Fees of county solicitors, 552. ATTORNEYS AT LAW. To be licensed by the judges of the supreme court, 81. When persons coming from other states to be licensed, St. Oaths to be taken — Form of such oaths, 81, 438. To pay a tax. 81. To pay the costs when a suit is dismissed for want of a declaration, 81. Guilty of neglect or fraud to pay double damages, 81. Penalty on attorneys for taking greater fees than those allowed by law, 82. No justice of the peace to practise as attorney in the county court of his county, 82, 354. Attorney, accepting the appointment of justice, must resign his claim to practise in such court, 82. Tax on attorneys' licenses — To whom to be paid, 124. Not more than one attorney to speak in any cause, 158. Every attorney appearing in any cause, to file a powc- of attorney, if required, 158. When necessary for the attorney to retain the power, what to be done, 158. No attorney to enter an appearance, until the power is produced, if required, 158. Fees of attorneys at law, 552. No practising attorney shall be compelled to act as sherifi", 568. AUCTIONS AND AUCTIONEERS. A tax of two and one half per centum to be paid on goods sold at auction, 83. What sales exempt from the tax, 83. What articles exempt from the tax, 83. Tax to be paid on articles sold by auctioneers at private sale in certain cases, 83. Auctioneers to be appointed annually by the county court and to give bond, S3. to render quarterly returns to the clerk of the county court and to pay the public treasurer the amount of duties received, 84. to retain a commission of five per cent, on such amount, 84. Commissioners of certain towns to appoint auctioneers and to supply vacancies, 84. One per rent, out of the two and a half per cent, to be paid by the auctioneers to such commissioners, 85. Clerks of the county courts to make annual returns to the comptroller, of auction duties, and of the names of the auctioneers and their securities, 85. Duty of the comptroller and of the treasurer, 85. Penalty on auctioneers and clerks for failing to make returns, 85. Penalty for acting as auctioneers without appointment, 85. Proviso as to sales and articles exempted from duty, 85. Auctioneers may charge their employers two and a half per cent., 86. 636 INDEX. BAIL. In civil cases how bail to be taken and returned, 86. When the sheriff shall be special bail, 86. All bail bonds must be payable to the sheriff, and conditioned for the prisoner's appearing, and sure- ties discharging themselves therefrom as special bail, 569. Bail bond to be assigned to the plaintiff, 87. If not assigned, sheriff to be special bail, 87. No judgment to be entered against the bail until a ca. sa. has been issued against principal to his. proper county, and returned " not to be found'' and sci.fa. executed on bail, 87. Bail may, before final judgment, arrest and surrender the principal, 87. Person surrendered may give other bail, 87. Issue by the bail to be tried the first term, 88. Non est factum Xo be pleaded only on oath, 88. When principal is imprisoned on other process he may be retained, 88. Costs to be paid by the bail in certain cases, 88. Bail, on replevying property attached, to be liable only for its value, 75, 78. On process from a court of equity, sheriff shall be liable as special bail for taking an insufficicHt bond or for failing to take any bond, 177. On warrants from a justice of the peace, the officer must take bail if required, 354. A defendant arrested on a warrant from a justice and refusing to give bail, to be committed, 355. Regulations respecting bail in such cases, 355. Bail may arrest principal in order to surrender him, 355. Time within which a scire facias against bail on any judgment or decree now existing maybe sued out, 375. Time within which a scire facias against bail in any suit now existing, or hereafter to be brought must be sued out, 376. Proviso where the plaintiff marries or dies after judgment, and proviso also for infants, 376. Time not to be reckoned in case of nonsuit, arrest of judgment or reversal for error, 376. Bail in criminal cases must be taken by the sheriff when the offence is bailable, 217. BANK NOTES. Notes of the banks of other states, &c. under five dollars, not to be circulated in this State, 89. Penalty for circulating such notes, 89. Robbery of, or stealing bank notes, &c. how punishable, 195. Counterfeiting bank notes, &c. how punishable, 205. Passing or attempting to pass counterfeit notes, &c. how punishable, 205. Any person or corporation issuing notes to pass for money, without being authorized by law so to do, how punishable, 213. BASTARDY AND BASTARD CHILDREN. A single woman being with child and refusing to declare the father, to pay a fine and give security by the order of any two justices, 90. If she declare the father on oath, he shall give security to perforin the order of the court thereon or be committed, 90. Person charged to be bound over though the child be not born, 90. Process to issue against the person charged and failing to appear, 90. Issue may be made up by the party charged to try the fact, 91. If issue found against him or there be no issue, he is to be bound with security for the maintenance of the child and pay the costs or be committed, 91. Appeal may be taken by the prosecuting attorney, 91. Examination must be within three years after birth of the child, 91. Execution may issue for the maintenance of the bastard, 91. Bastard children may be legitimated by the county or superior courts on petition of putative father, 91. Effects of such legitimation, 92. ' Decree to be recorded — Clerk's fee for the same, 92. Concealing the birth of a bastard child, how punishable, 197. Illegitimate children may inherit from their mother and from each other, 237. entitled to a share of their mother's personal property, 369. When an illegitimate child dies without issue, how his personal property shall be distributed, 369. BEEF. See Insvecttons and Inspectors. INDEX. 637 BENEFIT OF CLERGY. Benefit of clergy taken from murder, burglary, arson and robbery on the highway, 191. And from the accessories to those crimes before the fact, 191. Benefit of clergy not to be allowed twice, 196. Punishment for clergiable offences, 196. How offenders to be dealt with, after having been allowed their clergy, 196. Benefit of clergy shall not release from an offence not clergiable, previously committed, 197. Women entitled to benefit of clergj^, 197. BIGAMY. What shall be bigamy and how punishable, 193. Not to be applied to a person whose husband or wife shall have been absent seven years, withorut knowledge of his or her existence, 193. Nor to those who have been divorced, &c., 193. BILLIARD TABLES. See Revenue, University. BILLS, BONDS AND PROMISSORY NOTES. Promissory notes made negotiable as inland bills of exchange, 93. Orders in writing for money on third persons, good; and the drawer or acceptor liable, 93. But protest for non-acceptance and notice necessary before a suit will lie against the drawer, 94. All bills, bonds or notes for money, with or without seal, made negotiable, 94- Endorsee or assignee may have an action on the case, or of debt in some cases, in his own name, 94. Interest on bills, &c. to accrue from the time they become due, unless otherwise expressed, 94. Bills, &c. payable on demand, to be due on demand and bear interest after demand, 94. Contracts for the delivery of specific articles to bear interest as moneyed contracts, 94. Protested bills of exchange to draw interest from the time when payable, 94. Damages on protested bills of exchange, 94. Actions on protested bills of exchange may be brought against drawers and endorsers jointly or separately, 95. In actions against drawer or endorser, protest of notary, &c. shall be evidence of a demand, &c., 95. For want of a notary, protest maybe before a justice or clerk or clerk and master, 95. Endorsers of bills, bonds and promissory notes, except bills of exchange, to be held liable as sureties, 95. Action may be brought against the maker of a bill, &c. jointly with the endorsers, or against all or any one of them, 165. When more actions than one are brought on a bill, &c. the court may consolidate them, 166. Act of limitations to apply to bills, &c. after endorsement in like manner as to promissory notes, 374. BILL OF EXCEPTIONS. Time may be allowed to argue demurrer, bill of exceptions, &c., 157. Either party to a suit may tender to the judge a bill of exceptions, 168. Judge to sign and seal the same ; or if he refuse, some other person present may sign and seal it, 168. BILL OF REVIEW. Time within which bills of review, and petitions for rehearing, shall lie or be allowed, 183. BILL OF RIGHTS, 7. BOATS AND CANOES. Persons taking boats, &c. without leave, to forfeit two dollars to the owner, 96. The common law right to sue for damages not taken away, 96. Penalty on slaves for taking boats, &c. without leave, 96. Proviso for cases where he acts by order of his master, 96. Penalty not to extend to persons pressing boats. Sic. for the public service, or to those authorized to take them, 97. BONDS. See Bills, Bonds and Promissory Notes, Official Bonds, Judgment Bonds. In an action of debt on a bond, &c. payment maybe pleaded, 169. on a bond with a penalty, if the defendant bring into court tlie principal, interest and costs, the bond shall be deemed discharged, &c., 169. BOOK DEBTS. In what cases, and within what time. Look accounts may be proved by the plaintiff's own oath, 97. proved by the oath of an executor or administrator, 93. Copy of the account to be evidence, unless notice given to produce the original, 98. Defendant may contest the evidence, 93. No plaintiff to prove by his own oath more than sixty dollars, 98. t 638 INDEX. BOOK DEBTS, (Continued.) Set off may be proved in like manner, 93. Form of book debt oath, 440. Form of such oath when taken by an executor or administrator, 441 . BOOKS. County courts may purchase such books as may be deemed necessary, 142. Penalty on the clerk for abusing the books purchased, 143. BOUNDARY. See County Boundaries. | BRIDGES. See Roads, Perries and Bridges. 1 Burning bridges, how punishable, 194. BRITISH STATUTES. Repealed after the first of January, 183S, 56. BROKERS. See Revenue. BURNING WOODS. No person to set fire to any woods, except his own, and then not without giving two days' notice to his neighbors, 99. Free persons offending against this act to forfeit fifty dollars, and be liable for damages, 99. Slave offending to be whipped, 99. CATTLE, HORSES AND HOGS. Every owner of stock to have a mark and brand, which shall be recorded in the county court, 100. Penalty for killing cattle or hogs in the woods and not exhibiting the head, ears and hide within two days, 100. Cattle not to be driven into this State from South Carolina or Georgia between first of April and first of November, 100. Not to be driven from certain parts of this State into the highland parts thereof, between first of April and first of November, 101. Persons driving cattle from one part of the State to another, must have a certificate of the place from which driven and of their healthy condition, 101. Justice not to grant a certificate without affidavit, 101. Stoned horses of two years old not to go at large. 101. Remedy for persons having stock killed upon rail roads by the engines or cars, 101. All horses, cattle, &c. belonging to slaves, to be seized by the wardens of the poor, 476. Altering the mark or mismarkihg cattle, &c. how punishable, 204. Damages done by stock when fence is sufficient, how ascertained and recovered, 283. Injuries done to stock by persons not having a legal fence, how ascertained and recovered, 284. Penalty on slaves for killing stock in certain cases, 284. CANOES. See Boats and Canoes. CART WAYS. In what cases the county courts may order the laying out of cart ways, 546. Proceedings for such purpose, 546. Persons across whose lands cart ways are laid out, may erect bars or gates across the same, 546. Cart ways to be free for all persons to pass, 546. Appeals allowed from orders to lay off cart ways, 547. CASTRATION. Castration with malice aforethought, punishable with death, 191. CERTIORARI. Clerk of the county court to take security from persons obtaining certioraris, 64. CHARITIES. Trustees of charities to deliver annually a full account of their trusts to the clerk of the county court, to be filed among the records, 102. If trustees fail to render such account or mismanage their trusts, the attorney general or the solicitor shall file a bill in equity against them, 102. A suit in equity may also be brought at the suggestion of two citizens, 102. Attorney general and solicitor allowed fees in such cases, 102. CHEROKEE INDIANS. Contracts with the Cherokee Indians to be in writing, subscribed by two witnesses, 290. CIRCUS RIDERS AND EQUESTRIAN PERFORMERS. See Revenue. INDEX. 639 CLAIMS. Clerk shall number all claims, &c. against the county in a book, and furnish the chairman of the court with a copy annually, 126. Officers having claims against the county, how to proceed, 128. County trustee to settle with sheriffs for claims according to number, 131. CLERK OF THE SUPREME COURT. Judges to appoint a clerk, who shall hold his of&ce four years, give bond and security, and take oaths, &c., 180. Form of his official oath, 435- Clerk's office to be always kept in Raleigh, 185. Clerk to record bills, &.c. and such other parts of their proceedings as the court shall direct — His pay therefor, 186. Clerk of the supreme court to make statements and returns of all moneys remaining in his hand for three years, 427. To whom such money to be paid over, 427. Penalty for failure to pay such moneys, 427. How to be proceeded against for failing to pay, 427. Statement of returns to be setup, &c.,428. Penalty for failure, 428. Salary of the clerk of the supreme court, 549. His fees, 556. CLERKS AND MASTERS IN EaUITY. Judges of the courts of equity to appoint clerks and masters, v/ho shall hold their offices for four years, 108, 176. How vacancies shall be filled, 103. Clerks and masters to give bonds and take oaths, as clerks of the superior courts of law. 108, 125. Form of their official oath, 435. Same remedies against them as against clerks of the superior courts of law, 108. Duty of clerks and masters in keeping a record, and enrolling bills, answers, decrees, &c., 103. Clerks and masters may administer oaths, 108. May take affidavits to be used before any justice, judge or court, 109. A tax of two dollars on every subpoena to answer a bill in equity shall be received by the clerk and master and accounted for to county ti-ustee, 124. Penalty for failing to make settlement with committee of finance, after ten days' notice, 128. Penalt}- for failing to pay over tax fees on suits, 131. Clerk and master to make title to property sold under an order of the court of equity, 183. Clerks and masters to make statements and returns of all moneys remaining in their hands for three years, 427. To whom such moneys to be paid over, 427. Penalty for failing to pay such moneys, 427. How to be proceeded against for failing to pay, 427. Statement of the returns to be set up in the court house— Penalty for failure, 428. Clerks and masters may act as notaries, 430. Fees for acting as notaries, 430. For remedy on their bonds against them and their sureties, see Official Bonds. Fees of clerks and masters, 556. Suits on the bonds of clerk and masters must be brought within six years, 374. CLERKS OF THE COUNTY AND SUPERIOR COURTS. To be elected every four years in the same manner as members of the General Assembly, 103. And by the persons qualified to vote for members of the General Assembly, 104. Who to declare the persons elected, 104. To hold their offices for four years, 104. County court, a majority of justices being present, to decide in case of a tie and to decide contested elections, 104. To give bonds, 104, 125. On failure to give bonds, &c. court to appoint another, 104. How vacancies in the office of superior court clerk to be supplied, 104. How in that of the county court clerk, 104. Judge, upon the appointment of a superior court clerk, to make an order for the surrender of the records, 104. 640 INDEX. CLERKS OF THE COUNTY AND SUPERIOR COURTS, (Continued.) Besides the bonds for accounting for taxes, &c. the clerks shall y;ive bonds in the sum of ten thou- sand doUars for keeping the records and the faithful discharge of their duty, 105. How the bonds of the clerks of the respective courts shall be proved and where deposited, 105. Bonds to be registered and copies to be evidence where the originals are lost, 105. to be kept as records, 105. Clerks to renevsr their bonds annually or to forfeit their offices, 105. Must produce receipts in full for all public moneys by them received before renewing, 105. Penalty for acting as clerk before giving bond and qualifying, 106. Oaths to be taken by clerks before entering upon their offices, 106. Form of their official oath, 435. Penalty for violating oath or misbehavior in office, 106. Clerks' offices to he kept at their respective court houses, 106. Deputies to be qualified and to act in case of the death of the clerk, 106. To whom clerk shall resign, 106. Countj' courts in certain cases may remove their clerks and appoint others, 106. Twelve months residence out of the county shall vacate the office of county court clerk, 100. , In such case how the clerk is to be proceeded against and removed, 107. Clerks, upon resignation or removal, to deliver over to their successors the records, &c., 107. All -writs shall run in the name of the State of North Carolina and bear test and be signed by the clerks of the respective courts, 16. Clerks of the county and superior courts may take affidavits to l)e used before any justice, judge or court, 109. • To pay to the treasurer all public moneys recovered by law and file receipts with the comp- troller, 112. Clerks may be allowed by the county court for extra services, 126. Clerk of the county court shall number all claims against the county in a book and annually fur- nish the chairman with a copy, 126. Penalty for failure, 126. His compensation for this service, 120. Clerks of county courts authorized to take probate of mortgages and deeds of trust, 232. Clerks to make statements and returns of all moneys remaining in their hands for three years, 427. To whom such money to be paid, 427. Penalty for failing to pay over, 427. How to be proceeded against for failing to pay, 427. Statement of returns to be set up in the court house — Penalty for failure, 42S. Clerks may act as notaries— Fees for the same, 430. Suits on the official bonds of clerks, &c. may be brought by the party injured, 443. Declaration must shew in whose behalf the suit is brought, 443. Person injured may at his election sue the officer in an action on the case, 443. Remedy before a justice of the peace against clerks and other officers who neglect to pay over moneys received within the jurisdiction of a justice, 443. Summary remedy in court against clerks and other officers failing to pay moneys received, 443. Twelve per cent, damages allowed on money unlawfully detained by an officer, 444. Clerks of the county court to record the names of the justices present when appointments are made, 444. Such justices failing to take bond, are to be held securities themselves, 444. Copy of the record to be evidence against them, 444. Clerks of the county courts to deliver deeds and pay over register's fees after ten days from the rise of the court, 501. Fees of clerks of the county courts, 552. of the superior courts, 554. Clerks to have no fee on a capias in certain cases, 554. In certain cases clerks to have only half fees, 554.. Clerks of the county and superior courts to keep a copy of the clerk's and sheriff's fees posted up in their offices, &c., 556. Clerks of courts may issue execution for fees in certain cases — Bill of costs to be annexed, 556. INDEX. 641 CLERKS OP THE COUNTY AND SUPERIOR COURTS, (Continued.) For the duties of clerks iu regard to appeals and proceedings in the nature of appeals, see Ap- peals and Proceedings in the Nature oj" Appeals. For clerks' duties in relation to auctions and auctioneers, see Auctions and Auctioneers. For clerks' duties in collecting and paying over taxes on suits and attorneys' licenses, and generally in relation to the county funds, see County Revenue and Charges. For clerk's duty in regard to issuing process and proceedings in court, see Courts, County and Superior-. For the duty of the clerk of the county court in regard to elections, see Elections. For clerks's duty in issuing summons to guardians to renew their bonds, or settle their accounts, see Guardian and Ward. Suits on clerks' bonds must be brought within six years, 374. As to the duty of the clerk of the county court in issuing licenses to marry, &c.. see Marriage. For the various duties of clerks in regard to the state taxes, see Revenue. Clerks of county courts to fui-nish sheriffs with orders appointing overseers of roads, 540:. COMMISSIONERS. Public commissioners becoming contractors, to be guilty of a misdemeanor, 200. COMMISSIONERS OF AFFIDAVITS. Clerks of county and superior courts and clerks and masters may take and certify affidavits to be used before any justice, judge or court, 109- If affidavit to be used out of their county, certificate to be under seal of the court, 109. Governor to appoint commissioners in other states to take the proof or acknowledgment of deeds, &c., 109. Such commissioners to take an oath, 109. Governor to notify clerks of courts of record of such appointments, 110. Power of such commissioners to administer oaths, &c., HO. Fees of commissioners of affidavits, 559. COMMISSIONERS OF NAVIGATION. See Pilots and Commissioners of Navigation, Quaran- tine and Health. COMMITTEE OF FINANCE. County Court may appoint three persons to act as a committee of finance, 127. Duty and powers of such committee, 127. Committee to make investigation of all the financial concerns of the county, and make return to the court at the end of each financial year, 127. Pay of the committee, 127. Any officer failing to settle after receiving ten days' notice from the committee, to forfeit one hun- dred dollars, 128. Oath to be taken by the members of the committee, 123. ' Penalty for refusing to serve on the comiTiittee, 128. Officers having claims against the county, how to proceed with the committee, 128. Clerks to furnish the committee with a statement of the sums allowed by the county court, 128. Committee may institute suit for the recovery of money belonging to the county, 129. County court to fill vacancies in the committee, 129. The committee of finance of the legislature at each session to examine into and report the state of the treasury, 602. COMMON LAW. What parts of the common law in force in this State, 110. COMMON SCHOOLS. See Literary Fund. COMPTROLLER. To be biennially elected by the General Assembly, 111. To give bond in twenty thousand dollars, to be deposited in the treasurer's office, 111. To take oaths. 111. Form of the comptroller's oath of office, 433. To settle ail public accounts and keep books, HI. To keep an account with the treasurer, 112. To have monthly settlements with the treasurer, 602. To keep accounts with individuals, 112. Public moneys, recovered by law, to be paid to the treasurer, and the receipts to le filed with the comptroller, 112. VOL. I. 81 642 . INDEX. COMPTROLLER, (Continued.) Balances of accounts to be stated annually and reported, 112. Comptroller to report annually a printed statement of the accounts of the treasury, 112. And a statement of the revenue from each subject of taxation, 112. In certain cases may administer an oath, 113. No warrants, &c. to be paid unless first entered in the comptroller's office, and certified by him, 113. Instrument for cancelling vouchers to be procured, 113. Comptroller's certificate to be evidence, 113. Salary of the comptroller, what and when to be paid, 549. Comptroller may have blanks, &c. printed for the use of his ofiice, at the expense of the State, 491. For comptroller's duty in relation to ' auctions and auctioneers, see Auctions and Auctioneers. For other duties of the comptroller in regard to the public revenue, see Revenue. Treasurer. CONGRESS. See Members of Congress. CONSTABLES. Number of constables in each county, 114. Constable to be elected annually in each captain's district, 114. To qualify before the county court and give bond, 114. Judges of election, how appointed, 115. Notice to be given and return made to the county court, llS. County courts to appoint, if any failure in the election, and to determine in case of a tie or contested election, 115. Penalty on persons, not qualified, voting, 115. Vacancies to be supplied by the county court, 115. Bond to be given and remedy thereon, 115. Oaths to be taken, 115. Form of their official oath, 436. Power and duty of constables, 115. Any justice may, in certain cases, appoint a special constable, 116. Penalty on constable for acting after his term has expired, 116. Constables exempted from working on roads, 116. Constables to be sworn to attend juries, 150. Form of the oath to be taken by a constable charged with a jury, 440. Form of the oath to be taken to attend the grand jury, 440. For a summary remedy on their bonds against them and their sureties, see Official Bonds. Fees of constables, 557. For a constable's duty in executing process and serving notices in proceedings before justices, see Justices of the Peace. Suits on constables' bonds must be brought within six years, 374. Constables to demand a view of the licenses of pedlers, rope dancers, &c., 516. CONSTITUTION. Constitution of the State and amendments thereto, 11. Constitution of the United States and amendments thereto, 28. CONTINGENT LIMITATIONS. Certain contingent limitations in deeds or wills, how construed, 259, 622. CONTRACTS. Contracts for the sale of land and slaves must be in writing, 290. Contracts of executors, &c. to be answerable out of their own estate, or contracts to charge any person with the debt, &c. of another, must be in writing, 290. Contracts with the Cherokee Indians must be in writing, subscribed by two witnesses, 290. Promises, &c. to pay money upon any kind of gaming, or lent for the purpose of gaming, void, 291. Contracts for the sale of offices to be void, 442. COOPERS AND COOPERAGE. See Inspection and Inspectors. CORONERS. To be appointed by the county courts, 117. Majority of justices to be present, 117. Bond to be given and renewed annually, 117. Three justices, in certain cases, may appoint, 1 1 7. * Oaths to be taken, 117. INDEX. "^^^ CORONERS, {Continued.) Form of coroner's official oath, 436. Duty of the coroner in holding inquests, 117. ,, rw „. cT^nvifT iir Whire there is no sheriff, properly qnaMed, coroner shall act -^ ^^^^^^f ^ J^^ ^^^• For a remedy on their bonds against them and their sureties, see 0^c^al Bonds. ?o:::e?r;;r;hesame bonds and talce the same oaths as the sheriff, when required to act as sheriff, in case of a vacancy in the sheriff's office, 567. CORPORATIONS. How to convey lands, 1 18. In suits against a corporation, summons to issue, 119. On whom the summons to be served, 119. How returned, 119. Suits in equity, how proceeded on, 119. What execution to issue on judgments against them, 119. When and how an information may be filed against a corporation, 1-0. Court may require a bond to be given by the relators, 120. How the supreme court may proceed to ascertain facts, 120. bring certam officers to account, &c., 121. members personally liable to In case of fraud hi members of a corporation, court may render sucU memoei p creditors and others injured, 121. „;.i„.l in it« nharter 121 No corporation to exist longer than thirty years, unless otherwise provided m its chartei, What length of nonuser to be a forfeiture of corporate privileges, 121 . Shares in incorporated joint stock companies to be personal estate, 121. The State to be a stockholder in any company to the amount she may advance, 348. COSTS. >,.„,„.v.t Kir lii«! wife to sive new security for the costs, 76. may be taxed against him, 66. Supreme court may give judgment for costs on appeals, 66. In attachments, bond and security to be given for the costs, 71-76. Persons interpleading in attachment to give security for costs 74. Attorney to pay costs when a suit is dismissed for want of a declaration, 81. Costs of scire facias to be paid by bail in certain -- J^^ • ,„„, fo, ,,,,, ^,y te re- Upon information filed agamst corporations, &c. on the relation om , quired of the relators, 120. . „^ lor Costs in criminal prosecutions to be paid by the counties in certain cases, 12o. County wherein the offence was committed to pay costs, 125. Costs of inquests to be paid by the county, 126. When plea in abatement is overruled, plaintiff shall recover costs, lo8. sufficient cause for such appeal is shown, 170. Costs in equity to be at the discretion of the court, ^81. Execution for costs, how issued from the supreme court, 188. 644 INDEX. COSTS, (Continued.) County and superior courts may, in certain cases, direct the prosecutor to pay costs 219. On warrants returned to court by a justice, upon a plea of want of assets, tlie costs to be the same as in appeals, 278. A creditor, on the trial of a scire facias against heirs, &c. shall recover the costs of the original suit, 364. In petitions for damages, caused by the erection of mills, where the verdict is that there is no dam- ages, the petitioner shall pay costs, or if damages be under five dollars, he shall have no more costs than damages, 424. If petitioner for damages, caused by erection of a mill, appeal and recover no higher damages, he shall pay the costs of the appeal, 424. Upon informations in the nature of quo warranto, the party succeeding shall recover costs, 499. Bill of costs to be annexed to execution for fees, 556. Owners of slaves to be liable for the costs of their trial in criminal cases, 583. The costs of the petition for a year's provision, to be paid by the administrator out of the assets of the estate — Proviso, 616. COUNCIL OP STATE. See Governor and Council. COUNTERFEITING. Counterfeiting gold or silver coin, how punishable, 204. Having in possession instruments for counterfeiting, how punishable, 204. Counterfeiting banknotes, &c., how punishable, 205. Passing or attempting to pass counterfeit notes, &c., how punishable, 205. COUNTY BOUNDARIES. In case of disputed lines between counties, the county courts of each county may appoint commis- sioners to settle them, 122. Commissioners to be sworn and to be paid, 122. COUNTY REVENUE AND CHARGES. County courts to lay taxes for county purposes, 123. County taxes to be collected by the sheriff in like manner as the state taxes, 123. Sheritfto give bond for the collection of the county and poor taxes, 123. All fines, &c. to be paid over to the county trustee, 124. Also taxes on attorneys' licenses, to wit, ten dollars in the superior and ten in the county courts, 124. Also a tax of one dollar on each suit and indictment disposed of in the county or superior court, 124. Also a tax of two dollars in each suit in equity, 124. Sheriff shall collect and pay over to county trustee all fines, amercements; &c., 124. And return the names of persons from whom received, 124. Clerk to render to the county trustees an annual statement of fines, &c., 124. Penalty of five hundred dollars on clerk, sheriflT, &c. for failing to pay over county moneys or m^^ke returns, 125. Clerks and clerks and masters to give bond for the payment of taxes, &c., 125. Cost of state prosecutions to be paid by the counties in certain cases, 125. Witnesses for the State to be paid by the counties in certain cases, 125. County wherein the offence was committed to pay costs, 125. Such county to receive the fines, &c., 125. County to pay the costs of inquests, 126. County courts may make allowances to certain officers for extra services, 126. Clerk shall number all claims against the county in a book, and furnish the chairman of the court with a copy annually, 126. And insert the claims, according to number, in the tax list furnished the sheriff, 126. Clerk failing to number the claims, &c. to forfeit twenty dollars, 126. Clerk to be allowed not exceeding four dollars for this service, 126. A statement of moneys received and expended for county purposes to be annually set up in the court house, 126. County court may lay taxes for the payment of the patrol, 126. And for the payment of jurors, 127. Power of the county court in disposing of the county funds, 127. County court may appoint three persons to act as a committee of finance, 127. Powers and duty of such committee, 127. INDEX. 