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Full text of "1933 Supplement to the North Carolina code of 1931 : containing all the general laws of 1933"

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Digitized by the Internet Archive 
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1933 Supplement 



TO THE 



NORTH CAROLINA CODE 

0/1931 



CONTAINING ALL THE GENERAL 
LAWS OF 1933 



COMPLETE ANNOTATIONS 



UNDER THE EDITORIAL SUPERVISION OF 

A. HEWSON MICHIE 

ASSISTED BY 

BEIRNE STEDMAN 

INDEXED BY 

THOMAS JOHNSON MICHIE 



THE MICHIE COMPANY, LAW PUBLISHERS 

CHARLOTTESVILLE, VA. 

1933 



Copyright 1933 

BY 

The MichiE Company 
( 



Preface 



This compilation constitutes a complete supplement to the North Carolina 
Code of 1931. It contains all of the general laws enacted at the 1933 session 
of the Legislature, and the amended rules of court. The annotations are full and 
comprehensive. They begin where the Code of 1931 left off and continue until 
the date of publication. 

The index is confined to new laws. Amendments of former statutes are 
inserted under the same section numbers appearing in the Code of 1931. And 
this numbering applies to the Revenue and Machinery Acts of 1933 which super- 
sede the 1931 enactments. 

The same standard of skillful editorial work which contributed to the pop- 
ularity of the North Carolina Code of 1931 is maintained throughout this vol- 
ume. Special attention is directed to the editors' notes, pointing out the changes 
effected by the Acts of 1933. It is believed that these notes will prove invalu- 
able and will save the lawyer from laborious comparisons. 



Table of Contents 



PAGE 

Preface Ill 

Code oe North Carolina 1 

Constitution op North Carolina 321 

Rules oe Court 334 

Table Showing Codieication oe Laws 336 

Index 343 



1933 SUPPLEMENT 

TO THE 

NORTH CAROLINA CODE OF 1931 



CHAPTER 1 

ADMINISTRATION 

Art. 1. Probate Jurisdiction 

§ 1. Clerk of superior court has probate ju- 
risdiction. 

Cross Reference. — As to appellate review of exercise of 
power of clerk in appointing administrators or executors, 
see § 4139 and the note thereto. As to review of clerk's 
power in removing executors and administrators, see § 31 and 
the note thereto. 

Character of Duties.^See In re Styers, 203 N. C. 715, 164 
S. E. 12^', affirming Edwards v. Cobb, 95 N. C. 4, appearing 
under this catchline in the Code of 1931. 

Art. 3. Right to Administer 

§ 10. Divorce a vinculo or felonious slaying is 
forfeiture. 

Where a husband has taken out a policy of life insurance 

on his own life with his wife as beneficiary and has feloni- 
ously killed his wife and then himself, under this section and 
sections 137, 2522, his heirs may not claim tmder him the 
proceeds of the policy since the law will not allow a man or 
those claiming under him to benefit by his own wrong, and 
the proceeds of the policy are descendible to the next of 
kin of the wife and not to his heirs at law, Parker v. Pot- 
ter, 200 N. C. 348, 157 S. E. 68. 

§ 15. Failure to apply as renunciation. 

Effect of Appointment by Clerk. — Where the clerk has ap- 
pointed an administrator under this section a debtor of the 
estate cannot maintain the position that the appointment 
of a piiblic administrator was necessary to receive payment 
of the debt. Brooks v. Clement Co., 201 N. C. 768, 161 S. 
E. 403. 

Art. 4. Public Administrator 
§ 20. When to obtain letters. 

Prior Right of Others after Six Months. — 

After the expiration of six months, should the public ad- 
ministrator fail to apply, the field is open to the clerk of 
the superior court to treat all right of preference as re- 
nounced and to appoint, in the exercise of his discretion, 
some suitable person to administer the estate. Brooks v. 
Clement Co., 201 N. C. 768, 771, 161 S. E. 403. 

Art. G. Collectors 

§ 24. Appointment of collectors. — When, for any 
reason, a delay is necessarily produced in the ad- 
mission of a will to probate, or in granting letters 
testamentary, letters of administration, or letters of 
administration with the will annexed, the clerk may 
issue to some discreet person or persons, at his op- 
tion, letters of collection, authorizing the collection 
and preservation of the property of the decedent. 
When, for any reason, a delay is necessary in the 
production of positive proof of the death of any 
one who may have disappeared under circumstances 
indicating death of such person, any person inter- 
ested in the estate of such person so disappearing as 
heir at law, prospective heir at law, a creditor, a next 
friend, or any other person or persons interested, 
either directly or indirectly, in the estate of such 
person so disappearing, may file with the clerk of 
the superior court of the county in which the 
person so disappearng last resided, or in case such 
person so disappearing was at the time of his dis- 

[1 



appearance a nonresident of the State of North 
Carolina, witli the clerk of the superior court 
of any county in which any property was or 
might have been located at the time of such dis- 
appearance, a petition for the appointment of a 
collector of the estate of such person so disap- 
pearing, or the property of such person so disap- 
pearing, located within the county of the clerk to 
whom application is made, which petition shall set 
forth the facts and circumstances surrounding the 
disappearance of such person, and which petition 
shall be duly verified and supported by affidavit of 
persons having knowledge of the circumstances 
under which such person so disappeared, and if 
from such petition and such affidavits it should 
appear to the clerk that the person so disappearing 
is probably dead, then it shall be the duty of the 
clerk to so find and to issue to some discreet per- 
son or persons, at his option, letters of collection 
authorizing the collection and the preservation of 
the property of such person so disappearing. 
(Rev., s. 22; Code, s. 1383; C. C. P., s. 463; R. 
C, c. 46, s. 9; 1924, c. 43.) 

Art. 7. Appointment and Revocation 

§ 31. Letters revoked on application of sur- 
viving husband or widow or next of kin, or for 
disqualification or default. 

Appeal from Order of Clerk. — The powers of the clerk to 
remove executors and administrators, conferred by this sec- 
tion, are reviewable on appeal to the judge of the Superior 
Court of the county. Wright v. Ball, 200 N. C. 630, 158 S. 
E. 192. 

Where the Superior Court judge, upon appeal from the or- 
der of the clerk of the court in removing executors or ad- 
ministrators of an estate, has exercised his discretion in re- 
taining the cause in the Superior Court instead of remand- 
ing it to the clerk, the exercise of this discretion is not 
reviewable on appeal to the Supreme Court. Id. 

Art. 9. Notice to Creditors 
§ 45. Advertisement for claims. 

Editor's Note.— 

Public Laws 1933. c. 414, made the amendment of 1931, 
which was applicable in Nash and Edgecombe, applicable in 
Xash alone. 

Art. 10. Inventory 

§ 49. Compelling the inventory. — If the inven- 
tory and account of sale specified in the preced- 
ing section are not returned as therein pre- 
scribed, the clerk must issue an order requiring 
the executor, administrator or collector to file the 
same within the time specified in the order, 
which shall not be less than twenty days, or to 
show cause why an attachment should not be is- 
sued against him. If, after due service of the 
order, the executor, administrator, or collector 
does not, on the return day of the order, file such 
inventory or account of sale, or obtain further 
time to file the same, the clerk shall have power 
to vacate the office of administrator, executor or 
collector. And under all proceedings provided for 
in this section, the defaulting executor, admin- 

] 



§ 65(a) 



ADMINISTRATION 



150 



istratoi- or collector shall be personally liable for 
the costs of such proceeding to be taxed against 
him by the clerk of the superior court, or de- 
ducted from any commissions which may be 
found due such executor, administrator or col- 
lector upon final settlement of the estate. And 
the sheriffs of the several counties to whom a proc- 
ess is directed under the provisions of this section 
shall serve the same without demanding their fees 
in advance. (Rev., s. 43; Code, s. 1397; 186S-9, 
C. 113, s. 9; 1929, c' 9, s. 1; 1933, c. 100.) 

Editor's Note. — 

Public Laws 1933, c. 100 added the last sentence of this 
section as it now reads. 

Art. 11. Assets 

§ 65(a). Payment to clerk of sums not exceed- 
ing $300 due and owing intestates. — Where any 
person dies intestate and at the time of his or her 
death there is a sum of money owing to the said 
intestate not in excess of three hundred dollars, 
such sum may be paid into the hands of the clerk 
of the superior • court, whose receipt for same 
shall be a full and complete release and discharge 
for such debt or debts, and the said clerk of the 
superior court is authorized and empowered to 
pay out such sum or sums in the following man- 
ner: First, for satisfaction of widow's year's 
allowance, after same has been assigned in ac- 
cordance M^ith law, if such be claimed; second, 
for payment of funeral expenses, and if there be 
any surplus the same to be disposed of as is now 
provided by law. This section shall apply to the 
counties of Guilford, Edgecombe, Randolph, Cab- 
arrus, Iredell, Moore, Anson, Watuaga, Wilson, 
Cumberland, Johnston, Rutherford, Stanly, David- 
son, Currituck, Yadkin, Alexander, Stokes, Clay, 
Greene, Wayne, Franklin, Macon, Beaufort, 
Swain, Haywood, Caldwell, Burke, Gates, Rock- 
ingham, Graham, L,ee, Person, Catawba, Dare, 
Tyrrell, Perquimans, Transylvania, Duplin, Hyde, 
Pender, Alamance, Lincoln, Chowan, Forsj-th, 
Hoke, Lee, Vance, Robeson, Davidson, Durham, 
Wake, Mecklenburg, Harnett, Onslow, Nash, 
Halifax, Hertford, Pasquotank, Rowan and Mar- 
tin. (1921, c. 93; Ex. Sess. 1921, c. 65; 1924, cc. 
15, 58; 1927, c. 7; 1929, cc. 63, 71, 121; 1931, c. 21; 
1933, cc. 16, 49.) 

Editor's Note.— 

By Public I^aws 1933, cc. 16, 94, Wilson, Onslow and Nash 
counties were added to the list of those to which the section 
applies. 

Art. 13. Sales of Real Property 

§ 76. Lands conveyed by heir within two years 
sold. 

Conditionally Void. — 

Conveyances of real property within two years from the 
grant of letters are only void as to creditors and personal 
representatives, and as to them, only in case the personal 
assets are insufficient to pay the debts and costs of admin- 
istration; they are not void — they never cease to operate as 
to the parties to them. Jefferson Standard Life Ins. Co. v. 
Buckner, 201 N. C. 78, 81, 159 S. E. 1. 

§ 84. Notice of sale as on execution. — .Notice of 
sale under this proceeding shall l)e the same as 
for the sale of real estate by sheriffs on execution: 
Provided, however, that in case a re-sale of such 
real property shall become necessary under such 
proceeding, that such real property shall then be 
re-sold only after notice of re-sale has been duly 
posted at the courthouse door in the county for 



fifteen days immediately preceding the re-sale and 
also published at any time during such fifteen day 
period once a week for two successive weeks of 
not less than eight days in some newspaper pub- 
lished in the county, if a newspaper is published 
in the county, but if there be no newspaper pub- 
lished in said county the notice of re-sale must be 
posted at the courthouse door and three other pub- 
lic places in the county for fifteen days immedi- 
ately preceding the re-sale. (Rev., s. 81; Code, 
s. 1445; 1868-9, c. 113, s. 50; 1933, c. 187.) 

Editor's Note. — All of the proviso, now appearing in this 
section, was added by Public Laws 1933, c. 187. 

Art. 15. Accounts and Accounting 

§ 106. Clerk may compel account. — If any ex- 
ecutor, administrator or collector omits to ac- 
count, as directed in the preceding section, or 
renders an insufficient and unsatisfactory ac- 
count, the clerk shall forthwith order such execu- 
tor, administrator or collector to render a full 
and satisfactorj^ account, as required by law, 
within twenty days after service of the order. 
Upon return of the order, duly served, if such 
executor, administrator or collector fail to ap- 
pear or refuse to exhibit such account, the clerk 
may issue an attachment against him for a con- 
tempt and commit him till he exhibit such ac- 
count, and may likewise remove him from office. 
And the sheriffs of the several counties to whom 
a process is directed under the provisions of this 
section shall serve the same without demanding 
their fees in advance. (Rev., s. 100; Code, s. 1400; 
C. C. P., s. 479; 1933, c. 99.) 

Editor's Note. — The last sentence of this section as it now 
reads was added by Public Laws 1933, c. 99. 

§ 135. Suits for accounting at term. 

In Nature of Bill in Equity. — A suit by the beneficiaries 
under a will to have the executor account for mismanage- 
ment of the estate is in the nature of a bill in equity to sur- 
charge and falsify the executor's account. Thigpen v. 
Farmers' Banking, etc., Co., 203 N. C. 291, 165 S. E. 720. 

Art. 16. Distribution 
§ 137. Order of distribution. 

Cross Reference. — As to inheritance under insurance pol- 
icy where insured has killed beneficiary and himself, see 
note to § 10. 

Clause 6.— 

Right of Action for Mutilation of Child's Deatd Body. — 
A father's relation to his minor child and the consequent 
duties imposed on him by law clothes him with a prefer- 
ential right of action over the mother of the child to bring 
an action to recover damages for the mutilation of its dead 
body, and the provisions of this section do not affect the 
result. Stephenson v. Duke University, 202 N. C. 624, 163 
S. E. 698. 

§ 140. Illegitimates next of kin to mother and 
to each other. 

Brothers and Sisters of Bastard's Mother Do Not Inherit. - 

Under this section the mother and brothers and sisters of a 
bastard may inherit from him, but the rule extends no fur- 
ther, and the brothers and sisters of the bastard's mother 
may not inherit from him. Sharpe v. Carson, 204 N. C. 
513, 168 S. E. 829. 

Art. 17. Settlement 

§ 150. Representative must settle after two 
years. — No executor, administrator, or collector, 
after two years from his qualification, shall hold 
or retain in his hands more of the deceased's 
estate than amounts to his necessary charges and 
disbursements and such debts as he shall legally 

] 



§ 157 



ADMINISTRATION 



§ 176(a) 



pay; but all such estate so remaining shall, im- 
mediately after the expiration of two years, be 
divided and be delivered and paid to the person 
to whom the same may be due by law or the will 
of the deceased; and the clerk of the superior court 
in each county shall require settlement of the bal- 
ance in hand due distributees as shown by the 
final account of any administrator, executor, or 
guardian, and shall audit same: Provided, that 
upon petition of any executor, administrator or 
collector, and after notice in writing by registered 
mail to all devisees, legatees, or other parties in 
interest, at his, her or their last known post office 
address, posted not less than thirty days prior to 
the hearing upon such petition, the clerk of the 
superior court, for good and sufficient cause shown, 
may extend the time for filing the final settlement 
of any estate, from year to year, for a total period 
not to exceed an aggregate of five years from and 
after the date of the qualification of such executor, 
administrator or collector, which said order of the 
clerk of the superior court shall not become effec- 
tive until approved by the resident judge of the 
superior court. (Rev., s. 147; Code, s. 1488; 1868- 
9, c. 113, s. 59; 1919, c. 69; 1933, c. 188.) 

Editor's Note. — 

The proviso at the end of the section, giving the clerk 
power to extend the time, was added by Public Laws 1933, 
c. 188. 

§ 157. Commissions allowed representatives. 

Dower as an "Interest in the Estate". — Manifestly, a 
claim of dower is an "interest" in the estate. Hence the 
wording of this section lends direct support to a judgment 
giving priority to commissions due executors, reasonable at- 
torney's fees and costs. Parsons v. Leak, 204 N. C. 86, 92, 
167 S. E. 563. 

Art. 18. Action by and against Representative 

§ 160. Death by -wTongful act; recovery not as- 
sets; dying declarations. — When the death of a 
person is caused by a wrongful act, neglect or 
default of another, such as would, if the injured 
party had lived, have entitled him to an action for 
damages therefor, the person or corporation that 
would have been so liable, and his or their ex- 
ecutors, administrators, collecters or successors, 
shall be liable to an action for damages, to be 
brought within one year after such death, by the 
executor, administrator or collector of the dece- 
dent; and this notwithstanding the death, and al- 
though the wrongful act, neglect or default, 
causing the death, amounts in law to a felony. 
The amount recovered in such action is not liable 
to be applied as assets, in the paj^ment of debts 
or legacies, except as to burial expenses of the 
deceased, but shall be disposed of as provided in 
this chapter for the distribution of personal prop- 
erty in case of intestacy. 

In all actions brought under this section the 
dying declarations of the deceased as to the cause 
of his death shall be admissible in evidence in like 
manner and under the same rules as dying decla- 
rations of the deceased in criminal actions for 
homicide are now received in evidence. (Rev., s. 
59; Code, ss. 1498, 1500; 1868-9, c. 113, ss. 70, 72, 
115; R. C, c. 46, ss. 8, 9; 1919, c. 29; 1933, c. 113.) 

L IN GENERAL. 
Editor's Note. — 

The exception as to burial expenses to the exemption of 
the amount from payment of debts was inserted by Public 
Laws 1933, c. 113. 

[3 



II. LIMITATION OF THE ACTION. 
In General. — The limitation of the section is stated in De- 
vis v. Norfolk Southern R. Co., 200 N. C. 345, 157 S. E. 11. 
Condition Affecting Cause. — 

See Mathis v. Camp Mfg. Co., 204 N. C. 434, 435, 168 S. 
E- 515, following the rule stated under this catchline in the 
Code of 1931. 

After Nonsuit. — 

See Swainey v. Great Atlantic, etc., I'ea Co., 204 N. C. 
713, 715, 169 S. E. 618, following the rule stated under this 
catchline in the Code of 1931. 

See § 415 and notes thereto. 

III. PARTIES TO THE ACTION. 
Action by Administrator of Child against Parents. — An 

unemancipated child living with his parents may not main- 
tain an action in tort against them, nor can the administra- 
tor of the child recover damages against them for the child's 
wrongful death, a.s this section gives a right of action for 
wrongful death only where the injured party, if he had lived, 
could have maintained such action. Goldsmith v. Samet, 201 
N. C. 574, 160 S. E. 835. 

Joinder of Employer with Employee. — The right to main- 
tain an action for the wrongful death of a deceased rests 
exclusively upon this section, and where the death is caused 
by the negligence of an employee while acting within the 
scope of his authority the employer may be joined as a de- 
fendant under the doctrine of respondent superior. Brown 
V. Southern R. Co., 202 N. C. 256. 162 S. E. 613. 

Action by Administrator of Employee Who Hcis Received 
Workman's Compensation. — ^When an administratrix of a 
deceased employee who has received compensation for the 
employee's death under the provisions of the Workmen's 
Compensation Act is thereby barred from prosecuting any 
other remedy for the injury, she may, under this section, 
pending the hearing before the Industrial Commission, in- 
stitute an action against a third person whose negligent 
acts caused the death of the intestate. Phifer v. Berry, 
202 N. C. 388, 163 S. E. 119. 

§ 161. Damages recoverable for death by wrong- 
ful act. 

Nature and Quantum of Damages Recoverable. — 

In an action for wrongful death under this section the 
jury may consider evidence of the plaintiff's intestate's age, 
habits, industry skill, means and business, and the admis- 
sion of testimony that the deceased had a 200-acre farm, a 
comfortable home, and a plenty for his family to eat and 
wear, was not error. Hicks v. Love, 201 N. C. 773, 161 S. 
E. 394 

Art. 19. Representative's Powers, Duties and Li- 
abilities 

§ 176(a). Power to renew obligation; no per- 
sonal liability. — In all cases where a decedent is 
the maker or one of the makers, a surety or one 
of the sureties, an endorser or one of the en- 
dorsers, a guarantor or one of the guarantor's 
of any note, bond or other obligation for the 
payment of money which is due or past due 
at the death of said decedent, or shall thereafter 
become due prior to the settlement of the estate 
of said decedent, the administrator, executor or 
collector of said decedent's estate is hereby au- 
thorized and empowered to execute as such ad- 
ministrator, executor or collector a new note, 
bond or other obligation for the payment of 
money, in the same capacity as decedent was ob- 
ligated for the same amount or less but not 
greater than the sum due on the original obliga- 
tion which shall be in lieu of the original obliga- 
tion of the decedent, whether made payable to 
the original holder or another, and is authorized 
and empowered to renew said note, bond or 
other obligation for the payment of money from 
time to time, and said note, bond or other obli- 
gation for the payment of money so executed by 
said administrator, executor or collector shall be 
binding upon the estate of said decedent to the 
same extent and in the same manner and with 

] 



§ 182 



ADOPTION OF MINORS 



§ 191(5) 



the same effect that the original note, bond or 
other obligation for the payment of money so exe- 
cuted by the decedent was binding upon his es- 
tate: Provided, the time for final payment of the 
note, bond or other obligation for the payment 
of money, or any renewal thereof by said ad- 
ministrator, executor or collector shall not ex- 
tend beyond a period of two years from the qual- 
ification of the original administrator, execu- 
tor or collector as such upon the estate of said 
•decedent: Provided, however that if it shall be 
made to appear to the court that it is for the best 
interest of the estate that said time for final pay- 
ment extend for a longer period than tv/o years, 
then the court in its discretion may empower and 
authorize the administrator, executor or collector 
■of said estate to renew the note, bond or other ob- 
ligation for the payment of money, or any renewal 
or extension thereof by said administrator, execu- 
tor or collector for such period as the court may 
deem best or for a period of time not exceeding 
two years: Provided, further that when the time 
for final settlement of the estate of said decedent 
has been extended from year to year for a longer 
period by order of the clerk of the superior court, 
approved by the resident judge of the superior 
court, such note, bond or other obligation for the 
paj-ment of money or any renewal thereof by the 
said administrator, executor or collector may like- 
wise be extended but not beyond the period au- 
thorized by the court for the final settlement of 
the estate of said decedent. The executor of 
any note, bond or other obligation for the 
payment of money mentioned in this section 
by the administrator, executor or collector of the 
decedent shall not be held or construed to be bind- 
ing upon said administrator, executor or collector 
personally. (192,5, c. 86; 1933, cc. 161, 196, 498.) 
Editor's Note.— Public Laws 1933, cc. 161, 196, 498, inserted 
the Avords "a guarantor or one of the guarantor's" near the 
beginning of the section, and added the provisos giving the 
administrator power to extend and renew obligations. The 
part of this section beginning with words "unless it shall bt- 
made to appear," and continuing to the end of the first sen- 
tence, does not apply in Mecklenburg and Pamlico counties. 
See § 2 of the Act of 1933. 



CHAPTER 2 

ADOPTION OF MINORS 

§§ 182-191. Repealed by Public Laws 1933, c. 
207, s. 1. 

§ 191(1). Petition for adoption. — Any proper 
adult person or husband and wife, jointly, who 
have legal residence in North Carolina may peti- 
tion the superior court of the county in which he 
■or they have legal residence, or the county in 
which the child resides, or of the county in which 
the child had legal residence when it became a 
public charge, or of the county in which is located 
fany agency or institution operating under the 
laws of this state having guardianship and custody 
of the child, for leave to adopt a child and for a 
change of the name of such child: Provided, that 
in every instance the child and his parent or par- 
ents have legal residence in this state. Such pe- 
tition for adoption shall be filed in duplicate on 
standard form, to be supplied by the state board of 
charities and public welfare, one form to be held 
in the files of the said superior court, and the 

[4 



other to be returned to said state board of chari- 
ties and public welfare to be held a permanent rec- 
ord. (1933, c. 207, s. 1.) 

§ 191(2). Investigation by county superintend- 
ent of public welfare. — Upon the filing of a peti- 
tion for the adoption of a minor child the court 
shall instruct the county superintendent of public 
welfare, or a duly authorized representative of 
a child-placing agency, licensed by the state board 
of charities and public welfare, to investigate the 
conditions and antecedents of the child for the 
purpose of ascertaining whether he is a proper 
subject for adoption, and to make appropriate in- 
quiry to determine whether the proposed foster 
home is a suitable one for the child. The county 
superintendent of public welfare or the duly au- 
thorized representative of such agency described 
hereinbefore shall make a written report of his 
findings to the court of adoption. (1933, c. 207, 
s. 2.) 

§ 191(3). Parent or guardian necessary party. 

— The parent or guardian, or the persons having 
charge of such child, or with whom it may reside, 
must be a party of record in this proceeding. 
(1933, c. 207, s. 3.) 

§ 191(4). Tentative approval of petition; com- 
pletion of adoption after one to two years. — Upon 
the filing of the written report of the superintend- 
ent of public welfare or of a duly authorized rep- 
resentative of said agency described hereinbefore 
and with the consent of the parent or parents if 
living or of the guardian, if any, or of the person 
with whom such child resides, or who may have 
charge of such child, except in cases hereinafter 
provided for, the court, if it be satisfied that the 
petitioner is a proper and suitable person and that 
the adoption is for the best interests of the child, 
may tentatively approve the adoption and issue 
an order giving the care and custody of the child 
to the petitioner. Within two years thereafter, 
but not earlier than one year from date of such 
order, the court, at its discretion, may complete 
the adoption by an order granting letters of adop- 
tion and eft'ect of adoption shall be retroactive to 
date of application. During this interval the child 
shall remain the ward of the court and shall be 
subject to such supervision as the court may di- 
rect. (1933, c. 207, s. 4.) 

§ 191(5). Relation of parent and child estab- 
lished; right of inheritance. — Such order granting 
letters of adoption, when made, shall have the ef- 
fect forthwith to establish the relation of parent 
and child between the petitioner and the child 
during the minority or for the life of such child, 
according to the prayer of the petition, with all 
the duties, powers and rights belonging to the re- 
lationship of parent and child, and in case the 
adoption be for the life of the child, and the peti- 
tioner die intestate, such order shall have the fur- 
ther effect to enable such child to inherit the real 
estate and entitle it to the personal estate of the 
petitioner in the same manner and to the same ex- 
tent such child would have been entitled to if such 
child had been the actual child of the person adopt- 
ing it. The child shall not inherit and be entitled 
to the personal estate if the petitioner especially 
sets forth in his petition such to be his desire and 
intention. Any proceedings conducted under this 



§ 191(6) 



ATTORNEYS AT LAW 



§ 215(2) 



section to which the adopting parent shall be a 
party shall be binding- upon such party, regardless 
of lack of jurisdiction as to the other persons or 
any irregularities in the proceedings. (1933, c. 
207, s. 5.) 

§ 191(6). Change of name of child; report to 
bureau of vital statistics; entries on birth certifi- 
cate. — For proper cause shown the court may de- 
cree that the name of the child shall be changed 
to that of the adopting parent: Provided, that 
whenever the name of any child is so changed, the 
court shall immediately report such change to the 
bureau of vital statistics of the state l^oard of 
health, authorizing said bureau to enter change of 
name on the original birth certificate of the child 
and to issue upon request a certificate of birth 
bearing the new name of a child as shown in the 
decree of adoption, the name of the foster par- 
ents of said child, age, sex, date of birth, but no 
reference in any certified copy of the birth cer- 
tificate shall be made to the adoption of the said 
child. However, original registration of birth shall 
remain a part of the record of the said bureau of 
vital statistics. The provisions of this section 
shall apply to all minors heretofore adopted in 
accordance with the laws existing at the time of 
such adoptions in as full a manner as to adoptions 
hereunder. (1933, c. 207, s. 6.) 

§ 191(7). Bond of petitioner where child with 
estate is without guardian. — iWhen the court grants 
the petitioner the custody of the child, if the child 
is an orphan and without guardian and possesses 
any estate, the court shall require from the peti- 
tioner such bond as is required by law to be given 
by guardians. (1933, c. 207, s. 7.) 

§ 191(8). Recordation or revocation of order of 
adoption. — The order granting letters of adoption 
shall be recorded in a book entitled "Clerk's Rec- 
ord of Orders and Decrees" in the office of the 
clerk of the superior court in the county in which 
the adoption is made, and may be revoked at any 
time within two years after date of order by the 
court for good cause shown. On issuing such or- 
der granting letters of adoption, the clerk of the 
superior court of the county in which order is is- 
sued shall send copy of such order to the state 
board of charities and public welfare and likewise 
a copy of revocation of order to said board to be 
held as a permanent record. (1933, c. 207, s. 8.) 

§ 191(9). Abandonment or unfitness of parents 
deemed forfeiture of rights. — In all cases where 
the parent or parents of any child has willfully 
abandoned the care, custody, nurture and main- 
tenance of the child to kindred, relatives or other 
persons, and in all cases where a court of com- 
petent jurisdiction has declared the parent or 
parents or guardians unfit to have the care and 
custody of such child, such parent or parents or 
guardian shall be deemed to have forfeited all 
rights and privileges with respect to the care, 
custody and services of such child, and upon find- 
ing of such fact by the court, shall not be necessary 
parties to any action or proceeding under this 
chapter. (1933, c. 207, s. 9.) 

§ 191(10). Past adoption orders validated. — .\U 
proceedings for the adoption of minors in courts 
of this state are hereby validated and confirmed, 
and the orders and judgments therein are declared 



to be binding upon all parties to said proceedings 
and their privies and all other persons, until the 
orders or judgments shall be vacated as provided 
by law. (1933, c. 207, s. 10.) 

§ 191(11). Parent whose rights have been for- 
feited and who takes child guilty of crime. — Any 

parent whose rights and privileges have been for- 
feited as provided by section 191(9) who shall 
procure the possession and custody of such child, 
with respect to whom his rights and privileges 
are forfeited, otherwise than by law provided, 
shall be guilty of a crime, and shall be punished, 
as for abduction. (1933, c. 207, s. 11.) 



CHAPTER 4 

ATTORNEYS AT LAW 

Art. 1. Licenses and Qualifications of Attorneys; 
Unauthorized Practice of Law 

§ 198. Persons disqualified. — No clerk of the 
superior or supreme court, nor deputy or assist- 
ant clerk of said courts, nor register of deeds, 
nor sheriff nor any justice of the peace, nor 
county commissioner shall practice law. Per- 
sons violating this provision shall be guilty of 
a misdemeanor and fined not less than two hun- 
dred dollars. This section shall not apply to 
Confederate soldiers. (Rev., ss. 210, 3641; Code 
ss. 27, 28, 110; 1870-1, c. 90; 1883, c. 406; 1871-2, 
c. 120; 1880, c. 43; C. C. P., s. 424; 1919, c. 203; 
1933, c. 1.5.) 

Editor's Note. — ^Registers of deeds were, by Public Laws 
1933, c. 15, added to the list of these excluded from practice. 
For act permitting attorneys to act as justices of the peace 
in Burke County, see Public Laws 1933, c. 135. 

Art. 3. Arguments 
§ 203. Court's control of argument. 

Reading Dissenting Opinion as Law of Case. — It is not per- 
missible for counsel, in his argument to the jury, to read 
a dissenting opinion by a Justice of the Supreme Court as 
the law of the case over the defendant's objection, and where 
this has been done a new trial will be awarded on the de- 
fendant's exception thereto. It is the duty of the trial 
court, either to direct counsel not to read the dissenting 
opinion or to plainly and unequivocally instruct that the 
dissenting opinion had no legal bearing upon the case. Conn 
V. Seaboard Air Line R. Co., 201 N. C. 157, 159 S. E. 331. 

Art. 4. Disbarment 
§§ 204-207. Repealed by Public Laws 1933, c. 
210, s. 20. 

Art. 5. Proceedings for Disbarment 

§§ 208-215. Repealed by Public Laws 1933, c. 
210, s. 20. 

Art. 6. North Carolina State Bar 

§ 215(1). Creation of North Carolina state 
bar as an agency of the state. — There is hereby 
created as an agency of the state of North Caro- 
lina, for the purposes and with the powers here- 
inafter set forth, the North Carolina state bar. 
(1933, c. 210, s. 1.) 

§ 215(2). Membership and privileges. — The 

membership of the North Carolina state bar shall 
consist of two classes, active and honorary. 

The active members shall be all persons wha 
shall have heretofore obtained, or who shall 
hereafter obtain, a license or certificate, which 
shall at the time be valid and effectual, entitling 



§ 215(3) 



ATTORNEYS AT LAW 



§ 215(4) 



them to practice law in the state of North 
CaroHna. No person other than a member of 
the North Carolina state bar shall practice in 
any court of the state, except foreign attorneys 
as provided by statute. 

The honorary members shall be (a) the chief 
justice and associate justices of the supreme 
court of North Carolina; (b) the judges of the 
superior courts of North Carolina; (c) all for- 
mer judges of the above-named courts resident 
in North Carolina, but not engaged in the 
practice of law; (d) judges of the district courts 
of the United States and of the circuit court of 
appeals resident in North Carolina. 

Only active members shall be required to pay 
annual membership fees, and shall have the 
right to vote. A member shall be entitled to 
vote at all annual or special meetings of the 
North Carolina state bar, and at all meetings of 
and elections held by the bar of each of the 
judicial districts in which he resides: Provided, 
that if he desires to vote with the bar of some 
district in which he practices, other than that 
in which he resides, he may do so upon filing 
with the resident judge of the district in which 
he desires to vote, and with the resident judge 
of the district in which he resides (and, after 
the North Carolina state bar shall have been 
organized as hereinafter set forth, with the 
secretary-treasurer of the North Carolina state 
bar), his statement in writing that he desires to 
vote in such other district: Provided, however, 
that in no case shall he be entitled to vote in 
more than one district. (1933, c. 210, s. 2.) 

§ 215(3). Government. — The government of 
the North Carolina state bar shall be vested in 
a council of the North Carolina state bar, here- 
inafter referred to as the "council," consisting 
of one councillor from each judicial district of 
the state, to be appointed or elected as herein- 
after set forth, and the officers of the North 
Carolina state bar, who shall be ex officio mem- 
bers during their respective terms of office. 
Notwithstanding any provisions of this act as to 
the voting powers of members, the council shall 
be competent to exercise the entire powers of 
the North Carolina state bar in respect of the 
.interpretation and administration of this article, 
the acquisition, lease, sale, or mortgage of prop- 
erty, real or personal, the seeking of amend- 
ments hereto, and all other matters, except as 
otherwise directed or overruled, as in section 
sixteen hereof provided. The councillors elected 
shall serve as follows: Those elected from the 
first, fourth, seventh, tenth, thirteenth, sixteenth, 
and nineteenth districts shall serve for one year 
from the date of their elections; those elected 
from the second, fifth, eighth, eleventh, four- 
teenth, seventeenth, and twentieth districts shall 
serve for two years from the date of their elec- 
tion; and those elected from the third, sixth, 
ninth, twelfth, fifteenth, and eighteenth districts 
shall serve for three years from the date of their 
election: Provided, that upon- the election of 
successors to the councillors first elected, the 
term of office and the period for which such 
councillors are elected shall be three years from 
the date of election. 

All councillors elected from any additional ju- 
dicial districts shall be elected for a term of three 
years. 

[6 



Neither a councillor nor any officer of the 
council or of the North Carolina state bar shall 
be deemed as such to be a public officer as that 
phrase is used in the constitution and laws of 
the state of North Carolina. (1933, c. 210, s. 3.) 

§ 215(4). Election of councillors. — Within 
thirty days after this article shall have gone into 
effect the judge of each judicial district shall, by 
notice posted at the front door of each court- 
house within his district and by such other 
means as he shall think desirable, call a meet- 
ing of the attorneys residing within his district, 
and any others who may declare in writing their 
desire to be affiliated with that district, as here- 
inabove provided, for the purpose of organizing 
the bar of the district, the said meeting to be 
held at a place deemed by the judge to be con- 
venient, on a day fixed, not less than twenty 
nor more than thirty days from posting of no- 
tice. At that meeting such attorneys as attend 
shall constitute a quorum, and shall forthwith 
form such organization herein referred to as the 
"district bar," as thej' may deem advisable, of 
which organization all active members of the 
North Carolina state bar entitled to vote in that 
district shall be members. The district bar 
shall be the subdivision of the North Carolina 
state bar for that judicial district, and shall 
adopt such rules, regulations and by-laws not 
inconsistent with this article as it shall see fit, 
a copy of which shall be transmitted to the 
secretary-treasurer of the North Carolina state 
bar when organized; and copies of any amend- 
ments of such rules, regulations, and by-laws 
shall likewise be sent to said secretary-treasurer. 
The district bar so formed shall, at the time of 
its formation, elect a councillor to represent that 
district, and all subsequent elections of coun- 
cillors, whether for regular terms or to fill va- 
cancies, shall be held as provided by the said 
rules, regulations, and by-laws so adopted by 
the district bar. In case the judge of any ju- 
dicial district, by reason of physical disability or 
otherwise, shall fail to call the meeting afore- 
said within thirty days after this article shall 
have gone into effect, the same may be called 
within thirty days thereafter by any two attorneys 
residing in said district, by written notice signed 
by them and delivered to the clerk of the court 
of each county in the district to be posted at the 
front door of each courthouse as aforesaid, the 
said meeting to be held on a day fixed not less 
than twenty nor more than thirty days after the 
posting of said notice; and thereupon the same 
proceedings shall take place as though the meet- 
ing had been called by the judge as aforesaid. 
Any clerk to whom any such notice shall be de- 
livered to be posted shall immediately post the 
same and shall write upon the said notice the 
exact date and time when the same is so posted. 
In case more than one notice shall be posted 
hereunder by different groups of attorneys, that 
posted first in point of time shall prevail and be 
deemed to be the notice provided for under this 
article. Pending the organization of the council 
as hereinafter provided, notification of the elec- 
tion of each councillor shall be sent within five 
days after such election by the secretary of the 
district bar to the clerk of the supreme court of 
North Carolina; but after the organization of the 
council such notices shall be sent to its secretary- 

] 



§ 215(5) 



ATTORNEYS AT LAW 



§ 215(7) 



treasurer. In case neither the judge nor any 
two members shall call a meeting as aforesaid, 
a councillor for the said district, residing therein, 
shall be named at a meeting of such members of 
the council as shall have been elected in accord- 
ance herewith, to serve until such district bar shall 
be organized under the provisions of this arti- 
cle (except as to the time for calling meetings), 
either on the call of the judge of the district 
court or of two members of the bar, and shall 
have elected a councillor to serve for the un- 
expired term of the councillor so named. (1933, 
c. 210, s. 4.) 

§ 215(5). Change of judicial districts. — In the 

event that a new district shall hereafter be 
carved out of an existing district, the councillor 
for the old district shall remain in office and 
continue to represent the district constituting 
that portion of the old district in which he re- 
sides or with which he has elected to be affiliated; 
and within thirty days after the division of the 
old district shall have become effective, or so 
soon thereafter as practicable, the same pro- 
cedure shall be followed for the organization of 
the North Carolina state bar, constituting the 
remaining and unrepresented portion of the old 
district, and for the election of a councillor to 
represent the same, as is prescribed by section 
215(4); and if a new district or more than one 
new district shall be formed by a recombination 
or reallocation of the counties in more than one 
existing district, the same procedure shall be 
followed as is prescribed by section 215(4), in 
said new district, or in each of them if there be 
more than one, within thirty days after the elec- 
tion or appointment of the judge or judges there- 
of; but in that event the office of councillor for 
each of the old districts the counties in which 
shall have been so recombined into or reallocated 
to such new district or districts shall cease, de- 
termine, and become vacant so soon as the bar 
or bars of such new district, or all of such new 
districts if there shall be more than one, shall 
have been organized and shall have elected a 
councillor or councillors therefor, but not earlier: 
Provided, that if at such time any councillor 
whose office shall thus become vacant be actually 
serving upon a committee before which there is 
pending any trial of a case of professional mis- 
conduct or malpractice, he shall, notwithstand- 
ing the election of a new councillor, continue to 
serve as councillor for the purpose of trying 
such case until judgment shall have been rendered 
therein. (1933, c. 210, s. 5.) 

§ 215(6). Compensation of councillors. — The 

members of the council and members of com- 
mittees sitting upon disbarment proceedings shall 
receive such compensation, not exceeding ten 
($10.00) dollars per day for the time spent in 
attending meetings, as shall be determined by 
the council, to be paid by the secretary-treasurer 
of the North Carolina state bar, on statements 
certified by the members presenting them, from 
the funds collected by him as hereinafter set 
forth. (1933, c. 210, s. 6.) 

§ 215(7). Organization of council; publication 
of rules, regulations and by-laws. — Upon re- 
ceiving notification of the election of a councillor 
for each judicial district, or, if such notification 
shall not have been received from all said dis- 

[7 



Iricts, within one hundred and twenty (120) days 
after this article shall have gone into effect, the 
clerk of the supreme court of North Carolina 
shall call a meeting of the councillors of whose 
election he shall have been notified, to be held 
in the city of Raleigh not less than twenty days 
nor more than thirty days after the date of said 
call; and at the meeting so held the councillors 
attending the same shall proceed to organize the 
council by electing officers, taking appropriate 
steps toward the adoption of rules and regula- 
tions, electing councillors for judicial districts 
which have failed to elect them, and taking such 
other action as they may deem to be in further- 
ance of this article. The regular term of all officers 
shall be one year, but those first elected shall 
serve until the first day of January, one thousand 
nine hundred thirty-five. The council shall be 
the judge of the election and qualifications of its 
own members. When the council shall have 
been fully organized and shall have adopted such 
rules, regulations and by-laws, not inconsistent 
with this article, as it shall deem necessary or ex- 
pedient for the discharge of its duties, the 
secretary-treasurer shall file with the clerk of the 
supreme court of North Carolina a certificate, 
to be called the "certificate of organization," 
showing the officers and members of the council, 
with the judicial districts which the members 
respectively represent, and their post office ad- 
dresses, and the rules, regulations and by-laws 
adopted by it; and thereupon the chief justice of 
the supreme court of North Carolina, or any 
judge thereof, if the court be then in vacation, 
shall examine the said certificate and, if of opinion 
that the requirements of this article have been 
complied with, shall cause the said certificate to 
be spread upon the minutes of the court; but if 
of opinion that the requirements of this article 
have not been complied with, shall return the 
said certificate to the secretary-treasurer with a 
statement showing in what respects the provi- 
sions of this article have not been complied with; 
and the said certificate shall not be again pre- 
sented to the chief justice of the supreme court 
or any judge thereof, until any such defects 
in the organization of the council shall have been 
corrected, at which time a new certificate of 
organization shall be presented and the same 
course taken as hereinabove provided, and so on 
until a correct certificate showing the proper or- 
ganization of the council shall have been pre- 
sented, and the organization of the council ac- 
cordingly completed. Upon (a) the entry of an 
order upon the minutes of the court that the re- 
quirements of this article have been complied 
with, or (b) if for any reason the chief justice or 
judge should not act thereon within thirty days, 
then, after the lapse of thirty days from the 
presentation to the chief justice or judge, as the 
case may be, of any certificate of organization 
hereinabove required to be presented by the 
secretary-treasurer, without either the entry of 
an order or the return of said certificate with a 
statement showing the respects in which this 
article has not been complied with, the organiza- 
tion of the council shall be deemed to be com- 
plete, and it shall be vested with the powers 
herein set forth; and the certificate of organiza- 
tion shall thereupon forthwith be spread upon 
the minutes of the court. A copy of the certificate 

] 



§ 215(8) 



ATTORNEYS AT LAW 



§ 215(11) 



of organization, as spread upon the minutes of 
the court, shall be published in the next ensuing 
volume of the North Carolina Reports. The 
rules and regulations set forth in the certificate 
of organization, and all other rules and regula- 
tions which may be adopted by the council under 
this article, may be amended by the council from 
time to time in any manner not inconsistent with 
this article. Copies of all such rules and regula- 
tions adopted subsequently to the filing of the 
certificate of organization, and of all amendments 
so made by the council, shall be certified to the 
chief justice of the supreme court of North Caro- 
lina, entered by it upon its minutes, and published 
in the next ensuing number of the North Carolina 
Reports: Provided, that the court may decline to 
have so entered upon its minutes any of such 
rules, regulations and amendments which in the 
opinion of the chief justice are inconsistent with 
this article. (1933, c. 310, s. 7.) 

§ 215(8). Officers and committees of the North 
Carolina state ban- — The officers of the North 
Carolina state bar shall be a president, a vice- 
president, and a secretary-treasurer, who shall 
be deemed likewise to be the officers, with the 
same titles, of the council. Their duties shall be 
prescribed by the council. The president and 
vice-president shall be elected by the members of 
the North Carolina state bar at its annual meet- 
ing, and the secretary-treasurer shall be elected 
by the council. All officers sliall hold office for 
one year and until their successors are elected 
and qualified. The officers need not be members 
of the council. (1933, c. 210, s. 8.) 

§ 215(9). Powers of council. — Subject to the 
superior authority of the general assembly to 
legislate thereon by general laws, and except as 
herein otherwise limited, the council is hereby 
vested, as an agency of the state, with control of 
the discipline and disbarment of attorneys prac- 
ticing law in this state: Provided, that from any 
order suspending an attorney from the practice 
of law and from any order disbarring an at- 
torney, an appeal shall lie, as of right in the man- 
ner hereinafter provided, to the superior court 
judge regularly holding the courts of the county 
wherein the attorney involved resides. The coun- 
cil shall have power to administer this article; to 
formulate and adopt rules of professional ethics 
and conduct; to publish an official journal con- 
cerning matters of interest to the legal profes- 
sion, and to do all such things necessary in the 
furtherance of the purposes of this article as are 
not prohibited by law. (1933, c. 210, s. 9.) 

§ 215(10). Admission to practice. — The provi- 
sions of the law now obtaining with reference to 
admission to the practice of law, as amended, and 
the rules and regulations prescribed by the su- 
preme court of North Carolina with reference 
thereto, shall continue in force until superseded, 
changed or modified by or under the provisions of 
this article. 

For the purpose of examining applicants and 
providing rules and regulations for admission to 
the bar including the issuance of license therefor, 
there is hereby created the board of law examin- 
ers, which shall consist of (1) such member of 
the supreme court of North Carolina as that court 
from time to time may select and commission for 
such special purpose, and (2) six members of the 



bar, elected by the council of the North Carolina 
state bar, who need not be members of the coun- 
cil. No teacher in any law school, however, shall 
be eligible. The members of the board of law 
examiners elected from the bar shall each hold 
office for a term of three i'cars: Provided, that 
the members first elected shall hold office, two 
for one year, two for two years, and two for three 
years. 

The member of the supreme court selected 
and commissioned for such special purpose shall 
be and act as chairman ex-officio of the board, 
and the secretary of the North Carolina State bar 
shall be the secretary of the board, and serve 
without additional pay. 

The examination shall be held in such manner 
and at such times as the board of law examiners 
may determine, but no change in the time or 
place shall become effective within one year from 
the date upon which the change is determined. 

The fees for examination shall be the same as 
now provided by law and shall be paid in the 
same manner. After the payment of the ex- 
penses of the examination, as by this article pro- 
vided, the remaining sum paid in by reason of ap- 
plication for admission to practice shall be paid 
to the supreme court for the same use and pur- 
poses as such funds are now used. 

The board of law examiners subject to the ap- 
proval of the council, shall by majority vote, 
from time to time, make, alter and amend such 
rules and regulations for admission to the bar as 
in their judgment shall promote the welfare of 
the state and the profession: Provided, that any 
change in the educational requirements for ad- 
mission to the bar shall not become effective 
within two years from the date of the adoption 
of such change. 

All such rules and regulations, and modifica- 
tions, alterations and amendments thereof, shall 
be recorded and promulgated as provided in sec- 
tion seven of this article in relation to the certifi- 
cate of organization and the rules and regulations 
of the council. 

For conducting each examination, the mem- 
bers of the board of law examiners participating 
therein shall each receive such compensation, not 
exceeding the sum of fifty ($i50.00) dollars, as 
shall be determined by the council. (1933, c. 
210, s. 10; c. 331.) 

§ 215(11). Discipline and disbarment. • — The 

council or any committee of its members ap- 
pointed for that purpose shall have jurisdiction 
to hear and determine all complaints, allegations, 
or charges of malpractice, corrupt or unprofes- 
sional conduct, or the violation of professional 
ethics, made against any member of the North 
Carolina state bar; may administer the punish- 
ments of private reprimand, suspension from the 
practice of law for a period not exceeding twelve 
months, and disbarment as the case shall in their 
judgment warrant, for any of the following 
causes: 1. Commission of a criminal offense 
showing professional unfitness; 2. Detention with- 
out a bona fide claim thereto of property received 
or money collected in the capacity of attorney; 
3. Soliciting professional business; 4. Conduct 
involving willful deceit or fraud or any other un- 
professional conduct; may invoke the processes 
of the courts in any case in which they deem it 
desirable to do so; and shall formulate rules of 



[8] 



§ 215(12) 



ATTORNEYS AT LAW 



§ 215(16) 



procedure governing the trial of any such person. 
Such rules shall provide for notice of the nature 
of the charges and opportunity to be heard; for 
a complete record of the proceedings for pur- 
poses of appeal, and, in the event that the pen- 
alty adjudged be suspension from the practice, or 
disbarment, for an appeal, as of right to the su- 
perior court judge regularly holding the courts 
of the county wherein the attorney involved re- 
sides on the record made before the council, or 
the committee, as the case may be; upon appeal 
to the judge of the superior court, the accused 
shall have the right to have his cause heard by a 
jury. From the decision of the superior court 
judge hearing the appeal or the jury, the coun- 
cil (or committee) and the accused attorney shall 
each have the right of appeal to the supreme 
court of North Carolina. Trials shall be held in 
the county in which the accused member resides: 
Provided, however, that the committee conduct- 
ing the hearing shall have power to remove the 
same to any county in which the ofifense, or part 
thereof, was committed, if in the opinion of such 
committee the ends of justice or convenience of 
witnesses require such removal. In hearings be- 
fore the council (or committee) and in all appeals 
the procedure shall conform as near as may be to 
the procedure now provided by law for hearings 
upon the report of referees in references by con- 
sent. (1933, c. 210, s. 11.) 

§ 215(12). Concerning evidence and witness 

fees. — In any investigation of charges of profes- 
sional misconduct the council and any committee 
thereof shall have power to summon and exam- 
ine witnesses under oath, and to compel their at- 
tendance, and the production of books, papers, 
and other documents or writings deemed by it 
necessary or material to the inquiry. Each sum- 
mons or subpoena shall be issued under the hand 
of the secretary-treasurer or the president of the 
council or the chairman of the- committee ap- 
pointed to hear the charges, and shall have the 
force and effect of a summons of subpoena is- 
sued by a court of record, and any witness or 
other person who shall refuse or neglect to ap- 
pear in obedience thereto, or to testify or pro- 
duce the books, papers, or other documents or 
writings required, shall be liable to punishment 
for contempt either by the council or its commit- 
tee, but with the right to appeal therefrom. Dep- 
ositions may be taken in any investigations of 
professional misconduct as in civil proceedings; 
but the council or the committee hearing the case 
may, in its discretion, whenever it believes that 
the ends of substantial justice so require, direct 
that any witness within the state be brought be- 
fore it. Witnesses giving testimony under a 
subpoena before the council or any committee 
thereof or by deposition shall be entitled to the 
same fees as in civil actions. 

In cases heard before the council or any com- 
mittee thereof, if the party shall be convicted of 
the charges against him, he shall be taxed with 
the cost of the hearings: Provided, however, that 
such bill of costs shall not include any compen- 
sation to the members of the council or commit- 
tee before whom the hearings are conducted. 
(1933, c. 210, s. 12.) ■ 

§ 215(13). Rights of accused person. — Any 

person who shall stand charged with an offense 

[9 



cognizable ]>y the council or any committee there- 
of shall have the right to invoke and have exer- 
cised in his favor the powers of the council and 
its committees in respect of compulsory process 
for witnesses and for the production of books, pa- 
pers, and other writings and documents, and shall 
also have the right to be represented by counsel. 
(1933, c. 310, s. 13.) 

§ 215(14). Designation of prosecutor; compen- 
sation. — Whenever charges shall have been pre- 
ferred against any member of the bar, and the 
council shall have directed a hearing upon the 
charges, it shall also designate some member of 
the bar to prosecute said charges in such hearings 
as may be held, including hearing upon appeals 
in the superior and supreme courts. The coun- 
cil may allow the attorney performing such serv- 
ices at its request such compensation as it may 
deem proper. (1933, c. 210, s. 14.) 

§ 215(15). Records and judgments and their 
effect. — In the case of persons charged with an 
offense cognizable by the council or any commit- 
tee thereof, a complete record of the proceedings 
and evidence taken before the council or any 
committee thereof shall be made and preserved 
in the office of the secretary-treasurer, but the 
council may, upon sufficient cause shown and 
with the consent of the person so charged, cause 
the same to be expunged and destroyed. Final 
judgments of suspension or disbarment shall be 
entered upon the judgment docket of the supe- 
rior eourt of the county wherein the accused re- 
sides, and also upon the minutes of the supreme 
court of North Carolina; and such judgment 
shall be effective throughout the state. 

Whenever any attorney has been deprived of 
his license under the provisions of this article, 
the council, in its discretion, may restore said li- 
cense upon due notice being given and hearing 
had and satisfactory evidence produced of proper- 
reformation of the licentiate before restoration.- 
(1933, c. 210, s. 15.) 

§ 215(16). Annual and special meetings. — There 
shall be an annual meeting of the North Carolina: 
state bar, open to all members in good standing, 
to be held at such place and time after such no- 
tice (but not less than thirty days) as the coun- 
cil may determine, for the discussion of the af- 
fairs of the bar and the administration of justice; 
and special meetings of the North Carolina state 
bar may be called, on not less than thirty days' 
notice, by the council, or on the call, addressed to 
the coun'cil, of not less than twenty-five per cent 
of the active members of the North Carolina state 
bar; but at special meetings no subjects shall be 
dealt with other than those specified in the no- 
tice. Notice of all meetings, whether annual or 
special, majr be given by publication in such 
newspapers of general circulation as the council 
may select, or, in the discretion of the council,, 
by mailing notice to the secretary of the several 
district bars or to the individual active members- 
of the North Carolina state bar. The North Car- 
olina state bar shall not take any action in re- 
spect of any decision of the council or any com- 
mittee thereof relating to admission, exclusion, 
discipline or punishment of any person or other 
action, save after notice in writing of the action 
of the council or committee proposed to be di- 
rected or overruled, which notice shall be given 



§ 215(17) 



BANKS 



§ 217(m)3 



to the secretary-treasurer thirty days before the 
meeting, who shall give, by mail, at least fifteen 
days notice to the members of the North Caro- 
lina state bar, and unless at the meeting two- 
thirds of the members present and voting shall 
favor the motion to direct or overrule. At any 
annual or special meeting ten per cent of the ac- 
tive members of the bar shall constitute a quo- 
rum; but there shall be no voting by proxy. 
(1933, c. 210, s. 16.) 

§ 215(17). Membership fees and list of mem- 
bers. — Every active member of the North Caro- 
lina state bar shall on or before the first day of 
January, nineteen hundred and thirty-four, pay 
to the secretary-treasurer, without demand there- 
for, in respect of the calendar year nineteen hun- 
dred and thirty-three, a membership fee of three 
dollars, and shall thereafter, prior to the first day 
of July of each year, beginning with and includ- 
ing the year nineteen hundred and thirty-four, 
pay to the secretary-treasurer, in respect of the 
calendar year in which such payment is herein 
directed to be made, an annual membership fee 
of three dollars; and in every case the member 
so paying shall notify the secretary-treasurer of 
his correct postoffice address. The said member- 
ship fee shall be regarded as a service charge for 
the maintenance of the several services prescribed 
in this article, and shall be in addition to all fees 
now required in connection with admissions to 
practice, and in addition to all license taxes now 
or hereafter required by law. The said fee shall 
not be prorated: Provided, that no fee shall be 
required of an attorney licensed after this article 
shall have gone into effect until the first day of 
July of the second calendar year (a "calendar 
y-ear" for the purposes of this article being treated 
as the period from January first to December 
thirty-first) following that in which he shall have 
been licensed; but this proviso shall not apply to 
attorneys from other states admitted on certifi- 
cate. The said fees shall be disbursed by the 
secretary-treasurer on the order of the council. 
The secretary-treasurer shall annually, at a time 
and in a law magazine or daily newspaper to be 
prescribed by the council, publish an account of 
the financial transactions of the council, in a 
form to be prescribed by it. The secretary-treas- 
urer shall compile and keep currently correct 
from the names and postoffice addresses for- 
warded to him and from any other available 
sources of information a list of members of the 
North Carolina state bar and furnish to the clerk 
■of the superior court in each county, not later 
than the first day of October of each year, a list 
showing the name and address of each attorney 
for that county who has complied with the pro- 
visions of this article, and thereafter shall notify 
the clerk of the name and address of any addi- 
tional attorney resident in that county who shall 
liave complied with the provisions of this article. 
The names and addresses of such attorneys so 
certified shall be kept available to the public. 
The commissioner of revenue is hereby directed 
to supply the secretarj^-treasurer, from his rec- 
ord of license tax payments, with any informa- 
tion for which the secretary-treasurer may call 
in order to enable him to comply with this re- 
quirement. (1933, c. 210, s. 17.) 

§ 215(18). Saving as to North Carolina bar 



association. — Nothing in this article contained 
shall be construed as affecting in any way the 
North Carolina bar association, or anj^ local bar 
association. (1933, c. 210, s. 18.) 



CHAPTER 5 

BANKS 

Art. 1. Definitions 

§ 216(a). "Bank," "surplus," "undivided prof- 
its," and other words defined. 

The definition of "insolvency" of a bank as set forth 
in this section is correct. State v. Shipman, 202 N. C. 518, 163 
S. E. 657. 

Art. 2. Creation 
§ 217 (m) 1. Reorganization of closed banks. — 

The board of directors of any banking institu- 
tion whose aggregate property (in the opinion of 
such board) shall not be sufficient in amount to 
pay its debts or which (in the opinion of such 
board) may be unable to pay its debts in the or- 
dinary course of business as they mature or which 
may be in the possession of the commissioner of 
banks for liquidation, or which shall be without 
authority to conduct an unrestricted banking 
business, may formulate and propose a plan of 
reorganization. Such reorganization may provide 
for the continuance of the business of such exist- 
ing institution, the formation of a new banking 
institution, state or national, or other corpora- 
tions, or the consolidation of two or more bank- 
ing institutions and may provide for the transfer 
of all or a part of the assets of the existing insti- 
tution to such new or consolidated institution or 
corporation or to trustees, for such consideration 
in money, securities or evidences of debt or in- 
terest of any kind approved by such board. 
(1933, c. 271, § 1.) 

§ 217 (m) 2. Approval by commissioner of banks; 
certification to clerk of superior court. — The plan 
of reorganization shall be filed with the commis- 
sioner of banks. He shall make such study and 
investigation of said plan as he may deem nec- 
essary; and no hearing before him shall be re- 
quired. If the commissioner approves the plan, 
he shall cause a written outline under his hand 
and seal thereof to be filed in the office of the 
clerk of the superior court of the county in which 
the existing banking institution has its principal 
place of business, and shall at the same time de- 
liver to the said clerk of the superior court at 
least one hundred copies of such outline which 
shall be available for inspection. The commis- 
sioner of banks shall also promptly file one hun- 
dred copies of such outline in the office of the 
clerk of the superior court of each county in 
which the banks shall have a place of business. 
The said outline shall, among other things, con- 
tain a statement of the amount due depositors 
and other creditors of the existing institution, as 
shown on its books as of the close of business on 
the last day on which it was open for unrestricted 
banking business or, if it still be open for such 
business, on the day next preceding the date of 
filing of the said outline with the commissioner 
of banks. (1933, c. 271, § 2.) 

§ 217(m) 3. Notice of reorganization; objec- 
tions. — -The commissioner of banks shall cause to 
be published, at least once a week for two weeks, 



[10] 



§ 217(ni)4 



BANKS 



§ 217(m)9 



in at least one newspaper in every county in 
which the institution maintains an office or place 
of business a notice briefly summarizing the plan 
of reorganization, stating where the outline has 
been filed in accordance with section 217(m) 2, 
and admonishing all stockholders, depositors, 
creditors and other interested persons to file with 
the clerk of the superior court of the county 
where the principal place of business of the insti- 
tution is located, within thirty days from the date 
of first publication, any objection which they or 
any of them may have to said plan of reorganiza- 
tion. If there is no daily newspaper published 
in any county in which such bank has an office 
or place of business, it will be sufficient for such 
publication to be made in a daily newspaper gen- 
erally circulating in said county. The affidavits 
of the publishers of the respective newspapers in 
which said notices are published, when filed in 
the office of the clerk of superior court of the 
county where the principal office of the institu- 
tion is located, shall be prima facie evidence of 
compliance with this section. (1933, c. 271, s. 3.) 

§ 217 (m) 4. Notice of plan to stockholders, de- 
positors and creditors. — The commissioner of 
banks shall also require the banking institution 
filing said plan to cause a copy of the published 
notice to be mailed or sent, within seven days 
from the first date of publication, to all stock- 
holders, depositors and other creditors of such 
banking institution at their respective addresses 
shown on the records of the institution. The 
president or other proper officer of such banking 
institution shall file in the office of the clerk of 
the superior court of the county where the prin- 
cipal office of the institution is located a certifi- 
cate to the effect that copies of such notice have 
been mailed; and said certificate shall be prima 
facie proof that the provisions of this section have 
been complied with. Any failure of any particu- 
lar stockholder, depositor, creditor or other in- 
terested party to receive such notice shall not af- 
fect the validity of the reorganization. (1933, c. 
271, s. 4.) 

§ 21 7 (m) 5. Filing objections to reorganization; 
determination of value of claims of objectors. — 

Any depositor, creditor, stockholder or other in- 
terested person who shall not approve the plan, 
may; within thirty days from the first publication 
of the notice provided for by section 217 (m) 3, 
file with the clerk of the superior court of the 
county in which the principal place of business 
of said banking institution is located an objection 
to said plan and an application for the ascer- 
tainment of the fair liquidating value of his 
claim, stock or other interest. At the end of the 
period within which such objections and ap- 
plication must be filed, the judge of the superior 
court, resident in the district in which said county 
is located (or if such judge be not available, the 
judge holding the courts of such district) shall 
determine the present cash value of the interest 
of each party filing such objection on the basis 
of a judicial liquidation of said institution. (1933, 
c. 271, s. 5.) 

§ 217 (m) 6. Pa5mient of claims thus valued; 
apportionment of assets to objectors. — The 
court may order such liquidating value paid in 
cash or, in lieu thereof, paid in kind. In the 
event such payment is ordered in kind, assets 

[1 



divisible in kind shall be so apportioned. With 
respect to assets indivisible in kind, the court 
may apportion said assets by allotting to the ob- 
jecting party securities or certificates of interest 
issued by the institution or by a corporation or 
by a trustee, such securities or certificates of in- 
terest to reasonably and fairly represent the share 
of such non-assenting party in such indivisible 
assets. The entire amount allotted to such non- 
assenting parties shall be delivered and paid to 
the commissioner of banks as receiver for liqui- 
dation for the benefit of the non-assenting par- 
ties. (1933, c. 271, s. 6.) 

§ 217 (m) 7. Reorganization binding on all un- 
less objected to by one-third of interested parties. 

— ^If, within said period of thirty days, less than 
thirty-three and one-third percent in interest of 
the depositors and other creditors of such bank- 
ing institution (as shown on the outline filed in 
the office of the clerk of the superior court as 
provided in section 217(m) 2) shall file such ob- 
jection and application with the clerk of the said 
superior court, the plan of reorganization shall be 
binding upon all such depositors and other credi- 
tors as fully as if they had assented to said plan. 
If, within said period of thirty days, less than 
thirty-three and one-third per cent in interest of 
the stockholders of said institution shall have 
made objection and application to the said clerk 
of the superior court, said plan shall be binding 
upon all stockholders as fully as if they had as- 
sented to said plan. No stockholders, depositors, 
or other parties in interest in said banking insti- 
tution shall, however, be subjected by such plan 
of reorganization to any personal liability with- 
out their express consent. (1933, c. 271, § 7.) 

§ 217 (m) 8. Rights of objectors preserved.— 

The provisions of section 217 (m) 7 shall not de- 
prive the objecting stockholders, depositors, cred- 
itors and other interested parties of the right of 
valuation of their interest as provided in sections 
217(m) 5 and 217(m) 6. Such valuation shall not, 
however, postpone or delay consummation of 
such reorganization plan. If the same is con- 
summated prior to the expiration of said thirty- 
day period, the reorganized or new institution 
shall be liable and responsible for the perform- 
ance of the decree in said proceedings. Such 
reorganized or new institution may, however, at 
any time within seven days after such decree, 
abandon said plan of reorganization as it applies 
to any particular institution and restore said 
property to such institution. (1933, c. 271, s. 8.) 

§ 217(m) 9. Two or more banks may reorganize 
together; branch banks allowed; subscription to 
capital stock. — Any one or more banking institu- 
tions, for the purpose of continuing all or a por- 
tion of its business or segregating its new from 
its old depositors, or for the purpose of otherwise 
promoting the interest of its stockholders, de- 
positors, creditors and other interested parties, 
may, with the approval of the commissioner of 
banks, organize one or more new banking institu- 
tions, either state or national, with such capital 
and upon such terms as the board of directors of 
such existing institutions may determine. Any 
such banking institution which may take part in 
the organization of such new banking institution 
and any other banking institution with similar 
approval, may subscribe to the capital stock of 

1] 



§ 217(m)10 



BANKS 



§ 218(c) 



such new banking institution and pay for said 
subscription with its funds or assets, and there- 
after hold and exercise all the rights of stock- 
holders. (1933, c. 271, s. 9.) 

§ 217(m) 10. Stockholders not relieved. — Noth- 
ing contained in this article shall be construed 
to relieve any stockholder of any banking in- 
stitution, who is such of record at the time of 
the passage of this article from the liability im- 
posed by law. (1933, c. 271, s. 10.) 

§ 217(m) 11. Trust business preserved upon 
reorganization; transfer of trust estates. — If, 

pursuant to any plan of reorganization provided 
for under this article, the trust business of any 
banking institution be transferred to a new or 
other banking institution, state or national, hav- 
ing authority to act in fiduciary capacities, such 
plan of reorganization, upon being consummated 
and carried into effect, shall operate to transfer 
to such new or other banking institution and 
its successor or successors any and all appoint- 
ments of the transferor banking institution in 
any fiduciary capacity, whether made by order 
of any court, or independently of any court, in- 
cluding all appointunents of such transferor 
banking institution in any fiduciary capacity 
made by any will or other instrument executed 
prior to the said plan of reorganization being 
consummated and carried into effect, as ef- 
fectually as if said new or other banking in- 
stitution had been appointed by a court of com- 
petent jurisdiction as successor to the transferor 
banking institution in each fiduciary capacity in 
which said transferor banking institution had 
theretofore been acting, or to which it might 
have been appointed by will or other instrument 
theretofore executed. If a new banking institu- 
tion is organized pursuant to any plan of reor- 
ganization provided for under this article, or, in 
case of a national bank if reorganized under the 
provisions of the act of congress of March 9, 
1933, known as the "bank conservation act," 
any of said existing banking institutions sub- 
scribing to its capital stock may transfer to 
such institution all its existing trust estates and 
property held in a fiduciary capacity, and all 
the appointments of the transferor institution in 
any fiduciary capacity, whether made by order 
of any court or independently of any court, in- 
cluding all appointments of such transferor in- 
stitution in any fiduciary capacity made by any 
will or other instrument executed prior to said 
transfer, as effectively as if said new institution 
had been appointed by a court of competent 
jurisdiction as successor to the transferor in- 
stitution in each fiduciary capacity in which 
said transferor institution had theretofore been 
acting or to which it might have been appointed 
by will or other instrument theretofore executed. 
(1933, c. 271, s. 11; c. 499.) 

§ 217(m) 12. Rules and regulations. — The 

commissioner of banks, with the approval of 
the advisory banking commission, shall have the 
power to make and promulgate from time to 
time such rules and regulations as he may deem 
necessary or advisable to carry out the provi- 
sions of this article. (1933, c. 271, s. 12.) 

§ 217 (m) 13. P-urpose and intent of statute; 
time limit for reorganization. — This article is 

[1 



enacted in view of the banking emergency which 
has arisen and which has been accompanied by 
wide-spread unemploj'ment, decreased values, un- 
timely withdrawals of deposits, and other con- 
ditions beyond the control of the state; and the 
purpose of this article is to serve the welfare of 
the state as a whole and the depositors and credi- 
tors of banking institutions, and to promote 
justice, prevent distress and discrimination, and 
to establish an orderly method of reconstruction 
and further to carry out the purposes of sections 
220(a) 1; 220(gg) bill 943 enacted by the gen- 
eral assembly of nineteen thirty-three [§§ 220- 
(gg), 323(l)-222(n), 222(o) 1, 264(a)-264(l) of 
this code]. Therefore, this article shall apply 
only to plans of reorganization presented to the 
commissioner of banks for approval prior to 
January 1, 1935. (1933, c. 271, s. 13.) 

Art. 3. Dissolution and Liquidation 
§ 218(a). Voluntary liquidation. 

Approval of Stockholders Not Necesseiry to Sale to Beuik. 

— For a valid sale of assets to another bank the approval 
of the stockholders of the selling: bank is not required by 
this section and the section is not invalid for that reason. 
Planters' Sav. Bank v. Barley, 204 N. C. 297, 299, 168 S. 
E. 225. 

§ 218(c). Liquidation of banks; when com- 
missioner to take possession. 

(12) List of Claims Presented and Deposits; 
Copies; Proviso. — Upon the expiration of the 
time fixed for presentation of claims, the chief 
state bank examiner, or the duly appointed agent, 
shall make a full and complete list of the claims 
presented and of the deposits as shown, includ- 
ing and specifying any claims or deposits which 
have been rejected by him, and shall file one 
copy in the oflice of the clerk of the superior 
court in the pending action, and shall keep one 
copy on file with the inventory in the office of 
the bank for examination. Any indebtedness 
against any bank which has been established or 
recognized as a valid liability of said bank before 
it went into liquidation, for which no claimant 
has filed claim, and/or any liability for which 
claim has been filed and disapproved, shall be 
listed in the office of the clerk of the superior 
court of the county in which the bank is located, 
by the liquidating agent, and the dividends ac- 
cruing thereto shall be paid into the said office 
and shall be held for a period of three months 
after said liquidation is completed, and shall then 
be paid to the escheator of the University of 
North Carolina. Any claim which may be 
presented after the expiration of the time fixed 
for the presentation of claims in the notice here- 
inbefore provided shall, if allowed, share pro rata 
in the distribution only of those assets of the 
bank in the hands of the corporation commis- 
sion, and undistributed at the time the claim is 
presented: Provided, that when it is made to ap- 
pear to the judge of the superior court, resident 
or presiding in the countj^ that the claim could 
not have been filed within said period, said judge 
may permit those creditors or depositors who 
subsequently file their claim to share as other 
creditors. 

(15) Deposit of Funds Collected. — All funds 
collected by the commissioner of banks, in liq- 
uidating any bank, shall be deposited from time 
to time in such bank or banks as may be selected 
by him, and shall be subject to the check of the 



§ 218(c) 1 



BANKS 



§ 218(u) 



commissioner of banks. The payment of inter- 
est on the net average of such sums on deposit 
shall be controlled by the governor and council 
of state, who shall have full power and authority 
to determine for what periods of time payment 
of interest on such deposits shall or shall not be 
required, and to fix the rate of interest to be 
paid thereon. (Acts 1927, c. 113; 1931, c. 4, s. 
17; 1931, €. 243, s. 5, c. 385, c. 405; 1933, c. 175, 
s. 2, c. 546.) 

As to indivichial liability of stockholders see § 219(a) and 
annotations thereunder. 

Editor's Note.— - 

By c. 546 of Public La.ws 1933 subsection (12) of this sec- 
tion was amended by the addition of the second sentence re- 
lating to dividends on unclaimed deposits in closed banks. 
Prior to the Amendment of 1933, P. ly. c. 175, s. 2, subsec- 
tion 15, required a deposit a net average of three per cent 
per annum. 

As the two subsections shown above were the only ones af- 
fected by the 1933 acts they are the only ones set out in this 
supplement. 

For an act regulating the time limit of liquidation of 
banks in Rutherford County, see Public Laws 1933. c. 567. 
As to act, applicable only in Buncombe County, providing 
that stockholders of closed banks shall be required to pay 
only one asisessment, see Acts 1933, c. 27, p. 21. 

In General. — 

The functions of the Commissioner of Banks are not lim- 
ited to the provisions of this section, and the courts of 
equity have inherent power to permit the Commissioner of 
Banks to e.xercise the functions of a chancery receiver in 
matters which are not inconsistent with his statutory du- 
ties. Blarles v. Hood, 203 N. C. 56, 164 S. V^. 828. 

Preferences. — 

The words "or otherwise" in subsec. 14 of this section, are 
to be construed in connection with the other parts of the 
statute, meaning any mode of transportation analogous to 
those specified in the statute, requiring "remittin.g" or 
"sending" the money to the payee of the check. Morecock 
V. Hood, 202 N. C. 321. 162 S. E. 730. 

Same — Cashier's Check. — Where a bank debits an account 
with the amount of a check drawn by the depositor and 
issues its cashier's check for the amount but is placed in a 
receiver's hands before remitting the proceeds to a third 
person as instructed to do by the depositor, the cashier's 
check does not constitute a preference as defined by this 
section. Board of Education v. Hood, 204 N. C. 353, 168 S. 
E. 522. 

If a depositor in a bank takes a cashier's check for his 
deposit, and thereafter surrenders the cashier's check, pur- 
chasing with the proceeds, a draft for the purchase price 
of Liberty Bonds, and the bank is closed before the draft is 
paid, such transaction does not constitute a preference as 
defined by this section. In re Bank of Pender, 204 N. C. 
143, 144, 167 S. E. 561. 

Same — Draft on Another Bank. — Under subsec. 14 of this 
section a depositor who presents his check for payment over 
the counter of a bank which charges his account with the 
amount thereof and gives him a draft drawn on another 
bank which he deposits in a third bank, and the draft is 
returned unpaid, is not entitled to a preference in assets 
of the bank drawing the draft, the transaction not coming 
vvithin the provisions of the statute for a preference when a 
bank receives a check by "mail," express or otherwise 
. . . with request that remittance be made therefor." 
Morecock v. Hood. 202 N. C. 321, 162 S. E. 730. 

Right to Repudiate Subscription for Fraud. — Even if it 
be conceded that this section imdertook to deal solely and 
exclusively with the methods of distribution of special funds 
arising from stockholders' assessments, nevertheless, the 
stockholder has the right to repudiate his stock subscrip- 
tion procured through the fraud of his own corporation, 
even after insolvency or bankruptcy. Hood v. Martin, 203 
N. C. 620, 166 S. E. 793. 

Appeal from Assessment. — Where an appeal to the Supe- 
rior Court is taken from an assessment made according to 
the provisions of this section, ordinarily the only issues of 
fact which may be raised in the Superior Court are whether 
the appellant was in fact a stockholder, and if so, the num- 
ber of shares owned by him. Corporation Comm. v. Mc- 
Lean, 202 N. C. 77, 161 S. E. 854.' 

§ 218(c) 1. Sale by commissioner of banks of 
corporate stocks in banks being liquidated.^ — ■ 

The banking commission, when liquidating any 



defunct bank or trust company, having among 
its assets stock in resident corporations, joint 
stock companies or limited partnerships, shall 
sell such stock at public auction at the courthouse 
door of the county wherein such bank or trust 
company was doing business, after first adver- 
tising the stock for sale at the courthouse door 
and in some newspaper, if published, in said 
county for a period of four successive weeks next 
preceding the sale thereof: Provided, that if, in 
the opinion of the commissioner of banks, the 
said stock fails to bring a fair and reasonable 
price at such sale, he shall not recommend the 
confirmation of such sale to the court but within 
ten days from the date of sale shall by written 
notice to the purchaser reject the bid and shall 
cause the stock to be re-advertised for sale for 
a period of two weeks next preceding the date 
of sale, as hereinbefore provided, and he may 
continue to re-advertise and offer for sale such 
stock in the aforesaid manner until the same 
shall bring a fair and reasonable price: Provided 
however, that this act shall not apply to stocks 
and bonds listed on New York stock exchange or 
any other stock exchange. (1933, c. 238.) 

§ 218(e). Statute relating to receivers appli- 
cable to insolvent banks. 

Effect in General. — This section serves to confer upon the 
commissioner of Banks possession arud the right to posses- 
sion of all property, rights, etc., with certain enumerated 
powers together with such incidental powers as are neces- 
sary to a sale of the insolvent bank's assets Blades v. 
Hood, 203 N. C. 56, 164 S. E. 828. 

