THE LIBRARY OF THE UNIVERSITY OF NORTH CAROLINA THE COLLECTION OF NORTH CAROLINIANA PRESENTED BY Richmond Co. Clerk of Court C3U7.9 B2? UNIVERSITY OF N.C. AT CHAPEL HILL 00033977046 This book must not be taken from the Library building. Form No. 471 Digitized by the Internet Archive in 2010 with funding from Ensuring Democracy through Digital Access (NC-LSTA) http://www.archive.org/details/codeofcivilproce1868nort THE CODE OF Civil Procedure OF NORTH CAROLINA. TO SPECIAL PROCEEDINGS. PREPARED BY Victor C. Barringer, Will: B. Rodman, Albion W. Tourgee, Commissioners of the Code, ATO PUBLISHED CXDEB THEIB ST7PEEVISIOX, ACCOEDIXS TO LAW. ~*5r- RALEIGH : N. PAIGE, STATE PRINTER. 1868. PREFACE. In submitting that portion of the Code of Civil Proce- dure which has been prepared and adopted, to the pro- fession and the people of the State, the Commissioners, recognizing and regretting its deficiencies, beg leave only to call attention to the very brief time which has been occupied in its preparation and publication. By the conditions imposed by the Constitution and Act of Ap- pointment, the Commissioners were compelled to report a Code of Civil Procedure as well as a General Analysis of the Codes projected by them, to the first session of the General Assembly. In addition to the duties, thus imposed, they were requested, by resolution of one or both Houses of the General Assembly, during the late session, to prepare several bills upon subjects connected with necessary amendment of our laws, to adapt the new machinery of the State Government to its work. The actual work of preparation of the Code can hardly be said to have commenced until the inauguration of the State Government, July 3rd, 18G8. Since that time, the Commissioners have not only prepared and published the present volume, but have prepared and submitted nearly as much more, for the consideration of the General Assembly. The necessity for^this haste no one regrets more keenly than the Commissioners, yet they hope it will not be without iv PREFACE. good, in its final results, as it will render possible a com- plete and thorough revision and amendment of the Code of Civil Procedure, before the final publication of the Codes projected by the Commission. It is hoped that the entire Bench and Bar of the State, will unite with the Commissioners in endeavoring to perfect and harmonize the system of Procedure now introduced, and made neces- sary by the Constitution, by forwarding to them such amendments as may occur to them, in practice under it, as necessary or valuable. Having fulfilled the conditions of the Constitution in regard to the work which was required to be reported to the first session, we can assure the profession that no pains will be spared to make the future work of the Commission as complete as time and assiduous labor can render it. It is expected that the volume will be in the hands of the profession and the officers of the courts by the first of September, or in less than ninety days from the time its preparation was commenced. The Ordinance of the Convention of 1865 and 1866, in regard to the jurisdiction of the courts, amended by the Convention of 1868, is for the first time published in its amended form, in this volume, for the convenience of public officers and parties interested. THE COMMISSIONERS. Raleigh, August 25th, 1868. AUTHORIZATION. EXTKACTS FEOM THE CONSTITUTION OF NORTH CAROLINA, ARTICLE IV Section I. The distinction between actions at law and suits in equity, and the forms of all such actions and suits, shall be abolished ; and there shall be in the State but one form of action for the enforcement or protection of private rights, or the redress of private wrongs, which shall be denomina- ted a civil action ; and every action prosecuted by the peo- ple of the State, as a party against a person charged with a public offence, for the punishment of the same, shall be termed a criminal action. Feigned issues shall also be abol- ished, and the fact at issue tried by order of court before a Sec. II. Three Commissioners shall be appointed by the Convention to report to the General Assembly at its first session, after this Constitution shall be adopted by the peo- ple, rules of practice and Procedure in accordance with the provisions of the foregoing section, and the Convention shall provide for the Commissioners, a suitable compensation. Sec. III. The same Commissioners shall also report to the General Assembly of North Carolina as soon as practicable, a Code of the laws' of North Carolina. The Governor shall have power to fill all vacancies in this Commission. Sec. XXV. Actions at law and suits in Equity, pending when this Constitution shall go into effect shall be trans- vi AUTHORIZATION. ferred to the courts having jurisdiction thereof, without prejudice by reason of the change, and all such actions and suits commenced before and pending at the adoption by the General Assembly, of the rules of Practice and Procedure herein provided for, shall be heard and determined accord- ing to the practice now in use, unless otherwise provided fqr by said rules. Ordinance of the Convention of 1868, APPOINTING CODE COMMISSIONERS. Atf ORDINANCE APPOINTING COMMISSIONERS TO PREPARE A CODE OF PRACTICE AND PROCEDURE IN THE DIFFERENT COURTS OF THE STATE. Section 1. Be it ordained by the people of North Carolina in Convention assembled, and it is hereby ordained as follows : That Victor C. Barringer, A. W. Tourgee and William K Rodman are hereby appointed Commissioners, whoee duty it shall be to prepare a Code of Practice and Procedure in the different Courts of the State, and to reduce into a written and systematic Code, the whole body of law of the State, or such parts thereof as shall seem to them practicable and expedient, and consistent with the provisions of the Constitution. Sec 2. Be it further ordained, That the Commissioners shall divide the Code of Practice and Procedure into two parts, the one as a Code of Criminal Procedure, with the requisite forms, the other a Code of Civil Procedure, with forms thereof. Sec. 3. Be it further ordained, That the first division of the Code of Law must embrace the laws respecting the AUTHORIZATION. vii government of the State, its civil polity, the functions of its public officers and duties of its citizens. The second must embrace the laws of personal rights and relations of property and obligations. The third shall define crimes and pre- scribe their punishments. Sec. 4. Be it further ordained, That the Commissioners shall hold their offices for three years ; but the General Assembly may continue their term if it shall be deemed necessary. Sec. 5. Be it further ordained, That the Commissioners shall report to the General Assembly at its first session after the adoption of this Constitution a general analysis of the Code projected by them and the progress made by them therein, and shall continue to report at each succeeding session of the General Assembly the progress made to that time. Sec G. Be it further ordained, That whenever the Com- missioners shall have prepared the Code, or any portion of the same, they shall contract with the printer of the State for printing of the same, and cause the same to be distri- buted among the Justices of the Supreme Court, Judges of the Superior Courts, and other competent persons for exami- nation, after which the Commissioners shall re-examine their work and consider such suggestions as may have been made to them. They shall then cause the Code as finally agreed upon by them to be re-printed under the contract as afore- said, and distributed to all the Justices of the Supreme Court, the Judges of the Superior Courts and Clerks of the Superior Courts, thirty days before being presented to the General Assembly ; and the Penal Code in like manner to be dis- tributed to the Solicitors of the State. Sec 7. Be it further ordained, That the Commissioners shall from time to time specify such amendments, altera- tions and revision of the law as to them may seem necessary to carry into effect the provisions of the Constitution, and report the same to the General Assembly. Sec 8. Be it further ordained, That each of said Commis- missioners shall receive a salary of two hundred dollars per viii AUTHORIZATION. month, while actually engaged in the performance of his duties as such. A suitable room in the Capitol shall be assigned to said Commissioners as an office, and the neces- sary printing and stationery allowed the same. Sec. 9. Be it furtJier ordained, That this ordinance shall be in force from and after its ratification. Ratified this 13th day of March, A. D., 1868. CALVIN J. COWLES, President T A. Btrxes, Secretary. First Report of the Code Commissioners. Office Commissioners of the Code Raleigh, July 15th, 1868 •} To the General Assembly of North Carolina : The Commissioners appointed by the Act of March 13th, 1868, to " prepare a Code of Practice and Procedure in the different Courts of the State, and to reduce into a written and systematic code the whole body of the law of the State," and who are required by section 5, of said act to " report to the General Assembly, at its first session, a general analysis of the Code projected by them, and the progress made by them therein," beg leave to submit their first t REPORT. Immediately upon the ratification of the Constitution, the Commissieners began their labors. It is known to the General Assembly that the labor imposed upon the Commis- sion is one of the greatest difficulty and responsibilty. Nothing within the range of government, can exceed in magnitude the task of collecting, condensing and arranging the jurisprudence of a people. The structure of government and society, and all their complex relations are compre- hended within it. Public order, sound morals, all advance- ment in the arts of civilization, and all growth in true- prosperity, are dependent, in a great degree, upon those rules of action, which the state prescribes for the conduct of its citizens. These difficulties are increased by two considerations: 1. The present state of the law, and 2. The present state of society. x FIRST REPORT OF THE Our language cannot furnish a better picture of the present condition of our law, than the words of the first modifier ot the common law: " Our law is the product of ten centuries, most of them filled with tumult and disorder; it is compounded of many incongruous elements, Saxon and Norman customs. Feudal and Roman law, provincial usages, and the decisions of vari- ous and disagreeing tribunals. We jiave Equity law, Admirality law, Common [law, as the law of marriage and succession, and two kinds of common law, one, contradis- tinguished from Statute, and the other, from Equity. Society has undergone an entire transformation. The Feudal system has fallen to pieces, monarchical institutions have given place to republican; land, from being almost inalienable, has become an article of daily and hourly traffic, and com- merce, once so narrow and timid, embraces the world. Personal rights and personal property have assumed an importance never before known ; the numberless questions arising from modern enterprise, travel, emigration and the expansion of industry and commerce have developed new departments of jurisprudence ; while the multiplication of courts required by the necessities of an increased popula- tion, and a traffic constantly augumenting, has produced a mass of adjudications, painful for the student to contemplate and often difficult if not impossible to reconcile. Thus we have arrived at the period of which the Roman historian, complained so justly, when " the infinite variety of laws and legal opinions had filled many thousand volumes, which no fortune could purchase and no capacity could digest." The changes which the last eight years have wrought in the fundamental relations of society, blotting out entirely* one of the great classes of personal relations — that of master and slave — opening the ears of justice to those who were before dumb in her presence, and giving parity of right, authority and remedy, to the highest and lowliest; breaking down the barriers ot the jury-box, and permitting the landless citizen and the man of African descent to come within its bounds, CODE COMMISSIONERS. xi opening the forum, the bar and the bench, to the honorable competition of the colored man— all these mighty changes in the relations of the great component elements of society, demand equivalent changes in the laws and render the work both of the Legislator and the codifier, one of extreme diffi- culty and delicacy. The Commissioners are determined to perform their portion of it, with conscientious carefulness, neglecting no pains, and refusing no aid, which will tend to secure as perfect a compilation and revision, as circumstances will permit. GENERAL DIVISION OF LABOR. In considering the duties of the Commissioners, it was found that they were comprehended under seven distinct sub-divisions as follows: I. A Code of Civil Practice and Procedure in the several Courts of the State. II. A Code of Criminal Practice and Procedure, in the several Courts of the State. III. A Political Code. IV. A Civil Code. V. A Penal Code. VI. Suggestion of alterations, amendments and revisions of laws necessary to carry into effect the Provisions of the Constitution. VII. A General Analysis of all the Codes. THE GENERAL ANALYSIS. The general Analysis of Codes, herewith presented, is not expected to be in all respects complete or exhaustive. It would be almost impossible to present an accurate analysis of this work previous to its completion. The one presented will, however, indicate the general plan and scope of the Code projected by the Commissioners, and contemplated in the act of appointment. Such variations will be made from this plan as further time, and progress, may show to be xii FIRST REPORT OF THE expedient. The analysis now submitted, is complete as to- all the Codes, except the Code of Penal Procedure, which ■ will be offered at some time during the session, if possible. ALTERATIONS, AMENDMENTS, &C. Under this head, the Commissioners will present to the General Assembly, from time to time, such portions of the general Code, as they may deem most important, and be able to complete. Those already prepared, and only waiting to be printed, consist of the powers and duties of Clerks of the Superior Courts, of County Commissioners, of the Superior Court Clerk as Probate Judge, General Elections, the powers and duties of Legislative and Executive officers, the passage of Private Acts, Testimony in Legislative Proceedings. NECESSITY FOR THESE PROVISIONS. The Constitution, providing, as it does, for great and numerous changes in the organization of counties, immediate provisions must, of course, be made for the transaction of county business and the holding of elections. In preparing this, every means has been taken by the Commissioners to secure the most perfect system compatible with our situation. The laws of almost every State have been examined, and whatever seemed most simple and expedient, has been selected to become a part of our organization. It was con- sidered, as indeed is well known to have been the intention of the Constitutional Convention, that the very object of establishing the Board of County Commissioners, and extend- ing the jurisdiction of Justices of the Peace, and conferring probate powers upon the Clerks of Superior Courts, was to separate the Judicial and Legislative functions of the County Court, the latter being conferred upon the Board of Com- missioners, and the former upon the Justices and Clerks. It was considered too, that the duties of County Commis- sioners were strictly defined by section two, Article VII, of the Constitution, and that the power of the Legislature CODE COMMISSIONERS. xiii extends only, to prescribing' the manner in which those duties should be performed. No extension of those duties, there- fore, has been attempted. THE CODE OF CIVIL PROCEDURE. It was deemed necessary to provide at once, certain por- tions of this Code, in order that Justice might not be delayed, and that parties might have adequate remedies in all cases. It will be submitted in detached portions, as rapidly as pos- sible. It is the desire of the Commissioners to complete it before the adjournment of the Genei-al Assembly. During the consideration of portions of the Code presented by them, the Commissioners will be pleased to offer any explanation which may be desired in regard to the same. Hoping that by earnest and united effort, order may be brought out of disorder, and confusion give way t© certainty in our laws, we remain, With the utmost respect, Your obedient servants, W. B. RODMAN, ) V. C. BARRINGER, J- Commissioners. A. W. TOURGEE, J Secretar/. xiv SECOND KEPORT OF THE Second Report of the Code Commissioners. Office of Commissioners of Code, ) Raleigh, August 31st, 1868. j To the General Assembly of the State of North Carolina : The Commissioners appointed by the Constitutional Con- vention, to prepare among other things, a Code of" Practice and Procedure in civil actions fo* the courts of this State, respectfully present the concluding portion of that Code with the exception of certain detailed regulations for what are called " Special Proceedings, " including: 1. Application for year's provision of a widow. 2. The laying off of dower. 3. Partition of real and personal property. 4. Foreclosure of mortgage. 5. Habeas Corpus. 6. Mandamus. 7. Laying off property exempt from execution. 8. Ejectment for the recovery of real estate. 9. Proceedings in contempt. 10. Proceedings on impeachment. As they understand the law of New York, these proceed- ings are only generally, and not fully, provided for in its Code of Procedure, but are regulated at least in part, by cer- tain statutes contained in the second volume of their Revised Statutes. Proceedings in these cases, are accordingly left by your Commissioners for the present, to be governed by the exist- ing Statutes, as far as may be consistently with the provis- ions of the Code of Civil Procedure. The Commissioners ask leave to submit a few observations respecting the circumstances under which their work has been performed, and the manner of its performance. CODE COMMISSIONERS. xv The Constitution required that tl ey should piesent such a Code to the Legislature at its present session; it contem- plated the abolition, as soon as such a Code could be pre- pared, of all existing forms of actions, aiul of all distinctions between actions at law and suits in Equity ; Courts ot Equity- were immediately abolished by the Constitution. The Com- missioners felt the necessity of diligence and even of a degree of haste incompatible with the , perfection which might reasonably be expected from a longer time for consid- eration and review. They commenced their labors as soon as they had any assurance that the Constitution would become the law of the State, and in two months have pre- pared and presented to your body : 1. An Analysis of the entire Code of the State. 2. A bill for the government of counties. 3. A bill defining the powers and duties of Clerk's of the Superior Courts as Judges of Probate. 4. A bill concerning the Jurisdiction of Justices of the Peace. 5. A Code of Civil Procedure for the Superior Courts. Besides many others on subjects of great importance, requiring both research and reflection, but upon which members of your body thought early legislation necessary for the public good. Some idea may be formed of the dili- gence with which the Commissioners have labored, when it is considered that nearly five years elapsed between the appointment of the Commissioners to prepare the Revised Code, and its publication. In reference to the Code of Practice, so great has been their sense of the necessity for promptly providing rules for the guidance of the newly created Courts, that they have ventured to present it to you in piece meal, without reserving to themselves any oppor- tunity for reviewing it as a whole. Under such circumstances, it is inevitable that imperfec tions will be found, which such a review would have readily disclosed. We feel authorized, therefore, to ask a generous criticism of our labors from [you, as well as from the profes- sion, which because it is best able to appreciate the difficul- xvi SECOND KEPORT OF THE ties of the task, is always disposed to regard in a kindly spirit, every effort directed in good faith to improve the administration of justice. As the Constitution adopted the language of the law of New York in its provisions for abolishing the distinction in the forms of actions; and as the Code of that State was the first adopted, and has been the model on which those of many other States have been since framed, the Commis- sioners did not hesitate to take the Code of New York as the basis of that to be prepared for this State, with such modifications as the differing circumstances of the two States might make expedient. In general, they have endeavored to make such changes only as were absolutely commanded or clearly implied in the words of the Constitution, or as were manifestly proper. To point out the changes in detail, would occupy too much of your time. The Code we present, forms as nearly as was possible under the circumstances in which it has been prepared, a consistent whole; there is scarce any part which can be altered without involving alteration in some or numerous others. We therefore invite your honorable body to pass it as it is, and leave to experience, to expose the places which require amendment. The Code of New York was adopted in 1848 as it come from the hands of the Commissioners, and has ever since been undergoing amendments, suggested by experience, and so framed by the most able lawyers, as to fit in and harmonize with the other parts. All can understand the value to a people, of a Code of laws, embodying and regulating according to justice and reason, the rights and duties of men in all the varying rela- tions of life and business; but none but those whose profes- sion makes them necessarily familliar with the modes of applying those principles to actual transactions, can appre- ciate that the machinery for such application is as essential to justice as is the recognition of its principles. In every Code for the administration of law, much is fixed by the laws of the human mind, and is, therefore, essentially CODE COMMISSIONERS. xvii alike in the practices of all countries; while much also is purely arbitrary, and depends for its wisdom, on the habits and condition of the people to whom it is applied. For example : every man who has a complaint against his neighbor, for which he seeks redress, must first summon the supposed wrong-doer before some Judge, and must inform him of the grounds of the complaint, and the defendant must hare an opportunity to answer. These things are fixed in justice, and are to be found in the practice of all countries. But what shall be the nature of the summons, — whether or not the defendant shall be arrested and held to bail, the time of notice, the manner of service, and a vast number of other details which it is indis- pensable for the convenience of all parties shall be prescribed by some fixed and certain law, are purely arbitrary, and are scarcely ever the same in any two States. It is not so important what they are, as that they should be fixed and clear and known, and conformable to the business usages of a people, their grade of culture and facilities for mutual intercourse. . We make these general observations to show the views which have guided us in the preparation of this Code, con- fident, that whatever may be the skill with which we have applied them, the views themselves will be received by all, as true. Detailed regulations for what are called " Special Proceed- ings" are not urgent, they being sufficiently provided for, at present, by the Code, and by the existing laws; we do not propose, therefore, to present those at this session of the Legislature. Very respectfully, WM. B. RODMAN, A. W. TOURGEE, V. C. BARRINGER. .ANALYSIS OF THE Code op Civil Procedure TITLE I. General provisions in regard to actions. II. Superior courts. III. General provisions as to civil actions, IV. Limitation of actions. V. Parties to uivil actions. VI. Of the place of trial of civil actions. VI T. Manner of commencing civil actions and the service of the summons. VIII. Of the pleadings in civil actions. IX. < >F the provisional remedies in civil actions. X. Op the trial and judgment in civil actions. XI. Of the execution of judgment in civil actions. XII. Of the costs in civil actions. XIII. Of appeals in civil actions. XIV. Of the miscellaneous proceedings in civil t ACTIONS AND GENERAL PROVISIONS. ' XV. Actions in particular cases. XVI. General provisions. XVII. Regulations respecting existing suits. XVIII. Of the Supreme court. XIX. Probate courts'. XX. The courts of justices of the peace. XX L Fees of clerks and other officers. XXII. Of* the printing oe the code of civil pro- cedure. XX I II. Ratification of statutes composing this code. sx ANALYSIS. TITLE I. GENERAL PROVISIONS. £>ec. 8. To what actions these enactments applicable. 9. Definition of Court ; to mean clerk, when. TITLE II. SUPERIOR COURTS. Sec. 10. Original civil jurisdiction of the Superior Courts. 11. Terms of the several Superior Courts. TITLE III. GENERAL PROVISIONS AS TO CIVIL ACTIONS. Sec. 12. Forms of civil actions — Distinction between actions at law and suits in equity abolished. 13. Parties designated, plaintiff and defendant. 14. Actions on judgments when they may be brought. 15. Feigned issues abolished. TITLE IV. LIMITATION OF ACTIONS. CHAPTER I. Actions in General* Sec 16. Time of commencing actions in general. 17. Period of limitation; objection must be taken by answer. CHAPTER II. Time of commenciu-g actions for the recovery ot real property. Sec. 18. When the State will not sue. Thirty years possession. Twenty- one years possession under colorable title. 19. Such possession valid against claimants under the State. 20. When persons having title must sve, ANALYSIS. xxi Sec' 21. Proviso in case of judgment for plaintiff reversed, &c. 22. Seizin within twenty years when necessary. 23. When adverse possession for twenty years. 24. Action after entry. 25. Possession presumed. Occupation when deemed under legal title. 26. Relation of landlord and tenant. 27. Persons under disabilities. 28. Cumulative disabilities. 29. Railroads, &c., not barred. CHAPTER III Time of commencing actions other than for the recovery of real property. Sec. 30. Periods of limitation prescribed. 31. Ten years. 32. Seven years. 33. Six years. 34. Three years. 35. One year. 36. Six months. 37. Action for other relief. 38. Limitations to apply to actions by the State. 39. Action upon an account current; the statute begins to run when. CHAPTER IV. General provision as to the time of commencing actions. Sec. 40. When action deemed commenced. 41. Exception — defendant out of the State. 42. Exceptions — persons under difficulties. 43. Peath of a person entitled before limitation expires. 44. Actions by aliens ; time of war not counted. 45. When judgment reversed, &c. 46. Time of stay by injunction, not counted. 47. Time during controversy about probate of will, &c, not counted. 48. Disability must exist when the right of action accrued. 49. When several disabilities ; all must be removed. 50. Acknowledgment by partner, &c, after dissolution. 51. Acknowledgment or new promise must be in writing. 52. Co-tenants ; when some barred, others not. 53. This title not applicable to bills, &c, of corporations, or to bank notes. 54. Nor to actions against directors, &c, of moneyed corporations or banking associations ; limitation in such cases prescribed. xxii ANALYSIS. TITLE V. l'ARTIES TO CIVIL ACTIONS. Sec. 55. Party in interest to sue. Action by grantee of land held adversely. Assignient of tiling in action. 56. Action by and against a married woman. 57. Action by executor, trustee, &c. 58. Infant to appear by guardian. 59. Appointment of guardian in particular action. 60. Who to be plaintiff. 61. Who to be defendant. 62. Parties to be joined, &c. 63. Parties to bills and notes, &c. 6i. Existing suits ; action when not to abate. 65. Court may determine controversy and interpleader. TITLE VI. OF THE PLACE OV TRIAL Of CIVIL ACTION'S. Sec. 66. Actions to be tried where subject matter situated. 67. Actions to be tried where cause of action arose. 68. Actions to be tried where defendant resides. 60. Change of place of trial. TITLE VII. OF THE MANNER OF COMMENCING CIVIL ACTIONS, AND THE SERVICE OF THE SUMMONS. Sec. 70. Manner of commencing civil actions. 71. Summons; by whom issued, &c. 72. Power to sue as a pauper ; how obtained. 7">. Form ot the summons. 74. What summons to contain. 75. Return of summons. 76. Service of the complaint. 77. Plaintiff failing to file complaint within ten days. 78. Plaintiff failing to file complaint within the time for defendants appearance. 79. Time of filing pleadings may be enlarged. 80. Plaintiff shall naim an attorney. ANALYSIS. xxiii Sec. 81. Notice of no personal claim. 82. Manner of service of summons. 83. Service by publication ; form of sumaions. 84. Manner and effect of publication. 85. Defendant allowed to defend before and after judgment. 86. Action for foreclosure of mortgage. 87. JoinLand several Debtors — Parties. 88. When service complete. 80. Proof of service. 90. Jurisdiction — Appearance — Appearance — Notice of Us pendens. TITLE VIII. OF THE PLEADINGS IX CIVIL ACTION. CHAPTER I. Of the Complaint. Sec. 91. Forms of pleading. 52. Complaint. 93. Complaint,, what to contain. CHAPTER II. The Demurrer. Sec. 91. Defendant to demur or answer. 9-3. When defendant may demur. 96. Demurrer shall specify grounds of objection. 97. How to proceed if complaint be amended. 98. Objection not appearing on complaint. 99. Objection when deemed waived. CHAPTER III. The Answer. Sec 100. Answer what to contain. 100. Counter claim ; Several defences. 101. Demurrer and answer. 102. Sham irrelevant defences. CHAPTER IV. The Reply. Sec 105. Reply ; demurrer to answer. 106. Motion for judgment on answer. 107. Demurrer to reply. xxiv ANALYSIS. CHAPTER V. Duties and powers of the Clerk of the'^Superior Court in relation to the pleadings, and in collateral matters. Sec. 108. Jurisdiction of clerk on pleading, &■&. 109. Either party may appeal 110. Duty of the clerk on appeal prayed. 111. Issues of law, sent to Judge. 112. Party to be heard before Judge. 1 13. Duly of Judge on appeal. 114. Judge to keep a Docket. 115. Judgment on matter of fact final : on' matter of law may be appealed from. CHAPTER VI. General rules of pleading. Sec. 116. Pleadings to be subscribed and verified. 117. Pleadings, how verified. 118. Items of amount ; particulars. 119. Pleadings, how construed. 120. Irrelevant or redundant ; indefinite or uncertain. 121. Judgments, 'how to be pleaded. 122. Conditions precedent, how to be pleaded ; instrument for pay- ment of money only. 123. Private statutes, how to be pleaded. 124. Libel and Blander, how stated in complaint. 125. Answer in such*cases. 126. What causes of action may be joined in the same complaint. 127. Allegation not denied, when to be deemed true. CHAPTER VII. Mistakes in pleading and amendments. Sec. 128. Material variance. 129. Immaterial variance. . 130. A failure of proof, when. 131. Amendment of course after allowance of demurrer. 132. Amendments by order, 133. Relief, in case of a mistake. 134. When plaintiff ignorant of the name of defendant 135. Errors or defects not substantial to be disregarded. 136. Supplemental pleadings. ANALYSIS. xxv CHAPTER VIII. Of the qualification and general duties of Clerks of the Superior Courts, Sec. 137. Bond of Clerk. 138. Bond, how approved. 139. Qualification of Clerks. 140. Failure to give bond, &c. 141. Office, where to be kept ; when to be open. 142. To receive official papers, &c, 143. To keep records. 144. Books to be kept by Clerks. 145. Books to be furnished by Secretary of State. 146. Papers in each action to be kept separate and filed together. 147. Solicitor to examine records. TITLE IX. OF THE PROVISIONAL REMEDIES IN CIVIL ACTIONS. Chapter I. — Aeeest and Bail. " II. — Claim and Delivery of Personal Property.' " III. — Injunction. " IV. — Attachment. " V. — Provisional Remedies. CHAPTER I. Arrest and Bail. SbC. 148. No person to be arrested, except as prescribed. 149. In what cases. 150. Order for arrest, by who to be made. 151. .Affidavit to obtain order for arrest. To what! actions this chap- ter applies. 152. Security by plaintiff before order for arrest. 153. Order, when made, and its form. 154. Affidavit and order to be delivered to sheriff, and copy to de- fendant. 155. Arrest, how made. 15C. Defendant to be discharged on bail or deposit. 157. Bail, how given. 158. Surrender of defendant. 359. Surrender of defendant. 160. Bail, how proceeded against xxiv ANALYSIS. CHAPTER V. Duties and powers of the Clerk of the'^ Superior Court in relation to the pleadings, and in collateral matters. Sec. 108. Jurisdiction of clerk on pleading, &o. 1 09. Either party may appeal. 110. Duty of the clerk on appeal prayed. 111. Issues of law, sent to Judge. 112. Party to be heard before Judge. 1 13. Duty of Judge on appeal. 114. Judge to keep a Docket. 115. Judgment on matter of fact final : on* matter of law may be appealed from. CHAPTER VI. General rules of pleading. Sec. 116. Pleadings to be subscribed and verified. 117. Pleadings, how verified. 118. Items of amount ; particulars. 119. Pleadings, how construed. 120. Irrelevant or redundant ; indefinite or uncertain. 121. Judgments, 'how to be pleaded. 122. Conditions precedent, how to be pleaded ; instrument for pay- ment of money only. 123. Private statutes, how to be pleaded. 124. Libel and slander, how stated in complaint. 125. Answer in such'cases. 126. What causes of action may be joined in the same complaint. 127. Allegation not denied, when to be deemed true. CHAPTER VII. Mistakes in pleading and amendments. Sec. 128. Material variance. 129. Immaterial variance. . 130. A failure of proof, when. 131. Amendment of course after allowance of demurrer. 132. Amendments by order, 133. Relief, in case of a mistake* 134. When plaintiff ignorant of the name of defendant 135. Errors or defects not substantial to be disregarded. 136. Supplemental pleadings. ANALYSIS. xxv CHAPTER VIII. Of the qualification and general duties of Clerks of the Superior Courts, Sec. 137. Bond of Clerk. 138. Bond, how approved. 139. Qualification of Clerks. 140. Failure to give bond, &c. 141. Office, where to be kept ; when to be open. 142. To receive official papers, &c. 143. To keep records. 144. Books to be kept by Clerks. 145. Books to be furnished by Secretary of State. 146. Papers in each action to be kept separate and filed together. 147. Solicitor to examine records. TITLE IX. OF THE PROVISIONAL REMEDIES IN CIVIL ACTIONS. Chapter I. — Areest and Bail. " II. — Claim and Delivery of Personal Property.* " III. — Injunction. " IV. — Attachment. " V. — Peoyisional Remedies. CHAPTER I. Arrest and Bail. SbC. 148. No person to be arrested, except as prescribed. 149. In what cases. 150. Order for arrest, by who to be made. 151. .Affidavit to obtain order for arrest. To what actions this chap- ter applies. 152. Security by plaintiff before order for arrest. 153. Order, when made, and its form. 154. Affidavit and order to be delivered to sheriff, and copy to de- fendant. 155. Arrest, how made. 15G. Defendant to be discharged on bail or deposit. 157. Bail, how given. 158. Surrender of defendant. 159. Surrender of defendant. ICO. Bail, how proceeded against xxvi ANALYSIS. •Sbc. 161. Bail, how exonerated. 162. Delivery of undertaking to plaintiff, and its acceptance or rejec- tion by him. 163. Notice of justification. New hail. 164. Qualification of hail. 165. Justification of hail. 166. Allowance of bail. 167. Deposit with the Sheriff. 