iiilii!il'asSi'l!3B iiliiiii: im- M Ct)e lilitatp of t^e Onitiersitp of JI3ottl) Carolina CoIUctton ot jl^ortl) Catoltntana ^nSotDeli bE 3ogn g)ptunt !^tll of tl)e €Iai3j3 of 1S89 C345.e 1905" mi' MC AT CHAPEL 00022387418 This book may be kept out one month unless a recall notice is sent to you. It must be brought to the North Carolina Collection (in Wilson Library) for renewal. Form No A 369 REVISAL OF 1905 NORTH CAROLINA PREPARED UNDER CHAPTER THREE HUNDRED AND FOURTEEN OF THE LAWS OF ONE THOUSAND NINE HUNDRED AND THREE THOMAS B. WOMACK, hh. D., NEEDHAM Y. GULLEY, WILLIAm'b. RODMAN AND ENACTED AS A LAW AT THE SESSION OF THE GENERAL ASSEMBLY OF ONE THOUSAND NINE HUNDRED AND FIVE IN TWO VOLUPvIES VOLUME ONE / RALEIGH E. M. UzzELL & Co.. Printers and Bint 1905 Copyrighted lOOo by T. B. WOMACK, N. Y. GULLEY AND W. B. RODMAN FOE THE State of North Carolina. C 3HS.9L TABLE OF CONTENTS. VOLUME ONE. CHAPTERS. 1. Administration. 2. Adoption of Minok Children. 3. Aliens. 4. Apprentices. 5. Attorneys at Law. 6. Auctioneers. 7. Banks. 8. Bastardy. 9. Bonds. 10. Boundaries. 11. Burnt and Lost Records. 12. Civil Procedure. 13. Clerks Superior Court. 14. Commissioners of Affidavits. 15. Common Lav?. 16. Constables. 17. CONTEJIPT. 18". Conveyances. 19. Coroners. 20. Corporation Commission. 21. Corporations. 22. Costs. 23. County Commissioners. 24. County Prisons. 25. County Revenue. 2G. County Treasurer. 27. Courts — .Justices'. 28. Courts — Superior. 29. Courts — Supreme. 30. Descents. 31. Divorce and Alimony. 32. Electric Companies. 33. Estates. 34. Evidence. 35. Fences and Stock Law. 36. Gaming Contracts. 37. Grants. 38. Guardian. 39. Habeas Corpus. CONTENTS OF VOLUME ONE. 40. Hunting. 41. Idiots, Inebriates and Lunatics. 42. Innkeepers. 43. Insolvent Debtors. 44. Interest. 45. Jurors. 4G. Landlord and Tenant. 47. Libel and Slander. 48. Liens. 49. Liquors. 50. Marriage. 51. Married Women. 52. Mills. 53. Names op Persons. 54. Negotiable Instruments. 55. Notaries. 56. O.^THS. 57. Officers. 58. Oysters and Fish. 59. Partition. 60. Partnership. 61. Railroads. 02. Register of Deeds. 63. Religious Societies. 64. Restoration to Citizenship. 65. Roads, Bridges, Ferries. 66. Salaries and Fees. 67. Sheriff. OS. Statutes, Construction of. 69. Strats. 70. Sunday and Holidays. 71. Surety. 72. Taxes, Collection of. 7.3. Towns. 74. Trademarks. 75. Warehousemen. 76. Water Supplies. 77. Weights and Measures. 78. Widows. 79. Wills. 80. Criminal Procedure. 81. Crimes. Table of Comparative Section Numbehs. Index. TABLE OF CONTENTS. VOLUME TWO. CHAPTEES. 82. Agricultural Societies and Fairs. 83. BUELDING AND LOAN ASSOCIATIONS. 84. Bureau of Lador and Printing. 85. Charities. 80. CoNIEDERATE ilONUMENTS. 87. Department of Agriculture. 88. Drainage. 89. Education. 90. Elections. 91. Embalmers. 92. Fireman's Relief Fund. 93. General Assembly. - - 94. Geological and Economic Survey. 95. Health. 9H. Historical Coiimission. 97. Hospitals for Insane. 98. Impeachment. 99. Inspection. 100. Insurance. 101. Internal Improvements. 102. Militia. 103. Mines. 104. Navigation. 105. Pensions. 100. PuiiLic Buildings and (Jkounds. 107. Public Debt. 108. Public Libraries. 109. Public Printing. 110. Revenue and Machinery. 111. Rivers and Creeks. 112. Soldiers' Home. 113. State Boundaries. 114. State Flag. etc. 115. State Officers. IIG. State's Prison. 117. Trained Nurses. lis. United States Lands. 119. Veterinary Board. 120. AVkecks. 121. Concerning these Revised Statutes APPENDIX. Constitution of the United States. Constitution of North Carolina. Authentication of Records. Naturalization of Aliens. Removal of Causes. Index. PREFACE. The preface to the Revised Statutes, prepared bv ^Messrs. James Iredell and William H. Battle, contains a brief history of legislation in ]!^orth Carolina from the "Grand Assembly of the Connty of Albemarle," which convened in 1666 or 1667, to the legislation which resulted in "Potter's Revisal," prepared in 1N21, and which was then known as the "New Revisal." ilr. B. F. Moore and Judge W. B. Rodman, who published the Revised Code after it had been prepared by Messrs. Biggs and Moore, continued the history of the codification of our statute law in the preface of that publication, bringing it down to 1S54. The compilers and publishers of The Code in 18S3 did not publish a preface, and it may not be inappropriate to now bring this history down to the present time. In 1S6S a new Constitution of the State was adopted, which gi'eatly changed the State's judicial system and contemplated a complete codification of the statute laws, and possibly the unwritten law. By an ordinance of the Convention of 1868, Hon. Victor C. Barriugcr, Hon. A. W. Tourgee and Judge William B. Rodman were appointed commissioners to carry out the constitutional provisions, and on July 15, 1868, they submitted to the Legislature, then in session, a partial report, recommending (1) a Code of Civil Practise and Pro- cedure, (2) a Code of Criminal Practise and Procedure, (3) a Politi- cal Code, (4:) a Civil Code, (5) a Penal Code, (6) suggestions of alterations, amendments and revisions of laws necessary to carry out the provisions of the Constitution, (7) a general analysis of all the Codes. These commissioners made a second report on August 'M, 1808, and as a result of their labors The Code of Civil Procedure became a fi.xed part of our system of laws, although it will now be known merely VIII PREFACE. as the chapter on Civil Procedure in the Revisal of 1905. Those gentlemen also [)repared a number of statutes, which were in fact codifications and are embodied in the Public Laws of lS6S-'69. They prepared a Criminal Code, but it was never adopted bv the Legisla- ture. The Legislature of 187l-'72 (chapter 210) passed an act to pro- vide for the compilation of the public statutes, and appointed Judge William H. Battle a commissioner, with power to collate, digest and compile all the ])ub]ic statute laws of the State. Battle's Bevisal was submitted to the General Assembly of 1S72-'T;3, and Judge Bat- tle was authorized and directed to publish it. Tliis compilation was never enacted into a law, and for that reason the Legislature, in eight years after its publication, provided for a new codification, and appointed ]\Iessrs. W. T. Dortch, John Man- ning and John S. Henderson to do the work. By a provision in the Constitution of 1868 all existing laws, not repugnant to that instrument or to the Constitution of the L^nited States, were declared to be in force. This made it necessary for the Code commissioners to use the Revised Code as the basis of their work, and for them to codify all statutes j^rior to 1SG8 not repTignant to the new Constitution, as well as those enacted between lS(iS and 1883. The Code published in 1883 was the result of their labors, and its satisfactory reception by the people of the State is attested by the fact that not until twenty years of legislation had practically euiascu- lated it did tlic laM'-making body provide for another revision. By chapter 314 of the Public Laws of 1903 the undersigned were appointed commissioners to compile, collate, revise and digest all the public statute laws of the State. They M'ere to begin work tlie first of May, 1903, and were to deliver to the Secretary of State five hun- dred j)rinted copies of their report by November 15, 1904, thus giving tliem a little more than eighteen mouths to prepare and ])td)lisli tlieir PREFACE. IX report. The hastily printed legislative edition was carefully scruti- nized by a large joint legislative committee and adopted as a single act by the Legislature of 1905. The commissioners were required to incorporate into the act all general public statutes of that session, and to submit the same, before publication, to a legislative committee composed of Senator A. C. ZoUicoflfer and Representatives A. W. Graham and R. B. Redwine, which was done. This act became operative August 1, 190.5, but, owing to the mag- nitude of the work, it could not be published by that date. It may not be amiss to call attention to the fact that the Revised Code was authorized by the Legislature of 1850. The, commissioners made their report to the Legislature of 1854. The Code went into opera- tion November 1, 1883, nearly eight months after the adjournment of the Legislature, and was not delivered for some months thereafter, although it was published by one of the largest law publishing houses in the United States. So the present delay is not without precedent. The commissioners have adopted a new method of arrangement, which it is hoped will facilitate iinding the law. In view of the prominent black-letter heads to all of the sections, and the informa- tion contained in the top line of each page, as well as the division of chapters into appropriate sub-chapters, it was considered that it would be a useless expense and imnecessarily add to the bulk of the volume to print at the beginning of the chapters the captions of sec- tions, as was done in The Code and in the Revised Code. No references have been made by foot or marginal notes to judicial interpretation of the statutes, as such notes were not contemplated or provided for by the legislation prescribing the duties of the commis- sioners. The volume of legislation in the last twenty-two years, the period covered by our labors, made it impracticable to publish the work in one volume. The first volume contains the statutes of general appli- X PREFACE. cation, and more particularly affecting onr people as a whole, while in the second volume is collected those statutes relating largely to the political government of the commonwealth and of its several depart- ments and institutions. There are also included in the second volume those statutes which it is customary to have printed and distributed in pamphlet form. The original draft of the index is the work of the clerk of the com- missioners, George P. Pell, Esq., and is much more elaborate and more carefully prepared than anything of the kind heretofore under- taken in any of our codifications. An innovation has been made, in that for the first time the type metal from which the Eevisal of 1905 is printed has been preserved, and will facilitate the i^ublication of new editions as often as each recurring Legislature shall deem it wise, and at a minimum cost. With these observations, the Eevisal of 100,5 (the name selected by the legislative committee) is submitted to a generous and appre- ciative public, trusting that, with the corrections and amendments which it received from the Legislature, and the sanction given to it by that hodj, it will contribute to an extension of the knowledge of our statutory law by our people, and to a just administration thereof by our courts. Thojias L. Woir.vcK, Neediiaji Y. Gulley, WiLLIAJI E. EoD.MAN. STATE OF NORTH CAROLINA. IX THE YEAR OF OUR LORD ONE THOUSAND NINE HUNDRED AND FIVE. AN ACT FOR REVISING AND CONSOLIDATING THE PUBLIC AND GENERAL STATUTES OF THE STATE OF NORTH CAROLINA. Tlie ticneral Assembly of XortJi, Carolina do enact the following named chapters, subchapters and sections, to be known as the Revisal of 1905, that is to sav: ADMINISTRATIOX— /. Necessity for. Ch. 1 CHAPTEE 1. ADMINISTRATION. Sections. I. Necessity for, I— 2 II. To whom granted, 3— 13 III. Will annexed, 14— 15 IV. Jurisdiction, IG— 17 V. Public administrator. 18— 21 VI. Collectors, 22— 25 VII. Application for letters, 26— 36 VIII. Revocation, 37— 38 IX. Advertisement for creditors. 39— 41 X. Inventory, 42— 44 XI. What are assets, 45— 58 XII. Wrongful death. 59— 60 XIII. Sales of personalty. 61— 67 XIV. Sales of realty. 68— 86 XV. Debts, proved and paid, 87— 98 XVI. Accounts, 99—103 XVII. Accounting compelled. 104—131 xviir. Distribution, 132—137 XIX. After-born children. 138—143 XX. Settlement, 144—155 XXI. Actions by and against representative. 156—165 XXIT. Miscellaneous provisions, 166—173 I. Xecessity for. 1. Penalty; what family may use. No person shall enter upon the administration of any decedent's e.state nntil he has obtained letters therefor, under the penalty of one hundred dollars, one-half to the use of the informer and the other half to the state; but nothing herein contained shall pi'event the family of the deceased from using so much of the crop, stock and provisions on hand as may be necessary, until the widow's year's support is assigned there- from, as prescribed by law. Code, s. 1522; 1868-9, c. 113. s. 93. 2. Executor de son tort. Every person who shall receive goods or debts of any person dying intestate, or any release of a debt due the intestate, upon a fraudulent intent, or without such valuable consideration as shall amount to the value or thereabout, shall be chargeable as executor of his own wrong, so far as such debts and goods, coming to his hands, or whereof he is released, will satisfy. Code, s. 1494; 1868-9, c. 113, s. 67: 43 KHz., c. 8. ADMINISTEATIOX— //. To Wlwm Granted. Ch. 1 II. To Whom Granted. 3. Order in which persons entitled. Letters of administration, in case of intestacy, shall be granted to the persons entitled thereto and applying for the same, in the following order: 1. To the hiisband or widow, except as hereinafter provided. 2. To the next of kin in the order of their degree, where they are of diiferent degrees ; if of eqnal degree, to one or more of them, at the discretion of the clerk. 3. To the most competent creditor who resides within the state, and proves his debt on oath before the clerk. 4. To any other person legally competent. Code, s. 1376; C. C. P., s. 456; R. C, c. 46, ss. 2, 3; 1868-0, e, 113, s. 115. 4. Husband, on wife's estate; his interest therein. If any mar- ried woman shall die wholly or partially intestate, the siirviving hnsband sliall be entitled to administer on her personal estate, and shall hold the same, subject to the claims of her creditors and others having rightful demands against her, to his own use, except as hereinafter provided. If the husband shall die after his wife, but before administering, his executor or administrator or assignee shall receive the personal property of the said wife, as a part of the estate of the husband, subject as aforesaid, and except as provided by law. Code, s. 1479; 1871-2, c. 193, s. 32. 5. Disqualifications. The clerk shall not issue letters of admin- istration ijr letters testamentary to any person who, at the time of appearing to qualify — 1. Is under the age of twenty-one years. 2. Is a nonresident of this state; but a nonresident may qualify as executor. 3. Has been convicted of a felony. 4. Is adjudged by the clerk incompetent to execute the duties of such trust by reason of drunkenness, improvidence or want of understanding. 5. Fails to take the oath or gwc the bond required by law. 6. Has renounced his right to qualify. Code, ss. 1377, 1378, 2162; C. C. P., s. 457. Note. For disqualification of executor of an executor, see s. 15. 6. When disqualified persons entitled. ^Yhere an executor named in the will, or any person having a prior right to adminis- ter, is under tlie disqualification of nonage, or is temporarily absent from the state, such person is entitled to six months, after 6 ADMIXISTRATIOX— //. To 117; om Granted. Ch. 1 coming of age or after his return to the state, in which to make application for letters testamentary, or letters of administration. Code, ss. 1379, 21G5; C. C. P., ss. 452. 460; R. C, c. 4G, s. 12. 7. Forfeiture by divorce or felonious slaying. When a marriage shall be dissolved a vineiilo, tliu parties respectively, or when either party shall be convicted of the felonious slaying of the other, or of being accessory before the fact of such felonious slaying, the party so convicted shall thereby lose all his or her right to administer on the estate of the other, and to a distributive share in the personal property of the other, and every right and estate in the personal estate of the other. Code, s. 1480; 1889, e. 499; 1871-2, e. 193, s. 42. Note. For forfeiture generally b.y divorce a vinculo, see s. 2109. 8. Elopement and adultery of wife forfeits right. If any mar- ried woman shall elope with an adulterer, and shall not be living with her husband at his death, she shall thereby lose all right to a distributive share in the personal proi^erty of her husband, and all right to administer on his estate. Code, s. 1481; 1871-2, c. 193, s. 44. Note. For forfeiture generally for elopement, see ss. 2110, 2111. 9. How husband forfeits right as to wife's estate, if any husband shall sejiarate himself from his wife, and be living in adul- tery at her death, or if she shall have obtained a divorce a mensa et thoro, and shall not be living with her husband at her death, or if the husband shall have abandoned his wife, or shall have mali- ciously turned her out of doors, and shall not be living with her at her death, he shall thereby lose all his right and estate of whatever character in and to her personal property, and all right to admin- ister on her estate. Code, s. 1482; 1871-2. c. 103, s. 45. 10. Executor may renounce. Any person appointed an e.xecu- tor may renounce the office by a writing signed by him, and on the same being acknowledged or proved to the satisfaction of the clerk of the superior court, it shall be filed. Code, s. 2163; C. C. P., s. 450. 11. When renunciation required. When any person applies for administration, and any other person has prior right thereto, a written renunciation of the person or persons having sueli prior right must be produced and filed with the clerk. Code, s. 1378; C. C. P., s. 459. 12 ADMINISTEATION— Z/. To ^yhom Granted. Ch. 1 12. When person entitled deemed to have renounced, if any person, entitled to letters of administration, fails or refuses to apply for such letters within thirty days after the death of the intes- tate, the clerk, on application of any party interested, shall issue a citation to such person to show cause, within twenty days after service of the citation, why he should not be deemed to have renounced. If, within the time named in the citation, he neglects to answer or to show cause, he shall be deemed to have renounced his right to administer, and the clerk must enter an order accord- ingly, and proceed to grant letters to some other person. If no per- son entitled to administer shall apply for letters of administration on the estate of a decedent within six months from his death, then the clerk may, in his discretion, deem all prior rights renounced and appoint some suitable person to administer such estate. Code, s. 1380; C. C. P., s. 460 (a) ; 1868-9, c. 203. 13. When executor deemed to have renounced, if any per- son appointed an executor does not qualify or renounce within sixty days after the will is admitted to probate, the clerk of the superior court, on the application of any other executor named in the same will, or any party interested, shall issue a citation to such iDcrson to show cause why he should not be deemed to have renounced. If, upon service of the citation, he does not qualify or renounce within such time, not exceeding thirty days, as is allowed in the citation, an order must be entered by the clerk decree- ing that such person has renounced his apjiointment as executor. Code, s. 2164; C. C. P., s. 451. III. Will Ani^exed. 14. Letters with, issued when. If there is no executor appointed in the will, or if, at any time, by reason of death, incom- petency adjudged by the clerk of the superior court, renunciation, actual or decreed, or removal by order of the court, or on any other account there is no executor qualified to act, the clerk of the superior court may issue letters of administration with the will annexed, to some siiitable person or persons, in the order presci-ibed in this chapter. Code, s. 21G6; C. C. P., s. 453. 15. Qualification of administrators with. Administrators with the will annexed shall have the same qualifications and give the same bond as other administrators; but the executor of an executor shall not be entitled to qualify as executor of the first testator. Code, s. 2167; 0. C. P., s. 454; 1905, c. 286. 1(5 ADMINISTRATION— 7T. Junsdidion. Ch. 1 IV. JUKISDICTION. 16. Of clerk of superior court. The clerk of the superior court of each countv has jurisdiction, within his county, to take proof of wills and to grant letters testamentary, letters of administration with the Avill annexed, and letters of administration in cases of intestacy, in the following cases: 1. Where the decedent at, or inunediately previo\is to, his death was domiciled in the county of such clerk, in whatever place such death may have hajjpened. 2. Where the decedent at his death had his fixed place of dorai- cil in more than one county, the clerk of any such county has juris- diction. 3. Where the decedent, not being domiciled in this state, died out of the state, leaving assets in the county of such clerk, or assets of such decedent thereafter come into the county of s\ich clerk. 4. Where the decedent, not being domiciled in this state, died in the county of such clerk, leaving assets in the state, or assets of such decedent thereafter come into the state. Code, s. 1374; C. C. P., s. 433; R. C, e. 46, s. 1; 1868-9, c. 113, 3. 115. 17. What clerk has exclusive. The clerk who first gains and exercises jurisdiction luider this chapter thereby acquires sole and exclusive jurisdiction over the decedent's estate. Code, s. 1375; C. C. P., 4.34. V. Public Admi:^istkator. 18. How appointed. There may be a public administrator in every count}', appointed by the clerk of the superior co\irt for the term of eight years. Code, s. 1389; 1868-9, c. 113. 19. Takes and subscribes oath; gives bond. The public admin- istrator shall take and subscribe an oath (or affirmation) faithfully and honestly to discharge the duties of his trust; and the oath so taken and subscribed must be filed in the office of the clerk of the superior court, and he must give the bond required by law. Code, ss. 1.393, 1390; 1868-9, c. 113, ss. 2, 5. Note. For bond, see Bonds, s. 320. 20. When letters issue to. The public administrator shall apply for and obtain letters on the estates of deceased persons in the following cases : 1. When the period of six months lias elaj)sed from the death 20 ADMIN'ISTRATION— T\ Public Administrator. Ch. 1 of any decedent, and no letters testamentary, or letters of admin- istration or collection, have been api^lied for and issued to any l^erson. 2. When any stranger, or person without known heirs, shall die intestate in any county. 3. When any person entitled to administration shall request, in writing, the clerk to issue the letters to the public administrator. Code, s. 1394; 1868-9, e. 113, s. 6. 21. Powers; duties; when term expires. The public admin- istrator shall have, in respect to the several estates in his hands, all the rights and powers, and be subject to all the duties and lia- bilities of other administrators. On the expiration of the term of office of a public administrator, or his resignation, he may continue to manage the several estates committed to him prior thereto until he shall have fully administered the same, if he shall then enter into a bond as required by law for administrators. Code, s. 1395; 1868-9, c. 113, s. 7; 1876-7, c. 239. VI. COLLECTOES. 22. When and how appointed. Whenever, for any reason, a delay is necessarily produced in the admission of a will to probate, or in granting letters testamentary, letters of administration, or let- ters of administration with the will annexed, the clerk may issue to some discreet person or persons, at his option, letters of collec- tion, authorizing the collection and preservation of the property of the decedent. Code, s. 1383; C. C. P., s. 463; R. C. c. 46, s. 9; 1868-9, c. 113, s. 115. 23. Qualification; bond. Every collector shall have the quali- fications and give the bond prescribed by law for an administrator. Code, s. 1384; C. C. P., s. 464. 24. Authority. Every collector has authority to collect the per- sonal property, preserve and secure the same, and collect the debts and credits of the decedent, and for these purposes he may com- mence and maintain or defend suits, and he may sell, under the direction and order of the clerk, any personal property for the preservation and benefit of the estate. He may be sued for debts due by the decedent, and he may pay funeral expenses and other debts. Code, s. 1385; C. C. P., s. 465; R. C, c. 46, s. 6; 1868-9, c. 113, s. 115. 25. Authority ceases, when; duty to account. When letters testamentary, letters of administration or letters of administration 25 ADMIXISTRATIOX— T7. Collectors. Cli. 1 with the will annexed are granted, the powers of such collector shall cease, but any suit brought by the collector may be coiitinued by his successor, the executor or the administrator in his own name. Such collector must, on demand, deliver to the executor or administrator all the property, riglits and credits of the decedent under his control, and render an account, on oath, to the clerk of all his proceedings. Siich delivery and account may be enforced by citation, order or attachment. Code, s. 1386; C. C. P., s. 466; R. C, c. 46, s. 7; 1868-9, c. 113, s. 115. VII. Application foe Letters. 26. What to contain. On application for letters of adminis- tration, the clerk must ascertain by affidavit of the applicant or otlierwise — ■ 1. The death of the decedent and his intestacy. 2. That the api^licant is the proper person entitled to admin- istration, or that he applies after the renunciation of the person or persons so entitled. 3. The value and nature of the intestate's property, the names and residence of all parties entitled as heirs or distributees of the estate, if known, or that the same can not, on diligent inquiry, be pi'ocured ; which of said parties are minors, and whether with or without guardians, and the names and residences of such guar- dians, if known. Such affidavit or other proof must be recorded and filed by the clerk. Code, s. 1381; C. C. P., s. 461. 27. How contest over, instituted. Any person interested in the estate may, on complaint filed and notice to the applicant, contest tlie right of such applicant to letters of administration, and on any issue of fact joined, or matter of law arising on the pleadings, the cause may be transferred to the superior court for trial, or an appeal be taken, as in other special proceedings. Code, s. 1382; C. C. P., s. 462. 28. Executor gives bond, when. Executors shall give bond as prescribed by law in the following cases: 1. Where the executor resides out of tlie state. And no foreign executor has any authority to intermeddle with the estate until he shall have entered into bond, which must be done within tlie space of one year after the death of the testator, and not afterwards. 2. When a man marries a Avoman who is an executrix, and if the husband in such case fail to give bond, tlie clei'k, on application of any creditor or other party interested in the estate, shall revoke the 2S ADMIXISTRATIOX— T'//. Application for Letters. Ch. 1 letters issued to the wife and grant letters of administration with the will annexed to some other person. 3. AVhcre an executor, other than snch as may have already given bond, obtains an order to sell any portion of the real estate for the payment of debts, as hereinafter provided, the conrt or clerk to whom application is made shall require, before granting any order of sale, such executor to enter into bond. Code, s. 1515; R. C, c. 46, ss. 12, 13. 29. Oath taken; bond given. Before letters testamentary, let- ters of administration with the will annexed, letters of administra- tion or letters of collection are issued to any person, he must give the l)ond required by law and must take and subscribe an oath or affirmation before the clerk that he will faithfully and honestly dis- charge the duties of his trust, which oath must be tiled in the office of the clerk. Code, ss. 1387, 1388, 2169; C. C. P., ss. 467, 468; 1870-1, c. 93. Note. For bond, see Bonds, s. 319. 30. Persons injured may sue on bond. Every person injured by the breach of any bond given by an executor, administrator or col- lector, may put the same in suit and recover such damages as he may have sustained. Code, s. 1516; 1868-9, c. 113. s. 87. 31. Letters revoked, bond liable to successor for default. Whenever the letters of an executor, administrator or collectur are revoked, his bond may be prosecuted b}' the person or persons suc- ceeding to the administration of the estate, and a recovery may be had thereon to the full extent of any damage, not exceeding the pen- alty of the bond, sustained by the estate of the decedent by the acts or omissions of such executor, administrator or collector, and to the full value of any property received and not duly administered. Moneys so recovered shall be assets in the hands of the person recov- ering them. Code, s. 1517; 1868-9, c. 113, s. 88. 32. When new bond or new sureties required. If complaint be made on affidavit to the clerk of the superior court that the surety on any bond of an executor, administrator or collector is insuffi- cient, or that one or more of such sureties is or is about to become a nonresident of this state, or that the bond is inadequate in amount, the clerk must issue an order requiring the principal in the bond to show cause why he should not give a new bond, or further surety, as the case may be. On the return of the order duly executed, if the objections in the complaint are found valid, the clerk shall make 32 ADMHSriSTEATION— F//. Application for Letters. Ch. 1 an order requiring the party to gi\'e further surety or a new bond in a larger amount within a reasonable time. Code, s. 1518; 1868-9, c. 113, s. 89. 33. Remedy of surety in danger of loss. Any surety on the bond of an executor, administrator or collector, who is in danger of sustaining loss by his suretyship, may exhibit his petition on oath to the clerk of the superior court wherein the bond was given, setting forth particularly the circumstances of his case, and asking that such executor, administrator or collector be removed from office, or that he give security to indemnify the petitioner against appre- hended loss, or that the petitioner be released from responsibility on account of any future breach of the bond. The clerk shall issue a citation to the principal in the bond, requiring him, Avitliin ten days after service thereof, to answer the petition. If, iipon the hearing of the case, the clerk deem the surety entitled to relief, he may gTant the same in such manner and to such extent as may be just. And if the principal in the bond gives new or additional security, to the satisfaction of the clerk, within such reasonable time as may be required, the clerk may make an order releasing the surety from liability on the bond for any subsequent act, default or misconduct of the principal. Code, 3. 1519; 1868-9, e. 113, s. 90. 34. Failing to give new bond, letters revoked, if any person required to give a new bond, or further security, or security to indemnify, under the two preceding sections, fails to do so within the time specified in any such order, the clerk must forthwith revoke the letters issued to such person, whose right and authority, respect- ing the estate, shall thereupon cease. Code, a. 1520; 1868-9, c. 113, s. 91. 35. Letters revoked; successor appointed; estate protected. In all cases of the revocation of letters, the clerk must immediately appoint some other person to succeed in the administration of the estate; and pending any suit or proceeding between parties respect- ing such revocation, the clerk is authorized to make such interlocu- tory order as, without injury to the rights and remedies of credit- ors, may tend to the better securing of the estate. Code, s. 1521; 1868-9. c. 113, s. 92. 36. Form of letters. .\11 letters must be issued in the name of the state, and tested in the name of the clerk of the sujierior court, signed by him, and scaled with his seal of office, and shall have attached thereto copies of sections forty-two and ninety-nine. Code, as. 1399, 2172; C. C. P., ss. 471, 478; 1871-2, c. 46. ■■n ADMINISTEATION— TT//. B evocation. Ch. 1 VIII. Revocation. 37. On proof of will. If, after the letters of administration are issued, a will is subsequently proved and lettei's testamentary are issued thereon; or, if after letters testamentary are issued, a revo- cation of the will, or a subsequent testamentary paper revoking the appointment of executors is proved and letters are issued thereon, the clerk of the superior court must thereupon revoke the letters first issued, by an order in writing to be served on the person to whom such first letters were issued ; and, until service thereof, the acts of such person, done in good faith, are valid. Code, s. 2170; C. C. P., s. 4G9. 38. For disqualification or default. If, after any letters have been issued, it appears to the clerk, or if complaint is made to him on affidavit, that any person to whom they were issued is legally incompetent to have such letters, or that such person has been guilty of default or misconduct in the due execution of his ofiice, or that the issue of such letters was obtained by false representations made by such person, the clerk shall issue an order requiring such person to show cause why the letters should not be revoked. On the return of such order, duly executed, if the objections are found valid, the letters issued to such person must be revoked and super- seded, and his authority shall thereupon cease. Code, s. 2171; C. C. P., s. 470. IX. Adveetiseiiext foe Creditoes. 39. Advertisement for claims, when and how made; cost. Every executor, administrator and collector, within twenty days after the granting of letters, shall notify all persons having claims against the decedent to exhibit the same to such executor, admin- istrator or collector, at or before a day to be named in such notice; which day must be twelve months from the day of the first publica- tion of such notice. The notice shall be published once a week for six weeks in a newspaper, if any there be published in the county. If there shall be no newspaper published in the county, then the notice shall be posted at the courthouse and four other public places in the county. The cost of publishing in a paper shall in no case exceed two dollars and fifty cents. Code, ss. 1421, 1422; 1868-9, c. 113, s. 29; 1881, c. 278, s. 2. 40. How proved. A copy of the advertisement directed to be posted or published in pursuance of the preceding section with an affidavit, taken before some person authorized to administer oaths. 40 ADMIXISTRATIOX— AY. Advertisement. Creditors. Ch. 1 of the proprietor, editor or foreman of the newspaper wherein the same appeared, to the effect that such notice was published for six weeks in said newspaper, or an attidavit statinj; that such notices were posted shall be filed in the office of the clerk by the executor, administrator or collector. The copy so verified or affidavit shall be deemed a record of the court, and a copy thereof, duly certified by the clerk, shall be received as conclusive evidence of the fact of publication in all the courts of this state. Code, s. 1423; 18G8-9, e. 113, s. 31. 41. Notice may be served on creditor personally. The execu- tor, administrator or collector may cause the notice to be person- ally served on any creditor, who shall, thereupon, within six months after personal service thereof, exhibit his claim, or be for- ever barred from maintaining any action thereon. Code, s. 1424; 1808-9, c. 113, s. 32; 1885, 96. X. Invextoky. 42. Taken and returned within three months. Every executor, administrator and collector, within three months after his qualifi- cation, shall return to the clerk, on oath, a jiist, true and perfect inventory of all the real estate, goods and chattels of the deceased, which have come to his hands, or to the hands of any person for him, which inventory shall be signed by him and be recorded by the clerk. Pie shall also return to the clerk, on oath, within three months after each sale made by him, a full and itemized account thereof, which shall be signed by him and recorded by the clerk. Code, s. 1396; R. C, c. 4G, s. 10; 1868-9, c. 113, s. 8. 43. How compelled. If the inventury and account of sale speci- fied in the preceding section are not returned as therein prescribed, the clerk must issiie an order requiring the executor, administrator or collector to file the same within the time specified in the order, which shall not be less than twenty days, or to show cause why an attachment should not be issued against him. If, after due service of the order, the executor, administrator or collector does not, on the return day of the order, file such inventory or account of sale, or obtain further time to file the same, the clerk shall have poivor to vacate the ofiice of administrator, executor or collector. Code, s. 1397; 1808-9, c. 113, s. 9. Note. For additional remedy, see Crimes. 44. New assets inventoried. Whenever furtlier property of any kind, not included in any previous return, shall come to the hands 44 ADMINISTRATIOX— X. Inventory. Ch. 1 or knowledge of any executor, administrator or collector, he mnst ea\ise the same to be returned, as hereinbefore prescribed, within three months after the possession or discovery thereof; and the making of such return of new assets, from time to time, may be enforced in the same manner as in the case of the first inventory. Code, s. 1398; 1868-9, c. 113, s. 10. XI. What are Assets. 45. Distinction between legal and equitable abolished. The dis- tinction between legal and equitable assets is abolished, and all assets shall be applied in the discharge of debts in the manner pre- scribed by this chapter. Code, s. 1406; 1808-9, c. 113, s. 14. 46. Trust estate in personalty, if any trustee, or any person interested in any trust estate, shall die leaving any equitable inter- est in personal estate which shall come to his executor, adminstra- tor or collector, the same estate shall be deemed personal assets. Code, s. 1403; 1S68-9, c. 113, s. 11. 47. Crops ungathered at death. The crops of every deceased person, remaining ungathered at his death, shall, in all cases, belong to the executor, administrator or collector, as part of the personal assets, and shall not pass to the widow with the land assigned as dower ; nor to the devisee by virtue of any devise of the land, unless such intent be manifest and specified in the will. Code, s. 1407; 1868-9. c. 113, s. 15. 48. What proceeds of real estate deemed personal assets. All proceeds arising from the sale of real property, for the payment of debts, as hereinafter provided, shall be deemed personal assets in the hands of the executor, administrator or collector, and applied as though the same were the proceeds of personal estate. Code, s. 1404; 1868-9, c. 113, s. 12. 49. What proceeds of real estate deemed real assets. All proceeds from the sale of real estate, as hereinafter provided, which may not be necessary to pay debts and charges of administration, shall, notwithstanding, be considered real assets, and as such shall be paid by the executor, administrator or collector to s\ich persons as would have been entitled to the land had it not been sold. Code, s. 1405; 1868-9, c. 113, s. 13. 50. Personalty fraudulently conveyed recovered, if there be not sufticient real and personal assets of the deceased to satisfy all 50 ADMIXISTRATIOX— A7. \Vhat are Assets. Ch. 1 the debts and liabilities of deceased, together with the costs and charges of administration, the personal representative shall have the right to sue for and reco\'er any and all personal property which the deceased may in anywise have transferred or con\-cyed with intent to hinder, delay, or defraud his creditors, and any money or property so recovered shall constitute assets of the estate in the hands of the personal representative f to the clerk for confiruialion. 1893, c. 340. 05 ADMIXISTRATIOX— A7//. Sales of PprsonnUy. Ch. 1 65. On credit; how proceeds secured. The proceeds of all sales of personal estate and rentings of real property by public auction or privately sliall be secured by bond and good personal security; and such proceeds shall be collected as soon as practicable, otherwise the executor, administrator or collector shall be answerable for the same. Code, s. 1413; 1S93, c. 346, s. 2; 1868-9, o. 113. s. 21. 66. Public, hours of; penalty. All piiblic sales or rentings pro- vided for in this chapter sliall be between the hours of ten o'clock a. ni. and four o'clock p. m. of the day on which the sale or rent- ing is to be made, except that in towns or cities of more than five flionsand inhabitants public sales of goods, wares and merchandise niaj' be continued until the hour of ten o'clock p. m. ; and every executor, administrator or collector who otherwise makes any sale or renting shall forfeit and pay two hundred dollars to any person suing for the same. Code, s. 1414; 1893, c. 346, .s. 3; 186S-9, c. 113, .?. 22.' " 67. Evidences of debt, when and how sold. Every executor, administrator and collector, at any time after one year from the grant of letters, shall be authorized to sell at public auction, in the manner prescribed in this chapter, all bills, bonds, notes, accounts, or other evidences of debt belonging to the decedent, which he has been unable to collect or which may be deemed insolvent. Before offering such evidences of debt at public sale he shall file with the clerk a descriptive list thereof, and obtain an order of sale therefor from the clerk, and shall make return of the proceeds of such sale as in other cases of assets. Code, s. 1412; 1868-9, c. 113, .s. 20. XIV. S.M.Es OF Realty. 68. To pay debts when personalty insufficient. When the per- sonal estate of a decedent is insufficient to pay all his debts, includ- ing the charges of administration, the executor, administrator or collector may, at any time after the grant of letters, apply to the superior co\irt of the county where the land or some part thereof it situated, by petition, to sell the real jn-operty for the payment of the debts of such decedent. Code, t. 1436; lSGS-9. e. 113. s. 42. 69. Undevised first sold. Wlien any j.art of the real estate of tlie testator descends to his heirs by reason of its not being devised or disposed of by the will, such undevised real estate shall be first chargeable with payment of debts, in exoneration, as far as it will 69 ADMINISTRATION— A71'. Sales of BeaUy. Cb. 1 go, of the real estate that is devised, unless from tlie will it appears otherwise to be the wish of the testator. Code, s. 1430; 18680, c. 113, s. 39. 70. Conveyances by heir within two years of letters. All con- veyances of real property of any decedent made by any devisee or heir at law, within two years from the grant of letters, shall be void as to the creditors, executors, administrators and collectors of such decedent ; but such conveyances to bona iide purchasers for value and without notice, if made after two years from the grant of letters, shall be valid even as against creditors. Code, s. 1442; 1868-9, c. 113, s. 105. 71. Conveyed to personal representative; power of successor. Whenever land is conveyed to a personal representative for the benefit of the estate he represents, he may sell and convey same upon such terms as he may deem just and for the advantage of said estate ; which sale shall be public, after due advertisement, as for judicial sales, unless the conveyance is made to the party entitled to the proceeds. If saich land is not conveyed by such personal representative during his life or term of office his successor may sell and cimvey such land as if the title had been made to him: Provided, if the predecessor lias contracted in writing to sell said lands, but fails to convey same, his successor in office may do so upon payment of the purchase price. 1905, c. 342. 72. Conveyed in fraud of creditors. The real estate subject to sale under this chapter shall include all the deceased may have conveyed with intent to defraud his creditors, and all rights of entry and rights of action and all other rights and intei'csts in lands, tenements and hereditaments which he may devise, or by law would descend to his heirs : Provided, that lands so fraudu- lently conveyed shall not be taken from any one who purchased them for a valuable consideration and without a knowledge of the fraud. Code, s. 1446; 1808-9, c. 113, s. 51. 73. Fraudulent grantee, selling innocent purchaser, liable. Whenever an executor, administrator or collector shall file his petition to sell land, whicli may have been fraudulently conveyed, and of which there may have been a subsequent bona fide sale, whereby he can not have a decree of sale of the land, the court may give judgment in favor of such executor, administrator or collec- tor for the value of the land, against all persons who may have fraudulently purchased the same; and if the whole recovery shall 73 ADMINISTRATIOX— AYT'. Sales of Eealtij. Oh. 1 not be necessary to pay tlie debts and charges, the residue shall be restored to the person of whom the recovery was made. Code, s. 1447; 1SG8-9, c. 113, s. 52. 74. Heirs and devisees necessary parties to proceeding. No order to sell real estate shall be granted till the heirs or devisees of the decedent have been made parties to the proceeding, by ser- vice of snimnons, either pei'sonally or by publication, as required by law. Code, s. 1438; 1868 9, c. 113, s. 44. 75. Infants defend by guardian; must answer. Infant defend- ants must appear by guardian, either general or special, who shall file an 'answer to the petition, either admitting or denying the alle- gations thereof, and where such answer is filed by a guardian ad litem the costs and expenses thereof, if any, may be directed to be paid, if the court thinks proper, out of the proceeds of the sale, in case one is ordered. Code, s. 1439: 1868-9, c. 113, s. 45. 76. Adverse claimant may be heard. Whenever the land, which is sought to be sold, is claimed by another person under any pre- tense whatsoever, such claimant shall be admitted to be heard as a party to the proceeding, upon affidavit of his claim, and if the issue be found for the petitioner he shall have his writ of posses- sion and order of sale accordingly. Code, s. 1441; 186S-9,"c. 113, s. 47. 77. What petition for, must show. The petition, which must be verified by the oath of the applicant, shall .set forth, as far as can be ascertained : 1. The amount of debts outstanding against the estate. 2. The value of the personal estate, and the application thereof. 3. A description of all the legal and equitable real estate of the decedent, with the estimated value of the respective portions or lots. 4. The names, ages and residences, if known, of the devisees and heirs at law of the decedent. Code, s. 1437; 1868-9, c. 113, s. 43. 78. Issue joined, cause transferred to term. When an issue of law or fact is joined between the parties, the course of the procedure shall be as prescribed in such cases for other special j^roceedings. Code. s. 1440; 1868-9, c. 113. s. 46. 79. Petition not denied, order made. x\s soon as all proper parties are made to the proceeding, the clerk of the superior court 79 ADMIXISTRATIOX— A7T'. Sales of BeaJty. Cb. 1 before wbom it is instituted, if tbe allegations in tbe petition are not denied or controverted, sball bave power to bear tbe same sum- marily, and to decree a sale. Code, s. 1443; 18G8-9, c. 113, s. 48. 80. What order contains; what title made. Tbe court may decree a sale of tbe wbole or any specified parcel of the premises, in such a manner as to size of lots, place of sale, terms of credit, and security for j^ayment of purchase money, as may be most ad- vantageous to the estate, and \ipon the coming in of tbe report of tbe sale and the confirmation thereof, title sball be made by such person, and at such time as tbe court may prescribe, and in all cases where tbe persons in possession bave been made parties to tbe proceeding, the co\irt may grant an order for possession. Code, s. 1444; 1S68-9, c. 113, s. 49. 81. How advertised. Xotice of sale under this proceeding shall be tbe same as for tlie sale of real estate by sheriffs on execution. Code, s. 1445; 1868-9, c. 113, s. 50. 82. Lands devised to be sold by executor, who may sell. When any or all of tbe cxccuturs cif a perstm niakiiiji a will of lands to be sold by bis executors shall die, fail or for any cause refuse to take upon them the administration ; or after having qualified shall die, resign, or for any cause be removed from tbe position of execu- tor ; or when there is no executor named in a will devising lands to be sold, in every such case such executor or executors as survive or retain tbe burden of administration, or the administrator with t]ie will annexed, or tbe administrator de bonis non, may sell and convey such lands ; and all. such conveyances which bave been or sball be made by such executors or administrators shall bo effectual to coiivcv the title to the jmrebaser of tbe estate so devised to be sold. Code, s. 1493; 1889, c. 461. 83. Land sold by decedent, who makes deed. When any deceased jierson sball ba\e bona fide sold any lands, and sliall bave given a bond or other written contract to the purchaser to convey tbe same, and the bond or other written contract bath been duly proved and registered in the county where tbe lands are situated, if within tbe state, or, if not in the state, sball be jn-oved before tbe clerk of tbe superior court and registered in the county wbei'e tbe obligee lives or obligor died, his executor, administrator or collector may execute a deed to tbe jmi-cbaser conveying such estate as shall be specified in tbe lioiid or ntbcr written contract: and such deed 83 ADMINISTEATION— A7T'. Sales of Bealtij. Ch. 1 shall convej' the title as fully as if it had been executed by the deceased obligor: Provided, that no deed shall be made but upon payment of the price, if that be the condition of the bond or other written contract. Code. s. 1492; 1S68-9, c. 113, s. 65; 1S74-.5, c. 251. 84. Under will, may be public or private. Sales of real prop- erty made pursuant to authority given by will, unless the will other- wise directs, may be jrablic or private, and on such terms as, in the opinion of the executor, are most advantageous to those inter- ested therein. Code, s. 1503; 1808-9, c. 113, s. 75. 85. Realty bought for estate, when. At any auction sale of real property belonging to the estate, the executor, administrator or collector may bid in the property and take a conveyance to himself as execiitor, administrator or collector for the benefit of the estate, when, in bis opinion, this is necessary to prevent a loss to the estate. Code, s. 1505; 1808-9, c. 113, s. 77. 86. Specifically devised, devisee entitled to contribution. If, upon the hearing of any petition for the sale of real estate to pay debts, under this chapter, the court decree a sale of any part that may have been specifically devised, the devisee shall be entitled to contribution from other devisees, according to the principles of equity in respect to contribution among legatees. And the children and issiie provided for in this chapter shall be regarded as specific devisees in such contribution. Code, s. 1535; 1868-9, c. 113, s. 107. XV. . Debts, Proved asd Paid. 87. Order of payment. The debts of the decedent must be paid in the following order : First class. Debts which by law have a specific lien on property to an amount not exceeding the value of s\ich property. Second class. Funeral expenses. Third class. Taxes assessed on the estate of the deceased pre- vious to his death. Fourth class. Dues to the United States and trt the state of North Carolina. Fifth class. Judgments of any court of competent jurisdiction within this state, docketed and in force, to the extent to which they are a lien on the property of the deceased at his death. Sixth class. Wages due to any domestic servant or mechanical 87 ADMIKISTEATIOX— Xr. Debts, Proved and Paid. Ch. 1 or agricultural laborer emploj^ed by the deceased, which claim for wages shall not extend to a period of more than one year next pre- ceding the death; or if such servant or laborer was employed for the year current at the decease, then from the time of such employ- ment ; for medical services within the twelve months preceding the decease. Seventh class. All other debts and demands. Code, s. 1416; 1868-9, c. 113, s. 24. 88. No preference in the class. No executor, administrator or collector sluill give ti:) any debt any preference whatever, either by paying it out of its class or by paying thereon more than a pro rata proportion in its class. Code, ss. 1417, 1418; 1868-9, c. 113, ss. 25, 26. 89. Debts due executor not preferred. No property or assets of the decedent shall be retained by the executor, administrator or collector in satisfaction of his o\\m debt, in preference to others of the same class ; but such debt must be established upon the same proof and paid in like manner and order as required by law in case of other debts. Code, s. 1420; 1868-9, c. 113, s. 28. 90. Debts not due. how paid. Debts not due may be paid on a rebate of interest thereon for the time unexpired. Code, s. 1419; 1868-9, c. 113, s. 27. 91. Affidavit as to debt may be required. Upon any claim being presented against the estate, the executor, administrator or collector may require the affidavit of the claimant or other satisfactory evi- dence that such claim is justly due, that no payments have been made thereon, and that there are no offsets against the same, to the knowledge of the claimant ; or if any payments have been made, or any offsets exist, their nature and amount must be stated in such affidavit. Code, s. 1425; 1868-9, c. 113, s. 33. 92. Disputed debt may be referred. If the executor, adminis- trator or collector doubts the justness of any claim so presented, he may enter into an agreement, in writing, with the claimant, to refer the matter in controversy, whether the same be of a legal or equit- able nature, to one or more disinterested persons, not exceeding three, whose proceedings shall be the same in all respects as if such reference had been ordered in an action. Such agreement to refer, and the award thereupon, shall be filed in the clerk's office wliere the letters were granted, and shall be a lawful voucher for the per- 92 ADMINISTKATION— XT". DeUs, Proved and Paid. Ch. 1 sonal representative. The same may be impeached in any proceed- ing against the personal representative for fraud therein : Pro- vided, that the right to refer claims under this section shall extend to claims in favor of the estate as well as those against it. Code, s. 1426; 1868-9, c. 113, s. 34; 1872-3, c. 141. 93. Disputed debt not referred, barred in six months. If a claim is presented to and rejected by the executor, administrator or collector, and not referred as provided in the preceding section, the claimant must, within six months after due notice of such rejec- tion, or after some part of the debt becomes due, commence an action for the recovery thereof, or be forever barred from main- taining an action thereon. Code, s. 1427; 1868-9, c. 113. s. 35. 94. Claims not presented in twelve months, administrator not liable. In an action bi'ought on a claim which was not presented within twelve months from the first publication of the general notice to creditors, the executor, administrator or collector shall not be chargeable for any assets that he may have paid in satisfaction of any debts, legacies or distributive shares before such action was commenced ; nor shall any costs be recovered in such action against the executor, administrator or collector. Code, s. 1428; 1868-9, c. 113, s. 37. 95. No lien by suit against representative. No lien shall be created by the commencement of a suit against an executor, admin- istrator or collector. Code, s. 1432; 1868-9, e. 113, s. 41. 96. Payment of debts out of class, when valid. Where any executor or administrator has paid any debt of his testator or intes- tate before all the debts of higher dignity have been paid and satis- fied, and the estate of such testator or intestate was at the time of siTch payment solvent, but has since been rendered insolvent by the emancipation of the slaves, or the insolvency of the debtors of the estate, or other caiise, without any fault or want of diligence on the part of the executor or administrator, or when any creditor has refused to accept payment of his debt in Confederate currency, and such currency was afterwards used by the executor or admin- istrator in payment of debts of the estate, or it became of no value by the termination of the war, in all such cases payments thus made shall be deemed and held valid in law, and shall be allowed to such executor or administrator in all suits by creditors of the estate seek- ing to charge such executor or administrator with assets of the 96 ADMIXISTRATIOX— -YT'. Dchls, Proved aud Paid. Ch. 1 estate or -witli devastavit thereof without regard to the dignity of the debt thus paid, or on which snch suit may be brought. Code, s. U96; 1869-70. c. 150. 97. Costs against executors, when allowed. Xo costs shall be recovered in any action again.st an executor, administrator or col- lector, unless it appears that payment ^vas \inrcasonably delayed or neglected, or that the defendant, refused to refer the matter in controversy, in ■which cases the court may award such costs against the defendant personally, or against the estate, as may be just. Code, s. 1429: 1868-9, c. 113, s. 38. Note. See Costs; .see also, infra s. 115. 98. Bonds which bind heir. Bonds and other obligations in which the ancestor has bound his heirs shall not be put in suit against the heirs or devisees of the decea.sed, but shall be paid as other debts of the same class in the manner provided in this chapter. Code, s. 1404; 1868-9, c. 113, s. 12. XVI. Accounts. 99. Annual. Every executor, administrator and collector shall, within twelve months fi-om the date of his qualification or appoint- ment, and annually, so long as any of the estate remains in his control, file, in the office of the clerk of the superior court, an inven- tory and account, under oath, of the amount of property received by him, or invested by him, and the manner and nature of such investment, and his receipts and disbursements for the past year in the form of debit and credit. He must produce vouchers for all pajanents. The clerk may examine on oath such accounting party, or any other person, concerning the receipts, disbursements or any other matter relating to the estate; and, having carefully revised and audited such account, if he approve the same he must endorse his approval thereon, which shall be deemed prima facie evidence of correctness. Code, s. 1399; C. C. P.. s. 478; 1871-2. c. 46. 100. Failure to file, how compelled. If any executor, adminis- trator or collector omits u> aewunt, as directed in the pi'eceding sec- tion, or rendei's an in.sufhcient and inisatisfactory account, the clerk shall forthwith order such executor, administrator or collector to render a full and satisfactory account, as required hj law, within twenty days after service of the order. Ujiou return of the order, duly served, if such executor, administrator or collector fail to appear or refuse to exhibit such account, the clerk may issue an 100 ADMINISTKATIOX— X17. Accounts. Cli. 1 attacliment against him for a contempt and commit him till he exhibit such account, and may likewise remove him from office. Code, s. 1400; C. C. P., s. 479. 101. Vouchers presumptive evidence. Vouchers are presump- tive evidence of disbursement, without other proof, unless im- peached. If lost, the accounting party must, if required, make oath to that fact, setting forth the manner of loss, and state the contents and purport of the ^'oucher. And this section shall apply to guardians, collectors, trustees and to all other persons acting in a fiduciary character. Code, s. 1401; C. C. P., s. 480. 102. Voucliers for gravestones; when cost exceeds $100. It shall be lawful for executurs and admiuitftrators to provide suital)le gravestones to mark the graves of their testators or intestates, and to pay for the cost of erecting the same, and the cost thereof shall be paid as funeral expenses and credited as such in final accounts. The cost thereof shall be in the sound discretion of the executor or admin- istrator, having due regard to the value of the estate and to the interests of creditors and needs of the widow and distributees of the estate. Where the executor or administrator desires to spend more than one hundred dollars for such purpose he shall file his petition before the clerk of the court, and such order as will be made by the court shall specify the amount to be expended for such purpose, and same shall be approved by the resident judge of the district. 1905. c. 444. 103. Final account. An executor or administrator may be re- quired to file his final account for settlement in the office of the clerk of the superior court by a citation directed to him, at any time after two years from his qualification, at the instance of any person interested in the estate ; but such account may be filed voluntarily at any time; and, whether the accounting be voluntary or compulsory, it shall be audited and recorded by the clerk. Code, s. 1402; C. C. P., s. 481. XVII. Accounting Compelled. 104. By special proceeding by creditor. Any creditor of a deceased person may, witliin the times prescribed by law, prosecute a special proceeding or a civil action before the judge in his own name and in behalf of himself and all other creditors of the deceased with- out naming them, against the personal representative of the deceased. 104 ADMINISTKATIOX— A'F//. Accounting Compelled. Ch. 1 to compel him to an account of his administration, and to pay the creditors what may be payable to them respectively. Code, s. 1448; 1871-2. c. 213; 1876-7, c. 241, s. 6. 105. What rules govern. The said special proceeding shall be governed by the rules of practice prescribed for special proceedings, except so far as the same are modified by this chapter. Code, s. 1449; 1871-2, c. 213, s. 2. 106. When and where summons returnable. The .summons in said special proceeding shall be returnable before the clerk of the superior court of the county in which letters testamentary or of administration were granted, and on a day not less than forty nor more than one hundred days from the issuing thereof, and not less than tsventy days after the service thereof. Code, s. 1450; 1871-2, c. 213, s. 3. 107. Clerk to advertise for creditors, when. On issuing the summons, the clerk shall advertise for all creditors of the deceased to appear before him on or before the return day and file the evi- dences of their claims. Code, s. 1451; 1871-2, c. 213, s. 4. 108. How advertisement published. The advertisement shall be published at least once a week for not less than four weeks in some newspaper which may be thought liy the clerk the most likely to inform all the ci'editors, and shall also be posted at the courthouse door for not less than thirty days. If, however, the estate does not exceed three thousand dollars in value, and the creditiuvs are supposed by the clerk all to reside within the county or to be kno\vn, publication in a newsi)aper may be omitted, and in lieu thereof the advertisement shall be posted at four public places in the county, besides the courthouse door. Proof of personal service on a credi- tor or that a copy of the advertisement was sent to him by mail at liis usual address shall be as to him equivalent to publication. Code, s. 1452; 1903, c. 134; 1871-2, c. 213, s. 5. 109. Creditors to file claims; appoint agent. The creditors of the deceased on or before the required day shall file with the clerk the evidences of their demands, and evei-y creditor on filing such claim shall endorse thereon or otherwise name some person or place within the town in which the court is held. u])on whom or where notices in the cause may be served or left, otherwise he shall be deemed to have notice of all motions, orders and proceedings in the cause filed or made in the cleric's ofllce. Code, s. 1453; 1871-2, c. 213, s. 0. 26 110 ADMINISTEATION— A'lV/. Accoimtlng Compelled. Ch. 1 110. How claims proven. If the evidence of the demand be other than a judgment, or some writing signed by the deceased, it shall be accompanied by the oath of the creditor, or if he be non- resident or infirm or absent, or in_any other proper case, of some witness of the transaction, or of some agent of the creditor, that to the best of his knowledge and belief the claim is just, and that all due credits have been given. Code, s. 1454; 1871-2, e. 213, s. 7. 111. Representative to file claims; notice to creditors. On the day of his appearance the personal re]:)resentative shall on oath give to the clerk a list of all claims against the deceased of which he has received notice or has any knowledge, with the names and residences of the claimants to the best of his knowledge and belief; and if any person so named shall have failed to file evidence of his claim, the clerk shall immediately cause a notice requiring him to do so to be served on him, which may. be- done by posting the same, directed to him at his usual address. Code, s. 1455: 1871-2, c. 213, s. 8. 112. Clerk to exhibit claims to representative. On the day fixed for the appearance of the personal representative, the clerk shall exhibit to him a list of all the claims filed in his office with the evidences thereof. Code, s. 1456; 1871-2, c. 213, s. 9. 113. Representative denying claim, notice to creditor. Within five days thereafter the defendant shall state in writing on said list, or on a separate paper, which of said claims he disputes in whole or in part. The clerk shall then notify the creditor, as above provided, that his claim is disputed, and the creditor shall there- iipon file in the office of the clerk a complaint foimded on his said claim, and the pleadings shall be as in other cases. Code, s. 1457; 1871-2, e. 213, s. 10. 114. Issues joined, cause docketed for hearing. If the issues joined be of law, the clerk shall send the papers to the judge of the superior court for trial, as is provided for by the chapter on Civil Procedure in like cases. If the issues shall be of fact, the clerk shall send so much of the record as may be necessary to the next term of the sxiperior court for trial. Code, s. 1458; 1871-2. c. 213, s. 11. 115. Costs paid by representative personally, when. If any personal representative shall deny the liability of his deceased upon any claim evidenced as is provided in this chapter, and the is.sue 27 115 ADMIXISTRATIOX— A'TVZ. Accoitnfing Compelled. Ch. 1 shall finally be decided against him, the costs of the trial shall he paid by him personally, and not allowed out of the estate, \niless it shall appear that he had reasonable cause to contest the claim and did so bona fide. Code, s. 1459; 1871-2, c. 213, s. 12. Note. See s. 97. 116. Representative failing to appear, procedure. If the per- sonal representative shall fail to appear on the return day, the clerk or judge of the superior court may permit him afterward to appear and plead on such terms as may be just. Code, s. 1460; 1S71-2, c. 213. s. 13. 117. Clerk to state an account. Immediately after the return da}' the clerk or judge shall proceed to hear such evidence as shall be brought before him, and to state an account of the dealings of the personal representative with the estate of his deceased according to the course of his court. Code, s. 1461; 1871-2, c. 213. s. 14. 118. Account stated; examined; excepted to; signed. After the clerk shall have stated the account and prepared Iiis report, he shall notify all the parties to examine and except to the same. Any party may then except to the same in whole or in part. The clerk shall then pass on the exceptions and prepare and sign his final report and judgment, of which the parties shall have notice. Code, s. 1462; 1871-2, c. 213, s. 15. 119. Either party may appeal; security given for costs. Any party may appeal from a final judgment of the clerk to the judge of the superior court in term time, on giving an undertaking with surety, or making a deposit, to ])ay all costs which shall be recovered against him. If any creditor shall appeal and give such security, his appeal .shall be deemed an appeal by all who are damaged by the judgment, and no other creditor shall be required to give any imdertaking. Code, s. 1464: 1871-2. c. 213, p. 17. 120. Papers filed; cause docketed for trial, on an appeal the clerk shall file his report anrsiins as would be his ne.xt of kin if all such children had been born in lawful wedlock. Code, s. 1487; 1808-9, c. 113, s. 58. XIX. AfTEK-BORX CniLDKEX. 138. Share in realty, in what allotted. The .share of an after- burn child in real estate sliall bo allotted to him out of any lands not devised, if there be enough for that ]iuri)ose; and if there be none undevised, or not enough, then the whole share, or the defi- ciency, as the case may be, shall be made up of the lands devised ; and so much thereof shall be taken from the several devisees accord- 138 ADMINISTRATION— X7A'. Afier-hom Children. Ch. 1 ing to tlieir resjjective values, as near as may be convenient, as will make the proper share of such child. Code, s. 1536; 1808-9, c. 113, s. 108. 139. Share in personalty, in what allotted. The share of an after-born child in the personal estate shall be paid and delivered to him out of any such estate not bequeathed, if there be enough for that purpose ; and if there be none undisposed of, or not enough, then the whole share, or the deficiency, as the case may be, shall be made up from the estate bequeathed ; and so much shall be taken from the several legacies, according to their respective values, as will make the proper share of such child. Code, s. 1537; 1868-9, c. 113, s. 109. 140. Share in personalty, when allotted in proceeds of realty. If, after satisfaction of the child's share of real estate out of unde- vised lands, there be a surplus of such lands, and there be no per- sonal estate undisposed of, or not enough to make up his share of such estate, then the surplus of undevised land, or as much as may be necessary, shall be sold and the proceeds applied to making \ip his share of personal estate. And if, after satisfaction of the child's share of personal estate out of property undisposed of by the will, there be a surphis of such jDroperty, then the surplus thereof shall be applied, as far as it will go, in exoneration of land, both devised and descended; and the same shall be set apart and secured as real estate to such child, if an infant non compos or feme covert. Code, s. 1538; 1868-9, e. 113, s. 110. 141. Decree of contribution for share In realty, effect of. Upon the allotment to such child of any real estate in the manner afore- said, he shall thenceforth be seized thereof in fee-simple ; and the court shall give judgment severally, in favor of such of the devisees and legatees, of whose lands and legacies more has been taken away than in proportion to the respective values of said lands and legacies, against siich of said devisees and legatees, of whose lands and leg- acies 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 devises and legacies. Code. s. 1539; 1868-9, c. 113. s. 111. 142. When deemed legatee or devisee. An after-born child after such decrees shall be considered and deemed in law a legatee and devisee as to his portion, shall be styled as such in all legal proceedings, and shall l)e liable to all the obligations and duties by law imposed on such : Provided, that all judgments or decrees bona Rev. Vol. 1—2 33 142 ADMI:NTISTRATI0X— X/X. After-horn Children. Ch. 1 fide obtained against the devisees and legatees previously to the preferring of any petition, and which were binding upon or ought to operate upon the lands and chattels devised or bequeathed, shall be carried into execution and effect notwithstanding, and the jjeti- tioncr shall take his ijortion completely subject thereto: Provided further, that any suit instituted against the devisees and legatees previously to such petition 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 execution; but on the filing of the petition, during the pendency of such suit, the petitioner, by guardian, if an infant, may become a defendant in the suit. Code, s. 1540; 1S68-9, c. 113, s. 11-2. 143. If no petition filed, how estate settled. In case no petition shall be filed within two years, as herein prescribed, the executor or administrator with the will annexed, before he shall pay or deliver the legacies in the will given, or before paying to the next of kin of the testator any residue undisposed of by the will, shall call upon the legatees, devisees, heirs and next of kin, and the said after-born child, by petition in the superior court, to litigate their respective claims, and shall pray the court to ascertain the share to which said child shall be entitled, and to apportion the shares and sums to which the legatees, devisees, heirs or next of kin shall severally con- tribute toward the share to be allotted to said child, and the court shall adjudge and decree accordingly. Code, s. 1541; 1868-9, c. 113, s. 113. XX. Settlement. 144. Legacies and distributive shares; how recovered. Leg- acies and distributive shares may be recovered from an executor, administrator or collector by petition preferred in the superior court, at any time after the lapse of two years from his qualification, unless the executor, administrator or collector shall sooner file his final account for settlement. The suit shall be commenced and the proceedings therein conducted as prescribed in other cases of special jjroceedings. Code, s. 1510; 1868-0, c. 113, s, 83. 145. Distributive shares paid to clerk, when. It shall lie com- petent for any executor, administrator or collector, at any time after twelve months from the date of letters testamentary or of administration, to pay into the oflice of clerk of the superior court of the county where such letters were granted, any moneys belong- 145 ADMINISTRATION— XZ. Settlement. Cb. 1 r ing to the legatees or distributees of the estate of his testator or intestate, and such payment shall have the effect to discharge such executor, administrator or collector and bis sureties on his official bond to the extent of the amount so paid. Code, s. 1543; 1881, c. 305, s. 1. 146. Clerk to give receipt under seal, it shall be the duty of the clerk, in the cases provided for in the preceding section, to receive such money from any executor, administrator or collector, and to execute a receipt for the same under the seal of his office. Code, s. 1544; 1881, c. 305, s. 3. 147. Must be made at end of two years. No executor, admin- istrator or collector, after two years from bis qualification, shall hold or retain in his hands more of the deceased's estate than amounts to his necessary charges and disbursements and such debts as he shall legally pay ; but all such estate so remaining shall, iimnediately after the expiration of two years, be divided and be delivered and paid to the person to whom the same may be due by law or the will of the deceased. Code, s. 14S8; 1868-9, c. 113, s. 59. 148. What may be retained. If, on a final accounting before the judge or clerk, it appears that any claim exists against the estate which is not due, or on which suit is pending, the judge or clerk shall allow a sum sufficient to satisfy such claim, or the pro- portion to which it may be entitled, to be retained in the hands of the executor, administrator or collector, for the purpose of being applied to the payment when due or when recovered, with the expense of contesting the same. The order allowing such sum to be retained must specify the amount and nature of the claim. Code, s. 1489; 1868-9, c. 113, s. GO. 149. Commissions allowed; proviso. The clerks of the superior court are authorized and directed to allow commissions to execu- tors, administrators and collectors on filing their final accounts for settlement, not exceeding five per cent, upon the amoimt of receipts and expenditures, which shall appear to be fairly made in the course of administration ; and such allowance raa\ be retained out of the assets against creditors and all other persons claiming an interest in the estate. And the clerk, in making such allowance, shall con- sider the trouble and time expended in the management of the business : Provided, that in sales of land for payment of debts, commissions shall not be alloM'ed on any larger amount of the pro- ceeds than the sum actually applied in payment of debts: Provided further, that nothing in this section contained shall prevent any exec- 149 ADMINISTEATIOX— i'Z. Setilement. Ch. 1 utor, administrator or collector from retaining a reasonable sum for necessary charges and disbursements in the management of the estate. And any judge of the superior court or any commissioner appointed by said court to take and state an account of the assets of any deceased person in the hands of an executor, administrator or collector, upon any plea of fully administered, shall have power and be authorized and directed to allow such executor, administrator or collector not exceeding five per cent, upon the amount of receipts and expendi- tures which shall appear upon the trial of said cause or taking of such account to have been fairly made in the course of adminis- tration. Code, s. 1524; 1868-9, e. 113, s. 95; 1869-70, c. 189. 150. Petition may be filed for. An executor, administrator or collector, who has filed his final account for settlement, may, at any time thereafter, file his petition against the parties interested in the due administration of the estate, in the superior court of the county in which he qualified, or before the judge in term time, setting forth the facts, and praying for an account and settlement of the estate committed to his charge. The petition shall be ]iro- ceeded on in the manner prescribed by law, and, at the final hear- ing thereof, the judge or clerk may make such order or decree in the i^remises as shall seem to be just and right. Code, s. 1525; 1868-9, c. 11.3, s. 96. 151. Fund due absent party or infant without guardian paid to court; party not heard of in seven years, procedure. When any balance of money or other estate which is due an absent defend- ant or infant without guardian is found in the hands of an execu- tor, administrator or collector who has preferred his petition for settlement, the court or judge may direct such money or other estate to be paid into court, to be invested upon interest, or other- wise managed under the direction of the judge, for the use of such absent pei-son or infant. When the party entitled to the money has not been heard of for seven years or more the fund shall be distributed among the next of kin of the absent deceased person as prescribed by statute, in the following manner : An administrator shall be appointed aiid made a party to a special j^roceediug in which a verified petition shall be filed setting forth the facts, with names of the parties entitled, and such other evidence as may be req\iired by the clerk in whose office said fund was deposited, and the proceedings conducted as other special proceedings; and the order disposing of the ivmd shall be approved and confirmed by the judge, either in term or at chambers. Code, s. 1526; 1893, c. 317; 1868-9, c. 113, s. 97. 152 ADMINISTRATION— ZZ. Settlement. Ch. 1 152. Liability and compensation of clerk. Every clerk of the superior court who may be intrusted with money or other estate in such case shall be liable on his official bond for the faithful dis- charge of the duties enjoined upon him by the judge in relation to said estate, and he may receive such compensation for his serv- ices as the judge may allow. Code, s. 1527; 1868-9, e. 113, s. 98. 153. When paid to university. All sums of money, or other estate of whatever kind, which shall remain in the hands of any executor, administrator or collector for five years after his qualifi- cation, unrecovered or unreclaimed by suit, by creditors, next of kin, or others entitled thereto, shall be paid by the executor, administra- tor or collector to the trustees of the university of North Carolina; and the said trustees are authorized to demand, sue for, recover and collect such moneys or other estate of whatever kind, and hold the same without liability for profit or interest, until a just claim there- for shall be preferred by creditors, next of kin, or others entitled thereto ; and if no such claim shall be preferred within ten years after such money or other estate be received by the said trustees, then the same shall be held by them absolutely. Code, s. 1504; 1868-9, e. 113, s. 76. 154. Who parties to proceeding for settlement. In all actions and proceedings by administrators or executors for a final settle- ment of their estates and trusts, whether at the instance of distribu- tees, legatees or creditors or of themselves, if the personal represent- ative die or be removed pending such actions or proceedings, the administrator de bonis non or administrator with the will annexed, as the case may be, shall be made party as provided in other cases, or in such way as the court may order, and the action or proceeding shall be conducted to its end, and such judgitient shall be rendered on the confirmation of the report, or upon the terms of settlement, if any shall be agreed upon by the parties, as will fully protect and discharge all parties to the record. 1893, e. 206. 155. Legacies ordered paid within two years, when. It shall be in the power of the judge or court, on petition or action, within two years from the qualification of an executor, administrator or collector, to adjudge the payment in full or partially, of legacies and distributive shares, on such terms as the court shall deem proper, when there shall be no necessity, for retaining the fund. Code, s. 1512. 156 ADMII^ISTEATIOX— A'A'7. Actions hy and against. Vh. 1 XXI. Actions By and Against Representative. 1 56. Right of action survives to. and against. Upon the death of any person, all demands whatsoever, and rights to prosecute or defend any action or special proceeding, existing in favor of or against such person, except as hereinafter provided, shall survive to and against the executor, administrator or collector of his estate. Code, s. 1490; 1868-9, c. 113, s. 63. Xote. For action for wrongful death, see ss. 59, 60. 157. Actions which do not survive. The following rights of action do not survive: 1. Causes of action for libel and for slander, except slander of title. 2. Causes of action for false imprisonment, assault and battery, or other injuries to the person, -where such injury does not cause the death of the injured party. 3. Causes where the relief sought could not be enjoyed, or granting it would be nugatory, after death. Code, s. 1491; 1868-9, c. 113, s. 64. 158. Right of action survives to successor. Executors and administrators shall have actions in like manner as the first testator or intestate might have had against any person, his executors and administrators, in all cases, except where such actions, being com- menced, are not allowed by statute to be revived on the death of any party. Code, s. 1497; 1868-9, c. 113, s. 69; 1905, c. 286. 159. (Way maintain any appropriate action to recover assets. Executors, administrators or collectors may maintain any appro- priate action or proceeding to recover assets, and to recover posses- sion of the real property of which executors are authorized to take possession by will; and to recover for any injury done to such assets or real property at any time subsequent to the death of the decedent. Code, s. loOl; 1868-9, c. 113, s. 73. 160. iVIust be in representative capacity. All actions and pro- ceedings brought by or against executors, administrators or collec- tors, upon any cause of action or right to which the estate is the real party in interest, must be brought by or against them in their representative capacity. Code, s. 1.507; 1868-9, c! 113. s. 79. 161. Appearance by. or service on. one binds all. In actions against several executors, administrators or collectors they are all 161 ADMIK'ISTEATIOX— XX/. Actions hy and against. Ch. 1 to be considered as one person, representing the decedent ; and if the summons is served on one or more, but not all, the plaintiff may proceed against those served, and if he recovers, judgment may be entered against all. Code, s. 1508; 1868-9, c. 113, s. 81. 162. Action against, when; execution issues, how. An action may be brought by a creditor against an executor, administrator or collector on a demand at any time after it is due, but no execution shall issue against the executor, administrator or collector on a judgment therein against him without leave of the court, upon notice of twenty days and upon proof that the defendant has refused to pay such judgment its ratable part, and such 'judginent shall be a lien on the property of the defendant only from the time of such leave granted. Code, s. 1509; 1808-9, c. 113, s. 82. 163. Service by publication, when. Whenever process may issue against an executor who has not given bond, and the same can not be served upon him by reason of his absence or concealment, service of such process may be made by publication in the manner pre- scribed in other civil actions. Code. s. 1.523; 1808-9, c. 113, s. 94. 164. Successor may issue execution, when. Any executor, administrator or collector may have execution issued on any judg- ment recovered by any person who preceded him in the adminis- tration of the estate, or by the decedent, in the same cases and the same manner as the original plaintiff might have done. Code, s. 1513; 1808-9. c. 113, s. 84. 165. Letters revoked, action continues. In case the letters of an executor, administrator or collector are revoked, pending an action to which he is a party, the adverse party may, notwithstand- ing, continue the action against him in order to charge him per- sonally. If such party does not elect so to do, within six months after notice of such revocation, the action may be continued against the successor of the executor, administrator or collector in the ad- ministration of the estate, in the same manner as in case of death. Code, s. 1514; 18G8-9, c. 113, s. 85. XXII. Miscellaneous Peovisions. 166. How personal representatives hold. Every estate vested in executor.?, administrators or collectors, as such, shall be held by them in joint tenancy. Code, s. 1502; 1868-9, c. 113, s. 74. 39 167 ADMIXISTRATIOX— XZ7/. Miscel Provisions. Cb. 1 • 167. Personal representative liable. The executors and admin- istrators of persons, who, as rightful executors or as executors in their own wrong, or as administrators, shall waste or convert to their own use any estate or assets of any person deceased, shall be charge- able in the same manner as their testator or intestate might have been. Code, s. 1495; 1868-9, c. 113, s. 68. 168. Bona fide administration under act of 1868-9 validated. If any person shall have bona fide administered any estate or any part of the estate of any deceased person whereof original adminis- tration was granted prior to the first day of July, under the said act of one thousand eight hundred and sixty-eight and one thousand eight hundred and sixty-nine, lie shall not be deemed guilty of a devastavit. Code, s. 1434; 1869-70, c. 58, s. 2. 169. Time in which act to be done may be extended. If no length of notice, or no time for the doing of an act, is stated in this chapter, the time shall be reasonable, and in any case it may be enlai-ged by the clerk from time to time, or by the judge of the superior court, on application to him or on appeal to him from the clerk. Code, s. 1463; 1871-2, c. 213, s. 16. 170. Powers under will not affected; proviso. Xothing in this chapter shall be construed to affect the discretionary powers, trusts and authorities of an executor or other trustee acting under a will : Provided, creditors be not delayed thereby, nor the order changed in which by law they are entitled to be paid. Code, s. 1415; 1868-9, c. 113, s. 23; R. C, c. 46, ss. 12, 13. 171. Causes transferred to superior court, when. All cases for the sale of real estate for assets heretofore in the co\inty courts, in which final orders for collection and application or distrib\ition of purchase money and making titles were not made before the adoption of the present constitution, may, at the instance of any person interested, be transferred, as other cases, to the superior court of the county where such proceeding was pending, and such court shall have i\\\\ authority to make all necessary orders to complete the same. Code. s. 1542; 1871-2, c. 161. 172. Estates prior to certain dates. This chapter shall apply to the estates of such deceased persons only whereof original admin- istration has been granted subsequent to the first day of July, one 172 ADMINISTEATIOIS"— XX//. Miscel Provisions. Ch. 1 thousand eight hundred and sixty-nine, and all estates whereon administration was granted prior to the said first day of July, one thousand eight hundred and sixty-nine shall be dealt with, admin- istered and settled according to the law as it existed just prior to said date, and it is hereby declared that such is the true intent and meaning of this chapter: Provided, that nothing herein shall be construed to prevent the application of this chapter so far as it relates only to the courts having jurisdiction of any action or proceeding for the settlement of an administration or to the practice and pro- cedvire therein. Code, s. 1433; 1809-70, c. 58, s. 1. 173. To what estates this chapter applicable. This chapter shall apply only to cases where the grant of letters of collection or of probate or of administration shall have issued on or after the first day of July, one thousand eight himdred and sixty-nine, except in case of administrations de bonis non upon estates where the former letters of administration or letters testamentary were granted j^rior to the first of July, one thousand eight hundred and sixty-nine, in all which cases estates shall be administered, closed up and settled according to the law as it existed just prior to the first of July, one thousand eight hundred and sixty-nine. Code, s. 1476; 1871-2, c. 213, s. 29; 1872-3, e. 179. Note. To compel surviving partner to settle, see Partnership. How administrators or executors charge their own estate, see a. 974. CHAPTER 2. ADOPTION OF MINOR CHILDREN. (Sections 174—181.) 174. Petition filed before clerk, what to contain. Any person desiring to adopt any minor child may file a petition in the superior court of the county wherein such child resides, setting forth the name and age of such child and the name of its parents, whether the parents or either of them be living, and if there be no living parent, the name of the guardian, if any, and if there be no guardian, the name of the person having charge of the child or with whom such 174 ADOPTIOX OF MINOR CHILDKEX. Ch. 2 child resides, the amount and nature of the child's estate, if any, and especially if the adoption is for the minority or for the life of the child. Code, s. 1; 1872-3, e. 155. 175. Parties to proceeding. The parent or guardian, or the per- son having charge of such child, or with whom it may reside, mxist be a party of record in this proceeding. Code, s. 6; 1S72-3, c. 155, s. 6. 1 76. Letters of, when granted. Upon the filing of such petition, and with the consent of the parent or parents, if living, or of the guardian, if any, or of the person with whom such child resides, or who may have charge of such child, the court may, if the petitioner be a proper and suitable person, sanction and allow such adoption by an order granting letters of adoption. Code, s. 2. 177. Effect of order; child to inherit, when; name changed. Such order, when made, shall have the effect forthwith to establish the relation of parent and child between the petitioner and the child during the minority or for the life of 'such child, according to the prayer of the petition, with all the duties, powers and rights belong- ing to the relationship of parent and child, and in case the adoption be for the life of the child, and the petitioner die intestate, such order shall have the further effect to enable such child to inherit the real estate and entitle it to the personal estate of the petitioner in the same manner and to the same extent such child would have been entitled to if such child had been the actual child of the person adopting it : Provided, such child shall not so inherit and he so enti- tled to the personal estate, if the petitioner specially set forth in his petition such to be his desire and intention : Provided further, for proper cause shown in said petition the court may decree that the name of such child may be changed to that of tlic petitioner. Code, s. 3; 1885, c. 390; 1872-3, c. 155, s. 3. 178. Bond to secure orphan's property, if sudi child be an orphan and without guardian, and shall be possessed of any estate, the court shall require from the petitioner such bond as is required by law to be given by guardians. Code, s. 4. 179. Clerk to record order; revocation. The order granting letters of adnptinn sliall he recorded in the office of the clerk of the superior court of the county in which it is made, and may be revoked at any time by the court for good cause shown. Code, 8. 5; 1872-3, e. 155, s. 5. 42 ISO ADOPTION OF MIXOE CHILDEEX. Ch. 2 180. Right to custody forfeited by abandonment. lu all cases where the surviving parent of any orphan child shall have wilfully abandoned the care, custody, nurture and maintenance of any orphan child to kindred, relatives or other persons, such parent shall be deemed to have forfeited all rights and privileges with respect to the care, custody and services of such child. 1885, c. 120, s. 1. 181. Restoration of rights and privileges. The rights and privi- leges of such parent may be restored by the voluntary surrender of such child by the person in whose care and custody such child may be, or by order of any judge of the siiperior court in the district in which such child may be, when it shall appear to the satisfaction of such judge that the interest and welfare of such child will not be materially prejudiced by such restoration. The person having the care and custody of any such child shall have at least ten days' notice of the time and jjlace of the hearing of the application for such order of restoration, and shall be permitted to resist the same. 188.3, c. 120, ss. 2, 3. Note. For contests over custody of children, see Habeas Corpus, s. 185.3. For effect of divorce on children, see Divorce and Alimony, s. 1570. For right of parent to determine custody of children by deed or ■will, see Guardian, s. 1762. For small allowance paid to indigent children bv clerk, in certain cases, see s. 924. CHAPTEE 3. ALIENS. (Sections 182—18.3.) 182. IVIay take and hold lands. It shall be lawful for aliens to take both by purchase and descent, or other ojjeration of law, any lands, tenements or hereditaments, and to hold and convey the same as fully as citizens of this state can or may do, any law or usage to the contrary notwithstanding. Code, s. 7: 1870-1, c. 255. 183. Prior contracts validated. All contracts to purchase or sell real estate by or with aliens, heretofore made, shall be deemed and taken as valid to all intents and purposes. Code, s. 8; 1870-1, c. 255, s. 2. 184 APPRENTICES—/. Poiver of Clerk. Ch. i CHAPTER i. APPRENTICES. Sections. I. Power of clerk, 184—189 II. The apprentice, 190—193 III. The employer. 194—196 IV. The indenture. 197—200 V. To learn a trade, 201—206 I. PowEE OF Clerk. 184. To apprentice, or send to orphanage. Upon comijlaint made in writing by three reputable citizens to the clerk of the superior court of any county that there is any infant in such county subject to any of the conditions enumerated in this chapter, it shall be the duty of the said clerk of the superior court upon ten days' notice to the complainants, and the parents or persons with whom such infant resides, to examine into the allegations of the said com- plaint, upon oath, aud if the said clerk of the superior court shall find upon such examination that the conditions set forth in such complaint are true, it .shall be the duty of said clerk in his discretion to procure for said infant admission into .some orjihan asylum in the state, or to bind out the said infant as an apprentice. 1889, c. 169, s. 2; 1901, c. 628. 185. To determine incapacity, desertion or drunkenness. Incapacity, desertion or drunkenness shall be decided before the clerk of the superior court upon application, as in special proceed- ings, when necessary. 1889, c. 169, s. 19. 186. IVIust examine persons as to circumstances; tradesmen of useful art preferred. On application of any person to have an apprentice bound to him, it shall be the duty of the clerk to inform himself of the circumstances of the case, and for this purpose he may cite before him the relatives of the orphan or infant for exami- nation on oath, and he may examine also such other persons as he may deem proper. In the selection of an employer, he shall prefer, so far as may be consistent in other resj^ect with the comfort and interest of the apprentice, some tradesman of a useful art or mys- tery. No white cliild shall be apprenticed to any other than a white person. 1889, c. 169, SB. 1, 8. 187 APPEENTICES— 7. Power of Clerk. Ch. 4 187. May modify; discharge apprentice and re-apprentice. The clerk shall have power, when circumstances require it, upon application of either the employer or the apprentice, to modify the indentures of an apprentice or to discharge him from his apprentice- ship ; and in case any money or other thing of value has been paid by either party in relation to such apprenticeship, the clerk shall make such order concerning the same as shall be just and reasonable ; and he shall have power where an apprentice is discharged to re- apprentice him, when such a course shall seem proper and practi- cable. 1889, e. 169, s. 13. 188. May direct disposition of wages. When money, wages or other thing of value is agreed to be paid to the apprentice, the clerk is empowered to direct such disposition of the same as shall seem to him just and proper; and in the case of money, he may either direct that so much be placed at the disposal of the apprentice as shall be proper, or so much paid to the parents of the apprentice for their use, or so much paid into the clerk's office to the credit of the said apprentice. 1889, e. 169, s. 5. 189. Guardian to be appointed wlien $100 in clerk's hands. Whenever as much as one hundred dollars shall come into the hands of any clerk of the superior court belonging to an apprentice by reason of the preceding section, it shall be his duty to appoint and qualify a guardian for the estate of said apprentice, and turn the said funds over to said guardian for investment; and the said guardian shall be appointed and qualiiied and be governed by the same rules and regtilations as guardians of said estate. 1889, c. 169, s. 6. Note. For payment by clerk to indigent child of estate less than twenty dol- lars, see s. 924. II. The ApPEEisrTicE. 190. Who may be apprenticed. Children who may be appren- ticed shall include: 1. All orphans whose estates are of so small value that no person will educate and maintain them for the benefit thereof. 2. All infants whose fathers have deserted their families and been absent six months, leaving them without sufficient support. 3. Any poor child who is or may be chargeable to the county or shall beg alms. 190 APPEEXTICES— //. The Apprentice. Cli. 4 4. Any child who has uo father, and the mother is of bad char- acter, or suffei's her children to grow up in habits of idleness, with- out any visible means of obtaining an honest livelihood. 5. All infants whose parents do not habitually employ their time in some honest, industrious occupation. 6. All indigent infants under sixteen years of age who, on account of the neglect, crime, drunkenness, lewdness or other vice of the parents, or person with whom such infants reside, are in circum- stances exposing such infants to lead an idle and dissolute life. 1889, c. 169, s. 2; 1901, c. 628. 191. May make complaint of ill usage, violation of indenture; duty of clerk. Upon the complaint of any apprentice that his employer is guilty of cruelty or ill usage toward said apprentice, or refuses him necessary i^rovisions or clothing, or violates any other stipulation of the indenture or of the law toward such an appren- tice, the clerk may, by order, compel the appearance of the said employer before him, when he shall examine and determine the complaint, and if the same is well founded, he shall cancel the indenture and discharge such apprentice from his obligation of service, and may proceed to apprentice the discharged infant to some other employer. 1889, 0. 109, s. 10; 1762, c. 09, ss. 19, 20. 192. Compelled to serve. If an apprentice refuses to serve as required by the indenture or by law, the clerk may, on application of the employer, compel him by citation or otherwise to appear for inquiry into the facts and if the complaint is well founded and the apprentice persists in such refusal, the clerk may commit him by warrant to the house of correction or to the common jail of the county until he consents. 1889, e. 109, s. 9. 193. Person enticing away apprentice, penalty. If any person shall entice away an apprentice from his employer, he shall jiay therefor three dollars for every day the apprentice shall remain out of the service of the said employer ; and any person who shall knowingly conceal, harbor or employ such an apprentice shall in like manner pay the employer therefor three dollars per day for every day such apprentice shall be concealed, harbored or employed. 1880, c. 109, s. 15. Til. The Emi'i.oveh. 194. Shall provide, what. Whcncvir an indigent child shall be apjirenticed, his ciiipldver shall, in the indenture, agree to provide 194 APPEENTICES— 777. The EmpJoijer. Ch. 4 (1) diet, clothes, lodging and accommodations fit and necessary; (2) that the apj^rentice be taught to read and write and the rules of arithmetic to the double rule of three; (3) six dollars in cash, a new- suit of clothes and a new Bible at the end of the apprenticeship; (4) such other education as may be agTeed upon and inserted in the indenture by the clerk; (5) the clerk shall also insert in the indenture the amount of money or other thing of value to be paid to the appren- tice by his employer annmilly during the continuance of the appren- ticeship, so that the indenture will show the compensation to be paid the apprentice for each year's service. 1889, c. 109, s. 4. 195. Annual report made by, to clerk. Employers of apprentices shall be required iu the indentures made before the clerk to make a report anniially to him as to whether the stipulations in the inden- ture have been jjerformed or not, as required in the same, in which shall be set forth the amoiuit to be paid, and the amount actually paid said apprentice, and also the progress and general condition of the apprentice, inchiding his moral, mental and physical condi- tion ; which report shall be required under the same pains, penalties and regulations as is required of guardians. The said employer shall also, at the end of the apprenticeship, make a final report to the clerk as to the apprenticeship as guardians are required to do. 1889, c. 169, s. 7. 196. Shall not remove apprentice from state; indenture can- celled, when. It shall not be lawful for an employer to remove an apprentice out of this state, and whenever any employer of an apprentice shall wish to remove out of this state, or to qiiit his trade or business, he shall ajipear with his apprentice before the clerk of the projier coimty, and if the clerk be satisfied the employer has done justice to the said apprentice for the time he has had charge of him, he shall have power to discharge such apprentice from the service of such employer and again bind him, if necessary, to some other person. 1889, c. 169, s. 14. IV. The Indenture. 197. In name of clerk and employer. Indigent children when apprenticed shall be indentured iu the name of the superior coiirt clerk of the county where they reside, of the first part, and the employer to whom apprenticed, of the other part. 1889, c. 169, s. 1. 198. For what time apprenticed. Indigent male children may be apprenticed till the age of twenty-one, and females till the age 198 APPEEXTIC'ES— /T'. Tlie Indeniure. Ch. 4 of eighteen ; but said cliildren shall be apprenticed for a less number of years, whenever in the opinion of the clerk the best interests of the apjjrentice will be subserved thereby. The age of children when apprenticed shall always be inserted in the indenture. 1889, c. 169, s. 3. 199. Relator in action on indenture; limitation. The apprentice may bring an action on the indenture in the name of the clerk and his successors in office and recover any damages sustained by reason of the breach of the covenants contained in said indenture; bxit no action on an indenture shall be commenced after two years from the expiration of the term of service. 1889, c. 169, s. 11. 200. Indentures to be registered by register of deeds. Every indenture binding an apprentice to be eifectual shall be proved and recorded in the register of deeds' oifiee of the count.y where the par- ties thereto reside, as deeds and conveyances, and shall be subject to the same rules of evidence as deeds and conveyances. 1889, c. 169, s. 20. V. To Leakn a Tkade. 201. Who may be apprenticed. Minor children above the age of fourteen and under twenty-one years being males, and eighteen being females, whether indigent or not, may be apprenticed to learn the art or mystery of any trade or craft by their father, or in case of his death, incompetency, or where he shall have wilfully aban- doned his family for six months without making sxiitable provisions for their support, or has become an habitual drunkard, by their mother or by their legal guardian ; and if illegitimate, they may be bound by their mother, and if they have no parent competent to act and no guardian, they may bind themselves with the approbation of the superior court clerk of the county where they reside; but the power of a mother to bind her children, whether legitimate or illegiti- mate, shall cease upon her subsequent marriage and shall not be exercised by herself or her husband at any time during such mar- riage. But no white child shall be boimd to any otlior tlian a white person, and no negro cliild shall be bound to any white person if a competent and suitable negTo can be found in the county who desires such child bound to him. 1889, c. 169, s. 17. 202. Apprentices over fourteen to sign indenture. Wh.n an apprentice is bound who is over fourteen years of age, as provided in the foregoing section, his or her consent shall be expressed in the 48 202 APPKENTICES— y. To Learn a Trade. Ch. 4 indenture and testified to by signing the same, and the age of said apprentice shall also be inserted in said indenture. 1889, c. 1G9, s. IS. 203. Orphan asylum may execute indentures. Any orphan asy- lum, or charitable institution organized and incorporated for the purpose of taking care of indigent children under any general or special law of this state, is hereby authorized and empowered to execute indentures apprenticing children in their charge for the purpose of learning trades, the said children being fourteen years of age, and they shall have the same rights and assume the same liabilities thereunder as in case of natural persons. 1889, e. 169, s. 21. 204. What indenture to contain. All indentures apprenticing minors to learn trades shall contain the following covenants and provisions : 1. That said minor shall be bound to serve his emploj'er for a term of not less than three nor more than five years. 2. That said minor so indentured shall not leave his said employer during the term for which he shall be indentured, and if any appren- tice so indentured as aforesaid shall leave his employer except as hereinafter provided, the said emijloyer may compel the return of said apprentice under the penalties of this chapter. 3. That said employer shall covenant and agree in said indenture as to the compensation which is to be given the apprentice annually, specifying board, medical attention, lodging and clothes, when they are to be given, and also the wages to be paid in money and at what periods to be paid, and to whom. 4. That the said employer shall teach, or cause to be carefully and skillfully taught, to said apprentice every branch of the busi- ness to which he is indentured. 5. That said employer shall, at the expiration of said apprentice- ship, give to said apprentice a certificate in writing stating that said apprentice has served a full term of apprenticeship of not less than three nor more than five years at such trade or craft as may be specified in said indenture. 6. That if either the employer or the apprentice, during the con- tinuance of the apprenticeship, shall be unavoidably prevented from performing any of the conditions of the indentui'e and a settlement with respect to the same can not be made by the i_>arties to the inden- ture, the matter shall be referred to arbitrators for settlement, one to be selected by the employer and one on the part of the apprentice, and if they can not decide the controversy, the two arbitrators chosen 20-i APPREXTICES— T'. To Learn a Trade. Ch. 4 to select a third, and the decision of any two of said arbitrators to be final as to the matters in controversy. 1889, c. 169, s. 22. 205. Apprentice compelled to serve, how. Any apprentice, so indentured, who shall leave his employer withont his consent, or with- out sufficient cause, and shall refuse to return, may be arrested upon complaint of said employer and taken before any justice of the peace of the county where the employer resides, and said justice of the peace may order said indentures cancelled, and on conviction may commit said apprentice to the honse of correction or county jail imtil said apprentice agrees to abide by the indenture, which shall not exceed thirty days; and in case said apprentice so indentured shall still wilfully neglect or refuse to perform his j^ortion of the contract as specified in said indenture, then said indenture may be cancelled in the manner aforesaid, and said apprentice so violating said indenture .shall forfeit all back pay and all claims against said employer: Provided, either party shall have right of appeal. 1889, c. 169, s. 23. 206. Employer falling to teach apprentice liable for damages and a penalty. Sho\ild any employer neglect ur refuse to teach or cause to be taught to said apj^rentice the art or mystery of the trade or craft to which said apprentice has been indentured, or fail to perform any of the stipulations of the indenture, said apprentice, by his parent, guardian or next friend, may bring an action against said employer to recover damages sustained by reason of said neg- lect or refusal ; and if proved to the satisfaction of the court, said court shall direct said indenture to be cancelled and may imiiose a penalty on said employer not exceeding three hundred dollars and not less than fifty dollars, and said penalty shall be Cdllected aud ]xud over to said apprentice or his parent or guardian for his sole use and benefit. 1889, c. 169, 8. 24. Note. For wilful violation of duty to an apprentice by his employer, see Crimes. 207 ATTOEXEYS AT LAAV— /. How Licensed. Cli. 5 CHAPTEK 5. ATTORNEYS AT LAW. Sections. I. How licensed, 207—210 II. Debarred. 211—212 III. Relation to client, 213—215 IV. Arguments, 246 I. How Licensed. 207. Examination. Xo person shall practice law without tirst obtaining license so to do from the supreme court. Applicants for license shall be examined only on the first Monday of each term of the supreme court. All examinations shall be in writing, and based upon such course of study, and conducted under such rules, as the court may prescribe. All applicants who shall satisfy the court of their competent knowledge of the law shall receive license to practice in all the courts of this state. Code, s, 17; R. C, c. 9, s. 1; 1818, c. 963, s. 3. 208. Conditions precedent to examination. Before being al- lowed to stand an examination each applicant must comply with the following conditions : 1. He must be at the time twenty-one years of age, or will arrive at that age before the time for the next examination. 2. He must file with the clerk of the court a certificate of good moral character sigiied by two attorneys who practice in that court. An applicant from another state may have such certificate signed by any state officer of the state from which he comes. 3. He must deposit with the clerk twenty-one dollars and fifty cents. Of this sum one dollar and fifty cents shall be retained by the clerk. If the applicant obtains license the remaining twenty dollars shall be paid by the clerk to the librarian fur use of the supreme court library. If the applicant fails on examination the twenty dollars shall be repaid him. Code, s, 18; R. C, c. 9, s. 2 ; 1777, c. 115, s. S. 209. Oath taken in open court. Attorneys l^efore they shall be admitted to practice law shall, in open court before a justice of the supreme or judge of the superior court, take the oath prescribed for attorneys, and also the oaths of allegiance to the state, and to support the constitution of the United States, prescribed for all public offi- cers, and the same shall be entered on the records of the court ; and, 209 ATTOENEYS AT LAW— 7. Hoiv Licensed. Ch. 5 upon such qualification had, aud oath taken, may act as attorneys during their good behavior. Code, s. 19; R. C, e. 9, s. 3 ; 1777. c. 115, s. S. 210. Persons disqualified. Xo clerk of the superior or supreme court, nor deputy or assistant clerk of said courts, nor sheriff, nor any justice of the peace, nor county commissioner shall practice law. Code, ss. 27, 28, 110: 1870-1, c. 90; 1883, c. 40G ; 1871-2, c. 120; 1880, c. 43; C. C. P., s. 424. Note. Persons above named practicing law guilty of misdemeanor, see Crimes. II. Debaered. 211. For crirne. jSTo per.son who shall have been duly licensed to practice law as an attorney shall be debarred or deprived of his license and right so to practice law, either permanently or tempo- rarily, unless he shall have been convicted, or in open court confessed himself guilty, of some criminal offense showing him to be unfit to be trusted in the discharge of the diities of his profession, and imless he shall be debarred according to the provisions of this chapter. Code, s. 26; 1870-1, c, 216, s, 4. 212. Failure to account to client. Whenever a final judgment has been recovered against an attorney at law for property received or money collected for his client, the clerk of the court shall retain such cause on the trial docket until the next term of such court begin- ning not less than ninety days after the rendition of such final judgment. If such judgment be not then satisfied, the judge pre- siding shall make an order, Avhich shall be entered on the records of the court, for such attorney to show cause, at a time and place to be named in such order, and upon the return thereof may make an order debarring such attorney at law from practicing law in any of the courts, and he shall thereby be debarred from so practicing. When any such judgment shall be rendered in the court of a jus- tice of the peace, and it is thereupon sought to debar an attorney at law imder this section, the cause shall be docketed on the civil issue docket of the superior court, and written notice served on such attorney ninety days before action by the court. Code, ss. 24, 23; 1881, e. 129. III. Relation to Client. 213. Authority filed or produced if requested. Every attorney who shall claim to enter an apjiearancc for any per.son shall, upon 213 ATTORNEYS AT LAW—///. Eelation to Client. Ch. 5 being required so to do, produce and file in the clerk's oifice of the court in which he shall claim to enter an appearance, a power or authority to that effect signed by the persons or some one of them for whom he is about to enter an appearance, or by some person duly authorized in that behalf, otherwise he shall not be allowed so to do : Provided, that when any attorney shall claim to enter an appearance by virtue of a letter to him directed (whether such letter purport a general or particular employment), and it shall be necessary for him to retain the letter in his own possession, he shall, on the pro- duction of said letter setting forth such employment, be allowed to enter his appearance, and the clerk shall make a note to that effect upon the docket. Code, s. 29; E. C, c. 31, s. 57 (16). 214. Failure to file complaint makes attorney liable for costs. When a jDlaintiff' shall be compelled to pay the costs of his suit in con- sequence of a failure on the part of his attorney to file his complaint in proper time, he may sue such attorney for all the costs by him so paid, and the receipt of the clerk may be given in evidence in support of such claim. Code, s. 22; R. C, c. 9, s. 5; 17S6, c. 253, s. 6. 215. Fraud renders liable for double damages. If any attorney shall commit any fraudulent practice, he shall be liable in an action to the party injured, and on the verdict passing against him, judg- ment shall be given for the plaintiff to recover double damages. Code, s. 23; R. C, c. 9, s. 6; 1743, e. 37. IV. Aeguments. 216. Control of, by court. In all trials in the superior courts there shall be allowed two addresses to the jury for the state or plaintiff and two for the defendant, except in capital felonies when there shall be no limit as to niimber. The judges of the superior court are also authorized to limit the time of argument on the trial of all actions, civil and criminal, except in capital felonies, but in no instance shall the time be limited to less than one hour on each side in misdemeanors, or to less than three hours on each side in other causes. Where any greater number of addresses or any exten- sion of time shall be desired, motion shall be made, and it shall be in the discretion of the judge to allow the same or not, as the inter- ests of justice may require. In jury trials the whole case as well of law as of fact may be argued to the jury. 1903, c. 433. 217 AFCTIOXEEKS. Ch. C CHAPTEE 6. AUCTIONEERS. (Sections 217 — 221.) 217. How appointed. Am- citizen of the state, desiring to exer- cise the business of an auctioneer, shall apply to the board of county commissioners of the county in which he proposes to carry on such business, and, upon his giving bond payable to the state of Korth Carolina, to be approved by said commissioners or other authority, conditioned that he will j^erform faithfully all the duties required of auctioneers, the sheriff shall issue to him a license to act as an auctioneer in said county for twelve months from the date of the license. The bond shall in no case be less than five hundred dollars, and if the applicant reside in an incorporated town or city having not less than thirty-five hundred nor more than five thousand inhabi- tants, said bond shall be one thousand dollars, and one thousand dollars additional for every additional five thousand inhabitants or fraction thereof amounting to thirty-five hundred and above. Code, s. 2281; 1889, c. 40; 1891, c. 576; R. C, c. 10, s. 1. 218. Duties; semi-annual accounts. It shall be the duty of such auctioneers, on the first days respectively of October and April, to render to the clerks of the superior court i>f their respective counties a true and jjarticular account in writing of all the moneys made liable to duty by law, for which any goods, wares, or merchandise may have been sold at aiiction, and also at private sale, where the price of the goods, wares and merchandise sold at private sale was fixed or agreed upon or governed by any previous sale at auction, of any goods, wares and merchandise of the same kind; which account shall contain a statement of the gToss amount of sales by them made for each particular person or company at one time, the date of each sale, the names of the owners of the goods, wares and merchandise sold, and the amount of the tax due thereon, which tax they shall pay as directed by law. AVliicli statement shall be subscribed by them and sworn to before the clerk of the said court, who is hereby authorized to administer the oath. And it shall be their further duty to account with and pay to the person entitled thereto the moneys received on the sales by them made. Code, s. 2282; R. C, e. 10, .s. 2. 219 AUCTIONEERS. Ch. 6 219. Penalty, acting without appointment. Xo person shall exercise the trade or business of an auctioneer, by selling any goods, ■wares or merchandise by auction or by any other mode of sale whereby the best or highest bidder is deemed to be the purchaser, unless such person shall be ajipointed an auctioneer pursuant to this chapter, on pain of forfeiting to the state for every such sale the sum of two hundred dollars, which shall be prosecuted to recovery by the solicitor of the district. Code, s. 2283; K. C, c. 10, s. 5. 220. To sales of what articles applicable. Xothing in this chapter shall extend to any sale by auction of goods, wares and merchandise made pursuant to and in execution of any order, decree or judgment of the courts of the United States or of this state; or made in consequence of any assignment of property and estate for the benefit of creditors ; or made by executors, administrators, col- lectors or guardians ; or made pursuant to any law touching the collection of any tax or duty, or sale of any wrecked goods; or to any article the product of the agriculture of this state, in its natural or unmanufactured state ; or to any species of stock or domestic animals ; or to any articles of household f urnitiTre, or farming uten- sils which have been in use ; but shall extend only to such articles of goods, wares and merchandise as are the ordinary subject of traffic and sale by merchants and traders. Code, s. 22S4; R. C, c. 10, s. 6. 221. Commissions; pay one per cent, to town. Auctioneers shall be entitled to such compensation as may be agreed upon, not exceeding two and a half per cent, on the amount of sales ; and auctioneers of incorporated toA^nis shall retain and pay one per cent, of the gross amount of sales to the commissioners or other authority of their respective towns. Code, s. 2285; R. C, c. 10, s. 7. 222 BAIS^KS— /. Creation. Ch. 7 CHAPTER 7. BANKS. Sections. I. Creation. 222—227 II. Powers and duties, 228 — 234 III. Stockholders, 23.5—239 IV. Corporation comauission, 240 — 245 V. Bank examiners, 246—251 I. Ckeation. 222. How incorporated. Any number of persons, not less than three, who may be. desirous of forming a company, and engaging in the business of establishing, maintaining and operating banks of discount and deposit to be known as commercial banks, or of engag- ing in the business of establishing, maintaining and operating offices of loan and deposit to be known as savings banks, or of establishing, maintaining and ojDerating banks having departments for both classes of business, shall be incorporated in the manner following, and in no other way; that is to say, such persons shall, by a certificate of incorporation, under their hands and seals, set forth : 1. The name of the corporation; no name shall be assumed already in use by another existing corporation organized under the laws of this state or of the Congress, or so nearly similar thereto as to lead to uncertainty or confusion. 2. The location of its principal office in the state. 3. The nature of its business, whether that of commercial bank, or savings bank, or both. 4. The amount of the total authorized capital stock, the number of shares into which it is divided, and the par value of each share, which shall be either fifty dollars or one lumdred dollars ; the amoimt of capital stock with which it wilh commence business, which shall not be less than five thousand dollars in cities and towns of fifteen iiundred population or less ; nor le.ss than ten thousand dollars in cities and towns whose population exceeds fifteen hundred but does not exceed five thousand ; nor less than twenty-five thousand dol- lars in all other places; the population to be ascertained by the last preceding national census; and if there be more than one classs of stock, a description of the diiTerent classes, with the terms on which the respective classes of stock are created. 5. The names and postoffice addresses of the subscribers for stock and the number of shares subscribed by each; the aggregate of such 222 BANKS— 7. Creation. Cb. 7 subscriptions shall be the amount of the capital stock with which the company will ci;immence business. 6. The period, if any, limited for the duration of the company. 1903, c. 275, ss. 1, 2; 1901, c. 7G9. 223. Certificates of incorporation; how signed, proved and filed. The certificate of incorporation shall be signed by the origi- nal incorporators, or a majority of them, and shall be proved, or ac- knowledged, before an officer duly authorized under the laws of this state to take the proof or acknowledgment of deeds. Such certifi- cate of incorporation, when so proved, shall be filed in the office of the secretary of state, Avho shall, if the same shall be in accord- ance with law, thereupon cause the same to be recorded in his office in a book to be kept for that purpose, and known as the Cor- poration Book, and he shall, upon the payment of the organiza- tion tax and fees, certify under his official seal two copies of the said certificate of incorporation and probates, one of which shall be forthwith recorded in the office of the clerk of the superior court of the co\inty where the principal office of said corporation in this state shall, or is to be, established, in a book to be known as the Record of Incorporations, and the other certified copy shall be filed in the office of the corporation commission, and thereupon the said persons shall become a body politic and corporate under the name stated in such certificate. The said certificate of incorporation, or a copy thereof d^ily certified by the secretary of state or by the clerk of the superior court of the county in which the same is re- corded, or by the clerk of the corporation commission, imder their respective seals, shall be evidence in all courts and places, and shall, in all judicial proceedings, be deemed prima facie evidence of the complete organization and incorporation of the company purporting thereby to have been established. 1903,' c. 275. s. 3; 1901, c. 2, s. 9; 1903, c. 343. 224. Payment of capital stock. At least fifty per cent, of the capital stock of every bank shall be paid in in cash before it shall be authorized to commence business and the remainder of the capital stock of such bank shall be paid in monthly instalments of at least ten per cent, in cash of the whole of the capital, payable at the end of each succeeding month from the time it shall be authorized by the corporation commission to commence business, and the pay- ment of each instalment shall be certified to the corporation commis- sion, under oath, by the cashier or president of the bank. 1903, c. 275, s. 10. 225. statement filed before beginning business. Before such company shall begin the business of banking there shall be filed 225 BAXKS— Z. Creation. Ch. 7 with the corporation coimuission a statement under oath, by the cashier or president, containing the names of all of the directors and officers, with the date of the election or appointment, term of office, residence and postoffice address of each, the amount of capital stock of which each is the owner in good faith, and the amount of money paid in on account of the capital stock. Xothing shall be received in payment of capital stock but money. 1903, c. 275, ss. 5, 10. 226. Authorized to begin business, when and how. If from such statement, or upon an examination, if such examination appears necessary, it appears to the corporation coimnission that such cor- poration is lawfully entitled to commence the business of banking, it shall, within thirty days after the filing of the certificate required by law, give to such corporation a certificate signed by the chairman of the corporation commission, attested by the secretary of the com- mission, that such corporation has complied with all the provisions required to be comj^lied with before commencing the business of banking and that such corporation is authorized to commence such business. 1903, c. 275, s. 7. 227. Authority to begin business withheld, when. The corpo- ration commission may withhold from any bank its certificate author- izing the commencement of business whenever it has reason to be- lieve that the stockholders have formed the same for any other pur- pose than the legitimate objects contemplated by this chapter. 1903, c. 275, s. 6. II. Powers and Duties. 228. Powers, in addition to the j^owers conferred by law upon private corporations, banking corporations shall have power — 1. To exercise by its board of directors or duly authorized officers or agents, subject to law, all such ^lowers as shall be necessary to carry on the business of banking, by discounting and negotiating promissory notes, drafts, bills of exchange and other evidences of debts, by receiving deposits, by buying and selling exchange, coin and bullion, by loaning money on personal security or real or per- sonal property. Such corporation at the time of making loans or discounts may take and receive in advance such interest as may be agreed upon not exceeding the legal rate. 2. To ]uirchase, liold and convey real estate for the following ]iur- poses : 1st. Such as shall be necessary for the convenient transaction of its business, including with its banking offices other apartments to 228 BANKS—//. Powers and Duties. Ch. 7 rent as a source of income, -which investment shall not exceed twenty- five per cent, of its paid-in capital stock and permanent surplus: Provided, that this provision shall not apply to any such investment made before the ninth day of !March, one thousand nine hundred and three. 2d. Such as is mortgaged to it in good faith by way of security for loans made or money due to such bank. '■id. Such as is conveyed to it in satisfaction of debts previously contracted in the course of its dealings. ■ith. Such as it acquires by sale under execution or judgment of any court in its favor. 1003, c. 275, ss. 8. 0. 229. When bank may purchase its stock. Xo bank shall be the holder as pledgee or as purchaser of any portion of its capi- tal stock, unless such purchase shall be necessary to prevent loss upon a debt previously contracted in good faith. 1903, c. 275, s. 1. 230. Reorganization. Whenever any bank, under the laws of this state or of the United States, is authorized to dissolve and shall have taken the necessary steps to effect dissolution, it shall be lawful for a majority of the directors of such bank, upon the a^ithority in writing of the owners of two-thirds of its capital stock, with the approval of the corporation commission, to execute articles of incor- poration as provided in this chapter, which articles, in addition to the reqiiirements of law, shall further set forth the authority derived from the stockholders of such dissolved national bank or state bank, and upon filing the same as hereinbefore provided for the organ- ization of banks, the same shall become a bank under the laws of this state, and thereupon all assets, real and personal, of the dissolved national bank shall by operation of law be vested in and become the property of such state bank, subject to all liabilities of such national bank not liquidated under the laws of the United States before such reorganization. 1903, c. 275, s. 17. 231. Reserve fund. Every bank shall at all times have on hand as a reserve in available funds an amount equal to at least fifteen per cent, of the aggregate amount of its deposits. Two-fifths of such fifteen per cent, shall be cash in the vaults of the bank. Savings banks shall have on hand at all times, as a reserve in available funds, an amount equal to at least five per cent, of their aggregate deposits. 1903, c. 275, s. 28. 232 BANKS — II. Powers and Duties. Ch. 7 232. Available funds; when below reserve; no new loans or dividends. The available funds shall consist of cash on hand and balances due from other solvent banks. Cash shall include lawful money of the United States, and exchange for any clearing-house association. Wlienever the available funds of any bank shall fall be- low the reserve herein required, such banlv shall not make any new loans or discoimts otherwise than by discounting or purchasing bills of exchange jaayable at sight ; nor shall such bank make any divi- dends of its profits iintil it has on hand the available funds required by this chapter. 1903, c. 275, s. 29. 233. Loans to one person not to exceed ten per cent, of capi- tal. The total liabilities to any bank or banking institution, of any person, or of any company, corporation or firm, for money borrowed, including in the liabilities of a company or firm the liabilities of the several members thereof, shall at no time exceed one-tenth part of the amount of the capital stock of such bank or banking insti- tution actually paid in. But the discount of bills of exchange dra\vii in good faith against actually existing values and the discount of commercial or biisiness paper actually owned by the person nego- tiating the same shall not be considered as moiiey borrowed. This section shall not apply to banks with a paid-up capital of one hun- dred thousand dollars or less. 1897, c. 298, s. 3; 1897, e. 432. 234. Chapter on corporations applicable. All of the provis- ions of law relating to jirivate corporations, and particularly those emunerated in the chapter entitled Corporations, not inconsistent with this chapter, or with the business of banking, shall be appli- cable to banks. 1903, c. 275, s. 4. III. Stockholders. 235. Individual liability of. The stockholders of every bank or- ganized under the laws of North Carolina, whether under the gen- eral law or by special act, shall be individually responsible, equally and ratably, and not one for another, for all contracts, debts and en- gagements of such corporation, to the extent of the amount of their stock therein at par value thereof, in addition to the amount invested in such shares. The term "stockholder," when used in this chapter, shall apply not only to such persons as appear by the books of the corporation to be stockholders, but also to every owner of stock, legal or equitable, although the same may be on such books in the name of 235 BANKS—///. Stockholders. Cb. 7 another person ; but shall not apply to a person who may hold the stock as collateral security for the payment of a debt. 190.3, c. 275, s. 13; 1897, c. 298. 236. Exemptions in special charters repealed. Any exemp- tion from the individual liability imposed upon stockholders by the preceding section contained in the charter of any bank incorporated prior to the first day of January, one thousand nine hundred and five, is repealed. 1897, c. 298, s. 2. 237. Executors, trustees, etc., not personally liable. Persons holding stock as executors, administrators, guardians, or trustees shall not be personally subject to any liabilities as stockholders, but the estates and funds in their hands shall be liable in like manner and to the same extent as the testator, intestate, ward, or person inter- ested in such trust funds would be if living and competent to act and hold the stock in his own name. U. S. Rev. Stat., s. 5152. 238. Transferer not liable, when. No person who has in good faith and without any intent to evade his liability as a stockholder, transferred his stock on the books of the corporation to any person of full age, jDrevious to any default in the payment of any debt or liability of the corporation, shall be subject to any personal liability on account of the nonpayment of such debt or liability of the cor- poration, biit the transferee of any stock so transferred previous to any default shall be liable for any such debt or liability of the corporation to the extent of such stock, in the same manner as if he had been the owner at the time the corporation contracted such debt or liability. 1903, e. 27.5, s. 14. 239. stock sold if subscription unpaid. Whenever any stock- bolder or his assignee fails to pay any instalment on the stock, when the same is required by law to be paid, the directors of the bank may sell the stock of such delinquent stockholder at public sale, as they shall deem best, having first given the delinquent stockholder twenty days' notice, personally or by mail, at his latest known address. If BO party can be found who will pay for such stock the amount due thereon to the bank, with any additional indebtedness of stich stock- holder to the bank, tlie amoiuit previously paid shall be forfeited to the bank and such stock shall be sold as the directors may order within six months of the time of such forfeiture, and if not sold, it shall be cancelled and deducted from the capital of the bank. 1903, c. 275, s. 11. 240 BAXKS — IV. Corpomiioii Commission. Cli. 7 IV. CoUPORATIOX CoMiiissio:x. 240. May make rules. The corporation commission shall have IDOwer to make such rules for the government of the banks and bank- ing institutions of this state, not inconsistent with law, as may in its jndginent seem wise and expedient. 1903, e. 275, s. 20. 241. Ail banking institutions under supervision of. Every bank, corporation, jiartnership, firm or individual, now or hereafter Iransacting a banking business under the laws of, and within, this state, shall be subject to the provisions of this chapter and regulated by and be under the supervision of the corporation commission. 1903, c. 275, s. 10. 242. Quarterly reports to; publication in county. Every bank and every corporation, partnership, firm or individual transacting a banking biisiness shall make to the corporation commission not less than four reports during each year, according to the form which may be prescribed by said commission ; which reports shall be veri- fied in the case of incorporated banking companies by the oath or aiSrmation of the jjresident, vice-president or cashier, and, in addi- tion, tAvo of the board of directors, and in other cases by the oath or affirmation of the partners, members of the firm or individual owner. The bank, corporation or individiial making such report shall pub- lish same in some newspaper in the county in which such bank, cor- poration or individual is located. 1903, c. 275, s. 21. 243. Special reports. The corporation commission shall have power to call for special reports from any bank, corporation, firm or individual transacting a banking business, whenever necessary, in order to obtain a full and complete knowledge of such bank. 1903, c. 275, s. 22. 244. Annual report of stockholders. Every bank shall at all times keep a correct record of the names of all its stockholders, and once in each year, or whenever called \ipon, file in the office of the corporation commission a correct list of all of its stockholders, with the number of shares held by each. 1903, c. 275, s. 10. 245. Penalty for failure to report, etc. Every baid<, corpora- tion, partnership, firm or individual that sliall refuse, fail or neglect to make any report, or any published statement required by the pro- visions of this chapter shall be subject to a penalty of two hundred 245 BANKS — IV. Corporation Commission. Cli. 7 dollars. The penalty herein provided for shall be recovered by the state in a civil action in any court of competent jurisdiction, and it shall be the duty of the attorney general to j^rosecute all such actions. 1903, c. 275, s. 26. Note. For frauds by bank officers and agents, see Crimes. For false and fraudulent bank statements, see Crimes. \ V. Bank Examiners. 246. Appointed by corporation commission. The corporation commission shall appoint a suitable person or persons to make an examination of and into the affairs of every bank, corporation or individual doing a banking business, as often as shall be deemed nec- essary and proper, and at least once every year. And it shall also be the duty of the said bank examiner to verify the rejrort made by the directors or members or individual conducting any banking institu- tion as required by section two hundred and twenty-six. The cor- poration commission may at any time remove any person appointed by it. 1903, c. 275, s. 23; 1905, c. 539. 247. Powers. Such examiners shall have power to make a thor- ough examination into all the books, papers and affairs of the bank or corporation, firm or individual transacting a banking business, and, in so doing, to administer oaths and affirmations and to examine on oath or affirmation any individual banker and the officers, agents, partners and clerks of such bank, corporation, . firm or individual touching the matters he or they shall be authorized and directed to inquire into, and examine, and to .summon, and by attachment compel the attendance of any person or jjersons in this state to tes- tify under oath before him or them in relation to the affairs of such corporation, partnership, firm or individual. 1903, c. 275, s. 24. 248. Reports by, to corporation commission. Bank examiners shall make a full and detailed report iu writing to the corporation conunission, of the condition of each corporation, partnership, firm or individual doing a banking business, within ten days after each and every examination made by them. 1903, c. 275, s. 24. 249. Annual examinations; expenses paid by banl<. One ex- amination each year shall be designated as the anniial exanaination, and for such examination the bank, corporation, or individual so examined shall pay into the office of the corporation commission, to 24:0 BAXKS— T'. Bank Examiners. Ch. 7 be paid to the examiners, an examination fee, as follows: Banks, banking institutions or individiials doing a banking business, hav- ing a capital of twenty-five thousand dollars or less, shall pay a fee of fifteen dollars : those having a capital stock of more than twenty- five thoiisand dollars and not over fifty thousand dollars, twenty- five dollars; those having a capital stock of over fifty thousand dol- lars, thirty dollars. The expenses incurred and services, other than examinations performed specially for any bank, shall be paid by such bank or banking institution. ISTo bank shall be compelled to pay for more than one examination in each year, imless it shall appear that the condition of such banlc, banking institution or banker is precarious, or in any way unsatisfactory, then it shall be the duty of the commission to order a specia> examination, which shall be paid for by such bank at the same rates as the annual examinations. 1903, c. 275, s. 25. 250. Take possession of bank, when; receiver appointed, how. Any bank examiner who has filed such bond as may be required by the commission, when ordered by the commission, shall have author- ity to take possession of any bank doing business under the laws of this state and retain possession thereof for a time sufficient to make a thorough examination into its affairs and financial con- dition; and in case it is foiind by the examiner, upon such exami- nation, that such bank is insolvent or is conducting its business in an unsafe and unauthorized manner, or is jeopardizing the in- terests of its depositors, then such examiner, when axithorized by the corporation commission, shall have full power and authority to take, hold and retain possession of all the money, rights, credits, assets and property of every description belonging to such bank, cor- poration, partnership, firm or individual, until the corporation com- mission can receive and act on the report made by the examiner of such bank, and have a I'eceiver appointed, for the purpose of winding up and settling the affairs of such bank, banking institution or banker, according to law; and the corporation commission is hereby empowered, in its own name, to institute and maintain civil actions for the appointment of receivers in such cases, and for such other relief as may be necessary or proper to protect the creditors of such bank. The commissioners in their judgment may grant such bank, corporation or individual sixty days in which to correct any errors or irregularities, and make good any deficiencies or losses shown in any reports or otherwise. in03. C-. 275, s. .30. 251. May make arrests, when. When it .f the child, then the juilge shall make the order for the maintenance and for costs of proceeding, and shall takd bond from the defendant and his sureties for the maintenance of the child and to indemnify the county and pay the costs ; and, in default thereof, may imprison the defendant. Code, s. 32. 256. Putative father out of county. If the putative father shall escape or be in any other county tlian that of the justice issuing the warrant, it shall be issued, endorsed, executed and returned as pro- vided in warrants in criminal actions. Code, s. 32. 257. Upon appeal parties and witnesses recognized. When anj appeal shall be taken the justice shall recognize the person accusedj 257 BASTAEDY. Ch. 8 of being the father of the child with sufficient surety for his appear- ance at the next term of the superior court for the county, and to abide by and perform the order of the court; said justice shall also recognize the woman and other witnesses to appear at said superior court, and shall return to said court the original papers in the pro- ceeding and a transcript of his proceedings as required in other cases of appeal. If the putative father fail to appear, unless for good cause shown, the judge shall direct the issue of paternity to be tried ; and if the issue be found against the person accused, he shall order a capias or attachment to be issued for the father, and may also enter up judgment against the father and his surety on his recogni- zance. Code, s. 3.-!. 258. Case may be continued till birth of child. When the judge or JTistice, as the case may be, trying the issue of paternity, shall deem it proper, he may continue the case until the woman shall be delivered of the child ; but when a continuance is granted, the court shall recognize the person accused of being the father of the child with surety for his appearance either at the next term of the court or at a time to be fixed by the justice granting the continuance, which shall be after the delivery of the woman. Code, s. 34. 259. Fine, allowance and bond. When the issue of paternity shall be found against the putative father, or when he admits the paternit}', he shall be fined by the judge or justice not exceeding the sum of ten dollars and the court shall make an allowance to the woman not exceeding the sum of fifty dollars, to be paid in such instalments as the judge or justice shall see fit, and he shall give bond to indemnify the county as prescribed by law; and in default of such payment he shall be committed to prison. Code, s. 35. 260. Action barred in three years after birth. All examinations upon oath to charge any man with being the father of a bastard child shall be taken within three years next after the birth of the child, and not after. Code, s. 30. 261. Execution may issue for ma^intenance. When the judgj or justice shall charge the father of a bastard child with its main- tenance and the father shall neglect to pay the same, then the JTidge or justice, upon application of the party aggrieved, notice being served on the defendant at least ten days before the return day stated in the notice, or such notice being returned by the sheriff or 67 261 BASTARDY. Ch. S constable that the defendant is not to be found, may order an execu- tion against the goods, chattels, lands and tenements of the father for such sum as the court shall adjudge sufficient for the main- tenance of the bastard child. Code, s. .37. 262. Putative father when committed or apprenticed. In all cases arising under this chapter, when the putative father shall be charged with costs or the payment of money for the support of a bastard child, and such putative father shall, by law, be subject to be committed to prison in default of paying the same, it shall be com])etent for the court to sentence such ]nitative father to the liouse of correction for such time, not exceeding twelve months, as the court may deem proper: Provided, that such person or putative father, at his discretion, instead of being committed to prison or to the house of correction, may bind himself as an apprentice to any person whom he may select, for such time and at such price as the court may direct. The binding shall be by indenture in open court, and the price obtained shall be paid to the county treasurer. On the indentTire being signed by the presiding judge of the court and by the master receiving such apprentice, the person thus bound shall be treated and regarded as an apprentice in all matters except education. Code, s. 38. 263. Procedure for legitimating bastards. The jnitntivc fatluu- of any illegitimate child may apply by petition in writing to the superior court of the coiinty in which the father may reside, praying that such child may be declared legitimate; and if it shall appear that the petitioner is reputed the father of the child, the court may thereupon declare and pronounce the child legitimated ; and the clerk shall record the decree. Code, s. 39. 264. Effects of legitimation. The cflcct of such legitimation shall extend no further than to impose upon the father all the obli- gations which fathers owe to their lawful children, and to enable the child to inherit from the father only his real estate, and also to entitle such child to the personal estate of his father, in the same maimer as if he liad been born in lawful wedlock; and in case of death and intestacy, the real and personal estate of such child shall be transmitted and distributed according to the statute of descents and distribution among those who would be his heirs and next of kin in case he had been born in lawful wedlock. Code, s. 40. 265 BONDS—/. Mortgage in Lieu of. Ch. 9 CHAPTEK 9. BONDS. Sections. I. Mortgage in lieu of. 265 — 271 II. In surety companies, 272 — 277 III. Officer acting without, 278 IV. Irregularity, 279 V. Actions on, 280—286 VI. State officers, 287—294 VII. County officers, 295—306 VIII. Pilots; 307 IX. Duty of county commissioners, 308 — 315 X. Duty of superior court judge, 316 — 318 XI. Fiduciaries. 319—324 T. Mortgage in Lieu of. 265. Fiduciary or official. Any administrator, execntor, guar- dian, collector or receiver, or any officer required to give an official bond, or the agent or snrety of such person or officer, may execute a mortgage on real estate, of the value of the bond required to be given by such ' administrator, executor, guardian, collector, receiver or officer, to the state of Xorth Carolina, conditioned to the same effect as the bond should be, were the same given, with a power of sale, which power of sale may be executed by the clerk of the superior court, with whom said mortgage shall be deposited, upon a breach of any of tlie conditions of said mortgage, after advertisement for thirty days. Code. s. 118; 1874-5, c. 103, s. 2. 266. Appearance; security for costs or fine. Any person required to give a bond or undertaking, or required to enter into a recognizance for his appearance at any court, in any criminal pro- ceeding, or for the security of any costs or fine in any criminal action, may also execute a mortgage on real or personal property of the value of such bond or recognizance, payable to the state of ISTorth Carolina, conditioned as such bond or recognizance would be required, with power of sale, which power shall be executed by the clerk or justice of the peace in whose court said mortgage shall be executed, upon a breach of any of the conditions of said mort- gage: Provided, that where such mortgage upon real property is executed before a justice of the peace the power of sale shall be enforced by the clerk of the court of the county in which the crimi- 266 BONDS— 7. Mortgage in Lieu of. Ch. 9 nal proceeding is had: And provided further, that no such mort- gage on real property executed for the security for costs or fine shall allow a longer time for payment of said costs or fine than six months from the execution tliereof, and no mortgage on personal property a longer time than three months, except in cases of appeal, when the time allowed shall be counted from the date of the final decision in the cause : And provided further, that all legitimate expenses of sale, which shall only be made after due advertisement according to law, shall be paid out of the proceeds of the sale of the mortgaged property, as shall also the fullowing fees, to-wit: For each sale of real property mortgaged under this section the clerk shall receive two dollars, and for each sale of personal property mortgaged under this section the clerk or justice of the peace who enforces the power of sale shall receive one dollar. Cotle, s. 120; 1874-5, c. 103, s. 3; 1891, c. 425, ss. 1, 2, 3. 267. How cancelled; effect. Any mortgage given by any person in lieu of bond or undertaking or recogiaizance for his appearance at any court in any criminal proceeding, or for the security of any cost or fine in a criminal action, which has been registered, when the party made his appearance at the court to which he was bound and did not depart the court without leave, or paid the cost or fine re- quired, may be cancelled or discharged by the clerk of the court of the county where such action was pending by entry of "satisfaction" iipon the margin of the record where siich mortgage is recorded, in the presence of the register of deeds or his deputy, who shall sub- scribe his name as a witness thereto, and such release shall have the eifect to discharge and release all the right, title and intei'est of the state of North Carolina in and to the property described in such mortgage. 1905, e. 106. 268. Clerk superior court; depository of. in all cases where the clerk of the superior court may be required to give surety, he may deposit a mortgage Avith the register of deeds, payable to the state, and conditioned, as the bond would have been required, witli power of sale. The power of sale shall be executed by the register of deeds, upon a breach of any of the conditions of said mortgage; and the register of deeds shall in all cases immediately register the same, at the expense of the said clerk. Code, s. 122; 1874-5, c. 103, s. 6. 269. Prosecution. Tt shall be lawful for any person desiring to . commence any civil action or special proceeding, or to defend the same, his agent or surety, to execute a mortgage on real estate of the 269 BONDS—/. Mortgage in Lieu of. Ch. 9 value of the bond or undertaking, required to be given at the begin- ning of said action, or at any stage thereof, to the party to whom the bond or undertaking would be required to be made, conditioned to the same effect as such bond or undertaking, with power of sale, which power of sale may be executed upon a breach of any of the conditions of the said mortgage after advertisement for thirty days. Code, s. 117; 1874-5, c. 103, s. 1. 270. Affidavit of value of property required, in all cases where a mortgage is executed, as hereinbefore permitted, it shall be the duty of the clerk of the court in which it is executed, or of the justice, to require an affidavit of the value of the property mort- gaged to be made by at least one witness not interested in the mat- ter, action or proceeding in which the mortgage is given. Code, s. 121; 1874-5, c. 103, s. 4. 271. Additional security required, when. If, from any cause, the property mortgaged in lieu of a bond shall become of less value than the amount of the bond in lieu of Avhicli the mortgage is given, and it shall so appear upon affidavit of any person having any interest in the matter as a security for which the mortgage was given, it shall be the duty of the mortgagor to give additional security by a deposit of money, or the execution of a mortgage on more property, or justify as required in cases where bond or undertaking is given. Code, s. 119; 1874-5, c. 103, s. 5. II. In Sueett Companies. 272. By state officers. AH persons who are required to give bond to tlie state of North Carolina to be received by the governor or by any department of the state government shall, in lieu of personal security, be permitted to give as security for said bond and for the performance of the dvities named in the said bond any indemnity or guaranty company authorized to do business in the state of North Carolina, subject to such regulations as the governor or depart- ment may prescribe, and with power in them to demand additional security at any time. Any person presenting any indemnity or guaranty company as surety shall accompany his bond with a state- ment of the insurance commissioner as to the condition of such com- pany as required in this Revisal. 1901, c. 754. Note. For certificate of solvency and insolvency, see ss. 4802, 4803. 273. Municipal officers; fiduciaries; litigants, etc. Whenever, by the law of iSTorth Carolina, or by the regulation of any board, body or organization in this state, any bond, recognizance, obliga- 71 273 BOXDS— //. 7/1 Surely Companies. Cli. 9 tion or undertaking is required of, permitted to be made, given, tendered or filed by any sheriff, clerk of a court, register of deeds, tax collector, treasurer, constable or coroner, mayor, clerk, police- man, weigher or standard keeper of any county, city, to^^^l or town- ship in this state, or by any trustee, i-eceiver, guardian, administra- tor, executor, assignee, or any other fiduciary, or party to a civil action or proceeding, either for the prosecution thereof or for any other purpose whatsoever in the coiirse of the action, or by any officer of any town or city, conditioned for the doing .or not doing of anything, in such bond, recognizance, obligation or undertaking specified, any and all clerks of the superior courts, municipal offi- cers, boards, courts and judges, now or hereafter permitted to accept, approve or pass upon the sufficiency of such bond, recognizance, obligation or undertaking shall accept such bond, recognizance, obli- gation or undertaking, and approve the same, whenever the same is executed or the conditions thereof are guaranteed by a corporation of this or any other state licensed in this state, which corporation under its charter is authorized to act as guardian or other trustee, or to g-uarantee the fidelity of any persons holding places of piiblic and private trusts, and to guarantee the performance of contracts, other than insurance policies, and to execute and guarantee bonds and undertakings required or jiermitted in actions or proceedings, as by law allowed. Whenever such bond, recognizance, ol)ligation or undertaking is so required or permitted to be made, given, tendered or filed with one surety, or with two or more sureties, the execution of the same, or the guaranteeing of the performance of the condition thereof, shall be sufficient when executed or giiaranteed solely by such company so authorized, and shall be in all respects a full and complete compliance with every requirement of every law, rule and regulation that such bond, recognizance, obligation or iindertaking shall be executed by one surety or two sureties, and that such surety or sureties shall be residents or freeholders, and such bond, recog- nizance, obligation or undertaking shall be accepted and approved when executed by such company : Provided, the clerk of the superior court may have discretion as to the acceptance of any bond on which said company or companies may become sureties on the bonds of guardians, execiitors, administrators, assignees, or other fiduciary or any other party to a civil action or proceeding. 1895, c. 270; 1890, c. 54, s. 45; 1901. c. 700. 274. How released from liability. Any company executing such bond, obligation or undertaking, may be released from its liability or security on tlic same terms as are or may be by law pi-escribed for the release of individuals upon any such bonds, obligations or undertakings. 1899, c. 54, 9. 48. 275 BOXDS— 77. 7/i. SurcHy Companies. Cli. 9 275. Estoppel to plead ultra vires; penalty failure to pay judg- ment. Any company which shall execute any bond, obligation or undertaking under the provisions of this subchapter shall be estopped in any proceeding to enforce the liability which it shall assume to incur, to deny its corporate power to execute such instrument or assume such liability. If any surety company against which a judgment shall have been recovered shall fail to discharge the same within sixty days from time such final judgment is rendered, it shall forfeit its right to do business in this state, and the insurance commissioner shall cancel its license. 1899, c. 54, s. 49; 1901, c. 706, s. 1, siib-s. 5. 276. When accepted and officer inducted. I pon pre.sentation to the person authorized by law to take, accept and file official bonds, of any bond duly executed in the penal sum required by law by the officer chosen to any such office, as principal, and by any surety company, as security thereto, whose insurance or guaranty is accepted as security upon the bonds of United States bonded officials (such insurance company having complied with the insurance laws of the state of ISTorth Carolina), or by any other good and sufficient security thereto, such bond shall be received and accepted as suffi- cient, and the principal thereon shall be inducted into office. 1899, c. 54, s. 53; 1901, c. 706, s. 1, sub-s. 5. 277. Expense of fiduciary bond cliarged to fund. Any receiver, assignee, trustee, committee, guardian, executor or administrator, or other fiduciary required by law to give a bond as such, may include as part of his lawful expenses such sums paid to such companies for such suretyship not exceeding one-half of one per cent, per annum on the account of such bonds as the clerk, judge or court may allow. 1901, c. 706, s. 1, sub-s. 5. NbTE. For requisites for surety companies to be accepted as bondsmen, see Insurance. III. Officer Acting Without. 278. Penalty for. Every person or officer of whom an official bond is required, who shall p)resume to discharge any duty of his office before executing such bond in the manner prescribed by law, is liable to a forfeiture of five hundred dollars to the use of the state for each attempt so to exercise his office. Code. s. 1882; R. C, c. 78, s. 8. 279 BONDS— 7T. Iiregulariiij. Ch. 9 IV. Irregulaeitt. 279. Informal taking, not to invalidate. Whenever any instru- ment shall be taken by or received under the sanction of the board of county commissioners, or by any person or persons acting under or in virtue of any public authority, purporting to be a bond executed to the state for the performance of any duty belonging to any office or appointment, such instrument, notwithstanding any irregularity or invalidity in the conferring of the office or making of the appoint- ment, or any variance in the penalty or condition of the instrument from the jDrovision prescribed by law, shall be valid and may be put in suit in the name of the state for the benefit of the person injured by a breach of the condition thereof, in the same manner as if the office had been duly conferred or the appointment duly made, and as if the penalty and condition of the instrument had conformed to the provisions of law: Provided, that no action shall be sustained thereon because of a breach of any condition thereof or any part of the condition thereof which is contrary to law. Code, s. 1S91; R. C, c. 78, s. 9; 1842, c. 61; 1869-70, c. 169, s. 16. V. Actions on. 280. Taken in judicial proceedings brought in name of state. Bonds and other obligations taken in the course of any proceeding in law, under the direction of the court, and payable to any clerk, commissioner, or officer of the court, for the benefit of the suitors in the caxise, or others having an interest in such obligation, may be put in suit in the name of the state. Code, s. 51; R. C, c. 13, s. 11. 281. Official bonds, relator; successive suits. Every person injured by the neglect, misconduct, misbehavior in office of any clerk of the superior court, register, entry-taker, surveyor, sheriff, coroner, constable, county treasurer, or other officer may institiite a suit or suits against said officer or any of them and their sureties iipon their respecti%'e bonds for the due performance of their duties in office in the name of the state, without any assignment thereof; and no such bond shall become void upon the first recovery, or if judgiuent shall be given for the defendant, but may be p\it in suit and pro.secuted from time to time until the whole penalty shall be recovered, and every such officer, and the sureties on his official bond, shall be liable to the person injured for all acts done by said officer by virtue or under color of his office. Code, .s. 18S:); R. C, c. 78, s. 1; 1793, c. 384, s. 1; 1833. c. 17; 182.>. c. 9: 1869-70, c. 169, s. 10. 282 BONDS— 7. Actions on. Ch. 9 282. Complaint must show party in interest; may sue officer individually. Any person -who may bring suit in manner aforesaid shall state in his complaint on whose relation and in whose behalf the suit is brought, and he shall be entitled to receive to his oxm use the money recovered ; but nothing herein contained shall prevent such person from bringing at his election an action against the officer to recover special damages for his injury. Code, s. 1884: R. C, c. 78, s. 2; 1793, c. 384, ss. 2, 3; 1869-70, c. 169, s. 11. 283. Summary remedy on official bond. Whenever a sheriff, coroner, constable, clerk, county or town treasurer, or other officer, shall have collected or received any money by virtue or under color of his office, and on demand shall fail to pay the same to the person entitled to require the payment thereof, the person thereby aggrieved may move for judgment in the superior court against such officer and his sui'eties for any sum demanded ; and the court shall try the same and render jiidgment at the term when the motion shall be made, but ten days' notice in writing of the motion must have been previously giveij. Code, s, 1889; R. C, c. 78, s. 5; 1819, c. 1002; 1869-70, c. 169, s. 14; 1876-7, c, 41, s. 2. 284. Damages against officers for money unlawfully detained. Whenever money received as aforesaid shall be unlawfully detained by any of said officers, and the same shall be sued for in any mode whatever, the plaintiff shall be entitled to i-ecover, besides the siim detained, damages at the rate of twelve j^er centum per annum from the time of detention until payment. Code, s. 1890; R. C, e. 78, s. 9; 1819, c. 1002, s. 2; 1S68-9. c. 169. 285. Evidence against principal admissible against sureties. Ill actions brought uj^on the official bonds of clerks of courts, sheriffs, coroners, constables, or other public .officers, and also upon the bonds of executors, administrators, collectors or guardians, when it may be necessary for the plaintiff to prove an,y default of the principal obligors, any receipt or acknowledgment of such obligors, or any other matter or thing which, by law would be admissible and competent for or toward proving the same as against him, shall in like manner be admissible and competent as presumptive evidence only against all or any of his sureties who may be defendants with or without him in said actions. Code, s, 1345; R, C, e. 44. s. 10; 1844, c. 38; 1881, e, 8. 286. Officer liable for the debt, when. When a claim shall be placed in the hands of any sheriff", coroner or constable for collec- tion, and he shall not use due diligence in collecting the same, he 75 286 BOXDS— T. Actions on. Ch. 9 shall be liable for the full amount of the claim notwithstanding the debtor may have been at all times and is then able to pay the amount thereof. Code, s. 1888; R. C, c. 78, s. 3; 1844, c. G4 ; 1869-70, e. 169, s. 12. VI. State Officees. 287. Secretary of state. The secretary- of state shall give knid with sufficient surety, approved by the governor and atiditor, for the sum of twenty thousand dollars, payable to the state, and conditioned for the faithful performance of his duties. And the bond of the secretary of state shall be deposited in the treasurer's office for safe keeping; and he shall take the oath prescribed for public officers. Code, s. 33.38; 1868-9, c. 270, ss. 42. 43. 288. Treasurer. The treasurer shall, after he receives notice of his election^, and before he enters upon the execiition of the duties of his office, give a bond to the state in the sum of two hundred and fifty thousand dollars, Mnth not less than four sufficient sureties, to be approved by the president of the senate and s]5eaker of the hoiise of representatives, conditioned that he will faithfully execute the duties of his office, which bond shall be dei^osited in the office of the secretary of state, and shall be deemed to extend to the faithful execution of the office of treasurer by the person elected thereto, until a new election of treasurer be made, and a new bond given by the person elected. Code, s. 3357; 1868-9, c. 270, s. 74. 289. Treasurer's clerks. The clerks in the treasurer's office shall enter into good and sufficient bonds, payable to the state of North Carolina, in the following sums : The chief clerk, ten thousand dollars, the other clerks, except the clerk charged with the steno- graphic dxities, five thousand dollars each, conditioned upon the faithful jierfornmnce of the duties of their respective offices, and the faithful accounting for all moneys and things of value, which may come into their hands by virtue or color of their respective offices. These several bonds shall be in addition and cumulative to the official bond of the state treasurer, and shall not be construed to affect in any way the liability of the .state treasurer upon his offi- cial bond. The bonds shall be approved by the treasurer and, if given in a surety company, the costs thereof, not to exceed twenty cents on the one hundred dollars of penalty, may be paid by the state. 290. Clerk of supreme court, bond and oath of office, ikfore undertaking his duties, the clerk of the supreme court shall enter 76 290 BONDS— TY. State Officers. Ch. 9 into bond with sufficient surety payable to the state of North Caro- lina, in the sum of fifteen thousand dollars, conditioned for the faithful discharge of his duties and for the safe kee^iing of all records conuuitted to his custody, which bond shall be lodged with the secretary of state; and he shall also before said justices, or one of them, take the oaths which are prescribed for clerks of the superior court, and shall keep his office in the city of Kaleigh. Code. s. 958; R. C, c. 33, s. 1); 1S12, c. 829, s. 2; 1818, c. 963, s. 5; 1846, c. 28, s. 3; 1799, c. 520, s. 2. 291. Keeper of capitol; penalty; when renewed; where de- posited. Before entering upon the duties of his office the keeper of the capitol shall execute a bond, with good security, in the sum of two hundred and fifty dollars, payable to the state of North Carolina, and conditioned for the faithful discharge of his duties. The bonds shall be deposited in the office of secretary of state, and be renewed every two years under the care of the board of public build- ings ; and shall be put in suit whenever in their judgTQcnt the condi^ tions thereof, or any of them, may have been broken; and the same shall not be discharged until the whole penalty is exhausted in damages. Code, s. 2306; R. C, c. 103, a. 6. 292. Public printer. Any person to whom may be awarded the public printing and binding shall give bond, with approved surety, payable to the state of North Carolina, in the simi of five thousacd dollars, conditioned for the faithful performance of his duties and undertakings vmder his contract. The surety herein required shall justify before some person authorized to administer oaths. Code, s. 3621; 1899, c. 250, s. 2. 293. Insurance commissioner. The insurance commissioner shall, before he enters upon the execution of the duties of his office, give a bond to the state in the sum of twenty-five thousand dollars, with suffi- cient surety, to be approved by the state treasurer, conditioned for the faithfiil performance of the duties of his office during his term of office ; which bond shall be deemed to extend to the faithful execu- tion of the office of insurance commissioner by the person appointed thereto imtil a new appointment of insurance commissioner be made and a new bond given by the person elected. 1899. e. .54. s. .55; 1905, e. 430, s. 2. 294. Paymaster of state troops. The paymaster of the state troops shall, before he enters on the diities of his office, give bond and sufficient security, in the sum of five thoiisand dollars, payable 294 BOXDS— TV. State Officers. Ch. 9 to the state, for the faithful accmintiue for all siims of mouey which may come into his hands by virtue or color of his office. Ck)de, s. 3192; R. C, c. 70, s. 30; 1806, c. 70S, s. 12. VII. County Officers. 295. Clerk of superior court. At the first meetiug of the board of commissioners of each county after the election or appointment of any clerk of a superior court it shall be the duty of the clerk to deliver to such commissioners a bond with sufficient sureties, to be approved by them, in a penalty of not less than ten thousand dollars, and not more than fifteen thousand dollars, payalile to the state of Xorth Carolina, and with a condition to be void if he shall account for, and pay over, according to law, alb moneys and effects Avhicb have come or may come into his hands, by virtue or color of his office, or under an order or decree of a judge, even though such order or decree be yoid for want of jurisdiction or other irregulari- ties, and shall diligently preserve and take care of all books, records, papers and property, which have come, or may come into his posses- sion, by virtue or color of his office, and shall in all things faithfully perform the dvities of his office as they are, or thereafter shall be prescribed by law: Provided, that the bond of the clerk of the superior court of Pamlico county may be fixed at an amount not less than five thousand dollars, in the discretion of the county com- missioners. Each clerk of the superior court shall furnish the cliair- msn of the board of county commissioners of his county with all notifications furnished him in compliance with section four thousand eight hundred and three of this Kevisal concerning any company in Avhich any officer of the county is bonded. Code. s. 72; 1899, e. 54, s. 52; 1903, c. 747; 1S89. c. 7; 1891. c. 385; 1901, c. 32; C. C. P., s. 137; 1895, cc. 270, 271. 296. Clerk's bond, how approved; where deposited. The ap- proval of said bond by the board of commissioners, or a majority of tlieni, shall be recorded by their clerk. The said l)uud shall be acknowl- edged by the parties thereto, or proved by a subscribing witness, before the clerk of said board of conunissioners, or their presiding officer, registered in the register's office in a separate book to be kept by him for the registration of official bonds; and the original, with the approval thereof endorsed, deposited with the register for safe keeping. The like remedies shall be had upon said bond as are or may be given by law on official bonds. Code, 9. 73; C. C. P., s. 138. 297. County treasurer; penalty; when renewed. The county treasurer, before entering upon the duties of his office, shall give 297 BOISTDS— TY/. County Officers. Ch. 9 bond . with three or more suiRcient sureties, to be approved by the board of commissioners, payable to the state, conditioned that he will faithfully execute the duties of his office, and pay according to law, and on the warrant of the chairman of the board of commis- sioners, all moneys which shall come into his hands as treasurer, and render a just and true account thereof to the board when required by law, or by the board of eommissionerfe. The penalty of his bond shall be a sum not exceeding the amount of the county and local taxes assessed during the previous year, and the board of commis- sioners at any time, by an order, may require him to renew, increase or strengthen his bond. A failure to do so within ten days after the service of such an order shall vacate his office and the board shall appoint a successor : Provided, the board of commissioners may fix the bond of the treasurer of Forsyth county at such sum as they may deem best, not less than twenty thousand dollars, and may increase it at any time ; and in Craven county the bond of the treasurer shall be equal to the county funds during the preceding year, but not to exceed forty thousand dollars. Code, s. 766; 1868-9, e. 157, s. 4; 1895, c. 270, s. 2; 1899, e. 132; 1899, e. 207, s. 4; 1903, e. 12, s. 2; 1901, c. 536; 1899, c. 54, s. 52. 298. Sheriff; number; penalty; form. The sheriff shall execute' three several bonds, payable to the state of North Carolina, as fol- lows: One conditioned for the collection and settlement of state taxes according to law, a simi not exceeding the amount of the taxes assessed upon the county for state purposes in the previous year; one conditioned for the collection and settlement of county and other local taxes according to law^ a sum not exceeding the amount of such county and other local taxes for the previous year. Every sheriff shall deposit the county and other local taxes, by him collected, with the county treasurer, if there be a county treasurer, as often as he shall collect or have in his possession at any one time of such county or local taxes, a smn equal to five hundred dollars. The amount of the third bond, for the due execution and return of process, pay- ment of fees and moneys collected, and the faithful execution of his office as sheriff', shall be not more than five thousand dollars, in the discretion of the board of county connnissioners, and shall be conditioned as follows: "The condition of the above obligation is siach, that whereas the above bounden is elected and appointed sheriff of county ; if, therefore, he shall well and truly execute and due return make of all process and precepts, to him directed, and pay and satisfy all fees and siuns 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 298 KOXDS— TV/. Couniii Officers. Ch. 9 persons to whom the same shall be due, his, her or their executors, adininistrators, attorneys, or agents; and in all other things well, truly and faithfully execute the said office of sheriff, during his con- tinuance therein, then the above obligation to be void ; otherwise to remain in full force and effect." Provided, the bonds of the sheriff in Craven cimnty shall \>v as fol- lows : One conditioned for tlie collection, payment and settlement of the county, poor, school and special taxes in a sum double the amount of said taxes, for the previous year; one for the collection, payment and settlement of the public taxes as required by law in a sum double the amount of said taxes for the previous year : Provided, that the ag- gregate amount of said two bonds shall not be required to exceed the sum of forty thousand dollars. And the amount of the third bond for the due execution and return of process, pa\mient of fees and moneys collected and the faithful execution of his office as sheriff shall not be less than five thousand dollars and no more than fifteen thousand dollars in the discretion of the board of county commissioners; and whenever and as often as the sheriff shall have collected of the county, school or other local and special taxes a sum equal in amount to three hundred dollars he shall inunediately pay the same to the treasurer of the county. Code, s. 2073; R. C, e. lOo, s. 1.3; 1777, c. 118. s. 1; 1823, c. 1223; 1879, c. 109; 1S95, c. 270, ss. 1, 2; 1899, c. 207, s. 2; 1903, c. 12; 1899, c. 54, s. 52. 299. Coroner; penalty; oath of office. Every conmov shall execute an undertaking for the faithful discharge of the duties of his office with good surety, in the sum of two thousand dollars, pay- able to the state of North Carolina and a])proved by the board of county commissioners. Code, s. 661; R. C, c. 25, s. 2; 1791, c. 342, ss. 1, 2; 1820. c. 1047. .ss. 1, 2; 1899, c. 54, s. 52. 300. Coroners' bonds registered. All official bonds of coroners shall be duly proved, certified, registered and filed as sheriffs' bonds are required to be; and certified copies of the same, from the regis- ter's office, shall be received and read in evidence in the like cases, and in like manner as sttch copies of sheriffs' bonds arc now allowed to be read in evidence. Code, s. 002; 18G0-1, c. 18. 301. Register of deeds. Every register of .Iccds sliidl give l)ond with sufficient surety, to be approved by the board of county com- missioners, in a sum not exceeding ten thousand dollars, payable to the state, and conditioned for the safe keeping of the books and records, and for the faithful discharge of the duties of his office, and .shall renew his bond annually on the first Monday in December. Code, s. 3648; 1808, c. 35, s. 3; 1876-7, c. 276. s. 5; 1899, c'. 54, s. 52. 302 BONDS— T7Z. Coimtij Officers. Cli. 9 302. Constable, where registered; fees, how paid. The board of coniinissioners of each county shall require of each constable, elected or appointed for a township, on entering upon the duties of his office, to give a bond with good surety, payable to the state of North Carolina, in a sum not exceeding one thousand dollars, con- ditioned as well for the faithful discharge of his duty as constable, as for his diligently endeavoring to collect all claims put into his hands for collection, and faithfully paying over all sums thereon received, either with or without suit, unto the persons to whom the same may be due. Said bond shall be duly proved and registered, and after registration, filed in the office of the register of deeds ; and certified copies of the same from the register's office shall be received and read in evidence in all actions and proceedings where the origi- nal might be. The fees for proving and registering the bond of constable shall be paid by the constable. In Stanly county the fees shall be paid by the county. Code, s. 647; R. C, c. 24, s. 7; 1818, c. 980; 1820, c. 1045, s. 2; 1833, c. 17; 1809-70, c. 185; 1899, e. 54, s. 52; 1891, c. 229. 303. County surveyor. The county surveyor of each county shall enter into bond in the sum of one thousand dollars payable to the state of North Carolina, with sufficient surety for the faithful dis- charge of the duties of his office. Code, s. 2762; R. C, c. 42, s. 5; 1777, c. 114, s. 13. 304. Entry-taker. Every entry-taker shall enter into bond in the sum of five hundred dollars, payable to the state, with sufficient security to be approved by the county commissioners, for the faith- ful discharge of the duties of his office. Code, s. 2758; 1868-0, c. 173. s. 3. 305. Wrecic commissioner. Every person ai)]iointed a wreck commissioner shall enter into a bond, with good and sufficient surety, in the sum of two thousand dollars, payable to the state of North Carolina and conditioned for the faithful performance of his duties, which shall be approved by the board of county commis- sioners and deposited in the office of the clerk of the superior court. 1899, c. 79, s. 10. 306. standard-keeper. The person elected as standard-keeiier of any county shall give bond, with good and sufficient surety, pay- able to the state of North Carolina, in the simi of two hundred dol- lars, conditioned for the safe keeping of weights and measures, stamps and brands of said coiinty, and for the faithful performance of the duties of his office. Code, s. 3840; R. C. c. 117, s. 4; 1741, c. 32, s. 3; 1810, c. 901, s. 2; 1827, c. 22, s. 3; 1883, c. 393. ■ 81 307 BOXDS— T7//. Pilots. Ch. 9 VIII. Pilots. 307. Pilot; may be enlarged; where filed. Every person, before he obtains a eonmiission or a branch to be a pilot, shall give bond with two sufficient sureties payable to the state of North Carolina, in the snni of five hundred dollars, with condition for the due and faithful discharge of his duties, and the duties of his apprentices; and the body appointing such pilot may, from to time, and as often as they may deem it necessary, enlarge the penalty of the bond, or require new and additional bonds to be given ; and every bond taken of a pilot shall be filed with, and preserved by, the said body appoint- ing such pilot in trust for every person that shall be injured by the neglect or misconduct of such pilot, or his apprentices ; vpho may sev- erally bring suit thereon for the damage by each one sustained. Code, s. 3487; R. C, c. 85, s. 6; 1784, c. 207, s. 3. IX. Duty of County Commissioners. 308. County officials' bonds; term of; examined annually; in- creased when. Every clerk, treasurer, sherifl', coroner, register of deeds, surveyor, and every other officer of the several counties who is required by law to give a bond for the faithful performance of the duties of his office, shall give a bond for the term of the office to whicli .such officers are chosen, respectively. The bonds shall be carefully examined on the first Monday in December of every year, and if it shall appear that the security has been impaired, or for any cause become insufficient to cover the amount of money or property or to secure the faithful performance of the duties of the office, then the bond shall be renewed or strengthened, the insufficient security in- creased within the limits herein prescribed, and the impaired shall be made good ; but no renewal, or strengthening, or additional security shall increase the penalty of said bond beyond the limits herein pre- scribed for the term of office. Code, s. 1874; 1869-70, c. 1C9; 1870-7, c. 275, s. 5; 1890. c. 54, s. .54; 1895, c. 207, s. 4. 309. Vacancy declared on failure to renew bond. Upon the failure of any such officer to make such renewal of liis bond, it is the dut}' of the board of commissioners, by an order to be en- tered of record, to declare his office vacant, and to ]iroceed forth- with to appoint a successor, if the power of filling the vacancy in the particular case be vested in the board of commissioners; but if otherwise, the said board shall immediately inform the proper person having the power of appointment of the fact of such vacancy^ Code, 9. 1875; 1809-70, c. 169, s. 2. 310 BONDS — IX. Duty of County Commissioners. Ch. 9 310. Justification of surety on official. Every surety on an offi- cial bond required by law to be taken or renewed and approved by the board of commissioners, shall take and subscribe an oath before the chairman of the board or some person authorized by law to administer an oath, that he is worth a certain sum (which shall be not less than one thousand dollars) over and above all his debts and liabilities and his homestead and personal property exemptions, and the sum thus sworn to shall in no case be less in the aggregate than the penalty of the bond. But nothing herein shall be construed to abridge the power of the said board of commissioners to require the •personal presence of any such surety before the board when the bond is offered, or at such subsequent time as the board may fix for examination as to his financial condition or other qualifications as surety. Code, s. 1876; 1869-70, e. 169, s. 3; 1879, c. 207; 1889, c. 7; 1891, e. 385; 1901, c. 32. 311. County commissioners to approve bonds; custody; how acknowledged. The approval of all official bonds taken or renewed by the board of commissioners shall be recorded by their clerk. Every such bond shall be acknowledged by the parties thereto or proved by a subscribing witness, before the chairman of the board of commissioners, or before the clerk of the superior court, regis- tered in the register's office in a separate book to be kept for the regis- tration of official bonds, and the original bond, with the approval of the commissioners endorsed thereon and certified by their chairman, shall be deposited with the clerk of the superior court, except the bond of said clerk, which shall be deposited with the register of deeds for safe keeping. Code, s. 1877; 1809-70, c. 169, s. 4; 1879, c. 207, s. 2. 312. Clerk of board to record yeas and nays on approval; penalty for failure. It is the duty of the clerk of the board of com- missioners to record in the proceedings of the board the names of those commissioners who are present at the time of the approval of any official bond, and who shall vote for such approval, and every clerk neglecting to make such record beside other punishment shall forfeit his office. Any commissioner may cause his written dissent to be entered on the records of the board. Code, ss. 1878, 1881; 1869-70, c. 169, ss. 5, 8; R. C. c. 78, s. 7; 1790, c. 327; 1809, c. 777. 313. Commissioner liable as surety, when. Every commissioner who approves an official bond, which he knows to be, or which by rea- sonable diligence he could have discovered to have been, insufficient in the j^enal sum, or in the security thereof, shall be liable as if he 314 BONDS— /A'. Duty of Couitli/ Commissioners. Ch. 9 were a surety thereto, and may be sued acci)rdiiii;ly by any person having a cause of action on said bond. Code, s. 1879; 1869-70, c. 169, s. 6. 314. Record of board conclusive evidence of facts stated therein on prosecution. In all actions under the preceding section, a copy of the jiroceedings of the board of commissioners in the particular case, certified by their clerk under his hand and seal of the county, shall be conclusive evidence of the facts in such record alleged and set forth. Code, s. 1881; 1869-70, c. 169, s. 8. 315. Commissioners can not be sureties where they may approve. Xo member of the board of commissioners, or any other person authorized to take olficial bonds, shall sign as surety on any- official bond, \ipon the sufficiency of which the board of which he is a member may have to pass. Code, s. 1887; 1874-5, c. 120, s. 3. X. Duty Supeeiok Court Judge. 316. Official bond insufficient, new one required; office vacated for failure; successor appointed. Whenever oath shall be made before any judge of the superior court by five respectable citizens of any county within his district that after diligent inquiry made they verily believe that the bond of any officer of such county, which has been accepted by the board of commissioners, is insufficient either in the amount of the penalty or in the ability of the sureties, it shall be the duty of such judge to cause a notice to be served upon such officer requiring him, to appear at some stated time and ]ilacc and justify his bond by evidence other than that of himself or his svire- ties. And if this evidence so produced shall fail to satisfy the judge that the bond is sufficient, both in amount and the ability of the sureties, he shall give time to the officer, not exceeding twenty days, to give another bond, the judge fixing the amount of the new bond, when there is a deficiency in that particular. And upon failure to give a good bond to the satisfaction of the judge within the twenty days, he shall declare the office vacant, and if the appoint- ment be with himself, he shall inunediately proceed to fill the vacancy ; and if not, he shall notify the persons having the appoint- ing power that they may ])rocecd as aforesaid. Code, 9. 1885; 1874-5, c. 120. 317. Appointee to give bond; official bonds, liabilities. Tlie i>cr- son so appointed sliall give bond before the judge, and the bond so 317 BONDS — -Y. Duty Superior Court Judge. Ch. it given shall in all respects be subject to the requirements of the law in relation to official bonds ; and all official bonds shall be considered debts and liabilities. Code, s. 1886; 1S74-5, c. 120, s. 2. 318. Judge to file statement of proceedings witii commission- ers. Whenever a vacancy shall be declared by the judge, he shall file a written statement of all his proceedings with the clerk of the board of commissioners, to be recorded by him. Code, s. 1887; 1874-5, c. 120, s. .3. XI. Fiduciaries. 319. Executors, administrators or collectors; penalty; con- dition. Every executor from whom a bond is required by law, and every administrator and collector, before letters are issued, must give a bond payable to the state, with two or more sufficient sureties, to be justified before and approved by the clerk, conditioned that such executor, administrator or collector shall faithfully execute the trust reposed in him and obey all lawful orders of the clerk or other court touching the administration of the estate committed to him. The penalty of such bond must be at least double the value of all the personal property of the deceased ; such value to be ascertained by the clerk by examination on oath of the applicant or of some other competent person : Provided, that if the personal property of any decedent shall be insuflicient to pay his debts and the charges of administration, and it shall become necessary for his executor or administrator to apply for the sale of real estate for assets, and the bond previously given is not double the value of both the real and personal estate of the deceased, such executor (if bond is required of him by law) or administrator shall, before or at the time of filing his petition for such sale, give another bond payable and conditioned as the one above prescribed and with like security, in double the value of the real estate for the sale of which application shall be made. Code, s. 1388; 1870-1, c. 93: C. C. P., s. 468. Note. See Administration, s. 29. 320. Public administrator. The public administrator shall enter into bond, with three or more sureties, approved by the clerk, in the penal sum of eight thousand dollars, payable to the state of North Carolina, conditioned faithfully to perform the duties of his office, and obey all lawful orders of the clerk or other court touching the administration of the several estates that may come into his hands, and such bond shall be renewed cveiw two years. When- 320 BOXDS— Z/. Fiduciaries. Ch. 9 ever the aggregate value of the real and personal property belong- ing to the several estates in the hands of the public administra- tor shall exceed the one-half of his bond, the clerk shall require him to enlarge his bond in amount so as to cover, at all times, at least the double of such aggregate. Code, ss. 1390, 1391, 1392; 18G8-9, c. 113, ss. 2, 3, 4. Note. See Administration, s. 19. 321. Public guardian. The public guardian shall enter into bond with three or more sureties, approved by the clerk of the superior court, in the penal sum of six thousand dollars, payable to the state of North Carolina, conditioned faithfully to perform the duties of his office and obey all lawful orders of the superior or other courts touching said guardianship of all wards, money or estate that may come into his hands. Code, s. 15.57; 1874-5, c. 221, s. 2. 322. Public guardian's bond enlarged. Whenever the aggregate value of the real and personal estate belonging to his several wards shall exceed one-half the bond herein required the clerk of the superior court shall require him to enlarge his bond in amount so as to cover at least double the aggregate amount under his control as guardian. Code, s. 1558; 1874-5, c. 221, s. 3. 323. Guardians to give bond; condition. Every guardian of an estate, before letters of appointment are issued to him, must give a bond jiayable to the state, with two or more sufficient sureties, to be acknowledged before and approved by the clerk of the superior court, and to be jointly and severally bound. The penalty in such bond must be double, at least, the value of all personal property, and the rents and profits issuing from the real estate of the infant; which value is to be ascertained by the clerk of the superior court by the examination, on oath, of the applicant for guardianship, or of any other person. The bond must be conditioned that such guardian shall faithfully execute the trust reposed in him as such, and obey all lawful orders of the clerk or judge, touching the guardianship of the estate committed to him: Provided, if on appli- cation by the guardian by petition the court or judge shall decree a sale for any of the causes set forth in section one thousand seven hundred and ninety-eight of the property of sucli infant, idiot, luna- tic or insane person, before such sale be confirmed, the guardian shall be required to file a bond as noAV required in double the amount of the real property so sold. Code, s. 1574; R. C, e. .54, s. 5; 1762, c. G9, s. 7; 1825, c. 1285, s. 2; 1833, c. 17; 1868-9, c. 201, s. 11; 1874-5, c. 214. 324 BOXDS— A'/. Fiduciaries. Ch. 9 324. Guardian to renew bond every three years. Every guar- dian shall renew his bond before the clerk of the superior court every three years during the continuance of the guardianship. Code, s. 1581. CHAPTEE 10. BOUNDARIES. (Sections .•!25 — .32(3.) 325. May be established by special proceeding. The owner of land, any of whose boundary lines are in dispute, may establish any of such lines by special proceedings in the superior court of the county in which the land or any part thereof is situated. 1S93, c. 22. 326. Procedure for establishing. The owner shall file his peti- tion under oath stating therein facts sufficient to constitute the location of such line as claimed by him and making defend- ants all adjoining owners whose interest may be affected by the location of said line. The clerk shall thereupon issue summons to the defendants as in other cases of special proceedings. If the defendants fail to answer, judgnnent shall be given establishing the line according to petition. If the answer deny the location set out in the petition, the clerk shall issue an order to the county surveyor or, if cause shown, to any competent surveyor to survey said line or lines according to the contention of both parties, and make report of the same with a map at a time to be fixed by the clerk, not more than thirty days from date of order; to which time the cause shall be continued. The catise shall then be heard by the clerk upon the location of said line or lines and judgment given determining the location thereof: Provided, that either party may within ten days after such determination by the clerk serve notice of appeal from the ruling of the clerk determining the said location. When notice of appeal is served it shall be the duty of the clerk to transmit the issues raised before him to the next term of the superior court of the county for trial by a jury, when the qiaestion shall be heard de novo. When final judgment is given in this proceeding the court shall issue an order to the said surveyor to run and mark said line or lines as determined in the judgment. The surveyor shall 326 BOUXDAKIES. Ch. 10 make report including a map of the line as determined, which shall be filed with the judgment roll in the cause and entered with tlie judgment on the special proceedings docket. The procedure under this chapter, the jurisdiction of the court, and the right of appeal shall, in all respects, be the same as in special proceedings except as herein modified. The occupation of land shall constitute sufficient ownership for the purposes of this chapter. 1S93, e. 22; 1903, c. 21. XoTK. For iulditional remedv when leconls are burned, see s. 328. CHAPTER 11. BURNT AND LOST RECORDS. (Sections 327—345.) 327. Certified copies of destroyed records received in evidence. Whenever the office of any registry- shall have been, or may be destroyed by fire or other accident, and the records and other papers thereof be burnt or destroyed, the copies of all such proceedings, instruments and papers as are of record or registry, certified by the proper officer, though without the seal of office, shall be received in evidence whenever the original or duly certified exemplifications would be. Such copies, when the court shall be satisfied of their genuineness, may be ordered to be recorded or registered. Code, s. 55. 328. Original papers may be again recorded: survey may be made by petition before clerk. All original papers, once admitted to record or registry, whereof the record or registry is destroyed, may, on motion, be again recorded or registered, on such proof as the court shall require. Whenever any conveyance of real estate, or any right or interest tliercin, shall have been lost, the registry thereof being also destroyed, any person claiming under the same may cause the boundaries thereof to be established in the manner ])rovidc(l for in cha])t('r ten, (ir lie may ])r(iceed in the fullow- ing manner to establisli both the boundaries and nature of his estate: lie shall file his petition before the clerk of the superior court, setting, forth the location and boundaries of his land, whose .■!2S BURNT AXD LOST RECORDS. Cb. 11 land it adjoins, and the estate claimed therein, and praying to have his own boundaries established, and the nature of his estate declared. All persons claiming any estate in the premises, and those whose lands adjoin, shall be notified of the proceedings, and thereupon, unless they or some of them shall, by answer on oath, deny the truth of the matters alleged, or some of them, the clerk of the superior court shall order a surveyor to run and designate the boundaries of the petitioner's land, return his siirvey, with the plot thereof, to court, which, when confirmed, shall, with the declaration of the court as to the nature of the estate of the petitioner, be registered and have, as to the persons notified, the effect of a deed for the same, executed by the person possessed of the same, next before the petitioner: Provided, that in all cases wherein the process of surveying shall be disputed, and the surveyor shall be forbidden to proceed by any person interested, the same pro- ceedings shall be had as under chapter ten. The petitioner shall set forth the whole substance of the conveyance as truly and specifically as he can, and if any of the persons notified shall, by answer, deny the truth thereof, the clerk of the superior court shall transfer the issues of fact to the superior court at term, to be tried as other issues of fact are required by law to be tried, and on their verdict and the jDleadings, the judge shall adjiidge the rights of the parties, and declare the contents of the deed, if any deed be found by the jury, and allow the registration of such judgment and declaration, which shall have the force and effect of a deed. Code, s. 56. 329. Copies of lost wills may be admitted to probate. In all counties where the original wills on file iu the office of the clerk of superior court, and will-books containing copies, have been or may be lost or destroyed, if the executor or any other person has pre- served a copy of a will (the original being so lost or destroyed) with a certificate appended, signed by a clerk' of the court in whose office the will was, or is required to be filed, and stating that said copy is a correct one, such copy may be admitted to probate, imder the same rules and in the same manner as now prescribed by law for proving wills ; and the proceedings in such cases shall be the same as though such copy was the original offered for the first time for probate, except tliat the clerk who signed such certificate shall, on oathj acknowledge his signature, or in case it shall appear that said clei-k has died or left the state, then his signature shall be proven by a competent witness ; and the witness or witnesses to the original, who may be examined, shall be required to swear that he or they signed in the presence of the testator and by his direction a paper writing purporting to be his last will and testament. Code, s. 57. 330 BUEXT AATD LOST EECOEDS. Ch. 11 330. Certified copy of will evidence; letters testamentary granted. In any action or proceeding at law', wherein it may become necessary to introduce such will to establish title, or for any other purpose, a copy of the will and of the record of the probate, with a certificate signed by the clerk of the superior court for the county where the will may be recorded, stating that said record and copy are full and correct, shall be admitted as competent evidence; and when a copy of a will shall have been admitted to probate, the clerk of the superior court shall thereupon issue letters testamentary. Code, s. 5S. 331. Contents of destroyed will proved on petition before clerk. Any person desirous of establishing the contents of a will destroyed as aforesaid, there being no copy thereof, may tile his petition in the office of the clerk of the superior court, setting forth the entire contents thereof, according to the best of his knowledge, information and belief, and all persons having an interest imder the same shall be made j^arties, and if the truth of such petition be denied, the issues of fact shall be transferred to the superior court at term for trial by a jury, whether the will was recorded, and if so recorded, the contents thereof, and the declarations of the judge, shall be recorded as the will of the testator. Any devisee or legatee shall be a competent witness as to the contents of every part of said will, except such as may concern his own interest in the same. Code, s. 59. 332. Destroyed judgments and proceedings perpetuated by petition in court having original jurisdiction. Every person desir- ous of perpetuating the contents of any destroyed judgTQents, orders or proceedings of court, or any paper admitted to record or regis- tration, or directed to be filed for safe keeping, other than wills or conveyances of real estate, or some right or interest therein, or any deed or other instrument of writing, required to be recorded or registered but not having been recorded or registered, it being com- petent to register or record said deed or other instrument at the time of its loss or destruction, may file his petition in the court having jurisdiction of like matters with the original proceeding, setting forth the substance of the whole record, deed. ]>roecoding, or l^aper, which he desires to perpetuate, and if, on the hearing, the court shall declare the existence of such record, deed, or proceeding, or paper at the time of tlie burning of the ofiice wherein the same was lodged or ke]it, or other destruction thereof, and that the same was there destroyed, and shall declare the contents thereof, such declaration shall be recorded or registered, or filed, according to the nature of the paper destroyed. Code. s. 60. 90 333 BUEIvrT AXD LOST RECOEDS. Ch. 11 333. Color of title, how determined. Every person who shall have been in the continual, peaceable and quiet possession of land, tenements, or hereditaments, situated in the county, claiming, using and occupying them as his owti, for the space of seven years, under known boundaries, the title thereto being out of the state, shall be deemed to have been lawfully possessed, under color of title, of such estate therein as has been claimed by him during his possession, although he may exhibit no conveyance therefor: Provided, that such possession shall have commenced before the destruction of the registry office, or other destruction as aforesaid, and also that any such person, or any person claiming by, through or under him, will make affidavit and produce such proof as shall be satisfactory to the court that the possession was rightfully taken; and if taken under a written conveyance, that the registry thereof was destroyed by fire or other means, or was destroyed before registry as afore- said, and that neither the original, nor any copy thereof, is in existence: Provided further, that such presumption shall not arise against infants, persons of nonsane memory, and persons residing out of the state, who were such at the time of possession taken, and were not therefore barred, nor were so barred at the time of the burning of the office or other destruction. Code, s. 61. 334. Action on destroyed official bonds. Actions on official or other bonds lodged in any office which are destroyed with the reg- istry thereof, may be prosecuted by petition against the principal and sureties thereto, and the proceedings shall be as in the former courts of equity. Code. s. 62. 335. Witness tickets destroyed, others filed. The court having jurisdiction of the action may allow other witness tickets to be filed in place of such as may be destroyed, upon the oath of the witness or other satisfactory proof. Code, s. 63. 336. Lost conveyances, how replaced. Where any conveyance executed by any person, sherifF, clerk and master, or commissioner of court has been lost, and registry thereof destroyed as aforesaid, and there is no copy thereof, such persons, whether in or out of office, may execute another of like tenor and date, reciting therein that the same is a duplicate, and such deed shall be evidence of the facts therein recited, in all cases wherein the parties thereto are dead, or are incompetent witnesses to prove the same, to the extent as if it was the original conveyance. Code, s. 64. 91 337 BTTRXT AND LOST RECORDS. Ch. 11 337. Records of courts admissible to prove contents of deeds, wills, etc. The records of any court in or out of the state, and all transcripts of such i-ecords, and the exhibits filed therewith in any case, shall be admissible to prove the existence and contents of all deeds, wills, conveyances, depositions and other papers, copies whereof are therein set forth or exhibited in all cases where the records and registry of such as were or ought to have been recorded and registered, or the originals of such as were not proper to be recorded or registered, have been destroyed as aforesaid, although such transcripts or exhibits may have been informally certified ; and when offered in evidence shall have the like effect as though the transcript or record was the record of the court whose records are destroyed, and the deeds, wills and conve.yances, depositions and other papers therein copied or therewith exhibited, were original. Code, s. G5. 338. Copies of deeds, etc., mentioned in preceding section may be registered. The copies aforesaid of all such deeds, wills, convey- ances and other instruments proper to be recorded or registered, as are mentioned in the preceding section, may be recorded or registered on application to the clerk of the superior court, and due proof that the original thereof was genuine. Code, s. 66. 339. Rules for petitions under this chapter. The following rules shall be observed in petitions and motions imdcr this chapter: The facts stated in every petition or motion shall be verified by affidavit of the petitioner that they are true according to tlie best of his knowledge, information and belief; the instrument or paper sought to be established by any petition shall be fully set forth in its substance, and its precise language shall be stated when the same is remembered. All persons interested in the prayers of the petition or decree, shall be made ])arties. Petitions to establish a record of any court shall be filed at term in the superior court of the county where the record is sought to be established. Other petitions may be filed in the office of the clerk of the superior court. The costs of every action under this chapter shall be paid as the court may decree. Appeals shall be allowed as in all other cases, and where the error alleged shall be an erroneous finding by the superior court at term, of a matter of fact, the same may be removed on appeal to the supreme court, and the proper judgments directed to be entered below. And it shall be presumed that any order or record of the court of pleas and quarter sessions, which was made and has been lost or destroyed, was m:ido by a legally constituted 339 BURNT AND LOST EECORDS. Ch. 11 court, and the requisite number of justices, without naming said justices. Code, s. G7; 1893, c. 295. 340. Records allowed under this chapter have same effect as original. The records and registries allowed by the court in pui'- suance of this chapter shall have the same force and effect as original records and registries. Code, s. 68. 341. Recitals of decrees, records, etc., in deeds executed prior to destruction thereof prima facie evidence of existence. The recitals, reference to, or mention of any decree, order, judgment or other record of any court of record of any county in which the courthouse, or records of said courts, or both, have been destroyed by fire or otherwise, contained, recited or set forth in any deed of conveyance, paper writing, or other bona fide written evidence of title, executed prior to the destruction of the courthouse and records of said county, by any executor or administrator with a will annexed, or by any clerk and master, superior court clerk, clerk of the court of pleas and qiiarter sessions, sheriff, or other oflicer, or commis- sioners appointed by either of said courts, and authorized by law to execute said deed or other paper writing, shall be deemed, taken and recognized as true in fact, and shall be prima facie evidence of the existence, validity and binding force of said decree, order, judgment or other record so referred to or recited in said deed, or jiaper writing, and shall be to all intents and purposes binding and valid against all persons mentioned or described in said instni- ment of writing, deed, etc., as purporting to be j^arties thereto, and against all persons who were parties to said decree, judgment, order or other record so referred to or recited, and against all persons claiming by, through or under them or either of them. Code, s. 09. 342. Deed prima facie evidence of records recited therein. Such deed of conveyance, or other paper writing, executed as afore- said, and registered according to law, shall be allowed to be read in any suit now pending or which may hereafter be institiated in any court of this state, as prima facie evidence of the existence and validity of the decree, judgment, order, or other record upon which the same purports to be founded, without any other or further resto- ration or reinstatement of said decree, order, judgment, nr record, than is contained in this chapter. Code, s. 70. 343 BURXT AXD LOST RECORDS. Ch. 11 343. Provisions of tiiis chapter extend to what records, etc. This chapter shall extend to records of any coiirt which has been, or may be destroyed by fire or otherwise, and to any deed of con- veyance, paper writing, or other bona fide evidence of title executed before the destruction of said records. Code, s. 71. 344. Certain records in Moore county presumed to have been burned. In all cases in J\[oi:ire count_y of bonds, indentures, accounts, minutes, judgment rolls and all other records that can not be found on record or on file in the said clerk's office after diligent search there- for by the clerk of the court, and can not be otherwise accounted for, the same having been on record or file therein on or before September fifth, one thousand eight hundred and eighty-nine, shall be presumed to have been destroyed by fire. In all cases in which said bonds, in- dentures, accounts, minutes, judgment rolls and other records or any part thereof have been lost or destroyed and in which it may become necessary to use the same in evidence, it shall be presumed that the same were executed, filed, audited or adjudicated, as the case may be, in due and legal form and were in all respects lawful records and documents. 1891, 0. 55. 345. In Buncombe, Madison, Yancey and Haywood counties. Whenever any of the records of any of the courts in this state have been burnt, lost or destroyed, and there is in existence any copy thereof, or of any part of the same, duly certified, whether under the seal of the court or otherwise, by any former clerk of said court, it shall be the duty of the present clerk of said court, or any clerk of said court hereafter in office, upon presentation to him of such copy and the payment of his lawful fees therefor, to record said co]iy upon the minutes or records of said court; and after the same shall have been so recorded the record then shall be used as and be taken and deemed and shall have all the force and effect of the original record so burnt, lost or destroyed ; and such record thereof, or a copy of the same duly certified by the clerk of said court, shall be in all respects competent in the same way and manner as the original record in all the courts of this state. This section shall apply only to the counties of Buncombe, Madison, Yancey and Haywood. 1905, c. 308. 346 CIVIL PROCEDUEE. Ch. 12 CHAPTER 12. CIVIL PROCEDURE. I. Definitions, II. General provisions, III. Limitations, general provisions, IV. Limitations, real property, V. Limitations, other than real property, VI. Parties. VII. Venue, VIII. Summons, IX. Prosecution bonds, X. Joint and several debtors, XI. Lis pendens, XII. Complaint, XIII. Defendant's pleadings, XIV. Demurrer, XV. Answer, XVI. Reply, XVII. Pleading, general provisions, XVIII. Amendments. XIX. Variance between pleading and proof, XX. Reference, XXI. Trial, XXII. Issues, XXIII. Verdict, XXIV. .Judgment, XXV. Judgment confessed, XXVI. Appeal, XXVII. Execution, XXVIII. Execution sales, XXIX. Betterments, XXX. Supplemental proceedings, XXXI. Property exempt, etc., XXXII. Special proceedings, XXXIII. Arrest and bail, XXXIV. Attachment, XXXV. Claim and delivery, XXXVI. Controversy without action. XXXVII. Injunction, XXXVIII. Mandamus, XXXIX. Nuisance, XL. Quo warranto, XLI. Receivers, XLII. Trust funds sununarily protected, XLIII. Waste, XLIV. Compromise, XLV. Examination of parties, XLVI. Motions and orders, XLVII. Notices, XLVIII. Time, Sections. 346— .352 353—358 359—379 380—389 390—399 400—418 419-^28 429—449 450 — 454 455 — 459 460 — 464 465—469 470^73 474^78 479—483 484 — 486 487—504 505—514 515—517 518— .525 526—543 544—549 550—554 555—579 580—582 583—614 615—640 641—651 652—666 667—684 685—709 710—725 726—757 758—789 790—802 803—805 806—821 822—824 825 826—845 846—849 850—852 853—858 859—863 864—872 873—877 878—886 95 346 CIVIL PKOCEDrEE— /. DcftnUions. Ch. 12 I. Definitions. 346. Remedies. lieiuedies in the courts of justice are divided into — 1. Actions. 2. Special proceedings. Code, s. 125; C. C. P., s. 1. 347. Actions. An action is an ordinary proceeilini;' in a court of justice, by wliicli a party jn-osecntes another party for the enfoi'ce- ment or protection of a right, the redress or prevention of a wrong, or the pnnishment or prevention of a public offense. Code, s. 126; C. C. P., s. 2; 1868-9, c. 277, s. 2. 348. Special proceedings. Every other remedy is a special pro- ceeding. Code, s. 127; C. C. P., s. 3. 349. Kinds of actions. Actions are of two kinds — 1. Civil. 2. Criminal. Code, g. 128; C. C. P., s. 4. 350. Criminal action. A criminal action is — 1. An action prosecuted by the state as a party, against a person charged with a public offense, for the punishment thereof. 2. An action prosecuted by the state, at the instance of an in- dividual, to prevent an apprehended crime against his person or property. Code, s. 129; C. C. P., s. 5; Const., Art. IV, s. 1. 351. Civil action. Every other is a civil action. Code, s. 130; C. C. P., s. 6. 352. Court means Clerl<, Wlien. In those of the following enact- ments which confer jurisdiction or power, or impose duties, when the words "superior court," or "court," in reference to a superior court are used, they mean the clerk of the superior court, unless otherwise specially stated, or unless reference is made to a regular term of the court, in wliich cases the judge of the court alone is meant. Code, S. 132; C. C. P., s. 9. Note. See s. 3.'">8. 353 CIVIL PKOCEDUEE— 77. General Provisions. Cli. 12 II. GENERAL Provisions. 353. Remedies not merged. Where the violation of a right udmits both of a civil ami a criminal remedy, the right to prosecute the one is not merged in the other. Code, s. 131; C. C. P., s. 7. 354. One form of action. The distinction between actions at law and suits in equity, and the forms of all such actions and suits, heretofore existing, are abolished, and there shall be hereafter but one form of action for the enforcement or protection of private rights, and the redress of j^rivate wrongs, which shall be denominated a civil action. Code, s. 133; C. C. P., s. 12: Const.. Art. IV, s. 1. 355. Parties known as plaintiff and defendant. In .such action, the party complaining shall be kno^^^l as the plaiutifF, and the adverse party as the defendant. Code, s. 134; C. C. P., s. 13. 356. How party may appear. A party may appear in actions or proceedings in which he is concerned either in person or by attorney. Code, s. 100; C. C. P., s. 423. 357. Feigned issues abolished. Feigned issues are abolished, and instead thereof, in the cases where the power formerly existed to order a feigned issue, or when a question of fact not put in issue by the pleadings, is to be tried by a jury, an order for the trial may be made by the judge, stating distinctly and plainly the question of fact to be tried ; and such order shall be the only authority necessary for a trial. Code, s. 135; C. C. P., s. 15. 358. Jurisdiction of clerk on procedure. The clerk of the supe- rior court shall have jurisdiction to hear and decide all qviestions of practice and procedure in this court, and all other matters whereof jurisdiction is given to the superior court, unless the judge of said court, or the court at a regular term thereof, be expressly referred to. Code, s. 251; C. C. P., s. 108. Note. See s. 352. III. Limitations, General Provisions. 359. When action commenced. An action is commenced as to each defendant when the summons is issued against him. Code, s. 161 ; C. C. P.. s. 40. Rev. Vol. 1—4 97 360 CIVIL PROCEDURE— 7/7. Llm., Gen. Provisions. Cli. 12 360. Run from cause of action accrued; objection taken by answer. CiA'il aetiuus call only be eiiuiuu'iiecnl within the periods prescribed in this chapter, after the cause of action shall have accrued, except where in special cases a different limitation is prescribed bv statute. But the objection that the action was not connnenced within the time limited can only be taken by answer. Code, s. 138; C. C. P., s. 17. 361. Deemed pleaded by insane party. On the trial of any action or special proceeding to which an insane person has been made a party, such insane person shall be deemed to have pleaded specially any defense, and shall on trial have the benefit of any defense, whether- pleaded or not, that might have been made for him by his guardian or attorney under the provisions of this chapter. And the court, at any time before the action or proceeding is finally disposed of, may order the bringing in, by proper notice, of one or more of the near relatives or friends of such insane person, and may make such other order as it may deem necessary for his proper defense. 1889, c. 89, s. 2. 362. Disabilities. If a person entitled to commence an action, except for a jjenalty or forfeiture, or against a sheriff or other officer for an escape, be at the time the cause of action accrued, either, 1. Within the age of twenty-one years; or 2. Insane; or 3. Imprisoned on a criminal charge, or in execution \inder sen- tence for a criminal offense; Then such person may bring his action within the times herein limited, after the disability shall be removed, except in an action for the recovery of real property, or to make an entry or defense fotmded on the title to real property, or to rents and services out of the same, when he shall commence his action, or make his entry, within three years next after the removal of the disability, and at no time thereafter. Code, ss. 148, 163; C. C. P., ss. 27, 142; 1899, c. 78. Note. For disabilities in an action to rccovor land sold for taxes, see s. 2909. 363. Disability of marriage. In any action in which the defense of adverse jtossession is relied u])on, the time computed as constitu- ting such adverse possession shall not inchide any possession had against a feme covert during coverture prior to February thirteenth, one thousand eight hundred and ninety-nine. 1899, c. 78, S3. 2, 3. 304 CIVIL PROCEDUEE— 777. TAm., Gen. Provisions. C'li. 12 36i4. Cumulative disabilities. When two or more disaliilities shall co-exist at the time the right of action accnies, or when one disa- bility shall supervene an existing one, the limitation shall not attach nntil they all be removed. Code, ss. ]4!), 170; C. C. P., ss. 28, 49. 365. Disability must exist when right of action accrues. No person shall avail himself of a disability, unless it existed when his right of action accrued. Code, s. 169; C. C. P., s. 48. 366. Defendant out of state; action begun, judgment enforced, when. If, when the cause of action accrue or judgment be rendered or docketed against any person, he shall be out of the state, action may be commenced, or judgment enforced, within the times herein respectively limited, after the return of such person into this state, and if, after such cause of action shall have accrued or judgment rendered or docketed, such person shall depart from and reside oiit of this state, or remain continuously absent therefrom for the space of one year or more, the time of his' absence shall not be deemed or taken as any part of the time limited for the commencement of such action, or the enforcement of such judgment. This section shall apply to all actions that have accrued and judgments rendered, transferred or docketed since the twenty-fourth day of August, one thousand eight hundred and sixty-eight. Code, s. 162; C. C. P., s. 41; 1881, c. 258, -ss. 1, 2, 367. Death before limitation expires; action by or against exec- utor, when. If a person entitled to bring an action die before the expiration of the time limited for the commencement thereof, and the cause of action survive, an action may be commenced by his representatives after the expiration of that time, and within one year from his death. If a person against whom an action may be brought die before the expiration of the time limited for the com- mencement thereofj and the cause of action survive, an action may be commenced against his personal representative after the expira- tion of that time, and within one year after the iss\iing of letters testamentary or of administration, provided such letters are issued within ten years of the death of such person. But if the claim upon which such cause of action is based be filed with the personal repre- sentative within the time above specified, and the same shall be admit- ted by him, it shall not be necessary to bring an action upon such claim to prevent the bar : Provided, that no action shall be brought against the personal representative upon such claim after his final settle- ment. Code, s. 164; C. C. P., s. 43; 1881, c. 80. Note. See s. 91 et seq. 368 CIVIL PEOCEDURE— ///. Lim., Gen. Provisions. Ch. 12 368. Time of stay by injunction or prohibition. When the, com- mencement of an action shall be stayed by injnnction or statiitory prohibition, the time of the continuance of the injunction or pro- hibition shall not be part of the time limited for the commencement of the action. Code, s. 167; C. C. P., s. 46. 369. Time during controversy on probate of will or granting letters. In reckoning time when pleaded as a bar to actions, that period shall not be counted which elapses during any controversy on the probate of a will or granting letters of administration, unless there be an administrator appointed during the pendency of the action, and it be jjrovided that an action may be brought against him. Code, s. 168; C. C. P., s. 47. 370. New action within one year after nonsuit, etc. If an action shall be commenced within the time prescribed therefor, and the plaintiff be nonsuited, or a judgment therein be reversed on appeal, or be arrested, the plaintiff, or if he die and the cause of action survive, his heir or representative, may commence a new action within one year after such nonsuit, reversal, or arrest of judgment. Code, ss. 142, 166; C. C. P., ss. 21, 4.5. 371. New promise must be in writing. Xo acknowledginent or promise shall be received as evidence of a new or continiiing con- tract, from which the statutes of limitations shall run, unless the same be contained in some writing sigmed by the party to be charged thereby ; but this section shall not alter the effect of any payment of principal or interest. Code, s. 172; C. C. P., s. 51. 372. Admission by partner after dissolution; effect. No act, admission or acknowledgment by any partner after the dissolution of the copartnership, or by any of the makers of a promissory note or bond after the statute of limitation shall have barred the same, shall be received as evidence to i-epel the statute, cxceiit against the partner or maker of the promissory note or bond, doing the act or making the admission or acknowledgment. Code, s. 171; C. C. P., s. 50. 373. Undisclosed partner. The statutes of limitations iirescriliiMJ by law shall apply to a civil action brought against an undisclo.sed partner only from the time when such partnership became known to the plaintiff. 1893, c. 151. 100 374 CIVIL PROCEDURE—///. Lhn., Gen. Provisions. Ch. 12 374. Cotenants; part barred, when. If in actions by tenants in common or joint tenants of personal property, to recover the same, or damages for the detention of, or injury thereto, any of them shall be barred of their recovery by limitation of time, the rights of the others shall not be affected thereby, but they may recover according to their right and interest, notwithstanding such bar. Code, s. 173; C. C. P., s. 52. 375. Applicable to actions by state. The limitations prescribed by lavs^ shall apply to civil actions brought in the name of the state, or for its beneiit, in the same manner as to actions by or for the benefit of private parties. Code, s. 159; C. C. P., s. 38. 376. Action on account current. In an action brought to recover a balance due upon a mutual, open and current account, where there have been reciprocal demands between the parties, the cause of action shall be deemed to have accrued from the time of the latest item proved in the account on either side. Code, s. 160; C. C. P., s. 39. 377. Not applicable to bank bills. The limitations prescribed by law shall not affect actions to enforce the payment of bills, notes or other evidences of debt, issued or put in circulation as money by moneyed corporations incorporated under the laws of the state. Code. s. 174; C. C. P., s. 53; 1874-5, c. 170. 378. Actions against bank officers and stockholders. The lim- itations prescribed by law shall not affect actions against directors or stockholders of any moneyed corporation, or banking association incorporated under the laws of this state, to recover a penalty or for- feiture imjjosed, or to enforce a liability created by law; but such actions must be brought within three years after the discovery by the aggrieved party of the facts ujion which the penalty or forfeiture attached, or the liability was created. Code, s. 175; C. C. P., s. 54. 379. Aliens in time of war. When a person shall be an alien subject, or a citizen of a country at war with the United States, the time of the continuance of the war shall not be part of the period limited for the commencement of the action. Code, s. 165; C. C. P., s. 44. 380 CIVIL PEOCEDUEE— ZT'. Lim., Beal PropeHy. Ch. 12 IV. LiiiiTATioNS, Eeal Peoperty. 380. Title against state. The state will not sue any person for, or in respect of, any real ]>ropert_v, or the issue or profits thereof, by reason of the right or title of the state to the same — 1. When the person in jDOssession thereof, or those under whom he claims, shall have been in the adverse possession thereof for thirty years, such possession having been ascertained and identified under known and visible lines or boim^daries ; which shall give a title in fee to the possessor. 2. When the person in possession thereof, or those under whom he claims, shall have been in possession under colorable title for twenty-one years, such possession having been ascertained and identi- fied under known and visible lines or boundaries. Code, s. 139; C. C. P., 18; R. C, e. 65, s. 2. 381. Such possession valid against claimants under state. All such possession as is described in the preceding section, under such title as is therein described, is hereby ratified and confirmed, and declared to be a good and legal bar against the entry or suit of any person, under the right or claim of the state. Code, s. 140; C. C. P., s. 19. 382. Seven years' possession under color. When the person in possession of any real property, or those under whom he claims, shall have been possessed of the same, under known and visible lines and boundaries, and under colorable title for seven years, no entry shall be made or action sustained against such possessor by any person having any right or title to the same, except during the seven years next after his right or title shall have descended or accrued, who in default of suing within the time aforesaid, shall be excluded from any claim thereafter to be made; and such possession, so held, shall be a perpetual bar against all persons not under disability. Code, s. 141; C. C. P., s. 20. Note. See s. 333. 383. Seizin within twenty years, when necessary. Xo action for the recovery of real property, or the ]iossession tliereof, shall be maintained, unless it appear that the plaintiff, or those under whom he claims, was seized or possessed of the premises in question within twenty _years before the commencement of such action, unless he was under the disabilities prescribed by law. Code, s. 143; C. C. P., s. 22. 384. Twenty years' adverse possession. No action for tlic recovery of real property, or the poss(>ssion thereof, or the issues 384 CIVIL PEOCEDUEE— 77. Lim., Real Property. Ch. 12 and profits thereof, shall be maintained' when the person in posses- sion thereof, or the defendant in such action, or those under whom he claims, shall have possessed such real property under known and visible lines and boundaries adversely to all other persons for twenty years; and such possession so held, shall give a title in fee to the possessor, in such property, against all persons not under disability. Code, s. 144; C. C. P., s. 23. 385. Action after entry. No entry upon real estate shall be deemed sufficient or valid, as a claim, unless an action be commenced thereupon within one year after the making of such entry, and within the time prescribed in this chapter. Code, s. 145; 0. C. P., s. 24. 386. Possession follows legal title, when. In every action for the recover^' of real property, or the possession thereof, or damages for a trespass on such possession the person establishing a legal title to the premises shall Ije presumed to have been possessed thereof within the time required by law ; and the occupation of such premises by any other person shall be deemed to have been under and in subordination to, the legal title, unless it appears that such premises have been held and possessed adversely to such legal title, for the time prescribed by law before the commencement of such action. Code, s. 146; C. C. P., s. 25. 387. Tenant's possession is landlord's. Whenever the relation of landlord and tenant shall have existed between any persons, the possession of the tenant shall be deemed the possession of the land- lord, until the expiration of twenty years from the termination of the tenancy; or where there has been no written lease, until the expiration of twenty years from the time of the last payment of rent, notwithstanding that such tenant may have acquired another title, or may have claimed to hold adversely to his landlord. But such presumptions shall not be made after the periods herein limited. Code, s. 147; C. C. P., s. 20. 388. No title by possession of right of way. No railroad, plank road, turnpike or canal company shall be barred of, or presumed to have conveyed, any real estate, right of way, easement, leasehold, or other interest in the soil which may have been condemned, or otherwise obtained for its use, as a right of way, depot, station- house or place of landing, by any statute of limitation or by occupa- tion of the same by any person whatever. Code, s. 150; C. C. P., s. 29; R. C, c. 65, s. 23. 389 CIVIL PEOCEDrrvE— /r. Li in.. Bed Property. Ch. 12 389. No title by possession of streets and higtiways. Xo per- son or corporation shall ever acquire any exclusive riglit to anv part of any public road, street, lane, alley, square or public way of any kind by reason of any occupancy thereof or by encroaching upon or obstructing the same in any way, and in all actions, whether civil or criminal, against any person or corporation on acco^mt of any encroachment upon or obstruction of or occupancy of any public way it shall not be competent for any court to hold that such action is barred by any statute of limitations. 1891, c. 224. V. Limitations^ Other Tiiak Real PnorERTv. 390. Periods prescribed. The periods prescribed for the com- mencement of actions, other than for the recovery of real property, shall be as set forth in this subchapter. Code, s. 151; C. C. P., s. 30. 391. Ten years. Within ten years — 1. An action upon a judgment, or decree of any court of this state, or of the United States, or of any state or territory thereof, from the date of the rendition of said judgment or decree. But no such action shall be brought more than once, nor have the effect to continue the lien of the original judgment. 2. An action upon a sealed instrument against the principal thereto. 3. An action for the foreclosure of a mortgage, or deed in trust for creditors with a power of sale, of real property, where the mortgagor or grantor has been in possession of the property, within ten years after the forfeiture of the mortgage, or after the power of sale became absolute, or within ten years after the last payment on the same. 4. An action for the redemption of a mortgage, where the mort- gagee has been in possession, or for a residuary interest under a deed in trust for creditors, where the trustee or those holding under him shall have been in possession, within ten years after the right of action accrued. Code, s. 152; C. C. P., ss. 14, 31. Note. For time within which power of sale in mortgage may be e.xecuted. see Conveyances, s. 1044. Running of statiite against judgment suspondod by laying off bomeslcad of judg ment debtor, see s. GR.'i. 392. Seven years. Within seven years — 1. An action on a judgment rendered by a justice of the peace, from the date thereof. 2. By any creditor of a deceased person against his personal or real representative, within seven years ne.xt after the qiuilifieatinu 104 392 CIVIL PEOCEDUEE— 7. Lim., Other than Real Pr. Ch. 12 of the executor or administrator and his making the advertisement required by law, for creditors of the deceased to present their claims, where no personal service of such notice in writinc; is made upon the creditor; and a creditor thus barred of a recovery against the representative of any principal debtor shall also be barred of a recovery against any surety to such debt. Code, s. 153; C. C. P., s. 32. 393. Six years. Within six years — 1. An action upon the official bond of any public officer. 2. An action against any executor, administrator, collector, or guardian on his official bond, within six years after the auditing of his final accounts by the proper officer, and the filing of such audited account as required by law. 3. An action for injury to any incorporeal hereditament. Code, s. 154; C. C. P., s. 33. Note. For limitations against officers of a corporation, improper payment of dividends, etc., see Corporations. 394. Five years. Within five years — 1. No suit, action or proceeding shall be brought or maintained against any railroad company owning or operating a railroad for damages or compensation for right of way or use and occupancy of any lands by said company for use of its railroad unless such suit, action or proceeding shall be commenced within five years after said lands shall have been entered upon for the purpose of constructing said road, or within two years after said road shall be in operation. 2. No suit, action or proceeding shall be brought or maintained against any railroad company by any person for damages caiised by the construction of said road, or the repairs thereto, unless such suit, action or proceeding shall be conunenced Avithin five years after the cause of action accrues, and the jviry shall assess the entire amount of damages which the party aggrieved is entitled to recover by reason of the trespass on his property. Note. See Three Years. 1893, c. 152: 1895, c. 224; 1897, c. 339. 395. Three years. Within three years — 1. An action upon a contract, obligation or liability arising out of a contract, express or implied, except those mentioned in the preceding sections. 2. An action upon a liability created by statute, other than a penalty or forfeiture, unless some other time be nuMitioned in the statute creating it. 3. An action for trespass upon real property. Wlicn tlie trespass is a continuing one, such action shall be commenciHl within three years from the original trespass, and not thereafter. 105 395 CIVIL PROCEDUEE—r. Dim., Other than Real Pr. Ch. li' 4. An action for taking, detaining, converting or injuring any goods or chattels, inchiding action for their specific recovery. 5. An action for criminal conversation, or for any other injury to the person or rights of another, not arising on contract and not hereinafter enumerated. 6. An action against the sureties of any executor, administrator, collector or giiardian on the official bond of their principal; within three years after the breach thereof complained of. 7. An action against bail; within three years after judgment against the principal ; but bail may discharge himself by a surrender of the principal, at anv time before final judgnnent against tlie bail. 8. Eees due to any clerk, sherift' or other officer, by the judgment of a court; within three years from the time of the judgment ren- dered, or of the issuing of the last execution therefor. 9. An action for relief, on the ground of fraud or mistake ; the cause of action shall not be deemed to have accrued until the dis- covery by the aggrieved party of the facts constituting such fraud or mistake. 10. An action for the recovery of real property sold for the nonpayment of taxes, within three years after the execution of the sheriff's deed. Code, s. 155; C. C. P., s. 34; 1895. e. 165; 1S89, cc. 269. 218; 1899, c. 15, s. 71 : 1901, c. 558, s. 23. Note. For actions against bank officers, see s. 378. In bastardy, see Bastardy, s. 260. For action for recoveiy of land sold for taxes, see s. 2912. 396. Two years. Within two years — 1. All claims against the several counties, cities and towns of this state, whether by bond or otherwise, shall be presented to the chair- man of the board of county commissioners or to the chief officers of said cities and towns, as the case may be, within two years after the maturity of such claims, or the holders of such claims shall \x forever barred from a recovery thereof. 2. An action to recover the jienalty for usury. Code, ss. 756, 3836; 1874-5, c. 243; 1876-7, e. 91, s. 3; 1895, c. 69. Note. For statute giving personal representatives two years within which to settle, see ss. 144, 155. For statute regulating conveyances by heir or devisee within two years, sec s. 70. For right of way of railroad, sec ante Five Years (1). For action on apprentice's bond, see s. 199. For suit for redemption of land sold for taxes, see s. 2913. 397. One year. Within one year— 1. An action against a sheriff, coroner or constable, or other public officer, for a trespass under color of his office. 31)7 CIVIL PKOCEDUEE— 7. Lim., Other than Real Pr. Ch. 12 2. An action npon a statute, for a penalty or forfeiture, where tlie action is given to the state alone, or in whole or in part, to the party grieved, or to a conuuon informer, except where the statute imposing it prescribes a different limitation. 3. An action for libel, assault, battery or false imprisonment. 4. An action against a sheriff, or other officer, for the escape of a prisoner arrested or imprisoned on civil process. 5. An application for a widow's year's provision. Code, s. 156; C. C. P., s. 35; 1885, c. 96. Note. For time within which personal representative may bring action for wrongful death, see s. 59. For minimum limit in contract of insurance, within which to bring suit, see Insurance, s. 4755. For limit of time for creditors to present claims to personal representative, and eflfect, see s. 94. 398. Six months. Within six months — An action for slander. Code, s. 157; C. C. P., s. 36. Note. Claim against decedent disputed by personal representative, barred in mx months, see s. 93. 399. All other actions, ten years. An action for relief not herein jjrovided for must be commenced within ten years after the cause of action shall have accrued. Code, s. 158; C. C. P., s. 37. Note. Actions to try title to office, ninety days after induction into office, see s. 834. VI. Parties. 400. Real party in interest; actions by assignees. Every action must be prosecuted in the name of tlie real party in interest, except as otherwise provided ; but this section shall not be deemed to autliorize the assigimient of a thing in action' not arising out of contract. Bvit an action may be maintained by a grantee of real estate in his own name, whenever he or any grantor or other person through whom he may derive title, might maintain such action, notwithstanding the grant of such grantor or other conveyance be void, by reason of the actual possession of a person claiming imder a title adverse to that of such grantor, or other person, at the time of the delivery of such grant or other conveyance. In the case of an assigimient of a thing in action the action by the assignee shall be without prejudice to any setoff or other defense, existing at the time of, or before notice of, the assignment; but this section shall not apply to a negotiable promissory note or bill of exchange, trans- ferred in good faith, and upon good consideration, before due. Code, s. 177; C. C. P., s. 55; 1874-5, c. 256. 401 CIVIL PEOCEDURE— T/. Parties. Cb. V2 401 . Who may sue for penalties. Where a penalty may be im- posed by any law passed or hereafter to be passed, and it shall not be provided to what person the penalty is given, it may be recovered by any one who will sue for the same, and for his own use. Code, s. 1212; R. C, c. 35, s. 47. 402. Suits for penalties brought in name of state. Whenever any penalty shall lie i;iven by statute, and it is not prescribed in whose name suit therefor may be commenced, the same shall be bronght in the name of the state. Code, s. 1213; R. C, c. 35, s. 48. 403. Action by purchaser under judicial sale. Any person let into possession under any judicial sale confirmed, where the title may be retained as a security for the price, shall be deemed the legal owner of the premises for all purposes of bringing suits for injuries thereto, after the day of sale, by trespass or wrongful jjossession taken or continued, in the same manner as if the title had been con- veyed to him on day of sale, unless restrained by some order of the court directing the sale; and the suit so brought shall be under the control of the court ordering the sale. Code, s. 942; 1858-9, e. 50. 404. Action by executor or trustee. An e.xecutor or administra- tor, a trustee of an express trust, or a person expressly authorized by statute, may sue without joining with him the person for whose benefit the action is prosecuted. A trustee of an express trust, within the meaning of this section, shall be construed to include a person with whom, or in whose name, a contract is made for the benefit of another. Code, s. 179; C. C. P., s. 57. 405. Infants, etc., sue by guardian or next friend. In actions and special proceedings whenever any of the parties plaintiff are infants, idiots, lunatics, or i^ersons non compos mentis, whether said infants, idiots, lunatics or persons non compos mentis, be residents or nonresidents of this state, said infants, idiots, luna- tics or persons non compos mentis shall appear by their general or testamentary guardian, if they have any within the state ; but if the action or jiroceeding be against such guardian, or if there be no such guardian, then said infants, lunatics or persons non compos mentis may a])pear by their next friend: Provided, however, that the duty of the state solicitors to ]u-osecute in the case specified in chapter entitled Guardian shall not be affected by the provisions of this section. Code, s. 180; 1893, c. 5; C. C. P., s. 58; 18701, c. 233; 1871-2, c. 95. 406 CIVIL PEOCEDUEE— FZ. Parties. Ch. 12 406. Infants, etc., defend by guardian ad litem. In all actions and special proceedings whenever any of the defendants are infants, idiots, lunatics, or persons non compos mentis, said infants, idiots, lunatics, or persons non compos mentis, shall defend by their gen- eral or testamentary guardian, if they have any within this state, whether said infants, idiots, lunatics, or persons non compos mentis, are residents or nonresidents of this state ; and if said infants, idiots, lunatics, or persons non compos mentis, have no general or testa- mentary guardian within this state, and any of the defendants in said action or special proceeding shall have been summoned, then it shall be lawful for the court, wherein said action or special proceed- ing is pending, upon motion of anj' of the parties to the said action, or special proceeding, to appoint some discreet person to act as guardian ad litem, to defend in behalf of such infants, idiots, luna- tics, or persons non compos mentis, and such guardian so appointed shall, if the cause in which he is appointed be a civil action, file his answer to the complaint within the time required for other defendants, unless such time be extended by the court for good cause, and if the cause in which he is so appointed be a special proceeding, a copy of the complaint, with the summons, shall be served on said guardian ad litem, and after twenty days' notice of said summons and complaint in such special proceeding, and after answer filed as above prescribed in such civil action, the court may proceed in the caiTse to final judgment, and decree therein in the same manner as if there had been personal service upon the said infant, idiot, lunatic, or person non compos mentis, defendants, and any decree or judg- ment in the case shall conclude the infant, idiot, lunatic, or person non compos mentis, defendants, as effectually as if he or they had been personally summoned. Code, s. 181: C. C. P., 3. 59; 1870-1, c. 233, s. 5; 1871-2, c. 95, s. 2. Note. See Rule 17 of Superior Court. 407. Guardian ad litem to file answer. Whenever any guardian ad litem shall be appointed, he shall file an answer in said action or special proceeding, admitting or denying the allegations thereof; the costs and expenses of which said answer, in all applications to sell or divide the real estate of said infants, shall be paid out of the proceeds of the property, or in case of a division, shall be charged upon the land, if the sale or division shall be ordered by the court, and if not ordered in any other manner the court shall direct. Code, s. 182; 1870-1, c. 233, s. 4. 408. Married women. When a married woman is a party, her husband must be joined with her except that — 1. When the action concerns her separate property, she may sue 408 CIVIL PROCEDURE— T/. Parties. Cli. 12 2. When the action is between herself and her husband, she may sue or be sued alone. And in no case need she prosecute or defend by a guardian or next friend. Code, s. 178; C. C. P., s. 56. 409. Who may be plaintiffs. All persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs except as otherwise provided. Code, s. 183; C. C. P., s. 60. 410. Who may be defendants. Any person may be made a defendant who has, or claims, an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determina- tion or settlement of the questions involved therein ; and in an action to recover the possession of real estate, the landlord and tenant thereof may be joined as defendants ; and any person claiming title or right of possession to I'eal estate may be made party plaintiff or defendant, as the case may require, to any such action. Code, s. 184; C. C. P., s. 61. 411. Several parties, how classed; action by one for a class. Of the parties to the action, those who are united in interest must be joined as plaintiff's or defendants; but if the consent of any one who should have been joined as plaintiff can not be obtained, he may be made a defendant, the reason thereof being stated in the complaint ; and when the question is one of a common or general interest of many persons, or where the parties may be very numer- o\is, and it may be impracticable to bring them all liefore the court, one or more may sue or defend for the benefit of the whole. Code, s. 185; C. C. P., s. 62. 412. Persons severally liable, suit against. Persons severally liable upon the same obligation or instriuneut, including the parties to bills of exchange and promissory notes, may all or any of them be included in the same action at the option of the jdaintiff. Code, s. 186; C. C. P., s. 63. 413. Persons jointly liable, suits against. In all cases of joint contracts of copartners in trade or others, suit may be brought and prosecuted on the same against all, or any number of the ])ersons making saich contracts. Code, s. 187; P,. C, c. 31, s. 84; 1871-2, e. 24, s. 1. 414. New parties by order of court; interpleader. Tlie court either between llie terms, or at a regular term, acccu-ditig to the nature 110 414 CIVIL PROCEDUEE— TT. Parties. Ch. 12 of the controversy, may determine any controversy before it, when it can be done without prejudice to the rights of others, or by saving their righ.ts; but when a complete determination of the controversy can not be had without the presence of other parties, the court must cause them to be brought in. And when in an action for the recovery of real or personal property, a person not a party to the action, but having an interest in tlie subject matter thereof, malies application to the court to be made a party, it may order him to be brought in by the proper amendment. A defendant against whom an action is pending upon a contract or for specific real or personal property, upon proof by affidavit that a person not a party to the action makes a demand against him for the same debt or property without collu- sion with him, may at any time before answer apply to the court, upon notice to that person and fhe adverse party, for an order to substitute that person in his place, and to discharge him from lia- bility to either, on his paying into court the amount of the debt, or delivering the possession of the property or its value to such person as the court shall direct. The court, in its discretion, may make such an order. Code, e. 189 ; C. C. P., s. 65. Note. For intervention in claim and delivery, see s. 800. For intervention in attachment, see s. 789. 415. Abatement of actions, l. No action shall abate by the death, marriage or other disability of a party, or by the transfer of any interest therein, if the cause of action survive or continue. In case of death, except in suits for penalties, and for damages merely vindictive, marriage or other disability of a party, the court, on motion at any time within one year thereafter, or afterwards on a supplemental complaint, may allow the action to be continued, by, or against, his representative or successor in interest. In case of any other transfer of interest, the action shall be continued in the name of the original party, or the court may allow the person to whom the transfer is made, to be substituted in the action. 2. After a verdict shall be rendered in any action for a wrong, such action shall not abate by the death of a party. 3. At any time after the death, marriage, or other disability of the party plaintifl^, the court in which an action is pending, iipon notice to such persons as it may direct, and upon application of aay person aggTieved, may, in its discretion, order that the action be deemed abated^ unless the same be continued by the proper parties, within a time to be fixed by the court, not less than six months, nor exceeding one year from the granting of the order. 