645 COUNTY REVENUE AND CHARGES, {Continued.) Committee to investigate all the financial concerns of the county and report to the court at the end of each financial year, 127- Pay of the committee, 127. Any officer failing to settle after receiving ten days' notice, to forfeit one hundred dollars, 128. Oath to be taken by the members of the committee, 128. Fifty dollars penalty for refusing to serve on the committee, 128. Officers having claims against the county to submit them to the committee, 128. Clerk to furnish the committee with a statement of the sums allowed by the county court, 128. Committee may institute suit for the recovery of money belonging to the county, 129. County courts to fill vacancies in the committee, 129. COUNTY SOLICITORS. To be appointed by the county courts — Their term of office and duty, 80. Form of their official oath, 436. Fees of county solicitors, 552. *: €OUNTY TRUSTEES. To be appointed by the county courts annually, 130. County courts to fill vacancies, 130. County trustee to give bond and take oaths, 130. Form of county trustee's official oath, 436. To collect all moneys due his county, 130. To call annually on the sheriff and clerks for all moneys in their hands due his county, 130. If not paid, to move the county court for judgment against them, giving them ten days' notice, 130. Penalty on county trustee for breach of this duty, 131 . Penalty on sheriiTs, clerks, and clerks and masters, for failing to pay county trustee, 130, 131. County trustee to settle with sheriffs for claims according to number, 131. Compensation allowed county trustee, 181, 557. County trustees to settle with the courts annually, 131 . Penalty on county trustees for neglect of duty, 131. The county court, a majority of the justices being present, may abolish the office of county trustee and devolve the duties of such office on the sheriff, 131. County trustee to collect money due for strays, and to have six per cent, for collections, 596. COURT HOUSES, PRISONS AND STOCKS. County courts to erect and keep in repair court houses, prisons and stocks, and lay a tax for that purpose, 132. Jails to have four separate apartments, 133. Grand jury at each court to visit the jail and report on its condition, 133. County court to appoint a treasurer of public buildings — His duty— Bond to be given, 133. to fill vacancies in such office, 133. Treasurer of the public buildings to settle his accounts annually with the court, 133. Penalty for failing to settle, and how to be proceeded against, 134. What to be done when the treasurer of public buildings recommends alterations, repairs, &c., 134. Burning a court house, &c. punishable with death, 192. Attempt to burn a courthouse, &c., how punishable, 197. When the jail of any county shall be destroyed, the prisoners shall be sent to the jail of an adjoin- ing county, 478. Where there shall be no jail in any county, the courts and magistrates may send prisoners to the jail of an adjoining county, 478. In such cases the sheriff, &c. may confine any person arrested under process, civil or criminal, in the jail of an adjoining county, 478. Sheriff apprehensive of prisoners escaping, how to proceed to obtain a guard — Persons ordered on guard to be paid, 479. Claims for guarding, &c. prisoners, to be paid by the county from which they are sent, 479. Jailer to cleanse the jail and furnish diet, &c., 480. Blankets and bed clothing to be provided for the use of prisoners, 480. Prison bounds for the benefit of prisoners, to be laid out by the county court, 4S0. Manner of transferring prisoners from a sheriff to his successor, 4-^1. Prisoners to be confined in the proper apartments of the jail — Penalty on the sherifl^ or jailer for con- fining them otherwise, 481. 646 INDEX. COURTS, COUNTY AND SUPERIOR. Justices of the peace to be judges of the courts of pleas aiil quarter sessions, 139. At what times the said courts shall be held, 139, 140, 141. They may sit six days if the business shall require it, 141. One justice may adjourn the court from day to day until a sufficient number appear to do business, 141. Justices faih'ng to hold court, not to discontinue the court or any process thereon, 141. Three justices to hold the terms of the said court, 142. Their general jurisdiction, 142. Court may purchase such books as may be deemed necessary, 142. The court, a majority of justices being present, may appoint a special court, &c., 1 42. Justices of the special court to be paid, 142. Penalty on clerk for abusing the books purchased, 143. Court may lay a tax for purchasing books, 143. A superior court to be holden in each county, 143. The State divided into seven circuits, 143. Counties composing each circuit, 143. When the superior court holden in the first circuit, 143. ' When in the second circuit, 144. When in the third circuit, 144. When in the fourth circuit, 144. When in the fifth circuit, 145. When in the sixth circuit, 145. When in the seventh circuit, 145. The superior courts shall sit one week in each county, unless the business be sooner determined 143. ' The superior court of Anson to continue two weeks at the fall term if the business require it, 145. The terms of Mecklenburg, Buncombe, Burke and Rutherford superior courts to continue two weeks, when necessary, 145, 146. The superior courts may be kept open in any county longer than one week, for the purpose of clos- ing a trial in a capital case, 146. The said courts shall be holden by judges, 146. The judges to be chosen by the General Assembly and commissioned by the governor, and to hold their offices during good behavior, 13, 21- May be impeached, 23. May be removed from office by concurrent resolution of two thirds of both branches of the General Assembly, 23. Their salaries shall not be diminished during their continuance in office, 23. ■ Salaries of the judges of the superior courts, 549. General powers and jurisdiction of the judges, 14 6. Oaths to be taken by the judges, 146. To be subscribed by the judges and returned to the secretary of state, 145. Penalty on judge-for acting without taking the oaths, 14G. Form of the oath to be taken by judges of the superior court, 433. Judges to allot the circuits among themselves and publish the same, 146. May exchange circuits, 147. If no judge attend the first day of the term, the sherifi" may adjourn from day to day till the third day, 147. County court to form a jury list from the list of taxables, taking none but persons well qualified, 147. Jury list to continue and be examined every two years, 147. The number of jurors to be drawn for the superior courts, and how they are to be drawn , 147. Number to be drawn for the county courts and how drawn, 148. Persons having suits in court not to be drawn, nor justices in the county courts, 143. On failure of the county court to draw jurors, the sheriff" and clerk with three justices may draw them, 143. County courts may dispense with a jury at two of their terms, 148. Jurors how to be summoned — Shall attend till discharged by the court, 143. Tales jurors may be summoned when necessary, 149. INDEX. 647 COURTS, COUNTY AND SUPERIOR, {Continued.) Penalty on jurors for not attending when summoned, 149. Juror to have till succeeding term to make his excuse, 149. Penalty on tales jurors for not attending, 149. Jurors exempt from service of civil process 149. Ministers of the gospel and regular physicians exempt from serving as jurors, 149. Grand jury, how to be drawn, 149. Quakers competent to serve as jurors in criminal cases, 149. How the petit jurors shall be sworn in civil cases, 150. How in state cases not capital, 150. Proviso that the usual challenges shall not be affected, 150. Names of the jurors to be called over in the hearing of the parties before empanelling them, when each party may challenge four peremptorily, 150. Actions, where to be brought, 150. Actions, otherwise brought, to be abated on plea, 151. No suit to be brought in any court for any claim under sixty dollars on an unliquidated account, &c., nor for a sum under one hundred dollars due by note, &c., 151. If a suit be commenced in the county court for a sum under sixty dollars, due by account, it may be abated- — If for a sum under one hundred dollars, due by-note, 6z,c., it may be dismissed, 151. If a suit in either of these cases be commenced in the superior court, it shall be dismissed, 151. In either of those cases in the superior court, where the suit is commenced for more aad the jury find less to be due, the plaintiff to be nonsuited unless he file an affidavit that more is due, 151. Not to extend to suits on penal bonds, &c., 151. The day when process issues to be marked thereon and the sheriff to endorse the day when he re- ceives it, 152. Clerks to take security for costs before issuing any writ or other leading process, otherwise the suit may be dismissed, 152. Proviso in favor of persons suing in forma pauperis, 152. Clerks to enter in a book the names of parties to suits and their sureties, 152. Penalty on clerks for issuing process without taking security, 152. Poor persons may sue OT./or??iapawpe7-is, 153. When writs may issue to different counties at the same time, returnable to the county or superior courts, 153. The real plaintiff in ejectment to give security for costs, 153. Persons desiring to be made defendants in ejectment must give a bail bond, 153. Where plaintiff in ejectment makes an affidavit that defendant entered into his land as his tenant &c., defendant shall not plead, until he gives bond for the costs and damages, 153. What facts in such case the jury are to find, 154. If they find for the plaintiff, they must assess damages for the occupation, &c., 154. Defendant may rebut plaintiff's affidavit by his own, 154. If plaintiff in ejectment does not give security for costs, his suit to'be dismissed, 154. Defendant to give bail or be in custody before pleading, 154. Writs and other civil process, when to be returned, 154. How long before court to be executed, 154. When sheriff returns that he has defendant in jail, how plaintiff to proceed, 155. No female shall be taken or imprisoned for debt, 155. How plaintiff may proceed when sheriff returns that defendant is not to be found, 155. May sue out an alias era judicial attachment, 155. Goods taken on a judicial attachment and not replevied may be sold on final judgment, 155. On return of sherifi" that defendant is not an inhabitant of his but some other county, an alias shall issue to the county where defendant resides, 155. Times at which the sheriff shall not execute civil process, 155. If there be in any county no proper officer to execute process, or he refuse to do so, any judge may direct the sheriff of an adjoining county to execute the same, 156. Additional compensation to sheriffs for executing process out of their county, 156. Sheriff failing to execute and return process, to forfeit one hundred dollars and be also liable to in- dictment, 156. Rules of court, 157. I 648 INDEX. COURTS, COUNTY AND SUPERIOR, (Continued.) Declaration to be filed within the three first days of the term or the suit to be dismissed, 157. Defendant to appear and plead or demur at the same term, 157. When special pleading required, the time may be enlarged, 157. Writ of inquiry as to the value of foreign currency, to be executed at the same term with the judg- ment, 157. Plaintifi'to reply or demur at the same term, 157. Other pleas to be filed and issues made up at the same term, 157. Time may be allowed to argue demurrer, bill of exceptions, &c., 157. Parties may enter their own pleas, 157. Clerk to enter proceedings of court in a well bound book, 157. Jury causes to be first tried, 157. Motions in arrest of judgment, when to be argued, 157. Argument causes, when to be argued, 157. No plea in abatement to be received but on affidavit or proof, 158. When plea in abatement is overruled, plaintifi" shall recover costs, 158. As many pleas as may be thought necessary may be pleaded, 153. A plea since the last continuance not to be a waiver of former pleas, 158. All issues to be tried at the succeeding term after being made up, l58. No cause to be continued but by consent of parties, or on affidavit, 158. Court may order a party continuing to pay costs, 158. Not more than one attorney to speak in any cause, 158. Attorney appearing in any cause to produce and file a power of attorney, if required, 153. When necessary for the attorney to retain the power, what to be done, 158. No attorney to enter an appearance until the power is produced, if required, 158. In actions upon penal bonds, &c. plaintiff may assign as many breaches as he thinks fit, 159. If judgment be given for the plaintiff on demurrer, &c. he may suggest as many breaches on the roll as he thinks fit, 159. Defendant may pay damages and costs into court, and if so, no execution shall issue, 159. Judgment shall continue and be a security for further breaches, 159. PlaintifTmay have sd. fa. upon such judgment, 159. Rules for taking testimony and summoning witnesses, 160. SubpcEna for witnesses, how to issue, 160. Subpcena returnable immediately, when to issue, 160. How subpoena may be served, 160. Witnesses to attend from term to term, till discharged, 160. Penalty on witnesses for non-attendanee, 1 60. Witnesses entitled to pay, if they attend after the suit is settled in vacation, unless notified, 160. Witness swearing falsely to obtaui a ticket, guilty of perjury, 161. How witnesses shall be exonerated from forfeiture and costs for non-attendance, 161. In what cases depositions of witnesses may be taken, 161. Clerk to pass upon all depositions, 161. Notice to be given to the adverse party, of the time and place of taking depositions, 161. When depositions of witnesses may be taken before cause is put at issue, 162. Witnesses refusing to give testimony in court or before commissioners, to be committed, 162. During their attendance, to be exempt from the service of all civil process except subpcpnas, 162. Pay of witnesses for their attendance, 162. After the removal of a cause, subpoenas and commissions to take testimony may be issued from either court, 162. Witnesses to prove their attendance at each court, 163- How witness may recover his pay for attendance, 163. Witness ticket to be filed with the clerk to be taxed in the bill of costs, 163. Costs of publication and postage of letters covering process, to be taxed, 163. SubpcEnas for witnesses to attend commissioners, how to be issued, 1 63. Pay of witnesses for attending commissioners, &c., 163. The party in whose favor judgment is given, to recover full costs, 163. Defendant may, in certain cases, plead a set-off or give it in evidence under the general issue on no- tice to the plaintiff, 164. Testimony of colored persons incompetent against white persons, 164. INDEX. 649 COURTS, COUNTY AND SUPERIOR, (Continued.) Admissible against each other, 164, When in slander and assault and battery, the plaintiff shall not recover more costs than damages, 164. In trespass quare clausum freg'it, defendant may disclaim and plead tender, &c., 164. If the jury find the trespass involuntary and the tender in favor of defendant, plaintiff shall be barred, 164. In actions of trespass, &c. if there be more than one defendant, and one or more be acquitted, the persons so acquitted shall recover full costs, unless the judge certifies, &.C., 164. In what case a subpwna duces tecum- may issue, 165. Court may order either party to produce books or papers, 165. Consequences of a refusal to produce, 165. In petitions for dower or partition the costs at the discretion of the court, 165. Action may be brought against the maker of a bill, &c. jointly with the endorsers, or against all or any one of them, 1 C5 . On joint obligations, &c. of copartners, &c. action may be brought against all or any one or more, 165. Joint obligations shall survive against heirs, executors, &c. of deceased obligor, 166. How judgment is to be entered when the suit is against the executor, &c. of deceased obligor and the survivor, 166. When more actions than one are brought on a promissory note, &c. court may consolidate them, 166. Judgment bonds, &c. void as to power to enter judgment, but good as common bonds, &c., 166. Where a defendant to a suit in the county court removes himself or his property, the clerk may issue an execution to any county, 166. In actions for money due by contract, except penal bonds, jury must distinguish between principal and interest ; and the judgment for principal shall carry interest, 166. In action on single bill, &c. if defendant make no defence, clerk may calculate interest, without a writ of inquiry, 167. Petitions may be filed in vacation, 167. Clerk to issue capias upon petition making affidavit of the amount of his demand, 167. When a petition is served on one of several defendants and the others reside out of the State, the court shall order publication for five weeks, 1 67 . Court may order the clerk to audit and settle accounts, 167. Any two justices may take depositions to be read on petitions, 163. Fees of clerk on petitions, 168. Infants may sue by their next friend, 168. Either party to a suit may tender to the judge a bill of exceptions, 168. Judge to sign and seal the same, or if he refuse some other person present may sign and seal it, 168. Actions of account may be brought against the executors and administrators of guardians, &c., 168. If an action for any penalty be brought in good faith and defendant plead a former judgment, plain- tiff may reply fraud, &c., 168. In an action of debt on a bond, &c. payment may be pleaded, 169. In an action of debt on a bond with a penalty, if defendant bring into court the principal, interest and costs, the bond shall be deemed discharged, &c., 169. Judgment of a court to stand till reversed, 169. Upon an appeal by defendant from a justice's judgment or recordari obtained by a defendant, court may compel plaintiff to give security for costs, 169. Appeals from a justice to be tried the first term of the county court, 170. Party cast to pay all costs, 170. If plaintiff appeal from a judgment in his favor by a justice, it shall be at his costs unless sufficient cause for such appeal be shown, 170. Appeals from the county to the superior court, how to be tried, 170. The increasing day in leap year, how to be counted, 170. No execution to issue on a judgment after a year and a day, without a scire facias to revive, 170. Plaintiff shall not be nonsuited after verdict, 170. Party committed on execution not to be discharged on habeas corpus, 170. The death of either party between verdict and judgment-shall not be assigned for error, 171. VOL. I. S2 650 INDEX. COURTS, COUNTY AND SUPERIOR, (Continued.) Administrator rfe bonis non may have execution on judgment obtained by former administrator, 171. In suits upon the bonds of administrators, &c., on motion at the appearance term, a reference may be had to have an account stated, 171. Any cause in the superior court, either civil or criminal, may be removed on affidavit to an adjoin- ing county for trial, 171. The parties to any suit may remove the same to a convenient county by consent, 171. On the removal of a cause, the clerk to send a transcript together with the depositions, &,c. filed therein, 172. Cause to be removed on affidavit not more than twice, 172. In suits involving questions of boundary, the court may order a survey, 172. Proceedings thereupon, 172 Clerk not to affix the seal of the court to process to be executed within the county, 172. Sheriff to serve all notices that may be necessary in any proceeding in law or equity, 172. How such notices to be served. 173. Penalty on officer for failing to serve notice or making a false return, 173. Notice may be given and proved as heretofore, 173. The return of a sheriff on a scire facias that he has executed the same, sufficient evidence of a service, 173. Defendants on trial may show that they are sureties, and the jury or justice to discriminate the prin- cipal from the sureties, 173. In such case the officer shall levy first on the property of the principal, 173. Property of the principal shall be first sold, 173. A judgment for costs may be given against the plaintiff, and the sureties to his prosecution bond, upon his failing to prosecute with success, 174. Defendant, against whom judgment is rendered, may pay the money to the clerk before the execu- tion issues, 174. Clerk to pay over the same to the party entitled to receive it, 174. Judge, how to deliver his charge to the jury, 174. Quakers may wear their hats in court, 174. County courts to bind out orphan children, 67. In what cases county courts may bind out free persons of color, 63, 589. County courts to lay taxes for county purposes, 123. may make allowances to certain officers for extra services, 126. may lay taxes for the payment of the patrol, 126. may lay taxes for the payment of jurors, 126. Power of the county courts in disposing of the county funds, 127. County court may appoint a committee of finance, 127. County courts may lay a tax for keeping court houses, prisons and stocks in repair, 132. to lay taxes for the support of the poor, on the application of the wardens, 473. Such courts may also lay taxes for the erection of poor houses, 474. For powers of the county courts in ordering the laying out of roads, settling ferries and building bridges, see Roads, Ferries and Bridges. COURTS OF EQUITY. Each superior court of law shall also be a court of equity, 176. Style of the court, 176. Clerk and master to be appointed, 108, 176. Rules of court, 176. Plaintiff may file bis bill in term time or in vacation, 176. When the plaintifi states his debt or damages on oath, a capias may issue to take the body of the defendant, 177. Form of the writ, 177. Officer executing it liable as special bail for taking an insufficient bond, or failing to take any bond, 177. No capias to issue against an executor, administrator or heir, 177. Penalty on executor, &c. for not appearing, 177. How to proceed when there are two or more defendants, 177. INDEX. 651 COURTS OP EQUITY, (Continued.) Co-pY of the bill and subpcena to be served on defendant ten days before return court, or the suit to be abated, 173. Defendant to plead, answer or demur at the return term, or the bill to be taken pro conjesso, 178. Defendant may show cause within the three first days of the ensuing term, and then the order set aside, 178. Court may allow such time for pleadings as they may think proper, 178. When the defendant cannot be found or resides out of the State, court may order publication to be made, 173. Publication, how to be made, 178. On publication being made, court may grant plaintiff a decree, unless defendant appear and plead, &c., 179. Plaintiff, in ease of such decree, to give security as the court may order, 179. If such decree be against a person residing out of the State, a copy of it must be served on sach per- son, if, within two years after the decree, he comes into the State, 179. If such defendant dies within two years, a copy to be served on his real or personal representatives, 179. Decree to be absolute, if no petition for rehearing within twelve months after copy served, 179. Defendant may petition for rehearing within twelve months from service of a copy, or within three years, when no copy served, and upon paying or giving security for the costs, may answer the bill, &c., 180. Decree in such case to be final, if no petition for rehearing is filed within three years, 180. Such decree not to be made against a person residing out of the State, unless the bill is founded on transactions which took place in this State, 180. ■ Commissions to take testimony may be directed to any two justices of the peace, 180. Twenty days' notice to be given, unless a longer or shorter time is ordered by the court, 180. Commissions may also issue to take the answer, &c. of the defendant, 181. Judge may issue such commissions in vacation, or may himself examine testimony, &c., 181. may also grant injunctions and issue writs of Tie exeat, 181. Court may direct the trial of such issues as it thinks necessary, 181. Court's power as to costs, as to requiring security from the defendant, and as to issuing process to enforce its decrees, 181 . Sheriffs to serve notices issuing from clerks and tnasters, 181- Executions may issue as at law and have the like binding effect, 181. Decree for the costs of the defendant may be made against the surety for the prosecution as well as against the principal, 181. On defendant's death after service, a sci.fa. may issue to make his representatives parties, 182. When plaintiff dies, his representatives may make themselves parties within two terms there- after, 182. No bill, answer, &c. to be enrolled, till final decree, 182. Court to direct what papers to be enrolled, 182, No injunction to stay an execution shall issue for a greater sum than plaintiff swears to be just, nor until after security given, 182. No injunction to issue after four months from the judgment at law except in certain cases, 182. Injunction bonds, after dissolution of injunction, to be proceeded on like appeal bonds, 162. On what terms injunctions to stay executions on behalf of the State will be allowed, 183. Court to appoint a guardian for an infant, or non compos defendant, residing out of the State, 183. Such infant, «fcc. to have three years after the decree, &c. to appear in court, &c., 183. Any cause may, after it is set for heari.ig, he removed to the supreme court, 183. Time within which bills of review and petitions for rehearing will lie or be allowed, 133. Clerk and master to make title to property sold under an order of the court, when the court so directs, 183. Infant trustees to convey under the direction of a court of equity, 234. Power of the court of equity in relation to orphans and their estates, not to be abridged by the powers given to the county and superior courts, 313, 370. A court of equity may direct a sale of the real or personal estate of infants, if such sale would pro- mote the interest of the infants, 313. Manner in which such sale shall be made, and how the proceeds shall be applied and secured, 314. 652 INDEX. COURTS OF EQUITY, (Continued.) For what purpose, and in what manner, a court of equity may order a sale of the real estate of an idiot or lunatic — Provisos, 319. Court of equity may order a sale, where the idiot or lunatic's land is wanted for public purposes — ■ Proviso, 320. Court of equity may order a sale of real estate for division, when it cannot be divided otherwise without prejudice to the parties, 452. Court of equity may order a sale of real estate required for public purposes, upon the petition of the tenants in common, 452. Where the sale shall be made, 452. The deed of the clerk and master shall convey title, 452. Where there is dower on the land, the court may decree a sale, and apportion the dower interest, 453. COURT, SUPREME. Three judges of the supreme court to be appointed by the General Assembly, 184. Supreme court to be holden in Raleigh twice in each year, on the second Monday of June and last Monday of December, 1S5. Clerk's office to be always kept in Raleigh, 185. Judges to take oaths before acting, 185. Form of the official oath of the judges, 433. Incase of sickness, &c. two judges may hold the court, 185. A chief justice to be chosen by the judges, 185. Powers and authorities of the judges, 185. Power and jurisdiction of the court, 185. How executions to issue and be returnable, 186. How the decisions of the court to be transmitted to the court below, 186. Judges to appoint a clerk, who shall give bond with security and take oath of office, 186. Clerk to record bills, &c. and such other parts of the proceedings as the court shall direct, 186. Clerk's pay for such services, 186. Judges to prescribe rules of practice for the superior courts, 186- Upon appeals from interlocutory judgments or decrees, what judgment the supreme court shall give and how it shall be certified, 187. Exhibits in equity cases in the supreme court may be proved there by witnesses, 187, Rules as to such witnesses, 187. Judges to deliver their opinions in writing, 187. Clerk not to give a certificate nor to issue executioUj till the opinion is filed, 187. Power of the court to amend proceedings, 187. May allow the taking of further testimony, 187. Clerks to transmit to the courts below certificates of decisions, 187. Execution for costs, how issued, 187. Judges shall annually appoint a reporter, 187. His duties and compensation, 187. When the clerk shall perform the duties of reporter, 187. His compensation therefor, 187. The sheriff" of Wake to attend the supreme court, 188. Judges of the supreme court to license attorneys at law, 81. Informations against corporations maybe filed in the supreme court, 120. How the supreme court may proceed to ascertain facts in such cases, 120. Supreme court to have original jurisdiction in suits by the State to repeal letters patent, 256. Salaries of the judges of the supreme court, what and when to be paid, 548, 549. Salary of the clerk of the supreme court, 549. His fees, 556. CREEKS. See Rivers and Creeks. CRIME AGAINST NATURE. Crime against nature punishable with death, 192. CRIMES AND PUNISHMENTS. Benefit of clergy taken away from murder, burglary, arson, and robbery on the highway, 191. And from the accessories to those crimes before the fact, 191. Fighting a duel, when one party is killed, punishable with death, 191. Castration with malice aforethought, punishable with death, 191. INDEX. 653 CRIMES AND PUNISHMENTS, (Continued.) Rape, or carnally knowing any female under ten years of age, punishable with death, 192. Crime against nature, punishable with death, 192. Burning a public building, punishable with death, 192. Felony punishable with death, to break open houses in the day time and steal therefrom to the amount of two dollars and upwards, 192. Killing a slave homicide as at common law, 192. Stealing slaves punishable with death, 192. Concealing, &c. a slave, with intent to remove him out of the State, punishable with death, 192. Taking a free person of color from this State to another with intent to sell him, punishable with '\ death, 193. -* Malicious maiming, how punishable, 193. Bigamy, what shall be and how punishable, 193. not to be applied to a person, whose husband or wife shall have been absent seven years, without knowledge of his or her existence, 193. nor to those who have been divorced, 193. Horse stealing, how punishable, 194. Burning bridges, 194. Circulating seditious publications among slaves, 194. Endeavoring to excite insurrection among slaves bywords, 194. Servants embezzling their master's goods, 194. Breaking prison, when a capital offence, 195. Forgery, how punishable, 195. Conviction of grand larceny to make the offender infamous, 195. Robbery of or stealing bank notes, &e. how punishable, 195. Stealing growing corn, &c. larceny, 196. Benefit of clergy not to be allowed twice, 196. Clergiable offences, how punished, 196. How offenders to be dealt with after having been allowed their clergy, 196. Benefit of clergy shall not release from an offence not clergiable, previously committed, 197. Women entitled to benefit of clergy, 197. Concealing the birth of a bastard child, how punishable, 197. Forfeiture for suicide abolished, 197. Attempt to burn a public building, how punishable, 197. Embezzling records, &c., how punishable, 198 Buying and selling offices prohibited, and how punishable, 198. Jurors taking bribes, and those who bribe them, how punishable, 199. Sheriff or other officer, wilfully or negligently suffering a criminal to escape, how punishable, 199. Duty of the attorney general and solicitors in such cases, 200. Breaking up an election, how punishable, 200. Public commissioners becoming contractors, to be guilty of a misdemeanor, 200. Overseers of roads to be indicted for neglect of duty, 200. Owners of water mills indictable for not keeping up bridges, 200. Persons not keeping lawful fences indictable, 200. Trespasses on public lands indictable, 201. Punishment of vagrants, 201. Hawking and peddling without a license, how punishable, 202. Fornication and adultery, 202. Marrj-ing a female under fifteen, without the written consent of her father, indictable, 202. Unlawful maiming without malice, how punishable, 202. Sending, accepting or bearing a challenge to fight a duel, how punishable, 202. Perjury, 203. Subornation of perjury, 203. Proviso as to cutting off ears, 203. Accessories to felonies, how punishable in certain cases, 203. Receivers of stolen goods, &c., how punishable, 204. Altering the mark or mismarking cattle, &c., 204. Holding out false lights on the sea coast, 204. Counterfeiting gold or silver coins, 204. 