168. Payment of deposit into court. 169. Substituting bail for deposit. 170. Deposit, how disposed of. 171. Sheriff, when liable as bail. 172. Proceedings on judgment against sheriff. 173. Bail liable to sheriff. 174. Vacating order of arrest or reducing bail. 17-5. Affidavits on motion. CHAPTER II. Claim and Delivery- of Personal Property. Sec. 176. Delivery of personal property. 177. Affidavit and its requisites. 178. Requisition to sheriff to take and deliver the property. ] 79. Security by plaintiff. 180. Exception to sureties. 181. Defendant, when entitled to re-delivery. 1S2. Justification of defendant's sureties. 183. Qualification and justification of sureties. 18 4. Properly, how taken when concealed in building or inclosure. 185. Property,' how kept. 186. Claim of property by third person. 187. Notice and affidavit, when and where to be filed. CHAPTER III. Injunction. Sec. 188. Injunction by order. 189. Injunction, in what cases. 190. At what time it may be granted. Copy affidavit to be served. 191. Injunction after answer. 192. Security upon injunction. Damages. 193. Order to show cause. Restraint in meantime. 194. Security upon injunction to suspend business of corporation. 195. Motion to vacate or modify injunction. 190. Affidavits on motion. ANALYSIS. xxvii CHAPTER IV. Attachment. Sec. 197. Property of foreign corporation*, and of non-resident or abscond- ing, or concealed defendants, may be attached. 108. Publication to be made. 199. Warrant, by whom granted. '-200. When warrant granted by Justice of the Peace. 201. In what cases warrant may be issued. Affidavits may be filed. 202. Security on obtaining warrant. 203. Warrant, to whom directed and what to require. 204. Mode of preceding in executing warrant. 205. Proceedings in case of perishable property or vessels. 206. Interest in corporations or associations liable to attachment. 207. Attachment, how executed on property incapable of manual delivery. 208. Certificate of defendants interest to be furnished. 209. Judgment, how satisfied. 210.' When action to recover notes, &c, of defendant, may be prose- cuted by plaintiff in tlfe action in which the attachment issued. 211. Bond to sheriff on attachment, how disposed of on judgment for defendant, 212. Discharge of attachment, and return of property or its proceeds, to defendant oh his appearance in action. 213. Undertaking on the part of the defendant. Discharge of attach- ment. 214. When the sheriff to return warrant and proceedings thereon. CHAPTER V. Provisional Remedies. Sec. 215. Powers of court as to receiver's, deposit of money, &c, in court, and other provisional remedies. Judgment for sum admit- ted due. TITLE X. OX THE TRIAL AND JUDGMENT IN CIVIL ACTIONS. Chapter I. — Judgment upon failure to answer. &c. " II. — Issues and the mode of trial. "' III. — Trial by Jury. " IV. — Trial by the Court. " V. — Trial by Referees. ' : VI. — The manner of entering judgment. xxviii ANALYSIS. CHAPTER I. Judgment upon failure to answer, &c. Sec. 216. Judgment defined. 217. Judgment on failure of defendant to answer, or for excess ove*- counter-claim. 218. Judgment on prirolous demurrer, answer or reply. CHAPTER II. Issues and Mode of Trial. Sbc. 219. The different kinds of issues. 220. Issue of law. 221. Issue of fact. 222. On issues of both law and fact, the issue of law to be first tried,. 223. Trial defined. 224. Issues, how tried. 225. Other issues to be tried by the Court or Judge. 226. Issues of fact'when to be tried. 227. Trial may be postponed by Clerk, when. 228. Trial postponed by Judge in term, when. 229. Criminal calendar first disposed of. Order of disposing of issue?. in civil actions. CHAPTER III. Trial by Jury. Sec. 230. Separate trials. 231. Judge to be furnished with copy of pleadings. 232. General and special verdicts defined. 233. When jury may render either general or special verdict, and when, Judge may direct special finding. 234. On special finding with general verdict, the former to control. 235. Jury to assess defendant, damages in certain cases. 236. Entry of the verdict. Motion for new trial on Judge's minute*. 237. Judge to explain law, but to express no opinion on facts. 238. Judge to put his instructions in writing. 239. Couusel to put their prayer for instructions in writing. CHAPTER IV. Trial by the Court. Sec 240. Trial by jury, how waived. 241. On trial by the Court, judgment how to be given. 242. Exceptions, how and when taken. 243. Proceedings upon judgment on issm of law. ANALYSIS. xxix CHAPTER V. Trial by Referees. Sec. 244. All issues referable by consent. 245. When reference may be compulsively ordered. 246. Mode of trial ; Effect of report ; Review. 247. Referees, bow chosen. Who may be Referee.- Report. CHAPTER VI. Manner of Entering Judgment. -Sec. 248. Judgment may be for, or against, any of the parties ; may grant dependent affirmative relief. Complaint may be dismissed for neglect to prosecute action. Judgment against married wo- man. 249 • The relief to be awarded to the plaintiff. 250, Rate of damages, where damages are recoverable. 251. Judgment in action for recovery of personal property. '252. Clerk to enter judgments on Judgment Book, also judgments rendered in other Courts, and index them. 253. Judgment roll. 254. Existing suits, Judgments when and how to be docketed. Se- cured on appeal. TITLE XL OF THE EXECUTION OF THE JUDGMENT IN CIVIL ACTIONS. CHAPTER I. The Execution. Sbc. 255. Execution within three years of course. 256 After^three years, to be issued only by leave of Court. Leave how obtained. 257. Judgments, how enforced. UoS.^The different kinds of execution. 259. To what counties execution may be issued. Execution against a married woman. 260. Execution against the person, in what cases. 261. Form of the execution. 262. To be returnable in sixty days. 263. Existing laws re'ating to executions continued until otherwise provided, xxx ANALYSIS. CHAPTER II. Proceedings Supplementary to the Execution. Sec. 264. Existing suits. Order for discovery of property. Examination of judgment, debtor, &c. 265. Existing suits. Any debtor may pay execution against his creditor. 266. Existing suits. Examination of debtors of judgment debtor, or of those having property belonging to him. Joint debtors. 267. Existing suits. Witness required to testify. 268. Existing suits. Compelling party or witnesses to attend. 269. Existing suits. What property may be ordered to be applied to the execution. 270. Existing suits. Judge may appoint receiver, and forbid transfer, &o, of property — order, &c. 271. Existing suits. Proceedings upon claim of another party to property, or on denial of indebtedness to judgment debtor. 272. Existing suits. -Reference by Judge. 273. Existing suits. Costs of proceeding. 214. Existing suits. Disobedience of order how punished. TITLE XII. OF THE COSTS IN CIVIL ACTIONS. Sec. 275. Fee bill of Attorney abolished. 276. When allowed of course to the plaintiff. Several actions on one instrument. 277. When allowed to defendant. 278. When allowed to either party in the discretion of the court. 279. Amount of costs allowed. 280. Additional allowance. 281. Allowance, iiow computed. Difficult and extraordinary cases. 282. Report, when allowed. 283. Costs, how to be inserted in judgment. Adjustment of inter- locutory costs. 284. Fees of clerks, sheriffs, &e. 285. Referees fees, 286. Costs against infant plaintiff. 287. Costs in action by or against an execution or administrator, trus- tees of an express trust, or a person expressly authorized by statute to sue. 288. Costs in civil actions by the State. 289. Costs in actions by the State, for a private person. 290. Costs against assignee after action brought, of cause of action. ANALYSIS. xxxi Sec. 291. Costs on a settlement. 192. Costs on appeals. 293. Costs in existing actions. 294. Costs in special proceedings. 295. Costs on appeals from Justices of the Peace. TITLE XIII. OF APPEALS IN CIVIL ACTIONS. Sec. 296. Existing suits ; writs of error abolished, and appeals substituted. 297. Orders made out of court, how vacated or modified. 298. Existing suits; who may appeal. 299. Appeal; in what cases it may be taken. 300. When taken ; execution not suspended when. 301. Appeal to be entered by clerk on Judgment Docket, case how stated and settled. 302. Clerk to make copy of judgment roll, and to seed to Clerk of Supreme Court. 303. On appeal, security must be given, or deposit made, unless waived . 304. Existing suits — on judgment for money — security to stay execu- ecution — new undertaking on sureties in first — becoming in- solvent. 305. Existing suits — if judgment be to deliver document or personal property, it must deposited or security given. •306. Existing suits — if to execute conveyance, it must be executed and deposited. 307. Existing suits — security where judgment is to deliver real prop- erty, or for a sale of mortgaged premises. 308. Existing suits — stay of proceedings upon security being given. 309. Existing suits — Undertakings may be in one instruments or several. 310. Existing suits — security to be approved and to justify. 311. Existing suits — perishable property may be sold notwithstanding appeal. 312. Existing suits, — undertaking must be filed. 313. Existing suits — intermediate orders effecting the judgment may be renewed on the appeal. • 314. Existing suits — judgment on appeal — restitution. xxxii . ANALYSIS. TITLE XIV. OF THE MISCELLANEOUS PROCEEDINGS IN CIVIL ACTIONS AND GENERAL PROVISIONS. CHAPTER I. Submitting a Controversy without Action. Sec. 315. Controversy how submitted without action. 316. Judgment. 317. Judgment how enforced or appealed from. CHAPTER II. Proceedings against Joint Debtors, Heirs, Devisees, legatees, and Tenants holding under a Judgment Debtor, Sec. 318. Parties, not summoned in action on joint contract, may be sum- moned after judgment. 319. If judgment debtor die, his representatives may be summoned. 320. Form of summons. 321. To be accompanied by affidavit of amount due. 322. Party summoned may answer and defend. 323. Subsequent pleadings and proceedings same as in action. 324. Answer and reply to be verified. CHAPTER III. Confession of Judgment without Action. Sec. 323. Judgment may be confessed for debt due or contingent liability. 326. Statement in writing and form thereof. 327. Judgment and execution. CHAPTER IV. Offer of the dependant to compromise the whole or a part of the Action. Sec. 328. Offer of compromise. 329. Dependant may offer to liquidate damages conditionally. 330. Effect of acceptance or refusal of offer. CHAPTER V. Admission or Inspection of Writing. Sec.J,331. Existing suits, Inspection and copy, of book", papers and docu- ments, how obtained. 334. 335. 336. 337. 338. ANALYSIS. xxxiii CHAPTER VI. Examination of Parties. Sec. 332. Action for discovery abolished. 333. Existing suits ; a party may examine his adversary as a witness. Such examination also allowed before ferial. Party how compelled to attend. Testimony of party may be rebutted. Effect of refusal to testify. Testimony of a party not responsive to the inquir- ies, may be rebutted by the oath of the party calling him. 339. Existing suits ; Persons for whom action is brought or defended may be examined. 340. Existing suits ; Examination of co-plaintiff or co-defendant. 341. Husband and wife, witnesses. CHAPTER VII. Examination of Witnesses. Sec. 342. Existing suits ; Interest not to exclude a witness. 343. Existing suits ; parties to actions and special proceedings may be examined as witnesses on their own behalf, except in certain cases. CHAPTER VIII. Motions and Orders. Sec. 344. Definition of an order. 345. Definition of a motion. Motions how and where made, Stay of proceedings, compelling parties to testify, Decision on motion. 346. Notice of motion. CAHPTER IX. Entitling Affidavits. Sec. 347. Existing suits ; affidavits defectively entitled, valid. CHAPTER X. Computation of Time. Sec 348. Time, how computed. CHAPTER XI. Notes and Filing and Service of Papers. Sec 340. Existing suits. Notice, &c, how served; subpoena for witnesses 350. Existing suits ; service by mail. 351. Existing suits ; service by mail. 352. Existing suits ; double time when served by mail. 353. When this chapter does not apply. C xxxiv ANALYSIS. CHAPTER XII. Duty of Sheriffs and Coroners. Sec. 354. Duty of sheriff and coroner in serving or executing process,[and how enforced ; may return process by mail. CHAPTER XIII. Accountability of Guardians. Sec. 355. Guardian not to receive property until security given. CHAPTER XIV. Powers of Referees. Sec. 356. Powers of referees. CHAPTER XV. Miscellaneous Provisions. Sec. 357. Papers lost or withheld, how supplied. 358. Where undertaking to be filed. 359. Time for publication of notices, how computed, how improved. 360. Laws of other States and governments. TITLE XV. • ACTIONS IN PARTICULAR CASES. CHAPTER I. Actions against Foreign Corporation. Sec. 361. Where and by whom brought. CHAPTER II. Actions in place of scire facias, quo warranto, and of informations in the nature of quo warranto. Sec. 362. Scire facias and quo warranto abolished and this chapter sub- stituted. 363. Action may be brought by Attorney-General to vacate a charter, by direction of the Legislature. 364. Action to annul a corporation, when and how brought by Attor- ney-General, by leave of the Supreme Court. ANALYSIS. xxxv Sec. 365. Leave how obtained. 366. Action upon information or complaint of course. 367. Action, when and how brought to vacate letters patent. 368. Relator, when to be joined as plantiff. 369. Complaint, and arrest of defendant, in action for^usurping an office. 370. Judgment in such actions. 371. Assumption of office, &c, by relator, when judgment isjn his favor. 372. Proceedings against defendant, on refusal to deliver books'or papers. 373. Damages, how recovered. 374. One action against several persons claiming office or franchise. 375. Penalty for usurping office or franchise ; how awarded. 376. Judgment of forfeiture against a corporation. 377. Costs against a corporation, or persons claiming to.be such, - how collected. 378. Restraining corporation, and appointment of receiver. 379. Copy of judgment-roll against corporation, where to be filed. 380. Entry of judgment relating to letters patent. ' 381. Actions for forfeiture of property to the State. CHAPTER III. Action for the Partition of Real Property,*&c. Sec 382. Provisions of the Revised Code applicable to actions for partition. CHAPTER IV. Actions for Waste and Nuisance. Sec 383. Action of waste abolished. Waste how remediable. 384. Provisions of Revised Code applicable to action for waste under this act. 385. When judgment of forfeiture and eviction to be given. 386. Writ of nuisance abolished. 387. Remedy for injuries heretofore remediable by writ of nuisance. TITLE XVI. General Provisions. Sec. S88. Definition of " real property." 389. Definition of "personal property." 390. Definition of "property." 391. Rule of construction. xxxvi ANALYSIS. Sec. 392. Statutory provisions inconsistent with this act repealed. 393. Rules and practice inconsistent with this act abrogated. 894. Judges of Supreme Court shall make rules of practice. 895. Judges of Superior Courts to suggest rules. 396. If Judge'of a Superior Court not present, Court to be adjourn- ed, when. 397.J|If trial for felony in progress at expiration of a term, term to be prolonged. 398. Pleadings, &c, how written. 399. Judges of Superior Courts to issue writs of habeas corpus. TITLE XVII. Regulations Respecting Existing Suits. Sec."400. Clerk of Superior Court to transfer existing suits in which no final judgment. 401. Suits not transferred to abate. 402. If transferred how proceeded with. 403. Existing judgments not dormant, may be transferred. 404. Dormant judgments, how revived. 405. Actions to recover debts, embraced in stay law. 406. Executions levied on personal property. 407. Executions satisfied. 408. Executions not levied at all, or levied on real property. 409. Executions to be dccketed. 410. Penalty on Sheriff for failing to return. 411. Judgments not dormant, when. 412.^0rdinance of 11th March, 1868, not effected. TITLE XVIII. OF THE SUPREME COURT. Sec 413. Jurisdiction of Supreme Court. 414. Cases, how taken to Supreme Court. 415. Claims against the State. 416. Manner of prosecutirg claims against the State. ANADYSIS. sxxvii TITLE XIX. PROBATE COtmTS. CHAPTER I. Jurisdiction and Powers. Sec. 417. Judges of probate. 418. Jurisdiction. 419. Disqualification to act. 420. "Waiver of disqualification. 421. Removal of proceedings. 422. Enumeration of powers. 423. Haw party may appear. 424. Judge of Probate not to act as Attorney. 425. Seals. 426. Files. 427. Records. 428. Books to be furnished by Secretary of State, and to.be indexed. CHAPTER II. Probate of Deeds. Sec. 429. How made, &c. 430. When land lies in two or more counties. 431. Official bonds. 432. When Judge of probate disqualified to act. CHAPTER III. Jurisdiction over the Estates of Deceased Persons. 434. WhenProbate Judge has jurisdiction of the estate. 435. Probate Jud^e first acquiring jurisdiction, to have exclusive jurisdiction. CHAPTER IV. Probate of Wills. Sec. 435. How wills admitted to probate. 436. Executor not incompetent as a witness. 437. Proof and examinations in writing. 438. Probate, how far conclusive. 4£9. Who may apply for probate. 440. Who may apply when executor does not. 441. What to be shown on application. 442. Production of will compelled by process. xxxviii ANALYSIS. Sec. 443. Will made without the State ; how proved. 444. Will of citizen or subject of anoflier country ; how allowed and recorded in this State. 445. Will of citizen of this State proved elsewhere ; how proved and recorded here. 446. Caveat. 447. Trafiferred to Superior Ccurt ; when. 448. Order to suspend proceedings. CHAPTER V. Letters Testamentary. Sec. 449. Who is disqualified to serve as executor. 450. Executor may renounce. 451.* When excutor deemed to have renounced. 452. Executor under disqualification of age or absence. CHAPTER VI. Letters of Administration with the Will Annexed. SEC r 453. To be granted; when and to whom. 454. Qualifications, &c. 455. Will of testator to be observed. CHAPTER VII. Letters of Administration. Sec. 456. To whom whom granted. 457. Disqualification. 458. ^Joining persons not entitled. 459. Renunciation of persons having prior right. 460. Persons having prior right disqualified or absent. 461. What must be shown on application. 462. Contested administration. CHAPTER VIII. Letters of Collectic n. Sec. 463. When to issue and to whom. 464. i Qualification, &c. 465. Authority, &c. 466. Authority, when to cease. &c. ANALYSIS. xxxix CHAPTER IX. General Provisions Respecting Executors. Sec. 467. Oath, &c. 468. Bond, &c. 469. Revocation of letters on proof of will, &c. 470. Revocation on ground of disqualification or default. 471. Letters, how issued and tested. CHAPTER X. Guardian and Ward. Sec.*472. Power over oiphan's estates, and to appoint guardians. 473. Inquisition of Lunacy. 474. Proceedings on application for guardianship. 475. Letters of appointment. 476. Reference to sections 456, 467, 469. CHAPTER XI. Accounting by Executors, Administrators, Collectors and Guardians, and Auditing by Judge of Probate. Sec. 477. Make return on oath ; when. 478. Annual accounts. 479. Failure to account. 480. Vouchers. 481. Final accounts. CHAPTER XII. Masters and Apprentices. Sec. 482. Binding to be by indenture. 483. Remedy thereon. 484. Who may be apprenticed. 485. For what time bound. 486. Duties of master. 487. Duty of Probate Judge. 488. Apprentices, how compelled to serve. 4S9. Misconduct of masters. CHAPTER XIII. Transfer and Appeal. Sec. 490. Issues of fact and matters of law. 491. No bond required. 492. Appeals when taken and by whom. xl ANAEYSIS. CHAPTER XIV. What Laws Repealed and Unrepealed. Sec. 493. What laws repealed and unrepealed. TITLE XX. THE COURTS OF JUSTICES OF THE PEACE. CHAPTER I. Maimer of Commencing Civil Actions in Justice's Courts. Sec. 494. Laws repealed. 495. Summons. 496. Summons, by whom issued. 497. Service and return of summons. CHAPTER II. Jurisdiction and Manner of Proceeding'. Sec. 498. Jurisdiction. 499. Where sum demanded exceeds two hundred dollars. «*>00. Answer to title. 501. Action to be dismissed, when. 502. Another action may be brought. 503. Docketing Justice's judgment. 504. Rules of proceeding in Justice's Court. 505. Execution ; on what, and from what time a lien. 506. Stay of execution ; security. 507. Former judgment. 508. Application for rehearing. 509. Justice's judgment removed to another county ; how. 501. Witnesses, penalties, &c. CHAPTER III. Arrest and Bail. Sec 511. Provisions of Code of Civil Procedure Applicable. 512. Arrest, in what cases. 513. Order for arrest, by whom made. 514. Affidavit to obtain order. 515. To what actions this chapter applies. ANALYSIS. xli CHAPTER IV. Attachment. Sec. 516. Provisions of Code of Civil Procedure Applicable. CHAPTER V. Jury Trials in courts of Justice's of the Peace. Sec. 517. Jury list furnished to each Justice. 518. Justice to keep jury bos. 519. Names of jurors to be deposited in jury box. 520. When trial by jury demanded or waived. 521. Jury drawn and trial postponed. 522. Summoning of the jury, 523. The jury for the trial of the cause. 524. Challenge. 525. What names to be be returned to jury box or destroyed. 526. Tales jurors may be summoned. 527. Jury sworn and empannelled — verdict, &c. 528. New trial — appeal. 520. Less than six, may be a jury, when. 530. Not compelleed to serve out of township. 531. Jurors seiving on a trial, &c. 532. Deposit of jury fees. 533. Adjournment upon return of the jury. CHAPTER VI. Appeal. Sec, 534. Appeal, execution. 545. Appeal, when to be taken. 536. Notice of appeal, on whom served. 537. Return to the appeal. 538. Defective return. 539. On return to the appeal wbat to be done. 540. Appeal on what heard. 541. Execution of the judgment, how stayed; 542. Same, undertaking to be given. 543. Same, delivery and service of the order, on whom. 544. Restitution. 545. Costs how awarded. xlii ANALYSIS. CHAPTER VII. ^General Provisions respecting Justices of the Peace. Sec. 546. Within what time to qualify. 547. Removal out of township six months to forfeit office. 548. Resignation. 549. May issue process and try causes, where. 550. Office under the United States. 551. Punishment on conviction of infamous crime, &c. 552. Fifing docket with clerks. 553. Delivery of unfilled docket to successor. 554. Filing and delivery, how enforced. TITLE XXI. FEES. Chapter I. — General Provisions. " II. — Fees of Solicitors. * III. — Fees of Clerks of the Superior Courts. 1. In Civil Actions. 2. In Criminal Actions. IV. — Fees of Registers of Deeds. V. — Fees of Sheriffs. VI. — Fees of Coroners. VII. — Fees of Justices of the Peace. VIII. — Fees of Constables. IX. — Fees of Jurors. X. — Fees and Salaries of Clerks of the Supreme Court. CHAPTER I. General Provisions. Sec. 555. Fees of officers, by whom, and how, payable. 556. Copy sheet defined. 557. Fees on returns to Secretary of State. 558. Officers to make returns of fees. 559. Clerks to furnish blank writs. 560. Who to pay costs in criminal actions. 561. Half fees, if convict insolvent. 562. How fees of officers received. ANALYSIS. xliii CHAPTER II. Fees of Solicitors. Sec. 563. When to receive fees salary. 564. Solicitors' fees*— for what. CHAPTER III. The fees of Clerks of the Superior Courts. Sec. 565. What fees and for what. I. In Civil Cases. II. In Criminal Actions. CHAPTER IV. Fees of Registers of Deeds. Sec. 566. Specification. CHAPTER V. Fees of Sheriffs. Sec. 567. Specifica'iou. CHAPTER VI. Fees of Coroners. Sec. 568. Specification. CHAPTER II. Fees of Justices of the Peace. Sec. 569. Specifications. CHAPTER VIII. Fees of Constables. Sec. 570. Like those of the sheriff. CHAPTER IX. Fees of Jurors. Sec. 571. Day and mileage. CHAPTER X. Fees ami Salaries of the Supreme Court. Sec. 572. To remain as heretofore. xliv ANALYSIS. TITLE XXII. Of the printing of the Code of Civil Procedure. Sec. 573. Code as printed under the supervision of the Commissioners-;. evidence of the law. 574. Copies, how distributed. TITLE XXIII. Ratification of Statntes composing this Code* Sec. 575. Date ot Ratification. Code of Civil Procedure. THE Code of Civil Procedure OF NORTH CAROLINA. Whereas, it is ordained by Section 1, Article IV of the Constitution of North Carolina, that : " The distinction between actions at law and suits in equity and the forms of all such actions and suits shall be abolished, and there shall be in this State but one form of action for the enforcement or protection of private rights or the redress of private wrongs, which shall be denominated a civil action ; and every action prosecuted by the people of the State as a party against a person charged with a public offence shall be termed a criminal action. Feigned issues shaH also be abol- ished, and the fact at issue tried by order of court before a jury." The General Assembly of the State of North Carolina, for the purpose of carrying into effect the said section, and regu- lating the practice and procedure in civil actions, in the seve- ral courts of this State, do enact as follows : GENERAL DEFINITIONS AND DIVISIONS. ,1. — Remedies. Remedies in the courts of justice are divided into — 1. Actions. 2. Special proceedings. 2 THE CODE OF §?.— Actions. An action is an ordinary proceeding in a court of justice, by which a party prosecutes another party, for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offence. §3. — Special Proceedings. Every other remedy is a special proceeding. §4. — Division of Actions. Actions are of two kinds : 1. Civil. 2. Criminal. §5.— Criminal Action. A criminal action is, 1. An action prosecuted by the State as a party against a person charged with a public oflFence, for the punishment thereof. 2. An action prosecuted by the State, at the instance of an individual, to prevent an apprehended crime against his person or property. §6.— Civil Action. Every other is a civil action. §7. — Remedies not Merged. Where the violation of a right admits both of a civil and criminal remedy, the right to prosecute the one, is not merged in the other. TITLE I. GENERAL PROVISIONS IN REGARD TO ACTIONS. §8. — To what actions these enactments are applicable. The following enactments are applicable to : 1. Civil actions, which at the approval, by the government •of the United States, of the Constitution adopted by a Conven- CIVIL PROCEDURE. 3 tion of this State, on the sixteenth day of March, 1868, were pending in any County Court, Superior Court of law, or Court of Equity, of this State, and which were not founded on contract, as far as they may be, according to the stage of pro- gress of the action, and having regard to its subject and not to its form. 2. All civil actions which shall be commenced after the rat- ification of this Act, not founded on a contract made prior to its ratification. 3. All civil actions commenced prior to the ratification of this Act, or which shall be commenced hereafter, for causes of action included within the provisions of an ordinance, entitled "An Ordinance respecting the jurisdiction of the courts of this State,'' ratified on the fourteenth day of March 1868, shall be governed in respect to the practice and procedure therein, by the provisions of that ordinance, and by the existing laws, as far as they may be, except as to form. — [See Appendix.] 4. All actions commenced prior to the ratification of this Act, or which shall be hereafter commenced, founded on a con- tract made prior to the ratification of this Act, and not em- braced in the ordinance above-mentioned shall be governed in respect to the practice and procedure therein, up to, and in- cluding the judgment, by the laws existing prior to the ratifi- cation of this Act, as near as may be, and the practice in such actions subsequent to judgment, shall be governed by the en- actments of this Act. 39.— Action upon an account Current, when cause accrnps. 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. 9 18 THE CODE OF CHAPTER III. ' i • GENERAL PROVISIONS AS TO THE TIME OF COMMENCING ACTIONS. $40. — When action deemed commenced. An action is commenced as to each defendant when the summons is issued issued against him. 441.— Exception; Defendant out of the State. If when the cause of action accrue against any person, he shall be out of the State, such action may be commenced within the terms herein respectively limited, after the return of such person into this State ; and if after such cause of action shall have accrued, such person shall depart from and reside out 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. 442. — Exceptions; Persons under Disabilities. If a person entitled to bring an action mentioned in the last chapter, except for a penalty or forfeiture, or against a sheriff or other officer for an escape, be at the time the cause of action accrued, either, 1. Within the age of twenty-one years; or 2. Insane; or 3. Imprisoned on a criminal charge, or in execution under the sentence of a criminal court for a term less than his natural life; or 4. A married woman; Then such person may bring their actions within the times before limited, after their disabilities shall be removed. §43.— Death of person entitled, before limitation expires. 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 com- menced by his representatives after the expiration of that CIVIL PROCEDURE. 19 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 commencement thereof, and the cause of action survive, an action may be com- menced against his executors or administrators after the expiration of that time, and within one year after the issuing of letters testamentary or of administration. §14.— Actions by Aliens; time of war not counted. When a person shall be an alien, subject or citizen of a country, at war with the United States, the time of the con- tinuance of the war shall not be part of the period limited for the commencement of the action. §45.— Where judgment reversed &c ; Plaintiff' may commence new action. If an action shall be commenced within the time pre- scribed therefor, and the plaintiff be non-suited, or a judg- ment therein be reversed on appeal, or be arrested, the plain- tiff, or if he die and the cause of* action survive, his heirs or representatives may commence a new action within one year after such non-suit, reversal, or arrest of judgment. §46.— Time of Stay by Injunction. &C, not counted. When the commencement of an action shall be stayed by injunction or statutory prohibition, the time of the contin- uance of the injunction or prohibition shall not be part of the time limited for the commencement of the action. $47.— Time during controversy about Probate of Will, «Scc, not counted. In reckoning time when pleaded as a bar to suits, that period shall not be counted, which elapses during any con- troversy on the probate of a will or granting letters of ad- ministration, unless there be an administrator, appointed during the pendency of thesuit, and it be provided by law, that suit may be brought aga:'rist him. 20 THE CODE OF §48. — Disability must exist wheii the right of action accrued. No person shall avail himself of a disability, unless it existed when his right of action accrued. §49. — Where several Biasbilities, all must he removed. Where two or more disabilities shall co-exist at the time the right of action accrues, the limitation shall not attach until they all be removed. §50.— Acknowledgment h} r partner, &c, after dissolution. No act, admission or acknowledgment by any partner after the dissolution of the co-partnership, or by any of the makers of a promissory note or bond after the statute of limitations shall have barred the same, shall be received as evidence to repel the statute, except against the partner or maker of the promissory note or bond, doing the act, or making the admission or acknowledgment. §51. — Acknowledgment or new promise must be in writing - . No acknowledgment or promise shall be received as evi- dence of a new or continuing contract, whereby to take the case out of the operation of this title, unless the same be contained in some writing signed by the party to be charged thereby; but this section shall not alter the effect of any payment of principal or interest. §52. — Co-tenants; when some barred, and others not. In actions by tenants in common or joint tenants of per- sonal property to recover the same, or damages for the detention of or injury thereto, and any of them shall be barred of their recovery by limitation of time, the rights of the other shall not be affected thereby; but they may recover according to their right and interest notwith- standing such bar. §53.— This title not applicable 1© bills, &e., c! corporations, or (o biiiik noicst This title shall not affect actions to enforce the payment of bills, notes or other evidences of debt, issued by moneyed corporations, or issued or put in circulation as money. CIVIL PROCEDURE. 21 §51 — Nor to actions against Directors, &c, of 3Ioneyed Corporations or Banking Associations^ Limitation in such cases prescribed. This title shall not affect actions against directors or stockholders of any moneyed corporation, or banking asso- ciation which shall hereafter be incorporated by or under the laws of this State, to recover a penalty or forfeiture imposed, or to enforce a liability created by law; but such actions must be brought within three years after the dis- covery by the aggrieved party, of the facts upon which the penalty or forfeiture attached, or the liability was created. • TITLE Y. PARTIES TO CIVIL ACTIONS. §55. — Action to be by party in interest. Action by g f laud held- adverse!}*. — Assignment of thisig in action. Every action must be prosecuted in the name of the real party in interest, except as otherwise provided in section fifty-seven; but this section shall not be deemed to authorize the assign mentof a thing in action not aris- ing out of contract. But an action may be maintained by a grantee of land in the name of a grantor, or his or her heirs or legal representatives, when the grant or grants are void by reason of the actual po. ; of a person claiming under a. title adverse to that of the grantor at the time of the delivery of the grant, and the plaintiff shall be allowed to prove the facts to bring the case within this provision. In the case of an assignment of a thing in action, the action by the assignee shall be without prejudice to any set-off or other defence existing at the time of, or 1 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 u\ I consideration, before due. 22 THE CODE OF §56. — Action by, and against, a Married Woman. When a married woman is party, her husband must be joined with her except that, 1. When the action concerns her separate property she may sue alone; 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. §57.— Action by Executor, Trustee, &«. An executor or admininistrator, 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. ^58.— Infant to appear by Guardian. When an infant is a party, he must appear, by guardian, who may be a testamentary or general guardian, appointed as is provided by law for the appointment of such guardians, or a guardian for the prosecution or defence of the par- ticular action, appointed by the court in which the action is prosecuted. §59. — Appointment of Guardian in Parthalar action. A guardian to prosecute or defend a particular action in behalf of an infant shall be appointed as follows: 1. When the infant is plaintiff, upon the application of the infant, if he be of the age of fourteen years; or if under that age, upon the application of his general or testamen- tary guardian, if he has any, or of a relative or friend of the infant: if made by a relative or friend of an infant, notice thereof must be first given to such guardian, if he has one; if he has none, then to the person with whom such infant resides. An infant plaintiff, or his guardian, must give security for the costs of the defendant, as is required of plaintiffs. CIVIL PROCEDURE. 