4. i^o action against a receiver of a corporation shall abate by reason of his death, but, upon suggestion of the facts on the record, 415 CIVIL PROCEDURE— IT. Partks. Ch. 12 shall be coutinued against his successor, or agaiust the corporatiini in case no new receiver be appointed. Code, s. 188: 1901. c. 2. s. 85; C. C. P., s. 04; R. C. c. 1, s. 4; c. 40. s. 43. 416. Death of party suggested before clerk. Whenever any party to any action in the superior court shall die pending the action, the death of such party may be suggested before the clerk of the superior court where the action is pending during vacation. 1887, c. 389. 417. Clerk to summon party succeeding to rights or liabilities; answer. When the suggestion of the death of a party has been made before any clerk, it shall be the duty of such clerk to issue a sum- mons to the party who succeeds to the rights or liabilities of the defendant commanding him to appear before him on a day to be named in said summons, which shall be at least twenty days after the service thereof, and answer the complaint, and the issue joined by the filing of the said answer shall stand for trial at the term of the superior court next following. 1887, c. 389, 9. 2. 418. Clerk to notify party succeeding to rights of deceased plaintiff. When the plaintiil shall die and the suggestion of the death of a party is made, it shall be the duty of the clerk before whom tlie suggestion is made to issue a notice to the party succeeding to the rights of party deceased who will be necessary to the pro.secution of the action to final judgment to appear and become party plaintiff, and in the event the party made plaintiff shall file an amended com- jjlaint, then the defendant shall have twenty days after notice of the amended complaint being filed in which to file an answer thereto, and the issue thus made up .shall stand for trial at the succeeding term. 1887, c. 389, s. 3. Note. For substitution of administrator d. 1>. n., sec s. 154. Note. State is plaintiff in actions on oflicial bonds and securities, see ss. 280, 281. VII. Venue. .419. Place of subject of action. Actions for the following causes must be tried in the county in which the subject of the action, or some part thereof, is situated, subject to the power of the court to change the place of trial, in the cases provided by law: 1. For the recovery of real property, or of an estate or interest therein, or for the determination in any form of such right or inter- est, and for injuries to real property. 419 CIVIL PEOCEDUEE— T7/. Venue. Ch. 12 2. For the partition of real property. 3. For tlie foreclosure of a mortgage of real property. 4. For the recovery of personal property. Code, s. 190; 1889. e. 219; C. C. P., s. 66. Note. For venue in partition proceedings, see s. 2486. 420. Where cause of action arose. Actions for the following causes must be tried in the county where the cause, or some part thereof, arose, subject to the like power of the court to change the place of trial, in the cases provided by law : 1. For the recovery of a penalty or forfeiture, imposed by statute ; except that, when it is imposed for an offense committed on a sound, bay, river, or other body of water, situated in two or more counties, the action may be brought in any county bordering on such soimd, bay, river, or other body of water, and opposite to the place where the offense was committed. 2. Against a public officer or person especially appointed to exe- cute his duties, for an act done by him by virtue of his office; or against a person who by his command or in his aid, shall do anything touching the duties of such officer. Code, s. 191; C. C. P., s. 67. 421. Official bonds, executors and administrators. All actions upon official bonds or against executors and administrators in their official capacity shall be instituted in the county where the bonds shall have been given, if the principal or any of the sureties on the bond is in the county ; if not, then in the plaintiff's county. Code, s. 193; 1868-9, e. 258. 422. Domestic corporations. For the purpose of suing and Ix'iiig suimI thf jirincipal place of business of a domestic corporation shall be its residence. 1903, c. 806. 423. Foreign corporations. An action against a corporation created by or under the laws of any other state, government, or country, may be brought in the superior court of any county in which the cause of action arose, or in which it usually did business, or in which it has property, or in which the plaintiffs, or either of them, shall reside, in the following cases : 1. By a resident of this state, for any cause of action. 2. By a plaintiff, not a resident of this state, when the cause of action shall have arisen, or the subject of the action shall be situated within this state. Code, s. 194: C. C. P., s. 361 ; 1S76-7, c. 170. 424 CIVIL PEOCEDURE— F/7. Venue. Ch. 12 424. Where plaintiff or defendant resides; where neither is resident, in all other cases the action shall be tried in the county in which the plaintiffs or the defendants, or any of them, shall reside at the commencement of the action ; or if none of the defendants shall reside in the state, then in the county in which the plaintiffs, or any of them, shall reside ; and if none of the parties shall reside within the state, then the same may be tried in any couiity which the plaintiff shall designate in his summons and complaint, siibject, however, to the power of the court to change the place of trial, in the cases provided bj' statute : Provided, that in all actions against railroads the action shall be tried either in the county where the cause of action arose or in the county where the plaintiff resided at the time the cause of action arose, or in some county adjoining the county in which the cause of action arose, subject, however, to the power of the court to change the place of trial in the cases provided by statute. Code, s. 192; C. C. P., s. 68; 1868-9, ce. 59, 277; 1905. c. 367. 425. Change of. If the county designated for that piu'pose in the summons and complaint be not the ]jroper county, the action may, notwithstanding, be tried therein, unless the defendant, before the time of answering expires, demand in writing that the trial be had in the proper county, and the place of trial be thereupon changed by consent of parties, or by order of the court. The court may change the place of trial in the following cases: 1. When the county designated for that jDurpose is not the proper county. 2. When the convenience of witnesses and the ends of justice would be promoted by the change. 3. When the judge shall have been, at any time, interested as party or counsel. Code, s. 195; C. C. P., s. 69; R. C c. 31, sr. 115. 118; 1870 1. e. 20. 426. Removal for fair trial. In all civil and criminal actions in the superior and criminal courts, in which it shall be suggested on oath, or by affirmation, on behalf of the state, or the traverser of the bill of indictment, or of the plaintiff or defendant, that there are probable grounds to believe that a fair and impartial trial can not be obtained in the county in which the action shall be pending, the judge shall be authorized to order a copy of tlic record of said action to be removed to some adjacent coimty for trial, if he sliall be of the opinion that a fair trial can not be had in said county, after hearing all the testimony which may be offered on either side by affidavits. Code, s. 196; 1879, c. 45; 1899, cc. 104, .508; 1806, c. 693. s. 12. 427 CIVIL PROCEDUEE— IT/. Venue. Ch. 12 427. Affidavits and counter affidavits; shall remove, when. Xo action, •\vlietliei' civil or criniiiia], sliall be so removed, unless the affidavit shall set forth particularly and in detail the ground of the application. And it shall be competent for the other side to contro- vert the allegations of fact in said application, and to offer counter affidavits to that end. And the judge shall order the removal of any such action, if he shall be satisfied after thorough examination of the evidence as aforesaid that the ends of justice demand it. Code, s. 197; 1879, c. 45; 1899, c. 104, s. 2. 428. Transcript on removal; subsequent proceedings. When a cause shall be directed to be removed, the clerk shall transmit to the court to which the same is removed a transcript of the record of the case, with the prosecution bond, bail bond, and the depositions, and all other written evidences filed therein ; and all other proceed- ings shall be had in the county to which the place of trial is changed, imless otherwise provided by the consent of the parties in writing duly filed, or by order of court. Code, ss. 195, 198; R. C, c. 31, s. 118; 1806, c. 694, s. 12; 1810, c. 787; C. C. P., s. 69. VIII. Summons. 429. Civil actions commenced by. Civil actions shall be com- menced by issuing a summons ; but no summons need issue in contro- versies submitted without action, and in confessions of judgment without action. Code, s. 199; C. 0. P., s. 70. Note. See ss. 580, 80.3, and Hervey v. Edmunds. 68 N. C. 243. 430. What to contain; w/here returnable. The summons shall run in the name of the state, be signed by the clerk of the superior court having jurisdiction to try the action, and shall be directed to the sheriff or other proper officer of the county in which any defend- ant resides or may be found. It shall be returnable to the regular term of the superior court of the county from which it issued ; and shall command the sheriff, or other proper officer, to summon the defendant to appear at the next ensuing term of the siiperior court and answer the complaint of the plaintiff; and shall contain a notice stating in substance that if the defendant shall fail to answer the complaint within the time specified, the plaintiff will apply to the court for the relief demanded in the complaint; and shall be dated on the day of its issue. Code, ss. 200, 213; C. C. P., 74; 1876-7, cc. 85. 241. Note. See s. 106. 431 CIVIL PROCEDURE— T7//. Summons. Ch. 12 431. When attested by seal. Every summons addressed to the sheriii" or other officer of any county, other than that from which it issued, shall be attested by the seal of the court; but when it shall be addressed to the sheriff or other officer of the county in which it issued, it shall not be attested by the seal of the court. Code, s. 203; 1876-7, c. 85, s. 4. 432. Issued to several counties. The plaintiff may issue a sum- mons, directed to the sheriff' of any county where a defendant is most likely to be found, noting on each summons that it is issued in the same action ; and when the said svmimons is returned, it shall be docketed as if only one had issued ; and if any defendant shall not be served with such process, the same proceeding shall be had as in other cases of similar process not executed. Code, s. 204; R. C, c. 31, s. 44; 1789, c. 314, ss. 1, 2; 1831, c. 14, s. 2. 433. When officer shall execute and return. The officer to whom the summons is addressed shall note on it the day of its delivery to him, and shall execute it at least ten days before the beginning of the term to which it shall be returnable, and shall return it by the first day of the term. Code, s. 200; 1876-7, c. 85. 434. When issued within ten days of term. If any summons .shall be issued within less than ten days of the beginning of the next term of the superior court for the county in which it is issued, it shall be made returnable to the second term of said court next after the date of its issuing, and shall be executed and returned by the proper officer accordingly. Code, s. 201 ; 1876-7, c. 85, s. 2. 435. Issued more than, served within, ten days of term. When the summons shall be issued more than ten days before the next succeeding term- of the superior court of the county to which it is returnable, and shall be executed by the proper officer within less than ten days of said term, it shall he returned as if executed in proper time, and the case placed on the sinnmons docket and con- tinued to the next succeeding term, at which term it shall be treated in all respects as if said next succeeding term had been the return term thereof. But the parties to the action may, by agreement, make up the pleadings at the term to which the summons is return- able. Nothing herein contained shall be construed to release or discharge the sheriff or other officer from any liability he may incur by failing to execute the summons in due time. Code, s. 202; 1876-7, e. 85, s. 3. 436 CIVIL PKOCEDUEE— y///. Summons. Ch. 12 436. When summons returned to second term. Whenever it shall be neces^arv to serve suiniiions, warrant of attachment, or other process by publication, and it shall appear that in order to make publication for the number of weeks required by law sufficient time will not elapse between the order of publication and the term of court next succeeding the order, then, in all such cases, it shall not be necessary to make the summons, warrant of attachment, or other process returnable to the term of court next succeeding, but it shall be lawful for the judge or clerk to direct that the summons, warrant of attachment, or other process shall be returnable to such other terra of court, thereafter to be held, as will allow the simimons, warrant of attachment, or other process to be published for the number of weeks required by law so that the publication may be completed before the term of court to which such summons, warrant of attach- ment, or other process shall be returnable. 1903, c. 169. 437. Alias and pluries. When the defendant in a civil action or special proceeding is not served with summons within the time within which the summons is returnable, the plaintiff may sue out an alias or pluries summons, returnable in the same manner as original pro- cess. Code, s. 205; R. C, c. 31, s. 52; 1777, c. 115, ss. 23, 71. 438. Discontinuance. A failure to keep up the chain of sum- monses issued against a party, but not served, by means of an alias or i>luries summons, is a discontinviance as to such party; and if a summons is served after a break in the chain, it is a new action as to such party, begnin when such summons was issued. See Koonce v. Pelletier, 115 N. C. R., 233. 439. Served by reading. The summons shall be served in all cases, except as hereinafter provided, by the sheriff or other officer reading the same to the party or parties named as defendant, and such reading shall be a legal and sufficient service. Code, s. 214; 1876-7. e. 241. Note. For statute forbidding service on Sunday, see s. 2837. 440. Served by copy; corporations; infants; persons non compos. The summons shall be served by delivering a eojiv thereof in the following cases : 1. If the action be against a corporation, to the president or other head of the corporation, secretary, cashier, treasurer, director, man- aging or local agent thereof: Provided, that any person receiving or collecting moneys within this state for, or on behalf of, any cor- poration of this or any other state or government, shall be deemed 117 440 CIVIL PEOCEDURE— FZ/7. Summons. Ch. 12 a local agent for the purpose of this section ; but such service can be made in respect to a foreign corporation only when it has property within this state, or the cause of action arose therein, or when the plaintiff resides in the state, or when such service can be made within the state, personally upon the president, treasurer or secretary thereof. Note. For service on foreign corporations by service on local process agent, see Corporations, s. 1243, and Insurance. Foi' service on corporation for forfeiture of charter, see Corporations, s. 1199. 2. If against a minor under the age of fourteen years, to such minor personally, and also to his father, mother or guardian, or if there be none within the state, then to any person having the care and control of such minor, or with whom he shall reside, or in whose service he shall be employed. 3. If against a person judicially declared to be of unsound mind, or incapable of conducting his own affairs in consequence of habitual drunkenness, and for whom a committee or guardian has been appointed, to such committee and to the defendant personally: Pro- vided, that if the superintendent of an insane asylum, or the acting superintendent of such asylum, shall inform the sheriff or other officer who is charged with the duty of serving a summons or other judicial process, or notice, on any insane person confined in such asylum, that the summons, or process, or notice, can not be served without danger of injury to such insane person, it shall be suffi- cient for such officer to return said summons, process, or notice, without actual service on the insane person, but with an endorsement that it was not personally served because of such information ; and when an insane person shall be confined in a common jail it shall be sufficient for an officer charged with service of a notice, summons, or other judicial process, to return the same with the endorsement that it was not served because of similar information as to the danger of service on such insane person given by the physician of the county in which said jail is situated. Code, s. 217; 1889, c. 89; C. C. P., s. 82; 1874-5, c. ICS. ' 441 . Irregular service on infants, etc., validated, in any and all civil actions and special proceedings pending on the fourteenth day of March, one thousand eight hundred and seventy-nine, or thereto- fore determined, in any of the courts, wherein any or all of the defendants were infants, idiots, lunatics or persons non compos mentis, on whom there was no personal service of the summons, the proceedings, actions, decrees and judgments taken, had and made by such courts in such civil actions and special proceedings shall be valid, effectual and binding against and upon such infants, idiots. 441 CIVIL PEOCEDURE— y///. Summons. Ch. 12 lunatics and persons non compos mentis, and their rights and estates in like manner, as if they had been personally served with a sum- mons therein: Provided, that this section shall not have the effect, nor be construed, to prevent any of the proceedings, actions, jiidg- ments or decrees hereby rendered regular and confirmed, from being impeached and set aside for fraud. Code, s. 387; 1879, c. 257; 1880, c. 23. 442. Served by publication. Where the person on whom the serv- ice of the summons is to be made can not, after due diligence, be found within the state, and that fact appears by aiEdavit to the satis- faction of the court, or to a judge thereof, and it in like manner appears that a caiise of action exists against the defendant in respect to whom service is to be made, or that he is a proper party to an action relating to real property in this state, such coxirt or judge may grant an order that the service be made by publication of a notice in either of the following cases: 1. Where the defendant is a foreign corporation, and has property within the state, or the cause of action arose therein. 2. Where the defendant, being a resident of this state, has departed therefrom, with intent to defraud his creditors, or to avoid the service of a summons, or keeps himself concealed therein. 3. A\Tiere he is not a resident of this state, but has property therein, and the court has jurisdiction of the subject of the action. 4. Where the subject of the action is real or personal property in this state, and the defendant has, or claims a lien or interest, actual or contingent, therein, or the relief demanded consists wholly or partly in excluding the defendant from any lien or interest therein. 5. \^^iere the action is for divorce, and in all cases where publica- tion is made, the complaint must be filed before the expiration of the time of publication ordered. 6. Where the stockholders of any corporation are deemed to be necessary parties to an action and their names or residences are un- known ; or where the names or residences of parties interested in real estate the subject of an action are unknown, if the name of at least one of the parties to the action and interested in the subject matter thereof shall be known, and he be a resident of the state, the court having jurisdiction may, upon affidavit that after due diligence the names or residences of such parties can not be ascertained, authorize service by publication. 7. Where in actions for the foreclosure of mortgages on real estate, if any party having any interest in, or lien upon, such mortgaged premises, is unknown to the plaintiff, and the residence of such party can not, with reasonable diligence, be ascertained by him, and such fact shall be made to appear by affidavit. 442 CIVIL PROCEDUEE— TY/Z. Summons. Ch. 12 8. Where no officer or agent of a domestic corporation upon whom service can be made can, after due diligence, be found within the state, and such facts be made to appear by affidavit. This subsec- tion shall also apply to all summonses, orders to show cause, orders and notices issued by any board of aldermen, board of town or county commissioners or by individuals. Code, ss. 218, 221; 18S5, c. 380; 1889, cc. 108, 263; 1895, c. 334. 443. Manner of publication. The order must direct the publica- tion in any one or two newspapers to be designated as most likely to give notice to the person to be served, and for such length of time as may be deemed reasonable, not less than once a week for four weeks, of a notice, giving the title of the action, the purpose of the same, and requiring the defendant to appear and answer, or demur to the complaint at a time and j)lace therein mentioned ; and no publi- cation of the summons, nor mailing of the summons and complaint, shall be deemed necessary. The cost of publishing in a newspaper shall not exceed one dollar and fifty cents an inch of solid type, and shall in no case exceed six dollars for the notice. Code, s. 219; 1903, c. 134; C. C. P., c. 84; 1876-7, c. 241, s. 3. 444. When service complete. In the cases in which service by publication is allowed, the summons shall be deemed served at the expiration of the time prescribed by the order of publication, and the party shall then be in court. Code, s. 227; C. C. P., s. 88. 445. Jurisdiction acquired from service. From the time of serv- ice of the summons in a civil action, or the allowance of a provi- sional remedy, the court is deemed to have acquired jurisdiction, and to have control of all subsequent proceedings. Code, s. 229; C. C. P., s. 90. 446. Proof of service. Proof of the service of the sununons or notice must be — 1. By the certificate of the sheriff or other proper officer. 2. In case of publication, the affidavit of the printer, or of his foreman or principal clerk, showing the same. 3. The written admission of the defendant. Code, 8. 228; C. C. P., s. 89. 447. Voluntary appearance by defendant. A voluntary appear- ance of a defendant is (■(i\ii\alent to personal service of the summons upon him. Code, s. 229; C. C. P., s. 90. 120 448 CIVIL PEOCEDURE— TV//. Summom. Ch. 12 448. Personal service on nonresident. When the place of resi- dence is known and the same is made to appear by affidavit, in lieu of publication in a newspaper it will be sufficient to mail a copy of the summons, notice or other process, accompanied by a statement as to the nature of the action or proceeding, to the sheriff or other process officer of the county and state where the defendant resides, who shall serve same according to its tenor. The process offi- cer who serves the papers shall, in making his return, use a form of certificate substantially as follows: State of County of I, , clerk of the court of count}-, in the state of , which court is a court of record having a seal, which •is hereto attached, do certify that , to me well known as the sheriff of said county of , who being by me duly sworn, says that as such sheriff he has full power to serve any and all legal pro- cesses issuing from the courts of said state, and that on the . . . .day of . . . ., 190. ., he served the summons hereto attached by reading and delivering a copy of same to , the defendant therein named. , sheriff, county. State of Sworn to and subscribed before me, this day of 190.. , clerk court. County of [l. s.] State of 1891, c. 120. 449. Defense after judgment on substituted service. The de- fendant against wlioni publication is ordered, or wlio is served under the provisions of the preceding section, or his representatives, on application and sufficient cause sho-\\Ti at any time before judgment, must be allowed to defend the action; and, except in an action for divorce, the defendant against whom publication is ordered, or his representatives, may in like manner, upon good cause shown, be allowed to defend after judgment, or at any time within one year after notice thereof, and within five years after its rendition, on such terms as may be just; and if the defense be successful and the judg- ment or any part thereof shall have been collected or otherwise enforced, such restitution may thereupon be compelled as the court may direct; but title to property sold under such judgment to a pur- chaser in good faith shall not be thereby affected. Code, s. 220; C. C. P., s. 8.1. Note. Summoned after judgment, see s. 456. 450 CIVIL PEOCEDUEE— 7X. Prosecution Bonds. Ch. 12 IX. Peosecution Bonds. 450. Plaintiff's, for costs. Before issuing the summons the clerk shall require of the plaintiff either to give an under- taking with sufficient surety in the sum of two hundred dollars, with the condition that the same shall be void if the plaintiff shall pay the defendant all such costs as the defendant shall recover of him in the action; or to deposit a like sum with him as a security to the defendant for such costs, and in case of such deposit, he shall give to the plaintiff and to the defendant a certificate to that effect; or to file with him a written authority from some judge or clerk of a superior court, authorizing the plaintiff to sue as a pauper. Code, s. 209; R. C, c. 31, s. 40; C. C. P., s. 71. Note. For bond in surety company, see chapter Bonds, s. 272, et seq. For mortgage in lieu of bond, see cliapter Bonds, ss. 265-270. 451. Suit as a pauper. Any judge or clerk of the superior court may authorize any person to sue as a pauper in their respective courts when he shall prove, by one or more witnesses, that he has a good cause of action, and shall make aflidavit that he is unable to comply with the last section. Code, s. 210; C. C. P., s. 72; 1868-9, c. 96. Note. For effect on costs, see chapter Costs, s. 1265. 452. Court may assign counsel. The com-t to which such sum- mons is made returnable may, at its discretion, assign to the person suing as a pauper learned counsel, who shall prosecute his action. Code, s. 211; 1868-9, c. 96, s. 2. 453. Defendant's, for costs and damages in actions for land. In all actions for the recovery of real property or for the possession thereof, the defendant, before he is permitted to plead, answer or demiir, shall execute and file in the office of the clerk of the superior court of the county wherein the suit is pending an undertaking with good and sufficient surety, in an amount to be fixed by the court, not less than two hundred dollars, to be void upon condition that the defendant pay to the plaintiff all such costs and damages as the plaintiff may recover in the action, including damages for the loss of rents and profits. Code, s. 2.37; 1869-70, c. 193. 454. Defense without bond, when. The undertaking prescribed in the preceding section shall not be required if an attorney prac- ticing in the court wherein the action is jiending will certify to the court in writing that he has examined the case of the defendant and is of the opinion that the plaintiff is not entitled to recover; and 45-i CIVIL PEOCEDUEE— 7X. Prosecution Bonds. Ch. 12 if the defendant will also file an affidavit stating that he is not worth the amount of said undertaking in any property whatsoever, and is unable to give the same. Code, s. 237; 1869-70, c. 193. X. Joint and Several Debtors. 455. When some only of defendants are served; partners. Where the action is against two or more defendants, and the sum- mons is served on one or more of them, but not on all of thera, the plaintiil may proceed as follows: 1. If the action be against defendants jointly indebted upon con- tract, he may proceed against the defendants served, imless the court otherwise directs, and if he recover judgTuent it may be entered against all the defendants thus jointly indebted, so far only as that it may lie enforced against the joint property of all and the sepa- rate property of the defendants served, and if they are^ subject to arrest, against the persons of the defendants served; or, 2. If the action be against defendants severally liable, he may proceed against the defendants served, in the same manner as if they were the only defendants. 3. If all the defendants have been served, judgment may be taken against any or either of them severally, when the plaintifF would be entitled to judgment against such defendant or defendants if the action had been against them or any of them alone. 4. If the name of one or more partners shall, for any cause, have been omitted in any action in which judgment shall have passed against the defendants named in the summons, and such omission shall not have been joleaded in such action, the plaintiff, in case the judgment therein shall remain unsatisfied, may by action recover of such partner separately, upon proving his joint liability, notwith- standing he may not have been named in the original action ; but the plaintiff shall have satisfaction of only one judgment rendered for the same cause of action. Code, s. 222; C. C. P.. s. 87. Note. See ante ss. 411-414. 456. Summoned after judgment, when. When a jndiiment shall be recovered against one or more of several persons jointly indebted upon a contract by proceeding, as provided in the preceding section, those who were not originally summoned to answer the complaint may be summoned to show cause why they should not be bound by the judgment, in the same manner as if they had been originally summoned. Code, s. 223; C. C. P., ss. 87, 318. 457 CIVIL PROCEDURE— Z. Joint and Several Debtors. Ch. 12 457. Defense by party summoned after judgment. Any party so summoned may answer within the time specified denying the judgment, or setting up any defense thereto which may have arisen subsequently to such judgment; and may make any defense which he might have made to the action if the summons had been served on him at the time when the same was originally commenced and such defense had been then interposed to such action. Code, s. 224; C. C. P., s. 322. Note. See s. 449. 458. Pleadings and proceedings same as in action. The party issuing the sunamons may demur or reply to tlie answer, and the party summoned may demur to the reply; and the issues may be tried and judgment may be given in the same manner as in an action and enforced by execution if necessary. Code, s. 225; C. C. P., s. 323. 459. Pleadings verified as In actions. The answer and re])ly shall be verified in the like cases and manner and be subject to the same rules as the answer and reply in an action. Code, s, 22C; C. C. P., s. 324. XI. Lis Pendens. 460. Notice of, filed in county where land lies. In an action affecting the title to real property, the plaintiff, at the time of filing the complaint or at any time afterwards or whenever a warrant of attachment shall be issued, or at any time afterwards, the plaintiff or a defendant when he sets up an affirmative cause of action in his answer and demands substantive relief at the time of filing his answer or at any time afterwards, if the same be intended to affect real estate, may file with the clerk of each county in which the property is situated a notice of the pendency of the action, contain- ing the names of the parties, the object of the action, and the descrip- tion of the property in that county affected thereby ; and if the action be for the foreclosure of a mortgage, such notice must be filed twenty days before judgment and must contain the date of the mortgage, the parties thereto, and the time and ]ilace of registering the same. Code, s. 220: C. C. P., s. 90. 461. Notice ineffectual unless action is prosecuted. The notice of lis pendens shall be of no avail unless it sliall ho followed by the first publication of notice of the summons or by an order therefor, or by the personal service on the defendant within sixty days after such filing. Code, 3. 220; C. C. P.. s. 00. 402 CIVIL PROCEDURE— AT. Lis Pendens. Ch. 12 462. Effect of, on subsequent purchasers. From the tiling of tlie notice of lis pendens only shall the pendency of the action be constructive notice to a purchaser or incumbrancer of the property aifected thereby ; and every person whose conveyance or incumbrance is subsequently executed or subsequently registered, shall be deemed .a subsequent purchaser or incumbrancer, and shall be bound by all proceedings taken after the filing of such notice to the same extent as if he were made a party to the action. For the purposes of this section an action shall be deemed to be pending from the time of filing such notice. Code, s. 229; C. C. P., s. 90. 463. Notice cancelled, when and how. The court in which the said action was commenced may, in its discretion, at any time after the action shall be settled, discontinued or abated, on application of any person aggrieved, and on good cause shown, and on such notice as shall be directed or approved by the court, order the notice author- ized by this subchapter to be cancelled of record, by the clerk of any county in whose oifice the same may have been filed or recorded ; and such cancellation shall be made by an endorsement to that effect on the margin of the record, which shall refer to the order. Code, s. 229; C. C. P., s. 90. 464. Lis pendens in Buncombe. Any party to an action desiring to claim the benefit of a notice of lis pendens in Buncombe county, whether given formally under this section or in the pleadings filed in the case, shall cause such notice to be cross-indexed by the clerk of the superior court in a docket to be kept by him, to be called "Record of Lis Pendens," which index shall contain the names of the parties to the action, where such notice, whether formal or in the pleadings is filed, the object of the action, the date of indexing and a sufficient description of the land to be affected to enable any person to locate said lands. From the time of cross-indexing only shall the pendency of the action be actual or constructive notice to subsequent purchasers or incumbrancers. The word '"filing" in the jjreceding sections of this subchapter when referring to actions or proceedings in Buncombe county shall read "cross-indexing." The clerk shall be entitled to a fee of twenty-five cents for indexing said notice, to be paid as are other costs in the pending action. 1903, e. 472. XII. COJIPLAINT. 465. The first pleading. The first pleading on the part of the plaintiff is the complaint. Code, s. 232; C. C. P., s. 92. 466 CIVIL PROCEDURE— A'/7. Complainl. Ch. 1l' 466. Time of filing. The plaiutiff shall file his complaint in the clerk's oflice on or before the third day of the term to which the action is brought, otherwise the suit mav, on motion, be dismissed at the cost of the plaintiff. Code, ss. 20G, 238; 1868-9, c. 76, s. 3; 1870-1, c. 42, s. 3. 467. Contents. The complaint shall contain— 1. The title of the cause, specifying the name of the court in which the action is brought, the name of the county in which the trial is required to be had, and the names of the parties to the action, plain- tiff and defendant. 2. A plain and concise statement of the facts constituting a cause of action, without iranecessary repetition ; and each material allega- tion shall be distinctly numbered. 3. A demand of the relief to which the plaintiff' supposes himself entitled. If the recovery of money be demanded, the amount thereof must be stated. Code, s. 233; C. C. P., s. 93. 468. In action to recover purchase money of land. In actions for the recovery of a debt contracted for the purchase of land, it shall be the duty of the plaintiff' to set forth in his complaint that the consideration of the debt sued on was the purchase money of certain land, describing said land in an intelligible manner, such as the num- ber of acres, how bounded, and where situated. Code, s. 234; 1879, c. 217. 469. What causes of action may be joined. The plaintiff may unite in the same complaint several causes of action, whether they be such as have been heretofore denominated legal or equitable, or both, where they all arise out of — 1. The same transaction; or transaction connected with the same subject of action. 2. Contract, express or implied ; or, 3. Injuries with or without force to person and property, or to either; or, 4. Injuries to character ; or, 5. Claims to recover real property, with or without danxages for the withholding thereof; and the rents and ])rofits of the same; or, 0. Claims to recover personal property, with or without damages for the withholding thereof; or, 7. Claims against a trustee, by virtue of a ooiitnict, or liy opera- tion of law. I5ut the causes of action so united must all belong to one of these classes, and except in actions for the foreclosure of mortgages, must 469 CIVIL PROCEDUKE— X//. Complaint. Cb. 12 affect all the parties to the action, and not require different places of trial, and must be separately stated. In actions to foreclose mort- gages, the court shall have power to adjudge and direct the payment by the mortgagor of any residue of the mortgage debt that may remain unsatisfied after a sale of the mortgaged premises, in cases in which the mortgagor shall be personally liable for the debt secured by such mortgage ; and if the mortgage debt be secured by the cove- nant or obligation of any person other than the mortgagor, the plain- tiff may make such person a party to the action, and the court may adjudge payment of the residue of such debt remaining unsatisfied after a sale of the mortgaged premises, against such other person, and may enforce such judgment as in other cases. Code, s. 267; C. C. P., s. 126. Note. Must show partj- in interest, see ss. 282. 400. XIII. Defendant's Pleadings. 470. Demurrer or answer. The only pleading on the part of the defendant is either a demurrer or an answer. Code, s. 238; C. C. P., s. 94. 471. Demurrer and answer. The defendant may demur lo one or more of several causes of action stated in the complaint, and answer to the residue. Code, s. 246; C. C. P., s. 103. 472. Sham and irrelevant defenses. Sham and irrelevant answers and defenses may be stricken out on motion, and upon such terms as the court may in its discretion impose. Code, s. 247; C. C. P., s. 104. Note. See s. 560. 473. Time for. The defendant shall appear and demur or answer at the same term to which the summons shall be returnable, other- wise the plaintiff may have judgment by default. Code, s. 207; 1870-1, c. 42, s. 4. XIV. Demurkee. 474. Grounds for. The defendant may demur to the complaint when it shall appear upon the face thereof, either — 1. That the court has no jurisdiction of the person of the de- fendant, or of the subject of the action ; or, 2. That the plaintiff has not legal capacity to sue; or, 3. That there is another action pending between the same parties for tlie same cause ; or, 127 474 CIVIL PEOCEDURE— ATT'. Demurrer. Ch. 12 4. That there is a defect of parties plaintiff or defendant ; or, 5. That several causes of action have been improperly nnited ; or, 6. That the complaint does not state facts sufficient to constitute a cause of action. Code, s. 239; C. C. P., s. 95. 475. Must specify grounds of objection. The demurrer shall dis- tinctly specify the grounds of objection to the complaint. Unless it does so, it may be disregarded. It may be taken to the whole com- plaint, or to any of the alleged causes of action stated therein. Code, s. 240; C. C. P., s. 96. 476. Sustained for misjoinder, action divided. If the demurrer be allowed for tlie reason that several causes of action have been im- properly united, the judge shall, upon such terms as may be just, order the action to be divided into as many actions as may be neces- sary to the proper determination of the causes of action therein men- tioned. Code, s. 272; C. C. P., s. 131. 477. Objection not appearing in complaint. When any of the matters enumerated as grounds of demurrer do not appear on the face of the complaint, the objection may be taken by answer. Code, s. 241; C. C. P., s. 98. 478. Objection waived. If no such objection be taken either by demurrer or answer, the defendant shall be deemed to have waived the same, excepting only the objection to the jurisdiction of the court, and the objection that the complaint does not state facts suffi- cient to constitute a cause of action. Code, s. 242; C. C. P., s. 99. XV. Answer. 479. Contains what. The answer of the defendant must contain — 1. A general or specific denial of each material allegation of the complaint controverted by the defendant, or of any knowledge or information thereof, sufficient to form a belief. 2. A statement of any new matter constituting a defense or counterclaim, in ordinary and concise language, without rei)etition. Code, s. 24.-?; C. C. P., s. 100. 480. Debt for purchase money of land denied. If the defend ant shall deny in his answer that the obligation sued on was for tlic purchase money of the land described in the complaint, it shall br the duty of the court to sulmiil tli(> issue so joined to tlie jury. Code, 8. 235; 1879, c. 217. ,481 CIVIL PEOCEDURE— ZF. Answer. Ch. 12 481. Counterclaim. The counterclaim mentioned in section four himdred and seventy-nine must be one existing in favor of a defend- ant and against a plaintiff between whom a several judgment might be had in the action, and arising out of one of the following causes of action: 1. A caiise of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action. 2. In an action arising on contract, any other cause of action aris- ing also on contract, and existing at the commencement of the action. Code, s. 244; C. C. P., s. 101. 482. Several defenses. The defendant may set forth by answer as many defenses and counterclaims as he may have, whether they be such as have been theretofore denominated legal, equitable, or both. They must each be separately stated and numbered, and refer to the cause of action which they are intended to answer in such manner that they may be intelligibly distinguished. Code, s. 245; C. C. P., s. 102. Note. Statute of limitations pleaded by answer only, see s. 360. 483. Contributory negligence pleaded and proved. In all actions to recover damages by reason of the negligence of the defendant, where contributory negligence is relied upon as a defense, it shall be set up in the answer and proved on the trial. 1887, 0. 33. XVI. Reply. 484. When filed; cause at issue. The plaintiff shall join issue on the denuirrer or reply to the answer at the same term to which such demurrer or answer may be filed ; and the issues, whether of law or of fact, shall stand for trial at the next term succeeding the terra at which the pleadings are completed : Provided, that where an action is instituted upon a bill, note, bill of exchange, liquidated and settled account, or for divorce, and summons in such action shall be served on the defendant at least thirty days before the term of cottrt to which such summons shall be returnable, and a copy of the complaint filed in the clerk's office at least thirty days before such term of court, if civil cases can be tried at such, then and in such case such action shall stand for trial at such first term of court. Code, s. 208; 1870-1, c. 42, s. 5; 1001, c. G'2(i. 485. What to contain; demurrer to answer. When the answer contains new matter constituting a cdunterclaini, the plaintiff may reply to such new matter, denying generally or specificall}' each allegation controverted by him or any knowledge or information thereof sufficient to form a belief; and he may allege, in ordinary Rev. Vol. I— 5 129 485 CIVIL PEOCEDURE— ZF/. Eeply. Ch. 12 and concise language, without repetition, any new matter not in- consistent with the complaint, constituting a defense to such new matter in the answer ; and the plaintiff may in all cases demur to an ansM'er containing new matter, where, upon its face, it does not con- stitute a counterclaim or defense ; and the plaintiff may demur to one or more of such defenses or counterclaims, and reply to the residue of the counterclaim. And in other eases, when an answer contains new matter constituting a defense by way of avoidance, the court may in its discretion, on the defendant's motion, require a reply to such new matter; and in that case, the reply shall be sub- ject to the same rules as a reply to a counterclaim. Code, s. 248; C. C. P., s. 105. 486. Demurrer to reply. If a reply of the plaintiff to any defense set up by the answer of the defendant be insufficient, the defendant may demur thereto, and shall state the grounds thereof. Code, s. 250; C. C. P., s. 107. XVII. Pleading, General Provisions. 487. Forms of. The forms of pleading in civil actions in courts of record, and the rules by which the sufficiency of the pleadings is to be determined, are those prescribed by this chapter. Code, s. 231; C. C. P., s. 91. 488. Subscribed; verified, when. Every pleading in a court of record must be subscribed by the party or his attorney; and when any pleading is verified, every subsequent pleading, except a demur- rer, must be verified also. Code, s. 257; C. C. P., s. 116. 489. Verification. The verification must be in substance that the same is true to the knowledge of the person making it, except as to those matters stated on information and belief, and as to those matters he believes it to be true; and must; be by affidavit of tiie party, or if there be several parties united in interest, and pleading- together, by one at least of such parties acquainted with the fads, if such party be within the county where the attorney resides, and capable of making the affidavit. Code, s. 258; C. C. P., s. 117; 1SG8-9, c. 150, s. 7. 490. Verification by agent or attorney. Tlie affidavit may also be made by the agent or attorney, if the action or defense be foundc(! upon a written instrument for the payment of money only, and sudi instrument be in the possession of the agent or attorney, or if all the material allegations of the pleading be within the personal knowl- 4y0 CIVIL PKOCEDURE— ZF7/. Pleading, Gen. Prov. Ch. 12 edge of the agent or attorney. When the pleading is verified by any other person than the party, he shall set forth in the affidavit his knowledge, or the grounds of his belief on the subject, and the rea- sons why it is not made by the party. Code, s. 26S; C. C. P., s. 117; 1868-9, c. 159, s. 7. 491. Verification by corporation; when state is party. When a corporation is a party the verification may be made by any officer, or managing or local agent thereof upon whom summons might be served ; and when the state or any officer thereof in its behalf is a party, the verification may be made by any person acquainted with the facts. Code, s. 2.')8; 1901, e. 610; C. C. P., s. 117; 1868-9, o. 159, s. 7. 492. Verification before what officer. Any officer competent to take the aekuowledgnient of deeds, and any judge or clerk of the superior court, notary public, in or out of the state, or justice of the peace, shall be competent to take affidavits for the verification of pleadings, in any court or county in the state, and for general pur- poses. Code, s. 258; 1891, e. 140; C. C. P., s. 117; 1868-9, c. 159, s. 7. 493. Verification omitted, when; pleadings incompetent in criminal prosecutions. The verification may be omitted when an admission of the truth of the allegation might subject the party to prosecution for felony. And no pleading can be used in a criminal prosecution against the party as proof of a fact admitted or alleged in such pleading. Code, s. 258; C. C. P., s. 117; 1868-9, c. 159, s. 7. 494. Items of account; particulars furnished, when. It shall not be necessary for a party to set forth in a pleading the items of an account therein alleged ; but he shall deliver to the adverse party, within ten days after a demand thereof in writing, a copy of the account, which, if the pleading is verified, must be verified by his own oath, or that of his agent or attorney, if within the personal knowledge of such agent or attorney, to the eifect that he believes it to be true, or be precluded from giving evidence thereof. The court or the judge thereof may order a further account when the one delivered is defective ; and the court may, in all cases, order a bill of particulars of the claim of either party to be furnished. Code, s. 259; C. C. P., s. 118. 495. Pleadings construed. In the construction of a pleading for the purpose of determining its effect its allegations shall be liberally construed with a view to substantial justice between the ]iartics. Code, s. 260; C. C. P., s. 119. 131 496 CIVIL PROCEDUKP:— A'T77. Pleading, Gen. Prov. Ch. 12 496. Irrelevant, redundant; indefinite, uncertain. If irrelevant or redundant matter be inserted in a pleading, it may be stricken o\it, on motion of any person aggrieved thereby, but this motion must be made before answer or demurrer, or before an extension of time to jjlead is gi'antcd. And when the allegations of a pleading are so indefinite or uncertain that the precise nature of the charge or defense is not apparent, the court may require the pleading to be made definite and certain by amendment. Code, s. 261 ; C. C. P., s. 120. 497. Judgments pleaded; burden of proof. In pleading a judg- ment or other determination of a court or of an officer of special jurisdiction, it shall not be necessary to state the facts conferring jurisdiction, but such judgment or determination may be stated to have been duly given or made. If such allegation be controverted, the party pleading shall be bound to establish, on the trial, the facts conferring jurisdiction. Code, s. 262; C. C. P., s. 121. 498. Conditions precedent pleaded; burden of proof. In plead- ing the performance of conditions precedent in a contract, it shall not be necessary to state the facts showing such performance ; but it may be stated generally that the party duly performed all the con- ditions on his part; and if such allegation be controverted, the party pleading shall be bound to establish, on the trial, the facts showing such performance. Code, s. 26.3; C. C. P., s. 122. 499. Instrument for payment of money pleaded. In an action or defense founded upon an instrument for the payment of money only, it shall be sufficient for the party pleading to give a copy of the instrument, and to state that there is due to him thereon, from the adverse party, a specified sum which he claims. Code, s. 263: C. C. P.. s. 122. 500. Private statutes pleaded. In pleading a private statute or right derived therefrom it shall be sufficient to refer to such statut<' by its title or the day of its ratification, and the eo\irt shall there upon take judicial notice thereof. Code, s. 264; C. C. P., s. 123. 501. Libel and slander, complaint; onus. In an action for libel or slander it shall imt be necessary to state in the com]>laint any extrinsic facts for the purpose of showing the application to the plaintiff of the defamatory matter out of which the cause of action arose; but it shall be sufficient to state generally that the same was 501 CIVIL PROCEDURE— ZF//. Pleading, Gen. Prov. Ch. 12 published or spoken concerning the plaintiff; and if such allegation be controverted, the plaintiff shall be bound to establish, on trial, that it was so published or spoken. Code, s. 265; C. C. P.,s. 124. Xote. See s. 2012 et seq. 502. Libel and slander, answer. In the actions mentioned in the preceding section, the defendant may in his answer allege both the truth of the matter charged as defamatory, and any mitigating cir- cumstances to reduce the amount of damages ; and whether he prove the justification or not, he may give in evidence the mitigating cir- cumstances. Code, s. 2G6; C. C. P., s. 125. Note. See s. 2012 et seq. 503. Allegations not denied, deemed true. Every material alle- gation of the complaint not controverted by the answer, and every I material allegation of new matter in the answer, constituting a counterclaim, not controverted by the reply shall for the purposes of the action, be taken as true. But the allegation of new matter in the answer, not relating to a counterclaim, or of new matter in reply, is to be deemed controverted by the adverse party as upon a direct denial or avoidance, as the case may require. Code, s. 268; C. C. P., s. 127. 504. Pleading lost, copy used. If an original pleading or paper be lost or withheld by any person, the court may aiithorize a copy thereof to be filed and used instead of the original. Code, s. 600; C. C. P., s. 357. XVIII. Amendments. 505. As of course, when. Any pleading may be once amended of course, without costs, and -without prejudice to the proceedings already had, at any time before the period for answering it expires; or it can be so amended at any time, unless it be made to appear to the court that it was done for the purpose of delay, and the plaintiff or defendant will thereby lose the benefit of a term for which the cause is, or may be, docketed for trial ; and if it appear to the court or judge that such amendment was made for such purpose, the same may be stricken out, and such terms imposed as to the court or judge may seem just. Code, s. 272; C. C. P.. s. 131. 506. Upon demurrer sustained. After the decision of a demur- rer, the judge shall, if it appear that the demurrer was interposed 506 CIVIL PKOCEDURE— XTV//. Av^endwents. Ch. 12 in good faith, allow the party to plead over upon such terms as may be just. Code, s. 272; C. C. P., s. 131; 1871-2, c. 173. 507. To pleading, process or proceeding, wlien. The judge or court may, before and after judg-ment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process or pro- ceeding, by adding or striking out the name of any party; or by correcting a mistake in the name of a party, or a mistake in any other respect; or by inserting other allegations material to the ease; or when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the fact proved. Code, s. 273; C. C. P.. s. 132. 508. Effect of substantial. When the complaint is so amended as to change the nature of the action and the character of the relief demanded, the judgment rendered shall not operate as an estoppel upon any person acquiring an interest in the property in controversy prior to the allowance of such amendment. 1901, c. 486. 509. Unsubstantial defects disregarded. The court or judge thereof shall, in every stage of the action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect. Code, s. 276; R. C, c. 3, ss. 5, 6 ; C. C. P., s. 135. 510. When plaintiff ignorant of defendant's name; true name inserted when known. AVhen the plaintiff shall be ignorant of tlio name of a defendant such defendant may be designated in any plead- ing or proceeding by any name; and when his true name shall be discovered, the pleading or proceeding may be amended accordingly. Code, s. 275; C. C. P.. s. 134. 511. Supplemental pleadings. The plaintiff and defendant re- spectively may be allowed on motion to make a supplemental com- plaint, answer or reply, alleging facts material to the case occurring after the former complaint, answer or reply, or of which the party was igiiorant when his former pleading was made, and either party may set up by a supplemental pleading, the judgment or decree of any court of competent jurisdiction, rendered since the commence- ment of such action, determining the matter in controversy in said action, or any part thereof, and if said judgment be set up by th(> plaintiff, the same shall be without prejudice to any provisional 511 CIVIL PEOCEDURE— Z7///. Amendments. Ch. 12 remedy theretofore issued or other proceedings had in said action on his behalf. Code, s. 277; C. C. P., s. 136. 512. Time for pleading enlarged; proceedings made conform- able to law. The judge may liliewise, in his discretion, and upon siTch terms as may be just, allow an answer or reply to be made, or other act to be done, after the time limited, or by an order to enlarge such time ; and whenever any proceeding taken by a party fails to conform to law in any respect, the judge may, in like man- ner and upon like terms, pennit an amendment of such proceeding, so as to make it conformable thereto. Code, s. 274; C. C. P., s. 133. 513. Mistake, surprise, excusable neglect. The judge shall, upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, order, verdict or other proceeding taken against him through his mistake, inadvert- ence, surprise or excusable neglect, and may supply an omission in any proceeding. Code, s. 274; 1893. e. 81; C. C. P., s. 133. 514. Orders without notice, vacated. An order made out of court, without notice to the adverse party, may be vacated or modi- fied without notice by the judge who made it, or may be vacated or modified on notice, in the manner in which other motions are made. Code, s. 546; C. C. P., s. 297. XIX. Variance Between Pleading and Proof. 515. Material; amendment when. No variance between the alle- gation in a pleading and the pr(X)f shall be deemed material, unless it has actually misled the adverse party to his prejudice in main- taining his action upon the merits. Whenever it shall be alleged that a party has been so misled, that fact shall be proved to the satis- faction of the court, and in what respect he had been misled ; and thereupon the judge may order the pleading to be amended upon such terms as shall be just. Code, s. 269; C. C. P., s. 128. 516. Immaterial. Where the variance is not material as pro- vided in the preceding section, the judge may direct the fact to be found according to the evidence, or may order an immediate amend- ment without costs. Code, s. 270; C. C. P., s. 129. 517 CIVIL PROCEDURE— A7A'. Variance, etc. Ch. 12 517. Failure of proof. Where, however, the allegation of the cause of action or defense to which the proof is directed is unproved, not in some particular or particulars only, but in its entire scope and meaning, it shall not be deemed a case of variance, but a failure of proof. Code, s. 271; C. C. P., s. 130. XX. Refeeence. 518. By consent. All or any of the issues in the action, whether of fact or of law, or both, may be referred, upon the written consent of the parties, except in actions to annul a marriage, or for divorce and separation. Code, s. 420; C. C. P., 9. 244. 519. Compulsory. Where the parties do not consent, the court may, upon the application of either, or of its own motion, direct a reference in the following cases: 1. Where the trial of an issue of fact shall require the examina- tion of a long account on either side ; in which case the referee may be directed to hear and decide the whole issue, or to report upon any specific question of fact involved therein ; or, 2. W^here the taking of an account shall be necessary for the infor- mation of the court, before judgment, or for carrying a judgment or order into effect; or, 3. When the case involves a complicated question of boundary, or one which requires a personal vicAv of the premises ; or, 4. Where a question of fact other than upon the pleadings shall arise, upon motion or otherwise, in any stage of the action ; or, 5". Where the issues of fact and questions of fact arise in an action of which the courts of equity of the state had exclusive jurisdiction prior to the adoption of the constitution of one thousand eight hun- dred and sixty-eight, and in which the matter or amount in dispute is not less than the sum or value of five hundred dollars. The compulsory reference under this section shall not deprive either party of his constitutional right to a trial of the is.sues of fact arising on the pleadings, by a jury, but such trial shall be had only upon the written evidence taken before the referee. Code, s. 421; 1897, c. 237, ss. 1, 2; C. C. P., s. 245. 520. Referees, how chosen; qualifications. In all cases of ref- erence the jiarties as to whom issues arc joined in the action (excejit when the defendant is an infant or an absentee) may .agree in writing upon a person or persons, not exceeding three, and a reference shall be ordered to iiim or them, and to no otlier person or ])ersons. And 520 CIVIL PEOCEDUEE— A'X. lieference. Ch. 12 if such parties do not agree, the court shall appoint one or more referees, not more than three, who shall be free from exception. And no person shall be appointed referee to whom all parties in the action shall object. And no judge or justice of any court shall sit as referee in any action pending in the court of which he is judge or justice, and not already referred, unless the parties otherwise stipulate. Code, s. 423; C. C. P., s. 247. 521. Referees may administer oaths. Every referee shall have power to administer oaths in any proceeding before him, and shall have generally the power vested in a referee by law. Code, s. 599; C. C. P., s. 356. 522. Conduct of trial; amendments; contempt punished. The trial by referees shall be conducted in the same manner as a trial by the court. They shall have the same power to grant adjourn- ments and to allow amendments to any pleadings and to the sum- mons, as the court upon such trial, upon the same terms and with like effect. They shall have the same power to preserve order and punish all violations thereof upon such trial, and to^ compel the attendance of witnesses before them by attachment and to punish them as for contempt for nonattendance or refusal to be sworn or to testify, as is possessed by the court. Code, s. 422; C. C. P., s. 246. 523. Testimony reduced to writing. The testimony of all the witnesses on both sides shall be reduced to writing by the referee, or under his direction, and signed by the witnesses, and the evidence so taken and signed shall be filed in the cause, and constitute a part of the record. 1897, c. 237, s. 3. 524. Report, when and to whom made; review of; judgment on. The referee shall make and deliver a report within such time as may be ordered by the court. The report of the referee shall be made to the clerk of the court in which the action is pending; either party, during the term or upon ten days' notice to the adverse party out of term, may move the judge to review such report, and set aside, modify or confirm the same in whole or in part, and no judgment shall be entered on any reference except by order of the judge. Code, s. 423; C. C. P., s. 247. 525. Report, what to contain; exceptions; effect of special verdict, when. The referee must state the facts found and the con- clusions of law separately; and his decision must be given, and may 525 CIVIL PROCEDUEE— AM', lieference. Ch. 12 be excepted to and reviewed in like manner, and with like effect in all respects as in cases of appeal ; and he may in like manner settle a case or exceptions. The report of the referee upon the whole issne shall stand as the decision of the conrt, and judgment may be entered thereon upon application to the judge. When the reference is to report the facts, the report shall have the effect of a special verdict. Code, s. 422; C. C. P., s. 24G. XXI. Tkial. 526. Defined. A trial is the judicial examination of the issues between the parties, whether they be issues of law or of fact. Code, s. 397; C. C. P., s. 223. 527. How issue tried. An issue of law must be tried by the judge or court, unless it be referred. An issue of fact must be tried by a jury, unless a trial by jviry be waived, or a reference be ordered. Every other issue is triable by the court, or the JTidge thereof, who, however, may order the whole issue, or any specific question of fact involved therein, to be tried by a jury, or may refer it. And when a compulsory reference is ordered either party has the right to have the issues of fact tried by a jury. Code, ss. 398, 399; C. C. P., ss. 224, 225. \ Note. For compulsory reference, see s. 519. 528. Of issues of fact. Every issue of fact joined on the plead- ings, and inquiry of damages required to be tried by a jury, shall be tried at the term of the court next ensuing such joinder of issue or order for inquiry: Provided, such issue shall have been joined or order for inquiry made, more than thirty days before such term, but if not, they shall be tried at the second term after such joinder or order. Code, s. 400; C. C. P., s. 220. 529. Issues of fact before the clerk; bond for cost. All issues of fact joined before the clerk shall be transferred to the superior court for trial at the next succeeding term of such court; and in case of such transfer neither party sliall lie required to give an under- taking for costs. 530. Continuance before term; affidavit for. Any party to an action may apply to tlic court in wliich it is pending, or to the judge thci'eof, after three days' notice in writing to the adverse party, to have the trial deferred to a term subsequent to that in whicli it is regularly triable; such a])])licatioii must be made tliirty days ,-,;!() CIVIL PROCEDURE— XA7. Trial. Cli. 12 before the trial term, and must be on affidavit. The court or judge may defer the trial as asked for, on siich terms as shall be just, if satisfied — 1. That the applicant has used due diligence to have his case ready for trial; and, 2. That by reason of circumstances beyond his control, which he shall set forth, he can not have a fair trial at the regular trial term ; if the application is made by reason of the expected absence of a witness, it shall state the name and residence of the witness, the facts expected to be proved by him, and the grounds for the expec- tation of his nonattendance, and that the applicant expects to pro- cure his evidence at or before some named subsequent term. The applicant shall in all cases pay the costs of the application. Code, s. 401; C. C. P., s. 227. 531. Continuance in term. The judge at any time during the term at which an action is triable, may postpone the trial on the application of either party, and on such terms as shall be just, if satisfied — 1. That the applicant has used due diligence to be ready for trial. 2. That he can not have a fair trial at that term, by reason of circumstances stated, and if the groimd of application be the non- attendance of a witness, the affidavit shall contain the particulars required by subdivision two of the preceding section. Unless the applicant shall also set forth in his affidavit that the facts upon which his application is grounded occurred or came to his knowledge too late to allow him to apply as prescribed in the preceding section, and that his application is made as soon as it reasonably could be after the knowledge of such facts, the postponement shall not be granted, except on the terms of the payment of the costs in the action for the term. Code, s. 402; C. C. P., s. 228; R. C, e. 31, s. 57. 532. Counter affidavits as to continuance. It shall be compe- tent in all civil cases only for the opposing side to controvert the allegations of fact in applications for continuance, and to offer counter affidavits to that end. And the judge shall not allow such continuance unless he shall be satisfied, after thorough examina- tion of the evidence as aforesaid, that the ends of justice demand it. 1885, c. 304. 533. Order of business. The criminal calendar shall be first disposed of, unless, by consent of counsel, or for reasons satisfactory to the judge, particular criminal actions may be deferred. The issues on the civil calendar shall be disposed of in the following 533 CIVIL PEOCEDURE— ZXZ. Trial. Ch. 12 order, unless, for the convenience of parties or the disjjatch of busi- ness, the court shall otherwise direct: 1. Issues of fact to be tried by a jury. 2. Issues of fact to be tried by the court. 3. Issues of law. Code, s. 403 ; C. C. P., s. 229. 534. Separate trials, when. A separate trial between a plain- tiff and any of the several defendants may be allowed by the court, whenever, in its opinion, justice will thereby be promoted. Code, s. 407; C. C. P., s. 230. 535. Judge to explain law; express no opinion on facts. No judge, in giving a charge to the petit jury, either in a civil or a criminal action, shall give an opinion whether a fact is fully or sufficiently proven, such matter being the true office and province of the jury ; but he shall state in a plain and correct manner the evi- dence given in the case and declare and explain the law arising thereon. Code, s. 413; C. C. P., s. 237; R. C, c. 31, s. 130; 1796, c. 452. 536. Instructions in writing, when. Evei-y judge, at the request of any party to an action on trial, made at or befoi-e the close of the evidence, before instructing the jury on the law, shall put his instructions in writing, and read them to the jury; he shall then sign and file them with the clerk as a part of the record of the action. Code, s. 414; C. C. P., s. 238. 537. Written instructions in jury room, when. Whenever a judge shall put his instructions to the jui'y in writing either of his own will or at the request of any party to an action on trial, he shall, at the request of either party to the action, allow the jury to take his instructions with them on their retirement, and the jury shall return said instructions with their verdict to the co\irt. 1S85, c. 137. 538. Requests for instructions. Counsel praying of the judge instructions to the jury, shall put their request in writing entitled of the cause, and sign them; otherwise the judge may disregard them. They shall be filed with the clerk as a jiart of tlie record. Code, 8. 41.";; C. 0. P., s. 239. 539. Demurrer to evidence. When on trlni of an issue of fact in a civil action, or si)ecial proceeding, the plaintiff .shall have produced his evidence and rested his case, the defendant may move 531) CIVIL PROCEDUEE— .YX7. Trial. Cli. 12 to dismiss the action, or for judgment, as in case of nonsuit. If the motion is allowed the plaintiff may except and ajjpeal to the sujireme court. If the motion is refused the defendant may except, and if the defendant introduces no evidence the jury shall pass upon the issues in the action, and the defendant shall have the benefit of his exception on appeal to the supreme court. But after the motion is refused he may waive his exception and then intro- duce his evidence just as if he had not made the motion. Hut he may again move to dismiss after all the evidence on both sides is in. If the motion is then refused, upon consideration of all the evidence, he may except, and after the jury shall have rendered its verdict, he shall have the benefit of such latter exception on appeal to the supreme court. 1897, c. 109: 1899, c. 131; 1901, e. 594. 540. Jury trial waived, how. Trial by jury may be waived by tlio several parties to an issue of fact, in actions on contract, and with the assent of the court in other actions in the manner fol- lowing : 1. By failing to appear at the trial. 2. By written consent, in person or by attorney, filed with the clerk. 3. By oral consent, entered in the minutes. Code, s. 41G; C. C. P., s. 240. Note. See subchapter herein. Controversy Without Action, ss. 803-805. 541. Findings of fact and conclusions of law by judge. Upon the trial of an issue of fact by the court, its decision shall be given in writing, and shall contain a statement of the facts foimd, and tlie conclusions of law separately; and upon a trial of an issue of law, the decision shall be made in the same manner, stating the conclusions of law. Such decision shall be filed with the clerk during the court at which the trial takes place. Judgment upon the decision shall be entered accordingly. Code, s. 417; C. C. P., s. 241. 542. Exceptions, when and how talli('(] contract to ])ay, 55G CIVIL PROCEDUEE— XZ77. Judgment. Ch. 13 absolutely or upon a contingency, a sum or siuns of money fixed by the terms of the contract, or capable of being ascertained therefrom by computation. Upon proof of personal service of summons, or of service of summons by publication, on one or more of the defend- ants, and upon the complaint being verified, judgment shall be entered at the return terra for the amount mentioned in the com- plaint, against the defendant or defendants, or against one or more of several defendants. 2. Where the defendant, by his answer in such action, shall not deny the plaintiff's claim, but shall set up a counterclaim, amount- ing to less than the plaintiff's claim, judgment may be had by the plaintiff for the excess of said claim over the said counterclaim, in like manner in any such action, iipon the plaintiff's filing with the court a statement admitting such counterclaim, which statement shall be annexed to and be a part of the judgment roll. 3. In actions where the service of the summons was by publica- tion, the plaintiff may, in like manner, apply for judgment, and the court must thereupon require proof to be made of the demand mentioned in the complaint, and if the defendant be not a resident of the state, must require the plaintiff or his agent to be examined on oath respecting any payments that have been made to the plain- tiff, or to any one for his iise on account of such demand, and may render judgnxent for the amount which he is entitled to recover. Before rendering judgment the court may in its discretion require the plaintiff to cause to be filed satisfactory security to abide the order of the court touching the restitution of any estate or effects which may be directed by such judgment to be transferred or delivered, or the restitution of any money that may be collected under and by virtue of said judgment, in case the defendant or his representatives shall apply and be admitted to defend the action, and shall succeed in such defense. 4. In actions for the recovery of real property, or for the posses- sion thereof, upon the failure of the defendant to file the under- taking required by law, or upon faihire of his sureties to justify according to law, unless the defendant is excused from giving such undertaking before answering. Code, ss. 385, 390; C. C. P.. s. 217; 1870-1, c. 42; 1869-70, c. 193, s. 4. Note. On what judgment clerk calculates interest, see ss. 1955, 1956. 557. By default and inquiry. In all other actions, except those mentioned in the preceding section, when the defendant shall fail to answer, and upon a like proof, judgment by default and inquiry may be had at the return term, and inquiry shall be executed at the next succeeding term. If the taking of an intricate or long account be necessary to execute properly the inquiry, the court, at Rev. Vol. 1—6 145 557 CIVIL PEOCEDURE— XX/r. Judgment. Ch. 12 the return term, may order the accoimt to be taken by the clerk of the court or some other fit ])erson, and the referee shall make his report at the next succeeding term; in all other cases, the inquiry shall be executed by a jury, unless by consent the court is to try the facts as well as the law. Code, s. 386. 558. By default for defendant, when. If the answer contain a statement of new matter constituting a counterclaim, and the plain- tiff fail to reply or demur thereto, the defendant may move for such judgment as he is entitled to upon such statement; and if the case require it, an order for an inquiry of damages, by a jury may be made. Code, s. 249; C. C. P., s. 106. 559. Rendered in vacation, when. In all cases where the supe- rior court in vacaticin has jurisdiction, and all of the parties unite in the proceedings, they may apply for relief to the superior court in vacation, or in term time, at their election. Code, s. 230; 1871-2. c. 3. 560. On frivolous pleading. If a demurrer, ansMer or reply be frivolous, the party prejudiced thereby may apply to the court or to the judge thereof for judginent thereon, and judgment may be given accordingly. Code, s. 388; C. C. P., s. 218. 561. Stands until reversed. Every judgment given in a court of record having jurisdiction of the subject, shall be, and continue in force until reversed according to law. Code, s. 935; P. C, c. 31, s. 103; 4 Hen. YV., c. 23. 562. Applicable to justice's courts. This subchapter shall apply, as near as may be, to proceedings in courts of justices of the peace. Code, s. 389. 563. For whom and against whom given; failure to prose- cute; married women, l. Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defeiulants; and it may determine the ultinuitc rights of the parties on each side, as between themselves. 2. And it may grant to the defendant any affirmative relief to which he may be entitled. 3. In an action against several defendants, the court may, in its discretion, render judgment against one or more of tiiem, leaving the action to proceed against the others, whenever a several judg- ment may be proper. 140 563 CIVIL PROCEDURE— XX/T'. Judgment. Ch. 12 4. The court may also dismiss the complaint, with costs in favor of one or more defendants, in case of unreasonable neglect on the part of the plaintiff to serve the summons on other defendants, or to proceed in the cause against the defendant or defendants served. In an action brought by or against a married woman, judgment may be given against her as well for costs as for damages, or both for such costs and for such damages, in the same manner as against other persons, to be levied and collected of her separate estate, and not otherwise. Code, s. 424; C. C. P., s. 248. 564. How entered, party dying after verdict. In no action shall the death of either party between the verdict and the judg- ment be alleged for error, if such judgment be entered within two terms after the verdict. Code, s. 938; R. C, c. 31, s. 112; 17 Charles II., c. 8. 565. Limited by demand in complaint, when. The relief granted to the plaintiff, if there be no answer, can not exceed that which he shall have demanded in his complaint; but in any other case the court may grant him any relief consistent with the case made by the complaint and embraced within the issue. Code, s. 425; C. 0. P., s. 249. 566. Legal title with covenants passed by, when. In any action wherein the court shall declare that a party is entitled to the possession of property, real or personal, the legal title whereof may be in another or others, parties to the suit, and the court shall order a conveyance of such legal title to him so declai*ed to be entitled, or where, for any cause, the court shall order that one of the parties holding property in trust shall convey the legal title therein to be held in trust to another jjerson although not a party, the court, after declaring the right and ordering the conveyance, shall have power also, to be used in its discretion, to declare in the order then made, or in any made in the progress of the cause, that the effect thereof shall be to transfer to the party to whom the conveyance is directed to be made, the legal title of the said prop- erty, to be held in the same plight, condition and estate as though the conveyance ordered was in fact executed; and shall bind and entitle the parties ordered to execute or to take benefit of the con- veyance, in and to all such provisions, conditions and covenants as may be adjudged to attend the conveyance, in the same man- ner and to the same extent as the conveyance would if the same were executed according to the order. And any party taking benefit under the judgment may have the same redress -at law on account 566 CIVIL PKOCEDURE— ZX/T. Judgment. Ch. 12 of the matter adjudged as he might on the conveyance, if the same had been executed. Code, s. 420; R. C, c. 32, s. 24; 1850, c. 107; 1874-5, c. 17. 567. Regarded as a deed and registered, when. Every judg- ment, in which the transfer of title shall be so declared, shall be regarded as a deed of conveyance, executed in due form and by capable persons, notwithstanding the want of capacity in any per- son ordered to convey, and shall be registered in the proper county, under the same rules and regulations as may be prescribed for con- veyances of similar property executed by the party ; and all laws which may be passed for extending the time for registration of deeds shall be deemed to include such judgments, provided the con- veyance, if actually executed, would be so included. Code, s. 427; R. C, c. 32, s. 25; 1850, c. 107, s. 2; 1874-5, c. 17, s. 2. 568. How registered. The party desiring registration of such judgment shall produce to the register a copy thereof, certified by the clerk of the court in which it is enrolled, under the seal of the court, and the register shall record both the judgment and cer- tificate. Code, s. 429; R. C, c. 32, s. 27; 1850, c. 107, s. 4; 1874-5, c. 17, s. 4. 569. Certified registered copy evidence. In all legal proceed- ings, touching the right of parties derived under such judgment, a certified copy thereof from the register's books shall be evidence of its existence and of the matters therein contained, as fully as if the same were proved by a perfect transcript of the whole case. Code, s. 428; R. C, c. 32, s. 26; 1850, c. 107, s. 3; 1874-5, c. 17, s. 3. 570. In action for recovery of personal property, in an action to recover the possession of personal property, judgment for the plaintiff may be for the possession, or for the recovery of posses- sion, or for the value thereof, in case a delivery can not be had, and the damages for the detention. If the property has been de- livered to the plaintiff, and the defendant claims a return thereof, judgment for the defendant may be for a return of the property, or for the value thereof in case a return can not be had, and dam- ages for taking and withholding the same. Code, s. 431; C. C. P., s. 251. 571. What judge approves judgments. In all eases where a judgment, decree or order of the superior court is required to be approved by a judge, it shall be approved by the judge having jurisdiction of receivers and injunctions. Code, s. 432; 1876-7, c. 223, s. 3; 1879, c. 63; 1881, c. 51. Note. For judge approving when infants are petitioners, see s. 720. 148 572 CIVIL PEOCEDURE— ZA7T'. Judgment. Ch. 12 572. Judgment roll. Unless the party or his attorney shall fur- nish a judgment roll, the clerk, immediately after entering the judgment, shall attach together and file the following papers which shall constitute the judgment roll : 1. In case the comj^laint be not answered by any defendant, the summons and compjlaint, or cojjies thereof, jjroof of service, and that no answer has been received, the report, if any, and a copy of the judgment. 2. In all other cases, the summons, pleadings, or copies thereof, and a copy of the judgment, with any verdict or report, the offer of the defendant, exceptions, case, and all orders and papers in any way involving the merits and necessarily affecting the judgment. Code, s. 434; C. C. P., s. 253. 573. Docketed and indexed; all of same term as of first day. Every judgment of the superior court, affecting the right to real prop- erty, and any judgment requiring in whole or in part the payment of money, shall be entered by the clerk of said superior court on the judgment docket of said court. The entry shall contain the names of the parties, and the relief granted, date of judgment and date of docketing; and the clerk shall keep a cross-index of the whole, with the dates and nmnbers thereof. All judgments rendered in any county by the superior court thereof, during a term of the court, and docketed during the same term, or within ten days thereafter, shall be held and deemed to have been rendered and docketed on the first day of said term. Code, s. 433; C. C. P., s. 252; Supr. Ct. Rule VIII. 574. When, where and how docketed; lien. Upon filing a judg- ment roll upon a judgment affecting the title of real property, or directing in whole or in part the payment of money, it shall be docketed on the judgment docket of the superior court of the county where the judgment roll was filed, and may be docketed on the judg- ment docket of the superior court of any other county upon the filing with the clerk thereof a transcript of the original docket, and shall be a lien on the real property in the county where the same is docketed, of every person against whom any such judgment shall be rendered, and which he may have at the time of the docketing thereof in the county in which such real property is situated, or which he shall acquire at any time thereafter, for ten years from the date of the rendition of the judgment. But the time during which the i^arty recovering or owning such judgment shall be, or shall have been, restrained from proceeding thereon by an order of injunc- tion, or other order, or by the operation of any appeal, or by a statu- tory prohibition, shall not constitute any part of the ten years afore- 574 CIVIL PEOCEDUEE— XA7T'. Judgment. Ch. 12 said, as against the defendant in snch judgment, or the party obtain- ing snch orders or making such appeal, or any other person who is not a purchaser, creditor or mortgagee in good faith. Code, s. 435; C. C. P., s. 254. Note. Statute of limitation does not run against judgment when homestead allotted, see s. 685. 575. Of supreme court docketed in superior court; lien; tran- script. It shall be the duty of the clerk of the supreme court, on application of the party obtaining judgment in said court, directing in whole or in part the payment of money, or affecting the title to real estate, or on the like application of the attorney of record of said party, to certify under his hand and the seal of said court a transcript of said judgment, setting forth the title of said court, the names of the parties thereto, the relief granted, that said judgment was so rendered by said court, the amount and date of said judgment, what part thereof bears interest and from what time ; and said clerk shall send such certificate and transcript to the clerks of the superior court of such counties as he may be directed ; and the clerk of the sujierior court receiving the said certificate and transcript shall docket the same in like manner as judgment rolls of the superior court may be docketed. And when so docketed, the lien of said judgment shall be the same in all respects, be subject to the same restrictions and qualifications, and the time shall be reckoned as is provided and prescribed in the preceding sections for judgments of the superior court, so far as the same may be applicable. The party desiring the certificate and transcript provided for in this section, may obtain the same at any time after such jitdgment has been ren- dered, unless the sujDreme court shall otherwise direct. Code, s. 436; 1881, c. 75, ss. 1, 4. 576. Federal court judgments docketed; lien. Judgments and decrees I'endered in the circuit and district courts of the United States within this state may be docketed on the judgtnent dockets of the superior courts in the several counties of this state for the pur- pose of creating liens of such judgments and decrees upon property within the county where the same may be so docketed in like manner as the judgments of said superior courts may be docketed, for the purpose of creating liens upon property, but in no other manner, extent or order than as contemplated, provided and intended by the act of Congress entitled "An act to regulate the liens of judgments and decrees of the courts of the United States," approved August first, one thousand eight hundred and eighty-eight. And it shall be the duty of the clerks of the said superior courts, Avhen a judgment roll of said circuit and district courts shall be filed with him, to docket the same as judgments of the said superior courts are required to be docketed. 1889, c. 430. 150 577 CIVIL PROCEDURE— XX7F. Judgment. Ch. 12 577. Judgment paid to clerk; docket credited; transcript to other counties. The party agaiust whom any judiiinent lor the pay- ment of money may be rendered, by any court of record, may pay the whole, or any part thereof, to the clerk of the court in which the same may have been rendered, at any time thereafter, although no execution may have issued on such judgment; and such payment of money shall be good and available to the party making the same, and the clerk shall enter the payment on the judgment docket of the court, and immediately forward a certificate thereof to the clerk of the superior coiirt of each county, to whom a transcript of said judg- ment has been sent, and the clerk of such superior court shall enter the same on the judgment docket of such court and file the orginal with the judgment roll in the action. Code, s. 438^ R. C, c. 31, s. 127; 1823, c. 1212. 578. Clerk to pay money to party entitled. The clerk, to whom money shall be paid as aforesaid, shall pay the same to the party entitled to receive it, under the same rules and penalties as if the money had been paid into his office by virtue of an .execution. Code, s. 439; E. C, c. 31, s. 128; 1823, c. 1212, s. 2. 579. Credits upon judgments. Where any payment has been made on any judgment docketed in the office of the clerk of the superior court, and no entry thereof has been made on the judgment docket, or where any docketed judgment appealed from has been reversed or modified on appeal and no entry thereof has been made on such docket, any jjerson interested therein may move in the cause before the clerk, upon affidavit after notice to all persons interested, to have such credit, reversal or modification entered; and upon the hearing before the clerk he may hear affidavits, oral testimony, deposi- tions and any other competent evidence, and shall render his judg- ment ; from which any party may appeal in the same manner as in appeals in special proceedings. On the trial of any issue of fact on such appeal either party may demand a jury trial, which shall be had upon the evidence before the clerk, which he shall reduce to ^v^iting. On a final judgment ordering any such credit, reversal or modification, transcript thereof shall be sent by the clerk of the supe- rior court to each county in which the original judgment has been docketed, and the clerk of such county shall enter the same on the judgTuent docket of his county opposite such judgment and file the transcript. No final process shall issue on any such judgment after affidavit filed in the cause until the motion for credit, reversal or modification shall have been finally disposed of. 1903, c. 558. NoTK. For form of judgment for purchase-money of land, see subchapter Execution, s. 627. For estoppel of judgment after amendment, see s. 508. l.ol 580 CIVIL PROCEDURE— -YXr. Judgment Confessed. Ch. 12 XXY. Judgment Confessed. 580. When and for what. A judgment by confession may be entered without action either in or out of term, cither for money due or to become due, or to secure any person against contingent liability on behalf of the defendant, or both, in the manner pre- scribed by this subchapter. Code, s. 570; C. C. P., s. 325. 581. Debtor to make verified statement. A statement in writing must be made, sigTied by the defendant, and verified by his oath, to the following effect: 1. It must state the amoimt for which judgment may be entered, and authorize the entry of judgment therefor. 2. If it be for money due, or to become due, it must state con- cisely the facts out of which it arose, and must show that the sum confessed therefor is justly due, or to become due. 3. If it be for the purpose of securing the plaintiff against a contingent liability, it must state concisely the facts constituting the liability, and must show that the sum confessed therefor does not exceed the same. Code, 3. 571; C. C. P., s. 326. 582. Judgment; costs; execution; when due by instalments. The statement may be filed with the clerk of the superior court of the county in which the defendant resides, or if he does not reside in the state, of some county in which he has property. The clerk shall indorse upon it and enter on his judgment docket a judgment of the court for the amount confessed, with three dollars costs, together with disbursements. The statement and affidavit, with the judgment indorsed, shall thenceforth become the judgment roll. Executions may be issued and enforced thereon in the same man- ner as upon judgments in other cases in such courts. When the debt for which the judgment is recovered is not all due, or is paya- ble in instalments, and the instalments are not all due, the execu- tion may issue upon such judgment for the collection of such instal- ments as have become due, and shall be in the usual form; but shall have indorsed thereon, by the attorney or person issuing the same, a direction to the sheriff' to collect the amount due on s\ich judgment, with interest and costs, which amount shall be stated, with interest thereon, and costs of said judgment. JSTotwithstanding the issue and collection of such execution, the judgment shall remain as security for the instalments thereafter to become dtic; and when- ever any further instalment becomes due, execution may, in like manner, be issued for the collection and enforcement of the same. Code, s. 572; C. C. P., s. 327. 152 583 CIVIL PROCEDUEE— A'XT7. Appeal. Cb. 12 XXVI. Appeal. 583. Writs of error abolished. Writs of error in civil actions are abolished ; and tbe only mode of reviemng a judgment, or order, in civil action, sball be that prescribed by this chapter. Code, s. 544; C. C. P., s. 296. 584. Certiorari, recordari and supersedeas. Writs of certio- rari, recordari and supersedeas are hereby authorized as heretofore in use. The vs^rits of certiorari and recordari, when used as substi- tutes for an appeal, may issue when ordered upon the applicant filing a wi'itten undertaking for the costs only; but the supersedeas, to suspend execution, shall not issue until an undertaking is filed, or a deposit made to secure the judgment sought to be vacated, as in cases of appeal where the execution is stayed. Code, s. 545; 1874-5, c. 109. 585. Who may appeal. Any party aggi-ieved may appeal in the cases prescribed in this chapter. Code, s. 547; C. C. P., s. 298. 586. From clerk to judge. Appeals shall lie to the judge of the superior court having jurisdiction, either in term time or vacation, from judgments of the clerk of the superior court in all matters of law. In case of such transfer or appeal neither party shall be required to give an undertaking for costs ; and the clerk shall trans- mit, on such transfer or appeal, to the superior court, or to the judge thereof, the pleadings, or other papers, on which the issues of fact or of law arise. An appeal must be taken within ten. days after the entry of the order or judgment of the clerk. But an appeal can only be • taken by a party aggTieved, who appeared and moved for, or opposed the order or judgment appealed from, or who, being entitled to be heard thereon, had no opportunity of being heard, which fact may be shown by affidavit or other proof. Code, s. 116. 587. In what oases taken. An appeal may be taken from every judicial order or determination of a judge of a superior court, upon or involving a matter of law or legal inference, whether made in or out of term, which affects a substantial right claimed in any action or proceeding; or which in effect determines the action, and pre- vents a judgment from which an appeal might be taken ; or discon- tinues the action, or grants or refuses a new trial. Code, s. 548; C. C. P., s. 299; 1818, c. 962, s. 4. Note. For appeal in creditors' proceeding against personal representative, see s. 119. 588 CIVIL PROCEDURE— A'-Y 17. Appeal CL 12 588. From judge in special proceedings, .biv party, within ten daj's after notice of such judgment, may appeal to the supreme court of the state from such judgment, ujion any matter of law or legal inference therein, under the regitlations provided for appeals in other cases. But execution shall not be suspended until the tmdertakings required by law shall have been given. If issues, both of law and of fact, or issues of fact only, are raised before the clerk of the superior court, he shall transfer the case to the civil issiie docket for trial of the issues at the ensuing term of the supe- rior court. Code, s. 256; C. C. P., s. 115. 589. Interlocutory orders reviewed on appeal from judgment. Upon an appeal from a judginent, the court may review any inter- mediate order involving the merits and necessarily affecting the judgment. Code, s. 562; C. C. P., s. 313. 590. When taken; execution stayed, when. The appeal must be taken from a judgment rendered out of term within ten days after notice thereof, and from a judgment rendered in term within ten days after its rendition, unless the record shows an appeal taken at the trial, which shall be sufficient, but execution shall not be sus- pended until the giving by the appellant of the undertakings herein- after required. Code, s. 549; 1889, c. 161; C. C. P., s. 300. 591. Entered on docket; case on appeal, how stated and set- tled; penalty on judge failing to settle. Witliiu the time prescribed in the preceding section, the appellant shall cause his appeal to be entered by the clerk on the judgment docket, and notice thereof to be given to the adverse party unless the record shows an appeal taken or prayed at the trial, which shall be sufficient. He shall cause to be prepared a concise statement of the case, embodying the instruc- tions of the judge as signed by him, if there be an exception thereto, and the requests of the counsel of the parties for instructions if there be any exception on account of the granting or withholding thereof, and stating separately in articles numbered, the errors alleged. A copy of this statement shall be served on the respondent within fifteen days from the cuti-y of the appeal taken ; within ten days after such service the respondent shall return the copy with his approval or specific amendments indorsed or attached ; if the case be approved by the respondent, it shall be filed with the clerk as a part of the record ; if not returned with objections within the time prescribed, it shall be deemed approved ; if returned with objec- 591 CIVIL PEOCEDURE— XXFZ. Appeal Ch. 12 tions as prescribed, the appellant shall immediately request the judge to fix a time and place for settling the case before him; and the judge shall forthwith notify the attorneys of the parties to appear before him for that purpose at a certain time and place, within the judicial district, which time shall not be more than twenty days from the receipt of such reqiTSst; and at the time and place stated, the judge shall settle and sign the case, and deliver a copy to the attorney of each party, or if the attorneys be not present, file a copy in the oifice of the clerk of the court: Provided, that if the judge shall have left the district before the notice of disagTee- ment, he may settle the case without returning to the district. In settling the case, the written instructions signed by the judge, and the written requests for instructions signed by the counsel, and the written exceptions shall be deemed conclusive as to what such instructions, requests and exceptions were. If a copy of the case settled was delivered to the appellant, he shall within five days thereafter file the same with the clerk, and in case he fails to do so, the respondent may file his copy. The judge shall settle the case on appeal within sixty days after the termination of a special term or after the courts of the district shall have ended, and if the judge in the meantime shall have gone out of office, he shall settle the case as if he were still in office, and any judge failing to comply with this section shall be liable to a penalty of five hundred dollars, for the use of any person who will sue for the same. Code, s. 550; 1889, c. 161; C. C. P., s. 301; 1905, c. 448. 592. Clerk to prepare transcript. The clerk on receiving a copy of the case settled, as required in the preceding section, shall make a copy of the judgment roll and of the case, and within twenty days transmit the same, duly certified to the clerk of the supreme court. The clerk, except in cases where parties are allowed to appeal without giving an undertaking on appeal, shall not be re- quired to make the copy of the record in the case for the supreme court imtil the appellant shall have given the undertaking on appeal or made the deposit required. Code, s. 551; 1889, c. 135; C. C. P., s. 302. 593. Undertaking on appeal; filed in supreme court, when. To render an appeal effectual for any purpose in any civil cause or special proceeding, a written undertaking miist be executed on the part of the appellant, with good and sufficient surety, in such sum as may be ordered by the court, not to exceed the siun of two hun- dred and fifty dollars, to the effect that the appellant will pay all costs which may be awarded against him on the appeal ; or such sum as may be ordered by the court must be deposited with the clerk by 593 CIVIL PEOCEDUKE— ZXrZ. Appeal Ch. 12 whom the judgment or order was entered, to abide the event of the appeal ; such undertaking or deposit may be waived by a written con- sent on the part of the respondent. jSTo appeal shall be dismissed in the supreme court on the ground that the undertaking on appeal was not filed earlier or the deposit made earlier, if the undertaking shall be filed or such deposit made before the record of the case is transmitted by the clerk of the superior court to the supreme court. And when no undertaking on appeal has been filed, or deposit made before the record of the case is transmitted to the supreme court, the supreme court shall, upon good cause being shown, on such terms as may be just, allow the appellant to file an undertaking or make the deposit. Code, s. 552; 18S9, e. 135, s. 2; C. C. P., s. 303; 1871-2, c. 31. 594. Justification of sureties. An undertaking upon an appeal must be accompanied by the aifidavit of one of the sureties that he is worth double the amount specified therein. The respondent may, however, except to the sufficiency of the sureties within ten days after the notice of the appeal ; and unless they or other sureties justify within ten days thereafter, the appeal shall be regarded as if no ixndertaking had been given. The justification shall be \ipon a notice of not less than five days. Code, s. 560; C. C. P., s. 310; 1887, c. 121. 595. Undertaking to be filed witii clerl<. The undertaking must be filed with the clerk with whom the judgment or order appealed from was entered. This chapter as to the security to be given upon appeals, and as to the stay of proceedings, shall apply to all appeals taken to the supreme court. Code, s. 561; C. C. P., s. 312. 596. Notice of motion to dismiss for irregularity; new bond or deposit. Before the appellee shall be permitted to move to dismiss an appeal, either for any irregularity in the undertaking on appeal, or for failure of the sureties to justify, he shall give written notice to the appellant of such motion to dismiss at least twenty days before the district from which the cause is sent up is called, which shall state the grounds upon which the motion is based. In all such cases at least five days before the district from wliich the cause is sent up is called, the appellant may file with the clerk of the supreme court a new bond justified according to law. The penalty in the new bond sluill be the same in amount as the penalty in the original bond, or in lieu of filing such new bond the appellant may deposit with the clerk of the supreme court a sura of money equal to the penalty in the original bond. When a new bond has been thus 596 CIVIL PROCEDURE— XXFJ. Appeal. Ch. 12 filed or deposit made the cause shall stand as if the bond had been duly given or deposit duly made in the coiirt below. 1887. c. 121. 597. Appeals in forma pauperis. When any party to a civil action tried and determined in the superior court shall, at the time of trial, desire an appeal from the judgment rendered in said action to the supreme court, and shall be unable, by reason of his poverty, to make the deposit or to give the security required by law for said appeal, it shall be the duty of the judge or clerk of said superior court to make an order allowing said party to appeal from said judgment to the supreme court as in other cases of appeal, without giving security therefor : Provided, that the party desiring to appeal from said judgment shall within five days make affidavit that he is unable by reason of his poverty to give the security required by law for said appeal, and that said party is advised by counsel learned in the law that there is error in matter of law in the decision of the superior court in said action : Provided further, that said affidavit shall be accompanied by a written statement from a practicing attorney of said superior court that he has examined the affiant's case, and that he is of opinion that the decision of the superior court, in said action, is contrary to law : Provided, that the appeal when passed upon and granted by the clerk shall be within ten days from the expiration by law of said term of court. Code, s. 553; 1889, e. 161; 1873-4, c. 60. 598. Undertaking to stay proceedings, money demand; perish- able property sold. If the appeal be from a judgment directing the i^ayment of money, it shall not stay the execution of the judg- ment unless a written undertaking be executed on the part of the appellant, by one or more sureties, to the effect that if the judgment appealed from, or any part thereof, be affirmed, or .the appeal be dismissed, the appellant will pay the amount directed to be paid by the judgment, or the part of such amount as to which the judg- ment shall be affirmed, if it be affirmed only in part, and all dam- ages which shall be awarded against the appellant upon the appeal. Whenever it shall be satisfactorily made to appear to the court that since the execution of the iindertaking the sureties have become insolvent, the court may, by rule or order, require the appellant to execute, file and serve a new undertaking, as above ; and in case of neglect to execute such undertaking within twenty days after the service of a copy of the rule or order requiring such new under- taking, the appeal may, on motion to the court, be dismissed with costs. Whenever it shall be necessary for a party to any action or proceeding to give a bond or an undertaking with surety or sure- 598 CIVIL PEOCEDURE— XXTV. Ajypeal. Ch. 12 ties, he may, iu lieu thereof, deposit with the officer into court as the case may require, money to the amount for which such bond or undertaking is to be given. The co\irt in which such action or proceeding is pending may direct what disposition shall be made of such money pending the action or pi'oceeding. In any ease where, by this section, the money is to be deposited with an officer, a judge of the court at any time, upon the application of either party, may, before such deposit is made, order it to be deposited in covirt instead of with such officer; and a deposit made, pursuant to such order, shall be of the same effect as if made with such officer. The perfecting of an appeal by giving the undertaking mentioned in this section shall stay proceedings in the court below upon the judgment appealed from ; except when the sale of jierishable property is directed, the court below may order the proiDerty to be sold and the proceeds thereof to be deposited or invested, to abide the judgment of the appellate court. Code, s. 554; C. C. P., ss. 304, 311. 599. Property deposited in court to stay proceedings, when. If the judgment appealed from direct the assignment or dcliverv of documents or personal property, the execution of the judgment shall not be stayed by appeal, unless the things required to be assigTied or delivered be brought into court, or jilaced in the cus- tody of such officer or receiver as the court shall appoint, or unless an undertaking be entered into on the part of the appellant, by at least two sureties, and in such amount as the court or a judge thereof shall direct, to the effect that the appellant will obey the order of the appellate court upon the appeal. Code, s. 555; C. C. P., s. 305. 600. Conveyance executed to stay proceedings, when. If the judgiuent appealed from direct the execution of a conveyance or other instrument, the execution of the judgment .shall not be stayed by the appeal until the instrument shall have been executed and deposited with the clerk with whom the judgment is entered, to abide the judgment of the appellate court. Code, s. 556; C. C. P., s. 306. 601. Proceedings stayed in possessory action and foreclos- ure, how. If the judgment appealed from direct the sale or deliv- ery of possession of real property, the execution of the same shall not be stayed, unless a written undertaking be executed on the part of the appellant, with one or more sureties, to the effect that, during the possession of such property by the appellant, he will not commit, or suffer to be committed, any waste thereon, and that 601 CIVIL PEOCEDURE— XXF7. Appeal. Ch. 12 if the judgment be affirmed he will pay the value of the use and occuijation of the property, from the time of the appeal until the delivery of possession thereof, pursuant to the judgment, not ex- ceeding a sum to be fixed by a judge of the court by which judg- ment was rendered, and which shall be specified in the undertaking. When the judg-ment is for the sale of mortgaged j^remises, and the payment of a deficiency arising upon the sale, the undertaking shall also provide for the payment of such deficiency. Code, s. 557; C. C. P., s. 307. 602. Extent of stay; security limited for fiduciaries. \Yhen- ever an appeal is perfected as provided by this chapter it stays all further proceedings in the court below upon the judgment appealed from, or ujDon the matter embraced therein ; but the court below may proceed upon any other matter included in the action and not affected by the judginent appealed from. And the court below may, in its discretion, dispense M-ith or limit the security required, when the appellant is an executor, administrator, trustee, or other person acting in another's right; and may also limit such security to an amoimt not more than fifty thousand dollars, where it would otherwise exceed that sum. Code, s. 558; C. C. P., s. 308. 603. Undertal lung a.s owned and occupied by the homesteader or by any one for him, but when conveyed by him in the mode authorized by the constitution, article ten, section eight, the exemption thereof ceases as to liens attaching prior to the convey- ance. The homestead right being indestructible, the homesteader who has conveyed his allotted homestead can have another allotted, and as often as may be necessary: Provided, this shall not have any retroactive effect. 1905. 0. 111. 687. Sheriff to summon and swear appraisers; surveyor, when. Before levying upon the real estate of any resident of this state who is entitled to a homestead imder this chapter and the constitution of this state, article ten, the sheriff or other officer charged with such levy, shall summon three discreet persons qualified to act as jurors, to whom he shall administer the following oath : "I, A. B., do solemnly swear (or affirm) that I have no interest, near or remote, in the homestead exemption of C. T)., and that I will faithfully perform the duties of appraiser (or assessor, as the case may be), in valuing and laying off the same. So help me, God." Provided, that in cases where he shall deem it necessary he may summon the county surveyor or some other competent surveyor to assist in laying off the homestead by metes and bounds. Code, s. 502; 1893, c. 58; 1868-9, c. 137, s. 2. Note. For allotment wliere land is held in common, see s. 2489. 688. Duty of appraisers. The said appraisers shall thereupon proceed to value the homestead with its dwelling and buildings thereon, and lay off to said owner such portion as he may select, or to any agent, attorney, or other person in his behalf, not exceeding in value one thousand dollars, and to fix and describe the same by metes and bounds. Code, s. 503; 1868-9, c. 137, s. 3. 689. Return of appraisers; filed and registered; copy to county of execution; original or copy evidence. They shall tlien make and sign in the ]iresence of the officer a return of their proceedings, set-* ting forth the property exempted, which shall be returned by the officer to the clerk of the court for the county in whicli the home- 089 CIVIL PROCEDUKE— ZXX/. Property Exempt. Ch. 12 stead is situated and filed with the judgment roll in the action, and a minute of the same entered on the judgment docket, and a certified copy thereof under the hand of the clerk shall be registered in the oflice of the register of deeds for the county, and said officer shall likewise make a transcript of said return over his hand and return the same without delay to the clerk of the court of the county from whence the execution issued, and said clerk shall likewise file and make minute of the same as above directed, and in all judicial pro- ceedings the original return or a certified copy thereof may be read in evidence. Code, s. 504; 1887, e. 272; 1868-9, c. 137, s. 4. 690. Liability of officer or appraiser conspiring. Any oflicer, appraiser, or assessor who shall wilfully or corruptly conspire with any judgment debtor, judgment creditor, or other person, to under- value, or to overvalue, the homestead or personal property exemption of any debtor, or shall assign false metes and bounds, or shall make or procure to be made a false and fraudulent return thereof, shall be answerable in a civil action to the party injured thereby for all costs and damages. Code, ss. 517, 518; 1868-9, c. 137, ss. 18, 19. Note. For criminal liability, see ss. 3584-3586. 691. Re-allotment for increase of value; appeal; statute not exclusive. Any judgment creditor of a debtor whose homestead has been allotted may apjjly in writing to the clerk of the superior court of the county in which such homestead lies for an order for the re-allotment of said homestead, if there be in the hands of the sheriff of that county an execution issued from the proper court against said debtor. Such application shall be accompanied by the affi- davits of three disinterested freeholders of the county in which said homestead lies, setting forth that, in their opinion, said homestead has increased in value fifty per centum or mqre since the last allot- ment thereof. Upon the filing of said application and affidavit the clerk shall issue notice to the judgment debtor to appear before him on a day not more than five days from the day of the service of said notice and show cause why said homestead shall not be re-allotted. Said notice shall state ui^on whose application the notice is issued. Upon the return day of said notice the said clerk shall consider the affidavit filed, as heretofore required, and such additional affidavits as may be filed by either party, and if, after hearing and considering the same, he is of opinion that the said homestead has probably appre- ciated in value fifty per centum or more since the last allotment, he shall command the sherifi' to allot to tlie judgment debtor his home- stead in the same niauuer as if no homestead had been allotted. 691 CIVIL PEOCEDURE— A-A'A7. Property Exempt. Ch. V2 And if upon such allotment any excess is found, it shall be disposed of by the sheriff as in ordinary cases of exec\ition and levy. From the order of the clerk commanding- a re-allotment, or I'efusinn- the same, either party may appeal to the judi^e holding the court of the district, or to the judge of the district, either of whom shall hear the same in chambers in any county of the judicial district to which the county in which the proceedings were instituted belongs. And in all other respects the proceedings iipon such appeal shall be as now provided by law for appeals from the clerk on issues of law. This section shall not be construed to prevent the judgment creditor from resorting to the equity jurisdiction of the courts for a re-allot- ment of the homestead of his judgment debtor in any case. 1893, e. 149. Xote. For costs, see s. 1268. 692. Levy on excess; return of officer. The levy may be made upon the excess of the homestead, not laid off according to this chap- ter, and the officer shall make substantially the following return upon the execution : "A. B., C. D., and E. F., summoned and qualified as appraisers or assessors (as the case may be) who set off to X. Y. the homestead exempt by law. Levy made upon the excess." Code, s. 505; 1868-9, c. 137, s. 5. 693. When no election by owner, appraisers elect. In ease no election is made by the owner, his agent, attorney, or any one acting in his behalf, of the homestead, to be laid off as exempt, the appraisers shall make such election for him, including always the dwelling and buildings used therewith. Code, s. 506; 1868-9, c. 137, s. 6. 694. Tracts not contiguous included, when. Different tracts or parcels of land not contiguous may be included in the same home- stead, when a homestead of contiguous land is not of the value of one thousand dollars. Code, s. 509; 1868-9, e. 137, s. 15. 695. Personal property not to exceed $500 appraised on de- mand; manner; return. Wlunevcr the ju'VMinal pn.in-ily i>f any resi- dent of this state shall be levied upon \>y virtue of any execution or other final process issued for the collection of any debt, and the owner or any agent, or attorney in his behalf, shall demand that the same, or any part thereof, shall be exempt from sale under such exe- cution, the sheriff or other oflicer making sucii levy shall summon three appraisers, as heretofore provided, wiio, having been first duly sworn, shall appraise and lay off to the judgment debtor such articles of personal property as lie or aimllici- in his hclialt' may select, and 695 CIVIL PROCEDUKE— A'XA7. Property Exempt. Cb. 12 to Avhicli he may be entitled under tbis cbapter and the constitution of the state, in no case to exceed in value five hundred dollars, which articles shall be exempt from said levy, and return tbei-eof shall be made by the appraisers, as upon the laying off of a homestead exemp- tion. Code, s. 507; 1868-9, c. 137, ss. 12, 13. 696. Appraiser's oath and fees. The persons summoned to appraise the personal property exemption shall take the same oath and be entitled to the same fees as the appraisers of the homestead, and when both exemptions are claimed by the judgment debtor, at the same time, one board of appraisers shall lay off both and be entitled to but one fee. Code, s. 508; 1868-9, c. 137, s. 14. 697. Appraisers to set apart selected property; return to regis- ter of deeds. Said assessors shall set apart of the personal property of said applicant, to be by him selected, articles of personalty to which he may be entitled under this chapter, not exceeding in value the sum of five hundred dollars, and make and sign a descriptive list thereof, and return the same to the register of deeds. Code, s. 512; 1868-9, c. 137, s. 8. 698. Return registered. It shall be the duty of the register of deeds to endorse on each of said returns the date when received for registration, and to cause the same to be registered without unneces- sary delay. The said register shall receive for registering the said returns the same fees that may be allowed him by law for other simi- lar or equivalent services, which fees shall be jiaid by said resident applicant, his agent or attorney, upon the reception of said returns by the register. Code, s. 513; 1868-9, c. 137. s. 9. 699. Exceptions to valuation and allotment; procedure. If the judgment creditor for whom levy is made, or judgTaent debtor or other person entitled to homestead and personal property exemption, shall be dissatisfied with the valuation and allotment of the apprais- ers or as.sessors (as the case may be) he, within ten days there- after, or any other creditor, within six months, and before sale imder execution of the excess, may notify the adver.se party and the sheriff having the execution in hand, and file with the clerk of the superior court of the county where the said allotment shall be made a tran- script of the return of the appraisers or assessors (as the case may be) which they or the sheriff shall allow to be made upon demand, together with his objections in writing to said return; and there- upon the said clerk shall put the same on the. civil issue docket of 699 CIVIL PEOCEDUEE— XA'A7. Property Exempt. Cli. li> said superior court for trial at the next term thereof as other civil actions, and such issue joined shall have precedence over all other issues at such term. And the sheriff shall not sell the excess until after the determination of said action : Provided, that the ten days and six months respectively shall begin to run from the date of the filing of the return of the valuation and allotment of the appraisers or assessors by the officer with the clerk of the superior court of the county from whence the execution issued. Code, s. 519; 1887, c. 272, s. 2; 1883, c. 357. 700. When increase demanded; what jury shall find; commis- sioners appointed by court; report. When an increase of the exemp- tion or an allotment in property other than that set apart shall be demanded, the party demanding shall in his exceptions specify the property from which the increase or re-allotment is to be had. If the ajDjjraisal or assessment shall be reduced, tlie jury shall assess the value of the property embraced therein ; if increased, the valne of the property specified in the objections from which the increase; is demanded shall also be assessed ; but if the allotment shall be made in property other than that first set apart, the jury shall assess the value of the property so allotted. The court shall appoint three dis- interested commissioners to lay off and set apart the homestead and personal property exemption in accordance with the verdict of the jury and the judgment of the court, and in the manner prescribed by law. The commissioners, who shall be smnmoned by the sheriff, shall meet upon the premises and after being sworn by the sheriff or a justice of the peace to faithfully perform the duties of apprais- ers or assessors (as the case may be) in allotting and laying off the homestead or personal property exemption, or both (as the case may be), in accordance with the verdict and judgment aforesaid, allot and lay oft' the same and file their report to the next term of the court, when the same shall be heard by the court upon exceptions thereto. 188."), c. 347. 701. Undertaking of objector. The creditor, debtor, or claim- ant objecting to the allotment made by the ap]iraisers or assessors (as the case may be) under execution or petition, shall file with the clerk of the superior court an undertaking in the sum of one lum- dred dollars for the ])ayment to the adverse ]iarty of sucli costs as shall be adjudged against him. Code, s. 522. 702. Set aside for fraud, complicity or irregularity. Any ap- ])raisi)l or allotment by appraisers or assessors, liereinbcfore pro- 702 CIVIL PEOGEDURE— XXX7. Property Exempt. Ch. 12 vided, may be set aside for fraud, complicity or other irregularity ; but whenever any allotment or assessment shall be made or eon- firmed by the superior court at term time, as hereinbefore provided, the said homestead shall not thereafter be set aside or again laid off by any other creditor except for increase in value. Code, s. 523. 703. Return registered; original or copy evidence. When the homestead and personal property exemiDtion shall be decided by the court at term time the clerk of the superior court shall immediately file with the register of deeds of the county a copy of the same, which copy shall be registered as deeds are now registered by law; and in all judicial proceedings the original or a certified copy of said return may be introduced in evidence. Code, s. 524. 704. Allotted upon petition of owner. Whenever any resident of this state may desire to take tbe benefit of the homestead ajid personal proj)erty exemption as guaranteed by article ten of the con- stitution of this state, or by this chapter, such resident, his agent or attorney, shall apply to any justice of the peace of the county in which he resides, and said -justice of the peace shall appoint as assessors three disinterested persons, qualified to act as jurors, resid- ing in said county, who shall, on notice by order of said justice, meet at the applicant's residence, and, after taking the oath pre- scribed for appraisers before some officer authorized to administer an oath, lay off and allot to the applicant a homestead with metes and bounds, according to the applicant's direction, not to exceed one thousand dollars in value, and make and sigTi a descriptive account of the same and return it to the office of the register of deeds. Code, s. 511; 1868-9, c. 137, s. 7. 705. Advertisement of petition; time of hearing. When any per- son entitled to a homestead and personal property exemption shall file his or her petition before a justice of the peace to have the same laid off and set apart under the preceding sections, the said justice shall make advertisement in some newspaper published in the county, if there be one, for six successive weeks, and if there be no newspaper in the county, then at the courthouse door of the county in which the petition is filed, notifying all creditors of said applicant of the time and place, when and where the said petition will be heard ; and the same shall not be heard nor any decree made in the cause in less than six months nor more than twelve months from the day of making advertisement as above required. Code, s. 515; 1868-9, c. 137, s. 11. 706 CIVIL PEOCEDUEE— XZZZ. Property Exempt. Ch. 12 706. Exceptions, when allotted on petition. When the homestead or personal property exemption is made or allotted on the petition of the person entitled thereto, any creditor may, within six months from the time of said assessment or appraisal, and upon ten days' notice to the petitioner, file his objections with the register of deeds of the county in which the premises are situated, and the register of deeds shall return the same to the clerk of the superior court of said county, who shall place the same on the civil issue docket, and the same shall be tried as provided in section six hundred and ninety- nine for homestead and personal property exemptions set ofl' under execution. Code, s. 520. 707. Allotted after death of homesteader. If any person enti- tled to a homestead exemption die without such homestead having been set apart, his widow, if he leave no children, or his child or children under the age of twenty-one years, if he leave such, may pijDceed to have said homestead exemption laid off by petition, and if such widow, child or children, being entitled to a homestead exemp- tion as aforesaid, shall have failed to have the same .set apart in the manner hereinbefore "jn-ovided, then and in such event, it shall ln' the duty in an action brought by the personal representative of such decedent to subject the realty of his testator or intestate to the pay- ment of debts and charges of administration, of the court to appoint three disinterested freeholders to set apart to such widow, child or children entitled to a homestead exemption as aforesaid a homestead exemption under metes and bounds in the lauds of such decedent, who shall under their bauds and seals make return of the same to the court, which shall be registered in the same manner as is now required by law for the registration of homestead exemptions. Code, s. 514; 1893, c. 332; 1868-9, c. 137, s. 10. 708. Liability of officer failing to allot. Any officer making a levy, who shall refuse or neglect to summon and qualify appraisers as heretofore provided, or who shall fail to make due return of his proceedings, or who shall levy upon the homestead set off by said appraisers or assessors (as the case may be), except as herein jn-o- vided, he and his sureties shall be liable to the owner of said home- stead for all costs and damages in a civil action. Code, s. 516; 1868-9, c. 3 37, s. 17. Note. For additional penalty making misdemeanor, see s. 3584. 709. Forms. The following forms shall be substantially followed in proceedings under this subchapter: 188 709 CIVIL PEGGED UEE—XZX J. Property Exempt. Gh. 12 [No. 1.] appraiser's return. When the homestead is valued at less than one thousatul dollars, ami personal property also appraised. The undersigned having been duly summoned and sworn to act as appraisers of the homestead and personal property exemption of A. B., of Township, County, by C. D., sheriff, (or constable or deputy) of said county, do hereby make the following return: We have viewed and appraised the homestead of the said A. B., and the dwellings and buildings thereon, owned and occupied by said A. B. as a homestead, to be one thousand dollars (or any less sum) and that the entire tract, bounded by the lands of and is therefore exempted from sale under execution according to law. At the same time and place we viewed and appraised at the values annexed the following articles of personal property, selected by said A. B. (here specify the articles and their value, to be selected by the debtor or his agent), which we declare to be a fair valuation, and that the said articles are exempt under said execution. We hereby certify that we are not related by blood or marriage to the judgment debtor or the judgment creditor in this execution, and have no interest, near or remote, in the above exemptions. Given under our hands and seals, this .... day of 19 ... . O. K (L. g.) L. M (L. S.) R. S (L. S.) The above return was made and subscribed in my presence, day and date above given. CD , (Sheriff or Constable). [No. 2.] Petition for homestead before a justice of the peace. Before , J. P. In the matter of A. B. . County. A. B. respectfully shows that he (she or they, as the case may be) is (or are) entitled to a homestead exempt from execution in certain real estate in said county, and bounded and described as follows: (Here describe the property). Tlie true value of which he (she or they, as the case may be) believes to be one thousand dollars, including the dwelling and buildings thereon. He (she or they) further shows that he (she or they, as the case may be) is (or are) entitled to a personal property exemption from execution, to the value of (here state the value) consisting of the following property: (Here specify.) He (she or they, as the case may be) therefore prays your worship to appoint three disinterested persons qualified to act as jurors, as assessors, to view the premises, allot and set apart to your petitioner his homestead and personal property exemption, and report according to law. [No. 3.] Form for appraisal of personal property exemption. The undersigned having been duly summoned and sworn to act as appraisers of the personal property of A. B., of Township, County, and to lay off the exemption given by law thereto, by C. D., sheriff 709 CIVIL PEOCEDURE— A"A'A7. Property Exempt. Ch. 12 (or other officer) of said county, do hereby make and subscribe the following return : We viewed and appraised at the values annexed the following articles of personal propertj' selected by the said A. B., to-wit : which we declare to be a fair valuation, and that said articles are exempt under said execution. We hereby certify, each for himself, that we are not related by blood or mar- riage to the judgment debtor or judgment creditor in this execution, and have no interest, near or remote, in the above exemptions. Given under our hands and seals, this day of 19. . . . O. K (L. S.) L. M (L. S.) R. S (L. S.) The above return was made and sub.seribed in my presence, day and date above given. CD { Sheriff or Constable ) . [Xo. 4.] Certificate of qualification to he endorsed on return by sheriff. The within named B. F.. G. H. and J. R. were summoned and qualified according to law, as appraisers of the exemption of the said A. Bi, under an execution in favor of X. Y., this .... day of 19 ... . CD (Sheriff). [No. 5.] Minute on execution doclcet. } X Y.. vs. A B.. Kxecution issued 19 ... . Homestead appraised and set off and return made 19. . . . Code, s. 524. XXXII. Special Proceedings. 710. This chapter applicable to. The provisions of this chapter on fivil procedure nre ;ipplical)le to special proceedings, except as otherwise provided. Code, s. 278. Note. See s. 348. 711. How commenced. Wlien sjjpcial proceedino-s are had against adverse parties, they shall he CDnimeiiced as is jirescribed for civil actions. Code, s. 287; 18G8-9, c. 9.3, s. 4. Note. See s. 718. 712. Summons in; what to contain. The snmnions in special proceedings sliall command tlie ollieer to snnimon the defendant to appear at the office of the clerk of tlie superior court on a day 190 712 CIVIL PROCEDURE— ZZX/Z. Special Proceedings. Ch. 12 named in the summons, to answer the complaint or petition of the plaintiff. The number of days within which the defendant is sum- moned to appear shall in no case be less than ten exclusive of the day of service. Code, s. 279. 713. Return of summons. The officer to whom the summons is addressed shall note on it the day of its delivery to him ; if required by the plaintiff, he shall execute the same immediately. When executed, he shall immediately return the summons with the date and manner of its execiition, by mail or otherwise, to the clerk of the court issuing it. Code, s. 280; C. C. P., s. 75. 714. Complaint filed, when. It shall be sufficient for the plain- tiff to file his complaint or petition with the clerk of the court, to which the summons is returnable, at the time of issuing the sum- mons,' or within ten days thereafter. Code, s. 281; C. C. P., s. 76; 1876-7, c. 241, s. 4. 715. Nonsuit for failure to file in time. If the plaintiff shall fail to file his complaint or petition within the time limited by the sum- mons for the appearance and answer of the defendant, the defend- ant shall be entitled to demand judgment of nonsuit against the plaintiff. Code, s. 282; C. C. P.. s. 78. 716. Time enlarged. The time for filing the complaint, petition, or any pleading whatever, may be enlarged by the court for good cause shown by affidavit, but it shall not be enlarged by more than ten additional days, nor more than once, unless the default shall have been occasioned by accident over which the party applying had no control, or by the fraud of the opposing party. Code, s. 283; C. C. P., s. 79. 717. Equitable defenses pleaded; transferred to civil issue docket; amendments, in special proceedings which have been, or may hereafter be begun, it shall be competent for any defendant or other party thereto to plead any equitable or other defense, or ask any equitable or other relief in the pleadings which it would be competent to ask in a civil action ; and when such pleas are filed the clerk shall transfer the cause to the civil issue docket for trial during term upon all issues raised by the pleadings. It shall be competent for the trial judge to allow amendments to the pleadings and inter- pleas in behalf of any person claiming an interest in the property with a view to substantial justice between the parties. 1903, c. 566. 191 718 CIVIL PEOCEDUEE— A'ZA'Z/. Special Proceedings. Ch. 1-2 718. Ex parte; begun by petition, if all the parties in interest join in the proceeding and ask the same relief, the coiuniencement of the proceedings shall be by jjetition, setting forth the facts entitling the petitioners to relief, and the nature of the relief demanded. Code, 3. 284; 1S08-9, c. 93. 719. Clerk hears summarily; attorney must file authority from nonresident, in such cases, if all persons to be affected by the decree, or their attorney, shall have signed the petition, and they be of full age, the clerk of the superior court shall have power to hear the petition siimmarily, and to decide the same. If either or any of the petitioners shall be residing out of the state, an authority from him or them, to the attorney, in writing, must be filed with the clerk, before he shall make any order or decree to prejudice their rights. Code, s. 285; 1868-9, c. 93, s. 2. 720. Judge approves when infants are petitioners, if any of the petitioners be an infant, or the guardian of an infant, acting for him, no final order or judgment of the clerk, affecting the merits of the case, and capable of being prejudicial to the infant, shall be valid, imless submitted to and approved by the judge resident in the district or the judge holding court therein. Code, s. 286; 1887, c. 61; C. C. P., s. 420; 1868-9, c. 93, s. 3. Note. For what judge to approve, see s. 571. 721. Ex parte proceedings validated. Any ajiproval made prior to the tenth day of February, one thousand eight hundred and eighty-seven, of any sale of the land of any infant in any ex parte proceeding, wherein such infant has appeared by his or her guard- ian, by a judge of the district or a judge holding court therein, is hereby confirmed, as far as regards the jurisdiction of the judge approving such proceedings. 1887, c. 61, s. 2. 722. Orders signed by judge. Every order or judgment in a s]iecial proceeding, which is required to be made by a judge of the superior court, either in or out of term, shall be authenticated by his signature. Code, s. 288; 1868-9, c. 93, s. 5; 1872-3, c. 100. 723. Reports of commissioners and jurors; confirmed, when. Every order or jndgiiuiil in a spi'i'ial prucocding imposing any duty on commissioners or jurors shall prescribe the time within whiqji such duty shall be performed, except in cases where the time is pre- scribed by statute. The conunissioncrs or jurors shall within twenty 723 CIVIL PEOCEDURE— X.YZ//. Special ProceecUnfja. Ch. 12 days after the performance of such duty file their report with the clerk of the superior court ; and if no exception is filed to such report within twenty days, the court may proceed to confirm the same on motion of any party and without special notice to the other parties. 1893, c. 209. 724. No report set aside for trivial defect. No report or return made by any commissioners shall be set aside and sent back to them or others for a new report by reason of any defect or omission not affecting the substantial rights of the parties, but such defect or omis- sion may be amended by the court, or by the commissioners, by per- mission of the court. Code, s. 289; 1868-9, c. 93, s. 7. 725. Commissioners to sell to settle in sixty days, in all actions or special proceedings when any person shall be appointed commis- sioner to sell any real or jjersonal property, he shall, within si.xty days after the maturity of the note or bond for the balance of the purchase money of said real or personal property, or the payment of the amount of the bid, when the sale is for cash, file with the clevk of the superior court a final account of his receipts and disbursements on account of said sale ; and the clerk shall audit said account and record it in the book in which the final settlements of executors and administrators are recorded. 1901, c. 614, ss. 1, 2. XXXIII. Aebest and Bail. 726. Arrested only as herein prescribed. X^o person shall be arrested in a civil action, except as prescribed by this chapter ; but this provision shall not apply to proceedings for contempt. Code, s. 290; C. C. P., s. 148. 727. In what cases. The defendant may be arrested, as herein- after prescribed, in the following cases: 1. In an action for the recovery of damages, on a cause of action not arising out of contract, where the defendant is not a resident of the state, or is aboiit to remove therefrom, or where the action is for an injury to person or character, or for injuring, or for wrong- fully taking, detaining or converting property real or personal. 2. In an action for a fine or ])enalty, or for seduction, or for money received, or for property embezzled or fraudulently misapplied by a public ofiicer, or by an attorney, solicitor or counsellor, or by an ofiicer or agent of a corporation or banking association, in the course of his employment as such, or by any factor, agent, broker or other Rev. Vol. I— 193 727 CIVIL PROCEDUEE— A'XA'Z//. Arrest and Bail. Ch. 12 person in a fiduciary capacity, or for any misconduct or neglect in office, or in a professional employment. . 3. In an action to recover the possession of personal property, unjustly detained, where the property, or any part thereof, has been concealed, removed or disposed of, so that it can not be found or taken by the slieriff, and with the intent that it should not be so found or taken, or with the intent to deprive the plaintiff of the benefit thereof. 4. When the defendant has been guilty of a fraud in contracting the debt, or incurring the obligation for which the action is brought, or in concealing or disposing of the property for the taking, deten- tion or conversion of which the action is brought, or when the action is brought to recover damages for fraud or deceit. 5. When the defendant has removed, or disposed of, his property, or is about to do so, with intent to defraud his creditors. But no woman shall be arrested in any action, except for a wilful injury to person, character or property ; and no person shall be arrested on Sunday. Code, s. 291; C. C. P., s. 149; 1869-70, c. 79; R. C, c. 31, s. 54; 1777, c. 118, s. G : 1891, c. 541. Note. For arrest and bail in usurping an office, see s. 831. 728. Who issues order. An order for the arrest of the defend- ant must be obtained from the court in which the action is brought or from a judge thereof. Code, s. 292; C. C. P., s. 150. 729. Order obtained on affidavit. The order may be made where it .sliall appear to the court or judge thereof, by the afiidavit of the plaintiff or of any other person that a suflicient cause of action exists, and that the case is one of those provided for in this sub- chapter. Code, s. 293; C. C. P., s. 151. 730. Undertal{ tlie inirtv arrested thereon, unless the aiueiidinent be to enlarge the sum demanded beyond the sum exjiressed in the bail bond. Code, s. 320; R. C, c. 11, s. 11. XXXIV. Attachment. 758. When issued. A warrant of attachment against the proji- erty of one or more defendants in an action, may be granted upon the application of the plaintiff, as specified in this chapter, when the action is to recover a sum of money only, or damages for one or more of the following causes : 1. Breach of contract, express or implied. 2. Wrongful conversion of personal ]n-o]3ertv. 3. Any other injttry to real or per.sonal property, in consequence of negligence, fraud, or other wrongful act. 4. Any injtiry to the person, catised by negligence or wrongful act. Code, s. 347; 1893, c. 77; 1901, c. 740; C. C. P., s. 197. 759. Affidavit must show what. To entitle the plaintiff to such a warrant he must show by affidavit to the satisfaction of the court granting the same as follows : 1. That one of the causes of action specified in the preceding section exists against the defendant. If the action is to recover damages for breach of contract, the defendant must show that the plaintiff is entitled to recover a sum stated therein, over and above all counterclaims known to him. 2. That the defendant is either a foreign corporation or not a resident of the state, or a domestic coriioration none of whose officers can be found in the state after due diligence ; or, if he is a natural person and a resident of the state, that he has dejiarted therefroin, with intent to defraud his creditors or to avoid service of sunuiunis, or keeps himself concealed therein with like intent; or, if the defend- ant is a natural person or a domestic corporation, that he or it has removed, or is about to remove, property from the state, with intent to defraud bis or its creditors; or has assigned, disposed of, or secreted, or is about to assign, dispose of, or secrete, property with the like intent. Code, s. .349: 1897, c. 476: C. C. P., s. 201. 760. Affidavits for attachment filed. It shall be the duty of the ])laiHlifl' ]ir(iruring a wan-iiiit af ;ill:iclinicnl. wilhiii ten days from the issuinu' ibercof, to tile the affidavits im which the same was 700 CIVIL PROCEDUEE— A'A'X/T\ Attachment. Cb. 12 granted in the office of the clerk of the superior court to which, or with the justice of the peace before whom the process is made returnable. Code, s. 355; C. C. P., s. 201. 761. By whom granted. If the action be not founded on a con- tract, or if f(.>unded ou a contract and the sum demanded exceed two hundred dollars, a warrant of attachment may be obtained from the judge of the district embracing the county in which the action has been instituted, or from the clerk of the superior court from which the siunmons in the action issued ; and it may be issued to any county in the state where the defendant has property, money, effects, choses iii action or debts due him, and shall be made return- able in term time to the court from which the siimmons issued. Code, s. 351; C. C. P., s. 199; 1869-70, c. U7 ; 1870-1, c. 166, as. 1, 3; 1874-5, e. Ill; 1876-7, c. 251. 762. Time of issuance; service of summons essential. The warrant of attachment may be granted to accompany the simimons, or at any time after the commencement of the action. Personal service of the sununons must be made upon the defendant against whose property the attachment is granted, within thirty days after the gTanting thereof, or else upon the expiration of the same time, service of sununons by publication must be commenced pursuant to an order obtained therefor, and if publication has been, or is there- after commenced, the service must be made complete by the con- tinuance thereof. Code, s. 348; C. C. P., s. 197. 763. Undertalon a uiilicc U> llu' ^ilaiiilill' of mil less than two or more than 212 796 CIVIL PEOCEDURE— XXXT\ Claim and Deliv. Ch. 12 six days, shall justify before the court, a judge or justice of the peace, in the same manner as upon bail on arrest; upon such justification, the sherili" shall deliver the property to the defendant. The sheritt" shall be responsible for the defendant's sureties, until they justify, or until justification is completed or expressly waived, and may retain the property until that time; but if they, or others in tlieir place, fail to justify at the time and place appointed, he shall deliver the property to the i^laintiff. Code, s. 327 ; C. C. P., s. 182. 797. Qualification and justification of defendant's sureties, how. The qualification of the defendant's sureties, and their justifi- cation, shall be as prescribed in respect to bail upon an order of arrest. Code, s. 328; C. C. P., s. 183. 798. Property concealed in buildings. If the property, or any part thereof, be concealed in a building or enclosure, the sheriff shall publicly demand its delivery. If it be not delivered he shall cause the building or enclosure to be broken open, and take the property into his possession ; and, if necessary, he may call to his aid the power of his county, and if the property be upon the person the sheriff or other officer may seize the person, and search for and take the same. Code, s. 320; C. C. P., s. 184. 799. How property seized shall be kept. AVhen the sheriff shall have taken property, as in this subchapter jjrovided, he shall keep it in a secure place, and deliver it to the party entitled thereto, \ipon receiving his lawful fees for taking, and his necessary expenses for keeping the same. Code, s. 330; C. C. P., s. 185. 800. Property taken claimed by third person. When the prop- erty taken by the sheriff shall be claimed by any person other than the plaintiff' or the defendant the claimant may interplead upon his filing an affidavit of his title and right to the possession of the property, stating the grounds of such right and title ; and upon his delivering to the sheriff an undertaking in an amount doiable the value of the property specified in plaintifl"s affidavit, for the delivery of the property to the person entitled to the same, and for the pay- ment of all such costs and damages as may be awarded against him ; this undertaking to be executed by one or more sufficient sureties, accompanied by their affidavits that they are each worth double the value of the property. A copy of this undei'taking and accompanying affidavits shall be served by the sheriff on the plaintiff and defendant 800 CIVIL PEOCEDUEE— ZZXF. Claim a,id DeUv. Ch. 12 at least ten days before the return day of the summons in said action, when the court trying the same shall order a jury to be impaneled to enquire in whom is the right to the property specified in plaintitT's complaint; and the finding of the jury shall be conclusive as to the parties then in court, and the court shall adjudge accordingly, unless it is reversed upon appeal: Provided, that in a court of a justice of the peace he may try such issue unless a jury be demanded, and then proceedings are to be conducted in all respects as in jury trials before courts of justices of the peace. Code, s. 331; C. C. P., s. 180; 1793, c. 389, s. 3; E. C. c. 7, s. 10. 801. When sheriff may deliver property to intervener. Upon the filing by the claimant of the undertaking set forth in the preceding section, the sherifF shall not be bound to keep the property, or to deliver it to the plaintiff ; but may deliver it to the claimant, unless the plaintiff shall execute and deliver to him a similar \indertaking to that required of claimant; and notwithstanding such claim, when so made, the sheriff may retain the property a reasonable time to demand such indemnity. Code, s. 332; R. C, c. 7, s. 10; 1793, c. 389, s. 3. 802. Sheriff to return undertalclng, etc., in ten days. The sheriff shall return the undertaking, notice and affidavit with bis proceedings thereon to the court in which the action is pending within ten days after taking the property mentioned therein. Code, a. 133; C. C. P., s. 187. XXXVI. CONTEOVEESY WiTKOUT ACTION. 803. How submitted; affidavit; judgment. Parties to a question in difference wliich might be the subject of a civil action, may, with- out action, agree upon a case containing the facts upon which the controversy depends, and present a submission of the same to any court which would have jurisdiction if an action had been brought. But it must appear by affidavit that the controversy is real, and the proceedings in good faith to determine the rights of the parties. The judge shall thereupon hear and determine the case, and render judg- ment thereon as if an action were pending. Code, s. 567; C. C. P., s. 315. 804. Judgment roll. Judg-ment .shall be entered on the judgiiicnt docket, as in otlier cases, but without costs for any proceeding prior to trial. The case, the submission, and a copy of the judgment, .shall constitute the judgment roll. Code, 8. 568; C. C. P., s. 316. 805 CIVIL PROCEDUKE— ZZZ77. Con. without Ad. Ch. 12 805. Judgment enforced; appealed from. The judgment may be enforced in the same manner as if it had been rendered in an action, and shall be subject to appeal in like manner. Code, s. 569; C. C. P., a. 317. XXXVII. Injunction. 806. Temporary, issued, when. The writ of injunction as a pro- visional remedy is abolished, and a temporary injunction by order is substituted therefor. The order may be made by any judge of a superior court in the following cases, and shall be issued by the clerk of the court in which the action is required to be tried: 1. When it shall appear by the complaint that the plaintiff is entitled to the relief demanded, and such relief, or any part thereof, consists in restraining the commission, or continuance of some act, the commission or continuance of which, during the litigation, would produce injury to the plaintiff; or, 2. When, during the litigation, it shall appear by affidavit that a party thereto is doing, or threatens, or is about to do, or is procur- ing or suffering some act to be done in violation of the rights of another party to the litigation respecting the subject of the action, and tending to render the judgment ineffectual ; or, 3. When, during the pendency of an action, it shall appear by affidavit of any jserson, that the defendant threatens, or is about to remove or dispose of his property, with intent to defraud the plaintiff. Code, ss. 334, 338; C. C. P., ss. 188, 189. 807. Solvent defendant restrained from cutting trees. In an application for an injunction to enjoin a trespass on land it shall not be necessary to allege the insolvency of the defendant when the trespass complained of is continuous in its nature, or is the cut- ting or destruction of timber trees. ISSf), e. 401. 808. Timber lands, trial of title to. In all actions to try title to timber lands and in all actions for trespass thereon for ciitting timber trees, whenever the court shall find as a fact that there is a bona fide contention on both sides based ui^on evidence constituting a prima facie title, no order shall be made pending such action, per- mitting either party to cut said timber trees, except by consent, until the title to said land or timber trees shall be finally determined in such action : Provided, that in all cases where the title to any timber or tree, or the right to cut and remove the same during a term of years, is claimed by any party to such action, and the fee of the soil or other estate in the land by another or others, whether party to the 808 CIVIL PROCEDUEE— A'A'A'17/. Injiuu-llon. Cli. 1l> action or not, the time witluu which sucli timber or trees may be cut or removed by the party claiming the same, and all other rights acquired in connection therewith, shall not be affected or abridged, but the running of the term shall be susjiended during the pendency of such action. 1901, c. 660, s. 1 ; 1903, c. 642. 809. When timber may be cut. Whenever in any such action the judge shall find as a fact that the contention of either f)arty thereto is not in good faith and is not based \ipon evidence consti- tuting a f)rima facie title, then upon motion of the other party thereto, who may satisfy the court of the bona fides of his contention and who may produce evidence showing a prima facie title, the court may allow such party to cut the said timber trees by giving bond as now required by law. Nothing in this section shall affect the right of appeal as now allowed by law, and whenever any party to such action may be enjoined, a sufficient bond shall be required to cover all damages that may accrue to the party enjoined by rea- son of the injunction as now required .by law. 1901, e. 606, ss. 2. 3. 810. Time of issuing; copy of affidavit served. The injunetidu ■may be granted at the time of commencing the action, or at any tinii' afterwards, before judgment, upon its appearing satisfactorily lo the judge, by the affidavit of the plaintiff, or of any other ])erson. that suificient gTounds exist therefor. A copy of the affidavit must be served with the injunction. Code, s. 339; C. C. P., s. 190. 811. Not issued for more than twenty days without notice: con- tinues until dissolved. Xo restraining i.nier, or (inlcr to stay pro- ccciliiigs for a longer time than twenty days, shall be granted by a jtidge out of court, except upon due notice to tiie adverse ])arty; but the said order shall continue and remain in force until vacated after notice, to be fixed by the court, of not less than two nor more tlnin ten days. Code, s. 346; C. C. P., s. 345; 1905. c. 20. 812. Issued after answer, only on notice. An injunction shall not be allowed after the defendiint shall June answered, unless n])on notice, or upon an order to sliow cause ; but in such ca.se the defend- ant may lie restrained until the decision of the jmlge granting or refusing tiie injunclion. Coflc, s. .340; C. C. P., s. 191. Note. For statute reguUitiii^f iiofi<'c. 210 M;3 civil PROCEDURE— A'A'AT/Z. 7Hiw.nc//on. Ch. 12 813. Order to show cause; restraint in meantime. If the judge deem it pruper that the defendant, ov au}- of several defendauts, sliould be heard before grautiug the injimction, an order may be made requiring cause to be shown, at a specified time and place, why the injunction should not be granted ; and tlie defendant may, in the meantime, be restrained. Code, s. 342; C. C. P., s. 193. 814. What judges have jurisdiction. The judges of the superior court shall have jurisdiction to grant injunctions and issue restraining orders in all civil actions and proceedings which are authorized by law: Provided, that a jvidge holding a sijecial term in any county may grant an injunction, or issue a restraining order, returnable before himself, in any case which he may have jurisdiction to hear and determine under the commission issued to him, and the same shall be returnable as directed by the judge in the order. Code, s. 335; 1876-7, c. 223, ss. 1, 2; 1879, c. 63, ss. 1, 3. 815. Before what judge returnable. All restraining orders and injvmctions gTanted by any of the judges of the superior court, except a judge holding a special term in any county, shall be made return- able before the resident judge of the district, or the judge assigoied to the district, or holding b}' exchange the courts of the district where the civil action or sjDecial proceeding is depending, within twenty days from date of order. And if the judge before whom the same is returned shall, from sickness, inability, or from any cause, fail to hear said motion and application, or to continue the same to some other time and place, then it shall be competent for any judge resident in some adjoining district, or a judge assigned to hold the court of some adjoining district, or the judge holding by exchange the court of some adjoining district, to hear and determine the said motion and apjilication, after giving ten days' notice to the parties interested in the application or motion, upon its being satisfactorily shown to him by aifldavit or otherwise that the judge before whom the same vvas returnable failed to act upon the same, or to continue the same to some other time and place. The effect of such removal shall be to continue in force the motion and application theretofore granted, till the same can be heard and determined by the judge having jurisdiction of the same. Code, s. 336; 1876, e. 223, s. 2; 1879. c. 63, ss. 2, 3; 1881, c. 51. 816. Stipulation as to judge to hear. By a stipulation in writ- ing, signed by all the parties to an application for an injimction order, or their attorney, to the effect that the matter may be heard before any judge, to be designated in such stipulation, the judge 816 CIVIL PrLOCEDURE— A'A'A'17/. Injuncfhn. Ch. 12 before wlioin the restraining order is returnable by law, or who is by law the judge to hear the motion for an injunction order, shall, upon receijDt of such stipulation forward the same and all the papers to the judge designated in the stipulation, whose duty it shall there- upon be to hear and decide the matter, and return all the papers to the court out of which they issued, the necessary postage or expressage money to be furnislied to the judge. Code, s. 337; 1883, c. 33. 817. Undertaking, Upon granting a restraining order or an order for an injunction, the judge shall require as a condition precedent to the issuing thereof that the clerk shall take from the plaintiff a written undertaking, with sufficient sureties, to be justified before, and approved by, the said clerk, or by the judge, in an amount to be fixed by the judge, to the effect that the plaintiff will pay to the party enjoined such damages, not exceeding an amount to be specified, as he may sustain by reason of the injunction, if the court shall finally decide that the plaintiff was not entitled thereto. Code, s. 341; C. C. P., s. 192. 818. Damages. A judgment dissolving an injunction shall carry with it judgment for damages against the party procuring the injunc- tion and the sureties on his undertaking without the requirement of malice or want of probable cause in procuring the injunction, which damages may be ascertained by a reference or otherwise, as the judge shall direct, and the decision of the court thereupon shall be conclusive as to the amount of damages upon all the persons who have an interest in the imdertaking. Code, s. 341; 1893, c. 251. 819. Issued without notice, vacated when; verified answer an affidavit. If the injunction be granted witliout notice, the defendant, at any time before the trial, may apply, upon notice to be fixed by the court of not less than two nor more than ten days, to the judge having jurisdiction thereof, to vacate or modify the same, if he is within the district or in an adjoining district, but if out of the district and not in an adjoining district, then before any judge at the time being in the district, and if tliere be no judge in the district, before any judge in an adjoining district. The application may be made upon the com- plaint and the affidavits on whicli the injunction was granted, or upon the affidavits on tlie part of the defendant, with or without answer; but if no STU'li application bo made, the injunction shall continue, and be in force until such ap])]ication sliall be made and determined by the judge, and a verified answer has the effect only of an affidavit. Code, s. 344; C. C. P.. s. 105; 1005, c. 26. . Si!0 CIVIL PEOCEDUEE— ZZZF/Z. Injunction. Ch. 12 820. Opposing affidavits. If the application be made upon affi- davits on the part of the defendant, but not otherwise, the plaintiif may oppose the same by affidavits or other proof, in addition to those on which the injunction was granted. Code, s. 345; C. C. P., s. 196. 821. Wlien granted to restrain collection of taxes. Xo injunc- lion shall be granted by any court or judge to restrain the collection (if any tax or any part thereof, nor to restrain the sale of any property for the nonpayment of any such tax, except such tax or the part thereof enjoined be levied or assessed for an illegal or unauthorized purpose or be illegal or invalid, or the assessment be illegal or invalid. 1901, c. 558, s. 30; 1899, e. 15, s. 78; 1887, c. 137, s. 84. Note. For action to recover illegal taxes paid, see s. 2855. For injunction pending appeal from Corporation Commission, see s. 1080. XXXVIII. Mandamus. 822. Begun by summons and verified complaint. All applica- tions for writs of mandamus shall be made by summons and com- plaint, and the complaint shall be duly verified. Code, s. G22; 1871-2, c. 75. 823. Money demand enforced at term. In all such applications, when the jjlaintiff seeks to enforce a money demand, the summons, pleadings and practice shall be the same as is prescribed for civil actions. Code, s. 623; 1871-2, c. 75, s. 2. 824. Other actions returnable in vacation; issues of fact. When the plaintiff yeeks relief otlior than the enforeeinent of a money demand, the smumons shall be made returnable before a judge of the ■superior court at chambers, or in term at a day specified in the sum- mons, not less than ten days after the service of the summons and complaint upon the defendant; at which time the court, except for good cause shown, shall proceed to hear and determine the action, both as to law and fact: Provided, that when an issue of fact is raised by the pleading, it shall be the duty of the court, u)wn the motion of either party, to continue the action until said issue of fact can be decided by a jury at the next regular term of the court. Code, s. 623; 1871-2. e. 75, s. 3. XXXIX. XUISANCE. 825. How remediable. Injuries remediable by the old writ of nuisance are subjects of action as other injuries; and in such action 219 825 CIVIL PKOCEDURE— A'XATA'. Nuisance. Ch. li' there may be judgineiit for damages, or for the removal of the nui- sance, or for both. Code, s. 630; C. C. P., s. 387. XL. Quo "Warranto. 826. Writs of sci. fa. and quo warranto abolished. The writ of scire facias, the writ of qno warranto, and proceedings by informa- tion in the nature of quo warranto, arc abolished ; and the remedies obtainable in those forms may be obtained by civil actions under this subchapter. Code, s. 603; C. C. P., s. 362; R. C, c. 26, ss. 5, 25. 827. Action by attorney general upon usurpation or forfeiture of office. An action may be brought by the attorney general in the name of the state, upon his own information, or upon the complaint of any private party, against the parties offending, in the following cases : 1. When any person shall usurp, intrude into, or unlawfully hold or exercise any public office, civil or military, or any franchise within this state, or any office in a corporation created by the authority of this state; or, 2. When any public officer, civil or military, shall have done or suffered an act which, by law, shall make a forfeittire of his office. Code, s. 607; C. C. P., s. 366. Note. For right of attorney general to institute actions for the forfeiture of corporate charters and the like, see s. 1198. For right to institute action to forfeit grants, see s. 1750. 828. Leave granted by attorney general to private person, when. When application shall be made to the attorney general by a ]irivate relator to bring such an action, he shall grant the leave that the same may be brought in the name of the state, upon the relation of such applicant, iipou such applicant tendering to the attorney general satisfactory security to indenmify the state against all costs and expenses which may accrue in consequence of the bring- ing of such action. Code, s. 608; 1874-5, c. 76; ISSl, c. 3.30. Note, For costs in sucli arlion, sec s. 1261. For leave in actions r<'hiting to corporations, sec s, 11!)6. 829. Solvent sureties required. The attorney general, before giMiiting leax'e to a ])rivMt(' relator to bring a suit to try the title to an otliee, may I'cquire two sureties to tiie Iwmd required by law to l)e filed to indenmify the state against costs and expen.ses, and require such sureties to justify, and may require such ]iroof and evidence of the solvency of said sureties as may be satisfactory to him. 11)01, e. 595, s. 2, 22(1 s;;o CIVIL PROCEDURE— XL. Quo Wairanlo. Ch. 12 830. Leave withdrawn, action dismissed, bond insufficient. ^\'llen the attorney general shall have "ranted leave to a ]iri\ate rela- tor to bring an action in the name of the state to try the title to an • iliice, and it shall afterwards be shown to the satisfaction of the attorney general that the bond filed by such private relator is insufR- i-ient, or that the securities thereto are insolvent, the attorney general may recall and revoke such leave theretofore granted, and upon a • ertiiicate of the withdrawal and revocation by the attorney general 111 the clerk of the court of the county where any such action is I lending, it shall be the duty of the judge presiding, upon motion lit' the defendant, to dismiss the action. 1891, c. 59.5. 831. Arrest and bail of defendant usurping office. Whenever such action shall be brought against a person for usurping an office, the attorney general, in addition to the statement of the cause of action, may also set forth in the complaint the name of the person rightfully entitled to the office, with a statement of his right thereto ; and in such case, upon proof by affidavit that the defendant has received fees or emoluments belonging to the office, and by means of his usurpation thereof, an order shall be gTanted by a judge of the' superior court for the arrest of such defendant, and holding him to bail; and thereupon he shall be arrested and held to bail in the man- ner, and with the same effect, and subject to the same rights and liabilities, as in other civil actions where the defendant is subject to arrest. Code,s. 609; C. C. P., s. 369: 18S.3, c. 102. 832. Claim of several persons to office tried in one action. Where several persons claim to be entitled to the same office or fran- chise, one action miay be brought against all such persons, in order to try their respective rights to such office or franchise. Code, s. 614; C. C. P., s. 374. 833. Trials expedited. All actions to try the title or right to any office, state, _county or municipal, shall stand for trial at the return term of the summons, if a copy of the complaint shall have been served with the sununons, at least thirty days before the return day thereof; and it shall be the duty of the judges to expedite the trial of such actions, and to give them precedence over all other actions, civil or criminal. But it shall be unlawful to appropriate any piiblic funds to the payment of counsel fees in any such action. Code, s. 616; 1901, c. 42; 1874-.5, c. 173. 834. Action brought within ninety days after induction into office. All actiiins liriniglil by a ])rivate rchitdv, ujiiiu the leave nf 83-i CIVIL PROCEDUEE— XL. Quo ^Varranto. Ch. 12 the attorney general, to try the title to an office shall be brought, and a copy of the complaint served on the defendant, within ninety days after the induction of the defendant into the office to which the title is sought to be tried ; and when it shall appear from the papers in the cause, or otherwise be shown to the satisfaction of the court that the sunuuons and complaint have not been served within ninety days, it shall be the duty of the judge upon motion of defendant to dismiss the action at any time before the trial at the cost of the plaintiff. 1901, c. 519; 1903, c. 556. 835. Defendant's undertaking before answer. Before the de- fendant is pennitted to answer or demur to the complaint he shall execute and file in the superior court clerk's office of the county wherein the suit is pending, an undertaking, with good and suffi- cient surety, in the sum of two hundred dollars, wliich nuiy be increased from time to time, in the discretion of the judge, to be void upon condition that the defendant shall pay to the plaintiff all such costs and damages, inchiding damages for the loss of such fees and emoluments as may or ought to have come into the hands of the defendant, as the plaintiff may recover. 1895, c. 105. 836. Possession of office not disturbed pending fiearing. In any civil action pending in any of the courts of this state wherein the title to any office is involved, the defendant being in the ]iossession of said office and discharging the duties thereof, shall continue therein pending such action, and no judge shall make any restraining order interfering with or enjoining such officer in the premises ; and such officer shall, notwithstanding any such order, continue to exercise the duties of such office pending such litigation, and receive the emoluments thereof. 1899, c. 33. 837. Judgment by default and inquiry for failure of defendant to give bond. At any time after a duly verified complaint is filed alleging facts sufficient to entitle plaintiff to the office, whether such complaint is filed at the beginning of the action or later, the plain- tiff may, upon ten days' notice to the defendant or his attorney of record, move before the resident judge or the judge riding the district at chambers, to require the defendant to give said undertaking; and it .shall be the duty of the judge to require the defendant to give such undertaking within ten days, and if the undertaking shall not be so given, the judge shall render judgment in favor of plaintiff and against defendant for the i-ecovcry of the office and the costs, and a 837 CIVIL PKOCEDURE— XL. Quo Warranio. Ch. 12 judgment by default and inquiry to be executed at term fur damages, including loss of fees and salary. Upon the filing of said judgment for the recovery of such office with the clerk, it shall be the duty of the clerk to issue and the sheriff to serve the necessary process to put plaintifl^ into possession of the office. In case defendant shall give the undertaking, the court, if judgment is rendered for plain- tiff, shall render judgment against the defendant and his sureties for costs and damages, including loss of fees and salary : Provided, that nothing herein shall prevent the judge's extending, for cause, the time in which to give the undertaking. 1899, c. 49; 1895, e. 105, s. 2. 838. Service of summons and complaint. The service of the summons and complaint as hereinbefore provided may be made by leaving a copy thereof at the last residence or business office of the defendant or defendants, and the same shall be held and deemed a legal service of the said summons and complaint. 1899, c. 126. 839. Judgment in such actions. In every such case judgment shall be rendered upon the right of the defendant, and also upon the right of the party so alleged to be entitled, or only upon the right of the defendant, as justice shall require. Code, s. 610; C. C. P., s. 370. 840. Judgment for usurping office or franchise; fine. When the defendant, whether a natural person or a corporation, against whom such action shall have been brought, shall be adjudged giiilty of usurping or intruding into, or unlawfully holding or exercising any office, franchise or privilege, judgment shall be rendered that such defendant be excluded from such office, franchise or privilege, and also that the plaintiff recover costs against such defendant. The court may also, in its discretion, fine such defendant a sum not exceeding two thousand dollars. Code, s. 615; R. C, c. 95; C. C. P., s. 375; Const., Art. IX, s. 5. 841. Mandamus to aid relator, when. Whenever in any civil action brought to try the title or right to hold any office, the judg- ment of the court shall be in favor of the relator in such action, it shall be the duty of the court to issue a writ of mandamus or such other process as may be necessary and proper to carry such judg- ment into effect, and to induct the party so entitled into such office. 1885, e. 400, .s. 1. 842. On appeal, occupant of office to give bond for fees. Xo appeal by the defendant from the judgment of the superior court in 842 CIVIL PEOCEDURE— A'L. Quo Wananio. Cli. 12 such action to the supreme court shall stay the execution of the judg- ment, unless a justitied undertaking be executed on the part of the appellant by one or more sureties, in a sum to be fixed by the court, conditioned that the appellant will pay to the party entitled to the same the salary, fees, emoluments and all moneys whatsoever received by such ajipellant by virtue or under color of his said otfice: Pro- vided, that in no event shall said judgment be executed pending said appeal, unless a justified undertaking be executed on the part of the appellee by one or more persons in a sum to be fixed by the court, conditioned that the appellee will pay to the party entitled to the same the salary, fees, emoluments and all moneys whatsoever received by the appellee by virtue or under color of his said office during his occupancy thereof. ISSo. c. 400, s. i. 843. Relator inducted into office, when. If the judgnnent be rendered upon the right of the person so alleged to be entitled, and the same be in favor of such person, he shall be entitled, after taking the oath of office, and executing such official bond as may be required by law, to take upon himself the execution of the office ; and it shall be his duty, immediatelj- thereafter, to demand of the defendant in the action all the books and papers in his custody, or within his power, belonging to the office from which he shall have been excluded. Code, s. 611; C. C. P., s. 371. 844. Damages by usurpation recovered. If judgment be ren- dered upciU tiic right of the person S(i alleged to be entitled, in favor of such person, he may recover by action the damages which ho shall have sustained by reason of the usui'pation by the defendant nf the office from which such defendant has been exchided. Code, s. 613; C. C. P., s. 373. 845. Action to recover forfeited property for state. Whenever any |iroperty, real or persmuil, shall be fdrfeited \o flie state, or to any officer for its use, an action for the recovery of such property, alleging the grounds of the forfeiture, may be brought by the proper officer in any superior court. Code, s. 621; C. C. P., s. 381. XLI. Receivers. 846. What judge appoints. Any judge of the sujierior court lia\ing authority to gi'anl. rc.-lraining orders and injuncticuis shall have the like jurisdiction in a])])i>inting receivers, and all motions to shf)W cause shall be retnrnalile as is provided for injunctions. Code. s. 370; C. C. P., s. 21.'>; I870-7, o, 223; 1870, p. 63; 1881, c. 51. 224 stT CIVIL PROCEDURE— ZLZ. Receivers. Ch. 12 847. In what cases appointed. A receiver may be ap])ointed — 1. Before jiulgnieiit, on the application of either party, when he establishes an apparent right to property which is the subject of the action, and which is in the possession of an adverse party, and the jirciperty or its rents and profits are in danger of being lost, or materially injured or impaired ; except in cases where judgment upon failure to answer may be had on application to the court. 2. After judgment, to carry the judgment into effect. 3. After judgment, to dispose of the j^roperty according to the judgment, or to preserve it during the pendency of an appeal, or when an execution has been returned unsatisfied, and the judgment debtor refuses to apply his property in satisfaction of the judgment. 4. In cases provided in chapter entitled Corporations and sub- chapter thereof entitled Receivers; and in like cases, of the property within this state of foreign corporations. The subchapter entitled Receivers, in the chapter entitled Corpor- ations, shall be applicable, as near as may be, to receivers appointed hereunder. Code, s. 379; C. C. P., s. 215; 1876-7, c. 223; 1879, c. 63; 1881, c. 51. Note. For appointment of receivers in proceedings supplemental to execution, see subchapter infra Supplemental Proceedings, s. 679. 848. Appointment refused, bond being given, when, in all eases where there is an application for the ap])iiintment of a receiver, upon the ground that the property or its rents and profits are in danger of being lost, or materially injured or impaired, or that a corporation defendant is insolvent or in inuninent danger of insolvency, and the subject of the action is the recovery of a money demand, the judge before whom such application is made or pending shall have the dis- cretionary power to refuse the appointment of a receiver, if the party against whom such relief is asked, whether a person, partnership or corporation, shall tender to the court an undertaking payable to the adverse party in an amount double the sum demanded by the plain- tiff, with at least two sufficient sureties and duly justified according to law, conditioned for the payment of such amount as may be recov- ered in such action, and siuumary judgment may be taken ujjou said undertaking. In the progTess of the action the court shall have power in its discretion to require additional sureties on such undertaking. 1885, c. 94. 849. Receiver's bond. A receiver appointed in an action or special proceeding must, before entering upon his duties, execute and file with the clerk of the court wherein the action is pending, an undertaking payable to the adverse ]iarty with at least two sutficient sureties in a penalty fixed by the judge making the appointment, conditioned for the faithful discharge of his duties as roceiver. And Rev. Vol. I— 11 225 849 CIVIL PEOCEDURE— A'L/. Eeceivers. C'li. li' the judge having jurisdiction thereof may at any time remove tlie receiver, or direct him to give a new undertaking, with new siiretic?-. with the like condition. But this section does not apply to a case where special provision is made by law for the security to be given by a receiver, nor for increasing the same, nor for removing a receiver. Code, s. 3S3. Note. For giving bond in surety companies, see ss. 272, 273. XLII. Tkust Fdxds Summarily Pkotected. 850. Trust funds ordered paid into court. AVhcn it is admitted by the pleading or examination of a party that he has in his posses- sion, or under his control, any monej' or other thing capable of delivery, which, being the subject of the litigation, is held by him as trustee for another party, or which belongs or is dtie to another party, the judge may order the same to be deposited in court, or delivered to such party, with or without security, subject to the fur- ther direction of the judge. Code, s. 380; C. C. P., s. 215. 851. Trust funds, etc., ordered seized by sheriff, when. When- ever, in the exercise of his authority, a judge shall have ordered the deposit, delivery or conveyance of money or other property, and the order is disobej^ed, the judge, besides punishing the disobedience as for contempt, may make an order reqiiiring the sheriff to take the money or property, and deposit, deliver, or convey it, in conformity with the direction of the judge. Code, s. 381; 0. C. P., s. 215. 852. Defendant ordered to satisfy sum admitted to be due. When the answer of the defendant expressly, or by not denying, admits part of the plaintiff's claim to be just, the judge, on motion, may order such defendant to satisfy that part of the claim, and may enforce the order as it enforces a judgment or provisional remedy. Code, s. 382; C. C. P., s. 215. XLIII. Waste. 853. How remediable. Wrongs, remediable by tlic nld ;icii(iii ,if waste, are subjects of action as other wrongs; and the judgment may be for damages, forfeiture of the estate of the party offending, and eviction from the premises. Code, s. 624; C. C. P., s. 383. s,-,i CIVIL PROCEDUEE— XL///. Waste. Ch. 12 854. For and against whom lies. In all cases of waste, an action shall lie in the superior court at the instance of him in whom the right is, against all persons committing the same, as well tenant for term of life as tenant for term of years and guardians. Code, s. 625; R. C, c. 116, s. 1; 52 Hen. III., c. 23; 6 Edw. I., c. 5; 20 Edw. I., St. 2; 11 Hen. VI., c. 5. 855. Tenant in possession of particular estate liable. Where tenant for life or years grants his estate to another, and still con- tinues in the possession of the lands, tenements, or hereditaments, an action shall lie against the said tenant for life or years. Code, s. 620; R. C, e. 116, s. 2; 11 Hen. VI., c. 5. 856. Action by tenant against cotenant. Where a joint tenant or a tenant in common commits waste, an action shall lie against him at the instance of his cotenant.xDn joint tenant. Code, s. 627; R. C, c. 116, s. 4 ; 1^ iEtiw. I., c. 22. 857. Heirs may sue, when. %Y§ij heir shall have his action for waste committed on lands, tenements, or hereditaments of his owti inheritance, as well in the time of his ancestor as in his own. Code, s. 628; R. C, c. 110, s. 5; 6 Edw. I., c. 5; 11 Hen. VI., c. 5 ; 20 Edw. I., St. 2. 858. Judgment for treble damages and possession. In all cases of waste, when judgment shall be against the defendant, the court may give judgment for thrice the amount of the damages asses.sed by the jury, and also that the plaintiff recover the place wasted, if the said damages shall not be paid on or before a day to be named in the judgment. Code, s. 029; R. C, c. 116, s. 3; 6 Edw. I., c. 5; 20 Edw. I., st. 2. XLIV. COMPEOMISE. 859. Effect of compromise. In all claims,, or money demands, of whatever kind, and howsoever due, where an agreement shall have been or shall be made and accepted for a less amount than that demanded or claimed to be due, in satisfaction thereof, the payment of such less amount according to any such agreement in compromise of the whole, shall be a full and complete discharge of the same. Code, s. 574; 1874-5, e. 178. 860. Tender judgment; effect of refusal to accept. The defend- ant, at any time before the trial or verdict, may serve upon the plain- tiff an offer in writing to allow judgment to be taken against him for the siun or property, or to the effect therein specified, with costs. If the plaintiff accept the oft'er, and give notice thereof in writing within 227 860 CIVIL PROCEDUEE— A'LZF. Compromise. Cb. 12 ten days, he may file the summons, complaint, and offer, with an alKdavit of notice of acceptance, and the clerk must thereupon enter judgment accordingly. If the notice of acceptance be not given, the offer is to be deemed withdrawn, and can not be given in evidence : and if the plaintiff' fail to obtain a more favorable judgment he can not recover costs, but must pay the defendant's costs from the time of the offer. In case the defendant shall set up a counterclaim in his answer to an amount greater than the plaintiff's claim, or sufficient to reduce the plaintiff"s recovery below fifty dollars, then the plaintiff may serve upon the defendant an offer in writing, to allow judginent to be taken against him for the amount specified, or to allow said counterclaim to the amount specified with costs. If the defendant accept the offer, and give notice thereof in writing within ten days, he may enter judgment as above for the amount specified, if the offer entitle him to judgment, or if the amount specified in said offer shall be allowed him in the trial of the action. If the notice of acceptance be not given, the offer is to be deemed with- dra\\Ti, and can not be given in evidence; and if the defendant fail to recover a more favorable judgment, or to establish his counter- claim for a greater amoimt than is specified in said offer, he can not recover costs, but must pay the plaintiff's costs from the time of tlu' offer. Code, s. 573 ; C. C. P., s. 328. 861. Conditional tender of judgment for damages, in an action arising on contract, the defendant may, with his answer, serve upon the plaintiff' an oft'er in writing, that if he fails in his defense, the damages be assessed at a specified sum; and if the plaintiff' signify his acceptance thereof in writing, ten days before the trial, and on the trial have a verdict, the damages shall be assessed accordingly. Code, s. 575; C. C. P., s. 329. 862. Effect of refusal. If the plaintiff does not accejit the offer, he shall prove his damages, as if it had not been made, and shall not be permitted to give it in evidence. Jind if the damage? assessed in his favor shall not exceed the sum mentioned in the offer, the defendant shall recover his expenses incurred in consequence of any necessary preparation or defense in respect to the question of dam- ages. Such expense shall be ascertained at the trial. Code, s. 576; C. C. P., s. 330. 863. Disclaimer of title to trespass; tender of judgment. In actions of trespass u]i(in real estnte, wherein the defendant iji his answer shall disclaim to make any title or claim to the lands on which the trespass is by the complaint supposed to be done, and the trespass be by negligence or involuntary, the defendant shall be ]ior- 228 863 CIVIL PEOCEDUEE— ZL/T. Com^yromise. Ch. 12 mitted to make a disclaimer, and that the trespass was by negligence or involuntary, and a tender or offer of sulficient amends for such trespass ; whereupon, or upon some of them, the j^laintiff shall join issue, and if the issue be found for the defendant, or if the plaintiff shall be nonsuited, he shall be barred from the said action and all other suits concerning the same. Code, s. 577; R. C, c. 31, s. 79; 1715, c. 2, s. 7. XLV. Examination of Paeties. 864. Action for discovery abolished. No action to obtain dis- covery under oath, in aid of the prosecution or defense of another action, shall be allowed, nor shall any examination of a party be had, on behalf of the adverse party, except in the manner prescribed by this subchapter. Code, s. 579; C. C. P., s. 332. 865. Adverse party examined. A party to an action may be examined as a witness at the instance of the adverse party, or of any one of several adverse parties, and for that purpose may be compelled, in the same manner and subject to the same rules of examination as any other witness to testify, either at the trial or conditionally or upon commission. Code, s. 580; C. C. P., s. 333. 866. Before trial In his own county. The examination, instead of being had at the trial, as provided in the preceding section, may be had at any time before the trial, at the option of the party claim- ing it, before a judge, commissioner duly appointed to take deposi- tions, or clerk of the court, on a previous notice to the party to be examined, and any other adverse party, of at least five days, unless for good cause shown, the judge or court shall order otherwise. E\it the party to be examined shall not be compelled to attend in any county other than that of his residence, or where he may be served with a summons for his attendance. Code, s. 581; 1893, c. 114; 1899, c. 65; C. C. P., s. 334. 867. Party compelled to attend. The party to be examined, as in the preceding section provided, may be compelled to attend in the same manner as a witness who is to be examined conditionally ; and the examination shall be taken and filed by the judge, clerk or coimnissioner in like manner, and may be read by either party on the trial. Code, s. 582; 1899, c. 65, s. 2; C. C. P., s. 335. 868 CIVIL PROCEDUEE— XLF. Examination. Parties. Cli. 12 868. Testimony may be rebutted. The examination of the ])ait.v thus taken may be rebutted by adverse testimony. Code, s. 5S3; C. C. P., s. 336. 869. Refusal to testify; penalty, if a party refuses to attend and testify, as in tlie four preceding sections ])rovided, he may be pun- ished as for a contempt, and his pleadings may be stricken out. Code, s. 584; C. C. P., s. 337. 870. Testimony of party may be rebutted. A party examined by an adverse party, as in this subchapter provided, may be exam- ined on his own behalf, subject to the same rules of examination a-< other witnesses. But if he testify to any new matter, not responsive tn the enquiries put to him by the adverse party, or necessary to ex])lain or cpialify his answers thereto, or discharge when his answers would charge himself, siich adverse party may offer himself as a witness on his own behalf in respect to such new matter, subject to the sami> rules of examination as other witnesses, and shall' be so received. Code, s. 585; C. C. P., s. 338. 871. Real party in interest examined. A person for whose imme- diate benefit the action is prosecuted or defended, though not a party to the action, may be examined as a witness, in the same manner, and subject to the same rules of examination, as if he were named as a party. Code, s. 586; C. C. P., s. 339. 872. Examination of co-plaintiff or co-defendant. A party may be examined on behalf of his co-plaintiff or of a co-defendant as to any matter in Avhich he is not jointly interested or liable with sucli co-plaintiff or co-defendant, and as to which a separate and not joint verdict or judgment can be rendered. And he may be compelled to attend in the same manner as at the instance of an adverse party ; but the examination thus taken shall not be used in behalf of the party examined. And whenever one of several plaintiffs or defend- ants who are joint contractors, or are united in interest, is examined by the adverse party, the other of such plaintiffs or defendants may offer himself as a witness to the same cause of action or defense, and shall bo so received. Code, s. 587 ; C. C. P., s. 340. Note. For production of writings, see Evidence, s. 1656 et scq. b7;3 CIVIL PEOCEDURE— XLFZ. Motions and Orders. Ch. 12 XLVI. Motions and Orders. 873. What is an order. Every direction of a coiirt or judge, made or entered in writing, and not included in a judgment, is denominated an order. Code, s. 594; C. C. P., ss. 344, 345. 874. Motions; where and when made. An application for an order is a motion. Motions may be made to a clerk of a superior court, or to a judge out of court, except for a new trial on the merits. Motions must be made within the district in which the action is tria- ble. A motion to vacate or modify a provisional remedy, and an appeal from an order allowing a provisional remedy, shall have pref- erence over all other motions. Code, s. 594; C. C. P., ss. 344, 345. 875. Affidavit for or against, compelled. When any party intends to make or oppose a motion in any court of record, and it shall be necessary for him to have the affidavit of any person who shall have refused to make the same, such court may, by order, appoint a referee to take the affidavit or deposition of s\ich person. Such person may be subpcenaed and compelled to attend and make an affidavit before such referee, the same as before a referee to whom it is referred to try an issue. Code, s. 594; C. C. P., ss. 344, 345. 876. Motions determined in ten days. Whenever a motion shall be made in any cause or proceeding in any of the coiirts, to obtain an injunction order, order of arrest, or warrant of attachment, gi-anted in any such case or proceeding, or a motion to vacate or modify the same is made, it shall he the duty of the judge before whom such motion is made, to render and make known his decision on such motion within ten days after the day upon which such motion shall or may be submitted to him for decision. Code, s. 594; C. C. P., ss. 344, 345. 877. Notice of motion. When notice of a motion is necessary, it must be scrx'od ten (hiys before the time appointed for the hearing; but the court or judge may, by an order to show cause, prescribe a shorter time. Code, s. .595; C. C. P., s. 346. XLVII. Notices. 878. In writing. All notices shall be in writing. Code, s. 597; C. C. P., s. 349. 879 CIVIL PEOCEDURE— A'LT7/. Xotices. Ch. 12 879. On whom served. 2s"otices and other papers may be served on the party or his attorney personally, where not otherwise provided in this chapter. Code, s. 597; C. C. P., S9. 349, 353. Note. For statute against service on Sunday, see s. 727. 880. Service upon attorney. If served upon an attorney, servito may be made during his absence from his (itiice, by leavino- a copy of the paper with his clerk therein, or with a person haviu<; charc,e thereof ; or, when there is no person in the office, by leavin}>' it, between the hours of six in the morning and nine in the evening, in a conspicu- ous place in the oihce ; or, if it be not o])en so as to admit of such service, then by leaving it at the attorney's residence with some jierson of suitable age and discretion. Code, s. 597; C. C. P., ss. 349, 353. 881. Served on a party. If upon a party, it may he made by leav- ing' a copy of the ]iapcr at his residence, between the hours of six in the morning and nine in the evening, with some person of suitable age and discretion. Code, s. 597; C. C. P., ss. 349, 353. 882. Served by publication. If upon a person who can not l)r found after due diligence, or who is not a resident of this state, the service thereof may be made by the jniblicatiou of the notice once ;x week for four successive weeks in some newspaper published in the county from which the notice is issued ; and if no newspajier be pub- lished therein, then in some newspaper jmblished within the judicial district ; and the proof of service shall be as is required by law in the case of a service of a summons by publication. Code, s. 597; C. C. P., ss. .349, 353. 883. Publication of notices in Buncombe county. Whenever the ch'i'k of tli(^ superior court of Ihnicoinbc (•o\nity or a judge of the superior court holding the superior court of said county shall sign en- make any order directing the publication of any notice, order or ]U'o- ceeding required by law to be published in IJuucoudie county, it .shall be the duty of said clerk or said judge to desigiuite in flu; said order the newsi)a]ier in wliich said notice, order or proceeding siiall be pul)- lished, and no notice, order or proceeding ]uil)lishcd in any ])a]ier other tiuui the one designated in the said order sliall l)e legal and suffi- cient. 1905, c 4.S8. 884. Subpoena, issuance and service. Service of a sidiiMcna for witnesses may lie made l)y a sheriff, coroner or < stable, anil ])rove(i 884 CIVIL PEOCEDUEE— XLT7/. Notices. Ch. 12 by the return of such officer, or the service may be made by any person not a party to the action, and proved by his oath. A subpoena for witnesses need not be signed. by the clerk of the court; it shall be sufficient if subscribed by the party or by his attorney. Code, s. .597; C. C. P., ss. 349, 353. Note. For issuance of subpoenas by cleric, see s. 1639. 885. To what this subchapter applies. This subchapter shall not apply to the service of a sunimoiis, or other process, or of any paper to bring a party into contempt. Code, s. 597; C. C. P., ss. 349, 353. 886. Officer's return evidence of service. When a notice shall issue to the sheriff, his return thereon that the same has been executed shall be deemed sufficient evidence of the service thereof. Code, s. 940; R. C, c. 31, s. 123; 1799, c. 537. XLVIII. TiJIE. 887. How computed. The time within which an act is to be done, as provided by law, shall be computed by excluding the first day and including the last. If the last day be Sunday, it shall be excluded. Code, s. 596; C. C. P., s. 34S. 888. Computation of, in publications. The time for publication of legal niiticcs shall be ciini])uted so as to exclude the first day of publication and include the day on which the act or event of which notice is given is to happen, or which completes the full period required for publication. Code, s. 602; C. C. P., s. 359. Note. See ss. 443, 760. 770, 879, 8.34. 889 CLEKK SUPERIOE COl'IiT— /. Offu-e of. Cli. 13 CHAPTER 13. CLERK OF SUPERIOR COURT. Scctious. I. Office of, 889—897 II. Deputies, 898—900 III. Powers, 901—905 IV. Duties, 906—915 V. Reports, 916—917 VI. Money in hands of, I. Office of. 918—924 889. Includes judge of probate, which is abolished. The office or place of probate jiidge is abolished, and the duties heretofore per- taining to clerks of the superior court as judges of ]n-obate shall be performed by the clerks of the sujjerior court as clerks of said court, and all matters pending before said judges of probate shall be deemed transferred to the clerks of the superior court. Code, s. 102. 890. How elected; term of office. A clerk of the superior court for each county shall be elected by the qualitied voters thereof, at tlie time and in the mantier prescribed by law for the election of mem- bers of the general assembly. Clerks of the superior court shall hold office for four years. Const., Art. IV, ss. 16, 17. 891. How inducted into. The clerks of the superior court, before entering on the duties of their office, shall take and subscribe before some officer authorized by law to administer an oath, the oaths jire- scribed by law, and file such oaths with the register of deeds for the county. Code, s. 74; C. C. P., s. 139. Note. Acting before qualifying a niisilemranor, see s. .'i5(i.i. For official bond, see s. 295. 892. When declared vacant. Tn case any clerk shall fail to give bond and cpialifv as required by law, the presiding officer of the board of conmiissioners of his county shall immediately inform the resident judge of the judicial district thereof, who shall thereupon declare the office vacant and fill the same, and the ajipointee shall give bond and qualify. Code, s. 76; C. C. P.. s. 140. Note. Clerk can give security in IUmi of bond, see Bonds, s. 268. s!):5 CLEEK SUPEKIOR COURT— 7. Office of. Cb. 13 893. May be resigned. Any clerk of the superior court may re- sign his otiico to tlie judge of the superior court, residing in the dis- trict in which is situated the county of which he is clerk, and said judge shall fill the vacancy. Const., Art. IV, s. 29; Code, s. 78. 894. When removed from. Upon the conviction of any clerk of the superior court of an infamous crime, or of corruption and mal- practice in ofhce, he shall be removed from otfice, and he shall be disqualified from holding or enjoying any office of honor, trust or profit under this state. Code, s. 123; 1868-9, c. 201, s. 53. 895. How vacancies filled. In case the office of clerk of a superior court for a county shall Ix'cnme vacant otherwise than by the expira- tion of the term, and in case of a failure by the people to elect, the judge of the supei'ior court for the county sliall appoint to fill the vacancy until an election can be regularly held. Const., Art. IV, s. 29. 896. How furnished with stationery, etc. The requisite station- ery, records, furniture and filing cases and devices for official use must be furnished to the clerk by the board of commissioners; and to each of such books there must be attached an alphabetical index securely bound in the volume, referring to the entries therein by the page of the book, unless there is a cross-index of such book required by law to be kept. These books must, at all proper times, be open to the inspection of any person. Code, ss. 82, 84, 113; C. C. P., s. 428. 897. Examined by solicitor. At every regular term of the superior court, the solicitor for the judicial district shall inspect the office of the clerk and report to tlie court in writing. If any solicitor shall fail or neglect to ]ierforni the duty hereby imposed on him, he shall be liable to a penalty of five hundred dollars to any person who shall sue for the same. Code, s. 88; C. C. P., s. 147. Note. Failing to keep records a misdemeanor, see s. 3.592. II. Deputies. 898. May be appointed. Clerks of the superior court may appoint deputies, who shall take and subscribe the oath ]n-(>scribed for clerks. Code, s. 75; R. C, e. 19, s. 15; 1777, c. 115, s. 86. 899 CLEKK SUPERIOR COURT—//. Deputies. Ch. i;J 899. Record of appointment and discharge. Each clerk of a sii])ci'ior court shall nialce a record of the ap]iointraent of each deputy he may appoint, on the special proceedings docket of his court, giving the name of such a])pointee and the date of such ap]iointment, and make a cross-index of the same, and siiall furnish to the register of deeds of his county a transcript of such record; and such register of deeds shall record the same in the records of deeds in his othce and make a cross-index thereof on the general index in his office. When- ever any such deputy clerk shall be removed from his office the clerk of the superior court by whom he was appointed shall write on the margin of the record of such appointment in his office, and on the margin of the record of sncli appointment in the office of the register of deeds, the word "revoked" and the date of such revocation, and sig-n his name thereto. A duly certified copy of such appointment and of snch revocation, under the hand and official seal of the regis- ter of deeds, shall be deemed prima facie evidence of the regularity of such appointment and revocation, and shall be admitted as evi- dence in all the courts. 1899, c. 235, s. 3. 900. Clerk responsible for acts of. The several clerks of the superior court shall be held res])onsible for the acts of their deputies. Deputies shall be subject in all respects to all laws which apply to the clerks. 1899, e. 235, s. 2. III. Powers. 901. Enumeration of. Every clerk has power — 1. To issue subpa?nas to compel the attendance of any witness resid- ing or being in the state, or to compel the production of any bond or paper, material to any inquiry pending in his court. 2. To administer oaths and take acknowledgments, whenever necessary, in the exercise of the powers and duties of his office. 3. To issue commissions to take the testimony of any witness within or without this state. 4. To issue citations and orders to show cause to parties in all matters cognizable in his court, and to compel the appearance of such parties. .'>. To enforce all lawful orders and decrees by execution or other- wise, against those who fail to comply thercwitli or to execute lawful process. Process may bo issued by the clerk, to be executed in any county of the slate, and to be returned before him. fi. To cxemjdifv, under seal of his court, all transcripts of deeds, pa]iers or proceedings therein, which shall be received in evidence in all the courts of the state. 901 CLEEK SUPERIOR COURT— 777. Powers. Ch. 13 7. To preserve order in his court and to punish contempts. 8. To adjourn any proceeding pending before him from time to time. 9. To open, vacate, modify, set aside, or enter as of a former time, decrees or orders of his court, in the same manner as courts of general jiirisdiction. 10. To award costs and disbursements as prescribed by law, to be paid personally, or out of the estate or fund, in any proceeding be- fore him. 11. To compel the return to his office by each justice of the peace, on the expiration of the term of office of such justice, or if the justice be dead by his personal representative, of all records, papers dockets and books held by such justice by virtue or color of his office and to deliver the same to the successor in office of such justice. 12. To take proof of deeds, bills of sale] official bonds, letters of attorney, or other instruments permitted or required by law to be registered. 13. To take proof of wills and grant letters testamentary and of administration. 14. To revoke letters testamentary and of administration. 15. To appoint and remove guardians of infants, idiots, inebriates and lunatics. 16. To bind out apprentices and to cancel the indentures in such cases. 17. To audit the accounts of executors, administrators, collectors, receivers, commissioners and guardians. 18. To exercise jurisdiction conferred on him in every other case prescribed by law. Code, 33. 103, 108; C. C. P.,.S3. 417, 418, 442; 1901, c. 614, s. 2. 902. When he can not exercise. No clerk can act as such in rela- tion to any estate or proceeding — 1. If he has, or claims to have, an interest by distribution, by will, or as creditor, or otherwise. 2. If he is so related to any person having or claiming such inter- est, that he would, by reason of such relationship, be disqualified as a juror; but the disqualification on this ground ceases, unless the objection is made at the first hearing of the matter before him. 3. If he or his wife is a party or a subscribing witness to any deed of conveyance, testamentary paper or nuncupative will ; but this dis- qualification ceases when such deed, testamentary paper, or will has been finally admitted to or refused probate by another clerk, or before the judge of the superior court. 4. If he or his wife is named as executor or trustee in any testa- mentary or other paper ; but this disqualification ceases when the will 902 CLERK SUPERIOR COURT—///. Powers. Ch. 13 or other paper is finally admitted to or refused probate by another clerk, or before the judge of the superior court. 5. If he shall renounce the exeeutorshi]) and endorse the same on the will or on some paper attached thereto, before it is propounded for probate, in which case the renunciation must be recorded with the M'ill if admitted to probate. Code, s. 104; C. C. P., s. 419; 1871-2, c. 196. Note. Clerk can not appoint himself or deputy oouimissioner to sell land, see Partition, s. 251.3. 903. Exercise of, on waiver of disqualification. The parties may waive the di.'^qualilication specified in subdivisions one, two, three and five of the preceding section, and upon filing in the office such waiver in writing, the clerk shall act as in other cases. Code, s. 10.5; C. C. P., s. 420. 904. When can not exercise, cause removed. When any of the disqualifications specified in this chapter exist, and there is no waiver thereof, or can not be such waiver, any party in interest may apply to the judge of the district or to the judge holding the courts of such district for an order to remove the proceedings to the clerk of tlie superior coiirt of an adjoining county in the same district. Code, s. 106; C. C. P., s. 421. Note. For probate of conveyances to which clerks are parlies, see Convey- ances, s. 995. 905. Exercised by judge, when. In all cases where the clerk of the superior court shall be executor, administrator, collector or giiar- dian of any estate at the time of his election to office, in order to euable him to settle such estate, the judge of the superior court mentioned in the preceding section is empowered to make sucli orders as may be necessary in the settlement of the estate ; may audit the accounts or appoint a commissioner to audit the accounts of such executor or administrator, and report to either of said judges for his a{)proval, and when the accounts are so approved, it shall be his duty to order the proper record to be made by the clerk, and the accounts to be filed in court. Code, s. 107; 1871-2, c. 197. IV. DUTIE.S. 906. To receive official papers from predecessor. Immediately after he shall have given boiul and qualilicd, liic clerk shall r(M'eivc' from the late clerk of the superior court all tiie records, books. ])apers, moneys and pr(3perty of his office, and give receipts for the same, and if any clerk shall refu.se, or fail witliin a reasonable time 906 CLERK SUPEEIOR COURT— ZF. Duties. Ch. V, after demand to deliver such records, books, papers, moneys and prop- erty, he shall be liable on his official bond for the value thereof. Code, s. 81; C. C. P., s. 142. Note. Failure to deliver books, records, etc., misdemeanor, see ss. 3570, 3592. 907. To transfer records to successor, how compelled. Upon going out of office for whatever reason, any clerk of the superior, inferior, or criminal court, shall transfer and deliver to his successor (or to such person, before his successor in office may be appointed, as the court may designate), all records, documents, papers, and money belonging to the office. And the judge appointing any clerk to a vacancy in the clerkship of the superior court, may give to such person an order for the delivery to him, by the person having the custody thereof, of the records, documents, papers and moneys belong- ing to the office, and he shall deliver the same in obedience to such order. And in case any clerk going out of office as aforesaid, or other person having the custody of such records, documents, papers, and money as aforesaid, shall fail to transfer and deliver them as herein directed, he shall forfeit and pay to the state one thousand dollars, which shall be sued for by the prosecuting officer of that court. Code, s. 124; R. C, c. 19, s. 14. 908. Unperformed duties of outgoing clerk, how compelled. Whenever, upon the death or resignation, removal from office, or at the expiration of his term of office, any clerk shall have failed to dis- charge any of the duties of his office, the court, if practicable, shall cause the same to be performed by another person, who shall receive for such services, and as a compensation therefor, the fees allowed by law to the clerk ; and such portion thereof as may be paid by the county, may be recovered by the coimty, by suit on the official bond of the defaulting clerk, to be brought on the relation of the board of commissioners of the county. Code. s. 87; R. C, c. 19, s. 19; 1844, c. 5, s. 6. 909. When and where to keep office open. He shall have an office in the courthouse or other place provided by the board of com- missioners, in the county town of his county. He shall give due attendance, in person or by deputy, at his office daily, Sundays and holidays excepted, from nine o'clock, a. m., to three o'clock, p. m., and longer when necessary for the dispatch of business ; and per- sonally every Monday for the transaction of probate business, and on each succeeding day till such matters are disposed of; and upon his failure to do so, unless caused by sickness or other urgent necessity or unless leave of absence is obtained by law, he shall forfeit his office. Code, ss. 80, 114, 115; C. C. P., s. 141; 1871-2, c. 1.3G. 239 910 CLERK SUPERIOR COURT— /I'. Duties. Ch. 13 910. How leave of absence from office obtained. Upon api)lica- tion of any clerk of the superior Cdurt U> the judge of the superior court, residing in tlie district in wiiich said clerk resides, showing good and sufhcient reason for said clerk absenting himself from his office, said judge may issue an order allowing said clerk to absent himself from his office for such time as said judge may deem proper: Provided, said clerk of the superior court shall at all times leave a competent deputy in charge of his office during his absence. The order of said resident judge granting relief shall be filed and re- corded in the office of the clerk of the superior court of the county in which said clerk resides. 1903, e. 467. 911. To furnish blank process, bonds and undertakings. Clerks of courts shall furnish to parties printed copies of the formal parts of all process required to be issued by them, with convenient blank spaces for the insertion of written matter; and also the blank forms of such bonds and undertakings as are required to be taken by them. Code. s. 3761; C. C. P.. s. .")5n : 1868-!), o. 279, s. .558. 912. How papers must be filed. The clerk must tile and preserve all papers in proceedings before him, or belonging tx) the court ; and shall keep the papers in each action in a se]iarate roll or bundle, and at its termination attach them together, properly labeled, and file them in the order of the date of the final judgment; and all such papers and the books kept by him belong to, and appertain to, his ofiice, and must be delivered to his successor. Code, ss. 86, 111; C. C. P., ss. 146, 426. 913. To keep record; liable for records and papers. He shall keep in bound volumes a complete and faithful record of all his offi- cial acts, and give copies thereof to all persons desiring them, ou payment of the legal fees. He shall be answerable for all records belonging to his office, and all papers filed in the court, and they shall not be taken from his custody, unless by special order of the court, or on the written con.sent of the attorneys of record of all the parties; but parties may at all times have copies upon paying the clerk therefor. Code, s. 82; C. C. P.. s. 143; 1868-9, c. i:>n, s. 4. 914. To endorse date of issue on process. The clerk shall note on all precepts, process and executidus the day on which the same shall be issued; and the sheriff or other officer receiving the same for execution shall in like numner note tliereon the day on which he sliall have received it, and the day of the execution ; and every clerk, siieritT or other officer neglecting so to do shall forfeit and pay one hundred dollar.^. Code, s. 100. 111;-. CLERK SUPERIOR COURT— 77. Duties. Ch. 13 915. Books to be kept. Each clerk shall keep the following books, which shall be open to the inspection of the public during reg-nlar office hours : 1. Summons docket, which shall cnutain a docket of all writs, summonses or other original process issued by him, or returned to his office, which are made returnable to a regular term of the superior court; this docket shall contain a brief note of every proceeding whatever in each action, up to the final judgment inclusive. 2. Judgment docket, which shall contain a note of the substance of every judgment and every proceeding subsequent thereto. 3. Civil issue docket, which shall contain a docket of all issues of fact joined upon the pleadings, and of all other matters for hear- ing before the judge at a regular term of the court, a copy of which shall be furnished to the judge at the commencement of each term. 4. Cross-index to judgments, which shall contain ;i dir.'ct and reverse alphabetical index of all final judgments in civil actions _ rendered in the court, with the dates and numbers thereof, and also of all final judgments rendered in other courts and authorized by law to be entered on bis judgTuent docket. .5. Ceiminal docket, which shall contain a note of evcu'v pro- ceeding in each criminal action. fi. i\IiNUTE docket, which shall contain a recurd of all jirocced- ings had in the court during term, in the order in which they occur, and such other entries as the judge may direct to be made therein. 7. Special proceedings docket, which shall contain a docket of all writs, summonses, petitions, or other original process issued by him, or returnable to his office, and not returnable to a regular term ; this docket shall contain a brief note of every proceeding, up to the final judgTnent inclusive. 5. Minute docket, which shall contain a record of all proceed- ings had before the clerk, in actions or proceedings not returnable to a regular tenn of the court. 9. Record of wills, which shall contain a record of all wills, with the certificates of probate thereof. 10. Record of appointments, which shall contain a record of appointments of executors, administrators, guardians, collectors and masters of apprentices, with revocations of all such appointments; and on which shall be noted all subsequent proceedings relating thereto. 11. Record of orders and decrees, which shall contain a record of all orders and decrees passed in his office, which he is required to make in writing, and not required to be recorded in some other book. 12. Record of accounts, which shall contain a record of accounts, in which must be recorded inventories and annual accounts of execu- Rev. Vol. 1—12 241 915 CLERK SUPERIOR COURT—/]'. Duties. Ch. 13 tors, administrators, collectors, trustees Tinder assi<^ninonts for cred- itors, and guardians, as audited by him from time to time. 13. Record of setti,emexts, which shall contain a record of settlements, in which must be entered the final settlements of execu- tors, administrators, collectors, commissioners, trustees under assign- ments for creditors, and g-iiardians. 14. Record of jurors^ which shall contain a list of all persons who serve as grand, petit, and tales jurors in his coiirt; which shall be i^roperly indexed. 15. Record of justices of the peace, which shall contain a complete list of the justices of the peace of the county, by townships, giving the date of election or appointment, qualification, and expira- tion of term of office of each ; and whenever a vacancy occurs it shall be noted therein. These books shall at all times show a complete list of the justices of the peace of the county and who was the jirede- cessor of each justice and the succession in otfice. IG. Record of bookSj which shall contain the date of delivery to each justice of the peace of any dockets, records, and books; and the date of the receipt by him to any justice of the peace, or to the personal representative of a deceased justice of the peace, for any dockets, records and books returned to iiim. 17. Cro.ss-index of wills, which .shall contain a general alplia- betical cross-index of all wills filed or recorded in the otfice of tlic clerk of the superior court, and devising real esta.te or any interest therein, whether such devise appears on the face of said will or not, showing the full name of each devisor, and all devisees as they are given in the will, together with the date of the ]irobate of such will. IS. Cross-index of executors and AT>.MiNisTiiAToi!s, which shall contain a general alphabetical cross-index of tiie ajjpointnient of all executors and administrators made by the courts of their county, showing the name of the appointee, the name of the decedent, and date of appointment. 10. Cross-index of guardians, which shall contain a general alphabetical cross-index of the appointment of all g\uirdians made by the courts of their county, showing the name of the guardian, the names of tlie wards, and date of appointment. 20. Record of fines and penalties, which shall contain an itemized and detailed statement of the respective amounts received by him in the way of fines, penalties and forfeitures, and paid over to the county treasurer. 21. Lien docket, whicli shall contain a record of nil notices of liens filed in his office, ]u-o])erly indexed showing tlic names of llie lienor and lienee. !»15 CLERK SUPERTOE COURT— 7T^ Duiies. Cli. 13 22. Recoed of appointment of receivers, which shall contain a record of all aijpointinents of receivers, and all inventories, reports, and accounts filed by them ; Avhich shall be properly indexed. 23. Record of corporations, which shall contain a record of the I'crtificate of incorporation of all corporations chartered under gen- rial law, with principal otRce or place of business in his county. 24. Accounts of indigent orphans, which shall contain a II cord of all receipts from persons for money paid for indigent chil- dren. 25. Register of physicians and surgeons, which shall contain a list of the names and places of residence with date of registration of all persons registered by him as physicians and surgeons. 26. Register of dentists, which shall contain a registration of certificates of all persons entitled to practice dentistry in his county. 27. Register of trained nurses, which shall contain the name, residence and date of registration of all trained nurses duly licensed in his county. 28. Permanent roll of registered voters, which shall contain an alphabetical list by to\\niships of all persons entitled to perma- nent registration, giving the name and age of each, the name of the person from whom he was descended, unless he himself was a voter on July 1, 1867, or prior thereto, the state in which he was such voter and the date he applied for registration. 29. Record of payment of poll tax, which shall contain a list by townships of all j^ersons certified to him by sheriif or tax col- lector as having paid their poll tax by May first. 30. Lunacy' docket, which shall contain a record of all exami- nations of persons alleged to be insane, a brief summary of the proceedings, and his findings, and a record of all proceedings in lunacy transmitted to him by justices of the peace. 31. Record of county' treasurer's report, which shall contain an itemized statement of all fines and penalties paid to the county treasurer; which said itemized statement of fines and penalties re- ceived by the county treasurer shall be by him reported to the clerk on the first day of January, April, July and October, respectively, of each and every year. 32. ISToL. PROS. WITH LEAVE RECORD, whicli shall contain a I'ccord of all cases in which a nolle prosequi with leave is entered in criminal actions, with the terra of court at which the order is made, and which sliall be cross-indexed. Code, ss. 83, O.'), 96. 97, 112, 1789; 1893, c. 52; 1899, c. 110; 1903, c. 51 ; 1901, c. 2, s. 9 ; 1899, c. 82 ; 1880, c. 181. s. 4 ; 1S87. c. 178, s. 2 ; 1903, c. Sno, s. (! ; 1!X)1, c. 550, s. 3; 1901, c. 89, s. 13; 1899, c. 1. s. 17; 1905, c. 360, s. 2. Note. For record of official reports, see s. 919. 91G CLERK SUPERIOR COURT— F. Reports. Cli. 13 V. Reports. 916. List of justices to secretary of state. The clerk of the superior court of each county in which justices of the peace are not elected by the qualified voters tliereof un the first ^londay in January preceding each regular session of the general assembly shall certify \>< the secretary of state a correct list of all justices of the peace in ottii-c in his county, the township in which each resides, the term of oflice of each, time of election or appointment, and when the respective terms of office of each expires. He shall also report the names of those elected or appointed justices of the peace, but who have failed to qualify, and when their terms of office began and the length thereof. Code, s. 89; 1901, c. 37, s. 2; 1881, c. 32G. 917. Criminal statistics to attorney general. Within twenty days after the adjournment of any term of the superior coiirt at which criminal causes were triable, the clerk thereof shall transmit to the office of the attorney general of the state a duly certified state- ment of the number of indictments finally disposed of at such court, specifying the number for each separate offense, the number on which convictions were had and on which defendants were acquitted, and of indictments against persons who were convicted on confes- sion, and against persons who were discharged without trial, and also the name, age, occupation, sex, race and offense of every person convicted at such court, or pleading guilty of any offense, together with such other items of information in relation to such convicts and their offenses as the attorney general shall require, on a form prescribed by him. For every neglect of any clerk of said court he shall forfeit the sum of fifty dollars, to be adjudged in tlie superior court of Wake county on the motion of the attorney general, whose duty it is hereby made to make such motion at the first term of said court held after such neglect of ajiy clerk. 1889, c. 341, ss. 1, 2, 3. VI. Money in Hands of. 918. Of funds in hand to county commissioners, chrks of the superior courts sliall make an annual rcpurt of all public funds which may be in tlieir liands on the first ^Monday in ]Oi'cend)er of each anil every year, or oftcuer, if required by orih'r of the board of conunis- sioners or any other lawful authoi-ity, which report shall include a statement of all funds in the hands of said clerks by virtue or color of their office, and wliich may belong to persons or corporations. The said report shall be made to the board of county commissioners 244 UlS CLEEK SUPERIOE COURT— 17. Money in, etc. Ch. 13 and shall be addressed to the chairman thereof, and the said report shall give an itemized statement of said funds so held, with the date and source from which they were received, and the person to whom due, how invested and where, and in whose name deposited, giving the date of any certificate of deposit, or other evidence of investment of said fund, and the rate of interest the same is drawing, and said report shall be subscribed and verified by the oath of the party making the same before any person allowed to administer oaths. 1891, c. 580. Note. Failure to report or swearing falsely to same a misdemeauor, see 8. 3605. 919. How approved, recorded, and published. The board of commissioners shall refer all itemized statements made by the clerks of the superior courts to a special committee of their board, who shall compare the same with the records of the clerk's otfice from which said report is made and certify the same to the board as cor- rect, and if approved the board shall cause the same to be registered in the ofiice of the register of deeds, in a book to be furnished to said register by the board of county commissioners, which books shall be styled "Record of Oificial Reports," with a i)roper index of all reports recorded therein, and each original i-eport shall, if approved by the chairman of the board, be endorsed with the word "approved," the date of approval and the endorsement sigTied by the chairman, and when recorded by the register of deeds he shall endorse thereon the date of registration, the page of the Record of Official Reports upon which the same is registered, sign the same and file it in his office. The said register shall also cause a copy of said report to be published one time in some newspaper of general circulation pub- lished in the coTinty of said I'egister and also posted at the courthouse door within twenty days after filing said reports ; and if no news- paper is published in the county the posting of said report at the courthouse door shall be a sufficient publication. The cost of publish- ing said report shall be paid by the county. Code, s. 90; 1891, c. 580, s. 3; 1893, c. 14, s. 3; 1874-5, c. 151; 1876-7, c. 276. 920. Compelled by commissioners. If any clerk shall fail to report, or if after a rc])ort has been made, the board of county com- missioners shall have reason to believe that any report is incorrect, the board shall take legal steps to compel a proper report to be made by suit on the bond of such clerk, or by reporting the fact to the solicitor of the district to which the county of said board may belong for his action. Code. s. 92; 1891, e. 580, s. 2; 1874-5, e. 151, s. 3; 1876-7, e. 276. 921 OLEKK 81TPEKT0R COURT— 17. :!iIoHcy in, etc. Ch. lo 921. Paid to persons entitled. The said clerks shall, on or before the first day of .lanuarv in every year after the statements required in the foregoing sections are made, account with and jiay to the j)er- sons entitled to receive the same all such balances re])orted as afore- said to be in their hands. Code, s. 1865; R. C, c. 73, s. 2; 1823, c. 1186, s. 2; 1831, o. 3, ss. 1. 3; 1893, c. 14, s. 1. 922. Fees of jurors and witnesses, when paid to treasurer. All moneys due jurors and witnesses which shall remain in the hands of any clerk of the' .sniaerior court on the first day of January after the publication of a third annual report of the said clerk show- ing the same shall be turned over to the county treasurer for the use of the school fund of the county, and it shall be the duty of said clerk to indicate in his report any moneys so held by him for a period embracing the two annual reports. 1891, c. 580, s. 4; 1893, c. 14, s. 3. 923. Used by public till called for. The money aforesaid, while held by the clerks, shall be paid on application, to the persons entitled thereto; and after it .shall cease to be so held, it may be used as other revenue, subject, however, to the claim of the rightful owner. Code, s. 1869; R. C, c. 73, s. 6; 1828, e. 41, s. 1. 924. Paid indigent children, when. Whenever any moneys less in amount than twenty dollars shall be paid into court for indigent or needy children for whom no one will become guardian, upon sat- isfactory proof of their necessities, the clerk may pay the same upon his own motion or order to the mother or other person who has charge of said minor or to some discreet neighbor of said minor to be used for the benefit or maintenance of said minor. Such person shall be solvent and shall faithfully apply any money so paid to him or her. The clerk shall take a receipt from the person to whom the same is paid and record it in a book entitled record of amounts paid for indigent children, and the same shall be a valid acquittance for said clerk. 1899, c. 82. Note. For duties as to process, see Civil Procedure. For duties as to wrecked or stranded property, sec Wrecks. For qunlifieation of notaries public, sec s. 2348. For liability in relation to guardian bonds, see ss. 1784, 1785. COMMISSIONERS OF AFFIDAVITS. Ch. 14 CHAPTER 14. COWIIVIISSIONERS OF AFFIDAVITS. (Sections 925—931.) 925. Clerks and notaries authorized to take affidavits. The clerks of the supreme and superior courts and notaries iniblic are authorized to take and certify affidavits to be used before any jus- tice of the peace, judge or court of the state; and the affidavits so taken by a clerk shall be certified under the hands of the said clerk, and if to be used out of the county where taken, also under the seal of the court of which they are respectively clerks, and, if by a notary, under his notarial seal. Code, s. 631. 926. Governor appoints; term of office; powers. The governor is hereby authorized to appoint and commission one or more com- missioners in any foreign country, state or republic; and in such of the states of the United States, or in the District of Columbia, or any of the territories, colonies or dependencies as he may deem expedient, who shall continue in office for two years from the date of their appointment, unless sooner removed by the governor, and shall have authority to take the acknowledgment or proof of any deed, mortgage or other conveyance of lands, tenements, or hereditaments lying in this state, and to take the private examination of married women, parties thereto, or any other writings to be used in this state. And such acknowledgment or proof, taken or made in the manner directed by the laws of this state, and certified by the commissioner shall have the same force and effect for all pur]30ses, as if the same had been made or taken before any competent authority in this state. Code, s. 632. 927. How qualify; may administer oaths, take depositions, affi- davits, etc. Every conmiissioner appointed by the governor afore- said, before he shall proceed to perform any duty by virtue of this chapter, shall take and subscribe an oatli before a juistice of the peace in the city or comity in which such commissioner shall reside well and faithfully to execute and perform all the duties of such commissioner, according to the laws of North Carolina ; which oath shall be filed in the office of the secretary of state. And thereupon he shall have full power and authority to administer an oath or 927 COMMISSIONERS OF AFFIDAVITS. Cli. U affirmation to any person, who shall be willing or desirous to make such oath or affirmation before him, and to take depositions and to examine the witnesses under any commission emanating from the coiirts of this state, relating to any cause depending, or to be brought in said courts, and every deposition, affidavit, or affirmation made before him shall be as valid as if taken before any projjor officer in this state. Code, s. 633. 928. Appointments, where recorded; certified copies evidence. It shall be the duty of the governor to cause to be recorded by the secretary of state the names of the persons who are appointed and qualified as commissioners, and for what state, territory, county, city, or town ; and the secretary of state, when the oath of the com- missioner shall be filed in his office, shall forthwith certify the appointment to the several clerks of the superior courts of the state, who shall record the certificate of the secretary at length ; and all removals of commissioners by the governor, and all commissioners whose commissions have expired by law, and which have not been renewed, shall be recorded and certified in like manner; and a cer- tified copy thereof from the clerk, or a certificate of the appoint- ment or removal aforesaid from the secretary of state, shall be suffi- cient evidence of the appointment or removal of such commissioner. Code, s. 634. 929. Secretary of state to prepare and publish list in public laws. The secretary of state shall prepare and cause to be printed in each volume of the public laws a list of all persons who since the preceding publication in the public laws have been appointed com- missioners of affidavits and to talY Hu.sr.ANi) axd Wife. 952. Of wife's land; how proven. Every conveyance, power of attorney or other insfviiiueut affecting the estate, right or title of any married woman in hinds, tenements or liereditaments must be exe- cuted by such married woman and her husband, and due proof or acknowledgment thereof must be made as to the husband and due acknowledgment thereof must be made by the wife, and her private examination, touching her voluntary assent to such instrument, shall be taken separate and apart from her husband, and such acknowledg- ment or proof as to the execution by the husband and such acknowl- edgment by the wife and her private examination shall be taken and certified as provided by law. Any conveyance, power of attorney, contract to convey, mortgage, deed of tnist or other instrument exe- cuted by any married woman in the manner by this chapter provided and executed by her husband also, shall be valid in law to pass, bind or charge the estate, right, title and interest of such married woman in and to all such lands, tenements and hereditaments or other estate, real or personal, as shall constitute the subject matter or be emlu-aceil within the terms and conditions of such instrument or purport to be passed, bound, charged or conveyed thereby. Code, s. 12.'i6; 1899, c. 235, s. 9 ; C. C. P., s. 429, subsec. 6; 1868-9. c. 277, s. 15. Note. For forms of private examination, see ss. 100.3, 1004. 953. Acknowledgment by, at different times and places; before different officers. Tn all cases of deeds or other instruments executed by husband and wife and requiring registratinn, the probate of snch instruments as to the husband and acknowledgment and private exami- nation of the wife may be taken before different officers authorized by law to take probate of deeds, and at different times and places, whether both of said officials reside in this state or only one in this state and the other in another state or country. And in taking the probate of such instruments executed by husband and wife, including the private examination of the wife, it shall not be material whether the execution of the instnnnent was proven as to or acknowledged by the husband before or after the acknowledgment and private examina- tion of the wife. 1899, c. 235, s, 9; 1895, c. 1.36. 954. Husband's deed registered though no private examination of wife. When an instrument pu>r]iorts to be signed by a husband and wife the instrument may be ordered registered, if the acknowl- edgment of the husband is duly taken, whether the private examina- ' tion of the wife is properly taken or not, but no such instrument .shall be the act or deed of tlu* wife, unless her jirivate examination is taken according to law. 1899, c. 235, s. 8; 1901, c. 637. 250 955 CONVEYANCES— ///.% //M.s'/ja/((/ a)K/ ir//V'. Ch. 18 955. What officers can take private examinations of femes covert. A\'licn the ])rivate examination of any married woman is necessary to be talven, the oificials authorized by law to take proofs and acknowledg-nients of the execution of any instrument are each and every one of them hereby empowered to take the private examination of any married woman touching her free and voluntary assent to the execution of such instrument to which her assent is or may be necessary, and to certify the fact of such private examination. 1899, c. 235, s. 6. 956. Private examination procured by fraud, deed good as to innocent purchaser for value. No deed of conveyance for lands nor instriunent of writing- of whatever nature or kind which is required or allowed by law to be registered executed by a husband and wife since the eleventh of March, one thousand eight hundred and eighty-nine, or which may be hereafter executed by a husband and wife, if the private examination of the wife shall have been certified in the manner prescribed by law, shall be deemed or declai-ed invalid in any case because its execution was procured by fraud, diiress or other undue influence, unless it shall be shown that the grantee or person or persons to whom such instrument was or shall be made participated in the fraud, duress or other undue influence or had notice thereof before the delivery of the instrument, and where the grantee or person or persons to whom such instriiment has been or shall be made is shown to have had notice of siich fraud, duress or imdue influence or to have participated therein, an innocent purchaser for a valuable consideration from or under such grantee or person to whom such instrument has been or shall be made shall not be affected by any fraud, duress or other undue influence practiced or exer- cised in procuring the execution and acknoAvledgment of such instru- ment. 1889, c. 389; 1899, c. 235, s. 10. 957. Under power of attorney from. All conveyances which may be made by any ])erson under a power of attorney from any feme covert by her freely executed with her husband, shall be valid to all intents and pur|)oses to pass the estate, right and title which said feme covert may have in such lands, tenements and hereditaments as are mentioned or included in such ]iower of attorney. Code, s. 1257; R. C, c. 37, s. 11; 1798, e. 510. 958. Wife need not join in purchase-money mortgage. The pur- chaser of real estate who does not jiay the whole of the purchase money at the time when he takes a deed for title, may nmko a mort- gage for securing the ])ayment of such ]>urchase moliey, or such part Rev. Vol. I— 13 . 257 958 CONVEYAIvTCES— 777. Bij Hushand aird Wife. Ch. IS thereof as may remain unpaid, which shall be good and effectual against his wife as well as himself, without requiring her to join in the execution of such mortgage deed. Code, s. 1272; 1868-9, 0. 204. 959. By husband, wife a lunatic. Every man whose wife is a lunatic or insane and is confined in any asylum for lunatics and insane persons in the state of ISTorth Carolina shall have the right to sell and convey any of his real estate by deed, except his homestead, without the signature and private examination of his wife: Provided, the superintendent of the asylum in which said feme covert shall be con- fined shall certify that she is confined in the asylum of which he is superintendent, and that she is of insane mind and niemory, whicli certificate shall be subscribed and sworn to before the clerli of the superior coi\rt of the county in which said asylum shall Ije situated, which certificate shall be attached to the deed, together with the cer- tificate of the clerk, under his hand and official seal. When the deed of a married man whose wife is insane or a lunatic shall be executed, probated and registered in accordance with law, it shall convey all the estate and interest of the grantor in the land con%'eyed free and exempt from the dower rights and all other interests of his wife: Provided, this section shall not apply to the homestead of the husband. 1905, c. 138, ss. 1, 3. Note. For probate of such deed, see s. 1000. Note. For other rights of husband and wife, see Married Women. For validity of marriage settlements, see s. 963. IV. Fkaudulent. 960. Void as to creditors. For avoiding and abolishing feigned, covinous and fraudulent gifts, gTants, alienations, conveyances, bonds, suits, judgments and executions, as well of lands and tenements as of goods and chattels, which may be contrived and devised of fraud, to the purpose and intent to delay, hinder and defraud creditors and others of their just and lawful actions and debts, every gift, grant, alienation, bargain and conveyance of lands, tenements and heredita- ments, goods and chattels, by writing or otherwise, and every bond, suit, judgment and execution, at any time had or made, to or for any intent or purpo.se last before declared and expressed, shall be deemed and talcen (only as against that person, liis heirs, executors, admin- istrators and assigns, whose actions, debts, accounts, damages, penal- ties and forfeitures, by such covinous or fraudulent devices and prac- tices aforesaid, are, shall, or might be in anywise disturlied, hin- dered, deUiyed or defrauded), to be utterly void and of no effect; iJiiU CONVEYANCES— /F. Fraudulent. Ch. 18 any pretense, color, feigned consideration, expressing of use, or any otlier matter or thing to the contrary notwithstanding; and in all actions by creditors to set aside gifts, grants, alienations and convey- ances of lands and tenements and judgments purporting to be liens on the same on the ground that such gifts, grants, alienations, convey- ances and judgments are feigned, covinous and fraudulent hereunder, ■it shall be no defense to the action to allege and prove that the lands and tenements fdleged to be so conveyed or encumbered do not exceed in value the homestead allowed by law as an exemption : Provided, that nothing in this section shall be construed to authorize the sale under execution or other final process obtained on any debt during the continuance of the homestead, of any interest in such land as may be exempt as a homestead. Code, s. 1545; 1893, c. 78; R. C, e. 50, s. 1 ; 50 Edw. III., e. 6; 13 Eliz., c. 5, s. 2; 1715, c. 7, s. 4. 961. When void as to purchasers. Every conveyauce, charge, lease or encumbrauee of any lands or hereditaments, goods and chat- tels, if the same be made with the actual intent in fact to defraud such person as hath purchased or shall purchase in fee-simple or for lives or years the same lands or hereditaments, goods and chattels, or to defraud such as shall purchase any rent or profit out of the same, shall be deemed utterly void against such person and others claiming mider him who shall purchase for the full value thereof the same lands or hereditaments, goods and chattels, or rents or profits out of the same, without notice before and at the time of his purchase of the conveyance, charge, lease or incumbrance, by him alleged to have been made with intent to defraud; and possession taken or held by or for the person claiming under such alleged fraudu- lent conveyance, charge, lease or encumbrance shall be always deemed and taken as notice in law of the same. Code, s. 1546; R. C, c. 50, s. 2; 27 Eliz., c. 4, s. 2; 1840, c. 28, ss. 1, 2. 962. Gifts, indebtedness evidence of fraud. No voluntary gift or settlement of property by one indebted shall be deemed or taken to be void in law, as to creditors of the donor or settler prior to such gift or settlement, by reason merely of such indebtedness, if prop- erty, at the time of making such gift or settlement, fully sufficient and available for the satisfaction of his then creditors, be retained by such donor or settler; biit tlie indebtedness of the donor or settler at such time shall be held and taken, as well with respect to creditors prior as creditors subsequent to such gift or settlement, to be evidence only from which an intent to delay, hinder or defraud creditors may be inferred ; and in any trial shall, as such, be submitted by the court to the jury, with such observations as may be right and ]n'oper. Code, s. 1547; E. C, c. 50, s. 3; 1840, c. 28, ss. 3, 4. 963 COXVEYANCES— 7F. Fmmhilcnt. Ch. IS 963. Marriage settlements, as to existing creditors. Every con- tract and settlement of property made by any man and woman in con- sideration of a marriage between them, for the benefit of such man or woman, or of their issue, wliether the same be made before or after marriage, shall be void as against creditors of the parties making the same respectively, existing at the time of such marriage, if the same is antenuptial, or at the time of making such contract or settle- ment, if the same is postnuptial. Code, ss. 1270, 1820; 1871-2, c. 193, s. 11; R. C, c. 37, s. 25; 1785, c. 238. s, 2. Note. See also, s. 2108. 964. Bona fide conveyances to innocent purchaser for value. valid. Nothing contained in the preceding sections shall be construed to impeach or make void any conveyance, interest, limitation of use or uses, of or in any lands or tenements, goods or chattels, bona fide made, upon and for good consideration, to any per.son not having notice of such fraud. Code, s. 1548; R. C, c. 50, s. 4; 13 Eliz., c. 5, s. 6 ; 1785, c. 7, s. 6. 965. Innocent purchaser for value protected against illegal con- sideration. Xo conveyance or mortgage, made to secure the payment of any debt or the performance of any contract or agreement, shall be deemed void as against any purchaser for valuable or other good consideration of the estate or property conveyed, sold, mortgaged or assigTied, by reason that the consideration of such debt, contract or agreement shall be forbidden by law, if such purchaser, at the time of his purchase, shall not have had notice of the unlawful considera- tion of such debt, contract or agreement. Code, s. 1549; R. C, c. 50, s. 5; 1842, c. 70. 966. Purchasers entitled to remedy of creditors. Purchasers of estates previously conveyed in fraud of creditors or ]iurcliasers shall have like remedy and relief as creditors might have had Ix^fore the sale and purchase. Code, s. 1550; R. C, c. 50, s. 6. Note. For fraudulent trading, see s. 2118. V. Assignments for Creditohs. 967. Debts mature on execution of; schedule of preferred debts filed. Upon the execution of any voluntai-y deed of trust or deed of assignment for the benefit of creditors, all debts of the maker thereof shall become due and payable at once; a schedule of all preferred debts shall be filed under oath by the assignor in the ofilce of the clerk of the superior court of the county in wliich such assignment 260 !m;7 CONVEYANCES— F. Assignment for Creditors. Ch. 18 is made, stating the name of preferred creditors, the amount due each, when the debt was made, and the circumstances under which said debt was contracted, and said schedule shall be filed within five I lays of the registration of such deed of assignment. 1893, c. 453. 968. Inventories filed within ten days. Upon the execution of su'/h deed of trust, the trustee, whether named therein or appointed as hereafter provided for, shall file with the clerk of the superior court of the county in, which said deed of trust is registered, within trn days after the registration thereof, an inventory under oath, giving a complete, full and perfect account of all property that has come into his iiands or to the hands of any person for hira, by virtue of such deed of trust, and whenever further property of any kind not included in any previous return shall come to the hands or knowledge of such trustee he shall return the same as hereinbefore prescribed within ten days after the possession or discovery thereof. 1893, c. 453, s. 2. 969. Insolvent trustee without bond removed by clerk. Upon the complaint of any creditor of the assignor or trustee in such deed of trust, alleging under oath that the trustee named therein is insol- \ int and asking that he be required to give bond or be removed, it shall be the duty of the clerk of the superior coirrt of the county in which such deed of trust is registered, upon a notice of not more tlian ten days to such trustee, to hear said complaint; and if upon such hearing said clerk shall be satisfied that such trustee is insolvent, ii shall be his duty to remove such trustee and to appoint some com- petent person to execute the provisions of such deed of trust, unless sneh insolvent triistee shall file with said clerk a good and sufficient liond, to be approved by said clerk, in a sum double the value of the ])iviperty in said deed of trust, payable to the state of North Carolina, and conditioned that such trustee shall faithfully execute and carry into effect the provisions of said deed of trust. 1893, c. 453, s. 3. 970. Substituted trustee to give bond. Upon the removal of sneh insolvent trustee it shall be the diity of the clerk to require the person appointed to execute the provisions of such deed of trust, liefore entering upon his duties, to file with the clerk a good and sufficient bond, to be approved by the clerk in a sum double the value of the property in said deed of trust, payable to the state of North < arolina, and conditioned that such person shall faithfully execute and carry into effect the provisions of said deed of trust. 1893, C.453, s. 3. 261 971 CONVEYA]\^CES— r. Assignment for Creditors. Ch. l.s 971. Only perishable property sold within ten days from regis- tration. It shall be unlawful for any trustee, whether uamed iu such deed of trust or appointed by a clerk of the superior court, to sell any part of the property described in such deed of trust within ten days from the registration thereof, unless such property or some part thereof be perishable, in which case he may sell such property as is perishable, according to the powers conferred tipon him in said deed of trust. 1893, c. 453, s. 4. 972. Creditors to file verified statements with trustee. All cred- itors of the maker of such deed of trust shall, before receiving pay- ment of any amount from the said trtistee, file with the clerk of the sui^erior court a statement under oath that the amount claimed by him is justly due, after allowing all credits and ofPsets, to the best of his knowledge and bdief. 1893, cr453, s. G. 973. Trustee to file quarterly accounts; close trust in twelve months. The trustee, whether named in the deed of trust or appointed by a clerk of a superior court, shall within three months from the registration of such deed of trust, file with the clerk of the superior court of the county in which the same is registered an account under oath, stating in detail his receipts and disbursements and his action as trustee, and at each succeeding period of three months he shall file a like account, and within twelve months he shall file his final account of his administration of his trust. The clerk of the superior court shall have power upon good cause sho^^ni to extend the time within which the quarterly and final accounts herein provided for are to be filed. 1893, c. 453, s. 5. XoTE. For violation of duty by trustee, see s. 3689. VI. Contracts to be Wrtttex. 974. Charging executor personally, or one with debt of another. 'So action shall be brought whereby to charge an e-xecutor, administra- tor or collector upon a special promise to answer damages out of his own estate or to charge any defendant upon a special promise tn answer the debt, default or miscarriage of another person, unless the agreement upon which such action shall be brought, or some mem- orandum, or note thereof shall be in writing, and signed by the party charged therewith or some other person theretinto by him hnvfully authorized. Code, s. 1552; R. C, c. 50, a. 15; 1826, c. 10; 29 Cliurles II., c. 3, s. 4. 262 975 CONVEYANCES— F7. Contracts to be Written. Ch. 18 975. With Indians. All contracts and agreements of every de- scription made with any Chei'okee Indian, or any person of Cherokee Indian blood within the second degree, for an amount equal to ten dollars or more, shall be 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 pres- ence of two Avitnesses, who shall also subscribe the same. Code, s. 1553; R. C, c. 50, s. 16. 976. For sale or lease of land. All contracts to sell or convey any lands, tenements or hereditaments or any interest in or concern- ing them, and all leases and contracts for leasing land for the purpose of digging for gold or other minerals, or for mining generally, of whatever duration ; and all other leases and contracts for leasing lands, exceeding in duration three years from the making thereof, shall be void unless said contract, or some memorandum or note thereof be put in writing and signed by the party to be charged therewith, or by some other person by him thereto lawfiilly author- ized. Code, ss. 1554, 1743; R. C. c. 50, s. 11; 29 Ch. II., c. 3, ss. 1, 2, 3; 1819, e. 1016; 1844, e. 44; 1868, e. 156, ss. 2, 33. Note. See s. 878. 977. Sales of liquors on credit. No retail liquor dealer shall sell to any person, on credit, liquors to a greater amount than ten dollars, unless the person credited sign a book or note, in the presence of a witness, in acknowledgTiient of the debt, under the penalty of losing the money so credited ; and in any action brought for recovery of such debt the matter of defense allowed by this section may be set up in the answer and given in evidence. Code, s. 1555; R. C, e. 79, s. 4; 1798, c. 501, s. 6. 978. Promise to revive debt of bankrupt. No promise to pay a debt discharged by any decree of a court of competent jurisdiction, in any proceeding in bankruptcy, shall be received in evidence unless such promise shall be in writing and signed by the party to be charged therewith. 1899, c. 57. Note. For requirement that new promise bars statute of limitations, see Civil Procedure, s. 371. VII. Registration Required. 979. Probate and registration supplies livery of seizin. All deeds, cdntracts m- leases, before registration, except those executed prior to January first, one thousand eight hundred and seventy, shall 979 CONVEYAXCES— T//. liegistmlion Eequired. Ch. 18 be acknowledged by the grantor, lessor or the person executing the same, or their signatures proven on oath by one or more witnesses in the manner prescribed by law, and all deeds executed and registered according to hnv shall be valid, and pass title and estates without livery of seizin, attornment or other ceremony whatever. Code, s. 1245; 1885, c. 147, s. 3; 29 Ch. II., c. 3; R. C, c. 37, s. 1; 1715. e. 7: 1756, c. 58, s. 3; 1838-9, e. 33; 1905, c. 277. 980. Conveyances, contracts to convey, and leases of land. No conveyance of land, or contract to convey, or lease of land for more than three years shall be valid to pass any property, as against creditors or purchasers for a valuable consideration, from the donor, bargainor or lessor, but from the registration thereof within the county where the land lieth : Provided, the provisions of this section shall not a]iply to contracts, leases or deeds executed prior to !March first, one thousand eight hundred and eighty-five, until the first day of January, one thousand eight hundred and eighty-six ; and no purchase from any such donor, bargainor or lessor shall avail or pass title as against any unregistered deed executed prior to the first day of December, one thousand eight hundred and eighty-five, when the person holding or claiming under such Tmregistered deed shall be in the actual possession and enjoyment of such land, either in person or by his tenant at the time of the execution of such second deed, or when the person, claiming \mder or taking such second deed, had at the time of taking or purchasing under such deed actual or constructive notice of such unregistered deed, or the claim of the per.son holding or claiming thereunder. Code, s. 1245: 1885, c. 147, s. 1. 981. Deeds executed prior to January first, one tfiousand eight hundred and seventy. Any person holding any unregistered deed or claiming title tliercunder, executed prior to the first day of Janu- ary, one thousand eight hundred and seventy, may have the same registered without proof of the execution thereof: Provided, that such person .shall make an affidavit before the officer having jurisdiction to take probate of such deed, that the grantor, bargainor or maker of such deed, and the witnesses thereto are dead or can not he found, and that he can not make proof of their handwriting: Provided, that it shall also be made to appear by affidavit that affiant Ixdieves sucii deed to be a bona fide deed and executed by the grantor therein named : And ))r()vided further, that this section shall not interfere with vested rights nor shall a deed so admitted lo record be used as evidence in any action now pending. Said affidavit shall be written ujion or attached to such deed, and the same, together witli such deed, shall be entitled to registration in the same manner and with tlie same effect as if proven in the manner prescribed by law for otlier deeds. 