§ 218 (p) 1. Commissioner to report to secre- 
tary of state certain matters relative to liquida- 
tion of closed banks; publication. — The commis- 
sioner of banks of the state of North Carolina 
shall on or before the first day of June, 1933, and 
on the first day of January and July of each year 
thereafter file with the secretary of the state of 
North Carolina a report showing all banks un- 
der liquidation in the state of North Carolina, 
and the names of any and all auditors together 
with the amounts paid to them for auditing each 
of said banks, and the names of any and all at- 
torneys employed in connection with the liquida- 
tion of said banks together with the amount paid 
or contracted to be paid to each of said attorneys. 
If any attorney has been employed on a fee 
contingent upon recovery said report must state 
in substance the contract. 

Within five days from the receipt of said re- 
port the secretary of the state of North Carolina 
shall cause same to be published one time in 
some newspaper published in each county in 
which a bank or banks are under liquidation, if 
there be a newspaper published in said county. 
If not, the secretary of the state of North Caro- 
lina shall cause a copy of said report to be posted 
at the courthouse door in said count}'. (1933, c. 
483.) 

Art. 3A. Reopening of Closed Banks 

§ 218(u). Fiduciaries authorized to enter de- 
positors' agreements. — All executors, adminis- 
trators, guardians, trustees, commissioners, and 
others, occupying and acting in fiduciary capaci- 
ties be and they are hereby authorized and em- 
powered to sign in their fiduciary capacities any 
agreement offered to depositors intended and 
designed to enable any bank, national or state, 



[13] 



§ 218(v) 



BANKS 



§ 219 (a) 2 



doing business in North Carolina prior to March 
sixth, nineteen hundred and thirty-three, to 
reopen: Provided the plan for the reopening 
of such bank has been first approved by the comp- 
troller of the currency in the case of national 
banks, by the commissioner of banks in the 
case of state banks, and: Provided further, that 
such fiduciary first obtain the consent and ap- 
proval of the clerk of the superior court of the 
county in which such fiduciary was appointed 
and of the resident judge, or the judge holding 
the courts of the judicial district in which such 
county is situate, such consent and approval to 
be entered upon the original record of the ap- 
pointment of such fiduciaries in the counties in 
which such fiduciaries were appointed: Provided, 
that nothing in this act shall be construed to 
release the bondsman of any such guardian, ward 
or other fiduciary signing such release. (1933, 
c. 2C7.) 

Art. 3B. Sale of Deposits in Closed Banks 

§ 218(v). Purchasers may offset against debts 
due bank. — Any person, firm or corporation, so- 
ciety or organization, by whatsoever name desig- 
nated, having any moneys or funds on deposit 
in any bank in Buncombe, Cherokee, Craven, 
Halifax, Haywood, Henderson, Jackson, John- 
ston, Macon, Robeson, Rutherford, Sampson, 
Stanly, Wilson and Transylvania, Alexander, 
Avery, Beaufort, Bertie, Bladen, Camden, Car- 
teret, Catawba, Chatham, Chowan, Cleveland, 
Duplin, Edgecombe and all the municipalities 
therein with the exception of the town of Pine 
Tops, Gaston, Gates, Hertford, Hoke, Jones, 
Lee, Lenoir, Lincoln, Mecklenburg, Montgomery, 
Moore, Nash, New Hanover, Northampton, Pam- 
lico, Pasquotank, Perquimans, Pitt, Polk, Rich- 
mond, Rockingham, Scotland, Stokes, Tyrrell, 
Wayne, Wilkes Counties, North Carolina, that is 
now closed, which has been closed eighteen 
months or longer prior to the ratification of the 
amendment of this section, and which has not 
paid its depositors and other creditors in full, 
shall, from and after the ratification of this act, 
have authority to sell and convey such accounts 
or deposits to any person, firm or corporation 
that may desire to purchase same and who owe 
such closed banks any money, and such person, 
firm or corporation purchasing such account or 
deposit shall be entitled to apply such account 
or deposit to the discharge of any debts owing 
b}' them to such closed banks at the full face 
value of such account or deposit. (Public Local 
Laws 1933, c. 344; 1933, c. 540, s. 1.) 

Editor's Note. — Public Local Laws 1931, c. 344 applicable 
only to Buncombe County was amended by Public Laws, c. 
540, s. 1, ratified May 15, 1933, so as to apply to the other 
counties named, and to banks which had been closed eighteen 
months or longer. 

For act applicable only to Robeson County, see Public Laws 
1933, c. 541, amending c. 540. s. 2. 

Art. 4. Stockholders 

§ 219(a). Stockholders, individual liability of. 

— The stockholders of every bank organized un- 
der the laws of North Carolina, whether under 
the general law or by special act, shall be indi- 
vidually responsible, equally and ratably, and not 
one for another, for all contracts, debts, and en- 
gagements of such corporation, to the extent of 
the amount of their stocks therein at par value 

[1 



thereof, in addition to the amount invested in 
such shares, except as otherwise provided. The 
term stockholders, when used in this chapter, 
shall apply not only to such persons as appear 
by the books of the corporation to be stockhold- 
ers, but also to every owner of stock, legal or 
equitable, although the same may be on such 
books in the name of another person; but shall 
not apply to a person who may hold the stock as 
collateral for the payment of a debt, (1921, c. 
4, s. 21; 1933, c. 159.) 

Editor's Note. — 

Public Laws 1933, c. 159 added the words "except as 
otherwise provided," appearing at the end of the first sen- 
tence of the section. 

Entry on Books as Evidence of Ownership. — 

The books of a bank establish, prima facie, who are stock- 
holders therein, and those whose names appear thereon as 
stockholders are ordinarily liable, upon the bank's becom- 
ing insolvent, for the statutory liability imposed upon them 
by this section. Corporation Comm. v. McLean, 202 N. C. 
77, 161 S. E. 854 

Defenses. — 

Same — Tranfers.— See § 219(d) and notes thereto. 

Return of Assessment to Stockholders. — By reason of the 
liability under this section, stockholders are not entitled to 
a return to them of any part of the amounts which they 
have paid to the commissioner of banks, in discharge of 
such liability, until all the claims of depositors and other 
creditors against the bank, including interest, on the amounts 
of such claims from the date on which the said commission 
took possession of the assets of the insolvent bank for liq- 
uidation, have been paid. Hackney v. Hood, 203 N. C. 486, 
489, 166 S. E. 323. 

§ 219(a) 1. New state banks to set up surplus 
fund in lieu of double assessment. ■ — • The stock- 
holders of any bank hereafter organized under 
the laws of the state of North Carolina shall pay 
in, in cash, a surplus fund in lieu of the additional 
liability imposed upon such stockholders by sec- 
tion 21, chapter 4, Public Laws of 1921 or section 
1, chapter 121, Public Laws of 1925 [§§ 219(a) and 
225(o) of this Code], which surplus fund shall 
equal fifty per centum of its capital stock, and 
said bank shall from the funds then in its hands 
purchase bonds of the state of North Carolina or 
the United States of America equal in face value 
to fifty per centum of the par value of the capi- 
tal stock of such bank, which bonds shall be de- 
posited with a federal reserve bank or other bank 
approved by the commissioner of banks for such 
purpose, and such bonds and all bonds substi- 
tuted or exchanged therefor shall be held by the 
receiving bank for the sole benefit of the credi- 
tors of said depositing bank in case of liquida- 
tion. The federal reserve bank or other bank 
shall issue its receipt therefor in the manner and 
form to be provided for by the commissioner of 
banks. The interest on the said bonds shall be 
invested in bonds of the state of North Carolina 
or the United States of America until the origi- 
nal investment and subsequent investments shall 
equal, in face value of such bonds, the total 
amount of the capital stock of such bank, after 
which time the interest on such bonds shall be 
paid to the bank. Whenever any substitution or 
exchange is made in the bonds deposited, such 
substitution or exchange shall be of bonds of the 
state of North Carolina or the United States of 
America of equal par value. (1933, c. 159, s. 2.) 

§ 219(a) 2. Existing banks may make same 
provision. — • Any bank organized and operating 
under the laws of the state of North Carolina up- 
on the date of the ratification of this act, may 
provide, in lieu of the additional or double liabil- 

4] 



§ 2ie(a)3 



BANKS 



§ 220(a) 



ity of its stockholders provided in section 21, 
chapter 4, Public Laws 1921 or section 1, chap- 
ter 121, Public Laws 1925 [§§ 219(a) and 225(o) 
of this Code], a fund for the purpose of purchas- 
ing bonds of the state of North Carolina or of 
the United States of America for deposit as here- 
inbefore provided for new banks organized un- 
der the laws of the state of North Carolina in 
the following manner; 

(a) Whenever the commissioner of banks shall 
certify that in his opinion its unimpaired capital 
and surplus funds equal one hundred and fifty 
per centum of the par value of its capital stock, 
the stockholders at a regular meeting or at a spe- 
cial meeting called for the purpose may, by a ma- 
jority vote, approve such action. 

(b) Notice of such action on the part of the 
stockholders shall be published in some news- 
paper published in the city or town where the 
bank is located or if no paper is published in the 
city or town, then in a newspaper published in 
the county or in a newspaper having general cir- 
culation in said county, once each week for a pe- 
riod of ninety days immediately following such 
action by the stockholders. 

(c) Upon completion of the publication here- 
in provided the board of directors may approve 
such action of the stockholders and thereupon file 
with the commissioner of banks certified copy of 
(1) the action of the stockholders, (2) the no- 
tice, (3) affidavit of publication, and (4) action 
of the board of directors. 

(d) The commissioner of banks shall, having 
first determined that the financial condition of 
such bank will not be weakened by such action, 
issue his order to the board of directors of the 
bank, which shall be recorded in the office of the 
clerk of the superior court of the county where 
the bank operates, authorizing such action and 
investment. 

The investment, when made, shall be in like 
manner and for the same purposes as provided 
herein in the case of the organization of new 
banks, and shall be held and maintained as in 
such cases herein provided. (1933, c. 159, s. 3.) 

§ 219(a) 3. Provisions mandatory on banks 
hereafter organized. — 'No new bank organized un- 
der the laws of the state of North Carolina shall 
be permitted to operate until it has complied with 
the provisions hereof. The stockholders of any 
bank organized and operating under the laws of 
the state of North Carolina upon the date of the 
ratification of this act which shall fully comply 
with the provisions hereof, shall be by such full 
compliance relieved of the stockholders' addi- 
tional or double liability imposed by section 21, 
chapter 4, Public Laws of 1921, or section 1, 
chapter 121, Public Laws of 1925 [§§ 219(a) and 
225 (o) of this Code]. The compliance herewith 
shall be deemed to be complete upon the accept- 
ance by the commissioner of banks of the re- 
ceipt herein provided for. (1933, c. 159, s. 4.) 

§ 219(a) 4. Supervision of commissioner of 
banks. — -Any advertisement, on the part of any 
bank now or hereafter to be organized and op- 
erating under the laws of the state of North Car- 
olina, having reference to the surplus fund here- 
in provided for, shall be subject to the approval 
and regulation of the commissioner of banks. 
(1933, c. 159, s. 5.) 

[1 



§ 219(c). Executors, trustees, etc., not per- 
sonally liable. 

Extent of Section. — 

See Corporation Comm. v. Latham, 201 N. C. 342, 343, 160 
S. K. 295, following the statement under this catchline in 
the Code of 1931. 

§ 219(d). Transferrer not liable, when. 

A transfer of bank stock to an infant does not relieve the 
transferer of his statutory liability, under this section, an 
infant being incapable of making a binding contract. In re 
Goldsboro Sav., etc., Co., 203 N. C. 238, 165 S. E- 705. 

Trust Created in Good Faith. — Where the owner of shares 
of stock in a bank transfers' some of his stock to his sons 
in trust for his grandchildren, but there is nothing on the 
books of the bank to indicate for whom the trust was 
created, and the transfer is regularly made in good faith 
when the bank was solvent, Held: upon the bank becoming 
insolvent the transferer is not liable under this section for 
the statutory assessment against the stock. Corporation 
Comm. V. Latham, 201 N. C. 342, 160 S. E. 295. 

Where the owner of bank stock has had the shares trans- 
ferred on the books of the bank to a trustee for the benefit 
of a minor, and the transfer is made in good faith when the 
bank is solvent: Held, the transferer is not liable for the 
statutory assessment of the stock upon the bank's insolv- 
ency, the trustee being of full age and qualified to perform 
all the duties required of him in his fiduciary capacity. In 
re Goldsboro Sav., etc., Co., 203 N. C. 238, 165 S. E. 705. 

Art. 5. Powers and Duties 

§ 220(a). General powers. — In addition to the 
powers conferred by law upon private corpora- 
tions, banks shall have the power: 

1. To exercise by its board of directors, or 
duly authorized officers and agents, subject to 
law, all such powers as shall be necessary to 
carry on the business of banking, by discounting 
and negotiating promissory notes, drafts, bills of 
exchange, and other evidences of indebtedness, 
by receiving deposits, by buying and selling ex- 
change, coin, and bullion, by loaning money on 
personal security or real and personal property. 
Such corporations at the time of making loans 
or discounts may take and receive interest or dis- 
counts in advance. 

2. To adopt regulations for the government 
of the corporation not inconsistent with the con- 
stitution and laws of this state. 

3. To purchase, hold, and convey real estate 
for the following purposes: 

(a) Such as shall be necessary for the con- 
venient transaction of its business, including fur- 
niture and fixtures, with its banking offices and 
other apartments to rent as a source of income, 
which investment shall not exceed fifty per cent 
of its paid-in capital stock and permanent sur- 
plus: Provided, that this provision shall not ap- 
ply to any such investment made before the ninth 
day of March, one thousand nine hundred and 
twenty-one. Provided further, that the commis- 
sioner of banks may in his discretion authorize 
the continuance of investments made prior to the 
first day of February, one thousand nine hundred 
and twenty-five, of the character described in 
this paragraph: Provided, further, that the com- 
missioner of banks may, in his discretion, au- 
thorize any bank located in a city having a pop- 
ulation of more than ten thousand according to 
the last United States census, to invest more 
than fifty percent of its capital and permanent 
surplus in its banking house, furniture, and fix- 
tures. 

(b) Such as is mortgaged to it in good faith 
by way of security for loans made or moneys due 
to such banks. 

5] 



§ 220(b) 



BANKS 



§ 220 (r) 



(c) Such as has been purchased at sales upon 
foreclosures of mortgages and deeds of trust held 
or owned by it, or on judgments or decrees ob- 
tained and rendered for debts due to it, or in set- 
tlements affecting security of such debts. All 
real property referred to in this subsection shall 
be sold by such bank within one year after it is 
acquired, unless, upon application by the board 
of directors, the commissioner of banks extends 
the time within which such sale shall be made. 
Any and all powers and privileges heretofore 
granted and given to any person, firm, or corpo- 
ration doing a banking business in connection 
with a fiduciary and insurance business, or the 
right to deal to any extent in real estate, incon- 
sistent with this chapter, are hereby repealed. 

4. Nothing contained in this section shall be 
deemed to authorize banking corporations to en- 
gage in the business of dealing in investment se- 
curities, either directly or through subsidiary cor- 
porations: Provided, however, that the term "deal- 
ing in investment securities" as used herein, shall 
not be deemed to include the purchasing and sell- 
ing of securities without recourse, solely upon 
order, and for the account of, customers; and 
provided further, that "investment securities," as 
used herein, shall not be deemed to include ob- 
ligations of the United States, obligations of the 
state of North Carolina, and/or obligations of 
any political subdivision thereof, or of cities, 
towns, or other corporate municipalities in the 
state of North Carolina. Any provision in con- 
flict with this subdivision contained in the Ar- 
ticles of Incorporation heretofore issued to any 
banking corporation is hereby revoked. (1921, c. 
4, s. 26; 1923, c. 148, s. 5; 1924, c. 67; 1925, c. 279; 
1927, c. 47, s. 5; 1931, c. 243, s. 5; 1933, c. 303, 
ss. 1, 2.) 

Editor's Note.— 

Public Laws 1933, c. 303 added paragraph 4 of this section, 
relating to dealings in securities. 

§ 220(b). Limitations on investments or secu- 
rities. — The investment of any bonds or other 
interest-bearing securities of any one firm, individ- 
ual or corporation, unless it be the interest-bear- 
ing obligations of the United States, state of 
North Carolina, city, town, township, county 
school district, or other political subdivision of 
the state of North Carolina, shall at no time be 
more than twenty per cent of the unimpaired capi- 
tal and permanent surplus of any bank to an 
amount not in excess of two hundred and fifty 
thousand dollars; and not more than ten per cent 
of the unimpaired capital and permanent surplus 
in excess of two hundred and fifty thousand dol- 
lars: Provided, that nothing in this section shall 
be construed to compel any bank to surrender or 
dispose of any investment in the stock or bonds 
of a corporation owning the lands or buildings oc- 
cupied by such bank as its banking home, if such 
stocks or bonds were lawfully acquired prior to 
the ratification of this act. (1921, c. 4, s. 27; 
1927, c. 47, s. 6; 1931, c. 243, s. 5; 1933, c. 359.) 

Editor's Note. — 

By Public Laws 1933, c. 359, provisos, formerly appearing 
in the section, permitting restricted investments in stock or 
bonds of a corporation owning the building or land occupied 
by the bank, were omitted. 

§ 220(d). Loans, limitations of. 

Loss of Assets Must Result. — In an action against the 
managing officials of a bank for wrongful depletion of as- 
sets in mismanagement of the affairs of the bank in making 



loans in excess of the limit set forth in this section, the evi- 
dence is insufficient to be submitted to a jury, if it appears 
that no loss to the assets of the bank has been caused by the 
acts of the officials. Gordon v. Pendleton, 202 N. C. 241, 
162 S. E. 546. 

§ 220(e). Investment and loan limitation, sus- 
pension of. — The board of directors of any bank 
may, by resolution duly passed at a meeting of 
the board, request the commissioner of banks to 
temporarily suspend the limitations on loans and 
investments as same may apply to any particu- 
lar loan or investment, which said bank desires 
to make in excess of the provisions of sections 
220(b), 220(c), and 220(d). Upon receipt of a 
duly certified copy of such resolution, the com- 
missioner of banks may, in his discretion, sus- 
pend the limitation on loans and investments -in 
so far as it would apply to loans or investments 
which such bank desires to make: Provided fur- 
ther, that the power granted to the commissioner 
of banks in this section shall not be exercised by 
him on and after the first day of January, one 
thousand nine hundred and thirty-four, except in 
the following instances and manner: Where an 
excessive loan is paid, one-half of the excess dur- 
ing the year one thousand nine hundred and 
thirty-four and the balance of the excess during 
the year one thousand nine hundred and thirty- 
five, the commissioner of banks shall have au- 
thority to permit the bank to carry such exces- 
sive loan. The commissioner of banks may ap- 
prove the carrying of an excessive loan for not 
more than one hundred and twenty days and 
when such excessive loan is amply secured. (1921, 
c. 4, s. 30; 1931, c. 243, s. 5; 1933, c. 239, s. 1.) 

Editor's Note. — 

The proviso at the end of this section, relating to power 
of commissioner over excessive loans, was added by Public 
Laws 1933, c. 239. 

§ 220(r). Establishment of branches. — Any bank 
doing business under this chapter may establish 
branches in the cities in which they are located, 
or elsewhere, after having first obtained the writ- 
ten approval of the commissioner of banks, which 
approval may be given or withheld by the com- 
missioner of banks, in his discretion, and shall not 
be given until he shall have ascertained to his sat- 
isfaction that the public convenience and advan- 
tage will be promoted by the opening of such 
branch. Such branch banks shall be operated as 
branches of and under the name of the parent 
bank, and under the control and direction of the 
board of directors and executive officers of said 
parent bank. The board of directors of the parent 
bank shall elect a cashier and such other officers 
as may be required to properly conduct the busi- 
ness of such branch, and a board of managers or 
loan committee shall be responsible for the con- 
duct and management of said branch, but not of 
the parent bank or of any branch save that of 
which they are officers, managers, or committee: 
Provided, that the commissioner of banks shall not 
authorize the establishment of any branch, the 
paid-in capital stock of whose parent bank is not 
sufficient in an amount to provide for the capital 
of at least twenty-five thousand dollars for the 
parent bank, and at least twenty-five thousand dol- 
lars for each branch which it is proposed to estab- 
lish in cities or towns of three thousand popula- 
tion or less: nor less than thirty thousand dollars 
in cities and towns whose population exceeds three 



[16] 



§ 220(gg) 



BANKS 



§ 222(0)1 



thousand, but does not exceed ten thousand; nor 
less than fifty thousand dollars in cities and towns 
whose population exceeds ten thousand, but does 
not exceed twenty-five thousand; nor less than one 
hundred thousand dollars in cities and towns 
whose population exceeds twenty-five thousand. 
All banks operating branches prior to February 
18, 1931, shall, within a time limit to be prescribed 
by the commissioner of banks, cause said branch 
bank tc conform to the provisions of this section: 
Provided, however, that any bank with a capital 
stock (including both common and preferred) oi 
one million ($1,000,000.00) dollars or more which 
qualifies for non-assessable stock under the pro- 
visions of sections 219(a) 1 et seq., may without 
additional capital establish and operate such num- 
ber of branches or agencies in the state of North 
Carolina as the commissioner of banks may in 
his discretion permit; but a bank operating 
branches under this proviso shall at all times 
maintain an unimpaired capital of at least one 
million ($1,000,000.00) dollars: Provided further, 
that the commissioner of banks shall not per- 
mit the establishment of additional branches, 
andl/or agencies unless said bank maintains 
its capital stock and surplus in ratio of one to 
ten to its deposits. (1921, c. 4, s. 43; Ex. Sess 
1921, c. 56, s. 2; 1927, c. 47, s. 8; 1931, c. 243, s. 
5; 1933, c. 451, s. 1.) 

Editor's Note. — 

The two provisos at the end of this section were added by 
Public Laws 1933, c. 451. 

§ 220(gg). Governor empowered to proclaim 
banking holidays. — The governor is hereby au- 
thorized and empowered, by and with the advice 
and consent of the council of state, to name and 
set apart such day or days, as he may from time to 
time designate, as banking holidays. During such 
period of holidays, all the ordinary and usual op- 
erations and business of all banking corporations, 
state or national, in this state shall be suspended, 
and during such period no banking corporation 
shall pay out or receive deposits, make loans or 
discounts, transfer credits, or transact any other 
banking business whatsoever: Provided, how- 
ever, that during any such holiday, including the 
holiday validated in this section, the commissioner 
of banks, with the approval of the Governor, may 
permit any or all such banking institutions to per- 
form any or all of the usual banking functions. 
The banking holiday heretofore proclaimed by the 
governor of this state for Monday, Tuesday and 
Wednesday, March sixth, seventh and eighth, one 
thousand nine hundred and thirty-three, be, and 
it is hereby approved and validated, and the said 
days are hereby declared to be banking holidays 
in the state of North Carolina. (1933, c. 120, s. 1.) 

Art. 6. Officers and Directors 

§ 221(g). Depositaries, designation by direc- 
tors. 

Editor's Note. — 

For an act providing for the organization of cash deposi- 
tories in Guilford county, see Public Laws 1933, c. 568. 

§ 221 (n). Officers and employees may borrow, 
when. 

Loss of Assets Must Result.— See note to § 220(d). 

Art. 7. Commissioner of Banks and Banking 

Department 
§ 222(1). Other powers of commissioner of 

N. C. Supp.— 2 [ 1 



banks. — ^In addition to all other powers conferred 
upon and vested in him, the commissioner of 
banks, with the approval of the governor, is here- 
by authorized, empowered and directed, whenever 
in his judgment the circumstances warrant it: 

(a) To authorize, permit, and/or direct and re- 
quire all banking corporations under his supervi- 
sion, to extend for such period and upon such 
terms as he deems necessary and expedient, pay- 
ment of any demand and/or time deposits. 

(b) To direct, require or permit, upon such 
terms as he may deem advisable, the issuance of 
clearing house certificates or other evidences of 
claims against assets of such banking institutions. 

(c) To authorize and direct the creation, in such 
banking institutions, of special trust accounts for 
the receipt of new deposits, which deposits shall 
be subject to withdrawal on demand without any 
restriction or limitation and shall be kept separate 
in cash or on deposit in such banking institutions 
as he shall designate or invested in such obliga- 
tions of the United States and/or the state of 
North Carolina as he shall designate. 

(d) To adopt for such banking institutions such 
regulations as are necessary in his discretion to 
enable such banking institutions to comply fully 
with the federal regulations prescribed for national 
or state banks. (1933, c. 120, s. 3.) 

§ 223(m). Orders of commissioner to be ob- 
served; right of appeal. — -The commissioner of banks 
is hereby authorized, empowered and directed to 
make all necessary rules and regulations, and to give 
all necessary instructions with respect to such bank- 
ing corporations which he may authorize, permit 
and/or direct and require to be conducted under 
the provisions of tliis act. And it shall be the duty 
of all such banking corporations and their officers, 
agents and employees, to comply fully with any 
and all such rules, regulations and instructions, 
established and promulgated by the commissioner 
of banks with respect to such banking corporations 
under the terms of this act; and such orders, rules, 
and regulations shall have the same force and ef- 
fect as rules, regulations and instructions promul- 
gated under the existing banking laws. The right 
of appeal provided in section 221 (o) shall apply to 
all such rules, regulations and instructions adopted 
and issued by the commissioner of banks. (1933, 
c. 130, s. 4.) 

§ 222 (n). Commissioner need not take over 
banks failing to meet deposit demands. — The com- 
missioner of banks is authorized and directed not 
to take possession of any banking corporation un- 
der his supervision for failure to meet its deposit 
liabilities during the period in which such bank- 
ing corporation is operating under the terms of 
section 223(1), paragraph (a); and he is hereby 
relieved from any and all liability for permitting 
such banking corporations to continue operations 
under the terms hereof. (1933, c. 120, s. 5.) 

§ 222(o) 1. Additional powers with relation to 
deposits. — The commissioner of banks is hereby 
authorized and empowered in addition to other 
powers, vested in him, whenever in his judgment 
the circumstances warrant it, to authorize any 
bank, trust company, savings bank, industrial bank, 
or other institution under his supervision having 
the power to receive or which is receiving money 
on deposit: 



§ 224(e) 



BANKS 



§ 264(a) 



(A) To extend for such period as he deems 
necessary and expedient payment of any time de- 
posits where notice of withdrawal has been given 
or may hereafter be given. 

(B) To postpone the payment of demand de- 
posits for such time and to such extent as he 
deems necessary and expedient. 

(C) To permit such bank to receive new de- 
posits (after the time of the granting of the au- 
thority for the postponement of the payment of 
time and demand deposits) but such deposits so 
received shall not under any circumstances be sub- 
jected to any limitations as to payment or with- 
drawal and such deposits shall be segregated and 
held and used solely to meet such new deposit li- 
abilities: Provided, that all sums received from 
such new deposits shall be invested, deposited and 
administered in all respects under the orders and 
directions of the commissioner of banks and said 
commissioner of banks shall have absolute power 
in regard to the handling of such new deposits and 
providing methods of checking against same and 
said commissioner of banks shall have absolute 
power to at any time withdraw the permission to 
receive such new deposits. All costs in connec- 
tion with the receiving, handling and administer- 
ing the proceeds of such new deposits shall be 
borne by the bank receiving the same and no part 
of such expenses shall be charged against such new 
deposits that can in any way prevent the payment 
of such new deposits in full. 

In order that any institution may avail itself of 
the privileges herein granted, it shall accept such 
terms as the commissioner of banks from time to 
time impose upon it. 

The commissioner of banks is authorized and 
directed not to take possession of any institution 
under his supervision for failure immediately to 
meet its deposit liabilities if it shall accept the 
terms imposed in accordance with the provisions 
of this section, and he is hereby relieved of any 
and all liability for permitting such institution to 
continue operations. 

Nothing herein contained shall be construed or 
interpreted as in any manner abating any of the 
powers granted to and exercised by the commis- 
sioner of banks under existing law. 

The commissioner of banks is given full power 
and authority to make rules and regulations and 
to impose terms in regard to the management and 
administration of all banks which shall be per- 
mitted to, or which, under the direction of the 
commissioner of banks, is being conducted in any 
way under the provision of this section. (1933, c. 
103.) 

Art. 9. Penalties 

§ 224(e). Misapplication, embezzlement of 
funds, etc. 

The intent and purpose of this section is to prevent the 
deception of the officers of a bank or the depletion of its as- 
sets or injury of its business by falsification of the bank's 
books by its officers or employees, and an indictment for the 
offense is not sufficient which merely charges such falsifi- 
cation without showing that the false entries were material 
or affected the interests of the bank or deceived its officers. 
State V. Cole, 202 N. C. 592, 163 S. E. 594. 

A specific intent to deceive or to defraud is not necessary 
to a conviction of a bank officer or employee of making false 
entries on the books of the bank under the provisions of 
this section, it being sufficient if the defendant wilfully made 
such false entries, the performance of the act expressly for- 
bidden by statute constituting an offense in itself without 

[1 



regard to the question of specific intent. State v. Lattimore, 

201 N. C. 32, 158 S. E- 741. 

In a prosecution under this section for wilfully making 
false entries on the books of a bank an instruction which 
was intended to stress and in effect did stress the necessity 
of proving that the false entries were wilfully and not inad- 
vertently made, will not be held for error. Id. 

Allegation That All Defendants Were Officers. — It is not 
necessary for an indictment charging a conspiracy to vio- 
late the provisions of this section, to allege that all of the 
defendants were officers or employees of the bank, the in- 
dictment being sufficient if it alleges that some of the de- 
fendants were officers or employees of the bank and that 
the other defendants conspired with them to do the unlawful 
act. State v. Davis, 203 N. C. 13, 14, 164 S. E. 737. 

Variance as to Some Items. — In a prosecution of an officer 
of a bank for publishing a false report of the bank's condi- 
tion in violation of this section, a variance between the al- 
legations and proof as to some of the items of the report 
will not be fatal when there is no variance with respect to 
all the items, it being sufficient for conviction if the re- 
port as published was false in any particular as alleged in 
the indictment and was published with knowledge of such 
falsity and with a wrongful or unlawful intent. State v. 
Davis, 203 N. C. 47, 48, 164 S. E. 732. 

§ 224(g). Insolvent banks, receiving deposits 
in. 

Mesming of Insolvent. — 

A bank is insolvent within the meaning of this section, 
when the actual cash market value of its assets is not suf- 
ficient to pay its liabilities to its depositors or other cred- 
itors. State V. Brewer, 202 N. C. 187, 188, 162 S. E. 363. 

How Knowledge Determined. — 

Same — Admissions. — Upon the trial of an officer of an in- 
solvent bank under this section the officer's admissions that 
he knew of the insolvency of the bank at the time in ques- 
tion with his explanation thereof is competent testimony. 
State V. Brewer, 202 N. C. 187, 188, 162 S. E. 363. 

Certified Accountant as Witness. — Upon the trial of a 
bank official under the provisions of this section testimony 
of a certified public accountant who had had experience in 
such matters and who had examined the books of the bank 
and had obtained from the directors, collectively and in- 
dividually, information as to the value of its assets includ- 
ing lands and collateral, that the bank was insolvent at the 
time in question is not objectionable. State v. Brewer, 

202 N. C. 187, 162 S. E. 363. 

Art. 10. Industrial Banks 
§ 225 (o). Stockholders, individual liability of. — 

The stockholders of every industrial bank organ- 
ized under the laws of North Carolina, whether 
under the general law or by special act, shall be 
individually responsible, equally and ratably, and 
not one for another, for all contracts, debts, and 
engagements of such corporation, to the extent of 
the amount of their stocks therein at par value 
thereof, in addition to the amount invested in such 
shares, except as otherwise provided. The term 
stockholders, when used in this act, shall apply 
not only to such persons as appear by the books 
of the corporation to be stockholders, but also to 
every owner of stock, legal or equitable, although 
the same may be on such books in the name of 
another person, but shall not apply to a person 
who may hold the stock as collateral for the pay- 
ment of" a debt. (1925, c. 121, s. 1; 1933, c. 159, 
s. 1.) 

See § 219(a) 1. 

Editor's Note.— 

Public Laws 1933, c. 159, added the words, "except as 
otherwise provided," at the end of the first sentence of this 
section. 

Art. 12. Conservation of Bank Assets and Issuance 
of Preferred Stock 
§ 264(a). Provision for bank conservators; du- 
ties and powers. — Whenever he shall deem it nec- 
essary, in order to conserve the assets of any bank 
for the benefit of the depositors and other credi- 
tors thereof, the commissioner of banks may (with 



§ 264(b) 



BANKS 



§ 264(f) 



the approval of the governor), appoint a conserv- 
ator for such bank and require of such conservator 
such bond with such security as he may deem nec- 
essary and proper. The conservator, under the 
direction of the commissioner of banks, shall take 
possession of the books, records and assets of 
every description of such bank, and take such 
action as may be necessary to conserve the as- 
sets of such bank pending further disposition of 
its business as provided by law. Such conservator 
shall have all such rights, powers and privileges, 
subject to the commissioner of banks, now pos- 
sessed by or hereafter given to the commissioner 
of banks under Section 218(c), Consolidated Stat- 
utes, as amended, as are necessary to conserve the 
assets of said bank. During the time that such 
conservator remains in possession of such bank, 
the rights of all parties with respect thereto, shall 
be the same as those provided in Section 218(c), 
consolidated statutes, as amended. All expenses 
of any such conservator shall be paid out of the 
assets of such bank and shall be a lien thereon 
which sliall be prior to any other lien provided by 
this article or otherwise. The conservator shall 
receive as salary an amount no greater than that 
paid at the present time to employees of depart- 
ments of the state government for similar services. 
(1933, c. 155, s. 1.) 

§ 264(b). Examination of bank. — The commis- 
sioner of banks shall cause to be made such ex- 
amination of the affairs of such bank as shall be 
necessary to inform him as to the financial condi- 
tion of such bank. (1933, c. 155, s. 2.) 

§1 SI64(c). Tlermination of canservatorship. — If 

the commissioner of banks shall become satisfied 
that it may safely be done, he may, in his discre- 
tion, terminate the conservatorship and permit 
such bank to resume the transaction of its busi- 
ness, subject to such terms, conditions, restric- 
tions and limitations as he may prescribe. (1933, 
c. 155, s. 3.) 

§ 264(d). Special funds for paying depositors 
and creditors ratably; new deposits. — While such 
bank is in the hands of the conservator appointed 
by the commissioner of banks, the commissioner 
of banks may require the conservator to set aside 
from unpledged assets and make available for 
withdrawal by depositors and payment to other 
creditors on a ratable basis, such amounts as, in 
the opinion of the commissioner of banks, may 
safely be used for this purpose; and the commis- 
sioner of banks, may, in his discretion, permit the 
conservator to receive deposits, but deposits re- 
ceived while the bank is in the hands of the con- 
servator (as well as special or trust deposits re- 
ceived by any bank, under the orders of the com- 
missioner of banks, since March 2, 1933), shall not 
be subject to any limitation as to payment or with- 
drawal, and such deposits shall be segregated and 
shall not be used to liquidate any indebtedness of 
such bank existing at the time that a conservator 
was appointed for it, or any subsequent indebted- 
ness incurred for the purpose of liquidating any 
indebtedness of said bank existing at the time such 
conservator was appointed. Such deposits received 
w^hile the bank is in the hands of the conservator, 
as well as the special or trust deposits received 
since March 2, 1933, shall be kept on hand in cash 
or on deposit with a federal reserve bank. In be- 

[1 



ing transmitted to the federal reserve bank, said 
deposits shall be so marked and designated as to 
indicate to such federal reserve bank that they 
are special deposits. (1933, c. 155, s. 4.) 

§ 264(e). Reorganization on agreement of de- 
positors and stockholders. — By the agreement of 
(a) depositors and other creditors of any bank 
representing at least seventy-five per cent in 
amount of its total deposits and other liabilities 
as shown by the books of the banks, or (b) stock- 
holders owning at least two-thirds of each class of 
its outstanding capital stock as shown by the 
books of the bank, or (c) both depositors and 
other creditors representing at least seventy-five 
per cent in amount of the total deposits and other 
liabilities, and stockholders owning at least two- 
thirds of its outstanding capital stock as shown by 
the books of the bank, any bank may effect such 
reorganization with the consent and approval of 
the commissioner of banks as by such agreement 
may be determined: Provided, however, that claims 
of depositors or other creditors which will be satis- 
lied in full under the provisions of the plan of re- 
organization shall not be included among the total 
deposits and other liabilities of the bank in deter- 
mining the per cent thereof as above provided. 

When such reorganization becomes effective, all 
books, records and assets of such bank shall be 
disposed of in accordance with the provisions of 
the plan, and the affairs of the bank shall be con- 
ducted by its board of directors in the manner 
provided by the plan and under the conditions, re- 
strictions and limitations which may have been pre- 
scribed by the commissioner of banks. In any reor- 
ganization which shall have been approved, and 
shall have become effective as provided herein, all 
depositors and other creditors and stockholders of 
such bank, whether or not they shall have con- 
sented to such plan of organization, shall be fully 
and in all respects subject to and bound by its 
provisions, and claims of all depositors and other 
creditors shall be treated as if they had consented 
to such plan of reorganization: Provided, however, 
that no reorganization shall affect the lien of se- 
cured creditors. (1933, c. 155, s. 5.) 

§ 264(f). Segregation of recent deposits not ef- 
fective after bank turned back to officers; notice of 
turning bank back to officers. — After fifteen 
days after the affairs of a bank shall have been 
turned back to its board of directors by the con- 
servator, either with or without a reorganization 
as provided in section 264(e) hereof, the provisions 
of section 264(d) with respect to the segregation 
of deposits received while it is in the hands of the 
conservator, and with respect to the use of such 
deposits to liquidate the indebtedness of such bank, 
shall no longer be effective: Provided, that before 
the conservator shall turn back the affairs of the 
bank to its board of directors, he shall cause to 
be published in a newspaper published in the city, 
town or county in which such bank is located, and 
if no newspaper is published in such city, town or 
county, in a newspaper to be selected by the com- 
missioner of banks, a notice in form approved by 
the commissioner of banks, stating the date on 
which the affairs of the bank will be returned to 
its board of directors, and that the said provisions 
of section 264(d) will not be effective after fifteen 
days after such date; and on the date of publica- 

9] 



§ 264(g) 



BASTARDY 



§ 276(d) 



tion of such notice, the conservator shall immedi- 
ately send to every person who is a depositor in 
such bank under section 264(d) a copy of such 
notice by registered mail, addressing it to the last 
know^n address of such persons shown by the rec- 
ords of the bank; and the conservator shall send 
similar notice in like manner to every person mak- 
ing deposit in such bank under section 264(d) af- 
ter the date of such newspaper publication and 
before the time when the affairs of the bank are 
returned to its directors. (1933, c. 155, s. 6.) 

§ 264(g). Iss:uance of preferred stock. — Not- 
withstanding any other provision of this article or 
any other law, and notwithstanding any of the 
provisions of its articles of incorporation or by- 
laws, any bank may, with the approval of the 
commissioner of banks, and by vote of stockhold- 
ers owning a majority of the stock of such bank, 
upon not less than two days' notice given by reg- 
istered mail pursuant to action taken at a meeting 
of its board of directors (which may be held upon 
not less than one days' notice) issue preferred 
stock in such amount and with such par value as 
shall be approved by said commissioner of banks. 
A copy of the minutes of such ■ directors' and 
stockholders' meetings, certified by the proper of- 
ficer and under the corporate seal of the bank, 
and accompanied by the written approval of the 
commissioner of banks shall be immediately filed 
in the office of the secretary of state, and when 
so filed, shall be deemed and treated as an amend- 
ment to the articles of incorporation of such bank. 

No issue of preferred stock shall be valid until 
the par value of all stock so issued shall have been 
paid for in full in cash or in such manner as may 
be specially approved by the commissioner of 
banks. (1933, c. 155, s. 7.) 

§ 2e4(h). Rights and liabilities of preferred 
stockholders. — The holders of such preferred stock 
shall be entitled to cumulative dividends payable 
at a rate not exceeding six per centum per annum, 
but shall not be held individually responsible as 
such holders for any debts, contracts or engage- 
ments of such bank, and shall not be liable for 
assessments to restore impairments in the capital 
of such banks as now provided by law with refer- 
ence to holders of common stock in banks. Not- 
withstanding any other provisions of law, the 
holders of such preferred stock shall have such 
voting rights and such stock shall be subject to 
retirement in such manner and on such terms and 
conditions as may be provided in the articles of 
incorporation or any amendment thereto, with the 
approval of the commissioner of banks. 

No dividends shall be declared or paid on com- 
mon stock until the cumulative dividends on the 
preferred stock shall have been paid in full; and 
if the bank is placed in liquidation, no payments 
shall be made to the holders of the common stock 
until the holders of the preferred stock shall have 
been paid in full the par value of such stock and 
all accumulated dividends. In the event the bank 
is placed in liquidation, the commissioner of banks 
shall, if necessary, levy an assessment under exist- 
ing laws, upon the holders of common stock for 
the purpose of paying the par value of the pre- 
ferred stock and accumulated dividends. (1933, c. 
155, s. 8.) 

§ a64(i). Limitations of preferred stock; not to 



be used as collateral for loans. — Wherever in ex- 
isting banking law, the words "stock," "stockhold- 
ers," "capital" or "capital stock" are used, the 
same shall not be deemed to include preferred 
stock: Provided that no bank issuing preferred 
stock under the provisions hereof, shall be per- 
mitted at any time to make loans upon such pre- 
ferred stock. (1933, c. 155, s. 9.) 

§ 2S4(j). Rights and liabilities of conservator. — 

The conservator appointed pursuant to the provi- 
sions of this article shall be subject to the pro- 
visions of and to the penalties prescribed by sec- 
tions 220(a), 224(e) and 224(f), Consolidated Stat- 
utes, as amended. (1933, c. 155, s. 10.) 

§ 264(k). Naming of conservator not liquidation. 

— No power conferred in this article upon the com- 
missioner of banks, when exercised, shall be 
deemed an act of possession for the purposes of 
liquidation; and whenever the commissioner of 
banks shall, with reference to any bank for which 
a conservator is appointed, deem that liquidation 
is necessary, he shall exercise the powers for the 
purposes of liquidation as provided in section 
218(c) as amended. (1933, c. 155, s. 11.) 

§ 264(1). Right of appeal. — The provisions of 
section 221 (o) with reference to the right of ap- 
peal from actions taken by the commissioner of 
banks shall be applicable to actions taken by the 
commissioner of banks under the provisions of this 
article. (1933, c. 155, s. 12.) 



CHAPTER 6 

BASTARDY 

'§§ 265-276: Repealed by Public Laws 1933, ch. 
228, codified as §§ 276(a) et seq. 

§ 276(a). Non-support of bastard child by par- 
ents made misdemeanor. — Any parent who will- 
fully neglects or who refuses to support and main- 
tain his or her illegitimate child shall be guilty of 
a misdemeanor and subject to such penalties as are 
hereinafter provided. - A child within the meaning 
of sections 276(a)-2'76(i) shall be any person less 
than ten years of age and any person whom either 
parent might be required under the laws of North 
Carolina to support and maintain if such child were 
the legitimate child of such parent. (1933, c. 238, 
s. 1.) 

§ 276(b). Place of birth of child no considera- 
tion. — ■ The provisions of sections 276(a)-276(i) 
shall apply whether such child shall have been be- 
gotten or shall have been born within or without 
the state of North Carolina: Provided, that the 
child to be supported is a bona fide resident of 
this state at the time of the institution of any pro- 
ceedings under this act: Provided, the provisions 
of this act shall not apply to pending litigation or 
accrued actions. (1933, c. 228, s. 2.) 

§ 276(c). Action must be commenced within 
three years after birth. — Proceedings under §§ 276- 
(a)-276(i) may be instituted at any time within 
three years next after the birth of the child and 
not thereafter. (1933, c. 228, s. 3.) 

§ 276(d). Parties plaintiff; indictments; death 
of mother no bar; determination of fatherhood. — - 

Proceedings under sections 276(a)-276(i) may be 



[20] 



§ 276(e) 



BASTARDY 



§ 276 (i) 



brought by the mother or her personal represen- 
tative, or, if the child is likely to become a public 
charge, the superintendent of public welfare or such 
person as by law performs the duties of such offi- 
cial in said county where tiie mother resides or 
tlie child is found. Indictments under sections 
276(a)-27G(i) may be returned in the county where 
the mother resides or is found, or in the county 
where the putative father resides or is found, or 
in the county where the child is found. The fact 
that the child was born outside oi the state of 
North Carolina shall not be a bar to indictment 
of the putative father in any county where he re- 
sides or is found, or in the county where the 
mother resides or the child is found. ■ The death 
of the mother shall in no wise afTect any proceed- 
ings under sections 376 (a) -276 (i). Preliminary 
proceedings under sections 276(a)-276(i) to deter- 
mine the paternity of the child may be instituted 
prior to the birth of the child but when the judge 
or court trying the issue of paternity deems it 
proper, he may continue the case until the woman 
is delivered of the child. When a continuance is 
granted, the courts shall recognize the person ac- 
cused of being the father of the child with surety 
for his appearance, either at the next term of the 
court or at a time to be fixed by the judge or court 
granting a continuance, which shall be after the 
delivery of the child. (1933, c. 228, s. 4.) 

§ 276(e). Mother not excused on ground of self- 
incrimination; not subject to penalty; not compel- 
lable to testify against accused. — No mother of an 
illegitimate child shall be excused, on the ground 
that it may tend to incriminate her or subject her 
to a penalty or a forfeiture, from attending and 
testifying, in obedience to a subpoena of any court, 
in any suit or proceeding based upon or growing 
out of the provisions of §§ 276(a)-276(i), but no 
such mother shall be prosecuted or subjected to 
any penalty or forfeiture for or on account of any 
transaction, matter, or thing as to which, in obedi- 
ence to a subpoena and under oath, she may so 
testify, nor shall she be forced or compelled to 
testify against the accused party against her will. 
(1933, c. 228, s. 5.) 

§ 276(f). Jurisdiction of inferior courts; orders. 

—Proceedings under this act may be instituted 
in any court inferior to the superior court in any 
county wherein such proceedings may be instituted 
under the provisions of sections 276(a)-276(i). 

The court before which the matter may be 
brought shall determine whether or not the de- 
fendant is a parent of the child on whose behalf 
the proceeding is instituted. After this matter has 
been determined in the affirmative the court shall 
proceed to determine the issue as to whether or 
not the defendant has neglected or refused to sup- 
port and maintain the child who is the subject of 
the proceeding. After this matter shall have been 
determined in the affirmative the court shall fix by 
order, subject to modification or increase from time 
to time, a specific sum of money necessary for 
the support and maintenance of the particular 
child who is the object of the proceedings. The 
court in fixing this sum shall take into account 
the circumstances of the case, the financial ability 
to pay and earning capacity of the defendant, and 
his or her willingness to cooperate for the wel- 
fare of the child. The order fixing the sum shall 



require the defendant to pay it either as a lump 
sum or in periodic payments as the circumstances 
of the case may appear to the court to require. 
Compliance by the defendant with any or all of 
the further provisions of this act or the order or 
orders of the court requiring additional acts to be 
performed by the defendant shall not be con- 
strued to relieve the defendant of his or her re- 
sponsibility to pay the sum fixed or any modifica- 
tion or increase thereof. (1933, c. 228, s. 6.) 

§ 276(g). Power of court to modify orders; sus- 
pend sentence, etc. — Upon the determination of 
the issues set out in the foregoing section and for 
the purpose of enforcing the payment of the sum 
fixed, the court is hereby given discretion, having 
regard for the circumstances of the case and the 
financial ability and earning capacity of the de- 
fendant and his or her willingness to cooperate, 
to make an order or orders upon the defendant 
and to modify such order or orders from time to 
time as the circumstances of the case may in the 
judgment of the court require. The order or or- 
ders made in this regard may include any or all 
of the following alternatives: 

(a) Commit the defendant to prison for a term 
not to exceed six months; 

(b) Suspend sentence and continue the case 
from term to term; 

(c) Release the defendant from custody on pro- 
bation conditioned upon the defendant's compli- 
ance with the terms of the probation and the pay- 
ment of the sum fixed for the support and main- 
tenance of the child; 

(d) Apprentice the defendant to the superin- 
tendent of the county home to be employed there 
at a salary to be fixed by the board of county com- 
missioners, or to some other person who will give 
bond for compliance with sections 276(a)-276(i), 
at a salarj' to be fixed by the board of county com- 
missioners, the proceeds of his earnings to be paid 
to such person as the court may direct for the 
support, maintenance and education of the said 
child; and 

(e) Order the defendant to pay to the mother 
of the said child the necessary expenses of birth 
of the child and suitable medical attention for her; 

(f) Require the defendant to sign a recogni- 
zance with good and sufficient security, for com- 
pliance with any order which the court may make 
in proceedings under this act. (1933, c. 228, s. 7.) 

§ 276(h), Bond for future appearance of defend- 
ant. — At the preliminary hearing of any case aris- 
ing under sections 276 (a) -276 (i) it shall be the 
duty of the court, if it finds reasonable cause for 
holding the accused for a further hearing, to re- 
quire a bond in the sum of not less than one hun- 
dred dollars, conditioned upon the reappearance 
of the accused at the further hearing under sec- 
tions 376(a)-276(i). This bond and all other bonds 
provided for in sections 276(a)-276(i) shall be 
justified before, and approved by, the court or the 
clerk thereof. (1933, c. 228, s. 8.) 

§ 276(i). Title.— This statute shall be referred 
to as "An act concerning the support of children 
of parents not married to each other." (1933, c. 
228, s. 11.) 

1] 



§ 279 



CIVIL PROCEDURE 



§ 415 



§ 279. Legitimation by subsequent marriage. 

Irregularity in divorce proceedings is not, by virtue of 

this section, ground for declaring children by a subsequent 

marriage illegitimate. Reed v. Blair, 202 N. C. 745, 164 S. 
E. 118. 



CHAPTER 8 

BONDS 

Art. 2. Bonds in Surety Company 
§ 339. Surety company sufficient surety on 
bonds and undertakings. 

Same Liability as an Individual. — A surety corporation al- 
lowed by this section to give guardian bonds, is held to the 
same liability on a bond given by it as an individual would 
be, and is responsible to the ward when the guardian's fail- 
ure to properly perform his duties causes loss to the ward's 
estate. Roebuck v. National Surety Co., 200 N. C. 196, 156 
S. E. 531. 

§ 344. On presentation of proper bond officer 
to be inducted. 

Although the failure of the treasurer to sign a bond was 
an irregularity under this section, both the treasurer and 
the surety recognized their liability thereon by offering a 
second bond in substitution, and both were estopped to deny 
the validity of the first bond on the ground of such irregu- 
larity. State V. Inman, 203 N. C. 542, 166 S. E. 519. 

Art. 4. Actions on Bonds 

§ 354. On official bonds injured party sues in 
name of state; successive suits. 

Cross Reference. — As to surety waiving his rights under 
this section and §§ 353, 355 by appearing and answering in 
a summary proceeding, see § 356 and the note thereto. 

§ 35G. Summary remedy on official bond. 

Demand Not Necessary. — In a proceeding by the state, 
against a clerk of the Superior Court and the surety on his 
iDcmd to recover sums embezzled by the clerk, the plaintiffs 
have the right to pursue the siunmary remedy under this 
section, upon their motion after due notice, and demand 
upon the clerk is not necessary. State v. Gant, 201 N. C. 
211, 159 S. E. 427. 

Waiver by Appearance. — Where a summary proceeding 
under this section has been instituted against a clerk of 
the superior court and the surety on his bonds to recover 
sums embezzled by the clerk, and the surety has entered a 
general appearance and filed answer, etc., the surety has 
waived its riglits, if any it had, under §§ 353, 354, 355, to 
object that the plaintifl's could not maintain a summary 
proceeding under this section. State v. Gant, 201 N. C. 211, 
159 S. E. 427. 

§ 357. Officer unlawfully detaining money li- 
able for damages. 

Effect of Waiver of Interest from Date of Defalcation. — 

Where, in an action against a clerk of the superior court and 
his surety to recover sums embezzled by the clerk, the state 
waives the interest from the date of the actual defalcations, 
but does demand the 12 per cent from the date of the expiration 
of each term of office; a judgment awarding damages at 12 
per cent, under the provisions of this section, on the sums 
defaulted from the expiration of each term is not error, the 
amount being within the penalty of the bond. State v. Gant, 
201 N. C. 211, 213, 159 S. E. 427. 



CHAPTER 9 

BOUNDARIES 
§ 361. Special proceeding to establish. 

Effect of Binding Agreement. — Where in proceedings to 
establish the disputed boundaries between adjoining lands, 
a binding executed agreement between the parties has been 
established by uncontradicted evidence, the plaintiff is es- 
topped from proceeding under this section, and there is no 
error in the court's holding that the completed agreement 
of arbitration operated as an estoppel as a matter of law. 
Lowder v. Smith, 201 N. C. 643, 643, 161 S. E. 223. 

[2 



CHAPTER 11 

CITIZENSHIP RESTORED 

§ 386. When and where petition filed. — At any 

time after the expiration of two years from the 
date of discharge of the petitioner, the petition may 
be filed in the superior court of the county in 
which the applicant is at the time of filing and has 
been for five years next preceding a bona fide 
resident, or in the superior court of the county, 
at term, where the indictment was found upon 
which the conviction took place; and in case the 
petitioner may have been convicted of an infa- 
mous crime more than once, and indictments for 
the same may have been found in different coun- 
ties, the petition shall be filed in the superior court 
of that county where the last indictment was found. 
(Rev., s. 2676; Code, ss. 2940, 2941; 1897, c. 110; R. 
C, c. 58, ss. 3, 4; 1840, c. 36, s. 3; 1933, c. 243.) 

Editor's Note. — Prior to the amendment by Public Eaws 
1933, c. 243, the petition was permitted to be filed after "four 
years from the date of conviction," instead of "two years 
from the date of discharge" as is now permitted. 



CHAPTER 12 

CIVIL PROCEDURE 
SUBCHAPTER II. LIMITATIONS 
Art. 3. Limitations, General Provisions 
§ 407. Disabilities. 

Cross Reference. — As to insanity permitting the commenc- 
ing of suit after expiration of statute of limitations see § 443 
and the note thereto. 

§ 411. Defendant out of state; when action 
begun or judgment enforced. 

Applicable to Enforce Resulting Trust. — Where a cause of 
action to enforce a resulting trust has existed for more than 
ten years, but subtracting the length of time the trustee 
thereof had been out of the state, the elapsed time is less 
than ten years, then, under this section, the cause of ac- 
tion is not barred by the ten-year statute. Miller v. Miller, 

200 N. C. 458, 157 S. E. 604. 

§ 415. New action within one year after non- 
suit, etc. 

The words **new action," **new suit," and "original suit" 
indicate a difference in the two actions though the causes 
may be identical. Cooper v. Crisco, 201 N. C. 739, 161 S. 
E. 310. 

Actions to Which Applicable. — 

The cause of action in the first suit may be identical with 
the cause in the second, but it does not follow that the 
prosecution bond, the bond of indemnity, or the leave given 
by the Attorney-General in the first action can avail the 
defendant in the action last instituted. Cooper v. Crisco, 

201 N. C. 739, 161 S. E. 310. 

Where a foreign receiver, under the mistake that special 
permission was necessary for him to sue in the courts of 
our state, has taken a voluntary nonsuit, and obtains per- 
mission to sue in our courts, and brings the identical action 
again within one year from the nonsuit, if the former ac- 
tion has not been barred by a statute of limitations appli- 
cable, the second action is in time if brought within one 
year from the time of the voluntary nonsuit. Van Kempen 
V. Latham, 201 N. C. SOS, 506, 160 S. E. 759. 

Where a proceeding for compensation is instituted before 
the Industrial Commission, and the proceeding is dismissed, 
an action thereafter begun in the Superior Court by the 
widow as administratrix against the employer to recover 
for the employee's wrongful death will not be considered a 
continuation of the proceedings before the Industrial Com- 
mission so as to relate back to the time of the institution 
of such proceedings, and the action instituted in the Su- 
perior Court is barred if not brought within one year from 
the employee's death, there being a distinction between dis- 
missal of proceedings under the compensation act and a 
nonsuit entered in an action instituted in the Superior Court 



§ 416 



CIVIL PROCEDURE 



§ 441 



entitling plaintiiif to institute a new action within one year. 
Mathis v; Camp Mfg. Co., 2CM N. C. 434, 168 S. E. 515. 

Section as Extension of Time. — 

The time is extended because the new action is considered 
as a continuation of the former action, and they must be 
substantially the same, involving the same parties, the same 
cause of action, and the same right. Van Kempen v. Latham, 
201 N. C. 505, 513, 160 S. E. "59. 

Effect of Agreement Not to Plead Statute. — An agreement 
in the original action not to plead the statute of limitations 
does not apply to the new action. Citizens' Sav., etc., Co. 
V. Warren, 204 N. C. 50, 167 S. E. 494. 

Parol Evidence to Prove Nature of Action. — See Drinkwater 
V. Western Union Tel. Co., 204 N. C. 224, 168 S. E. 410, follow- 
ing the statement under this catchline in the Code of 1931. 

Application Where Statute Not One of Limitation — Actions 
for death by Wrongful Act. — 

A new action for wrongful death commenced within one 
year from the date of nonsuit falls within the provisions of 
this section notwithstanding the provisions of § 150, and the 
fact that the plaintifif has been assessed with additional costs 
upon motion for reassessment made in the second action and 
has not paid the cost so reassessed is immaterial. Swainey 
V. Great Atlantic, etc., Tea Co., 204 N. C. 713, 169 S. E. 618. 
See notes to § 160. 

§ 416. New promise must be in writing. 

II. ACKNOWLEDGMENT OR NEW PROMISE. 
Elements Necessary to Valid Promise. — 

In order for a letter signed by the debtor to remove the 
bar of the statute of limitations it must contain an express, 
unconditional promise to pay or a definite, unqualified ac- 
knowledgment of the debt as a subsisting obligation, and a 
letter acknowledging the debt at the time defendant left 
plaintifif's city but claiming that it had been canceled by 
the creditor's action in selling the debtor's goods of a value 
greatly in excess of the debt, is not such an acknowledgment 
of a subsisting obligation as will repeal the statutory bar. 
Smith V. Gordon, 204 N. C. 695, 169 S. E. 634. 

Must Be within Statutory Limit Itself. — The three-year 
statute of limitations bars a simple action for debt, and 
where a letter relied on as arresting the running of the 
statute is written more than three years before the com- 
mencement of the action it is ineflfective. Smith v. Gordon, 
204 N. C. 695, 169 S. E. 634. 

Art. 4. Limitations, Real Property 
§ 426. Possession presumed out of state. 

Cross Reference. — As to admitting in evidence, to establish 
title by adverse possession, a deed insufficient to convey 
title, see § 430 and the note thereto. 

§ 428. Seven years possession under colorable 
title. 

II. NOTE TO SECTION 428 
Sufficiency of Paper to Constitute Color — Void Deed. — 

A wife's deed to her husband is color of title even if it be 
void, and his sufficient adverse possession for seven years, 
under this section, will ripen the fee-simple title in him. 
Potts V. Payne, 200 N. C. 246, 156 S. E. 499. 

Effect on Lien of Judgment Creditor. — Adverse possession 
against a judgment debtor for a period of seven years under 
color of title does not affect the lien of a judgment creditor, 
the judgment creditor having no right of entry or cause of 
action for possession, but only a lien enforceable according 
to the prescribed procedure, and as to him the possession 
is not adverse. Moses v. Major, 201 N. C. 613, 160 S. E. 890. 

§ 430. Twenty years adverse possession. 

Effect of Exclusive Dominion after Dedication to Public. — 

Where the owner of land has platted and sold it by deeds 
referring to streets, parks, etc., according to a registered 
map, the grantees have an easement therein, but where he 
has later fenced ofif a part of the land so offered for dedica- 
tion to the public and under known metes and bounds has 
exercised exclusive and adverse dominion over the enclosed 
lands, asserting absolute title, the statute of limitations will 
begin to run against the easements of the grantees thus ac- 
quired, which will ripen title to the enclosed lands in favor 
of the owner or his grantee under the provisions of this sec- 
tion, by twenty years adverse possession. Gault v. Lake 
Waccamaw, 200 N. C. 593, 158 S. E. 104. 

§ 432. Possession follows legal title. 

Presumption of Subordination. — 

When the plaintifif in ejectment shows title to the locus 

[2 



in quo, and the defendant claims title by adverse possession, 
the latter must establish such affirmative defense by the 
greater weight of the evidence; otherwise, under this section, 
the defendants' occupation is deemed to be under and in 
suliordination to the legal title. Hayes v. Cotton, 201 N. C. 
369, 371, 160 S. E. 453. 

§ 435. No title by possession of public ways. 

Applies Only to Streets Acquired by Municipality. — The 

principle of law of this section applies only to such streets 
as the municipality has acquired and not to land offered to 
be dedicated by a private citizen for use as streets when 
such ofTer of dedication has not been accepted by the munic- 
ipality before the offer has been unequivocally withdrawn. 
Gault V. Lake Waccamaw, 200 N. C. 593, 158 S. E. 104. 

Art. 5. Limitations, Other than Real Property 
§ 437. Ten years. 

III. SUBS. (2) SEALED INSTRUMENTS. 
Application to Sureties.— See Barnes v. Crawford, 201 N. 
C. 434, 437, 160 S. E. 464, following the statement under 
this catchline in the Code of 1931. 

IV. SUBS. (3) MORTGAGE FORECLOSURE. 
Effect of Payment of Interest. — This section will not bar 
foreclosure on a deed of trust when, although the debt was 
due more than 10 years ago, interest has been paid on the 
debt within 10 years. Dixie Gro. Co. v. Hoyle, 204 N. C. 
109, 167 S. E. 469. 

§ 437(a). Actions to recover deficiency judg- 
ments limited to within one year of foreclosure. — 

No action shall be maintained on any promissory 
note, bond, evidence of indebtedness or debt se- 
cured by a mortg'age or deed of trust on real es- 
tate after the foreclosure of the mortgage or deed 
of trust securing the same, except within one year 
from the date of sale under such foreclosure or from 
the date of the ratification of this section, if such 
sale precedes its ratification; but this section shall 
not extend the time of limitation on any such ac- 
tion. (193,3, c. 529, s. 1.) 

§ 439. Six years. 

See notes to § 441. 

II. SUBSECTION ONE— PUBLIC OFFICERS. 
When Statute Begins to Run. — 

Ordinarily the statute begins to run from the time of the 
breach of the bond. Upon the termination of a sinking fund 
commissioner's term the law required him to account for 
funds in his hands and his failure to do so constituted a 
breach of his official bond giving rise to a cause of action 
thereon immediately. Washington v. Bonner, 203 N. C. 250, 
165 S. E. 683. 

§ 441. Three years. 

I. IN GENERAL. 
Where plaintiff has taken a voluntary nonsuit and brings 
the identical action again, if the former action has not been 
barred by this section, the second action is in time if brought 
within one year from the time of the voluntary nonsuit. Van 
Kempen v. Latham, 201 N. C. 505, 160 S. E. 759. 

II. SUBSECTION ONE— CONTRACTS. 

This section applies to sureties on a note under seal, an<l 
as to the sureties the right of action on the note is barred 
after the lapse of three years. Barnes v. Crawford, 201 N. 
C. 434, 160 S. E. 464. 

Indemnity or Fidelity Bond. — Where the liability of the in- 
surer is e.xpressly limited in an indemnity or fidelity bond 
to losses occasioned and discovered during a specified time, 
this section will not extend the period of indemnity for this 
is a statute of limitations and can have no efifect upon the 
valid contractual relations existing between the indemnitor 
and indenrnitee. Hood v. Rhodes, 204 N. C. 158, 159, 167 
S. E. 558, 

A guaranty of the payment of a note is £in obligation aris- 
ing out of contract by which the guarantors assume liability 
for payment of the note in case the makers thereof do not 
pay same upon maturity, and right to sue upon such guar- 
anty arises immediately upon failure of the makers to pay 
the note according to its. tenor, and suit against the guar- 
antors is barred by this section after three years from the 

3] 



§ 442 



CIVIL PROCEDURE 



§ 456 



maturity of the note. Wachovia Bank, etc., Co. v. Clifton, 
203 N. C. 483, 166 S. I). 334. 

Accrual of Cause. — A cause of action did not accrue at the 
date of the warranty, but at the date on which it was finally 
determined that a plant was not free from all defects and 
flaws. Heath v. Moncrieff Furnace Co., 200 N. C. 377, 381, 
156 S. E;. 920. 

VIII. SUBSECTION EIGHT— CLERK FEES. 

Not Applicable to Referee. — The claim of a referee for pay- 
ment of services rendered in a cause which is still pending 
in the courts upon exceptions to his report is not barred by 
this section. Farmers' Bank v. Merchants', etc.. Bank, 304 
N. C. 378, 168 S. E. 221. 

IX. SUBSECTION NINE— FRAUD OR MISTAKE. 

Applies to Actions at Law £ind Suits in Equity. — While this 
subsection originally applied only to actions for relief on the 
ground of fraud in cases solely cognizable by courts of eq- 
uity, by statutory amendment and the decisions of our 
courts it now applies to all actions for relief on the ground 
of fraud or mistake. Stancill v. Norville, 203 N. C. 457, 166 
S. E. 319. 

When Statute Begins to Run. — 

Where a clerk of the Superior Court embezzles funds and 
such fraud is not discovered until about 90 days prior to the 
institution of proceedings against the clerk and the surety 
on his bonds, and such fraud could not have been discovered 
earlier by reasonable diligence, this section and not § 439 ap- 
plies. State V. Gant, 201 N. C. 211, 159 S. E. 427; State v. 
American Surety Co., 201 N. C. 325, 160 S. E. 176. 

Where Purchaser Did Not Participate in Fraud. — Where 
etiere is no allegation or proof that a purchaser fraudulently 
concealed the fact of sale or participated in any fraud in 
connection therewith, then as to him the action is barred by 
the lapse of three years, this section not applying as to the 
action against him. Johnson Cotton Co. v. Sprunt & Co., 
201 N. C. 419, 160 S. E. 457. 

§ 442. Two years. — Within two years — 

1. All claims against counties, cities and towns 
of this state shall be presented to the chairman of 
the board of county commissioners, or to the chief 
officers of the cities and towns, within two years 
after the maturity of such claims, or the holders 
shall be forever barred from a recovery thereon. 

2. An action to recover the penalty for usury. 

3. The forfeiture of all interest for usury: Pro- 
vided, however, this section shall not apply to the 
counties of Cherokee and Clay. (Rev., s. 396; 
Code, ss. 756, 3836; 1874-5, c. 243; 1876-7, c. 91, s. 
3; 1895, C. 69; 1931, C. 231; 1933, c. 318, s. 1.) 

Editor's Note. — The proviso exempting Cherokee and Clay 
Counties from the operation of the section was added by 
Public Laws 1933, c. 318. As to limitation on vouchers and 
script issued in Carteret and Haywood Counties, see Public 
Laws 1933, c. 386. 

I. SUBSECTION ONE— POLITICAL SUBDIVISIONS OF 
STATE. 
Purpose of Section.— See Moore v. Charlotte, 204 N. C. 37, 
39, 167 S. E. 380. following the statement under this section 
in the Code of 1931. 

II. SUBSECTION TWO— PENALTY FOR USURY. 
Bar of Counterclaim. — Where more than two years has 
elapsed from the payment of alleged usury until the insti- 
tution of an action on the debt alleged to have been tainted 
with usury, the defendant's counterclaim for twice the 
amount of tisury charged is barred. Farmers' Bank, etc., 
Co. V. Redwine, 204 N. C. 125, 167 S. E. 687. 

III. SUBSECTION THREE— FORFEITURES OF ALL IN- 
TEREST FOR USURY. 
Editor's Note. — 

This section is prospective only, and is applicable only to 
a forfeiture under § 2306, which has occurred, or shall oc- 
cur, since its ratification on April 1, 1931. Farmers' Bank, 
etc., Co. v. Redwine, 204 N. C. 125, 130, 167 S. E. 687. 

§ 443. One year. 

Subsection Three — Disability Preventing Bar. — An action 
for assault and battery is barred upon the plea of this sec- 
tion, if not commenced within one year, but if the plaintiff 
alleges and shows that he could not sooner have brought the 
action because of his mental condition or insanity, the time 

[2 



of such disability will be deducted from the running of the 
statute. Hayes v. Lancaster, 200 N. C. 293, 156 S. E. 530. 

§ 444. 
Editor's Note. — 

For an act, applicable only in Cleveland and Rutherford 
Counties, providing limitation in action against one pur- 
chasing crops with lien thereon, see Public Laws 1933, c. 
167. 

SUBCHAPTER III. PARTIES 
Art. 6. Parties 

§ 446. Real party in interest; grantees and as- 
signees. 

I. REAL PARTIES IN INTEREST. 
A, In General. 
Question Cannot Be Raised on Appeal. — Wbere an action 
is instituted by a corporation on the theory that it was a 
duly substituted trustee of an active trust, under § 449, and 
the plaintiff's right to sue is not raised in the lower court, 
the question of whether the plaintiff' is the real party in in- 
terest may not be raised by the defendant for the first time 
in the Supreme Court. Asheville Safe Deposit Co. v. Hood, 
204 N. C. 346, 168 S. E. 524. 

B. Personal Actions. 

The assignee of a chose in action may bring an action 
thereon in his own name, under this section, and a bond 
given to indemnify a bank from any loss it might sustain 
fby reason of its taking over the assets and discharging the 
liabilities of another bank is assignable. North Carolina 
Bank, etc., Co. v. Williams, 201 N. C. 464, 160 S. E. 484. 

Claim under Workmen's Compensation Act. — It is required 
by this section, that an action be prosecuted in the name 
of the real party in interest, and where a statute names a 
person to receive funds and authorizes him to sue therefor, 
only the person named may litigate the matter, and where 
J. claim under the Workmen's Cimpensation Act is liti- 
gated in the name of the deceased the proceeding iS' a nullity 
and will be dismissedi on appeal to the Supreme Court. Hunt 
V. State, 201 N. C. 37, 158 S. E- 703. 

C. Actions Concerning Realty. 
Reformation of Deed of Trust. — Where a substituted trus- 
tee brings an action to reform a deed of trust and certain 
mortgage notes which are negotiable, the holders of the 
notes are necessary parties. First Nat. Bank v. Thomas, 
204 N. C. 599, 169 S. E- 189. 

§ 447. Suits for penalties. 

Applied, in fixing penalty for illegal weighing of cotton, in 
State v. Briggs, 203 N. C. 158, 165 S. E. 339. 

§ 449. Action by executor or trustee. 

Question Cannot Be Raised on Appeal. — See note to § 446. 

§ 450. Infants, etc., sue by guardian or next 
friend. 

Designation Guardian Instead of Next Friend. — It would 
have been more regular if the representative of infants had 
been designated in a proceeding as next friend, rather than 
as guardian, but as he did not undertake to represent the 
infants otherwise than as next friend, it is immaterial that 
he was designated as guardian and not as next friend. Ex 
parte Huffstetler, 203 N. C. 796, 798, 167 S. E. 65. 

§ 451. Infants, etc., defend by guardian ad 
litem. 

Applied to Action to Foreclose for Taxes. — In an action un- 
der § 8037 the delinquent shall be made a defendant, and if 
a minor he must defend by a guardian, either general, tes- 
tamentary, or ad litem. Forsyth County v. Joyce, 204 N. 
C. 734, 7,38, 169 S. E. 655. 

§ 456. Who may be defendants. 

Before allotment of dower is made in the lands of a de- 
ceased husband dying intestate his beirs at law s'nould be 
made parties plaintiff or defendant. Holt v. Lynch, 201 N. 
C. 404, 160 S. E. 469. 

Surety. — Where a contractor gives a surety bond for the 
faithful performance of a contract for the cutting of timber, 
it is not necessary to first ascertain by action or otherwise 
the amount of the liability of the contractor before uniting 
his surety as a party to an action for damages for its 
breach, the surety being a proper party for the complete 

4] 



§ 457 



CIVIL PROCEDURE 



§ 475 



determinalion or settlement of the question involved. Wat- 
son V. King, 200 N. C. 8, 156 S. E. 93. 

Review on Appeal. — The action of the trial judge in making 
necessary parties to an action is reviewable on appeal, and 
the making of proper parties is addressed to his sound dis- 
cretion and not reviewable. Williams v. Hooks, 200 N. C. 
419, 157 S. E. 65. 

§ 457. Joinder of parties; action by or against 
one for benefit of a class. — Of the parties to the ac- 
tion, those who are united in interest must be 
joined as plaintiffs or defendants; but if the con- 
sent of any one who should have been joined as 
plaintiff cannot be obtained, he may be made a de- 
fendant, the reason thereof being stated in the 
complaint. When the question is one of a com- 
mon or general interest of many persons, or where 
the parties are so numerous that it is impracticable 
to bring them all before the court, one or more 
may sue or defend for the benefit of all. Any and/ 
or all unincorporated, beneficial organizations, fra- 
ternal benefit orders, associations and/or societies, 
or voluntary fraternal beneficial organizations, or- 
ders, associations and/or societies issuing certif- 
icates and/or policies of insurance, foreign or do- 
mestic, now or hereafter doing business in this 
state, shall have the power to sue and/or be sued 
in the name commonly known and/or used by 
them in the conduct of their business to the same 
extent as any other legal entity established by law, 
and without naming any of the individual mem- 
bers composing it: Provided, however, this sec- 
tion shall apply only in actions concerning such 
certificates and/or policies of insurance. (Rev., 
s. 411; Code, s. 185; C. C. P., s. 63; 1933, c. 182.) 

Editor's Note. — The last sentence of this section, relat- 
ing to unincorporated, beneficial organizations, fraternal or- 
ders, etc., was added by Public L,aws 1933, c. 182. 

§ 460. New parties by order of court; inter- 
vener. 

In General. — 

This section serves to confer upon the trial court the 
power if not as a matter of right, then as a matter in his 
discretion, to allow an intervener to claim property while it 
is still in custodia legis. Unaka, etc., Nat. Bank v. Lewis, 
203 N. C. 644, 16<5 S. E- 800. 

SUBCHAPTER IV. VENUE 

Art. 7. Venue 

§ 463. Where subject of action situated. 

II. ACTIONS RELATING TO REAL PROPERTY. 
Polution of Stream. — An action for damages caused by the 
pollution of a stream resulting in forcing the plaintiff to 
shut down his clay mining machine appears to be a transi- 
tory one and is not such as contemplated by this section. 
Harris Clav Co. v. Carolina China Clay Co., 203 N. C. 12, 
164 S. E. 341. 

§ 464. Where cause of action arose. 

Trial of Whole Controversy in County Where Offense Oc- 
curred. — Where in an action against the clerk of the Supe- 
rior Court of one county and the sheriff of another county 
the clerk makes motion for removal of the cause as to him 
to the county of his office under this section, the motion 
should have been denied in order to avoid the possibility 
of conflicting verdicts and judgments and to dispose of the 
controversy in one action, the spirit of this section being 
efifected in such instances by trial of the whole controversy 
in the county where the offense occurred. Kellis v. Welch, 
201 N. C. 39, 158 S. E. 742. 

§ 466. Domestic corporations. 

Cross Reference. — As to foreign corporations after domes- 
tication see § 1181 and the note thereto. 

Applied in Eastern Cotton Oil Co. v. New Bern Oil, etc., 
Co., 204 N. C. 362, lOS S. E. 411. 

Cited in Occidental Life Ins. Co. v. Lawrence, 204 N. C. 
707, 169 S. E. 636. 



§ 470. Change of venue. 

I. IN GENERAL. 

Section Relates to Venue Not Jurisdiction. — 

Under the present practice, venue may be waived because 
it is not jurisdictional, and is available to the objecting 
party, not by demurrer, but by motion in the cause. Shaf- 
fer v. Morris Bank, 201 N. C. 415, 418, 160 S. E. 481. 

§ 471. Removal for fair trial. 

Discretion of Trial Judge. — 

See State v. Davis, 203 N. C. 13, 26, 164 S. E- 737, follow- 
ing statement in Code of 1931. 