23 2. When the infant is defendant, upon the application of the infant, if he be of the age of fourteen years, and apply within twenty days after service of the summons. If he be under the age of fourteen, or neglect so to apply, then upon the application of any other party to the action, or of a relative or friend of the infant, after notice of such appli- cation being first given to the general or testamentary guardian of such infant, it he has one within this State : if he has none, then to the infant himself, if over fourteen years of age, and within the State ; or if under that age and within the State, to the person with whom such infant resides. 3. And in actions for the partition of realpioperty, or for the foreclosure of a mortgage or other instrument, when an infant defendant resides out of the State, or is temporarily absent therefrom, the plaintiff may apply to the court in which the action is pending, and will be entitled to an order designating some suitable person to be the guardian for the infant-defendant for the purpose of the action, unless the infant-defendant or some one in his bohalf, within a number of days after the service of a copy of the order, which num- ber of days shall be in the said order specified, shall pro- cure to be appointed a guardian for the said infant, and the court shall give special direction in the order for the man- ner of the service thereof, which may be upon the infant. 4. Andin case an infant-defendant havingan interest in the event of the action, shall reside in any State, with which there shall not be a regular communication by mail, on such facts satisfactorily appearing to the Court, the Court may appoint a guardian ad litem for such absent infant party, for the purpose of protecting the right of such infant in said action, and on such guardian ad litem, process, pleadings and notices may be served in the like manner as upon a party residing in this State. §60.— Who to be the plaintiff. 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 in this title. 24 ■ THE CODE OF §61. — Wno to be defendant. 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 determination or set- tlement 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 real estate, may be made parties plaintiff or defendant, as the case may require^ to any such action. §62. — Parties to be joined, &t. Of the parties to the action, those who are united in inter- est must be joined as plaintiffs or defendants ; but if the consent of any one who should have been joined as plaintiff cannot be obtained, he may be made a defendant, the reason thereof being stated in the complaint ; and when the ques- tion is one of a common or general interest of many persons, or where the parties may be very numerous, and it may be impracticable to bring them all before the Court, one or more may sue or defend for the benefit of the whole. §83. — Parlies to bills and noles, &c. Persons severally liable upon the same obligation or instrument, 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 plaintiff. §64. — Exls^lag salts. Action when not to aba'e. 1. No action shall abate by the death, marriage or other dis- ability of a party, or by the transfer of any interest therein, if the cause of action survive or continue. In case of death 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 con- tinued by, or against, his representative or successor in inter- est. 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. CIVIL PROCEDURE. 25 2. After a verdict shall be rendered in any action for a wrong, such action shall not abate by the death of any party, but the cases shall proceed thereafter in the same manner as in cases where the cause of action now survives by law. 3. At any time after the death, marriage, or other disability of the party plaintiff, the Court in which an action is pend- ing, upon notice to such persons as it may direct, and upon application of any person aggrieved, 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. The provisionsof this section shall apply as well to actions existing at the ratification of this act, as to those commenced subsequently thereto. §65.— Court may determine controversy and interpleader. The Court either between the terms, or at a regular term, according to the nature of the controversy, under the regu- lations contained in this Act, may determine any controversy before it, when it can be done without prejudice to the rights of others, or by saving their rights; but when a complete determination of the controversy cannot be had without the presence of other parties, the Court must cause them to be brought in. 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 the subject thereof, makes 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, may at any time before answer, upon affidavit, that a person not a parly to the action, and without collusion with him, makes against him a demand for the same debt or property, upon due notice to such person and the adverse party, apply to the Court for an order to substitute such person in his place, 26 THE CODE OF and discharge him from liability to either party, on his depositing in Court the amount of the debt, or delivering the property or its value, to such person as the Court may direct; and the Court may, in its discretion, make the order. TITLE VI. OF THE PLACE OF TRIAL OF CIVIL ACTIONS. §66. — Actions to be tried where sabjcct-niatter situated. Actions for the following causes must be tried in the county in which the subject of the action, or some part thereof, is situated, subject to the power of the Court to change the place of trial, in the cases provided in this Code. 1. For the recovery of real property, or of an estate or interest therein, or for the determination in any form, of such right or interest, and for injuries to real property ; 2. For the partition of real property ; 3. For the foreclosure of a mortgage of real property; 4. For the recovery of personal property distrained for any cause. 07. — Actions to be tried 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 in this Code; 1. For the recovery of a penalty or forfeiture, imposed by statute ; except that, when it is imposed for an offence com- mitted on a sound, bay, river or other body of water situated in two or more counties, the action may be brought in any county bordering on such sound, bay, river or other body of water, and opposite to the place where the offence was com- mitted; CIVIL PROCEDURE. 27 2. Against a public officer or person especially appointed to execute 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. §68.— Action, to be tried where Defendant resides. In all other cases the action shall be tried in the County in which 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 par- ties shall reside within the State, then the same may be tried in any county which the plaintiff shall designate in his sum- mons and complaint, subject however, to the power of the Court to change the place of trial, in the cases provided by statute. f69.— Change of place of trial. If the County designated for that purpose in the summons and complaint bo not the proper 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, as is provided in this section. The Court may change the place of trial in the following cases: 1. When the County designated for that purpose is not the proper County. 2. When the convenience of witnesses and the ends of justice would be promoted by the change. When the place of trial is changed, all other proceedings shall be had in the County to which the place of trial is changed, unless otherwise provided by the consent of the parties in writing duly filed, or order of Court; and the papers shall be filed or transferred accordingly. 28 THE CODE OF TITLE YII. OF THE MANNER OF COMMENCING CIVIL ACTIONS, AND THE SERVICE OF THE SUMMONS. §70. — Maimer of commencing civil actions. Civil actions in the Superior 'Courts of this State shall be commenced by the issuing of a summons. §71. — By whom issued, &c. The summons shall be issued by a Clerk of any Superior Court at the request of the plaintiff; but before issuing it, the Clerk shall require of the plaintiff, either to give a bond with sufficient sureties, 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 defen- dant a certificate to that effect; or to hie with him a written authority from some Judge of a Superior Court authorizing the plaintiff to sue as a pauper. §12.— Power to sue as ;\ pauper; Slow ©btai Any Judge of the Superior Court may authorize any person to sue as a pauper when he shall exhibit to the Judge a certificate from some licensed attorney: 1. That he has examined the ease of the plaintiff, and believes that he ha goo,d and meritorious cause of action in fact and law; and, 2. That he will prosecute the action of the plaintiff as his attorney and counsel without any fee or reward whatever; and when it shall also appear to the Judge, by the affidavit of the plaintiff or otherwise, that the plaintiff is unable to give the sureties or make the deposit required. Whenever any pers< n i hall be allowed to sue -as a pauper, no officer shall require of him any fee, and he shall recover no costs. CIVIL PROCEDURE. 29 ^73. — Form of the sammous. The summons shall run in the name of the State, be signed by the Clerk of a Superior Court, under the seal of his Court, and be directed to the sheriff of the county in which the defendant resides or may be found, or in case .such sheriff be a party to, or interested in, the action, it may be directed to the coroner of that county, or to the sheriff of any adjoining- county. It shall com- mand the officer to summon the defendant to appear at the office of the Clerk of the Superior Court for some certain county, within a certain number of days after the service, exclusive of the day of service, to answer the complaint of the plaintiff. It shall be dated on the day of its issue. j;} i. — What summons to eoataiih There shall also be inserted in the summons, a notice in substance as follows: 1. In an action arising on contract for the recovery of money only, that the plaintiff will take judgment for a sum specified therein, if the defendant shall fail to answer the complaint within the time specified. 2. In other actions, 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 com- plaint. The Clerk before whom the defendant shall be sum- moned to appear, shall be the Clerk of the Superior Court of the county in which it is provided in Title VI, that the action shall be tried. 3. The number of days within which the defendant is sum- moned to appear, shall, in no case, be less than twenty, exclusive of the day of service, to which one day shall lie- added for every twenty-five miles of distance between the Court-house of the county in which the service is made, and the Court-house of the county at which the defendant is required to appear, by the usual route of travel. . *■ ". — Return of summons. The officer to whom the summons is addressed shall note- on it the day of its delivery to him, and execute it within 30 THE CODE OF ten days after its receipt by him. Before proceeding to execute it, lie shall be entitled to require of the plaintiff his fee for the service, and five cents per mile of the distance from the Court-house of his county, to the usual residence of the defendant or other place in which he may be found in the county; if required by the plaintiff he shall execute the writ immediately, and in that case he shall be entitled in like manner to require ten cents per mile, measured as aforesaid. When executed he shall immediately return the writ, with the date and maimer of its execution, by mail or otherwise, to the Clerk of the proper Court, §T6.— Service of the complaint. A copy of the complaint may or may not be served with the summons. In either case the plaintiff must file a copy thereof, with the Clerk of the Court before which the defen- dant is summoned to appear within ten days from the issu- ing- of the summons; and in case no copy shall have been issued with the summons, he shall also within the said time file with the Clerk another copy thereof, addressed to, and for the use of, the defendant, or if there be several defen- dants, a copy for each of them, provided however, if several defendants appear by one attorney, one copy only need be filed for all who so appear. £77, — Plaintiff' failing to file Complaint within ten days. If the plaintiff shall fail to file his complaint within ten days after the issuing of his summons, then the defendant may at any time before the filing of such complaint, and within the time limited for his appearance, enter an appear- ance specifying where within the State, a copy of the com- plaint may be served on him, and the plaintiff at his own expense, shall cause such copy, to be served within sixty days; and the defendant shall not be required to answer until the twentieth day after such service. £7$.— Plaintiff failing to file Complaint within the time for Defendants, appear- enee, may be non-suited. If the plaintiff shall fail to file his complaint within the time limited by the summons, for the appearance and answer CIVIL PEOCEEURE. 31 of the defendant, or by the next preceding section, the de- fendant shall be entitled to demand judgment of non-suit against the plaintiff. =?T9.— Time of filing pleadings may be enlarged. The time for filing the complaint or of any pleading what- ever, may be enlarged by the Court for good cause shown by affidavit, but it shall not be enlarged by more than twenty 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; and in all cases in which the time shall be enlarged unless upon the ground of such accident or frand, the party making the application shall pay into Court for the use of the opposing party five dollars, which shall not in any event be recovered back. Three days notice must be given of the motion to enlarge. £80.— Plaintiff shall name an attorney, in the county, town &<•. At the time of filing his complaint the plaintiff, and at the time of filing his answer, the defendant, shall name some place and person in the county town in which the Court to which the action is brought is held, Avhere and upon whom, service of pleadings and notices in the action may be served ; and if either shall fail to do so, the filing of all such plead- ings and notices in the office of the clerk of the Court shall be deemed sufficient service on the day of such filing, unless the party shall in writing on the copy of his complaint, or answer, or by other written notice, served on the adverse party, require personal service thereof, at a place named by him within the county, and shall deposit with the clerk a sum sufficient to pay the expense of such personal service ; in which case, the personal service shall be made at his expense. /' §81. — IfotiM of no pergonal claim. In case of a defendant against whom no personal claim is made, -the plaintiff may deliver to such defendant with 32 THE CODE OF the summons, a notice subscribed by the plaintiff 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, in which case no copy of the com- plaint need be served on such defendant, unless within the time for answering, he shall in writing demand the same. If a defendant on whom such notice is served, unreasonably defend the action, he shall pay costs to the plaintiff. §82. — Manner of service of summons. The summons shall be served by delivering a copy thereof as follows: 1. If a suit be against a corporation, to the President, or other head of the corporation, secretary, cashier, treasurer, a director or managing agent thereof; but such service can be made in respect to a foreign corporation, only when it has property within the State, or the cause of action arose therein, or where the plaintiff resides in the State, or where such service can be made within this State personally upon the President, Treasurer or Secretary thereof; 2. If against a minor under the age of fourteen years to such minor personally, and also his father, mother or guar- dian, or if there be none within the State, then to any per- son 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 conse- quence of habitual drunkenness and for whom a committee or guardian has been' appointed, to such committee and to the defendant personally; 4. In all other cases, to the defendant personally. §83.— Service by publication *, form of Summons. Where the person on whom the service of the summons is to be made, cannot, after due diligence, be found within the State, and that fact appears by affidavit to the satisfaction of the Court, or a Judge thereof, and it in like manner CIVIL PROCEDURE. 33 appears that a cause ot action exists against the defendant in respect to whom the service is to be made, or that he is a pro- per party to an action relating to real property in this State, such Court or Judge may grant an order that the service be made by the publication of a summons in either of the fol- lowing 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 con- cealed therein with a like intent; 3. Where he is not a resident of this State, but has pro- perty therein, and the Court has jurisdiction of the subject of the action. 4. Where the subject of the action is real or personal pro- perty in this State, and the defendant has or claims a lien or interest, actual or contingent, therein, or the relief de- manded consists wholly or partly, in excluding the defen- dant from any lien or interest therein. 5. Where the action is for divorce, in the cases prescribed by law. §84. — Manner and effect of publication. The order must direct the publication in any one or two newspapers to be designated as most likely to give notice to the person to be served, and for such length of time as may be deemed reasonable, not less than once a week for six weeks. In case of publication the Court or Judge must also direct a copy of the summons and complaint to be forth- with deposited in the post office, directed to the person to be served, at his place of residence, unless it appears that such residence is neither known to the party making the application, nor can with reasonable diligence be ascer- tained by him. When publication is ordered, personal ser- 34 THE CODE OP vice of a copy of the summons and complaint, out of the State, is equivalent to publication and deposit in the post office. §85. — Defendant allowed to defend before and after judgment. The defendant against whom publication is ordered, or his representatives, on application and sufficient cause shown 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 defence be successful and the judgment, or any part thereof, have been collected, or otherwise enforced, such restitution may thereupon be compelled as the court may direct; but the title to property sold under such judgment to a purchaser in good faith shall not be thereby affected. And in all cases where publication is made, the complaint must be first filed, and the summons as published must state the time and place of such filing. §86.— Actions for foreelosnre of mortgages. In actions for the foreclosure of mortgages on real estate, already instituted, or hereafter to be instituted, if any party having any interest in or lien upon such mortgaged premises, is unknown to the plaintiff, and the residence of such party eannot, with reasonable diligence, be ascertained by him, and such fact shall be made to appear by affidavit, to the court, such court may grant an order that the summons be served on such unknown party by publishing the same for six weeks once in each week successively, in one newspaper printed in Raleigh, and in a newspaper printed in the county where the premises lie, if there be any, which publication shall be equivalent to a personal service on such unknown party. §87. — Joint and several debtors; Partmrs. Where the action is against two or more d3fendants, and CIVIL PROCEDURE. 35 the summons is served on one or more of them, but not on all them, the plaintiff may proceed as follows : 1. If the action be against defendants jointly indebted upon^contract. he may proceed against the defendants served unless the court otherwise direct; and if he recover judg- ment, it may be entered against all the defendants thus jointly indebted, so far only as that it may be enforced against the joint property of all, and the separate 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 defen- dant 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 sum- mons, and such omission shall not have been pleaded in such action, the plaintiff in case the judgment therein shall remain unsatisfied, may by action recover of such partner separately, upon proving his joint liability, notwithstanding he may not have been named in the original action ; but the plaintiff shall have satisfaction of only one judgment ren- dered for the same cause of action. §88. — 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. $89.— Proof of service. Proof of the service of the summons and of the complaint or notice, if any accompanying the same, must be : 1. By the certificate of the sheriff or other proper officer. 2. In case of publication, the affidavit of the printer, or 36 THE CODE OF his foreman, or principal clerk, showing the same, and an 1 affidavit of a deposit of a copy of the summons in the post office as required by law, if the same shall have been deposited; or 3. The written admission of the defendant. In case of service otherwise than by publication, the certificate' or admission must state the time and place of service. 109.— Either party may appeal. Any party may appeal from any decision of the Clerk to the Judge of the Court, without bond. $110. — Duty of the Clerk on appeal prayed. On such appeal being prayed, the Clerk, within three days thereafter, shall prepare a statement of the facts of the case, of his decision, and of the appeal, and shall sign the same; he shall, within the time aforesaid, exhibit such state- ment to the parties or their attorneys on request; if such- statement is satisfactory, the parties or their attorneys shall sign the same; if either party object to the statement as partial or erroneous, he may put his objections in writing, CIVIL PROCEDURE. 4& and the Clerk shall attach such writing to his statement, and within two days thereafter he shall send such statement, together with the objections, and copies of all necessary- papers, by mail or otherwise if necessary, to the Judge for his decision. §111.— Issues of Law seat to Jndge. When any issue of law shall be joined on the pleadings before the Clerk, he shall within ten days thereafter, send by mail, or otherwise, if necesary, to the Judge of the Court, a copy of the record, for hearing and decision by him. §112.— Party to be heard before Judge* The attorney of either party may endorse on the statement of any appeal, or on the copy of the record of any issue sent to the Judge, a request to be heard before him on such matter. §113.— Duty of Judge ou appeal. It shall be the duty of the Judge on receiving a state- ment of appeal from the clerk, or the copy of the record of an issue of law, to decide the questions presented as early as may be. But if he shall have been informed in writing, by the attorney of either party, that he desires to be heard on the questions, the Judge shall fix a time and place for such hearing, and give the attorneys of both parties reason- able notice thereof. He shall transmit his decision in writ- ing, endorsed on or attached to the record, to the clerk of the Court, who shall immediately acknowledge the receipt thereof, and within three days after such receipt, notify the attorneys of the parties of the decision, and on request and the payment of his legal fees, give them a copy thereof; and the parties receiving such notice, may proceed there- after according to law. §114. — Judge to keep a docket. The judge shall keep a docket, in which shall be entered the title of every case brought in any manner before him out 44 • THE CODE OF of term, every motion made therein before him, and a copy of every order and judgment rendered by him ; and in case the original of any order or judgment of such Judge, shall be lost or destroyed, a copy from such docket, certified by the Judge, shall be as evidence of such order or judgment in place of the original, and with the same effect for all purposes. $115.— Judgment on matter of fact final; on matter of law, maybe ap- pealed from. The said judgment on issues of fact, shall be final ; any party within ten days after notice of such judgment, may pray an appeal to the Supreme Court of the State from such judgment, upon any matter of law or legal inference therein, under the regulations provided for appeals in other cases. But execution shall not be suspended until the undertakings required by the provisions of Title XIII of this Code, entitled " Of Appeals in Civil Actions" shall have been given as required. CHAPTER VI. GENERAL RULES ON PLEADING. $116. — Pleadings to be subscribed and verified. Every pleading in a court of record, must be subscribed by the party or his attorney; and when any pleading is veri- fied, every subsequent pleading, except a demurrer, must be verified also. gll7. — Pleadings, how verified. The verification must be to the effect 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 the party, or if there be several parties united in interest, and pleading together, by one at least of such parties CIVIL PROCEDURE. 45 acquainted with the facts, if such party be within the coun- ty where the attorney resides, and capable of making the affidavit. The affidavit may also be made by the agent or attorney, if the action or defence be founded upon a written instrument for the payment of money only, and such instru- ment be in the possession of the agent or attorney, or if all the material allegations of the pleading be within the per- sonal knowledge of the agent or attorney. When the plead- ing 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 reasons why it is not made by the party. When a corporation is a party, the verifica- tion may be made by any officer thereof; and when the State, or any officer thereof in its behalf, is a party, the veri- fication may be made by any person acquainted with the facts. 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. £118.— Items of account— particulars, to be furnished when. It shall not be necessary for a party to set forth in a plead- ing 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 plead- ing 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 effect 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 r a bill of particulars of the claim of either party to be furnished. <)I19. — Pleadings how Construed. In the construction of a pleading for the purpose of deter- mining its effect, ^allegations shall be liberally construed, with a view of substantial justice between the parties. 46 THE CODE OF $120.— Irrelevant or redundant— Indefinite or uncertain. If irrelevant or redundant matter be inserted in a plead- ing, it may be stricken out, on motion of any person aggriev- ed thereby. And \vhen the allegations of a pleading are so indefinite or uncertain that the precise nature of the charge or defence is not apparent, the court may require the plead- ing to be made definite and certain by amendment. §121.— Judgments how to be pleaded. In pleading a judgment or other determination of a court or 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 plead- ing shall be bound to establish, on the trial, the facts con- ferring jurisdiction. $122.— Conditions precedent how to be pleaded — Instrument for payment of money only. In pleading 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 conditions on his part; and if such allegation be controverted, the party pleading shall be bound to establish, on the trial, the facts showing such per- formance. In an action or defence founded upon an instru- ment for the payment of money only, it shall be sufficient for the party 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. §123.— Private statutes, how to be pleaded. In pleading a private statute or a right derived therefrom, it shall be sufficient to refer to such statute, by its title and the day of its i-atification, and the court shall thereupon take judicial notice thereof. CIVIL PROCEDURE. 47 §124. — Libel and Slander, how stated in complaint. In an action for libel or slander, it shall not be necessary to state in the complaint any extrinsic facts, for the purpose -of showing the application to the plaintiff, of the defama- tory matter out of which the cause of action arose: but it shall be sufficient to state generally that the same was pub- lished or spoken concerning the plaintiff; and if such alle- gation be controverted, the plaintiff shall be bound to estab- lish, on trial, that it was so published or spoken. *$1 25. —Answer in sueh eases. In the actions mentioned in the last section, the defendant may in his answer, allege both the truth of the matter charged as defamatory, and any mitigating circumstances to reduce the amount of damages ; and whether he prove the justification or not, he may give in evidence the mitigating circumstances. §126.— What causes of action may be joined in the same complaint. The plaintiff may unite in the same complaint several causes of action, whether they be such as have been hereto- fore denominated legal, or equitable, or both, where they all arise out of, 1. The same transaction ; or transactions connected with the same subject of action ; 2. Contract express or implied; or 3. Injuries with or without force, to person and property or either; or 4. Injuries to character; or 5. Claims to recover real property, with or without dam- ages for the withholding thereof; and the rents and profits of the same ; or G. Claims to recover personal property, with or without damages for the withholding thereof; or 7. Claims against a trustee, by virtue of a contract, or by operation of law. 48 THE CODE OF But the causes of action so united must all belong to* one of these classes, and except in actions for the foreclosure of mortgages, must affect all the parties to the action, and not require different places of trial, and must be separately stated. In actions to foreclose mortgages, the court shall have power to adjudge and direct the payment by the mort- gagor 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 convenant or obligation of any person other than the mortgagor, the plaintiff may make such per- son a party to the action, and the court may adjudge pay- ment 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. \)127. — Allegation not denied ; when to be deemed trne. Every material allegation of the complaint not controvert- ed by the answer, as prescribed in section ninety-seven, and every material allegation of new matter in the answer, con- stituting a counter claim, not controverted by the reply, as prescribed in section one hundred and one, shall, for the pur- poses of the action, be taken as true. But the allegation "of new matter in the answer, not relating to a counter-claim, 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. CHAPTER YII. MISTAKES IN PLEADINGS AND AMENDMENTS. §5128. — Materia! variance. No variance between the allegation in a pleading and the proof shall be deemed material, unless it have actually CIVIL PROCEDURE. 49 • misled the adverse party, to his prejudice, in maintaining his action upon the merits. Whenever it shall be alleged that a party has been so misled, that fact shall be proved to the satisfaction of the court, and in what respect he has been misled; and thereupon the Judge may order the pleading to be amended upon such terms as shall be just. , 1 2130.— A failure of proof, when. Where, however, the allegation of the cause o± action or defence 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 within the last sections, but a failure of proof. §131. — Amendments of eourse after allowance of demurrer. Any pleading may be once amended by the party of course, without costs and without prejudice to the proceed- ings already had, at any time before the period for answer- ing it expires : or it can be so amended at any time within twenty days after the service of the answer or demurrer to such pleading, 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. In such case a copy of the amended pleading must be served on the adverse party. After the decision of a demurrer, the Judge may, in his discretion, if it appear that the demurrer was interposed in good faith, allow the party to plead over upon such terms as may be just. It the demurrer be allowed for 4 50 THE CODE OF • the reason that several causes of action have been improperly- united, the Judge may, in his discretion, and upon such terms as may be just, order the action to be divided into as many actions as may be necessary to the proper determination of the causes of action therein mentioned. §132. — Amendments by order. The court may, before, and the Judge may, after judg- ment, in furtherance of justice, and on such terms as may be proper, amend any pleading process or proceeding, by- adding or striking out the name of any party ; or by cor- recting a mistake in the name of a party, or a mistake in any other respect; or by inserting other allegations material to the case; or when the amendment does not change sub- stantially the claim or defence, by conforming the pleading or proceeding to the facts proved. <)133. — Relief ill case of a mistake. The Judge may likewise in his discretion, and upon such terms as may be just, allow an answer or reply to be made, or other act to be done, after the time limited by this act, or by an order enlarge such time ; and may also in his discre- tion, and upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judg- ment order or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect, and may supply an omission in any proceeding ; and whenever any proceeding token by a party tails to conform in any respect to the provisions of this Code, the Judge, may in like manner and upon like terms, permit an amendment oi such proceeding, so as to make it conformable thereto. ^134. — When plain till' ignorant of name of defend ant. When the plaintiff shall be ignorant of the name of a defendant, such defendant may be designated in any plead- ing cr proceeding by name; and when his true name shall be discovered, the pleading or proceeding may be amended accordingly. CIVIL PROCEDURE. 51 136. — Supplemental pleadings. The plaintiff and defendant respectively may be allowed on motion to make a supplemental complaint, answer or reply, alleging facts material to the case, occurring after the former complaint, answer or reply, or of which the party was ignorant when his former pleading was made, and either party may, by leave of the Court in any pending or future action, set up by a supplemental pleading, the judgment or decree of any Court of competent jurisdiction, rendered since the commencement of such action, determining the matter in controversy in said action or any part thereof, and if said judgment be set up by the plaintiff, the same shall be with- out prejudice to any provisional remedy theretofore issued or other proceedings had, in said action, on his behalf. CHAPTER VIII. OP THE QUALIFICATION AND GENERAL DUTIES OF CLERKS OF THE. SUPERIOR COURTS. U0.— Failnie to gre bond, etc. In case any clerk shall fail to give bond and qualify as above directed, the presiding officer of the County Commis- sioners of his county, shall immediately inform the Judge of CIVIL PROCEDURE. 