654 INDEX. CRIMES AND PUNISHMENTS, (Conlinued.) Having in possession instruments for counterfeiting, 204. Counterfeiting bank notes, &c., 205. Passing or attempting to pass counterfeit notes, &c., 205. Cheating by false tokens, 205. Punishment for carrying on lotteries, 206. For selling tickets, &c. in lotteries, 206. Gaming tables prohibited, 206. Justices, &c. directed to destroy them, 206. Penalty for keeping them up, 206. Billiard and backgammon tables excepted, 207. Money staked for betting may be seized, 207. Penalty for opposing the destruction of the tables or the seizure of the money, 207. Penalty for suffering gaming tables in one's house, 207. Sheriff to sue for the penalty, 207. To keep gaming tables or to play at them indictable, 208. Persons playing cards in a public house indictable, 208. Tavern keepers and retailers of spirituous liquors indictable for suffering gaming in their houses, 208. Stealing or selling free negroes in this State, how punishable, 208. The clerk who issues a license for the marriage of a free negro, &c. with a white person, and the justice, &c. who marries such persons, subject to indictment, 208. Harboring runaway slaves, how punishable, 209. Teaching slaves to read or write, the use of figures excepted, indictable, 209. , Penalty for trading with slaves for certain articles, 209. Proviso that such trading may be in the day time and with the written permit of the master, 209. Proviso not to extend to spirituous liquors, fire arms, powder, shot or lead, 210. Penalty on masters of vessels f r entertaining slaves and free persons of color on board their vessels at certain times without a written permit, 210. Trading with slaves indictable, 210. What circumstances shall be taken as presumptive evidence of such trading against the owners of stores and shops, 210. Penally for fraudulently giving to a slave a written permit to trade, 210. Appeals allov>red in cases of prosecutions and indictments for trading with slaves, 211. Retailing spirituous liquors by the small measure, without a license, indictable, 211. Sheriff to furnish county attorney with a list of those having licenses to retail, to be laid before the grand jury, 211. Hunting in the woods with a gun by firelight indictable, 211. Persons sending their slaves into the woods so to hunt, how punishable, 212. An accomplice in fire hunting, giving evidence against his fellow, to be discharged, 212. Penalty on any person or corporation for issuing due bills, 212. For passing or receiving due bills, 212. For passing or receiving a check on any bank for a sum less than one dollar, 213. These offences also indictable, 213. Any person or corporation issuing notes to pass for money without being authorized by law so to do, indictable and how punishable, 213- Fines and penalties for these offences, how appropriated, 213. Forcible entry punishable by indictment, 285. Millers indictable for keeping false measures in their mills, 422. For the crimes and punishments of slaves and free persons of color, see Slaves and Free Persons of Color. Stealing or embezzling wrecked property to be larceny, 629. CRIMINAL PROCEEDINGS. Duty of magistrates in committing criminals, 215. Duty of sheriffs and other officers in arresting felons, 215. No person to be imprisoned but in the common jail, 215. Governor may employ an agent or offer a reward for the apprehension of fugitives from this State charged with capital offences, 215. Judges or any two justices may commit fugitives from other states, charged with certain criminal offences, 216. <-->■. INDEX. 655 CRIMINAL PROCEEDINGS, (Continued.) No person to be arrested on a presentment before indictment found, 216. Name of the grand jurors giving information or of the witness to be endorsed on a presentrnf-at, 216. Indictments for misdemeanors, with certain exceptions, must he commenced within two years, 216. Proviso when the judgment is arrested or a nolle prosequi entered, 216. When criminal process may issue and be returnable, 217. Criminal proceedings to be as heretofore in use, 217. Sheriffs to take bail, when the offence is bailalile, 217. Persons accused entitled to counsel, 217. No indictment to be quashed or judgment arrested for merely formal objections, 217. ' * In an indictment for a libel the defendant may give the truth in evidence, 217. When an assault is in one county and the death in another, the offender may be tried where the assault was made, 217. When an assault is made in this State and the death is out of it, the offender may be tried in this State, 21S. Plea to be entered for a defendant when he stands mute on a criminal charge, 218. In capital cases the judge may issue a special venire facias, 218. Penalty on the sheriff for not executing it, and on the jurors for not attending, 218. In capilal cases the defendant may challenge thirtyfive jurors, in others four, and may have the assistance of counsel in making such challenges, 218. In capital cases the State's counsel may challenge four jurors peremptorily, 218. Peremptory challenges beyond the number allowed by law, void, 219. On conviction of a felon ibr robbing or stealing goods, &c. the goods shall be restored, 219. Court may in certain cases, direct the prosecutor to pay costs, 219. New trial may be granted by the court when the defendant is convicted, 219. Special days to be appointed for the trial of State cases, of which the clerk must give notice, and issue subpoenas, &c. accordingly, 219. How the petit jurors shall be sworn in cases not capital, 220. Pay of witnesses in State cases and how they shall be paid, 220. Judges of the superior courts may mitigate recognizances, both before and after judgment, 220. Clerks to refund when the remitted forfeiture has been paid, 220. County trustee to refund when such remitted forfeiture has been paid over to him, 220. County courts may remit fines ; and also forfeitures before judgment, 221. Appeals allowed on judgments on forfeited recognizances, 221. No execution to issue on a forfeited recognizance, &c. until after a scire facias, 221. Clerks to issue a joint sci.fa. against the principal and his sureties on a recognizance, 221- How such sci.fa. to be executed, 221. Such sci.fa. to be entered as one suit against the principal and his sureties, 222. One set of costs only to be collected except when the defendants plead separately, 222. Every man entitled to be informed of the accusation against him, to contront his accusers and wit- nesses, and not to give evidence against himself, 7. No freeman to be made to answer but by indictment, presentment or impeachment, 7. No freeman to be convicted of any crime but by the unanimous verdict of a jury, 7. When persons committed for treason or felony shall be entitled to a trial or discharge, 316. For criminal proceedings in regard to slaves and free persons of color, see Slaves and Free Per- sons of Color. CURRENCY. The currency of the United States recognized as the currency of this State, 222. Records and all other papers and proceedings to be kept in dollars and cents, 222. Fee bills to be made out in dollars and cents — Receipts to be given in the same, 560. DEBTORS. See Insolvent Debtors. Persons removing debtors to hinder, delay or defraud creditors, to be liable for their debts, 290. DEEDS AND CONVEYANCES. Deeds, &c. for land to be proved or acknowledged, and registered in the county where the lands lie, 224. Deeds so registered to pass land without livery, &c., 224. Copy of a deed from the register's office good evidence when the original is lost, 224. Grantees may have witnesses summoned to prove their deeds, 224. 656 INDEX. DEEDS AND CONVEYANCES, (Continued.} County court may issue a commission to take probate when the witnesses or grantors are out of the State, 224,225. How deeds, powers of attorney, &c. executed out of the State, but within the United States, may be proved and registered. 225. How proved and registered when made in foreign countries, 226. Further provisions for the probate and registration of such deeds, &c., 226. • County court may issue a commission to foreign parts to take probate, &c.,226, 227. How deeds executed by husband and wife shall be proved or acknowledged and registered, 227. Provision when the wife is sick, or a resident of another county, 227. Form of the commission to take the private examination of a^eme covert, 227, 228. Conveyance under a power of attorney from husband and wife, valid to pass lands, 228. How deeds and powers of attorney from husband and wife, living out of this State but in the United States, may be proved, &c. and registered, 228, 229. How, when husband and wife live in foreign parts, 229. Powers of attorney for the sale of lands, how to be proved, &c. and registered, 229. Other powers of attorney, how to be proved, &c. and registered, 230. Gifts of slaves must be in writing, attested and registered — Proviso as to advancements to chil- dren, 230. Deeds of gift to be proved and registered, 230. All sales of slaves must be in writing, attested and registered, except bona fide sales, accompanied with a transfer of possession, 230, 231. All written transfers of slaves must be registered in the county where the purchaser resides, unless the seller is to retain possession, &c., 231. Such transfers of slaves to be proved on any trial by the subscribing witnesses, if to be found, 231. Certain limitations of slaves by deed to be valid, 231. No mortgage or deed in trust good against creditors, unless registered within six months, 231. Mortgage or deed in trust good against creditors, &c. only from the date of the registration, 231. Clerks of the county courts authorized to take probate of mortgages and deeds of trust, 232. Register to endorse on each mortgage, &c. the day he received it, and to register it in the order of delivery, 232. What remedy the last mortgagee shall have when there is more than one mortgage in force at the same time. 232. Where an action is brought to recover money secured by mortgage, or for the mortgaged property, the defendant may be discharged by bringing the money due on the mortgage into court, 232. Proviso where the defendant denies the right of redemption, &c., 233. Marriage settlements to be proved and registered, 233. What marriage settlements shall be good against creditors, &c., 233. Infant trustees or mortgagees, how to convey lands, 234. Errors in the registration of deeds, «fec., how to be corrected, &c., 234. Further time allowed for registering deeds, &c., 235. Certain contingent limitations in deeds or wills, how construed, 259, 322. In conveyances to uses, the possession shall be transferred to the use without livery of seizin, 259. Certified copies of deeds from other states to be received as evidence, 263. Deeds for lands, contracted to be sold by deceased, may be made by executors and administra- tors, 279. Clerks to deliver deeds and pay over register's fees after ten days from the rise of the court, 501. Registers to call upon the clerks for the deeds, &c. within twenty days from the rise of the court, 501. Penalty on registers for delay in registering deeds, &c., 501. Registers to leave deeds, &c. which they have registered, at the county court, 502. County courts may have register's books transcribed, and copies from said books shall be evi- dence, &c., 502. DEER. See Himiing. DELEGATES TO STATE CONGRESS IN 1776, 5. DEPOSITIONS. In what cases depositions of witnesses may be taken, 161. Clerk to pass upon all depositions, 161. Notice to be given to the adverse party of the time and place of taking depositions, 151. INDEX. 657 DEPOSITIONS, (Continued.) Under what circumstances depositions of witnesses may be taken, before the cause is put to issue, 162. Witnesses refusing to give testimony in court or before commissioners, to be committed, 162. After the remoTal of a cause, subposnas and commissions to take testimony may be issued from either court, 162. Subpasnas ior witnesses to attend commissioners, &c., how to be issued, 163. Pay of witnesses for attending commissioners, &c., 163. Any two justices may take depositions to be read on petitions, 168. Depositions may be taken in contested elections for governor, 305. Depositions of witnesses, when allowed to be read on a trial before a justice, 356. For depositions in equity, see Courts of Equity. DESCENTS. Rules of descent, 236. Rule 1. Lineal descent, 236. •,. ,, u-m t> • 2. Females to inherit equally with males, and younger with older children— Proviso as to a child advanced, 236» 3 Lineal descendants to represent their ancestors, 236. 4 Collateral descent where the inheritance has been transmitted from an ancestor, 237. 5' Collateral descent where the inheritance has not been transmitted from an ancestor, 237. 6. Collateral relations of the half blood to inherit equally with those of the whole blood- Proviso where a parent shall take, 237. 7. No person to take unless he be born at the death of the person last seized, or within ten months afterwards, 237. 8 In what case the widow shall take as heir, 237. 9' Alien heirs not to prevent other relations, being citizens, from inheriting, 237. 10! Illegitimate children may inherit from their mother and from each other, 237. DEVISEES. See Lands of Deceased Debtors. DEVISE. See IViUs and Testaments. DISTRIBUTIVE SHARE. See Intestate's Estute, Petition. DIVORCE AND ALIMONY. Courts of law and equity to have jurisdiction of divorce and alimony, 238. Cases in which divorce or alimony may be granted, 239. Other cases in which divorce from bed and board, and alimony or separate maintenance, may be granted, 239. Alimony may be granted when the husband is a spendthrift, &c., 239. Proceedings to obtain divorce or alimony, 239. •, , • .u «,„♦„ Cause of complaint must have existed six months, and petitioner must have resided in the State three years — Proviso, 240. Rules as to depositions and costs in such eases, 240. What shall be a bar to a suit for divorce, for the cause of adultery, 240. What decree the court may make on applications for divorce, 241. Innocent party may marry again, 241. No decree to render the children illegitimate, 241. Proceedings against the husband when alimony is allowed, 241. In case of divorce from bed and board, the wife shall have all the property she may thereafter ac quire, and may sue and be sued alone, 241. The superior courts of law may, on petition of a married woman, decreethat the property she may afterwards acquire, may be secured to her, and that she may sue and be sued as a feme sole, 241 Appeal allowed to the supreme court from a judgment or decree in superior court of law, or the court of equity, 242. Party against whom there is a decree of divorce, not permitted to marry again, 242. DOGS. See Mad Dogs, Towns. DOWER. See Widow. . In petitions for dower or partition, the costs are at the discretion of the court, 1 60. In a petition for the sale of land for partition, if there be dower on the land, the court may decree a sale and apportion the dower interest, 452,453. DRAINING LOW LANDS. Mode of proceeding by those desirous of draining their lands, 243. 83 658 INDEX. DRAINING LOW LANDS, (Continued.) Court to appoint twelve jurors — their duty, 243. On payment of damages, title of land to vest, &c., 243. Jury to make a return of their proceedings to court, &c., 243. Pay of such jurors, 243. Yard or curtilage of any proprietor not to be invaded, nor any mill pond injured, 243.. DRUNKENNESS. Penalty for intoxication or disorderly behavior during divine service, 503. Penalty for getting drunk, 608. Offence must be prosecuted in ten days, 60&. DUE BILLS AND CHECKS. Penalty on any person or corporation for issuing due bills, 212. Penalty for passing or receiving due bills, 212. Penalty for passing or receiving a check on any bank for less than one dollar, 213. The issuing, passing or receiving due bills, or the passing or receiving checks on anyhankfora sum less than one dollar, to be indictable, 213. Any person or corporation issuing notes to pass for money, without being authorized by law so to do, how punishable, 2l3. Fines and penalties, how appropriated, 213. DUELLING. Fighting a duel, when one party is killed, punishable with death, 191. Sending, accepting or bearing a challenge to fight a duel, how punishable, 202. DUNKARDS. See Quakers, Moraviana, Menonists and Dunkards. EJECTMENT. Action of ejectment on the death of the defendant may be revived against his heirs or devisees, 56. Court may appoint guardians for infant defendants in ejectment, 56. How service to be made when heir or devisees are out of the State, 57. The real plaintiff in an action of ejectment to give a prosecution bond, 153. Persons desiring to be made defendants in ejectment must give a bail bond, 153. Where plaintiff in ejectment makes affidavit that defendant entered as his tenant, &c. the defendant shall not plead until he gives bond for the costs and damages, 153. What facts in such case the jury are to find, 154. If they find for the plaintiff, they must assess damages for the occupation, &c., 154. Defendant may rebut plaintiflT's affidavit by his own, 154. If plaintiff does not give security, his suit to be dismissed, 154. Defendant to give bail or be in custody before pleading, 154. ELECTIONS. Time and manner of holding elections for electors of president and vice president, 245. Certificate and return, by whom to be made, 245. Penalty in case of failure to make return, 245. Election of electors to be held every four years, 246. When and where the election for members of the General Assembly shall be held, 293. The county courts may alter, establish or discontinue separate places of election, 293. Time and place of holding the elections to be advertised by the sheriff, 293. County courts to appoint inspectors for every separate election precinct, 293. Clerk to furnish the sheriff with a list of the inspectors, and the sheriff to notify them, 293. If the court fail to appoint inspectors, or they refuse to act, the vacancies how to be supplied 294. Sheriff to furnish boxes for receiving the tickets — Tickets how to be received and put into the boxes, 294. Persons qualified to vote, how to give in their tickets, 294. ^ List of voters to be kept, 294. How the boxes are to be opened and the tickets counted out, 294. Manner in which the statement of the polls shall be made up, returned, compared, and the persons declared duly elected, 294. Manner in which the statement of the polls shall be made out in the senatorial districts, 295. Where the polls of the different counties composing the district shall be compared, 295. And how the persons elected shall be so declared, 295. Sheriffs' pay for attending to compare the polls in the senatorial districts, 296. INDEX. 659 ELECTIONS, (Continued.) Persons offering to vote, may be required to swear to their qualifications, of -which the inspectors shall be the sole judges, 296. In case of vacancies occurring before the meeting of the General Assembly, it shall be the duty of the sheriff to notify the governor thereof, 296. Persons elected, and refusing to accept, or resigning, to notify the governor, 296. Governor, in such cases, to order a new election, 297. Elections held under a writ from the governor, or speaker of either house, to be held as other elec- tions, 297. Elections, at what time to be opened and closed, 297. Sheriff to furnish persons elected, if requested, with a copy of the list of votes, 297. Penalty on sheriffs for failing to do their duty in regard to elections, 297. Candidate not elected, to be furnished with a statement of the polls, upon paying two dollars for the same, 297. When no sheriff, the coroner to hold the election, 298. When there is neither sheriff nor coroner, three justices may appoint a freeholder for that purpose, 293. Penalty on persons not qualified, for voting at elections, 298. Musters not to be on the day and at the place of any election, 298. Penalty for bribing an elector to give his vote, 298. Penalty for treating at elections, 293. Sheriff to advertise the two preceding sections against bribing and treating at elections, 299. Penalty on members for giving any gratuity, &c. to secure their election, 299. Sheriffs to make return to the General Assembly, of members elected from their counties to serve therein, 300. How any person contesting the seat of a member shall proceed, 300. Penalty on witnesses for failing to attend and give evidence m contested elections, 300. Pay of witnesses for attending in such cases, 301. Breaking up an election, how punishable, 200. Election for governor, when to be held and how to be conducted, 302. Persons contesting governor's election, how to proceed, 304. Sheriffs to transmit a duplicate return of the vote for governor, &c., 304. Time and manner of conducting the election for members to the house of representatives in congress, 390. Governor may order such elections at other than the regular time in certain cases, 390. Penalty on persons for voting more than once at an election, 390. Separate elections in counties, how to be conducted, 390. Duty of the returning officer in regard to elections, 390. Returning officers of the different counties of the district to meet and compare the polls, and to give a certificate of election to the successful candidate, 391. Provision where there is an equal number of votes for two or more candidates, 391. Governor to commission persons elected representatives, 392. Returning officer's allowance for comparing the polls, 392. How and when elections to be held in case of vacancy, 392. For election of clerks of the county and superior court, see Clerks of the County and Superior Court. For election of sheriffs, see Sheriff. For election of constables, see Constables. ELECTORS OF THE PRESIDENT AND VICE PRESIDENT OF THE UNITED STATES. State divided into fifteen districts for choosing electors to vote for president and vice president of the United States, 244. Time and manner of holding the elections for electors, 245. Certificate and return, by whom to be made, 245. Penalty in case of failure to make return, 245. Election of electors to be held every four years, 246. When and where the electors shall meet to give their votes, 246. The governor shall issue his proclamation for an election in case of a vacancy in both the offices of president and vice president, 246. Penalty on electors for failing to attend, 247. 660 INDEX. ELECTORS OF THE PRESIDENT AND VICE PRESIDENT, (Continued.) Penalty on sheriffs for refusing to lake the poll, or making false returns, &c., 247. Compensation of electors, 247. Compensation of sheriffs for holding elections, &c., 247. Electors may supply vacancies in their body, 247. EMANCIPATION. How slaves may be emancipated, 585. Owner to give bond conditioned for slaves leaving the State, SSSi. Emancipated slaves to leave the State in ninety days, 585. How slaves may be emancipated, when directed so to be done by will, 585. Slaves over fifty years of age may be emancipated for meritorious services, 586. Emancipated slaves, not leaving the State or returning, may be arrested and sold, 586. In such case suit may also be brought upon the bond given by the owner, 586. Grand jury to present slaves offending in this particular, 587. No slave to be set free but according to the above regulations, 587. EMBEZZLEMENT. Servants, embezzling their master's goods, how punishable, 194. Embezzling records, &c., how punishable, 198. ENTRIES AND GRANTS. What lands subject to entry, 249. Swamp lands, not exceeding fifty acres, between lines of tracts heretofore granted, subject to entry, 249. Land in a swamp, not containing more than two thousand'aeres, may be entered, except in certain cases, 249. Appointment of entrj' takers and surveyors, 249. Where there is a vacancy in the office of entry taker, the clerk of the county court may act as such, 249. Oaths and bonds of entry takers and surveyors, 250. Surveyors may appoint deputies, 250. Every citizen may enter lands, 250. Price at which lands may be entered, 250. When entry money to be paid, 250. On failure of paying entry money, a subsequent enterer entitled, 250. In case of lapse, the same person shall not re-enter within twelve months, 251. How entries to be made and warrants to issue, 251. How surveys to be made and returned, 251. Surveys to be according to priority of entry, 251. When the warrant is lost, duplicate may issue, 252. On the death, &c. of entry taker, his successor to issue warrants, 252. How entry takers to make entries for their own use, 252. How surveyors to have surveys made for themselves, 252. Entry takers to make annual returns to the secretary of state, 253. Penalty for failure, how to be recovered, 253. Public treasurer to receive the entry money, 253. When the secretary shall issue grants, 253. How grants to be authenticated, 253. All grants to be registered — Copies may be registered, 253. How the grant to issue on the death of the enterer, 253. When a seal to a grant is lost, it may be renewed, 254, 304. Certain grants heretofore issued to surveyors, &c. confirmed, 254. Certain other grants declared valid, 254. Grants made upon entries extending into two or more counties confirmed, 254. How to correct mistakes made by surveyors or other ofiicers in perfecting title to land upon entries, 254. Cost of correcting such mistakes, by whom to be paid, 255. Rectified copies of grants to be registered in certain cases, 255. Persons aggrieved by the issuing of patents, how to proceed, 255. Proceedings and judgment of the court in such cases, 256. Copy of judgment to be filed in the secretary's oSice, 256. INDEX. 661 ENTRIES AND GRANTS, (Continued.) Whenever the State ■wishes to repeal letters patents or grants, supreme court to have original juris- diction, 256. What decree the court may make, 256. Cases now in the superior court may be removed to the supreme court, 256. Indian reservations not to be entered, 256. Time for paying on certain entries extended, 257. Evidence necessary to support title under H. or H. E. McCuUoch, 262. Grant from the proprietors, or a copy thereof in titles under H. or H. E. McCuUoch, sufficient evi- dence, without producing the grunt to the proprietors, 262. Entries of land subject to taxation, 511. Lands sold for taxes and bid off for the governor, to be deemed vacant laud, and subject to entry, 526. Lands sold for taxes to revert to the State, if the purchaser fails to comply with the terms of sale, and to be deemed vacant, and subject to entry, 527. Secretary of state to take receipts for grants, 563. may send grants by mail, 564. ENTRY TAKER. See Entries and Grants. Appointment of entry takers, 249. Where there is a vacancy, the clerk of the county court to act as entry taker, 249. Entry taker to give bond and take oaths, 250. Form of entry taker's oath, 437. On the death of an entry taker, his successor shall issue warrants, &c., 252. How entry takers to make entries for their own use, 252. Eutry takers to make annual returns to the secretary of state, 253. Penalty for failure, how to be recovered, 253. For a remedy on their bonds, see Official Bonds. Fees of entry takers, 558. EaUITY. See Courts of Equity. EQ,UITY OF REDEMPTION. See Execution. ESCAPE. Sheriff or other officer suffering a criminal to escape, how punishable, 199. Duty of the attorney general and solicitors in such cases, 200. Sheriff periTutting an escape in civil cases to be liable to action of debt, 569. ESTATES. Estates in tail converted into fee simple, 258. In joint tenancy the share of the person dying shall not go to the survivor— Proviso as to partners in trade, 253. Certain contingent limitations in deeds or wills, how construed, 259, 622. In conveyances to uses, the possession shall be transferred to the use without livery of seizin, 259. Grantees of reversions to have the like advantages against the tenants for life or years, as the grantors had, 259. Tenants for life or years to have like advantages against the grantees of reversions, as they had against the grantors, 259. The buying and selling pretended rights or titles prohibited, 260. What warranties shall be void, 260. What leases made by husband and wife shall be good against the lessors, 260. What leases made by husband and wife shall not be good, 250. Tenants for life protected against feigned recoveries, 261. Proviso for recoveries by good title, 261. Certain recoveries by assent good, 261. A termor may falsify for his term, 261. Terms for years protected against recoveries, 261. Persons having lands by execution protected, 261. EVIDENCE. Evidence necessary to support title under Henry McCuUoch or Henry Eustace McCuUoch, 262. Grant from the proprietors, or a copy thereof, in titles under H. McCuUoch or H. E. McCuUoch, sufficient evidence, without producing the grant to the proprietors, 262. What shall be evidence of the law of another state, 263. 662 INDEX. EYIDKNCE, {Continued.) Printed statute book evidence of private acts, 263. Other evidence of private acts, 263. Copies from the secretary's office of plats of survey maybe read as evidence, 263. What shall be evidence of administration and of returns of administrators in other states, 263. Certified copies of wills or deeds from other states to be received as evidence, 263. The printed copies of the revised statutes to be received as evidence, 55. In an action against the drawer or endorser of a bill of exchange, &c., protest of a notary, &c. shall be evidence of a demand, &c., 95. Copy of the account evidence under the book debt law unless notice be given to produce the original, 93. An official, signed by the comptroller, to be received as evidence in the courts of this State, 113. Overseers of roads competent to prove notice to hands, 541. Probates of wills, evidence of the devise of real estate, and copies may be received as originals, 621 . EXECUTIONS. Houses, lands and other hereditaments may be taken in execution, 265. All process of execution to issue against lands and tenements, as well as goods and chattels, though the latter are to be first taken, 265. Shetifi" may deliver goods, and one half of the land of the debtor to the plaintiflF, until the debt or damages be levied, &c., 265. Executions may be levied upon goods, lands, &c. held in trust for the person against whom the executions issued, 266. Purchaser under such execution to hold the property discharged of the trust, 266. The equity of redemption, and the legal right of redemption in lands, liable to execution, 260. Sheriff to set forth in his deed that the land v/as under mortgage, 266. What articles shall be exempt from execution, 266. When justice's execution shall he levied on land and returned to court, what to be done, 266. Where the sale of the land upon the return of a justice's execution, does not satisfy the judgment and costs, the court to grant execution for the balance, 266. How and where sales of lands and slaves under execution shall be made, 267. County court may appoint additional places of public sale, 267. Sheriff or other officer to give notice of the sale of land, &,c. under execution, 267. How and for what length of time advertisement shall be made, 267. At what lime of the day, execution sales shall commence, 267. Penalty on sheriff or other officer for selling contrary 1o this act, 267. Sheriff, &c. returning no sale for want of bidders, how to proceed, 268. Justice's execution to bind personal property only from its levy, 268. Sheriff or other officer may take bond for the forthcoming of property levied on, 268. "" Officer, how to proceed upon such bond when broken, 268. Officer levying a justice's execution on land, to give the defendant five days notice before court, 268. Court to direct a notice when none has been given, 269. County court to settle the charges of officers for keeping horses, &c. taken in execution, 269. Officer to make out his account for keeping horses, &c. and to deliver the debtor a copy thereof, and return the account with the execution, 269. Purchaser under execution, may sue the defendant in the execution, if there be a defect in the title to the thing sold, 269. A party at whose suit any person may be charged in execution, may after the death of such person in execution, have anew execution against the land and goods of the deceased, 270. What execution may be issued against a corporation, 119. Where a defendant to a suit in the county court removes himself or his property, the clerk may issue an execution to any county, &c., 166. No execution to issue on a judgment after a year and a day, without a scire facias to revive the same, 170. Party committed in execution not to be discharged on habeas corpus, 170. Administrator de bonis non may have execution on a judgment obtained by a former administrator, 171. Executions may issue in equity as at law, &c., 181. Justice's execution, how to issue and be returned, 356. Defendant may stay justice's execution by giving security, 356. INDEX. 663 EXECUTIONS, {Continued.) How such security to be given, 356. -- No stay allowed on a former judgment, 356. Justice's execution, when returnable, to whom to issue, and against what property, 357. Execution from a justice against a person removing out of the county, how to be proceeded on, 358. How and in what time a party desirous to stay an execution, but unprovided with sureties, shall ♦ proceed to obtain such stay, 359. \ How a party shall proceed who was unable to attend the trial from sickness, &c., 359. Duty of the justice and constable, upon such stay of execution being allowed, 359. Execution may issue before the stay is granted, 360. Upon security given for the stay, the officer must return the execution to the justice, 360. Sheriifs and coroners to pay costs on execution to the clerks, 428. Clerks of courts may issue execution for fees in certain cases — Bill of costs to be annexed, 556. Execution against the estate of a minor, when and how to issue, 365. EXECUTORS AND ADMINISTRATORS. County courts shall grant letters testamentary and of administration, 272. To whom administration shall be granted, 272. Executors and administrators to take an oath, and administrators to give bond, 272. Form of the condition of the bond, 272. Form of executors and administrators' oaths, 440. Special administration may in certain cases be granted by three justices, 273. , Courts of equity may in certain cases grant special administration, 273. Executors residing out of the State to give bond and security within one year, 274. A man residing out of the State, or about to remove, marrying an executrix, may be compelled to give bond and security, 274. Penalty for administering before letters granted — Proviso for the family's using the crop, &c., 274. Bonds of administrators and executors, how payable, and the remedy on them, 275. Inventory to be returned, 275. When and how an executor or administrator may sell the personal property, 275. The preceding section not to affect powers under a will, 275. W?ien the administration is granted to the highest creditor, the sheriff must sell, 276. Sales, &c. to be at public auction and between eleven and four o'clock — Penalty for selling other- wise — Proviso as to executors, 276. Dignity of debts, 276. Executors and administrators to advertise within two months, 276. How the advertisements may be proved, 276. Executors and administrators to pay over at the end of two years, upon refunding bond being given — Remedy of creditors on such bonds, 277. The refunding bonds and descriptive lists of property to be filed among the records of the county court, 277. When and how the creditors may have a scire facias on such bonds, 277. Estate remaining seven years unclaimed, to be paid over to the trustees of the university, 277. No debt to be discharged by naming a person executor, 278. Estates for life of another, and estates of cestui que trust to be assets, 278. Executors and administrators to have nine months to plead to suits in court, 278. Same privilege in warrants before justices, 278. Warrant before justices to be returned to court when an executor or administrator pleads no assets — Costs in such cases, 278. No lien on the assets created by the commencement of a suit, 278. Heirs or devisees may contest the plea of no assets — Proceedings thereon , 279. Deeds for lands contracted to be sold by the deceased, may be made by his executors or adminis- trators, 279. Commissions to executors and administrators to be allowed by the county courts, 279. Relief for the securities of executors and administrators may be obtained in the county court, 280. Power of the superior court in such cases, 280. .