§ 473. Additional jurors from other counties in- 
stead of removal. — Upon suggestion made as pro- 
vided by the second section preceding, or on his 
own motion, the presiding judge, instead of mak- 
ing order of removal may cause as many jurors as 
he deems necessary to be summoned from any 
county in the same judicial district or in an ad- 
joining district by the sheriff or other proper of- 
ficer thereof, to attend, at such time as the judge 
designates, and serve as jurors in said action. The 
judge may direct the required number of names 
to be drawn from the jury box in said county in 
such manner as lie may direct, and a list of the 
same to be delivered to the sheriff or other proper 
officer of the county, who shall at once summon 
the jurors so drawn to appear at the time and 
place specified in the order. In case a jury is not 
obtained from those so summoned the judge may, 
in like manner, from time to time, order additional 
jurors summoned from any county in the same ju- 
dicial district or in an adjoining district, or from 
the county where the trial is being held, until a jury 
is obtained. These jurors are subject to challenge 
for cause as other jurors, but not for nonresidence 
in the county of trial, or service within two years, or 
not being freeholders, and all jurors so summoned 
are entitled to compensation for mileage and time, 
to be paid by the county to which they are sum- 
moned, at the rate now provided by law for regu- 
lar jurors in the county of their residence. Pro- 
vided, that when the judge shall determine that it 
is necessary to have a special venire drawn from 
an adjoining county, instead of directing the ju- 
rors to appear at the courthouse in the county 
where the trial is pending, he may order them to 
appear at the courthouse of their own county and 
in lieu of their receiving mileage in going from 
their own county to the county in which the trial 
is held, it shall be optional with the county where 
the trial is held to provide transportation to said 
jurors from their own county seat to the place of 
trial and return instead of paying mileage to the 
jurors in going from their county seat to the place 
of trial. This proviso shall not apply to Ashe 
County and Durham County. (1913, c. 4, ss. 1, 2; 
1931, c. 308; 1933, c. 248, s. 1.) 

Editor's Note. — 

The proviso at the end of this section relating to special 
venires to save mileage allowance, was added by Public 
Laws 1933, c. 248. 

Discretion of Judge. — 

Under this section the granting of a solicitor's motion that 
the jury be drawn from the body of another county is with- 
in the court's discretion. State v. Shipman, 202 N. C. 518, 163 
S. E. 657. 

SUBCHAPTER V. COMMENCEMENT OF 
ACTIONS 

Art. 8. Summons 
§ 475. Civil actions commenced by. 

Effect of Nonsuit. — Where certain named individuals, direc- 



25] 



§ 476 



CIVIL PROCEDURE 



§ 507 



tors of a corporation, are served with summons as trus- 
tees, and as to them the plaintiff takes a voluntary non- 
suit and moves that the corporation be made the defendant 
in the action, and the complaint amended, the effect of the 
motion is to commence a new action against the corpora- 
tion, and not to amend the original complaint. Jones v. 
Vanstory, 200 N. C. 582, 157 S. E- 867. 

§ 476. Contents, return, seal. 

Cross Reference. — As to amendment when a summons fails 
to comply with the requirement of the instant section, see 
§ 547 and the note thereto. 

§ 483. Service by copy. — The summons shall be 
served by delivering a copy thereof in the follow- 
ing cases: 

1. If the action is against a corporation, to the 
president or other head of the corporation, secre- 
tary, cashier, treasurer, director, managing or 
local agent thereof. Any person receiving or 
collecting money in this state for a corporation 
of this or any other state or government is a local 
agent for the purpose of this section. Such serv- 
ice can be made in respect to a foreign corpora- 
tion only when it has property, or the cause of 
action arose, or the plaintiff resides, in this state, 
or when it can be made personally within the 
state upon the president, treasurer or secretary 
thereof. 

2. If against a minor under the age of fourteen 
years, to the minor personally, and also to his 
father, mother or guardian, or if there are none 
within the state, to any person having the care 
and control of the minor, or with whom he re- 
sides, or in whose service he is employed. 

3. If against a person judicially declared of un- 
sound mind, or incapable of conducting his own 
affairs in consequence of habitual drunkenness, and 
for whom a committee or guardian has been ap- 
pointed, to such committee or guardian, and to 
the defendant personally. If the superintendent 
or acting superintendent of an insane asylum in- 
forms the sheriff or other officer who is charged 
with the duty of serving a summons or other ju- 
dicial process, or notice, on an insane person con- 
fined in such asylum, that the summons, or proc- 
ess, or notice, cannot be served without danger 
of injury to the insane person, it is sufficient for 
the officer to return the same without actual serv- 
ice, but with an endorsement that it was not per- 
sonally served because of such information; and 
when an insane person is confined in a common 
jail it is sufffcient for an ofificer charged with serv- 
ice of a notice, summons, or other judicial process, 
to return the same with the endorsement that it 
was not served because of similar information as 
to the danger of service on such insane person 
given by the physician of the county in which the 
jail is situated. 

4. Every unincorporated, fraternal, beneficial 
organization, fraternal benefit order, association 
and/or society issuing certificates and/or policies 
of insurance, whether foreign or domestic, now or 
hereafter doing business in this state, shall be sub- 
ject to service of process, in the same manner as 
is now or hereafter provided for service of process 
on corporations: Provided, this paragraph shall 
only apply in actions concerning such certificates 
and/or policies of insurance. (Rev., s. 440; Code, 
s. 217; C. C. P., s. 82; 1874-5, c. 168; 1889, c. 89; 
1933, c. 24.) 

[2C] 



I. IN GENERAL. 
Editor's Note. — 

Public Laws 1933, c. 24 added paragraph 4 of this section, 
relating to service on imincorporated, fraternal, beneficial 
organizations, fraternal orders, etc. 

II. SERVICE ON CORPORATIONS. 
A. Corporations Generally. 
Requirement Meindatory. — 

The provisions of this section must be strictly followed, 
and a separate copy of the summons must be served on and 
left with the agent for each corporate defendant. Hershey 
Corp. V. Atlantic Coast Line R. Co., 203 N. C. 184, 165 S. 
E. 550. 

The provisions of this section as to service of summons on 
private corporations must be observed, and where individ- 
uals, directors of a corporation, are served with process as 
trustees, it will not be effectual as service on the corpora- 
tion, but only on the individuals named. Jones v. Vanstory, 
200 N. C. 582, 157 S. E. 867. 

B. Foreign Corporations. 
Travelling Auditor of a Foreign Corporation. — See Blades 
Lbr. Co. V. Finance Co., 204 N. C. 285, 168 S. E. 219, fol- 
lowing Higgs & Co. V. Sperry, etc., Co., 139 N. C. 299, 51 
S. E. 1020, and holding also that the fact that such agent 
received money for the corporation on a single instance does 
not alter this result. 

§ 484. Service by publication. 

See note to § 491. 

I. IN GENERAL. 

Affidavit Not Required in Proceedings to Foreclose Taix 
Certificate. — Where the summons in proceedings to foreclose 
a tax certificate of the sale of lands in the action against the 
listed owner of the lands has been returned the defendant 
"not to be found," it is not required as under the provi- 
sions of this section, that this fact be made to appear by 
affidavit to the satisfaction of the court in order for valid 
service by publication. Orange County v. Jenkins, 200 
Mass. 202, 203, 156 S. E. 774. 

III. SERVICE BY PUBLICATION ON NONRESIDENT 
WITH PROPERTY WITHIN STATE. 
In General. — 

Where the summons has been duly returned "defendant 
not to be found in the State." and at the time of its issuance 
it was alleged in a verified complaint and in supporting af- 
fidavits that the cause of action was for money had and 
received, and that the defendant was beyond the limits of 
the State, and was a resident of another State, this section 
has been substantially complied with and the validity of the 
service is upheld. Bethell v. Lee, 200 N. C. 755, 158 S. E. 
493. 

§ 491. Personal service on nonresident. 

Application. — 

Where from the verified pleadings of a party the location 
of the defendant is determined and personal service has 
been made, an exception to the validity of the service on 
the ground that the place of residence of defendant in an- 
other state was not made to appear by affidavit to the 
clerk prior to the mailing of the summons cannot be sus- 
tained, the provisions of this section having been substan- 
tially complied with. Fidelity, etc., Co. v. Green, 200 N. C. 
535, 157 S. E. 797. But a different rule applies to § 484, re- 
lating to service by publication where the defendant's rights 
may be lost through lack of knowledge and lapse of time. 

SUBCHAPTER VI. PLEADINGS 
Art. 12. Complaint 
§ 507. What causes of action may be joined. 

I. IN GENERAL. 

No Undue Increase of Cost or Inconvenience. — Under the 
provisions of this section where there is but one subject- 
matter of the suit or action in which several parties have 
divergent interests, and they may all be united in one suit 
without undue increase of cost or inconvenience to the par- 
ties, a motion to dismiss for multifariousness and misjoinder 
of parties is properly denied. Craven County v. Investment 
Co., 201 N. C. 523, 524. 160 S. E. 753. 

Former Equity Pratctice Followed. — In interpreting this sec- 
tion with regard to multifariousness and misjoinder of par- 
ties our courts will take into consideration the principles of 
the old practice formerly existing exclusively in suits in 



§ 509 



CIVIL PROCEDURE 



§ 543 



equity. Craven County v. Investment Co., 201 N. C. S23, 
524, 160 S. E. 753. 

Each Cause Must Belong to Same Class. — 

Under this section, if the complaint states a connected 
story, forming a general scheme and tending to a single end, 
the plaintiff may unite in the same complaint several causes 
of action. Shafifer v. Morris Bank, 201 N. C. 415, 419, 160 
S. E. 481. 

III. CAUSES OF ACTION IN CONTRACT. 
Action for Rescission eind breeich. — Plaintiff may not unite 
in the same complaint an action for the recission of a con- 
tract and one for its breach. The rights are opposed and 
the remedies inconsistent. I<ykes & Co. v. Grove, 201 N. C. 
254, 159 S. E. 360. 

Art. 13. Defendant's Pleadings 
§ 509. Demurrer and answer. 

Extension of Time. — 

This section does not affect the right of the Superior 
Court Judge to allow an extension of time under section 536. 
Washington v. Hodges, 200 N. C. 364, 156 S. E. 912. 

§ 510. Sham and irrelevant defenses. 

Appeal. — 

The action of the judge of the Superior Court in passing 
upon the judgment of the clerk of the court in refusing to 
strike out the defendant's answer as sham and frivolous, 
under this section, is upon a matter of law requiring excep- 
tion thereto and an appeal to the Supreme Court. Wellons v. 
Xassiter, 200 N. C. 474, 157 S. E. 434. 

The Superior Court has the power and authority to de- 
termine on appeal the order of the clerk of the court in re- 
fusing a motion under this section to strike out the defend- 
ant's answer on the ground that it wasi sham and frivolous. 
Wellons V. Lassiter, 200 N. C. 474, 157 S. E. 434. 

Art. 14. Demurrer 
§ 511. Grounds for. 

I. IN GENERAL. 
All Demurrers Special. — Under our practice all demurrers 
are special and may be pleaded only for the causes specified 
in this section. Shaffer v. Morris Bank, 201 N. C. 415, 417, 
160 S. E. 481. 

II. LACK OF JURISDICTION. 
Plea That Industrial Commission Has Jurisdiction. — In an 

action by an administrator to recover for the wrongful death 
of his intestate, a plea to the jurisdiction of the court on 
the ground that the industrial commission had exclusive ju- 
risdiction of the cause is in effect a demurrer to the com- 
plaint, and where it does not appear from the complaint that 
the defendant regularly employed more than five employees 
in this state, the plea to the jurisdiction should be overruled. 
Southerland v. Harrell, 204 N. C. 675, 169 S. E. 423. 

V. DEFECT OF PARTIES. 

How Taken Advantage of.— See Sims v. Dalton! 202 N. C. 
249, 162 S. E. 550. affirming Lanier v. Pullman Co., 180 N. C. 
406, 105 S. E. 21; Yonge v. New York Life Ins. Co., 199 N. C. 
16, 153 S. E. 630; Wiggins v. Harrell, 200 N. C. 336, 156 S. 
E. 9. 

Lack of Necessary Parties. — Where a substituted trustee 
brings an equitable action to reform a deed of trust and 
certain mortgage notes which are negotiable and the hold- 
ers of these notes are not parties plaintiff a demurrer under 
this section will be sustained. First Nat. Bank v. Thomas, 
204 N. C. 599, 169 S. E. 189. 

VL MISJOINDER OF SEVERAL CAUSES OF ACTION. 

Applied in Grady v. Warren, 201 N. C. 693, 161 S. E. 319. 

VII. FAILURE TO STATE SUFFICIENT FACTS. 

Applied in Grady v. Warren, 201 N. C. 693, 161 S. E. 319, 

§ 515. Procedure after return of judgment. 

Discretion of Court.— See McKeel v. Latham, 202 N. C. 318, 
162 S. E. 747. affirming Morris v. Cleve, 197 N. C. 253, 148 S. 
E. 253, appearing in Code of 1931. 

A motion for leave to amend a complaint under this section 
addressed to the sound discretion of the trial court, and his 
order denying the motion is not subject to review on appeal 
in the absence of gros-s abuse of this discretion. McKeel v. 
Latham, 203 N. C. 246, 165 S. E. 694. 

Under this section where an action has been dismissed for 
misjoinder of parties and causes the action is not pending 



and the court has no power to allow a motion to amend the 
pleadings. Grady v. Warren, 202 N. C. 638, 163 S. E. 679. 

§ 517. Grounds not appearing in complaint. 

Pendency of Another Suit, — 

See State v. Gant, 201 N. C. 211, 229, 159 S. E- 427, follow- 
ing the rule stated in the Code of 1931. 

§ 518. Objection waived. 

Lack of Jurisdiction. — The defendant by filing an answer 
to the complaint in the Superior Court did not waive his 
right to demur ore tenus to the complaint on the ground 
that the court had no jurisdiction of the action and that the 
complaint does not state facts sufficient to constitute a 
cause of action. Finley v. Finley, 201 N. C. 1, 3, 158 S. E. 
549. 

Art. 15. Answer 

§ 519. Contents. 

II. DENIALS. 

A. General and Specific Denials. 

Where the only controverted fact has no bearing on the 

rights of the parties, judgment may be rendered on the 

pleadings upon the facts admitted. Jeffreys v. Boston Ins. 

Co., 202 N. C. 368, 162 S. E. 761. 

§ 521. Counterclaim. 

I. IN GENERAL. 
B. General Constructions. 
More Comprehensive than Old Set Off. — 

See Aetna Life Ins. Co. v. Griffin, 200 N. C. 251, 253, 156 
S. E. 515, following Smith & Co. v. French, 141 N. C. 1, 53 
S. E. 435, set out under this catchline in the Code of 1931. 

§ 523. Contributory negligence pleaded and 
proved. 



Applied in Farrell v. Thomas, etc 
S. E. 224. 



Co., 204 N. C. 631, 169 



Art. 17. Pleadings, General Provisions 

§ 533. When verification omitted; use in crim- 
inal prosecutions. 

Applied in State v. Dula, 204 N. C. 533, 168 S. E. 836. 

§ 534. Items of account; bill of particulars. 

Cited in Hood v. Love, 203 N. C. 583, 166 S, E. 743. 

§ 535. Pleadings construed liberally. 

In Favor of Pleader. — The court is required on demurrer 
to construe the complaint liberally "with a view to substan- 
tial justice between the parties," under this section, and, 
contrary to the common-law rule, every reasonable intend- 
ment is to be made in favor of the pleader. Joyner v. 
Woodard, 201 N. C. 315, 317. 160 S. E. 288. 

Statement of Cause of Action. — See Farrell v. Thomas, etc., 
Co., 204 N. C. 631. 6,i3, 169 S. E. 224, following first state- 
ment under this catchline in Code of 1931. 

§ 537. Irrelevant, redundant, indefinite plead- 
ings. 

Cross Reference. — 

As to power of Superior Court to determine on appeal 
order of clerk refusing motion to strike out answer as frivol- 
ous see § 510 and the note thereto. 

Cited in Hood v. Love, 203 N. C. 583, 166 S. E. 743. 

§ 542. Pleadings in libel and slander. 

Sufficient Publication. — Under this section where the com- 
plaint in an action for libel alleges that the defendant sent 
the plaintiff an open post card through the mails contain- 
ing libelous matter, without an allegation that such matter 
was read by some third person, the allegation of publica- 
tion is insufficient. McKeel v. Latham, 202 N. C. 318, 162 
S. E. 747. 

§ 543. Allegations not denied, deemed true. 

Admissions as Evidence in Other Actions. — The paragraph 
under this catchline is quoted and Michie's Code of 1931 is 
cited in Lowder v. Smith, 201 N. C. 642, 648. 161 S. E. 223. 



[2T] 



§ 545 



CIVIL PROCEDURE 



§ 567 



Art. 18. Amendments 
§ 545. Amendment as of course. 

Cross Reference. — As to allowing an amendment to make 
the defense plea more specific, see § 547 and the note thereto. 

Form and Notice of Motion to Amend. — After the time for 
answering has expired it has been the uniform practice to 
apply to the court for permission to amend. This appli- 
cation may be oral or written, but notice of such motion is 
required unless made during a term of court at which the 
action stands for trial. Carolina Discount Corp. v. Butler, 
200 N. C. 709, 712, 158 S. E. 249. 

§ 547. Amendments in discretion of courts. 

I. IN GENERAL. 
After Reversed. — Under this section upon the receipt of a 
certificate of reversal of judgment overruling a demurrer, the 
lower court may allow an amendment of the summons and 
complaint in accordance with the opinion. Commissioner of 
Banks v. Harvey, 202 N. C. 380, 162 S. I). 894. 

V. AMENDMENTS OF PROCESS. 
Absence of Clerk's Signature. — Under this section the ab- 
sence of the clerk's signature on a summons is a defect of 
a formal charactei- which may be waived by general ap- 
pearance and is therefore remediable by amendment. Hooker 
V. Forbes, 202 N. C. 364, 368, 162 S. E. 903. 

VI. AMENDMENTS AS TO PARTIES. 
Substitution of Corporation for President Thereof. — The 

trial judge has the power to allow the substitution of the 
company as the party plaintiff for the president of the com- 
pany, the character or nature of the action not being sub- 
stantially changed thereby. Street v. McCabe, 203 N. C. 
80. 164 S. E. 329. 

Making Trustee Party. — Where money is borrowed to pay 
off a prior mortgage and the lender takes another mort- 
gage to secure the money so borrowed which is later de- 
clared invalid for improper acknowledgment, and the lender 
brings action to foreclose under the first mortgage under the 
doctrine of equitable sirbrogation : Held, the trustee can be 
made a party by amendment if it should be necessary. In- 
vestment Securities Co. v. Gash, 203 N. C. 126, 164 S. E. 628. 

VIII. SPECIFIC INSTANCES. 
After Plea of Contributory Negligence. — Where, in an ac- 
tion involving the issue of negligence, contributory negli- 
gence is pleaded in substance by defendant, an amendment 
allowed defendant to make his allegation more specific is not 
held reversible error. Gholson v. Scott, 200 N. C. 429, 157 
S. E. 64. 

§ 551. Supplemental pleadings. 

It is within the discretionary power of the trial court to 

allow the filing of a supplemental complaint. Speas v. Greens- 
boro, 204 N. C. 239, 167 S. E. 807. 

SUBCHAPTER VII. TRIAL AND ITS 
INCIDENTS 

Art. 19. Trial 
§ 560. Continuance during term. 

Continuance Discretionary with Judge. — See In re Bank, 
of Whiteville. 202 N. C. 251, 162 S. E. 568, aifirming Dupree 
v. Virginia Home Ins. Co., 92 N. C. 418, appearing under 
this catchline in the Code of 1931. 

To Prove Bad Character of Witnesses. — Where defendant 
has asked for a continuance under this section without com- 
plying with the requirements and the purpose given for 
seeking the continuance is to secure depositions as to the 
bad character of the State's witnesses when defendant has 
already been permitted to cross-examine the witnesses and 
they admitted being prosecuted for criminal offenses, re- 
fusal of the trial judge to grant the continuance is not an 
abuse of discretion. State v. Banks, 204 N. C. 233, 167 S. E. 
851. 

§ 564. Judge to explain law, but give no opin- 
ion on facts. 

II. OPINION OF JUDGE. 
A. General Consideration. 
Purpose and Effect of Section. — 

An expression of an opinion by the judge as to an essential 
fact involved in an issue is condemned by this section. 



Abernethy v. State Planters' Bank, etc., Co., 202 N. C. 46. 
49, 161 S. E. 705. 

C. Illustrative Cases. 
1. Remarks Held Not Erroneous, 
d. Miscellaneous Remarks. 
Matters Subject to Mathematicail Calculation. — Where the 
answers to the issues as to the amounts recoverable, in case 
the defendants were found liable to the plaintiffs, is merely 
a matter of mathematical calculation, peremptory instruc- 
tions in regard thereto do not constitute prejudicial or re- 
versible error under this section. State v. Gant, 201 N. 
C. 211, 212, 159 S. E. 427. 

III. EXPLANATION OF LAW AND EVIDENCE. 
B. Explanation Required. 
1. In General. 
Rule Stated.— 

Where the trial court in his charge to the jury explains 
the law applicable and gives the contention of the parties, 
but fails to instruct the jury as to the application of the law 
to the substantial features of the case, the charge is insuf- 
ficient to meet the requirements of this section and a new 
trial will be awarded. Com'r of Banks v. Florence Mills, 
202 N. C. 509, 163 S. E. 598. 

Contentions of Parties. — Although it is not required by 
this section that the trial judge should state the con- 
tentions of tie parties to the jury, the practice has grown up 
in our courts as a helpful and accepted procedure, and a 
fair statement of the contentions of a party will not be held 
for error upon exception. Rocky Mount Sav., etc., Co. v. 
Aetna Life Ins. Co., 204 N. C. :82, 167 S. E. 854. 

Explanation of Subordinate Features of Case. — The charge 
of the court did not fail to comply with the provisions o£ 
this section if it sufficiently pointed out and explained the 
substantive features of the case, and as to subordinate fea- 
tures the prisoner should have aptly tendered prayers for 
special instructions. State v. Ellis, 203 N. C. 836, 167 S. E. 
67. 

2. Statement of Evidence. 

In General. — All that is required of a charge by this sec- 
tion is that the essential evidence ofTered at the trial be 
stated in a plain and correct manner, together with an ex- 
planation of the law arising thereon. State v. Fleming, 202' 
N. C. 512, 514, 163 S. E. 453; In re Beale, 202 N. C. 618, 163, 
S. E. 684. 

By virtue of this section where the charge of a trial court 
fails to state the evidence of a party relative to a material 
point and which directly bears on the amount recoverable, 
a new trial will be awarded. Myers v. Foreman, 202 N. C. 
246, 162 S. E. 549. 

Slight inaccuracies in the statement of the evidence in the 
instructions of the court to the jury will not be held for re- 
versible error when not called to the attention of the judge 
at the time and the charge substantially complies with this 
section. State v. Sterling, 200 N. C. 18. 19, 156 S. E- 96. 

Weight and Credibility. — Where the trial judge gives the 
contentions of the State and of the defendant, clearly stat- 
ing that they are but contentions in a trial for unintentional 
manslaughter, and correctly charges the law arising upon 
the evidence, objection that he has therein impinged upon 
the provisions of this section, in expressing his opinion upon 
the weight and credibility of the evidence, is untenable. 
State v." Durham, 201 N. C. 724, 726, 161 S. E. 398. 

§ 567. Demurrer to evidence. 

Plaintiff Entitled to Benefit of Inferences. — For cases fol- 
lowing the rule as set out under the first paragraph under 
this catchline in the Code of 1931, see Smith v. Raleigh Gran- 
ite Co., 202 N. C. 305, 162 S. E. 731; Pearson v. Standard Ga- 
rage, etc., Co., 202 N. C. 14, 161 S. E. 536; Almond v. OceoU 
Mills, 202 N. C. 97. 161 S. E. 731; Sampson v. Jackson Bros. 
Co., 203 N. C. 413, 166 S. E. ISl; Puckett v. Dyer, 203 N. 
C. 684, 167 S. E. 43; Pendergraft v. Royster, 203 N. C. 384, 
166 S. E. 285; Tuttle v. Bell, 203 N. C. 154, 165 S. E. 333; 
Thigpen v. Jefferson Standard Life Ins. Co., 204 N. C. 551, 
168 S. E. 845; Lynch v. Carolina Tel., etc., Co., 204 N. C. 
252, 257, 167 S. E. 847; Holton v. Northwestern Oil Co., 201 
N. C. 744, 746, 161 S. E. 391; Broadway v. Gate City Life 
Ins. Co., 201 N. C. 639, 640, 161 S. E. 71; Sanders v. Atlantic 
Coast Line R. Co., 201 N. C. 672, 676, 161 S. E- 320; Nance 
V. Merchants' Fertilizer, etc., Co., 200 N. C. 702, 158 S. E- 
486; Hunt v. Meyers Co., 201 N. C. 636, 637, 161 S. E. 74; 
Smithwick v. Colonial Pine Co., 200 N. C. 519, 157 S. E. 612; 
Moore v. Atlantic Coast Line R. Co., 201 N. C. 26, 158 S. 
E. 556. 

Evidence which raises only a mere suspicion or conjecture 



[28 



567 



CIVIIv PROCEDURE 



§ 600 



of the issue to be proved is insufficient to be submitted to 
the jury. Sutton v. Herrin, 202 N. C. 599, 163 S. E. 578; 
Shuford V. Scruggs. 201 N. C. 685. 687, 161 S. E. 315; Shu- 
ford V. Brown, 201 N. C. 17, 18, 158 S. E. 698. 

It is well settled that evidence which does no more than 
raise a suspicion, that a lact material to the cause of action 
alleged in the complaint, may be as alleged therein, is not 
sufficient for submission to the jury as tending to sustain 
the allegation of the complaint. Broughton v. Standard Oil 
Co., 201 N. C. 282, 288, 159 S. E. 321. 

Not Allowed after Verdict. — 

Where the court reserves his rulings on motions of non- 
suit until after rendition of a verdict the court may not set 
aside the verdict for insufficiency of the evidence as a mat- 
ter of law, and grant the motion for judgment as of non- 
suit made at the close of all the evidence. Batson v. City 
Laundry Co., 202 N. C. 560, 163 S. E. 600. 

Waiver. — 

Where the defendant in a civil action does not comply with 
the provisions of this section, in making a motion for judg- 
ment as of nonsuit he waives the question of the sufficiency 
of the evidence. Harris v. Buie, 203 N. C. 634, 163 S. E. 693. 

A motion for dismissal or for judgment of nonsuit made, 
imder this section at the close of the plaintiff's evidence and 
not renewed at the close of all the evidence is waived. Deb- 
nam v. Rouse, 201 N, C. 4.59. 460, 160 S. E. 471. 

Where a defendant makes a motion as of nonsuit at the 
close of the plaintiff's evidence, and upon the motion being 
overruled, introduces evidence in his own behalf, he waives 
his right to present the question of the sufficiency of the 
evidence to go to the jury by failing to renew his motion 
at the close of all the evidence, and his appeal will be re- 
garded as if no motion had been made by him. Lee v. Pen- 
land. 200 N. C. 340, 157 S. E. 31. 

Evidence Sufficient for Jury — Same — Illustrative Cases. — 

Evidence tending to show a definite contract by deceased 
to devise his property to plaintiff, and upon the death of the 
deceased intestate, is sufficient to be submitted to the jury 
in plaintiff's action against deceased's administrator for 
breach of the contract and motion as of nonsuit was prop- 
erly refused. Hager v. Whitner, 204 N. C. 747. 169 S. E. 645. 

Where the plaintiff brought suit on a policy of accident 
insuranr^e in which she was named beneficiary, and which 
provided for the payment of a certain sum if the assured 
was killed by being struck by a gasoline propelled vehicle: 
the evidence that the assured met his death by being struck 
by a vehicle propelled by gasoline was sufficient to be sub- 
mitted to the jury and motion for nonsuit was properly re- 
fused. Colboch V. Independent Life Ins. Co.. 204 N. C. 716. 

Where the answer pleads a counterclaim the plaintiff 
may not take a voluntary nonsuit over the defendant's ob- 
jection. Aetna Life Ins. Co. v. Griffin, 200 N. C. 251, 156 
S. E. 515. 

When Nonsuit Proper. — 

Where there is no evidence tending to sustain the plaintiff's 
cause of action the defendant's exceptions to the refusal of 
the trial court to grant his motion of nonsuit or his request 
■for a diiected verdict will be sustained on appeal. Fergu- 
son V. Glenn. 201 N. C. 128. 159 S. E. 5. 

Setting Aside after Refusal of Motion. — Where the trial 
court has refused to grant the defendant's motion as of non- 
suit, he may not set aside the verdict on the ground of the 
insufficiency of the evidence as a matter of law, but may do 
so only as a matter within his discretion. Lee v. Penland. 
200 N. C. 340, 157 S. E. 31. 

§ 569. Findings of fact and conclusions of law 
by judge. 

Separate Ccnclusionis <jf Facts and Law. — See Walker v. 
Walker. 204 N. C. 210. 167 S. E- 818, following the first par- 
agraph of the statement in the Code of 1931. 

Art. 20. Reference 
§ 573. Compulsory. 

II. GENERAL CONSIDERATION. 

What Constitutes a "Long Account." — There is no statu- 
tory or judicial definition of a "long account," but a correct 
conclusion as to whether an account was "long" would depend 
upon the facts and circumstances of a given case, and the 
account in controversy was correctly classified as a "long 
account." Dayton Rubber Mfg. Co. v. Horn, 203 N. C. 
732, 167 S. E. 42. 

Excaption to Order of Court. — 

A party who would preserve his right to a jury trial in a 
compulsory reference must object to the order of reference 
at the time it is made, and on the coming in of the re- 
port of the referee, if it be adverse, he should reasonably 

[2 



file exceptions to particular findings of fact made by the 
referee, tender appropriate issues based on the facts pointed 
out in the exceptions and raised by the pleadings, and de- 
mand a jury trial on each of the issues thus tendered. 
Marshville Cotton Mills v. Maslin, 200 N. C. 328, 329, 156 
S. E. 484. 

Applied in Marshville Cotton Mills v. Maslin, 200 N. C. 
.S28, 156 S. E. 484. 

§ 578. Report; review and judgment. 

When Decisions Reviewable. — 

Under this section the Superior Court, on exceptions taken 
to the referee's report, may affirm, set aside, make addi- 
tional findings, modify, or disaffirm the report. Wallace v. 
Benner, 200 N. C. 124, 156 S. E. 795. But the findings of 
fact of a referee approved by the trial judge cannot be re- 
viewed upon appeal if supported by any competent evidence. 
Id. 

Upon the filing of the report of the referee in a consent 
reference, as well as in a compulsory one, the trial court 
has the power to affirm, amend, modify, set aside, make 
additional findings and confirm, in whole or in part, or 
disaffirm the report of the referee, and where the court 
has made additional findings and there is evidence to sus- 
tain them the action of the court will be given the effect 
of a verdict of a jury and will not ordinarily be disturbed 
on appeal. Thigpen v. Farmers' Banking, etc., Co., 203 
N. C. 291, 165 S'. E. 720. 

The referee's findings are subject to review by the Dis- 
trict Judge and where exceptions are not filed in the Dis- 
trict Court to the admission of testimony before the ref- 
eree, they will not be considered by the Circuit Court of 
Appeals. Fruit Growers' Exp. Co. v. Plate Ice Co., 59 
F. (2d) 605. 

§ 579. Report, contents and effect. 

Cross Reference. — As to reviewing, on appeal, findings of 
fact by referee, see § 578 and the note thereto. 

Art. 21. Issues 
§ 582. Of fact. 

Pleading Must Raise Issues. — 

The refusal to submit issues tendered is not error when 
the issues tendered are not raised by the pleadings. Ellis 
Motor Co. v. Belcher, 204 N. C. 769. 

Art. 22. Verdict 
§ 591. Motion to set aside. 

Discretion of Judge. — 

The trial court has the power at any time during the term 
to set aside the verdict and grant a new trial in the ex- 
ercise of his sound legal discretion, and no appeal will lie 
therefrom. Strayhorn v. Fidelity Bank, 203 N. C. 383, 166 
S. E. 312. 

Where, under the provisions of this section, the trial court 
sets aside a verdict in his discretion as being contrary to 
the weight of the evidence his action is not reviewable on 
appeal in the absence of abuse of discretion. Goodman v. 
Goodman, 201 N. C. 808, 161 S. E. 686. 

The trial judge has the discretionary power during the 
term to set aside a verdict as being against the weight and ■ 
credibility of the evidence, and his action in so doing is not 
ordinarily reviewable, bitt an order setting aside the ver- 
dict on such grounds at a succeeding term of court upon 
a continuance of the defendant's motion therefor will be 
reversed on appeal where the record shows that the plain- 
tiff did not consent to the continuance and did not waive 
his right to accept thereto. Manufacturers' Finance Accept. 
Corp. V. Jones, 203 N. C. 523, 166 S. E. 504. 

SUBCHAPTER VIII. JUDGMENT 
Art. 23. Judgment 

§ 593. Judgments authorized to be entered by 
clerk; sale of property; continuance pending sale; 
writs of assistance and possession. 

Consent Judgment. — 

The clerk of the Superior Court has jurisdiction under 
this section to sign a consent judgment in an action even 
while the action is pending before a referee. Weaver v. 
Hampton, 204 N. C. 42, 167 S. E. 484. 

§ 600. Mistake, surprise, excusable neglect. 

I. IN GENERAL. 
Excusable Neglect and Meritorious Defense. — See Hender- 

9J 



§ 601 



CIVIL PROCEDURE 



§ 626 



son Chevrolet Co. v. Ingle, 202 N. C. 158, 162 S. E. 219, 
following the first paragraph under this catchline in the 
Code of 1931. 

The action of the trial court in setting aside the judg- 
ment for surprise and excusable neglect, etc., and placing 
the parties in statu quo, will be upheld on appeal, under 
this section, the record disclosing that the answer of the 
defendant set up a meritorious defense. Cagle v. William- 
son, 200 N. C. 727, 158 S. E. 391. 

The court's order setting aside the judgment by default 
against the corporation that had not been properly served 
with summons on the ground of excusable neglect was not 
error, the motion having been made in apt time and a mer- 
itorious defense also being found as a fact upon support- 
ing evidence. Hershey Corp. v. Atlantic Coast I,ine R. Co., 
203 N. C. 184, 165 S'. E. 550. 

Meritorious Defense Must Be Shown. — See Fellos v. Al- 
len, 202 N. C. 375, 162 S. E- 905, following the first para- 
graph in the Code of 1931. 

Under this section a verification of a complaint which is 
in substantial compliance with the law is not a sufficient 
ground for setting aside a judgment entered by default. 
Fellos V. Allen, 202 N. C. 375, 376, 162 S. E. 905. 

Where the trial court upon conflicting evidence finds as 
a fact that the summorLS in the action was in fact served 
on the defendant, the finding is conclusive. Hooker v. 
Forbes, 202 N. C. 364, 162 S. E. 903. 

Applied in Anderson v. National Union Fire Ins. Co., 
202 N. C. 835, 162 S. E. 922. 

III. APPLICATION OF PRINCIiPLES. 
A. Neglect of Party. 

Under this section wife's neglect to file auiswer upon as- 
surances of her husband that he would do so is excusable 
in joint action against them. Wachovia Bank, etc., Co. 
V. Turner, 202 N. C. 162, 162 S. E. 221. 

Applied in Colt Co. v. Martin, 201 N. C. 354, 160 S. E- 
287. 

B. Neglect of Counsel. 

Where a defendant has employed a licensed, reputable at- 
torney of good standing, residing in one county of the state, 
to defend an action brought in another county, and has 
put him in possession of the facts constituting his de- 
fense, and the attorney has prepared and duly filed an an- 
swer, and the case has been calendared and called for trial 
without notice to the defendant or his attorney, upon a 
judgment being obtained by default against the defendant, 
the defendant may, upon his motion aptly made, have the 
judgment set aside for surprise, excusable neglect, etc., 
under this section upon a showing of a meritorious defense, 
the negligence of the attorney, if any, not being imputed 
to the client, and the latter being without fault. Meece 
v. Commercial Credit Co., 201 N. C. 139, 159 S. E- 17. 

This section has no bearing on a case of neglect to file 
answer to a summons and complaint. Washington v. 
Hodges, 200 N. C. 364, 156 S. E. 912. 

§ 601. Stands until reversed. 

Apiplied in Myers v. Wilmington-Wrightsville, etc.. Cause- 
way Co., 204 N. C. 260, 167 S. E. 858. 

§ 610. In action for Recovery of personal prop- 
erty. 

In General. — Where the defendant in claim and delivery 
replevies the property, the form of the judgment against 
him should be for the possession of the property with dam- 
ages for its detention and costs, or for the value thereof 
if delivery cannot be had and damages for its detention. 
Boyd V. Walters, 201 N. C. 378, 160 S. E- 451. 

§ 614. Where and how docketed; lien. 

I. IN GENERAL. 

AppUed in Dillard v. Walker, 204 N. C. Q, 167 S. E. 632. 

II. CREATION OF THE LIEN AND PRIORITIES. 

B. Priorities. 
Between Lien and Subsequent Purchaser. — Upon the dock- 



eting of a judgment it becomes a lien on all the land to 
which the judgment debtor has title for a period of ten 
years from the time of its docketing, under this section, 
and the land is not relieved of the judgment lien by a sub- 
sequent transfer of title by the judgment debtor. Moses 
v. Major, 201 N. C. 613, 160 S. E- 890. 

A judgment creditor or his assignee has a lien on the 
lands of the judgment debtor, and where the judgment is 
duly docketed, under this section, the lien exists against 
a subsequent purchaser from the judgment debtor, carrying 

[30] 



with it the right to subject the property and improve- 
ments thereto to the satisfaction of the debt, but the judg- 
ment creditor or his assignee has no title or estate in the 
lands. Byrd v. Pilot Fire Ins. Co., 201 N. C. 407, 160 S. 
E. 458. 

IV. ISSUING EXECUTION. 
Leave of court is not necessary for execution upon a 
judgment after the lapse of three years where the execu- 
tion is issued after the effective date of the act of 1927, 
which repealed § 668, and within ten years from the date 
of the docketing of the judgment. Moses v. Major, 201 N. C. 
613, 160 S. E- 890. 

§ 615(a). Fees for filing transcripts of judgments 
by clerks of superior courts. — The fee for filing, 
docketing and indexing transcripts of judgments 
in the offices of the several clerks of the superior 
court in North Carolina shall be the same fee 
charged for filing, docketing and indexing tran- 
scripts of judgments in the office of the clerk of 
the superior court of the county from which the 
transcript of judgment is sent to said county. 
(1933, c. 435, s. 1.) 

§ 618. Payment by one of several; transfer to 
trustee for payor. 

Contribution between Joint Tort Feasors. — This section 
seems to abrogate the well- settled rule, that, subject to 
some exceptions (Gregg v. Wilmington, 155 N. C. 18, 70 
S. E. 1070), there can be no contribution between joint 
tort-feasors. Lineberger v. Gastonia, 196 N. C. 445, 146 
S. E. 79, 82. citing Raulf v. Elizabeth City Light, etc., 
Co., 176 N. C. 691, 97 S. E. 236. 

Surety Cannot Raise Question of Liability after Judg- 
ment.— By paying the whole judgment, one joint tort-feasor, 
under this section, can lose no right it has against the 
other tort-feasor or its surety. If the surety is a party 
to the judgment and bound thereby it cannot thereafter 
raise the question of its hability to the defendant, when it 
pays the judgment in full and requires the transfer of 
said judgment to a trustee by virtue of the provision of 
this section. Hamilton v. Southern R. Co., 203 N. C. 468, 
471, 166 S. E- 392. 

Art. 24. Confession of Judgment 
§ 624. Debtor to make verified statement. 

Section Strictly Construed. — 

It is essential to the validity of a judgment by confession 
that it be confessed and entered of record according to the 
provisions of this section. These are essential matters re- 
quired by the section to confer jurisdiction on the court, 
and to insure validity of the judgment. Farmers' Bank 
V. McCullers, 201 N. C. 440, 160 S. E- 494. 

Where a judgment confessed by a wife in favor of her 
husband shows only that it was based upon a sum alleged 
to be due on account of money advanced by the husband 
from time to time to take care of obligations due at the 
banks by the wife, and fails to state the items constitut- 
ing the claim, when advanced and to whom, and that the 
advancements were not gifts to the wife, the judgment is 
insufficient to meet the requirements of the statute, and is 
void. Farmers' Bank v. McCullers, 201 N. C. 440, 441, 160 
S. E. 494. 

Art. 25. Submission of Controversy without 
Action 

§ 626. Submission, affidavit, and judgment. 

Editor's Note.— 

The purpose of this section, is to enable parties to a 
question in difference, which might be the subject of a civil 
action, where they agree as to the facts involved, to sub- 
mit the facts to the court, for its decision of the question 
in difFerence, and for its judgment in accordance there- 
with, without the expense and formalities required for a 
civil action. Hicks v. Greene County, 200 N. C. li, 76, 156 
S. E. 164. 

Where the parties submit to the court questions of law 
arising upon facts agreed, without showing that they have 
rights involved in the questions, upon which they would be 
entitled to judgment, in a civil action the court is with- 
out jurisdiction, under this section, and should decline to 
consider the questions submitted for its decision. Id. 



§ 630 



CIVIL PROCEDURE 



§ 687(b) 



SUBCHAPTER IX. APPEAL 
Art. 26. Appeal 
§ 630. Certiorari, recordari, and supersedeas. 

Applied in Hamilton v. Southern R. Co., 203 N. C. 468, 

166 S. E. 392. 

§ 637. Judge determines entire controversy; 
may recommit. 

Appointment of Administrator. — On appeal from the or- 
der of a clerk appointing an administrator the Superior 
Court may reverse the order but the case should then be 
remanded. In re Styers, 202 N. C. 715, 164 S. E. 123. 

Upon appeal from an order of the clerk removing' cer- 
tain executors and administrators, c. t. a., and appointing 
others in their place, by virtue of this section, the Superior 
Court judge may, in the exercise of his discretional powers, 
retain the cause, reverse the order of the clerk and ap- 
point other administrators or a receiver to administrate the 
estate subject to the orders of the court, the entire matter 
being before the Superior Court on appeal. Wright v. 
Ball, 200 N. E. 620, 621, 158 S. E. 192. 

§ 643. Case on appeal; statement, service, and 
return. 

II. GENERAL CONSIDERATION— COUNTER CASE. 

Cited in McMahan v. Southern R. Co., 203 N. C. 805, 

167 S. E. 225. 

III. REQUISITES OF CASE ON APPEAL— EXCEP- 
TIONS. 

Narrowed to Substance and Amount. — When counsel come 
to prepare the statement of case on appeal, both record 
and briefs should be narrowed to matters of substance 
and moment. State v. Davis, 203 N. C. 13, 34, 164 S. E. 
737. 

§ 644. Settlement of case on appeal. 

Cited in McMahan v. Southern R. Co., 203 N. C. 805, 
167 S. E. 225. 

§ 646. Undertaking on appeal; filing; waiver. 

I. GENERAL CONSIDERATION. 
Compliance with This Section or Section 649. — As to the 

necessity, for those desiring an appeal, of complying with 
either the provisions of this section or those of § 649, see 
annotations under the latter section. 

§ 649. Appeals in forma pauperis; clerk's fees. 

Section Mandatory. — Where a party to a civil action 
which has been tried in the Superior Court, desires to ap- 
peal from a judgment rendered at such trial to this court, 
without giving security as required by this section, he 
must comply strictly with the provisions of this section, 
which are mandatory. Mclntire v. Mclntire, 203 N. C. 
631, 632, 166 S. E. 732. 

Statement of Attorney. — See Hanna v. Timberlake, 203 
N. C. 556, 557, 166 S. E. 733, following statement in Code 
of 1931. 

Order Must Be Obtained within Statutory Time. — An or- 
der allowing an appeal in forma pauperis entered by the 
clerk after the expiration of the statutory time is beyond 
the clerk's authority and the Supreme Court is without ju- 
risdiction to entertain the appeal and it will be dismissed, 
the provisions of this section being mandatory and not di- 
rectory. Powell V. Moore, 204 N. C. 654, 169 S. E. 281. 

§ 650. Undertaking to stay execution on money 
judgment. 

Applied in Hamilton v. Southern R. Co., 203 N. E. 136, 
164 S. E. 834; Hamilton v. Southern R. Co., 203 N. E. 468, 
166 S. E. 392. 

§ 653. How judgment for real property stayed. 

Effect on (Purchaser at Sale. — Where an appeal is taken 
from the order of confirmation of a sale under decree of 
a foreclosure of a deed of trust and an appeal bond is filed 
to stay execution, under this section and sections 654, 655, 
and the judgment of the lower court is reversed on appeal, 
the purchaser at the sale may be held liable to the mort- 
gagor for the former's taking of immediate possession of 
the property after the confirmation appealed from. Dixon 
V. Smith, 204 N. C. 480, 168 S. E. 683. 

§ 657. Judgment not vacated by stay. 

Cited in Dixon v. Smith, 204 N. E. 480, 168 S. E. 683. 

[3 



§ 659. Procedure after determination of appeal. 

Applied in Hamilton v. Southern R. Co., 203 N. C. 136, 
164 S. E. 834. 

SUBCHAPTER X. EXECUTION 
Art. 27. Execution 
§ 673. Against the person. 

Allegation and Proof. — Where plaintifif suggests fraud in 
defendant's affidavit of insolvency he must sufficiently 
allege and prove fraud or proceeding will be dismissed. 
Hayes v. Lancaster, 202 N. C. 515, 163 S. E. 602. 

§ 677. Property liable to sale under execution. 

Subsection TTiree. — 

Interest of Cestui Que Trust. — Under this subsection and 
the one immediately following an execution will not lie 
against the interest of a cestui que trust in real property 
held by trustee in active trust. Patrick v. Beatty, 202 
N. C. 454, 163 S. E. 572. 

Art. 28. Execution and Judicial Sales 

§ 687(a). Immediate advertisement; notice of 
sale and resale. — -When any mortgage or deed of 
trust on real property shall be foreclosed by ju- 
dicial proceedings it may be provided in the de- 
cree of foreclosure that the advertisement of the 
sale shall be begun at any time after the date of 
the decree of foreclosure, and such real property 
shall then be sold under judicial foreclosure pro- 
ceedings only after notice of sale has been duly 
posted at the courthouse door in the county for 
thirty days immediately preceding the sale and 
also published at any time during such thirty day 
period once a week for four successive weeks of 
not less than twenty-one days in some newspaper 
published in the county if a newspaper is published 
in the county, but if there is no newspaper pub- 
lished in said county, the notice of such sale must 
be posted at the courthouse door and three other 
public places in the county for thirty days im- 
mediately preceding the sale: Provided, however, 
that in case a resale of such real property shall be- 
come necessary under such judicial foreclosure 
proceedings, that such real property shall then be 
resold only after notice of resale has been duly 
posted at the courthouse door in the county for 
fifteen days immediately preceding the resale and 
also published at any time during such fifteen day 
period once a week for two successive weeks of 
not less than seven days in some newspaper pub- 
lished in the county if a newspaper is published in 
the county, but if there be no newspaper published 
in said county, the notice of resale must be posted 
at the courthouse door and three other public 
places in the county for fifteen days immediately 
preceding the resale. (1929, c. 44, s. 1; 1933, c. 
96, s. 1.) 

Editor's Note. — By Public Laws 1933, c. 96, "twenty- 
two" was changed to "twenty-one" as it now appears in 
the thirteenth line of the section, and "eight" was changed 
to "seven" as it now appears in the seventh from the last 
line of the section. 

§ 687(b). Minimum notice required in all sales.. 

— In any sale of real property under execution, 
deed of trust, mortgage or other contracts, wher- 
ever any statute calls for publication of notice in 
a newspaper for four successive weeks or for two 
successive weeks, the duration of said period shall 
be not less than twenty-one days for the one pe- 
riod of publication and not less than seven days 

1] 



§ 687(c) 



CIVIL PROCEDURE 



§ 816 



for the period of the other publication. (1939, c. 
44, s. 2; 1933, c. 96, s. 2.) 

Editor's Note.— Prior to Public Laws 1933, c. 96, this sec- 
tion required publication for "twenty-one" days for one 
period and "eight" days for the other. 

§ 687(c). Validation of certain sales. — All sales 
of real property under execution, deed of trust, 
mortgage or other contracts made since Feb- 
ruary 21, 1929, where the original sale was pub- 
lished for four successive weeks, and any re-sale 
published for two successive weeks shall be and 
the same are in all respects validated as to pub- 
lication of notice: Provided, nothing in this vali- 
dating section shall affect pending litigation. (1933, 
•c. 96, s. 3.) 

§ 690 (a). Sales on other days validated. — All 
sales of real or personal property heretofore made 
"by a sheriff of any county in North Carolina, in 
the manner provided by law for sale of real or 
personal property under execution, on any day 
other than the day now provided by law, be, and 
-the same are hereby validated. (1933, c. 79, s. 1.) 

Art. 30. Supplemental Proceedings 

§ 711. Execution unsatisfied, debtor ordered to 
answer. 

Purpose of Proceedings Supplemental. — 

Supplemental proceedings are based upon an execution 
-and may not be instituted against a defendant when there 
lias been no execution issued within three years from the 
institution of such supplemental proceedings. International 
Harvester Co. v. Brockwell, 202 N. C. 805, 164 S. E- 322. 

Same — Substitute for Creditor's Bill. — See Dillard v. Wal- 
ker, 204 N. C. 67, 167 S. E- 632, following statement in 
Code of 1931. 

§ 721. Debtor's ptoperty ordered sold. 

Where supplemental proceedings are instituted upon re- 
turn of execution unsatisfied on a Judgment against a hus- 
band and wife, and it appears that the husband is totally 
and permanently disabled and has no property upon which 
execution could be levied, but is receiving the sum of 
three hundred dollars a month under disability insurance, 
the judgment debtor is entitled, under his personal property 
•exemption, to the three hundred dollars each month if such 
amount is necessary for the support of himself and wife. 
■Commissioner of Banks v. Yelverton, 204 N. C. 441, 168 S. 
E. 505. 

•SUBCHAPTER XI. HOMESTEAD AND EX- 
EMPTIONS 

Art. 31. Property Exempt from Execution 
§ 730'. Sheriff to summon and swear appraisers. 

Editor's Note. — 

Public Laws 1933, c. 37, makes the amendment of 1931 
■applicable also in Duplin, Graham and Martin counties. 
Public Laws 1933, c. 147, made the amendment of 1931 
.■applicable in Onslow county. 

SUBCHAPTER XII. SPECIAL PROCEED- 
INGS 

Art. 32. Special Proceedings 
§ 763. Reports of commissioners and jurors. 

Power of Clerk. — The clerk has no power to confirm a 
■sale reported by a commissioner until the expiration of 
twenty days from the date on which the report was filed. 
Vance v. Vance, 203 N. C. 667, 668, 166 S. E- 901. 

§ 765. Commissioner of sale to account in sixty 

•days. — ^In all actions or special proceedings when 
3. person is appointed commissioner to sell real or 
personal property, he shall, within sixty days af- 
ter the maturity of the note or bond for the bal- 
ance of the purchase money of said property, or 
the payment of the amount of the bid when the 

[3 



sale is for cash, file with the clerk of the superior 
court a final account of his receipts and disburse- 
ments on account of the sale; and the clerk must 
audit the account and record it in the book in 
which the final settlements of executors and ad- 
ministrators are recorded. If any commissioner 
appointed in any action or special proceeding be- 
fore the clerk fails, refuses or omits to file a final 
account as prescribed in this section, or renders 
an insufficient or unsatisfactory account, the clerk 
of the superior court shall forthwith order such 
commissioner to render a full and true account, as 
required by law, within twenty days after service 
of the order. Upon return of the order, duly 
served, if such commissioner shall fail to appear or 
refuse to exhibit such account, the clerk of the 
superior court may issue an attachment against 
said commissioner for a contempt and commit him 
till he exhibits such account, or files a bond for the 
amount held or unaccounted for as is prescribed 
by law for administrators, the premium for which 
is to be deducted from the commissioner's fee, 
earned by said commissioner in said action or 
special proceeding. (Rev., s. 725; 1901, c. 614, ss. 
1, 2; 1933, c. 98.) 

Editor's Note. — The last two sentences of this section, 
giving the clerk power to force a final settlement, were 
added by Public Laws 1933, c. 98. 

SUBCHAPTER XIII. PROVISIONAL REM- 
EDIES 

Art. 33. Arrest and Bail 
§ 768. In what cases arrest allowed. 

Subdivision One. — 
In General. — 

A nonresident of the state may be arrested here in a 
civil action in like manner with a resident for sufficient 
cause under this section, but he may not be arrested and 
held to bail in a civil action instituted in this state for no 
cause other than that of nonresidence; to subject a non- 
resident to liability on the sole ground of his nonresidence 
would transgress his right of free ingress and egress and 
would abrogate his constitutional guaranty of immunity. 
Little V. Miles, 204 N. C. 646, 650, 169 S. E- 220. 

§ 778. Defendant's undertaking. 

Voluntary Appearance. — The condition of the undertaking 
that the defendant shall, at all times during the pendency 
of the action, render himself amenable to the process of 
the court is met when the defendant voluntarily appears in 
court upon the hearing of the motion against his surety. 
Stepp V. Robinson, 203 N. C. 803, 805, 167 S. E. 147. 

§ 792. Surrender of defendant. 

Cross References. — ^As to surrender of defendant when he 
appears upon motion against the surety, see § 794 and an- 
notations thereunder. 

§ 794. Proceedings against bail by motion. 

Where the defendant, eippeared in open court, in response 
to notice served upon his surety or bail, he was then "amen- 
able to the process of the court," notwithstanding his re- 
fusal thus to surrender himself, and the court should have 
ordered execution against the person of the defendant, rather 
than hold the surety or bail, for failure to surrender him. 
Stepp v. Robinson, 203 N. C. 803, 804, 167 S. E. 147. 

Art. 34. Attachment 
§ 807. Execution, levy, and lien. 

Enforceable against Subsequent iPurchasers. — When the 
oiificer has complied with the provisions of this section, the 
plaintiffs have a lien on such property, which is enforceable 
against all subsequent purchasers from the defendant. New- 
berry v. Meadows Fert. Co., 203 N. C. 330, 338, 166 S. E. 79. 

§ 816. All property liable to attachment. 

In General. — 

Under this section, all property in this state, whether real 

2] 



§ 819 



CIVIL PROCEDURE 



§ 867 



or personal, tangible or intangible, owned by a nonresident 
defendant in an action to recover on any of the causes of 
action included within the provisions of § 798, is liable to 
attachment. Newberry v. Meadows Fert. Co., 203 N. C. 
330, 337, 166 S. E. 79. 

§ 819. Pr'oceedings against garnishee. 

Execution and Proceedings to Enforce. — Under this sec- 
tion no lien attaches to any specific property of the gar- 
nishee until the issuance of execution on the judgment and 
proceedings to enforce such execution. Newberry v. Mead- 
ows Fert. Co., 203 N. C. 330, 166 S. E- 79. 

§ 827. Motion to vacate or increase security. 

Motion May Be Made by One of Several Defendants. — 

Any one of several defendants whose property has been at- 
tached has such an interest in the action as to maintain 
a motion to vacate the attachment. , Luff v. Levey, 203 
N. C. 783, 166 S. E- 922. 

Vacation in Case Increased Bond Is Not Filed. — The judge 
of the Superior Court has the power to order the plaintiff 
to give further security or an increased bond, under this 
section, but he may not add a condition to the order that 
the attachment be vacated ipso facto if the increased bond 
is not filed by a certain time, and it appearing that the time 
set by the court for filing the increased bond has expired, 
the plaintiff will be given a reasonbale time for filing the 
bond. Luff v. Levey, 203 N. C. 783, 166 S. E. 922. 

Art. 35. Claim and Delivery 

§ 836. Defendant's undertaking for replevy. 

The recovery agsdnst the surety can in no event exceed 
the penalty of the bond. Boyd v. Walters, 201 N. C. 378, 
160 S. E. 451. 

Form of Judgment against Surety. — Where the defendant 
in claim and delivery replevies the property, giving bond 
for the retention to cover loss in the action, the form of the 
judgment against the surety on the bond should be for the 
full amount of the bond, to be discharged upon return of 
the property and the payment of damages and costs recov- 
ered by the plaintiff. Boyd v. Walters, 201 N. C. 378, 160 
S. E. 451. 

§ 840. Property claimed by third person; pro- 
ceedings. — When the property taken by the sher- 
iff is claimed by any person other than the plain- 
tiff or defendant the claimant may interplead upon 
filing an affidavit of his title and right to the pos- 
session of the property, stating the grounds of 
such right and title; and upon his delivering to the 
sheriff an undertaking in an amount double the 
value of the property specified in intervenor or 
third person's affidavit, for the delivery of the prop- 
erty to the person entitled to it, and for the pay- 
ment of all such costs and damages as may be 
awarded against him; this undertaking to be exe- 
cuted by one or more sufficient sureties, accom- 
panied by their affidavits that they are each worth 
double the value of the property. A copy of this 
undertaking and accompanying affidavit shall be 
served by the sheriff on the plaintiff and defend- 
ant at least ten days before the return day of the 
summons in the action, when the court trying it 
shall order a jury to be impaneled to inquire in 
whom is the right to the property specified in plain- 
tiff's complaint. The finding of the jury is con- 
clusive as to the parties then in court, and the 
court shall adjudge accordingly, unless it is re- 
versed upon appeal. In a court of a justice of the 
peace he may try such issue unless a jury is de- 
manded, and then proceedings are to be conducted 
in all respects as in jury trials before justices of 
the peace. In a court of a justice of the peace an 
interpleader shall not be required to serve on the 
plaintiff and defendant the affidavits and bonds 
required by this section, ten days before return 
day; but if said bond and affidavit are filed by any 
person owning the property when such case is 
called for trial, he shall be allowed to interplead: 



Provided that this section shall not be construed 
to prevent any such intervener or third person 
from intervening and asserting his claim to the 
property, or any part thereof, without giving bond 
as herein required, where such intervener or other 
third person does not ask for possession of the 
property pending the trial of the issue. (Rev., s. 
800; Code, s. 331; C. C. P., s. 186; 1793, c. 389, s. 3; 
R. C, c. 7, s. 10; 1913, c. 188; 1933, c. 131.) 

Editor's Note.— Public Laws 1933, c. 131, substituted the 
words "intervenor or third person," now appearing in the 
eighth and ninth lines, for the word "plaintiff." It also added 
the proviso at the end of the section, declaring bond not 
necessary. 

Husband and Wife. — 

Where the plaintiffs attach property and bring action 
against a husband and wife to have a deed from the hus- 
band to the wife set aside and to subject the property at- 
tached to the payment of the judgment, the wife has a 
right to set up her claim to the property attached, and the 
refusal of the trial court to require her to give an inter- 
pleader bond under this section is not error. Unaka, etc., 
Nat. Bank v. Lewis, 201 N. C. 148, 159 S. E- 312. 

Art. 36. Injunction 

§ 843. When temporary injunction issued. 

II. GENERAL CONSIDERATIONS. 
Increasing Bond. — Under this section the garnishees may 
be restrained and enjoined from making further payments 
on their indebtedness to the defendant, until the final de- 
termination of the action, but the defendant and the gar- 
nishees may move that the bond required of the plaintiffs 
shall be increased in amount, to the end that said defend- 
ant and the garnishees shall be fully protected against loss 
or damage resulting from the injunction. Newberry v. 
Meadows Fert. Co., 203 N. C. 330, 339, 166 S. E- 79. 

Art. 37. Receivers 
§ 860. In what cases appointed. 

Effect of Instrument Giving Mortgagee Power of Appoint- 
ment of Trustee. — The appointment of a receiver is an equi- 
table remedy and the provisions of this and the following 
section enacted before the giving of a deed of trust upon 
lands may not be entirely supplanted by a provision in the 
instrument which gives the mortgagee or trustee the une- 
quivocal right to the appointment of a receiver in the event 
of the happening of certain conditions so as to prevent our 
courts sitting in their equity jurisdiction from administer- 
ing the equities to which the mortgagor is entitled under 
the facts. Woodall v. North Carolina Joint Stock Land 
Bank, 201 N. C. 428, 160 S. E- 475. 

§ 861. Appointment refused on bond being 
given. 

Applied in Woodall v. North Carolina Joint Stock Land 
Bank, 201 N. C. 428, 160 S. E. 475. 

Art. 38. Deposit or Delivery of Money or Other 
Property 

§ 865. Defendant ordered to satisfy admitted 
sum. 

Where in an action on a note the defendants admit liabil- 
ity in a certain part thereof but deny liability for the bal- 
ance: Held, an order directing that plaintiff recover the 
amount admitted to be due without prejudice to plaintiff's 
right to litigate the balance of the note is authorized by 
this section. Meadows Fert. Co. v. Farmers Trading Co., 
203 N. C. 261, 165 S. E. 694. 

SUBCHAPTER XIV. ACTIONS IN PAR- 
TICULAR CASES 

Art. 39. Mandamus 

§ 867. For money demand. — In application for 
a writ of mandamus when the plaintiff seeks to en- 
force a money demand, the summons, pleadings 
and practice are the same as prescribed for civil 
actions: "Provided that in all applications seeking 
a writ of mandamus to enforce a money demand 



N. C. Supp.— 3 



[33] 



871 



ClvERK OF SUPERIOR COURT 



§ 962 



on actions ex contractu against any county, city, 
town or taxing district within the state, the ap- 
plicant shall allege and show in the complaint that 
the claim or debt has been reduced to a final judg- 
ment establishing what part of said judgment, if 
any, remains unpaid, what resources, if any, are 
available for the satisfaction of the judgment, in- 
cluding the actual value of all property sought to 
be subjected to additional taxation and the neces- 
sity for the issuing of such writ. (Rev., s. 823; 
Code, s. 623; 1871-3, c. 75, s. 2; 1933, c. 349.) 

Editor's Note. — 

By Public Laws 1933, c. 349, the proviso, relating to man- 
damus against local units to enforce collection of judgments, 
was added. 

Art. 40. Quo Warranto 
§ 871. Action by private person with leave. 

Interest of Public Is Par5unoiint. — In proceedings under 
this and § 869 to try title to a public office the interest of 
the public is involved and is paramount to the rights of 
the relator, and the consent of the attorney-general, the fil- 
ing of the bond, etc., as required by this section, is a pre- 
requisite to the right of the relator to maintain the action. 
Cooper V. Crisco, 201 N. C. 739, 740, 161 S. E. 310. 

Permission Essential. — 

Same — Second Suit after Voluntary Nonsuit. — Common- 
law procedure by quo warranto, and proceedings by infor- 
mation in the nature thereof have been abolished by § 869 
and the remedy in such matters is under the provisions of 
this section and where the relator has complied with these 
conditions and takes a voluntary nonsuit and within a year 
brings another action upon the same subject-matter against 
the same respondent, but fails to obtain permission to bring 
the second action or to file bond therefor until the day be- 
fore judgment is signed, his delay is fatal and the action 
is properly dismissed, it being necessary that the provisions 
of the section be again complied with before the bringing 
of the second action. Cooper v. Crisco, 201 N. C. 739, 161 
S. E. 310. 

Art. 41. Waste 
§ 891. Action by tenant against cotenant. 

Applied in Daniel v. Tallassee Power Co., 204 N. C. 274, 
168 S. E. 217. 

SUBCHAPTER XV. INCIDENTAL PRO- 
CEDURE IN CIVIE ACTIONS 

Art. 43. Compromise 
§ 896. Tender of judgment. 

Error to Dismiss. — Where on the admissions in the plead- 
ings the plaintiff is entitled to recover any amount it is 
error for the trial court to dismiss the action as in case of 
nonsuit, and the fact that the defendant had tendered the 
amount admitted to be due with interest and cost to the 
time of filing answer, and had paid it into court subject to 
the plaintiff's order does not vary this result. Penn v. 
King, 202 N. C. 174, 162 S. E. 376. 

Art. 44. Examination of Parties 
§ 900. Adverse party examined. 

Answers as Evidence. — Where a defendant has been ex- 
amined after the filing of the complaint in the action, but 
before trial in accordance with this section, his answers to 
the questions propounded on the examination are compe- 
tent as evidence at the trial. Swainey v. Great Atlantic, 
etc.. Tea Co., 204 N. C. 713, 169 S. E- 618. 

Art. 45. Motions and Order's 
§ 912. Notice of motion. 

Compliance with Section Required. — Notice of a motion 
to set aside a judgment must ordinarily be given as re- 
quired by this section, and the pleadings in an action to 
reform a deed of trust upon allegations of mutual mistake 
are insufficient as notice of a motion to set aside the de- 
cree of foreclosure for irregularity and surprise, etc., the 
pleadings in the suit for reformation containing no allega- 
tions of irregularities in the foreclosure or of surprise. Vir- 

[3 



ginia-Carolina Joint Stock Bank v. Alexander, 201 N. C. 453, 
160 S. E. 462. 
Ten Day Notice Required 

Unless a verbal or written motion to amend a complaint 
after time for filing answer has expired be made at the 
trial term of the action, previous notice of ten days must be 
given the defendant unless the time is shortened by the 
court, and an order allowing the amendment to be made, 
entered without such notice, is irregular. Carolina Discount 
Corp. V. Butler, 200 N. C. 709, 158 S. E. 249. 



CHAPTER 13 

CLERK OF SUPERIOR COURT 

Art. 1. The Office 

§ 925. Judge of probate abolished; clerk acts 
as judge. 

Jurisdiction. — 

Although the clerks of the Superior Courts have no eq- 
uity jurisdiction, they are given probate jurisdiction by 
this section, and in the exercise of their probate jurisdic- 
tion they may hear and rule on a petition of an executor 
for authorization to operate the estate's farms to preserve 
the property pending the determination of caveat proceed- 
ings. Hardy & Co. v. Turnage, 204 N. C. 538, 168 S. E. 
823. 

§ 927. Clerk's bond. 

Liability on Bond. — 

Where a clerk of the Superior Court has forged the sig- 
natures of Confederate pensioners to warrants issued by 
the State Auditor and sent to him for payment to the per- 
sons entitled, and has witnessed such signatures, cashed 
the warrants, and converted the funds to his own use, such 
sums are received by him by virtue of and under color of 
his office, and come within the terms of his bonds given 
under the provisions of this section, and the surety thereon 
is liable within the penalty of the bonds for the amount so 
embezzled. State v. Gant, 201 N. C. 211, 159 S. E- 427. 

Effect Where Penalty of Bond Exceeds Amount Pre- 
scribed. — Although this section is directory and prescribes 
the penalty on the bond of a clerk of the Superior Court, 
both the clerk and his surety are presumed to know the 
provisions of the statute, and where the clerk has volun- 
tarily executed a bond in a greater sum, and the surety 
has accepted premiums based on a bond in this amount, the 
surety is estopped to deny the validity of the bond, and the 
plaintiff may recover of the surety, upon a proper showing, 
to the full amount of the penalty of the bond. State v. 
Gant, 201 N. C. 211, 213, 159 S. E. 427. 

Art. lA. Assistant Clerks 

§ 934(a). Appointment; oath; powers and juris- 
diction; responsibility of clerks. 

Funds of minors paid into the hands of the assistant clerk 
of the Superior Court, appointed guardian, were not paid 
into court, and the surety on the guardianship bond may 
not successfully contend that the clerk's bond was liable 
therefor. State v. Royal Indemnity Co., 203 N. C. 420, 166 
S. E- 327. 

Art. 5. Money in Hand; Investments 

§ 962. Payment of money for indigent children 
and persons non compos mentis. — When any 
moneys in the amount of three hundred dollars or 
less are paid into court for any minor, indigent or 
needy child or children for whom no one will be- 
come guardian, upon satisfactory proof of the ne- 
cessities of such minor, child or children, the clerk 
may upon his own motion or order pay out the 
same in such sum or sums at such time or times 
as in his judgment is for the best interest of said 
child or children, or to some discreet and solvent 
neighbor of said minor, to be used and faithfully 
applied for the sole benefit and maintenance of such 
minor indigent and needy child or children. The 
clerk shall take a receipt from the person to whom 
any such sum is paid and shall require such person 
to render an account of the expenditure of the 

4] 



§ 962(a) 



CONVEYANCES 



§ 1013 



sum or sums so paid, and shall record the receipt 
and the accounts, if any are rendered by order of 
the clerk, in a book entitled, Record of Amounts 
Paid for Indigent Children, and such receipt shall 
be a valid acquittance for the clerk. That in all 
cases where a minor child is now or may hereaf- 
ter be the beneficiary of any policy of life insurance 
and the sum due to said minor child by virtue of 
any such policy does not exceed three hundred 
dollars, the insurance company which issued said 
policy may pay the sum due thereunder to the 
clerk of the superior court of the county where 
said minor child resides whose duty it shall be to 
receive it, and said clerk shall issue and deliver to 
such insurance company his receipt for the sum so 
paid, which shall be a complete release and dis- 
charge of said company from any and all liability 
to said minor child under and by virtue of any 
such policy of insurance. Moneys so paid to said 
clerk shall be held and disbursed by him in the 
manner and subject to the limitations provided by 
this section. This section shall also apply to in- 
competent or insane persons, and it shall be the 
duty of any person or corporation having in its 
possession $300.00 or less for any minor child or 
indigent child, or incompetent or insane person 
to pay same in the office of the clerk of the su- 
perior court, and the clerk of the superior court is 
hereby authorized and empowered to disburse the 
sum thus paid into his office, upon his own mo- 
tion or order, without the appointment of a guard- 
ian. (Rev., s. 934; 1899, c. 82; 1911, c. 29, s. 1; 
1919, c. 91; 1924, c. 1, s. 1; 1927, c. 76; 1929, c. 15 s. 
1; 1933, c. 363.) 

Cross References. — As to application of section when judge 
does not provide for the disbursement upon an order con- 
firming partition, see § 2180 and note thereto. 

Editor's Note. — 

The last sentence of the section, relating to payment of 
$300 or less held for a "minor child or indigent child, or in- 
competent or insane person," was added by Public I,aws 
1933, c. 363. 

§ 962(a). Limitation on investment of trust 
funds. 

Editor's Note. — For act applicable in Cleveland County 
only, see Public Laws 1933, c. 110. 

§ 962(b). Investments prescribed; funds from 
lands of infants and persons non compos mentis. 

Editor's Note. — For act applicable in Cleveland County 
only, see Public Laws, 1933, c. 110. 



CHAPTER 15 

COMMON LAW 
§ 970. Common law declared to be in force. 

General Consideration. — 

So much of the common law as is in force by virtue of 
this section may be modified or repealed, but those parts 
of the common law which are imbedded in the Constitution 
are not subject to control. State v. Mitchell, 202 N. C. 439, 
444, 163 S. E. 581. 



CHAPTER 17 

CONTEMPT 
§ 981. Punishment. 

Power of Industrial Commission. — The Industrial Commis- 
sion proceeding under the Workmen's Compensation Act, 
being expressly given the authority to subpcena witnesses 
and have them give evidence at the hearing, acts in a judi- 
cial capacity in adjudging in contempt a witness who re- 
fuses to give material evidence, and in imposing a sentence 

[3 



or a fine or imprisonment under the provisions of this sec- 
tion. In re Hayes, 200 N. C. 133, 134, 156 S. E. 791. 



CHAPTER 18 

CONTRACTS REQUIRING WRITING 

§ 987. Contracts charging representative per- 
sonally; promise to answer for debt of another. 

A promise by the president of a bank to beconie person- 
ally liable for a deposit when supported l)y a new and in- 
dependent consideration constitutes an original undertaking 
by him, and the agreement does not come within the pro- 
visions of this section. Dillard v. Walker, 204 N. C. 16, 
167 S. E. 636. 



CHAPTER 19 

CONVEYANCES 

Art. 1. Construction and Sufficiency 

§ 991. Fee presumed, though word "heirs" 
omitted. 

Interpreted in Accord with Intent. — 

The presumption of fee raised by this section is rebutted 
by the fact that the deed in this case intended to convey 
only a life estate which is manifest from the many re- 
straining expressions contained therein. Boomer v. Grant- 
ham, 203 N. C. 230, 231, 165 S. E- 698. 

Art. 2. Conveyances by Husband and Wife 

§ 997. Instruments affecting married woman's 
title; husband to execute; privy examination. 

II. EXECUTED BY BOTH HUSBAND AND WIFE. 

C. Acknowledgment and Privy Examinations of Feme 

Covert. 
Deed Void without Privy Examination. — 

Where the private examination of a married woman is 
not taken to a deed of trust executed by her it is void. 
Boyett v. First Nat. Bank, 204 N. C. 639, 169 S. E. 231. 

Art. 3. Fraudulent Conveyances 

§ 1005. Conveyance with intent to defraud 
creditors void. 

II. WHAT CONSTITUTES FRAUD. 
C. Badges of Fraud. 
Badges of Fraud Defined — Permitting Mortgagor to Re- 
main in Possession and Sell Stock of Merchandise. — See 

Morris Plan Bank v. Cook, 55 F. (2(1) 176, 179, following the 
statement in the Code of 1931. 

§ 1013. Sales in bulk presumed fraudulent. — The 

sale in bulk of a large part or the whole of a stock 
of merchandise, otherwise than in the ordinary 
course of trade and in regular and usual prosecu- 
tion of the seller's business, shall be prima facie 
evidence of fraud, and void as against the creditors 
of the seller, unless the seller, at least seven days 
before the sale, make an inventory showing the 
quantity and, so far as possible, the cost price to 
the seller of such articles included in the sale, and 
shall seven daj's before the proposed sale notify 
the creditors of the proposed sale, and the price, 
terms and conditions thereof. If the owner of 
said stock of goods shall at any time before the 
sale execute a good and sufficient bond, to a trus- 
tee therein named, in an amount equal to the ac- 
tual cash value of the stock of goods, and condi- 
tioned that the seller will apply the proceeds of 
the sale, subject to the right of the owner or own- 
ers to retain therefrom the personal property ex- 
emption or exemptions as are allowed by law, so 
far as it will go in payment of debts actually ow- 
ing by the owner or owners, then the provisions of 

5] 



§ 1023 



CORPORATION COMMISSION 



§ 1112(c) 



this section sl.r^U not apply. Such sale of mer- 
chandise in bulk shall not be presumed to be a 
fraud as against any creditor or creditors who 
shall not present his or their claim or make de- 
mand upon the purchaser in good faith of such 
stock of goods and merchandise, or to the trustee 
named in any bond given as provided herein, with- 
in tv/elve months from the date of maturity of his 
claim, and any creditor who does not present his 
claim or make demand either upon the purchaser 
in good faith or on the trustee named in a bond 
within twelve months from the date of its matu- 
rity shall be barred from recovering on his claim 
on such bond, or against the purchaser, in good 
faith, of such stock of goods in bulk. Nothing 
in this section shall prevent voluntary assignments 
or deeds of trust for the benefit of creditors as 
now allowed by law, or apply to sales by executors, 
administrators, receivers or assignees under a vol- 
untary assignment for the benefit of creditors, 
tmstees in bankruptcy, or by any public officers 
-under judicial process. (1907, c. 633; 1913, c. 30, 
s. 1; Ex. Bess. 1913, c. 6, s. 1; 1933, c. 190.) 

Editor's Note. — The words "seven days before the pro- 
-posed sale," near the end of the first sentence, were sub- 
stituted by Public I,aws 1933, c. 190, for the words "within 
said time." 

iPurchaser Not Liable. — ^Under the provisions of this sec- 
lion a creditor, at most, would be entitled to have the trans- 
■fer set aside, but not to hold the purchaser personally lia- 
ble. Goldman & Co. v. Chank, 200 N. C. 384, 156 S. E. 919, 
discussing but not deciding whether sale was contrary to 
section. 



CHAPTER 21 

CORPORATION COMMISSION 
Art. 1. Organization 

§§ 1023-1034: Repealed by Acts 1933, ch. 134, 
codified as §§ 1112(a)-1113(q). 

Art. 2. Corporations and Business within Control 
of Commission 

§ 1035. Corporations and business within con- 
trol of commission. 

Subts«ction Two — Telephone Company Subject to State 
Control. — 

A local telephone company having an arrangement for 
the transmission of long distance messages over the lines 
of another company for pay, is a public- service corporation 
and comes within the provisions of this section. Horton v. 
Interstate Tel., etc., Co., 202 N. C. 610, 163 S. E- 694. 