53 the Judicial District thereof, who shall thereupon declare the office vacant and fill the same, and the appointee shall give bond and qualify as above directed. §141. — Office, where to be kept — When to be opeD. He shall have an office, in the Court house or other place provided by the County Commissioners, in the county town of his county. He shall give due attendance, in person or by deputy at his office daily (Sunday's and holidays, excepted) from nine o'clock A. M., to three o'clock P. M., and longer when necessary for the despatch of business. ()Ui. — To receive official papers, &c. Immediately after he shall have given bond and qualified as aforesaid, he shall receive from the late Clerks of the County and Superior Courts and Clerk and Master of the Court of Equity, all the records, books, papers, monies and property of their respective offices, and give receipts for the same, and if any clerk, or clerk and master, shall refuse, or fail within a reasonable time after demand to deliver such records, books, papers and property, they shall be respec- tively liable on their official bonds for the value thereof, and be held guilty of a misdemeanor. <>l 13. — To keep records, &c* He shall be furnished with the requisite stationery and furniture, for official use by the County Commissioners, except as hereinafter provided. He shall keep in bound volumes a complete and faithful record of all his official acts, and give copies thereof to all persons desiring them, on pay- ment of the legal fees. 1S8- — Injunction by order. The writ of injunction, as a provisional remedy, is abolished, and an injunction by order, is substituted there- CIVIL PROCEDURE. 67 for. The order may be made by any Judge of a Superior Court, in the cases provided in the next section, and, may be enforced as the order of the court. Upon such order it shall be issued by the clerk of the court, in which the action is required to be tried. §189— Injunctions, in what eases. [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 shal.l appear that the defendant is doing, or threatens, or is about to do, or procuring or suffering some act to be done in violation of the plaintiff's rights respecting the subject of the action, and tending to render the judgment ineffectual, a temporary injunction may be granted to restrain such act. [3] And where, during the pendency of an action, it shall appear by affidavit that the defendant threatens, or is about to remove or dispose of his property, with intent to defraud his credi- tors, a temporary injunction may be granted to restrain such removal or disposition. ■,190.— At what time it may be granted. Copy of affidavit to be served. The injunction may be granted at the time of commen- cing the action, or at any time afterwards, before judgment, upon its appearing satisfactorily to the Judge, by the affida- vit of the plaintiff, or of any other person, that sufficient grounds exist therefor. A copy of the affidavit must be served with the injunction. $191.— Injunction after answer. An injunction shall not be allowed after the defendant shall have answered, unless upon notice, or upon an order to show cause; but in such case the defendant may be restrained until the decision of the Judge granting or refus- ing the injunction. 08 THE CODE OF £i92. — Security upon injunction. Damages. Upon granting 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. The damages may be ascertained by a reference, or otherwise,' as the Jtfdge shall direct. vjl93 — Order to show cause- Restraint in meantime. If the Judge deem it proper that the defendant, or any of several defendants, should be heard before granting the injunction, an order may be made requiring cause to be shown, at a specified time and place, why the injunction should not be granted; and the defendant may, in the meantime, be restrained. v^lM—- Security upon injunction to suspend business of corporation. An injunction to suspend the general and ordinary busi- ness of a corporation shall not be granted without due notice of the application therefor, to the proper officers of the cor- poration, except where the State is a party to the proceed- ing, unless the plaintiff shall give a written undertaking executed by two sufficient sureties, to be approved by the Judge, to the effect that the plaintiff will pay all damages, not exceeding the sum to be mentioned in the undertaking, which such corporation may sustain by reason of the injunc- tion, if the Court shall finally decide that the plaintiff was not entitled thereto. The damages may be ascertained by a reference, or otherwise, as the Court shall direct. ^195.— Motion to vacate or modify injunction. If the injunction be granted by a Judge of the Court, without notice, the defendant, at any time before the trial, CIVIL PROCEDURE. 69 may apply, upon notice, to a Judge of the Court in which the action is brought, to vacate or modify the same. The application may be made upon the complaint and the affi- davits on which the injunction was granted, or upon the affidavits on the part of the defendant, with or without the answer. §198 — Affidavits on motion. If the apr)lication be made upon affidavits on the part of the defendant, but not otherwise, the plaintiff may oppose the same by affidavits or other proofs, in addition to those on which the injunction was granted. CHAPTER IV. ATTACHMENT. §197.— Property of foreign corporations!, am! of uon-resideat, or absconding, or conceded defendants, may be attached. In an action arising on contract, for the recovery of monej' only, or in an action for the wrongful conversion of per- sonal property, against a corporation created by, or under. the laws of any other State, government or country, or against a defendant who is not a resident of this State, or against a defendant who has absconded or concealed him- self, or whenever any person or corporation is about to remove any of his, or its property, from this State, or has assigned, disposed of, or secreted, or is about to assign, dispose of, or secrete, any of his, or its, property, with intent to defraud creditors, as hereinafter mentioned, the plaintiff at the time of issuing the summons, or [at] any time afterwards, may have the property of such defendant or corporation attached, in the manner hereinafter prescribed, as a security for the satisfaction of such judgment as the plaintiff may recover; and for the purposes of this seclion, an action shall 70 THE CODE OF Jifi deemed commenced, when the summons is issued; Pro- vided however, that personal service of such summons shall be made, or .publication thereof commenced within thirty days after obtaining a warrant of attachment. §198.— Publication to be made The plaintiff obtaining a warrant of attachment shall within the time above prescribed, cause publication to be made, at least once a week for four successive weeks, in some newspaper published in the county in which the warrant is returnable ; or if there be none such published, then in one published within the judicial district, in which such county is, or if there be none such published, then in any newspaper published in this State. Said publication shall state the names of the parties, the amount, and in a brief way, the nature of the demand, the time and place to which the warrant is returnable, and shall require the defendant to appear then and there and answer the com- plaint. It the place of residence of the defendant be known, the plaintiff shall send to him by mail, a copy of such pub- lication ; and the court in which the suit is pending may, at any time, order notice to be sent by mail to any place, in which the defendant may be supposed to reside or be. 224. — Issnes, how tried. An issue of law must be tried by the Judge of the court, "unless it be referred, as provided in sections two hundred and forty-four and two hundred and lorty-five. An issue of CIVIL PROCEDURE. 83 feet, in an action for the recovery of money only, or of specific real or personal property, or for a divorce from the marriage contract on the ground of adultery, must be tried by a jury, unless a jury trial be waived, as provided in sec- tion two hundred and forty, or a reference be ordered, as provided in sections two hundred and forty-four and two hundred and forty-five. §225. — Oilier issnes to be tried by the conrt or Judge. Every other issue is triable by the court, or the Judge thereof, who, however, may order the whole issue, or any specific question of fact involved therein, to be tried by a jury, or may refer it, as provided in sections two hundred and forty-four and two hundred and fortyfive. . §228.— Issnes of fact, when to be tried. Every issue of fact joined on the pleadings, and inquiry of damages required to be tried by a jury, shall be tried at the term of the court next ensuing such joinder of issue or order for inquiry; provided such issue shall have been joined or order for inquiry made, more than thirty days before such term, but if not, they shall be tried at the second term after such joinder or order. §22*. — Trial may be i><>stj>ofled by elerk, when. Any party to any action may apply to the court in which it is pending, or to the Judge thereof, after three days notice in writing to the adverse party, to have the trial deferred to a term subsequent to that in which it is regularly triable; such application must be made thirty days before the trial term, and must be on affidavit. The court or Judge may defer the trial as asked for, on such terms as shall be just, if satisfied: 1. That the 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 cannot have a fair trial at the regular trial term;. if the application is made by reason' - of 84 THE CODE 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 expectation of his non- attendance, and that the applicant expects to procure his evidence at or before some named subsequent term. The applicant shall in all cases pay the costs of the appli- cation. v>228t — Trial postponed by Judge in term, when. 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 sat- isfied: 1. That the applicant has used due diligence to be ready for trial. 2. That he cannot have a fair trial at that term, by reason of circumstances stated, and if the ground of application be, the non-attendance of a witness, the affidavit shall contain the particulars required by subdivision two of section two hundred and twenty-seven. Unless the applicant shall also set forth in his affidavit, that the facts upon which hisapplication is grounded occurred, or came tohisknowledge too late to allow him to apply as prescribed in the last 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. £229. — Criminai calendar first disposed of. Order of disposing of issues in civil actions* The criminal calender 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 order, unless, for the convenience of parties or the dispatch of business, the court shall otherwise direct: CIVIL PROCEDURE. 85 1. Issues of fact to be tried by a jury ; 2. Issues of fact to be tried by the court ; 3. Issues of law. CHAPTER III. TRIAL BY JURY. §230.— Separate trials. A separate trial between a plaintiff and any of the several defendants may be allowed by the court, whenever, in its opinion, justice will thereby be promoted. §231.— Judge to be furnished with copy pleadings, &c. The clerk shall furnish the Judge with a copy of the summons and pleadings, and with the offer of the defendant if any shall have been made. §232.— General and special verdicts defined. A general verdict is that by which the jury pronounce generally upon all or any of the issues, either in favor of the plaintiff or defendant. A special verdict is that by which the jury find the facts only, leaving the judgment to the court. §233.— When jury may render either general or special verdict, and when Judge may direct special finding. In an action for the recovery of specific personal property, if the property have not been delivered to the plaintiff, or the defendant by his answer claim a return thereof, the jury shall assess the value of the property, if their verdict be in favor of the plaintiff; or if they find in favor of the defen- dant, and that he is entitled to a return thereof; and may at the same time assess the damages, if any are claimed in the complaint or answer, which the prevailing party has sus- tained by reason of the detention or taking and withhold- ing such property. SG THE CODE OF In every action for the recovery of money only, or specific real property, the jury, in their discretion, may render a general or special verdict. In all other cases, the court may direct the jury to find a special verdict in writing, upon all or any of the issues; and in all cases may instruct them if they render a general verdict, to find upon particular cmes- tions of facts, to be stated in writing, and may direct a written finding thereon. The special verdict or finding shall be filed with the clerk, and entered upon the minutes. §231. — On special finding with general verdict, former to control. Where a special finding of facts shall be inconsistent with the general verdict, the former shall control the latter, and the court shall give judgment accordingly. ,^235. — Jnrj to assess defendant's damages in certain cases. When a verdict is found for the plaintiff in an action for the recovery of money, or for the defendant when a set-off for the recovery of money is established beyond the amount of the plaintiff's claim as established, the jury must also assess the amount of the recovery; they may also, under the direction of the court, assess the amount of the recovery when the court give judgment for the plaintiff on the answer. If a set-off, established at the trial, exceed the plaintiff's demand so established, judgment for the defen- dant must be given for the excess; or if it appear that the defendant is entitled to any other affirmative relief, judg- ment must be given accordingly. £236. — Eutry of the verdict. Motion for new trial on Judge's minutes. (1.) Upon receiving a verdict, the clerk shall make an entry in his minutes, specifying the time and place of the trial, the names of the jurors and witnesses, the verdict, and either the judgment rendered thereon, or an order that the cause be reserved for argument or further consideration. If a different direction be not given by the court, the clerk must enter judgment in conformity with the verdict. (2.) CIVIL PROCEDURE. 87 If an exception be taken, it may be reduced to writing at the time, or entered in the Judge's minutes, and afterwards .settled as provided by the rules of the court, and then stated in writing in a case, or separately, with so much of the evi- dence as may be material to the questions to be raised, but a bill of exceptions need not be made. (3.) If the excep- tions be in the first instance stated in a .case, and it be necessary to separate them, the separation may be made under the direction of the Judge. (4.) The Judge who tries the cause may, in his discretion, entertain a motion, to be made on his minutes, to set aside a verdict and grant a new trial upon exceptions, or for insufficient evidence, or for excessive damages; but such motion can only be heard at the same term at which the trial is had. When such motion is heard and decided upon the minutes of the Judge, and an appeal is taken from the decision, a case or exceptions must be settled in the usual form, upon which the argument of the appeal must be had. ^23T Judge to explain law, but to express no opinions on facts. No Judge, in giving a charge to the petty jury, 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. §238.— Judge to put his instructions in writing. Every Judge, at the request of any party to an action on trial, made at or before 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. §239 — Counsel to put their prayers for instruction in writing. Counsel praying of the Judge instructions to the jury, shall put their request in writing entitled of the cause, and sign them; otherwise the Judge may disregard them; they shall be filed with the clerk as a part of the record. 88 THE CODE OF CHAPTER IV. TRIAL BY THE COURT. §240.— Trial by jury, how waived. Trial by jury may be waived by the several parties to an issue of fact, in actions on contract, and with the assent of the court, in other actions, in the manner following : 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. $241— Oa trial by the court, judgment, how to be given. Upon the trial of a question of fact by the court, its decis- ion shall be given in writing, and shall contain a statement of the facts found, and the conclusions of law, separately ;. and upon a trial of an issue at 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. §242. — Exceptions, how and when taken. [1.] For the purposes of an appeal, either party may except to a decision on a matter of law arising upon such trial within ten days after the judgment, in the same manner and with the same effect as upon a trial by jury. Provided, however, that where the decision does not authorize a final judgment, but directs further proceedings before a referee or otherwise, either party may except thereto, and make a case or exception as above provided in case of an appeal. [2.] And either party desiring a review, upon the evi- dence appearing on the trial, of the questions of law may r at any time within ten days after the judgment, or within such time as may be prescribed by the rules of the court,. CIVIL PROCEDURE. 89 make a case or exceptions in like manner as upon a trial by jury, except that the Judge, in settling the case, must briefly specify the facts found by him, and his conclusions of law. 245. — When reference may be compulsorily ordered. Where the parties do not consent, the court may, upon the application of either, of its own motion, except where the investigation will require the decision of difficult ques- tions of law, direct a reference in the following cases: 1. Where the trial of an issue of fact shall require the examination 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, DO THF, CODE OF 2. Where the taking of an account shall be necessary for the information of the court, before judgment, or for carry- ing a judgment order into effect ; or, 3. When case involves a complicated question of boundary, or one which requires a personal view of the premises. • 4. Where a question of fact, other than upon the pleadings, shall arise, upon motion or otherwise, in any stage of the action. §246.— Mode of trial— Effect of report— Review. 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 adjournments and to allow amendments to any pleadings and to the summons, 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 viola- tions thereof upon such trial, and to compel the attendance of witnesses before them by attachment, and to punish them as for a contempt for non-attendance or refusal to be sworn or testify, as is possessed by the court. They must state the facts found and the conclusions of law separately; and their decision must be given, and may be excepted to and reviewed in like manner, and with like effect in all respects a,s in cases of appeal under section two hundred and forty- two ; and they may in like manner settle a case or excep- tions. The report of the referees upon the whole issue shall stand as the decision of the court, and judgment may be entered thereon upon application to the Jndge, and his -order. When the reference is to report the facts, the report -shall have the effect of a special verdict. §24T« — Referees, how chosen — Who may be referee— Report. In all cases of reference the parties as to whom issues are formed in the action (except 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 him or them, and to no other person, or persons. And CIVIL PROCEDURE. 91 if such parties do not agree, the court shall appoiut 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, except in actions for divorce. 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. t The referee or referees shall make and deliver a report within sixty days from the time the action shall be finally submitted; and in default thereof, and before the report is delivered, either party may serve notice upon the opposite party that he elects to end the reference; and thereupon the action shall proceed as though no reference had been ordered, and the referees shall not in such case be entitled to any fees. The report of the referee shall be made to the clerk of the court in which the action is pending: either party after ten clays notice to the adverse party, 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. CHAPTER VI. MANNER OF ENTERING JUDGMENT. £2-18.— Judgment may be for or against any of the parties ; may grant defen- dant affirmative relief— Complaint may be dismissed for neglect to prosecute action— Jndginent against married woman. (1.) Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants; and it may determine the ultimate 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. 92 THE CODE OF (3.) In an action against several defendants, the court may, in its discretion, render judgment against one or m,ore- of them, leaving the action to proceed against the others, whenever a several judgment may be proper. (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. §249.— The relief to be awarded to the plaintiff. The relief granted lo the plaintiff, if there be no answer, cannot 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. §250. — Rates of damages where damages are recoverable. Whenever damages are recoverable, the plaintiff may claim and recover, if he show himself entitled thereto, any rate of damages which he might have heretofore recovered for the same cause of action. §251. — Jadgment 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 possession, or for the value thereof, in case a delivery cannot be had, and the damages for the detention. If the property have been delivered to the plaintiff, and the defendant claim a return thereof, judgment for the defen- dant may be for a return of the property, or the value thereof in case a return cannot be had, and damages for taking and withholding the same. CIVIL PROCEDURE. 93 425?, — Clerk to cuter judgment* on judgment book, al*o jndgmeuts rendered in other courts, and index them. The Clerk of the Superior Court shall enter every judg- ment of the court, on his judgment book; it shall specify clearly the relief granted, or other determination of the action ; he shall also enter on said book all judgments ren- dered, in any other court, and. authorized, by law to be so entered, and shall keep an alphabetical index of the whole, with the dates and numbers thereof. §255.— Judgment roll. Unless the party or his attorney shall furnish 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 complaint be not answerecUby any defen- dant, the summons and oomplaint, or copies thereof, proof of service, and that no answer has been received, the report if any, and a copy of the judgment. 2. frrall 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. 5*54.— Existing suits. Judgments, when and how to be docketed. Seemed en appeal. Upon filing a judgrnent-roTiupon a judgment directing in whole or in part the payment of money, it may be docketed with the clerk ol the county where the judgment -roll was iiled, and in 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 pro- perty is situated, or which he shall acquire at any time there- after, for ten years from the time of docketing the same in 94 ' THE CODE OF the county where the judgment-roll was filed. But the time during which the party recovering or owning such judgment shall be, or shall have been, restrained from pro- ceeding thereon by an order of injunction, or other order, or by the operation of any appeal, shall not constitute any part of the ten years aforesaid, as against the defendant in such judgment, or the party obtaining such orders or making such appeal, or any other person who is not a purchaser, creditor or mortgagee in good faith. But whenever an appeal from any judgment shall be pending, and the under- taking requisite to stay execution on such judgment shall have been given, and the appeal perfected as provided in the Code, the court in which such judgment was recovered may, on special motion, after notice to the person owning the judgment, on such terms as they shall see fit, direct an entry to be made by the clerk on the docket of such judge- ment, that the same is " secured on appeal, " and thereupon it shall cease, during the pendency of said appeal, to be a lien on the real property of the judgment-debtor, as against purchasers and mortgagees in good faith, All executions issuing upon judgments docketed in a county other than that in which the original judgment was rendered, shall be returned to the court from which they issued; the return noted on the Execution Docket; and the executions transmitted to the clerk of the court in which the original judgment was taken. The provisions of this section shall apply to existing judgments as well as to all hereafter rendered. CIVIL PROCEDURE. 95> TITLE XI. OF TOE EXECUTION OF THE JUDGMENT IN CIVIL ACTIONS. Chapter I. The execution. " II. Prccie(!in?s supplements rj to execution. CHAPTER I. THE EXECUTION. ^255. — Execution within three years of course. "Writs of execution for the enforcement of judgments as now used are modified in conformity to this title, and the party in -whose favor judgment has been heretofore or shall hereafter be given, and in case of his death his personal representatives duly appointed, may at any time within three years after the entry of judgment, proceed to enforce the same, as prescribed by this title. The provisions of this title shall apply to existing judg- ments except in the cases provided for, by the ordinance of th £ Convention of this State entitled "An Ordinance ^y* respecting the Jurisdiction of the Courts of this Sta?t£, ratified 14th of March 18G8, which shall be governed by the exsting law. <256. — After three \ears, to be issued oit!} by leave of court. Lea>e how obtained. After the lapse of three years from the entry of judgment, an execution can be issued only by leave of the court, upon motion, with personal notice to the adverse party, unless he be absent or non-resident, or cannot be found to make such service, in which case such service may be made by publi- cation, or in such other manner as the court shall direct. Such leave shall not be given unless it be established by the oath of the party, or other satisfactory proof, that the judg- ment, or some part thereof, remains unsatisfied and due. % THE CODE OF But the leave shall not be necessary when execution has been issued on the judgment within the three years next preceeding the suing for execution, and returned unsatisfied in whole or in part. §257.— Jndgnicnts, how enforced. Where a judgment requires the payment of money, or the delivery of real or personal property, the same may be enforced in those respects by execution, as provided in this Title. Where it requires the performance of any other act, a certified copy of the judgment may be served upon the party against whom it is given, or the person or officer who is required thereby or by law to obey the same, and his obedience thereto enforced. If he refuse, he may be pun- ished by, the court as for contempt. cess of the court, and shall be subscribed by the clerk, and where to run out of his county, sealed with the seal of his court. §259. — To what comities execution may be issned. Execution against a mar- ried woman. When the execution is against the property of the judg- ment debtor, it may be issued to the sheriff of any county where the judgment is docketed. When it requires the delivery of real or personal property, it must be issued to the sheriff of the county where the property, or some part thereof, is situated. Executions may be issued at the same time to different counties. Real property adjudged to be sold must be sold in the county where it lies, by the sheriff of the county, or by a , referee appointed by the court for that purpose; and there- CIVIL PROCEDURE. 97 upon the sheriff' or referee must execute a conveyance to the purchaser, which conveyance shall be effectual to pass the rights and interests of the parties adjudged to be sold. An execution may issue against a married woman, and it shall direct the levy and collection of the amount of the judgment against her from her separate property, and not otherwise. ^260. — Execution against the person, in what eases. If the action be one in which the defendant might have been arrested, as provided in section one hundred and forty- nine and section one hundred and forty-one, an execution against the person of the judgment debtor may be issued to any county within the State, after the return of an execution against his property unsatisfied in whole or in part. But no execution shall issue against the person of a judgment debtor, unless an order of arrest has been served, as in this act pro- vided, or unless the complaint contains a statement of facts showing one or more of the causes of arrest required by sec- tion one hundred and forty nine. §261. — Form of the execution. The excution must be directed to the sheriff, or coroner when the sheriff is a party or interested, subscribed by the clerk of the court, and must intelligibly^refer to the judg- ment, stating the county jvitere t-fee judgment-roll or trans- cript is filed, the names of the parties, the amount ' of the judgment, if it be for money, and the amountractually due thereon, and the time of docketing^in the 'county to- which the execution is issued, and shall require the'orS^er substan- tially as fojlows: 1. If it be against the property of tl*e judgment^ijebtor, it shall require the officer to satisfy tiie w j*idgment"out,of the personal property, of sucli debtor; and if sufficient personal pro pert y cannot^iutQundy-out of the rea^rfopefty belonging tonim on the day when the judgment wasVTocketed in the county, or at anv time^thereafter. <4*f v "ii [)S THE CODE OF 2. If it be against real or personal property in the hands of personal representatives, heirs, devisees, legatees, tenants of real property or trustees, it shall require the officer to satisfy the judgment out of such property. 3. If it be against the person of the judgment debtor, it shall require the officer to arrest such debtor, and commit him to the jail of the county until he shall pay the judg- ment or be discharged according to law. 4. If it be for the delivery of the possession of real or personal property, it shall require the officer to deliver the possession of the same, particularly describing it, to the party entitled thereto, and may at the same time require the officer to satisfy any costs, damages, or rents or profits recovered by the same judgment, out of the personal prop- erty of the party against whom it was rendered, and the value of the property for which the judgment was recovered, to be specified therein; if a delivery thereof cannot be had, and if sufficient personal property cannot be found, then out of the real property belonging to him on the day when the judgment was docketed, or at any time thereafter, and shall in that respect be deemed an execution against property. £262.— To be returnable in sixty days. The execution shall be returnable within sixty days, after its receipt by the officer, to the clerk with whom the record of judgment is filed. <:Jt>3.— Existing laws relating t;> execution continced, nnti! otherwise provided. Until otherwise provided by the Legislature, the existing provisions of law, not in conflict with this chapter, relating to executions and their incidents, the property liable to sale on execution, the sale and redemption thereof, the powers and rights of officers, their duties thereon, and the proceed- ings to enforce those duties, and the liability of their sure- ties sha!l apply to the executions prescribed by this chapter. CIVIL PROCEDURE. 99 But the sheriff may sell on due advertisement on the first three days in any month, and if one of them be Sunday it shall not be counted. CHAPTER II. PROCEEDINGS SUPPLEMENTARY TO THE EXECUTION. £26i.— Existing suits— Order for discovery of property, examination of judg- ment debtor, &c. (1.) "When an execution against property of the judgment debtor, or any one of several debtors in the same judgment issued to the sheriff of the county where he resides or has a place of business, or if he do not reside in the State, to the sheriff of the county where a judgment-roll or a tran- script of a Justice's judgment for twenty-five dollars, or upwards, exclusive of costs, is filed", is returned unsatisfied, in whole or in part, the judgment creditor, at any time after such return made, is entitled to an order from the court to which the execution is returned, or from the Judge thereof, requiring such debtor to appear arid answer concerning his property, before such court or Judge, at a time and place specified in the order, within the county to which the execution was issued. (2.) After the issuing of an execu- tion against property, and upon proof by affidavit, of a party or otherwise, to the satisfaction of the court, or a Judge thereof, that any judgment debtor, residing in the judicial district where such Judge or officer resides, has property which he unjustly refuses to apply towards the satisfaction of the judgment, such court or Judge may, by an order, require the judgment debtor to appear at a speci- fied time and place, to answer concerning the same ; and such proceedings may thereupon be had for the application of the property of the judgment debtor towards the satis- faction of the judgment as are provided upon the return of an execution. (3.) On an examination under this section, 100 THE CODE OF either party may examine witnesses in his behalf, and the judgment debtor may be examined in the same manner as a witness. (4.) Instead of the order requiring the attend- ance of the judgment debtor, the Judge may, upon proof by affidavit or otherwise, to his satisfaction, that there is danger of the debtor's leaving the State, or concealing him- self, and that there is reason to believe he has property which he unjustly refuses to apply to such judgment, issue a warrant requiring the sheriff of any county where such debtor may be, to arrest him and bring him before such Judge. Upon being brought before the Judge, he may be examined on oath, and, if it then appears that there is danger of the debtor leaving the State, and that he has property which he has unjustly refused to apply to such judgment, ordered to enter into an undertaking, with one or more sureties, that he will, from time to time, attend before the Judge as he shall direct, and that he will not, during the pendency of the proceedings, dispose of any property not exempt from execution. In default of enter- ing- into such undertaking, he may be committed to prison by warrant of the Judge, as for a contempt. (5.) No person shall, on examination pursuant to this chapter, be excused from answering any question on the ground that his exam- ination will tend to convict him of the commission of a fraud; but his answer shall not be used as evidence against him in any criminal proceeding or prosecution; Nor shall he be excused from answering any question, on the ground that he has, before the examination, executed any convey- ance, assignment or transfer of his property for any pur- pose, but his answer shall not be used as evidence against him in any criminal proceeding or prosecution. t/265.— Existing suits— Any debtor may pay execution against his creditor. After the issuing of execution against property, any person indebted to the judgment debtor may pay to the sheriff the amount of his debt, or so much thereof as shall be necessary to satisfy the execution; and the sheriff's receipt, shall be a sufficient discharge, for the amount so paid. CIVIL PROCEDURE. 101 §266.