•.;,- Publication may be made in such cases, 280. . ^■ In what cases executors of executors shall have actions, 280. When some executors refuse, those accepting the trust, or if all die or refuse, the administrators with the will annexed, may sell lands according to the will, 281. 664 INDEX. EXECUTORS AND ADMINISTRATORS, (Coniinuerf.) Who shall be chargeable as executor de son tort, 281. Executors or administrators of executors or administrators liable for a devastavit, 281. When right of action shall survive to executors and administrators, and executors of executors, 281. Appeals allowed from an order of the county court granting letters testamentary or of administra- tion, 61. Executors and administrators may prove the book debts of the testator or intestate, 98. Administrator de bonis non may have execution on judgment obtained by a former administrator, 171. In suits upon the bonds of executors, &c. upon motion at the appearance term, a reference may be made to have an account stated, 171. What shall be evidence of administration, and of returns of administrators in other states, 263. Contracts of executors of administrator, to be answerable out of their own estate, must be in writing, &c.,290. Creditors must claim "within seven years from the death of the debtor, or be forever barred, 375. Within what time after the qualification of executors or administrators, creditors must present their claims — Proviso for infants, &c., 375. Proviso when the delay is at the request of the executor or administrator, and provided that the executor, &c. has advertised, 375. ^ Surety paying a debt shall have the same priority as the creditor against executors and admmistra- tors, 593. The administrator to return in his inventory the year's allowance for the widow, but not to be accoun- table for the same as assets, 618- Administrator to pay the cost of the petition for the widow's year's allowance, 618. EXHIBITERS OF CURIOSITIES. See Revenue. FAIRS. County courts may appoint fairs, 282. Commissioners to be appointed, who may regulate the fairs, 282. Inhabitants to have free liberty of the fairs, 282. FALSE JUDGMENT. See Recordari. FALSE LIGHTS. Holding out false lights on the sea coast, how punishable, 204. FALSE TOKENS. Cheating by false tokens, how punishable, 205. FEME COVERT. See Husband and Wife. FENCES. Every planter shall keep a sufficient fence around his cleared ground under cultivation, 283. Damages done by stock when fence is sufficient, how ascertained and recovered, 283. . Injuries done to stock by persons not having a legal fence, how ascertained and recovered, 284. Either party dissatisfied may appeal — Proceedings thereon, 284. Either party may summon witnesses, 284. Penalty on slaves for killing stock contrary to the provisions of the act concerning fences, 284. Master or overseer to pay the damages sustained by slaves killing stock, &c., 284. Persons not keeping lawful fences liable to indictment, 200. FERRIES. See Roads, Ferries and Bridges. FILIAL PORTIONS. See Petition, Intestate's Estate. Children born after the making of their parent's will may petition for a provision, 623. Court to decree a share of the personal estate, and appoint commissioners to allot a share of the real, 623. Commissioners' duty in making the allotment, 624. Legatees to contribute proportionally, 624. What decree the court may make on the return of the commissioners, 624. After a decree the petitioners to be deemed legatees and devisees, 624. If no petition be filed by an after-born child within two years, executors to file a bill or petition of interpleader, 625. Guardian to be appointed by the court for the infant if he have none, 625. Petition to be a lien on the lands devised, 625. FINANCE. See Committee of Finance. FINES AND FORFEITURES. All fines, forfeitures, &c. to be paid to the county trustee, 124. INDEX. 665 PINES AND FORFEITURES, (Continued.) Clerk to render an annual statement of fines, forfeitures, &c., 124. Sheriff shall collect and pay over all fines, forfeitures, &c., 124. Fines, forfeitures, &c. to be paid to trustee of the county where the offence was committed, 125. Judges of the superior courts may mitigate or remit recognizances, both before and after judg- ment, 220. Clerks to refund when the remitted forfeiture has been paid, 220. County trustee to refund when such remitted forfeiture has been paid over to him, 220. County courts may remit fines ; and also forfeitures before judgment, 221. Appeals allowed from judgments on forfeited recognizances, 221. No execution to issue on a forfeited recognizance, &c. until after a scire facias, 221. Clerks to issue a joint scire facias against the principal and his sureties on a recognizance, 221. How such scire facias to be executed, 221. Such scire facias to be entered as one suit against principal and his sureties, 222. One set of costs only to be collected, except when the defendants plead separately, 222. Sheriffs' sureties liable for fines imposed on him, 568. FIRE COMPANIES. Members of fire companies exempt from militia duty, 395. FIRE WOOD. Regulations as to the sale of fire wood in towns, 346. FISH. See Inspections and Inspectors. One fourth of a river or creek, including the deepest part, to be left open for the passage of fish, 535. Penalty for erecting a stand, &c. in the part of the river required to be left open for the passage of fish, 535. Penalty for setting nets across the main channel of any navigable stream, 536. To erect stand, &c. to prevent the passage offish indictable — Proviso as to seines, 536. Slaves offending as to this particular to be whipped, 536. FLAXSEED. See Inspections and Inspectors. FLOUR. See Inspections and Inspectors. FORCIBLE ENTRY AND DETAINER. Forcible entry punishable by indictment, 285. Summary remedy before justices against those who maybe guilty of forcible entry and detainer, 285. Justices to have jurors summoned, 285 . Penalty on the sheriff and others for failing to assist the justices, 286. No restitution to be awarded when the party has been in possession three years, 286. Remedy extended to tenants for term of years, 286. Record to be made of the proceedings, 286. FORFEITURES. See Mnes and Forfeitures. Forfeiture for suicide abolished, 197. FORGERY. Forgery, how punishable, 195. FORNICATION AND ADULTERY. Fornication and adultery, how punishable, 202. Penalty for committing fornication, 609. FORTHCOMING BOND. See E.vecutions. FRAUDS AND FRAUDULENT CONVEYANCES. All conveyances of lands or goods, made to defraud creditors, shall be void, 287. Conveyances made to defraud purchasers shall be void, 288. Penalty on the parties to fraudulent gifts, grants, &c., 288. Conveyances bona fide, upon good consideration, not to be affected, 288. What proceedings may be had, when the property of a debtor is fraudulently conveyed to injure his creditors, 288. Where the party fails to appear, judgment may be entered by default, 269. Mode of proceeding when judgment is given by a justice of the peace, 290. Contracts for the sale of land and slaves must be in writing, 290. Persons removing debtors, to hinder, delay or defraud creditors, to be liable for their debts, 290. Contracts of executors, &c. to be answerable out of their own estate, or to charge any person with the debt, &c. of another, must be in writing, 290. Contracts with the Cherokee Indians must be in writing, subscribed by two witnesses, 290. VOL. I. 84 666 INDEX. FREE PERSONS OF COLOR. See Slaves and Free Persons of Color. FUGITIVES FROM JUSTICE. Governor, may employ an agent or offer a reward for the apprehension of fugitives from this State charged with capital oifences, 215. Judges or any two justices may commit fugitives from other states charged with certain criminal offences, 216. GAMING CONTRACTS. Promises, &c. to pay money upon any kind of gaming, or lent for the purpose of gaming, void, 291. Securities in such cases, void, 291. GAMING. Gaming tables prohibited, 206. Money staked for betting may be seized, 207. Penalty for opposing the destruction of the tables or the seizure of the money, 207. for suffering gaming tables in one's house — Sheriff to sue for the penalty, 207. To keep up gaming tables, or to play at them, indictable, 208. Persons playing cards in a public house, indictable, 208- Tavern keepers and retailers of spirituous liquors, indictable for suffering gaming in their houses, 208. GATES. Tax on gates ,511,547. County courts may authorize the erection of gates across public roads, 547. How a person desirous of erecting a gate across a public road, shall proceed to obtain an order for that purpose, 547. Appeal allowed from such order, 547. GENERAL ASSEMBLY. When and where the election for members of the General Assembly shall be held, 293. The county courts may alter, establish or discontinue separate places of election, 293. Time and place of holding elections to be advertised by the sheriff, 293. County courts to appoint inspectors for every election precinct, 293. Clerk to furnish the sheriff with a list of the inspectors, and the sheriff to notify them, 293. If the court fail to appoint inspectors, or they refuse to act, the vacancies how to be supplied, 294. Sheriff to furnish boxes for receiving the tickets — Tickets, how to be received and put into the boxes, 294. Persons qualified to vote, how to give in their tickets, 294. List of voters to be kept, 294. How the boxes are to be opened and the tickets counted out, 294. Manner in which the statement of the polls shall be made up. returned, compared, and the persons declared duly elected, 294. Manner in which the statement of the polls shall be made out in the senatorial districts, 295- Where the polls of the different counties composing the districts shall be compared — And how the persons elected shall be so declared, 295. Sheriffs pay for attending to compare the polls in the senatorial districts, 296. Persons offering to vote, may be required to swear to their qualification, of which the inspectors shall be the sole judges, 296. In case of vacancies occurring before the meeting of the General Assembly, it shall be the duty of the sheriff to notify the governor thereof, 296. Persons elected and refusing to accept, or resigning, to notify the governor, 296. Governor in such cases to order a new election, 297. Elections held under a writ from the governor, or speaker of either house, to be held as other elec- tions, 297. Elections, at what time to be opened and closed, 297. Sheriff to furnish persons elected, if requested, with a copy of the list of votes, 297. Penalty on sheriffs for failing to do their duty in regard to elections, 297. Candidate not elected, to be furnished with a statement of the polls, upon paying two dollars for the same, 297. When there is no sheriff, the coroner shall hold the election, 298. When there is neither sheriff nor coroner, three justices may appoint a freeholder for that pur- pose, 293. Penalty on persons not qualified, for voting at elections, 298. INDEX. 667 GENERAL ASSEMBLY, (Continued.) Musters not to be od the day and at the place of any election, 29S. Penalty for bribing an elector to give his vote, 298. for treating at elections, 298. Sheriff to advertise the law against bribing and treating at elections, 299. Time of the meeting of the General Assembly, 299. Governor and council may convene the General Assembly at other than its usual meetings, 299. Members of the General Assembly to take oaths to support the constitutions of this State and of the United States, 299. Penalty on members for giving any gratuity, &c. to secure their election, 299. Persons elected shall attend at the meeting of the General Assembly, 299. Penalty on persons elected, for failing to perform the duties of their appointment, 299. Members to have freedom of speech, and to be protected from arrest, &c., 300. Sheriffs to make return to the General Assembly of members elected from their counties to serve therein, 300. How any person contesting the seat of a member shall proceed, 300. Penalty on witnesses for failing to attend and give evidence in contested electionSj 300. Pay of witnesses for attending in such cases, 301. Persons desirous of procuring the passEige of a private law, how to proceed, 301. Acts of the General Assembly, when to be in force, 301. The journals of the two houses to be deposited in the office of the secretary of state, who shall certify copies thereof when required, 301. Pay of the members of the General Assembly, §50. Pay of the clerks and other ofl&cers of the General Assembly, 550. How the pay of the members and officers of the General Assembly shall be ascertained and paid, 550. No member of the General Assembly shall be compelled to act as sheriff, 568. GIFTS. Gifts of slaves must be in writing, attested and registered, 230. Proviso as to advancements to children, 230. Deeds of gift to be proved and registered, 230. GOVERNOR AND COUNCIL. Election of governor, when to be held and how conducted, 302. Governor to reside at Raleigh, 302. A house to be provided for him, 302. Governor shall appoint a private secretary, who shall enter letters, &c. in a letter book, 303. Letter book to be kept in the executive office, 303. Meetings of the council of state shall be in Raleigh, 303. Governor and council may convene the General Assembly, if necessary, 303. Governor to procure a seal for the State, 303. Also one for each court of record, 303. He may procure new seals when necessary, 303. How the seals are to be prepared, 303. Expense of seals, how paid, 303. Seals to be delivered to the proper officers, who are to receipt for the same, 303. When a seal to a grant, &c. is lost or destroyed, how such instraments may be resealed, 254, 304. Compensation of sheriffs, for making returns of the governor's election, 304. How such compensation to be ascertained and paid, 304. Person intending to contest the election of governor, to give notice, &c. — Proceedings thereon, 304. Sheriffs to transmit a duplicate return of the vote, &c., 304. Penalty on persons not qualified for voting for governor, 305. Returns of the governor's election, by whom and when to be opened, 305. How the election to be determined, 305. Depositions may be taken in contested elections, 305. Governor may appoint commissioners in other states or territories to take and certify affidavits, 109. Governor to notify clerks of courts of records in this State of such appointments, 110. Governor may appoint four aids de camp, 398. 668 INDEX. GOVERNOR AND COUNCIL, (Continued.) Form of the governor's oath of office, 433. Salary of the governor, what and when to be paid, 548, 549. Governor may have blanks, &c. printed for the use of his ofiSce, at the expense of the State, 491. Salary and fees of the governor's private secretary, 549 — 551. Pay of the councillors of state, 550. Pay of the clerk and doorkeeper of the council, 550. No member of the council of state shall be compelled to act us sheriff, 568. Governor may remit any fine or penalty incurred by general or field officers of the militia, 409. Governor and council to appoint a treasurer when he fails to give bond during the recess of the legislature, 601. GRAND JURY. At each court grand jury shall visit the jail, 133. Grand jury, how drawn, 149. to present all orphans without guardians, and all abuses of guardians, 312. Form of the oaths to be taken by the foreman and other grand jurors, 439. GRANTS. See Entries and Grants. GROWING CORN. Stealing growing corn, &c. larceny, 1 96. GUARDIAN AND WARD. A father may, by deed or will, appoint a guardian for his children, 306. The superior and county courts to have cognizance of all matters relating to orphans and their estates — To appoint guardians and take bonds, 307. Justices liable for taking insufficient security — Proviso, 307. Guardians' bonds, how payable, and the remedy upon them, 307. Clerks to enter upon their docket the names of the justices on the bench when guardiein bonds are taken — Proviso for a justice present, but not concurring, 307. Guardians may be appointed to take charge of children whose fathers are alive, 308. \-^ One bond only to be taken from the guardian of orphans who have property in common, 303. Guardian bonds to be renewed once in every three years — Clerk to issue summons to guardians fail- V ing to renew, 308. Duty of the clerks of the superior courts as to guardians appointed by such courts, and failing to settle their accounts and renew their bonds, 308. Clerks of the county courts to issue notices to such guardians, 309. Duty of guardians in taking possession of the estate of their wards, 309. Guardians to render an account of the estate of their wards upon oath, 309. Orphan's court to be held— All guardians to render their accounts annually, 309. y^ Clerks to issue ex officio summons to guardians failing to render their accounts, 309. Clerk's fee for issuing summon to guardians, and how collected, 309. Guardians, by order of the court, to sell the perishable estate of their wards — To lend out the money of their wards upon bond or note, and to account for the interest annually, 310. Bonds taken by guardians to bear compound interest — May be assigned to wards upon their coming of age, 310. In what cases slaves and stock to kept on ward's lands — Proviso, where stock becomes too numer- ous, 310. In what cases ward's land and slaves to be rented and hired out — How the land to be rented, 311. Sales, &c. of ward's estate, how to be made, 311. Penalty upon a guardian for suffering his ward's land to lapse or become forfeited by the non-pay- ment of taxes or other dues, 311. Power and duty of the courts, where guardians mismanage their wards' estate, or when they and their sureties are likely to become insolvent, 311. Grand jury to present all orphans without guardians, and all abuses of guardians, 312. Remedy for sureties of guardians when such sureties are likely to suffer, 312. against guardians by petition, as well as on their bonds, 312. Guardians to be allowed disbursements and expenses, and also commissions, 312. of orphans removing to, or residing in other states, how to obtain the personal estate of their wards in this State out of the hands of their guardian in this State, 312. How to proceed when there is no guardian in this State, 313. Power of the court of equity, in relation to orphans and their estates, not to be abridged, 313. INDEX. 669 GUARDIAN AND WARD, (Continued.) A court of equity may direct a sale of the real or personal estate of infants, if such sale would pro ■ mote the interests of the infants, 313. Manner in which such sale shall be made, and how the proceeds to be applied and secured, 314. In suits upon bonds of guardians, upon motion at the appearance term, a reference may be made to have an account stated, 171. County courts to appoint guardians to idiots and lunatics, 319. Sureties to guardian bonds to be discharged after three years from the time the orphan comes of age, 374. How a guardian shall proceed when he has notice of a debt or demand against his ward, 365. HABEAS CORPUS. '' How a writ of habeas corpus may be obtained in vacation, 315. Duty of the officer or other person to whom the writ is directed, 315. Duty of the judge, on the return of the writ, 315. Application for the writ must be made within two terms after imprisonment, 316. When the superior court is sitting, the writ must be returned in open court, 316. Penalty on a judge for refusing a writ of habeas corpus, 316. Penalty on the officer to whom such writ is directed, for refusing or neglecting to obey it, 316. Penalty for again imprisoning a person released on a writ of habeas corpus, 316. When persons committed for treason or felony shall be entitled to a trial or discharge, 316. Same remedy by habeas corpus shall be had by persons imprisoned for other causes than criminal charges, 317. Party committed in execution not to be discharged on habeas corpus, 170. HARBORING. Penalty for harboring orphan children without having them bound out, 69. Harboring or concealing a felon, &c., how punishable, 204- Persons harboring runaway slaves, subject to a penalty and to be also indictable, 209. HEADING. See Inspections and Inspectors, HEALTH. See Cluaranline and Health. HEIRS. See Descents, Lands of Deceased Debtors. HOGS. See Cattle, Horses and Hogs. HOG'S LARD. See Inspections and Inspectors, HORSES. See Cattle, Horses and Hogs. HORSE STEALING. Horse stealing, how punishable, 194. HOUSE BREAKING. Felony, punishable with death, to break open houses in the day time, and steal therefrom to the amount of two dollars and upwards, 192. HUNTING. Not lawful to kill any wild deer between the twentieth of February and the fifteenth of August, 317. Not lawful to hunt on the land of another after advertisement posted up forbidding it— Time within which to sue, 318. Hunting in the woods with a gun by firelight indictable, 211. Persons sending their slaves into the woods so to hunt, how punishable, 212. An accomplice in fire hunting, giving evidence against his fellow, to be discharged, 212. HUSBAND AND WIFE. See Marriage, Divorce and Alimony. Suit not to abate by the marriage of ayeme sole plaintiflTor defendant, 56. Husband, made party plaintiff, to give new security for the costs, 56. y- How deeds executed by husband and wife, shall be proved or acknowledged and registered— Wife to be privately examined, 227. Provision when the wife is sick or a resident of another county, 227. Form of the commission to take the private examination of a feme covert, 227. Conveyance under a power of attorney from husband and wife, valid to pass lands, 223. How deeds and powers of attorney from husband and wife, living out of this State, but in the United States, may be proved and registered, 228. How when husband and w.ife reside in foreign parts, 229. 670 INDEX. HUSBAND AND WIFE, {Continued.) What leases made by husband and wife shall be good against the lessors, 260. What leases made by husband and wife shall not be good, 260. IDIOTS AND LUNATICS. County courts to appoint guardians to idiots and lunatics, 319. How idiocy or lunacy to be ascertained, 319. When county courts may order a sale of the real estate of idiots or lunatics, 319. For what purpose, and in what manner, the court of equity may order a sale of the real estate of an idiot or lunatic — Provisos, 319. Court of equity may order a sale, where the idiot or lunatic's land is wanted for public purposes — Proviso, 320. ILLEGITIMATE CHILDREN. See Bastardy and Bastard Children. INDICTMENT. See Criminal Proceedings. INFANTS. ■ Infants may sue by their next friend, 168. Infant trustees, how to convey, 234. A court of equity may direct a sale of the real estate of infants, if such sale would promote the in- terest of the infants, 313. Manner in which such sale shall be made, and how the proceeds shall be applied and secured, 314. What disposition to be made of the property of an infant female when she has been married contrary to law, 387. The trustees of such infant female's property to give bond, 387. Court's power over them, 388. How to obtain a license to marry when the parents or guardian of an infant female reside out of the State, 388. Penalty on the clerks for issuing such license contrary to law, 338. No person under eighteen years of age can make a will of chattels, 623. IN FORMA PAUPERIS. Poor persons may sue in _ for ma pauperis, 153. INFORMATION. See Corporations, Quo Warranto and Mandamus. INJUNCTIONS. Court of equity may grant injunctions, l&l . No injunction to stay an execution shall issue for a greater sum than plaintiff swears to be just, nor until after security given, 182. No injunction to issue after four months from the judgment at law except in certain cases, 182. Injunction bonds, after dissolution of the injunction, to be proceeded on like appeal bonds, 182. In what cases injunctions to stay executions on behalf of the State will be allowed, 183. maUEST. See Coroner. County to pay the costs of inquests, 126. INSOLVENT DEBTORS. The person of a debtor shall not be continued in prison, after delivering up bonajide aU his efiects, 17. Debtors remaining in close prison twenty days, may prefer a petition to two justices, or to the county court, or to a judge of the superior or supreme court in or out of court, and upon notify- ing their creditors, may take oath, &c., 321. Such debtors to be forever discharged of executions against the body for the debts sued for and costs, 322. Proceedings, when out of court, to be put into writing, returned to court, and recorded, 322. Justices may discharge debtors when committed by process from the court of another county, 322. Debtors remaining in close prison twenty days, may file a schedule — Proceedings thereupon, 322. Oath to be taken by a debtor filing a schedule, 323. Debtors filing a schedule and taking the oath, to be discharged, 323. Jailers to furnish debtors with food when required, and if the debtor is unable to pay, may demand his fees for the same of the creditor, 324. Jailers, after twenty days, may notify creditors and demand security for their fees, 324. Debtors taken upon a ca. sa. or in custody by surrender of bail after judgment^ for debts contracted since the first of May, 1823, how to procure their discharge, 324. To give bonds with security for their appearance at court — Proceedings thereupon, 324. INDEX. 671 INSOLVENT DEBTORS, {Continued.) Debtor tendering bonds to be discharged, 325. Surety may surrender his principal, 325. Debtor, having given ten days notice, shall, upon motion, be permitted to take the oath for the re- lief, &c., 325. If creditor suggests fraud, issue to be made up — Debtor may be examined upon oath, 325. Appeal allowed on the trial of such issue, 326. When the jury find fraud, the debtor to be imprisoned, until he makes a full and fair disclosure, 326. Upon making such disclosure, he may take the oath, 326. Debtor to file schedule with the clerk ten days previous to the sitting of the court, 326- When creditor resides out of the State, to whom and how the debtor may give notice, 326. Property, debts, &c. contained ia any schedule, to vest in the sheriflTof the county where such sche- dule may be filed, 327. Court to appoint commissioners to divide the debtor's effects among his creditors, 327. Debtor, after his discharge, not to be arrested again, but an execution may issue against his property afterwards acquired, 327. Debtor swearing falsely,guilty of perjury, 328. No female to be imprisoned for debt, 328. Debtor having taken the benefit of prison bounds, may take the benefit of the act, &c. without going into close prison, 328. Any creditor notified may suggest fraud, and any other creditor may make himself a party to the issue, 328- Any one or more of the creditors may appeal without the others, 328. After issue made up, debtor shall not discharge himself, but by trial or consent, 828. Prison bounds for the benefit of prisoners to be laid out by the county court, 480. Bonds taken from debtors for keeping the prison bounds, how to be proceeded on, 480. INSPECTIONS AND INSPECTORS. Former places of landing and inspection continued, and the county courts may appoint others, 330. County courts to appoint inspectors, 330. Inspectors to give bonds— Remedy on the bonds, 330, 331. Inspectors to attend at the times and places appointed, 331. No exporting merchant to be an inspector, 331. Not more than six inspectors to be appointed in any town, 331 . No inspector allowed to appoint a deputy — Proviso in favor of flour inspectors, 332. Inspectors to hold their oSices during good behavior — Pionso as to Wilmington, 332. How inspectors shall be removed for misbehavior, 332. How vacancies in the office of inspectors to be filled when the county court is not in session, 332. Penalty for acting as inspector before qualification, 333 Form of inspectors' oaths, 437, 438. Duty of inspectors of tobacco, 333. Inspectors to give a manifest of each hogshead, 333. Owners of condemned tobacco to have it reinspected after a certain time, 333. No tobacco to be exported without inspection, 334. Penalty for falsely branding a hogshead of tobacco, 334. Punishment for forging &c. a stamp, note or receipt for tobacco, 334. Manner of proceeding where a tobacco note is lost, 334. How a person demanding his tobacco, alleged to have been injured since inspection, shall proceed, 334. County court may appoint turners up and coopers of tobacco, 335. Any person may turn up, &c. his own tobacco, 335. County courts to appoint pickers of tobacco, 335. Form of tobacco picker's oath, 437. No tobacco inspector to buy tobacco, 336. County courts may build or rent warehouses, &c., 336. When a tobacco warehouse is burned, the inspector shall not be liable on his notes, &c., 336. County courts to regulate warehouse rent, &c., 336. How warehouses may be rej)aired or rebuilt, 336. Private warehouses to have the same rules as to rent, &c., 336. 672 INDEX. INSPECTIONS AND INSPECTORS, (Continued.) No inspector of flour shall sell or trade in flour, or buy except for his own use, 337 , Degrees of flour, 337. What flour shall pass inspection, 337. Penalty on miller, manufacturer or seller of flour for not complying with the provisions of the in- spection law, 337. Inspectors may, in certain cases, unpack the barrels of flour, 338. Persons selling barrels of flour not containing the requisite quantity, to be liable for the deficiency, 333. How casks of flour to he inspected, 338. Casks to be branded, and the quality of the flour marked, &c., 338. Owner of flour, dissatisfied with the inspection, how to obtain a re-examination, 339. Penalty for exporting flour not passed by inspector, 339. Penalty on master, &c. for receiving on board his ship uninspected flour — Proviso, 339. Cask of flour once inspected, not liable to be reinspected in sixty days, 339. Cask not to condemned for short measure, in certeiin cases, if it contains one hundred and ninetysix pounds, 339. Penalty for packing flour in a branded cask, 340. for altering inspector's brand, &c., 340. on inspectors of flour for neglect of duty, 340. Flour maybe sold in the town of Fayetteville without inspection, 340. Duty of inspectors of beef, pork, rice, flaxseed, fish, tar, pitch and turpentine — and penalties for misconduct, 340. How beef and pork shall be inspected, 341 . Hog's lard to be inspected, 341. Rice, how inspected, 341. Fish, how inspected, 341. Pitch and turpentine, how inspected, 342. Tar, how inspected, 342. Inspectors to make a difl"erence between hard and soft turpentine, dippings and scrapings, 342. Makers of tar, pitch and turpentine to brand their barrels with the ioitials of their names, 342. Inspectors to keep a book for entering the makers' names, &c., 342. Beef, pork, rice, fish, flour or butter to be reinspected if not exported in sixty days — Tar, pitch and turpentine in twenty days, 343. No cooper, &c. to make barrels for sale, but according to the directions of the inspection law, 343. Seller or exporter of beef, &c. to produce the inspector's certificate, &c., 343. Penalty on masters of vessels for receiving on board any such articles uninspected, 343. Staves, heading and shingles, how inspected, 344. Lumber, how inspected, 344. Saw mill lumber on the Cape Fear, how inspected, 344. Steam mill lumber, how inspected, 345. Inspectors' fees, by whom to be paid, 345. Staves, lieading, shingles, boards, plank and scantling to be culled, 345. Purchaser of staves or heading on the Cape Fear, to pay one half price for the refuse, 345. No inspector shall purchase cuUings, &c., 345. Penalty for any but a legal inspector of staves, &c. acting as such, 345. How fines and forfeitures under the inspection law, to be recovered and applied, 345. Disputes about extra cooperage in the town of Wilmington, how to be determined, 345. Regulations as to the sale of fire wood in towns, 346. Penalty on inspectors for taking greater fees than the law allows, 346. Fees of inspectors, 559. Fees of tobacco pickers, 560- INTEREST. See Usury. Interest on bills, bonds, notes, liquidated accounts. &c. when to accrue, 94. Bills of exchange, from what time to bear interest, 94. Contracts for the delivery of specific articles to bear interest, 94. In actions for money due by contract, except penal bonds, the jury must distinguish between princi- pal and interest, and the judgment for the principal shall carry interest, 166. In an action on a single bill, &,c. if defendant makes no defence, clerk may calculate interest without a writ of inquirj'^, 167. INDEX. 