Art. 8. Utilities Commission 

§ 1112(a). Office of utilities commissioner cre- 
ated. — There is hereby created the office of util- 
ities commissioner, who shall have general power 
and control over the public utilities and public- 
service corporations of the state, and such super- 
vision as may be necessary to carry into full 
force and effect the laws regulating the companies, 
corporations, partnerships, and individuals herein- 
after referred to, and to fix and regulate the rates 
charged the public for service, and to require such 
efiicient service to be given as may be reasonably 
necessary. (1933, c. 134, s. 3.) 

§ 1112(b). Supervisory powers. — ■ Under the 
rules and regulations herein prescribed and subject 
to the limitations hereinafter set forth, the said 
utilities commissioner shall have general supervi- 

L3 



sion over the rates charged and the service given, 
as follows, to wit: 

(1) By railroads, street railways, steamboats, 
canals, express and sleeping-car companies, and all 
persons, firms or corporations engaged in the car- 
rying of freight or passengers or otherwise en- 
gaged as common carriers; 

(2) By telephone and telegraph companies and 
all other companies engaged in the transmission 
of messages, and by all firms and individuals own- 
ing or operating telephone or telegraph lines in 
the state; 

(3) By electric light, power, water, and gas 
companies, and corporations, other than such as 
are municipally owned or conducted, and all other 
companies, corporations, or individuals engaged 
in furnishing electricity, electric light current, 
power, or in transmitting or selling the same or 
producing the same from the water courses of this 
state; 

(4) By all water power and hydroelectric com- 
panies or corporations now doing business in this 
state or which may hereafter engage in doing busi- 
ness in this state, whether organized under the 
laws of this state or under the laws of any other 
state or country, and such companies and corpora- 
tions are deemed to be public-service companies 
and subject to the laws of this state regulating the 
same; 

(5) By flume companies, corporations, other than 
municipal corporations, or individuals owning or 
operating public sewerage systems in the state of 
North Carolina; 

And the said utilities commissioner is hereby 
vested under this section with all power necessary 
to require and compel any public utility or public- 
service corporation of the kinds herein designated or 
any other class of public utility to provide and fur- 
nish to the citizens of this state reasonable service 
of the kind it underakes to furnish and fix and regu- 
late the reasonable rates and charges to be made 
to the citizens of the state who may be entitled to 
use the same under such rules and regulations as 
may be lawfully prescribed. (1933, c. 134, s. 3.) 

§ 1112(c). Governor to appoint commissioner; 
term of office. — On or before the first day ol April, 
1933, the governor, with the advice and consent of 
the senate, shall appoint a utilities commissioner 
who shall enter upon the duties of his office on 
the first day of January, 1934, and hold his said 
office until the first day of January, 1935, or until 
his successor has been elected and qualified. 

In the general election in 1934 and quadrennially 
thereafter, there shall be elected a utilities com- 
missioner whose term of office shall begin on the 
first day of January, 1935, and quadrennially there- 
after, and continue for a term of four years or un- 
til his successor has been elected and qualified. 

An}' vacancy in the office of the utilities com- 
missioner caused by death, resignation, removal, 
failure to qualify, or any incapacity to perform the 
duties of his office, or otherwise, shall be filled by 
appointment by the governor, and the person so 
appointed shall fill the office until the expiration of 
the term of office of the person whose vacancy he 
was appointed to fill, or until the first day of Jan- 
uary following the general election, subject to the 
provisions hereinafter set out. 

Should the vacancy occur as hereinbefore set 

6] 



§ 1112(d) 



CORPORATION COMMISSION 



§ 1112(i> 



out more tlian sixty days prior to a general elec- 
tion, then at the next general election there shall 
be elected a utilities commissioner who shall serve 
for the unexpired term. In the event the vacancy 
should occur less than sixty days prior to a general 
election, the appointee of the governor shall serve 
until the expiration of the term of the person he 
was appointed to succeed. (1933, c. 134, s. 4.) 

§ 1112(d). Salary; oath of office. — The util- 
ities commissioner shall receive an annual sal- 
ary of forty-five hundred ($4500.00) dollars, and 
before entering upon the duties of his office shall 
file with the secretary of state his oath of office to 
support the constitution and laws of the United 
States and the constitution and laws of the state of 
North Carolina, and to well and truly perform the 
duties of his said office as utilities commissioner, 
and that he is not the agent or attorney of any 
utility company or public-service corporation, or 
an employee thereof, and that he has no interest 
in any such company or corporation. (1933, c. 
134, s. 5.) 

§ 1112(e). Express and implied powers. — The 

utilities commissioner shall have, exercise, and per- 
form all the functions, powers, and duties and have 
all the responsibilities conferred by this article, 
and all such other powers and duties as may be 
necessary or incident to the proper discharge of 
the duties of his office. (1933, c. 134, s. 6.) 

§ 1112(f). Existing powers of corporation com- 
mission devolve upon utilities commissioner. — All 

the powers, duties, and functions, rights and re- 
sponsibilities of any statute or law of this state 
heretofore conferred upon or vested in or exercised 
by the corporation commission in this state, or any 
member thereof, are hereby vested in the utilities 
commissioner, and shall from and after the dates 
herein specified be assumed, exercised, and per- 
formed by the utilities commissioner created by 
this article and his successor in office subject to 
the provisions of this article. Wherever and when- 
ever, under any existing law, any report, petition, 
application, memorial, or communication is re- 
quired or permitted to be made or addressed to 
the corporation commission, or any member there- 
of, concerning any of the matters, things, and sub- 
jects over which the said corporation commission 
may have heretofore exercised control, authority, 
or direction, such report, petition, application, or 
communication concerning the same shall be ad- 
dressed to the utilities commissioner, and he shall 
have full power and supervision over the same and 
to act therein or thereon in such manner as was 
heretofore provided for the corporation commis- 
sioners or commission. (1933, c. 134, s. 7.) 

§ 1112(g). Substitution of utilities commissioner 
for old designation. — Chapter twenty-one (21) of 
the Consolidated Statutes of 1919, chapter one 
hundred and forty-nine (149) of the Public Laws 
of 1927, all revenue and machinery acts of this 
state, and any and all acts and laws and clauses 
of laws amendatory thereof and supplemental 
thereto, and all laws and clauses of laws relating 
to the functions, powers, duties, rights, and re- 
sponsibilities of the corporation commission, or 
any member thereof, be and they are hereby 
amended so that all functions, powers, duties, 
rights, and responsibilities prescribed to be done 



and performed by the corporation commission, or 
any member thereof, by any of said acts and laws, 
shall hereafter be done and performed by the util- 
ities commissioner, and wherever in chapter twen- 
ty-one (21) of the Consolidated Statutes of 1919, 
or any act amendatory thereof, reference is made 
to "corporation commissioner," "corporation com- 
mission of the state of North Carolina," "corpora- 
tion commission of North Carolina," "corporation 
commission of this state," "chairman of the cor- 
poration commission," or "securities commis- 
sioner," or other designation, the aforesaid chapter 
and laws amendatory thereof shall be amended by 
striking out the aforesaid "corporation commis- 
sion," "chairman of the corporation commission of 
the state," "securities commissioner," or other des- 
ignation words, and inserting in lieu thereof the 
words "utilities commissioner," and wherever in 
any sentence or clause any pronoun or any other 
word is used referring to the said commissioner, 
corporation commission of North Carolina, or se- 
curities commissioner, appropriate pronoun or ref- 
erence word shall be substituted as the context 
may require to follow and carry out the purposes 
of this section. (1933, c. 134, s. 8.) 

§ H12(h). Pending investigations and hearings 
to be concluded by commissioner. — ■ The utilities 
commissioner shall make all investigations and 
conduct all hearings with respect to the matters, 
things, and controversies which prior to the ratifi- 
cation of this article were under the control and 
required to be made by the corporation commis- 
sion, or any member thereof, as set out in chapter 
twenty-one of the Consolidated Statutes, chapter 
one hundred and forty-nine of the Public Laws 
of 1927, revenue and machinery acts of this state, 
and all other acts, laws, and clauses of laws con- 
ferring the functions, duties, powers, rights, and 
responsibilities upon said corporation commission, 
or any member thereof, and the rulings, findings, 
judgments, and conclusions of said utilities com- 
missioner with respect to such matters and things, 
made in accordance with the provisions of this 
article, shall have the same force and effect anc"" va- 
lidity as the findings and conclusions heretofore 
made or required to be made by the corporation 
commission, or any member thereof, or existent 
under the powers conferred upon said corporation 
commission or any member thereof prior to the 
ratification of this article, and for this purpose and 
to this end the said utilities commissioner and the 
associate commissioners hereinafter provided for 
shall be and they are hereby constituted a court 
of record, known as the "utilities commission" of 
the state of North Carolina, and shall adopt a 
seal and have all the powers and jurisdiction of a 
court of general jurisdiction as to all the subjects 
embraced in this article; and the commissioners 
and clerks thereto shall have full power to admin- 
ister oaths, hear and take evidence, and said com- 
mission or commissioners shall render their de- 
cisions upon questions of law and of fact as other 
courts of similar jurisdiction. (1933, c. 134, s. 9.) 

§ 1112(i). Commissioner to call in associates to 
determine questions of facts where amount in- 
volved exceeds $3,000.00. — Whenever in the per- 
formance of the duties herein prescribed any mate- 
rial issue of fact shall arise in any subject matter 
or controversy pending before the utilities commis- 



[37] 



1112(j) 



CORPORATION COMMISSION 



§ iiia(o) 



sion, wherein the amount involved shall be three 
thousand ($3,000.00) dollars or more, or, in the 
opinion of the utilities commissioner, the interest 
of the public is concerned, the said commissioner 
shall, upon request of any party to the petition or 
proceeding, or upon his own motion, if he deem it 
advisable, and to the public interest, notify the 
associate commissioners hereinafter provided for, 
to sit with him for the purpose of hearing and de- 
termining such matters or issues of fact. The said 
associate commissioners shall be given ten days 
notice by the utilities commissioner of the time 
and place of such hearing, and a similar notice 
shall likewise be given to all parties interested in 
such proceeding or hearing. In all matters, con- 
troversies, or proceedings brought before said util- 
ities commissioner wherein the amount involved is 
less than the sum of $3,000.00, and in the opinion 
of the commissioner the public interest is not con- 
cerned, the said utilities commissioner sitting alone 
shall hear the matter and proceed to judgment 
thereon, subject to the right of appeal to the supe- 
rior court as now provided by law. (1933, c. 134, 
s. 10.) 

§ 1112(j). Governor to appoint two associate 
commissioners. — As soon as practicable after the 
ratification of this article and before the same goes 
into effect, the governor, with advice and consent 
of the senate, shall appoint two associate commis- 
sioners who shall be residents of this state and 
otherwise qualified, one of whom shall hold office 
until the first day of January, 1935, or until his 
successor shall have been appointed and qualified, 
and one shall hold office until the first day of Jan- 
uary, 1937, or until his successor shall have been 
appointed and qualified, who shall, when notified 
and called upon by said utilities commissioner, sit 
with him for the purpose of hearing and deter- 
mining all controverted matters or issues of fact 
as hereinabove provided. At the expiration of 
each of the above named terms and quadrennially 
thereafter there shall be appointed in the same 
manner one associate commissioner who shall 
hold office for the term of four years. 

The said associate commissioners shall receive 
as compensation for their services rendered here- 
under the sum of twenty-five ($35.00) dollars per 
day and actual expenses while engaged in said 
hearings: Provided the total amount expended 
for such per diem for said associate commissioners 
shall not exceed the sum of eighteen hundred 
($1800.00) dollars per year. In case of a vacancy 
in the office of commissioner from any causes, the 
unexpired term of such commissioner shall be filled 
by appointment of the governor: Provided said 
associate commissioners shall enter upon the du- 
ties of their office January 1. 1934. (1933, c. 134, 
s. 11.) 

§ 1112(k). Judgments of commission. — The said 
utilities commissioner, in matters solely within his 
jurisdiction, and the said commissioner, together 
with the associate commissioners, when called up- 
on as hereinabove provided, shall hear and deter- 
mine such matter, thing, or controversy in dis- 
pute, pass upon and determine the issues of fact 
raised thereon, and the questions of law involved 
therein, and make and enter their findings and 
conclusions thereon as the judgment of the said 
utilities commissioner of North Carolina. From 



the decision of said utilities commissioner, or the 
said utilities commission, any party to said pro- 
ceeding may appeal to the superior court at term 
as designated in and under the rules of procedure 
required by section (s) 1097, 1098, 1099, 1100, 1101, 
1102, consolidated statutes, said appeal to be pros- 
ecuted and the said matter and controversy there 
to be heard and disposed of as is now provided by 
law, and upon such appeal being taken, it shall be 
the duty of the utilities commission to certify its 
decision and rulings to the said superior court as 
now provided by law. (1933, c. 134, s. 13.) 

§ 1112(1). Public record of proceedings. — The 

utilities commissioner shall keep in his office at 
all times a record of his official acts, rulings, and 
transactions, which shall be public records of the 
state of North Carolina, and all rulings and deter- 
minations of said commission upon matters and 
things authorized to be passed upon by this arti- 
cle, and shall have and appoint a chief clerk, who 
shall be experienced in railroad and other public 
utilities statistics, transportation and public-serv- 
ice charges, and whose term of office shall be for 
a period of two years, and he shall file with the 
secretary of state the oath of office similar to that 
prescribed for the utilities commissioner. The 
utilities commissioner shall have power to remove 
such clerk for cause at any time. (1933, c. 134, 
s. 13.) 

§ ll]2(m). Clerical assistance. — The utilities 
commissioner shall be allowed such stenographic 
and other clerical assistance as he may require 
for the performance of the duties and functions of 
his said office, to be established and fixed by such 
department, bureau, or other state agency as may 
be charged by law with the duty of determining 
the extent of such assistance in said departments, 
all such stenographers, clerks, and assistants and 
special investigators so provided for to be ap- 
pointed by the utilities commissioner and subject 
to removal or discharge by him. The salaries 
and compensation of such clerical assistants, spe- 
cial investigators, or other office force as may be 
allowed in the office of the utilities commission 
shall be fixed in the manner as now provided by 
law for fixing and regulating the salaries and com- 
pensation by other state departments. (1933, c. 
134, s. 14.) 

§ 1112(n). Seal of office; certificate. — In all cases 
where the seal is required on any document, the 
seal adopted as herein prescribed by the utilities 
commissioner shall be sufficient, and whenever 
any record, paper, or document is required to be 
certified or evidenced by the certificate of the 
utilities commissioner or his chief clerk or wherever 
any act or thing is required or permitted to be 
evidenced by such certificate, the certificate shall 
be made by the utilities commissioner, and shall 
have the valid force and effect now given by law 
to any such certificate which may have heretofore 
been required to be made by the corporation com- 
mission. (1933, c. 134, s. 15.) 

§ 1112(o). Comm.issioner to keep himself in- 
formed as to utilities. — The said utilities commis- 
sioner shall at all times be required to keep him- 
self-informed as to the public-service corporations 
hereinbefore specified and enumerated, their rates 
and charges for service, and the service supplied 



[ 38 



§ 1112(p) 



CORPORATION COMMISSION 



§ 1112(5) 



to the citizens of the state and purposes therefor; 
and he shall at all times be empowered and re- 
quired to inquire into such service and rates 
charged therefor, and to fix and determine as here- 
in provided the reasonableness thereof, and upon 
petition or otherwise to make full inquiry into 
such rates and charges in behalf of the citizens of 
the state, and compel and require compliance with 
the regulations and charges, and final determina- 
tion fixed therefor under the provisions of this 
article, and no corporation, association, partner- 
ship, or individual doing business in the state of 
North Carolina as a public-service corporation, or 
any corporation herein designated, shall be allowed 
to increase its rate and charge for service or 
change its classification in any manner whatsoever 
except upon petition duly filed with the utilites 
commission and inquiry held thereon and final de- 
termination of the reasonableness and necessity 
of any such increase change in classification or 
service: Provided, however, that nothing herein 
shall be construed to prevent any public-service 
corporation from reducing its rates either directly 
or by change in classification. (1933, c. 134, s. 
16.) 

§ 1112(p) Surrender of present quarters to com- 
missioner. — The utilities commissioner shall oc- 
cupy the offices now occupied by the corporation 
commission and the securities commissioner, or 
so much thereof as shall be necessary for the per- 
formance of the functions and duties herein pre- 
scribed, and such offices shall be turned over to 
the said utilities commission. Upon the induction 
into office of the utilities commissioner, the corpo- 
ration commission shall turn over and deliver to 
him all books, records, papers, and documents and 
he shall be responsible for the safe keeping there- 
of. (1933, c. 134, s. 17.) 

§ 1112(q). Continuance of present rate inquiry 
by corporation commission. — ■ The corporation 
commission shall proceed as promptly as possible 
to investigate, determine and fix fair and equitable 
rates on telephone, telegraph and other public util- 
ity service in line with present economic condi- 
tions. (1933, c. 134, s. 18.) 

Art. 9. Public Utilities Act of 1933 

§ 1112(1). Definitions. — (a) The term "corpora- 
tion," when used in this article, includes a private 
corporation, an association, a joint stock associa- 
tion or a business trust. 

(b) The term "person," when used in this ar- 
ticle, includes a natural person, a partnership or 
two or more persons having a joint or common 
interest, and a corporation as hereinbefore defined. 

(c) The term "municipality," when used in this 
article, includes a city, a county, a village, a town, 
and any other public corporation existing, created 
or organized as a governmental unit under the 
constitution or laws of the State. 

(d) The term "commission" shall mean the 
corporation commission. 

(e) The term "public utility," when used in this 
article, includes persons and corporations, or their 
lessees, trustees and receivers now or hereafter 
owning or operating in this state equipment or 
facilities for: 

(1) Producing, generating, transmitting, deliv- 
ering or furnishing gas, electricity, steam or any 

[3 



agency for the production of light, heat or power 
to or for the public for compensation; 

(2) Diverting, developing, pumping, impound- 
ing, distributing or furnishing water to or for the 
public for compensation; 

(3) Transporting persons or property by street, 
suburljan or interurban railways for the public for 
compensation; 

(4) Transporting persons or property by motor 
vehicles for the public for compensation, but not 
including taxicab, operating on call, or truck trans- 
fer service in cities or towns; 

(5) Transporting or conveying gas, crude oil 
or other fluid substance by pipe line for the public 
for compensation; 

(G) Conveying or transmitting messag:es or 
communications by telephone or telegraph, where 
such service is offered tO' the public for compen- 
sation; 

(7) The term "public utility" shall for rate mak- 
ing purposes only include any person producing, 
generating or furnishing any of the foregoing serv- 
ices to another person for distribution to or for the 
public for compensation. 

The term "public utility" shall not include any 
person not otherwise a public utility, who furnishes 
the services or commodity only to himself, his em- 
ployees or tenants when such service or commod- 
ity is not resold to or used by others. The busi- 
ness of any public utility other than of the charac- 
ter denned in subdivisions 1 to 7, inclusive, of 
subdivision (e) of this section is not subject to the 
provisions of this act. 

(f) The term "rate," when used in this article, 
means and includes every compensation, charge, 
fare, toll, rental and classification, or any of them, 
demanded, observed, charged or collected by any 
public utility, for any service, product or commod- 
ity offered by it to the public, and any rules, regula- 
tions, practices or contracts affecting any such 
compensation, charge, fare, toll, rental or classifi- 
cation. (1933, c. 307, s. 1.) 

§ 1112(2). Rates must be just and reasonable. — 

Ever}^ rate made, demanded or received by any 
public utility, or by anjr two or more public utili- 
ties jointly, shall be just and reasonable. (1933, 
c. 307, s. 2.) 

§ 1112(3). Service. — ■ Every public utility shall 
furnish adequate, efficient and reasonable service. 
(1933, c. 307, s. 3.) 

§ 1112(4). To file rate schedules with commis- 
sion. — Under such rules and regulations as the 
commission may prescribe, every public utility 
shall file with the commission, within such time 
and in such form as the commission may designate, 
schedules showing all rates established by it and 
collected or enforced, or to be collected or en- 
forced within the jurisdiction of the commission. 
The utility shall keep copies of such schedules open 
to public inspection under such rules and regula- 
tions as the commission may prescribe. (1933, c. 
307, s. 4.) 

§ 1112(5). Rates higher than schedule prohibited. 

— No public utility shall directly or indirectly, by 
any device whatsoever, or in any wise, charge, de- 
mand, collect or receive from any person a greater 
or less compensation for any service rendered or 
to be rendered by such public utility than that 

9] 



§ 1112(6) 



CORPORATION COMMISSION 



§ 1112(10) 



prescribed in the schedules of such public utility 
applicable thereto then filed in the manner pro- 
vided in this act, nor shall any person receive or 
accept any service from a public utility for a com- 
pensation greater or less than that prescribed in 
such schedules. (1933, c. 307, s. 5.) 

§ 1112(6). Discrimination prohibited. — No pub- 
lic utility shall, as to rates or services, make or 
grant any unreasonable preference or advantage 
to any corporation or person or subject any cor- 
poration or person to any unreasonable prejudice 
or disadvantage. No public utility shall establish 
or maintain any unreasonable difference as to 
rates or services either as between localities or as 
'between classes of service. The commission may 
determine any questions of fact arising under this 
section. (1933, c. 307, e. 6.) 

§ 1112(7). Change of rates. — Unless the com- 
mission otherwise orders, no public utility shall 
make any changes in any rate which has been 
duly established under this article, except after 
thirty days' notice to the commission, which no- 
tice shall plainly state the changes proposed to 
be made in the rates then in force, and the time 
when the changed rates will go into effect. The 
utility shall also give such notice of the proposed 
changes to other interested persons as the com- 
mission in its discretion may direct. All pro- 
posed changes shall be shown by filing new sched- 
ules, or shall be plainly indicated upon schedules 
filed and in force at the time and kept open to 
public inspection. The commission, for good 
cause shown, may allow changes in rates, with- 
out requiring the thirty days' notice, under such 
conditions as it may prescribe. All such changes 
shall be immediately indicated upon its schedules 
'by such public utility. 

Whenever there is filed with the commission 
'by any public utility any schedule stating a new 
rate or rates, the commission may, either upon 
complaint or upon its own initiative, upon rea- 
sonable notice, enter upon a hearing concerning 
the lawfulness of such rate or rates; and pending 
such hearing and the decision thereon the com- 
mission, upon filing with such schedule and de- 
livering to the utility affected thereby a statement 
in writing of its reasons therefor, may, at any 
time before they become effective, suspend the 
operation of such rate or rates, but not for a 
longer period than ninety (90) days beyond the 
time when such rate or rates would otherwise 
go into effect unless the commission shall find 
that a longer time will be required, in which case 
the commission may extend the period for not to 
exceed six (6) months: Provided, and notwith- 
standing any such order of suspension, the pub- 
lic utility may put such suspended rate or rates 
into effect on the date when it or they would 
have become effective, if not so suspended, by 
filing with the commission a bond in a reasonable 
amount approved by the commission, with sure- 
ties approved by the commission, conditioned 
upon the refund, in a manner to be prescribed by 
order of the commission to the persons entitled 
thereto of the amount of the excess, if the rate 
or rates so put into effect are finally determined 
to be excessive; or there may be substituted for 
such bond, other arrangements satisfactory to 

[■ 



the commission for the protection of the parties 
interested. If the public utility fails to make 
refund within thirty (30) days after such final 
determination, any person entitled to such refund 
may sue therefor in any court of this state of 
competent jurisdiction and be entitled to re- 
cover, in addition to the amount of the refund 
due, all court costs, but no suit may be main- 
tained for that purpose unless instituted within 
two years after such final determination. Any 
number of persons entitled to such refund may 
join as plaintiffs and recover their several claims 
in a single action; in which action the court shall 
render a judgment severally for each plaintiff as 
his interest may appear. During any such period 
of suspension the commission may, in its discre- 
tion, require that the public utility involved shall 
furnish to its consumers or patrons a certificate 
or other evidence of payments made by them. 
(1933, c. 307, s. 7.) 

§ 1112(8). Changing unreasonable rates after 
hearing. — Whenever the commission, after a hear- 
ing had after reasonable notice upon its own mo- 
tion or upon complaint, finds that the existing 
rates in effect and collected by any public utility 
for any service, product, or commodity, are un- 
just, insufficient or discriminatory, or in any wise 
in violation of any provision of law, the commis- 
sion shall determine the just, reasonable and suffi- 
cient rates to be thereafter observed and in force, 
and shall fix the same by order as hereinafter pro- 
vided. (1933, c. 307, s. 8.) 

§ 1112(9). Compelling telephone and telegraph 
companies to form continuous lines to certain 
points. — The commission may upon complaint, in 
writing, by any person, or on its own initiative 
after a hearing on reasonable notice, by order re- 
quire any two or more telephone or telegraph 
companies whose lines or wires form a continuous 
line of communication, or could be made to do so 
by the construction and maintenance of suitable 
connections or the joint use of equipment, or the 
transfer of messages at common points, between 
different localities which can not be communi- 
cated with or reached by the lines of either com- 
pany alone, where such service is not already es- 
tablished or provided, to establish and maintain 
through lines within the state between two or 
more such localities. The rate for such service 
shall be just and reasonable and the commission 
shall have power to establish the same, and de- 
clare the portion thereof to which each company 
affected thereby is entitled and the manner in 
which the same must be secured and paid. All 
necessary construction, maintenance and equip- 
ment in order to establish such service shall be 
constructed and maintained in such manner and 
under such rules, with such division of expense 
and labor as may be required by the commis- 
sion. (1933, c. 307, s. 9.) 

§ 1112(10). Compelling efficient service after 
hearing. — Whenever the commission, after a 
hearing after reasonable notice had upon its own 
motion or upon complaint, finds that the service 
of any public utility is unreasonable, unsafe, in- 
adequate, insufficient or unreasonably discrimina- 
tory, the commission shall determine the reason- 
able, safe, adequate, sufficient service to be ob- 
K)] 



§ 1112(11) 



CORPORATION COMMISSION 



§ 1112(19) 



served, furnished, enforced or employed and 
shall fix the same by its order, rule or regulation. 
(1933, c. 307, s. 10.) 

§ 1112(11). Fixing standards, classifications, 
etc; testing service. — Tlie commission may, after 
hearing upon reasonable notice had upon its own 
motion or upon complaint, ascertain and fix just 
and reasonable standards, classifications, regula- 
tions, practices or service to be furnished, im- 
posed, observed and followed by any or all pub- 
lic utilities; ascertain and fix adequate and rea- 
sonable standards for the measurement of quantity, 
quality, pressure, initial voltage or other condition 
pertaining to the supply of the product, com- 
modity or service furnished or rendered by any 
and all public utilities; prescribe reasonable regu- 
lations for the examination and testing of such 
product, commodity or service and for the measure- 
ment thereof; establish or approve reasonable 
rules, regulations, specifications and standards to 
secure the accuracy of all meters and appliances 
for measurement; and provide for the examination 
and testing of any and all appliances used for the 
measurement of any product, commodity or serv- 
ice of any public utility. (1933, c. 307, s. 11.) 

§ 1112(12). Valuing and revaluing utility prop- 
erty. — The commission may, on hearing after rea- 
sonable notice, ascertain and fix the value of the 
whole or any part of the property of any public 
utility insofar as the same is material to the ex- 
ercise of the jurisdiction of the commission, and 
may make revaluations from time to time and 
ascertain the value of all new construction, ex- 
tension and additions to the property of every 
public utility. (1933, c. 307, s. 12.) 

§ 1112(13). Establishment of accounting system. 
— The commission may establish a system of ac- 
counts to be kept by the public utilities, subject to 
its jurisdiction, or may classify said public utilities 
and establish a system of accounts for each class, 
and prescribe the manner in which such accounts 
shall be kept. (1933, c. 307, s. 13.) 

§ 1112(14). Visitorial and inspection powers of 
commissiorL — The commissioners and the officers 
and employees of the commission may during all 
reasonable hours enter upon any premises occupied 
by any public utility, for the purpose of making 
the examinations and tests and exercising any 
power provided for in this article, and may set 
up and use on such premises any apparatus and 
appliances necessary therefor. Such public utility 
shall have the right to be represented at the mak- 
ing of such examination, tests and inspections. 
(1933, c. 307, s. 14.) 

§ 1112(15). Armual reports. — The commission 
may require any public utility to file annual re- 
ports in such form and of such content as the com- 
mission may require and special reports concern- 
ing any matter about which the commission is 
authorized to inquire or to keep itself informed, 
or which it is required to enforce. All reports 
shall be under oath when required by the com- 
mission. (1933, c. 307, s. 15.) 

§ 1112(16). Investigation into management of 
utilities. — The commission may, on its own mo- 
tion and whenever it may be necessary in the per- 
formance of its duties, investigate and examine 

[4 



the condition and management of public utilities 
or any particular utility. In conducting such in- 
vestigations the commission may proceed either 
with or without a hearing as it may deem best, 
l)ut it shall make no order without affording the 
parties affected thereby a hearing. (1933, c. 307, 
s. 10.) 

§ 1112(17). Permission of commission to pledge 
assets. — No public utility shall pledge its faith, 
credit, moneys or property for the benefit of any 
holder of its preferred or common stocks or bonds, 
nor for any other business interest with which it 
may be affiliated through agents or holding com- 
panies or otherwise by the authority of the ac- 
tion of its stockholders, directors, or contract or 
other agents, the compliance or result of which 
would in any manner deplete, reduce, conceal, 
abstract or dissipate the earnings or assets there- 
of, decrease or increase its liabilities or assets, 
without first making application to the commis- 
sion and by order obtain its permission so to do; 
nor shall any such utility pay any fees, com- 
missions or compensation of any description 
whatsoever, to any holding, managing, operating, 
constructing, engineering, financing, or purchas- 
ing company or agency including subsidiary or 
affiliated companies, for services rendered or to 
be rendered without first filing copies of all pro- 
posed agreements and contracts with the com- 
mission and obtaining its approval. (1933, c. 
307, s. 17.) 

§ 1112(18). Assumption of certain liabilities and 
obligations to be appr'oved by commission. — No 

utility shall issue any securities, or assume any 
liability or obligation as lessor, lessee, guarantor, 
indorser, surety, or otherwise, in respect to the 
securities of any other person unless and until, and 
then only to the extent that, upon application by 
the utility, and after investigation by the commis- 
sion of the purposes and uses of the proposed is- 
sue, and the proceeds thereof, or of the proposed 
assumption of obligation or liability in respect of 
the securities of any other person, the commis- 
sion by order authorizes such issue or assumption. 
The commission shall make such order only if it 
finds that such issue or assumption (a) is for some 
lawful object within the corporate purposes of the 
utility, (b) is compatible with the public interest, 
(c) is necessary or appropriate for or consistent 
with the proper performance by the utility of its 
service to the public as such utility and will not 
impair its ability to perform that service, and, (d) 
is reasonably necessary and appropriate for such 
purpose. Any such order of the commission shall 
specify the purposes for which any such securities 
or the proceeds thereof may be used by the utility 
making such application. (1933, c. 307, s. 18.) 

§ 1112(19). Commission may approve in whole 
or in part or refuse approval. — The commission, 
by its order, may grant or deny the application 
provided for in the preceding section as made, or 
may grant it in part or deny it in part or may 
grant it with such modification and upon such 
terms and conditions as the commission may deem 
necessary or appropriate in the premises and may, 
from time to time, for good cause shown, make 
such supplemental orders in the premises as it 
may deem necessary or appropriate and maj', by 

1] 



1113(20) 



CORPORATION COMMISSION 



§ 1112(27) 



any such supplemental order, modify the provi- 
sions of any previous order as to the particular pur- 
poses, uses, and extent to which or the conditions 
under which any securities so theretofore author- 
ized or the proceeds thereof may be applied; sub- 
ject always to the requirements of the foregoing 
section. (1933, c. 307, s. 19.) 

§ 1112(20). Contents of application for permis- 
sion. — Every application for authority for such is- 
sue or assumption shall be made in such form and 
contain such matters as the commission may pre- 
scribe. Every such application and every certifi- 
cate of notification hereinafter provided for, shall 
be made under oath, signed and filed on behalf of 
the utility by its president, a vice-president, audi- 
tor, comptroller, or other executive officer having 
knowledge of the matters therein set forth and 
duly designated for that purpose by the utility. 
(1933, c. 307, s. 20.) 

§ 1112(21). Applications to receive immediate 
attention; continuances. — All applications for the 
issuance of securities or assumption of liability or 
obligation shall be placed at the head of the com- 
mission's docket and disposed of promptly, and 
all such applications shall be disposed of in thirty 
(30) days after the same are filed with the com- 
mission, unless it is necessary for good cause to 
continue the same for a longer period for con- 
sideration. Whenever such application is con- 
tinued beyond thirty (30) days after the time it 
is filed, the order making such continuance must 
state fully the facts necessitating such continu- 
ance. (1933, c. 307, s. 21.) 

§ 1112(22). Notifying commission as to disposi- 
tion of securities. — Whenever any securities set 
forth and described in any such application for 
authority or certificate of notification as pledged 
or held unincumbered in the treasury of the util- 
ity shall, subsequent to the filing of such applica- 
tion or certificate, be sold, pledged, repledged, or 
otherwise disposed of, by the utility, such utility 
shall, within ten days after such sale, pledge, re- 
pledge, or make other disposition of, file with the 
commission a certificate of notification to that 
efifect, setting forth therein all such facts as may 
be required by the commission. (1933, c. 307, s. 
22.) 

§ 1112(23). No guarantee on part of state.— 

Nothing herein shall be construed to imply any 
guarantee or obligation as to such securities on 
the part of the state of North Carolina. (1933, 
c. 307. s. 23.) 

§ 1112(24). Article not applicable to note is- 
sues; renewals likewise excepted. — ^The provisions 
of the foregoing sections shall not apply to notes 
issued by a utility for the proper purposes and 
not in violation of law, payable at a period of not 
more than two (3) years from the date thereof, 
and shall not apply to like notes issued by a util- 
ity payable at a period of not more than two (2) 
years from date thereof, to pay, retire, discharge, 
or refund in whole or in part any such note or 
notes and shall not apply to renewals thereof 
from time to time not exceeding in the aggregate 
six (6) years from the date of the issue of the 
original note or notes so renewed or refunded. 
No such notes payable at a period of not more 



than two (2) years from the date thereof, shall, 
however, in whole or in part, directly or indirectly, 
be paid, retired, discharged or refunded by any 
issue of securities of another kind of any term or 
character or from the proceeds thereof without 
the approval of the commission. (1933, c. 307, s. 
24.) 

§ 1112(25). Not applicable to debentures of 
court receivers; notice to commission. — Nothing 
contained in this article shall limit the power of 
any court having jurisdiction to authorize or cause 
receiver's certificate or debentures to be issued 
according to the rules and practice obtaining in 
receivership proceedings in courts of equity. 
Within ten (10) days after the making of any 
such notes, so payable at periods of not more than 
two (2) years from the date thereof, the utility 
issuing the same shall file with the commission a 
certificate of notification, in such form as may 
from time to time be determined and prescribed 
by the commission. (1933, c. 307, s. 25.) 

§ 1112(26). Periodical or' special reports. — The 

commission shall require periodical or special re- 
ports from each utility hereafter issuing any se- 
curity including such notes payable at periods of 
not more than two (2) years from the date there- 
of, which shall show, in such detail as the com- 
mission may require, the disposition made of such 
securities and the application of the proceeds 
thereof. (1933, c. 307, s. 26.) 

§ 1112(27). Failure to obtain approval not to 
invalidate securities or obligations. — (a) Securities 
issued and obligations and liabilities assumed by 
a utility, for which under the provisions of this 
article the authorization of the commission is re- 
quired, shall not be invalidated because issued or 
assumed without such authorization therefor hav- 
ing first been obtained or because issued or as- 
sumed contrary to any term or condition of such 
order of authorization as modified by any order 
supplemental thereto entered prior to such issu- 
ance or assumption, (b) Securities issued or ob- 
ligations or liabilities assumed in accordance with 
all the terms and conditions of the order of au- 
thorization therefor shall not be affected by a 
failure to comply with any provision of this article 
or rule or regulation of the commission relating 
to procedure and other matters preceding the en- 
try of such order of authorization or order sup- 
plemental thereto, (c) A copy of any order made 
and entered by the commission as in this article 
provided (duly certified by the clerk of the com- 
mission) approving the issuance of any securities 
or the assumption of any obligation or liability 
by a utility shall, in and of itself, be sufficient evi- 
dence, for all purposes, of full and complete com- 
pliance by the applicant for such approval with 
all procedural and other matters required preced- 
ent to the entry of such order, (d) Any utility 
which willfully issues any such securities, or as- 
sumes any such obligation or liability, or makes 
any sale or other disposition of securities, or ap- 
plies any securities or the proceeds thereof to 
purposes other than the purposes specified in an 
order of the commission with respect thereto, 
contrary to the provisions of this article, shall be 
liable to a penalty of not more than ten thousand 
dollars, but such utility is only required to specify 



[13] 



§ 1112(28) 



CORPORATIONS 



§ 1125(c) 



in general terms the purpose for which any securi- 
ties are to be issued, or for which any obligation 
or liability is to ibe assumed, and the order of the 
commission with respect thereto shall likewise be 
in general terms. (1933, c. 307, s. 27.) 

§ 1112(28). Commission may act jointly with 
agency of another state where utility oper'ates. — 

If a commission or other agency or agencies is 
empowered by another state to regulate and con- 
trol the amount and character of securities to be 
issued by any pul)lic utility within such other 
state, then the corporation commission of the state 
of North Carolina shall have the power to agree 
with such commission or other agency or agencies 
of such other state on the issue of stocks, bonds, 
notes or other evidences of indebtedness by a 
public utility owning or operating a public utility 
both in such state and in this state, and shall have 
the power to approve such issue jointly with such 
commission or other agency or agencies and to 
issue joint certificate of such approval: Provided, 
however, that no such joint approval shall be re- 
quired in order to express the consent to an ap- 
proval of such issue by the state of North Caro- 
lina if said issue is separately approved by the 
corporation commission of the state of North 
Carolina. (1933, c. 307, s. 38.) 

§ 1112(29). Willful acts of employees deemed 
those of utility. — The willful act of any officer, 
agent, or employee of a utility, acting within the 
scope of his official duties of employment, shall, 
for the purpose of this article be deemed to be 
the willful act of the utility. (1933, c. 307. s. 29.) 

§ 1112(30). Actions to recover penalties. — Ac- 
tions to recover penalties under this article shall 
be brought in the name of the state of North 
Carolina, in the county in which the offense was 
committed. Whenever any utility is subject to a 
penalty under this article, the commission shall 
certify the facts to the attorney-general, who shall 
institute and prosecute an action for the recovery 
of such penalty: Provided, the commission may 
compromise such action and dismiss the same on 
such terms as the court will approve. (1933, c. 
307. s. 30.) 

§ 1112(31). Penalties to school fund. — All 

penalties recovered by the state in such action 
shall be paid into the state treasury to the credit 
of the school fund. (1933, c. 307, s. 31.) 



§ 1112(32). Abandonment and reduction of 
service. — Upon finding that public convenience 
and necessity are no longer served, or that there 
is no reasonable probability of a utility realizing 
sufficient revenue from the service to meet its ex- 
penses, the commission shall have power, after 
petition, notice and hearing, to authorize by order 
any utility to abandon or reduce its service or 
facilities. (1933, c. 307, s. 32.) 

§ 1112(33). Water gauging stations.— The com- 
mission may require the location, establishment, 
maintenance and operation of water gauging sta- 
tions, and the commission and the North Caro- 
lina department of conservation and development 
may co-operate with each other as to such loca- 
tions, construction and reports and upon the re- 
sults of operation. (1933, c. 307, s. 33.) 



§ 1112(34). Reports from municipalities operat- 
ing own utilities. — Every municipality engaged 
in operating any works or systems for the manu- 
facture and supplying of gas or electricity, or 
purchasing same for distribution and resale, or 
operating- telephone exchanges, shall make an 
annual report to the commission, verified by the 
oath of the general manager or superintendent 
thereof, on the same blanks as now provided for 
reports of privately owned utilities, giving the 
same information as required of such utilities. 
(1933, c, 307, s. 34.) 

§ 1112(35). Refusal to permit commission to 
inspect records made misdemeanor. — Any public 
utility, its officers or agents in charge thereof, 
that fails or refuses upon the written demand of 
the commission, or a majority of said commission, 
and under the seal of the commission, to permit 
the commission, its authorized representatives or 
employees to examine and inspect its books, rec- 
ords, accounts and documents, or its plant, prop- 
erty, or facilities, as provided for by law, shall be 
guilty of a misdemeanor. Each day of such fail- 
ure or refusal shall constitute a separate ofifense 
and each such offense shall be punishable by a 
fine of not less than five hundred and not more 
than five thousand dollars. (1933, c. 307, s. 35.) 

§ 1112(36). Willful disobedience to orders of 
commission incurs forfeiture. — Every public util- 
ity and the officers, agents and employees there- 
of shall obey, observe and comply with every or- 
der made by the commission under authority of 
this article so long as the same shall be and re- 
main in force. Any such person or corporation, 
or any officer, agent or employee thereof, who 
knowingly fails or neglects to obey or comply 
with such order, or any provision of this article, 
shall forfeit to the state of North Carolina not to 
exceed the sum of one thousand dollars for each 
offense. Every distinct violation of any such or- 
der or of this article shall be a separate and dis- 
tinct offense, and in case of a continuing violation 
each day shall be deemed a separate and distinct 
offense. 

No present provision of law shall be deemed to 
be repealed by this article except such as are di- 
rectly in conflict therewith. (1933, c. 307, s. 36.) 



CHAPTER 22 

CORPORATIONS 
Art. 2. Formation 

§ 1125(a). North Carolina state thrift society 
incorporated. — In order the better to provide for 
the education of the school children of the state 
in the principles and practice of thirft and saving 
and in order to aid them in making better provi- 
sion for their future advanced education, there is 
hereby created under the patronage and control 
of the state a non-stock corporation to be known 
as the North Carolina state thrift society. (1933, 
c. 385, s. 1.) 

§ 1125(b). Charter perpetual. — The charter of 
the society shall be perpetual. (1933, c. 385, s. 3.) 

§ 1125(c). Membership and directors. — The 

membership of the society shall be identical with 

[43] 



§ 1125(d) 



CORPORATIONS 



§ 1140 



the membership of the governing board, which 
shall consist of sixteen directors. The state treas- 
urer, the superintendent of public instruction, the 
president of the North Carolina bankers associa- 
tion and the president of the University of North 
Carolina shall throughout their terms of office be 
ex officio members of the board. The remaining 
twelve members of the board shall be appointed 
by the governor for successive terms of four 
years each, and shall be equally divided between 
the business and financial and the educational in- 
terests of the state, six members to each of the 
named groups: Provided that at least four of 
those representing business must be experienced 
bankers. (1933, c. 385, s. 3.) 

§ 1125(d). Vacancies. — In the event of a 
vacancy occurring before the expiration of the 
terms of office of any director, the board by a 
majority vote of its full membership, including ex 
officio members, shall have power to elect per- 
sons to fill out the unexpired terms. (1933, c. 
385, s. 4.) 

§ 1125(e). Officers of society. — The state treas- 
urer shall be the treasurer and depository of the 
funds of the societ3r. The other officers of the 
society shall be elected by the board, and shall 
include a president, cashier, secretary and auditor. 
(1933, c. 385, s. 5.) 

§ 1125(f). Powers of purchase and sale. — The 

society shall have power and authority to pur- 
chase, lease and otherwise acquire such real and 
personal property as may be deemed useful to the 
prosecution of the objects for which it is created. 
It may sell and dispose of the same and may 
hold or may sell and convey such property also 
as may be taken in whole or partial satisfaction 
of any debt due to it. It may also receive gifts 
of money and property to be applied to its cor- 
porate purposes. (1933, c. 385, s. 6.) 

§ 1125(g). Deposits of school children. — The 

society may receive deposits of the funds of 
children and others attending any of the public 
schools or colleges of North Carolina, as provided 
in section 1125(m), and subject to repayment 
on terms established by the board: Provided that 
no individual account may exceed $1,000. (1933, 
c. 385, s, 7.) 

§ 1125(h). Depositories. — The funds in the 
treasurer's hands may be deposited by him to his 
credit as state treasurer and treasurer of the 
society in banks upon like terms and secured in 
like manner as other state deposits. The interest 
accruing and paid on such deposits shall be added 
to the funds of the society. (1933, c. 385, s. 8.) 

§ 1125(1). Exemption from taxation. — Neither 
deposits in the societj' nor its property invest- 
ments and assets shall at any time be subject to 
taxation by the state of North Carolina or any of 
its sub-divisions, except that gift, inheritance or 
estate taxes may be levied on the transfer of pri- 
vate deposits in the society. (1933, c. 385, s. 9.) 

§ 1125(j). Loan of funds to college students. — 

The society, for the purpose of aiding deserving 
students to obtain advanced education, shall have 
power to loan its funds, and those which it has 
received on deposit, for not more than one year 

[44] 



at a time to students, residents of North Carolina, 
registered in any institution of higher learning in 
the state, on the note of the borrower to the 
society, with two co-makers as sureties who are 
certified by a clerk of the superior court and reg- 
ister of deeds, to be each worth the amount of the 
note above homestead exemption and encum- 
brances, and whose signatures are acknowledged 
before a notary public. The making of student 
loans shall 'be subject to such additional rules as 
the board may prescribe. (1933, c. 385, s. 10.) 

§ 1125(k). Investments. — The funds of the 
society where not required for student loans may 
at the discretion of the board be invested in obli- 
gations of the United States Government or of 
the state of North Carolina. (1933. c. 385, s. 11.) 

§ 1125(1). No expense to state. — Provided that 
no expense of any nature nor liability of any kind 
shall rest on the state of North Carolina by rea- 
son of this article. (1933, c. 385, s. 12.) 

§ 1125(m). Thrift instruction provided by su- 
perintendent of public instruction in schools. — 

Within 150 days from the approval of this section 
the state superintendent of public instruction shall 
provide in the public schools of the state for in- 
struction in thrift and the principles, practice and 
advantage of saving. 

In connection with the instruction so provided 
arrangements shall be made at each school for 
the receiving of students' savings deposits into- 
the North Carolina state thrift society, subject to 
its rules and on the terms provided therein. 

The administration of the system in each school 
shall be in charge of one or more of the teachers 
in said school to be designated by the principal. 

The savings deposits shall be transmitted to the 
state treasurer from time to time in accordance 
with rules to be established by the governing 
board of the North Carolina state thrift society 
and shall be held for the purposes declared in the 
charter of the said society. (1933, c. 481, ss. 1-4.) 

Art. 3. Powers and Restrictions 
§ 1137. Resident process agent. 

A Federal Land Bank created by act of Congress and 
deriving its right to own property and to do business in 
this State solely through a Federal statute is not a foreign 
corporation exercising such functions under express or im- 
plied authority of this State, and this section is not appli- 
cable to such corporation, and our courts acquire no juris- 
diction over it by such service. Leggett v. Federal Land 
Bank, 204 N. C. 151, 167 S. E. 557. 

§ 1138. Corporate conveyances; when void as- 
to torts. 

I. IN GENERAU 
Judgment for Tort Committed before Transfer. — Under 
this section as construed with §§ 3309, 3311, an absolute sale 
by a corporation of its personal property, accompanied by 
delivery to the purchaser, is not void as to a judgment 
creditor of the corporation on a judgment obtained against 
the corporation for a tort committed before the transfer. 
Carolina Coach Co. v. Begnell, 203 N. C. 656, 166 S. E. 
903. 

§ 1140. Mortgaged property subject to execu- 
tion for labor, clerical services, and torts. 
I. IN GENERAL. 

Judgments Not Superior Except as Provided in This Sec- 
tion. — Judgments against a corporation for its obligations 
arising on a contract are not superior to the lien of a prior 
registered deed of trust given to secure bondholders wheni 
the judgments were not in actions to recover for labor and'. 



§ 1148(a) 



CORPORATIONS 



§ 1193 



clerical services performed or to recover damages for a 
tort or for injuries to property within the meaning of this 
section. Amoskeag Mfg. Co. v. Yadkin Cotton Mills, 200 N. 
C. 10, 156 S. E. 101. 

Art. 4. Directors and Officers 

§ 1148(a). Forfeiture of corporate charter and 
organization of new corporation. — - Wherever a 
corporation created under the laws of the state of 
North Carolina has, on account of failure to make 
reports of the different state authorities, for such 
a length of time as to lose its charter and where 
thereafter, under the laws of the state of North 
Carolina, a new charter is issued, in the same 
name as the original corporation, and on behalf 
of the same corporation, such new corporation 
shall succeed to the same properties, to the same 
rights as the original corporation before losing its 
charter on account of neglect hereinbefore men- 
tioned. 

Whenever such new corporation shall have 
been created, under the laws of this state, all the 
title, rights and emoluments to the property held 
by the original corporation shall inure to the 
benefit of the newer corporation and the new cor- 
poration shall issue its stock to the stockholders 
in the defunct cprporation, in the same number 
and with the same par value as held by the stock- 
holders of the defunct corporation. 

Such new corporation shall have the rights and 
privileges of maintaining any action or cause of 
action which the defunct corporation might main- 
tain, bring or defend and to all intents and pur- 
poses the new corporation shall take the place of 
the defunct corporation to the same intent and 
purpose; as if the defunct corporation had never 
expired by reason of its failure to make the re- 
ports hereinbefore referred to. (1933, c. 124.) 

Art. 5. Capital Stock 
§ 1161. Decrease of capital stock. 

Repurchase of Stock. — This section was held inapplicable 
to suit by receiver against directors for repurchase of stock 
by corporation in Thompson v. Shepherd, 203 N. C. 310, 165 
S. E. 796. 

Art. 6. Meetings, Elections and Dividends 

§ 1179. Dividends from profits only; directors' 
liability for impairing capital. — No corporation 
may declare and pay dividends except from the 
surplus or net profits arising from its business, or 
when its debts, whether due or not, exceed two- 
thirds of its assets, nor may it reduce, divide, 
withdraw, or in any way pay to any stockholder 
any part of its capital stock except according to 
this chapter: Provided, a public service corpora- 
tion may declare and pay such dividends from the 
surplus or net profits arising from its business ex- 
cept when its debts, whether due or not, exceed 
three-fourths of its assets: Provided, further, that 
any corporation, other than a public service cor- 
poration, which is a member of a partnership may 
declare and pay dividends from the surplus or net 
profits arising from its business when the sum of 
the corporation's separate debts, whether due or 
not, and that part of the partnership debts which 
is the same proportion of all the partnership debts, 
whether due or not, as the corporation's interest 
in the partnership assets is of all such assets, does 
not exceed two-thirds of the corporation's assets, 
and in such calculation the amount of its interest 



in the partnership assets shall be considered as- 
sets of the corporation. In case of a violation 
of any provision of this section, the directors 
under whose administration the same occurs are 
jointly and severally liable, at any time within 
six years a/fter paying such dividend, to the cor- 
poration and its creditors, in the event of its dis- 
solution or insolvency, to the full amount of the 
dividend paid, or capital stock reduced, divided, 
withdrawn, or paid out, with interest on the same 
from the time such liability accrued. Any di- 
rector who was absent when the violation oc- 
curred, or who dissented from the act or resolu- 
tion by which it was effected, may exonerate him- 
self from such liability by causing his dissent to 
be entered at large on the minutes of the direct- 
ors at the time the action was taken or imme- 
diately after he has had notice of it. (Rev., s. 
1193; Code, s. 681; 1901, c. 2, ss. 33, 53; 1937, c. 
131; 1933, c. 354, s. 1.) 

Editor's Note. — 

The second proviso, relating to dividends by corporation 
holding membership in partnership, was inserted by Pub- 
lic Laws 1933, c. 354. 

Repurchase of Stock.— This section was held inapplicable 
to suit by receiver against directors for repurchase of stock 
by corporation in Thompson v. Shepherd, 203 N. C. 310, 165 
S. E. 796. 

§ 1179(a). No personal liability on corporate 
manager of partnership. — Any corporation created 
under this chapter which is a member of a part- 
nership may have its interests in such partner- 
ship managed, and may be engaged in or have 
charge of the management and affairs of such 
partnership, by and through any of its officers, di- 
rectors, stockholders, agents and servants, and no 
such person acting as manager of the interests of 
any corporation in such partnership, or engaged 
in or having charge of the management and af- 
fairs of such partnership, whether as executive, 
member of an executive committee or board, em- 
ployee or otherwise, shall be personally subject 
to any liability for the debts of such partnership 
of such corporation. (1933, c. 354, s. 2.) 

Art. 7. Foreign Corporations 

§ 1181. Requisites for permission to do busi- 
ness. 

In General. — Although this section excludes insurance com- 
panies from its operation, the statutes will be construed in 
relation to their subject-matter. The exception in this sec- 
tion is because insurance companies are exclusively dealt 
with elsewhere. Occidental Life Ins. Co, v. Lawrence, 204 
N. C. 707, 169 S. E. 636. 

Right to Sue and Be Sued. — Where a foreign corporation 
has submitted to domestication in this State by filing its 
certificate of incorporation with the Secretary of State and 
by otherwise complying with the provisions of this section, 
it thereby acquires the right to sue and be sued in the 
courts of this State as a domestic corporation, and where 
it brings action on a note in the county of its designated 
residence the defendants are not entitled to removal to the 
county of their residence as a matter of right. Smith- 
Dotiglass Co. v. Honeycutt, 204 N. C. 219, 167 S. E. 810. 

Art. 8. Dissolution 

§ 1193. Corporate existence continues three 

years. 

Application. — 

Under this section, a corporation continues for three years 
to be a body corporate for the purpose of disposing of its 
property and dividing its assets, and the section is appli- 
cable to any corporation. Burnet v. Lexington Ice, etc., Co., 
62 F. (2d) 906, 909. 



[45] 



§ 1208 



CORPORATIONS 



§ 1224(i) 



Art. 10. Receivers 
§ 1208. Appointment and removal. 

As to statute relating to receivers applicable to insolvent 
banks see § 218(e) and annotations thereunder. 

§ 1209. Powers and bond. *• 

Sufficiency to Pass Title. — Where, under a court order, the 
receiver of an insolvent has conveyed lands according to 
the terras of a deed of trust by which the bank held the land, 
applying this and the following section the deed was suffi- 
cient in law to pass title. Wachovia Bank, etc., Co. v. 
Hudson, 200 N. C. 688, 158 S. E. 244. 

§ 1210. Title and inventory. 

Cross Reference. — As to a conveyance by a receiver of 
an insolvent bank, according to a deed of trust, see § 1209 and 
the note thereto. 

Applied in Teague v. Teague Furniture Co., 201 N. C. 
803, 161 S. E. 530. 

Art. 11. Taxes and Fees 

§ 1220. Corporate property in receiver's hands 
liable for taxes. 

Attachment and Continuance of Lien. — The lien for taxes 
attaches to the real property ta.xed from the date provided 
in the statute, and the lien continues thereon until the taxes 
are paid, regardless into whose hands the property has 
passed, unless barred by some statute of limitations. Reich- 
land Shale Products Co. v. Southern Steel, etc., Co., 200 N. 
C. 226, 156 S. E. 777. 

Art. 13. Merger 

§ 1224(g). Merger of charitable and other cor- 
porations not under control of state. — Any two or 
more charitable, educational, social, ancestral, 
historical, penal or reformatory corporations not 
under the patronage and control of the state, and 
any two or more corporations without capital stock 
organized for the purpose of aiding in the work of 
any church, religious society or organization, or 
fraternal order, whether organized under special 
act or general laws, may consolidate into a sin- 
gle corporation, which shall be deemed the suc- 
cessor of each and all corporations joining in 
such consolidation, in the following manner: 

(a) When authorized to do so by the con- 
ference, synod, convention or other body own- 
ing and/or controlling such corporation, the trus- 
tees or directors of such corporation by resolution 
adopted by majority vote at a meeting duly called 
and convened in accordance with the present 
charter, by-laws or other regulations for the con- 
duct of such meetings of such corporation, and in 
the absence of such charter provision, by-laws or 
other regulations upon ten days' notice to each 
trustee or director of the time, place and object 
of the meeting, may authorize such corporation 
to make, enter into and execute a consolidation 
agreement with one or more other such corpora- 
tions; that such consolidation agreement shall pre- 
scribe the terms and conditions of consolidation, 
the mode of carrying same into effect, and shall 
set forth in full the certificate of incorporation of 
the consolidated corporation; and the consolida- 
tion agreement so authorized shall be executed in 
the name and behalf of each such corporation en- 
tering into the consolidation by its president or 
vice-president, attested by its secretary or as- 
sistant secretary and its corporate seal thereto af- 
fixed, and the due execution thereof shall be ac- 
knowledged in the manner and before a notary 
public or other officer required by the general laws 

[46 



of North Carolina for the acknowledgment of cor- 
porate deeds; and there shall be attached to such 
agreement of consolidation the written consent of 
a majority of the trustees or directors of each cor- 
poration entering into the consolidation. 

(b) The agreement of consolidation, when au- 
thorized and executed as provided above and hav- 
ing attached thereto the aforesaid written consent, 
shall be filed in the office of the secretary of state. 
When so filed, the separate legal existence of each 
of the corporations joining in the consolidation 
thereupon shall be merged into the consolidated 
corporation, and thereafter there shall be only one 
corporation having as its charter the certificate of 
incorporation fully set forth in the agreement of 
consolidation. 

(c) A copy of said agreement o- consolidation, 
duly certified by the secretary of state under the 
seal of his office, shall be recorded in the office of 
the clerk of the superior court of the county in 
which the principal office of the consolidated cor- 
poration as fixed by its certificate of incorpora- 
tion is located, and a like certified copy of the 
agreement of consolidation shall be recorded in 
the office of the clerk of the superior court of each 
county where any one or more of the corporations 
joining in the consolidation theretofore has had 
its principal office or place of business; and such 
certified copy shall be evidence of the existence 
of the consolidated corporation created by such 
agreement of consolidation and of the observance 
and performance of all antecedent acts and con- 
ditions necessary to the creation thereof. (1933, 
c. 408, s. 1.) 

§ 1224(h). Rights and powers of consolidated 
corporation. — The consolidated corporation shall 
succeed to and be vested with all rights, privileges 
and powers, and all property, real, personal and 
mixed, tangible and intangible, and the title there- 
to, of each and all of the corporations joining in 
the consolidation as fully and effectually as the 
same were theretofore owned and held by each of 
the separate corporations, and the consolidated 
corporation shall be liable for the payment of all 
debts and liabilities of each and all of the separate 
corporations: Provided, such consolidation shall 
not affect liens or the priority of liens established 
against the separate property of any corporation 
prior to the consolidation. (1933, c. 408, s. 2.) 

§ 1224 (i). Property of all kinds vested in new 
corporation. — The consolidated corporation shall 
succeed to and be vested with all money, securi- 
ties, property, real, personal and mixed, tangible 
and intangible, and the title thereto, theretofore 
owned, held and/or administered by each separate 
corporation upon the uses and trusts declared in 
any will, deed or other instrument, and the con- 
solidated corporation shall handle, use and ad- 
minister such trust funds upon the same uses and 
trusts and not otherwise; and the consolidated 
corporation shall be deemed to embrace each sepa- 
rate corporation and to constitute a continuation 
thereof, and no trust fund or other asset of a 
separate corporation shall be construed to revert 
and/or pass to other ownership on the ground 
that such separate corporation has ceased to ex- 
ist for the purpose of administering such trust or 
otherwise. (1933, c. 408, s. 3.) 



§ 1226 



COSTS 



§ 1276 



CHAPTER 23 

COSTS 
Art. 1. Generally 
§ 1226. Summary judgment fof official fees. 

When Cause Is Still Pending. — This section is not applica- 
ble to tlic claim of a referee for payment of services ren- 
dered in a cause which is still pending in the courts upon 
exceptions to his report. Farmers Bank v. Merchants & 
Farmers Bank, 204 N. C. 378, 168 S. F). 221. 

Art. 2. When State Liable for Costs 

§ 1236. Civil actions by the state; joinder of 
private property. 

Where the proceedings for disbarment of an attorney under 
§ 214 has not been sustained the costs are taxable against 
the State under the provisions of this section, and an order 
erroneously taxing them against the county in which the 
matter was tried will be vacated. Committee on Grievances 
of Bar Ass'n v. Strickland, 201 N. C. 619, 161 S. E. 76. 

Art. 5. Liability of Counties in Criminal Actions 

§ 1259. County to pay costs in certain cases; if 
approved, audited and adjudged. — If there is no 
prosecutor in a criminal action, and the defendant 
is acquitted, or convicted and unable to pay the 
costs, or a nolle prosequi is entered, or judgment 
arrested, the county shall pay the clerks, sheriffs, 
constables, justices and witnesses one-half their 
lawful fees; except in capital cases and in prose- 
cutions for forgery, perjury, or conspiracy, when 
they shall receive full fees. No county shall pay 
any such costs unless the same is approved, au- 
dited and adjudged against the county as provided 
in this chapter: Provided, that in Hertford 
County clerks, sheriffs or constables, justices and 
witnesses shall in all cases receive full fees. 
(Rev., s. 1283; Code, ss. 733, 739; R. C, c. 28, s. 
8; R. S., c. 28, s. 12; 1933, c. 68, s. 1.) 

Editor's Note. — The proviso at the end of the section, re- 
lating to Hertford County, was added by Public Laws 1933, 
c. 68. 

§ 1260. Local modification as to counties pay- 
ing costs. — In the following counties the county 
shall pay one-half the fees specified when "not a 
true bill" is found: Alexander, Alleghany, Ashe, 
Avery, Bertie, Brunswick, Burke, Caldwell, Cas- 
well, Catawba, Chatham, Clay, Craven, Davie, 
Duplin, Gaston, Granville, Greene, Guilford, 
Haywood, Henderson, Iredell, Jackson, John- 
ston, Jones, Lenoir, Lincoln, Macon, Madi- 
son, McDowell, Mecklenburg, Mitchell, Mont- 
gomery, Northampton, Onslow, Orange, Pamlico, 
Pender, Person, Pitt, Polk, Richmond, Robeson, 
Rowan, Rutherford, Sampson, Scotland, Stanly, 
Stokes, Surry, Swain, Transylvania, Wake, Wa- 
tauga, Wilkes, Yadkin, Yansey. (Rev., s. 1283; 
Code, ss. 733, 739; 1907, cc. 94, 162, 208, 606, 
627, 695; 1909, cc. 50, 107; P. L. 1911, cc. 76, 167; 
P. L. 1915, c. 22; 1931, cc. 135, 187; 1933, c. 366. 

In Bladen County, where in a criminal pro- 
ceeding before the grand jury a "true bill" is not 
found, the county shall pay one-half fees to 
clerks, sheriffs, officers, or constables who served 
any process in such proceeding. (1909, c. 183.) 

In Brunswick and Catawba counties the county 
shall not be liable for any part of the costs of jus- 
tices of the peace, when "not a true bill" is found. 
(Rev., s. 1283; 1905, c. 598; 1909, c. 107.) 

In Montgomery County, in criminal cases, 

[4 



where the defendant is convicted in superior court, 
justices of the peace are entitled to full fees, if any 
are legally taxed in the bill of costs. (1909, c. 223.) 

In New Hanover County, in a criminal action, if 
there is no prosecutor, and the defendant is con- 
victed and serves out his sentence on the public 
roads of the county, the county shall pay one-half 
fees as provided in the first sentence of this sec- 
tion. (Rev., s. 1283; 1905, c. 511.) 

Editor's Note. — 

Haywood County was added to the list of counties by 
Public L,aws 1933, c. 366. The amendment provides that that 
county shall only be liable for one-half of fees to clerks, 
shcrit'ts antl constables serving process. 

§ 1266(a). Sums due credited on taxes due by 
payee. — ^Whenever a bill of costs in a criminal ac- 
tion is presented to any board of county commis- 
sioners in any county of the state for payment, as 
provided in chapter 23, article 5, of the consoli- 
dated statutes, and the said bill is ordered to be 
paid by the said county commissioners, it shall 
be the duty of the clerk of said board, before 
issuing any orders for payment of the sum set 
out in said bill, to ascertain whether any person 
to whom any amount is due on said bill of costs, 
is indebted to the county for taxes, and if said 
person to whom said order is payable is so in- 
debted, the order shall state in its face, "Pay- 
able only on taxes due County," 

and upon presentation of such order to the sheriff 
or tax collector, said sheriff or tax collector shall 
give said taxpayer credit for the sum designated 
in said order, and the said sheriff or tax collector 
shall be entitled to receive credit for said sum 
so paid in his settlement for taxes. 

It shall be unlawful for any board of county 
commissioners to pay to any person who is in- 
debted to the county for taxes any money pay- 
able out of the revenues of the county on account 
of costs in a criminal case, which is payable by 
the county, except as provided in section one 
above. 

Upon the ratification of this section the secre- 
tary of state is hereby authorized and directed to 
forward to the clerk of the board of county com- 
missioners of each of the several counties of the 
state a copy of this section. (1933, c. 245.) 

By Public Laws of 1933, c, 501. Wilson County is exempted 
from the operation of this section. By Public Laws of 
1933, c. 426, tlie same exemption is made as to Granville and 
Craven Counties. 

Art. 8. Fees of Witnesses 

§ 1276. Local: trafficking in witness tickets 
regulated. — 1. Amounts Paid for Tickets to be 
Endorsed thereon. — Whenever any person shall 
prove a ticket as a witness in any criminal action, 
wherein any county in this state shall be adjudged 
to pay the cost or any part thereof, and such 
person shall sell or assign the same to any other 
person, firm or corporation, he shall state on the 
back of the ticket the amount which he shall re- 
ceive from the assignee named for such sale or 
assignment, and the assignee shall make an affi- 
davit of the truthfulness of such amount as 
stated in the endorsement of sale. 

2. Amount Receivable by Assignee. — It shall 
be unlawful for any assignee of any ticket proved 
in a criminal action, wherein any county is or 
shall be adjudged to pay the costs thereof, to re- 

n 



§ 1287 



COUNTIES AND COUNTY COMMISSIONERS 



§ 1316(a) 



ceive from the county any greater sum than the 
amount paid by such person, firm or corporation, 
with ten per cent added to the amount received 
by the person proving the ticket. 

3. If Improperly Endorsed Not Taxed against 
County. — It shall be the duty of the clerk of the 
superior court, in making out the bills of cost 
which shall be adjudged against the county for 
payment, to examine carefully all witness tickets, 
and whenever any ticket shall fail to show the 
amount paid for any transfer, sale or assignment 
properly endorsed on said ticket, and sworn to, 
as above provided in subsection one, he shall not 
tax the same against any county for payment. 

4. Collection of Greater Amount Misdemeanor. 
— If any person shall collect from any county in 
this state a sum greater than the amount received 
by the person proving said ticket, with ten per 
cent added thereto, he shall be guilty of a mis- 
demeanor, and shall, upon conviction, be fined 
double the amount so collected by him, not ex- 
ceeding the sum of fifty dollars, or imprisoned 
not more than thirty days. 

5. False Statement Perjury. — Any person pur- 
chasing any ticket in any criminal action, wherein 
the county shall be adjudged to pay the cost or 
any part thereof, who shall make a false statement 
of the amount paid by him for such ticket or tickets, 
shall be guilty of perjury, and upon conviction 
shall be punished as for that offense. 

6. To What Counties Applicable. — This sec- 
tion shall apply only to the counties of Anson, 
Buncombe, Columbus, Forsyth, Gaston, Haywood, 
Richmond, Robeson, Rutherford, and Surry. (1907, 
c. 120; P. L. 1913, cc. 791, 793; 1915, c. 305; 1933, 
c. 366, s. 2.) 

Editor's Note. — The section was made applicable to Hay- 
wood County by Public Laws 1933, c. 366. 

§ 1287. Witnesses not paid without certificate; 
court's discretion. 

Appeal. — In an appeal from defendant's motion to retax the 
■costs in a criminal action it should appear on the record 
that the provisions of this and § 1284 were complied with 
and when it does not so appear the case will be remanded. 
State V. Kirby, 201 N. C. 789, 161 S. E- 483. 

Art. 9. Criminal Costs before Justices, Mayors, 
County or Recorder's Courts 

§ 1288. Liability for criminal costs before jus- 
tice, mayor, county or recorder's court. — The party 
convicted in a criminal action or proceeding, with- 
in the jurisdiction of a justice of the peace, before 
any justice, mayor, county or recorder's court, 
shall always be adjudged to pay the costs, and 
if the party charged be acquitted, the complain- 
ant shall be adjudged to pay the costs, and may 
be imprisoned for the nonpayment thereof, if the 
justice, mayor, county or recorder's court shall 
adjudge that the prosecution was frivolous or 
malicious. But in no action or proceeding in 
which a justice of the peace has final jurisdiction, 
commenced or tried in a court of a justice of the 
peace, mayor, county or recorder's court shall 
the county be liable to pay any costs: any de- 
fendants or prosecuting witness shall have the 
right of appeal to the superior court: Provided, 
that in cases where the defendant is sentenced to 
prison or to work upon the public roads by any 
justice of the peace in Jackson county, and in 
case such defendant is unable to pay the costs 



of such action, then the county of Jackson shall 
be liable for the payment of the costs of the 
trial justices and the sheriff of said county. (Rev., 
1307; Code, s. 895; 1868-9, c. 178; 1879, c. 92, s. 3; 
1881, c. 176; 1931, c. 252; 1933, c. 225, s. 1.) 

Editor's Note. — 

The proviso, relating to Jackson County, was added by 
Public I.aws 1933, c. 225. 



CHAPTER 24 

COUNTIES AND COUNTY COMMIS- 
SIONERS 

Art. 1. Corporate Existence and Powers of 
Counties 

§ 12&1. Corporate powers of counties. 

Power to Enter Consent Judgment. — Under this section 
the commissioners have the authority to assent to the entry 
of a consent judgment in an action pending against the 
ecounty, when such judgment is entered in good faith and is 
free from fraud, etc., a consent judgment being a contract 
of the parties spread upon the records with the approval 
and sanction of a court of competent jurisdiction. Weaver 
V. Hampton, 204 N. C. 42, 167 S. E. 484. 

Art. 2. County Commissioner's 
§ 1297. Powers of board 

Subsection 8^4- — 

In General. — This section authorizes the boards of commis- 
sioners of the various counties to levy a tax for the pur- 
pose of maintaining county homes for the aged and infirm. 
This is a special purpose within the contemplation of the 
constitutional provision, and the words "county aid and 
poor relief" should be construed to be within the scope of 
the special purpose which is indicated in the statute. Atlan- 
tic Coast I,ine R. Co. v. I^enoir County, 200 N. C. 494, 496, 
157 S. E. 610. 

Art. 5A. Contracts 

§ 1316(a). Contracts involving expenditure of 
$1,000 or mor'e let after advertisement for bids.— 

No contract for construction or repair work, or 
for the purchase of apparatus, supplies, materials 
or equipment, involving the expenditure of pub- 
lic money, the estimated cost of which amounts 
to or exceeds one thousand ($1,000) dollars, ex- 
cept in cases of special emergency involving the 
health or safety of the people or their property, 
shall be awarded by any board or governing body 
of any county, city, town or other sub-division of 
the state, unless proposals for the same shall 
have been invited by advertisement once in at 
least one newspaper having general circulation in 
the county, city, town or other sub-division, the 
publication to be at least one week before the 
time specified for the opening of said proposals: 
Provided, if there is no newspaper published in 
the coui;ty and the estimated cost of the contract 
is less than two thousand ($2,000) dollars, such 
advertisement may be either published in some 
newspaper as required herein or posted at the 
court house door not later than one week before 
the opening of the proposals in answer thereto, 
and in the case of a city, town or other sub-divi- 
sion wherein there is no newspaper published 
and the estimated cost of the contract is less than 
two thousand ($2,000) dollars, such advertise- 
ment may be either published in some newspaper 
as required herein or posted at the court house 
door of the county in which such city, town or 
other sub-division is situated and at least one 
public place in such city, town or other sub-divi- 



148] 



§ 1317(a) 



COUNTIES AND COUNTY COMMISSIONERS 



§ 1334(8) 



sion. Such advertisement shall state the time 
and place where plans and specifications of pro- 
posed work, of complete description of apparatus, 
supplies, materials or equipment may be had and 
the time and place for opening the proposals in 
answer to such advertisement, and shall reserve 
to said board or governing body the right to re- 
ject any or all such proposals. All such propos- 
als shall be opened in public, shall be recorded on 
the minutes of the board or governing body and 
the award, if any be made, shall be made to the 
lowest responsible bidder, taking into considera- 
tion quality and the time specified in the proposal 
for performance of the contract. Each proposal 
shall be accompanied by a deposit with the 
board or governing body of cash or a certified 
check on some bank or trust company authorized 
to do business in this state, of an amount equal 
to not less than two per centum (2%) of the pro- 
posal; said deposit to be retained in the event of 
failure of the successful bidder to execute the 
contract within ten days after the award or to 
give satisfactory surety as required herein. All 
contracts required herein shall be executed in 
writing, and where the amount involved is two 
thousand ($3,000) dollars or more, the board or 
governing body shall require the person, firm or 
corporation to whom the award of contract is 
made to furnish bond in some surety company 
authorized to do business in this state or require 
a deposit of money, certified check or govern- 
ment securities, for the full amount of said con- 
tract for the faithful performance of the terms of 
said contract, and no such contract shall be al- 
tered except by written agreement of the con- 
tractor, the sureties on his bond, and the board 
or governing body. Such surety bond or other 
securities as required herein shall be deposited 
with the treasurer of the unit until the contract 
has been carried out in all respects. (1931, c. 
338, s. 1; 1933, c. 50.) 

Editor's Note. — In the third from the last sentence of this 
section, Public Laws 1933, c. 50, substituted the words "au- 
thorized to do business in" for the words "organized under 
the laws of." 

Art. 6. Courthouse and Jail Buildings 

§ 1317(a). Formation of district jail by con- 
tiguous counties. — Any two or more counties con- 
tiguous to one another or which lie in a continu- 
ous group may enter into an agreement for the 
construction and maintenance of a district jail. 
Such agreement shall specify the amount of the 
construction and maintenance cost to be borne by 
each county and shall fix the terms upon which 
such jail may thereafter be used by the counties 
becoming parties to the agreement. 

Such counties may also by agreement establish 
a jail already built, as a district jail, and provide 
for the improvement, enlargement, maintenance 
cost and use thereof. 

When and if such district jail has been estab- 
lished, all the counties in such district may then 
sell or dispose of their separate jails upon such 
terms as the board of county comrriissioners may 
decide. (1933, c. 201, s. 1.) 

Art. 7. County Revenue 

§ 1334. Annual statement of claims and reve- 
nues to be published. — The board shall cause to 



be posted at the courthouse within five days after 
each regular December meeting and for at least 
four successive weeks, or after each regular 
monthly meeting, if they deem it advisable, and 
for one week, the name of every individual whose 
accounts has been audited, the amount claimed and 
the amount allowed; and also at the same time 
and in the same manner post a full statement of 
county revenue and charges, showing by items the 
income from every source and the disbursements 
on every account for the past year, together with 
the permanent debt of the county, if any, when 
contracted, and the interest paid or remaining un- 
paid thereon. The board shall also publish the 
said statement in some newspaper in the county: 
Provided that the board of county commissioners 
of Hertford County shall not be required to pub- 
lish the statement in some newspaper in the county 
if, in their discretion, the cost of the publication 
is excessive. (Rev., s. 1388; Code, s. 752; 1901, c. 
19G; 1905, C. 227; 1933, c. 525, s. 1.) 

Editor's Note. — 

The proviso at the end of the section declared prior to the 
amendment by c. 525 Public Laws 1933, that the cost of 
publication should not exceed one-half of a cent a word. 

Art. 7A. County Finance Act 

§ 1334(5). Revenue anticipation loans for debt 
service. — For the purpose of paying the principal 
or interest of bonds or notes due or to become due 
within four months, and not otherwise adequately 
provided for, any county may borrow money in an- 
ticipation of the receipt of either the revenues of 
the fiscal year in which the loan is made, or the 
revenues of the next succeeding fiscal year, and 
such loan shall be payable not later than the end 
of such next succeeding fiscal year. For the 
purpose of paying or renewing notes evidencing 
indebtedness incurred before July first, one thou- 
sand nine hundred thirty-three, and authorized by 
this article as amended to be funded, any county 
may issue new notes from time to time until such 
indebtedness is paid out of revenues or funded 
into bonds. Such new notes may be made pay- 
able at any time or times, not later than five years 
after July first, one thousand nine hundred thirty- 
three, notwithstanding anything to the contrary 
in this section. (1937, c. 81, s. 5; 1931, c. 60, s. 
63, c. 294; 1933, c. 259, s. 2.) 