1885, c. 147, s. 2; 1905, c. 277. 264 . 982 CONVEYAXCES— 777. Begistration Required. Ch. IS 982. Mortgages and deeds of trust. jSTo deed of trust or mort- gage for real or personal estate shall be valid at law to pass any prop- erty as against creditors or jjurcliasers for a valuable consideration from the donor, bargainor or mortgagor, but from the registration of such deed of trust or mortgage in the county where the land lieth ; or in case of personal estate where the donor, bargainor or mort- gagor resides; or in case the donor, bargainor or mortgagor shall reside out of the state, then in the county where the said personal estate, or some part of the same, is situated ; or in case of choses in action, where the donee, bargainee or mortgagee resides. Code, s. 1254; E. C, c. 37, s. 22; 1829, c. 20. 983. Conditional sales of personal property. All conditional sales of personal property in which the title is retained by the bar- gainor, shall be reduced to writing and registered in the same manner, for the same fees and with the same legal effect as is provided for chattel mortgages, in the county where the purchaser resides, or, in case the purchaser shall reside out of the state, then in the county where the said personal estate or some part thereof is situated ; or in case of choses in action, wliere the donee, bargainee or mortgagee resides. Code, s. 1275; 1891, c. 240; 1883, c. 342. 984. Conditional sales of railroad property. Whenever any rail- road equipment and rolling stock shall hereafter be sold, leased or .loaned on the condition that the title to the same, notwithstanding the possession and use of the same by the vendee, lessee, or bailee, shall remain in the vendor, lessor or bailor until the terms of the contract, as to the payment of the installments, amounts or rentals payable, or the performance of other obligations thereunder, shall have been fully complied with ; such contract shall be invalid as to any subsequent judgment creditor, or any subsequent purchaser for a valuable consideration without notice, unless — 1. The same shall be evidenced by ^vriting didy acknowledged before some person authorized to take acknowledgments of deeds. 2. Such writing shall be registered as mortgages are registered, in the office of the register of deeds in each county in which such vendee, lessee or bailee does business. 3. Each locomotive or car so sold, leased or loaned shall have the name of the vendor, lessor, or bailor, or the assignee of such vendor, lessor or bailor plainly marked upon both sides thereof, followed by the word owner, lessor, bailor or assignee, as the case may be. This section shall not apply to or invalidate any contract made before the twelfth day of March, one thovisand eight hundred and eighty-three. Code, s. 2006; 1883, c. 416. 265 985 CONVEYANCES— r//. Begistration Required. Ch. IS _ 985. Marriage settlements. All marriage settlements and other " marriage contracts, whereby any money or other estate shall be secured to the wife or husband, shall be proved or acknowledged and registered in the same manner as deeds for lands, and shall be valid against creditors and purchasers for value only from registration. Code, ss. 1269, 1270, 1821; 1885, c. 147; R. C, e. 37, ss. 24, 25; 1785, c. 238; 1871-2, c. 193, s. 12. 986. Deeds of gift. All deeds of gift of any estate of whatever nature shall within two years after tlie making thereof be proved in due form and registered, or otherwise shall be void, and shall be good against creditors and purchasers for value only from the time of registration. Code, s. 1252; 1885, c. 147; E. C, e. 37, s. 18; 1789, c. 315, s. 2. 987. Powers of attorney. Every power of attorney, wherever made or concerning whatsoever matter, may, on acknowledgment or proof of the same before any competent official, be registered in the county wherein the property or estate which it concerns is situate, if such power of attorney relate to the conveyance thereof ; if it does not relate to the conveyance of any estate or property, then in the ■ county in which the attorney resides or the business is to be trans- acted. ■ Code, s. 1249; 1899, c. 235. s. 15. 988. Certified copies may be registered; used as evidence. A duly certified copy of any deed or writing, required or allowed to be- registered, may be registered in any county; and the registry or duly certified copy of any deed or wi-iting when registered in the county where the land is situate may be given in evidence in any court of the state. Code, s. 1253; 1858-9, e. 18, s. 2. Note. For records of court to prove deed, see ss. 337, 338. I VIII. Peobatk. 989. Before what officers. The execution of all deeds of convey- ance, contracts to buy, sell or convey lands, mortgages, deeds of trust, assignments, powers of attorney, covenants to stand seized to the use of another, leases for more than three years, releases and any and all instruments and writings of whatsoever natuirc and kind which are required or allowed by law to be registered in the office of the register of deeds or which may hereafter be required or allowed by law to be so registered, may be proven rovcd or ackiiowledgeil and ])rivy cx.Tmination of any uuirried woman, when 995 CONVEYANCES— 17/7. Prohate. Ch. 18 necessary, taken before any justice of the peace of the county of said clerk, which clerk may then, under his hand and otHcial seal, certify to the genuineness thereof, or before any judge of the superior court or justices of the supreme court, and tlie said instrument probated and ordered to be registered by such judge or justice in like manner as is provided by law for probates by clerks of the superior court in other cases. 1891, c. 102; 1893, c. 3. Note. See proviso, s. 999. 996. Subscribing witness, or maker subpoenaed, when. The grantee or other party to an instruuK'nt required or allnwed by law to be registered may at his own expense obtain from the clerk of the superior court of the county in which the instrument is required to be registered a subpoena for any or all of the makers of or subscribing witnesses to such instrument, commanding such maker or subscril> ing witness to appear before such clerk at his office at a certain time to give evidence concerning the execution of the instrument. Such subpoena shall be directed to the sheriff of the county in which the person upon whom it is to be served resides. If any person refuses to obey such subpoena he shall be liable to a fine of forty dollars or to be attached for contempt by the clerk, upon its being made to appear to the satisfaction of the clerk that such disobedience was intentional, under the same rules of law as are prescribed in the cases of other defaulting witnesses. Code, s. 1268; 1899, c. 235, s. 16; 1897, e. 28. 997. Proof of witness' handwriting, when. If an instrument required or permitted by law to be registered have a subscribing wit- ness and such witness be dead or out of the state, or of \msound mind, the execution of the same may be proven before any official authorized to take the proof and acknowledgment of such instrument by proof of the handwriting of such subscribing witness or of the handwriting of the maker, but this shall not be proof of the execution of instruments by married women. 1899, e. 235, s. 12. 998. Proof of maker's handwriting, when. If any instrument required or pcnnitted by law tr> lie registered have no subscribing wit- ness, the execution of the same may be proven before any official authorized to take the proof and acknowledgment of such instrument by proof of the handwriting of the maker, but this shall not aii]5ly to proof of execution of instnunents by married women. 1899, c. 235, s. 11. 999. Clerk or deputy must pass on certificate of other officer. Whenever the proof or ncknowledgineut of tlic rxccutinn of any 269 999 CONVEYANCES— F77/. Prohaie. Cli. is instniment, required or permitted by law to be registered, is had before any other official than the clerk or depiity clerk of the superior court of the county in which such instrTiment is offered for registra- tion, the clerk or deputy clerk of the superior court of the county in which the instrument is offered for registration shall, before the same shall be registered, examine the certificate or certificates of proof or aclvnowledgmeiit appearing upon the instrument, and if it shall appear that the instrument has been duly proven or acknowledged and the certificate or certificates to that effect are in due form he shall sn adjudge and shall order the instrument to be registered together with the certificates : Provided, that if the clerk of the superior court is a party to or interested in s\ich instruinent such adjudication and order of regisrration shall be made by his deputy or by the clerk of the superior court of some other county of this state, or by some justice of the supreme court of this state or some judge of the superior court of this state : Provided further, the aeknowledgnnenf of such instruments may also be made before a justice of the peace of said county, and the adjudication of the sufficiency of the certificate of said justice may be made by said clerk or his deputy. 1899, c. 235, s. 7; 1905, c. 414. 1000. Of deed by husband whose wife is insane. When a deed executed by a married man whose wife is insane or a lunatic, together with the certificate of the superintendent of the asylum and the certifi- cate of the clerk taken as prescribed in section nine hundred and fifty- nine, shall be offered for jirobate before the clerk of the superior court of the county in which the land conveyed is situated, and the execution of such deed shall be acknowledged or proved, the clerk shall adjiidge whether the certificates of the superintendent and the clerk are in due form, and if adjudged to be in due form he shall order the registra- tion of the deed and certificates. 1905, c. 138, s. 2. IX. Forms. 1001. Adjudication and order of registration. The form of adju- dication and order of registration required by section nine hundred and ninety-nine shall be substantially as follows: North Carolina, County. The foregoing (or annexed) certificate of (here give name ami official title of the officer signing the certificate passed upon) is adjudged to be correct. Let the instruinent and the certificate be registered. This day of , A. D 1899, e. 23.5, s. 7. (Signature of officer.) 1002 CONVEYANCES— 7X. Fonxs. Ch. 18 1002. Acknowledgment by grantor. Where the instrument shall be acknowledged by the grantor or maker, the form of acknowledg- ment shall be in substance as follows : North Carolina, County. I (here give the name of the official and his official title), do hereby certify that (here give. the name of the grantor or maker) personally appeared before me this day and acknowledged the due execution of the foregoing instrument. Witness my hand and (where an official seal is reqiiired by law) official seal this the . . . day of (year). (Official seal.) (Signature of officer.) 1003. Private examination of wife. When an instrument purports to be signed by a married woman, the form of certificate of her acknowledgment and private examination before any officer aiithor- ized to take the same, shall be in substance as follows : North Carolina, County. I (here give name of the official and his official title), do hereby certify that (here give name of the married woman who executed the instrument), wife of (here give husband's name), personally appeared before me this day and acknowledged the due execution of the foregoing (or annexed) instrument; and the said (here give married woman's name), being by me privately examined, separate and apart from her said husband, touching her voluntary execution of the same, doth state that she signed the same freely and volun- tarily, without fear or compulsion of her said husband or any other person, and that she doth still voluntarily assent thereto. Witness my hand and (when an official seal is required by law) official seal, this. . . . (day of month), A. D (year). (Official seal.) (Signature of officer.) 1899, c. 235, s. 8; 1901, c. 637. 1004. Private examination and aclublic in any other state, or before any commissioner of deeds and attidavits for the state of Xorth Carolina in any other state, and sealed with the common seal of the corporation and attested by the treasurer, are hereby ratified and confirmed and declared to be good and valid deeds for all pnrjioses. AVherever any such deeds hereto- fore executed by any corporation of this state by the president thereof and attested by the treasurer of said corporation, and sealed with the common seal of said corporation, have been proven or acknowledged before any notary ])ublic of any state, or before any commissioner of deeds and affidavits for the state of North Carolina in any other state, and said acknowledgment or probation has boon duly jiassed upon by ] 1028 CONVEYANCES— X. Probates Validated. Ch. 18 any deputy clerk and adjudj^ed to be correct and sufficient and in due form, and ordered to be registered, said acknowledg:iient, probate and registration are hereby ratified and confirmed, and said deed is de- clared to be legally executed and good and valid in law, and no fur- ther registration of such deeds shall be necessary. All such deeds and conveyances proven or acknowledged and registered as aforesaid, or certified copies of the same, may be used as evidence of title to the lands therein conveyed in the trial of any suits in any of the courts of this state where the title of said lauds shall come in. controversy. 1905. c. 307. Note. See also, s. 1248. 1029. By de facto officers in Greene. The probate of all instru- ments requiring registration made by Alexander Taylor while actr ing as and being the de facto clerk of the superior court of Greene county during the month, of December, one thousand eight hundred and ninety-eight, and during the year one thousand eio-ht hundred and ninety-nine, are hereby declared valid ; and the registration of all instruments requiring registration as made by W. E. Murphrey while acting as the de facto register of deeds of Greene coimty, during the month of December, one thousand eight hundred and ninety-eight, and during the year one thousand eight hundred and ninety-nine, are hereby declared valid. 1901, c. 369. 1030. By clerks of wrong county. All deeds acknowledged or proven, prior to January twenty-first, one thousand eight hundred and ninety-one, by tlie grantor, maker or subscribing witness before any clerk of the superior court or of the inferior or criminal court, or before a notary public or justice of the peace of a county within this state wherein the land conveyed did not lie, and where said gTantor, maker or suhscribing witness did not reside, are declared sufficiently proven and the registration valid. 1891, c. 12. Note. Appointment and discharge of deputies, see Clerk Superior Court, ss. 898, 899. Clerks responsible for acts of deputies in probating conveyances, see Clerk Superior Court, s. 900. For law making property of corporations under mortgage liable for certain debts, see s. 1131, XT. Trustees. 1031. Trustee or mortgagee dead, personal representative exe- cutes power. When the mortgagee in a mortgage, or the trustee in a deed in trust executed for the purpose of securing a debt contain- ing a power of sale, shall die before the payment of the debt secured 1031 CONVEYANCES— A7. Trustees. Cli. IH in such mortgage or deed in trust, all the title, ritrhts, powers and duties of such mortgagee or trustee shall pass to and devolve u])on tlie executor or administrator of such mortgagee or trustee, including the right to bring an action of foreclosure in any of the courts of this state as prescribed for trustees or mortgagees, and in such action it shall not be necessary to make the heirs at law of such deceased ukmI- gagee or trustee parties thereto. 1901. e. 186: 1887, c. 147; 1895. e. 4.31 ; l!l(t."). c A-2:-,. 1032. Foreclosures by representative of deceased mortgagees. validated. In all actions which may have been bnmglit or ])roscciUc(l prior to the fourth day of ]\Iarch, one thcmsand nine hundred and tivc. for the foreclosure of any mortgage or deed in trust by any executor or administrator of any decx?ased mortgagee or trustee where the heirs of the mortgagor have been duly made parties and regular and orderly decrees of foreclosure entered by the court and sale had by a commis- sioner appointed by the court for that purpose and deed made after confirmation, the title so conveyed to purchaser at such judicial sale shall be deemed and held to be vested in such purchaser, whether the heir of such deceased mortgagee or trustee shall have been a part}- t'l such foreclosure proceeding or not, and such heir of any deceased mortgagee shall be estopjied to bring or prosecute any further action against such purchaser for the recovery of such property or fore- closure of such mortgage or deed in trust. 1905, e. 425. s. 2. 1033. Surviving mortgagee executes power, lu all mortgages and deeds of trust wherein two or more persons, as trustees or otherwise, are given power to sell the property therein conveyed or embraced, and one or more of such persons shall be dead, any one of the per- sons sun'iving having such power may make sale of such projierty in the manner directed in such deed, and execute such assurances of title as are proper and lawful under the power so given; and the act of such person, in pursuance of said power, .shall be as valid and binding, as if the same had been done by all the persons on whom the power was conferred. lSSr>, c. 327. s. 2. 1034. When succeeding guardian executes power. When a gu^ardian to Avhom a mortgage has been executed has died or been removed or resigned before the ]iayment of the debt secured in such mortgage, all the rights, ])owers and duties of such UKU'tgagee shall devolve u])on the succeeding guardian. 190.-). 0. 4:i3. 1035. Power executed by agent, appointed orally or by writing. All sales of projierty, real or jicrsonal, under a power of sale con- 282 1035 CONVEYANCES— AT. Trustees. Ch. 18 tained in any mortgage or deed of trust to secure the payment of money, by any mortgagee or trustee, through an agent or attorney for that purpose, by such mortg-agce or trustee, a)ipointed orally or in writing, M-hether such writing has been or shall be registered or not, shall be valid, whether or not such mortgagee or trustee shall have been or shall be present at such sale. 1805, c. 117. 1036. Infant trustees convey, how. Whenever any infant shall be seized or possessed of any estate whatever in trust, whether by way of mortg-ago or otherwise, for another person who may be enti- tled in law to have a conveyance of such estate, or may be declared to be seized or possessed, in the course of any proceeding in the superior court, the court may decree that tlie infant shall convey and assure such estate, in such manner as it may direct, to such other person ; and every conveyance and assurance made in pursu- ance of such decree shall be as effectual in law as if made by a per- son of full age. Code, s. 1265; R. C, c. 37, s. 27; 1821, c. 1116, ss. 1, 2. 1037. When clerk appoints a new trustee. AVhen the sole or last surviving trustee named in a will or deed of trust has died, removed from the county where the will was probated or deed executed and from the state, or in any way become incompetent to execute the said trust, or is a nonresident of this state, the clerk of the superior court of the county wherein the said will was probated or deed of trust was executed is authorized and empowered, in proceedings to which all persons interested shall be made parties, to appoint some discreet and competent person to act as trustee and execute the trust according to its true intent and meaning, and as fully as if originally appointed: Provided, that in all actions or proceedings had under this section prior to January first, one thousand nine hundred, before the clerks of the superior court in which any trustee was appointed to execute a deed of ti-ust where any trustee of a deed of trust has died, removed from the county where the deed was executed and from the state, or in any way become incompetent to exe- cute the said trust, whether such appointment of such trustees by order or decree, or otherwise, was made upon the application or petition of any person or persons ex-parte, or whether made in pro- ceedings where all the proper parties were made, are in all things confirmed and made valid so far as regards the parties to said actions and proceedings to the same extent as if all proper parties had originally been made in such actions or proceedings. Code, s. 1276; 1901, c. .576; 1869-70, c. 183; 1873-4, c. 126. Note. See ss. IGG, 1032. 1038 CONVEYA^TCES— X/. Trustees. Ch. IS 1038. Executor of mortgagee may renounce; trustee appointed by clerk. The executor or administrator of any deceased niortg'agee or trnstee in any mortgage or deed of trust heretofore or hereafter executed may renounce in writing before the clerk of the superior court before whom he qualifies, the trust under the mortgage or deed of trust at the time he qualifies as executor or administrator, or at any time thereafter before he intermeddles with or exercises any of the duties imder said mortgage or deed of trust, except to preserve the property until a tnistee can be appointed, and in every such case of renunciation the clerk of the sujDerior court of any county wherein the said mortgage or deed of trust is registered shall have power and authority, upon proper proceedings instituted before him, as in other cases of special proceedings, to appoint some person to act as trustee and execute said mortgage or deed of trust. That the clerk of the superior court, in addition to recording his proceedings in his book of orders and decrees, shall enter the name of the substituted trufetee or mortgagee on the margin of the deed in trust or the mortgage in the book of the ofiice of the register of deeds of said county. 1905, c. 128. XII. Chattel Mortgage. 1039. Form of. Any person indebted to another in a sum to be secured, not exceeding at the time of executing the instrmnent herein provided for the sum of three hundred dollars, may execute a chattel mortgage in form substantially that which follows : I, , of the county of in the state of North Carolina, am indebted to , of county, in said state, in the sum of dollars, for which he holds my note to be due the. . . .of , A. D. 19. . . ., and to secure the payment of the same, I do hereby convey to him these articles of personal property, to-wit : but on this special trust, that if I fail to pay said debt and interest on or before the. . . .day of A. D. 19. . . ., then he may sell said property, or so much thereof as may be necessary, by public auction for cash, first giving twenty days' notice at three public places, and apply the proceeds of such sale to the discharge of said debt and interest on the same, and pay any surplus to me. Given under mv hand and seal, this . . dav of , A. D. 19 ' [Seal] Code, s. 1273; 18701, c. 277. 1040. Registration of, notice of sale under. Such chattel mort- gage shall be good to all intents and jiurjioses when the same shall lie duly registered according to law, Init no sale thereunder shall be 284 1040 CONVEYANCES— Z//. Chattel Mortgage. Ch. 18 made without giving at least twenty days pnljlic notice of tlie time and place of such sale. Code, ss. 1273, 1274; 1870-1, e. 277, ss. 1, 2. Xote. For fees for probate and registration, see ss. 2773, 2776. For joinder of chattel mortgage and lien bond, see Liens, s. 2055. 1041. Mortgages of household and kitchen furniture. All con- veyances of household and kitchen furniture by a married man, made to secure the payment of money or other thing of value, shall be void, unless the wife join therein and her privy examination be taken in the manner prescribed by law in conveyances of real estate. 1891, c. 91. Note. For fees for, see ss. 2773, 2770. Note. For lien bonds, see Liens. XIII. Mortgage Sales. 1042. Advertised at courthouse door. All property, real and per- sonal, sold under the terms of any mortgage or other contract, expressed or implied, whether advertised in some newspaper or otherwise, shall be advertised by posting a notice at some conspicu- ous place at the courthouse door in the county where the property is situated, such notice to be posted for at least twenty days before the sale, unless a shorter time be expressed in the contract. 1889, c. 70. Note. For notice of sale under chattel mortgage, see s. 1040. See also, s. 641. 1043. Description of property in advertisements, in sales of real estate under deeds of trust or mortgages, it shall be the duty of the trustee or mortgagee making such sale to fully describe the premises in the notice required by law, substantially as the same is described in the deed or authority under which said trustee or mortgagee makes such sale. 1895, c. 294. 1044. Power of sale barred when. The power of sale of real property contained in any mortgage or deed of trtist for the benefit of creditors shall become inoperative, and no person shall execute any such power, when an action to foreclose such mortg'age or deed of trust for the benefit of creditors would be ban-ed by the statute of limitations. Wherever an action to foreclose any such mortgage or deed of tnist is now barred by the statute of limitations, the authority to execute the power of sale contained therein shall be baiTed on the first day of January, one thousand nine hundred and seven. Note. For who can execute the power, see s. 1031 et seq. 285 1045 C0KVEYA:N'CES— .Y/F. Eevocadon and Dkch. Ch. IS XIV. Revocation and DiscirAEOE. 1045. Deeds to persons not in esse revoked. The gi-antor in any voluntary coiivevaiiee in which some future interest in real estate is conveyed or limited to a person not in esse, may at any time before he comes into being, revoke by deed such interest so conveyed or limited. This deed of revocation shall be registered as other deeds ; and the grantor of like interests for a valuable consideration may, with the joinder of the person from whom the consideration moved, revoke said interest in like manner. 1893, e. 498. 1046. Mortgages and deeds of trust released, how. Any deed of trust or mortgage which hath been or which hereafter may be registered in the manner required by law, may be discharged and released in the following manner, to-wit : 1. The trustee or mortgagee or his or her legal representative, or the duly authorized agent or attorney of such trustee, mortgagee or legal representative may, in the presence of the register of deeds or his deputy, acknowledge the satisfaction of the provisions of such deed of trust or mortgage, whereupon it shall be the duty of the regis- ter or his deputy forthwith to make upon the margin of the record of such deed of trust or mortgage an entry of such acknowledginent of satisfaction, which shall be signed by the said trustee, mortgagee, legal representative or attorney, and witnessed by the register or his deputy, who shall also affix his name thereto ; or, 2. Upon the exhibition of any mortgage, deed in trust or other instrument intended to secure the payment of money, accompanied with the bond or note, to the register of deeds or his deputy, where the same is registered, with the endorsement of payment and satis- faction appearing thereon by the payee, mortgagee, trustee or assignee of the same, the said register or his deputy shall cancel the mortgage or other instrument by entry of "satisfaction" on the margin of the record ; and the person so claiming to have satisfied the debt may retain possession of the bond and mortgage or other instrument: Provided, if the register or his deputy shall require it he shall file a receipt to him showing by whose authority the mortgage or other instrument was cancelled. Every such entry thus made by the register of deeds or his deputy, and every such enti-y thus acknowledged and witnessed shall operate and have the same effect to release and discharge all the interest of such trustee, mortgagee or representative in such deed or mortgage, as if a deed of release or reconveyance thereof had been duly executed and recorded. Codp, s. I'iTl; 1891, c. ISO; 1S93, c. M ; 1901. c. 40: 1870-1, c. 217. 1047 CORONERS. Ch. 19 CHAPTER 19. CORONERS. (Sections 1047—105.3.) ! 1047. How elected; clerk appoints for special cases. In each I comity a * * * coroner slinll be elected by the qiialified voters thereof, as is prescribed for members of the general assembly, and shall hold their offices (his office) for two years. * * * When there is no coroner in a county, the clerk of the superior court for the county may appoint one for special cases. Const., Art. IV, s. 24. (In case of a vacancy the county commissioners appoint, s. 1321.) 1 048. Oath of office to be taken. Every coroner, before entering upon the duties of his office, shall take and subscribe to the oaths prescribed for public officers, and an oath of office. Code, s. 601. 1049. Vacancy, clerk may appoint special, whenever there is a , vacancy existing in the office of coroner in any county, and it shall be made to appear by the affidavit of some responsible person that a deceased person whose body has been found within the county probably came to his death by the criminal act or default of some person, it shall be the duty of the clerk of the superior court of such county to appoint some suitable person as special coroner to hold an inquest over the body of the deceased. 1903, c. 661. 1050. Powers, penalties and liabilities of special. The special coroner api)ointed under the provisions of the preceding section shall be invested with all the powers and duties conferred upon the several coroners in respect to holding inquests over deceased bodies, and shall be subject to the penalties and liabilities imposed on the said coroners. 1903, c. 661, s. 2. 1051. Holds inquests; when physician summoned. It shall be the duty of the several enroners, whenever it is made to appear, by the affidavit of some responsible person, that the deceased probably came to his death by the criminal act or default of some person or persons, to go to the place \\'here the body of such deceased person is and forthwith to summon a jury of si.\ good and lawful men : whereupon the coroner, upon oath of said jury at the said place, shall make inquiry when, how and by what means such deceased person 1051 COEONERS. Ch. I'.i came to his death, and his name if it was kllo^vn, together with all the material circumstances attending his death ; and if it shall appear that the deceased was slain, then who was guilty either as principal or accessory, if known, or in any manner the cause of his death. And as many persons as are found culpahle, by incpiisition in manner aforesaid, shall be taken and delivered to the sheriff and committed to jail; and such persons as are found to know anything of the matters aforesaid and are not culpable themselves, shall be bound in a recognizance with sufficient surety to appear at the next superior court to give evidence; of all which matters and things the coroner must make a record of his inquisition sig-ned by the jurors, and return the same to the next superior court of his proper coimty. It shall be the dntj of every coroner, when the jury investigating the case shall reqiiire it, to summon a physician or surgeon, cxct'])t tiiat in Buncombe county, when the coroner is a physician or surgeon, he shall, if requested by one or more of the juroi's, make the investiga- tion. Code, s. 657; 1903, c. 586; 1899, c. 478; 1905, e. 028. 1052. Acts as sheriff, when; special coroner. If at any time there be no person properly qualified to act as sheriff in any county, the coroner of such county is hereby required to execute all process and in all othea- things to act as sheriff, until some person shall be appointed sheriff in said county ; and such coroner shall be under the same rules and regulations, and subject to the same forfeitures, fines, and penalties as sheriffs are by law, for neglect or disobedience of the same duties. And if at any time the sheriff of any county be interested in or a party to any proceeding in any court, and if there be no coroner in such county, or if the coroner be interested in any such proceeding, then the clerk of the court from which such process issues shall appoint some suitable person to act as special coroner to execute such process, and siich special coroner shall be under the same rules, regulations and penalties as hereinabove pro- vided for. Code, s. 658; 1891, c. 173. 1053. Compensation of jurors at inquest. All persons who may be summoned to act as jurors in any inquest held by a coroner over dead bodies, and who, in obedience thereto, shall appear and act as such jiirors, shall be entitled to the same compensation in per diem and mileage as is allowed by law to jurors acting in the superior courts. The coroners of the respective counties are liereby authorized and empowered to take proof of the number of days of service of each juror so acting and also of the number of miles traveled by such juror in going to and returning from such place of inqiu^st, and shall Ki.V] CORONEES. Ch. 19 tile with the board of commissioners of the county a correct account of the same, which shall be, by such commissioners, audited and paid in the manner provided for the pay of jurors acting in the superior courts. Code, ss. 659, 660. Note. For bond of, see Bonds, s. 299. CHAPTER 20. CORPORATION COMMISSION. Sect ions. I. 11. III. Court, Investigations, Powers, 10.54- 1 HA 4 -1063 1 Afip; 1066- — lUOO -1073 IV. Appeals, 1074- -1081 V. Injunction, 1082- -1085 VI. Penalties, 1086- -1093 VII. Jurisdiction, 1094- -1103 VIII. Rates, 1104- -1112 IX. Duties, 111.3- -1118 X. Ta.x commissioners. 1119- -1127 I. Court. 1054. Court of record. There shall be a court of record, known as the "corporation commission." Such court shall adopt a seal, and shall have all of the powers and jurisdiction of a court of general jurisdiction as to all subjects embraced in this chapter. The mem- bers and clerk thereof may administer oaths. 1899, c. 104, ss. 1, 31. 1055. Number of commissioners. The court shall consist of three commissioners, who shall be elected by the qualified voters of the state, in the same manner as other state officers are elected. The court shall organize by the election of one of the commissioners as chairman. 1899, c. 164, s. 1. 1056. Term of office. The term of office of the commissioners shall begin on the first day of January next after their election, and Rev. Vol. 1—15 289 1056 COEPOKATIO:Nr COMMIS.— 7. Court. Ch. 20 shall continue for six years and until their successors are elected and qualified. One member of the court shall be elected at each general election. 1899, c. 164. 1057. Vacancy. If for any cause there shall be a vacancy in the comniission, the governor shall apjioint to such ^•acancy. Such appointee shall hold until the election and qualification of his suc- cessor, who shall be elected at the next general election, after the vacancy occurred. The person so elected shall hold office for the unexpired term. 1899, c. 1G4; 1901, c. 194. 1058. Qualification of commissioners. It shall be unlawful for any member or official of said court to jointly, severally, or in any other way, either directly or indirectly, hold any stock or bond, or be the agent, attorney or employee, or have any interest in any way, in any steamboat, railroad, canal, navigation, express, telegraph, tele- phone, bank or building and loan company, or association. If any member or official of said court shall, during the term of his office as distributee or legatee, or in any other way, have or become entitled to any stock or bonds or interest therein of any such company he shall at once dispose of the same, and upon failure to do so shall forfeit his office, and may be suspended by the governor. 1899, c. 164. 1059. Oath of office. The members of the court, in addition to the oath to support the constitution and laws of the United States and the constitution and laws of the state of North Carolina, shall take, to be administered by one of the judges of the supreme court, the following oath of office, which oath shall be signed by such commis- sioners and attested by said judge and recorded in the office of the secretary of state: "I do solemnly swear (or affirm) that I am not the owner of any steamboat or of any stock or bond of any railroad, navigation or canal company, express, telegraph or telephone com- pany, or of any bank or building and loan association, or the agent or attorney or employee of any such company or association ; that I have no interest in any way in any such company or association, and that I will well and faithfully execute the duties of my office as a member of the corporation commission and as state tax commissioner to the best of my knowledge and ability, without fear, favor, malice, reward or the hope of reward. So help me, God." 1899, c. 164, 8. 1; 1903, c. 251, s. 3. 1060. Place of meeting. The court shall be liehl in the city of Tlalcigh. Sj)ecial sessions may be lield at any ]i1aauies, shall have authority to make special rates for the purpose of developing all manufacturing, mining, milling and internal improvements in the state. Nothing in this chapter shall prohibit railroad or steamboat com- panies from making special passenger rates with excursion or other parties, also rates on such freights as are necessary for the comfort of such i^arties, subject to the ajjproval of the commission. 1899, c. 164, ss. 2, 14; 1903, c. 683. 1100. Demurrage; storage; placing and loading of cars. The commission shall make rules, regulations and rates governing demur- rage and storage charges by railroad companies and other transpor- tation companies ; and shall make rules governing railroad companies in the placing of cars for loading and unloading and in fixing time limit for delivery of freights after the same have been received by the transjjortation companies for shipment. 1903, c. 342. 1101. May fix rate of speed trains may run ttirough a town; petition to be filed; procedure. If any railroad company shall be of the opinion that an ordinance of a city or town through which a line of its railroad passes, except in the counties of Cumberland, Rockingham, Union and Wayne, regulating the speed at which trains may run while passing through said city or town, is unreasonable or oppressive, such railroad company may file its ]ietition before the cor- poration commission, setting forth all the facts, and asking relief against such ordinance, and that the corporation commission pre- scribe the rate of speed at which trains may run throiigh said munici- pality. Upon the filing of the petition a copy thereof shall be mailed, in a registered letter, to the mayor or chief officer of the town or municipality, together with a notice from the corporation com- mission, setting forth that on a day named in the notice the petition of the railroad company will be heard, and that the city or town named in the ]ietition will be heard at that time in opposition to the prayer of the petition. And \ipon the return day of the notice the corporation commission shall hear the petition: Provided, that any hearing granted by the corporation commission, as authorized by tliis section, shall be had at the town, city or locality where the conditions complained of are alleged to exist, or some member of the said commission shall take evidence both for the petition and against it, at such city, town or locality, and report to the full com- mission before any decision is made by the connnission. 1903, c. 552. , 1103 COEPORATIOJsT COMMIS.— 17/. Jurisdiction. Cli. 20 1102. To pass on ordinance, and fix rate of speed. Either party, petitioner or respondent, sliall have the right to introduce testimony and to be heard by counsel, and the corporation com- mission, after hearing the petition, answer, evidence and argument, shall render judgment thereon. If the commission shall find that such ordinance is reasonable and just the petition shall be dismissed, and the petitioner shall pay all the costs to be taxed by the clerk to the corporation commission. If the corporation commission shall be of the opinion that the ordinance is imreasonable, it shall so adjudge; and in addition thereto it shall prescribe the maximum rates of speed for passing through such town. And thereafter the railroad company may run its trains through such town or city at speeds not greater than those prescribed by the corporation com- mission, and the ordinance adjudged to be unreasonable shall not be enforced against such railroad company. 1903, c. 552, s. 2. 1103. When costs on hearing to fix rate of speed in discretion of commission. If the judgment of the corporation commission shall be in favor of the petitioner, it shall be lawful for the corporation commission to make such order as to the payment of the costs as shall seem just. It may require either party to pay the same or it may divide the same. The costs in such proceeding shall be the same as are fixed by law for similar services in the superior court. 1903, c. 552, s. 3. VIII. Eates. 1104. How fixed. In fixing any maximum rate or charge, or tariff of rates or charges for any common carrier, person or corpora- tion subject to the provisions of this chapter the commission shall take into consideration if proved, or may require proof of, the value of the property of such carrier, person or corporation used for the public in the consideration of such rate or charge or the fair value of the service rendered in determining the value of the property so being used for the convenience of the public. It shall furthermore consider the original cost of the construction thereof and the amount expended in permanent improvements thereon and the present compared with the original cost of construction of all its property within the state; the probable earning capacity of such property under the particular rates proposed and the sum required to meet the operating expenses of such carrier, person or corporation and all other facts that will enable them to determine what ai-e reason- able and just rates, charges and tariffs. 1899, c. 164, s. 2, subsec. 1. 1105 CORPORATION COiOIIS.— 17//. Bates. Ch. 20 ': n05. What may be carried free. Nothing in this chapter shall prevent the carriage, storage or handling of property free or at reduced rates for the United States, states or municipal governments or for charitable or educational purposes; or for any corporation or association incorporated for the preservation and adornment of any historic spot, or to the employees or officers of such company or association while traveling in the performance of their duties, pro- vided they shall not travel further than ten miles one way on any one trip free of charge or to or from fairs or exhibitions for exhibi- tion thereat; or the free carriage of destitute and homeless persons transported by charitable societies, and the necessary agents em- ployed in such transportation, or the free transportation of per- sons traveling in the interest of orphan asylxmis or homes for the aged and infirm, or any department thereof, or ex-Confederate sol- diers attending annual reunions, or the iss\iance of mileage, excur- sion or commutation passenger tickets ; or to prohibit any common carrier from giving reduced rates to ministers of religion, or to municipal governments for the transportation of indigent persons, or to inmates of national homes or state homes for disabled volun- teer soldiers, and of soldiers' and sailors' orphan homes, including those about to enter and those retui'ning home after discharge imder arrangements with the boards of managers of said homes; or to prevent railroads from giving free carriage to their O'wm officers and employees and members of their families, or to prevent the principal officers of any railroad company from exchanging passes or tickets with other railroad companies for their officers or employees. Noth- ing in this section shall be construed to prevent or restrict transporta- tion companies from contracting with newspapers for advertising space in exchange for transportation over their lines to such an extent as may be agreed upon between the tAvo parties for said consideration. The commissioners and their clerks shall be transported free of charge over all railroads and other transportation lines which are \mder tlio supervision of the conunission ; and when traveling on official business they may take with them experts or other agents whose service they may deem temporarily of public importance. 1809, c. 164, s. 22; 1809. c. 642; 1901. c. 679. s. 2; 1901, c. 652; 190.5. c. 312. 1106. Revision of rates. The commission shall from time to time, and as often as circumstances may require, change and revise or cause to be changed and revised any schedules of rates fixed by the commission, or allowed to be charged by any carrier of freight, passengers, or express, or by any telegrapli or telephone company. 1899, c. 164. s. 7. 1107. Long and short hauls. It siiall be unlawful for any com- mon carrier to charge or receive any greater compensation in the 304 i](i7 COKPORATION COMMIS.— T7/7. //a/e.s. Ch. 20 aiiiircgate for the transportation of passengers or of like kind of pmperty under substantially similar circumstances and conditions for a shorter than for a longer distance over the same line in the same direction, the shorter being included within the longer dis- tance; but this shall not be construed as authorizing any common carrier within the terms of this chapter to charge and receive as great compensation for a shorter as for a longer distance: Provided, however, that upon application to the commission, such common car- rier may in special cases be authorized to charge less for longer than for shorter distances for the transportation of passengers or property ; and the commission may from time to time prescribe the extent to which such designated common carrier may be relieved from the operation of this section : Provided, that nothing in this chapter contained shall be taken as in any manner abridging or controlling the rates of freight charged by any railroad in this state for con- veying freight which comes from or goes beyond the boundaries of the state and on which freight less than local rates on any rail- road carrying the same are charged by such railroads. 1899, c. 104, s. 14. 1108. Contracts as to rates. All contracts ~and' Agreements between railroad companies as to rates of freight and passenger tariffs shall be submitted to the commission for inspection and cor- rection, that it may be seen whether or not they are a violation of law or of the rules and regulations of said commission, and all arrangements and agreements whatever as to the division of earn- ings of any kind by competing railroad companies sliall be sub- mitted to the commission for inspection and approval in so far as they affect the rules and regulations made by the commission to secure to all persons doing business with such companies just and reasonable rates of freight and j^assenger tariffs, and the com- mission may make such rules and regulations as to such contracts and agreements as may then be deemed necessary and proper, and any such agreements not approved by the commission, or by \'irtue of which rates shall be charged exceeding the rates fixed for freight and passengers, shall be deemed, held and taken to be violations of this chapter and shall be illegal and void. 1899, e. 164, s. C. 1109. Published. All carriers shall, whenever required by the commission, file with it a schedule of their rates of charges for freight and passengers, and the commission is authorized and reqtxired to publish the rates, or a summary thereof, in some con- venient form for the information of the public, and quarterly there- after the changes made in such schedttles if they deem it advisable. 1899, c. 164, s. 7. Rcv.Vol. I— 16 305 1110 COKPOKATIOX CO:\rMIS.— TV//. Bates. Ch. 20 1110. Interstate commerce. Upon the complaint of any person to the commission of any unjnst discrimination in carrying freight which comes from or goes beyond the boundaries of the state by any railroad company, whether organized under the laws of this state or of another state and doing business in this state, the com- mission shall investigate such complaint, and if the same be sus- tained it sliall be the duty of the commission to bring such complaint before the interstate commerce commissiim for redress in accordance with the provisions of the act of Congi-ess establishing the inter- state commerce commission. They shall receive upon application the services of the attorney general of the state and he sliall represent them before the interstate commerce commission. 1899, e. 164, s. 14. 1111. Duplicate freight receipts; charges stated; freight deliv- ered on payment of charges. All railroad companies shall on demand issue duplicate freight receipts to shippers in which shall be stated the class or classes of freight shipped, the freight charges over the road giving the receipt, and so far as practicable shall state the freight charges over the roads that carry such freight. ^Yhen the consignee presents the railroad receipt to the agent of the rail- road that delivers such freight such agent shall deliver the articles shipped upon payment of the rate charged for the class of freight mentioned in the receipt. 1899, c. 164, s. 17. 1112. Schedule of rates, evidence. The schedule containing rates fi.xed by the conunission shall, in suits brought against any com- pany wherein is involved the charges of any companj' for the trans- portation of any passenger or freight or cars or unjust discrimina- tion in relation thereto, be taken in all courts as prima facie evi- dence that the rates therein fixed are just and reasonable rates of charges for the transportation of passengers and freights and cars upon the railroads. All such schedules sliall be received and held in all suits as prima facie evidence, the schedules of the commission Avithout further proof than the production of the schedules desired to be used as evidence, with a certificate of the clerk of the com- mission that the same is a true copy of the schedule jirepared or approved by it for the railroad company or corporation therein named. 1899, e. 164, s. 7. IX. Duties. 1113. Notice given of violations; suits instituted. The conunis- sion, whenever in its judgment any cor|)oration has violated any law, sliall give notice thereof in writing to such corjioration, and, if 1113 CORPOKATIOX COMMIS.— /.Y. Duties. Ch. 20 the violation or neglect is continued after such notice shall forth- ^\ith present the facts to the attorney general, who shall take such liroceedings thereon as he may deem expedient. 1890, c. 164, s. 8. 1114. Fees paid to treasurer. All license fees and seal tax and all other fees jiaid into the office of the corporation commission shall be turned into the state treasury ; also all moneys received from tines and penalties. 1899, c. 164, ss. 33, 26. 1115. Record of receipts and disbursements. The commission shall keejD a record showing in detail all receipts and disbursements. 1899, c. 164, s. 34. 1116. Fiscal year. The fiscal year for which all reports shall be made which may be required of any railroad or transportation com- pany by the commission under this chapter shall end on the thirtieth of June. 1899, c. 164, s. 28. 1117. Report of commission. It shall be the duty of the com- mission to make to the governor annual reports of its transactions, and recommend from time to time such legislation as it may deem advisable under the provisions of this chapter, and the governor shall have one thousand copies of such report printed for distribution. 1899, c. 164, s. 27. 1118. Expenses. All the expenses of the commission, except as otherwise provided by law, including all necessary expenses for transportation incurred by the commissionei's or by their employees under their orders in making any investigation, or upon official business, or for any other purposes necessary for carrying out the provisions of this chapter, and necessary furniture, stationery, post- age, lights and heat, shall be allowed, and the auditor shall issue his warrant iipon presentation of itemized vouchers therefor ap- proved by the chairman of the commission : Provided, that the expenses allowed under this section shall not exceed three thousand six hundred dollars annually. 1899, c. 164, s. 32; 1899, c. 688. Note. For servant for commission, see s. 2762. X. Tax Commissioners. 1119. Tax commissioners. The members of the corporation com- mission shall constitute a board. of ''State Tax Commissioners," with the powers and duties prescribed by law. 1901, c. 7, ss. 1, 3; 1903, c. 251, ss. 1, 3. SOT 1120 CORPORATIOX COMMIS.— X. Tax Comrs. Ch. 20 1 1 20. Oath of office. The members of said board shall take and subscribe the constitutional oath of office, to be filed with the secretary of state. 1905, c. 590, s. 3. 1 121. Clerks to; and compensation. Said board may employ such clerks as in their judii'inent tliey may deem necessary to put into proper execution the provisions of this subcha]iter. The persons so elected shall hold office durine; the pleasure of said board, and a record of all the proceedings of said board shall be kept, -which record, with all other papers or proceedings of said Iward, shall be a part of the record of the board of corporation commissioners, and of which the clerk of said board of corporation commissioners shall be the lawful custodian, and who, when the board is not in session, shall also have oversight of the clerical force and have performed such duties as are directed by the board. 1905, c. 590, s. 2. 1122. When to meet; special meetings. Said board shall hold reg-ular meetings on the first Tuesday of March, June, July, August. September and October of each year, unless said dates are changed by order of the board, of which changes due notice shall be given, and may hold adjourned sessions as may be deemed necessary by it for the proper performance of the duties devolving iipon said board. The chairman may call special sessions of the board whenever and wher- ever in the state he may deem it advisable so to do, and shall call such- special sessions upon the written request of two members. 1905, c. 590, s. 5. 1 123. Examination of records, etc. The said board, and the mem- bers thereof, shall have access to all books, papers, documents, state- ments and accounts on file or of record in any of the departments of state, subject to the rules and regulations of the respective, depart- ments relative to the care of the public records. It shall have like access to all books, papers, docimients, statements and accounts on file or of record in counties, townships and municipalities. Said board shall have the right to subpoena witnesses, upon a subpoena signed by the chairman of said board, directed to such witnesses, which subpoena may be served by any person authorized to serve subp(pnas from courts of record in this state, and the attendance of witnesses may be com- pelled by attachment to be issued by any superior court upon proper showing that such witness has been properly subptenaed and has refused to obey such subpoena. The person serving such subptena shall receive the same compensation now allowed to sheriffs and other officers for sen-ing subpoenas. Said board shall have power to .1123 COEPOEATIOjS^ COMMIS.— A'. Tax Comrs. Ch. 20 examine witnesses under oath, said oath to be administered by any member of said board or by the secretary thereof. 1905, c. 590, s. 4. 1124. Duties of. l. To have and exercise general supervision over the tax-listers and assessing officers of this state^ and to take such measures as will secure the enforcement of the provisions of this sub- chapter, to the end that all the properties of this state liable to assess- ment for taxation shall be placed upon the assessment rolls and assessed at their true value in money. 2. To confer with and advise assessing officers as to their duties under this subchapter, and to institute proper proceedings to enforce the penalties and liabilities provided by law for public officers, officers of corporations and individuals failing to comply with this subchap- ter ; to prefer charges to the governor against assessing and taxation officers who violate the law or fail in the performance of their duties in reference to assessments and taxation ; and in the execution of these powers the said board may call upon the attorney general or any prosecuting attorney in the state to assist said board. ;]. To receive complaints as to property liable to taxation that has not been assessed or has been fraudulently or improperly assessed, and to investigate the same, and to take such proceedings as will correct the irregularity complained of, if found to exist. 4. To see that each county in the state be visited by at least one member of the board as often as is necessary, to the end that all com- plaints concerning the law of assessment and taxation may be heard; that information concerning its workings may be collected ; that all assessing and taxation officers comply with the law, and all violations thereof be punished, and that all proper suggestions as to amendments and change may be made. 5. To require from any register of deeds, clerk of court, mayor and clerk of towns, or any other officer in this state, on forms pre- scribed by said board of state tax commissioners, such anniial or other reports as shall enable said board to ascertain the assessed valua- tions of all property listed for taxation throughout the state under this subchapter ; the amount of taxes assessed, collected and returned delinquent, and such other matter as the board may require, to the end that it may have complete and statistical infonnation as to the practical operation of this subchapter. That every such officer men- tioned in this section who shall wilfully neglect or refuse to furnish any report required by the commissinn, for the ]iurposes of this sub- chapter, or who shall wilfully and ulLla^\d:'ully hinder, delay or ob- stnict said commission in the discharge of its duties, shall forfeit and ]">ay one hundred dollars for each offense, to be recovered in an action in the name of the state. A delay of ten days to make and furnisli such report shall raise the presumption that the same was wilful. 1124 COEPORATIOX COMMIS.— .1'. Tax Comrs. Ch. 20 n. To make diligent investigation and inquiry concerning the revenue laws and systems of other states and countries, so far as the same is made known by published reports and statistics, and can be ascertained by correspondence with officers thereof, and, with the aid of information thus obtained, together with experience and observa- tion of our o^^^l laws, to recommend to the general assembly at each regular session thereof such amendments, changes or modifications of onr revenue laws as seem proper and necessary to remedy injustice and irregularities in taxation, and to facilitate the assessment and col- lection of public revenues. 7. To further report to the general assembly at each regular session thereof, or at such other times as the general assembly may direct, the whole amount of taxes collected in the state for all purposes, classified as to state, coimty, township and mimicipal purposes, with the sources thereof, the amount lost, the cause of the loss, the proceedings of said board, and such other matters of information concerning the pub- lic revenues as it may deem of public interest. 1905, c. 590, s. 6. 1125. List of taxables, how revised by. After the various tax lists required to be made imder this chapter shall have been passed upon by the county board of equalization, the said several tax lists shall be subject to inspection by the said board of state tax commis- sioners or by any member thereof ; and in case it shall appear or be made to appear to said board that property subject to taxation has been omitted from said list, the said board may issue an order direct- ing the assessor or lister, Avhose assessments or failure to assess are complained against, to appear with his tax list at a time and place to be stated in said order, and the place to be at the ofiice of the board of county conunissioners at the county-seat or such other place in said county in which said roll was made, as said board shall deem most convenient for the hearing herein provided for. A notice of the time and place that said assessor or lister is ordered to appear with said list shall be published in a newspaper published at the county- seat in said county, if there be one ; if not, in some paper printed in said coimty, if there be any, at least five days before the time at whicii said assessor or lister is required to ap]iear, and jiersonal notice shall be given by mail to said persons whose property or whose assessments are to be considered, at least five days ])rior to said hearing. A copy of said order shall be served upon the tax ofticcr in whose ])OSsession said list shall be, at least three days before he is required to ap])ear with said list. The said board, or any member thereof, shall appear at the time and place mentioned in said order, and the assessing or listing officer upon whom said iiotice shall have been served shall a]i|)ear also with said tax list. The said board or any member thereof. Ill's COKPOEATION COMMIS.— X. Tax Vomrs. Ch. 20 n- the case may be, shall then and there hear and determine as to the ]iinper assessments of all jDroperty and persons mentioned in said ii'jtice, and persons affected or liable to be affected by the review of said assessments thus provided for may appear and be heard at said hearing. In case said board, or the member thereof who shall act in said review, shall detei-mine that the assessments so reviewed are not assessed according to law, he or they shall, in a column provided for that purpose, place opposite said property the true and lawful assess- ment of the same. As to the property not on the tax list, the said board or members thereof acting in said review shall place the same upon said tax list by proper description, and shall place thereafter in the proper column the true cash vahie of the same. In case of review imder this section, the said board or the member thereof acting in said review shall certify under his hand officially and spread upon said list a certificate of the day and date at which said tax list was reviewed by him, and the changes made by him therein. For appear- ing with said list as required herein, the tax officer shall receive the same pay per diem as is received by him in the preparation of the tax list, to be presented t» and paid by the proper officers of the county or municipality of which he is the assessing officer, in the manner as his other compensation is paid. The action of said board or member taken as provided in this subchapter shall be final. 1005. e. 590, s. 8. n25a. General review of tax list; how and when ordered. In case it shall appear or be made to appear to said board that any tax list in the state is so grossly irregular and unlawfully assessed that adequate compliance with the law can not be secured except by a general review of said tax list, said board may make and issue an order that said tax list shall be subject to general review, and the time and place shall be stated in said order at which said list shall be reviewed, and under said order the assessor whose assessment or fail- ure to assess is complained against shall be required to appear with his tax list at the time and place thus determined, said time to be not less than fourteen days from the issuance of the order, and the place to be at the office of the board of county eonuuissioners at the county- seat, or such other place in said county in which said list was made, as said board shall deem most convenient for the hearing herein pro- vided for. A notice of the time and place that said assessor is re- quired to appear with said list, together with a statement that said list will be subjected to general review, and that all persons interested therein may be heard at said time, shall be published in a newspaper published at the county-seat of said county, if there be one ; if not, in some newspaper printed in said county, if there be any, at least seven days before the time at which said assessor is required to appear. A 1123a COEPORATION COMMIS.— A'. Tax Coinrs. Cli. 20 copy of the order made as aforesaid shall be served ii]3on the tax officer ill whose possession said list shall be, at least three days before he is required to appear with said list. The said board or any member thereof shall appear at the time and place mentioned in said order, and the tax officer upon whom said notice shall have been served shall appear also with said tax list. The said board or any member thereof, as the case may be, together with the chairman of the board of county commissioners, shall then and there review said tax list and the assess- ment of property therein, and he or they shall have power to determine in accordance with law the amount at which said assessment shall be placed, and to change the same so that said assessments may comply M'ith the law. Also to place upon said list property omitted therefrom in the same manner as provided in the last preceding section. The determination of said board or members thereof, acting in said review, shall be placed in a column provided for that purpose, and they or he shall proceed in all respects as provided in the last preceding section, and the tax officer shall receive the same compensation as provided in said section. 1905, c. 590. s. 9. 1 126. Property unlisted, how listed by. If it shall appear to said board at any time that any property liable to taxation has not been assessed for any previous year as hereinbefore provided, the said board shall report the same to the proper assessing officer, and the same shall be listed for taxation upon the next tax list that shall be made, and shall be valued as all other property. The said board shall further certify to the board of county commissioners of the several counties at the October session thereof next after said property shall be then listed for taxation, and said board of county commissioners shall ascertain the rate of taxation for said several years, and shall order the taxes for said several years to be entered against said prop- erty upon the valuation for the then current year, and the same shall be so entered in a column provided for that purpose, and it shall con- stitute a charge against the person or property and be collected as other taxes: Provided, however, that this provision shall not be deemed to relate back prior to the first day of March, one thousand nine hundi-ed and five: Provided further, that in case of change of owner.ship of the property omitted, said taxes shall not be entered against said property prior to the last change of ownershi]i. 1905, c. 590, s. 10. 1127. Report to the governor, when; how distributed. The board of state tax commissioners shall, on or before the first day of Xovem- ber of each year, make an annual report to the governor of the state, setting forth the workings of said commission during the preceding lli'T COEPOEATION C0MMI8.— A'. Tax Comrs. Ch. 20 year, and containing the findings and recommendations of said com- mission in relation to all matters of taxation. The state auditor shall 1:1 use two thousand copies of said report to be printed on or before the first day of December succeeding the making of said report. Five hundred copies of said report shall be placed at the disposal of the state librarian for distribution and exchange, and a copy of said report shall be forwarded by said tax commission to each member of the general assembly as soon as printed. 1905, c. 590, s. 7. CHAPTEK 21. CORPORATIONS. Sections. I. General powers, 1128—1134 II. Legislative control, 1135—1136 III. Formation, 1137—1144 IV. By-laws, 1145—1146 V. Officers, 1147—1158 VI. Capital stock. 11.59-1173 VII. Amendm'ts, surrender, etc., and extension, 1174 — 1178 VIII. Corporate meetings. 1179—1190 IX. Dividends, 1191—1192 X. Foreign corporations. 1193—1194 XI. Dissolution, 1195—1211 XII. Execution, 1212—1218 XIII. Receivers, 1219—1232 XIV. Taxes and fees. 1233—1237 XV. Reorganization, 1238—1241 XVI. Miscellaneous provisions. 1242—1248 I. General Powees. 1 1 28. Corporate powers. Every corporation shall have power — 1. To have succession, by its corporate name, for the period lim- ited in its charter, or certificate of incorporation, and, when no period is limited, for a period of sixty years. 2. To sue and be sued in any court. 3. To make and use a common seal, and alter the same at pleasure, ■i. To hold, purchase and convey real and personal estate in or out of the state, and to mortgage the same and its franchises ; the power to hold real and personal estate shall include the power to take the same by devise or bequest. 5. To elect and appoint in such manner as it shall determine to be proper, all necessary officers and agents, and fix their compensation and define their duties and obligations. 1128 COEPOEATIONS— 7. General Powers. Ch. 21 6. To conduct business in this state, other states, the District of Columbia, the territories, dependencies and the colonies of the United States, and in foreign countries, and have one or more offices in or out of this state. 7. To make bv-laws and regulations, consistent with the laws of the state, for its own government, and for the due and orderly conduct of its affairs and the management of its property. 8. To wind up and dissolve itself, or be wound up and dissolved in the manner hereafter mentioned. Code, ss. 663, 666, 690, 691, 692, 693; 1893, c. 159; 1901, c. 2, s. 1. 1 129. Implied powers; how far this chapter affects all corpora- tions. In addition to the powers enumerated in the first section of this chapter, and the powers specified in its charter, or in the act or certificate under which it was incorporated, every corporation, its officers, directors and stockholders, shall possess and exercise all the powers and privileges contained in this chapter so far as the same are necessary or convenient to the attainment of the objects set forth in siich charter or certificate of incorporation, and shall be governed by the provisions, and be subject to the restrictions and liabilities in this chapter contained, so far as the same are applicable to, and not inconsistent with, such charter, or the act under which such corporation was formed ; and no corporation shall possess or exercise any other corporate powers, except such incidental powers as shall be necessary to the exercise of the powers so given: Provided, nothing in this chapter shall authorize or empower corporations organized under this chapter to lease, operate, maintain, manage or control any railroad except street railways. Code, s. 701; 1897, c. 204; 1901, c. 2, s. 4; 1901, c. 6. 1130. How land conveyed; certain conveyances void as to torts. Any corporation may convey lands, and all otlier property which is transferable by deed, by deed of bargain and sale, or other proper deed, sealed with the common seal and signed in its name by the president, a vice-president, presiding member or trustee, and two other members of the corporation and attested by a witness or "witnesses, or by deed of bargain and sale, or other ]n-oper deed, sealed with the common seal and signed in its name by the president, a vice- president, presiding niember or trustee, and attested by the secretary or assistant secretary of the company. But any conveyance of its property, whether absolutely or upon condition, in trust, or by way of mortgage, executed by any coi^ioration, shall be void and of no eflfect as to torts committed by such corporation prior to, or at the time of the execution of said deed : Provided, persons injured, or their repre- sentatives, shall commence proceedings or actions to enforce their 1130 COEPORATIONS— 7. Gerieral Powers. Ch. 21 claims against said corporation Avithin sixty dajf after the registra- tion of said deed, as required by law. Code, s. 685; 1891, c. 118; 1803, c. 95, s. 2; 1899, c. 235, s. 17; 1901, c. 2, s. 2; 1903, c. 660, s. 1; 1905, c. 114. 1131. Mortgaged corporate property subject to execution for labor and torts. ^Mortgages of corporation^^i nivm their property or earnings, whether in bonds or otherwise, shall not have power to exempt the property or earnings of snch corporations from execu- tion for the satisfaction of any judgment obtained in courts of the state against such corporations for labor performed, nor torts com- mitted by such corporation whereby any person is killed or any person or property injured, any clause or claiises in such mortgage to the contrary notwithstanding. Code, s. 1255; 1897, c. 334; 1901, c. 2, s. 3. 1132. Gas companies may supply electricity. Any gas com- pany, in addition to the 230wers contained in the charter, shall have full power to use, employ and supply electricity for lighting public and private buildings and all other places ; and may charge and collect such reasonable rates and fees for the vise of such lights^ fixtures and appliances as may be established by said company, in accordance with law. 1889 (Pr.), c. 35. 1133. Special powers of gas and electric companies. Gas and electric light and power companies shall have power to lay, extend, construct, build, erect, maintain, repair and remove all necessary or convenient towers, poles, cable wires, conductor.^, lamps, fixtures, appliances, appurtenances, in, upon, through and over any and all roads, streets, avenues, lanes, alleys and bridges within and near any city, town or village where said company may be located ; and all such roads, streets, lanes, alleys and bridges shall be left in as good condition as they were in at the time of using them as afore- said: Provided, that the rights and privileges conferred in this sec- tion shall not be exercised unless the authorities of such city, town or village first give their consent, and afterwards the said authori- ties shall have full power to control the location of all towers, poles, wires, conductors and all other fixtures, appliances and appvirte- nances belonging to or operated by any of said companies. 1889 (Pr.), c. 35, s. 2. 1134. Corporations created hereunder can not do banking business. No corporation created under the pi-ovisions of this chap- ter, shall, by any implication or construction, be deemed to possess the power of carrying on the business of di.scounting bills, notes or 1134 CORPORATIOXS— /. Genera/ Powers. Ch. 21 other evidences of debt, or of receiving deposits of money, or of buying gold or silver bullion, or foreign coins, or of buying and selling bills of exchange, or of issuing bills, notes or other evidences of debt, upon loan, or for circulation as money: Provided, that in the transaction, of its business it may make, and take and indorse, when necessary, all such bonds, notes and bills of exchange as the particu- lar business may require. Code, s. 684; 1901, c. 2, s. 5. II. Lec;isi,ative Control. 1135. Legislative power over corporate charters. The charter of every corporation, or any supplement thereto, or amendment thereof, shall be subject to alteration, modification, amendment or repeal, in the discretion of the legislature, and the legislature may, at pleasure, dissolve any corporation. Const., Art. VIII, s. 1 ; 1901, c. 2, s. 6. 1136. This chapter may be amended; corporations bound thereby; appropriate portions a part of all charters. This chap- ter may be amended or repealed at the pleasure of the legislature, and every corporation shall be bound by such amendment; but such amendment or repeal shall not take away or impair any remedy against any such corporation, or its oflicers, for any liability which shall have been previously incurred. This chapter and all amend- ments thereof shall be a part of the charter of every corporation heretofore formed, or hereafter formed hereunder, except so far as the same are inapplicable and inappropriate to the objects of such corporation. Const., Art. VIII, s. 1; 1901, c. 2, s. 7. III. FoEM.iTIOX. 1 137. How created. Any number of persons, not less than three, who may be desirous of engaging in any business, or of forming any company, society or association whatever, not unlawful, except rail- roads, other than street railways, or banking or insurance, or building and loan associations, shall be incorporated in the manner following, and in no other way (except in those cases where, in the jiulgment of the legislature, the object of the corporation can not be attained under the general law, and in all such cases the act creating the cor- poration shall contain a preamble, in which shall be set forth specifi- cally and definitely the particular object of the corjioration. or ]U'o- vision in the ]iroposcd charter, which can not W' attained under tlie 1137 COEPOKATIOXS— ///. Formation. Ch. 21 general law) ; that is to say, such persons shall, by a certificate of incorporation, under their hands, and seals, set forth — 1. The name of the corporation ; no name shall be assumed already in use by another existing corporation of this state, or so nearly similar thereto as to lead to imcertainty or confusion; and shall end with either the word ''company,'" or the word ''incorporated." 2. The location of its principal office in the state. 3. The object or objects for which the corporation is formed. 4. The amount of the total authorized capital stock of the corpor- ation, the number of shares into which the same is di%'ided, and the par valine of each share, the amoimt of capital stock with which it will commence business, and, if there be more than one class of stock, a description of the different classes, with the terms on which the respective classes of stock are created : Provided, however, that the provisions of this paragraph shall not apply to religious, charita- ble or literary corporations, imless it is desired to have a capital stock; in case any religioiis, charitable or literary corporation desires to have no capital stock, it shall be so stated, and the conditions of membership shall be also stated. 5. The names and postoffice addresses of the subscribers for stock, and the number of shares subscribed by each; the aggregate of such subscriptions shall be the amount of capital stock with which the company will commence business ; and if there be no capital stock, the names and postoffice addresses of the incorporators. 6. The period, if any, limited for the duration of the company. 7. The certificate of incorporation may also contain any provision which the incorporators may choose to insert for the regulation of the business, and for the conduct of the affairs of the corporation, and any provision creating, defining, limiting and regulating the powers of the corporation, the directors and the stockholders, or any class or classes of stockholders : Provided, such provision be not inconsistent with the laws of this state. Code, s. 677; 1901, e. 2, s. 8; 1903, c. 453; 1901, cc. 6, 41, 47; 1885, ec. 19, 190; 1889, c. 170; 1891, c. 257; 1893, cc. 244, 318; 1897, c. 204; 1899, c. 618. Xote. For improperly doing business under a company name, see s. 2118. 1138. Street railways may be incorporated hereunder. Cor- porations may be organized under the provisions of this chapter for the purpose of building, maintaining or operating street railways. The term street railways, wherever used in this chapter, shall be held to include railways operated either by steam or electricity, or by whatever motive power, used and operated as means of communi- cation between different points in the same municipality, or between points in municipalities lying adjacent or near to each other, or between the territory lying contiguous to the municipality in wliich is the home office of said company, and such railways may carry 317 1138 CORPORATIOXS— ///. Formation. Ch. 21 and deliver freights : Provided, that no such railway shall operali' a line extending in any direction more than fifty niiles from the mnniciijality in which is located its home office. No such raihviiy shall be operated in any city or tovm without the consent of the municipal authorities thereof. 1901, cc. 6, 41; 1003, c. 350. 1139. Certificate of incorporation, tiow signed, proved, filed and recorded. The certificate of incorporation shall be signed bv the original incorporators, or a majority of them, and sliall be proved, or acknowledged, before an officer duly authorized under the laws of this state to take the proof or acknowledgment nf deed-. Such certificate of incorporation, when so proved, shall be filed in the office of the secretary of state, and there remain of record, and he shall, if the same shall be in accordance with law, thereupon cause the same to be recorded in his office in a book to be kept for that purpose, and kno^vlJ as the "Corporation Book," and he shall, upon the payment of the organization ta.x and fees, certify under his official seal, a copy of the said certificate of incorjioration and probates, which said certified copy shall be forthwith recorded in the office of the clerk of the superior court of the county where tlie principal office of said corporation in this state shall, or is to be established, in a book to be known as the "Record of Incorpora- tions"' ; and said certificate of incorporation, or a copy thereof, duly certified by the secretary of state, or by the clerk of the superior court of the county in which the same is recorded, shall be evidence in all courts and places, and shall, in all judicial pi'oceedings, be deemed prima facie evidence of the complete organization and incor- poration of the company purporting thereby to have been established. Code, ss. 678, 679, 682; 1901, e. 2, s. 9; 1903, c. 343. 1140. When incorporators become a corporation. The persons so associated, their successors and assigns, shall, from the date of such filing in said office of the secretary of state, be and constitute a body corporate by the name set forth in such certificate of incorpor- ation, subject to amendment and dissolution in the manner provided by law. 1901, c. 2, s. 10. 1141. Incorporators to direct affairs until directors are elected. Until the directors are elected, the signers of the certificate of incor- poration shall have the direction of the afl:'airs and of the organiza- tion of the corporation, and may take such steps as are proper to obtain the necessary subscription to stock and to perfect the organiza- tion of the corj^oratiou. 1901, c. 2, s. 11. 1142 CORPORxlTIOXS— ///. Formation. Ch. 21 1 142. First meeting, how called. The first meeting of every cor- poration shall be called by a notice, signed by a majority of the incorporators, designating the time, place, and purpose of the meet- ing, which notice shall be published at least two weeks before the meeting, in some newsjjaper of the county where the corporation is established ; or said first meeting may be called without publication, if two days' notice be i^ersonally served on all the incorporators, or if all the incorporators shall in writing waive notice and fix a time and place of meeting, no notice or publication shall be required. Code, s. 605; 1901, c. 2, s. 18. 1143. Death of incorporators; vacancy filled. When one or more of the incorporators of any corporation, created by or under any gen- eral or special act, shall have died before the corporation shall have been organized pursuant to law, the survivors or survivor may, in writing, designate other persons who may take the place and act instead of those deceased, in the organization ; and the organization so effected by their aid shall be as effectual in law as if it had been effected by all the original incorporators. 1901, c. 2, s. 36. 1144. Errors in certificates of incorporation, how corrected. Whenever in the certificate of incorporation under any general law there shall be any error or omission in the recital of the act under which said corjDoration is created, or in the omission of any other matter which is required to be stated in the certificate, it shall be lawful for said corporation to correct such error in the manner fol- lowing: The board of directors of such corporation shall pass a reso- lution declaring that such error exists, and that said corporation desires to correct the same, and shall call a meeting of the stockholders of said corporation to take action upon such resolution. The meeting of said stockholders shall be held upon such notice as the by-laws provide, and in the absence of such provision, then upon ten days' notice, given personally, or by mail. If two-thirds in interest of all the stockholders shall vote in favor of the correction of such error or omission, a certificate of such action shall be made and signed by the president and secretary imder the corporate seal ; which said certifi- cate shall be acknowledged or proved as in the case of deeds of real estate, and such certificate, together with the written assent, in person or by proxy, of two-thirds in interest of all the stockholders of said corporation, shall be filed in the office of the secretary of state, and upon the filing thereof the certificate of incorporation shall be deemed to be corrected and amended accordingly, and the filing of said certifi- cate in conformity with this chapter shall have the same force and 1144 COKPORATIOXS— ///. Format ion. Ch. 21 effect as if said certificate of incorporation had been originiilly drafted in conformity with the amendment so made. 1901, e. 2, s. 109. IV. By-laws. 1145. Power to make and alter. The power to make and alter bydaws shall be in the stockliolders, biit any corporation may, in the certificate of incorporation, confer that power npon tlie directors. Bydaws made by the directors Tinder power so conferred may bo altered or repealed by the stockholders. 1901, c. 2, s. 13. 1146. What they may determine and contain. All corporations may, by their liydaws, where no other provision is specially made, determine the manner of calling and conducting all meetings ; the number of members that shall constitute a quorum (provided, in no case shall more than a majority of shares or amount of interest be required to be represented at any meeting in order to constitute a quonim ; if the quonmi shall not be so determined by the corporation, a majority in interest of the stockholders, represented either in per- son, or by proxy, shall constitute a quorum) the ninnber of shares that shall entitle the members to one or more votes; the mode of voting by proxy; the mode of selling shares for the nonpayment of assessments ; the tenure of office of the several officers, and the man- ner in which vacancies in any of the offices shall be filled, till a regular election, and they may annex suitable penalties to such bydaws, not exceeding in any case the sum of twenty dollars, for any one offense : Provided, that no such by-law shall be made by any corporation repugnant to any provision of its certificate of incorporation ; and the provisions of this chapter shall govern in all cases where tlie by-laws are silent. Code, s. 064; 1901, e. 2, s. 12. V. Offickrs. 1147. Directors, their selection, powers, duties, terms of office, classes, etc. The business of every corporation shall ho managed by its directors; they shall not be less than three in number, and, except as hereinafter provided, they shall be chosen annually by the stockholders at the time and place provided in the by-laws, and sliall hold office for one year and until others are chosen and qualified in their stead ; but by so providing in its certificate of incorporation, any corporation organized under this chapter may classify its direc- tors in respect to the time for which they .shall severally hold office, the several classes to be elected for different terms: Provided, that no 1147 CORPORATIONS— F. Officers. Ch. 21 class shall be elected for a shorter i:)eriod than one year, or for a longer period than five years, and that the term of office of at least mu' class shall expire in each year. Any corporation which shall have iimre than one kind of stock, may, by so providing in its certificate of incorporation, confer the right to choose the directors of any class ii|iiin the stockholders of any class, or classes, to the exclusion of the .'I hers. One director of every corpoi'ation of this state shall be an aiinal resident of this state, and it shall not be necessary for more llian one director to be a resident of this state, notwithstanding the provisions of any special charter or other act. 1901, e. 2, s. 14. 1148. Directors must be stockholders. No person shall be elected as director of any corporation issuing stock unless he shall be, at the time of his election, a bona fide holder of some of the stock thereof; and any director ceasing to be a bona fide holder of some of the stock thereof, shall cease to be a director. Any corporation may, by its certificate of incorporation or by-laws, detennine how m.any shares a person shall hold to qualify him to be a director. 1901, e. 2, s. 44. 1149. Officers, their selection, qualifications, duties, terms, etc. Every corporation organized under this chapter shall have a president, secretary and treasurer, who shall be chosen either by the directors or stockholders, as the by-laws may direct, and shall hold their offices until others are chosen and qualified in their stead ; the president shall be chosen from among the directors ; the secretary shall record all the votes of the corporation and directors in a book to be kept for that purpose, and perform such other duties as shall be assigned to him. The treasurer may be required to give bond for the faithful discharge of his duty in such sum, and with such surety, or sureties, as shall be required by the by-laws. Any two of the offices may be held by the same person, if the body electing so deter- mine. 1901, c. 2, s. 15. 1150. other officers, agents and factors. The corporation may have such other officers, agents and factors, who shall be chosen in such manner and hold their office for sucli terms, and upon such conditions as may be prescribed by the by-laws or determined by the board of directors. 1901, c. 2, s. 16. 1151. Vacancies, how filled. Any vacancy occurring among the directors, or in the office of president, secretary or treasurer, by death, resignation, removal or otherwise, shall be filled in the man- Rev. Vol. 1—17 321 1151 CORPOEATIONS— F. Oi^cers. Ch. 21 ner provided for in the by-laws; in the absence of such provision such vacancies shall be filled by the board of directors. 1901, e. 2, s. 17. 1152. Annual statement; forfeiture for failure to make; duty of secretary of state and attorney general. Every corporation, a\ithor- ized to transact business in this state, shall file in the office of the sec- retary of state, annually, on or before September first, a statement authenticated by the sigTiatures of the president and secretary contain- ing the total amount of capital stock authorized, the amount actually issued, whether for cash or for purchase of property, designating what property, the names of all of the directors, and officers, with the date of the election or appointment, term of office, residence and postoffice address of each, the character of its business and location, giving the street and number, if any, of its principal office in the state, and the name of the agent in charge of said office, upon whom process against the corporation may be served ; but this shall not prevent service of -process on other agents author- ized by law ; and for this purpose the secretary of state shall furnish blanks in proper form and safely keep in his office all such state- ments, and issue to the corporations filing the same his certificate thereof, and also prepare an alphabetical index thereof, which state- ments and index shall be submitted to the inspection of persons interested, at all proper hours ; and every corporation failing to com- ply with the provisions of this section shall forfeit to the state one hundred dollars, to be recovered, with costs, in an action to be prosecuted by the attorney general, who may prosecute such actions whenever it shall appear that this section has been violated. This section shall not apply to any corporation which is required to file a similar statement in the office of the commissioner of insurance, or the corporation commission. 1901, e. 2, s. 48. 1153. Secretary of state may call for special reports. The secretary of state .shall have power to call for special re]iorts from corporations, of the same character as their regular reports, at such times as he may deem public interest requires: Pmx'iiled, no fees shall be charged for filing such special reports. 1154. Liability for making false certificates. Lf any certificate made, or any public notice given, by the officers of any corporation, in pursuance of the provisions of this chapter, shall be fal.se in any material representation, all the officers who shall have signed the same, knowing it to be false, shall be jointly and severally liable for all the debts of the corporation contracted while they were stock- 1154 CORPOEATIONS— 7. Officers. Ch. 21 holders or officers thereof, as a penalty enforcible in the courts of this state only. : 1901, c. 2, s. 56. 1155. Fraud; liability of officers, directors and stockholders for. In case of fraud by the president, directors, managers or stock- holders, in any corporation, the court shall adjudge personally liable to creditors and others injured thereby such of the directors and ■stockholders as may have been concerned in the fraud. Code, s. 686; 1901, c. 2, s. 107. 1156. Who may sue officers and directors personally. When the officers, directors or stockholders of any corporation shall be liable to pay the debts of the corporation, or any part thereof, any person to whom they are liable may have an action against any one or more of them. And any such officer, director or stockholder shall have the right of equitable contribution in any action for that purpose against any other officer, director or stockholder who is liable with him for any amount which he may have been compelled to pay as provided in this section. 1901, c. 2, s. 90. 1157. Action by officer for money advanced. Any officer, direc- tor or stockholder who shall pay any debt of a corporation for which he is made liable by the provisions of this chapter, may recover the amount so paid, in an action against the corporation for money paid for its use, in which action only the property of the corporation shall be liable to be taken, and not the property of any stockholder, except as provided in the preceding section. 1901, c. 2, s. 91. 1158. Assets of corporation first exhausted. 'So sale or other satisfaction shall be had of the property of any director or stock- holder for any debt of the corporation of which he is such director or stockholder till judgment be obtained therefor against such cor- poration and execution thereon returned unsatisfied, or it shall be made to appear to the court that the corporation has no property available for the satisfaction of said indebtedness. 1901. e. 2. s. 92. VI. Capital Stock. 1159. Classes of stock; issued for property or labor. Every corporation shall have power to create two or more kinds of stock of such classes, with such designations, preferences and voting powers or restriction or qualification thereof as shall be prescribed 1159 COEPOEATIONS— F/. Capital Stock. Ch. 21 by tliose holding two-thirds of its capital stock outstanding; and the power to increase or decrease the stock, as herein elsewhere provided, shall apply to all or any of the classes of stock; and such preferred stock may, if desired, be made subject to redemption at not less than par, at a fixed time and price, to be expressed in the certifi- cate thereof; and the holders thereof shall be entitled to receive, and the corporation shall be bound to pay thereon, a fixed yearly dividend, to be expressed in the certificate, payable quarterly, half yearly, or yearly, before any dividend shall be set apart or paid on the common stock, and such dividends may be made cumulative ; and in case of insolvency, its debts or other liabilities shall be paid in preference to the preferred stock. No corporation shall create preferred stock, except by authority given to the board of directors, iDy a vote of at least two-thirds of the stock voted at a meeting of the common stockholders, duly called for that purpose. The terms "general stock" and "common stock" are synonymous. When any corporation shall issue stock for labor done or personal property or real estate, or leases thereof, which stock may be so issued by any corporation, in the absence of fraud in the transaction, the judgment of the directors as to the value of svich labor, property, real estate or leases shall be conclusive. 1901, c. 2, s. 19; 1903, c. GOO, ss. 2, 3. 1160. Capital stock, how paid; loans to stockliolders. Nothing but money shall be considered as payment of any part of the capital stock of any corporation organized under this chapter, except as herein provided in case of the purchase of property or labor per- formed, and no loan of money shall be made to a stockholder or offi- cer thereof; and if any such loan be made, the officers who make it, or assent thereto, shall be jointly and severally liable, to the extent of such loan, and interest, for all the debts of the corporation until the repayment of the sum so loaned. 1901, c. 2, s. 53. 1161. stock issued full-paid for property purchased; state- ments to contain the facts. Any corporation formed under this chapter may purchase mines, manufactories or other property nec- essary for its business, and issue stock to the amount of the value thereof in pajTnent therefor, and the stock so issued shall be full- paid stock, and not liable to any further call, neitlier shall the holder thereof be liable for any further payment under any of the pro- visions of this chapter; and in the ab.sence of actual fraud the judg- ment of the directors as to the value of the property sliall be con- clusive ; and in all statements and reports of the corporation to he publislied or filed, this stock sliall not be stated or reported as being 1161 COEPOEATIONS— y/. Capital Stock. Ch. 21 issued for cash paid to the corporation, but shall be reported in this respect according to the facts. 1901, e. 2, s. 54. Note. See s. 1159. 1162. Stockholders' liability for stock not fully paid; fiducia- ries and pledgors. Wliere the capital stock of a corporation shall not have been paid in, and the assets shall be insufficient to satisfy its debts and obligations, each stockholder shall be bound to pay on each share held by him the sum necessary to complete the amount of such share, as fixed by the certificate of incoi-iDoration or charter, or such proportion of that sum as shall be required to satisfy such debts and obligations ; but no person holding stock in any corpora- tion in this state as executor, administrator, guardian, or trustee, and no person holding such stock as collateral security shall be per- sonally subject to any liability as a stockholder of such corporation; but the person pledging such stock shall be considered as holding the same, and shall be liable as a stockholder accordingly, and the estate and funds in the hands of such executor, administrator, guard- ian, or trustee, shall be liable in like manner, and to the same extent, as the testator or intestate, or the ward, or the person interested in such fund, would have been, had he been living and competent to act and hold the stock in his own name. 1893, 0. 471; 1901, e. 2, s. 22. 1163. Liability of officers failing to make certificate. If any of the officers shall neglect or refuse to make any reports required of them by law for thirty days after written request so to do by a creditor or stockholder of the corporation, they shall be jointly and severally' liable to the person demanding such report, for the amount of his debt, if he be a creditor, or for the amount of his loss, if he be a stockholder. 1901, c. 2, a. 27. 1164. Decrease of capital stock, how effected; liability of directors and stockholders. The decrease of capital stock may be effected by retiring or reducing any class of the stock, or by draw- ing the necessary number of shares by lot for retirement, or by the surrender by every shareholder of bis shares, and the issue to him in lieu thereof of a decreased number of shares, or by the purchase at not above par of certain shares for retirement, or by retiring shares owned by the corporation, or by reducing the par vahie of .shares; and when any corporation shall decrease the amount of its capital stock as hereinbefore provided, the certificate decreasing the same shall be published for three weeks successively, at least once in each week, in a newspaper published in the county in which the 116-i CORPOKATIONS— F/. Capital Stock. Ch. 21 principal office of the corporation is located ; the first publication to be made within fifteen days after the filing of snch certificate, and in default thereof the directors of the corporation shall be jointly and sevei-ally liable for all the debts of tlie corporation contracted before the filing of the said certificate, and the stockholders shall also be liable for such sums as they may respectively receive of the amount so reduced : Provided, no such decrease of capital stock shall release the liability of any stockholder, whose shares have not been fully jDaid, for debts of the corporation theretofore contracted. 1901, c. -2, s. 32. 1 1 65. Certificates of stock. Every stockholder shall have a cer- tificate sigTied by the president and treasurer, or secretary, certify- ing the nimiber of shares o\\Tied by him in such corporation. 1901, c. 2, s. 20. 1166. Duplicate certificates issued by directors. Every cor- poration may issue a new certificate of stock in the place of any cer- tificate theretofore issued by it, alleged to have been lost or destroyed, and the directors authorizing such issue of a new certificate may, in their discretion, req\iire the owner of the lost or destroyed certificate, or his legal I'epresentatives, to give the corporation a bond, in such sum as they may direct, as an indemnity against any claim that may be made against such corporation. A new certificate may be issued without requiring any bond when, in the judgment of the directors, it is proper so to do. 1885, c. 265; 1901, e. 2, s. 94. • 1167. Action to compel issuance of duplicate certificate. Whenever any corporation shall have refused to issue a new certifi- cate of stock in place of one theretofore issued by it, or by any cor- poration of which it is a successor, alleged to have been lost or destroyed, the owner of the lost or destroyed certificate or his legal representatives may maintain a civil action in the superior court of the county in which the principal office of the corporation is located to compel such corporation to issue a diiplicate certificate of stock in the place of the certificate alleged to have been lost or destroyed ; and if the issues of fact arising upon the pleadings shall be found in favor of the plaintiff, the court shall make an order requiring the corjjoration or other party, within such time as it shall desig- nate, to issvie and deliver to the plaintiff a new certificate for the number of sliares of the capital stock of the corporation which shall have been found to be owned by the plaintiff. In making tlie order the court shall direct that the plaintiff deposit such security as to the court shall appear sufficient to indemnify any person other than the plaintiff, who shall thereafter appear to l^e the lawful o^\^ler of 326 1167 COKPOKATIONS— 7/. Capital Stock. Ch. 21 such certificate stated to be lost or destroyed ; and the court luay also direct publication of such notice, either preceding or succeeding the making of such final order, as it shall deem proper. Any person who shall thereafter claim any rights under the certificate so lost or destroyed shall have recourse to said indemnity, and the corpora- tion shall be discharged from all liability to such person by reason of compliance with the order. 1901, c. 2. a. 95. 1168. Shares, personal property; how transferred; held as col- lateral. The shares of stock in every corporation shall be personal property, and shall be transferable on the books of the corporation in such manner and under such regulations as the by-laws provide; and whenever any transfer of shares shall be made for collateral security, and not absolutely, it shall be so expressed in the entry of the transfer. Code, s. 689; 1901, c. 2, s. 21. 1 1 69. Assessments upon shares. The directors of every corpo- ration may, from time to time, make assessments upon the shares of stock subscribed for, not exceeding, in the whole, the par value thereof, remaining unpaid; and the sums so assessed shall be paid to the treasurer at such times and by such instalments as the direc- tors shall direct, said directors having given thirty days' notice of the assessment and of the time and place of pa\Tiient, either per- sonally or by mail, or by publication in a newspaper published in the county where the corporation is established. 1901, c. 2, s. 23. 1170. Shares sold to pay assessments. If the o^raer of any shares shall neglect to pay any sum assessed thereon for thirty days after the time appointed for ])ayment, the treasurer, when ordered by the board of directors, shall sell, at public auction, such numbers of the shares of the delinquent o^vner as will pay all assessments then due from him, with intei'est, and all necessary incidental charges, and shall transfer the shares sold to the purchaser, who shall be entitled to a certificate therefor. 1901, c. 2, s. 24. 1171. Notice of sale. The treasurer shall give notice of the time and place appointed for the sale, and of the sum due on each share, by advertising the same three weeks successively, once in each week, before the sale, in some newspaper published in the coimty where the principal office of the corporation is located, at the courthouse door, and by mailing a notice thereof to the last known postoffiee address of the delinquent stockholder. 1901, e. 2, s. 25. 327 llTi' CORPORATIONS— 17. Capital Stocl: Cli. 21 1172. Certain construction companies may take stock and bonds for labor, materials, etc.: statements to contain the facts. C'di-poratiuiis liaving for their object the building, eoiistrucliuir or repairing of railroads, water, gas or electric works, tnnnels, bridges, viaducts, canals, hotels, wharves, piers, or any like works of inter- nal improvement or public use, or utility, may subscribe for, take, pay for, hold, nse and dispose of stock or bonds in any corporation formed for the purpose of constructing, maintaining and operating any such public works; and the directors of any such corporation formed for the purpose of constructing, maintaining and operating any public work of the description aforesaid may accept in payment of any such subscription, or purchase, real or personal property, necessary for the purposes of such corporation, or work, labor and services performed, or materials furnished to, or for, siich corpora- tion to the amount of the value thereof, and from time to time issue upon any such subscription or purchase, in such instalments nr proportions as STich directors may agree upon, full-paid stock, in full or partial performance of the whole, or any part of such subscription or purchase, and the stock so issued shall be full-paid stock, and not liable to any further call, neither shall the holder thereof be liable for any further payments. And in all statements and reports of the corporation to be published or filed, this stock shall not be stated, or reported, as being issued for cash paid to the corporation, but shall be reported and published in this respect according to the fact. 1901, c. 2, s. 55. 1173. One corporation may hold stock and securities of another. Any corporation may purchase, hold, assign, transfer, mortgage, pledge or otherwise dispose of the shares of the capital stock of, or any bonds, securities or evidences of indebtedness cre- ated by, any other corporation or corporations of this or any other state, and while owner of such stock may exercise all the rights, pow- ers and privileges of ownership, including the right to vote thereon. 1903, c. 660, s. 3. VII. AjIENDilENTS, SUKRENDEK AND EXTENSION. 1174. Amendments before payment of stock. It shall be lawful for the incorporators of any incorjioration, before the payment of any part of its capital, to file with the secretary of state an amended certificate of incorporation, duly signed by the incorporators named in the original certificate of incorporation, and duly acknowledged or proved, modifying, changing or altering the original certificate of incorporation in whole, or in part, which amended certificate 1174 CORPORATIONS— TT/. Amendments, etc. Ch. 21 of incorporation shall take the place of the original certificate of incorporation, and when recorded in the proper county shall be deemed to have been filed and recorded on the date of filing and recording the original certificate of incorporation: Provided, the officers shall be entitled to the same fees for filing and recording the amended certificate of incorporation as if they were original ; but there shall be charged no additional organization tax, except when the certificate of incorporation is amended by increasing the capital stock, in Avhich event, an additional organization tax shall be paid u])on snch increase. 1901, c. 2, s. 28. 1175. Amendments, generally. Every corporation, whether or- ganized under a special act of incorporation, or under general laws, and which might now be created under the provisions of this chap- ter, may change the nature of its business, relinquish one or more branches thereof, or extend its business to such other branches as might have been inserted in its original certificate of incorporation, change its name, increase its capital stock, decrease its capital stock, change the par value of the shares of its capital stock, extend its cor- porate existence, create one or more classes of preferred stock, and make such other amendment, change or alteration as may be desired, in manner following: The board of directors shall pass a resolution declaring that such change or alteration is advisable, and call a meeting of the stockholders to take action thereon ; the meeting shall be held upon such notice as the by-laws provide, and In the absence of such provisions, upon ten days' notice, given personally or by mail ; if two-thirds in interest of each class of the stockholders having voting powers shall vote in favor of s\Tch amendment, change or alter- ation, a certificate thereof shall be signed by the president and sec- retary, under the corporate seal, acknowledged or proved, as in the case of deeds to real estate, and such certificate, together with the written assent, in person or by proxy, of two-thirds in interest of each class of such stockholders, shall be filed and recorded in the office of the secretary of state, and upon such filing he shall issue a certified copy thereof, which shall be recorded in the county in which the original certificate of incorporation is recorded, and there- upon the certificate of incorporation shall be deemed to be amended accordingly: Provided, that such certificate of amendment, change or alteration sliall contain only such provision as it would be lawful and proper to insert in an original certificate of incorporation made at the time of making such amendment, and the certificate of the secretary of state, under his official seal, that such certificate and assent have been filed in his office shall be taken and accepted as evidence of such change, or alteration, in all courts and places. And 1175 COEPORATIONS— T7/. Ainendmenls, He. Ch. 21 any corporation which could not now be created under the provisions of this chapter may in like manner increase or decrease its capital stock, or change its name. 1893, c. 380; 1899, c. GIS; 1901, c. 2, ss. 29, 30; 1903, c. 510. 1176. Change of location of principal office. The board of direc- tors of any corporatii>n, organized under the laws of this state, may change the location of the principal office of such corporation within this state to any other place within this state, by resolution adopted at a regular or special meeting of such board, by the votes of at least two-thirds of the members of such board : Provided, that no cer- tificate shall be required to be filed of the removal of any office from one point to another in the same town, township or city of the state. Upon the adoption of a resolution as aforesaid, a copy thereof shall be filed in the office of the secretary of state, signed by the president and secretary of such corporation, and sealed with its cor- porate seal. 1901, c. 2, s. 31. 1177. Surrender of corporate rights before payment of stock. The incorporators named in any certificate of incorporation, before the payment of any part of the capital stock, and before beginning the business for which the corporation was created, may surrender all their corporate rights and franchises, by filing in the office of the secretary of state a certificate verified by oath, that no part of the capital stock has been paid and such business has not been begun, and siirrendering all rights and franchises, and thereupon the said corporation shall be dissolved. 1901, c. 2, s. 35. 1 1 78. Extension of corporate existence. Any corporation, cre- ated by special charter, or under the general law, for any objects which are allowed by this chapter may extend its corporate existence in the manner prescribed herein: Provided, that if such corpora- tion possesses franchises, powers, privileges, immunities or advan- tages which could not be obtained under this chapter, such extension shall not continue, renew or extend such franchises, powers, privi- leges, immunities or advantages, but the filing of the certificate of extension shall operate as a waiver and abandonment of such fran- chises, powers, privileges and advantages. 1901, c. 1. s. 37. VTTI. C0RP0];.\TE j\rKETIXC.S. 1179. Place of meetings; books at principal office: jurisdiction superior court over books. Tlie meetings of the stoeklin](l(>rs of every corporation of this state shall be hold at the principal office in 1179 CORPORATIONS— y///. Corporate Meetings. Ch. 21 tliis state. The directors may hold their meetings, and have an office nnd keep the books of the corporation (except the stock and transfer Ixioks) outside of the state. Every corjjoration shall maintain a principal office in this state, and have an agent in charge thereof, wherein shall be kept the stock and transfer books for the inspection of all who are authorized to see the same, and for the transfer of stock. The superior court may, upon proper cause shown, order any or all of the books of said corporation to be forthwith brought within this state, and kept therein at such place and for such time as may lie designated in such order, and the charter of any corporation fail- ing to comply with such order may be declared forfeited by the (■curt making such order. And it shall thereupon cease to be a cor- ] Miration, and all its directors and officers shall be liable to be pun- ished for contempt of court for disobedience of such order. 1901, c. 2, s. 49. 1180. Transfer and stock books at principal office; only evi- dence as to stockholders, when; directors' duties. Every corpo- ration shall keep at its principal and registered office in this state the transfer books, in which the transfer of stock shall be registered, and the stock books, which shall contain the names and addresses of the stockholders, the number of shares held by them respectively, which shall at all times during the usual hours for business be open to the examination of every stockholder; and the books aforesaid shall be the only evidence as to who are the stockholders entitled to examine such books or list, and to vote at elections ; and the board of directors shall produce at the time and place of such election such books or list, there to remain during the election, and the neg- lect or refusal of said directors to produce the same shall render them ineligible to any office at such election. 1901, c. 2, s. 38. •1181. Transfer book determines right to vote. In case the right to vote upon any share of stock shall be questioned, the stock books of the corporation shall be referred to, to ascertain who are the stockholders, and in case of a discrepancy between the books, the transfer book shall control and determine who are entitled to vote. 1901, c. 2, s. 45. 1182. Directors, how elected; quorum for. All elections for directors shall be by ballot, unless otherwise expressly provided in the charter or certificate of incorporation or by-laws; the poll shall remain open one hour, unless all the stockholders are present in per- son or by proxy and have sooner voted, or unless all the stockholders Avaive this provision in writing; the persons receiving the greatest 1182 CORPORATIONS— T7//. Corporate Meetings. Ch. 21 inimber of votes shall be the directors: Provided, however, that a majority of all the stock issued and outstanding shall be present in person or by proxy. 1901, c. 2, s. 39. 1183. Votes stockholders entitled to; cumulative voting. The certificate of incorporation, original or amended, of any corporation now or hereafter organized under the laws of this state, and there- under issuing or authorized to issue shares of its capital stock, may provide that, at all elections of directors, managers or trustees, each stockholder shall be entitled to as many votes as shall equal the number of his shares of stock multiplied by the number of directors, managers or trustees to be elected, and that he may cast all of such votes for a single director, manager or trustee, or may distribute them, among the number to be voted for, or any two or more of them, as he may see fit, which right, when exercised, shall be termed cumulati^'e voting. This section shall not be construed as affecting in anywise the determination of whether or not the right of cumula- tive voting has been heretofore granted by implication, or the right of cumulative voting, if any, granted specifically by special charter, or certificate of incorporation. 1901, c. 2, s. 40. 1184. Votes stockholders entitled in absence of special pro- vision; proxies; transfers within twenty days of election. Unless otherwise provided in the charter, certificate of incorporation or by- laws of the corporation, at every election each stockholder, whether resident or non-resident, shall be entitled to one vote in person or by proxy, duly authorized in writing, for each share of the capital stock held by him, but no proxy shall be voted on after three years from its date ; nor shall any share of stock be voted on at any election which has been transferred on the books of the corporation within twenty days next preceding such election. 1901, c. 2, s. 41. 1185. stock held by fiduciaries, pledgees and married women. Every person holding stock as executor, admiiiistrntor, guardian or trustee, or in any other representative or fiduciary capacity, may represent the same at all meetings of the corporation, and may vote thereon as a stockholder, with the same effect as if the absolute owner thereof, unless the instrument creating the trust shall provide to the contrary. A married woman holding stock may vote the same, in person or by proxy, in the same manner and with the same effect as if she were a feme sole; and every person who shall pledge his stock as collateral security may, nevertheless, represent the saTUje at all such meetings, and may vote thereon as a stockholder, unless 332 11S5 COEPOEATIONS— F///. Corporate Meetings. Cli. 21 in the transfer to the pledgee on the books of the corporation he shall have expressly empowered the pledgee to vote thereon, in which case only the pledgee or his proxy may represent said stock and vote thereon. 1901. c. 2, s. 42; 1901, c. 474. 1186. Stock held by life tenant. Where stock is owned by, or shall be transferred on its record books to, one for life with remain- der over, such life tenant at all meetings of such corporation may represent and vote said stock in person or by proxy, in the same manner and with tlie same effect as if such life tenant was the abso- lute owner thereof. 1901, c. 474, s. 2. 1187. Shares belonging to corporation. Shares of stock of a corporation belonging to said corporation shall not be voted upon directly or indirectly. 1901, c. 2, s. 43. 1188. Failure to hold election, effect; judge may order. If the election for directors of a corporation shall not be held on the day designated by the act or certificate of incorporation or by-laws, the directors shall cause the election to be held as soon thereafter as conveniently may be. jSTo failure to elect directors at the designated time shall work any forfeiture or dissolution of the corporation; and if the directors shall fail or refuse for thirty days after receiv- ing a written request for such election from those owning one-tenth of the outstanding shares of stock, to call a meeting for such elec- tion, then the judge of the district, or the judge presiding in the courts of the district, in which the principal office of the corpora- tion is located, may, upon the application of any stockholder, and on notice to the directors, order an election or make such other order as justice may require. The proceedings governing the issuance and hearing of injunctions shall, as far as applicable, govern such hearing. 1901, c. 2, s. 46. 1189. Jurisdiction of superior court over elections. The superior court judge, upon application of any person who may be aggrieved by, or complain of, any election, or any proceeding, act or matter in or touching the same, ten days' notice having been given to the adverse party, or to those who are to be affected thereby, of such intended application, shall proceed forthwith, at chambers, in any county in the district in which the principal office of the corporation is situated, to hear the affidavits, proofs and allegations of the parties, or other- wise inquire into the matter or causes of complaint, and thereupon 11S9 CORPOKATIONS— y///. Corpwaie Meetings. Ch. 21 establish the election so complained of, or order a new election, or ' make such order, and give such relief in the premises as right and I justice may require. The proceedings shall be the same as in injiinc- i tions, as nearly as may be. j 1901, c. 2, s. 47. ; 1190. Meetings called by three stockholders, when. Whenever, for any reason, a legal meeting of the stockholders of any corporation can not be otherwise called, three or more stockholders, having voting powers, may call such meeting by publishing ten days' notice of the time, place and purposes of the meeting, in a newspaper published in the. county in which the principal office in this state is located, and mailing such notice to all stockholders whose postoffice address is known, or can be ascertained. A meeting called as aforesaid shall be a legal meeting of the corporation, and if there be no officers present, the stockholders may elect officers for the meeting; and the secretary of the meeting shall record the proceedings thereof in the book of minutes of the corporation. 1901, c. 2, s. 51. IX. Dividends. 1191. When declared; working capital. The directors of every corporation created under this chapter shall, in January in each year, imless some specific day or days for that purpose be fixed in its charter, certificate of incorporation or by-laws, and in that case then on the days so fixed, after reserving, over and above its capital stock paid in, as a working capital for said corporation, such sum, if any, as shall have been fixed by the stockholders, declare a dividend among its stockholders of the whole of its accumulated profits exceed- ing the amount so reserved, and pay the same to such stockholders on demand : Provided, that the corporation may, in its certificate of incorporation, or in its by-laws, give the directors power to fix the amount to be reserved as a working capital. 1901, e. 2, s. 52. 1192. From profits and surplus only; liability of directors; limi- tations of actions. ISTo corporation shall declare and pay dividends, except from the surplus or net profits arising from its business, nor when its debts, whether due or not, shall exceed two-thirds of its assets, nor divide, withdraw, or in any way pay to the stockholders, or any of them, any part of its capital stock, or reduce its capital stock, except according to this chapter, and in case of any violation of the provisions of this section, the directors under whose adminis- tration the same may happen shall be jointly and severally liable, at any time within six years after paying such dividend, to the corpor- 1192 CORPOEATIONS— 7Z. Dividends. Ch. 21 ation and to its creditors, in the event of its dissolution or insolvency, to the full amount of the dividend so paid, or capital stock so divided, withdrawn, paid out or reduced, with interest on the same from the time such liability accrued : Provided, that any director who may have been absent when the same was done, or who may have dissented from the act or resolution by which the same was done, may exoner- ate himself from such liability by causing his dissent to be entered at large on the minutes of the directors, at the time the same was done, or forthwith after he shall have notice of the same. Code, s. 081; 1901, c. 2, ss. 33, 52. X. Foreign Coepokations. 1193. May do business here. Any corporation created by any other state, or by any foreigni state, kingdom or government may acquire by devise or otherwise and hold, mortgage, lease and convey real estate in this state for the purpose of prosecuting its business, or objects, or siich real estate as it may acquire by way of mortgage or otherwise in the payment of debts due such corporation: Provided, such foreign state, kingdom or government, under whose laws such corporations were created, shall not be at the time of such purchase at war with the United States. 1901, c. 2, s. 93. 1194. To file charters and statement with secretary of state; fees therefor; forfeiture. Every foreign corporation before being permitted to do business in this state, railroad, banking, insurance, express and telegraph companies excepted, shall file in the office of the secretary of state a copy of its charter or articles of agreement, attested by its president and secretary, under its corporate seal, and a statement attested in like manner of the amount of its capital stock authorized, the amount actually issued, the principal office in this state, the name of the agent in charge of such office, the character of the business which it transacts and the names and postoffice addresses of its officers and directors. And such corporation shall pay to the secretary of state, for the iise of the state, ten ' cents for every one thousand dollars of the total amount of the capital stock authorized to be issued by such corporation, but in no case less than ten dollars nor more than one hundred dollai's. And every corporation failing to comply with the provisions of this section shall forfeit to the state five hundred dollars, to be recovered, with costs, in an action to be prosecuted by the attorney general, who shall prosecute such actions whenever it shall appear that this section has been violated. 1901, c. i, s. 57; 1903, c. 766. Note. For service of justice's summons, see s. 1448. 1195 CORPOEATIONS— Z/. Dissohdion. Ch. 21 XI. Dissolution. 1195. Voluntary. Whenever, in the judguieut of the board of directors, it shall be deemed advisable and most for the benefit of such corporation that it should be dissolved, the board, within ten days after the adoption of a resolution to that effect by a majority of the whole board, at any meeting called for that purpose, of which meeting every director shall have received at least three days' notice, shall cause notice of adoption of such resolution to be mailed to each stock- holder residing in the United States, to his last known postotfice address, and also, beginning within said ten days, cause a like notice to be published in a newspaper published in the county wherein the corporation -shall have its principal office, at least four weeks success- ively, once a week, next preceding the time appointed for the same, of a meeting of the stockholders to be held at the office of the corpora- tion, to take action upon the resolutions so adopted by the board of directors, and which meeting may, on the day so appointed, by con- sent of a majority in interest of the stockholders present, be adjourned from time to time for not less than eight days at one time, of which adjourned meeting notice by advertisement in said newspaper shall be given ; and if at any such meeting two-thirds in interest of all the stockholders shall consent that a dissolution shall take place, and sigTiify their consent in writing, such consent, together with the list of the names and residences of the directors and officers, certified by the president and the secretary or treasurer, shall be filed in the office of the secretary of state, who, upon being satisfied by due proof that the requirements aforesaid have been complied with, shall issue a certificate that such consent has been filed and the board of direc- tors shall cause such certificate to be recorded in the office of the clerk of the superior court of the county in which the principal office of the corporation is located, and published four weeks successively, at least once a week, in a newspaper published in said county; and upon the filing in the office of the secretary of state of an affidavit of the manager or publisher of such newspaper that said certificate has been so published, the corporation shall be dissolved, and the board shall proceed to settle u]i and adjust its business and aifairs. When- ever all the stockholders shall consent in writing to a dissolution, no meeting or notice thereof shall be necessary, but on filing said consent in the office of the secretary of state he shall forthwith issue a certificate of dissolution, which shall be published as above provided, and recorded in the office of the clerk of the sujierior court of the county in which the principal office of the coi-poration is located. moi, c. 2, s. 34. lliMj CORPORATIONS— X/. Dissolution. Cli. 21 1196. Involuntary, at instance of private persons. Corpora- tions may be dissolved by civil action, instituted by the corporation, a stockholder, or creditor, or by authority of tlie attorney general in the name of the state, in the cases hereinafter mentioned, to-wit: 1. For any abuse of its powers to the injury of the public or of the stockholders, or of its creditors or debtors. 2. For nonuser of its powers for two years or more conseciitively. 3. When it shall become insolvent, or shall suspend its ordinary ■business for want of funds to carry on the same, or be in imminent danger of insolvency, or has forfeited its corporate rights. 4. Upon any conviction of the company of a criminal offense if such offense be persistent. Code, s. 694; 1901, c. 2, s. 73. Note. For obtaining leave of attorney general, see ss. 828, 829. 11 97. Attorney general may sue to restrain ultra vires acts; to compel accounts; to remove officers; to preserve property. An action may be brought by the attorney general in the name of the state, upon his own information, or upon the complaint of any private party, against the parties offending in the following cases: To restrain by injunction any corporation from assuming or exer- cising any franchise, or transacting any business not allowed by its charter; to restrain any person from exercising corporate franchises not granted ; to bring directors, managers, and officers of a corpora- tion, or the trustees of funds given for a public or cliaritable purpose, to an account for the management and disposition of the property confided to their care ; to remove such officers or trustees upon proof of gi-oss misconduct; to secure, for the benefit of all interested, the property or funds aforesaid ; to set aside and restrain improper alienations thereof, and generally to compel the faitliful perform- ance of duty, and prevent all malversations, peculations and waste. Code, ss. 607, 686; 1901, c. 2, s. 107. Note. For obtaining leave of attorney general, see ss. 828, 829. 1198. Involuntary, at instance of attorney general. An action may be brought by the attorney general in the name of the state against a corporation for the puri^ose of vacating or annulling the act or certificate, or renewal of the same, creating the corporation, on the ground that such act or certificate or renewal was procured upon some fraxidulent suggestion, or concealment of a material fact, by the persons incorporated, or by some of them or with their knowledge and consent, or annulling the existence of a corporation, other than municipal, whenever such corporation shall — 1. Offend against the act creating, altering, or renewing such cor- poration; or, Rev. Vol. 1—18 337 1198 CORPOEATIONS— Z/. DissoIutio7i. Ch. 21 2. Violate any law by which such corporation shall have for- feited its charter by abuse of its powers; or, 3. Whenever it shall have forfeited its privileges or franchises by failure to exercise its power ; or, 4. Whenever it shall have done or omitted any act which amounts to a surrender of its corporate rights, privileges and franchises; or, 5. Whenever it shall exercise a franchise or privilege not conferred upon it by law ; or, 6. For nonuser of its powers for two or more years consecutively ; °^' . . 7. For insolvency, manifested by the return of an execution unsatisfied, upon a judgment against the company docketed in the superior court of the county where it has its principal place of business. And it shall be the duty of the attorney general, whenever he shall have reason to believe that any of these acts or omissions can be established by proof, to bring the action, in every case of p\iblic interest, and also in every other case in which satisfactory security shall be given to indemnify the state against the costs and expenses to be incurred thereby. Code, ss. 604, 605; 1889, c. 533. 1199. Service of summons in actions for. In any action for the dissolution of a corporation, or for the appointment of a receiver thereof, the summons must be served on the corporation by service on an officer or agent thereof upon whom other process can be served, and shall be served on the stockholders, creditors, dealers and others inter- ested in the affairs of the company, by publishing a copy thereof at least weekly for not less than three successive weeks in some news- paper printed in the county in which such corporation has its princi- pal place of business, or if there be no such newspaper published, then by posting a copy of such summons at the door of the courthouse of such county, and jjublishing a copy thereof for the time and in the manner aforesaid in the newspaper published nearest the county seat of the county in which such corporation has its principal place of business, or in some newspaper published in the city of Raleigh ; and such publication shall be deemed and held sufficient service on all the stockholders, creditors of, or dealers with, such corporation, and upon the corporation, if no officer can after due diligence be found in the state and it shall have no process agent in the state ; and all such stockholders, creditors or dealers or other parties interested may intervene in said proceedings and become parties thereto for themselves, or for others in like interest, under sucli rules as the court for the purpose of justice shall prescribe. Code, s. 695. 33S 1200 COKPORATIONS— X7. Dissolution. Ch. 21 1200. Corporate existence continued three years for winding up. All corporations whose charters shall expire by their own limi- tation, or shall be annulled by forfeiture or otherwise, shall never- theless be continued bodies corporate for the term of three years after the time when they would have been so dissolved, for the purpose of prosecuting and defending actions by or against them, and of enabling them gradually to settle and close their concerns, to dispose of and convey their property, and to divide their capital ; but not •for the purpose of continuing the business for which such corpora- tion may have been established : Provided, that in any pending action the court, in its discretion, may extend the time for winding up the affairs of such corporation. Code, s. 667; 1901, c. 2, s. 58. 1201. Upon dissolution, directors to be trustees; powers and duties; debts not extinguished. Upon the dissolution in any man- ner of any corporation, unless otherwise directed by an order of the court, the directors shall be trustees thereof, with full power to settle the affairs, collect the outstanding debts, sell and convey the property and divide the moneys and other property among the stockholders, after paying its debts, as far as such moneys and property shall enable them. They shall have power to meet, and act iinder the by- laws of the corporation, and, under regulations to be made by a ma- jority of said trustees, to prescribe the tei-ms and conditions of the sale of such property, and may sell all, or any part for cash, or partly on credit, or take mortgages or bonds for part of the purchase price for all or any j^art of said property. In case of the dissolution of a corporation, the debts due to and from it shall not be thereby extinguished. Code, s. 687; 1901, c. 2, s. 59. 1202. Directors as trustees may sue and be sued. The direc- tors, constituted trustees as aforesaid, shall have power to sue for and recover the aforesaid debts and property, in the name of the corpora- tion, and shall be sizable by the same name for the debts owing by such corporation, and shall be jointly and severally responsible for such debts, onlj' to the amount of moneys and property of the corpor- ation which shall come to their hands or possession as such trustees. 1901, c. 2, s. 60. 1203. Jurisdiction of superior court; may appoint directors or others as receivers; powers and duties. Whenever any corporation shall be dissolved in any manner whatsoever, the superior court, on application of any creditor, or stockholder, at any time, may either continue the directors trustees as aforesaid, or appoint one or more persons to be receivers of such coi-poration, to take charge of the 1203 CORPOEATIONS— Z/. Dissolution. Ch. 21 estate and effects thereof, and to collect the debts and property due and belonging to the corporation, with power to prosecute and defend, in the name of the corporation, or otherwise, all suits necessary or proper for the piirposes aforesaid, and to appoint an agent or agents under them, and to do all other acts which might be done by such corporation, if in being, that may be necessary for the final settle- ment of its unfinished business ; and the powers of siich trustees or receivers may be continued as long as the court shall think necessary for such purposes. Code, ss. 619, 6GS; 1901, c. 2, s. 61. 1204. Jurisdiction of judge. The judge of the superior court shall have jurisdiction of such application and of all questions arising in the proceedings thereon, and make such orders, injunctions, and decrees therein as justice and equity shall require at any place in the district. Code, s. 669; 1901, e. 2, s. 62. 1205. Injunction; when notice and undertaking required. An injunction to suspend the general and ordinary business of a cor- poration or to appoint a receiver shall not be granted without due notice of the application therefor to the corporation, except where the state is a party to the proceeding, unless the plaintiff shall give a written undertaking, executed by two sufficient sureties, to be ap- proved by the judge, to the effect that the plaintiff will pay all dam- ages, not exceeding the sum to be mentioned in the undertaking, which such corporation may sustain by reason of the injunction, or the appointment of the receiver, if the court shall finally decide that the plaintiff was not entitled thereto. The damages may be ascer- tained by a reference, or otherwise, as the court shall direct. Code, s. 343; C. C. P., s. 194. Note. See g. 818. 1206. Wages for two months lien on assets, in case of the insolvency of any corporation the laborers and workmen and all per- sons doing labor or service of whatever character in the regular employment of such corporation, shall have a first and prior lien upon the assets thereof for the amount of wages due to them respect- ively for all labor, work, and services done, performed or rendered within two months next preceding the date when proceedings in insolvency shall be actually instituted and begun against such insol- vent corporation, which lien shall be prior to all other liens that can or may be acquired wpon or against such assets. 1901, c. 2, s. 8". 1207. Distribution of funds. After payment of all allowances, expenses and costs, and the satisfaction of all special and general 340 1207 CORPORATIONS— ZZ. Dissolution. Ch. 21 liens upon the funds of the corporation to the extent of their lawful priority, the creditors shall be paid proportionately to the amount of their respective debts, and the creditors shall be entitled to distribu- tion on debts not due, making in such case a rebate of interest, when interest is not accruing on the same, and the surplus funds, if any, after payment of the creditors and the costs, expenses and allowances aforesaid, and the preferred stockholders, according to their respect- ive shares, and if there still be a surplus it shall be divided and paid to the general stockholders proportionately, according to their re- spective shares. Upon the distribiition of the assets of an insolvent corporation, judgment of dissolution shall be entered. Code, s. 670; 1901, c. 2, ss. 63, 89. 1208. Dissolution does not abate actions; receivers to be notified. Any action now pending, or to be hereafter begun, against any corporation which may become dissolved before final judgment, shall not abate by reason thereof, but no jiidgment shall be entered therein, except upon notice to the trustees or receivers of the cor- poration. 1901, c. 2, s. 64. 1209. Judgment of forfeiture against a corporation. If it shall be adjudged that a corporation against which an action shall have been brought, has forfeited by neglect, abuse, or surrender, its cor- porate rights, privileges and franchises, judgment shall be rendered that the corporation be excluded from such corporate rights, privi- leges and franchises, and that the corporation be dissolved. Code, s. 617. 1210. Persons claiming to be corporation liable for costs of action. If judgment be rendered in such action against a corpor- ation, or against persons claiming to be a corporation, the court may cause the costs therein to be collected by execution against the persons claiming to be a corporation, or by attachment or process against the directors or other officers of such corporation. Code, s. 618. 1211. Clerk superior court to file copy of judgment dissolving corporation with secretary of state; costs thereof. A copy of every judgment dissolving a corporation or forfeiting its charter shall be forthwith filed by the clerk of the court, in the office of the secre- tary of state, and a note thereof shall be made by the secretary of state, on the charter or certificate of incorporation, and in the index thereof, and be published by him in the annual report hereinafter provided for, the cost of which shall be taxed by the clerk of the superior court, in the action wherein the corporation is dissolved. 1001, c. 2', s. 65. 341 1212. COKPOKATIOXS— AT/. Execution. Cli. 21 XII. Execution. 1212. How issued and on what levied. If any judgment slmll be rendered against a corporation, the plaintiff may sue out such executions against the property of a corporation as is provided by hiw to be issued against the property of natural persons, which execu- tions may be levied as well on the current money as on the goods, chattels, lands and tenements of such corporation. 1901, c. 2, s. 66. 1213. Agent must furnish information as to property to officer with. Every agent or person having charge or control of any property of a corporation, on request of any public officer having for service a writ of execution against it, shall furnish to him the names of the directors and officers thereof, and a schedule of all its property, including debts due or to become due to it, so far as he may have knowledge of the same. 1901, c. 2, s. 67. 1214. Shares of stock sold under. Any share or interest in any bank, insurance company, or other joint stock company, that is or may be incorporated under the authority of this state, or incorporated or established under the authority of the United States, belonging to the defendant in execution, may be taken and sold by virtue of such execution, in the same manner as goods and chattels. 1901, c. 2, s. 69. 1215. Officer entitled to information as to stock. The clerk. cashier, or other officer of such company, who has at the time the custody of the books of the company, shall, upon e'xhibiting to him the writ of execution, give to the officer having such writ a certificate of the number of shares or amoimt of the interest held by the defend- ant in such company ; and if he shall neglect or refuse so to do, or if he shall wilfully give a false certificate thereof, he shall be liable to the plaintiff for the amount due on said execution, with costs. 1901, e. 2, s. 70. 1216. Against debts due corporation; liability of agents refus- ing compliance. If any officer holding an execution shall be una- ble to find other property belonging to the corporation liable to execution, he or the judgment creditor may elect to satisfy such execution in whole or in part, out of any debts due to the corpora- tion ; and it shall be the duty of any agent or person having custody of any evidence of such debt, to deliver the same to the officer, for the use of the creditor, and such delivery, with a transfer to tlie officer in writing, for the use of the creditor, and notice to the debtor shall 342 1216 COEPOKATIONS— Z/7. Execution. Ch. 21 be a valid assignment thereof; and such creditor may sue for and collect the same in the name of the corporation, subject to such equit- able setoffs on the part of the debtor as in other assignments ; and every agent or person who shall neglect or refuse to comply with the provisions of this and the last preceding section, shall be himself liable to pay to the execution creditor the amoimt due on said execu- tion, with costs. 1901, c. 2, s. 68. 1217. Proceedings when custodian of corporate books is a nonresident. When the clerk, cashier, or other officer of any corpor- ation incorporated under the laws of this state, who has the custody of the books of registry of the stock thereof, shall be nonresident in this state, it shall be the duty of the sheriff receiving a writ of execu- tion issued out of any court of this state against the goods and chattels of a defendant in execution holding stock in such company, to send by mail a notice in writing, directed to such nonresident clerk, cashier, or other officer, at the jjostoffice nearest his reputed place of residence, stating in such notice that he, the said sheriff, holds such writ of execution, and out of what court, at whose suit, for what amount, and against whose goods and chattels such writ has been issued, and that by virtue of such writ be, the sheriff, seizes and levies upon all the shares of stock of such company held by the defendant in execution on the day of the date of such written notice ; and it shall also be the duty of such sheriff on the day of mailing such notice, to affix and set up upon any office or place of business of such company, within his county, a like notice in writing, and on the same day to seiwe like notice in writing upon the president and directors of said company, or upon such of them as reside in his county, either personally or by leaving the same at their respective places of abode; and the sending, setting up and serving of siich notices in the manner aforesaid, shall constitute such levy so made a valid levy of such writ upon all shares of stock in such com- pany held by the defendant in execution, which have not at the time of the receipt of such notice by said clerk, cashier, or other officer, who has custody of the books of registry of the stocks thereof, been actually transferred by the defendant; and thereafter any transfer or sale of such shares by the defendant in execution shall be void as against the plaintiff in said execution, or any purchaser of such stock at any sale thereunder. 1901, c. 2. s. 71. 1218. Duty and liability of nonresident custodian of corporate books. The nonresident clerk, cashier, or other officer in such com- pany, to whom notice in writing is sent, as prescrilied in the pro- ceding section, shall thereupon send forthwith, by mail or other- 343 1218 CORPORATIONS— AT/. Execution. Ch. 21 wise, to the officer baviug such writ, a statement of the time when he received such notice and a certificate of the number of shares held by the defendant in such company at the time of the receipt by him of such notice, not actually transferred on the books of said company; and the said sheriil, or otlier officer, shall, on receipt by him of such certificate, insert the number of such shares in the inventory attached to said writ; and if such clerk, cashier, or other officer in such com- pany, neglect to send such certificate as aforesaid, or if he shall wil- fully send a false certificate, he shall be liable to the plaintiff for double the amoimt of all damages occasioned by such neglect, or false certificate, to be recovered in an action against him; but the neglect to send, or miscarriage of such certificate, shall not impair the valid- ity of the levy upon the stock. 1901, c. 2, s. 72. XIII. Receivers. 1219. When appointed. Whenever any corporation shall become insolvent, or shall suspend its ordinary business for want of funds to carry on the same, or be in imminent danger of insolvency, or has forfeited its corporate rights, or its corporate existence shall have expired by limitation, a receiver may be appointed by the court under the same regulations as are provided by law for the appointaient of receivers in other cases. Code, s. 6G8; 1901, c. 2, s. 73. Note. See also, s. 1203. 1220. Debts provided for, receiver discharged. Whenever a receiver shall have been appointed, and it shall afterwards appear that the debts of the corporation have l>een paid, or provided for, and that there remains, or can be obtained by further contributions, sufficient capital to enable it to resume its biisiness, the court may, in its discretion, a proper case being shown, discharge the receiver, and decree that its property, rights, franchises and effects shall revert to the corporation, and thereafter the corporation may resume con- trol of, and enjoy the same, as fully as if the receiver had never been appointed. 1901, e. 2, s. 70. 1221. Reorganization after receiver discharged. Whenever a majority in interest of the stockholders of sucli corporation shall have agreed upon a plan for the reorganization of the corporation and a resumption by it of the management and control of its property and business, such corporation may, with the consent of the court, upon the reconveyance to it of its property and franchises, either by deed or decree of the court, mortgage the same for such amount as may be necessary for the purposes of such reorganization ; and may 1221 CORPOEATIONS— ZZ/7. Beceivers. Ch. 21 issue bonds or other evidences of indebtedness, or additional stock, or both, and use the same for the full or partial payment of the creditors who will accept the same, or otherwise dispose of the same for the purposes of the reorganization. 1901, c. 2, s. 77. 1222. Powers and bond. Such receiver shall have full power and authority to demand, sue for, collect, receive and take into his possession all the goods and chattels, rights and credits, moneys and effects, lands and tenements, books, papers, choses in action, bills, :notes, and property of every description of the corporation, fore- close mortgages, deeds of trust and other liens executed to the cor- poration, and to institute suits for the recovery of any estate, prop- erty, damages or demands existing in favor of the corporation, and to appoint agents under him, and to do all other acts which might be done by such corporation, if in being, that may be necessary for the final settlement of the unfinished business of the corporation ; and the powers of such receiver may be continued as long as the court shall think necessary for the purposes aforesaid, and the receiver shall have jjower to sell, convey and assign all the said estate, rights and interest, and shall hold and dispose of the pro- ceeds thereof under the direction of the court. The word receiver as used in this chapter shall be constrvied to include receivers and trus- tees appointed, as provided in this chapter. Every receiver shall, before acting, enter into such bond and comply with siich terms as the court may prescribe. Code, s. GC8; 1901, c. 2, s. 74. 1223. Majority may act; removal of; vacancies. Every matter and thing required to be done by receivers or trustees shall be good and effectual, to all intents and purposes, if performed by a majority of them; and the court may remove any receiver or trustee and appoint another in his place, or fill any vacancy which may occur. 1901, c. 2, s. 79. 1224. Property to vest in. All the real and personal property of an insolvent corporation, wheresoever situated, and all its franchises, rights, privileges and effects shall, upon the appointment of a receiver, forthwith vest in him, and the corporation shall be divested of the title thereto. 1901, c. 2, s. 75. 1225. Inventory. Such receiver, within thirty days after his appointment, shall lay before the court a full and complete inventory of all estate, property and effects of the corporation, its nature and probable value, and an account of all debts due from and to it. 1225 CORPOEATIONS— Z/77. Eeceivers. Ch. 21 as nearly as the same can be ascertained, and make a report to the sujDerior court of his proceedings, at every civil term thereof during the continuance of the trust. 1901, c. 2, s. 80. 1226. Compensation. Before distribution of the assets of an insolvent corporation among the creditors or stockholders, the court shall allow a reasonable compensation to the I'eceiver for his services, not to exceed five per cent, upon receipts and disbursements, and the costs and expenses of administration of his trust, and the costs of the proceedings in said court to be first paid out of said assets. 1901, c. 2. s. 88. 1227. May send for persons and papers; penalty for refusing to answer. Such receiver shall have power to send for persons and papers, and to examine any persons, including the creditors and claimants, and the president, directors, and other officers and agents of the corporation, on oath or affirmation (which oath or affirmation the receiver may administer), respecting its affairs and transactions and its estate, money, goods, chattels, credits, notes, bills, and choses in action, real and personal estate and effects of every kind; and also respecting its debts, obligations, contracts and liabilities, and the claims against it; and if any person shall refuse to be sworn or affirmed, or to make answers to such questions as may be put to him, or refuse to declare the whole truth touching the subject matter of the said examination, the court may, on report of the receiver, commit such person as for contempt. 1901, c. 2, s. 78. 1228. Time limit for creditors to present claims. The court may limit the time within which creditors shall present and make proof to such receiver of their respective claims against the corporation, and may bar all creditors and claimants failing so to do within the time limited from participating in the distribution of the assets of the corporation. The court may also ju-escribe what notice, by pub- lication or otherwise, shall be given to creditors of such limitation of time. 1901, c. 2, s. 81. 1229. Claims, how presented and proved; power and duty of receiver. Every claim against an insolvent corporation shall be pre- sented to the receiver in writing; and the claimant, if required, shall submit him.self to such examination in relation to the claim as the receiver shall direct, and shall produce .such books and papers relating to the claim as shall be required ; and the receiver shall have power to examine, under oath or affirmation, all witnesses produced before 346 1229 COEPOKATIONS— Z//7. Receivers. Ch. 21 him touching the claims, and shall pass upon and allow or disallow the claims or any part thereof, and notify the claimants of his deter- mination. 1001, c. 2, s. 82. 1230. Claims reported to court; exceptions in ten days; right to jury trial, it shall be the duty of such receiver to report to the ' term of the superior court subsequent to any finding by him as to I'any claim against the corporation, and exceptions thereto may be filed by any person interested, within ten days after notice of such ' finding by the Teceiver, and not later than within the first three days of the said term; and if, on any exception so filed, a jury trial shall be demanded, it shall be the duty of the court to prepare a pi'o]ier issue and submit the same to a jury; and if such demand is no( made in the exceptions to the report the right to a jury trial shall be deemed to have been waived. The judge may, in his discre- tion, extend the time for filing such exceptions. 1901, c. 2, s. 83. 1231. May become plaintiff in pending actions. Such receiver shall, upon application by him, be substituted as party plaintiff or complainant in the place and stead of the corporation, in any suit or proceeding which was pending at the time of his appointment. 1901, e. 2, s. 84. 1232. Property sold pending litigation; fund reserved. When the property of an insolvent corporation is at the time of the appoint- ment of a receiver incumbered with mortgages or other liens, the legality of which is brought in question and the property is of a character materially to deteriorate in value pending the litigation, tlie court may order the receiver to sell the same, clear of inc\un- brances, at public or private sale, for the best price that can be obtained, and pay the money into the court, there to remain subject t(i the same liens and equities of all parties in interest as was the ]irii]ierty before sale, to be disposed of as the court shall direct. 1901, c. 2. s. 86. Note. For service of process, actions for appointment of receivers, see s. 1199. For bond before appointing receiver, see s. 1205. XIV. Taxes and Fees. 1233. State taxes; organization, amendments, dissolution, etc. On filing any certificate or other paper, relative to corporations, in the office of the secretary of state, the following taxes shall be paid to the state treasurer, for the use of the state: For certificates of incorporation, twenty cents for each thousand dollars of the total 1233 CORPOEATIONS— Z/T'. Taxes and Fees. Ch. 21 amount of capital stock authorized, but in no case less than twenty- five dollars ; increase of capital stock, twenty cents for each thousand dollars of the total increase authorized, but in no case less than twenty dollars ; extension or renewal of corporate existence of any corporation, the same as required for the original certificate of organization by this chapter; change of name, change of nature of business, amended certificate of incorporation (other than those authorizing increase of capital stock), decrease of capital stock, increase or decrease of par value of, or number of, shares, twenty dollars ; for filing list of officers and directors, one dollar ; dissolution of corporation, change of princijDal place of business, five dollars: Provided, that no taxes shall be required to be paid by any benevo- lent, religious, educational, or charitable society or association having no capital stock; and these taxes shall not be cumulative, but when two or more taxes would have been incurred at the same time, the tax for all shall be the largest single tax. 1901, c. 2, s. 96. 1234. Fees to secretary of state and clerk of superior court. The secretary of state shall collect and retain the following fees, viz. : For recording the certificate of incorporation one dollar, for the first three copy sheets and ten cents for each copy sheet in excess thereof, and for official seal fifty cents ; for copying the same fees as for recording. There shall be paid the clerk of the superior court for recording the certificate of incorporation a fee of three dollars. Code, s. 680; 1893, c. 318, s. 4; 1901, c. 2, s. 96. 1235. Tax on bills creating private corporations; copy to be filed with secretary of state before organization. Every bill intro- duced in either house of the general assembly to incorporate any private corporation or railroad company, or to amend the charter of such corporation, shall be accompanied by a recei))! from the state treasurer, showing that there has been paid an organization tax in double the amount prescribed for corporations organized under this chapter, and in addition thereto each private corjioration (railroad, insurance and banking companies excepted) shall, before its organi- zation, file and have recorded a copy of the bill creating it in the office of the secretary of state, and shall become subject to tlie provisions of til is chapter. 1901, c. 2, s. 97: 1903, c. 93; 1905. o. 168. s. ?.. 1236. Corporate property liable for taxes, though in receiver's hands. Wliencvcr taxes are duly assessed, eliarged and extended against any corporation having chartered rights, or doing business in this state, or having property in this state, or against any person 1236 CORPORATIONS— Z/7. Taxes and Fees. Ch. 21 resident in this state or doing bxisiness, or having property in this state, and the tax list is in the hands of any officer or tax collector, it shall be competent for such officer or tax collector, whenever said taxes, whether listed or unlisted, are due and unpaid, to levy upon, seize and take into his possession such part of the property belonging to such person or corporation as may be necessary to pay such taxes listed or imlisted, whether the property of such corporation or per- son be in the hands of a receiver duly appointed or not. Code, s. 699. 1237. Tax collector need not obtain order of court though property is in receiver's hands. In all cases provided for in the preceding section, it shall not be necessary for such officer or tax collector to apply and obtain from the court appointing such receiver, or having jurisdiction of the property or of the receiver, an order for the payment of such taxes, but the same may be collected as afore- said, by distraint and seizure, as if the property or corporation was not in the hands of a receiver. This section and the preceding section shall apply to all taxes, whether state, county, town, or mimici- pal ; and shall be liberally construed in favor of, and in furtherance of, the collection of said taxes. Code, s. 700. XV. Reorganization. 1238. Corporations whose property and franchises sold under order of court or execution. Whenever the property and franchises of a corporation shall be sold under a judgment or decree of a court of this state, or of the circuit court of the United States, or under execution, to satisfy a mortgage debt or other encumbrance thereon, such sale shall vest in the purchaser all the right, title, interest and property of the parties to the action in which such judgment or decree was made, to said property and franchises so sold, subject to all the conditions, limitations and restrictions of said corporation ; and such purchaser and his associates, not less than three in number, shall thereupon become a new corporation, by such name as said persons shall select, who shall be the stockholders in the ratio of the pur- chase money by them respectively contributed ; and shall bo entitled to all the rights and franchises and be subject to all the conditions, limitations and penalties of the said corporation whose property and franchises shall have been so sold. In the event of the sale of a railroad in foreclosure of a mortgage or deed of trust, whether under a decree of court or otherwise, the corporation created by or in con- sequence of such sale shall succeed to all the franchises, rights and privileges of said original corporation only when such sale is of all 1238 CORPOEATIONS— ZF. Reorganization. Ch. 21 the railroad o-mied by the company and described in the mortgage or deed of trust, and when said railroad is sold as an entirety. Code, ss. 697, COS; 1897, c. 305; 1901, c. 2, s. 99. 1239. New corporators to meet and organize. The persons for, or on whose accoimt, any such property and franchises may have been purchased, shall meet within thirty days after the conveyance made by virtue of said jiroeess, or decree, shall have been delivered, written notice of the time and place of said meeting having been given to each of said several persons at least ten days before said meeting, and organize said new corporation. 1901, c. 2, s. 100. 1240. Duties and powers at meeting. At such meeting the said persons shall adoj^t a corporate name and corporate seal, determine the amount of the capital stock of said corporation, and shall have power and authority to make and issue certificates of stock in shares of such amounts as they shall see fit. The said corporation may then, or at any time thereafter, create and issue preferred stock to siich an amount, and at such time, as they may deem necessary. 1901, c. 2, 8S. 101, 102. 1241. Certificate to be filed witli secretary of state. It shall be the duty of such new corporation, within one month after its organization, to make certificate thereof, under its common seal, attested by the signature of its president, specifying the date of such organization, the name so adopted, the amount of capital stock, and the name of its president and directors, and transmit the said certifi- cate to the secretary of state, to be filed and recorded in his office, and there remain of record ; and a certified copy of such certificate so filed shall be recorded in the office of the clerk of the superior court of the county in which is located the principal office of the said corporation, and shall be the charter and evidence of the corporate existence of said new corporation: Provided, that nothing contained in this chapter shall divest, or in any manner impair, the lien of any prior mortgage, or other encumbrance upon the property or franchises, conveyed under the sale of said property or franchise, when by the terms of the process or decree under which the sale was made, or by operation of law, the said sale is made subject to the lien of any sucli prior mortgage or other encumbrance : And provided, that no such sale and conveyance or organization of such new corporation shall in anywise affect or impair any riglits of any person, body politic or corporate, not a party to the action in which the aforesaid decree was made, nor of the said party, except so far as determined by said decree : And provided, also, that when any trustee shall be made a party to such action and his cestui que trust, 3.50 1241 COEPOEATIONS— Z7. Reorganization. Ch. 21 for any reason satisfactory to the court in which the action may be, shall not be made a party thereto, the rights and interest of snch cestui que trust shall be concluded by such decree. 1901, c. 2, s. 103. XVI. Miscellaneous Pkovisions. 1242. Name of corporation to be displayed. The name of every cori)oration shall be at all times conspicuously displayed at the entrance of its principal office in this state, and in defaiilt thereof for sixty days the corporation shall be liable to a penalty of one hundred dollars, to be recovered with costs, by the state, in an action to be prosecuted by or under the direction of the attorney general. 1901, c. 2, s. 50. 1243. Resident process agent required; in absence, service upon secretary of state sufficient; fees. Every corporation having property or doing business in this state, whether incorporated under its laws or not, shall have an officer or agent in this state, upon whom process in all actions or proceedings against it can be served ; and any corporation failing to comply with the provisions of this section .'shall be liable to a forfeiture of its charter, or to the revocation of its license to do business in this state. In any such case, process in any action or proceeding against such corporation, may be served upon the secretary of state by leaving a true copy thereof with him, and he shall mail the said copy to the president, secretary or other officer of the corporation, upon whom, if residing in this state, service could be made ; and for the service to be performed by the said secretary, he shall receive a fee of fifty cents, to be paid by the party at whose instance the service is made. 1901, c. 5. 1244. Secretary of state to annually publish list of corporations created. The secretary of state shall annually compile from the records of his office, and publish a complete list, in alphabetical order, of existing domestia corporations and of the original and amended certificates of incorporation filed during the preceding year, together with the location of the principal office of each in this state, the name of the agent in charge thereof, the amount of authorized capital stock, the amount with which business is to be commenced, the amount issued, the date of filing the certificate, and the period for which tlie corporation is to continue. 1901, c. 2, s. 104. 1245. Mutual corporations may create stock. The members of any mutual corporation may provide for and create a capital stock 1245 COEPOKATIOXS— XF/. Misc. Provisions. Cb. 21 of such corporation, upon the consent in writing of all the members of the corporation, and may provide for the payment of such stock, and fix and prescribe the rights and privileges of the stockholders therein not inconsistent with law. 1901, c. 2, s. 105. 1246. Forfeiture by failure for two years to organize; or after organization, to act; duty of secretary of state and attorney gen- eral. When any act shall have been passed, or certificate of incorpo- ration, as provided in this chapter, shall have been recorded, ci'cating a body corporate, and the corporators for two years shall neglect or fail to organize the company and carry into effect the intent of the act, or when organized, if they at any time for two years together shall cease to act, then such disuse of their corjiorate privileges ami powers shall be deemed and taken as a forfeiture of the charter. And if, after thirty days' notice by the secretary of state, such cor- poration shall fail to surrender its corporate rights, or to dissolve, in the manner provided in this chapter, the secretary of state shall report such corporation to the attorney general, who shall institute an afipropriate action for the dissolution of such corporation. Code, s. 088; 1901, c. 2, s. 106. 1247. Meaning of "judge," "court," etc. Whenever the words "court," "superior court," or "judge of the superior court" appear in this chapter, they shall be construed to mean the judge of the superior court resident of the district or holding the courts by rota- tion, exchange, or appointment, of the district wherein such corpor- ation may have its principal place of business. 1901, c. 2, s. 111. 1248. Amendments to certain charters validated. All amend- ments to the plan of incorporation of any corporation which was organized under the provisions of the general laws of North Carolina prior to the passage of the act entitled "An act to revise the corjwra- tion law of North Carolina," being chapter two, public laws of one thousand nine hundred and one, are hereby declared to be valid in all respects, whether such amendments have been made in accordance with the provisions of chapter three hundred and eighty of the- public laws of one thousand eight hundred and ninety-three or in accordance Avith the provisions of chai)ter two of public laws of one thousand nine hundred and one ; but no amendment shall be validated by tliis section unless it is an amendment of such natiire as is authorized to be made under the provisions of chapter two of public laws of one thou- sand nine hundred and one. 1905, 0. 316. Note. See ss. 1027, 1028. Note. Corporate bonds may be sold for le.ss than par, see s. lO.'il. .3.-)2 1249 COSTS— 7. Generally. Ch. 22 CIIAPTEE 22. COSTS. Sections. I. Generally, 1249—12.58 II. State liable, when. 1259—1263 III. Civil actions and proceedings. 1264—1278 IV. On appeals, 1279—1282 V. Lialiility of counties, in criminal actions. 128.3—1290 VI. Lialiilitv of defendant, in criniina actions, 1291—1294 VII. The pro'spcutcr. 129.5—1297 VIII. Witnesses, 1298—1.300 IX. Criminal costs before justices, T. Generally. 1307—1308 1249. What allowed. To either party for whom judgment shall be given there .shall be allowed as costs his actual disbursemeut.s for fees to the officers, witnesses, and other persons entitled to recei\'e the same. Code. s. 528. 1250. Summary judgment for uncollected. If any officer, to ^\•holn fees are payable by any person, shall fail to receive them at the time the sen'ice is performed, lie may have judgment therefor on motion to the coairt in which the action is or was pending, upon twenty days' notice to the person to be charged, at any time within one year after the termination of the action in which the same was performed. If the motion for judgment be in behalf of the clerk of the superior court, it shall be made to the judge of the court in or out of term. Code, s. 3760; 1868-9, c. 279, s. '561. 1251. Judgment and execution for, against sureties on prose- cution or appeal bond. Whenever an action shall \y? brought in any court in which security shall be given for the prosecution thereof, or when any case shall be brought up to a cotirt by an appeal or otherwise, in which security for the prosecution of the suit shall have been given, and judgment shall be rendered against the ]ilaintiff for the costs of the defendant, the appellate cotirt, itpon motion of the defendant, shall also give jtidgnient against the surety for said costs, and execution may issue jointly against the plaintiff and his surety. Code, s. 543; R. C, c. 31, s. 126; 1831, c. 46. Rev. Vol. 1—19 353 1252 COSTS— 7. Generally. Ch. 22 1252. Executions for, when issued; irregular if not itemized. The clerks of the supreme, sujierior and eriminal ccnirts, where suits are determined and the fees are not paid by the party from whom they are due, shall sue out executions, directed to the sheriff of any county in the state, who shall levy thera as in other cases ; and to the said execution shall be annexed a bill of costs, written in words, so as plainly to show each item of costs, and on what account it is taxed ; and all executions for costs, issuing without such a bill annexed, shall be deemed irregular, and may be set aside as to the costs, at the return term, at the instance of him against whom it is issued. Code, s. 37G2; R. C, c. 102, s. 24. 1253. Juror's tax fees. On every indictment or criminal pro- ceeding, tried or otherwise disposed of in the superior, or crimi- nal courts, the party convicted, or who shall be adjudged, to pay the costs, shall pay a tax of two dollars. In every civil action in any court of record, the party who shall be adjudged to pay the costs shall pay a tax of three dollars; but this tax shall not be charged unless a jury shall be impaneled. Said tax fees shall be charged by the clerks in the bill of costs, and collected by the sheriff, and by him paid into the county treasury. And the fund thus raised in any county shall be set apart for the payment of the jurors attending the courts thereof. In Pitt county the jury tax shall be five dollars in civil and in criminal cases. Code, s. 732; R. C, c. 28; 1830, c. 1: 1870, c. 32.5: 1881, -e. 2411; 100.-,. <•. .348. 1254. Criminal, not demandable in advance, in all cases of criminal complaints l)cfiire justices of the supremo court, judges of the superior and criminal coui'ts, justices of the ])eace and other magistrates having jurisdiction of such complaints, the otficers enti- tled by law to receive fees for issuing or executing process shall not be entitled to demand them in advance. Such officers shall indorse the amounts of their respective fees on every process issued or exi'- cuted by them, and return the same to the court to which it is return- able. Cixle, s. 1173; 1868-9, c. 178, siibcli. 3, s. 40. 1255. Clerk to insert, in entry of judgment. The clerk shall insert in the entry of judgment the allowances for costs allowed by law, and the necessary disbursements, including the fees of officers and witnesses, and the reasonable compensation of referees and com- missioners in taking depositions. The disbursements .shall be stated in detail. Whenever it shall be necessary to adjust costs in any interlocutory proceedings, or in any special proceedings, the same 1255 COSTS— 7. Generally. Ch. 22 shall be adjusted by the clerk of the court to which the proceedings were returned, except in those matters in which the allowance is required to be made by the judge. Code, s. 532. 1256. Bills of criminal costs itemized; approved by solicitor. It shall be the duty of the clerks of the several courts of record, at each term of the court, to make up an itemized statement of the bill of costs in every criminal action tried or otherwise disposed of at said term, which shall be signed by the clerk, and approved by the solicitor. Code, s. 733; 1873-4, c. 116; 1879, c. 264. 1257. Justices required to itemize bills of. In all trials before justices of the ]icace it shall be lawful for plaintiff or defendant before pa3^nent of costs, to demand of the justice before whom a trial is held an itemized statement of costs ; and it shall be his duty to insert in the entry of judgment in every criminal action tried or otherwise disposed of by him a detailed statement of the different items of costs, and to whom due. Code, s. 734; 1887, c. 297. 1258. Bills of, open to the public. Every bill of costs shall at all times be open to the inspection of any person interested therein. Code, s. 735; 1873-4, c. 116. II. State Liable^ When. 1259. Civil actions by the state. In all civil actions prosecuted in the name of the state, by an officer duly authorized for that pur- pose, the state shall be liable for costs in the same cases and to the same extent as private parties. If a private person be joined with the state as plaintiff, he shall be liable in the first instance for the defendant's costs, which shall not be recovered of the state till after execution issued therefor against such private party and returned unsatisfied. Code, s. 536. 1260. Civil actions by and against state officers. In all civil actions dejjending, or which may be instituted, by any of the officers of the state, or which have been, or shall be instituted against them, when any such action is brought or defended pursuant to the advice of the attorney general, and the same shall be decided against such ofllcers, the costs thereof shall be paid by the state treasurer upon the warrant of the auditor for the amount thereof as taxed. Code, s. 3373; 1874-5, c. 154. 1201 COSTS—//. State Liable, \Vhen. Ch. 22 1261. Civil actions by state for individuals. In an action prose- cuted in the name of the state for the recovery of money or prop- erty, or to establish a right or claim for the benefit of any county, city, town, village, corporation or j^erson, costs awarded against the plaintiff shall be a charge against the party for whose benetit the action was prosecuted, and not against the state. Code, s. 537. 1262. In bribery prosecutions. The expenses which shall be incurred by any county in investigating and prosecuting any charge of bribery or attempt to bribe any state officer or member of the general assembly within said county, and of receiving bribes by any state officer or member of the general assembly in said county, shall be a charge against the state, and tlie properly attested claim of the county commissioners shall be paid by the treasurer of the state. Code, s. 742; 18G8-9, e. 176, s. 6; 1874-5, c. 5. 1263. On appeal by state to supreme court of United States. In all cases, whether civil or criminal, to which the state of Nortli Carolina is a party, and which may be carried from the courts of this state, or from the circuit court of the United States, by appeal or writ of error, to the United States circuit court of aiipeals, or to the suprenxe court of the United States, and the state sliall be ail- judged to ]3ay the costs, it shall be the duty of the attorney general to certify the amoimt of such costs to the auditor, who shall there- upon issue a warrant for the same, directed to the treasurer, \\\\o shall pay the same out (if any moneys in the treasury not ntherwisc appropriated. Code, s. 538; 1871-2, c. 2G. III. Civil Actions and Proceedings. 1264. When allowed plaintiff; when limited by amount of recov- ery. Ciists sliall be allowed of course to the plaintiff, upon a recov- ery, in the following cases : 1. In an action for the recovery of real ])roperty, or when a claim of title to real property arises on the ])leadings, or is certified by the court to have come in question at the trial. 2. In an action to recover the possession of personal pro])erty. 3. In actions of which a court of a justice of the peace lias no jurisdiction unless otherwise provided by law. 4. In an action for a.ssault, battery, false imprisonment, libel, slander, malicious prosecution, criminal conversation or seduction, if the plaintiff recovers less than fifty dollars damages, he shall recover no more costs than damages. 356 12G4 COSTS—///. Civil Actions. Ch. 22 5. When several actions shall be brought on one bond, recogni- zance, promissory note, bill of exchange or instrument in writing, or in any other case, for the same canse of action against several pai'ties who might have been joined as defendants in the same action, no costs other than disbursements shall be allowed to the plaintiff in more than one of such actions, which shall be at his election, pro- vided the party or parties proceeded against in such other action or actions shall have been within the state and not secreted at the com- mencement of the previous action or actions. Code, s. 525; 1874-5, e. 119; R. C, c. 31, s. 78. 1265. When allowed pauper plaintiff. Whenever any person shall sue as a pauper, mi olticcr shall rctpiire of him any fee, and he shall recover no costs, except in case of recovery by him. Code, s. 212; 1895, e. 149; 1868-9, c. 96, s. 3. 1266. When allowed defendant. Costs shall be allowed as of (•"ursc to the defendant, in the actions mentioned in section one thou- sand two hundred and sixty-four, unless the plaintiff be entitled to I'dsts therein. In all actions where there are several defendants not united in interest, and making separate defenses by separate answers, and the plaintiff fails to recover pidg-ment a^'ainst all, the court may award costs to such of the defendants as have judgment in their favor or any of them. Code, ss. 526, 527; C. C. P., s. 277. 1267. Discretionary in other actions. In other actions, costs may be allowed or not, in the discretion of the court, unless otherwise provided by law. Code, s. 527. 1268. When in discretion of the court. Costs in the following matters shall be taxed against either party, or apportioned among the parties, in the discretion of the court : 1. Application for year's support, for widow or children. 2. Caveats to wills. 3. Habeas corpus ; and the court shall direct what officer shall tax the costs thereof. 4. In actions for divorce or alimony; and the court may both before and after judgment make such order respecting the payment of such costs as may be incurred by the wife, either by the husband or by her from her separate estate as may be just. 5. Application for the establishment, alteration or discontinuance of a ]iu]ilic road, cartway or ferry. The board of road su])ervisors or board of county commissioners may order the costs incurred before them paid in their discretion. 6. The compensation of referees and commissioners to take depo- sitions. 357 1268 COSTS—///. Civil Actions. Ch. 22 7. All costs and expenses incurred in special proceedings for the division or sale of either real estate or personal property under the chapter entitled Partition. 8. In all proceedings under the chapter entitled I)rainiiig Low- lands, except as therein otherwise provided. 9. In proceedings under section six hundred and ninety-one. Code, ss. 2134, 2161, 1660, 1294. 2039, 2056, 533, 1422, 1323; 1889, c. 37; 1893, c. 149, s. 6. Note. See ss. 54. 58, 339, 407. 1269. Petitioner pays, when. The petitioner shall pay the costs in the following proceedings : 1. In petitions for draining or damming lowlands. 2. In petitions for condemnation of Avater mill sites when the petitioner is alloM'ed to erect the mill ; but when he is not allowed to erect the mill, the costs shall be paid by the person who is allowed to do so. 3. In petitions for condemnation of land for railroads, street rail- ways, telegraph, telephone or electric power or light companies, or for water supplies for public institutions, or for the use of other quasi-public or municipal corporations ; unless in tlie opinion of the superior court the defendant improperly refused the privilege, use or easement demanded, in which case the costs must be adjudged as to the court may appear equitable and just. 4. When the petition is refused. Code, ss. 1290, 1855, 2013; 1893, e. 63; 1903, c. .562. 1270. Defendant pays, unreasonably defending action after notice, no personal claim. In case of a defendant, against whom no personal claim is made, the plaintiff may deliver to such defendant with the summons, a notice subscribed by the plaintiif or his attorney, setting forth the general object of the action, a brief description of the property affected by it, if it affects real or personal property, and that no personal claim is made against such defendant. If a defendant on Avhom such notice is served unreasonably defends tlie action, he shall pay costs to the plaintiff. Code, s. 210. 1271. None allowed to party suing on usurious contract. Xo costs shall be recovered by any party, wdiether plaintiff or defendant, who may endeavor to recover upon any usurious contract. 1895, c. 69. Note. See ss. 1950, 1951. 1272. In special proceedings. The costs in special proceedings shall be as allowed in civil actions, unless otherwise specially pro- vided. Code, s. 541. 358 1273 COSTS—///. Civil Actions. Ch. 22 1273. Allowed in supplemental proceedings. The court or judge may allow to the judgment creditor, ur to any party examined in proceedings supplemental to execution, whether a party to the action or not, witnesses' fees and disbursements. Code, s. 499; C. C. P., s. 273. 1274. Laying off homestead and exemptions. The costs and expenses of appraising and laying oii' the homestead or personal property exemptions, when the same is made under execution, shall be charged and included in the officer's bill of fees upon such execu- tion or other final process; and when made upon the petition of the owner, they shall be paid by such owner, and the latter costs shall be a lien on said homestead. Code, s. 510. 1275. On re-assessment of homestead. If the superior court at term shall confirm the appraisal or assessment, or shall increase the exemption allowed the debtor or claimant, the levy shall stand only upon the excess remaining, and the creditor shall pay all the costs of the proceeding in court. If the amount allowed the debtor or claimant shall be reduced, the costs of the proceeding in court shall be paid by the debtor or claimant, and the levy shall cover the excess then remaining. Code, s. 521. 1276. Against infant plaintiff, guardian responsible. When costs are adjudged against an infant plaintiff, the guardian by whom he appeai'ed in the action shall be responsible therefor. Code, s. 534. 1277. Actions by or against executors, trustees or persons authorized by statute, in an action prosecuted or defended by an executor, administrator, trustee of an express trust, or a person expressly authorized by statute, costs shall be recovered as in an action by and against a person prosecuting or defending- in his own right; but such ccsts shall be chargeable only upon or collected out of the estate, fund or party represented, unless the court shall direct the same to be paid by the plaintiff or defendant, personally, for mismanagement or bad faith in such action or defense. And when- ever any claim against a deceased person shall be referred, the pre- vailing party shall be entitled to recover the fees of referees and witnesses, and other necessary disbursements, to be taxed according to law. Code, s. 535. Note. See ss. 92, 97, 1799. 1278 COSTS—///. Ciril Actions. Cli. 22 1278. Assignee after action brought, liable for. In actions in whic'h the cause of action shall bocduie bv assignment after the com- mencement of the action, or in any other manner, the property of a person not a party to the action, such person shall be liable for the costs in the same manner as if he were a party. Code, s. 539. IV. On Appeals. 1279. Generally. On an ajipeal from a justice of the peace to a superior court, or from a superior court or a judge thereof, to the supreme court, if the appellant shall recover judgment in the appel- late court, he shall recover the costs of the appellate court and those he ought to have recovered below, had the judgment of that court been correct, and also restitution of any costs of the court aj)- pealed from which he shall have paid under the erroneous judg- ment of such court. If in any coiirt of appeal there shall be judg- ment for a new trial, or for a new jury, or if the judgment ap]iealed from be not wholly i-eversed, but partly affirmed and partly dis- affirmed, the costs shall be in the discretion of the appellate court. Code. s. 540. 1280. Of transcript on appeal taxed in supreme court. When- ever an ajipeal is taken from the sujiorinr court to the su]irenu' court the clerk of the sui)erior court, when he sends up the transcri]it, shall send therewith an itemized statement of the costs of making up the transcript on appeal, and the costs thereof shall be taxed as a ])art of the costs of the su])reme court. 1905. c. 4.56. 1281. From justices of the peace. .Vftcr an aiijical from the judgment of a justice of the peace shall be filed with a clerk of a su])erior court, the costs in all subsequent stages shall be as herein provided for actions originally brought to the superior court. Code, s. 542. 1282. Not allowed plaintiff unless his recovery is greater than before justice, if on apjieal from a justice of the peace judgment be entered for the plaintiff, and he shall not recover on his a]ipeal a greater sum than was recovered before the justice, besides interest accrued since the rendition of the judgment, he shall not recover the costs of the appeal, but shall be liable at the discretion of the court to pay the same. Code, s. 500; Yi. C, c. 31, s. 100; 1704, c. 414, s. 17. 13S3 COSTS— T'. Counties in. Crimiual Actions. Ch. 2l' V. Liability of Counties in Cieiminal Actions. 1283. County pays, when. If there be no prosecutor in a crimi- nal auticin, and the tlefendant shall be acquitted, or convicted and unable to pay the costs, or serves out a sentence on the public roads of ^>ew Hanover county, or a nolle prosequi be entered, or judgment arrested, the county shall pay the clerks, sheriffs, constables, justices and witnesses one-half their lawful fees only ; except in capital felonies and in jirosecutions for forgery, perjury and conspiracy, when they shall receive fuJl fees. And in the following counties the county shall pay one-half their lawful fees, when ''not a true bill" is found : Bertie, Brunswick, Caswell, Catawba, Chatham, Clay, Craven, Davie, Duplin, Gaston, Granville, Greene, Plenderson, Iredell, Jackson, Johnston, Jones, Lenoir, Madison, McDowell, Meck- lenburg, Montgomery, I'^orthampton, Onslow, Orange, Pamlico, Pen- der, Pitt, Richmond, Rowan, Rutherford, Sampson, Stanly, Stokes, Surry, Swain, Transylvania, Wake, Wilkes and Yadkin. And no county shall pay any such costs, unless the same shall have been approved, audited and adjudged against the county as provided in this chapter. All Avitnesses subpoenaed by order of court to appear before the grand jury in Martin county, and who do attend, and all other witnesses who may testify in open court on the part of the state, shall be allowed to prove attendance and collect one-half fees. In the counties of Brunswick and Catawba the county shall not he liable for any part of the costs of justices of the peace. Code,\s. 73.3, 739; 1901, cc. 7i5, 76.5; 1903, cc. .57. 73, 288, 298. 581 : 190.5. c. 1.34, s. 3; 1905, ce. 203, 324, 362, 370. 375. 511. .598; R. C. c. 28. s. 8 ; R. S.. c. 28, s. 12; 1874-5, c. 247. 1284. County liable in supreme court, when. If on appeal to the supreme court in criminal actions the defendant is successful, the county from which the appeal was taken shall pay one-half the costs of the appeal, and all such sums as have been properly expended by the defendant for the transcript of the record and printing done under the rules of the court. 1285. County where offense committed to pay costs; if not paid, prisoner returned, in all cases where tin- county is lial)le to pay costs, that county wherein the offense is alleged to have been committed shall be adjudged to pay them. The costs taxed in any case removed from another county for trial shall include the fees and expenses allowed for summoning the special venire, if one is ordered in the case, and the per diem and mileage of jurors who are empaneled to try the case, together with all other costs and expenses of the trial of the case, the ainoiuit of which, if not provided for by law, to be fixed by the presiding judge, so as to fully relieve the 1285 COSTS— F. Counties in Criminal Actions. Ch. 22 county in which the trial is had of all costs and expenses thereof. All fines, forfeitures, penalties and amercements imposed or levied in the case shall belong to the county from which the case was removed and be paid to the treasurer of said county. When a pris- oner is sent from one county to another to be held for trial, or for any other cause or purpose, the county from which he is sent shall pay his prison expenses, unless the same shall be collected from him on or before the first Monday in each month, and upon a failure to do so, it shall be the duty of the county to which he is sent to pay the same to the sheriff or jailer entitled to receive it at the same rate and under the same regulations as its own prison expenses are paid; and the coimty liable shall repay the same within thirty days after denumd, and upon failing to do so the county to which the money is due shall be entitled to recover in the su])erior court, or, if the amount be within its jurisdiction, the coiirt of just- ices of the peace of its own county, the amount due, with ten per cent, additional, together with eight per cent, interest on the sum due ; and said courts of said county shall have full jurisdiction to hear, try and determine all actions and proceedings that may be brought for the purpose of enforcing the collection of the same: Provided, that when the county to which such prisoner has been sent has paid the prison expenses and has made demand therefor upon the county liable as above provided and such demand be not complied with within ten days, the sheriff or jailer shall at once return such prisoner to the county from which such prisoner was sent, and deliver him to the sheriff or jailer thereof. 1889, e. 354; 1901, c. 718. 1286. Statement of, chargeable to county, filed with commis- sioners. In all criminal actions M-herc the county is liable in whole or in part for costs, it shall be the duty of the clerks of the courts to make out a statement of such costs from the record or docket, within thirty days after the hearing, trial, determination, or other disposition thereof, and file the same with the board of commission- ers of the county. Code, s. 736; 1873-4, c. 116, s. 3. 1287. Expense incurred in going after prisoner, how paid. When a sheriff or utlicr (ithccr sliall arrcsl a |K'r-iiii unil(>r a capias or otlier legal proce-ss, which requires liim to have tlie jicrson arrested before a cf>urt or judge of aaiothcr county, and sucli sheriff or other officer shall be obliged to incur expense in the safe delivery of such person by reason of his failing to give bond for his appearance, or if the sheriff or other officer of the county to which the prisoner is to be carried shall incur any expense in going for and conveying said 1287 COSTS — V. Counties in Criminal Actions. Ch. 22 prisoner to his county, then in either case, the sheriff or other officer shall file with the court or judge issuing the capias or other legal process and with the register of deeds an itemized and sworn accoiint of such expenses, which shall be presented by the register to the board of commissioners at their next regular meeting to be audited by them. Such sworn statement shall be received by the said board as prima facie correct. Upon such auditing the board of commissioners shall cause to be issued to such sheriff or other officer an order on the county treasurer for the amount so audited and allowed by them, and shall notify the court or judge of their action, to the end that the amount so allowed shall be taxed in the costs to the use of the county. 1885, c. 262; 1901, c. 64. 1288. LynchingS, costs of investigation. In all cases of investi- gation and trial of the crime of lynching, the entire cost incurred in the proseciition, unless paid by the person or persons convicted, shall be paid by the county wherein the crime shall have been committed. And whenever any solicitor goes to a county to investigate a crime of breaJving' or entjcring a jail for the purpose of lynching, the county where such crime is committed shall pay the solicitor the sum of one hundred dollars for making the investigation. ISflS, c. 461, s. 6. 1289. When county pays state's witnesses. Witnesses sum- moned or recognized on behalf nf the state to attend on any crimi- nal prosecution in the siiperior or criminal courts where the defend- ant is insolvent, or by law shall not be bound to pay the same, and the court does not order them to be paid by the prosecutor, shall be paid by the county in which the prosecution was commenced. And in all cases wherein witnesses may be summoned or recognized lo attend any such court to give evidence in behalf of the state, and the defendant shall be discharged, and in cases where the defend- ant shall break jail and shall not afterwards be fetaken, the court shall order the witnesses to be paid. Code, s. 740; R. C, c. 28, s. 9; 1804, c. 665; 1819, e. 1008; 1824, c. 1253. 1290. When county pays defendant's witnesses. When the defendant shall be acquitted, a nolle prosequi entered, or judgment iigainst him arrested, and it shall be made to appear to the court, liy certificate of counsel or othenvise, that said defendant had wit- nesses, duly subpoenaed, boiind or recognized, in attendance, and that they were necessary for his defense, it shall be the duty of the court, unless the prosecutor be adjudged to pay the costs, to make and file an order in the cause directing that said witness be paid by the 1290 COSTS— T'. CoiinUcs in Crimiiml Actionf:. Ch. 22 coimty in such manner and to such extent as is authorized by law for the payment of state's witnesses in like cases. Code, s. 747; 1879, c. 20-1; 1881, e. 312. VI. Liability of Defexdant ix Crimixal Actions. 1291. When defendant pays. Every person convicted of ail offense, or confessing himself guilty, or submitting to the court, shall pay the costs of prosecution. Code, s. 1211; R. C, e. 35, s. 46. 1292. Defendant imprisoned, detained until cost paid. If the sentence be that the guilty person be imprisoned fur a time certain, and that he pay the costs, there shall be added to it that he shall remain in j^rison after the expiration of the fixed time for his imprisonment until the costs shall be paid, or until he shall other- wise be discharged according to law. Code, s. 905; 18G8-9, c. 178. 1293. Confession of judgments to secure fine and cost, in cases where a court, mayor or a justice of the peace permits a defendant convicted of any criminal offense, to give bond or confess judgment, with sureties to secure the fine and costs which may be imposed, the acceptance of such security shall be upon the condition that it shall not operate as a discharge of the original judgment against the defendant nor as a discharge of his person from the custody of the law until the fine and costs are paid. Code, s. 749; 1885, c. 364; 1879, c. 264. 1294. Defendant failing to pay, may be arrested, in default of payment of such fine and costs, it shall bo the duty of the court at any subsequent term thereof on motion of the solicitor of the state to order a capias to issue to the end that such defendant may be again arrested and held for the fine and costs until discharged according to law; and a justice of the peace or mayor may at any subsequent time arrest the defendant and hold him for the fine and costs until discharged according to law. Code, s. 750; 1885, c. 304; 1879, c. 204. VII. The Peosecutoi!. 1295. Who is prosecutor; when pays costs. In all criiniiuii actions, if the defendant be acquitted, nolle prosequi entered, judg- ment against him arrested, or if the defendant sliall be disclmrged from arrest for want of probable cause, the costs, including the fees of all witnesses summoned for the accused, whom the judge, court 121)5 COSTS— 177. The Frosccutoi: Ch. 22 or justice of the peace before whom the trial took place shall certify to have been proper for the defense, shall be paid by the prosecutor, whether marked on the bill or warrant or not, whenever the judge, court or justice shall be of ojiinion that there was not reasonable ground for the prosecution, or that it was not required by the j:)ublie interest. And every judge, court or justice is hereby fully author- ized to determine who the prosecutor is at any stage of a criminal proceeding, whether before or after the bill of indictment shall have laeen found, or the defendant acquitted : Provided, that no person shall be made a prosecutor after the finding of the bill, unless he shall have been notified to show cause why he should not be made the jirosecutor of record. Code, s. 737; 1889, c. 34; R. C, c. 35, s. 37; 1799, c. 4, s. 19; 1800, c. 558; 1868-9, c. 277; 1874-.5, c. 151; 1S79, c. 49. 1296. Pay of witnesses in criminal cases. All witnesses sum- moned or recognized in behalf of the state shall be allowed the same pay for their daily attendance, ferriage and mileage as is allowed to witnesses attending in civil suits ; and such fees for attendance shall be paid by the defendant, only upon conviction, confession or .sub- mission ; and if the defendant be acquitted on any charge of an infe- rior nature, or a nolle prosequi be entered thereto, the coiirt shall order the prosecutor to pay the costs, if such prosecution shall appear to have been frivolous or malicious ; but if the court shall be of opin- ion that such prosecution was neither frivolous nor malicious, and a greater nimiber of witnesses have been summoned than were, in the opinion of the court, necessary to support the charge, the court may, nevertheless, order the prosecutor to pay the attendance of such unnecessary witnesses, if it appear that they were summoned at his special request. Code, s. 1204; R. C, c. 35, .s. 37; 1800, c. 558, s. 1; 1879, c. 49; 1879, c. 92, s. 3; 1881, c. 176. 1297. When imprisoned for. Every such prosecutor may be adjudged not only to pay the costs, but he shall also be imprisoned for the nonpayment thereof, when the judge, court, or justice of the peace before whom the case was tried shall adjudge that the prose- cution was frivolous or malicious. Code, s. 738; R. C, c. 35, s. 37; 1800, c. 558; 1879, c. 49; 1881, c. 176. VIII. Witnesses. 1298. Not entitled to, in advance. Witnesses are not entitled to receive their fees in advance ; but no witness in a civil action or special proceeding, unless .summoned on behalf of the state or a municipal corporation, shall be compelled to attend more than one 1298 COSTS— T//Z. Witnesses. Cli. 22 day, if the party by or for whom he was summoned, shall, after one day's attendance, on request and presentation of a certificate, fail or refuse to pay what then may be due, for traveling to the place of examination, and for the number of days of attendance. Code, s. 1308; 1868-0, c. 279, subsec. 11, s. 3. 1299. Must prove attendance; may recover therefor. Every person summoned, who shall attend as a witness in any suit; shall, before the clerk of the court, or before the referee or officer taking the testimony, ascertain by his own oath or affirmation the sum due for traveling to and from court, attendance and ferriage, which shall be certified by the clerk; and on failure of the party, at whose instance such witness was suirunoned (witnessing for the state and municipal corporations excepted), to pay the same previous to the departure of the witness from court, .such witness may at any time sue for and recover the same from the party summoning him ; and the certificate of the clerk .shall be sufficient evidence of the debt. Where recovery may be had before a justice of the peace on a wit- ness ticket, the justice shall deface it by writing the word judgment, and deliver tlie same to the person of whom it is recovered. Code, s. 1369; R. C, c, 31, s. 73; 1777, c. 115, s. 46; 1796, c. 458; 1868-9, e. 279, subchap. 11, ss. 2, 4. 1300. Tickets filed with olerl<; only two to prove same fact. At the court where the cause shall be finally determined the party recov- ering judgment shall file in the clerk's office the witness tickets ; the amount whereof shall be taxed in the bill of costs, to be levied and recovered for the benefit of said party. The party cast shall not be obliged to pay for more than two witnesses to prove a single fact. Code, s. 1370; R. C, c. 31, s. 74; 1783, c. 189, s. 3; 1796. c. 458, s. 2. 1301. Pay of, before jury of view or commissioner. Witnesses summoned to appear at any survey, or before any jury of view, or before any commissioner, arbitrator, referee, or other ])erson author- ized to require their attendance, shall be entitled to the same fees as for similar attendance at the court of the county, and may prove, by their OAvn oath, their attendance, mileage, and ferriage before such per.son, who is hereby authorized to administer the oatli ; and when they shall attend on any commission issuing from without the state, they may recover the fees for attendance against the party summon- ing them, or his agent or attorney directing them to bo summoned ; and when they shall attend under a commission or authority from any court in this state, the fees for attendance shall be proved as afore- said, and be certified to the ]n'oper court and taxed among tlio costs of the cause, as if the witness had altended the court; but never- 1301 COSTS— 1777. WiUiesses. Ch. 22 theless, such fees may be immediately recovered against the party summoning. Code, s. 1.365; R. C. c. 31, s. 67; 1805, c. 685; 1848, c. 66; 1850, c. 188, s. 3. 1302. When witness before grand jury. No witness shall receive pay for attendance in a criminal case before a grand jury unless such witness shall have been summoned by direction in writing of the foreman of the grand jury, or of the solicitor prosecuting, addressed to the clerk of the court, commanding him to summon such witness, stating the name of the parties against whom his testimony may be needed, or shall have been bound or recognized by some justice of the peace to appear before the grand jury. Code, s. 743; 1879, c. 264. 1303. State's paid, when; only two paid; one attendance, one day. jSTo jDcrsou shall receive pay as a witness for the state on the trial of any criminal action unless such person shall have been summoned by the clerk under the direction of the solicitor prosecuting in the court in which the action originated, or in which it shall be tried if removed ; and no solicitor shall direct that more than two witnesses shall be summoned for the state in any prosecution for a misde- meanor, nor shall any county or defendant in any such prosecution be liable for or taxed with the fees of more than two witnesses, iinless the court, upon satisfactory reasons appearing, shall otherwise direct. And no witness summoned in a criminal action or proceeding shall be paid by the county for attendance in more than one case for any one day ; nor shall the county be required to pay any such witness if his attendance shall be taxed in more than one case on the same day. Code, s. 744; 1871-2, c. 186; 1879, c. 264. 1304. Only two bound over on appeal in criminal action. When the defendant shall appeal from the judgment of the justice of the peace, in any criminal action, it shall be the duty of such justice of the peace to select and bind over on behalf of the state not more than two witnesses, and neither the county nor the defendant shall be liable for the fees of more than two witnesses on such appeal, unless additional witnesses shall be summoned by order of the appellate court as provided in the preceding section. Code, s. 745; 1879, e. 264. 1305. How discharged; certificate of attendance filed. It shall be the duty of all solicitors prosecuting in the several courts, as each criminal prosecution shall be disposed of by trial, removal, continu- ance or otherwise, to call and discharge the witnesses for the state, either finally or otherwise, as the disposition of the case may require ; 1305 COSTS— 17//. Witnesses. Ch. 22 and he shall thL-rcupou tile with the clerk of the eniirt a eertitieate giving' the names of the witnesses entitled to prove their attendance, with the date of their disehargx'. The said certiticato shall be in tiie following or similar form, and blanks thereof shall be furnished to the solicitor by the clerk at the county expense, viz. : iSTorth Carolina, County. Court, Term, 19 . .-. . State V Witness discharged .... day of 19 . . . , Solicitor. Code, s. 746; 1879, c. 264; 1881, c. 312. 1306. Not paid unless certified; discretion of judge. Xo county. prosecutor or defendant shall he liable to pay any witness, nor shall his fees be embraced in the bill of costs to be made \i\) as hereinbefore provided, unless his name be certified to the clerk by the solicitor, or included in the order of the court. And the judge or justice may, in his discretion, for satisfactory cause appearing, direct that the wit- nesses, or any of them, shall receive no jiay, or only a ])ortion of the comjjensation authorized by law: Provided, that the court, at any time within one year after judgment, may order that any witness may be paid, who for any good reason satisfactory to the court failed to have his fees included in the original bill of costs. Code, ss. 733, 748; 1879, c. 264; 1881, c. 312. IX. Criminal Costs Befoee Justices. 1307. Who pays in justice's court. The ]>arty convicted in a criminal action, or proceeding before a justice, shall always be adjudged to pay the costs; and if the party charged be acquitted, the complainant shall be adjudged to pay the costs, and may be imjiris- oned for the nonpayment thereof, if the justice shall adjudge that the ]n-osecution was frivolous or malicious. But in no action or pro- ceeding of which he has final jurisdiction, connnenced or tried in a court of a justice of the peace, shall the county be liable to pay any costs. Code, s. 895; 1868-9, e. 178; 1879, c. 92, s. 3; 1881, c. 176. 1308. Defendant imprisoned for. if ihe justice siiall sentence the party found by him to be guilty to pay a fine and costs, and the same shall not be immediately paid, the justice shall commit the guilty person to the county jail until the same shall be paid, or until he shall be otherwise discharged according to law. Code, s. 904; 1808-9, c. 178, subchap. 4. s. 15. Note. For costs in taking depositions to be used in another state, see s. 1655. For costs of advertising for creditors of deceased person, see Administration, s. 39. For fees to clerk superior court for issuing orders, etc., in guardianship mat- ters, see s. 1797. For security for costs, see ss. 450, 453. For execution for costs in supreme court, see Courts — Supreme. For costs in bastardy cases, see ss. 254, 255; in actions against guardians, see s. 1797; in habeas corpus proceedings, see s. 1859; in foreclosing liens, see Liens; in draining lowlands, see Drainage; when plaintiff refuses to accept tender of judgment, and fails to recover more, see s. 860 ; in pauper suits, see s. 451 ; in actions between landlord and tenant, see Landlord and Tenant; in actions to estab- lish public mills, see Mills; in partition proceedings, see Partition; in actions for forfeiture of corporate charter, see s. 1210. CI-IAPTEE 23. COUNTY COMMISSIONERS. Sections. I. Genera! provisions, 1309—1310 II. Election of, 1311—1316 III. Meetings. 1317 IV. Powers and duties, 1318—1323 V. Clerk to board. 1324—1326 VI. County poor. 1327—1334 I. General Provisions. 1309. Body politic; powers exercised by commissioners. Every county is a body loolitic and corporate, and shall have the powers prescribed by statute, and those necessarily' implied by law, and no others; which powers can only be exercised by the bunrd nf commis- sioners, or in pursuance of a resolution adopted by them. Code, ss. 702, 703; 1868, c. 20, ss. 1, 2; 1S76-7, c. 141, s. 1. 1310. Corporate powers. A county is authorized — 1. To sue and be sued in the name of the county. 2. To purchase and bold lands within its limits and for the use of its inhabitants, subject to the supervision of the general assembly. 3. To make such contracts, and to purchase and hold such personal property, as may be necessary to the exercise of its powers. Rev. Vol. 1—20 .son 1310 COUNTY COMHS.— General Provisions. Cli. 23 4. To make such orders for the disposition or use of its ])roperty as the interests of its inliabitants require. Code, s. 704; 1868, e. 20, s. 3. Note. For power to purchase land at public sales, see s. 2916. Note. For service of process, see s. 440. 11. Election of. 1311. By qualified voters; number. There shall be elected in each county of the state, cxcejit those mentioned in section one thou- sand three hundred and twelve, at the g;eneral election to be held in the year one thousand eight hundred and ninety-six, and every two years thereafter, by the duly qualified electors thereof, three persons to be chosen from the body of the county, who shall be styled "the board of commissioners for the county of " and shall hold their ofiice for two years from date of their qualification and \mtil their successors shall be elected and qualified. Provided, the num- ber of commissioners shall be five instead of three in the counties of Alamance, Bertie, Buncombe, Cabarriis, Carteret, Catawba, Co- lumbus, Craven, Cumberland, Durham, Edgecombe, Franklin, Gran- ville, Guilford, Halifax, Hertford, Johnston, Lenoir, Lincoln, Meck- lenbiirg, New Hanover, Northampton, Pasquotank, Perquimans, Richmond, Robeson, Rockingham, Rowan, Wake, Warren and Wayne ; and in the county' of Beaufort seven. In the county of Gas- ton six, one of whom must be a resident of Dallas township, one a resident of Gastonia township, one a resident of River Bend township, one a resident of South Point towTiship, one a resident of Crowder's Mountain township and one a resident of Cherrj'ville township. If at any time said board of commissioners for the county of Gaston shall be equally divided upon any qiiestinn pending before them and there shall be a tie vote, then and in that event the clerk of said board is aiithorizcd and empowered to cast the deciding vote and lo deter- mine such question. 1895, c. 135, s. 4; 1899, cc. 103, 147, 153, 187, 297. 301, .S40, 450, 467, 609; 1901, ce. 14, 00, 328, 3.30, 581; 1903, cc. 4, 7, 14, 36, 46. 59. 137, 203, 206, 207, 228, 265, 440, 515, 790; 1905, cc. 58, 73, 148, 338, 346. 397, .553. 1312. By justices of peace. The justices of the peace for Vance county, on the first Monday in .Time, one thousand eight liundrcd and eighty-four (and for Montgomery county on the first ]\ronday in June, one thousand nine hundred and five) and on the first Monday in June every two years thereafter, shall assemble at the courthouse of tlioir respective counties, and a majority being ]irpsent, sliall pro- 1312 COUNTY COMRS.— 77. Election of. Ch. 23 ceed to the election of not less than three nor more than five persons, to be chosen from the body of the county, excluding the jiistices them- selves, who shall be styled "the board of commissioners for the county of • ■ )" and shall hold their offices for two years from the date of their qualification, and until their successors shall be elected and qualified. Code, s. 71G; 1899, c. 488; 1887, e. 307; 1903, cc. 191, 207, 790; 1876-7, c. 1-11, s. 5 ; 1905, cc. 37, 44, 58, 73, 148, 340, 422. 1313. Meetings of justices of the peace in certain counties. For the joroiior discharge of their duties, the justices of the peace shall meet annually with the board of commissioners on the first Monday in June, unless they shall be oftener convened by the board of com- missioners, which is empowered to call together the justices of the peace not oftener than once in three months. For attending such meetings, the justices of the jDcace shall receive no compensation; but they shall keep a record of their meetings. The register of deeds shall be ex officio the clerk of the justices of the peace, and he shall receive such compensation for his services as the board of commis- sioners shall provide. This section shall apply only to the county of "Vance. Code, s. 717: 1899, e. 488; 1901, c. 680; 1903, ee. 191, 40, 207, 790; 1876-7, c. 141, s. 5; 1905, cc. 37, 44, 58, 73, 148, 340. 1314. Vacancies in board, how filled. In case of a vacancy occur- ring in the board of commissioners of a county, the clerk of the superior court for the county shall appoint to said office for the unexpired tenn, except in the county named in section one thousand three hundred and fifteen. Code, s. 719; 1895, c. 135, s. 7. 1315. Vacancies in board, how filled in certain counties. In case of a vacancy occurring in the board of commissioners of a county the justices of the peace for the county shall appoint to said office for the unexpired term. This section shall apply only to the county of Vance. Code, s. 719; 1899, c. 488; 1901, c. 680; 1903, cc. 40, 191, 207, 790; 1905, cc. 37, 44, 58, 73, 148, 340. 1316. When board to qualify; oath to be filed. The board of commissioners shall qualify and enter upon the duties of their office on the first Monday of December next succeeding their election, and they may take the oaths of office before the clerk of the superior court, or some judge, or justice of the ]icace or other jierson qualified by law to administer oaths. The oaths of otfice severally t;d<('n and 371 1316 COUNTY COMES.— 77. Election of. Ch. 23 subscribed by them shall be deposited with the clevk of the superior court. Code, s. 708; 18!I5, c. 135, s. 4. III. Meetings. 1317. Meetings of the board. The board of commissioners in each county shall hold a regular meeting at the courthouse, on the first -Mondays iu DeceiulKT and June. Special meetings may be held on the first Monday in every month, but shall not continue longer in session than two days. Meetings may be held at other times for the more convenient dispatch of business at the call of the chairman, on the written request of one member of the board, but public notice of the time and place of all such called meetings shall be posted at the courthouse door for not less than six days, and published one time in a county newspaper, if there is one. The board shall receive no compensation for attending such called meetings. The board may adjourn its regular meetings in December and June from day to day until the business before it is disposed of. Every meeting shall be open to all persons. A majority of the board shall constitute a quorum. At each regular December meeting the board shall choose one of its members as chairman for the ensuing year ; in his absence the members present shall choose a temporary chairman. Code, s. 706. Note. Meetings in certain counties are governed by special laws as follows: Mecklenburg, 1893, c. 199; Clay, 1889, c. 184; Forsyth, 1897, c. 437; Wake, 1899, c. 297; Durham, 1901, c. 309; Edgecombe, 1901, c. 429; Gaston, 190.3, c. 34. IV. Powers and Duties. 1318. Powers given board. The board of commissioners of the several counties shall have power — 1. TO EXEMPT FROM CAPITATION TAX. To exempt from capitation tax in special cases, on account of poverty and infinnity. 2. TO PROVIDE FOR THE PAYMENT OF DEBT. To provide by taxation or otherwise, for the prompt and regular payment, with interest, of any existing debt owing by any county. 13] 8 COUNTY COMES.— 77. Poivers and Duties. Ch. 23 3. TO SUBMIT PEOPOSITIONS TO CONTEACT DEBT TO A VOTE OF ELECTOES. To submit to a vote of the qualified electors in the county, after having obtained the approval of the general assembly, any proposi- tion to contract a debt, or loan the credit of the coimty, imder section seven, article seven, of the constitution; to order the time for voting upon such proposition, which shall be upon public notice thereof at one or more places in each township in the county, and p\iblica- tion in one or more county newspapers, if there be any, for three months next immediately preceding the time fixed on ; and such election shall take place and be conducted under the laws as pre- scribed for the election of members of the general assembly ; and the commissioners shall provide for giving effect, in case of the adoption of the proposition, to the expressed will of a majority of the qualified voters in such election. 4. TO MAKE OEDEES EESPECTING COEPOEATE PEOPEETY. To make such orders respecting the corporate property of the coimty as may be deemed expedient. 5. TO AUDIT ACCOUNTS. To audit accounts against the county, and direct the raising of the moneys necessary to defray them. fi. TO PUIiCIIASE PEOPEETY FOE ANY PUBLIC BUILDING, AND AT EXECUTION SALE. To purchase real property necessary for any public county build- ing, and for the support of the poor; and to determine the site tliereof, where it has not been already located ; and to purchase land at any execution sale, when it shall be deemed expedient to do so, to secure a debt due the county. The deed shall be made to the county, and the board mny, in its discretion, sell any lands so pur- chased. 7. TO DIVIDE COUNTY INTO TOWNSHIPS. To divide each county into convenient districts, called townships, and to determine the boundaries, and prescribe the names of said townships. A map and survey of said townships shall be filed in the office of the clerk of the board of commissioners, and also in the office of the secretarv of state. 1318 COUNTY COMES.— 7F. Powers and Duties. Ch. 23 8. TO OEDEK THE LAYING OUT, ALTERATION OR DISCONTINUING OF HIGHWAYS. To exercise authority in laying out, altering, repairing and dis- continuing highways ; in establishing and settling ferries ; in build- ing and keeping up bridges; in laying off or discontinuing cart- ways'; in providing draws in all bridges, where the same may be necessary for the convenient passage of vessels ; in appointing over- seers of highways; in excusing persons from working on the high- ways; in allowing and contracting for the building of toll-bridges, and taking bond from the builders thereof; and in licensing the erection of gates across highways. This a^ithority shall be exercised under the rules, regulations, restrictions and penalties in all respects prescribed and imposed in the chapter entitled Roads, Ferries and Bridges. 9. TO RAISE HIGHWAY HONEYS. To raise by tax the necessary highway moneys, in such manner as may be prescribed by law. 10. TO APPOINT AN INSPECTOE OF HIGHWAYS AND BRIDGES. To appoint an inspector of highways and bridges for the county, if deemed necessary; to fix and provide for his compensation and regulate his duties, not inconsistent with the laws of the state. The commissioners of two or more counties may unite in employing an inspector of highways and bridges, and apportioning his compensa- tion between the respective counties as may be agreed upon. 11. TO PROVIDE FOR THE EMPLOYMENT OF PRISONERS. To provide for the employment on the highway or public works in the county of all persons condemned to imprisonment with hard labor, and not sent to the penitentiary. 12. TO APPOINT PROXIES TO REPRESENT COUNTY. To appoint proxies to represent in any annual or other meeting, the shares or interest held by any county in a railroad company, or other corporation, under the charter of such corporation, or under any special acts of the general assembly, authorizing county sub- scriptions in such cases. 13. TO SELL OR LEASE REAL PROPERTY. To sell or lease any real property of the county and to make deeds or leases for the same to any purchaser or lessee. 374 1318 COUNTY COMRS.— 7F. Powers and Duties. Ch. 23 14. TO PROVIDE FOE THE MAINTENANCE OF THE POOE. To provide by tax for the maintenance, comfort and well-ordering of the poor; to employ, biennially, by public letting or otherwise, some competent person as overseer of the poor, to institute proceed- ings by the warrant of the chairman against any person coming into the county who is likely to become chargeable thereto, and cause the removal of such poor person to the county where he was last legally settled ; and to recover by action in the superior court from the said county, all the charges and expenses whatever, incurred for the maintenance or removal of such poor person. 15. TO ESTABLISH PUBLIC HOSPITALS. To establish public hospitals for the county in cases of necessity, and to make rules, regiilations and by-laws for preventing the spread of contagious and infectious diseases, and for taking care of those afflicted thereby, the same not being inconsistent with the laws of the state; and to raise by taxation the necessary moneys to defray the charges and expenses so incurred. 16. TO PEOCUEE WEIGHTS AND MEASUEES. To procure for each county sealed weights and measures, according to the standard prescribed by the congress of the United States; and to elect a standard keeper, who shall qualify before the board and give bond approved by the board, as prescribed by law. 17. TO APPOINT COMMISSIONERS TO OPEN EIVEES AND CEEEKS. To appoint a commissioner to open and clear the rivers and creeks within the county, or where such river or creek forms a county line or a part thereof. For this purpose the board is authorized to withdraw from the public roads such hands as may be deemed neces- sary, and allot them to such work under overseers and the direction of the commissioner. The board may impose the duties of this subdivision on the inspector of highways and bridges when ap- pointed ; and shall in all respects conduct the opening and clear- ing of such rivers and creeks as prescribed by law. 18. TO LICENSE PEDDLERS AND EET.ilLERS OF SPIEITUOUS LIQUOES. To license peddlers and retailers of spirituous and other liquors as prescribed by law. No license shall be good for more than one 1318 COUNTY COMES.—/!'. J'oirers and Duties. Cli. 23 year, nor granted to two or more persons to peddle as partners in trade. And the board of commissioners shall grant licenses for the sale of spirituous liquors to all persons possessing the qualifications required by law, except in those localities where the sale of spirit- uous liquors shall be prohibited by law. 19. TO ESTABLISH PUBLIC LANDINGS^ PLACES OF INSPECTION, AND INSPECTOES. To establish such public landings and places of inspection as the board of commissioners may think proper ; and to appoint such inspectors in any town or city as may be authorized by law. 20. TO LICENSE AUCTIONEERS. To license for tlie term of one year any number of persons to exercise the trade and business of auctioneers in each county, and to take their bonds as prescribed by law. 21. TO REQUIRE FROM ANY COUNTY OFFICER A REPORT UNDER OATJI. To require from any county officer, or other person employed and paid by the county, a report under oath at any time, on any matters connected with his duties. 22. TO AUTHORIZE CIIAIRIIAN TO ISSUE SUBPCENAS. To authorize the chairman to issue subpoenas to compel the attend- ance before the board, of persons, and the production of books and papers relating to the affairs of the county for the purjiose of examination, on any matter within the jurisdiction of the board. The subpoena shall be served by the sheriff or any constable to whom it is delivered ; and upon return of personal service thereof, whoever neglects to comply with the subpoena or refuses to answer any proper question, shall be guilty of contempt and punishable therefor by the board. A witness is bound in such case to answer all the questions which he would be bound to answer in like case in a court of justice; but his testimony given before the board shall not be used against the witness on the trial of any criminal prosecution other than for per- jury committed on the examination ; the chairman of the board of county commissioners for each county is authorized in his official capacity to administer oaths in any matter coming before either of such boards. Any member of such board while temporarily act- ing as such chairman shall have and exercise like authority. 37G 1318 C0U:NTY COMRS.— IV. Poivers and Duties. Ch. 23 23. TO APl'KOVE BONDS OF COUNTY OFFICERS AND INDUCT TUEM INTO OFFICE. To qualify and induct into office at the meeting of the board, on the first Monday in the month next succeeding their election or appointment, the following named county ofiicers, to-wit: Clerk of the superior court, sheriff, coroner, treasurer, register of deeds, sur- veyor, and constable; and to take and approve the ofiicial bonds of such officers, which the board shall cause to be registered in the office of the register of deeds. The original bonds shall be deposited with the clerk of the superior court, except the bond of the said clerk, which shall be deposited with the register of deeds, for safe-keeping: Provided, however, that if the said board shall declare the official bonds of any of said county officers to be insufiicient, or shall decline to receive the same, the said officers may appeal to the superior court judge riding the district in which said county is, or to the resident judge of said district, as he may elect, who shall hear said appeal in chambers, at any place in said district which he shall desigTiate, within ten days after notice by him of the same, and if, upon the hearing of said appeal, the judge shall be of the opinion that the said bond is sufficient, he shall issue an order to the said board of commissioners to induct the said officer into office, or that he shall be retained in office, as the case may be; but if, upon the hearing of said appeal, the judge shall be of the opinion that the bond is insufficient, he shall give the appellant ten days in which to file before him an additional bond, and if the appellant shall within the said ten days file before the said judge a good and sufficient bond, in the opinion of said judge, he shall so declare and issue his order to said board directing and requiring them to induct the appellant into office, or retain him, as the case may be; but if, in the opinion of the said judge, both the original and the additional bonds are insufficient, he shall declai-e the said office vacant and notify the said commissioners, A\'ho shall notify the clerk of the superior court, who shall appoint to fill the vacancy, except in cases of the clerk of the superior court, which vacancy shall be filled by the resident judge. The judginent of the superior court judge shall be final. The appeal and the finding and judgment of the suj^erior coiirt judge shall be recorded on the minutes of tlie board of commissioners. 24. TO ADOPT A COUNTY SEAL. To adopt a seal for the county, a description and impression whereof shall be filed in the office of superior court clerk and of the secretary of state. 877 I 1318 COUNTY COMES.— 7F. Poivers and Dulics. Ch. 23 25. TO LEVY COUNTY TAXES. To levy, in liko manner witli the state taxes, the necessary taxea for county purposes ; but the tnxes so levied shall never exceed the double of the state tax, except for a special purpose, and with the special approval of the general assembly. All county taxes shall be levied at the regular meeting of the board on the first Monday in | June. The board may extend the time for the collection and settle- | ment of the county taxes to S\ich time as may be deemed expedient, ■ not beyond the first day of May next after the taxes were levied. 26. TO EKECT AND REPAIR COUNTY BUILDINGS. 1 I To erect and repair the necessary county buildings, and to raise, J by taxation, the moneys therefor. 27. TO BORROW MONEY. To borrow money for the necessary expenses of the county, and to provide for its payment, with interest, in periodical instalments, by taxation. 28. TO DESIGNATE SITE FOR COUNTY BUILDINGS. To remove or designate a new site for any coimty building; but the ii site of any county building already located shall not be changed, I) unless by an unanimous vote of all the members of the board at the ' regular December meeting, and unless ujion notice of the proposed i change, specifying the new site. Such notice shall be published in i a newspajDer printed in the county, if there is one, and posted in i one or more public places in every township in the co\nitv for three ' months, next immediately preceding the annual meeting, at which i the final vote on the proposed change is to be taken. Such new site i shall not be more than one mile distant from the old, except upon the : special approval of the general assembly. 29. TO CONSTRUCT AND REPAIR BRIDGES. To construct and repair bridges in the county, and to raise by j tax the money necessary therefor, and when a bridge is necessary i over a stream, which divides one county from another, the board of i commissioners of each county shall join in constructing or repairing | such bridge ; and tlio charge thereof shall be defrayed by the conn- tics concerned, in proportion to the nmnber of taxable polls in each. »78 I 1318 COUNTY COMES.— /F. Powers ami Duties. Ch. 23 30. TO ERECT, DIVIDE OE ALTER TOWNSHIPS. To erect, divide, change the names of, or alter townships in the manner following: In any county, any three freeholders of each township to be affected, may, after the notice presently to be men- tioned, apply b}"- petition to the board of commissioners, to erect a new township, or divide an existing township, or change the name of or alter the boundaries thereof. Notice of the a]jplication shall be posted in one or more public places in each of such townships, and published in a newspaper printed in the county, if there is one, for at least four weeks preceding the meeting at which the application is made to the board. No township shall have or exercise any cor- porate powers whatsoever, vmless authorized by an act of the gen- eral assembly, to be exercised under the supeiwision of tlie board of commissioners. 31. TO PROVIDE FOR A HOUSE OF CORRECTION. To make provision for the erection in each county of a house of . correction, where vagrants and persons guilty of misdemeanors shall 1 be restrained and usefully employed; to regulate the employment of labor therein ; to appoint a superintendent thereof, and such assist- 1 ants as may be deemed necessary, and to fix their compensation. 32. TO REGUL.VTE SPEED OF AUTOMOBILES. f iTo regulate the speed of automobiles, motor-cycles and other like vehicles on the public roads and bridges, and make such ordinances as they may deem necessary governing the same. This subsection shall I not apply to the counties of Mecklenburg and New Hanover. I 1319. Powers in certain counties, in the counties of Montgomery and Vance, the powers conferred by subsections twenty-five and twenty-eight of the preceding section shall be exercised only with the concurrence of a majority of the justices of the peace, sitting with them ; and the powers conferred by subsections thirteen, twenty-six, twenty-seven, thirty and thirty-one of the preceding section shall be exercised only with tlie concurrence, or assent of a majority of the jus- tices of the peace; and the ])owers conferred in subsection twenty-nine of the preceding section shall not be exercised witliout the concurrence of the justices of the peace, where the costs exceed five hundred dol- lars; and in said counties subsection twenty-three of the preceding sec- tion shall not be enforced, but the following shall govern, to-wit: To qualify and induct into office at the meeting of the board on the first 379 1319 COUNTY COilRS.— /T'. Powers ami Duties. ' Ch. 23 Monday in the month next succeeding their election or appointment the following-named county officers, to-wit: Clerk of the superior court, sheriff, coroner, treasurer, register of deeds, sun'ejor and con- stable ; and to take and ajiprove the official bonds of said officers, which the board shall cause to be registered in the office of the regis- ter of deeds. The original bonds shall be dejiosited with the clerk of the sujierior court, except the bond of the said clerk, which shall be deposited Math the register of deeds for safe-keeping. Code, s. 707; 1895, c. 135; 1899, c. 89; 1899, c. 1C6; 1899, c. 488; 1901, c. G80 ; 1903, c. 790 ; 1905. c. 422. 1320. Purchase of county indebtedness. The board of commis- sioners may purcha.se at any price, not exceeding their par value and accumulated interest, any of the outstanding bonds or other indebted- ness of the county. Code, s. "IS. 1321. To fill vacancies in certain offices. Whenever a vacancy shall occur in the offices of sheriff, constable, coroner, register of deeds, county treasurer or county surveyor, the board of commission- ers of the coxmty shall fill the same by appointment. Code, s. 720. 1322. To settle disputed county lines. Whenever there shall be any dispute concerning the dividing line between counties, the board of commissioners of each county interested in the adjustment of said line, a majority of the board consenting thereto, may appoint one or more commissioners, on the part of each county, to settle and fix the line in dispute ; and their report, when ratified by a majority of the commissioners in each county, shall be conclusive of the loca- tion of the true line, and shall be recorded in the register's ofiice of each county, and in the office of the secretary of state. Code. s. 721; R. C, c. 27; 1836, c. 3. 1323. Such commissioners, how sworn and paid. Such com- missioners, before entering on the duties assigned them, .shall be sworn before a justice of the peace; and they, with all others employed, shall lie allowed rea.sonable pay for their laliors, Cole for taxes, see s. 2814. 1324 COUNTY COMRS.— 7. Cleric to Board. Ch. 23 V. Cleek to BoAKn. 1324. Register of deeds ex officio; compensation. The register of deeds shall be ex officio clerk of, and his compensation shall be fixed by, the board of commissioners. Code, s. 710; 1895, c. 135, s. 4. 1325. Duties. It is the clerk's duty — 1. To record in a book to be provided for the purpose all the proceedings of the board. 2. To enter every resolution or decision concerning the payment of money. 3. To record the vote of each commissioner on any question sub- mitted to the board, if required by any member present. 4. To preserve and file in alphabetical, or other due order, all accoimts presented or acted on by the board, and to designate upon every account audited the amount allowed and the charges for which it was allowed. 5. To keep the books and papers of the board free for the exami- nation of all persons. 6. To administer oaths to all persons presenting claims against the county, but he shall receive no fee therefor. Code. s. 712; 1905, c. 530. 1326. To publish annual statement. The clerk shall annually, on or within five days next before the first Monday of December, make out and certify, and cause to be posted at the courthouse, and published in a newspaper printed in the county, if there be one, for at least four weeks, a statement for the preceding year, showing — 1. The amount, items and nature of all compensation audited by the board to the members thereof severally. 2. The number of days the board was in session, and the distance traveled by the members respectively in attending the same. 3. Whether any unverified accounts were audited, and if any, how much and for what. Code, s. 713. Note. Failure to publi.sli statement a misdemeanor, see s. 3592. For record to be kept of accoimts of funds by clerk of superior court, see s. 919. For courthouse, see s. 1335. For limit on county and other municipal indebtedness, see s. 2977. VI. County Pooe. 1327. County commissioners to provide for support of; super- intendent. The board of commissioners of each county is author- 1327 COUNTY COMES.— TV. County Poor. Ch. 23 ized to provide by taxation for the maintenance, and to do all such matters and things as may be deemed expedient for the comfort and well ordering, of the poor ; to employ biennially some competent per- son as superintendent of the county home for the aged and infirm, with power to remove him for cause; to institute proceedings against any person coming into the county who is likely to become charge- able thereto, and to cause the removal of such person to the county where he was last legally settled; and to recover by action from such county, all charges and expenses whatever incurred for the maintenance or removal of such poor person. Code, s. 3540; 1891, c. 138. 1328. County home for aged and infirm. All persons who may become chargeable to any county shall be maintained at the county home for the aged and infirm, or at such place or places as the board of commissioners may select or agree upon. Code, s. 3541; 1891, c. 138. 1329. How county home supported. The board of commission- ers may provide for the support of the persons admitted by them to the home for the aged and infirm by employing a superintendent at a certain sum, or by paying a specified sum for the support of such persons to any one who will take charge of the county home for the aged and infirm, as said board may deem for the best interest of the county and the cause of humanity. Code, s. 3543; 1876-7, c. 277, s. 3. 1330. Indigent persons owning property. AViienever any indi- gent person becomes chargeable to a county for maintenance and support in accordance with the provisions of this chapter, owning any estate, it shall be the duty of the board of commissioners of any county liable to pay the expenses of such indigent person, to cause the same to be sold for its indemnity or reimbursement in the man- ner provided in the chapter entitled Idiots, Inebriates and Lunatics, or they may take jiossession thereof and rent the same out and apply the rent toward the support of such indigent per.-^on. Code, s. 3547; 18G0, c. 49. 1331. Families of militiamen supported by county. When any citizen of the state is absent on service as a militiaman or member of the state guard, and his family are unable to support tlicmselves during his absence, the board of commissioners of his county, on application, shall make towards their maintenance such allowance as may be deemed reasonable. Code, s. 3546; K. C, c. 86, s. 14; 1779, c. 152. 382 1332 COUNTY COMRS.— 77. County Poor. Ch. 23 1332. Paupers not to be hired out by auction. No pauper shall be let out at public auction, but the board of commissioners may make such arrangements for the support of paupers with their friends or other persons, when not maintained at the county home for the aged and infirm, as may be deemed best. Code, s. 3542; 1876-7, c. 277, s. 2. 1333. Legal settlements, how acquired. Legal settlements may be acquired in any county, so as to entitle the party to be supported by such county, in the manner following, and not otherwise: 1. BY ONE YEAR''S EESIDENCE. Every person, who shall have resided continuously in any county for one year, shall be deeiued legally settled in that county. 2. MAEEIED WOMEN TO HAVE SETTLEMENT OF THEIR HUSBANDS. A married woman shall always follow and have the settlement of her husband, if he have any in the state; otherwise, her own at the time of her marriage, if she then had any, shall not be lost or suspended by the marriage, but shall be that of her husband, till another is acquired by him, which shall then be the settlement of both. 3. LEGITIMATE CHILDREN TO HAVE SETTLEMENT OF FATHER. Legitimate children shall follow and have the settlement of their father, if he have any in the state, until they gain a settlement of their own ; but if he have none, they shall, in like manner, follow and have the settlement of their mother, if she have any. 4. ILLEGITIMATE CHILDREN, THAT OF THEIR MOTIIEK. Illegitimate children shall follow and have the settlement of their mother, at the time of their birth, if she then have any in the state. But neither legitimate nor illegitimate children shall gain a settle- ment by birth in the county in which they may be born, if neither of their parents had any settlement therein. 5. SETTLEMENT TO CONTINUE UNTIL NEW ONE ACQUIRED. Every legal settlement shall continue till it shall be lost or defeated by acquiring a new one, within or without the state ; and upon acquiring such new settlement, all former settlements shall be defeated and lost. Code, s. 3544; R. C, c. 86, s. 12; 1777, e. 117, s. 16. 1834 COUNTY COMES.— F/. Countu Poor. Ch. 23 1334. Removed to proper county, at cost of that county; house- keepers entertaining poor, rpon cuiii]ilaiiit made by the chairman of the board of comity comniissiouers, before a justice of the peace, that any person has come into the county, who is likely to become chargeable thereto, the justice by his warrant shall cause such poor person to be removed to the county where he was last legally settled ; but if such poor jierson be sick or disabled, and can not be removed M'ithout danger of life, the board of commissioners shall provide for his maintenance and cure at the charge of the county ; and after his recovery shall cause him to be removed, and pay the charges of his removal ; and the county, wherein he was last legally settled, shall repay all charges occasioned by his sickness, maintenance, cure, and removal, and all charges and expenses whatever, if such person shall die before removal. And if the board of commissioners of the county, to which such jDOor jierson belongs, shall refuse to receive and pro- vide for him when removed as aforesaid, every commissioner so refusing shall forfeit and pay forty dollars, for the use of the county whence the removal was made ; moreover, if the board of commissioners of the countj', where such person was legally settled, shall refuse to pay the charges and expenses aforesaid, they shall be liable for the same ; and if any housekeeper shall entertain such poor person, and shall not give notice thereof to the board of commis- sioners of his county, or one of them, within one montli, the person so offending shall forfeit and pay ten dollars. Coile, s. -MiA?,; R. C, c. 86, s. 13; 1777. c-. 117, s. 17: 18.34, c. 21. CHAPTEIi 24. COUNTY PRISONS. Sections. I. Jails, 1335—1341 II. Prisoners kept and cared for, 1342 — 1348 III. Of adjoining county used, 1349 — 13.51 IV. Farming out prisoners, 13.52 — 13.54 V. Convicts on public roads, 1355 — 1350 VI. Houses of correction, 1360—1372' VII. Joint houses of correction, 1373—1375 I. Jails. 1335. Built and repaired by commissioners. There shall be kept and maintained in good and snilieient repair in every county, a courthouse and common jail, at the expense of the county, wherein 1335 COU^S^TY PRISONS—/. Jails. Ch. 2i the same are situated ; and the boards of commissioners of the sev- eral counties respectively shall lay and collect taxes, from year to year, as long as may be necessary, for the purpose of building, repairing and furnishing their several courthouses and jails, in sucli manner as they shall think proper ; and from time to time shall order and establish such rules and regulations for the preservation of the courthouse, and for the government and management of the prisons, as may be conducive to the interests of the public, and the security and comfort of the persons confined. Code, s. 782; R. C, c. 30, s. 1; 1741, c. 33, ss. 1, 2; 1795, c. 433, s. 1; 1S16, c. 911, s. 1. 1336. Five apartments. The common jails of the several coun- ties shall be provided with at least five separate and suitable apart- ments, one for the confinement of white male criminals ; one for white female criminals ; one for colored male criminals ; one for colored female criminals; and one for other prisoners. Code, s. 783: R. C, c. 30, s. 2; 1795, e. 433, s. 4; 1816, c. 911. Note. Misdemeanor to confine prisoners in improper apartment, see s. 3660. 1337. Heated. It shall be the duty of the board of commissioners in every coimty to have the common jails so heated by furnaces, stoves, or otherwise, as to render them warm and comfortable. Code. s. 784; 1879, c. 25, Note. Commissioners liable to indictment for failure to heat, see s, 3574. 1338. Bedding furnished. The board of county couunissioners, from time to time, as may be necessary, shall order the sheriff <:)f the county to purchase, for the use of their jail, a certain number of good warm blankets or other suitable bedclothing, which shall be securely preserved by the jailer, and furnished to the prisoners for their use and comfort, as the season or other circumstances may require ; and the sheriff, at least once in every year, shall report to the board of commissioners the condition and number of such blank- ets and bedclothing. Code. s. 3465; R. C, c. 87, s. 10; 1822, c. 1136. 1339. Prison bounds. For the preservation of the health of such persons as shall be committed to jail, the board of commissioners of each county shall mark out such a parcel of the land as they shall think fit, not exceeding six acres, adjoining the prison, for the rules thereof; and every prisoner not committed for treason or felony, giving bond with good security to the shcrift' of the county to keep within the rules, shall have liberty to walk therein, out of the prison, for the preservation of his health ; and on keeping con- tinually within the said rules, shall be deemed to be in law a true Rev. Vol. 1—21 385 1339 COUXTY PRISOXS— /. Jails. Ch. 24 prisoner; and that every person may know the true bounds of said rules, they shall be recorded in the county records, and the marks thereof shall be renewed as occasion may require. Code, s. 3466; R. C, c. 87, s. U; 1741, c. 33, s. 3. 1340. Bonds returned to court. Every bond taken of any per- son confined for an offense, or otherwise than on process issuing in a civil case, shall be returned to the court by whose order or process such person is confined, or which may be entitled to cognizance of the matter, and shall be of the force and effect of a recognizance; and on breach thereof shall be forfeited, and shall be collected as a forfeiture, in the name and for the use of the state, and applied as other forfeited recognizances. Code, s. 3407; R. C, e. 87, s. 12. 1341. Bond on capias in civil action. Every bond given by any person committed in arrest and bail, or in custody after tinal judg- ment, shall be assigned by the sheriff to the party at whose instance such person was committed to jail, and shall be returned to the office of the clerk of the court where the judgment was rendered, and shall have the force of a judgment; and if any person, who shall obtain the rules of any prison, as aforesaid, shall escape out of the same, before he shall have paid the debt or damages and costs according to the condition of his bond, the court where the bond is filed, upon motion of the assignee thereof, shall award execution against such person and his sureties for the debt or dam- ages and costs, with interest from the time of escape till payment; and no person committed to jail on such execution shall be allowed the rules of prison : Provided, the obligors have ten days' previous notice of such motion, in writing; but they shall not be admitted to deny the making of the bond in their answer, unless by affidavit they prove the truth of the plea. Code, s. 3469; R. C, c. 87, s. 14; 1759, e. G5. ss. 2, 3. II. Peisoxees Kept axd Caeed foe. 1342. United States prisoners lersonal, shall have been held by deed, will or otherwise, by any person or officer in trust for any county, or for any charitable use to be administered in, and for, the benefit of such county, or the citizens thereof, such property shall be transferred to, and vest in the county treasurer, to be administered and applied by him under the direction of the board of commissioners, upon the same uses, purposes and trusts as declared by the gi-antor, testator, or other person in the original deed, devise or other instrument of donation. Code, s. 778; 1869-70, c. 85. 403 1401 COrXTY TREASUEER. Cb. 20 1401. To take charge of county trust funds; additional bond required. It shall be tbe duty of tbe county treasurer to take cbarge of all such trust funds and property ; but he shall not do so, without giving a bond payable to the state, in a penalty double the estimated value of said property or funds, with three or more sureties, each of whom shall be worth at least the amount of the penalty of tlie bond, over and above all his liabilities and property exempt from execu- tion, which lx>nd shall be taken by the board of commissioners, and shall be recorded and otherwise treated and dealt with as the official bond of the treasurer. Code, s. 779; 1869-70, c. 85, s. 2. 1402. Commissioners to keep a record of trust funds. The board tif commissioners shall keep a jiroper record of all such trust property or charitable funds, and when necessary shall institute pro- ceedings to recover for the treasurer all such as may lie unjustly withheld. Code. s. 780; 1809-70, e. 85, s. 3. 1403. Exhibits amounts and condition of trust funds. The coimty treasurer, whenever he is required to exhibit to the board of commissioners the financial condition of the county, shall exhibit also distinctly and separately the amount and condition of all such trust funds and property, how invested, secured, used, and other particulars concerning the same. Code, s. 781; 1869-70, c. 85, s. 4. 1404. Pays no claim unless audited. It shall not be lawful for the county treasurer to pay a claim against the county, imless the same shall have been audited and allowed by the board of commis- sioners. Code, s. 777; 1868, c. 19. 1405. Books, papers and money delivered to successor. When- ever the right of any county treasurer tti his office expires, the books and ])apers belonging to his office, and all moneys in his hands by virtue of his office shall, upon his oath, or in case of his death upon the oath of his personal representative, be delivered to his successor. Code, s. 707; 1868-9, c. 157. 1406. Action on bond, brought by commissioners. The board of commissioners shall bring an action on the treasurer's bond, when- ever they liax'o knowledge or a reasonable liclicf of any Itreadi of the bond. Code, a. 771; 18G8-9, c. 157. 