673 INTEREST, {Coniirmed.) Guardians to account with their wards for compound interest, and the bonds which they take for ward's money shall also bear compound interest, 310. INTERNAL IMPROVEMENTS. Fund for internal improvements established, 346. Of what it shall consist, 347. Board of internal improvement incorporated, 347. may appoint a secretary, 347. Power of the board to make rules, tfec, 347. Their duty in making contracts, 347. Their power in subscribing to public works, 347. Fund to be deposited in the treasury, and to be drawn for by the board, 348. The board to keep a record of their proceedings, and report to the General Assembly, 348. The State to be a stockholder in any company to the amount she may advance, 348. The surplus revenue received from the United States appropriated in part to the fund for internal improvement, 349. Who to constitute tlie board of internal improvements, 349. Meetings of the board— Compensation of the members, 350. Public treasurer to keep the accounts — May employ a clerk for that purpose, 350. Moneys belonging to the fund to be deposited in the banks, 350- State, upon certain events, to subscribe to certain rail road companies, 350. Payments upon such subscriptions, how to be made, 350. Board to lend out the money until such subscriptions are wanted, 351 . In what event the State shall be released from its obligations to subscribe, 351. Surplus revenue of the United States only pledged for such subscriptions, 351. Governor to cause a publication of the payment of any subscription, 351. Profits of the State's subscription to be added to the literary fund, 351. One hundred thousand dollars from the internal improvement fund to be appropriated to the contin- gent expenses of the State government, 352. The act in aid of internal improvements to be in force from its ratification, 352. Accounts of the literary and internal improvement funds to pass through comptroller's office, 603. INTESTATE'S ESTATE. Intestate's estate, how to be distributed, 368, 615. Children advanced, but not to full amount, to have their shares made equal, 368. Representation not to be admitted amongst collaterals beyond brothers' and sisters' children, 368. Children advanced to account for the same, 369. Child refusing to account, not entitled, 369. Illegitimate children entitled to a share of their mother's personal property, 369. When an illegitimate child dies without issue, how his personal property shall be distributed, 369. Distributive shares of intestates' estates, &c. recoverable by petition in the county or superior court, 369. Rules and methods to be observed on such petitions, 369, 370. Power of the court of equity, as to orphans and their estates, not to be affected, 370. Provision for widows of intestates dying and leaving no kindred that are known, 616. Widow to give bond to refund in case any of the next of kin should appear, 616. IRON WORKS. Sea Mines. JAILS AND JAILERS. See Court Homes, Prisons and Stocks, Prisoners. No person to be imprisoned but in the common jail, 215. Sheriff to have the custody of the jail, 569. As to the duty of the jailor in regard to runaways, see Runaicays. Fees of jailers, 559. JEWELLERS. See Revenue. JOINT OBLIGATIONS. On joint obligations, &c. of copartners and others, action may be brought against all or any one or more, 165. Joint obligation shall survive against heirs, executors, &c. of deceased obligors, 166. How the judgment is to be entered when the suit is against the executor, &c. of the deceased obli- gor and the survivor, 166. VOL. I. 85 674 INDEX. JOINT TENANCY. In joint tenancy the share of the person dying shall not go to the survivor, 253- Proviso as to partners in trade, 258- JUDGES. See Courts, County and Superior, Courts of Equity, Court, Supreme. Judges to be appointed by the General Assembly and commissioned by the governor and hold their offices during good behavior, 13, 21. May be impeached, 23. May be removed from office for mental or physical inability, 23. Salaries not to be diminished during their continuance in office, 23. Judges to take oaths, 146, 185. Oaths taken by superior court judges, to be subscribed and returned to the secretary of state, 146. Superior court judges to allot the circuit among themselves, and publish the same, 146- may eichange circuits, 147. How a superior court judge shall deliver his charge to the jury, 174. Judges of the supreme court to appoint a chief justice, 185. to prescribe rules of practice for the superior courts, 186. Salaries of the judges of the supreme court, what and when to be paid, 548, 549. of the superior courts, 549. JUDGMENT BONDS. Judgment bonds void as to power to enter judgment, but good as common Jaw or penal bonds. 166. JUDGMENTS. In actions for money due by contract, except penal bonds, the jury must distinguish between prin- cipal and interest ; and the judgment for principal shall carry interest, 166. In an action on a single bill, &c. if defendant makes no defence, clerk may calculate interest, to be included in the judgment, as damages, without a writ of inquiry, 167. Judgment of a court to stand till reversed, 169. No execution to issue on a judgment after a year and a day without a scire Judas to revive the same, 170. The death of either party between verdict and judgment not to be assigned for error, if judgment be entered within two terms after verdict, 171. Actions on justices' judgments must be brought within seven years, 374. Time within which presumption of payments on judgments, contracts, &c. may arise, 375. JURORS AND JURY. See Grand Jury. Ancient mode of trial by jury to remain sacred, 8. County courts may lay taxes for the payment of jurors, 127. to form a jury list from the list of taxables, taking none but persons well qualified, 147. Jury list to continue and be examined every two years, 147. Number of jurors to be drawn for the superior courts, and how to be drawn, 147. Number to be drawn for the county courts, and how to be drawn, 148. On failure of the county courts to draw jurors, the sheriif and clerk assisted by three justices may draw them, 148. County courts may dispense with a jury at two of their terms, 148. Persons having suits in court not to be drawn nor justices for the county courts, 148. Jurors how to be summoned— Shall attend till discharged by court, 148. Tales jurors maybe summoned when necessary, 149. Penalty on jurors for not attending when summoned— Shall have till the succeeding term to make excuse, 149. Penalty on tales jurors for not attending, 149. Jurors exempt from service of civil process, 149. Ministers of the gospel and regular physicians exempt from serving as jurors, 149. Registers shall be exempt from serving on jurie?, 502. Quakers competent to serve as jurors in criminal cases, 149. How the petit jurors shall be sworn in civil cases — How in State cases not capital, 150. Proviso that the usual challenges shall not be affected, 150. Names of the jurors tn he called over in the hearing of the parties before empanelling them, when each party may challenge four peremptorily, 150. Constable to he sworn to attend juries, 150. Punishment of jurors for taking bribes, und of those who bribe them, 199. In capital cases the judge may issue a special venire facias, 218. INDEX. 675 JURORS AND JURY, (Continued.) Penalty on the sheriff for not executing it and the jurors for not attending, 218. In capital cases defendant may challenge thirtyfive jurors, and in other cases four, and to have the assistance of counsel in challenging, &c., 218. In capital cases the State's counsel may challenge four jurors peremptorily, 218. Peremptory challenges beyond the number allowed bylaw, void, 219. How the petit jurors shall be sworn in cases not capital, 220. Forms of oaths to be taken by juries in certain cases, 439. Keepers of public mills to be exempt from serving on juries, 424. JUSTICES OF THE PEACE. Within what time a person, appointed a justice, must take the necessary oaths for qualifying him- self, 353. Penalty for acting without qualifying, 353. Form of justices' oath of office, 434. No justice, who is a candidate for the office of sheriff, &c. shall vote or sit on the bench at the elec- tion—Penalty for so doing, 353. A justice, removing and remaining out of the county twelve months, to lose his office, 353. Power of justices in their counties, 354. Justices not to practise as attorneys in the county courts of their own county, nor to act as clerk, sheriff, &c., 82, 354. Accepting such appointments to vacate his office, and he shall not act as justice without a reappoint- ment, 354. Justices' jurisdiction in civil matters, 354. Warrants from a justice, to whom to be issued and when returnable, 354. Officer to take bail when required, 354. A defendant arrested and refusing to give bail, to be committed, 355. Where warrants to be tried, and duty of the officer in relation thereto, 355. Regulations respecting bail — How they are to be proceeded against, 355. Bail may arrest principal in order to surrender him, 355. Justice's execution, how to issue and be returned, 356. Defendant may stay execution by giving security, 356. How such security to be given, 356. No stay allowed on a former judgment, 356. Justice may, upon sufficient cause shown, postpone or continue a trial, 356. Depositions of witnesses, when allowed to be read on a trial, 356. When a judgment is obtained in the absence of a party, within what time and how a new trial may be obtained, 357. Justice's execution, when returnable, to whom to issue, and against what property, 357. Justice to direct witnesses to be summoned, which shall be done by the officer, &c., 358. Penalty on witnesses for not attending, 358. Execution against a person removing out of the county, how to be proceeded on, 358. How a judgment of a justice may be removed from one county to another, 358. A justice may accept an appointment under the United States, 358. Justice's process not to abate for want of form, 358. Either party may appeal from a justice's judgment, 358. How security for appeals to be given and proceeded against, 359. Justice to return appeals to court on or before the second day of the term, and to summon witnesses, 359. How and in what time a party, desirous to appeal or stay execution, but is unprovided with his sureties, shall proceed to obtain such appeal or stay of execution, 359. How a party shall proceed who was unable to attend the trial from sickness or other sufficient cause, 359. Duty of the justice and constable, upon such appeal being granted or stay allowed, 359. Execution may issue before the stay or appeal is granted, 360. Upon security given for the stay or appeal, the officer must return the execution to the justice, 360. Justices may restrain rioters and disturbers of the peace, 360. Duty of two justices, with the sheriff, in suppressing unlawful assemblages, riots, &c., 360. The justices dwelling nearest to perform this duty, 360. 676 INDEX. JUSTICES OF THE PEACE, {Continued.) All magistrates to act in suppressing riots, &c., 360. Constables to serve notices in all cases where they may be required in proceedings before justices, 360. How such notices to be served and returned, 361. Penalty on constables for failing to serve notices, 361. Notice may be given and proved as heretofore, 361. A justice may, in certain cases, appoint a special constable to execute a precept, 116. Three justices may, in certain cases, appoint a coroner, 117. Executors and administrators to have nine months to plead in warrants before justices, 278. Warrant to be returned to court when executor or administrator pleads no assets, &c., 278. Costs in such same as costs in appeals, 278. Seven justices may call out the militia in case of invasion or insurrection, 417, 418. Three justices may order out the militia to suppress outlawed or runaway slaves, 418. In judgments before a justice, the surety may dissent from the stay of execution, and then shall not be liable to the surety for the stay, 598. Officer, how to collect in such cases, 598. For justice's power and duty in examining and committing criminals, see Criminal Proceeding's. For the duties of justices in taking and returning tax lists, &c., see Revenue. LANDS. See Revenue, Draining Low Lands, EntHes and Grants, Executions. Contracts for the sale of land must be in writing, &c., 290. LANDS OF DECEASED DEBTORS. In suits against an executor or administrator, upon the plea of fully administered being verified , how the plaintiff shall proceed to subject the real estate in the hands of the heirs or devisees, 362. Heirs and devisees may-contest the finding of fully administered, in a collateral issue with the executor or administrator, 363. Such collateral issue to be tried at or before the second term, 363. When an executor, &c. fails to plead fully administered, &c., or the plea is found against him, and he becomes insolvent, how the plaintiff shall proceed to subject the real estate — Proviso in cases of collusion, 363. Heirs or devisees may show that the executor, &c. has assets, or is not insolvent, 364. Creditor's title to relief in equity not affected, 364. The creditor, on the trial of the scire facias against the heirs, &c. shall recover the costs of the original suit, 364. Where an estate is indebted to the executor or administrator, how he shall proceed to subject the real estate when there is no personal estate, 364. The scire facias, &c. how to be served when the heirs or devisees are minors, 364. When the heirs or devisees, or any of them, live out of the State, and have no guardian here, what proceedings shall be had, 365. How a guardian shall proceed when he has notice of a debt or demand against his ward, 365. Execution against the estate of a minor, when and how to issue, 365. What proceedings shall be had to subject the real estate of a deceased debtor in the hands of the trustees of the university, 365. The president and trustees of the university, liable in like manner as heirs and devisees, 366. Lands held for the life of another, and coming to the heirs by special occupancy, liable for the debts of tenant for life, 366, 625. Lands of deceased debtors, how long liable for the payment of their debts, and within what time a conveyance by the heirs or devisees shall be void, as against creditors, 366. Proviso as to dower, and also as to lands devised in trust to pay debts, 366. Heirs or devisees selling after two years, to be answerable to the amount of the land descended or devised, 367. Devisees of real estate void as to creditors, 367. Creditors may have joiat or several actions against the heirs and devisees, 367. LARCENY. Additional punishment of grand larceny, 195. Larceny to steal bank notes, 195. Stealing growing corn, &c. larceny, 196. Embezzling or stealing wrecked property to be larceny, 629. INDEX. 677 LAW. What part of the common law shall be in force in this State. 110. What shall be evidence of the laws of another state, 263. The printed copies of the revised statutes shall be received as evidence of the statute law of this State, 55. Printed statute book evidence of private acts, 263. Martin's collection of private statutes to be evidence, 263. Persons desirous of procuring- the passage of a private law, how to proceed, 301. Acts of the General Assembly, when to be in force, 301. LEAP YEAR. The increasing day in leap year, with the day before, to be accounted as one day in all legal proceed- ings, 170. LEASES. See Husband and Wife, Recoveries, Mines. LEGACY. See Petition. LEGITIMATION. See Bastardy aud Bastard Children. LIBEL. In an indictment for a libel, the defendant may give the truth in evidence, 217. LIBRARIAN. See Secretary of State. LITERARY FUND. Of what materials the literary fund is to consist, 378. The fund vested in a corporation, and who shall compose that corporation, 378, 380. The board may vest the fund in any of the banks of the State, &c., 379. The fund to be applied to the instruction of such children as the legislature may deem expedient, 379. Board of literature to be established— Its style, 380. Governor to be president of the board, and to appoint the other members, 380. Swamp lands vested in said board, 380. < Other property and funds vested in said corporation, 380. Duty of the board in having the swamp lands surveyed, drained, &c., 380. Written consent of individuals to be sufficient to vest titles to lands in said board, 331. When owners of land refuse their consent, what may be done by said board, 381. Lands of individuals, improved by canals, &c. to pay a proportion of the costs, 381. Board to appoint an engineer and surveyor, and may adopt rules for surveying, assessing, &c., 381. Said corporation may enter upon any lands for the purpose of surveying, &c., 381. may sell reclaimed lands, 332. What money, &c. the board shall not expend, 382. Two hundred thousand dollars appropriated to their use, 382. The board shall have other necessary rights and powers for reclaiming the swamp lands, &c., 382. Governor to appoint three commissioners for the purpose of draining Mattamuskeet lake, 382. Commissioners to locate and contract for the cutting a canal, 383. Reclaimed land not to be entered, 383. Pay of the conxmissioners, 333. Public treasurer to pay out of the literary fund, 383. Commissioners to contract with individual proprietors for aid, 383. to report, &c., 383. to give bond, 383. Certain parts of the revised acts relating to internal improvement and the literary fund repealed, 384. Compensation of the members of the literary fund board, 384. Board to lend out certain moneys of the State if the Cape Fear Bank fails to accept the amended charter, 334. Accounts of the literary and internal improvement funds to pass through comptroller's office, 603. LIMITATIONS. Persons having right, shall make claim to their lands within seven years, or be forever barred, 371. Proviso that infants, femes covert, and persons non compos iventis, may bring suit within three years after disabilities removed, 372. Persons beyond seas, within eight years after their title accrued, 372. Proviso for a plaintiff in ejectment, whose judgment has been arrested or reversed for error, or against whom a verdict has been found, to commence a new action within one year, 372. 678 INDEX. LIMITATIONS, {Contimied.) Twentyone years' possession of land under color of title, and with known boundaries, to be a bar to the State, 372. Time within which personal actions must be brought, 372. Proviso in cases of writs of error, or reversal of judgment, &c., 373. infants, yemes covert, &c., 373. when the defendant is beyond sea, 373. . The limitation of personal actions to apply to bills, &c. after endorsement, in like manner as to promissory notes, 374. Time within which pencil actions must be brought, 374. Sureties to guardian bonds to be discharged after three years from the time the orphan comes of age, 374. Suits on the bonds of sheriffs, constables, clerks, and clerks and masters, to be brought within six years, 374. Fees due to clerks, sheriffs, &c. to be collected within three years, 374. Actions on justices' judgments to be brought within seven years, 374. Creditors must claim within seven years from the death of the debtor, or be forever barred, 375. Within what time after the qualification of executors or administrators, creditors must present their claims, 375. Proviso for infants, ./bttjcs covert, &c., 375. when the delay is at the request of the executor or administrator, 375. Executor or administrator must have advertised, &c., 375. Time within which presumption of payment on judgments, &c. may arise, 375. of satisfaction of mortgages, &c. may arise, 375. a scire facias against bail on any judgment or decree now existing must be sued out, 375. a scire facias against bail in any suit now existing, or hereafter to be brought, must be sued out, 376. Proviso where the plaintiff marries or dies after judgment, 376. for infants, yemes co«erf, &c., 376. Time not to be reckoned in case of nonsuit, arrest of judgment, or reversal for error, 376. Adverse possession of a slave for three years to give title, 376. Proviso as to parol gifts, 376. Mortgage of personal estate must be redeemed within two years after forfeiture, 376. Proviso that mortgagees may file their bills to foreclose at any time after forfeiture, 377. for mortgagors becoming lunatics, &c., 377. Indictments for misdemeanors, with certain exceptions, must be commenced within two years, 216. Proviso, where the judgment is arrested, or a nolleprosequi entered, 216. LOTTERY. Punishment for carrying on lotteries, 206. for selling tickets, &c. in lotteries, 206. LUMBER. See Inspections and Inspectors, MAD DOGS. Penalty and liability for not killing any dog bitten by a mad dog, 335. MAIL CARRIERS. Mail carriers may keep a ferry for their own use, 545. MAIMING. Malicious maiming, how punishable, 193. Unlawful maiming without malice, how punishable, 202. MANDAMUS. See Quo Warranto and Mandamus. MARRIAGE. Ministers of the gospel and justices of the peace to celebrate the rites of matrimony, 336. Clerks of the county courts to issue licenses to marry, upon taking bond, 386. Who may publish the bans of matrimony, 386. Penalty on minister and justices for celebrating the rights of matrimony contrary to law, 386. on clerks for issuing licenses contrary to law, 3S6. White persons prohibited from marrying Indians or persons of color, 386. Penalty on ministers or justices for marrying a white person to an Indian or person of color; 387. INDEX. 679 MARRIAGE, {Continued.) What dispostition to be made of the property of an infant female under fifteen years of age when she has been married contrary to law, 387. The trustees of such infant female's property to give bond, 387. Court s power over such trustees, 388. How to obtain a license when the parents or guardian of an infant female reside out of the State, 388. Penalty on clerks for illegally issuing a license to marry an infant female whose parents, &c. reside out of the State, 388. Marrying a female under fitteen, without the written consent of her father, indictable, 202. The clerk who issues a license for the marriage of a free negro, &c. with a white person, and the justice, &c. who marries such persons, shall be subject to indictment, 208. In case of a divorce, the innocent party may marry again, 241. Otherwise with regard to the offending party, 242. MARRIAGE SETTLEMENT. Marriage settlements to be proved and registered, 233. What marriage settlements shall be good against creditors, &c., 233. MATTAMUSKEET LAKE. See Literary Fund. MECKLENBURG DECLARATION OF INDEPENDENCE. A short narrative of it, 1. The declaration, 3. MEMBERS OF ASSEMBLY. See General Assembly. MEMBERS OF CONGRESS. Senators in congress, how to be chosen, 389. How to be commissioned, 389. . t-. u j- . ■ . .-.i j. The State divided into districts for choosing representatives in congress-Each district entitled to one representative, 389. . Time and manner of conducting the election of representatives to congress, 390 Governor may order elections at other than the regular time m certain cases, 390. Penalty on persons for voting more than once at an election, 390. Separate elections in counties, how to be conducted, 390. Dutv of the returning officer with regard to elections, 390. ,v H ^ » ReLm-officersof the different counties of the district to meet and compare the polls, and to give°a certificate of election to the successful candidate 391. Provision where there is an equal nun.ber of votes for two or more candidates, 391. Governor to commission the persons elected representaUves, 392. Returning officer's allowance for comparing polls, 392. How and when elections to be held in cases of vacancy, 392. MENONI STS. See Quakers, Moravians, Menonists and Dunkards. MERCHANTS. See Revenue. MILITIA Who are to be enrolled in the militia, and how provided, 394- Who are exempted from militia duty, 394. , , on^ Members of fire con.panies and persons of conscientious scruples exempt also, 395. Officers to enrol and make return of exempts, 395. Free persons of color not to be enrolled except as musicians, 395. Persons enrolled for duty to equip themselves, 396. Forfeitures for neglecting to equip, 396. How the infantry shall be divided, 396. Rpo-iments bri-ades and divisions, how distinguished, 396, 397. OffiCrs of the Infantry-Their grade, and how some of them to be appointed, 397, 398. Adjutant general to be appointed, 398. Governor may appoint four aids de camp, 398. ?:Xo-mcr 'foTr'esigning or failing to equip themselves within twelve months, 398. h"w major and brigadier generals, colonels and other field officers shall be elected, and commis- HowthT'Lhail resign, and to whom notification of vacancies to be made, and by whom, 399. Certain officers to give notice of their absence, 400. 6S0 INDEX. MILITIA, (Continued.) Officers to deliver to their successors money or papers, 400. Rules of discipline, 400. Captains' districts, how to be laid off, 400. Boundary lines of regiments in the same county, how they may be altered and regulated, 401. ^-Regulations as to company musters, 401. Company courts martial, how to proceed, 401. Appeals allowed from company courts martial, 402. Company musicians, how appointed, and their privileges, 402. Overseers of roads not to order out hands on days of company muster, 402. Captains of companies to make returns, 402. ^^...-Jlegimental or battalion musters, 402. Penalty on officers for failing to attend reviews or musters, 403. Commandants of regiments, &c. to give notice of reviews or musters, 403. Commissioned officers of regiments, &c. to meet for exercise the day before review or muster, 403. Penalties on officers and privates for misbehaving, 403. Persons on muster ground failing to do duty to be arrested, 404. Officers and privates attending musters, exempt from arrest in civil cases, 404. ' Not to pay tolls or ferriages in going to or returning from musters and reviews, 404. Parents, &c. liable for fines, 404. Regimental and battalion courts martial — Their power and duties, 404. Judge advocate to be appointed — His duty, 405. Duty of pay masters, 405. Officers holdmg a court martial must take an oath, 406. Proceedings at courts martial against delinquents, 406. Courts martial may adjourn, &c., 406. Duties of commanding officers of regiments and companies as to fines, 407. Returns to be made by the commandants of regiments, 407. Duties of major and brigadier generals, as to reviews, 407. Returns to be made by brigadier and major generals, 407. Penalty on a general officer, or commandant of a regiment, for failing to review or muster, to make returns, or to be properly equipped, 407. Duty of the adjutant general — Penalties for failing to perform his duty, 403. In certain cases returns may be made, and orders issued through the post office, 409. Governor may remit fines and penalties, 409. Regiments of cavalry, how to be formed, officered, equipped, &c., 409. Troops of cavalry, when to muster, how returns to be made, and who to command when mustering with infantry, 410. Field officers of cavalry to review and make returns, 410. Cavalry courts martial to be held, 410. Fines of cavalry officers and privates same as in the infantry, 411. How cavalry fines to be appropriated, 411. Duty of adjutant of the regiment, 411. Certain sections in relation to the infantry, to apply to the cavalry, 411. Provision when the number of a cavalry troop shall be less than required by law, 411. Volunteer companies of artillery, light infantry, grenadiers or riflemen may be formed, 412. Such companies may choose their own uniform, 412. Such companies to be under the command of the commandant of the regiment, and to do duty as other companies, 4l2. A regiment of volunteer companies may be formed — Field officers, how chosen, 412. How captains, lieutenants and non-commissioned officers, of such companies shall be elected or ap- pointed, 412. Such companies shall muster once in three months — May adopt rules and regulations for their own government, 412. Officers of volunteer regiments to make return, 412. Persons enrolled in volunteer companies not to return to the infantry except by permission, &c.,412. Volunteers bound to serve in the infantry until they equip themselves, 413. Officers of volunteer regiments to review, 413. How vacancies among the field officers of volunteer regiments shall be filled, 413. INDEX. 681 MILITIA, (Continued.) Certain sections in relation to the infantry, to apply to the artillery, &c., 413. General and other courts martial for the trial of officers, how to be appointed and held, 413. Officers of general and other courts martial, how to be selected, 414. Of what rank the officers shall be, 414. Officers for such courts martial to be regularly detailed, 414. How such officers shall be detailed, 414. Courts martial for the trial of officers, how constituted, 415. Officers of such court martial, how to take rank — Such officers to be sworn, 415. How witnesses to attend such courts martial shall be summoned, 415. Such witnesses to be sworn or affirmed, 415. ■ , Rules for the government of such courts martial, 416. Duty of the judge advocate in courts martial for the trial of officers, 416. Proceedings againt officers arrested and refusing to attend, 416. Perjury before courts martial, how punishable, 416. For what conduct an officer may be cashiered, 417- Detachments of militia for the United States' service, 417. Substitutes may be received in such detachmtuts, 417. Vacancies under the rank of field officers in detachments, how to be supplied, 417. A militia man after one tour, to be exempt from a second draft, 417. Penalty on militia men for refusing to perform duty, when ordered out in aid of the civil authority, 417. Seven justices may call out the militia in case of invasion or insurrection, 417. Duty of the commanding officer on such requisition, 418. Commanding officer of the regiment called out to notify his superior officer, and he to notify the governor, 418. Three justices may order out the militia to suppress outlawed or runaway slaves, 418. Pay of the militia when in service, 418. Punishment of officers and privates for refusing to appear, on call or alarm given, 419. Punishment for desertion, 419. Repealing clause to the act concerning the militia, 419. Adjutant general to have copies of the act concerning the militia printed and distributed, 419. Wardens of the poor to support the families of poor militia men absent on service, 475. Governor may distribute the public arms to volunteer companies, upon the commanding officer giv- ing bond, 485. The police authorities of a town, or the senior colonel of a county, may petition for and receive arms, upon giving bond, 435. How the public arms may be distributed in cases of invasion or insurrection, 485. Duty of the militia officers on receiving the public arms, 485. Penalty for not keeping the public arms in order, 436. Penalty for selling or embezzling the public arms, 486. On the death, &c. of a private, his arms to be taken and delivered to the person succeeding him, 486. Militia officers to demand the public arms, when in the possession of those to whom they were not distributed, 486. Detachments ordered into service maybe furnished with arms, 486. The same regulations prescribed for the arms hereafter to be distributed, to be applied to those heretofore distributed, 487. Upon the dissolution of a volunteer company, the arms to be delivered to the colonel, 488. MILLS AND MILLERS. What shall be public mills, 420. Persons wishing to build public mills, how to proceed, when they own land only one side of the stream, 420. Persons obtaining an order to build a mill, how to obtain a title to the land on which it is built, 421. When an order for one mill is granted, another shall not be granted within two miles on the same tract of land — Not to overflow another or create a nuisance, 421. Within what time the mill is to be commenced and finished, 421. What time infants, &c. may have for rebuilding mills burnt or destroyed, 421. Millers shall grind according to turn, 421. VOL. I. 86 ' 682 INDEX. MILLS AND MILLERS, {Continued.) What toll they may take, 421. What measures millers shall keep in their mills — Keeping false measures indictable, 422. Persons injured by the erection of mills, how to proceed to recover damages, 422. When notice is served upon the tenant in possession of a mill, instead of the owner, how such te- nani is to proceed, 422. If the tenant fail to file an affidavit, he is to be taken as owner, 422. When the owner appears, he is, upon giving bond, to be admitted co-defendant with the tenant 422. Upon the hearing of the petition, what proceedings are to be had for the purpose of having the damages assessed, the verdict of the jury returned, and how long such verdict shall be in force, 423. Provision in cases where the damages are assessed as high as twenty dollars, 423. Provision as to costs where the verdict is, that there is no damage, or where the damages are under five dollars, 424. How execution shall issue against the defendant for the damages, 424. What pay the sheriff and jurors shall be entitled to, 424. Upon appeals, the trial to be had at bar in the .superior court, 424. Plaintiff to pay costs if he appeals, and fails to recover higher damages , 424. Keepers of public mills to be exempt from serving on juries or working on roads, 424. Appeals allowed in cases of petitions for damages caused by the erection of public mills, 62. Owners of water mills subject to indictment for not keeping up bridges connected with their mills, 200. Millers to be exempt from militia duty, 395. Owners of water mills situate on public roads, to keep up bridges connected with their mill dams, 543. Penalty on owners of water mills for failing to keep up bridges, 543. MINES. Three thousand acres of land granted for the use of iron works, as a bounty, 425. Entry taker to make out a copy of the bounty land, and transmit it to the county court, 425. Court to appoint a jury to view the bounty lands — Jury to make their return and the same to be re- corded, 425. Conditions to entitle the proprietors to the land granted, 425. Manner in which the grants are to be obtained, 426. Proviso, that the land shall revert upon failure to erect the works, 426. Bounty lands to be exempt from taxation for ten years, 426. Lessors of gold mines not to be taken as partners with their lessees, unless they so contract, 426. MINISTERS OF THE GOSPEL. See JaroTs and Jurxj, Marriage. MONEY REMAINING IN THE HANDS OF CLERKS AND SHERIFFS. Clerks of supreme, superior and county courts, and clerks and masters in equity, to make statements and returns of all moneys remaining in their hands for three years, 427. To whom such moneys shall he paid over, subject to be reclaimed by the rightful owner, 427. Clerks, and clerks and masters, failing to pay over such moneys, to forfeit one thousand dollars, 427. Clerks, and clerks and masters, failing to pay over moneys remaining in their hands, how to be proceeded against, 428. Sheriffs and coroners to pay costs on executions to the clerks, 428. Sheriffs to account and pay over moneys in their hands in the same manner as clerks, &c., 423. Clerks, &c. to set up a statement of their returns in the court house for six months before making such returns, 428. Penalty on clerks, &c. for failing to set up statements, 428. MORAVIANS. See (Quakers, Moravians, Menonists and Dunkards. MORTGAGES AND DEEDS IN TRUST. No mortgage or deed in trust good against creditors unless registered within six months, 231. Mortgage or deed in trust good against creditors, &c. only from the date of the registration, 231.' Clerks of the county courts authorized to take probate of mortgages and deeds in trust, 232. Register to endorse on each mortgage or deed in trust the day he received it, and to register in the order of delivery, 232. INDEX. 