Editor's Note. — 

The djtes in this section were changed, by Public Laws 
1933, c. 259, from March 18th 1931 to July 1st 1933. 

§ 1334(8). Purposes for which bonds may be 
issued and taxes levied. — The special approval of 
the general assembly is hereby given to the is- 
suance by counties of bonds and notes for the 
special purposes named in this section, and 
to the levy of property taxes for the payment of 
such bonds and notes and interest thereon. Ac- 
cordingly, authority is hereby given to all counties- 
in the state, under the terms and conditions here- 
in described, to issue bonds and notes, and to levy 
property taxes for the payment of the same, with 
interest thereon, for the following purposes, in- 
cluding therein purchase of the necessary land 
and, in the case of buildings, the necessary equip- 
ment: 

(a) Erection and purchase of schoolhouses. 

(b) Highway construction and reconstruction, 
including bridges and culverts. 



N. C. Supp.— 4 



[49] 



1334(9) 



COUNTIES AND COUNTY COMMISSIONERS 



§ 1334(9) 



(c) Bridge construction. 

(d) Erection and purchase of court-house and 
jails, including a public auditorium within and as 
a part of a court-house. 

(e) Erection and purchase of county homes for 
the indigent and infirm. 

(f) Erection and purchase of hospitals. 

(g) Erection and purchase of public audi- 
toriums. 

(h) Elimination of grade crossings over rail- 
roads and interurban railways, including ap- 
proaches and damages, when not less than one- 
half of the cost shall be payable to the county at 
one time, or from time to time under contract 
made with a railroad or interurban railway com- 
pany, the bonds herein authorized to be for the 
entire cost or any portion thereof. 

(i) Acquisition and improvement of lands for 
public parks and playgrounds. 

(j) Funding or refunding of valid indebtedness 
incurred before July first, one thousand nine hun- 
dred thirty-three, if such indebtedness he pay- 
able at the time of the passage of the order au- 
thorizing the bonds or be payable within one 
year thereafter, or, although payable more than 
one year thereafter, is to be cancelled prior to 
its maturity and simultaneously with the issuance 
of the funding or refunding bonds, and all debt 
not evidenced by bonds which was created for 
necessary expenses of any county and which re- 
mains outstanding at the ratification of this act 
is hereby validated. The term 'indebtedness' as 
used in this clause (j) includes all valid or en- 
forceable indebtedness of a county, whether in- 
curred for current expenses or for any other pur- 
pose, except indebtedness incurred in the name 
of a county on behalf of a school district or town- 
ship and not payable by means of taxes authorized 
to be levied on all taxable property in the county. 
It also includes indebtedness incurred in the name 
of a county board of education for the maintenance 
of schools for the six months' term required by 
the State Constitution. It includes indebtedness 
evidenced by bonds, bond anticipation notes, 
revenue anticipation notes, judgments and unpaid 
interest on said indebtedness accrued to the date 
of the bonds issued. It also includes indebted- 
ness assumed by a county as well as indebtedness 
created by a county. Bond anticipation notes evi- 
dencing indebtedness incurred before July first, 
one thousand nine hundred thirty-three, may, at 
the option of the governing body, be retired either 
by means of funding bonds issued under this sub- 
section or by means of bonds in anticipation of 
the sale of which the notes were issued. 

(k) A portion to be determined by the govern- 
ing body of the cost of construction of bridges at 
county boundaries, when an adjoining county or 
municipality, within or without the state, shall 
have agreed to pay the remaining cost of con- 
struction. 

(1) A portion to be determined by the govern- 
ing bod\' of the cost of public buildings con- 
structed or acquired in order that a part of such 
buildings may be used for a purpose hereinabove 
expressed when a municipality within the county 
shall agree to pay the remaining cost. 

(m) Acquiring, constructing and improving 
airports or landing fields for the use of airplanes 

[5 



or other aircraft. (1927, c. 81, s. 8; 1929, c. 171, 
s. 1; 1931, c. 60, s. 54; 1933, c. 259, s. 2.) 
Editor's Note. — 

Public Laws 1933, c, 259 omitted a proviso, from subsec- 
tion (j), which related to refunding serial bonds and added 
the second sentence to the definition of the term "indebted- 
ness" contained in that subsection. By Public Laws of 
1933, c. 566 the prior Amendment of 1933 was made not ap- 
plicable to bonds passed by the County Commissiontrs of 
Guilford County prior to March ISth 1933. 

§ 1334(9). Order' of governing body required. — 

Bonds of a county shall be authorized by an or- 
der of the governing body, the term "order" 
being here used to indicate the order, resolution, 
or measure which declares that bonds shall be 
issued, in order to differentiate the same from 
such subsequent resolution as may be passed in 
respect of details which such order is not required 
to contain. Such order shall state: 

(a) In brief and general terms, the purpose for 
which the bonds are to be issued, but not more 
than one purpose of issue shall be stated, the 
purposes set forth in any one subsection of section 
1334(8) to 'be deemed as one purpose, but, in the 
case of funding or refunding bonds, a brief descrip- 
tion of the indebtedness to be funded or refunded 
sufificient to identify such indebtedness; 

(b) The maximum aggregate principal amount 
of the bonds; 

(c) That a tax sufificient to pay the principal 
and interest of the bonds when due shall be an- 
nually levied and collected, provided, in lieu of 
the foregoing and in the case of funding or re- 
funding bonds, such statement with respect to 
an annual tax may, in the discretion of the gov- 
erning body, be altered or omitted; 

(d) That a statement of the county debt has 
been filed with the clerk, and is open to public 
inspection; 

(e) A clause stating the conditions upon which 
the order will become effective, and the same 
shall become effective in accordance with such 
clause, which clause shall be as follows: 

1. If the bonds are funding or refunding bonds, 
that the order shall take effect upon its passage, 
and shall not be submitted to the voters; or 

3. If the 'bonds are for a purpose other than 
the payment of necessary expenses, or if the gov- 
erning body, although not required to obtain the 
assent of the voters before issuing the bonds, 
deems it advisable to obtain such assent, that the 
order shall take effect when approved by the voters 
of the county at an election as provided in this 
article; or 

3. In any other case, that the order shall take 
effect thirty days after the first publication thereof 
after final passage, unless in the meantime a pe- 
tition for its submission to the voters is filed un- 
der this article, and that in such event it shall 
take effect when approved by the voters of the 
county at an election as provided in this article. 

4. No restriction, limitation, or provision con- 
tained in any other law, except a law of state- 
wide application relating to the issuance of bonds, 
notes or other obligations of a county, shall ap- 
ply to bonds or notes issued under this article 
for the purpose of refunding, funding or renew- 
ing indebtedness incurred before July first, nine- 
teen hundred and thirty-three, and no vote of the 
people shall be required for the issuance of bonds 

0] 



§ 1334(11) 



COUNTIES AND COUNTY COMMISSIONERS 



§ 1334(41) 



or notes for said purposes, unless required by the 
constitution of this state. (1!)27, c. 81, s. 9; 1931, 
c. 60, s. 55; 1933, c. 259, s. 2.) 

Editor's Note. — The last part of subsection (a) relating 

to description of indebtedness to be funded or refunded and 

the proviso to subsection (c) were added by Public Laws 
1933, c. 259. 

§ 1334(11). Maturities of bonds.— All bonds 
shall mature as hereinafter provided, and no fund- 
ing or refunding bonds shall mature after the ex- 
piration of the period herein fixed for such bonds, 
respecti\-ely; and no other bonds shall mature af- 
ter the expiration of the period estimated by the 
governing body as the life of the improvement 
for which the bonds are issued, each such period 
to be computed from a day not later than one year 
after the passage of the order. Such periods shall 
not exceed the following for the respective classes 
of bonds: 

(a), (b) Funding or refunding bonds, fifty years. 

(c) Bridge bonds (including retaining walls and 
approaches), forty years, unless constructed of 
wood, and in that case, ten years. 

(d) Elimination of grade crossings, thirty years. 

(e) Lands for public parks and playgrounds, in- 
cluding improvements, buildings, and equipment, 
forty years. 

(f) Highway construction or reconstruction, in- 
cluding bridges and culverts, if the surface — 

1. Is constructed of sand and gravel, five years; 

2. Is of waterbound macadam or penetration 
process, ten years; 

3. Is of brick, blocks, sheet asphalt, bitulithic, 
or bituminous concrete, laid on a solid foundation, 
or is of concrete, twenty years, 

(g) If, in the order or subsequent resolution, 
the governing body should be unwilling to pro- 
vide that the surface of highways to be constructed 
or reconstructed with the proceeds of bonds shall 
have any surface described above, it shall be law- 
ful to provide for a different surfacing if the state 
highway commission or the chairman thereof 
shall certify, and if an order or resolution of the 
governing body shall recite such certification 
(which recital shall be conclusive for the purpose 
of this article), that the surfacing so provided is be- 
lieved to be of at least equal durability with the 
surfacing described in one or the other of the 
three classes of surfacing above described, and in 
that event the bonds shall not mature later than 
the period hereinabove provided for such similar 
surfacing. 

(h) Public buildings, if they are — 

1. Of fireproof construction, that is, a building 
the walls of which are constructed of brick, stone, 
iron, or other hard, incombustible materials, and 
in which there are no wood beams or lintels, and 
in which the floors, roofs, stair halls, and public 
halls are built entirely of brick, stone, iron, or 
other hard, incombustible materials, and in which 
no woodwork or other inflammable materials are 
used in any of the partitions, flooring, or ceiling 
(but the building shall be deemed to be of fireproof 
construction notwithstanding that elsewhere than 
in the stair halls and entrance halls there is 
wooden flooring supported by wooden sleepers 
on top of the fireproof floor, and that it contains 
wooden handrails and treads, made of hardwood, 
not less than two inches thick), forty years; 

[51 



2. Of non-fireproof construction, that is, a 
building the outer walls of which are constructed 
of brick, stone, iron, or other hard, incombustible 
materials, but which in any other respect differs 
from a fireproof building as defined in this sec- 
tion, thirty years; 

3. Of other construction, twenty years. 
(i) Land for airports or landing fields, including 

grading and drainage, forty years. 

(j) Buildings, equipment and oth/er improve- 
ments for airports or landing fields, other than 
grading and drainage, ten years. (1927, c. 81, 
s. 11; 1929, c. 171, s. 2; 1931, c. 60, s. 56; 1933, 
c. 259, s. 2.) 

Editor's Note. — 

Prior to Public Laws 1933, c. 259, subsection Ca) of this 
section provided for thirty years in case the debt was less 
than ten per cent of the assessed valuation of property in 
the county and fifty years in other cases. 

§ 1334(lla). Accelerating maturity of bonds 
and notes of counties and municipalities. — Any 

municipality or county may provide that its bonds 
or notes shall become due and payable before 
maturity at the election of the holders or a rep- 
resentative of the holders, or a majority in amount 
of the holders, upon the happening of such events 
and upon such conditions and subject to such limi- 
tations (which may include a provision for rescis- 
sion of action taken in the exercise of said election) 
as may be set forth in a resolution or ordinance 
passed before the issuance of the bonds or notes: 
Provided, however, that such a provision, in or- 
der to become effective, must either be set forth 
in the bonds or notes or incorporated therein by 
reference to such resolution or ordinance. The 
negotiability of such bonds or notes shall not be 
affected by the adoption of such provision or by 
the recital thereof in the bonds or notes. (1931, 
c. 418; 1933, c. 258, s. 3.) 

Editor's Note.^Public Laws 1933, c. 258 inserted the words 
"or a majority in amount of the holders" and added the last 
sentence relating: to negotiability. 

§ 1334(33). Bonded debt payable in installments. 

— Each bond issue made under this article shall 
mature in annual installments or series the first of 
which, if funding bonds, shall be made payable 
not more than two years, and if not funding 
bonds, not more than three years, after the date of 
the first issued bonds of such issue and the last 
within the period prescribed by section 1334(11) 
for bonds of the class issued. No such install- 
ment or series shall be more than two and one- 
half times as great in amount as the smallest prior 
installment or series of the same bond issue. If 
all the bonds of an issue are not issued at the 
same time, the bonds at any one time outstand- 
ing shall mature as aforesaid. This section shall 
not apply to funding or refunding bonds. (1927, 
c. 81, s. 33; 1931, c. 60, s. 57; 1933, c. 259, s. 2.) 

Editor's Note.— Prior to the Amendment of 1933, P. L. c. 
259. the section applied to funding and refunding bonds ex- 
cept in cases where the debt exceeded ten per cent of the 
value of county property. 

§ 1334(41). Taxes levied for payment of bonds. 
— The full faith and credit of the county shall be 
deemed to be pledged for the punctual payment 
of the principal of and interest on every bond and 
note issued under this article, including bonds for 
which special fuuds are. provided. ••. The g^veryiing i y 






§ 1334(46) 



COUNTIES AND COUNTY COMMISSIONERS 



§ 1334(76)a 



body shall annually levy and collect a tax ad val- 
orem upon all the taxable property in the county 
sufficient to pay the principal and interest of all 
bonds issued under this article as such principal 
and interest become due: Provided, however, that 
such tax may be reduced by the amount of other 
moneys appropriated and actually available for 
such purpose. The powers stated in this section 
in respect of the levy of taxes for the payment of 
the principal and interest of bonds and notes shall 
not be subject to any limitation prescribed by law 
upon the amount or rate of taxes which a county 
may levy; the General Assembly does here give 
its special approval to the levy of taxes in the 
manner and to the extent provided by this article 
for the payment of obligations incurred pursuant 
to this article for the special purposes for which 
such obligations are in this article authorized. 
Taxes levied under this section shall be levied and 
collected in the same manner as other taxes are 
levied and collected upon property in the county. 
If any member of the governing body or any 
county officer shall vote to apply or shall apply 
or participate in applying any taxes in violation 
of this section, such member or officer shall be 
guilty of a felony, and shall be prosecuted by the 
solicitor of the district in which the county lies, 
and shall be fined not more than ten thousand dol- 
lars ($10,000) or imprisoned in the state prison 
not more than twenty years, or both, at the dis- 
cretion of the court, and shall forfeit and pay to 
any taxpayer or any holder of such bonds or notes 
who sues for the same the sum of two hundred 
dollars for each such act, and also all damages 
caused thereby. 

Nothing in this section shall be construed as 
authorizing an unlimited tax for the payment of 
bonds not issued for a special purpose within the 
meaning of section six of article five of the con- 
stitution of North Carolina. It is the intention of 
this article, however, to authorize the issuance of 
funding and refunding bonds and notes as herein 
provided in cases where taxes for their payment 
is limited by the constitution, as well as in other 
cases. The general assembly hereby declares 
that an emergency exists by reason of the present 
extraordinary financial condition of the counties 
of this state, and hereby gives it special approval 
to the levying of taxes to the fullest extent per- 
mitted by the constitution for the purpose of pay- 
ing bonds and notes issued hereunder to fund or 
refund or renew indebtedness now outstanding or 
incurred before July first, nineteen hundred and 
thirty-three, and hereby declares that the payment 
of such bonds and notes constitutes a special pur- 
pose: Piovided, in case of funding or refunding 
bonds which do not mature in installments as 
provided in section 1334(33), a tax for the payment 
of the principal of the said bonds need not be levied 
prior to the fiscal year or years said bonds ma- 
ture, unless it is so provided for in an order or 
resolution passed before the issuance of said 
bonds, in which case such tax shall be levied in 
accordance with the provisions of such order or 
resolution. (1927, c. 81, s. 41; 1931, c. 60, s. 60; 
1933, c. 259, s. 2.) 



Editor's Note. — 

Public Laws 19J3, c. 259, added the last proviso of this 
section as it now reads. 



Art. 7B. Collection of County Taxes 

§ 1334(46). Tax lists and books delivered to 
sheriff. 

Cited in Martin v. Swain County, 201 N. C. 68, 158 S. E- 
843. 

§ 1334(47). Sheriff to present full settlement 
for previous year and give bond. 

For amendment applicable to commissions of the tax col- 
lector of Yancey County, see Public Laws of 1933, c. 184. 

Art. 7C. County Fiscal Control 
§ 1334(53). Title; definitions. 

Cited in Martin v. Swain County, 201 N. C. 68, 158 S. K. 

843. 

§ 1334(54). County accountant. 

Editor's Note. — 

Public Laws 1933, c. 295 repeals this section insofar as it 
applies to Harnett County and makes other provision for that 
county. 

§ 1334(61). Supplemental budget showing. — As 

soon as practicable after the first Monday in July, 
and before any levy of taxes is made, the county 
accountant shall submit to the board a supplemen- 
tal budget showing: (a) the amount of any increase 
or decrease in each item of (1) deficits and (2) 
unencumbered balances and (3) surplus revenues 
as reported by him in the budget estimate, and 
(b) the amount of miscellaneous revenues col- 
lected in the preceding year from sources other 
than taxation, this amount to be separately clas- 
sified as to funds and functions, and (c) an esti- 
mate of the amount of taxes for the current fis- 
cal year which will not be collected in the same 
year. Upon the submission of the figures show- 
ing increase or decrease in deficits, the appropri- 
ation resolution shall be deemed automatically 
amended by adding such increase to or subtract- 
ing such decrease from the amount appropriated 
for the fund or function to which such deficit 
pertains, and it shall be the duty of the clerk to 
record the amount of increase or decrease on the 
margin of the recorded appropriation resolution. 
The figures of the supplemental budget showing 
increases or decreases in unencumbered balances 
and surplus revenues, and showing the amount 
of miscellaneous revenues collected in the pre- 
ceding fiscal year, from sources other than taxes, 
and showing the estimate of taxes uncollectible 
in the current fiscal year, shall not affect the ap- 
propriation resolutions, but shall be taken into 
consideration in the levy of taxes as' hereinafter 
provided. (1927, c. 146, s. 10; 1933, c. 191.) 

Editor's Note. — Public Laws of 1933, c. 191. deleted from the 
end of the first sentence a clause which required a mathe- 
matical computation in determining the estimate mentioned 
in (c). 

§ 1334 (76)a. Local units authorized to accept 
their bonds in payment of such judgments and 
claims. — The governing bodies of the various 
counties, cities, towns, and other units in the 
state are hereby authorized in their discretion to 
accept their own bonds, at par, in settlement of 
any and all claims which it may have against any 
person, firm, or corporation, on account of any 
money of said unit held in any failed bank or on 
acccvunt of any judgment secured against any 
person, firm, or corporation on account of the 
funds in said bank. 

Upon an order issued by the governing au- 



[52] 



§ 1349(a) 



COUNTIES AND COUNTY COMMISSIONERS 



§ 1382(4) 



thorities of the county, city, town, or other unit, 
the treasurer of the county, city, town, or other 
unit is hereby authorized and empowered to ac- 
cept the bonds of said unit in settlement of said 
claim, as set out in section 1, and to mark said 
claim satisfied in full, whether the same has 
been reduced to judgment or not. (1933, c. 376.) 

Art. 9. County Prisoners 

§ 1349(a). Artest of escaped persons from penal 
institutions. — Upon information received from the 
superintendent of any correctional or any penal in- 
stitution, established by the laws of the state, that 
any person confined in such institution or assigned 
thereto by juvenile or other court under authority 
of law, has escaped therefrom and is still at large, 
it shall be the duty of sheriflfs of the respective 
counties of the state, and of any peace officer in 
whose jurisdiction such person may be found, to 
take into his custody such escaped person, if to 
be found in his county, and to cause his return to 
the custody of the proper officer of the institution 
from which he has escaped. (1933, c. 105, s. 1.) 

Art. 11. Consolidation, Annexation and Joint 
Administration of Counties 

§ 1382(1). Contiguous counties may consolidate 
into one. — Any two or more counties which are 
contiguous, or which lie in a continuous boundary 
may, in the manner herein prescribed, consolidate 
so as to form a single county. Where any group 
of counties so situated desires to effect such con- 
solidation, a uniform resolution to this effect, set- 
ting forth the name of the proposed new county, 
shall be adopted by the governing bodies thereof, 
which resolution shall call a special election to be 
held on a specified date which shall be the same in 
all of said counties but not less than sixty nor 
more than ninety days from the last date of the 
adoption of such resolution in any of said counties. 
Said resolution shall also specify what group of 
counties it is proposed to consolidate, the name 
of the new county thus to be formed, and the 
county seat thereof. The governing body of each 
of said counties shall cause said resolution to be 
printed in some newspaper published therein, once 
a week for a period of six weeks prior to the date 
of said election. (1933, c. 193, s. 1.) 

§ 1382(2). Election laws applicable. — The elec- 
tion thus called shall be held in each of said coun- 
ties and shall be conducted pursuant to the gen- 
eral election laws governing elections for mem- 
bers of the general assembly. The registration 
books shall be kept open in each of said counties 
for a period of twenty consecutive days prior to 
said election, and notice of such registration shall 
be advertised and registrars appointed in the man- 
ner now prescribed by law governing elections for 
members of the general assembly. Citizens of 
said counties who are registered and are otherwise 
qualified to vote shall be entitled to vote in said 
election in their respective counties, for the pur- 
pose of determining whether it is the will of such 
voters that the proposed consolidation be effected. 
For use in said election the county board of elec- 
tions in each of said counties shall cause to be 
printed and provided at each polling place a sufifi- 

[ 



cient number of ballots on which shall be printed 
the following: 

D For Consolidation 

n Against Consolidation 

Place a cross (x) mark in the square pre- 
ceding the proposition for which you desire 
to vote. 
All such ballots shall have printed on the back 
thereof the facsimile of the signatures of the mem- 
bers of the county board of elections of the county 
in which they are being used, and none other than 
such official ballots shall be valid for use in said 
election. As soon as practicable the county board 
of elections in each of said counties shall certify 
the result of said election to the governing bodies 
of all of the counties in said group, and each gov- 
erning body shall cause the complete results of 
said election to be spread of record upon their 
respective minutes. If it appear that a majority 
of those voting in each of said counties voted 
in favor of the proposed consolidation, then said 
consolidation shall be declared to be in effect, and 
thereupon, the several counties shall stand abol- 
ished except as hereinafter provided, and the new 
county thus created shall for all purposes be con- 
stituted one of the counties of this state with alt 
the rights, powers, and functions incident there- 
to under the general laws. If it appear that a 
majority in any one of said counties voted against 
the proposed consolidation, then said consolida- 
tion shall be declared to have failed for all pur- 
poses. (1933, c. 193, s. 2.) 

§ 1382(3). New county board of elections. — In 

case such consolidation be effected, the county 
boards of elections of the counties thus consoli- 
dated, acting together as one board, shall for the 
time being serve as a temporary county board of 
elections for the new county thus created, until 
the expiration of the terms for which they were 
appointed by the state board of elections. There- 
after the state board of elections shall appoint for 
such new county a county board of elections con- 
sisting of three members, in the manner and for 
the term now prescribed by law. (1933, c. 193, 
s. 3.) 

§ 1382(4). Special election for new county offi- 
cers. — In case such consolidation be effected, then 
said temporary county board of elections shall 
immediately call and shall hold a special election 
in such new county, on a date not less than forty- 
five nor more than sixty days after the date on 
which said consolidation was voted into effect, for 
the purpose of electing for said new county all 
constitutional and other county and township offi- 
cers, except justices of the peace, as now provided 
by law for counties throughout the state, includ- 
ing a board of county commissioners consisting of 
five members. No elections shall be held to fill 
any office theretofore existing in one or more of 
the group of counties thus consolidated if such 
office did not exist in each of said counties, but all 
of such offices peculiar to only a part of the coun- 
ties brought into said consolidation shall be 
deemed abolished in respect to the new county. 
All constitutional county and township offices, all 
offices created for counties and townships by gen- 
eral laws, and all other offices in the group of 
counties thus consolidated, provided they existed 
53 ] 



§ 1382(5) 



COUNTIES AND COUNTY COMMISSIONERS 



§ 1382(13) 



in each of sa^d counties, are hereby created for 
the new county effected by such consolidation, 
with the same rights, powers, duties and functions 
pertaining to such ofTices under the existing law. 
In order that elections by townships may be con- 
ducted, the various township lines and names as 
they existed before consolidation shall continue in 
effect, and townships of the several counties shall 
be deemed townships of the new county until 
thereafter altered in the manner prescribed by law. 
(1933, c. 193, s. 4.) 

§ 1382(5). Term of new officer's; salaries. — All 

officers elected for the new county at said special 
election shall hold office until the next general 
election at which time their successors shall be 
elected for the regular term prescribed by law. 
The salaries of all officers elected for the new 
county at said special election shall be the same 
as those now fixed by law for such offices. In 
trase the salaries of any officers in the counties 
thus consolidated were not uniform, then any 
officer elected for the new county at such special 
■election shall be entitled to a salary equal to the 
liighest salary paid for that particular office in 
rany of said counties before such consolidation was 
effected. (1933, c. 193, s. 5.) 

§ 1382(6). Retention of old officers till qualifica- 
tion of new. — Notwithstanding such consolidation 
is voted upon favorably, all the existing officers 
in each of said counties shall continue to function 
as theretofore and shall have full authority to 
<carry on the regular business of their respective 
"Counties, receiving their regular compensation 
therefor, until the officers for said new county shall 
Iiave been elected and are qualified, as provided in 
section 4 hereof; and pending said election and the 
organization of the government of the new county, 
the several counties thus consolidated shall, for the 
purpose of carrying on their regular business, con- 
tinue to exist and to function as separate county 
governments as fully as if said consolidation had 
never been voted upon. As soon as the officers 
for said new county are elected and qualified, then 
all public offices in the separate counties thus con- 
solidated shall stand abolished and said separate 
counties shall stand dissolved and shall cease to 
exist for any and all purposes. (1933, c. 193, s. 6.) 

§ 1382(7). Powers and duties of new officers. — 

All officers elected for the new county shall be- 
come vested with all the rights, powers, duties, 
and functions which pertained to their respective 
offices in any one of the counties thus consoli- 
dated. It shall be the duty of all public officers 
theretofore serving in each of said counties forth- 
with to surrender and turn over to the correspond- 
ing officers of the new county all books, records, 
funds, and other property held by them in their 
respective offices. Said new county shall become 
vested with title to all property of every kind and 
character, real, personal and mixed, theretofore 
belonging to each of said counties and shall have 
full power to collect and disburse any and all 
taxes, penalties, and other charges which had been 
assessed by or had become due to said counties 
prior to such consolidation. (1933, c. 193, s. 7.) 

§ 1382(8). Transfer of books, records, etc. — All 

records, papers, files, funds, and the like held by 



the clerks of courts in any of said coimiies shall 
forthwith be turned over to corresponding officials 
in the new county, who shall docket all suits and 
proceedings in order that the same may be car- 
ried on under the regular legal procedure. Wher- 
ever counties thus consolidated lie in different 
judicial districts, the new county thus established 
shall become a part of that judicial district in 
which the larger portion of its territory lies. 
(1933, c. 193, s. 8.) 

§ 1382(9). Liability for bonded indebtedness.— 

Any such new county thus established shall be lia- 
ble for all of the bonded and other indebtedness 
of the separate counties so consolidated, and any 
and all rights which might have been enforced 
against any of said counties may be enforced 
against said new county as fully as though the 
proceeding were against the county originally 
liable. (1933, c. 193, s. 9.) 

§ 1382(10). Justices of the peace and constables. 

— All justices of the peace and constables holding 
office at the time of such consolidation shall con- 
tinue to serve as such in and for the new county 
thus established until the expiration of the terms 
for which they were elected or appointed, at which 
time, justices of the peace and constables may be 
elected and appointed for said new county in the 
manner now provided by law. Such consolidation 
shall in no wise effect the validity of any proceed- 
ing pending in the court of any justice of the peace 
in said counties. (1933, c. 193, s. 10.) 

§ 1382(11). Representation in general as- 
sembly. — In the event such consolidation be thus 
effected, the consolidated county thereafter shall 
be entitled to the same representation in the house 
of representatives theretofore had by the several 
counties so consolidated until the next re-appor- 
tionment of the membership of the house of repre- 
sentatives by the general assembly. Nor shall 
such consolidation affect the existing lines of state 
senatorial or congressional districts or the repre- 
sentation therein. (1933, c. 193, s. 10^.) 

§ 1382(12). Merging of one contiguous county 
with another authorized. — Wherever two counties 
are contiguous, and it is their mutual desire that 
one of said counties shall be annexed to and 
merged in the other, such annexation may be ef- 
fected in the manner herein prescribed. The gov- 
erning body of each of said counties shall adopt 
a uniform resolution setting forth the willingness 
of one of said counties to become annexed to and 
merged in the other pursuant to the authority of 
this act. Said resolution shall also call for a spe- 
cial election to be held on a specified date which 
shall be the same in both counties but not less 
than sixty nor more than ninety days from the 
last date on which said resolution was adopted 
in either of said counties. The governing body 
of each of said counties shall cause said resolu- 
tion to be printed in some newspaper published 
therein once a week for a period of six weeks 
prior to the date of said election. (1933, c. 194, 
s. 1.) 

§ 1382(13). Election laws applicable. — The 

election thus called shall be held in each of said 
counties and shall be conducted pursuant to the 
general election laws governing elections for mem- 



§ 1382(14) 



COUNTIES AND COUNTY COMMISSIONERS 



§ 1382(17) 



bers of the general assembly. The registration 
books shall be kept open in each of said counties 
for a period of twenty consecutive days prior to 
said election, and notice of such registration shall 
be advertised and registrars appointed, in the man- 
ner now prescribed by law governing elections for 
members of the general assembly. Citizens of said 
counties who are registered and are otherwise 
qualified to vote shall be entitled to vote in said 
election in their respective counties for the pur- 
pose of determining whether it is the will of such 
voters that the proposed annexation be effected. 
For use in said election the county board of elec- 
tions in each of said counties shall cause to be 
printed and provided at each polling place a suffi- 
cient number of ballots on which shall be printed 
the following: 

□ For Annexation 

□ Against Annexation 

Place a cross (x) mark in the square pre- 
ceding the proposition for which you desire 
to vote. 

All such ballots shall have printed on the back 
thereof the facsimile of the signatures of the 
members of the county board of elections of the 
county in which they are being used, and none 
other than such official ballots shall be valid for 
use in said election. As soon as practicable the 
county board of elections in each of said counties 
shall certify the results of said election to the gov- 
erning body of both counties, and thereupon, the 
governing body of each county shall cause the re- 
sults of the said election in both counties to be 
spread of record upon their respective minutes. 
If it appear that a majority of those voting in each 
of said counties voted in favor of the proposed 
annexation, then said annexation shall be declared 
to be in effect. If it appear that a majority of 
those voting in either of said counties voted 
against the proposed annexation, then said an- 
nexation shall be declared to have failed for all 
purposes. (1933, c. 194, s. 3.) 

§ 1382(14). Dissolution of county merged. — 

In the event such annexation shall be voted upon 
favorably in each of said counties, then the county 
which was voted to be annexed to the other shall 
thereupon stand dissolved and abolished, and its 
territory thereby shall be transferred to and for 
all purposes shall become a part of the annexing 
county, and townships of the annexed county shall 
be deemed townships of the annexing county un- 
til thereafter altered in the manner prescribed by 
law. (1933. c. 194, s. 3.) 

§ 1382(15). Abolition of ofHces in merged 
county; transfer of books, records, etc. — In the 

event such annexation be thus effected, all public 
offices except those of justice of the peace and con- 
stable, in the county so annexed, shall stand 
abolished, and it shall be the duty of those who 
held such offices before annexation to turn over 
to the corresponding officers of the annexing 
county all books, records, funds, and other prop- 
erty theretofore held by them in their official ca- 
pacity, and said corresponding officers of the an- 
nexing county shall be vested with all the rights 
of said offices thus abolished, and shall be en- 
titled to the custody and control of all books, rec- 

[5 



ords, funds, and other property formerly held by 
the incumbents of such abolished offices. (1933, 
c. 194, s. 4.) 

§ 1382(16). Court records transferred; justices 
of the peace and constables hold over. — In the 

event such annexation be thus effected, all rec- 
ords, papers, files, funds, and the like held by 
clerks of courts in the annexed county shall forth- 
with be turned over to corresponding clerks in 
the annexing county, who shall docket all suits 
and proceedings in order that the same may be 
carried on under the regular legal procedure. All 
justices of the peace and constables holding office 
in the annexed county at the time of such annexa- 
tion shall continue to serve as justices of the peace 
and constables of the annexing county in and for 
the new township, until the expiration of the terms 
for which they were elected or appointed, in as full 
a measure as if such annexation had not occurred, 
and the validity of proceedings pending before 
such justices of the peace at the time of annexa- 
tion shall in no wise be affected thereby. Upon 
the expiration of their terms, justices of the peace 
and constables shall be elected or appointed in 
such annexed territory in the manner prescribed 
by law. ■ Any other officers provided by the gen- 
eral law for a township shall be elected in the 
new territory at the next general election follow- 
ing such annexation. (1933, c. 194, s. 5.) 

§ 1382(17). Rights of annexing county. — In the 

event such annexation be thus effected, the an- 
nexing county shall forthwith: 

(a) Become vested with title to all property of 
every kind and character, real, personal and mixed, 
theretofore belonging to the annexed county, and 
shall have full power to collect and disburse any 
and all taxes, penalties and other charges which 
had been assessed by or had become due to the 
annexed county prior to such annexation. Said 
annexing county shall also be liable for all bonded 
and other indebtedness of the annexed county, 
and any and all rights which might have been en- 
forced against said annexed county may be en- 
forced against the annexing county as fully as 
though the proceeding had been against the county 
thus annexed; 

(b) Said annexing county shall treat said an- 
nexed county as a township or division of said 
annexing county, and said annexing county shall 
forthwith be vested with title to all property of 
every kind and character, real, personal and mixed, 
belonging to said annexed county, and have full 
power to collect any and all taxes, penalties and 
other charges which have been assessed by or be- 
come due to the annexed county prior to the an- 
nexation, and shall disburse the same for the pay- 
ment of obligations of said annexed county; and 
the bonded indebtedness of said annexed county 
shall be a charge only on the property of the town- 
ship or division of said annexing county which 
was comprised in the annexed county, and taxes 
for the payment of same shall be levied only on 
property within said township or division. And 
the property in said township or division constitut- 
ing the property in the annexed county shall not 
be liable for any of the bonded or other indebted- 
ness of the county annexing it, existing prior to 

5] 



§ 1382(18) 



COURTS— SUPREME COURT 



§ 1410 



said annexation, and no taxes shall be levied on 
the property of said township for the payment of 
same. (1933, c. 194, s. G.) 

§ 1382(18). Plan of government. — At the time 
of entering the resolutions as set out in section 
1382(13), the counties in said resolution shall spe- 
cifically provide whether plan A or plan B, as set 
out in section 1382(17) shall govern the two coun- 
ties as to the bonded indebtedness. (1933, c. 194, 
S. 7.) 

§ 1382(19). Membership in general assembly. — 

In the event such annexation be thus effected, the 
annexing county thereafter shall be entitled to the 
same representation in the house of representatives 
theretofore had by the annexed and annexing 
counties until the next reapportionment of the 
membership of the house of representatives by 
the general assembly. Nor shall such annexa- 
tion affect the existing lines of state senatorial 
or congressional districts or the representation 
therein. (1933, c. 194, s. 7^.) 

§ 1382(20). Joint administrative functions of 
contiguous counties. — Any two or more counties 
which are contiguous or which lie in a continuous 
boundary are authorized, whenever it is deemed 
for their best interests, to enter into written agree- 
ments for the joint performance of any and all 
similar administrative functions and activities of 
their local governments through consolidated 
agencies, or by means of institutions or buildings 
jointly constructed, owned and operated. 

Such written agreement shall set forth what 
functions or activities of local government shall 
thus be jointly carried on, and shall specify defi- 
nitely the manner in which the expenses thereof 
shall be apportioned and how any fees or revenue 
derived therefrom shall be apportioned. Upon 
such agreement being ratified by the governing 
todies of the counties subscribing thereto, it shall 
be spread upon their respective minutes. 

Whenever any such agreement has been en- 
tered into, then the consolidated agency or in- 
stitution set up to function jointly for the counties 
which are parties thereto, shall be vested with all 
the powers, rights, duties and functions thereto- 
fore existing by law in the separate agencies so 
consolidated. 

No such agreement shall be entered into for a 
period of more than two years from the date 
thereof, but such agreements may be renewed for 
a period not exceeding two years at any one time. 

In the same manner and subject to the same pro- 
visions as herein set out, any municipality may 
enter into such an agreement with the county in 
which it is situated, or may join with other mu- 
nicipalities in the same county in making such 
an agreement with said county, to the end that 
the functions of local government may, as far as 
practicable, be consolidated, provided this section 
shall not apply to Guilford county or the munici- 
palities in said county. 

It is the purpose of this section to bring about 
efficiency and economy in local government 
through a consolidation of administrative agencies 
thereof, and to effectuate this purpose this section 
shall be liberally construed. (1933, c. 195, s. 1.) 



CHAPTER 26 

COUNTY TREASURER 

§ 1389. Local: Commissioners may abolish of- 
fice and appoint bank. — In the counties of Bladen, 
Carteret, Chatham, Cherokee, Chowan, Craven, 
Edgecombe, Granville, Hyde, Madison, Mitchell, 
Montgomery, Martin, Moore, Onslow, Perqui- 
mans, Polk, Rowan, Stanly, Tyrrell, Transylvania, 
and Union, the board of county commissioners is 
hereby authorized and empowered, in its discre- 
tion, to abolish the office of county treasurer in 
the county; but the board shall, before abolishing 
the office of treasurer, pass a resolution to that 
effect at least sixty days before any primary or 
convention is held for the purpose of nominating 
county treasurer. When the office is so abohshed, 
the board is authorized, in lieu of a county treas- 
urer, to appoint one or more solvent banks or 
trust companies located in its county as financial 
agent for the county, which bank or trust com- 
pany shall perform the duties now performed by 
the treasurer or the sheriff as ex officio treasurer 
of the county. Such bank or trust company shall 
not charge nor receive any compensation for its 
services, other than such advantages and benefit 
as may accrue from the deposit of the county 
funds in the regular course of banking, or such 
sum as may be agreed upon as compensation be- 
tween said board of county commissioners of 
Transylvania county and Chatham county and 
such bank or banks as may be designated by said 
board of county commissioners. This alternative 
shall apply only to Chatham and Transylvania 
counties: Provided, in said county of Chatham 
the county commissioners of said county shall fix 
the compensation to be allowed said bank desig- 
nated as said financial agent of said county which 
compensation shall not exceed the sum of five 
hundred dollars per annum and said bank is to 
furnish, without cost to the county, a good and 
sufficient bond as such financial agent. 

The bank or trust company, appointed and act- 
ing as the financial agent of its county, shall be 
appointed for a term of two years, and shall be re- 
quired to execute the same bonds for the safe 
keeping and proper accounting of such funds as 
may come into its possession and belonging to 
such county and for the faithful discharge of its 
duties, as are now required by law of county treas- 
urers. (1913, c. 142; Ex. Sess. 1913, c. 35; P. L. 
1915, cc. 67, 268, 458, 481; 1919, c. 48; 1925, c. 46; 
1933, c. 63.) 

Editor's Note.— Public I^aws 1933, c. 63, makes the alter- 
native applicable in Chatham County and inserts the provi- 
so relative to that county. Section 2 of c. 63 validates the 
acts of the Bank of Pittsboro as financial agent for the- 
County of Chatham. 



CHAPTER 27 

COURTS 

SUBCHAPTER I. SUPREME COURT 
Art. 2. Jurisdiction 

§ 1410. Procedure to enforce claims against the 
state. 

In General. — 

The Supreme Court, as a rule, will consider only such 
claims as present serious questions of law and will not take 
the burden of passing upon those claims which involve mainly 



[56] 



§ 1412 



COURTS— SUPERIOR COURTS 



§ 1443 



issues or questions of fact, although in proper cases the 
Court may order that issues of fact be tried in the Supe- 
rior Court, as provided in this section. Cohoon v. State, 201 
N. C. 312, 314, 160 S. E. 183. 

The recommendatory or original jurisdiction of the Court 
is confined to claims in which it is supposed that an opinion 
on an important question of law would be of aid to the Gen- 
eral Assembly in determining the merits of a claim against 
the State. This ia true notwithstanding the broad provision 
of this section that any person having any claim against the 
State may commence the proceeding by filing his com- 
plaint. Id. 

The Supreme Court is given original jurisdiction to hear 
claims against the State, but its decisions are merely rec- 
ommendatory, and no process in the nature of execution shall 
issue thereon. 

The procedure thus authorized is prescribed by this section, 
but this procedure must not be construed as exceeding the 
power conferred npon the Supreme Court by the organic 
law. Id. 

§ 1412. Power to render judgment and issue ex- 
ecution. 

III. EFFECT OF DECISION. 
B. Power of Superior Court. 

Motion for New Trial. — Where the Supreme Court has af- 
firmed the judgment on an appeal in a criminal case and the 
judgment has been certified to the clerk of the Superior 
Court, under this section and § 1417, the case is in the latter 
court for the purpose of the execution of the sentence, and 
a motion for a new trial may be there entertained for di.^- 
qualification of jurors and for newly discovered evidenc-;. 
State V. Casey, 201 N. C. 620, 161 S. E. 81; State v. Cox, 
202 N. C. 378, 162 S. E. 907. 

§ 1414. Power of amendment and to require fur- 
ther testimony. 

III. PARTIES. 
Personal Representative. — Where a claim under the Work- 
men's Compensation Act has been litigated in the name of 
the deceased it is not permissible under this section for the 
personal representative of the deceased, hereafter to hi ap- 
pointed, to come in and make himself a party to the proceed- 
ing in the Supreme Court. Hunt v. State, 201 N. C. 37, 39, 
158 S. E. 703. 

§ 1416. Opinions and judgments to be in writ- 
ing. 

Discretion of Court. — 

A judgment may be affirmed without extended opinion. 
Rogen v. Luff, 202 N. C. 819, 161 S. E. 924. 

Applied, opinion deemed necessary, in Wootton v. McGin- 
nis, 201 N. C. 841, 161 S. E. 926; Thrash v. Roberts, 201 N. 
C. 843, 161 S. E. 925. 

§ 1417. Certificates to superior courts; execu- 
tion for costs; penalty. 

See notes to § 1412. 

Applied in Commissioner of Banks v. Harvey, 202 N. C. 
380, 162 S. E. 894. 

SUBCHAPTER II. SUPERIOR COURTS 

Art. 4. Organization 

§ 1435(d). Governor to make appointment of 
four special judges. 

Editor's Note.— For a similar act providing for appointment 
of special judges on or before July first 1933, see Public Laws 
1933, c. 217. 

Art. 5. Jurisdiction 
§ 1437. Concurrent jurisdiction. 

Applied in State v. Everhardt, 203 N. C. 610, 166 S. E. 738. 

Art. 6. Judicial Districts and Terms of Court 

§ 1443. Terms of court. — A superior court shall 
be held by a judge thereof at the courthouse in 
each county. The twenty judicial districts of the 
state shall be composed of the counties desig- 
nated in this section, and the superior courts in 

[5 



the several counties shall be opened and held in 
each year at the times herein set forth. Each 
court shall continue in session one week, and be 
for the trial of criminal and civil cases, except as 
otherwise provided, unless the business thereof 
shall be sooner disposed of. Each county shall 
have the number of regular weeks of superior 
court as set out in this section. (1913, cc. 63, 196.) 

Eastern Division 
First District 

Pasquotank — Eighth Monday before the first 
Monday in March for the trial of civil cases 
only; third Monday before the first Monday in 
March to continue for two weeks, the first week 
for the trial of civil cases only and the second 
week for the trial of criminal cases only; second 
Monday after the first Monday in March for the 
trial of civil cases only; ninth Monday after the 
first Monday in March to continue for two weeks 
for the trial of civil cases only; thirteenth Mon- 
day after the first Monday in March for the trial 
of criminal cases only; fourteenth Monday after 
the first Monday in March to continue for two 
weeks for the trial of civil cases only; second 
Monday after the first Monday in September for 
the trial of civil cases only; fifth Monday after the 
first Monday in September to continue for two 
weeks for the trial of civil cases only; ninth Mon- 
day after the first Monday in September to con- 
tinue for two weeks, the first week for the trial of 
civil cases only and the second week for the trial 
of criminal cases only. (1913, c. 196; Ex. Sess., 
1913, c. 51; 1931, c. 105; 1923, c. 232; 1929, c. 167; 
1933, c. 129.) 

Perquimans — Seventh Monday before the first 
Monday in March, for civil cases only, for which 
term a special judge to be assigned by the gov- 
ernor; sixth Monday after the first Monday in 
March; eighth Monday after the first Monday in 
September. 1913, c. 196; Ex. Sess., 1913, c. 51; 
1931, c. 6; 1933, c. 286.) 

Chowan — Fourth Monday after the first Mon- 
day in March; first Monday after the first Mon- 
day in September; fifteenth Monday after the 
first Monday in September. (1913, c. 196; 1931, 
c. 87; 1933, c. 456.) 

Tyrrell — Seventh Monday after the first Mon- 
day in March; fourth Monday after the first Mon- 
day in September, and for this term a special 
Judge may be assigned; fourth Monday before the 
first Monday in March, for civil cases only. Up- 
on recommendation of the local bar, the board of 
commissioners for the county of Tyrrell, at their 
option, may abolish and suspend the opening and 
holding, in any year, of the term above provided 
for the week commencing on the fourth Mon- 
day before the first Monday in March, by notify- 
ing the governor and the judge scheduled to hold 
said term, at least thirty da^'s prior to the date 
for opening same, that such term of court is not 
desired. (1913, c. 196; Ex. Sess. 1913, c. 51; 1919, 
c. 128, s. 1; Ex. Sess. 1920, c. 23, s. 1; 1921, c. 83; 
Ex. Sess. 1921, c. 19; 1923, c. 124; 1927, c. 23; 
1931, c. 92; 1933, c. 126.) 

Beaufort — Seventh Monday before the first 
Monday in March for two weeks, the first week 
for criminal cases only, and the second week for 
criminal and civil cases; second Monday before 
the first Monday in March for two weeks for 

n 



§ 1443 



COURTS— SUPERIOR COURTS 



§ 1443 



civil cases only; second Monday after the first 
Monday in March for criminal cases only, no 
grand jury to be drawn for this term; fifth Mon- 
day after the first Monday in March for civil 
cases only; ninth Monday after the first Monday 
in March for two weeks for civil cases only; 
sixth Monday before the first Monday in Sep- 
tember for capital felonies and jail cases and sub- 
missions and consent judgments and decrees in 
criminal causes and for trials of civil cases; 
fourth Monday after the first Monday in Sep- 
tember to continue for two weeks for civil cases 
only; ninth Monday after the first Monday in Sep- 
tember for criminal cases and consent trials and 
decrees in civil cases; thirteenth Monday after the 
first Monday in September for civil cases only. 
(1913, c. 196; Ex. Sess. 1913, c. 51; 1919, c. 128, ss. 
3, 4; 1927, c. Ill; 1931, cc. 4, 8, 87; 1933, c. 3; c. 
456, s. 2.) 

Second District 
Nash — Fifth Monday before the first Monday 
in March; second Monday before the first Monday 
in March, to continue for two weeks; first Mon- 
day after the first Monday in March; seventh 
Monday after the first Monday in March, to con- 
tinue for two weeks; twelfth Monday after the 
first Monday in March; first Monday before the 
first Monday in September; fifth Monday after 
the first Monday in September; twelfth Monday 
after the first Monday in September, to continue 
for two weeks. (1913, c. 196; 1915, c. 63; 1919, c. 
133; Ex. Sess. 1921, c. 108; 1923, c. 237; 1924, c. 
46; 1933, c. 145.) 

Third District 
Northhampton — Fourth Monday after the first 
Monday in March; eighth Monday after the first 
Monday in September, each to continue two 
weeks; first Monday in August, the first Monday 
in September to continue for one week, for the 
trial of civil cases only and for this term of court 
the governor is hereby directed to appoint a judge 
to hold the same from among the regular or 
emergency judges; fourteenth Monday after the 
first Monday in September to continue for one 
week, for the trial of civil cases only. (1913, c. 
196; 1929, cc. 123, 244; 1933, C. 409.) 

Fourth District 
Johnston — First Monday after the first Mon- 
day in March; third Monday before the first Mon- 
daj^ in September, for criminal cases only; also 
the first Monday in March; the third Monday be- 
fore the first Monday in March; sixth Monday 
after the first Monday in March; and sixth Mon- 
day after the first Monday in September, each 
for one week for criminal and civil cases; and the 
eighth Monday before the first Monday in March, 
two weeks for civil cases; and ninth Monday 
after the first Monday in September, two weeks 
for civil cases; fourteenth Monday after the first 
Monday in September, to continue for two weeks; 
second Monday before the first Monday in March; 
seventh Monday after the first Monday in March; 
and third Monday after the first Monday in Sep- 
tember, each to continue for two weeks; and the 
last three terms for civil cases only; sixth Mon- 
day after the first Monday in March for the trial 
of criminal cases only. (1913, c. 196; 1937, c. 190; 
1929, c. 208; 1933, c. 81.) 



Sixth District 

Lenoir — Sixth Monday before the first Monday 
in March, to continue for one week, for the trial 
of criminal cases; second Monday before first 
Monday in March to continue for two weeks, for 
the trial of civil cases only; fifth Monday after 
first Monday in March for the trial of criminal 
cases or civil cases, or both, to continue for one 
week; tenth Monday after first Monday in March, 
to continue for two weeks for the trial of civil 
cases only; fourteenth Monday after first Monday 
in March, to continue for two weeks for the trial 
of civil cases only; sixteenth Monday after first 
Monday in March for the trial of criminal cases 
only; second Monday before first Monday in Sep- 
tember, to continue for one week for the trial of 
criminal or civil cases, or both; third Monday 
after first Monday in September, to continue for 
one week for trial of civil cases only; sixth Mon- 
day after first Monday in September, for the trial 
of civil or criminal cases, or both, to continue for 
one week; ninth Monday after first Monday in 
September, to continue for two weeks for the 
trial of civil cases only; fourteenth Monday after 
first Monday in September, to continue for one 
week for the trial of criminal or civil cases, or 
both, and for this term of court, the governor is 
hereby directed to appoint a judge to hold the 
same from among the regular or special judges. 
(1913, c. 196; Ex. Sess. 1913, c. 61; 1915, c. 240; 
1917, c. 13; 1931, c. 271; 1933, c. 234, s. 1.) 

Duplin — Eighth Monday before first Monday in 
March, to continue for two weeks, for the trial of 
civil cases only; fifth Monday before first Mon- 
day in March, to continue for one week, for the 
trial of criminal cases; first Monday after first 
Monday in March, to continue for two weeks, for 
the trial of civil cases only; twelfth Monday after 
first Monday in March, to continue for two weeks, 
the first week of which shall be for the trial of 
criminal cases or civil cases, or both, and the sec- 
ond week for the trial of civil cases exclusively; 
sixth Monday before the first Monday in Septem- 
ber, to continue for one week, for the trial of 
criminal cases only; first Monday before first Mon- 
day in September, to continue for two weeks, for 
the trial of civil cases only; fourth Monday after 
first Monday in September, to continue for one 
week, for the trial of criminal cases; thirteenth 
Monday after first Monday in September, to con- 
tinue for two weeks, the first week of which shall 
be for the trial of criminal or civil cases, or both, 
and the second week for trial of civil cases ex- 
clusively. 

At criminal terms of the superior court in the 
county of Duplin, uncontested divorce cases may 
be tried and the court may make any order, judg- 
ment, or decree respecting the confirmation of 
judicial sales. (1913, c. 196; Ex. Sess. 1913, c. 
53; 1915, c. 240; Ex. Sess. 1920, c. 81; Ex. Sess. 
1921, cc. 78, 79; 1931, c. 271; 1933, c. 234, s. 1.) 

Onslow — First Monday in March, to continue 
for one week, for the trial of criminal cases, or 
civil cases, or both; sixth Monday after. first Mon- 
day in March, to continue for two weeks, for the 
trial of civil cases only; seventh Monday before 
first Monday in September, to continue for one 
week, for the trial of civil cases and jail cases, in 
accordance with chapter three hundred forty-one 
of the Public Laws of one thousand nine hundred 



[58] 



§ 1443 



COURTS—SUPERIOR COURTS 



§ 1443 



thirty-one; fifth Monday after the first Monday 
in September, to continue for one week, for the 
trial of criminal and civil cases; eleventh Monday 
after the first Monday in September, to continue 
for two weeks, for the trial of civil cases. (Ex. 
Sess. 1913, c. 75; 191.5, c. 240; Ex. Sess. 1921, c. 

78, s. 1; 1927, c. 179, s. 1; 1933, c. 234, s. 1.) 
The July term of the superior court for Onslow 

County, is hereby authorized, in the discretion of 
the board of county commissioners signified by 
resolution duly adopted in apt time, to try any or 
all state cases which involve defendants or wit- 
nesses confined in jail to await trial. In the 
event such trials are ordered, by such resolution, 
the board of county commissioners shall cause to 
be drawn and summoned in the usual manner 
sufficient jurors to provide for the empaneling of 
a grand jury and to also provide for a trial jury 
or juries. (1931, c. 341.) 

Sampson — Fourth Monday before first Monday 
in March, to continue for two weeks, the first 
week of which shall be for the trial of criminal 
or civil cases, or both, and the second week for 
the trial of civil cases exclusively; third Monday 
after first Monday in March, to continue for two 
weeks, for the trial of civil cases only; eighth 
Monday after the first Monday in March, to con- 
tinue for two weeks, the first -week of which shall 
be for the trial of crir.:iiial or civil cases, or both, 
and the second week for the trial of civil cases 
exclusively; fourth Monday before the first Mon- 
day in September, to continue for two weeks, the 
first week of which shall be for the trial of crim- 
inal or civil cases, or both, and the second week 
for the trial of civil cases exclusively; first Mon- 
day after first Monday in September, to continue 
for two weeks, for the trial of civil cases only; 
seventh Monday after first Monday in September, 
to continue for two weeks, the first week of which 
shall be for the trial of civil cases or criminal 
cases, or both, and the second week for the trial 
of civil cases exclusively. (1913, c. 196; Ex. 
Sess. 1913, c. 61; 1915, c. 240; Ex. Sess. 1921, c. 

79, s. 2; 1927, c. 179, s. 1(b); 1933, c. 234, s. 1.) 
At criminal terms of superior court in the sixth 

judicial district, civil actions which do not require 
a jury may be heard by consent; and at criminal 
terms in the county of Lenoir uncontested di- 
vorce cases may be tried by the court and a jury 
in all respects as at civil terms, and any order, 
judgment or decree may be entered in a civil ac- 
tion not requiring a jury trial. (1915, c. 240, s. 
3; 1917, c. 13; 1933, c. 234, s. 2.) 

Eighth District 
Pender — Eighth Monday after the first Monday 
in September to continue two weeks for the trial 
of civil and criminal cases; third Monday after 
the first Monday in March to continue two weeks 
for the trial of civil and criminal cases; the sev- 
enth Monday before the first Monday in Septem- 
ber, to continue one week for the trial of civil and 
criminal cases. (1913, c. 196; 1921, c. 14; 1933, 
c. 153.) 

Ninth District 
Bladen — Eighth Monday before the first Mon- 
day in March for the trial of civil cases, and the 
trial of criminal cases where bills have been 
found, and cases on appeal from the recorder's 
court and courts of justices of the peace; the first 



Monday after the first Monday in March for the 
trial of criminal cases only; the eighth Monday 
after the first Monday in March for the trial of 
civil cases only; the fourth Monday before the 
first Monday in September for the trial of civil 
cases only; the second Monday after the first 
Monday in September for the trial of criminal 
cases only. Said courts to continue for one week 
unless the business is sooner disposed of, and 
grand juries to be summoned only for the March 
and September terms of court: Provided, that if 
the necessity should arise, and the county com- 
missioners of Bladen County should so determine 
and order, a grand jury may be summoned by 
said commissioners for the January terms of 
court; and such grand jury so summoned shall 
have, perform and exercise all of the powers and 
duties of regular grand juries herein provided for 
the March and September terms of court. At any 
term for the trial of criminal cases, civil cases 
may be tried by consent. (1913, c. 196; 1915, c. 
110; 1927, c. 166, s. 1; 1929, c. 27, s. 1; 1931, c. 96; 
1933, c. 77.) 

If it shall appear to the board of county com- 
missioners of Bladen County at any time before 
the jury is summoned for a term of superior 
court of Bladen County that there is not suffi- 
cient business to justify a term of such court or 
that there are no cases of sufficient importance to 
warrant the expense of a term of such court, the 
said board of commissioners are authorized to or- 
dei that the jury for such term be not summoned, 
and all cases which would come on for trial at 
such term shall be continued. In case of the con- 
tinuance of a term of sv-ierior court of Bladen 
County as herein provided the board of commis- 
sioners of Bladen County shall notify, or cause 
to be notified, the solicitor of the district, the 
judge holding the courts of the district and the 
court stenographer of their action. (1933,. c. 119.) 

Hoke — Sixth Monday before the first Monday 
in March; seventh Monday after the first Mon- 
day in March; second Monday before the first 
Monday in September, to continue for one week; 
and tenth Monday after the first Monday in Sep- 
tember. The commissioners of Hoke County, 
whenever in their discretion the best interests of 
the county demand it, shall have and are hereby 
granted the power and authority, by order, to 
abrogate, in anv vear. the holding of any one of 
the above sc! *'■ terms of court, and when said 

term is so aur^.. „ted, thirty days' notice of the 
same shall be given by said commissioners by the 
publication of same in a newspaper published in 
said county and at the court house door: Pro- 
vided, that in the event the regular term at which 
the grand jury is selected shall be the term ab- 
rogated then the grand jury shall continue to 
serve until the following term of court at which 
time a new grand jury shall be selected. (1913, 
c. 196; 1917, c. 233; Ex. Sess. 1921, c. 81; 1927, 
c. 155; 1931, c. 96; 1933, c. 333.) 

Western Division 

Eleventh District 
Surry— Seventh Monday after the first Mon- 
day in March, second Monday in July, each to 
continue for two weeks; fourth Monday before 
the first Monday in March; fourth Monday after 
the first Monday in September, to continue for 



[59] 



§ 1443 



COURTS— SUPERIOR COURTS 



§ 1443 



two weeks for the trial of criminal and civil 
causes. And there shall be a two weeks' term of 
court, beginning the first Monday in February, 
for the trial of criminal and civil causes. (1913, 
c. 196; Ex. Sess. 1913, c. 34; Ex. Sess. 1931, c. 
9; 1931, c. 351; 1933, cc. 180, 413.) 

Forsyth — The terms of superior court for For- 
syth County shall each continue for two weeks, 
beginning on Monday as follows: Eighth Mon- 
day before the first Monday of March, for the 
trial of criminal and civil cases; sixth Monday be- 
fore the first Monday of March, for the trial of 
civil cases only; fourth Monday before the first 
Monday of March, for the trial of criminal and 
civil cases; second Monday before the first Mon- 
day of March, for the trial of civil cases only; 
first Monday of March, for the trial of criminal 
and civil cases; second Monday after the first 
Monday of March, for the trial of civil cases only; 
fourth Monday after the first Monday of March, 
for the trial of criminal and civil cases; sixth 
Monday after the first Monday of March for the 
trial of civil cases only; ninth Monday after the 
first Monday in March, for the trial of criminal 
and civil cases; eleventh Monday after the first 
Monday in March, for the trial of civil cases only; 
thirteenth Monday after the first Monday of 
March, for the trial of criminal and civil cases; 
sixteenth Monday after the first Monday of 
March, for the trial of civil cases only; eighth 
Monday before the first Monday of September, 
for the trial of criminal and civil cases; first Mon- 
day before the first Monday of September, for the 
trial of criminal and civil cases; third Monday 
after the first Monday of September, for the trial 
of civil cases only; fifth Monday after the first 
Monday of September, for the trial of criminal 
and civil cases; sixth Monday after the first Mon- 
day of September, for the trial of civil cases only; 
ninth Monday after the first Monday of Septem- 
ber, for the trial of criminal and civil cases; elev- 
enth Monday after the first Monday of Septem- 
ber, for the trial of civil cases only; thirteenth 
Monday after the first Monday of September, for 
the trial of criminal and civil cases. (1913, c. 
196; 1917, c. 169; 1919, c. 87; 1933, c. 151; 1927, 
c. 197; 1939, c. 131; 1933, cc. 231, 306. P. L. 1917, 
c. 375, provides for a criminal calendar.) 

The governor shall assign an emergency or any 
other judge to hold any of the terms of the supe- 
rior court of Forsyth County when the judge 
holding courts in said district is unable to hold 
said terms. (1939, c. 131.) 

Rockingham — Sixth Monday before the first 
Monday in March, to continue for two weeks, 
for criminal cases only; tenth Monday after the 
first Monday in March; fourth Monday before 
the first Monday in September, to continue for 
two weeks, for criminal cases only; first Monday 
before the first Monday in March, to continue for 
two weeks, for civil cases only; sixth Monday 
after the first Monday in March, for civil cases 
only; fourteenth Monday after the first Monday 
in March, to continue for two weeks, for civil 
cases only; first Monday after the first Monday 
in September, to continue for two weeks, for civil 
cases only; eleventh Monday after the first Mon- 
day in September, to continue for two weeks, for 
civil cases only. 

The governor shall assign an emergency or any 

[60 



other judge to hold any of the terms of the su- 
perior court of Rockingham County when the 
judge holding courts in the eleventh district is 
unable to hold said terms. (1913, c. 196; Ex. 
Sess. 1913, c. 49; 1917, c. 107; 1933, cc. 45, 264. 
P. L. 1915, c. 60, provides for a calendar in Rock- 
ingham county.) 

Caswell — Fourth Monday after the first Mon- 
day in March; thirteenth Monday after the first 
Monday in September; ninth Monday after the 
first Monday in March for the trial of civil cases; 
sixth Monday after the first Monday in Septem- 
ber for the trial of civil cases. 

The commissioners of Caswell County, when- 
ever in their discretion the best interests of the 
county demand, may, by order, abrogate in any 
year the holding of that term of court which 
convenes on the second Monday before the first 
Monday in September; and when the term is so 
abrogated, thirty days' notice of the same shall 
be given by the commissioners by publication in 
same newspaper published in Caswell County and 
at the courthouse door and four other public 
places in the county. (1913, c. 196; 1919, c. 389; 
1937, c. 203; 1933, c. 45, s. 1.) 

Twelfth District 

Davidson — Fifth Monday before the first Mon- 
day in March, one week; ninth Monday after the 
first Monday in March, one week; sixteenth Mon- 
day after the first Monday in March, one week; 
second Monday before the first Monday in Sep- 
tember, one week, for the trial of criminal cases 
only. 

Second Monday before the first Monday in 
March, two weeks; twelfth Monday after ttit 
first Monday in March, two weeks; first Monday 
after the first Monday in September, two weeks; 
eleventh Monday after the first Monday in Sep- 
tember, two weeks mixed; for the trial of civil 
cases only. (1913, c. 196; Ex. Sess. 1913, c. 14; 
1931, c. 42; 1933, c. 169; 1933, cc. 14, 404.) 

In addition to the terms of court now provided 
by law to be held in Davidson County, the follow- 
ing terms of court shall be opened and held in 
each year in the manner and at the times herein 
set forth, to-wit: To convene on the first Mon- 
day in April of each year and to continue for 
two weeks for the trial of civil cases only. To 
convene on the first Monday in October of each 
year and to continue for two weeks for the trial 
of civil cases only. If the judge regularly as- 
signed to the district in which said county is situ- 
ate be unable because of another regular term of 
court in said district, or for other cause, to hold 
any term of court provided in section one hereof, 
the governor may appoint a judge to hold such 
term from among the regular or emergency 
judges. (1931, c. 114.) 

Thirteenth District 
Union — Fifth Monday before the first Monday 
in March, for criminal cases; third Monday after 
the first Monday in March, for civil cases; fifth 
Monday before the first Monday in September, 
for criminal cases. Sixth Monday after the first 
Monday in September, to continue for two weeks, 
the second week for civil cases only; second Mon- 
day before the first Monday in March, and second 
Monday before the first Monday in September, 
each to continue for two weeks; ninth Monday 

] 



§ 1443 



COURTS— SUPERIOR COURTS 



§ 1443 



after the first Monday in March; the last three 
terms for civil cases only. 

In the first two terms of court for Union County 
for the trial of criminal cases, if it shall appear 
to the clerk of the superior court that the crimi- 
nal docket will not be sufficient to take up the 
entire term, he may make or cause to be made a 
calendar of civil cases as is made at other terms, 
and such cases shall be tried at such term in the 
same manner as if it were a civil term. 

If it shall appear to the county commissioners 
for the county of Union, prior to the drawing of 
a jury or grand jury for any criminal term of 
court, that there is no prisoner in jail in the 
county or that the criminal docket at such term 
is not sufficient to justify the holding of the term, 
then the clerk is not to make or cause to be made 
a calendar of civil cases to be tried at said term, 
and the county commissioners, within their dis- 
cretion, may not draw a jury or grand jury for 
such term, and notice shall be given immediately 
to the judge not to hold said court. 

If it shall appear to the board of commissioners 
of Union County, thirty days before the beginning 
of the term held the third Monday after the first 
Monday in Alarch that the condition of the crim- 
inal docket, and the number of prisoners in jail, 
make it necessary that said March term should 
be used as a criminal term, then said board of 
commissioners are hereby authorized and em- 
powered within their discretion to draw a grand 
jury for said term, and to give thirty days' notice 
in some local paper that criminal cases would be 
tried at said term, and all criminal process and 
undertakings returnable to a subsequent term 
shall be returnable to said March term. (1913, c. 
196; Ex. Sess. 1913, c. 22; 1915, c. 72; 1917, cc. 
28, 117; 1921, c. 55.) 

If it shall appear to the county commissioners 
for the county of Union, prior to the drawing of 
a jury for the civil term of court to be held the 
third Monday after the first Monday in March, 
and/or the civil term to be held on the ninth Mon- 
day after the first Monday in March, that the 
condition of the civil docket does not justify 
holding said term, then the clerk shall not make, 
or cause to be made, a calendar of civil cases to 
be tried at the said term and the county com- 
missioners may not draw a jury for such term 
and notice shall be given immediately to the judge 
not to hold said court. (1933, c. 112.) 

Scotland — First Monday after the first Monday 
in March, for one week for the trial of both crim- 
inal and civil cases; eighth Monday after the first 
Monday in March for one week for the trial of 
civil cases only; thirteenth Monday after the first 
Monday in March for one week for the trial of 
criminal and civil cases; eighth Monday after the 
first Monday in September for one week for the 
trial of civil cases only; twelfth Monday after 
first Monday in September for two weeks for 
the trial of criminal and civil cases. (1913, c. 196; 
Ex. Sess. 1913, c. 22; 1917, c. 105; 1923, c. 178; 
1933, c. 116.) 

Stanly — Fourth Monday before the first Mon- 
day in March to continue for two weeks, for 
civil cases only; fourth Monday after the first 
Monday in March; tenth Monday after the first 
Monday in March, for civil cases only; eighth 
Monday before the first Monday in September; 

[61 



first Monday in September to continue for two 
weeks, for civil cases only; fifth Monday after 
the first Monday in September, for civil cases 
only; eleventh Monday after the first Monday in 
September. 

Each of the terms set for the trial of criminal 
cases shall also be the return term for such civil 
process as may be returnable at term; and for the 
hearing of motions in civil actions; and for the 
trial of civil cases requiring a jury where issues 
are drawn by consent of the parties thereto; and 
for the trial of actions for divorce and other ac- 
tions in which no answer has been filed when the 
time for filing the answer has expired. 

The governor shall assign an emergency, or any 
other judge, to hold any of the terms of the su- 
perior court for Stanly County when the judge 
regularly holding the courts in said district for 
any cause is unable to hold any of said terms. 
(1913, c. 196; 1933, c. 240.) 

Fifteenth District 

Rowan — Third Monday before the first Mon- 
day in March, to continue for two weeks; first 
Monday in March, to continue for one week, for 
civil cases only; ninth Monday after the first 
Monday in March, to continue for two weeks; 
first Monday after the first Monday in September, 
to continue for two weeks; fifth Monday after 
the first Monday in September, for civil cases 
only; eleventh Monday after the first Monday in 
September, to continue for two weeks. (1913, 
c. 196; Ex. Sess. 1913, c. 5; 1921, c. 31.) 

There shall be held in Rowan County two ad- 
ditional terms of the superior court as follows, 
to-wit: On the sixth Monday after the first Mon- 
day in September to continue for one week for 
the trial of civil cases only; on the first Monday 
after the first Monday in March to continue for 
one week for the trial of civil cases only. This act 
shall not be construed to repeal or abolish any 
terms of court now provided for the fifteenth ju- 
dicial district, but in case of conflict of any of the 
regularly established terms of the courts of the 
fifteenth judicial district with the terms above set 
out, the said terms of the court herein established 
shall be considered special terms and the governor 
may assign a special or emergency judge to hold 
said terms of superior court of Rowan County 
when the judge holding the regular terms of court 
in the district is unable to hold said terms. (1933, 
c. 274.) 

Cabarrus — Eighth Monday before the first Mon- 
day in March, to continue for two weeks, for the 
trial of criminal and civil cases; first Monday be- 
fore the first Monday in March, to continue for 
one week, for civil cases only; seventh Monday 
after the first Monday in March, to continue for 
two weeks, for criminal and civil cases; four- 
teenth Monday after the first Monday in March, 
to continue for two weeks, for civil cases onh'; 
third Monday before the first Monday in Septem- 
ber, to continue for three weeks, for criminal and 
civil cases: sixth Monday after the first Alon- 
day in September, to continue for two weeks, for 
criminal and civil cases. (1913, c. 196; 1921, c. 
121, s. 2; 1933, c. 76.) 

Sixteenth District 
Catawba — Seventh Monday before the first 
Monday in !March, to continue for two weeks and 

] 



§ 1443 



COURTS— SUPERIOR COURTS 



§ 1461 



for the trial of civil cases only, fourth Monday 
before the first Monday in March, to continue 
for two weeks; ninth Monday after the first Mon- 
day in March, to continue for two weeks, for the 
trial of civil cases only; ninth Monday before the 
first Monday in September, to continue for two 
weeks; first Monday in September, to continue 
for two weeks, for the trial of civil cases only; 
tenth Monday after the first Monday in Septem- 
ber, to continue for one week, for the trial of 
criminal cases only; thirteenth Monday after the 
first Monday in September to continue for one 
week and for the trial of civil cases only. Fifth 
Monday after the first Monday in March, to con- 
tinue for two weeks, for the trial of civil cases 
only; eleventh Monday after the first Monday in 
September, to continue for one week, for the trial 
of civil cases only: Provided, that the board of 
county commissioners may by resolution, adopted 
not less than 30 days prior to the convening of 
either of the last two courts, determine that the 
holding of such court is not necessary and cancel 
the same, in which case notice of such action 
shall immediately be given to the governor to the 
end that the judge assigned to said court may be 
relieved from such assignment. (1913, c. 196; 
Ex. Sess. 1913, c. 7; Ex. Sess. 1921, c. 47; c. 90, 
s. 1; 1923, c. 18; 1925, c. 13, ss. 1, 2; 1933, c. 311.) 
Watauga — Seventh Monday after the first Mon- 
day' in March, to continue for two weeks; second 
Monday after the first Monday in September, to 
continue for one week. (1913, c. 196; 1921, c. 
166; 1931, c. 424; 1933, c. 250, s. 2.) 

Seventeenth District 

Alexander — Second Monday before the first 
Monday in March; first Monday in September, 
to continue for two weeks. (1913, c. 196; 1921, 
c. 166; 1933, c. 250, s. 4.) 

Mitchell — Third Monday after the first Monday 
in March, two weeks; sixth Monday before the 
first Monday in September, two weeks for civil 
cases only; eighth Monday after the first Monday 
in September, each to continue for two weeks: 
Provided, that the board of commissioners of 
Mitchell County may in their discretion, at their 
regular meeting held on the first Monday in July 
in any year dispense with the second week of 
said term of court beginning the sixth Monday 
before the first Monday in September. (1913, c. 
196; 1921, c. 166; Ex. Sess. 1921, c. 33; 1927, c. 
168; 1929, c. 10; 1933, c. 250, s. 3.) 

Avery — Fifth Monday after the first Monday 
in March, for two weeks, the first week for the 
trial of criminal cases only and the last two weeks 
for civil cases only; ninth Monday before the 
first Monday in September, three weeks for civil 
cases only; sixth Monday after the first Monday 
in September, for two weeks, the first week for 
the trial of criminal cases only and the second 
week for civil cases only. (1913, c. 196; 1915, c. 
169; 1921, c. 166; Ex. Sess. 1921, c. 33; 1923, c. 
90; 1931, c. 84; 1933, cc. 152, 250, s. 1.) 

Eighteenth District 
Henderson — Seventh Monday before the first 
Monday in March, to continue for two weeks 
for the trial of civil cases only; first Monday in 
March, fifth Monday after the first Monday in 
September, each to continue for two weeks; 
eighth Monday after the first Monday in March, 

[6 



twelfth Monday after the first Monday in March, 
eleventh Monday after the first Monday in Sep- 
tember, each to continue for two weeks for the 
trial of civil cases only. (1913, c. 196; 1917, c. 
115; 1919, c. 162; Ex. Sess. 1921, c. 24; 1923, c. 
204; 1927, c. 207, s. 1; 1933, c. 117.) 

Rutherford — Tenth Monday after the first Mon- 
day in March, ninth Monday after the first Mon- 
day in September, each to continue for two 
weeks; sixth Monday after the first Monday in 
March, third Monday after the first Monday in 
September each to continue for two weeks for 
the trial of civil cases only. (1913, c. 196; 1915, 
c. 116; Ex. Sess. 1921, c. 24; 1927, c. 207, s. 1; 
1933, c. 232, s. 1.) 

Yancey — Second Monday after the first Mon- 
day in March, seventh Monday after the first 
Monday in September to continue for two weeks; 
third Monday after the first Monday in Septem- 
ber to continue for two weeks for the trial of 
civil cases only; fifth Monday after the first Mon- 
day in March to continue for one week for the 
trial of civil cases only, that the board of commis- 
sioners of Yancey County may in the exercise of 
its discretion dispense with this term of court. 
(1913, c. 196; Ex. Sess. 1913, c. 38; 1915, c. 71; 
Ex. Sess. 1920, c. 4; Ex. Sess. 1921, c. 24; 1923, 
c. 222; 1927, c. 207, s. 1; 1929, c. 173.) 

The regular October term of the superior court 
of Yancey County shall be for trial of civil cases 
only, and the January term shall be a mixed term 
for civil and criminal cases. This act shall be in 
force and effect from first day of March, one 
thousand nine hundred thirty-four. (1933, c. 478.) 

Polk — Fourth Monday before the first Monday 
in March, first Monday before the first Monday 
in September, each to continue for two weeks. 
(1913, c. 196; Ex. Sess. 1921, c. 24; 1927, c. 207, 
s. 1; 1933, c. 232, s. 2.) 

Twentieth District 
Swain — Seventh Monday before the first Mon- 
day in March, for the trial of civil cases only, to 
continue for two weeks; a special judge to be as- 
signed for this court; first Monday in March; 
sixth Monday before the first Monday in Sep- 
tember; seventh Monday after the first Monday 
in September, each to continue for two weeks: 
Provided, that the board of commissioners of 
Swain County may, when the public interest re- 
quires it, decline to draw a grand jury for the 
July term. (1913, c. 196; 1933, c. 125.) 

Jackson — Second Monday before the first Mon- 
day in March; eleventh Monday after the first 
Monday in March; fifth Monday after the first 
A'fonday in September, each to continue for two 
weeks. (1913, c. 196; 1933, c. 107.) 

Editor's Note. — 

Only the parts of this section relating to the counties af- 
fected by the Public Laws of 1933 are here set out. If the 
county does not appear in the above presentation the terms 
are the same as those shown in the North Carolina Co<le of 
1931. 