— Existing suits. Examination of debtors of judgment debtor, or of those having property belonging to him. Joint debtor. After the issuing or return of an execution against pro- perty of the judgment debtor, or of any one of several debtors in the same judgment, and upon affidavit that any person or corporation has property of such judgment debtor, or is indebted to him in an amount exceeding ten dollars, the Judge may, by an order, require such person or corporation, or any officer or member thereof, to appear at a specified time and place, and answer concerning the same. The Judge may also, in his discretion, require notice of such proceeding to be given to any party to the action, in such manner as may seem to him proper. The proceedings mentioned in this section and in section two hundred and sixty-four may be taken upon the return of an execution unsatisfied, issued upon a judgment recov- ered in an action against joint debtors, in which some of the defendants have not been served with the summons by which said action was commenced, so far as relates to the joint property of such debtors; and all actions by creditors to obtain satisfaction of judgments out of the property of joint debtors are maintainable in the like manner and to the like effect. These provisions shall apply to all proceedings and actions now pending, and not actually terminated by any final judgment or decree, and not embraced in the Ordinance of the Convention of this State, entitled " An Ordinance respecting the Jurisdiction of the Courts of this State, " ratified fourteenth day of March 1868. 5267. — Existing suits. Witnesses required to testify. Witnesses may be required to appear and testify on any proceedings under this chapter, in the same manner as upon the trial of an issue. §268.— Existing suit. Compelling party or witnesses to attend. The party or witness may be required to attend before the Judge, or before a referee appointed by the court or Judge ; if before a referee, the examination shall be taken by the 102 THE CODE OF referee, and certified to the Judge. All examinations and! answers before a Judge or referee, under this chapter, shall be on oath, except that when a corporation answers, the answer shall be on the oath of an afficer thereof. §269. — Existing suits. What property may be ordered to be applied to the execution. J The Judge may order any property of the judgment debtor, not exempt from execution, in the hands either of himself or any Other person, or due to the judgment debtor, to be applied towards the satisfaction of the judgment:, except that the earnings of the debtor for his personal ser- vices, at any time within sixty days next preceeding the order, cannot be so applied when it is made to appear, by the debtor's affidavit or otherwise, that such earnings are neces- sary for the use of a family supported wholly or partly by his labor. r •> i. ? ,, c u ii i x:i ^ -~ *!■* office of the Clerk of the bupe- the same shall be hied in the u * uwv . * n , „ „ . i ,,' a 'itu ifftnent-roll m the rior Court of the county where the* J Uv £> action or transcript from justice's judgment, UpOP-W ic ie proceedings are taken, is filed; and the clerk shu. r the order in a book to be kept for that purpose in his office, to be called " Book of orders appointing receivers ot judg- ment debtors, " and shall note the time of the filing of said order therein. A certified copy of said order shall be deliv- ered to the receiver named therein, and he shall be vested with the property and effects of the judgment debtor from the time of the filing and recording of the order as aforesaid. The receiver of the judgment debtor shall be subject to the direction and control of the court in which the judgment was obtained upon which the preceedings are founded. But before he shall be vested with any real property of such judgment debtor, a certified copy of said order shall also^e filed and recorded on the execution docket, in the office of the clerk of the Superior Court of the county in which any real estate of such judgment debtor sought to be effected by such order is situated, and also in the office of the clerk of the Superior Court of the county in which such judgment debtor resides. $271t— Existing suits— Proa :on daim of another party to p! i>i an denial of indebtedness to judgment debtor. If it appear that a person or corporation alleged to have property of the judgment debtor, or indebted to him, claims an interest in the property adverse to him, or denies the debt, such interest or debt shall be recoverable only in an action against such, person or corporation by the receiver; but the Judge 'may, by order, forbid a transfer or other dis- position of such property or interest, till a sufficient oppor- tunity be given to the receiver to commence the action, and prosecute the same to judgment and execution; but such order may be modified or dissolved by the Judge granting the same, at any time, on such security as he shall direct. 104 THE CODE OF $272.— Existing suits— Reference by Judge. The Judge may, in his discretion, order a reference to a referee agreed upon by the parties, or appointed by him, to report the evidence or the facts, and may, in his discretion, appoint such referee in the first order, or at any time. $273.— Existing snits— Cost of proceeding. The Judge may allow to the judgment creditor, or to any party so examined, whether a party to the action or not, witnesses' fees and disbursements, and a fixed sum in addi- tion, not exceeding thirty dollars, as costs. $274.— Existing snits— Disobedience of order, how punished. If any person, party, or witness, disobey an order of the Judge or referee, duly served, such person, party, or witness, may be punished by the Judge as for a contempt. And in all cases of commitment under this chapter, the person committed may, in case of inability to perform the act required, or to endure the imprisonment, be discharged from imprisonment by the court or Judge committing him, or the court in which the judgment was rendered, on such terms as may be just. The sections of this chapter, from section two hundred and sixty-four, to section two hundred and seventy-fiu r loth inclusive, shall be applicable to all judgments which shall be recovered after the ratification of this Act, except judg- ments upon causes of action embraced in the provisions of an Ordinance passed by the Convention of this State, entitled " An Ordinance respecting the Jurisdiction ol the Courts of this State," ratified on the fourteenth of March, 186S, which shall be governed by the existing laws. CIVIL PROCEDURE. 105 TITLE XII. OF TIIE COSTS IX CIYir, ACTIONS. §275.— Fee bill of attorneys abolished. All statutes establishing or regulating the costs or fees of attorneys, solicitors, and counsel in civil actions, and all existing rules and provisions of law restricing or controlling the right of a party to agree with an attorney, solicitor, or counsel, for his compensation are repealed; and hereafter the measure of such compensation shall be left to the agree- ment, express or implied, X)f the parties. But there may be allowed to the prevailing party, upon the judgment, certain sums by way of indemnity for his expenses in the action , which allowances are in this act termed costs. i2T6.— When allowed of course to the plaintiff.— Several actions on one instru- ment. Costs shall be allowed of course to the plaintiff, upon a recovery, in the following cases: 1. In an action for the recovery of real property, or when a claim of title to real property arises on the pleadings, or is certified by the court to have come in question at the trial ; 2. In an action to recover the possession of personal property ; 3. In the actions of which a court of Justice of the Peace has no jurisdiction ; 4. In an action for the recovery of money, where the plaintiff shall recover fifty dollars; but in an action for assault, battery, false imprisonment, libel, slander, malicious prosecution, criminal conversation, or seduction, if the plain- tiff recover less than fifty dollars damages, he shall recover no more cost than damages. And in an action to recover the possesion of personal property, if the plaintiff recover less than fifty dollars damages, he shall recover no more costs than damages, unless he recovers also property, the 106 THE CODE OF value of which, with the damages, amounts to fifty dollars, or the possession of property be adjudged to him, the value of which, with the damages, amounts to fifty dollars; such value must be determined by the jury, court, or referee by whom the action is tried. When several actions shall be brought on one bond, recognizance, promissory note, bill of exchange, or other instrument in writing, or in any other case, for the same cause of action, against several parties 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, provided that the party or parties proceeded against in such other action or actions shall at the time, of the commencement of the previous action or actions have been within the State, and not secreted. §277. — When allowed to defendant. Costs shall be allowed of course to the defendant, in the actions mentioned in the last section, unless the plaintiff be entitled to costs therein. ()i7S. — When allowed to either party, in the diseretiou of the eonH. In other actions, costs may be allowed or not, in the dis- cretion of the court In all actions where there are several defendants not united in interest, and making separate defences by separate answers, and the plaintiff fails to recover judgment against all, the court may award costs to such of the defendants as have judgment in their favor, or any of them. In the following cases the costs of an appeal to any court shall be in the discretion of the court: 1. When a new trial shall be ordered; 2. When a judgment shall be affirmed in part, and reversed in part. §279. — Amount of costs allowed. When allowed costs shall be as follows: 1. To either party for whom judgment shall be given, his actual disbursements for fees to the officers entitled to receive fees; and in addition thereto, CIVIL PROCEDURE. 107 2. To the plaintiff when, in any action or proceeding, judgment shall be rendered for him by confession; or for want of an answer, or for other plea of the defendant, ten dollars. 3. To the defendant when judgment shall be rendered for him against the plaintiff by confession, or for want of a complaint or pleading of any sort, ten dollars. 4. To either party in whose favor judgment shall be ren- dered by the Judge, on an appeal from any order or decision of the Clerk of the Superior Court, five dollars. 5. To either party in whose favor judgment shall be given by a Judge, on an issue of law joined on the pleadings, if argued by counsel before the Judge, ten dollars ;" if not so argued, five dollars. 7. To either party recovering judgment uponVi trial by Jury, fifteen dollars ; and if the trial shall necessarily occupy more than one day, five dollars for every additional day. 8. On every order for the postponement of the trial to another term made before a term at which it is triable, three dollars, to be paid or not, by the party making the applica- tion, in the discretion of the court. 9. On every order for the postponement of the trial to another term, made during a term at which the case is triable, five dollars, besides the actual disbursements of the adverse party in procuring the attendance and payment of his witnesses, to be paid by the party making the appli- cation, unless the Judge in his discretion shall order otherwise. 10. In addition to the above, to either party where a new trial shall be had, for ail proceedings after the granting of such new trial, including the trial, fifteen dollars; for attend- ing upon and taking the deposition of a witness condition- ally, or attending to perpetuate his testimony, five dollars: for drawing interrogatories to annex to a commission for the taking of testimony, three dollars; for attending the exam- ination of a party before trial, three dollars; for making and serving a case, or case containing exceptions, five dollars, except that where the case shall necessarily contain more 108 THE CODE OF than fifty folios, there shall be allowed five dollars in addi- tion thereto; and for making and serving amendments thereto, five dollars. Provided that the costs for making and serving a case, or case with exceptions, shall only be allowed where the case was not excepted to by the adverse party, or, when being excepted to, it was approved by the Judge; and costs for amendments proposed thereto by the adverse party, shall only be allowed when the amendments shall be material and accepted by the adverse party, or not being accepted, shall be approved by the Judge. If the case and amendments proposed be each partly allowed and partly disallowed by the Judge, no costs shall be allowed to either party. To the plaintiff for procuring the appointment of a guardian of an infant defendant, two dollars; and no more shall be allowed for the appointment of guardians in any one action. To the plaintiff for procuring an order of injunction, ten dollars. 11. To either party on appeal to the Supreme Court, thirty dollars; and when a judgment is affirmed, the court may, in its discretion, also award damages for the delay, not exceeding ten per cent, on the amount of the judgment. The same costs shall be allowed to the plaintiff in proceed- ings under chapter two, title XIV, sections three hundred and eighteen to three hundred and twenty-four, both inclu- sive, as upon the commencement of an action. fess trust, or a person expressly authorized by statute to sue. (1.) 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 defend- ing in his own right; but such costs shall be chargeable only CIVIL PROCEDURE. Ill upon or collected of the estate, fund, or party represented, unless the court shall direct the same to he paid by the plaintiff or defendant personally, for mismanagement or bad faith in such action or defence. But this section shall not be construed to allow costs against executors or administra- tors where they are now exempted therefrom by law. (2.) And whenever any claim against a deceased person shall be referred, the prevailing party shall be entitled to recover the fees of referees and witnesses, and other necessary disburse- ments, to be taxed according to law. 290.— Costs against assignee after action brcngbi, of caase of action. In actions in which the cause of action shall by assign- ment after the commencement of the action, or in any other manner, become 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, and payment thereof may be enforced bv attachment. 112 THE CODE OF §291.— -Costs on a .settlement. Upon the settlement, before judgmeut of any action men- tioned in section two hundred and seventy-six, no greater sum shall be demanded from the defendant as costs than at the rates prescribed by that section. §292.— Costs on appeals. On an appeal 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 appellate court, he shall recover the costs of the appel- late court, and those he ought to have recovered below, had the judgment of that court been correct, and also restitution of any costs of the court appealed from, which he shall have paid under the erroneous judgment of such court. If in any court of appeal there shall be judgment for a new trial, or for a new jury, or if the judgment appealed from, be not wholly reversed, but partly affirmed and partly disaffirmed, the costs shall be in the discretion of the appel- late court. §293. — Costs in existing actions. Costs in actions brought before the ratification of this Act, shall be according to existing laws. §29i.— Costs in special proceedings. The costs in special proceedings shall be as herein allowed in civil actions, unless where otherwise specially provided. §29.3. — On appeals from Justices of the Peace. After an appeal from the judgment of a Justice of the Peace shall be filed with a Clerk of a Superior Court, the costs in all subsequent stages shall be, as herein provided for actions originally brought to the Superior Court, CIVIL PROCEDURE. 113 TITLE XIII . OF APPEALL IN CIVIL ACTIONS. CHAPTER 1. ^2!>ti.— Writs of error abolished, and appeals substituted. Writs of error in civil actions, as they have heretofore existed, are abolished ; and the only mode of reviewing a judgment, or order, in a civil action, shall be that prescribed by this title. The provisions of this title shall apply to all actions tried after the Fall Terms of the Superior Courts, held next after the ratification of this Act. The existing laws shall govern trials and appeals in said Courts at said Fall Terms. <)29T. — Orders made ont of Court, how vacated or modified. An order, made out of court, without notice to the adverse party, may be vacated or modified, 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 . §298 — Existing suits — who may appeal. Any party aggrieved may appeal in the cases prescribed in this title ; this section shall apply to existing suits. i;2i)9. — Appeal — iu what cases it may be 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 prevents a judgment from which an appeal might be taken; or discontinues the action, or grants or refuses a new trial, 8 114 THE CODE OF §300. — When taken— execution not suspended, 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 rendi- tion, but execution shall not be suspended until the giving by the appellant of the undertakings hereinafter required by sections three hundred and three, to three hundred and twelve, both inclusive of this Code. $301.— Appeal to be entered by clerk on judgment docket. Case how stated and settled. Within the time prescribed in the preceding section, the appellant shall cause his appeal to be entered by the clerk on the judgment docket, and notice thereof to be given to the adverse party. He shall cause to be prepared a concise statement of the case, embodying the instructions of the Judge as signed by him, if there be any exception thereto,, and the requests of the counsel of the parties for instructions if there be any exception on account of the granting or with- holding thereof, and stating separately in articles numbered, the errors alleged. A copy of this statement shall be served on the respondent as provided in section eighty, within five days from the entry of the appeal taken ; within three days after such service, the respondent shall return the copy with his approval or specific amendments endorsed 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 objections as pre- scribed, 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 request ; 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 they be not present, file a copy in the office of j CIVIL PROCEDURE. 115 the clerk of the court. In settling the case, the written instructions signed by the Judge, and the written requests for instructions signed by the counsel, and filed as prescribed in sections two hundred and thirty-eight and two hundred and thirty-nine, shall be taken as conclusive as to what such instructions and requests were. If a copj 1 - 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 fail to do so, the respondent may file his copy. cu scenritj being givea. Whenever an appeal is perfected as provided by sections three hundred andfour, three hundred and five, three hundred and six, and three hundred and seven, it stays all further proceedings in the court below upon the judgment appealed from, or upon the matter embraced therein; but the court below may proceed upon any other matter included in the actfon and not affected by the judgment appealed from. And the court below may, in its discretion, dispense witli or limit the security required by sections three hundred and four three hundred and five, and three hundred and seven, when t lie 118 THE CODE OF appellant is an executor, administrator, trustee, or other person acting in another's right; and may also limit such security to an amount not more than fifty thousand dollars, in the cases mentioned in sections three hundred and five, three hundred and six, three hundred and seven, where it would otherwise, according to those sections, exceed that sum. gS$(MN— Existing snits— IndiM -takings may be in one instrnment or several- The undertakings prescribed by sections three hundred and four, three hundred and five, three hundred and six, and three hundred and seven, may bein one instrument or several, at the option of the appellant; and a copy, including, the names and residence of the sureties, must be served on the adverse party, with the notice of appeal, unless a deposit is made as provided in section three hundred and four, and notice thereof given. V)310.— Existing suits— Security to be approved and to justify. An undertaking upon an appeal shall be of no effect, unless it be accompanied by the affidavit of the sureties that they are each worth double the amount specified therein. The respondent may, however, except to the suffi- ciency of the sureties, within ten clays after the notice of the appeal; and unless they or other sureties justify before the Judge or court below, or as prescribed by sections one hundred and sixty-five and one hundred and sixty-six, within • ten days thereafter, the appeal shall be regarded as if no undertaking had been given. The justification shall be upon a notice of not less than five days. <)3 11.— Existing suits— Perishable property may be sold notwithstanding appeal- In the cases not provided for in sections three hundred, and five, three hundred and six, three hundred and seven, and three hundred and eight, the perfecting of an appeal, by giving the undertaking mentioned in section three hundred and four, shall stay proceedings in the court below upon the judgment appealed from, except that where it directs CIVIL PROCEDURE. 119 the sale of perishable property, the court below may order the property to be sold, and the proceeds thereof, to be deposited or invested, to abide the judgment of the appellate court j312. — Existing suits— Undertaking must be filed. The undertaking must be filed with the clerk with whom the judgment or order appealed from was entered. The provisions of this chapter as to the security to be giveu upon appeals, and as to the stay of proceedings, shall apply to all appeals taken to the Supreme Court. ^ 313. — Existing suits — Intermediate orders affeeting the judgment may be reviewed on the appeal. Upon an appeal from a judgment, the court may review any intermediate order involving the merits and necessarily affecting the judgment. $311.-— Existing suits— Judgment on appeal— Restitution. Upon an appeal from a judgment or order, the appellate court may reverse, affirm or modify the judgment or order appealed from, in the respect mentioned in the notice of appeal, and as to any or all of the parties, and may, if necesssary or proper, order a new trial. When the judgment is reversed or modified, the appellate court may make com- plete restitution of all property and rights lost by the erro- neous judgment. The foregoing sections, from section three hundred and four, to section three hundred and fourten, both inclusive shall apply to existing suits. 120 THE CODE OF TITLE XIY. OF TEE MISCELLANEOUS PROCEEDINGS IN CIVIL ACTIONS, AND GENERAL PROVISIONS. CHAPTER I. SUBMITTING A CONTROVERSY WITHOUT ACTION. §215.— Controversy, how mi limit ted without action. Parties to a question in difference, which might be the subject of a civil action, may, without 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 proceeding in good faith, to determine the rights of the parties. The Judge shall thereupon hear and deter- mine the case, and render judgment thereon, as if an action were depending. §316« — Judgment. Judgment shall be entered in the Judgment Docket, as in other cases, but without costs for any proceeding prior to trial. The case, the submission, and a copy of the judg- ment shall constitute the judgment-roll. The costs of the trial shall be five dollars. §317. — Judgment, how enforced or appealed from. ^m^ The judgment may be enforced in the same monncr^^P^ it had been rendered in an action, and shall be subject to appeal in like manner. CIVIL PROCEDURE. 121 CHAPTER II. PROCEEDINGS AGAINST JOINT DEBTORS, HEIRS, DEVISEES, LEGATEES, AND TENANTS HOLDING UNDER A JUDGMENT DEBTOR. And it shall be the duty of the Attorney-General, when- ever he shall have reason to believe that any of these acts or omissions can be established by proof, to apply for leave, and upon leave granted to bring the action, in every case of public interest, and also in every other ease in which sat- isfactory security shall be given to indemnify the State against the costs and expenses to be incurred there! >y. §365.— Leave how obtained. Leave to -bring the action may be granted upon the appli- cation of the Attorney-General; and the court or Judge may at discretion, direct notice of such application to be given to the corporation or its officers, previous to granting such leave, and may hear the corporation in opposition thereto. §366. — Action upon information or complaint, of eonrsc. An action may be brought by the Attorney-General in the name of the people of this 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 unlaw- fully 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 the provisions of law, shall make a forfeiture of his office; or 3. When any association or number of persons shall act within this State as a corporation, without being duly incor- porated. §367. — Action when and how brought to vacate letters patent. An action may be brought by the Attorney-General, in the name of the State, for the purpose of vacating or annull- ing letters patent granted by the State, in the following cases : 140 THE CODE OF 1. When he shall have reason to believe that such letters patent were obtained by means of some fraudulent sugges- tion or concealment of a material fact, made by the person to whom the same were issued or made, or with his consent or knowledge; or 2. When he shall have reason to believe that such letters patent were -issued through mistake, or in ignorance of a material fact; or 3. When he shall have reason to believe that the patentee, or those claiming under him, have done or omitted an act, in violation of the terms and conditions on which the letters patent were granted, or have by any other means forfeited the interest acquired under the same. £3»i8.— Relator, when to be joined as plaintiff. When an action shall be brought by the Attorney-General, by virtue of this chapter, on the relation or information of a person having an interest in the question, the name of such person shall be joined with the State as plaintiff, and in every such case the Attorney-General may require as a con- dition for bringing such action, that satisfactory security shall be given to indemnify the State against the costs and expenses to be incurred thereby; and in every case where such security is given, the measure of the compensation to be paid by such person or persons to the Attorney-General, shall be left to the agreement of the parties express or implied. its form. CHAPTER IV. ACTIONS FOR WASTE AND NUISANCE. §383.— Actions of waste abolished. Waste how remediable. - The action of waste is abolished ; but any proceeding- heretofore commenced, or judgment rendered, or right acquired, shall not be affected thereby. Wrongs heretofore remediable by action of waste, are subjects of action as other- wrongs, in which action there may be judgment for dam- ages, for feitureof theestate, of the party offending, and evic- tion from the premises. $384.— Provisions of Revised Code applicable to action for naste under this act. The provisions of the Revised Code relating to the action, of waste shall apply to an action for waste brought under this act, without regard to the form of the action, so far as the same can be so applied. §385. — Wlien judgment of forfeiture and eviction to be given. Judgment of forfeiture and eviction shall only be given - in favor of the person entitled to the reversion, against the tenant in possession, when the injury to the estate in rever- sion shall be adjudged in the action to be equal to the value of the tenant's estate or unexpired term, or to have been, done in malice. CIVIL PROCEDURE. 145 §386.— Writ of nuisance abolished. The writ of nuisance is abolished; but any proceeding heretofore commenced, or any judgment rendered, or right acquired, shall not be affected thereby. §387.— Remedy for injuries heretofore remediable by writ of nuisance. Injuries heretofore remediable by writ of nuisance are sub- jects of action, as other injuries ; and in such action there may be judgment for damages, or for the removal of the nuisance, or both. TITLE XVI. GENERAL PROVISIONS. §388.— Definition of " real property." The words " real property," as used in this act, are co-ex- tensive with lands, tenements and hereditaments. §389. — Definition of " personal property." The words "personal property," as used in this act, include money, goods, chattels, things in action, and evi- dences of debt. §390.— Definition of "property." The word " property," as used in this act, includes pro- perty real and personal. §391. — Rule of construction. The rule of common law, that statutes in derogation of that law are to be strictly construed, has no application to this act. 70 146 THE CODE OF §392.— Statutory provisions inconsistent with this act repealed. All statutory provisions inconsistent with this act are repealed; but this repeal shall not revive a statute or law which may have been repealed or abolished by the provisions hereby repealed. And all rights of action given or secured by existing laws may be prosecuted in the manner provided by this act. If a case shall rise in which an action for the enforcement or protection of a right, or the redress or pre- vention of a wrong, cannot be had under this act, the prac- tice heretofore in use may be adopted so far as may be necessary to prevent a failure of justice. §393. — Rules and practice inconsistent with this act abrogated. The present rules and practice of the courts in civil actions, inconsistent with this act, are abrogated: except where otherwise expressly provided, but where consistent with this act, they shall continue in force, subject to the power of the respective courts to relax, modify, or alter the same. §391. — Judges of Supreme Court shall make rules of practice. The Judges of the Supreme Court of the State, shall make from time to time, rules for the practice of that Court, and also rules for the practice and procedure of the Superior Courts, not inconsistent with the provisions of this Act. £395. — Judges of the Superior Conrt to suggest rules. Every Judge of a Superior Court, at least once in two years, shall send to the Chief Justice of the Supreme Court, any suggestions which he may think fit. respecting the practice and procedure of the Courts, and respecting any other changes in the law which may seem likely to be useful. §391.— If Judge of a Superior Court not present, Court to be adjourned, wheu. It the Judge of a Superior Court shall not be present to hold any term of a court, at the time fixed therefor; it shall be the duty of the sheriff, to adjourn the court from da} 7 to CIVIL PROCEDURE. M Jay, until the fourth day of the term inclusive, unless he shall be sooner informed that the Judge, trom any cause, cannot 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 cannot hold the term, it shall then be the duty of the sheriff to adjourn the court until the next term. §:J97. — If trial for felony iu progress at expiration of a term, term to be pro- longed. In case the term of a court shall expire while a trial for felony, or for any offence punishable by imprisonment in a penitentiary, or by any greater punishment, shall be in pro- gress, and before judgment shall be given therein, the Judge shall continue the term as Jong as in his opinion it shall be necessary for the purposes of the case. with the reasons thereof, to the -General Assembly at its next term. Chapter I. i< II. (< III. K IVi (( V. (( VI. (< VII. (( VIII (( IX. U X. u XI. TITLE XIX. PROBATE COURTS. Jurisdiction and powers. Probate of deeds. Jurisdiction over estates of deceased persons. Probate of wills. Letters testamentary. Letters of administration with the will annexed. Letters of administration. VIII. Letters of collection. General provisions respecting executors, &c. Guardian and ward. Accountings by executors, administrators, collectors and guar- dians ; and anditings by the Judge of Probate. " XII. Masters and apprentices. " XIII. Transfer and appeal ' 4 XIV. What laws repealed and unrepealed. CHAPTER 1. JURISDICTION AND POWERS. $117.— Judges of Probate. The Clerks of the Superior Courts are declared Judges of Probate in their respective counties. $118— Jurisdiction. They have jurisdiction : 1. To take proof of deeds, bills of sale, official bonds, letters of attorney, or other instruments permitted or required by law to be registered; 154 THE CODE OF 2. To take proof of wills and grant letters testamentary and of administration; 3. To revoke letters testamentary and of administration ; 4. To appoint and remove guardians of infants, idiots and lunatics ; 5. To 'bind out apprentices and to cancel the indentures in such cases; 6. To audit the accounts of executors, administrators, and guardians ; 7. To exercise jurisdiction conferred on them in every other case prescribed by law. $119. — Disqualification to act. No Judge of Probate can act as such in relation 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 interest, 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 hear- ing 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 disqualification ceases when such deed, testa- mentary paper, or will has been finally admitted to or refused probate in another probate court, or before the Judge of the Superior Court. 4. If he or his wife is named as executor or trustee -in any testamentary or other paper; but this disqualification ceases when the will or other paper is finally (admitted to, or) refused probate in another probate court, or before the Judge of the Superior Court; £ 1 20.— Waiter of disqualification. The parties may waive the disqualification specified in subdivisions 1, 2 and 5 of the preceeding section, and upon filing in the office such waiver in writing, the Judge of Probate shall act as in other cases. CIVIL PROCEDURE. 155 $491.— Removal of Proceedings. When any of the disqualifications specified in section three exists, and there is no waiver thereof, or cannot be such waiver, any party in interest may apply to the Judge of the district for an order to remove the proceedings to the Probate Judge of an adjoining county in the same district. 5422. — Enumeration of powers. Every Judge of Probate has power : 1. To issue subpoenas to compel the attendance of any witness residing, or being in the State, or the production of any paper, material to any inquiry pending in his court; 2. To administer oaths and take acknowledgements, when- ever necessary, in the exercise of the powers and duties of his office; 3. To issue commissions to take the testimony of any wit- ness 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 ; 5. To enforce all lawful orders and decrees by execution or otherwise, against those who fail to comply therewith or to execute lawful process. Process may be issued by the Probate Judge, to be executed in any county of the State, and to be returned before him; 6. To exemplify, under the seal of his court, all transcripts •of deeds, papers or proceedings therein, which shall be received in evidence in all the courts of the State; 7. To preserve order in his court and to punish 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 man- ner as courts of general jurisdiction ; 10. To award costs and disbursements as pa-escribed by law, to be paid personally, or out of the estate or fund, in any- proceeding before him. 166 THE CODE OF §423.