683 MORTGAGES AND DEEDS IN TRUST, (Continued.) What remedy the last mortgagee shall have when there is more than one mortgage in force at the same time, 232. Where an action is brought to recover money secured by mortgage, or for the mortgaged property, the defendant may be discharged by bringing the money due on the mortgage into court, 232. Proviso where the defendant denies the right of redemption, 233. Infant trustees, how to convey, 234. The equity of redemption and the legal right of redemption in lands, liable to execution, 266. Sheriff to set forth in his deed that the land was under mortgage, 266. Time within which presumption of satisfaction of mortgages, &c. may arise, 375. Mortgage of personal estate must be redeemed within two years after forfeiture, 376. Proviso, that mortgagees may file their bills to foreclose at any time after forfeiture, 377. Proviso for mortgagor's becoming lunatic, &c., 377. NAMES. Superior courts may, upon petition, change the names of any persons desiring it, 429. NAVIGATION. See Pilots and Commissioners of Navigation. NEGOTIABLE SECURITIES. See Bills, Bonds and Promissory Notes. NEW TRIAL. New trial may be granted by the court where the defendant is convicted, 219; NOTARIES. Governor to appoint one or more notaries in each county, 429. Notaries to take oaths, 429. Clerks and clerks and masters may act as notaries, 430. Fees of clerks, &c. when acting as notaries, 430. NOTICES. Sheriff, &c. to serve all notices that may be necessary, in any proceeding in law or equity, 172. How notices to be served, 173. Penalty on officer for failing to serve notices, or for making a false return, 173. Notice may be given and proved as heretofore, 173. Sheriffs to serve notices issuing from clerks and masters in all references made to them, &c. 181. Constables to serve all notices that may be required in cases before justices, 360. How such notice to be served and returned, 361. Penalty on constables for failing to serve notices, 361. Notice may be given and proved as heretofore, 361. OATHS. Oaths, how to be administered, 431. A person conscientiously scrupulous of laying his hands on the scriptures, to be sworn with an uplift- ed hand, 431. Quakers, Moravians, Dunkards and Menonists to be affirmed, 432. Their affirmation to be received in all cases, civil and criminal, 432. Oaths or affirmations to support the constitution of this State, to be taken by all officers, 432. Also an oath to support the constitution of the United States, to be taken by all officers and members of assembly, 432. Form of the official oath of the governor, 433. of the secretary of state, 433. of the public treasurer, 433. of the comptroller, 433. of a judge of the supreme court, 433. of a judge of the superior courts, 433. of the attorney general and solicitors, 434. of a justice of the peace, 434. of the clerk of the supreme court, 435. of a clerk of the superior courts, 436, of a clerk and master, 435. of a clerk of the county courts, 435. of a sheriff, 435. of a coroner, 436. of a county attorney, 436. of a constable, 436. 684 INDEX. OATHS, (Continued.) Form of the official oath of a county trustee, 436. of a register, 436. of a standard keeper, 436. of a ranger, 437. of an entry taker, 437. of a county surveyor, 437. of a processioner, 437. of inspectors of tobacco, 437. of a picker of tobacco, 437. of an inspector of flour, 437. of inspectors of other articles than tobacco and flour, 438. of an attorney at law, 438. The oath of a witness on a capital trial, 438. of a witness on a traverse, 438. of a witness in civil cases, 438. of a witness to prove a will, 438. of a witness to be sent to the grand jury, 438. of a petit jury in a capital case, 439. of a petit jury in criminal cases, not capital, 439. of a jury in civil cases, 439. of a petit jury laying off do wer, 439. of a jury to assess damages for overflowing lands, 439. of the foreman of the grand jury, 439. of the other grand jurors, 439. of a constable charged with a jury, 440. of a constable to attend the grand jury, 440. of an executor, 440. of an administrator, 440. of commissioners dividing and allotting real estate, 440. of commissioners allotting a year's provisions, 440. of valuers of strays, 440. Book debt oath, 440. for an executor or administrator, 441. Deputies to administer oaths wherever their principals are authorized to do so, 441. Sheriff's oath on settling his accounts with the comptroller — Also his oath as to the collection of delinquent taxes, 530. Insolvent debtors' oath, 321, 323. OFFICES. Penally for holding an office both under this State and any other state or the United States, 441. Proviso as to justices of peace, and militia officers, 442. Contracts for the sale of offices, void, 442. Buying and selling offices prohibited, and how punishable, 198. '' No officer of the United States to be a commissioner of wrecks, 627. OFFICIAL BONDS. Suits on the official bonds of clerks, sheriffs, &c. may be brought by the party injured, 443. Declaration must shew in whose behalf the suit is brought, 443. Person injured may at his election sue the officer in an action on the case, 443. Remedy before a justice against officers and their sureties for neglect to pay over moneys withia the jurisdiction of a justice, 443. Summary remedy in court against officers failing to pay moneys received, 443. Twelve per cent, damages allowed on money unlawfully detained by an officer, 444. Clerks of the county court to record the names of the justices present at the qualification of officers, 444. Such justices failing to take bond, are to be held securities themselves, 444. Copy of the record to be evidence against them, 444. Suits on the bonds of sheriffs, clerks, &c. must be brought within six years, 374. « ORDINARIES. Retailers of liquors to sell by sealed measures, 445. INDEX. 685 ORDINARIES, (Continued.) How a license to keep an ordinary may be obtained, 445. Bond to be given, 445. How license to issue, and how long to continue in force, 446. Justices to establish rates of charges, 446. Duty of ordinary keepers, 446. No ordinary keeper to give credit for liquors beyond ten dollars — Proviso, 446. Penalty on ordinary keepers for entertaining slaves or sailors, 446. Persons wishing to obtain licenses to retail spirituous liquors, how to proceed, 447. Tax on tavern keepers, 517. Keepers of public ferries to keep up a house of entertainment at their ferries, 545. ORPHANS. See Guardian and Ward. OVERSEERS. Overseer leaving his employer to forfeit his wages, 447. OVERSEERS OF ROADS, RIVERS AND CREEKS. See Roads, Bridges and Ferries, Rivers and Creeks. Overseers of roads to be indicted for neglect of duty, 200. OYSTERS. Penalty for transporting oysters out of the State, 448. Offenders to give bail, 448. Duty of magistrates in apprehending offenders, 448. Penalty for using any instrument except tongs in taking oysters, 449. PARTITION. One or more tenants in common may file a petition in the county or superior court for a division of real estate — Proceedings thereon, 450. The petition to be filed in the superior court when the land lies in different counties, 450. If one co-tenant is absent from the State, advertisement must be made, 451. Commissioners to divide the land as equally as possible, 451. Sums charged on dividends of minors, not to be paid till they come of age, 451. to bear interest, 451. Guardian of minors shall pay when he has assets, 451. Sheriff shall summon commissioners and swear them, 451. Form of the oath to be taken by them, 440. Pay of the commissioners, 451. Court to order by whom the costs of the petition shall be paid, 451. Court of equity may order a sale of real estate for division, when it cannot be divided otherwise without prejudice to the parties, 452. Court of equity may order a sale of real estate required for public purposes, upon the petition of the tenants in common, 452. Where the sale of real estate shall be made when ordered by the court of equity, 452. The deed of the clerk and master shall convey title, 452. Where there is dower on the land, the court may decree a sale, and apportion the dower interest, 452. Proceedings where lands descended or devised lie partly in this State and partly in another state, 453. The court may decree a partition of such lands, 453. ' Court shall appoint commissioners — Duty of such commissioners in making a partition of such lands, 454. What final decree the court may make, 454. When a decree for partition in another state may be enforced in this, 455. Court to judge whether another state has passed a law in conformity to this, 456. Time allowed \.o femes covert, infants, &c. to object to any final decree, &c., 456. How a partition of personal property among tenants in common may be made, 456. When personal property may be sold for a division, 457. Court may appoint a guardian to an infant, &c. for the purposes of such division or sale, 457. Compensation of the freeholders, clerk or other commissioner, 457. PATENTS. See Entries and Grants. Persons aggrieved by the issuing of patents, how to proceed, 255. Proceedings and judgment of the court in such cases, 256. 686 INDEX. PATENTS, (Continued.) Copy to be filed in the secretary's office, 256. Whenever the State wishes to repeal letters patents or grants, supreme court to have original juris- diction, 256. What decree the court may make, 256. Cases now in the superior court, may be removed to the supreme court, 256. PATROL. County courts to appoint a patrol committee, who shall employ a patrol, 458.. The county courts may also appoint a patrol, 458. Penalty on the patrol committee for refusing to act, 458. Duties and powers of the patrol, 458. County courts to adopt rules for the regulation of the patrol, 459. Patrol committee may discharge patrollers and appoint others, 459. Penalty on patrol for refusing to act, 459. Compensation to patrol, 459. County courts may lay taxes for the payment of the patrol, 126. PEDLERS. See Revenue. Punishment for hawking and peddling without a license, 202. Free negroes, &c. not to hawk or peddle without a license, 591. PENSIONS. Pensions allowed to persons disabled in the militia service, 460. How such pensions to be obtained, 460. Pensions allowed to the widows and orphans of such disabled militia men, 460. PERJURY. Perjury, how punishable, 203. Subornation of perjury, how punishable, 203. Proviso as to cutting off ears, 203. PETITION. Petitions may be filed in vacation, 167. Clerk to issue a capias, upon petitioner's making afiidavit of the amount of his demand, 167. When a petition is served upon one of several defendants and the others reside out of the State, the court shall order publication to be made, 167. Court may order the clerk to audit and settle accounts, 167. Anv two justices may take depositions to be read on petitions, 168. Fees of clerk on petitions, 168. Legacies, filial portions, and distributive shares of intestates's estates, recoverable by petition to the superior or county court, 369. Rules and method to be observed in such petitions, 369, 370. Power of the court of equity as to orphans and their estates not to be affected, 370. PETITION FOR REHEARING, ^et Bill of Review. PHYSICIANS. See Jurors and Jury, Cluarantine and Health, Militia. PILOTS AND COMMISSIONERS OF NAVIGATION. Commissioners of navigation for Cape Fear, how appointed, 461. Such commissioners to appoint a clerk, 461. Powers of the commissioners, 461. Power of the said commissioners as to pilotage, 462. Harbor master to be appointed, 462. Commissioners to appoint pilots, 462. Bond to be given by pilots, 462. Pilots may be removed for misbehavior, 462. Penalty on persons not authorized as pilots for acting as such — Proviso as to the port of Bruns- wick, 463. Commissioners to decide disputes between masters of vessels and pilots, 463. No stay of execution allowed— But either party may appeal, 463. Notice to be given when the rates of pilotage are altered, 464. Commissioners to prescribe the number of boats for pilots, 464. Rights of pilots as to the Main and New Inlet bars of Cape Fear, 464. Pilots to keep apprentices, 464. Penalty on pilots for not attending when requested, 464. Proviso as to bar pilots, 465. INDEX. 687 PILOTS AND COMMISSIONERS OF NAVIGATION, {Continued.) Master to pay pilots for detention, 465. Penalty on pilots for refusing or neglecting to go to a vessel shewing a signal, 465. Pilots entitled to full pilotage, though the master refuse to take them, 465. When pilots entitled to only one third fees, 465. Rate of charge when vessel deepens or lightens, 466. Bar pilots to have a telescope or spy glass, 466. What vessels exempt from pilotage, 466. Throwing ballast, &c. into the river, prohibited, 466. Penalty on captain of a vessel from which ballast is so thrown, 466. Duty and powers of the commissioners in this respect, 466. Penalty on branch pilots for not informing when ballast is thrown into the river, 466. Commissioners of navigation for Newbern, Washington and Edenton, appointed, 467. Power of such commissioners, 467. Board of commissioners appointed for Ocracock— Their duty in regard to pilots, 467. Their compensation, 467. Oath to be taken by them, 468. What vessels shall be compelled to take a pilot, 468. Pilot becoming incompetent, his branch may be revoked, 468. Commissioners of navigation for Old Topsail inlet — For Bogue inlet, 468. The duty and power of such commissioners, 468. Penally for piloting without a branch, 468. Bonds to be given by pilots, &c., 468. Commissioners of navigation may remove pilots, 468. Penalty for acting as pilots after removal, 468. on pilots for refusing to go to a vessel having a signal, 469. Pilots' pay if driven off the coast after boarding, 469. Pilots entitled to be paid if they go off to a vessel, though the master will not take them, 469. No pilotage on vessels under sixty tons burthen, 469. Rates of pilotage for the Ocracock pilots, 469. at Old Topsail inlet, 469, for Bogue inlet, 470. to be annexed to the branches, 470. No slave to act as pilot over any bar, 470. Penalty for throwing ballast into any channel, 470. How penalties and fines to be disposed of, 470. PITCH. See Inspections and Inspectors. PLEAS AND PLEADING. See Practice, Pleas and Process. POLL TAX. See Revenue. POOR. Wardens of the poor to be elected every three years, 471. Sheriffs' duty in summoning wardens, and penalty for failure, 471. How the election of wardens shall be conducted, 472. Oaths to be taken by wardens, 472. Penalty on wardens for refusing to qualify, 472. Vacancies to be supplied by the remaining wardens, 472. On failure of the election at the usual time, sheriff to appoint another day of election, 472. Place of the meeting of the wardens, 473. Wardens to appoint a clerk, 473. Three wardens may call a meeting, 473. Penalty on the sheriff for failing to summon, and the wardens for failing to attend, 473. Wardens to keep minutes and accounts, 473. To publish an account of their receipts and expenditures annually, 473. Tax for the poor to be laid by the county courts on application of the wardens, 473. Sheriff to collect the tax and account to the wardens, 473. Wardens to settle with their successors, 474. County courts may erect poor houses, 474. Poor houses to be under the direction of the wardens, 474. Property of wardens exempt from taxation, 474. 688 INDEX. POOR, (Continued.) County courts may lay taxes for the erection of poor houses, 474. What shall be a legal settlement, 474. How paupers coming into a county may be removed, 474. County where the paupers were last legally settled, to pay all charges, 475. Housekeepers to give notice of such paupers to the wardens, 475. Wardens to support the families of poor militia men absent on service, 475. Wardens to provide for infirm slaves neglected by their owners, and may recover the costs from such owners, 475. Owners to have previous notice, 475. Executors, &c. liable to the wardens, if they neglect to provide for slaves under their care, 476. Duty of the wardens when the owner lives in another county, 476. Two wardens may act in the case of such slaves, 476. Power of the wardens when a person is about to remove from the county leaving infirm slaves, 476. All horses, cattle, &c. belonging to slaves, to be seized by the wardens, 476. How forfeitures and penalties under the act providing for the poor may be recovered, 476. PORK. See Inspections and Inspectors. POSSESSION. See Limitations. POWER OF ATTORNEY. See Deeds and Conveyances. PRESIDENT AND VICE PRESIDENT OP THE UNITED STATES. See Electors of Presi- dent and Vice President. PRESUMPTION OF PAYMENT OR SATISFACTION. See Limitations. PRETENDED RIGHTS. The buying or selling pretended rights prohibited, 260. PRACTICE, PLEAS AND PROCESS. Actions where to be brought, 150. Actions otherwise brought to be abated on plea, 151. No suit to be brought in any court for any claim under sixty dollars on an unliquidated account, &c. nor for a sum under one hundred dollars due by note, &c., 151. If a suit be commenced in the county court for a sum under sixty dollars due by account, it may be abated — if for a sum under one hundred dollars due by note, &c. it may be dismissed, 151. If a suit in either of those cases be commenced in the superior court, it shall be dismissed, 151. In either of those cases in the superior court, where the suit is commenced for more and the jury find less to be due, the plaintiff shall be nonsuited unless he file an affidavit that more is due, 151. Not to extend to suits on penal bonds, &c., 151. Sheriif to execute all process from courts, 568. The day when process issues to be marked thereon, and the sheriff to endorse the day when he re- ceives it, 152. Clerks to take security for costs before issuing any writ or other leading process, otherwise the suit may be dismissed, 152. Proviso in favor of persons smng in Jbrma pauperis, 152. Clerks to enter in a book the names of parties to suits and their sureties, l52. Penalty on clerks for issuing process without taking security, 152. Poor persons may sue in Jbrma pauperis, 153. When writs may issue to diiferent counties at the same time, returnable to the county or superior courts, 153. The real plaintiff inaction of ejectment to give a prosecution bond, 153. Persons desiring to be made defendants in ejectment must give a bail bond, 153. Where plaintiff in ejectment makes affidavit that defendant entered as his tenant, &c., the de- fendant shall not plead until he gives bond for the costs and damages, 153. What facts in such case the jury are to find, 154. If they find for the plaintiff they must assess damages for the occupation, &c., 154. Defendant may rebut plaintiff's affidavit by his own, 154. If plaintiff does not give security, his suit to be dismissed, 154. Defendant in ejectment to give bailor be in custody before pleading, 154. Writs and other process, when to be returned, 154. How long before court to be executed, 155. When the sheriff returns that he has the defendant in jail, how the plaintiff shall proceed, 155. INDEX. 689 PRACTICE, PLEAS AND PROCESS, (Continued.) Sheriff to take no obligation from any person in his custody, but such as is payable to himself as sheriff, 569. , ' No female shall be taken or imprisoned for debt, 155. How the plaintiff may proceed when the sheriff returns that the defendant is not to be found, 155. If goods be taken on a judicial attachment, and be not replevied, they may be sold on a final judg- ment, 155. When a sheriff returns that the defendant is not an inhabitant of his, but of some other county, an alias shall issue to the count^where the defendant resides, 155. Times at which sheriff shall not execute civil process, 155. If there be in any county no proper officer to execute process, or he refuse to do so, any judge may direct the sheriff of an adjoining county to execute the same, 156. Additional compensation allowed to sheriffs for executing process out of their county, 156. Sheriff failing to execute and return process, to forfeit one hundred dollars, and be also liable to indictment, 156. Rules of court, 157. Declaration to be filed within the three first days of the term, or the suit may be dismissed, 157. Defendant to appear and plead or demur at the same term, 157. When special pleading is required, the time may be enlarged, 157. Writ of inquiry as to the value of foreign currency to be executed at the same term with the judg- ment, 157. Plaintiff to reply or demur at the same term, 157. Other pleas to be filed and issues made up at the same term, 157. Time may be allowed to argue a demurrer, bill of exceptions, &c., 157. Parties may enter their own pleas, 157. Clerk to enter proceedings of court in a well bound book, 157. Jury causes to be first tried, 157. Motions in arrest of judgment to be argued within the three last days of the term, 157. Argument causes, when to be argued, 158. No plea in abatement to be received, but on affidavit or proof, 158. When plea in abatement is overruled, plaintiff shall recover costs, 158. As many pleas as may be thought necessary, maybe pleaded, 158. A plea since the last continuance not to be a Avaiver of former pleas, 158. All issues to be tried at the succeeding term after being made up, 158. No cause to be continued, but by consent of parties or on affidavit, 158. Court may order a party continuing a cause to pay costs, 158. Not more than one attorney to speak in any cause, 158. Every attorney appearing in any cause, to produce and file a power of attorney, if required, 158. When it is necessary for the attorney to retain the power, what to be done, 158. No attorney to enter an appearance, until the power is produced, if required, 158. In actions upon penal bonds, &c. plaintiff may assign as many breaches as he thinks fit, 159. If judgment be given for the plaintiff on demurrer, &c., he may suggest as many breaches on the roll as he thinks fit. 159. Defendant may pay damages and costs into court, and if so no execution shall issue, 159. Judgment shall continue and be a security for further breaches, 159. Plaintiff may have scire, facias upon such judgment, 159. Rules for taking testimony and summoning witnesses, 160. After the removal of a cause, subpoenas and commissions to take testimony may be issued from either court, 162. Party cast to pay but for two witnesses to prove the same fact, 163. Costs of publication and postage of letters covering process, to be taxed, 163. The party in whose favor judgment, &c. is given, to recover full costs, 163. Defendant may, in certain cases, plead a set-ofl", or give it in evidence under the general issue, upon notice to the plaintiff. 164. In what cases, in actions of slander, and of assault and battery, the plaintiff shall not recover more costs than damages, 164. In trespass quare clausum fregit, the defendant may disclaim and plead tender, &c., 164. If in such case the jury find the trespass involuntary, and the tender in favor of the defendant, the plaintiff shall be barred, 164. VOL. I. 87 690 INDEX. PRACTICE, PLEAS AND PROCESS, {Continued.) In actions of trespass, &c., if there be more than one defendant, and one or more be acquitted, the persons so acquitted shall recover full costs, unless the judge certifies, &c., 164. In what cases a subpoena duces tecum may issue, 165. Court may order either party to produce books or papers — Consequences of a refusal to pro- duce, 165. In petitions for dower or partition, the costs are at the discretion of the court, 165. Action maybe brought against the maker of a bill, &c., jointly with the endorsers, or against all or any one of them, 1 65 . On joint obligations, &c. of copartners, &c. action may be brought against all or any one or more, 165. Joint obligations shall survive against heirs, executors, &c. of deceased obligors, 166. How the judgment is to be entered when the suit is against the executor, &c. of the deceased obli- gor and the survivor, 166. , When more actions than one are brought on a promissory note, &c. the court may consolidate them, 166. Where a defendant to a suit in the county court removes himself or his property, the clerk may issue an execution to any county, &c., 166. In actions for money due by contract, except penal bonds, the jury must distinguish between prin- cipal and interest, and the judgment for the principal shall carry interest, 166. In an action on a single bill, &c. if defendant makes no defence, clerk may calculate interest with- out a writ of inquiry, 167. Petitions may be filed in vacation, 167. Clerk to issue a capias upon petitioner's making an affidavit of the amount of his demand, 167. Where a petition is served upon one of several defendants, and the others reside out of the State, the court shall order publication to be made, 167. Court may order the clerk to audit and settle accounts, 167. Infants may sue by their next friend, 168. Either party to a suit may tender to the judge a bill of exceptions, 16S. Judge to sign and seal the same, or if he refuse, some other person present may sign and seal it, 168. Actions of account may be brought against the executors and administrators of guardians, &c., 168. If an action for any penalty be brought in good faith, and defendant plead a former judgment against him, &c., plaintiff may reply fraud, &c., 168. In an action of debt on a bond, &c. payment may be pleaded, 169. In an action of debt on a bond with a penalty, if the defendant bring into court the principal, inter- est and costs, the bond shall be deemed discharged, &c., 169. Judgment of a court to stand till reversed, 169. Upon an appeal by a defendant from a justice's judgment, or a recordari obtained by a defendant, court may compel plaintiff to give security, &c., 169. No execution to issue on a judgment after a year and a day, without a scire facias to revive the same, 170. Plaintiff shall not be nonsuited after verdict, 170. The death of either party between verdict and judgment shall not be assigned for error, 171. Ill suits upon bonds of executors, administrators and guardians, upon motion at the appearance term, a reference may be made to have an account stated, 171. In suits involving questions of boundary, the court may order a survey — Proceedings thereupon, 172. Clerk not to affix the seal of tlie court to process to be executed within the county, 172. Slieriff, &c. to serve all notices that may be necessary in any proceeding in law or equity, 172. How notices to be served, 173. Penalty on officer for failing to serve notices or making a false return, 173. Notice may be given and proved as heretofore, 173. The return of a sheriflF on a scire facias that he has executed the same, sufficient evidence of the service, 173. Defendants, upon trial, may show that they are sureties, and the jury or justice to discriminate the principal from the sureties, 173. In such case the officer shall levy first on the property of the principal, 173. Property of the principal shall be first sold, 173. INDEX. 691 PRACTICE, PLEAS AND PROCESS, (Continued.) A judgment for the costs may be given against the plaintiff, and tlie sureties to his prosecution bond upon his failing to prosecute with success, 173. A defendant against whom judgment is rendered, may pay the money to the clerk before execution issues, 174. Clerk to pay the same to the party entitled to receive it, 174. Judge, how to deliver his charge to the jury, 174. Judges of the supreme court to prescribe rules of practice for the superior courts, 186. Ofiicers and privates attending any muster or review to be exempt from arrest in civil cases, 404. For practice, &c. in equity, see Courts of Equity. PRISONERS. Keepers of jails in this State to receive and keep prisoners of the United States, 478. Jailers to have the same fees as for keeping prisoners of this State, 478. When the jail of any county shall be destroyed the prisoners shall be sent to the jail of some adjoining county, 473. When there shall be no jail in any county, the courts and magistrates may send"prisoners to the jail of an adjoining county, 478. When there is no jail in any county, the sheriff, &c. may confine any person arrested under process civil or criminal, in the jail of an adjoining county, 478. Sheriff, apprehensive of prisoners escaping, how to proceed to obtain a guard, 479. Persons ordered on guard to receive compensation, 479. Prisoners committed for criminal offences to bear the charges of imprisonment, 479. Claims for guarding, &c. prisoners, to be paid by the county from which they are sent, 479. Prisoners may purchase necessaries in addition to the diet furnished by the jailer, 479. Penalty on jailers for injuring prisoners, 480. Jailer to cleanse the jail and furnish diet, &c., 480. Blankets and bed clothing to be provided for the use of prisoners, 480. Prison bounds for the benefit of prisoners to be laid out by the county court, 480. Bonds taken from debtors for keeping the prison bounds, how to be proceeded on, 480. Manner of transferring prisoners from a sheriff to his successor, 481. Prisoners to be confined in the proper apartments of the jail, 481. Penally on sheriff or jailer for confining them otherwise, 481. PRISONS. See Court Houses, Prisons and Stocks . Breaking prison, when a capital offence, 195. PRIVATE SECRETARY TO THE GOVERNOR. Governor shall appoint a private secretary who shall enter letters in a letter book, 303. Letter book to be kept in the executive office, 303. Salary of the governor's private secretary, what and when to be paid, 549. Fees of the governor's private secretary, 551. PROCESS. See Practice, Picas and Process. PROCESSIONER AND PROCESSIONING. County courts to divide their counties into districts, and appoint a processioner in each district, 482. Processioner to take oaths, 482. Form of processioner's oath of office, 437. Owner of lands, how to proceed to have them processioned, 482. When land lies partly in two counties, it may be processioned by processioners in either, 482. Processioner to make out a certificate in words at full length, and return it to the clerk, &g., 483. Certificate to be recorded by the clerk, 483. What to be done when a line is disputed, and the processioner is forbidden to proceed, 483. Person, whose lands have been twice processioned, to be deemed the owner, 483. Proviso as to what persons shall not be bound by such processioning, 483. Fees of processioners, 559. • PROFANE SWEARING. Penalty on persons for profanely swearing in the hearing of a justice, 608. A public officer to pay double, 608. Penalty for profanely swearing in a court of record, 60S. Power of justices as to these offences, 608. Within what time the offences must be prosecuted, 608. 