1407 COUIvTTY TREASURER. Ch. 26 1407. Officers failing to account to treasurer sued by county commissioners, in case of the failure >>y refusal of a slieriif, clerk, cir other ofHccr to account and pay over, when called on as directed in this chapter, the treasurer shall report the facts to the board of coniinissioners, who may forthwith bring suit on the ofhcial bond of such delinquent officer, and the said board is also allowed to bring suit on the official bond of the clerk of the superior court of any adjoining county. Code, s. 775; 1868-9, c. 157, s. 10. XoTE. For bond of treasurer, see s. 297. For compensation, see s. 2778. For compensation of examining committee, see s. 2779. I. General provisions. II. Dockets, III. Civil jurisdiction. IV. Criminal jurisdiction. V. Jurors, VI. Procedure before trial. VII. Rules of procedure. VIII. .Judgment and execution IX. Appeal, X. Forms, CHAPTER 27. COURTS— JUSTICES'. Sections. 1408—141.5 1416—1418 1419—1426 1427 1428—1443 1444—14.56 1457—1478 1479—1488 1489—1495 1496 I. General Pkovisions. 1408. Constitution, article seven abrogated; exceptions. All the provisions of article seven of the constitution inconsistent with this chapter, except those contained in sections seven, nine and thir- teen, are hereby abrogated, and the provisions of this chapter sub- stituted in their place ; subject, however, to the power of the general assembly to alter, amend or abrogate the provisions of this chapter, and to substitute others in their stead, as provided in section fourteen of article seven of the constitution. Code, s. 818; 1876-7, c. 141, s. 7. 1409. When and how justices elected. At every general election held for members of the general assembly, there shall be elected in 1409 COURTS— JUSTICES'— 7. General Provisions. Ch. 27 each township (except those in the counties of Bertie, Caswell, Chowan, I'orsyth, Granville. Harnett, ilontgonierv and Vance, in which counties justices of the peace shall be elected by the gen- eral assembly), three justices of the peace, and for each township in which any city or incorporated town is situated, one justice of the peace for every one thousand inhabitants in such town or city (except in the city of Wilmington, where the number shall be twenty-five ) , who shall hold their otWces for two years, except that in the county of Edgecombe there shall be elected one justice of the peace for each and every one hundred duly qualified electors in each town- ship, and for every fraction of one hundred over fifty. 1895, c. 157, s. 4; 1899, c. 392; 1903, ce. 191, 207, 790; 1876-7, c. 141; Code, s. 819; 1905. cc. 37, 44, 73. s. 2; 1905, e. 148, s. 2; 1905. c. 447. Xote. For special provision as to time of election in Washington county, see 1905, c. 148, s. 2. 1410. How justices elected in Warren county. Upon a petition of two-thirds of the qualified electors in any township in Warren county, the board of commissioners of said county shall call an election at the time and in the manner appointed for the election of members of the general assembly in the year one thousand nine hun- dred and six, and every two years thereafter, for the election of not more than five nor less than three jxistices of the peace, as the petition shall designate, to be voted for and elected by the voters of the said township in which they reside, and who shall hold their office for two years, and until their successors are elected and qualified. The said justices of the peace shall be qualified by taking the oath of office before the clerk of the superior court of said Warren cinnity. 1905. c. 73, s. 2. 1411. When justices shall qualify; vacancies. Every person elected or appointed a justice of the ])eace, before his term of office begins or within thirty days thereafter, shall take and sub- scribe the prescribed oath of office before the clerk of the superior court, who shall file the same. All elections of justices of the peac^ by the general assembly or by the people, shall he void unless the persons so elected shall qualify as hei'cin directed. All original vacancies in the office of justice of the peace occurring before quali- fication as provided in this section, shall be filled for the term by the governor. All other vacancies shall be filled by the clerk of the supe- rior court. Code, s. 821 ; 1901, c. 37. 1412. Office forfeited by removal from township. When any justice of the jieacc removi's oul of bis township and does not retuni therein for the space of six months, he tbcroby forfeits and loses his office. Code, s. 822. 4(Hi -vM^' 14:13 COURTS— JUSTICES'— /. Gerieral Provisions. Cli. 27 1413. Resignation. Justices of the peace wishing to resign must deliver their letters of resignation to the clerk of the sujjerior court, who shall file the same. Code, s. 823. 1414. Punishment on conviction of infamous crimes. Upon the conviction of any justice of the peace uf an infamous crime, or of corruption and malpractice in office, he shall be removed from office, and he shall be disqualified from holding or enjoying any ofiice of honor, trust or profit under this state. Code, s. 826. 1415. Office under the United States. Any justice of the peace may accept a civil office or appointment of trust or profit, uuder the authority of the United States, the duties of which confine him to the county where he is resident. Code, s. 825 ; Const., Art. XIV, s. 7. II. Dockets. 1416. Furnished by county commissioners. A civil and a crimi- nal docket shall be furnished each justice, at the expense of the county, by the board of county commissioners, in which shall be entered a minute of every proceeding had in any action before such justice. Code, s. 831. 1417. Filed with clerks. Each justice of the peace, as often as he has filled his docket, shall file the same with the clerk of the suij)erior court for his county. Code. s. 827. 1418. Dockets, papers and books delivered to clerk for suc- cessor. When a vacancy exists, from any cause, in the office of a justice of the peace, whose docket is not filled, or when such justice goes out of office by expiration of his term, such former justice, if living, and his personal representative, if dead, shall deliver such docket, all law and other books fiirnished him as a justice of the peace, and all official papers to the clerk of the superior court for his successor, who is authorized to hear and determine any unfinished action on said docket, in the same manner as if such action had been originally brought before such successor. Code, s. 828; 1885, c. 372. 1419 COURTS— JUSTICES'— ///. Ciril Jurisdiction. Cli. 27 III. Civil Jurisdiction. 1419. Actions on contract. Justifcs of the pcaco .•^hall have exclusive original jurisdiction of all civil actions funnilcd on con- tract, except — 1. Wherein the sum demanded, exclusive of interest, exceeds two hundred dollars. 2. Wherein the title to real estate is in controversy. Const., Art. IV, s. 27; Code, s. 834. 1420. Actions not on contract. Justices of the iieace .shall have concurrent jurisdiction of civil actions not founded on contract, wherein the value of the property in controvcr.sy does not exceed fifty dollars. Const., Art. IV, s. 27; Code, s. 887. 1421. Action dismissed, when; remitter for jurisdiction. Where it appears, in any action l>rought iK'lore a justice, that the principal sum demanded exceeds two lumdred dollars, the justice shall dismiss the action and render a judgment against the plaintiff for the costs, unless the plaintiff shall remit the excess of principal, above two hundred dollars, with the interest on said excess, and .shall, at the time of filing his complaint, direct the justice to make this entry: ''The plaintiif, in this action, forgives and remits to the defendant so much of the principal of this claim as is in excess of two hundred dol- lars, together with the interest on said excess." Code, s. 8.35; 18G8-9. c. 159. s. 3; 1876-7, c. 63. 1422. Where title to real estate is in controversy. In every action brought in a court of a justice of the peace, where tlie title to real estate comes in controversy, the defendant may, either with or without other matter of defense, set forth, in his answer, any matter showing that such title will come in question. Such answer shall be in writing, signed by the defendant or his attorney, and delivered to the justice. Cede, s. 836. 1423. Title to real estate in controversy, action dismissed, if it ajijiears on the trial that the title to real estate is in controversy, the justice shall dismiss the action and render judgment against the plaintiif for costs. Code, s. s:i7. 1424. Another action may be brought; estoppel by former plea. When an aclin-ors so drawn shall be immediately delivered by the justice to any constable, or other lawful officer, with an order indorsed thereon, directing him to sum- mon tlie per.sons named in the list to appear as jurors at the time and place fixed for the trial ; and it is the duty of the officer to pro- ceed forthwitli to summon such jurors, or so many of them as can be found, according to the order ; and he shall make return thereof 1434 COURTS— JUSTICES'— T. Jurors. Cli. 27 at the time and place appointed, stating in his return the names of the jurors siumnoned by him. Code, s. 8.50. 1435. Jury for trial, how selected. At the time and place ap- pointed, and on return of the order, if the trial be not further adjourned, and if adjourned, then at the time and place to which the trial shall be adjoiirned, the justice shall proceed, in the pres- ence of the parties, to draw from the jurors summoned the names of six persons to constitute the jury for the trial of the issue. Code, s. 860. 1 436. Challenges. Each party shall be entitled to challenge, per- emptorily, two of the persons dra'wn as jurors. Code, s. 861. 1437. What names returned to the jury box. The scrolls con- taining the names of jurors not summoned, if any, and of those summoned, but not drawn, and of those drawn, but challenged and set aside, must be returned by the justice to his jury box, in division marked number one : Provided, that the scrolls containing the names of such as are not legally liable, or legally qualified to serve as jurors, shall be destroyed. Code, s. 862. 1438. Tales jurors may be summoned. If a competent and indif- ferent jury is not obtained from the twelve jurors dra\\Ti, as before specified, the justice may direct others to be STimmoned from the bystanders, sufficient to complete the jury. Code, s. 86.3. 1439. Not compelled to serve out of township. Xo person is compelled to serve as a juror in a justice's court out of his own town- ship, except as a talesman. Code, s. 867. 1440. Less than six a jury by consent. Six jurors shall consti- tute a jury in a justice's court, but, by consent of both parties, a less number may constitute it. Code, s. 866. 1441. Jurors serving on trial. The scrolls containing the names of the jurors who serve on the trial of an issue must be placed in the jury box in division marked number two, until all the scrolls in division marked number one have been drawn out. As often as that may happen, the whole niuuber of scrolls shall be returned to divis- ion marked number one, to be drawn oiit as in the first instance. Code, s. 868. 411 1442 COURTS— JUSTICES'— r. Jurors. Ch. 27 1442. Additional deposit for jury fees for adjournment. Xo adjournment shall be granted after the return of the jury, unless the party asking the same shall, in addition to the other conditions imposed on him by law or by the justice, deposit with the justice, to be immediately paid to the jurors attending, the sum of tweuty-tive cents each, such amount to be in no case included in the judgment as part of the costs. On such adjoiirnment, the jurors shall attend at the time and place appointed, without further summons or notice ; and the fees for the jury, deposited with the justice according to section one thousand four hundred and thirty-two, shall remain in his hands until the jury are impaneled on the trial, and shall be then immediately paid to the jurors or to the party entitled thereto. Code, s. 870. 1443. Jury sworn; impaneled; verdict; judgment. The jury shall be sworn and impaneled by the justice, who shall record their verdict in his docket and enter a judgment in the case according to such verdict. Code, s. 864. VI. Peocedure Befoke Trial. 1444. Summons, civil action begun by. Civil actions in these courts shall be commenced by the issuing of a summons. Code, s. 830; 1868-9, e. 159, s. 9. 1445. Summons, by whom issued and what to contain. The summons shall be issuccl by the justice and sigiiecl by- liiui. It shall run in the name of the state, and be directed to any constable or otlier lawful officer, commanding him to smnmon the defendant to appear and answer the complaint of the plaintiff at a place, within the comity, to be therein specified, and at a time to be therein named, not exceeding thirty days from the date of the summons. It shall also state the sum demanded by the plaintiff or the value of the prop- erty sued for, where specific ]n'o]ierty is claimed. Code, s. 832; 1874-5, c. 234. 1446. Service and return of summons; fees in advance. The officer to whom the suuuiions is delivered shall execute tlie same within five days after its receipt by him, or immediately, if required to do so by the plaintiff. Before proceeding to execute it, he is enti- tled to require of the plaintiff his fees for the service. When exe- cuted he shall immediately return the summons, with the date and manner of the service, to the jiistice who issued the same. Code, s. s:!:i. 1447. When process issues to another county. .Xd i)r(Hvss shall be issued by any justice of the peace to any county other than his 412 1447 COUETS— JUSTICES'— T7. Pro. Before Trial Ch. 27 own, unless one or more bona fide defendants shall reside in, and also one or more bona fide defendants shall reside outside of, his county ; in which case, only, he may issue process to any county in which any such nonresident defendant resides. Coilc, s. 871; 1876-7, c. 287. 1448. Process served on foreign corporation. Whenever any action of which a justice of the peace has jurisdiction shall be brought against a foreign corporation, which coi-^joration is required to main- tain a process agent in the state, the summons may be issued to the sheriif of the county in which such process agent resides, and when certified under the seal of his oifice by the clerk of the superior court of the county in which the justice issuing such sununons resides to be under the hand of such justice, the sheriff of the coimty to which such summons shall be issued shall serve the same as in other cases and make due return thereof. ?fo justice of the peace shall enter a judg- ment in such eases against any such foreign corporation unless it shall appear that the process was duly served upon such process agent at least twenty days before the return day of the same. The summons may be made returnable at a time to be therein named, not exceeding forty days from the date of such siunmons. 1449. How process issues to another county. In all civil actions in courts of justices of the peace where one or more of the defendants may reside in a county other than that of the plaintiff, it shall be lawful for any justice of the i^eace within the county where such defendant or defendants may reside, upon proof of the handwriting of the justice of the peace who issued the process, to indorse his name on the same, or a duplicate thereof, and such process so indorsed shall be executed in like manner as if it had been origin- ally issued by the justice indorsing it. Code, s. 872. 1450. Certificate of clerk on process for another county, in all cases referred to in the preceding section, it sliall Itc lawful for the clerk of the superior court of the county in which the action is bro^ight, to certify, under the seal of his court, on the process or a duplicate thereof, that the justice of the peace who issued the same is an acting justice of the peace in his county. And in all such cases it shall be the duty of any sheriff or constable to whom it may be directed, to make an entry of the date of its reception, and to exe- c\ite the same as provided for the service of civil process in courts of justices of the peace, and return it by mail to the justice of tlie peace from whose court it issued. Code, s. 873; 1870-1, e. 60, s. 2. 1451 COUETS— JUSTICES'— T/. Pro. Before Trial Ch. 27 1451. When judgment entered against defendants in another county. Xo justice iif the jieace .shall enter a juili;iiieiit tinder the two prceeding sections against any defendant who may he a nonresident of his county, unless it shall appear that the ]irocess was duly served upon him at least ten days before the return day of the same. Code, s. 874; 1876-7, c. 57. 1452. Attendance of witnesses procured. The justice, on appli- cation of either party, shall, by a sub])ix'na or by an order in writing on the process, direct the constable or other otticer to summon wit- nesses to appear and give testimony at the time and ])lace appointed for the trial. Each witness, failing to ap]iear, shall forfeit and pay eight dollars to the party at whose instance he was summoned, and shall be further liable to such party for all damage sustained by nonattendance. The fine herein imposed may be recovered, on mo- tion, before the justice who tried the action, unless the witness on a notice of five days, by affidavit or other jiroof, show sufficient excuse for his failure to attend. Code, s. 847. 1453. When subpoenas issue to other counties; costs in advance. Justices of the jieace, in all civil cases, may issue sub]iieuas to cotmties other than their own ; such sub]5a3nas shall be authenti- cated in the same manner as provided by law for the atithentica- tion of process. When so aitthenticated the .sherilf, constable or other officer to whom the same is directed shall execute and return the same as provided for the' return of process: Provided, that where witnesses attend in counties other than their ovra under such subpcena they shall receive the same per diem and mileage as wit- nesses who attend the superior courts : Provided further, that before issuing such subpcenas the party wanting such witness shall dcjwsit with the justice before whom the cause is pending one day's per diem and the mileage of said witness to and returning from ]ilace of trial, which aniotmt shall be paid to said witness on his attendance and taxed against the party cast in the trial. 1893, c. 436. 1454. Subpcena duces tecum in case against railroad. When any action is brought against a railroad company before a justice of the peace, the justice before whom such action is made returnable shall have power to issue a sub]inena t7 1458. Rule II. Pleadings, oral or written. The pleadings may lie either ural m- written ; if oral, the snlistaiiee imist be entered hv the justice on his doclcet; if written, they must be filed by the justice, and a reference to them be made on his docket. Code, s. 840. Rule 2. 1459. Rule III. Complaint. The comphiint nmst state, in a jilain and direct manner, the facts constitutino' the cause of action. Code, s. 840, Rule 3. 1460. Rule IV. Answer. The answer may contain a denial of the complaint, ov of any part thereof, and also a statement, in a ])lain and direct manner, of any facts constituting a defense or counter- claim. Code, s. 840, Rule 4. 1461. Rule V. Demurrer. Either party may demur to a plead- ing of his adversary, or to any part thereof, when it is not suffi- ciently explicit to enable him to understand it, or contains no cause of action or defense, although it be taken as true. Code, s. 840. Rule 11. 1462. Rule VI. When demurrer is sustained. If the justice deem the objection ■well founded, he shall order the pleading to be amended on such terms as he may think just : and if the party refuse to amend, the defective pleading shall be disregarded. Code, c. 840, Rule 12. 1463. Rule VII. No particular form for pleadings. Pleadings are not required to be in any particular form, but nnist be such as to enable a person of common understanding to know what is meant. Code, s. 840, Rule 5. 1464. Rule VIII. No judgment by default. Where a defendant does not appear and answer, the plaintiff- must still prove his case before he can recover. Code, s. 840. Rule G. 1465. Rule IX. Action on account or note. In an action or defense, founded on an account or an instrument for the payment of money only, it is sufHcient for a party to deliver the account or instru- ment to the justice and state that there is due him thereon from the adverse party a specified sum, which he claims to recover or set off. Code, s. 840, Rule 7. 1466. Rule X. Variance between pleading and proof. A vari- ance between the evidence on the trial and the allegations in a 1460 COURTS— JUSTICES'— 17/. Rules of Procedure. Cli. il pleading shall be disi-egarded as immaterial, tmlcss tlie court 'n satisfied that the adverse party has been misled to his prejudice thereby. Code, s. 840, Rule 8. 1467. Rule XI. Process not quashed for form. No process or other proceeding begun before a justice of the peace, whether in a civil or a criminal action, shall be quashed or set aside, for the want of form, if the essential matters are set forth therein; and the court in which any such action shall be pending, shall have power to amend any warrant, process, pleading or proceeding in such action, either in form or substance, for the furtherance of justice, on such terms as shall be deemed just, at any time either before or after judgment. Code, s. 908; R. C, c. 3, c. 62, s. 22; 1794, c. 414. 1468. Rule XII. Pleadings amended. The pleadings may be amended at any time before tlie trial, or during the trial, or upon appeal, when by such amendment substantial justice will be pro- moted. If the amendment be made after the joining of the issue, and it appears to the satisfaction of the court, by oath, that an adjournment is necessary to the adverse party, in consequence of such amendment, an adjournment shall be granted. The court may also, in its discretion, require as a condition of an amendment the payment of costs to the adverse party. Code, s. 840, Rule 9. 1469. Rule XIII. Account or demand exhibited. The justice may at the joining of issue, require either party, at the request of the other, at that or some other specified time to exhibit his account or demand, or state the nature thereof as far as may be in his power; and in case of his default, the justice shall preclude him from giving evidence of such parts thereof as have not been so exhibited or stated. Code, s. 840, Rule 10. 1470. Rule XIV. Proceedings recorded. The justice shall enter all his proceedings in a cause tried before him in his docket. No part of such proceedings must be entered on the siimmons, on the pleadings or on any other paper in the cause. Cndo. s. 840, Rule l.",. 1471. Rule XV. Tender of judgment. The defendant may, on the return of process and before answering, make an offer in writing to allow judgment to be taken against him for an amount, to be stated in such offer, with costs. The plaintiff shall thereupon, and before any other pi-oceeding be had in the action, determine whether he will accept or reject such offer. If he accept the offer, and give Rev. Vol. I — 23 417 1471 COURTS— JUSTICES'— T//. Bulrs of Procedure. Ch. 27 notice thereof in writing, the justice shall file the otfer and the acceptance thereof, and render judgment accordingly. If notice of acceptance be not given, and if the plaintiff fail to obtain judgment for a gi'eater amount, exclusive of costs, than has been specified in the offer, he shall not recover costs, but shall pay to the defendant his costs accruing subsequent to the offer. Cmlc. s. 840, Rule l(i. 1472. Rule XVI. Continuance. Any justice before whom an action is brought, may, on sufficient excuse therefor shown on the affidavit of either party or any person for him, continue such action from time to time for trial ; but such continuance shall not exceed thirty days. Code, s. 840, Rule 17. 1473. Rule XVII. Chapter on civil procedure applicable to forms, limitations and parties. The chapter on civil procedure, resisecting forms of actions, parties to actions, the times of commenc- ing actions, and the service of process, shall apply to justice's courts. Code, s. 840, Rule 15. 1474. Rule XVIII. Chapter on civil procedure applicable in attachment. The chapter on civil procedure is applicable to pi'o- ceedings by attachment before jiistices of the peace, in all cases foimded on contract wherein the sum demanded does not exceed two hundred dollars, and where the title to real estate is not in contro- versy. Code, s. 853. 1475. Rule XIX. Chapter on civil procedure applicable to claim and delivery and in arrest and bail. The cliaptcr .>n civil jirocedure is applicable, except as herein otherwise provided, to proceedings in justices' courts concerning claim and delivery of ]iersonal property and arrest and bail, substituting the words "justice of the peace" for "judge," "clerk" or "clerks of the court," and inserting the words "or constable" after "sheriff," whenever they occur. Code, .ss. 849, 889; 1876-7, c. 251. Note. See ss. 726, 790. 1476. Rule XX. Damages to real estate and conversion of personalty, same rules. All actions in a court bf a jiisticc of the peace fur tlic r(>coverv of damages to real estate, or for the convci*sion of personal property, or any injury thereto, shall be commenced and prf)secuted to judgment under the same rules of i)roccdur(' as pro- vided in civil actions in a jn.stice's court. Code, s. 888; 1870-7, c. 251. 1477 COURTS— JUSTICES'— T7Z. Euhs of Procedure. Ch. 27 1477. Rule XXI. Suit on judgment, evidence in. On tlie trial of an action founded on a former judgment, the judgment itself shall be evidence of the debt, subject to such payments as have been made. Code, s. 844. 1478. Rule XXII. When rehearing granted. When a judgment has been rendered by a justice, in the absence of either party, and when siuch absence was caused by the sickness, excusable mistake or neglect of the party, such absent party, his agent or attorney, may, within ten days after the date of such judgment, apply for relief to the justice who awarded the same, by affidavit, setting forth the facts, which affidavit must be filed by the justice; whereupon the justice, if he deem the affidavit sufficient, shall open the case for reconsideration; and to this end, he shall issue a siumnons, directed to a constable, or other lawful officer, to cause the adverse party, together with the witnesses on both sides, to appear before him at a place and at a time, not exceeding twenty days, to be specified in the summons, when the complaint shall be reheard, and the same proceedings had as if the case had never been acted on. If execution has been issued on the judgment, the justice shall direct an order to the officer having such execiTtion in his hands, commanding him to forbear all further proceedings thereon, and to return the same to the justice forthwith. Code, s. 845. Note. See s. 1489. VIII. Judgment and Execution. 1479. Docketing justice's judgment; lien; stay of execution; clerk's duty; costs; docketed in other counties. A justice of the peace, on the demand of a party in wliose favor he has i-endered a judgment, shall give a transcri])t thereof which may be filed and docketed in the office of the superior court clerk of the county where the judgment was rendered. And in such cage he shall also deliver to the defendant, or his attorney, a transcript of any stay of execu- tion issued, or which may thereafter be issued, by him on such judg- ment, which may be in like manner filed and docketed in the office of the clerk of said court. The time of the receipt of the transcript by the clerk shall be noted thereon and entered on the docket ; and from that time the judgment shall be a judgment of the superior court in all respects. The execiTtion thereon shall be issued by the clerk of the superior court to the sheriff of the county, and shall have the same effect, and be executed in the same manner, as other execu- tions of the superior court: Provided, however, that in cases of 14T'J COUETS— JUSTICES'— T'//7. Judg., Execution. Ch. 27 appeal to the superior court from a judgment so doeketetl, wlu'ii judgment is reudered in the superior court on such appeal, the lien acquired by the docketing of such justice's judgment shall merge into the judgment of the superior coui-t, and continue as a lien from the date of the docketing of said justice's judgment, and be superior to any other judgment docketed subsequent to the date of the jus- tice's judgment (prior attachment liens and judgment on same excepted), and the clerk of the superior court shall carry forward and tax into the jiidgmeut of the superior court all costs incurred in the justice's court, including transcript and docketing, as well as all costs incurred in the superior court, and shall issue execution only on the judgment rendered in the superior court, and not upon the justice's judgment. And when judgment is rendered in the su])erior court, it shall be the duty of the clerk to enter upon the page of the judgment docket where the justice's judgment is docketed, as fol- lows: "Judgment in superior court. . . .day of , sec Judgment Docket. . . ., page. ..." He shall date same and sign it as clerk: Provided further, that when the judgment of the superior court is satisfied, it shall be a satisfaction of the justice's judgment, and the clerk shall so note such satisfaction on the record of the justice's judg- ment: Provided, that in case a stay of execution upon such judgment shall be granted, as provided herein, execution upon such judgment shall not be issued by the clerk of the superior court luitil the expira- tion of such stay. A certified transcript of such judgment may be filed and docketed in the superior court clerk's ofiice of any other county, and with the like effect, in every respect, as in the county where the judgment was rendered, except that it shall be a Hen only from the time of filing and docketing such transcript. Code, s. 839; 1903, c. 179. 1480. Justice's judgment removed to another county. Any per- son who may desire to have a justice's judgment in his favor removed to another county to be enforced against the goods and chattels of the defendant, miist obtain from the justice who rendered the judg- ment a transcript thereof, under his hand ; and must further procure a certificate from the clerk of the superior court of the county where the judgment was rendered, under the seal of his court, that the jus- tice who gave the judgment was, at the rendition thereof, a justice of said county. On such transcript of tlie judgment, thus certified, any justice in any otlicr county may award execution fen* the sum therein expi'essed. Code, s. S-Ki. 1481. Execution, when issued and returnable. Exccuiion may be issued on a jiKlgment, rendered in a justice's cnvirt. at any lime 1481 COUKTS— JUSTICES'— TV//. Judci., Execution. Ch. 27 within one year after the rendition thereof, and shall be returnable sixty days from the date of the same. Code, s. 840, Rule 14. 1482. Execution on, when a lien, and on what. Executions issued by a justice, which maiist be directed to any constable or other lawful officer of the county, shall be a lieu on the goods and chattels of the defendant named tlierein, from the levy thereof only, but shall not be levied on or enforced in any manner against real estate; but when a justice's judgment shall be made a judgment of the superior court, as is elsewhere provided, the execution shall be capable of being levied and collected oiit of any propert_y of the defendant in execution, and it shall be a lien on the real estate of said defendant from the time when it becomes a judgment of the superior court. Code, s. 841; 1868-9, c. 159, s. 5. 1483. Stay of execution granted by justice. In all actions founded on contract, whereon judgments are rendered in justices' courts, stay of execution, if prayed for at the trial by the defendant or his attorney, shall be granted by the justices in the following man- ner : For any sum not exceeding twenty-five dollars, one month ; for any siuu above twenty-five dollars and not exceeding fifty dollars, three months ; for any sum above fifty dollars and not exceeding one hundred dollars, four months ; for any sum above one hundred dol- lars, six months. But no stay of execution shall be allowed in any action wherein judgment is rendered on a former judgment taken before a justice of the peace. Code, s. 842; 1868-9, c. 272. 1484. Security on stay of execution. The party praying for a stay of execution shall, within ten (hiys after the trial, give sufficient security, aj^proved by the justice, for pa^^nent of the judginent, with interest thereon till paid, and cost; and the acknowledgment of the surety, entered by the justice in his docket and signed by the surety, shall be sufficient to bind such surety. If the judgment be not discharged at the time to which execution has been stayed, the justice who awarded the judgment shall is.sue execution against the principal, or surety, or both. Code, s, 843. 1485. Execution stayed; undertaking on appeal before clerk. If an appellant desire a stay of execution of the judgment, he may .apply, at any time, to the clei'k of the appellate court for lea\'e to give the undertaking, as jn-ovided in a subsequent section; who shall, ujion the imdertaking being given, make an order that all proceedings on the judgment be stayed. Code, s. 882. 421 1486 COURTS— JUSTICES'— T7/7. Jmhj., Execution. Ch. 27 1486. Undertaking on appeal before justice. In all cases of apjx'al from justices" cnurts the aiipellant inav <:ivc an luulertaking for the appeal before the justice who tried the cause, and who shall indorse his approval thereon, instead of before the clerk of the appel- late court. Code, s. 883; KSliO-TO, c. 187. 1487. Undertaking on appeal; what to contain. The undertak- ing shall be in writing, executed bv one nr more sufficient sureties, to be approved by the justice or clerk making the order, to the effect that if judgment be rendered against the appellant, the sure- ties will pay the amount together with all costs awarded against the appellant, and when judgment shall be rendered against the appel- lant, the appellate court shall give judgment against the said sureties. Code, s. 884; 1879, c. 68. 1488. Delivery of undertaking, execution stayed; copy served on appellee. A delivery of a ccrtitied copy of the order, hereinbefore mentioned, to the justice of the jieace, shall stay the issuing of an execution on the judgment; if it has been issued, the service of a certified copy of such order on the officer holding the execution shall stay further proceedings thereon. A certified copy of such order shall also be served on the resiiondent, or on his agent or attorney, within ten days after the making thereof. Code, s. 885. IX. Api'kal. 1489. New trial not allowed; either party may appeal. A new trial is not allowed in a justice's court in any case whatever; but either party dissatisfied with the judgment in such court may appeal therefrom to the superior court, as hereinafter prescribed. Code, s. 865. Note. See s. 1478. 1490. Does not stay execution. Xo apiieal shall ]n-event the issuing of an execution on a jtidgment, or work a stay thereof, except as hereinafter provided. Code, s. 87.''): 1876-7, c. 251, s. 6. 1491. Appeal, when and how taken. The ajipellant siiall, within ten days after judgment, serve a notice of appeal, stating the grounds upon which the appeal is founded. If the judgment is ren COUETS— JUSTICES'— A'. Forms. Ch. 27 defendant, as deponent is informed and believes, did not have, nor expect to have, any funds on deposit at said bank at the making of the representations above mentioned, but said defendant was then and is now wholly insolvent. A. B Sworn to and subscribed before me, this day of 19 ... . G. W. H Justice of the Peace. [No. 18.] UNDERTAKING ON ARREST. (Title as in No. 1.) Whereas, the plaintiff above named is about to appl}' (or, has applied) for an order to arrest the defendant, C. D, ; Now, therefore, we, J. J., of county, and P. P., of county, undertake in the sum of dollars (the sum must be at Iea.st one hundred dollars), that if the said defendant recover judgment in this action the plaintiff will pay all costs that may be awarded to the said defendant and all damages which he may sustain by reason of his arrest in this action. J. J P. P Signed in mj' presence, this day of 19. . . . G. W. H Justice of the Peace. [No. 19.] ORDER OF ARREST. (Title as in No. 1.) North Carolina, County, Township. To any constable or other lawful officer of said county: For the causes stated in the annexed affidavit, you are required forthwith to arrest C. D.. the defendant named above, and hold him to bail in the sum of dollars (the sum should be the amount of the plaintiflT's claim), and to return this order before the undersigned at his office in said county, on the day of , 19 . . . . ; of which return you will give notice to plaintiff or his attorney. Dated this day of 19 G. W. H Justice of the Peace. [No. 20.] UNDERTAKING OF BAIL ON ARREST. (Title as in No. 1.) Whereas, the above named defendant, C. D., has been arrested in this action; Now, therefore, we. B. B., of county, and D. D., of county, undertake in the sum of dollars (the sum should be the same as men- tioned in the order of arre.st), that if the defendant is discharged from arrest he shall at all times render him.self anienable to the process of the court during the pendencv of this action, and to such as niav he issued to enforce judgment therein. B. B D. D Signed in my presence, this day of 19 ... . G. W. H Justice of the Peace. (Signed.) 430 1496 COUETS— JUSTICES'— X. Forms. Ch. 27 [No. 21.] NOTICE OF EXCEPTION TO BAIL. (Title as in No. 1.) To 0. P. M., constable (or sheriff) of the county of : Take notice, that the plaintiff does not accept the bail offered by the defendant in this action (and if the undertaking is defective in foi'm or otherwise, add also), and further he excepts to the form and sufficiency of the undertaking. Yours, etc., A. B Plaintiff. ( or, M. W. N Attorney for Plaintiff. ) Dated this day of 19 [No. 22.] NOTICE OF JUSTIFICATION OF BAIL. (Title as in No. 1.) To A. B., plaintiff (or, M. W. N., attorney for plaintiff) : Take notice, that the bail in this action will justify before G. W. H., Esq., a justice of the peace for said county, at the ofliee of said justice, in said county, on the day of 19.... CD (or, attorney for C. D.), Defendant. Dated this day of 19 [No. 23.] NOTICE OF OTHER BAIL. (Title, etc., as in No. 1.) Take notice that R. S., of count}' (physician) , and Y. Y., of county (farmer), are proposed as bail, in addition to (or in place of) B. B. and D. D., the bail already put in; and that they will justify (conclude as in last form ) . Dale, etc. [No. 24:.] JUSTIFICATION OF BAIL. (Title as in No. 1.) On this day of 19.... before G. ■ W. H., Esq., a justice of the peace for said county, personally appeared B. B. and D. D. (or R. S. and Y. Y., as the case may be), the bail given by the defendant C. D. in this action, for the purpose of justifying pursuant to notice; and the said B. B., being duly sworn, says: 1. That he is a resident and householder (or freeholder) in this state; 2. That he is worth the sum of dollars (the amount specified in the order of arrest), exclusive of property exempt from execution. And the said D. D., being duly sworn, says: (As with the other bail.) (And so on with each bail offered.) (Signatures of bail.) Examination taken and sworn to before me, this day of 19. . . . G. W. H Justice of the Peace. 431 14'JG COUKTS— JUiSTICES"— A'. Forms. Cli. 27 [Xo. 25.] ALLOWAN'CE OF BAIL. (Title as in No. 1.) The bail of the defendant, C. D., within mentioned, having appeared before me and justiiicd, I do find the said bail .sullieient and allow the same. Dated this dav of 10 ... . G. W. n Justice of the Peace. [jSTo. 26.] subpoena to testify. State of North Carolina, County. To S. T , greeting: (the justice may insert any number of necessary names ) . You (and each of you) are commanded to appear personally before G. W. H., Esq., a justice of the peace for said county, at his oHice in said county, on the day of 19. . . . to give evidence in a certain civil action now pending before said justice, and then and there to be tried, between A. B., plain- tiff, and C. D., defendant, on the part of the defendant (or plaintiff).* Herein fail not, under the penalty prescribed by law. Witness oiir said justice, this day of 19 G. W. H Justice of the Peace. [jSTo. 27.] iN". B. — The justice may, instead of a formal subpoena, indorse on the siunmons or other process an order for witnesses, substantially as follows: The officer to whom the within process is directed will summon the following persons as witnesses for the plaintiff: : and the following as witnesses for the defendant: : and will notify all such wit- nesses to appear and testify at the time and place within named for the return of this process. Dated this da v of 19 G. W. H Justice of the Peace. [No. 2S.] SUBPOENA DUCES TECUM. Tf any witness has a paper or document, which a party desires as evidence at the trial, the ju.stice will pursue the form Xo. 2fi as far down as the asterisk (*) and tlicn add tlie followiue: clause: And you, S. T., are also commanded to bring with you and there produce as evidence a certain bond (describe particularly) which is now in your possession or under your control, together with nil papers, documents, writings or instru- ments in your custody, or under your control. (Conclude as in form No. '20.) 432 1496 COURTS— JUSTICES'— A'. Forms. Ch. 27 [No. 29.] FORM OF OATH OF WITNESS. You swear that the evidence you will give as to the matters in ditference between A. B., plaintiff, and C. D., defendant, shall be the truth, the whole tiuth, and nothing but the truth. So help you, God. [iVo. 30.] PROCEEDINGS AGAINST DEFAULTING WITNESS. When a witness, under subpoena, fails to attend, the justice will note the fact in his docket by some such entry as the following : R. P., a witness summoned on behalf of the plaintiff, called and failed. If the party who suffers by default of the witness wishes to move for the penalty against himi, he will serve substantially the follow- ing notice on the witness : (Title as in No. 1.) To R. P.: Take notice, that on the day of 19. . . . the plaintiflf in the above action will move G. W. H., Esq., the justice before whom the trial of said action was had, on the day of 19.... for judgment against you for the sum of dollars, forfeited by reason of your failure to appear and give evidence on said trial as you were summoned to do. Dated this day of 19 A. B , Plaintiff. The justice will enter the proceedings on the foregoing notice on his docket as follows: A B 1 Motion for penalty against R. P., defaulting witness. against I Justice's Court. C D J day of 19 ... . A. B., above named, appears, and, according to a notice filed and duly served on R. P., moved for the penalty of dollars forfeited by the said R. P. by reason of his failure to attend and give evidence on the trial of a cause, wherein A. B. was plaintiff and C. D. was defendant, tried before me at my office on the day of 19. . . . as appears by entry duly made on my docket; when, and where the said R. P., a witness summoned on the part of the plaintiff in that action, was called and did fail. R. P. appears and assigns for excuse "high water," and offers his own affidavit, which is filed. He also offers as a witness in his behalf S. S., who. being duly sworn, testifies that (state what S. S. says about the condition of the water at the time). R. P., having no other evidence, closed the ease on his part. Where- upon A. B. offered M. Y. as a witness, who, being sworn, testifies (state what witness says. ) Neither party having any other evidence, and after hearing all the proofs and allegations submitted for and against the motion, it is adjudged, on motion of A. B., that A. B. do recover of R. P. the sum of dollars, penalty for- feited by reason of the premises, and the further sum of dollars, costs of this motion. Rev. Vol. 1—24 433 1496 COUETS— JUSTICES'— X. Forms. Ch. 27 [jSTq. 31.] form of a venire. The justice will make a list of the persons drawn by liim as jurors, and indorse thereon substantially as follows: To O. P. M., constable of county: You are hereby directed to summou tlie persons named within to appear as jurors before me at my office in your county, on the day of 19 ... . for trial of a civil action now pending between A. B.. plaintiff, and C. D., defendant, then and there to be tried. And luue you then and there the names of the jurors you shall summon, with this precept. Dated this day of 19 G. W. H Justice of the Peace. [No. 32.] FORM OF JUROR'S OATH. You swear well and truly to try the matter in difference between A. B., plaintiff', and C. D., defendant, and a verdict to give thereon according to the evidence in the cause. So help you, God. [No. 33.] FORM OF OATH TO CONSTABLE IN CHARGE OF THE JURY. You swear that you will, to the utmost of your ability, keep the persons sworn as jurors on this trial together in some private and convenient place, without any meat or drink, except such as maj' be ordered by the court ; that you will not suffer any communication, orally or otherwise, to be made to them, and that you will not communicate with them yourself, orally or otherwise, unless by order of the court. So help you, God. [No. 34.] SUMMONS AGAINST DEFAULTING JUROR TO SHOW CAUSE. State of North Carolina, to any constable or other lawful officer of county — Greeting : We command you to summon R. S. to appear before G. W. H., Esq., a justice of the peace for your county, at his office in said county, on the day of 19. . . . to show cause why he, the said R. S., should, not ho fined according to law for his nonattendance as a juror before our said justice at his office in said county on the day of 19. . . . in a certain cause then and there pending, in which A. B. was plaintiff and 0. D. was defendant: and have you then and there this precept, with the date and manner of your service thereof. Witness, our said justice, this dav of 19. . . . G. W. IT .Justice of the Peace. 1496 COUETS— JUSTICES'— X. Forms. Ch. 27 [No. 35.] DEMURRER TO COMPLAINT. (Title as in No. 1.) The defendant demurs to the complaint in this action, for that the said com- plaint does not state facts sutKcient to constitute a cause of action (or, for that the said complaint js not sufficiently explicit to enable this defendant to under- stand it ) . (Signature of defendant or defendant's attorney.) iEo. 36.] DEMURRER TO ANSWER. (Title as in No. 1 or No. 5.) The plaintiff demurs to the answer of the defendant, for that the facts stated in the answer are not legally sufficient to constitute a defense to this action (or for that the said answer is not sufficientlj' explicit to make this plaintiff under- stand it) . (Signature of plaintiff or plaintiff's attorney.) [No. 37.] JUDGMENT UPON DEMURRER. Note. — If the justice thinks the objection raised by the demurrer to the pleadings is well founded, he will make this entry on his docket : Demurrer to the complaint (or to the answer) filed, heard and sustained; and whereupon it is ordered that the said pleading be amended without cost (or upon paj'ment of costs, as the case may be). This order to amend the defective pleading is a matter of course, and is the only judgment which the justice can render upon demiur- rer. He can not give a final judgTaent in the cause at this stage, for the party may choose to amend his pleadings and try the case on the facts. If, however, the party refuse to amend the defective pleading, the justice will disregard the same, and proceed to render final judgment, as follows: Tlie plaintiff (or defendant) having refused to amend his complaint (or his answer) demurred to, it is adjudged that the defendant go without day and recover of the plaintiff the sum of dollars, costs of this action (or that the plaintiff recover of the defendant the sum of dollars, damages, and the further sum of dollars, costs of this action. ) If the justice deem the objection, raised by the demurrer, not well founded, he will enter in his docket as follows : Demurrer to the complaint (or to the answer) filed, heard and overruled, and he will then proceed to the evidence in the cause. Note. — The following is offered as a general j^recedent of the manner in which the justice will make the entries in his docket : 1496 COUETS— JUSTICES'— A'. Forms. Ch. 27 [Xo. 38.] (Title as in No. 1.) ...1"J.... Summous issued; letuiuable on the instant at my office. 19 ... . Summons returned, served on defendant by 0. P. M., con- stable, on the instant, both parties appear, the plaintiff in person, the defendant by K. H. K., Esq., attorney. The plaintiff complains on a promissory note executed by the defendant to him, dated 19 ... . payable one day after date, for $ , and also for goods sold and delivered to the defendant, and claims damages for $ The defendant answers and denies each and every allegation in the complaint, and claims a setoff of $ for wood sold and delivered to the plaintiff, and also of $ for work and labor performed for the plaintiff. On joining issue of fact as above, the action is, by consent of parties, adjourned to the instant, at my office. A venire is also issued at the plaintiff's (or defendant's) demand, returnable at the time and place last mentioned. 19. . . . The parties appear and proceed to the trial of the cause. Tlie following jurors are returned as summoned upon the venire by O. P. M.. constable. (Insert the names of all jurors summoned.) The following jurors, who are returned as summoned, do not appear. (Insert their names.) The following jurors appear according to the summons. (Insert their names.) The following jurors are sworn to try the action. (Insert their names.) H. P. and J. M., witnesses for the plaintiff', and W. F., a witness for the defend- ant, are sworn and testify; J. S., a witness on the part of the defendant, is offered, but objected to by the plaintiff on the ground (state the ground) and rejected. Having heard the evidence (and the arguments of counsel, if any), the cause is submitted to the jury, who retire, under charge of 0. P. M., a constable duly sworn for that purpose, and afterwards return in open court and publicly deliver their verdict, by which they find in favor of the plaintiff for .$ damages; whereupon, I adjudge that the plaintiff do recover of the defendant — Damages .$ Costs 19 ... . Execution issued for above judgment to 0. P. M., constable. 19 ... . Notice of appeal served on me by defendant ; my fee paid and return to the appeal made by me. ■ N". B. — If the action is tried by the justice without a jury, all that relates to the venire and the verdict in the above form must be left out, and the judgment will be entered as follows: After hearing the proofs and allegations of the respective parties, I do adjudge that the plaintiff recover, etc. (as above). [No. 39.] FORM OF NOTICE OF APPEAL TO THE SUPERIOR COURT. WHERE A NEW TRIAL OF THE WHOLE ISIATTER IS TO BE HAD. (Title as in No. 1.) To G. W. H., Esq., a justice of the peace for said county. Take notice, that the defendant in the above action appeals to the Superior Court from the judgment rendered therein hy you on the day of 19 ... . in favor of the plaintiff for the siim of sixty-five dollars damages and 43G 1496 COURTS— JUSTICES'— A'. Forms. Ch. 27 tlie further sum of three dollars and seventy-five cents costs, and that this appeal is founded upon the ground that the said judgment is contrary to law &nd evidence. Dated this day of 19 W. W Attorney for Appellant. [jSTq. 40.] RETURN TO NOTICE OF APPEAL. A n \ against I County of C D J To the Superior Court of County: An appeal having been taken in this action by the defendant, I, G. W. H., the justice before whom the same was tried, in pursuance of the notice of appeal hereto annexed, do hereby certify and return that the following proceedings were had by and before me in said action: On the first of February, one thousand eight hundred and sixty-nine, at the request of the plaintiff, I issued a summons in his favor and against the defend- ant, which is herewith sent. Said summons was, on the return day thereof, returned before me at my office; and at the same time and place the parties personally appeared. The plaintift' complained for goods sold and delivered to defendant to the amount of $75. The defendant denied the right of the plaintiff to recover that amount for the goods, on the ground that he had paid, at or shortly after the purchase of said goods dollars thereon; and he also claimed to have a setofl' against the plaintiff to the amount of $85 for board and lodging furnished to plaintiff, and work and labor done for him; and he claimed to be entitled to judgment against the plaintiff for $ Both parties introduced evidence upon the claims so made by them, and after hearing their proofs and allegations, 1 rendered judgment in favor of the plaintiff and against the defendant, on the tenth of February, eighteen hundred and sixty- nine, for $65 damages, and for the further sum of $3.75, costs of the action. I also certify that on the eleventh of February, eighteen hundred and sixty- nine, the defendant served the annexed notice of appeal on me, and at the same time paid me my fee of $1 for making my return. All of which I send, together with the process, pleadings, and other papers in the cause. Dated this 15th day of February, 1904. G. W. H Justice of the Peace. ]^. B. — If the cause was tried by a jitry, state the fact and set forth the verdict, with the judgment thereon. , It is not necessary to set out in the return a copy of any process, pleading, affidavit or other paper. It is sufficient to refer to such a paper as filed and as herewith sent. ['^0. 41.] WHERE THE SUM DEMANDED EXCEEDS TWO HUNDRED DOLLARS. It appearing that the sum demanded by the plaintiff in this action exceeds two hundred dollars, it is ordered that the action be dismissed, and judgment is rendered against A. B., plaintiff, for the sura of dollars, costs. (Date and sign.) 437 1496 COUETS— JUSTICES'— Z. Fonns. Ch. 27 [No. 42.] WHERE THE TITLE TO REAL ESTATE IS IN QUESTION. 'N. B. — The defendant, if he wishes to make answer to title, must file a written answer to the complaint, setting forth the facts. ANSWER OF TITLE. (Title as in No. 1.) The defendant answers to the complaint: 1. That no allegation thereof is true. 2. That the plaintiff ought not to have or maintain his action against the defendant, because the premises mentioned and described in the complaint, at the time when the rent and render, for which said action is brought, is alleged to be due, was and is now the land and freehold of one J. D., and not that of the plaintiff; nor was the plaintiff then, nor is he now, entitled to the possession thereof; and the defendant further answers that the title to said premises was, at the time aforesaid, and is now, in said J. D., and will come in question on the trial of this action. Dated this day of 19 ... . CD , Defendant. It appearing from the answer and proof of the defendant that the title to real estate is in controversy in this action, it is ordered that the action be dismissed, and judgment is rendered against the plaintiff for dollars, costs. [No. 43.] TENDER OF JUDCxMENT. (Title as in No. 1.) To C. D : Take notice, that the defendant hereby offers to allow judgment to be taken against him by the plaintiff in the above action for the sum of fifty dollars, with costs. Dated this day of 19 CD , Defendant. [No. 44.] ACCEPTANCE OF TENDER OF JUDGMENT. (Title as in No. 1.) To A. B : Take notice, that the plaintiff hereby accepts the offer to allow the plaintiff to take judgment in the above action for the sum of fifty dollars, with costs, and the justice will enter up judgment accordingly. Dated this day of 19 ... . A. B , Plaintiff. 1496 COUETS— JUSTICES'— Z. Forms. Ch. 27 [No. 45.] FORM OF JUDGMENT OR TENDER. {Title as in No. 1.) jS'. B. — The justice will state all the proceedings in the action from the issuing of the sununons down to the appearance of the par- ties and the complaint of the plaintiff, and then proceed as follows: Whereupon, the said defendant, before answering said complaint, made and served an ofler, in writing, to allow the plaintiff to take judgment against him for the sum of fifty dollars with costs;* and the said plaintiff thereupon accepted such offer, and gave notice thereof to the defendant in writing; said offer and acceptance thereof being filed; Now, therefore, judgment is accordingly rendered in favor of the plaintiff and against the defendant for the sum' of fifty dollars damages, and the further sum of one dollar, costs. If notice of acceptance is not given, the entry will be as follows : (Follow the foregoing form down to the asterisk {*) and then add) : And the said plaintiff having refused to accept such offer, the defendant answered the complaint by denying, etc. (state the defense of the defendant down to the judgment, which, in case the plaintiff fails to recover more than the sum mentioned in tlie offer, will be entered thus) : After hearing the proofs and allegations of the respective parties, I adjudge that the plaintiff do recover the sum of fifty dollars damages, and the further simi of one dollar, costs. I further adjudge that the defendant do recover of the plaintiff the sum of two dollars and seventy-five cents, costs accruing in the action subsequent to the offer of the defendant referred to. [No. 46.] GENERAL FORM— EXECUTION. (Title as in No. 1.) State of North Carolina, to any constable or other lawful officer of county — Greeting : Wihereas, judgment has been rendered by G. W. H., Esq., a justice of the peace for said county, against C. D., in favor of A. B., for the sum of dollars damages, and the further sum of dollars costs, on the day of 19....; You are therefore commanded forthwith to levy of the goods and chattels of the said C. D. (excepting such goods and chattels as are by law exempt from execution) the amount of such judgment, with interest from the date thereof until the money is recovered. And make due return, according to law, in sixty days from the date hereof. Dated this day of 19 G. W. H Justice of the Peace. 14:96 COURTS— JUSTICES'— A'. Forms. C!i. 27 [No. 47.] EXECUTION IN ATTACHJIENT. (Title as in No. 1.) State of North Carolina, to any constable or other lawful officer of county — Greeting: Whereas, in pursuance of a warrant of attachment, dated the day of 19. . . . issued by G. W. H., Esq., a justice of the peace of said county, in an action wherein A. B. was plaintiff and C. D. defendant, the folloxxinp; prop- erty of defendant was, on the day of , 19. . . ., duly levied on and attached. (Here insert a list of property.) And whereas, judgment was rendered in said action, on the. . . .day of in favor of said plaintiff, and against the said defendant, in the sum of dollars; Therefore we command you that you satisfy tlie said judgment out of the property so attached as aforesaid, by the sale of the same or so much thereof as shall be sufficient to satisfy the said judgment; and if a sufficient sum be not realized therefrom, then you satisfy the said judgment out of any other goods and chattels of the said judgment debtor within your county. And make due return thereof according to law within sixty days from the date hereof. Witness, our said justice, this dav of 19. . . . G. W. H Justice of the Peace. [No. 48.] RECORD OF CONVICTION OF A CONTEilPT. The justice will make an entry in h'n docket stating the particular circumstances of the contempt, of whicli the following is offered as an example : Whereas, on the . . . .day of 19. . . .while engaged in the trial of an action (or other judicial act, as the case may be) in which A. B. was plaintiff and C. D. was defendant, at my office in county, M. B. did wilfully and contemptuously interrupt me, and did then and there conduct himself so dis- orderly and insolently towards me, and by making a loud noise did disturb the proceedings on said trial (or other judicial act) and impair the respect due to the authority of the law ; and on being ordered by me to cease making such noise and disturbance, the said M. B. refused so to do, but on the contrary did publicly declare and with loud voice (.state whatever offensive words were used), and whereas, when immediately called upon by me to answer for (he said contempt said M. B. did not make any defense thereto, nor excuse himself therefrom; the .said JI. B. is therefore convicted of the conteni])t aforesjiid. and is adjudged to pay a fine of five dollars and be imprisoned in the county jail for the tenn of two days, and until he pays such fine or is duly discharged from imprisonment according to law. G. W. H Justice of the Peace. [No. 49.] WARRANT OF COMMITMENT FOR A CONTEilPT. (Title as in No. 1.) State of North Carolina, to the keeper of the common jail of county — • Greeting: Whereas, etc. (recite the record of conviction so as to show the entire matter 1496 COUKTS— JUSTICES— -Y. Forms. Ch. 27 of contempt, together with the judgment therefor, and then proceed as follows) : Therefore you are hereby commanded to receive the said M. B. into your custody in the said jail, and him there safely keep during the said term of two daj's, and until he pays the said fine or is duly discharged according to law. Herein fail not. Dated this day of 19 G. W. H Justice of the Peace. Code, s. 909. XoTE. For penalty for failing to turn over books, etc., on expiration of office, see ss. 3598. 3601. For criminal procedure and jurisdiction, see Criminal Procedure. For judgment upon failure to answer, see Civil Procedure, subchapter Judg- ments. CHAPTER 28. COURTS— SUPERIOR. Sections. I. Officers of, 1497—1499 II. Jurisdiction, 1500 — 1505 III. Terms of court, 1506—1510 IV. Special terms, 1511—1518 V. Practice, 1519— 1528 VI. Process, 1529— I53I I. Officers of. 1497. Judges to take oath of office. Every jndge before he shall act as such, shall, in open court, or before the governor, or before one of the judges of the supreme or su]ierior courts, or before some justice of the peace, take the oath appointed for public officers, and also an oath of office. The officer or court before whom said judge shall qualify, shall cawse the judge to subscribe the oaths by him taken, and having certified the same, shall return said oaths to the secretary of state, who shall carefully preserve them ; and if anv judge shall act in his office Ijefore he shall have taken the oaths directed, he shall forfeit and pay two thousand dollars, one half to the use of the state and the other half to the ]ierson who shall sue for the same. Code, s. 924; R. C, c. 31. ss. 18, 19; 1777, c. 115; 1806. c. 694, s. 13; 1848, c. 45. 1498. Vacancies, how filled. All vacancies occurring by deatli, resignation or otherwise in the offices of justice of the supreme or judge of the superior court of tlie state shall be filled for the unex- 1498 COUKTS— SUPEKIOR— 7. Officers. Ch. 28 pired term at the next general election for members of the general assembly held after such vacancy is created. The persons elected at such election shall be commissioned by the governor immediately after the ascertainment of the result in the manner provided by law and shall qualify and enter upon the discharge of the duties of the office within ten days after receiving such commission. 1899, c. G13. 1499. Power to discharge drunken solicitor. When any state solicitor, authorized by election or appointment to act as prosecuting attorney for, or in behalf of the state of North Carolina, in any of the courts of said state, shall appear at such court, in tenn time, drunk or intoxicated, or when it shall be brought to the knowledge of the judge presiding at such co'urt that the solicitor, wliose duty it, is to represent the state at svich court, is in the town in which such court is being held, drunk or intoxicated, at any time, it shall become the duty of such judge, and he is hereby directed to immediately dis- charge such solicitor from the duties of sucli court, for the term then being held, and appoint some competent attorney to act as state solici- tor for the term of said court. Said appointee shall be allowed all the fees and compensation belonging to the solicitor for such term. 1901, c. 717. II. JUEISDICTION. 1500. Original. The superior court shall have original jurisdic- tion of all civil actions wliereof exclusive original jurisdiction is not given to some other court.; and of all criminal actions in which the punishment may exceed a fine of fifty dollars, or imprisonment for thirty days ; and of all such affrays as shall be committed witliin one mile of the place where, and during the time, such court is being held ; and of all offenses whereof exclusive original jurisdiction is given to justices of the peace, if some justice of the peace shall not within twelve months after the commission of the offense proceed to take official cogiiizance thereof. Code. s. 922: 1889, c. 504, s. 2; Const., Art. IV. ss. 12, 27; 1879, c. 92, s. 11; 1881, c. 210. 1501. In vacation or at term. In all cases where the superior court in vacation lias jurisdiction, and all of the parties unite in the proceedings, they may appl.V for relief to the superior court in vaca- tion, or in tenn time, at their election. Code, c. 10, s. 2.?0; 1871-2, c. 3. 1502. Appellate. Tlic supericn- court shall have apiiellato juris- diction of all issues of law or of fact, determined liv a clerk of the- 1502 GOUKTS— SUPEKIOE— //. Jurisdiction. Cli. 28 superior court or a justice of the peace, and of all appeals from infe- rior courts for error assigned, in matters of law, as provided by law. Const., Art. IV, ss. 12, 27; Code, s. 923. 1503. Equity cases transferred to. All suits, petitions and other proceedings pending in the late courts of equity, and in the late courts of ijleas and quarter sessions, and not detennined by final judgment or decree, and all such cases wherein any act was decreed to be done or deed to be executed, and said act was not done or deed ei^ecuted, may be transferred to the superior court of the county in which they were pending, at the instance of any person interested. And the superior court shall have power to make all orders, judg- ments and decrees that shall be necessary for finally adjudicating and settling the same. Code, s. 944; 1871-2, c. 161; 1873-4, c. 183; 1874-5, e. 81; 1876-7, c. 9. 1504. Surveys in disputed boundaries. AVhenever in any suit pending in the superior court, the bounds of lands shall be drawn in question, the court may, if deemed necessary, order a survey of the lands in dispute, agreeable to the bounds and lines expressed in each party's titles, and such other surveys as shall be deemed useful ; which surveys shall be made by two surveyors appointed by the court, one to be named by each of the parties, or by one surveyor, if the parties agree; and the surveyors shall attend according to the order of the court, and make the surveys, and shall make as many accurate plans thereof as shall be ordered by the court; and for such surveys the court shall make a proper allowance, to be taxed as among the costs of the suit. Code, s. 939; R. C, c. 31, s. 119; 1779, c. 157; 1786, c. 252. 1505. Contiguous lands held under one survey, how. Whenever. any jDerson owns several tracts of land which are contiguous or adjoining, but held under diffei'ent deeds and different suiweys, it may be lawful for any such person to have all such bodies of land included in one conunon survey by running around the lines of the outer tracts, and thereupon the possession of any part of said land covered by such common survey shall be deemed and held in law as a possession of the whole and every part thereof: Provided, that nothing in this section shall be construed to affect the rights or claims of persons which have already accriied to any part of said land. In all cases where such common surveys are made as directed by this section, the same may be recorded and registered as in cases of deeds, and shall be evidence in like manner. Code, s. 1277; 1869-70, c. 34, ss. 1, 2. Note. For jurisdiction to quiet titles, see s. 1589. For jurisdiction to sell contingent remainders, see s. 1590. 443 150fi COURTS— SUPERIOR— ///. Terms. Ch. 28 III. Teems of Couet. 1506. When held. A superior Qom-t shall be held by a judge thereof at the courthouse in each county. The state shall lae divided into sixteen judicial districts, and the superior courts in the several counties shall be opened and held at the times hereinafter set forth, and each court shaU continue in session one week, except as herein- after provided, unless the business thereof shall be sooner disposed of, namely: FIEST DISTEICT. The first district shall be composed of the following counties, and the superior courts thereof shall be held at the following times, to-wit : Beaufort County — Third ilonday before the first ^londay in -March, to continue two weeks; sixth Monday after the first Monday in March, for the trial of civil cases exclusively ; tenth ilonday after the first Monday in March, for the trial of criminal cases exclusively ; sixth Monday after the first Monday in September, to continue two weeks, the second week for the trial of civil cases exclusively ; thir- teenth Monday after the first Monday in Septeniter, to eontiniie three weeks, the last two \veeks for the trial of civil cases exclusively. The board of commissioners of the county of Ijcaufort is hereby authorized not to draw a jury for the second and third weeks, or for either of the December terms of the siipcrior court herein pro- vided for, when in their opinion the business of the co\irt does not require it. Cun-ituck County — First Monday before the first ilonday in March ; first Monday in September. Camden County — First Monday in ilarch; first ilonday after the first Monday in September. Pasquotank County — First Monday after the first Monday in Jan- uary, to continue two weeks, for civil business only ; first Monday after the first Monday in March, to continue two weeks, for criminal and civil business ; second Monday after the first Monday in Septem- ber, to continue one week, for criminal and civil business ; twelfth Monday after the first Monday in Septend^er, to continue one week, for civil business only. Perquimans County — Third Monday after the first ilonday in March and September. Chowan County — Fourth Monday after the first Jlonday in March and September. Gates Connty — Fifth Monday after the first ^londay in -March and September. 444 150G COUETS— SUPERIOE— ///. Terms. Ch. 28 Washington County — Seventh Monday after the first Monday in March ; eighth ^Monday after the first ]\Ionday in September. Tyrrell County — Eighth Monday after the first Monday in ^larch ; ninth Monday after the first Monday in September. Hyde County — Eleventh Monday after the first Monday in March ; eleventh Monday after the first Monday in September. Dare County — Ninth Monday after the first Monday in March ; tenth Monday after the first Monday in September. 1901, CO. 28, 29, s. 2; 1903, c. 685; 1905, e. 514. SECOND DISTRICT. The second district shall be composed of the following counties, and the suiDerior courts thereof shall be held at the following times, to-wit : Halifax County — Fifth Monday before the first Monday in March, to be for the trial of criminal cases exclusively, and to continue for one week ; first Monday in March ; the thirteenth Mon- day after the first ]\Ionday in March ; the second Monday before the first Monday in September ; twelfth Monday after the first ]\Ionday in September. The four terms last mentioned each to continue for two weeks. Northampton County — Sixth Monday before the first Monda.y in March, to be for the trial of civil actions exclusively, except jail cases on the criminal docket, and to continue one week ; third [Mon- day after the first Monday in March, to continue two w'eeks ; first Monday in Augaist, to be for the trial of civil cases exclusively, except jail eases on the criminal docket, to continue one week; the eighth Monday after the first ^londay in September, to continue two weeks. Warren County — Third ^londay before the first Monday in March, to continue one week; fifteenth Monday after the first Monday in March, to continue two weeks, and the second Monday after the first Monday in September, to continue two weeks. Bertie County — Second Monday before the first Monday in [March, and the first Monday after the first Monday in September, each to be for the trial of civil cases exclusively, except jail cases on the criminal docket; eighth Monday after the first Monday in March, to continue for two weeks ; tenth Monday after the first Monday in September, to continue for two weeks. Hertford County — Seventh Monday after the first ]\Ionday in [March ; sixth Monday after the first Monday in September, to con- tinue for two weeks, unless sooner adjourned by the court; third Monday before the first Monday in Septemlx-r, which shall be for the trial of criminal cases exclusively ; first [Monday before the first 1506 COURTS— SUPEEI0R—//7. Terms. Ch. 28 Monday in March. . All civil causes and actions not reqiiiriug a jury trial may be heard and determined at the August terra, just as at any other regailar term of said court, and jury eases on the civil docket of said court nuiy be tried by consent of all parties at said August terms. 1901, c. 28, s. 1; 1901, c. 29, s. 3; 190.3, c. 15, s. 2; 1903. c. 24, s. 1; 1903, c. 701, ss. 1, 2; 1905, cc. 7G, 202. THIRD DISTKICT. The third district shall be composed of the following counties, and the superior courts thereof shall be held at the following times, to-wit : Pitt County — Seventh Monday before the first Monday in March ; seventh Monday after the first Monday in March, each to continue for two weeks; second Monday after the first Monday in March, to continue for two weeks, for the trial of civil cases exclusively ; sec- ond Monday after the first Monday in September and the ninth Monday after the first j\Ionday in Sejitember, each for two weeks, and the last named term to be for the trial of civil cases only. Craven County — Third Monday before the first Monday in March, for the trial of civil cases exclusively; ninth Monday after the first Monday in March, to continue for two weeks, for the trial of civil cases exclusively; fifth Monday after the first Monday in March, for the trial of criminal cases exclusively; fourth Monday after the first Monday' in September, and first Monday in July, each for the trial of criminal cases only ; the eleventh Monday after the first Mon- day in September, to continue for two weeks, and fifth Monday after the first Monday in September, each for the trial of civil cases only. Greene County — First Monday before the first Monday in March ; first Monday in September; thirteenth Monday after the first Mon- day in September, the last named term to continue for two weeks; fourth Monday in May, to continue for two weeks, for the trial of civil cases only. Carteret County — First Monday after the first Monday in March, and sixth Monday after the first Monday in September. Jones County — Fourth Monday after the first Monday in March, and eighth Monday after the first Monday in September. Pamlico County — ^.Sixth Monday after the first Monday in March, seventh IMonday after the first Monday in Sejitember. 1901, c. 28, s. 1 : 1903. c. 294; 1905, ce. 341. 428, 452. FOURTH DISTRICT. The fourth district shall be composed of the following counties, and the superior courts thereof shall be held at the following times, to-wit : 446 1506 COURTS— SUPERIOR— ///. Terms. Ch. 28 Franklin County — Sixth Monday before the first Monday in March, sixth Monday after the first Monday in March, each to con- tinue for two weeks ; second Monday before the first Monday in Sep- tember, for the trial of criminal cases exclusively; sixth Monday after the first Monday in September, to continue for two weeks, for the trial of civil cases exclusively. Wilson County — Fourth Monday before the first Monday in ilarch, to continue for two weeks ; ninth Monday after the first ^Ion- day in March, to continue for two weeks ; first Monday in September ; tenth Monday after the first Monday in September, to continue two weeks. Vance County — Eleventh Monday after the first Monday in March, to continue two weeks ; fourth Monday after the first Monday in September, to continue for two weeks ; second Monday before the first Monday in March, to continue for two weeks. EdgecomlDe County — First Monday in March, and first Monday after the first Monday in September ; fourth Monday after the first Monday in March and eighth Monday after the first Monday in September, each to continue for two weeks, for the trial of civil cases exclusively. Martin County — Second Monday after the first Monday in March, second Monday after the first Monday in June, second Monday after the first Monday in September, and fourteenth Monday after the first Monday in September. Nash County — Eighth Monday after the first Monday in March and twelfth ]\Ionday after the first Monday in September, each to continue for two weeks ; first Monday after the first Monday in March and first Monday before the first Monday in September. At the two last named terms, no civil suit shall stand for trial except divorce cases and appeals from justices' judgments: Provided, that this shall not prevent the submission of any issue to the jury by consent, or where there is no objection thereto. 1901, ee. 28, 29, ss. 5, 6; 1903, cc. 6, 6.36, 736; 1905, ec. 17, 298, 349, 423, 535. FIFTH DISTRICT. The fifth district shall be composed of the following counties, and the superior courts thereof .shall be held at the following times, to-wit : Xew Hanover County — Sixth Monday before the first Monday in March, to continue two weeks ; fourth Monday after the first Monday in March, to continue one week ; sixth Monday before the first ilon- day in September, to continue two weeks ; third Monday after the first Monday in September, to continue one week — each for the trial of criminal cases exclusively ; fifth Monday after the first Monday in March, to continue two weeks; twelfth Monday after the first j\Ion- 150G COLTiTS— SUPERIOR— ///. Terms. Ch. 28 day iu ^lart'li, to cuutimic two weeks ; fourth ^louday after the lirst Mondav in September, to continue two weeks; thirteenth Monday after the first IMondaj in September, to continue one week — each for the trial of civil cases exclusively. Pender County — Seventh Monday before the first Monday in March, to continue one week ; third Monday after the first Monday in ^larch, to continue one week; first Monday after the first Monday in September, to continue two weeks. Duplin County — Second Monday before the first Monday in jMarch ; first Mondaj' before the first Monday in September ; eleventh ilonday after the first Monday in September — each to continue two weeks. Sampson Comity — Fourth Monday before the first Monday in March ; eighth Monday after the first Monday in March ; fourth Mon- day before the first Monday in September ; seventh ilonday after the first Monday in September — each to continue two weeks. Lenoir County — Eighth Monday before the first Monday in March, to continue one week ; first Monday after the first Monday in March, to continue two weeks ; eleventh Monday after the first ]\Ionday in March, to continue one week ; fourteenth Monday after the first j\Ion- day in March, to continue two Aveeks ; second Monday before the first Monday in September, to continiie one week ; ninth ^Monday after the first Monday in September, to continue two weeks ; fourteenth Mon- day after the first ^londay in September, to continue two weeks. Onslow County — The first Monday in March ; seventh Monday after the first Monday in March ; seventh Monday before the first Monday in September; sixth Monday after the first Monday in September — each to continue one week: Provided, that the commis- sioners of Onslow county may, in their discretion and before drawing a jury, abolish the January and July terms, or either of them, herein provided for, by giving the judge assigned by law to hold the courts of said county at said terms notice in writing that in tlieir 0]>inion said terms are not necessary for said county. 1903, c. 533, s. 1; 1901, c. 28. s. 1; 1905. c. 373. SI.XTII niSTKU'T. The sixth district .shall be composed of the following counties, and the superior coiirts thereof shall be lield at the following times, to-wit: ITarnett County — Fourth iToTiday before the first Monday in March, two weeks ; eleventh Monday after the first ^londay in ]\Iarch, one week ; first Monday in September, one week ; tenth Monday after the first iMonday in September, two weeks, w-hich shall be for tlie trial of civil cases only. 448 loOlJ COUETS— SUPEEIOK-r///. Terms. Ch. 28 Johnston County — First Monday in March, two weeks ; first Mon- day after the first Monday in September, two weeks ; fourteenth ilon- day after tlie first ilonday in September, two weeks. Wake County — Eighth ]\Ion(Uiy before the first Monday in March, two weeks ; third Monda_y after the first Monday in March, two weeks ; eighth Monday before the first Monday in September, two weeks ; and the third Monday after the first Monday in September, two weeks — all for the trial of criminal cases exclusively ; second Monday before the first ^Monday in March, two weeks ; seventh Monday after the first Monday in March, three weeks ; and seventh Monday after the first Monday in September, three weeks^all for the trial of civil cases exclusively. Wayne County — Sixth Monday befcn-e the first Monday in ilarch, two weeks ; fifth Monday after the first Monday in IMarch, two weeks ; second Monday before the first Monday in September, two weeks ; twelfth Monday after the first Mondaj' in September, two weeks. ISTo civil action shall be tried in the county of Wayne during the first week of any of said terms except by consent. 1901, e. 28; 1903, e. 534; 1905, c. 328. SEVE.NTU DISTRICT. The seventh district shall be composed of the following counties, and the superior courts thereof shall be held at the following times, to-wit : Columbus County — First Monday before the first Monday in March; sixth Monday after the first Monday in March, to continue two weeks; first Monday in September; twelfth Monday after the first Monday in September. Cumberland County — Seventh Monday before the first Monday in March, the twelfth Monday after the first Monday in March, the first Monday before the first Monday in September, the eleventh Mon- day after the first Monday in September, each for the trial of criminal cases exclusively ; the third Monday after the first Monday in March, for the trial of civil cases, except jail cases on the criminal docket; the eighth Monday after the first Monday in March, the seventh Mon- day after the first Monday in September, each to continue for two weeks, for the trial of civil cases exclusively; the second Monday before the first Monday in ]\Iarch, for the trial of civil cases exclu- sively. Robeson County — Fourth Monday before the first ]\Ionday in March, to continue for two weeks, for the trial of criminal cases exclusively ; sixth Monday before the first Monday in September, for the trial of criminal cases exclusively; ninth ]\Ionday after the first Monday in September, to continue for two weeks, for the trial of Rev. Vol. I — 25 449 1506 COURTS— SUPERIOR— ///. Terms. Ch. 28 criminal cases exclusively ; fourth Monday after the first ilonrlay in ilarch, and iirst Monday after tlie tirst ilonday in September, each to continue for two weeks, for the trial of civil cases exclusively; eleventh ]\Ionday after the first Monday in ^March and thirteenth Monday after the first Monday in September, for the trial of civil cases exclusively. Bladen County — Eighth [Monday before the first ilonday in March, first Monday after the first ilonday in March, and sixth ilonday after the first Monday in September. Brunswick County — Third Tuesday after the first ]\Ionday in March, and fourth Tuesday after the first Monday in Sei)tembcr. moi. c. 28. s. 1 ; in03. c. .572, c. 607; 190.5, cc. 98, 365, 453. EIGHTH DISTRICT. The eighth district shall be composed of the following counties, and the superior courts thereof shall be held at the following times, to- wit : Anson County — Third Monday before the first Monday in Feb- ruary, for the trial of criminal cases exclusively ; first Monday after the first Monday in February, for trial of civil cases exclusively; fourth Monday after the first Monday in February, for the trial of civil eases exclusively ; tenth Monday after the first Monday in Feb- ruary, for trial of criminal cases exclusively ; fourteentli iTonday after the first Monday in February, for the trial of civil cases exchi- sively; eighteenth Monday after the fii'st Monday in February, for the trial of civil cases exclusively ; second Monday after the last Mon- day in August, for the trial of criminal cases exclusively ; sixth Mon- day after the last Monday in Augiist, for the trial of civil cases exclu- sively; fourteenth Monday after the last ]\Ioiiday in August, for tlie trial of civil eases exclusively. Chatham County — First Monday in February ; thirteenth ]\Iouday after the first Monday in February; third ilonday before the last Monday in Aug-ust, for the trial of civil cases exclusively ; eleventh Monday after the last Monday in August. Moore Comity — Second Monday before the first ]\lon(lay in Feb- ruary, for the trial of civil cases exclusively; seventh j\ronday after the first ^[onday in February, for the trial of civil cas(>s exclusively ; eleventh ^londay after the first Monday in February, for the trial of criminal cases exclusively; fifteenth ifoiulay after the first ^londay in February, to continue for two weeks, for the trial of civil cases exclusively; second Monday before the last Monday in August, for the trial of criminal cases exclusively; thii"d Monday after the last Mon- day in August, for the trial of civil cases exclusively ; twelfth ^fonday after the last Mf)udav in Auiiust, for tlie trial of criminal ('as{>s exclu- 1506 COURTS— SUPERIOR— 7/7. Terms. Cli. 28 sively ; fifteenth Monday after the last Monday in August, for the trial of civil cases exclusively. Richmond County — Fourth Monday before the first ^Nfonday in February, for the trial of criminal cases exclusively; eighth Monday after the first Monday in February, to continue for two weeks, for the trial of civil cases exclusively ; first Monday after the last Monday in August, for the trial of criminal cases exclusively; fourth Monday after the last Monday in August, to continue for two weeks, for the trial of civil cases exclusively. Scotland County — Fifth Monday after the first Monday in Feb- ruary, for the trial of civil cases exclusively; twelfth Monday after the first Monday in February, for the trial of criminal cases exclu- sively ; seventeenth Monday after the first Monday in February ; eighth Monday after the last Monday in August, for the trial of civil cases exclusively ; third Monday after the last Monday in August, for the trial of criminal cases exclusively. Union County — First Monday before the first Monday in Feb- ruary, for the trial of criminal cases exclusively ; second Monday after the first Monday in February, to continue for two weeks, for the trial of civil cases exclusively ; sixth Monday after the first Monday in February, for the trial of criminal cases exclusively; fourth Monday before the last Monday in Aiigust, for the trial of criminal cases exclu- sively; first Monday before the last Monday in Augaist, to continue two weeks, for the trial of civil cases exclusively ; ninth Monday after the last Monday in Aiigust, to continue two weeks, for the trial of criminal cases exclusively. 1905, c. 35!). NINTH DISTEICT. The ninth district shall be composed of the following counties, and the superior courts thereof shall be held at the following times, to-wit : Durham County — Eighth Monday before the first Monday in March; tenth Monday after the first Monday in March; the first Monday before the first Monday in September, and the thii'teenth Monday after the first Monday in September, each for the trial of criminal cases exclusively; sixth Monday before the first Monday in March ; second Monday after the first Monday in March ; fourth Monday after the first Monday in September, each to continue for two weeks, for the trial of civil cases exclusively. Giiilford County — Ninth Monday before the first Monday in March, to contimie one week; the seventh Monday before the first Monday in March, to continue one week; the third Monday before the first ]\[ouday in March, to continue two weeks; the sixth ]\[on- day after the first Monday in March, to continue two \\ecks ; the 1506 COURTS— SrPERIOE—///. Terms. Ch. 28 thirteenth Monday after the lirst Monday in March, to continue two weeks; the second ]\Ionday before the first Monday in September, to continue one week; the seventh Monday after the first Monday in September, to continue two weeks; all of said terms of court being for the trial of civil cases only. The first Monday before the first Monday in March, to continue for one week ; the fourth ^londay after the first ]\Ionday in ]\Iarch, to continue for one week; the fifteenth Monday after the first Monday in March, to continue one week ; the second Monday after the first Monday in September, to continue one week; the fourteenth Monday after the first Monday in September, to continue one week, all of said last-named five terms of courts to be for criminal cases only. Granville County — Fourth Monday before the first ^Monday in March, to continue one week; eighth Monday after the first Mon- day in March, to continue for two weeks ; fifth Monday before the first jMonday in September, to continue one week ; eleventh Monday after the first Monday in September, to continue fiu- two weeks. Alamance County — First Monday in March ; twelfth Monday after the first Monday in March, for the trial of civil cases exclusively; first Monday in September, to continue for two weeks, the first week for the trial of criminal cases ; ninth Monday after the first Monday in September, for the trial of criminal cases exclusively. Orange County — First Monday after the first Monday in March ; fo^irth Monday before the first Monday in September, and sixth Monday after the first Monday in September ; eleventh Monday after the first Monday in March, for the trial of civil cases exclusively. Person County — Fifth Monday after the first Monday in March ; third Monday before the first Monday in September, and tenth Mon- day after the first j\Ionday in September. 1901, e. 28, s. 1; 1903, c. 198; 1905, cc. 399, 519. TENTH DISTKICT. The tenth district shall be composed of the following counties, and the superior courts thereof shall be held at the following times, to-wit : Montgomery County — Sixth Monday before the first Monday in March, for the trial of criminal cases exclusively ; sixth Monday after the first Monday in March, for the trial of civil cases exclusively ; second Monday after the first Monday in September, to continue for two M'eeks. Iredell County — Fifth ^[onday before the first Monday in ]\[ar(']i ; eleventh Monday after the first Monday in March ; fifth Monday before the first Monday in Sojitember; eighth Monday after the first Monday in Sei)teniber, each to continue for two weeks. 1506 COURTS— SUPEEI0R—/7/. Terms. Ch. 28 Rowan County — Third Monday before the first Monday in March ; ninth Monday after the first Monday in J\lareh ; first Monday before the first Monday in September, and eleventh Monday after the first Monday in September, each to continue for two weei:s ; the civil docket not to be called at the JMay and November terms until the second week. Davidson County — First Monday before the first Monday in March, and the third Monday before the first Monday in September, each to continue for two weeks ; seventh Monday after the first Monday in March, and tenth Monday after the first Monday in September, each for the trial of civil cases exclusively. Stanly County — First Monday after the first Monday in March, and first Monday after the first Monday in September, each for the trial of civil cases exclusively ; eighth Monday before the first Monday in September, and seventh Monday before the first Monday in March, each for the trial of criminal cases exclusively. Randolph County — Second Monday after the first Monday in March ; seventh Monday before the first Monday in September, and thirteenth Monday after the first Monday in September, each to continue for two weeks. Davie County — Fourth Monday after the first Monday in March, and fourth Monday after the first Monday in September, each to con- tinue for two weeks. Yadkin County — Eighth Monday after the first Monday in March ; sixth Monday after the first Monday in September, to continue for two weeks. 1901, c. 28, s. 1; 1903, c. 96, s. 1; 1901, e. 29, s. 10; 1905, ce. 188, 396, 454, 600. ELEVENTH DISTRICT. The eleventh district shall be composed of the following counties, and the superior courts thereof shall be held at the following times, to-wit : Ashe County — The sixth Monday before the first Monday in March ; twelfth Monday after first Monday in March ; seventh Mon- day after the first Monday in September, each continuing for two weeks. Forsyth County — Third Monday before the first Monday in March, to continue for two weeks, for the trial of criminal cases exclusively ; sixth Monday before the first Monday in September, and fifth j\Ionday after the first Monday in September, each for the trial of criminal cases exclusively; eleventh Monday after the first Monday in March, to continue for two weeks; first Monday after the first Monday in March ; first Monday after the first Monday in September, and thirteenth Monday after the first ilonday in September, each to continue for two weeks, for the trial of civil cases exclusively. l.-.On COUKTS— SUPERIOR— ///. Terms. Ch. 28 Rockingliain County — The lirst ^Miuulav liL-furc l\\v tirst ^loiuhiy in March, to continue two weeks, for the trial of both criminal and civil cases; the fourteenth Monday after the first ilonday in !March, to continue two weeks, for the trial of civil cases exclusively ; the fifth Monday before the first Monday in September, to continue one week, for the trial of criminal cases exclusively ; the ninth Monday after the first Monday in September, to continue two weeks, for the trial of both civil and criminal cases. Alleghany County — Third Monday after the first Monday- in March, and second Monday before the first Monday in September. Caswell County — Sixth Monday after the first Monday in March and September. Surry County — Fourth Monday before the first Monday in March ; seventh Monday after the first Monday in March ; first Monday before the first Monday in September, for the trial of civil cases only, and to continue for two weeks ; eleventh Monday after the first ^londay in September, to continue for two weeks. Stokes County — Ninth Monday after the first ^Monday in March, and third Monday after the first Monday in September, each to con- tinue for two weeks. 1901, c. 28, s. 1; 1903. c. 31.3, s. 1; 1903, c. 464; 1903, c. 05(i ; 1905, ec. 250, 326, 337, 418, 521. TWELFTH DISTKICT. The twelfth district shall be composed of the following counties, and the superior courts thereof shall be held at the following times, to-wit : Mecklenburg County — On the third ilonday before the first Mon- day in March, and on the third Monday before the first Monday in September, each of said terms to continue for two weeks; also on the seventh Monday after the first ]\Ionday in ilarch, on the thir- teenth Monday after the first Monday in March, on the third Mon- day after the first jMonday in September, and on the thirteenth Mon- day after the first Monday in September, each of said terms to con- tinue for one week, which shall be for the trial of criminal actions only. For the trial of civil actions only, on the seventh [Monday before the first Monday in ]\iarch, on the first j\Ionday after the first Monday in March, on the seventh Monday before the first Monday in Septem- ber, each of said terms to continue for two weeks; also on the eighth Monday after the first Monday in March, on the fourteenth Monday after the first Monday in March, on the twelfth Monday after the first Monday in September, each of said terms to continue for one week ; also, on the fourth Monday after the first Monday in September, to continue for three weeks. No process nor other writ of any kind, pertaining to civil actions, shall be made returnable to 1506 COURTS— SUPEKIOR— 7//. Terms. Ch. 28 any of the criminal terms, and no business pertaining to civil actions shall be transacted at the criminal terms for Mecklenburg county. At the first fall and spring terms of the criminal courts held for each year grand juries shall be drawn, and the presiding judge shall charge them as provided by law, and such grand juries shall serve during the remaining fall and spring terms respectively. Cleveland County — Third Monday after the first Monday in March ; fifth Monday before the first Monday in September and ninth Monday after the first Monday in September, each to continue for two weeks. Gaston County — First Monday before the first Monday in March, and first Monday after the first Monday in September, each to con- tinue for two weeks ; eleventh Monday after the first Monday in March, to continue for two weeks, and eleventh Monday after the first Monday in September. There shall be drawn and charged a gi'and jury at the first tenn held in the spring and fall respectively, wliich shall serve at the succeeding spring and .fall terms. Lincoln County — Fifth Monday after the first Monday in March, first Monday in September, and fourteenth Monday after the first Monday in September. Cabarrus County — Fifth Monday before the first Monday in March ; ninth Monday after the first Monday in March, and seventh Monday after the first Monday in September, each to continue for two weeks ; first Monday before the first Monday in September. 1901, c. 28, s. 1; 1903, c. 177, ss. 1, 4; 1903, c. 469; 1905, c. 75. THIRTEENTH DISTRICT. The thirteenth district shall be composed of the following counties, and the superior courts thereof shall be held at the following times, to-wit : Wilkes County — First Monday in March and continuing one week, for the trial of criminal cases only; the fifteenth Monday after the first Monday in March, to continue for one week, for the trial of civil cases only ; the second ]\Ionday before the first, Monday in September, for the trial of criminal cases and motions in civil cases not requiring a jury ; fifth Monday after first Monday in September and continuing for two weeks, for the trial of civil cases only. Catawba County — Fourth ilonday before the first Monday in March, to continue for two weeks, the first week for the trial of criminal cases only, the second week for the trial of civil cases only ; ninth Monday after the first Monday in ]\Iarch, to continue for two weeks, for the trial of civil cases exclusively; eighth Monday befoi'e the first ]\Ionday in September, to continue for two weeks, for the trial of both criminal and civil cases; eighth ]\Ionday after the first l.iOG COURTS— SUPERIOK—///. Terms. Cli. 28 ilonday in September, to continiie for two ^\■eeks, the first week for the trial of criminal cases only, the second week for the trial of civil cases only. Alexander County — Second ^londay before the firsi ilonday in March, and fourth Monday after the first ilonday in Sei^tember. Caldwell County — First ilonday before the first ^londny in March ; second Monday after the first Monday in September, for the trial of criminal cases only, and twelfth ilonday after the first ilon- day in September, for the trial of civil cases exclusively, each to continue for two weeks. Mitchell County- — Eleventh IMonday after the first Monday in March, and tenth Monday after the first ^londay in September, each to continue two ^veeks. Watauga County — Third Monday after the first Monday in j\[arch, and fourth Monday before the first ilonday in September, each to continue for two weeks; fifteenth ilonday after the first Monday in March. 1901, c. 28, s. 1; 1901, c. 29, ss. 11, 15; 1903, cc. 231, 282, 629; 1901, c. 29, ss. 13, 14; 1905, cc. 521, 528. FOURTEENTH DISTRICT. The fourteenth district shall be composed of the following counties, and the superior courts thereof shall be held at the following times, to-wit : Yancey County — Third ^londay after the first Monday in March, and first ]\Ionday in September, each to continue for two weeks ; fif- teenth Monday after the first ^Monday in ^larch, to continue for one ■week, for the trial of civil causes only. ]\IcDowell County — Second Monday before the first Monday in March; sixth Monday before the first ilonday in Seiitember, and second Monday after the first Monday in Septeml^er, each to continue for two weeks; the sixth Monday before the first ^Monday in ^[arch, to continue two weeks, for the trial of civil causes only. Henderson County — First Monday in !March, for trial cif criminal cases exclusively, one week ; tenth Monday after the first Monday in March, and tenth ilonday after the first Monday in September, each to continue for two weeks, for the trial of civil cases exclusively, ex- cept jail cases on the criminal docket ; fourth Monday after the first Monday in September, to continue for two weeks, for the trial of criminal cases exclusively. The board of county conunissionors of said county is hereby authorizeil, when they shall deem it for tlie best interests of the county, to decline to draw a grand jury for any civil term of the suyierior court in Henderson county, and when they shall fail to do so, then no criminal cases shall l)e tried at tliat civil 1506 COURTS— SUPEPJOR— 777. Terms. Cli. 28 term of said court except those in which a bill has been found by a previous grand jury. Eutherford County — Fourth Monday before the first Monday in March, and second Monday before the first Monday in September, each to continue for two weeks, for the trial of civil cases exclusively ; fifth Monday after the first Monday in March, and eighth Monday after the first Monday in September, each to continue two weeks, for the trial of criminal and civil causes. Polk County — Seventh Monday after the first Monday in March, and sixth Monday after the first Monday in September, each to con- tinue for two weeks. Burke County — First Monday after the first Monday in March, and fourth Monday before the first Monday in September, each to continue for two weeks, for the trial of both criminal and civil causes ; thirteenth Monday after the first Monday in March, and thirteenth Monday after the first Monday in September, to continue for two weeks, for the trial of civil causes exclusively. IflOl, e. 28, s. 1; 1903, cc. 588, 722; 1901, e. 29, s. 19: 1905, cc. 318, 416. FIFTEENTH DISTEICT. The fifteenth district shall be composed of the following counties, and the superior courts thereof shall be held at the following times, to- wit : Buncombe County — Fourth Monday before the first Monday in March, to continue for three weeks; seventh Monday after the first Monday in March, fifth Monday before the first Monday in Septem- ber, and tenth ilonday after the first Monday in September, each to continue for two weeks ; first j\Ionday after the first Monday in March, to continue for four weeks, for the trial of civil cases exclusively ; twelfth Monday after the first Monday in March, to continue for four weeks, for the trial of civil cases exclusively ; first Monday after the first Monday in September, to continue for six weeks, for the trial of civil eases exclusively ; thirteenth Monday after the first Monday in September, to continue for two weeks, for the trial of civil cases exclusively. The terms to be held on the fourth Monday before the first Monday in March, the seventh Monday after the first Monday in March, the fifth Monday before the first Monday in September, and the tenth Monday after the first Monday in September shall be for the trial of criminal as well as for the trial of civil cases ; and the first week thereof, or such part of said term as may be necessary, shall be for the trial of criminal cases. Madison County — On the sixth Monday before the first Monday in March, to continue for two weeks, for the trial of civil cases exclusively. On the first Monday before the first Monday in March, 150G COURTS— SUPEKIOR—///. Tmns. Cli. 28 to continue for two weeks, for the trial of criminal cases exclusively. On the ninth Monday after the first ilonday in ]\[arch, to con- tinue for two weeks, for the trial of civil cases exclusively; on the third Monday before the first ^Monday in September, to continue for two weeks, for the trial of criminal cases exclusively; and on the seventh Monday after the first IMonday in September, to con- tinue for two weeks, for the trial of civil cases exclusively. Transylvania Co\inty — Fifth Monday after the first Monday in March, and the first Monday befure the first Monday in Septem- ber, each to continue for two weeks ; twelfth Monday after the first Monday in September. 1901, c. 28, s. 1; 1903, cc. 84, 495; 1901, o. 29, s. 16; 1905. c. 419. SIXTEENTH DISTRICT. The sixteenth district shall be composed of the following counties, and the superior courts thereof shall be held at the following times, to-wit : Haywood County — Fifth Monday before the first Monday in March, to continue for three weeks; eighth Monday before the first Monday in September, and third ^Monday after the first IMonday in September, each to continue for two weeks : Provided, that the board of commissioners of Haywood county may, when public interest requires it, decline to draw a gi-and jury for the aforesaid Tuly term of court. Jackson County — Second Monday before the first ]\roii(]ay in March, eleventh Monday after the first Monday in March, and the fifth Monday after the first Monday in September of each year, each to continue for two weeks. The term beginning on the eleventli ilon- day after the first ilonday in ^larch shall be exclusively for the trial of civil causes, and the terms beginning on the second ilonday before the first Monday in ilarcli and on the fifth Monday after the first Monday in September shall be for the trial of both civil and criminal causes. Swain County — First Monday in March, sixth Monday before the first Monday in September, and seventh Monday after the first Monday in September, each to continue for two weeks : Provided, that the board of county commissioners of Swain county may, when the public interest requires it, decline to draw a grand jury for the July term. Graliam County — Second Monday after the first ^londay in March, and first Monday in September, each to continue for two weeks. Cherokee County — Fourth Monday after the first Monday in March ; fourth Monday before the first Monday in September, and 150C COURTS— SUPERIOK—///. Terms. Cli. 28 ninth Monday after the first Monday in September, each to continue for two weeks. Clay County — Sixth Monday after the first Monday in ]\Iarch and second Monday after the first Monday in September. Macon County — Seventh Monday after the first Monday in ]\Iareh, and eleventh Monday after the first Monday in September, each to continue for two weeks. The board of commissioners of Macon county may, for good cause, decline to draw a jury for more than one week for any term of court provided for iii this chapter. 1901, c. 28, s. 1; 1901, c. 29, ss. 17, 18; 190.3, cc. 92, 293, 635; 190.5, ec. 154, 536. 1507. Civil process and motions at criminal terms. Civil pro- cess shall he returnable to, and jijcading's tiled at, all of the courts designated by law as exclusively criminal ; motions in civil actions may be heard upon due notice at such criminal terms ; and trial in civil actions which do not require a jury may be heard at such crim- inal terms, by consent. 1901, c. 28, s. 2. 1508. No grand jury drawn nor criminal process returnable to or solicitors attend, civil terms. No grand juries shall be drawn for the terms of court designated by law as being for the trial of civil cases exclusively, and the solicitors shall not be required to attend nor be entitled to their certificates for attendance \ipon any exclusively civil terms, unless there are cases on the civil docket in which they officially appear, and no criminal process shall be returnable to any term designated in this chapter for the trial of civil actions alone: Provided, this section shall not ajiply to Mecklenburg county. 1901, c. 28, ss. 3, 7. 1509. Rotation of judges. The judges of the superior court shall hold the courts of the several judicial districts successively, accord- ing to the following order and system : The judge of each judicial dis- trict shall hold the courts of the fall circuit for the year one thousand nine hundred and one in the district of which he is the judge, and successively thereafter he shall hold the courts of the several jiidicial districts in the order of their niimbers, district number one follow- ing district number sixteen. The judge riding any spring circuit shall hold all the courts which fall between January and June, both inclusive, and the judge riding any fall circuit shall hold all the courts which fall between July and December, both inclusive. Code, s. 911; 1901, e. 28, ss. 4, 9; K. C, c. 31, s. 20; 1876-7, c. 27; 1879, e. 11; 1885, c. 180; Const., Art. IV, s. 11. 1510. Court adjourned by sheriff when judge not present, if the judge of a superior court shall not Ix' present to hold any term 1510 COUKTS— SUPERIOE— ///. Tenns. Ch. 2S of a court at the time fixed therefor, he may order the sheriff to adjourn said court to any day certain during said term, and on fail- ure to hear from said judge it shall be the duty of the sheriff to adjourn the court from day to day until the fourth day of the term inclusive, unless he shall be sooner informed that the judge from any cause can not hold the term. If by sunset on the fourth day the judge shall not appear to hold the term, or if the sheriff shall be sooner advised that the judge can not hold the term, it shall then be the duty of the sheriff' to adjourn the court until the next term. Code, 8. 926; 1901, c. 269; 1887, c. 13. Note. For term expiring pending trial, see s. 3266. IV. Special Teems. 1511. What judge holds; exchange of courts. The governor shall have jjower to appoint any judge to hold sjiecial terms of the superior court in any couuty, and, by consent of the governor, the judges may exchange the courts of a particular county or counties; but no judge shall be assigned to hold the courts of any district oftener than once in four years ; and whenever a judge shall die or resig-n, his successor shall hold the courts of the 37— 1550 111. Onicpi-s of. 1551—1,555 I. How AND When Held. 1532, How constituted. The supreme court shall consist of a chief justice and four associate justices. Const,, Art. IV, s. 6. 1533 COUETS— SUPEEME— 7. Held. Ch. 29 1533. Justices to take oath of office. The justices, before they act as such, shall, before the goveruor or some judicial officer, take and subscribe the oaths appointed for the qualification of public officers, and also an oath of office, which shall be certified by the officer taking the same and delivered to the secretary of state, to be safely kept. Code, s. !)55; U. C, c. 33, s. 3; 1818, c. 963. 1534. Quorum. Three justices shall constitute a quoriun for the transaction of the business of the court. Code, s. 956; 1889, c. 230. 1535. Convenes, when. There shall be held at the seat of gov- ernment of the state in each year two terms of the supreme coiirt, commencing on the first Monday in February and the last Mon- day in August. Code, s. 953; 1901, c. 660; 1887, c. 49; 1S81, c. 178. 1536. Sits until business is dispatched; name of court; ad- journed if no justice present first Weel<. The court AmW sit at each term until all the business ou the docket shall be determined or continued on good cause shown. The court shall bear the name and style of '"The Supreme Court of Xorth Carolina," and shall be a court of record ; and the papers and records belonging to the clerk's office thereof shall be constantly kept within the city of Ealeigh : Provided, that in case no one of the jiistices shall attend the term during the first week thereof, at the end of that time the court shall stand adjourned till the next term, and the causes on the docket be continued. Code, s. 954; R. C, c. 33, s. 2; 1804, c. 660; 1805, o. 674; 1818, o. 962; 1828, c. 13; 1842, e. 15; 1846, cc. 28, 29. II. Peactice in. 1537. Original jurisdiction, claims against state. The supreme court shall have original jurisdiction to hear claims against the state, but its decision shall be merely recommendatory; no process in the nature of execution shall issue thereon ; they shall be reported to the next session of the general assembly for its action. Const., Art. IV, s. 9. 1538. Manner of prosecuting claims against the state. Any person having any claim against the state may file his complaint in the office of the clerk of the siijjreme court, setting forth the nature and grounds of his claim. He shall cause a copy of his com- plaint to be served on the governor, and therein request him to appear on behalf of the state and answer his claim. The copy shall be Rev. Vol. 1—26 465 1538 COUETS— SrPRE:\IE— 77. Practice. Ch. 29 served at least twenty days before application for relief shall be made to the court. In case of an appearance for the state by the governor, or any other authorized otiicer, the pleadings and trial shall be conducted in such manner as the court shall direct. If an issue of fact shall be joined on the pleadings, the court shall trans- fer it to the superior court of some convenient county for trial by a jury, as other issues of fact are directed to be tried, and the judge of the court before whom the trial is had shall certify to the supreme court, at its next term, the verdict and the case, if any, made up and settled as prescribed in cases of appeal to the supreme court. If the state shall not appear in the action by any authorized officer, the court may make up issues and send them for trial, as aforesaid. The supreme court shall in all cases report the facts found, and their recommendation thereon, with the reasons thereof, to the general assembly at its next term. Code, s. 948. 1539. Jurisdiction as court of review. The supreme court .-^hall have jurisdiction to review, upon ajipeal, any decision of the courts below, upon any matter of law or legal inference. And the juris- diction of said court over "issues of fact" and "questions of fact" shall be the same exercised by it before the adoption of the consti- tution of one thousand eight hundred and sixty-eight, and the court shall have the power to issue any remedial writs necessary to give it a general supervision and control over the proceedings of the infe- rior courts. Const., Art. IV, s. 8. 1540. How cases taken to. Cases shall be taken to the supreme court by appeal, as provided by law. Code, s. 946. 1541. IVIay make rules of court. The justices of the supreme court shall prescribe and establish from time to time rules of practice for that court and also for the superior courts. The clerk shall certify to the judges of the superior court the rules of practice for said court, to be entered on the records thereof in each county. Code. s. 901; R. C, c. 33, s. 13; 1818, c. 963. 1542. Judgment on record; execution, where returnable, in every case the court may render such sentence, judgment and decree as on inspection of the whole record it shall appear to them ought in law to be rendered thereon; and it may at its discretion make the writs of execution which it may issue retiirnable either to the said court, or to the superior court: Provided, that wlien an execu- tion shall be made returnable as last inentinHcd, a ccrtificiitc of the 1542 COUETS— SUPREME— 77. Practice. Ch. 29 final judgment of the supreme court shall always be transmitted to the superior court aforesaid, and there be recorded : Provided fur- ther, that the said superior court may enforce obedience to the exe- cution, and in the event of its not being executed may issue new or further execution or process thereon in the same manner as though the first execution had issued from the said sup)erior court: Pro- vided also, that in criminal cases the decision of the supreme court shall be certified to the sujjerior court from which the case Avas transmitted, which superior court shall proceed to judgment and sentence agreeable to the decision of the supreme court and the laws of the state. Code, s. 957; R. C, c. 33, s. 6; 1799, c. 520; 1818, c. 963; 1830, c. 2; 1868-9, c. 962. 1543. Appeals dismissed, when. Suits and appeals pending in the supreme court may be dismissed on failure to prosecute the same, after a rule obtained for that purpose and served on the plain- tiff or appellant, his agent or attorney, at least thirty days before the term next ensuing that of entering the rule ; when, if the party shall fail to prosecute his suit or appeal, the court shall, at the elec- tion of the adverse party, dismiss the suit or appeal at the costs of the plaintiff' or appellant, or proceed to hear and determine it. Code, s. 967; R. C, e. 33, s. 20; 1848, c. 28; Supra. Ct. Rules, 15, et seq. 1544. No judgment on interlocutory order; opinion certified below. When an appeal shall be taken to the supreme court from any interlocutory judgment, the supreme court shall not enter any judgment reversing, affirming or modifying the judgTiient, order or decree so appealed from, but shall cavise their opinion to be certified to the court below, with instructions to proceed upon such order, judgment or decree, or to reverse or modify the same according to said opinion, and the court below shall enter upon its records the opinion at length, and proceed in the cause according to the instruc- tions. Code, s. 962. 1545. Power over amendments; further testimony, when. The supreme court shall have power to amend any process, pleading or proceeding either in form or substance for the purpose of furthering justice, on such tei'ms as shall be deemed just at any time before final judgiucnt. Also to amend by making proper parties to any case where the court may deem it necessary and proper for the pur- poses of justice and on such terms as the court may prescribe. And also, whenever it shall appear necessary for the purpose of justice, to allow and direct the taking of further testimony in any case which may be pending in said court under such rules as may be 1545 COURTS— SUPREME— //. Practice. Ch. 29 prescribed, or the court may remand the case to the intent that amendments may be made, further testimony taken or other proceed- ings had in the court below. Code, s. 965; R. C, c. 33, s. IT; 1777, c. 115, s. 75; 1785, c. 233; 1792, c. 360; 1831, c. 46. 1546. Petition to rehear may be filed when; execution re- strained. A petition to rehear may be tiled during the vacation suc- ceeding the term of the court at which the judgment was rendered, or within twenty days after the commencement of the succeeding term, and upon the filing of such petition the chief justice, or either of the associate justices, may, upon such terms as he sees fit, make an order restraining the issuing of an execution, or the collection and payment of the same, until the next term of said court, or until the petition to rehear shall have been determined. Code, s. 966; R. C, c. 33, s. 18; Supm. Ct. Rules, 52, 53, 54. 1547. Exhibits, how proved. Exhibits or other documents rela- tive to cases pending in the supreme court may be proved by the parol testimony of witnesses to be examined in said court in the same manner and under the same rules as such exhibits or docu- ments may be proved in the superior court and suitors in said court may have subpoenas to enforce the attendance of witnesses, who shall be liable to the same penalties and actions for nonattendance, and be entitled to the same pay for traveling, ferriage and attend- ance as witnesses in the superior court: Provided, that witnesses attending the supreme court shall be taxed in the bill of costs and paid by the party on whose behalf they may be summoned. Code, s. 963; R. C, c. 33, s. 21; 1820, c. 1070; 1825, c. 1282; 1842, c. 1. 1548. Opinions and judgments to be in writing. The justices shall deliver their opinions and judgments in writing, and the clerk shall make no entry upon the records of the court that any cause pending therein is decided, nor give to any person a certificate of such decision, nor issue execution in such suit, until after the opinion of the court shall have been delivered publicly in open court, and a written copy of the same opinion shall have been delivered to the clerk ; which shall afterwards be filed among the records of the court and published in the reports of the decisions made by the court: Provided, that the justices shall not be required to writ« their opinions in full except in cases in which they deem it necessary. Code, 9. 964; 1893, c. 379, s. 5; R. C, c. 33, s. 16; 1810, c. 785. 1549. Certificates transmitted, when; execution for costs; penalty. The clerk on the first ^londay in each lUdiitli sliall traus- mit by some safe hand, or by mail, to the clerks of the superior courts ir.49 COUETS— SUPEEME— 77. Practice. Ch. 29 certificates of the decisions of the sui^reme court in cases sent from said court, which shall have been on file ten days ; and thereupon the said clerks respectively shall issue execution for the costs incui-red in the courts from which the cases were sent ; and the clerk of the supreme court shall issue execution for the costs incurred in that court, including all publications in newspapers made in the progress of the cause in that court, and by order of the same, and all postage on letters which concern the transfer of original papers. And if the clerk shall fail for the space of twenty days to perform the duty herein enjoined of transmitting the said certificates of decisions, he shall forfeit and pay to the party or parties in whose favor the supreme court shall have decided, one hundred dollars. Code, s. 968; 1887, c. 41; R. C, c. 33, s. 21; 1820, c. 1070; 1825, c. 1282; 1842, e. 1, s. 3. 1 550. Records recorded. The court may order the clerk to record such parts of the record of cases as it may deem necessary. Code, s. 959. III. Officees of. 1551. May appoint acting attorney general. If the attorney general should fail at any term of the supreme court to attend to the business which by law is assigned him, the court may appoint some counsel learned in the law to discharge his duties during the term. Code, s. 969; R. C, c. 33, s. 22; 1846, c. 29. 1552. Reporter. The supreme court may employ a reporter of its decisions. Code, s. 3363; 1893, c. 379, s. 4; 1897, c. 429. Note. For compensation, see s. 2771. 1553. Clerk. The clerk of the supreme court shall be appointed by the court, and shall hold his ofiice for eight years. Const., Art. IV, s. 15. 1554. Money in hands of clerk. The clerk of the supreme court shall, at the beginning of each fall term, produce to the court a state- ment on oath of all moneys remaining in his hands which have been paid into his ofiice three years or more previous thereto, whether received directly from parties or from his predecessor in office, and is not detained in his hands by special order of the court, specifying therein the name of the person to whom the same is payable, and his address, if known ; a copy of which report shall be transmitted to the state treasurer and to the auditor. Code, s. 1864; R. C, o. 73; 1823, c. 1186; 1831, c. 3. 1555 COURTS— SUPREME— ///. Officers. Ch. 29 1555. Marshal. The supreme court may appoint an otticer to be srvk-d "iiKiislial (if the supreme court," removable at will, who shall attend upon the court during its sessions. Code, s. 950; 1S73-4, c. 34; 1881, c. 306. Xote. For compensation, see s. 2770. Note. For power of justices to take probates, see s. 989. For clerk's bond and oath of office, see s. 290. For duty of clerk on affirmance in capital felony, see s. 3284. CHAPTER 30. DESCENTS. ( Section 1550.) 1556. Rules of. When any person shall die seized of any inlierit- ance, or of any right thereto, or entitled to any interest therein, not having devised the same, it shall descend under the following rules: Code, s. 1281; R. C, c. 38, s. 1. Rule 1. Lineal descent. Every inheritance shall lineally descend forever to the issue of the person vcho died last seized, entitled or having any interest therein, but shall not lineally ascend, except as hereinafter i)ro- vided. Code, s. 1281; R. C, e. 38, Rule 1. Rule 2. Females inherit ivith males, younger with older children; advancements accounted for. Females shall inherit equally with males, and younger with older children : Provided, that whenever a parent shall die intestate, hav- ing in his or her lifetime settled upon or advanced to any of his or her children, any real or personal estate, such child so advanced in real estate shall be utterly excluded from any .share in the real estate descended from such parent, except so much thereof as will, when added to the real estate advanced, make the share of him who is advanced equal to the share of those who may not have been advanced, or not equally advanced. And any child so advanced in personal estate .shall be utterly excluded from any share in tiio per- 1556 DESCEXTS. Ch. 30 sonal estate of which the parent died possessed, except so much thereof as will, when added to the personal estate advanced, make the share of him who is advanced equal to the share of those who may not have been advanced, or not equally advanced. And in case any one of the children shall have been advanced in real estate of greater value than an equal share thereof which may come to the other children, he or his legal representatives shall be charged in the distribution of the personal estate of such deceased parent with the excess in value of such real estate so advanced as aforesaid, over and above an equal share as aforesaid. And in case any of the children shall have been advanced in personal estate of greater value than an equal share thereof which shall come to the other children, he or his legal representatives shall be charged in the division of the real estate, if there be any, with the excess in value, which he may have received as aforesaid, over and above an equal distributive share of the personal estate. Code, s. 1281; R. C, c. 38, s. 1, Rule 2; 1784, c. 204, s. 2; 1808, c. 739; 1844, c. 51, ss. 1, 2. KuLE 3. Lineal descendant represents ancestor. The lineal descendants of any pei'son deceased shall represent their ancestor, and stand in the same place as the person himself would have done had he been living. Code, s. 1281; R. C, c. 38, Rule 3; 1808, e. 739. Rule -i. Collateral descent ivhen estate derived from ancestor. On failure of lineal descendants, and where the inheritance has been transmitted by descent from an ancestor, or has been derived by gift, devise or settlement from an ancestor, to whom the person thus advanced would in the event of such ancestor's death, have been the heir or one of the heirs, the inheritance shall descend to the next collateral relations, capable of inheriting, of the person last seized, who were of the blood of such ancestor, subject to the two preceding rules. Code, s. 1281; R. C, c. 38, Rule 4; 1808, c. 739. Rule 5. Collateral descent ichen estate not derived from ancestor. On failure of lineal descendants, and where the inheritance has not been transmitted by descent or derived as aforesaid from an ances- tor, or where, if so transmitted or derived, the blood of such ancestor is extinct, the inheritance shall descend to the next collateral I'elatiou, capable of inheriting, of the person last seized, whether of the pater- nal or maternal line, subject to the second and third rules. Code, s. 1281; R. C, c. 38, Rule 5; 1808, c. 739. 471 1556 DESCEXTS. Ch. 30 EuLE 6. Half blood inherits icith whole; parent from child. Collateral relations of the half blood shall inherit equally with those of the whole blood, and the degrees of relationship shall be com- puted according to the rules which prevail in descents at common law: Provided, that in all cases where the person last seized shall have left no issue capable of inheriting, nor brother, nor sister, nor issue of such, the inheritance shall vest in the father if living, and if not, then in the mother if living. Code, s. 1281; R. C, c. 38, Rule 6; 1808, c. 739. Rule 7. Persons unhorn tal-e, u-hen. ~No inheritance shall descend to any person, as heir of the person last seized, unless such person shall be in life at the death of the person last seized, or shall be born within ten lunar months after the death of the person last seized. Code, s. 1281; R. C, c. 38, Rule 7; 1823, c. 1210. Rule 8. ^Vhen ividow takes as heir. When any person shall die, leaving none who can claim as heir to him, his widow shall be deemed his heir, and as such shall inherit his estate. Code, s. 1281; R. C, c. 38, Rule 8; 1801, c. 575, s. 1. Rule 9. Illegitimate children inherit from mother. When there shall be no legitimate issue, every illegitimate child of the mother, and the descendant of any such child deceased, shall be considered an heir, and as such shall inherit her estate ; but such child or descendant shall not be allowed to claim, as representing such mother, any part of the estate of her kindred, either lineal or collateral. Code, s. 1281; R. C, c. 38, Rule 10; 1799, c. 522. Rule 10. 117to may take from illegitimate children. Illegitimate children shall be considered legitimate as between themselves and their representatives, and their estates shall descend accordingly in the same manner as if they had been born in wedlock. And in case of the death of any such child or his issue, without leav- ing issue, his estate shall descend to such person as would inherit, if all such children had been born in wedlock: Provided, that when any illegitimate child shall die without issue, his inheritance shall vest in the mother in the same manner as is provided in rule six of this chapter. Code, s. 1281; R. C, c. 38, Rule 11. 472 ir.SG DESCEXTS. Ch. 30 J\ULE 11. Estate for life of another, not devised, an estate of inherit- ance. Every estate for the life of another, not devised, shall be deemed an inheritance of the deceased owner, within the meaning and opera- tion of this chapter. Code, s. 1281; R. C, e. 38, Rule 12. KuLE 12. Seizin defined. Every person, in whom a seizin is required by any of the provis- ions of this chapter, shall be deemed to have been seized, if he may have had any right, title or interest in the inheritance. Code, s. 1281; R. g., c. 38, Rule 13. Rule 13. Issue of certain colored persons to inherit. The children of colored parents born at any time before the first day of January, one thousand eight hundred and sixty-eight, of per- sons living together as man and wife, are hereby declared legitimate children of such parents or either one of them, with all the rights of heirs at law and next of kin, with respect to the estate or estates of any such parents, or either one of them. If such children be dead their issue shall represent them with all the rights of heirs at law and next of kin provided by this section for their deceased parents or either of them if they had been living; and the provision of this section shall apjaly to the estates of such children as are now deceased or otherwise. Code, s. 1281; 1897, c. 153; 1879, e. 73. Note. For distribution of personal property, see Administration, subciiapter Distribution. CHAPTER 31. DIVORCE AND ALIMONY. (Sections 15.57—1.570.) 1557. Jurisdiction. The superior court shall have jurisdiction of complaints for divorce and alimony, or either. Code, s. 1282; 1868-9, e. 93, s. 45. 1558 DIVORCE AXD ALIMONY. Ch. 31 1558. Bond for costs unnecessary. It shall not be necessary for either ])arty tci a proceeiliiig for dixurce or alimony to jjivc any under- taking to the other party to secure such costs as such other partv' may recover. Code, s. 1294; 1S71-2, c. 193, s. 41. 1 559. Venue. In all proceedings fur divorce, the summons shall be returnable to the court of the county in which the a|i])licant resides. Code, s. 1289; 1871-2. c. 193, s. 40. 1560. What marriages may be declared void on application of either party. The sujierior court in term time, nn ap]ilication made as by law provided, by either party tf such conveyance shall be held by any ot^ier person for a term of life or years, such grantee, his heirs, executors, administrators, and assigns shall have the like advantages against the tenant for lifV, and against the tenant for years, his executors, administrators, and assigns, by entry for nonpayment of rent and for doing of waste, and the same benefit and advantage and reniedie^s by action for tlie not performing of other conditions, covenants, or agreements, con- tained and expressed in the indentures or other agreement, by which such tenant for life or years holds the same lands, tenements, rents or hereditaments against said tenant for life or for years, his executors, administrators and assigns, as the grantor or lessor himself or his heirs might have. Code, s. 1331; E. C, c. 43, s. 7; 32 Hen. VIII.. e. 34; 18G8-9, c. 156, s. 18. 1586. Right of life tenant against grantee of reversion. Lessees and grantees of lands, rents, tenements and hereditaments for term of years or life, their executors, administrators and assigns, shall have like action, advantage and remedy against every person, his heirs and assig-ns, who shall have any conveyance from any per- son of the reversion of the same lands, rents, tenements and heredita- ments, so let or any parcel thereof, for any condition, covenant or agreement contained or expressed in the indenture of their leases, as the same lessees, or any of them, might and should have had against the said le.ssor and grantor, and his heirs. Code, s. 1332; E. C, c. 43, s. 8; 32 Hen. VIII., c. 34, s. 2. . 1587. Collateral warranties abolished; warranties by life ten- ant good only as to heir. All collateral warranties are al)iilished; and all warranties made by any tenant for life of lands, tcncnients or hereditaments, the same descending or coming to any person in rever- sion or remainder shall be void; and all such warranties, as afore- said, shall be deemed covenants ntily. and biiiersou by deed or will to convey any propei'ty, which does not yield at the time of the conveyance a clear annual income exceeding five hundred dollars, to any other person in trust to receive and pay the profits annually or oftener for the support and maintenance of any child, grandchild or other relation of the grantor, for the life of such child, grandchild or other relation, with remainder as the grantor shall provide; and the jiroperty so conveyed shall not be liable for or subject to be seized or taken in any manner for the debts of such child, grandchild or other relations, whether the same be contracted or incurred before or after the grant. Code, s. 1335; 1871-2, c. 204, s. 1. 1589. Titles quieted. An action may be brought by any person against another who claims an estate or interest in real property adverse to him, for tlie purpose of determining such adverse claims. If the defendant in such action disclaim in his answer any interest or estate in the property, or suffer judgment to be taken against him without answer, the plaintiff can not recover costs. In any case in which judgment has been or shall be docketed, whether such judgment shall be in favor of or against the person bringing such action, or shall be claimed by him, or shall affect real estate claimed by him, or whether such judgment shall be in favor of or against the person against whom such action may be brought, or shall be claimed by him, or shall affect real estate claimed by him, the lien of said judgment shall be such claim of an estate or interest in real estate as is contemplated by this section. 1893, c. 6; 1903, e. 763. 1590. Contingent remainders may be sold; procedure; proviso. In all cases where there is a vested interest in real estate, and a con- tingent remainder over to persons who a:re not in being, or when the contingency has not yet happened which will determine who the remaindermen are, there may be a sale of the property by a pro- ceeding in the sujaerior court at term time, which proceeding shall be conducted in the manner pointed out in this section: Such pro- ceedings may be commenced by summons by any person having a vested interest in the land, and all persons in esse who are interested in said land, shall be made parties defendant and served with sum- mons as in other civil actions, and upon nonresidents or persons whoso names and residences are unknown, by publication as now required by law or such sen^ice in lieu of publication as now provided by laM-. In cases where the remainder will or may go to minors or jDersons under other disabilities, or to persons not in being, or whose names and residences are not known, or who may in any contingency 483 1590 ESTATES. Ch. 33 bpcome interested in said land, but be<'aii?e of such contingency can not be' ascertained, the judge of the superior court shall, after due inijuirv of persons who are in no way interested in or connected with such proceeding, designate and aijjioint some discreet pei-son as giuirdian ad litem to represent such remaindermen, iipim whom summons shall be served as provided bv law for other guardians ad litem, and it shall be the duty of such guardian ad litem to defend such actions, and when counsel is needed to represent him, to make this known to the judge, who shall by an order give instructions as to the emplo^^nent of counsel and the pa."s^nent of fees. The court shall, if the interest of all parties require or would be materially enhanced by it, order a sale of such pro]>erty or any part thereof for reinvestment, either in purchasing or in inii)roving real estate less expense allowed by the court for the proceeding and sale, and such newly acquired or im])roved real estate shall be held upon thf same contingencies and in like manner as was the ]n"o]ierty ordered to be sold. The cotirt may authorize the loaning of such money sub- ject to its approval until such time when it can be reinvested in real estate, such time not to exceed two years. 1903, c. 99; 1905, c. 548. 1591. Sale of contingent remainders validated. In all cases wherein property has been conveyed by deed, or devised by will, upon contingent remainder, executory devise or other limitation wherein a judgment of a superior court has been rendered authorizing the sale of such property discharged of such contingent remainder, executory devise or other limitation in actions or special proceedings wherein all persons in being who would have taken such property if the con- tingency had then happened were parties, such judgment shall be valid and binding upon the parties thereto and upon all other ])ersons not then in being: Provided, that nothing herein contained shall be construed to impair or destroy any vested right or estate. 1905, c. 9.3. 1592 EVIDENCE—/. Statutes. Ch. 34 CHAPTER 34. EVIDENCE. Sections. I. Statutes. 1592—1595 II. Grants, deeds and wills, 1596 — 1615 III. Official writings, 1616—1617 IV. Records, etc., other states, 1618—1619 V. Counsel and physicians, 1620 — 1621 VI. Accounts, 1622—1625 VII. Life tables, • 1626—1627 VIII. Competency of witnesses, 1628 — 1638 IX. Attendance of witness, 16.39—1644 X. Depositions, 1645 — 1655 XI. Writings, production, inspection, 1656 — 1658 XII. Confederate currency, 1659 I. Statutes. 1592. How proved. All statutes, or joint resolutions, passed by the general assembly may be read in evidence from the printed statute book. Code, s. 1339; R. C, e. 44, s. 4; 1826, c. 7. 1593. Martin's collection; copies certified by secretary of state. Any private act published by Francis X. Martin, in his col- lection of private acts, or a copy of any act of the general assembly certified b}' the secretary of state, shall be received in evidence io every court. Code, s. 1340; R. C, c. 44, s. 5; 1826, c. 7, s. 2. 1594. Laws of other states or foreign countries, how proved. A printed copy of a statute, or other written law, of another state, or of a territory, or of a foreign country, or a printed copy of a procla- mation, edict, decree or ordinance, by the executive thereof, con- tained in a book or publication purporting or proved to have been published by the authority thereof, or proved to be commonly admit- ted as evidence of the existing law, in the judicial tribmials thereof, shall be evidence of the statute, law, proclamation, edict, decree, or ordinance. The unwritten, or common law of another state, or of a territory, or of a foreign country, may be proved as a fact by oral evi- dence. The books of the reports of cases, adjudged in the courts thereof, shall also be admitted as evidence of the unwritten or common law thereof. And either party may also exhibit a copy of the law of such state, territory, or foreign country, duly certified 1594 EVIDENCE— 7. Statutes. Cb. 34 by tbe secretary of state of this state as baving been copied from a printed volume of tbe laws of snch state, territory or coimtry, on file in tbe state, or supreme court, library, or in tbe offices of the governor or secretary of state. Code, s. 1338; K. C, c. 44, s. 3; 1823, c. 1193, ss. 1, 3; C. C. P., s. 360. Note. See also, s. 2503. 1595. Town ordinances. In the trial of appeals from mayors' courts, when tlie offense charged is the violation of a town ordinance, a copy of tbe ordinance alleged to have been violated, certified by the mayor, shall be prima facie evidence of tbe existence of such ordinance. 1899, c. 277, s. 2. II. Grants. Deeds axd Wili-s. 1596. Copies certified by secretary of state. Copies of the plots and certificates of survey, or their accompanying warrants, and all abstracts of grants, which may be filed in the office of tbe secretary of state, certified by him as true copies, shall be as good evidence, in any court, as the original. Code, s. 1341; R. C, c. 44, s. 6; 1822, c. 1154. 1597. Copies of grants certified by clerk of secretary of state validated. All copies of grants heretofore issued from tbe office of the secretary of state, duly certified under tbe great seal of the state, and to \vhicli tbe name of the secretary has been written or affixed by the clerk of the said secretary of state, are hereby ratified ami approved and declared to be good and valid copies of the original grants and admissible in evidence in all courts of this state when duly registered in the counties in which the land lies ; all such copies heretofore registered in said counties are hereby declared to be lawful and regular in all respects as if tbe same had been signed by the sec- retary of state in person and duly registered. 1901, c. 613. 1598. Copies certified by register of deeds, evidence, when, A copy of the record of any deed, mortgage, power of attorney, or other instnnnent required or allowed to be registered, duly authen- ticated by the certificate and official seal of the register of deeds of the county where tbe original or duly certified copy has been regis- tered, may be given in evidence in any of the courts of the state where the original of such copy would be admitted as evidence, although the party offering the same shall be entitled to the posses- sion of the original, and shall not account for the nonproduction 480 1598 EVIDENCE—//. Grants, Deeds, Wills. Ch. 34 thereof, unless by a rule or order of the court, made upon affidavit suggesting some material variance from the original in such registry- or other sufficient grounds, such party shall have been previously required to produce the original, in which case the same shall be pro- duced or its absence duly accounted for according to the course and practice of the court. Code, s. 12.51; 1S!)3, c. 119, s. 2; Pt. C, c. .37, s. 16; 1846, c. 68, s. 1. 1599. Copy certified may be registered in another county and given in evidence. A copy from the office of the register of deeds of any count}- of the record of any deed, mortgage, power of attorney or other instrument required or allowed to be registered, duly authen- ticated by the certificate and official seal of the register of deeds of such county, may, upon presentation to the register of deeds of any other county, be registered without further proof, and the record thereof, or a duly certified copy of the same, may be given in evidence in any court in the state where the original of such copy would be admitted as evidence, although the party ofl:'ering the same shall be entitled to the possession of the original, and shall not account for the nonproduction thereof, unless by a rule or order of the court, made iipon affidavit suggesting some material variance from the original in such registry or other sufficient grounds, such party shall have been previously required to produce the original, in which case the same shall be produced or its absence duly accounted for accord- ing to the coiirse and practice of the court. Code, s. 1253: 1893, e. 119, s. 3; R. C, c. 37, 8. 16; 1846, c. 68. Note. See Conveyances. For record of surveys as evidence, see s. 1723. For registration of certificate of survey as evidence, see s. 2663. See also, s. 988. 1600. Evidence to support title under H. E. IVIcCulloch. In all actions or suits, wherein it may be necessary for either party to prove title, by virtue of a grant or grants made by the king of Great Britain or Earl Granville to Henry McCulloch, or Henry Eustace McCulloch, it shall be sufficient for suqh party, in the usual manner, to give evidence of the grant or conveyance from the king of Great Britain or Earl Granville to the said Henry McCulloch, or Henry Eustace ilcCulloch, and the mesne conveyances there- after, without giving any evidence of the deed or deeds of release, relinquishment or confirmation of Earl Granville to the said Henry McCulloch, or Henry Eustace ilcCulloch, or 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. Code,s. 1336; R. C, c. 44, s. 1; 1819, e. 1021. IGOl EVIDEXCE— //. Grants, Deeds. Wills. Cli. 34 1601. Grant or copy from proprietor, sufficient evidence of title under him. In all trials whure the titles of either ])laiiititf or ilefeml- ant shall be derived from Henry Eustace McCulloch, or Henry McCnlloch, out of their tracts number one and three, it shall not be required of such party to prodtice, in support of his title, either the original grant from the crown to the projn'ietors, or a registered copy thereof; but in all such cases the grant or deed executed by stich reputed proprietors, or by his or their lawful attorney, or a certified copy thereof, shall be deemed and held sufficient jiroof of the title of such proprietors, in the same manner as tliough the original grants were produced in evidence. Code, s. 1337; P.. C, c. 44, s. 2; 1807, c. 724. 1602. Deeds registered and lost, registry lost, presumed in due form. Whenever it shall be shown in any judicial proceeding, that a deed or conveyance of real estate has been lost or destroyed, and that the same had been registered, and that the register's book containing the copy has been destroyed by fire or other accident, so that a copy thereof can not be had, it shall be presumed and held, unless the contents be shown to have been otherwise, that such deed or conveyance transferred an estate in fee simple, if the grantor was entitled to such an estate at the time of conveyance; and that it was made upon sufiicient consideration. Code, s. 1348; R. C, c. 44, s. 14; 1854, e. 17. 1603. Copy of will. Copies of wills, duly certified by the proper ofticer, may be given in evidence in any proceeding wherein the contents of the will may be competent evidence. Code, s. 2175; R. C, c. 119, s. 21; 1784, c. 22.5, s. 6. 1604. Written instruments proved otherwise than by attesting witnesses; not to affect registration. It shall not be necessary to prove by the attesting witness instruments to the validity of which the attestation is not requisite, and such instruments may be ]iroved by admission or otherwise as if there had been no attesting witness thereto: Provided, that this section shall not affect the method and manner of proving instruments for registration. 1005, 0. 204. 1605. Evidence to fit the land to the description. In all actions for the possession of or title to any real estate jiand testimony may be introduced to identify the land sued for, and fit it to the description contained in the paper-writing oflfered as evidence of title or of the right of possession, and if from this evidence the jury is satisfied that the land in question is the identical laiul inteiuled to be conveyed by the parties to such jiapcr-writiiig, then such jiaper- 1605 EVIDENCE—//. Grants, Deeds. Wills. Ch. 34 writing shall be deemed and taken to be snfficient in law to pass such title to or interest in such land as it purports to pass: Provided, that such ijajjer-writing is in all other respects sufficient to pass such title or interest. 1891, e. 405, s. 1. Note. For vagueness of description in a deed, see s. 948. 1606. Recitals in tax deeds in Haywood and Henderson. In all legal controversies touching lands in the counties of Haywood and Henderson, in which either party shall claim title under any sale for taxes alleged to have been clue and laid, in and for the year one thousand seven hundred and ninety-six, or any preceding year, the recital contained in the deed or assurance, made by the sheriff or <:>tlier officer conveying or assuring the same, of the taxes having been laid and assessed, and of the same having remained due and unpaid, shall be held and taken to be prima facie evidence of tlic truth of each and every of the matters so recited. Code, s. 1346; R. C, c. 44, s. 11. 1607. Copies of wills in secretary of state's office; proviso. Copies of wills filed or recorded in the office of the secretary of state, attested by the secretary, may be given in evidence in any court, and shall be taken as sufficient proof of the devise of real estate, and are declared good and effectual to pass the estate therein devised : Provided, that no such will may be given in evidence in any court nor taken as sufficient proof of the devise unless a certificate of probate appear thereon. Code, s. 2181; R. C, e. 44, s. 12; 1852, e. 172; 1856-7, e. 22. 1608. Copies of wills recorded in wrong counties. Whereas, by reason .of the uncertainty of the boundary lines of many of the coun- ties of the state, wills have been proved, recorded and registered in the wrong county, whereby titles are insecure ; for remedy whereof : The registry or duly certified copy of the record of any will, duly recorded, may be given in evidence in any of the courts of tliis state. Code, s. 2182; 1858-9, c. 18. 1609. Proved will lost, not recorded, copy evidence. When any will which may have been proved and ordered to be recorded shall have been destroyed during the late war, before it was recorded, a copy of such will, so entitled to be admitted to record, though not certified by any officer, shall, when the court shall be satisfied witli the genuineness thereof, be ordered to be recorded, and shall be received in evidence whenever the original or duly certified exempli- fication would be; and such copies may be proved and admitted t) 1G09 EVIDEXCE— 77. Grants, Deeds, ^Yills. Ch. :]4: record under the same rules, regulations and restrictions as are pre- scribed in the chapter entitled Burnt and Lost Records. Code, s. 2183; 1866-7, c. 127. 1610. Copies of grants in Burke. Copies of grants issued by the state within the county of Burke prior to the destruction of the records of said county by General Stoneman in the year one thousand eight hundred and sixty-five, shall be admitted in evidence in all actions when the same are duly registered ; and when the original grants are lost, destroyed or can not be found after due search, it shall be presumed that the same were duly registered within the time pre- scribed by law, as provided upon the face of original gi-ant. 1901, c. 513. 1611. Copies of lost records in Bladen. Whereas, the most of the records in the office of the clerk of the superior court of l^laden county were damaged by fire, and are in such a mutilated condition that it is impossible to use them, and several of them being of almost daily use, especially the judgment docket and will books: The clerk, of the superior court of Bladen county shall transcribe the judgment docket and index books and the will books in his otHce, and all other books in said oifice containing records made since the year one thousand eight hundred and sixty-eight, and the records so tran- scribed shall have the same force and effect as the original records would have, and shall be received in evidence as the original records and be prima facie evidence of their correctness, and of the siiffi- ciency of their probate, though the probates are lost and arc not transcribed. 189.5, c. 415; 190.3, c. 65. 1612. Copies of records from Tyrrell. Copies of records. of the county of Tyrrell lietween the years one thoxisand seven hundred and thirty-five and one thousand seven hundred and ninety-nine, when copied in a book and certified txi by the clerk of the superior court of Tyrrell county as to the records of his office and by the register of deeds as to the records of his office, and deposited in their respective offices in Washington county, shall be treated in all respects as origi- nal records and received as evidence in all courts of Washington county. 190.3, c. 199. 1613. Copies of grants in Moore. Cojnes of grants for land situ- ated in Moore county and the counties of which Moore was a part, entered in a book, and the book being certified under the seal of the secretary of state, shall have the force and effect of the origi- nals and be evidence in all courts. 1903, c. 214. 490 1(3U EVIDENCE— 77. Chmits, Deeds, Wills. Ch. ?A 1614. Wills in Haywood. All wills recorded by the clerk of the sujieriiii- court of Haywood county, under and by virtue of chapter eight of the laws of one thousand eight hundred and eighty-five, shall be deemed and held to have been duly probated and recorded, subject to the right of any person interested to show by competent proof that said will has never been proved and recorded. 1885, c. 8. 1615. Records in Anson county. The copies of the deeds and deed books and of the wills and will books made in Anson county under the act of March second, one thousand nine hundred and five, shall have the same force and effect as the original deeds and deed books copied and as the original wills and will books copied, and shall take the place of said original deeds and deed books and wills and will books as evidence in all court procedure; and wherever said deed books or will books are ordered or directed to be prodiTced in court by subpoena or other order of court, the copies made under such act shall be pro- duced, iinless the court shall specially order the production of the original books, and the copies so produced in court shall have the same validity and effect and be lased for the same purposes, with the same effect as the original books. 1905, c. 663, s. 3. III. Official WraxiNCiS. 1616. Copies of official writings. Copies of all official bonds, writings, pajiers, or documents, recorded or filed as records in any court, or public office, or lodged in the office of the governor, treas- urer, auditor, secretary of state, attorney general or adjutant gen- eral, shall be as competent evidence as the originals, when certified by the keeper of such records or writings under the seal of his office, when there is such seal, or under his hand when there is no such seal, unless the court shall order the production of the original. Copies of the records of the board of county commissioners shall be evidence when certified by the clerk of the board under his hand and seal of the county. Code, ss. 715, 1342; R. C c. 44, s. 8; 1792, c. 368, s. 11; 1871-2, c. 91; 1868-9, e. 20, s. 21. 1617. Copies from public records of the state or United States, evidence; how authenticated. All copies of bonds, contracts or other papers relating to or connected with the settlement of any account or any part thereof between the United States and an indi- vidual, or extracts therefrom when complete on any one subject, or copies from the books or papers on file, or records of any public .office of the state or the United States, shall be received in evidence 1617 EVIDEXCE— ///. Official Writings. Ch. ?A and entitled to full faith and credit iu any of the courts of this state when certified to by the chief ofiicer in said office or depart- ment to be true copies and authenticated under the seal of said office or department. 1891, c. 501. Note. Pleadings incompetent in criminal prosecutions, see s. 49.'!. IV. Recokds, ktc, Other States. 1618. Records of administration and letters testamentary in other states, how certified. When letters testamentary or of admin- istration on the goods and chattels of any person deceased, being an inhabitant in another state or territory, have been granted, or a return or inventory of the estate has been made, a cojiy of the record of administration or of the letters testamentary, and a copy of an inventory or return of the effects of the deceased, after the same has been gi-anted or made, agreeable to the laws of the state where the same has been done, being properly certified, either according to the act of congress or by the proper officer of the said state or terri- tory, shall be allowed as evidence. Code, s. 134.3; E. C, c. 44, s. 7; 1834, c. 4; U. S. Rev. Stat., ss. 905, 906. 1619. Wills or deeds in other states, how proven. In cases where inhabitants of other states or territories, by will or deed, devise or convey property situated in this state, and the original will or deed can not be obtained for registration in the county where the land lies, or where the jirojierty shall be in dispute, a co])y of said will or deed (after the same has been proved and registered or deposited, agreeable to the laws of the state where the person died or made the same) being proj^erly certified, either according to the act of congress, or by the proper officer of the said state or territory, sliall be read as evidence. Code. s. 1344; R. C, e. 44, s. 9; 1802, c. 623. Note. See also, ss. 3130, 3131. V. COUNSEI. AXD PlIVSICIAXS. 1620. Fraud on the state, counsel must testify; proviso. In cases where fraud upon the state is charged it shall not be a suffi- cient cause to excuse any one from im]>arting any evidence or infor- mation legally required of him, because he came into the possession of such evidence or information by his ]iosition as counsel or attorney before the consumn«atif a special proceeding, a party or a person interested in the event, or a person from, through or under whom such a party or interested person derives his interest or title by assigTiment or otherwise, shall not be examined as a wit- ness in his own behalf or interest, or in behalf of the party suc- ceeding to his title or interest against the executor, administrator or survivor of a deceased person, or the committee of a lunatic, or a person deriving his title or interest from, through or under a deceased person or lunatic, by assignment or otherwise, concerning Roy. Vol. 1—28 407 1631 EVIDENCE— T///. Competency of ^yUnesscs. Cli. 34 a personal transaction or communication between the witness and the deceased person or Innatic ; except where the executor, adminis- trator, survivor, committee or person so deriving title or interest is examined in iiis own behalf, or the testimony of the lunatic or deceased j)erson is given in evidence concerning the same transaction or communication. Code, s. 590; C. C. P., s. 343. 1632. Executors may testify as to estate in their hands, when; proviso. In all actions now pending or which may be hereafter insti- tuted upon judgments rendered before the first day of August, one thousand eight hundred and sixty-eight, or upon any bond or promis- sory note under seal executed in'ior to said date, wherein a reference has been or may be ordered by the court to ascertain the condition or state of the assets belonging to the estate of any deceased debtor in the hands of his administrator or executor, who is or may be defendant in such actions, it shall be competent for the defendant administrator or executor of such deceased debtor to testify and be examined as a witness in his own behalf concerning his adminis- tration upon the estate of his intestate or decedent. When in such cases the defendant administrator or executor shall have testified or been examined as a witness in his own behalf, it shall also be com- petent for the i^laintiff to testify and be examined in the same in regard to such administration. 1885, e. 361. 1633. Party not competent, when. Xo person who is or shall be a party to an action founded on a judgment rendered before the first day of Augiist, one thousand eight hundred and sixty-eight, or on any bond executed prior to said date, or the assignor, endorser or any per- son who has at the time of the trial, or ever has had any interest in such judgment or bond, shall be a competent witness on the trial of such action, but this section shall not apply to the trial of any action commenced before the first day of August, one thousand eight hun- dred and sixty-eight, nor to the trial of any action in which the defend- ant therein relies upon the jilea of ])anuent in fact, or ])leads a coun- terclaim and also introduces himself as a witness to establish the truth of such Jjlea, but in all such cases the rules of evidence as contained in this Revisal shall prevail. Code, s. 580; C. C. P., s. 333: 1879, c. 183; 1883, c. 310, ss. 1, 2. 1634. Defendant competent in criminal actions; husband or wife competent for defendant, in the trial of all indictments, com- plaints or other ])roceedings against persons charged with the com- mission of crimes, offenses and misdemeanors, the person so charged .shall at his own request, but not otherwise, bo a couijietcnt witness, 1634 EVIDENCE— T'///. Competency of Witnesses. Ch. 34 and his failure to make such request shall not create any presump- tion against him. The husband, or wife of the defendant, in all criminal actions or proceedings, shall be a competent witness for the defendant; but the failure of such witness to be examined shall not be used to the prejudice of the defense. But every such person examined as a witness shall be subject to be cross-examined as are other witnesses. Code, s. 1353; 1881, c. 89, s. 3; 1881, c. 110, ss. 2, 3. 1635. Defendant in criminal actions not compellable to give evidence against himself; nor husband or wife against the other. ISTothing in this chapter, except as provided in the preceding sec- tion, shall render any person, who in any criniinal proceeding is charged with the commission of a criminal offense competent, or compellable, to give evidence against himself, nor shall render any person compellable to answer any question tending to criminate him- self, nor shall in any criminal proceeding render any husband com- petent or compellable to give evidence against his wife, nor any wife competent or compellable to give evidence against her husband : Pro- vided, that in all criminal prosecutions of a husband for an assault and battery ui^on the person of his wife, or for abandoning his wife, or for neglecting to provide for her support, it shall be lawful to examine the wife in behalf of the state against the said husband. Code, s. 1354; 1856-7, c. 23; 1866, c. 43, s. 3; 1868-9, c. 209, s. 4. 1636. Husband and wife witnesses. In any trial or inquiry in any suit, action or proceeding in any court, or before any j^erson having, by law or consent of parties, authority to examine witnesses or hear evidence, the husband or wife of any party thereto, or of any person in whose behalf any such suit, action or proceeding is brought, prosecuted, opposed or defended, shall, except as herein stated, be competent and compellable to give evidence, as any other witness on behalf of any party to such suit, action or proceed- ing. Nothing herein shall render any husband or wife competent or compellable to give evidence for or against the other, in any crimi- nal action or proceeding (except to prove the fact of marriage in case of bigamy), or in any action or proceeding in consequence of adultery, or in any action or proceeding for divorce on account of adultery (except to prove the fact of marriage), or in any action or proceeding for or on account of criminal conversation. No hus- band or wife shall lie compellable to disclose any confidential coni- nmnication made by one to the other dviring their marriage. Code, s. 588; C. C. P., s. 341; 1860, c. 40, s. 2." 1637. Persons testifying in gambling not prosecuted. No per- son shall be excused, on any ]ir(isecution, from testifying touching 1637 EVIDEXCE — VIII. Competency of 'Witnesses. Ch. 3-i any unlawful gaming dine by himself (jr utliers ; but no discovery, made by the witness upon such examination, shall be used against him, in any penal or criminal prosecution, and he shall be altogether pardoned of the offense so done, or participated in by liim. Code, s. 1215; R. C, c. 35, s. 50. Xote. See s. 1688. 1638. Lynching, witness must testify; pardoned. In all investi- gations before a justice of the jieaee, ciir.iner, judge, grand jury, or courts and jury, on the trial of a cause for lynching, no ]ierson shall be excused from testifying touching his knowledge or infor- mation in regard to the offense being investigated, upon the ground that his answer might tend to subject him to prosecution, pains or penalties, or that his evidence might tend to criminate himself, but no discovery made by such witness vipon any such examination shall be used against him in any coiirt or in any penal or criminal prose- cution, and he shall when so examined as a witness for the state be altogether pardoned of any and all participation in any crime of lynching concerning which he is required to testify. 1893, c. 461, s. 5. IX. Attendance of Witness. 1639. How procured. In obtaining the testimony of witnesses in causes depending in the superior, criminal and inferior courts, the following rules shall be observed in practice, to-wit: In suits where witnesses are to ajipear at any court, the clerk at the instance of a party shall issiie a subpoena, directed to the sheriff or other officer of the county where such witnesses reside, naming the time and place for their apj^earance, the names of the parties to the suit wherein the testimony is to be given, and the party at whose instance they are summoned. Every subpnena made returnable immediately, shall be issued only in term time, and shall be personally served on the witness therein named. A copy of every subpoena issued by the clerk in vacation, in case any wit- ness therein named is not to be found, may be left at his usual place of residence ; and such copy certified by the sheriff or other officer, and left as aforesaid, shall be deemed a legal summons, and the person therein named shall be bound to api^car in tlie same manner as if personally summoned. Code, s. 1355; R. C, c. 31, s. 59; 1777, c. 115, s. 36. Note. For subptena issued by party or attorney, see s. 884. 1640. How procured before jury of view, referee or commis- sioners. In all cases not otherwise jirdvided for, when witnesses are renuired to attend anv cnurt, (Mininiissicin, referee, order of sur- KUO EVTDEXCE— /A'. Attendance of ]yifness. Cb. 34 vey, or jury of view, a siTiumons shall be issued by the clerk of the court, at the request of either party, naming the day and place when and where they are to appear, the names of the parties to the suit, and in whose behalf summoned. Code, s. 1366; R. C, e. 31, s. 68; 1805, c. 685, ss. 1, 2. 1641. When subpoena duces tecum may issue. In all causes depending in any court, in which the production of an original paper, lodged in any of the public offices of the state, or in any office of any court, shall become necessary, the court may issue the process of subpoena duces tecum, requiring such persons who hold said offices to attend the court with such original paper, in like man- ner and under the san'ie penalties as witnesses are required in cases of subposna to testify. Code, s. 1372; K. C, c. 31, s. 81; 1797, c. 476. 1642. Cause removed, subpoenas and commissions to take depositions issued from either county. When any cause shall be renioA'ed from the superior court of one county to that of. another, after the order of removal, depositions may be taken in the cause, and subpoenas for the attendance of witnesses and commissions to take depositions may issue from either of the said courts, under the same rules as if the cause had been originally commenced in the court from which the subpoenas or commissions issued. Code, s. 1371; R. C, c. 31, s. 72; 1810, c. 787; 1832, c. 8. 1643. Witness to attend until discharged; penalty nonattend- ance, how paid; judgment nisi only. Every witness, being sum- moned to ajjpear in any of the said courts, in manner before directed, shall appear accordingly, and continue to attend from term to term until discharged, when summoned in a civil action or special proceed- ing, by the court or the party at whose instance such witness shall be summoned, or when summoned in a criminal prosecution, until dis- charged by the court, the prosecuting otBcer, or the party at whose instance he was summoned ; and in default thereof shall forfeit and pay, in civil actions or special proceedings, to the party at whose instance the subpoena issued, the sum of forty dollars, to be recovered by motion in the cause, and shall be further liable to his action for the full damages which may be sustained for the want of such wit- ness's testimony ; or if summoned in a criminal prosecution shall for- feit and pay eighty dollars for the use of the state, or the party sum- moning him: Provided, that if the civil action or special proceeding shall, in the vacation, be compromised and settled between the par- ties, and the party at whose instance such witness was summoned should omit to discharge him from further attendance, and for want Ifi43 EVIDEXCE— 7.Y. Attendance of Witness. Ch. .'U of such discharge, he shall attend the next term, in that case the wit- ness, upon oath made of the facts, shall be entitled to a ticket from the clerk in the same manner as other witnesses, and shall recover from the party, at whose instance he was summoned, the allowance which is given to witnesses for their attendance, with costs: Provided further, that no execution shall issue against any defaulting witness for the forfeiture aforesaid, but after notice made known to him to show cause against the issuing thereof; and if sufficient cause be shown of his incapacity to attend, execution shall not issue, and the witness shall be discharged of the forfeiture without costs; but other- wise the court shall, on motion, award execution for the forfeiture against the defaiilting witness. Code, s. 1356; R. C, c. 31, ss. 60, 61, 62; 177", c. 115, ss. 37, 38, 43: 1799. e. 528; 1801, c. 591. 1644. Not arrested in civil cases while attending court. Every ■witness sluill be exempt from arrest in civil actions or special pro- ceedings during his attendance at any court, or before a commissioner, arbitrator, referee or other person authorized to command the attend- ance of such witness, and during the time such witness is going to and returning from the place of such attendance, allowing one day for every thirty miles siich witness has to travel to and from his place of residence. Code, s. 1367; R. C, c. 31, s. 70; 1777, c. 115, s. 44. X. Depositions. 1645. What may be read on the trial. Every deposition taken and returned as prescribed in section one thousand six hnndred and fifty-two may be read on the trial of the action or proceeding, or before any referee, in the following cases, and not otherwise: 1. If the witness is dead, fir has become insane since the depositins a]i|i(iiiitiMl hv tlit' courts of this state, or by the courts of the states or territories of the Ignited States, arbitratoi-s, referees, and all persons acting under a commission issuing from any court of record in this state, are hereby empowered, they or the clerks of the courts res])eetively in this state, to which such commission shall be returnable, to issue subpoenas, specifying the time and place for the attendance of wit- nesses before them, and to administer oaths to said witnesses, to the end that they may give their testimony. And any witness, appear- ing before any of the said persons, and refusing to give his testimony on oath touching such matters as he may be lawfully examined unto, shall be committed, by warrant of the person before whom he shall so refuse, to the common jail of the county, there to remain \uitil he may be willing to give his evidence; whicli warrant of connnitment shall recite what authority the person has to take the testimony of such witness, and the refusal of the witness to give it. Code, s. 1362; R. C. c. 31, s. 64; 1777, c. 115, s. 42; 1805, c. 685, ss. 1, 2; 1848, c. 66; 1850, c. 188. 1650. Attendance before commissioner, how enforced. The sheriff of the county where the witness may be, sliall execute all such subpcenas, and make due retTirn thereof before the commis- sioner, or other person, before whom the witness is to appear, in the same manner, and under the same penalties, as in case of pro- cess of a like kind returnable to court; and when the witness shall be subpoenaed five days before the time of his required attendance, and shall fail to appear according to the subpoena and give e's'idence, the default shall be noted by the commissioner, arbitrator, or other per- son aforesaid ; and in case the default be made before a commis- sioner acting under authority from courts without the state, the defaulting witness shall forfeit and pay to the party at whose instance he may be subpoenaed fifty dollars, and on the ti-ial for such penalty', the subpoena issiaed by the commissioner, or other person, as aforesaid, with the indorsement thereon of due seiwice by the officer sei'ving the same, together witli the default noted as afore- said and indorsed on the subpoena, shall \w ]H'inia facie evidence of the forfeiture, and suflicicnt to entitle tlie iilaiutitf to judgnnent for the same, unless the witness may shdW his ineaiiaeity In liave attended. Code, s. UC,?,: R. C, c. .31, s. C5 ; 1848, c. 06, s. 2; 1850. e. 188, ss. 1, 2. 1651. Remedies against defaulting witness before commis- sioner, lint in case the default he nindc^ lietore a eoiiiniissiiiner, arbilraliir, referee nr otlier ]>erson, acting under a (•(nuuiissidn or anlliiirifv fniui anv of the courts of tin's slate, then the same sliall 1651 EVIDEi^CE— X. DejwsUions. Ch. 34 lie certified imder his hand, and i-eturned with the subpoena to the court by which he was corainissioned or empowered to talie the evi- dence of such witness; and thereupon the court shall adjudge the defaulting witness to pay to the party at whose instance he was summoned, the sum of forty dollars ; but execution shall not issue therefor until the same be ordered by the court, after such proceed- ings had as shall give said witness an opportunity to show cause, if he can, against the issuing thereof. Code, s. 1364; R. C, c. 31, s. 60; 1850, c. 188, s. 2. 1652. How taken. Any party in a civil action or special pro- ceeding may take the depositions of persons whose evidence he may desire to use, without any special order therefor, unless the witness shall be beyond the limits of the United States. Written notice of the time and place of taking a deposition, specifying the name of the witness, must be served by the party at whose instance it is taken upon the adverse party or his attorney. The time for serving such notice shall be as follows: Three entire days when the party notified resides within ten miles of the place where the deposition is to be taken ; in other cases, where the party notified resides in the state, one day more for every additional twenty miles, except where the deposition is to be taken within ten miles of a railway in running operation in the state, when one day only shall be given for everj' hundred miles of railway to the place where the deposition is to be taken. When a deposition is to be taken beyond the state, ten days' notice of the taking thereof shall be given, when the party whose deposition is to be taken resides within ten miles of a railway con- necting with a line of railway within twenty miles of the place where the person notified resides. In other cases, where there are no railways running as above specified, twenty days' notice shall be given. When objection is taken to the reading of any such deposi- tion, upon the gTOund that there are no railways or connecting rail- ways to and from the points specified in this section, or that the notice given had otherwise been actually insufficient, it shall devolve \ipon the party objecting to satisfy the court of the truth of his alle- gation. Depositions shall be taken on commission, issuing from the court and under the seal thereof, by one or more commissioners, who shall be of kin to neither party, and shall be appointed by the clerk. Depositions shall be subscribed and sealed up by the commissioners, and returned to the court, the clerk whereof or the judge holding the court, if the clerk is a party to the action, shall open and jiass upon the same, after having first given the parties or their attorneys not less than one day's notice ; and all such depositions, Avhen passed upon and allowed by the clerk, without appeal, or by the judge upon appeal from the clerk's order, or by the judge holding the court. 1652 EVIDENCE— X. Depositions. Ch. 34 when the clerk is a party to the action, shall be deemed legal evi- dence, if the witness be competent. In all criminal actions jjcndina- before the superior court it shall be lawful for the defendant in any such action to make aitidavit before the clerk of the superior court in which said action is pending that it is important for the defense that he have the testimony of any person or persons, whose names must be given, and that such person or persons are so infirm, or otherwise physically incapacitated, or nonresident of this state, that he can not procure their attendance at court. Upon the filing of said affidavit it shall be the duty of the clerk to appoint some re,sjx)nsible person to take the deposition of said person, which deposition may be read in the trial of said criminal action under the same rules as now apply by law to depositions in civil actions: Provided, that the solicitor of the district in which said suit is pending have ten days' notice of the taking of said deposition, who may appear in person or by a representative to conduct the cross-examination of such witness. Code, s. 1357; 1893, cc. 80, 360; 1891, c. 522; R. C, c. 31, s. 63; 1881, c. 279. 1653. How taken in hearings before municipal authorities. Any board of aldermen, board of town or county eummissioners or any person interested in any proceeding, investigation, hearing or trial before such board, may take the depositions of all ]3ersons whose evidence may be desired for use in said proceeding, investigation, hearing or trial ; and to do so, the chairman of such board or such person may apply in person or by attorney to the saijierior court clerk of that county in which such proceeding, investigation, hearing or trial is pending for a commission to take the same, and said clerk, upon such application, shall issue such commission ; and the notice and proceedings upon the taking of said depositions shall be the same as provided for in civil actions : and if the person upon whom the notice of the taking of such dejiosition is to be served is absent from or can not after due diligence be found within this state, but can be found within the county in which the deposition is to be taken, then, and in that case, said notice shall be personally served on such person by the commissioner appointed to take such deposition ; and ^fhen any such deposition is returned to the clerk it shall be opened and passed upon by him and delivered to such board, and the reading and using of such deposition shall conform to the rules of the superior court. 1889, c. 151. 1654. In quo warranto proceedings, how taken, in all cases now ]>ending or hereafter to be brought in any county of this state for the purpose of trying the title to the office of clerk of the supo- 1654 EVIDENCE— X. Depositions. Ch. 34 rior court, register of deeds, coiinty treasurer or sheriff of any county, it shall be competent and lawful to take the deposition of witnesses before a conunissioner or commissioners to be appointed by the judge of the district wherein the case is to be tried, or the judge holding the court of said district, or the clerk of the court wherein the case is pending, under the same rules as to time of notice and as to the manner of taking and filing the same as is now provided by law for the taking of depositions in other cases ; and such deposi- tions, when so taken, shall be competent to be read on the trial of such action, withoiit regard to the place of residence of such witness or distance of residence from said place of trial: Provided, that the provisions of this section shall not be construed to prevent the oral examination of such witnesses by either party on the trial as they may summon in their behalf. 1889, c. 428. 1655. Taken in the state, action in another state. In addition to the other remedies prescribed by law, a party to an action, suit or special proceeding, civil or criminal, pending in a court without the state, either in the United States or any of the possessions thereof, , or any foreign country, may obtain by the proceedings prescribed by this section, the testimony of a witness and in connection there- with the production of books and papers within the state to be used in the action, suit or special proceedings. Where a commis- sion to take testimony within the state has been issued from the court in which the action, suit or special proceeding is pending, or where a notice has been given, or any other proceeding has been taken for the purpose of taking the testimony within the state pur- suant to the laws of the state or coTmtry wherein the court is located or pursuant to the laws of the United States or any of the possessions thereof, if it is a court of the United States, any justice of the supreme court or judge of the superior court shall, in a proper case, on the presentation of a verified petition, issue a subpa?na to the wit- ness, commanding him to ap])ear before the conunissioner named in the commission, or before a conunissioner within the state, for the state, territory or foreign countiw in which the notice was given or the proceeding taken, or before the officer desigliated in the com- mission, notice or other paper by his title or office, at a time and place specified in the subptpna, to testify in the action, suit or special proceeding. If the witness shall fail to obey the subpoena, or refuse to have an oath administered, or to testify or to produce a book or paper pursuant to a subpoena, or to subscribe his deposition, the jus- tice or jiidge issuing the subpoena shall, if it is determined that a contempt has been committed, pi-escribe punishment as in case of a recalcitrant witness. The petition jircscribed l>y this section 1655 EVIDEXCE— X. Depositions. Ch. 34 must state generally the nature of the action or proceeding in which the testimony is sought to be taken, and that the testimony of the witness is material to the issue presented in such action or IJroceeding, and shall set forth the substance of or have annexed thereto a copy of the commission, order, notice, consent or other authority under which the deposition is taken. In case of an appli- cation for a subpoena to compel the production of books or papers, the isetition shall specify the particular books or pajjers, the jjroduc- tion of which is sought, and show that such books or papers are in the jiossession of or under control of the witness and are material ui^on the issues presented in the action or special proceeding in whicli the deposition of the witness is sought to be taken. Unless the jus- tice or judge is satisfied that the application is made in good faith to obtain testimony within the provisions of this section, he shall deny the application. Where the subpojna directs the production of books or papers, it shall specify the particular books or papers to be produced, and shall specify whether the witness is required to deliver sworn copies of such books or papers to the commissioner or to produce the original thereof for inspection, but said books and original papers shall not be taken from the witness. This sub- poena must be served upon the witness at least two days, or, in case of a subpoena requiring the production of books or papers, at least five days before the day on which the witness shall be commanded to appear. A party to an action or proceeding in which a deposi- tion is sought to be taken, or a witness subpoenaed to attend and give his testimony, may apply to the court issuing said subpoena to vacate or modify such subpoena. Upon proof by atfidavit that a person to whom a subpirna was issued has failed or refused to obey such subpoena, to be duly sworn or affirmed, to testify or answer a question or questions propounded to him, to produce a book or paper which he has been subpoenaed to produce, or to subscribe to his depo- sition when correctly taken down, the said justice or judge shall grant an order requiring such person to show cause before him, at a time and place specified, why he should not appear, be sworn or affirmed, testify, answer a question or questions propoimded, pro- duce a book or paper, or subscribe to the deposition, as the case may be. Such affidavit shall also set forth the nature of the action or special proceeding in which the testimony is sought to be taken, and a copy of the pleadings or other papers defining the issues in such action or s]iecial proceeding, or the facts to be jjroved therein. Upon the return of such order to show cause, the said justice or judge, as the case may be, shall, upon such affidavit and upon the original peti- tion and upon such other facts as shall appear, determine whctlier such persons should be required to appear, be sworn or affirmed, testify, answer the question or questions prop()un liable to l>uikl or keep up a ]iart of anv division fence, shall fail ai any time to do so, the owner of the adjoining land, after notice, may bnild or repair the whole, and recover of the delinquent one-half of the cost before any court having jurisdiction. Code, s. 2807; 1868-9, c. 275, s. 7. 1671. How removed. If any owner of land liable to contribute for the keeping up of a division fence, shall determine neither \<< cultivate his land nor permit his stock to run thereon, he may give the adjoining owner three months' notice of his determination; and in that case, at any time after the expiration of such notice, and between the first day of January- and the first day of ]\Iarch, but at no other time, he may remove the half of the fence kept up by him- self, and shall be no longer liable to keep \ip the same. Code, s. 2802; 1903, c. 20; 1868-9, c. 275, s. 8; 1883, c. 111. Note. Removal of joint fence a misdemeanor, see s. 3412. III. Stock Law. 1672. County elections. Upon the written application of one- fifth of the qiuilificd voters of any county made to the board of com- missioners thereof, it shall be the duty of said commissioners fi'om time to time to submit the question of "stflck law"' or "no stock law" to the qualified voters of said coxmty. And if at any such elec- tion a majority of the votes cast shall be in favor of said stock law, then the provisions of this chapter relating to the stock law shall be in force over the whole of said county. Code, s. 2812. 1673. Townstlip elections. Upon the written application of one- fifth of the qualified voters in any township, made to the board of commissioners of the county wherein said township is situated, it shall be the duty of said commissioners to submit the question of "stock law" or "no stock law" to the qualified voters of said town- ship; and if at any such township electiou a majority of the votes cast shall be in favor of "stock law," then the said stock law shall be in force in said to\\'nship. Code, s. 2813. 1674. District elections. Upon the written application of one- fifth of the qualified voters of any district or territtn-y, whether the boundaries of said district follow township lines or not, made to the board of cotmty commissioners at any time, and .setting forth well- dclincd Iwiindarics of said district, it shall be the dntv of ihe said 1074 FENCES AND STOCK LAW—///. Stock Law. Ch. 35 commissioners to submit the question of "stock law" or "no stock law" to the qualified voters of said district, and if at any such elec- tion a majority of the votes cast shall be in favor of "stock law," then the said stock law shall be in force over the whole of said district. Code, s. 2814. 1675. Persons within territory allowed to withdraw. Upon the written application of a majority of the qualified voters in any dis- trict, territory or well-defined boundary, made to the board of county commissioners, at any time, setting forth that the citizens of said district, territory or boundary are within the stock law boundary, and are desirous of being released from the laws governing said stock law territory, it shall be the duty of said commissioners to submit the question of ''no stock law" or "stock law" to the qualified voters of said district or territory, and if at any such election a majority of the votes cast shall be against stock law, then the said district or territory shall be released and free from the operation of the stock law : Provided, the expense incurred in changing the fence in s\ich boundary, district or ten-itory so released be paid by the property holders in such boundary, district or territory, and that the commis- sioners of the county levy the tax to pay the same on the property holders of such boi;ndary, district or territory so released, but they shall not be further liable for keeping up said stock law fence: Pro- vided, that in any territory where stock law noAV prevails no election against stock law shall be held in less than two years from the date of the election adopting stock law in said territory: Provided fur- ther, that if "no stack law" shoidd carry, it shall not take eifect until six months from the date of its ratification: Provided still fur- ther, that neither "stock law" or "no stock law" shall take efl:'ect during crop season. This section shall apply only to the counties of Jackson, Graham, Swain, Clay, Macon, Cherokee and Randolph. 1895, c. 35; 1897, cc. 461, 516; 1903, c. 60. 1676. Elections, how held. Every election under this chapter shall be held and conducted under the same rules and regulations and according to the same penalties provided by law for the election of members of the general assembly : Provided, no such county, town- ship or district election shall be held oftener than once in any one year, although the boundaries of such district may not be the same. Code, s. 2815. 1677. Powers and duties of commissioners. The board of com- missioners of the county may ]irovide f(jr a new registration of voters, designate places for holding elections, and make all regula- tions, and do all other things necessary to carry into effect the pro- visions of this chapter relating to the stock law. Code, s. 2826. 515 1678 FENCES AXD STOCK LAW— 777. Stock- Law. Cb. 35 1678. Land adjoining stock law territory. Any person, or any number of perscnis, (iwniiig hind in a ennuty, district or township, which shall not adopt the stock law, or adjoining any county, town- ship or district where a stock law prevails, may have his or their lands enclosed within any fence b\iilt in pursuance of this chap- ter. All such adjacent lands, when so enclosed, shall be subject to all the provisions of law with respect to live stock running at large within the original district so enclosed, as if it were a part of the township, county ,or district with which it is hereby authorized to be enclosed. Any number of land owners, whose lands are contigu- ous, may at any time build a common fence around all their lands, with gates across all public highways ; and no live stock shall run at large within any such enclosure, under the pains and penalties pre- scribed in this chapter. Code, s. 2821. Note. See Crimes, s. 3319. 1679. Stock not to run at large, impounded. Any person nun- take up any live stock running at large within any township or dis- trict wherein the stock law shall be in force and impound the same ; and such impounder may demand fifty cents for each animal so taken up, and twenty-five cents for each animal for every day sucli stock is kept impounded, and may retain the same, with the right to use it under proper care until all legal charges for impounding said stock and for damages caused by the same are paid, said damages to be ascertained by two disinterested freeholders, to be selected by the owner and said impounder, said freeholders to select an umpire, if they can not agree, and their decision to be final. Code, s. 2816. 1680. Owner notified; sale of stock; application of proceeds. If the owner of said stock be known to such impounder he shall imme- diately inform such owner where his stock is inipoiiiuled, and if said owner shall for two days after such notice wilfully refuse or neg- lect to redeem his stock, then the impounder, after ten days' written notice posted at three or more public places within the township where said stock is impounded, and describing the said stock and stating place, day and hour of sale, or if the owner be unknown, after twenty days' notice in the same manner, and also at the court- house door, .shall sell the stock at piiblic auction, and apply the pro- ceeds in accordance with the preceding and succeeding sections, and the balance he shall turn over to the owner if known; and if the owner be not known, to the coimty commissioners for the use of tlie school fund of the district wherein said stock was taken up and impounded, subject in their hands for si.x months to the call of the legally entitled owner. Code, s. 2817. 516 1681 FENCES AND STOCK LAW—///. Stock Law. Ch. 35 1681. Stock defined. The word "stock" in this chapter shall be construed to mean horses, mules, colts, cows, calves, sheep, goats, jen- nets, and all neat cattle, swine and geese. Code, s. 2822. 1682. Impounded stock may be fed; pay for same. In case any animal shall be at any time impounded as aforesaid, and shall con- tinue to be without necessary food and water for more than twelve successive hours, it shall be lawful for any jDcrson from time to time, and as often as it shall be necessary, to enter into and upon any such pound or other place, in which any animal shall be so confined, and to supply it with necessary food and water so long as it shall remain so confined. Such person shall not be liable to any action for such entry, and the reasonable cost of such food and water may be collected by him of the owner of such animal. Code, s. 2485; 1881, c. 368, s. 4. 1683. Fence built around territory. The stock law authorized by this chapter shall not be enforced until a fence shall have been erected around any territory proposed to be enclosed, with gates on all the public roads passing into and going out of said territory : Provided, all streams which are or may be declared to be lawful fences shall be sufficient boundaries, in lieu of fences : Provided fur- ther, no fence shall be erected along the boundary lines of any county, township or district where a stock law prevails. Code, s. 2823. 1 684. Lawful fence in stock law territory. In any county in the state in which or in any jturtion sold and dtdivered was not actually delivered at the time of making the agreement to sell and deliver, and that one of the parties to such agi-eenieut deposited or secured, or agreed to deposit or secure, what are couuuonly called "margins," shall constitute prima facie evidence of a contract declared void by the preceding section. 1889, e. 221, s. 2; 1905, c. 538, ss. 5, 7. 1691. invalidity pleaded shifts burden of proof; plea and proof not used in criminal action. ^Vhcn the defendant in any action pending in any court shall allege specitically in his answer that the cause of action alleged in the complaint is in fact founded upon a contract such as is by this chapter made void, and such answer shall be verified, then the burden shall be vipon the plaintiff in such action to prove by the proper evidence, other than any written evidence thereof, that the contract svied upon is a lawful one in its nature and purposes ; and the defendant may likewise pi-oduce evidence to prove the contrary: Provided, nevertheless, that any allegation or state- ment of fact made in any pleading in any such action, or the evi- dence produced on the trial in any such action, shall not be evidence against the party making or prodiicing the same in any criminal action against such party. 1889, e. 221, s. 2. Note. For punishment for dealing in futures, see ss, 3823-3826. 1092 GEAXTS— 7. To Mliom Issued. Ch. CHAPTER 37. GRANTS. Sections. I. To whom issued, 1692 II. What may be granted, ' 1693—1699 III. Entiv-taker, 1700—1706 IV. Entries, 1707—1712 V. Surveys, 1713—1726 VI. Grants, 1727—1735 VII. Correcting, 1736—1747 VIII. Vacated, 1748—1750 IX. Phosphate beds, 1751—1757 I. To Whom Issued. 1692. Citizens and bona fide residents. Any citizen of this state, and all persons wIkj have or shall come into the state with the bona fide intent of becoming residents and citizens thereof, shall have the right and privilege of making entries of, and obtaining grants for, vacant and imappropriated lands. Code, s. 2754; 1869-70, c. 19, s. 1. II. What May be Granted. 1693. Land subject to. All vacant and unappropriated lands, belonging to the .state, shall be subject to entry by any citizen thereof, in the manner hereinafter provided, except — 1. Lands covered by navigable waters. 2. Lands covered by the waters of any lake, or which, though now covered, may hereafter be gained therefrom by the recession, draining, or diminution of such waters, or have been so gained here- tofore, and not lawfully entered. 3. Marsh or .swamp land, where the quantity of land in any one marsh or swamp exceeds two thousand acres, or where, if of less quantity, the same has been surveyed by the state, or by the state board of education, with a view to draining and reclaiming the same. Code, s. 2751; E. C, c. 42, s. 1; 1854-5, c. 21. 1694. What swamp lands may be. Marsh or swamp lands, lying ill a swamp where the quantity of land in that swamp or marsh does not in the whole swamji or marsh exceed two thousand acres, and 521 1G94 GRAXTS— //. ]Vh(if Ma;/ he Granted. Ch. 37 which has not been surveyed by the state or state board of education, and marsh or swamp lands, nnsurveyed as aforesaid, not exceeding fifty acres in one body, though lying within a marsh or swamp of a greater number of acres than two thousand, may be entered, when the same shall be situated altogether between the lines of tracts here- tofore granted. Code, s. 2751; R. C, c. 42, s. 1; 1854-5, c. 21. 1695. Swamp lands defined. The words "marsh and swamp land" wherever employed in this chapter, and the words "swamp lands" employed in the statutes creating the literary fund and liter- ary board of Xorth Carolina and the state board of education of North Carolina, or in any act in relation thereto, shall be construed to include all those lands which have been or may now be kno^vn and called "swamp" or "marsh" lands, "pocosin bay," "briary bay" and "savanna," and all lands which may be covered by the waters of any lake or pond. 1891, c. 302. 1696. Land covered by water, for wharves. Persoms owning lands on any navigable sound, river, creek or arm of the sea, for the purpose of erecting wharves on the side of the deep waters thereof, next to their lands, may make entries of the lands covered by water, adjacent to their own, as far as the deep water of such sound, river, creek, or arm of the sea, and obtain title as in other cases. But persons making such entries shall be confined to straight lines, including only the fronts of their own tracts, and shall in no respect obstruct or impair navigation. When any such entry shall be made in front of the lands in any incorporated to^^•n, the town corporation shall regulate the line on deep water, to which wharves may be built. This shall not affect existing rights. For all lands thus entered there shall be paid into the treasui-y not less than one dollar per acre. AVhen any person shall have erected a wharf on public lands of the description aforesaid, before the first day of January, one thousand nine hundred and three, such person shall have liberty to enter said land, including his wharf, under the restrictions and upon the terms above set forth: Provided, no land covered by water shall be subject to entry within thirty feet of any wharf, pier or stand used as a wharf already in existence, or which may hereafter be erected by any person on his own land or land under his control, or on an extended line thereof; but land covered by water as aforesaid for the space of thirty feet from the landing place or line of any wharf, pier or stand used as a wharf, as afore- said, shall remain open for the free ingress and egress of said owner and other persons to and from said wharf, pier or stand : Provided l(;!l(3 GRAFTS— 11. What Maij he Granted. Ch. 37 further, no person shall be allowed to enter and obtain a grant for ;iny land in the waters of Onslow county, in which the tide ebbs and tlows, within thirty feet of the shore at low-water mark, unless the tiiterer shall be the owner of the adjacent shore. Code, s. 2751; R. C, c. 42, s. 1; 1854-5, c. 21; 1889, c. 555; 1893. c. 17; 1893, c. 4; 1893, e. 349; 1901, c. 364; 1891, c. 532. 1697. Fisheries established. Whenever any person shall acquire title to lands covered by navigable water as required by law for wharves, the owner or person so acquiring title shall have the right to establish fisheries upon said lands ; but this right shall not author- ize any person to obstruct navigation. Code, s. 2752; 1874-5, c. 183, ss. 1, 6. T698. Prior right of fishery in whom. \Yhenever the o%\Tiers of lands covered by navigable waters shall improve the same by clear- ing oif and cutting therefrom logs, roots, stumps or other obstructions, so that the said land may be used for the purpose of drawing or hauling nets or seines thereon for the purpose of taking or catching fish, then and in that case the ])erson who makes or causes to be made the said improvements, his heirs and assigiis, shall have prior right to the use of the land so improved, in drawing, hauling, drift- ing or setting nets or seines thereon, and it shall be unlawful for any person, without the consent of such owner, to draw or haul nets or seines upon the land so improved by the owner thereof for the pur- pose of drawing or hauling nets or seines thereon. This section shall apply where the owner of sTich lands shall erect, or shall have erected, platforms or structures of any kind thereon to be used in fishing with nets and seines. Code, s. 2753; 1874-5, c. 183, ss. 2, 3, 4. 1699. What void; not color of title. Every entry made, and every grant issued, for any lands not authorized by this chapter to be entered or granted, shall be void ; and every grant of land made since the sixth day of March, one thousand eight hundred and ninety- three, in pursuance of the statutes regulating entries and gTants shall, if such land or any portion thereof has been heretofore granted by this state, so far as relates to any such land heretofore granted, be absolutely void for all purposes whatever, shall confer no rights whatever upon the grantee or grantees therein or those claiming under such grantee or grantees, and shall in no case and under no circumstances constitute any color of title whatsoever to any person Avhomsoever. Code, s. 2755; 1893, c. 490; R. C, c. 42, s. 2. 1700 GEANTS— 7/7. Entry-tal-er. Cli. 37 III. EXTKY-TAKER. 1700. How elected; term of office. The board of commissioners of the several enunties slinll elect one person to receive entries of claims for lands within each county; and such entry-taker shall hold his office for four years. Code, s. '2756. 1701. Register of deeds acts as, when. When a vacancy exists in the office of entry-taker, the register of deeds shall act as entry- taker until such vacancy is filled by an election by the commissioners. The register of deeds, in such case, shall take charge of the books belonging to the office, shall discharge all the duties and receive the emoluments, and shall be subject to the rules, regulations and penal- ties prescribed for entry-takers. Code, s. 2757; 1868-9, c. 100, s. 2; 1868-9, c. 173, s. 2. 1 702. Who issues warrant on death of entry-taker. In all cases where an entry shall be made, and the entry-taker shall die or resign before a warrant shall be issued thereupon, his successor shall issue a warrant. Code, s. 2772; R. C, c. 42, s. 15; 1835, c. 19. 1703. Oath of office; fees. The entry-taker shall take the oath of office and receive the fees, and no other, prescribed in the chapters respectively entitled Oaths and Salaries and Fees. Code, s. 2760; 1868-9, c. 173, s. 5. 1704. Office of entry-talv floats shall be paid to the clerk of the superior court, who shall issue the license. All such license taxes shall be by the clerk of the superior court paid over to the treasurer of the county for the benefit tcr but in cases of such pennanent and continued insanity, as that the nonsane person shall 1907 IDIOTS, ETC.— 777. Surplus Income. Ch. 41 be judged by tbe clerk to be incapable, notwithstanding any lucid intervals, to make advancements with prudence and discretion. Code, s. 1G84; R. C, c. 57, s. 16. 1908. Decree suspended when sane. Upon such insane person being restored to sanity, every order made for advancements shall cease to be further executed, and his estate shall be discharged of the same. Code, s. 1685; R. C, e. 57, s. 17. Note. For powers, duties and liabilities of guardian, see ss. 1786-1797. Sue by guardian or next friend, see ss. 405-407. CHAPTER 42. INNKEEPERS. (Sections 1909—1914.) 1909. Must furnish accommodations. Every innkeeper shall at all times provide suitable food, rooms, beds and bedding for strangers and travelers whom he may accept as gTiests in his inn or hotel. 1903, c. 563. 1910. Liability for loss of baggage. Innlteepers shall not be liable for loss, damage or destruction of the baggage or property of their guests except in case such loss, damage, or destruction results from the failure of the innkeeper to exercise ordinary, proper and reasonable care in the custody of such baggage and property, and in case of such loss, damage or destruction resulting from tlie negligence and want of care of the said innkeeper he shall be liable to the owner of the said baggage and profierty to an amount not exceeding- one hundred dollars : Provided, however, any guest may at any time before a loss, damage or destruction of his property notify the inn- keeper in writing that his property exceeds in value the said sum of one hundred dollars, and shall upon demand of the innkeeper furnish him a list or schedule of the same, with the value thereof, in which case the innkeeper shall be liable for the loss, damage or destruction of said property because of any negligence on his part for the full value of the same : Provided further, that proof of the loss of any such baggage, except in case of damage or destruction by fire, shall be prima facie evidence of the negligence of said hotel or innkeeper. 1903, c. 56.3, s. 2. 581 1911 INNKEEPERS. Cb. 42 1911. Safe-keeping of valuables, it shall be tbe duty of inn- keepers, upon the recpicst of any guest, to receive from said guest and safely keep money, jewelry and valuables to an amount not exceeding five hundred dollars ; and no innkeeper shall be required to receive and take care of any money, jewelry or other valuables to a greater amount than five Imndred dollars: Provided, the receipt given by said innkeeper to said guest shall have plainly printed upon it a copy of this section. No innkeeper shall be liable for the loss, damage or destruction of any money or jewels not so de- posited. 190.% c. 563, s. 3. 1912. Loss by fire. No innkeeper shall be liable for loss, dam- age or destruction of any baggage or property caused by fire not resulting from the negligence of the innkecjier or by any other force over which the innkeeper had no control : Provided, that nothing herein contained shall enlarge the limit of the amount to which the innlvceper shall be liable as provided in preceding sections. 1903, c. 563, s. 4. 1913. Copies of this chapter posted. Every innkeeper shall keep posted in every room of his house occupied by guests, and in the office, a j^rinted copy of this chapter and of all regulations relat- ing to the conduct of guests. This chapter shall not apply to inn- keepers, or their guests, where the innkeeper fails to keep such notices posted. 1903, c. 563, ss. 5, 6. 1914. Negligence of guest. Any innkeeper against whom claim is made for loss sustained by a guest may show that such loss resulted from the negligence of such guest or of his failure to comply with the reasonable and proper regulations of the inn. 1903, c. 563, s. 7. Note. For lien of innkeepers on baggage and other property, see Liens, s. 2037. 1915 INSOLVENT DEBTORS— 7. Criminal Actions. Ch. 43 CHAPTER 43. INSOLVENT DEBTORS. I. Criminal actions. II. Civil actions — under arrest, III. Civil actions — not under arrest, IV. General provisions, V. Under sentence, Sections. 1915—1919 1920—1929 1930—1934 1935—1942 1943—1949 I. Ckiminal Actions. 1915. Who may be discharged from prison. The following per- sons may be discharged from imprisonment upon complying with this chapter: 1. Every putative father of a bastard committed for a failure to give bond, or to pay any sum of money ordered to be paid for its maintenance. 2. Every person committed for the fine and costs of any criminal prosecution. Code, s. 2967; R. C, c. 59, s. I; 1773, e. 100, s. 1; 1808, e. 746, s. 2; 1810, c. 797, c. 802; 1830, c. 33; 1838, e. 23; 1840, cc. 33, 34; 1852, c. 49; 1868-9, c. 162, s. 20. 1916. When petition filed, on whom served. Every such person, having remained in prison for twenty days, may apply by petition to the court, where the judgTiient against him was entered, praying to be brought before such court at a time and place to be named in the petition, and to be discharged upon taking the oath hereinafter prescribed. The applicant shall cause ten days' notice of the time and place of filing the petition to be served on the sheriff or other officer b}' whom he was committed. In cases of conviction before a justice of the peace the clerk of the superior court of the county where the convicted person confined for costs is, may administer the oath and discharge the prisoner. Code, ss. 2968, 2969; 1891, c. 195; R. C, c. 59, s. 1; 1773, c. 100, s. 1; 1808, c. 746, s. 2; 1810, c. 797, c 802; 1830, c. 33; 1838, c. 23; 1840, cc. 33, 34; 1852, c. 49; 1868-9, c. 162, s. 28; 1874-5, c. 11; 1868-9, c. 162, s. 27; 1873-4, c. 90. 1917. Warrant issued for prisoner. The clerk of the superior court, or justice of the jieaec before whom such petition is pre- sented, shall forthwith issue a warrant to the sheriff, or keeper of the prison, requiring him to bring the jn-isoner before the court. 1917 INSOLVENT DEETOES— 7. Criminal Actions. Ch. 43 at the time and place named for the hearing of the case, wliich war- rant every such sheriff or keeper shall obey. Code, s. 2970; R. C, c. 59, s. 1; 1773, c. 100, s. 1; 1808, c. 746, s. 2; 1810, cc. 797. 802; 1830, c. 33; 1838( c. 23; 1840, ec. 33, 34; 1852, c. 49; 1808-9, c. 162, s. 29. 1918. Proceeding on application. At the hearing of the petition, if the prisoner have no visible estate, and take and subscribe the oath or affirmation jirescribed in the succeeding section, the clerk of the superior court, or justice of the peace before whom he is brought, shall administer said oath or affirmation to him, and dis- charge him from imprisonment; of which an entry shall be made in the docket of the court, and, where the proceeding is before a justice of the peace, the justice shall return the petition and orders thereon into the office of the clerk of the superior court to be filed. Code, s. 2971; R. C, c. 59, s. 1; 1773, c. 100, s. 1; 1808, c. 746, s. 2; 1810, c. 797, 0. 802; 1830, c. 33; 1838, c. 23; 1840, ec. 33, 34; 1852, c. 49; 1868-9, e. 162, s. 30. 1918a. Oath to be taken. The oath referred to in the preceding section shall be as follows: I, , do solemnly swear (or affirm) that I have not the worth of fifty dollars in any worldly substance, in debts, money or otherwise whatsoever, and that I have not at any time since my imprisonment or before, directly or indirectly, sold or assigned, or otherwise disposed of, or made over in trust for myself or my family, any part of my real or personal estate, whereby to have or expect any benefit, or to defraud any of my creditors; so help me, God. Code, s. 2972; R. C. c. 59, s. 1: 1773, c. 100, s. 1; 1808, c. 746, s. 2; 1810, c. 797, c. 802; 1830, c. 33; 1838, c. 23; 1840, cc. 33, 34; 1852, c. 49; 1868-9, c. 162, s. 31; 1881, c. 76. 1919. Who may suggest fraud. The chairman of the board of connnissioners, and every officer interested in the fee bill taxed against such prisoner, may oppose bis taking the oath prescribed in the preceding section, and file particulars of the suggestion in writing, in the court where the same shall stand for trial as prescribed in this chapter in other cases of fraud or concealment. Code, s. 2973; 1868-9, c. 162, s. 32. II. Civil Actions — Under Areest. 1920. Who entitled. The following persons are entitled to the benefit of this chapter : 1. Every person taken or charged on any order of arrest for default of bail, or on surrender of bail in any action. 2. Every person taken or charged in execution of arrest for any debt or danuigcs rendered in any action whatever. Code, s. 2951 ; 1868-9, c. 162, s. 10. 584 1921 INSOLVENT DEBTOES— 17. Under Arrest. Ch. 43 1921. When petition may be filed. Every person taken or charged as in tlie preceding section specified, may, at any time after his arrest or imprisonment, petition the court from which the pro- cess issued on which he is arrested or imprisoned, for his discharge therefrom, on his compliance with this chapter. Code, s. 2952; R. C, c. 59, s. 3; 1868-9, e. 162, s. 11. 1922. The petition; verification. The petition shall set forth the cause of the imprisonment, with the writ or process and com- plaint on which the same is founded, and shall have annexed to it a just and true account of all his estate, real and personal, and of all charges affecting such estate, as they exist at the time of filing his petition, together with all deeds, securities, books or writings whatever relating to the estate and the charges thereon; and also what property, real and personal, the petitioner claims as exempt from sale under execution, and shall have annexed to it an oath or affirmation, subscribed by the petitioner and taken before any person authorized by law to administer oaths, to the effect following : I, , the within named petitioner, do swear (or affirm.) that the within petition and account of my estate, and of the charges tliereon, are, in all respects, just and true; and that 1 have not at any time or in any manner disposed of or made over any part of my property, with a view to the future benefit of myself or my family, or with an intent to injure or defraud any of my creditors; so help me, God. Code, ss. 2953, 2954; R. C, c. 59, s. 3; 1868-9, c. 162, ss. 12, 13. 1923. What notice given, and to whom. Twenty days' notice of the time and place at which the petition will be filed, together with a copy of such petition and the account annexed thereto, shall be personally served by such debtor on the creditor or creditors at whose suit he is arrested or imprisoned, and such other creditors as the debtor may choose, or their personal representatives or attor- neys ; and if the person to be notified reside out of the state, and have no agent or attorney in the state, the notice may be served on the officer having the claim to collect, or by two weekly publications in any newspaper in the state. Code, s. 2955; R. C, c. 59, ss. 3, 20; 1773, c. 100, s. 8; 1868-9, c. 162, s. 14. 1924. Who may suggest fraud. Every creditor upon whom the notice directed in the preceding section is served may suggest fraud upon the hearing of the petition, and the issues made up respecting the fraud shall stand for trial as in other cases. Code, s. 2956; R. C, c. 59, s. 13; 1822, c. 1131, s. 4; 1835, e. 12; 1S68-9, c. 162, s. 15. 1925. When no fraud suggested, debtor discharged. If no cred- itor suggest f valid or upprise the clischarge of the debtor, the justice 585 1925 INSOLVENT DEBTOES— 77. Under Arrest. Ch. 43 of the peace or the clerk of the superior court before whom the peti- tion is heard, shall forthwith discharge the debtor, and, if he siir- render any estate for the benefit of his creditors, shall appoint a trustee of such estate. The order of discharge and appointment shall be entered in the docket of the court, and if granted by a jus- tice of the peace a copy thereof shall be certified by him to the clerk of the superior court, where the same shall be recorded, and filed. Code, s. 2957; R. C, c. 59, s. 1; 1773, c. 100; 180S, c. 746, s. 2; 1810, c. 797, c. 802; 1830, c. 33; 1838, c. 23; 1840, ce. 33, 34; 1852, e. 49; 1868-9, c. 162, s. 16. 1926. Cause continued, when. Whenever it appears to the court that any debtor, who may have given bond for his appearance under this chapter, is prevented from attending court by sickness or other sufiicient cause, the case shall be continued to another day, or to the next term, when the same proceedings shall be had as if the debtor had appeared according to the condition of his bond, and in the event of his death in the meantime, his bond shall be discharged. Code, s. 2959; R. C, c. 59, s. 10; 1822, c. 1131, s. 1; 1868-9, c. 162, s. 18. 1927. Issue of fraud, how debtor discharged. After an issue of fraud or concealment is made up, the debtor shall not discharge himself as to the creditors in that issue, except by trial and verdict in the same, or by a discharge by consent. Code, s. 2962; R. C, e. 59, s. 17; 1868-9, c. 162, s. 21. 1928. Fraud found; imprisoned, how. If, on the trial, the jury find that there is any fraud or concealment, the judgment shall be that the debtor be imprisoned until a full and fair disclosure and account of all his money, property or effects be made by the debtor. Code, s. 2961; R. C, c. 59, s. 14; 1822, c. 1131, s. 4; 1835, c. 12; 1868-9. c. 162, s. 20. 1929. Effect of order of discharge. Tlie order of discharge un- der this chapter, whether granted upon a nonsuggestion of fraud, upon the finding of a jury in favor of the debtor, or otherwise, shall be in like tei-ms and have like effect as prescribed in section one thou- sand nine hundred and thirty-three ; except that the body of such debtor shall be free from arrest or imprisonment at the suit of every creditor, and as to him only, to whom tlie notice rcipiircd may have been given ; and the notices, or copies thereof, shall in all cases be filed in the oftice of the superior court clerk. Code, s. 2960; R. C, c. 59, s. 11; 1822, c. 1131, s. 4; 1835, c. 12; 1868-9, c. 162, s. 19. 1930 INSOLVENT DEBTOES— ///. Not Under Arrest. Ch. 43 III. Civil Actions — Not Undek Aeeest. 1930. May file petition; what to contain; liovy verified. Every insolvent debtor may present a petition in tlie superior court, praying that his estate may be assigned for the benefit of all his creditors, and that his person may thereafter be exempt from arrest or impris- onment, on account of any judgment previously rendered, or of any debts previously contracted. On presenting such petition, every insolvent shall deliver therev^ith a schedule containing an account of his creditors and an inventory of his estate, which said inventory shall contain — 1. A full and true account of his creditors, with the place of resi- dence of each, if known, and the sum owing to each creditor, whether on written security, on account or otherwise. 2. A full and true inventory of his estate, real and personal, with the incumbrances existing thereon, and all books, vouchers and secu- rities relating thereto. 3. A full and true inventory of all property, real and personal, claimed by him as exempt from sale under execution. He shall annex to his petition and schedule the following affidavit, which must be taken and subscribed by him before the clerk of the superior court, and must be certified by such officer : I, , do swear (or affirm) that the account of my creditors, with the places of their residence, and the inventory of my estate, wliich are herewith delivered, are in all respects just and true; that I have not at any time or in any manner disposed of or made over any part of my estate for the future benefit of myself or my family, or in order to defraud any of my credi- tors; and that I have not paid, secured to be paid, or in any way compounded with any of my creditors, with a view that they, or any of them, should abstain or desist from opposing my discharge; so help me, God. Code, ss. 2942, 2943, 2944; 1868-9, c. 162, ss. 1, 2, 3. 1931. Duty of clerk on receiving petition. On receiving the petition, schedule and affidavit, the clerk of the superior court shall make an order requiring all the creditors of such insolvent to show cause before said officer, within thirty days after publication of the order, why the prayer of the petitioner should not be granted, and shall post a notice of the contents of the order at the courthouse door and three other public places in the county where the applica- tion is made for four successive weeks; or, in lieu thereof, shall pub- lish the same for three successive weeks in any newspaper published in said county, or in an adjoining county. Code, ss. 2945, 2946; 1868-9, c. 162, ss. 4, 5. 1932. Discharged, when. If no creditor oppose the discharge of the insolvent, the clerk of the superior court before whom the hear- 1932 INSOLVENT DEBTOES— ///. Not Under Arrest. Ch. 43 ing of the petition is had shall enter an order of discharge and appoint a trustee of all the estate of such insolvent. Code, s. 2947; 1868-9, c. 162, s. 6. 1933. Order of discharge, terms and effect. The order of dis- charge shall declare that the person of such insolvent shall forever thereafter be exempted from arrest or imprisonment on account of any judgTnent, or by reason of any debt due at the time of such order, or contracted for before that time, though payable afterwards. But no debt, demand, judgment or decree against any insolvent, dis- charged under this chapter, shall be affected or impaired by such discharge, but the same shall remain valid and effectual against all the property of such insolvent acquired after his discharge and the appointment of a trustee ; and the lien of any judgment or decree upon the property of such insolvent shall not be in any manner affected by such discharge. Code, s. 2950; 1868-9, c. 162, s. 9. 1934. Creditor may suggest fraud. Every creditor opposing the discharge of the insolvent may suggest fraud and set forth the par- ticulars thereof in writing, verified by his oath ; but the insolvent shall not be compelled to answer the suggestions of fraud in more than one case, though as many creditors as choose may make them- selves parties to the issues in such cases. Code, s. 2948; 1868-9, c. 162, s. 7. IV. General Peovisions. 1935. Issue of fraud made up, cause docketed for trial. In every case under this chapter where an issue of fra\ul is made up, the case shall be entered in the trial docket of tlic superior court, and stand for trial as other causes; and upon a finding by the jury in favor of the petitioner the judge shall discharge the debtor; if the finding be against the petitioner he shall be committed to jail until he make full disclosure. Code, s. 2949; 1868-9, e. 162, s. 8. 1936. Debtor may give bond. Every debtor entitled to the pro- visions of this clia]iter may, at the time of filing his application for a discharge or at any time afterwards, tender to the sheriff or other officer having his body in charge, a bond, with suflicient surety, in double the amount of the sum due any creditor or creditors at whose suit he was taken or charged, conditioned for the ajipearance of such debtor before the court where his petition is filed, at the hearing thereof, and to stand to and abide by the final order or decree 1936 INSOLVENT DEBTORS— 77. Gen. Provisions. Ch. 43 of the court in the case. If such bond be satisfactory to the sherifl, he shall forthwith release such debtor from custody. Code, s. 2958; R. C, c. 59, s. 27; 1868-9, c. 162, s. 17. 1937. Surety may surrender principal. The surety in any bond conditioned for the appearance of any person under this chapter, may surrender the principal, or such principal may surrender him- self, in discharge of the bond, to the sheriff or other officer of any court where such principal is bound to appear, in the manner pro- vided in the chapter entitled Civil Procedure, subchapter Arrest and Bail. Code, s. 2963; R. C, c. 59, s. 23; 1793, c. 100, s. 7; 1793, e. 380, s. 1; 1822, e. 1131, s. 3; 1868-9, c. 162, s. 22. 1938. When creditor liable for jail fees. When any debtor is actually confined within the walls of a prison, on an order of arrest in default of bail or otherwise, the jailer must furnish him with necessary food during his confinement, if the prisoner require it, for which the jailer shall have the same fees as for keeping other prisoners. If the debtor be unable to discharge such fees, the jailer may recover them from the party at whose instance the debtor was confined. And at any time after the Arrest, the sheriff or jailer may give notice thereof to the plaintiff, his agent or attorney, and demand security of him for the prison fees that accrue after such notice, and if the plaintiff fail to give such security then the sheriff may discharge the debtor out of custody. Code, s. 2965; R. C, c. 69, s. 5; 1773, c. 100, ss. 8, 9; 1821, c. 1103; 1868-9, c. 162, s. 24. 1939. Persons removing debtors to defraud creditors, liable as debtor. If any person shall remove or shall aid and assist in remov- ing any debtor out of any county in which he shall have resided for the space of six months, or more, with the intent, by such removing, aiding or assisting, to delay, hinder or defraud the creditors, or any of them, of such debtor, the person so removing, aiding or assisting therein, and his executors or administrators, shall be liable to pay all the debts which the debtor removed may justly owe in the county from which he was so removed ; and the same may be recovered by the creditors, their executors or administrators, by a civil action. Code, g. 1551; R. C, c. 50, s. 14; 1820, c. 1063. 1940. False swearing; penalty. If any insolvent or imprisoned debtor take any oath prescribed in this chapter falsely and corruptly, and upon indictment for perjury be convicted thereof, he shall suffer all the pains of perjury, and he shall never after have any of the 589 1940 INSOLVENT DEBTORS— /F. Gen. Provisions. Ch. 43 benefits of this chapter, but may be sued and imprisoned as though he had never been discharged. Code, s. 2964; R. C, c. 59, s. 25; 1793, c. 100, s. 10; 1868-9, c. 162, s. 23. Note. For additional penalty, see s. 3615. 1941. General power of trustees. Any trustee appointed under this chapter, in the several cases therein contemplated, is hereby declared a trustee of the estate of the debtor, in respect to whose prop- erty such trustee is apj^ointed for the benefit of creditors, and is invested from the time of appointment with all the powers and authorities, and subject to the control, obligations and responsibili- ties prescribed by law in relation to personal representatives over the estates of deceased persons; but all debts shall be paid by the trustees pro rata. Code, s. 2977; R. C, c. 59, ss. 21, 22; 1773, c. 100, ss. 5, 6; 1827, c. 44; 1830, c. 26, s. 2; 1868-9, c. 162, s. 44. 1942. Who may take jail bounds. Any imprisoned debtor may take the benefit of the prison boimds by giving security, as required by law, except as follows: 1. A debtor against whom an issue of fraud is found. 2. Any debtor who, for other cause, is adjudged to be imprisoned until he make a full and fair disclosure or account of his property. Code, s. 2966; R. C, c. 59, s. 27; 1818, c. 964; 1868-9, c. 162, s. 25. V. Under Sentence. 1943. Confined in jail or penitentiary, who may apply for trustee. Whenever any debtor is imprisoned in the penitentiary for any term whatever, or in a county jail for any term more than twelve months, application by petition may be made by any creditor, the debtor, or by his wife, or any of his relatives, for the appointment of a trustee to take charge of the estate of such debtor. Code, s. 2974; 1868-9, c. 162, s. 40. 1944. To whom application made when trustee appointed. The application must be made to the s\iperior court of the county where the debtor was convicted ; and upon producing a copy of the sen- tence of such debtor, duly certified by the clerk of the court, together with an affidavit of the applicant that such debtor is act- ually imprisoned under such sentence, and is indebted in any sum whatever, the clerk of the court or the judge thereof may imme- diately ajipoint a trustee of the estate of such debtor. Code, s. 2975; 1868-9, c. 162, ss. 41, 42. 1495 INSOLVENT DEBTORS— F. Under Sentence. Ch. 43 1945. Duty of trustee. Every trustee is required to pay the debts of the imprisoned debtor in the manner directed in section numbered one tliousand nine hundred and forty-one ; and after paying such debts, the trustee shall apply the surplus, from time to time, to the support of the wife and children of such debtor, under the direc- tion of the superior court; and Avhenever such imprisoned debtor is lawfully discharged from his imprisonment, the trustee so appointed -hall deliver up to him all the estate, real and personal, of such 'k'btor, after retaining a suiScient sum to satisfy the expenses in- 'iirred in the execution of the trust and lawful commissions therefor. Code, s. 2976; 1868-9, e. 162, s. 43. 1946. Trustee to make returns. Such trustee shall make his returns and have his accounts audited and settled by the clerk of the superior court of the county where the proceeding was had, in like manner as provided for personal representatives. Code, s. 2978; 1868-9, c. 162, s. 45. 1947. Oath of trustee. Before proceeding to the discharge of his duty, such trustee shall take and subscribe an oath, well and truly to execute his trust according to his best skill and understanding; which oath m\ist be filed with the clerk of the superior court. Code, s. 2979; 1868-9, e. 162, s. 46. 1948. May appoint several trustees. The court shall have power, when deemed necessary, to appoint more than one person trustee under this chapter; but in reference to the rights, authorities and duties conferred herein, all such trustees shall be deemed one person in law. Code, s. 2980; 1S68-9, c. 162, s. 47. 1949. Court may remove trustee and appoint successor. In case of the death, removal, resignation or other disability of a trus- tee, the court making the appointment may from time to time sup- ply the vacancy; and all proceedings may be contimied by the suc- cessor in office in like manner as in the first instance. Code, s. 2981 ; 1868-9, c. 162, s. 48. 591 1950 INTEEEST. Ch. 44 CHAPTEK 44. INTEREST. (Sections 1950—1956.) 1950. Rate of, six per cent. The legal rate of interest shall be six per centiun per annum for such time as interest may accrue, and no more. Code, s. 3385; 1895, c. 69; 1876-7, c. 91. 1951. Penalty for usury; corporate bonds sold below par. The taking, receiving, reserving or charging a greater rate of interest than six per centum per annum, either before or after the interest may accrue, Avhen knowingly done, shall be a forfeiture of the entire interest which the note or other evidence of debt carries with it, or which has been agreed to be paid thereon. And in case a greater rate of interest has been paid, the person or his legal representatives or corporation by whom it has been paid, may recover back twice the amount of interest paid, in an action in the nature of action for debt: Provided, that in any action brought in any court of compe- tent jurisdiction to recover upon any such note or other evidence of debt, it shall be lawful for the party against whom the action is brought to plead as a counterclaim the penalty above provided for, to-wit, twice the amount of interest paid as aforesaid, and also the forfeiture of the entire interest: Provided further, that nothing- contained in the foregoing section shall be held or construed to pro- hibit private corporations from paying a commission on or for the sale of their coupon bonds, nor from selling such bonds for less than the par value thereof. This section shall not apply to contracts exe- cuted prior to February twenty-first, one thousand eight hundred and ninety-five. Code, s. 3836; 1895, c. 69; 1903, c. 154; 1876-7, c. 91. Note. For limitation of actions, see Civil Procedure, s. 396. For damages against officers for money unlawfully detained, see s. 284. For special usury statute for New Hanover and Guilford counties, see 1905, c. 819. 1952. Time from which it runs. Interest is due and payable on instrinnents, as follows : 1. Where the instrument provides for the payment of interest without specifying the date from which interest is to run, the interest runs from the date of the instrument, and if the instrument is undated, from the issue thereof. 1!)52 IjSTTEEEST. Ch. 4i 2. All bonds, bills, notes, bills of exchange, liquidated and settled :iceounts, shall bear interest from the time they become due, pro- vided such liquidated and settled accounts be signed by the debtor, unless it be sjDecially expressed that interest is not to accnie until a time mentioned in the said writings or securities. 3. All bills, bonds, or notes payable on demand, shall be held and deemed to be due when demandable by the creditor, and shall bear interest from the time they are demandable, unless otherwise ex- pressed. 4. All securities for the payment or delivery of specific articles shall bear interest as moneyed contracts; and the articles shall be rated by the jury at the time they become due. 5. Bills of exchange which shall be drawn or indorsed in the state, and have been protested, shall carry intei'est, not from the date thereof, but from the time of payment therein mentioned. Code, ss. 44, 45, 46, 47; 1899, c. 73.3, s. 17, sub-s. 2; E. C, c. 13; 1786, c. 248; 1828, c. 2. 1953. Guardian notes bear compound. Guardians shall have power to lend any portion of the estate of their wards upon bond with sufficient seciirity, to be repaid with interest annually, and all the bonds, notes or other obligations which he shall take 'as giiardian, shall bear compound interest, for which he must account, and he may assign the same to the ward on settlement with him. Code, s. 1.592; E. C, c. 54, s. 23; 1762, c. 69; 1816, c. 92.5; 1868-9. o. 201, s. 29. 1954. Contracts, except penal bonds and judgments to bear; jury to distinguish principal from. All sums of money due by con- tract of any kind whatsuever, excepting money due on penal Iwuds, shall bear interest, and when a jury shall render a verdict therefor they shall distinguish the principal from the sum allowed as inter- est; and the principal sum due on all such contracts shall bear inter- est from the time of rendering judgment thereon until it be paid and satisfied. In like manner, the amount of any judgment or decree, except the costs, rendered or adjudged in any kind of action, though not on contract, shall bear interest till paid, and the judg- ment and decree of the court shall be rendered according to this section. Code, s. .530; E. C, c. 31, s. 90; 1786, c. 2.53; 1789, c. 314, s. 4; 1807, e, 721. 1955. After verdict or report, computed by clerk. When the judgment is tVir tlie recovery of money, interest from the time of the verdict or report until judgment be finally entered shall be com- puted by the clerk and added to the costs of the party entitled thereto. Code, s. .529. Eev. Vol. T— 34 .mS 1956 INTEREST. Cli. 44 1956. Judgment by default final, clerk ascertains. Whenever a suit shall bo instituted on a siniilc ImiuiI, a cDVL'uant for the payment of money, bill of exchange, promissory note, or a signed account, and the defendant shall not plead to issue thereon, upon judgment, the clerk of the court sliall ascertain the interest duo by law, without a writ of inquiry, and the amount shall be included in the final judg- ment of the court as damages, which judgment shall be rendered therein in the manner prescribed by section one thousand nine hun- dred and fifty-four. Code, s. 531; R. C, c. 31, s. !)1 ; 1797, c. 475. CHAPTER 45. JURORS. Sections. I. How selected, 1957—1963 II. Petit juiors and tulesincn, 1964— 106S III. Grand juiors, 1969— 197-J IV. Special venire, 1973—1975 V. General provisions, 1976 — 19S1 I. How Selected. 1957. List made by county commissioners. The board of count}' commissioners for the several counties at their regular meet- ing on the first Monday in June, iu the year nineteen hundred and five and every two years thereafter, shall cause their clerks to lay before them the tax returns of the preceding year for their county, from which they shall jiroceed to select the names of all such persons as have paid all the taxes assessed against them for the ])reced- ing year and are of good moral character and of suflicient intelli- gence. A list of the names thvis selected shall be made out by the clerk of the board of commissioners and .shall constitiito ihe jury list, and shall be preserved as such. 1899, c. 729; Code, ss. 1722, 1723; 1897, cc. 117, 5.39; 1889, c. 5.59; 1806, c. 694. 1958. Names put in boxes. The commissioners at their regular meeting on the first ^louday in July in the year nineteen hundred and five, and every two years thereafter, shall cause the names on their jury list to be co]iied on small scrolls of pajier of equal size and put into a box procured for that ])ur])oso, which must have two divisions marked No. 1 and Xo. 2, respectively, and two hicks, the 195S JUEORS— 7. How Sehded. C'h. -i.j key of one to be kept by the sheriff of the couuty, the other by the chairman of the board of commissioners, and the box by the clerk of the board. Code, s. 1726; 1868-9, c. 9. s. 5. Note. For manner of drawing jury in Guilford, see 1905. c. 613. 1959. Drawn from box, how. At least twenty days before each regnlar or sjiucial term of the superior court, the board of commis- sioners of the county shall cause to be drawn from the jury box out of the partition marked No. 1 by a child not more than ten years of age, thirty-six scrolls (in Cumberland county the commissioners may, in their discretion, cause to be drawn from the jury box an addi- tional twelve scrolls), except when the term of court is for (he trial of civil cases exclusively, when they need not draw more than twenty- four scrolls, and the persons whose names are inscribed on said scrolls shall serve as jurors at the term of the superior court to be held for the county ensuing such drawing, and for which they are drawn, and the scrolls so drawn to make the jury shall be pTit into the partition marked No. 2. The said commissioners shall at the same time and in the same manner draw the names of eigh- teen persons who shall be summoned to appear and serve during the second week (except in the counties of Iredell and Rowan, where twenty-four jurors shall be drawn, and except in Hertford county, where fifteen extra jurors shall be drawn), and a like number for each succeeding week of the term of said court, unless the judge thereof shall sooner discharge all -jurors from further service ; and the trial jury which has served during each week, shall be discharged by the judge at the close of said week, unless the said jury shall be then actually engaged in the trial of a case, and then they shall not be discharged until the trial is determined. The said commissioners may, at the same time and in the same manner, draw the names of eighteen other persons, who shall serve as petit jurors for the week for which they are drawn and summoned. Code, ss. 1727. 1731: 1889, c. 5.59: 1897, c. 117; 1868-9, c. 175; 1868-9, c. 9, s. 6 ; 1806. c. 694; 1901. r. G36 ; 1901, c, 28, s. 3: 1903, c. 11; 1905. cc. 38, 76, s. 4; 190.".. c. 285. 1960. Jurors with suits pending. If any of the jurors drawn liave a suit ])ending and at issue in the superior court, the scrolls with their names must be returned into partition No. 1 of the jury box. Code, s. 1728; 1868-9, c. 9. s. 7; 1806, c, 694. 1961. When disqualified persons are drawn. If any of the per- sons drawn to serve as jurors be dead, removed out of the county, or otherwise disqualified to serve as jurors, the scrolls with the 595 10C.1 JUKOES— /. IIou- Selected. ■ Ch. -t:. uaines of such persons nnist be destroyed, and in such cases otlier jsersons shall be drawn in their stead. Code, s. 1729; 18S9, c. 559; 1897, c. 117, s. 5; 180G, c. 694. 1962. How drawing to continue. The drawing out of partition marked Xo. 1 and putting the scrolls drawn into partition Xo. 2 shall continue until all the scrolls in partition No. 1 are drawn out, when all the scrolls shall be returned into partition Xo. 1 and drawn out again as herein directed. Code, s. 1730; 1868-9, c. 9, s. 9; 1806, c. 6. s. 94. 1963. When commissioners fail to draw jury. If the commis sioners for any cause fail to draw a jury for any term of the supe- rior court, regular or special, the sheriff of the county and the clerk of the commissioners in the presence of, and assisted by two justices of the peace of the county, shall draw such jury in the manner above prescribed ; and if a special term shall continue for more than two weeks, then for the weeks exceeding two, a jury or juries may be drawn as in this section provided. Code, s. 17.32; 1868-9, c. 9, s. 11. II. Petit Jueoks and Talesmen. 1964. Peremptory challenges. The clerk, before a jury shall be ini]ianeled t(i try the 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 the parties, or their counsel for them, may challenge peremptorily four jurors upon the said panel, without showing any cause therefor, which shall be allowed by the court. Code, 9. 406; R. C, c. 31, s. 35; 1796, c. 452, s. 2; 1812, c. 833. 1965. Peremptory challenges apportioned between defendants. When there are two or more defendants in a civil action the jtidge presiding at the trial, if it appears to the court that there are divers and antagonistic interests between the defendants, may in his discre tion apportion among the defendants the challenges now allowed In- law to defendants, or he may increase the number of challenges to ni>t exceeding four to each defendant or class of defendant.s representing the same interest: Provided, in either event the same number of challenges shall be allowed each defendant or class of defendants representing the same interest: Provided further, that the decision of the judge as to the nature of the interests and number of chal- lenges shall be final. 1905, c. 357. 59G l-.icti JUEOES— 77. Petit and Talesmen. Cb. 45 1966. Sworn; judge decides competency. The clerk shall, at I lie beginning of the court, swear such of the petit jury as are of the "liginal panel, to try all civil cases; and if there should not be enough 'if the original panel, the talesmen shall be sworn; and the petit jurors of the original panel, as well as talesmen, shall be sworn as prescribed in the chapter entitled Oaths: Provided, that nothing herein shall be construed to disallow the usual challenges in law to rhe whole jury so sworn or to any of them; and if by reason of such 'hallenge, any juror shall be withdrawn, his place on the jury shall lie supplied by any of the original venire, or from the bystanders 'pialified to serve as jurors, and the judge or other presiding officer ii|' the court shall decide all questions as to the competency of jurors m lioth civil and criminal actions. lode, s. 405; R. C, c. 31, s. 34; 1790, c. 321; 1822, c. 1133, s. 1. 1967. Tales jurors summoned; qualifications. That there may not be a defect of jurors, the sheriff shall by order of court smumon, from day to day, of the b^'standers, other jurors, being freeholders, within the county where the court is held, to serve on the petit jury, and on any day the court may discharge those who have served the ]-)receding day. It shall be a disqualification and gi'ound of chal- lenge to any tales juror that such juror has acted in the same court as grand, petit or tales juror within two years next preceding such term of the court. Code, s. 1733; R. C, 31. s. 29; 1779, e. 156, s. 69. 1968. Judge to appoint one to summon tales jurors, sheriff interested. In the trial of any action before a jury where the sheriif of the county in which the case is to be tried is a party to or has any interest in the action, or when the presiding judge shall find upon investigation that the sheriff of the county is not a suitable person, on account of indirect interest in or relative to the cause of action, to be entrusted with the summoning of the tales jurors in any particular case pending, such judge shall appoint some suitable person to s\immon the jurors in place of the sheriff. 1889, e. 441. III. Grand Jurors. 1969. How drawn. The judges of the superior court, at the terms of their coiirts, except those terras which are for the trial of civil cases exclusively, and special terms for which no grand jury has been ordered, shall direct the names of all persons returned as jurors to he written on scrolls of paper and put into a box or hat and drawn out by a child under ten years of age; whereof the first 597 1969 JURORS—///. Grand Jurors. Ch. 4". eighteen drawn shall be a grand jury for the court : and the residue shall serve as petit jurors for the court. Code, s. 404; E. C, c. 31, s. 33; 1779, c. 157, s. 11. Note. For special terms, see s. 1515. 1970. Exceptions to, when taken. All exceptions to grand ju- rors for and on account of their disqualifications shall be taken before the jury is sworn and impaneled to try the issue, by motion to quash the indictment, and if not so taken the same shall be deemed to have been waived. Code, s. 1741. 1971. Foreman may administer oaths. The foreman of every grand jury duly sworn and impaneled in any of the courts shall have power to administer oaths and aflirmations to persons to be examined before it as witnesses: Provided, that the said foreman shall not administer such oath or affirmation to any persons except those whose names are endorsed on the bill of indictment by the officer prosecuting in behalf of the state, or by direction of the court : Provided further, that the foreman of the grand jury shall mark on the bill the names of the witnesses sworn and examined before the j^ry. Code, s. 1742; 1879, c. 12. 1972. Must visit jail and county home. Every grand jury, while the court is in session, shall visit the county home for the aged and infirm, the workhouse, if there is one, and the jail, examine the same, and especially the apartments in which inmates and prisoners shall be confined ; and they shall report to the court the condition thereof and of the inmates and prisoners confined therein, and also the man- ner in which the jailer or superintendent has discharged his duties. Cotlc, s. 785; R. C, c. 30, s. 3: 1816, c. nil, s. 3. Note. For duty of grand jury in rc])ortin<; infants without f;uardian. see s. 1810. IV. Special Venire. 1973. Ordered; summoned. Whenever a judge of the superior court shall deem it lu'cessary to a fair and imjiartial trial of any person charged with a capital offense, he may issue to the sheriff of the county in which the trial may be, a special writ of veiiire facias, commanding him to summon such number of the freeholders of said county as the judge may deem suflicient (such number being designated in the writ), to appear on some specified day of the term as jurors of said court; and the sheriff shall forthwith execute the Ill 73 JURORS— ZF. Special Venire. Cli. 45 writ and return it to tlie clerk of the court on the day when the same shall be returnable, with the names of the jurors summoned. Code, s. 1738; R. C, e. 35, s. 30; 1830, e. 27. 1974. Drawn from box, when. Whenever a judge shall deem a special venire necessary, he may, at his discretion, issue an order to the clerk of the board of commissioners for the county, commanding him to bring into open court forthwith the jury boxes of the county, and he shall cause the number of scrolls as designated by him to be drawn from box No. 1 by a child under ten years of age. And the names so drawn (being freeholders) shall constitute the special ve- nire, and the clerk of the superior court shall insert their names in the writ of venire, and deliver the same to the sheriff of the county, and the persons named in the writ and no others shall be summoned by the said sheriff. If the special venire is exhausted before the jury is chosen, the judge in his discretion may order another special venire to be drawn and summoned in like manner as the first, until the jury has been chosen. The scrolls, containing the names of the persons drawn as jurors from box l\o. 1 shall, after tke jury is chosen, be placed in box ISTo. 2 ; and if box Ko. 1 is exhausted before the jury is chosen, the drawing shall be completed from box No. 2, after the same shall have been well shaken. In the counties of Dur- ham and Rockingham whenever a special venire is ordered, the jurors shall be drawn as herein provided. Code, s. 1739; 1897, c. 364. 1975. Penalty on sheriff not executing; on jurors not attending. If any sheriff shall fail duly to execute and return such writ of venire facias, he shall be fined by the court not exceeding one hun- dred dollars; and all jurors so summoned shall attend until dis- charged by the court, under the same rules and penalties as are pre- scribed for other jurors. Code, s. 1740; R. C, c. 35. s. 31; 1830, c. 27, s. 2. V. General PEovISIo^^s. 1976. Summoned and must attend until discharged. The clerk of the board of county commissioners shall, within five days from the drawing, deliver the list of the jurors drawn for the superior court to the sheriff of the county, who shall summon the persons therein named to attend as jurors at such court, which s\immons shall be served, personally, or by leaving a copy thereof at the house of the juror, at least five days before the sitting of the court to which he 197Ci JUEORS— T'. General Provisions. C'li. io may be summoned ; and jurors shall apj)ear and give their attend- ance until diily dischaiged. Code, s. 1733; 1868-9, e. 9, s. 12; R. C, c. 31, s. 29; 1779, c. 157, ss. 4, 6. 1977. Penalty for nonattendance, regular and tales. Every person on the original venire summoned to appear as a juror, who shall fail to give his attendance until duly discliargcd, shall forfeit and pay for the use of the county the sum of twenty dollars, to be imposed by the court: Provided, that each delinquent juryman shall have until the next succeeding term to make his excuse for his non- attendance, and, if he shall render an excuse deemed sufficient by the court, he shall be discharged without costs. And every person summoned of the bystanders, who shall not appear and serve during the day as a juror, shall be fined in the sum of two dollars, unless he can show sufficient cause to the court; and the clerk shall forthwith issue an execution against the estate of the delinquent tales juror for such amercement and costs. Code, ss. 1734, 405; R. C, c. 31. s. 30; 1779. c. 157, s. 4; 1783, o. 180; 1800. c. 694. 1978. Furnished with accommodations. When any jury, im- paneled to try any cause, shall be put in charge of an officer of the court, the said officer shall furnish said jury with such accom- modation as the court may order, and the same shall be paid for by the party cast or by the county, imder the order and in the dis- cretion of the judge of said court. Code, s. 1736; 1876-7, c. 173; 1889, c. 44. 1979. Exempt from civil arrest. Xo sheriff or other officer shall arrest imder civil process any juror during his attendance on or going to and returning from any court of record. All such service shall be void, and the defendant on motion shall be discharged. Code, s, 1735; R. C, c. 31. s. 31; 1779, c. 157, s. 10. 1980. Exemptions from jury duty. Xo practicing physician, licensed druggist, telegraph operator who is in the regular employ of any telegraph company or railroad company, train dispatcher who has the actual handling of either freight or passenger trains, regularly licensed pilot, regular minister of the gospel, officer or employee of a state hospital for the insane, or active member of a fire company, shall be required to serve as a juror. Code, as. 1723, 2269; 1901, c. 118; 1897, c. 32; 1889, c. 255; 1885, c. 289. 1981. Clerk to keep record of jurors. The dork of the su]).- ri(ir court shall record alphaljetically in a buok kept for the ])ur- 600 r.isl JURORS — V. General Provisions. Ch. 45 pi'sc the names of all grand and petit jurors and talesmen who -hall serve in his court, with the term at which they serve. 1893, c. 52, s. 3. ]S!"0TE. See Clerk Superior Court. XoTE. For compensation of jurors, see s. 2798. For list of guardians furnished grand jury, see Guardian, For arguments to jury, see Attorneys, s. 216. For jurors in justices' courts, see s. 1428 et seq. For province of, in divorce, see s. 1564. For right of trial by jury, see ss. 527, 533, 2005. For waiver of trial by jury, see s. 540. For verdicts by jurors, see ss. 550, 553. CHAPTER 46. LANDLORD AND TENANT. Sections. I. The relation. 1982—1985 II. The lessor. 1986—1989 III. The lessee, 1990—1992 IV. Agricultural tenancies, 1993—2000 V. Summary ejectment, 2001 — 2010 VI. Forms, " 2011 I. TilE RiCL.VTION. 1982. Lessors and lessees, not partners. Xo lessor of prop- erty, merely by reason that he is to receive as rent or compensation for its use a share of the proceeds or net profits of the business in which it is employed, or any other uncertain consideration, shall be held a partner of the lessee. Code, s. 1744; 1868-9, c. 156, s. 3. 1983. Forfeiture without demand for rent, when. Whenever any half year's rent or more shall be in arrear from any tenant to liis landlord, and the landlord has a subsisting right to re-enter for the nonpayment of such rent, he may bring an action for the recovery of the demised premises, and the service of the summons therein shall be deemed equivalent to a demand of the rent in arrear and a re-entry on the demised premises, and if, on the trial of the caiise, it shall appear that the landlord had a right to re-enter the plaintiff shall have judgment to recover the demised premises and his costs. Code, 1745; 1868-9, c. 156, s. 156. 19S4 LAXDLOED, ETC.—/. The Bclnfion. Cli. 4tl 1984. Length of notice to quit. A tenancy from year to year may be terminated by a notice to qnit given one month or more before the end of the current year of the tenancy; a tenancy from month to month by a like notice of seven days; a tenancy from week to week, of two days. Code, s. 1750; 1891, c. 227; 1868-9, c. 156, s. 9. 1985. Agreement to repair, how construed. An agreement in a lease to repair a demised house sliall not be construed to bind the contracting party to rebuild or repair in case the house shall be destroyed or damaged to more than one-half its value, by acci- dental fire not occurring from the want of ordinary diligence on his part. Code, s. 1752; 1868-9, c. 156, s. 11. II. The Lessok. 1986. Recovers for use, when. Whenever any person shall oc- cupy land of another by the permission of s\ich other, without any express agreement for rent, or upon a parol lease which is void, the landlord may recover a reasonable compensation for such occu- pation, and if by such parol lease a certain rent was reserved, such reservation may be received as evidence of tlic value of the occu- pation. Code, s. 1746; 1868-9, c. 1.56, s. 5. 