Art. 8. Special Regulations 

§ 1461. Court stenographers. — Upon the re- 
quest of a judge holding a superior court in any 
county in the state, the board of county commis- 
sioners in such county shall employ a competent 
stenographer to take down the proceedings of 
the court, at a compensation not to exceed five 
dollars per day and actual expenses, to be paid 



§ 1461 (5) a 



OOURTS— SUPERIOR COURTS 



§ 1461(5)f 



by the county in which the court is held: Pro- 
vided, that the compensation of said stenogra- 
phers in counties composing the sixteenth judi- 
cial district shall not exceed ten dollars per day. 

The judge is authorized to tax a reasonable fee 
against the losing party in every action, civil and 
criminal, to be turned into the county treasury 
towards reimbursing the county, but no fee shall 
be taxed against a losing party suing in forma 
pauperis. 

Every stenographer so employed shall make 
three copies of the proceedings in every case ap- 
pealed to the supreme court, without extra charge, 
and shall furnish one copy to the attorneys on 
each side and file one copy with the clerk of the 
superior court of the county in which any such 
case is tried, and shall obey all orders of the 
judge relative to the time in which any such work 
shall be done; Provided, that the restrictions 
herein against an extra charge for making copies 
of the proceedings in cases appealed to the su- 
preme court shall not apply to counties compos- 
ing the sixteenth judicial district, except Burke, 
Lincoln and Catawba counties: Provided, that in 
the counties of Burke, Lincoln and Catawba the 
court stenographer shall make three copies of the 
proceedings in every case appealed to the supreme 
court at a charge of not more than fifteen cents 
per page for the original copy, which shall be 
paid by the appellant, and one copy shall be fur- 
nished to the clerk of the superior court and one 
copy to the appellee, without extra charge, and 
the original to the appellant. (1929, cc. 53, 260, 
s. 1.) 

Every stenographer so employed shall, before 
entering upon the discharge of his duties, be 
duly sworn to well, truly and correctly take down 
and transcribe the proceedings of the court, ex- 
cept the argument of counsel, and the charge of 
the court thus taken down and transcribed shall 
be held to be a compliance with the law requiring 
the judge to put his instructions to the jury in 
writing. 

This section shall not apply to any county 
which has a court stenographer authorized by 
law: Provided, that the board of county com- 
missioners of Mecklenburg county may, by reso- 
lution approving this law, bring said county 
within the provisions of the same: Provided fur- 
ther, that this law shall not apply to the following 
counties: Alleghany, Brunswick, Caldwell, Cam- 
den, Carteret, Caswell, Chatham, Currituck, Dare, 
Davidson, Davie, Forsyth, Greene, Harnett, Hay- 
wood, Hoke, New Hanover, Orange, Pender, 
Perquimans, Person, Transylvania, Union, Wa- 
tauga. (Ex. Sess. 1913, c. 69; Ex. Sess. 1921, c. 
57. Alamance county: See Public Laws, Ex. 
Sess. 1921, c. 2; 1927, c. 268; 1933, c. 75, s. 2.) 

The compensation of each stenographer so em- 
ployed shall be not exceeding ten dollars per day 
and two and one-half dollars per day expenses, 
and there shall be taxed in each case as provided 
in section one thousand, four hundred and sixty- 
one a reasonable fee, against the losing party in 
every action, civil and criminal, to be turned in to 
the county treasury toward reimbursing the 
county which fee shall be fixed by the judge pre- 
siding and taxed in each case at such amount as 
said judge may determine taking into considera- 
tion the time required in the trial of a cause: 



Provided, no tax or fee shall be charged against 
the State, in any criminal action nor against the 
losing party in a suit brought in forma pauperis. 
(1927, c. 268, s. 2.) 
Editor's Note. — 

Public Laws 1933, c. 75 inserted Harnett County in the list 
of counties appearing in the next to the last jiaragraph. For 
an amendment of this section applicable in McDowell County 
only, see Acts of 1933, c. 85. 

§ 1461 (5)a. Court reporter for second judicial 
district. — The resident judge of the second judicial 
district be, and he is hereby authorized and em- 
powered, to appoint an official court reporter for 
one or more or all of the counties in said dis- 
trict who shall serve at the will of the resident 
judge, and whose appointment may be terminated 
by thirty days' written notice thereof. (1933, c. 
335, s. 1.) 

§ 1461 (5)b. Recording of appointment in clerk's 
office. — The appointment of such reporter or re- 
porters shall be filed in the office of the clerk 
of the superior court of each county in said dis- 
trict in which said reporter is to officiate, and the 
same, or a certified copy thereof, shall be re- 
corded by said clerk on the minute docket of his 
court. (1933, c. 335, s. 2.) 

§ 1461 (5)c. Oath of reporter. — Before entering 
upon the discharge of the duties of said office, said 
reporter shall take and subscribe an oath in words 
substantially as follows: 'T, , do sol- 
emnly swear that I will, to the best of my abil- 
ity, discharge the duties of the office of court 

reporter in and for the county of 

in the second judicial district, and will faithfully 
transcribe the testimony offered in said courts as 
the presiding judge may direct, or as I may be 
required to do under the law, so help me, God." 
Said oath shall be filed in the office of each of the 
clerks of the superior courts of the counties in 
which said reporter is to officiate, and recorded 
and indexed on the minute dockets of said courts. 
(1933, c. 335, s. 3.) 

§ 1461 (5)d. Reporter pro tern. — If on account 
of sickness, or for other cause, said reporter is 
unable to attend upon any of the regular courts 
of said district, and for conflict and special terms, 
the resident judge may appoint a reporter pro tern 
for said court or courts, and said appointment 
shall appear upon the minutes of said term, and 
said reporter shall take and subscribe the oath 
referred to in section 3 hereof, which oath shall 
be filed with the clerk. In lieu of appointing a 
reporter pro tem for each of said courts, the 
resident judge may, in his discretion, appoint a re- 
porter pro tem for a stated period whose duty it 
shall be to report any and all courts in the county 
or counties designated in the appointment, which 
the regular court reporter is for any cause una- 
ble to report. (1933, c. 335, s. 4.) 

§ 1461 (5)e. Compensation. — The resident judge 
shall likewise fix the compensation to be received 
by such reporter and such reporter pro tem: Pro- 
vided, however, such compensation shall not ex- 
ceed ten dollars per day and actual expenses upon 
a weekly basis. (1933, c. 335, s. 5.) 

§ 1461 (5)f. Transcripts competent as evidence. 

— The testimony taken and transcril)ed by said 
court reporter or said court reporter pro tem, as 



[ 63 



§ 1481 



COURTS— RECORDERS' COURTS 



§ 1590 



the case may be, and duly certified, either by said 
reporter or the presiding judge at the trial of the 
cause, may be offered in evidence in any of the 
courts of this state as the deposition of the wit- 
ness whose testimony is so taken and transcribed, 
in the same manner, and under the same rule 
governing the introduction of depositions in civil 
actions. (1933, c. 335, s. 6.) 

SUBCHAPTER III. JUSTICES OF THE 
PEACE 

Art. 10. Jurisdiction 

§ 1481, Jurisdiction in criminal actions. 

Simple AssaiJt. — 

Under this section a magistrate has original jurisdiction of 
simple assault and en appeal from an acquittal a plea of 
former jeopardy is good. State v. Myrick, 202 N. C. 688, 163 
S. E. S03. 

Art. 13. Pleading and Practice 
§ 1498. Removal of case. 

Editor's Note. — For a proviso applicable in Mecklenburg 
County only, see Public Laws 1933, c. 278. 

Art. 15. Judgment and Execution 

§ 1526. Nature of undertaking. — The under- 
taking shall be in writing, executed by one or 
more sufficient sureties, to be approved by the 
justice or clerk making the order, to the effect 
that if judgment be rendered against the appel- 
lant, the sureties will pay the amount together 
with all costs awarded against the appellant, and 
when judgment shall be rendered against the ap- 
pellant, the appellate court shall give judgment 
against the said sureties. And in the event that 
said defendant shall prior to entry of the final 
judgment be adjudicated a bankrupt, then and in 
that event, the surety or sureties on said bond 
shall remain bound as if they were co-debtors 
with the defendant and the plaintiff may continue 
the prosecution of the action against said sure- 
ties, as if they were co-defendants in the cause. 
(Rev., s. 1487; Code, s. 884; 1879, c. 68; 1933, c. 
251, s. 1.) 

Editor's Note. — By Public Laws 1933. c. 251, was added 
the sentence, appearing at the end of this section, which 
provides for liability of sureties in case defendant is adjudi- 
cated a bankrupt. 

Art. 16. Appeal 
§ 1530. Manner of taking appeal. 

Time. — 

From the decision of a Justice of the Peace in a bastardy 
proceeding either the woman or the defendant may appeal 
to the Superior Court, but the appeal must be taken to the 
next term. The Superior Court has no right to dispense with 
this requirement. Helsabeck v. Grubbs. 171 N. C. 377. 88 
S. E. 473. The "next term" means any term, civil or crim- 
inal, which begins after the expiration of the ten days al- 
lowed for serving the notice of appeal. State v. Fleming, 
2(M N. C. 40, 42, 167 S. E. 483. 

SUBCHAPTER IV. RECORDERS' 
COURTS 

Art. 18. Municipal Recorders' Courts 
§ 1555. Jury trial, as in justice's court. 

Editor's Note.— 

Public Laws 1933, c. 142, repeals Public Laws 1931, c. 335. 



Art. 19. County Recorders' Courts 
§ 1569. Removal of cases from justices' courts. 

Editor's Note. — 

Public Laws 1933, c. 277, makes the removal mandatory 
but applies only in Mecklenburg County. 

§ 1572. Jury trial as in municipal court. — In 

all trials in county recorders' courts, upon de- 
mand for a jury by the defendant or the prose- 
cuting attorney representing the stiate, a jury 
shall be had in the same manner and under the 
same provisions as are set forth in this subchap- 
ter in reference to municipal courts, so far as the 
same may be practically applicable to a county 
court: Provided, that this section shall not apply 
to Henderson County. (1919, c. 277, s. 40; 1933, 
c. 316.) 

Editor's Note. — 

Public Laws of 1933, c. 316, added the proviso exempting 
Henderson county from the operation of the section and 
providing for jury trials in said county. See § 1572(b). 

§ 1572(b). Jury trials in Henderson County 
recorder's court. — Jury trials may be had in the 

county court of Henderson County upon demand 
of any defendant and upon depositing the sum of 
six ($6.00) dollars to cover jury fees; and the jury 
shall consist of six men who shall receive one 
($1.00) dollar each for their services in each case. 
Upon demand of any defendant for a jury trial, 
and depositing the sum required, the jury shall be 
summoned in the same manner as provided by 
juries in the courts of justices of the peace. (1933, 
c. 316, s. 2.) 

Art. 22. Civil Jurisdiction of Recorders' 
Courts 

§ 1589. Civil jurisdiction may be conferred. — 

The board of county commissioners of any county 
in which there is a city or town with a population 
of not less than ten thousand inhabitants, in 
which there has been established a recorder's 
court, under the provisions of this subchapter, or 
in which there is a recorder's court established 
by law, may confer upon such recorder's court 
jurisdiction to try and determine civil actions, as 
hereinafter provided, wherein the party plaintiff 
or defendant is a resident of such county, or is 
doing business in the county. Such jurisdiction 
may be conferred by resolution by the board of 
county commissioners of any county, entered 
upon their minutes, and the board of county 
commissioners of any county may likewise con- 
fer civil jurisdiction on the county recorder's 
court to try and determine civil actions as here- 
inafter provided wherein one or more of the 
parties, plaintiff or defendant, is a resident of 
said county or is doing business therein. (1919, 
c. 277, s. 47; 1921, c. 110, s. 7; 1933, c. 166.) 

Editor's Note.— Prior to the Amendment of 1933, Public 
Laws 1933, c. 166, this section applied in cities or towns of 
not less than 10,000 "nor more than 25,000" inhabitants. The 
quoted clause was omitted by the amendment. For act 
applicable in Carteret County only, see P. L. 1933, c. 379. 

§ 1590. Extent of jurisdiction. 

Editor's Note.— Public Laws 1933, c. 174 increased the ju- 
ris.dictional amounts here specified from one to three thou- 
sand and from five hundred to two thousand dollars respec- 
tively, but the act applies only in Mecklenburg county. 

For act applicable in Carteret County only, see P. L. 1933, 
c. 379. 



64 



§ 1591 



COURTS— GENERAL COUNTY COURT 



§ 1608(0 



§ 1591. Procedure in civil actions. 

Editor's Note.— 

For act applicable in Carteret County only, see P. l^. 1933, 
c. 379. 

§ 1592. Trial by jury in civil actions. 

Editor's Note. — Public Laws 1933, c. 142, repeals Public 
Laws 1931, c. 335. 

Art. 23. Elections to Establish Recorders' 
Courts 

§ 1608. Certain districts and counties not in- 
cluded. — This subchapter shall not apply to the 
tenth, except as Granville and Orange counties, 
[fifteenth], except as to Iredell and Montgomery 
counties, [sixteenth], except as to Lincoln and 
Catawba counties, seventeenth, except as to Al- 
exander county, eighteenth, nineteenth, and twen- 
tieth judicial districts, except as to Buncombe, 
Cherokee, Jackson, Haywood, and Swain coun- 
ties, nor to the eleventh district, except to the 
county of Caswell; nor shall it apply to the 
counties of Chatham, Columbus, Hyde, Johnston, 
New Hanover, Polk, Madison, and Robeson. 
(1919, c. 277, s. 64; 1921, c. 110, s. 16; Ex. Sess. 
1921, cc. 59, 80; 1923, cc. 19, 40; 1925, c. 162, s. 1; 
Pub. Loc. 1927, c. 85, s. 24; 1929, cc. 17, 111, 114, 
130, 340; 1931, c. 3, c. 19, s. 2; 1933, c. 142, s. 1.) 

Editor's Note. — 

By Public I.aws 1933, c. 142, Burke county was omitted 
from the exceptions as to the sixteenth district. Public 
Laws 1933, c. 142, s. 1, repealed Public Laws 1929, c. V which 
added Burke to this section. 

SUBCHAPTER V. GENERAL COUNTY 
COURTS 

Art. 24. Establishment, Organization and 
Jurisdiction 

§ 1608(f). Establishment authorized; official 
entitlement; jurisdiction. — In each county of this 
state there may be established a court of civil 
and criminal jurisdiction, which shall be a court 
of record and which shall be maintained pur- 
suant to this subchapter and which court shall 
be called the general county court and shall have 
jurisdiction over the entire county in which said 
court may be established. In any county in the 
state in which there is situated a city which has 
or may have in the future a population, accord- 
ing to any enumeration by the United States 
census bureau, of more than twenty thousand 
inhabitants, the commissioners of such county or 
counties are authorized hereby to establish gen- 
eral county courts as hereinafter provided with- 
out first submitting the question of establishing 
such court to a vote of the people: Provided, 
that the said enumeration need not be made at 
a regular decennial census: Provided further, that 
in the event that the second sentence of this 
section is acted upon by the commissioners of 
any county in establishing a general county court, 
as is herein provided, the said commissioners 
may make such provisions for holding such courts 
in such city. (1923, c. 216, s. 1; 1925, c. 242; 
1927, c. 74; 1931, c. 17; 1933, c. 405.) 

Editor's Note.— Prior to the 1933 amendment (Public Laws 
1933, c. 405) Caswell county was excepted from the opera- 
tion of the section. The amendment struck out the words 
"except Caswell County" following the words "in each 
county of this state" at the beginning of the section. Public 
Laws 1933, c. 142, repealed Public Laws 1931, c. 422. 

In General. — Under this section the Legislature may create 

N. C. Supp.— 5 [ 6 



courts inferior to Superior Court if provision is made for 
appeal to the Superior Court. Jones v. Standard Oil Co., 
202 N. C. 328, 162 S. E. 741. 

§ 1608(f) 3(c): Repealed by Public Laws 
1933, c. 40.5. 

§ 1608(f) 4. Transfer of civil cases. — Trans- 
fers may be made in term of any civil action in 
the superior court to the general county court, 
and from the general county court to the superior 
court by the presiding judge of said respective 
courts, by consent, or upon motion of which due 
notice has been given, when, in the opinion of 
the presiding judge of the court from which the 
transfer is to be made, the ends of justice will 
be best served and promoted by such transfer. 
(1924, c. 85, S. 24-d; 1933, C. 127.) 

Editor's Note. — This section wasr rewritten by Public Laws 
1933, c. 127. Many changes were effected for a determina- 
tion of which a comparison with the old section is necessary. 

Art. 25. Practice and Procedure 

§ 1608 (t). Procedure in civil actions; return of 
process. — The rules of procedure, issuing proc- 
ess and filing pleadings shall conform as nearly 
as may be to the practice in the superior courts. 
The process shall be returnable directly to the 
court, and may issue out of the court to any 
county in the state: Provided, that civil process 
in cases within the jurisdiction now exercised by 
justices of the peace shall not run outside of or 
beyond the county in which such court sits. 

Motions for the change of venue or removal 
of cases from the general county courts to the 
superior courts of counties other than the one 
in which said court sits may be made and acted 
upon, and the causes for removal shall be the 
same as prescribed by law for similar motions in 
the superior courts. 

The provisions of the chapters of the consoli- 
dated statutes on civil procedure and criminal pro- 
cedure, and all amendments thereof, shall apply 
as nearly as may be to the general county courts, 
and the judges and the clerks of said courts, in 
all causes pending in said courts, shall have 
rights, privileges, powers and immunities similar 
in all respects to those conferred by law on the 
judges and clerks of the superior courts of the 
state, and shall be subject to similar duties and 
liabilities: Provided, that this section shall not 
extend the jurisdiction of said judges and clerks, 
nor infringe in any manner upon the jurisdiction 
of the superior courts, except as provided in ar- 
ticles twenty-four and twenty-five of this chap- 
ter: Provided, that in any civil action instituted 
in said general county court, where one or more 
bona fide defendants reside in said county and 
one or more bona fide defendants reside out of 
said county, then in such case summons may be 
issued out of said general county court against 
the defendants residing outside of said county 
as well as those residing in said county, and the 
said general county court shall have jurisdiction 
to try the action as against all of said defendants. 

All motions and petitions for removal of ac- 
tions from the general county court to the dis- 
trict court of the United States shall be presented 
to, be heard and determined by the judge of the 
general county court, with the right of appeal 
from any order or ruling of said judge to the 



§ 1608(cc) 



DIVORCE AND ALIMONY 



§ 1659 



superior court. (1923, c. 216, s. 7; 1925, c. 243, 
s. 2; 1925, c. 250, s. 2; 1933, c. 128, s. 1.) 
Editor's Note. — 

The last sentence of this section as it now reads, relating 
to removal from a General Court to the United States District 
Court, was added by Public I^aws 1933, c. 128. 

§ 1608 (cc). Appeals to superior court in civil 
actions; time; record; judgment; appeal to su- 
preme court. — Appeals in civil actions may be 
taken from the general county court to the su- 
perior court of the county in term time for er- 
rors assigned in matters of law in the same 
manner as is now provided for appeals from the 
superior court to the supreme court except that 
appellant shall file in duplicate statement of case 
on appeal, as settled, containing the exceptions 
and assignments of error, which, together with 
the original record, shall be transmitted by the 
clerk of the general county court to the superior 
court, as the complete record on appeal in said 
court; that briefs shall not be required to be filed 
on said appeal, by either party, unless requested 
by the judge of the superior court. The time 
for taking and perfecting appeals shall be counted 
from the end of the term of the general county 
court at which such trial is had. Upon such ap- 
peal the superior court may either affirm or mod- 
ify the judgment of the general county court, or 
remand the cause for a new trial. From the 
judgment of the superior court an appeal may 
be taken to the supreme court as is now pro- 
vided by law. (1923, c. 216, s. 18; 1933, c. 109.) 

Editor's Note.— Prior to Public Laws 1933, c. 109, the ex- 
ception at the end of the first sentence of this section merely 
provided that the record might be typewritten and that only 
two copies should be required. This was omitted and the 
present exception inserted in lieu thereof. 

Assignment of Error. — In the absence of assignments of 
error appearing in the transcript on an appeal to this Court, 
the appeal will ordinarily be dismissed on the i«otion of the 
appellee. Smith v. The Texas Co., 200 N. C. 39, 41, 156 S. 
E. 160. 

In the exercise of its appellate jurisdiction under this sec- 
tion, the Supreme Court may consider and pass only on the 
contention of the appellant that there was error in matters 
of law at the hearing in the Superior Court. This contention 
must, however, be presented to this Court by assignments of 
error based on exceptions to specific rulings of the judge of 
the Superior Court, on the assignments of error appearing 
in the case on appeal filed in the Superior Court. Id. 

Sending Record Up. — Where an appeal is taken from a 
county court under this section it is not desirable that the 
entire record in the Superior Court be sent up, but only 
such parts as relate to the questions to be reviewed with only 
material exceptions, properly stated, grouped and suffi- 
ciently compiled to enable the court to understand them 
without searching through the record. Baker v. Clayton, 202 
N. C. 741, 164 S. E. 233. 

SUBCHAPTER VI. CIVIL COUNTY 
COURTS 

Art. 26. Under Chapter 135, Acts of 1925 
§ 1608(jj). Appeals. 

An appeal to the Superior Court from the granting or re- 
fusal of a restraining order by the coimty court may be 
taken to the next term of the Superior Court without the 
necessity of serving statement of case on appeal, counter- 
case or exceptions, etc., the case having been heard on the 
pleadings and the record in the Superior Court consisting of 
the summons, complaint, answer, orders, judgment and as- 
signment of errors. Thomason v. Swenson, 204 N. C. 759, 
169 S. E. 620. 

§ 160'8(nn). Removal of cause before justice. 

For an amendment applicable in Mecklenburg County only, 
see Public Laws 1933, c. 279. 



CHAPTER 28 

DEBTOR AND CREDITOR 
Art. 1. Assignments for Benefit of Creditors 

§ 1609. Debts mature on execution of assign- 
ment; no preferences. 

What Constitutes cin Assignment. — 

Same — Deed to Secure Advemcennents. — Where the pur- 
pose of a deed is to secure payment not only of pre-existing 
debts but also of debts to be contracted for advancements to 
aid grantors in carrying on their business then said deed 
is not a voluntary deed of assignment for the benefit of cred- 
itors, within the meaning of this and the following section. 
Commissioner of Banks v. Turnage, 202 N. C. 485, 486, 163 S. 
E 451. 

Same — Chattel Mortgages. — 

A chattel mortgage of an insolvent corporation, executed 
and registered before the appointment of a receiver for it, 
will not be construed under the provisions of this section as 
in effect an assignment \ for the benefit of creditors in the 
absenct of the fact that the property covered by the mort- 
gage constitutes practically all of the property. of the insol- 
vent. Vr.nderwal v. Vanco Dairy Co., 200 N. C. 314, 315, 
156 S. E. 512. 

Art. 4. Discharge of Insolvent Debtors 

§ 1632. Persons imprisoned for nonpayment of 
costs in criminal cases. — The following persons 
may be discharged from imprisonment upon com- 
plying with this article: 

Every person committed for the fine and costs 
of any criminal prosecution. (Rev., s. 1915; Code, 
S. 2967; R. C, c. 59, s. 1; 1773, c. 100, s. 1; 1808, 
c. 746, s. 2; 1810, cc. 797, 802; 1830, c. 33; 1838, 
c. 23; 1840, cc. 33, 34; 1852, c. 49; 1868-9, c. 162, 
s. 26; 1933, c. 228, S. 9.) 

Editor's Note.— Prior to Public Laws 1933, c. 228, sec. 9, 
this section contained a provision which read as follows: 
"Every putative father of a bastard committed for failure to 
give bond, or to pay any sum of money ordered to be paid 
for its maintenance." This provision was omitted by the 
amendment. 



CHAPTER 29 

DESCENTS 
§ 1654. Rules of descent. 

By virtue of this section an heir takes only the undevised 
inheritance of which the ancestor was seized at the time of 
his death. Gosney v. McCullers, 202 N. C. 326, 327, 162 S. 
E. 746. 

Rule 2.— 

Owner's Wishes Respected. — Where the deceased leaves 
a will disposing of his estate the doctrine of advance- 
ments to his child or children has no application. Prevette 
v. Prevette, 203 N. C. 89, 164 S. E. 623. 

Rule 5 — 

Whether of Whole or Half Blood. — WTiere a son acquires 
land by deed from his father and pays a valuable consid- 
eration therefor, and dies without lineal descendants prior to 
his father's death intestate, the land descends to the collat- 
eral relations of the son whether of the whole or half-blood, 
and the inheritance is not limited to the collateral relations 
of the son who are also of the blood of the father, the 
grantor. Ex parte Barefoot, 201 N. C. 393, 394, 160 S. E. 365. 

Rule 9 Applies Only in Case of Illegitimates. — 

See Paul v. Willoughby, 204 N. C. 595, 598, 169 S. E. 226, 
following the statement under this catchline in the Code of 
1931. 



CHAPTER 30 

DIVORCE AND ALIMONY 

§ 1658. What marriages may be declared void 
on application of either party. 

See § 2495 and notes thereto. 

§ 1659. Grounds for absolute divorce. — Mar- 



[66] 



§ 1659(a) 



DIVORCE AND AUMONY 



§ 1664 



v^- 



riages may be dissolved and the parties thereto 
divorced from the bonds of matrimony, on ap- 
plication of the party injured, made as by law 
provided, in the following cases: 

1. If the husband or wife commits adultery. 

2. If either party at the time of the marriage 
was and still is naturally impotent. 

3. If the wife at the time of the marriage is 
pregnant, and the husband is ignorant of the fact 
of such pregnancy and is not the father of the 
child with which the wife was pregnant at the 
time of the marriage. 

4. If there has been a separation of husband 
and wife, whether voluntary or involuntary, pro- 
vided such involuntary separation is in conse- 
quence of a criminal act committed by the de- 
fendant prior to such divorce proceedings, and 
they have lived separate and apart for two suc- 
cessive years, and the plaintiff in the suit for di- 
vorce has resided in this state for one year. 
(Rev., s. 1561; Code, s. 1285; 1871-2, c. 193, s. 
35; 1879, C. 132; 1887, c. 100; 1889, c. 442; 1899, 
c. 29; 1903, c. 490; 1905, c. 499; 1907, c. 89; 1911, 
c. 117; 1913, c. 165; 1917, cc. 25, 57; 1921, c. 63; 
1929, c. 6; 1931, c. 397; 1933, c. 71, s. 1.) 

5. If any person shall commit the abominable 
and detestable crime against nature, with man- 
kind, or beast. 

It shall not be necessary to set forth in the 
affidavit filed with the complaint in suits brought 
under subsection four of this section that the 
grounds for divorce have existed at least six 
months prior to the filing of the complaint, nor 
to allege or prove such fact. (1933, c. 71, s. 2.) 

Paragraph 4. — 
Editor's Note. — 

In subsection 4 of this section, the period of required living 
apart for five successive years was changed to two succes- 
sive years and the requirement that the plaintiff has resided 
in the state for five successive years was changed to one year. 
The changes were efifected by Public Laws of 1933, c. 71. 
That chapter also added the last paragraph of the section 
eliminating the necessity of alleging the existence of grounds 
for six months. 

An action can be maintained under this section only by the 
party injured. Reeves v. Reeves, 203 N. C. 792, 794, 167 S. 
E. 129. 

§ 1659(a). Divorce after separation of two 
years on application of either party. — Marriages 
may be dissolved and the parties thereto divorced 
from the bonds of matrimony, on application of 
either party, if and when there has been a separa- 
tion of husband and wife, either under deed of 
separation or otherwise, and they have lived sep- 
arate and apart for two years, and ' the plaintiff 
in the suit for divorce has resided in the state for 
a period of one year. This section shall be in ad- 
dition to other acts and not construed as repeal- 
ing other laws on the subject of divorces. (1931, 
c. 72; 1933, c. 163.) 

Editor's Note. — 

By Public Laws of 1933, c. 163, the time of living apart 
was changed from five to "two" years, and the required 
residence of the defendant in the State was changed from 
five years to "one year. 

Allegation and Proof That There Are no Children. — Requisite 
to an action under this section are both allegation and 
proof that "no children have been born to the marriage." 
Reeves v. Reeves, 203 N. C. 792, 794, 167 S. 'E. 129. 

§ 1660. Grounds for divorce from bed and 
board. 

Only the party injured is entitled to a divorce from bed 



£ind board under this section. Carnes v. Carnes, 204 N. C. 
636, 637, 169 S. E. 222. 

§ 1661. Affidavit to be filed with complaint; affi- 
davit of intention to file complaint. — The plaintiff 
in a complaint seeking either divorce or alimony, 
or both, shall file with his or her complaint an 
affidavit that the facts set forth in the complaint 
are true to the best of affiant's knowledge and be- 
lief, and that the said complaint is not made out 
of levity or by collusion between husband and 
wife; and if for divorce, not for the mere purpose 
of being freed and separated from each other, but 
in sincerity and truth for the causes mentioned in 
the complaint. The plaintiff shall also set forth 
in such affidavit, either that the facts set forth in 
complaint, as grounds for divorce, have existed 
to his or her knowledge at least six months prior 
to the filing of the complaint, and that complain- 
ant has been a resident of the state for one year 
next preceding the filing of the complaint; or, if 
the wife be the plaintiff, that the husband is re- 
moving, or about to remove, his property and ef- 
fects from the state, whereby she may be disap- 
pointed in her alimony: Provided, however, that 
if the cause for divorce is five [two] years sepa- 
ration then it shall not be necessary to set forth- 
in the affidavit that the grounds for divorce have 
existed at least six months prior to the filing of 
the complaint, it being the purpose of the section 
to permit a divorce after a separation of five 
[two] years without waiting an additional six 
months for filing the complaint. If any wife files 
in the office of the superior court clerk of the 
county where she resides an affidavit, setting 
forth the fact that she intends to file a petition or 
bring an action for divorce against her husband, 
and that she has not had knowledge of the facts 
upon which the petition or action will be based 
for six months, she may reside separate and apart 
from her husband, and may secure for her own 
use the wages of her own labor during the time 
she remains separate and apart from him. If she 
fails to file her petition or bring her action for di- 
vorce within ninety days after the six months 
have expired since her knowledge of the facts 
upon which she intends to file her said petition or 
bring her said action, then she shall not be en- 
titled any longer to the benefit of this section. 
(Rev., s. 1563; Code, s. 1287; 1868-9, c. 93, s. 46; 
1869-70, c. 184; 1907, c. 1008, s. 1; 1925, c. 93; 
1933, c. 71, ss. 2, 3.) 

Editor's Note. — ^The requirement that the complainant has 
been a resident of the state for "two years" was changed 
to "one year" by Public Laws 1933, c. 71. It would seem 
that the word "two" appearing in the brackets in the sec- 
tion is correct in view of the changes made in sections 1655 
and 16S9(a). 

§ 1664. Custody of children in divorce. 

Judgment out of Term. — Where an absolute divorce has 
been decreed in an action and a motion is made respecting 
the custody of a minor child, and the parties agree that the 
judge should render judgment on the motion out of term 
and outside the county of trial, the judgment rendered under 
the terms of the agreement is valid, the judge having au- 
thority under this section to render such judgment. Pate 
V. Pate, 201 N. C. 402, 160 S. E. 450. 

Modification of Decree. — Where, in a decree of divorce the 
father is ordered to pay a certain sum monthly for the sup- 
port of his infant daughter, and by its first order the court 
has retained the cause subject to the right of either party 
at any time to apply for a modification of the order, and 
pursuant to this provision the court later, upon the father's 
insolvency, made the sums assessed a charge on the plain- 



[67] 



§ 1667 



ESTATES 



§ 1743 



tiff's homestead and personal property exemptions when al- 
lotted, the modification is authorized by this section as well 
as by the order of the courts. Walker v. Walker, 204 N. C. 
210, 212, 167 S. E. 818. 

§ 1667. Alimony without divorce. 

Section 1665, may be considered in £in action under this 
section, in determining the allowance of reasonable subsist- 
ence to the wife and children and the allowance of counsel 
fees based on the defendant's means and condition in life. 
JKiser v. Kiser, 203 N. C. 428, 166 S. E. 304. 
Modification or Variation of Order. — 

The amounts allowed for reasonable subsistence and counsel 
"^ees upon application for alimony pendente lite are determined 
by the trial court in his discretion and are not reviewable, 
althouRh either party may apply for a modification before 
trial. Tiedmann v. Tiedmann, 204 N. C. 682, 169 S. E. 422. 

Contempt.— In Little v. I.ittle, 203 N. C. 694, 16S S. E. 
:809, the defendant was held in contempt for disobedience 
■of the court's order for him to pay certain weekly sums to 
this wife under this section. 



CHAPTER 31 

DOGS 
Art. 2. License Taxes on Dogs 
§ 1673. Amount of tax. 

Editor's Note.— 

Public Laws 1933, c. 90 provided that this section should 
not apply to Cherokee. Chapter 90 was amended by Public 
Laws, 1933, c. ,TO1 so as to exempt Macon and Clay counties. 
Public Lnws, 1933, c. 149, repealed §§ 1673-1684, insofar as 
they apply to Swain County. 

§ 1681. Proceeds of tax to school fund; pro- 
viso, payment of damages; reimbursement by 

owner. — The monej^ arising under the provisions 
of this article shall be applied to the school funds 
of the county in which said tax is collected: Pro- 
vided, it shall be the duty of the county commis- 
sioners, upon complaint made to them of injury to 
person or injury to or destruction of property by 
any dog, upon satisfactory proof of such injury or 
destruction, to appoint three freeholders to ascer- 
tain the amount of damages done, including neces- 
sary treatment if any, and all reasonable expenses 
incurred, and upon the coming in of the report of 
such jury of the damage as aforesaid, the said 
county commissioners shall order the same paid 
out of any moneys arising from the tax on dogs as 
provided for in this article; Provided, that before 
appointing a jury or making any payment, the 
commissioners shall satisfy themselves that the 
claimant listed said property for taxation at the 
last listing time, if said property was then owned 
by him. This proviso shall apply only to Chowan 
county. And in cases where the owner of such 
dog or dogs is known or can be ascertained, he 
shall reimburse the county to the amount paid 
out for such injury or destruction. To enforce 
collection of this amount the county commission- 
ers are hereby authorized and empowered to sue 
for the same. 

Provided, however, no amount shall be paid out 
tinder the terms of this article, except upon the 
findings of three freeholders appointed to ascer- 
tain the amount of damages done, expense of 
treatment, and necessary expenses incurred, and 
in no event shall the amount allowed be more 
than the doctor's bill, including medicine and 
treatment, and the actual loss of time based upon 
the earning capacity of the person injured, in- 
cluding reasonable expense of travel to the place 
of treatment, and if injury to property, the actual 

[6 



damage suffered; but this proviso will apply only 
to Rockingham county: Provided further that 
this section shall not apply to Davidson county. 
And provided also that all that portion of this 
section after the word "collected" in line three 
thereof, shall not apply to Lincoln county. (1919, 
c. 116, s. 7; 1925, cc. 15, 25, 79; 1933, c. 28.) 

Editor's Note. — 

The proviso at the end of this section, relating to Lincoln 
county, was added by Public Laws of 1933, c. 28. For an 
act repealing all of the provisos of this section insofar as 
they relate to Duplin county, see Public Laws 1933, c. 477; 
for repealing act as to Mitchell and Avery counties, see Pub- 
lic Laws 1933, c. 273. For act applicable to Guilford and For- 
syth counties only, see Public Laws 1933, c. 547. For act 
applicable to Moore county only, see Public Laws 1933, c. 
526. For Columbus county, see Public Laws 1933, c. 387, and 
for act applicable in Pitt only, see Public Laws 1933, c. 561. 
Public La'>? 1933, c. 200 made the local amendment of 1931, 
applicable i Iso in Onslow county. 

§ 1634(b). Dog tax applicable to all counties; 
exceptions. 

As to damages done by dogs in Surrey county, see Public 
Laws 1933, c. 310. 



CHAPTER 32 

ELECTRIC, TELEGRAPH, AND POWER 
COMPANIES 

Art. 1. Acquisition and Condemnation of 
Property 

§ 1696. Electric and hydro-electric power com- 
panies may appropriate highways; conditions. 

Where under the provisions of this section, a hydro-elec- 
tric power company has appropriated a section of a public 
highway and built another section in lieu thereof, the pro- 
visions of the statute that the company pay all damages as- 
sessed as provided by law does not entitle the plaintiff to 
recover damages for the slight change in the road causing 
inconvenience to him in hauling wood, etc., to and from his 
market town. Crowell v. Tallassee Power Co., 200 N. C. 
208, 156 S. E. 493. 



CHAPTER 33 

EMINENT DOMAIN 
Art. 1. Right of Eminent Domain 
§ 1706. By whom right may be exercised. 

U. STRICT CONSTRUCTION. 
In General. — 

A corporation furnishing electricity for public use may 
condemn lands of a private owner necessary for its trans- 
mission lines under the provisions of this section, but it is 
unlawful for a power company to enter upon and take the 
lands of the owner for such purpose without complying with 
the statutory procedure. Crisp v. Nanthala Power, etc., 
Co., 201 N. C. 46, 158 S. E. 845. 



CHAPTER 34 

ESTATES 
§ 1734. Fee tail converted into fee simple. 

II. RULES IN SHELLEY'S CASE. 
Fee Simple. — 

Where a husband conveys his lands to his wife for life and 
to her bodily heirs begotten by him, the estate conveyed is 
an estate tail special under the rule in Shelley's case, con- 
verted mto a fee simple absolute by this section. Morehead 
v. Montague, 200 N. C. 497, 157 S. E. 793. 

§ 1743. Titles quieted. 

II. NATURE AND SCOPE. 

C. What Constitutes Cloud. 

Tax Deed as Cloud upon Title. — Where a judgment en- 

] 



1744 



ESTATES 



§ 1744 



tered in favor of the county in an action against the owner 
for taxes has been set aside upon motion after notice to the 
parties the owner, in an action to remove cloud upon title, 
is entitled to judgment canceling the tax deed. Galer v. 
Auburn-Asheville Co., 204 N. C. 683, 169 S. E. 642. 

III. ACTIONS. 
C. Jurisdiction of Courts. 
Equity Jurisdiction of Federal Courts. — 

This section does not enlarge the jurisdiction of federal 
courts of equity, as it merely regulates procedure and does 
not create any substantive right. And, even if it could be 
considered as creating an equitable right, it would not au- 
thorize the trial by a federal court of equity of what is in 
essence an action of ejectment, for the reason that in such 
action the defendant is entitled under the federal constitution 
to a trial by jury. Wood v. Phillips, SO F. (2d) 714, 716. 

§ 1744. Remainders to uncertain persons; pro- 
cedure for sale; proceeds secured. — In all cases 
where there is a vested interest in real estate, 
and a contingent remainder over to persons who 
are not in being, or when the contingency has 
not yet happened which will determine who the 
remaindermen are, there may be a sale or mort- 
gage of the property by a proceeding in the su- 
perior court, which proceeding shall be conducted 
in the manner pointed out in this section. Said 
proceeding may be commenced by summons by 
any person having a vested interest in the land, 
and all persons in esse who are interested in said 
land shall be made parties defendant and served 
with summons in the way and manner now pro- 
vided bj'- law for the service of summons in other 
civil actions, as provided by section 479, and serv- 
ice of summons upon nonresidents, or persons 
whose names and residences are unknown, by 
publication as now required by law or such serv- 
ice in lieu of publication as now provided by law. 
In cases where the remainder will or may go to 
minors, or persons under other disabilities, or to 
persons not in being whose names and residence 
are not known, or who may in any contingency 
become interested in said land, but because of 
such contingency cannot be ascertained, the clerk 
of the superior court shall, after due inquiry of 
persons who are in no way interested in or con- 
nected with such proceeding, designate and ap- 
point some discreet person as guardian ad litem, 
to represent such remainderman, upon whom 
summons shall be served as provided by law for 
other guardians ad litem, and it shall be the duty 
of such guardian ad litem to defend such actions, 
and when counsel is needed to represent him, to 
make this known to the clerk, who shall by an 
order give instructions as to the employment of 
counsel and the payment of fees. 

The court shall, if the interest of all parties re- 
quire or would be materially enhanced by it, order 
a sale of such property or any part thereof for 
reinvestment, either in purchasing or in improving 
real estate, less expense allowed by the court for 
the proceeding and sale, and such newly acquired 
or improved real estate shall be held upon the 
same contingencies and in like manner as was 
the property ordered to be sold. The court may 
authorize the loaning of such money subject to its 
approval until such time when it can be reinvested 
in real estate. And after the sale of such prop- 
erty in all proceedings hereunder, where there is 
a life estate, in lieu of said interest or investment 
of proceeds to which the life tenant would be en- 
titled to, or to the use of, the court may in its 
discretion order the value of said life tenants' 

[69 



share during the probable life of such life tenant, 
to be ascertained as now provided by law, and 
paid out of the proceeds of such sale absolutely, 
and th; , ^niaiuuer of such proceeds be reinvested 
as herein provided. Any person or persons own- 
ing a life estate in lands which are unproductive 
and from which the income is insufficient to pa3r 
the taxes on and reasonable upkeep of said lands- 
shall be entitled to maintain an action, without 
the joinder of any of the remaindermen or rever- 
sioners as parties plaintiff, for the sale of said: 
property for the purpose of obtaining funds for 
improving other non-productive and unimproved! 
real estate so as to make the same profit bearing,, 
all to be done under order of the court, or rein- 
vestment of the funds under the provisions of 
this section, but in every such action when the 
rights of minors or other persons not sui juris 
are involved, a competent and disinterested at- 
torney shall be appointed by the court to file an- 
swer and represent their interests. This provi- 
sion (as to sale of unproductive lands) being re- 
medial shall apply to cases where any title in 
such lands shall have been acquired before, as 
well as after, its passage — 1937: Provided that 
the provision shall not affect pending litigation. 

The clerk of the superior court is authorized to 
make all orders for the sale or mortgage of prop- 
erty under this section, and for the reinvestment 
or securing and handling of the proceeds of such 
sales, but no sale under this section shall be held 
or mortgage given until the same has been ap- 
proved by the resident judge of the district, or 
the judge holding the courts of the district at the 
time said order of sale is made. 

The court may authorize the temporary rein- 
vestment, pending final investment in real estate, 
of funds derived from such sale in coupon or 
registered bonds of the United States of America 
(commonly called liberty bonds) issued incident 
to the late war between the United States and the 
imperial German government or bonds of the 
state of North Carolina issued since the year one 
thousand eight hundred and seventy-two; but in 
the event of such reinvestment, the commission- 
ers, trustees or other officers appointed by the 
court to hold such funds shall hold the bonds in 
their possession and shall pay to the life tenant 
and owner of the vested interest in the lands sold 
only the interest accruing on the bonds, and the 
principal of the bonds shall be held subject to 
final reinvestments, and to such expense only as 
is provided in this section. Temporary reinvest- 
ments, as aforesaid, in liberty bonds or state bonds 
heretofore made with the approval of the court 
of all or a part of the funds derived from such 
sales are ratified and declared valid. 

The court shall, if the interest of the parties re- 
quire it and would be materially enhanced by it, 
order such property mortgaged for such terms 
and on such conditions as to the court seems 
proper and to the best interest of the interested 
parties. The proceeds derived from the mort- 
gage to be used for the sole purpose of adding 
improvements to the property. In all cases of 
mortgages under this section the court shall au- 
thorize and direct the guardian representing the 
interests of minors and the guardian ad litem 
representing the interest of those persons unknown 



S 1749 



EVIDENCE 



§ 1801 



or not in being to join in the mortgage for the 
purpose of conveying the interest of such person 
or persons. In all cases of mortgages under this 
section the owner of the vested interest or his 
or her legal representative shall vi^ithin six months 
from the date of the mortgage file with the court 
an itemized statement showing how the money 
derived from the said mortgage has been ex- 
pended, and shall exhibit to the court receipts 
for said money. Said reports to be audited in 
the same manner as provided for the auditing of 
guardian's accounts. The owner of vested inter- 
est or his or her legal representative shall collect 
the rents and income from the property mort- 
gaged and apply the proceeds first to taxes and 
■discharge of interest on the mortgage and the 
annual curtailment as provided thereby, or if said 
persons uses or occupies said premises he or she 
shall pay the said taxes, interest and curtailments 
and said party shall enter into a bond to be ap- 
proved by the court for the faithful performance 
of the duties hereby imposed, and such person 
shall annually file with the court a report and 
receipts showing that taxes, interest and the cur- 
tailment as provided by the mortgage have been 
paid. 

The mortgagee shall not be held responsible 
for the application of the funds secured or de- 
rived from the mortgage. The word mortgage 
whenever used herein shall be construed to in- 
clude deeds in trust. (Rev., s. 1590; 1903, c. 99; 
1905, c. 548; 1907, cc. 956, 980; 1919, c. 17; Ex. 
Sess. 1921, c. 88; 1923, c. 69; 1925, c. 281; 1927, cc. 
124, 186; 1933, c. 123.) 

I. GENERAL CONSIDERATIONS. 
Editor's Note. — 

The only change effected by the 1933 amendment occurs 
in the second paragraph of the section. In the next to the 
last sentence of that paragraph, Public Laws of 1933, c. 123 
inserted, following the word "property" and preceding the 
word "reinvestment", the words "for the purpose of ob- 
taining funds for improving other non-productive," etc. 

III. SALE AND REINVESTMENT. 
C. Application. 
General Illustrations. — 

Where the complaint of a life tenant alleges that the land 
is unproductive and income therefrom is insufficient to pay 
the taxes and reasonable tipkeep, and prays that the land 
he sold in accordance with this section, the demurrer of the 
vested remaindermen is improperly sustained, the complaint 
alleging at least one good cause of action. Stepp v. Stepp, 
2t)0 N. C. 237, 156 S. E. 804. 

In a suit regarding the management of the trust estate 
•where the trustee and the testator's wife and children are 
parties and the one living grandchild is made a party de- 
fendant and is represented by a guardian ad litem, who also 
represents as a class the other grandchildren not in esse, 
all parties having an interest in the estate are properly 
represented, and the judgment of the court is binding as to 
all interests. Spencer v. McCleneghan, 202 N. C. 662, 163 S. 
E. 753. 



CHAPTER 35 

EVIDENCE 
Art. 1. Statutes 

§ 1749. Laws of other states or foreign coun- 
tries. 

Witnesses. — 

The law of another State may be proven in transitory ac- 
tions brought in the courts of this State by witnesses 
learned in the law of such other State, and by its authorized 
statutes and reports of decisions of its courts of last resort, 
and when properly offered in evidence they must be in- 



terpreted bv our courts as matters of law. Howard v. 
Howard, 200 N. C. 574, 158 S. E. 101. 

Art. 6. Competency of Witnesses 

§ 1795. A party to a transaction excluded, 
when the other party is dead. 

II. THE SECTION DISQUALIFIES WHOM. 

A. Parties to the Action. 

In an action to recover for services rendered deceased 

testimony by the plaintiff, that plaintiff boarded deceased 

is incomijetent under the provisions of this section. Price 

V. Pyatt, 203 N. C. 799, 167 S. E. 69. 

B. Parties Interested in the Event of the Action. 
1. General Consideration. 
Witness Must Be Party in Interest. — 

In an action against the administrator of a deceased per- 
son to recover for breach of the deceased's contract to de- 
vise, testimony of witnesses not interested in the event as 
to declarations made by the deceased against his interest 
was properly admitted. Hager v. Whitener, 204 N. C. 747, 
169 S. E. 645. 

2. Applications. 

In caveat proceedings propounders eind caveators are "par- 
ties interested in the event" vnthin the meaning of this 
section. In re Brown, 203 N. C. 347, 166 S. E. 72. 

The interest of one who temporarily held the title to the 
Isinds in dispute prior to the defendant is a sufficient in- 
terest in the event to disqualify his testimony as to a con- 
versation or transaction with the plaintiff's deceased prede- 
cessor in title. Dill-Cramer-Truitt Corp. v. Downs, 201 N. 
C. 478, 160 S. E. 492. 

In this case, testimony of an endorser of a note, as to con- 
versations with the payee's agent, now dead, showing the 
consideration which induced the endorsement, is not ex- 
cluded under this section the agent not being a party 
interested in the event within the meaning of the statute 
for, although the agent guaranteed all notesi to the payee, 
if there was a failure of consideration the payee could hold 
neither of the guarantors and h.ad the endorser been liable 
he could not have recovered from the agent. American 
Agr. .Chemical Co. v. Griffin, 204 N. C. 559, 169 S. E. 152. 

III. WHEN THE DISQUALIFICATION EXISTS. 
Party Testifying against Interest. — 

In an action to declare a deed void on the ground that 
it was never delivered to the grantee since deceased, testi- 
mony offered by the grantor tending to show that the deed 
had not been delivered is not incompetent under this section. 
Gulley V. Smith, 203 N. C. 274, 165 S. E. 710. 

§ 1798, Communications between physician and 
patient. 

In General. — 

If the statements were privileged under this section, then 
in the absence of a finding by the presiding judge, duly en- 
tered upon the record, that the testimony was necessary to 
a proper administration of justice, it was incompetent, and 
upon defendant's objection should have been excluded. 
Sawyer v. Weskett, 201 N. C. 500, 501, 160 S. E. 575. 

§ 1799. Defendant in criminal action competent 
but not compellable to testify. 

Treated as Other Witness. — 

Where a defendant in a criminal prosecution testifiesi in his 
own behalf he waives his constitutional privilege not to an- 
swer questions tending to incriminate him and is subject to 
cross-examination for the purpose of impeaching his credibil- 
ity as other witnesses. State v. Griffin, 201 N. C. 541, 160 S. 
E. 826. 

§ 1801. Husband and wife as witnesses in civil 
actions. 

Contradiction by Wife — Criminal Conversation. — 

In an action for criminal conversation wherein the husband 
has testified to immoral relations between his wife and the 
defendant, the wife is a competent witness for the defendant 
for the purpose of refuting the charges made against her 
character. Chestnut v. Sutton, 204 N. C. 476, 168 S. E. 680. 

Where a witness has written a letter to his wife the as- 
serted right of the defendant to cross examine the witness on 
the letter to produce evidence tending to show bias or preju- 
dice of the witness is excluded by the inhibitions of this sec- 
tion when the letter is procured by the defendant with the 

01 



§ 1802 



FENCES AND STOCK LAW 



§ 1864 



consent rnd privity of the wife alone. State v. Banks, 304 
N. C. 233, 167 S. E;. 851. 

Applied, in action by husband for criminal conversation, in 
Rouse V. Creech, 203 N. C. 378, 166 S. E. 174. 

§ 1802. Husband and wife as witnesses in crim- 
inal actions. — The husband or wife of the defend- 
ant, in all criminal actions or proceedings, shall 
be a competent witness for the defendant, but 
the failure of such witness to be examined shall 
not be used to the prejudice of the defense. 
Every such person examined as a witness shall 
be subject to be cross-examined as are other 
witnesses. No husband or wife shall be compel- 
lable to disclose any confidential communication 
made by one to the other during their marriage. 
Nothing herein shall render any husband or wife 
competent or compellable to give evidence against 
each other in any criminal action or proceeding, 
except to prove the fact of marriage in case of 
bigamy, and except that in all criminal prosecu- 
tions of a husband for an assault and battery 
upon his wife, or for abandoning his wife and/or 
his children, or for neglecting to provide for her 
support and/or the support of his children, it 
shall be lawful to examine the wife in behalf of 
the state against the husband. (Rev., ss. 1634, 
1635, 1636; Code, ss. 588, 1353, 1354; 1856-7, c. 
23; 1866, c. 43; 1868-9, c. 209; 1881, c. 110; 1933, 
c. 13, s. 1; c. 361.) 

Editor's Note,— Public Laws of 1933, cc. 13 and 361, added, 
near the end of this section, the words "and/or his children" 
following- the word "wife" and the words "and/or the sup- 
port of his children" following the word "support." 

Confidential Communication. — 

The confidential communications between husband anl 
■wife cannot, on the grounds of public policy, be admitted in 
evidence. State v. Brittain, 117 N. C. 783, 23 S. E. 433. 

Husband May Testify against Wife in Assault. — 

The rule that neither the husband nor wife is competent 
to testify against the other in criminal cases does not apply 
to proof of assault by the one upon the other. State v. 
French, 203 N. C. 632, 166 S. E. 747. 

Abandonment of Children. — The wife is not competent to 
testify against her husband in a criminal action, unless the 
action comes within the exceptions enumerated in this sec- 
tion, and upon the trial of the husband for wilfully abandon- 
ing and failing to support his minor children, the admission 
of the wife's testimony against him is reversible error. State 
V. Brigman, 201 N. C. 793, 161 S. E. 727. 

Abfuidonment of Wife. — Under this section the wife is a 
■competent witness against her husband as to the fact of aban- 
donment, or neglect to provide adequate support. State v. 
Brown, 67 N. C. 470. 

Proof of Marriage. — The wife is competent to prove the 
fact of marriage under an indictment against her husband 
for abandonment. State v. Chester, 172 N. C. 946, 90 S. E. 
€97. The holding was otherwise under a former wording of 
the statute. State v. Brown, 67 N. C. 470. 

Same — Bigamy. — In an indictment for bigamy the first wife 
of the defendant is a competent witness to prove the mar- 
riage, public cohabitation as man and wife being public ac- 
knowledgments of the relation and not coming within the na- 
ture of the confidential relations which the policy of the law 
forbids either to give in evidence. State v. Melton, 120 N. 
C. 591, 26 S. E. 933. See also State v. McDuffie, 107 N. C. 
S85, 890, 12 S. E. 83. 

Adultery Prior to Marriage. — Where a man and woman are 
indicted for fornication and adultery, and a nol. pros, is en- 
tered as to the feme defendant, the husband of the woman 
is a competent witness to show adultery between the defend- 
ants committed before the marriage of the woman and the 
witness. State v. Wiseman, 130 N, C. 726, 41 S. E. 884. 

Competency of Divorced Parties. — A divorced husband is 
incompetent to testify against the divorced wife in the trial 
of an indictment against her for fornication and adultery 
which occurred prior to the divorce. State v. Raby, 121 N. 
C. 682, 28 S. E. 490. 

§ 1802(a). Wife may testify in applications for 
peace warrants. — The wife shall be competent to 

[- 



make affidavit and testify in application for peace 
warrants against the husband. (1933, c. 13, s. 2.) 

Art. 9. Inspection and Production of Writings 
§ 1823. Inspection of writings. 

Drscretion of Court.— Whether the trial court shall grant 
an order for the inspection of writings upon a sufficient 
affidavit rests in his sound discretion. Dunlap v. London 
Guaranty, etc., Co., 202 N, C, 651, 163 S. E. 750. 

The affidavit supporting an order for inspection, of writ- 
ings must sufficiently designate the writings sought to be 
inspected and show that they are material to the inquiry, 
and where the affidavit is insufficient the order based 
thereon is invalid. Dunlap v. London Guaranty, etc., Co., 
202 N. C. 651, 163 S. E. 750. 



CHAPTER 36 

FENCES AND STOCK LAW 
Art. 3. Stock Law 

§ 1864. Local: Depredations of domestic fowls 
in certain counties. — In the counties and parts 
of counties hereafter enumerated, where the stock 
law prevails, it shall be unlawful for any person 
to permit any turkeys, geese, chickens, ducks or 
other domestic fowls to run at large, after being 
notified as provided in this section, on the lands 
of any other person while such lands are under 
cultivation in any kind of grain or feedstuff, oi 
while being used for gardens or ornamental pur- 
poses. 

Any person so permitting his fowls to run at 
large, after having been notified to keep them up, 
shall be guilty of a misdemeanor, and upon con- 
viction shall be fined not exceeding five dollars or 
imprisoned not exceeding five days, or if it shall 
appear to any justice of the peace that after two 
days notice any person persists in allowing his 
fowls to run at large and fails or refuses to keep 
them upon his own premises, then the said jus- 
tice of the peace may, in his discretion, order any 
sheriff, constable or other officer to kill said 
fowls when so depredating. 

Alamance, 1901, c. 645. 

Bladen, 1901, c. 645. 

Buncombe, 1907, c. 508. 

Burke, 1907, c. 508. 

Cabarrus, 1901, c. 645. 

Caldwell, P. L. 1911, c. 244. 

Cleveland, 1901, c. 645. 

Columbus, 1933, c. 308. 

Currituck, 1901, c. 645. 

Davidson, P. L. 1911, c. 244. 

Duplin, 1908, c. 73. 

Edgecombe, 1901, c. 645. 

Gaston, P. L. 1919, c. 31. 

Graham, 1901, c. 645. 

Granville, P. L. 1911, c. 244. 

Guilford, 1901, c. 645. 

Harnett, P. L. 1931, c. 443. 

Henderson, P. L. 1911, c. 636. 

Iredell, in Turnersburg Township, 1901, c. 645; 
in town of Statesville, 1903, c. 470. 

Jackson, P. L. 1919, c. 31. 

Lee, P. L. 1913, c. 725. 

Lenoir, P. L. 1911, c. 244. 

Macon, P. L- 1919, c. 31. 

Mecklenburg, 1901, c. 645. 

Onslow, P. L. 1911, c. 244. 

Orange, 1903, c. 115. 

1] 



§ 1864(a) 



FISH AND FISHERIES 



§ 1891 



Pasquotank, 1901, c. 645. 

Rockingham, P. L. 1931, c. 434. 

Rowan, 1909, c. 847. 

Stokes, P. L. 1931, c. 23. 

Surry, 1901, c. 645. 

Swain, P. L. 1911, c. 244. 

Transylvania, P. L. 1911, c. 244. 

Tyrrell, P. L. Ex. Sess. 1921, c. 41. 

Vance, 1909, c. 619. 

Wayne, P. L. 1911, c. 244. 

Note. — Statutes more or less similar to the 

above exist in the following counties: 
Catawba, 1903, c. 482. 
Chatham, 1903, c. 482. 
Davie, P. L. 1915, c. 167. 
Forsyth, P. L. 1915, c. 39. 
Green, 1907, c. 917; 1908, c. 78. 
Lincoln, P. L. 1915, c. 312. 
McDowell, P. L. 1917, c. 328. 
Pitt, P. L. 1915, c. 462. 
Randolph, P. E- 1913, c. 645. 
Robeson, P. L. 1917, c. 662. 
Scotland, P. L. 1915, c. 714. 
Wake, P. E- 1915, c. 378. 
Yadkin, P. E. 1915, c. 39; P. E. 1917, c. 321 

(Deep Creek Township excepted). 
Yancy, P. E. 1913, c. 739. 

Editor's Note. — "Columbus" was added to the list of coun- 
ties by Public Laws 1933, c. 308. For act, applicable only 
to Duplin County, making this section over land used for 
cultivation of strawberries or other truck crop, see Public 
Laws 1933, c. 186. 

§ 1864(a). Eastern North Carolina, territory 
placed under stock law. 

As to stock law territory in Onsloy County, see Public 
Laws 1933, c. 151. 



CHAPTER 37 

FISH AND FISHERIES 

SUBCHAPTER I. FISHERIES COMMIS- 
SION BOARD ACT 

Art. 4. Taxes and Regulations 

§ 1889. Licenses for oyster boats; schedule. — 

The fisheries commissioner, assistant commis- 
sioner, or inspector, may grant license for a boat 
to be used in catching oysters upon application 
made, according to law, and the payment of a 
license tax as follows: On any boat or vessel 
without cabin or deck, and under custom-house 
tonnage, using scrapes or dredges, measuring 
over all twenty-five feet and under thirty, a tax of 
two dollars and fifty cents; fifteen feet and under 
twenty-five feet, a tax of one dollar and fifty cents; 
on any boat or vessel with cabin or deck and un- 
der custom-house tonnage, using scrapes or 
dredges, measuring over all thirty feet or under, 
a tax of four dollars; over thirty feet, a tax of five 
dollars; on any boat or vessel using scoops, 
scrapes, or dredges required to be registered or 
enrolled in the custom house, a tax of seventy- 
five cents a ton on gross tonnage. No vessel pro- 
pelled by steam, gas or electricity, and no boat 
or vessel not the property absolutely of a citizen 
or citizens of this state, shall receive license or be 
permitted in any manner to engage in the catch- 



ing of oysters anywhere in the waters of this 
state. (1915, c. 84, s. 11; 1933, c. 106.) 
Editor's Note. — 

Prior to Public Laws of 1933, c. 106, the fees required 
by this section were: $3, $2, $S, $6, and $1.50. The sub- 
stantial reductions were effected by the amendment. 

§ 1890. Boats using purse seines or shirred 
nets; tax. — All boats or vessels of any kind used 
in operating purse seines or shirred nets shall 
pay a license fee of seventy-five cents per ton on 
gross tonnage, custom-house measurement, which 
shall be independent of and separate from the seine 
or net tax on the seines or nets used on said 
boats. This license fee shall be for one year from 
January 1st, and shall not be issued for any period 
less than one year. It shall be issued by the fish- 
eries commission. (1915, c. 84, s. 12; 1917, c. 290, 
s. 3; 1919, c. 333, s. 3; 1933, c. 106, s. 2.) 

Editor's Note.— Prior to Public Laws 1933, c. 106, the fee 
required was $2 per ton instead of $.75 per ton. 

§ 1891. Licenses for various appliances and 
their users; schedule. — The following license tax 
is hereby levied annually upon the different fish- 
ing appliances used in the waters of North Caro- 
lina: 

Anchor gill nets, fifty cents for each hundred 
yards or fraction thereof. 

Stake gill nets, fifty cents for each hundred 
yards or fraction thereof: Provided, that when 
any person uses more than one such net the tax 
shall be imposed upon the total length of all nets 
used and not upon each net separately. 

Drift gill nets, twenty-five cents for each hun- 
dred yards or fraction thereof. 

Pound nets, one dollar and fifty cents on each 
pound; the pound is construed to apply to that 
part of net which holds and from which the fish 
are taken. 

Submarine pounds, or submerged trap nets, one 
dollar and fifty cents for each trap or pound. 

Seines, drag nets and mullet nets under one 
hundred 3'ards, fifty cents each. 

Seines, drag nets and mullet nets over one hun- 
dred yards and under three hundred yards, fifty 
cents per hundred yards or fraction thereof. 

Seines, drag nets and mullet nets over three 
hundred yards and under one thousand yards, 
seventy-five cents per one hundred yards or frac- 
tion thereof. 

Seines, drag nets and mullet nets over one 
thousand yards, one dollar per one hundred yards 
or fraction thereof. 

Fyke nets, twenty-five cents each. 

For each trot line used in taking hard crabs, 
one dollar and fifty cents. 

[Nonresident motor boats chartered by resi- 
dents of the state and used in taking shrimp, ten 
dollars ($10.00) for each boat, and on each non- 
resident person acting as principal or employed 
in taking shrimp, a license ta.x of ten dollars 
($10.00) for each year.] 

Resident motor boats used in taking shrimp, 
three dollars ($3.00) for each boat. 

Motor boats used in hauling nets, two dollars 
and fifty cents ($2.50) for each boat. 

Motor boats used in dredging crabs or escal- 
lops, three dollars ($3.00) for each boat. 

For each trawl used in taking fish or shrimp, 
one dollar ($1.00). 

2] 



§ 1892 



FISH AND FISHERIES 



§ 1959(h) 



Nonresident angler's license to fish with rod 
and reel anywhere in the fresh waters of the 
State during the open season, five dollars ($5.00) 
each; that nothing herein contained shall be con- 
strued so as to require an angler's license of any 
one to fish on his own land or on any privately 
owned lake or pond. 

And for other apparatus used in fishing, the li- 
cense shall be the same as that for the apparatus 
or appliance which it most resembles for the pur- 
pose used. 

In addition to the officers now empowered by 
law, the clerks of the superior courts in the state 
are authorized to issue nonresident angler's li- 
cense under chapter thirty-seven, consolidated 
statutes of North Carolina, in accordance with 
rules and regulations to be prescribed by the 
state fisheries commission board. (1915, c. 84, s. 
14; 1917, c. 290, s. 5; 1919, c. 333, s. 3; 1925, c. 168, 
S. 1; 1927, c. 59, ss. 5, 7; 1931, c. 117; 1933, c. 106, 
s. 3; c. 433.) 

Editor's Note. — 

Public Laws of 1933, oc. 106 and 443, made substantial 
changes in the fees required by this section. 

§ 1892. License tax on dealers and packers. — 

An annual license tax, for the year beginning 
January 1st in each year, to be collected by the 
fisheries commission board, is imposed on all per- 
sons or dealers who purchase or carry on the 
business of canning, packing, shucking, or ship- 
ping the sea products enumerated below, as fol- 
lows: On — 

oysters, two dollars and fifty cents; 

escallops, two dollars and fifty cents; 

clams, two dollars and fifty cents; 

crabs, for shipment out of the state, two dollars 
and fifty cents; 

fish, two dollars and fifty cents-; 

shrimp, two dollars and fifty cents: Provided, 
no license tax shall be imposed on fishermen who 
pay a license on nets to catch fish or shrimp, and 
who ship only the fish or shrimp caught in such 
licensed nets. (1917, c. 290, s. 5; 1919, c. 333, ss. 
1, 2; 1933, c. 106, s. 4.) 

Editor's Note.— Public Laws of 1933, c. 106, reduced the 
fees on oysters, scallops and clams, from $5 to $2.50. The 
amendment also omitted the former provision requiring a 
license of fifty cents a year for shucking or selling oysters 
and clams on local market by retail. 

§ 1893. Purchase tax on dealers; schedule; col- 
lection. — All dealers in and all persons who pur- 
chase, catch, or take for canning, packing, shuck- 
ing, or shipping the sea products enumerated be- 
low shall be liable to a tax to be collected by the 
fisheries commission board as follows: On — 

Oysters, two cents a bushel, except coon oys- 
ters, one cent a bushel; escallops, five cents a gal- 
lon; clams, four cents a bushel; soft crafts, one 
and one-quarter cents a dozen; shrimp, cooked or 
green, fifteen cents per one hundred pounds: 
Provided, however, no license tax shall be im- 
posed or required for trot lines used for taking 
hard crabs from public grounds: Provided, fur- 
ther, that no license tax shall be imposed or re- 
quired for power boats used for dredging escal- 
lops or crabs: Provided, further, that no license 
shall be required of any person who takes oysters 
for shucking and sells such oysters at retail on 
local markets. 

But none of these products shall be twice taxed, 

[7 



and no tax shall be imposed on oysters, escallops, 
or clams taken from private beds or gardens. 
Upon failure to pay said tax, the license provided 
in the preceding section shall at once be null and 
void and no further license shall be granted during 
the current year; and it shall be the duty of the 
commissioner, assistant commissioner, or inspec- 
tor to institute suit for the collection of said tax. 
Such suit shall be in the name of the state of 
North Carolina on relation of the commissioner 
or inspector at whose instance such suit is insti- 
tuted, and the recovery shall be for the benefit 
and for the use of the general fisheries commis- 
sion fund. Any person failing or refusing to pay 
said tax shall be guilty of a misdemeanor. (1915, 
c. 84, s. 13; 1917, c. 290, s. 4; 1919, c. 333, s. 1; 
1921, c. 194, s. 2; Ex. Sess. 1921, c. 42, ss. 2-4; 
1923, c. 170; 1925, c. 168, s. 3; 1927, C. 59; 1929, 
c. 113: 1933, c. 106, S. 5.) 

Editor's Note. — 

Public Laws 1933, c. 106, changed the fees and added the 
three provisos appearing at the end of the first paragraph. 

§ 1893(a). License tax on trawl boats. — There 
shall be levied annually upon each trawl boat, or 
boat used for trawling purposes, documented in 
the customs house, a license tax of twenty-five 
cents per gross ton, and on each trawl boat, or 
boat used for trawling purposes, not documented 
in the customs house a license tax of two dollars, 
and a tax of one dollar for each net. (1933, c. 
106, s. 6.) 

SUBCHAPTER II. SHELLFISH 
Art. 5. Shellfish; General Laws 

Part 2. Leases of Bottoms 

§ 1908. Term and rental. — All leases made un- 
der the provisions of this article shall begin upon 
the issuance of the lease, and shall expire on the 
first day of April of the twentieth year thereafter. 
The rental shall be at the rate of fifty cents per 
acre for the first ten years and one dollar per 
acre per year for the next ten years of the lease, 
payable annually in advance on the first day of 
April of each year: Provided, that in the open 
waters of Pamlico Sound (and for the purposes 
of this article the open waters of Pamlico Sound 
shall mean the waters that are outside the four 
miles of the shore line) the rental shall be at the 
rate of fifty cents per acre per year for the first 
three years, one dollar per acre per year for the 
next seven years, and two dollars per acre per 
year for the next ten years, of the lease. This 
rental shall be in lieu of all other taxes and im- 
posts whatever, and shall be considered as all 
and the only taxation which can be imposed by 
the state, counties, municipalities or other subor- 
dinate political bodies. The rental for the first 
year shall be paid in advance, to an amount pro- 
portional to the unexpired part of the year to the 
first of April next succeeding. (1909, c. 871, ss. 
5, 9; 1919, c. 333, s. 6; 1933, c. 346.) 

Editor's Note. — The rental fees were reduced, by Public 
Laws 1933, c. 346, from $1 and $2, to $.50 and $1, respec- 
tively. 

Art. 7A. Propagation of Oysters 

§ 1959(h). Planting of certain kinds of oysters 
prohibited. — It shall be unlawful for any person, 
persons, firm or corporation to plant, store, dis- 

3] 



1970 



GAME ,LAWS 



§ 3135(a) 



tribute or in any way deposit the Japanese, Port- 
ugese or Mongolian oysters in any of the waters 
of North Carolina. Any person, persons, firm or 
corporation violating or attempting to violate this 
section shall be guilty of a felony, and, upon con- 
viction, shall be fined not less than one thousand 
($1,000.00) dollars or imprisoned not less than 
one (1) year, or both, in the discretion of the 
court. (1933, c. 235.) 

SUBCHAPTER III. FISH OTHER THAN 
SHELLFISH 

Art. 9. Commercial Fishing; Genercd Regulations 

§ 1970. Sunday fishing. — If any person fish on 
Sunday with a seine, drag-net or other kind of 
net, he shall be guilty of a misdemeanor, and fined 
not less than two hundred nor more than five 
hundred dollars or imprisoned not more than 
twelve months. (Rev., s. 3841; Code, s. 1116; 
1883, c. 338; 1933, c. 438.) 

Editor's Note. — 

Public Laws 1933, c. 438, omitted the exception as to nets 
fastened to sticks. 

For act exempting- stationary fisheries in Onslow County 
from operation of section, see Public Laws 1933, c. 51. 

Art. 10. Commercial Fishing; Local 
Regulations 

Part 2. Streams 

§ 2015. Roanoke river: Drift nets in, regulated. 

— It is unlawful to fish any drift nets in the Roa- 
noke river over twenty yards in length, and no 
net shall drift within three hundred yards of an- 
other net and no two nets shall drift abreast of 
■each other. Any person violating the provisions 
of this section shall be guilty of a misdemeanor 
and fined not less than one hundred dollars or 
imprisoned in the discretion of the court: Pro- 
vided, it shall be lawful on the Roanoke River 
from Halifax to the Power Dam at Roanoke 
Rapids to fish from January 1st to June 1st of 
■each year with skim nets, dip nets, and fish traps 
with or without wings or hedgings. (1911, c. 163, 
s. 3; 1933, c. 336.) 

Editor's Note.— Public Laws 1933, c. 336, added the pro- 
viso at the end of this section. 

Part 3. Counties 

§ 2066(a). Onslow County: Ban on use of 
haul nets and seines in New River. — It shall be 
unlawful to haul or drag seines or nets of any 
size, length or description by any means whatso- 
ever within the waters of New River and its trib- 
utaries in Onslow County: Provided, that this 
section shall not be construed to prevent the 
transportation of seines or nets by boat: Pro- 
vided further, that this section shall not apply to 
shrimp seines not over one hundred and fifty 
yards in length operated exclusively by hand and 
for the purpose of catching shrimp only as now 
provided by law or regulation. 

Any person violating the provisions of this 
section shall be guilty of a misdemeanor and 
upon conviction shall be fined or imprisoned in 
the discretion of the court. (1933, c. 253.) 



SUBCHAPTER IV. NONCOMMERCIAL 
FISHING 

Art. 14. Licenses under Public Laws 1929 

§ 2078 (r). Non-resident state license. — Any 

person, without regard to age or sex, upon appli- 
cation to the director of the department of con- 
servation and development, his assistants, ward- 
ens or agents authorized in writing to issue li- 
censes, and the presentation of satisfactory proof 
that he is a non-resident of the state, shall, upon 
the payment of five ($5.00) dollars for the use 
of the department of conservation and develop- 
ment and ten ($.10) cents for the use of the of- 
ficial authorized in writing to issue licenses, be 
entitled to a "non-resident state fishing license" 
which will authorize the licensee to fish in any 
of the waters of North Carolina as provided un- 
der section one: Provided that any non-resident 
of the state desiring to fish for one day or more 
in the waters of the state of North Carolina may 
do so upon payment to the clerk of the court or 
game warden of the county in which the non- 
resident desires to fish the sum of sixty cents 
(60c) for each day, the sum of ten cents (10c) of 
said sum to go to the selling agent of said license 
or permit, and upon the payment of said sum of 
sixty cents (60c) the clerk of the court or game 
warden shall issue a permit allowing said non- 
resident to fish. (1929, c. 335, s. 3; 1931, c. 351; 
1933, c. 236.) 

Editor's Note. — 

Public Laws of 1933, c. 236, added the proviso, at the end 
of the section, relating to short time licenses for nonresi- 
dents. 

SUBCHAPTER V. LICENSES FOR THE 

ARTIFICIAL PROPAGATION OF 

FISH 

Art. 15. Licenses in General 

§ 2078(ee). By whom issued. — The department 
of conservation and development is authorized to 
issue an artificial propagation license for the prop- 
agation of all species of trout and all species of 
bass, upon written application therefor signed by 
the applicant and upon the payment to said de- 
partment the sum of five dollars; for all other 
species of fish, the sum of fifty cents: Provided, 
that any commercial fisherman who has paid the 
required license or licenses upon his fishing nets, 
devices or gear shall not be required to pay an 
additional license to deal in live fish for propaga- 
tion purposes. (1929, c. 198, s. 1; 1933, c. 430, 
s. 1.) 

Editor's Note.— Public Laws 1933, c. 430, added the pro- 
viso at the end of this section relating to payment of li- 
cense by commercial fisherman. 



CHAPTER 38 

GAME LAWS 

Art. 6. Local Hunting Laws 

§ 2135(a) Local by counties; no closed season 
on foxes in certain counties. — It shall be lawful 
to hunt, take or kill foxes at any time in Ashe, 



[74] 



§ 2141 (j)l 



GAME LAWS 



§ 2141(ii) 



Avery, Iredell, Lenoir, Henderson and Watauga 
counties. (1931, c. 143, s. 5; 1933, c. 428.) 

Editor's Note.— Public Laws 1933, c. 428, added Hender- 
son to the list of the counties. 

Art. 7. North Carolina Game Law of 1927 as 
Amended 

§ 2141 (j)l. Offices of state game warden and 
fisheries commissioner abolished; new office cre- 
ated. — The office of state game warden and the 
office of the commissioner of inland fisheries are 
hereby abolished. The board of conservation and 
development may appoint a person of scientific 
training and experience in the propagation and 
preservation of fish and game, who shall carry 
out the duties now prescribed for the state game 
warden and commissioner of inland fisheries, and 
whose salary shall not exceed three thousand dol- 
lars ($3,000.00) per year. (1933, c. 357.) 

§ 2141 (u). Powers of county game commis- 
sion. — This article shall not be construed to dis- 
solve any game commissions now existing in the 
several counties, nor to prohibit the creation of 
game commissions in the several counties, and 
such commissions now existing and such as may 
be created shall exist, but supervision of the pro- 
visions of this article and the direction of the poli- 
cies and administration of this article and other 
acts which may exist for the same purposes as 
this shall be vested in and abide with the state 
game commission, and the powers of such county 
commissions as may exist or may be created shall 
be of a nature advisory and recommendatory to 
the state game commission and the exercise of 
any powers by them shall require the approval of 
the state game commission. In counties where 
game commissions are not created by legislative 
act the game commission of said county shall be 
composed of the chairman of the board of county 
commissioners, the clerk of the superior court, 
and the duly appointed and bonded county game 
warden as authorized in section 2141 (w). (1927, 
c. 51, s. 18; 1933, c. 423, s. 1.) 

Editor's Note.— Public Laws 1933, c. 422, added, as the 
last sentence of the section, the provision applicable in 
counties where commissions are not created by legislative 
act. 