692 INDEX. PROMISSORY NOTES. See Bills, Bonds and Promissory Notes. PUBLIC ARMS. The public arras, with certain exceptions, to be deposited in the public arsenals, 484. Keeper of the public arms to be appointed, 485. Governor to have the arsenals protected, 485. may distribute the public arms to volunteer companies, upon the commanding officer giving bond, 485. The police authorities of a town, or the senior colonel of a county, may obtain arms upon giving bonds, 485. How the public arms ma,y be distributed in cases of invasion or insurrection, 485. Duty of the militia officers on receiving the public arms, 485. Penalty for not keeping the public arms in order, 486. Penalty for selling or embezzling them, 486. On the death, &c. of a private, his arms to be taken and delivered to his successor, 486. Militia officers to demand the public arms when in the possession of those not entitled to them, 486. Detachments ordered into service, may be furnished with arms, 486. The same regulations prescribed for the arms hereafter to be distributed, shall apply to those here- tofore distributed, 487. Adjutant general to have the public arms repaired and stamped, 487. Public arms now in the arsenals, to be deposited at certain places for distribution, 487. Adjutant general to inform the senior colonel of each county, who shall send for the arms and dis- tribute them, 488. Upon the dissolution of a volunteer company, the arms to be delivered to the colonel, 488. Expenses of repairing and stamping the public arms to be paid by the treasurer, 488. PUBLIC BUILDINGS. Who shall be a board to take charge of the public buildings, 562. Board to direct repairs, which shall be paid by the public treasurer, 562. Unlawful to deface the walls of the state house, 562. If an infant oifends, parent or guardian to pay, 562. Burning a public building, punishable with death, 192. Attempt to burn a public building, how punishable, 197. PUBLIC DOCUMENTS. How the public documents, transmitted by the general government, shall be distributed, 489. PUBLIC LANDINGS. Former places of landing continued, and county courts may appoint others, 330. PUBLIC LANDS. Persons trespassing on the public lands, liable to indictment, 201. PUBLIC PRINTING. The secretary of state to let out the printing of the acts, &.c. of the legislature — To let out the jour- nals separate from the acts, 490. Also the printing to be done for either or both houses of the General Assembly, 490. Persons contracting, to give bonds, &c., 490. The secretary of state to file the proposals with the governor, 490. What number of the acts and journals shall be printed, and how they shall be distributed, 490. The public acts to be printed separate from those of a private nature, 491. What to be published with them, 491. Within what time copies of the acts and journals shall be furnished to the printer, and by whom — Within what time to be printed, 491. Secretary to have them delivered, 491 . Governor, treasurer, &c. to have blanks, &c, printed for their offices, 491. In what form the acts, &c. shall be printed. The secretary of state to keep a book for the names of the justices of the peace in the State, 491. Advertisements, where to be made in certain cases, 492. PUBLIC TREASURER. See Treasurer of the State. INDEX. 693 QUAKERS, MORAVIANS, MENONISTS AND DUNKARDS. Quakers competent to serve as grand and petit jurors in criminal cases, 149. may wear their hats in court, 174. Persons having scruples of conscience against bearing arms, to be excused from the performance of militia duty, 395. Quakers, Moravians, &c. to be afSrmed, 432. Their affirmations to be received in all cases, civil and criminal, 432. QUARANTINE AND HEALTH. Who may direct quarantine, and when, 492. Masters and pilots of vessels to report, 493. Duty of those ordered to perform quarantine, 493. Vessel coming from an infected place, to anchor at quarantine ground, 493. Coming into port without permission, the master or pilot indictable, 494. Force may be used to remove such vessel, 494. Port physicians may be appointed, 494. Penalty for passengers or crew breaking quarantine, 494. Penalty on persons going on board without permission, 494 . Penalty on master for permitting it, 495. Such persons may be ordered to remain on board, 495. Persons breaking quarantine may be arrested and sent back, 495. Penalty for landing any articles, 495. Oath may be required of the master as to the health of his crew, &c., 495. Penalty for giving a false certificate, 495. Provisions to be furnished vessels under quarantine, 495. How penalties recovered and applied, 495. Penalty on pilots in certain cases, 496. Commissioners of navigation may appoint harbor masters and health officers, and enact bylaws and regulations, 496. Commissioners of seaport towns to have, in certain cases, the authority of commissioners of naviga- tion, 496. What shall be considered nuisances in seaport towns, 49G. Owners of lots in seaport towns to keep them drained at certain seasons — Penalty for neglect, 497. Coimnissioners may remove the nuisance at the expense of the owner, 497. Officers of police in incorporated towns, to adopt measures for preventing contagious diseases, 497. QUO WARRANTO AND MANDAMUS- In what cases an information may be filed, and by whom, 498. Nature of the proceedings in such cases, 498. In certain cases several rights may be tried in one information, 498. Pleas, when to be filed, 498. Upon conviction, what judgment the court may pronounce, 498. Costs to be recovered by the party succeeding, 499. A return shall be made to the first mandamus, 499. Court may give time to make return, plead, &c., 499. Returns may be contested, and proceedings thereon, 499- If the plaintiff have a verdict in his favor on such contested return, what consequences shall follow, 499. RAIL ROADS. Remedy for persons having stock killed upon rail roads, by the engines or cars, 101. RALEIGH, The city of Raleigh to be the seat of government, 562. RANGER. See Strays. RAPE. Rape, or carnally knowing any female under ten years of age, punishable with death, 192. Any person of color attempting to commit a rape on a white woman to suffer death, 590. RECEIVERS OF STOLEN GOODS. Receivers of stolen goods, &c. how punishable, 204. RECOGNIZANCE. See Fines and Forfeitures. 694 INDEX. RECORDARI AND FALSE JUDGMENT. Persons obtaining writs of recordari, or false judgment, to give security as in cases of appeals, 64. RECOVERIES. Tenants for life protected against feigned recoveries, 261. Proviso for certain recoveries by good title, 261. Certain recoveries by assent, good, 261. A termor may falsify for his term, &c., 261. Terms for years protected against recoveries, 261. Persons having lands by execution protected, 261. REFUNDING BOND. See Executors and Administrators. REGISTERS. County courts to appoint registers, who are to take oaths, and hold their offices for four years, 500. Form of register's official oath, 436. County courts to fill vacancies, and the persons appointed to hold office for four years, 500. Three justices to fill vacancies occurring between the terms of the courts, and the persons appointed to remain in office until an appointment by court, 500. The clerk shall record such appointment, 501. Registers to give bond, 50. Clerks to deliver deeds, and pay over register's fees after ten days from the rise of the court, 501. Registers, to call upon the clerks for the deeds, &c. within twenty days from the rise of the court, 501. Penalty on registers for delay in registering deeds, &c., 501. Registers, to leave deeds, &c. which they have registered, at the county court, 502. . Registers convicted of breach of duty, may be removed from office, 502. County courts may have register's books transcribed, 502. Registers, to be exempt from serving on juries, 502. For a remedy on their bonds, &c., see Official Bonds. Fees of registers, 558. "'^ REGISTRATION. See Entries and Grants, Deeds and Conveyances. RELIGION. See Religious Societies. Freedom of religious worship secured, 8. RELIGIOUS SOCIETIES AND CONGREGATIONS. All lands, &c. heretofore appropriated to any religious society, to belong to them, 503. Houses of worship, on vacant land, secured to the religious society erecting them, 503. Religious societies may choose trustees — Their power, 503. Trustees may sue and be sued, 504. Trustees to account to their respective societies, 504. Donations, &c. to religious societies confirmed, 504. Penalty for obstructing ways to places of public worship, 504. No stud horse or jackass to be brought within three hundred yards of a place of a religious congre- gation, 505. Spirituous liquors not to be brought for sale within half a mile of persons assembled for religious worship, 505. Proviso as to bringing stud horses or selling liquors, where the church, &c. is in any town, 505. Penalty for intoxication or disorderly behavior during divine service, 505. How penalties shall be recovered, 505. • When appeal is taken, duty of clerk and prosecuting attorney, 506. • REMOVAL OP CAUSES. Any cause in the superior court, either civil or criminal, may be removed on affidavit to an adjoin- ing county for trial, 171. The parties to any suit may remove the same to an adjoining county by consent, 171. Upon the removal of a cause, the clerk to send a transcript, together with the depositions, &c. filed therein, 172. Cause to be removed on affidavit not more than twice, 172. After the removal of a cause, subpcenas and commissions to take testimony, may be issued from either court, 162. Trials of slaves may be removed as in cases of free persons, 582. REMOVING DEBTORS. See Frauds and Fraudulent Conveyances. X|«C/8'. C^.tl. INDEX. 695 REPEAL OF STATUTES. Former acts on the subjects embraced in the revised statutes, and all British statutes, repealed after the first of January, 133S.. 52. Efiect of such repeal on rights accrued or suits commenced, 53. on offences committed, or penalties incurred, 53, on suits or prosecutions commenced for offences, 53. No act heretofore repealed shall be revived by such repeal, 53. The repeal of a statute shall not affect suits then pending, &c., 506. REPLEVIN. Action of replevin for slaves maintainable, in what cases, 507. Duty of clerk before issuing writ, 507. Description and value of slaves to be stated, 507. Duty of sheriff in executing the wi'it, 507. What judgment shall be rendered if plaintiff recovers, 507. the plaintiff shall have in case of his recovery, when the slave shall have been de- livered to him by the sheriff, 507. REPORTER. Judges of the supreme court to appoint a suitable person to report the decisions of the court, IS8. Duties and compensation of the reporter, 188, 549. The clerk of the supreme court shall in certain cases perform the duty of reporter — His pay there- for, 188. RETAILERS OF SPIRITUOUS LIQUORS. Retailing spirituous liquors by the small measure without a license indictable, 211. Sheriff to furnish the county attorney with a list of those having licenses to retail, to be laid before the grand jury, 211. Retailers of liquors to sell by sealed measures, 445. No ordinary keeper to give credit for liquor beyond ten dollars — Proviso, 446. Persons wishing to obtain licenses to retail liquors, how to proceed, 447. Tax on retailers of spirituous liquor, 516. REVENUE. Taxes not to be imposed without the consent of the people or their representatives, 8. Tax on real estate, 510. What real estate shall be subject to taxation, 510. > Entries of land subject to taxation, 511. Tax on real estate shall be a lien thereon, 511. Tax on turnpike roads and gates, 511. Poll tax — Proviso as to who may be exempted from poll tax, 511. Tax on stud horses and jackasses, 511. Stud horses and jackasses to be listed, 511. Tax on billiard tables — How to be given in and license obtained for keeping them, 512. Tax on pedlersby land, 512. by water, 512. Persons selling books only, not to be taxed, 513. Tax on pedlers by water on the south side of Albemarle sound, except on Roanoke and Cashie, 513. Tax to be collected, though the pedler may rent a temporary store, 513. The comptroller to issue to the sheriffs, blank licenses for pedlers, 513. No license to be issued to a pedler but on a certificate from the county court, 513. Tax on retail merchants and jewellers, 514. on wholesale and commission merchants, 514. on brokers, 514. on slaves brought from another state to this State for sale, 515. on stage players, sleight of hand performers, exhibiters of curiosities, &c., models of useful in- ventions excepted, 515. Pedlers, stage players, &c. to exhibit their licenses to any justice or constable when demanded — Penalties for refusal, 516. Duty of constables to demand a view of such licenses, 516. Tax on retailers of spirituous liquor, 516. on tavern keepers, 517. Time when the list of taxables shall be taken, 517. 696 INDEX. REVENUE, (Continued.-) County courts to appoint justices to take lists, 517. Justices to be notified of their appointment, 517. To appoint places of taking the lists, 517. Three justices may appoint one to take lists in case of vacancy, 517. How tax lists shall be given in, 517. Tax lists to refer to the first day of April preceding, 518. A person coming of age after that day may list himself and pay immediately, 518. By whom the lists of absentees, testators, minors, &c. shall be given in, 518. If owner fails to give in his lands, the justice may appoint a freeholder to value it, 618. In case of failure by the owner and justice, the sheriff to have the land valued by a freeholder — Duty of such freeholder, 518. Penally on freeholders refusing to act, 519. Valuation of lands to be in dollars and cents, 519. How town property to be given in and assessed, 5 19. A tract of land lying partly in two counties, where to be given in, 519. County court to associate with the justices appointed to take the tax lists, two freeholders, to form a board of valuation, 519. Duty of the board in assessing the value of lands, 519. Their compensation, 520. Persons failing to give in their lists, to pay a double tax, 520- Lands of a minor, &c. not to be sold for taxes, 520. Justices appointed to take the lists, to return a copy of such lists in alphabetical order to the next county court, 520. Clerks to return abstracts of the lists to the comptroller — Penalty on the clerks for failing to do so, and duty of the comptroller and attorney general in regard to such failure, 520. Form of the lists to be returned by the justices, 520. Each justice to return his own lists, 521. Penalty on justices appointed to take lists, for failure of duty, 521. County courts may grant a certificate, to be received by the comptroller, when the tax is overcharg- ed, 521. Clerks to record the tax lists, and set up copies of them in the court house, 521 . Penalty on a justice for receiving a list without an oath, 521. The clerks of the county courts to deliver to the sheriffs copies of the lists returned, 521. Sheriff to proceed to collect after first of April, 522. Penalty on the clerks for failure to deliver lists, 522. All persons employed to collect taxes must take an oath, 522. Sheriffs by themselves or their deputies, or in case of their deaths, their sureties to collect the taxes 522. Sheriffs and their sureties to have one year to collect arrears, 522. to collect a double tax from those who neglect to give in their lists, 522. Such tax, how to be ascertained, 523. Sheriffs to give notice by advertisement, when they have received their lists, 523. Penalty on sheriffs for failing to collect taxes on property not given in, 523. Sheriffs and their sureties may distrain and sell during the additional year, 523. Lands may be distrained and sold when there is no personal property, 523. When a person is about to remove, the sheriff may proceed forthwith to levy the taxes due from him, 523. Sheriff to give ten days' notice by advertisement, before he sells personal property for taxes, 524. Sheriff to advertise in some newspaper in Raleigh, and also at the court house of his county, before he sells land for taxes, 524. Sheriff to return to the county court a list of the tracts of land to be sold, which list shall be re- corded, &c., 524. ■*• To return a list of the lands sold, the name of the purchaser, &c., which shall be recorded, and a copy set up in the court house, 524. Penalty on sheriffs and clerks for failing to perform the duties enjoined in relation to selling lands for taxes, &c., 525. INDEX. 697 REVENUE, {Continued.) Sheriff 10 sell the land at public sale to him who will pay the taxes and costs for the smallest part, 525. The purchaser to choose his part in a compact bodj^, 525. Persons whose lands are sold, may redeem within twelve months, 525. Purchaser to have his lands surveyed, and the sheriff to execute a deed, 525. Penalty on the county surveyor for refusing — If he refuses, another may make the survey, 625. When the land shall be struck off to the governor for the use of the State, 526. How the deeds of the sheriff to the governor shall be perfected — Penalty on the clerks for failure of duty in this particular, 526. Sheriffs to deposit the deeds in the secretary's office, 526. Lands so bid off, to be deemed vacant, 526. Sheriff's oath with respect to such lands, 526. Sheriffs to be allowed for the taxes on land bid off for the governor, 527. Persons purchasing lands sold for taxes, liable for accruing taxes, 527. Lands to revert to the State upon the purchaser's failing to comply, 527. Where a sheriff dies or goes out of office, his successor may make a deed for lands sold for taxes, 527. What to be done by purchaser before obtaining such deed, 527. Sheriffs to settle with the comptroller, when, 527. in their settlements, to designate the different sources of the taxes, 528. Comptroller to give the sheriffs certified copies of the returns, to be deposited with the clerks, 528. Sheriffs to return upon oath to the county court a list of all taxes received from merchants, &c., 528. Such returns to be recorded and published by the clerks, 523. If such return cannot be made to court, it may be returned and filed with the clerk in vacation, 528. The clerk shall give to the sheriff a copy of the return, to be by him delivered to the com.ptroUer — Provisos, 528. Penalty on sheriffs for failing to make returns to court or to the clerk, 528. Duty of the comptroller when he suspects any sheriff of making any false return or swearing falsely, 529. Clerks, for refusing to record or to certify returns, shall be liable to indictment for a misdemeanor in office, 529. Sheriffs to render a list of persons who paid a double tax, 529. to be allowed for insolvent taxables — How to obtain such allowance, 529. List of insolvents to be advertised by the clerk, 529. Penalties on sheriffs for certain violations of duty in relation to insolvents, 530. Sheriffs' oath on settling his accounts with the comptroller, 530. Oath as to the collection of delinquent taxes — Penalty for collecting and not accounting for delin- quent taxes, 530. Sheriff's commission for collecting taxes, 530. His pay for time and expenses in making his settlement, 530. Bond to be given by sheriffs for the collection of the public taxes, 531. Clerks to furnish the comptroller with the names of the sheriffs and their sureties, 531. Penalties on clerks for failing to furnish comptroller with names of sheriffs, &c., and for failing to make certain returns, 531. Comptroller's duty when the sheriff or other accounting officer fails to settle, 531. Duty of the treasurer in taking judgment against a defaulting officer, 531. Summary judgment may be tsiken against all accounting officers, 532. How penalties on clerks, justices and sheriffs shall be recovered, 532. A summary judgment may be taken by the treasurer against any person indebted to the State, 532. Treasurer to keep an account of receipts and expenditures, COL To report to the Geii^^ Assembly at each session, 601. Committee of finance, at each session, to examine into and report the state of the treasury, 602. No grant or warrant to be paid, unless it express the cause for which it issued, 602. VOL. I. . 88 698 INDEX. REVENUE, {Continued.) Names of defaulting revenue officers to be published, 602. Monthly settlements to be made by the treasurer and comptroller— Balance in the treasury to be de- posited in the banks, 602. Duplicate certificates of deposits to be taken, 602. Treasurer may check for the money deposited, 602. Duty of the treasurer and governor when a bank is suspected of insolvency, 603. Treasurer, in all cases, to give duplicate receipts, 603. No receipt good without the comptroller's endorsement, 603. Treasurer, in certain cases, may appoint agent, 603. Treasurer may move for judgment against such agents, as against sheriffs, 604 REVERSIONS. Grantees of reversions to have the like advantages against the tenants for life or years, as the gran- tors had, 259. Tenants for life or years to have like advantages against the grantees of reversions, as they had against the grantors, 259. REVISED STATUTES. Revised statutes, when to go into operation, 49. Former acts on the subjects embraced in the revised statutes, and all British statutes, repealed after the first of January, 1838, 52. Effect of such repeal on rights accrued or suits commenced, 53 . Effect on offences committed or penalties incurred, 5 3. Effect on suits or prosecutions commenced for offences, 53. No act heretofore repealed shall be revived by such repeal, 53. Effect of the repeal on persons holding offices, 53. What acts not included in the repealing clause, 53. How the revised statutes shall be published, 53. What shall be contained in the first volume, 54. What in a second volume, 54. Number of copies to be published, 54. Copy right to be secured to the State, 54. How the copies shall be distributed and disposed of, 54. The governor to make compensation to the superintendents of publication, 55. The copies so printed to be received as evidence, 55. RICE. See Inspections and Inspectors, RIVERS AND CREEKS. County courts may appoint commissioners to examine rivers and creeks and make improvements, 533. Overseers to be appointed, and their duty, 533. Justices may direct flats, &c. to be purchased or hired, 534. Penalty for felling trees in the rivers, &c., 534. Powers of the county courts of Johnston, Wajme, &c., as to the river Neuse, 534. Duty of the county solicitors in regard to the improvement of rivers and creeks, 535. Powers of the superior court in regard to it, 535. Fees of solicitors for their services under this act, 535. County courts may lay off their rivers, &c. into districts, 535. One fourth of the river to be left open for the passage offish, 535. Penalty for erecting a stand, &c. in the part of the river required to be left open for the passage of fish, 535, 536. Penalty for setting nets across the main channel of any navigable stream, 536. To erect stand, &c. to prevent the passage of fish, indictable — Proviso as to seines, 536. Slaves violating the last section to be whipped, 536. ROADS, FERRIES AND BRIDGES. What shall be public roads and ferries, 537. County courts to settle ferries, and order the laying out public roads, 538. ., Manner in which ferries are to be settled, and. public roads to be laid ouBfeered or discontinued, 538. ^^ Appeals allowed, and proceedings thereon, 538. Directions as to how roads shall be laid out, 538. Penalty on persons for turning roads contrary to law, 539. • INDEX. 699 ROADS, FERRIES AND BRIDGES, (Continued.) Where an overseer refuses to receive a road altered or turned according to law, what proceedings may be had, 539. How persons may turn or alter roads on their own lands in certain cases, 539. County courts to appoint overseers of roads — Penalty for not serving, 540. Not to be compelled to serve more than one year in three, 540. Clerks to furnish sheriffs with orders appointing overseers, 540. Sheriffs to apply at the clerk's office for the same, and to serve the overseers with copies, 540. Penalty on clerks and sheriffs for failing, 540. Overseers to summon the hands liable to work on public roads, 540. What persons are liable, 540. Overseers competent to prove notice to hands, 541. No person, liable to work on public roads, to be exempt, unless exempted by the coimty court, 541. Overseers may lay off their roads into equal parts among their hands, 541. Of what width public roads and causeways shall be, 541. Overseers may cut poles and timber and dig earth on any adjoining lands, 541. Owners of such lands may petition the county court for indemnification, 542. Overseers to make footways over swamps and runs of water, where the county court may direct, 542. Overseers to set up sign posts at the forks of roads, 542. Penalty on overseers for not setting up, and upon persons for removing, &c. sign boards, 542. Overseers to measure the roads within their districts, and set up mile posts, 542. Penalty on overseers for neglect of duty, or not keeping roads in repair, 543. Penalty on persons for erecting bars across any public road, 543. County courts may cause bridges to be erected across streams, where necessary, at the expense of the county, 343. Contracts, made by the justices, for building bridges, to be binding on them and their successors, 543. Owners of water mills, situate on public roads, to keep up bridges connected with their mill dams, 543. Penalty on owners of water mills for failing to keep up bridges, 543- County courts may authorize the building of toll bridges, 544. County courts to regulate the rates of ferriage, 544. Owners of ferries may build toll bridges at their ferries, 544. County courts may compel keepers of ferries and owners of toll bridges to give bond, &c , 544. How persons injured may proceed to recover on such bonds, 545. Penalty on persons not empowered, for keeping a ferry, or transporting persons within ten miles of any ferry for pay — Proviso for persons contracting to carry the mail, 545. Keepers of public ferries to keep up a house of entertainment at their ferries, 545. Penalty for fastening a vessel to a float bridge, 546. In what cases the county courts may order the laying out of cart ways — Proceedings for such pur- pose, 446. Persons, across whose lands cart ways are laid out, may erect bars or gates across the same, 546. Cart ways to be free for all persons to pass, 546. Appeals allowed from orders to lay out cartways, 547. County courts may authorize the erection of gates across public roads, 547. How a person, desirous of erecting a gate across a public road, shall proceed to obtain an order for that purpose — Appeal allowed, 547. Gates to be subject to tax, 547. Forfeitures, how to be recovered and applied, 547. Ferrymen employed on any ferry of a public road to be exempt from militia duty, 395. Officers and privates attending musters and reviews not to pay toll or ferriage for crossing any bridge or ferry, 404. Constables exempt from working on roads, 11(3. Keepers of public mills to be exempt from working on roads, 424. Tax on turnpikeM^s and gates, 511. Overseers of roads not to order out hands on days of muster, 402. ROBBERY. Benefit of clergy taken away from highway robbery, 191. 700 INDEX. ROBBERY, (Continued.) Robbery may be committed in taking bank notes, 195. ROPE AND WIRE DANCERS. See Revenue. RUNAWAYS. Harboring runaway slaves subject to a penalty, and also indictable, 209. Reward for taking up runaway slaves, 575. Runaways to be committed to jail in certain cases, and notice to be given, 575. Duty of a justice when a runaway is brought before him— And also of the constable to whom such j runaway is committed, 575. f Penalty on any sheriff, &c. for employing the runaway, or keeping him longer than the law directs, or for suffering him to escape, 576. Keepers of ferries to give passage to constables, &c. conveying runaways, 576. Notice to be given by the jailer, in certain cases, in the State Gazette, 576. Runaway slaves may be sold, in certain cases, by order of the county court, 576. Sheriff's commissions on such sale, 577. Sheriff to give a bill of sale, 577. Proceeds of such sale, how appropriated, 577. Owner may recover the money on petition, 577. The county to pay the expenses of runaways in certain cases, \vhich shall be recovered of the owner when he becomes known, 577. Runaways maybe outlawed in certain cases, 557. Three justices may order out the militia to suppress outlawed or runaway slaves, 418. SABBATH. No person to do any work on the sabbath under the penalty of one dollar, 607. Power of justices as to this offence, 608. Within what time it must be prosecuted, 608. Process in civil cases not to be executed on the sabbath, 155 SALARIES AND PEES. Salaries of the governor, judges of the supreme court, secretary of state, treasurer, comptroller, pri- vate secretary to the governor, and clerk in the treasury department, 548. When paid, 549. Salary of the adjutant general, 549. of the judges of the superior courts, 549. Salaries of the attorney general and solicitors, 649. Salary of the reporter of the decisions of the supreme court, 549. of the clerk of the supreme court, 549. Pay of the councillors of state, 550. of the clerk and doorkeeper of the council, 550. of the members of the General Assembly, 550. of the clerks and officers of the General Assembly, 550. of the members and officers of the General Assembly, how ascertained, certified and paid, 550. Fees of the governor's private secretary, 551. of the secretary of state, 551. of the attorney general and solicitors for the State, 551. of the county solicitors, 552, of attorneys at law, 552. of clerks of the county courts, 552. of the clerks of the superior court, 554. Clerks to have no fee on a capias in certain cases, 554. In certain state cases, clerks and sheriffs to have only half fees, 554. Fees of sheriffs, 554. Sheriff to have additional fee for executing process out of his county, 156. Sheriffs not allowed commissions upon a justice's execution, 556. Clerks of the superior and county courts to keep a copy of the clerks' and sheriffs' fees posted up in their offices, 556. ,, Clerks of courts may issue execution for fees in certain cases— Bill of co^s to be annealed, 556. Fees of the clerk of the supreme court, 556. of clerk and masters in equity, 656. INDEX. 701 SALARIES AND FEES, (Continued.) Compensation of county trustees, 557. Fees of coroners, 557. of constables, 557. of registers, 558. of entry takers, 558. of county surveyors, 558. of rangers, 558. of commissioners of affidavits, 559. . of processioners, 559. of standard keepers, 559. of jailers, 559. of inspectors, 559. of tobacco pickers, 560. Fee bills to be made out in dollars and cents — Receipts to be given in the same, 560. Fees due clerks, sheriffs, &c. must be collected within three years, 374. Compensation to the president and members of the board of internal improvement, 350. of the president and directors of the literary fund, 384. For sherifPs compensation for holding elections in any case, see Elections. SCIRE FACIAS. See Fines and Forfeitures. The return of a sheriff on a scire fadas that he has executed the same, sufficient evidence of the service, 173. SEALS. Governor to procure a seal for the State, to be called the Great Seal of State of North Carolina, 303. Also a seal for each court of record, 303. Governor may procure new seals when necessary, 303. How the seals are to be prepared, 303. Expense of seals, how paid, 303. Seals to be delivered to the proper officers, who are to receipt for the same, 303. When a seal to a grant, &c. is lost or destroyed, how such instrument may be resealed, 254, 304. SEAMEN. An account of the number of officers, &c. to be rendered by masters of vessels, and thirty cents per month paid on each, 560, 561. Coasting vessels subject to like regulations, &c., 561. Penalty on masters for failing to render account, &c., 561. Collector to pay the money to the president and directors of the Wilmington Marine Hospital Asso- ciation, 561. Money, how to be appropriated, 561. When to be in force, 561. Confirmed by an act of congress, and declared to be now in force, 561. SEAT OF GOVERNMENT. City of Raleigh to be the seat of government, 562. SECRETARY OF STATE. Bond to be given, 563. Bond to be deposited with the treasurer, 563. Oaths to be taken, 563. Form of secretary's official oath, 433. Remedy on the bond, 563. Secretary to take receipts for grants, 563. May send grants by mail, 564. Office hours, 564. Compensation to the secretary as librarian, and for certain other services, 564. The journals of the two houses of the General Assembly to be deposited in the office of secretary of state, who shall certify copies thereof, when required, 301. For duty of the secretary of state in regard to the public printing, see Public Printing: Salary of the secretary of state, what and when to be paid, 548, 549. Fees of the secretary of state. 