1987. Rent apportioned, estate terminated. If a lease of land, in which rent is reserved, payable at the end of the year or other certain period of time, be determined by the death of any person during one of the periods in which the rent was growing due, the lessor or his personal representative may recover a part of the rent which becomes due after the death, proportionate to the part of the period elapsed before the death, subject to all just allow- ances; and if any security shall have been given for such rent it shall be apportioned in like manner. Code, s. 1747; 1868-9, c. 156, s. 6. 1988. Rents and charges apportioned to successive owners. In all cases where rents, rent charges, annuities, |)ensi(ins, divi- dends, or any other payments of any description, are made payable at fixe(l periods to successive o'wmers under any instrument, or by any will, and where the right of any owner to receive pa^Tiiont is terminable by a death or other uncertain event, and where such riglit sliall so terminate during a period in wliich a payment is growing due, tlic jiayment becoming due next after sncli (cniiina- 1988 LANDLORD, ETC.— 77. The Lessor. Ch. 4G ting event, shall be apportioned among- the successive owners accord- ing to the parts of snch periods elapsing before and after the termi- nating event. Code, s. 1748; 1868-9, c. 156, s. 7. 1989. Grantees of reversion, same rights and liabilities as grantors. The grantee in every conveyance of reversion in lands, tenements or hereditaments, shall have the like advantages and remedies by action or entry against the holders of particular estates in snch real property, and their assigns, for nonpayment of rent, and for the nonperformance of other conditions and agreements con- tained in the instruments by the tenants of such particular estates^ as the grantor or lessor or his heirs might have ; and the holders of such particular estates, and their assigns, shall have the like advantages and remedies against the grantee of the reversion, or any part thereof, for any conditions and agreements contained in such instruments, as they might have had against the grantor or bis lessors or his heirs. Code. s. 1765; IVl Hen. VIII., c. U; 1868-9, c. 156, s. 18. III. The Lessee. 1990. Holds to end of farming year. Where any lease for years of any land let for farming on which a rent is reserved shall deter- mine during a current year of the tenancy, by the happening of any uncertain event determining the estate of the lessor, the tenant in lieu of emblements shall continue his occupation to the end of such current year, and shall then give up such possession to the succeed- ing owner of the land, and shall pay to such succeeding owner a part of the rent accrued since the last payment became due, propor- tionate to the part of the period of payment elapsing after the termi- nation of the estate of the lessor, to the giving up such possession, and the tenant in such case shall be entitled to a reasonable compen- sation for the tillage and seed of any crop not gathered at the expi- ration of such current year from the person succeeding to the pos- session. Code, s. 1749; 1868-9, e. 156, s. 8. 1991. Not liable for accidental damage. A tenant for life, or years, or for a less term, shall not be liable for damage occurring on the demised premises accidentally, and notwithstanding reasona- ble diligence on his part; unless he so contract. Code, s. 1751; 1868-9. c. 156, s. 10. 1992. May surrender, building destroyed or damaged. Tf a de- mi.scd house, or other building, be destroyed during tlic term, or 1992 LANDLORD, ETC.—///. The Lessee. Ch. 40 so much damaged that it can not be made reasonably fit for the pur- pose for which it was hired, except at an expense exceeding one year's rent of the premises, and the damage occvir without negligence on the part of the lessee or his agents or servants, and there be in the lease no agTcement respecting repairs, or providing for such a case, and the use of the house damaged was the main inducement to the hiring, the lessee may surrender his estate in the demised premises by a M'riting to that effect delivered or tendered to the landlord within ten daj's from the damage, and by paj'ing or ten- dering at the same time all rent in arrear, and a part of the rent growing due at the time of the damage, projiortionate to the time between the last period of payment and the occurrence of the dam- age, and the les.see shall be thenceforth discharged from all rent accruing afterwards ; but not from any other agreement in the lease. This section shall not apply if a contrary intention appear from the lease. Code, s. 1753; 1868-9, e. 156, s. 12. IV. Ageiculturai. Tkxaxcies. 1993. Landlord's lien, crop vested in, to secure, how enforced. When lands shall be rented or leased by agreement, written or oral, for agricultural purposes, or shall be cultivated by a cropper, unless otherwise agreed between the parties to the lease or agreement, any and all crops raised on said lauds shall be deemed and held to be vested in possession of the lessor or his assigns at all times, until the rents for said lands shall be paid and until all the stipulations con- tained in the lease or agreement shall be performed, or damages in lieii thereof shall be paid to the lessor or his assigns, and until said party or his assigns shall be paid for all advancements made and expenses incurred in making and saving said ci'ops. This lien shall be preferred to all other liens, and the lessor or his assigns shall be entitled, against the lessee or cropper or the assigns of either who shall I'emove the crop or any part thereof fi'om the lands without the consent of the lessor or his assigns, or against any other pei-son who may get possession of said crop or any part thereof, to the remedies given in an action upon a claim for the delivery of per- sonal property. Code, s. 1754; 1870-7, f. 28:!. 1994. Rights of tenant. Wliencver the lessor or his assigns sluill get the actual possession of the crop or any part thereof otherwise than by the mode prescribed in the preceding section, and said lessor or his assigns shall refuse or neglect, upon a notice, written or oral, of five days, given by the lessee or cropjier m- tlie assigns 604 l!)9i LAjSTDLOKD, etc.— 7T'. Agricultural Tenancies. Ch. 46 of either, to make a fair division of said crop, or to pay over to such lessee or cropper or the assigns of either, such part thereof as he may be entitled to under the lease or agreement, then and in that case the lessee or cropper or the assigns of either shall be entitled against the lessor or his assigns to the remedies given in an action upon a claim for the delivery of personal property to recover such part of the crop as he, in law and according to the lease or agree- ment, may be entitled to. The amount or quantity of such crop claimed by said lessee or cropper or the assigiis of either, together with a statement of the grounds upon which it is claimed, shall be fully set forth in an affidavit at the beginning of the action. Code, s. 1753; 1876-7, c. 283, s. 2. 1995. Action on the contract; tenant's undertaking. Where any controversy shall arise between the parties, and neither party avails himself of the provisions of this chapter, it shall be competent for either party to proceed at once to have the matter determined in the court of a justice of the peace, if the amount claimed be two hundred dollars or less, and in the superior court of the county where the property is situate if the amount so claimed shall be more than two hundred dollars. But in case there shall be a continuance or an appeal from the justice's decision to the superior court, the lessee or cropper, or the assigns of either, shall be allowed to retain possession of said projjerty upon his giving an undertaking to the lessor or his assigns, or the adverse party, in a sum double the amount of the claim, if such claim does not amoimt to more than the vahie of such property, otherwise to double the value of such property, with good and sufficient surety, to be approved by the justice of the peace or the clerk of the superior court, conditioned for the faithful payment to the adverse party of such damages as he shall recover in said action. Code, s. 175G; 1876-7, c. 283, s. 3. 1996. Crops delivered to landlord; undertaking. In case the les- see or cropper, or the assigns of either, shall, at tlie time of the appeal or continuance mentioned in the preceding section, fail to give the undertaking therein required, then the constable or other lawful offi- cer shall deliver the property into the actual possession of the lessor or his assigns, upon the lessor or his assigns giving to the adverse party an undertaking in double the amount of said property, to be justified as required in the preceding section, conditioned for the forthcoming of such property, or the value thereof, in case judgment shall be pronounced against him. Code, s. 1757; 1876-7, c. 283, s. 4. Ut97 LAXDLORI). ETC.— 71'. Ac/rlcuUural Tenancies. Ch. 4t; 1997. If neither gives undertaking, crops sold. If neither party i^ives the undertaking described in tlie two jireeeding' sections, it shall be the duty of the justice of the peace or the clerk of the sujicrior court, to issue an order to the constable or sheriff, or other lawful ofli- cer, directing him to take into his possession all of said property, or so much thereof as shall be necessary to satisfy the claimant's demand and costs, and to sell the same imder the rules and regulations pre- scribed by law for the sale of personal property under execution, and to hold the proceeds thereof subject to the decision of the court iipon the issue or issues pending between the parties. Code, s. 1758; 1876-7, e. 283, s. 5. 1998. Tenant's crop not subject to execution against landlord. Whenever servants and laborers in agriculture shall by their con- tracts orally or in writing be entitled, for wages, to a part of the crops cultivated by them, such part shall not be subject to sale under executions against their employers, or the owners of the land culti- vated. Code, s. 1790. 1999. Turpentine and lightwood leases. This chapter shall apply to all leases or contracts to lease turpentine trees, or use lightwood for i^urposes of making tar, and the parties thereto shall be fully sub- ject to the provisions and penalties of this chapter. Code. s. 1762; 1803, c. .517; 1870-7, c. 283, s. 7. 2000. Mining and timber land leases. If in a lease of land for mining, or of timbered land for the purpose of man\ifacturing the timber into goods, rent shall be I'eserved, and if it shall be agreed in the lease that the minerals, timber or goods, or any portion thereof, shall not be removed until the payment of the rent, in such case the lessor shall have the rights and be entitled to the remedy given by this chapter. Code. s. 1763: 1S08-9, c. l.'jO, s. 10. V. SUMMAKY EJECT^^E^'T. 2001. Tenant dispossessed, when. Any tenant or lessee of any house or land, and the assigns \uider the tenant or legal representa- tives of such tenant or lessee, who shall hold over and continue in the possession of the demi.sed premises, oi; any part thereof, M'ithout the permission of the landlord, and after demand made for its sur- render, may be removed from such premises in the manner herein- after ])rescribed in either of the following cases: 1. Whenever a tenant in possession of real estate holds over after his term has expired. 006 iMiOl LANDLORD, ETC.— T'. Summary Ejectmeid. Ch. 4G 2. When the tenant or lessee, or other person binder him, has done "1- omitted any act by which, according to the stipulations of the li'ase, his estate has ceased. 3. When any tenant or lessee of lands or tenements, being in arrear for rent, or having agreed to cultivate the demised premises and to 25ay a part of the crop to be made thereon as rent, or who shall have given to the lessor a lien on such crop as a security for the rent, shall desert the demised premises, and leave them unoccupied and uncultivated. 4. Whenever any tenant or cropper shall enter into a contract for the rental of land for the current or ensuing year, and without just cause wilfully neglects or refuses to perform the terms of his con- tract, then such tenant or cropper shall forfeit his right of possession to the premises. This subsection shall only apply in the counties of Wake, Hyde, Anson, Llertford, Sampson, Franklin, Union, Wayne, Lenoir, Greene, Johnston, Jones, Onslow, Craven, Cleveland, Samp- son, Pitt, Duplin, Gates, Cumberland, Perquimans, Chowan, Robe- son, Bladen, Nash, Harnett, Edgecombe, Wilson, Rockingham, Pen- der, Currituck, Gaston, Northampton, Beaiifort, Chatham, Tyrrell, Mecklenburg, Halifax, Caswell, Camden, Cabarrus, Columbus, Mar- tin, Montgomery and Washington. Code, ss. 1766, 1777; 4 Geo. II., e. 28; 1868-9, c. 156, s. 19; 1905, cc. 297, 299, 2002. Summons issues by justice on verified complaint. When the lessor or his assigiis, or his or their agent or attorney, shall make oath in writing, before any justice of the peace of the county in which the demised premises are situated, stating such facts as constitute one of the cases above described, and describing the premises and asking to be put in possession thereof, the justice shall issue a summons recit- ing the substance of the oath, and requiring the defendant to appear before him or some other justice of the county, at a certain place and time (not to exceed five days from the issuing of the summons, with- out the consent of the plaintiff or his agent or attorney), to answer the complaint. The plaintiff or his agent or attoi'ney may in his oath claim rent in arrear, and damage for the occupation of the premises since the cessation of the estate of the lessee: Provided, the sum claimed shall not exceed two hundred dollars; but if he shall omit to make such claim, he shall not be thereby prejudiced in any other action for their recovery. Code, s. 1767: 1868-9, c. 156, s. 20; 1869-70, c. 212. 2003. Service of summons. The officer receiving such summons shall inunediately serve it by the delivery of a copy to the defendant or by leaving a copy at his usual or last place of residence, with 200;l \.\SY)Umi),ETC.—Y. Sitmumr,, Ejectment. Cli. -\r, some adult person, if any such be found there; or, if the detciidaut have no usual place of residence in the county and can not be foxnid therein, by fixing a copy on some conspicuous part of the ])remises claimed. Code, s. 17GS; 18GS-9, c. 156, s. 21. 2004. Judgment by default or confession. The suuuuons shall be returned according to its tenor, and if on its return it shall appear to have been duly served, and if the defendant shall fail to appear or shall admit the allegations of the complaint, the jus- tice shall give judgment that the defendant be removed from, and the plaintiff be put in possession of, the demised premises; and if any rent or damages for the occupation of the premises after tli(> cessation of the estate of the lessee, not exceeding two hundred dol- lars, be claimed in the oath of the plaintiff as due and unpaid, the justice shall inquire thereof, and give judgment as he may find tin- fact to be. Code, s. 1769, e. 156, s. 22. 2005. Trial by justice; jury trial; judgment; execution. If the defendant by his answer .shall deny any material allegation in the oath of the plaintiff, the justice shall hear the evidence and give judgment as he shall find the facts to be. If either party shall demand a trial by jury, it shall be granted under the rules pre- scribed by law for other trials by jury before a justice; and if the jury shall find that the allegation in the plaintiff's oath, which enti- tles him to be put in possession, is true, the justice shall give judg- ment that the defendant be removed from and the plaintiff put in possession of the demised premises, and also for such rent and damages as shall have been assessed by the jury and for costs ; and shall issue his execution to carry the judgment into effect. Code, s. 1770; 1868-9, e. 156, s. 23. 2006. Damages assessed to time of trial. On appeal to the superior court, the jury trying the issue joined shall as.sess the damages of the plaintiff for the detention of his possession to the time of the trial in that court, and judgment for the rent in arrear and for the damages as.sessed may, on motion, be rendered against the sureties to the appeal. Code, s. 1775; 1868-9, c. 156, s. 28. 2007. Rent and cost tendered by tenant. If, in any action brought to recover the possession of demi.sed premises upon a foi'- feiture for the nonpayment of rent, the tenant, before judgment given in such action, shall pay or tender the rent due and the costs, of the action, all further proceedings in such action - or after sun- 632 -077 LIQUORS— /r. Dispensaries. Ch. 49 ^I't on any clay. The prices at which liquor shall be sold shall be lixed by the dispensary commissioners. All sales shall be for cash and at a profit not to exceed eighty per centum of the cost thereof. No liquor shall be sold in any dispensary except in unbroken pack- ages or bottles, which shall contain not less than one-half pint and not more than one quart. The manager of a dispensary shall pro- hibit loafing, loitering or drinking on the premises. It shall be the duty of the manager, when ordered by the board of dispensary commissioners, to keep a register, on which shall be kept a record of the names of persons to whom any liquors are sold, the quantity sold, price paid, and date of sale. Such register shall be open only to the insjjection of the dispensary commissioners and its employees, and the contents thereof shall not be published. jSTo intoxicating liquors shall be sold to any minors, and the dispensary commissioners shall make such rules and regulations not inconsistent with this chapter as may be proper for the management of the dispensary. 1903, c. 23.'?, s. 14; 1905, c. 458. 2077a. Unlawful to sell except in dispensary. In any town in which a dispensary is established under the provisions of this chap- ter, it shall be unlawful for any person to sell or otherwise dispose of for gain any intoxicating liquors otlier than in the manner pro- vided for sales in the dispensary as aforesaid. 1903, c. 233, s. 15. 2078. Proceeds disposed of. The dispensary commissioners shall make quarterly settlements with the governing body of the city or towm in which any dispensary may be situated, and such gov- erning body shall, within ten days after such settlement, pay one- half of the net profits of such dispensary into the treasury of such city or town, and the other half into the treasury of the county in which such city or town is located, for the benefit of the public schools of said county. 1903, c. 233, s. 16. V. Special Acts. 2079. Not repealed. Nothing in this chapter shall be construed to repeal, alter or amend any special act' prohibiting or regiilating the sale of liquors in any locality, township, county or incorporated city or town, or the manufacture of liquors in any incorporated eith- er town having not less than one thousand population. 1903, 0. 233, s. 19; 1905, e. 339, s. 3. XoTE. For crimes arising from violations nf tliis chapter, see Crimes, sub- chapter Liquors. 633 2080 LTQUOES— T. Special Arts. Cli. 4'.t 2080. Place of delivery, place of sale. The place where delivery uf any si>irituous, malt, vinous, iVnnented or other intoxicatins: liquors is made in the state of North Carolina shall be construed and held to be the place of sale thereof; and any station or other place within said state to which any person shall ship or convey any spiritiious, malt, vinoias, fermented or other intoxicating liquors for the purpose of delivering or carrying the same to a purchaser shall be construed to be the place of sale : Provided, that this section shall not be construed to prevent the delivery of any spirituous, malt, vinous, fermented or other intoxicating liquors to druggists in suffi- cient quantities for medical purposes only: Provided further, that this section shall not be construed to prevent the shipment of such intoxicating liquors to duly licensed dealers in the same in any town or city where the sale of such liquors is not prohibited by law. All liquors or mixtures thereof, by whatever name called, that will pro- duce intoxication shall be construed and held to be intoxicating liquors within the meaning of this section: Provided, that this sec- tion shall apply to the following counties and toAvnships in Xorth Carolina, and none other, viz. : The counties of Alleghany, Ashe, Burke, Bertie, Bladen, BrunsAvick, Buncombe, Cabarrus, Caldwell, Carteret, Catawba, Cherokee, Cleveland, Craven, Cumberland, Du- plin, Durham, Forsyth, Franklin, Gaston, Gates, Graham, Guil- ford, Harnett, Haywood, Hyde, Iredell, Johnston, Lincoln, Macon. Mecklenburg, Mitchell, Montgomery, Moore, Northampton, Orange, Perquimans, Randolph, Robeson, Rutherford, Scotland, Union, Vance, Wake, Warren, Watauga and Y'ancey; and in Goldsboro township, Wayne county; Nashville and Manning townships in Nash county ; Lake Waccamaw, Pine Bluff, Whiteville and Cliad- bourn townships in Columbus county, and Kinston township in Lenoir coiinty. 190.5, ec. 301, 4.'32. 440, 821. osl MAERIAGE— 7. Hov Contrarted. Ch. 50 CHAPTER 50. MARRIAGE. Sections. I. How contracted, 2081 II. Contracting parties, 2082 — 2085 III. The license, 2086—2092 I. How CONTEACTED. 2081. What constitutes. The consent of a male and female per- son who may lawfully marry, presently to take each other as hus- band and wife, freely, seriously and plainly expressed by each in the presence of the other, and in the presence of an ordained minis- ter of any religious denomination or of a justice of the peace and the consequent declaration by such minister or officer that such j^er- sons are man and wife, shall be a valid and sufficient marriage: Provided, that the right of marriage among the Society of Friends, according to a form and custom peculiar to themselves shall not be interfered with by the provisions of this or any other section of this chapter. Code, s. 1812; 1871-2, c. 193, s. 3. II. Contracting Parties. 2082. Who may marry. All unmarried male persons of sixteen years, or upwards, of age, and all unmarried females of fourteen years, or upwards, of age, may lawfully marry, except as herein- after forbidden. Code, s. 180D; R. C, e. 68, s. 14; 1871-2, c. 193. 2083. Who may not marry. All marriages between a white per- son and a negro or Indian, or between a white person and person of negro or Indian descent to the third generation, inclusive, or between a Croatan Indian and a negro, or between a Croatan Indian and a person of negro descent to the third generation, inclusive, or between any two persons nearer of kin than first cousins, or between a male person under sixteen years of age and any female, or between a female person under fourteen years of age and any male, or between persons either of whom has a husband or wife living at the time of such marriage, or between persons either of whom is at the time physically impotent, or is incapable of contracting from want of i'OS:j M.UUn\GE^I[. Coulrarliii;/ I'arllcs. Cli. :.n will or understanding, shall be void : Provided, that no marriage followed by cohabitation and the birth of issue shall be declared void lifter the death of either of the parties for any of the causes stated in this section, except for that one of the parties was a white person, and the other a negTO or Indian, or of ncgTO or indian descent to tliu third generation, inclusive, and for bigamy. Code, s. 1810; R. C, c. 68, ss. 7, 8, 9 ; 1871-2, c. 103, s. 2; ISST, o. 245. Note. See Divorce and Alimony, s. 1560. 2084. Prohibited degrees of icinship. Whenever the degree of kinship shall be estimated M'ith the view to ascertain the right of kinspeople to marry, the half-blood shall be counted as the whole- blood: Provided, that nothing herein contained shall be so con- strued as to invalidate any marriage heretofore contracted in case where by counting the half-blood as the whole-blood the persons con- tracting such marriage would be nearer of kin than first coiisins ; but in every such case the kinship shall be ascertained by counting relations of the half-blood as being only half so near kin as those of the same degree of the whole blood. Code, s. 1811; 1879, c. 78. 2085. Marriages between slaves validated. Persons, both or one of whom were formerly slaves, who have complied with the pro- visions of section five, chajDter forty, of the acts of the general assem- bly, ratified March tenth, one thousand eight hundred and sixty- six, shall be deemed to have been lawfully married. Code, s. 1842; 1860, c. 40, s. 5. III. The License. 2086. Unlawful to perform ceremony without. Xo minister or officer shall ]ierform a ceremony of marriage between any two per- sons, or shall declare them to bo naan and wife, until there shall be delivered to him a license for the marriage of the said persons, signed by the register of deeds of the county in which tlie marriage is intended to take place, or by his lawful deputy. Code, s. 1S13; 1871-2, c. 193, s. 4. 2087. Penalty for performing ceremony without. Kvery minis- ter or officer wIki shall marry any ('(iniijc without a license being first delivered to him, as required by law, or after the expiration of such license, or who shall fail to return such license to the register of deeds within two months after any marriage celebrated by virtue thereof, witli the certificate ap])ended thereto duly filled up and lM)S7 MAREIAGE— ///. The License. Cli. 50 signed, shall forfeit and pay two hnndred dollars to any person who shall sue therefor. Code, s. 1817; R. C, c. 68, ss. 6, 13; 1871-2, c. 193, s. 8. Note. For further penalty, see s. 3372. 2088. Issued by register of deeds. Every register of deeds shall, upon application, issue a license for the marriage of any two per- sons: Provided, it shall appear to him probable that there is no legal impediment to such marriage: Provided further, that where either party to the proposed marriage shall be under eighteen years of age, and shall reside with the father, or mother, or uncle, or aunt, or brother, or elder sister, or shall reside at a school, or be an orphan and reside with a gaiardian, the register shall not issue a license for such marriage until the consent in writing of the relation with whom such infant resides, or, if he or she resides at a school, of the person by whom said infant was i;)laced at school, and under whose custody and conti'ol he or she is, shall be delivered to him, and such written consent shall be filed and preserved by the register. And whenever it shall appear to the register of deeds that it is jjroba- ble there is any legal impediment to the marriage of any person for whom a license is aj^plied he shall have power to administer to the person so applying an oath toueliing the legal capacity of said parties to contract a marriage. Code, s. 1814; 1887, c. 331; 1871-2, c. 193, s. 5. 2089. Form of license. License shall be in the following or some equivalent form: To any ordained minister of any religious denomination, or to any justice of the peace for county: A. B. having applied to me for a license for the marriage of C. D. (the name of the man to he written in full) of (here state his residence), aged. . . .years (race, as the case may be), the son of (here state the father and mother, if known; state whether they are living or dead, and their residence, if known; if any of these facts are not known, so state), and E. F. (write the name of the woman in full) of (here state her residence), aged. , . .years (race, as the case may be), the daughter of (here state the names and residences of the parents, if known, as is required above with respect to the man). (If either of the parties shall be under eighteen years of age, the license shall here contain the following:) And the written consent of G. H., father (or mother, etc., as the case may be) to the proposed marriage having been filed with me, and there being no legal impediment to such marriage known to me, you are hereby authorized, at any time within one year from the date hereof, to celebrate the proposed marriage at any place within the said county. You are required, within two months after you shall have celebrated such marriage, to return this license to me at my office with your signature subscribed to the certificate under this license, and with the blanks therein filled according to the facts, under penalty of forfeiting two hundred doll.irs to the use of any person who shall sue for the same. Issued this. . . .day of 19. . . . L. M., Kegister of Deed« of County. 20S9 MAKRIAGE— ///. The License. Ch. 5n Every register of deeds shall designate in every marriage license' issued the race of the persons proposing to marry by inserting in the blank after the word "race" the words "white," "colored" or "Indian" as the ease may be. The certificate shall be filled np and signed by the minister or officer celebrating the marriage, and also be signed by one or more witnesses present at the marriage, who shall add to their names their places of residence, as folloM's : I. N. 0., an ordained minister of (here state to what religious denomination, or justice of the peace, as the case may be), united in matrimony (here name the parties), the parties licensed above, on the. . . .day of 19. . . ., at the house of P. R., in (here name the town, if any, the township and county), according to law. K. 0. Witnesses present at the marriage: S. T., of (here give the residence). Code, s. 1815; 1899, c, 541, ss, 1, 2; 1871-2, c, 193, s. G. 2090. Penalty for issuing unlawfully. Every register of deeds who shall knowingly or without reasonable inquiry, personally or by deputy, issue a license for the marriage of any two persons tc which there is any lawful impediment, or where either of the per- sons is imder the age of eighteen years, without the consent require'! by law, shall forfeit and pay two hundred dollars to any parent, gniardian, or other person standing in loco pai'entis who shall sue for the same. Code, s. 1816; 1895, c, 387; 1901, c. 722; R. C, c. C8, s. 13; 1871-2, c. 193, s. 7. 2091. Record of, kept by register of deeds; original filed. Ev- ery register of deeds shall keep a book (which shall be furnished on demand by the board of county commissioners of his county) on the first page of which shall be written or printed : "Record of marriage licenses and of returns thereto, for tin county of , from the .... day of , 19 . . . to the .... day of , 19 . . , both inchisive." In said book shall be entered alphabetically, according to the names of the proposed husbands, the substance of each marriage license and the return thereupon as follows: The book shall be divided by lines with columns which shall be properly headed, and in the first of these, beginning on the left, .shall be put the date of issue of the license ; in the second, the name in full of the intended husband, with his residence ; in the third, his age ; in the fourth, his race and color; in the fifth, the name in full of the intended wife, with her residence; in the sixth, her age; in the seventh, her race and color ; in the eighth, the name and title of the minister or oflicer who celebrated the marriage; in the ninth, the day of the celobra- L^091 MARRIAGE—///. The License. Ch. 50 tion ; in the tenth, the place of the celebration ; in the eleventh, the names of all or at least three of the witnesses who signed the return as i^resent at the celebration. The original license and return thereto shall be filed and preserved. Code, s. 1818; 1899, e. .541, s. 3; 1871-2, c. 103, s. 9. 2092. Penalty for failure to record license and the return. Any register of deeds who shall fail to record, in the manner above prescribed, the substance of any marriage license issued by him, or who shall fail to record, in the manner above prescribed, the substance of any ret^irn made thereon, within ten days after such return made, shall forfeit and pay two hundred dollars to any person who shall sue for the same. Code, s. 1819; 1871-2, e. 19.3, s. 10. CHAPTER 51. MARRIED WOMEN. Sections. I. Separate estate of, 2093—2101 II. Rights and liabilities of liusband.s. 2102—2106 III. Contracts between husband and wife, 2107 — 2108 IV. Divorce and separation, 2109 — 2111 V. Free traders, 2112—2118 I. Sepaeate Estate of. 2093. Secured; disposed of by will; conveyed with husband's written assent. The real and personal property of any female in this state, acquired before marriage, and all property, real and per- sonal, to which she may, after marriage, become in any manner entitled, shall be and remain the sole and separate estate and prop- erty of such female, and shall not be liable for any debts, obliga- tions or engagements of her husband, and may be devised and bequeathed, and, with the written assent of her husband, conveyed by her as if she were unmarried. . Const., Art. X, s. 6. Note. For purchase money mortgage executed by husband alone, see s. 308.5. 2094. Can not contract without husband's consent. No wo- man during her coverture shall be capable of making any contract to affect her real or personal estate, except for her necessary per- .sonal expenses, or for the suppoi-t of the family, or siich as may 2094 MAERIED WOMEN— 7. Separate Estate. Ch. 51 be necessary in order to pay her debts existing before marriage, without the written consent of her husband, unless she be a free trader, as hereinafter allowed. Code, s. 1826; 1871-2, o. 193, s. 17. Note. For laborer's and material liens against, see s. 2016. 2095. May draw checks. Bank deposits made by or in the name of a married woman shall be paid only to her or on her order, and her check, receipt or acquittance shall be valid in law to fully dis- charge the bank from any and all liability on account thereof. 1891, c. 221, s. 30; 1893, c. 344. 2096. What leases require joinder of husband and privy exam- ination. No lease or agreement for a lease or sublease or assignment b^' any married woman, not a free trader, of her lands or tenements, or chattels real, to run for more than three years, or to begin in pos- session more than six months after its execution, or any conveyanc<' of any freehold estate in her real property, shall be valid, unless the same be executed by her and her husband, and proved or acknowl- edged by them, and her free consent thereto, appear on her examina- tion separate from her husband, as is now or may hereafter bo required by law in the probate of deeds of femes covert. Code, s. 1834; 1871-2, c. 193, s. 26. 2097. Land of, not sold or leased without their consent; hus- band's interest exempt from execution. No real estate belonging at the time of marriage to females, married since the third Monday of November, one thousand eight hundred and forty-eight, nor any real estate by them subsequently acquired, nor any real estate acquired on and since the first day of March, one thousand eiglii hundred and forty-nine, by femes covert, Avho were such on the said third Monday of November, one thousand eight hundred and forty-eight, shall be subject to be sold or leased by the husband for the term of his omti life or any less term of years, except by and with the consent of his wife, first had and obtained, to be ascertained and eifectuated by deed and privy examination, according to the lilies required by law for the sale of lands belonging to femes covert. And no interest of the husband whatever in such real estate shall be subject to sale to satisfy any execution obtained against him ; and every such sale is hereby declared null and void. Code, s. 1840: E. C, c. 56; 1848, c. 41. 2098. May make a will. Every married woman shall have power to devise and lieqiieatli her real and iicr.sonal estate as if sjie were a feme sole; and her will shall be proved as is re(]nireil of other wills. • Code, s. 1839; 1871-2, o. 193, s. 31. 2099 irARKIED WOMEN—/. Separate Estate. Ch. 51 2099. May insure husband's life. Any feme covert in her own name, or in the name d to a person as 2191 NEGOTIABLE IIS^STS.— F/. Indorsement. Ch. 54 cashier or other tiscal officer of a bank or corporation it is deemed prima facie to be payable to the bank or corporation of which he is such officer, and may be negotiated by either the indorsement of the bank or corporation or the indorsement of the officer. 1899, c. 733, s. 42. 2192. Name of payee wrong, how indorsed. Where the name of a payee or indorsee is wrongly designated or misspelled he may indorse the instrument as there described, adding, if he thinlv fit, his proper signature. 1899, c. 733, s. 43. 2193. Indorser in representative capacity may negative per- sonal liability. Where any person is under obligation to indorse in a representative capacity he may indorse in siich terms as to negative personal liability. 1899, c. 733, s. 44. 2194. Undated, presumed, before due. Except where an in- doi'sement bears date after the maturity of the instrument, every negotiation is deemed prima facie to have been effected before the instrument was overdue. 1899, c. 733, s. 45. 2195. Presumed made at place of date of instrument. Except wh^re the contrary appears, every indorsement is presumed prima facie to have been made at the place where the instnunent is dated. 1899, c. 733, s. 46. 2196. Once negotiable, continues so till discharged. An instru- ment negotiable in its origin continues to be negotiable until it has been restrictively indorsed or discharged by payment or otherwise. 1899, e. 733, s. 47. 2197. Holder may strike out; effect of. The holder may at any time strike out any indorsement which is not necessary to his title. The indorser whose indorsement is struck out and all indorsers sub- sequent to him are thereby relieved from liability on the instru- ment. 1899, c. 733, s. 48. 2198. Transfer without, makes non-negotiable till indorsed. Where the holder of an instrument payable to his order transfers it for value without indorsing it, the transfer vests in the transferee such title as the transferrer had therein, and the transferee acquires in addition the right to have the indorsement of the transferrer. But for the purpose of determining whether the transferee is a holder 2198 XEGOTIABLE IXSTS.— TT. indorsement. Ch. 54 in due course, the negotiation takes effect as of the time when the indorsement is actually made. 1899, c. 733, s. 40. 2199. Negotiation back to prior party releases intermediate parties. Where an instrument is negotiated back to a prior party, such party may, subject to the provisions of this chapter, reissue and further negotiate the same. But he is not entitled to enforce pay- ment thereof against any intervening party to whom he was per- sonally liable. 1899, c. 733, s. 50. VII. Rights of Holder. 2200. IVIay sue in his own name. The holder of a negotiable instrument may sue thereon in his own name, and payment to him in due course discharges the instrument. 1899, c. 733. s. 51. 2201. What constitutes holder in due course. A holder in due course is a holder who has taken the instrument under the fol- lowing conditions: (1) That the instrument is complete and regular upon its face; (2) that he became the holder of it before it was overdue and without notice that it has been previously dishonored, if such was the fact; (3) that he took it for good faith and value; (■i) that at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it. 1899, c. 733, s. 52. 2202. Delay in presenting when on demand. Where an instru- ment payable on demand is negotiated an unreasonable length of time after its iss\ie, the holder is not deemed a holder in due course. 1899, c. 733. s. 53. 2203. Effect of notice of infirmity. Where the transferee received notice of any infirmity in the instrument or defect in the title of the person negotiating the same before he has paid the full amount agreed to be jDaid therefor, he will be deemed a holder in due course only to the extent of the amount theretofore paid by him. 1899, c. 733, s. 54. 2204. Fraud, duress or force in obtaining, makes title void. The title of a i:)erson who negotiates an instrument is defective within the meaning of this chapter when he obtained the instrument, or any signature thereto, by fraud, duress or force and fear or other unlawful means, or for an illegal consideration, or when he nego- 2204 :NEG0TIABLE1'NSTS.— VII. Birjhis-of Holder. Ch. 54 tiates it in breach of faith or under such circumstances as amount to a fraud. 1899, c. 733, s. 55. 2205. Actual knowledge necessary to constitute notice of in- firmity. To constitute notice of an intirmit}' in the instrument or defect in the title of the person negotiating the same the person to whom it is negotiated must have had actual knowledge of the infirm- ity or defect or knowledge of such facts that his action in taking the instrument amounted to bad faith. 1899, e. 73.3, s. 56. 2206. Free from defect, in title of prior parties. A holder in due course holds the instrument free from any defect of title of prior parties, and free from defenses available to prior parties among themselves, and may enforce payment of the instrument for the full amount thereof against all parties liable thereon. 1899, c. 733, s. 57. 2207. Holds as non-negotiable, when. In the hands of any holder other than a holder in due course a negotiable instrument is subject to the same defenses as if it were non-negotiable. But a holder who derives his title through a holder in due course and who is not himself a j^arty to any fraud or illegality affecting the instru- ment has all the rights of such former holder in respect of all par- ties prior to the latter. 1899, c. 733, s. 58_. 2208. Deemed prima facie in due course. Every holder is deemed prima facie to be a holder in due course ; but when it is shown that the title of any person who has negotiated the instrument was defective, the burden is on the holder to prove that he or some person under, whom he claims acquired the title as a holder in due course. But the last-mentioned rule does not apply in favor of a party who became bound on the instrument prior to the acquisition of such defective title. 1899, c. 733, s. 59. VIII. Liability of Parties. 2209. Maker's admissions and engagements. The maker of a negotiable instrument by making it engages that he will pay it according to its tenor, and admits the existence of the payee and his then capacity to indorse. 1899, c. 733,' s. 60. 2210 XEGOTIAPyLE IXSTS.— T77/. LiahilUy of Part. Ch. 54 2210. Drawer's admissions and engagements. The drawer by drawing tiie instrument admits the existence of the payee and his then capacity to indorse, and engages that on due presentment the instrument will be accepted or paid, or both, according to its tenor, and that if it be dishonored and the necessary proceedings on dishonor be duly taken, he will pay the amount thereof to the holder or to any subsequent indorser M'ho may be compelled to pay it. But the drawer may insert in the instrument an express stipulation nega- tiving or limiting his own liability to the holder. 1899, c. 733, s. 61. 2211. Acceptor's engagements. The acceptor by accepting the instrument engages that he will pay it according to the tenor of his acceptance; and admits (1) existence of the drawer, the genuineness of his signature and his capacity and authority to draw the instru- ment; and (2) the existence of the i^ayee and his then capacity to indorse. 1899, c. 733, s. 62. 2212. Who deemed indorsers. A person placing his signature upon an instrument otherwise than as maker, drawer or acceptor is deemed to be an indorser, unless he clearly indicates by appropri- ate words his intention to be boimd in some other capacity. 1899, c. 733, s. 63. 2213. Signing in blank, liable as indorser. Where a person not otherwise a party to an instrument places thereon, his signature in blank before delivery he is liable as indorser in accordance with the following rules: (1) If the instrument is payable to the order of a third person he is liable to the payee and to all subsequent parties; (2) if the instrument is payable to the order of the maker or drawer, or is payable to bearer, he is liable to all parties subsequent to the maker or drawer; (3) if he signs for the accommodation of the payee he is liable to all parties subsequent to the payee. 1899, c. 733, s. 64. 2214. Delivery or qualified indorsement warrants what. Every person negotiating an instrument by delivery or by a qualified indorsement warrants (1) that the instrument is genuine and in all respects what it purports to be; (2) that he has a good title to it; (3) that all prior parties had capacity to contract; (4) that he has no knowledge of any fact which would impair the validity of the instrument or render it valueless. But when the negotiation is by delivery only the warranty extends in favor of no holder other than the immediate transferee. The provisions of subdivision three of 1'1'U NEGOTIABLE I XSTS.—r///. LiahUitu of Part. Ch. 54 iliis section do not apply to persons negotiating public or corporate securities other than bills and notes. 1899, c. 733, s. 65. 2215. Indorser without qualification warrants what. Every indorser who indorses without qualiiication warrants to all subse- quent holders in due course (1) the matters and things mentioned in subdivisions one, two and three of the next preceding section ; and (2) that the instrument is at the time of his indorsement valid and subsisting. And in addition he engageg that on due presentment it shall be accepted or paid, or both, as the case may be, according to its tenor, and that if it be dishonored and the necessary proceed- ings on dishonor be duly taken he will pay the amount thereof to the holder or to any subsequent indorser who may be compelled to pay it. 1899, c. 733, s. 66. 2216. Indorser of instrument negotiable by delivery. Where a person places his indorsement on an instriuncnt negotiable by deliv- ery he incurs all the liabilities of an indorser. 1899, c. 733, s. 67. 2217. In order of their indorsement. As respects one another, indorsers are liable prima facie in the order in which they indorse; but evidence is admissible to show that as between or among them- selves they have agreed otherwise. Joint payees or joint indorsees who indorse are deemed to indorse jointly and severally. 1899, c. 733. s. 68. 2218. Broker or agent negotiating without indorsement. Where a broker or other agent negotiates an instrument without indorse- ment he incurs all the liabilities prescribed by section two thousand two hundred and fourteen, unless he discloses the name of his princi- pal and the fact that he is acting only as agent. 1899, c. 733, s. 69. IX. Peesentjient for Paymext. 2219. When necessary; when not. Presentment for payment is not necessary in order to charge the person primarily on the instru- ment ; but if the instrument is by its terms payable at a special place, and he is able and willing to pay it there at maturity, such ability and willingness are equivalent to a tender of payment upon his part. But, except as herein otherwise provided, presentment for payment is necessary in order to charge the drawer and indorsers. 1899, c. 733. s. 70. fior 2220 NEGOTIABLE TXSTS.— Z.Y. Presentment. Cli. 54 2220. At what time. Where the instrument is not payable ou demand, presentment must be made on the day it falls due. Where it is ijayable on demand, presentment must be made within a reason- able time after its issue, except that in the case of a bill of exchange presentment for payment will be sufficient if made within a rea- sonable time after the last negotiation thereof. 1899, c. 733, s. 71. 2221. How made. Presentment for pa.>anent to be sufficient must be made (1) by the holder or by some person authorized to receive payment on his behalf; (2) at a reasonable hour on a business day; (3) at a proper place as herein defined; (4) to the person primarily liable on the instrument, or, if he is absent or inaccessible, to any person found at the place where the presentment is made. 1899, c. 733, s. 72. 2222. Proper place for. Presentment for payment is made at the projjer place (1) where a place of payment is specified in the instrument and it is there presented; (2) where no place of paj-ment is specified but the address of the person to make the paj'ment is given in the instrument, and is there presented; (3) where no place of payment is specified and no address is given and the instru- ment is presented at the usual place of business or residence of the person to make payment; (4) in any other case if presented to the person to make payment wherever he can be found, or if j^resented at his last known place of business or residence. 1899, c. 733, s. 73. 2223. Instrument exhibited to party, delivered when paid. The instrument must be exhibited to the person from whom payment is demanded, and, when it is paid, must be delivered up to the party paying it. 1899, c. 733, s. 74. 2224. Payable at bank, how made. Where the instrument is payable at a bank presentment for pajanent must be made during banking hours, imless the person to make payment has no fimds there to meet it at any time during the day, in which case present- ment at any hour before the bank is clo.sed on that day is sufficient. 1899, c. 733, s. 75. 2225. When made to personal representative. Where the per- son primarily liable on the instrument is dead, and no place of pay- ment is specified, presentment for payment must be made to his personal representative, if such there be, and if with the exercise of reasonable diligence he can be found. 1899, c. 733, s. 76. 2226 NEGOTIABLE IjSTSTS.— /Z. Presentment. Ch. 54 2226. How made to partners. Where the persons primarily lia- ble on the instrument are liable as partners and no place of payment is specified, presentment for payment may be made to any one of them, even though there has been a dissolntion of the firm. 1899, c. 733, s. 77. 2227. To persons severally liable. Where there are several per- sons not parties primarily liable on the instrument and no place of payment is specified, presentment must be made to them all. 1899, c. 733, s. 78. 2228. When not required to charge drawer. Presentment for payment is not required in order to charge the drawer where he has no right to expect or require that the drawee or acceptor will pay the instrument. 1899, c. 733, s. 79. 2229. Not required to charge indorser, when. Presentment for payment is not required in order to charge an indorser where the instrument was made or accepted for his accommodation, and he has no reason to expect that the instrument will be paid if pre- sented. 1899, c. 733, 3. 80. 2230. Delay in making, when excused. Delay in making pre- sentment for payment is excused when the delay is caused by cir- cumstances beyond the control of the holder and not impiitable to bis default, misconduct or negligence. When the cause of delay ceases to operate presentment miist be made with reasonable dili- gence. 1899, c. 733, s. 81. 2231. Dispensed with, when. Presentment for payment is dis- pensed with (1) where after the exercise of reasonable diligence presentment as required by this chapter can not be made; (2) where the drawee is a fictitious person; (3) by waiver of presentment, express or implied. 1899, c. 733. s. 82. 2232. What constitutes. The instrument is dishonored by non- payment when (1) it is duly presented for payment and payment is refused or can not be obtained; or (2) presentment is excused and the instrument is overdue and unpaid. 1899, c. 733, s. 83. 2233. Dishonor gives right of action against those secondarily liable. Subject to the provisions of this chapter, when the instrument 2233 XEGOTIABLE INSTS.— /A'. Presentment. Ch. 5-t is dishonored by noupavment, an immediate right of recourse to all parties secondarily liable thereon acciiies to the holder. 1899, c. 733, s. 84. 2234. When negotiable instruments payable. Every negotiable instrument is payable at the time fixed therein with grace as allowed by the succeeding section. When the day of maturity falls upon Sun- day or a holiday the instrument is payable on the next succeeding business day. Instruments falling due on Saturday, when it is a holiday, are to be presented for payment on the next succeeding busi- ness day, except that instruments payable on demand may at the ojition of the holder be presented for payment before twelve o'clock noon on Saturday, when that entire day is not a holiday. 1899, c. 733, s. 85. 2235. Days of grace, what allowed. All bills of exchange paya- ble within the state, at sight, in which there is no express stipulation to the contrary, shall be entitled to days of grace as the same are allowed by the custom of merchants on foreign bills of exchange payable at the expiration of a certain period after date or sight : Pro- vided, that no days of grace shall be allowed on any bill of exchange, promissory note, or draft payable on demand. Code, s. 43; 1905, c. 327. 2236. Time, how computed. Where the instrument is payable at a fixed period after date, after sight, or after the happening of a specified event, the time of payment is determined by excluding the day from which the time is to begin to run and by including the date of payment. 1899, c. 733, s. 86. 2237. Instrument payable at bank is an order to bank to pay. Where the instrument is made payable at a bank it is equivalent to an order to the bank to pay the same for the account of the princi- pal debtor thereon. 1899, e. 733, s. 87. 2238. Payment in due course, what is. Payment is made in due course when it is made at or after the maturity of tlic instru- ment to the holder thereof in good faith and M'ithout notice that liis title is defective. 1899, c. 733. s. 88. X. XoTicE OF Dishonor. 2239. Effect of failure to give. Except as herein otherwise pro- vided, when a negotiable instrument has been dishonored by non- I'L'.IO InTEGOTIABLE INSTS.— X. DisJwnor. Ch. 54 aicej^tance or nonpayiiient, notice of dishonor must be given to the 1 1 rawer and to each indorser, and any drawer or indorser to whom such notice is not given is discharged. 1899, c. 733. s. 89. 2240. By whom given. The notice may be given by or on behalf of the holder or by or on behalf of any party to the instrument who might be compelled to pay it to the holder, and who upon taking it up woiild have a i-ight to reimbursement from the party to whom notice is given. 1899, c. 733, s. 90. 2241. May be given by agent. Notice of dishonor may be given by an agent either in his own name or in the name of any i^arty entitled to give notice, whether that party be his principal or not. 1899, c. 733, s. 91. 2242. Who benefited by holder's notice. Where notice is given by or on behalf of the holder, it inures to the benefit of all subse- quent holders and all prior parties who have a right of recourse against the party to whom it is given. 1899, c. 733, s. 92. 2243. Given by a party inures to benefit of holder and subse- quent parties. Where notice is given by or on behalf of a party entitled to give notice it inures to the benefit of the holder and all parties subsequent to the party by whom notice is given. 1899, e. 733, s. 93. 2244. Agent may give to principal or parties. Where the iustru- ment has been dishonored in the hands of an agent he may either him- self give notice to the parties liable thereon or he may give notice to his principal. If he give notice to his principal he must do so within the same time as if he were the holder, and the principal upon the receipt of such notice has him.self the same time for giv- ing notice as if the agent had been an independent holder. 1899, c. 733, s. 94. 2245. Defects of, not to invalidate unless party misled. A writ- ten notice need not be signed and an insufficient written notice may be supplemented and validated by verbal communication. A mis- description of the instrument does not vitiate unless the party to whom the notice is given is in fact misled thereby. 1899, c. 733. s. 9.5. 2246. Terms of, may be oral or written. The notice may be in writing or merely oral and may be given in any terms which suffi- 2246 XEGOTIABLE IXSTS.— A". Dishonor. Ch. 54 ciently identify the instrument and indicate that it has been dishon- ored by nonacceptance or nonpayment. It may in all cases be given by delivering it personally or through the mails. 1899, e. 733, s. 96. 2247. May be given to party or agent. Is'otice of dishonor may be given either to the party himself or to his agent in that behalf. 1899, c. 733, s. 97. 2248. When given to personal representative. When any party is dead and his death is known to the party giving notice, the notice must be given to a personal representative if thei-e be one, and if with reasonable diligence he can be found. If there is no personal representative, notice may be sent to the last residence or last place of business of the deceased. 1899, c. 733, s. 98. 2249. To partner for firm. When the parties to be notified are partners, notice to any one partner is notice to the firm even though there has been a dissolution. 1899, c. 733, s. 99. 2250. Joint parties, eacil notified. Notice to joint parties who are not partners miist be given to each of them unless one of them has authority to receive such notice for the others. 1899, c. 733. s. 100. 2251. To trustee in banlcn accepted for honor supra protest or contains a reference in case of need, it must be protested for nonpayment before it is presented for payment to the acceptor for honor or referee in case of need. 1899, c. 733. s. 167. 683 2318 ]STEGOTIABLE IKSTS.— A'T7. Acceptance, etc Ch. 54 2318. How presented for payment. Presentment for payment to the acceptor for honor must be made as follows: (1) If it is to be presented in the place where the protest for nonpayment was made it must be presented not later than the day following its maturity; (2) if it is to be presented in some other place than the j^lace where it was protested, then it must be forwarded within the time in this chapter specified. 1899, c. 733, s. 168. 2319. Delay in presenting to acceptor for honor or referee in case of need excused, when. The provisions of section two thou- .sand two hundred and thirty apply where there is delay in mak- ing presentment to the acceptor for honor or referee in case of need. 1899, c. 733. s. 169. 2320. Protest when not paid by acceptor. When the bill is dishonored by the acceptor for honor it must be protested for non- payment by him. 1899, c. 733. s. 170. XVII. Payjient foe Honok. 2321. After protest. Where a bill has been protested for non- payment any person may intervene and pay it supra j^rotest for the honor of any person liable thereon or for the honor of the per- son for whose account it was drawn. 1899, c. 733, s. 171. 2322. IVIust be attested by notarial act of honor. The payment for honor supra protest in order to operate as such and not as a mere voluntary payment must be attested by a notarial act of honor, which may be appended to the protest or form an extension to it. 1899, c. 733, s. 172. 2323. Notarial act of honor, on what founded. The notarial act of honor must be founded on a declaration made by the payer for honor or by his agent in that behalf declaring his intention to pay the bill for honor and for whose iionor he pays. 1899, c. 733. s. 173. 2324. Who given preference in. wiicre two or more persons offer to pay a bill for the honor of different i)arties the person whose payment will discharge most parties to the bill is to be given the preference. 1899, c. 733, s. 174. L':;25 ]STEGOTIABLE INSTS.— ZF//. Payment, etc. Ch. 54 2325. Discharges all subsequent parties. Where a bill has been ]iaid for honor all parties subsequent to the party for whose honor it is paid are discharged, but the payer for honor is subrogated for and succeeds to both the rights and duties of the holder as regards rlie party for whose honor he pays and all parties liable to the latter. 1899, c. 733, s. 175. 2326. Refusing payment forfeits rights. Where the holder of r. bill refuses to receive payment supra protest he loses his right of recourse against any party who would have been discharged by such pajTnent. 1899, c. 733, s. 176. 2327. Payer for honor entitled to bill and protest. The payer for honor on paying to the holder the amount of the bill and the notarial expenses incidental to its dishonor is entitled to receive both the bill itself and the protest. 1899. c. 733. s. 177. XVIII. Bills in a Set. 2328. Constitute one bill. Where a bill is drawn in a set, each part of the set being numbered and containing a reference to the other parts, the whole of the parts constitute one bill. 1899, c. 733. s. 178. 2329. Two or more parts negotiated, holder whose title first accrues owner. Where two or more parts of a set are negotiated to different holders in due course the holder whose title first accrues is, as between such holders, the true owner of the bill. But nothing in this section aft'ects the rights of a person who in due course accepts or pays the part first presented to him. 1899, c. 73.3. s. 179. 2330. Indorser liable for all he indorses. Where the holder of a set indorses two or more parts to different persons he is liable on every such part, and every indorser subsequent to him is liable on the part he has himself indorsed as if such parts were separate bills. 1899, c. 733, s. 180. 2331. Acceptor liable for all he accepts. The acceptance may be written on any part and it must be written on one part only. If the drawee accepts more than one part and such accepted parts are negotiated to different holders in due course he is liable on every such part as if it were a separate bill. 1899, c. 733. a. 181. 685 2332 NEGOTIABLE IXSTS.— XT7//. Bills in a Set. Ch. 5-t 2332. Payment of part does not release from outstanding ac- cepted part. When the acceptor of a bill drawn in a set pays it without requiring the part bearing his acceptance to be delivered up to him, and that part at maturity is outstanding in the hands of a holder in due course, he is liable to the holder thereon. 1899, c. 733, s. 182. 2333. Payment of one part discharges whole, when. Except as herein otherwise provided where any one part of a bill drawn in a set is discharged by payment or otherwise the whole bill is dis- charged. 1899, c. 733. s. 183. XIX. Peomissoey Notes axd Checks. 2334. Negotiable promissory note defined. A negotiable prom- issory note within the meaning of this chapter is an unconditional promise in writing made by one person to another, signed by the maker, engaging to pay on demand or at a fixed or determinable future time a sum certain in money to order or to bearer. Where a note is drawn to the maker's own order it is not complete until indorsed by him. 1899, c. 733. s. 184. 2335. Check defined, law governing. A check is a bill of e.\- cliange drawn on a bank payable on demand. Except as herein otherwise provided the provisions of this chapter are applicable to a bill of exchange payable on demand apply to a check. 1899, c. 733, s. 185. 2336. Failure to present in reasonable time discharges drawer. A check must be presented for payment within a reasonable time after its issue or the drawer will be discharged from liability thereon to the extent of the loss caused by the delay. 1899, c. 733, s. 186. 2337. Certification of check an acceptance. Where a check is certified by the bank on which it is drawn the certification is equivalent to an acceptance. 1899, c. 733, s. 187. 2338. Certification discharges drawer and indorsers. WHiere the holder of a check procures it to be acccjitcd or certified the drawer and all indorsers are discharged froni liability thereon. 1899, c. 733, s. 188. 2339 NEGOTIABLE IXSTS.—Z7X. Notes and Cliecls. Ch. 54 2339. Check not assignment of funds. A check of itself does not oijerate as an assignment of any part of the funds to the credit of the drawer with the bank, and the bank is not liable to the holder unless and until it accepts or certifies the check. 1899, e. 733, s. 189. XX. Genekai. Provisioxs. 2340. Terms defined. In this chapter, unless the context other- wise requires — "Acceptance" means an acceptance completed by delivery or notifi- cation. "Action" includes counterclaim and setoff. "Bank" includes any person or association of persons carrying on the business of banking, whether incorporated or not. "Bearer" means the person in possession of a bill or note which is payable to bearer. "Bill" means bill of exchange, and "note" means negotiable prom- issory note. "Delivery" means transfer of possession, actual or constructive, from one person to another. "Holder" means the payee or indorsee of a bill or note who is in possession of it, or the bearer thereof. "Indorsement" means an indorsement completed by delivery. "Instrument" means negotiable instniment. "Issue" means the first delivery of the instrument, complete in form, to a person who takes it as a holder. "Person" includes a body of persons, whether incorporated or not. "Value" means valuable consideration. "Written" includes printed, and "writing" includes print. 1899, e. 733, s. 191. 2341. Rules of construction. Where the language of the instru- ment is ambiguous or there are omissions therein, the following rules of construction apply : 1. Where the sum payable is expressed in words and also in fig- ures and there is a discrepancy between the two, the sum denoted by the words is the sum payable ; but if the words are ambiguous or imcertain, reference may be had to the figures to fix the amount. 2. Where the instrument is not dated it will be considered to be dated as of the time it was issued. 3. Where there is conflict between the written and printed pro- visions of the instrument the written provisions prevail. 4. Where the instrument is so ambiguous that there is doubt whether it is a bill or a note the holder may treat it as either at his election. 687 2341 ISTEGOTIABLE IXSTS.— XT. General Provisions. Ch. 54 5. "Where a signature is so placed upon the instrument that it is not clear in what capacity the person making the same intended to sign, he is to be deemed au indorser. 6. Where an instrument containing the words "I promise to pay" is signed by two or more persons, they arc deemed to be jointly and severally liable thereon. 1899, c. 733, s. 17. Note. For time from which interest runs, see s. 1952. 2342. Who primarily and secondarily liable. The person pri- marily liable on an instrument is the person who by the terms of the instrument is absolutely required to pay the same. All other parties are secondarily' liable. 1899, c. 733, s. 192. 2343. Reasonable time determined by usage. In determininu- what is reasonable time or an unreasonable time regard is to Ih' had to the nature of the instrument, the usage of trade or business (if any) with respect to such instruments and the facts of the par- ticular case. 1899, c. 733. s. 193. 2344. Law merchant applicable. In any case not provided for in this chapter the rules of the law merchant shall govern. 1899, c. 733, s. 196. 2345. This chapter not retroactive. The provisions of this chap- ter do not apply to negotiable instruments made and delivered prior to the eighth day of March, one thousand eight hundred and ninety- nine. 1899, c. 733, s. 197. 2346. This chapter not to authorize certain things. Nothing in this chapter shall authorize the enforcement of an authorization to confess judgment or a Avaiver of homestead and personal property exemptions or a provision to pay counsel fees for collection incorpo- lated in any of the instruments mentioned in this chapter; but the mention of such provisions in such instrumonts shall not affect the other terms of such instruments or the negotiability thereof. 1899, c. 733, s. 197; 1905, c. 327. Note. Instruments falling due on Sunday or holidays, see s. 2234. From what time interest to run, see Interest, s. 1952. 2347 ISTOTARIES. Ch. 55 CHAPTEE 55. NOTARIES. (Sections 2347—2352.) 2347. Appointed by governor; qualified before clerk. The gov- ernor may, from time to time, at his discretion, appoint one or more fit persons in every covmty, to act as notaries public, who shall hold their office for two years from and after the date of their appoint- ment ; and on exhibiting their commission to the clerk of the superior court of the county in which they are to act, shall be duly qualified, by taking before said clerk an oath of ofiice, and the oaths prescribed for oificers. Code, s. 3304; R. C, c. 75; 1777, c. 118, s. 15; 1881, c. 317. 2348. Commission; record of qualification by clerk. The gov- ernor shall issue to each a commission, a certificate of which shall be deposited Avith the clerk of the court, and filed among the records, and he shall note on his minutes the qualification of the notary public. Code, s. 3305; R. C, c. 75, s. 2. 2349. Clerks notaries ex officio; may certify own seals. The clerks of the superior court may act as notaries public, in their several counties, by virtue of their ofiice as clerks, and may certify their notarial acts under the seals of their respective courts. Code, s. 3306; R. C, c. 75, s. 3; 1833, c. 7, ss. 1, 2. 2350. May take probates, administer oaths, etc. Notaries public, in and out of the state, shall have power to take and certify the acknowledgment or proof of powers of attorney, mortgages, deeds and other instrument of writing, to take depositions and to adminis- ter oaths and affirmations in matters incident or belonging to the duties of their office, and to take affidavits to be used before a court, judge or other officer, within the state, and shall have power to take the privy examination of femes covert. Code, s. 3307; 1866, c. 30; 1879, c. 128. Note. For powers of notary of another state, see s. 990. 2351. May exercise power in other than own county. Notaries public shall have full power and authority to perform the functions of their office in any and all counties of the state, and full faith and Rev. Vol 1—40 689 2351 XOTARIES. Ch. 55 credit shall be given to any of their official acts wheresoever the same shall be made and done. 1891. e. 248. 2351a. Must state expiration of commission. Notaries public shall state after each otfieial siy-nature l>y them the date of the expira- tion of their commissions; but the failure to do so shall not thereby invalidate their official acts. 2352. Seal. Official acts by notaries public shall be attested by their notarial seals. CHAPTEE 5(;. OATHS. (Sections 2353—2.36.3.) 2353. Oaths administered with solemnity. Whereas, lawful oaths for the discovery of truth and establishing right are itecessary and highly condticive to the important end of good government; and being most solemn appeals to Almighty God, as the omniscient witness of trutli and the jttst and omnipotent avenger of falsehood, sttch oaths, therefore, otight to be taken and administered with the utmost solemnity. R. C, c. 70. s. 1; 1777, c. 108. s. 2. 2354. How administered. Judges and justices of tlie peace, and other persons who may be empowered to administer oaths, shall (except in the cases in this chapter excepted) require the party sworn, to lay his hand tipon 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 lie justly (]e]iri\'ed of all the bh-ssing of the Gosjiel, and made liable to that vengeance which he lias imprecated on his own head ; and he shall kiss the Holy Gospel, as a seal of confirmation to the said engagements. Code, s. 3309; R. C, c. 76, s. 1; 1777, c. 108, s. 2. 2355. Who may be sworn with uplifted hand; form of affirma- tion. When tlie ]ierson to be sworn shall be conscientiously scru])u lous of taking a book oath in manner aforesaid, he shall be excuscil L':;55 OATHS. Cli. 56 iVum laying hands upon, or touching the Holy Gospel; and the oath I' [nired shall be administered in the following manner, namely: He ^-liall stand with his right hand lifted up towards heaven, in token 'if his solemn appeal to the Supreme God, and also, in token that if he should swer\-e from the truth he would draw down the ven- L;(ance of heaven upon his head, and shall introduce the intended oath .with these words, namely: I, A. B., do appeal to God, as a w-itnesg of the truth and the avenger of false- hood, as I shall answer the same at the great day of judgment, when the secrets of all hearts shall be known, (etc., as the words of the oath may be). Code, s. 3310; R. C, e. 76, s. 2; 1777, e. 108, s. 3. 2356. How Quakers, Moravians, etc., affirm. The solenm atfir- mation of (Quakers, iluravians, Dunkers and ]\Icnnonists, made in the manner heretofore used and accustomed, shall be admitted as evidence in all civil and criminal actions; and in all cases where they are required to take an oath to support the constitution of the state, or of the United States, or an oath of office, they shall make their solemn affirmation in the words of the oath beginning after the word "swear"; which affirmation shall be effectual to all intents and purposes. Code, s. 3311; R. C, e. 76, s. 3; 1777, c. 108, s. 4: 1777, c. 115, s. 42; 1819, c. 1019; 1821, c. 1112. 2357. Oath to support constitution of United States; form of; all officers to take. All members of the general assembly, and all officers who shall be elected or appointed to any office of trust or profit within the state, shall, agreeably to act of congress, take the following oath or affirmation: I, A. B., do solemnly swear (or affirm, as the case may be) that I will sup- port tlie constitution of the United States; so help me, God. Which oath shall be taken before they enter upon the execution of the duties of the office. Code, s. 3313; R. C, c. 76, s. 5; 1791, c. 342, s. 2. 2358. Oath or affirmation to support constitution; form of; taken by all officers. Every member of the general assembly, and every person who shall be chosen or appointed to hold any office of trust or profit in the state, shall, before taking his seat or entering upon the execution of the office, take and subscribe the following oath or affirmation : I, A. B., do solemnly and siucerelj' swear (or alTinn) that I will 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 constitu- tion of said state, not inconsistent with the constitution of the United States, to the best of my knowledge and ability; so help me, God. 691 2358 • OATHS. Ch. 56 ^Vhere such person sliall be of the people called Quakers, Mora- vians, Mcunonists or Dunkers, he shall take and subscribe the ful- lowing affirmation : I. A. B., do solemnly and sincerely declare and affirm that I will truly and faithfully demean myself as a peaceful citizen of North Carolina ; that I will be subject to the powers and authorities that are or may be established for the good government thereof, not inconsistent with the constitution of the st;ite and the constitution of the United States, either by yielding an active or passive obedience thereto, and that I will not abet or join the enemies of the state, by any means, in any conspiracy whatever, against the state; that I will disclose and make known to the legislative, executive or judicial powers of the state all treasonable conspiracies which I shall know to be made or intended against the state. Code, s. 3312; E. C, c. 76, s. 4; 1781, c. 342, s. 1. 2359. When deputies may administer. In all cases where any civil officer, in the discharge of his duties, is ijermitted by the law to administer an oath, the deputy of such officer, when discharging such duties, shall have authority to administer it, provided he is a sworn officer; and the oath thus administered by the deputy shall be as obligatory as if administered by the principal officer, and shall be attended with the same penalties in case of false swearing. Code, s. 3316; R. C, c. 76, s. 7; 1836. c. 27, s. 2. 2360. Oaths of sundry persons, forms of. The oaths of office to be taken by the several persons hereafter named, shall be in the words following the names of said persons respectively: ADMINISTKATOE. You swear (or affirm) 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 according to law; and that all other duties appertaining to the charge reposed in you, you will well and truly perform, according to law, and with your best skill and ability; so help you, God. ATTORNEY AT LAW. 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. ATTORNEY GENERAL, STATE SOLICITORS AND COUNTY ATTORNEYS. I, A. B., do solemnly swear (or affirm) that I will well and trulj' serve the State of North Carolina in tne office of attorney general (solicitor for the State or attorney for the state in the county of ) ; I will, in the exe- cution 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 abilitv; so help me, God. AUDITOR. I, A. B., do solemnly swear (or affirm) that 1 will well and truly execute the trust reposed in me as auditor, without favor or partiality, according to law, to the best of my knowledge and ability; so help me, God. 2;;(i() OATHS. Ch. 5G BOOK DEBT OATH. You swear (or affirm) that the matter in dispute is a book account; 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 yourself; and you further swear that the account rendered by you is just and true; and that you have given all just credits; so help you, God. BOOK DEBT OATH FOR ADMINISTRATOR. You, as e.xecutor or administrator of A. B., swear (or affirm) that you verily believe this account to be just and true, and that thei-e are no witnesses, to your knowledge, capable of proving the delivery of thel 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. CLERK OF THE SUPREME COURT. I, A. B., do swear (or affirm) that, by myself or any other person, I neither have given, nor will give, to any person whatsover, 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, or offered to sell, nor will I sell, or offer to sell, my interest in the said office; I also solemnly swear that I do not, directly or indirectly, hold any other lucrative office in this State; I do further swear that I will execute the office of clerk of the supreme coui-t without preju- dice, favor, affection or partiality, to the best of my skill and ability; so help me, God. CLERK OF THE SUPERIOR COURT. I, A, B., do swear (or affirm) that, by myself or any other person, I neither have given, nor will I give, to any person whatsoever, any gratuity, fee, gift or reward, in consideration of my election or appointment to the office of clerk of the superior court for the county of ; nor have I sold, or offered to sell, nor will I sell or offer to sell, my interest in the said office; I also solemnly swear 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 for the county of without prejudice, favor, affection or par- tiality, to the best of my skill and ability; =o help me, God. COMMISSIONERS ALLOTTING A YEAR'S PROVISIONS. You and each of you swear (or affirm) that you vfiW lay off and allot to the petitioner a year's provisions for herself and family, according to law, and with your best skill and ability; so help you, God. COMMISSIONERS DIVIDING AND ALLOTTING REAL ESTATE. You and each of you swear (or affirm) that, in the partition of the real estate now about to be made by you, you will do equal and impartial justice among the several claimants, according to their several rights, and agreeably to law; so help voii, God. COMMISSIONER OF WRECKS. I, A. B., do solemnly swear (or affirm) that I will truly and faithfully dis- charge the duties of a commissioner of wrecks, for the district of , in the county of , according to law; so help me, God. CONSTABLE. 1, A. B., do solemnly swear (or affirm) that I will well and truly serve the state of North Carolina in the office of constable; I will see and cause the peace of the state to be well and truly preserved and kept, according to my power; 2360 OATHS. Cli. -V; 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 hreach 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 makr resistance with force, 1 will make hue and cry, and will pursue them according to law, and will faithfully and without delay execute and return all lawful pre- cepts 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 constable, so long as I shall continue in office; so help me, God. COTTON WEIGHER FOR PUBLIC. I , public weigher for the city of (or as the case may be), do solemnly swear that I will justly, impartially and without any deduction, except as may be allowed by law, weigh all cotton that may be brought to me for that purpose, and tender a true account thereof to tht parties con cenied, if required so to do; so help me, God. ENTRY-TAKER. I. A. B., do solemnly swear (or affirm) that I will well and impartially dis- charge the several duties of the office of entrj'-taker for the county of according to law: so help me, God. EXECUTOR. You swear (or allirm) that you believe this writing to be and contain the la.st 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 according to law; so help you, God. FINANCE COMMITTEE. I, A. B., do solemnly swear (or affirm) that I will diligently inquire into all matters relating to the receipts and disbursements of county funds and a true report make, without partiality; so help me, God. GRAND JURY— FOREMAN OF. You, as foreman of this gi-and inquest for the body of this county, shall dili- gently inquire and true presentment make of all such matters and things a< 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 en\-j', hatred or malice : neither shall you leave any one unpresented for fear, favor or affection, reward or the hope of reward; but you shall present all things truly, as they come to vuur knowledge, according to the best of your understanding; -so help you, God. GRAND JURORS. Tlic same oath which your foromnin hath taken on his part, you and each of you shall well and truly observe and keep on your part ; so help you, God. GRAND JURY— OFFICER OF. You swear (or affirm) (hat you will faithfiiUy carrj' all papers sent from the court to the grand jury, or from the grand jury to the court, without alteration or erasenient, and without disclosing llic contents therof; so help you, God. 004 1 i':3r,o OATHS. • Ch. 56 JURY— OFFICER OF. You swear (or allirin) that you will keep every person, sworn pf this jury, together in some private or 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. JURY, IN A CAPITAL CASE. You swear (or affirra) that you will well and truly try, and true deliverance make, between the state and the prisoner at the bar, whom you shall have In charge, and a true verdict give according to the evidence; so help you, God. JURY, IN CRIMINAL ACTIONS NOT CAPITAL. You and each of you swear (or affirm) that you \vill well and truly try all issues in criminal actions which shall come before you 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.") JURY, IN CIVIL ACTIONS. You and each of you swear (or affirm) that you will well and truly try all civil actions which shall come before you during this term, and true verdicts give according to the evidence; so help you, God. (The same oath to talesmen, by using the word "day" instead of "term.") JURY, LAYING OFF DOWER. You and each of you swear (or affirm) that you will, without partiality and according to your best judgment, lay off 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. JURY, LAYING OFF ROADS AND ASSESSING DAMAGES. 1, A. B., do solemnly swear (or affirm) that I will lay out the road, directed to be laid out by the board of commissioners of the county, to the greatest ease and advantage of the inhabitants, and with as little prejudice to the owners of land over which the same shall be laid out as may be; and will truly and impartially assess the damages which may be awarded by me for injuries done to lands by the laying out of said road, without favor, affection, malice or hatred, to the best of my skill and knowledge; so help me, God. JUDGE OF THE SUPREME COURT. I, A. B., do solemnly swear (or affirm) that in my office of justice of the supreme court of North Carolina I will administer Justice without respect to persons, and do equal right to the poor and the rich, to the state and to individ- uals; and that I will honestly, faithfully and impartially perform all the duties of the said office according to the best of my abilities, and agreeably to the constitution and laws of the state; so help me, God. JUDGE OF THE SUPERIOR COURT. I, A. B., do solemnly swear (or affirm) that I mil well and truly serve the state of North Carolina in the office of judge of the superior court of the said state; I 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 695 2360 OATHS. Ch. 5G or by any other person, any fee, gift, gratuity or reward whatsoever, for any matter or thing by nie to be done by virtue of my oIKce, except the fees and salary by laiv appointed; I will not maintain, by myself or by any other per- son, privately or openly, any plea or quarrel depending in any of the said courts; I will not delay any person of common right by reason of any letter or command from any person or persons in authority to me directed, or for any other cause whatsoever; and in case any letter or orders come to me contraiy to law, 1 will proceed to enforce the law, such letters or orders notwithstanding; I will not appoint any person to be clerk of any of the said courts but such of the candi- dates as appear to me sufficiently qualified for that olliee; and in all such appoint- ments I will nominate without reward, hope of reward, prejudice, favor or partiality or any other sinister motive whatsoever; and finally, in all things belonging to mj' office, during my continuance therein, I will faithfully, truly and justly, according to the best of my skill and judgment, do equal and impar- tial justice to the public and to individuals; so help me, God. JUSTICE OF THE PEACE. I, A. B., do solemnly swear (or affirm) that as a justice of the peace of the county of , in all articles in the commission to me directed, I will do equal right to the poor and the rich, to the best of my judgment and accord- ing to the laws of the state; I will not, privately or openly, by myself or any other person, be of counsel in any quarrel or suit depending before rae; the fines and amercements 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 willingly 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 mj' office, except such fees as are or may be directed and limited by statute; but well and truly I will perform my oflice of justice of the peace; I will not delay any person of common right, by reason of any letter or order from any person 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 to the parties any warrant by me made, but will direct all such warrants to the sheriffs or constables of the county, or the other officers or ministers of the state, or other indifferent persons, to do execution thereof: and finally, in all things belonging to my 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 public and to individuals; so help me, God. REGISTER OF DEEDS. 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 duties of the office of register of deeds for the county of , in all things according to law; so help me, God. SECRETAKY OF STATE. I, A. B., do swear (or affirm) that I will, in all respects, faithfully and honestly execute the office of secretary of state of the state of North Carolina, during my continuance in office, according to law; so help me, God. SHERIFF. I, A. B., do solemnly swear (or affirm) that I will execute the 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 whatsoever, for returning any man to serve as a juror or for making any false return on any process to me directed; so help me, God. 23(50 OATHS. Ch. 56 STANDARD KEEPER. I, A. B., do swear (or affirm) that I will not stamp, seal or give any certificate for any steelyards, weights or measures, but such as shall, as near as possible, agree with the standard in my keeping; and that I will, in all respects, truly and faithfully discharge and e,xecute the power and trust by law reposed in me, to the best of my ability and capacity; so help me, God. STATE TREASURER. I, A. B., do swear (or affirm) that, according to the best of my abilities and judgment, I will execute impartially the office of state treasurer, in all things according to 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. STRAY VALUERS. You swear (or affirm) that you will well and truly view and appraise the stray, now to be valued by you, without favor or partiality, according to your skill and ability; so help you, God. SURVEYOR FOR THE COUNTY. I, A. B., do solemnly swear (or affirm) that I will well and impartially dis- charge the several duties of the office of surveyor for the county of , according to law; so help me, God. TREASURER FOR A COUNTY. 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 treasurer for the county of , in all things according to law ; that I 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. WITNESS TO DEPOSE BEFORE THE GRAND JURY. You swear (or affirm) that the evidence you shall give to the grand jury, upon this bill of indictment against A. B., shall be the truth, the whole truth, and nothing but the truth; so help j'ou, God. WITNESS IN A CAPITAL TRIAL. You swear (or affirm) that the evidence you shall give to the court and jury in this trial, between the state and the prisoner at the bar, shall be the truth, the whole truth, and nothing but the truth ; so help you, God. WITNESS IN A CRIMINAL ACTION. You swear (or affirm) that the evidence you shall give to the court and jury in this action between the state and A. B. shall be the truth, the whole truth, and nothing but the truth ; so help you, God. WITNESS IN CIVIL CASES. You swear (or affirm) that the evidence you shall give to the court and jury in this cause 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. 2360 OATHS. Ch. 56 WITNESS TO PROVE A WILL. You swear (or allirm) that you saw C. D. execute (or heard him acknowledge the execution of) this writing "as his Uist will and testament; that jou attested it in his presence and at his request; and that at the time of its execution (or at the time the execution was acknowledged) he was, in your opinion, of sound mind and disposing niemorj'; so help you, God. GENERAL OATH. Any officer of the state or of any county or township, the form of whose oath is not given above, shall take an oath in the following form : I, A. B., do swear (or affirm) that I will well and truly e.xecute the duties of the office of according to the best of my skill and ability, according to law; so help me, God. Code, ss. 3057, 3315; 1903, c. 604; 1874-5, c. 58, s. 2 : E. C, c. 7G. s. 6. 2361. County surveyors may administer oaths, when. The coinity surveyors of the several counties are eiii|)0\\ercd to administer oaths to all such persons as are required by law to be sworn in making partition of real estate, in la_ying off widows' dower, in establishing boundaries and in surveying vacant lands under warrants. Code, s. 3314; 1881, c. 144. 2362. Administered by certain officers. The chairman of the board of county commissioners and the chairman of tJie board of education of the several counties shall have power to adminis- ter oaths, in any matter or hearing before their respective boards. 1899, c. 89; 1889, c. 529. Note. For power of sheritT to administer oath in homestead allotment, see s. 687. For power of register of deeds to administer oaths, see s. 2088. 2363. Certain oaths validated. All oaths and affidavits made prior to the first day of March, one thousand eight hundred and ninety-nine, administered by authorized officers to persons with up- lifted hands be and the same are hereby validated and made as legal and binding as if administered to persons laying hands on and kiss- ing tlie Holy Evangelists of Almighty God, whether said oaths and affidavits were made by persons conscientiously scrupulous of taking a "book oath" or not, and whether sticli oiiths and affidavits were made in other respects in strict compliance with section two thou- satid three hundred and fifty-four: Provided, that this section shall not affect the rights of the parties in actions now pending nor in any manner affect prosecutions for ])cvjurv claimed to have brcn lierelo- fore committed. 1899, c. 50. 2364 OFFICES. Ch. CHAPTEE 57. OFFICES. (Sections 2304— 2.308. ) 2364. No person shall hold more than one office. Xo person who shall hold any office or place of trust or profit under the United States, or any department thereof, or imder this state, or under any other state or government, shall hold or exercise any other office or ])lace of trust or profit under the authority of this state, or be eligi- ble to a seat in either house of the general assembly: Provided, that nothing herein contained shall extend to officers in the militia, jus- tices of the peace, commissioners of public charities, or commissioners for special purposes. Const., Art. XIV, s. 7. 2365. Penalty for holding office contrary to constitution. If any person shall |iresume to hold any office, or place of trust or profit, or be elected to a seat in either house of the general assembly, con- trary to the seventh section of the fourteenth article of the constitution of the state, he shall forfeit and pay two hundred dollars to any per- son who will sue for the same. Code, s. 1870; E. C, c. 77. s. 1: 1790, c. 319: 1792, e. 366; 1793, c. 393; 1796, c. 4.50; 1811. c. 811. 2366. Bargains made for office void. All bargains, bonds and assurances made or given for the purchase or sale of any office what- soever, the sale of which is contrary to law, shall be void. Code, .s. 1871; R. C, c. 77, s. 2; 5 and 6 Edw. VI., c. 16, s. 3. 2367. Must take oath before acting; penalty for failure. Every officer and otlier ]iersi)u who may be required to take an oath of office, or an oath for the faithful discharge of any duty imposed on him, and also the oath appointed for such as hold any office of trust or profit in the state, shall take all said oaths before entering on the duties of the office, or the duties imposed on such person, on ])ain of forfeiting five hundred dollars to the use of the poor of the county in or for which the office is to be u.sed, and of being ejected from his office or place by proper proceedings for that purpose. Code, s. 1873; R. C, c. 77, s. 4. 2368 OFFICES. Cli. 57 2368. Persons holding, deemed doing so lawfully; hold until their successors are qualified. Any person who shall, by the proper authority, be admitted and sworn into any office, shall be held, deemed, and taken, by force of such admission, to be rightfully in such office, until, by judicial sentence, \ipon a proper proceeding, he shall be ousted therefrom, or his admission thereto be, in due course of law, declared void; and all officers shall continue in their respective offices until their successors shall have been elected or appointed, and shall have been duly qualified. Code, s. 1872; R. C, c. 77, s. 3; 1844. c. 38, s. 2; 1848, c. 6*, s. 1; Const., Art. IV, s. 25. Note. For penalty for acting as officer witliout giving bond, see s. 278. CHAPTER 58. OYSTERS AND FISH. Sections. I. Terrapin, 2369—2.370 ir. Oyster beds. 2371—2382 III. Catching oysters, 2383 — 2402 IV. Oyster industry regulated. 2403—2422 V. Clams. 2423 VI. Fishing. I. Terrapin. 2424—2484 2369. Use of drag-nets by nonresidents for catching terrapin forbidden. If any person who is not a citizen and who has not resitled in the state continuously for the preceding two years shall use any drag-net or other instrument for catching terrapin he shall be guilty of a misdemeanor. Code, ss. 3375, 3376. 2370. Diamond-back terrapin protected. If any person shall take or catch any diamond-back terrapin between the fifteenth day of April and the fifteenth day of August of any year, or any diamond- back terrapin at any time, of less size than five inches in length upon the bottom shell, or shall interfere with, or in any manner de- stroy any eggs of the diamond-back terra])in, he shall be gtiilty of a misdemeanor, and .shall be fined not less than five dollars, nor more than ten dollars, for each and every diamond-back terrapin so taken or caught, and a like sum for each and every egg interfei'ed with or destroyed: Provided this section shall not apply to parties empowered I'.JTO OYSTEKS AND FISH— 7. Terrapin. Ch. 58 by the state to propagate the said diamond-back terrapin; and the possession of any diamond-back terrapin between the fifteenth days of April and August shall be prima facie evidence that the person having the same has violated this section. It shall be the duty of all sheriffs and constables to give immediate information to some jus- tice of the peace of any violation of this section. Code, s. 3377; 1899, c. 582; 1881, c. 115, ss. 1, 6. II. Oystee Beds. 2371. Natural, defined. A natural oyster or clam bed, as distin- giiished from an artificial oyster or clam bed, shall be one not planted by man, and is any shoal, reef or bottom where oysters are to be found growing in siifficient quantities to be valuable to the public. 1893, c. 287, s. 1. 2372. Planted in certain territory. Any inhabitant of this state may make a bed in any of the waters of this state, except that part designated as lying south of Roanoke and Croatan sounds and north of Core sound, and lay down or plant oysters or clams therein, hav- ing first obtained license as hereinafter directed from the superior court clerk of the county wherein such bed may be, and he may stake oiit the grounds so as to include not exceeding ten acres with good and substantial stakes, extending at least two feet above high water- mark, and placed at such intervals as to make the boundaries of such bed or garden distinctly kno^vn ; and every person who shall obtain such license shall hold the same and have exclusive privilege thereof to him, his heirs and assigns. But no person may have more than one such bed in the same county: Provided, nothing herein shall be con- strued to affect the rights of any owner or proprietor of lands in which there may be creeks or inlets, or which may be adjacent to any navigable waters, or to authorize any person to appropriate to his own use, or to stake off and enclose any natural oyster or clam bed, or in anywise to infringe the common right of the citizens of the state to any such natural bed or to obstruct the free navigation of the waters aforesaid. Code, s. 3390; 1883, c. 332, ss. 1, 2. 2373. How license is obtained. Whenever a license is desired according to the preceding section the clerk of the superior court of the county wherein the proposed oyster or clam bed may be may, in his discretion, grant a license to make such oyster or. clam bed to any inhabitant of this state who shall apply therefor as herein provided; such applicant shall first stake off the proposed oyster or clam bed as provided in the preceding section, and shall publish a notice for thirty 2373 OYSTERS AND FISH—//. Oyster Beds. Ch. 58 clays at the courthouse door of the county wherein said bed is pro- posed, designating the location thereof as near as may be and the day when he will apply for the issuing such license. Upon the day iiamed in said notice, upon which application for such license is to be made, any inhabitant of such county shall have the right to appear before said clerk and object to the issuing of such license b}' filing an affidavit stating that the proposed oyster or clam b?d is a natural oys- ter or clam bed. Jf the said applicant shall refuse to file an affidavit denying the ])roposed oyster or clam bed is a natural bed, the said clerk shall refuse to grant such license. If such applicant shall file an affidavit denying that such proposed bed is a natural bed, it shall be the duty of s\ich clerk to transmit said affidavits to the next terra of the court of said county, and at said term the issue shall be tried to determine whether the proposed bed is a natural bed, and after such trial the said clerk shall grant or refuse said license in accordance with the judgment rendered u])on the dctcrniination of such issue. Code, s. 3391; 1893, c. 287, s. 2. 2374. County commissioners to cause survey to be made. The board of county commissioners may in their discretion cause to be made, not oftener than once in twelve months, a survey and exam- ination of any and every such oyster or clam bed or garden in their county, the result of which examination or survey shall be reported luider oath to the clerk of the superior court; and if it be found that the holder of such license as aforesaid has included within his stakes any natural oyster or clam bed, or a space containing more than ten acres, he shall forfeit such license and all the rights and jirivileges thereto belonging; further, if the holder of such license fail for the space of two years either to iise such bed or to keep it projicrly des- ignated by stakes, he shall forfeit such license and all the rights and privileges therein granted. Code, s. 3392; 1883, c. 332, s. 4. 2375. Under control of the state. The state shall exercise exclu- sive jurisdiction and control over all shell-fisheries which are or may be located in the boundaries of the state south of Roanoke and Croa- tan sounds and north of Core soimd, and for the purposes of this chapter the southern boundary line of Hyde county shall extend from the middle of Ocracoke inlet to the Royal Shoal lighthouse, thence across Pamlico sound and Avith the middle line of the Pamlico and Pungo rivers to the dividing line between the coimties of Hyde and Beaufort, and the northern bouiulary line of Carteret county shall extend from the middle of Ocracoke inlet to the Royal Shoal lighthouse, thence to the Brant Tshiud Shoal lighthouse, llieucc across Pamlico sound to a point midway lietwccn ilaw point anil 1' :::> OYSTERS AND FISH— 77. Oyster Beds. Ch. 58 T'lnt of IMarsh, aud thence with the middle line of the Neuse river \'< the dividing line between the counties of Carteret, Craven or I'nmlico, and that portion of Pamlico sound and the Xeuse and l';nulico rivers not within the boundaries of Dare, Hyde or Carteret (bounties, and not a part of any other county, shall be in the coimty of Pamlico, and for the purposes of this cliapter and in the execu- tion of the requirements thereof, the shore line as now defined by the United States coast and geodetic survey shall be accepted as correct. 1887, c. 119, ss. 1, 2. 2376. How beds entered. Any person a citizen and bona fide resident of the state desiring to raise, plant or cultivate shell-fish upon any ground in the county, and within the territory described in the preceding section, which has not been designated as public ground by the board of shell-fish commissioners and which is not a natural clam or oyster bed, may make ajjplication in writing, in which shall be stated as nearly as may be the area, limits and loca- tion of the ground desired, to the entry-taker of the county in which tlie said ai'ea for which application is made is situated, for a fran- chise for the purpose of raising or cultivating shell-fish in said grounds, and the said entry-taker having received said appli- cation shall proceed as with all other entries as provided in the chapter entitled Grants, except that the warrant to survey and locate the ground or grounds shall be delivered to the engineer appointed by the secretary of state and not to the county surveyor; and the said engineer shall make such surveys in accordance with the pro- visions of the chapter entitled Grants, except that it shall not be nec- essary to employ chainbearers nor to administer oaths to assistants, nor to make surveys, according to the priority of the application or Avarrant. No entry shall be made to cover any natural oyster or clam bed as defined in this chapter, nor of any land lying more than two miles from the main land or from any island. 1887, c. 119, s. 5; 1893, c. 272. 2377. How leased. Any person who is and has been continuously for two years a bona fide resident of the state of North Carolina and over twenty-one years of age may lease or enter not more than fifty acres of any bottom where oysters do not naturally gi'ow or on any ground where there is not a sufiicient growth of oysters to justify at the time of leasing the gathering of the same for profit. When any person desires to lease or enter any such gTound he shall adver- tise the fact at the courthouse and three other ]3laces for four weeks in the county where said bottom desired to be leased is located, and advertise in some newspaper published in said county for four Aveeks, 2377 OYSTEES AND FISH—//. Oyster Beds. Ch. 58 and if there be none published in said county, then in a newspaper published in an adjoining county. Application for such land shall be made to the clerk of the superior court, who shall appoint a man and the applicant shall choose another, which two so chosen shall ap- point a third man and the three shall constitute a board of arbitration, and the said board of arbitration shall inspect the bottom desired. to be leased, and if they find the same subject to lease and so report to the clerk, then it shall be the duty of the said clerk to issue a lease as herein provided, and for such service the clerk shall receive the fol- lowing fees, to-wit: Twenty-five cents for the application, twenty-five cents for the appointment and twenty-five cents for filing the report of arbitration, and copy-sheet fees for recording such lease and other papers necessary to be recorded. Such bottom shall be surveyed by the county surveyor; all cost and expense to be paid by the lessee, who shall also pay a yearly rental of fifty cents per acre, which rental shall be paid to the oyster conunissioner and go to the benefit of the oyster fund. A failure to pay rental for two years shall render the lease null and void. No bottom which has been surveyed prior to sixth day of March, one thousand nine hundred and five, need lie re-surveyed where such leases are plainly marked at that time. Tin- county sun'eyor shall furnish the lessee a map or plot free of charjjc. No lease shall be issued for any ground closer than two liundriMl yards to any natural oyster bed. 1905, c. 525, s. 2. 2378. Secretary of state to issue grant; amount granted lim- ited. The secretary of state, on receipt of the auditor's certificate as provided in the chapter on Grants, shall gi'ant to the applicant a written instrument conveying a perpetual franchise for the pur- pose of raising and cultivating shell-fish in and to the grounds for which application is made ; and the said written instrument of con- veyance shall be authenticated by the governor, countersigned by the secretary and recorded in his ofiice. The date of the application for the franchise and a description of the groimd for which such fran- chise was granted shall be inserted in each instnuuent, and no grant shall issue except in accordance with a certificate from tlie engineer appointed by the secretary of state as to the area, limits and location of the grounds in which the said franchise is to be granted, and every person obtaining such grant or franchise shall, within three months from the receipt of the same, record said written instrument in the office of the register of deeds for the coimty wherein the said grounds may lie and shall define the boundaries of the said grounds by suitable stakes, buoys, ranges or monuments; but no francbiso shall be given in or to any of the public grounds as determined In- the commissioners of shell-fisheries, or to any natural oyster or chim 704 £>:;7S OYSTEES AND FISH— //. Oyster Beds. Ch. 58 bed, and all franchises granted under this section or any previons law shall be and remain in the grantee, his heirs and legal represen- tatives: Provided, that the holder or holders shall make in good faith within five years from the da}'^ of obtaining said franchise an actual effort to raise and cultivate shell-fish on said grounds. No grant shall be made to any one person of more than ten acres of any territory, and no person shall hold more than ten acres in any creek unless the same shall be acquired through devise, inheritance or marriage. 1887, c. 119, s. 6; 1803, c. 272. 2379. Price paid for franchise. Not less than seventy-five cents per acre shall be paid to the state treasurer for all franchises granted, and in all other respects as to protests of entry and the right of the secretary of state to sell to any one else at an increased price the chapter on Grants shall apply. 1887, c. 119, s. 7. 2380. Liable to taxation. All grounds taken up or held for the purpose of cultivating shell-fish shall be subject to taxation as real estate, and shall be so considered in the settlement of the estates of deceased or insolvent persons. 1887, c. 119, s. 9. 2381. B00l shall be guilty of a misdemeanor. 1901, e. 113; 1897, e. 333; 1899, c. 579; 1903, cc. 131, 414, 658, 732. VI. FisiiixG. 2424. Croatan marshes. If any person, for the jjurpose of tak- ing fish, shall between the first day of February and the first day of May, of the same j'ear, use or cause to be used, at or within half a mile of the marshes separating the waters of Croatan and Pamlico sounds, any weir, hedge, net or seine, he shall be guilty of a misde- meanor. Code, s. 3378; R. C. c. 81, s. 4; 1844, c. 40, s. 3. 2425. Masonboro and Myrtle Grove sound. If any person shall use any P3'ke nets or set down seines, or place any fish trap for the purpose of catching fish in the waters of Masonboro and ilyrtle Grove sounds in New Hanover county, he shall be guilty of a misde- meanor, and fined not more than fifty dollars, or imprisoned not more than twenty days. Code, s. 3421; 1883, c. 288, ss. 1, 2. 2426. Catching oysters in Myrtle Grove sound. If any person shall take or catch any oysters from ^lyrtle Grove sound, from Per- rines or "Whitaker's creek to the head waters of said sound in New Hanover county, from the first day of May until tlie first day of Sep- tember, e.xcept for his own consumption, he shall be guilty of a mis- demeanor, and fined not more than fifty dollars or imprisoned not more than twenty days. Code, s. 3423; 1883, c. 358, ss. 1, 2. 2427. Lay days for Pamlico river. If any iierson, from the fif- teeutli day of February to {\w teutli day of May of every year, from '2i27 OYSTERS AND FISH— TT. Fishing. Ch. 58 twelve o'clock meridian of Saturday until sunrise Monday morn- ing of each week, shall fish any seine, set net, drift-net, or any other net of any name or kind whatever, in the waters of Pamlico or Tar rivers and tributaries, except bow or skim nets, .he shall be guilty of a misdemeanor. Code, s. 3416; 1883, c. 137, s. 3. 2428. Fishing dutch nets in Pamlico and Tar rivers. If any person shall set down or fish any dutch, jwd, pyke or pound net or net of like kind in the waters of Pamlico or Tar rivers or their tribu- taries except iu the manner, and in the part, and during the time, which such nets are by law allowed to be fished, he shall be guilty of a misdemeanor, and shall be fined not less than fifty dollars nor more than one hundred dollars, and shall be imprisoned in the county jail not less than thirty and not more than sixty days. Code, s. 3417; 1903, c. 52. 2429. Dutch nets in Pamlico river. It shall be lawful to fish with dutch, pod, pj'ke or other pound nets, or nets of like kind, in the waters of Pamlico river below a line beginning on the southern shore of Pamlico river at Maule's Point, and running due north to a point on the northern shore of said river : Provided, that no dutch, pod, pyke or pound net, or other net of like kind, shall extend out in said river more than one-eighth of the distance across said river fi-om the shore, and that none of said dutch, pod, pyke or pound nets shall be set, placed down or fished nearer to each other than five hundred yards, measuring up and down the river ; nor shall they be placed, set down or fished within five hundred yards of any seine beach in actual use for hauling a seine, nor within one mile of the mouth of Bath creek : Provided, no nets of the kind enumer- ated in this section, or other nets of like kiud, shall be placed down, set or fished in said rivers between the tenth day of May and the first day of July in any year. Whenever any person shall complain to the oyster commissioner or any inspector that dutch, pod or pyke nets, or other nets of like kind, have been placed down or set in any of the waters of Pamlico river, or in any of its tributaries, contrary to and in violation of this section, said oyster commissioner or inspector, or person performing the duties of such, shall at once visit said river, make a complete and full examination of all dutch, pod or pyke nets, or other nets of like kinds in said river, and ascertain whether they are placed doAvn, set or fished in violation of the pro- visions of this section, and he shall report to the solicitor of the dis- trict in which the offense is committed. Code, s. ,3417; 1903, c. 52. 2430 OYSTERS AND FISH— T/. Fishing. C'li. 58 2430. Dutch nets in Currituck sound. If any firm, compauy or corporation shall* operate or cause to bo operated in the waters of Currituck county, or to be interested in (in any manner whatsoever) more than six-pound or dutch nets, or use more than one hundred yards of hedging to a net, or set a stand of such nets exceeding eight hundred yards in length from land to the extreme outward end ; or if any person shall set any jjound or dutch nets to the east of the center of Currituck sound, except that part from the west point of ilackey's island north of the Virginia line ; or if any person shall leave any landing or anchorage before sunrise for the purpose of fishing in Cur- rituck sound or tributaries, or shall continue to fish after dark, he shall be guilty of a misdemeanor and be fined not less than twenty- five, nor more than fifty dollars. This section shall not prohibit fish- ing after dark in that part of said sound west of a line beginning at the north point of Bell's island, thence north not more than one thou- sand yards from the main land to the mouth or entrance of Tull's creek, nor night fishing between the thirty-first day of ^larch and the twentieth day of October five hundred yards from the shore from Martin's Point to Kitty's Hawk bay. 1905, c. 273, ss. 3-7. 2431. Shipping or selling fish, Currituck county. If any person shall catch or capture any fish with nets or other apjilianccs in the waters of Currituck county between the thirty-first day of March and the twentieth day of October of each year, or shall sell or ship out of the county or state any fresh fish between said dates; or if any person shall be found with more than twenty-five poiinds of fresh- water fish in his possession between the thirty-first day of March and the twentieth day of October of each year, herrings, mullets, shad and eels excepted ; or if any jierson shall in said county catch eels for market between the thirtieth day of April and the twentieth day of October following in each year, he shall be guilty of a misdemeanor and be fined not more than fifty dollars and not less than twenty-five dollars. Any citizen may catch, not to exceed twenty-five pounds, at any time for home consiimption, and sell or give not more than ten pounds to any one person in one day. 1905, e. 273, a. 1. 2432. Game warden's right to search vessels. If any constable, game warden or justice of the peace of Currituck county shall be informed, or have cause to suspect, that either of the two preceding sections are being violated, he is hereby authorized and empowered to examine the contents of any fishing boat, or packages in transit, and any person or common carrier refusing to exhibit the contents of any fishing boat or package to such officer shall be guilty of a tnisde- 2432 OYSTERS AND FISH— 77. Fishing. Cli. 58 meanor, and shall be fined not less than twenty-five and not more than fifty dollars. 1905, e. 273, ss. 2, 7. . 2433. Direction of nets in Pamlico sound. Every net (unless the same lie a dra.n-nct and hauled to the shore), which may be used for catching shad in that portion of the waters of Pamlico sound, lying between a line drawn eastwardly from Stumpy Point and Mount Pleasant in Hyde county to a point ten miles south of Hat- teras inlet in said sound, shall be set and fixed in said waters, in a direction from north to south, and shall not be used in any other maimer ; and any person offending against this section shall, for every offense, forfeit five dollars. Code, s. 3381; 1889, c. 261; K. C, c. 81, s. 7; 1844, c. 40, s. 6. 2434. In Carteret county. If any person shall catch mullets in the waters of Carteret county with a seine or net having a mesh of less than one and one-eighth inch ; or if any person shall in the waters of Carteret count}', except in ISTeuse river, use for the purpose of catching fish, except menhaden or fatbacks, any seine or net more than two hundred and seventy-five yards long ; or shall join two or more nets together in said coimty so that the length thereof shall be more than two hundred and twenty-five yards, he shall be guilty of a misdemeanor and fined not more than fifty dollars or impris- oned not more than thirty days. And any person using a net exceed- ing the length allowed by this section, shall forfeit said net, one- half thereof to go to the informer, the other half to the school fund. 189.5, c. 25; 1903, c. 508. 2435. Dutch nets in Carteret county. If any person shall use or cause to be used any dutch net, pond net or other stationary trap, net or seine of similar description by whatever name known, in the waters of Carteret county for the purpose of taking fish therefrom, he shall for each day's use thereof forfeit and pay the sum of fifty dollars. The penalties herein created shall be recovered by a war- rant before any justice of the peace in the county of Carteret, and shall be applied to the use of the public schools of said county; and such offender, in addition to the penalties contained in this section, shall be guilty of a misdemeanor, and fined not less than one hundred dollars nor more than five hundred dollars, or imprisoned in the county jail not less than six months nor more than twelve months: Provided, this section shall not ajjply to the ordinary set nets here- tofore in use in the waters of said county. Code, s. 3420; 1883, c, 199. lii'V. Vol. 1—42 721 2436 OYSTERS AXD FISII-^T7. Fishln.j. Cli. 58 2436. Obstructions in Carteret County. If any person shall ob- struct any navigable water or passageway for fish in Carteret county by placing bushes, posts or any stationary materia] or tixt\ircs in such a manner as to prevent the free ]jassage of fish, he shall be giiilty of a misdemeanor and fined not less than one hundred dollars. Nothing in this section shall be construed to jn-ohibit any person from using a lawful net or seine in any way or manner except as a stop net or seine. This section shall not apply to any net that the fish can pass freely by one end. 1903, c. 520. 2437. Mullets in Carteret, if any person shall fish for or catch any mullets with any purse seine or purse net in any waters within the limits of Carteret county, extending to the extreme limits of the state's jurisdiction in and over such waters, he shall be giiilty of a misde- meanor and be fined not less than five hundred dollars or imprisoned no.t less than one year. For the purposes of this section the following boundaries are hereby declared to be the boundaries to which the waters of said county extend, to-wit : A distance of three nautical miles, measured from the oiiter beach or shores of Carteret county out and into the waters of the Atlantic ocean ; and any portions of any water within a distance of three miles from said waters of the Atlantic ocean to any beach or shore of said county shall be deemed the Avaters of said county for the purposes of this section. 1903, c. 583; 1905, cc. 274, 508. 2438. Menhaden fishing. If any person shall catch any menha- den or fatbacks within the waters of the state of North Carolina, to the extreme limits of the state's jurisdiction in and over such waters in any purse net or purse seine with a bar of less than one inch and with a mesh of less than two inches, or shall knowingly cook or manu- facture for fertilizer any menhaden or fatbacks caught in any net or seine having bars of less than one inch or having meshes of Je-ss than two inches at any place within the state of North Carolina, he shall be guilty of a misdemeanor, and for each and every offense shall he fined not less than five hundred dollars or imprisoned for one year, or both, in the discretion of the court. For the purposes of this sec- tion the following boundaries are hereby declared to be the bounda- ries to which the waters of the said state extend, to-wit: A dis- tance of three nautical miles, measured from the outer beach or shores of the state of North Carolina out and into the waters of the Atlantic ocean; and any ]>ortions of any water witliin a distajicc nf tlirec miles from said waters nf tlie .\tlautic ocean to anv licacli or shore of said stati' shall ho decuicd witliin the waters of said slali' L'l.is OYSTERS Al^T) FlSTL—ri. Fishing. Ch. 58 I'lT the purposes of this section. This section shall not apply to till' counties of Dare, Brunswick, Pender and ISTew Hanover. Every person found fishing for menhaden or fatbacks within three miles iof the shore of any county, except the counties of Brunswick, New Hanover and Pender, shall be presumed to have violated this section. iAnd all such persons, firms or corporations shall be subject to all the pains and penalties denounced in this section, and they may be prose- cuted in the courts of any county in this state. All persons aiding and abetting shall be guilty as principals. 1905, ce. 274, 508. 2439. Dutch nets in Albemarle sound and its tributaries. iSTo [person shall set or fish any dutch net or pound net in llounoke river, Cashie or Middle and Eastmost rivers, or within two miles of the mouth of said rivers, or within one mile of the mouth of any other river emptying into Albemarle sound, of less than two miles in width at its mouth, and any such net set within one mile of the mouth of any other river emptying into said sound shall not extend into the main channel at its mouth. No person shall set or fish with a dutch net or pod net within half a mile to the eastward or westward of the out- side windlasses or snatch-blocks of any seine fishery in operation on said sound ; and any such net set or fished within one mile of such windlasses or snatch-blocks of any seine fishery in operation shall run in a due north and south course from the shore, and shall not extend further into the sound from the water's edge than the dis- tance from such windlasses or snatch-blocks to the line of such net ; and all persons who shall set or fish any such net in said sound shall piill up and remove the stakes used for the same by the first day of June next succeeding the fishing season, and if any person shall set or fish any dutch net or pod net in said sound in violation of this section he shall be guilty of a misdemeanor, and be subject to a penalty of three hundred dollars, to be recovered by any person in the superior court of the county in which the oftense shall be committed. And the sheriff of such county shall, when requested, remove any portion of such nets set or fished in violation of this section at the cost of the violator: Provided, that dutch nets may be used in Cashie river two and one-half miles from its mouth, if they do not extend more than one-third the width of said river from the shore, and such nets may be along the sound shore on the Bertie county side between the following points along said shore, to-wit: commencing at the mouth of Cherry Tree Cut branch, Kentrock field and Landing field, and running around the shore to the mouth of Morgan swamp, thence to Rock Spring branch, and that any nets set or fished within that line shall not extend from the shore in any direction a greater distance than four hundred and fifty A-ards iU:J!» OVSTEKS AND FISH— 17. J- isliii,r be imprisoned not more than thirty days. And any person who shall wilfully violate the provisions of this section shall forfeit and pay for each violation of the same the sum of one hundred dollars to be recovered in a civil action by any one who will sue therefor ; one-half of said recovery shall inure to the benefit of the public school fund. 1897, c. 51; 1899. c. 41; 1899, c. 130. 2452 OYSTERS AND FISH— 77. Fishing. Ch. 58 2452. Pamlico county. If any person shall set or fish any dutch or pound nets in the waters of Pandico eounty, or shall use any seine or drag uet in the waters of said county including the north side of Neuse river from the mouth of the ri\'er to the mouth of upper Broad creek from the first day of Maj' to the first day of January next ensuing, or shall at any time catch fish with a seine or drag net along the shores of said county on any day of the week except Monday, Wednesday and Friday, he shall be guilty of a misde- meanor and be fined not more than fifty dollai's or imprisoned not more than thirty days. 1885, c. 198; 1889, c. 544; 1893, c. 334. 2453. Dutch nets in Neuse river. If any person shall use or cause to be used any dutch net, pound uet, or other stationary trap net, or seine of similar description by whatever name known, in the waters of Neuse river for the purpose of taking fish therefrom, except the ordinary set net in use in said river prior to the first day of January, one thousand eight hundred and ninety-seven, he shall for each day's use thereof as aforesaid forfeit and j^ay the sum of fifty dollars. The penalties herein created shall be recovered by warrant before any justice of the peace in the county of Carteret, Craven and Pam- lico or Lenoir, and shall be applied to the use of the public schools of said counties, and such offender in addition to the penalties con- tained in this section shall be guilty of a misdemeanor and shall be fined not less than one hundred dollars, nor more than five hundred dollars, or imprisoned in the county jail not less than six months nor more than twelve mouths: Provided, that a resident and citizen of the state may fish with dutch, trap or pound nets in the waters of Neuse river on the Pamlico side of said river between the mouth of said river and Upper Broad creek not more than five hundred yards from the shore. Code, 9. 3397; 1897, o. 145; 1899, c. 299: 1899, c. 422: 1899, c. 435; 1901, c. 74; 1903, c. 704; 1905, c. 817. 2454. Size of meshes for seines in Neuse and Trent rivers. If any person shall use any drag-net or seine with bars of less size than one and a quarter inch in the Neuse and Trent rivers, or in any of the tributaries thei'cof, except for the purpose of catching herring, from the fifteenth day of Jantiary to the fifteenth day of May of each year, he shall be guilty of a misdemeanor, and fined not less than five nor more than fifty dollars for every offense. This section shall not apply to the waters of the Neuse and its tributaries above the Wayne and Johnston county lines. Code, s. 3395; 1881, c. 146, sa. 1, 2. li-L.-.:. OYSTEES AND FISH— TV. Fisliinfj. Ch. 58 2455. Fishing in Trent river. If any person shall set any trap, fliitch, pound or pod nut of any description whatever in Trent river, or shall at &ny time extend his set nets more than one-third the dis- tance across the Trent river from either side, or shall set any net nearer to any other net than one hundred yards either on the same i)r on the opposite side of the river, or shall fish with seines or set nets of any description in Trent river from its mouth to upper Tucker bridge, between the hours of twelve o'clock noon on Saturday and twelve o'clock noon on Monday of each week, or shall set or haul a net or seine of any description between the town of Trenton and Brown's mill on said river from the sixteenth day of May to the tirst day of August in each year, he shall be guilty of a misdemeanor, and shall be fined not less than five dollars nor more than ten dollars or be imprisoned not less than ten nor more than thirty days. Code, s. 3397; 1893, c. 447; 1897, c. 294. 2456. Fishing or shooting on bridges across Neuse or Trent river at New Bern. If any person being upon the bridges or either of them which span the Neuse and Ti-ent rivers at the city of New Bei'n, shall fish in the waters of said rivers while being on said bridges, excej^t with hand line not attached to any pole, or shall use tire or shoot any firearms while standing or being upon either of said bridges, he shall be guilty of a niisdemeanor and be fined not exceed- ing fifty dollars or imprisoned not exceeding thirty days. 1901, c. 36; inOl, c. 320; 1903, c. 71. 2457. Setting nets across streams. If any person shall set a net of any description across the main channel of any river or creek, or shall erect, so as to extend more than three-fourths of the distance, across any such river or creek any stand, dam, Aveir, hedge or other obstruction to the passage of fish, or shall erect any stand, dam, weir, or hedge, in any part of any river or creek that may be left open for the passage of fish, or who, having erected any dam whei'e the same was allowed, and shall not make and keep open such slope or fishway as may be required by law to be kept open for the free pas- sage of fish, he shall be guilty of a misdemeanor. Code. .ss. 3387, 3388, 3389. 2458. Hauling seines, Cherol-K;:; OVSTKRS AXD FLSJI— IY. fishiii,;. Ch. 58 2463. Sluice-ways kept open when constructed. The sluice- ways i-ef erred to in the preceding section shall be so constructed and placed upon such dams by the owner thereof within sixty days after notice has been given by the board of agi-iculture, under a penalty of one hundred dollars per day for each day thereafter that such dam shall remain Avithout such shiice-way, and shall be kept open by him during the mouths of February, March, April, May, June, October and Xovember, and at all other times when there is suffi- cient water to supply both the water-power and the sluice-way, a fine of fifty dollars per day. for each day said slnice-way shall be allowed to remain closed, and any person Avho shall fish with net, trap, hook and line, or who shall take in any way whatsoever any fish within two hundred feet of said sluice-way shall be subject to a fine of one dollar for each fish so taken, or a fine of fifty dollars for each offense, or imprisonment for thirty days. Code, s. 3411 ; 1880. c. 34, s. 2. 2464. Obstructions removed. Xo other obstruction to the pas- sage of fish shall exist or be built between the designated points in the streams mentioned in the two preceding sections unless an open- ing of not less than twenty-five feet, and not more than seventy-five feet, embracing the main channel of said streams, shall be made by the owner of such obstructions within twenty days after notice from the board of agriculture to make such opening under penalty of fifty dollars per day for each day such obstruction shall remain unopened. Said notice shall be served by the sheriff' of the county, and his return shall be prima facie evidence of notice in any suit for such penalty. Code, s. 3412; 1880, c. 34, s. 3. 2465. Vessel injuring nets. If any master or other person hav- ing the management or control of a vessel or boat of any kind, in the navigable waters of the state, shall wilfully, wantonly, and unneces- sarily do injury to any seine or net, which may be lawfully hauled, set or fixed in said waters for the purpose of taking fish, he shall forfeit and pay to the owner of such seine or net, or other person injured by such act, one himdred dollars, and shall be guilty of a misdemeanor. Code, ss. 3385, 3389. 2466. Use of dynamite for killing fish. If any person shall use any dynamite or any other explosive agent whatever for killing fish, or shall exjilode any dynamite or other explosive agent in the public waters of the state where fish are found, except for mechanical or manufacturing purposes, he shall be guilty of a misdemeanor and fined not more than fifty dollars or imprisoned not more than thirty 2466 OYSTERS AND FISH— F/. Fishing. Ch. 58 (lays. The possession of fish killed by explosive agencies shall be prima facie evidence that explosives were used for the j^urpose of killing fish. Code, s. 3405; 1889, c. 312. 2467. When nonresident may use seines. If any person who has not resided in the state continuous!)- for at least twelve months next preceding the day on which he shall begin to take fish shall use, or cause to be used, in any of the waters of the state, any weir, hedge, net, or seine, for the purpose of- taking fish for sale or exportation, or if any person shall assist in using, or be interested in using or causing to be used, in any such waters for the purpose aforesaid, any weir, hedge, net, seine or tongs in the use of which any such nonresident person may have an interest, he shall be guilty of a misdemeanor. Nothing herein shall prevent any person from fish- ing with seines hauled to the shore at any fishery, the title to which fishery or any interest therein having been acquired by such per- son by purchase or inheritance. This section shall not extend to servants employed to fish by any persons allowed to fish in the navi- gable waters of the state : Provided, no nonresident of the state shall make any sale, assignment or transfer of any fishery, weir, or other fishing ajjj^aratus, or privilege mentioned in this section, to any citi- zen of the state for the purpose of operating and working said fishery, weir, or other fishing apparatus as aforesaid, under the name and OAvnership of such citizen, or as the servant or employee of any citi- zen ; and any sale, transfer or assignment not made bona fide and for a fidl consideration, shall be null and void. Upon affidavit founded upon information and belief that any nonresident of the state is operating any such fishery, weir, or other fishing apparatus as aforesaid in the waters of the state, under such sale, assignment or transfer, as the pretended servant or employee of any citizen of the state, it shall be the duty of the justice of the peace before whom said affidavit is made, to issue a warrant against the said nonresi- dent and citizen under whose name said fishery is operated, and upon conviction the said offenders shall be guilty of a misdemeanor, and shall, for every offense, be fined not more than fifty dollars, or imprisoned not more than thirty daj's. Upon the said trial, the burden of proof shall be on the defendants to prove the bona fides and full consideration of said sale or transfer. Code, ss. 3379, 3380; R. C, c. 81, s. .5; 1844, c. 40, s. 1; 1876-, c. .33; 1883, c. 171. 2468. In New Hanover county. If any person shall use any net for catching sturgcmi in llio wnlrrs of New Hanover county, the bars of the mcslies (if wliicli net shall ])r less tliau ten iuclios iu tlio dia- 734 2468 OYSTEKS AND FISH— F/. Fishing. Cli. 58 luond; or if any person shall fish any seine or net in the waters of said county between the first day of January and the first day of July of each year, or shall haul a seine or nets or pod fish within three hundred yards of any established fishery, except with the nets of such fishery ; or shall set or fish any stationary nets in the waters iif the Cape Fear river, except on the east side thereof and in New Hanover county; or shall set any net in said river otherwise than east or west, or shall own or control more than one line of nets, or shall operate or fish any shad nets in Cape Fear river below the mouth of Brunswick river between the fifteenth day of April and the first day of January of any year ; or shall set any set net or sta- tionary net of any kind in the Cape Fear river north of the moutli of the Brunswick river, or in the Brunswick river; or shall operate any drift net in the Cape Fear river of more than three himdred yards in length, or shall catch shad in said river with seines or nets from the fifteenth of May to the first of January, he shall be giiilty of a misdemeanor. The possession of a sturgeon net with meshes of a size smaller than allowed by this section shall be prima facie evi- dence of having fished the same. In setting nets in Cape Fear river as allowed by this section the following rules shall prevail : They shall begin at a point one hundred yards from the edge of the chan- nel on the east side of said river and nmning thence due east one hundred and twenty yards, then leaving a gap of one hundred and twenty yards. Then from the east end of said gap another net may be set one hundred and twenty yards only, and to continue in the same proportion, always requiring a gap of one hundred and twenty yards to intervene between each one hundred and twenty yards of nets so set, and no net or sets of nets of any kind shall be placed opposite said gaps, within a distance of a half mile of same, and none of the nets so set shall be nearer than a half mile of the west shore of said Cape Fear river. An established fishery in the meaning of this section is one where there is a camp for the use of the hands, and where the seine or nets and boats \ised by the said fishery are kept, and where the said fishery was established prior to the first day of January one thousand eight hundred and ninety- nine. Code, s. 3403; 1901. c. 173; 1899, c. 440; 1881, e. 2S0. 2469. Northeast Cape Fear. If any person shall fish in the northeast branch of the Cape Fear river with seine, net or trap, fi"om the twenty-third day of February to the first day of July of any year, between the hours of six o'clock p. m. on Saturday and six o'clock p. m. on Monday of each week, or shall at any time use more than one seine at a time in any fisliing hole in said river, or use, set or place in said river any liedge, trap or other obstruction which will 2469 OYSTEES AND FISH— 17. Fishimj. Ch. f-N prevent the free passage of fish up said river, which said hedge, trap or other obstruction shall extend more than one-third across the main channel of the said river, he shall be guilty of a misde- meanor. This section shall not a])ply to that portion of said river which lies between the city of Wilmington and a point on said river known as The Three Cypresses, twelve miles distant from said city of Wilming-ton. . 1S89, c. 182; 1891, c. 198. 2470. In Brunswick, New Hanover and Pender counties. If any person shall use in any of the •waters of linin^-wirk, Xew Han- over and Pender counties any nets, seines, set-downs, fish traps or any other nets of any description for the purpose of taking fish, the bars of the meshes of which nets, seines, sct-do-\\Tis, or fish traps shall be less than one and one-eighth inches in length ; or shall with seines or nets of any kind, catch any fish in the waters of the Cape Fear river from its mouth to the ]>laden county line, or in the waters of the Northeast Cape Fear or Black rivers in Pender county between six o'clock p. m. on Tuesday and six o'clock p. m. on Wednesday, or shall obstruct the free passage of fish in the waters of said rivers, ho shall be guilty of a misdemeanor. 1885, c. 226; 1887, c. 71. 2471. In Black river and Mingo creek. If any person shall fish in that part of Ijlack river in Sampson and Cumberland counties and below the Atlantic Coast Line Railway bridge, or in ilingo creek in said counties below the Averasboro and Clinton I'oad otherwise than with a hook and line, he shall be guilty of a misdemeanor. 1895, c. 270. 2472. In certain streams in Cumberland, New Hanover, Bruns- wick and Sampson counties. If any per.son shall catch or destroy with seines, nets, firearms, bows and arrows, or by muddying or stirring the waters, or by striking any fish of any kind in the waters of Black or South rivers, or the waters of Big Coharie, Little Co- harie, Bear Skin and Big Swamps in the counties of New Hanover. Sampson, Cumberland and Harnett, and of the waters of Six Runs in the counties of New LLanover and Sampson, and of the waters of the Cape Fear river in the counties of New Hanover and Brunswick, and of the northeast branch of the Cape Fear river in the county of Now Hanover, l)etwoeu the fifteentli days of ^fay and August of each year, he shall be guilty of a misdemeanor, and fined not to exceed five dollars. Code, s. 3409; 1889, c. 414; 1871-2, e. 152; 1879, c. 283; 1881, c. .309. 2473 OYSTEES AND FISH— TY. Fishing. Ch. 58 2473. Obstructions in South Forl< river. Xo person or corpora- tion shall ])laee or alluw to remain in the South Fork river, from its mouth in Gaston county to its forks in Catawba county, any obstruc- tion to the free passage of fish up said stream: Provided, this section shall not apply to milldams where the owners thereof shall construct a sufficient fishway over said dams at least ten feet wide which will allow fish to pass over said dams: Provided further, this section shall not apply to dams in existence, or which may be erected for manufacturing or milling purposes. The violation of this section shall be a misdemeanor. Code, s. 340G; 1S79, c. 244. ss. 1, 2; 1881, e. 90. 2474. Obstructions in Neuse river. Any person who shall con- struct a dam, put in traps, dutch net, wire seine, or anything else in Xeuse river between its mouth and the Falls of ISTeuse in Wake county, for the purpose of obstructing the passage of fisb in said river shall be guilty of a misdemeanor and be fined not exceeding fifty dollars or imprisoned not exceeding thirty days: Provided, this section shall not apply to seines, set nets, running or .skimming nets: Provided, this section shall not prevent the use of traps in Wayne county, where the trap and its wings do not extend more than one-third across the stream. Code, s. 3422; 1885, c. 391; 189.3, c. 354; 1883, e. 301, ss. 1, 2; 1895. e. 403; 1901. e. 395. 2475. Regulated in Lumber river. It shall be unlawful for any jierson to use any seine, net or gig, or, by muddying the water or by shooting, to catch, take or kill fish in the Lumber river by any means except the ordinary rod, line and hook, from the first day of March to the first day of November in each and every year ; and any person violating this section shall be guilty of a misdemeanor, and shall pay a fine of forty dollars, or be imprisoned not more than twenty days. Code, s. 3404; 1881, c. 288, ss. 1, 2; 1883, ec. 13, 78. 2476. Fishways to be erected in Haw river. All persons main- taining dams across Haw river in the county of Chatham shall, upon thirty days' notice from the board of commissioners of said county, establish fishways in said dams; and if said fishways shall not be made within three months from the service of tbe notice, said persons srests in any hind has become se]ia- rated from the surface in ownership the tenants in eonnuon of such mineral interests may have partition of the same, distinct from the surface, and without joining as ])arties the owner or owners of the surface; and tlic tenants in (■iiiniiinn of tlio surface may lia\-c ]iarti- 2488 PARTITION— 7. Procedure. Ch. 59 tion of the same, in raanner provided by law, distinct from tlie min- eral interests and without joining as parties the owner or owners of the mineral interests. And in all instances whore the mineral inter- ests and surface interests have thus become separated in ownership, the owner or owners of the mineral interests shall not be compelled to join in a partition of the surface interests, nor shall the owner or owners of the surface interests be compelled to join in a partition of the mineral interests, nor shall the rights of either owner be preju- diced by a partition of the other interests. 1905, c. 90. 2489, Of homestead, at instance of judgment creditor. When- ever any person owns a judgment duly docketed in the superior court of a county wherein the judginent debtor owns an undivided interest in fee in land as a tenant in common, and such judgment creditor may desire to lay oif the homestead of the judgment debtor in said land and sell the excess, if any, to satisfy his judgment, said judg- ment creditor may institute before the clerk of the court of the county wherein the land lies a special proceeding for partition of said land between the tenants in common, making the judgment debtor, the other tenants in common and all other interested persons parties to said proceeding by summons. The proceeding shall then be in all other respects conducted as other special proceedings for the parti- tion of land between tenants in common. Upon the actual partition of said land the judgment creditor may sue out execution on his judg- ment, as allowed by law, and have the homestead of the judgment debtor allotted to him and sell the excess, as in other cases where the homestead is allotted under execution. The remedy provided for in this section shall not deprive the judgment creditor of any other remedy in law or in eqiiity Avhich he may have for the enforcement of his judgment lien. 1905, "e. 429. 2490. Unknown persons interested, representative appointed. If, Tipon the filing of a petition for partition it be made to appear to the co\irt by affidavit or otherwise that there are any persons in- terested in the premises whose names are unknown to, and can not after due diligence be ascertained by the petitioner, the court shall order notices to be given to all such persons by a publication of the petition, or of the substance thereof, with the order of the court thereon, in one or more newspapers to be designated in the order. If after such general notice by publication any person interested in the premises and entitled to notice fails to appear, the coiirt shall in its discretion appoint some disinterested person to represent the 2490 PAETITIOK— /. Procedure. Ch. 59 o^vne^ of any shares in the property to be divided, the ownership oi which is Tinknown and unrepresented. 1887, c. 284. 2491. How commissioners summoned; their duty. The commis- sioners, who shall bo summoned by the sheriff, or any constable, mnst meet on the premises and partition the same among the tenants in common, according to their respective rights and interests therein, by dividing the land into equal shares in point of value as nearly as possible, and for this purpose they are empowered to subdivide the more valuable tracts as they may deem best, and to charge the more valuable dividends with such sums of money as they may think necessary, to be paid to the dividends of inferior value, in order to make an equitable partition. If there be any of the tenants in common whose names are not knOwn or whose title is in dis- pute the share or shares of such persons shall be set off together as one parcel. Code, s. 1894; 1887, c. 284, s. 2; 1868-9, e. 122, s. 3. 2492. Oath of commissioners. The commissioners shall be sworn by a justice of the peace, or other person authorized to administer oaths, to do justice among the tenants in common, in respect to such partition, according to their best skill and ability. Code, s. 1893; 1868-9, e. 122, s. 2. 2493. Commissioners may employ surveyor. The commission- ers are authorized to employ the county surveyor, or in his absence, or if he be connected with the parties, some other surveyor, who shall make out a map of the premises showing the quantity, courses and distances of each share, which map shall accompany and form a part, of the report of the commissioners. Code, s. 1895; 1868-9, c. 122, s. 4. 2494. Report; contents; impeached, when. The commissioners, within a reasonable time, not exceeding sixty days after the notifi- cation of their appointment, shall make a full and ample report of their proceedings, under the hands of any two of them, specifying therein the manner of executing their trust and describing particu- larly the land or parcels of land divided, and the share allotted to each tenant in severalty, with the simi or sums charged on the moi'e valu- able dividends to be paid to those of inferior value. The report shall be filed in the office of the superior court clerk, and if no excep- tion thereto be filed \Vithin twenty days, the same shall be confirmed : Provided, that any party after confirmation may impeach the j)ro- (•eedings and decrees for mistake, fraud or collusion by petition in 2494 PAETITION— /. Procedure. Ch. 59 the cause: Provided further, that innocent purchasers for full value and without notice shall not be affected thereby. Code, s. 1896; 1868-9, c. 122, s. 5. 2495. Confirmation; effect; where registered. Such report, when confirmed, together with the decree of confirmation, shall be enrolled and certified to the register of deeds and registered in the office of the county where such real estate is situated, and shall be binding among and between the claimants, their heirs and assigns. Code, s. 1897; 1868-9, c. 122, s. 6. 2496. Owelty bears interest. The sums of money due from the more valuable dividends shall bear interest until paid. Code, s. 1899; 1868-9, c. 122, s. 8. 2497. Owelty charged against minors, when payable. When a minor to whom a more valuable dividend shall fall is charged with the payment of any sum the money shall not be payable until such minor arrives at the age of twenty-one years, but the general guard- ian, if there be one, must pay such sum whenever assets shall come into his hands, and in case the general guardian shall have assets which he did not so apply, he shall pay out of his own proper estate any interest that may have accrued in consequence of such failure. Code, s. 1900; 1868-9, c. 122, s. 9. 2498. Delay by commissioner. If, after accepting the trust, any of the commissioners unreasonably delay or neglect to execute the same, every such delinquent commissioner shall be liable for con- tempt and may be removed, and shall be further liable to a penalty of fifty dollars, to be recovered by the petitioner. Code, s. 1901; 1868-9, c. 122, s. 10. II. Lands in Two States. 2499. Procedure. Whenever on the death of any person, his lands in this state, and in another state, shall descend or be devised to several persons, who, by the law of this and the other state, shall hold in the lands undivided estates as tenants in common, or by any other undivided tenancy, and such heirs or devisees can not, without suit, have partition for want of consent, or because of ina- bility in any of the cotenants, then, if such deceased person shall have been at the time of his death, a resident of the state, or not then a resident of any of the states, in which his lands lie, and in the last ease the most valuable part of such lands shall lie in this state, such heir or devisee, or any person claiming under him, may file a petition in the superior court for the county where the 24iili i'AKTlTiUX— //. Lands in Two ,S/a/w. Cli. o'J deceased resided at his hall file his report of sale in the office of the clerk of the court within ten days after sale, and if no exception thereto be filed within twenty days, the same shall be confirmed: Provided, that any party, after confirmation, shall be allowed to impeach the proceedings and 2.-, 19 PAETITION— 77. Sale of Personalty. Ch. 59 decrees for mistake, fraud or collusion, by petition in the cause : Provided further, that innocent purchasers for full value and with- out notice shall not be affected thereby. Code, s. 1919; 1868-9, c. 122, s. 29. 2520. How sale advertised; terms. The sale shall be made after twenty days' notice, by advertisement in three or more public places in the county, and shall be on such terms as the court may direct. Code, s. 1920; 1868-9, e. 122, s. 30. Note. For compensation of commissioners under this chapter, see s. 2791-2793. CHAPTEE 60. PARTNERSHIP. Sections. I. Limited partnership, 2521—2539 II. Surviving partners, 2540 — 2547 I. Limited Partnership. 2521. For what purposes formed. Limited partnerships for the transaction of any mercantile, manufacturing or mechanical busi- ness within the state may be formed by two or more persons, upon the terms and with the rights and powers and subject to the condi- tions and liabilities in this chapter; but its provisions shall not be construed to authorize any such partnership for the conducting of a banking or insurance business, other than writing or soliciting insurance. Code. s. 3088; 1860-1, c. 28. 2522. General and special partners joined; liability of special. Such partnerships may consist of one or more persons, who are general partners, and are jointly and severally responsible as part- ners are now by law, and of one or more persons, who contribute in actual cash payments a specific sum as capital to the common stock, who are called special partners, and who are not liable for the debts of the partnership beyond the fimds so contributed to the capital. Code, s. 3089; 1860-1, c. 28, s. 2. 252:1 PARTXEESIITP— 7. Liwilcil Pnihirrsliij,. Ch. CO 2523. Must make certificate; what to contain. The persons desirous of forming such ]iartiierslii|i must make and severally sign a certificate containing: First, tbe name or firm under which such partnership is to be conducted ; second, the general nature of the business to be transacted; third, the names of all the general and special partners interested thei'ein, distinguishing which are gen- eral and which are special partners, and their respective places of residence; fourth, the amoiint of capital which each special partner has contributed to the common stock ; fifth, the period at which such partnership is to commence and terminate. Code, s. 3090; 1860-1, c. 28, s. 3. 2524. Registration of certificate. The certificate must be ac- knowledged or jjroved before some one competent to take the probate of deeds and ordered registered in the same manner as provided for deeds, and must be registered in the county in which the princi- pal place of business of such partnership is situated. If the part- nership has places of business in difterent counties, a transcript of the certificate and acknoAvledgment certified by the register must be registered and filed in the register's oflice of each of such coun- ties. Code, ss. 3091, 3092; 1860-1, c. 28, ss. 4, 5. 2525. Affidavit of payment of casil. At the time the certifi- cate is ordered to be registered an affidavit of one or more of the general partners shall be made before the officer taking such ac- knowledgment, stating that the sums specified in the certificate to have been contributed by each of the special partners to the com- mon stock have been actually in good faith paid in cash, and the said affidavit so made shall be registered witli the original certificate. Code, s. 3093; 1860-1, c. 28, s. 6. 2526. Registration essential. Xo such partnership shall be deemed to have been formed until such certificate and affidavit have been made, acknowledged or proven and registered as required in the preceding sections. Code, s. 3094; 18601, c. 28, s. T. 2527. False statement, all general partners. If any false state- ment is made in such certificate or affidavit, all the persons inter- ested in such ])artners]iip sliall be liable as general partners. Code, s. 3095; 1860-1, e. 28, s. 8. 2528. Publication of terms of. The terms of the partnership must be published iuuiiediatcly after its formation for six successive weeks, in at least mic n('\vs])aper in the same cropcrly doing business under partnership name, see 9. 2118. 2540 PARTNERSHIP— 77. Surviving Partners. Ch. 60 II. Surviving Partners. 2540. Inventory by, in sixty days; copy to personal represent- ative. When a iiicinber iif any ])artnerslii]i ilies tlie surviving ])art- ner, within sixty days after the death of the deceased partner, together with the personal representati\'e of the deceased partner, shall make out a full and complete inventory of the assets of the partnership, including real estate, if there be any, together with a schedule of the debts and liabilities thereof, a copy of which inven- tory and schedide shall be retained by the surviving partner, and a copy thereof shall be furnished to the personal representative of the deceased partner. 2541. On refusal of, personal representative may take inven- tory; receiver appointed, when. If the surviving partner neg- lect or refuse t^i have said in\-entory made, the personal represent- ative of the deceased partner may have the same made in accord- ance with the i^rovisions of the preceding section. Should any surviving partner fail to take such an inventory or refuse to allow the personal representative of the deceased partner's estate to do so, such personal representative of the deceased partner's estate may forthwith apply to a court of competent jurisdiction for the appoint- ment of a receiver for said partnership, who shall thereupon pro- ceed to winb\) EAILROADS — II. Municipal Suhscriplions. Cli. 61 to subscribe tbe amount of stock proposed by them, and submitted to the people subject to all the rules, regulations and restrictions of other stockholders in such company : Provided, that the counties, in the manner aforesaid, shall subscribe from time to time such amounts, either in bonds or money, as they may think proper. Code, s. 1997; 18G8-9, c. 171, s. 2. 2560. Election for, held. All elections ordered under the pre- ceding section shall be held by the sheriff under the laws and regu- lations provided for the election of members of the general assembly. The votes shall be compared by the boards of county commissioners who shall make a record of the same. Code, s. 1998; 1868-9, c. 171, s. 3. 2561. How Interest on bonds paid. In case the county shall sub- scribe the aiiiouut jiroposed in lionds, the board of commissioners shall have power to fix the rate of interest, not to exceed the rate of six per cent., when the principal on said bonds shall be payable, and at what place, and shall also fix the time and places of paying the inter- est, and shall also determine the mode and manner of paying the same; and also to raise by taxation, from year to year, the amount necessary to meet the interest on said bonds. Code, s. 1099; 18G8-9, c. 171, s. 4. 2562. How taxes for bonds collected. The taxes authorized by the three preceding sections to be raised for the payment of interest or principal, shall be collected by the sheriff in like manner as other state taxes, and be paid into the hands of the county treasurer, to be used by the chairman of the board of county commissioners as directed by this chapter. Code, s. 2000; 1868-9, c. 171, s. 5. III. ClIAETER FOEFEITED. 2563. By preference to shippers. In the event of any contract ha\'ing been entered into by any railroad company in this state with any person or company, whereby preferences or exclusive rights of transportation, either in priority or in arrangements, is given to such jicrson or company, the attorney general is hereby instructed to insti- tute proceedings against such railroad company for a forfeiture of its charter. Code, s. 1969; 1865-6, resolution ratified neoember 14, 1865. 2564. By failure to begin in two years or to complete in ten. If any railroad e a badge which shall indicate liia office and the initial letters of the title of tlie corporation by wliicli lie is eniploye(l. No conductor 2604 RAILROADS— F/7. Servants and Police. Cb. (Jl or collector without such badge sball be entitled to demand or receive from any passenger any fare or ticket, or to exercise any of the powers of his office ; and no officer or servant without such badge shall have authority to meddle or interfere with any passen- ger, his baggage or property. Code, s. 1958; 1871-2, c. 138, s. 30. 2605. May apply to governor to appoint police. Any corporation operating a railroad on which steam is used as the motive power may apply to the governor to commission such persons as the said corpo- ration may designate to act as policemen for said corporation. Code, s. 1988; 1871-2, c. 138, s. 51. 2606. Governor may appoint, and issue commission. The gov- ernor ujion sucli application may appoint such persons or so many of them as he may deem proper to be such policemen, and shall issue to such person or persons so appointed a commission to act as such policemen. Code, s. 1989; 1871-2, c. 138, s. 52. 2607. Oath and powers of special policemen. Every policeman so appointed shall, Ix'fore entering upon the duties of his office, take and subscribe the usual oath ; such oath, with a copy of the commis- sion, shall be filed with the corporation commission and a certificate thereof by its clerk shall be filed with the clerk of each county through or into which the railroad for which such policeman is appointed may run and in which it is intended he shall act, and such policeman shall severally possess within the limits of the county all tlie powers of policemen in the several towns, cities and villages in wjiich they shall be so authorized to act as aforesaid. Code, s. 1990; 1871-2, e. 138, s. 53. 2608. Police to wear badge when on duty. Such railroad po- lice shall, when on diity, severally wear a metallic shield with the words "Railway Police" and the name of the corporation for which appointed inscribed thereon, and said shield shall always be worn in plain view except when employed as detectives. Code, s. 1991 ; 1871-2, c. 138, s. .54. 2609. Compensation of police. The compensation of such police .shall be paid by the companies for which the policemen are respect- ively appointed as may be agreed on lietween them. Code, s. 1992; 1871-2, e. 138, s. 55. 2610. Dismissal of police; notice, where filed. Whenever any. company shall no longer require the services of any policeman so 779 2(UU llXUAiOAUS—VII. Seivanl.^ and Folicc. Cli. CI appointed as aforesaid, it may file a notice to that effect in the several otfices in which notice of such a]jpointment was originally filed, and thercu]ian the power of sncli dtiiccr shall cease and \>c determined. Code, s. 1993; 1871-2, c. 13S, s. 56. VIII. Ol'EKATIOX OF Tl!AINS._ 2611. Trains to run on schedule; schedule published; must transport freight and passengers. Every railroad corporation sliall start and rvin their cars for the transportation of passenger- and property at regular times to be fixed by public notice, and shall furnish sufficient accommodation for the transportation of all such passengers and property as shall, within a reasonable time previous thereto, be offered for transportation at the place of starting and the junction of other raih-oads and at usual stopping places estab- lished for receiving and discharging way passengers and freights for that train, and shall take, transport and discharge such passen- gers and property at, from and to such places, on the due pajnnent of the freight or fare legally authorized therefor, and shall be liable to the party aggi-ieved, in an action for damages, for any neglect or refusal in the premises. Code, s. 1963; 1871-2, c. 138, s. 35. 2612. How cars arranged in passenger train. In forming a passenger train, baggage, freight, merchandise or lumber cars shall not be placed in rear of the passenger cars, except in case of acci- dent, or when the cars are provided with automatic couplers or brakes. Code, s. 1971; 1871-2, c. 138; 1893, c. 331; 1895, c. 212. 2613. What trains may run on Sunday. No railroad company shall permit the loading or uidoading of any freight car on Sunday; nor shall permit any car, train of cars, or locomotive to be run on Sunday on any railroad, except in case of accident and excejit such as may be run for the purpose of transporting the United States mails and passengers with their baggage, and ordinary express freight in express cars exclusively, and except such as shall be run for the i)urpose of transporting fruits, vegetables, live stock and perishable freights. "Where there are not sufficient cars of live stock or other perishable freights to make a com])lete train, or section of a train, the company may add other cars to complete llie same: Pro- vided, the word Sunday in tiiis section shall be construed to embrace only that portion of the day between sunrise and sunset; and trains in transitu, ha\iug started on Saturdav, mav, in order to reach tiie 2613 EAILROADS— 17//. Operation of Trains. (_'li. (11 terminus or shops, run until nine o'clock a. m. on Sunday, but not later, nor for any other jjvirpose than to reach the termmas or shops. Code, s. 1973; 1879, cc. 97, 203; 1885, c. 92; 1897, c. 126; 1901, c. 444. 2614. Fast mail trains authorized; one train a day in each direction reCjUired. Tlie corporation commission is hereby empow- ered, whenever it siiall appear wise and proi:)er to do so, to authorize any railroad company to run one or more fast m'ail trains over its road, which shall only stop at such stations on the line of the road as may be designated by the company: Provided, that in addition to such fast mail train said railroad shall run at least one passenger train in each direction over its road on every day except Sunday, which shall stop at every station on the road at whicli passengers may wish to be taken up or put off: Provided further, that nothing in this section shall be constriied as preventing the running of local passenger trains on Sunday. 1893, c. 97. 2615. Vestibule fronts on street railway cars. All street pas- senger railway companies shall use vestibule fronts, of frontage not less than four feet, on all passenger cars run by them on their lines during the latter half of the month of November and during the months of December, January, February and March of each year: Provided, that such companies shall not be required to close the sides of the vestibules: Provided further, siTch companies may use cars without vestibule fronts in cases of temporary emergency in suitable weather, not to exceed four days in any one month within the period herein prescribed for use of vestibule fronts. The cor- poration commission is hereby authorized to make exemptions from the provisions of this section in such cases as in their judgment the enforcement of this section is unnecessary. 1901, c. 743. 2616. street railways to have fenders in front of passenger cars. All street passenger railway com])anies shall use practical fenders in front of all passenger cars run by them. The corporation commission is hereby authorized to make exemptions from the pro- vision of this section in such cases as in their judginent the enforce- ment of this section is unnecessary. 1901, c. 743, s. 2. 2617. May seize and use fuel. If any railroad or other trans- portation comjiany finds it necessary, in order to prevent delays in the transportation of freight or pas.sengers, to take possession of coal, wood or other fuel not its own property and convert it to its own use without an agreement with the owner thereof, it shall notify 2617 EAILKOADS— 17//. Operation of Trains. Ch. 01 such owner within three days of such taking and shall, within a period of thirty days, pay for such coal, wood or other fuel at the invoice price at place of shipment, plus ten per cent. Should the transportation company fail to notify the consignee or owner within such three days or pay for said coal, wood or other fuel at the invoice price at place of shipment, plus ten per cent, as above provided, within thirty days after converting the same to its own use it shall in addition forfeit to the party aggrieved the sum of twenty-five dol- lai-s for the first day of failure to notify such consignee of such appropriation of said fuel, or their failure to pay for the same, ami five dollars for each day thereafter in which they shall fail to notify such consignee or pay for the same. 1903, c. 590, s. 4. IX. Passexgees. 2618. First and second class accommodations. All railroad comjianies shall furnish first and second class passenger accommo- dations. 1899, e. 384, s. 4. 2619. Separate accommodations for different races. All rail- road and steamboat companies engaged as common carriers in the transportation of passengers for hire, other than street railways, shall provide separate but equal accommodations for the white and colored races at passenger stations or waiting rooms, and also on all trains and steamboats carrying passengers. Such accommodations may be furnished by railroad companies either by separate passen- ger cars or by compartments in passenger cars, M'hich shall be pro- vided by the railroads under the supervision and direction of the corporation commission: Provided, that this shall not apply to relief trains in cases of accident, to Pullman or sleeping cars, or through express trains that do not stop at all stations and are not used ordi- narily for traveling from station to station, to negro servants in attendance on their employers, to officers or guards transporting pris- oners, nor to prisoners so trans]iorted. 1899, c. 384; 1901, c. 213. 2620. Corporation commission may exempt certain roads and trains. The corporation commission is hereby authorized to oxemjU from the provisions of the preceding section steamboats, branch lines and narrow-gauged railroads and mixed trains carrying both freight and passengers, if in its judgment the enforcement of the same be unnecessary to secure the comfort of passengers by reason of the light volume of passenger traffic, or the small nunibor of colored 2620 EAILEOADS— /A'. Passengers. Ch. 61 passenger travelers on such steamboats, narrow-gaiige, branch lines or mixed trains. 1S99, c. 3S4, s. 2; 1901, e. 213. 2621. When two races put in same coach. When any coach or compartment car for either race shall be completely filled at a sta- tion where no extra coach or car can be had, and the increased num- ber of passengers could not be foreseen, the conductor in charge of such train may assign and set apart a portion of a car or compart- ment assigned for passengers of one race to passengers of the other race. 1899. c. 384, s. 3. 2622. Penalty for failing to provide separate cars. Any rail- road company failing to comply in good faith with the provisions of the three preceding sections shall be liable to a penalty of one hundred dollars per day, to be recovered in an action brought against such company by any passenger on any train or boat of any rail- road or steamboat company which is required by this chapter to fur- nish separate accommodations to the races, who has been furnished accommodations on such railroad train or steamboat in only a car or compartment with a person of a different race in violation of law. 1899, c. 384, s. 5. 2623. Must check baggage; liable for loss. A check shall be aflixed to every parcel of baggage when taken for transportation by the agent or servant of such corporation, if there is a handle, loop or fixture so that the same can be attached upon the parcel or bag- gage so offered for transportation, and a duplicate thereof given to the passenger or person delivering the same on his behalf; and if such .check be refused on demand the corporation shall pay to such passenger the sum of ten dollars, to be recovered in a civil action; and further, no fare or toll shall be collected or received from such jiassenger, and if such passenger shall have paid his fare the same shall be refunded by the conductor in charge of the train, and on producing said check, if his baggage shall not be delivered to him, he may, by an action, recover the value of said trunk or baggage. Code, s. 1970; 1871-2, c. 138, s. 36. 2624. Baggage handled carefully. All railroad and steamboat companies shall liandle with care all bag!;age and freights placed with them for transportation, and they shall be liable in damages for any and all injuries to the baggage or freight of persons from whom they have collected fare or charged freight, while the same is under their control ; and upon proof of injury to baggage or freight in the 1^024 EAILROADS— /X. Passcu/crs. Ch. 01 jjossession or under the control of any sucli company, it shall be pre- sumed that the injury was caused by the negligence of the company. 1897, e. 46. 2625. Ticket to intoxicated man refused. The ticket agent of any railroad, steamboat or other transportation company shall at all times have power to refuse to sell a ticket to any person applying for the same who may at the time be intoxicated. 1885, c. 3.58. 2626. May prevent intoxicated person from entering. The con- ductor, captain ur other person in charge of any railroad car, steam- boat, or other conveyance for the use of the traveling public, shall at all times have power to prevent any intoxicated person from enter- ing such car, boat, or other conveyance. 1885, e. 358, s. 2. 2627. Unused tickets to be redeemed. When any round-trip ticket is sold by a railroad or transportation company it shall be the duty of such company to redeem the unused portion of said ticket by allowing to the holder thereof the difference between the cost thereof and the price of a one-way ticket between the stations for which such round-trip ticket was sold. Whenever any one-way or regular ticket is sold by a railroad or transportation company, and not used by the purchaser, it shall be the duty of the company sell- ing the ticket to redeem it at the price paid for it. All railroad and transportation companies shall redeem all mileage tickets known as five-hundred, thousand and two-thousand mile tickets, sold by them, if presented within a year from the date of the sale, in money, when as much as fifty per centum of such ticket has been used by the pur- chaser, by paying the same price per mile paid for it, or shall allow the original holder to ride it out, 1891, c. 290; 1893, c. 249; 1895, e. 83, ss. 2, 3; 1897, c. 418. 2628. Injury to passengers on platform, etc. In case any pas- senger on any railroad shall be injnre(l while on the platform of a car or on any baggage, wood or freight car, in violation of the printed regulations of the company posted up at the time in a con- spicuous ]ilace inside its passenger cars then in the train, such com- pany shall not be liable for the injury: Provided, said company at the time furnish room inside its passenger cars sufficient for the proper accommodation of its passengers. Code, s. 1978; 1871-2, c. 138, s. 42. 2629. Refusing to pay fare, may eject. Tf any passenger shall refuse to pay his fare, or \-i(ilato the rules of llic ciirjinralion, it sliall im;i'!) RAILEOADS— /X. Passengers. Ch. Gl l>i' lawful for the conductor of the train and the servants of the cor- poration to put him and his baggage out of the cars, using no un- necessary force, at any usual stopping place or near any dwelling- house, as the condiTctor shall elect, on stopping the train. Code, s. 19C2; 1871-2, c. 138, s. 34. X. Freight. 2630. Freight rates posted. It shall be the duty of all railroad and other transportation companies to kee]) posted in a conspicuous place in their depots or places where freight is received for shipment a list of its charges for carrying freight, specifying name of place, class of freight and charge for carrying the same. Such charges shall not be increased without giving fifteen days' notice, and the company represented by any agent refusing to comply with this sec- tion shall be liable to a penalty of not less than fifty nor more than one hundred dollars. Code, s. 1965; 1879, e. 182, s. 2. 2631. Penalty for failure to receive. Agents or other oriicers of railroads and other transportation companies whose duty it is to receive freights shall receive all articles of the nature and kind received by such company for transportation whenever tendered at a regiilar depot, station, M'harf or boat landing, and every loaded car tendered at a sidetrack, or any warehouse connected with the railroad by a siding, and shall forward the same by the route selected by the person tendering the freight under existing laws ; and the transportation company represented by any person refusing to re- ceive such freight shall forfeit and pay to the party aggrieved the sum of fifty dollars for each day said company refuses to receive said shipment of freight, and all damages actually sustained by rea- son of the refusal to receive freight. If such loaded car be tendered at any siding or workhouse at which there is no agent, notice shall be given to an agent at the nearest regular station at which there is an agent that such car is loaded and ready for shipment. Code, s. 1964; 1903, cc. 444, 693. 2632. Failure to transport in reasonable time; reasonable time defined; forfeiture. It shall be unlawful for any railroad couipany, steamboat coni]iany, exj^ress company or other transportation com- pany doing business in this state to omit or neglect to transport within a reasonable time any goods, merchaudise or articles of \alue received by it for shipment and billed to or from any place in the state of jSTorth Carolina, unless otherwise agTced upon be- tween the company and the shipper or unless same be burned, Rev. Vol. I— 40 78"> 2C:32 RAILEOADS— A'. Freight. Cli. (il stolen or otherwise destroyed, or unless otherwise provided by the N"orth Carolina corporation commission. Each and every company violating any of the provisions of this section shall forfeit to the party aggrieved the sum of twenty-five dollars for the first day and five dollars for each succeeding day of such unlawful detention or neg- lect where such shipment is made in carload lots, and in less quanti- ties there shall be a forfeiture in like manner of twelve and fifty one- hundredth dollars for the first day and two and fifty one-hundredth dollars for each succeeding day: Provided, the forfeiture shall not be collected for a period exceeding thirty days. In reckoning what is reasonable time for such transportation it shall be considered that such transportation company has transported freight within a rea- sonable time if it has done so in the ordinary time required for trans- porting such articles of freight between the receiving and shipping stations; and a delay of two days at the initial point aud forty -eight hours at one intermediate point for each hundred miles of distance or fractions thereof over which said freight is to be transported shall not be charged against such transportation company as imreasonable and shall be held to be prima facie reasonable, and a failure to trans- port within such time shall be held prima facie unreasonable. 1903, e. 590, s. 3; 1905, c. 545. 2633, Paid at classified rates; penalty for overcharge. All common carriers doing business in tliis state shall settle their freight charges according to the rate stipulated in the bill of lading, pro- vided the rate therein stipulated be in conformity with the classifica- tions and rates made and filed with the interstate commerce commis- sion in ease of shipments from without the state and with those of the corporation commission of this state in case of shipments wholly within this state, by which classifications and rates all consignees shall in all eases be entitled to settle freight charges with such car- riers ; and it shall be the duty of such common carriers to inform any consignee or consignees of the correct amount due for freight accord- ing to such classification and rates, and upon payment or tender of the amount due on any shipment which has arrived at its destination according to such classification and rates such common carrier shall deliver the freight in question to consignee or consignees, and any failure or refusal to comply with the provisions hei'eof shall subject such carrier so failing or refusing to a penalty of fifty dollars for each such failure or refusal, to be recovered by any consignee or con- signees aggTieved by any suit in any court of competent jurisdiction. 1905, c. 330. 2634. Time within which loss or damage must be paid; penalty; amount of recovery; actions united; remedy cumulative. F.very 2634 RAILKOADS— Z. Freight. Cli. fil claim for loss of or damage to property while in possession of a corn- mon carrier shall be adjusted and paid within sixty days in case of shipments wholly M'ithin this state, and within ninety days in case of shipments from without the state, after the filing of snch claim with the agent of snch carrier at the point of destination of such shipment or point of delivery to another common carrier: Provided, that no such claim shall be filed until after the arrival of the shipment, or of some part thereof, at the point of destination, or until after the lapse of a reasonable time for the arrival thereof. In every case such common carrier shall be liable for the amount of such loss or damage, together with interest thereon from the date of the filing of the claim therefor until the payment thereof. Failure to adjust and pay such claim within the periods respectively herein prescribed shall subject each common carrier so failing to a penalty of fifty dol- lars for each and every such failure, to be recovered by any consignee aggrieved in any court of competent jurisdiction: Provided, that im- less such consignee recover in such action the full amount claimed, no penalty shall be recovered, but only the actual amount of the loss or damage, with interest as aforesaid. Causes of action for the recov- ery of the possession of the property shipped, for loss or damage thereto and for the penalties herein provided for may be united in the same complaint. 1905, c. 330, ss. 2, 4, 5. 2635. Existing remedies continue. The preceding section shall not deprive any consigiiee of any rights or remedies now existing against common carriers in regard to freight charges or claims for loss or damage to freight, but shall be deemed and held as creating an additional liability upon said common carrier. 1905, c. 330, s. 5. 2636. Carrier's right against other carrier. Any common car- rier, upon complying with the provisions of the two preceding sec- tions, shall have all the rights and remedies herein provided for against a common carrier from which it receives the freight in ques- tion. 1905, c. 330, s. 3. 2637. Unclaimed freight sold. Every railroad, steamboat, ex- press or transportation company which shall have had unclaimed freight, not perisliable, in its possession for a period of six months, may proceed to sell the same at public auction, and out of the pro- ceeds may retain the charges of transportation and storage of such freight and the expenses of advertising and sale thereof ; but no such sale shall be made until the expiration of four weeks from the first publication of notice of such sale in a state paper and also in a k 2637 RAILRO.IDS— X. Freight. Cli. CI newspaper published at or nearest the place at which such freight was directed to be left, and also at the place where such sale is to take place. The expenses incurred for advertising shall be a lien upon such freight in a ratable jiroportion according to the value of each article, package or parcel, if more than one. Code, s. 1985; 1871-2, c. 138, s. 48. 2638. Unclaimed perishable freight. In case such unclaimed freight shall in its nature be perishable, then the same may be sold as soon as it can be, on giving the notice required in the preceding section, after its receipt at the place where it was directed to be left. Code, s. 1986: 1871-2, c. 138, s. 49. 2639. Funds from unclaimed freight go to University. Such railroad, steamboat, express or transportation company shall make an entry of the balance of the proceeds of the sale, if any, of each parcel of freight owned by or consigned to the same person, as near as can be ascertained, and at any time within five years thereafter shall refund any surplus so retained to the owner of such freight, his heirs or assigns, on satisfactory proof of such ownership ; if no person shall claim such surplus within five years, said surplus shall be paid to the university. Code, s. 1987; 1871-2, c. 138, s. 50. 2640. Through freight and travel. The directors representing the stock held in the various railroad corporations are hereby aiithor- ized and empowered to enter into such, agreements and terms with each other as to secure through freight and travel without the expense of transfer of freight, or breaking the bulk thereof, at dif- ferent points along the lines, and for this purpose may use the road or roads of said corporations or companies, and rolling stock thereof, on such terms as may be agi-eed upon by the directors of said corpo- rations or companies. Code, s. 1995; 1866-7, c. 105. 2641. Charges on partial freight deliveries. Whenever any frciglit of any kind shall be received by any common carrier in this state to be delivered to any consignee in this state, and a portion of the same .shall not have been received at the place of destination, it •shall not be lawful for the carrier to demand any part of the charges for freight or transportation due for such portion of the shipment as shall not have reached the place of destination. The carrier shall be required to deliver to the consignee such portion of the consign- ment as shall have been received upon the payment or tender of the freiglit cliargcs due upon such portion. lint notliing in this i'(in RAILROADS— X. Freight. Cli. 61 -cition shall be construed as interfering with, or depriving a con- -ianor, or other person having authority, of his rights of stoppage in I ran situ. 1S!)3, c. 495. XI. OvEECriARCiES. 2642. Not to receive more than tariff rate. A'o railroad, steam- in 'at, express or other transportation company engaged in the carriage of freight, and no telegraph company or telephone company shall de- mand, collect or receive for any service rendered or to be rendered in the transportation of property or transmission of messages, more than the rates appearing in the printed tariif of such company in force at the time such service is rendered, or more than is allowed by law. 1903, c. 590. 2643. Overcharge on tariff rates refunded. In case of any over- charge, contrary to the preceding section, the person aggrieved may file with any agent of the company collecting or receiving greater compensation than the amount allowed in the preceding section a written demand, supported by a paid freight bill and an original bill of lading or duplicate thereof for refund of overcharge, and a maximum period of sixty days shall be allowed such company to pay claims filed under this section. 1903, c. 590, s. 2. 2644. Penalty for failure to refund overcharge. Any company failing to refund such overcharge, within the time allowed, shall forfeit to the party aggrieved the sum of twenty-five dollars for the first day and five dollars per day for each day's delay thereafter until said overcharge is paid, together with all costs incurred by the party aggi'ieved: Provided, the total forfeiture shall not exceed one hundred dollars. 1903. c. 590, s. 2. Xir. Miscellaneous. 2645. Live stock killed, negligence presumed. When any cattle or other live stock shall be killed or injured bv the engines or cars running iijion any railroad, it shall be prinui facie evidence of neg- ligence on the part of the company in any action for damages against such company: Provided, no person shall be allowed the benefit of this section imless he shall bring his action within six months after his cause of action shall have accrued. Code, a. 2326; 1856-7, e, 7. 2646. Injuries by negligence of fellow-servants; defective ma- chinery. Any servant or employee of any railroad company ojiernt- 2646 RAILEOADS— X//. Miscellaneous. Ch. 61 ing in this state who shall suffer injury to his person, or the per- sonal representative of any such servant or employee who shall have suffered death in the course of his services or employment with such company by the negligence, carelessness or incompetence of any other servant, employee or agent of the company, or by any defect in the machinery, ways or appliances of the company, shall be enti- tled to maintain an action against such company. Any contract or agreement, expressed or implied, made by any employee of such com- pany to waive the benefit of this section shall be null and void. 1897 (Pr.), c. 56. 2647. How action brought for penalties. All penalties imposed by this chapter may, unless otherwise provided, be sued for in tlie name of the state. Code, s. 1976; 188.5, e. 221. 2648. Officials to account to successors. The president and directors of the several railroads, and all ]icrsons acting under them, are hereby required upon demand to accoimt with the president and directors elected or appointed to succeed tliem, and shall transfer to them forthwith all the money, books, papers, choses in action, prop- erty and effects of every kind and description belonging to sucli company. Code, s. 2001; 1870-1, c. 72, ss. 1, 3. Note. Foi- otlier slatutps aflVctinfj railro.Tds, sec Corporation Commission. CHAPTER 62. REGISTER OF DEEDS. Sections. I. Office of, 2649—26.54 n. Duties of, 2655—2669 I. Office of. 2649. Seal of office. The office of register of deeds for every county in tlio state shall have and use an official seal, which seal shall be provided by the county commissioners of the several counties, and sliall be of the same size and design as the seals now used by the clerk of the su])erior court, witli tlie words "Office of Register of Deeds," tiie name of the county and the lett^^rs "Nortli Carolina" surrounding the figures. ISO."), c. iin. s. 1. 790 i'(;.-.0 REGISTER OF DEEDS—/. Office of. Ch. (52 2650. Election for. In each county there shall be elected bien- nially by tlie qualified voters thereof, as provided for the election of members of the general assembly, * * * a register of deeds. Const., Art. VII, s. 1. 2651. Vacancy filled by commissioners. When a vacancy oc- cnrs from any cause in the office of register of deeds, the board of county commissioners shall fill snch vacancy by the appointment of a successor for the unexpired term, who shall qualify and give bond as required by law. Code, s. 3649 ; 1868, c. 35, s. 4. Note. See also s. 1321. 2652. Oath of office. The register of deeds shall take the oath of office on the first Monday of December next after his election before the board of county commissioners. Code. s. ;iU47.; 186S, c. 3.5, s. 2; 1876-7. c. 276, s. 5. 2653. Where kept. The register shall keep bis office at the court- house unless the board of county commissioners shall deem it im- practicable. . -'' Code, s. 36.50; 1868, c. 35, s. 5. 2654. When open. The board of county commissioners may fix by order, to be entered on their records, what days of each week, and at what hours of each day, the register of deeds shall attend at his office in person or by deputy, and he shall give his attendance accordingly. Code, s. 3651 ; 1868, c. 35, s. 6. II. Duties of. 2655. Call on clerk for instruments. The register of deeds shall at least once a week aj^ply to the clerk of the superior court of his county for all instruments of writing admitted to probate, and then remaining in the office of such clerk for I'egistration, and also for all fees for registration diie thereon ; which fees the clerk of the supe- rior court shall receive for the register. Code, s. 3652; 1868, c. 35, s. 7. 2656. Proceed against clerk for failure to deliver papers. In ca.se the clerk fails to deliver such instriuneiits of writing, and pay over such fees as are ijrescribed in the preceding section, on appli- cation of the register, the clerk shall forfeit and pay to the register one hundred dollars for every such failure; for Avhich sum judg- ment may be entered at any time by the judge of the superior court, 2G.JG REGISTER OF DEEDS—//. Duties of. CIi. (ii- on motion in behalf of the register, on a notice of ten davs thereof to the clerk. Code, s. 305.3; 1808, c. 35, s. S. 2657. Certify and register copies. When a .k-ed, mortgage w other conveyance conveying real estate situate in two or more coun- ties is presented for registration duly probated and a copy thereof is presented with the same, the register shall compare the copy with the original, and if it be a true copy thereof he shall certify the same, and thereupon the register shall endorse the original deed or conveyance as diily registered in his county, designating the book in which the same is registered and deliver the original deed to the jiarty entitled thereto and register the same from the certified copy thereof to be retained by him for that purpose. 1899, c. 302. 2658. To register instruments within what time. The regis- ter of deeds shall register all instruments in writing delivered to him for registration within twenty days after such delivery, except mort- gages and deeds in trust, or other instruments made to secure the payment of money, which he shall register forthwith after delivery to him. lie shall indorse on each deed in trust and mortgage the day on which it is presented to him for registration, and such in- dorsement shall be entered on his books and form a part of the regis- tration, and he shall register such deeds in trust and mortgages in the order of time in which they are presented to him. Code, s. 3654; E. C, c. 37, s. 23; 1868, c. 35, s. n. 2659. Bond liable for failure to register. In ease ..f his fail- ure to register any deed or other instrument within the time and in the manner required by the preceding section, the register shall be liable, in an action on his otticial bond, to the party injured liy such delay. Code, s. 3000: 1808, c. 35, s. 10. 2660. To file papers alphabetically. The register shall keep in files alphabetically labeled all original instruments delivered to him for registration, and on application for such originals by any per- son entitled to their custody, he shall deliver the same. Code, s. 3601; 1868, c. 35, s. 11. 2661. Transcribe and index books on order. The iward of county conuuissioners, A\hen they deem it necessary, may direct the register of deeds to transcribe and index such of the books in the register's office as from decay or other cause may require to be triinsci'ilicil and indexed. They may allow him such ci)m|icnsal inn 26G1 REGISTEE OF DEEDS—//. Duties of. Ch. C2 at the expense of the county for this work as they think just. The books when so transcribed and approved by the board shall be public records as the original books, and copies therefrom may be certified accordingly. Code, s. 3062; 1S08, e. 35, s. 12. 2662. Number of survey in grants registered. The register of deeds in each county in this state, when gTants have been registered without the number of the tract or survey, shall place in the registra- tion of the grants the number of the tract or survey, when the same shall be furnished him by the grantee or other person ; and in regis- tering any grant he shall register the number of the tract or survey. 1889, c. 522, s. 2. Note. For requirement to register surveys, see s. 1722 et seq. 2663. Certificate of survey to be registered. It shall be the duty of the register of deeds in each county, when any grant is pre- sented for registration with a certificate of survey attached, to regis- ter such certificate of survey, together with all endorsements thereon, together with said grant, and a record of any certificate of survey so made shall be read in evidence in any action or proceeding : Pro- vided, the failure to register such certificate of survey shall not invali- date the registration of the gTant. 1905, c. 243. 2664. Keep general index. The board of county commissioners, at the ex])ense of the county, shall cause to be made and consolidated into one book, a general index of all the deeds and other documents in the register's office, and the register shall afterwards keep up such index without any additional compensation. Code, s. 3663; 1868, c. 35, s. 13. 2665. Index instruments. The register of deeds shall provide and keep in his office full and complete alphabetical indexes of the names of the parties to all liens, grants, deeds, mortgages, bonds and other instruments of writing required or authorized to be registered ; such indexes to be kept in well-bound books, and .shall state in full the names of all the parties, whether grantors, grantees, vendors, vendees, obligors or obligees, and shall be indexed and cross-indexed, within twenty-four hours after registering any instrument, so as to show the name of each party under the appropriate letter of the alphabet ; and reference shall be made, opposite each name, to the page, title or number of the book in which is registered any instru- ment. Code, s. 3664; 1899, c. 501; 1876-7, c. 93, s. 1. Note. Faihue to index, misdemeanor, see Crimes, s. 3600. Surveys to be indexed, see s. 1722. 2G0G REGI8TER OF DEED.S— //. Duties of. Ch. 62 2666. Clerk to board of commissioners. The register of deeds is ex officio clerk of the board of county commissioners, and as such shall perform the duties imposed by law or by order of the said board. Code, s. 3C5G; 1868, c. 35, s. 15; Const,, Art. VII, s. 2. Note. For duty in regard to official reports, see s. 919. For general duty as clerk of board, see ss. 1324-1326. 2667. Serve certain notices by mail. The register of deeds shall serve by mail all notices issued by the board of county commis- sioners to justices of the peace, road overseers and school committee- men, in lieu of the service by the sheriff, and shall receive as his compensation his actual expenses for mailing, and nothing- more. Code, s. 3657; 1879, c. 328, ss. 1, 3. 2668. Make out tax lists. The register shall make out the tax lists as directed by law, under the supervision of the board of county commissioners. Code, s. 3G58; 1868, c. 35, s. 16. 2669. Omitted duties, how performed. Whenever, u])on the termination for any cause of the term of office of the register of deeds, it appears that he has failed to perform any of the duties of his office, the board of comanissioners shall cause the same to be per- formed by another person or the successor of any such defaulting register. Such person or successor shall receive for his compensa- tion the fees allowed for such services, and if any portion of the compensation has been paid to such defaulting register, the same may be recovered by the board of county commissioners, by suit on his official bond, for the benefit of the county or person injured thereby. Code, s. 3655; 1868, c. 35, s. 14. Note. Failure to perform duty a misdemeanor, see ss. 3592, 3599. Failure to keep index, misdemeanor, see s. 3600. Entry-taker ex officio, see Grants, s. 1701. County ranger ex oflicio, see Strays. For duties in regard to marriage lieen.se, see Marriage, ss. 2090. 2il91, 2092. For duty in regard to mortgage given by clerk of superior court in lieu of bond, see Bonds, s. 268. Constables' bonds registered by, see Bonds, s. 302. Coroners' bonds registered by, see Bonds, s. 300. For duties in regard to elections, see Elections. For duty to record appointments of deputy clerks, see s. 899. For registration of report establishing dividing fences, sec s. 1668. For registration of timber trademarks, sec s. ,3024. For duty as to official reports, see s. 919. 2070 KELIGIOUS SOCIETIES. Ch. (J3. CHAPTEK 63. RELIGIOUS SOCIETIES. (Sections 2670—2674.) 2670. May appoint trustees. The conference, synod, conven- tion or other eeelesiastieal body, representing any church or relig- ious denomination within the state, as also the religious societies and congregations within the state, may from time to time and at any time, appoint in such manner as such body, society or congregation may deem proper, a suitable number of persons as trustees for such church, denomination, religious society, or congregation, who and their successors shall have power to receive donations, and to purchase, take and hold property, real and personal, in trust for such church or denomination, religious society or congregation. Code, s. 36G7; R. C, c. 97, s. 3; 1796, c. 457, s. 1; 1844, c. 47; 1848, c. 76. 2671. May remove trustees. The body appointing may remove such trustees or any of them, and fill all vacancies caused by death or otherwise; and the said trustees and their successors may sue and be sued in all proper actions, for or on account of the donations and property so held or claimed by them, and for and on accoimt of any matter relating thereto. And they shall be accountable to the said churches, denominations, societies and congregations for the use and management of said property, and shall surrender it to any person authorized to demand it. Code, s. 3608; R. C, c. 97, s. 4; 1796, c. 457, ss. 2, 3; 1844, c. 47. 2672. Title to lands to vest in trustees, or in societies. All glebes, lands and tenements, heretofore purchased, given, or devised for the support of any particular ministry, or mode of worship, and all churches and other houses built for the purpose of public wor- ship, and all lands and donations of any kind of property or estate that have been or may be given, granted or devised to any church or religious denomination, religious society or congregation within the state for their respective use, shall be and remain forever to the use and occupancy of that church or denomination, society or con- gregation, for which said glebes, lands, tenements, property and estate were so purchased, given, granted or devised, or for which the said churches, chapels or other houses of public worship were built; and the estate therein shall be deemed and held to be absolutely 795 2072 RELIGIOUS SOCIETIES. Cli. 63 vested, as between the parties thereto, in the trustees respectively of the said churches, denominations, societies and congregations, for their several use, according to the intent expressed in the conveyance, gift, gTant or will ; and in case there shall be no trustees, then in the said churches, denominations, societies and congregations, re- spectively, according to such intent. Code, s. 3665; R. C, c. 97, s. 1; 1776, c. 107; 1796, c. 457, s. 4. 2673. How to convey land. The trustees of any religious body may mortgage or sell and convey in fee simple any land owned by such body, when directed so to do by such church, congTegation. society or denomination, or its committee, board or body having charge of its finances, and all such conveyances so made or hereto- fore made, or hereafter to be made shall be effective to pass said land in fee simple to the purchaser or to the mortgagee for the pur- poses in such conveyances or mortgage expressed ; and they may sell or mortgage its personal property. 1885, c. 384; 1889, c. 484. 2674. House on vacant land vests title. AH houses and edifices erected for public religious worship on vacant lands, or on lands of the state not for other purposes intended or appropriated, together with two acres adjoining the same, shall hereafter be held and kept sacred for divine worship, to and for the use of the society by which the same was originally established. Code, s. 3666; R. C, c. 97, s. 2; 1778, c. 132, s. 6. Note. For disturbing religious congregation, see s. 3706. For obstructing way to church, see s. 3776. For exhibition of stud-horse, or jack, or natural and artificial curiosities near churches, see s. 3705. CHAPTER 64. RESTORATION TO CITIZENSHIP. (Sections 267.5—2680.) 2675. Petition for. Any person convicted of an infamous crime, wlicrcliy the riglils of citizenship arc forfeited, desiring to be restored to the same, shall file his petition in the su]ierior court, setting forth his conviction and the punishment inflicted, his place or places of residence, his occupation since his conviction, the meritcu-ious causes 2075 EESTORATIOX TO CITIZENSHIP. Ch. 64 which, in his opinion, entitle him to be restored to his forfeited rights, and that he has not before been restored to the lost rights of citizenshiij. Code, ss. 2938, 2940; E. C, c. 58. ss. 1, 3; 1840, c. 3G, s. 4. 2676. When and where petition for, filed. At any time after the expiration of four years from the date of conviction, the petition may be filed in the superior court of the county in which the applicant is at the time of filing and has been for five years next preceding a bona fide resident, or in the superior court of the county, at term, where the indictment M'as found upon which the conviction took place; and in case the petitioner may have been convicted of an infamous crime more than once, and indictments for the same may have been found in different counties, the petition shall be filed in the superior court of that county where the last indictment was found. Code, ss. 2940, 2941; 1897, c. 110; R. C, c. 58, ss. 3, 4; 1840, c. 36, s. 3. 2677. Notice given. Upon filing the petition the clerk of the court shall advertise the substance thereof, at the courthouse door of his county, for the space of three months next before the term when the petitioner proposes that the same shall be heard. Code, s. 2938; E. C, e. 58, s. 1; 1840, c. 36. 2678. Hearing and evidence. The petition shall be heard by the judge at term, at which hearing the court shall examine all proper testimony which may be offered, either by the petitioner as to the facts set forth in his petition, or by any one who may oppose the grant of his prayer. The petitioner shall also prove by five respectable wit- nesses, who have been acquainted with the petitioner's character for three years next preceding the filing of his petition, that his charac- ter for truth and honesty during that time has been good ; but no deposition shall be admissible for this purjiose unless the petitioner has resided out of this state for three years next preceding the filing of the petition. Code, ss. 2938, 2939; 1897, c. 110; 1901, c. 533; E. C, c. 58, ss. 1, 2; 1840, c. 36. 2679. Decree. At the hearing the court, on being satisfied of the truth of the facts set forth in the petition, and on its being proved that the character of applicant for truth and honesty is good, shall decree his restoration to the lost rights of citizenship, and the peti- tioner shall accordingly be restored thereto. Code, s. 2938; R. C, c. 58, s. 1; 1840, e. 30. 2680. Pardon, or suspension of judgment; procedure after. Any person convicted of any crime, whereby the rights of citizenship 2680 EESTOKATION TO CITIZENSHIP. Cb. 64 are forfeited, and the judgment of the court pronounced does not include imprisonment anywhere, and pardon has Ix'cu gi-auted by the governor, or the court suspended judgment on papnent of the costs and the costs have been paid, such person may be restored to such forfeited rights of citizenship upon application, by peti- tion, to the judge presiding at any term of the superior court held for the county in which the conviction was had, one year after such conviction. The petition shall set out the nature of the crime committed, the time of conviction, the judgment of the court, and that pardon has been granted by the governor, and also that said crime was committed without felonious intent, and shall be verified by the oath of the applicant and accompanied by the affidavits of ten reputable citizens of the county, who shall state that they are well acquainted with the applicant and that in their opinion the crime was committed without felonious intent. No notice of the petition in such case shall be necessary, and no advertisement there- of be made, but the same shall be heard by the judge, upon its pre- sentation, during a term of court; and if he is satisfied as to the truth of the matters set out in the petition and affidavits, he shall decree the applicant's restoration to the lost rights of citizenship, and the clerk shall spread the decree upon his minute docket : Pro- vided, that in all cases where the court suspended judgment it shall not be necessary to allege 9r prove that pardon has been granted by the governor and in such cases the petition may be made and the forfeited rights of citizenship restored at any time after conviction. 1899, cc. 44, 249; 1905, c. 547. I'CSI EOADS, ETC.—/. Described. C'li. 65 CHAPTEE 65. ROADS, BRIDGES, FERRIES. Sections. I. Described, 2681—2682 II. Established, 268.3—2691 III. Changed or discontinued. 2692—2694 IV. Bridges, 2695—2705 V. Toll bridges. 2706—2710 VI. Gates across, 2711 VII. Supervisors, 2712—2714 l^III. Overseers, 2715—2724 IX. Who to work, 2725—2726 X. General provisions, I. Described. 2727—2728 2681. What constitutes: board of supervisors. All roads and ferries that have been laid out or appointed by virtue of any act of assembly, or any order of coitrt, are hereby declared to be public roads and ferries; and the justices of the peace in each township shall have the supervision and control of the public roads in their respective townships. They shall, with respect to this work, con- stitute and be styled the board of supervisors of public roads of such township, and under that name, for the purposes aforesaid, they are hereby incorporated the board of supervisors of public roads, and the board of county commissioners, as hereafter in this chapter set forth, shall have fiill power and atithority within their respective counties to appoint and settle ferries, to order the laying out of public roads where necessary, to appoint where bridges shall be made, to discontinue such roads and ferries as shall be found useless, and to alter roads so as to make them more useful. Code, s. 2014: 1887, c. 7.3; 1889, c. 543; 1893, e. 141; R. C, e. 101, s. 1; 1784, c. 227, s. 1; 1868, c. 20, ss. 11, 16, 17, 18; 1868-9, e. 185, s. 14; 1879, c. 82, s. 1. 2682. Width. All roads, except such as are causewayed or through cuts, shall be not less than eighteen feet wide, clear of trees, logs and other obstructions to the passage of ordinary vehicles, and there shall be ten feet in width in the centre of the roadway clear of stumps and runners. Where, by the overseers, it may be deemed expedient to make or repair causeAvays on the same, they shall be at least fourteen feet wide ; and earth, necessary to raise or cover them, shall be taken from either hand, so as to fonn a drain on each side of the causeway ; and they shall make, of the same width, necessary bridges throiigh swamps and over small streams 2682 EOADS, ETC.— 7. Described. L'li. i'.:. of water: Provided, this section shall not apply to the roads in tho,!), S.S. 1, 2. 2715 EOADS, ETC.— F///. Overseers. Ch. 65 VIII. Overseers. 2715. When appointed; when hands allotted. The board of supervisors shall, annually at the meeting- in August, divide the roads of their townships into sections and apjioiut overseers for such sections at said meeting. They shall at the same time allot the hands to the overseers, and shall also designate the boundaries or jwints to which each resident shall be liable to work on each sec- tion, and shall within five days after such meeting certify to each overseer written notice of his appointment, with a list of the hands assigned to his section. The board of supervisors may at any time alter the sections or allotment, but shall give notice thereof to the overseer. Such overseer shall serve, and be liable as such for neg- lect of duty, until he shall be relieved by the board, which shall be done only upon his showing that his road is in good condition as prescribed by law. The overseer may resign after the expiration of twelve months, provided his road shall be in good repair and the board of supervisors shall so find ; and any overseer so resign- ing, and whose resignation has been accepted by the board, shall not withoiTt his consent be again appointed overseer until after the expi- ration of two years from the date of his I'csigiiation. When a pub- lic road shall be a dividing line between townships, the board of commissioners of the county shall determine as to how said road shall be divided, with notice as to the working of said road. The hands may be allotted to a road by allotting all Avho live or shall live within certain boundaries to be fixed by the board of supervisors, in which event a list of the hands by name need not be given, but the list shall specify the hands living in the prescribed territory. Code, s. 2016; 1879, c. 82, ss. 3, 7; 1880, c. 30, s. 1; 1887, c. 93, s. 1. 2716. Reports to supervisors. Every overseer shall at each and every meeting of the board of supervisors of his township make report to them of the present condition of his road, of the number of days worked on his section since last meeting, of the number of hands who attended and worked each day, of the number and names of hands who failed to attend and work; whether or not they were legally summoned, and whether or not they paid the one dollar as provided. The said overseer shall, before some person authorized to administer an oath, make written affidavit that the report is true and correct. Upon this report sworn to as aforesaid, if it shall appear that any of the hands, after being legally simi- moned, have failed to attend and work on said road, and that they did not pay the one dollar, then it shall be the duty of the said supervisors, or any one of them, to issue a warrant for the arrest of any such hand, and shall put him ii]ion trial for the offense: 271G EOADS, ETC.— VIII. Overseers. Ch. 65 Provided, that nothing herein contained shall prevent the overseer of the road from prosecuting, at any time after the offense has been committed, any hand for failure to work on the road, and such cases of prosecution shall be stated in his report to the board of supervisors, that they may not prefer another prosecution for the same offense. Code, s. 2021; 1S79, c. 82, s. 7; 1880, c. 30, s. 4. 2717. To report money collected and how expended. The said overseers shall, at the meeting of the supervisors in August, make a report of all moneys collected by them from parties excused from work on the road for the preceding year, with a statement as to how the same was expended. In case of failure of any overseer to make any report to the board of supervisors of public roads of his township, as provided in this chapter, it shall be the duty of the chairman of such board immediately upon such failure to make a sworn statement of the fact before some justice of the peace of an adjoining township, who shall immediately issue his warrant for the arrest of the said overseer, and proceed to try him for the offense. Code, s. 2022; 1879, c. 82, s. 8. 2718. May lay off tasks to hands. The overseer, if requested by a majority of the hands on the road assigned him, may, in his discretion, lay off the road in equal portions for the convenience of the laborers, who shall finish his or their part in a time agreed on between him and each person, and on default of any agreeing party, the overseer shall cause such part to be finished by the labor of other persons, and by Avarrant may recover the value thereof to his own use: Provided, that the time agreed on shall not exceed six days, and that nothing in this section shall be a defense to the overseer, when prosecuted for default concerning the condition of the road. Code, s. 2026; R. C, c. 101, s. 1.3; 1784, c. 227, s. 10. 2719. May use timber and dirt on roads. Overseers may law- fully cut poles and other necessary timber, for repairing and mak- ing bridges and causeways. And Avhenever earth shall be needed on a public road, and it can not be conveniently procured on- either side of the causeway, the overseer may lawfully take tlie earth from any adjoining land. Code. s. 2027; R. C. c. 101, s. 18; 178.J, c. 25U, s. 1: 1818, c. 970, s. 1. 2720. Notice to work on road, how served. When an overseer shall not be able to personally notify the hands three days before the day a])pointcd for working the road, lie shall leave at the house of each liaml a written summons, specifying tlic day on whicli they 812 2720 ROADS, ETC.— 17//. Overseers. Ch. (\r> are required to attend, the place of the road to be worked, and the kind of tools to be brought or used; and the said written summons, left as aforesaid, shall be deemed sufficient notice to the hands required to be notified; and all penalties recovered by an overseer, for default of working on the road, shall be applied by him to the repair of the road of which he is, or may have been overseer. Code, s. 2044; R. C, o. 101, s. 10; 1842, c. 60'. 2721. When roads to be worked. The overseer of the road shall, as often as the road shall require, not more than six days in any one year, summon the hands of his section to work on the road, but the said hands shall not be required to work continuously for a longer time at any one time than two days, and at least fifteen days shall intervene between workings, except in case of special damage to the road, resulting from a storm. The notice shall be at least three days before the day named for the work, and shall state the hour and the place for the meeting of the hands, and what imple- ment the hand shall bring with him. Every person liable to work on the road who has been so summoned shall appear at the time and place named, and with the implement directed, and shall work on the road under the direction of the overseer imtil dis- charged by him : Provided, that no hand shall be required to work for a less time than seven hours nor a longer time than ten hours in any one day. Any person summoned as aforesaid who shall, by twelve o'clock of the day preceding the one appointed for work on the road, pay to the overseer the sum of one dollar shall be relieved from working on the road for one day. The money thus collected by the overseer shall be by him applied on the working and repairing of the road : Provided further, that any person who shall furnish one able-bodied hand as a substitute, with the imple- ment directed, shall be held to have complied with this chapter. Code, s. 2019; 1879, c. 82, s. 5; 1880, c. 30, s. 3. 2722. Sign-posts put up. Overseers shall cause to be set up, at the forks of their respective roads, a post or posts, with arms point- ing the way of each road, with plain and durable directions to the most public places to which they lead, and with the number of miles from that place as near as can be computed ; and every overseer who shall, for ten days after notice of his appointment, neglect to do so and to keep the same in repair, shall forfeit and pay for every such neglect ten dollars. Code, s. 2030; R. C, c. 101, s. 18; 1784, c. 227, s. 11; 1812, e. 846. 2723. Mile-posts put up correctly. Every overseer of a road shall cause the same to be exactly measured, where it has not already been done, and at the end of each mile, shall mark in a plain, legi- 813 2723 liOADS, ETC.— 17/7. Overseers. Ch. 65 ble, and durable luauner, . the mimbei' of the miles, beginning, con- tinuing, and marking the numbers in such manner and form as the board of supervisors shall direct; and every overseer shall keep up and repair such marks and numbers of his road. If an overseer shall neglect any of the duties prescribed in this section, for the space of thirty days after his appointment to office, he shall for- feit and pay fmir dollars, and the like sum for every thirty days thereafter the said marking may be neglected. Code, s. 2032; R C, c. 101, s. 20; 1784, c. 227, s. 11. 2724. Penalty for neglecting duty. Every overseer who shall neglect to do any other duty, by this chapter directed to be done, or who shall not keep the roads and bridges clear and in repair, or shall let them remain uncleared or out of repair, during the space of ten days, unless hindered by extreme bad weather, shall for- feit for every such offense four dollars, and be liable for such dam- ages as may be sustained: Provided, that nothing in this section shall excuse any neglect of duty by an overseer, as the same is prescribed in any other part of this chapter. Code, s. 2033; R. C, c. 101, s. 21; 1784, c. 227, s. 14. IX. Who to Work. 2725. Who liable. All able-bodied male persons between the ages of eighteen years and foi'ty-five years (between twenty -one years and forty-five years in Columbus and Tyrrell counties) shall be required under the provisions of this chapter to work on the public roads, ex- cept the members of the board of supervisors of public roads ; but no person shall be compelled to work more than six days in any one year, except in case of damage resulting from a storm: Provided, that ten days instead of six days shall be the limit as to the counties west of the Blue Ridge. Code, s. 2017; 1879, c. 82, s. 4; 1880, c. 30, s. 2; 1826, c. 26; 100.5, c. 136. 2726. Who exempt; how exemption obtained. No person be- tween the ages prescribed shall bo exempted from working upon the public roads, except such as shall be exempted by the general assem- bly, or by the board of supervisors of the township, on account of personal infirmity, of which the said board sliall be the sole judge. Code, s. 2018; 11. C., c. 101. s. 12; 1784, c. 227, ss. 8, 9; 1826, c. 26, ss. 1, 2. X. General Provi.sions. 2727. Traction engines allowed on roads, it shall be lawful for any person to rmi and use traction engines and road steamers upon the public roads. Code, s. 2061; 18701, c. 162. 2728 EOADS, ETC.— X. General Provisions. Cli. 05 2728. Owners of land or timber used on road, remedy for. The owner of any IiukI or liinbcr used for buililliig or repairing public roads, may tile his petition before the board of commissioners of the county wherein the injury is done ; and, for damages sustained thereby, the board shall make the petitioner adequate compensation : Provided, that this and section two thousand seven hundred and nine- teen shall not apply to the lands adjoining or contiguous to the cause- way, or great road leading across Eagle's island to Wilmington. Code, s. 2028; E. C, c. 101, s. 16; 1818, c. 976, s. 2. CIIAPTEE G6. SALARIES AND FEES. Sections. I. Legislative department, 2729 — 2735 II. Executive department, 2736—2763 III. Judicial department, 2764 — 2771 IV. General provi.sion, 2772 V. Countv ollicprs, 2773—2786 VI. T()\Mi>liii. .illicers, 2787—2789 VII. ('nimiii>Mnii,.rs. 2790—2797 VIII. Miscellaneous. 2798-2807 I. Legis],ative Department. 2729. Members of general assembly and presiding officers. The members of the general assembly for the term for which they have been elected, shall receive as a compensation for their ser- vices the sum of four dollars per day for each day of their ses- sion, for a period not exceeding sixty days ; and should they remain longer in session, they shall serve without compensation. They shall also be entitled to receive ten cents per mile, both while com- ing to the seat of government and while returning home, the said distance to be comjiuted by the nearest line or route of public travel. The compensation of the presiding officers of the two houses shall be six dollars per day and mileage. Should an extra session of the general assembly be called, the members and presiding officers shall receive a like rate of compensation for a period not exceeding twenty days. Const., Art. II, s. 28. 2730. Clerks and doorkeepers. The princii)al and his assistant clerks, the engrossing clerks and doorkeepers and assistant door- ■ 815 2730 SALARIES AXD FEES—/. Legislative Dept. Ch. GG keei^ers of the general assembly, and the chief clerk and assistants, appointed by the secretary of state to supervise the enrolhnent of bills and resolutions, shall each receive four dollars per day, during the session of the general assembly, and the same mileage as mem- bers of the general assembly. Code, ss. 2871, 2872; 1903, c. 5, s. 2; 1901, c. 631; ISOO, cc. G, 7: 1897, c. 52. 2731. Copyists. Copyists employed in copying engrossed or en- rolled bills and resolutions of the general assembly shall receive ten cents per copy sheet, which shall include the making of one car- bon copy. 1903, c. 5. 2732. Principal clerks; extra compensation. The principal clerks of the general assembly shall be allowed one hundred dollars as a compensation for indexing the journals of their respective houses, and two hundred dollars each for extra work and for serv- ices required to be performed by them after the adjournment of each session of the general assembly, including the transcribing of a. copy of their respective journals, which shall be filed in the office of the secretary of state. Code, s. 2868; 1866-7, c. 71; 1881, c. 292. 2733. Indexing laws, etc. The assistant to the secretary of state who shall index the laws and prepare the laws and captions for publication shall receive a compensation of iive hundred dollars. 1903, c. 3. 2734. Temporary doorkeepers. The persons appointed to place the two halls of the general assembly in order, and to wait upon the members luitil doorkeepers can be regularly appointed, shall be allowed, as a compensation, the sum of four dollars each for their daily attendance and services. Code, s. 2871; E. C, c. 52, s. 38; 184G, e. 63, s. 2. 2735. Employees, how paid. The auditor is authorized to audit the account of any employee of the senate or of the house of repre- sentatives, upon the certificate of the president of the senate and of the speaker of the house of representatives that such services have been rendered for which the account is presented, and that the amount as stated in said account is reasonable, just and proper. Code, s. 2873; 1870-1, ros. p. 508. II. Executive Depaetment. 2736. Governor. The salary of the governor shall bo four thou- sand dollars ]ier amuuu. Code, s. 3720; 1901, o. 8; 1879. c. 240. sk; 27:37 SALiVEIES AND FEES—//. Executive Dept. Ch. 06 2.121. Private secretary. The i^rivate secretary to the governor shall be allowed an annual salary of twelve hundred dollars, and he shall charge and collect the following fees, to be paid by the persons for whom the services are rendered, namely: For the commission of a judge, solicitor, senator in congress, representative in congress, notary public, or a place of profit, two dollars and fifty cents each ; for a testimonial, one dollar ; for affixing the seal to a grant, twenty- five cents ; and for affixing the great seal of the state to state bonds, ten cents. All fees, except fifty cents on each commission issued, which shall be retained by the private secretary for his services, received by the private secretary shall be paid into the treasury quarterly. He shall be ex officio secretary of the board of internal improvements, and shall be allowed five dollars per day for each day the board is in session. Code, ss. 1689, 3721; 1901 (Pr.), c. 405; R. C, c. 102, s. 12; 1856-7, p. 71, res.; 1881, c. 346; 1903, e. 729. 2738. Executive Clerl<. The governor is allowed a clerk at a salary of six hundred dollars per annvmi. Code, s. 3722; 1876-7, p. 589, res.; 1881, c. 218. 2739. Treasurer. The salary of the treasurer shall be three thou- sand dollars per annum. He shall be allowed two clerks, at salaries respectively of fifteen hundred and seven hundred and fifty dollars per annum, and an institutional clerk, at a salary of one thousand dollars per annum. Code, s. 3723; 1891, c. 505. 2740. Committee to examine treasurer's and auditor's books. The connnittee appointed by the general assembly to examine the books of the treasurer and auditor and insurance commissioner shall receive the same per diem for the number of days engaged at the offices in Raleigh, and mileage to and from the city of Raleigh, as is received by members of the general assembly. Code, s. 3360; 1885, c. 334. 2741 . Secretary of state. The salary of the secretary of state shall be two thousand dollars per annum, and one thousand two hundred dollars for clerical assistance. All fees received by said officer shall be paid into the treasury, unless otherwise directed by law ; such fees to be paid in quarterly. The secretary of state shall also be allowed one thousand dollars for additional clerical assistance in the dis- charge of the duties of his office, and the treasurer shall pay the same, upon the warrant of the auditor, out of the fees collected by the secretary of state and paid into the treasury. The secretary of state shall appoint a clerk, who shall be designated the cor]ioration clerk. Rev. Vol. 1—48 817 2741 SAL.\EIES AND FEES— 7/. Executive Dept. Ch. 66 He shall be paid, out of the moneys derived from the ornaiiization taxes on corporations, a salary of twelve hundred dollars per annum, and shall perform such duties as the secretary of state shall require of him. Code, s. 3724; 1901, c. 2, s. 108; 1005, c. 549; 1879, c. 240, s. 6; 1881, p. 632, res. 2742. Secretary of state; fees collected by. The secretary of state shall ci.illect the following fees, namely: Copying and certifying a will, grant or patent not exceeding two copy-sheets, hfty cents, and for every additional cojay-sheet, ten cents; correcting an error not made by himself in a patent, fifty cents; copying and certifying a plot and survey, fifty cents for each warrant or for each six hundred and forty acres contained in the plot or survey, not to exceed five dol- lars for one copy; receiving surveyor's return, making out, record- ing and endorsing grants, sixty cents ; each certificate, ten cents ; filing and recording a copy of a judgment vacating a gTant and all other services thereon, fifty cents; copying an entry from the jour- nals of the assembly, forty cents ; copying and certifying the laws of other states, twenty cents for each copy-sheet; and in all cases not otherwise provided for, the secretary of state shall receive for copies of records from his office, one dollar for the first three copy-sheets and ten cents a copy-sheet thereafter. Code, s. 3725; R. C, c. 102, s. 13; 1870-1, c. 81, s. 3; 1881, c. 79. 2743. Fees on returns to secretary of state. All oSieers re- quired to make returns to the secretary of state shall receive for such returns five cents per copy-sheet, to be audited on the certifi- cate of the secretary of state, and paid as other claims against the state. Code, s. 3759; 1868-9, c. 279, s. 557. 2744. Auditor. The auditor shall receive a salary of fifteen hundred dollars per annum, and shall be allowed no fee or other compensation whatever. He shall be allowed one clerk at a salary of one thousand dollars per annum; and he is authorized to enx])lov additional clerical assistance in his office, and for that purpose shall be allowed the sum of five hundred dollars ; and he is further author- ized to expend annually oixt of the pension fund, as he may deem best and necessary to the more certainly carrying into effect the pen- sion laws, the sum of three hundred dollars. Code, s. 3726; 1879, c. 240, s. 7; 1881, e. 213; 1885, c. 352; 1899, c. 433; 1891, c. 334, s. 5. 2745. Superintendent of public instruction. The superintendent of public instruction shall receive an annual salary of two thousand 2745 SALAKIES AND FEES— 77. Executive Dept. Cli. 66 (li)llars and one thousand dollars per annum in lieu of and in com- mutation for traveling expenses. He shall be allowed two clerks, at a salary of one thousand two hundred and fifty dollars per aimum each, one to be paid out of the loan fund for building school-houses; and a stenographer at six hundred dollars per annum. Code, s. 3727; 1901, c. 4, ss. 9, 11; 1903, c. 435, s. 2; 1903, c. 567, s. G; 1903, c. 603; 1S79, c. 240, s. 8; 1905, e. 533, ss. 2, 15, 16. 2746. Attorney general. The attorney general shall receive an annual salary of two thousand dollars and also one hundred dollars for each terra of the sviprerae court which he shall attend and the fees allowed by law. He shall be allowed a clerk at a salary of six hundred dollars per annum. Code, ss. 3728, 3729; 1889, c. 274; 1893, c. 379. 2747. Fees of attorney general. In all appeals to the supreme court of persons convicted of criminal offenses, a fee of ten dollars against each person who shall not reverse the judgment shall be allowed the attorney general, to be taxed among the costs of that court. Code, s. 3737 ; 1873-4, c. 170. Note. For fees in actions by corporation commission, see s. 1092. 2748. State librarian. The salary of the state librarian shall be one thousand dollars per annum. He shall be allowed one assistant, at a salary of three himdred dollars per annum. He shall be allowed the sum of two hundred and fifty dollars per annum for services as custodian of the document library, and the sum of one dollar per day during the sessions of the general assembly, for keeping the docu- ment library open. The state librarian shall be allowed to charge the fee of fifty cents for each seal and certificate, and in addition thereto he shall receive ten cents per copy-sheet for all documents, papers, copies of instruments of every description whatsoever per- taining to his ofiice which he shall be called upon to furnish to any person interested in same, to be paid by party securing such copy of record. Code, s. 3604; 1901, c. 503, s. 1; 1887, c. 258, s. 3; 1889, res., p. 519: 1905, c. 537. 2749. Commissioner of agriculture. The board of agriculture may fix the salary of the commissioner of agi'iculture not to exceed two thousand one hundred and fifty dollars per annum, which shall be paid out of the fertilizer tax fund. 1901, c. 479, s. 4; 1905, c. 529. 2750. Adjutant general. The salary of the adjutant general shall be one thousand dollars per annum. The adjutant general shall be 819 2750 SALAEIES AND FEES— 77. Execulice Dept. Ch. 06 allowed all such necessary expenses as may be incurred in printing, clerk hire, making the blank forms, books, orders and reports required in his office not to exceed one thousand dollars. Code, ss. 3275, 3730; 1899, c. 390, ss. 2. 3; 1879, c. 240, s. 10; 1883, c. 283, s. 2. 2751. Paymaster general. The paymaster general shall receive an annual salary of live hundred dollars, payable out of the appro- priation for the support of the national guard in this state. 1903, c. 548, s. 7. 2752. Quartermaster general. The quartermaster general shall receive an annual salary of five hundred dollars, payable out of the appropriation for the support of the national guard in this state. 1890. c. 390, s. 2. 2753. Commissioner of labor and printing. The salary of the commissioner of labor and printing shall be fifteen hundred dollars per annum; and the salary of the assistant commissioner shall be nine hundred dollars per annum. They shall also receive their actual traveling expenses while traveling for the pui'pose of collecting the information and statistics as provided by law. 1899, c. 373, s. 3. 2754. Corporation commissioners. The salary of the corpora- tion commissioners shall be two thousand dollars per annum each, and in addition thereto five hundred dollars per annum each as state tax commissioners ; and also actual traveling expenses while on offi- cial business. They may elect a clerk, who shall be an expert accoiuit- ant, experienced in railroad statistics and transportation rates, whose salary shall be fifteen hundred dollars per annum, and the commis- sioners may, out of the expense fund of the corporation commission, allow such clerk an extra allowance above his regular salary in such manner as in their judginent may be expedient, not exceeding three hundred dollars. They may employ such clerks as they may deem necessary for the purpose of putting into eifect the provisions of the law as to the work of the state tax commission, and shall pay such clerks each such sum and in such manner as tliey may think proper, the total not exceeding the sum of fifteen hundred dollars a year. 1899, c. 164, s. 31: 1899, c. 688; 1901, c. 7, s. 2 ; 1905. c. 590, s. 3: 1903, c. 251. 8S. 2, 3. 2755. Bank examiners. One examination each year shall be des- ignated as the annual examination, and for each examination the bank, corporation, association, or individual so examined shall pay into the office of the corporation commission, to be paid to the examin- ers, an examination fee as follows: Baid^s, banking institutions or 820 l'755 salaries and FEES— 77. Executive Dept. Ch. 66 individuals doing a banking business, having a capital of twenty- live thousand dollars or less, shall pay a fee of fifteen dollars; those liaving a capital stock of more than twenty-five thousand dollars and 111 it over fifty thousand dollars, twenty-five dollars; those having a lapital stock of over fifty thousand dollars, thirty dollars. The ex- penses incurred and services, other than examinations performed c-ipecially for any bank, shall be paid by such bank or banlving insti- tution. No bank shall be compelled to pay for more than one exami- nation in each year, unless it shall appear from report, examination or otherwise that the condition of any bank or banking institution or banker is precarious, or in any way unsatisfactory, when it shall lie the duty of the commission to order a special examination, which ^liall be paid for as regular examinations. 1903, c. 275, 3. 25. 2756. Insurance commissioner. The salary of the insurance commissioner shall be two thousand dollars per annum. He may- employ in his department such clerical aid as he may deem necessary, at an exjjense not exceeding sixteen hundred dollars per annum. To reimburse the commissioner for his services and expenses in inspect- ing state property and placing insurance thereon, he is allowed to collect a sum not exceeding three per centtim of the premiums thereon of the agent writing the insurance. 1899, e. 54, ss. 3, 8; 1901, c. 710; 1903, c. 42: 1903. c. 771, s. 3. 2757. Geological board; geologist and assistants, in attend- ing its meetings the members of the geological board shall be reim- bursed the amount of their actual traveling expenses, and members not otherwise receiving a salary from the state may in addition be paid a per diem of four dollars for not exceeding eight days during any one year. The compensation of the state geologist and of such experts and assistants shall be fixed by the geological board. 1905, e. 542. ss. 2, 3. 2758. Board of internal improvements. The members of the board of internal imiivoveinonts shall receive, each, five dollars per day, and their traveling expenses for the time they may be employed in the public service. Cade. s. 1089; 1903, c. 729. 2759. State standard-keeper. The state standard-keeper shall be allowed such compensation for his services as the governor shall deem adequate, not exceeding one hundred dollars a year. Code, s. 3845; 180G-7, p. 228; 1881, c. 199, s. 4. 27fiO SALAEIES AND FEES—//. Executive DepL Ch. 66 2760. state board of elections. The members of the state board of elections shall receive in full eiimpensation for their services four dollars per day for the time they are actually engaged in the dis- charge of their duties, together with their actual traveling expenses, and such other expenses as are necessary and incident to the dis- charge of the duties imposed by the law relating to elections. mOl, c. R!), o. 7. 2761. Presidential electors. Presidential electors shall be al- lowed for their traveling expenses to and from the city of Raleigh and their attendance, the same compensation as may be allowed mem- bers of the general assembly, and shall be entitled to the same privi- 1901, e. S9, s. S4. 2762. Laborers. The governor's office, the treasurer's office, the auditor's office, the secretary of state's office and the state librarian's office shall each be allowed one servant, and the offices of superintend- ent of public instruction and attorney general, one together. The jus- tices of the supreme court shall be allowed to employ one servant. Such servants shall receive, as coni]iensation, the sum of seven dollars per week, to be paid by the treasurer on the pay-rolls of the keeper of the capitol. The night-watchman and janitor shall each receive as compensation one and one-half dollars per day for their services. Code, s. 3732; 1893, e. 306; 1899, c. 482; 1901, c. 624. 2763. Laborer's leave of absence, commutation. Every la- borer, waiter and messenger permanently employed under authority of law in and about the public buildings and grounds at a salary not exceeding four hundred dollars per annum, who shall have served faithfully therein for the space of one continuous year, shall be enti- tled to fifteen days leave of absence per aniumi, with full pay at the end of every year of s\ich service. 1S97, e. 274. III. Judicial Department. 2764. Supreme court justices. Each justice of the supreme court shall be paid an annual salary of three thousand dollars, and two hundred and fifty dollars per annum in lieu of and in com- mutation for traveling expenses. They shall aLso be allowed two hundred dollars per annimi each for a clerk. Code, s. 3733; 1891, c. 193; 1903, c. 805; 1905, c. 208. 2765. Superior court judges. The salary of each of the judges of the sujieriiir cnurt shall be three thousand dollars per annum, and two hundred and fifty dollars per annum in lieu of and in coramu- 27t)5 SALAEIES AND FEES—///. Judicial Dept. Ch. 66 tation for traveling expenses. They shall also receive their actual expenses incurred in attending and holding special terms of court by assignment of the governor, which expenses shall be paid by the county in which such special term is held. Code, ss. 918, 3734; 1891, c. 193; 1901, c. 167; 1905, c. 208. 2766. Certificates of courts held by judges. Every judge of the superior court shall produce a certificate from the clerk of each county of his having held the court of the county according to law ; and for every such certificate omitted to be produced, there shall be a deduction from his salary of one hundred dollars, unless he shall be prevented by sickness or other unavoidable cause. Code, s. 3735; R. C, c. 102, s. 4; 18G8-9, c. 46, s. 7; 1879, c. 240, s. 5. 2767. Solicitors. The solicitors of the several judicial districts shall receive twenty dollars for each term of the superior court they shall attend, warrant by the auditor to issue therefor ujaon a certifi- cate of such attendance from the clerk of the court ; and the fees as prescribed in the following section. Code, s. 3736; 1879, c. 240, s. 12. 2768. Fees of solicitors. The solicitors shall, in addition to the general compensation allowed them by the state, receive the follow- ing fees, and no other, namely : For every conviction upon an indictment which they may prose- cute for a capital crime, twenty dollars. For perjury, forgery, counterfeiting, passing or attempting to pass or sell any forged or counterfeited paper or evidence of debt; maliciously injuring or attempting to injure any railroad or rail- road car, or any jjerson traveling on such railroad car ; stealing or obliterating records ; stealing, concealing, destroying or obliterating any will; malicioiisly burning or attempting to burn houses or bridges ; misdemeanors of accessories after the fact to felonies ; in each of the above cases, ten dollars. For larceny, receiving stolen goods, embezzlement, frauds, maims, deceits and escapes, five dollars. For all other oft'enses, four dollars. The fees in all the above cases are to be taxed in the costs against the party convicted ; but where the party convicted is insolvent, the solicitor's fees shall be one-half, to be paid by the county in which the indictment was found, except that for convictions in capital felonies, forgery, perjury and conspiracy, when they shall receive full fees: Provided, that no larger fee than ten dollars shall be taxed for the solicitor in any indictment against the justices of the peace of any county, as justices, when there are more tiian three justices who are found guilty. 27CS SALARIES AXD FEES—///. Judicial Dept. Ch. 66 The solicitors of the several judicial districts and criminal courts shall prosecute all penalties, and forfeited recognizances entered in their courts respectively', and as compensation for their services shall receive a sum to be fixed by the court, not more than five per centum of the amount collected upon such penalty or forfeited re- cognizance. For performing his duty for the appointment of a receiver of an estate of a minor, they shall receive not to exceed ten dollars, to be fixed by the judge ; and in passing on the returns of the receivers in .such cases where the estate of the infant does not exceed five hun- dred dollars, the fee of the solicitor shall not exceed five dollars, and where the estate exceeds five hundred dollars, his fee shall not exceed ten dollars, to be fixed by the judge, and in each case to be paid out of the fund. Code, s. 3737; 1885, c. 130; 1895, c. 14; 1901, c. 4, s. 5; 1873-4, c. 170. Note. For suits by corporation commission, see s. 1092. For fees for investigating lynchings, see s. 1288. 2769. Supreme court clerk. The clerk of the supreme court shall receive an annual salary of three hundred dollars, to be paid semi-annually, on a certificate of the justices; and, in addition thereto, the following fees, namely : 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 esti- mated by the justices of the court at each term, not to exceed thirty cents for each page recorded, to be paid by the treasurer on the certifi- cate of the justices ; for entering an appeal, one dollar ; a con- tinuance, thirty cents ; a scire facias, eighty cents ; a certiorari, eighty cents; a determination, two dollars; a certificate, sixty cents; a fieri facias, or other execution, fifty cents ; a seal, twenty-five cents ; a transcript, or copy of a record, twenty cents for each copy-sheet; a rule given for service, twenty-five cents ; a rule not for service, fifteen cents ; a subpoena, writ, or other process, one dollar ; a com- mission, fifty cents; drawing a decree or judgment, by the copy- sheet, forty cents ; a search, ten cents ; aflixing the seal to any writ- ing requiring it, twenty-five cents ; and nn affidavit, twenty-five cents. Code, s. 3738; R. C, c. 102, ss. 25, 26; 18701, c. 139, s. 7. 2770. Supreme court marshal. The salary of the marshal of the supreme court sliall be une thousand dollars per annum; and he shall perform the duties of librarian witlumt additional compensa- tion. Code, .ss. 950, 3000: 1889, c. 482; 1873-4, c. 34; 1881. c. 300. Note. See s. 1555. 2771 SALARIES AND FEES—///. Judicial Dept. Ch. 66 2771. Supreme court reporter. The compensation of the su- preme court reporter shall not exceed one thousand two hundred and fifty dollars per annum, to be fixed by the court. Code, ss. 33G3, 3728; 1893, e. 379; 1897, c. 429. Note. See s. 1552. IV. General Pkovisiojv. 2772. Salaries payable monthly. All annual salaries shall be paid monthly out of any money in the treasiiry not otherwise appro- priated. Code, s. 3731; 1893, c. 54. V. County Okficers. 2773. Superior court clerk. The fees of the clerk of the su- perior court shall be the following, and no other, namely : Advertising and selling under mortgage in lieu of bond, two dol- lars for sales of real estate and one dollar for sales of personal prop- erty. See s. 266. Affidavit, including jurat and certificate, twenty-five cents. Appeal from justice of the peace, fifty cents. Appeal from the clerk to the judge, fifty cents. Appeal to the supreme court, including certificate and seal, two dollars. Appointing and qualifying justices of the peace, to be paid by the justice, twenty-five cents. Apprenticing infant, including indenture, one dollar. Attachment, order in, fifty cents. Auditing account of receiver, executor, administrator, guardian or other trustee, required to render accounts, if not over three hun- dred dollars, fifty cents ; if over three hundred dollars and not ex- ceeding one thousand dollars, eighty cents; if over one thousand dol- lars, one dollar. Auditing final settlement of receiver, executor, administrator, guardian or other trustee, required to render accounts, one-half of one per cent, of the amount on which commissions are allowed to such trustee, for all sums not exceeding one thousand dollars ; and for all Slims over one thousand dollars, one-tenth of one per cent, on such excess; but such fees shall not exceed fifteen dollars, unless there be a contest, when the clerk shall have one per cent, on the said excess over one thousand dollars; but in no instance shall his fees exceed twenty-five dollars. 2773 SAL^VRIES AXD FEES— 1'. County Officers. Ch. 6C Auditing and recording the final account of commissioners ap- l^oiuted to sell real estate, one-half of the fees allowed for auditing and recording final accounts of executors. Bill of costs, preparing same, twenty-five cents. Bond or undertaking, including justification, sixty cents. Cancelling notice of lis pendens, twenty-five cents. Capias, each defendant, one dollar. Capias, when the defendant is not arrested thereunder, shall \>r such sum as the commissioners of his county may allow. Caveat to a will, entering and docketing same for trial, one dollar. Certificate, except where it is a charge against the county, twen- ty-five cents; and whei'e it is a charge against the county, the fee shall be such sum not exceeding twenty-five cents as the board of commissioners shall allow. Commission, issuing, seventy-five cents. Continuance, thirty cents. Docketing ex parte proceedings, fifty cents. Docketing indictment, twenty-five cents. Docketing liens, twenty-five cents. Docketing judgment, twenty-five cents. Docketing summons, twenty-five cents. Execution and return thereon, including docketing, fifty cents ; and certifying return to clerk of any county where judgment is docketed, twentv-five cents. Filing all papers, ten cents for each case. Guardian, ai:)pointment of, including taking bond and j\istifica- tion, one dollar. Impaneling jury, ten cents. Indexing judgment on cross-index book, ten cents for the judg- ment regardless of number of parties. Indexing liens on lien book, ten cents. Indictment, each defendant in the bill, sixty cfnts. Injunction, order for, including taking bond or undertaking and justification, one dollar. Jiidgment, final, in term-time, civil action, one dollar. Judgment, final, against each defendant, in criminal actions, one dollar. Judgment, final, before the clerk, fifty cents. Judgment by confession, without notice, all services, three dciUavs. Judgment in favor of Avidow for year's support, fifty cents. Judgment nisi, entering against a defaulting witness or juror, on bail bond or recognizance, twenty-five cents. Juror ticket, including jurat, ten cents. Justification of sureties on any bond or undertaking, except as otherwise provided, fifty cents. 2773 SALAEIES AND FEES— 7. County Officers. Ch. 66 Letters of administration, including bond and justification of sureties, one dollar. Motions, entry and record of, twenty-five cents. Notices, twenty-five cents; and for each name over one, in same paper, ten cents additional. Notifying solicitors of removal of guardian, one dollar. Order enlarging time for pleading, and all interlocutory orders, in special proceedings and civil actions, twenty-five cents. Order of arrest, one dollar. Order for appearance of apprentice, on complaint of master, one dollar; for appearance of master on complaint of apprentice, one dollar. Order for the registration of a deed or other writing, which has been proved or acknowledged in another county, or before a judge, justice, notary or other officer, except a chattel mortgage, twenty- five cents. Postage, actual amount necessarily expended. Presentment, each person presented, ten cents. Probate of a deed or other writing, proved by a witness, includ- ing the certificate, twenty-five cents. Probate of a deed or other writing, acknowledged by the signers or makers, including all except married women who acknowledge at the same time, with the certificate thereof, twenty-five cents. Probate of a deed, or other writing, executed by a married wo- man, for her acknowledgment and private examination, with the certificate thereof, twenty-five cents. Probate of a chattel mortgage, including the certificate, ten cents. Probate of a short form lien bond, or lien bond and chattel mort- gage combined, ten cents, in the following counties : Alamance, Alle- ghany, Anson, Ashe, Beaufort, Bladen, Brunswick, Buncombe, Burke, Carteret, Caswell, Catawba, Chatham, Chowan, Cleveland, Colmnbus, Craven, Cumberland, Davie, Duplin, Durham, Edgecombe, Forsyth, Franklin, Gaston, Gates, Granville, Greene, Harnett, Iredell, John- ston, Jones, Lenoir, Lincoln, Martin, McDowell, Mecklenburg, Moore, Nash, New Hanover, Onslow, Pender, Perquimans, Person, Pitt, Polk, Richmond, Bobeson, Rockingham, Rowan, Rutherford, Sampson, Union, Vance, Washington, Wataiiga, Wayne, Wilson. Probate of limited partnership, fifty cents. Probate of will in common form and letters testamentary, one dollar. Qualifying justice of the peace, to be paid by the justice, twenty- five cents. Qualifying members of the board of commissioners, to be paid by the commissioners, twenty-five cents. Recognizance, each party where no bond is taken, twenty-five cents. 827 2773 SALAKIES AND FEES— 7. County Officers. Ch. 66 Recording and copying papers, per copy-sheet, ten cents. Recording names, qualitication, and expiration of term of office of justices of the peace, five cents for each name. Registering trained mirses, including certificate of registration, fifty cents. Recording certificates of incorporation of corporations, three dol- lars. Recording names of jurors as required by law, five cents for each name. Resignation of guardian, relinquishment of right to administer, or to qualify as executor, receiving, filing and noting same, twenty- five cents. Seal of oifice, Avhen necessary, twenty-five cents. Subpcena, each name, fifteen cents. Summons, in civil actions or special proceedings, including all the names therein, one dollar, and for every copy thereof, twenty- five cents. Transcript of judgment, twenty-five cents. Transcript of any matter of record or papers on file, j^er copy- sheet, ten cents. Trial of any cause, or stating an account, as referee, pursuant to order of the judge, such allowance as the judge may make. Witness ticket, including jurat, ten cents. Five per cent, commissions shall be allowed the ck'rk on all fines, penalties, amercements and taxes paid the clerk by virtue of his office ; and three per cent, on all sums of money not exceeding five hundred dollars placed in his hands by virtue of his office, except on judgments, decrees, and executions; and iipon the excess over five hundred dollars of such sums, one per cent. In Robeson county the board of commissioners may make an allowance to the clerk of the superior court for keeping the records of the court and transcribing the minutes, to be paid out of the gen- eral county fund. Code, ss. 229, 1739, .3109, .3739; 1885, c. 199; 1893. e. 52, s. 4; 1897, c. 68; 1899, c. 17, s. 2; 1899, c. 247, s. 3; 1899, cc. 578, 2G1 : 1901, ce. 121, 614, s. 3; 1903, c. 359, s. 6; 1905, c. 360, s. 3. Note. Judge fixes in certain settlements, see s. 151. For compensation for keeping money paid into court, see Administration, s. 151. For fees in organization of corporations, see s. 1235. For salary in Guilford county, see 1905, c. 275. For fees in Franklin county, see 1905, c. 345. For salary in Forsyth county, see 1905, c. 436. For fees in Mecklenburg county, see 1905, e. 829, s, 3. For addilional compensation in Beaufort county, see 1905, p. 835. 2774. Clerks must keep fee bill posted. Every clerk sliall keep posted in his office in some conspicuous jilaco tlie foe bilk for pnl)- 2774 SALAEIES AND FEES— F. County Officers. Ch. 66 lie inspection and reference, under a penalty of one hundred dollars for such neglect, to be paid to any person who will sue for the same. Code, s. 3740. 2775. Coroners. Fees of coroners shall be the same as are or may be allowed .sheriflFs in similar cases: For holding an inquest over a dead body, five dollars ; if nece.s- sarily engaged more than one day, for each additional day, five dollars. For burying a pauper over whom an inquest has been held, all necessary and actual expenses, to be approved by the board of county commissioners, and paid by the county. It shall be the duty of every coroner, where he or any juryman shall deem it necessary to the better investigation of the cause or manner of death, to summon a physician or surgeon, who shall be paid for his attendance and services ten dollars, and such further STim as the commissioners of the county may deem reasonable. But in the county of Buncombe, when the coroner is a physician and STirgeon he shall, at the request of one or more of the jurymen, make the investigation as to the cause and manner of death, and shall receive such fee or compensation as the board of commissioners of Buncombe county shall deem just and reasonable, in addition to the fee for holding the inquest over said dead body. Code, s. 374.3; 1903. c. 781. 2776. Register of deeds. The register of deeds shall be allowed, while and when acting as clerk to the board of commissioners, such per diem as such board may respectively allow, not exceeding two dollars; and shall be allowed the following fees for his services as register of deeds: For registering any deed or other writing authorized to be regis- tered by them, with certificate of probate or acknowledgment and private examination of a married woman, containing not more than three copy-sheets, eighty cents ; and for every additional copy-sheet, ten cents. Registering chattel mortgage, statutory form, twenty cents. Registering short form of lien bond, or lien bond and chattel mort- gage combined, fifty cents in the counties of Davidson, Franklin, Halifax, Lenoir, Northampton, Scotland and Union ; twenty cents in the counties of Anson, Chatham, Columbus, Cleveland, Iredell, Johnston, and Mecklenburg; and thirty cents in the counties of Alamance, Alleghany, Ashe, Beaufort, Bladen, Brunswick, Bun- combe, Burke, Carteret, Caswell, Catawba, Chowan, Craven, Ciim- berland, Davie, Duplin, Durham, Edgecombe, Forsyth, Gaston, Gates, Granville, Harnett, Hertford, Jones, Lincoln, Martin, Mc- 829 277G SALAEIES AND FEES— F. County Officers. C'li. M Dowell, Moore, Kash, New Hanover, Ouslow, Pender, Perquimans, Person, Pitt, Polk, Eiehmond, Robeson, Rockingham, Rowan, Ruth- erford, Samjjson, Vance, Washington, Watauga, Wayne and AVilsou. For comparing and certifying a copy of any instrument tiled for registration, when the copy is furnished by the party filing the in- strimient for registration and at the time of filing, one dollar. For a copy of any record or any paper in their offices, like fees as for registering the same. For issuing each notice required by the county commissioners, including supoenas for witnesses, fifteen cents. This shall not in- clude county orders issued on the treasury. Recording and issuing each order of commissioners, ten cents. Where a standing order is made for the payment of money, monthly or otherwise, there shall be charged but one fee therefor. Making out original tax list, two cents for each name thereon ; for each name on each copy required to be made, two cents. Issuing marriage license, one dollar. For transcript and certificate of limited partnership, fifty cents. For recording the election returns from the various voting pre- cincts, ten cents per copy-sheet, to be paid by the county. For registering conditional sales of personal property in Nash county thirty-five cents on the first three hundred words and ten cents per copy-sheet on the excess of three hundi'ed words. Code, ss. 710, 3109, 3751; 1887, c. 283; 1891, c. 324; 1897, ec. 27, 68; 1899, c. 17, s. 2; 1899, c. 247, s. 3; 1899, cc. 261, 578, 723; 1901, c. 294; 1903, c. 792; 1899, c. 302; 1905, ce. 226, 319, 392. Note. For fees in relation to strays, see Strays. For registering affidavits of sales for taxes, see s. 2904. For short form of lien bond, see s. 2055. For salary of register of deeds of Guilford county, see 1905, c. 275. For fees of register of deeds of Mecklenburg county, see 1905, c. 829. s. 2. 