— How party may appear. A party may appear in proceedings in which he is con- cerned in the Probate Court, either in person or by attorney. V)42i. — Jndgc of Probate not to act as attorney. A Judge of Probate cannot act as attorney or counsel in a civil action, for or against an executor, administrator or guardian, over whom or whose accounts he might by law have jurisdiction, whether such action relates to business of the estate or not. He cannot act as attorney or counsel in any cause originating in his court; nor shall any partner or person connected in law business with him act as counsel or attorney in any proceeding before such Judge of Probate,, or originating in his court. (>425.— Seals. The seal, to be used by the Judges of Probate must be the same as used by them in their capacity as clerks of the Supe- rior Courts; but all orders, decrees, exemplifications or other papers relating to the Probate Court, or proceedings therein^ must be signed by them as Judges of Probate, and not as clerks of the Superior Court. ^426. — Files. Every Judge of Probate must file and preserve all papers in proceedings before him, or belonging to the court; and all such papers and the books kept by him belong to and appertain to his office, and must [be delivered to his suc- cessor, §447 — Records. The following books must be kept by each Judge of Pro- bate : 1 . A Records of wills, in which must be recorded all wills,, with the certificates of probate thereof; 2. A Record of appointments of executors, administrators, guardians, collectors, and masters of apprentices, with revo- cations of all such appointments. CIVIL PROCEDURE. 157 3. A Record of all orders and decrees passed in his office, which he is required to make in writing, and not required to be recorded in some other book; 4. A Record of accounts, in which must be recorded the •quarterly and annual accounts of executors, administra- tors, collectors and guardians, as audited by him from time to time; 5. A Record of settlements, in which must be entered the final settlements of executors, administrators, collectors and guardians. 6. A Fee-book, in which must be entered the items of all fees for services of the Probate Judge in each particular proceeding or estate, and when and by whom paid. And he must annually, during the first week in September, at ■own expense, report to the Secretary of State a Verified state- ment of all his fees received or charged during the year precceding the first day of September. ')428. — Books to be furnished by Secretary of State, aud to be indexed. The books required to be kept by the last section must te furnished to the Judge of Probate by the Secretary of State; and to each of such books there must be attached ah alpha- betical index securely bound in the volume, referring to the entries therein by the page of the book. These books must, at all proper times, be open to the inspection of any person. CHAPTER II. PROBATE OF DEED*. s 129. — How made. All deeds conveying lands in this State, or letters of attorney, or other instruments concerning the same, except leases not having more than three years to run, must be 158 THE CODE OF offered for probate, or a certified probate thereof must be exhibited before the Judge of Probate of the county, in which the real estate is situated, in the manner following; 1. Where the grantor or maker, or the subscribing wit- ness, reside in the State, the deed or other instrument must be acknowledged by such grantor or maker, or proved on the oath of such subscribing witness; 2. Where the grantor or maker and the subscribing wit- ness are dead, satisfactory proof of the handwriting, both of the grantor or maker and of the subscribing witness, must be made; unless it appear by affidavit or otherwise that, after due diligence, such proof is impossible; when proof of the handwriting of the grantor or maker, or of the subscrib- ing witness shall be sufficient. 3. Where the grantor or maker and the subscribing wit- ness, reside beyond the limits of the State, but within' the United States, the Probate Judge, having jurisdiction, shall issue under the seal of his court, a commission to a commis- sioner at the place of residence of such grantor, maker or witness, authorizing the commissioner to take the acknowl- edgment of the parties to the deed, or the examination on oatii of the witness thereto, touching the execution thereof. The proceedings of the Commissioner, so authorized, being returned to the Probate Judge Avho issued the same, he may proceed to adjudge, that such deed or other instrument is duly acknowled or proved. 4. Where the acknowledgment or proof of any deed or other instrument is taken or made, in the manner directed by the laws of this State, before any commissioner of affi- davits for the State of North Carolina, appointed by the Governor thereof, in any of the States or territories of the United States or in the District of Columbia; and where such acknowledgment or proof is certified by such commissioner, the Judge of Probate, having jurisdiction, upon the same being exhibited to him, shall adjudge such deed or other instrument to be duly acknowledged or proved in the same manner as if made or taken before him. CIVIL PROCEDURE. 159 5. Where the grantor or maker and the subscribing wit- ness, reside beyond the limits of the United States, the deed or other instrument may be personally acknowledge d by such grantor or maker, or proved on the oath of such sub- scribing witness, before the chief magistrate of any city in the country where the grantor or witness is resident; or before any ambassador, minister, consul or commercial agent of the United States; and where such proof or acknowledgment is certified under the corporate seal of such chief magistrate, or under the official seal of such ambassador, minister, con- sul or commercial agent; and where such certificate is affixed to the deed or other instrument, and the same is exhibited before the Probate Judge, having jurisdiction, he shall adjudge that such deed, or other instrument, is duly proved, or acknowledged. 6. Every conveyance, power of attorney or other instru- ment affecting the estate, right or title of any married woman in lands, tenements or hereditaments, must be jointly executed by such married woman with her husband; and due proof or acknowledgment thereofmust.be made as to the husband, before the Judge of Probate having jurisdic- tion, who shall take the acknowledgment of the wife, and privily examine her, apart from her husband, touching her voluntary assent thereto. He shall also endorse thereon a certificate of such assent. When such proof or acknowledgment is made as to the husband, and it appears, that the wife is a resident of some other State, or being a resident of this State, is so aged or infirm, that she cannot travel to the Judge of Probate to make such acknowledgment in person: in that case, the Judge of Probate shall issue a commission to a commis- sioner.- for receiving such acknowledgment and for taking the private examination of the wife, apart from her hus- band, touching her assent; which commission, with a cer- tificate of the acknowledgment and private examination, being returned to the Probate Judge, he shall adjudge that such conveyance, power of attorney or other instrument is duly acknowledged, and that such examination is in due form. 160 THE CODE OF When the proof or acknowledgment of a conveyance, power of attorney or other instrument concerning the interest of a married woman in lands, is taken before a com- missioner of affidavits, as directed in sub-division four, or in foreign parts, as directed in sub-division five, of this Article ; no Judge of Probate shall adjudge such conveyance or other instrument to be duly proved or acknowledged, unless the private examination of such married woman is taken accord- ing to the laws of this State, and a certificate thereof is attached to the deed or other instrument, «)430>— When land lies in two or more counties. Where real estate is situated in two or more counties, pro- bate of the deed or other instrument, conveying or concern- ing the same, made in the probate court of any of said coun- ties, is sufficient. <; 4 31.— Official Bonds. The official bonds of all county officers including consta- bles, must be acknowledged by the obligors, or proven on the oath of the subscribing witness, thereto, before the Judges of Probate of the respective counties: Provided, that the official bonds of the Clerk of the Superior Court may be present or acknowledged as herein directed before the Reg- ister of Deeds of the proper county. 0>432.— M lien Judu;e of Pnobato disqualified to a«t. Any Judge of the Superior Court, or the Probate Judge of an adjoining county, is authorized to act in matters embraced within this article, only when the Judge of Probate of the county, where the real estate is situated, is disqualified under sub- division three, section three, chapter I, of this title. CIVIL PROCEDURE. 161 CHAPTER III. JURISDICTION OVER THE ESTATES OF DECEASED PERSONS. §433.— When Probate Judge has jurisdiction of the estate. The Judge of Probate of each county has jurisdiction, within his county, to take proof of wills and to grant letters testamentary, letters of administration with the will annexed and in cases of intestacy, in the following cases: 1. Where the decedent at, or immediately previous to his death, was domiciled in the county of such Probate Judge, in whatever place such death ma"y have happened. 2. Where the decedent at his death, had fixed places of domicil in more than one county, the Judge of Probate of any such counties has jurisdiction. 3. Where the decedent, not being domiciled in this State, died out of the State, leaving assets in the county of such Judge of Probate, or assets of such decedent thereafter come into the county of such Probate Judge. 4. Where the decedent, not being domiciled in this State, died in the county of such Judge of Probate, leaving assets in the State, or assets of such decedent thereafter come into the State. <;434. — Probate Judge first acquiring jurisdiction to have exclusive jurisdiction. The Judge of Probate, who first gains and exercises juris- diction under sub-division two and three, of the preceeding section, thereby acquires sole and exclusive jurisdiction over t4ie decedent's estate. CHAPTER IV. PRORATE OF WILLS. $435. — How wills admitted to probate. Wills and testaments must be admittei to probate only in the following manner: 11 162 THE CODE OF 1. In case a of 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 are insane or other- wise incompetent to testify, then such 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 Judge of Probate of the genuineness and the due execution of such will. 2. In case of a holograph will, on the oath of, at least, three credible witnesses, Avho state, that they verily believe such will and every part thereof, is in the handwriting of the person whose will it purports to be, and whose name must be subscribed thereto, or inserted in some part thereof. It must further appear on the oath of some one of said wit- nesses, or of some other credible person, that such will was found among the valuable papers and effects of the decedent, or was lodged in the hands of some person for safe keeping. 3. In case of a nuncupative will, where the estate exceeds two hundred dollars; on the oath of, at least two credible witnesses present at the making thereof, who state that they were specially required to bear witness thereto by the tes- tator 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 previously resident, for, at least, ten days, unless he died on a journey or from home. No nuncupative will shall be proved by the witnesses after six months from the making thereof, unless it was put in writing within ten days 'from such making; nor shall it be proved till a citation has been first issued or publication been made for six weeke in some newspaper printed in the State, to call in the widow and next of kin to contest such will if they think proper. $136.— Executor not ineonipeteat as a witness. No person, on account of being an executor of a will, is incompetent as a witness to prove the execution thereof. CIVIL PROCEDURE. 163 §43T. — Proofs aud examinations iu writing. Every Judge of Probate 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 exaninations, in case the will is admitted to probate, in his certificate of the probate thereof, which certificate must be recorded with the will. The proofs aud examinations as taken must be filed in the office. $438. — Probate how far touelusivc. Such record and probate is conclusive in evidence of the validity of the will, until it is vacated on appeal or declared void by a competent tribunal. §439.— Who may apply for probate. Any executor named in a will may, at any time after the death of the testator, apply to the Judge of Probate, having jurisdiction, to have the same admitted to probate. $140.— Who may apply when executor does not. 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 person interested in the estate, may make such application, upon ten days' notice ffWeof to the executor. §441.— What to be shown on application. On application to the Judge of Probate, 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 residence of all parties entitled to the testator's property, it known, or that the same on diligent inquiry cannot be discovered; which of said parties in 164 THE CODE OF interest are minors, and whether with or without guardians, and the names and residence of such guardians, if known. Such affidavit shall be recorded with the will and the certificate of probate thereof, if the same is admitted to probate. §442.— Prod action of will compelled by process. Every Judge of Probate having jurisdiction, on application by affidavit setting forth the facts, shall, by summons, com- pel any person in the State, having in possession the last will of any decendent, to exhibit the same in his court for probate ; and whoever being duly summoned, refuses in con- tempt 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 Probate Judge, be committed to the prison of the county; there to remain without bail till such will be produced or accounted for, and due submission made for the contempt. <> 443.— Will made without the State; how proved. Whenever it is suggested to the probate court, by affi- davit or otherwise, that a will has been made without the State, disposing of or charging- land or other property within the State, the Judge of Probate of the county, where the property is situated may issue a commission to such person as he may select, authorizing the commissioner to take the examination of such witnesses as may be produced, touch- ing the execution thereof, and upon return of such commis- sion, with the examination, he may adjudge the said will to be duly proved or otherwise, as in cases on the oral examina- tion of witnesses before him, and if duly proved, such will shall be recorded. §14'. — Villi of citizen or subjeit of another country ; how allowed and record- ed in this State. Whenever any will, made by a citizen or subject of any other State or country, is duly proved and allowel in such CIVIL PROCEDURE. 165 State or country, according to the laws thereof, a copy or exemplification of such will, duly certified and authenticated, when produced or exhibited before the Judge of Probate of any county, wherein any property of the testator may be, shall be allowed, filed and recorded in the same manner as if the original, and not the copy, had been produced, proved and allowed before such Probate Judge. But when any such will contains any devise or disposition of real estate in this State, such devise or disposition shall not have any validity or operation, unless the will is executed according to the laws of this State ; and that fact must appear affirmatively in the certified probate or exemplification of the will ; and if it do not so appear, the Judge of Probate before whom the copy is exhibited, shall have power to issue a commission for taking proofs, touching the execution of the will, as pre- scribed in the preceding section; and the same may be adjudged, duly proved, and shall be recorded as therein pro- vided. $445. — Will of citizen of this State proved elsewhere ; how proved and recorded here. When a will, made by a citizen of this State is proved and allowed in some other State or country, and the original will cannot be removed from its place of legal deposit in such other State or country, for probate in this State ; the Probate Judge 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 pro- bate, 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. §116.— Caveat. 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, mav appear in person or by attorney before the probate court, and enter a caveat to the probate of such will. 166 THE CODE OF §447. — Transferred to Superior Court ; when. Upon any caveator giving bond, with sufficient surety to be approved by the Probate Judge, in the sum of two hundred dollars, payable to the propounder of the will, con- ditioned to pay all costs which, may be adjudged against such caveator in the Superior Court, by reason of his failure to prosecute his suit with effect ; the Probate Judge shall transfer the cause to the Superior Court for trial ; and he shall also forthwith issue a citation to all devisees, legatees or other parties in interest within the State, and cause pub- lication to be made, for six weeks in some newspaper printed in the State, for non-residents, to appear at the term of the Superior Court, to which the proceeding is transferred, and to make themselves proper parties to the said proceeding, if they choose. §448. — Order to suspend proceedings. Where a caveat is entered and bond given, as directed in the last two sections, the Judge of Probate shall forthwith issue an order to any personal representative, having the estate in charge, to suspend all further proceedings in rela- tion to the estate, except the preservation of the property and the collection of debts, until a decision of the issue is had. CHAPTER V. LETTERS TESTAMENTARY. §449.— Who is disqualified to serve as executor. The Judge of Probate shall not issue letters testamentary to any person who, at the time of applying to qualify, is 1. Under the age of twenty-one years ; 2. A person convicted of an infamous crime ; CIVIL PROCEDURE. 167 3. Who, on proof, is adjudged by the probate court, in- competent to execute the duties of such trust by reason of drunkenness, improvidence, or want of understanding; 4. Who fails to take the oath or to give bond in cases where executors are required by law to give bond ; 5. Who has renounced his executorship. §450. — Executor may renounce. Any person appointed as executor may renounce the office by a writing signed by him, and on the same being acknowl- edged or proved to the satisfaction of the Probate Judge, it shall be filed. §451* — When executor deemed to hare renounced. If any person appointed an executor does not qualify or renounce within sixty days after the will is admitted to pro- bate, the Judge of Probate, on the application of any other executor named in the same will, or any party interested, shall issue a citation to such person to show cause why he should not be deemed to have renounced. If, upon service of the citation, he does not qualify or renounce within such time, not exceeding thirty days, as is allowed in the citation, an order must be entered by the Judge of Probate decree- ing that such persons has renounced his appointment as executor. ()152' — Executor under disqualification of age or absence. Where any executor named in the will is under the dis- qualification of non-age, specified in section four hundred and forty-nine, or is temporarily absent from the State, such executor is entitled to six months, after coming of age 168 THE CODE OF or after his return to the State, in which to make application to qualify and take letters testamentary. CHAPTER VI. LETTERS OF ADMINISTRATION WITH WILL ANNEXED. §153.— To be granted ; when and to whom. If there is no executor appointed in the will, or if, at any time, by reason of death, incompetency, adjudged by the Probate Court, renunciation, actual or decreed, or removal by order of the court, or on any other account, there is no exe- cutor qualified to act, the Judge of Probate may issue letters of administration, with the will annexed, to some suitable person or persons, in the order prescribed in section four hundred and fifty-six, Chapter VII. §454.— Qualifications. &e. Administrators ( in cases prescribed in the preceeding section) shall have the same qualifications and give the same bond as other administrators. $455.— Will of testator to be olserved. In all cases, where letters of administration with the will annexed, are granted, the will of the testator must be observed and performed by the administrator with the will annexed, both in respect to real and personal property, and an administrator with the will annexed, has all the rights and powers, and is subject to the same duties as if he had been named executor in the will. CIVIL PROCEDURE. 169 CHAPTER VII. LETTERS OF ADMINISTRATION. <>456. — To whom granted. 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 husband or widow ; 2. To the next of kin in the order of their degree, where they are of different degrees — if of equal degree, to one or more of them, at the discretion of the probate court ; 3. To the most competent creditor, who resides within the State, and proves his debt on oath, before the probate court ; 4. To any other person legally competent. 2 457. — Disqualifications. The Probate Judge shall not issue letters of administra- tion to any person, who, at the time of appearing to qualify, is 1. Under -the age of twenty-one years ; 2. An alien, who is a non-resident of this State ; 3. A person who has been convicted of an infamous crime; 4. Who, on proof, is adjudged by the Probate Court incompetent to execute the duties ot such trust, by reason of drunkenness, improvidence or want of understanding; 5. Who fails to take the oath or give the bond required by law. §158. — Joining persons not entitled. With the consent of the person or persons who arc enti- tled, letters of administration may be granted to one or more competent persons who are not entitled, jointly with those who are entitled. Such consent must be in writing, and the Probate Jude shall file the same. 170 THE CODE OF §459. — Renunciation of persons having prior right. When any person applies for administration, and any .other person has prior right thereto, a written renunciation of the person or persons, having such prior right, must be pro- duced and filed with the Probate Judge. $165. — Persons having prior right disqualified or absent. When any person having such prior right to administra- tion, is under the disqualification of age specified in section four hundred and fifty-six. or is temporarily absent from the State,- such person is entitled to six months, after the disa- bility of age is removed or his return to the State, in which to renounce his right or apply for letter of administration, §461. — What mnst be shoMn on application. On application for letters of administration, the Judge of Probate must ascertain by affidavit of the applicant or otherwise ; 1. The death of the decedent and his intestacy. 2. That the applicant is the proper person entitled to administration, or that he applies after the renunciation of the person or persons so entitled. 3. The value and nature of the intestator's property, the names and residence of all parties entitled as heirs or dis- tributees of the estate, if known, or that the same cannot on diligent enquiry be procured; which of said parties are minors, and whether with or without guardians, and the names and evidence of such guardians, if known. Such affidavit or other proof must be recorded and filed by the Probate Judge. §462. — Contested administration. Any person interested in the estate may, on complaint filed and notice to the applicant, contest the right of such applicant for letters of administration, and on any issue of fact joined, or matter of law arising, on the pleadings, the CIVIL PROCEDURE. 171 cause may be transferred to the Superior Court for trial, or an appeal be taken, as in other cases provided in this Act, Chapter XIII. CHAPTER VIII. LETTERS OF COLLECTION. £463.— AYhen to i$*ue and to whom. 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 letters of adminis- tration with the will annexed, the Judge of Probate may issue to some discreet person or persons at his option, letters of collection, authorizing the collection and preservation of the property of the decedent. §461. — Qualifications, &c. Every collector shall have the qualifications, and give the bond prescribed by law for an administrator. $465.— Authority, &c. Every collector has authority to collect the personal pro- perty, take possession and receive the rents and profits of the real property, preserve and secure the estate, and collect the debts and credits of the decedent. And for these pur- poses, he may commence and maintain or defend suits, and he may sell, under the direction and order of the Probate Judge, any personal property for the preservation and benefit of the estate. He may be sued for debts, due by the dece- dent; and he may pay funeral expenses and other debts. $466. — Authority when to tease, &e. "When letters testamentary, letters of administration, or letters of administration with the will annexed, are granted, the powers of such collector shall cease, but any suit brought 172 THE CODE OF by the collector may be continued by his successor, the executor or the administrator, in his own name. Such col- lector must, on demand, deliver to the executor or adminis- trator all the property, rights and credits of the decedent under his control, and render an account, on oath, to the Probate Judge of all his proceedings. Such delivery and account may be enforced by citation, order or attachment. CHAPTER IX. GENERAL PROVISIONS RESPECTING EXECUTORS, &C. $467.— Oaths, &c. Before letters testamentary, letters of administration with the will annexed, letters of administration or letters of col- lection, are issued to any person, he must take and subscribe an oath or affirmation, before the Judge of Probate, that he will faithfully and honestly discharge the duties of his trust, which oath must be filed in the office of the Probate Judge. §468.— Bond, &c. Every executor from whom a bond is now 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 approved'by the Probate Judge, and to be jointly and severally bound. The penalty in such bond must be double, at least, the value of all property, real and personal, of the decedent ; which value is to be ascer- tained, by the Probate Judge, by the examination on oath of the applicant and of any other person. The bond must be conditioned, that such executor, administrator or collector shall faithfully execute the trust reposed in him as such, and obey all lawful orders of the probate or other court, touching the administration of the estate committed to him. CIVIL PROCEDURE. 173 518.— Justice to keep jury box. Each Justice shall keep a jury box, having two divisions marked No. 1 and 2, and having two locks, the key of one to be kept by the Justice and the other by the clerk ol the township Board of Trustees. CIVIL PROCEDURE. 191 §519.— Xanies of jurors to be deposited iu jury box. Each Justice shall cause the names on his jury list to be written on small scrolls of paper of equal size, and to be placed in the jury box, in division marked No. 1, until drawn out for the trial of an issue as required by law. ).j20.— When trial .by jury demanded or waived. A trial by jury must be demanded at the time of joining the issue of fact ; and if neither party demand at such time, a jury, they shall be deemed to have waived a trial by jury. §521.— Jury drawn and trial postponed. When a trial by jury is demanded, the Justice shall immediately, in the presence of the parties, proceed to draw the names of twelve jurors from division marked No. 1, of the jury box; and the the trial of the cause shall thereupon be postponed to a time and place to'«be fixed by the Justice. §522.— Summoning ot the jury. A list of the jurors so drawn shall be immediately deliv- ered by the Justice to any constable, with an order endorsed thereon, directing him to summon the persons named in the list, to appear as jurors, at the time and place fixed for the trial ; and it is the duty of the constable to proceed forthwith to summons such juaors, or so many of them as can be found, according to the order; and he shall make return thereof, at the time and place appointed, stating in his return the names of the jurors summoned by him. <;523.— Tbe jury for the trial of the cause. At the time and place appointed, 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 adjourned, the Justice shall proceed, in the presence of the parties, to draw from the jurors summoned the names of six persons to constitute the jury for the trial of the issue. ^524.— Challenge. Each party shall be entitled to challenge, peremptorily, two of the persons drawn as jurors. 192' THE CODE OF §525.— What names to be returned to the jury box or destroyed. The scrolls containing 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 No. 1 ; pro- vided that the scrolls containing the names of such as are not legally liable, or legally qualified to serve as" jurors, shall be destroyed. §526. — Tales jnrors may be summoned. If a competent and indifferent jury is not obtained from the twelve jurors drawn as specified in section five hundred and twenty-two, the Justice may direct others to be sum- moned, from the bystanders, sufficient to complete the jury. §527. — Jury sworn and empennelled — verdict, &c. The jury shall be sworn and empannelled by the Justice, who shall record their verdict in his docket and enter a judgment in the case according to such verdict. <>528.— New trial— 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 prescribed in chapter VI. of this Act. §529. — Less than six may be a jury — when. Six jurors shall constitute a jury in a Justices' court, but, by consent of both parties, a less number may constitute it. §580. — Not compelled to serve out of township. No person is compelled to serve as a juror, in a Justice's court, out of his own township, except as a talesman. §531.— Jnrors serving on trial, &c. 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 No. 2, until all the scrolls in division marked CIVIL PROCEDURE. 193 No. 1, have been drawn out. As often as that may happen, the whole number of scrolls shall be returned to division marked No. 1, to be drawn out as in the first instance. §538. — Deposit of jury fees. Before a party is entitled to a jury, he shall deposit with the Justice the sum of three dollars for jury fees; and the Justice shall pay to all persons who attend, pursuant to the summons, as well to those who do not actually serve as to those who do serve, twenty-five cents each, to be included in the judgment as part of the costs, in case the party demanding the jury recover judgment, but not otherwise. The Justice shall refund to the party the fees of all jurors who do not attend. $583. — Adjournment after return of the jury. No 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 Jus- tice, deposit with the Justice, to be immediately paid to the jurors attending, the sum of twenty-five cents each, such amount to be in no case included in the judgment, as part of the costs. On such adjournment, the jurors shall attend at the time and place appointed, without further summons or notice; and the fees for the jury, deposited with the Jus- tice according to the preceding section, shall remain in his hands, until the jury are empanneled on the trial, aud shall be then immediately paid to the jurors or to the party enti- tled thereto. CHAPTER VI APPEAL. $534. — Appeal— Execution. The party against whom judgment is rendered, in any civil action in a Justice's Court, may appeal to the Superior 194 THE CODE OF Court from the same ; but uo appeal shall prevent the issuing of an execution on such judgment or work a stay thereof, except as herein afterwards provided. $535 • — Appeal, when to be taken. The appellant shall, within ten days after judgment, serve a notice of appeal, stating the grounds upon which the appeal is founded. If the judgment is rendered upon process not personally served, or the defendant did not appear and answer, he shall have fifteen days, after personal notice of the rendition of the judgment, to serve the notice of appeal herein provided for. $538. — Notice of appeal, on whom served. The notice of appeal must, within the time stated in the last section, be served on the Justice who rendered the judgment, if living and within the county, and on the res- pondent or his agent or attorney, who appeared for him on the trial. §5.37.— Retnrn to the appeal. The Justice shall, thereupon, within ten days after the service of the notice of appeal on him, make a return to the appellate court and file with the clerk thereof, the papers, proceedings and judgment in the case, with the notice of appeal served on him. He may be compelled to make such return by attachment. But no Justice shall be bound to make such return until the fees, prescribed by law for this service, be paid him. The fee, so paid, shall be included in the costs, in case the judgment appealed from is reversed. §538. — Defective retnrn. If the return be defective, the Judge or Clerk of the appellate Court may direct a further or amended return, as often as may be necessary, and may compel a compliance with the order by attachment. CIVIL PROCEDURE. 195 §539.— On return to 'the appeal, what to be done. When the return is made, the Clerk of the appellate Court, if the judgment exceed twenty-five dollars, exclusive of cost, shall docket the case on his trial docket, for a new trial of the whole matter at the ensuing term of said court. If the judgment be for twenty-five dollars or less, exclusive of costs, he shall forthwith transmit the papers, proceedings and judgment to the Judge of the District, who shall hear and determine only the matters of law therein, and send his decision thereon to the clerk of the appellate court. •>10. — Appeal, on what heard* The appeal shall, in all cases, be heard on the original papers, and no copy thereof need be furnished for the use of the appellate court. §5*1. — Exeentlon of the judgment, bow stayed. If the appellant desire a stay of execution of the judg- ment, he may apply, at any time, to the clerk of the appel- late court for leave to give the undertaking, as provided in the next section; who shall, upon the undertaking being given, make an order Jhat all proceedings on the judgment be stayed. •§542,— Same, undertaking to he given. The undertaking shall be in writing, executed by one or more sufficient sureties, to be approved by the clerk of the appellate court making the order, to the effect that if judg- ment be rendered, against the appellant, and execution thereon be returned unsatisfied, in whole or in part, the sure- ties will pay the amount unsatisfied, together with all costs awarded against the appellant. $543.— Same, delivery aid service of order, on whom. A delivery of a certified copy of the order mentioned in section five hundred and forty-one to the Justice of the Peace, ••shall stay the issuing of the execution on the judgment; if 196 THE CODE OF it have 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 respondent, or his agent or attorney,, within ten days after the making thereof. §544.