§ 2141 (w). Power's of warden: To employ 
deputies. 

Although a man may have been duly appointed under this 
section he is not an employee of the State before he has 
received word of his appointment and accepted it. Birch- 
field v. Department of Conservation, etc., 204 N C 217 
167 S. E. 855. 

§ 2141 (bb). Payment to state treasurer of li- 
cense fees. — The warden shall promptly pay to 
the state treasurer all moneys received by him 
from the sale of hunting licenses or from any 
other source arising through the administration 
of this article, and the state treasurer shall deposit 
all such moneys in a special fund to be known as 
the state game fund and which is hereby re- 
served, set aside, appropriated and made avail- 
able until expended as may be directed by the 
commission in the enforcement of this article, for 
the purposes of this article, and shall be used for 
no other purpose: Provided, that under the fiscal 
laws, rulings of the budget bureau and in the 
manner used in paying any other bill or item of 



expense there shall be paid each hunting season 
l)y the department of conservation and develop- 
ment to each county game commission as created 
ill section eighteen, as amended, one one-hun- 
dredth part of the following per cent of receipts 
from the total sales of hunting licenses in North 
Carolina; five per cent of the first twenty-five 
thousand dollars; ten per cent of the second 
twenty-five thousand dollars; and fifteen per cent 
of all sales in e.xcess of fifty thousand dollars, said 
remittances to be made as promptly as practicable 
and to be used by the county game commission 
specifically and only for paying bounties for the 
heads of outlawed predatory birds and animals in 
said county. (1927, c. 51, s. 25; 1933, c. 422, s. 2.) 
Public Laws 1933, c. 422, added the proviso at the end 
of this section, relating to the percentage allowed counties. 

§ 2141 (dd). License required. 

Editor's Note. — 

For an act fixing licenses for the seasons of '33-'34 and 
'34-'35, see Public Laws 1933, c. 422, § 3. For an act re- 
lating to fox hunting with dogs applicable only to North- 
ampton County, see Public Laws 1933, c. 157. 

§ 2141 (ii). Open seasons. — -That for the pur- 
pose of fixing the open seasons the state shall be 
divided into three zones: the western, the central, 
and the eastern. The western zone shall be com- 
posed of the counties of Alleghany, Ashe, Wa- 
tauga, Avery, Mitchell, Yancy, Buncombe, and 
Henderson and all other counties lying west of 
said counties; the central zone shall begin at the 
eastern boundary of the western zone, extend to 
and include the counties of Warren, Franklin, 
Wake, Chatham, Lee, Moore and Richmond; the 
eastern zone shall begin on the eastern boundary 
of the central zone and include all counties to the 
Atlantic Ocean. The open season for taking 
game animals and game birds, excepting opos- 
sum, raccoon, bear, bufifalo, elk, squirrel and deer, 
shall be as follows: 

Western Zone — November 15 to January 1. 

Central Zone — November 20 to February 20. 

Eastern Zone — November 20 to February 1. 
The open season on deer as follows: 

Western and Central Zones — October 15 to De- 
cember 15. 

Eastern Zone — September 1 to December 15. 
The open season on squirrel as follows: 

Western Zone — October 1 to November 30. 

Central and Eastern Zones — October l to De- 
cember 31. 
The open season on opossum and raccoons as 
follows: 

All Zones — November 1 to January 31. 
The open season on bear as follows: 

Western and Central Zones — October 1 to 
January 15. 

Eastern Zone — Outlawed for 1933. 
Provided, that the open seasons in the counties 
of Halifax, Northampton, Hertford, Person, Mar- 
tin, Bertie, and Washington shall be as follows: 

squirrel — September 15 to February 1. 

deer — September 1 to January 1. 

quail — November 20 to February 20. 

turkey — November 20 to February 20. 

raccoon — October 1 to February 1. 

No open seasons on the following game animals 



[75] 



§ ai4i(jj)i 



GAME LAWS 



§ 2141(aaa) 



and birds: beaver, buffalo, elk, doe deer, pheas- 
ants and ruffed grouse. 

The open and closed season on all migratory- 
wildfowl shall conform with the United States 
biological survey legislation, irrespective of sea- 
son as set for them by the North Carolina game 
laws. (1933, c. 422, s. 4.) 

Editor's Note. — 

Public Laws of 1933, c. 422, struck out the section as it 
formerly appeared and substituted the present section. A 
comparison of the old with the new is necessary to ascer- 
tain the changes. For act closing season on turkey in 
Guilford County for period of five years, see Public Laws 
of 1933, c. 169. This act was later repealed by Public Laws 
1933, c. 378. 

§ 2141 (jj)l. Protection of public hunting 
grounds by department of conservation and de- 
velopment. — In order to improve hunting, to open 
to the hunting public lands well stocked with 
game, and to give landowners some income 
through game protection and propagation, the 
state of North Carolina through the department 
of conservation and development is authorized to 
recognize, list, and assist the owners in protecting 
their lands which are a part of public hunting 
grounds organized under this section of the North 
Carolina game law subject to the following con- 
ditions, stipulations, and such rules as the con- 
servation board may adopt for the regulation of 
said hunting grounds: 

(1) The minimum area recognized under this 
act is one thousand (1,000) acres; 

(2) Owners of lands included in a hunting 
ground formed under this act must organize, 
adopt rules and regulations for the operation of 
said hunting ground, and be recognized by the 
department of conservation and development be- 
fore such hunting grounds are put into operation 
under this section. 

(3) The department of conservation and de- 
velopment will list and assist in advertising such 
public hunting grounds as are formed under this 
section, subject to such rules and regulations as 
may be adopted by the board from time to time 
and in accordance with the North Carolina game 
law and this section. The department of con- 
servation and development will furnish at cost to 
the owners of public hunting grounds posters to 
be used in posting such lands, such poster to state 
that the lands are posted under this section of the 
North Carolina game law and in case of with- 
drawal of recognition by the department such 
posters shall be removed from the lands effected 
within ten days after notice to owner or owners; 

(4) Owners of public hunting grounds shall 
require of each and every hunter the prescribed 
hunting licenses as set forth elsewhere in the 
North Carolina game law; 

(5) The owners of public hunting grounds 
may require of each and every hunter a per day 
rate for hunting, rates to be approved by the de- 
partment of conservation and development, said 
rates not to exceed four dollars ($4.00). In ad- 
dition to charges for the privilege of shooting 
game, landowners may charge a dog hire when 
landowners furnish dogs, dogs to be furnished 
only by request of the hunter; 

(6) When any group of owners of a public 
hunting ground organized under this section de- 
cide to promote the hunting of certain kinds of 

[ 



game, said kinds of game used for stocking to be 
propagated in game breeding plants organized 
and operated under the game and other laws of 
North Carolina, the owners shall be permitted to 
charge hunters such fees and rates as are ap- 
proved by the board of conservation and devel- 
opment; 

(7) No hunter is allowed to quit the hunting 
grounds at the end of the day's or part of a day's 
hunting without seeing the authority who gave 
him permission to hunt on said hunting grounds 
and paying all accounts due said authority; 

(8) No construction or interpretation shall be 
put on this section or any part thereof as to per- 
mit the sale of dead game killed in accordance 
with this section, abrogate the bag limits, time of 
hunting, open and closed seasons as prescribed 
elsewhere in the North Carolina game law; 

(9) No person shall hunt or discharge firearms 
upon any public hunting grounds organized un- 
der this section without being accompanied by 
one of the landowners or a personal representa- 
tive of one landowner or after securing, on the 
day of the hunt or day preceding the hunt, writ- 
ten permission to hunt under the authority of 
this act, said written permission to bear the name 
in full, age, and address of the hunter, under the 
penalty of being fined in the courts, upon convic- 
tion, not less than twenty-five dollars for each 
and every offense; 

(10) When hunting grounds, or any part there- 
of, organized and operated under this section, are 
used for purposes not consistent with the federal, 
state, and local laws, the department of conserva- 
tion and development shall withdraw recognition 
from the area or such parts thereof as are deemed 
advisable, and report the case to the proper civil 
officials. (1931, c. 159; 1933, c. 422, s. 5.) 

Editor's Note. — The only change effected by the 1933 
amendment appears in clause (1). Public Laws 1933, c. 
422, changed the minimum area recognized from 3,000 acres 
to 1,000 acres. 

§ 2141 (jj) 2. Consent in writing to hunt upon 
another's lands. — It shall be unlawful for any per- 
son or persons to hunt with guns or dogs upon 
the lands of another without first having obtained 
permission from the owner or owners of such 
lands, and said permission so obtained may be 
continuous for one open hunting season only. 
(1933, c. 422, s. 6.) 

This section does not repeal c. 210, Public Laws 1931 re- 
lating to Bladen County Game Laws. 

§ 2141 (qq). Punishment for violation of article. 

Editor's Note. — 

Public Laws of 1933, c. 422, § 7, provides: "Any person 
or persons violating any of the provisions of this act 
[amending §§ 2141(u), 2141(bb), 2141(ii), 2141(ji) 1, and add- 
ing § 2141(jj) 2,] shall be guilty of a misdemeanor and 
fined not to exceed fifty dollars or imprisoned for not more 
than thirty days for each offense." 

§ 2141 (aaa). Amount of license; license to be 
good only in county of residence. — Such licenses 
must be taken out before any person, firm or cor- 
poration in any manner engages in the business 
of buying and selling furs, and the amount of 
said licenses shall be as follows: For a resident 
state-wide license the sum of twenty-five dollars, 
which will entitle the holder to buy and sell furs 
in any or all of the counties of North Carolina; 
for a resident county license the sum of ten dol- 

■6 1 



§ 2141 (ccc) 



GUARDIAN AND WARD 



§ 2180 



lars, which will entitle the holder to buy or deal 
in furs only in the county designated in the li- 
cense, and for each additional county the sum of 
ten dollars; for a non-resident of the state of 
North Carolina before he shall be permitted to 
engage in the business of buying or selling furs 
or dealing in same, any such person, firm or cor- 
poration shall annually take out a fur dealer's li- 
cense and shall pay therefor the sum of one hun- 
dred dollars for a state-wide license. These li- 
censes shall be issued through the wardens or 
agents of the department of conservation and 
development as a part of their official duties. An 
annual license shall be issued for the sum of five 
dollars per annum: Provided, such license shall 
be issued only to a dealer buying only in the 
county of his residence, at a fixed place of busi- 
ness. (192D, c. 333, s. 2; 1933, c. 337, S. 1.) 

Editor's Note.— Prior to Public Laws 1933, c. 337, the 
state-wide license for a resident was $75, instead of $25. 
The license for a non-resident was $400, instead of $100, 
and counties were permitted to collect an additional $50 
from such resident. The next to the last sentence for- 
merly provided for an annual local license of $5, instead of 
$1, with the limitation that the buying should not exceed 
$500 worth of furs per annum. 

§ 2141 (ccc). What counties may levy tax. — No 

county, city or town shall have the right to levy 
any license on resident fur dealers except that the 
county in which such dealers or buyers main- 
tain a place of business or residence may charge 
and collect from such dealers a license tax of not 
more than five dollars per annum. (1929, c. 333, 
s. 4; 1933, c. 337, s. 2.) 

Editor's Note. — Ten dollars, instead of five dollars,' was 
the amount permitted to be collected prior to Public Laws 
1933, c. 337. 

§ 2141 (ddd). Permits may be issued to non- 
resident dealers. — It shall be lawful for the de- 
partment of conservation and development to is- 
sue permits to non-resident dealers for the pur- 
chase of raw furs from only licensed fur dealers 
in North Carolina. (1929, c. 333, s. 5; 1933, c. 
337, s. 3.) 

Editor's Note.— Prior to Public Laws 1933, c. ?,i7, this sec- 
tion contained the proviso limiting permits to the purchase 
of furs from dealers who had taken out the $75 license. 

§ 2141 (eee). Duplicate license for each em- 
ployee of dealer, $25 each; applicants must be 
residents. — All bona fide members of a resident 
firm or corporation and their bona fide regular 
employees, all such members and employees be- 
ing residents of North Carolina, shall be required 
to take out a license showing their employment 
and shall pay therefor the sum of twenty-five 
dollars each. Applicants for resident fur dealers 
license must have actually resided in the state for 
six months next before making application for 
such license. (1929, c. 333, s. 6; 1933, c. 337, s. 4.) 

Editor's Note. — In the first sentence of this section, Pub- 
lic Laws of 1933, c. 337, struck out the word "duplicate" be- 
fore the word license. It also increased the sum from $10 
to $25. 



CHAPTER 40 

GUARDIAN AND WARD ' 
Art. 1. Jurisdiction in Matter of Guardianship 
§ 2150. Jurisdiction in clerk of superior court. 

Removal of Guardian. — A ward may not bring an action 
in the Superior Court by her next friend to remove her 



guardian appointed by the clerk under this section. Moses 
V. Moses, 204 N. C. 657, 169 S. E. 273. 

Art. 2. Creation and Termination of Guardianship 
§ 2158. Removal by clerk. 

A ward may not bring an action in the Superior Court by 

her next friend to remove her guardian and appoint another, 
the Superior Court in such instance being without jurisdic- 
tion. Moses V. Moses, 204 N. C. 657, 169 S. E. 273. 

Art. 3. Guardian's Bond 

§ 2161. Bond to be given before receiving prop- 
erty. 

Cross References. — 

As to the liability of a bank and its surety for mingling 
funds while acting as guardian, see § 2162 and the note 
thereto. As to corporation acting as guardian without giv- 
ing bond, see §§ 6^7(:) and 6377. 

Necessary Parties to Action on Bond. — Where an assistant 
clerk of the Superior Court has been appointed guardian of 
the estate of a minor by the clerk and has given bond and 
has defaulted, causing loss to the estate of the minor, up- 
on the minor's coming of age he and the new guardian ap- 
pointed may sue upon the guardianship bond and where 
he does so neither the clerk of the Superior Court nor his 
sureties on his bond is a necessary party, so far as his ac- 
tion is concerned. Phipps v. Royal Indemnity Co., 201 N. 
C. 561, 161 S. E. 69. 

§ 2162. Terms and conditions of bond; in- 
creased on sale of realty. 

Bank Intermingling Trust Fundis. — If a bank, as guardian, 
in not investing the funds of its ward, but intermingling it 
with other funds of its bank, it is faithless to the trust re- 
posed in it; under the terms of this section, then its bonds- 
man, must suffer the loss for such faithlessness. Roebuck 
V. National Surety Co., 200 N. C. 196, 202, 156 S. E. 531. 

§ 2165. Renewal of bond every three years; en- 
forcing renewal. 

WKere a guardian gives several successive bonds for the 

faithful discharge of his trust, the sureties on each bond 
stand in the relation of cosureties to the sureties on every 
other bond; the only qualifiication to the rule being, that the 
sureties are bound to contribution only according to the 
amount of the penalty of the bond, in which each class is 
bound. Thornton v. Barbour, 204 N. C. 583, 585, 169 S. 
E. 153. 

§ 2166. Relief of endangered sureties. 

The clerk is not empowered by any express statute to re- 
lease sureties, upon bonds approved by him, certainly at a 
time when the principal is in default, this section provides 
a remedy for dissatisfied sureties upon guardian bonds, but 
release is not one of the remedies therein contemplated. 
Thornton v. Barbour, 204 N. C. 583, 587, 169 S. E. 153. 

Art. 4. Powefs and Duties of Guardian 
§ 2169. To take charge of estate. 

Payment of funds to a guardian by Veterans' Bureau un- 
der War Risk Insurance Act vests title in the ward and 
operates to discharge the obligation of the United States. 
Hence the deposit of the funds in a bank which was duly ap- 
pointed guardian and which later became insolvent does not 
belong to the United States and, as indebtedness to the 
United States is essential to priority under 31 U. S. C. A., 
§ 191, the claim of the surety on the guardian's bond is 
without merit. In re Home Savings Bank, 204 N. C. 454, 
168 S. E. 688. 

Art. 5. Sales of Ward's Estate 



§ 2180. Special proceedings to sell; judge's 
approval required. 

Where an order confirming a sale of lands for partition 
does not provide for the disbursement of the funds, and the 

sum received in cash is properly paid into court and prop- 
erly disbursed to the parties, the share of the minors 
therein being less than one hundred dollars and being paid 
to their mother for their benefit, under § 962, the sale was 
not void. Ex parte HufJstetler, 203 N. C. 796, 167 S. E. 65. 

[77] 



§ 2183 



GUARDIAN AND WARD 



§ 2202(g) 



Art. 6. Returns and Accounting 
§ 2183. Return within three months. 

In the administration of the estate in behalf of the luna- 
tic, the guardian is subject to the orders of the clerk by 
whom he was appointed and to whom he is required by this 
and following sections to account. Read v. Turner, 200 N. C. 
773, 777, 158 S. E. 475. 

§ 2187. Procedure to compel accounting. — If 

any guardian omit to account, as directed in tiie 
preceding section, or renders an insufficient and 
unsatisfactory account, the clerk of the superior 
court shall forthwith order such guardian to ren- 
der a full and satisfactory account, as required 
by law, within twenty days after service of the 
order. Upon return of the order, duly served, if 
such guardian fail to appear or refuse to exhibit 
such account, the clerk of the superior court may 
issue an attachment against him for contempt 
and commit him till he exhibits such account, and 
may likewise remove him from office. And in all 
proceedings hereunder the defaulting guardian 
will be liable personally for the costs of the said 
proceeding, including the costs of service of all 
notices or writs incidental to, or thereby accru- 
ing, or the amount of the costs of such proceed- 
ing may be deducted from any commissions 
which may be found due said guardian on settle- 
ment of the estate. Where a corporation is 
guardian, the president, cashier, trust officer or 
the person or persons having charge of the par- 
ticular estate for said corporation, or the person 
to whom the duty of making reports of said es- 
tate has been assigned by the officers or directors 
of said corporation, may be proceeded against and 
committed to jail as herein provided as if he or 
they were the guardian or guardians personally: 
Provided, it is found as a fact that the failure or 
omission to file such account or to obey the or- 
der of the court in reference thereto is willful on 
the part of the officer charged therewith: Pro- 
vided further, the corporation itself may also be 
fined and/or removed as such guardian for such 
failure or omission. (Rev., s. 1806; Code, s. 1618; 
C. C. P., s. 479; 1929, c. 9, s. 2; 1933, c. 317, § 1.) 

EdStor's Note.— 

Public Laws 1933, c. 317, inserted the last sentence of this 
section relating to compelling corporate guardians to ac- 



Art. 10. Guardian of Estates of Missing Persons 

§ 2202(a). Appointment. — When it shall be made 
to appear to the satisfaction of the clerk of the su- 
perior court, or a judge of the superior court hav- 
ing jurisdiction of the appointment of guardians, 
that any person has disappeared from the commu- 
nity of his residence, and his whereabouts remains 
unknown in such community for a period of three 
(3) months, and cannot, after diligent inquiry, be 
ascertained; and that such person has property in 
the state and property rights within its jurisdic- 
tion which may be affected by his absence, or 
may need protection and administration; and that 
such person has made no provision for the man- 
agement of his affairs; such clerk of the superior 
court or judge of the superior court may appoint 
a guardian of the estate and property of such 
person as may, by law be done in the case of 
minors and persons non compos mentis, and with 
the like powers and duties with respect to such 
estate. (1933, c. 49, s. 1.) 



§ 2202(b). Jurisdiction. — The clerk of the su- 
perior court of the county of the last resi- 
dence of such absent person shall have prior 
right to jurisdiction of such appointment, but the 
appointment may be made by the clerk of the 
superior court of any county in the state where 
such person has property, after the expiration of 
six months from the time of such disappearance, 
if no prior appointment has been made. (1933, 
c. 49, s. 2.) 

§ 2202(c). Powers and duties; bond. — The 

guardian, so appointed, shall have all the pow- 
ers and duties with respect to the property and 
estate of such absent person as are now, or may 
be hereafter, conferred by law upon guardians 
generally; and before entering into the discharge 
of the duties of his guardianship, he shall be re- 
quired to enter into such bond as is now required 
by law in such cases, for the faithful perform- 
ance of his trust and for the accounting of the 
property, moneys and assets of the estate com- 
ing into his hands as guardian, (1933, c. 49, s. 
3.) 

§ 2202(d). General laws applicable. — The pub- 
lic laws relating to guardianships, and particu- 
larly chapter forty (40), consolidated statutes of 
North Carolina, entitled "guardian and ward," as 
far as by their terms may be applicable, and as 
far as they are not modified by this article shall 
apply to guardians so appointed. (1933, c. 49, 
s. 3.) 

§ 2202(e). Other managerial powers conferred. 
— -In addition to the powers given to guardians 
under the general laws of the state, such guard- 
ians may, by approval of the court, apply funds 
in his hands to the satisfaction of obligations of 
such absent person, renew notes and other ob- 
ligations, pledge property for loans necessary in 
carrying on or liquidation of the afifairs of such 
absent person; cause lands to be cultivated, 
where such business was previously carried on, 
and make such contracts with reference thereto 
as he may deem to the best interest of the estate, 
and, under the direction of the court and with its 
approval, continue to operate any business or 
business enterprise of such person, and make 
such contracts, agreements and settlements in 
reference thereto as may be necessary, or to the 
best interests of the estate. (1933, c. 49, s. 4.) 

§ 2202(f). Discharge of guardian upon return 
of missing person. — ^Upon the return of such ab- 
sent person, and within six months from the fil- 
ing of the petition by such person to be restored 
to his property and to the management of his 
estate, the clerk of the superior court having 
jurisdiction of the said guardianship shall require- 
a settlement of the estate by the guardian so ap- 
pointed, and shall cause to be turned over to him 
all of the said estate then in the hands of the 
said guardian, after the payment of such reason- 
able costs and commissions as may be authorized 
by law, and, upon the filing of a financial ac- 
count by the said guardian, he shall be dis- 
charged. (1933, c. 49, s. 5.) 

§ 2202(g). Guardian not liable except for mis- 
conduct. — No action shall 1)e maintained against 
such guardian, or the sureties on his bond, by 
reason of his appointment, taking over and man- 
aging the property of such absent person, or any- 



[78] 



§ 2202(10) 



INSANE PERSONS AND INCOMPETENTS 



§ 2285 



of his acts with respect to the said estate, where 
it appears that they were done under authoritj' 
of this article, but only for recovery because of 
the misconduct in office or bad faith of such 
guardian, or the waste of the assets of the estate 
through mismanagement, amounting to gross 
carelessness or in violation of the law. (1933, c. 
49, s. 6.) 



CHAPTER 40A 

VETERANS' GUARDIANSHIP ACT 

§ 2202(10). Guardian's accounts to be filed; 
hearing on accounts. — Every guardian who shall 
receive on account of his ward any moneys from 
the bureau, shall file with the court annually on 
the anniversary date of the appointment, in ad- 
dition to such other accounts as may be required 
by the court, a full, true, and accurate account 
under oath of all moneys so received by him, of 
all disbursements thereof, and showing the bal- 
ance thereof in his hands at the date of such ac- 
count and how invested. A certified copy of each 
of such accounts filed with the court shall be sent 
by the guardian to the office of the bureau having 
jurisdiction over the area in which such court is 
located. 

At the time such account is filed the clerk of 
superior court shall require the guardian to ex- 
hibit to the court all investments and bank state- 
ments showing cash balance and the clerk of supe- 
rior court shall certify on the original account 
and the certified copy which the guardian sends 
the bureau that an examination was made of all in- 
vestments and cash balance and that same are cor- 
rectly stated in the account. If objections are 
raised to such an accounting, the court shall fix a 
time and place for the hearing thereon not less 
than fifteen days nor more than thirty days from 
the date of filing such objections, and notice shall 
be given by the court to the aforesaid bureau office 
and state service officer by mail not less than 
fifteen days prior to the date fixed for the hear- 
ing. Notice of such hearing shall also be given 
to the guardian. (1929, c. 33, s. 10; 1933, c. 262, 
s. 1.) 

Editor's Note.— Public Laws of 1933, c. 262, omitted the 
last two sentences of this section as it formerly read and 
inserted the last three sentences of the present section in 
lieu thereof. The next to the last and the last sentence as 
they now read are practically the same as the omitted pro- 
vision. The third from the last sentence is new with the 
amendment. 

§ 2202(13). Investment of funds. — Every guard- 
ian shall invest the funds of the estate in any of 
the following securities: 

(a) United States government bonds. 

(b) State of North Carolina bonds issued 
since the year one thousand eight hundred 
seventy-two. 

(c) By loaning the same upon real estate se- 
curities in which the guardian has no interest, 
such loans not to exceed fifty per cent (50%) of 
the actual appraised or assessed value, whichever 
may be lower, and said loans when made to be 
evidenced by a note, or notes, or bond, or bonds, 
under seal of the borrower and secured by first 
mortgage or first deed of trust. Said , guardian 
before making such investment on real estate 
mortgages shall secure a certificate of title from 
some reputable attorney certifying that the same 
is the first lien on real estate and also set- 

[' 



ting forth the tax valuation thereof for the 
current year: Provided, said guardian may pur- 
chase with said funds a home or farm for the 
sole use of said ward or his dependents upon pe- 
tition and order of the clerk of superior court, 
said order to be approved by the resident or 
presiding judge of the superior court, and pro- 
vided further that copy of said petition shall be 
forwarded to said bureau before consideration 
thereof by said court. 

It shall be the duty of guardians who shall 
have funds invested other than as provided for 
in this section to liquidate same within one year 
from the passage of this law: Provided, how- 
ever, that upon the approval of the judge of the 
superior court, either residing in or presiding over 
the courts of the district, the clerk of the su- 
perior court may authorize the guardian to ex- 
tend from time to time, the time for sale or col- 
lection of any such investments; that no extension 
shall be made to cover a period of more than 
one year from the time the extension is made. 

The clerk of the superior court of any county 
in the state or any guardian who shall violate 
any of the provisions of this section shall be guilty 
of a misdemeanor, punishable by fine or impris- 
onment or both in the discretion of the court. 
(1929, c. 33, s. 14; 1933, c. 262, s. 2.) 

Editor's Note. — Prior to the amendment by Public Laws 
1933, c. 262, this section merely provided that the guardian 
should invest the funds as allowed by the law or approved 
by the court. 



CHAPTER 41 

HABEAS CORPUS 

Art. 6. Proceedings and Judgment 

§ 2234. Proceedings on return; facts examined; 
summary hearing of issues. 

Hearing Not Perfunctory. — The words "if issue be taken 
upon, the material facts . . . the judge shall proceed in 
a summary way to hear the allegations and proofs of both 
sides," preclude the idea that such hearing shall be per- 
functory and merely formal. In re Bailey, 203 N. C. 362, 
365, 166 S. E. 165. 

Discretion of Judge.— See In re Bailey, 203 N. C. 362, 367, 
166 S. E. 165, following statement under this catchline in 
Code of 1931. 

Art. 7. Habeas Corpus for Custody of Children in 
Certain Cases 

§ 2241. Custody as between parents in certain 
cases; modification of order. 

Action by Father eigainst Grandmother. — Where the father 
of a child brings a writ of habeas corpus against the grand- 
mother for the custody of the child but the contest is to all 
intents and purposes between the husband and wife for the 
custody of the child the writ comes within the spirit and 
letter of this section. In re Ten Hoopen, 202 N. C. 223, 162 
S. E. 619. 



CHAPTER 43 

INSANE PERSONS AND INCOMPETENTS 

Art. 2. Guardianship and Management of Estates 
of Incompetents 

§ 2285. Inquisition of lunacy; appointment of 
guardian. — ^Any person, in behalf of one who is 
deemed an idiot, inebriate, or lunatic, or incom- 
petent from want of understanding to manage 
his own affairs by reason of the excessive use of 
intoxicating drinks, or other cause, may file a 

9] 



§ 2304(f) 



INSANE PERSONS AND INCOMPETENTS 



§ 2304(n) 



petition before the clerk of the superior court of 
the county where such supposed idiot, inebriate 
or lunatic resides, setting forth the facts, duly 
verified by the oath of the petitioner; whereupon 
such clerk shall issue an order, upon notice to 
the supposed idiot, inebriate or lunatic, to the 
sheriff of the county, commanding him to sum- 
mon a jury of twelve men to inquire into the 
state of such supposed idiot, inebriate or lunatic. 
Upon the return of the sheriff summoning said 
jury, the clerk of the superior court shall swear 
and organize said jury and shall preside over 
said hearing, and the jury shall make return of 
their proceedings under their hand to the clerk, 
who shall file and record the same; and he shall 
proceed to appoint a guardian of any person so 
found to be an idiot, inebriate, lunatic, or in- 
competent person by inquisition of a jury, as in 
cases of orphans. 

Either the applicant or the supposed idiot, in- 
ebriate, lunatic, or incompetent person may ap- 
peal from the finding of said jury to the next 
term of the superior court, when the matters at 
issue shall be regularly tried de novo before a 
jury, and pending such appeal, the clerk of the 
superior court shall not appoint a guardian for 
the said supposed idiot, inebriate, lunatic, or in- 
competent person, but the resident judge of the 
district, or the judge presiding in the district, 
may in his discretion appoint a temporary re- 
ceiver for the alleged incompetent pending the 
appeal. The trial of said appeal in the superior 
court shall have precedence over all other causes. 

The jury shall make return of their proceed- 
ings under their hands to the clerk, who shall file 
and record the same; and he shall proceed to ap- 
point a guardian of any person so found to be an 
idiot, inebriate, lunatic or incompetent person by 
inquisition of a jury, as in cases of orphans. If 
the person so adjudged incompetent shall be an 
inebriate within the definition of section two 
thousand two hundred and eighty-four, the clerk 
shall proceed to commit said inebriate to the de- 
partment for inebriates at the state hospital in 
Raleigh for treatment and cure. He shall for- 
ward to the superintendent of said state hospital 
a copy of the record required herein to be made, 
together with the commitment, and these shall 
constitute the authority to said superintendent 
to receive and care for and cure said inebriate. 
The expenses of the care and cure of said inebri- 
ate shall constitute a charge against the estate 
in the care of his guardian. If, however, such 
estate is not large enough to pay such expenses, 
the same shall be a valid charge against the 
county from which said inebriate is sent. Pro- 
vided, where the person is found to be incompe- 
tent from want of understanding to manage his 
affairs, by reason of physical and mental weak- 
ness on account of old age and/or disease and/or 
other like infirmities, the clerk may appoint a 
trustee instead of guardian for said person. The 
trustee appointed shall be subject to the laws 
now or which hereinafter may be enacted for 
the control and handling of estates by guard- 
ians. The clerks of the superior courts who 
have heretofore appointed guardians for persons 
described in this proviso are hereby authorized 
and empowered to change said appointment 
from guardian to trustee. The sheriffs of the 
several counties to whom a process is directed 



under the provisions of this section shall serve 
the same without demanding their fees in ad- 
vance. And the juries of the several counties 
upon whom a process is served under the pro- 
visions of this section shall serve and make their 
returns without demanding their fees in advance. 
(Rev., s. 1890; Code, s. 1670; C. C. P., s. 473; 
1919, c. 54; 1921, c. 156, s. 1; 1929, c. 203, s. 1; 
1933, c. 192.) 

Editor's Note.— Public Laws 1933, c. 192, added the last 
two sentences abolishing advanced fees of sheriffs and ju- 
ries. 

Art. 5. Detention, Treatment, and Cure of 
Inebriates 

§ 2304(f). Department for inebriates It shall 

be the duty of trustees and superintendent of 
the state hospital at Raleigh to prepare and set 
apart a department for such inebriates on or be- 
fore the first day of May, one thousand nine 
hundred and twenty-two: Provided that, if in 
the course of care and treatment of said inebriates 
it developes that they have criminal, mental, or 
other symptoms indicating they can not be 
properly taken care of in this department, the 
superintendent of the hospital is hereby author- 
ized to transfer such patients to any other de- 
partment under his care, that, in his opinion, the 
circumstances may justify. (1921, c. 156, s. 7; 
1933, c. 341.) 

Editor's Note. — Public Laws of 1933, c. 341, added the pro- 
viso relating to inebriates in tKe state hospital at Raleigh. 

Art. 6. Sterilization of Persons Mentally 
Defective 



§ 2304(h) -2304(1): 

1933, c. 224. 



Repealed by Public Laws 



§ 2304(m). State institutions authorized to 
sterilize mental defectives. — The governing body 
or responsible head of any penal or charitable 
institution supported wholly or in part by the 
state of North Carolina, or any subdivision there- 
of, is hereby authorized and directed to have the 
necessary operation for asexualization, or sterili- 
zation, performed upon any mentally diseased, 
feebleminded or epileptic inmate or patient there- 
of, as may be considered best in the interest of 
the mental, moral, or physical improvement of 
the patient or inmate, or for the public good: 
Provided, however, that no operation described 
in this section shall be lawful unless and until 
the provisions of this article shall first be com- 
plied with. (1933, c. 224, s. 1.) 

Constitutionality. — The Act of 1929, c. 34, appearing in the 
Code of 1931 as §§ 2304(h) to 2304(1), was held unconstitu- 
tional, being in violation of the provisions of the Fourteenth 
Amendment, § I, of the Constitution of the United States, 
and of the State Constitution, Art. I, § 17, there being no 
provision in the statute giving a person ordered to be 
sterilized notice and a hearing or affording him the right 
to appeal to the courts. Brewer v. Valk, 204 N. C. 186, 
167 S. E. 638. The defect does not exist in the present 
statute. See § 2304(y). 

§ 2304(n). Operations on mental defectives not 
in institutions. — It shall be the duty of the board 
of commissioners of any county of North Caro- 
lina, at the public cost and expense, to have one 
of the operations described in section 2304(m), 
performed upon any mentally diseased, feeble- 
minded or epileptic resident of the county, not 
an inmate of any public institution, upon the re- 
quest and petition of the superintendent of pub- 
lic welfare or other similar public official per- 



[80] 



§ 2304(o) 



INSANE PERSONS AND INCOMPETENTS 



§ 2304(t) 



forming in whole or in part the functions of such 
superintendent, or of the next of kin, or the 
legal guardian of such mentally defective person: 
Provided, however, that no operation described 
in this section shall be lawful unless and until 
the provisions of this article shall be first com- 
plied with. (1933, c. 334, s. 2.) 

§ 2304(o). Restrictions on such operations. — 

No operation under this article shall be per- 
formed by other than a duly qualified and regis- 
tered North Carolina physician or surgeon, and 
by him only upon a written order signed after 
complete compliance with the procedure outlined 
in this act by the responsible executive head of 
the institution or board, or the superintendent 
of public welfare, or other similar official per- 
forming in whole or in part the functions of such 
superintendent, or the next of kin or legal guard- 
ian having custody or charge of the feeble- 
minded, mentally defective or epileptic inmate, 
patient or non-institutional individual. (1933, c. 
224, s. 3.) 

§ 2304(p). Prosecutors designated; duties. — 

If the person upon whom the operation is to be 
performed is an inmate or patient of one of the 
institutions mentioned in section 2304(m), the 
executive head of such institution or his duly 
authorized agent shall act as prosecutor of the 
case. If the person to be operated upon is not 
an inmate of any such public institution, then 
the superintendent of welfare or such other of- 
ficial performing in whole or in part the functions 
of such superintendent of the county of which 
said inmate, patient, or non-institutional individ- 
ual to . be sterilized is a resident, shall be the 
prosecutor. It shall be the duty of such prose- 
cutor promptly to institute proceedings as pro- 
vided by this article in any or all of the following 
circumstances: 

1. When in his opinion it is for the best in- 
terest of the mental, moral or physical improve- 
ment of the patient, inmate, or non-institutional 
individual, that he or she be operated upon. 

2. When in his opinion it is for the public good 
that such patient, inmate or non-institutional 
individual be operated upon. 

3. When in his opinion such patient, inmate, 
or non-institutional individual would be likely, 
unless operated upon, to procreate a child or 
children who would have a tendency to serious 
physical, mental, or nervous disease or deficiency. 

4. When requested to do so in writing by the 
next of kin or legal guardian of such patient, in- 
mate or non-institutional individual. 

5. In all cases as provided for in section 
2304(ff). (1933, c. 224, s. 4.) 

§ 2304(q). Eugenics board of N. C. created. — 

There is hereby created the eugenics board of 
North Carolina. All proceedings under this ar- 
ticle shall be begun before the said eugenics 
board. This board shall consist of five members 
and shall be composed of: (1) the commissioner 
of public welfare of North Carolina, (2) the 
secretary of the state board of health of North 
Carolina, (3) the chief medical officer of an in- 
stitution for the feebleminded or insane of the 
state of North Carolina, not located in Raleigh, 
(4) the chief medical officer of the state hospital 
at Raleigh, (5) the attorney general of the state 
of North Carolina. Any one of these officials 



may for the purpose of a single hearing delegate 
his power to act as a member of said board to 
an assistant: Provided, said delegation is made 
in writing, to be included as a part of the perma- 
nent record in said case. The said board shall 
from time to time elect a chairman from its own 
membership and adopt and from time to time 
modify rules governing the conduct of proceed- 
ings before it, and from time to time select the 
member of the said board designated above as 
the chief medical officer of an institution for the 
feebleminded or insane of the state of North 
Carolina not located in Raleigh. (1933, c. 224, 
s. 5.) 

§ 2304(r). Quarterly meetings. — The board of 
eugenics shall meet at least quarterly in each 
year in Raleigh for the purpose of hearing all 
cases that may be brought before it and shall 
continue in session with appropriate adjourn- 
ments until all current applications and other 
pending business have been disposed of. The 
members shall receive no additional compensa- 
tion for their services. (1933, c. 224, s. 6.) 

§ 2304(s). Secretary of board and duties. — The 

board shall appoint a secretary not a member 
of the board who shall conduct the business of 
the board between the times of the regular meet- 
ings. Such secretary shall receive all petitions, 
keep the records, call meetings, and in general 
act as the executive of said board in such matters 
as may be delegated to him by said board. (1933, 
c. 224, s. 7.) 

§ 2304(t). Proceedings before board. — -Proceed- 
ings under this article shall be instituted by pe- 
tition of the said prosecutor to the said eugenics 
board. Such petition shall be in writing, signed 
by the petitioner and duly verified by his affidavit 
to the best of his knowledge, information and 
belief. It shall contain the history of the inmate 
or patient as shown in the records of the institu- 
tion, or if he is not in an institution, then the 
complete medical history of the case of the in- 
dividual resident so far as it bears upon the 
recommendations for asexualization or steriliza- 
tion, and setting forth the particular reasons why 
asexualization or sterilization is recommended. 
This history shall be verified by the affidavit of at 
least one competent physician who has had actual 
knowledge of the case and who in the cases of 
inmates or patients of the institutions described 
in section 2304(m) may be a member of the medi- 
cal staff of said institution. The petition shall 
further contain an adequate social case history of 
the circumstances surrounding the inmate's, pa- 
tient's, or individual resident's life in so far as 
such circumstances may bear upon the question 
as to whether said inmate, patient, or individual 
resident is likely to procreate a child or children. 
The prayer of said petition shall be that an or- 
der be entered by said board requiring the peti- 
tioner to perform, or to have performed by some 
competent physician or surgeon to be designated 
by him in said petition, or by said board in its 
order, upon said inmate or patient or individual 
resident named in said petition in its discretion 
that one of the operations specified in section 
2304(m) which shall be best suited to the in- 
terests of the said inmate, patient or individual 
resident or to the public good. (1933, c. 224, 
s. 8.) 



N. C. Supp.— 6 



[81] 



§ 2304(u) 



INSANE PERSONS AND INCOMPETENTS 



§ 2304,(x) 



§ 2304 (u). Copy of petition served on patient 

— A copy of said petition, duly certified by the 
secretary of the said board to be correct, must be 
served upon the inmate, patient or individual 
resident, together with a notice in writing signed 
by the secretary of the said board designating 
the time and place not less than fifteen days be- 
fore the presentation of such petition to said 
board when and where said board will hear and 
act upon such petition. 

A copy of said pe'tition, duly certified to be 
correct, and the said notice must also be served 
upon the legal or natural guardian and next of 
kin of the inmate, patient or individual resident. 
If no near relative is known, the copy and notice 
shall be sent to the solicitor of the county in 
which the inmate, patient or individual resident 
resides, and it shall be his duty to protect the 
rights and best interests of the said inmate, 
patient or individual resident. 

If there is no next of kin and no solicitor in 
said county, or if there is no known guardian of 
said inmate, patient, or individual resident and 
the said inmate, patient or individual resident is 
of such mental condition as not to be competent 
reasonably to conduct his own affairs, then the 
said prosecutor shall apply to the superior court 
of the county in which the inmate, patient or in- 
dividual resident resides or to the judge thereof 
in vacation, who shall appoint some suitable per- 
son to act as guardian of the said inmate during 
and for the purposes of proceedings under this 
act, to defend the rights and interests of the said 
inmate, patient or individual resident. And such 
guardian shall be served likewise with a copy of 
the aforesaid petition and notice, and shall under 
all circumstances be given at least fifteen days' 
notice of said hearing. Such guardian may be 
removed or discharged at any time by the said 
court or the judge thereof in vacation and a new 
guardian appointed and substituted in his place. 

If the said inmate or patient be under twenty- 
one years of age and have a living parent or 
parents whose names and addresses are known 
or can by reasonable investigation be learned by 
said prosecutor, they or either of them, as the 
case may be, shall be served likewise with a copy 
of said petition and notice and shall be entitled 
to at least fifteen days' notice of the said hear- 
ing. (1933, c. 224, s. 9.) 

§ 2304(v). Consideration of matter by board. — 

The said board at the time and place named in 
said notice, with such reasonable continuances 
from time to time and from place to place as 
the said board may determine, shall proceed to 
hear and consider the said petition and evidence 
offered in support of and against the same; 
Provided, that the said board shall give oppor- 
tunity to said inmate, patient or individual resi- 
dent to attend the said hearings in person if de- 
sired by him or if requested by his guardian or 
next of kin, or the solicitor. 

The said board may receive and consider as 
evidence at the said hearings the commitment 
papers and other records of the said inmate or 
patient with or in any of the aforesaid institu- 
tions as certified by the superintendent or execu- 
tive official, together with such other evidence 
as may be offered by any party to the proceed- 
ings. 

Any member of the said board shall have power 

[ 82 



for the purposes of this article to administer 
oaths to any witnesses at such hearing. 

Depositions may be taken, as in other civil 
cases, by any party after due notice and read in 
evidence, if otherwise pertinent. 

Any party to the said proceedings shall have 
the right to be represented by counsel at such 
hearings. 

A stenographic transcript of the proceedings at 
such hearings duly certified by the petitioner and 
the inmate, patient or individual resident, or his 
guardian or next of kin, or the solicitor, shall be 
made and preserved as part of the records of the 
case. (1933, c. 224, s. 10.) 

§ 2304(w). Board may deny or approve peti- 
tion. — The said board may deny the prayer of 
the said petition or if, in the judgment of the 
board, the case falls within the intent and mean- 
ing of one or more of the circumstances men- 
tioned in section 2304(p), and an operation of 
asexualization or sterilization seems to said board 
to be for the best interest of the mental, moral 
or physical improvement of the said patient, in- 
mate or individual resident or for the public 
good, it shall be the duty of the board to ap- 
prove said recommendation in whole or in part 
or to make such order as under all the circum- 
stances of the case may seem appropriate, with- 
in fifteen days after the conclusion of said hear- 
ings, and to send to the prosecutor a written 
order, signed by at least three members of the 
board, directing him to proceed with the opera- 
tion as provided in this article. Said order shall 
contain the name of the specific operation which 
is to be performed and the date when said opera- 
tion is to be performed. 

If the board disapproves the petition, the case 
may not be brought up again except on the re- 
quest of the inmate, patient, or individual resi- 
dent, or his guardian, or one or more of his next 
of kin, husband, wife, father, mother, brother, or 
sister, until one year has elapsed. 

Nothing in this act shall be construed to em- 
power or authorize the board to interfere in any 
manner with the right of the patient, inmate, or 
individual resident, or his guardian or next of 
kin to select a competent physician of his own 
choice for consultation or operation at his own 
expense. (1933, c. 224, s. 11.) 

§ 2304(x). Orders may be sent parties by 
registered mail; consenting to operation. — Any 

order granting the prayer of the petition, in 
whole or in part, may be delivered to the peti- 
tioner by registered mail, return receipt de- 
manded, to all parties in the case, including the 
legal guardian, the solicitor and the next of kin 
of the inmate, patient, or individual resident. It 
shall be the duty of the said guardian, the solic- 
itor and the next of kin to protect by such 
measures as may seem to them in their sole dis- 
cretion sufficient and appropriate the rights and 
best interests of the said inmate, patient, or in- 
dividual resident. 

If the inmate, patient or individual resident, or 
the next of kin, legal guardian, solicitor of the 
county, and guardian appointed as herein pro- 
vided, after the said hearing but not before, shall 
consent in writing to the operation as ordered by 
the board, such operation shall take place at 

] 



§ 2304(y) 



INSANE PERSONS AND INCOMPETENTS 



§ 2304(ff) 



such time as the said prosecutor petitioning shall 
designate. (1933, c. 224, s. 12.) 

§ 2304 (y). Right of appeal to superior court. 

— If it appears to the inmate, patient or individual 
resident, or to his or her representative, guard- 
ian, parent or next of kin, or to the solicitor, that 
the proceedings taken are not in accordance with 
the law, or that the reasons given for asexualiza- 
tion or sterilization are not adequate or well 
founded, or for any other reason the order is 
not legal, or is not legal as applied to this in- 
mate, patient or individual resident, he or she 
may within fifteen days from the date of such 
order have an appeal of right to the superior 
court of the county in which said inmate or 
patient resided prior to admission to the institu- 
tion, or the county in which the non-institutional 
individual resides. This appeal may be taken by 
giving notice in writing to any member of the 
board and to the other parties to the proceed- 
ing, including the doctor who is designated to 
perform the said operation. Upon the giving of 
this notice the petitioner within fifteen days 
thereafter shall cause a copy of the petition, no- 
tice, evidence and orders of the said board certi- 
fied by any member thereof to be sent to the 
clerk of the said court, who shall file the same 
and docket the appeal to be heard and determined 
by the said court as soon thereafter as may be 
practicable. 

The said superior court in determining such an 
appeal may consider the record of the proceed- 
ings before the said board, including the evidence 
therein appearing, together with such other legal 
evidence as may be offered to the said court by 
any party to the appeal. 

Upon such appeal the said superior court may 
affirm, revise, or reverse the orders of the said 
board appealed from and may enter such order 
as it deems just and right and which it shall cer- 
tify to the said board. 

The pendency of such appeal shall automati- 
cally, and without more, stay proceedings under 
the order of the said board until the appeal be 
completely determined. Should the decision of 
the superior court uphold the plaintiff's objec- 
tion, such decision will annul the order of the 
board to proceed with the operation, and the 
matter may not be brought up again until one 
year has elapsed except by the consent of the 
plaintiff or his next of kin, or his legal repre- 
sentatives. Should the court affirm the order of 
the board, then, if no notice of appeal to the 
supreme court is filed within ten days after such 
decision, said board's recommendation as af- 
firmed shall be put into effect at a time fixed by 
the original prosecutor or his successor in office 
and the inmate, patient or individual shall be 
asexualized or sterilized as provided in this 
article. 

In this appeal the person for whom an order 
of asexualization or sterilization has been issued 
shall be designated as the plaintiff, and the prose- 
cutor presenting the original petition shall be 
designated as defendant. (1933, c. 224, s. 13.) 

See note to § 2304(m). 

§ 2304 (z). Record before board conclusive as 
to facts; appeal costs — In the proceedings be- 
fore the superior court the record of the proceed- 
ings before said board shall be conclusive and 



binding as to all questions of fact. The superior 
court shall pass upon and review only questions 
of law. 

The cost of appeal, if any, to the superior or 
higher courts, shall be taxed as in civil cases. 
If the case is finally determined in favor of the 
plaintiff, the costs shall be paid by the county. 
(1933, c. 224, s. 14.) 

§ 2304(aa). Appeal to supreme court. — Any 

party to such appeal to the superior court may,, 
within ten days after the date of the final order 
therein, apply for an appeal to the supreme courts 
which shall have jurisdiction to hear and de- 
termine the same upon the record of the pro- 
ceedings in the superior court and to enter such 
order as it may find the superior court should 
have entered. 

The pendency of an appeal in the supreme 
court shall operate as a stay of proceedings un- 
der any orders of the said board and the superior 
court until the appeal be determined by the said 
supreme court. (1933, c. 224, s. 15.) 

§ 2304 (bb). Civil or criminal liability of parties 
limited. — ■ Neither the said petitioner nor any 
other person legally participating in the execu- 
tion of the provisions of this article shall be li- 
able, either civilly or criminally, on account of 
such participation, except in case of negligence 
in the performance of said operation. (1933, c. 
224, s. 16.) 

§ 2304(cc). Necessary medical treatment un- 
affected by article. — Nothing contained in this 
article shall be construed so as to prevent the 
medical or surgical treatment for sound thera- 
peutic reasons of any person in this state, by a 
physician or surgeon licensed in this state, which 
treatment may incidentally involve the nullifica- 
tion or destruction of the reproductive functions. 
(1933, c. 324, s. 17.) 

§ 2304(dd). Permanent records of proceedings 
before board. — ^Records in all cases arising under 
this article shall be filed permanently with the 
secretary of the said eugenics board. Such rec- 
ords shall not be open to public inspection ex- 
cept for such purposes as the court may from 
time to time approve. (1933, c. 224, s. 18.) 

§ 2304(ee). Valid parts of act upheld; defini- 
tions. — ^This article is severable in its provisions; 
and the validity of any part, section, or provision 
of the same shall not be construed to affect the 
validity of any other part which may be given 
practical operation and effect without the in- 
valid part, section or provision. 

Where the inmates, patients or non-institu- 
tional individuals are referred to in this article 
as of the masculine or feminine gender, the same 
shall be construed to include the feminine or 
masculine gender as well. Wherever the term in- 
dividual resident appears in this article, it shall 
be construed to mean non-institutional individual. 
(1933, c. 224, s. 19.) 

§ 2304(ff). Discharge of patient from institu- 
tion. — Before any inmate or patient designated in 
sections 2304(m) and 2304(p), shall be released, 
paroled or discharged, it shall be the duty of the 
governing body or responsible head of any insti- 
tution above mentioned to comply with the pro- 
cedure set out in this article, whenever a written 



83 ] 



§ 2304(gg) 



INTEREST 



§ 2308 



request for the asexualization or sterilization of 
said inmate or patient is filed with the governing 
body or responsible head of the institution in 
which such inmate or patient has been legally 
confined. This written request may be made by 
any public official or by the legal guardian or 
next of kin of any inmate or patient not later than 
thirty days prior to the date of said parole or 
discharge. Upon the receipt of the signed ap- 
proval of the eugenics board as described in this 
article, it shall be the duty of said governing- 
board or responsible head to issue an order for 
the performance of the operation upon said in- 
mate or patient, and the operation must be per- 
formed before the release, parole or discharge of 
any such inmate or patient. (1933, c. 224, s. 20.) 

Art. 7. Temporary Care and Restraint of Inebri- 
ates, Drug Addicts and Persons Insane 

§ 2304(gg). Hospitals and sanatoriums may 
restrain and treat alcohol and drug addicts. — The 

superintendent, manager, or owner of any pub- 
lic or private hospital, sanatorium, or institution, 
upon the written request of two duly licensed 
physicians, not connected with any hospital, pub- 
lic or private, and the husband, wife, guardian, 
or in the case of an unmarried person having no 
guardian, by some one of the next of kin, may 
receive, care for and restrain in such hospital, 
sanatorium, or institution, as a patient, for a 
period not exceeding twenty days, any insane 
person needing immediate care and treatment; 
or any person needing immediate care, restraint 
and treatment because such person has become 
addicted to the intemperate use of narcotics, 
hypnotic drugs or alcoholic drinks, to such an 
extent that he has lost the power of self control. 
Such request for the admission of such patient 
shall be in writing and filed at such hospital, 
sanatorium, or institution, at the time of the re- 
ception of such patient, or within twenty-four 
hours thereafter, and such written request shall 
be held and considered as a commitment of such 
patient or person to said hospital, sanatorium, or 
institution, for a period of not exceeding twenty 
days. The superintendent, manager, or owner 
of such hospital, sanatorium, or institution shall 
not detain or restrain any person received as 
above provided for more than twenty days and 
shall not be liable in damages to such person or 
his personal representative or guardian on ac- 
count of such restraint: Provided, the same is 
exercised and administered in a humane manner, 
without violence or personal injury. (1933, c. 
213, s. 1.) 

§ 2304(hh). Use of restraining devices limited. 
: — No restraint in the form of muffs or mitts 
with lock buckles, or waist straps, wristlets, ank- 
lets, or camisoles, head-straps, protection sheets 
or simple sheets when used for restraint or other 
device interfering with freedom shall be imposed 
upon any patient in such hospital, sanatorium, or 
institution, unless applied in the presence of the 
superintendent, or of the physician, or of an as- 
sistant physician of such hospital, sanatorium, or 
institution. Such device shall be applied onh^ in 
cases of extreme violence, active homicidal or 
suicidal intent, physical exhaustion, infectious dis- 
ease, or following an operation, or accident 
which has caused serious bodily injury, or to 
prevent injury to such patient or others, except 



that in cases if emergency restraint may be im- 
posed without the presence of the superintendent, 
physician or assistant physician; that every such 
emergency case, after the imposition of such re- 
straint, shall immediately be reported to the su- 
perintendent, or manager, physician, or assistant 
physician of such hospital, sanatorium or institu- 
tion, who shall iinmediately investigate the case 
and approve or disapprove the restraint imposed. 
(1933, c. 213, s. 2.) 

§ 2304 (ii). Civil liability for corrupt admissions. 

— ^Nothing contained in this article shall be held 
or construed to relieve from liability in any suit 
or action, instituted in the courts of this state, 
any husband, wife, guardian, physician, or assist- 
ant physician, to such person or patient on ac- 
count of collusion of such husband, wife, guard- 
ian, physician or assistant physician to unlaw- 
fully, wrongfully and corruptly commit any 
such person or patient to such hospital, sanato- 
rium, or institution, under the provisions of this 
article: Provided, that the provisions of this 
article shall not apply to pending litigation. 
(1933, c. 213, s. 3.) 



CHAPTER 44 

INTEREST 
§ 2305. Legal rate is six per cent. 

Applied in Hackney v. Hood, 203 N. C. 486, 166 S. E. 323. 

§ 2306. Penalty for usury; corporate bonds may 
be sold below par. 

I. GENERAL CONSIDERATION. 
The usury statute will be strictly construed, and usury 
must be pleaded. Dixon v. Smith, 204 N. C. 480, 168 S. 
E- 683. 

II. SUBSTANCE CONTROLS NATURE OF 
TRANSACTION. 
B. Specific Instances. 
Where an association charges a stockholder certain fines 
under § 5178, such fines cannot be alleged as interest paid 
on the loan from the corporation. Moore v. Mutual Build- 
ing, etc., Ass'n, 203 N. C. 592, 166 S. E. 597. 

VI. (PLEADING AND PRACTICE. 

As a Defense. — Where the payee of a promissory note or 
bond brings action thereon and the defendant sets up a de- 
duction on account of usury, within the plain intent and 
meaning of this section the plainfiff will not be entitled to 
recover the usurious charge. Pugh v. Scarboro, 200 N. C. 
59, 156 S. E. 149. 

Restraining Foreclosure. — The holder of a second mort- 
gage, able and willing to pay the amount of the debt secured 
by the first mortgage, but alleging usury, under this sec- 
tion, is entitled to have a restraining order against fore- 
closure continued until determination of the issue of usury. 
Wilson V. Union Trust Co., 200 N. C. 788, 158 S. E- 479. 

Effect of Consent Judgment. — ^Where a controversy be- 
tween the parties as to the amount of the debt has been set- 
tled by a consent judgment such judgment is conclusive and 
final as to any matter determined and cannot be impeached 
collaterally in another proceeding under this section. Rec- 
tor V. Suncrest Lbr. Co., 52 F. (2d) 946. 

Failure to Instruct as to Double Recovery Is Prejudi- 
cial. — The plaintiff in his action to recover for usurious rate 
of interest paid and received by the lender is entitled under 
this section to recover double the amount of the interest so 
paid and received, and an instruction to the jury that fails 
to give him this right is prejudicial to him and is reversible 
error. Bundy v. Commercial Credit Co., 200 N. C. 511, 512, 
157 S. E. 860. 

§ 2308. Obligations due guardians to bear com- 
pound interest. 

Security in Addition to That of Borrower. — 

A guardian will be held liable for any loss resulting from 
a loan made without taking any security, however solvent 
the debtor may have been when the loan was made. Bane 
v. Nicholson, 203 N. C. 104, 106, 164 S. E- 750. 



[84] 



§ 2309 



JURORS 



§ 2334 



§ 2309. Contracts, except penal bonds, and judg- 
ments to bear interest; jury to distinguish principal. 

After demand by a depositor or creditor of a bank for 
the payment of the amount due and refusal of the bank to 
make payment, the bank is liable for the amount of the 
claim plus interest at the rate of six per centum per annum. 
Hackney v. Hood, 203 N. C. 486, 166 S. E- 323. 



CHAPTER 45 

JURORS 

Art. 1. Jury List and Drawing of Original Panel 

§ 2312. Jury list from taxpayers of good char- 
acter. 

For act providing that nonpayment of taxes does not dis- 
qualify a juror in Macon County, see Public I^aws, 1933, 
c. 62. 

§ 2314. Manner of drawing panel for term from 

box. — ^At least twenty days before each regular 
or special term of the superior court, the board of 
commissioners of the county shall cause to be 
drawn from the jury box out of the partition 
marked No. 1, by a child not more than ten years 
of age, thirty-six scrolls except when the term of 
court is for the trial of civil cases exclusively, 
when they need not draw more than twenty-four 
scrolls. The persons whose names are inscribed 
on said scrolls shall serve as jurors at the term 
of the superior court to be held for the county 
ensuing such drawing, and for which they are 
drawn. The scrolls so drawn to make the jury 
shall be put into the partition marked No. 2. The 
said commissioners shall at the same time and in 
the same manner draw the names of eighteen 
persons who shall be summoned to appear and 
serve during the second week, and a like num- 
ber for each succeeding week of the term of said 
court, unless the judge thereof shall sooner dis- 
charge all jurors from further service. The said 
commissioners may, at the same time and in the 
same manner, draw the names of eighteen other 
persons, who shall serve as petit jurors for the 
week for which they are drawn and summoned. 
The trial jury which has served during each week 
shall be discharged by the judge at the close of 
said week, unless the said jury shall be then ac- 
tually engaged in the trial of a case, and then 
they shall not be discharged until the trial is de- 
termined: Provided, that regular jurors drawn, 
summoned, and the attendance upon any term of 
a superior court, regular or special, in any county, 
or upon any terms of a general county court or 
civil county court when not serving upon the 
trial of any case in the court to which he was 
summoned, may be ordered by the judge presid- 
ing in such court to attend and serve as a juror 
in the trial of any case pending in any other of 
said courts in such county, and shall be compe- 
tent to serve as a regular juror in such other 
court under the law applicable to trials by jury. 
This proviso shall only apply to the counties 
of Guilford, Wake, Forsyth, Buncombe, Catawba, 
Cabarrus, Iredell and Haywood. (Rev., s. 1959: 
Code, ss. 1737, 1731; 1889, c. 559; 1897, c. 117; 
1868-9, c. 175; 1868-9, c. 9, s. 6; 1806, c. 691; 1901, 
c. 636; 1901, c. 28, s. 3; 1903, c. 11; 1905, cc. 38, 
76, s. 4; 1905, c. 285; 1933, c. 89.) 

Editor's Note.— Public Laws 1933, c. 89, added the pro- 
viso, applicable in the eight counties enumerated, relating 
to service in the courts of another county. 



Art. 2. Petit Jurors; Attendance, Regulation 
and Privileges 

§ 2326. Causes of challenge to juror drawn 
from box. — -It .shall not be a valid cause of chal- 
lenge that a juror called from those whose names 
are drawn from the box is not a freeholder or has 
served upon the jury within two years prior to 
the court at which the case is tried, or has not 
paid the taxes assessed against him during the 
preceding two years. In other respects the cause 
of challenge shall be the same as now provided 
by law, and nothing herein shall modify any law 
authorizing jurors to be summoned from coun- 
ties other than the county trial. (1913, c. 31, ss. 
5, 7; 1933, c. 130.) 

Editor's Note. — 

Public Laws 1933, c. 130, inserted, at the end of the first 
sentence of this section, the clause "or has not paid the 
taxes assessed against him during the preceding two- 
years." 

Art. 4. Grand Jurors 

§ 2334. Grand juries in certain counties. — At 

the first fall and spring terms of the criminal 
courts held for the counties of Gaston, Guilford, 
Mecklenburg, Moore, Pitt, Richmond, New Han- 
over, McDowell, Durham, Cumberland, Colum- 
bus, Nash, Johnston, Vance, Wayne, Iredell, and 
Wake, grand juries shall be drawn, the presid- 
ing judge shall charge them as provided by law, 
and they shall serve during the remaining fall 
and spring terms, respectively. In the event of 
vacancies occurring in the grand jury of Pitt 
county, the judge holding the court of said county, 
may, in his discretion, order a new juror drawn 
to take the oaths prescribed and to fill any va- 
cancy occurring therein. 

At any time the judge of the superior court 
presiding over either the criminal or civil court 
of New Hanover, McDowell, Durham, and Cum- 
berland counties may call said grand jury to as- 
semble and may deliver unto said grand jury an 
additional charge. The said judge presiding over 
either the criminal or civil court of New Han- 
over, McDowell, Durham, or Cumberland coun- 
ties may at any time discharge said grand jury 
from further service, in which event he shall cause 
a new grand jury to be drawn which shall ser\ e 
during the remainder of the said fall or spring 
term. The first nine members of the grand jury 
chosen at the first term of the superior court of 
Cumberland county for the trial of criminal cases 
in the year of one thousand nine hundred twenty- 
two shall serve during the spring and fall terms, 
and at the first of such courts of the fall and 
spring terms thereaftef, nine additional jurors 
shall be chosen to serve for one year. 

At any time the judge of the superior court 
presiding over the criminal court of Columbus 
county may call said grand jury to assemble and 
may deliver unto said jury an additional charge. 
The said judge presiding over the criminal court 
of Columbus county may at any time discharge 
said grand jury from further service, and may 
cause a new grand jury to be drawn, which shall 
serve during the remainder o: the said fall and 
spring term. 

Every grand juror drawn and summoned in 
Robeson county shall serve for a period of twelve 
months. 

At the spring term of the criminal court held 
for the county of Gates, and for the county of 
[85] 



§ 2335 



LANDLORD AND TENANT 



§ 2355 



Henderson, grand jury shall be drawn, the pre- 
siding judge shall charge them as provided by law, 
and they shall serve for twelve (12) months: Pro- 
vided, that at any time the judge of the superior 
court presiding over the criminal courts of Gates 
county or Henderson county may call said jury 
to assemble and may deliver unto said grand jury 
an additional charge: Provided further, that the 
judge of the superior court presiding over the 
criminal courts of Gates county and of Hender- 
son county may at any time discharge said grand 
jury from further service, and may cause a new 
.grand jury to be drawn, which shall serve during 
Ihe remainder of the said twelve (12) months. 

At the April term of superior court held for the 
■county of Hoke a grand jury shall be drawn, the 
presiding judge shall charge it as provided by 
law, and it shall serve until the following April 
term, Hoke superior court: Provided, that at 
any time the judge of the superior court presid- 
ing over either criminal or civil court in said 
county may call said grand jury to assemble and 
may deliver unto said grand jury an additional 
charge: Provided further, that the judge of the 
superior court presiding over either criminal or 
civil court in said county may at any time dis- 
charge said grand jury from further service, in 
which event he shall cause a new grand jury to 
be drawn, which shall serve out the unfinished 
year. 

If it should appear to the board of commis- 
sioners of Union county, thirtj' days before the 
beginning of the term of superior court that be- 
gins on the third Monday after the first Monday 
in March, that the condition of the criminal 
docket, and the number of prisoners in jail, make 
it necessary that said March term should be used 
as a criminal term, the said board of commis- 
sioners are authorized and empowered within 
their discretion to draw a grand jury for said 
term, and to give thirty days' notice in some lo- 
cal paper that criminal cases would be tried at 
said term, and all criminal process and under- 
takings returnable to a subsequent term shall be 
returnable to said March term. A grand jury 
for Union county shall be selected at each Jan- 
uary term of the superior court in the usual man- 
ner by the presiding judge, which said grand jury 
shall serve for a period of one year from the 
time of their selection. (1913, c. 196; 1917, cc. 
116, 118; 1919, cc. 113, 187; Ex. Sess. 1920, c. 39; 
1921, cc. 18, 55, 69, 72; Ex. Sess. 1921, c. 15; 1923, 
cc. 11, 15, 104, 115; 1925, c. 24; 1929, c. 52, ss. 
1, 2; 1931, cc. 43, 97, 130, 131, 237; 1933, cc. 29, 92.) 

Editor's Note. — 

Public Laws of 1933, cc. 29, 92, made the fourth para- 
graph of this section, formerly applicable in Gates county 
only, applicable to Henderson county. The provision, at the 
end of this section, relating to the grand jury and Union 
county, was also inserted. For act relating to fees of grand 
jurors applicable in Scotland county only, see Public Laws 
1924, R.x. Sess., c. 28 as amended by Public Laws 1933, c. 
138. 

§ 2335. Exceptions for disqualifications. 

Indictment Not Quashed for Failure to Pay Taxes. — The 

passage of this section, immediately following the decision 
of this court in Breese v. United States, 143 F. 250, was evi- 
dently for the purpose of removing the disqualification of 
grand jurors, based upon failure to pay taxes for the pre- 
ceding year, in cases where they actually serve upon the 
grand jury and pass upon bills of indictment; and there is 
no reason why it should not be given this interpretation. 
Davis v. United States, 49 F. (2d) 269, 270. 



Foreman may administer oaths to wit- 



§ 2336. 
nesses. 

Section Directory Merely.^See State v. Avant, 202 N. C. 
680, 163 S. E. 806, following statement under this catchline 
in Code of 1931. 

Art. 5. Special Venire 

§ 2338. Special venire to sheriff in capital 
cases. 

Challenge for Cause. — Under this section where a special 
venire has been ordered by the court for the trial of a capi- 
tal felony, such venire, is selected by the sheriff in his dis- 
cretion, not from the jury box, and by § 4635 are subject to 
the same challenges for cause as tales jurors. State v. 
Avant, 202 N. C. 680, 163 S. F. 806. 



CHAPTER 46 

LANDLORD AND TENANT 

Art. 1. General Provisions 

§ 2352. Lessee may surrender, where building 
destroyed or damaged. 

Where the terms of a lease fully provide for the rights of 
the parties upon destruction of the property by fire such 
rights will be determined in accordance with the written 
agreement, without reference to this section, or the common 
law. Grant v. Borden, 204 N. C. 415, 168 S. E- 492. 

Art. 2. Agricultural Tenancies 

§ 2355. Landlord's lien on crops for rents, ad- 
vances, etc., enforcement. — When lands are 
rented or leased by agreement, written or oral, 
for agricultural purposes, or are cultivated by a 
cropper, unless otherwise agreed between the 
parties to the lease or agreement, any and all 
crops raised on said lands shall be deemed and 
held to be vested in possession of the lessor or 
his assigns at all times, until the rents for said 
lands are paid and until all the stipulations con- 
tained in the lease or agreement are performed, 
or damages in lieu thereof paid to the lessor or 
his assigns, and until said party or his assigns 
is paid for all advancements made and expenses 
incurred in making and saving said crops. A 
landlord to entitle himself to the benefit of the 
lien herein provided for, must conform as to the 
prices charged for the advance to the provisions 
of the article Agricultural Liens, in the chapter 
Liens. 

This lien shall be preferred to all other liens, 
and the lessor or his assigns is entitled, against 
the lessee or cropper, or the assigns of either, 
who removes the crop or any part thereof from 
the lands without the consent of the -lessor or 
his assigns, or against any other person who 
may get possession of said crop or any part there- 
of, to the remedies given in an action upon a 
claim for the delivery of personal property. 

Provided, that when advances have been made 
by the federal government or any of its agencies, 
to any tenant or tenants on lands under the con- 
trol of any guardian, executor and/or administra- 
tor for the purpose of enabling said tenant or 
tenants to plant, cultivate and harvest crops 
grown on said land, the said guardian, executor, 
and/or administrator may waive the above lien 
in favor of the federal government, or any of 
its agencies, making said advances. (Rev., s. 
1993; Code, s. 1754; 1896-7, 283; 1917, c. 134; 
1933, c. 219.) 

Editor's Note.— Public Laws 1933, c. 219, added the pro- 
viso now appearing at the end of this section. 



[86] 



§ 2365 



LIENS 



§ 2445 



§ 



Art. 3. Summary Ejectment 
2365. Tenant holding over may be dispos- 



sessed in certain cases. 

I. APPLICATION AND SCOPE. 

For an act, applicable in Johnson county only, providing 
that the landlord shall pay all just set-offs and counter- 
claims before execution, see Public Laws 1933, c. 390. 

Relation of Landlord and Tenant Necessary. — This section 
applies only where the conventional relationship of landlord 
and tenant exists, and when title to the property is in issue, 
the jurisdiction of the justice of the peace is ousted, and the 
proceeding- is properly dismissed as in case of nonsuit upon 
appeal to the Superior Court. Prudential Ins. Co. v. Totten, 
203 N. C. 431, 166 S. E- 316. 

Consideration of Equitable Defenses. — A justice of the 
peace has jurisdiction of a summary action in ejectment, 
and may determine the questions of tenancy and holding 
over, and while he has no equitable jurisdiction, he may 
consider equitable defenses set up in summary ejectment in 
so far as they relate to the issue of tenancy. Farmville Oil, 
etc.. Co. V. Bowen, 204 N. C. 375, 168 S. E. 211. 

§ 2366. Local: Refusal to perform contract 
ground for dispossession. — When any tenant or 
cropper who enters into a contract for the rental 
of land for the current or ensuing year willfully 
neglects or refuses to perform the terms of his con- 
tract without just cause, he shall forfeit his right of 
possession to the premises. This section applies 
only to the following counties: Alleghany, Anson, 
Beaufort, Bertie, Bladen, Burke, Cabarrus, Cam- 
den, Carteret, Caswell,' Chatham, Chowan, Cleve- 
land, Columbus, Craven, Cumberland, Currituck, 
Duplin, Edgecombe, Franklin, Gaston, Gates, 
Greene, Halifax, Harnett, Hertford, Hyde, Jack- 
son. Johnston, Jones, Lenoir, Martin, Mecklen- 
burg, Montgomery, Nash, Northampton, Onslow, 
Pender, Perquimans, Pitt, Polk, Randolph, Robe- 
son, Rockingham, Rowan, Rutherford, Samp- 
son, Swain, Tyrrell, Union, Wake, Wayne, Wash- 
ington, Wilson, Yadkin, Moore, Surry, Stokes and 
Pasquotank. (Rev., s. 2001, subsec. 4; Code, ss. 
1766, 1777; 4 Geo. II, c. 28; 1868-9, c. 156, s. 19; 
1903, cc. 297, 299, 820; 1907, cc. 43, 153; 1909, cc. 
40, 550; 1931, cc. 50, 194, 446; 1933, cc. 86, 485.) 

Editor's Note.— 

Public Laws 1933, cc. 85, 485, added Polk and Pasquotank 
counties to this section. 

§ 2373. Undertaking on appeal; when to be in- 
creased. — Either party may appeal from the judg- 
ment of the justice, as is prescribed in other 
cases of appeal from the judgment of a justice; 
except in the counties of Iredell, Mecklenburg, 
Craven, Granville, Watauga, Davie, and Swain, 
upon appeal to the superior court either plaintiff 
or defendant may demand that the same shall be 
tried at the first term of said court after said ap- 
peal is docketed in said court, and said trial shall 
have precedence in the trial of all other cases, ex- 
cept the cases of exceptions to homesteads: Pro- 
vided, that said appeal shall have been docketed 
at least ten days prior to the convening of said 
court: Provided, further, that the presiding judge, 
in his discretion, may take up for trial in advance 
any pending case in which the rights of the par- 
ties or the public require it; but no execution 
commanding the removal of a defendant from 
the possession of the demised premises shall be 
suspended until the defendant gives an under- 
taking in an amount not less than one year's rent 
of the premises, with sufficient surety, who shall 
justify and be approved by the justice, to be void 
if the defendant pays any judgment which in that 
or any other action the plaintiff may recover for 
rent, and for damages for the detention of the 



land. At any term of the superior court of the 
county in which such appeal is docketed after 
the lapse of one year from the date of the filing 
of the undertaking above mentioned, the tenant, 
after legal notice to that end has been duly exe- 
cuted on him, may be required to show cause 
why said undertaking should not be increased to 
an amount sufficient to cover rents and damages 
for such period as to the court may seem proper, 
and if such tenant fails to show proper cause and 
does not file such bond for rents and damages as 
the court may direct, or make affidavit that he 
is unable so to do and show merits, his appeal 
shall be dismissed and the judgment of the jus- 
tice of the peace shall be affirmed. (Rev., s. 3008; 
Code, s. 1772; 1868-9, c. 156, s. 25; 1883, c. 316; 
1921, c. 90; Ex. Sess. 1921, c. 17; 1933, c. 154.) 

Editor's Note. — 

Public Laws 1933, c. 154, struck out Cabarrus countv 
from the list of counties excepted. 



CHAPTER 49 

LIENS 

Art. 1. Mechanics', Laborers' and Materialmen's 
Liens 

§ 2435. On personal property repaired. 

Where the purchaser of an automobile gives the seller a 
title-retaining- contract to secure the balance of the purchaise 
price, and thereafter gives a second lien on the car to an- 
other, and later the second lienor takes possession from the 
purchaser without legal process and has the car repaired, 
the second lienor is not the o-wner or legal possessor of the 
car within the intent and meaning of this section, and the 
one making the repairs obtains no lien therefor under the 
statute and is not entitled to possession as against the first 
lienor. Willis v. Taylor, 201 N. C. 467, 160 S. E. 487. 

§ 2436. Laborer's lien on lumber and its prod- 
ucts. 

Editor's Note. — 

Under the provision of this section, prior to the amend- 
ment of 1929, persons who cut and log timber to a mill un- 
der a contract to do so at a fixed price are not entitled to 
a lien for such services, this interpretation of this section 
Ijeing strengthened by the fact that the amendment of 1929 
included within the meaning of the statute those who were 
engaged in logging to the mill. Graves v. Dockery, 200 N. 
C. 317, 156 S. E. 506. 

Art. 2. Subcontractors', etc., Liens and Rights 
against Owners 

§ 2438. Notice to owner; liability. 

Applied in Brown v. Burlington Hotel Corp., 202 N. C. 

82, 161 S. E. 735. 

§ 2440. Laborer, etc., may furnish statement of 
claim to owner; effect. 

Construction with Other Sections.— A letter to the owner 
setting forth the amount of the account for materials fur- 
nished the contractor and stating that other items were be- 
ing purchased on the account, and ofifering to furnish an 
itemized statement upon request is not a sufficient notice 
upon which to base a materialman's lien, under this sec- 
tion, requiring that an itemized statement be furnished the 
owner manifestly, §§ 2438, 2439, 2440, 2441, and 2442 must be 
construed together. Huske Hardware House v. Percival, 
203 N. C. 6, 164 S. E. 334. 

Assignment of Lien. — The statutory lien of a laborer or 
materialman under the provisions of this section, is assign- 
able as in case of ordinary business contracts. Horne-Wil- 
son v. Wiggins Bros., 203 N. C. 85, 164 S. E. 365. 

§ 2445. Contractor on municipal building to 
give bond; action on bond. 

Not Applicable to East Carolina Teachers' College. — 

While the board of trustees of the East Carolina Teachers' 
College is made a body corporate, it is not a municipal cor- 



§ 2459 



LIENS 



§ 2490 



poration within the meaning of this section. Hunt Mfg. Co. 
V. Hudson, 200 N. C. 541, 542, 157 S. E. 799. 

Provision That Action Must Be within Reasonable Time. 
— Under this section the provision in a bond for public con- 
struction that action thereon should be brought within rea- 
sonable time is valid. Horne-Wilson v. National Surety 
Co., 202 N. C. 73, 161 S. E. 726. 