2777. Sheriffs. Sherifi's shall be allowed the following fees and expenses, and no other, namely : Executing summons or any other writ or notice, sixty cents; but the' board of county commissioners may fix a less sum than sixty cents, but not less than thirty cents, for the service of each road order. Arrest of a defendant in a civil action and taking bail including attendance to justify, and all services connected therewith, one dol- lar. Arrest of a person indicted, including all services connected witli the taking and justification of bail, one dollar. Imprisonment of any person in a civil or criminal action, thirty cents ; and release from prison, thirty cents. Executing subpoena on a witness, thirty cents. Conveying a prisoner to jail to another county, ten cents jier mile. 2777 SALAEIES AND FEES— 7. County Officers. Cli. 66 For prisoner's guard, if any necessary, and approved by the county commissioners, going and returning, per mile for each, five cents. Expense of guard and all other expenses of conveying prisoner to jail, or from one jail to another for any purjDOse, or to any place of i^unishmeut, or to appear before a court or justice of the peace in another county, or in going to another county for a prisoner, to be taxed in the bill of costs and allowed by the board of commission- ers of the county in which the criminal proceedings were instituted. For allotment of widow's year's allowance, one dollar. In claim and delivery for serving the original papers in each case, sixty cents, and for taking the property claimed, one dollar, with the actual cost of keeping the same until discharged by law, to be paid on the affidavit of the returning officer. For conveying prisoners to the penitentiary, two dollars per day and actual necessary expenses; also one dollar a day and actual necessary expenses for each guard, not to exceed one guard for every three prisoners, as the sheriff upon affidavit before the clerk of the superior court of his county shall swear to be necessary for the safe conveyance of the convicts, to be paid by the state treasurer upon the warrant of the auditor, out of any money in the treasury not other- wise appropriated. The sheriff shall file with the auditor the affi- davit above mentioned, together with a fully itemized account, to be sworn to before the auditor, showing the number of days requisite for coming and returning and the actual expense of conveying said convicts and the guard necessary for their safe-keeping, and if the auditor approves said account, he shall issue his warrant on the treasurer for the amount thereof. Providing jDrisoners in county jail with suitable beds, bed-clothing, other clothing and fuel, and keeping the prison and grounds cleanly, whatever sum shall be allowed by the commissioners of the county. Collecting fine and costs from convict, two and a half per cent, on the amount collected. Collecting executions for money in civil actions, two and a half per cent, on the amount collected ; and the like commissions for all moneys which may be paid to the plaintiff by the defendant while the execution is in the hands of the sheriff. Advertising a sale of property imder execution at each public place required, fifteen cents. Seizing specific property under order of a court, or executing any other order of a court or judge, not specially provided for, to be allowed by the judge or court. Taking any bond or imdertaking, including furnishing the blanks, fifty cents. 831 2777 SALARIES AXD FEES— T'. County Officers. Cb. 66 The actual expense of keeping all property seized \inder process or order of court, to be allowed by the court on the affidavit of the officer in charge. A capital execution, ten dollars, and actual expenses of burying the body. Summoning a grand or petit jury, for each man summoned, thirty cents, and ten cents for each person summoned on the special venire. For serving any writ or other process with the aid of the county, the usual fee of one dollar, and the expense necessarily incurred thereby, to be adjudged by the county commissioners, and taxed as other costs. All just fees paid to any printer for any ad\-ertisement required by law to be printed. Bringing up a prisoner upon habeas corpus, to testify or answer to any court or before any judge, one dollar, and all actual and neces- sary expenses for such services, and ten cents ])er mile by the route most usually traveled, and all expenses for any guard actually em- ployed and necessary. For summoning and qualifying appraisers, and for performing all duties in laying off homesteads and personal property exemptions, or either, two dollars, to be included in the bill of costs. For levying an attachment, one dollar. For attendance to qualify jurors to lay off dower, or commission- ers to lay off year's allowance, one dollar ; and for attendance, to qualify commissioners for any other purpose, seventy-five cents. Executing a deed for land or any interest in land sold under exe- cution, one dollar, to be paid by the piirchaser. Service of writ of ejectment, one dollar. For every execution, either in civil or criminal cases, fifty cents. Whenever any precept or process shall be directed to the sheriff of any adjoining county, to be served out of his county, such sheriff shall have for such service, not only the fees allowed by law, but a further compensation of five cents for every mile of travel going to and returning from service of such precept or process: Pro- vided, that whenever any execution of five hundred dollars or up- wards shall be directed to the sheriff of an adjoining county, under this chapter, such sheriff shall not be allowed mileage, but only the commissions to which he shall be entitled. The sheriff of Hyde count}' shall be allowed the sum of two dul lars for serving all warrants or capiases or other criminal processes on the waters of Pamlico sound or on the waters of any bay in Hyde county. A^^ienever such sheriff is compelled to go by boat or vessel a distance of more than two miles from any shore or landing in Hyde county to serve any civil process upon the waters of Pam- 2777 SALAEIES AND FEES— T\ County Officers. Ch. 66 lico sound or any bay in Hyde county, such sheriif, in addition to the fee prescribed by law for serving such process, may add the expense of hiring such boat or vessel, which cost or expense shall be taxed by the clerk of the superior court of the county from which such process issued in the bill of costs in the action in which such process issued. Sheriffs and constables of Hyde and Carteret counties shall receive three dollars for every process executed on board of any boat or vessel lyiug in the waters between Ocracoke island, Hyde county, and Portsmouth in Carteret county. Code, ss. 931, 2135, 2089, 2090, 3752; 1885, c. 262; 1891, cc. 112, 143; 1903, c. 541; 1901, c. 64; R. C, c. 102, s. 21; R. C, c. 31. s. 56; 1822, c. 1132. Note. For serving process from corpjoration coiivmission, see s. 1071. For serving notice of garnishment for taxes, twenty-five cents, see s. 2880. For sales for taxes, see s. 2883. For making memorandum of redemption of land sold for taxes, see s. 2913. For additional salary in Wayne county, see 1905, c. 374. For salary in Guilford county, see 1905, c. 275. For fees in Franklin county, see 1905, c. 345. For fees for collecting taxes in Rowan county, see 1905, c. 376. For compensation in Forsyth county, see 1905, c. 436. For payment to sheriff for holding courts in Halifax county, see 1905. e. 386. 2778. County treasurer. The county treasurer shall receive as compensation in full for all services required of him such a sum, not exceeding one-half of one per cent, on moneys received and not ex- ceeding two and a half per cent, on moneys disbursed by him as the board of commissioners of the county may allow. As treasurer of the county school fund he shall receive such sum as the board of education may allow him, not exceeding two per cent, on disburse- ments: Provided, that in counties where his compensation can not exceed the sum of two hundred and fifty dollars, the said treasurer may be allowed a sum not exceeding two and a half per cent, on his receipts and his disbursements: Provided further, the county treas- urer of Buncombe county shall receive as a compensation in full for all services required of him seventeen hundred and fiftv dollars per annum, paid pro rata from the county fimd and the school fund ; the county treasurer of Gaston county shall receive as a compensation in full for all services required of him a yearly sal- ary not exceeding twelve hundred dollars, to be fixed by the com- missioners of said county; the coimty treasurer of Mecklenburg county shall receive as a compensation in full for all services required of him a yearly salary not exceeding twenty-seven hun- dred and fifty dollars, to be fixed by the commissioners of said county. Said salaries to be in lieu of all commissions allowed by law. The treasurer of Martin coimty shall receive as his commission two and one-half per cent, on all money received by him as general county fund and two and one-half per cent, on all money disbursed Rev. Vol. 1—49 833 2778 SALARIES AND FEES— T. County Officers. Ch. 66 by liim as general county fund. Commissions on school fund shall remain as already provided for by law. Code, s. 770; 1899, c. 233: 1901, ce. 285, 506; 1903, e. 512; 1905, c. 352. Note. For salary in Guilford county, see 1905, o. 275. For fees in Forsyth, see 1905, c. 436. 2779. Examining committee of treasurer's books. The board of commissioners shall allow to the committee who examine the books and moneys of the treasurer the same pay per diem that is received by a member of the board, not to exceed pay for one day's service for each examination. Code, s. 774; 1879, c. 33. 2780. Standard-I. "Month" and "year." The word "month" shall be construed to mean a calendar month, unless otherwise exjiressed ; and the word "year," a calendar year, unless otherwise expressed; and the word "year" alone shall be equivalent to the expression "year of our Lord." 4. Leap-yeai;,, how counted. In every leap-year, the increasing day and the day before, in all legal proceedings, shall be counted as one day. R. C, c. 31; 21 Hen. III. 5. "Oath" and "swoen." The word "oath" shall be construed to include "affirmation," in all cases where by law an affirmation may be substituted for an oath, and in like cases the word " sworn" shall be construed to in- clude the word "iiffirm." 6. "Peeson" and "peopeety." The word "person" shall extend and be applied to bodies politic and corporate, as well as to individuals, unless the context clearly shows to the contrary. The words "real property" shall be coexten- sive with lands, tenements and hereditaments. The words "personal property" shall include moneys, goods, chattels, choses in action and evidences of debt, including all things capable of ownership, not descendible to the heirs at law. The word "property" shall include all property, both real and personal. 7. "Preceding" and "following." The words "preceding" and "following," when used by way of reference to any section of this Revisal shall be construed to mean the section next preceding or next following that in which such reference is made ; unless when some other section is expressly des- ignated in such refei'ence. 8. "Seal." In all cases in which the seal of any court or public office shall be required by law to be affixed to any paper issuing from such court or office, the word "seal" shall be construed to include an im- pression of such official seal, made upon the paper alone, as well as an impression made by means of a wafer or of wax affixed thereto. 9. "Will." The term "will" shall be construed to include codicils as well as wills. 851 2831 STATUTES, CONSTEUCTIOX OF. Ch. 0^ 10. "Wkitten" and "in writing." The words "wi-itten" and "in writing," may be construed to include printing, engTaving, lithographing, and any other mode of representing words and letters: Provided, that in all cases where a Avritten signature is Z'eqnired by laM', the same shall be in a proper handwTiting, or in a proper mark. 11. "State" and "United States." The word "state," when applied to the different parts of the United States, shall be construed to extend to and include the Dis- trict of Columbia and the several territories, so-called ; and the words "United States" .shall be construed to include the said district and territories and all dependencies. 12. "Impeisonment foe one month/' how consteued. The words "imprisonment for one month," wherever used in any of the statutes, shall be construed to mean "imprisonment for thirty days." Code, s. 3765. 2832. Where amended, how construed. Where a part of a stat- ute is amended it is not to be considered as having been repealed and re-enacted in the amended form; but the portions which are not altered are to be considered as having been the law since their enactment, and the new provisions as having been enacted at the time of the amendment. Code, s. 3766; 1868-9, c. 270, s. 22; 1870-1, e. 111. CHAPTEE 69. STRAYS. (Sections 2833—2835.) 2833. Owner notified; if unknown, register of deeds notified. Any person who shall take ui> any stray liorsc, mare, cult, mule, ass or jennet, neat cattle, hog or sheej), shall within ten days after taking up such stray inform the owner, if to liim known, if not, ho shall inform the register of deeds of the supposed age, marks, brands and color of the stray, and that the same was taken up at his plantation or place of abode ; whereupon the register of deeds sliall record such infdrnuition in a book kept by him for that pur]iose, for M'liicli serv- :i8;5;J STEAYS. Ch. 69 ice the taker-up of said stray or strays shall pay a fee of twenty-five cents, excejDt for hogs and sheep, for which the fee shall be ten cents. The register of deeds shall at once publish a notice of the taking up of such stray, by posting the same at the courthouse door, and if the cost does not exceed two dollars, then in some newspaper published in the county. Such notices shall be published for thirty days, and shall contain a full and complete description of said stray and of all marks or brands on the same, and when and where the same was taken up. The fees for ijublishing such notices shall be paid by the party taking up the stray. Code, s. 3768; 1874-.5, c. 258, s. 2. 2834. Owner may reclaim. When any stray has been taken up, the owner may at any time before a sale reclaim such stray by prov- ing his ownership and paying to the party capturing the same the actual costs paid the register of deeds as provided in the preceding section, together with the actual costs of keeping such stray, as fixed by the county commissioners. The board of commissioners of the several counties shall fix a scale of costs for keeping^ strays. 2835. When and how strays sold. If the owner of any stray shall fail to claim the same within thirty days after the publication of the notice required by law, the person taking up the stray shall cause the stray to be ajjpraised by the nearest magistrate and two freeholders, none of whom shall receive any fees for such services. Such appraisement shall give a full and accurate description of such stray and shall by the magistrate be returned to the register of deeds, and by him recorded in his book for strays ; and the register of deeds shall issue an order to the sheriff directing him to sell such stray and the sheriff shall sell such stray at public auction after ten days public advertisement as for sales of personal property imder execu- tion ; and out of the proceeds he shall pay the cost of piiblishing the notices as to strays, the costs of keeping and the costs of sale, and shall pay the surplus to the county treasurer for the benefit of the public school fund of the coimty. The county board of education shall, at any time within twelve months after such funds have been paid to the county treasurer, upon due proof of ownership, issue an order commanding the county treasurer to pay to the owner of the stra}' the net amount paid the county treasurer as the proceeds of the sale of the stray. 853 2836 SUISFDAY AND HOLIDAYS. Cb. 7(> CHAPTER 70. SUNDAY AND HOLIDAYS. (Sections 283C— 2839.) 2836. Work in ordinary calling on Sunday forbidden. On the Lord's day, commoiil}' called Sunday, no tradesman, artificer, planter, laborer, or otber person, sball, upon land or water, do or exercise any labor, business or work, of bis ordinary calling, works of neces- sity and charity alone excepted, nor employ himself in bunting, fish- ing or fowling, nor use any game, sport or play, upon pain that every jjerson so offending, being of the age of fourteen years and upwards, shall forfeit and pay one dollar. Code, s. 3782; R. C, c. 115; 1741, c. 30, s. 2. 2837. What process executed on Sunday, it shall not be lawful for any sheriff, constable, or otber officer to execute any summons, capias, or otber process on Sunday, unless the same be issiied'for treason, felony or misdemeanor. Code, s. 928; R. C, c. 31, s. 54; 1777, c. 118, s. G. 2838. Dates of public holidays. The first day of January, the nineteenth day of January, the twenty-second day of February', the tenth day of May, the twentieth day of May, the fourth day of July, the first Monday in September, the day appointed by the governor as a thanksgiving day, and the twenty-fifth day of December of each and every year, are declared to be public holidays; and whenever any siK'b holiday sball fall upon Sunday, the Monday following shall be a public holida}'. Code, s. 3784; 1891, c. 58; 1899, e. 410; 1901, c. 25; 1881, c. 294. 2839. Acts to be done on Sunday or holidays. Where the day or the last day for doing an act required or permitted by law to be done falls on Sunday or on a holiday the act may be done on the next succeeding secular or business day. Code, ss. 3784, 3785, 3780; 1899, c. 733, s. 194. 2840 SURETY. Ch. 71 CHAPTEE 71. SURETY. (Sections 2840— 2848.) 2840. Suretyship shown, what judgment and execution to con- tain. In the trial of actions upon contracts, either of the defendants may show in evidence that he is snrety, and if it be satisfactorily shown, the jury in their verdict, or the justice of the peace in his judgment, shall distinguish the principal and surety, w-hieh shall be indorsed on the execution by the clerk, or justice of the peace issuing it. Code, s. 2100; R. C, c. 31, s. 124; 1826, c. 31, s. 1. 2841. Property of principal sold before that of surety. Wben an execution, indorsed as aforesaid, shall come to the hands of any officer for collection, he shall levy on all the property of the princi- pal, or so much thereof as shall be necessary to satisfy the execution, and for want of sufficient property of the principal, also on the prop- erty of the surety, and make sale of all the property of the princi- pal levied on before that of the surety. Code, s. 2101; R. C, c. 31, s. 125; 1826, e. 31, s. 2. 2842. Summary remedy for and against principal. Any per- son, who may have paid money for and on account of those for whom he became surety, upon producing to the superior court, or any jus- tice of the peace having jurisdiction of the same, a receipt, and show- ing that an execution has issued, and he has satisfied the same, and making it appear by sufficient testimony, that he has laid out and expended any sum of money, as the surety of such person, may move the court or justice of the peace, as the case may be, for judg- ment against his principal, for the amount which he has actually paid; a citation having previously issued against the principal to show cause why execution should not be awarded; and should not the principal show sufficient cause, the court or justice shall award execution against the estate of the principal. Code, s. 2093; R. C, c. 110, s. 1; 1797, c. 487, s. 1. 2843. Surety paying debt of deceased principal, subrogated to creditors' rights. Whenever a surety, or his representative, shall pay the debt of his deceased principal, the claim thus accruing shall 28i3 SURETY. Cli. 71 have such priority in the administration of the assets of the princi- pal as had the debt before its payment. Code, s. 2090; R. C, c. 110, s. 4; 1829. c. 23. 2844. Co-surety liable for contribution. Where there are two or more sureties for the performance of a contract, and one or more of them may have been compelled to perform and satisfy the same, or any part thereof, and the principal shall be insolvent, or out of the state, such surety may have and maintain an action against every other surety, for a just and ratable proportion of the sum which may have been paid as aforesaid, whether of principal, interest or cost. Code, s. 2094; E. C, e. 110, s. 2; 1807, c. 722. 2845. May dissent from stay of execution; not then liable to surety on stay. Whenever any judgment shall be obtained before a justice, against a principal and his surety, and the principal debtor shall desire to stay the execution thereon, but the surety is unwilling that such stay shall be had, the surety may cause his dissent thereto to be entered by the justice, which shall absolve him from all lia- bility to the surety who may stay the same. And the constable or other officer, who may have the collection of the debt, shall make the money out of the propei-ty of the principal debtor, and that of the surety for the stay of execution, if he can, before he shall sell the property of the surety before judgment. Code, s. 2095; E. C, c. 110, s. 3; 1829, c. 6, ss. 1, 2. 2846. May notify creditor to collect; penalty for delay, in all cases where any surety or indorser on any note, bill, bond, or other written obligation, shall consider himself in danger of loss in conse- quence of his contingent liability, either from the insolvency or mis- conduct of the principal, in said note, bill, bond, or other written obligation, or from the negligence of the payee or holder of any such instrument, it shall be lawfvil for such surety or indorser, at any time after such note, bill, bond, or other written obligation shall have become due and payable, to cause written notice to be given to the payee or holder of any such paper or obligation, requiring him to bring suit on said obligation, and to use all reasonable diligence to save harmless such surety or indorser: Provided, nothing herein contained shall apply to official bonds, or bonds given by any person acting in a fiduciary capacity. Code, .«. 2097; 18G8-9, c. 232, s. 1. 2847. Negligence of creditor discharges surety, when; proviso. Should the payee or holder of any such note, bond, bill, or other written obligation, refuse or fail, witliin tiiirty days from the serv- 856 2847 SURETY. Ch. 71 ice of said notice, to bring suit in the appropriate court in an effort to save harmless such surety or indorser, such refusal or fail- ure to sue shall operate as a discharge of such surety or indorser, from all liability whatever, on any such note, bond, bill, or other written obligation: Provided, that this notice shall not have the effect to discharge from liability any co-surety who does not join in STich notice, or who has not given a separate notice : Provided fur- ther, that this and the preceding section shall not apply to holders of such note, bond, bill, or obligation, who hold the same as collateral security or in trust. Code, s. 2098; 1868-9, c. 232, s. 2. 2848. How notice served. Such notice shall be served by the sheriff' or his deputy, who shall return it to the l^arty for whose benefit the notice was issued, which shall be evidence of the fact in all courts. Code. s. 2099: 1868-9, c. 232, s. 3. Note. For remedy of surety on executor's bond, see Administration. For evidence against principal aa against surety, sees. 285. CHAPTER 7:^. TAXES, COLLECTION OF. I. General provisions. 2849- -2858 II. Life tenants and coten; nts. 2859- -2860 III. Infants and lunatics, 2861- -2862 IV. Lien of taxes, 2863- -2866 V. Sheriff's powers and duties, 2867- -2883 VI. Sale of personalty, 2884- -2880 VII. Sale of realty. 2887- -2898 nu. Certificate of sale, 2899- -2902 IX. Deeds under tax sale, 2903- -2909 X. Purchasers at tax sale. 2910- -2912 XI. Redemption, 2913- -2914 I. Genee.vl Provisions. 2849. Chapter to remain in force unless expressly repealed or amended by, or clearly in conflict with, later acts. The provis- ions of this chapter slinll continue in force whether or not brought forward in suKsequeut acts to raise revenue or acts to provide for the assessment and collection of taxes, commonly called "revenue acts" 2849 TAXES, COLLECTIOX OF—/. Gen. Fronsmis. Ob. 7l' and "machinery acts," unless and nntil expressly repealed or amended by, or clearly inconsistent witb, subsequent legislation; it being the intention of the general assembly that this chapter shall be a standing provision for the government of the matters embraced therein, and not to be repealed by implication because omitted in whole or in part from subsequent legislation on the subject of taxa- tion. 2850. Application and construction of this chapter. The pro visions of this chapter shall apply to all taxes as defined in this chapter, Avhether state, county, town, city, or other municipal sub- division; and shall be liberally construed in favor of, and in f\ir therance of, the collection of such taxes. 2851. Definitions. Unless siich construction or definition would be manifestly inconsistent with or repugnant to the context, the words and phrases folloAving, whenever used in this chapter, shall be construed to include in their meaning the definitions set opposite the same in this section: 1. "Tax," "taxes." Any taxes, special assessments or costs, inter- est or penalty imposed upon projierty or polls. 2. "He." Male, female, company, corporation, firm, society, singular or plural number. 3. "Real property." Real estate, land, tract, lot — not only the land itself, whether laid out in town or city lots or otherwise with all things therein, but also all buildings, structures and improve- ments and other permanent fixt^ires of whatever kind thereon, and all rights and privileges belonging or in anywise appertaining thereto, and all estates therein. 4. "Sheriff." Every person who is by law authorized to collect taxes, either state or municipal. 190,3, c. 251, s. 86. 2852. When taxes are due. Unless otherwise expressly provided by law, all taxes shall be due on the first [Monday in September of each year and collection thereof may be enforced on and after that day. 1903, c. 2.51, s. 79. 2853. Payable in national currency. Taxes are payable in the existing national currency, and sludl be collected as ])ri'scril)L'd by this chapter, except where otherwise provided by law. Code, s. .3074; 1872-3, c. 144, s. 1; 1903, c. 247, s. 1. 2854. No taxes to be released; penalty. Xo board of county commissioners, or council, or board of aldermen or conunissioners of 2854 TAXES, COLLECTION OF—/. Gen. Pioi-isioiis. Ch. 72 any city or town shall have power to release, discharge, remit or commute any portion of the taxes assessed and levied against any person or property within their respective jurisdictions for any rea- son whatever; and any tax so discharged, released, remitted or com- muted, may be recovered by civil action from the members of any such board at the suit of any citizen of the county, city or town, as the case may be, and when collected shall be paid to the proper treasurer. Nothing in this section shall be construed to prevent the proper authorities from refunding taxes as provided in this chapter ; nor to interfere with the powers of any officers or boards sitting as a board of equalization of taxes; nor construed to exempt any taxpayer or property from liability for taxes released, discharged, remitted or commuted in violation of this section. 1901, c. 558, s. 31. 2855. Injunction and replevin not allowed; remedy of taxpayer. Unless a tax or assessment, or some part thereof, be illegal or invalid, or be levied or assessed for an illegal or imauthorized pur- pose, no injunction shall be granted by any court or judge to restrain the collection thereof in whole or in part, nor to restrain the sale of any property for the nonpayment thereof; nor shall any court issue any order in claim and delivery proceedings or otherwise for the taking of any personalty levied on by the sheriff to enforce payment of such tax or assessment against the owner thereof. When- ever any person shall claim to have a valid defense to the enforce- ment of a tax or assessment charged or assessed upon his property or poll, such person shall pay such tax or assessment to the sheriff ; but if, at the time of such payment, he shall notify the sheriif in writing that he pays the same lender protest, such payment shall be without ijrejudice to any defenses or rights he may have in the premises, and he may, at any time within thirty days after such payment, demand the same in writing from the treasurer of the state or of the county, city or town, for the benefit or under the authority or by request of which the same was levied ; and if the same shall not be refunded within ninety days thereafter, may sue such county, city or town for the amount so demanded, including in his action against the county both state and county tax; and if upon the trial it shall be determined that such tax or any part thereof was levied or assessed for an illegal or unauthorized purpose, or was for any reason invalid or excessive, judgment shall be rendered therefor, with interest, and the same shall be collected as in other ca.ses. The amount of state taxes for which judgment shall be ren- dered in such action shall be refunded by the state treasurer. moi, c. 5.'58, s. 30. Note. See also s. 821. 2S5G TAXES, COLLECTIOX OF— 7. Gen. rrovlsium. Ch. 72 2856. How tax list endorsed; equivalent to judgment and exe- cution. Evcrv tax list before being jilaeed in the liaiids of tlie sheriiT shall be endorsed by the authorities levying the taxes, with an order for their collection. The order shall be in the following or similar form : State of Noitli Carolina, County. OHice of Board of Commissioners of County (or town). To the Sheriff (or Constable) of County (or town) — Greeting: By order of the board, you are hereby commanded to collect the taxes herein mentioned, according to the provisions and requirements of the existing law. In witness whereof, 1 have hereunto set my hand and official seal, this the .... day of , 19 [L. S.] , Clerk Board of Commissioners of County. The tax list, when thus endorsed, shall have the force and effect! of a duly docketed judgment and of an execution against the real and personal projjerty of the persons charged with taxes on such list. Code, s. 3681; 1903, c. 251, s. 74; 1872-3, c. 115, s. 21; 1876", c. 155. s. 22. 2857. Taxes to be paid in cases of judicial sales and sales under powers. In all civil actions and special proceedings wherein the sale of any real estate shall be ordered, the judgment shall pro- vide for the payment of all taxes then assessed upon the property and remaining unpaid, and for the payment of such sums as may be required to redeem the property, if it has been sold for taxes and such redemption can be had; all of which payments shall be ad- judged to be made out of the proceeds of sale. The judgment shall adjust the disbursements for such taxes and expenses of redemption from tax sales between the parties to the action or proceeding in accordance with their respective rights. And whenever any real estate shall be sold by any person under any power of sale conferred upon him by any deed, will, power of attorney, mortgage, deed of trust, or assignment for the benefit of creditors, the person making such sale must pay out of the proceeds of sale all taxes then assessed upon such real estate and such sums as shall be necessary to redeem the land, if it has been .sold for taxes and such redemption is practi- cable. 1901, c. 558, s. 47. 2858. Lienor may pay taxes and retain lien of. Any person having a lien or incumbriincc of any kind u])on real estate may pay the taxes due by the owner tiioreof in so far as the same are a lien upon such real estate, and the amount of taxes so i)aid .shall, from the time of i)aymcnt, operate as a lien upon such real estate in prefer- ence to all other liens, which lien may be enforced by action in the sn)U'rior cdurt in term, 'i'hc niniicy so paid m;iy also lie recovered 2S5S TAXES, COLLECTIOX OF— 7. Gen. Provisions. Cb. 72 by action for moneys paid to his use against the person legally lia- ble for the payment of such taxes. Code, 3. 3700; 1901, e. 558, s. 46; 1879. c. 71, s. 55. II. Life Tenants and Cotenants. 2859. Life tenant failing to pay taxes forfeits estate and liable for damages. Every person shall be liable for the taxes assessed or charged upon the property or estate, real or personal, of which he is tenant for life. If any tenant for life of real estate shall suffer the same to be sold for taxes by reason of his neglect or refusal to pay the taxes thereon, and shall fail to redeem the same within one year after such sale, he shall thereby forfeit his life estate to the remainderman or reversioner. The remainderman or reversioner may redeem such lands, in the same manner that is provided for the redemption of other lands. Moreover, such remainderman or rever- sioner shall have the right to recover of such tenant for life all dam- ages sustained by reason of such neglect or refusal on the part of such tenant for life. If any tenant for life of personal property suffer the same to be sold for taxes by reason of any default of his, he shall be liable in damages to the remainderman or reversioner. Code, ss. 3698, 3699; 1901, c. 558, s. 45; 1879, c. 71, ss. 53, 54. 2860. Cotenant or joint owner may pay total tax or his share; may redeem; remedies for expenditures in excess of his share. Any one of several tenants in common, or joint tenants or copart- ners shall have the right to pay his share of the taxes assessed or due upon the real estate held jointly or in common, or, if such estate has been sold for taxes, he may redeem his share by paying his proportionate part of the amount required for redeeming the whole. Where he has paid his share of the taxes or amoiint required for redemption and the land has been or shall be divided by actual partition the share set apart to him in severalty shall be free from the lien of, and shall not be liable to be subjected in any manner to, the payment of the residue of taxes assessed upon s\ich property; but such residue of taxes and the costs and penalties incident thereto shall be a lien upon the residue of such real estate, which residue shall be subjected to the satisfaction thereof; and when he has paid his share of the taxes, or amount necessary to redeem, and the real estate is sold under judicial proceedings for partition, his share of the proceeds shall not be diminished by disbursements for the residue of such taxes or for redeeming the property, and the costs and penalties incident thereto. Any such part owner in real estate shall have the right to pay tlie whole of the. taxes assessed thereon and all costs and penalties incident to such taxes, and to redeem such 801 2SG0 TAXES, COLLECTION OF—//. Life Tenants. Cli. 72 real estate as a whole when it has been sold for taxes, and all sums by him so paid in excess of his share of such taxes, costs and penal- ties and amounts required for redemption, shall constitute a lien upon the shares of his cotenants or associates, payment whereof, with interest, he may enforce in proceedings for partition, actual or by sale, or in any other appropriate judicial proceeding. When one tenant in common, joint tenant or copartner shall have paid his pro- portionate part of tlie taxes, as allowed by this section, before a sale for taxes, the sheriff shall except his undivided interest from the sale and in the certificate of sale and deed for the property. 1901, c. 558, ss. 13, 14. 47. III. Infants' and Lunatics. 2861. Minors and persons non compos, lands of, not to be sold, personalty may be. The lands of a minor, lunatic or other person non compos mentis, shall in no case be liable to be sold for taxes, but the personal property of such persons may be levied' upon and sold for all taxes due upon the estates of siich persons ; and their real estate shall be and remain subject to a lien for all such taxes, with interest thereon at six per centum per annum, from the time such taxes fall due until paid. Code, s. 3691. 2862. Guardians and other fiduciaries must pay taxes. It shall be the duty of every guardian, executor, administrator with the will annexed, agent, trustee, receiver or other fiduciary in whose care or control any property or estate, real or personal, may be, to pay the taxes thereon out of the trust funds in his hands, if any there be; and if he fail so to do he shall become personally liable for such taxes and such liability may be enforced by an action against him in the name of the sheriff. If he permit such property to be sold by reason of his negligence to pay the taxes when lie has funds in hand, he shall be liable to his ward, principal, or cestui que trust for all actual damages incident to such neglect. This section shall not have the effect of relieving the estates held in trust or under tlic control of fiduciaries from the lien of such taxes. Code, ss. 3698, 1595; 1879, c. 71, s. 53; R. C, c. 54, s. 27; 1868-9, c. 201, s. 32; 1762, c. 69, s. 14. IV. Lien of Taxes. 2863. Personal property. Taxes shall not be a lien upon per- sonal property, exce]it where otherwise provided by law, but from a levy thereon. Code, s. 3682. 862 2864 TAXES, COLLECTION OF— ZF. Lien. Ch. 72 2864. Real estate. The lien of the state, county and municipal taxes levied for any and all purposes in each year shall attach to all real estate of the taxpayer situated within the county or other munici- pality by which the tax list is placed in the sheriff's hands, which lien shall attach on the first day of June annually, and shall con- tinue until such taxes, with any penalty and costs which shall accrue thereon, shall be paid. Code, s. 3682; 1879, c. 71, s. 26. 2865. Railroad property. The taxes upon the property of any and all railroads, road beds, rights of way, depots and side-tracks, now constructed or hereafter to be constructed, are hereby made a perpetual lien thereon, commencing from the first day of June in each current year, and shall have priority over all claims or demands whatsoever of all persons or bodies corporate, except the United States and this state ; and the above described property, or any part thereof, may be taken and held for payment of all taxes assessed against such railroad company in the several counties in this state. 1903, c. 251, s. 88. 2866. Tax lien foreclosed by action; parties to. A lien upon real estate for taxes or assessments due thereon may be enforced by an action in the nature of an action to foreclose a mortgage, in which action the court shall order a sale of such real estate, or so much thereof as shall be necessary for that purjDOse, for tlie satis- faction of the amount adjudged to be due on siich lien, together with interest, penalties and costs allowed by law, and the costs of such action. When such lien is in favor of the state or county, or both, such action shall be prosecuted by and in the name of the county; when the lien is in favor of any other municipal corpora- tion the action shall be prosecuted by and in the name of such cor- poration. When such lien is in favor of any private individual or private corporation holding a certificate of tax sale or deed under a tax sale, whether as original purchaser at a tax sale or as assignee of the county or other municipal corporation or of any other holder thereof, such action shall be prosecuted in the name of the I'eal party in interest. 1901, c. 558, ss. 42, 43. V. Siieiuff's Powers and Duties. 2867. Sheriff's duties. Whenever any taxes shall be due and \mpaid, the sherifi^, who by law is required to collect the same, shall immediately proceed to collect them as prescribed by this chapter. Code, s. 3686; 1872-3, e. 115, s. 28. 2S6S TAXES, COLLECTIOX OF— V. Shcrijf. Ch. 72 2868. Sureties of sheriff may collect, when; their liabilities. If any sheriff shall die during the time appointed for collecting taxes, his sureties on his tax bond may collect them, and for that pur- pose shall have all power and means for collecting the same from the deputies and taxj^ayers as the sheriff" would have had, and shall be subject to all the liabilities of the sheriff' for collecting and set- tling the taxes ; and the state and municipal authorities shall have the same remedies against such siareties as might have been had against the sheriff' and his bondsmen, if he had lived. 1903, c. 251, s. 102. 2869. Time limited for collection of taxes. The sheriff and, iu case of his death, the sureties on his ta.x bond, shall have one yeai* and no longer from the day prescribed for his settlement and pay- ment of the state taxes within which to finish the collection of all taxes ; but the extension of time for collection shall not extend the time of his settlement of the taxes. 1903, c. 251, s. 103. 2870. Attendance in townships to collect taxes; notice. Except where otherwise jDrovided by law the sheriff or his deputy shall attend at the courthouse or his office iu the county town during the months of September and November for the purpose of receiv- ing taxes. He shall also in like manner attend at least one day during .the month of October at some one or more places in each township, of which fifteen days' notice shall be given by advertise- ment at three or more public places and in a newspaper, if one be published in the county; but nothing in this section shall be con- strued to prevent the sheriff' from levying upon and selling personal property at any time after the tax lists are placed in his hands, if he shall believe the taxpayer is preparing to leave the county or state. 1903, c. 251, s. 80. 2871. Process to another county to enforce payment of taxes. If any person liable for taxes has no property in tlic county in which such taxes are due, but has property in any other county, the sheriff may make and certify imder his hand an abstract of the taxes due by such person, as shown by the tax lists in his hands, and forward tfie same to the sheriff of any county in which property of such taxpayer may be found, with directions to collect such taxes. Such abstract .shall have the force and effect of a tax list in any county to -which it is sent, and the sheriff to whom it is sent shall collect the taxes in the same manner as he collects taxes appearing on the regular tax list of his county, and shall pay over to the sheriff from whom he receives such abstract the 864 2871 TAXES, COLLECTIOX OF— F. Sheriff. Ch. 72 amount collected, less his lawful commissions. He shall make re- turn of his proceedings under such abstract within thirty days after its receipt. Such abstract or a copy or duplicate thereof may be sent for collection to the same or some other county until the amoimt due shall be collected. Ckide, s. 3692; 1872-3, c. 115, s. 28. 2872. Inquiry as to taxpayer removed; oath; inspection of insolvent list, it shall be the duty of every sheriff or every tax col- lecting officer of any county, city or town, whenever he is informed that a taxpayer has removed from his county, city or town without paying the taxes listed for that year, to make diligent inquiry to what county, city or town the said taxpayer has removed, and in the settlement of the sheriff or other tax-collecting officer for any county, city or town he shall state, under oath, that he has used due diligence and made faithful inquiry for the location of all taxpayers who have removed from his county, city or town owing tax for said fiscal year, or the same shall be charged to him and not be allowed in his insolvent list ; and the board of county commissioners, or other officers with whom said sheriff or other tax-collecting officer is re- quired by law to make his settlement, shall carefully inspect the insolvent list filed for said fiscal year, and if said sheriff or other tax-collecting officer has not complied with the law to enforce col- lection of taxes at all times he shall be charged with the same. 1905, e. 355. 2873. Report to register of deeds; register certifies tax due. It shall be the duty of the sheriff or other tax-collecting officer of any county, city or town, when he is informed that any taxpayer has re- moved from his county, city or town without paying his taxes listed for that year and has no property in the county, city or town, or no property in any county known to the said collecting officer, to make a report of the same, with a return of the tax receipt, to the register of deeds of his county, who shall make out a certificate, under his hand and seal, that said taxes were listed for that year, that the same are due and reported unpaid by the collecting officer for said county, city or town. .1905, c. 355, s. 2. 2874. Certificate sent to where taxpayer has removed. The sheriff' or other collecting officer of any ccnnity, city or to\vn shall send the receipt, with said certificate, to the collecting officer of the county, city or tovm to which said taxpayer has removed, and the same shall be a tax list in his hands for the collection of said taxes. 1905, c. 355, s. 3. Rev. Vol. T— 51 865 2873 TAXES, COLLECTIOX OF— 1'. Sheriff. Ch. 72 2875. Duty upon receiving certificate; compensation. The tax collcc'tDr to whdiu the said tax rocc'i])t has hecn sent sliall ]>roceed to the collection of said taxes according to the rules and regulations pro- vided for the collection of taxes in his own county, city or town, and shall report his proceedings to the ofHccr from whom he received the said receipt within sixty days thereof. If such taxpayer is insolvent and the said collecting officer can not collect the tax as provided by law in his county, city or tovni, he shall return said tax receipt, and shall state under his oath, that he has used due diligence in making said col- lection by levy, garnishment or otherwise, that said tax])ayer is insol- vent and same can not be collected ; otherwise he shall be liable on his official bond for said tax, to be collected in a suit in any court in this state in the corporate name of the county, city or town to which said taxes are due. The collecting officer shall be allowed a compen- sation of ten per centum for making collection of said taxes, and the register of deeds shall be allowed ten cents for making the above cer- tificate, to be paid by the county, city or town to which the said taxes are due. 1005, e. 355, ss. 4-6. 2876. License taxes, levy and sale to collect. Upon failure of any person to pay any of the license taxes imposed by law, when due, the sherifl:" shall have the same powers to levy upon and sell any personal or real estate owned by such person, as is provided in other cases for the collection of taxes. IflO.S. c. 247, s. 87. 2877. To prosecute delinquents for license taxes, it shall be the duty of the sherifl^ of each county to make diligent incjuiry as to whether or not all license taxes provided for by law shall have been paid and, upon the failure of any person to pay on demand any license tax for which he is liable to swear out a warrant before some justice of the peace in such county, and the jirocedure thereon shall be as in other criminal actions: Provided, the pa,^Tnent of the tax and all costs accrued at any stage of the action shall be a bar to further prosecution. ino:!, c. 247, s. 87. 2878. Not liable for prosecutions in good faith. Xo action for damages shall be prosecuted or maintained by any person against any sherifl^ or his deputy who in good faith has arrested or who has arrested and pro.secuted, or who may hereafter arrest or who may hereafter arrest and prosecute any person who may have refused or may fail or refuse to jiay to such .sherifl^ or his deimty any tax or taxes im])osed by any act of the general assembly, wild her such act be valid or invalid. 1905, p. 180. 81 ji; 2879 TAXES, COLLECTION OF— T'. Sheriff. Cli. 72 2879. Property in hands of receiver. Whenever taxes are duly assessed against any corporation having chartered rights, or doing business in this state, or having proj^erty in this state, or against any j)erson resident in this state or doing business, or having property in this state, and the tax list is in the hands of the sheriff, it shall be competent for such sheriff whenever such taxes, whether listed or unlisted, are due and unpaid," to levy upon and sell such part of the property, real and personal, belonging to such person or corpora- tion as may be necessary to pay such taxes, listed or unlisted, whether the property of b\\c\\ corporation or person be in the hands of a re- ceiver duly appointed or not; and in such cases it shall not be neces- sary for such officer to apply to and obtain from the court appoint- ing such receiver, or having jurisdiction of the property or of the receiver, an order for the payment of such taxes, but the same may be collected as if the property was not in the hands of a receiver or in the custody of the law. The powers conferred by this section upon the sheriff shall not have the effect to relieve the receiver from liis duties and liabilities to pay taxes as provided elsewhere in this chapter. Code, ss. 600. 700; 1870, c. 2451, ss. 1-4. 2880. Garnishee and attachment proceedings. If any poll tax or other tax shall not be paid within sixty days after the same shall be demandable, it shall be the duty of the sheriff, if he can find no property of the person liable sufficient to satisfy the same, to attach any debt or other property incapable of manual delivery, due or belonging to the person liable, or that may become due before the expiration of the calendar year, and the person owing such debt or having such property in possession shall be liable for such tax. It shall be the duty of every person, on demand or request made, to give to the sheriff' a list giving the names of all persons employed hy him who are liable for tax. For the purpose of carrying into effect the provisions of this section, the following form shall be used as an attachment, viz: To A. B : Take notice, that this is to attach any debt that is now due or may become due to C. D., a delinquent in his poll (or property) tax for the year of nineteen hundred and . . . ., and you are hereby summoned to appear before E. F., an acting justice of the peace for county, and disclose any indebtedness which is or may be due said delinquent by you during the present calendar year, and to show cause why judgment should not be rendered against you for said delinquent tax and costs of tliis proceeding day of , 100. . , E. F., Justice of "the Peace. For serving notice the sheriff shall receive twenty-five cents, and if judgment is rendered, the justice shall receive twenty-five cents as costs. The justice shall hear and determine the matter as in other civil actions, and, if he find that the garnishee owes the delin- 2880 TAXES, COLLECTION OF— 1'. Sheriff. Ch. 72 quent any sum due or to become due during the calendar year, or has property or effects belonging to such delinquent, he shall give judgment against the garnishee for the taxes due hj the delinquent and for costs, or for so much of such taxes and costs as the facts will warrant. If the amount of the tax be beyond the jurisdiction of the court of a justice of the peace, the sheriff' may proceed by action and attachment in the superior coitrt. All actions and proceedings instituted under this section shall be in the name of the sheriff. In no case shall the garnishee be adjudged to pay a greater sum than his indebtedness to the taxpayer or the value of the property of such taxpayer in his hands or under his control. Code, s. 3675; 1872-3, c. 144, s. 2; 1881, c. IIG, ss. 2, 3; 1903, c. 251, s. 11. 2881. Corporation failing to pay taxes; garnishment; penalty. Whenever any cori^ciration doing business in this state shall be delinquent in the j)ayment of any taxes assessed or charged against it, the sheriff may notify any agent or officer of such corporation, or any person indebted thereto, of the amount of taxes due and un- paid by such corporation, and thereupon such agent, officer or debtor shall pay to such sheriff or tax collector the amount he has in hand for, or of his indebtedness to, such corporation, or so much thereof as will satisfy such taxes and costs. The amount so paid shall be a discharge pro tanto of such agent, or officer, or debtor from his lia- bility to such corjooration. Any such agent, officer or debtor who shall fail to pay over to the sheriff as required by this section shall be liable for such money in civil action to be brought by such sheriff in his name and official capacity; and such officer or agent of such corporation shall also be liable to criminal prosecution as is pro- vided in the chapter on Crimes. If any corporation be delinquent for six months in the payment of the taxes lawfully assessed and charged upon or against it or its property, its charter shall be for- feited and a receiver shall be appointed to wind up its affairs in an action to be prosecuted by the attornej'-general in the name of the state. 1901, c. 558, s. 29. Note. See Crimes. 2882. When sheriffs to settle with state treasurer. The sheriffs or tax collectors of the several counties shall settle with the state treasurer the amount of taxes due from their respective counties on or before the second Monday in January of each and every year: Provided, that the sheriff of Dare county shall have until the iirst day of April in which to settle state taxes, the sheriffs of Clierokee, Clay, Graham, Jackson, Macon, Jfitchell, liuthcrford and Swain counties shall have until the first day of April in which to settle state taxes, 2882 TAXES, COLLECTION OE— T. Sheriff. Ch. 72 and the sheriffs of Alexander, Buncombe, Caswell, Davie, Davidson, Eorsyth, Guilford, Madison, Person, Eockingham, Rowan, Stokes, Surry, Vance, Yadkin and Yancey counties shall have until the first day of May of each year. 1883, c. 150; 1887, c. 78; 1891, c. 62; 1895, ce. 29, 3.33; 1893, cc. 25, 30, 504; 1903, cc. 90, 129; 1905, cc. 11, 192, 241, 368, 627. 2883. Fees of sheriff and expenses of sale, etc. The sheriff shall be entitled to lifty cents for each actual levy and sale of per- sonalty and fifteen cents for each advertisement of such sale, but in no case shall such sums be collected where no levy or sale or adver- tisement is made. For advertising lands for sale for taxes, twenty cents for each parcel advertised. For making each certificate of the sale and purchase of real estate, and for each deed for real estate, fifty cents. For entering memorandum of redemption on sale book, twenty-five cents. The coimty commissioners shall allow him in settlement such other sums as he has actually expended which were necessary for the due execution of his duties under this chapter. 1903, c. 251, ss. 80, 97; 1901, c. 558, ss. 10, 11. VI. Sale of Peksonalty. 2884. To be first exhausted. The personal property of a tax- payer shall be levied upon and shall be sold for the satisfaction of his taxes before resorting to his real estate, if sufficient personalty subject to levy and sale can be found in the county of the sheriff having the tax list in hand. Upon the service of the notice required by this chapter, that his real estate is to be sold for taxes, it shall be incumbent upon the taxpayer to point out to the sheriff personalty out of which the taxes may be made or else such taxpayer shall for- feit his rights under this section. Code, s. 3688; 1901, c. 558, s. 1. 2885. As under execution. The seizure and sale of personal ]iro]icrty fur taxes shall be governed by the laws regiilating levy and sale under execution. Code, s. 3688; 1901, c. 558, s. 1. 2886. What subject to. All the personal property subject to tax- ation shall be liable to be seized and sold for taxes, and the personal property of any deceased person shall be liable in the hands of any executor or administrator for any tax due by any testator or intes- tate ; and all transfers of personal property by any taxpayer, made after bis taxes are due, by way of gift, or mortgage, or deed of trust, or of assignment for creditors, or bequest by will, or in any other way or for any other purpose than a bona fide sale for 2SSG TAXES, COLLECTION OF— TY. Sale FersonaUy. Ch. 72 value, in the ordinary course of dealing, shall be null and void as to such taxes and shall have no effect upon the rights, powers and du- ties of the sheriff to levy upon and sell such property for such taxes : Provided, such levy be made within sixty days after such transfer. Code, s. 3682. VII. Sale of Realty. 2887. When liable to. If personal property of any taxpayer, sufficient for the satisfaction of his taxes and subject to levy, is not to be found in the county of the sheriff having the tax list in hand for collection, it shall be the duty of such sheriff' to sell the real estate of such taxpayer, if delinquent in the payment of his taxes, under the directions set forth in this chapter. Code, ss. 3688, 3691; 1901, c. 588, s. 1. 2888. Time and place for. The sale of real estate for taxes shall, unless otherwise expressly provided by law, be made at the court- house door of the county, between the hours of ten o'clock in the forenoon and four o'clock in the afternoon of the first Monday in May of each year, but, if necessary, the sale may be continued from day to day until all the property advertised shall be disposed of. If, for any reason, the sale is not made on the day prescribed^ another day may be set by the county commissioners at a regular meeting, and the sale shall be had on such day after advertisement and notice as required by this chapter. Code, s. 459; 1901, c. 558, s. 3. 2889. Notice to be given delinquent. In addition to the adver- tisement required by the next succeeding section, the sheriff shall, at least twenty days before a sale of real estate for taxes, serve upon each delinquent taxp)ayer Avhosc real estate is advertised for sale, if such person can be found in the county, a copy of so much of such advertisement of sale as relates to him and his real estate. If such delinquent can not be found in the county, such notice shall be mailed to him, if his postofiice can be ascertained by the exercise of reasonable diligence, and personal service shall also be made upon his agent, if he have such agent in the county to the knowledge of the sheriff, or upon some person of suitable age and discretion in possession of or residing upon the land or some portion thereof. Code, ss. 457, 3091 ; 1901, c. 558, s. 3. 2890. Advertisement. Before any real estate shall be sold for taxes the sheriff shall give public notice of the time, place and cause of such sale by advertisement at the courthouse door and in some newspaper pulilished in the county, if ;niv tlicrc be, for four succes- 2890 TAXES, COLLECTION OF— 7//. Sale Realty. Cli. 72 sive weeks inmiediately preceding the day of sale. If there be no newspaper published in the county, such advertisement must be posted for four weeks at some public place in each township of the county, except that in which the courthouse is located, in addition to posting at the courthouse door. Such advertisement must contain a notice that all the lands whose owners are delin- quent in payment of their taxes of the preceding year will be sold, and shall set out a list of the lands to be sold and the amount of taxes, expenses and costs due by each delinquent owner, giving his name. Code, s. 3691; 1901, c. 558, s. 3. 2891. How made. All sales of real estate for taxes shall be at public outcry to the highest bidder. All the advertised real estate of each delinquent shall be sold at the same time as one body, and no bid therefor shall be received unless sufficient in amount to dis- charge all the taxes due by the delinquent, together with all costs and expenses of sale. If no such bid be received, the county, city or to^^^l, as the case may be, shall be deemed the purchaser and the sheriff shall so record it on his sales book. If any bidder fail to pay the amount of his bid immediately upon his being declared the pur- chaser the sheriff may resell at once if he deem it proper to do so. Code, ss. 3693. 3694 : 1901, e. 558, ss. 37, 4. 2892. Sales book to be kept; copy filed with register of deeds; copy evidence of regularity, etc. The sheriff shall keep a sales book in which shall be entered and shown what real estate he sells for ■ taxes, the name of the delinquent in whose name such real estate was listed, the amoiint of the taxes, costs and expenses for which it was sold and the name of the purchaser and amount of his bid, where there was a purchaser other than the county, city or town, as the case may be. If the county, city, or town become the purchaser under the provisions of law^, he shall record the fact in such book. A copy of this book, certified by the sheriff, shall be filed with the clerk of the county connnissioners, or the city or town aiithorities, as the case may be, within one year after the sale. Such certified copy shall be prima facie evidence of the truth of the matters therein contained, and of the regularity of the sales therein recorded. When the sheriff makes a deed to any land sold for taxes he shall make an entry to that effect in the sales book opposite the descrijition of the land conveyed. 1901, c. 558, ss. 5, 10. 2893. Records sufficient proof of sale. The books and records belonging to the offices of the register or sheriff, or copies thereof properly certified, shall be deemed sufficient evidence to prove the 871 2893 TAXES, COLLECTION OF— VII. Sale Eealty. Ch. 72 sale of any real property for taxes, the redemption thereof or the payment of the taxes thereon. 1901, c. 55S, s. 20. 2894. Listed in name of wrong person. No sale of real es- tate shall be void because such real estate was charged in the name of any other jjerson than the rightful owner, if such real estate be in other respects sufficiently described. But no sale of property so listed in the name of the wrong person shall be held valid where the rightful owner has listed the same and paid the taxes thereon. 1901, c. 558, s. 25. 2895. Irregularities immaterial. No irregularities in making as- sessments or in making the returns thereof in the equalization of property as provided by law, or in any other proceeding or require- ment of law, shall invalidate the sale of any real estate Avhen sold by the sheriff for delinquent taxes, nor in any manner invalidate the tax levied on any property or charged against any person. 1901, c. 558, s. 27. 2896. Irregularities defined. The following defects, omissions and circumstances occurring in the assessment of any property for taxation, or in the le^'y of taxes, or elsewhere in the course of the proceedings, up to and including the execution and delivery of the deed for property sold for taxes, shall be taken and deemed to be mere irregularities within the meaning of the next preceding sec- tion: The failure of tlie assessors to take or subscribe an oath or attach one to an assessment roll ; the omission of a dollar mark or other designation descriptive of the value of figiires used to denote an amount assessed, levied or charged against any property or the valuation of any property upon any record ; the failure to make or serve any notice mentioned in this chapter ; the failure or neglect of the sheriff to offer any real estate for sale for delinquent taxes thereon at the time mentioned in the advertisement or notice of such sale ; failure of the sheriff' to adjourn such sale from day to day, or any irregularity or informality in such adjournment; any irregularity or informality in the manner or order in which real estate may be offered for sale ; the failure to assess any property for taxes or to levy any tax within the time provided by law ; any irregularity, informality or omission in any such assessment or levy; any defect in the description, upon any assessment book, tax list, sales book, or otiier record, of real or personal property a.ssessed for taxation, or \i])on which any taxes are levied, or wliicli may be .sold for taxes; provided such description be sufficiently definite to enable the sheriff, or any person inten^stod, to determine what projierty is meant or intended by tlic description, and in such case a defoctive or indefi- 2896 TAXES, COLLECTION OF— T77. Sale BeaUij. Cb. 72 nite description, on any book, list or' record, or in any notice or advertisement, may be made definite by the sheriff in the deed by which he may convey such property, if sold for taxes, by inserting in such deed a proper and definite description of the property so defectively or indefinitely described ; any other irregularity, infor- mality or omission or neglect on the part of any person or in any proceedings, whether mentioned in this section or not; the omission of a seal to the sheriff's deed ; the neglect or omission to tax or assess for taxation any person or property ; the overtaxation of persons or property liable to be taxed. 1901, e. 558, s. 28. 2897. De facto officers, acts of, valid, in all actions, proceed- ings and controversies involving the question of title to real property held binder and by virtue of a sheriff's certificate of sale for taxes or tax deed, and all acts of assessors, sheriffs, clerks, supervisors, com- missioners and other officers de facto, shall be deemed and construed to be of the same validity as acts of officers de jure. inoi, c. 558, s. 24. 2898. Cancellation of void sales and deeds. Whenever it shall be made to appear to the satisfaction of the sheriff, either before the execution of a deed for real property sold for taxes, or upon the deed being returned by the purchaser, that any real estate was sold which was not subject to taxation or upon which the taxes had been paid previous to the sale, he shall make an entry opposite such tract or lot on the record of same that the same was erroneously sold, and such entry shall be evidence of the fact therein stated ; and in such cases the purchase-money shall be refunded to the purchaser as pi'ovided by this chaj^ter. If such deed has been registered, the sher- iff may nullify the same by writing on the margin of the register's book, at the page on which said deed appears, that the same is can- celled pursuant to this section and for the causes herein set forth, inoi, c. 558, s. 22. VIII. Ceetificate of Sale. 2899. Sheriff issues to purchaser; form. The sheriff shall give to the ]iurehaser of real estate sold for taxes a written certificate, under his oflicial signature, to the effect and in the form following: North Carolina County. I, . . . ., slierifT of the county of , do hereby certify that the follo\vin« described real estate in said county and state. to-\vit (describing the same and stating in whose name it was listed on the tax lists), was, on the .... day of , 190. ., duly sold by me. in the manner provided by law, for the delin- quent taxes of for the year 190... amounting to dollars, including interest and penalty thereon and the cost allowed by law, when and S73 2899 TAXES, COLLECTION OF— T7//. Cert, of Sate. Cli. 72 where (name of the purchaser) purchased said real estate at the price of dollars, he being the highest and best bidder for the same. And I further certify that unless redemption is made of said estate in the manner provided by law, the said , his heirs or assigns, will be entitled to a deed in fee therefor on and after the .... day of , A. D. 100. ., on surrender of this certificate. In witness wliereof, 1 have hereunto set my hand, this .... daj' of A. D. 190. . SherilT. 1901, c. 558, s. 9. 2900. Separate certificates required, wtien. The real estate of each delinquent shall be inserted in a separate certificate notwith- standing the fact that the same person may have jnirchased the real estate of several delinquents. But this shall not apply to lands held in cotenancy or joint tenancy. Stich lands may be inserted in one certificate, no matter how many delinquents may be interested therein. 1901, c. 558, s. 9. 2901. Certificate when county, city, etc., is purchaser; right of corporation to transfer. When the county or other munici- pal corporation becomes the purchaser, under the provisions of this chapter, of any real estate sold for taxes, the sheriff shall issue a certificate of purchase in the name of such corporation substantially in the form provided by the two preceding sections. Such certifi- cates shall remain in the custody of the sheriff, and at any time the county commissioners may assigni such certificates to any person wishing to buy, for the amount expressed on the face of the cer- tificate and interest thereon at the rate per centum M-liich the taxes were drawing at the time of the purchase, or for the total amount of all tax on such real estate. Such assignment may be made by the en- dorsement of the name of the county by the chainn.tn of the board of county commissioners, and such endorsement shall be made when ordered by the county commissioners. The commissioners or other governing body of the municipal corporation other than a county shall have the same right of transfer as is above conferred, such transfer to be made by the mayor or trea.surer of sucli corporation and in its name. 1901, 0. 558, ss. 37, 39. 2902. Certificate presumptive evidence of validity. The sher- iff's ci-rtificate of sale and purchase sliail be presnui]iti\-e evidence of the regularity of all )irior proceedings incident to such sale and purchase and of the due performance of all things essential to the validity thereof. ■1901, c. 558, s. 9. 2903 TAXES, COLLECTION OF— IX. Deeds, etc. Ch. 72 IX. Deeds Undee Tax Sale. 2903. Notice of purchase, what to contain; how published; when and on whom served. Xo pmeliaser or assignee of such jiur- chaser of any real estate, at any sale for taxes or special assessments due either to the state or any county or any incorporated town or city within the same, or at any sale for taxes authorized by the law of this state, shall be entitled to a deed for the real estate so pur- chased until the following conditions have been complied with, to- ^vit: Such purchaser or assignee shall serve or cause to be served a written or printed, or partly written and partly printed, notice of such purchase on every person in actual possession or occupancy of such land or lot, and also on the person in whose name the same was taxed or specially assessed, if upon diligent inquiry he can be found in the county, and also upon any person, firm or corporation having a mortgage or deed of trust upon said land or lots recorded in the county where the land is situated, if upon diligent inquiry such per- son, firm or corporation can be found, and if he, they or it can not upon diligent inqiiiry be fovmd, then publication shall- be made as hereinafter provided, at least three months before the expiration of the time of redemption, in which notice he shall state when he purchased the land or lot, a description thereof, in whose name it was taxed, for wliat _year taxed or specially assessed, and when the time of redemp- tion will expire. If no person is in actual possession or occupancy of such land or lot, and the person in whose name it was taxed or assessed can not upon diligent inqiairy be foTind in the county, then such person or his assignee shall publish such notice in some news- paper published in such county, and if no newspaper is published in the county, then the newspaper that is published in this state near- est the county-seat of the county in wliich such real estate is situ- ated, Avhich notice shall be inserted three times, the first not more tlian five months and the last time not less than three months be- fore the time of redem])tion shall expire. The fee for such publi- cation in a newspaper shall not exceed three dollars for each tract so advertised. 1901, c. 558, ss. 15, 17 ; 1905, c. 431. 2904. Purchaser to make affidavit before receiving; what affi- davit to contain. Every person who Juis i)urchase(l any himl at a tax sale, or the assignee of such person, by liimself or agent, before he shall be entitled to a deed for such land, shall make an aflidavit of his having complied with the conditions of this chapter as to giving notice of such purchase, stating particularly the facts relied on as such compliance, which affidavit shall be presented to the per- son authorized by law to execute such tax deed, to be by such officer 290i TAXES, COLLECTION OF— ZA'. Deeds, etc. Ch. 72 delivered to the register of deeds and entered on the record of his (itiice and carefully preserved among the files of his office, which record or affidavit shall be prima facie evidence that such notice had been given. The register shall be entitled to the same fee tlierefor as is allowed by law for registering deeds. The conditions of this and the next preceding section shall not be required when any county or incorporated Xowa or city shall become the purchaser. 1901, p. 558, s. 10. 2905. Deed when and by whom to be made. At any time after one year, and \\ithin two years, from the day of sale of any real estate for taxes and upon demand of the purchaser and his pro- duction of the certificate of such sale and purchase, the sheriff shall, if the real estate has not been previously redeemed, as allowed by law, execute a conveyance to the purchaser, his heirs or assigns, for the real estate described in the certificate. If the certificate be lost, such conveyance may be made by the sheriff upon his being satisfied of such loss. When the sheriff has made due sale of land for taxes and dies before executing a deed thereto, or when a sheriff dies, and, in collecting taxes due on lists that were in his hands for collection, his executor or administrator, or anyone acting for the sureties on his bond, shall have made sale for taxes as contemplated by law in all such cases, his successors in office shall execute a deed or convey- ance to the person entitled to the same. If the county or other mu- nicipal corporation be the purchaser or holder of the certificate, the sheriff shall execute such deed upon demand of the county commis- sioners or governing board of such otlier municipal corporation. 1901, c. 558. s, 18. Note. See also ss. 950, 951. 2906. Form. Deeds made by the sheriff' for real estate sold for taxes shall be substantially in the following form : North Carolina, County. Whereas, at a sale of real estate for the nonpayment of taxes, made in the county of , on the .... day of , 190... the following-described real estate which was listed in the name of , in township of said county, was sold, to-wit. (Hero place description of real estate conveyed) ; and. Whereas, The same not liaving been redeemed from such sale and it appearing that the holder of the certificate of purchase of said real estate has complied with the laws of North Carolina necessary to entitle (insert the name of grantee) to a deed of said real estate; now, therefore, I, , sheriff of said coiinty of , in consideration of the premises and by virtue of the statutes of North Carolina in such cases provided, do hereby grant and convey unto in fee simple the said real estate hereinbefore described, subject, however, to any right of redemption provided by law. Oivcn under my hand and seal, this .... day of , A. D. 190. . , Sheriff. (Seal.) 1901, p. 558, s. 19. 876 2907 TAXES, COLLECTION OF— /A'. Deeds, etc. Ch. 72 2907. Separate deeds required, when. The real estate of each delinquent shall be conveyed by a separate deed, notwithstanding the fact that the same person may have purchased the real estate of several delinquents. This shall not apply to lands held in cotenancy or joint tenancy. Such lands may be conveyed by one and the same deed, no matter how many delinquents may be interested therein. 1901, c. 558, s. 10. 2908. Registration. All deeds made pursuant to this chapter by the sheriff shall be registered in the same manner as other convey- ances of real estate, and shall vest in the grantee, his heirs and assigns, the title of the property therein described. 1901, c. 558, s. 19. 2909. Evidence of what. Deeds made by a sheriff for real estate sold for taxes shall be presumptive evidence in all courts of this state in all controversies, actions and proceedings in relation to the rights of the jDurchaser, his heirs or assigns, to the lands thei-eby conveyed, of the following facts : 1. That the real estate conveyed was subject to taxation for the year or years stated in the deed. 2. That the taxes were not paid at any time before the sale. 3. That the real property conveyed had not been redeemed from the sale at the date of the deed. 4. That the jsroperty had been listed and assessed. 5. That the taxes were levied according to law. 6. That the property was sold for taxes, as stated in the deed. 7. That all notices of such sale required to be served upon the delinquent or others had been duly served, and due advertisement of the sale had been made. And such deeds shall be conclusive proof of the following facts : 1. That the manner in which the listing, assessment, levy and sale were conducted was in all respects as the law directed. 2. That the grantee named in the deed was the purchaser or his assignee. 3. That all the pre-requisites of the law were complied with by all the officers who had or whose duty it was to have had any part or action in any transaction relating to or affecting the title conveyed or purporting to be conveyed by the deed, from the listing and valu- ation of the property up to the execution of the deed, both inclusive, and that all things whatsoever required by law to make a good and valid sale and to vest the title in the purchaser were done, except in regard to the points named in this section, wherein the deed shall be presumptive evidence only. 2900 TAXES, COLLECTIOX OF— IX. Deeds, etc. Cli. 72 And in all controversies, actions and proceedings involving the title of real property claimed and held nnder and by virtue of a deed made substantially' as required by this chapter, the person claim- ing title adverse to the title conveyed by such deed shall be required to prove, in order to defeat the title which such deed purports to convey, either that such real property was not subject to taxation for the year or years named in the deed or that the taxes had been paid before the sale, or that the property had been redeemed from the sale according to the provisions of this chapter, and that sucli redemption Avas had or made for the use and benefit of the persons having the right of redemi^tion \inder the laws of this state, or that there had been an entire omission to list or assess the property, or to levy the taxes, or to sell the property. Xo person shall be per- mitted to question the title acquired by a sheriff's deed made pur- suant to this chapter without first showing that he or the person under whom he claims title had title to the property at the time of the sale, and that all taxes diie upon the property have been paid by such person or the person under whom he claims title. But siich deeds shall not pass title where the taxes for which the sale was had had been paid in full prior to such sale. And in all cases where the owner of lands sold for taxes shall resist the validity of such tax title, such owner may prove fraiid committed by the officer selling the same, or in the purchaser, and, if such fraud is estab- lished, such sale and title shall be void. No action for the recovery of real property sold for tlxe nonpayment of taxes shall lie unless the same be brought within three years after the sheriff's deed is made as above provided : Provided, that where the owner of such real jiroperty sold as aforesaid at the time of such sale be a minor or insane or a convict in the penitentiary, three years after such disability shall be removed shall be allowed such ]ierson, his heirs or legal representatives to bring action. 1901, c. 558, s. 20. Note. See also, ss. 362, 395. X. Purchasers ,\t Tax Sai.k. 2910. Purchaser reimbursed by county when sale by mistake, etc.; liability of sheriff; state to refund, when. When by mistake or wrongful act of the sheriff' real estate has been sold on which no tax was due at the time, or whenever land is sold in consequence of error in describing such land in the tax receipt, the county or other municipal cori)oration shall reimburse the purchaser by paying to him the amount of principal and costs by him expended in such piir- chase, with interest thereon at six per centum per annum ; and the sheriff' shall be liable to the county, or other muni('i]ial corpora- 2910 TAXES, COLLECTIOX OF— A'. Purchaser^, etc. Ch. 72 tion, upon his tax bond, for all amounts so expended by it ; or the purchaser and assigns may recover such amount and interest directly from the sheriflF in an action upon his tax bond. But the sheriff and his sureties in all such cases as are provided for in this section shall be liable only for the wrongful acts of the sheriff and his deputies. Any amount paid by the county under this section for state taxes shall, on proper certificate from the chairman of the board of county commissioners, be allowed by the auditor and paid by the state treasurer. 1901, e. 558, s. 21. 2911. Lien of purchaser. The purcha.ser at a sale for taxes, and his heirs and assigns, shall have a lien on the real estate by him purchased at such sale for the amount of the purchase-money paid and all interest, penalties, costs and charges allowed him by law ; and, if, after his purchase, he pays any taxes levied upon or which constitute an incumbrance upon such real estate, whether assessed before or after such purchase, he shall have a lien for all sums so paid out and for all interest, penalties, costs- and charges allowed him by law. 1901, c. 558, s. 9. 2912. Remedies of purchasers at tax sales; foreclosure by action; duty of county to foreclose. Every holder of a certitieate of sale of real estate for taxes shall be subrogated to the lieu of the state and of the county or other municipal corporation, for the taxes for which such real estate was sold, and, instead of demanding a deed for such real estate under the provisions of this chapter, shall be entitled to a judgment for the sale of such real estate for the satis- faction of whatever sums may be due to him \ipon such certificate of sale and for any other amounts expended by him upon any other such certificate of sale of such real estate, or for taxes paid which were a lien upon such real estate, whether paid prior or subsequent to the acquisition of such certificate of sale. Such relief shall be aft'orded in an action in the nature of an action to foreclose a mort- gage, which action must be commenced within two years fi'om the date of the last certificate of sale held by the plaintiff. Such action shall be governed in all respects, as near as may.be, by the rules governing actions to foreclose a mortgage. Any one who has jiaid taxes on the subject matter of the action, or who holds a certificate of sale thereof, may be made a party and his rights enforced therein. In such action the plaintiff must show that he gave ten days writ- ten notice of his intention to commence the same to the owner or occ\ipant of the real estate which it is sought to sell ; and in the complaint filed in such action each certificate of sale held by the 2912 TAXEy, COLLECTION OF— A'. Purchasers, etc. Cli. 72 plaintiff and each sum expended by him for taxes on such real estate, shall be set out as a separate cause of action. Inability to find the owner or occupant in the county shall excuse a failure to notify him of plaintift"s intention to sue. The holder of a deed for real estate sold for taxes sliall be entitled to the remedy provided by this section, if he elect to proceed there- under. He must commence such action within two years from the last deed or certificate of sale held by him. Every county or other municipal corporation shall have the right to foreclose for taxes luider the provisions of this section, and it shall be the duty of its commissioners or other governing body or olficials to institute and diligently prosecute such actions for all taxes on real estate for which it holds tax sale certificates or deeds remaining unredeemed as much as four years from the dates of such instriunents. No such actions by such corporations shall be barred by the lapse of time as is above provided in this section or elsewhere in this Revisal, for other actions, but only by the lapse of five years from the delivery of the certificate of sale or deed sought to be foreclosed. In every action brought under this section, whether by a private individual or by the county or other municipal corporation, or any other corporation, the plaintiff shall, except in cases otherwise provided by law, be entitled to recover interest at the rate of twenty per centum per annum on all amounts paid out by him, or those under whom he claims, and evidenced by certificates of tax sale, deed under tax sale and tax receipts. Such interest shall be com- puted from date of each pa;}nnent up to the time of redemption or final judgment, and shall be added to the principal of the final judgment, which judg-ment shall bear interest as in other cases. 1901, c. 558, ss. 34, 35, 36, 44. XL Eedeju'tio^x. 2913. When, by whom and how effected; amount to be paid. The owner or occujiant of any land sold for taxes, or any person hav- ing a lien thereon or any interest or estate therein, may redeem the same, at any time within one year after the day of such sale, by paying the sheriff for the use of such purchaser, his heirs or assigns, the sum mentioned in his certificate, with interest tliereon at the rate of twenty per centum per annum from tlic date of purchase, together witli all other taxes subsequently paid, whether for any year previoiis or subsequent to such sale, and interest thereon at the same rate from tJie date of such payment, together with all costs and expenditures made or incurred in carrying out the provisions of this cha])ter. The sheriff shall enter a memorandum of the rpdcmption in the SSO 2913 TAXES, COLLECTION OF— XI. Redemption. Ch. 72 list of sales and give a receipt therefor to the person redeeming the same, for which he ma^' charge a fee of twenty-five cents, to be paid by the person redeeming, and shall hold the redemption money paid, subject to the order of the purchaser, his agent or attorney. But if any such purchaser, other than a county or other municipal corporation, shall suffer such real estate to be again sold for taxes, he shall be entitled to only ten per cent, interest, instead of twenty per cent., as allowed in this and' the next preceding section. Infants, idiots and insane persons may redeem any land belonging to them within one year after the expiration of such disability on like terms as if the redemption had been made within one year from the date of said sale and from the date of each subsequent payment of taxes thereon at the rate of twenty per centum per annum on the several amounts so paid by the purchaser until redemption. IflOl, c. .5.58, ss. 11, 12. 2914. To whose benefit it inures. Any redemption made shall inure to the benefit of the person having the legal or equitable title to the property redeemed, subject to the right of the person making the same to be reimbursed by the person benefited ; which reimburse- ment is hereby made a condition precedent to 'the vesting of any interest or estate, under the benefits of this section, in the real estate redeemed in the person whose duty it is to make siich reimbursement. moi, c. 5.58, s. 11. Hcv. \'ol. 1—52 2!>10 TOWA'S — /. Iiic(ir/)uratiuii aitd Fuirers. L'li. CHAPTER 7:3. TOWNS. Sections. I. Incorporation and powers, 2915 — 2918 II. Commissioners, 2919 — 2922 III. Powers of commissioners, 2923 — 2930 IV. Mayor, 2931—2937 V. Constable, 2938—2940 VI. Officers, 2941—2943 VII. Klections. 2944 — 2967 VIII. Taxes, 29G8 — 2973 IX. Municipal debts. 2974 — 2977 X. Municipal propert.v sold, 2978 — 2980 XI. liegTilation of buildings, 2981 — 3011 I. Inc()i;]'()]!.vtiox .vxd Poavei;s. 2915. Every town a body politic. P^very iucoipoiated cit.v or town is a body politic and corporate, and shall have the powers pre- scribed bv statute, and those necessarily ini]ilied bv law, and no other. Code, s. 702. 2916. Corporate powers. A city or town is authorized: 1. To sue and be sued in its corporate name. 2. Out of any funds on hand, and without crcatinu' any debt, to purchase and hold real estate for the use of its inhabitants. 3. To purchase and hold land, within or without its limits, not exceeding' fifty acres, for the pnrjaose of a cemetery, and to pro- hibit the burial of persons at any other place in said town, and to rcaulate the manner of burial in such cemetery. .Ml municipal corporations purchasing real i>roperty at any trustee's or mortgagee's sale or commissioner's sale or execution or tax sale shall be entitled to a cf)nveyance therefor from the trustee, mortgagee or other person or officer conducting such sale, and deeds to such munici]ial cor]>ora- tions or their assigiis shall have the same force and effect as convey- ances to i^rivatc ]iurchasers. The provisions of this subsection shall a)3p]y to such sales and conveyances as may have been heretofore made by the persons and officers mentioned in the foregoing section. 4. To make such contracts and purchase and hold such personal ]iroperty as may be necessary to the exercise of its jiowers. T). To make such orders for the disposition or use of its ]iro|M?rty as the interest of the town reipiires. i".ilil TOWNS — I. Incni-jwriifioii and J'oircrs. Ch. To li. To graut upou reasouable terms franchises for public utilities. 7. To provide for the municipal government of its inhabitants in I lie manner required by law. s. To levy and collect such taxes as are authorized by law. H. To do and perform all other duties and powers authorized bv law. (•full'. >s. 704. 3S17; 1901. e. 2S.3 ; 11I0.3. c. ."vii;. 2917. How corporate powers exercised. The corporate powers can be exercised only bv the board of commissioners, or, in pursu- ance of resolutions adopted by them, imless otherwise specially pro- vided by law ; which board shall consist of not less than three nor more than seven commissioners. Codf. ss. 703, 37S7; R. C, c. 111. s. 1. 2918. How far this ciiapter applicable; meaning of "commis- sioners." Tills chapter shall apply to all inc(ir]i(.)rafrd cities ami towns wliere the same shall not be inconsistent with special acts of incorporation, or special laws in reference thereto, and the word "conunissioners" shall also be construed to mean "aldermen," or other governing municipal authorities. The sections of this chapter relating to municiiJal or town elections shall apply to all cities and to^nls not expressly excepted by law. Code, s. 3827; R. C, c. Ill, s. 23. II. COMMISSIOIMEES. 2919. Elected biennially by qualified voters. The board of com- missioners of each town shall be biennially elected by the qualified voters thereof, at the time and in the manner prescribed by law. CoiU-, s. 37S7. 2920. Oath of office of. The commissioners shall take and sub- scribe an oath before some person authorized by law to administer oaths that they will faithfully and impartially discharge the duties of their oiRcc, and .such oath shall be filed with the mayor of such town and entered in a book kept for that purpose. Code. s. 37nn: R. C. c. Ill, s. 12. 2921. Vacancy, how filled. In case of a vacancy after election in the office of commissioner the others may fill it until the next election. Code, s. 3793: R. C, c. Ill, s. 9. 2922. How number of, changed. After the first election the viiters of any town may, whenever and as often as they choose, at 883 2022 TOWNS— 77. Commissioncrg. Ch. 73 the time of electing commissioners, and after due notice given thereof by the commissioners then in authority, by a majority of all the votes cast, alter the number of commissioners, so that the number be not more than seven nor less than three; and thence- forth the number of commissioners agreed on shall be chosen. Code, s. 3791; K. C, e. Ill, s. 7. III. Powers of Commissioners. 2923. Ordinances, rules and regulations made by. The board of commissioners shall have power to make ordinances, rules and regulations for the better government of the town, not inconsistent with this chapter and the law of the land, as they may deem neces- sary; and may enforce them by imposing penalties on such as vio- late them; and may compel the performance of the duties imposed upon others, by suitable penalties. Code, ss. 3799, 3804; R. C, c. Ill, ss. 12. 17. Note. For proof of ordinances on apj>eal, see Evidence, s. 1595. 2924. May levy taxes. The board of commissioners may annu- ally levy and cause to be collected for municii:)al purposes a tax not exceeding fifty cents on the hundred dollars, and one dollar and fifty cents on each poll, on all persons and property within the cor- poration, which may be liable to taxation for state and county pur- poses; and may annually lay a tax on all trades, professions and franchises carried on or enjoyed within the city, unless otherwise provided by law ; and may lay a tax on all such shows and exhibi- tions for reward as are taxed by the general assembly ; and on all dogs, and on swine, horses and cattle, running at large within the town; and on all persons, apothecaries and druggists excepted, re- tailing or selling liquors or wine of the measure of a quart or less, a tax not exceeding twenty-five dollars per year, if the sale of liquor is allowed in such town. Code, s. 3800; R. C, c. Ill, s. 13; 1862, c. 51. 2925. May appoint a constable and other officers; fix salary of mayor and others. The board of commissioners may appoint a town constable, and such other officers and ngcnts as may be neces- sary to enforce their ordinances and regulations, keep their records, and conduct their afl^airs; may determine the amoimt of their sala- ries or compensation ; and also the compensation or salary of the mayor; may impose oaths of office upon them, and require bonds from them payable to the state, in proper penalties for the faithful discharge of their duties. Code, 9. 3800; R. C. c. 111. s. 13; 18G2, c. 51. L'0i2(i TOAVjS'^S — ///. Powers of Commissioners. Cli. 7:5 2926. May appoint police. The board of commissioners may ap- point town watch or police, to be regulated by such rules as the board may prescribe. Code, s. 3803; R. C, c. Ill, s. 16. 2927. Policemen may execute criminal process. A policeman shall have the same authority to make arrests and to execute criminal process, within the town limits, as is vested by law in a sheriff. Code, s. 3811. 2928. May establish and regulate markets; street sales free, when. The board of commissioners may establish and regulate their markets, and prescribe at what place, within the corporation, shall be sold marketable things ; in what manner, whether by weight or measure, may be sold grain, meal or flour (if the flour be not packed in barrels), fodder, hay, or oats in straw; may erect scales for the purpose of weighing the same, appoint a weigher, fix his fees, and direct by whom they shall be paid. But it shall not be lawful for the commissioners or other authorities of any town to impose any tax whatever on wagons or carts selling farm jiroducts, garden truck, flsh and oysters on the public streets thereof. Code, s. 3801; R. C, c. Ill, s. 14; 1879, c. 170. 2929. May abate nuisances. The board of commissioners may pass laws for abating or preventing nuisances of any kind, and for preserving the health of the citizens. Code, s. 3802; R. C, c. Ill, s. 15. 2930. Shall repair streets and bridges. The board of commis- sioners shall jDrovide for keeping in proper repair the streets and bridges in the town, in the manner and to the extent they may deem best ; may cause such im23rovements in the town to be made as may be necessary, and may apportion the same equally among the inhabi- tants, by assessments of labor or otherwise, and the citizens shall not be liable to work on the public roads without the limits of the town. When they determine to repair or improve by labor, they may appoint an overseer and compel such persons as are liable to perform duty on the public roads to work on the streets, in the manner and under the penalties provided in the general law for the reparation of the public roads. Code, s. 3803; R. C, c. HI, s. 16. Note. For prohibition of title to streets, etc., by occupancy, see ss. 388, 389. 2931 TOWNS— /r. Mtujur. Ch. 7:1 IV. :\rAYoi;. 2931. How elected; vacancy. In like luanuer, aud at the same time when conmiissioiiers are elected, the voters may by ballot, under the inspection of the same persons and under the same rules and regulations, elect a uiayor of the town ; aud the persons having the highest number of votes shall be declared elected. In case of a vacancy in the office, the commissioners may fill the same. Code, s. 3794; E. C, o. Ill, s. 10. 2932. To take oath of office. The mayor, before some justice of the peace, or other person authorized by law to administer oaths, shall take and subscribe the oaths prescribed for public officers, and an oath that he will faithfully and impartially discharge the dutie> imposed upon him by law, which said oath shall be filed with the records of the town and be entered on the same book with the oaths of the commissioners. Code, s. 3798; R. C. c. Ill, s. 11. 2933. Presiding officer at commissioners' meetings; mayor pro tern. The mayor shall preside at the meetings of the commissioners, but shall have no vote except in case of a tie ; and in the event of his absence or sickness, the board of commissioners may appoint one of their number pro tempore, to e.xcrcise his duties. Code, s. 3794; R. C, c. Ill, s. 10. 2934. Criminal jurisdiction of. The mayor of every city or incor- porated town is hereby constituted an inferior court, and as such court such mayor shall be a magistrate and conservator of the peace, and within the corporate limits of his eit^' or town shall have the jurisdiction of a justice of the jieace in all criminal matters arising under the laws of the state, or under the ordinances of such city or town. The rules of law regulating proceedings before a justice of the peace shall be applicable to proceedings before such mayor, and he shall be entitled to the same fees which arc allowccl to justices of the peace. Code, s. 3818; 1871-2, c. U).') ; 1876-7, f. 24:!. 2935. Ordinances and penalties enforced; appeals. .Vs such court the mayor shall have authority to hear auv warehouse a bill plainly stating the amount charged for weighing and handling, the amounts charged for auction fees, and the com- mission charged on such sale, and it shall be unlawful for anj' other charges or fees to be made or accepted. For each and every viola- tion of the provisions of this subchapter a jicnalty of ten dollars may be recovered by any one injured thereby. 1895, c. 81, .ss. 3, 4. 3045 WATEE SUPPLIES—/. Protection of Watersheds. Ch. TG CHAPTER 76. WATER SUPPLIES. Sections. I. Protection of watersheds, 3045—3053 II. Analyses, 3054—3057 III. Miscellaneous provisions, 3058 — 3060 IV. For public institutions, 3061—3062 I. Protection of Watersheds. 3045. Inspection of. Any water-works that derive their supply from lakes or ponds or from small streams not more than fifteen miles in length, shall have a sanitary inspection of the entire water- shed not less, imder any circumstances, than once every three calen- dar months, and a sanitary inspection of any particular locality on said watershed at least once in each calendar month, whenever in the opinion of the board of health of the city or town to which the water is supplied, or when there is no such local board of health, in the opinion of the county superintendent of health, or, in the opinion of the state board of health, there is reason to apprehend the infec- tion of the water in that particular locality. Such companies or municipal corporation shall cause to be made a sanitary inspection of any particular locality on said watershed at least once in each week, -whenever in the opinion of the board of health of the city or town to which the water is supplied, or when there is no such local board of health, in the opinion of the county superintendent of health, or in the oi^inion of the state board of health, there is special reason to apprehend the infection of the water from that particular locality by the germs of typhoid fever or cholera. The inspection of the entire watershed, as herein provided for, shall include a par- ticular examination of the premises of every inhabited house of the watershed, and in passing from house to house a general inspection for dead bodies of animals or accumulation of filth. It is not intended that the term "entire watershed" shall include uninhabited fields and wooded tracts that are free from suspicion. The inspec- tion shall be made by an employee of, and at the expense of said water company or municipal corporation, in accordance with rea- sonable instructions as to method, to be furnished by the secretary of the state board of health. The said sanitary inspector shall give in person to the head of each household on said watershed, or in his absence to some member of said household, the necessary directions 915 L. 3045 WATEE SUPPJ.IES— 7. Prolcrlioi, of Watersheds. Ch. 7G for the proper sanitary care of his premises. It shall further be the duty of said inspector to deliver to each family residing on the watershed such literature on pertinent sanitary subjects as may be supplied him hy the municipal health officer or by the secretary of the state board of health. 1899, c. 670; 1903. c. 159, s. 2. 3046. Rivers and large creeks inspected fifteen miles. In case of those comjiaiiies obtaining their supply of water from rivers or large creeks having a minimum daily flow of ten million gallons the provisions of the preceding section shall be applied to the fifteen miles of watershed draining into the said river or creek next above the intake of the water-works. 1899, c. (570, s. :l; 190:5, c. 159, s. ?>. 3047. Penalty for failing to inspect. Fiiihue on the part of any water comjiany to comply with the requirements in regard to inspec- tions and analyses provided for in this chapter, shall be punished by a deduction, from any charges for water against the city or town supplied of twenty-five dollars for each and e\-ery such failure: Pro- vided, that ill uu one year shall the sinii i>f siu-h forfeitures exceed five hundred dollars. 1899, c. 070, s. 4; 1903, c. 159, b. 5. Note. When \vater-\vork.s omied liy munic-ipality, olliccis fiiiliiifj to make inspection indictable, see .s. 3861. 3048. Cities and towns to make inspection. Every city or town having a ])ublic water supply shall, at its own expense, have made at least once in every three months by one of its own officials a sani- tary inspection of the entire watershed of its water supply, and it shall be the duty of the official making siu-h iuspoctioii to re])ort to the mayor any violation of this chaiiter. 1899, c. C70, s. 5; 1903, c. 159, s. 6. 3049. Residents on watersheds to obey instructions. Every person residing or owning property on the watershed of a lake, pond or stream, fmiu which a public drinking suiijdy is obtained, shall carry out such reasonable instructions as may be furnished him in the manner hereinbefore set forth, or directly by the municipal health officer, or by the state board of health. 1903, c. 159, s. 7. Note. Fiiilnic to comply witli tliis section a niisilcnicanor, sec Crimes. 3050. Inspectors may enter upon premises. Each sanitary in- spector herein 5 rovided for is authorized and empowered to enter upon any preniii:'is and into any building upon his respective water- shed for the purpose of making the inspections required. 1899, c. 670, s. 8; 1903, c. 1.59, s. 10. ;3051 WATER SUPPJJEy— /. Prolcdiuu of Watrrsheds. Ch. 7G 3051. Sewage not discharged in. No person or municipality shall flow or discharge sewage into any drain, brook, creek or river from Avhich a public drinking water siipply is taken, unless the same shall have been passed through some well known system of sewage purification approved by the state boai'd of health ; and the continual flow and discharge of such sewage may be enjoined upon application of any person. 1903, c. 159, s. 13. Note. For violation of above section, see s. 3858. Polluting watershed misdemeanor, see s. 38G2. Depositing human excreta misdemeanor, see s. 3857. 3052. Towns, etc., not having sewerage system. All sdiools, hamlets, villages, towns or industrial settlements which are now located, or may hereafter be located on the shed of any public water siipply, not provided with a sewerage system, shall provide and main- tain a tub system for collecting human excrement, and provide for removal of the same from the watershed at least twice each week. 1903, c. 159, s. 14. Note. Failure to comply with this section misdemeanor;"see s. 3861. 3053. No cemetery on watershed. No burying gi-ouud or ceme- tery shall be established on the watershed of any public water sup- ply nearer than five hundred yards of the source of supply. ir)03, c. 159, s. 15. II. Analyses. 3054. To be made. Every water company, whether owned by private individuals or corporations, or by a municipality, shall liave made, not less frequently than once in every tlircc months, at its own expense, by the chemist of the state board of health, or such chemist as the said board may designate, a chemical analysis, and once every month a bacteriological examination at its o%vn expense liy the biologist of the state board of liealth, or such biologist as said board may designate, of a sample of its water drawn from a faucet used for drinking purposes, ]iacked and sliipped in accordance with the instructions to be furnished by the secretary of the state board of health. 1899, c. 670, s. 0; 1903. c. 1.59, s. 4; 1905, c. 287. 3055. State board of health may have examination made; fee. Eor carrying out the provisions of this cliapter the state board of health is authorized and empowered to have the bacteriological exam- ination made as hereinbefore provided for, and to charge for the same the sum of five dollars for each examination. 1903, c. 139. s. 17. 017 305G WATER SUPPLIES—//. Anali/scs. Cli. T(". 3056. State board of health to make examinations. As a check and guarantee (if the faithful perfi.irniance df tlic rei]uircnients laid dciwn in this chapter the state board of health shall make or have made by its authorized agents such inspections of the water- sheds and such chemical and bacteriological examinations of the public water supplies of the state as may be deemed necessary to insure their purity. Should such inspections or examinations show conditions dangerovis to the public health the secretary of the state board of health shall notify the mayor, the municipal health officer and the superintendent or manager of the water-works at fault and demand the immediate removal of said dangerous conditions. If at the end of thirty days after the service of said notice and demand the said dangerous conditions have not been removed to the extent that due diligence could accorai^lish such removal, the said secretary shall have printed in one or more of the local newspapers a plain statement of the facts for the information and protection of the citizens using the water. 1890, c. 670, s. 7; 1903, c. 159, s. 9. 3057. State laboratory of hygiene; analyses of water, sputum, blood, etc.; appropriation for; tax against water companies. Foi- the better protection of the public health and to ]n'event the s]n-cad of communicable diseases there shall be established a state laboratory of hygiene, the same to be under the control and management of the state board of health ; and it shall be the duty of the state board of health to have made in such laboratory monthly examinations of samples from all the public water stipplies of the state. The board shall also cause to be made examinations of well and spring waters when in the opinion of any coxmty superintendent of health or any registered physician there is reason to suspect such waters of being- contaminated and dangerous to health. The board shall likewise have made in this laboratory examinations of sputum in cases of suspected tuberculosis, of throat exudates in eases of susjiected diph- theria, of blood in cases of suspected typhoid and malarial fever, of faeces in cases of suspected hook-worm diseases, and such other exami- nations as the public health may require. For the support of the said laboratory the sum of twelve hundred dollars is hereby appro- priated and an annual tax of sixty dollars, payable quarterly, by each and every water company, municipal, corporate and private, selling water to the people ; said tax to be collected by the sheriff as other taxes and paid by said sheriff directly to the treasurer of the state board of health; and the printing and stationery necessary for the lalK)ratory, to be furnished upon requisition upon the state printer/ 190.5, f. 41."). 3058 WATER SUPPLIES— /Z7. Misc. Provisions. Cb. 76 III. Miscellaneous Provisions. 3058. Precaution against contamination. In the interest of the public health every person, company, municipal corporation or agency thereof, selling water to the public for drinking and house- hold purposes, shall take every reasonable precaution to protect from contamination and assure the healthfulness of such water ; and any provisions in any charters heretofore granted to such persons, com- panies or municipal corporations in conilict with the provisions of this chapter are hereby repealed. 1899, c. 670, s. 1; 1903, c. 159, s. 1. 3059. Mayors to have concurrent jurisdiction. The mayor of each city or town having a public water supply shall have concur- rent jurisdiction with any justice of the peace to hear and determine all violations of this chapter, provided such violation is within the jurisdiction of the jiistice of the peace. 1903, c. 1.59, s. 8. 3060. Condemnation of lands. All water companies operating under charters from the state or license from the municipalities, which may maintain public water supplies may acquire by condem- nation such lands and rights in land and water as are necessary for the successful operation and protection of their plants, said proceed- ings to be the same as iires-^ribed by law for acquiring right of way by railroad companies. 1003, c. 159, s. 10; 1905, c. 287, s. 2; c. 544. IV. Foe Public Institutions. 3061. May enter upon lands to lay pipes, etc. For the purpose of providing water supplies, the directors or other lawful managers of any public institutioji of the state may enter upon the lands through which they may desire to conduct their pipes for the said purpose, and lay them under ground, and they, at all times, shall have the right to enter upon the said lands for the purpose of keep- ing the water line in repair and do all things necessary to that end. 1893. c. 03, s, 1, 3062. Compensation for land. If damages shall be claimed for the use of such lands and the parties can not agree as to the amount of compensatiass his interest in such estate, subject to the dower right of his wife : Provided, that a mortgage or trust deed by the husband to secure the purchase-money, or any part thereof, of land boiight by him, shall, without the wife executing the deed, be effectual to pass the whole interest according to the provisions of the said deed. Code. s. 2106; 1808-9, c. 93, s. 35. 30S(! WILTUWS— //. Dower. Ch. 78 3086. Conveyed by joining in deed. The right to tlower under this chapter sliall pass and he effectual against any widow or per- son claiming under her upon the wife joining with her husband in the deed of conveyance and being privately examined as to her con- sent thereto in the manner prescribed by law. Code, s. 2107; 1868-9, c. 93, s. 3G. Note. See chapter Married Woiiien. III. Dower Allotted. 3087. Assigned by agreement, wlien. If the personal i>roperty of a decedent be sufficient to pay his debts and charges of adminis- tration, the heir or devisee with the widow may, by deed, agree to an assignment of her dower. Code, s. 2110; 1868-9, c. 93, s. 39. 3088. Application for. If no such agreement be made, the widow may apply for assigiiment of dower by petition in the superior court, and, if she fail to make such application within three months after the death of her husband, any heir or devisee may file a petition reciting the facts that the said widow is entitled to dower on certain lands and has not applied for it, and demand that her said dower be assigned to her. In all cases the widow and all heirs and devisees and persons in possession of, or claiming estates in, the lands shall be made parties, and the coiirt shall hear and pass iipon the petition in like manner as in other cases of special proceedings. Cotle, ss. 2111, 2112; 1891, c. 133; 1868-9, c. 93, ss. 40, 41. 3089. How assigned. If dower be adjudged, it shall be assigned by a jury of three persons qualified to act as jurors, unless one of the parties demand a greater number, not exceeding twelve, who shall be summoned by the sheriff to meet on the premises or some part thereof, and being dul}' sworn by the sheriff or other person authorized to administer oaths, shall proceed to allot and set apart to the widow her dower in said premises according to law and make report of their proceedings under their hands within five days to the clerk of the .superior court. When the husband dies seized and pos- sessed of lands in any other count.y than that in which dower is to be assigned, the clerk of the superior court of the county in which dower is to be assigned shall, u]ion application of the widow entitled to dower issue a commission to the sheriff of such other county requiring him to summons three or more persons, as may be asked in said appli- cation, qualified to act as jurors, to go upon the lands of said husband in the county of said sheriff and assess the value of the same after being duly sworn by the sheriff for that purpose, and re]i(irt their as- 3089 WIDOWS— 77/. Dower Allotted. Cli. 78 sessment under their bauds and seals through the sheriff, who shall countersigTi the same as their report to the clerk issuing said com- mission ; and said report in the hands of the jury summoned to assign the dower shall be considered by them a true valuation of the lands mentioned in the repoi't, and said last-mentioned jury shall be deemed to have met on the lands thus assessed and shall assign the dower accordingly. Code, s. 2113; 1893, c. 314; 18G8-9, c. 93, s. 42. 3090. Notice to parties of meeting of jury. The parties to such jjrocecding, or their attoimeys, if within the county, shall be notified of the time and place of meeting of the jury appointed to assign dower, at least five days before the meeting. Code, s. 2114; 1868-9, c. 93, s. 43. Note. For allotment in proceeds of sale for partition, see ss. 2508, 2517. IV. Year's Support. 3091. Who entitled. Every widow of an intestate, or of a testa- tor from whose will she has dissented, shall be entitled, besides her distributive share in her husband's personal estate, to an allowance therefrom, for the support of herself and her family for one year after his decease, and said allowance shall be exempt from any lien, by judgment or execution, acquired against the property of her said husband: Provided, if any married woman shall commit adul- tery, and shall not be living with her husband at his death, or shall be convicted of the murder of her husband, or of being accessory before the fact to the murder of her husband, she shall thereby lose all right to a year's provision, and to a distributive share from the personal property of her husband, and such adultery or convic- tion may be pleaded in bar of any action or proceeding for the recovery of such rights and estates. Code, s. 2116; 1889, c. 499, s. 2; 1868-9, c. 93, s. 81; 1871-2, c. 193, s. 44; ] 880, c. 42. 3092. Value. Except in cases in which a larger allowance is hereinafter provided for, the value of a year's allowance shall be three hundred dollars, and one hundred dollars in addition thereto for every member of the family besides the widow. Code, s. 2118; 1868-0, e. 93, s. 10. 3093. Family defined. The family of the deceased, for the pur- poses of this chapter, shall be deemed to be, besides the widow, every child, either of the deceased or of the widow, and every other per- son to whom the deceased or widow stood in place of a parent, who Rev. Vol. 1—55 929 3093 WIDOWS— /T'. Year's Support. Ch. 78 was residing with the deceased at his death, and whose age did not then exceed fifteen years. Code, s. 2110; 1SG8-9, c. 93, s. 11. 3094. If no widow, children entitled. If a man die intestate leaving no widow surviving him, or if his widow die before her year's allowance is assigned her, then there shall be assigned to every other member of the family, as in this chapter defined, the sum of one hundred dollars each, which shall be turned over imme- diately to the guardian and used by him in the care and education of the members of the family, respectively; and if there be no guard- ian, it shall be received and disbursed by the clerk of the superior court for their benefit. 1889, e. 496. 3095. From what assigned. Such allowance shall be assigned from the crop, stock and jjrovisions of the deceased in his possession, at the time of his death, if there be a sufficiency thereof in value; aud if there be a deficiency, it shall be made up by the personal representative from the personal estate of the deceased. Code, s. 2117; 1868-9, c. 93, s. 9. V. Year's Suppokt Assigned. 3096. Personal representative shall assign. It shall be the duty of every administrator, collector, or executor of a will, from which the widow of a testator has dissented, on application in writing, signed by the widow of such intestate or testator, at any time within one year after the decease of the husbaud, to assign to her a year's allowance in the manner prescribed in this chapter, to the value herein prescribed, deducting therefrom the value of any articles consumed by the widow and her family since the death of her hus- band to the time of the assignment. If there be no widow, or if she should die before the year's provision is assigned, the personal representative shall assign one hundred dollars to every other mem- ber of the family as defined in this chapter; but if there be no per- sonal representative it shall be assigned by a justice of the peace, ujion the ai^plication of the guardian or next friend of the children entitled. Code, 8. 2120; 1889, c. 496; 1868-9, c. 93, s. 12. 3097. Value ascertained. The value of stock, crop and provis- ions assigned to tlie widow, as well as that of the articles consumed, shall be ascertained by a justice of the peace and two ]icrsons quali- fied to act as jurors of the county in which administration was granted or the will proved. Code, s. 2121; 1868-9, e. 93, s. 13. 930 3098 WIDOWS— 7. Year's Support Assigned. Ch. 78 3098. Procedure to assign. Upon the application of the widow, the personal representative of the deceased shall apply to a justice of the peace of the township in which the deceased resided, or some adjoining township, to summon two persons qualified to act as jurors, who, having been sworn by the justice to act impartially, shall, with him, ascertain the number of the family of the deceased according to the definition given in this chapter, and examine his stock, crop and provisions on hand, and assign to the widow so much thereof as M-ill not exceed the value limited in this chapter, subject to the deduction prescribed in this chapter: Provided, that in case there shall be no administration upon said estate, or in the event that the personal representative shall fail or refuse to apply to a justice of the peace as aforesaid for the space of ten days after the widow shall have filed with him the application as aforesaid, or if the widow shall be the personal representative, she may make the appli- cation, and it shall be the duty of the justice to proceed in the same manner as though the application had been made by the personal representative: Provided further, that in all cases, if there be no crop, stock or provisions on hand, or not a sufficient amount, the commissioners may allot to the widow any articles of personal prop- erty of the deceased, and also any debt or debts known to be due him, and such allotment shall vest in the widow said property, and the right to collect the debts thus allotted: Provided further, that where the widow and personal effects of the deceased husband shall have been removed from the township or county where deceased hus- band resided before his death, the said widow may apply to any justice of the peace of any township or county where such personal property is located, and it shall be the duty of such justice to allot and assigTL the year's allowance as if the husband had resided and died in that township. Code, s. 2122; 1891, c. 13; 1899, c. 531; 1870-1, e. 263. 3099. Duty of commissioners. The commissioners shall make and sign three lists of the articles assigTied to the widow, stating the quantity and value of each, the number in the family, and the deficiency to be paid by the personal I'epresentative. One of these lists shall be delivered to the widow, one to the personal represen- tative and one returned by the justice, within twenty days after the assignment to the superior court of the county, and the clerk shall file and record the same and enter judgment against the per- sonal representative, to be paid when assets ■ shall come into his hands, for any residue found in favor of the widow. Code, s. 2123; 1868-9, c. 93, s. 15. 3100. Appeal. The personal representative, or the widow, or in- fant by his guardian or next friend, or any creditor, legatee or dis- 931 3100 WIDOWS— T. Year's Support Assigned. Ch. 78 tributee of the deceased, may appeal from the finding of the commis- sioners to the superior court of the county, and, within ten days after the assignment, cite the adverse party to aj^pear before such court on a certain day, not less than five nor exceeding ten days after the service of the citation. Code, s. 2124; 1897, c. 442; 1868-9, c. 93, s. 10. 3101. Duty of appellant. At or before the day named, the appel- lant shall file with the clerk a copy of the assignment and a state- ment of his exceptions thereto, and the issues thereby raised shall be decided as other issues are directed to be. When the issues shall have been decided, judgment shall be entered accordingly, if it may be without injustice, without remitting the proceedings to the com- missioners. Code, s. 2125; 1868-9, e. 93, s. 17. 3102. Allowance to widow a credit to personal representative. Upon the settlement of the accounts of the personal representative, he shall be credited with the articles assigned, and the value of the deficiency assessed as aforesaid, if the same shall have been paid, unless the allowance be impeached for fraud or gross negligence in him. Code, s. 2126; 1868-9, e. 93. s. 18. VI. Increased Allowance. 3103. When allowance in full, if the estate of a deceased be insolvent, or if his personal estate does not exceed two thousand dol- lars, the allowance for the year's support of his widow and her family shall not, in any case, exceed the value prescribed above; and the allowance made to her as above prescribed shall preclude her from any further allowance. Code, s. 2127; 1868-9, c. 93, s. 19. 3104. Assigned on application to superior court. It shall not, however, be obligatory on a widow to have her support assigned as above prescribed. Without applying to the personal representative of her deceased husband, she may, at any time within one year after the death of her husband, apply to the superior court of the county in which the will was proved, or administration granted, to have a year's support for herself and her family assigned to her. Code, s. 2128; 1868-9, c. 93, s. 20. 3105. Proceeding; parties. The application shall be by sum- mons, as is prescribed for sjiccial proceedings, in whicli the personal representative of the deceased, if there be one other than the plain- 3105 WIDOWS— F/. Increased Allowance. Ch. 78 tiff, the largest known ci'editor, or legatee, or some distributee of the deceased, living in the county, shall be made defendant, and the proceedings shall be as prescribed for siiecial proceedings be- tween parties. Code, s. 2129; 1868-9, c. 93, s. 21. 3106. Complaint. In her complaint the widow- shall set forth, be- •si(k's the facts entitling her to a year's support and the value thereof, as claimed by her, the further facts that the estate of the deceased is not insolvent, and that the personal estate of which he died pos- sessed exceeded two thousand dollars, and also whether or not she had an allowance made her, and the nature and value thereof; and if no allowance has been made, the quantities and values of the articles consumed by her and her family since the death of her hus- band. Code, s. 2130; 1868-9, c. 93, s. 22. 3107. Judgment, if the material allegations of the complaint be found true, the judgment shall be that she is entitled to the relief sought; and the court shall thereupon issue an order to the sheriff or other jjroper officer of the county, commanding him to summon a justice of the peace and two indifferent persons qualified to act as jurors of the county, to assign to the plaintiff from the crop, stock and provisions of the deceased, a sufficiency for the support of herself and her family, for one year from the death of her hus- band ; and if there be a deficiency thereof, to assess such deficiency, to be paid by the personal representative from the personal assets of the deceased, deducting, nevertheless, in all cases from such allow- ance the articles, or the value thereof, consumed by the widow and her family before such assignment, and also any sum previously assigned her. Code, s. 2131; 1868-9, c. 93, s. 23. 3108. Duty of commissioners; report. The said conmiissioners shall be sworn by the justice and shall proceed as prescribed in this chapter, except that the}' may assign to the widow a value sufficient for the support of herself and her family according to the estate and condition of her husband and without regard to the limitation aforesaid in this chapter; but the value allowed shall not in any case exceed the one-half of the annual net income of the deceased for three years next preceding his death. Their report shall be returned by the justice to the court. Code, s. 2132; 1868-9, c. 93, s. 24. 3109. Exceptions by interested persons. The personal repre- sentative, or any creditor, distributee or legatee of the deceased. 3109 WIDOWS— TY. Increased Allowance. Ch. 78 within twenty days after the return of the report, may file excep- tions thereto. The phiintiff shall be notified thereof and cited to appear before the court on a certain day, within twenty, and not less than ten days after service of the notice, and answer the same, the case shall thereafter be proceeded in, heard and decided as provided in special proceedings between parties. Code, s. 2133; 1868-9, c. 93, s. 25. 3110. Confirmation; execution; costs. If the report shall be confirmed, the court shall so declare, and execution shall issue to enforce the judgment as in like cases. Code, s. 2134; 1868-9, c. 93, s. 26. CHAPTEE 79. WILLS. Sections. I. Execution, 3111—3114 II. Revocation, 3115—3118 III. Witnesses, 3119—3121 IV. Probate, 3122—3134 V. Caveat, .3135—3137 VI. Construction, 3138—3146 I. Execution. 3111. Age of testators. No person shall be capable of disposing of real or personal estate by will, until he shall have attained the age of twenty-one years. Code, s. 2137; JR. C, c. 119, s. 2; 1811, c. 280. 3112. IVIarried woman. A married woman owning real or per- sonal property may dispose of the same by will. Code, s. 2138; R. C, c. 119, s. 3; 1844, c. 88, s. 8. 3113. How executed. No last will or testament shall be good or sufficient, in law, to convey or give any estate, real or personal, unless such lust will shall have been written in the testator's life- time, and signed by him, or by some other person in his presence and by his direction, and subscribed in his ])resence by two witnesses at least, no one of whom shall be interested in the devise or bequest of the said estate, except as hereinafter provided ; or, unless such last will and testament be found among the valuable papers and 934 3113 WILLS— 7. Execution. Ch. 79 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 hand- writing of such deceased person, with his name subscribed thereto, or inserted in some part of such will ; and if such handwriting shall be proved, by three credible witnesses, who verily believe such will and every part thereof is in the handwriting of the person whose will it appears to be, then such will shall be sufficient to give and convey real and personal estate. Code, s. 2136; R. C, c. 119, s. 1; 1784, c. 204, s. 11; 1784, c. 225, s. 5; 1840, c. 62 ; 1846, c. 54. 3114. Execution of appointments by. No appointment, made by will in exercise of any power, shall be valid, unless the same be executed in the manner by law required for the execution of wills; and every will, executed in such manner, shall, so far as respects the execution and attestation thereof, be a valid execution of a power of appointment by will, notwithstanding it shall have been expressly required that a will made in exercise of such power should be exe- cuted with some additional or other form of execution or solemnity. Code, s. 2139; R. C, e. 119, s. 4; 1844, c. 88, s. 9. II. Revocation. 3115. How written will revoked. No will or testament in writ- ing, or any clause thereof, shall be revocable, otherwise than by some other will or codicil in writing, or other writing declaring the same, or by burning, canceling, tearing, or obliterating the same, by the testator himself, or in his presence and by his direction and consent; but all wills or testaments shall remain and continue in force, until the same be burnt, canceled, torn, or obliterated by the testator, or in his presence and by his consent and direction ; or unless the same be altered or revoked by some other will or codicil in writing, or other writing of the testator, signed by him, or some other per- son in his presence and by his direction, and subscribed in his presence by two witnesses at least; or unless the same be altered or i-evoked by some other will or codicil in writing, or other writing of the testator, all of which shall be in the handwriting of the tes- tator, and his name subscribed thereto or inserted therein, and lodged by him with some person for safe-keeping, 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 he in the handwriting of the testator, by three witnesses at least. Code, s. 2176; R. C, c. 119, s. 22; 1784, e. 204, s. 14; 1819, c. 1004, ss. 1, 2; 1840, c. 62. 3116 WILLS—//. Revocaiion. Ch. 79 3116. Revoked by marriage; exception. All wills shall be re- voked by subsequent marriage of the maker except a will made in exercise of a j^ower of appointment, when the real or personal estate thereby apjjointed would not, in default of such a])])ointment, pass to his heirs, executor or administrator, or the person entitled as his next of kin, under the statute of distributions. CoJe, s. 2177; R. C, c. 119, s. 23; 1S44, c. 88, s. 10. 3117. Not revoked by altered circumstances. Xo will shall be revoked by any presumption of an intention on the ground of an alteration in circumstances. Code, s. 217S; U. C, c. 119, s. 24; 1844, c. 88. s. 11. 3118. Conveyance after execution does not. Xo conveyance or other act made or done subsequently to the execution of a will of, or relating to any real or personal estate therein comprised, except an act by Avhich siich will shall be duly revoked, shall prevent the operation of the will with respect to any estate or interest in such real or personal estate as the testator shall have power to dispose of, by will at the time of his death. Code, s. 2179: i\. C, c. 119, s. 25; 1844, c. 88, s. 2. III. Witnesses. 3119. Executors competent. No person, on account of being an executor of a will, shall be incompetent to be admitted a witness to prove the execution of such will, or to jirove the validity or invalidity thereof. Code, s. 2140; R. C, c. 119. s. 9. 3120. Devise. If any person shall attest the execution of any will, to whom or to whose wife or husband any beneficial devise, estate, interest, legacy, or appointment of or affecting any real or personal estate shall be thereby given or made, such devi.se, estate, interest, legacy, or appointment shall, so far only as concerns such person attesting the execution of such will or the wife or husband of such person, or any person claiming imder such ])crson, or wife or husband, be void ; and such person so attesting shall be admitted as a witness to prove the execution of such will, or tlio N'alidity or inva- lidity thereof. Code, s. 2147; R. C, c. 110, s. 10. 3121. Witness dead, affidavits evidence, when, wiienevcr the .subscriliiug witness to any will sliall die, or be absent beyond the state, it shall be competent upon any issue of devisavit vel non, to give in evidence the affidavits and proofs taken by the clerk upon 3121 WILLS—///. Witnesses. Ch. 79 admitting the will to probate in common form, and such affidavit and proceedings before the clerk shall be prima facie evidence of the due and legal execution of said will. 1899, c. 680, s. 2. IV. Probate. 3122. Executor may apply for. Any executor named in a will may, at any time after the death of the testator, apply to the clerk of the superior court, having jurisdiction, to have the same admitted to probate. Code, 3. 2151 ; C. C. P., s. 439. 3123. Executor failing, who may apply. If no executor apply to have the will proved within sixty days after the death of the testator, any devisee or legatee named in the will, or any other per- son interested in the estate, may make such application, upon ten days' notice thereof to the executor. Code, s. 2152; C. C. P., s. 440. 3124. Production of will for, compelled. Every clerk of the supe- rior court having jurisdiction, on application by affidavit setting forth the facts, shall, by summons, compel any person in the state, having in possession the last will of any decedent, to exhibit the same in his court for probate ; and whoever being duly summoned refuses, in contempt of the court, to produce such will, or (the same having been parted with by him) refuses to inform the court on oath where such will is, or in what manner he has disposed of it, shall, by order of the clerk of the superior court, be committed to the jail of the county, there to remain without bail till such will be pro- duced or accounted for, and due submission made for the contempt. Code, s. 2154; C. C. P., s. 442. 3125. What shown on application. On application to the clerk of the superior court, he must ascertain by affidavit of the applicant : 1. That such applicant is the executor, devisee or legatee named in the will, or is some other person interested in the estate, and how so interested. 2. The value and nature of the testator's property, as near as can be ascertained. 3. The names and residences of all parties entitled to the testa- tor's property, if known, or that the same on diligent inquiry can not be discovered ; which of said parties in interest are minors, and whether with or without guardians, and the names and residences of such guardians, if known. Such affidavit shall be recorded with 3125 WILLS— 7T'. Probate. Ch. 79 the will and the certificate of probate thereof, if the same is admitted to probate. Code, s. 2153; C. C. P., s. 441. 3126. Proof and examination in writing. Every clerk of the su- perior court shall take in writing the proofs and examinations of the witnesses touching the execution of a will, and he shall embody the substance of such proofs and examinations, in case the will is admitted to probate, in his certificate of the probate thereof, which certificate must be recorded M'ith the will. The proofs and examina- tions as taken must be filed in the office. Code, s. 2149; C. C. P., s. 437. 3127. How admitted to probate. Wills and testaments must be admitted to probate onlj in the following manner : 1. In case of a written will, with witnesses, on the oath of at least two of the subscribing witnesses, if living; but when any one or more of the subscribing witnesses to such will are dead, or reside out of the state, or can not after duo diligence be found within the state, or are insane or otherwise incompetent to testify, then sucli proof may be taken of the handwriting, both of the testator and of the witness or witnesses so dead, absent, insane or incompetent, and also of such other circumstances as will satisfy the clerk of the superior court of the genuineness and the due execution of such will. In all cases where the testator executed the will by making his mark, and where any one or more of the subscribing witnesses are dead or reside out of the state, or are insane or otherwise incompetent to tes- tify, it shall not be necessary to prove the handwriting of the testator, but proof of the handwriting of the subscribing witness or witnesses so dead, absent, insane or incompetent shall be sufficient. The pro- bate of all wills heretofore taken in compliance with the require- ments of this section are hereby declared to be valid. 2. In case of a hologi-aph M'ill, on the oath of at least three credi- ble witnesses, who state that they verily believe such will and every part thereof is in the handwriting of the person Avhose will it pur- ports to be, and whose name must be subscribed thereto, or inserted in some part thereof. It must further appear on the oath of some one of said witnesses, or of some other credible person, that such will was found among the valuable papers and efi^ects of the decedent, or was lodged in the hands of some person for safe-keeping. 3. In case of a nuncupative will, on the oath of at least two credi- ble witnesses present at the making thereof, who state that they were specially required to bear witness thereto by the testator himself. It must also be proved that such nuncupative will was made in the testator's last sickness, in his own habitation, or where he had been 3127 WILLS— ZF. Probate. Ch. 79 previously resident for at least ten days, unless he died on a journey or from home. No nuncupative will shall be proved by the wit- nesses after six months from the making thereof, unless it was put in writing within ten days from such making ; nor shall it be proved till a citation has been first issued or publication been made for six weeks in some newspaper published in the state, to call in the widow and next of kin to contest such will if they think proper. Code, s. 2148; 1893, c. 269; 1901, c. 276; C. C. P., s. 435. 3128. How far probate conclusive. Such record and probate is conclusive in evidence of the validity of the will, imtil it is vacated on appeal or declared void by a competent tribunal. Code, s. 2150; C. C. P., s. 438. 3129. Wills filed in clerk's office. All original wills shall remain in the clerk's ofiice, among the records of the court, where the same shall be proved, and to the said wills any person may have access, as to the other records. Code, s. 2173; R. C, c. 119, s. 19; 1777, c. 115, s. 59. 3130. Certified copy of will proved in another state. When a will, made by a citizen of this state, is proved and allowed in some other state or country, and the original will can not be removed from its place of legal deposit in such other state or country, for probate in this state, the clerk of the superior court of the county where the testator had his last usual residence or has any property, upon a duly certified copy or exemplification of such will being exhibited to him for probate, shall take every order and proceeding for proving, allowing and recording said copy as by law might be taken upon the production of the original. Code, s. 2157; C. C. P., s. 445; E. C, e. 44, s. 9; 1802, e. 623. Note. See s. 1619. 3131. Made out of state, how proven. Whenever it is suggested to the clerk of the superior court, b}' affidavit or otherwise, that a will has been made without the state, or that a will has been made in the state, and the witnesses thereto have moved out of the state, disposing of or charging land or other property within the state, the clerk of the superior court of the county where the property is situ- ated may issue a commission to such person as he may select, author- izing the commissioner to take the examination of such witnesses as may be produced, touching the execution thereof, and upon return of such commission, with the examination, he may adjudge the said will to be dul}' proved or otherwise, as in cases on the oral examin- ation of witnesses before him, and if duly proved, such will shall be recorded. Code, s. 2155; 1899, c. 55; C. C. P., s. 443. 3132 WILLS— 7F. Prolate. Ch. 79 3132. Where witnesses reside in different county, how proven. When a will is offered for probate in one eo\uity (il' this state and the witnesses reside in another county, the elerk nt' the court be- fore Avhom such will is offered shall have power and authority to issue a subpoena for said witnesses requiring them to appear before him and jirove said will ; and said clerk shall likewise have power and authority to issue a commission to take the deposition of said witnesses when they reside more than seventy-five miles from the place where the will is to be probated, such deposition and commission to be returned and the clerk to adjudge the will to be duly proven. 1899, c. 55. 3133. Nonresident's will, recorded; proof. Whenever any will made by a citizen or subject (if any other state or country is duly I^roved and allowed in sucli state or country according to the laws thereof, a copy or exemplification of such will, duly certified and authenticated by the clerk of the court in which such will has been proved and allowed, if within the LTnitcd States, or by any ambassa- dor, minister, consul or commercial agent of the United States under his official seal when produced or exhibited before the clerk of the superior court of any county wherein any property of the testator may be, shall be allowed, filed and recorded in the same maimer as if the original and not the copy had been produced, proved and allowed before siich clerk. But when any will contains any devise or disposition of real estate in this state, such devise or disposition shall not have any validity or operation, unless the will is executed according to the laws of this state ; and that fact must appear affirma- tively in the certified probate or exemplification of the will ; and if it do not so appear, the clerk before whom the copy is exhibited shall have poAver to issue a commission for taking proofs, touching the execution of the Avill, as prescribed in the preceding section; and the same may be adjudged duly proA'ed, and shall be recorded as herein provided. Code, s. 2156; 1885, c. 393; C. C. P., s. 444; 1883, c. 144. 3134. Probates validated. In all cases of the prolmte of any will heretofore made in common form before any clerk of the superior courts of this state, where the testimony of the subscribing witnesses has been taken in the state or out of it by any commissioner ap- pointed by said clerk or taken by any other clerk of the superior court in any other county of this state, and the will admitted to probate upon such testimony, the proceedings arc validated. 1899, c. 680. 3135 WILLS— y. Caveat. Ch. 79 V. Caveat. 3135. When and how filed. At the time of application for the probate of any will, or at any time thereafter, as prescribed by law, any person entitled under such will or interested in the estate may appear in person or by attorney before the clerk of the superior court, and enter a caveat to the probate of such will. Code, s. 2158; C. C. P., s. 446. 3136. Cause transferred to trial doclv reriiiiiiizaiices the ])rosi'cut(.ir ami all the material wit- nesses against snch jirisoner to appear and testify at the next term of the court having jurisdiction for the countv in which the offense is alleged to have been committed. Code, s. 1152; 1868-9, c. 178, subc. 3, s. 21. 3204. Witnesses required to give security for appearance. Whenever siieh magistrate shall be satistied l)y the ])rcinf that there is good reason to believe that any snch witness will not fulfill the conditions of such recognizance unless security be required, he may order such witness to enter into a recognizance with such sureties as he shall deem meet for his appearance at such court. Code, s. 1154; 18G8-9, c. 178, subc. 3, s. 23. 3205. Examinations and recognizances certified to court. All examinations and recognizances taken pursuant to the provisions of this chapter shall be certified by the magistrate taking the same to the court at which the witnesses are bound to a])i!ear, on the first day of the sitting thereof; and the examinations taken and subscribed as herein prescribed may be used as evidence before the grand jury, and on the trial of the accused, provided he was present at the taking thereof and had an opportunity to hear the same and to cross-examine the deposing witness, if such witness be dead or so ill as not to be able to travel, or by procurement or connivance of the defendant hath removed from the state, or is of unsound mind. Code, s. 1157; 1868-9, c. 178, subc. 3, s. 26. 3206. Penalty for failing to return. If any magistrate shall re- fuse or neglect to return to the proper court any such examination or recognizance by him taken, he may be compelled by rule of court forthwith to return the same, and in case of disobedience of such rule, may be proceeded against by attachment as for contempt of court as provided by law. Code, s. 1158; 1868-9, c. 178, subc. 3, s. 27. Note. For lisbt of prisoner to testify in his own behalf, see Evidence, ss. 1634, 1635. VIII. Bail. 3207. When bail allowed. If the offense charged in the warrant be not punishable with death, such magistrate may take from the person so arrested a recognizance with sufficient stircties for his appearance at the next term of the court having jttrisdiction, to be held in the county where the offense shall be alleged to have been committed. Code, s. 1139; 1868-9, e. 178, subc. 3, s. 8; 1871-2. e. 37, s. 1. 0.38 3208 CRIMINAL PROCED.— T/Z7. Bail. Ch. 80 3208. Sheriff or deputy may take; not to become. When any slieritf or his deputy shall arrest the body of any person, in con- sequence of the writ of capias issued to him by the clerk of a court of record on an indictment found, the said sheriff or dej^uty, if the crime is bailable, shall recognize the offender, and take sufiicient bail in the nature of a recognizance for his appearing at the next succeeding court of the county where he ought to answer, which recognizance shall be returned with the capias; and the sheriff shall in no case become bail himself. Code, s. 1180; E. C, e. 35, s. 11; 1797, c. 474, s. 4. 3209. Who may take, before imprisonment. Officers before whom persons charged with crime, but who have not been committed to prison by an authorized magistrate, shall be brought, shall have jiower to take bail as follows : 1. Any justice of the supreme court, or a judge of a superior court, in all cases. 2. Any justice of the peace or chief magistrate of any incorpo- rated city or to\^^l, in all cases of misdemeanor, and in all cases of felony not capital. Code, s. 1160; 1868-9, c. 178, subc. 3, s. 29; 1871-2, c. 37. 3210. Who may take, after imprisonment. Any justice of the supreme court or any judge of a superior court shall have power to bail persons committed to prison charged with crime in all cases; any jiistice of the peace or chief magistrate of any incorporated city or town shall have the same power, in all cases where the punish- ment is not capital. Code, s. 1161; 1868-9, c. 178, subc. 3, s. 30. 3211. Recognizance to be filed with clerk. Whenever any pris- cnuT shall be bailed by any officer under the preceding section, such officer shall immediately cause the recognizance taken by him to be filed with the clerk of the superior court of the county to which the ]5risoner is recognized. Code, s. 1162; 1868-9, e. 178, subc. 3, s. 31. 3212. Duty of magistrate granting bail. Any magistrate taking bail shall certify on the warrant the fact of his having let the defendant to bail, and shall deliver the same, together with the recognizance taken by him, to the officer or other person having charge of the prisoner, who shall deliver the same without unnec- essary delay to the clerk of the court. in which such prisoner shall have been recognized to appear. Code, s. 1140; 1868-9, c. 178, subc. 3, s. 9. 3213 CRIMINAL PROCED.— T7/7. Bail Ch. SO 3213. Bail OH continuance before justice. Upon the continuance of any criminal actinn returneil before any justice of the peace for trial in which the said justice would be authorized to take bail on a finding of probable cause, or in which action he would have final jurisdiction, it shall be the duty of said justice of the peace, and he is hereby authorized and directed, to take such bond payable to the state of Xortli Carolina, on the same being tendered by the accused, with such security as in his opinion will be sufficient to inspire the appearance of the accused before him for trial at the time and place (which shall be mentioned in said bond) set for the trial. 1889, c. 133, s. 1. Note. For mortgage in lieu of personal security, see ss. 266, 267. IX. FoKFEiTED Bail. 3214. Proceedings on recognizances to Iceep the peace. Every person who shall have entered into a recognizance to keep the peace shall appear according to the obligation thereof; and if he fail to appear, the court shall forfeit his recognizance and order it to be prosecuted, in the manner provided by law, unless reasonable excuse for his default be given. Code, s. 1225; 1868-9, c. 178, subc. 2, s. 10. 3215. Recognizance, when deemed broken. No recognizance taken under this chapter shall be deemed to bo broken except in the failure of the principal in such recognizance to appear and answer according to the obligation thereof, unless such principal be con- victed of some offense amounting in judgment of law to a broach of such recognizance. Code, s. 1227; 1868-9, c. 178, subc. 2, s. 12. 3216. When recognizance prosecuted. Whenever evidence of such conviction shall be produced in the court in which the recogni- zance is filed, it shall be the duty of such court to order the recogni- zance to be prosecuted, and the solicitor shall cause the proper pro- ceedings to be thereupon taken. Code, s. 1228; 1868-9, c. 178, subc. 2, s. 13. 3217. Execution on judgment nisi not to issue before notice. No execution shall issue u|)on a forfeited recognizance, or to collect a fine impo.sed nisi, until a notice has issued against the person who has forfeited his recognizance or upon whom the fine has been im- posed, and his sureties. Code, s. 1208; R. C, c. 35, s. 43; 1777, c. 115, s. 48. 3218 CTJIMIXAL PROCED.— 7A'. Forfeited Bail Ch. SO 3218. What notice to contain. When any recognizance, acknowl- edged bv a principal and sureties, shall be forfeited by two or more of the recognizers, the notice issued thereon shall be jointly against them all, designating which of them are principals and which sure- ties, and when they are bound in different sums, stating the amount forfeited by each one, and the clerk shall have no greater fee on such notice than is due when it is issued against one defendant. Code, s. 1209; R. C, c. 35, s. 44; 1812, c. 836, s. 1. 3219. How notices executed. All notices issuing upon forfeited recognizances shall be executed by leaving a copy with each of the defendants, or at his present place of abode. And in case he can not be found, and has no known place of abode, and the matter be returned, then a notice shall issue, and on the like return the same shall be deemed duly served. Code, s. 1210; K. C, e. 35, s. 45; 1812, c. 836, s. 2. 3220. Judges may remit forfeited recognizances. The judges of the superior courts may hear and determine the petition of all persons, who shall conceive they merit relief on their recognizances forfeited ; and may lessen, or absolutely remit, the same, and do all and anything therein as they shall deem just and right and con- sistent with the welfare of the state and the persons praying siich relief, as well before as after final judgment entered and execution awarded. Code, s. 120.); R. C, c. 35, s. 38; 1788. e. 292. s. 1. 3221. Clerk to refund, when. The clerk of the superior court, on the reuiission of auy forfeited recognizance which has been paid into his office, shall refund the same, or so much thereof as shall be re- mitted. Code. s. 1206; R. C, c. 35, s. 39; 1795, c. 442. s. 1. 3222. Treasurer to refund, when. If the money has been paid to the county treasurer, he shall refund it to the person entitled, on his producing an attested copy of the record from the clerk of the court, certifying that such recognizance hath been remitted or les- sened, signed with his own proper name, with the seal of the court affixed thereto. Code, s. 1207; R. C, c. 35, s. 40; 1795, c. 442, s. 2. 3223. Upon failure to appear before justice, judgment nisi; no- tice to sureties. On the failure of the accused to appear at the time and place mentioned in any bond taken by any justice of the peace for a continuance of any cause pending before him, and answer the charge, or, having appeared, shall depart the coi:rt without leave Rev. Vol. 1—57 961 3223 CRIMINAL PROCED.— 7X. Forfeited Bail. Ch. SO thereof first had and obtained, it shall be the duty of the said justice of the peace then presiding to enter judgment nisi against the principal and his sureties in said bond for the amount mentioned therein : Provided, the sum does not exceed the sum of two hundred dollars ; and immediately issue notice to the principal and the sure- ties in said bond, giving ten days' time, specifying time and jdace. to appear and show cause, if any they have, why the said judgment nisi shall not be made final. 1889, c. 133, s. 2. 3224. Judgment final, when rendered. If the defendant shall fail to appear and show satisfactory reasons for not complying with the provisions of said bond, it shall then be the duty of the justice of the peace to render a final judgment thereon for the amount of the same, and immediately make and transmit to the clerk of the superior court a transcript thereof, which shall be entered u])on the judgment docket of said court, and the clerk shall issue execution on said final judgment against the principal and his sureties for the collection of the amount thereof as in other judgments in behalf of the state. 18S9, c. 133, s. 3. 3225. When bond exceeds two hundred dollars, procedure. If the bond aforesaid shall exceed the sum of two hundred dollars, and the accused shall fail to appear as therein provided to answer the charge, or, having aj^peared, shall depart the court without leave first had and obtained, it shall be the duty of the said justice to have the accused called, and enter upon the bond that the defendant was called and failed to answer, and immediately return the origi- nal papers in the case, together Avitli the bond, to the clerk of the court having jurisdiction to try such action, wdio shall immediately enter the case upon the criminal docket of his court and enter judg- ment nisi for the amount of the said bond, and issue notice to the accused and his sureties to appear at the next term of said court to show cause why said judg-ment should not be made final and pro- ceeded in as other cases of forfeited bonds in behalf of the state in said co\irt. The entry on said bond by the justice of the peace shall be prima facie evidence that the principal therein had been called and failed to answer. Nothing in this section shall be so construed as to prevent jiistices of the peace from remitting the penalty of the bond or the right of appeal from the justice of the peace to the superior court by the defendant or his surety. 188!), V. 133, s. 4. 3226. Bail may arrest and surrender principal; effect on lia- bility. The bail shall have liberty, at any time before execution 3226 CRIMINAL PEGGED.— 7Z. Forfeited Bail. Gh. 80 awarded against him, to surrender to the court from which the process issued, or to the sheriff having such process to return, during the session, or in the recess of such court, the principal, in dis- charge of himself; and such bail shall, at any time before such exe- cution awarded, have fiill 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 or court as aforesaid ; and the sheriff is hereby required to receive such surrender, and hold the body of the defendant in custody, as if bail had never been given : Provided, that in criminal proceedings, the surrender by the bail, after the recogTiizance forfeited, shall not have the effect to discharge the bail, but the forfeiture may be remitted in the manner provided for. Code, s. 12.'30; R. C._, c. 11, s. 5; 1777, c. 115, s. 20; 1848, e. 7. 3227. Person surrendered may give bail; sheriff Iial3le for re- lease. Any person surrendered in the manner specified in the pre- ceding section, shall have liberty, at any time, before final judgment against him, to give bail ; and in case of such surrender, the sheriff shall take the bail bond or recognizance to the succeeding court ; and in case the sheriff shall release such person without bail, or the bail returned be held insufiicient, on exception taken the same term to which such bail bond shall be returned, and allowed by the court, the sheriff, having due notice thereof in criminal cases, shall forfeit to the state the sum of one hundred dollars, to be recovered on mo- tion in like manner as forfeitures for not returning process, and be subject to be indicted for misdemeanor in ofiice ; and it shall be the duty of the prosecuting ofiicer to collect the forfeiture ; and, in case of a release, the sheriff' shall be liable for an escape, and may be prosecuted and pimished as provided for in the chapter entitled Crimes. Code, s. 1231; R. C, e. 11, s. 6; 1827, c. 40. 3228. Sheriff may take bail of prisoner in custody. If any per- son for want of bail shall be lawfully committed to jail at any time before final judgment, the sheriff, or other officer having him in custody, may take sufficient justified bail and discharge him ; and the bail bond shall be regarded, in every respect, as other bail bonds, and shall be returned and sued on in like manner; and the oflicer taking it shall make special return thereof, with the bond, at the first court which is held after it is taken. Code, s. 1232; R. C, c. 11, s. 8. 3229. IVIay plead any defense principal might. Every matter which would entitle the principal to be discharged from arrest, may be pleaded by the bail in exoneration of his liability. Code, s. 1233; R. C, c. 11, s. 9. 3230 CRIMINAL PROCED.— Z. Commitnient. Ch. 80 X. Commitment. 3230. Must state what. Every eoinmitment to prison of a ]ier- son charged with crime shall state : 1. The name of the person charged. 2. The character of the oifense with which he is charged. 3. The name and oiSce of the magistrate committing him. 4. The manner in which he may be discharged ; if npon giving recognizance or bail, the amount of said recognizance, the condition on the performance of which it shall be discharged, and the persons or magistrate before Avhom the bail may justify. 5. The court before which the prisoner shall be sent for trial. Code, s. 1163; 1868-9, c. 178, subc. 3, s. 32. 3231. To what jail. All persons committed to prison before conviction shall be committed to the jail of the county in which the examination is had, or to that of the county in which the oifense is charged to have been committed: Provided, if the jails of these counties are unsafe, or injurious to the health of prisoners, the committing magistrate may conunit to the jail of any other conven- ient county. And every sheriff or jailer to whose jail any person shall be committed by any court or magistrate of competent jurisdiction, shall receive such prisoner and give a receipt for him, and be bound for his safe-keeping as prescribed by law. Code, s. 1164; 1868-9, c. 178, subc. 2, s. 33. 3232. Of witnesses. If any witness so required to enter into a recognizance, either with or without sureties, shall refuse to com- ply with such order, it shall be the duty of such magistrate to com-' mit him to prison until he shall comply with such order, or be otherwise discharged according to law. Code, s. 1155; 1868-9, c. 178, subc. 3, s. 24. XL Venue. 3233. Lynching. The superior court of any county which adjoins the county in which the crime of lynching shall be committed shall have full and complete jurisdiction over the crime and the offender to the same extent as if the crime had been committed in the bounds of such adjoining county; and whenever the solicitor of the district has information of the commission of such a crime, it shall be his duty to furnish such information to the grand juries of all adjoin- ing counties to the one in which the crime was conunitted from time to time until the offenders are brought to justice. 1893, c. 461, s. 4. 3234 CKIMIlSrAL PEGGED.— X7. Venue. Gh. SO 3234. When crime committed on waters dividing counties. When any offense shall be committed on any water, or water-course, whether at high or low water, which said water or water-course, or the sides or shores thereof, shall divide counties, such offense may be dealt with, inquired of, tried and determined, and punished at the discretion of the court, in either of the two counties which may be nearest to the place where the offense was committed. Code, s. 1193; R. C, c. 35, s. '24. 3235. When assault in one county, death in another. In all cases of felonious homicide, when the assault shall have been made in one county within the state, and the person assaulted shall die in any other county thereof, the offender shall be indicted and pun- ished for the crime in the county wherein the assault was made. Code, s. 1196; R. C. c. 35, s. 27; 1831, c. 22, s. 1. 3236. Assault in this state, death in another. In all cases of felonious homicide, when the assault shall have been made within this state, and the person assaulted shall die without the limits thereof, the offender shall be indicted and punished for the crime in the coimty where the assault was made, in the same manner, to all intents and purposes, as if the person assaulted had died within the limits of this state. Code, s. 1197; R. C, c. 35, s. 28; 1831, c. 22, s. 2. 3237. Person in this state injuring one in another. If any per- son, being in this state, shall unlawfully and wilfully put in motion a force, from the effect of which any person shall be injured while in anotlier state, the person so setting such force in motion shall be guilty of the same offense in this state, as he would be if the effect had taken place within this state. 1895, c. 169. 3238. Death in this state, immaterial where injury inflicted. If a mortal wound is given or other violence or injury intlicted, or poi- son is ailniiuistered on the high sca-< nr land, eitlier within or \\itli- out the limits of this state, by means whereof death ensues in any county thereof, said offense may be prosecuted and punished in the county where the death happens. 1891, p. 6S. 3239. Improper, taken advantage of by plea in abatement; judgment in misdemeanors; trial in felonies. Because the bound- aries of numy counties are either undetermined, or unknown, by reason wliereof high offenses go unpunished; therefore, for the more effectual prosecution of offenses committed on land near the 3239 CRIMIN'AL PEOCED.— X/. Venue. Ch. SO boundaries of counties, in the prosecution of all offenses it shall be deemed and taken as true that the oifense was committed in the county in which by the indictment it is alleged to have taken place, unless the defendant shall deny the same by plea in abate- ment, the truth whereof shall be duly verified on oath or otherwise both as to substance and fact, wherein shall be set forth the proper county in which the supposed offense, if any, was committed ; where- upon the court may, on motion of the state, commit the defendant, who may enter into recognizance, as in other cases, to answer the offense in the county averred by his plea to be the proper county ; and, on his prosecution in that county, it shall be deemed, conclu- sively, to be the proper county. But if the state, upon the plea aforesaid, will join issue, and the matter be found for the defendant, he shall be required to enter into recognizance as in other cases to answer the offense in the county averred by his plea to be the proper county, provided the offense be bailable; and, if not bailable, he shall be committed for trial in the county ; and, if it be found for the state, the court in all offenses or misdemeanors shall proceed to pronounce judgment against the defendant, as upon conviction ; and, in all cases of felony, the defendant shall be at liberty to plead to the indictment, and be tried on his plea of not guilty. Code, s. 1194; R. C, c. 35, s. 25. Note. For venue in larceny and receiving, see Crimes, s. .3507. For venue in beating way on trains, see Crimes, s. 3748. For venue in indictments against railroads for discriminating against A. & N. C. Railroad, see Crimes, s. 3750. XII. Presentment. 3240. No person arrested on presentment, nor tried except on indictment. No person shall be arrested on a presentment of the grand jury, or put on trial before any court, but on indictment found by the grand jury, iinless otherwise provided by law. Code, s. 1175; R. C, c. 35, s. 6; 1797, c. 474, s. 3; 1879, e. 12. Note. See Const., Art. I, ss. 11, 13, 17. 3241. Names of witnesses indorsed on presentment. \\'hen a presentment shall be made of any offense by a grand jury, upon the knowledge of any of their body, or upon the testimony of wit- nesses, the names of such grand jurors and witnesses shall be indorsed thereon. Code, s. 1176; R. C, c. 35, s. 7; 1797, e. 474, s. 2. 3242 CRIMINAL PEOCED.— Z/7/. Indictment. Ch. 80 XIII. Indictment. 3242. Returned by foreman except in capital cases. Grand juries shall return all bills of indictment in open court tlirinigh their acting foreman, except iu capital felonies, when it shall be necessary for the entire grand jury, or a majority of them, to return their bills of indictment in open court in a body. 1889, c. 29. 3243. Substance of proceedings only set forth in. In every indictment, information, or impeachment in which, by the common law, it may be necessary to set forth at length the judicial proceed- ings had in any case then or formerly pending in any court, civil or military, or before any justice of the peace, it shall be sufficient to set forth the substance only of said proceedings, or the substance of such jjart thereof as make, or help to make, the offense prose- cuted. Code, s. 11S4; R. C, c. 35. s. 15. 3244. Bill of particulars. In all indictments when further infor- mation not required to be set out therein is desirable for the better defense of the accused, the court, upon motion, may, in its discretion, require the solicitor to furnish a bill of particulars of such matters. 3245. For homicide. In indictments for murder and manslaugh- ter, it shall not be necessary to allege matter not required to be proved on the trial ; but in the body of the indictment, after naming the person accused, and the county of his residence, the date of the offense, the averment "with force and arms," and the county of the alleged commission of the offense, as is now usual, it shall be suffi- cient in describing murder to allege that the accused person feloni- ously, wilfully, and of his malice aforethought, did kill and murder (naming the person killed), and concluding as is now required by law ; and it shall be sufficient in describing manslaughter to allege that the accused feloniously and wilfully, did kill and slay (naming the person killed), and concluding as aforesaid; and any bill of indictment containing the averments and allegations herein named shall be good and sufficient in law as an indictment for murder or manslaughter, as the case may be. 1887, c. 58. 3246. For perjury. In every indictment for wilful and corrupt perjury, it shall be sufficient to set forth the substance of the offense charged upon the defendant, and by what court, or before Avhom, the oath was taken (averring such court or person to have competent authority to administer the same), together with the proper aver- 3246 CEIMINAL PROCED.— A"///. Indictment. Ch. 80 merits to falsify the matter wherein the perjurv is assigi^ecl, without setting forth the bill, answer, information, indictment, declaration, or any part of any record or proceedings, either in law or equity, other than aforesaid, and without setting forth the commission or authority of the conrt or person before whom the perjury was com- mitted. Code, s. ILSo; It. C, c. 35, s. IG; 1S42, c. 49, s. 1. 3247. For perjury, form of. In indictments for ])L'rjury the fol- lowing form shall be sufficient, to-wit: The jurors for the state, on their oath, present, that A. B.. of county, did unlawfully commit perjury upon the trial of an action in court, in county, wherein was plaintiff and was defend- ant, by falsely asserting, on oath (or solemn affirmation) (here set out the state- ment or statements alleged to be false), knowing the said statement, or state- ments, to be false, or being ignorant whether or not said statement was true. 1889, c. S3. 3248. For subornation of perjury. In every indictment for sub- ornation of perjury, or for corrupt bargaining or contracting with others to commit wilful and corrupt j^erjury, it shall be sufficient to set forth the substance of the offense charged upon the defend- ant, without setting forth the bill, answer, information, indictment, declaration or any part of any record or proceedings, and without setting forth the commission or authority of the court or person before Avhom the ])erjury was committed or was agreorl or jtrnmised to be committed. Code, s. 1180; R. C. c. 35, s. 17; 1842, e. 4!1, s. 2. 3249. When greater punishment for second offense, how for- mer conviction stated, in any indictment for an offense which, on the second conviction thereof, is ptmislied with other or greater pun- ishment than on the first conviction, it shall be sufficient to state that the offender was, at a certain time and place, convicted thereof, without otherwise describing the ])revious offense; and a transcript of the record of the first conviction, duly certified, sliall, u]ion proof of the identity' of the ]ierson of the offender, be sufficient evidence of the first conviction. Code, s. 1187; R. C, e. 35, s. 1,8. 3250. Ownership of property in common; how stated in. In any indictment wherein it shall be necessary to state the ownersliip of any pro]ierty whatsoever, whether real or jiersonal, wliich sliall belong to, or be in the possession of, more than one jicrsoii, wliether such jicrsons be ])artiiers in trade, joint tenants or tenants in common, it shall be sufficient to name one of such persons, and to state such property to belong to the person so named, and another or others, as 968 3250 CEIMINAL PROCED.— XZ/7. Indictment. Ch. SO the case may be; and whenever, in any such indictment, it shall be necessary to mention, for any purpose whatsoever, any partners, joint tenants or tenants in common, it shall be sufficient to describe them in the manner aforesaid ; and this provision shall extend to all joint stock companies and trustees. Code, s. 1188; R. C, c. 35, s. 19. 3251. How money, bank notes, etc., described in. In every indictment in which it shall lie necessary to make any averment as to the larceny of any money, or United States treasury note, or any note of any bank whatsoever, it shall be sufficient to describe such money, or treasury note, or bank note, simply as money, without specifying any particular coin, or treasury note, or bank note ; and such allegation, so far as regards the description of the property, shall be sustained by proof of any amount of coin, or treasury note, or bank note, although the particular species of coin, of which such amount was composed, or the particular nature of the treasury note, or bank note, shall not be proven. Code, s. 1190; 1876-7, c. 68. 3252. For embezzlement. In indictments for embezzlement, ex- cept when the offense shall relate to a chattel, it shall be sufficient to allege the embezzlement to be of money, without specifying any particular coin or valuable security ; and such allegation, so far as regards the description of the property, shall be sustained if the offender shall be proved to have embezzled any amount, although the particular species of coin or valuable security of which such amount was composed shall not be proved. Code, s. 1020; 1871-2, c. 145, s. 2. 3253. Intent to defraud; larceny and receiving. In any case where an intent to defraud is required to constitute the offense of forgery, or any other offense whatever, it shall be sufficient to allege in the indictment an intent to defraud, without naming therein the particular person or body corporate intended to be defrauded ; and on the trial of such indictment, it shall be sufficient, and shall not be deemed a variance, if there appear to be an intent to defraud the United States, or any state, county, city, town, or parish, or body corporate, or any public officer, in his official capacity, or any copart- nership or member thereof, or any particular person. The defend- ant may be charged in the same indictment in several counts witli the separate offenses of receiving stolen goods, knowing them to be stolen, and larceny. Code, s. 1191; R. C. c. 35, ss. 21, 23; 1852, c. 87, s. 2; 1874-5, c. 62. 325i CRIMINAL PROCED.— A7//. Indictment. Ch. SO 3254. Not quashed for informality. Every criminal proceeding by warrant, iiulictiiR'ut, inforniatiiai, (ir iinpeachnient, shall be suffi- cient in form for all intents and ])nr]ioses, if it express the charge against the defendant in a plain, intelligible, and explicit manner; and the same shall not be quashed, nor the judgment thereon stayed, by reason of any informality or refinement, if in the bill or ])ro- ceeding, sufficient matter appears to enable the court to proceed to judgment. Code, s. 11S3; R. C, c. 35, s. 14; 37 Ilin. Vlll., c. 8: 1784, c. 210, s. 2; 1811, c. 800. 3255. Defects Wllioh do not vitiate. Xo judgment upon any indictment for felony or misdemeanor, whether after verdict, or by confession, or otherwise, shall be stayed, or reversed for the want of the averment of any matter unnecessary to be proved, nor for omission of the words "as appears by the record," or of the words "with force and arms," nor for the insertion of the words "against the form of the statutes" instead of the words "against the form of the statute," or vice versa ; nor for omission of the words "against the form of the statute" or "against the form of the statutes," nor for omitting to state the time at which the offense was committed, in any case where time is not of the essence of the offense, nor for stating the time imperfectly, nor for stating the offense to have been com- mitted on a day subsequent to the finding of the indictment, or on an impossible day, or on a day that never happened ; nor for want of a proper and perfect venue, when the court shall appear by the indictment to have had jurisdiction of the offense. Code, s. 1189; R. C, c. 35, s. 20; 7 Hen. VIII.. c. 8. Note. For procedure in indictments for libel, see ss. 2014, 3267. XIV. Trial Before Justice. 3256. To hear and determine case, when. When the justice shall be satisfied that he has jurisdictirisoiiuient in the state's ])rison or county jail for not less than four months uor more than ten years ; and may also be fined in the discretion of the court. And the offense of such per- son may be inquired of, tried, determined and punished by any court which shall have jurisdiction of the principal felon, in the same man- ner as if the act, by reason whereof such person shall have become an accessory, had been conunitted at the same place as the principal felony, althoiigh such act may have been committed without the limits of the state ; and in case the principal felony shall have been committed within the body of any county, and the act by reason whereof any person shall have become accessory shall have been committed within the body of any other county, the offense of such person guilty of a felony as aforesaid may be inquired of, tried, determined, and punished in either of said comities: Provided, that no person, who shall be once duly tried for such felony, shall be again indicted or tried for the same offense. Code. s. 978; K. C, c. 34 s. 54; 1797, c. 485, s. 1; 1852, c. 58. 3290. Accessories before the fact, how punished. Any person who shall be convicted as an accessory before the fact in either of the crimes of murder, arson, burglary or rape, shall be imprisoned for life in the state's prison. An accessor}' before the fact to the stealing of any horse, mare, gelding or mule, on being duly con- victed thereof, shall be imprisoned in the state's prison for not less than five nor more than twenty years, in the discretion of the court. Every accessory before the fact, in any other felony, shall be pun- ished by imprisonment in the state's prison or county jail for not more than ten years, or may be fined, in the discretion of the court. Code, s. 980; 1868-9, c. 31, s. 2; 1874-5, c. 212. 3291. Felonies and misdemeanors defined. A felony is a crime which is or may be ]iiinislinble by either death or imju'isonment in the state's prison. Any other crime is a misdemeanor. 1891, c. 205, s. 1. 3292. Felonies, punishment of. Every person who shall be con- victed of any felony for which no specific punishment is prescribed by statute, shall be imprisoned in the connty jail or state's j)rison not exceeding two years, or be fined, in tiie discretion of the court, or if the offense bo infamous, the person offending shall be im- ])risoned in the county jail or state's prison not loss than four months nor more than ten years, or be fined. Code, s. 1096; R. C, c. 34, s. 27. 3293 CRIMES—/. General Provisions. Cli. 81 3293. Misdemeanors, punishment of. All misdemeanors, where a specific jjuiiisliiiicnt is not prescribed, shall be punished as misde- meanors at common law; but if the offense be infamous, or done in secrecy and malice, or with deceit and intent to defraud, the offender shall be punished by imprisonment in the county jail, not less than four months nor more than ten years, or be fined. Code, s. 1097; R. C, c. 34, s. 120. II. Animals. 3294. Contagious diseases; rules for prevention of. if any person shall wilfully violate any regulation nuule by the board of agriculture for the quarantine of infected animals or for the trans- portation of stock into this state, or for transporting stock from one section of the state to another section, or for the establishment and maintenance, in co-operation with the department of agriculture of the United States, of cattle districts or quarantine lines to prevent the infection of cattle from splenic or Spanish fever, Texas fever or other infectious or contagious diseases, he shall be guilty of a mis- demeanor. 1901, c. 479, s. 4, b3. 3295. Contagious disease, having, sold, if any person shall sell, or offer for sale, or shall use, or expose, or cause or procure to be sold or offered for sale, or to be used or exposed, any horse or other animal having the disease known as glanders or farcy, or any other contagious or infectious disease known by such person to be dangerous to life, or which shall be diseased past recovery, he shall be guilty of a misdemeanor, and upon conviction shall be fined not more than fifty dollars or imprisoned not more than thirty days. Code, s. 2488; 1891, c. 65; 1881, c. 368, s. 7. 3296. Contagious diseases; having glanders or farcy to be killed. If the owner of any animal having the glanders or farcy shall omit or refuse, upon discovery or knowledge of its condition, to deprive the same of life at once he shall be guilty of a misdemeanor and upon conviction shall be fined not more than fifty dollars or im- prisoned not more than thirty days. Code. s. 2489; 1891. c. 65; 1881, c. 368, s. 8. 3297. Contagious diseases; hogs not to run at large, if any person having swine affected with the disease known as hog cholera, or any other infectious or contagious disease, and discovering the same, or to whom notice of the fact shall be gi\-en, shall fail or neglect for five days to secure the diseased swine from the approach 3297 CRIMES— 77. Animals. Ch. 81 or contact with other hogs not so aifected, by penning or otherwise securing and effectually isolating them, so that they shall not have access to any ditch, canal, branch, creek, river or other water-course which passes beyond the premises of the owners of such swine, he shall be guilty of a misdemeanor, and upon conviction shall be fined not exceeding fifty dollars or imprisoned not exceeding thirty days^ 1S89, c. 173, s. 1; 1891, c. 67, ss. 1, 3; 1903, c. 100; 1899, c. 47. 3298. Contagious diseases; hogs dying with, buried or burned. If any hog or other animal shall die with the hog cholera or other infectious disease, and the owner thereof shall fail to burn or to so bury the same as to secure it from the reach or contact with other hogs or other domestic animals of value, or if he shall throw or place such hog or other animal in any ditch, canal, branch, creek, river or Other water-courses passing beyond his own premises, he shall be guilty of a misdemeanor and upon conviction shall be fined not more than fifty dollars or imprisoned not more than thirty days. 1889, c. 173, s. 2; 1891, c. 67, ss. 2, 3; 1903, c. 106; 1899, c. 47. 3299. Cruelty to; construed how. If any person shall wilfully overdrive, overload, wound, injure, torture, torment, deprive of nec- essary sustenance, (ir cruelly beat, or needlessly mutilate, or kill or cause or procure to be overdriven, overloaded, wounded, injured, tortured, tormented, or deprived of necessary sustenance, or to be cruelly beaten, needlessly mutilated, or killed as aforesaid, any iise- ful beast, fowl or animal, every such offender shall for e\'ery such offense be guilty of a misdemeanor, and upon conviction shall be fined not more than fifty dollars or imprisoned not more than thirty days. In this section, and in every law which may be enacted, relating to animals, the words "animal" and "dumb animal" shall be held to include every living creature ; the words "torture," "torment" or "cruelty" shall be held to include every act, omission or neglect, whereby unjustifiable physical pain, suffering or death is caused or permitted ; but such terms shall not be construed to prohibit lawful shooting of birds, deer and other game for human food. Code, ss. 2482, 2490; 1891, c. 65; 1S81, c. 34, s. 1; 1881, c. .•?68. ss. 1, 15. 3300. Cruelty to, instigating or promoting. If any person shall wilfully set on foot, or instigate, or move to carry on, or promote, or engage in, or do any act towards the furtherance of any act of cruelty to any animal, he shall be guilty of a misdemeanor, and upon conviction shall be fined not more than fifty dollars or imprisoned not more than thirty ilays. Code, s. 2487; 1891, c. 65; 1881, c. 368, s. 6. 3301 CEIMES— 7/. Animals. Ch. 81 3301. Cruelty to, by bear-baiting and cock-fighting. If any per- son shall keep, or use, or in any way be connected with, or interested in the management of, or shall receive money for the admission of any person to, any place kept or used for the purpose of fighting, or baiting any bull, bear, dog, cock, or other animal ; or if any person shall encourage, aid or assist therein, or shall permit or suffer any place to be so kept or used, he shall be guilty of a misdemeanor, and upon conviction shall be fined not more than fifty dollars or impris- oned not more than thirty days. Code, s. 2483; 1891, c. 65; 1881, c. 368, s. 2. 3302. Conveying in cruel manner. If any person shall carry or cause to be carried in or upon any vehicle, or other conveyance, any animal in a cruel or inhuman manner, he shall be guilty of a mis- demeanor, and upon conviction shall be fined not more than fifty dollars or imprisoned not more than thirty days ; and whenever he shall be taken into custody therefor by any officer, such officer may take charge of such vehicle or other conveyance and its contents, and deposit the same in some safe place of custody; and the necessary expenses which may be incurred for taking charge of and keeping and sustaining the same shall be a lien thereon, to be paid before the same can be lawfully reclaimed; or the said expenses, or any part thereof remaining unpaid, may be recovered by the person incurring the same of the owner of said animal in an action therefor. Code, s. 2486; 1891, c. 65; 1881, c. 368, s. 5. 3303. Dogs, female, running at large. If any person owning or having any bitch shall knowingly permit her to run at large during the erotic stage or copulation he shall be guilty of a misdemeanor and fined not exceeding fifty dollars or imprisoned not exceeding thirty days. Code, s. 2501; 1862-3, c. 41, s. 2. 3304. Dogs, sheep-killing, to be killed. If any person owning or having any dog that kills sheep or other domestic animal, upon sat- isfactory evidence of the same being made before any justice of the peace of the county, and the owner duly notified thereof, shall refuse to kill it, and shall permit such dog to go at liberty, he shall be guilty of a misdemeanor, and fined not more than iifty dollars or imprisoned not more than thirty days, and the dog may be killed by any one if found going at large. Code, s. 2500; 1862-3, c. 41, s. 1; 1874-5, c. 108, s. 2. 3305. Dogs, failing to kill when mad. If the o\raer of any dog shall know, or have good reason to believe, that his dog, or any dog belonging to any person under his control, has been bitten by a 3305 CRIMES—//. Animals. Ch. 81 mad dog, and shall neglect or refuse immediately to kill the same, lie shall forfeit and pay the sum of fifty dollars to him who will sue therefor ; and the oifender shall be liable to pay all damages which may be sustained by any one, in his property or person, by the bite of any such dog, and shall be guilty of a misdemeanor, and fined not more than fifty dollars or imprisoned not more than thirty days. Code, s. 24'J9; R. C. c. 67. 3306. Failure to comply with law as to strays. If any person shall fail to C(.)Uiply with any vi the re(iuirL'nieuts of law as to strays, he shall be guilty of a misdemeanor and upon conviction be fined not exceeding fifty dollars or imprisoned not exceeding thirty days. Note. For duties as to strays, see chapter Strays. 3307. False representation of pedigree. If any person shall, with intent to defraud or cheat, knowingly represent any animal for breeding purjioses as being of greater degree of any particular strain of blood than such animal actually possesses, and by such representa- tion obtains from any other person money or other thing of value, he shall be guilty of a misdemeanor, and upon conviction thereof shall for each offense be punished by a fine of not less than sixty dollars nor more than three hundi'ed dollars or by imprisonment for a term not exceeding six months. 1891, c. 94, s. -2. 3308. Fraudulent registration. If any person shall, by any false representation or pretense, with intent to defraud or cheat, obtain fi-om any club, association, society or company for the improvement of the breed of cattle, horses, shecji, swine, fowls or other domestic animals or birds, a certificate of registration of any animal in the herd register of any such association, society or company, or a trans- fer of any such registration, upon conviction thereof he shall be pun- ished by imprisonment for a term not exceeding three months or a fine not exceeding one hundred dollars, or by both such fine and imprisonment. 1891, c. 94, s. 1. 3309. Impounding unlawfully. If any person shall wilfully and unlawfully tole, drixe, ur in any way move any other ])erson's horse, mule, ass, neat cattle, sheep, hog, goat or dog, from the range or elsewhere, into any stock law district, or into the limits of any city or town, having the right to impound or destroy the same, with intent to secure the poundage or other penalty, or with intent to injure the owner of such animal, or to ro(]uire him to jiay any ;i;J09 CKIMES— //. Animals. Ch. SI poundage or ])cualty mi account of such animal, or for liire or reward, he shall be guilty of a misdemeanor. If any person shall unlawfully and wilfully remove any animal above named from any lawful enclosure, with intent to injure the owner, he shall be guilty of a misdemeanor. 1895, c. 141, s. 1. 3310. Impounded, releasing or receiving. If any person unlaw- fully receives or releases any impounded stock, or unlawfully at- tempts to do so, he shall be guilty of a misdemeanor, and shall be fined not more than fifty dollars or imprisoned not more than thirty days. Code, s. 2819; 1889. u. 504. 3311. Impounded, to be fed and watered, if any person shall impound, or cause to be impounded in any pound or other place, any animal, and shall fail to sxipply to the same during such confinement a sufficient quantity of good and wholesome food and water, he shall be guilty of a misdemeanor, and upon conviction shall be fined not more than fifty dollars or imprisoned not more than thirty days. Code, s. 2484; 1891, e. 65; 1881. c. 368. s. 3. 3312. Impounder misappropriating money. If any impounder wilfully misappropriates money that he may receive from sale of stock impounded, or in any manner wilfully violates any provisions of the law in regard thereto, he shall be guilty of a misdemeanor, and on conviction shall be fined not more than fifty dollars or impris- oned not more than thirty days. Code, s. 2818; 1889, c. .504. 3313. Injuries to, in inclosure without lawful fence. If any per- son shall wilfully and unlawfully kill or abuee any horse, mule, hog, sheep or other cattle, the property of another, in any inclosure not surrounded by a lawful fence, such person shall be g'liilty of a mis- demeanor, and fined or imprisoned, at the discretion of the court. Code, s. 1003; 1868-9, c. 253. 3314. Injury of, in range. If any person shall unlawfully and on purpose drive any live ■ stock, lawfully running at large in the range, from said range, or shall kill, maim, or injure any live stock, lawfully running at large in the range or in the field or pasture of the owner, whether done with the actual intent to injure the owner, or to drive the stock from the range, or any other unlawful intent, every such person, his counselors, aiders, and abettors, shall be guilty of a misdemeanor. In the counties of Graham, Swain, Haywood, Jackson and Transylvania he shall be guilty of a felony and pun- 3314 CEIMES— 77. Animals. CL. 81 ished as if convicted of larceny : Provided, that nothing herein con- tained shall prohibit any person from driving ont" of the range any stock unlawfully brought from other states or places. In any indict- ment under this section it shall not be necessary to name in the bill or prove on the trial the owner of the stock maimed, killed or injured. Code, s. 1002; 1885, c. 38:5; 1887, c. 3G8; 189.), o. 190; R, C. c. 34. s. 104; 1850, c. 94, ss. 1, 2. 3315. Killing cattle and failing to show iiide and ears. If any person shall kill any neat cattle, sheep or hog in tlie woods or range, and shall for two days fail to show the hide and ears to the nearest justice or two freeholders, he shall be guilty of a misdemeanor. Code, s. 2318; R. C, c. 17, s. 2; 1901, c. 546. 3316. Killing unmarl on the land rented by him, and then wilfully abandon the same without good cause and before paying for such advances ; or if any laaidlord shall contract with a tenant or cropper by agreeing to furnish him advances to enable him to make a crop, and shall wilfully fail or refuse to furnish said advances according to his agreement without good cause, he shall be giiilty of a misdemeanor and fined not exceeding fifty dollars or imprisoned not exceeding thirty days ; and any person who employs a tenant or crop- per who has violated the provisions of this section, with knowledge of such violation, shall be liable to the landlord furnishing such ad- vances for the amount thereof, and shall also lie giiilty of a misde- meanor, and fined not exceeding fifty dollars or imprisoned not ex- ceeding thirty days. This section shall apply to the following coun- ties only : AVayne, Lenoir, Greene, Johnston, Jones, Onslow, Craven, Cleveland, Sampson, Pitt, Duplin, Gates, Cumberland, Perquimans, Chowan, Robeson, Bladen, Xash, Harnett, Edgecombe, Hertford, Wilson, Rockingham, Pender, Currituck, Gaston, IN^orthamjiton, Beaufort, Chatham, Tyrrell, Mecklenburg, Halifax, Caswell, Cam- den, Cabarrus, Columbus, Martin, ilontgomerv and Washington. 1905, cc. 297. .383, 44.5, 820. 3367. Landlords and tenants violating contracts in certain other counties, if any tenant or cropper shall procure advances from his landlord to enable him to make a crop on the land rented by him and then wilfully refuse to cultivate such crops or wilfully abandon the same without good cause and before ])aying for such advances; or if any landlord who induces another to become tenant or cropper by 3367 CRIMES— TV//. Domestic Relations. Cli. 81 agreeing to furnish him advances to enable him to make a crop, shall wilfully fail or refuse to furnish such advances according to his agree- ment without good cause; or if any person shall entice, persuade or procure any tenant, lessee or cropjier, who has made a contract agree- ing to cultivate the land of another, to abandon, or to refuse or fail to cultivate, such land, or after notice shall harbor or detain on his own premises, or on the premises of another, any such tenant, lessee or cropper, he shall be guilty of a misdemeanor and fined not more than fifty dollars or imprisoned not more than thirty days. Any person who employs a tenant or cropper who has violated the provis- ions of this section with knowledge of such violation shall be liable to the landlord furnishing such advances for the amount thereof. This section shall only apply to the following counties: Wake, Hyde, Anson, Hertford, Sampson, Franklin and Union. 1905, c. 299, ss. 1-7. 3368. Marriage with female under fourteen. If any person shall marry a female under the age of fourteen years, he shall be guilty of a misdemeanor. • Code, s. 1083; R. C, e. 34, s. 40; 1820, c. 1041, ss. 1, 2, 3369. IVIiSCegenation. All marriages between a white person and a negro, or between a white person and a person of negro de- scent to the third generation inclusive, are forever prohibiteu, and shall be void. And any person violating this section shall be guilty of an infamous crime, and punished by imprisonment in the county jail or state's prison not less than four months nor more than ten years, and may also be fined, in the discretion of the court. Code, s. 1084; Const., Art. XIV, s. 8; R. C, c. C8, s. 7; 1834, c. 24; 1838-9, c. 24. 3370. Miscegenation; register of deeds; minister; justice. If any register of deeds shall knowingly issue any license for mar- riage between any person of color and a white person ; or if any clergjTuan, minister of the gospel, or justice of the peace shall knowingly marry any such person of color to a white person, the person so offending shall be guilty of a misdemeanor. Code, s. 1085; R. C, c. 34, s. 80; 1830, c. 4, s. 2. 3371. Marriage license; obtaining, by false representation. If any person shall obtain a marriage license for the uiarringe of per- sons under the age of eighteen years by misrepresentation or false pretenses, he shall be guilty of a misdemeanor, and upon convic- tion shall for each offense be fined not exceeding fifty dollars, or imprisoned not exceeding thirty days-, or both, at the discretion of the court. 1885, c. 340. 3372 CHIMES— nil. Domestic Relations. Ch. 81 3372. Marriage ceremony; performing, witliout license. If any minister or officer shall marry any couple without a license being first delivered to him, as required by law, or after the expiration of such license, or shall fail to return such license to the register of deeds within two months after any marriage celebrated by virtue thereof, with the certificate appended thereto duly filled up and signed, he shall be guilty of a misdemeanor. Code, s. 1817; 1S71-2, c. 193, s. 8 ; E. C, c. G8, a. 5. 3373. Procuring possession of child unlawfully. If any parent who has forfeited his rights to the care and custody of any child by abandonment, as provided by section one hundred and eighty, shall procure the possession and custodj' of such child, with respect to whom his or her rights and privileges are forfeited, otherwise than as by law provided, he shall be guilty of the crime of abduction and shall be punished as for abduction. 1885, c. 120, s. 4. 3374. Servant, hiring another's. If any person shall knowingly hire, employ, harbor or detain in his own service any servant, em- ployee, or wage hand of any other person, who shall have contracted iu writing, or orally, for a fixed period of time to serve his employer, and who shall have left the service of his employer, in violation of his contract, he shall be guilty of a misdemeanor, and shall be civilly liable in damages to the party so aggrieved. This section shall apply to the following counties: Beaufort, Edgecombe, Person, Pitt, Washington, Warren, Vance, Pender, Halifax, Guilford, Granville, Hertford, Wayne and Caswell. 1901, c. 682; 1903, c. 365. IX. Drainagk. 3375. Canal dug under parol agreement, unlawful to obstruct same. Where two or more j^ersons have dug a canal or ditch along any natural drain or waterway under parol agreement, or other- wise, M'herein all the parties shall have contributed to the digging thereof, if any servient or lower owner shall fill up or obstruct said canal or ditch without the consent of the higher owners and without providing other drainage for the higher lands, he shall be guilty of a misdemeanor and be fined not exceeding fifty dollars or imprisoned not more than thirty days. 1899, c. 255. 3376. Drain cut by consent, obstructing. If any jierson shall stop or in any way obstruct the passage of the water in any ditch or canal having been cut through lands of any person by consent of 3:J7fi CRIMES— /A'. Dniinmic Cli. 81 owner of said land, until after giving the interested parties reason- able time to comply with the mode of proceedings provided for the drainage of lowlands, he shall be gnilty of a misdemeanor, and upon conviction shall be fined not exceeding fifty dollars or imprisoned not exceeding thirty days. 1891, c. 434. 3377. Draining creeks, refusal to comply with order of board. If any person shall refuse \n ciiuiply with any rc'i|nireHR'nls of a board dialy appointed by the board of county connnissioners to pro- vide for the drainage of any creek, swamp, or branch, he shall be guilty of a misdemeanor and fined not exceeding two hundred dol- lars, or imprisoned not exceeding two years. 1887. c. 267, s. 7. 3378. Drainage districts, failure to comply with law; obstruct- ing streams in. If any person shall violate any of the jirovisions of law in reft'renee to drainage districts as jirovided in chapter eighty- eight, subchapter Drainage Districts, or shall leave any log, brush, trash or other thing where it is liable to wash into an adjacent stream and obstruct the flow of water or cut any tree so as to fall in a stream or place any other obstniction in a stream in a drainage dis- trict, he shall be fined not more than fifty dollars or imprisoned not more than thirty days. 1905, c. 541, ss. 7, 9. 3379. Draining lowlands, refusal to act as commissioner. If any person having been duly suuiuioued by the county surveyor to act as a commissioner for the drainage of any creek, swamj), branch, or lowlands, shall refuse to serve, be shall be gnilty of a misde- meanor and fined not exceeding Hfty dollars or iui]irir competition or to compete for any purse, prize, premium, stake or sweep-stake offered or given by any agi'icultviral or other society, association or person in this state any horse, mare, gelding, colt or filly under an assumed name or out of its proper class, he shall be punished by fine of not less than 3429 CEIMES— XF. Frauds. Ch. 81 one hundred nor more than one thousand dollars, or imprisonment in the state's prison for not less than one nor more than five years, or both fine and imprisonment, at the discretion of the court. 1893, c. 387. Note. See s. 3668. 3430. False lights on seashore. If any person shall make or display, or cause to be made or displaj'ed, any false light or beacon on or near the seacoast, for the JJ^^'P"*® ^^ deceiving and mislead- ing nuisters of vessels, and thereby put them in danger of shipwreck, he shall be guilty of a felony, and imprisoned in the state's prison for not less than four mouths nor more than ten years. Code, s. 1024; R. C, c. 34, s. 58; 1831, c. 42. 3431. False pretense; obtaining advances under promise to work. If any person, with intent to cheat or defraud another, shall obtain any advances in money, j^rovisions, goods, wares or mer- chandise of any description, from any other person or corporation upon and by color of any promise or agreement that the person mak- ing the same will begin any work or labor of any description for said person or corporation from whom said advances are obtained, and said person so making said ju'omise or agreement shall unlaw- fully and wilfully fail to commence or complete said work according to contract without a lawfid excuse, he shall be guilty of a misde- meanor, and wpon conviction shall be fined not exceeding fifty dol- lars or imprisoned not exceeding thirty days. And evidence of such promise or agreement to work, the obtaining of such advaiaces thereon and the failure to comply with such promise or agreement shall be presiuuptive evidence of the intent to cheat and defraud at the time of obtaining such advances and making such promise or agTcement. subject to be rebutted by other testimony which may be introduced by the defendant, 1889, c. 444; 1891, c. 106; 1905, c. 411. 3432. False pretense; cheating by. If any person shall know- ingly and designedly, by means tif any forged or counterfeited paper, in writing or in print, or by any false token, or other false pretense whatsoever, obtain from any person or corporation within the state any money, goods, property, or other thing of value, or any bank- note, check, or order for the ]iayment of money, issued by, or drawn on, any bank or other society or corporation witliin this state, or any of the United States, or on any treasury warrant, del)entnre, certificate of stock, or public security, or any order, bill of exchange, bond, promissory note, or other obligation, either for the payment of money or for the delivery of si)ecific articles, witii intent to (heat or defraud any person or corporation of the same, such person shall 3432 CEIMES— ZT^ Frauds. Ch. 81 be guilty of a felony, and imprisoned in the state's prison not less than four months nor more than ten years, or fined, in the dis- cretion of the court: Provided, that if, on trial of any one indicted for such crime, it shall be proved that he obtained the property in such manner as to amount to larceny, he shall not, by reason thereof, be entitled to be acquitted of the felony ; and no person tried for such felony shall be liable to be afterwards prosecuted for lar- ceny uj^on the same facts : Provided further, that it shall be sufii- cient in any indictment for obtaining or attempting to obtain any such property by false pretenses, to allege that the party accused did the act with intent to defraud, without alleging an intent to defraud any particular person, and without alleging any owner- ship of the chattel, money or valuable security ; and, on the trial of any such indictment, it shall not be necessary to prove an intent to defraud any particular person, but it shall be sufficient to prove that the party accused did the act charged with an intent to defraud. Code, s. 1025; E. C, c. 34, s. 67; 1811, c. 814, s. 2; 24 and 25 Vic, c. 96, s. 88; 33 Hen. VIII., c. 1, ss. 1, 2; 30 Geo. II., c. 24, s. 1; 52 Geo. III., c. 64, s. 1 ; 7 and 8 Geo. IV., c. 29, s. 53. 3433. False pretense; obtaining signature by. If any person, with intent to defraud or cheat another, shall designedly, by color of any false token or writing, or by any other false pretense, obtain the signature of any person to any written instrument, the false making of which would be punishable as forgery, or obtain from any person any money, goods, wares, merchandise or other projierty or valuable thing whatsoever, he shall be punishable by fine of not less than one hundred dollars nor more than one thousand dollars, or by imprisonment in the state's prison for a term not less than one year nor more than five years, or both, at the discretion of the court. Code, s. 1026; 1871-2, c. 92. 3434. False pretense; obtaining advances by. If any person shall obtain any advances in money, provisions, goods, wares or merchandise of any description, from any other person or corpora- tion, Tipon. any written I'epresentation that the person making the same is the owner of any article of produce, or of any other specific chattel, or personal projierty, wliich property, or the proceeds of wliich the o\\'ner in such representation thereby agrees to apply to the discharge of the debt so created and the owner shall fail to apply such produce or other property, or the proceeds thereof, in ac- cordance with such agreement, or shall dispose of the same in any other manner than is so agreed upon by the parties to the transaction, the person so ofFending shall be guilty of a misdemeanor, whether he shall or shall not have been tlie owner of any such property at the time such representation was made. Code, s. 1027; 1879, cc. 185, 186; 1905, c. 104. 3435 CRIMES— XT'. Frauds. Ch. 81 3435. Mortgaged property, disposing of; indictment; proof. I£ any jiersun, after executing a chattel nidi-tgaiie, f the sanitary authorities of any county in regard to vaccination, he shall be guilty of a misde- meanor and fined not exceeding fifty dollars or imprisoned not ex- ceeding thirty days. 1S9.3, c. 214, s. 23; 1901, c. 245, s. 7. 3456. Water supply, damage to. If any person shall wilfully put into the well, sjjring or cistern of water of any otiier ])erson any substance or thing whereby such well, sjiring or cistern may be en- 3450 CRIMES— XF/7. IleaWi. Ch. 81 damaged, or the water thereof be made less wliolesoiiie or fit for use, he shall be guilty of a uiisdenieanor. Code, s. 1114; R. C, c. 34, s. 97; 1850, c. 104. 3457. Water supply, damage to. if any person shall wilfully or maliciously defile, corrupt or make impure any well, spring or other source of water-supply, or reservoir, or destroy or injure any pijje, conductor of water or other property pertaining to an aque- duct, or shall aid and abet therein, he shall be guilty of a misde- meanor. Code, 3. 1114; R. C, c. 34, s. 97; 1893, c. 214; 18.-)0, c. 104. 3458. Water supply of public institutions. If any person shall in any way intentionally or maliciously damage or obstruct any water line of any public institution, or in any way contaminate or render the water impure or injurious, he shall be guilty of a misde- meanor and shall be fined or imprisoned in the discretion of the court. 1893, c. 63, s. 3. Note. For walci-slipds, see ss. 3857-3862. XVIII. Hunting. 3459. Before daylight and after sunset. If any person shall hunt or shoot any wild fowl, or game bird, on any day after the hour of sunset, or before the hour of daylight, or shall use any gun other than can be fired from the shoulder, or shall himt or shoot wild fowl, birds or game of any kind on Sunday', he shall be guilty of a misdemeanor: Provided, that wild fowl may be hunted after sunset and before daylight and by firelight in that part of Bogue sound in Carteret county, west of Sally Bell's shoal. Code, s. 2837 ; 1903, c. 346. 3460. Chasing deer with dogs, certain counties. If any person shall chase deer with dogs in C'lay, Graham, iMacon or Swain county, he shall be guilty of a misdemeanor. 1903, c. 591. 3461. Currituck sound. If any person shall use more than one "bush blind," either afloat or stationary, in that jjortion of Currituck sound south of a line beginning at E. W. Baum's landing; thence east a straight course to Whale's Head light-house, and north of a line extending from the wharf at Poplar branch ; thence east to Cur- rituck club lands; or shall before or after they have put decoys in the waters of Currituck sound sail or propel a boat in any way in the above described territory for the purpose of picking up or forcing Rov. Vol. 1— fil 1025 ;UG1 CllUlES—XVTII. Himting. Ch. 81 game of any kind on the wing, except by the use of oars oi- jjoles, he shall he gxiilty of a misdemeanor, and upon convietiou thereof shall be fined not exceeding fifty dollars or be imprisoned not exceeding thirty days. 1905. c. .300. 3462. Deer by firelight; evidence of accomplices. If any person sliall hunt for deer with a gim in the woods in the night time, by fire- light, or .shall kill or catch any wild deer while swimming streams or other bodies of water, the person so offending shall be guilty of a mis- demeanor and shall pay a fine not exceeding fifty dollars, or be impris- oned not exceeding thirty days. When more persons than one are en- gaged in committing the offense of fire-hunting, any one may be eom- jjelled to give evidence against all others concerned ; and the witness, upon giving siich information, shall be acquitted and held discharged from all penalties and pains to which he was subject by his participa- tion in the offense. This section shall not apply to Currituck county. Code, ss. 1058. 1059; R. C, c. 34, sa. 95, 96; 1774, c. 103; 1784, c. 212, ss. 1, 3; 1801, c. 595; 1836-7, c. 24; 1879, c. 92; 1905, c. .388. 3463. Deer in Brunswick. If any person shall kill by shooting or drowning or knocking in the head any deer while swimming in any waters of Brunswick county, he shall be guilty of a misdemeanor, and be fined not less than five nor more than twenty dollars. 1905, c. 413. 3464. Destroying nests or eggs of birds. If any person shall take or needlessly destroy the nest or eggs of any wild birds, except those of the English or European house-sparrow, owls, hawks, crows, blackbirds, jackdaAvs and rice birds, he shall be guilty of a misdemeanor and be fined one dollar for each nest or egg destroyed or taken, or be imprisoned not less than five nor more than ten days for each offense. This section shall not apply to any person taking eggs or nests for scientific ]u:r])oses only, by authority of the Aud)i- bon Society of ISTorth Carolina. Code, .s. 28.36; 1003 (Pr.), c. 337, s. 4. 3465. Evidence of illegal hunting, New Hanover, if any person shall ofl'cr for sale on the market, in New Hanover county, any quail, wild turkeys or ducks between the first day of March and the first day of September it shall be prima facie evidence of his having killed such game out of season. 190.5, c. 409. 3466. Killing game out of season. If any person shall at any time hunt, cai)ture or kill any nougame bird, or shall during the 102G 3466 CRIMES— Z7777. Huniiufj. Ch. 81 close season, or time in each year in which the hunting or killing is prohibited, chase with dogs, hunt, kill, or wound, or in any manner take or capture any game bird, or any deer, opossum, rabbit or squir- rel, he shall be guilty of a misdemeanor and be fined not more than fifty dollars or imprisoned not exceeding thirty days : Provided, this section shall not apply to birds caught or killed by authority of the Audubon Society for scientific purposes only. This section shall not apply to the English or European housesparrow, owls, hawks, crows, blackbirds, jackdaws, and rice birds. Code, ss. 2832, 2834; 1903 (Pr.), c 337, s. 14. Note. For close sea.son, see chapter Hunting. Tlie punishment for violation of this section was changed by the general assem- bly of 1905, as follows: Hunting deer in Granville, Person and Vance counties is punishable in the dis- cretion of the court, 1905, c. 47. Deer, squirrel, quail or partridges in Pamlico county, by a fine not exceeding twenty-five dollars, or imprisonment not exceeding ten days, or both, in the dis- cretion of the court, 1905, c. 99. Deer and wild turkey in Richmond county, by a fine of not less than five dollars nor more than ten dollars. 1905. c. 101. In Halifax and Warren counties, by a fine of ten dollars, 1905, c. 137. Squirrel in Montgomery and Pender counties, by a fine of not more than twenty- five dollars, 1905, c. 284. Any game bird in Granville county, bv a fine of five dollars for each bird, 1905, c. 369. Quail or partridges in Alexander county, in the discretion of the court, 1905, c. 377. Quail, partridges or pheasants in Swain county, in the discretion of the court, 1905, e. 385. Deer in Carteret county, by a fine of not less than ten dollars nor more than fifty, 1905, c. 387. Deer in Bladen county, bv a fine of ten dollars or imprisonment for ten days, 1905, c. 398. Any game bird or deer in New Hanover county, by a fine of not less than five dollars nor more than twenty dollars, 1905, c. 409. In Brunswick any game bird or deer, by a fine of not less than five dollars nor more than twenty dollars, 1905, c. 413. Jones and Craven, as to woodcock, by a fine of ten dollars or ten days' imprison- ment, 1905, c. 183. Pamlico county, 1905, c. 99. Cove Creek township, Watauga county, in the discretion of the court, 1905, c. 309. Lanesboro township, Anson county, a fine of not less than five and not more than fifty dollars, 1905, c. 389. 3467. MuskratS or minks, by whom. If any jierson who has not resided within the state two years shall hunt or trap otters, muskrats or minks, or shall sell the hides or skins from these animals in or out of the state, he shall be guilty of a misdemeanor and shall for each offense be fined not less than thirty dollars nor more than fifty dollars. 1905, c. 394. 3468. Netting quail in certain counties. If any person shall net or trap any quail (ir jiartridge in IJurke, Madison, Randolph, Rich- mond or Stokes counties, except on his own laud, ho shall be guilty .'34GS CRIMES— T 17//. ir,i„l!„,i. Ch. SI of a luisdemeauor, and be fined not cxeecdini;' fifty dollars, or im- prisoned not exceeding tliirtv (lavs. 1897. c. 77; ISyH. c 1.57: lilOl. c. 01 : l!Hi:i. e. SO: 1!IU.5, cc. 13, 24. ' 3469. Nonresidents hunting without license. If any nonresi- dent shall hunt in the state without license, as required by law, or shall hunt upon the lands of another without his written consent, or sliall fail to carry his license with him in hunting, or shall fail upon demand to exhibit it to any game warden or iwlice officer, he .shall \ye guilty of a misdemeanor. Each day's hunting without license shall be a separate offense. 1903 (Pr.), c. 337, s. 10. 3470. Packages of game to be marked. If any person shall de- li\'er or knowingly rcceixc for transportation any receptacle or pack- age containing birds or game, unless the same shall be labeled on the address side in plain letters with the name and address of the owner and consignor, and with the kind or kinds of birds which the said package or receptacle contains, or shall falsely label the same, he shall be guilty of a misdemeanor. 1903 (Pr.), c. 337, s. 8. 3471. Shipping certain birds. If any person shall knowingly receive for transi^ortation, or shall ti-ansport or cause to be trans- ported, or have in his possession with the intent to transport, or to secure the transportation of, or shall in any manner carry or convey, beyond the limits of this state, except for purposes of propagation under permits issued by the Audubon Society of iSTorth Carolina, any partridge, pheasant, grouse, shore or beach birds, quail, wild tur- key, snipe, woodcock, or nongame bird which have been killed or captured within this state, he shall be guilty of a misdemeanor; and each bird so killed or taken or had in possession, received for transportation or transported contrary to the provisions of this sec- tion shall constitute a separate offense. The reception by anj' per- son or corporation within this state of any siieh birds or game for shipment to a jjoint beyond the limits of this state, shall he prima facie evidence that said birds or game were killed within the state for the purpose of conveying same beyond its limits; but the pro- visions of this section shall not apply to the common carriers into whose possession any of the birds mentioned in this section shall come in the I'egular course of their business for transportation while they are in transit through the state from any place without the slate. 1903 (Pr.). c. 337. s. 7: Code, s. 2835. 3472. Shipping or selling birds in certain counties. If any per- son shall sell or otfov for sale, or have in his possession any quail in 1028 ;U72 CRIMES— XF///. Hiiulini/. Cii. SI Forsyth county, during the close season ; or shall sell, or offer to sell, or in any way dispose of any quail in Catawba or Iredell counties, which wore not killed by hunting and shooting during the open season in those counties ; or shall sell or offer for sale, or have in his possession for sale in Buncombe county, any quail, ]iartridge, pheas- ant, grouse, wild turkey or dove killed in said county, except during the open season, or shall in said coimty kill more than twenty-five of such birds in one day ; or shall sellj offer to sell or buy any pheas- ant during the close season in Randolph county, unless such pheasant shall have been propagated in an enclosure and killed for his private use; or shall ship or transport or convey any quail or partridge oiit of Surry, Catawba or Iredell counties, or any live quail or partridge out of Swain county ; or shall take or destroy any quail or partridge in Catawba or Iredell counties, except by hunting and shooting dur- ing the open season, on his own land, he shall be guilty of a misde- meanor. The violation of this section shall be punished as follows: Buncombe and Forsyth counties, by a fine not exceeding fifty dollars, or imprisonment not exceeding thirty days. Catawba, Iredell, Swain and Surry counties in the discretion of tlie coitft. ^ 1905, ce. 305, 173, 343, 251, 334. 3473. Wild fowl, Carteret county. If any person shall hunt or shoot wild fowl by firelight after tlio hour of sunset and before the hour of sunrise in Carteret county, except in that part of Bogue sound west of Sally Bell shoal, or use for such shooting any other gun than one that can be fired from the shoulder; or if any per.son shall hunt or shoot wild fowl in Carteret county with or fi-om batteries or- sneak boats froiu the first day of April to the first day of December of any year; or if any person shall hunt wild fowl with batteries or sneak boats, or shoot them therefrom in that part of Bogiie sound, ('arteret county, west of Sally Bell shoal, at any season, he shall be guilty of a misdemeanor and be fined not less than, ten nor more than fifty dollars. 1903, e. 346. 3474. Wild fowl, Currituck county. If any person shall put bushes or blinds of any kind on their boats or floats of any kind with intent to decoy or pursue ducks, or shall, after putting out decoys, sail, row, or in any manner propel a boat after wild fowl to put them on the wing, or shoot them with rifle or shotgam from any boat while sailing, or shall place any sail, flag, or other device upon any land bordering on the water to frighten any wild fowl, or shall leave more than one stationary busli or blind standing in the water between the hours of dark and sunrise, or shall fail to anchor any decked boat or float-house, or house built over the water and used 3474 CRIMES— XTY/7. Hunting. Ch. 81 to live in for the purpose of fishing or hunting wild fowl, in shoal water not more than three hundred yards from the mainland on the west side of Currituck sound, or at some public landing on the east side between the north end of Church's island and the south end of Powell's point at dark, or shall at dark fail to go to some landing as aforesaid, or shall leave any lauding or ancliorage before sunrise in the morning for the purpose of hunting or fishing, or shall before sunrise put out any decoys of any kind, or nets, or shall continue to hunt or fish after dark, or shall, between the thirty- first day of "March and the tenth day of November of any year, shoot or capture any wild fowl over decoys, or shall between the tenth day of November of any year and the thirty-first day of March of the next year on any Wednesday, Saturday or Sunday hunt, take, kill or capture any M'ild fowl, or on any of said days shall disturb or rout any raft of wild fowl unless the same be unavoidable in the usual course of navigation, or shall between the tenth day of Novem- ber and the fifteenth day of February skiff or ring-shoot any boobies or ruddy duck, or shall between the thirty-first day of jMarch and the tenth day of November ship out of the county any wild fowl, or shall sail or propel a boat on Sunday for the purpose of locating wild ia\\\, or if any hired or employed person sliall sail or lay around anywhere near any citizen who may be gunning or fishing to dam- age his shooting or keep him from shooting, he sjiall be guilty of a misdemeanor. This section shall only apply to Currituck county. 1889, c. 59; 1889, c. 115; 1889, c. 126; 1893, c. 286; 1895, c. 299; 1897, c. 291; 1899, c. 245; 1903, c. 112; 1903, c. 136. 3475. Hunting wild fowl in Dare county without license. If any nonresident shall hunt wild fowl in Dare county without hav- ing paid the license tax required by law, or if any person shall hunt wild fowl in said county in any manner not autliorized by law, he shall be guilty of a misdemeanor. 1897, c. 415; 1899, c. 133. 3476. Wild fowl in Dare county. If any nonresident of this state sliall slioot wild fowl from any bo;it or floating battery in the waters of that part of Dare county \vhich lies south of a line passing east and west through the extreme northern end of Roanoke island, unless within four miles of some clubhouse or lodge of which he is a mem- ber or guest, or from some licensed boat or battery from which non- residents are by law authorized to shoot wild fowl, lie shall be guilty of a misdemeanor. 1899, c. 133, s. 2; 1901, c. 157. 3477. Wild fowl in New Hanover and Brunswick counties. If any jx'rsfjii sliall kill, for sale, any wild fnwls in the walcrs of Dare, 1030 3477 CRIMES— Zy/77. Hunting. Ch. 81 ISTew Hanover or Brunswick counties between the tenth days of March and November of any year, or ship out of the state between said dates any wild fowl killed in the waters aforesaid, or if any nonresident shall in said counties, or in Currituck county, shoot any wild fowl from any blind, box or battery or iioat, not on land at the time, he shall be guilty of a misdemeanor and be fined not more than fifty dollars, or imprisoned not more than tiiirty days. Code, s. 2840; 1889, c. 59. 3478. Wild fowl in Pamlico sound, Hyde county. If any person shall shoot any wild fowl in the waters of Pamlico soimd, in Hyde county, from any box, battery or float not on land at the time, he shall be guilty of a misdemeanor: Provided, residents of the state may shoot from batteries not on land on Monday, Tuesday, Thurs- day and Friday of each week and on no other days. 1897, c. 484. 3479. Wild fowl with fire, if any person shall hunt wild fowl, or game birds of any kind, with fire, he shall be guilty of a mis- demeanor and upon conviction be fined not less than twenty and not more than fifty dollars, or imprisoned not less than ten days and not more than thirty days. Code, s. 2839. 3480. Without written permission. If any person shall, without having first obtained permission of the owner, hunt with gun or dogs on the laud of another, or if he shall fish or attempt to catch fish from said lauds after being forbidden, he shall be guilty of a misdemeanor and be fined not exceeding fifty dollars or imprisoned not exceeding thirty days. Code, s. 2831; 1895, c. 147*. 3481. Without written permission. If any person shall hunt with dog or gun upon the lands of another without the written con- sent of the owner of the lands, he shall be gi^ilty of a misdemeanor. This section slrall apply only to the counties of Hertford, Rowan, Wayne, Madison, Montgomery, Currituck, l^ash, Yadkin, Robeson, Craven, Jones, Bock Creek township, Randolph county; Mineral Springs and Wolfpit townships, Richmond county ; Rutherford town- ship, Rutherford county; Goose Nest, Poplar Point and Hamilton to'wnships, Martin county ; and to hunting quail or partridge in Frank- linville township, Randolph county, and in Columbia township, Ran- dolph county, within the following boundary lines, to-wit: From junction of Columbia and Franklinville townships on Franklinville and Siler City public road ; thence north Avitli the line dividing Franklinville and Columbia township line to Liberty township line ; ■64:81 CRIMES— AT///. Iluuting. Oh. 81 thence east with line dividing Columbia and Liberty townships to Ramsenr and Liberty public road ; thence south with Liberty and Eamsenr public roads to Franklinville road at llamseur academy; thence M-ith said road to the beginning. There shall be no hunting at all exccjit in the month of JJecember of each year in _^Lldisou county, and in ]\Lirtin county consent may bo given by the authorized agent. This section shall not apjdy to fox hunting in Wayne county, or to fox hunting with three or more dogs in Xash county, or to the hunting of wolves, bears, foxes and wildcats in Madison county, or to the lumting by tenants on the lands of their landlords in ilartin county. The jjunishment for the violation of this section shall, as to the several places to which it applies, be as follows: In Hertford and Rowan counties, by a tine of not less than five dollars nor more than twenty-five dollars, or imprisonment not more than thirty days; in Wayne county, by a fine of not less than five dollars nor more than ten dollars for each offense ; in iladison county, by a fine of not less than five dollars nor more than twenty-five dollars, or imprisonment not less than five nor more than twenty days ; in Montgomery county, by a fine not less than ten dollars nor more than fifty dollars, or im- prisonment not to exceed thirty days ; in Currituck county, by a fine not exceeding ten dollars, or imprisonment not exceeding ten days; in Nash county, by a fine of not less than five dollars nor more than twenty-five dollars ; in Robeson and Yadkin counties, by a fine not less than five dollars nor more than ten dollars ; in Craven and Jones counties, by a fine of not less than five dollars nor more than twenty- five dollars, or imprisonment not exceeding thirty days ; in Randolph county, by a fine of not less than five dollars, or imjirisonmcnt not exceeding thirty days; in Richmond county, by a fine not less than five dollars nor more than fifty dollars, or imprisoiunent not exceed- ing twenty days ; in Rutherford county, by a fine of five dollars ; in Martin county, by a fine not to exceed ten didlars, or imprisonment not to exceed ten days; in Randolph county, by a fine not exceeding five dollars, or imprisonment not exceeding ten days; in Craven and Jones counties, prosecution can be maintained only niion complaint of the land owner. 1899, c. 279; 1901, cc. 63, 150; 1903, cc. lo3, 770; 190.5. cc. 13, 156, 150, 322, 1G7, 329, 382, 12, .323, 216, 61, 185, 25. 510. XIX. Insurance. 3482. Adjuster acting for unauthorized company. If any per- son shall act as adjuster on a contract made otherwise than autlior- ized by the laws of this state, or by any insurance company or per- son not regularly licensed to do business in the state, or shall adjust or aid in the adjustment, either directly or indirectly, of a loss by fire on property located in this state, incurred on a contract not ;;4S2 CEIMES— ATX. Imumnce. Ch. 81 authorized by the laws of the state, he shall be deemed guilty of a misdemeanor and shall upon conviction be fined not less than two hundred dollars nor more than five hundred dollars, or imprisoned not less than six months nor more than two years, or both, in the discretion of the court. 1899, c. 54, s. 114. 3483. Agent procuring insurance in unauthorized company, and failing to file statement and affidavit, if any person licensed to procure insurance in an unauthorized foreign company shall pro- cure, or act in any manner in the procurement or negotiation of insiirance in any unauthorized foreign company, and shall neglect to make and file the afiidavit and statements required by law, he shall forfeit his license and be punished by a fine of not less than one hundred nor more than five hundred dollars, or by imprison- ment for not more than one year, or by both. 1899, c. 54, ss. 68, 95. 3484. Agent acting without license. If any person shall assume to act as an insurance agent or insurance broker without license therefor as required by law, or shall act in any manner in the negotia- tion or transaction of unlawful insurance with a foreign insurance company not admitted to do business in this state, or as principal or agent shall violate any provision of the law in regard to the negotia- tion or efl^ecting of contracts of insurance, he shall be guilty of a misdemeanor, and upon conviction shall be punished by a fine of not less than one hundred nor more tlian five hundred dollars for each offense. 1899, c. 54, s. 94. 3485. Agent to exhibit license. If any agent of any insurance company shall, on demand of any person from whom he shall solicit insurance, fail to exhibit a certificate from the insurance commis- sioner bearing the seal of his ofiice, and dated within one year from such demand, he shall be fined five dollars or imprisoned ten days for each offense. 1899, e. 54, s. 81. 3486. Agent obtaining premiums by false representations. If any insurance agent or broker knowingly ]irocures by fraudulent rep- resentations payment, or the obligation for the payment of a pre- mium of insurance, he shall be punished by a fine of not less than one hundred nor more than five hundred dollars, or be imprisoned for not more than one year. 1899, c. 54, s. 69. 3487 CRIMES— X/JT. rnsumme. Ch. 81 3487. Agents, etc., making false statements, if any solicitor, agent, examining physician or other jiersim shall knowingly or wil- fully make any false or fraudulent statement or representation in or with reference to any publication for insurance, or shall make any such statement for the purpose of obtaining fee, commission, money or benefit in any corporation transacting business in this state, he shall be guilty of a misdemeanor, and upon conviction shall be punished by a tine of not less than one hundred dollars nor more than five hundred dollars, or imprisonment in the county jail for not less than thirty days nor more than one year, or both, at the dis- cretion of the court; and if any person shall wilfully make a false statement of any material fact or thing in a sworn statement as to the death or disability of a .policy or certificate holder in any such corporation, for the purpose of procuring payment of a benefit named in the certificate of such holder, he shall be guilty of per- jury. 1899. f. 54, s. 60. 3488. Agents signing certain blank policies. If any agent, com- missioned or otherwise, of any steam-boiler, liability, accident, plate- glass, or fidelity insurance company shall sign any blank contract or policy of insurance, upon conviction thereof he shall be fined for each offense not less than one hundred dollars nor more than two hundred dollars. 1899, e. 54, ss. 108, 109. 3489. Agent guilty of larceny, if any insurance agent or broker who acts in negotiating a contract of insurance by an insurance company lawfully doing business in this state embezzles or fraudu- lently converts to his own use, or, with intent to use or embezzle, takes, secretes, or otherwise disposes of, or fraudulently withholds, appropriates, lends, invests, or otherwise uses or applies any money or substitute for money received by him as such agent or broker, contrary to the instructions or without the consent of the company for or on account of which the same was received by him, he shall be deemed guilty of larceny. 1889, c. 54. s. 103. 3490. Agent violating insurance law. if any iierson, either as principal or ugout, or pretending to be such, shall solicit, examine or inspect any risk, or shall examine into, adjust, or aid in adjust- ing any loss, or shall receive, collect or transmit any premium of insurance, or shall do any other act in the soliciting, making or executing any contract of insurance of any kind otherwise than the law permits, he shall be deemed guilty of a misdemeanor, and on 3490 CEIMES— X7X. Insvrnnce. Ch. 81 conviction shall pay a fine of not less than two hundred dollars nor more than five hundred dollars, or be imprisoned not less than one nor more than two years, or both, at the discretion of the court. 1899, c. 54, s. 115. 3491. Agent's compensation, unlawful restriction of. It shall be unlawful for any fire insurance company, association or partner- ship doing business in this state employing an agent who is employed by another fire insurance company, association or partnership, either directly or tlirough any organization or association, to enter into, make or maintain any stipulation or agTeement in restraint of or lim- iting the compensation which said agent may receive from any other fire insurance company, association or partnership. The penalty for any violation of this section shall be a fine of not less than two hun- dred and fifty dollars nor more than five hundred dollars and the for- feiture of license to do business in this state for a period of twelve months thereafter. 1905, c. 424. 3492. Company advertising assets without liabilities. If any company or any agent thereof issues or circulates advertisements in which any such company publishes its assets and does not in the same connection and with equal conspicuousness publish its liabili- ties computed on the basis aUowed for its annual statements, or any publication purporting to show its capital which exhibits more than the amount of such capital as has been actually paid in cash, it or he shall be punished by a fine of not less than fifty nor more than two hundred dollars. 1899, c. 54. ss. 18, 96. 3493. Company making false statement. If any insurance com- pany in its annual or other statement required by law shall wilfully misstate the facts, the insurance company and the person mak- ing oath to or subscribing the same shall severally be punished by a fine of not less than five hundred nor more than one thousand dollars. Any person making oath to such false statement shall be g-uilty of the crime of perjury. 1899, c. 54, s. 97. 3494. Failure to exhibit books on demand. If any person hav- ing in his possession or control any books, accounts or papers of any person licensed under the insurance law shall, on demand, refuse to exhibit the same to the insurance commissioner, or shall knowingly or wilfully make any false statement in regard to the same, such person shall be deemed guilty of a misdemeanor, and, \ipon con- 3494 CEIMES— X/.Y. Insurance. Cli. SI viction thereof shall be fined or imprisoned, or both, at the discretion of the court. 1899, c. 54, s. 7G. 3495. Fire company reinsuring in unauthorized company. If any fire iusurance company shall, directly or indirectly, reinsure any risk taken by it on any property located in ^N^orth Carolina in any company not duly authorized to transact business herein, the insur- ance agent and the company effecting or acting in the negotiation of such reinsurance shall severally be punished by a fine of five hundred dollars. 1S99, e. 54, ss. 63, 98. 3496. Mutual fire, guaranteeing against assessments. If any director or other officer of a mutual fire insurance company, either ofiicially or privately, shall give a guarantee to a policy-holder thereof against an assessment to which such policy-holder would otherwise be liable, he shall be punished by a fine not exceeding one hundred dollars for each offense. 1899, c. 54, s. 100. 3497. Reinsurance; medical examination. If any domestic life insurance company shall reinsure its risks, except by permission of the insurance commissioner, exceeding one-half of any individ- ual risk, or if any life insurance company organized under the laws of, or doing business in, this state shall enter into any contract of insurance upon lives within this state without having previously made or caused to be made a prescribed medical examination of the inspired by a registered medical practitioner, such insurance com- pany, or any officer, agent or other person soliciting or effecting, or attempting to effect, a contract of insurance contrary to this section, shall be deemed guilty of a misdemeanor and shall be pimished by a fine not exceeding one himdred dollars for each offense. 1899. c. 54, s. 58. XX. Lakcenv. 3498. Bank-notes, securities, etc. If any person shall feloni- ously steal, take and carry away, or take by robbery, any bank-note, cheek, or order for the payment of money issued by or drawn on any bank, or other society or corporation within this state or within any of the I'nitcd States, or any treasury warrant, debenture, cer- tificate of stock, or other public security, or certificate of stock in any corporation, or any order, bill of exchange, bond, promissory note, or other obligation, either for the payment of money or for tlie delivery of specific articles, being the property of any other per- :;i'.iS CRIMES— ZX. Lair en i/. Cli. 81 -.111, or of any corporation (notwithstanding any of the said particu- hirs may be termed in law a chose in action), siTch felonious stealing, taking and carrying away, or taking by robbery, shall be felony of the same nature and degree and in the same manner as it wouhl have been if the offender had feloniously stolen, or taken by robbery, money, goods, or property of any value, and such offender for every such offense shall suffer such punishment, and be subject to the same pains, penalties and disabilities as he should or might have suffered if he had feloniously stolen or taken by robbery money, goods, or other property of value. Code. s. 10G4; K. C, e. ;!4, s. 20: 1811. c. 814. s. 1. 3499. By servant, if any servant or employee to whom any money, goods or other chattels, or any of the articles, securities, or clioses in action mentioned in the preceding section, by his mas- ter shall be delivered safely to be kept to the use of his master, shall withdraw himself from his master and go away with the said money, goods, or other chattels, or any of the articles, securities, or choses in action mentioned as aforesaid, or any part thereof, with intent to steal the same and defraud his master thereof, contrary to the trust and confidence in him reposed by said master; or if any serv- ant, being in the service of his master, without the assent of his master, -shall embezzle such money, goods, or other chattels, or any of the articles, securities, or cho.scs in action mentioned as afore- said, or any part thereof, or otherwise convert the same to his o'wni use, with like purpose to steal them, or defraud his master thereof, the servant so offending shall be fined or imprisoned in the state's prison or county jail not less than four mouths nor more than ten years, at the discretion of the court: Provided, that nothing in this section contained shall extend to apprentices, or servants, within the age of six-teen years. Code, s. 1065; R. C, c. .34, s. 18; 21 Hen. VIII., c. V, ss. 1, 2; .",9 Geo. III., e. 85; 7 and 8 Geo. IV.. c. 20, s. 47; 24 and 25 Vic, c. 90. s. 68. 3500. Distinction between grand and petit, abolished. All dis- tinctions between petit and grand larceny, Avhere the same liath had the benefit of clergy, is abolished ; and the offense of felonious steal- ing, where no other punishment shall be specifically prescribed there- for by statute, shall be punished as petit larceny is: Pi-ovided, that in cases of much aggravation, or of hardened offenders, the court may, in its discretion, sentence the offender to the state's prison for a period not exceeding ten years. Code, s. 1075 ; R. C, c. 34, s. 26. 3501. Dogs subject of larceny. If any person shall feloniously take, steal and cawv ;iwav miv dog listed for taxation on which 3501 CRIMES— A' A'. Larceny. Cb. SI there is paid an annual tax of one dollar, he shall be guilty of lar- ceny. Code, s. 2502; 1881, c. 302. 3502. Ginseng growing on land of another. All persons shall be allowed to dig ginseng at any time of the year for the purpose of re- planting the same. If any person shall take and carry away, or shall aid in taking or carrying away, any ginseng gTowing upon the lands of another person, with intent to steal the same, he shall be guilty of a felony, and shall be imprisoned not less than two years nor more than five years, in the discretion of the court: Provided, that such ginseng, at the time the same be so taken shall be in beds and the land \ipon which such beds are located shall be surrounded by a lawful fence. 1905, c. 211. Note. For digging ginseng, see s. 3714. 3503. Growing crops. If any person shall steal, or feloniously take and carry away any maize, corn, wheat, rice, or other grain, or any cotton, tobacco, potatoes, peanuts, pulse, or any fruit, vegetable, or other product cultivated for food or market, gTowing, standing or remaining ungathered in any field or gTound, he shall be guilty of larceny, and punished accordingly. Code, s. 1069; 1811, c. 816; R. C, c. 34, s. 21; 1868-9, c. 251. 3504. Live stock, felonious injury equal to. If any person shall pursue, kill or wound any horse, mule, ass, jennet, cattle, hog, sheep or goat, the property of another, with the intent unlawfully and feloniously to convert the same to his own use, he shall be guilty of a felony, and shall be punishable, in all respects, as if convicted of larceny, though such animal may not have come into the actual pos- session of the person .so offending. Code, s. 1068; 1866, c. 57. 3505. Of horse. If any person shall steal any horse, mare, geld- ing or mule he shall suffer imprisonment at hard labor for not less than five nor more than twenty years, at the discretion of the court. A count imder this section may be joined in a bill of indictment with a count under section three thousand five hundred and nine. Code, s. 1000; 1868, e. 37, a. 1; 1879, c. 2.34, s. 2; 1806-7, c. 62. 3506. Punishment for. in all cases of larceny where the value of the property stolen does not exceed twenty dollars, the punish- ment shall, for the first offense, not exceed imprisonment in the state's prison or connnon jail, for a longer term than one year. If the larceny is from tlic jKM'Sdii, or frcuii tliu dwolliiig by breaking 3506 CKIMES— A'.r. Larceny. Cb. 81 and entering in the daytime, this .scctinn shall have no application. In all eases of doubt, the jury shall, in the verdict, fix the value of the property stolen. 1895, c. 285. 3507. Receiving. If any person .shall receive any chattel, prop- erty, money, valuable security, or other thing whatsoever, the steal- ing or taking whereof shall amount to larceny or felony, either at common law or by virtue of any statute made or hereafter to be made, such person knowing the same to have been feloniously stolen or taken, every such receiver shall be guilty of a misdemeanor, and may be indicted and convicted, whether the felon stealing and taking such chattels, property, money, valuable security, or other thing, shall or shall not have been previously convicted, or shall or shall not be amenable to justice ; and any such receiver may be dealt with, indicted, tried and punished in siny coimty in which he shall have, or shall have had, any such property in his possession, or in any county in which the thief may be tried, in the same manner as such receiver may be dealt with, indicted, tried and punished in the county where he actually received such chattel, money, security, or other thing; and such receiver shall be punished as one convicted of larceny. Code, s. 1074; R. C, c. 34, s. 56; 1797. c. 485, s. 2. 3508. Records, registration booIti(incers, shall not, witliiu thirty days after such reception or collection, pay over and account for the same to the treasurer of the county board of education for the benefit of the fund for common schools in such county, he shall be guilty of embezzlement, and may be punished not exceeding five years in the state's prison, and fined, at the discretion of the court. Code, s. 3678; 1872-3, c. 144. snhc. 6, ss. fi, 7; 1S83, c. 136, s. 48. 3595. Officers of public institutions and other enterprises in which state has interest failing to make true report, if any presi dent or other chief officer of any railroad, canal or other public works of internal improvement in which the state owns an interest shall fail to nuike a true report of the affairs of his company, as is required by section four thousand eight hundred and forty; or if any super- intendent or other chief officer of any state or public institution, charitable, penal or educational, in which the state has or owns an in- terest, except the higher educational institutions that are not also charitable, shall fail to make a true report of the affairs of his institu- tion, as is required by section four thousand eight hundred and forty- one, he shall be guilty of a misdemeanor, and be fined not less than one thousand dollars nor more than five thousand dollars, or be im- prisoned not less than one nor more than five years at hard labor in the state's prison. Code, s. 1693; 1868-9, c. 270, s. 100: 1874-5, c. 502, s. 2. 3596. Officers ordering females to work In chaingang. If any officer, either judicial, executive or ministerial, shall order or require the working of any female on the streets or roads in any ij.v.Ki CRIMES— XX/T'. Officers. Ch. SI group or chaiii-gang in this state, lie shall be deemed guilty of a niisdemeanor. 1897, c. 270. 3597. Penalty for failing to make, or for refusing copy of, com- mitment. If any person, to whom a writ of habeas corpus is directed, shall neglect or refuse to make due return thereto, or to bring the body of the party detained according to the command of the writ without delay, or shall not, within six hours after demand made therefor, deliver a copy of the commitment or cause of detainer, such person shall, upon conviction on indictment, be fined one thousand dollars, or imjjrisoned not exceeding twelve months, and if such person be an officer, shall moreover be removed from office. Code, s. 1652; 1868-9. c. 116, .-s. 27. 3598. Public laws; custodians of, etc., disposing of, or refusing to deliver to successor. It shall be the duty of the clerk of the superior court of each county, and every other person to whom the acts of the general assembly, supreme court reports, or other public documents are transmitted or de]iosited for the use of the county or the state, to safely keep the same in their respective offices ; and if any such person having the custody of such books and documents, for the uses aforesaid, shall negligently and wilfully dispose of the same, by sale or otherwise ; or refuse to deliver over the same to his successor in office, he shall be guilty of a misdemeanor, and pun- islied by fine or imprisfinment, or both, at the discretion of the court. Coflc. s. 107.-!; 1S81, c. 1.51. 3599. Register of deeds failing to discharge duties. If any register of deeds fails to ])erform any of the duties imposed or authorized by law, he shall be gniilty of a misdemeanor, and besides other punishments at the discretion of the court, he shall be removed from office. Code. .36o9: 1S6S. o. 3.5. <<. is. 3600. Register of deeds failing to index instruments. If any register of deeds shall fail to provide and keep in his office full and complete al])habetical indexes of the names of the parties to all liens, grants, deeds, mortgages, bonds and other instruments of writing- required to be registered (said indexes to be kept in well-bound books, and shall state in full the names of all the parties, whether grantors, gTantees, vendors, vendees, obligors or obligees, and shall be indexed and cross-indexed, so as to show the name of each party under the ap]n-opriate letter of the alphabet, and reference shall be made opposite each name to the page, title or number of the book in which is registered any such lien, deed, bond, conveyance or other 3600 CKIMES— A'A'/T'. Officers. Cli. si iiistnimeiit), or shall fail within tweuty-four hours after registering any such instrument to index the same as above provided, he shall be guilty of a misdemeanor. Code, s. 3664; 1899, c. 501 ; 1S76-7, o. 93, s. 1. 3601. Refusing to turn over official papers to person adjudged entitled to office, if a pcrsnu against whom a judgment has been rendered in an action brought ti) recover a public oitice shall fail or refuse to tuni over, on demand, to the person adjudged to be entitled to such office, all papers, documents and books belonging to such office, he shall be guilty of a misdemeanor. Code, s. 612; C. C. P., 372. 3602. Sheriff failing to return venire facias, if any sheriff shall fail to duly execute and return any writ of venire facias, he shall be fined by the court not exceeding one hiindred dollars. Code, s. 1740; K. C, c. 35, s. 31; 1830, o. 27, s. 2. 3603. Sheriff or jailer failing to obey commitment from ad- joining county. If any sheriff' or jailer shall refuse to obey any order of commitment nuide by a justice of the peace or other proper officer of an adjoining county in M-hich there is no jail, or an unfit or inse- cure jail, he shall be guilty of a misdemeanor. Code, ss. .3457. 34.58; R. C, c. 87. ss. 2, 3; 1835, c. 2, ss. 1, 2. 3604. Sheriff or other officer failing to return process. If any sheriff", constable, or other officer, A\hcther state or municipal, or any person Avho shall presume to act as any such officer, not being by law authorized so to do, refuse or neglect to return any precept, notice, or process, to him tendered or delivered, which it is his duty to execute, or make a false return thereon, he shall forfeit and pay tt) any one who will sue for the same one hundred dollars, and shall moreover be guilty of a misdemeanor. Code, s. 1112; R. C, c. 34, s. 118; 1818, e. 980, s. 3; 1827, e. 20, s. 4. 3605. Swearing falsely to report, if any clerk, sheriff, register of deeds, county commissioner, county treasurer, justice of the peace, constable, or other county officer shall wilfully swear falsely to any report or statement required by law to be made or filed, concerning or touching the county, state or school revenue, he shall be guilty of a misdemeanor. Code, s. 731: 1874-5, c. 151, s. 4; 1876-7, e. 276, s. 4. 3606. Treasurer of state; fraudulent entries and statements by. If the treasurer of the state sliall wittingly or falsely make, or cause to be made, any false entry or cluirge in any honk k(']it by him as 3006 CKIMES— XX/F. Officers. Ch. 81 treasurer, or shall wittingly or falsely form, or procure to be formed, any statement of the treasury, to be by him laid before the governor, the general assembly, or any committee tliereof, or to be by him used in any settlement which he is required to make with the auditor, with intent, in any of said instances, to defraud the state or any person, such treasurer shall be guilty of a misdemeanor, and fined, at the discretion of the court, not exceeding three thousand dollars, and imprisoned not exceeding three years. Code, s. 1119; R. C, c. 34, s. 68. 3607. Town aldermen failing to appoint inspectors. If the alder- men or commissioners of auj' city or town shall fail or refuse to ap- point a chief of the fire department, or shall fail or refuse to rea- sonably remunerate him, they shall be guilty of a misdemeanor. This section shall not apply to the aldermen or commissioners of any city or town, where such city or town is by law exempt from the law regulating and controlling the erection and inspection of buildings. 1905, c. 506, s. 4. 3608. Town officers failing to establish fire limits. If the alder- men or commissioners of any city or town shall fail or refuse to es- tablish and define the fire limits for such town according to law, they shall be giiilty of a misdemeanor. This section shall not apply to aldermen or commissioners of those towns which are exempt from the law governing the inspection of buildings. 1905, c. 506, s. 7. 3609. Town officers failing to pay over taxes monthly. If any constable or collector of taxes for any tmvn or city, or any other ofli- cer, shall fail to make settlement and full return of all moneys, pen- alties and fines coming into his hands each month with the town or city treasurer, or other officer authorized to receive the same, he shall be giiilty of a misdemeanor. Coile, s. 3814; 1879. c. 194, s. 2; 1881. c. 37. 3610. Town officers; inspection of buildings, if any chief of any fire department or local inspector of buildings shall fail to per- form the duties required of him by law or shall give a certificate of inspection without first making the inspection required by law, or shall improperly give a certificate of inspection, he shall be guilty of a misdemeanor. This section shall not apply in towns exempt from the law governing the inspection of buildings. 1905, e. 506, s. 5. .■'.(Ill CUI.MKS- .V.\l'. /'njiinj. Ch. 81 XXV. Perjuky. 3611. Before legislative committee, if any person shall wil- fuUj and corruptly swear falsely to any fact material to the investi- gation (if Miiy matter before' any eomniittee of either house of the genera] assembly, he shall be subject to all the pains and penalties of wilful and corrupt perjury, and, on conviction in the superior court of "Wake county, shall be confined in the state's prison for the time prescribed by law for perjury. CoiU.. s. 2Sr>7: 1869-70, c. 3, s. 4. 3612. Court-martial, if any person shall wilfully and corruptly swear falsely before any court-martial, touching and concerning any matter or thing cognizable before such court-mai-tial, he shall l)e liable to the pains and penalties of perjury. Code, s. 3235; R. C, c. 70. ■<. 7.1: 1812, c. 828. s. :!. 3613. False oath to wrong a laborer, if any contractor, steve- dore or boss stevedoi'e shall make any false oath or false representa- tion with intent to wrong, cheat or defraud any laborer as contem- plated in the provisions and purview of the chapter entitled Liens, he shall be guilty of a misdemeanor, and on conviction thereof sliall be punished as is uoav prescribed by law for perjury. 1887, c. U5, s. 5. 3614. Insolvent debtor. If any insolvent or ini))risoned debtor take any oath prescribed in the chapter entitled Insolvent Debtors, falsel}' and corruptly, and upon indictment of iierjui-y be convicted thereof, he shall suffer all the jiains of perjury, and he shall never after have any of the benefits of that chapter, but may be sued and imprisoned as though he had never been discharged. Code, s. 20(34; R. C, c. 59, s. 2.5: 1793, c. lOO, <. 