— Restitution. If the judgment appealed from, or any part thereof, be paid or collected, and the judgment be afterwards reversed,, the appellate court shall order the amount paid or collected to be restored, with interest from the time of such payment or collection. The -order may be obtained on proof of the facts made at or after the hearing of the appeal, on a previ- ous notice of six days. If the order be obtained before the judgment of reversal is entered, the amount may be included in the judgment. $515. — Costs, how awarded. If the judgment be affirmed, costs shall be awarded to the- respondent; if reversed, costs shall be awarded to the appel- lant; if affirmed in part, the costs may be awarded to either party in the discretion of the court. CHAPTER VII. GENERAL PROVISIONS RESPECTING JUSTICES OF THE PEACE. ^546. — Within what time to qualify. Every person elected or appointed a Justice of the Peace., shall, within ten days after such election or appointment^ take and subscribe the prescribed oath of office before the Clerk of the Superior Court; which oath shall be filed by the Clerk of said Court. And any person presuming to exe- cute the office of a Justice of the Peace without qualifying as herein directed, shal! be guilty of a misdemeanor. CIVIL PROCEDURE. 197 ■%M1. — Removal oat of township six months to forfeit office. When any Justice of the Peace removes out of his town- ship and does not return therein for the space of six months, he shall forfeit and lose his office ; and any such Justice of the Peace presuming to act thereafter, contrary to the pro- visions of this section, unless re-elected or re-appointed, shall be guilty of a misdemeanor. $548. — Resignation. Justices of the Peace wishing to resign, must deliver their letters of resignation to the Clerk of the Superior Court, who shall file the same. $549.— May issne process and try canses, where. A Justice of the Peace may issue a summmons or other piocess anywhere in his'county, but he shall not be com- pelled to try a cause out of the township for which he was •elected or appointed. §550.— Office nnder the United States. Any Justice of the Peace may accept a civil office or appointment of trust or profit, under the authority of the United States, the duties of which confine him to the county where he is resident. -$551. — Punishment on conviction of infamous crimes, &c. Upon the conviction of any Justice of the Peace, of an infamous crime, of corruption and malpractice in office, he •shall be removed from office, and he shall be disqualified from holding or enjoying any office of honor, trust or profit •under this State. §552.— Filing dockets with Clerks. Each Justice of the Peace, as often as he has filled his docket, shall file the same with the clerk of the Superior Court for his county. §553. — Delivery of unfilled docketto successor. When a vacancy exists, from any cause, in the office of a Justice of the Peace, whose docket is not filled, or when such 198 THE CODE OF Justice goes out of office by expiration of his term, sucb former Justice, if living, and if dead, his personal represen- tative, shall deliver such docket and all official papers to his successor, who is authorized to hear and determine any unfinished cause or causes on said docket, in the same man^ ner as if such cause or causes had been originally brough t before such successor. $551. — Filing and delivery — how enforced. The duty imposed on the Justice,, or his personal repre- sentative by the last two preceeding sections may be- enforced, on ten days' notice in writing to such Justice or his Representative; by attachment. TITLE XXI. FEES. Chapter I. General Provisions. (< II. Fees of Solicitors. H III. Fees of Clerks of Superior Courts. 1. In Civil Actions.. 2. In Criminal Actions. (( IV. Fees of Registers of Deeds. t< V. Fees of Sheriffs. (' VI. Fees of Coroners. Ci VII. Fees of Justices of the Peace. (( VIII. Fees of Constables. a IX. Fees of Jurors. a X. Fees and salaries of Clerks of the Supreme Court. CHAPTER I. GENERAL PROVISIONS. §555. — Fees of officers by whom and how payable. The several officers hereinafter named, shall receive the- fees hereinafter prescribed for them respectively, from the- CIVIL PROCEDURE. 199 persons for whom, or at whose instance, the service shall be performed, except^ersons suing as paupers ; and no officer shall be compelled to perform any service, unless his fees be paid or tendered. The said officers shall receive no extra allowance or other, compensation whatever, unless the same shall be expressly required by some statute. In case the service shall be ordered by any proper officer of the State, or of a county, for the benefit of the State or county, the fees need not be paid in advance ; but if for the State, shall be paid by the State, as other claims against it are , if for a county, by the County Commissioners, out of the county funds. §556i — Copy sheet de fined. A copy sheet shall consist of one hundred words. §557. — Fees on returns to Secretary of State. All officers required by law to make returns to the Secre- tary of State, shall receive for such returns five cents per copy sheet, to be audited on the certificate of the Secretary of State, and paid as other claims against the State are required to be. §558.— Officers to make return of fees. Every officer authorized to receive fees, shall, during the first week in September in every year, report to the Secre- tary of State, according to a form to be prepared "ami fur- nished by him, a sworn statement of all fees received, or which might have been received by him, during the year next preceeding the first day of September exclusive. For this report no fee shall be allowed. §559* — Clerks to furnish blank writs. Clerks of Courts shall furnish to parties printed copies of the formal parts of all writs required to be issued by them? with convenient blank spaces for the insertion of written matter; and also the blank forms of such bonds as are required to be taken by them. 200 THE CODE OF §560. — Who to pay costs In criminal actions. If a defendant be acquitted, or judgment against him arrested, the costs, including the fees of all witnesses sum- moned and actually examined for the accused, whom the Judge before whom the trial took place, shall certify to have been necessary or proper for his defence, shall be paid by the prosecutor, if any be marked on the bill, unless the Judge shall certify that there was reasonable ground for the prosecution, and that it was required by the public interest If there be no prosecutor, or if the Judge shall certify as afore- said, the costs shall be paid by the county in which the bill was found. $561.— -Half fees If convict insolvent. The costs in criminal actions shall in all cases be paid by the person convicted, it he be able; but if he be not able, the county where the bill was found shall pay the costs of the prosecution only; and in that case the public officers shall receive only half the fees otherwise allowed. $562.— How fees of offieers received. If any officer to whom fees are payable by any person, shall fail to receive them at the time the service is performed he may have judgment therefor on motion to the court 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 determination 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 terms. CHAPTER II. FEES OP SOLICITORS. §563. — When to receive fees — salary • The Solicitor shall receive no fees, except in case of judg- ment rendered against the accused; unless in cases where, CIVIL PKOCEDURE. 201 upon oonviction, the punishment might have been capital or confinement in the penitentiary at hard labor for- six months or upwards, and the Judge before whom the action was tried, shall certify, immediately after the trial, that there was probable ground for the prosecution, andf that the case has been conducted fairly and with due diligence. In such case he shall receive one-half of his fees from the county in which the bill was found, and he shall receive forty dollars additional for every attendance on the session of his Court. §564. — Solicitor's fees — for what. The Solicitors shall receive the following fees : 1. On every conviction for murder, twenty dollars. 2. On every conviction where, by law the punishment may be hard labor in a Penitentiary for one year or over, ten dollars. 3. On conviction on any other indictment, four dollars. 4. On final judgment against a defaulting witness or juror where no issue is joined, two dollars. 5. On such a judgment when contested, four dollars. 6. Judgment on undertaking of bail a or recognizance, if uncontested, two dollars. 7. On the same if contested, four dollars. 8. On application to renew bond to keep the peace, if granted, one dollar. 9. On an issue in bastardy — found against the putative father, four dollars. CHAPTER III. THE FEES OF CLERKS OP THE SUPERIOR COURTS. $565. — What fees and for what. The Clerks of the Superior Court shall be entitled to the following fees: 202 THE CODE OF I.— IN CIVIL CASES. 1. Furnishing blank writ of summons or other writ or process required to be issued by him and taking a bond from the plaintiff as security for costs or receiving a deposit from plaintiff and giving a certificate to him and the defendant, fifty cents. 2. Docketing summons, five cents. 3. Recording a return of a sheriff or other ministerial offi- cer, ten cents. 4. Receiving, filing, and noting on the docket, any plead- ing or demurrer, and delivering copies filed, to the parties to whom addressed, ten cents. 5. Order enlarging, or refusing to enlarge, time for plead- ing, or for any other act where authorized, fifty cents. G. Making order of publication where allowed, fifteen cents. 7. Entering judgment against either party in default of a plea, one dollar. 8. Judgment on any question authorized to be decided by him, if there be no appeal to the Judge, or if the judgment of the clerk be confirmed on the appeal, one dollar. 9. Preparing statement of case on appeal from his decis- ion to the Judge if the decision shall be confirmed, one dollar. 10. Transcript of record for Judge on issue of law joined on the pleadings, per copy sheet, ten cents. 11. Acknowledging receipt of decision of Judge, and notifying each attorney thereof, ten cents. 12. Taking an affidavit except to a witness or juror's ticket of attendance, fifteen cents. 13. Taking affidavit to witness or juror's ticket, ten cents. 14. Transcript of case and record for Supreme Court, per copy sheet, ten cents. 15. Mailing transcript, post paid, fifteen cents. 16. Docketing anyjudgment on Execution docket, twenty- five cents. 17. Affixing seal of court when necessary, twenty-five cents. CIVIL PROCEDURE. 20a 18. Entering on record any order or judgment of the Judge, on' a matter which he has jurisdiction to decide out of term, if not more than one copy sheet, twenty-five cents. If more than one copy sheet, for every copy sheet over the first, ten cents. 19. Entering on the docket a brief of any complaint, plea,, demurrer or motion, five cents. 20. Entering general verdict, five cents. 21. Enteiing special verdict by copy sheet, ten cents. 22. Entering appeal taken, five cents. 23. Issuing subpoena for witnesses, each name, ten cents. 24. Swearing a witness, five cents. 25. Copy of any record or writing in his office, per copy sheet, ten cents. 26. Probate or acknowledgment of a deed or writing of any sort authorized to be proved, (except where the private examination of a married woman is taken, for each grantor therein, fifty cents. 27. Probate or acknowledgment of deed or other writing and taking private examination of married women, with certificate thereof, one dollar. 28. Probate of a will in common form, with certificate and issuing, letters testamentary, one dollar. 29. Recording will, return or report of executor, adminis- trator, guardian or other trustee required to be recorded ;: per copy sheet, ten cents. 30. Grant of letters of administration of any sort, and taking bond of administration, one dollar. 31. Every notice required to be issued by Clerk, ten cents. 32. Grant of guardianship, including taking of bond; for each minor, fifty cents. 33. Apprenticing infant, including indenture, fifty cents. 34. Entering caveat on contested will, twenty cents. 35. Recording articles of agreement of proposed corpora- tion, including all services, two dollars. 36. Issuing commission of any sort, fifty cents. 37. Entering return to commission and order for registra- tion of deed, ten cents. 204 THE CODE OF • 38. Auditing account of executor, administrator, guar- dian, or other trustee, required to return accounts, one per cent, on the nett amount returned, if not over three hundred dollars ; three fourths of one per cent, if over three hundred and not over one thousand dollars; one-half of one per cent, if over one thousand and not over twenty thousand dollars; one sixth of one per cent, if over twenty thousand dollars. 39. Justification of sureties, fifty cents. 40. Issuing marriage license and making the record re- quired thereof, fifty cents. 41. Entry of birth or death when required to be made, five cents. II.— ES CRIMINAL ACTIONS. 42. Issuing capias — for each person to be arrested, fifty 'ce'nts. 43. Docketing action, and entering return, ten cents. 44. Taking a recognizance, ten cents. 45. Issuing subpoena — for each witness, ten cents. 46. Entering judgment against a defaulting juror or wit- ness or on a bail bond or recognizance, fifty cents. 47. Entering verdict and judgment, one dollar. 48. Issuing execution, twenty-five cents. 49. Justification of bail or sureties to an appeal, fifty •cents 50. Affidavit except to witness or juror's ticket twenty- oents. 51. Affidavit to witness or juror's ticket, ten cents. 52. Affixing seal when necessary, twenty-five cents. 53. Transcript on appeal — as in civil cases. 54. Mailing transcript as in civil cases. CIVIL PROCEDURE. 205 CHAPTER IV. FEES OF REGISTERS OF DEEDS. $566.— Specification. The Register of Deeds shall be entitled to the following prescribed fees : 1. Registering any deed or other writing authorized to be registered or recorded by him, with certificate of probate or acknowledgment and private examination of a married woman if any, if not more than one copy sheet,- one dollar. 2. For every copy sheet more than one, three cents. 3. For a copy of any record or paper in his office ; per copy sheet, three cents. 4. For issuing each notice or order required by the county Commissioners, including subpoenas for witnesses; for each name, fifteen cents. 5. Recording each order of Commissioners if not over one copy sheet, twenty cents. 6. If over one copy sheet, for every one over, three cents. 7. Making out tax list, for each name on each copy required to be made, three cents. CHAPTER V. FEES OF SHERIFFS. §567.— Specification. The Sheriffs shall be entitled to the following fees for the acts herein specified : 1. Executing summons, or any other writ or notice, simply by delivering a copy to the party or his attorney, sixty cents. 206 • THE CODE OF 2. Per mile, travelling from Court House of his county to place of service, if out of the county town, and where imme- diate service is not required, five cents. 3. As above, where immediate service is required, ten cents. 4. Arrest of a defendant in a civil action and taking bail, including attendance to justify, and all services connected therewith, two dollars. 5. Arrest of person indicted, including all service con- nected with the taking and justification of bail, one dollar. 6. Imprisonment of any person in a civil or criminal action, fifty cents; and release from prison, thirty cents. 7. Executing subpoena on a witness without mileage, twenty-five cents. 8. Conveying a prisoner to jail, if one mile or less, fifty cents. 9. If over one mile, then per mile beyond the first, for prisoner, sheriff and guard, if any necessary, and approved by County Commissioners — per mile for each, ten cents. 10. Expense of guard and all other expenses of convey- ing prisoner to jail, or from one jail to another for any pur- pose, or to any place of punishment — whatever may be allowed by the Commissioners of the county in which the indictment was issued. 11. Feeding prisoners in the county jail per day — to be fixed by the Commissioners of the county. 12. Providing prisoners in county jail with suitable beds, bed clothing, other clothing and fuel, and keeping the prison and grounds cleanly — whatever shall be allowed by the Com- missioners of the county. 13. Collecting fine and costs from convict, two and a half per cent, on the amount collected. 14. Collecting executions for money in civil actions — two and a half per cent, on the amount collected. 15. Advertising a sale of property under execution, at each public place required, fifteen cents. 16. Seizing pecific property under order of a court, or Judge, or executing any other order of a court or Judge not specially provided for; to be allowed by the Judge. CIVIL PROCEDURE. 207 17. Taxing any official bond, including furnishing the blank, fifty cents. 18. The actual expense of keeping all property seized under process or order of court; to be allowed by the court. 19. A capital execution, including the burial of the body, twenty-five dollars. 20. Summoning a grand or petit jury for each man sum- moned, thirty cents. 21. Serving any writ or other process, with the aid of the county, or arresting any criminal, three dollars, and all necessary expenses incurred thereby. 22. All just fees paid to any printer for any advertisement required to be printed by the sheriff. •• 23. Bringing up a prisoner upon a habeas corpus to testify or answer to any court or before a Judge, one dollar, and all necessary expenses. CHAPTER ,VI. FEES OF CORONERS. §568t— Specification. Coroners shall be entitled to fees as follows: 1. Coroners shall receive the same fees as are or shall be allowed sheriffs in similar cases. 2. For holding an inquest over^dead body, inclitding the summoning the jury and return in glkfe verdict — if finished in one day, ten dollars. 3. For every additional day occupied in the investigation of the case, five dollars. 4. For summoning each witness on inquest, fifteen cents. 5. For burying a pauper over whom an inquest has been held, to be paid by the county. 6. The fees in cases numbered one, two, and three shall be paid by the county if the deceased be a pauper, otherwise by his personal representatives. 208 THE CODE OF CHAPTER VII. FEES OF JUSTICES OF THE PEACE. §369.— Specification. Justices of the Peace shall be entitled to receive the fol- lowing fees: For attachment or transcript of a judgment, twenty-five cents. For summons, fifteen cents. For adjournment or continuance, ten cents. For subpoena or order for witnesses including all the names inserted therein, twenty-five cents. For filing every paper^necessary to be filed, five cents. For trial of an^issue, fifty cents. For entering judgment, twenty -five cents. For taking affidavit, bonder undertaking, five cents. For drawing or taking affidavit, bond or undertaking, per copy sheet, ten cents. For receiving and entering verdict of jury, twenty-five cents. For execution, twenty-five cents. For renewal of execution, ten cents. For making a return to an appeal, one dollar. For order of an arrest in a civil action, twenty-five cents. For warrant for apprehension of any person charged with crime, or with being the father of a bastard, fifty cents. For entering judgment for a contempt, fifty-cents. For execution of such judgment, twenty-five cents. For warrant of commitment for any cause, twenty-five cents. For order for a commission to take testimony, fifty cents. For taking deposisions on an order or commission issued by some court, per copy sheet, ten cents. For making necessary return and certificate thereto, fifty cents. CIVIL PROCEDURE. 209 In civil actions where the sum recovered before the Justice exceeds one hundred dollars, the above fees shall be increased fifty per cent. CHAPTER VIII. FEES OF CONSTABLES. £570. — Like those of sheriff. The fees of constables shall be the same as those for sheriff, for the like services. CHAPTER IX. FEES OF JURORS. §571. — Pay and mileage. 1. Jurors to the Superior Courts, per day, what shall be allowed by the County Commissioners of the County, not exceeding two dollars and fifty cents. 2. Per mile of travel coming to, and returning from court, five cents. 3. The same pay and mileage shall be allowed to special jurors and the same pay, without mileage, to tales jurors. CHAPTER X. FEES AND SALARIES OF CLERKS OF THE SUPREME COURT. §572. — To remain as heretofore. The salary and fees of the Clerk of the Supreme Court shall be as provided by section twenty-five, chapter one hundred and two, of the Revised Code of this State. 14 210 THE CODE OF TITLE XXII. OF THE PRINTING OF THE CODE OF CIVIL PROCEDURE. §573. — Code as printed under supervision of Commissioners, evidence of the law. The Cornmississiouers appointed, " to prepare a Code of Practice and Procedure in the different courts of this State," shall cause to be printed under their supervision, four thousand copies of this, act, entitled " The Code of Civil Procedure," including the Act concerning the jurisdiction of Justices of the Peace; the Act concerning the powers and duties of Clerks of the Superior Courts as Judges of Pro- bate, and and the Act fixing the fees of the clerk, sheriff and other public officers, which are parts of said Code, and the copies thus printed, shall be received as evidence of the law before all tribunals, and in all places, in the same manner, and with the same effect as the original in the office of the Secretary of State. §574. — Copies, how distributed. The said copies shall be distributed by the Secretary of State, as follows : 1. To the library of the Congress of the United States; five copies. 2. To each of the several State and territories; three. 3. To the library of the University of North Carolina; three. 4. To the Governor and the members of his council, for the use of their respective offices; each two copies. 5. To each member of the General Assembly, to each Justice of the Supreme Court, to each Judge of the Superior Court, to each Clerk of the Superior Court; one copy. 6. To each Commissioner of the Code; five copies. 7. To each Justice of the Peace ; one copy. 8. Three hundred shall be exposed for sale, at a price not exceeding' cost,' to be fixed by the Secretary of State, for the .benefit of the State. CIVIL PROCEDURE. 211 9. The residue, and the copies which shall remain unsold at the end of two years, shall be deposited in the library of t he State. TITLE XXIII. RATIFICATION OF STATUTES COMPOSING THIS CODE. $575.— Date of Ratification. The various Statutes of which the Code of Civil Procedure is composed, take effect from the date of ratification, as follows : I. — The first part of the Code of Civil Procedure embrac- ing Titles I, III, IV, V, VI, VII, and the greater part of Title VIII, of this Code, was ratified on the eighteenth day of August, A. D., 1868 ■ ' II. — An Act entitled, " An Act concerning the powers and duties of Clerks of the Superior Court," constituting Title II, and Chapter V, of Title VIII, N of the Code of Civil Procedure, was ratified on the fourteenth day of August, A. D., 1868. III. — The second part of the Code of Civil Procedure embracing Titles IX to XVIII inclusive and Title XXII, was ratified on the twenty-fourth clay of August, A. D., 1868. IV. — An Act entitled, "An Act concerning the powers and duties of Clerks of the Superior Courts, as Judges ot Probate," constituting Title XIX, of the Code of Civil Pro- cedure, was ratified on the nineteenth day of August, A. D., 1868. V. — An Act in relation to the courts of Justices of the Peace, being Title XX, of the Code of Civil Procedure, was ratified on the twenty-fourth day of August, A. D., 1868. VI. — An Act in relation to the fees of certain officers, being Title XXI, of the Code of Civil Procedure, was ratified on the twenty-fourth day of August, A. D., 1868. Ordinance of the Convention. AN ORDINANCE OF THE CONVENTION OF 1865 AND 1866, ENTITLED "AN ORDINANCE RESPECTING THE JURISDICTION OF THE COURTS OF THIS STATE," RATIFIED JUNE 23, 1866, AMENDED ANDRE-RATIFIED BY THE CONVENTION OF 1868, MARCH 14, 1868. [Given as Amended.] [Sections one and two are part of the amendments of 1808.] Section 1. Be it ordained by the people of North Carolina in Convention assembled, That sections one and two of the Ordinance of the Convention adopted June 23d, 1866, en- titled " An Ordinance to change the jurisdiction of the courts and the rules of pleading therein," be and are hereby, repealed. Sec. 2. Be it further ordained, That section three of the above entitled ordinance be amended to read as follows : Sec. 3. That all actions of debt, covenant, assumpsit and account now pending in the Superior Courts shall be con- tinued to Spring Term, 1869, and that the several Superior Courts at the Spring Term thereof only, unless otherwise ^erein provided, shall have exclusive original jurisdiction of all such causes of action except where jurisdiction has been or shall be given to a Justice of the Peace by the Constitution or laws of North Carolina. Should the defen- dant at the Spring Term, 1869, on writs which shall be returned to that Term or in any suit, for the above causes of action then pending in the Superior Court, pay or confess j udgment to the plaintiff for one-tenth of the debt, and demand principal and interest and all costs to that time, he shall be allowed until next Spring Term to plead. At the said Spring Term should the defendant pay to the plaintiff 214 ORDINANCE. or confess judgment for one-fifth of the residue of the said debt or demand and cost, he shall be allowed until the suc- ceeding Spring Term to plead. At the said Spring Term should- the defendant pay to the plaintiff or confess judg- ment for one-half of the residue of the debt or demand, he shall be allowed until the succeeding Spring Term to plead. At the said Spring Term the plaintiff shall have judgment for the residue of his debt or demand: Provided however,. That the plaintiff, if required, shall file his debt or demand in writing, and if the defendant shall make oath that the whole or any part thereof is not justly due, or that he has a counter demand, all of which shall be particularly set forth by affidavit, then the defendant shall only pay the install- ment required of what he admits to be due, and the court shall order a jury at the same or some subsequent term to try the matters in dispute between the parties, and at the next Spring Term the defendant shall be allowed time to plead only upon paying or confessing judgment for one-fifth of the residue of the admitted amount, and whatever the jury finds him indebted over and above the same : Provided further, That should the defendant fail to pay or confess judgment for the first or any subsequent installment, then and in that case the plaintiff shall be entitled to proceed to judgment and execution for such installment, unless the defendant shall put in pleas, in which case the suit shall proceed according to the course of the court in 1860 : Pro- vided further. That by consent of the plaintiff the defen- dant at any term of the court may confess judgment for a stipulated sum in full and final discharge of all further demand or liability upon such claim. [Sections three to eight inclusive are of the original Ordinance un- amended.] Sec. 3. Be it further ordained, That all writs in actions of debt, convenant, assumpsit or account, issued to Fall Term of the Superior Courts, shall be returned by the Sheriffs to Spring Term, 1867, and all actions of debt, convenant, assumpsit or account, now pending in the Superior Courts, shall be continued to Spring Term, and if the defendant has ORDINANCE. 215 entered his plea, he shall be allowed to withdraw the same, and take the benefits of section three, of this ordinance. Sec. 4: Be it further ordained, That dormant judgments shall only be revived by actions of debts, and every scire facias to revive a judgment shall be dismissed on motion : Provided, That those now issued shall be dismissed at the cost of the debtor. Sec. 5. Beit further ordained, That the Clerks of the several County Courts shall transfer all actions of debt, convenant, assumpsit or account, now pending in their respective Courts, to the Spring Term, 1867, of the Superior Courts, and the said Spring Term shall be deemed the return term thereof, and the said actions shall stand as if originally insti- tuted in that Court. Sec 6. Be it further ordained, That the Clerks of the several County Courts, if requested to do so by the plaintiffs, sixty days before the Spring Term, j[18G7, of the Superior Courts, shall transmit to said Spring Terms certified copies of the judgments in actions of debt, convenant, assumpsit or account entered on the dockets of their Courts, together with the writs of fieri facias or venditioni exponas issued thereon, and shall issue notices thereof to the defendants, which notices shall be served at least thirty days before said Superior Courts. At the Spring Terms aforesaid, the Courts shall, on motion, order the said judgments to be entered on the minute dockets: Provided, The same were not dormant when transmitted from the County Courts; and on 8uch entries being made, the said judgments shall be taken and held to be judgments of the Superior Courts and writs of fieri facias and venditioni exponas may issue, as provided in section tenth of this Ordinance, following the writs trans- mitted from the County Courts and preserving the liens, as if issued by the same Court. Sec. 7. Be it further ordained, That the Sheriff in each county shall return all writs of fieri facias and venditioni exponas issued from the County Court on judgments in actions of debt, convenant, assumpsit or account to the nest 216 ORDINANCE. term ol said Court, without sale ; and shall return all writs of fi. fa. or venditioni exponas issued on similar judgments from the Superior Court or decrees of the Court of Equity on money demands to Spring Term, 1867, without sale. Sec. 8. Be it further ordained, That no writs of fi. fa. or venditioni exponas on judgments in actions of debt, convers- ant, assumpsit or account shall hereafter issue from the County Courts, nor shall said writs on such judgments issue from ov to the Fall Terms of the Superior Courts, except in cases where defendant fails to comply with the provisions of this Ordinance, and it is directed that plaintiff may pro- ceed according to the regular course of the Court. [Sections nine and ten are part of the amending- Ordinance of 1868.] Sec. 9. Be it further ordained, that section ten of the alove recited act shall be amended to read as follotcs : That execu- tions on judgements in actions of debt", assumpsit, covenant or account, or decrees for money demands in equity, which have been, or shall be issued on judgments or decrees here- tofore obtained, shall be levied on the property of the defen- dant and returned without sale: Provided, such return shall not prejudice any lien the plaintiff may acquire or then have by virtue of said fi. fa. or venditioni exponas. At Spring Term, 1869, execution on all such judgments or decrees shall issue for only one-tenth of the amount then due; at Spring Term, 1870, for one-fifth of the residue; at Spring Term, 1871, for one-half of the residue, and at Spring Term, 1872, for the balance of the debt; and no execution shall issue from the fall Term on any such judgment or decree except by consent of the defendant. That no mortgagee or trustee shall expose to sale the property conveyed in such mortgage or trust deed, without consent of the grantor, before first of March, 1869. Should the mortgagor or trustor at that time pay one-tenth of the debts mentioned, the sale shall be postponed to first of March, 1870; at that time should the mortgagor or trustor pay one-fifth of the residue, the sale shall be postponed to* the first of March, 1871; at that time, should the trustor or mortgagor pay one-half of the residue, ORDINANCE. 217 the sale shall be postponed to first of March, 1872, and at that time the trustee or mortgagee shall sell the property or so much of it as will realize the balance of the debts; Pro- vided, however, That should the trustor or mortgagor fail to pay the first or any subsequent installment, then, and in that case, the trustee or mortgagee shall sell at sis months credit so much of the property conveyed as will realize such installment. Sec. 10. Be it farther ordained, that section eleven of the above entitled act he amended to read asfoUoivs : That no war- rant before Justices of the Peace shall issue or be returna- ble until January 1st, I860. Should the defendant upon such return pay to the plaintiff, or to the collecting officer, for his use, or confess judgment before the magistrate for one-tenth of the debt and demand, (principal and interest) he shall be allowed twelve months to plead; at the expira- tion of that time, should the defendant pay to the plaintiff or confess judgment for one-fifth of the residue of the said debt or demand, he shall be allowed twelve months more to plead; at the expiration of that time should the defendant pay to the plaintiff or confess judgment for one-half of the residue of said debt or demand, he shall be allowed twelve months more to plead; at the expiration of that time the plaintiff shall have judgment for the residue of his debt or demand: Provided however, That the plaintiff, if required, shall file his claim in writing, and if the defendant shall make oath that the whole or any part thereof is not justly due, or that he lias a counter demand, all of which he shall particularly set forth by affidavit, then the defendant shall only pay the installment required heretofore recovered upon any such bond, promissory note, bill of exchange or other instruments of writing or parol promise as is hereinbefore mentioned. [Section's eleven to twenty-four inclusive are from the original Ordinance unamended.] Sec 1 1. Be it farther ordained, That all writs of scire facias to subject bail, issued from the Superior or County Courts upon judgments in actions of debt, convenant, assumpsit or 218 ORDINANCE. account, shall be returned to Spring (.Term, 1S67, of the- Superior Courts, and should the tenth, fifth, and half of the judgments be paid from Spring Term to Spring Term, time to plead shall be allowed, according^to section three of this Ordinance. Sec. 12. Be it further ordained, That this Ordinance shall not apply to judgments for costs only. Sec 13. Be it further ordained, That this Ordinance shall not apply to the remedies for the collection of town, county or State Revenue. Sec. 14. Be it further ordained, That this Ordinance shall not apply to proceedings by attachment, unless the defen- dant replevy and give bail, and then and in that case the procedings shall be subject to the provisions of this Ordi- nance as if commenced by writ or warrant. Sec 15. Be it further ordained, That where the action is by or on behalf of infants, still minors at the return term, and the interest exceeds one-tenth, the first payment shall be increased to the amount of interest due, not to exceed one-fifth of the whole debt. Sec 16. Be it further ordained, That the provisions of this Ordinance shall not be construed to extend to any debts or demands contracted, or penalties incurred, since the first day of May, A. D., 1865, or which may be hereafter contracted or incurred, but that the remedies for the recovery of the same shall be in all respects similar to the remedies for the recovery of debts which were in force in the year 1860. Sec 1.7. Be it further ordained, That any creditor, attempted to be defrauded as set forth in section one, chapter fifty, Revised Code, may, without obtaining judgment at law, file his bill in Equity, and said Court is hereby author- ized and empowered to direct proper issues to be made up and tried, and to make such orders and decrees as to right and justice may appertain ; and said proceeding shall not affect the creditor's right to proceed at the same time at law; and any surety, before paying the debt of his principal thus attempting to defraud his creditors, may institute proceed- ings in Equity, in like manner, to the end that he may obtain relief. ORDINANCE. 