551. For duty of the secretary of state in relation to entries and grants, see Entries and Grants. *702 INDEX. ( SEDITIOUS PUBLICATIONS OR SPEECHES. Circulating seditious jrablications among slaves, how punishable, 194. Endeavoring to excite insurrection among slaves by words, how punishable, 194. SENATORS IN CONGRESS. See Members of Cov^ress. SET-OFF. Defendant may prove a set-off under the book debt law, 98. Defendant may, in certain cases, plead a set-off, or give it in evidence under the general issue upon notice to the plaintiff, 164. SHERIFF. Sheriff, how elected, 563, When election to be held, and how returns to be made, 565. Persons having the greatest number of votes, to be declared elected, 565. If two or more have an equal number, county court to choose between them, 565. When the returns shall be made, 565. Election to be held every two years, 566. County court to decide contested elections, 566. Who shall be ineligible to the office of sheriff, 566. No sheriff shall be capable of being re-elected, who has failed to settle for public dues, 566. Sheriff elect to give bonds and take oaths before entering upon the duties of his office, 566. Form of sheriff's official oath, 435. Sheriff to renew his bonds annually, 566. --=>„„. Justices to meet on the second and third day of the court after an elaction, to take the sheriff 's bonds, 567. How sheriff may be removed from office, 567. Duty of the coroner, and of the county court, in such case, 567. Coroner to give bonds and take oaths when required to act as sheriff, 567. Form of the bond to be given by the sheriff for the faithful discharge of his duty in office, 567. Sheriff to take oaths, 568. Sheriff's sureties liable for fines and amercements, 568. Sheriff not compelled to serve more than two years, 568. May resign his office to the county court, 568. Penalty on person elected sheriff for refusing to accept — Proviso where he is unable to give secu- rity, 568. Who not compellable to serve as sheriff, 568. Sheriff to execute all process from courts — Penalty for neglect, 568. to take no obligation, from any person in his custody, but such as is payable to himself, &c., 569. permitting an escape in civil cases, to be liable to an action of debt, 569. not to farm his office, 569. to have the custody of the public jail, 569. and his sureties to be liable for claims put into his hands for collection, 569. The slieriff of Wake county shall attend the supreme court, 189. Sheriffs to account for and pay over moneys remaining in their hands for three years in like manner as clerks, &c., 428. Suits on the official bonds of sheriffs, &c. may be brought by the party injured, 443. Declaration must shew in whose behalf the suit is brought, 443. Person injured may at his election sue the officer in an action on the case, 443. Remedy before a justice of the peace against sheriffs and other officers who neglect to pay over moneys received within the jurisdiction of a justice, 443. Summary remedy in court against sheriffs and other officers failing to pay moneys received, 443. Twelve per cent, damages allowed on money unlawfully detained by an officer, 444. Clerks of the county court to record the names of the justices present when appointments are made, 444. Such justices failing to take bond, are to be held securities themselves, 444. Copy of the record to be evidence against them, 444. Sheriff's bond for the collection of the county and poor taxes, 123. His bond for the collection of the state taxes, 531. Pees of sheriffs, 156, 554. In certain cases sheriffs to have only half fees, 554. INDEX. 703 SHERIFFS, (Continued.) Sheriffs not allowed commissions on a justice's execution, 556. For sheriff's duty in regard to bail in civil cases, see Bail in Civil Cases. powers and duty in collecting and accounting for the county taxes, fines and forfeit- ures, see County Revenue and Charges. duty in serving and returning process from courts, see Courts, County and Superior, Courts of Equity, Court, Supreme, Execution. duty in arresting felons, and in executing and returning process in criminal cases, see Criminal Proceedings. duty, powers and compensation for holding elections, see Elections. Property, debts, &c. contained in any schedule filed by an insolvent debtor to vest in the sheriff, 327. Duty of the sheriff thereupon, 327. Suits on sheriff's bonds must be brought within six years, 374. For sheriff's duties and liabilities in collecting and accounting for the poor tax, see Poor. duty in connection with prisons and prisoners, see Court Houses, Prisons and Stocks, Prisojiers. duties and liabilities and compensation in collecting and accounting for the public or state taxes, see Revenue. Sheriffs to apply for orders appointing overseers of roads and to serve the overseers with copies, 540. SHINGLES. See Inspections and Inspectors. SLANDER. If damages are under four dollars, plaintiff shall recover no more costs than damages, 164. What words spoken of women shall be actionable, 570. SLAVES AND FREE PERSONS OF COLOR. Negroes, mulattoes, or persons of color, imported contrary to act of congress, to he sold for the use of the State, 573. Sheriff's duty in seizing and selling, 573. when such negroes, &c. abscond, 573. Persons giving notice of such negroes, &c. to have one fifth of their value, 573. Sales to be made at the court house and sheriff to give hills of sale, 574. Sheriff's commissions, &c. for making such sales, 574, Certain former purchases confirmed, 574. The issue of negroes, &c. imported, included in the foregoing provisions, 575. Penalty for bringing slaves from certain states, 575. "^-lleward for taking up runaways, 575. Runaways to be committed to jail in certain cases, and notice to be given, 575. Duty of a justice when a runaway is brought before him — And also of the constable to whom such runaway may be committed, 575. Pen ..ty on any sheriff, &c. for employing the runaway, or keeping him longer than this act directs, or for suffering him to escape, 576. Keepers of ferries to give passage to constables, &c. conveying runaways, 576. Notice to be given by the jailer, in certain cases, in the State Gazette, 576. Runaw v/ slaves may be sold, in certain cases, by order of the county court, 576. Sheriff'-, commissions on such sale, 577, Sheriff to give a bill of sale, 577. Proceeds of such sale, how appropriated, 577. Owner may recover the money on petition, 577. The county to pay the expenses of runaways in certain cases, 577. Such expenses to be recovered of the owner when he becomes known, 577. Slaves offering forged free passes, to be whipped, 577. Runaway slaves may be outlawed in certain cases, 577. ♦- Slaves not to go armed, nor hunt with a gun, 578. not to go off their master's plantation without a written permit, 57S. 1 not to raise stock, 578 . Owners of slaves, not properly feeding them, &c, to be liable for their stealing corn, &c., 578. • Slaves not to teach each other to read, &c., 573. ,., not to sell spirituous liquors, 578. 704 INDEX. ^ SLAVES AND FREE PERSONS OF COLOR, (Continued.) Slaves not to play at any game for money, &c., 580. j \ ' Penalty on slaves for burning the woods, 579. '"^ i^-w-a^-'U-^ Slaves not to be allowed to hire their own time — Proceedings in such cases, 579. not to go at large as freemen, 580. Negroes, &c. not to meet for the purpose of dancing, &c. without a written permit, 580. Slaves, &c. not to preach in public, 580. Conspiracy of slaves, how punishable, 580. Insurrectian of slaves, how punishable, 580. Free persons joining conspiracy, &c. of slaves, how punishable, 531. What evidence shall be received in cases of insurrection, &c., 581. Slaves convicted of conspiracy, &c. to suffer death or be transported, 581. Slaves returning voluntarily from transportation, to suffer death — If brought by their owner, &c. to be forfeited, 581. Slaves, for trivial offences, to be tried before a justice of the peace, 581. What jurisdiction the county court shall have over offences committed by slaves, 582. Jurisdiction of the superior court over offences committed by slaves, 582. I,' Trials of slaves may be removed as in cases of free persons, 582. Slaves shall be entitled to a trial by jury when tried in court, 582. for capital offences, to be tried on presentment or indictment, and be allowed challenges of jurors, 582, 583. '""*'-* — allowed the benefit of clergy, 583. Owner of slave to have notice of the trial in certain cases, 583. to pay the costs of such trial, &c., 583. Where the owner cannot be found, the court shall appoint counsel for slaves, 583. Against and for whom slaves and other persons of color may be witnesses, 583. Court to give a charge to a negro, &c. examined as a witness, 584. Negro, &c. committing perjury, to be punished as a free man, 584. In eases of insurrection, &c. a commission of oyer and terminer may issuej 584. Compensation to the prosecuting officer in such case, 584. Appeal allowed from such court of oyer and terminer to the supreme court, 584. Judge may, in certain cases, continue the cause to the regular term of the superior court, 584. I. \ How slaves may be emancipated, 585. I Owner to give bond conditioned for slaves leaving the State, &c., 585. •■ Emancipated slaves to leave the State in ninety days, 585. v How slaves may be emancipated when directed^so to be done by will, 585. ^'Slaves over fifty years of age tnay be emancipated for meritorious services, 586. Emancipated slaves, not leaving the State, or returning, to be arrested and sold, 586. In such case, suit may also be brought upon the bond given by the owner, 586. Grand jury to present all slaves violating this act, 587. No slave to be set free but according to this act, 587. \^. Free negroes, &c. not to migrate into this State, 587. Penalty for coming into the State and not leaving after twenty days' notice, 587. How to proceed against free negroes, &c. coming into this State, 537. After term of service, to remove under like penalties, 588. Penalty on persons bringing free negroes, &c. into this State, 588. Vagabond free negroes, &c. how to be dealt with, 588. Money arising from the hire of free negroes, &c. to be paid to the county trustee, 588. County court may bind out the children of free negroes, &c. in certain cases, 589. Persons to whom free negroes, &c. are hired, to feed them, &c., and not to remove them from the county, 589. Free negroes, &c. charged with migrating into this State, &c., to be tried by a jury, 589. Who shall beideemed free negroes, 589. Grand juries to be charged and to make presentment of the offences of free negroes, &c. coming into this State, 589. Free negroes. &c. migrating from this State, and being absent ninety days, not to be permitted to return, 590. Free negroes not to intermarry with slaves, 590. Any person of color attempting to commit a rape on a white woman to suffer death, 590. J INDEX. 705 SLAVES AND FREE PERSONS OP COLOR, {Continued.) Free negroes, &c. not to gamble with slaves, 590. not to suffer slaves to gamble in their houses, 590. not to entertain slaves in their houses at certain times, 591. Slaves not to trade with each other for certain articles, 591. Free negroes, &c. not to trade with slaves for certain articles, 591. Appeals allowed in cases of slaves charged with trading with each other, and free negroes charged with trading with slaves, 591. Free negroes, &c. not to hawk or peddle without a license, 591. Fines on free persons of color, how to be enforced, 591. How such free persons of color shall be hired out, 592. •Tersons hiring them, to have the same authorities, and be under the same liabilities, as masters of apprentices, 592. Further provisions in cases of hiring out free persons of color for fines, &c,, 592. — v,-Killing a slave homicide, as at common law, 192. _ V- Stealing slaves punishable with death, 192. — s.^ Concealing, &c. a slave with intent to remove him out of the State, punishable with death, 192. — . v' Taking a free person of color from this State to another with intent to sell him, punishable with death, 193. Circulating seditious publications among slaves, how punishable, 194. Endeavoring to excite insurrection among slaves by words, how punishable, 194. v^ersons stealing or selling free negroes in this State, how punishable, 208. The clerk who issues a license for the marriage of a free negro, &c. with a white person, and the justice, &c. who marries such persons, shall be subject to indictment, 208. Persons harboring runaway slaves, how punishable, 209. Teaching slaves to read or write, the use of figures excepted, indictable, 209. "-^Penalty for trading with slaves for certain articles, 209. ^Proviso that such trading may be in the day time, and -with the written permit of the master, &c. of such slaves, 210. '^his proviso not to extend to spirituous liquors, fire arms, powder, shot, or lead, 210. Penalty on masters of vessels for entertaining slaves and free persons of color on board their vessels at certain times, without a written permit, 210. Trading with slaves to be indictable, 210. ^'-'''^hat circumstances shall be taken as presumptive evidence of such trading, against the owners of stores and shops, 210. Penalty for fraudulently giving a slave a written permit to trade, 211. Appeals allowed in case of prosecutions or indictment for trading with slaves, 211. v^ifts of slaves must be in writing, attested and registered, 230. Proviso as to advancements to children, 230. All sales of slaves must be in writing, attested and registered except bona fide sales accompanied with a transfer of possession, 230. All written transfers of slaves must be registered in the county where the purchaser resides, unless the seller is to retain possession, 231. to be proved on any trial by the subscribing witness if to be found, 231. Certain limitations of slaves by deed to be valid, 231. Penalty on slaves for killing stock in certain cases, 284. Contracts for the sale of land and slaves must be in writing. &c-, 290. ^^ Adverse possession of a slave for three years to give title — Proviso, as to parol gifts, 376. • White persons prohibited from marrying Indians or persons of color, 386. Penalty on ministers and justices for marrying a white person to an Indian or person of color, 387. Wardens to provide for infirm slaves neglected by their owners and may recover from the owners — Owners to have previous notice, 475. ■» ■ Executors, administrators and guardians liable to the wardens if they neglect to provide for slaves under their care, 476. Duty of the wardens when the owner lives in another county, 476. Two wardens may act in the case of such slave, 476. Power of the wardens when a person having infirm slaves is about to remove out of the county, 47C. VOL. I. 89 \ 706 INDEX. SLAVES AND FREE PERSONS OF COLOR, (Continued.) Tax on slaves brought from another state to this State for sale, 515. ^ How and where sales of land and slaves under execution shall be made, 267. Free persons of color not to be enrolled in the militia except as musicians, 395. No slave to act as pilot over any bar, 470. SLEIGHT OF HAND PERFORMERS. See Revenue. SOLICITORS. See Attorney General and Solicitors. STAGE PLAYERS. See Revenue. STANDARD KEEPER. See Weights and Measures. STANDING MUTE. Plea to be entered for a defendant when he stands mute on a criminal charge, 218. STATE HOUSE. See Public Buildings. STAVES. See Inspections and Iiispectors. STOCKS. See Court Houses, Prisons and Stocks. STOLEN GOODS. Receivers of stolen goods, how punishable, 219. On conviction of a felon for robbing or stealing goods, &c. the goods shall be restored, 219. STRAYS. County courts to appoint one or more rangers for each county, 593. Form of ranger's oath, 437. Information of strays to be made to rangers, 593. Oath of valuers of strays, 440. Stray to be valued, 594. Rangers to keep a book, 594. To advertise strays, 594. Reward to the taker up, 594. Property not proved, to belong to the taker up after twelve months — May be reclaimed, 594. How expense of keeping strays shall be ascertained, 59i. When the stray is not claimed within twelve months, two thirds of the appraised value is to be paid to the county trustee, 595. How owner may reclaim the two thirds, 595. Taker up to give bond, when the value of the stray exceeds four dollars, 595. Taker up not answerable for the death of the stray, 595. None but freeholders shall take up strays, 595. Rangers authorized to administer oaths, 596. Rangers to make returns to the county court, 596. Ranger's books to be open for public inspection, 596. County trustee to collect moneys accruing under this act, 596. Penalty on rangers for not paying over moneys, 596. Duty of the taker up, when the stray dies or is reclaimed, 597. How the penalties imder this act shall be recovered, 597. Fees of rangers, 558. STUD HORSES AND JACKASSES. See Revenue, Religious Societies. ' SUICIDE. Forfeiture for suicide abolished, 197. SUITS. See Courts, County and Superior. Tax on suits at law, 124. On suits in equity, 124. SiTtlETY AND PRINCIPAL. Endorsers of bills, Ijonds and promissory notes to be liable as sureties, 95. Defendants upon trial may show that they are sureties, and the jury or justice shall discriminate the principal from the sureties, 173. In such case the officer shall levy first on the property of the principal, and the property of the principal shall be first sold, 173. Summary remedy for sureties against their principals, 597. One siu-ety may sue his co-surety for a ratable proportion of the debt paid for the principal, 598. In judgments before a justice, the surety may dissent from the stay of execution, and then shall not be liable to the surety for the stay, 598. Officer, how to collect in such cases, 598. INDEX. 707 SURETY AND PRINCIPAL, (Continued.) Surety paying a debt, shall have the same priority as his creditor against executors and administra- tors, 598. Relief for sureties of executors and administrators in the county courts, 280. Power of the superior court in such cases, 280. Remedy for sureties of guardians when such sureties are likely to suiTer^ 312. SURPLUS REVENUE OF THE UNITED STATES. See Internal Improvements, Literary Fund. SURVEYS AND SURVEYORS. In suits involving questions of boundary, the court may order a survey — Proceedings thereupon, 172. Appointment of surveyors, 249. Surveyors to give bonds and take oaths, 250. Form of surveyor's oath, 437. Surveyors may appoint deputies, 250. How surveys or entries to be made and returned, 251. Surveys to be according to priority of entry, 251. How surveyors to have surveys made for themselves, 252. Certain grants, heretofore issued to surveyors, confirmed, 254. How to correct mistakes made by surveyors and other officers in perfecting titles to land upon entries, 254. Fees of county surveyors, 558. Copies of plats of survey from the secretary's office may be read as evidence, 263. For remedy on the bonds of surveyors, see Official Bonds. Purchaser of land sold for taxes, to have his land surveyed, 525 . Penalty on the county surveyor for refusing — If he refuses, another may make the survey, 525. Fees of county surveyors, 558. SWAMP LANDS. See Literary Fund. TAR. See Inspections and Inspectors. TAVERNS. See Ordinaries. TAXES. See Revenue, County Revenue and Charges. TOBACCO. See Inspections and Inspectors. TOLL BRIDGES. See Roads, Ferries and Bridges. TOWNS. Owners of lots to have further time to complete buildings, 599. Commissioners of towns may lay a tax on dogs, 599. Penalty for failing to give them in, 599. Commissioners of towns to publish a list of taxes — Penalty for failure, 599. The police authorities of a town may petition for, and receive arms upon giving bonds, 485. Commissioners of seaport towns to have, in certain cases, the authority of commissioners of naviga- tion, 496. What shall be considered nuisances in the seaport towns, 496. Owners of lots in seaport towns to keep them drained at certain seasons, 496. Penalty for neglect, 497. Commissioners may remove the nuisance at the expense of the owner, 497. Officers of police in incorporated towns, to adopt measures for preventing contagious diseases, 497. TREASURER OF PUBLIC BUILDINGS. To be appointed by the county court, who are also to fill vacancies— To give bond — His duty 133. * ' To settle liis accounts annually with the court, 133. Penalty for failure, 134. His duty as to repairs, &c. of public buildings, 134. TREASURER OF THE STATE. Treasurer to be biennially elected, 600. Oaths to be taken and bond given, 600. Form of the treasurer's official oath, 433. On failure to give bond, another to be elected, 601. 708 INDEX. TREASURER OP THE STATE, (Continued.) If the failure occur during the recess, governor and council to appoint, 601. How judgment may be entered on the bond, 601. Treasurer to keep an account of receipts and expenditures, 602. To report to the General Assembly at each session, 601. Committee of finance, at each session, to examine into and report the state of the treasury, 602. No grant or warrant to be paid, unless it express the cause for which it issued, 602. No warrant to be paid by the treasurer, unless first entered in the comptroller's office and cer- tified by him, 113. Names of defaulting revenue ofljcers to be published, 602. Monthly settlements to be made by the treasurer and comptroller, 602. Balance in the treasury to be deposited in the banks, 602. Duplicate certificates of deposits to be taken, 602. Treasurer may check for the money deposited, 602. Duty of the treasurer and governor, when a bank is suspected of insolvency, 603. Treasurer, in all cases, to give a duplicate receipt, 603. No receipt good without the comptroller's endorsement, 603. Accounts of the literary and internal improvement funds to pass through comptroller's office, 603. Certificates of stock belonging to the State, to be registered and endorsed by the secretary of state, 603. Comptroller to endorse them, when allowed as a credit to the treasurer, 603. Copy of certificate from the secretary's office to be good, when the original is lost, 603. Treasurer, in certain cases, may appoint agents, 603. may move for judgment against such agents, as against sheriffs, 604. may employ a clerk, 604. Office hours, 604, Penalty for failing to proceed against delinquents, 604. Proceedings against the treasurer for defalcation, 604. Priority of the State in case of the death or insolvency of the treasurer, 604. Fraud in the treasurer, how punished, 605. Salary of the treasurer, what and when to be paid, 548, 549. of the clerk of the treasury department, what and when to be paid, 549. Treasurer may have blanks, tfec. printed for the use of his office, at the expense of the State, 491. For treasurer's duty in regard to auctions and auctioneers, see Auctions and Auctioneers. Duty of the treasurer in taking judgment against a defaulting officer, 531. Summary judgment may be taken, at the instance of the treasurer, against all defaulting officers, 532. A summary judgment may betaken by the treasurer against persons indebted to the State, 532. For duty of the treasurer in relation to entries and grants, see Entries and Grants. TRESPASS. See Fences. When actions of trespass vi et armis, or on the case, for injuries to real or personal property shall not abate, 57. In trespass for assault and battery, if the damages be assessed under four dollars, plaintiff shall not recover more costs than damages, 164. In trespass quare clauswn /regit ^ the defendant may disclaim, and plead tender, &c., 164. In actions of trespass, &c. if there be more than one defendant, and one or more be acquitted, the person so acquitted shall recover full costs unless the judge certifies, &,c., 164. Limitations to actions of trespass, &c., 372,373. TRUST. See Mortgages and Deeds in Trust. Executions may be levied upon goods, lands, &c. held in trust for the person against whom the exe- cution issued, 266. Purchaser under such execution to hold the property discharged of the trust, 266. TRUSTEES. See Infants, Religious Societies. TUMBLERS. See Revenue. TURPENTINE. See Inspections and Inspectors. INDEX. 709 UNIVERSITY. Merchants, &c. not to sell goods, &c. to students of the university, without the consent of faculty, 605. No license to retail spirituous liquors at Chapel Hill shall be granted, 606. Electioneering treats, also prohibited, 606. Theatrical performances, &c. at Chapel Hill, or -within five miles thereof, prohibited, 606. Billiard tables, also prohibited, 606. Persons ofiending against these provisions, to be indicted, 606. Estate remaining seven years unclaimed in the hands of executors, &c. to be paid over to the trus- tees of the university, 277. Trustees of the university liable in like manner as heirs or devisees for the lands of a deceased debt- or in their hands, 366. USES. In conveyances to uses, the possession shall be transferred without livery of seizin, 259. USURY. Not more than six per centum to be taken for interest, 606. All contracts, assurances, &c. for more than lawful interest, void, 606. Persons taking more, to forfeit double the value, 607. VAGRANTS. Vagrants, how punishable, i20I. VESSEL. See Pilots and Commissioners of Navigation. Penalty for fastening a vessel to a float bridge, 546. VICE AND IMMORALITY. No person to do any work on the Sabbath, under penalty of one dollar, 607. Penalty on persons for profanely swearing in the hearing of a justice, 608. A public officer to pay double, 608. Penalty for profanely swearing in a court of record, 603. Penalty for getting drunk, 608. Power of justices as to offences under this act, 608. Proviso as to time within which offences must be prosecuted, 608. Fines, how appropriated, 608. Penalty for committing fornication, 609. WARDENS OF THE POOR. See Poor. WARRANTS. See Justices. WARRANTY. What warranties shall be void, 260. WASTE. Who entitled to the action for waste, and against whom, 609. If tenant for life aliens, he is still liable, 609. y Plaintiff shall recover treble damages, and the place wasted, 609. Action will lie by one joint tenant, &c. against his co-tenant, 610. Heirs shall have the action, 610. WEIGHTS AND MEASURES. What weights aud measures to be used, 610. Justices to procure weights and measures — Also brands and stamps, 610. Standard keeper to be appointed, 610. His oath and bond, 611. Form of standard keeper's oath, 436. Weights and measures to be carried to the standard keeper, by the persons using them, once in two years, to be tried, 611. Standard keeper to give certificates, 611. Penalty for not having weights and measures examined, 611. Penalty for selling or buying by weights or measures not branded or stamped, 611. What shall be the measure of an acre of land, 611. Fees of standard keeper, 559. WIDOWS. In what case the widow shall take as heir, 237. 710 INDEX. WIDOWS, {Continued.) Widows may dissent from the will of their husbands, and upon doing so, or in cases of intestacy, shall have one third of the lands of which their husbands died seized and possessed assigned to them for life as dower, 612. Proviso, that fraudulent conveyances shall not defeat dower, 613. Dower to include the dwelling house, &c., 613. Widows to petition for dower, and the proceedings thereon, 613. Jury not restricted to assign dower in each separate tract, 613. Proceedings on petition for dower to be in a simimary way, 614. Duty of the jury in laying off dower, when the widow has dissented from her husband's will, 614. Widows to be endowed of equities of redemption or other equitable or trust estates, 614. How widows shall proceed who maybe entitled to dower in this State, and also in other states, 614. Dower not to be subject to the deceased husband's debts, 615. Widows may bequeath the crops growing on their dower lands, 615. Alienation by widows of their dower lands, with or without warranty, to pass nothing but the dower interest, 615. If a wife leave her husband, and go off with an adulterer, she shall lose her dower, 615. To what share of the personal estate a widow shall be entitled in case of her husband's intes- tacy, 615. How the widow's share of the personal estate shall be allotted to her when she dissents from her husband's will, 615. Widow, in relation to creditors, shall be considered a legatee, 615. Provision for widows of intestates dying and leaving no kindred that are known, 616. Widow to give bond to refund in case any of the next of kin should appear, 616. Widows of intestates may take possession of the whole personal estate till administration be granted, 616. Widow may petition the county court for year's provisions— How the same shall be allotted to her, 617. Where there is no crop, &c. on hand the value of the year's provisions must be assessed in money, or specific articles of personal property be assigned to her, 617. The crop, stock, &c. allotted to the widow, shall be vested in her for the use of herself and fam- ily, 617. The administrator shall not be accountable for the same as assets, 618. Widow to have certain articles in addition to her year's provisions, 618. Widows, dissenting from their husband's will, to be entitled to a year's provisions, 618. The costs of the petition for a year's provision to be paid by the administrator out of the assets of the estate — Proviso, 618. Where, upon a petition for the sale of land for partition, there is dower on the land, the court may decree a sale, and apportion the dower interest, 453. WILLS AND TESTAMENTS. What shall be a good will of lands, 619. What a good nuncupative vv^ill, where the estate exceeds two hundred dollars, 620. How a nuncupative will shall be proved, G20. The county court shall have jurisdiction of the probate of wills, 621. Appeal allowed, 621. SV here and how wills shall be proved, 621. How a will, made in another state, disposing of property in this State, may be proved, 621. Wills to be filed in the clerk's ofiice, 621. Probates of wills evidence of the devise of real estate, and copies may be received as originals, 621. Devises construed to be in fee simple, unless the contrary plainly appears, 622. Construction of a limitation upon dying without issue, 259, 622. How a written will of lands may be revoked, 622. How a will of personal property, of greater value than two hundred dollars, may be revoked, 622. Of the value of two hundred dollars or less, 623. No person, under eighte^ years, can make a will of chattels, 623. , A devise to a child shall vest in his children, if he die before the testator, 623. Children, born after the making of their parent's will, may petition for a provision, 623. Court to decree a share of the personal estate, and appoint commissioners to allot a share of the real, 623. ^ INDEX. 711 WILLS AND TESTAMENTS, (Continued.) Commissioners' duty in making the allotment, 624. Legatees to contribute proportionally, 624. What decree the court may make on the return of the commissioners, 624. After a decree, the petitioners to be deemed legatees and devisees, 624. If no petition filed by an after-born child within two years, executors to file a bill or petition of inter- pleader, 625. Guardian to be appointed by the court, if the infant have none, 625. Petition to be a lien on the lands devised, 625. Devise may be made of an estate held for the life of another, 625. Such estate, when not devised, shall be assets in the hands of the heir of the tenant for life, if he take it by special occupancy, 366, 625. Certified copies of wills or deeds from other states to be received as evidence, 263. When some executors refuse, those accepting the trust, or administrators with the will annexed, may sell lands according to the will, 281. WILMINGTON MARINE HOSPITAL ASSOCIATION. See Seamen. WITNESSES. SubpcEna for witnesses, how to issue, 160. Subpoena returnable immediately, when to issue, 160. How subpoenas may be served, 160. Witnesses to attend from term to term till discharged, 160. Penalty on witnesses for non-attendance, 160. Witnesses shall be entitled to pay, if they attend after the suit is settled in vacation, unless notified, t^ 160. ■^ Witnesses swearing falsely to obtain a ticket, guilty of perjury, 161. ^ How witnesses shall be exonerated from forfeiture and costs for non-attendance, 161. In what cases depositions of witnesses may be taken, 161. ^ Clerk to pass upon all depositions, 161. vX Notice to be given to the adverse party of the time and place of taking depositions, 161. ^v. Under what circumstances depositions of witnesses may be taken before the cause is put to issue, ^ 162. In such cases notice to be given, &c., 162. Witnesses refusing to give testimony in court or before commissioners, to be committed, 162. Witnesses, during their attendance to be exempt from the service of all civil process except subpcE- nas, 162. Pay of witnesses for their attendance, 162. After the removal of a cause, subposnas and commissions to take testimony may be issued from either court, 162. Witnesses to prove their attendance at each court, 1 63. How they may recover pay for their attendance, 163. Witness tickets to be filed with the clerk to be taxed in the bill of costs, 163. Party cast to pay for but two witnesses to prove the same fact, 163. Subpoenas for witnesses to attend commissioners, &c. how to be issued, 163. Pay of witnesses for attending commissioners, &c., 163. Testimony of colored persons incompetent against white persons — Admissible against each other, 163. In what cases a subpmna duces tecum may issue, 165. Pay of witnesses in state cases, and how they shall be paid, 220. Witnesses to attend and give evidence in contested elections — Penalty for failing, 300. Pay of witnesses for attending in such cases, 301. Justice, in cases within his jurisdiction, to direct witnesses to be summoned, which shall be done by the oflicer, 358. Penalty on witnesses for not attending, 358. Forms of oaths to be taken by witness in certain cases, 433. WOMEN. No female shall be taken or imprisoned for debt, 155, 328. Women entitled to benefit of clergy, 197. What words spoken of women shall be actionable, 570. 712 INDEX. WOODS. See Burning- Woods. WRITS OF ERROR. Superior courts may grant writs of error — Proceedings upon them, 64. Time within which writs of error must be brought — Proviso for persons under disabilities, 65. Time within which writs of error for matters of fact must be brought, 65. WRECKS. Wreck districts laid off, 626. Commissioners of wrecks to be appointed — Their bond and oath, 626. No officer of the United States to be a commissioner, 627. Dutjr of the commissioners of wrecks, 627. Commissioners to advertise and make sales, 628. to render an account of sales, 628. Their compensation, 628. How sales to be advertised, 628. What to be done when there is a wreck without any person to claim, 628. Persons finding wrecked property, what to do, 628. Punishment for stealing or embezzling wrecked property, 629. Penalty on commissioners for abuse of trust, 629. Persons finding wrecked property at sea, what to do, 629. Compensation to commissioners, when no owner appears, 629. YEAR'S PROVISION. See Widow. I f >^A.^ - /r^4- c^ ^^' 1 I I