10: ISfiS 9. .-. 102, s. 23. 3615. Offense of. if any person shall wilfully and corruptly com- mit perjury, on his oath or affirmation, in any suit, controversy, mat- ter or cause, de])euding in any of the courts of the state, ur in any deposition or affidavit taken pursuant to law, or in any oath or affir- mation duly administered of or concerning any matter or thing whereof such jievson is lawfully required to be sworn or affirmed, every person so offending shall be guilty of a misdemeanor and fined not exceeding one thousand dollars, and imprisoned in the county jail or state's ])rison not less than four months nor more tlian ten years. Code. s. 1092: R. ('.. r. 34, s. 49; 1791, c. 338, s. 1. 1064 :;i;i(3 CRIMES— A'Xr. I'erjun). Ch. 81 3616. Subornation of. If any person shall, by any means, pro- iMire auiitlici- pei'suii. tr the Ijenelit uf creditors shall know- ingly swear falsely in the statement of the amoimt claimed by him required by law to be filed with the trustee, he shall be guilty of a misdemeanor. 1893, c. 453, ss. 6, 7. Note. See Conveyances. XXVI. Person. 3618. Abortion; destroying child; intent. If any person shall wilfully administer to any woman, either pregnant or qiiick with child, or prescribe for any such w^onian, or advise or procure any such woman to take any medicine, drug or substance whatever, or shall use or employ any instrument or other means with intent thereby to destroy said child, unless the same shall have been neces- sary to preserve the life of such mother, he shall be guilty of a felony, and imprisoned in the state's ju'ison for not less than one year nor more than ten years, and be fined at the discretion of the court. Code, s. 975; 1881, c. 351, s. 1. 3619. Abortion; destroying woman; intent. If any person shall administer to anv pregnant woman, or prescribe for any such wo- man, or advise and procure such woman to take any medicine, drug or anything whatsoever, with intent thereby to procure the miscar- riage of any such woman, or to injure or destroy such woman, or shall use any instrument or application for any of the above pur- poses, he shall be guilty of a felony, and imprisoned in the jail or state's prison for not less than one year nor more than five years, I and be fined, at the discretion of the court. Code, s. 976; 1881. c. 351, s. 2. I 3620. Assault, punishment for. In all cases of an assault, with or without intent to kill or injure, the person convicted shall be pun- I ished by fine or imprisonment, or both, at the discretion of the court: Provided, that where no deadly weapon has been used and no seri- ous damage done, the punishment in assaults, assaults and batteries, and aflfrays, shall not exceed a fiuie of fifty dollars or imprisonment 3620 CKniES— .Y.V17. Prrso,,. Vh. s[ for thirty days; but this proviso sliall not aii])ly to eases of assault with intent to kill, or with intent to commit rape. Code, s. 987; 1870-1, e. 4.'), s. 2; 187;! 4, c. 176. s. 0: 1870. c-. 92, ss. 2, 6. 3621. Assault in secret manner, if any person siuill maliciously commit an assault and battery with any deadly weapon upon another by waylaying or otherwise, in a secret manner, with intent to kill such other person, he shall be guilty of a felony and punishable by imprisonment in jail or the penitentiary f guilty of a felony, and punished by fine or imprisonment, or both, such imprisomnent to be in the county jail or state's prison, at the discretion of the court: Provided, that the imprisonment in the state's prison shall in no case exceed a term of ten years: Provided further, that nothing in this section shall be construed to prevent the mother, who may be guilty of the homicide of her child, from being prosecuted and punished for the same according to the princi- ples of the common law. And any person aiding, counseling or abetting any woman in concealing the liivth of her child, shall be guilty of a misdemeanor. Code, s. 1004; R. C, e. 34, s. 28; 181S. t-. 985; 1883, t-. 390; 21 .Tac. I., c. 27; 43 Geo. III., c. .58, s. 3; 9 Geo. IV., c. 31. s. 14. 3624. Carnal knowledge of married woman by personating husband, if any JHTSDU sluill li;i\c earn;!! kimwledgc of ;uiy ni;n'- ried woman by frau5 CRI.MES— A"A"17. Person. Ch. 81 be punished by imprisonment in the state's prison at hard hibor not less than five nor more than fifteen years. Code, s. 1104; 1881. e. 89. s. 2. 3626. Castration or maiming without malice aforethought. If any person shall, on purpose and unlawfully, but without malice aforethought, cut or slit the nose, bite or cut off a no.se, lip or 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 mem- bers of any other person, with intent to kill, maim, disfigure, disable or render impotent such person, the person so offending shall be imprisoned in the county jail or state's prison not less than six months nor more than ten year.s, and fined, in the discretion of the court. Code, s. 1000: R. C, c. .34, s. 47; 17-54, c. 56; 1791. c. 3.39, ss. 2, 3; 1831, c. 3627. Castration with malice, if any person, of malice afore- thought, shall unlawfully castrate any other person, or cut off, maim, or disfigure any of the privy members of any person, with intent to murder, maim, disfigure, disable or render impotent such person, the person so offending shall suffer imprisonment in the state's jH-ison for not less than five nor more than sixty years. Code, s. 999; R. C, c. 34, s. 4; 1831, e. 40. s. 1; 1868-9, c. 167, s. 6. 3628. Dueling; sending, accepting, bearing challenge. If any person shall send, acccjit or bear a challenge to tight a duel, though no death ensue, he, and all such as counsel, aid and abet him, shall be guilty of a misdemeanor, and, moreover, be ineligible to any office of trust, honor or profit in the state, any ])ardon or reprieve not- withstanding. Code, s. 1012: R, C. c. :U, >. 4S ; 1S(12. i-. 608. s. 1, 3629. Duel, death in; murder. If any person fight a duel in con- sequence of a challenge sent or received, and either of the parties shall be killed, then the survivor, on conviction thereof, shall suffer death ; and all their aiders or abettors shall be considered accessories before the fact. Code, s. 101.3; R. ('., e. .34, s. 3; 1802, c. 008, s. 2. 3630. Enticing minors out of the state. If any person shall em- ploy and carry beyond the limits of this state any minor, or shall induce any minor to go beyond the limits of this state for the pur- pose of employment without the consent in writing, duly authenti- cated, of the parent, guardian or other person having authority over such minor, he shall be guilty of a misdemeanor, and on conviction nn.lO CULMKS— A'ZF/. Person. Cli. SI thereof shall be fiiipil not less than five hnnilred and not more than one thousand dollars 'for each offense. The fact of the employment and going out of the state of the minor, or of the going out of the state by the minor, at the solicitation of the person for the purpose of employment, shall be prima facie evidence of knowledge that the person employed or solicited to go beyond the limits of the state is a minor. 1891, c. 45. 3631. Homicide; murder in the first degree, second degree. A murder which shall be perpetrated by means (if jioison, lying in wait, imprisonment, starving, tortnre, or by any other kind of wilfiil, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbei-y, burglary or other felony, shall be deemed to be mnrder in the first degree and shall be punished with death. All other kinds of mnrder shall be deemed mnrder in the second degree, and shall lie punished with imprisonment of not less than two nor more than thirty years in the state's prison. 1893, c. 85; 1S93, c. 281. 3632. Homicide; manslaughter, if any jierson shall .(innnii the crime of manslanghter he shall be punished by imprisomnent in the county jail or .state's prison not less than four months nor more than twenty years. Code, s. 1055; 1879, c. 2.55; 1!. C. c. 34. s. 24; 4 Hen. VII.. c 13: l.SKi. c. 918. 3633. Homicide; manslaughter, second offense, if any person. having been convicted (if the crime (if ni;inshiiii:hlt'r and sentenced tiiereon, shall be convicted of a second crime of the like nature, he shall be imprisoned in the state's prison not less than five nor more than sixty years ; and in every such case of conviction for such sec- ond offen.se, the ])rior conviction of tlie same ]K'rson and sentence thereon may be shown to the court. Code, s. 105(i; K. ('.. c ;!4. ■^. 25. 3634. Kidnapping. If any ])erson shall forcibly i>v fraudulently kidnap any ]iirs(iii, he shall be guilty of a fehmy, :md upon convic- tion may be ])unished in the discretion of the court, not exceeding twenty j'ears in the state's prison. 1901, C-. 099, s. 1. 3635. Libel, communicating, to newspaper, if any person shall state, deliver (ir tr:iiisiiiii liy any means whatever, to the nninager, e(lil(ir, pnlilislicr (ir iv|i(ii-lcr nf any newspaiicr m- periodical for puh- lic;ili(iH llicrcin any fulsc .•iiid lilicldiis -lalcnicnl c(iuccruing ;iny per- 3035 CKI-MES— .YA'17. Fcrsoii. Cli. SI siiu in- CMriKiratiiiii, iiikI tlien.'by secure llie imlilieiitioii of the same, he shall be guilty of a iiiisdenieanor. 1901, c. 557, ss. 2, 3. Note. For punislimcnt of libel by newspaper, see Libel and Slander, s. 201j. 3636. Maiming. If any person shall, of malice aforethought, \iiilawfully cut out or disable the tongue or put out an eye of any person, with intent to murder, maim or disfigure, the person so offending, his counselors, abettors and aiders, knowing of and privy to the offense, shall, for the first oft'ense, be ]junished by imprison- ment in the state's prison or county jail not less than four months nor more than ten years, and be fined, in the discretion of the court; and for the second oft'ense shall be imprisoned in the state's prison not less than five nor more than sixty years. Code. s. 1080; R. C, c. 34, s. 14; 1754. c. 56; 1701, e. 330, s. 1; 1831, e. 12; 22 and 23 Car. II., c. 1, (Coventry act). 3637. Rape. Every )ierson who is convicted of ravishing and carnally knowing any female of the age of ten years or more by force and against her will, or who is convicted of unlawfully and carnally knowing and abusing any female child under the age of ten years, shall suffer death. rode. s. 1101; E. C, c. 34, s. 5; 18 Eliz., c. 7: 1868-9, c. 167, s. 2. 3638. Rape, assault with intent to commit. Every person con- victed of an assault witli intent to coniniit a rape upon the body of any female, shall be imprisoned in tlie state's jirison not less than five nor more than fifteen years. Code, s. 1102; 1868-9, o. 107, s. 3: R. C. c. 107, s. 44; 1823, c. 1229. 3639. Rape and buggery; proof. It shall not be necessary upon the trial of any indictment for the oft'enses of rape, carnally know- ing and abusing any female child under ten years of age, and bug- gery, to prove the actual emission of seed in order to constitute the offense, but the oft'ense shall be completed upon proof of penetra- tion only. Code, s. 1105; 1800-1, c 30. 3640. Slander of innocent woman. If any person shall attempt, in a wanton and malicious manner, to destroy the reputation of an innocent woman, by words written or spoken, which amount to a charge of incontinency, every person so offending sliall be guilty of a misdemeanor. Code, s. 1113; 1S79, e. 150. 3041 CROIES— XXT7Z. Professions. Cli. 81 XXVII. PnOFESSIONS. 3641. Clerks, justices, etc., practicing law. If any clerk of the superior or siqircine court, or any deputy or assistant clerk of said courts, or any justice of the peace, or any county commissioner shall practice law in any of the state courts, he shall be guilty of a mis- demeanor and lined not less than two hundred dollars. Code, ss. 27, 28, 110; 1870-1, e. 90; 1883, c. 406; 1871-2, c. 120: 1880, c. 4:!; C. C. v., s. 424. 3642. Dentistry; practicing, without license. If any i>erson shall practice dentistry, except extracting teeth, without having tirst passed the examination and obtained the certificate provided by law, he shall be guilty of a misdemeanor, and fined twenty-five dollar.s : Provided, any person so convicted shall not be entitled to sue for or recover any fee or charge for dental service in any court, and any sum of money paid to a person so convicted for dental services ren- dered may be recovered by the person so paying the same, or his legal representative : Provided further, no one applying for a license to practice dentistry shall be denied such license on account of race, color or previous condition of servitude. Code, ss. 3154, 3156: 1879, c. 139, ss. 7, 0. 3643. Dentistry; falsely claiming to hold license. If any per- son shall knowingly and falsely claim or pretend to have or hold a certificate of proficiency granted by the board of examiners of the ISTorth Carolina Dental Society, he shall be guilty of a misde- meanor, and upon con\-iction shall be fined not more than fifty dol- lars nor less than twenty-five dollars for each offense. 1887, e. 178, s. 4. 3644. Embalming without license. If any person shall practice or hidd himself out as [iracticing the art of embalming, without iiav- ing com]:)lied -with the provisions of the law as to license, lie shall be guilty of a misdemeanor, and upon conviction thereof shall be fined not less than fifty nor more than one hundred dollars for each offense. 1901, 0. 3;i8, s. 14. 3645. Medicine; practicing, without license. If any person shall ]Dractice medicine or surgery in this state for fee or reward, M'ith- out first having obtained license from the board of examiners of the medical society of North Carolina, he shall not only not be entitled to sue for or recover before any court any medical bill for services rendered in the practice of medicine or surgery, or any of the branches thereof, but shall also be guilty of a misde- meanor, and n])on conviction tlicreof sliall he fined not less than 3(145 CR r:\fES— A' A'17/. Professions. Ch. 81 hventy-fivG dollars nor more than one linndred dollars, or impris- oned, at the discretion of the conrt, for each and every offense: Pro- vided, that this section shall not be constrned to apply to women who pursne the vocation of a midwife: And provided fnrther, that this section shall not apply to any reputable physician or surgeon resident in a neighboring state coming into this state for consulta- tion with a registered physician resident herein. I>ut this proviso shall not apply to physicians resident in a neighboring state regu- larly practicing in this state: Provided, that this section shall not apply to physicians who have a diploma from a regular medical col- lege and were practicing medicine and surgery in this state prior to the seventh day of IMarch, one thousand eight hundred and eighty- five. 1885, c. 117, s. 2; 188"), c. 261; 1889, c. 181, ss. 1, 2. 3646. Medicine; practicing, without registering, if any person shall practice or attempt to practice medicine or surgery in this state without first having registered and obtained the certificate from the clerk of the superior court as required by law, he shall be guilty of a misdemeanor, and upon conviction thereof shall be fined not less than twenty-five dollars nor more than one hundred dollars, or be impris- oned at the discretion of the court, for each and every offense: Pro- vided, this section shall not apply to women pursuing the vocation of midwife, nor to reputable physicians or surgeons resident in a neighboring state coming into this state for consultation with a regis- tered physician of this state. 1889, 0. 181, s. 5. 3647. Medicine; clerl< of superior court registering doctor of, illegally. If any clerk of the superior court shall register, or issue a certificate to, any person practicing medicine or surgery in any other numner than that prescribed by law, he shall be guilty of a misde- meanor, and upon conviction thereof shall be fined not less than two hundred dollars and shall be removed from office. 1889, c. 181, s. 0. 3648. Pharmacy; adulterating drugs. If any person engaged in the sale of drugs, chemicals and medicines shall intentionally adulterate, or cause to be adulterated, or exposed to sale, know- ing the same to be adidterated, any drugs, chemicals or medical preparations, he shall be guilty of a misdemeanor and liable to a fine not exceeding one hundred dollars, and in addition thereto his name shall be stricken from the register of licensed pharmacists, provided he be a licensed pharmacist. Code, s. 3145; 1897, c. 182, s. 7; 1881, c. .355, s. 11 ; 1905, c. 108, s. 3. 1071 3649 CRIMES— -Y-AH'//. Profes.sio„s. Ch. s] 3649. Pharmacist compounding prescriptions without license. If any person, not being licensed as a iiharniacist, shall eoniponnd, dispense or sell at retail any drng, medicine, poison or pharmaceuti- cal preparation, either npon a physician's prescription or otherwise, and any person being the owner or manager of a drug store, phar- macy or other place of business, who shall cause or permit any one not licensed as a pharmacist to dispense, sell at retail or compound any drug, medicine, poison or physician's prescription contrary to the provisions of chapter ninety-five, siibchapter Pharmacists, he- shall be deemed gTiilty of a misdemeanor, and lined not less than twenty-five nor more than one hundred dollars. 1905, e. 108, s. 24. 3650. Pharmacist doing business without license. If any per- son, not being licensed as a pharmacist, shall conduct or manage any drug store, pharmacy or other place of business for the compounding, dispensing or sale at retail of any drugs, medicines or poisons, or for the compounding of physicians' prescriptions contrary to the provisions of chapter uinetj'-fivc, subchapter Pharmacists, he shall be deemed guilty of a misdemeanor, and he fined not less than twenty-five nor more than one hundred dollars, and each week such drug store or pharmacy or other place of business is so unlawfully conducted shall be held to constitute a separate and distinct offense. 1905, c. 108, s. 23. 3651. Pharmacist not displaying license, if any person, king the holder of a license or permit gTanted under the provisions of chapter ninety-five, subchapter Pharmacists, .shall fail to expose such license or permit, or renewal thereof, in a conspicuous position in the jjlace of business to which such permit or license relates, or in which the holder thereof is employed, contrary to the provisions of such subchapter, he shall be guilty of a misdemeanor, and fined not less than five nor more than twenty-five dollars, and each day that such license, permit, or renewal thereof, shall not be exposed shall be held to constitute a separate and distinct offense. 1905, c. 108, s. 26; 1897, c. 187, s. 6. 3652. Pharmacist, not licensed, using title. If any person, not being legally licensed as a iiliarmacist, shall take, use or exhibit the title of pharmacist, licen.sed or registered pharmacist, druggist, apoth- ecary or any other title, name or description of like import, contrary to the provisions of section four thousand four hundred and eighty- six, he shall bo guilty of a misdemeanor, and be fined not less than twenty-five nor more than one hundred dollars. 1905, c. 108, s. 29. 3653 CRIMES— ZXF/7. Professions. Ch. 81 3653. Pharmacist not renewing license. If any person, being a holder of a license or pcniiit granted under chapter ninety-five, subchapter Pharmacists, shall, after tlie expiration of such license or permit, and, without renewing the same, continiie to carry on the business for which such license or permit was granted, contrary to the provisions of section four thousand four hundred and eighty-four, he shall be guilty of a misdemeanor, and fined not less than five nor more than twenty-five dollars. 1905, c. 108, s. 27. 3654. Pharmacist obtaining license fraudulently, if any per- son shall make any fraudulent or false representations for the pur- pose of procuring a license or permit, or renewal thereof, either for himself or for another, he shall be gaiilty of a misdemeanor, and fined not less than twenty-five nor more than one hundred dollars, and if any person shall wilfully make a fal?e affidavit or any other false or fraudulent representation for the purpose of procuring a license or permit, or renewal thereof, either for himself or for an- other, he shall be deemed gnilty of perjury, and upon conviction thereof shall be subject to like punishment as is now prescribed for the crime of perjury. 1905, 0. 108, s. 25. 3655. Selling poison without label. If any person shall sell or deliver to any person any poisonous substance specified in section three thousand eight hundred and twenty-nine or section three thou- sand nine hundred and seventy (a), without labeling the same and recording the delivery thereof in the manner prescribed in said section, he shall be guilty of a misdemeanor, and fined not less than twenty-five nor more than one hundred dollars. 1905. c. 108, s. 28. 3656. Trained nurse, acting as, Illegally. If any person shall procure license as a trained nurse by false representation, or shall re- fuse to surrender a license which has been duly revoked in the manner prescribed by law, or shall use the title "Registered ISTurse" or "R. IST.-' without first having obtained license to do so, he shall be guilty of a misdemeanor, and upon conviction shall be fined not more than fifty dollars or imprisoned not exceeding thirty days. 1903, e. 359, s. 9. XXVIII. Prisoners and Convicts. 3657. Breaking prison. If any person shall break prison, being lawfully confined therein, he shall be guilty of a misdemeanor. Code, s. 1021; R. C, c. 34, s. 19; 1 Edw. II., st. 2d. Rev. Vol. 1—64 1073 3658 CRIMES— A'X17//. Prifioners and Convicts. Ch. SI 3658. Escape. If any prisoner, who shall he i-enioved from the prison of the respective counties, cities and towns under the law providing for hiring prisoners, shall escape from the person or com- pany having him in custody, he shall be guilty of a misdemeanor, and imprisoned at hard labor not more than thirty days, or lined not more than fifty dollars. Code, s. 3455; 1876-7, c. 196, s. 4. 3659. Escape of, permitting, or maltreating. If any person charged in any way with the control or management of convicts, hired for service outside of the state's prison, shall negligently permit them to escape, or shall maltreat them, he shall be guilty of a misde- meanor; but this provision shall not be held to relieve any person from any criminal liability. Code, s. 3450; 1881, c. 127, s. 2. 3660. In improper apartments. If the sheriff or jailer shall wantonly or unnecessarily confine those committed to his custody in any apartment, other than that provided and designated by law fov persons of the description of the prisoner, he shall be guilty of a misdemeanor. Code, s. 3471; R. C, c. 87, s. 16; 1795, c. 433, s. 4. 3661. Injury to, by jailer, if the keeper of a jail shall do, or cause to be done, any wrong or injury to the ]n'isoners committed to his custody, contrary to law, he shall not only pay treble dam- ages to the person injured, but shall be guilty of a misdemeanor. Code, s. 3463; R. C. c. 87, s. 8; 1795, c. 433, s. 6. 3662. Messages and weapons, conveying to. If any person shall convey to or from any convict any letters or oral messages, or shall convey to him any weapon or instrument by which to effect an escape, or that will aid him in an assault or insurrection, or shall trade with a convict for his clothing or stolen goods, or shall sell to him any article forbidden him by prison rules, he shall bo guilty of a misdemeanor: Provided, when murder, an assault or an escape is effected, with means furni.shed the convicts, the person con- victed of furnishing the means shall be sentenced to not less than four years' hard labor in the state's prison. Code, s. 3441; 1873-4, c. 158. s. 12. Note. Working female convicts on roads, see s. 3596. ;;(i03 CRIMES— XA'/X. Property. Ch. 81 XXIX. Peopekty. 3663. Contractor failing to furnish owner indebtedness for la- bor and materials. If anv contractor or architect shall fail to fur- nish to the owner au itemized statement of the sums due to every one of the laborers, mechanics or artisans employed by him, or the amount due for materials, before receiving any part of the contract price, he shall be guilty of a misdemeanor. 1887, c. G7, s. 4. 3664. Crop, tenant's, seized by landlord. If any landlord shall unlawfully, wilfnlly, knowingly and without process of law, and unjustly seize the crop of his tenant when there is nothing due him, he shall be guilty of a misdemeanor. Code, s. 1759; 1876-7, c. 283, 3. 6; 1883, c. 83. 3665. Crop, removal of, by tenant. If any lessee or cropper, or the assigns of either, or any other person, shall remove a crop, or any part thereof, from land without the consent of the lessor or his assigns, and without giving him or his agent five days' notice of such intended removal, and before satisfying all the liens held by the lessor or his assigns, on said crop, he shall be guilty of a mis- demeanor. Code, s. 1759; 1876-7, c. 283, s. 6; 1883, e. 83. 3666. Electric and steam appliances protected. If any person shall wilfully, with intent to injure or defraud, commit any of the acts set forth in the following subsections, he shall be guilty of a misdemeanor : L Connect a tube, pipe, wire or other instrument or contrivance with a pipe or wire used for the conducting or supplying illumina- ting gas, fuel, natural gas or electricity in such a manner as to sup- jily such gas or electricity to any burner, orifice, lam]3 or motor where the same is or can be burned or used without passing through the meter or instrument provided for registering the quantity con- sumed ; or, 2. Obstruct, alter, injure or prevent the action of a meter or other instrument used to measure or register the quantity of illu- minating fuel, natural gas or electricity consumed in a house or apartment, or at an orifice or burner, lamp or motor, or by a con- sumer or other person other than an employee of the company own- ing any gas or electric meter, who wilfully shall detach or discon- nect such meter, or make or report any test of, or examine for the purpose of testing any such meter so detached or disconnected ; or, .1. In any manner whatever change, extend or alter any service or other pipe, wire or attachment of any kind, connecting or through 1075 3666 CKIMES— XZZZ. Property. Ch. SI which natural or artificial .gas or electricity is furnished from the gas mains or pipes of any person, without first procuring from said person written permission to make siich change, extension or altera- tions ; or, 4. Make any connection or reconnection with the gas mains, serv- ice pipes or wires of any person, furnishing to consumers natural or artificial gas or electricity, or turn on or off or in any manner interfere with any valve or stop-cock or other appliances belonging to such person, and connected with its service or other pipes or wires, or enlarge the orifice of mixers, or uses natural gas for heating pur- poses except through mixers, or electricity for any purpose without first procuring from such person a written permit to turn on or off such stop-cock or valve, or to make such connection or j-econnections, or to enlarge the orifice of mixers, or to use for heating purposes without mixers, or to interfere with the valves, stop-cocks, wires, or other appliances of such, as the case may be ; or, 5. Retain possession of or refuse to deliver any mixer, meter, lamp, or other appliances which may be leased or rented to them by any person, for the purpose of furnishing gas, electricity or power through the same, or who sells, loans or in any manner disposes of the same to any person other than the said person entitled to the possession of the same; or, 6. Set on fire any gas escaping from wells, broken or leaking mains, pipes, valves or other appliances used by any person in con- veying gas to consumers, or interfere in any manner with the wells, pipes, mains, gate-boxes, valves, stop-cocks, wires, cables, conduits or any other appliances, machinery or property of any person en- gaged in furnishing gas to consumers unless employed by or acting imder the authority and direction of such person; or, 7. Open or cause to be opened, or reconnect, or cause to be recon- nected any valve lawfully closed or disconnected by a district stcaui corporation ; or, 8. Turn on steam or cause it to be turned on, nr re-(>nter any premises when the same has been lawfully stojiped from entering such premises. 1901, c. 735. 3667. Engines, boilers, machinery; tampering with, if any per- son shall wilfully turn out water from any lioiler or turn the bolts of any engine or boiler, or meddle or tamper with sucli boiler or engine, or any other machinery in connection with any boiler or engine, causing loss, damage, danger, or delay to the owner in tlie prosecution of his work, he shall be guilty of a misdemeanor. 1901, c. 733. 3668 CRIMES— XXZZ. Property. Ch. 81 3668. Fairs; injuring exhibits at; indictment. If any person, with- out license of tlie owner, or any agricultural or other society, shall unlawfully carry away, remove, destroy, mar, deface or injure any- thing, animate or inanimate, while on exhibition on the grounds of any such society, or going to or returning from the same, he shall be guilty of a misdemeanor. It shall be sufficient in any indictment for any such offense, or for the larceny of any such thing, animate or inanimate as aforesaid, to charge that the thing so carried away, destroyed, marred, injured or feloniously stolen, is the property of the society to which the said thing shall be foi'warded for exhibition. Code, s. 2796; 1870-1, c. 184, s. 4. Note. For fraudulent entries at fairs, see s. 3429. 3669. Fair grounds, unlawfully entering. If any person, after having been expelled from the fair grounds of any agricultural or horticultural society, shall offer to enter the same again without per- mission from such society; or if any person shall break over the 0: 1858-9, c. 34, s. 1; 1889, c. 355. 3722. Gambling; money to be seized. All moneys, or other prop- erty or thing of value exhibited for the purpose of alluring persons to bet on any game, shall be liable to be seized by any justice of the peace, or by any person acting under his warrant. And the moneys or other j^roperty or thing which shall be so seized, shall 3722 CRIMES— Z.YA7/. Public Police. Ch. 81 belong one-half to the person seizing them, and the other half to the use of the poor. Code, s. 1051; R. C, c. 34, s. 77; 1798, c. 502, s. 3. 3723. Gaming tables; opposing destruction of. If any person shall oppose the destruction of any prohibited gaming table, or the seizure of any moneys, property, or other thing staked on forbidden games, or shall take and carry away the same or any part thereof after seizure, he shall forfeit and pay to the person so opposed one thousand dollars, for the use of the state and the person so opposed ; and shall, moreover, be guilty of a misdemeanor. Code, s. 1052; R. C, e. 34, s. 78; 1798, c. 502, s. 4. 3724. Insects, ravages of. If any person shall wilfully violate any regulation made by the commissioner and board of agriculture for the destruction of insect pests he shall be guilty of a misde- meanor. 1901, c. 479, s. 4, subsec. 4. 3725. Lotteries; advertising. If any one by writing or printing or by circular or letter or in any other way advertise or publish an account of a lottery, whether within or without this state, stating how, when or where the same is to be or has been drawn or what are the prizes therein or any of them or the price of a ticket or any share or interest therein or where or how it may be obtained, he shall be guilty of a misdemeanor. 1887, c. 211. 3726. Lotteries, if any person shall open, set on foot, carry on, promote, make or draw, publicly or privately, a lottery, by whatever name, style or title the same may be denominated or known ; or if any person, by such way and means, expose or set to sale any house or houses, real estate, or any goods or chattels, cash, or written evidence of debt, or certificates of claims, or anything of value whatsoever, every person so offending shall be giiilty of a misde- meanor, and be fined not exceeding two thousand dollars, or impris- oned not exceeding six months, or botli, in the discretion of the court. Any person who engages in disposing of any species of prop- erty whatsoever, money or evidences of debt, or in any manner dis- tributes gifts or prizes upon tickets or certificates sold for that pur- pose, shall be held liable to prosecution under this section. Code, s. 1047; R. C. c. 34. s. 69; 1834, c. 19, s. 1; 1874-5, c. 96. 3727. Lottery tickets, sale of. If any person shall sell, barter or dispose of any lottery ticket or order, for any number or shares in any lottery, or shall in anywise be concerned in such lottery, by act- 3727 CRUIES— XXXII. Public Police. C!i. M ing as agent in the state for or on behalf of anv such lottery, to be drawn or paid either out of or within the state, such person shall be guilty of a misdemeanor, and pimished as in tlie preceding section. Code, s. 1048: R. C, c. 34, s. 70; 1834, e. 19, s. 2. 3728. Letters; wrongfully opening or reading. If any person shall wilfully, and without authority, open or read, or cause to be opened or read, a sealed letter or telegram, or shall publish the whole or any portion of such letter or telegram, knowing it to have been opened or read without authority, he shall be guilty of a misde- meanor. 1889, c. 41, s. 2. 3729. IVIinor going in barroom, etc. If the keeper or owner of any barroom, billiard room, or bowling alley, shall allow any minor to enter or remain in such barroom, billiard room, or bowling alley, if before such minor enters or remains in such barroom, billiard room, or bowling alley, the owner or kee]:)er thereof has been notitied by the parents or guardian of such minor not to allow such minor to enter or remain in such barroom, billiard room, or bowling alley, he shall be guilty of a misdemeanor and upon conviction be fined not exceeding fifty dollars or imprisoned not exceeding thirty days. 1897, c. 278. 3730. Nontransferable script to laborers. If any person who employs laborers by the day, week or month shall issue in payment for such labor any ticket or tickets, certificate or other script bearing upon their face the word "nontransferable," or shall issue tickets, certificates or script in any form that would render them void by transfer from the person to whom issiied ; or shall refuse to pay to the person holding the same their face value, he shall be guilty of a misdemeanor, and upon conviction thereof shall be fined not less than ten dollars nor more than fifty dollars for each offense, or imprisoned not more than thirty days. 1889. c. 280; 1891, c. 78; 1891. c. 4.56; 1891. c. 40; 18(11. vc. 107, 370; 189.-.. c. 127; 1891, cc. 167, 4.56. 3731. Obscene literature. If any person .shall exhibit for ilie purpose of gain, lend for hire or otherwise publish or sell for the purpose of gain, or exhibit in any school, college or otlicr institution of learning, or have in his possession for tlie purpose of sale or dis- tribution, any obscene book, paper, writing, print, drawing or otiier representation, lie shall lie guilty of a uiisdeiiieaiior. 1885, c. 125. :)7:53 CRIMES— XA'AT/. Piihllc Police. Ch. 81 3732. Pension claims; speculating in. If any person shall specu- late in or purchase for a less svim than that to which each may be entitled the claims of any soldier or sailor, or widow of a deceased soldier or sailor, allowed under the provisions of the pension law, he shall be guilty of a misdemeanor and upon conviction shall be fined or im25risoned, or both, in the discretion of the court. 1903, e. 273, s. 12; 1885, c. 214. s. 12. 3733. Public drunkenness. If any person shall be found drunk or intoxicated on the jniblic highway, or at any public place, or meeting, in the counties of Dare, Graham, Buncombe, Henderson, Jackson, Ashe, Stanly, MadLson, Gaston, Cleveland, Haywood, Macon, Mecklenburg, or Rutherford, or in Poplar Branch and Fruit- ville townships, Currituck county, or at Pungo in Beaufort county, he shall be giiilty of a misdemeanor and be fined not exceeding fifty dollars, or imprisoned not exceeding thirty days. 1897, c. 57; 1899, cc. 87, 208, 008, 638; 1901, e. 445; 1903, e. 116; 1903, c. 758; 1903, c. 124; 1903, c. 523. 3734. Shooting rifles across Currituck sound and waters of Dare county, if any per.son shall shoot a rifle across or over the waters of Currituck sound, or the waters of Dare county, except in East Lake township, he shall be guilty of a misdemeanor and be fined not less than ten dollars nor more than fifty dollars, or impris- oned not less than ten days nor more than thirty days. 1889, c. 21, ss. 1, 2; 1903, c. 017. 3735. Tramps; who are; discharged, how. If any person shall go about from jilace to place begging, or subsisting on charity, he shall be denominated a tramp, and piuiished by a fine not exceeding fifty dollars, or by imprisonment not to exceed thirty days : Provided^, that any person who shall furnish satisfactory evidence of good char- acter shall be discharged without cost. Any act of begging or va- grancy by any person, unless a well-known object of charity, shall be. evidence that the person committing the same is a tramp. This sec- tion shall not apply to any woman, or minor under the age of four- teen years, or to any blind person. Code, ss. 3828, 3829, 3831. 3833; 1897, c. 20S ; 1879. c. 198, ss, 1, 4, 0. 3736. Tramp entering dwelling without consent. If any tramp shall enter any dwelling-house or kindle any fire on the highway or on the land of another without the consent of the owner or occupant thereof, or shall be found carrying any firearms or other dangerous weapon, or shall threaten to do any injury to any ])erson, or to the real or pei'sonal estate of another, lie shall be punislied by imjn'ison- niont at the disci'etion of the court, not to exceed twelve numtlis. Code, s. 3829; 1879, c. 198, s. 2. 1003 3737 CRBIES— A"A"X//. Fuhlic Police. Ch. 81 3737. Tramp maliciously injuring person or property. If am- tramp shall wilfnllv and maliciously do any injury to any person or to the real or personal estate of another, he shall be punished by imprisonment, at the discretion of the court, not to exceed three years. Code, s. 3830; 1870, e. 198, s. 3. 3738. Tramp, arrest of. Any person, upon a view of any offense described in sections throe thousand seven hundred and thirty-tive, three thousand seven hundred and thirty-six, three thousand seven hundred and thirty-seven and three thousand seven hundred and thirty-eight shall cause the said offender to be arrested upon a war- rant and taken before some justice of the peace, or may appreliend the offender and take him before a justice of the peace, for exam- ination, and, on his conviction, shall be entitled to the same fee as a sheriff. Code, s. 3832; 187!», c. 1!)8, s. 5. 3739. Trusts and monopolies. If any person in any way violate any of the provisions of the law against trusts and monopolies, he shall be gTiilty of a misdemeanor and shall be fined or imprisoned, or both, in the discretion of the court, and each day such violation exists after conviction and liniil jiidnuiout in the iirst trial shall con- stitute a separate offense. 1901, c. 580, s. 12. 3740. Vagrancy, if any person shall come within any of tlic following classes, he shall be deemed a vagi-ant, and shall be fined not exceeding fifty dollars or imprisoned not exceeding thirty days: 1. Persons wandering or strolling about in idleness who are alilo to work and have no property to support them. 2. Persons leading an idle, immoral or profligate life who have no property to support them and M-ho are able to work and do not work. 3. All persons able to work having no property to supi)ort them and wlio have not some visible and known means of a fair, hon(>st and reputable livelihood. 4. Persons having a fi.xed abode who have no visible ]iroperty to support them and who live by stealing or by trading in, bartering for or buying stolen property. 5. Professional gamblers living in idleness. 6. All able-bodied men who have no other visible means of sup- port who shall live in idleness upon the wages or earnings of tlicir mother, wife or minor child or children, except male child or chil- (h'en over eighteen years of age. 190,';, c. 391. 3741 CRIMES— XZZ/Z7. Public Property. Ch. 81 XXXIIl. Public Peopeety. 3741. Cutting timber on lands before obtaining a grant. If any person shall make an entry of any lands, and before perfecting title to same, shall enter upon such lands and cut therefrom any wood, trees or timber, he shall be guilty of a misdemeanor. One-half of any fine collected imder this section shall be paid to the informer and one-half to the school fund of the coimty in which the land is situated. Any person found giiilty under the provisions of this sec- tion shall further pay to the state double the value of the wood, trees or timber taken from the land, and it shall be the duty of the solic- itor of the district in which the land lies to sue for the same. 1003, c. 272, s. 4. 3742. Disorderly conduct in public buildings. If any person shall make any rude or riotous noise or be guilty of any disorderly con- duct in or near any of the public buildings of the state, or shall write or scribble on, mark, deface, besmear, or injure the walls of any of the public buildings of the state, or any statue or monu- ment, or who shall do or commit any nuisance in or near any public building of the state, he shall be guilty of a misdemeanor. The keeper of the capitol or any person in charge of any of the public buildings shall have authority to arrest summarily and without war- rant for a violation of this section. The words "public buildings" as used in this section shall include the grounds around said build- ings. Code, s. 2308; R. C, c. 103, ss. 7, 8; 1829, e. 29. ss. 1, 2; 1842. c. 47. 3743. Meridian monument; injuring, or failing to discharge duty in reference thereto. If any person sliall in any manner injure, de- face, remove or destroy any meridian monument or tablets, or any part thereof, or shall fail, neglect or refuse to do and perform any act, matter or thing by law required of him to be done in connec- tion with such monuments or tablets, shall be guilty of a misde- meanor, and upon conviction thereof shall pay a fine or be impris- oned, or both, at the discretion of the court. 1890, c. 665. s. 3; 1893, c. 282, s. 4. 3744. Phosphate rock in rivers. If any person shall dig, mine or remove any phosphate rock or deposit from any of the navigable waters of this state, except for the purpose of prospecting and dis- covering as allowed by law, he shall be guilty of a misdemeanor, and shall also forfeit and pay ton dollars per ton for every ton of phos- phate rock or deposit so mined, dug or removed, one-half to the use of the state, and the other one-half to go to the informer. 1891, c. 476, s. 8. ion.5 3745 CEIMES— A'A'A7//. Puhlir Properttj. C'li. 81 3745. Public grounds of state in Raleigh. If any person shall wilfully trespass upon any of the public lots belonging to the state in the city of Raleigh, or shall cut any timber or commit any waste, or shall refuse to surrender possession after the ex])iration of their leases, or if any person in p)ossession of any of said lots above men- tioned shall refuse to leave the same and shall further refuse to sur- render possession within ten days after demand made by the keeper of the Capitol, said person shall be guilty of a misdemeanor; and it shall be the duty of said keeper of the capitol to rcjiort all such violations of law to the governor or to the attorney general, and if any of the said persons shall be convicted, they shall be fined or im- prisoned at the discretion of the court. Code, s. 2313; 1870-1, e. 282, s. 4. 3746. Trespass on public lands, if any person shall erect a building on any public lands before the same shall have been sold or gTanted by the state, or on any lands belonging to the state board of education before the same shall have been sold and conveyed by them, or cultivate or remove timber from any of said lands, such person shall be guilty of a misdemeanor ; and, when any person shall be in possession of any part of said land, it shall be the duty of the sheriff of the county in which the land is situated, and he is hereby required, to give notice in writing to such person, connnand- ing him to depart therefrom forthwith ; and if the person in posses- sion, upon being so notified, shall not, within two weeks after the time of notice, remove therefrom, the sheriff is required to remove him immediately, and if necessary, shall summon the ]iower of the county to assist him in so doing. Code. s. 1121 ; R. C. e. .34, s. 42; 1823, c. 1190; 1842, c. 3G. s. 4. XXXIV. E.ULKOADS. 3747. Arrangement of cars. If any oftioer or agent of a railroad company in the arrangement of cars in a (rain slinll direct or know- ingly suffer baggage, freight, merchandise, m- lumber cars to be placed in the rear of passenger cars, except in case of accident or ex- cept when cars are provided with automatic cou]ilers or brakes, he shall be guilty of a misdemeanor: Provided, this section shall not apply to the Wilmington Sea-Coast Railroad Company. Code, s. 1971; 1893, c. 331; 1895, c. 212; 1871-2, c. 138, s. 37. 3748. Beating way on trains, if auy person other than a rail- road employee in the discharge of his iluty, withoiit authority from the conductor of flic train or by permission of the engineer and with the intention of Iteing transported free and wiflidUl imyiug llie :;:iS CRIMES— XA"A7T'. Halhoads. Ch. 81 ii^iial fare for such transportation, rides or attempts to ride on top of anj' car, coach, engine or tender, on any railroad in this state, or on the draw-heads between cars, or under cars on truss rods, or trucks, or in any freight car, or on a platform of any baggage car, express car or mail car on any train, he shall be guilty of a mis- demeanor, and upon conviction thereof, shall be fined not exceeding fifty dollars, or imprisoned not more than thirty days. Any person charged with a violation of this section may be tried in any county in this state through which such train may pass carrying such person, <:)r in any county in which such violation may have occun-ed or may be discovered. 1899, c. 625; 1905, c. 32. 3749. Discrimination in charges, if any common carrier shall directly or indirectly by any special rate, rebate, drawback or other device, charge, demand, collect or receive from any person a greater or less compensation for any service rendered or to be rendered in the transportation of passengers or property subject to the provis- ions of law than it charges, demands or collects or recei\'es from any other person or persons for doing for him or them a like and contemporaneous service in the transportation of a like kind of traiSc under substantially similar circumstances and conditions ; or shall make or give any undue or unreasonable preference or advan- tage to any particular person, company, firm, corporation or locality, or any particular description of traffic in any respect whatsoever, or shall subject any particular ]>crsou, company, firm, corporation or locality or any particular description of trafiic to any undue or unreasonable prejudice or disadvantage in any respect whatsoever, such person or corporation shall be upon conviction thereof fined not less than one thousand nor more than five thousand dollars for each and every off^ense. 1890, c. 164, s. 1.1. 3750. Discriminating against Atlantic and l\lorth Carolina Rail- road. If any railroad in North Carolina shall discriminate against the freights received from the Atlantic and North Carolina Rail- road, or shall make rates by which, either directly or indirectly, by rebates or otherwise, freights may be delivered at less rate when re- ceived from other points than from points along the Altantic and North Carolina Railroad in proportion to distance hauled, it shall be guilty of a misdemeanor, and shall be punished by a fine of not less than one hundred dollars for each and every violation thereof. An indictment for the misdemeanor may be found and tried either in the courts where the goods were shipped or delivered, but the court in which the indictment for the offense is first found shall have exclusive jurisdiction. 1889, c. 358. 1007 3751 CRIMES— ZZA7 r. Ilailroads. Ch. M 3751. Discrimination against connecting lines. If any common carrier shall not afford all reasonable, proper ami e(iual facilities for the interchange of traffic between their respective lines and for the forwarding and delivering of jiassengers and freights to and from their several lines and -those connecting therewith, or shall discrimi- nate in their rates and charges against such connecting lines, or if any connecting lines shall not make as close connection as practica- ble for the convenience of the traveling public, or shall not obey all rules and regulations made by the corporation commission relating to trackage, it shall be punished by a fine of not less than five hun- dred dollars nor exceeding five thousand dollars for each and every offense. 1899, e. 164, s. 21. 3752. Entering cars after forbidden. If any person shall enter into a railroad passenger car, or baggage car, or mail car, or caboose car, or upon the platforms of said cars after being forbidden so to do by the conductor or his assistants, or the baggage master or other person in charge of said cars, unless said persons enter said cars or on said platforms as a passenger or in some official capacity author- ized by law, or on biisiness with a passenger or some official or em- ployee of the railroad or other like piirpose, for every violation of this section the person so offending .shall be guilty of a misdemeanor, and shall be fined not exceeding ten dollars. Code, s. 1970; 1883, c. .3.51. 3753. Failure to construct cattle-guards and crossings. If any incorporated company operating an}' railroad passing through and over the land of any person now enclosed, or which may hereafter become enclosed, shall fail, at its own expense, to construct and con- stantly maintain in good and safe condition, good and sufficient cat- tle-giiards at the points of entrance \ipon and e.xit from said enclosed land, or shall fail to make and keep in constant repair crossings to any plantation road thereupon, s\ich corporation shall be guilty of a misdemeanor, and fined in the discretion of the court. Code, s. 1975; 1883, c. 394, ss. 1, 2. 3754. Injuring or obstructing, if any pcrsim shall wilfully and maliciously put along any imlilic road or liighway, and williin ten yards thereof, wit]io\it putting a vailing or jdank on top of said fence not less tluin tlircc iuclics in widlh, lie sliall be "3769 CRIMES— XZZF. Roads and Bridges. Ch. si guilty of a misdemeanor and fined or imprisoned at the discretion of the court. This section shall apply to the counties of Rowan, Swain, ITayAvood, Catawba, Greene, Richmond, Stokes, Rutherford, Forsyth, Yadkin, Brunswick, Durham, Wilkes, Stanly, Cumberland, Iredell, Macon and Rockingham. 1895, e. 65; 1899, e. 43,: 1899, c. 225; 1905, c. 220. 3770. Board of supervisors failing to make reports. If any board of supervisors shall fail to make any report required by law, or to discharge any duty imposed by law, the members thereof shall be guilty of a misdemeanor. The indictment may be against the board jointly, or against the justices composing said board, or any one or more of them severally. Code, s. 2024; 1879, c. 82, s. 10. 3771. Bridges, injuring. If any person shall imlawfully and wilfully demolish, destroy, break or tear down, injure or damage any bridge across any of the creeks or rivers or other streams in the state, he shall be guilty of a misdemeanor, and fined or imprisoned, or both, in the discretion of the court. Code, s. 993; 1883, e. 271. 3772. Bridges, failure to repair. If any owner of a water-mill, situated on any public road or any other person whose duty it is to keep up and repair bridges built across any ditch, drain, or canal, in the chapter entitled Roads, Bridges and Ferries, shall refuse or neglect to keep up and repair, or shall suffer to remain out of repair for the space of ten days, any bridge which by law he may be I'e- quired to keep up and repair, he shall be guilty of a misdemeanor. Code, s. 1086; R. C, c. 34, s. 40; 1819, c. 941, s. 3. 3773. Bridges, failure to maintain. If any person, who is liable to keep np and maintain any bridge across the public road, as pro- vided by section one thousand seven hvmdi'ed and seventy-two, shall pemiit such bridge to remain out of repair for ten days, nnless un- avoidably prevented, he shall be guilty of a misdemeanor. Code, s. 2037; R. C, c. 101, s. 25; 1817, c. 941, s. 2; 1876-7, c. 90; 1876-7, e. 211. 3774. Bridges: vessels not fastened to. if any person shall fasten any decked vessel or steamer to any bridge that crosses a navigable stream, he shall be guilty of a misdemeanor, and in the case of a bridge that crosses a county line, may be prosecuted in either county. Code, s. 2050; 1887, c. 93, s. 3 ; R. C, c. 101, s. 31; R. S.. c. 104: 1858-9, c. 58, s. 1. 1103 377.-3 CEI-MES— A'A'AT. lloads and Bridges. Ch. ,M 3775. Bridges, failure of railroads, etc., to keep up. If am railroad, jilank-rciail, or turnpike eoiujianj^ shall fail to keep iip, at its own exjiense, all bridges on or over county or incorporated roads, which it has made necessary to be built in establishing its road, it shall bo guilty of a misdemeanor, and fined. Code, s. 2054; R. C, c. 101, s. 35; 18.38, c. 5, ss. 1-4. 3776. Churches, way to. If any person shall maliciously stop ujD or obstruct the waj' leading to any place of public worship, or to any spring or well commonly used by the congregation, he shall be guilty of a misdemeanoi', and fined not more than fifty dollars or imprisoned not more than thirty days. Code, s. 3669; R. C, c. 07, s. 5; 1785, c. 241. Note. For injuries to gates across cartways, see s. 2694. 3777. Damage to roads by hauling logs, how paid, if any of the public roads in Anson, Beaufort, Bertie, Clay, Columbus, Curri- tuck, Dare, Gates, lialifax, Lenoir, Macon, Pasquotank, Pitt, Kuther- ford, Stokes, Swain, Tyrrell and Yancey counties shall be used by any person engaged in hauling logs or wood, whether such hauling be by the employees or agents of any other ^jcrson, company or cor- poration, or by contractors for any other person, company or corpo- ration, and the public roads shall become damaged by such use, upon complaint made to the chairman of the board of supervisors of the ])ublic roads of the township in which such damaged road is situ- ated, he shall summon the person, company or corporation, or the manager of such person, company or corporation, alleged by such complainant to have damaged such road, before a called or regular meeting of the board of road supervisors of such township in which such alleged damaged road is situated, within ten days after com- plaint is made to him, and said board of road supervisors shall inves- tigate by visiting and inspecting such damaged road, and they shall hear evidence on oath, as to the condition of siich damaged road and the cause of its bad condition, and the damage done to surh road by the hauling of logs over such road by such person, company or corporation; and if the board of supervisors shall find such road or any part thei-eof damaged by the hauling of logs over the same, the person, company or corporation, or their agents, employees or contractors, alleged in the complaint to have damaged such road or any part thereof, they .shall assess against such person, company, or corporation an anifiunt of mone\' suflicient to repair such road. And the board of road supervisors shall return to the clerk of the superior court the amount of such assessment as a judgnnent of the board of township road supervisors, and the clerk shall docket this transcript 3777 CRIMES— A'ZZT. Boads and Bridges. Vh. 81 and it shall thereuijon become a judgment of the superior court, and the clerk shall issue execution against such delinquent person or cor- poration for the assessed damages as other executions and the sheriff shall pay the proceeds of said judgnnent to the clerk of the superior court, to be applied by the board of townsliip supervisors to the repair of such damaged road. 1889, c. 503, ss. 1-.3; 189.3, c. 416; 1899, o. 712: l!»l)l. o. 18!). 3778. Damage to road by hauling logs or wood. If any person, company or corporation shall damage any public road, bridge or cause- way by hauling logs or sawmill timber thereon, and shall not repair the damage done thereto within five days after being notified of said damage by the overseer of said road, or by any member of the board of supervisors of the township in which said damaged road is situated, he shall be giiilty of a misdemeanor, and shall be fined not less than ten nor more than fifty dollars, or be im])risoue(l not exceeding thirty days : Provided, if any person shall pay the damage as assessed by the board of supervisors for injury to such road, the payment of such damages shall be a complete bar to any criminal prosecution under this section, and if any criminal prosecution shall have been com- menced prior to the payment of said damages, all further proceedings in said criminal prosecution may be ended by the defendant paying the cost necessarily incurred in said criminal prosecution and sat- isfying the court that said damages and all proper costs have been paid. 1893, e. 416, s. 2; 1889, c. 503, s. 2. 3779. Failure to work. If any person liable to work on the road shall fail to attend and work, as provided by law, when summoned so to do, unless he shall have paid the one dollar as provided, he shall be guilty of a misdemeanor, and fined not less than two dollars nor more than five dollars, or imprisoned not exceeding five days, and if any defendant shall be unable to discharge the judgment and costs that may be recovered against him, the costs shall be paid by the county. Code, s. 2020; 1885, c. 392; R. C, c, 101, s. 11; 1817, c. 935, s. 2; 182.5, c. 1287; 1879, c. 82, s. 6. 3780. Fast driving over bridges. If any person shall ride or drive over any public bridge at a rate of speed faster than a walk, he shall be guilty of a misdemeanor, and upon conviction shall be fined not more than fifty dollars or imprisoned not more than thirty days : Provided, that this section shall not apply to any bridge unless the county commissioners shall keep posteil at each end of such bridge a notice forbidding the riding or driving over such bridge at a rate of speed faster than a walk. Rev. Vol. 1—66 1105 3781 CRIMES— XXXr. Boads and Bridges. Ch. 81 3781. Gates across public roads, leaving open. If any person shall leave open, break down or otherwise injure any gate lawfully across any public road, he shall forfeit and pay for every such offense ten dollars to the person erecting the same or his assigns of the land, and if the offense shall be maliciously or wantonly done, he shall be guilty of a misdemeanor. Code, 2058; 1885, e. 45. 3782. High-water signals established. If any overseer of roads shall fail to establish high-water marks or signals on both sides of any river, creek or stream which is used as a ford for a public high- way, and to permanently fix the same, he shall be guilty of a misde- meanor. 1889, c. 517. 3783. Injury to sign-boards or mile-posts, if any person shall needlessly remove, knock down or deface any public sign-post, arms, or any mile-mark, he shall be guilty of a misdemeanor. Code, s. 2031; R. C, c. 101, s. 19; 1784, c. 227, s. 11; 1812, c. 846. 3784. Obstruction of roads. If any person shall wilfully alter, change or obstruct any highway, cartway, mill road or road leading to and from any church or other place of pTiblic worship, whether the right of way thereto be secured in the manner provided for by law or by purchase, donation or otherwise, such person shall be guilty of a misdemeanor, and fined or imprisoned, or both. If any person shall hinder or in any manner interfere with the mak- ing of any road or cartway laid off according to law, he shall be guilty of a misdemeanor, and punished by fine or imprisonment, or both, in the discretion of the court. Code, s. 2065; 1872-3, c. 189, s. 6; 1S83, c. 383. 3785. Overseer; neglect of duty. If any overseer of a road shall wilfully neglect any of the duties imposed on him by law, he shall be guilty of a misdemeanor, and fined not to exceed fifty dollars or imprisoned not to exceed thirty days. Code, s. 1054; 1889, c. .504; R. C, c. 34, s. 39; 1786, c. 256, s. 4. XXXVI. Eevende. 3786. Agent of corporation failing to pay taxes, if any agent or oflicer of a corporation, after having been notified by the sheriff or tax collector that the taxes assessed against such corporation are delinquent, shall fail or refuse to pay over to the sheriff or tax col- lector all moneys in his hands, or which may afterwards come into his hands, belonging to such corporation, not exceeding the amount 3786 CEIMES— ZZZ77. Revenue. Ch. 81 of the taxes dne, he shall be guilty of a misdemeanor, and fined not less than fifty nor more than five himdred dollars. 1901, c. 558, s. 29. 3787. License tax, failure to pay. If any person liable for any license tax fail or refuse to pay such tax when demanded by the sheriff, he shall be guilty of a misdemeanor, and punished by fine or imprisonment, at the discretion of the court. 1903, c. 247, s. 87. 3788. Officer failing to surrender tax list. If any sheriff or tax collector shall refuse or fail to surrender his tax list for inspection or correction upon demand by the authorities imposing the tax, or their successors in ofiice, he shall be guilty of a misdemeanor, and imprisoned not more than five years, and fined not exceeding one thousand dollars, at the discretion of the court. Code, s. 3823; 1870-1, c. 177, s. 2. 3789. Peddling without license. If any person shall unlawfully hawk or peddle any goods, wares or merchandise, or shall fail, upon the application of the sheriff" or his deputy, or any justice of the peace, to show his license as required by law, he shall be guilty of a misdemeanor, and fined not exceeding fifty dollars, or imprisoned not exceeding thirty days. Code, s. 1091; 1889, c. 504; R. C, c. 34, s. 44; 1835, c. 17, s. 3. 3790. Sheriff failing to attend tax sale; selling property not liable, if any sheriff shall fail to attend any sale of lands as re- quired by law in regard to tax sales, either in person or by compe- tent deputy, he shall be guilty of a misdemeanor and liable to a penalty of three hundred dollars, to be recovered by an action in the superior court against the sheriff and his bondsmen. And if such ofiicer or deputy shall sell or assist in selling any real property, knowing the same not to be subject to taxation, or that the taxes for which the same is sold have been paid, or shall knowingly and will- ingly sell or assist in selling any real property for payment of taxes to defraud the owner of such real property, or shall knowingly or willingly execute a deed for property so sold, he shall be guilty of a misdemeanor, and be liable to a fine of not less than one thousand nor more than three thousand dollars, or to imprisonment not exceed- ing one year, or to both fine and imprisonment, and to pay to the injured party all damages STistained by such wrongful act. and all such sales shall be void. 1901, c. 558, 9. 6. 1107 ;3701 (^RIMP:S— ZZZF/. Revenue. Ch. 81 3791. Stevedores to obtain license. If any person shall cngagv in tlie business of luadiiig ov unloading vessels upon contract, or if any person shall solicit or make any contract for himself or for any other person to load or unload any vessel, either by day's work or by the job for the owners, master, consignee or shipper, or do or perform any other of the work usually performed by contracting or boss stevedores, without having previously obtained license from the sheriff in the manner provided by law, he shall be guilty of a misdemeanor and shall be fined or imprisoned, or both, at the dis- cretion of the court. 1891, c. 450, s. 1 ; 1899. c. 59.5. 3792. Tax commissioners may examine books. If any corpora- tion, firm or individual shall, upon demand, refuse to permit the state tax commissioners, or any one of them, to examine the books, papers and accounts of such corporation, firm or individual, for the purpose of obtaining information as to property liable to be assessed for taxation, under any of the laws of this state ; or if any person shall refuse to appear before the state tax commissioners, or any member thereof, when subpoenaed so to do, or shall upon such appearance fail or refuse to testify, he shall be guilty of a misde- meanor, and fined not exceeding one thousand dollars, or imprisoned in the state's prison not exceeding two years, or both, in the discre- tion of the court. 1901, c. 7, s. 4; 190.3, c. 251, s. 4. XXXVII. Safety. 3793. Automobiles, ordinances regulating. If any person shall violate an ordinance prescribed by tlie board of commissioners of a county regulating the speed of automobiles, motor-cycles and other like vehicles, or governing the use of the same, he shall be guilty of a misdemeanor, and be fined not exceeding fifty dollars or im])risoned not exceeding thirty days. This section shall not ai)]ily to Mecklen- burg or Xcw Hanover counties. 1905, c. 331. 3794. Dynamite cartridges, exploding, if any jierson shall fire oft', explode, or cause to be fired oft' or exploded, except for mechani- cal purposes in a legitimate business, any dynamite cartridge, bomb, or other explosive of a like nature, he shall be guilty of a misde- meanor. 1S87, e. 304, s. .3. 3795. Exposing children to fire, if any person shall leave any child, of the age of seven years or less, locked or otherwise confined 3795 CEIMES— XZZl'7/. Safety. Ch. 81 in any dwelling, building or enclosure, and go away from said dwell- ing, building or enclosure, withoiit leaving some person or persons of the age of discretion in cliarge of the same, and so as to expose said child or children to danger by fire, such person so offending shall be guilty of a misdemeanor, and shall be juinished at the discretion of the court. 1893. c. 12. 3796. Marl beds, failure to enclose. If any person shall open any marl bed without surrounding it with a lawful fence, he shall be guilty of a misdemeanor, and ujion conviction shall be fined not exceeding fifty dollars or imprisoned not exceeding thirty days : Pro- vided, this shall not apply to any person whose marl bed is enclosed inside his own enclosure. 1887, ec. 2.35, 268. 3797. Mines, if any person shall knowingly violate any of the provisions of the law relating to mines or shall do anything whereby the life or health of persons or the security of any mine and machin- ery is endangered, or if any miner or other person employed in any mine governed by the statutes shall intentionally or wilfully neglect or refuse to securely prop the roof of any working place under his control, or neglect or refuse to obey any orders given by the superin- tendent of a mine in relation to the security of a mine in the part thereof where he is at work and for fifteen feet back of his working place, or if any miner, workman or other person shall knowingly injure any water-gauge, barometer, air course or brattice, or shall obstruct or throw open any air ways, or shall handle or disturb any part of the machinery of the hoisting engine or signaling appa- ratus or wire connected therewith, (jr air pipes or fittings, or open a door of the mine, and not have the same closed again, whereby danger is produced either to the mine or those that work therein, or shall enter any part of the mine against caution, or shall disobey any order given in pursuance of law, or shall do any wilful act whereby the lives and health of the persons working in the mines or the security of the mine or the nmchinery thereof is endangered, or if the person having charge of a mine whenever loss of life occurs by accident connected with the machinery of such mine or by explosion shall neglect or refuse to give notice thereof forthwith by mail or otherwise to the inspector and to the coroner of the county in which such mine is situated, or if any such coroner shall neglect or refuse to hold an inquest upon the body of the person whose death has been thiis caused, and return a copy of his findings and a copy of all the testimony to the inspector, he shall be guilty of a misde- 3797 CRIMES— ZZA'T^//. Safety. Ch. si meanor, and upon conviction fined not less than fifty dollars or im- prisoned in the county jail not more than thirty days, or both. 1897, c. 251, s. 8. 3798. Owner of building failing to comply with law. If the owner or builder erecting any new building, upon notice from the local inspector, shall fail or refuse to comply with the terms of the notice by correcting the defects pointed out in such notice, so as to make such building comply with the law as regards new buildings, he shall be guilty of a misdemeanor, and shall be fined not exceeding fifty dollars. Every week during which any defect in the building is wilfully allowed to remain after notice from the inspector shall con- stitute a separate and distinct offense. This section shall not apply to any to\\n which may be exempt from the law regarding the inspec- tion of buildings. 1905, c. 506, s. 28. 3799. Removing notice from condemned buildings. If any per- son shall remove any notice which has been affixed to any building by the local inspector of any city or town, which notice shall state the dangerous character of the building, be shall be guilty of a misde- meanor, and be fined not less than ten nor more than fifty dollars for each offense. 1905, c. 506, s. 15. 3800. Street cars to have vestibule fronts. If any city and street passenger railway (•. s. fi. 3808 CRIMES— A'A'X 17//. Sales. Cb. 81 3808. Commercial feeding stuffs. If any person shall violate any regulation adopted by tbe board of agriculture for the enforce- ment of tbe law in reference to sale of concentrated commercial feed- ing stuffs, be sball be guilty of a misdemeanor. 1903, c. 32.5, s. 5. 3809.' Corn, in certain counties, if any person sball buy, sell, deliver, or receive for a price or for any reward whatever, any corn in the ear or shelled of a less amount than five bushels, between tbe hours of sunset and sunrise, be sball be guilty of a misdemeanor, and upon conviction be punished by a fine not exceeding fifty dollars or imprisoned not exceeding thirty days. In all prosecutions under this section it sball only be necessary for the state to allege and prove that tbe defendant bought or received the corn as charged, and the burden sball be upon tbe defendant to show that tbe provisions of this section have been complied with: Provided, this section shall only apply to the counties of Beaufort, Hyde, Martin, Tyrrell, Washington, Pamlico, Halifax and Edgecombe. 1889, c. 90; 1891. c. 0; 1891. c, 8. 3810. Corn meal. If any person shall pack for, sale, sell or offer for sale in this state any corn meal except in bags oi- ])ackages con- taining by standard weight two bushels or one bushel or one-half bushel or one-fourth bushel or one-eighth bushel respectively, each bag or package of corn meal shall have plainly printed or marked thereon whether tbe meal is "bolted'' or "unbolted," tbe amount it contains in bushels or fraction of a bushel, and the weight, be shall be guilty of a misdemeanor and fined not exceeding fifty dollars, or imprisoned not exceeding thirty days : Provided, the provisions of this section shall not apply to the retailing of meal direct to cus- tomers from bulk stock when priced and delivered by actual weight or measure. 1905, c. 126, .«s. 2, 3. 3811. Cotton; inspection and sale of, in certain counties, if any buyer of baled cotton shall fail to inspect all baled cotton when purchased and before the same is delivered, or shall make any deduc- tion from the price agreed to be paid therefor on account of any in- spection made after delivery of tbe same, be sball be guilty of a mis- demeanor, and upon conviction thereof shall be fined not more than fifty dollars or imprisoned not exceeding thirty days. This .section sball apply only to the counties of Stanly, Cabarrus, Montgomery, .Vnson, Catawba, Ilichniond and Rowan: Provided, this section shall not have the effect to prevent a deduction or rebate on the ]irico agTeed for fra\idulent l)nling nr ]incking of cotton or to prevent an 3811 CRIMES— ZXA' 17/7. Sales. Ch. 81 indictment for false pretenses in the counties of Montgomery, Rowan and Stanly. 1891, c. 287; 1899, c. 3-20. 3812. Cotton in seed, and peanuts; sale of. if any person shall buy, sell, deliver or receive for a jirice, or for any reward whatever, any cotton in the seed where the quantity is less than what is usually baled, or any peanuts, and shall fail to enter ujion a book to be kept by him for such purpose the date of such buying or receiving, the num- ber of pounds in each lot, the person or persons from whom bought or received, the name of the owner of the land on which such cotton is raised, and the price paid for the same per pound, which book shall be open to inspection by the public at all business hoiirs of the day, he shall be guilty of a misdemeanor, and upon conviction be punished by a fine not exceeding fifty dollars or imprisoned not exceeding thirty days. In all prosecutions under this section it shall only be neces- sary for the state to allege and prove that the defendant bought or received the seed cotton or peanuts as chai-ged, and the burden shall be upon the defendant to show that the provisions of this section have been complied with. 1887, e. 199; 1905, cc. 201, 523. 3813. Cotton; sale of, at night. If any person shall buy, sell, deliver or receive, for a price, or for any reward whatever, any cot- ton in the seed, or any unpacked lint cotton, brought or carried in a basket, hamper or sheet, or in any mode where the quantity is less than what is usually baled, or where the cotton is not baled, between the hours of sunset and sunrise, such person so offending shall be guilty of a misdemeanor. On conviction, in Mecklenburg and iSTash counties, the offender shall be imprisoned not less than three mouths nor more than twelve months, and shall also be liable to a penalty of two hundred dollars, one-half of which shall go to the party suing for same and one-half to the public schools of the county. Code, s. lOOG: 1873-4, c. 62; 1874-5, c. 70; 1905, c. 417. 3814. Cotton-seed meal; sale of, not having been inspected. If any person shall sell or otter for sale any cottoii-soed meal, which has not been inspected and branded as required by law, (U* shall sell any cotton-seed meal containing a less quantity of annnonia than is authorized by law, or shall violate any regulation or rule made by the state board of agricultiire regulating the sale, iiispection, brand- ing or tagging of cotton-seed meal, lie shall be guilty of a misde- meanor. 1903, c. 339, ss. 3-5; 1905, c. 207, s. 0. 3815 CRIMES— ZXZF7//. Sales. Ch. 81 3815. Cotton weigher failing to file oath. Every public weigher of cotton shall, before entering on the duties of his otfice, make and subscribe the oath prescribed for cotton weighers, which, when made, shall be filed in the office of the register of deeds for the county in which the person acts as weigher, and said register shall make a note of the same, aild any person acting as weigher without mak- ing and filing the oath, shall be guilty of a misdemeanor, and shall be fined twenty-five dollars for every bag, bale, or package of cotton which he shall have unlawfully weighed before being qualified to do so. Code, s. 1008; 1874-5, c. 58, s. 2. 3816. Cotton, weighing of. If any weigher or purchaser of cot- ton shall make any deduction from the weight of any bag, bale or package of lint cotton, for or on account of the draft, turn or break of the scales, steelyards, or other implement used in weigliing the same, or for any other cause except as herein allowed, the person so offending shall be gviilty of a misdemeanor, and fined three hundred dollars or imprisoned, in the discretion of the court: Provided, that the weigher may make such proper deduction as shall be agreed on by him, and the seller, or his agent, for water, dirt or other foreign substance, in or on such bag, bale, or package of cotton, or for other just cause. Code, s. 1007; 1874-5, c. 58, ss. 1. 3. 3817. Dynamite; selling, without a license. If any dealer or other person shall sell, or keep for sale any dynamite cartridges, bombs, or other combustibles of a like kind, without first having obtained from the board of comrnissioners of the county where such person or dealer resides a license for that purpose, he shall be giiilty of a misdemeanor. 1887, c. 364, ss. 1, 4. 3818. Fertilizers containing matter not available as plant food. If any person shall wilfully sell or offer for sale any fertilizer or fertilizer material which contains hair, hoof-meal, horn, leather scraps or other deleterious substances not available as food for plants, but in which said forbidden materials aid in making up the required or guaranteed analysis, he shall be guilty of a misde- meanor. 1901, e. 470, s. 9. 3819. Fertilizers; officers and agents of transportation com- panies to furnish information. If any ofllcer. agent, or manager of any railroad, steamboat or other transportation company tran.s- porting fertilizers or fertilizing material into this state shall, when 381!) CKT:\[ES— XAM'F///. Sales. Ch. M required by the dciiartiueut nf agriculture so to do, fail or refuse to furnish monthly statements of the quantity of such fertilizers with the names of the consignor and consignee and the name of the brand delivered on their respective lines at all jioints within this state, or shall fail or refuse to submit the books of such transportation com- pany for examination, he shall be gaiilty of a misdemeanor. 1901. c. 479, s. 10. 3820. Fertilizers; removal or sale of, after condemned. If any fertilizer shall be condemned, as by law provided, it shall be the duty of the agricultural department to have an analysis made of the same and cause printed tags or labels expressing the true chemi- cal ingredients of the same to be put upon each bag, barrel or pack- age, and shall fix the commercial value thereof at which it may be sold, and any person who shall sell, offer for sale or remove any such fertilizer, or any agent of any railroad or other transportation com- pany who shall deliver any such fertilizer in violation of this sec- tion shall be guilty of a misdemeanor. 1901, c. 479, s. 8. 3821. Fertilizers; violation of regulations. If any person shall wilfully violate any regulation made by the commissioner and board of agTiculture concerning the sale of commercial fei'tilizcrs, seeds, and food ])roducts, be shall be guilty of a misdemeanor. 1901, c. 479, s. 4, sHbsec. 9. 3822. Fertilizers, without tags, if any person shall sell or offer for sale any fertilizer or fertilizing material not having attached thereto the tags and labels required by law, he shall be guilty of a misdemeanor. 1901, c. 479, s. 5. 3823. Future delivery contracts. If any person shall become a party to any contract for the sale and future delivery of any article of personal property in which it is not intended by the parties thereto that such property shall be actually delivered, but the differ- ence between the contract price and the market price on the day of delivery shall be paid in money, or if any pei'son shall be the agent, directly or indirectly, of any such party in making or furthering or effectuating the same; or if any agent or officer of any cor])()ra- tion shall, in any way or manner, knowingly aid in making or furthering any such contract to which such corporation .shall be a party, he shall be guilty of a misdemeanor, and on conviction shall be fined not less than one hundred dollars nor more than five liun- dred dollars, and may lie imprisoned in the discn-tion of the court. 1889, e. 221, s. 3. 3824 CRIMES— A' A' A' ]■///. >^ales. Ch. SI 3824. Future delivery; contract made in another state, if any person shall, wliijc in this stale, consent to become a party to any contract contrary to preceding sections, made in another state, or if any person shall, as agent of any person or corporation become a party to any snch contract made in another state, or in this state do any act, or in any way aid in the making or furthering snch con- tract so made in another state, he shall be gnilty of a misdemeanor, and on conviction shall be fined not less than fifty nor more than two hundred dollars, and may be imprisoned in the discretion of the court. 1889, c. 221, s. 4. 3825. Futures, office for sales of. if any person, corporation or other association of persons, either as principal or agents, shall estab- lish or open an office or other place of business in this state for the purpose of carrying on or engaging in any business of making con- tracts to sell and deliver any cotton, indian corn, wheat, I'ye, oats, tobacco, meal, lard, bacon, salt jjork, salt fish, beef cattle, sugar, cof- fee, stocks, bonds, and choses in action, at a place and at a time specified and agreed upon therein, to any other person, whether the person to whom such article is so agreed to be sold and delivered shall be a party to such contract or not, when, in fact, and notwith- standing the terms expressed of such contract, it is not intended by the parties thereto that the articles or things so agreed to be sold and delivered shall be actually delivered, or the value thereof paid, but it is intended and understood by them that money or other thing of value shall be paid to the one party by the other, or to a third party, the party to whom such paj'ment of money or other thing of value shall be made to depend, and the amount of such money or other thing of value so to be paid to depend upon whether the market price or value of the article so agreed to be sold and delivered is greater or less at the time and place so specified than the price stipu- lated to be paid and received for the articles so to be sold and deliv- ered ; or for making contracts commonly called "futures" as to the several articles and things hereinbefore specified, or any of them, by whatever other name called, he shall be guilty of a misdemeanor, and upon conviction thereof shall be fined and imprisoned at the discre- tion of the court. 1880, c. 221, s. 1 ; 1905. o. 538, ss. 1, 2. 3826. Futures, office for sales of; evidence. Xo person shall be excused on any prosecution under the three next preceding sections from testifying touching anything done by himself or others contrary to the provisions of such sections, but no discovery made by the wit- ness upon such examination shall be used against him in any penal 1117 3826 CRT]\[ES— ZZXTV/7. Snles. Ch. M or criminal prosccMitioii, and lie shall be altoji'ether panloned of the offense so done or participated in by hini. In all such prosecutions proof that the defendant was a party to a contract as agent or princi- pal to sell and deliver any article, thing or property specified or named in such sections, or that he was the agent, directly or indi- rectly, of any party in making, furthering or effectuating the same, or that he was the agent or officer of any corporation or association or person in making, furthering or effectuating the same, and that the article, thing or property agreed to be sold and delivered was not actually delivered, and that settlement was made or agreed to be made upon the difference in value of said article, thing or property shall constitute against such defendant prima facie evidence of guilt. Proof that any person, corporation or other association of persons, either as principals or agents, has established an office or place where are posted or published from information received the fluctuating prices of grain, cotton, provisions, stocks, bonds and other commodi- ties, or of any one or more of the same, shall constitute prima facie evidence of being guilty of violating the three preceding sections. 1905, c. 538, ss. 3, 4, 6. 3827. Obstructing inspector of concentrated feeding stuff in duties. If any person shall impede, obstruct, hinder or otherwise prevent or attempt to prevent any inspector or other person in the performance of his duty in collecting samples, or otherwise in con- nection with the inspection or sale of concentrated feed stuffs, he shall be guilty of a misdemeanor, and be fined not more than fifty dollars or imprisoned not more than thirty days. 1903. e. 325, s. 8. 3828. Oleomargarine sold without label. If any person shall sell, keep for sale, or oft'er for sale any oleomargarine or buttcrine, without having securely affixed on each package, tub or firkin thereof, a label on which shall be printed in large roman type the chemical ingredients and the proportions thereof, he shall be guilty of a misdemeanor, and upon conviction shall be fined not less than fifty dollars, or be imprisoned not exceeding thirty days; and for each subsequent offense be fined not less than two hundred dollars or imprisoned not less than six months, or both, in the discretion of the court. For the purposes of this section any article manufac- tured or compounded in imitation or semblance of butter, or wliich shall be composed of any ingredient in combination witli butter, shall be deemed to be oleomargarine and buttcrine. 1896, c. 106. 3829. Poisons; sale regulated. If any person shall retail any poison ciuimerated in schedules A and B of this section, without .'5829 ORniES— XXXVIII. Sales. Ch. 81 distinctly labelling the bottle, box, vessel or paper in which said poison is contained, with the name of the article, the word "poison," a vignette representing a skull and bones, and the name and place of business of the seller; or if any person shall sell or deliver any poison ennmerated in said schednles A and B, unless upon due inquiry it be found that the purchaser is aware of its poisonous na- ture, and represents that it is to be used for a legitimate purpose; or if any person shall sell any poison included in schedule A without, before delivering the same to the purchaser, causing an entry to be made in a book kept for that purpose, stating the date of tbe sale, the name and address of the purchaser, the name and quantity of the poison sold, the purpose for which it is represented by the pur- chaser to be required, and the name of the dispenser, such book to be always open to proper authorities for inspection, he shall be gTiilty of a misdemeanor and be liable for all damages arising from such sale. SCHEDULE A. Arsenic and its preparations, corrosive sublimate, white precipi- tate, red precipitate, biniodide of mercury, cyanide of potassium, hydrocyanic acid, strychnine, and essential oil of bitter almonds. SCHEDULE B. Aconite, belladonna, colcbicum, conium, nux vomica, henbane, savin, ergot, cotton root, cantharides, creosote, digitalis, and their pharmaceutical preparations, croton oil, chloroform, chloral hydrate, sulphate of zinc, carbolic acid, oxalic acid, opium and its prepara- tions, except paregoric and other preparations of opium containing less than two grains to the ounce, and other deadly poisons. This section shall not apply to the dispensing of poison in usual doses and by physicians' prescriptions, nor to the sale of poisons by phy- sicians in their actual practice, upon their own prescription ; nor to the sale of such poisons by wholesale to pharmacists. Code, ss. .3143, .3144; 1881, c. 3.5.5. ss. 9, 10. 3830. Spirits of turpentine, adulteration of. if any person shall adulterate or caiise to be adulterated, any spirits turpentine, or shall knowingly sell or offer for sale as pure spirits turpentine, any adulterated spirits turpentine, he shall be guilty of a misde- meanor, and upon conviction shall be fined not less than fifty dol- lars, or imprisoned for thirty days. 1897, e. 482. 3831. Warehouse, unlawfully disposing of property stored in public. If any person unlawfully sells, pledges, lends or in any :j.s;n CRniES— -VA'Xl'///. Sales. Cli. si otlier way disposes of or permits or is a party to the unlawful sell- ing, pledging, lending, or other disposition of any goods, wares, mer- chandise, or anything deposited in a ]^ublic warehouse without tin authority of the party who deposited the same, he shall be punished by a fine not to exceed two thousand dollars and by imprisonment in the state's prison for not more than three years, but no ofhcer, manager or agent of such public warehouse shall be liable to the penalties provided in this section, unless with the intent to injure or defraud any person, he so sells, pledges, lends, or in any other way disposes of the same, or is a party to the selling, pledging, lending or other disposition of any goods, wares, merchandise, arti- cle or thing so deposited. 1901, c. 678, s. 11. 3832. Weapons to a minor. If any jierson shall knowingly sell or otfer for sale, give or in any way (lisjMise of to a uiiiicir any ])istol or pistol cartridge, brass knncks, bmvie-knifc, dirk. In^nlcd caue, or sling-shot, he shall be guilty of a misdemeanor. 189.3, c. 514. XXXIX. Schools. 3833. Agents for sale of supplies not to be officers. If any member of any biiard nf directurs, bnard of managers, board of trustees of any of the educational, charitable, eleemosynary or penal institutions of the state, or any member of any board of education, or any county or district superintendent or examiner of teachers, or any school trustee of any schofil or other institution supported in whole or in part from any of the public funds of the state, or any officer, agent, manager, teacher or employee of said boards shall have any pecuniary interest, either directly or indirectly, proximately or remotely, in supplying any goods, wares or merchandise of any nature or kind whatsoever for any of said institutions or schools; or if any of said officers, agents, managers, teachers or employees of said institution or school or state or county officer shall act as agent for any manufacturer, merchant, dealer, publisher or author for any article of merchandise to be used by any of said institu- tions or schools; or shall receive, directly or indirectly, any gift, emolument, reward or promise of reward for their inthience in recommending or procuring the use of any manufactured article, goods, wares or merchandise of any nature or kind whatsoever to any of the said institutions or schools, ho shall be forthwith removed from his position in tlie ]mblic service, and shall upon conviction be deemed guilty of a misdemeanor and fined not less than fifty ;3S;3;i CHIMES— ZXZ7Z. ScJwols. Ch. 81 dollars nor more than five liimdred dollars and he imprisoned, in the discretion of the eoxirt. 1899, e. 732, s. 73; 1897, c. 543. 3834. Books; selling, at greater than contract price. If any dealer, clerk, or aaent shall scdl any hook adopted hv the text-hook commission for a greater price than the contract ]:)rice he shall he guilty of a misdemeanor, and upon conviction shall be punished by a fine not exceeding fifty dollars. 1901, c. 1, s. 19. 3835. Buying supplies from interested officer. If any county board of education or school connnittee shall buy school supplies in Avhich any member has a pecuniary interest, or if any school ofti- cers or teachers shall receive any gift, emolument, reward or prom- ise of reward for influence in recommending or procuring the use ■ of any school su]jplies for the schools with which they are connected, such person shall be removed from his position in the public service and shall, upon conviction, be deemed guilty of a misdemeanor. 1901, c. 4, s. 69. 3836. Census returns, false. If any person who is a member of the school committee of any district, as such, shall knowingly and wilfully take false or inaccurate census, or make a false or inaccurate return or repoi't to the county superintendent of pub- lic instruction of the number of children in his district between the ages of six and twenty-one, he shall be deemed guilty of a mis- demeanor, and upon conviction thereof shall be fined and impris- oned at the discretion of the court. 1889, c. 353. 3837. Duty, failure of officer to discharge. If any officer shall fail to perform any of the duties rotpiired of him, in regard to the appropriation or distribution of tlie fund to bring the schools up to a four months' term or shall knowingly make any misrepresenta- tion of facts in any report required of him in reference to such fund, he shall be guilty of a misdemeanor, and upon conviction shall be removed from his office and fined or imprisoned, in the discretion of the court. 1903, c. 751, s. 8. 3838. Disturbing. If any person shall wilfully interrupt or dis- turb any public or private school or temperance society or organi- zation or any meeting lawfully and peacefully held for the purpose of literary and scientific improvement, or for the discussion of tem- perance or question of moral reforn:, cither within or without the Rev. Vol. 1—07 1121 3838 CRIMES— A"XA7X. Schools. Ch. 61 place where such meeting or school is held, or injure any school building, or deface any school furniture, apparatus, or other school property, or property of any temperance society or organization, he shall be guilty of a misdemeanor, and fined not exceeding fifty dol- lars or imprisoned not more than thirty days. Code, s. 2592; 1885, c. 140; 1901, c. 4, s. 28. 3839. Treasurer failing to report. If any treasurer of the county school fund shall fail to make reports required of him at the time and in the manner prescribed, or to perform any other duties required of him by law, he shall be guilty of a misdemeanor, and be fined not less than fifty dollars and not more than two hun- dred dollars, or imprisoned not less than thirty days, nor more than six months, in the discretion of the court. 1901, c. 4, s. 53. 3840. Witness failing to appear and testify. If any witness shall wilfully and without legal excuse fail to appear before the county board of education to testify in any matter under investiga- tion by the board, he shall be guilty of a misdemeanor, and fined not more than fifty dollars or imprisoned not more than thirty 1901, c. 4, s. 15. XL. Sunday. 3841. Fishing with nets on. If any person fish on Sunday with a seine, drag-net or other kiiid of net. except such as is fastened to stakes, he shall be guilty of a misdemeanor, and fined not less than two hundred nor more than five hundred dollars or imprisoned not more than twehe months. Code, s. 1116; 18S3. c. 338. Note. This section does not apply to Onslow county so far as established ?eines are concerned. 1885, c. 171; 1889, e. 23. 3842. Hunting on. If any person shall, except in defense of his own jjroperty, hunt on Sunday with a dog, or shall be found off his premises on Sunday, having with him a shotgun, rifle or pistol, he shall be guilty of a misdemeanor, and pay a fine not exceed- ing fifty dollars, or be imprisoned not exceeding thirty days. Code, s. 3783; 1808-9, c. 18, ss. 1, 2. 3843. Hunting wild fowl on Sunday, and at night, if any per- son shall hunt or shoot wild birds or fowl on Sunday; or hunt or shoot them, except crows and hawks, on any day of the week after the hour of sunset and before the hour of daylight, with gun or fire, 3843 CKIMES— ZL. Sunday. Ch. 81 or use any guu other than can be fired from the shoulder, he shall be guilty of a misdemeanor, and fined not less than one hundred dol- lars or imprisoned not less than thirty days. Code, ss. 2837, 2838; 1885, c. 30; 1870-1, c. 27, s. 2; 1874-5, c. 259. 3844. Running trains on. If any railroad company shall per- mit the loading or unloading of any freight car on Sunday, or shall permit any car, train of cars, or locomotive to be run on Sunday on any railroad, except such as may be run for the purpose of transporting the United States mails, and passengers with their baggage, and ordinary express freight in an express car exclusively, j and such as may be run by law, such railroad company shall be guilty [ of a misdemeanor in each county in which such car, train of cars or locomotive shall run, or in which any such freight car shall be loaded or unloaded, and upon conviction shall be fined not less than five himdred dollars for each offense: Provided, that the word Sun- day in this section shall be construed to embrace only that portion of the day between sunrise and sunset ; and that trains in transitu, having started on Saturday, may, in order to reach the terminus or shops, run until nine o'clock a. m. on Sunday, but not later, nor for ■ any other purpose than to reach the terminus or shops. Code, s. 1973; 1897, c. 126; 1879, cc. 97, 203. XLI. Telegraph and Telephone. 3845. Lines, interfering with. If any person shall unnecessarily disconnect the wire or in any other way render any telephone line or any part of any such line unfit for use in transmitting messages, or shall unnecessarily cut, tear down, or destroy, or in any way ren- der unfit for the transmission of messages any part of the wire of a telephone line, he shall be guilty of a misdemeanor, and on con- viction thereof shall be fined or imprisoned in the discretion of the court for a term not exceeding two years. 1901, c. 318. 3846. Message; obtaining knowledge of contents. If any per- son wrongfully obtain, or attempt to obtain, any knowledge of a telegraphic message by connivance with a clerk, operator, messen- ger, or other employee of a telegraph company; or, being such clerk, operator, messenger, or other employee, wilfully divulge to any but the persons for whom it was intended, the contents of a tele- graphic message or dispatch intrusted to him for transmission or delivery, or the nature thereof, or wilfully refuses or neglects duly to transmit or deliver the same, he shall be guilty of a misde- meanor. 1889, c. 41, s. 1. 1123 3847 CUUl'ES—XLI. Telegraph aiid Telephone. Cli. M 3847. Poles and wires, injury to. If any person shall wilfully injure, or destrov, or pull down any telegraph or telephone pole, wire, insulator or any other fixture or apparatus attached to a tele- graph or telephone line, he shall be giiilty of a misdemeanor, and fined and imprisoned at the discretion of ihe court. Code, s. 1118; 1881, c. 4; 1883, c. 103. 3848. Telephone message, obtaining knowledge of. If any person wrongfully obtain, nr attempt to obtain, any knowledge of a telephonic message by connivance with a clerk, operator, messen- ger or other employee of a telephone company; or, being such clerk, operator, messenger or other employee, wilfully divulges to any but the persons for whom it was intended, the contents of a tele- phonic message or dispatch intrusted to him for transmission or delivery, or the nature thereof, he shall be guilty of a misdemeanor, and fined or imprisoned, or both, in the discretion of the court. 1903, e. 599. 3849. Trees, felling, on wires. If any person shall negligently and carelessly cut or fell any tree or any limb or branch therefrom in such a manner as to cause the same to fall upon and across any telephone wire or electric light wire, and from which any injury to such wire shall be occasioned, he shall be guilty of a misdemeanor, and shall also be liable to a penalty of fifty dollars for each and every offense. 1903, e. 616. XLII. Teademaeks. 3850. Forgery and counterfeiting; selling goods with counter- feit marks. If any person shall vend any goods, wares or mer- chandise having thereon any forged or counterfeite — 120!) 1120—3688 1179—3149 1243—3285 39S."i 1121—3746 1180-3208 1244—3280 1300—3980 1122-3418 1181—3280 1245—979 1301—3987 1123—3559 1182—3150 980 1302— 3985a 1124—3176 1183—3254 1246—989 1303—3988 1125- 3181 1184—3243 1247—993 1304—3989 1126—3178 1185—3246 1248—994 1305-3990 1127—3179 1186—3248 1249—987 130G— 3991 1128—3180 1187—3249 1250—990 1307—3992 1129—3177 1188—3250 1251—1598 1308—3993 1130—3182 1189—3255 1252—986 1309—3994 1131—3183 1190—3251 1253-988 1310—3995 1132—3156 1191- 3253 1599 1311—3990 1133—3157 1192-1628 1254—982 1312—3997 1134—3158 1193—3234 1255—1131 1313—3998 1135—3159 1194—3239 1256—952 1314—3999 1136—3160 1195—3267 1257—957 131.5—4000 1137—3161 1196—3235 1258—991 1310—4001 1138—3190 1197—3236 1260—1009 1317—4002 1139—3190 1198—3262 1261—1009 1318—4003 3207 1199—3263 12G2— 1022 1319—4004 1140—3212 1200—3264 1263—1023 1320—4005 1143—3162 1201—3153 1264—976 1321—4000 1144—3192 1202—3272 1265—1036 1322—4007 1145—3194 1204—1296 1266—1008 1323— 12(>8 1140—3193 1205—3220 1207-950 1324^028 3194 1206—3221 951 1325-1578 1147—3196 1207—3222 1268—996 1326—1579 1148—3197 1208—3217 1269—985 1327—1581 1149-3195 1209—3218 1270—963 1328—1582 1150—3193 1210—3219 985 1329—1583 1151—3199 1211—1291 1271—1046 1.330—1.584 1152—3202 1212—401 1272—958 1331—1585 3203 1213—402 1273-1039 13.32—1.586 1153—3198 1214—3152 1040 1334—1587 1154—3204 1215—1637 1274—1040 133.5—1.588 1155-3232 1216—3165 1275—983 13,36—1000 1156—3202 1217-3166 1270—1037 1337—1001 1157—3205 1218—3167 1277—1505 1338-1.594 1158—3206 1219—3169 1278—949 13;!9— 1.592 1159—3154 1220—3170 1280—946 1.340—1593 11 GO— 3209 1221—3172 1281—1556 1.341-1.590 llGl— 3210 1222—3174 1282-1557 1.342—1616 11G2— 3211 1223—3175 1283—1500 1.34.3—1618 1163-3230 1224—3168 12S4— 2083 1344—1619 11G4— 3231 1223—3214 1285—1501 1.34.5—285 1105-3184 1226—3171 1280—1562 1346-1600 UGG- 3185 1227—3215 1287-1563 1.347—628 1107—3186 1228—3216 1288—1564 1.348—1602 1168—3187 1229—3260 1289—1559 1349—1020 U 09-3 188 1230—3226 1290—1505 1350—1028 1170—3189 1231—3227 1291—1566 1351—10.30 1171—3163 1232—3228 1292—1567 i;;.52— n;2(i COMPAEATIVE NUMBEKS. Rev. Code. Rev. Code. Rev. Code. Rev. 3—1634 1409—61 1468—123 1529—53 4—1635 1410—63 1409—124 1530—54 5-1639 1411-03 1470—125 1531—55 0-1643 64 1471—126 1532—56 7—1652 1412—67 1472—127 1533—57 8—1645 1413—65 1473—128 1534 — 58 9^1646 1414—66 1474—130 1535—86 0—1647 1415—170 1475—131 1536—138 1—1648 1416—87 1476—173 1537—139 2—1649 1417—88 1478—132 1538—140 ;— 1650 1418—88 1479—4 1539—141 +— 1651 1419—90 1480—7 1540—142 ->— 1301 1420-89 1481—8 1541—143 ;— 1640 1421—39 1482—9 1.542—171 7—1644 1422—39 1483—133 1543—145 S— 1298 1208 1484—134 1544—146 )— 1299 1423—40 1485—135 1545—960 0—1300 1424—41 1486—136 1546—961 1—1642 1425—91 1487—137 1547—962 2—1641 1426—92 1488—147 1548—964 3—1657 1427—93 1489—148 1549—965 4—16 1428—94 1490—156 1550—966 5—17 1429—97 1491—157 1551—1939 0—3 1430—69 1492—83 1552—974 7—5 1431—51 1493—82 155.3—975 8—5 1432—95 1494—2 1554—970 11 143.3—172 1495—167 1555—977 9—6 1434—168 1496-96- 1550—1758 0—12 1435—67 1497—158 1557—321 1—26 1430-08 1498—59 1558—322 2—27 1437—77 1499—60 1559—1781 3 — 22 1438—74 1500—59 1560—17.59 4—23 1439—75 1501—159 1.561-1760 5—24 1440—78 1502—166 1761 6—25 1441—76 1503—84 1.562—1762 7—29 1442—70 1.W4— 1.53 1563—1763 8—29 1443—79 4283 .1564—1764 319 1444—80 150.5—85 1505—1765 9—18 1445—81 1500—974 1566—1766 0—19 1440—72 1507—160 1507—1767 320 1447—73 1508—161 1.568—1768 1—320 1448—104 1509—162 1509—1769 2—320 1449—105 1510—144 1570—963 3—19 1450—106 1511—129 1570 4—20 1451—107 1512—155 1571—1770 5—21 1452-108 1513—164 1572—1771 6—42 1453—109 1514—105 157.3—1777 7—43 1454—110 1515—28 . 1574—323 8—44 1455—111 1510— .30 1778 9—36 1456—112 1517—31 157.5—1779 99 1457—113 1518—32 1.576—1780 0—100 14.58—114 1519—33 1577—1802 1—101 14.59—115 1520—34 1578-1803 2—103 1460—110 1521—35 1579—1804 3—46 1461—117 1522—1 1.581—324 4^8 1462—118 1523—163 1781 98 146.3—169 1524—149 1582—1782 5—49 1404—119 152.5—150 1.583—1774 6—45 140.5—120 1526—151 1584—1812 7—47 1466—121 1527—152 1.58.5-1813 8-62 1467—122 1528—52 1586—1815 COMPAKATIVE NUMBERS. Code. Rev. Code. Rev. Code. Rev. Code. Rev. 1587—1814 1648—1851 1712—2571 1773—2007 1588—1786 1649—1841 1713—2572 1774—2009 1589-1787 1650—1842 1717—2598 1775—2006 1590—1788 1C51— 1852 3767 1776—2010 1591— 17S9 3581 1718— 4S43 1777—2001 1592—1953 1 652 — 3597 1719 — 1844 1778—1264 1593—1795 1653-3582 1720—4845 1779—2011 1594—1792 1654—3583 1721—3693 1780—2011 1505—179(5 1656—1830 4846 1781—2016 2862 1657—1833 1722—1957 1782—2014 159G— 1790 1658—3155 1723—1957 1783—2017 1597—1791 1659—1845 1980 1 784—2026 1598-1816 1660—1268 1726—1958 1785-2027 1599—1817 1661—18.53 1727—1959 1786—2036 1000—1818 1662—1854 1728—1960 1787—1264 IGOl— 1816 1663—1855 1729-1901 1 788—2032 1G02— 1798 1664—1856 1730—1962 1789—915 1603-1799 1065-1857 1731—1959 2028 1604—1800 1666—1858 1732—1963 2773 1605—1801 1667-1859 3733— 19<;7 1790—2027 1606—1783 1668-1860 1976 1791—2029 1607—1775 1669—1861 1734—1977 1792—2035 1608—1776 1670—1890 1735—1979 179.3—2033 1609-1810 1671—1892 1736—1978 1 794—2030 1610—1811 1672-1893 1737—2798 1795—2031 1611—1797 1673—1891 1738—1973 1796—1998 1612—1808 1674—1896 1739—1974 1797—2024 1613—1809 1675—1897 1740—1975 1798—2025 1614—1784 1676—1894 3602 1799—20.52 1015—1785 1677—1900 1741—1970 1800—20,54 1617—1805 1678—1901 1742—1971 1801—2019 1618-1800 1679—1902 1743—976 1802—2020 1619—1807 1680—1903 1744—1982 180.3—2019 1620—1772 1681—1904 174.5—1983 1804—2041 1621—1773 1682—1905 1746—1986 1805—2042 1622—1794 168.3—1906 1747—1987 1806—2043 1023—1821 1684—1907 1748—1988 1807—2044 1624—1822 1685—1908 1749—1990 1 808—2045 1625—1823 1686—1895 1750—1984 1 809-2082 1626—1824 1687—1898 1751—1991 ISIO— 2083 1627—1825 1688 — 4835 1752—1985 1811—2084 1628—1827 1689—2737 1753-1992 1812—2081 1629-1829 2758 1754—1993 181.3—2086 1630—1829 4836 1 755—1994 1814—2088 1631—1828 1690^837 1756—1995 181,5-2089 1632—1826 1691—48.38 1757—1996 ISKi — 2090 163.3—1831 1692—4839 1758—1997 1817—2087 1634—1843 1693— .3595 1759—3664 3372 1635—1844 4840 3665 IS18— 2091 1636—1832 1696^842 1760—3682 1819—2092 1637—1834 1697—4847 1761—3686 1820—963 1638—1835 1698—2575 1762—1999 1821—985 16.39-1836 1700-2586 176.3-2000 1822-2106 1640—1837 1701—2578 1764—947 1823—2101 1641—1838 1702—2576 1765—1989 1824—2103 1642—18.30 170.3—2577 1766—2001 182,5—2104 1643—1840 1707—2.597 1767—2002 1826—2094 1644—1846 1708—2597 1768—2003 1827—2112 164.-1—1847 1709—2597 1769—2004 1828—2113 1646—1848 1710-2.569 1770—2005 1829—2114 1647—1849 1711—2570 1772—2008 1830—2115 COMPAEATIVE NUMBERS. Code. Rev. Code. Rev. Code. Rev. Code. Rev. 1831—2116 1802—2487 1054-2568 2014—2681 1832—2117 1893—2402 1055—2596 201.5—2712 1833—2105 1894-2491 1056—2590 2016—2715 1834— 2096 1805—2493 1957.-2567 2017—2725 1835— 2107 1896—2494 1958—2604 2018—2726 1836— 2108 1897—2495 1962—2629 2019—2721 1 1837— 2100 1898—2486 1963—2611 ■ 2020—3779 ; 1838— 2102 1899-2406 1964—2631 2021—2716 : 1830— 2098 1900—2407 1965—2630 2022—2717 i 1840— 2097 1901—2498 1968—3762 2023—2683 1 1842^ 2085 2791 1909—2563 2024—2713 1843-2109 1902—2791 1970—2623 3770 1844—2110 2792 1971—2612 2025—2682 1845—2111 1904—2512 3747 2026—2718 1846—2119 1905—2514 1972—3758 2027—2719 1847—2120 1006—2513 1973—2613 2028—2728 1S48— 2121 1007—2518 3844 2029—2695 3679 1008—2516 1974—3756 2030—2722 1849—2122 1900—2517 1975—2601 2031—3783 1850—2123 1010—2702 3753 2032—2723 1851—2124 1011—2499 1976-2647 2033—2724 1852—2125 1912—2500 1977—2600 2034—2696 1853— 212G 1913—2501 1978—2628 2035—2702 1854—2127 1855—1269 1914—2502 1915—2503 1979—3752 2030—2697 1980—2564 2037—2703 2128 1916—2793 1981—1135 3773 1856—2129 1917—2504 1136 2038—2684 1857—2130 1918—2505 1982—2566 2039—1268 1858—2141 1919—2519 1983—2602 2690 1859—2142 1920—2520 1984—2603 2040—2685 1860—2143 1021—2512 1985—2637 2041—2692 1861—2144 2515 1986—2638 2042—2693 1862—2145 1922-2791 1987—2639 2043—2714 1863—2794 1923—2485 1988—2605 2044—2720 1864—1554 1932—2548 1989—2606 204.5—2706 1865—021 1933—2540 1990—2607 204G— 2707 1860-923 19.34—2550 1991—2608 2047—2708 1870—2365 1935—2551 1992—2609 2048—2709 1871-2366 1936—2552 1993—2610 2049—2710 1872—2368 1937—2553 1994-2574 2050—3774 1873—2367 1938—2554 1995—2640 2051—2701 1874—308 1939—2555 1996-2558 2052—2699 1875—309 1940—2556 1997—2559 2053-2608 1876-310 1941—2557 1098-2500 2054—2700 1877—311 1942—2018 1999—2561 3775 1878—312 1943—2579 2000—2562 205.5—2705 1870—313 1JM4— 2580 2001—2648 2056—1268 1880—3573 2581 3760 2686 1881—312 2582 2002—3760 2057—2694 314 2583 2004—1235 2058—2711 1882—278 1945-2584 2005—2565 3781 1883—281 1 940-2585 2006—984 20,59—2726 1884—282 2587 2007—1571 2060—2704 1885-316 2790 2008-1572 2061—2727 1S86— 317 1947—2591 2009—1573 2062—2687 1887—315 1948—2592 2579 2063—2688 318 1949—2593 2010—1574 2064—2689 1888-286 1950—2594 2011—1575 206.5—3784 1880 — 283 1951—2595 2012—1576 2066—2812 1890-284 1952—2599 201.3—1269 2067—2809 1891- 279 1953—2573 1577 COMPARATIVE NUMBEES. CkxJe. Rev. Code. Rev. Code. Rev. Code. Rev. 2068—2809 2130—3106 2209 — 4429 2281—217 2812 2131—3107 2210—2757 2282—218 2069—2809 2132—3108 2211—4433 2283—219 2070—298 2133—3109 2214—3863 2284—220 2071—2811 2134—1268 2215—3864 2285—221 2073—298 3110 2216—3865 2288—3544 2074—2813 ■ 2135—2777 2217—3866 2289—5315 2075—2814 2788 2218—3867 2290—5316 2070—2815 2136—3113 2219—3867 2291—5317 2077—2810 2137—3111 2220—3868 2292—5318 2078—2777 2138—3112 2221—3869 2293—5319 2079—2817 2139—3114 2222—3870 2297—3880 2080—2821 2140—3140 2223—3873 2301—5006 2081—2816 2141—3141 2224—3874 2302—2806 2082—2829 2142—3142 2225—3875 5om 2083—2823 2143—3143 2226—3876 2303—2806 2084—2828 2144—3144 2227-^187 5008 2085—2824 2145—3145 4542 2304—5013 2087—2827 2146-3119 2228-^188 2305—5010 2088—2820 2147—3120 2229—4189 2306—291 2089—2777 2148-3127 2230^190 2307—3742 2090—2777 2149—3126 4200 2308—3742 2091—3592 2150-3128 2231—4191 2309—5016 2092 — 2826 2151—3122 2232—4193 2310—5017 3587 2152—3123 2233 — 4194 2311—5018 2093—2842 2153—3125 2234—4195 2312— .5009 2094—2844 2154—3124 223.5^4196 2313—3745 2095—2845 2155—3131 5370 2314— .5009 2096—2843 2156—3133 2236—4197 5015 2097—2846 2157—3130 2237^198 2315—5015 2098—2847 2158—3135 2238—4199 "5316— ,5014 2099—2848 2159—3136 2240 — 4.542 2317—3028 2100—2840 2160—3137 2241 — 4.543 2318—3315 2101—2841 2161—1268 2242—4544 2325—3323 2102—3083 2162—5 2243—4544 2326—2645 2103—3084 2163—10 2248 — 4554 2331— .3913 2104—3082 2164—13 2249—4561 2332—3914 2105—3082 2165—6 2250—4564 233.3—3915 2106—3085 2166—14 2251— .5370 2334— .3916 2107—3086 2167—15 4505 2335—3917 2108—3080 2168—3146 4553 2336—3919 2109—3081 2169—29 2252—4567 2337—3920 2110—3087 2170—37 2253-^562 2338— ,3918 2111—3088 2171—38 22.54—4551 2339—3921 2112—3088 2172—36 4559 2340—3921 2113—3089 2173-3129 2256-^575 2341—3560 2114—3090 2174—3139 4576 3921 2116—3091 2175—1603 2257—4580 2342—3922 2117-3095 2176-3115 2258—4580 2343—3923 2118—3092 2177—3116 22.59—4590 2344-3023 2119—3093 2178—3117 2261—4.563 2345—3924 2120—3096 2179—3118 2262—4574 2482 — 3290 2121—3097 2180-3138 2266 — 4555 2483—3301 2122—3098 2181—1607 2268 — 4552 2484— .3311 2123—3099 2182-1608 2269-1980 2485—1682 2124—3100 2183—1609 2270 — 4568 2486—3302 2125—3101 2184—3931 2271—4,554 2487—3300 2126—3102 2185—3930 2272 — 4558 2488—3295 2127—3103 2199-3943 2278—4573 2489—3200 2128—3104 2202—2459 2279 — 4582 2490—329!! 2129—3105 2208—3937 4594 2493—37 1 1 COMPAEATIVE NUMBEES. Code. Rev. Code. Rev. Code. Rev. Code.' Rev. 2494—3712 2640—4277 2785—1738 2849 — 4404 2495—1659 2641—4277 2786—1748 2850—4406 2496—1659 2642—4277 2787—1749 2851 — 4407 2499—3305 2643—4277 2788—1750 2852—3570 '2r,(lO— 3304 2644^278 2789—2631 285,3—4412 :j..(ll— 3303 2645—4279 2795—3669 2854—3692 ■J.-.(I2— 3501 2640—4280 2796—3668 2855—4400 J..():!— 4030 2647—4281 2799—1660 2856^413 -.-,114^031 2048-4281 2800—1664 2857—3611 ■J.llir>— 4032 2049—4281 2801—1665 28.58—4415 li.'iiK;— 4033 2651—4180 2802—1671 2859 — 4416 ■J.-,(I7— 4034 4186 280.3—1666 2S60— 2803 ■_',-,()H— 4030 2052-^180 2804—1667 4414 2509—403!) 418G 2805—1668 2861—4418 2510—4040 26.5.3—4181 2800—1669 2862^417 2'51 1—4041 27.51—1693 2807—1670 2863-^428 2512 4042 1694 2808—1663 2864—4408 404.^ 1690 2809—1663 5373 2513— 4040 2752—1697 2810—1063 2865 — 4410 4040 2753-1698 2811—3319 5373 2514—4049 .3414 2812—1672 2866—4411 251.5— 40.S7 3415 281.3—1673 5373 4049 2754—1692 2814—1674 2867 — 1420 2516—4051 2755—1699 2815—1676 2868-2732 2517 — 1038 2756—1700 2816—1679 4421 2523^043 2757—1701 2817—1680 2869—4425 2524—4044 2758—304 2818—3312 2870-^426 252.5^045 2759—1704 2819—3310 2871-2730 2526—4052 2760—1703 2820—3411 2734 2527—4047 2761—1743 3412 4427 2528—4048 2762—303 2821—1678 2872—2730 2529—4049 276.3—1720 2822—1681 287.3—2735 2530—4037 2764—1733 282.3—1683 2874 — 4405 2534-^050 2765—1707 2824—1685 287.5^435 2.592—3838 1708 282.5—1686 2876—4437 2610 — 4260 1709 2826—1677 2877—1436 2611^261 1713 £827 — 3322 2878—4440 2012—4265 2801 2828-3321 2879—4444 261.3—4264 2766—1731 2829—3320 4445 2614—4262 2767—1710 2831—3480 2880—4446 2615—4263 2768—1712 2832—1881 2881^440 2616—4269 2769—1716 3466 l.>882— 4447 2617 — 4266 1717 2834—1884 2883—4508 2618—4209 1718 1885 2884—4450 2619—4270 1719 1886 288.5-^451 2620— 426S 1734 3466 2886^438 2621—4269 2770—1715 283.5—3471 2887—4442 2622 — 4272 2771—1714 2836—3464 2888—3055 2623—4273 2772—1702 2837-34.59 3056 2624—4267 277.3—1711 3843 289.3—4510 262.5—4268 2774—1721 2838—3843 2804—3451 2626-4282 277.5—1705 2839-3479 4511 2627—4283 2776—1706 2840—3477 289.5-4515 2028 — t2S4 2777—1732 2841—1687 2890-^517 2620-4284 2778—1728 2842—1687 2897—4521 2030 — 1200 2779—1729 2843-1688 2898 — 4518 42S5 2780-1730 2844 — 4398 2899—4520 263.3—4275 2781-1740 284.5—4399 2900^519 26.34—4275 2782—1746 2846—4403 2901 — 4514 263.5—4275 278.3—1745 2847—4401 2902—4516 2639—4274 2784—1737 2848-^402 2903^538 COMPAKATIVE NUMBERS. Code. Rev. Code. Rev. Code. Rev. Code. Rev. 2904—4513 2960—1929 3055—4673 3139—4473 2905^537 2961—1928 3057—2360 3140—4475 2906—4536 2962—1927 3058^674 3141 — 4476 2907—4462 2963—1937 3059^675 4477 2908—4461 2964^1940 3060—4676 3143—3829 2909 — 4460 3614 3080—5426 3144— .3829 2910—4535 2965—1938 3081—5429 314.5-3048 2911—4535 2966—1942 .3082—5428 3146 — 4473 2912—4526 2967—1915 3083—5426 3148 — 4468 2913 — 1527 2968—1916 3084—5427 3149—4463 2914—4529 2969—1916 3085—3546 3150—4464 2915—4535 2970—1917 3086—3550 3151—4467 2916 — 1522 2971—1918 3087—3545 31.52—4466 2917—4512 2972— 1918a 3088-2521 3153—4465 2918—4523 2973—1919 3089—2522 3154—3642 2919—4524 2974—1943 3090—2523 3155—4468 2920—4525 297.5—1944 3091—2524 3156—3(542 2921—4528 2976—1945 3092—2524 4470 2922 — 1532 2977—1941 3093—2525 3161—4859 2923—4623 2978—1946 3094—2526 3162—4860 2924—4623 2979—1947 3095—2527 316.3—4852 2925—4630 2980—1948 3096—2528 3165^860 2926—4626 2981—1949 3097—2529 3173^880 2927—4624 2982—5308 3098—2530 3175—4868 4C27 2989^638 3099—2531 3176 — 4870 •2928—4632 3003-^639 3100—2532 3192—294 2929—4629 3004—4640 3101—2533 3200—4900 2930—4633 300.5—4641 3102—2534 3230—4878 2931—4625 3000—4642 310.3—2535 3231—4879 2932—4635 3007—4643 3104—2536 .323.5—3612 2933^635 3009—4644 310.5—2537 3236—4869 2934—4634 3010—4645 3107—25.38 3247 — 4857 2935—1631 3011—4646 3108—2539 3248^856 2936—4635 3012—4647 3109—2773 3256—4852 2937 — 4628 3013—4648 2776 3257-^858 2938— 2G75 3014—4649 3116—3518 3259-^855 2077 301.5—4050 .3519 3261-^898 2678 3016—4651 3119—3365 3263—4859 2679 3017—4652 3120—3365 3264^859 2939—2678 3018-^653 3121—4491 3265—4860 2940—2675 3020^654 3122^502 3206— J861 2676 3021—4655 312.3—4492 3267—4862 2941—2676 302.5^656 3124—4498 3271 — 4880 2942—1930 3036—4657 3125—4499 .3272 — 4881 2943-1930 3037^658 3126—4493 3273—4908 2944—1930 3038-^659 3127-^495 3274—35.30 294.5-1931 3039—4660 3128—4494 3.541 2946—1931 3040—4661 3129—4500 3275—2750 2947— 19.S2 3042^662 3130—4.501 3282—4913 2948—1934 3043 — 4663 3131—4496 328.3 — 4914 2949—1935 3044^664 3133— 1.503 3284 — 4915 2950-1933 304.5—4665 3134—4497 3285 — 1895 2951—1920 3046—3580 313.5 — 4471 3292—4930 29.52—1921 3048—4666 31.36—4472 3293^4953 2953—1922 3049—4667 3137— .3649 3294 — 4953 29.54-1022 3050—4668 .36.50 4954 2955—1923 .3051—4637 3651 329.5 — 4955 2956—1924 4669 3652 3296—4955 2057-1925 3052—4670 3653 3297—4956 2958—19.36 305.3—4671 3654 3298—4957 2959—1926 3054—4672 3138-4473 3299—4955 COMPAKATIVE NUMBERS. Code. Rev. Code. Rev. Code. Rev. Code. Rev. 3300—4953 3360—2740 3429—5395 3528^965 : 3301—3380 5367 3430—5392 3529^966 3302—2146 5378 3432—5398 3535—4972 3303—3.551 3361—5379 3433—5410 3536—4980 3304— 2.347 3362—5369 3435—5400 3537—3560 : 3305—2348 .5363—1552 3437—5399 4982 , .3306—2349 2771 3438—5400 3538—3560 3307—23.50 5380 3440—3517 3540—1327 : 3308-2800 3364—4089 3441—3662 3541—1328 1 3309—2354 3373—1260 3442—5407 3.542—1332 , 3310—2355 337.5—2369 3443—5408 3543—1329 3311—2356 3376—2369 3444—5401 3544—1333 3312—2358 3377—2370 3445—5402 3545—1334 * .3.S1.3— 2.357 3378—2424 3446—5405 3546—1331 3314—2361 3379—2467 3447—5406 3547—1330 3315—2360 3380—2467 3448—1352 3548—4886 3316—2359 3381—2433 3449—5410 3.549^887 3317—5323 3382—2448 3450—3659 3552^888 3318—5324 3383—2439 5411 3553—4891 3319—5325 3384—2460 3451—5412 3554—4890 ;«20— .5328 S385— 1950 .3452—5413 3555—4889 5332 2465 3453—1354 3556—3542 3321—5351 3386—2444 3454—1353 3558—3540 3322—5331 3387—2457 3455—3658 3560^892 3323—5331 3388—2457 3456—1342 3561^893 3324—5332 ' .3389—2400 3457—1351 3562—5019 3325—5327 2457 3603 356.3—5020 .3326—5327 2465 3458—1350 3564—5021 5330 3390—2372 3603 3565—5022 3327—5330 3391—2373 .3459—1349 3566—5023 3328— .5339 3392—2374 .3460—1345 3567—5024 5340 3395—2454 3461—1346 3568-5025 3329—5339 3396—2446 3462—1347 3569—5026 3330—5341 3397—2453 346.3—1344 3570—5028 3331—5342 2455 .3661 3571—5029 33.32—5340 3398—2461 3464—1343 3572—5030 5343 3399-2458 .346.5—1338 357.3—5031 3333—5338 3400—2443 3466—1339 3574—5032 3334—5333 ■3401—2477 3467—1340 3575—5033 3335—5329 3402—2476 .3469—1341 3576—5039 3336—5334 3403—2468 3470—1348 3577—5034 3337—5347 3404—2475 3471—3660 3578 — 5035 3338—287 3405—2466 3472^990 3579 — 5036 3339—5344 3406—2473 3479—4992 3580—5037 3340—5345 3408—2445 3482—4958 3581—5038 3341—5346 3409—2472 3487—307 3582—5040 3342—5363 3410—2462 3490—1976 3583—5041 3343—5348 3411—2463 3495 — 4979 3584—5042 .3344^5350 3412—2464 3497^980 3585—5043 5351 3414—2448 3512—4961 3586—5044 5358 3416—2427 3514—4963 3587—5045 5359 3417—2428 351.5-^971 3588—5046 5360 2429 3517—4973 3589—5047 3350—5365 .3418—2478 3518—4976 3590-5048 3351—5366 3420—2435 3519—4974 3.591—5049 3352—5368 3421—2425 3520^977 3592—5050 335.3—5364 3422—2474 ,3521--1975 3593—5051 3356—5370 3423—2426 3522—4978 3594—5052 3357—288 . 3425—2479 352.3 — 4970 359.5—5053 3358— .5377 3427—5383 3524—4962 3,596—5054 3359—5375 3428—5397 3.52.5—4981 3597—5055 COMPAEATIVE NUMBERS. Code. Rev. Code. Rev. Code. Rev. Code. Rev. 3598— 5U5C 3661—2660 3732—2762 3806—2937 3599— .5057 3662—2661 3733—2764 3807—2909 ,3601—5350 3003—2664 3734—2765 3808-2938 3003-5350 30(J4 — 2605 3735 — 2706 29311 :!G04— 2748 3600 3736—2767 3809—2940 5077 3665—2672 .3737—2747 3810—293!! 3005—5082 3666—2674 2708 3811—2927 3006—2770 3667—2670 3738—2769 3812-2942 .5084 3668—2671 3739—2773 3813—2972 3608—5081 3669—3776 3740—2774 3814—3609 3609—5071 3670—3705 3741—2790 3815-2971 3010—5071 3674—2853 3742—2787 3816—2973 3011—5072 3675—2880 3743—2775 .3817-2916 3612—5069 3678—3594 3744—2801 3818—2934 3613—5086 3681—2856 3746—2799 3819—2935 3614—5074 3082— 2803 3747—2798 3820—3702 301.5—5075 2804 3748-2788 3821—2975 3616—5088 2880 3749—2800 3823—29711 3617—5087 3686—2867 3751—2776 3788 3618—5090 3088—2884 3752—2777 3824—2978 3619— .5352 2885 3753—2780 3825—2979 3620—5092 2887 3754—2802 3826—2980 3021—292 3091—2801 3756—2803 .3827-2918 3622—5095 2887 3757—2805 3828—3735 362.3—5095 2889 3758—2804 3829—3735 3627—5100 2890 3759—2743 3730 3628—5100 3692—2871 3760—1250 3830—3737 3629—5105 369.3—2891 3761—911 3831—3735 3631— .5349 3694—2891 3762—1252 3832—3738 3&32— 5097 3698—2859 3763—2015 383.3—3735 5353 2862 3764—2830 3834—3738 363.3—5096 3099—2859 3765—2831 .3835—19.50 3034—5361 3700—2858 3766—2832 .3836—396 303.5-5098 3705—3410 3768—2833 1951 5357 3706—5297 3782—2836 3837—3063 .5.362 3707-5208 378.3—3842 3838—3064 3030— 5099 3708—5299 3784—2838 3839 — 3069 .5a54 3709—5300 2839 3840—300 3637—5101 3710—5.301 378.5—2839 .3072 5355 3711—3561 3786—2839 3841-3073 3640—5356 3712— .5302 3787—2919 3842—3007 3641—53.56 371.3—5303 3788 — 2944 3843—3065 3642—5360 3714 — 5304 3791—2922 3S44— 3008 3644—5102 371.5—3.383 3792—2943 384.5—27.59 3040-5103 3716—5305 3793—2921 .!846— 3070 5104 3717—5306 3704—2931 3847— .3071 3647—2652 3719—5307 2933 3848—3074 3648—301 3720—2736 379.5—2949 3849—3066 3649—2651 3721—2737 3796—2941 3850—3066 3650—2653 3722—2738 3797—2945 3866—4046 3651—26.54 .372.3—2739 3798—2932 3867—5453 3652—2655 .5370 3799—2920 3868— .5454 365.3—2656 3724—2741 2923 3809—54.55 3654—2658 3725—2742 .fSOO— 2924 3870—5450 365.5—2669 3726—2744 2925 3871— .5453 3656—2666 3727—2745 3801—2928 3872— .5457 3657—2667 3728—2746 ;!S02 — 2929 387.3—5458 3658—2668 2771 3803-2926 .•'.876— .5-153 3059—3599 3730—2750 29.30 3660—2659 3731—2772 3804-2923 NDEX. Explanatory. —The references are to sections. Where the expression is used. "See under this head," the word " head " has reference to the same general index head under which the person is then looking. ABANDONMENT : child abiiiidoned by parent : custody forfeited, 180. custody restored, ISl, 1853, 1854. cropper abandouiug crop iu certain counties ; effect, 2001, 2056. divorce from bed and board granted for, 1562. family abandoned by husband, a misdemeanor, 3355. husband not working, prima facie evidence, 3356. husband abandoned by wife eloping; effect on wife's rights, 8. 2110. railroad station ; company not allowed to abandon, 1098. wife, by husband ; effect on husband's rights, 9, 2111. makes wife free trader, 2117. may get alimony pendente lite, without notice, 1566. when a lunatic ; entitled to alimony, 1895. ABATEMENT: actions ; circumstances warranting, 415. none, by corporation dissolution, 1208. death of party, in tort action, after verdict, 415. devises ; to provide for after-born child, 138, 140. 141. legacies ; to provide for after-born child, 139, 141. nuisance : failure to abate, a misdemeanor, 3446. .ludgment for removal of, when, 825. milldam abated as a, 2138, 2142. towns have power to force abatement of, 2929. plea in, to remedy venne in criminal actions, 3239. ABDUCTION: apprentice; enticing, from employer, 193. child ; by parent after forfeiting custody, felony, 3373. from kindred, by one not so near related, felony, 3358. 3359. kidnapping person a felony, 3634. married woman ; by one not her husband, felony, 3360. testimony of woman not sufficient to convict. 3360. ABETTING : See Crimes and Punishments. ABORTION ; administering to mother to destroy child, felony. 3(!18. to procure miscarriage, felony, 3619. ACCEPTANCE : See Negotiable Instruments. ACCEPTOR : See Negotiable Instruments. ACCESSORIES : after the fact, to felonies ; trial and punishment. 3289. before the fact, to felonies ; trial and punishment. 3287. .3200. duelling: aiders and abettors in. aecessor.v to murder, when. 3629. 11-13 INDEX. ACCOUNT : action on, liquidated and settled, when tried. 484. adnjinisti'ation ; annual, 99. tlual, 1U3. comijelled. 100-131. See Administration. stated by clerk, 117, 118. auctioneer's, made to clerk semi-annually, 218. book accounts as evidence, 1622-1C24. clerk of superior court renders. 918-920. clerk of supreme court files semi-annual, of certain nionejs, 1554. copy of, evidence when, 1624. corporation commission required to keep, 1115. county commissioners; audit accounts against county, 131S (5). publish annual. 1320. county otlicers make annual statement of, 1380-1383. county treasurer; exhibits account to county commissioners. 1398 (5). keeps county's, 1398 (2). current ; when cause of action accrues on, 376. eleemosynary corijorations compelled to, how, 1197. guardian's; 1802-1809. See Guardian. compulsory before resigning, 1776. Itemized, verified, furnished person contesting, when, 494. limitations, statute of, begins to run against current, when, 37G. oyster commissioner's, to state treasurer, 2405. partner, surviving, accounts with representative of deceased, 2540. accounting compelled, when, 2547. pleading ; not necessary to itemize in, when, 494. prima facie evidence, when, 1G25. record of, kept by clerk superior court, 915 (12). reference to take an, 519 (2). railroad officials must accomit to successors. 2648. trustee's, in assignment for benefit of creditors, 973. warehousemen keep books of ; o]ien to public, 3035. ACCUSED PERSON: bail allowed, when : taken by whom. 3207-3213, 3228. counsel allowed, 3150. failure to indict, when charged with felony, discharged. 315."). preliminary hearing before magistrate, 3100-3206. See Preliminary Hear- ing. ACKNOWLEDGMENT : conveyances, for probate and registration, 989-1007. See I'lobate. form of, 1002. debt, to repel bar of statute of limitations, 371. note, b.v partner or maker ; effect of. 372. ACRE: dimensions of, 3065. ACTION. CIVIL: abatement of; circumstances warranting, 415. accounting of personal representative compelled by. 104. administi-ator, etc., action by and against, .30, 31, 150-16."), 167. administrator's right of, 59, 00. appeal in. .^)S3-613. See Appeal. Civil Action, apprentice's right of, on indenture, 199. auxiliary remedies fo. See Arrest and Bail ; .\tlaclinieMt : Claim and De- livei'y. . l)arr<'(l when. See Limitations. Statute of. liMstarcly. 2.1i-2(:4. See Bastardy Proceedings. 1144 INDEX. ACTION, CIVIL — contumed: boiiils ; oUiflal, fiduciary, etc.. subject of, 2S0-28G, 297, 2940. buruing woods of anotber, subject of, 3346. causes of; divided wben demurrer for misjoinder sustained, 470. wbat can be joined, 4G9. client's rigbt of, against attorney for fraud, 215. against attorney for negligence, 214. cloud uiion title removed by, 1589. t-oUector's rigbt of ; power ceasing, wbo continues, 25. commenced by summons, 359, 1444. contested elections. See Contested Elections, controversy submitted witbout, 8(i3-S05. corporation ; cbarter of, vacated by. 82ij, 827. See Quo Warranto. dissolution of, enforced by, 1190-1211. costs in, adjudged how, 1204-1282. See Costs, county brings, to use of county workhouse, when, 1372. creditor's, against heir and representative, 53-58, 94. gives no preference. 55, 94. against trader not showing his Interest. 2118. damages; actions for. See Damages, defined, 351, 2340. detinue. 790-802. See Claim and Delivery, discontinued wben chain of summonses broken, 438. dismissed, when, 400. 503. See Dismissal of Action, distinction between legal and equitable remedies abolished, 354. distributee's rigbt of, against representative, when, 144. divorce and alimony subject of, 1557-1570. ejectment. See Ejectment, entry followed by, within one year, 385. evidence in, 1592-1059. See Evidence. fees of officers in. See Fees, forfeiture of property to state enforced by, 845. franchise of corporation tested by, 820, 827, 1196-1198. judgment in, 555-.5S2. See .ludgment. jurisdiction, 1410-1420. 1.500-1505. See Jurisdiction, legatee's right of ; to recover legacy, when, 144. libel subject of. 2012-2014. See Libel, liens enforced liy. 2027. limitations of time to commence, 359-399. See Limitations. Statute of. statute begins to run ; is suspended ; revived, 300-379. mad dog biting any one subject of. 3.305. mandamus, 822-824. See JIandamus. married woman ; actions by and against, 408. negligeiji e ; actions for. See Negligence, nuisance, 825. office, public, subject of. when 826-845. official bonds destroyed can be subject of, 334. parent's rigbt of. for selling minor child liquor. 3.525. parties to. 400-418. See Party to Action or Proceeding, penalties ; action to enforce. See Penalties and F.orfeitures. personal representative's right of, to recover estate, 156-165. pleadings in, 405-514. See Pleadings, prisoner's right of. for injury by jailer, 3001. lu'ocedure in. See Civil Procedure : Courts. Justices', property fraudulently conveyed, recovered by, 50, 72, 73.""' (pio warranto to contest election, 820-845. See Quo Wai'Wirto. railroads liable to. wben certain regulations violated, 1091, 1092. real property; injury to. subject of, 1470. title to. quieted by. 1.589. reference of. 518-525. See Reference, removal of. 4"25-428. 14.55. Sep Removal of .Vctions. repeal of statute givnig. does not affect action brought, 2830. 1145 INDEX. ACTION, CIVIL — continued: replevin, 790-802. See Claim and Delivery, sheriff liable to, for escape of prisoner, 750. slander subject of, 2U12-2U15. summons in, 429-440. See Summons, survival of right of, to representative, 157, 158. taxiwyer's, to recover taxes illegally assessed, 2855. trial of, 48i 52G-549. See Trial, Civil Action, usurper of public office liable to, 82(;-845. venue of, 419-428. See Venue, Civil Action, verdict in, 550-554. See Verdict, Civil Action, waste, 8.53-858. wrongful death, 59, 60. ADJUTANT GENERAL: See Volume II, Militia, salary of, and allowance for office expense, 27."i0. ADMINISTRATION : absent heir jjresumed dead, when, 151. accounts of representative — annual, 99, 100. failure of representative to file ; effect, lOti. final, 103. record of, kept by clerk, 915 (12). vouchers filed as evidence, 99, 101. accounting compelled by — citation and attachment, 100, 103. civil action, 104, 129. account ordered to be taken, 129. special proceedings, 104-131. account taken by clerk, 117. excepted to; judgment rendered. 118. appeal to superior court, 119, 120. bond for costs on; one sufficient, 119. certain creditors can issue execution. 121. advertisement for creditors, 107. 108. personal service on creditor, 108. assets found ; judgment. 122-124. execution may issue for what, 124. claims ; filed by creditor, 100. proven how, 110. list of, filed by representative. 111. notice of, to creditors. 111. creditor's claim disputed, clerk's duty. 11;!. complaint filed by creditor, 11."). cause transferred to superior conrt. 111. representative can plead later, llO. judgment for certain creditors, where docketed, 121. new assets found after report, creditor proceeds. 128. personal assets insufficient, land sold, 130. representative files list of claims. 111. passes on claims, 113-120. sunnnons in proceeding retiu-nable where, 106. action against estate — continued by whom, when letters revoked, 165. creditor's, against representative, barred, when. 392 gives no preference, 55, 05. how brought, 100. when judgment in. a lion. 162. INDEX. ADMINISTRATION— conimMCd; ;K-tion against estate — continued. by representative, in representative capacity, for — damages to estate, 159, 160. recovery of assets, 159. property fraudulently conveyed by decedent, 50, 72, 73. real property, 159. wrongful death, 59, 00, 2S25. recovery in, not assets, 59. rights of; survive to representative, when, 150. survive to successor of representative, 158. administrator ; his apijointment, bond, liabilities. See Administrator, administrator cum testamento auuexo. See Administrator, adultery ; effect of, on right to administer, 8, 9. advancements ; heirs must account for, 133-135. See Advancements, advertisement for creditors to file claims, 39-41. after-born child ; share of, in ancestor's estate, 138-140. personalty, 139, 140. realty, 138, 140. no petition filed for share, representative's duty, 143. treated as devisee and legatee, 142. application for letters of, 20, 27. assets, 45, 58. action to recover. 159. 100. consists of what, 45-58. fraudulently conveyed property, when, 50. inventoried, 42, 44. legal and equitable, distinction abolished, 4.1. new, discovered by creditors ; procedure, 128. inventoried, 44. personal ; crops ungathered, 47. proceeds from sale of realty, part of, 48. trust estates in personalty, 46. real ; what proceeds from sale of realty, 40. shown by clerk's accounting, 127. wrongful death ; recovery in action for, not, 59. barred after ten years from death of intestate. ,307. bond of representative, 23, 28, 29, 205. 319. action on, by person injured. 30. successor brings, when. 31. new one required, when, 32. failure to give, letters revoked. 34. successor appointed. 35. surety companies may give, 273. expense charged to estate, 277. surety in danger of loss ; remedy. 3.3. <'aveat to will filed suspends, 3137. chapter on, applicable to what estates, 172, 173. children; distributive shares of, in ancestor's estate. 132-137. choses in action of doubtful value, sold, how. 07. claims against estate: action on, gives no preference, .55. 90, 162. advertisement foi- creditors to file. 39-41. cost of, 39. proven, how. 40. disputed, barred in six months, 93. may be referred, 92. not presented within one year after iiotii e. who liable. 94. proved and paid. 87-98. clerk superior court ; duties concerning. See Clerk. Superior Court, collector. 23-25. See Collector of necedeiit's Estate, commissions ; representative entitled to, on s(>ttleitient. 149. contemiit ; reiiresentntive failing to .■iccount, guilty of. 100. 1117 INDEX. ADMINISTR-ATION— co»i. partner's, after dissolution, effect, 372. ADOPTION OF MINOR CHILDREN: bond to secure estate of child, 178. letters of adoption ; effect of, 177. granted, 176. order granting, recorded, 179. revoked, when, 179. parties to proceeding to adopt, 175. petition for, contents of, 174, 177. ADULTERATION : See Crimes and Punishments. ADULTERY : crime of fornication and adultery, defined and punished, 3350. divorce for, 1561. liusband guilty of, forfeits rights in wife's estate, 9, 2111. widow's year's allowance forfeited by her adultery, 3091. wife guilty, forfeits rights in husband's personal estate. 8. 2110. forfeits dower right and year's allowance, 2110. 3083, 3091. ADVANCEMENTS : children must account for, by decedent. 133, 1556 (r. 2). failing to account, can not share in final settlement. 135, 15.56 (r. 2). decedent depositing property with child, child must account, 134. estate of idiot, etc.; surplus advanced to ne.\t of kin. when, 1900. 1907. clerk to equalize advancements, bow, 1903. to take into consideration those most needy, 1904. withhold from those likely to waste, 1905. for what purpose and to whom advanced, 1901. Insanity must be permanent, 1907. person's mind restored, advancements cease. 1908. parties to proceeding, who are, 1902. removal of proceeding to advance to superior court, 1906. ADVANCES TO CROPPER : See Agricultural Lien. ADVERSE POSSESSION: color of title with, gives ownership, when, 333. 382. 384. deemed to be under color, when, .333. does not affect insane persons or Infants, 362. 11.52 INDEX. ADVERSE POSSESSION— <-onii»«ef? ; easements ; ownership of, never acquired by, 388, 389. bigbways never acquired by, 389. married woman affected by ; exception, 563. possession generally. See Possession. railroad rigbt-of-way never acquired by, 388. recovery of land defeated by, 333, 382, 384. seven years', under color, gives title, wben, 382. streets of towns never acquired by, 389. thirty years', gives title, 380, 381. twenty-one years', with color, gives title, 380, 381. twenty years', without color, gives title, when, 384. ADVERTISEMENT : See Notice ; Publication. administrator's, for claims against estate, 39, 40. sale of land for assets, 81. allotment of exemptions at request of debtor, 705. corporation ; decrease of capital stock, 1164. cost of, allowed to sheriff, wben, 2777. creditors of decedent ; notice to, by clerk, 107, 108. crop sold after, when cropper abandons crop, 2050. deed of trust ; foreclosure sale after, 1042. defacing or tearing down legal notice, misdemeanor. .3710. elections ; notice of, 2950, 2967. entry of land, 1708. of oyster grounds, 2377. execution sale of property, 641. gates; application to erect, across road, 2711. guardian renting land, 1788. lotteries ; person advertising, misdemeanor, 3725. malicious injury to any, a misdemeanor ; proviso, 3709. mechanic's sale of personalty to satisfy lien, 2017. mortgage foreclosure sale, 1040, 1042. otRcers' accounts and reports. See Publication, partnership dis.solution, 2.5.39. process served by publication. See Publication, restoration to citizenship, petition, 2677. sales : of property under execution, mortgage, etc., 641. 1040, 1042. steamboat owner advertises as to draw bridge, 2699. luiclaimed freight, 2637. stockholders' meeting to decide on dissolution, 1195. stray animals, by register of deeds, 2833, 2835. taxes ; sheriff's notice of collection of, 2870. sale for, 2890. time of, computed how, 888. warehouseman's, of sale for storage charges, 3036. AFFIDAVIT : accompanying book account, 1022. account itemized, verified by. 1625. administration letters ; application for to be by, 26. alimony pendente lite secured by, how, 1506. arrest; to obtain order for, in civil action, 729. counter affidavit to vacate order, 7.36. attachment proceedings ; must show what, 759. bastardy warrant issued on, 252. before whom made, 925-931. certain affidavits irregular validated, 2363. claim and delivery ; must show what, 791. claims against decedent's estate proven by, 91. clerk's fee for taking, 2773. Rev. Vol. 1—69 1153 INDEX. AFFIDAVIT— co)i(j)i«e(Z; commissioner of affidavits. See Commissioners of Affidavits, continuance asked for by, 530-532. counter affidavit filed, 532. creditors' in proceedings supplemental to execution, 6G8. deeds made prior to January I, 1855. probated by, 981. divorce ; complaint in action for, accompanied by, 1563. evidence, when, 3121. injunction granted on, when, 810. judgment debtor arrested on, when, (571. lien for advances enforced by lienee filing, 2054. mortgage in lieu of bond to be accompanied by, 270.. oysterman refused license to plant unless files certain, 2373. pleadings verified by, 488-493. See Verification, railroad directors must make, to secure charter, 2549. referee appointed to take, of person refusing to testify, 875. removal of causes by, 425-428, 1455. taken by whom, 925-931. trademark secured ; affidavit necessary, 3014. verifying pleadings by, 488-493. See Verification. will probated by. 3125. AFFIRMATION : See Oaths. AFTER-BORN CHILD : action against decedent's estate ; child may defend, when, 142. devisee and legatee as to creditors of estate, 142. inherits how, 1556 (r. 7). share of, in ancestor's estate, 138-141. no petition for, duty of representative, 143. will not providing for, void as to, 3145. AGED AND INFIRM : See Home for Aged and Infirm. AGENT : doing business as trader, etc., without showing principal ; effect, 2118. embezzling property of principal, 3325, 3403, 3406. 3408. 3487. insurance ; violating insurance law, 3482-3490. companies doing business through. See Insurance, mortgagee or trustee may appoint, to foreclose, 1035. must pay ta.xes, when, 2862. negotiable instruments; signature to may be made by, 2168. effect of signing, as agent, 2169. by procuration, 2170. negotiating without indorsement; liabilities. 2218. notice of dishonor of, given by agent, 2241, 2244. ' process, of foreign corporation necessary, 1243, 1248. railroad, making up passenger train wrong; misdemeanor. 3747. AGE OF CONSENT: marrying female imder 14 years, misdemeanor, 3368. rape, statutory, 3.348. AGREED CASE: See Controversy Without Action. AGREEMENT: See Contracts. AGRICULTURAL LIEN : advances made cropper a lien, when, 20.52, 2053. lien must be written and recorded, 20.52. chattel mortgage as additional security ; form of, 205.5. 1154 INDEX. AGRICULTURAL hlE'N— continued: cropper abandoning crop ; remedy, 2056. crops seized and sold, when, 2054. contest over proceeds, 2054. enforced how, 2054, 2056. form for, in certain counties, 2055. landlord and laborer not affected by, 1993, 2054. lien of landlord takes precedence over, 1993. mortgagor in possession creates, how, 2053. register of deeds lieeps record of, 2057. AGRICULTURAL TENANCIES: See Landlord and Tenant ALCOHOLIC LIQUORS : See Liquors. ALIENS : foreign corporations may do business, proviso, 1193, 1194. may enter land, when, 1692. property rights of aliens, same as of citizens, 182. sales of property by or to, validated, 183. ALIMONY : complaint in action for, accompanied by affidavit, 1563. divorce from bed and board may carry, 1565. amount limited to one-third of income, 1565. feme covert lunatic entitled to, when, 1895. granted without divorce, when, 1567. husband failing to support wife must pay, 1567. pendente lite, granted when, 1566. husband entitled to notice of, when, 1566. real estate granted as, writ of possession issued, 1568. undertaking for costs not required in action for, 1558. wife applying for proceeds of own labor before suing, 1563. wife's affidavit accompanying complaint for, 1563. ALMSHOUSE : See Home for Aged and Infirm. AMENDMENT : bail not discharged by, of process or pleading, 757. condemnation proceedings, at any time, 2592. corporate charters amended, how, 1248. court proceedings amended, when, 507, 512, 513, 1467. pleadings ; amended once as of course, 505. good cause shown, amendment allowed, when, 507, 1468. material variance between, and proof ground for amendment, 515. name of defendant inserted in, when learned, 510. substantial amendment to; effect of, 508. supplemental ; allowed, when. 511. variance between pleading and proof, amendment. 515, 516. process amended when, 507, 1467. statutes amended, construed how, 2832. AMERCEMENT : bond of officer liable to payment of, 2815. clerk failing to issue execution on judgment liable to. 618. constable ; amerced for failing to endorse process, 3149. failing to pay costs on execution to clerk. G40. making no return or false return, 2817, 3604. judgment nisi against officer. 2818. INDEX. AMERCEMENT— cfw/ tin tied : sheriff ; amerced for failing to — endorse process, 3140. execute process, wlien, 2820. furnish grand jury with names of liquor dealers, 2827. make return of proces.s, 2817. pay over money collected, 2S21. allowing prisoner to escape, 3227. farming out office, amerced, 2828. making false return of process, 2817. sureties of, liable for amercements, 281.'5. ANIMALS : cattle. See Live Stock ; Quarantine. contagious diseases; animals dying of; what done, 3298. requirements of owners to prevent spread of, 3295-3297. cruelty to, 3299, 3300-3302. See Crimes and Punishments, deer, chasing, with dogs in certain counties, 34G0. dogs. See Dogs. di'iving another's stock out of range, 3314. estrays ; person failing to comply with law of, 3306. hogs. See Hogs, horses; larceny of, 3505, 3509. allowing stone-horse to run at large, 3323. exhibiting stud or jack near religious meeting, 3705. injury to, 3313, 3314, 3504. killing stock in range and not showing hide, etc.. 3315. larceny of, 3501, 3504-3506. See Larceny, live stock. See Live Stock. mismarkiug. for fraudulent purpose, misdemeanor, 3317. pedigree of breeding, falsely represented, misdemeanor, 3307. poisoning, by leaving certain herbs exposed, misdemeanor, 3318. railroads failing to construct cattle-guards, misdemeanor, 3753. registration of high-bred live stock procured by fraud, misdemeanor, 3308. selling meat of diseased, misdemeanor, 3442. sold by game warden ; purchaser's rights, 1870. stock law. See Stock Law. strays, 2833-2835. See Strays. tolling stock into stock law territorj'. .3.309. turning out of stock law territory, 3322. quarantine of live stock. See Quarantine. ANNUITY : present cash value of, what is, 1627. ANSWER : administrator's petition to sell land ; heirs and devisees riiake, 74, 79. amendments of. See Amendment. bond of defendant before filing, when required, 453, 454. condemnation proceedings ; defendant's, 2584. contains what, 477, 470. 481-483. contested election case; undertaking reu\v. 727. 1100 INDEX. ARREST, CRIMINAL ACTION : aeoused arrested without warrant ; procedure, 3182. auy oue may make, when, 3170, 3177. apprentice arrested for leaving employer, 192, 205. bail granted when and by whom, 3207-3213. See Bail, Criminal Action. breach of the peace ; any one present may arrest offender, 3176. fee for making, 2777. felon concealed In house, duty of officer, 3179. fugitives from justice arrested, how, 3183-3189. game wardens may arrest as constables, 1808. house broken open : by officer making arrest, when, 3180. by any one, to prevent a felony, 3179. officer may ; without warrant, when, 3178. break open house in case of felony, 3180. oyster commissioner, etc., may, without warrant, 2398. person summoned to aid in arrest must obey, 3181. refusing to aid, a misdemeanor, 3701. tramps arrested for certain offenses, 3738. warrant for ; not necessary, when, 3176-3178. arrested without ; procedure, 3182. ARSON : death the penalty for, 3335. uninhabited houses, crops, woods, etc., biu-ned. See Burnings. ASSAULT: civil action for; to whom costs allowed, 1264 (4), 1266. defendant convicted of, on indictment for felony, 3268. election officers, assaulting, a misdemeanor, 338.5. limitation, statute of; bars civil action for, 397. bars criminal action, when, 3147. pointing gun or pistol at another, unloaded or not, an, .8622. married woman assaulted with intent to carnally know, felony, 3625. punishment prescribed in all cases of, 3620. rape; assault with intent to commit, felony, 3638. secret, with weapon, by waylaying, felony, 3621. ASSETS: assignee for creditors makes inventory of, 968. corporate, distributed how on dissolution, 1207. decedent's estate ; what constitutes, 45-59. See Administration, guardian : should exhibit account of, in three months, 1802. failing to do so, compelled by attachment, 1803. new assets accounted for, when, 1804. settlement of, must show entire amount, 1S05. l^artnership ; surviving partner makes Inventory of, 2540. ASSIGNMENT FOR CREDITORS : accounts ; trustee must file when, 973. record of trustee's, kept by clerk, 915 (12). bond of trustee, 969. 970. surety company may give, 27.'^. cost charged to expense, 277. creditors ; file claims with clerk, 972, 973. falsely swearing to account, guilty of misdemeanor, 3617. debts owing assignor mature on execution of deed of, 007. final settlement within twelve months. 973. insolvent debtor applies to assign and not be arrested. 1930. insolvent trustee without bond, removed by clerk, 969. successor gives bond. 970. inventory of assets filed, when, 968. 1161 INDEX. ASSIGNMENT FOR CREDITORS— conY/ju/erf; preferred debts, scliedule of, filed, 9G7. property ; uot to be sold within what time, 971. perishable, sold when, 971. schedule of preferred debts filed, where and when, 9(J7. trustee ; appointed in deed of, violating dut.v, misdemeanor, 3689. closes trust within what time, 973. compelled to give bond. 909. removed if Insolvent, when, 9G9. new one appointed, 970. gives bond, 970. ATTACHMENT : actions in which warrant may issue, 758. afiidavit to obtain warrant, 759, 700. form of. in justice's court, 1490 (3-5). conditional judgment against garnishee, when, 780. 783. corporate stock subject to, 770. defendant recovering judgment, property delivered to him, 780. discharge of, applied for by defendant, 774. undertaking of defendant filed, 775. garnishee ; admitting having property, but surrenders to sheriff ; 782. conditional judgment against, rendered when, 780, 783. judicial attachment issued for others, 780. denying having property of or owing defendant ; trial, 781. failing to appear ; effect, 780. judgment entered against, 779, 780, 783, 784. order directing to appear before justice, 1490 (12). property in hands of : jury values, 782. turned over to sheriff, garnishee excused, 782. summoned, 779. trial, when garnishee denies having property, etc., 781. incorporeal property ; warrant executed on, how, 777. intervener in, may interplead, when, 789. issuance of warrant of ; by whom, 701, 709. judgment in ; satisfied how, 784. against garnishee, 779, 780, 783. judicial, from justice's court; form, 1496 (13). jurisdiction in, 709. justice's, levied on land, 771. levy of, on corporate stock. 778. certificate of defendant's interest furnished sheriff, 778. Hen of attaching creditor, from what time, 767. notes of defendant sued on, when. 78.5. notice of warrant of attachment published, 706, 770, 1496 (16). plaintiff may sue on defendant's notes, when, 785. plaintiff's undertaking in : justification of, 763. 78S. property sold pendente lite, when, 772. replevin of iiroperty by defendant. 77.1-775. undertaking to secure writ, 773, 775, 1490 (14), (15). ■ return of warrant of, by sheriff. 708. sate of propertj- attached pendente lite, 772. summons in. served how. 702. 770. taxes; attachment and garnishment to collect, 2880, 2881. third person may interplead, how, 780. undertaking of plaintiff to secure warrant. 76,3. form of, justices' courts, 1406 (0). Increased how and when. 787. sureties on, excepted to. justify, when. 788. validity of. can not be impeached. 704. of defendant, 775. 1102 INDEX. ATTACHMENT — continued: vessel taken in, sold when, 772. warrant ; granted by whom, 761, 769. affidavit to obtain, 759, 760. bond of plaintiff to obtain, 763, 788. contains what, 765. directed to whom, 765. executed bow, 767, 770, 771. form of, in justice's court, 1496 (7). Issued when and returned where, 761, 769. justice's publication t»f notice of, when, 770. levied on corporate stock, 778. duty of corporation officer, 778. Incorporeal property, 777, 1496 (11). laud, 767, 771. modified, when, 787. returnable where and when, 761, 768, 769. return of, by sheriff, 768, 769. indorsement on warrant, form of, 1496 (8). inventory of property attached to, 1496 (9). service of warrant and summons, 762, 766, 770. several warrants to different counties, 765. vacated, when undertaking insufficient, 787. when defendant gives undertaking, 773-775. who grants, 761, 769. ATTEMPT TO COMMIT CRIME : See Crimes and Punishments. ATTORNEY AT LA-W : accused person entitled to, to make defense, 3150. acting as, without license, punished as for contempt, 944 (3). action against ; for fraud, 215. by client for costs, when, 214. , allowance to, by court, for defending, when, 2592. appearance of, for client in courts, 356. appointed by court as counsel for pauper, 452. as counsel for unknown party, 2592. argument of, before jury, controlled by court, 216. clerks, justices, etc., can not practice law, 3641. complaint not filed by ; liable for costs, 214. debarred ; for crime, 211. for failure to pay over money collected, 212. procedure, 212. examination for license by supreme court, 207. conditions precedent to, 208, 210. failing to perform duty, punished as contempt, 944. failing to account to client : debarred, 212. fraud practiced by, subjects him to double damages. 215. justices can not practice law, 3641. licensed by supreme court, 207. fee for license, 208. misconduct of, in court, punished as for contempt, 944. oath of, taken in open court, 209, 2360. party may appear by. 356. parties unknowTi or nonresident protected by, how, 2592. persons disqualified to practice law, 210. relation of. to client, 213-215. authority filed, 213. testimony of, where client defrauded state, 1620. violation of duty of, in court, punished as for contempt, 944. 1163 INDEX. ATTORNEY GENEUAL : See Volume II. clerk provided for, 2746. oompeusatiou of, 1084, 1092, 2746, 2747. couteiupt proceedings ; attorney general appears for court, 939. contested election case ; duty of, in, 827, 828. corporation commission represented by, wben, 1110. corporations ; duty as to, 1152, 1198, 1242, 124C. criminal statistics forwarded by clerk to, 917. duty of; to appear for corporation commission, wbeu, 1110. to approve grants, etc., to oyster grouuds, 2.382. prosecute actions against corporations for — dissolution, when, 1198. failing to display name at office door, 1242. domesticate, 1194. make annual statement, 1152. organize or act, 124G. forfeiture of corporate franchise, 1246. prosecute railroad, on bond staying decision of corporation commis- sion, 1084. for violating rules of corporation commission, 1092. vacate and annul land gi-ants, 1750. failing to attend supreme court, substitute appointed, 1551. foreign corporation failing to domesticate, duty of. 1194. gi-ants ; land, vacated and annulled by, 1750. oyster grounds, form of, approved by, 2382. leave to bring action for usurping office granted by, 828. oath of, 2300. oyster grants approved by, 2382. quo warranto proceedings, 826-845. See Quo Warranto. action in nature of brought by, when, 827. railroad prosecuted by ; on stay bond, 1084. for violating rules of corporation commission, 1092. granting special privileges, etc., 2503. supreme court appoints substitute for, when, 1551. ATTORNEY, POWER OP : See Power of Attorney. ATTORNMENT : contracts concerning land registered, good without. 079. conveyance of rents, remainders, etc., complete without, 947. holders of particular estates without notice not prejudiced, 947. AUCTIONEERS: account semi-annually to clerk, 218. acting without license, penalty, 219. appointment of, 217. bond of. 217. commissions allowed, 221. portion going to town, 221. duties of, 218. fees of. for selling tobacco, 3042. licensed by county commissioners, 1318 (20). AUDUBON SOCIETY: bird and game fund supervised by, 1871. certificate to take eggs, birds, etc., granted to scientific men, 1866. void when birds, etc., taken wrongfully, l.S(;(i. game wardens appointed on recommendation of, 1867. hunting laws executed by. See Hunting. Incorporated, 1862. names of incorporators, 1862. 1164 INDEX. AUDUBON SOCIETY— cojiimwerf; objects for which created, 1864. officers of, 1863. powers of, generally, 1862, 1864-1866. See Hunting. approve form of license to nonresident hunters, 1872. furnish clerks with blanks required, 1865. grant certificates to take birds, eggs, nests, 1866. provide for execution of the game laws, 1864. See Hunting. purchase and hold land, 1862. recommend to governor game wardens, etc., 1867. revoke license to nonresident hunters, 1872. property of, exempt from taxation, 1862. treasurer of, appointed on recommendation of, 1867. AUTHENTICATION OP RECORDS AND PAPERS: See Volume II, .\pp. deeds made iu other states, 1619. letters testamentary or administration in other states, 1618. official writings of state courts or departments, 1616. public records of other states or United States, 1617. wills made and probated iu other states, 1619, 3130, 3133. AUTOMOBILES : running, at unlawful rate of speed, misdemeanor, 3793. BAIL, CIVIL xVCTION: See Arrest and Bail, Civil Action.- BAIL, CRIMINAL ACTION: accused ; bound to peace ; failing to keep, forfeits. 3214. convicted of certain offenses, bail forfeited, 3215. appeal to supreme court pending, defendant allowed, 3279. 3280. continuance granted by justice, defendant allowed, 3213. execution not to issue on judgment nisi on, 3217. filed with clerk, 3211, 3212. forfeited ; deemed, when, 3215. bail may surrender principal before execution on, 3226. can plead any defense principal might. 3229. execution not to issue on judgment nisi without notice, 3217. judge may remit, when, 3220. clerk remits if money collected. 3221. treasurer remits if paid over to him, 3222. judgment nisi in justice's court, how rendered, 3223. final, when rendered, .3224, 3225. notice of judgment nisi, what to contain, 3218. solicitor prosecutes to collection, 3216. judgment nisi in justice's court on forfeited bail, 3223. final, when, 3224, 3225. justice granting bail, certifies on warrant, etc., 3212. mortgages given in lieu of, 266. notice of judgment nisi on forfeited, 3218. executed, how, 3219. principal : may be arrested and surrendered by. 3227. may give other bail, 3227. sheriff's liability for release, .3227. prisoner allowed, when," 1849. 3207. 3212. recognizance deemed bi-oken, when. 3215. remittance of forfeited, when. 3220-.3222. sheriff : may take, but not become. 3208, 3228. makes recognizance p.iyable to himself, 2829. returns recognizance to clerk, 3208, 3212. solicitor prosecutes forfeited recognizance, 3216. who may take, after defendant committed. 3210. ,'5228. before defendant committed, 3208, 3209. 1165 INDEX. BANK EXAMINERS: accepting bribe, felony, 3324. appointed by corporation commission, 24G. compensation of, 249. 2755. expenses of, in malting bank examination, who pays, 249. powers of, generally, to examine banking institutions, 247, 249. to make arrests, when, 251. take possession of bank, when, 2.50. reports of, to corporation commission, when, 248, 250, 251. making false report, felony, 3324. special reports made, when, 243. BANKING : bank-notes, etc., counterfeiting, etc. See Bank-Notes, banks ; incorporation, powers, etc. See Banks, bills, notes, etc. See Negotiable Instruments, check ; certified by bank an acceptance, 2337. no assignment of funds in bank, 2339. corporation created under the general law can not do, 1134. limitation, statute of, no bar to action on bank-notes, 377. BANK-NOTES : action on, not barred by statute of limitations, 377. connecting parts of two or more, together, a felony, 3420. described in indictment for larceny of, 3251. forging, or other banlv securities, a felony, 3419. BANKRUPT : debt of, revived only by written contract, 978. administrator, etc., not personally liable on stock of, when, 237. authorized to begin business, when, 225, 226. authority to begin, withheld, when, 227. available funds of, defined, 232. bills or notes drawn to officers of, payable to, 2202. capital stock ; stated in corporation certificate, 222. amount required to be paid before opening, 224. certificate of payment made, how, 224, 225. must be paid in money, 225. cash of ; defined, 232. certificate of Incorporation ; signed and filed, 222, 223. corporation commission ; power of, over, 240-242. reports to, required of bank officers, 242-244. making false report, felony, 3320. penalty for officers failing to report. 245. corporations; general law of, applicable to, 228, 234, 1128-1247. creation of, 222-227. can not be created under general corporation law, 1134. capital stock ; amount paid in before beginning, 224. certificate of incorporation contains what, 222. filed in secretary of state's office, 223. cop.v filed with corporation commission, 223. recorded by secretary of state, where, 223. clerk of court, where, 223. signed by incoriiorators and probated, 223. statement required before authorized to open, 225, 226. authority to open, withheld, when, 227. dividends ; restriction upon declaring, 2.32. embezzlement of officers and agents of, felony, 3325. exemption of stockholders from liability repealed, 230. 1 1 (16 INDEX. BANKS — continued: fees for incorporation, etc., 1233-1235, 2773. fiduciaries liolding stock, not personally liable, 237. form of certificate of incorporation contains what, 222. general corporation law applicable to, when, 228, 234, 1128-1247. incorporation of. See under this head. Creation of, etc. incorporators, number of, 222. insolvency of, discovered, examiner takes charge, 250. receiver appointed, when, 250. liability of stockholders individually, 235-239. limitation, statute of ; does not bar action on bank-notes, 377. bars action against ofiicers, etc., for penalty, when, 378. loans of ; cease when reserve fund fails, 232, 233. definition of "money borrowed," 233. limit of, to one person, 233. married women's checks on, honored, when, 2095. national ; reorganizing into state bank, what to do, 230. number of incorporators necessary, 222. officers ; embezzling funds of ; felony, 3325. making false reports of entries, felony, 8326. penalty for failure to make reports, 245. powers of; generally, 228. to own and purchase land, 228. purchase its own stock, 229. reorganize, 230. sell stock of delinquent stockholders, 239. real estate purchased and held by, 228. reports of, to corporation commission ; annual, 244. quarterly ; to be published, 242. special ; required when, 243. when bank fails to make, penalty, 245. when false report made, felony, 3326. reorganization of, how accomplished, 230. reserved fund of ; required to be held. 231, 232. loans cease when reserve fails, 232. stock of, bank may purchase its own, when, 229. assessments on, not paid, stock sold, 239. stockholders ; defined, 23.5. liability of, individually, 235-238. list of, furnished corporation commission, 244. tax and fees for certificates of incoi-poration, 1233-1235, 2773. transferee of stock ; liability of, 238. unpaid subscriptions to stock ; share sold, 239. BARBED-WIRE FENCES: cutting or destroying, a misdemeanor, 3413. putting up, in certain counties, without plank on top, misdemeanor, 3769. BARROOM : See Liquors. BASTARDY PROCEEDINGS: affidavit to obtain warrant, 252. allowance to mother, 259. appeal to supreme court in, 255, 257. begun how, 252-2.54. bond required of putative father. 259. child ; legitimated, how, 263. 264. continuance of. when child unborn, 258. costs in, 253, 254. 2.55. fine of putative father, etc., 259. issues of paternity, 253, 254, 259. 1167 INDEX. BASTARDY PROCEEDINGS— C&)i?i/n/fr7; jurisdiction, justice has exclusive, 252. legitiiuiition of bastards, procedure ; effect, 263, 2G4. limitatiou, statute of, bars proceedings, 260. maintenance of child, execution for, 261. putative father : warrant for, 254, 256. apprenticed, when, 202. judgment and appeal, 254, 255, 257. may be discharged from prison, when, 1915. warrant issued on whose complaint, 252. BATTERY. ASSAULT AND : See Assault. BEQUEST: See Wills. BESTIALITY : crime against nature ; punishment for, 3349. completed by penetration only, 3639. BETTERMENTS : assessment of, how made by jury, 653-657. claimed when and how ; proceedings, 652. claim for, by defendant, plaintiff demands his interest valued, 661, 662. defendant evicted after plaintiff relinquishes ; remedy, 606. judgment for excess of. over damage, a lien, 658. life tenant paying judgment for, recovers of remainderman, etc., 659. mortgagor has no claim for, in action by mortgagee, 660. petition for value of, filed by defendant, 652. stays plaintiff's execution, 652. plaintiff requires his estate in the land to be valued, 061. plaintiff's election that defendant take premises ; effect, 663. defendant pays value of interest. 004. default in payment, land sold by court. 064. infant, etc.. being plaintiff, value deemed real estate. 605. rents balanced by, when, 056. value of premises without, estimated, 001, 002. verdict of jury assessing ; judgment, 057. BIGAMY : defense, former husband or wife absent 7 years, etc.. .3301. defined, and punishment prescribed, 2083, 3301. husband or wife competent to prove marriage, 1030. venue of action for, 3361. BILLIARD-ROOM : minors allowed in, proprietor guilty of misdemeanor. 3720. BILL OF EXCHANGE: See Negotiable Instruments. action on. when can be tried, 484. drawn in set ; acceptor lialile for all he accepts, 2.331. holder of one, whose title first accrues, owner, 2329. indorser liable for what he indorses, 2.3.30. part of, paid in due course, discharges whole, wlien, 2333. payment of part, when acceptance outstanding, no release, 2332. BILL OF LADING: presented by consignee with amount of charges, freight delivered, 1111. railroad agent must give, to shipper, 1111. INDEX. RILL OF PARTICULARS: iillowetl plaiutiff in CTimiual actioDS, 3244. juilge orders, wUen, in civil actions, 494. .justice orders, when, 14G9. party refusing to give ; effect, 1469. BlltUS: same birds detined, 1875. luiiiting of. See Hunting. Uept for pets or breeding, 1S76. protection of, by Audubon Society-. See Audubon Society. shipping, from state, misdemeanor, .3471. or selling in certain counties, 3472. unlawfully liilled or caught, etc., seized by warden, 1870. sold how; purchaser's rights, 1870. BLACKMAIL: person attempting to extort money or property liy threats, guilty of, .3428. BOARDING-HOUSE KEEPER : See Innkeeper. BOARD OF AGRICULTURE : See Volume II. common carriers failing to make to, statements as to fertilizers, 3819. concentrated feeding stuff; selling, without filing samples with. .3807. liable to seizure, 3807. cotton-seed meal ; regulations of board for sale of, violated. ;3814. prevents obstructions by milldams, etc., 24G2-2464. BOARD OF EDUCATION : See Volume II. chairman may administer oaths. 2302. compensation of members of, 27SG. fixes salary of superintendent of public instruction. 2782. fines and penalties paid to treasurer of, 1378. treasurer of county ex officio treasurer of. 1396. BOARD OF ELECTIONS : See Volume II. compensation of ; county board, 2784. state board, 27G0. BOARD OF HEALTH : See Volume II. contagious diseases ; failing to notify schools of, misdemeanor, 3440. regulations concerning health, violation of, punished. 3440-3458. BOARD OF INTERNAL IMPROVEMENTS : See Volume II. compensation of ; members of, 2758. secretary of, 2737. officers of state institutions failing to report to. misdemeanor. 3.")9."). railroads, etc., state interested in, not reporting, misdemeanor. .3.595. witnesses failing to appear or testify before, misdemeanor, 369.3. BOARD OF PENSIONS : See Volume II. compensation of county board, 2783. BOARD OF PUBLIC BUILDINGS AND GROUNDS : See Volume II. laborers employed by : compensation, 2762. superintendent of, 280C. BOARD OF PUBLIC CHARITIES : See Volume II. expenses of, paid. 2807. officers failing to furnish to, information; misdemeanor, 3566. Rev. Vol. 1—70 1169 INDEX. BOND FOR COST : action ou, and other obligations, 280. appeal : to suiueme court, civil actions, 003-595, 597. criminal actions, 3277-3279. from county commissioners' decision as to road, 2090. arrest and bail ; plaintiff's, 730. defendant's, 737-747. attachment proceedings, plaintiff's, 763, 764. defendant's, 773-775. caveat of will, 3136. claim and delivery proceedings, plaintiff's, 793-794. defendant's, 795-797. iuterveuor's, 800. contested election ; plaintiff's bond for leave to sue, 828-831. defendant's, before answering, 835. defense bond in action concerning land, 453, 454. mortgage in lieu of, 209. surety company may give, 273. garnishment ; plaintiff's, in suing on defendant's note, 785. judgment ou, on appeal, 1251, 1279-1282. money deposited in lieu of. 4."5(i. mortgage given in lieu of, in — criminal proceedings ; conditions of. 266. fees for foreclosing, 266. power of sale executed how, 266. time of payment limited, 266. civil actions ; plaintiff's, 269. defendant's, 269. security of, increased when, 271. value of property included in, affidavit as to, 270. pauper suit does not require, 451, 454. prosecution. 4."0. 451. See Prosecution Bond. mortgage in lieu of, 269. surety company can make. 273. stay bond for costs on appeal from justice, 1487. undertakings for costs. See Undertaking. BOND FOR TITLE : decedent's ; conditions complied with by representative. 83. must be written, probated and registered, 976. 979, 980. BONDS : action on, defendant may plead satisfaction, when, 1.5'22. penalty discharged when sum due paid, 1523. adopted child's estate secured by, 178. appearance. See Bail, Criminal Action, auctioneer's, 217. bastardy proceedings, 254. 259. corporation. See Bonds. Corporate, costs; in action on, when several defendants, proviso, 1264 (5). bond to secure payment of. See Bond for Cost, decedent's, binding heirs, paid by representative, 98. defense. See Defense Bond, destroyed ; action on, when, .'534. ferrymen give, when, 2700. fiduciaries'. See Bonds, Fiduciary, mortgage given in lieu of, 265, 267, 269. notes, bills, etc. See Negotiable Instruments, officers', public. See Bonds, Official, peace. See Peace Warrant, prosecution. See Prosecution Bond. 1170 INDEX. BONDS— ccn. CANCELLATION: moi'tgages and trust deeds released by, 1046. security for costs, where costs paid. 267. CAPIAS: clerk issues, where nol. pros, with leave, when. .T273. 7."i. CHILD: See lufiints ; Minors. abaudoniuent of, by parent, forfeits custody, 180, 181. abduction of ; by inducing to leave kindred or school. 3358, 3359. by one not so nearly related, felony, 3350. parent after forfeiting custody, 3373. adopted, inherits when, 177. adoption of, 174-181. See Adoption of Minor Children. ^ advancements to. accounted for in distributing estate, 133-135. after-born ; intereist in ancestor's estate, 138-143. aiding minor to obtain cigarettes, misdemeanor, 3805. apisrenticed. 18-1-206. See Apprentice. barkeeper allowing minor to enter bar against parent's protest, 3729. birth of, concealing, felony, when, 3623. carnal knowledge of, under fourteen, rape when, 3348. cigarettes ; selling or giving to minor, misdemeanor, .3804. conspiracy to abduct, by one related, 3359. contractor hiring, to manufacture by piece, with intent to defraud, 3428a. conveys property held in trust, how, 1036. custody of. forfeited by parent. 180. restored, how, 181, 1853, 18-54. affected by divorce, 1570. divorce ; effect on, 1569, 1570. enticing minor, out of state without parent's consent, misdemeanor, 3630. estate of, inherited by parent, when, 15.56 (r. 7). expenses of action against infant, how paid. 407. exposing, to fire by shutting up in building, misdemeanor, 379.'5. guardian of : duties, etc. See Guardian, heir of living person construed how, 1583. hours of labor of, in factories, regulated, 3363. illegitimate, legitimated. •_'C3. 264. next of kin to mother, 136. 137. infants, action by and against. See Infants, inherits from ancestor, how, 1556. insane mother's estate used for benefit of, when, 1899. judge approves all orders affecting estate of infant. 571. 720. kidnapping, a felony, 3634. limitations, statute of, does not affect infant, 362. manufacturers, employing, under twelve years, misdemeanor, 3362. parents misstating age of, to employer, misdemeanor, 3364. selling to minors — cigarettes ; or giving to them, misdemeanor. .3804. aiding minor to get. misdemeanor. 3805. deadly weapons, misdemeanor. 3832. liquor, a misdemeanor, 3524. proof of sale makes prima facie case. 3.524, sent to orplianage, when, 184. spendthrift trust can be created for, 1.588. unborn, in esse, can take by deed, 1582. inherits how, 1.550 (r. 7). will void as to after-hom child. 3145. CHOSES IN ACTION : administrator's sale of decedent's. 67. arising from tort not assignable, 400, assignee of; pays cost when action concerning, pending, 1278. action by, without pre.judice to defenses existing prior to notice, 400. bills, notes, checks, etc. See Negotiable Instruments, .iudgments. See Judgment. 1178 INDEX. CriOSES IN ACTIO'S— continued : larceny of, punished as larceny of money, etc., 3498, 3499. liens. See Lien. personal representative's rlglit to sue on, 156. plaintiff in attachment sues on defendant's, when, 785. ward's. See Guardian. CHURCHES : burning of, wilfully, a felony, 3338. disturbing congi-egation of, misdemeanor, 3706. exhibiting jack or stud-horse near, during worship, misdemeanor, 3705. obstructing way to, or to spring, etc., used by, misdemeanor, 3776. religious societies, 2670-2074. roads to ; how established. 2087, 2688. showing off curiosities, etc., near, during worship, misdemeanor, 3705. title to. on vacant land, confirmed, 2074. wilful injury to. a misdemeanor, 3673. CIGARETTES : aiding minors to secure, a misdemeanor. 3805. giving away to minors, a misdemeanor, .3804. selling to minors, a misdemeanor, 3804. CITIES AND TOWNS : See Municipal Corporations. CIVIL PROCEDURE : abatement of actions, 415, 1208. See Abatement. of nuisances, 825, 2138, 2142, 2929. See Nuisance, accounts ; action on liquidated and settled, 484. accounting of personal representative compelled, 104-131. action, civil : defined, 351, 2.340. See Action, Civil. distinction between, and equity suits abolished, 354. repeal of statute giving, does not affect, when, 2830. administrator ; actions by and against, 30, 31, 156-165, 167. adverse party examined, 864-872. adverse possession, effect of. See Adverse Possession, advertisement : of notices. See Advertisement. of process. See Publication, affidavits. See Affidavit. account proven by. how, 1625. See Boob Account. alimony pendente lite secured by, 1566. arrest; order for, obtained by, 729. counter affidavits filed, 736. attachment warrant obtained by, 759. bastardy warrant issued on. 252. before whom made, 925-931. claim and delivery : affidavit contains what, 791. continuance asked for by, 530-532. creditor's, in proceedings supplemental to execution, 668. divorce ; must accompany complaint, 1563. injunction granted ou, when, 810. judgment debtor arrested on, when, 671. motions backed by. 875. pleadings verified by, 488-493. See Verification. referee appointed to take, of person refusing testimony, 875. removal of causes by, 425-428. 1455. agricultural lien enforced how, 2054, 2056. alias summonses issued, when, 437. aliens ; time of war not counted as against, 379. alimony, action for ; procedure, 1558. 1503, 1566. 117S INDEX. CIVIL PROCEDURE— to»ii»iMe(J; amendiuents ; bail not discharged by, 757. See Amendment, court proceedings amended wlien, 507, 512, 513. 14U7. pleadings ; wben. 505, 507, 508, 510, 511, 515, 510, 14G8. process, when, 507, 14G7. amercement; constable, 040, 2817, .3004, 3149. See Amercement sheriff, 2817, 2S21, 3149, 2827, 2828. See Amercement, answer; contains what, 477, 479, 481-483, 1460. See Answer, demurrer to, 485. filed, when. 471, 473. judgment tor want of, 556, 560. new matter in, taken as true, when, 503. objection not taken by demurrer or, waived, 478. sham, stricken out, 472. appeal taken from — clerk to judge, 588, GlO-613. See Appeal, Civil Action. corporation commission to superior court, 1074-1076. See Appeal. Civil Action, county commissioners to superior court, 2690. See Appeal. Civil Ac- tion, judge, to supreme court, 588. See Appeal, Civil Action, jtistice's court to superior court — dismissed when. 607. heard on original papers by superior court, 609. notice of, and return, 1491-1494. stay of execution pending, 1490. trial de novo, 607, 1401. who may appeal, 1489. road supervisors to county commissioners, 2683, 2686, 2688. superior court to supreme court — ease on appeal settled, 542, 554, 591. dismissal of; for lack of undertaking, 593, .596. for failure to prosecute, 1543. in forma pauperis, 597. judgment ; as to costs, 1270-1282, 1542. as to exceptions, 605, 1542. certified below, 1526. notice of. 591. stay of execution pending, 598-603. See Execution, transcript of record. 592. luidertaking on, 593. 594. 601. 603. 605. who may take, 585, 587. appearance in person or by attorney, 161. 213, 356, 4n."i, 4(Hi. voluntary ; no summons necessary, 447. appraisers ; allot homestead, 087-689. 693, 694, 709. set aside personal property exemption, 605-697, 704. 700. arbitration : before corporation commission, when, 1073. as to value of dividing fence, 16(i0. argument of counsel controlled liy court, 216. arrest and bail. 726-7.57. See Arrest and Bail, Civil .\i(ion. assault ; civil action for. barred when, 397. assignee of choses In action : action by. 400. costs against, after action brought, 1278. attachment of defendant's property, 758-789. See Attachment, attorney general ; action bv, against corporations, 827. 1194, 1152, 1198, 1242, 124G. to annul land grants, 17.50. oust usurper of oHice, 827. ])roserutP stay bond of railroad. 1084. grants leave to contestant of election to sue. 828. ball. See Arrest and Bail, Civil Action, banks: receiver for, asked by corporation commission, when, 250. nso INDEX. CIVIL PROCKDVRE— continued: bastardy pi-oceedings, 252-264. See Bastardy Proceedings. battery ; action for, barred when, 397. betterments claimed by defendant, 652-G66. See Betterments. bill of particulars granted, when, 494, 14G9. bonds ; actions on. See Bonds ; Bonds, Fiduciary ; Bonds, Official. for cost in civil actions. See Bond for Cost. burden of proof. See Burden of Proof, burnt and lost records perpetuated, how, 327-345. case on appeal, how settled, etc., 501. See Case on Appeal, caveat of will ; procedure on, 3135-3137. See Wills, certiorari, writ of ; bond for costs, 584. challenges to jury ; apportioned among defendants when, 19G5. each party entitled to four peremptory, 1964. talesmen subject to challenge, 1966. charge to jury ; judge's duty to make, 535. must be in writing, on request, 536. request for, must also be written, 538. when written, jury can take, 537. choses in action sued on, party in interest stated, 400. civil process returnable to criminal terms, 1.507. See Process, claim and delivery, 790-802. See Claim and Delivery, claims against state, how prosecuted, 1537, 1538. clerk's duties in actions and proceedings. See Clerk, Superior Court. jurisdiction to decide matters of practice, 358. clerk supreme court ; duties in appeals. See Clerk, Supreme Court, cloud upon title ; action to remove, 1.589. color of title. See Color of Title. commissioners' reports not set aside for trivial defects, 724. complaint, 465-4G9. See Complaint, compromise of actions, 859-863. See Compromise, condemnation proceedings, 2575-2598. See Condemnation Proceedings, conditions precedent, how pleaded, 498. confession of judgment, when and for what, 580. debtor confessing makes verified statement, 581. judgment entered ; execution how, 582. contested elections : procedure, 826-845. See Contested Elections, contempt of court ; generally, 939-945. See Contempt. administrator guilty of, when, 100. adverse party refusing to testify, punished as for, 869. corporation commission's power to punish for, 1067. county commissioners may punish for. 1318 (22). judgment or order, failure to obey, punished as for, 615. magistrate failing to return preliminary examination, 3206. profane swearing in justice's court, 1426. refusing to witness before receiver, 1227. supplemental proceedings, disobeying orders in, 684. trustee failing to pay trust fund into court on order, 851. continuance ; affidavit to secure, before term, 530. application to secure in term, 531. contracts ; joint, how action brought on. 413. persons severally liable on, action brought how, 412. statute of limitations bars action on, when, 391-393, 395. 39G. where joint and several ; summons and judgment, 45.5-4.59. corporation commission's jurisdiction and powers, 1054-1118. See Corpo- ration Commission, costs in actions and proceedings. 12.59-1282. See Costs, counsel may be assigned pauper, when, 452. counterclaim; what constitutes, 481. See Counterclaim. answer setting up, plaintiff may reply, 484. no reply ; judgment, 558. 1181 INDEX. CIVIL PROCEDURE— coii^mMfd; counterclaim — contiinicd. judgment on ; by default, when, 556. where counterclaiui exceeds claim, 553. set up by answer, 479, 4S1, 482. "court" means "clerk" when, 352. creditors' action against heir and representative ; procedure, 58-58, 94, 104. damages ; assessed in certain cases, 553, 2575-2598. See Damages. in arrest and bail, 730. claim and delivery, 5.")1, injunction, how ascertained, SIS. declaration. See Complaint, defendant ; defined, 355. See Defendant. who may be, 406, 407, 410-414. defense bond, 2G9, 273, 453, 454. demurrer to plea, 470-478. See Demurrer to Pleading. to evidence, 539. depositions taken and read. 1645-1C55. See Deposition, detinue. See Claim and Delivery, disabilities ; who under, 302, 303. See Disabilities. cumulative, 3C4. limitations, statute of, how affected by, 362, 3G3. must exist when right of action accrued, 365. removed ; actions by, when, 362. discontinued when chain of summonses broken, 438. disclaimer of title by defendant in trespass, 863. discovery, bills of, abolished, 864. dismissal of action, 466, 539, 563. examination of parties. 864-872. See Examination of Parties, error, writs of, abolished, .583. evidence in civil actions. See Evidence, execution, Gl.5-640. See Execution. sales under, 641-651. See Execution Sales, exceptions upon trial, when and how taken, 542, 554. exemptions, 685-709. See Homestead, Personal Property Exemption, executors, etc., actions by and against. See Administration, fact; issues of; how tried, 527, 544, 546, .547. questions of, how tried, 357. feigned issues abolished, 357. forms of action, no distinction in, 354. garnishment, 2880. See Attachment, guardian ad litem, 406, 407, heir commences action within one year of nonsuit, 370. homestead allotted, 68.>693, 699-709, See Homestead, idiots sue by guardian or next friend, 405. defend, how, 406, Infants sue by guardian or next friend, 405. See Infants. defend, how. 406. in forma pauperis ; action brouglit, 451. injunction. 800-821, See Injunction, inspection of writings. 1656. Instructions to jury. See under this head. Charge to. etc. interlocutory judgment. 5.55. interpleader in attachment, 789. in claim and delivery. 800. Issues of fact. .526-529, .544. .546-549. 1935. See Issues of Fact, not raised by pleadings, ordered tried, 3.57. of law, .543, .545. 610-613. ' See Issues of Law. joinder of actions, 469. misjoinder groruid for demurrer, 474. demurrer sustained, causes divided, 476. INDEX. CIVIL PROCEDURE— coMimwef/.- joinder of parties, 409-413. luisjoiuder ground for demurrer, 474. joint, and joint and several obligors ; procedure against, 412, 413, 455-459. judge;- appeal from clerk to, 588, 610-G13. See Appeal, Civil Action. appeal from judge to supreme court, 588. See Appeal, Civil Action, judicial sales ; confirmed, 1525. proceeds of, collected on motion, 1524. judgment, 555-582. See Judgment. confessed, 580-582. jurisdiction ; clerli, 352, GlO-613, 710-725, 901. contested by demurrer, 474. corporation commission, 1054, 1094-1103. county commissioners, 1318, 2683, 2690. judge in vacation, 571, 613, 720, 813-815, 846. justice of the peace, 1419-1426. presumed when judgment pleaded duly rendered, 497. road supervisors, 2G83, 2086, 2688. superior court, 1500-1505. supreme court, 1537, 1539. jury ; drawn how, in superior court, 1957-1963. See .Jury. challenges to, 1964-1966. justices' courts, 1479-1488. See Courts, Justices'. talesmen summoned ; qualifications, 1967, 1968. trial by, 527, 535-538. verdict of, 550-554. justices' courts; civil jurisdiction, 252, 1419-1426. See Courts. Justices'. appeal from, 607-609, 1489-1495. forms used in, 1496. jurors in, 1428-1443. See Courts, Justices'. judgment and execution in, 1479-1488. procedure in ; before trial, 1444-14,56. See Courts, .Justices', at ti-ial, 1457-1477. rules of pleading in, 1457-1463, 1465, 1468. libel : action for, 2012-2014. limitations, statute of; 199, 359-399. See Limitations, Statute of. lis pendens ; notice of, filed where, 460. cancelled when and how, 46.3. effect of, on subsequent purchasers, 462. must be followed by prosecution, 461. special provision for Buncombe County, 464. lunatics ; defend by guardian. 406-407. See Insane Persons. sue by guardian or next friend, 405. mandamus, 822-824. See Mandamus, married women: as parties. 408. See Married Women. execution against, what to be sold, 617, 622. judgment against or for, how collected. .563. misjoinder of causes of action, demurrable, 474. demurrer for, sustained, action divided, 476, 506. misnomer corrected by amendment, 507, 510. motions and orders, 873-877, 1507. See Motions ; Orders and Decrees. afiidavit for. or against, 875. notice of, 877. negligence; contributory, how pleaded and»proved, 483. new promise to pa,v, repels bar of statute, 371. new trial ; motion for, in superior court, 554. none, in justices' courts, 1489. party may appeal, when new trial refused, 587. next friend ; infants and idiots sue by, 405. nonresident ; served with process by publication, 442. statute of limitation, how affects, 366. 1183 INDEX. Cn'IL PROCEDUUE— eo»/iHHcr/.- nousuit ; actiou can be renewed within a year, 370. defeudaut entitled to judgment, 406, 5U3, 715, 539. lilaintiff not allowed, after verdict, 1520. notices ; served bow, 460, 878-882, 886. See Notice, nuisance; Judgment in actiou to abate, 825. office ; contest over, procedure, 826-845. See Contested Elections, orders : defined, 873. See Orders and Decrees. injunction applied for ; defendant ordered to show cause, 813. vacated or modified without notice, 514. parties to civil actions, 400-418. See Party to Action or Proceeding, partition proceedings, 2485-2503. See Partition, pauper suit, how brought, 451. appeal by pauper, 597. court may assign counsel to pauper, 452. recovers cost, when, 1265. personal property exemption, 685. See Personal Property Exemption, petition ; clerk hears summarily, when, 719. See Petition. ex-parte, 718. filed when, 714. failing to file in time, nonsuit, 715. time for filing enlarged, 71G. place of trial. See ^'enue. Civil Action, plaintiff; defined, 355. See Plaintiff. costs allowed, when, 1264. nonsuited, when, 466, 539, 563, 715. who joined as plaintiffs, 408-410. pleadings. See Pleadings. amendment of, 505-514. See Amendment. answer. 360, 361, 479-483. See Answer. complaint, 465-469. See Complaint. construed liberally, 495. demurrer, 474-478. See Demurrer. justice's courts, rules in, 1457-1463, 1465, 1468. reply, 484-486. See Reply, possession ; effect of, in actions to recover. See Adver.-'c Possession, process, indorsement made on, 3149. See Process. amercement for failure to return prnperlv, 2817. served how, 440, 442-444, 770, 1530, 1531. return evidence of service of, 1529. sheriff makes return, 2817, 2819. processioning land, 325, 326, 328. prosecution bond. 209, 273, 411-415, 4.50. See Prosecution Bond, provisional remedies, motions and appeals in, have precedence, 874. publication of process. 442, 443, 444, 766, 770. See Pulilication. purchase-money of land, how set out, 468. 627. quo warranto proceedings, 826-845. See Quo Warranto, real party in interest brings action, 400. complaint should state who he is, when. 282. examined before and at trial, 871. receivers, api)ointment of. bond, etc., 846-849. See Receiver, recordari, writ of, allowed ; bond, 584, 606. reference, 518-525. See Reference, rehearing; before jastice. when. 1478. relator ; leave granted to. to contest oflice, 828. inducted into office, when, 843. remedies are by action and special proceeding, .346. criminal and civil are not merged, 3.53. removal of causes, 425-428, 14.55. See Removal of .\ctions. reply of plaintiff, 484-486. See Reply. restitution made defendant in certain cases, 605. 149.5. See Restitution, restraining order. See Restraining Order. 1184 INDEX. CIVIL PROCEDURE— cmtiiiued: return of process, 2S17, 2819. rules of practice prescribed by supreme court, 1541. service of process, 440, 442-444, 770. See Process, sheriff's duties as to civil actions. See Sberiff. special proceedings, 710-725. See Special Proceedings, statute of limitations, 199, 359-399. See Limitations, Statute of. stay of execution, 590, 598-604. See Execution, subpoenas ; issued, served and returned, 884, 886, 1518. summons, generallj% 429-449. See Summons. Sunday ; no arrest on civil process on, 727. superior court ; jurisdiction of, 1500-1505. See Courts, Superior. civil process returnable to criminal terms, 1507. minutes of, read each morning, 1519. oflieer attending juries Sflorn, 1527. procedure on certificate of supreme court, 1526. supersedeas issued wbep, 584. supplemental proceedings, 667-684. See Supplemental Proceedings, supreme court; jurisdiction, practice. See Court, Supreme, tender of compromise, effect, 860, 861, 863. time; computed bow, 887, 888. ti'ial of civil causes, 526.543. See Trial, Civil Action, trustee admitting having trust funds ; ordered to pay. 8.52. trust funds ordered seized by sheriff, when, 851. undertakings for cost ; appellant's, 593-595, 597. arrest and bail, 730, 737-747. attachment, 763, 764, 773-775. claim and delivery, 793, 794, 795, 797, 800. See I'.oiid for Cost. contested election, 828-831. 8.35. defendant in land suits, 453, 454. garnishment, plaintiff's suing on defoHdant's note. 785. injunction, 809, 817, 1205. plaintiff's, in regular actions, 450, 451. venue of civil actions, 419-428. See Venue, Civil Action, verdict in civil actions, 550-5.54. See Verdict, Civil .\ctlon. verification of pleadings, 488-493. See Verification, waste ; procedure in action for, 853-858. See Waste. CLAIM AND DELIVERY : action of ; requisites, 791, 793. not allowed, when, 2855. affidavit, contains what, 791. costs iu; judgment for, 1264 (2), 1266. defendant's undertaking to replevy. 79.5-797. delivery of property claimed, when, 700. fiat of clerk to sheriff, 742. intervener allowed to interplead when, 800. gives undertaking to take property. 801. judgment in action of, 570. landlord recovers crop of tenant by, when, 1993. tenant's remedy when landlord refuses to divide. 1994. limitations, statute of, bars, when, 395. order in ; for sheriff to seize and deliver to plaintiff. 792. execution of, when property concealed. 798. not granted, when property taken for ta.x, 2855. requisites before issuance of, 792, 793. sheriff makes return in ten days, 802. plaintiff's undertaking in. 793, 794. property ; concealed, how order executed, 798. delivered to plaintiff, when, 79.5. 796. intervener when, 801. party entitled, when, 709. Rev. Vol. 1—71 1185 INDEX. CLAIM AND DmAyERY— continued. ■ re*^'ovei'y of iiroperty forfeiteil to state \>y. 845. return of uudertaking, notice and affidavit. 802. slieriff; taking property, keeps in secure place, 799. makes return, when, 802. responsible until defendant's sureties justify, 796. summons in, may be accompanied by order. 790. sureties on undertakings In ; .iustification, 794. 790, 797. tbird party claiming property, what done, 800, 801. undertaking: plaintiff's, for delivery of property. 793. copy served on defendant. 793. defendant excepts to, 794. failing to except, waives, 794. sheriff liable luitil sureties justify, 794. defendant's, for replevy, 79.5. sheriff liable until siu-eties justify. 79G. sureties justify or sheriff delivers to i»laintiff, 790, 797. intervenor's ; served on plaintiff and defendant, 800. venue of action, 419. CLAIMS AGAINST STATE : supreme court to hear and determine, 1537, 1538. issues of fact tried how, l.'i.S8. judgment merely recommendatory, 1537. CLAMS : l)ed of, may be planted after license obtained, 2372. ■ county commissioners inay survey, 2374. only one allowed a person in same county, 2372. party can not stake off. natural bed, 2372. staking off natural bed forfeits license. 2374. beds entered as vacant land, how, 2370. close season on taking, 2423. county commissioners may have beds surveyed, 2374. entered beds, liable to taxation, 2380. grant of land for cultivation of, 2376. issued by secretary of state, 2378. price paid for beds per acre, 2379. restrictions and conditions of, 2378. state controls all clam beds, 2375. taking, in certain counties, from .Vjiril 1 to Nov. 1. misdemeanor, 242.3. CLERGYMEN : See Minister of the Gospel. CLERK, SUPERIOR COURT : acting without giving bond, misdemeanor. ,3505. acts as commissioner of affidavits, 925. administration accounting compelled by, 1(14-131. See .\diininstration. final settlement approved by, 150-154. administrator, etc., removed by, 31, 34, 35, 37, .38. admitting funds in his possession, judgment by court, S.">o. after-boi-n child's interest cared for liy, 138-143. nmcrred for f.-iilure to deliver instruments to register, 2(i."(0. annual report of: apiiroved and published, 918, 919, 1380. compelled bow, 920, 1381. appeal from, on administration account stated, 119. 12i>. on matters of law. C.lO-Ol.S. appeals to supreme court: duties as to, 591. .592, 1280. when supremo court certifies decision down, clerk's diity. 3283. appointed by judge of dislrh't. when. 892, 893, 89.'i. INDEX. ILEUK, SUPERIOU COURT— con* mwed!; apiJoints : substitute trustee or mortgagee, wheu, 1038. county commissioner, in case of vacancy, 1314. justice of tLe peace, when, 1411. apprentices indigent cliildren, 184-206. See Apprentice, bill of cost itemized by, in criminal cases, 1256, 1306. in civil cases, 1252. blanlis, etc., furnished litigants, etc., by, 911. bond of; approval of; term of, 295, 296, 311, 1318 (23). failure to give, office declared vacant, 892. filed with register of deeds, 296. security iu lieu of, 268, 271. surety companies may give, 273. books to be kept by, 913, 915, 3598. certain books indexed, etc., 896. commissioners to take probates in other states, appointed by, 991. compensation of, for keeping certain funds, 152. condemnation proceedings : jiu-isdiction in. 2.579-2598. contempt ; clerk can punish for, 942. contested election ; duty of clerk when .iudgment rendered, 837. costs ; bill of, in criminal cases, prepared by, 1256, 1306. civil cases, itemized and attached to execution, 1252. clerk must enter all costs in judgment, 1255. county commissioners ; vacancy in board of, filled by, 1314. furnish clerk with stationery, books, etc., 896. "court" means "clerk" when, 352. criminal statistics forwarded by, to attorney general, 917. penalty for failing to forward, 917. custodian of county official bonds, except his own, 311, 915. session laws, supreme court reports, etc., 3598. depositions taken by commission from, 1645-1652. See Depositions. passed upon by clerk, 1052-1654. deputies of; appointment, 898. administer oaths, 2359. clerk liable for acts of, 900. jirobates adjudicated by and deed ordered registered, 999. record of appointment and discharge, 899. subject to same laws as clerks, 900. disposing of books, etc., belonging to office, misdemeanor, 3598. disqualifications removed by agreement, 903. disqualified ; for license to practice law, 210. for commissioner in partition proceedings. 902. hearing proceedings in certain cases, 902-904. dockets : appeal from justice's judgment. 608. stay of execution. 621. election of, when and how, 890. election returns : refusing to give copy, misdemeanor. 3398. embezzling funds or property of office, felony, 3408. estates of idiots, lunatics, etc. : duty as to. ] 890-1 90.8. execution ; clerk issues, when, G18. • penalty for failure to issue, 618. return of, docketed ; penalty for failure, 630. stayed ; clerk enters on docket, 621. executor in will, disqualifies from acting as clerk as to, 902 (3). fee bill ; clerk's duty to keep, posted, 2774. fees of, in the different cases, 266, 1234, 2373. 2377. fines, iienalties. etc., itemized statement to be kept by, 1377. forfeits his office on account of absence. 909. guardianship of orphans ; duties as to. 1758. 1766-1776. See Guardian, guilty of infamous crime ; removed from office, 894. Indigent children paid b.v, when, 924. insane person, nonresident, knowingly committed to hospital by, 3.591. 1187 INDEX. CLERK, SUPERIOR COVRT— con tin lied : insolvent debtors ; duty as to discbarge of, 1915-1949. interest in estate bars, from acting with reference to, 902. interlocutory orders, etc., duty to adjust costs in, when, 1255. inventory of decedent's estate compelled by, 43. issues of fact transferred by, to ti-ial doelvet, 717. judge exercises powers of, when, 905. judgments ; duty as to. in general. .572. 575, 579, 7S2, 1955, 1956. of corporation dissolution, duty as to, 1211. justice on appeal, disposed of ; clerk's duty, 1479. jm'isdiction of, 352, 358, 901. administration of estates, 16, 17. juror's fees paid by, to treasurer, when, 922. jury sworn by, 1960. record of jurors kept by, 19S1. justices ; list of, to be sent secretary of state by, 916. judgment of : filing and docketing by clerk, 1479. on appeal, disposed of, clerk's duty, 1479. keeps certain records and reports, 915. leave of absence obtained, bow, b.v, 910. letters of administration ; issued by, 3-36. party entitled not applying, citation issues, 12, 13. revoked, issued to others, 35. liability of ; for defaults concerning guardianships, 1784. 1785. safe-keeping of records, etc., 913. on bond, for administration funds, 152. license issued by, to nonresident hunters, 1874. to plant oyster beds, 2373. malpractice of, in office ; penalty, 894. money in hands of; duty to pay person entitled. 921. not called for, used by county, 923. names of persons changed ; duty as to, 2147, 2149. nol. pros, with leave entered ; duty of, 3273. notary public ex officio, 2349. oath of, 891, 2357, 2358, 2360. office of, kept at courthouse, 909. examined by solicitor. 897. furniture furnished by commissioners, 896. hours open, 909. permission for absence from. 910. official papers, etc., duty to receive from predecessor, 906. orders, deeds, etc.. to registration, 999, 1001. papers, books, etc., filed by. 912. partition proceedings ; clerk can not be commissioner in, 902. clerk's duties and powers in, 2485-2520. See Partition, penalty against, for failing to report criminal statistics, 917. failing to docket execution return, 636. furnish names of liquor dealers to grand jury, 2827. issue execution, 618. settle, on notice, 1302. transfer records to successor, 907. power of sale in mortgage in lieu of bond executed by, 265. 2l!6. powers of. generally. 901, 942. when disqualified to exercise, who does, 902, 905. disqualification waived, when, 903. practicing law while holding office, a misdemeanor, 3641. probate judge's duties performed by, 889. probate of deeds: nonresident taking, clerk's certlflente rpq\iired, 1007. passed on by clerk. 999, 1001. validated, where clerk was party, 1011, 1015. when clerk is a party, 995. of will, 3122-3134. 1188 INDEX. CLERK, SUPERIOR COURT— continued : refusing to turn over moneys to county treasurer ; effect, 1407. books, etc., to successor, 3598. registering physicians illegally, 3647. relation to partj- to proceeding, disqualifies to act, 902. remits forfeiture on recognizance, when, 3221. removal from office for malpractice, etc., 894. removal of proceeding from, when interested, 904. reports of ; certain, required. 916, 917. resigns, to whom, 893. return of execution docketed by, on judgment docket, 636. sales, administration ; duties relative to, 01-86, 171. sentence, copy of, furnished manager of workhouse, 1369. special proceedings ; duty to adjust costs in, when, 1255. successor to ; clerk's duty to transfer records to, 907. supervisors of roads, reports of ; duties as to, 2713. supplemental proceedings : duty in, 607-684. surveys or plots ; errors in. corrected by petition to, 1738. swearing falsely to certain statements, misdemeanor, 3605. term of office of, 890. transfer of records to successor by, compelled, 907. transfers issues of fact to civil issue docket, 529, 588, 717. trustee dying or removed, clerk appoints successor, 1037. unperformed duties on going out of office, who assumes, 908. vacancy in office, how filled, 895. wife of ; named as executor, disqualifies clerk to act as to, 902. party or witness to deed, disqualifies clerk to probate, 902. will ; probate of, what clerk nmst ascertain on, 3125. production of. compelled by, 3124. witness tickets issued by, to witnesses, when, 1299. witnesses' fees paid by, to treasurer, when, 922. witnesses subpoenaed by, 1639. 1640, 1856. CLERK, SUPREME COURT : accounts to court for money In hand, 1.554. bond of, 290, 265, 273. chosen, how, 1553. decisions of court certified to court below by, 1549. penalty for failure to certify in time, 1549. execution for costs issued by. when. 1549. fees of witnesses to supreme court taxed bv, 1547. oath of, 290, 2357, 2358, 2360. office of. kept where, 290. opinions and judgments rendered, clerk's duty, 1548. practicing law in state courts, misdemeanor, 3641. records proceedings in cases, when, 1550. rules of practice certified by. to superior court judge, 1.541. CLIENT : See Attorney at Law. CLOUD UPON TITLE : action for removal of, 1589. CLOSE SEASON: for fishing. See Fishing. hunting, 1881-1889. See Hunting, taking clams, 2423. diamond-back terrapin, 2370. oysters. 2414, 2383. CODE OF CIVIL PROCEDURE: See Civil Procedure. 1189 INDEX. COLLECTOR OP DECEDENT'S ESTATE : accouuts to successors : enforced, 25. action against; on bond, 30. by successor, 31. administration of estate. See .\dniinlstrntion. appointment of, 22. bond of, 23, 265, 273, 319. action on, 30, 31. barred as to principal, 393. sureties, 893. failure to give, letters revoked, 34. mortgage in lieu of, 265. renewal or increase of, required, 32. surety company may give. 273. expenses of bond paid by estate. 277. surety on, released bow. 33. commissions, eutitled to, 149. costs; liable for, for suing or defending in bad faitb. 1277. joint tenant witb other representative, 106. letters revoked ; for disqualiUcation or default, 38. for failing to give bond, 34. file inventoiw, 43. will being found and proven. 37. liability of; for conversion, 107. for costs, when, 97. selling personalty out of time, 06. waste, 167. oath of, 29. powers of, generall.v, 24. cease, when, 25. qualifications of, 23. sale of personalty b.v, under order, 61. COLOR OF TITLE : adverse iiossession witb, gives ownership, when, 333, .3S2. .384. deed is. when registration desti'oyed, .3.33. grant issued not color, when, 1699. seven years' adverse possession witb, gives title, when, 382. twenty-one years' adverse possession witb. gives title, when. .380, COLT : lien on, for season, 2024, 2025. COMMERCI.VL FEEDING STUFF : See Food. COMMISSIONER OF AfiRICULTURE : See Volume II. salary of; paid how, 2749. COMMISSIONER OF LABOR AND PRINTING: See Voluino II. compensation of assistant to, 27-53. salary of, and exi)enso allowance, 2753. COMMISSIONERS. COUNT\ : See County Connnissioners. COMMISSIONERS OF AFFIDAVITS: appointed liy governor ; term ; powers. 920. appointment of; where recorded. 928. certified to clerks, 928. clerks and notaries autliorized as, 92.5. clerks of courts of i-ecord of other states are, 9.'{1. fees of, 2796. 1190 • mcEX. (,'OMMISSIONERS OF AFFIDAVITS— co». taxes; failing to settle, after notice, penalty, 1302. town constable ; powers ; tax collector. 2030. 2040, 2072. trea.surer demanding public moneys of, effect of refusal, 1398 (3). 1407 vacancy in office of, filled by county commissioners, 936, 1321. 1193 II^DEX. CONSTRUCTION OF STATUTES : See Statutes. Construction of. CONTAGIOUS DISEASES: See Crimes and Punisliments. CONTEMPT : administrator, etc., failing to account, punisbed for, 100. adverse party refusing to testify ; punished as for, 869. attorney guilty for refusing to expose client's fraud, etc.. when. 10)20. committed outside of court's presence : proce. justice not returning examinations, recognizances, etc., attached as for. 320G. offenses punished as for ; procedure on, 944, 94.5. profane swearing in hearing of justice's court, 1426. punishment for, 940. summarily ; procedure, 941. record of. I^ept: attached 1o comniittal, 041. supplemental proceedings ; disobedience of orders in. 684. trustee failing, after order made, to pay over trust fund, 851. what constitutes, 939. 944. who may punish for. 942. 1007, 1318 (22). will ; party refusing to produce punished for, 3124. witness punished for, for refusing deposition, 1649, 16."i.i. CONTESTED ELECTIONS : arrest of defendant in certain eases, 831. attorney general grants leave to contestant to sue, 828-.S.SO. . leave withdrawn, 830. l)i)nd of jirivate relator contesting office, 828-830. burden of proof in, 2368. clerk's duty to issue writ to enforce judgment, when. 837. contest begun bow, 827, 828. must begin within ninety days, when, 8.34. corporate election of directors contested, 1189. defendant ; bond of. before answering, 835. fined, when, 837. refusing books, etc., of office to person entitled. 3601. depositions taken in. how, 16.')4. dismissal of action for insufficient bond, 830. emoluments of contested office. 835-837. 842. 844. execution stayed, how. pending appeal of defendant. .«42. judgment in. 837, 8.39, 840. enff)rced by writ of mandamus, 841. filed ; duty of clerk to issue writ to put into jiossession, 837. leave granted to ])rivate relator to liring contest, 828-8.30. limitation, statute of. l)ars action when. 834. person olitaining judgment inducte81. contingent remainders sold, how, 1590. prior sale of, valid;ited when. 1.591. tenancy by curtesy, 2102. 1194 INDEX. CONTINUANCE : allowed wbeu. 530-532. before tei-m ; affidavit for, 530. counter affidavits, 532. during term ; affidavit for, 531. counter affidavits, 532, justice granting, bail allowed prisoner, when, 3213. CONTRACTS : accounts for goods sold by, 1622-1625. actions on : barred when, 390-393, 395, 396. joint and several debtors sued, 455-457. jurisdiction of courts in, 1419, 1500-1.505. parties to, 412, 413. usurious ; costs not allowed plaintiff, 1271. venue of, 424. admission of genuineness of, procured from defendant, 1656-1C58. aliens, eonti-acts of, validated, 183. bonds of officers, fiduciaries, etc., 265-324. book accounts, 1022, 1623. certain, must be in writing, 974-978. See Frauds, Statute of. "in writing" defined, 2831 (10). compromise agreements, 859-863. See Compromise, conveyances. 940-1046. See Conveyances, corporate ix)wers as to, 1128, 1129. county commissioners" power to make, 1318. debt due by. bears interest, when, 1954. debtors on joint aud several, bow served with summons, 455-457. decedent's, to convey land : deed made how. 83. directors, state institutions, can not make, for own benefit, 3572. futures ; certain contracts for futiu-e delivery void, 1690. gaming; void, 1087-1691. See Gaming Contracts, guardian's, for ward, 1787-1790. husband and wife ; conti'aets between, 2107, 2108. indentures apprenticing child. 197-206. See Apprentice, insurance agents ; contracts to restrict compensation of, void, 3491. interest on, 19.54. landlord's, with tenant. See Landlord and Tenant, liens generally. See I.ien. married woman's, validity of, 2094-2097, 2101. 2113. municipal corporations ; powers to make. 2910. new, to revive debt, must be written, 371. notes, etc. See Negotiable Instruments. ofBc-es. public : contract for sale of, void, 2366. parties In action on, may agree as to amount of damages, 861. partnership, 2523-2532, 2543, 2544. proof of. otherwise than by attesting witnesses, 1004. railroads making: as to rates between one another. 1108. so as to give shipper advantage over another, penalty, 2503. registration of ; requireIe. 1578. fee-simple estate conveyed without word "heirs." when, 946. "heirs" of living person means children, 1582. .ioint tenancy : survivorship abolished, 1579. slaves : deed of gift made to, passes what, 949. wills construed how. 3138-3146. conti-act to convey land by husband and wife, 952, 1003. 1004. copies of ; received as evidence, when, 988, 1.598, 1.599. corporations', of land, 1130. void as to certain torts, 11.30. description of land in, vague, not fatal error. 948. destroyed, and record destroyed, how lioundaries established, 328. devisee's, within two years from letters granted. 70. evidence: grants, deeds and wills as, 1.590-1014. See Evidence, executed ; by public officer after term expires, when, 950, 2905. by sheriff. See under this head, Sheriff. to stay proceedings on ajipeal. GOO. execution sale: purchaser at, entitled to, 651. fee-simple estate passes without word "heirs," when, 946. forgery of. a felony, 3424. fraudulent, generally, 960-966. See Fraudulent Conveyances, genuineness of; admission of, iirocuressession deemed transferred, 1584. warranties ; collateral, abolished, 1.5S7. wills, 3111-3146. See Wills. OONA'ICTS : See County Convicts. aiding, in assault or insurrection, misdemeanor, 3GG2. confining, in improper apartments, 3660. conveying to. weapons or instrument for escape, 3002. murder or assault following, person conveying punished, how. 3662. county convict force worked on public roads, 1355. escape of ; by breaking prison, misdemeanor, 3057. hired out to another county, misdemeanor, 3658. permitting ; misdemeanor, 3659. farming out certain prisoners, 1352. female ; not worked on roads, 3596. guard for county ; c-ommissioners allow what, 27T7. mistreating; misdemeanor, 3059, 3001. prisoners. See Prisoner. trading with, in certain articles, a misdemeanor, 3062. what, .sentenced to work on public roads, 1355. COPARTNER : See Partnership. COPY : adverse party must give, of certain documents, when, 1656. bill of exchange : protest of, on copy, when, 2321. book account; evidence when, 1024. court papers lost ; supplied by, 504. deeds; copies of, registered, when 337, 338, 988, 1599. election returns ; register and clerk refusing ; misdemeanor. 3.398. evidence ; deeds, etc., proven by, 1952-1619. See Evidence, grants; certified copy of, registered, 1729. orders appointing road overseers served b.v, 2714. ordinances of city )n-oven by, when. 2930. process served by leaving, 440, 1243. 2714. register of deeds certifies, of deed, 2057. wills ; lost, certified copies admitted to probate, when, 329. certified copy from another state probated, how. 3130. COPY-SHEET; defined, 2805. CORN-MEAL ; sale of, regulated, 3060, 3810. CORONER ; action against, for trespass under color of office, barred, when, 397. bond of, 299. mortgage in lieu of, 265. proved, etc. ; registered ; as evidence, 300, 308. suretj' company can give, 273. county treasurer demanding settlement of; elTect of refusal. 1407. 1.198 (3). duty; to hold inquest, when, 1051, 3797. to perform duties of sheriff, when, 10.')2, 2811. election of, 1047. fees of. 2775. hiiliens cnrjius; writ dlrcclod to, when, 1836, 1S37. iuqvie.st of, 1051. .lurors' compensation, 1053. physician summoned, when ; e.\cei)tions, 1051. fees of physician, 2775. 1198 INDEX. CORONER— co??i;n«e(i!.- mining disaster ; refusal to hold inquest over dead ; misdemeanor, 37'.)". oath of, 1048, 2358. penalty for not accounting, on notice, 1392. qualifies how, 1048. sheriff, when, 1052, 2811, 2819. See Sherife. special, appointed by clerk, when, 1047, 1049, 1052. swearing falsely to statement required by law: misdemeanor, 3005. vacancy in office of, filled how, 1321, 1047, 1049, 1052. CXDRPORATION COMMISSION : accidents on railroads, etc., investigated by, 1065. acc-ounts required to be kept by, 1115. actions for injuries resulting from violating of rules of, 1091. barred when, 1091. brought in whose name, 1092. remedies cumulative, 1093. for recovery of penalties inflicted by, 1092. venue of, 1092. adopts a seal, 1054. annual report of, to governor ; printed, 1117. appeals from, to judge at chambers, 1074. cause entitled how, 1075. how taken, 1074. right of, 1074. when heard, 1074. to superior court, 1074-107(5. burden of proof a.s to railroad rates being fair. 1075. cause entitled how, 1075. docketed, how, 1075. how taken, 1074. priority in time of trial, 1075. right of, 1074. tried by judge at chambers, wheu, 1076. when heard, 1074. to supreme court from superior court, 1077. appeal does not vacate rates. 1079. judgment on, enforced by mandamus, 1080. state gives no undertaking for costs, 1077. undertaking of ra-ilroad to vacate rates, jiending, 1078. writ of mandamus, issued to enforce judgment on, 1080. refused : appeal to sujireme court, 1081. appropriation for expense of, 1118. arbitrator in controversies with corporations, wheu, 1073. attorney general ; duty of, when corporation persists in violations, etc., 1113. represents commission before interstate commission, 1110. banks; commission's power over, 240-251. corporation certificate; copy filed with commission, 223. examiners : appointed by, 246. See Bank Examiners, compensation. 249, 2755.- powers and duties, 246. 247. 249-251. reports of. to commission, 248-251. receiver of, applied for by commission, when, 250. reports of, to commission ; annual, 2-14. quarterly ; published, 242. special, when, 243. penalty for failure to report. 245. bill of lading required to be given shipper, 1111. building and loan agents required to exhibit books to, .3329. agent refusing; or making false statements; misdenieanor, 3329. 1199 INDEX. CORPORATION COJIRIISSION— cwi^iNi/cff.- canal companies ; rates of, regulated by, 1099. cars transported over otber lines; rates for, fixed by, 1099 (5). chairman of ; chosen how, 1055. powers of, over banks and building and loan, etc., 10G2. clerk of, chief; how appointed; term of office, 10G3. qualifications, etc., 1063. clerks and stenogi-aphers to; compensation, 2754. commissioners ; chosen, how, 105.5, 1056. compensation of, 2754. forfeit otHce, when, 1058. number of, 1055. oath of, 1059. qualifications of, 1058. term of office, 1056, 1057. compensation of members, clerks, etc., 2754. contempt ; power of commission to punish for, 942. corporations; comniissiou's duty when law of. violated, 1113. costs; petition of railroad to fix speed of trains dismissed, 1102. hearing of, costs paid how, 1103. court of record, 1054. open at all times, 1061. demurrage ; rate of, fixed by. 1100. dejDot ; abandonment of, prohibited, when, 1098. erection of, required, when. 1097. union passenger station, required, when, 1097 (3). discrimination in rates prevented by. 1095. ease of, may be carried to interstate commission, 1110. evidence before, governed by rules in civil actions, 1069. excursion rates not made but approved by, 1099. expenses of, what to include, lllS. paid on warrant of auditor, 1118. express companies, rates of, regulated by, 1099 (31. penalty for not making reports to conunission, 1089. fares. See under this head. Rates, etc. fees of othcers serving process of, 1071. fines, etc., received by, paid state treasurer, 1114. fiscal year of, ends on .Time .30th, 1116. freight allowed to be carried free, when, 1105. freight rates. See under this head. Rates, etc. freight receipts; must be given shippers. 1111. presented by consignee, with charges, freight delivered, 1111. industrial development; rates looking to. fixed how, 1099 (7). injunction ; asked to vacate rates fixed by, pending appeal, 1082, 1083. bond before order of, issued, 1082. increase of bond ordered; not marie; injunction vacated. 1083. sued on, in name of state, when. 1084. recovery ; application of, 108.5. party entitled to, barred of, when, 1085. investigations by ; duty to make, 1064. commissioners or clerk ma.v administer oaths, 10.54. evidence in accident investigation written and filed, 1065. jim-crow car law; commission may exenijit certain carriers, 2620. judgment of ; affirmed on aiipeal, how enforced. 1080. superior court affirnihig, as to rates; effect, 1079. as to maximum speed allowed by towns, etc., 1102. jurisdiction of. 1054, 1094-1103.- lumber; rates on dressed, shippe. first meeting ; how called. 1142. foreign, 1193, 1194. See Foreign Corporations; venue of action against. 423. forfeits franchises, when ; judgnient. 1209. 1210. formation of. See undci- this bead. Charter, etc. franchise of, contested. .s-_'i 1-8-1 .'>. IIIOO, 1071, 1196, 1197. 1209. 1210. procedure. See Quci Warranto, fraud by officers of: such officers liable, 115.5. gas companies; can supjily electric lights. 1132. gi-anted special powers over highways, 1133. general corporation law ; its relation to all chartei*s, 1136. can l>e amended, and corporations bound, 11.36. incorporator dying, vacancy filled. 1143. incorporators: become corporation, when. 1140. direct affairs \uitil directors elected, 1141. injunction to suspend business of. granted, when. 120.5. insolvent; laborers have first lien on assets. 1206. property of. sold pending litigation, when, 12.32. intestate's estate liable for inip:iiil stock assossnient. 1162. inventory of cori)orate property' filed by re((>iver, 122.5. issuing scrip unlawfnll.v ; penalty, 3711. 1204 INDEX. CORPORATIONS— coHtinHed; juclgiuent dissolving ; eutered, when, 1207. filed with seeretai-y of state, 1211. judgment of forfeiture of charter, when, 1209, 1210. "judge of superior court" refers to w'hom, in chapter on, 1247. ~ land conveyed by ; conveyance void as to torts, etc., 1130, 1131. loans can not be made to stockholders. 1100. laborers for, have first lien ou assets, when, 1206. legislative control over charters of, 1135, 113G. life of, extended how, 1178. limitations, statute of : bars action against directors for wrongfully declar- ing dividend, when, 1192. bars action for tort of, when property conveyed, 1130. meetings ; annual, where held, 1179. elections at. See under this head. Directors, etc. first, how called, 1142. special, how called, llfHj. stockholders', enforced, how, 1188. mortgaged corporate property subject to execution, when, 1131. municipal. See Municipal Corporations, mutual associations may create stock, etc., 124.5. name of, to be displayed, 1242, negotiable instruments drawn, etc., to officer, payable to whom, 2191. effect of indorsement liy corporation, etc., 2191. office, principal; location changed, 1170. stock books must be at, 1170, llSd. officers; chosen how; duties, 1147-11.58. contribution between, \\-hen, 1150, 1157. embezzlement by, felony, 3325, fraud by ; such officers liable, 1155. malfeasances in oflice ; felonies, 3325. must turn over evidences of debts to executing officer, 1210. one corporation may own stock, etc., of another, 1173. "person" means corporation, when, 2831 (0). powers of, created under chapter ou, 1128, 1129, 1132-11.34, 117.3. president; chosen how, 1149. duties; term, etc., 1149. must be a director. 1140. public. See Municipal Corporations, quorum for election of directors, 1182. railroads, 2548-2G4S. See Railroads. can not be leased by corporation cliartered under general law. 1129. ready for business, when, 1140, receivers of, 1219-1232, See Receiver, record of charters of, kept by clerk, 915 (23). refusing to exhibit books and testify before state tax couuuission ; misde- meanor, 3792. reorganization of; certificate filed when and where. 1241. does not affect prior liens on property, when, 1241. nor persons not parties to action ; exception, 1241. new corporators meet and organize, 1230, 1240, 2505, on recei\er being discharged, 1221, 2.505. powers of new company, 1238, 1240. procedure in. 1238, 25(')5. trustee, made party to decree, binds cestui que tiiist, 1241, reports of; annual, 1152. failure of officers to make; liability, 1103. required; proving false; officer signing, liable, etc.. 1154. special may be callen dissolution, 1200-1207. COSTS ; admlnisti-ation of estates ; actions by or against representatives, 1277. action by creditor against representative after one year, 94. on claim denied, 115. by heir, devisee, etc.. for contribution, 58. advertisement for claims, 39. appeal ; bonds for costs on. 593-595, 597. not required in criminal actions, when, 3278, 3279. decision of court below, not affinned, who pays, 1279. plaintiff not recovering more in superior court than in justice's, 12.SJ arrest in civil .actions ; imdertakings providing for, 730. 7.38. assignee pa.vs, when assignment takes place pending action. 1278. attorney pays, when he fails to file complaint in time, 214. bail in civil action pays, when, 7.50. bastardy proays only two witnesuses to material fact, 1.300. party obtaining judgment, what allowed as, 1249. pauper plauitift" entitled to, 1205. plaintiff allowed ; when, 1204. pays, when action dismissed, etc., 406, 1266. pleadings amended upon jiarty asking paying, when, 1468. prisoner ; removal of, when captured, to proper county, who pays, 1287. removed to another county for safety, who pays, 1285. prosecutions for bribery or attempt to bribe state officers, etc., 1262. proi5ecutor in criminal actions, pays, when. 129.%. 1296. 1207 INDEX. COSTS— (■(riitiinicil: quo wni-nuito pi-cxeedings; who pays, 834, 1201. railroads: iietition as to municipal ordinance concornln.ir speed of (rains, gi'anteil, who pays, 1103. dismissed, who pays, 1-102. reallotmeut of homestead; costs in court's discretion. 12T."i. receivership; costs in. jiaid nut ot assets, 122(i. reference; fee of referee taxed ai;ainst wliom, 1268 (C). roads; application for estalilislniient. alteration, etc., of, T_'(S (,")). sale of land under execution; advertisement, 041. solicitor's duties as to. in criminal cases, 12.50. sijecial proceeding; costs in, adjusted by clerk, when, 125."), 1272. .state not liable, when, in civil actions by state, 12G1. state pays, when ; in criminal action.s, 1202. in civil action by and against sbite officers, 1260. by state, when, 12.")0. .iudgmeut rendered against, on appeal to V. S. courts. 1203. strays ; tidying uii, advertising and selling. 2833-283.5. siunni;iry judirnieMt for uncollected cost, on motion. 12.50. supplcnieulal proceedings, who jiays. 127.'1. supreme court ; e.\;e<-ution to collect, 1.540. witnesses before; fees ta.xed in bill, 1.547. sureties for; judgment and execution against. 1251. survey of land; by order of court, who pays. 1504. taxes added as, when, 2857. tender of judgment ; plaintiff refuses, who pays. 800. transcript of appeal to supreme court, 1280. undertaking for. See Bond for Cost, usuricius coiitnirt. person suing on, not entitlen reduced liy set-risoner ; captured in one county, removed to another ; cost, 1287. injured or lynched, county liable. 282."). removed to another county prison for safety, expenses provided. 1285. revenue of. See County Revenue. state convicts hired by ; stockades must be built, 1358. subscription by. to railroad construction, 2558. survey of townshii)s : ma]) of. filed where, 1318 (7). taxes of. See dinnty Revenue; Tax. witness for defendant; paid by comity, when, 1200. witness for state jiaid by. when. 12.80. workhouse of. See House of Cori-ection. COUNTY BOAKI) OF Kl )rc.\Tl().\ : See Volume II. compensation of, 2780. proceeds from sale of sti-ays, duty as to. 2835. treasurer of; compensation ; jiroviso. 2778. county treasurer acts as. ex officio, 1300. <'OUNTY BOARD OF ELECTIONS : See Volume II. compensation of, 2784. <'OUNTY BOARD OF PENSIONS : See Volume 11. compensation of, 2783. COUNTY CLAIMS: account against county ; itiMiii'/.ed .md verified before audited, 1.385. numbered as presented ; filed and recorded, 1380. as allowed, in a book. 1387. action on ; barred in two years, .300. ii'iii|ilaint must be verified. 1.384. demand necessary before bringing, 13.S4. bridges built by. 2702. county treasurer; not to pay claim unless allowed, eti'.. 1404. forbidden to speculate in, under penalty, etc.. 1.300. limitation ; statute of. bars action on. in two years, 300. order for building bridges, etc., valid, when, 2702. INDEX. COUNTY COMMISSIONERS: aiiuuiil stiitcment : niiiouiit paid lueinliors of board, 1326. iiiisdcmoanor lor board not publishing. 3592. receipts and disbursements. 1388. bastardy : warrant issued at instance of. 2.")2. bonds of county officers ; duly of conunissioners as to. 308-315, 2812-2815. annually examined by commissioners, 308. approval of, by commissioners, ."11. clerk to record yeas and nays on, 312. those voting yea, liable, when, 31.S, 2814. disapproval of; officer appeals, 1318 (23). given for the term, 308. Increase of, required, when, 308. record of board evideuco as to commissioner's lialiility on. 314. bridges : duties of as to, 2695-2710. See Bridges, chairman of ; absent, who presides. 1317. can administer oaths, 1318 (22), 2.302. chosen how and when, 1317. informs judge if clerli fails to give bond. 892. - treasurer's accounts ; duty of board to have examined. 1398 (5). courthouse built and maintained b.v, how, 133.5. See Courthouse, direct ai)plication of count.v revenue, 1370. electiim of; by justices of the peace in certain comities. 1312. by the jjeople in certain counties, 1311. examine itemized statements of clerk of superior court. 919. failing to discharge duty, guilty of misdemeanor. .'CillO. house of correction, maintained by, how, 1360-1375. See House of Correc- tion, jail protected by. 2S25. judge notifies, of vacancy in county office, when, 318. juiT ; commissioners' duties as to. 1.515, 19.57-19li.3. See Jury, justice's d(K-ket furnished by, 1416. justices have joint meetings with, in certain counties, 1313. keep record of county trust funds and sue for same. 1402. liable as surety on bond approveil, when, 313. for loss of taxes when taking insufficient bond, etc., 2814. license granted by. to auctioneers, 217. lien record books furnished by, 2057. meetings of; quorum, 1317. spe<-ial, called how, 1317. when and where, 1317. 1210 INDEX. COUNTY COMMISSIONERS— c-o/i- 13.59. employment of prisoners, 1318 (11). maintenance of the poor, 1318 (14). payment of debt, 1818 (2). pest-house. 1318 (15). work-house. 1360. punish for contempt, 942. purchase projierty for public buildings, 1318 (6). raise highway moneys, 1318 (9). regulate speed of autonioliiles ; exception. 1318 (.32). require from county officer report under oath. 1318 (21). sell or lease real property, 1318 (13), 1319, 2078, 2979. settle disputed county line, 1322. submit i>r(i|iositlon to contract debt to the people, 1818 (8). subscrilie to stock of railroad company. 2558-2562. powers exercised conjointly with justices, in certain counties, 1319. 1211 INDEX. COUNTY COMMISSIONERS— con?i")iMP(L- powers of county exeriiseil by, 1309. 1.31U. liracticiug law; (.■oiumissioners disqualified for, 210. practicing in state cmu'ts, uiisdeuieauor, 3041. prison bounds established by, l.".3'.i. prisoner captured abroad : expense of bringing into county allowed by, 1287 qualify when, 1310. records of evidenced, how, lOK;. register of deeds ex olHcio clerk to; compensation. i;!24, 20<>0. removal of county buildings; ja-ocednre. 1318 (28), 1310. special term of court ; asked for by, when, 1512. duty of commissioners to draw jur.v, 1513. gi-and jury not drawn : exception, 1515. notice of, published by, 1513. stiK-k law elections held by order of, 1072-1G77. strays ; duty to lix scale of costs for keeping, 28.34. subpoena to appear before; issued and served, how. 1318 (22). swearing falsely to statement re7, 938. See Constable, contempt of ; inniished how, 939-042. coutiunance of action in. when, 1472, 3213. prisoner allowed bail, when. 3213. conversion of personal jiropertj'. action for. 147(i. costs, 1249-1308. See Costs. ail.jn(lge<;l against jn'osecntor when, i;!(i7. bonds for. See Hond for Cost. defendant imprisoned for f.-iilure to pay. l.'id.s. itemized when party demands, 12.'57. justices' duty in entering .iudgment, 1257. plaintiff's bond for. on defendant's appeal, G06. who pa.vs, generally, 1307. See Costs: Criminal Procedure, criminal procedure. See Criminal Procedure: Preliminary Hearing, defendant, criminal action. See under this head. Accused, etc, defendant (civil) failing to appear: plaintiff's dutj". 1404. demurrer ; to evidence, 539, to jileading : grounds for, 1461. sustained; amendment allowed, 14(')2, depositions in, ]((4(1. See Dejiositions. dockets; tiled with clerk of court, when filled. 1117. furnished b.v county commissioners. 1410. verdict of .Inry to be recorded in, 1443. ejectment of tenant by; procedure. 211111-2010. See Landlord and Tenant, enforcement of liens. See liien. evidence in. See Evidence, execution; issued, and returnalilc when. 1481. i.ssued by clerk to sheriff, usual form. 1470. none against land, 14S'2. 2(«0. stay of; for what time, 1483. effect of, 1479. none; when judgment on judgment, ll.S:',. security given. 1484. inidertakiug for; given before clerk, 1485. copy of. fm-uislied appellee. 1488. given before justice. 1480. what to contain, 1487. felon outlawed by, 3183. fence, dividing, valued by, when. lOGfi. ' foreign coiijoration summoned before, 1448. form not material in, but substance, 1407. forms of actions, 1473. forms of iirocess, etc., used — appeal ; notice of, 1490 (30). ret\u-n to, 1490 (40). arrest and bail, affidavit of fraud, 1490 (17). order of an-est, 1490 (19). undertaking: of plaintitT. 1400 (18). of bail. 1490 (20). allowance of, 1490 (25). exceiition: notice of. 1490 (21). iustification, 1490 (24), notice of, 1400 (22). notice of other bail, 1490 (•23). attachment; affidavit to obtain. 1490 (,3-5). extHution in. 1490 (47). garnishment; order to third person to apiwar. 1 I!t0 (12). alt.ichment to enforce obedience to order, 149i! (13). invciUory of officer executing warrant, 1490 (9). 1210 IAD EX. COUUTS, 3X1STICKS'— continued : forms of process, etc.. used — continued. iittachuient — continued. notice of levy, where property not tangible, 149G (11). order directing sale of perishable property, 149G (10). publication, by plaintiff in, 1490 (10). undertalviiig. plaintiff's, upon, 149G (G). defendant's, 1490 (14). vacated: order, 1496 (15). warrant of, 1496 (7). Gthcer's return indorsed, 149G (8 I. constable's oath in charge of .iury. 1496 (3.3). contempt; record of conviction. 1496 (48). warrant of commitment, 1496 (49). demurrer to complaint, 1490 (35). to answer, 1490 (.S(>). .iiidgment upon, 149G (.'IT. 38). dismissal for want of jurisdiction, 149G (41). where land title in question. 149G (42). execution, 149G (40). juror: oath of. 1490 (32). summons against defaulting. 1490 (34). landlord ejectment of tenant. 2(111. subpcena : duces tecum. 149G (28). to testifv, 1496 (20, 27). Kinnmons, 144.1. 1496 (1, 2). lender of judgment, 1496 (43). acceptance of, 149G (44). judgment on, 1490 i4'i). venire, 1496 (31). witness: proceedings against defaulting. 1496 (30). oath of, 1406 (29). fugitive from justice; outlawed by, 3183. warrant for fugitive from another state. 3184. justice transmits proceedings to governor. 318.'j. habeas corpus ad tc^stilicandum issued by. when. ISHG. insolvent debtor disclKn-god l)y, when. 1918. judgment. .5(j2. Sec .Tndgment. action on, barred when, 392. against nonresident defendant entered when. 1451. appealed from : duty of clerk when appellate court decides. 1479. criminal action ; in accordance with verdict. 32.58. effect of, 1479. in another county : lien from when, 1479. must include itemized cost. 1257. docketed in superior court, 1479. lien of; on realty, from docketing, 1479, 1482. on personalty from levy only. 1482. not enforceable against land luitil docketed. 1482. on witness ticket, how rendered, 1299. removed to another county to enforce against personalty, 1480. stay of execution ; transcript furnislied party cast, 1479. subchapter .Tndgment appli< alile. ."02. suretyshiji nnist Ijc sliown in judgment, wlien. 2840. tender of; effect of nonacceptance, 1471. transcript of, furnished when. 1479. jurisdiction ; in civil cases — actions for tort, 1420. actions on contract. 1419, 1-12], 24;>5. 2-l."i3. 2407. apprentices leaving emjiloyer ; pro<'edure. 20."). ejectment of tenant or cropper. 2002. Rev. Vol. 1—73 1217 INDEX. COURTS, JUSTICES'— continued. ■ jurisdiction; in civil cases — continued. none; wbere land title in controversy, 1419, 1421, 1423. action dismissed ; new suit in superior court 1424. roads ; changing of. 2fif».3. township ; justices may try causes out of, 1425. in criminal cases — bastardy proceedings, 252. exclusive original, in what cases ; proviso, 1427. justice tries when satisfied of, 325G. malicious injury to real property, when, 3677. peace warrants. 31G5. jurors drawn, paid. etc. See under this head. Jury, etc. jury ; amount not used to compensate, refunded, 1432. box ; furnished by county commissioners, 1428. how divided up, 1429. kept by justice, 1429. names of jurors serving placed in second division, 1441. not serving, returned to first, 1437. prepared how, 1429, 1430. commissioners furnish list of jurors to justice, 1428. compensation of, 1432, 1442. composed of six : less number by consent, 1440. continuance after return of, deposit necessary, 1442. demand for. continues case, 1433. drawn from panel of twelve, how : challenged, 1433. either partj' may demand : deposit, 1432. nonresident of township need not serve on ; exception, 1439. panel drawn by justice, parties present. 1433. peremptory challenges limited to two, 14.3G. summoned by constable on order of justice. 1434. sworn and empanelled. 144.3. talesmen selected from bystanders, when, 1438. trial by. See Trial. Civil Action. waived if not demanded, 1431. verdict of, recorded on docket, 1443. 3258. justice ; election, duties, etc. See Justice of the Peace. may associate another in trial, when, 3154. liens; proceedings to enforce. 2020-2031. See Lien, limitations, statute of, applicable to, 359-379, 390-399, 1473, 3147. See Limitations, Statute of. mayors have concurrent jurisdiction with, when, 3059. new trial in, not allowed, 1489. See under this head. Rehearing, etc. notices in cases in. served how, 938. parties to actions, 400-418. 1173. See Party to Action or Proceeding. peace warrants, 310.5-3175. See Peace Warrant, plaintiff's cost bond on defendant's appeal, OOC. pleadings ; amendment nf. allowed when, 14(i8. defendant may answer that land title in question, 1422. effect of such answer, 1423. docketed, 14.5,8. generally. See Pleadings. may be amended on liberal terms, when, 1408. no i)art!cular form of, 1403. oral or written, 1458. rules of pleading, civil actions, 14.57-1403. substance of. not form, regarded, 1407. preliminary hearing, criminal cases, 3190-3200. See Preliminary Hearing, proceedings in, 1410, 1457-1478. See also. Criminal Procedure, process; issued where by justice. 142,5. 1447-1449. not nuashed for lack of form, 1407. 1218 INDEX. COURTS, JUSTICES'— cmtinued: l)rosecutoi', criminal action : who is and how determined, 1295. imprisoned for nonpayment of costs, 1297, 1307. real estate ; actions for damages to, in, 1470. rehearing granted absent party ; procedure, 1478. removal of action before another justice, 1455, 1456. rei)ort made to clerk of eases disposed of, 3261. search wan-ants ; issued by, when ; procedure, 3163. 3164. for deserting seamen, 3557, 3558. sentence. See Criminal Procedure. strays a]ipraised by, how, 2835. subpoena ; duces tecum issued for railroad officials, 1454. issued for witnesses to testify, 1452. to other counties, when deposit made, 1453. authenticated how, 1453. summons ; co-defendant in another countj', 1447-1449. contains what, 1445. on foreign corporations ; returnable where, 1448. service and return of, 1446. tender of judgment ; effect of nonacceptance, 1471. ti-ial by jury ; demanded, when, 1431. See under this head, .Tury, etc. waived if not demanded. 1431. variance immaterial unless adverse party misled, 1460. undertaking of bail ; civil actions. See Arrest and Bail, Civil Action. criminal actions. See Bail, Criminal Action, undertaking given to stay execution pending appeal, 14S5-14S8. venue. See ^'enue, Civil Action ; Venue, Criminal Action, verdict of jury in, 1443, 3258. warrant ; issued by, when, 3156, 3157. contains what, 3158. executed where, 3159. indorsed how, 3100. peace warrant issued, 3167. returnable before whom, 3162. who serves, 3160. widow's year's allowance allotted by, when, 3098. witnesses ; bound over with accused, 3202, 3203. See Witnesses, on appeal in criminal action, 1304. fees of, 2803. subpoenaed ; fined for uonattendance, 1452. from another county ; compensation, 1453. COURTS, SUPERIOR: appeal from, to supreme court, 587, 591. 592. detern.ined, certificate returned : procedure, 1.526. arguments to jury controlled by court, 216. attorneys at law licensed to practice in, 207, 209. debarred, when, 211, 212. civil actions tried at criminal terms by consent, when, 1.507. procedure in. See Civil Procedure. process and motions at criminal terms. 1507. terms of court ; criminal process not returnable to, 1508. no grand jui-y drawn for. 1508. .solicitors do not attend, 1508. clerk of. See Clerk, Superior Court, contempt of, 939-945. See Contempt. corporation dissolution ; judge may appoint receiver or trustee. 1203, 1204. criminal procedure in. See Criminal Procedure, equity eases (old) transferred to; jurisdiction over, 1.503. ex parte petition heard before judge diiring vacation, 1.501. grand jury ; not drawn for civil terms. 1,508. See Grand .Jury. not drawn for special terms imless governor orders, 1515. 1219 INDEX. COURTS, SUVVAilOn—conthiiKi!: judge of; oath. etc. See Judge, Superior Court. issues wiunuits for apprebeusion of crimiuals, 3150. may e.xihaufie courts with another judge, 1511. not attending ; procedure. 1510. rotates in holding courts, 1509. jurisdiction; civil and criminal generally. 1500. appeals from clerk, justice, mayor, etc., I.'i02. from c-orporatiou commission, 1074. county commissioners. 2(!8(). in vacation, 1501. over corporate elections. 1188, 1180. restoration of citizenship. 2G7.5, 2(j7(i. jury in. See Jiiry. minute docket of, kept by clerk, 915 (0). minutes of, of preceding day read each morning. 1510. order of business of. .533. parties imiting in proceedings, case can be heard in vacation, 1.501. pleadings in. See Pleadings, practice ill. See Civil Procedure; Criniiiial Procedure. rules of. prescribed by supreme court. 1541. prisoners bound over to regular term must attend special. 1517. Quakers may wear hats in presence of, 1528. rotation of judges in holding, 1509. rules of practice in, prescribed by supreme court, 1541. solicitor discharged for drunkenness ; who acts, 1499. special terms; how ordered b.v governor, 1512. jurisdiction and jxiwers same as regular term. 151 fi. no grand jury for, unless governor orders. 1515. notice of. 1513. subpoenas made returnable to. 1517, 1518. what judges may bold. 1511. supreme court's decision in criminal apjieals certified to ; procedure, 1542. in civil appeals certified ; procedure, 152(1. term expiring during certain trials, court continues, etc., until case dis- posed of, 3206. terms of ; presided over by what judges. 1500. when held in different coimties, 1.5(iO. witnesses subpcenaed to regular, must attend special term of court. 1517. COURT, SUPREME: amendments allowed to process and pleadings, on what terms, 1.545. appeal from superior court to, authorized, 1530, 1.5-10. certificate of determination of. sent superior court. 1.520. attorney general not attending, substitute appointed by. 1551. attorneys at law licensed by, 207, 208. claims against state: decision by, nierel.v rcciiiiunondatdry, 1537. reported to general assembly, 1.537. issues arising transfeiTed to superior court. 1.538. prosecuted how, 1.537, 1538. clerk of ; selection, duties, etc. See Clerk. Sujirenie Court. may be refpiired to record certain rc( rir0. See Fraudulent Convey;) nces. liens of. See Lien, sin-ety's notice to, to collect, 2S46. ci'cilitdr negligent, surety discharged, 2S47. stockliiililcrs of corporation liable to, for unpaid snhscriptiou, 1102. CRIMES AND PUNISHMENTS: abandomnont : family b.v husband, 33.55. husl>;ind living with wife neglecting to support family, 33.57. presumptive evidence of, when husband neglects to work, 3356. abatement of nuisance ordered, person refusing, 3440. abduction ; children from parent or school, 3358. children by parent who has forfeited his or her rights, 3373. conspiracy to abduct child from parent, proviso, 3359. kidnapping any person, 36.34. married woman, virtuous since marriage, by male person, 33(i0. woman's testimony alone not sufficient, 3300. abetting: bigamy, 3301. concealing birth of child, 36'23. concealing of prisoner when writ of habeas corpus issued, .'5583. damaging of another's water-supply, .3457. (listurliance of elections or officers thereof, .3385. oiMi)07.zlement liy bank olficers, 332.5. railroad officers, 3404. state officers of state property. 3407. 1 •_>21 INDEX. CRIMES AND PUNISHMENTS— COTi3. challenge ; sending or accepting, to fight duel, 3628. chasing deer with dogs in certain counties, 3460. child : abduction of, 3358, 3359. by parent after rights forfeited, 3373. concealing birth of, 3623. exposing, to fire by shutting up in house, 3795. minor. See under this head, Jliiior, etc. child labor ; children under twelve, manufacturer employing, 3362. hours of work in factories, regulated, 3363. parent misstating age of child to manufacturer, 3304. churches ; biu-ning of, 3338. person obstructing way to, or to spring used by, 3770. cigarettes : aiding minor to obtain, 3805. selling or giving away, to minors, 3804. city tax collector ; failing to make settlement, 3009. clams ; taking, in close season, 2423. clerk, superior court, acting without giving bond, 3565. disposing of laws and coiu't reports, 3.'i08. embezzling property of office, 3408. knowingly committing nonresident Iniiatic to hosjutal. :'.."i91. malpractice in office, 894. practicing law in state courts, 3641. refusing copy of election returns, etc., 3398. registering physician and surgeon illegally, 3647. swearing falsely to statement required by law, 3605. clerk, supreme court, practicing law in state courts, 3641. coach-house, stable, etc., burning of, 3338. cocaine: selling, except on prescription, 38(i6. cock-fighting, .3301. commercial fertilizers ; person violating regulations concerning, 3821. common carrier: discriminating against connecting lines. 3751. discriminating between shippers, etc., 3749. failing to inform board of agriculture concerning fertilizers, 3819. railroads. See imder this head. Railroads, etc. concealed weajions : carrying, off premises ; e.xceptions, 3708. concealing birth of child, 302.3. concealing jirisoncr when writ of habeas corpus issues, .3.583. concentrated feodini; stuff: obstructing inspection of. 3827. sold witlKnit ccjniiiliance with law, 3807. condemned building: owner allowing, to stand, etc., .3802. removing notice from, 3799. conspiracy: to undervalue or overvalue homestead, .3585. 3580. to abduct child. 3359. cml)ezzle railroad company's property. .3404. veiuie of action, 3404. forge deeds and other papers, 3424. I)roniote rebellion, .3438. constalile: allowing prisoner to escajie. .3.577. failing to make settlements as reriuired. .3609. failing to return process or making false return, 3004. swearing falsely to statement required by law, 3605. contested elei-tidu : defeated iiarty failing to turn over books, etc.. .3001. 1224 INDEX. C1{IMES AND PUNISHMENTS— conffHMCf/; contagious diseases ; animals dying with, failing to bury, etc., 3298. animal having glanders, etc., owner refusing to kill, 329C. board of health failing to notify school authorities, 3-UO. bringing suspected vessel to harbor without permission, 3451. hog with cholera, owner failing to pen separate, 3297. householder failing to give notice of, 3443. live stock with; transporting, across quarantine line, 3294. physician failing to give notice of, 3448. selling or offering for sale animal with, 3295. traveler refusing to obey quarantine regulations, 3454. contempt of court. See Contempt. contracting for future delivery, not intending delivery, 3823, 3824. contractor failing to furnish owner indebtedness for labor, etc., 3663. conveyances or other papers of value, forged, 3424. conspiracy to forge, 3424. convict ; conveying message, weapon, etc., to aid escape, 3662. conveying or selling to, article forbidden by rules, 3662. officer maltreating, 3659. transported to another county, escaping from officer, 3658. working female prisoner on cliaing.-ing. 3.in(>. coroner; refusing inquest over one killed in mining accident, 3797. swearing falsely to statement required. .'jOdo. corijorations ; agent refusing certain demands by officer with execu- tion, 3G00. officers and agents making false entries in books, 3325. embezzling funds of, 3325, 340G. failing to turn over moneys to pay tax, 3786. fraudulently issuing certificate of stock, 3421. corporation commission ; witness refusing to appear and testify, 3691. cotton; buying less than bale seed cotton. \Aithout keeping record, 3812. buying or selling in less than bale at night, 3813. deducting from weight of ; exceptions. .3816. cotton-seed meal ' selling, with less ammonia than law prescribes, 3814. selling, \\ithout being inspected and branded, 3814. cotton-weigher failing to take and file oath before acting, 3815. counterfeiting ; bank-notes, 3419. coin of gold or silver. 3422. selling goods branded with brand of another, 3850. tools ; person possessing, for the purpose of, 3423. county claims ; speculating in. 3575. county conunissioners ; approving bond, knowing insufficient. 3573. failure of, to heat jail. 3574. perform dutj' required, 3590, 3592. ju-acticing law in state courts, 3641. swearing falsely to statement required by law, 3605. county finance committee : failing to obey summons of, 1391. county oflicers embezzling securities, etc., 3406. 3408. county treasurer ; failing to make report of school fund, 3839. swearing falsel.v to statement required. 3605. court-martial ; person swearing falsely before, 3612. court pa]>ers ; fraudulently taking or injuring, 3508. creditor falsely swearing to account against assignor, 3617. crop pests ; preventing inspection of premises for exterminating. 3713. crops ; landlord seizing, when nothing due him. 3664. on land surrounded by common fence ; person removing fence, 3412. tenant removing, before satisfying claims of landlord. .3665. imgathered, burning of, .3.339. cruelty to animals: any one instigating. 3.300. cock-fighting, or baiting any bull, bear, dog, etc., 3.301. conveying animal in cruel manner; officer takes conveyance, 3302. cruelty defined, .3209. 1225 INDEX. CRIMES AND PUNlSflJIENTS— <:OM«/)i«f(/.- custodian of public laws, etc., disposiug of snuie, 3598. daius ; obstructing passage of fish with, 24Ul-24l>i, 2473, 2474, 2479. dead bodies; distributiug wrongly among medical schools, 3567. deadly weapons ; sale of. to minors, 3832. assault with, 3(iJ0, 3ii21. carrying, concealed, 37C18. deaf, dumb and blind schools ; person violating ordinances of, 3095. dealing in futures, 3823, 3824. deer; chasing, with dogs in certain counties, 3460. killing, out of season, ISSl, 340(1. delinquent taxpayers ; sheriff failing to publish list of, 3587. dentists falsely claiming to have license to practice, 3043. practicing without license, 3042. destroying nests or eggs of wild birds ; exceptions, 3404. detectives ; body of over three, going armed, 370.3. directors or trustees not to be contractors, when, 3572. dispensary: buying from, for minor, 3523. violating law concerning, 3520, 3525, 3531. See Dispensaries, disposing of mortgaged jiroperty to defraud creditor, 3435. evidence proving guilt. 3435. disturbing : elections and officers thereof ; abetting the, 3385. political and other lawful meetings, 3704. religious congregations by certain exhibitions, 3705. disorderly conduct, 3700. schools, temperance meetings, etc., 3838. docks of Wilmington : encumbering, with logs, etc., ;i.')47. repairing boats in, 3554. dogs; female; owner allowing, to rim at large, 3.303. mad, biting any one; owner failing to kill. 3305. sheep-killing ; owner refusing to kill on notice, 3.304. any one can kill, if found at large, 3.304. stealing, listed for taxation. 3."i01. dog tongue, etc., removing, from another's land in certain counties, 3683. drainage; obstructing drains on farms by felling trees, 3382. obstructing drains used in mining operations. 3380. obstructing streams in drainage district. 3378. refusing to comply with requirements for drainage, 3377. refusing to act as commissioner for drainage, etc.. 3379. servient owner obstructing canal or ditch, 337,5, 3.370. driving over bridge at speed faster than walk. 3780. druggists ; dispensing drugs without license, 3050. I)liarmacy. licentiate in. See under this head. Pharmaceutists. permitting unregistered cleric to coniiionnd, .'{(MO. retailing jioison without complying with law, 3049. drunkenness, public. 3733. duelling; person killing another in a duel, .3029. aiders and accessories, 3029. person sending, accepting or fighting a duel. 3028. dwelling-liouse; burning, etc See .Arson; Biu-nings. dynamite sold without a special license. .381.7. dynamiting fish, 24(!0. elections ; abetting registration of illegal voter, 3.395. assaulting ofiicor of, .3385. betting on result of, held in this state, 3384. bribing or at1em|iting lo bribe voter at. .3,380. discharging or JMlimidating emiiloyoe on account of vote, 3387. disturbing. 3385. felon not restored to citizenship voting at. 3388. fraudulently voting at. 3394. impersonating another voter, 3.395. liquor treating at, 3.389. 1220 INDEX. CRIMES AND PUNISHMENTS— con^iowed; elections — conliinied. oath coi-ruptly taken by voter, 3390. officer of ; making false entry, 3394. acting after removal, 3399. failing to make return of elections, 3396. making fal.se return, 3397. presenting at, false exemption from poll tax, 3401. registering at, in more than one election ward, 3395. register of deeds and clerk refusing copy of returns, 3398. returning officer failing to perform duty, 3391. returns of ; officer failing to make, 339C. making, falsely, 3397. sheriff failing to furnish clerk list paying poll. 3400. not furnishing voter with receipt, 3402. electric light plant; person tampering with, 3G6G. electric light wires ; felling trees so they fall upon, 3849. elopement; male person with virtuous married woman, 33G0. woman's testimony alone not sufficient, 33C0. embalming without license, 3G44. embezzlement ; administrator, etc., misapplying funds, etc., 3406. bank officers misapplying bank funds, etc., 3325. benevolent society ; treasurer of. misapplying funds, 3409. conspiracy with railroad officers to embezzle, 3404. venue of action. 3404. corporation officers misapplying corporate property, 3325. county officers misapplying funds, etc., of county, 3408. defined, 340G. guardian, misapplying funds, etc., 3406. insurance agent misapplying company's fimds, etc., 3489. mimicipal officers misapplying municipal funds, etc., 3408. officer failing to account for fines, etc., 3.594. partner, surviving, misapplying partnership funds, etc., 3405. railroad officer misapplying railroad funds, etc., 3403. venue of action, 3403. sheriff misapplying taxes, 3410. state institutions ; officers of, misapplying funds, 3408. state officers misapplying securities, etc., 3407. tax collector misappl.ying taxes. 3410. trustee, or person in position of, misapplying funds, .3406. .3410. employee ; enticing, from employer, 3365. hiring another's, 33G7. encumbering docks of 'Wilmington, 3547. engines, boilers, etc., person tampering with, 3667. enticing minor out of state, without parent's consent. .36.30. escape ; convicts hired to another county escaping from officer, 3658. convicts, state : officer allowing to e.scape, 3G.59. officer allowing prisoner to escape. .3577. prisoners breaking prison. 3657. 3658. estrays ; person failing to comply with law of, 3306. exhibiting stud-horse or .lack within half mile religious meeting, 3705. explosives; firing off bomb, dynamite, etc.: exceptions. 3794. factory; burning of any building used as. 3.338. fairs ; injuring exhibits at, or being shipped to and from, 3668. person entering grounds without permission, 3669. false entry : election officer making. 3394. false lights displayed on seashore for deceptive purposes. 3430. falsely labeling packages of game, .3470. false pretense; generally. See False Pretense. advances, obtained; by written agreement to pay out of fund, 34.34. by promise to work and failing, 3431. INDEX. CRIMES AND PUNISHMENTS— fO»/i(iMC(/; false pretense — continued. lorporation, partnersbip, etc.. making, to obtain credit, 3432. deliuea, 3432. insurance agent: making, to defraud company, 3487. obtaining premiums by false representation, 348G. marriage license obtained by, 3371. pedigree of breeding animal ; falsely representing, 3307. registration of donie.stic animals procured by, 3308. signature of person obtained by, 3433. fal.'ie statement; agent, building and loan, making, to association, 3329. corporations, partnersbips or individuals making, 3326. insurance companies making, 3492. 3493. false toll disbes kept by miller, 3G79. fast driving over bridges, 3780. feeding stuffs. 8ee under tliis head. Food, etc. felling trees in drains and failing to clean out, 3382. negligently so they fall on telephone wires, 3849. felonies defined ; punishment for where not prescribed, 3291, 3292. female prisoner ; working, on street or road, 3590. fences ; barbed-wire ; person putting up without plank on top, 37()9. cutting wire, belonging to another. 3413. injury to, in any way, 31173. removal of common, without permission of all tending crops, 3412. from around graves, 3681. tearing down around stock law territory, 3411. tenant injuring or removing, 3086. fenders for street cars ; company failing to provide, 3801. fertilizers ; railroads failing to inform board of agriculture concern- ing, 3819. removal or sale of, after being condemned. 3820. sale of, that contains deleterious substance, 3818. without tags, 3822. fines ; failure of ofiicer required to file statement of, 3579. firearms; person furnishing to lunatics or convicts, .3517. conveying, to prisoners to effect escape. 3()02. selling, to minors. .3832. fire department, chief of; failure to apjwint. .■!(l(i7. limits: failure to establish. 3008. regulations. See under this head, JIunicipal Corporations, fires. See under this bead. Burnings, fish ; obstructing passage of. 2457. 2461-24(M. 2473, 2474, 2476, 2479. preserved, etc., sold as fresh, .■i-H4. fish offal, throwing, in navigable streams, 2444. fisheries wilfully destroyed or injured, .3414, 3415. fishing: disobeving regulations as to fishing in — Albemarle sound, 24.39. 2440. 2446. 2448. 2451. Bear inlet, 2450. Black river, 2471. Brown inlet, 2450. Brunswick countv. 2472, 2481. Capo Fear river, 2468, 2483. 3416. Carteret county, 2434-2437, Cashie river, 24.30. Cataloochee ci'oek, 2480. Croatan marshes. 2424. Croatan sound. 2-WS. Cumberland county, 2472. Currituck sound. 24.30. 2-i;!1, 2-I4S. Rastmost river, 2439. FoMng Pan creek. 24-M. 2)17. 2440. Hatteras inlet. 2440, 24.50. 1228 IJS^DEX. CRIMES AND PUNISHMENTS — continued: fishing, etc., iu — cmii'mued. Hiawnssee river, 2458, 2461. Linville river, etc., 2482. Little river, 2443. Lumber river, 2475. Masonboro and Myrtle Grove sounds, 2425. 242C. Middle river, 2439. Mingo creek, 2471. Nantaliala river, 2477. Neuse river, 2453, 2454, 2456. 2474. New Bern, 2456. New Hanover county, waters of, 2468, 2470, 2472. New inlet, 2446, 2450. Northeast Cape Fear, 2469. Notla river, 2458. Ocracoke inlet, 2446. 2450. Oregon inlet, 2446, 2450. Pamlico river, 2427. Pamlico sound. 2428. 2429, 2433. 2440, 2448, 2452. Pasquotank river, 2442. Pender count.v, waters of, 2470. Perquimans river, 2441, 2448. Roanoke river. 2439. Sampson county. 2472. Scuppernong river, 2445. South Fork river, 2473. Tar river, 2427, 2428. Trent river, 2454, 2455, 2456. Valley river, 2458. for menhadens and fatbaclvs wrongfully, 2438. using menhadens, etc., unlawfully caught, 2438. killing fish with dynamite, etc.. 2466. nonresident fishing with seine without license. 24,"i9, 2467. on Sunday with dragnet or seine, 3841. poisoning streams to kill fish, 3417. resident aiding nonresident to evade law, 24.i9. robbing flsh-nets, 2478. seining for mountain trout, 3418. setting nets across streams. 24.57. vessels in.iuring fish-nets, 2465. food : adulterating nr misbranding, .3444. Sep Food. concentrated feeding stuff : sale unlawfully. .3807. 3827. interfering with inspection of, 3445, 3447. refusing to furnish sample for analysis, 3445. 3447. refusing to sell sample to inspector, 34.")2. sales of meats, oysters, etc. See under tliis head. JIarket. etc. forcible entry and detainer. 3670. forgery, generally, 3419-3427. See Forgery, fornication and adultery, 3350. frauds perpetrated, generally. 3428-3436. See False Pretense ; Frauds, futures, dealing in, .3823, 3824, 382.5. gambling : allowing where liquor sold, 3716. betting on prize fight, 3707. on election. 3384. conducting faro banks. 3717. dealing in futures, 3823, 3824. defined, 371.5. lotteries. See Lotteries, playing at gaming tables, 3718. tavern-keeper allowing. 3716. 1229 INDEX. CRIMES AND PUNISHMENTS— co>!f«««C(f.- gaming tables ; allowiug, on one's preuiises. 3719. destroyed bj' certain officers, 3720, 3721. keeping. 3718. opposing destruction of, 3723. playing at, 3718.- gas plant ; person maliciously injuring, 3G71. person tampering witli pipes, etc., 30(J0. gates; person leitviug open or in.iuring, across public road, 3411, 3781. general assembly ; member of, accepting bribe, 3570. offering bribe to member, SSGO, 3570. person swearing falsely before committee of, 3011. witness failing to attend before committee, 3092. gift enterprise, conducting, 3720. gin-bouse; burning of, wilfully and maliciously, 3341. ginseng; digging, between April and September, 3714. taking, from land of anotber. where fenced, 3502. glanders ; stock having, owner refusing to kill, 3290. grass ; burning of grass or sedge standing in field, 3339. graves, disturbing, 3072. graveyards ; defacing or removing monuments in, 3080. removing enclosure to, 3081. growing crops ; stealing, from the field, 3503. habeas cor]ius ; concealing party named in writ, 358.". disobeying writ, 3597. making false return to writ, 3582. recommitting one who has been set at liberty, 3581. harboring : servant who has unlawfully left master, 33(5.5. seamen, 3550. harbor-masters of Wilmington ; interfering with, 3552. health, 3440-3454. See Public Health, hiring servant under contract with another, .3374. hog cholera ; failing to pen hog sick with, 3297. homestead; failure of officer to allot, before execution sale. .3584. undervalued or overvalued by eonspirac.v, 3.585. homicide, 3031-3033. See JIurder and Manslaughter, horse stealing; indictment, 3505. temporary use of horse. 3509. hours of labor of person under 18 regulated, 3303. householder failing to give notice of contagious disease, 3443. houses ; person injuring, in any way, 3073. house ; taking possession of another's, and refusing to vacate, 3085. hunting ; on land of another without permission. 3480. on Sunday with dog, or found off premises with gun, 3842. violating regulations as to. 34.59-3481. See Hunting, husband abandoning wife and children, 3.355. Impounder embezzling funds from sale of stock, 3312. Incest, 3351. 33.52. Infants. See under this head. Child ; Minors. Injuring — buildings, etc., 3073, .3080. buoys and beacons, 3.540. canals. 37.54, 37.55. electric and steam appliances, 300G. exhibits of fairs, 3008. fences, 3073. gas plant, .3071. landmarks, .3074. mill-dams, etc., .3078. monuments, tombstones, etc., 3080. personal property. 3070. real property, 3077. 