219 Sec 18. Be it farther ordained, That every executor, or administrator, shall file on oath, at the termination of two years from the time of his qualification a full statement of his receipts and disbursements and the condition of the assest, particularly setting all money collected and how disbursed, and on motion the court may allow further time, to settle the estate from year to year not exceeding three years; Provided, That on motion to extend the time a sup- plemental statement shall be filed: Provided, That any creditor or next of kin may oppose said motion, and if the statement is not full and fair, file interrogatories which the executor, or administrator, shall answer before his motion for time is allowed: Provided further, That the court may also extend the- time for pleading: Provided farther, That all executors, or administrators, who have heretofore qualified shall be allowed until the County Court, next after the first day of January 1867, to file their statement. Sec 19. Be it farther enacted, That all Acts and parts of Acts, suspending the operation of the Statutes of Limitation in the Revised Code', are hereby repealed except as herein provided: Provided, That the time lapsed since the first day of September, one thousand eight hundred and sixty- one, barring actions or suits, or presuming the satisfaction or abandonment of rights shall not be counted. Provided farther, That nothing contained in this Ordinance or in the Acts hereby repealed shall be so construed as to prevent judgment from becoming dormant. Sec 20. Be it further enacted, That any sheriff, clerk or other officer, failing to execute any of the provisions of this Ordinance when the execution thereof devolves on him, or issuing, receiving, or executing, any process whatever, con- trary to the provisions of this Ordinance, shall be subject to a penalty of five hundred dollars to be recovered by a rule of court as penalties and fines were recovered in 18G0. Sec 21. Be it further ordained, That in all actions brought by any bank or other corporation, having exercised bank- ing privileges, or by an assignee or indorsee, or officer of 220 ORDINANCE. said county or corporation it shall and may be- lawful for the defendant to set-off by plea, or on trial any note or cer- tificate of deposit issued by said bank or its branches, or other corporation, whether the same has been presented for pay- ment or not, any law or usage to the contrary notwithstand- ing; but said plea of set off, or set off on trial, shall not avail to carry costs against the plaintiff, unless there has been a tender of such payment before suit brought: Pro- vided, That should the defendant require the debt to be scaled according to the scale of depreciation of Confederate currency, then, and in that case, the said notes or certificates of deposit shall not be a set off in any manner. Sec. 22. Be it farther ordained, That " An Act to change the jurisdiction of the Courts, and the rules of pleading," ratified the 11th day of September, 18G1; an Act entitled "An Act to restore the Courts and for other purposes," ratified the 14th December, 1863; also, an Act entitled "An Act to change the jurisdiction of the Courts and the rules of pleading therein," ratified the 10th of March, A. D., 1866, and all laws in conflict with this Ordinance, be and the same are hereby repealed. Sec 23. Be it further ordained, That the General Assembly shall have no power to repeal, alter or modify this ordinance until the third Monday of November, 1868, and this Ordi- nance shall take effect and be in force from after its ratifi- cation. (Ratification of original Ordinance.) Adopted by the Convention, June 23d, 1866. EDWIN G. READE, President J as. II. Moore, Secretary. R. C. Badger, Assistant Secretary. (Ratification of amended Ordinance.) Sec. 24 Be it further ordained, That this Ordinance shall be in force from and after its ratification. Ratified this 14th day of March, A. D., 1868. CALVIN J. COWLES, President T. A. Byrnes, Secretary. APPENDIX. Note 1. — Title I, §8, sub-division three, page 3. This section, including subdivision three, passed both Houses of the General Assembly, but by some error, this entire sub- division was omitted in the bill as finally enrolled and de- posited in the office of the Secretary of State. This error was not discovered in time to permit its correction. A large class of actions is thus left specially unprovided for, though it will be seen by consulting section 405, page 149, that it is there provided that summons in all new actions coming under the provisions of the Act of March 14th, 1868, shall be returnable in accordance with its provisions. It is, there- fore, clearly shown that it was no part of the intention of the General Assembly to repeal the provisions of this Act. It was not the intention of the Commissioners to present to the Assembly, any provision interfering with any rightful delay to which the debtor might -be entitled. Nor is it believed that a just construction of this section, even in its present mutilated form, will so operate. As it was not pos- sible, consistently with the constitutional provisions, to make any provisions whereby new actions arising from causes of action precedent to the ratification of the Code of Procedure, might be governed by former laws, in respect to form, sub- division four was so framed as to bring them under the old practice so far as possible, or "as near as may be," which the Commissioners believe to include everything except form and equitable defences, which must of necessity, now be allowed, to such actions, as otherwise the respondent would be without remedy, the Court of Equity being abolished. Note 2.— Title XX, §503, page 184, Rule IV. No record can be found in either House of the Geueral Assembly, of any amendment by which this Rule was stricken out. It is believed to have passed botli Houses and to have been omit- 222 APPENDIX. ted in engrossment by error. If not, it is a confident belief of the Commissioners that a provision so important will not be allowed to remain unenacted beyond an early day of the next session. The mere neglect of the defendant to answer, by no means gives the plaintiff the right to recover, and no rule can be more important than that which requires the plaintiff to prove his right before he recover judgment. INDEX. ACTION. — Civil constitutional definition of, Criminal constitutional definition of, Definition of, by aliens, to be by party in interest, by grantee of land, held adversely, by executor, trustee &c, by or against married woman, by administrator, for partition of real property, for foreclosure of mortgage, &c, what causes of, joined in same complaint, to recover notes, &c, submitting a controversy without, for discovery abolished, to be dismissed, when in Justice's Courts, another, may be brought, ;o what Code of Procedure applicable, commenced before approval of Constitution, pending at approval of Constitution, pending in County Courts, pending in Superior Courts, pending in Equity Courts, commenced after ratification of Code, commenced prior to ratification of Code, included within provisions of Ordinance of March 14, 1868, not included withing provisions of Ordinance of March 14, 1868, civil, forms of abolished, at lowers of. as to receivers, powers of, as to deposits of money, other issues to be tried by the Judge, or, COLLECTION, letters of, when to issue and to whom COLLECTOR, qualifications of authority for authority when to cease, accounting by, failure to account, final accounts, CHOSE IN ACTION, assignment of, CO-PLAINTIFF, examination of, co-defendant, examination of, CORPORATIONS, judgment on forfeiture against, restraining as and appointment of receiver, copy of judgment roll against, CORONERS, duties of fees of, COURT, leave of, to issue judgment on execution, trial by, judgment how to be given, of Justices of the Peace, of Justices of the Peace, manner of commencing action, CREDITOR, any debtor may pay execution against his CRIMINAL ACTION— Constitutional definition of calender, first disposed of CUMULATIVE DISABILITIES, effect of DAMAGES — security upon injunction, rates of where damages recoverable, defendant may offer to liquidate conditionally, how recovered for assumption of office, DEATH, cause of action survives, action shall not abate, DEBTOR, may pay execution against his creditors, DEBTORS, joint and several, DECISION on motion, DEFENDANT, who, to be whom, may demand judgment of nonsuit, PAGE. SEC. 25 64 27 69 42 108 61 168 78 215 78 215 83 225 171 463 171 464 171 •465 171 466 175 176 479 177 481 21 55 129 310 142 376 142 378 142 379 134 354 207 568 95 256 • 88 211 181 494 181 100 265 1 pre. 84 229 14 28 68 192 92 250 125 320 141 373 18 43 24 64 100 265 34 87 131 345 10 13 24 61 30 78 INDEX. 233 DEFENDANT, a foreign corporation, form of summons, a resident of the State, but absconding, not a resident, but has property, allowed to defend before and after judgment, to demur on answer, who may demur, answer of, what to contain, may set forth several defences, may demur to one or more causes of action, when plaintiff ignorant of the name of, copy of order of arrest to be delivered to, to be discharged on bail or deposit, surrender of, surrender of, when entitled to re-delivery of property, sureties, justification of, interest of, certificate of to be furnished undertaking on the part of, discharge of attachment, when cost allowed to may offer to liquidate damages conditionally, DEFENCE, sham and irrelevant, DEFINITION and divisions, of action, of special proceeding, of civil action, of criminal action, of the term " court, " of an order. of a motion, of " real property, " of " personal property, " of "property," DEMURRER, must specify grounds of objection, to answer reply, to reply, judgment on frivolous, answer and reply, DIVISION of remedies, actions, DISABILITIES, when persons under may sue for real property, persons who are under, cumulative, effect of, must exist when, co-existant, DISOBEDIENCE of order, how punished, •AGE. EEC. 33 83 33 83 33 83 34 85 38 94 39 95 40 100 40 102 41 103 50 134 57 154 58 156 58 158 59 159 64 181 65 182 73 208 76 213 106 277 125 320 41 104 1 2 2 2 3 2 6 2 5 3 9 131 344 131 845 145 388 145 389 145 390 39 96 41 105 42 107 81 268 1 1 2 3 14 27 14 27 14 28 20 48 20 49 104 273 234 INDEX. DIVORCE, form of summons for, DOCKET,— Judge to keep one, to be kept to Superior Court Clerk, judgment, of issues of fact, of criminal action, DOCKETING Justice's judgment, DORMANT judgruents.how received, DUTY of Probate Judge relating to apprentices, DUTIES of masters, EFFECT of acceptance or refusal of offer, of report, review, ENACTING clause, ENTRY of judgment relating to letters-patent, ERRORS or defects not substantial to be disregarded, EXAMINATION of debtors of judgment debtor, of those having property belonging to judgment debtor, of co-plaintiff and co-defendant, of parties in action, also allowed before trial, EXCEPTIONS, how and when taken, EXECUTOR'S sureties, bond, &c, EXECUTOR, an action against, not incompetent as witness, who disqualified to serve aa, may renounce, when deemed to have renounced, under disqualifications of age or absence, accounting by, failure to account, final accounts, on what, and from what time a lien, stay of security, EXECUTION of the judgment in civil action, not suspended when appeal taken, levied on personal property, satisfied, not levied at all, or on real property, not docketed, within three years, after three years to be issued only by leave of court, 33 83 43 114 53 144 54 144 54 144 54 144 183 503. 149 404 178 461 178 486 125 330 90 246 1 143 380 51 135 101 266 101 266 129 340 126 127 334 88 242 16 34 15 33 162 436 166 440 167 459 167 451 167 452. 175 176 479 177 481 187 505 95 114 300 149 407 149 406 150 408. 150 409 95 255 95 256 INDEX. 235 EXECUTION different kinds of, to what counties may be issued, against a married woman, against the person, in what cases, form of the, to be returnable in sixty days, existing laws relating to continued, proceedings supplemental to the, what property may be applied to the, of the judgment, how stayed, EXISTING JUDGMENTS, not dormant, may be transferred, EXISTING SUITS, actions not to abate, actions not to abate, order for discovery of property, examination of judgment debtor, FACT— issues of, issues of both fact and law, FEE-BILL of attorney abolished, FEES, action for, of clerks, sheriffs, &c, of referees, general provisions respecting, of officers, by whom and how payable, on returns to Secretary of State, officers to make returns of, half, if convict insolvent, * of officerg, how received, of Solicitors, when to receive salary, solicitors, for what, of Clerks of Superior Court, what, and for what in civil cases, what and for what in criminal actions, of Register of Deeds, of Sheriffs, of Coroners, of Justices of the Peace, of Constables, of Jurors, pay and mileage, and salaries of Clerks of Supreme Court, FEIGNED ISSUES abolished, FORMS of actions and suits abolished, FORFEITURE— actions for, GOODS or chattels, action for, 16 34 PAGE. SEC. 96 258 96 259 96 259 97 260 97 261 98 262 98 263 99 102 269 195 541 148 403 24 64 93 254 99 264 99 264 82 221 82 222 105 275 16 34 110 284 110 285 198 198 555 199 557 199 558 200 561 200 562 200 200 568 201 564 201 201 565 204 565 205 566 205 567 207 568 208 569 209 570 209 571 209 572 1 Pre. 1 Pre. 16 35 •236 INDEX. GUARDIAN— Infant to appear by or infant-plaintiff to give security, ad litem , account abilities of, not to receive property until security given, and ward, power over orphans' estate to appoint, accounting by, failnre to account, final accounts of, GUARDIANSHIP, proceedings on application for, HUSBAND and wife— Witnesses, PAGE. SEC. 22 59 22 59 22 59 135 135 355 173 173 472 175 176 479 177 481 174 474 129 341 INSANE person, when may sue for real property, INFANT to appear by guardian, INFANT-plaintiffor guardian must give security, INTEREST in corporations, liable to attachment, certificate of defendants, to be furnished, not to execute, a witness, INSPECTION and copy of books, and copy of papers and documents, INDENTURE, binding to be by, remedy thereon, IMPRISONMENT on criminaal charge, when such persons may sue for real property, false, action for, INJURY to any incorporeal hereditament, an action for, INJUNCTION, time of stay by, by order, in what cases, at what time it may be granted, after answer, security upon, older to show cause, security upon, to suspend business of corporation, motion to vacate or modify, INSTRUCTIONS, Judge to put in writing, prayers for, to be put in writing by counsel, ISSUES— Feigned— abolished, and mode of trial, the different kinds, of law ■of fact, 14 27 22 58 59 129 342 126 331 126 331 177 482 177 483 14 27 17 35 15 33 19 46 66 188 67 189 67 190 67 191 68 192 68 193 68 194 68 195 87 238 87 239 1 Pre. 82 82 219 82 220 82 220 INDEX. 237 ISSUES of both law and fact, law tried first, examination of, trial defined, how tried, other, to be tried by Court or Judge, of fact, how to be tried, order of disposing of in civil action, of fact and matters of law, all referable by consent, JOINDER of action, JOINT-TEN A.NTS, when not barred, JUDGE — when meant by word " Court," issue of law sent to, party to be heard before, duty of, an appeal, to keep a docket, other issues to be trid by court or, trial postponed by, in term, when, to be furnished with copy-pleadings, &c, may direct special findings, when, minutes of, motion for new trial on, to explain law, but express no opionion on facts, to put instructions in writing, reference by, of Superior Court not present, court to adjourn, JUDGES of Supreme Court shall make rules of practice, of Superior Court to suggest rules, of Superior Court to issue writs of habeas corpus, of Probate, of Probate, disqualifications to act, of Probate, waive of disqualification, of Probate, removal of proceedings, of Probate, enumeration of powers, of Probate, not to act as attorney, of Probate, seals used, of Probate to keep files, of Probate to keep records, . of Pncbate, books furnished by Secretary of State, JUDGMENT, on decree of United States Court, of Justices of the Peace, reversed, defence after, motion for, on answer, on motion of fact final, and trial in civil action, PAGE. SEC 82 222* 82 223 82 224 83 225 83 226 84 229 179 490 88 244 47 126 20 52 3 9 43 111 43 112 43 113 43 114 83 225 84 228 85 231 85 233 86 236 87 237 87 238 104 272 149 396 146 396 146 395 147 399 153 417 154 419 154 420 155 421 155 422 156 424 156 425 156 426 156 427 157 428 15 81 15 32 19 45 34 8-5 41 - 106 44 115 79 238 INDEX. JUDGMENT, arpon failure to answer, defined, on failure of defendant to answer, on excess of counter claim, on frivolous demurrer, answer or reply, manner of extending, may be for or against any of the parties, may grant defendant affirmative relief, against married women, in actions for recovery of personal property, debtor, examination of, debtor, proceeding on denial of indebtedness, roll, clerk to make copy and send to Supreme Court Clerk, for money, security to stay execution, to deliver documents or personal property, immediate orders affecting the, on appeal, in controversy without action, how enforced or appealed from, debtor dying — his representative may be summoned, may be confessed for debts due, confession of without action, and execution, in action for usurping office, of forfeiture and eviction to be given, when, execution of, how stayed, roll, JUDGMENTS, how to be pleaded, how satisfied, on judgment book to be entered by clerk, rendered in other courts, entered by clerk, indexed by clerk, how to be docketed, how enforced, dormant, how reviewed, not dormant, when, JURISDICTION, civil of Superior Courts, court to have acquired, of Supreme Court, of Judges of Probate, and manner of proceeding in Justice's Courts when sum demanded exceeds two hundred dollars, over estates of deceased persons, when Probate Judge has, over the estate, Judge first acquiring to have exclusive, PAGE. SEC. 79 79 216 80 217 80 217 81 218 88 240 91 248 . 91 248 91 248 92 251 99 264 103 271 115 302 115 304 116 305 119 318 119 314 120 316 120 317 121 318 123 325 123 123 327 141 370 144 385 195 541 93 253 44 115 46 121 93 252 93 252 93 252 93 254 93 257 149 404 151 411 3 9 36 90 151 413 153 418 182 498 161 161 433 161 434 INDEX. 239 JURY may render special original verdict, when, to assess defendant's damages in certain cases, trial by, how waived, trials, in Courts of Justices of the Peace, lists furnished to each Justice, box, Justice to keep a tried by, demanded, or waived when, drawn, and trial postponed, summoning of the, for the trial of the cause, sworn and empaneled, verdict &c. less than sis may be a, when, fees, deposit of adjournment after the return of the JURORS, names of, to be deposited in jury box. challenge of, names of, returned to jury box or destroyed, tales, may be summoned, not compelled to serve as, out of township, serving on trial, &c. fees of JUSTICES of the Peace.— Courts of of the Peace, manner of commencing action in Courts of of the Peace, docketing judgments of courts, rules of proceedings in, judgments removed to another county, how, courts, witnesses, penalties, &c. of the Peace, general provisions respecting, of the Peace within what time to qualify, of the Peace removed from township six months to forfeit office, of the Peace resignation of, of the Peace may issue process and try cause elsewhere of the Peace may accept office under United States, of the Peace punishment of infamous crimes, of the Peace filing docket with clerk, of the Peace delivery of unfiled docket to successor, of the Peace fees of, LANDLORD and tenant, relation of, when deemed to possession, LAWS, issues of, issues of, to be tried first, Judge to explain, but express no opinion on fact, of other States and governments, how proved, what repealed and unrepealed, repealed, PAGE. SEC. 85 233 86 233 .87 i i 238 190 190 517 190 518 191 520 191 521 191 522 191 523 192 527 192 529 193 532 193 533 191 519 191 524 192 525 192 526 192 530 192 531 209 571 181 181 495 183 508 184 ' 504 188 509 188 510 196 196 541 197 547 197 548 197 549 197 550 197 551 197 552 197 552 208 569 13 26 13 26 82 220 82 222 87 237 136 860 180 493 181 494 240 INDEX. LETTERS testamentary, of administration with will annexed, of administration, to be granted when and to whom, of collection, of administration, to whom granted, of revocation on proof of will, &c, of rovocation on ground of disqualification or default, how issued and tested, of appointment of guardian, LIBEL, action for, and slander, how stated in complaint, and slander, actions in such cases, LIMITATION of actions, period of, pleaded by answer, as regards actions for real property, as regards actions for real property, as regards actions for real property, not applicable to Railroads, Canal Companies, &c, LIMITATIONS, Chapter 65, Revised Code repealed, to what cases the provisions of the Code extends, LIS PENDENS, notice of, LUNACY, inquisition of, MAIL, service by, service by, sheriffs and coroners may return process by, MARRIED WOMAN, when may sue for real property, actions by or against, husband must be joined in action, may sue alone concerning separate property. may sue alone in action against husband, need not sue by friend, or guardian, judgment against, execution against. MASTER and apprentice, duties of, misconduct of, MISTAKE, relief in case of, MONEY, bank notes circulated as, MOTION, definition of, decision on, MOTIONS, how and when made, MORTGAGE, action for foreclosure, PAGE. SBC. 166 168 168 453 171 169 45 6 173 469 173 470 173 471 175 475 17 35 47 124 47 125 10 16 11 17 11 17 11 18 11 19 12 20 14 29 10 15 10 16 36 90 174 473 133 350 134 351 134 354 14 27 22 55 22 56 22 56 22 56 91 248 96 259 177 178 486 179 489 50 133 20 53 131 345 131 345 131 345 34 86 INDEX. 241 NON-SUIT, defendant may demand judgment of, NOTICE of no personal claim, on motion, and filing and service of papers, how served, NUISANCE and waste, actions for, writ of abolished, by writ of, remedy for injuries heretofore remediable, OATH, make return of when, oaths, &c, OCCUPATION, when presumed to be under legal title, OFFER of compromise, of defendant to compromise the whole or the part of the action, OFFICIAL BOND, an action upon, OFFICIAL BOND, OFFICE, Superior Court Clerk, where to be, Superior Court Clerk, when to be open, OFFICER, trespass of, to require no fee of person sued as pauper, entitled to fee in advance, ORDINANCE of 14th March, 1868, effected, PARTY, to be heard before Judge, summoned may answer and defend, may examine his adversary as a witness, how compelled to attend, PARTIES, how designated, to civil action, to be joined, &c. to bills and notes, all or any included in same action, compelling to testify, to actions in special pleadings, cau witness, PARTNERS, joint and several debtors, PAPERS, official, to be received by the Clerk of the Superior Court, in each action to be kept separate and filed together, lost or withheld, how supplied, PAUPER, power to sue as, how obtained, PERSON, no, arrested except as prescribed, sued a3 pauper not to pay costs, within the age of twenty-one years, when may sue, imprisoned on criminal charge, when may sue, insane, when may sue, who is a feme cwerte, when may sue, PERSONS, having title must sue, when, 16 PAGE. BEC. 30 78 31 81 132 346 133 133 349 144 145 386 145 387 175 477 172 467 13 25 124 328 124 15 33 160 431 53 141 53 141 16 35 28 72 29 75 151 412 43 112 112 322 127 333 127 335 10 13 31 24 61 24 6;5 131 345 129 31:J 34 87 53 142 54 146 135 357 28 72 55 148 28- 72 14 27 14 27 14 27 14 27 12 20 242 INDEX. PERSONS, for whom action is brought, PERSONAL representative, action against when brought, PENALTY, action for, for offense committed on any body of water, for usurping office or franchise, PLAINTIFF, who, proviso when judgment for, reversed, under disabilities, a minor, insane, imprisoned on criminal charge, a married woman, may commence new action, to give bond, failing to file complaint within ten days, to be whom, may be non-suited, to name an attorney, ignorant of name of defendant, security of, before order of arrest, delivery of bail to, security to, the relief awarded to, PLANK ROAD, &c, not barred by limitation, PLEADINGS, general rules of, to be subscribed and verified, how verified, how construed, items of account, irrelevant and redundant matter, mistakes in and amendments, supplemental, &c, how written, POSSESSION, thirty years good against State, twenty-one years with colorable title, • valid against claimants under the State, adverse for twenty years, bars suit, adverse for twenty years, gives title, presumed when, by tenant, the possession of landlord, POWER of reierees, PRACTICE— In actions pending July 3rd, 1868, in actions pending at ratification of Code, in actions pending, founded on contract, in actions pending, not founded on contract, PRAYERS by counsel, for instructions to be put in writing PAGE. SEC. 129 3S9 15 32 16 35 26 67 142 375 10 13 12 21 18 42 18 42 18 42 18 42 18 42 19 45 28 71 30 77 23 60 30 78 31 89 50 134 57 152 59 162 64 179 92 349 14 29 44 44 116 44 117 44 119 45 11 4G 120 48 51 136 142 375 11 18 11 18 11 19 13 23 13 23 13 25 13 26 135 356 3 8 3 8 3 8 3 8 87 239 INDEX. 243 PROCEEDINGS upon judgment on issue of law, upon claim of another party to property, on denial of indebtedness, cost of, stayed when security given, miscellaneous in civil actions, stay of, PROBATE courts, jurisdiction and powers, Judges of, Judges of, jurisdiction of, of Deeds, of Deeds, how made, court, how judge may appear in, of Deeds when land lies in two or more counties, Judge of when disqualified to act, Judge of when has jurisdiction over estates, Judge of when acquiring jurisdiction to have it exclusive, of wills, how wills admitted to, how far conclusive, who may apply for, who may apply when executor does not, what to show on application to, auditing by Judge of, PROOF— failure of when, PROOFS and examination in writing of witnesses, PROPERTY, personal, claim and delivery of, personal, delivery of, requisition to sheriff to take and deliver, how taken, when concealed, how kept, claim of, by third person, attachments on, foreign corporations, non-residents, absconding or concealed defendants, perishable, proceedings in case of, incapable of manual delivery, personal, judgment in action for recovery of, may be ordered to be applied to the execution, perishable may be soldj notwithstanding appeal, personal, definition of, real, definition of, personal, execution levied on, PROCEDURE, Code of Civil, printing of, PROVISO— in case of judgment for plaintiff reversed, PAGE. BEC. 89 242 103 271 103 271 104 273 117 308 120 131 345 153 153 417 153 418 157 429 157 429 156 423 160 430 160 432 161 433 161 434 161 161 435 162 438 162 439 162 440 162 441 49 130 162 457 63 63 176 63 178 65 184 66 185 66 186 69 197 69 197 69 167 73 205 73 207 92 251 102 169 118 311 145 389 144 384 149 406 210 573 12 21 244 INDEX. PROVISIONS, general, of the Revised Code applicable to actions for partition, of the Revised Code applicable to actions for waste, of the Revised Code applicable to actions in arrest and trial, of the Revised Code applicable to Attachment, respecting executors, PUBLICATION to be made of warrant of attachment, . of notices, time of, how computed, PUBLIC OFFICES, action against for trespass, RAILROADS, &c, not barred by limitations RATES of damages, where damages recoverable, RATIFICATION of this act, of Statutes composing this Code, RECEIVERS, Judge may appoint, RECORDS to be kept by Superior Court Clerk, examined by Solicitor, REFERENCE may be compulsorily ordered when, REFEREES, trial by, how chosen, who may be, fees of, powers of, REFUSAL to testify, effect of, RELIEF, action for, not otherwise provided for, in case of mistake, to be awarded to the plaintiff, RELATOR, when to be joined as plaintiff, assumption of office by, REMEDIES, provisionals in civil actions, provisional, how divided, not merged, REPLY, demurrer to answer, REPORT of referee, when allowed, REGULATIONS respecting existing suits, RESIGNATION of Justice of the Peace, REGISTER OF DEEDS, fees of RESTITUTION, RESTITUTION, RULE of construction of laws, RULES and practice inconsistent with this act abrogated, 120 bi.r, 143 382 144 384 189 511 190 516 172 70 198 136 359 16 35 14 29 92 250 25 64 211 575 102 270 53 143 54 147 89 245 89 90 247 90 247 110 384 129 337 16 34 17 37 50 132 92 249 140 368 141 370 55 78 1 1 2 7 41 105 91 247 109 282 148 197 548 205 566 119 314 196 544 145 391 146 393 INDEX. 245 SEALED INSTRUMENT, action on, against principal, SECRETARY of State to furnish books, of State fees on returns to, SECURITY upon injunction, damages, to suspend business of corporation, on obtaining warrant, must be given on documents or personal property, when judgment is to deliver real propeity, being given, proceedings stayed, to be approved and to justify, must be given or deposit made on appeal, unless waived, to stay execution on judgment for money, SEIZURE within twenty years, when necessary, SEPARATE trials, SERVICE, when complete, proof of, proof of, by certificate of sheriff, proof of, in case of publication, affidavit of, proof of, admission of defendant, by mail, by mail, SEVEN YEARS, what actions must be brought within, SHERIFF— affidavit and order delivered to, deposit with the sheriff, when liable as bail, proceedings on judgment against, liable to bail, requisition to, to take and deliver the property, bond to, an attachment, when to return warrant with his proceedings, fees of, duties of, penalty on, for failing to return, fees of, SIX YEARS, what actions must be brought within, SPECIAL proceedings, definition of, and general verdict defined, findings with general verdict, former to control, STATE, when it will not sue for real property, thirty years possession bar to suit, twenty-one years possession nnder colorable title bar to suit, claimants under, also barred, claims against, claims against, manner of prosecuting, STATUTE, limitation of action, AGE. SEC. 15 31 54 145 199 557 68 192 C8 194 72 202 116 305 117 307 117 308. 118 310 115 303 115 304 12 22 85 230 35 88 35 89 35 89 35 89 8(5 89 134 350 135 351 15 32 57 154 61 167 61 171 62 172 62 173 63 178 76 211 77 214 110 284 134 354 199 557 205 567 15 33 2 8 85 232 86 234 11 18 11 18 11 18 11 19 152 415 152 416 16 34 24G INDEX. STATUTES, how to be pleaded, STATUTORY provisions, inconsistent, repealed, STAY by injunction, by statute, SLANDER, action for, and libel how stated in complaint, and libel actions in such cases, SOLICITOR to examine records, fees of, when to receive fees — salary, fees — for what, SUBMITTING a controversy without action, SUBSEQUENT pleadings, SUBPOENAS for witnesses, SUMMONS, by whom issued, form of, date of, what to contain, number of days to run, return of, copy of complaint to be served with, manner of service, manner of service on a corporation, manner of service on infant under 14, manner of service on defendant of unsound mind, manner of service by publication, form of, when defendant a foreign corporation, form of, when defendant a resident of the State but absent therefrom, form of, when defendant not a resident but has property, form of, when subject is real or personal property, form of, in action for divorce, manner and effect of publication, when service complete, proof of service, form of, to be accompanied by affidavit of amount due, in Justices Courts, in Justices Courts, by whom issued, service and return of, SUPERIOR COURT, meaning of term in Code, cause transferred to, by Probate Judge, Clerk, fees of, SUPERIOR COURTS, civil jurisdiction of, terms of, duration of Terms, terms of First District, PAGE. B EC 46 123 146 392 19 46 19 46 17 36 47 124 47 125 54 147 200 200 563 201 564 120 215 122 323 133 349 28 71 29 73 29 73 29. 74 29 74 29 75 30 76 32 82 32 82 32 82 32 82 32 82 33 83 33 83 33 83 33 83 33 83 33 84 35 86 35 89 121 320 122 321 181 495 181 496 181 497 3 9 106 447 201 565 4 10 4 11 4 11 1 14 INDEX. 247 SUPERIOR COURT, terms of Second District, terms of Third District, terms of Fourth District, terms of Fifth District, terms of Sixth District, terms of Seventh District, terms of Eighth District, terms of Ninth District, terms of Tenth District, terms of Eleventh District, terms of Twelfth District, SUPREME COURT, jurisdiction of, cases, how taken t", SUITS, not transferred, to abate, transferred, how proceeded with, SURETIES, exceptions to, justification of defendant's . qualifications and justifications, actions against, TENANT, possession by, possession of landlord, TESTIMONY of party may be rebutted, no' responsive to the inquiries, TIME of commencing action, of war not counted, of stay not counted, pending probate of will not counted, how computed, double when served by mail, for publication of notice, how computed, TITLE, when persons having, must sue, answer to, THREE YEARS, actions to be within, THIRTY YEARS possession good against the State, TRANSFER and appeal of issues of fact, and appeal no bond required, TRESPASS, action for limitation of of office, TRIAL, change of place of change of place of, by order of court, change of place of, by consent of parties, mode of, on issue, defined, may be postponed by clerk, when, may be postponed by Judge in term, when separate, new, on Judges' minutes, by the Court, AGE. SEC. 4 11 5- 11 11 6 11 6 11 6 11 7 11 7 11 8 11 8 11 8 11 151 413 152 414 148 148 401 64 180 65 182 65 183 16 8f 13 26 127 336 128 338 10 19 44 19 46 19 47 132 348 134 352 136 359 12 20 182 500 16 34 11 18 179 180 491 16 34 16 35 27 69 27 69 27 69 82 82 223 83 227 84 228 8£ 2:!0 S(i 236 88 248 INDEX. TRIAL, by jury, Low waived, by the court, judgment bow to be given, by referees, mode of, for felony in progress at close of term, term to be prolonged new, appeal in Justices' Courts, TWENTY-ONE TOARS possession under colorable title, ' TWENTY-ONE YEARS, possession under colorable title, years seizure within, when necessary, years adverse possession bars suit, years adverse possession give title, UNDERTAKINGS may be in one instrument or several, must be filed, where to be filed, same, to be given, VARIANCE, material in pleading, ' *3 immeterial in pleading, VERDICT, general and special defined, general and special where jury-nnay render, on special findings, former to control entry of, VOUCHERS, WARRANT of attachment, by whom granted, when granted by Justice of the Peace, in what case it may be issued, security on obtaining, to whom directed and what to require, in executing, mode of procedure, in perishable property, mode of procedure, when sheriff to return with proceedings thereon, AV1LLS, probate of. how entitled to probate, executor not incompetent as witness to, production of, compelled by process, made without State, how proved, of subject or citizen of another country, of citizen of this State proved elsewhere, WILL, of testa'tor to be observed, WITNESSES required to testify when, of party compelled to attend, husband and wife, examination of, interest not to exclude a parties to actions may, except in certain cases, mbpeenas for, penalties, &c, in Justice's Courts, ■compensations of, WOMAN married, may sue for real property, PAGE. 8E0. 88 240 88 89 .^41 90 246 147 397 192 528 11 18 11 19 12 22 13 23 13 23 118 *309 119 312 135. 358 195 542 48 ' ' 128 ' 49 129 85 232 85 233 86 234 86 234 176 480 70 199 71 200 71 201 <« 72 202 72 203 72 204 73 205 77 214 161 161 435 162 436 164 442 164 443 164 444 165 445 168 455 101 269 101 268 129 129 129 129 133 188 209 14 341 342 343 . 349 ' 510 *