1230 INDEX. CRIMES AND PVmSUMENTS— continued: injuring — continned. stock in the range, 3314. tenant injuring Louse, trees, etc., 3C86. timber, 3087. innocent woman ; cliarging, with ineontinency, 3640. insane person ; knowingly committing nonresident, to hospital, 3591. person assisting, to escape from hospital, 3004. insolvent debtor taking false oath of insolvency, 3614. inspector ; acting as, falsely, 3580. of buildings, failing to perform dtity, 3010. insurance agent ; embezzling funds of company, 3489. failing to exhibit license, 3485. making false statements to defraud company, 3487. obtaining premiums by false representation, 3486. procuring insurance in unauthorized foreign company, etc., 3483. signing certain blank policies, etc., 3488. unlawfully restricting compensation of, 3401. insurance company or agent violating law, 33i;s, .3482-3407. See Insurance, insurrection ; conspiracy to overthrow government, 3438. intimidating, or attemiiting to intimidate, witnesses or jurors, 3696. voter at election, or after, 3387. jail; county commissioners failing to heat, 3574. jailer ; confining prisoner in improper apartments, 3660. injuring prisoner, 3001. refvising to obe.v commitment of prisoner from another county, 3603. judgments, or securities ; person forging, 3425. jurors ; accepting bribe, 3097. intimidating or deterring from attending court, 3606. justice of the peace ; acting after removal from township, 3589. before qualifying, 3589. failing to return dockets, etc., to clerk, 3578. knowingly committing nonresident lunatic to hospital, 3591. marrying white person and negro person, 3370. practicing law in state courts, 3641. refusing itemized bill of costs when demanded, 3588. swearing falsely to statement required, 3605. kidnapping a person, 3034. killing game out of season, 3460. See Close Season, land ; forcible entry and detainer, 3670. malicious injury to. 3077. trespass on, 3320, 3321, 3480, 3688, 3741, 3745, 3746, 3685. landlord ; seizing tenant's crop when nothing due, 3664. violating contract with intent, in certain counties, 3366, 3367. landmarks; wilfully altering or removing, 3674. larceny, 3408-3511. See Larceny. branded timber ; person taking away, secreting, etc., 3853. destroying timber marks with felonious intent, 3855. fish from fish-nets, 2478. ginseng; taking from land of another where fenced, 3502. oysters ; from private beds, 2401. legal notices ; person defacing or tearing down, 3710. lessee of land surrendering to other than landlord, 3682. letters; wrongfully opening, or publishing contents, 3728. lewd women committing lewdness with or in pre.sence of student, 3353. prosecution mUst be within six months, S353. student may give testimony, 3353. libel, 36.35. license tax; person failing to pay, 3787. lien ; secreting property to prevent enforcement of, 3436. lights, false; displaying, on seashore, 3430. IXDEX. CRIMES AND TUNISHMENTS— (o/i^/ducrf; liquors; furuisliiug, to lunatic or couvicts, ;)517. dispensaries. See Disijeusaries. gambliug allowed in bouses where sold, 3711!. .Ltiviiii;, away at elections, XiX'J. iiiaiuifaolure of, 3012-3535. See Liquors. ufliters tailing to execute law as to, 3526. pliysiciau abetting sale of. unlawfully, 3519. public drunkenness in certain counties, 3733. sale of, 3512-3535. See Liquors, live stock ; driven in stock law territory ; crops injured. 3321. action barred, when, 3321. driving another's, out of range, 3314. indictment for, need not name owner, 3314. dying of contagious disease ; owner failing to bury, etc., 3298. glanders or farcy ; stock diseased with ; not killing, 3296. injury to : in enclosure without lawful fence, 3313. running in the range, 3314. killing in range and not showing ears, etc., 3315. misniarking. for fraudulent purposes, 3317. owner failing to pen hog with cholera, after notice, 3297. pedigree of breeding animal ; false registration of, 3307. poisoning, by leaving shrubs exposed. 3318. registration of, procured fraudulently, 3.308. running at large. See Stock Law. selling, knowing to have contagious diseases, 3295. shipping, on Scuppernong river, illegally, 3G75. stallion or stone mule ; allowing, to run at large, 3323. stock law ; violating. See Stock Law. strays ; owner not complying with law of, 3300. transported across quarantine line, 3294. lotteries ; aiding, in any way, 3725, 3726. advertising, 3725. buying or selling lottery tickets or stock in, 3727. conducting, in any way. 3726. raffling off houses or other property, 3725. lumberman failing to remove obstructions in Albemarle waters, 3551. lynching; person entering jail, or consjiiring, to kill prisoner, .3698. witness failing to testify as to, 3099. machinery, person tampering with, 3667. maiming; disabling ancillier's body without malice aforethought, 31)20. with malice aforetliought, 3627, 3636. malicious injury ; to gas plant, etc., 3071. to personal property, 3076. real property, 3677. malpractice of justice of the peace, penalt.v, 1414. manslaughter. 36.32, .30.33. See Murder and Manslaughter, market ; diseased animal, meat of, sold, 3442. fish, preserved, sold as fresh, .3444. oysters, preserved, sold as fresh, 3444. sausage, adulterated, sold, 3444. marl beds ; failure to enclose, 3790. marriage ceremony; minister performing, without license, 3.372. marriage license secured b.v false pretense. 3371. marriage ; person marrying female under fourteen, 3308. white person marrying negro or one of negro descent. .3309. married woman; abduction of virtuous, by male person. .3300. woman's testimony alone not sullicient. 3360. carnal knowledge of, by impersonating husband, 3624. attempt. 3625. mayhem. 3020, 3027, 3636. meal; selling, except in certain packages, etc., 3810. 1232 INDEX. CRIMES AND PUNISHMENTS— co)?*mttC(/; medicine ; practicing, without license, 3045. practicing without registering, 3G4G. meridian monument ; person injuring, etc., 3743. person neglecting duties with reference to, 3743. mill-dam ; injury to, or obstruction to race, 3678. obstructing race, etc., after proceedings establishing, 3381. owner failing to keep gate and slope therein, 3383. preventing fish from ascending river, etc., 24G1-2464, 2473, 2474, 2479. mills ; burning of, 3338. owner keeping false toll dishes, 3679. failing to keep up certain bridges, 3772. mines ; person violating any regulations regarding, 3797. mining; obstructing drains used in. 3.380. minister ; failing to return marriage license duly certified. 3372. marrying white jierson and negro, 3370. performing marriage ceremony without license, 3372. minks ; trapping, or selling hide by nonresident, 3467. minor : aiding to obtain cigarette.s, 380.5. allowing in liquor shop, etc., parents objecting, 3729. contractor hiring, to assist in changing raw material to manufactured by piece or pound with intent to cheat, 3428a. enticing out of state, without parent's consent, 3030. purchasing liquor from dispensary for, 3523. selling deadly weapon of any kind to, 3832. liquor to, 3.524. or giving cigarettes to, 3804. misbranding food stuff, 3444. miscegenation ; justice marrying white and negro person, 3370. minister marrying white and negro person, 3370. register issuing license to white and negro person, 3370. white person marrying negro, or one of negro descent, 3369. misdemeanor defined, 3291. punishment where statute does not prescribe. 3293. mismarking animals for fraudulent purposes, 3317. monuments ; defacing or removing. 3680, 3742. morphine ; selling, except on prescription, 3806. mortgaged pro]ierty ; disposing of, to defraud creditor, 3436. abetting the disposition of, to defraud, etc., 3435. evidence making prima facie case, 3435. mother concealing birth of child, 3023. mountain trout; catching, for sale. In Cataloochee creek, 2480. seining for, or catching during certain months, 3418. municipal buildings; burning of, wilfully and maliciously, 3337. nuuiieipal corporations; buildings of, burning, .3.337. Iiuilfling )-egulations of. See Buildings in Towns. condemned buildings ; owner violating regulations, 3798, 3799, .3802. fire department chief; failing to appoint, 3007. fire limits: failing to establish, 3608. incendiary fires: regulations concerning violated, .3342. inspector of buildings failing to perform duty, 3610. officers failing to account for taxes, 3609. ordinances of ; person violating. 3702. police failing to execute gambling laws. 3716. failing to destroy gaming tables, 3720. removing notice condemning building, .3799. tax collector failing to account, 3609. water supply ; officers failing to inspect. 3861. murder. See Murder and Manslaughter, muskrats ; trapping, or selling hide liy nonresident. 3467. names signed to certain petitions without consent, 3426. national guard; violation of regulations, 3538-3542. See National Guard. Rev. Vol. 1—74 1233 INDEX. OI{IMES AND PUNISHMENTS— con/i»n(e(f; nature ; crime against, 3349. navigation ; displaying false lights for deceptive purposes, 3430. violation of regulations concerning, 3543-3504. See Navigation, nontransferable scriji ; i)erson issuing, to laborers, 3730. nuisance, abatement of, ordered ; refusal, 3440. oatbbound secret society for political purposes ; joining, 3430. oath ; person corruptly taking, at election, 3390. See Perjury. taking, falsely to obtain registration ou permanent roll, .3392. obscene books and pictures ; exhibiting, selling, etc.. .3731. obstructing — commissioner of wrecks, 3564. dams, race, etc., 3381, 3C7S. free passage of fish, 24C1-24G4, 2473, 2474, 2479. inspection of food stuffs, 3827, 3447, 3452. jiremises for crop pests, 3713. navigation, 2443, 3553, 3559, 3561. railroads, etc. ; consequences, 3754, 3755. roads, etc., 3784. watercourses. 3375. 3370, 3380, 3382, .33S2a, 3755. way to church, etc., or to spring, 3770. officer, police ; refusing to assist, 3701. officers, public. See under this head. Public officer, etc. oleomargarine ; selling, without complying with regulations, 3828. opium ; selling, except on prescription, 3806. otters : trapping or selling hide by nonresident, 3407. oysters — « boat used in catching; displaying false number, 2388. employing interested nonresident on. 2408. failing to show license, 2389. buying or selling, out of close season, provisos, 2383, 2426. canning, etc., without license, 2395. catching on Sunday or at night, 23S4. using unlicensed boat, 2387. without license, 2386. close season violated, 2383, 2426. dealing in, without license, 2395. dredging in illegal manner, 2385. evidence of, 2397. in prohibited waters, 2391, 2413. injuring private beds, 2402. larceny of, on private beds, 2401. license to take; making false statement to get. 2390. lime ; eatchiqg oysters for, 2400. loading, to carry out of state; exceptions, 2,303. measures ; using illegal, in buying and selling, 2390, 2417. person licensed to take, employing forbidden laborer, 2408. ])reserved, sold as fresh, .3444. record of dealers; failing to keep, 2390. selling, not culled, 2392. trespassing on private beds, 2402. unloading, on Sunday or at night. 2.304. parent misstating age of child to manufacturer, 3364. partner; surviving, omliozzling iirojierty of partnership, .340."(. peddling goods or handling without license, .3789. pedigree; false representation of. .3.307. pension claims; person speculating in, 37.32. pensions; officers failing to discharge duties as to, 3.593. perjury; clerk of court swearing falsely to statements. .300."). defined, and piuiislniKMit provided. 3i;n-.3(il7. See Perjury. insurance officer swearing false statement to be true. 3403. person corruptly taking oath at election, 3390. physician making false death certilicate to insurance company, 34.S7 12.34 INDEX. CRIMES AND PUNISHMENTS— COT!ifnMe«Z.- permanent registration ; officer failing to perform duty as to, 3393. person unqualified registering on, 3392. swearing falsely to be placed on, 3392. personal property ; malicious injury to, 3676. pharmaceutist ; adulterating drugs, 3648. compounding prescriptions without license, 3tj49. doing business under expired license, 3653. failing to exhibit license, 3G51. falsely pretending to be licensed, 3652. retailing drugs without license, 3650. poisons illegally. 3649, 36.55, 3829. securing license by false pretense, 3654. selling opium, morphine, etc., except on prescription, 3806. physician ; abetting sale of liquor unlawfully, 3519. failing to give notice of contagious disease, 3448. making false certificate to defraud insurance company, 3487. practicing without license, 3645. without registering, 3646. registered Illegally by clerk, 3647. pilot : failing to notify commissioners of destruction of beacou, 3560. pointing gun, etc., at another whether loaded or unloaded, 3622. poisoning : stock by leaving certain shrubs exposed, 3318. streams, to kill fish, 3417. poisons ; selling illegally, 3649, 3655, 3829. poll tax ; sheriff failing to furnish list paying, 3400. presenting false exemption from, to election officers, 3401. poll tax receipt; sheriff failing to give, or falsely dating, 3402. pooling freights or allowing or accepting rebates, 3762. practicing law; certain officers, in state courts. 3641. prescription ; pharmaceutist compounding without license, 3649. prisoner ; breaking prison, 3657. conveying to, articles forbidden, 3662. from counties other thaji county of conviction, escaping from officer having in charge, 3658. injury to, by jailer, 3661. officer allowing, to escape, 3577. officer maltreating, 3659. person conveying messages, weapons, etc., to aid escape of, 3662. effect of, when murder, assault or escape follows, 3662. sheriff confining in improper apartments, 3660. private corporation's offices, burning of, 3337, 3344. prize-fighting ; person engaging in, 3707. person gambling on, 3707. process; return of; failing to make or making falsely, .3604. public buildings of county, municipality, etc., isurning of, 3337, 3344. public buildings of state ; disorderly conduct about, 3742. person injuring in any way, 3742. person marking or defacing walls of, 3742. public grounds of state ; person trespassing upon, 3745. public meetings; person wilfully disturbing lawful. 3704. public office ; buying and selling, 3-571. public officer ; accepting bribe. 3568. allowing escape of prisoner, 3577. contracting for state, etc., with himself, 3572. county ; embezzling county securities, etc., 3408. swearing falsely to report required. 3605. entering upon duty without qualifying, 3565. INDEX. CRIMES AND PUNISHJIENTS— C0H/i»«e(f; imblic officer — continued. failing to account for public moneys, 357C. discharge duty, 357G, 3592. file statement of fines, etc.. 3579. inform board of public charities, 35UG. pay over fines, etc., to treasurer, 3594. publish reports required by law, 357G. farming out his office, 3.j71. interested in sales to institution with which connected, 3833. member of general assembly accepting bribe, 3570. offering a bribe to, 35G9. resisting, in discbarge of duty, 3700. speculation in claims against state, etc., 3575. state, embezzling securities, etc.. of state, 3407. public schools : officer of. interested in contracts for supplies. 3833. 3835. census ; committeeman taking or retiirning falsely, 383G. disturbing or injuring school property, 3838. officers of, failing to provide four months' school, 3S37. school books, any one selling at more than contract price. 3S.S4. punishment prescribed in all cases of assault, 3G20. quarantine ; live stock transported across line, 3294. person failing to comply with regulations, 3449. pilot or master of infected vessel bringing to harbor, 3451. schools; authorities failing to perform duty as to, 3440, .S441. traveler from infected places refusing to obey regulations of, 3454. violation of regulations as to station on Cape Fear river, 34.50. races ; horses entered for, fraudulently, 3429. railroads : beating one's way on train, 3748. building, without authority. .3707. charging exorbitant rates. 3768. conspiracy with retiring officer to prevent successor from obtaining company's property. 3760. crossing; failing to maintain, 3753. discriminating ; against connecting lines, .3751. against A. and N. C. railroad, 3750. between shippers, 3749. engineer, conductor, etc., intoxicated while on duty, 37.58. failing to maintain cattle-guards at proper points, 37.53. to keep up certain bridges, ."775. injuring roadbed without malice, .3755. with malice. 37!54. homicide, when accident follows causing death. 37.54. injuring rolling stock, buildings, etc.. ,375G. train without malice. 3705. intoxicated person entering train after being forbidden. 3757. maliciously placing anything on track, 37.54. homicide, when accident follows causing death. 3754. officers, etc. : embezzling company's money, etc.. 3403. venue of action against, 3403. person conspiring with, to embezzle company's funds, etc.. :i-104. venue of action, 3404. retiring, failing to turn over property, 37G0. placing passenger cars before baggage, freight, etc., 3747. pooling freights, .3762. refusing to ol)oy regulations relating to trackage, 3751. removing packing, etc., from journal boxes of cars, etc., .37.59. second-class passengers riding in first-class coach. 3761. shooting or throwing at cars or locomotive. .3763. state interested, failing to make certain report, 3.59.5. tickets of. sold or dealt in by "scalper." 3764. trains run by, on Sunday, Illegally, 3844. 1236 INDEX. CKIMES AND PUNISHMENTS— con/MiMCfZ; rape ; assault with intent to commit, 3G38. deflned, and ijuiiisliment prescribed. See Rape, real property ; injury to bouses, fences, etc., 3G73. malicious injury to, 3677. rebellion, engaging in or inciting, 3437. receiving stolen goods. 3507. records ; taken for fraudulent purposes, or injured, 3508. register of deeds disposing of public laws, etc., to own use, 3598. failing to discbarge duty, 3599. to keep indexes required by law, 3G00. marriage license ; issuing to white person and negro, 3370. refusing copy of election returns, etc., 3398. swearing falsely to statement required, 3G05. registration of domestic animals procured fraudulently, 3308. religious congregations, disturbing, .3705, 370G. repairing boats in public docks of Wilmington, 35.54. resisting an officer, 3700. rivers, etc., supervisors falling to establish high-water marks, 3782. roads; damaging, by hauling timber, not repairing, etc., 3778. gates across, person leaving open or injuring, 3781. interfering with making, laid off according to law, 3784. obstructing or altering, leading to church, 3784. overseer of, wilfully neglecting duty, 3785. person failing to attend and work public, 3779. sign-posts on, any one removing or defacing, 3783. supervisors failing to establish high-water marks at fords, 3782. robbing fish-nets. 3478. graves, 3672. running trains on Sunday against regulations, 3844. sales ; .3803-3832. See Sales. animals with contagious diseases, 3295. certain birds in certain counties. 3472. corn, unlawfully, 3809. food. See under this bead, Food. etc. goods, marked or branded fraudulently, 3850. hides of otter, muskrat, etc., .3467. liquors. See Liquors. meat of diseased animals, 3442. poisons, illegally, .3649, 3655. 3829. sanitary regulations concerning disinfecting, violated, 3446, 3449. sausage ; selling adulterated, 3444. sawdust ; obstruction of streams by. 3382a. throwing, in streams of certain counties, 3382a. school books ; selling at more than contract price. 3834. school census ; committeeman taking or returning falsely, 3836. school-house : setting fire to or procuring to be done, 3345. school officers failing to quarantine against certain diseases, 3440, .3441. scrip, etc.. person accepting as money, issued without authority. 3711. issuing, to circulate as money, .3711. non-transferable: employer issuing to laborers, 3730. seamen: ont icing, away from vessel, 35.55, 3.5.56. secret assault with deadly weapon, 3621. secret political societies; person joining any oathbound, .34.39. secreting property with intent to binder enforcement of lien. 3436. seduction of virtuous woman under promise of mai-riage, 3354. marriage a bar to prosecution, 3354. unsupported testimony of woman not sufficient, 3354. selling wrongfully. See Sales, servant ; enticing, to leave master, .3365. sewerage ; discharging, into streams used as water sujiply, 3858. 1237 INDEX. CRIMES AND PUNISHMENTS— ro/i//)iHCe?; sheriff ; allowing prisoner to escaiie, 3577. oous)jiriiJg to wrongly value homestead, 3585. executing deed for property wrongfully sold at tax sale, 3790. failing to — attend tax sale, 3790. furnish tlerk list who have paid poll tax, 3400. give receipt when poll tax is paid, 3402. obey comiuitment of prisoner from another county, etc.. .3003. perform duty, 3570, 3592. publish list of delinquent taxpayers, 3.587. return process or making false return, 3G04. return writ or venire facias, 3C02. prisoner confined by. in improper apartments, 3600. refusing to surrender tax lists, 3788. selling property not liable for taxes, 3790, swearing falsely to statement required, 3005. shipping certain birds out of state ; evidence, 3471. out of certain counties, 3472. shooting: generally. See Assault: Hunting, fish, 3418, 2456, 2466. in Neuse river, 2456. or throwing at cars or locomotive, 3763. wild fowl in — Currituck county against regulations, 3474. Dare county against regulations, 3476. New Hanover and Brunswick counties, etc., .3477. Pamlico Sound, Hyde county, from batteries not on land, .3478. signature of person obtained by false pretense, 3433. sign-posts on roads ; removing or defacing, 3783. slander ; innocent woman charged with incontinenc.v, SCAO. sodomy; committing crime against nature, .3349, spirits of turpentine adulterated ; offered for sale, 3830. stallion ; allowed by owner to run at large, 3323. state hospital : violating ordinance of directors of, 309.5. state institutions: olficers failing to make certain reports, 3595. state oflicers. See under this head, Public officer, etc, state tax commissioners ; refusing to exhibit books, etc., 3792. state treasurer ; fraudulently accounting or reporting, 3600. steamboats: riding first-class cabin having second-class ticket, 3701. steam-heating ; person turning on steam to defraud, .3006. stevedores loading or unloading vessels without license. 3791. stock law : person violating provisions of. See Stock Law. stone horse or nnile allowed to run at large. .3323. strays : person failing to comfily with law as to, .3.306, street cars; company failing to provide fenders for, 3801. vestibuU'd fronts, 3800. subornation of perjury defined, 3616. Sunday: fishing on, with nets or seines, 2836, .3841. hunting game on, 3459, 3842, .3843. inu'suing ordinary vocation on, 28.36. running trains on, except as allowed, .3844. selling liquor on, .3532. supreme court reports, etc. ; cu.stodian disposing of, 3.598. surveyor failing to have chain measured and sealed, 3684, needle tested, .3743. taxes; city collector failing to settle. .3009. constable failing to settle, 3609. corporation officers failing to turn over to sheriff, etc.. 3786. officer enibej'.zling, 3410, person failing to pay license tax, 3787. tax lists; sheriff failing to surrender, etc., 3788, 12.38 INDEX. CRIMES AND PUNISHMENTS— coHiinweii; tax sale : sheriff failing to attend or wrongfully selling, etc., 3790. telegram ; opening or reading another's, etc., 3728. operator, messenger, etc., divulging contents, etc., 3846. person wrongfully obtaining knowledge of, 3846. telegraph or telephone fixtures ; person injuring, etc., 3845, 3847. telephone message ; obtaining knowledge of contents by connivance, 3848. operator, messenger, etc., divulging contents, 3848. tenant ; abandoning crops after being advanced, certain counties, 330(>. 3367. employing, who abandoned crop. In certain counties, 3366, 3367. injuring houses, fences, etc., during his term, 3686. persuading, to abandon crop, certain counties, 3367. removing crop without satisfying landlord, 3665. surrendering possession to other than landlord, 3682. terrajiin ; catching, wrongfully, 2360, 2370. ticket broker ; dealing in railroad tickets without authority, 3764. timber-mark ; person destroying or erasing, 3855. timber trees ; brands of ; using without owner's consent, 3854. carrying off feloniously, 3511. cutting down, injuring or removing another's, .3687. cutting, on land after entering Ijefore obtaining grant, 3741. tenant destroying, in any way, 3086. town ordinances : violating, 3702. trademarks ; forging or counterfeiting, 3850-3852. defacing, on timber, 3855. larceny of timber marked, 3853. selling goods, etc., knowing branded fraudulently, 3850. taking timber with another's brand on It, 3856. using: brands fraudulently, 38.50, 3851. timber trademarks fraudulently, 3854. trained nurse ; using title "registered nurse," without license, 3656. trainmen intoxicated while on duty, 3758. trains ; any one placing obstructions before, 3754, 3755. accident causing death : homicide, 3754, 3755. beating one's way on, 3748. coupling baggage, freight cars, behind passenger car. 3747. run on Sunday, except as allowed, 3844. taking waste from joiu-nal boxes, etc., 3750. tramps ; entering dwelling-house without consent, 37.36. carrying firearms or threatening to do Injury, 3736. going about begging ; discharged, when, 3735. kindling fire on highway or land of another, 37.36. ■ maliciously injuring personal or real property. 3737. transporting live stock across quarantine line, .3204. trapjiing by nonresident of otters, muskrats or minks. 3407. traveler refusing to comply with quarantine regulations, 3454. treason. 3437, 34.38. treasurer of benevolent society : embezzling funds, 3409. lending money of society without its consent, .3409. trespass ; after being forbidden, 3688. cutting or removing another's timber trees, etc., 3687. cutting timber trees, after entry, before obtaining grant. 3741. lumting on hind of another without permission, ,3480, 3481. injury to private oyster grounds, 2402. on lands by riding, or driving stock, etc., .3.320, 3321. public grounds of state at Raleigh. 3745. state lands, or of board of education. 3746. taking unlawful possession of another's house, etc.. 3685. trout, mountain. 3418. See Mountain Trout, trustee for creditors violating duty. 3680. trusts and monopolies ; person violating law concerning, 37.39. 12.39 IXDEX. CRIMES A.NU PUNISHMENTS— fo/i//;uH(/; turnpiki' couipaiiy, I'liiliiig to koei) up lertain bridges, 3775. state iuterested, failing to report, 3595. uuloaded gun or pistol ; jjointing, at another, 3622. vagrants ; defined, 3735-373S, 3740. venire facias: sheriff failing to return writ of, 3002. vessel : anchoring on range line of lighthouses, 3550. contagio>!s di.aeases aboard, master landing, etc., 3451. encumbering doclvS of Wilmington, etc., with barges, etc., 3547. enticing seamen from, 3555. fastening to bridge over navigable stream, 3774. Hats, barges, etc. ; failure to remove from docks after notice, 3549. mooring or fastening to buoys, etc., 354G. navigation of, obstruction, 2443, 3543, 3553, .3559, 3501. oyster boats ; using without license, 2387. displaying false number on, 2388. refusing to exhibit license. 23S9. unloading, on Sunday or at night, 2394. passengers riding in wrong cabin after forbidden. 3701. removing, from mooring, 3544. repairing, in public docks in Wilmington, 3554. steamboat companies. See under this bead, Counnon carriers, etc. stevedores loading or unloading, without license, 3791. throwing substance from, 3500. vestibule fronts on street cars ; failing to provide, .3800. wagoner leaving camp-fires burning, .3347. warehouse; burning wilfuU.v and maliciously. .3.338. disposing of goods deposited in public, 3831. water-courses. See Drainage; Fish; Navigation; Obstructing, water-mill : owner of, failing to keej) certain bridges repaired. .3772. watershed : depositing dead body on, of public water suppl.v, .3802. deposithig human excreta on, of public water supply, 38.')7. municipality not providing tub system for excrement, 3800. municiiial ollicers f.-iiling to inspect. 3801. water supply ; depositing dead body on watershed of any public. 3802. depositing human excreta on watershed of public, 3857. officials of municipality failing to inspect, .3801. person damaging another's, etc., 3450. .3457. person damaging, of any public institution, 3458. person polluting any public, 3802. wills, codicils, etc., taken for fraudulent puiimscs. 3."1(p. witnesses. See Witnesses. person intimidating, or attempting to intimidate. 30!)(!. refusing to testify before board of internal impri>voments. 3093. . refusing to testify before count.v board of education. 3840. subpoenaed by committee, general assembly: failure ti respond, 3092. by corporation commission, refusing to testify. 3001. wood carried off another's land wifb felonious intent. :i511. without felonious intent, :?511. woods ; setting fire to, 3340. wrecks; connnissioner of. resisting or obstructing. .3.504. person finding wrecked property failing to report same, .'l."4S. CUIMINAL PROORDTltE : abatement; jilca in, to corri'ct venue. 3239. accessories to felonies; trial of, .32S7-.3290. See Accessories. punished, when principal not tried, .3288. accused iierson : bail allowed when : who takes. .3207-.3213, .3228. counsel allowed. 31.51). failure bi indici wlien charged with felony. dis(liarge55. service of process ; officers can not require fee advanced, 2804. solicitor ; approves bill of cost, 12.50. discbarges witnesses wben case disposed of. 1305. files with clerk names of witnesses entitled to prove, 1305. iUQuires into lynching, 3200, 3201. furnishes grand jury with evidence as to, 3233. state liable for costs, when, 12.j9-1203. state's witnesses ; when and bow many paid, 1303. supreme court; affirming superior court, clerk's duty, 32S3. not affirming decision, clerk dockets, 3"2S3. tenancy in common, how alleged in Indictment, 32.50. trial; justice's court, 325(>-;i2Gl. See Courts, Justices'; Trial, Criminal Action, justice may associate another justice with him, when, 3154. superioi' court, 3262-3273. See Trial, Criminal Action, venue, 3233-3239. See A'enue, Criminal Action, improper ; plea in abatement to correct, 3239. trial of accessories, 3287, 3288. beating one's way on train, 3748. bigamy, 3301. discrimination by railroads, 3750. embezzlement by railroad employees, 3403. conspiracy to embezzle, 3404. laid in indictment, 3239. verdict in criminal cases. See Verdict, Criminal Action, warrants ; for persons charged with crime, 3156-3102. See Warrants, peace warrants, 3105-317.5. See Peace WaiTant. search warrants. 3103, 3164, 3557. See Search Warrant, witness ; amount of fee of, 1296. attendance of, proven before clerk, how, 1299. before grand jury, entitled to fee, when, 1302. committed to jail, when, 3232. defendant's paid by county in what cases, 1289. discharged, as cases disposed of, 1305. failing to attend, etc., penalty, 1643. fees, etc.. can be demanded, when, 1298. justice binds over, for state, on appeal, 1304, 3204. binds over on preliminary hearing, 3203, 3204. paid, in only one case a day, 1303. required to give security for appearance, when. 3204. state's, paid by county, when, 1289. CKOATAN INDIANS: marriages of, with white persons or negroes void, 2083. CItOP PESTS : preventing or seeking to prevent inspection of premises for, 3713. violating regulations for destruction of, misdemeanor, 3724. CROPS : abandoned by tenant after advanced ; misdemeanor, when. ;!:',i;(;, 'MtM. burning of, after gathered, but not stored, felony, 3339. sedge or grass standing in field, felony. .'?.3.39. conunon fence not removed while crops growing, .3412. (•r(>pp<^r f.iilhig to cultivate when advanced: remedy, 20.5(1. deiedeiit's nngathored, are personalty, 47. growing, exempt from sale under execution, 632. landlord and tenant's controversy over, 1993-1997. See I/.nidlonl and Tenant. 1244 INDEX. CROPS — ccntinued: landlord seizing, wlien nothing due bim, misdemeanor, 3064. larceny of, standing ungatliered in field, 3503. lien on, for advances, 2052-2057. for rent, ]0(I3. person cultivating may have cartway established, 20SG. tenant's, not sold under execution, when, 1098. tenant removing, without satisfying claims of landlord ; misdemeanor. 3065. title to, deemed vested in landlord until when, 1993. CROSSING, RAILROAD : See Railroads. CRUELTY TO ANIMALS : See Crimes and Punishments. CURTESY, TENANT BY THE : estate ot, lost, when. 2109, 2111. husband entitled to wife's lands as. when, 1730, 2102. CUSTODY OF CHILDREN: application for. before clerk, 1772. contest between husband and wife over, 1570, 1853, 1854. forfeited by parent by abandonment, 180. parents divorced ; judge disposes of, 1570. restored bow, 181, 1853, 1854. ^ ■ CUTTING TIMBER TREES : See Timber. DAMAGES : amount of, agreed upon, subject to verdict as to breach, 801, 862. attachment ; defendant in, entitled to, when, 763. bonds ; action on, for. See Bonds, OHicial ; Bonds, Fiduciary. claim and delivery ; defendant in, entitled to, when, 793. client's action against attorney for, when, 215. condemnation proceedings to ascertain. See Condemnation Proceedings. ejectment ; judgment for damages, when, 2004-20(10. 2010. employer liable for, violating contract with apprentice, 206. injunction ; person enjoining liable to, when, 817, 818, 1205. jury assesses, when, 553. libel and slander ; mitigating circumstances in, evidence, 502. effect of newsp-aper's retraction, 2013. life tenant failing to pay tax liable, 2859. not liable, when, 1991. mad dog biting any one, owner liable in. when, 330.">. mills; location of, 2141-2145. See Mills, negligence ; actions for damages for. See Negligence, nuisance ; judgment for. how awarded. 825. parent entitled to, for selling minor child liquor, 352.5. penal, in action for waste, 858. prisoner's action for ; against jailer, when, 3661. against county, when, 2825. railroad liable to exemplary, when, 1091. roads; damages for location of. See Roads, tenant for life or years not liable for accidents, 1991, 1992. trademark or brand; damages for use of another's, 3021. fraudulently procuring registration of. 3018. undertaking by plaintiff to pay ; in arrest and bail, 730. in attachment, 703. claim and deliver.v, 793. wrongful death ; action for damages for, 59. measure of damages, CO. DAMS: See Milldams. INDEX. DATE : claims against county, date of presentation entered, 1386. indorsement ol', on process by otficers, 314!J. negotiable instruments ; holder may insert, wben undated, 21G3. iucorrect date on, does not invalidate, 21(52. presumed to be drawn or indorsed the day written, 21G1. notary's seal accompanied by date term of notary exi)ires, 23.")la. register of deeds indorses, on instruments as flleEMURRAOE: regulated by coriioration conmiissioii. 1100. DEMURRER TO EVIDE^-CE : plaintiff lestiiiK ca.'-e. defendant may move to dismiss, 539. motion denied, defei>dant may except and appeal, 539. uia.v waive exception and introduce evidence, 539. DEMURRER TO PLEADING : answer in lieu of. when, 477. frivolous, stricken out, 472. general, not allowed, 475, 3401. grounds for. 474, 14G1. must be specified, 475. 1401. issue joined on, when, 484. reply insufficient, 48G. sustained ; amendment allowed, 500, 14G2. for mis.ioinder, action divided, 470. time for filing, 473. waiver of grounds for, deemed, when, 478. DENTISTS: license to practice, falsely claiming to have, 3043. not denied to, on accomit of race ; etc., 3G42. practicing without, a misdemeanor, 3042. can not collect charges for worl<, 3042. convicted of. amount paid dentist recovered, 3042. register of, Icept by elerl;. 915 (2G). DEPOSIT : in lieu of undertaking or bail, 450, 503, 598, 737, 744. applied to plaintiffs .iudgment when. 747. bail substituted for deposit, when, 740. sheriff's dut.v to pay, into court, 745. liens discharged by depositing amount of. 2033. married women ma.v, and draw checks, 2095. trust funds ; at fiduciary's risk, 1793. ordered dejjosited by judge, 850. trustee failing to deposit, procedure, 851. DEPOSITIONS : cause removed to another county : effect as to taking, 1042. conuuissioners to take; commission issued by clerk, 901, 1052. duties as to return of depositions, 1052. fee of. taxed how, 1208 (0). power to administer oaths, 1049. enforce attendance of witnesses, 1050. punish for contempt, 1G49. connuitment in, states what, 1G49. subpcena witnesses, 1G49. costs of taking; adjudged how, 1208 (0). to be used in other state, secured, 1055. justice's court ; procedure as to, 104(!. motion to reject, made before trial, when and bow. 104S. notice of time and i)lace for taking, 1052. objeclion that proper time not given ; burden of proof, 1052. not quaslied after trial begun, when. 1047. read on trial in what cases, 1045. taken how, generall.y, l(i52. in hearing before nnmicipal and odier authorities, 1053. quo warranto proceedings, ](!54. to be used in another state; procedure, 1055. 1248 INDEX. DEPOSITIONS— co/ii/)! ((erf. • will proven by, when, 3131, 3132. witnesses; attendance before commissioner enfurced, 1G50, 1C.5.J. fees of, 1301. refusing to testify, guilty of contempt, 1649, 1653. remedies against defaulting, before commissioner. 1651. subpoenaed by commissioner, 1649. by judge, when action in another state, 1655. DEPOTS : See Railroads. DESCENT : rules of, 1556. DESCRIPTION : conveyance of land not void for lack of, when, 948. entry of land must have, 1707. of oyster beds, etc., must have, 2376. evidence, parol, to fit land to, when, 1605. land described : in mortgage sale notice, 1043. in notice of purchase at tax sale, 2903. partition of estate between heirs, 2494. DESERTION : child deserted by parent, custody forfeited, ISO, 181. cropper abandoning crop in certain counties : effect, 2001, 20.56. husband abandoning wife and family, misdemeanor, 3355. railroad station abandoned by company, 1098. wife abandoning husband, effect on wiife"s right, 8, 2110. DETECTIVES : over three, going armed, each guilty of misdemeanor, 3703. DETINUE: See Claim and Delivery. DEVASTAVIT : personal representative liable for, when, 167. not liable for, when, 96, 168. DEVISES : See Wills. DIAMOND-BACK TERRAPIN : close season for catching ; proviso, 2370. persons using dragnets to catch ; misdemeanor, 2369. DISABILITIES : adverse possession as against married woman, 363. betterments valued to persons under, as land, 665. insane person deemed to have pleaded all defenses, 361. must exist when right of action accrued. 365. removed ; when certain actions must be brought, 362. several : limitations does not attach till all removed, 364. statute of limitations does not run against jiersons under, 362. DISCHARGE : mortgages and deeds of trust released, how, 1046. negotiable instruments discharged. See Negotiable Instniments. Rev. Vol. 1—75 INDEX. DISCLAIMER: defendant's : to title to land in action of trespass, 863. to title in action to quiet title, 1589. plaintiff's, to any per.sonal claim against defendant, 1270. DISCONTINUANCE : effect of failure to keep up chain of summonses, 438. DISCOVERY : action for. abolished ; but parties may be examined, 804-87 I DISEASES, CONTAGIOUS: See Crimes and Punishments. DISMISSAL OP ACTIONS: demurrer to evidence sustained, 539. failure to file complaint, 4GG. indictment not quashed for want of form, 3254. justice dismisses for lack of jurisdiction, 1421, 1423. new action brought within one year after, when, 370. plaintiff failing to prosecute. 503. process not quashed by justice for lack of form, 1467. DISPENSARIES: See Liquors. commissioners appointed to manage ; compensation ; bond, etc., 2075, 2076. employees appointed, etc., by, 2075. powers of, generally, to regulate, 2075, 2077. removal of, 2076. settle with town authorities, 2078. drinking liquor in, or refusing to leave; misdemeanor, 3515. elections to establish. 20G9-2073. See Elections. carried, dispensary established, 2074. defeated ; none until another election carried for, 2074. manager : adulterating liquors, misdemeanor, 3520. buying without authority, misdemeanor, 3520. duty to keep order, 2077. keep register of sales, 2077. making false entries on books or false returns, misdemeanor, 3520. selling liquors to minors, misdemeanor, 3524. to any one, outside of dispensary, misdemeanoi-, 3.531. order kept on premises, 2077. proceeds of sales of, how distributed, 2078. purchasing liquors at. for minors, misdemeanor, 3523. sales of; must be made in dispensary. 2077a. no sales on credit, 2077. on Sunday or election days, 2077. to minors, 2077. price of liquors fixed by commission, 2077. unbroken packages only, 2077. unlawful, in any way except as provided, 2077a. DISSENT : widow may dissent from husband's will. 3080. effect of, 3081, 3084. DISSOLUTION: corporation. See Corporations, partnership. See Partnership. DISTILLERIES: See Liquors. 1250 INDEX. DISTRIBUTION : assets of assigned debtor, within one year, 973. dead bodies to medical schools, 35G7. decedent's estate, by administrator, 132-137. See Administration. DISTRICTS, JUDICIAL : counties composing; courts held in, when, 1506. DISTURBING : See Crimes and Punishments. DIVIDENDS : See Corporations. DIVORCE : absolute ; effect of, 7, 1509, 2109. alimony. See Alimony. bed and board : alimony, 1505. See Alimony. effect of, 9, 2102, 2110, 2111. bond for cost ; none I'equired, 1558. costs; adjudged bow. in action for, 1268 (4). custody, etc., of children, on divorce granted, judge determines, 1570. guardian appointed, 1770. evidence of adultery ; neither party can give, 1564. grounds: for absolute divorce, 1561. for divorce from bed and board, 1562. issue in ; can not be referred, 518. must be determined by jury. 1564. judgment, only after jury's verdict, 1564. jurisdiction of action for, 1557. marriages ; certain, declared void on application, 1560, 2083, 2084. procedure in actions for — action not commenced until six months after discovery, 1563. complaint ; affidavit to accompany, 1563. deemed denied ; trial by jury, 1504. time of filing, 466, 484. summons served by publication, when, 442. trial ; jury must find facts, 1564. at what term, 484. venue in action for, 484, 1559. wife's affidavit of intention to bring action, 1563. application for alimony pendente lite, 1566. See Alimony, filing same ; gets benefit of wages, etc., 1563. DOCKET : clerk keeps court dockets, 913-915. duty as to recording in; See Clerk, Superior Court, justice'.s ; all proceedings entered on, 1416. filed with clerk, 1417. failing to file, misdemeanor, 3578. furnished by county commissioners, 1416. unfilled, delivered to successor, 1418. DOCKS : flats and barges obstructing docks, removal compelled. 3549. logs, etc., encumbering, in Wilmington, misdemeanor, 3547. DOGS: bitten by mad dog ; owner of, failing to kill, misdemeanor, 3305. owner liable if any one bitten, 3305. failing to list, for taxation, double taxed or dog killed, 2971. female, allowed by owner to run at large, misdemeanor, 3303. 1251 INDEX. DOGS— fo»(ni»ef/; larceny of, listed for taxation, 3501. sbeep-killiug; owner refusing to kill on notice, 3304. any one can kill if found at large, 3304. towns may tax, 2924. DOWER : allotted : by agreement, when, 3087. applicatiou for allotment, 3088. how land iu another county taken to account. 3089. in cue piece of land, if desired, 3084. notice to parties, 3000. oath of jury, 2360. procedure, 3089. consists of what, 1730, 3084. conveyance; by husband alone, effect of, 9.59. 308.5. wife joining in, and privately examined bars dower, 3086. insane, husband can convey free of dower, 950. divorce bars, 2109, 2110. fees of sheriff in allotment proceedings. 2777. growing crops do not puss with land allotted as, 47. lands in which wife endowed. 1730, 3084. mortgage by husband alone to secure purchase money bars, 3085. not taken for husband's debts, 3082. partition of land covered by, 2508, 2509. who entitled to, 3083. who not entitled, 2110. wife may quitclaim and release, on marriage, 2108. DRAINAGE: See Volume II. bridges across drainways must be maintained, 2697. canals, etc., cut by consent, obstructing a misdemeanor, 3375, 3376. costs in proceedings to drain lowlands, 1268 (8), 1269. damages assessed for ; commissioners' compensation, 2795. obstructing ; ditches or dams constructed by legal proceedings, misde- meanor, 3381. drain used in mining operations, misdemeanor, 3380. (lrain\^:iys on farms, l)y felling trees therein, etc., misdemeanor, 3382. streams in drainage district, misdemeanor, 3378. person refusing to comply with requirements for, misdemeanor, 3377. refusing to act as commissioner for, of swamps, etc., misdemeanor. .3370. servient owner obstructing canal or ditch, etc., misdemeanor, when. .3375. 3376. DRAW BRIDGES : See Bridges, county erects, when, 2698. fastening vessels to, 3774. owners of steamboats notifying bridge owner to erect. 2609. failure to erect, forfeiture, 2699. railroads required to maintain, when, 2701. DRUGGIST: See Pharmacists. DRUNKENNESS : conductor may i)rovent intoxicated per.sou from entering tr.-iin. 2U2iI. drunkards. See Inebriates. habitual, ground for divorce from bed and board. 1502. not permitted at dispensaries, 3515. public, a misdemeanor, 3733. ticket agent may refuse ticl794. dynamite; killing flsh by exploding; misdemeanor, 2-l(i(). sold without a special license ; misdemeanor, 3S17. EXPRESS COMPANIES : corporation commission ; duty and power to investigate, 1004, 10G6-1071. demurrage: rates of, fixed by corporation commission. 1100. discriminating between connecting lines ; penalty, lOSS. handling of freight by. at stations, regulated, 1094. long and short haul rates conti-olled, how, 1107. penalty : for officer's, etc., failure to make report required, 1089. for refusing to obey orders of corporation commission, 1087. rates of; regulated by corporation commission, 1099. 1104-1107. 1109. revised, when, 1106. sales of unclaimed freight by, 2G37. schedule of : filed with commission, when ; published, 1109. evidence in all courts, 111'2. ■ transportation allowed of certain freight by, free. 110.5. FACTOR : doing business as trader, etc., without showing interest; liability, 2118. FACTS : examined into by judge on habeas corpus, 1846. issues of. See Issues of Fact. judge must not express opinion as to, .535. FAIRS: horse entered for races out of its class, felony. 3429. injuring exhibit at. or going to and from, misdemeanor, 3668. indictment sufficient, when, 36(18. jierson entering grounds without permission : misdemeanor, 3669. FALSE IMPRISONMENT : costs in civil action for damages for, to whom allowed, 1264 (4), 1266. limitation, statute of, bars action for, when, 397 (3). FALSE PRETENSE : accused tried for, can not be tried again for larceny, 3432. advances obtained by promise to work and failing, misdemeanor, 3431. by false representation of subsisting fact, felony, 3432. written promise to pay from certain fund, misdemeanor, 3434. displaying false number on oyster boat, 2.388. indictment for. need not state who defrauded, 3432. INDEX. FALSE PRETENSE— confmttcd; insurance agents making false statements to defraud company, misclc- meauor, 3487. olitaining premiums by false representation, misdemeanor, .S-lSii. marriage license obtained by, misdemeanor, .3371. oysterman's license secured- by, 2390. pedigree of breeding animal falsely represented, misdemeanor, 3307. person, etc., making, of financial condition, felony, when, 3326. registration of domestic animal procured by, 3308. signature obtained by, felony, 3433. FARO-BANKS : conducting, misdemeanor, 3717. FAST DRIVING : over bridges, misdemeanor, 3780. violation of regulations concerning automobiles, misdemeanor, 3793. FEEDING STUFFS : See Food. FEES : See Salaries. action by officer to collect, barred, when, 39.5 (8). advanced, when, to officers, 1254, 1440. 1859, 2804. appraisers: of damages for erecting mill. 2139, 2140. of exemptions of debtor. 096. attorney general, 1084, 2747. auctioneer, 221. bauk examiner. 2755. chain-carrier, 2802. clerk, superior court. 266, 1799, 1234, 2377, 2773. clerk, supreme court, 2769. commissioner of aflidavits, 2796. compen.sation of officers otherwise than by. See Salaries, condemnation proceedings; commissioner's, in, 2790. constable, 1600, 2787. contested elections ; fees of office recovered, how, 835-837, 842, 844. coroner, 2775. corporation commission turn all, into state treasury, 1114. costs, in civil and criminal cases, 1249-1308. See Costs, county surveyor, 1724, 2802. county treasurer, 2778. entry-taker, 2801. governor's private secretary, 2737. .lailer, 1938, 2799. .iuror, 1666, 2798. justice of the peace, 1666, 2788. mayor, 2934. mileage allowed to officers. See Salaries. mills, location of; commissioners', for assessing damages, 2794, notary public, 2800. paid by whom, 2804. partition ; commissioner's, in, 2791-2793. pauper suing, officer can not renuire, 2804. pensions ; county board of, 2783. per diem, officers paid. See Salaries, receiver, 2797. register of deeds, 20.55, 2656, 2776. salaries paid officers. See Salaries, secretary of state, 1104. 12.33, 1234, 1755, 2742. 3014-3016. officers making returns to, entitled to. 2743. turns certain fees into state treasury. 2741. Rev. Vol. 1—76 1205 INDEX. FEES — co-nlinued: sheriff, 1859, 2777, 2883. solicitor, 1084, 1288, 2767, 27G8. state board of healtli, for analysis of water supply, 3055. state librarian ; fees of, for copying, 2748. witness, 2803. FEE SIMPLE: conveyances construed to be in, when, 946, 2673. devises construed to be in, when, 3138. estates tail converted into, 1578. ^fts to slaves convey in, when, 949. lost deed, registi^y destroyed, presumed to be in, 1602. FEIGNED ISSUES: abolished ; questions of fact tried, how, 357. FELLOW SERVANTS : railroad employee injured by negligence of : company liable, 2646. killed, personal representative sues, 2646. FELONY : arrest on Sunday for, 2837. defined, 3291. punishment for, where none prescribed by statute, 3292. FENCES : barbed wire; building, unlawfully, in certain counties; misdemeanor, 3769. cutting wire, or injuring same ; misdemeanor, 3413. injuring wilfully: misdemeanor, 3673. joint ; built by owners of land on both sides, when, 1664. how removed : notice required, 1671. removal of, when crop growing; misdemeanor, 3412. repaired after notice, how, 1670. when owner adjoining can be made to pay half, 1665. how value appraised, 1666-1669. verdict of jury ; registered ; judgment, 1608, 1669. lawful : height of, in different counties, 1660-1662. watercourses declared, how, 1663. removing, from around graves ; misdemeanor, 3081. stock-law fence, etc., 1672-1686. See Stock Law. tearing down, misdemeanor, 3411. tearing down, wilfully ; misdemeanor, 3673. tenant injuring or removing, misdemeanor. 3686. valuation of, by jury, in action for contribution, 1666. verdict of jur.v, 1666, 1667. registered by register of deeds, judgment, 1668. watercourses declared to be lawful, when, 1663. FERRIES : action against owner of, for damages, how brought, 2709. appeal from county commissioners as to, 2690. bond given by owner of, 2709. condemnation of land for site for, 2691. damages by, indemnity bond for, given. 2709. existing, by virtue of any court order, declared i)ublic ; 2681. owner ; failing to keep up public, etc., penalty, 2707. may build a toll bridge instead of ferry, 2708. must erect draw in, when, 2708. passenger on, delayed ; remedy, 2709. 1266 INDEX. FERRIES — continued: petition to establish, 2684. costs adjudged, on hearing, how, 12G8 (5). granted or refused, 2690. notice of, given how, 26S4. powers of county commissioners over, 1318 (8). tolls of; regulated by county commissioners, 2707. charging greater rate than fixed, penalty, 2707. ferry owner building bridge instead must charge, 2708. unauthorized, conducting, within five miles of public ; penalty, 2710. mail carriers may use for certain purposes, 2710. FERTILIZERS : See Volume II. common carriers failing to inform board agriculture, misdemeanor, 3819. manufacturing, of fish unlawfully caught, misdemeanor, 24.38. removal or sale of, after being condemned ; misdemeanor, 3820. sale of; when ingredient deleterious to plants, misdemeanor, 3818. in violation of regulations ; misdemeanor, 3821. without tags; misdemeanor, 3822. FINANCE COMMITTEE : See County Finance Committee. FINES : embezzlement of ; felony, 3594. imposed by court; paid to county treasurer, 1378. go to school fund, 1378. judgment for, docketed, force of, 3282. execution on, stayed, pending appeal. 3282. mayor may sentence to work on street to pay, 2937. officer failing to file statement with education board, 3579. penalties. See Penalties and Forfeitures, prisoner refusing to pay, sent to jail, when, 1308. record of, kept by clerk. 915 (20), 1377. kept by justice, 1377. by treasurer, 1398 (4). report of, to state superintendent of public instruction, 1378. FIREARMS : carrying concealed, 3708. conveying to prisoners to effect escape ; felony, 3662. detectives in bodies of more than three carrying : misdemeanor, 3703. furnishing, to lunatics or convicts, misdemeanor, 3517. selling, to minors, 3832. shooting fish, misdemeanor, 2456, 2466, 3418. or throwing at train, misdemeanor, 3763. on bridge across Trent river at New Bern. 2456. wild fowl in certain places, misdemeanor, 3473, 3474, 347(i-3478. FIRE DEPARTMENT : buildings ; regulations as to erection and inspection. 2981-3011. See Buildings in Towns, chief of; appointment and compensation by municipal authorities, 2981. acts as building inspector, 2982. duties as building inspector, 2082. fireman exempt from jury duty, 1080. FIRE INSURANCE : See Insurance ; also Volume II. 1267 INDEX. FIRE LIMITS: iiiuniciiial authorities must establisli, 20S5. FISH: dynamiting : misdemeanor, 2400. fisheries. See Fisheries. fishing. See Crimes and Punishments : Fishing. marlveting of, on streets of towns, 2928. obstructing. See Crimes and Punishments ; Milldanis. sale of, for food. See Food. shooting ; misdemeanor, 2450. 240G, 3418. watercourses, obstructing or i)oIluting. See Obstructing; Water Supply. FISHERIES: close season, as to use of certain nets In. See Fishing. defined : with reference to Cape Fear river, 2408. established, how, 1097, 1098. improvement of land entered gives prior right of fishery, 1098. right to fisheries infringed, misdemeanor, 2400. fishing, generally. See Fishing, nonresident: prevented from operating, fraudulently. 2407. justice to issue warrant for, 2407. obstructing passage of fish; misdemeanor. See Crimes and Punishments; Obstructing, prior right to, in whom, 1098. robbing fish-nets ; misdemeanor, 2478. vessels injuring fish-nets. 2405. wilfully injuring or destroying; misdemeanor. 3414, .3415. FISHING: clams ; catching, unlawfully, 2423. close season for, in — Albemarle sound, 2440. Bear Inlet, 2450. Black river, 2470. Brown's inlet, 2450. Brunswick county, 2470. Brunswick river, 2408. Cape Fear river, 2468, 2472. Coharie river, 2472. Ci'oatan sound. 2446. Harnett county, 2472. Ilatteras inlet. 2446, 2450. Haw river, 2476. Hiawas.see river. 2458. Little river, 2443. Lumber river, 2475. marshes separating Croatan and Pamlico soinids, 2424. Myrtle Grove sound, Perrine's or Wliitakor's crook, 2426. Naiitahala river, 2477. Neuse river, 2452, 2453, 2454. New Hanover county, 2408, 2470, 2472. New inlet, 2440. 2450. Northeast Cape Fear river. 2409. Notla river, 2458. Ocracoke inlet, 2446, 24.50. Oregon inlet, 2440. 2450. Pamlico county, 24.52, P.indico river. 2427, 2428, 2429. Pender county. 2470. Samjison county. 2472. South river, 2472. 1268 INDEX. FISHING— coittinued : close season for, in — continued. Tar river, 2427, 2428. Trent river, 2455. Valley river, 2458. cooking fish, or manufactnring fertilizer from, knowing unlawfully caught, misdemeanor, 2438. diamond-back terrapin caught with drag-net, etc.. misdemeanor, 2.369. close season for catching, defined, 2370. exceptions to, 2370. disobeying regulations as to ; punishment. See Crimes and Punishments, killing fish with dynamite, etc. ; misdemeanor, 2406. license to fish in Neuse river on Pamlico side, 2453. mountain trout ; seining for ; misdemeanor, 341S. in Cataloochee creek, 2480. near Grandfather mountain, 2482. nonresident, with seines without license ; misdemeanor, 24.59, 2469. catching in Cape Fear for marketable purpose ; misdemeanor, 3816. citizen aiding nonresident to evade law; peualties, 2459, 2467. persons compelled to testify, 2459. seizure of seines for benefit of school fund, 2459. oysters ; catching, 2371-2422. See Oysters. \ poisoning streams to kill fish ; misdemeanor, 3417. regulation of, 2424-2484. setting nets across streams ; misdemeanor, 2457. Sunday ; fishing on, penalty, 3841. vessels injuring nets ; misdemeanor, 2465. violation of laws regarding ; punishment. See Crimes and Punishments. FOOD : See Volume II. "adulterated" means what. 3444. butterine defined, 3828. defined, 3444. inspection of ; obstructed, 3447, 3827. interfering with ; misdemeanor, 3445, 3447. refusal to furnish samples for analysis ; misdemeanor, 3445, 3447. misbranding ; misdemeanor, 3444. oleomargarine ; defined, .3828. sale of; .adulterated, misdemeanor. 3444. butterine, without label, 3828. concentrated feeding stuffs, without being inspected, 3807. fish, preserved or fumigated, as fresh : misdemeanor, 3444. meat of diseased animal ; misdemeanor, 3442. misbranded ; misdemeanor, 3444. oleomargarine, without label, 3828. oysters, preserved, as fresh ; misdemeanor, 3444. not culled, misdemeanor, 2392. sausage, adulterated; misdemeanor. 3444. sample of, to inspector ; refusal, a misdemeanor, 3452. seizure of concentrated, when law not complied with. 3807. violating reguhitiuns concerning concentrated: a misdemeanor. .3.807. when, deemed adulterated, 3444. FOOTV^^AYS ; established and maintained, how, 2695. by prescription, when deemed. 2605. FORCIBLE ENTRY AND DETAINER : person entering on land with strong hand ; misdemeanor. 3670. INDEX. FORECLOSURE OF MORTGAGES AND TRUST DEEDS: action for, bnrrert. when, 391. execution stayed in, how, 601. judgment in, to state what. 4G9. parties to. wlio joined as, 460. subchapter on betterments not applicable. 660. summons served by publication, when, 442. venue in, 419. power of sale; clerk executes, when, 266. clerk appoints person to execute, when, 1037. executed by agent, valid. 1035. by personal representative, when, 1031. former execution of power, validated, 1032. execution of, barred, when, 1044. surviving mortgagee executes, where more than one, 10.33. sales : under power.s — advertisement 641, 1040, 1042. cost of, 641. description of property in, 1043. time posted, 041, 1040. 1042. luider order of court, when, 643. time of, 644. taxes added in cost of, 2857. FOREIGN CORPORATIONS : certain, must file charter, etc., with secretary of state, 1194. failure to file; penalty, 1194. fees to secretary of state. 1194. powers of, concerning real estate. 1193. resident process agent of. required. 1243. failure to have, license revoked, 1243. action for revocation, how process served, 1243. service of process on, 440. 442. 1243. 1448. subpoena duces tecum issued from justice on, when, 1454. FOREIGN STATE: fugitives from, how arrested ; governor's duty. 3184, 3186. laws and edicts of, how proven, 1594. letters testamentary, etc., of, how certified, 1618. wills or deeds in, how proven, 1619. FORGERY: attempting to sell or utter forged paper ; felony, 3427. bank checks, state bonds, etc., counterfeited ; felony. 3419. bank-notes counterfeited, or parts of. connected fraudulentl.y. felony, 3420. connecting parts of Instruments together fraudulentl.y, 3420. corporation officer: fraudulently issuing stock, felony, .3421. transferring stcK'k fraudulently issued ; felony, 3421. counterfeiting and uttering coin ; offender guilty of, 3422. counterfeiting, generally. See Counterfeiting, deeds, wills and other papers forged ; felony, .3424. offering, in evidence, knowing forged, felon.v, .3424. names signed to rortain petitions without iiermission, forgery, 3426. negotiable instruments ; forgery renders inoperative. 2182. selling, knowing forged ; felony, .3425. presenting false certificate of exemption from poll tax. 3101. receipts and releases ; forgery of ; felony, 3424. selling goods with marks, brands, etc., fraudulently, 3850. judgments, notes, etc., knowing forged; felony, 342.5. uttering forged paper, felony, 3427. INDEX. FORMS : ndniinisti'iition ; application for letters of, 2G, 36. advertisement for creditors, 39, 107, 108. inventory, 42. letters of, 20, 36. adoption of minor children ; petition before clerk, 174. advertisements of sales, 641, 1042, 1043. affidavit ; proving debt against decedent's estate, 91. in action for alimony, 1566, 1563. for divorce, 1503. to secure continuance of cause, 530-532. order in claim and delivery, 791, 1496 (17). order of arrest, 729, 1490 (17). proceeding suisplemental to execution, 668. removal of causes, 425-428, 1455. warrant of attacbmeut, 7.59, 1496 (3-5). agricultural lien in certain counties. 2055. answer must contain what, 479, 481, 482, 483. appeal; notice of, and return, in justice's court, 1496 (39, 40). transcript to supreme court, 592. vmdertaking to stay execution on, 598-602; apprentic-e's indenture, 197, 198. arrest, order for, in civil actions, 731, 1496 (19). banks ; certificate of incorporation, 222. reports to corporation commission, 244. bill of exchange, 2276. bonds, fiduciary ; administration, 319, 320. guardian, 321, 323, 1778. official : county officers, 295-306, 1401. municipal officers, 2940. pilots. 307. state officers, 287-294. other than fiduciary and official. See Bonds, chattel mortgage, short form of. 1039. clerk of court, mortgage of, in lieu of bond, 268. commitment to prison, 3230. complaint ; contains what, 282, 467, 468, 501, 625, 831, 1384, 14.59, 3106. contempt; record of conviction in magistrate's court, 1496 (48). warrant of commitment, 1496 (49). conveyances; adjudication and order of registration, 1001, 1006, 1007. acknowledgment by grantor, 1002. corporate ; probate of, 1005. private examination of wife, 952-958, 1003, 1004. corporations ; certificate of incorporation, 1137. certificate of stock, 1159. conveyance of ; probated, 1005. costs : bill of ; in cases tried in county other than of offense, 1285. how generally made up, 1256, 1258, 1301, 1306. county exhibit of receipts and disbursements, 13S8. county official's annual report to commissioner, 1380. creditor's claim against assignor filed with clerk. 972. deed to equity of redemption sold under execution, 631. demurrer: to complaint in justice's court, 1496 (.35). to answer, 1496 (36). judgment upon demurrer. 1496 (37). deposition, notice of taking, 1652. dower, application for, ,3088. ejectment of tenant by landlord, 2011. entry of land, 1707. INDEX. FOHMii— continued : 1* execution; generally, 616, 622-624, 149G (40). agaiust corporations, 1212. married women, 617. tbe person. 625. jtersonal representatives, 126. attachment proceedings, 1496 (47). delivery of specific property, 627. levy of. on real estate. 692. piircbase money on land, 627. free trader ; writing registered, 2112. garnishee; order to. to appear. 1496 (12). attachment to enforce order, 1496 (13). garnishment for taxes, 2880. guardianship ; letters of, 1773. bond given before letters issued, 1778. habeas corpus ; ajipllcation for writ of, 1825, 18.57. return of writ, 1831. homestead and personal property exemption allotted, 689. 692. hunting license to nonresident, 1805. 1872. indenture: apprenticing ■minor to learn trade, 204. when court binds involuntarily. 194. indictment. See Indictment, insolvent debtors petition, 1916, 1922, 1930. issues, 549. judgment : against garnishee in attachment. 779, 780, 783. confession of, 581, 582. for costs ; clerii inserts, what, in entry of judgment for, 1255. damages for waste, 858. purchase money of land, 627. in claim and delivery proceedings, 570. of clerk, against personal representative, 124. roll. 572. tender of. in justice's court, 1496 (43-45). acceptance, 1496 (44, 45). that corporation forfeit franchise, 1209, 1210. upon demurrer in justice's court. 1496 (37). juror; summons against defaulting, to show cause, 1496 (34). justice's court uses what. See Courts. .Justices', landlord and tenant: summary ejectment of tenant, 2011. letters of administration, testamentary, and of collection. 36. lieu ; short form of agricultural lien, 2055. liquor license, 2066. lis pendens, notice of, 400. local option election, order for. 2fl69. marriage license. 2089. record of. 2091. married women ; private examination of, 952-958. 100:!. 1004. mills ; report of commissioners to condemn site. 2126. mortgage given in lieu of bond, 265. 206. negotiable instrument. 2151. notice: to coi-porate directors and stockholders to meet to decide as to dis- solution, no.'i. to defendant and sureties, of judgment nisi. .3217, 321S. oaths prescrilied for certain persons. See Oaths, order for sale of land for assets, 80. for discharge of insolvent debtor. I:l3.'f. oyster beds ; grants foi-. 2378, 2382. oysters, license to catch. 2409. partition of land ; commissioners report. 2404. partnership ; certificate of special, 252.3. 1272 INDEX. FORMS — continued: petition : for proeessioniug lancl, 32(J, 32S. for condemnation of land, 2580. sale of land for assets, 77. pleadings in civil actions, 487, 488. promissory note, 2334. protest of bill or check when dishonored, 2303. publication of plaintiff in attachment, jnstice"s court, 1496 (1(5). railroads ; certitieate of incorporation, 2548. petition of, to condemn laud for right of way, 2580. report of commissioners, 2586. recognizance to keep the peace, 3170. referee's report to court, 525. remitter, to bring action within justice's jurisdiction, 1421, 1406 (41). reply, 485. report of commissioners in condemnation proceedings, 2586. restoration to citizenship, 2675. search warrant, 3163, 3164. solicitor's certificate to clerk upon discharging witness, 1305. subpoena to appear before corporation commission. 1070. before justice. 1496 (26-28).' summons, 4.30. 431. 1496 (1, 2, 34). in special proceedings, 712. in garnishment. 779. served by publication, 443. . . tax list, indorsement on. 2850. tax sales of realty ; advertisement, 2890. certificate to purchaser, 2899. notice of purchaser to delinquent, 2903. sheriff's deed to purchaser, 2906. timlier trademark, notice of, .3024. undertaking; in arrest and bail, 730, 738, 741, 1496 (18, 20-25). .•ippeal to supreme court, 593, 594, 001. 603. attachment. 76.3. 773, 775, 785. 1496 (6. 14. 15). bastardy : putative father's, 259. before corporation commission, 1072, 1078. claim and delivery. 793, 795, 800. defendant's, in action to try title to office, 835, 842. to try title to land, 4.53. indemnifying sheriff, 785. injunction proceedings. 817. receiver's, before entering upon duties. 849. 1222. staying execution. 598-603. venire in justice's court. 1496 (31). verification of pleadings, 489-493. warrant: for ajiprehension of person charged with crimp. 31.5S. of attachment, 76.5. 1496 (7). indorsement on. of sheriff's return, 1496 (8, 9). notice of levy on intangible property, 1496 (11). order directing sale of perishable property, 1496 (10). widow's year's allowance ; complaint for. 3106. will. 3113. probate of, 3127. application for, 3125. witness: proceedings against defaulting, before justice. 1496 (.30). FRAUD : action for. by state, to annul patent, 1750. attorney at law practicing, liable in double damages, 215. blackmailing, felony, .3428. contractor, defrauding minor of wages, etc., 3428a. conveyance, fraudulent. See Fraudulent Conveyances. 1273 INDEX. FRAUD — continued: counterfeiting coin, etc. See Counterfeiting. disposing of mortgaged property to defraud creditors. 3435. certain evidence jirima facie proof, 3435. embezzlement. See Embezzlement, entering horse for races out of its class, felony, 3429. false pretenses. See False Pretense, forgery of instruments, bank-notes, etc. See Forgery, insolvent debtor, aslcing discharge ; who may suggest, 1919, 1924, 1934. fraud shown, effect, 192S. issue of fraud made up, 1927. insurance agent making false statements to defraud company ; misde- meanor, 3487. obtaining premium by false representations : misdemeanor, 3486. intent to defraud, indictment for ; substance of, 3253. limitation, statute of, bars action for relief for, 395 (9). begins to run from what time, 395 (9). negotiable instruments secured by. title void, when. 2204, 2205. person doing business as merchant or trader must show interest, when. 2118. person removing debtor to defraud creditor, liable as debtor, 1939. private examination of wife procured by fraud ; effect of, 95(5. secreting property to hinder enforcement of lien, felony. 3436. signatiH'e of person obtained by, a felony, 3433. state defrauded ; counsel of prisoner made to testify, when, 1620. tax sale ; fraud sho^TO ; effect, 2909. trademarks ; registering fraudulently, .3018. using, unlawfully, 3019, 3020. venue of action for, 1748. FRAUDS, STATUTE OF : administration, etc., not surety for estate unless by writings, 974. a.Lcrii ultural liens must be written, 2052. bankrupt debt, promise to revive, must be in writing, 978. certain contracts between husband and wife must be written, 2107. Cherokee Indian ; certain contracts with, must be written, 975. contracts of suretyship must be written, 974. liquors; contract for over .flO worth must be written, 977. revival of debt barred by statute of limitation, must be written, 371. sale or lease of land must be written, when, 97<'>. FRAUDULENT CONVEYANCES : bona tide conveyances for value valid, even tliough person indebted, 902, 964. conveyances by railroads void as to rights of action for tort, 1130. decedent's, of personalty, attacked by representative, 50. decedent's, of realty, attacked, 72. gifts of property, when person indebted, evidence of fraud, 962. heirs, within two years of letters granted, void as to creditors, 70. innocent purchasers for value protected against illegal consideration. 905. marriage .settlements void as to creditors, 9G3. no defense that only homestead in value is conveyed. 9ii0. persons removing debtors to defraud creditors, liable as debtor, 1939. purchasers of land fraudulently conveyed entitled to what remedy, 966. third persons ; effect of .iudgment setting aside, on, .50. void as to creditors, 900. purchasers, !X>1. taxes, 2880. FREE TRADER : abandoned wife deemed, when. 2117. allowed to malce contracts, etc., 2094, 2113. evidenced by copy of writing making, 2114. 1274 INDEX. FREE TRADER — continued: married woman becomes, how, 2112. from what date, 2113. when and how ended, 2115. publioation, 2115. effect of, 2115. what married women are deemed free traders, 2116, 2117, 2118. FREIGHT : See Express Companies ; Railroads. FREIGHT RATES : See Corporation Commission. FUGITIVES FROM JUSTICE: expense of bringing fugitive from this state back, paid, 3189. from another state, how arrested and held, 3184. governor must inform governor of state of fugitive of his arrest, 3186. justice's duty as to keeping records and transmitting to governor, 3185. outlawed, how, 3183. reward for, offered by governor, 3188. surrendered on order of governor, 3187. FUTURES, DEALING IN : contracts for futures made in another state or with agent of nonresident, misdemeanor, 3824. defined and punishment prescribed, 3823, 3824. person keeping office for sale of futures ; misdemeanor, 3825. procedure to apprehend offender, 3826. evidence necessary, 1690, 3826. GAMBLING : allowing, where liquor sold ; misdemeanor, 3716. betting on prize fight ; felony, 3707. on elections, 3384. defined and punishment prescribed, 3715. evidence : gambler testifying not incriminated, 1637, 1688. faro-banks, conducting, misdemeanor, 3717. futures, dealing in, 3823-3826. See Futures, Dealing in. gambler testifying, evidence not used against him, 1688. gaming tables ; allowed on premises ; misdemeanor, 3719. destroyed by certain officers, 3720. justice's duty to discover, etc., 3721. keeping, 3718. opposing destruction of ; misdemeanor, 3723. playing at ; misdemeanor, 3718. lotteries. See Lotteries. money or other thing exhibited for purpose of, seized, 3722. municipal officers charged with certain duties as to, 3716. police falling to execute laws as to ; penalty, 3716. tavern-keeper allowing, on premises, 3716. GAME BIRDS : defined, 1875. See Birds. GAME WARDEN : appointed, how, 1867. badge of, 1868. bond of, 1868. birds seized by, sold, 1870. constables, when, 1868. duties of, 1869. INDEX. GAME WAliDEN—coiitwued: outh of, 1S(;S. fee for recordiug. 18(iS. l)()\vers of. 1869. in Currituck county, 1869. to search vessels, 24.32. GAMING CONTUACTS : contracts of wagering, etc.. void. KJST. loans in consideration of, void, 1687. security for, void, 1687. future delivery contracts void, wben, 1689, 1690. futures, dealing in, 3S2;!-.3S2(). See Futures. Dealing in. no action allowed as to. 1C80. proof as to, 1691. gambling. See Gambling, invalidity of, pleaded, shifts burden of proof, 1691. idea and proof not competent in criminal actions, 1691. lotteries. See Lotteries. wagers, bets or stakes made as to race, unlawfully. 1687. witnesses as to ; players and betters competent. 1688. confession or testimony of betters not incriminating. 1688. GARNISHMENT : attaching creditor garnishees, bow, 779-7So. See Attachment, corporation failing to pay tax. garnisheed, 2881. sheriff garnishees for poll tax. when and how, 2SS0. GAS COMPANIES : maliciously injuring plant of; misdemeanor, .3671. may supply electric lights. 1132. rights of way for pipes, etc., granted over streets, 1133. tampering with plant, fixtures, pipes, etc.. of. misdemeanor, 36G6. GATES : across cartways; leaving open or injuring; penalty, 2694. leaving open or injuring, across public roads ; penalty. 3781. permission for, across highways, how secured, 2711. stock-law gate; injuring or leaving ojien. inisdenieanor. 3411. GENERAL ASSEMBLY: See Volume II. bills creating private corporations, etc., tax first paid, 1235. clerks and doorkeepers of; compensation of. 2730, 2732, 2734. compensalion of membcs of, 2729. copyists of bills of; compensation of, 2731. election of justices of the peace by, 1439. 1411. employees' account for compensation audited, 273.". member of ; accepting bribe, consequence. 3.570. names of persons can not be altered by. 2146. offering bribe to member of, felony, 3569. statutes, resolutions, etc.. read in evidence from ))rinted books, 1592. swearing falsely before committee of; perjury, 3611. witness refusing to testify before committee of, penalty, 3692. (ilOOLOCJICAL BOARD: Sec Volume II. <'()miiensation of members, 27."i7. 1276 INDEX. GIFTS : by will ; effect, 3143, 3144. certain parol ; of land to slaves, validated, when, 949. deeds of ; certain ones must be proven and registered, 896. evidence of fraud, when, 962. general, by will, includes what, 3143. religious societies take, how, 2672. GINHOUSE : burning of, wilfully and maliciously, a felony, 3341. GINSENG : digging, between certain dates : misdemeanor, 3714. taking from land of another, where fenced ; felony, 3502. GOVERNOR : See Volume II. appears and answers as to claims against state, when, 1538. Audubon society ; governor appoints treasurer and game wardens. 18()7. removes from office, when, 1867. commissioners of affidavits appointed by, 926. corporation commission's report printed by order of, 1117. death sentence ; execution of, ordered by, when, 3284. dredging for oysters suspended by, 2414. fills vacancy in office of eoi-poration commission, 1057.. fugitives from justice ; duty as to, 31S6-3189. See Fugitives from .Justice, gives permission for .judges to exchange courts, 1511. grants : signed by, 1729. 2378. seal to, lost, replaced by, 1740. justice of peace ; governor appoints, when, 1411. may suspend corporation commissioner, when, 1058. notaries public appointed by, 2347. oyster commissioner and assistant appointed by, 2403. removed by, 2403. railroad police appointed by, when, 2605, 2606. requisition of, made for railroad president, when, 3760. salary of, 2736. special term of court ordered by, 1512. county commissioners notified, 1513. judge to hold, appointed, 1511. state standard keeper appointed by, 3068. GOVERNOR'S EXECUTIVE CLERK: salary of, 2738. GOVERNOR'S PRIV.\TE SECRETAEY : See Volume II. salary and fees of, 2737. GRACE, DAYS OF : allowed when, and on what instruments, 2235. GRADE CROSSINGS : See Railroads. GRAND JURY : drawn how, 1969. duty of, to visit jail, workhouse, home, etc., 1972. to report condition of jail, etc., to court, 1972. examination on preliminary hearing used as evidence before, o'iO.'i. exceptions to jurors, when taken, 1970. foreman of, administers oaths, 1971. guardians' management of estates inquired into by. 1810. 1277 INDEX. GRxVND JURY— vcmtinued: iiidictmeut by, 3242-3255. See Indictment. names of witnesses examined indorsed on, 1971. returned in open court, liow, 3242. liquor dealers, list of, furnished to, 2827. list of cases disposed of by .iustiee, grand jury considers, 3261. none drawn at civil terms of court, 1508. oaths of, 2360. orphans ; list of, without guardian, reported by, ISIO. presentment by, 3240-3241. names of witnesses and gi-and jurors indorsed on. 3241. witnesses before, entitled to fees, when, 1302. GRANTS : as evidence; copies used, when, 1596-1601, 1610-1613. See Evidence, assignee of entry can obtain ; proviso, 1729. certain ; issued since JIarch 6, 1893, void, when, 1G99. are not color of title, 1699. issued on entries in wrong county, validated. 1737. claimant ; dying, to whom grant issued, 1730. failing to pay price, issued to another, 1733. repaid what he has paid, 1733. copy of, can be registered, 1729. can be used as evidence, 1596-1601, 1610-1613. See Evidence, correcting errors in, 1741, 1742. county line changed ; effect on, 1736. entries ; how made. 1707, 1708. action to sustain, barred when, 385. claimant produces signed description of land, 1707. enti-y-taker endorses and copies in book, 1708. entry-taker makes, for himself, how, 1711. in wrong county, valid when, 1737. irregular, validated, 1743. land subject to, what, 1693-1096. enti'y of land not subject to entry, void, 1G99. lapsed ; subsequent entry valid, 1710. same person can not enter for a year, 1712. notice of, posted for thirty days, where. 1708. advertised in newspaper, where, 1708. oyster beds, 2371-2378. payment of price for, when, 1731. amount, 1733. to whom, 1732. person already having erected wharves, 1G90. phosphate beds, 1751. protest to, filed where and by whom, 1709. procedure on filing, 1709. 1713. right to make, who has, 1692. subsequent entry may take what first entry does not, 1715. void ; unless paid for in certain time, 1731. warrant for survey of, issued how, 1713, 1714. entry-taker, appointment, etc., 1700-1706. See Entry-taker, duty of. to indorse, copy and advertise euti'y, 1708. to issue warrant for survey, when, 1713. warrant lost, duplicated, 1714. errors in ; corrected how ; procedure, 1741. notice to adverse claimants required, when, 1742. fisheries ; prior right to, in whom, 1698, 2400. person acquiring land for wharf may establish, 1697. issuance of; auditor's certificate of payment necessary, 1728. must be numbered and plot be attached. 1734, 1735. not allowed, when land not suliject to enti-j-, 1727. when, how, and to whom, 1729, 2596. 1278 INDEX. GRANTS — continued : none for lauds of board of education, when, 1727. oyster beds entered and granted bow, 2370-2382. payment of amount, 1733, 1690. to whom, 1732. within what time. 1731. phosphate beds granted, 1751-1757. See Phosphate Beds, plot attached to, 173-1. railroad right of way granted by state, when, 2596. registration of ; required in two years, 1729. number of survey included in, 2662. time for, extended, 1747. when county line changed, 1736. seal to, lost; how replaced, 1740. secretary of state issues, when, how and to whom, 1728, 1729. corrects grants, bow, 1738-1742. plots filed by, 1734. will not issue, when, 1727. surveys of entries, 1713-1721. chainbearers sworn, 1717. must actually measure land, 1717. surveyor administers oath to, 1717. county surveyor makes, 1716. may appoint deputies ; liable for their acts, 1720. special surveyor appointed, when, 1719. when county surveyor interested, who acts, 1721. errors in, corrected, how, 1738, 1739. made, how, 1716. warrants for surveys issued to surveyor, how, 1713. number of, to be placed in grant, 1735. order in which entries surveyed, 1715. plots of, made by county surveyor, 1710. errors in, how corrected, 1736, 1739. statute of limitation bars, when, 1738. made by special surveyor, good, when, 1719. ti'ansmitted to secretary of state, 1718. recorded : by former surveyor, when, 1725. in Boolv of Surveys, 1722. 1723. resurvey to correct errors ; allowed, when, 1739. warrant for, contains what, 1713. swamp lands defined, 1695. what may be entered, 1694. vacating ; action for, brought when, 1748, 1750. complaint states what, 1748, 1750. judgment, 1749. recorded in secretary of state's office, 1749. venue, 1748. validated ; when entry in wrong county, 1737. when entry irregular, 1743. issued prior to 1820, 1745. issued to surveyors prior to 1829, 1746. void, when, 1699, 1715. wharves ; entiy of land for ; regulations, 1696. person already having built, entitled to enter, 1696. price of land for, 1096. title to lands for, acquired ; fishery established, 1007. withheld by secretary of state, when, 1727. iGtRAVEYARDS : can not be condemned for railroad right of way, 2578. defacing or removing monuments, etc., in ; misdemeanor, 3680. must not be established near public water supply, 3053. 1279 IISTDEX. ( ; RAVEYARDS— continued ; oi>eniiig gnives witliout peruiissioii from proper Mutlioritv : iiiisdemeaiicr. 3672. removing enclosure to; misdemeanor, 3CS1. GROWING CROPS : See Crops. abandoned by tenant, after advanced : misdemeanor, when. SStWi. .S.'ifi". common fence inclosing, not removed till gathered, 3-112. decedent's personal property, 47. do not pass with dower, 47. exempt from sale under execution, G32. larceny of. 3503. GUARDIAN : accounting by ; annually, ISOo, 1808. compelled by attachment, 1806. vouchers filed as evidence, ISOo. final accoimt, filed when. 1807. within three months, 1802. compelled, how, 1803. accounts; record of, kept by clerk, 915 (12). actions by, to recover estate, 17S6. ad litem defends for infant defendant, 75, 40G, 1590. appointment; general, by clerk, 17GG, 17G7, 1770. 1771. 1800. 1S91. by parent, 1762. effect of, 1763. powers and liabilities of, 1704. in case of divorce, 1570, 1770. public guardian, 1758. though father alive, 1771. application for letters of guardianship ; clerk's duties, 1772. apprentice's ; appointment and duties, 189. assets of ward moved to another state, ISIG-ISIS. bond of. 323, 324. action on, 1779. barred, when, 393, 395. approval of, before receiving property, 1777. enlarged when real property sold, 323, 1778. form of, 1778. given by surety company, 273. cost of ; paid by estate, 277. letters not issued until given, 1778. mortgage in lieu of, 2G5. one given where ward's property in connnon. 1780. recorded in clerk's office, 1779. renewed, when, 324. 1781. renewal compelled, or removed, 1782. sureties relieved, how, 1776, 1783. clerk superior court; appoints, etc., 17GG, 17G7. 1770. 1771, 1772. accepts or declines resignation, 1776. approves bond, 1778. compels guardian to account. 1803, ISOG. fee for auditing account, 2773. for issuing letters, 2773. furnishes grand jury with list of guardians, 1810. keeps records of accounts of guardians, 915 (12, 13). liable; for taking insuffi<'ient bond, 1784. for negle<'t of duty as to estate, 1785. makes allowances whore guardianship dividetl. 1768. power over ward's estate, 1774, 1775. INDEX. GUARDIAN— c-on/i««e(Z; clerk superior court — continued. removes guardians, when, 1774, 1782. 1783, 1806. uotifies solicitor of removal ; action on bond, 1812. sales of property by guardian, duty as to, 1787, 1788, 1798. commissions of, 1769, 1809. corporate stock held by, voted on, how, 1185. costs adjudged against infants, paid by, when, 1276. cross-index of, kept by clerk, 915 (19). deposits in bank at risk of, 1793. dying ; representative of, pays moneys to clerk, 1794. education of ward, allowances for, 1768. embezzling funds or property of ward, punished, how. 3406. foreign ; how obtains ward's estate in this state, 1816. petition filed by, must show what, 1817. parties to proceeding, 1818. funds of ward ; invested in what, 1792. deposited at risk of guardian, 1793. grand jury inquires into management of, 1810. infants defend by, when, 75, 406. idiot's estate, guardian of. See Idiots, inebriate's estate, guardian of. See Inebriates, infants sue by, when, 405. insane person's estate ; guardian of. See Insane Persons, lands; rented how, by, 1788. leased by, 1789. sale by. See under this head. Sales, etc. letters of guardianship, 1773. liabilities of, 1764. for compound interest, 1953. costs, when, 1276, 1797. debts owing ward, when, 1795. land sold for ta.xes, when, 1796. natural guardian, who is, 1765. powers of courts not abridged by, 1765. owelty of partition paid by, when, 2497. plate and jeweli-y kept by, 1791. public, appointment of, 1758. bond of, 32, 322, 324, 265, 273. letters issued to whom, 1760. revoked, when, 1760. oath of, 1759. powers and duties, 1761. receiver ; appointed when guardian removed, 1813. new guardian appointed, what done, 1814. ward's remedy if no guardian appointed, 1814. record of appointment of. kept bv clerk, 915 (10). removal of, when, 1774, 1782, 1783, 1806. clerk notifies solicitor who brings action on bond, 1812. interlocutoi-y orders pending, 1775. resignation of ; permitted, when, 1776. sureties not released as to prior acts, 1776. return of, to clerk of assets, etc., made, when, 1804. rights of, in mortgage, survive to successor, 10.34. sales by : how made, 1788. approved and confirmed by judge, 1798. of perishable property, on clerk's order, 1787. of real property ; petition of guardian for, 1798. contains what, 1708. new bond required. 323, 1778. order of sale made, 1778. approval by judge required, 1798. Rev. ■\^ol. 1—77 1281 INDEX. GUARDIAN— cwi t ii}iic(l : sales by — continued. proceeds held on same trust as property. 1709. to pay ward's debts, when. 1800. proceeds assets for creditors, ISill. settlements; record of, kept by clerk, 915 (13). final, made when, 1807. solicitor prosecutes action against for ward, when, 1812, 1815. stock in corporation not fully paid, no liability attaching to, 1162. taxes on ward's lands must be paid by, 2802. takes charge of estate, 1780. timber trees sold by, how, 1790. title to railroad right of way secured from ward, how, 2590. year's allowance to ward paid guardian, when, 3094. HABEAS CORPUS, WRIT OF : , ad testificandum, 18.55-1801. See Witnesses, application for writ of, 1821-1820. by whom, 1821, 1823. contains what. 1825. must be made in writing. 1824. to whom addressed, 1824. children, custody of, determined by, when, 185.3, 1854. compensation of sheriff for producing prisoner, 2777. concealing party named in writ of : misdemeanor, 3583. costs adjudged, how, in proceedings for, 1208 (3). denied, when, 1822. disobeyed ; sheriff attached ; writ to coroner, 1836. precept to bring up party detained, 1837. form of. 1829. lack of, no ground for disobeying, 1829. granted, when. 1827. first writ disobeyed, another issued, 1837. refusal of .judge to grant ; penalty, 1828. when no application, 1826. hearing ; facts e.xamined into ; proofs heard sunnnarily, 184G. bail allowed, when, 1849, 18.50. determination may be in absence of prisoner. 1851. prisoner ; discharged when, 1847. remanded to prison, when, 1848, 1840, 18.50. judge : duty of, to issue without application, when, 1820. conniving at insuflii-ient return : penalty, 1839. refusal of, to grant ; penalty, 1828. to issue attachment for disobedience; penalty, 1S.'?5. precept to bring prisoner detained ; penalty, 1838. notice of place and time of hearing to adverse party, 1843. to solicitor, 1844. obedience to; compelled by attachment, 1834. attachment served how, when against sheriff, 1830. order of discharge, disobeyed : ]irocedure, 1841. party disobeying liable, 1841. obeyed ; party obeying not liable civilly. 1842. prisoner discharged ; iienalty for again imprisoning, 18.52. refusal of judge to grant: penalty. 1^28. to issue attachment for disobedienot ; penalty, 18.35. returnable, when, 1830. return of; 1830. contains what, 1831. officer making false; niisdonieanor, 3.5S2. making no return, eli'. : penalt.v, 3507. prisoner produced, when, 18.32. 1282 INDEX. HABEAS CORPUS, WKIT OV—continaed: right to; every person restrained of liberty has, 1819. 1821. .shall never be suspended, 1820. served, how, and by whom, 1833. power of the county to aid service, 1840. witnesses subpcenaed to testify at hearing, 184.5. HALF BLOOD: collateral relations of, inherit equally, 15.56 (r. 6). counted how, as to prohibited marriages. 2084. HANDWRITING : holograph will probated by proof of, how, 3113. probate of conveyance ; by proving maker's, when, 998. by proving witnesses" handwriting ; exception, 997. probates by proving, of maker refusing to acknowledge, validated, 1026. signatures must be in, 2831 (10). wills probated by proof of, of witnesses, when, 3127. holograph will probated by proof of testator's, how, 3113, 3127. HANGINGS : day for, in cases appealed, set by governor, 3284. must be private, 3285. \\itnesses, etc., number of, allowed present at, 3286. - HARBORING : seamen who have imlawfuUy deserted vessel, misdemeanor, 3550. servant who has left master unlawfully, misdemeanor, 3365. HARBORMASTER : interfering with, of Wilmington, misdemeanor. 3552. HEALTH: See Public Health; also. Volume II. HEIRS: adopted child an heir, when, 177. assign dower, when, 3087, 3088. bastard child legitimated, heir to father, 263, 264. commences new action, when, after ancestor nonsuited, 370. contribute to after-born child, 138-143. contribution between, and devisees, legatees, etc., 58, 86. conveyance by, in two years of letters granted ; effect, 70. conveyances deemed in fee, whether word "heirs" used or not, 946. de.vise deemed in fee without word "heir," when, 3138. entry by ancestor, grant made to, 1730. inherit ; by lineal descent, 1536. certain negro children born before .Jan., 1868, inherit bow, 1556 (r. 13). collateral heirs inherit when no lineal, 1.5.56 (rr. 4, 5). females inherit with males, 1.556 (r. 2). from illegitimate children, 1556 (r. 10). half blood inherit equally with whole blood, 15.56 (r. 6). illegitimate children inherit from mother, 1556 (r. 9). legitimated, inherit from father, 264. lineal descendants represent ancestor, 1556 (r. 3). parent inherits from child, 15.56 (rr. 6, 10). unborn children inherit how, 1556 (r. 7). widow inherits from husband, when, 1556 (r. 8). liable for debts of decedent. 52-58. limitations to. of living person, consti'ued, how, 1.583. parties to proceeding to sell land for assets, 74. 1283 INDEX. HIGHWAYS : right of way over ; granted to telegraph, etc., companies, 1571. p-antect to gas and electric lighting companies, 1133. sti-eets. See Streets. roads, cartways, etc. See Roads. HINSDALE ACT : demurrer to evidence : sustained ; appeal, etc., 539. overruled; e.xcoption waived; evidence introduced, 539. HOGS : dead of contagious diseases, bodies buried or burned, 329S. earmark of, registered, 3028. failing to pen, sick with cholera, misdemeanor, 3297. falsely representing pedigree of breeding; misdemeanor, 3307. quarantine of those with contagious diseases, 3297. selling, knowing to have infectious disease ; misdemeanor, 3295. stray ; how taken uj), etc., 2S33. taxed by towns, 2924. HOLIDAYS: See Sunday. acts to be done on, when may be done, 2839. dates of public, 2838. negotiable instruments due on, paid when. 2234. HOME FOR AGED AND INFIRM : county commissioners provide for maintenance of, 1318 (14), 1327. county poor maintained, 1328. See County Poor. grand jury must visit, 1972. how county home and county poor supported, 1329. removal of; how accomplished, 1318 (6, 28), 1319. site of; designated how and by whom, 1318 (fi. 28), 1319. HOMESTEAD : allotment of ; after death of homesteader, when, 707. keeps judgments alive, 685. on execution, 687-694. appraisers ; duty of, 688. conspiring with debtor or creditor, liable civilly, 690. liable criminally, 3585-3586. fees of, 69G. oath of, administered by sheriff, 687. property selected for homestead, 688, 693, 700. return of, 689, 709 (1). copy to county of execution, 689. filed and registered, 689. made to whom, 689. original, or copy of, evidence, 689. set aside for fraud, when, 702. sheriff summons, 687. in land held in common, how, 2489. on petition of owner, 704, 700 (2). advertisement of notice of, 705. hearing on petition, when, 705. return excepted to ; procedure, 706. conveyed ; not exempt from execution, 686. costs ; of allotting on petition of owner. 1274. of allotting under execution, 696, 1274. 1275. INDEX. HOMESTEAD— con38. tried by whom, 527. .528. when, 48-1. u28, 5.33, 547. verdict as to, 550-553. See Verdict, Civil .Vctiou. waiver of ti-ial of, how, 540. ISSUES OF LAW: arising before clerk ; appeal to judge, 114, GIO. appeal taken when, and by whom, Cll. clerk sends statement of case to judge, 612. judge's duty as to appeal, 613. appeal from judge to supreme court, 587, 588. defined, 544, 545. tried bv whom, 527, 613. when, 533, 547. JAIL: See County Prison. bedding furnished by county, 1338. bounds of. established by county commissioners, 1339. bond of pri.soner to keep, 1339-1341. who entitled to take, 1942. breaking of, prevented how, 2825. built and maintained, how, 1335. county commissioners failing to heat ; misdemeanor, 3574. divided into five apartments, 13.36. grand juries to visit, and report, 1972. . none; jail of adjoining county used, 1349, 1350. prisoners in. See Prisoner. removal of. how accomplished, 1318 (6, 28). 1319. site of new. designated by commissioners, when, 1318 (6. 28), 1319. unsafe, or destroyed, prisoners committed to another county, 1350. JAILER : allowance to, for care of prisoners, 2799. for care of United States prisoners, 1342. allowing prisoner to escape ; penalty. 2822, 3231. apprehending danger of prisoner escaping ; duty. 1.345. confining prisoner in inipi-oper apartments ; misdemeanor, 3660. creditor liable to for fees, when, 19.38. duty of: to care for comfort of prisoners, 1343. to cleanse jail daily, 1.343. furnish prisoners with food and drink, 1343. injuring prisoner: misdemeanor. 3661. liable ; for escape of prisoner from another county, when, 1349. for refusing to accept United States prisoner, 1342. safe-keeping of prisoner. 2822, 3231. must receive prisoner ; bound to keep safely, 3231. prisoners, generally. See Prisoner. refusing to obey commitment of prisoner from another county not having jail ; misdemeanor, .360.3. JEWELRY : guardian must kccji. .md delivor at ward's coming of age, 1791. innkeeper liable for guest's loss of, wlicn. 1911. 1 INDEX. JIM-CROW CAR LAW : railroads ; must furnish separate apartment for the races, 2619. certain, exempted from requirements. 2620. penalty for failure to furnish separate apartments, 2022. when races can be placed in same coach, 2021. JOINT TENANTS : See Tenant In Common. limitations, statute of, barring one, does not bar all, 374. pay their portion or all of taxes, 2857. personal representatives are, 100. survivorship of; does not obtain, 1579. does obtain as to partnerships, etc., 1579. as to trustees, etc., 1580. JUDGE, SUPERIOR COURT: absent on first day of court, duty of sheriff, 1510. not attending fourth day, sheriff adjourns court, 1510. courts e.xehanged by, under certain restrictions, 1511. duties as to estate of infants, etc. See Guardian ; Infants, duties as to ti'ial. etc. See Civil Procedure, holds court in the different counties in rotation, 1509. oaths of office taken by, filed, where, 1497, 2357, 2358, 2300. power of, to discharge drunken solicitor, 1499. salary of, 2765, 2706. special terms held by, without extra pay ; expenses paid, 1512, 1514. vacancy in otflce of, how filled, 1498. JUDGE, SUPREME COURT: See Justices, Supreme Court. JUDGMENT : action on, barred, when. 391, 392. defendant may plead satisfaction, when, 1522. after-born child does not affect, against decedent's estate, 142. against attorney for not paying to client money collected, 212. appeal from, 583-013. 1489, 1495. See Appeal, Civil Action. does not stay execution, 598. appearance by one administrator, entered against all, 101. approved, when required, by what .ludge, 571. arbitration and award docketed as, 1073. attachment, 784. betterments claimed, judgment rendered how, 657. chapter on, applicable to justices' courts, 562. claim and delivery of personal property, 570. tlerk enters, according to verdict, when, 554, 1955, 1956. clerk's, when administration account shows assets, 118, 119, 122-125. condemning land for right of way of railroad, 2586, 2587, 2589. conditional, against garnishee in attachment, 780, 783. confessed, 580-582. See Confession of Judgment, confession of. to secure fine and cost, 1293. contested election; defendant failing to give bond, 837. controvers.v without action, 803-80.5. See Controversy Without Action. conveyance of real estate adjudged, when, 566, 567. copy of. evidence when. 569. corporate franchise forfeited, 1209, 1210. corporation commission's; affirmed on appeal, enforced, how. 1080. approved by superior court, effect of. on rates, 1079. on petition of railroad for relief from speed ordinance. 1102. corporation ; dissolution of, adjudged finally, 1207. copy of judgment filed In secretar.v of state's office, 1211. costs ; judgment as to, on appeal, 1279-1282. See Costs. what it covers, 1249. 1295 II^DEX. JUDGiMENT— co/i. legal title, with covenants, jiassed by, when, 506. INDEX. JUDGMENT— eoii78. federal office may be held by, 1415. fees of, 2m, 2788. forfeits office by remo^•al from township, 1412. habeas corpus, ad testificandum ; justice may issue, 185G. jurisdiction, etc., of. See Courts, Justices', liability of; none for endorsing fraudulent warrant, 3161. penalty for not returning recognizance, etc., to court, 320(3. list of, sent to secretary of state by clerk, OIG. malpractice of, in ofhce ; removed therefrom, 1414. marrying white and negro person ; misdemeanor, 3370. may hold more than one office. 23G4. meetings of, witli county commissioners, in certain counties, 1313. register of deeds acts as clerk to, 1313. number of, for each township, 1409. oath of, subscribed before clerk, 1411, 2357, 2358, 23(50. penalty ; for failing to pay over certain moneys, 1.383. for failing to return papers, etc., to superior coin-t, 3206. failing to settle on notice from finance committee, 1392. perform marriage ceremony. 2081. practicing law ; justice disqualified for, 210. in state courts ; misdemeanor, .3041. probate of conveyances by. 989. See Probate, qualifies, when and how, 1411. clerk's fee for qualifying, 2773. record of, kept by clerk, 915 (15, 16), refusing itemized bill of costs when demanded ; misdemeanor, 3588. removal of. from office for infamous crime or malpractice. 1414. removing from township forfeits office. 1412. resignation of, how filed. 1413. swearing falsely to .statement required by law; misdemeanor, .3(i05. term expiring, must return dockets, etc., to clerk, 1418. trial before. See Courts, Justices', vacancy in office of, filled how, 1411. widow's year's support, assigned by, 3096. JUSTICE'S COURT : See Courts, Justices'. JUSTICES, SUPREME COURT: allowance for clerk to. 27(>4. may issue writ of habeas corpus, 1824, 1826. number of, 15.32. oath of office taken and subscribed before whom, 1533, 2.'!57. '23.58, 23(50. quorum of, for transaction of busines.s, 1534. salary of, 2764. supreme court; jurisdiction, etc., as. See Court, Supreme. tal;o bail, when, 3200, 3210. INDEX. KEEPER OF ARSENAL: salary of, 2806. • KEEPER OF CAPITOL: See Volume 11. ex officio standard lieoper, when, 306S. power of, to arrest disorderly persons around state buildings, 3742. to arrest persons injuring buildings, etc., 3742. reports trespass upon public gi-ounds to whom, 8745. salary of, 2806. KIDNAPPING : person forciljly or fraudulently ; felony, 3634. LABEL: See Trademarks. LABOR : See Volume II. children under 12 not allowed to be employed in factories, 3362. hours of children under 18 regidated in factories, 3363. LAND : See Real Property. LANDLORD AND TENANT : advancements by landlord ; effect of tenant abandoning, 3366, 3367. landlord failing to make, as agreed; nii.sdemeanor, 3366, 3367, agreement by tenant to repair construed, how, 1985. agricultural tenancies, 1993-2000. chapter on, applicable to leases of turpentine trees, etc., 1999. applicable to mining and timber leases, when, 2000. contract between ; violated ; consequences, certain comities, 3366, 3367. certain ones must be in writing, 976. controversy between, as to contract and crop, 1995. appeal from .iustice to superior court, 1995. tenant failing to give undertaking on; effect, 1996. neither landlord nor tenant giving, crops sold, 1997. crops ; deemed vested in landlord until when, 1993. landlord's remedy to enforce lieu on, 1993. remedy when landlord unlawfully holds, 1994. tenant's, not subject to execution for landlord's debts, 1998. ejectment of tenant by landlord, 2001-2011. appeal from justice's judgment in, 2008, 2011. undertaking to stay execution, 2008. kept good or appeal of tenant dismissed, 2008. complaint of landlord to secure summons, 2002. contains what ; verification, 2002, 2011. damages estimated in judgment, how, 2005, 2006. demand for rent not necessary, when, 198.3. evidence of amount of rent, when no contract, 1986. execution to enforce judgment in, 2005, 2011. stayed on appeal, how, 2008, 2011. forms used in action of, 2011. for what causes. 2001. judgment; by default or confession, 2004. on verdict, 2005, 2006. reversed on appeal ; restitution made, 2009. justice makes certain docket entries, 2011. possession of tenant, possession of landlord, 387. proceedings stayed by tenant's tender of rent and cost, 2007. restitution made when judgment for tenant on appeal, 2009. summons issued on verified complaint, 2002, 2011. equivalent to a demand for rent, when, 1983. service of, how made, 2003, 2011. 1301 INDEX. LANDLORD AND TENANT— eofUuiuerf; ejectment of tenant by landlord — contiiiueil. tenant entitled to damages for wrongful removal, 2010. trial ; defendant making denial forces, 2005. eitlier party may demand jury, 2005. verdict for landlord ; judgment, 2005, 200G. when action can be sustained, 2001. grantees of reversion ; rights of, as to tenants, 1989. landlord seizing tenant's crop wLen notbing due; misdemeanor, 36G4. lien of landlord on tenant's crop, 1993. liens on crops for advances, enforced, bow, 2052-2057. See Lien, notice to tenant to quit, time of. 1984. relation of lessor and lessee, 1982. rent ; apportioned bow, when estate terminated by death, 1987, 1988, 1990. not stated in contract ; what recovered, 198G. pavment when premises surrendered for destruction of house, etc., 1992. tenant ; abandoning crops after advanced ; misdemeanor, 330G, 33G7. crop of. See under this bead. Crops, etc. ejected, when, 2001. See under this head. Ejectment, etc. emploving, after abandoning crop when advanced ; misdemeanor, 33G6, 3367. failing to perform contract, certain counties, ejected, 2001. forfeiture by, without demand of rent, when. 1983. holds, how, when lease determines by uncertain event, 1990. may surrender premises when building destroyed, etc., 1992. not liable for accidental damage, 1991. party to action against landlord, when, 410. remo\'ing crops without paying landlord ; misdemeanor. 36G5. rights of. as against grantees of reversion. 1989. surrendering possession to other than landlord ; misdemeanor, 3G82. undertakings in controversy between, 1995-1997, 2008. LANDMARKS : wilfully altering or removing, misdemeanor, 3G74. LARCENY : bank-notes subject of ; indictment, 3251. branded timber ; person taking away, secreting, etc. ; misdemeanor, 3853. ehoses in action, subject of, 3498, 3499. court records, etc., taken for fraudulent purposes ; misdemeanor. 3508. distinction between grand and petit, abolished, 3500. dogs listed for taxes, subject of. 3501. felonious injury to stock for purpose of conversion, etc., is, 3504. fish from fish-nets, 24T8. ginseng ; taking, from land of another where fenced, 3502. horse, mare, gelding or mule, subject of, 3.'i05, 3509. indictment barred when accused tried for false pretense, 3432. indictment for larceny and receiving; substance of, 3251. 32.53. insui'ance agent embezzling funds of company, guilty of. 3487. oysters from private beds, 2401. person destroying or erasing timber-marks feloniously ; niisdeineanor, 3855. punishment for, 3500, 3500. receiving goods knowing to have been stolen, punishable as, 3507. ride on horse can be subject of. 35fi9. servant converting goods, etc.. trusted with by master, 3499. stolen properly retiu'ned to owner upon conviction, 31.5.3. venue in action for receiving, 3.507. will, codicil or other instrument, subject of, 3510. wood on land of another, when taking of, is larceny, 3511. . INDEX. LAW: common, in force, 932. issues of. See Issues of Law. of other states, how proven, 1594. this state, 1592, 1593. LAWFUL FENCE : what is, 1G60-1G63. See Fences ; Stoclc Law. LAW MERCHANT: applicable to negotiable instruments, 23-t4. LAWYER : See Attorney at Law. LEASE : agreement in, to repair, how construed, 1985. contracts for, of land ; must be in writing, 976. married woman's, executed and proven, how, 2096. registration of, necessary, 979, 980. determiuiug ou uncertain event ; effect, 1987, 1990. mining ; construed and enforced, '2000. timber ; construed and enforced, 2000. turpentine and lightwood leases, construed and enforced, 1999. LEGACIES : See Wills. .abatement of, to provide for after-born child, 1.30, 141. action for, after two years from letters granted, 144. children legatees dying ; issue of, inherit, when, 3144. due absent legatee, paid into court, when, 151. legatees liable for decedent's debts, when, 52-58. ordered paid before two years, when, 155. LEGISLATIVE DEP.VRTMENT : See General Assembly; also Volume II. LETTERS : of administration. See Administration. guardianship. See Guardian, wrongfully opening or publishing contents, misdemeanor, 3728. LEWD WOMEN : committing lewdness with or in presence of student ; misdemeanor, 3353. prosecution must be in six months, 3353. student may give testimony, 3353. LIABILITY, STATUTORY: See Statutory Liability. LIBEL: action against newspaper for ; notice required, 2012. damages recovered in ; what, 2013. anonymous communications and publications amounting to, 2014. burden of proof in action for, 501. communicating to newspaper which publishes it; misdemeanor, 3635. complaint in action for, 501. costs in civil action for damages for, 1264 (4), 1266. defendant allowed to give in evidence mitigating circumstances, 502. limitations, statute of. bars action for, 397. slander. See Slander, truth of, a defense to action for, 3267. INDEX. LICENSE : See Volume II. attorney at law .■secures, liow, 207-210. auctioneers, 217. county commissioners issiie, when, 1318 (18, 20). dealing in oysters without. 2395. embalming without ; misdemeauor, 3G44. fishermen must have, when. 2459. hunters, nonresident, must have, 1872, 1874, 1878-1880. lev.v and sale to collect. 2870. liquor. •2(i(i'_'-2(itiS. See Liquors. makintr f;ilse statement to ohtnin, 2.300. marriM;;o, 2(iS(i-2(i!)2. See Marriage. municiiiality grants, 2024. oysternien must have, 2372. 2373, 2386, 2387, 2408-2412. See Oysters. must exhibit, when, 23S9. practicing dentistry without ; misdemeanor, 3G42, 3C43. medicine without ; mi.sdenieanor. 364.">. pharmacy without ; misdemeanor, 3C48, 3649. trade or profession without, 2877. sheriff's duty to warrant delinquents. 2877. trained nurse without; misdemeanor, 3656. selling liquor without, 2062-2008. See Liquors, stevedores must have, 2050, 2051. tax ; person failing to pay ; misdemeanor. 3787. LIEN : agricultural ; landlord's has priority, 1993. person advancing cropper has lien, if in writing, 2052. lien enforced how ; trial. 20.54. short form for lien, 2055. tenant failing to cultivate crop ; remedy, 2056. trustors and mortgagors bound by law of, 2053. architect's list of indebtedness furnished owner before being paid. 2021. attachment a lien on propert.v. when. 767. 771. betterments ; .ludgment for, a lien on land bettered, 058. colts and calves ; lien on. for season, 2024. not exempt from execution to satisfy lien, 2025. person claiming lien barred, when, to enforce, 2025. contractor's list of indebtedness furnished owner before being paid, 2021. failing to furnish ; misdemeanor, 366.3. contractor swearing falsely to dcfra\ul laborer, punished, how, 3613. corporation insolvent, laborers have first, 1206. defendant allowed what as set-off or counterclaim. 2032. discharged, bow, 2033. docket of, kept by clerk, 915 (21). employer attempting to remove property to defraud of ; remedy, 2031. execution to enforce. 2029. .lustice's, can not he enforced on land : jiroviso, "20.30. form of, for advances to make crops, 2055. innkeepers have, when, on baggage, 2037. enforced b.v sale, when and how, 2038. notice of sale, 20.39. judgment, docketed, a lien, 574, 1479. See Judgment, laborers have, when, on buildings, etc.. 2016. 2019. 2041. claim of laborers enforced against railroad constructor, 2018. notice of claim by laborer to owner: effect. 2020, 2021. land sold for taxes, purchaser has lien. 2011. foreclosure of lien. "2912. lis pendens a lien. 460-464. See Lis Pendens, material men have. when, on buildings, etc.. 2016. notice (if cliiiiii by iii;il3. person imprisoned, 302. persons out of state, 300. persons inider cine or more disabilities, 364. in favor of undisclosed partner, when, 373. claim and delivery, action barred, when. 395. claims against cities and towns, barred, when, 396. against county, barred, when, 396. contested election ; action barred, when. 391, 395. contracts, action on, barred, when, .391, 395. contribution ; action for. by devisee, etc., barred, 58. corporate charter annulled for nonuser for two years, 1198. corporation ; claim again.st, for tort, barred in certain cases, 1130. corporation directors, wrongly declaring dividends ; action against, barred. when, 1192. co-tenants ; part of. may be barred, part not, 374. county claims ; action on, barred in two years, 390. creditor barred from suing personal representative. 392 (2). criminal conversation; action for, barred, when. 395 (5). decedent's estate ; claims against, barred, when. 41, 93, 367. claims in favor of, barred, when, 307. deed in trust; action for residuary interest in. 391 (4). disabilities ; cumulative, 304. must exist when right of action accrues, 365. persons under, not barred, when, 362. does not run against infants, insane persons, etc., when, 362. entries of land ; statute makes void, when, 1731. false imprisonment ; action for, barred, when, 397. fees; action by officer to collect, barred, when, 395 (8). fraud or mistake; action for relief, barred, when, 395 (9). guardian bond ; action barred, when, 393. homestead allotted ; judgment against homesteader not barred by, 085. Infants not affected by, 362. judgment ; action upon, barred, when, 391, 392. against nonresident on substituted service of summons, defendant has how long to defend, 449. docketed, lien for what time, 574-570. See Judgment. never barred when homestead allotted. 685. order set aside for mistake, etc., in what time. 51.3. laborer's action against railroad for construction, barred, when, 2018. libel ; action for, barred, when. 397. liens ; action to enforce, barred, when, 20.33. mills; time in which owner allowed to build. 2129. 21.30. misdemeanors ; criminal action for, barred, when, 3147. mortgage; action for redemption of, barred, when, 391 (3). foreclosure of, barred, 391 (3). 1044. new promise to pay, effect of, on, 371. nonsuit ; action after, brought, when. 370. official bond ; action on, barred, when, .393. order or decree; action on, bnrrefl, when. 391. personal property; action for taking, detaining, etc.. barred, 39.5. personal representative ; action against, barred, when, 41, 93, 94, .307, .392 ( 21 . barred from proving book nccomit, wlien. 1623. persons under disability. 362, 363. pleaded ; by answer, 300. by insane part)', deemed, .361. i;!(i6 INDEX. LIMITATIONS, STATUTE OF— continued : possession for twenty years without color, barred, 384. power of sale in mortgage or trust deed for creditors, barred, when, 1044. prisoner escaping, action for, barred, when, 397 (4). quo warranto, to try title to office, barred, when, 834. railroad construction ; action for damages caused by, baiTed, 394. railroad violating rules of corporation commission to injury of person, action for, barred, when, 1091. right of way ; title to, never acquired by, 388. real property ; actions concerning, barred, when. 380-389. bought at tax sale, recovery barred, when, 395 (10), 2909. entry of, must be followed by action, when, 38.5. possession of ; bars state from suing, when, 380, 381. bars individual from suing, when, 382, 384. under color of title, bars action, when, 380, 382. within twenty years before bringing action necessary, 383. redemption of, sold at tax sale. baiTed, when, 2913. trespass on; action for, barred, when, 39.5 (3). sealed instrument, action on, barred, 391 (2). shipper's application to corporation commission for refunding of over- charge recovered from railroad ; barred, when, 1085. slander ; action for, barred, when, 398. statutory liability ; action on, barred, 395. streets and highways ; title to, never acquired b.v, 389. sureties on fiduciary bonds; action against, barred, when, 395T6). surveys and plots ; action to correct errors in, barred, when, 1738. taxes, land sold for; action to recover, barred, 395 (10), 2909. foreclosure of lien for, barred, 2912. time not counted, 368, 369, 379. tort ; action for, barred, when, 395. trespass under color of office, action on, barred, 397. university ; action against, for money paid by personal representative. barred, 153. usury; action for penalty for, ban-ed, when, 396 (2). widow's year's-allowance; action for, 397 (5). wrongful death ; action for, barred, when, 59. LIMITED PARTNERSHIP : formed how ; liabilities attaching, 2521-2539. See Partnership. LIQUORS: adulteration of ; may be made by physicians, etc., 3513. selling, knowing to be adulterated, misdemeanor, 3512. selling recipe for, felony, 3513. anti-jug law, 2080, 3518. counties to which it applies, 2080. does not prohibit shipping to licensed dealers, 2080. effect on bitters and alcoholic medicines, 2080. effect on di-uggists, 2080. bitters, alcoholic ; effect of anti-jug law on, 2080. brandy, wine, cider ; manufacture and sale allowed, when, 2061. certain contracts concerning sale of, must be written. 977. county commissioners; power of, to license sale of, 1318 (18), 2059, 2064. "dealer in intoxicating drinks" construed. 3524. delivery of, permit led to druggists, etc., in prohibited territoiy. 2080. dispensary; estalilisliment. management, etc., 2074-2078. See Dispensaries, druggists; failing to keep record of sale; misdemeanor, 3516. licensed to sell. when. 2063. refilling prescription without written order, misdemeanor, .3519. selling except on physician's prescription, misdemeanor, 3519. INDEX. LIQUORS— cwj«fn«fc(7 ; elections to determine manner of controlling traffic. 2009-2073. See Elec- tions, evidence prima facie of making or dealing in. \ylien, 2000. gambling allowed in bouses wbere sold : misdemeanor, 371C. person convicted forfeits license. 3710. giving away, at election ; offender gnilty of misdemeanor. 3389. grand jury furuisbed witb list of dealers in, 2827. illicit shops, officers must subpa-na witnesses to discover, 3721. "incorporated town of 1000 people" detined under tbe Ward Law, 2058. intoxicated person entering train, etc.. after forbidden ; misdemeanor, 3757. "intoxicating liquors" defined under anti-jug law. 2080. license from United States evidence of manufacture, etc.. wben, 2060. license to sell ; necessary, wben, 2002. application for license contains wbat, 2004. form of license. 2006. bearing of application ; procedure, 2005. issuance of license ; tax. etc., 2066. posted in place of business, 2007. procedure to bave license revoked, 2068. list of dealers in, furuisbed grand .jury, 2827. local option elections, 2009-2073. See Elections, manufacturing and rectifying of: allowed, wbere. 2058, 2059. allowed in town of 1000 people with two policemen, 2058, 2059. brandy; allowed, wben, 2001. cider, etc., allowed, wben, 3521. duty of police where allowed, 2059. report of police goes to solicitor, 2059. prohibited in certain territory. 2058. 3521. town not complying witb requirements, license revoked, 2059. wine from fruit allowed, when. 2001. minor child being sold : seller liable to parent, when, .3525. officer's duty when informed of illicit still. 3533, 3534. required to seize still, etc., when, 3533. permitting manufacture of, on one's premises; misdemeanor, 35.33. physicians giving prescription for, except for sickness ; misdemeanor, 3527. "place of sale" of, defined, 2080. poisonous ; manufacture and sale of, felony, 3522. prima facie evidence of, wben, 3522. public drunkenness in certain counties ; misdemeanor, 3733. sale of brand.v. cider, wine allowed, when, 2002. sale of, place of. 2080. seizure of still, etc., required, when. .3533. turned over to United States officers, 3533. selling ; in incorporated city without license : misdemeanor, 3529. in prohiliitinn territory: niisdonieanor. 3518. towns liaviiig ilisjicnsary : misdemeanor, .3.531. on Sunda.v ; mi.sdemoanor. 'AXV2. or giving away: near political speaking; misdemeanor. .3.528. to inmate of asylum or penitontiar.v ; misdemeanor. 3517. outside of incorimrated town ; misdemeanor, 3.530. to minoi's ; niisdomoanor. 3.524. solicitor's duty, when snsi)Octing illicit sale or mannf.achu-e. .3.53-1. towns may tax dealers in. 2924. trainmen intoxicated on duty, misdemeanor. 37.58. United States license as evidence against offender, wben. 2000. unlawfuU.v jirocuring. for .-inotber. misdemeanor, 3.5.34. wine: sale of. .Mllowod. when. "2062. .selling, in unl.iwfid manner, misdemeanor. .3.5.3.5. seller of. allowing drunkenness on ]ir(Mnises ; misdemeanor. 3.535. INDEX. LIS PENDENS: Buncombe county : requiremeuts in. as to notice of, 4G4. notice of ; filed wliere and wlien, 4G0. cancelled, when and how, 403. effect of, on subsequent purchasers, 402. ineffectual unless action prosecuted in sixty days. 461. LIVE STOCK: l)rand lor cattle; owner of, must register, 3028. See Trademarks, cattle, driven in stock-law territory; crops injured, 3321. action for, barred, when, 3321. defined, 1681. driving another's, out of range, misdemeanor, 3314. indictment for, need not name owner, 3314. dying of contagious disease; owner failing to bury, misdemeanor, 3298. glanders or farcy, stock diseased with : not killing, misdemeanor, 3296. horses ; entering for races, out of class, misdemeanor, 3429. exhibiting stud. etc.. near religious meeting; misdemeanor, 3705. larceny of, 3.50.5, 3.509. Injury to ; in enclosure without lawful fence, misdemeanor, 3313. feloniously, for fraudulent purposes ; misdemeanor, 3.504. running in the range, misdemeanor, 3314. killed by railroad, negligence presumed, 264.5. killing in the range and not showing ears, etc. ; misdemeanor, 3315. uiismarking for fraudulent purposes, felony, 3317. owner failing to pen hog with cholera, after notice, 3297. pedigi'ee of breeding animal ; false representation of. 3307. poisoning, by leaving shrubs exposed. 3318. quarantine laws concerning. See Quarantine, railroads failing to construct cattle-guards ; misdemeanor, 3753. registration of, procured fraudulently ; misdemeanor. 3308. running at large. See Stock Law. selling, knowing to have contagious disease ; misdemeanor, 329.5. shipping, on Scuppernong river, illegally. 3675. stallion, etc., allowing to run at large ; misdemeanor, 3.323. stoclv law ; violating. See Stock Law. strays ; person not complying with law of ; misdemeanor, 3306. toling, into stock-law territory ; misdemeanor, 3309. towns may levy tax on, 2924. transported across quarantine line; misdemeanor, 3294. turning, out of stock-law territory ; misdemeanor, 3322. LOCAL OPTION : elections concerning regulation of liquor traffic. See Elections. selling liquors in local option territory, misdemeanor, 3518, 3519. LOST DEEDS AND WILLS : See Burnt and Lost Records ; Evidence. LOST RECORDS : See Burnt and Lost Records ; Evidence. LOTTERIES : advertising ; misdemeanor, 3725. buying or selling tickets, or stock in, or aiding, misdemeanor, 3727. conducting, or aiding in any way, misdemeanor, 3726. raffling off houses or other property ; misdemeanor, 3726. LUNATICS : See Insane Persons. INDEX. LYNCHING : tost of Investigation, and trial of lyneliers ; who pays, 12S8. entering or conspiring to enter jail to kill prisoner, felony, 3698. investigation of ; by solicitor, 32U0. person probably guilty bound over to court, 3200. participants in; must testify, 3201. not excused on ground of self-incrimination. 1038, 3201. testifying for state, pardoned of the offense, 1038, 3201. sheriff's duty to prevent, 2S25. venue of criminal action for, 3233. witness failing to attend and testify as to, misdemeanor, .3099. Mcculloch : evidence necessary to support title under, 1600. grant, or certified co]iy, from, sufficient evidence, when, 1001. MAGISTRATE : See Justice of the Peace. disabling another's body : without malice aforethought, 3020. with malice aforethought, 3627, 3636. MAINTENANCE : bastard child ; execution against the father for, 261. bastardy proceedings ; decree in, for, 255. MALICIOUS INJURY: to gas plant, fixtures, pipe lines, etc., misdemeanor, 3071. offender liable to forfeiture, 3071. jjersonal property, 3676. real property, 3677. MALICIOUS PROSECUTION: cost in action for damages for. allowed to whom, 1204 (-t), 1266. MALPRACTICE : justice of the. peace guilty of, removed from ofliee, 1414. MANDAMUS : application for writ of, made, how, 822, 823. contested election ; judgment in, enforced by writ of. 841. corporation commission; judgments and orders enforced by, 1080, 1081. plaintiff seeking other than judgment for money ; hearing, when, 824. MANSLAUGHTER: See Murder and Manslaughter. MARL BEDS : failure to inclose ; misdemeanor, 3796. MAItRIAGE : bar to prosecution for seduction, 3354. bigamy ; defense to, that husband or wife not heard from in seven years, .3301. ceremony of, performed by whom, and how, 20S1. consanguinity prevents, when, 2084. contracts relating to, must be jiroved and registered, 985. declared void, when, 1560, 2083. defined, 2081. degrees of kinship ascertained, how, as to, 2084. dissolved. See Divorce. 1310 INDEX. .\ [ A I ; RI AGE — con t in tied : (■vidence ; husband or wife competent to prove marriage, when, 1630. license for ; fee of register for issuing, 2776. form of, 2(189. issued by register of deeds, when, 2088. unlawfully issued, penalty on register, 2090. not necessary to make marriage valid, 2081. original, filed by register, when, 2091. record of, kept by register ; form, 2091. register of deeds unlawfully issuing, penalty, 2090, 3370. failing to make proper records, penalty, 2092. return of, required under penalty, 2087, 2089. secured by false pretense ; misdemeanor, 3371. minister, performing ceremony without license ; misdemeanor, 2087, 3372. failing to return license to register in time, penalty, 2087. forfeits $200 to any person suing, 2087. person marrying female under foiu'teen years of age ; misdemeanor, 3368. settlement in consideration of, must be proved and registered, 985. slaves ; marriage of, validated, when, 2085. A-oid, when ; proviso, 1560, 2083. what constitutes, 2081. white person marrying negro ; marriage void, 2083, 3369. guilty of miscegenation, 3369. who may marry, 2082. who may not marry, 2083, 2084. - - - - will revoked by, when, 3116. MAIiKIAGE SETTLEMENTS: contracts or conveyances as, must be registered, 985. void as to existing creditors, 963. MARRIED WOMAN: abandoned by husband ; effect on rights, 2117. may get alimony pendente lite without notice, 1566. when lunatic ; allowance made, 1895. abduction of, felony, when, 3360. woman's testimony alone suflicient, 3360. ad\erse possession not counted against, except prior to Feb. 13, 1899, 303. alimony. See Alimony, ante-nuptial debts of, liable for, 2101. husband not liable for, 2103, 2106. attempt to carnally know, by personating husband, felony, 3625. bank checks may be drawn by, 2095. canially knowing by personating husband, felony, 3624. contracts of, must be with husband's written consent ; exceptions, 2094- 2096. with husband ; void, when, 2107. valid, when, 2108. conveyances by, 9.52-958, 2096, 2097, 3086. ' probate of, 1003, 1004. corporate stock held by. voted, how, 1185. death of, presumed after seven years absence and not heard from, 3361. deemed free trader, when, 2116-2118. deposit by, in bank, 2095. doing business in husband's name ; requirements, 2118. dower ; generally, 3083-3090. See Dower. may be released by, how, 2108. elopement of, with adulterer, effect, 8, 2110. execution against separate estate of, 617. executrix ; husband gives bond, 28. IXDEX. MARRIED WO JI AX— co» i in iieil : feloniously slaying husband ; effect, 7. free trader; becomes how and when, 2tl'J-211S. See Free Trader. husband of ; rights, etc. See Husband. deed of, without wife, good, when, 059, 308."). joined with wife as party, when, 4H8. may defend actions against wife, 21u3. consequences, if dune in bad faith, 2104. interest of, in husband's estate, 3, 4, T-9, 132. interest barred. 7, S, ii. 21ij9, 2110. judgment against; how rendcre46. harboring servant who ludawfuUy left master; misdemeanor. :VM'>. hiring Servant under contract with another; misdenicanor. 3374. servant converting master's goods; larceny, 3499. embezzling property of master, 3400. INDEX. MAYOR : chosen, bow and when, 2931. court of, 2934. appeal from, to superior court, 2935. mayor must certify ordinance up to court, 2936. fees 2934. jurisdiction of, 2934, 2935, 3059. procedure in. same as justice's court, 2934. sentence may be to worli on street, 2937. no woman worlced on street, 2937. duty with reference to executing law against gambling, 371G. oath of office, 2932. presides at commissioner's meetings, 2933. pro tempore, chosen from commissioners, 2933. warrants issued by, when, 3156-31G2. MEASURES : See Weights and Measures. MECHANIC'S LIEN : See Lien. MEDICAL SCHOOLS : dead bodies ; officers not performing duty in distributing among ; misde- meanor, 35G7. MEDICINE: physicians, etc. See Physicians and Surgeons, practicing, without license, misdemeanor, 3645. sale of. See Pharmacists. , MERIDIAN MONUMENTS : injuring, etc., or not performing duties regarding ; misdemeanor, 3743. surveyor must test needle by, how and when, 3076, 3077, 3079. MILITARY : See National Guard ; also Volume II. MILLDAMS : abatement of, as nuisance, when, 2142. injury to, or obstruction to race, pxmished, how, 3678. obstructing passage of fish, 2461-2463, 2473, 2474, 2476, 2479. owner failing to keep gate and slope in ; misdemeanor, 3383. proceedings for right to build, and back water, 2131-2140. MILLS, PUBLIC : damages for erection of mill; proceedings to recover, 2141. judgment ; binding five years, when, 2143. binding one year, when, 2144. final ; who pays cost ; execution, 2145. defined. 2119. establishment of water mill, 2122-2130. built, when allowed, within what time, 2129. commissioners to locate, appointed. 2123. compensation, 2794. duty of, 2125. organization of commissioners, 2124. report of, 2120. sworn, 2125. not allowed, when. 2127, 2137, 2138. power of court upon return of rejiort, 2128. rebuilt when destroyed, within wliat time, 2130. summons issued, served on whom, 21'22. Rev. Vol. 1—79 1313 TXDEX. MILLS, rvmAC—^'oiitiiiKcil: measures kept at, 2121. miller: must s>'ii"l aiconlini; to tuiii. ■JIL'I). must have measures tested auU sealed. .307.3. new mill damairiuK water of old. renied.v, 2V.\S. obstructiun di-aiiis, etc.. after iiroeeedinj; estaMishiug : misdemeauor. 33S1. one protei-ted af.',-iiust damages from another, how. L'1.3S. owner of: proieeiliuf; liy. to ohtain water rights, ete., 1!1.">1. commissioners api)oiuted, 2133. fees of. 2140. oath and duty of. 2134. damages arrived at, 213.5. petition contains what. 2132. report of connnissioners ; not confirmed, effect, 213fi. conlirnied : owner may enter, etc.. 2137. registered. 21.30. failing to keep up necessar.v bridges; misdemeanor. 2007. 2703. 3772, 3773. toll dishes : keeping fal.se. misdemeanor. 3070. toll ; quantity taken as, 2120. taken l)y weight or measure. 2121. MINES AND 1MININ(J : See Volume II. obstructing drains used in mining: misdemeanor. .3380. partition of mineral intei-ests : iiroeedure. 2488. person killed in mine; coroner refusing inquest, mi.sdemeanor, 3797. phosphate rock : exclusive right to mine, granted, 17.")1-1753. bond for payment of royalty required, 1753. ro.valty of $1 per ton charged, 17.")2. 1753. regulations concerning duties of miners, etc., 3707. violation of ; misdemeauor, 3707. MINISTER OF THE GOSPEL: exempt from .iury duty, 1080. failing to make proper return of marriage license, misdemeanor. 3:!72. marrying white person and negro person, misdemeanor, 3:'.7(t. performing marriage ceremony without license, misdemeanor. 3372. MINOUS : See Child ; Infants. aiding, to obtain cigarettes; misdemeanor, 3805. apprenticed, how, 184-20(i. See Apprentice. childre-n ; general status of. See Child. contractor defrauding, of wages ; misdemeanor, 342Sa. enticing, out of state without consent of parent; misdemeanor, 3ii30. guardian for. See Guardian. owner of barroom, etc.. allowing, to enter; misdemeanor, 3720. procedure in court concerning. See Infants. ])urchasing liquor from dispensar.v for ; misdemeanor. .3."23. selling or giving cigarettes to. niisdemeanor. 3,S()4. deadl.v weapon of any kind to, misdemeanor. .3832. licjuor to, misdemeanor, .3524. sale prima facie evidence of knowleilge of .age. 3.524. MISI?I{ANDIN(; : See Foi'gery. MISCE(;ENATI0X: jiistice marrying white person and negro; misdemeanor. .3.370. minister marrying wliile pei-son and negro: misdemeanor, ."i;!7(). i'egist(M' issuing license to while ]ierson and negro; misdemeanor. 3370. white person marrying negro, guilty of infamous crime, .'il'.CO. 1314 IXDEX. JIISDEMEAXOR: punished how, where statute does not iiresti-ibe, 3293. MISJOINDER : lUMuurrer for, being sustained, action divided. 47(i. :;idund for demurrer to couiiJlaint, 474. MISMARKING : cattle and live stock for fraudulent purpose ; felony, .1317. MISREPRESENTATION : See False Pretense ; Fraud. MISTAKE: .iudgnient, order, etc., set aside for, when, 513. limitations, statute of, bars action for relief for, 395. bettins to run from what time. 395. MONEY : administrator pays, belonging to distributees, to clerk, when, 14."). 140. collected by road overseer, used how, 2721. contest over, paid for right of way, what done, 2591. description of, in bill of indictnient. .3251. e.xecutor of deceased guardian iiays ward's, to clerk, 1794. fees not called for, used as county revenue, 923. limitations, statute of, does not affect bank bills, etc.. .377. report of clerk of funds on hand, 918, 919. sheriff pays, collected on execution, to whom, 2821. MONUMENTS : defacing or removing ; misdemeanor, 3080. erected in public grounds ; iujur.v to, misdemeanor, 3742. meridian, 3070. 3077, 3743. See Meridian Monuments. JIORAVIANS : atRrm in court instead of being sworn. 2350. 23.58. MORTGAGES : betterments not alkiwed in action liy mortgagee, 000. copies of. certified as evidence. 1598. corporation, for purpose of reorganization. 1221. foreclosure of. See Foreclosure of Jlortgages and Trust Deeds. guardian's right in, survive to his succe.ssor, 1034. given in lieu of bond, 20.5-271. See Bonds. luisband and wife executing, on land ; how proven, 952, 1003, 1004. lieu for advances on crop created by mortgagors in possession. 2053. more than one mortgagee : sun-ivor executes power of sale, 1033. mortgagee dying, who executes power of sale iu, 1031. mortgagee's rights survive to his representative, when, 1031. personal property conveyed by. See Chattel Mortgage. jiower of sale in ; barred, when, 1044. given in lieu of bond, who executes. 205, 206, 208. jiurchase mone.v, wife need not .ioin in. 958. .3085. railroads may l)orrow money by mortgaging property. 2507 (10). redemption of; action for, barred when, .391. registration of : required, to conve.v clear title. 982. h,v register of deeds as soon as filed. 2058. real propert.v sub.iect of: must be written. 974. released and cancelled, how, 104(i. INDEX. MORTGAGES— continue!] : reiireseutative of deceased mortgagee may reuouuce and substitute be ap- I)ointed, 1038. sales under ; advertised, how, where and how long, G41, 1042, See Sales, advertisement must definitely describe laud, 1043. MORTUARY TABLES : expectancy of life indicated by, 1C2G. MOTIONS: affidavit in support of, or against, compelled when, 875. definition of, 874. determined in ten days, in certain proceedings, 876. entry and record of, clerk's fee for, 2773. heard at criminal terms, when, 1507. made to whom, and where. 874. notice of, served ten days before hearing, 877. provisional remedy ; motions to vacate or modify, have preference, 874. MOUNTAIN TROUT : catching, for sale, in Cataloochee creek ; misdemeanor, 2480. near Grandfather mountain, 2482. seining for, or catching, during certain months : misdemeanor, 3418. throwing sawdust in certain streams containing ; misdemeanor, 3382a. MUNICIPAL CORPORATIONS: actions against ; demand must be made before bringing, 1384. in what name brought, 1310, 2916. annual statements of receipts and disbursements of, published, 2973. boards of commissioners of; chosen how, 2919. failing to appoint chief of fire department ; misdemeanor, 3007. number composing, 2917. number changed, how, 2922. oath of, 2920. powers of, 2923, 2924, 2925, 2928-2930. vacancy in board, filled how, 2921. board of health of ; duty as to contagious diseases, 3440. bonds of ; exemption from taxation, 2970. buildings; regulations as to erection, etc., 2981-3011. See Buildings in Towns, burning of building of ; felony, 3.337. claims against, must be presented, when, 396. "commissioners" means "aldermen," when, 2918. constable ; appointed, how, 2925. oath of, 2938. powers of, generally, 2939. tax collector ; bond, 2940. monthly settlements by, 2972. failing to make ; misdemeanor, 3609. corporate powers of, 2910. how exercised, 2917. debt of ; none except for necessaries, but by vote, 2974. limited to ten jier cent, of assessed values, 2977. payment of. how made ; proviso, 2975. depositions in hearings before authorities, 16.^)3. dispensaries established, etc., 2009-2071, 2075-2078. See Dispensaries, elections In towns and cities. 2944-29(i7. See Elections, electrical inspector apjiointed by, 2983. electric com]ianies have franchises over streets of; proviso, 11.33. entitled to conveyance for land purchased at enforced sale, 2910. fire department, chief of; commissioners must appoint, 3607. 1316 INDEX. MUNICIPAL CORPORATIONS— cwiim«ed; Are limits must be established by, 2985. gambling ; town officers not executing law as to ; misdemeanor, 3716. inspector of buildings appointed by, 2982. lien of, for taxes, foreclosed by, 2912. liquors ; manufacture and sale regulated by, 2058-2080. See Liquors. lieeuse to sell, issued bow, after "saloons" carried, 2073. local option elections, 2069-2073. See Elections, markets established and regulated, how, 2928. mayor ; chosen how, 2931. court of ; jurisdiction, 2934, 2935. appeal from, to superior court, 2935. ordinances must be certified up, 2930. sentence of, may be to work on streets, 2937. oath of othee, 2932. presides at commissioners' meetings, 2933. salary of, fixed by commissioners, 2925. vacancy in olflee of, filled by commissioners, 2931. nuisances abated by commissioners, when, 2929. offices ; qualifications for, 2941. penalty for refusing to qualify and act, 2942. term of, continues until successors are qualified, 2943. ordinances ; concerning speed of trains tested by railroad, how, 1101. enforced, how, 2935. how proven in court, 1595. orders of commissioners served on corporations, 442 (8). policemen ; appointed by commissioners, 2926. duty of, as to liquor tralflc, 2059. execute criminal process, 2927. must destroy gaming tables, 3720. property of, sold bow. 2978, 2979. who makes title to, 2980. railroad ; election on subscription to, 2558-2562. See Elections. land of municipality acquired by, for right of way, 2596. streets of ; maintained by commissioners, 2930. prisoners may be sentenced to work on, 2937. no woman so sentenced, 2937. taxes ; collector of, 2940. dogs listed and taxed, 2971. levied by commissioners, 2924. list, taken by order of commissioners, 2969. open to inspection ; subject to correction, 2970. must be imiform and ad valorem, 2968. none on farm wagons selling produce, etc., 2928. person failing to list, pays double, 2909. tax sale certificate assigned by. 2901. towns and cities are bodies politic and corporate, 2915. tub system for excrement provided b.v, when, 3052. violating ordinances of ; misdemeanor, 3702. water supply of; olficers failing to inspect; misdemeanor, .3048, 38G1. precaution must be taken to keep pure, 3058, 3059. wharves ; line of building regulated by, 1696. MURDER AND MANSLAUGHTER: challenges to jury ; number allowed defendant in, 3263. number allowed state. 3264. duelling ; aiders and abettors in. accessories to, when, 3629. person killing another in ; murder, 3629. husband and wife ; either feloniously slaying other ; effect, 7. indictment ; how murder alleged in, 3243, 3245. first degree alleged: jury can find second, etc., 3271. 1.^17 \\ IXDEX. MURDER AND MASaLAVGnTKll—mnliiiucd: injuiiii^. etc., railroad, canal, etc.. nialicioiisly. causing death, murder. :i7.".4. witliout malice; punislunent, 37."). nianslau^lliter inuiislied. liuw. Sdlii. second conviction, how imnished, .'Minfi. nuirder divideil into two degrees: defined, .S031. post mmteni exaujination. ordered, how. 31.12. venue in action of, 3234-323!). See Venue. Criminal A. time in which notice of dishonor must be given. 2252-2257. "value" defined in chapter on, 2340. void, when, 2204. who primarily and who secondarily liable on, 2342. "written" defined with reference to, 2340. NEGROES : issue of certain colored persons to inherit, 155G (13). marriage between, and white person. See Miscegenation, white child not bound to, 186, 201. NEW PROMISE : must be In writing to revive a debt, 371. NEWSPAPERS : action against, for libel ; notice to, necessary, 2012. retraction published, actual damages only recoverable, 2013. notices of sales, entries, etc., advertised in. See Advertisement, person communicating libel to : misdemeanor, 3635. publication of process of courts, etc. See Publication. NEW TRIAL : .iustices' courts can not grant, 1489. may be granted, when, 554. motion for. when made, 554. refusal of motion ; appeal, 587. superior court may grant, in criminal cases, when, 3272. NEXT FRIEND: infants, lunatics, etc.. sue by, or guardian, when, 405. NEXT OF KIN : administer on estate ; right to, 3. descent, 1556. See Heirs. entitled to notice of probate of nuncupative will, 3127 (3). heirs. See Heirs. illegitimate children next of kin : to each other, 137. to mother. 136. share in personal estate of decedent, 132. surplus income of lunatic goes to, when, 1900. NOLLE PROSEQUI : "with leave" entered, when, .3273. clerk issues capias after, when. 3273. accused arrested, witnesses subpoenaed, 3273. record of, kept by clork, 915. NONRESIDENT: alien ; property rights of, 182, 18.3. limitations of actions as to. 3G6. summons served on : by publication, when. 442. by substituted service, can defend within what time. 449. personally, how. 448. INDEX. NONSUIT: Hiusdale act, 539. moliou to, wlien plaintiff rests case, 539. new action can be brought within a year, 370. not allowed after verdict, 1520. NONUSER : corporate franchise, after two years, liable to be annulled, 119S. railroad franchise forfeited for nonuser, when, 2504. oyster beds, for two years, forfeits license, 2374. NORTH CAROLINA SCHOOL FOR DEAF AND DUMB : See Volume II. person violating ordinances of ; misdemeanor, 3695. NORTH CAROLINA SCHOOL FOR DEAF, DUMB AND BLIND: i Volume II. person violating ordinances of ; misdemeanor, 3G95. NOTARIES PUBLIC: acts of, attested by notarial seal, 2352. appointed by governor, 2347, 2348. clerks are notaries ex ofBcio ; seals, 2349. commissioners of aflidavits, 925. conveyances ; probate of, under private seal ; validated, 1012. expiration of commission ; time of, must accompany seal, 2351a. fees of, 2S00. oath of, 2347, 2357, 2858, 2360. powers of, 2350, 2351. protest of negotiable instruments by, 2304. See Protest. qualifies before clerk, 2347, 2348. NOTICE : actual, of fraud, necessary to make negotiable instrument void, 2205. administrators give, to creditors to present claims, 39, 40. serve, on creditors, 41. adverti.semeut of. See Advertisement, bridge owner notilied to put in draw, 2609. clerk gives, to creditors of decedent, when. 111. to relatives, when application for guardian, 1772. issues, to enforce settlements, etc., 901. commissioners give, as to removing county buildings, 1318 (28), 1319. common fences removed after giving, 1G71. constable executes, within jurisdiction, 938. dishonor of negotiable instruments, 2239-2268. election ; special, called by, 2967. new registration at ; notice given of, 2950. entry of land ; notice of, posted, 1708. executor served with, when another presents will for probate, 3123. garnishment for taxes ; notice served, 2880. grants ; errors in, corrected after notice, when, 1742. issuing : clerk's fee for, 2773. landlord's notice to tenant to quit, 1984. libel ; notice to newspaper before action brought, 2012. lieu ; notice of, 2017, 2018, 2020, 2021, 2027, 2028. 2029, 2039, 2042. docket for, kept by clerk, 915 (21). when and where filed, 2026. 2028, 2035. lis pendens, 400-4G4. See Lis Pendens, motion in a cause, after ten day's, 877. must be in writing, 878. mutilating legal, before day of event : misdemeanor. 3710. 1325 INDEX. uanie of person ; applicatiou to change, 2147. newspaper served with, before action for liliel, J(irj. no personal claim asaiust defendant ; notice of, fjiven, 1270. partnership: of dissolntion. 2."i;ill. 2.542. production and inspection of writings enforccnl by, 1050-1038. receiver's notice to corjioration creditors, 122S. register of deeds may mail. 2007. restoration to ciUzenshi|i ; n. roads ; notice of application for. 2084. 2080, 208S. notice to W(jrk on, served, how, 2720, 2721. sales ; notices of, advertised. See Advertisement, .service of : by publication, 882. See Publication, deemed, sheriff returning as executed, 880. on attorney, when and how, 880. nonresideiit, 882. party, when and how, 881. road hands, 2720, 2721. whom, and how, 879. sheriff's, to taxpayers, of his rounds to collect, 2870. solicitor given, when writ of habeas con>us granted, 1844. special term of court ; notice of, must be published, 1.51.3. stock impounded : notice to owner, 108O. strays ; register gi\'es notice of, 2833. surety gives, wlieu, to creditor, to collect, 2840-2848. tax deed made only after, to delinquent. 2903. lien foreclosed, after ten days', 2912. sale of land after notice to delinquent, 2889. third person receiving, that private examination of married woman fraud- ulent, etc., effect, 950. township erected or altered after, 1318 (30), 1319. watercourse ; petition to make, lawful fence, 1003. NUISANCE: See Volume II. abatement of, ordered: refusal to conqily : misdemeanor. 3440. by town autliorities, 2929. action for, brought how, 825. .ludgment for damages or removal of nuisance. 825. milldam abated as a, when, 21-12. NUKSR, TKAINEI): See Volume II. acting as, illcgall.v : nnsdenieanor, 3050. OATH : administered by whom, 087, 901, 1I27. Iii54. 20SS, 2.".01, 2302. '2405. with solemnity, 2353, 2354. administrator, executor and collector takes, 29, 2300. administrator, public, takes, 19. attirniation : forms of. 2355. 23.58. "oath" means, when, 2831 (5). who allowed to make. 2:r>5. 23.50, 2.358. appraisers allotting homesteads, 087. attorney at law : reipiirenients, 209, 2.300. attorney general, 2357, 2.'15S, 2;!00. book account proven liy, 1022, 1023, 2.300. certain invalid oaths validated, 2.'!03. clerk, superior court, .S91. 2:157. 2:45S, 2.3m. clerk, sniiremc court, 2;il>. ■_':'.57. 23.5,8, 2300, coiiiiiiissidiicr of atlidavits. '.127. IXDEX. OXni— coil/ ill iicd: <-ouuiiissi()iior of wrecks, 2;!57, 2358. 2300. coiistahU-, ii:;i4. 2;ir,7, 2;!riS. 2:!il(», 2!)38. ill cliMi'ge of .iury, 14!)(i (33). coustitutiou of United States, oatli to sni)port, taken b.v wlioui, 23.'J7. of X'ortli Carolina ; oath to sii|i|iort, 23r>s. coi'por.'ilion commissioners, take, l(i."i;i. 23ri7, 235,s. aers of take, 1300, 23G0. count,\' sur\-eyor ; talces. 23.-I7, 2358, 2300. m;i,y administer, when. 2301. eounty treasurer, 2357, 2.'!5S, 23()0. deputies may administer, when, 2359. dower ; .iury allotting, take, 2300. election ,iud,ges. 29SS. registrars, 2948, entry-taker. 1703, 2357, 2358, 2300. game warden. 1808. grand .iury : foreman and .iurors take, 2360. officer iu charge of, takes. 2360, guardian. 1759. insolvent debtor, 1918a. inventory of estate of decedent returned under. 42. judge, superior court, 1497, 2357, 2358, 2360. .iurors take, in the different actions, 1490 (32), 2300. justice of the peace, 1411, 2357. 2358, 2300. mayor's, 2932. notaries public. 2347. 2357. 2358. adnnnister. wlien. 2.3.50. "ontli" means, what. 2S31 (5). ollicer attending jiu'.v. 1527, 2360, oyster commissioner takes, 2357. 2.358, 2403. administers, 2405. oyster inspector, 2357, 2358, 2404. oyster license: oath to obtain, 2409. l)artition ; commissionei's appraising land for, 2300. penalty on ofHcer entering on duties without taking, 2.307. person taking: lays hand upon, and kis.ses Holy Evangelists, 23.54. poliieman of railroad, 2607. probate by. See Probate. liulilic officer must take, before entering on duty. 2367. referee may administer, 521. register of deeds, 2357, 2358, 2300, 20.52. roads ; jui-y laying off, takes, 2360. secretary of state, 2357. 2358, 2360. sheriff. 2357. 2358, 2360. a^1. speculating in claims, ,3575. pilot, when. .3500. register of deeds failing to perform duties, 3592. 3590. sheriff; for failing to seize illicit stills, etc., 3520, ,35,3.3. for allowing prisoner to escape. 3577. sheriff farming out his ollice: a misdemeanor, 2828. title to, tried by quo warranto, 820-845. See Contested Elections. INDEX. OFFICER, PUBLIC : See Volume II. accepting bribe ; felony, 35CS. amercement of. See Amerceuieut. allowing escape of prisoner, fined and removed, 3'ul. assuming wi'ongfully to be; punished, how, 944 (.3). authority conferred on more than one, how exercised, 2831 (2). bonds of. See r.onds. Official, bribery of: felony, 3r,C,S. buyintr and sellini; olHre; misdemeanor, .3.571. offender forfeits olliee, 3571. comiiensation of. See Fees; Salaries, continues in office till successor qualifies, 23ft'<. contracting as othcer, for own benefit ; misdemeanor, 3572. con\eyauces executed by, after term e.xpires. !)50, 2905. count.v. See under name of officer. swearing falsely to rejiort ; misdemeanor, 3G05. de facto tax collectors; acts of, valid. 2S97. embezzling funds or propert.\-, :!4(i(;-;!41o. See Embezzlement, entering upon duty without qualifying; misdemeanor, 350.5. forfeits otflce, 3565. failing to deliver public moneys to proper person ; misdemeanor, 357(5. to discbarge duty required by law ; misdemeanor, 3576, 3592. removed from office, when, 3592. file statement of fines, etc., when required ; misdemeanor, 3579. furnish information to board of public charities; luisdemeanor, 3566. give board of public charities chance to examine; misdemeanor, 3566. pay over fines, licenses, etc. ; embezzlement, when, 3594. publish reports required ; misdemeanor, 3576. turn over books, etc., to successor; misdemeanor, 3576. farming out office ; misdemeanor, 3571. forfeits office, 3571. interested in selling supplies to institution with wliicb connected; misde- meanor, 3833. removed from office, 3833. member of general assembly accepting bribe ; felony, 3.")70. forfeits office, 3570. oaths of. See Oath. must take, before acting, 2367. offering a bribe to, felony, 3569, 3570. person obstructing, in discharge of duty ; misdemeanor, 3700. removal of, from office for failure to discharge duties, 3592. speculating in claims against state, county, etc. ; misdemeanor. 3575. special .iurisdiction of, how pleaded, 497. state officers. See under name of office. OFFICIAL BONDS : See Bonds, Official. OLEOMARGARINE : defined, 3828. selling, without complying witli regulations ; misdemeanor, .3828. OPINIONS : .iudge can not express, on facts. 535. supreme court, to be in writing, 1548. certified down, how, 1549. ORDERS AND DECREES : See .ludgment. appeal from order allowing provisional renietl ; nii.sdeuieanor, 2302. preserved : as fresh ; misdemeanor. 3444. shells scattered ou beds, by commissioner, 2421. state exercises control over, where, 237.5. towns can not tax persons selling, on street.s, 2928. trespass upon private beds; misdemeanor, 2402. unloading, after sunset or on Sunday; misdemeanor, 2394. using illegal measures for ; misdemeanor, 2399. vessels with, allowed to go through canals, when, 2420. working on oyster ground at night ; misdemeanor, 2402. PAKDON; See Volume II. effect ou i-estoration to citizenship, 2680. petition to governor; names signed without authority: forgery. 342C. PARENTS : abandoning child, right of custody forfeited, ISO. right of custody restored. 181. abducting child, after abandoning ; felony, 3373. apprenticing child ; power of, 201. consent of, necessary to obtain marriage license, when, 208S. divorced ; custody of children, 1570. inherit from child, when. 1556 (r. 0). may appoint guardian for child, 17G2. misstating age to manufaili.".ls -et, 1378. railroads : discriminating between connecting lines, 1088. failing to make rejiorts to corporation commission. 1089. supply "jim crow" cars, 2022. transfer freight in time, 2G32. refusing to obey orders of corjjoration commission, 1087. check baggage, 2fi23. receive freight, 2031. violating provisions of chapter Corporation Commission. 1090. rules of corporation commission, 1086. receiver sending for person, etc. ; refusal to be examined, 1227. register of deeds ; issuing marriage license unlawfully, 2090. failing to record returns, etc., 2092. road hand failing to work, 2720. road overseers neglecting duty. 2724. road supervisors failing to perform duties as to overseers, 2714. sheriff; failing to pay execution costs into court. 640. to pay money 'over when collected, 2821. to perform duties as to process. See Amercement. outgoing, failing to execute process, 2820. selling property under execution inilawfully, 049. steamboat owners; for discriminating between connecting lines, 1088. refusing to obey orders of rorporatiou commission. 1087. street railway couiiianios discriminating between connecting lines, 1088. refusing to obey orders of cor]i42. traden\arks ; securing false registration of, 3018. violating regulations concerning, 3022. usury; person taking. 1951. warehouseman ni.-iking false charge. 3044. water company failing to have water inspected. 3047. weights and measures : person using unlawful. 3000. 3007. who sues for. 401. witnesses failing to attend, 1643, 10!5O, 1051. PENSIONS : See Volume II. county board of pensions ; compensation, 2783. officer failing to discharge duties as to : misdemeanor. .3.59.3. speculation in pension claims ; misdemeanor, 3732. PERISHABLE PROPERTY: attached : sold, when, 772. freight containing, sold, when. 2038. sold pending appeal, when, .598. warehouseman mayi sell ; when, 30.39. unable to sell, what done, 3040. INDEX. PERJURY: contractor, etc., swearing falsely to defraud laborer, 3613. creditor swearing falsely against assignor for creditors, 3617. defined and puuislinient prescribed, 3615. iudictuient for, substance of, 3246, 3247. insolvent debtor falsely taking insolvent's oath, 3614. person ; corruptly taking oatb at election, 3390. swearing falsely before committee of general assembly, 3611. before court-martial, 3612. physician making false death certificate to insurance company, 3487. subornation of, defined, and punishment prescribeil, 3616. PERM.VNENT REGISTRATION: See Volume II. officer failing to perform duty concerning; misdemeanor, 3393. unqualified person registering ; misdemeanor, 3392. PERSONAL PROPERTY : action by representative to recover, 161, 162. claim and delivery of, 790-802. See Claim and Delivery. corporation shares are, 1168. defined, 2831 (6). exemption from execution, 685. See Personal Property Exemption. forfeited to state, how recovered, 845. general gift in will includes, what, 3143. husband's ; wife forfeits interest in, 7, 8. wife has distributive share in, 132. lien on : for repairs, 2017. for taxes, when, 2863. limitations, statute of. bars action of detinue, 395. malicious injury to, misdemeanor, 3676. sales of: by personal representative, 61-67. for taxes. 2876, 2884. 2886. what proceeds from administrator's sale of real estate is, 48. what, passes by will, 3140. wife's ; at death goes to husband, 4. husband forfeits Interest in, 7, 9. PERSONAL PROPERTY EXEMPTION: allotted, how. 695, 699, 697. when, 695. appraiser's duty in laying off. 697. oath and fees of, 696, 1274, 1275. cost of allotting. 1274, 1275. exception to valuation and allotment ; procedure, 699. fees of sheriff in making allotment, 2777. increase demanded by debtor ; procedure, 700. property of debtor exempt, 685. registered in register of deed's office, 698. undertaking of objector' to, 701. PERSON.VL RKPRESENT.\TIVE : See .\dministrator ; r<)!le<'tor : Executor. PESTHOUSE : provided for liy county cunimi.ssioncrs. l.'HS (15). PETITION : administrator's, for final settlement. l."i(i. for sale of land for assets. 77. adoption of minor children. 171. burnt and lost re.5-409. See Complaint, condemnation proceedings : amendment of, in, 2.502. conditions precedent; pleaded, how, 49S. construction of, 495. counterclaim. See Counterclaim, defects in, when innnaterial. disrcg.-^rdcd. .5(10. defendant's. See Demurrer to rieading: Answci-. demurrer; generally. See Dennu-rer to Pleading. to one cause of action and answer to .■inotlicr, 171. evidence; pleadings can not be \ised as. when. 4!i;'>. ICOl. ( i INDEX. I'LEADINGS — continued: equitable defenses in special proceedings, 717. forms and rules of, prescribed, 487. frivolous ; judgment thereon, 560. instrument for payment of money only, how pleaded, 499. irrelevant, redundant matter, stricken out, when, 49G. judgments or other orders of court, how pleaded, 497. jurisdiction of otHcers in special cases pleaded, 497. justice's court ; may be oral or written, 1458. no particular form of, 1463. libel, complaint in action for, 501. limitations, statute of. pleaded, how, 483. negligence ; contributory, how pleaded as defense, 483. new matter in answer and reply, deemed denied, when, 503. petitions. See Petition. plaintiff's. See Complaint; Demurrer to Pleading; Petition; Reply, private statutes, pleaded, how. 500. reply of plaintiff. See Reply, rules of, in justice's court, 1457-1478. set-off. See Set-off. sham and frivolous, not permitted, 472, 560. slander ; complaint in action for, 501. special proceedings ; time of filing, 714-716. supplemental, allowed, when, 511. time for, enlarged, when, 51"2. for filing, 466, 473. usury ; how pleaded in defense. 1951. variance between, and proof, 515-517. verification of, 488-493. See Verification. PLEDGE : corporate stock held in, voted on, how, 1185. pledger of stock liable as stockholder, 2557. POISON: druggist retailing, without complying with law ; misdemeanor, 3650. sale of, regulated, 3806, 3829. without label ; misdemeanor, 3655. POISONING : person, murder in first degree, when. 3031. stock, by leaving shrubs exposed, misdemeanor, 3318. streams, to kill fish, misdemeanor, 3417. POLICE : appointed by town commissioners, '292(1. duty of, with reference to gaming tables, 3720. with reference to liquor traffic, 2059. execute criminal process, 2927. intendant of, must be qualified voter, 2941. railroad police, 2604-2610. See Railroads. POLITICAL SOCIETIES : See Secret Political Societies. POLL TAX: See Volume II. exemption from ; presenting false, to election oBicer ; forgery, 3401. county commissioners can grant, 1318. garnishment to enforce collection of, 2880. record of payment of, kept by clerk, 915 (29). sheriff: failing to furnish list of voters having paid; misdemeanor, 3400. failing to give receipt or falsely dating, misdemeanor, :;4(i2. taxation generally. See Tax. 1341 INDEX. POORHOUSE : See Home for Aged aud Infirni. POSSE CO.MITATUS : sheriff calls to his aid, when, 798, 3181. 374ti. refusing to respond to call, misdemeanor, 3701. POSSESSION: adverse ; effect of. See Adverse Possession. deemed to be in rightful owner, 38G. defendant in. holds office during contest over election, 83(5. party owning contiguous tracts vinder one boundary ; effect of, 1505. real property rights determined by question of. when. 380-389. tenant's, is landlord's, 387. POWER OF ATTORNEY : husband and wife execute, when ; how proven, 952, 1003, 1004. married woman can convey by, 957. probate and registration of, 987. real property ; power to convey, must be written, 070. PRACTICE : in civil causes. See Civil Procedure ; Special Proceeding, criminal causes. See Criminal Procedure. PRELIMINARY HEARING : accused may waive examination, 3190. examinations and recognizances returned to superior court, 3205. justice; duty of, to examine witnesses, 3192. to reduce testimony to writing, 3193, 319G. failing to return examinations and recognizances, contempt, 320C. lynching ; investigation of, by solicitor, 3"200. participants in, must testify, 3201. not excused on ground of self-incrimination. 3201. testifying for state, pardoned, 3201. person found probably guilty, bound over to court. 3200. solicitor can send for and examine witnesses. 3200. misdemeanors ; not necessary to inquire into, when. 3198. prisoner; advised of rights before being examined. 3194. answers of, reduced to writing and certified, 3196. bound over, when, 3202. discharged when no probable cause, 3199. entitled to counsel and allowed to cros.s-examino, 3193. examined without oath, 3194. let to bail, when. 3202. must be cautioned of his rights, 3194. procedure when justice has not final jurisdiction, .1191. witnesses may lie separated in giving testimony, 319.5. not allowed present when prisoner examined, 3195. recognized to appear before court, 3203. security for appearance required, when, 3204. PRESENTMENT OF NEGOTIABLE INSTRUMENTS: See Negotiable In- strimients. PRESENTMENT BY GRAND .JURY : clerk's fee for, 2773. names of witnesses indorsed on. 3241. no arrest or trial on, 3240. PRESIDENTIAL EI-ECTORS: See Volume II. compensation of, 2701. 1.342 INDEX. PKISONER: See Commitment; Jail. allowed to supply himself with bedding and food, 1344. bail allowed ; who takes, 3207-321.3, 3228. See Bail, Criminal Action. bond to keep prison bounds ; escaping ; procedure, 1340, 1341, 2829. returned, how, 1340, 1341. breaking prison; misdemeanor, 3G,57. captured in one county and removed to another ; cost, 1287. certain, allowed liberty of prison bounds, when, 1339. committed to jail of adjoining countj', when, 1349. confession of judgment or giving bond does not discharge, 1293. contined by jailer in improper apartments, 3G60. conveying to ; articles forbidden by rules ; misdemeanor, 3G62. messages, instruments, etc., to aid escape ; misdemeanor, 3GG2. convict force on public roads, 13.50. See Convicts; County Convicts, county commissioners may farm out certain, 1352. danger of escaping, militia called out, how ; compensation, 134.5. employed on public works of county, 1318 (11). e.scaping from prison ; misdemeanor, 3657. sheriff allowing ; penalty, 2823. expenses of ; allowance to sheriff, 2777. guard, etc., for, 2777. keeping ; paid by county, when, 1346. farmed out, credited on fine and cost for labor, 1352. sheriff has control of their discipline, 1354. guarding and removing ; expense paid by what county, 1347. injury to, by jailer : misdemeanor, 3061. prisoner has action for damages, 3661. insolvent debtor discharged from, how, 1915-1919. insolvents allowed certain compensation for work. 1355. jailer confining, in improper apartments ; misdemeanor, 3660. officer maltreating; misdemeanor, 3659. party hiring, may prevent escape, 1353. preliminary hearing. 3190-3206. See Preliminary Hearing, protected from lynching, how, 2825. removal of, to another county ; expenses, etc., 1285. expenses of, paid by whom, 1347. sheriff transfers, to his successor, how. 1348. solicitor prosecutes officer for escape of, 2822. United States prisoners ; allowance for support of, 1342. confined in county jails, 1342. unlawfully detained ; discharged. See Habeas Corpus, Writ of. PRIVATE STATUTES : evidenced, liow. 1.592-1594. pleaded, how, 500. PRIVATE EXAMINATION: contracts between hu.sbaud and wife void without, when, 2107. conveyances, etc., not good against wife without, 952, 2096. 2097. forms for, 1003, 1004. may be taken at different time and place of husband's acknowledgment, 953. not taken ; husband's deed may be registered, 954. when mortgage to secure purchase money, 958. procured by fraud ; effect on innocent purchaser, etc., 050. who may take, 955, 989. wife a lunatic, husband conveys without, 959. PRIZE FIGHTING : engaging in ; felony, 3707. gambling on : felony. 3707. IXDEX. PROBATE : appreDtiee's indenture, 200. before what officers, 920, 989, 990, 901. certificate of incorporation, 1139. clerli ; fee of, for, etc., 277.3. passes on sufficiency of, and orders registered, 999-1001. except when a party, 99.5. forms for ; aclinowledgment by grantor. 1002. adjudication and order of registration, 1001. clerli's certificate when justice probates, 1000. i when probate by nonresident without sale. 1007. coi-poration conveyances, 1005. private examination of wife. 1003. and adcnowledgment of husband, together with, 1004. handwriting of malter proven, when ; exception, 99.S. of witness, jn-oven, ^\hen, 997. husband and wife may acljnowledge at different times, etc., 953. irregular probates validated, 1008-1030. aelviiowledged by wife prior or since husband, 1017. adjudication liy judge superior court, clerlv being party. 1011. Buncombe county clerk criminal coin-t having taken, 1020. clerk being interested, but probated, etc., 1015. clerk of inferior court having taken, 1021. clerk of wrong county taking. 1030. corporate articles of agreement, 1027. conveyances by corporations. 1028. Greene comity de facto officers having taken, 1029. handwriting of gi'antor proven. 1020. hu.sband and wife not acknowledged at same time, 1017, 1018. judge, supreme or superior court, or deputy clerk having taken, 1009. nonresident notary or cleric having taken, 1022, 1023. notar.v having certified under his private seal. 1012. official of state other than of grantor taking. 1013. probatetl by justice in wrong county-, 1017. resident acknowledging outside of state, 1019. secretary of state instead of governor certified to officer. 1014. talcen under form previously legal, 1025. vice consul or consul general having taken, 1024. where "previously" instead of "privately" used, lOlG. justice's fee for taking. 2788. livery of seizin supplied by, and registration, 979. not required as to deeds made prior to .Tanuar.v 1, 1870, when, 981. private examination of wife. 9.52. 1003. 1004. See Private Examination, required, when, 952. 979. 9S9. 2090. 2097. seal of officer required. 993. special commissioner appointeil to take, when. 991. taken anywhere. 994. who may take, 926, 989, 990, 991. wife insane, husband conveys; clerk's duty as to. 1000. wills; probate of, 3122-31.34. See Wills, witness dead, affidavits evidence, when, 3121. witnesses and parties subpoenaed to testify, 996. PROCESS : amendment of. .507. criminal ; indorsed b.v officer, how. 3149. issued and returnal)lp. how, 1508, 3148. directed to officer of adjoining county, when, 1,530. 1531, execution against property. See Execution, not quashed for want of form. when. 1467. not returnable to special terms; exceptions, 1517. 1.344 INDEX. I'ltorKSS— co/(//// »('(/.• officer not disebarging duty as to; penalty. See Amercement. order.s. See Orders and Decrees, return of, 430, 433-436, 1507, 1508, 1517. 2819. may be made by mail, 2819. iiflicers failing to make proper. See Amercement, service of; bv publication, 442-44G, 762, 766, 772, 888. personal. 439. 440, 448. 879, 880, 882-884, 2580, 2583, 2587. on domestic corporations, 440. foreign corporations, 440, 1243, 1448. inebriates, 440. infants, 440. insane persons. 440. railroad for laborer's wages in constructing,' 2018. sheriff or .lailer in habeas coiTins proceeding, 1833. tenant in ejectment proceeding, 2003. i-eturn sutHcient evidence of service, 1529. sheriff of adjoining county may serve, when, 1530. prohibited on Sunday; exception, 2837. proof of, 446. subpoenas issued and served. See Subpoena, summonses issued, etc. See Summons, warrants executed, etc. See Warrants, what, executed on Sunday, 2837. PKOCESSIONING : Ijoundarles established by. 325, 326. 328. PRODUCTION OF WRITINGS : coriioration commission's power to compel, 1067. on trial, 1.598, 1599, 1624, 1657. party has right of. in order to inspect, 105G. PROFANE SWEARING : justice may punish for. in hearing of court; contempt. 1426. PROMISSORY NOTE: action on ; trial, when. 484. cost hi action on, where several defendants, 12(i4. (IcHiieil, 23:U. See Negotiable Instruments. PROOF : amendment of i)leadiugs to conform to, when. 51.5. burden of. See Burden of Proof, deeds. See Probate, failure of, 517. PROPERTY; See Personal Property; Real Property. PROSECUTION BOND ; money deposited in lien of. 450. mortgage in lieu of. 265-271. pauper suit does not require, 451. plaintiff gives, for cost, 4.50. See P.ond for Cost. surety company may give, 273. PROSECUTOR : court determines who is, when, 1295. taxed with costs, when, 1295, 1296. imprisoned for nonpayment, when, 1297. Rev. XiA. 1—81 1.345 IXDEX. IMJOTEST: (if hills, notes, etc.. 2302-2310. See Negotinlile Iiistniiiifiits. entrv of Uiiul, 1709. I'KOXY: sTocklioUlers of corporations vote by, how, 1184. PUBLIC ADMINISTKATOR : See AUuiinistrator. Public. PUBLICATIOX : iulvertiseiiieiits of notices, etc See Advertisenieut. .iniunil st.itenient of iimounts pairl county couiuiissioners. 1320. .•ipiilicMtioM foi" li(ense to plant oyster beds, 237.3. board ol bi^altb ni.-ikes, of contaminated water sujiply, 30."i(i. county exliibit of receipts and disbursements, 1.388. county finance committee's statement of county finances, 1.3S0. 1303. delimiucnt taxpayers; list of. published by sheriff. 28211. free trader; married woman's relinquishment of rijjbt iniblisbed, 211.">. rates of transportation of carriers, 1109. sales of i)roperty, etc. See Advertisement. secretary of state publishes annuall.y list of coriiorations, 1244. service of process bv : in what cases. 442-440, 702, 70(5, 1199, ;'.i)37. :'.12 3130. waiver of, 443. l)roof of service, 440. service comjileted, when. 444. tax deed not made until notice by. to delinquent. 2903. time in which must take iilace. computed how, 888. warehouseman makes, of sale for storage charges, when. 3037. PIP.I.IC l'.riLOI.\(;S AND (JUOrXDS: see Volume II. burning any imblic buildings; felony, ,3.337, .3344. disorderly conduct about ; misdemeanor, 3742. person tresjiassing in any way ujion. misdemeanor, 374.^. su]iervision of. See Boai'd of Public Buildings and Grounds. Pri'.LIC (JUAUDIA^f ; See (iuanli.in. PUBLIC HEALTH: See Volume II. contagious diseases, notice of, must be given b,v householder, .■!443. bv physician, .344,8. school authorities, 3440. 3441. suiierintendent of health, 3440. failure to give notice; misdemeanor, 3440, .3-14.3, .3448. pilot, etc., of infected vessel bringing to harbor; misdemeanor, .34.'i1. food regulations for benefit of. See Food; also Volume II. householder must disinfe<-t. when contagious disease. ,3443. (|U,n-antin(' ; failing to comply with re.gulations ; mi.sdemeanor, .3449. traveler from infected district not obeying; misdemeanor, .■i4.'>4. violation of regulations as to Cajie Fear River station. 34.''iO. sanitary regulations as to contagious diseases, ,3443. .■IS to nuisances on premises, 3440. v;iccination, 34.^.". schools; authorities require certain certificates of pupils, 3441. children exjiosed to contagious diseases can not attend, .3441. health .lutliorilies to notif.v, of contagion, 3440, state laboi'iitory of hygiene established to iiromote, 3(I."p7. analyses made by state board of health, 30."i7. aiiproi)riation for, .30.57. vaccination; violating regulations as to: misdemeancu'. 34.')."). 1.340 INDEX. PUBLIC UKALTH—foiitiniiCfl: water supidies ; seneniUy. See Water Siipply. analysis of, .•;(l.J4-3057. depositing dead liody on watershed of ; misdemeanor, .^8(12. human excreta on watershed of public; misdemeanor, 3S57. officials of municii)ality : failing to inspect, misdemeancir, .".sc.l. failing to provide tub system for excrement; misdemeanor, 38G0. person polluting any public, nusdenieanor, .38G2. damaging another's, etc. ; misdemeanor, 3456, 3457. damaging, of any pnlilic institution ; misdemeanor, 3458. regulations concerning water companies. See Water Supply. sewerage discharged into, misdemeanor. 3858. PUBLIC LANDINGS : county commissioners' jwwer to establish, 1318 (19). PUBLIC MEETINGS : person wilfully disturbing lawful ; misdemeanor. 3704. PUBLIC SCHOOLS: See Volume II. books ; selling, at more than contract price ; misdemeanor, 38.34. census ; distrii-t committeemen taking, or returning inaccurately, etc. ; mis- demeanor. ;i,s;!(i. county ofliiers I'orfeit office for failing to account for funds of, 3837. disturbing, defacing, etc.. school property ; misdemeanor, 383S. fines, etc., imposed on offenders go to suiiport of, 1378, 2006. officers and teachers interested in sales to ; misdemeanor, 3833. .3835. otiicers failitig to provide four months school ; misdemeanor, 3837. ]>roceeds from sale of strays go to, 2835. quarantine against contagious diseases, how, 3440. .3441. PURCHASE MONET OF LAND : action for, complaint uuist state, what, 408. execution for, form of, 627. issue as to, submitted to jur.v, 480. .ludgmeut for, states what, 027. mortgage to secure, wife need not sign, 958, 3085. PURCIIASEK FOR VALUE WITHOUT NOTICE: See Innocent Purchaser for Value. QUAKERS : may wear hats in court. 1528. oath ; manner of taking by. 2356. 23.58. QUARANTINE: See Volume II. householder not giving notice of contagious disease : misdemeanor, 3443. live stocli transported across line, misdemeanor, 3294. person failing to comply with regulations, misdemeanor, 3449. physician not giving notice of contagious disease ; misdemeanor, 3448. l)ilot of infected vessel, bringing to harbor, misdemeanor, 3451. school authorities not performing i\uty as to. 3440. .3441. superintendent of health failing to perform duty, 344S. traveler from infected place violating regulations; misdemeanor, .3454. \iolation of regulations as to station on Cape Fear river, 34.50. QUABTERMASTER (iENERAL: See Volume II. salaiy of, 27.52. IXDEX. QUIETING TITLE: uclion for, against adverse claiuiant of land, 1089. right of way ; title to, perfected how, 2500, 2505, 2D0U. QUO WARRANTO : See Contested Elettions. action in nature of, supplants \vrit. S2G. attorney general brings action of — against corporations; to compel accounting, 1107. to dissolve, 1198. See Corporations, preserve projiertj-, 1197. remove officers, 1197. restrain ulti-a vires acts, 827, 1197. against person usurping public office, 827, 832. arrest of usurper, wlien, 831. defendant's undertalving before reply, 835. person possessing office retains during trial, S3(). trial expedited, 833. grants leave to private relator, wlien, 827, 828. costs in action in nature of, 1261. deiiositious taken in action of, 1054. judgments in action of, 837, 839, 840. appeal from ; does not stay execution, 842. property forfeitelantation roads must have crossings, 2601. roads may be turned, when, 2570. two companies may construct ; effect, 2602. contracts for through transportation, 1108, 2640. corporation commission's authority over, to — authorize running certain trains on Sunday, 2613, 2614. fix demurrage charges, 1100. investigate: affairs of, 1064, 1066-1071. See Corporation Commission. railroad accidents. 1065. ' prescribe time limit for delivery of freight, IKiO. prevent discrimination in rates, 1095. regulate: handling of freight and baggage at depots, 1094. placing and loading of ears, 1100. rales of. Kiir,. 1099, 1100, 1104-1112. See Corporation Commission, speed of trains, when. 1101-1103. require construction of sidetracks, 1097 (5). stations to be e.stablished, 1097 (1). to be changed. 1097 (2). union passenger depot, 1097 (3). corporation commission ; powers generally over. See Corporation Com- mission, created how ; certificate of incorporation filed, 2548. fee for charter, 2549. not tiled until certain amount subscribed, 2.549. subscriplion books opened, when and how, 2.551. crossing highways; how accomplished, 2568. company must provide new road, etc., 2568, 2570. must not obstruct highway, 2509. road may be turned, 2570. damage paid, when, 2571. old road continues till new, built, 2572. damages caused by construction, etc. ; action barred, when, 394. delivery of freight; lime limit for, after receipt, 1100. demurrage : rate of, fixed by corporation comnnssion. 1100. depots: abandonment of. liy railroad prohibifed. when, 1098. erection of, required by. corporation eoumiission, when, 1007. repairing, required by corporation commission, when, 1097 (2). union, required by corporation commission, when, 1097 (3). directors of; chosen how, 2552. numbei- of. 2552. term of. 2.552. discriminating; against connecting lines: misdemeanor. 3751. against A. & N. C. railway ; misdemeanor. 3750. venue of action for, 3750. in favor of or against any person, etc., fined, 3749. prevented by corporation commission. 1095. 1.349 IXDEX. RAILROADS— niniission. 20(i(i. served witli ]ietition for condenniatinM. 20011. merger of. bow accmnplislu'd. 2574. new company, bow managed. 2574. negligence: liability for. 2011. 2024. 2(;2S. 20:;i. 204.5, 2040. .Se<' .Vegligence. officer, etc. : Mp]i(iii\ted. liow. 255:!. conspiring with, to enilie/./,le : felony. ;il04. venue of action .■ig.ainst. 34o:!. :!4(M. cniliezzling company's property; felony, .3403. ]ila42. sclietlule of; p\ililislu»(l by connnission, 1109. posted in depot. 20.'!(). prima facie evidence of wb:it. 1112. short haul, must not be greater than long haul. 1107. rebates to shippers prevented by corporation commission, 1(195. refusing to obey regulations relating to trackage, .3751. right of way; condemnation of, 2.57.5-2.599. See Condenniatinn Pnicccdlngs. action for damages for. barred when. 394. no title to. gained bv adverse iiossession. 3.SS. width of. 2.597. rolibing crew or passengers of train : felony. :i7il5, 3700. rolling stock, etc.. conditional sales of. nmst lie registered. 984. subject of conditional sale, nmst li<' niarkeil. 984. route of. changed, how. 257;'.. coiitribiitors. etc., reimbursed, when, 2573. sale of. under mortgage, etc.; restrictions on reorganization, 12;!8. schedule of rates; authenticated for evidence in court. 1112. of trains. 2011. second-class passenger riding first after forbidden; misdemeanor. 3701. separate a<'commodations for the two races reriuirecl of. 2019-2022. shooting or throwing at cai's or locomotive; misdemeanor. 3703. INDEX. RAILROADS— (Wi^Z/iMa/; sidetracks required to be i-onstructed, wlieu ; liiuitatiou, 1097 (Tii. speed of trains luodifled by corporatiou commission ; procedure, lloi, nni state owning interest in, reports to wboui. 3595. stations establislied and depots built by order of. 1097 (J. ;ji. reiiuired to lie changed by corporation commission, when. 1ii!)7 C-). stockholders in ; liability of, 2550. fiduciaries holding stock not liable, 2557. IJlcdger liable, how. 25.57. rights of. ou merger with another road, 2574. stock in ; paid for. how, 255-1. failure of stockholder to jiay ; effect, 2554. subscription to. counties may make. 2558-2502. See Elections. bonds for, how issued; terms, etc., 2501. taxes for payment of. levied and collected, how, 2.502. must be repaid if road abandonetl. 2573. storage charges fixed by eorixiration conunission. 1100. taxes are a first lien on property of. 2805. tickets ; may be refused to intoxicated person. 2025. sold by scaliiers ; misdemeanor. 3704. unused tickets redeemed, how, 2027. trains ; operation of, 2611-2017. cars arranged, how, 2612. arranging passenger ahead of baggage, etc. : misdemi'aiior. ;;74'i fast mail trains authorized, 2614. local trains required, 2614. fuel may be seized for, how, 2617. requirements as to paying for, 2017. run on scIumIuIc, 2011. schedule publishwl. 2611. shooting or throwing at ; punishment. 370.3. transport freight anil passengers, 2011. what, run on Sunilay. 2013, 2014. violating Sunda.v law ; misdemeanor. 3S44. transportation over, nuist be provided corporation conunission. 110.5. union depot required by corporation commission, when, 1097 (3), right of eminent domain for, given to, 1097 (3). waiting rooms: separate, required for white and colored r.\ces. I(ill7 i4i RANGER : register of deeds acts as, 2833-2835. RAPE: assault with intent to commit, felony, .3038. carnal knowledge; of man's wife by personating husband; felony. 3024, of virtuous female child between 10 and 14 : felony. 3348. defendant convicted of assault ou indictment for, 3208. defined, 3637. evidence in action for, need not show emission of seed, 30.">9, REAL RROPERTY ; acre of land, what is, .3005. action: by personal representative for damages to, 1.59, 100. to recover possession of, 159, 100. See E.jeclnKMit. quiet title to. 1.589. remove cloud from title, 1.5,89. adminisi ration sales of. 08. SO. 171. what proceeds from, realty, 49. what personalty. 48. aliens may take and hold lands. 1,82. boundaries established by processioning, 325, :!20. .328. 13.52 INDEX. REAL PROPBItT,r— coj/ tin ued : color of title. See Color of Title. coudemuation of, for right of way, 2580-2598. See Coiuleiuuation Proceed- ings, contracts relating to, must be in writing, wlien, 97G. controversy over, arbitrated ; award as flnal judgment, 1073. conveyances of, 94G-1O40. See Conveyances. fraudulent. See I'raudulent Conveyances, corporations; convey, how, 1005, 1130. may own land, 1128 (4). costs in action concerning ; judgment, 12G4, 12GG. deeds for, burut or lost. See Burnt and Lost Records, defined, 2831 (G), 2851. descends how, 155G. See Heii's. description of, vague in certain particulars, not fatal, 048. devises ; construed, how, 3138-314G. See Wills, entries of ; how made, 1707-1712. See Grants, estate held in, 1578-1590. See Estates, evidence ; fltting land to description, 1G05. title of record competent, 1.59G-1614. See Evidence, execution against, 627. justice can not issue, 2030. exempt from sale under execution, G85. forcible entry and detainer punished, how, 3G70. foreign corporations may deal in, 1193. forfeited to state, how recovered, 845. grants of vacant land, 1G92-1757. See Grants, guardians; sales and routings by, of ward's, 17SS-1790, 1798-1801. homestead allotment. See Homestead. husband can convey, when wife a lunatic, free of her dower, 959. idiots, etc. ; land of, sold, 189G-1S98. See Idiots ; Inebriates ; Insane Per- sons, injury to houses, fences, etc. ; misdemeanor, 3G73. judgment by default final in action for, when, 55G. lessee of, surrendering to other than landlord ; misdemeanor, 3682. lien on, for labor and materials, 2016. See Lien. for taxes. See Tax. limitations, statute of, as affecting, 380-389. See Limitations. Statute of. lis pendens, notice of ; effect on, 460-464. malicious injury to ; misdemeanor, 3677. can set up bona fides, \\ben, ;;'>ri77. married woman's separate, 2U93-2(.i9S, See Married Woman, partition of. See Partition, processioning of boundaries, 325, 326, 328. Iiurchase money of ; complaint and answer, 468, 480. execution for, states what, 627. judgment for, contains what, 627. religious societies : hold, how, 2672, 2674. convey, how, 2673. sold for taxes, 2887-2898. See Tax. survey of, ordered by court in ejectment, 1504. talcing unlawful iwssession of another's bouse and refusing to vacate; misdemeanor, .3685. tax sale; bought at. redeemed in what time, 2012. suit to recover, barred, 2912. title to; by adverse possession. See Adverse Possession. in question, justice has no juri.sdiction, 1419. trespass on. action for, barred, when, .395. defendant disclaiming title; effect of, 863. INDEX. UEBATES: railroiuls not allowed to give, 1090. piiuishmeut for giving, 3749, REBELLION : inciting, or assisting in. against state: felony, 34:57. ItECEIVElt: Mpiiointnient of, by what .iudge, 84G. court can refuse to malie. 848. in proceedings supplemental to execution. (179-082. in what cases, (>79-(JS2, 847, 12U3, 1205, 1219. auditing accoiuit. derli's fee for, 2773. luind given bv party moved against, none appointed, 848, bond of, 273, 849. 120.O, 1222, mortgage in lieu of, 265, surety company may give, 273. cost charged as expense, 277. claims against corporation disallowed by. claimant's remedy, 1230, exception and trial b.v ,iury, 123(t. proven, how, 1228, 1229. c-ompen.sation, 122G, 2797, corporation ; action to place same in hands of, 1199. summons served, how, 1199, court may appoint, 1203. corporation receivers; law concerning, applicable generally, when. S47 costs of receivership paid out of assets, 122G. creditors of corporation; time in which to pre.sent claims, 1228. discharged, when, 1220, 1223, dying, no action brought against cori)oratlon abates. 41."i. execution; in-oceedlngs supplemental to; rei-eiver appointed. (179. final limit for creditors to present claims. 1228. final settlement of; clerk's fee for audithig, 2773, inventory of corporate assets filed by, 122.">. .lurisdictiou of court over, 840, 1203, 12(14. more than one, ma.1ority may act, 1223. notified before judgment taken against corporation, 1208. orphan's estate; receiver appointed for, when, 1811, 1813. not turned over by receiver, remedy, 1814, ISl.";. person refusing to witness before : punished, 1227. powers and duties of, 1222, 1227, 1229. Iiroperty of corr.oration ; involved in litigation, sold liy, when. 1232. vested in, when, 1224. "receiver" means "trustee," when, 1222, record of ajipointment of, kept by clerk, 91,"i (22). reports by, made to court, when, 122."). several; majority may act. 12"23. substituted as ]ilaintiff in iiendhig actions. 1231. sunnnons sei-ved how, in action for corporation receiver, 1199. supplemental proceedings: appointment of, (579. tax on Iiroperty in hands of, collected, how, 2.802, '2879. undertakings of, 272, 27.3. 849, 1222. when can he appointed, 079, 817, 12ii:', 120."i. 1219. ItEC(X;XIZANfE: See Bail. Criminal .Vdien. KEC01!1>.\IU. WRIT OF: .■lulhorized, .")84. Iiond for costs gi\-en liefore, issued, wlieii. (IdC. KKCOKDS. IlIiKXT AX1> LOST: 8ee Burnt and Lost Itecerds. 1 :c,4 INDEX. RECORDS, PUBLIC: authentication of, 1(;1G-1619. See Authentication of Reeoi-ils and Papers books for, furnished, how, 89G. burnt and lost, revived, etc. See Burnt and Lost Records. kept by clerk, 915. by register of deeds, 2057, 2091, 2(J57. secretary of state, 1139, 3015. larceny of, 3508. obliteration of ; misdemeanor, 3508. register of deeds copies and indexes, 2061, 2GC4, 2065. REFEREE : administers oaths, 521. appointment of, 520. contempt ; jiower to punish for, 942. duties of, 521-525. See Reference. how chosen, 520. powers of. 521, 522. See Reference. qualifications of, 520. REFERENCE : compulsory, when, 519. c-onsent to: when allowed, 518. costs in, adjudged, 1268 (6). decedent's estate, claim in favor of or against, settled by, 91, 92. Iiroceeding impeached for fraud, 92. defendant awarded inquiry and account by, when, 543. issues submitted to, when. 518, 519. .iudgnient on referee's report, 524, 525. jui-j- trial still allowed, 519. referee ; duties, powers, etc. See Referee. fee of. taxed against whom, 1268 (6). report of referee contains, what, 525. effect of, 525. exceptions to, filed, 525. only stating facts : effect, 525. when and to whom made, 524. testimony reduced to writing, 523. witnesses attending, entitled to fees, 1299, 1301. REGISTERED NURSE: See Volume II. register of. kept by clerk, 915 (27). registration of, clerk's fee, 2773. using title of, when not licensed ; misdemeanor, 36.56. REGISTER OF DEEDS : annual report of. to county commissioners, 1380, 1.381. liond of. :i()l. 3(iS. clerk ex ollic io to board of commissionei-s ; compensation. 1324, '2606. cuunly olliccr's annual reports registered by. 1382. county treasurer demanding moneys of; effect of refusal. 1."^9S (3). 1407. (•\ist(i!)0, .■}592. keep indexes required by law ; misdemeanor, 3000. pay over public moneys ; penalty, 1383. settle on notice from finance committee; penaltv, 1392. fees of, 698, 2770. homestead allotments registered by, 698. lien, record of, kept by, 2057. marriage license issued by, when, 2088, 2089. penalty for issuing wrongfully, 2090. record of, kept by, 2091. penalty for failure to keep, etc., 2092. mortgages ; duties as to releasing and discharging, 1046. oath of. 2357, 2358, 2360, 2652. office ; burned, certified copies of records, evidence, 327. certified copies of records registered, how, 327, 328. when open, 2654. where located, 2653. registration of instruments. See Registration by Register of Deeds, seal of office, 2649. provided by county commissioners, 2649. strays ; duties as to, 2833-2835. swearing falsely to statement required by law ; misdemeanor. .3605. tax lists made out by, 2668. vacancy in office of. filled by county commissioner.*. 1.321, 2051. REGISTRATION : of conveyances, etc. See Registration by Register of Deeds. nnr.ses. See Registered Nurse. Iiharmacists. See I'harmacists. pliysici.nis and surgeons. See Physicians and Surgeons. Ir.-iilemarks. See Trademarks, voters. See Elections. REGISTRATION BY REGISTER OF DEEDS: burnt or lost instruments ; copy may be registered, 328. ,337, 338. certificate of, attached to copy, 2057. clerk ; adjudicates probate and makes order of, 999, 1001. hands to register instruments for, 2655, 2656. Connor act, 979-981. errors in. corrected how, 1008. evidence; records or certified copy competent, .327. .337. .")69, 9RS. 1.-.9R. lOII. fees for, 2776. filing for; time of. indorsed, 26.58. inslnnnents autliorizcd to be registered — agricultural lien nti crops, 20.52, 2057. ai)prentic(''s indenture, 20.". one county to another, 425-428. See Venue, Civil Action. transcript to other county, when. 428. subpoenas issued from what county on removal. 1042. RENT: a))p(>rtioned, how. when estate terminated by death, etc.. 1987. 1988. building damaged, surrendered by tenant, what due, 1992. landlord's remedy for noni)ayment of. See Landlord and Tenant. demand for, not necessary, when, 1983. reasonable ; recovered when no contract. 1980. parol reservation evidence of, 198G. REPLY : action for penalty ; reply of fraud to plea of release. 1521. court may order made, when. 485. frivolous ; judgment thereon, 560. insufficient ; may be demurred to, 486. may l>e made to part., and dennn-rer to part, 485. time of filing, 484. • when made and what contains, 485. RESISTING AN OFFICER : l)unishment prescribed, 3700. RES .lUDICATA. pleaded by supplemental ]ilca. when. 511. RESTITUTION : appellate court may order, when. (;(l5, 1495. defendant, defending after j\idgment, receives, when. 449. j\idgnient of, in ejectment cases. 2009. owner of property entitled to, on conviction of felon. ;tl.53. RESTORATION TO CITIZENSHIP: decree of, 2079, 2680. hearing on )ietitiou, 2078, 2080. evidence necessary, 2078. petition for. 2075. 20,S0. liled, when .■md wlicrc. 2070. nollcc of. given, 2077. prcMC(lni-e after imrdnn or suspended judgment. 2680. i:;.-s INDEX. REVERSIONER : liable for betteriiieuts paid by tenant for life, OoO. redemption of land from tax sale by, 2S59. remedies of, against tenant for life or for .years, 158"), ]!)S!), 28.j'J. tenant for life has action against, when, 158(i. REVOCATION: apprentice's indenture, 1!11, 190. eonyeyance of future interest in property reyoked, buw . I(i4.". letters : of adoption, 179. administration and testamentar.y, .31, 34, .3.5. 37, 38. guardianship. 1774, 1782, 1783, 180G. wills ; how revoked. 311.5. b.v marriage, when, 3110. not reyoked. 3117, 3118. REWARDS ; governor may oft'er, for fugitive from .iustice, when. 3188. payable, how, 3188. RIGHT OF WAY: See Condemnation Proceedings. RIVERS AND CREEKS: See Volume II. animal dead of contagious disease not thrown near. 3298. county commissioners appoint commissioners to open, 1318 (17). di-ainage of, by canal, etc. See Volume II. inspected when water supply drawn from. 3046, 3047. obstructing; b.v felling trees, etc., misdemeanor, .3382. See Obstructing. dams, races, etc., 3381, 3078. free passage of fish in, 2401-2464, 2473, 2474, 2479. navigation, 2443, 3553, 3559, 3501. watercourses, generally, 3375, 3376, 33S0, 3382, 3382a. refusing to comply with requirements to drain creeks, etc.. misdemeanor. 3377. sewerage not discharged in, when, 30.51. supervisors failing to establish high-water marks at fords ; misdemeanor. 3782. throwing sawdust in ; misdemeanor. :l:>S2a. ROADS : already laid out. declared public. 2081. api)eals in matters concerning. 2683, 2086, 2690. bond given. 2090. trials ; and ajipeal to supreme court, 2690. automobiles: speed of on. regulated. 3793. bridges across : erec-ting and repairing. 2097-2705. See Bridges, cartways ; established b.v supervisors. 2083. t-hanged or discontinued, how, 2094. .lury lays off and asses.ses damages, 2086, 2689. petition and notice. 2686. timber roads allowed for five years. 2094. width of. 2080. causeways: width of. 2082. changed : when. 2092, 2693, 2094. overseer's duty in regard to. 2692-2094. church roads ; established by s\iiiervisors. 2087. obstructing or altering: misdemeanor. .3784. petition for. and procedure. 2688, 2689. convicts w(n-ked on. See County Convicts, costs ad.judged. bow, in proceedings concerning. 126.8 (51. IXDEX. ROADS — continued: county eouimissioners ; duty as to, 2681, 2G83, 2684, 2691, 2602, 271.'j, apiieiUs from. See uiuler this liend. Appeals, etc. power of, over erection and maintenance of, li'.ls (Si. l'i;si, 2i;s damages; for laying out roads, etc.. appraised. Imw . utis'i, jr.si:. 26S'.i jury to appraise; number of jurors. 268.".. Jus."!, JiiMi, 2(;.s'.i. for taldng timber, etc.. for construction. 2728. hauling logs, etc. ; person paying, not liable criminally, 3778. person must repair damage in five days, 3778. procedure to enforce payment of damages, 3777. discontinued; cart\va.vs. tramways and railways, when, 2694. clnn-eh roads, when. 2688. dividing townships, how worked, 2715. drainage of, provided for, 2(i97. establishment of; by county commissioners, 1318 (8), 2681. 26.'^3. laid out, ho^^•, 2685. jury assesses damages, 2685. oath of jury, 23()0. petition for, must be filed, 2684. notice given, 2684. ferries connecting, 2681, 2691, 2708-2710. See Ferries, footways erected by prescription, 2(j9r). gates; erection of, across cartways, etc.. 2604. Sec Oates. across roads, 2711. leaving open or injuring, penalty. 3781. hands to work on. See imdor this head. Worlving, etc. interfering with making ; misdemeanor. 3784. laid out. how. 268,"), 2()S6, 2689. mile-posts erected. 2723. overseers; ai)pointed li.v order of suiiervisors. 2714. 271."i. duty in changing roads, 2692, 2693. in tlie erection of footways, etc., 260."i. footways erected by prescription, when, 2(i9."). liable; for neglect, 271.5. for failure to make reports. 2717. may assign tasks to hands, 2719. mile-posts erected by, 2723. failure to erect, penalty. 2723. neglecting duty ; penalty, 2724. 3785. regarding bridges, 2696. See Bridges, report of; required. 2716, 2717. required to serve. 2715. not required if served within two years. 271.5. resignation of, allowed in twelve months, when. 2715. signposts erected by. 2722. penalty for failing to erect. 2722. railroad crossing public; what required. 2568-257.3. Sec Kailro.ids. railway established by supervisors, when. 2686. jury lays off, and assesses damages. 2686, 2689. jietition and notice, 2686. timber; oidv allowed for five years. 2694. width of. 2680. road steamers allowed on, 2727. signposts erected. 2722. removing or defacing; misdemeanor. 3783. stock-guards must be erected, when. 2694. supervisors; justices of the iioace are board of. 2681. divide roads into sections, 2715. failing to establish high-wator marks; misdemeanor. 3782. hands allotted by. to overseers. 2715. may cxomiit frdiii mad service, when. 2726. INDEX. ROADS — continued: supervisors — continued. meetings of, where aud when, 2712. overseers appointed by ; service of order, 2714, 271.5. power of, to establisli cartways, 2683. to establisli church roads, 2687. private raih-oads, 2686, 2689. tramways, 2686. grant permission for gates. 2711. report of, to be handed grand .iury, 2713. traction engines allowed on, 2727. tramways ; established by supervisors, 2686. jury lays off and assesses damages, 2680, 2089. petition and notice, 2686. timber ; only allowed five years, 2694. width of, 2686. who liable to work on, 2725. who exempt, 2726. width of ; exception, 2082, 26SG. working ; by overseer's direction, 2721. earth needed, where secured, 2719. hands allotted for, 2715. duty of, to work, 2721. not longer than two days at one time. 2721. failing to attend and work; misdemeanor, 3779." may be given tasks. 2718. notice to. to work, 2720. 2721. failing to respond to. penalty. 2716, 3779. released from work by paying, 2721. substitutes allowed, 2721. timber needed for ; where secured, 2719. who liable to work. 2725. who exempt from work, 2726. when, 2721. ROBBERY: dead bodies, from graves, 3672. fish, from fish-nets, 2478. SALARIES: See Fees, adjutant general, 2750. attorney general, 2746, 2747. clerk to. 2746. auditor audits accounts of employees of general assembly, when. 27.35. bank examiners, 2755. board of internal improvements, 2758. secretary to, 2737. board of public buildings and grounds : wages of laborers, 2762. laborers employed by, entitled to leave with pay. 2703. salary of secretary, 2737. commissioner of agriculture, 2749. paid from what fund, 2749. commissioner of labor and printing: assistant, 27.53. committee to examine treasurer's and auditor's books : compensation. 2740. contested elections ; how emoluments of office recovered, 835-837, 842, 844. who gets emoluments of office pending hearing, 8.36. coi-poration commissioners and clerks, 27,')4. dl.spensary commissioners, 2075. general assembly ; clerks and doorkeepers of. 2730, 2732, 2734. committee to examine treasurer's and auditor's books, 2740. copyists of bills, 2731. members of, 2729. Rev. Vol. 1—82 1361 INDEX. SALARIES — continued : governor, 2736. executive clerk to, 2738. private secretary to, 2737. insurance commissioner ; and clerks to, 2750. judge, superior court, 2765, 2706. justice, supreme court, 2764. allowance for clerk, 2764. keeper of capitol, 2800. marshal of supreme court, 2770. mayors of touus, 2925. municipal officers, 2!.)25. ■ oyster commissioner and assistant, 2403. oyster inspector, 2404. payable monthly, 2772. paymaster general ; payable out of what fund, 2751. presidential electors, 2761. quartermaster general, 2752. reporter of supreme court, 2771. secretary of state ; and clerks to, 2741. indexer of session laws, etc., 2733. officer required to make returns to, 2743. state auditor ; and clerks to, 2744. state board of elections, 2760. state librarian, 2748. assistant, 2748. state standard keeiier, 2759. state treasurer ; and clerks to, 2739. superintendent of public instruction : and clerks to, 2745. towm officers, 2925. SALES : administration, of personalty, 01-07. See Administration. of realty, 08-86. See Administration, animals with contagious diseases ; misdemeanor, .3295. attached property sold pendente lite, when, 772. auctioneers, 217-221. See Auctioneers, certain birds in certain counties ; misdemeanor, .3472. conditional ; must be in writing and registered, 983, 984. corn ; sale of less than luishel at night ; misdemeanor, 3809. contingent remainders, how sold, 1590. corporate stock for unpaid assessment, 1170. cotton : buying or selling less than bale at night : misdemeanor, 3813. buyer of less than bale failing to keep records ; misdemeanor. 3812. purchasing, baled, not inspecting, no reduction from price on doIi\('r.\-, 3811. cotton-seed meal ; sale of. regulated, 3814. crops seized and sold by person making advances, 20.54. dispensary sales regulated. 2(i77, 2(t77a. dynamite sold without special license; misdemeanor, 3817. estates of idiots, inebriates, etc., sold, when. 1S96-189S. execution sales, 641-651. See Execution Sales, fertilizers; sale of, regulated. 3818-.3S22. See Fertilizers; also Volume IT. after being condemned ; misdemeanor, 3820. containing substance deleterious to plants; misdemeanor. 3.818. in violation of regulations; misdemeanor, .3821. without tags; misdemeanor, 3822. food stuffs; adultornloil ; misdemeanor, .3444. See Food; .-ilso Volume II. butterine. withdut label, .0828. concentrated feeding stuffs, without being insjiected, ,3807. fish, preserved or fumigated, as fresh ; misdemeanor. .3444. 1362 INDEX. SALES — cdntinved: lood stuffs — continued. meat of diseased animal ; misdemeanor, 3442. niisbranded ; misdemeanor, 3020, 3444. oleomargarine, without label, 3828. oysters ; )3reserved, as fresh ; misdemeanor, 3444. not culled ; misdemeanor, 2392. sample of, to inspector; refusing to sell; misdemeanor, 34.52. sausage, adulterated ; misdemeanor, 3444. futiu'e delivery ; contracts lor, prohibited, 3823, 3824. goods sold, fraudulently marked or branded ; misdemeanor, 38.50. guardian's sale of ward's estate, 1778, 1788, 1798-1801. See Guardian, hides of otter, muskrat, etc. ; sold by nonresident ; misdemeanor. 3467. innkeeper's sale of baggage for board, 2038. judicial sales ; days appointed for, G43. hours of sale, G44. postponed from day to day, G45. proceeds of, collected on motion. 1524. purchaser at ; deemed owner when sale confirmed, 1525. who makes deed to, 051. tax on land sold at, must be paid as cost, 2857. liens satisfied by sale, how, 2017, 2038. liquors. See Liquors, live stock ; butchers buying, must keep certain rec'ords, when, 3803. failure to keep record ; misdemeanor, 3803. markets and sales of produce regulated. 2928. measures for sale of grain, etc., .3063-3067. meat of diseased animals ; misdemeanor, 3442. mortgage sale, under power ; clerk makes, when. 266. advertisement. 641, 1040, 1042. cost of, 641. description of property in, 1043. time posted, 1040, 1042. barred, when, 1044. clerk appoints person to make, when, 1037. made by agent; valid, 1035. by personal representative, when, 1031. former sale under power, validated, 1032. surviving mortgagee makes, where more than one, 1033. taxes due must be paid from proceeds of, 2857. municipal property, sold how and by whom, 2978. partition sales. 2.506-2520. See Partition, perishable property, when, 598, 772, 2638, 3039. 3040. See Perishable Property, poisons, illegally ; misdemeanor. 3655, 3829. public, in cities may be held, when, 644. railroad sale of unclaimed freight, 2637-2639. strays sold by order of register of deeds, 2835. See Strays. tax sales, 2884-2S98. See Tax. tobacco sales at warehouses, 3042-3044. See Warehousemen, violation of regulations concerning, 3S03-3831. See Crimes and Punish- ments, warehouseman's sale for storage charges, 3036-3040. See Warehousemen. SALOONS : See Elections ; Liquors. SAWDUST : throwing, in streams in certain counties; misdemeanor, 3382a. SCALES : See Weights and JMeasures. INDEX. SCHOOL BOOKS: See Volume II. selling, at juore than contract price ; misdemeanor, 3834. SCHOOL CENSUS: See Volume II. taking or returning, falsely; misciemeanor, 3830. SCHOOL-HOUSES : See Volume II. burning of, or procuring the burning of ; felony, 334.0. SCHOOL OFFICERS : See Volume II. failing to quarantine against certain diseases ; misdemeanor, 3440. .3441. SCHOOLS: See Public Schools; also Volume II. SCIRE FACIAS: writ of, abolished, 820. See Contested Elections; Quo Warranto. SCRIP ; accepting as money, issued without authority ; misdemeanor, 3711. issuing, to circulate as money; penally, 3711. non-transferable ; employer issuing, to laborers ; misdemeanor. 37.30. SEAL: See Volume II. corporation's power to adopt, 1128. county commissioner's power to adopt a coimty, 1318 (24). defined, as to seal of office, 2831 (8). execution sent out of county must have. 61G. grants ; seal to. lost, how replaced, 1740. instruments luider seal ; action on, barred, when. 391. notary public acts under, 2349, '2352. probate ; seal of officer attached to, 993. register of deeds ; seal of office, 2049. standard keeper's seal. See Weights and Measures. summons should have, when, 431. SEAMEN : appeal in criminal actions concerning; procedure on, 3558. enticing away from vessel ; misdemeanor, 3555. harboring, etc. ; misdemeanor, 3550. what prima facie evidence of, 3550. search warrants issued to find, secreted on premises of another. .3557. SEARCH WARRANT : birds in transit, game warden issues, for, when, 1809. contains what, 3104. form of, 3103, 3104. issued how and for what. 1809, 3103, 35.57. seamen deserting and secreting; issued for, when, 3557. procedure on, 3558. SECRETARY OF STATE : See Volume II. assistant to, who indexes session laws, etc. ; salary of. 27.33. bond of, 287. surety company may give. 272. clerks; number and compensation of, 2741. commissioner.s of affidavits; appointment of, certified to clerks, 928. list of, published in public session laws, 929. compensation of officers required to make returns to, 2743. INDEX. SECRET .UiY OP STATE— conlhiued: eoipoi'ations ; aiimial list of new, published by, 1244. certificate of incorporation recorded by, 1139, 1241. fee for recording, ]234. amendments to, recorded by, 1175. taxes for charter, 1233. created by general assembly, must file act creating with, 1235. dissolution of ; judgment of, filed with, 1211. foreign; duties with reference to, 1194. nonuser of charter reported to attorney general by, 1246. process agent of, not appointed, secretary acts, 1243. reorganized, files certificate with, 1241. reports of ; to secretary of state, 1152. special, called for. when, 11.53. fees of; for various services, 1194, 1233, 1234. 2742. for corporation charter, amendments, dissolution, etc., 1233, 123 turned into state treasury, when, 2741. grants issued by, 1728, 1729, 2378, 2596. corrected by, how, 1738-1742. plots of, filed by, 1734. secretary will not issue, when, 1727. oath of, 23(iO. railroads, duties with reference to charter of, 2.548, 2549. merger of, duties as to, 2574. real property belonging to state granted to, by, 2596. reports to attoi-ney general corporations not using charter, 1246. •salary of, 2741. trademarks ; duties as to, 3014, 3015, 3017, 3024. See Trademarks. SECRET POLITICAL SOCIETIES : person .ioining oathhound, misdemeanor, 3439. SEDUCTION : defined and punishment prescribed, 3354. marriage a bar to prosecution, 33.54. unsupported testimony of woman not suflncient, 33.54. SEED : See Volume II. number of pounds of different kinds of, to bushel, .3060. SEIZIN : conveyance to use ; livery of, not necessary, 1584. defined as to inheritances, 1556 (r. 12). livery of, supplied Iiy ju-obate and registration, 979. SERVANT : See Master and Servant. SETTLE5II0NT : administrator's, 144-155. See Administration. county officers make, annually 1380, 1392, 1407. guardians. 1807-1809. See Guardian. nuirriage, void as to creditors, when, 963. sheriff's, of taxes, with county. 1376, 1.380, 2812. See Volume II. with state, 2869, 2882. See A'oluine 11. surviving partner's, 2546, 2547. town tax collector's. 2072. SET-OFF : defendant entitled to, in enforcement of lien, 2032. pleaded by answer. 479, 482. 1365 INDEX. SEWERAGE : See Volume II. allowing discharge of, into water supply ; uiisdemeanor, 3857-3861. SHEEP: sheep-killing dog; failing to kill, after notice; misdemeanor, 3304. stray ; taken up and advertised, 2833. See Strays. SHERIFF : See Tax ; also Volume II. actions against. See under tliis head, Liability, etc. for trespass uuder color of office, barred, when, 397. on bond, barred, when, 393. amercement of — for failing to endorse process, 3149. execute process before going out of office, 2820. furnish grand jury with list of liquor dealers, 2827. make return of process, 2817. pay over moneys collected, 2821. for farming out office. 2828. making false return of process, 2817. releasing prisoner without bail, 3227. judgment nisi rendered ; notice of, given to. 2817, 2S1S. arrest and bail; duties in. "See Arrest and Bail, Civil Action, bail liable to sheriff, when, 75."). deposit in lieu of bail : sheriff's dutj-, 7-t4-747. sheriff ; exonerated when bail adjudged sufficient. 743. liable as bail when defendant escapes, 749, 7.50. may take bail, 748. arrest of accuse1(l. death penalty executed by, how. 328.'-), 3286. 1366 INBEX. SHERIFF — continued: defined, as to collection of taxes, 2851. deputies of, administer oaths, when, 2359. duty of, as to ai'iest and bail. See Arrest and Bail, attacbuient. See Attachment, claim and delivery. See Claim and Delivery, execution sales, 629, 631. See Execution Sales, jail. See Jail, jui-y. See Jury. process. See Process. to adjourn court In absence of judge, when, 1510. allot ex('mptions to debtor, 687, 695. assign bond to keep prison bounds to plaintiff in arrest and ball, 1339. assign dower, when, 3089. collect taxes. See Tax. confine prisoners in jail of adjoining county, when, 1349, 1350. destroy gaming tables, 3720. execute process, 433, 2817-2819. furnisfi list of liquor dealers to grand jury. 2827. furnish to clerk list of poll taxes paid, 3400. guard jail against lynchers, etc.. 1345. hang persons sentenced to death, privately, 3285, 3286. hold election on municipal railroad subscription, when, 2560. indorse process, 433, 3149. make deed for property sold, 651, 2905, 290G. notify justice as to diamond-back terrapin caught, etc., 2370. obey commitment from another county, 3603. pay over money collected to proper person, 2821. publish list of delinquent taxpayers, 2826. receipt for process, 2816. return process, 433, 2817. sell stray animals, when, 2835. take bail from prisoner, when, 3208. warn trespassers on public lands, 3746. election of, 2808. embezzlement by, of funds, etc.. of office ; punishment. 3408. escape; allowing prisoner to; fined and removed, 1349, 3577. apprehending, duty to guard, 1345. liability of sheriff for, in civil actions. 749, 2823. action barred, when, 397. execution ; duties as to. See Execution ; Execution Sales, allowance made for keeping stock under levy, 637, 638. exemptions to debtor ; allotted by, 687, 695. conspiring to inidervalue or overvalue; misdemeanor, 3.585, 3586. failing: to attend tax sale; misdemeanor, 3790. execute process before going out of office ; penalty. 2820. furnish clerk list who paid poll tax ; misdemeanor, .3400. furnish names of liquor dealers to grand jury : penalty, 2827. give receipt when poll tax paid ; misdemeanor, 3402. indorse process, 43.3. 3149. obey connnitment from another county, etc. ; misdemeanor, 360.3. pay money collected to proper person : penalty. 2821. perform duly : misdemeanor. ,3576, 3592. publish list of delinquent taxpayers ; misdemeanor, .3.587. return jirocess. or making false return; misdemeanor. 4.33, 3004. writ of habeas corpus ; penalt.v. 1S3G. writ of venire facias ; misdemeanor. 1975, 3602. settle for moneys collected by ; penalty, 1.383. 1.392. 1407. gn Tiling tables ; duty of sheriff to destroy, 3720. habeas corpus, disobeying writ of: consequence.s. 1834, 1836. insolvent debtors ; duties as to. See Insolvent Debtor. 1367 INDEX. SHERIFF— emit iniicd: jail; custody and care of by, 2824. See .Jail. must be guarded, when, 1345. judgment nisi against, when, 2818. See Amercement, jurors ; drawn by, when, 19U3. See Jury. summoned by, 1907, 1U08, 1973-1975, 3002. liability of ; to amercement, when. See Amercement. for deposit placed in hands in lieu of bail, 745. escape of prisoner in civil action, 749, 750, 1349. failing to use due diligence to collect claim, 280. improper undertaking taken in claim and delivery. 794, 790. not accounting to county treasurer, 1407. releasing ijrisoner surrendered by bail, etc., 3227. selling property at tax sale illegally, 2910. no liability for improper arrest of delinquent taxpayers, when, 2878. license issued by ; to auctioneers, 217. to liquor dealers, 2000. liquors ; sheriff's duty to enforce law as to. 3533, 3534. license issued by sheriff for sale of, when, 2060. list of dealers in, furnished grand iurv by, 2827. oath of, 2358, 2360. perjury of, 3605. prisoners ; confined in improper apartments by ; misdemeanor, 3660. farmed out, governed and disciplined by, 1354. See Prisoner. must be safely kept by, 3231. transferred to successor by indenture, 1348. process : service of. See Process. falling to return, or malving false return : conse(]uences. 1836. 1075, 2817. 3602, 3604. See Amercement, qualifications for office of. 2809. recognizance taken by. in his name as sheriff, 2829. removal of; for allowing prisoner to escape, 3577. does not remove as tax collector, 3577. when convicted of misdemeanor, 2811. when fails to give justified bond. 281.3. reports to county commissioners, 1380, 1381. resignation of, 2810. county commissioners fill vacancy. 2810. sales of property by. See Sales. title made to purchaser by whom, 051, 950, 951. 2905, 2906. strays ; sale of. by sheriff, when, 2835. summons against, executed by whom, 1."i31. swearing falsely to statement reiiuired by law: misdemeanor, 300.5. tax ; duties in collecting. See Tax. compensation to sheriff for collecting. 1376. 2,S83. lists ; sheriff refusing to surrender : misdemeanor, 3788. selling property not liable for, 3790. settlement of, 1376, 1380, 2812. 2869. 2882. See Volume II. vacancy in office of, how filled, 1321, 2810, 2811. 2813. SHOOTING : See Crimes and Punishments. SIDE-TRACKS : corporation connnission niav require cniistructioii of, wlion ; li mi I, -it ion. 1007 (5). SIGNATUUK : defined, 2831 (10). obtained by false ))retense, person offending, guilty i>f felony, .34:?3. 1368 INDEX. SIGN-POSTS: duty of overseers to erect, on public roads, 2722. person removing or defacing ; misdemeanor, 3783. S[>ANDEK: See Libel. action for, barred, when, 398. answer in action for, contains, what, 502. burden of proof in action for, 501. charging innocent woman with incontinency ; misdemeanor, 3040. civil action for, 2015. complaint in action for, 501. costs iu civil action for damages for, 1264, 1260. SLAVES: conveyances or gifts of land to ; certain ones validated, 949. marriage between, validated, 20S5. SLEEPING-CAR COMPANIES : corporation commission's duty and power to investigate, 1064, 1066-1071. SOLICITORS : civil term not attended by, unless interested in civil docket, 1508. contempt proceedings ; duty as counsel for court, 939. discharged by judge when intoxicated, 1499. competent attorney appointed to act ; fees, 1499. duty of ; as to estate of orphans, 1811-181.5. to attend the taking of depositions, when, 1655. discharge witnesses as cases disposed of, 1.305. e.xamine books of clerk of superior court, 897. file names of witnesses entitled to prove attendance, etc., 1305. furnish accused with bill of particulars, when, 3244. furnish grand jury information with regard to lynching, 3233. move for judgment against commissioners for taxes, when. 2814. order post mortem examinations, when. 3152. pass on bills of cost in criminal cases, 1256. prosecute action for injury to bridges, 2705. penalty against road overseers, when. 2714. penalty for violating rules of corporation com- mission. 1092. on injunction bond of railroad staying decision of corporation commission, 1084. officer for allowing prisoner to escape. 2S22. for releasing prisoner on insufficient bond. 3227. entitled to notice in habeas corpus proceeding. 1844. fees of. 1084, 1288. 2767, 2768. oath of, 2357, 23.58, 2360. SPECIAL PROCEEDING : See Civil Procedure. adminislration accounting cnm))elled by, 104-131. See Administration, administrator's final settlement, 144-155. See Administration, adojition of minor children by. 17-1-181. amendment to pleadings in. 717. See Amendment, appeal from clerk. 110, 586, 012. duty of judge. 013. how and when taken, 010, 611. no bond for cost required, when. 119, 580. from judge to supreme court, 587, 588. ai)prenticing infants, 184-200. See Apprentice, boundaries of land estalilished by. .325, .326. 328. burnt and lost records perjietuated liy. 339. 1369 INDEX. SPECIAL PROCEEDING— con«Mi«e(J; civil proceilure, cluijiter on, applicable wlien, 710. commenced, how. 711. commissioners appointed in, report wlien ; reports confirmed, 723. no report set aside for trivial defect, 724. appointed to sell property, must settle, when, 725. complaint or petition : filed, wben, 714. not filed in time, nonsuit, 71.'5. condemnation proceedings. See Condemnation Proceedings, costs adjudged bow, 1255, 1272. See Costs. in allotting widow's year's allowance, 1208. condemnation proceedings, 1269 (3). partition proceedings, 12GS (7). credits on judgments enforced by, 579. defenses pleaded in ; duty of clerk, 717. defined, 348. demurrer to evidence in, 539. devisee, beir, etc., bring, for contribution, 58. distributee, etc., absent seven years, next of kin begins, 151. docket kept by clerk, 915 (7). dower of widow assigned by, 3087-3090. See Dower, execution ; leave to issue, after three years, (120. ex parte petition ; procedure, 718, 719. fraudulent conveyances of decedent attacked by, 50. 72, 73. homestead ; allotnieut, exceptions to, by creditor, 699. reallotnient of, by, 691. idiots, inebriates, etc. ; guardian for, appointed by, 1890. insolvent debtor brings, for discbarge, 1915-1949. issues of fact in, transferred to civil issue docket. 529, 586, 717. no undertaking for costs, 529, 586. issues of law ; decision on, appealed from, 586, 610-613. judgment in. approved by judge, when, 720, 722. judgments destroyed, perpetuated by, how, 332. legacies recovered by, 144. legitimating bastard child by, 263. 264. mill owner's right of, to dam water or build race, etc., 2131. mills established by, 2122-2i:i(). See Mills, Public, name of person changed by. 214(;-21."iO. orders in, approved by judge, when, 720, 722. partition of property by, 248.5-2.'J20. See Partition, petition filed, when, 714. See Petition. not filed in time, nonsuit, 715. processioning of land by. .325, 326, 328. remedies by, 346. report of commissioners in. not set aside for trivial defect, 724. sale : of estate of ward by, 1798. estate of idiots, inebriates, etc., 1806-1898. land of decedent by, 68-80, 79, 80, 1.30, 131. sunnnons in, contains what, 712. return of. 713. service of, within what time, 71.3. supplemental, to enforce execution, 667-684. See Supplement;! 1 Proceedings, surety in danger of loss, remed.v by, .33, 1783. surveys and iilots; correction of errors in, 17.38. time to file jileadings enlarged, 716. widow's year's allowance allotted by, .3096-311(1. wills; i)r"()bate of. by, 3T22-31.34. proving contents of, when lost, 331. SPIPvIXrOUS LIQUOUS: See Liquors. INDEX. SPUING : polluting, a misdemeanor, 3456. STANDARD KEEPER : aijpointiiieut : of county, 3072. of state, 3008. bond of county, 300, 308. couiijensation of, 2T.'>9, 2780. duties of county. 3073, 3074. of state, 3009-3071. oaths of, 2357, 2358, 2360, 3072. weights aud measures examined by, etc., 3063-3079. See Weights and Measures. STATE AUDITOR : See Volume II. general assembly ; accounts of employees of, audited by, when, 2735. grant of land issued on auditor's certificate of payment, 1728. no warrant on oyster fund issued unless commissioner approves, 2422. number and compensation of clerks to, 2744. oath of, 2357, 2358, 2360. salary of, 2744. STATE BOARD OF ELECTIONS : See Volume II. members of, compensation of, 2760. STATE LABORATORT OF HYGIENE : conducted by state board of health, 3057. maintained by tax on water companies, 3057. object and work of, 3057. STATE LIBRARIAN : See Volume II. compensation of, and of assistant, 2748. STATE OFFICERS : See under name of office ; also Volume II. STATE OF NORTH CAROLINA : appeals in criminal cases, when, 3270. claims against, how prosecuted, 1537, 1538. conspiracy against, to hinder execution of its laws ; felony. 3438. costs ; state liable for. when, 1250-1263. See Costs. limitations, statute of, runs against, when, 375. party to quo warranto proceedings, when, 827, 828. property forfeited to. recovered, how, 845. rebellion against ; or aiding or abetting : felony, .3437. undertaking on appeal of, not required, 1077. STATE PRISON : See Convicts ; also Volume II. convicts farmed out. still under control of, 1358. STATE STANDARD KEEPER : See Standard Keeper. STATE TAX COMMISSIONERS : appropriation to put law concerning, into effect. 2754. assessment of taxes wrongly made, connected, how. by, 1125. back taxes, collected, how, by, 1126. clerks to, duties of, with regard to record, 1121. (■(irporation commissioners constitute, 1119. INDEX. STATE TAX COMMISSIONEatS— COT!. "in writing" ni<'ans in print, etc., when, in, 2831 (10). joint authority to lliriS31 (2). leap year; 2.Stb and 21)th of February in, all one day, 2831 (4). masculine gender imijorts feminine, 2831 (1). "month" means what, 2831 (3, 12i. 1372 INDEX. STATUTES, CONSTRTTCTION OF— continued: "oath" means wbat iu, 2831 (5). "person" means corporation, etc., in, 2831 (6). "personal property" includes money, goods, chattels, etc., 2831 (U). "preceding" means what, with reference to sections, etc., 2831 (7). "property" includes both real 'and personal, 2831 (6). railroads; chapter on, applicable to all railroads, when, 2506. "real property" means lands, tenements and hereditaments, 2831 ((J). repeal of statute does not affect actions pending, 2830. "seal" defined, 2831 (8). singular number means also plural, 2831 (1). "state" means what, as applied to United States, 2831 (11). taxation ; chapter on collection of, how construed, 2849-2851. "United States" includes District Columbia, territories, etc., 2831 (11). "will" means codicil as well as will in, 2831 (9). "written" means printed, lithographed, etc., in, 2831 (10). "year" means what, 2831 (3). STATUTORY LIABILITY : action to enforce, barred when ; e.xception, 305. STAY OP EXECUTION : See Execution. STEAMBOATS: See Navigation; Vessels; also Volume II. accident to, investigated by corporation commission, 1065. companies operating ; corporation commission's power over, 1094. 1095, 1099. discriminating between connecting lines : penalty, 1088, 3751. between persons in transportation charges; misdemeanor, 3749. freight may be carried free for certain parties and associations, 1105. long and short haul, regulations concerning, 1107. notice to bridge owners to put in draw, 2699. passengers riding first class, having second-class ticket, etc. ; misdemeanor, 3761. passes on, allowed to certain persons, 1105. penalty ; for discriminating between connecting lines, 1088. for refusing to obey orders of corporation commission, 1087. rates for transportation; filed with corporation commission, 1100. regulated by corporation commission, 1099, 1104-1107, 1109. schedule of, how authenticated for evidence in court. 1112. transportation on, must be provided corporation commission, 1105. STEVEDORE : liability of, for laborer's wages in unloading vessels, 2041-2048. license of, 2050, 2051. lien of, for unloading vessel, 2041. STOCKHOLDERS: See Corporations. STOCK, LIVE : See Live Stock. STOCK LA"W : allowing stock to run at large ; misdemeanor, 3319. damages by stoclv recovered, how, 1679. elections on : county voting ; result, 1672. carried in favor of, when goes into effect, 1675. district voting on ; result, 1674, 1675. how held, 1676. new registration may be ordered, 1677. township voting ; result, 1673. 1373 INDEX. STOCK IjAW—cmtinued: fences : built aroiiud territory, 16S3-1G8G. tearing down, surrounding stocli-law territory; misdemeanor, 3-tll. what are lawful, IGUU, 1661, 1684. See Fences, impounded stock; failure to feed; misdemeanor, 3311. any one may feed, 1082. receiving or releasing unlawfully; misdemeanor, 3310. impounding of stock ; fees for, 1679. any one may impound, 1679. unlawfully ; misdemeanor, 3309. Injuring lands by driving stock ; misdemeanor, 3321. action for damages barred in tifteen days. 3321. land owners : ad.ioiuing territory, may be included in, 1678. two or more can institute law for themselves, 167S. riding or driving, over cultivated lands; misdemeanor, 3320, 3.321. sale of impounded stock; how made, 1680. impounder misajipropriating receipts from ; misdemeanor. 3312. notice of. to o\^■ner, 1680. proceeds disposed of, how, 1680. "stock" defined in. 1681. ten-itory of ; ad.ioining landowners may be included, 1678. driving or toling stock of another into ; misdemeanor, 3309. owner can not tiirn stock outside of ; proviso, 3322. withdrawal of certain territorj' from operation of, 1675. territory withdrawing must build fence, 167.^). STRAYS : appraisal of, before sale, 2835. failing to comply with law as to ; misdemeanor, 3300. keeping; cost of, fixed by county commissioners, 28.34. license to look foi', on land of another ; effect of, 3688. owner may reclaim, how. 2834. person taking up, nmst notify owner, 2833. owner not known, must notify register of deeds, 2833. register of deeds ; publishes notice of, 2833. fee for publishing. 2833. records description of, 2833, 2835. fee for recording, 2833. sale of; by sheriff, 2S,35. notice of, jmblished. 283.5. proceeds of, disposed of, how, 2835. STREAMS: See Drainage; Navigation; Rivers and Creeks. STREET RAILWAYS ; corporation commission's duty and power to investigate, 1004, 1066-1071. discriminating between connecting lines; penalty, 1088. 3751, between persons in transportation rates charged ; misde- meanor, 3749. eminent domain; right of. given to, 2575. fenders; failing to have, on street cars; misdemeanor, 2016, ,3801. corporation commission ma.v excuse, 2616, ,3801. freight ma.v be carried free for certain parties and associations, 1105. Incorporated under general law. 1138. See Corporations, long and short haul, regulations concerning, 1107. passes over, allowed certain iierson.s, 110.5. penalty: for discriminating between connecting lines, 10SS, 37.51. discriminating between persons in transjinrtation charges. 3749. for refusing to obey orders of corporation commission, 10.S7. rates of transportation; schedule filed with corporation commission, 1109. regulated by corporation commission. 1099. 1104-1107, 1109. schedule of, how put in evidence in court, 1112. 1374 IjSTOEX. STREET UAILW AYS— continued : riglit of way of, 1133, 1571-15TG. See Condemnation Proceedings, tampering witli plant or equipments of; misdemeanor, 3G66. transportation over, must be provided corporation commission, 1105. vostibuled fronts ; failing to have, on cars, in winter ; misdemeanor, 2015, 3800. corporation commission may excuse, 2615. STREETS : mayor may sentence prisoner to worli on, 2937, 3596. no woman so sentenced, 3596. title to, not acquired by adverse possession, 389. town commissioners' duties as to, 2930. STUD HORSE: allowing, to run at large ; misdemeanor, 3323. e.xbibiting witbin half mile of religious meeting ; misdemeanor, 3705. owner of, has lien on colt, for season, 2024. SUBORNATION OF PERJURY: defined, and punishment prescribed, 3016. indictment for, substance of, 3248. SUBPOENA: See Process ; Witnesses. attorney may issue, 884. cause removed, from what court subpoenas Issued, 1642. clerk issues. 901, 1639, 1641, 184.5. served by whom, 884, 1123, 1639. conveyances ; witnesses and parties to, subpoenaed to testify, 996. corporation commission issues, in cases before it. 1070. county commissioners, power of, to authorize chairman to issue, 1318 (22). deposition ; subpoena for witness to give, issued how, 1C40, 1652-1655. duces tecum ; issued, when, 1454, 1641. compliance with, enforced when, 1454. habeas corpus ad testificandum issued, when, 18.5.5-1861. habeas corpus proceeding , witnesses before, procured by, 1845.- ,1ustice issues, 1452. party may issue. 884. returnable to special terms of court, when, 1517, 1518. service of, may be by any one not a party, 884, 1123, 1639. fee for serving, 2777. state tax commissioner's power to issue, 1123. SUBROGATION : purchaser at tax sale, to remedies of state or county, 2912. surety, to remedies of creditor, 2843. SUMMONS : See Process ; Publication, action commenced by, 359, 429, 1444. administration accounting; summons to compel, l(l(!. in proceeding to sell land for assets, 130. alias and pluries, when original, not served in time, 437. attachment and, served on garnishee, 779. service of summons and warrant by publication. 706, 770. bond required before issuing, when. 450. claim and delivery; summons issued, when, 790. condomnation proceedings ; contains; what, 2580. contains what, 430, 712. 1415. contested election ; summons in. 838. controversy over dividing fence; contains what. 1600. 1375 INDEX. SVUMONS— continual : diSL-outinuauee of action when chain of summonses brolsen, 4:58. docket Ivcpt by elerlv, 915. docketing ; clerk's fee for, 2773. fees : of clerk for issuing, 2773. of justice for issuing, 2788. sheriff, for serving, 2777. foreign corporation given twenty days to appear before justices, 1448. guardian ad litem ; bow served on, 400. issuance of, 3.")U, 429, 1444, 1447, 1449, 1450. See Process, after judgment, against one jointly indebted, 456. alias and pluries, when, 437. prosecution bond condition precedent to, 450. to several counties, 432. when, 359, 429, 1444. joint and several debtors, not all served, how judgment entered, 455. justice issues ; what contains, 144.5. See Courts, Justices', may issue to any point in his coimtj-, 1425. to another county, when, 1447, 1449, 1450. lis pendens ; ineffectual without, 401. mandamus, writ of; application for, begun by, 822-824. mortgage in lieu of prosecution bond, 200, 270, 271. partners omitted to be joined in, judgment against, how rendered, 455. return of, 430, 433, 713. 1440. See Process, must show, what, 440. to what court, when not published In time, 436. when issued ten days before term, 433, 435. to several counties, 432. within ten days of term, 434. when served within ten days of term, 435. service of : by sheriff, 2819. See Process, by copy, when, 440. publication : complete when, 444. ini action to dissolve corporation, 1109. attachment proceedings, 702, 700, 772. manner of, 443. not complete before term, when returnable, 436. time of, how computed, 888. when, 442. by reading, when, 439. from justice's court on foreign corporations, how, 1448. gives jurisdiction. 445. bow made on individuals, 439. how proven, 440. in action trying title to oflice, 838. attachment jiroceedings, 442-444, 762. condemnation proceedings, 2.580-2583, 2599. ejectment of tenant by landlord, 2003. of justices ; fees ; demanding, in advance, 1446. within what time, 1440. not necessai-v when defendant voluntarily appears, 447. not on Sunday, 2837. on coi'poralions, 440. corporation and creditors, etc., for dissolulion, 1199. foreign corporations, 1243. infants. 440, 441. insane persons, 440, 441. joint and several debtors, 4.55-459. jurors, 1434, 1438. 1907, 1908, 1973, 1974, 1970. nonresident personally, 448, 449. one personal representative, binds all. 101. partners, 455 (4). 1376 INDEX. SUMMONS— continued: service or — contlnucr], thirty days liefore teitn ; effect, 484. wlien issued witliiu ten days of term, 4.34. witliiu teu days of term, 435. witliiu what time made, 433. with warrant in attaclimeut proceedings by puhlieatioii, 7(iij, 77U. special proceedings begun by, 712. SUNDAY : See Holidays. acts to be done on, can be dene ue.^t day, 283!). arrest in civil action on, forbidden, 727. fishing on, with nets or seines ; uiisdemeanor, 3841. hunting game of any Ivind on ; misdemeanor, 34.5!). wild fowl on; misdemeanor, 3843. not counted in computing time. 887. oysters ; taking, on Sunday ; misdemeanor, 2384. unloading, from boat, on Sunday ; misdemeanor, 2394. process executed on, when, 2837. selling Intoxicating liquors on ; misdemeanor, 2077, 3.532. taking oysters on ; misdemeanor, 2384. trains run on, except as allowed by law; misdemeanor, ,3844. work in ordinary calling on, forbidden, 2836. SUPERINTENDENT OF PUBLIC INSTRUCTION: See Volume II. county ; salary of ; proviso, 2782. state ; number and compensation of clerks to, 2745. salary of, 2745. SUPERIOR COURT : See Courts, Superior. SUPERSEDEAS, WRIT OF : authorized, 584. issued, when, 584. SUPERVISOR OF ROADS: duties, etc., 2712-2714. See Roads. SUPPLEMENTAL PROCEEDINGS : costs allowed witnesses in, when, 1273. debtor arrested in ; procedure, G71. debtor and bailee of judgment debtor examined, how, 075, 076. debtor of judgment debtor may pay off execution, 074. disobedience of orders in, contempt, 084. execution : not returned, creditor proceeds, how. 068. returned unsatisfied, creditor files petition, when, 067. again.st joint debtors returned unsatisfied, creditor proceeds, how, 009. instituted and tried, where, 677. judgment debtor examined, 071. order of court as to satisfaction of judgment in. 078. property of judgment ilebtor : ordered sold, when, 078. transfer of, prohibited by court, 073. receiver of judgment debtor; appointed, when, 079. not more than one appointed, 679. appointment of, recorded in what comities, 080. 681. duties of, 082. referee appointed, when, 683. venue of, 077. when can be begun. 007-069. witnesses; examined by either jiarty. 070. not privileged, 672. Rev. Vol. 1—83 . 1377 INDEX. SUPIiEME COURT: See Court, Supreme. StTI'REME COUKT LIBRARY: See A'olume 11. fees from licensing attorneys go to support of, 208. SUPREME COURT REPORTER : compensation of. 2771. actions against: barred, when, 302, 3!).''> (G, 7). on forfeited recognizance, 3217-3210, 3223-3225. appeal bond; jnstiflcation of, 504. bail may plead in exoneration any defense principal iiiiglit. 3220. bonding companies may become, when, 272, 273. bunds ; liability of, on, etc. See Bonds. companies. See Surety Companies, contracts of suretjship must be written, 974. co-surety liable to contribution, 2844. county commissioner liable as, on county officer's bond. when. 31."!. comity officers' bonds : justification of, 310. discharged by negligence of creditor, when, 2S4G-2848. execution ; uuist show suretyshijj, when, 2840. principal's property executed before surety's, 2841. .iudgment should show who is, 2840. jury must show suretyship in verdict, when. 2840. liable on guardian bond after guardian resigns. 1770. notice by, to creditor to collect from principal, 284r). 2848. penalty for delay of creditor. 284G. l)rincipars property exhausted before surety's, 2841. released how ; \^hen surety company, 274. from bond of guardian, 1783, 1704. personal representative, 37. sheriff's sureties may collect taxes, when, 2808. stay of exectition dissented to by : effect, 2845. subrogated to rights of creditor, when. 2843. summary remedy of surety against principal, 2842. surrender of prisoner by, in arrest and bail. 7.52, 7.53. undertakings in attachment, .iustification of, 763, 788. who can not be, on official bond, 315. STTRETY COMPANIES: See Volume II. ai-i'opted as sm'ety on bonds, etc., 272, 273. (■st(i|iiicd to iilead ultra vires, when, 275. forfeits rights to do business, when, 275. released from suretyship, when. 274. SURPRISE: judgmeut, order, etc., set aside for, when, 513. SURVEYOR : chain of ; must be sealed by standard-keeiier, 3075-.3077, 3084. penalty for failing to have sealetl, 3084. standard measm-e for ; what Is, 3075. counly. See County Surveyor, failing to test chain; misdemeanor, .3084. needle ; misdemeanor, 374.3. needle of, must be tested by meridian monument, how, 3070, 3077. 374.' test must be registered by register of deeds. 3078. time tested must be entered on surveys, :!070. INDEX. SURVEYS : certificate of, registered with grant, when, 2662, 2G63. county commissioners have power to order: of county, 1318 (7). of oyster grounds, 2374. entries of land surveyed, 1713-1721. See Grants. errors iu survey corrected, how, 1738, 1739. evidenced, how, 1596. party owning contiguous tracts may have all contained in one boundary by ; sun'ey must be registered, 150ij. record of survey evidence, when, 2663. superior court may order, when land boundaries in disinite, 1.504. SWAMP LANDS: defined, 1695. granted by state, when, 1694. TALESMEN : See Jury. TAVERN-KEEPER: See Innkeeper. TAX: See County Revenue; Municipal Corporations; also Volume II. act providing for collection of; construed, how, 2849, 2850, 2851. in force, wlien, 2849. acts of de facto ottieers in collection of, deemed valid, when, 2897. action against commissioners : for releasing taxpayer of, 2854. for recovery of tax illegally collected, 2855. recovery of laud sold for taxes, 2909. condition precedent to bringing action, 2909. evidence in, 2896, 2897, 2909. statute of limitations bars, when, 395, 2909. association failing to list stock of resident stockholder ; misdemeanor, 3328. bonds subscribed to railroad ; tax to pay, collected how, 2562. certificate of sale for, given to purchaser of land, 2899-2901. evidence of what, 2902. transferred by county or municipal corporation, 2901. collection of, when, 2852, 2867, 2869. attendance in the various townships for, 2870. claim and delivery can not interfere with, 2855. corporation jiroperty sold for, without receiver, 1230. 1237, 2879. garnishment for, 2880. license taxes ; sale to collect, 2876. delinquents prosecuted, 2877. restrained, when, 821, 2855. sales ; fees of sheriff for making, 2883, 2903. of personalty, 2885. before any realty sold, 2884. what sub.iect to sale, 2886. of realty, 2887. advertisement of, 2890. how, where and when made, 2888, 2891. land released from, how, 2913, 2914. notice to delinquent, 2889. not invalidated by certain irregularities, 2894. 2895, 2896. sheriff gives certificate of sale to purchaser, 2899-2901. void, when, 2894. sureties of sheriff collect, when, 2868. taxpayer; having property elsewhere, how collection enforced, 2871. removed to another county, how collection enforced. 2872-2875. time within which, must be made, 2869, 1318 (25), 1319. corporation (private) : collected, how, from. 1236. 1237, 2879. officer of, not turning moneys over to sheriff to pay tax ; uiis4. TIMBER : lands ; cartways to, established, how, 2(580. guardian may sell timber from ward's, 1790. owner's remedy for timber taken for roads, 2719, 2728. trial of title to, 808. trademark ; adopted by whom and how, 3023, 3024. altering any, upon logs, timber, etc. ; misdemeanor. .^855. branding with, effect of, 3026. evidence of o\^niership, 3027. larceny of timber with, misdemeanor, 3853, 3855. person adopting, has property in. 3025. taking possession of timber with another's ; misdemeanor, 3856. using, of another, without consent ; misdemeanor, 3854. trees; action of tresjiass for cutting, 808. cutting; allowed jiending action to tiy title, when, 809. not allowed, when, 807, 808. on land after entry and before grant issued; misdemeanor, 3741. in.1uring or removing, etc., another's ; misdemeanor, 3687. larceny of, 3511, 38.53, 3855. solvent defendant restrained from cutting, 807. tenant destroying, in any wa.v : misdemeanor. 3686. tenant for years not affor-ted by action over. 808. TIME : appeal taken within what, .500, 1491. from clerk. Oil. findings of .indgo within what, .542. order in special proceedings within what, .58.8. coniputens filed, when, 1230. coriJOrMtions have, in wliicli to close u]i tlioir affairs, 1'200. defendant sunnnoned in sjiecial ]irocee. may be heard at chambers, 1076. de novo, when taken from county commissioners. 2600. .iustice of the peace, 607. arguments to jury controlled by court, 216. arrests; facts in affidavit for, jury finds, when. 73.5. hill of particulars allowed, when, 404, 1469. by judge; procedure, 541. burden of proof in. See Burden of Proof, charge to jury, .535-538. See Instructions to .T\n'y. condemnation proceedings executed to : jury trial, when 2588. continuance of, how secured before and at term. .530. .531. .5.32. civil actions may be tried at criminal terms, when. 1,507. cornoratlon receiver's decision as to claim excepted to, jury trial. 12,30. defects in pleadings, etc.. not regarded on. wheir inuuatrrinl. 509. defined. 526. demurrer to evidence. .5,30. de novo on appeal from county commissioners as to roads. 2600. justice, 607. depositions read at, 1645. See Depositions. 1384 INDEX. TRIAL, CIVir. ACTION— C0)( //)!»(■<;.• divorce and alimony, 1564. docket kept by clerk, 915 (3). evidence in. See Evidence, exceptions; when aud,bow taken, 542, 554. * garnishee denying having property of, or owing defendant, 781. Hinsdale act taken advantage of on, 539. inquisition of lunacy, 1890, 1893. instructions to jury, 535-538. See Instructions to Jury, issues on, 544-549. See Issues of Pact ; Issues of Law. justice's court; trials in, 1428-1443, 1457-1478. See Courts, Justices', jury ; selected and impanelled. See Jury. can be demanded to try issue submitted to referee, 519. verdict of. See Verdict, Civil Action. waiver of trial by, 540, 1431. landlord's ejectment of tenant, 2005. new : justice's court can not grant, 1489. may be granted, when, 5.">4. motion for, when made, 554. refusal of motion ; appeal, 587. order in which cases disposed of, 533. place of, 419-428. See Venue, Civil Action. procedure before and at. See Civil Procedure; Courts, Justices', production of writings enforced on, 1657. QUO warranto ; action in nature of, when tried, 833. referee ; trial by, 518-525. See Reference. does not har trial by jury, 519. separate, where several defendants, when, 534. venue of action, 419-428. See Venue, Civil Action, verdict of jviry. See Verdict, Civil Action, waiver of, by jury, 540, 1431. what term cause stands for, 484. when ; of issues of fact, 528. when, takes place, 484. witnesses at. See Witnesses. TRIAL, CRIMINAL ACTION: See Courts. Justices': Criminal Procedure, accused entitled to speedy trial, 3155. arguments of counsel to jury controlled by court, 216. bill of particulars allowed in, 3244. jury selected; challenges, 1428-1443. 3263, 3264. See Jury. competency of jurors decided by judge, 3"263. justice's court; trial in. 1457-1478. See Courts, .Justices'. new ; not allowed before justice, 1489. granted, when, in sujierior court. 3272. preliminary hearing before justice, 3190-3"206. See Preliminary Hearing procedure before and at. See Criminal Procediu'e. term expiring during trial, court continues, when, 3266. venue of. See Venue. Criminal Action, verdict in. See Verdict, Criminal Action. TRUST DEED : assigmuent by, for crediiors, 967-97-3. See Assignment for Creditors, evidence by copy. l.'"i!)S, 1.599. See Evidence, foreclosui-e of. See Foreclosure of Mortgages and Trust Deeds, husband's, to secure purchase money, good without wife joining. 3085. power of sale in: execution of. barred when, 1044. executed by personal representative of trustee, when, 1031. sm'vivor of two or more trustees, 1033. trustee appointed liy clerk, when, 1037. 1385 INDEX. TRUST VEEV—coniiniied: probate of. See Probate. real property subject of, must be in writiug. ".iTii. registration of ; by register of deeds, immediately on tiling. l2(i.")8. necessary, to convey clear title, 982. released and discharged, how, 104G. * residuary interest in; action for, barre(l(>rnients claimed, jury arrives at. how, (i.".'i-(;57. ch.aractcr of, for different actions, 551. claim .'ind delivery. .551. counterclaini by defendant, jury finds b.alance due, .5.53. damages in detinue, .551. entry of, .554. exceptions to, 554. 1388 INDEX. VERDICT, CIVIL ACTION— con «wi«e(7.- filed wliere, 551. genei'al or special, in discretion, when, 551. general, defined, 550. Inquisition ol: lunacy and inebrietj', 1890. issues answered by. See Issues of Fact, jury assesses damages, wiien, 5.53. justice's court, jury in. renders. See Courts, Justices'. nonsuit not allowed after, 1520. set aside ; motion to, 554. special, defined, 550. controls general, 552. referees report as, 525. suretystiip must be shown by. 2S40. valuation by jury of dividing fence, 1600, KiG". VERDICT, CRIMINAL ACTION : bastardy proceedings ; judgment thereon, 255. defendant convicted of assault iu trial for felony, when, 3208. first degree burglary charged, jury may find, what. 3209, 3270. murder charged, jury may find, what, 3208, 3209, 3271. justice's court; jury in, renders. See Courts, .lustices'. VERIFICATION: account, itemized, must be verified, when, 1025. pleadings, 488-493, 1503, 1922. before what oflicer, 492. by agent or attorney, 490. party, 489, 491. ^ may be omitted, when, 493. one verified, subsequent must be, 488. VESSELS : See Crimes and Punishments ; Fishing ; Navigation ; Oysters. VOUCHERS. presumptive evidence of disbursement by administi-ator, 1(»1, 102. WARD : See Guardian. WAREHOUSEMEN : public storage ; any corporation may become, 3029. bond of, 3030. action on, by any one damaged, 3031. book of accounts kept by, 3035. open for ins])oction, 3035. duty to insure stored property. 3032. perishable or dangerous property sold, when. 3039. proceeds of sale paid to clerk. .3039. miable to sell, what done, .3040. sale of i)roi)erty for storage charges, .3030. notice of ; served how, 3030, 3037. proceeds of, disposed of, bow, 3030, 3038. storage receipts; contain what, 3032. negotiable when, 3032, 30,33. non-negotiable when, 3032. where goods are nii.ved with others, 3034. storer liable for charges, .3041. title to stored goods passes with receipt, .3033. effect of receipt when goods mixed, 3034. unlawfully disposing of goods stored with, misdemeanor. .3831. 1.389 INDEX. WAREHOUSEMEN— <0)i^»iuc(?.- tobacco; charges of, maxinnim fixed, 3042. bill of charges rendered seller, 3044. failing to render bill ; iienalty, 3044. weighers for, sworn, 3043. oath ; form of, 3043. WAItEIIOUSES : Imrning of, wilfully and maliciously, 3338. unlawfully disposing of goods stored in pulilic niisdeniennor. 3831. WARRANTIES: collateral and other, abolished ; deemed covenants only. 1587. WARRANTS : See Arrest, Criminal Action ; Courts, .Tustices' : Cr Procedure, arrest without, when, 3170-3178. attachment. See Attachment. complaint made and examination upon oath before issuance of, 3157 bastardy, served out of county, 256. See Bastardy Proceedings, form of, 3158. fugitives from justice from another state ; issued by whom, 3184. indorsed, how, 3160. issued ; at any time and returnable, when, 3148. by whom, for apprehension of criminal. 3156. justice indorsing, not liable to action, 3161. officer must serve, when addressed to him, 3HiO. peace, 3165-3175. See Peace Warrant, retiu-nable before whom, 3162. runs where; if issued by justice or mayor. 3159. if issued by superior or criminal court. 3159. search, 3163, 3164, 3.557. See Search Warrant, when to issue, 3158. who may issue, 3156. WASTE : action for : against guardian, 854. against tenants for life or years, 854. 8.55. brought as other actions, 853. by heirs, 857. judgment in, 853, 858. tenant's against cotenaut, 856. personal representatives liable for, 167. remediable, how, 853. WATER COMPANIES : analyses of water: duties as to, 3054-3057. eminent domain, right of, granted to, 2.57.5, 3060. failing to inspect water supply; penalty, .3047. must take precautions as to purity of water. .30,58. ta.\ against, to support laboratory of h.vgiene. .3057. water supply of. See Water Supply. 3158. WATERCOURSES: See Bridges; Ferries; Navigation and C'reeks ; Water Companies ; Water Supply. WATER SUPPLY, PUBLIC ; analyses of; to be made, 3054. state board of health makes; fee, 30.55. contamination of, g\iarded against, ,3058. 1390 Obstructing: Rivers INDEX. WATER SUPl'LY, PVBhlC—contimied.: mayor's jurisdiction to enforce regulations concerning, 3059. public institutious of state may operate waterworks, 3061, 3062. sewage must not be discharged in, 3051. punishment for so discharging, 3S5S. state board of health ; duties of, as to, 3054, 3057. water company owning public ; duties, etc. See Water Companies, watershed of ; bui-j'ing grounds on, prohibited, 3053. depositing dead body on; misdemeanor, 3802. human excreta on ; misdemeanor, 3857. failure to provide tub system for human excreta : misdemeanor, 3800. inspection of, required ; how done, 3045, 3048, 3050. failing to make inspection; misdemeanor, 3801. rivers and creeks inspected fifteen miles, 3040. state board of health may make, 30.56. insiiectors may enter upon premises, 30.50. residents on, must obey insti'uetions, 3049. tub system for human excreta must be provided. .3052. 3860. WATTS LAW : See Liquors. WEIGHTS AND MEASURES; acre of land defined, 3005. bushel defined, 3000. penalty for taking greater quantity than allowed, .3066. - - buyers and sellers must use standard ; proviso, 3003. county commissioners provide county with standard. 1318 (16), 3064. cost paid by county, 3070. established by congress of United States, 3003. inspection of, by standard-keeper, 3073. magnetic needle of surveyor's compass tested, 3076-3078, 3743. meridian monument protected by county commissioners, 3079. oyster measures i)rescribed, 2417. using other than ; penalty, 2.390. penalty ; for lasing, untested, after notice, 3067. for not using standard weights and measures, 3060, 3007. standard keeper ; duties of. etc. See Standard Keeper, surveyor's chain defined, 3075. tested, when, 3075-3078. not testing ; misdemeanor, 3684. toll dishes used by millers. 2121. traders ; must use standard ; proviso. 3063. penalty for not using, 2399, 3066, 3067. must permit inspection of. 3073. penalty for not permitting inspection, 3073. WHARVES: grant of land and water bottoms for. 1696. owner of granted land for, may establish fisherj-. 1097. WIDOWS: dissent fnmi will, how and when, 3080. effect of dissent, 3081. dower of, 3083-3090. See Dower, may use crops until year's allowance assigned, 1. not liable for debts of deceased husband. 3082. when, take as heirs, 15.56 (8). year's allowance of. .3091-3110. See Widow's Tear's .\lIowance. INDEX. WIDOW'S YE.\JR'S ALLOWANCE : a credit to personal representative, 3102. action lor, barred, when, 397. assigned from what, 3095. assignment of; at instance of representative or justice. 3090-3102. appeal from, to superior court, 3100. liow lieard and decided, 3101. appraisal by justice and two jurors, 3097, 3098. oath of, 2300. effect of, 3103. list of articles assigned made in triiilicate, 3099. to whom lists given, 3099. procedure, 3098. when, 3090, 3098. by superior court, when increase desired, 3104-3110. commissioners : assign and report, 3108. oath of, 2360. complaint, 3100. judgment that increase allowed, 3107. order for jury to assign. 3107. parties to proceeding, 3105. report of commissioners, 3108. confirmed, 3110. exceptions to, heard as special proceeding, 3109. execution. 3110. summons, 3105. consists of what, 3095, 3090, 3098. crops used by family pending assignment of, 1. family of widow defined, 3093. forfeited by adultery, S, 2110. divorce, 2109. felonious slaying of husband, 7. justice of the peace may assign, 3096. value of, 3092, 3093, 309(!. 3097, 3103, 3107, 3108. when allowance in full, 3103. who entitled to, 3091. widow may apply to superior court, 3104. WILLS : administrator cum testamento annexe ; duties and powers of. See Admln- . istration ; Administrator Cum Testamento Annexo. after-born child : effect of, on. 138-143. See After-born Child, annuity bequeathed in ; cash value of, 1027. authenticated, where proven in another state, 1010, 31.30, 3133. bequest in. See under this head. Legatee, etc. caveat of ; filed, when and how, 3135. bond of caveator, 3136. others than devisees, etc., 3136. cause transferred to superior court, when. 31.30. citation to devisees, etc., 3136. filing of, suspends jiroceedings under will : cxcoplions. 31.37. judgment for costs in. 12ii8 (2). clerk's office destroyed, how will pi-obated anew, :V29. construction of. 3138-3146. contingent limitations construed, how, 1581. conveyance of land by will effectual, when, 3133. 3139. effectual from death of testator. 3141. devise presumed in fee simple: exception, 31.38. devises lapsed or void go to residuary devisee. 3142. general gift in a will includes what. 3143. i INDEX. WILLS — continued: construction — continued. gifts to cliildren dying pass to issue, 31-14. "laud" does not embrace crops, 47. what property passes by will, 3140. conveyances of land, when, 3133, 3139. cross-index of; kept by clerk, 915 (17). defined in construing laws concerning, 2831 (9). destroyed ; contents pro\en, how, 329, 331. devisee in ; after-boni child deemed, when, 142. conveyance fay, \\ithin two years of letters granted ; effect, 70. devise of. abates, when. 138. 140, 141, 143. dying before testator, devise goes to residuary devisee, 3142. entitled to contribution, when, 80. liable for debts of testator, 52-58. loses devise if a witness to will, 3120. may appeal from widow's year's allowance, 3100, 3109. may apply for dower for widow, 3088. party to proceeding to sell land for assets, 74. religious society as ; title vests in trustees, 2072. witness to pro\e contents of will, when, 331. devises void or lajised, go to residuary devisee, 3142. dissent from, how and when, 3080. effect of, 3081. entry of land conveyed by will, 1730. evidenced by copy, when, 1003, 1007. 1008, 1009, 3130, 3133. See Evidence, execution of; 3111-3114. appointments executed, how. 3114. how, 3113. requisites of, 3113. who capable of, 3111, .3112. executor; duties and liabilities generally. See Administration; Executor. dying or removed, effect on land devised to be sold. 82. executors and devisees : powers not affected by chaiiter Administration, 170. filed in clerk's office, 3129. general gift in, includes what, 3143. holograph; how probated, 3127 (2). husband's curtesy barred by wife's will, when, 2102. legatee in ; after-born child deemed, when, 142. legacy of; abates, when, 139, 141, 143. action for, when may be brought, 144. ordered paid within two years, when, 151, 155. liable for debts of testator, 52-58. loses legacy if an attesting witness. 3120. may appeal from widow's year'.s allowance, 3109. made by nonresidents ; rer|uisites to convey real estate, 3133. married woman may make, '2093. 2098, 3112. must be observed by administrator c. t. a., 3140. nuncupative: how proliated. 3127 (3). oath of witness to jirove, 2300. probate of: ai)plication for. b.v whom made, 3122. 3123. adidavit of applicant, 3125. clerk : jurisdiction of, over, 10. must take proof and examination in writing. 3120. office of. destroyed, cojiy of will probated. 329. conclusive as to what, 3128, 3139. delayed, collector ap]iointed. 22. of nonresidents. 1019, 3133. Iiroccdure for, in case of hologr.-iiib will. 3127 (2>. nuncupative will. 3127 (3). written will attested. 3127 (1). Kev. Vol. 1—84 1303 INDEX. WILLS — cfiiitin lied : probate of — coiitiuutd. Ijro1. See Licpiors. WITNESSES : attendance of ; how pnx'ured, 1639-l(i44. See Subpoena. failure to attend until discliarged ; penalty, 1643. procedure to enforce penalty, 1G43. proven before clerk, how, 1299. attorneys at law not privileged, when. 1620. certificate from clerk evidence of attendance of, 1299. committee of legislature; refusal to testify before; misdemeanor, 3691. competency of, 1(!28-163S. defendant in criminal cases competent, 1634. devisee and legatee to prove will, when, 331. executors, to prove estate in hand, when, 16:!2. gamblers, 1(537. 1688. husband or wife competent, when, 1634-1636. lyncher.s, 1638. not incompetent because of interest or crime, 1628. parties to action competent, when, 16.30. not competent, wlien, 1633. person interested in event of action. 1629. students, against lewd woman, 3353. when one part.v to transaction dead, 1631. conveyances; witnesses to. suhpa>nae;itiuus of, lOio, 1()49-1G.">5. See Depositions, devi.see and legatee competent to prove will, when, 331. discharged by solicitor, when, 1305. examination : of defendant in criminal actions, 1634. failure to testify must not prejudice, 1(534. of parties, 8(i4-S72. See Examination of Parties, exempt from arrest in civil cases, 1()44. failing to testify before county board of education; misdemeanor, 3840. fees of, 12!J6, 1453, 2803. See Costs. attending before grand jury, 1302. referee, etc., 1301. can be demanded, when, 1298. only two paid to each material fact, 1300. not allowed by judge, when, 1306. not paid unless certain requirements compiled with, 1306. . paid in only one case a day, 1303. state's witnesses, iiaid by county, when 1289. gamblers competent, when, KiSS. grand jury ; appearing before, entitled to fees, 1302. names indorsed on presentment, 3241. husband and wife as, 1634-1636. not compellable to testify for or against each other, 1636. judgment debtor as, in proceedings supplementary to execution, G70. habeas corpus ad testificandum issued, when and by whom, 1855, 1856. after testifying, prisoner remanded, 1801. application for writ contains, what, 1857. penalty on officer not obeying writ, 1860. requisites to issuance of, 1859. served, how and by whom, 18.58. interest in event of action does not exclude, 1629. intimidating, or attem])ting to intimidate; misdemeanor, 3696. justice binds over two state's, on ajipeal in criminal action, 1.304. justices' courts ; failure toi respond to subpoena of. fined, 1452. not included in bill of cost, remedy, 1300. oath of, 2360. participants in lynching not excused from testifying, 3"201. physicians and surgeons privileged, 1(>21. preliminary hearing : not allowed present when prisoner examined, 3195. privileged, not privileged, when, 672, 1620, 1621, 1G88, 2459. railroad officials subpoenaed to bring papers to justice's court, 14.54. receiver of corporation can compel, to testify, 1227. refusing to enter into recognizance, committed to jail, 3232. recognized to ajipear at superior court, 3'203. right of, to recover against party summoning, 1299, 1301. security for appearance of, at superior court, required, when, 3204. ' state's; solicitor directs two to each material fact paid, 1303. paid by county, when, 1289. what, and how many paid, 1303. state tax commissioners' power to subpoena. 1123. subpoenaed to regular, must attend special, term of court. 1517. subpoenas for, issued and served, how. See Subpoena, supplemental jiroceedings ; not privileged in, 672. supreme court may subpcena ; compensation, 1547. testimony of. See Evidence. tickets destroyed, how amount recovered, 335. See Witness Tickets, two only to each material fact allowed fees, wlien, l.'iii.^. wills proven by. See Wills. written instruments; certain, proven otherwise than by attesting, 1604. INDEX. WITNESS TICKETS : clerk issues, upon witness proving atteniliUK-e, 1290. destroyed, amount recovered, how, 335. fee of clerli for issuing, 2773. filed with the clerk, 13U0. WOODS : action for damages against person burning, when. .3341!. wagoner leaving camplires burning; misdemeanor. 33-17. WOKDS AND PHRASES : "adulterated" means what, with reference to food stuffs, 3444. "animal" and "dumb animals" include what, as to cruelty to animals, 32!)0. certain words in tax laws mean what. 2S51. "commissioners" mean "aldennen," when, 2918. "court" in chapter on corjiorations refers to what judge, 1247. "cruelty," "tortvu'e," "torment" mean what as to cruelty to animals. .".290. "dealer in intoxicating drinks" construed, 3524. "family" means what, as to widow's year's allowance, 3003. "general'' means "common." applied to stocli of corporation. 1150. ".judge of superior court" means .iudge riding district, 1247. "month" means what in statutes generally, 2831 (3, 12). "oath" means what in construing statutes, 2831 (5). "previously" used instead of "privatelv" in private examination, correctoil, lOlG. "probate" means what as to certain married woman's deeds. KilS. "property" means what. 2,S31 (6). "public buildings," include "grounds" around liuildings. when, .■{742. "receiver" means "trustee." when. 1222. "seal" means what, 2831 (8). "superior court" means what, in -chapter Corporations. 1247. "sworn" means what in construing statutes. 2831 (5). "year" means what in < onstruing statutes. 2831 (3). WRECKS: See Volume 11. commissioner of. violating trust : misdemeanor, 35(i3. liable in damages to in.iured party, and forfeits oftice 35(i3. lierson finding, failing to report same; misdemeanor. 3548. violating provisions of cliapter on; misdemeanor. 3.")(i3. WRECK COMMISSIOXET: : See Volume II. bond of, .305. .308. obstructing, in discharge of duty ; misdemeanor. 3."',(i-l. YEAR'S SrrrORT: See Widow's Year's .VUowance. >r