Local Law Requiring Provision of Section Be Read in 
Bonds. — A local statute providing that the provisions of this 
section should be read into private construction bonds is in- 
valid. Plott Co. V. Ferguson Co., 202 N. C. 446, 163 S. 
E. 688. 

Not Applicable When Surety Takes over Contract. — A 
surety company on a contractor's bond for the erection of 
municipal buildings in taking over for its own protection 
the completion thereof, and dealing directly with the mate- 
rialmen upon its own credit changes its liability as a surety 
on the bond, and this section is not applicable. Hunt Mfg. 
Co. V. Hudson, 200 N. C. 541, 157 S. E- 799. 

Art. 4. Warehouse Storage Liens 
§ 2459. Liens on goods stored for charges. 

Application of Section. — This section applies to such per- 
sons, firms or corporations as operate warehouses as a busi- 
ness for compensation, and not to an isolated instance in 
which goods or chattels are left in a store or building of 
the claimant. Champion Shoe Machinery Co. v. Sellers, 197 
N. C. 30, 147 S. E. 674. 

Art. 8. Perfecting, Enforcing and Discharging 
Liens 

§ 2469. Claim of Hen to be filed; place of filing. 

Particularity of Claim Filed. — 
Same — Instances of Sufficiency. — 

In this case claim, or notice of lien, was not made out 
in sufficient detail, "specifying the . . . labor performed, 
and the time thereof," the wages he was to receive, how 
and when payable, etc. And further, it was not made to 
appear that said purported notice of claim was filed "in the 
office of the nearest justice of peace" as required by this 
section. Gainey v. Gainey, 203 N. C. 190, 191, 165 S. E. 
547. 

§ 2470. Time of filing notice. 

Question for Jury. — 

Whether the notice of claim of a lien was filed within 
the time prescribed by this section is a question for the 
jury where it appears from the evidence that later work 
was done under the original contract. Beaman v. Eliza- 
beth City Hotel Corp., 202 N. C. 418, 163 S. E- 117. 

§ 2471. Date of filing fixes priority. 

In General. — Liens of materialmen and laborers are stat- 
utory, and by the clear provisions of this section and § 2473 
the liens of parties furnishing labor and material under di- 
rect contract with the owner have priority in accordance 
with the time of filing notice of Hen with the justice of the 
peace or clerk. The right of pro rata payment on liens of 
subcontractors is distinguished on the basis of the statutory 
provisions, § 2442, no notice of lien being required to be 
filed with the justice of the peace or clerk in the case of 
subcontractors, notice to the owner being sufficient under 
the statute. Boykini v. Logan, 203 N. C. 196, 165 S. E. 680. 

Art. 9. Agricultural Liens for Advances 
§ 2480. Lien on crops for advances. 

II. PRIORITY OF LIENS. 
Precedence over a Prior Mortgage Lien. — 

A statutory agricultural lien for supplies and advance- 
ments during the current crop year, conforming to the re- 
quirements of this section both as to context and registra- 
tion, is superior to a prior registered chattel mortgage given 
to secure an antecedent debt, the chattel mortgage not be- 
ing in the required form to constitute a crop lien for sup- 
plies as contemplated by the section. Eastern Cotton Oil 
Co. V. Powell, 201 N. C. 351, 160 S. E. 292. 

§ 2485. Commission in lieu of interest, where 
advance in money. 

Applied in Ransom v. Eastern Cotton Oil Co., 203 N. C. 
193, 165 S. E. 350. 

§ 2490. Local: Short form of liens. — For the 

purpose of creating a valid agricultural lien under 
the preceding sections for supplies to be ad- 



vanced, and also to constitute a valid chattel 
mortgage as additional security thereto, and to 
secure a pre-existing debt, the following or a 
substantially similar form shall be deemed suffi- 
cient, and for those purposes legally effective, in 
the counties of Alamance, Alleghany, Anson, 
Ashe, Bladen, Brunswick, Buncombe, Burke, Ca- 
barrus, Carteret, Caswell, Catawba, Chowan, Col- 
umbus, Craven, Cumberland, Davie, Davidson, 
Duplin, Durham, Edgecombe, Forsyth, Franklin, 
Gaston, Gates, Granville, Halifax, Harnett, Hert- 
ford, Hyde, Iredell, Johnston, Jones, Lenoir, Lin- 
coln, Martin, McDowell, Mecklenburg, Moore, 
Nash, New Hanover, Northampton, Onslow, 
Pender, Pamlico, Person, Pitt, Polk, Randolph, 
Richmond, Robeson, Rockingham, Rowan, Ruth- 
erford, Sampson, Scotland, Transylvania, Tyrell, 
Union, Vance, Wake, Watauga, Washington, 

Wayne and Wilson: North Carolina, 

County. 

Whereas ha .... agreed to make ad- 
vances to for the purpose of enabling said 

to cultivate the lands hereinafter described 

during the year 19.., the amount of said ad- 
vances not to exceed dollars; and. 

Whereas, said is indebted to said 

in the further sum of dollars now due; 

now, therefore, in order to secure the payment 

of the same the said does hereby convey to 

said all the crops of every description 

which may be raised during the year 19 . . on the 
following lands in County, North Caro- 
lina, Township, adjoining the lands of 

and also the following other property, 

viz. : 

And if by the day of , 19.., said 

fail to pay said indebtedness, then 

said may foreclose this lien as provided in 

section two thousand four hundred and eighty- 
eight of the consolidated statutes or otherwise, 
and may sell said crops and other property after 
ten days' notice posted at the courthouse door 
and three other public places in said county, and 
apply the proceeds to the payment of said in- 
debtedness and all costs and expenses of execut- 
ing this conveyance, and pay the surphis to said 

, and the said hereby represents 

that said crops and other property are the abso- 
lute property of and free from encum- 
brance 

Witness hand and seal, 

this the day of 19... 

Witness: 

, owner of the lands described in the 

foregoing instrument, in consideration of the ad- 
vances to be made, as therein provided, do 

hereby agree to waive and release my lien as 
landlord upon said crops to the extent of said 
advances made to said 

This the day of 

Witness: 

(Seal.) 

North Carolina, County. 

The due execution of the foregoing instrument 
was this day proven before me by the oath and 

examination of the subscribing witness 

thereto. 

This the day of , 19... 

(Seal.) 

North Carolina, County. 

The foregoing certificate of a of 



§ 2492(5) 



LOCAIv GOVERNMENT ACT 



§ 2492(15) 



County, is adjudged to be correct. Let 

the instrument with the certificate be registered. 

This the day of , 19. .. 

, Clerk Superior Court. 

(Rev., s. 2055; 1899, cc. 17, 247; 1901, cc. 329, 
704; 1903, c. 489; 1905, cc. 226, 319; 1907, c. 843; 
1909, c. 532; P. L. 1913, c. 49; 1925, c. 285, s. 1; 
1931, c. 196; 1933, c. 101, s. 6.) 

Editor's Note. — 

Public Laws 1933, c. 101, struck out Beaufort from the 
list of counties, and provided a standard form of agricultural 
lien and title note in that county, iixing fees for recording 
same. 



CHAPTER 49B 

EOCAL GOVERNMENT ACT— INDEBTED- 
NESS AND BONDS OF UNITS 

Art. 1. Local Government Commission and Di- 
rector of Local Government 

§ 2492(5). Creation of local government com- 
mission. — There is hereby created a commission 
to be known as the local government commis- 
sion, consisting of nine members of whom the 
state auditor and the state treasurer and the 
secretary of state and the commissioner of reve- 
nue shall be members ex-officio and of whom 
six members shall be appointed by the governor 
to hold office during his pleasure. One of such 
appointees shall have had experience as the chief 
executive officer or a member of the governing- 
body of a city or town and one thereof shall have 
had experience as a member of the governing 
body of a count}- at the time of their appoint- 
ment. The members of the commission, both 
ex-officio members and appointed members, shall 
be Inquired to give such bond, if any, as the 
governor may require. The state treasurer shall 
be ex-officio director of local government and 
shall also be the treasurer and chairman of the 
commission. The board shall elect a vice-chair- 
man from its members who shall hold office at 
the will of the commission. The appointed mem- 
bers of the commission shall be entitled to ten 
dollars for each day actually spent in the service 
of the commission, but shall receive no salary or 
other compensation, and all members shall be 
entitled to their necessary traveling and other ex- 
penses. The director shall appoint some compe- 
tent person as secretary of the commission and 
assistant to the director and may appoint such 
assistants as may be necessary, who shall be 
responsible to the director, and may fix their 
compensation subject to the approval of the 
governor. The commission shall have power to 
adopt such rules and regulations as may be neces- 
sary for carrying out its duties under this act. 
The commission shall hold quarterly regular 
meetings in the city of Raleigh at such place 
and times as may be designated by the com- 
mission, and may hold special meetings at any 
time upon notice to each member personally 
given or sent by mail or telegraph not later than 
the fifth day before the meeting, which notice 
need not state the purpose of the meeting. It 
shall have the right to call upon the attorney 
general or any assistant thereof or upon the 
executive counsel for legal advice in relation to 
its powers' and duties. The functions of the 
local government commission and of the director 
of local government shall be maintained and 



operated as a separate and distinct division of 
the department of the state treasurer. (1931, c. 
60, s. 7; c. 296, s. 8; 1933, c. 31, s. 1.) 

Editor's Note. — Public Laws 1933, c. 31, made the secretary 
of state an e.x officio memfcer of the commission, made the 
treasurer ex officio director, and provided for the appoint- 
ment by the director of the secretary of the commission and 
assistant to the director; deleted a provision which excepted 
the director from the $10 remuneration, and added the last 
sentence as to maintenance and operation as separate and 
distinct division. Section 3 of c. 31 of the Amendatory Act 
of 1933 provides for the transfer of the records to the state 
treasurer. 

§ 249a(6). Executive committee; powers; quo- 
rum. — The state auditor and state treasurer, the 
commissioner of revenue and secretary of state 
shall constitute the executive committee of the 
commission and shall be vested with all the 
powers of the commission except when the com- 
mission is in session and except as otherwise pro- 
vided in this act. Action of the commission as 
a whole and of the executive committee shall be 
taken by resolution which shall be in effect upon 
passage by a majority of the members of the 
commission or the committee present at the 
meeting at which such resolution is passed. A 
majority of the commission shall be a quorum. 
(1931, c. 60, s. 8; 1933, c. 31, s. 2.) 

Editor's Note. — Public Laws 1933, c. 31, substituted secre- 
tary of state for the director as a member of the committee. 

§ 2492(15). Sale of bonds and notes. — All 

bonds and notes of a unit, unless sold pursuant 
to a call for bids heretofore legally given, shall 
be sold by the commission at its office in the 
city of Raleigh, but the commission shall not be 
required to make any such sale or to call for bids 
for any bonds or notes until it shall have ap- 
proved the issuance thereof as hereinabove pro- 
vided nor until it shall have received such tran- 
scripts, certificates and documents as it may in 
its discretion require as a condition precedent to 
the sale or advertisement. Before any such sale 
is conducted the commission shall cause a notice 
of the proposed sale to be published at least once 
at least ten days before the date fixed for the re- 
ceipt of bids (a) in a newspaper published in the 
unit having the largest or next largest circula- 
tion in the unit or if no newspaper is there pub- 
lished, then in a newspaper published in the 
county in which the unit is located, if any, and if 
there be no such newspaper such notice shall be 
posted at the door of the court house, and (b) 
such notice, in the discretion of the commission, 
may be published also in some other newspaper 
of greater general circulation published in the 
state. The commission may in its discretion 
cause such notice to be published in a journal ap- 
proved by the commission and published in New 
York City, devoted primarily to the subject of 
state, county and municipal bonds; provided, how- 
ever, that notes maturing not more than six months 
from their date may be disposed of either by 
private or public negotiation, after five days no- 
tice has been given in the manner specified in 
clause (a) of this section; and provided, further, 
that upon request of the board or body author- 
izing any of such bonds or notes for the purpose 
of refunding, funding, or renewing indebtedness, 
and with the consent of the holder of any such 
indebtedness so to be refunded, funded or re- 
newed, the commission through the state treas- 
urer may exchange anj' such bonds or notes for 
89 ] 



§ 2492(27) 



LOCAL GOVERNMENT ACT 



§ 2492(33) 



a like or greater amount of such indebtedness, 
and make such adjustment of accrued interest 
as may be requested by said board or body, in 
which event the pubHcation of notice as herein- 
above provided shall not be required. The no- 
tice published shall state that the bonds or notes 
are to be sold upon sealed bids and that there 
will be no auction, and shall give the amount of 
the bonds or notes, the place of sale, the time 
of sale or the time limit for the receipt of pro- 
posals and that bidders must present with their 
bids a certified check upon an incorporated bank 
or trust company payable unconditionally to the 
order of the state treasurer for two per cent of 
the face value of the bonds and one-half of one 
per cent on notes bid for, drawn on some bank 
or trust company, the purpose of such check be- 
ing to secure the unit against any loss resulting 
from the failure of the bidder to comply with the 
terms of his bid. The commission shall keep a 
record of the names and addresses of all who re- 
quest information as to the time for receipt of 
bids for such bonds or notes, and shall mail or 
send a copy of such notice of sale and a descrip- 
tive circular in relation thereto to all such names 
and addresses, but failure so to do shall not af- 
fect the legality of the bonds or notes. (1931, c. 
60, s. 17, c. 296, s. 1; 1933, c. 358, s. 1.) 

Editor's Note. — This section formerly provided that the 
bonds or notes might be exchanged for a like or greater face 
amount and interest on the exchanged notes collected. The 
section now provides for exchange of a like or greater 
"amount of such indebtedness and make such adjustment of 
accrued interest as may be requested by the said board or 
body." The change was effected by Public Laws 1933, c. 258. 



§ 2492(27). Investment of unit sinking fimds. 

— It shall be the duty of all officers having charge 
of the investment of sinking funds of each unit 
either to deposit such funds under security there- 
for as provided by this act, or to invest the same 
(or deposit in part and invest in part) in bonds 
or notes of the United States or of the state of 
North Carolina, or in bonds or notes of such 
unit, or in such bonds or notes of North Carolina 
municipalities, counties and school districts as 
are eligible for investment of the sinking funds 
of the state under any law in force at the time 
of investment of such local sinking funds, pro- 
vided, however, that no investment shall be made 
in any bonds or notes of any city, county or 
school district except with the approval of the 
commission, which is hereby directed to scruti- 
nize with great care any applications for any such 
investment and to refrain from approving the 
same unless such investment is prudent and is 
safe in the opinion of the commission and unless 
the legality thereof has been approved by an at- 
torney believed by the commission to be compe- 
tent as an authority upon the law of public se- 
curities. No such securities shall be purchased 
at more than the market price thereof, nor sold 
at less than the market price thereof. The in- 
terest and revenues received upon securities held 
for any sinking fund and any profit made on the 
resale thereof shall become and be a part of 
such sinking fund. (1931, c. 60, s. 29; 1933, cc. 
143, 436.) 

Editor's Note. — ^Public Laws 1933, cc. 143, 436, deleted two 
clauses from this section, one qualifying the deposit in bonds 
of a unit by the words "if such sinking funds are applicable 
to the payment of such bonds or notes" and the other limit- 
ing the approval to cases where the unit is not in duplicate 
of any payment of principal or interest. 

[ 90 



§ 2492(33). Appointment of unit administrator 
of finance in event of default. — If funds suffi- 
cient for the payment of the principal and inter- 
est due at any time upon any valid indebtedness 
of any unit shall not be remitted for the payment 
thereof in sufficient time to pay the same when 
due the director may appoint a qualified person 
of good repute and ability as administrator of 
finance of such unit, at such compensation as 
may be determined by the director, but not in 
excess of three hundred dollars monthly nor for 
a period of more than one year except with the 
approval of the governor. It shall be the duty 
of such administrator of finance to take full 
charge of the collection of taxes in such unit and 
the charge and custody of all funds of the unit 
and the safeguarding thereof, and of the dis- 
bursement of moneys for all purposes, or to take 
charge of such part of any or all such duties as 
the director may determine. The administrator 
may retain under his supervision and control any 
city or county officers or employees for the per- 
formance of any part of such duties falling with- 
in the lines of their customary office or employ- 
ment or may remove any tax collector or ac- 
countant or other officer having connection with 
the collection and disbursement of funds of the 
unit in his discretion. The administrator shall 
comply, on behalf of such units, with all the re- 
quirements of law applicable to such unit, officers 
and employees. Any questions or disputes aris- 
ing out of the appointment of such administra- 
tor or his assumption of duties hereunder or as 
to his powers, may be presented to the commis- 
sion on the application of any officer, taxpayer 
or citizen of the unit or on the application of the 
director, and the commission shall be empowered 
to determine the same. The compensation and 
expenses of the administrator, and the expenses 
of the director and the commission, arising out 
of the provisions of this section, shall be a charge 
against the unit and shall be paid by it and shall 
be deemed a special purpose for the payment of 
which this special provision of law is made, and 
the amount thereof shall be included in the 
budget of the unit for the following fiscal year. 

One year after any unit shall have failed to re- 
mit the principal and/or interest due upon any 
valid indebtedness then outstanding, upon peti- 
tion of the holders of fifty-one per centum of the 
indebtedness of the unit, the director shall ap- 
point an administrator of finance, by and with 
the consent of the resident judge of the district 
in which the unit is located, who, upon his ap- 
pointment, shall have the authority hereinbefore 
in this section conferred upon the administrator 
of finance. 

The petition shall disclose all facts and cir- 
cumstances available in connection with the issue 
in default, including the names and addresses of 
all known holders of such issue, and, insofar as 
the petitioning holders, shall contain a consent 
to the filing of the petition. 

The order shall be in such form as the direc- 
tor and judge may determine, to include, how- 
ever, such facts as may appear from the petition 
to be the facts with respect to the issue in de- 
fault. It shall show the consent of the resident 
judge to the appointment of the administrator of 
finance named in the order. 

Immediately upon the filing of the petition and 



§ 3492(33) 



IvOCAL GOVERNMENT ACT 



§ 2492(50)a 



the entry of the order, which shall be done within 
ten days after the date the petition is filed with 
the director, the director shall certify, over his 
hand and the seal of the treasurer, the petition 
and order to the superior court of the county 
where the unit is located, if it be a unit other 
than the county, and to the superior court of the 
county, if the unit be a county. Upon receipt of 
the certified petition and order, it shall be the 
duty of the clerk of the superior court to which 
certified to issue such notice as may be pre- 
scribed by the director, and cause the same to 
be published in a newspaper of general circula- 
tion published in the state and in a journal ap- 
proved by the commission for "notice of sale" of 
evidences of indebtedness, once a week for four 
weeks, and issue a copy of such notice to all 
holders of the issue in default named in the pe- 
tition. Such notice shall contain a provision 
requiring all holders of such issue to appear in 
person or through attorney, and disclose their 
name, address and amount of the issue held. 

Upon the expiration of the period of publica- 
tion hereinbefore prescribed, the cause shall be 
transferred by the clerk of the superior court to 
the civil issue docket of the court, and the same 
shall thereafter stand upon such docket to be 
proceeded with as in other civil actions, but shall 
be placed upon the trial calendar at each term 
of the court thereafter for the trial of civil ac- 
tions until final action is entered by the court at 
term. 

Any action taken in the cause shall be after 
notice issued and published as hereinbefore pro- 
vided, but from any order entered, unless the 
holders of all of the issue in default shall have 
responded, shall remain open for a period of 
thirty days after the publication of the order as 
hereinbefore prescribed for publication of notice. 
If the holder of any amount of such issue in de- 
fault shall, during said thirty-day period, file a 
petition for a modification or revocation of the 
order, said order shall not become effective until 
the petitioning holder or holders shall have been 
heard by the court. If the order shall be, on 
such petition, modified or revoked, the order 
modifying or revoking the order shall become the 
order of the court in the cause. 

Upon the notice hereinbefore prescribed and 
in the manner herein provided, the court shall 
have authoritj' to enter any order which shall be 
for the interest of the unit and the holders of the 
issue in default, but no order entered shall be- 
come finally operative until the expiration of the 
time hereinbefore provided for the filing of peti- 
tions for modification or revocation. Any order 
which is agreed to by the unit and the holders 
of the issue in default may be entered at any 
time, but such order shall be likewise published, 
and unless agreed to by the holders of the entire 
issue in default, shall become operative only after 
the expiration of the period hereinbefore pro- 
vided for the filing of petitions for modification 
or revocation, and the court shall have authority, 
upon the filing of such a petition, to modify or 
revoke the order entered by agreement, which 
order then entered, shall thereupon become ef- 
fective and operative. 

The costs of all publications and of the is- 
suance of all notices shall be paid by the ad- 
ministrator of finance: Provided, however, that 

[9 



the holders of the issue in default filing the orig- 
inal petition shall advance the necessary cost, 
but shall be reimbursed by the administrator of 
finance upon the docketing of the cause upon the 
civil issue docket of tlie superior court to which 
certified. 

The court, with the consent of the director, 
for good cause shown, shall have the right to 
remove the administrator of finance appointed, 
and, with the consent of the director, appoint an- 
other administrator of finance in his place. The 
administrator of finance appointed upon the in- 
stitution of the cause or thereafter by the court 
shall give such bond as shall be prescribed by 
the director and the resident judge of the dis- 
trict. The compensation shall be fixed for the 
administrator of finance by the director and the 
resident judge of the district and all costs shall 
be paid as provided in the first paragraph of this 
section. Until the final determination of the 
cause and the entry of an order finally discharg- 
ing an administrator of finance, the administra- 
tor of finance shall have such powers and perform 
such duties as prescribed in the first paragraph of 
this section. (1931, c. 60, s. 36; 1933, c. 374.) 

Editor's Note.— Public I^aws of 1933, c. 374, added all the 
paragraphs of this section except the first paragraph. The 
first paragraph formerly comprised the whole section. 

§ 2492(36). Unit must levy sufficient taxes to 
provide for maturing obligations. — Any board 
whose duty it shall be to provide for the payment 
by taxation or otherwise of the principal or inter- 
est of any valid obligations of the unit shall make 
provision for such payment by the levy of such 
taxes as are authorized to be levied therefor at 
or before the time provided for such tax levy, or 
to make other legal provision for such payment, 
and every member thereof who shall be present 
at the time for such levy or provision shall vote 
in favor thereof and shall cause his request that 
such tax levy or provision be made to be re- 
corded in the minutes of the meeting: Provided, 
in making such levy any such board may deter- 
mine and make allowance for moneys due to it 
and receipt of which may be reasonably antici- 
pated by such unit. (1931, c. 60, s. 36; 1933, c. 
332.) 

Editor's Note.— rublic I^aws of 1933, c. 332, added the pro- 
viso appearing at the end of this section. 

§ 2492(49). Notes and bonds of units redeem- 
able before maturity.— Any notes or bonds of a 
unit may (but need not) be made subject to call 
for redemption before maturity at the option of 
the unit issuing them, but no such bond or note 
shall be redeemed before maturity without the 
consent of the holder thereof, unless such bond 
or note states on its face that the unit reserves 
the right to redeem the same before maturity. 
(1931, c. 296, s. 3; 1933, c. 258, s. 2.) 

Editor's Note. — Public I,aws 1933, c. 258, made this section 
applicable to all units instead of the bonds issued "pursuant 
to the county or municipal finance act." The quoted words 
were omitted by the amendment. 

§ 2492(50)a. Adjustment of indebtedness of 
units when refunding. — -The board or body au- 
thorized to issue funding and refunding bonds of 
a unit is hereby invested with all powers neces- 
sary for the execution and fulfillment of any plan 
or agreement for the settlement, adjustment, 
funding, or refunding of the indebtedness of the 
unit, not inconsistent with general laws relating 

1] 



§ 2432 ( 50) b 



LOCAL GOVERNMENT ACT 



§ 2492(64) 



to the issuance of funding and refunding bonds. 
(1933, c. 258, s. 4.) 

§ 2492 ( 50) b. Provisions in bond resolutions set 
out. — In any ordinance, order or resolution au- 
thorizing or providing for the issuance of bonds 
or notes of a unit for the purpose of refunding, 
funding or renewing indebtedness incurred be- 
fore July 1, 1933, it shall be lawful to incorporate 
any or all of the following provisions, which shall 
have the force of contract between the unit and 
the holders of said bonds or notes, and every 
board or body authorized to issue such bonds or 
notes or to levy taxes for their payment shall 
have power to do all things necessary or con- 
venient for the purpose of carrying out such 
provisions, viz.: 

(a) Provisions for the creation of a special 
fund or funds to be used for the purchase of 
said bonds or notes at market prices less than 
par and accrued interest, or for the payment of 
the bonds or notes at par and accrued interest at 
or before maturity. All bonds or notes so pur- 
chased or paid shall be cancelled and shall not 
be reissued. 

(b) Provisions for levying a tax annually or 
otherwise for the payment of the principal of 
the bonds or notes or for the said retirement 
fund. 

(c) Provisions pledging any taxes, special as- 
sessments, or other revenues or moneys of the 
unit to the payment of said bonds or notes or to 
said retirement fund. 

(d) Provisions whereby, so long as any of 
said bonds or notes are outstanding, the unit will 
not pledge any particular revenues or moneys, 
except special property taxes, without securing 
such bonds or notes equally and ratably with the 
other obligations to be secured by such pledge. 

(e) Provisions whereby any special fund afore- 
said may be a revolving fund, and used tempo- 
rarily for other purposes, and thereafter re- 
plenished, upon such terms and conditions as 
may be set forth in said ordinance, resolution or 
order. 

(f) Provisions for the custody of any such 
special fund by a bank or trust company in this 
or any other state or by the state treasurer. 

(g) Provisions for the allocation and pay- 
ment daily or periodically of moneys payable to 
any of said special funds. 

(h) Provisions for the determination by arbi- 
tration of any question arising under any of the 
foregoing provisions. 

No such provisions shall become effective with- 
out the approval of the local government com- 
mission, or under the provision of an act passed 
at this session of the general assembly to pro- 
vide a method for the readjustment of the in- 
debtedness of counties and municipalities with 
creditors and holders of securities. (1933, c. 258, 
s. 4.) 

Art. 2. Validation of Bonds, Notes and Indebt- 
edness of Unit 

§ 2492(62). Validation of certain funding and 
refunding bonds. — Funding or refunding bonds 
authorized by a bond ordinance adopted under 
the municipal finance act, or by a bond order 
adopted under the county finance act, when such 
ordinance or order was adopted before the eleventh 
day of April, nineteen hundred and thirty-three, 

[9 



may be delivered notwithstanding such ordinance 
or order may not contain a description of the in- 
debtedness to be funded or refunded: Provided, 
all funding, refunding or readjustment bonds au- 
thorized to be issued after the eleventh day of 
April, nineteen hundred and thirty-three, must 
conform to the requirements of all laws enacted 
for the purpose of funding, refunding and read- 
justing such indebtedness. (1933, c. 500, s. 1.) 

Public I<aws of 1933, c. 288, exempts Forsyth county from 
the operation of this and the following sections of the prior 
Act of 1933. 

Art. 3. Readjustment of Indebtedness of Coun- 
ties and Municipalities 

§ 2492(63). County readjustment commission 
created. — There is hereby created a commission 
to be known as the county readjustment commis- 
sion, which shall consist of three (3) freeholders 
and taxpayers resident in the state of North Car- 
olina, to be appointed by the governor immedi- 
ately following the ratification of this article, no 
two of which shall be of the same business or 
profession, in the appointment of which the gov- 
ernor shall name the chairman and fix the com- 
pensation of such commissioners, which shall be 
paid as hereinafter provided, and said commis- 
sion shall proceed to organization by electing a 
secretary and providing such other expert legal 
and clerical assistance as may be necessary for 
the purposes hereinafter enumerated. (1933, c, 
205, s. 1.) 

§ 2492(64). Assistance to local imits in read- 
justment plan; notice of hearing; findings as to 
ability to pay; negotiations with bondholders. — 

Upon call, and at the request of any county or 
municipality of the state which may desire to 
have the services of the aforesaid readjustment 
commission in ascertaining and assisting such 
county, governmental unit, or municipality in 
working out a plan of readjustment, the afore- 
said commission, with such aid and assistance as 
it may require, and after said county, govern- 
mental unit, or municipality has advertised in a 
local newspaper in said county once a week for 
four successive weeks of the time, place and hear- 
ing of said readjustment commission in order that 
the bondholders may have notice thereof, shall 
forthwith proceed to investigate the resources 
and available revenue of such county or munici- 
pality, its tax burdens and its valid obligations, 
and securities outstanding and permit and allow 
any bondholder, county, governmental unit, or 
municipality to offer evidence or information in 
order that it may make such study of an analy- 
sis of the debts and obligations of such county, 
governmental unit, or municipality and its re- 
sources to meet the same and to fix the valuation 
of said county, governmental unit, or municipal- 
ity and find the ability of said county, govern- 
mental unit or municipality to pay, and recom- 
mend and report to the authorities their sugges- 
tions and methods of such readjustment and the 
ability of such countj', governmental unit, or mu- 
nicipality to meet the same. Findings by said 
readjustment commission as to the value of the 
securities and the ability of the county, govern- 
mental unit, or municipality to pay, if supported 
by competent evidence shall be prima facie and 
presumptive evidence of the valuation of the se- 
curities and of the ability of the county, govern- 

2] 



§ 2492(65) 



LOCAL GOVERNMENT ACT 



§ 2492(69) 



mental unit, or municipality to meet the same. 
And the said authorities of all such counties, mu- 
nicipalities, and governmental units shall be fur- 
ther authorized and empowered in their discre- 
tion to request the services of the aforesaid county 
readjustment commission to enter into negotia- 
tions with the holder or holders of all such securi- 
ties for the purpose of readjusting the same upon 
such basis as the said commission and the hold- 
ers of such obligations may agree upon, and shall 
report their recommendations as to the readjust- 
ment of such indebtedness to the authorities of 
such counties, municipalities, or other govern- 
mental units for their final decision. (1933, c. 
205, s. 2.) 

§ 2492(65). Conference with creditors to agree 
upon readjustment; consent of two-thirds of credi- 
tors. — Upon the coming in of the aforesaid re- 
port, the authorities of such county, municipality, 
or governmental unit shall be authorized to call 
the holders of its securities or obligations in con- 
ference for discussion of a basis of such readjust- 
ment and may make such adjustment of its obli- 
gations with the holders of its securities as may 
be mutually acceptable and agreeable, and when- 
ever the holders of at least two-thirds of the total 
obligations of such county, governmental unit, or 
municipality shall agree upon a basis of readjust- 
ment, then such county, governmental unit, or 
municipality shall be authorized to proceed there- 
with and to issue new securities or refunding se- 
curities to the amount of the readjustment basis 
of its obligations for such extended period of time 
and at such rate of interest as may be mutually 
acceptable unless an election shall be called as 
hereinafter provided. (1933, c. 203, s. 3.) 

§ 2492(66). Tender of agreed adjustment to 
minority third of creditors; minority may seek 
redress in courts; investigation by courts into af- 
fairs of local unit. — Whenever two-thirds in 
amount of the holders of the securities of such 
county or municipality have agreed with such 
county, municipality, or governmental unit upon 
the readjustment of its obligations, the same ad- 
justment shall be tendered to all holders of the 
securities on the same basis proposed and agreed 
to, and upon the failure of such minority holders 
to accept such settlement and readjustment upon 
the basis assented to by two-thirds in amount of 
the holders of the total obligations of such county, 
governmental unit, or municipality, then there- 
after the holders of such securities declining to 
accept the adjustment aforesaid may proceed to 
seek redress for relief by an action in the supe- 
rior court in said county, but no mandamus shall 
lie until eighteen months after final judgment es- 
tablishing the claims of such minority holder or 
holders and upon application for said mandamus. 
The court shall have power and authority to in- 
vestigate and determine the ability of the county, 
governmental unit, or municipality to pay out of 
its present and probable income its accrued and 
accruing indebtedness and when the money which 
may reasonably be expected to be raised by the 
levy of and collection of taxes in the said county, 
governmental unit, or municipality within its cur- 
rent fiscal year, together with such other sources 
of income of the county, governmental unit, or 
municipal corporation as may exist, shall be in- 
sufficient to pay the reasonable, necessary and 



economical operating expenses of such munici- 
pal corporation, its probable requirements for 
welfare relief and the service of its debts, the 
court may upon the facts so found by it issue 
said mandamus upon such terms and conditions 
as in the judgment of the court may seem just 
and equitable. (1933, c. 205, s. 4.) 

§ 2492(67). Expense of investigation borne by 
units affected. — All of the costs of investigation, 
salaries of the commission, and its expenses in 
making the report herein provided for shall be 
borne by and paid by the county, municipality, or 
governmental unit calling upon such commission 
for its assistance and report, and the salaries of 
the aforesaid commissioners and the general ex- 
pense thereof shall be apportioned by the commis- 
sion in a just and equitable manner and paid by the 
county, municipality, or governmental unit call- 
ing for this service. (1933, c. 205, s. 5.) 

§ 2492(68). Findings of commission and re- 
adjustments filed with secretary of state; debt 
service levies reducible in proportion to terms of 
readjustment. — The commission herein appointed, 
after making the investigation and report as here- 
in provided for, shall make a copy of its findings 
and recommendations in condensed form and file 
the same in the office of the secretary of state 
at Raleigh, which shall be by him recorded in a 
book to be provided for that purpose, and the 
county, governmental unit, or municipality shall 
make and file with the secretary of state, to be 
likewise recorded in his office, a copy of any ad- 
justment or settlement which may be or may 
have been reached with the holders of such secu- 
rities and obligations as herein provided, and 
thereafter the aforesaid county, municipality, or 
governmental unit shall not make or levy any 
tax or assessment concerning the aforesaid bonds 
and obligations or provide any debt service or 
sinking fund beyond the amount of such settle- 
ment and adjustment agreed upon and adopted 
by such readjustment as herein provided. (1933, 
c. 205, s. 6.) 

§ 2492(69). Local units may borrow money to 
purchase their own bonds at discounts; R. F. C. 
loans authorized. — Said county readjustment com- 
mission is hereby authorized and empowered, sub- 
ject to the approval of the governing body of any 
political sub-division of the state, and at its re- 
quest, to negotiate for a loan to be made to any 
county, city, town or other political sub-division, 
if such loan, or the money derived therefrom, can 
be used to purchase the outstanding bonds or 
notes, or other evidences of indebtedness of such 
political subdivision at a discount of 40 per cent 
or more. If congress shall provide that the re- 
construction finance corporation may make such 
loans to counties, cities, towns or other political 
sub-divisions of North Carolina, then the govern- 
ing bodies of such counties, cities, towns or other 
political subdivisions of North Carolina, are here- 
by authorized and empowered to borrow money 
from such reconstruction finance corporation for 
such purpose, and such governing bodies are here- 
by authorized and empowered to issue bonds or 
other evidence of indebtedness to the reconstruc- 
tion finance corporation, or any other lender, un- 
der like circumstances, in such amounts and in 
such denominations, at such rate of interest and 
for such term of years, and otherwise, as may be 



[ 93 



§ 2492(70) 



LOCAL GOVERNMENT ACT 



§ 2492(72) 



agreed upon between the governing body of any 
such county, city, town or other poHtical sub-di- 
vision of North Carolina, and the reconstruction 
finance corporation. Said obhgations to the re- 
construction finance corporation or other lender 
are hereby declared to be obligations issued for a 
necessary purpose and to be binding upon the 
county, city, town or other political sub-division, 
and a sufficient special tax shall be levied and 
collected each year by the governing body of 
such county, city, town or other political sub-di- 
vision as may be necessary to pay the interest and 
retire the principal of such bonds, according to 
the terms and provisions contained in the issue. 
It is further provided that any portion of the 
total of the outstanding indebtedness of any 
county, town, city or other political subdivision 
may be discounted as herein provided. (1933, c. 
205, s. 7.) 

§ 2492(70). Agreement as to readjustment ten- 
tative; publication of proposed plan; if no elec- 
tion petition filed, then agreement may be put 
into effect. — ^In any case where any county, city, 
town or other political sub-division shall have 
reached an agreement with its creditors upon a 
debt settlement plan, as provided in this article, 
such agreement shall be tentative to the follow- 
ing extent: That is, the proposed debt settlement 
plan shall first be published in some newspaper 
in the county affected by the debt settlement 
plan, or within which the county, city or town 
is situated, once a week for four successive weeks, 
or for thirty days. If, at the end of said thirty 
days, no petition as hereinafter provided shall 
have been presented to the governing body of any 
such political sub-division requesting an election 
upon the proposed debt settlement plan, then the 
governing body thereof is hereby authorized and 
empowered to enter into a contract with its 
creditors for a readjustment of its indebtedness, 
and to issue bonds of any nature, and in any de- 
nominations, maturing within such period of time 
and at such rates of interest, as may be pro- 
posed in the debt settlement plan; and it is fur- 
ther authorized and empowered to do everything- 
necessary in order to fully carry out the terms 
and conditions embodied in the proposed or ten- 
tative debt settlement plan. Such bonds, issued 
for a total refunding of the indebtedness of such 
political sub-division, or issued as partial refund- 
ing of indebtedness of such political sub-division, 
are hereby declared to be issued for necessary 
purposes within the contemplation of the consti- 
tution; and such political sub-division, through 
its proper governing body, is hereby directed to 
levy sufficient taxes annually to pay such obli- 
gations in accordance with the tenor and terms 
as same may be provided in such debt settlement 
plan. However, if within such period of thirty 
days publication, a petition shall be filed with 
the governing body of any such political sub-di- 
vision signed by a number of qualified voters 
equal to 10 per cent of the votes cast for governor 
of North Carolina at the last preceding election 
in such political unit, then it shall be the duty 
of such governing body to call an election to be 
held within sixty days after the expiration of the 
said thirty day period at which time the election 
shall be conducted in accordance with the general 
law of North Carolina as now provided for vot- 
ing for propositions. A ballot shall be provided 



having thereon the phrase "for debt settlement 
plan," and also the phrase "against debt settle- 
ment plan." Those desiring to vote for the debt 
settlement plan shall make a cross mark in the 
square at the left of the following: "for debt set- 
tlement plan," and those desiring to vote against 
proposed debt settlement plan shall make a cross 
mark in the square at the left of the following: 
"against debt settlement plan." If the majority 
of the votes cast at such an election shall be in 
favor of the proposed debt settlement plan, then 
the governing body of such county, city, town or 
other political sub-division shall proceed to sign 
the debt settlement contract with the creditors, 
and to issue such bonds as may be provided in 
said debt settlement plan, at such rate of interest 
and in such denominations and for such length 
of time as may be provided for in the debt settle- 
ment contract; and the said governing body is 
hereby fully authorized and empowered to do 
everything necessary to carry out the provisions 
of any such proposed debt settlement. If, at 
such election, a majority of the votes cast are 
against the proposed debt settlement plan, then 
the tentative agreement shall become null and 
void; however, such failure of a majority of the 
people to ratify any tentative debt settlement 
plan shall not be deemed to prohibit the govern- 
ing body of any county, city or town from pro- 
ceeding to negotiate any other plan of debt 
settlement with its creditors, and, after the ex- 
piration of one year from the date of such an 
election, a second election may be held upon any 
other or different debt settlement plan. (1933, c. 
205, s. 8, c. 348.) 

§ 2492(71). Supplemental to existing laws. — 

This section shall be deemed to provide an addi- 
tional and alternative method for the doing of 
the things authorized hereby and shall be re- 
garded as supplemental and additional to powers 
conferred by other laws, and shall not be re- 
garded as in derogation of or as a limitation on or 
as affecting any powers for the issuance of bonds 
or notes under the provisions of other laws, or 
as affecting the proceedings or as requiring any 
additional proceedings for the issuance of bonds 
or notes under such other laws. Before any of 
the provisions of this act shall be applicable to 
any county, cit}', town or political subdivision 
the governing body thereof shall pass a resolu- 
tion requesting the services of said readjustment 
commission and shall file with its secretary a 
certified copy of such resolution. (1933, c. 312, 
s. 1.) 

Art. 4. Funding and Refunding of Debts of Lo- 
cal Units Other Than Counties, Cities 
and Towns 

§ 2492(72). Local units, other than counties^ 
cities and towns, authorized to fund outstanding 
debts. — Any unit other than a county, city or 
town may issue bonds as provided in this 
article for the purpose of funding or refunding 
any or all of its matured or unmatured notes or 
bonds, or the interest accrued thereon, pro- 
vided the indebtedness evidenced by said notes 
or bonds was incurred before July 1, 1933. The 
word unit as here used means a township, school 
district, school taxing district, road district, 
drainage district, sanitary district, water district, 
or other district, political sub-division or local 



[94] 



§ 2492(73) 



MARRIAGE 



§ 2500(f) 



governmental agency. The notes and bonds 
hereby authorized to be funded or refunded in- 
clude notes and bonds issued in the name of a 
county, but payable from taxes levied in a town- 
ship, school district or other unit embracing only 
a part of the territory of the county. (1933, c. 
257, s. 1.) 

§ 2492(73). General law applicable. — Bonds 
issued pursuant to this article shall be issued in 
accordance with the provisions of the county 
finance act, as amended, relating to the issuance 
of funding and refunding bonds under that act, 
except in the following respects, viz.: 

(a) They shall be issued in the name of the 
obligor named in the obligations to be funded or 
refunded; 

(b) They shall be issued by or on behalf of the 
unit by the same board or body which issued the 
obligations to be funded or refunded, or its suc- 
cessor, or, if said board or body is no longer in 
existence, by the board of county commissioners 
or other governing body of the county in which 
the unit, or the major portion of the unit, is 
situated; 

(c) It shall not be necessary to include in the 
order or resolution authorizing the bonds, or in 
the notice required to be published prior to final 
passage of the order or resolution, any statement 
concerning the filing of a debt statement, or the 
contents thereof; and, as applied to said bonds, 
sections 9, 13, 14, 15, 16, and 17, of the county 
finance act, as amended [§§ 1334(9), 1334(13)- 
1334(17) of this code], shall be read and under- 
stood as if they contained no requirements in re- 
spect to such matters; 

(d) The bonds shall mature at such time or 
times, not later than forty years after their date, 
as may be fixed or provided for in the resolutions 
under which they are issued; 

(e) The bonds shall be issued in exchange for 
the obligations to be funded or refunded there- 
by, and the aggregate principal amount of the 
bonds shall not exceed the aggregate amount of 
unpaid principal and accrued interest of the obli- 
gations for which they are exchanged. (1933, c. 
257, s. 2.) 

§ 2492(74). Taxes to pay new obligations au- 
thorized. — Taxes for the payment of the principal 
and interest of bonds issued pursuant to this 
act shall be levied by the board or body author- 
ized by existing law to levy taxes for the pay- 
ment of the obligations funded or refunded by 
said bonds, and shall be levied only in the terri- 
tory subject to taxation for the payment of the 
obligations so funded or refunded. (1933, c. 
257, s. 3.) 

§ 2492(75). County finance act applicable. — 

Except where they are inconsistent with the 
provisions of this article; all of the provisions of 
the county finance act, as amended, applicable 
to bonds issued under that article for the fund- 
ing or refunding of indebtedness incurred before 
July 1, 1933, shall be applicable to bonds issued 
under this article. For the purpose of applying 
the provisions of said act to bonds issued under 
this article, the following words and phrases in 
said act shall be deemed to have the followmg 
meanings when applied to said bonds, viz.: 
"Governing body" means the board or body au- 
thorized by this article to issue bonds, except 



the words "governing body" in section 41 of the 
county finance act, where said words mean the 
board or body authorized by this act to levy 
taxes; "county" means the unit by or on behalf 
of which the bonds are to be issued under this 
article; "published" means published in a news- 
paper published in a county in which such unit 
is situated, if there be such a newspaper, but 
otherwise means posted at the courthouse door 
of said county and at least three other public 
places; "clerk of board of commissioners" means 
the clerk or secretary of the board or body au- 
thorized by this act to issue bonds; "this act" 
means this article. (1933, c. 257, s. 4.) 



CHAPTER 50 

MARRIAGE 

Art. 1. General Provisions 

§ 2494. Capacity to marry. — All unmarried male 
persons of sixteen years, or upwards, of age, and 
all unmarried females of sixteen years, or up- 
wards, of age, may lawfully marry, except as 
hereinafter forbidden: Provided, that females over 
fourteen years of age and under sixteen years of 
age may marry under a special license to be is- 
sued by the register of deeds, which said special 
license shall only be issued after there have been 
filed with the register of deeds a written consent 
to such marriage, signed by one of the parents 
of the female or signed by that person standing 
in loco parentis to such female, and the fact of 
the filing of such written consent shall be set out 
in said special license: Provided, that all couples 
resident of the state of North Carolina who marry 
in another state must file a copy of their mar- 
riage certificate in the office of the register of 
deeds of the home county of the groom within 
thirty days from the date of their return to the 
state, as residents, which certificate shall be in- 
dexed on the marriage license record of the ofifice 
of the register of deeds and filed with marriage 
license in his office; that the fee for the filing 
and indexing said certificate shall be fifty cents: 
Provided, the failure to file said certificate shall 
not invalidate the marriage. (Rev., s. 2082; Code, 
s. 1809; R. C, c. 68, s. 14; 1871-2, c. 193; 1923, 
c. 75; 1933, c. 269, s. 1.) 

Editor's Note.— 

Public Laws of 1933, c. 269, added the proviso, at the end 
of this section, relating to filing certificates by those marry- 
ing in another state. 

§ 2495. Want of capacity; void and voidable 
marriages. 

Bis^mous Marriage Always Void. — 

Where a wife attempts to marry again when no valid di- 
vorce a vinculo has been obtained from her living husband, 
such second attempted marriage is absolutely void and may 
be annulled by the husband of the second attempted mar- 
riage in an action instituted for that purpose. Pridgen v. 
Pridgen, 203 N. C. 533, 166 S. E- 591. 

Art. 2. Marriage License 

§ 2500(a). Certificates of health for applicants 
for license. 

Chapter 256, Public Laws 1933, purports in the caption to 
repeal §§ 2500(a) to 2500(e) but no mention is made of the 
sections in the context of the act, which is codified here as 
§ 2500(g). 



§ 2500(f): Repealed by Public Laws 1933, c. 12. 



[95] 



§ 2500(g) 



MORTGAGES AND DEEDS OF TRUST 



§ 2583 



§ 3500(g). Affidavit of groom as to physical 
condition when applying for marriage license. — 

The register of deeds of the several counties of 
the state shall require, before issuing a marriage 
license, that the groom shall file with him an af- 
fidavit setting forth that he does not have active 
tuberculosis or any venereal disease, and has not 
had either of said diseases for a period of two 
3'ears prior thereto. The affidavit must be signed 
by the maker and sworn to before the register 
of deeds or any other person authorized to ad- 
minister oaths: Provided, however, that when the 
affidavit is made before the register of deeds, he 
shall not make any charge therefor. 

The applicant, in lieu of making affidavit as 
herein set out, may file a certificate of health as 
provided by law before a passage of this section. 

Upon the applicant complying with either of 
the provisions of the foregoing section the regis- 
ter of deeds may issue a license to marry: Pro- 
vided the contracting parties are otherwise quali- 
fied to marry according to law: Provided further, 
that the bride shall not be required to stand a 
physical examination. (1933, c. 256, s. 1.) 



CHAPTER 51 

MARRIED WOMEN 

Art. 1. Powers and Liabilities of Married Women 

§ 2515. Contracts of wife with husband affect- 
ing corpus or income of estate. 

IV. EFFECT OF NONCOMPLIANCE. 
Noncompliance Renders Deed Void. — 

The failure of the certificate of a deed to lands from a 
wife to her husband to state that the conveyance was "not 
unreasonable or injurious to her" renders the instrument 
void. Farmers Bank v. McCullers, 201 N. C. 440, 160 S. 'E- 
494. 



§ 2517. Wife's antenuptial contracts and torts. 

Where prior to their marriage the wife incurs liability for 
a negligent injury to the husband the subsequent marriage 
does not affect her liability. Shirley v. Ayers, 201 N. C. 51, 
158 S. E. 840. 

Art. 2. Acts Barring Reciprocal Property Rights 
of Husband and Wife 

§ 2522. Divorce a vinculo and felonious slay- 
ing a bar. 

When Homicide Is Admitted. — The provisions of this sec- 
tion do not require a conviction of the offense where it is 
admitted that the homicide had been committed. Parker v. 
Potter, 200 N. C. 348, 349, 157 S. E. 68. 

Application to Estates by Entireties. — In Bryant v. Bry- 
ant, 193 N. C. 372, 137 S. E. 188, it was held that where hus- 
band and wife hold estate by entireties, and the husband 
has murdered the wife, and her expectancy of life has been 
legally determined to have been longer than his own, equity 
will decree that he hold the legal title to lands held by them 
in entireties in trust for her heirs at law until his death, 
subject to his right of management and the use of the rents 
and profits for his own life. As this decision was based up- 
on equitable principles, it was not necessary to determine 
whether the provision of this section, in reference to the 
felonious slaying of the husband or wife, which was enacted 
after the decision in Owens v. Owens, 100 N. C. 240, 6 S. 
E- 794, embraces estates held by entireties. 



CHAPTER 52 

MILLS 
Art. 1. Public Mills 
§ 2532. Miller to grind according to turn; tolls 



regulated. — All millers of public mills shall grind 
according to turn, and shall well and sufficiently 
grind the grain brought to their mills, if the water 
will permit, and shall take no more toll for grind- 
ing than one-eighth part of the Indian corn and 
wheat and one-fourteenth part for chopping grain 
of any kind; and every miller and keeper of a 
mill making default therein shall, for each of- 
fense, forfeit and pay five dollars to the party in- 
jured: Provided, that the owner may grind his 
own grain at any time: Provided further that this 
shall not apply to Lenoir and Cleveland counties: 
Provided, further, that in Northampton and 
Franklin counties it shall be lawful for water 
mills to take for toll for grinding one-sixth of 
the indian corn and wheat, and one-twelfth part 
for chopping grain of any kind: Provided, further 
that this section shall not apply to Hertford, 
Bertie and Hyde counties. (Rev., s. 2120; Code, 
s. 1847; R. C, c. 71, s. 6; 1777, c. 122, s. 10; 1793, 
C. 402; 1905, c. 694; 1907, c. 367; 1929, cc. 129, 
139; 1933, cc. 150, 158.) 

Editor's Note. — 

Public Laws 1933, cc. 150, 158, exempted Cleveland, Hert- 
ford, Bertie and Hyde counties from the operation of this 
section. For act increasing the toll from one-eighth to one- 
sixth in Pender county, see P. 1,. 1933, c. 298. 



CHAPTER 53 

MONOPOLIES AND TRUSTS 
§ 2563. Particular acts defined. 

The refusal by wholesalers of ice to sell a retailer on the 

same terms as those offered to other retailers in the city is 
not a violation of this section, it not appearing that the 
parties were business competitors. Rice v. Ashville Ice, 
etc., Co., 204 N. C. 768. 



CHAPTER 54 

MORTGAGES AND DEEDS OF TRUST 
Art. 2. Right to Foreclose or Sell Under Power 

§ 2578. Representative succeeds on death of 
mortgagee or trustee in deeds of trust; parties to 
action. — ^When the mortgagee in a mortgage, or 
the trustee in a deed in trust, executed for the 
purpose of securing a debt, containing a power 
of sale, dies before the payment of the debt se- 
cured in such mortgage or deed in trust, all the 
title, rights, powers and duties of such mortgagee 
or trustee pass to and devolve upon the executor 
or administrator or collector of such mortgagee 
or trustee, including the right to bring an action 
of foreclosure in any of the courts of this state 
as prescribed for trustees or mortgagees, and in 
such action it is unnecessary to make the heirs 
at law of such deceased mortgagee or trustee 
parties thereto. (Rev., s. 1031; 1901, c. 186; 1887, 
c. 147; 1895, c. 431; 1905, c. 425; 1933, c. 199.) 

Editor's Note.— Public Laws of 1933, c. 199, inserted the 
words "or collector" following the words "executor or ad- 
ministrator." 

§ 2583. Clerk appoints successor to incompe- 
tent trustee. — When the sole or last surviving 
trustee named in a will or deed of trust dies, re- 
moves from the county where the will was pro- 
bated or deed executed and/or recorded and from 
the state, or in any way becomes incompetent to 
execute the said trust, or is a nonresident of this 
state, or has disappeared from the community of 
his residence and his whereabouts remains un- 
[96] 



§ 2591 



MORTGAGES AND DEEDS OF TRUST 



§ 2593(b) 



known in such community for a period of three 
months and cannot, after diligent inquiry be as- 
certained, the clerk of the superior court of the 
county wherein the will was probated or deed of 
trust was executed and/or recorded is authorized 
and empowered, in proceedings to which all per- 
sons interested shall be made parties, to appoint 
some discreet and competent person to act as 
trustee and execute the trust according to its true 
intent and meaning, and as fully as if originally 
appointed: Provided, that in all actions or pro- 
ceedings had under this section prior to January 
first, one thousand nine hundred, before the clerks 
of the superior court in which any trustee was 
appointed to execute a deed of trust where any 
trustee of a deed of trust has died, removed from 
the county where the deed was executed and 
from the state, or in any way become incompe- 
tent to execute the said trust, whether such ap- 
pointment of such trustee by order or decree, or 
otherwise, was made upon the application or pe- 
tition of any person or persons ex parte, or 
whether made in proceedings where all the proper 
parties were made, are in all things confirmed 
and made valid so far as regards the parties to 
said actions and proceedings to the same extent 
as if all proper parties had originally been made 
in such actions or proceedings. (Rev., s. 1037; 
Code, s. 1276; 1869-70, c. 183; 1873-4, c. 126; 
1901, c. 576; 1933, c. 493.) 

Editor's Note. — Public Laws 1933, c. 493, inserted the 
words "and/or recorded" following the word "executed." It 
also inserted the claoise relating to instances where the 
trustee has disappeared. 

Section Becomes Part of Contract. — Where a deed of trust 
is executed after the efifcctive date of this section the pro- 
visions of the section enter into and become a part of the 
contract, and a later statute providing a more economical 
and expeditious procedure for such substitution, so long as 
the rights of the parties, especially those of the cestui que 
trust, are not injuriously affected, does not violate the con- 
stitutional provisions. Bateman v. Sterrett, 201 N. C. 59, 
159 S. E. 14. 

Art. 3. Mortgage Sales 

§ 2591. Reopening judicial sales, etc., on ad- 
vanced bid. — In the foreclosure of mortgages or 
deeds of trust on real estate, or by order of court 
in foreclosure proceedings either in the superior 
court or in actions at law, or in the case of the 
public sale of real estate by an executor, admin- 
istrator, or administrator with the will annexed, 
or by any person by virtue of the power con- 
tained in a will, or sale under execution duly is- 
sued the sale shall not be deemed to be closed 
under ten days. If in ten days from the date of 
the sale, the sale price is increased ten per cent 
where the price does not exceed five hundred dol- 
lars, and five per cent where the price exceeds five 
hundred dollars, and the same is paid to the clerk 
of the superior court, the mortgagee, trustee, ex- 
ecutor, or person offering the real estate for sale 
shall reopen the sale of said property and adver- 
tise the same in the same manner as in the first 
instance. The clerk may, in his discretion, re- 
quire the person making such advance bid to ex- 
ecute a good and sufficient bond in a sufficient 
amount to guarantee compliance with the terms 
of sale should the person offering the advance 
bid be declared the purchaser at the resale. 
Where the bid or offer is raised as prescribed 
herein, and the amount paid to the clerk, he shall 
issue an order to the mortgagee or other person 
and require him to advertise and resell said real 
N. iC. Supp.— 7 [ 9 



estate. It shall only be required to give fifteen 
days' notice of a resale. Resales may be had as 
often as the bid may be raised in compliance 
with this section. Upon the final sale of the real 
estate, the clerk shall issue his order to the mort- 
gagee or other person, and require him to make 
title to the purchaser. The clerk shall make all 
such orders as may be just and necessary to safe- 
guard the interest of all parties, and he shall keep 
a record which will show in detail the amount of 
each bid, the purchase price, and the final settle- 
ment between parties. This section shall not ap- 
ply to the foreclosure of mortgages or deeds of 
trust executed prior to April first, nineteen hun- 
dred and fifteen. (1915, c. 146; 1917, c. 127, ss. 
3, 4; 1919, c. 124; 1929, c. 16; 1931, c. 69; 1933, 



c. 482.) 
Editor's Note.— 

Public Laws of 1933, c. 482, 



inserted, near the end of the 



first sentence, the words "or sale under execution duly is- 
sued." 

There is nothing in the statute which deprives the court 
of its power to prescribe the terms upon which land or other 
property shall be sold under its orders, judgments or de- 
crees. Koonce v. Fort, 204 N. C. 426, 430, 168 S. E. 672. 

Deposit When No Upset Bid Is Made. — Under the provi- 
sions of this section the last and highest bidder at a fore- 
closiure sale obtains no interest in the land until the elapse 
of the ten-day period for the filing of an increased bid, and 
although the mortgagee or trustee may, in fixing the 
terms of the sale, require a reasonable cash deposit to cover 
the cost of the sale and insure completion of the sale by 
the purchaser if no upset bid is made, the reasonableness 
of such deposit n\ay be determined by analogy to the de- 
posit required for an upset bid, and a demand for a cash 
deposit at the sale amounting to twenty-five per cent of 
the bid is unreasonable. Alexander v. Boyd, 204 N. C. 103, 
167 S. E. 462. 

Power and Authority of Clerk. — 

Notwithstanding ten days have elapsed from the date of 
the sale, at the time the increased bid was made, the clerk 
has the power, in his discretion, to order a resale, without 
waiting for the expiration of twenty days within which 
parties to the proceeding might file exceptions to the sale. 
Vance v. Vance, 203 N. C. 667, 668, 166 S. E. 901. 

The order of the clerk to deliver title required by this 
section is, however, merely ministerial in its nature, and its 
omission, when in fact the trustee has, after complying with 
all the terms of the power of sale contained in the deed of 
trust, m.ade title to the purchaser, (loes not invalidate the 
foreclosure, or render the title acquired by the purchaser as 
grantee in the deed of the trustee void, solely for that rea- 
son. Cheek v. Squires, 200 N. C. 661, 668, 158 S. E. 198. 

By this section, the clerk has the power to make an al- 
lowance to the mortgagee or trustee for his services in 
making the sale, to be retained by him from the proceeds 
of the sale. From an order making such allowance, a party 
interested in the land or in the proceeds of the sale, may 
appeal to the judge, who upon such appeal may affirm, re- 
verse or modify the order of the clerk; in the absence of 
such appeal, the order of the clerk is final and conclusive. 
Tidewater Brokerage Co. v. Southern Trust Co., 203 N. C. 
182, 183, 165 S. E. 353. 

Recovery of Deposit. — Where the last and highest bidder 
at a sale of lands under decree of foreclosure has been re- 
quired under order of court to deposit a certain per cent 
of his bid in cash to show his good faith, he is entitled to 
receive his deposit back upon the entering of an order of 
resale by the clerk under the provisions of this section, up- 
on the placing of an advanced bid and cash deposit by an- 
other. Koonce v. Fort, 204 N. C. 426, 168 S. E. 672. 

Striking Out Order for Resale. — Where, on account of an 
upset bid, an order for a resale has been entered, it is er- 
ror, eleven daj's thereafter to strike out such order and de- 
clare the sale final in prejudice of further rights of mort- 
gagers. Virginia Trust Co. v. Powell, 189 N. C. 372, 127 S. 
E. 242. 

§ 2593(b). Injunction of mortgage sales on 
equitable grounds. — Any owner of real estate, or 
other person, firm or corporation having a legal 
or equitable interest therein, may apply to a judge 
of the superior court, prior to the confirmation 
of any sale of such real estate by a mortgagee, 

n 



§ 2593(c) 



MOTOR VEHICLES 



§ 2613(i5) 



trustee, commissioner or other person authorized 
to sell the same, to enjoin such sale or the con- 
firmation thereof, upon the ground that the 
amount bid or price offered therefor is inadequate 
and inequitable and will result in irreparable dam- 
age to the owner or other interested person, or 
upon any other legal or equitable ground which 
the court may deem sufficient: Provided, that 
the court or judge enjoining such sale or the con- 
firmation thereof, whether by a temporary re- 
straining order or injunction to the hearing, shall, 
as a condition precedent, require of the plaintiff 
or applicant such bond or deposit as may be nec- 
essary to indemnify and save harmless the mort- 
gagee, trustee, cestui que trust, or other person 
enjoined and affected thereby against costs, de- 
preciation, interest and other damages, if any, 
which may result from the granting of such or- 
der or injunction: Provided further, that in other 
respects the procedure shall be as is now pre- 
scribed by law in cases of injunction and receiv- 
ership, with the right of appeal to the supreme 
court from any such order or injunction. (1933, 
c. 375, s. 1.) 

§ 2593(c). Ordering resales before confirmation; 
receivers for property; tax payments. — The court 
or judge granting such order or injunction, or 
before whom the same is returnable, shall have 
the right before, but not after, any sale is con- 
firmed to order a resale by the mortgagee, trustee, 
commissioner, or other person authorized to 
make the same in such manner and upon such 
terms as may be just and equitable: Provided, 
the rights of all parties in interest, or who may 
be affected thereby, shall be preserved and pro- 
tected by bond or indemnity in such form and 
amount as the court may require, and the court 
or judge may also appoint a receiver of the prop- 
erty or the rents and proceeds thereof, pending 
any sale or resale, and may make such order for 
the payment of taxes or other prior lien as may 
be necessary, subject to the right of appeal to the 
supreme court in all cases. (1933, c. 275, s. 2.) 

§ 2593(d). Right of mortgagee to prove in de- 
ficiency suits reasonable value of property by way 
of defense. — When any sale of real estate or per- 
sonal property has been made by a mortgagee, 
trustee, or other person authorized to make the 
same, at which the mortgagee, payee or other 
holder of the obligation thereby secured becomes 
the purchaser and takes title either directly or in- 
directly, and thereafter such mortgagee, payee or 
other holder of the secured obligation, as afore- 
said, shall sue for and undertake to recover a de- 
ficiency judgment against the mortgagor, trustor 
or other maker of any such obligation whose 
property has been so purchased, it shall be com- 
petent and lawful for the defendant against whom 
such deficiency judgment is sought to allege and 
show as matter of defense and off-set, but not by 
way of counter-claim, that the property sold was 
fairly worth the amount of the debt secured by 
it at the time and place of sale or that the amount 
bid was substantially less than its true value, and, 
upon such showing, to defeat or off-set any de- 
ficiency judgment against him, either in whole 
or in part: Provided, this section shall not af- 
fect nor apply to the rights of other purchasers 
or of innocent third parties, nor shall it be held 
to affect or defeat the negotiability of any note, 

[98] 



bond or other obligation secured by such mort- 
gage, deed of trust or other instrument: Pro- 
vided, further, this section shall not apply to fore- 
closure sales made pursuant to an order or decree 
of court nor to any judgment sought or ren- 
dered in any foreclosure suit nor to any sale here- 
tofore made and confirmed. (1933, c. 375, s. 3.) 

§ 2593(e). Conflicting laws repealed; not ap- 
plicable to tax suits. — All laws and clauses of 
laws in conflict herewith, to the extent of such 
conflict only, are hereby repealed, but this act [§§ 
3593(b) -2593(e)] shall not apply to tax foreclos- 
ure suits or tax sales. (1933, c. 275, s. 4.) 

§ 2593(f). Deficiency judgments abolished where 
mortgage represents part of purchase price. — In 

all sales of real property by mortgagees and/or 
trustees under powers of sale contained in any 
mortgage or deed of trust hereafter executed, or 
where judgment or decree is given for the fore- 
closure of any mortgage executed after the ratifi- 
cation of this section to secure payment of the 
balance of the purchase price of real property, 
the mortgagee or trustee or holder of the notes 
secured by such mortgage or deed of trust shall 
not be entitled to a deficiency judgment on ac- 
count of such mortgage, deed of trust or obliga- 
tion secured by the same: Provided, said evi- 
dence of indebtedness shows upon the face that 
it is for balance of purchase money for real es-- 
tate: Provided, further, that when said note or 
notes are prepared under the direction and su- 
pervision of the seller or sellers, he, it, or they 
shall cause a provision to be inserted in said note 
disclosing that it is for purchase money of real 
estate; in default of which the seller or sellers 
shall be liable to purchaser for any loss which he 
might sustain by reason of the failure to insert 
said provision as herein set out. (1933, c. 36.) 

Art. 4. Discharge and Release 

§ 2594. Discharge of record of mortgages and 
deeds of trust. 

Not Retroactive. — This ^section has no application to a 
mortgage given prior to the passage of the section nor does 
it wipe out a valid debt existing at the time the statute 
took effect. DLxie Grocery Co. v. Hoyle, 204 N. C. 109, 113, 
167 S. 15. 469. And it is not a ground for setting aside a 
foreclosure of a mortgage given before the passage of the 
act in an action by a subsequent mortgagee. Roberson v. 
Matthews, 200 N. C. 241, 156 S. '£,. 496. 

§ 2594(a). Entry of foreclosure. 

The purchaser of lands at a foreclosure sale made in con- 
formity with a deed of trust upon lands is not affected with 
constructive notice of fraud by the omission of the trustee 
to comply with the provisions of this or the following sec- 
tion. Cheek v. Squires, 200 N. C. 661, 662, 158 S. E. 198. 



CHAPTER 55 

MOTOR VEHICLES 
Art. 3A. Gasoline Tax 
§ 2613(i5). Gallon tax. 

Our state gasoline tAx is eui excise and not a property tax. 

Stedman v. Winston-Salem, 204 N. C. 203. 167 S. E. 813. 

And it May Be Levied on Municipality. — Under the pro- 
visions of our Constitution, Art. V, sec. 5, the General As- 
sembly is prohibited from levying a property tax on prop- 
erty owned by municipal corporations, but the prohibition 
does not extend to excise taxes, and tmder the provisions of 
this section, a municipality is liable for the gasoline tax on 
gasoline bought by it in bulk and distributed by it to its 
various departments for use in its governmental functions. 
Stedman v. Winston- Salem, 204 N. C. 203, 167 S. E. 813. 



§ 2613(112) 



MOTOR VEHICLES 



§ 26 13 (i 12) c 



§ 2613(il2). Actions for tax; double liability. — 
If any person, firxn or corporation shall fail to 
pay the amount of tax levied in section 2613 (i5) 
within the time specified in section 2G13(i6) of 
this act, it shall be the duty of the commissioner 
of revenue to proceed at once to enforce the pay- 
ment of said tax, and to this end the commis- 
sioner of revenue shall have and may exercise all 
the remedies provided in the revenue laws of the 
state for enforcing payment of other taxes, in- 
cluding the right of execution through the sher- 
iffs of the several counties of the state upon any 
property of the delinquent taxpayer, and shall 
with the assistance of the attorney general when- 
ever necessary bring appropriate action in the 
courts of the state for the recovery of such tax. 
If it shall be found as a fact that such failure to 
pay was willful on the part of such person, firm 
or corporation, judgment shall be rendered against 
such person, firm or corporation for double the 
amount of tax found to be due, together with 
interest, and the amount of taxes and penalties 
shall be paid into the state treasury to the credit 
of the state highway fund. All remedies which 
now or may hereafter be given by the laws of 
the state of North Carolina for the collection of 
taxes are expressly given herein for the collec- 
tion of taxes levied in this article or of judgment 
recovered under authority of this article. It shall 
also be the duty of the commissioner of revenue 
to revoke the license of any licensed distributor 
who shall refuse, fail or neglect to pay the taxes 
levied in section 2613 (i5) within the time specified 
in section 2613 (i6), and whose account shall re- 
main delinquent for any part of said tax for ten 
days thereafter: Provided, that in consideration 
of the reduction by thirty days of time previously 
allowed before enforcing payment of this tax 
the commissioner of revenue may find the cor- 
rect amount of accrued tax liability for the last 
thirty days next preceding the effective date of 
this act, and may permit the said sum of delin- 
quency to be divided into twelve equal monthly 
payments to be paid on the twentieth day of each 
succeeding twelve months, plus interest at the 
rate of six per cent per annum on deferred pay- 
ments and upon failure of any distributor to meet 
any such deferred payment at the time specified 
or within ten days thereafter, together with the 
current monthly liability, it shall be the duty of 
the commissioner of revenue to revoke the license 
of any such distributor and to proceed to enforce 
payment of the whole amount that may be due 
by said distributor. (1933, c. 137, s. 1.) 

Editor's Note.— Public I^aws of 1933, c. 137, repealed this 
section as it formerly read and substituted the above in 
lieu thereof. A comparison of the two sections is necessary 
to determine the changes. 

§ 2613(il2)a. Auditing books of licensed dis- 
tributors. — It shall be the duty of the commis- 
sioner of revenue, by competent auditors, to have 
the books and records of every licensed distribu- 
tor in the state examined at least twice each year 
to determine if such distributor is keeping com- 
plete records as provided in section 2613 (i8), and 
to determine if correct reports have been made 
to the state department of revenue by every such 
distributor covering the total amount of tax lia- 
bility of such licensed distributor. It shall also 
be the duty of such auditors to check the records 



of each distributor with the records of shipment 
by railroad companies, or by boats or trucks, or 
other available sources of information, and also 
to check the records covering the receipt and dis- 
tribution of any other liquid petroleum products 
handled by each distributor. (1933, c. 137, s. 1.) 

§ 2613(il2)b. License constitutes distributor 
trust officer of state for collection of tax. — The 

licensing of any person, firm or corporation as 
a wholesale distributor of gasoline shall consti- 
tute such distributor an agent or trust officer of 
the state for the purpose of collecting the tax 
on the sale of gasoline imposed in this article, 
and the failure of any such person, firm or cor- 
poration who adds the amount of the tax levied 
in this article to the customary market price for 
gasoline and collects the same and who shall fail 
to remit the gasoline tax to the commissioner of 
revenue upon the terms and as provided herein, 
such failure shall constitute embezzlement of 
state funds, and upon conviction under this sec- 
tion any individual, partner or officer or agent of 
any association, partnership or corporation shall 
be guilty of a felony, and upon conviction shall 
be fined or imprisoned in the discretion of the 
court. (1933, c. 137, s. 1.) 

§ 2613(il2)c. Boats and vehicles transporting 
motor fuels must register. — The owner or operator 
of any motor vehicle using the highways of this 
state, or the owner or operator of any boat using 
the waters of this state, transporting into, out 
of, or between points in this state, any gasoline 
or liquid motor fuel taxable in this state, or any 
liquid petroleum product that is, or may be here- 
after made, subject to the inspection laws of this 
state, shall, as a prerequisite to the transporta- 
tion of such products over the highways or wa- 
ters of this state, register such intention with 
the commissioner of revenue in advance of such 
transportation, with notice of the kind and char- 
acter of such products to be transported, and if 
by motor vehicle the license and motor number 
of each motor vehicle intended to be used in such 
transportation. Upon the filing of such informa- 
tion, together with an agreement to comply with 
the provisions of this article, the commissioner 
of revenue shall, without any charge therefor, is- 
sue a numbered certificate to such owner or op- 
erator for each motor vehicle intended to be used 
for such transportation, which numbered cer- 
tificate shall be prominently displayed on the mo- 
tor vehicle or boat used in transporting the 
products named in this section. Every person 
hauling, transporting, or conveying gasoline over 
any of the public highways of this state shall, 
during the entire time he is so engaged, have in 
his possession an invoice, or bill of sale, or other 
record evidence showing the true name and ad- 
dress of the person from whom he has received 
the gasoline, and the number of gallons so orig- 
inally received by him from said person, and the 
true name and address of every person to whom 
he has made deliveries of said gasoline, or any 
part thereof, and the number of gallons so de- 
livered to each of said persons. The person haul- 
ing, transporting or conveying such gasoline shall, 
at the request of any representative of the com- 
missioner of revenue, produce and offer for in- 
spection said invoice or bill of sale, or record evi- 



[99] 



§ 2613(il5) 



MOTOR VEHICLES 



§ a613(il5) 



dence. If said person fails to produce the 
invoice or bill of sale, or record evidence, or if, 
when produced, it fails to clearly disclose said in- 
formation, the same shall be prima facie evidence 
of a violation of this section. No person shall 
haul, transport or convey gasoline over any of 
the public highways of the state except in vehi- 
cles plainly and visibly marked on the rear thereof 
with the word "gasoline" or other name of the 
motor fuel being transported, in letters at least 
four inches high and of corresponding appropriate 
width, together with the name or trade mark of 
the owner of the vehicle in which such gasoline 
is contained displayed in a conspicuous place on 
the vehicle. Any person guilty of violating any 
of the provisions of this sub-section shall be guilty 
of a misdemeanor, and upon conviction shall be 
fined or imprisoned in the discretion of the court. 
(1933, c. 137, s. 1.) 

§ 2613(115). Fuels purchased for farm tractors, 
motor boats and manufacturing processes entitled 
to rebates. — Any person, association, firm, or cor- 
poration, who shall buy in quantities of ten gal- 
lons or more at any one time any motor fuels as 
defined in this article for the purpose of use, and 
the same is actually used, for a purpose other 
than the operation of a motor vehicle designed 
for use upon the highways, on which motor fuels 
the tax imposed by this article shall have been 
paid, shall be reimbursed at the rate of five cents 
per gallon of the amount of such tax or taxes 
paid under this article, upon the following con- 
ditions and in the following manner: 

(a) Before using such motor fuels the per- 
son, association, firm, or corporation proposing 
to use the same shall apply to the commissioner 
of revenue, upon blanks to be furnished by him, 
for a refund permit. Such application shall state 
the use for which the motor fuels for which taxes 
are to be refunded are to be used. If such motor 
fuels are to be used in a gasoline motor or en- 
gine, the application shall state the make and 
kind of such motor, the serial number thereof, 
and the purpose for which it is proposed to use 
the same. If such motor fuels are to be used for 
some purpose other than the operation of an en- 
gine, the application shall state the nature and 
kind of process in which such motor fuels are 
to be used, and the method and manner in which 
such motor fuels are to be used, stored and kept. 
In all cases such application shall state the ap- 
proximate number of gallons of such motor fuels 
to be used per month, and shall give such other 
information as the commissioner of revenue shall 
require. In making application for refund permit, 
the person making application may combine one 
or more of the uses above specified in the same 
application. Dealers in motor fuel engaged in 
selling such fuel to motor boats owned by non- 
residents, and which boats are not documented 
in this state, may apply to the commissioner of 
revenue for a permit on forms to be prescribed 
by the commissioner of revenue, which permit 
shall entitle the said dealer to be furnished with 
blanks by the commissioner of revenue in such 
form as may be prescribed by him, for the use 
of such non-resident boat owners to file appli- 
cations for refunds as provided in this article, and 
said non-resident boat owners shall not be re- 
quired to secure permits. Such application for 



refund shall be filed in the name of the non- 
resident boat owner on blanks furnished by deal- 
ers holding permits. Said applications must be 
accompanied by an invoice of the dealer holding 
permit, showing the number of gallons of motor 
fuel delivered into the tanks of said boats and 
shall furnish such other information as the com- 
missioner of revenue shall require. Applications 
must be sworn to before a notary public of this 
state and filed with the commissioner of reve- 
nue. Upon approval of said applications by the 
commissioner of revenue, said applications shall 
be paid as other applications for refund are paid: 
Provided, however, that such non-residents must 
file applications with the commissioner of rev- 
enue within thirty days from the date of pur- 
chase of said gasoline and that said applications 
may be paid immediately upon approval. The 
application shall be accompanied by a fee of one 
dollar, to be returned if the refund permit is not 
issued. Such fees, if retained, shall be paid by 
the commissioner of revenue to the state treas- 
urer, to be credited by him to the state highway 
fund. 

(b) If, upon the filing of such application, 
the commissioner of revenue shall be satisfied 
that the same is made in good faith and that the 
motor fuels upon which the said tax refund is 
requested are to be used exclusively for one of 
the purposes set forth above and specified in 
said application, he shall issue to said applicant 
a refund permit specifying the terms and con- 
ditions under which refunds on such motor fuels 
will be made, which refund permits will expire 
with the fiscal year in which it is issued. Re- 
fund permits issued under this article shall state 
the name of the person, association, firm, or 
corporation to whom and for whose benefit it 
is issued, the purposes for which the motor fuels 
upon which tax refunds are to be made under 
the provisions thereof are to be used and the 
approximate number of gallons expected to be 
used per month for such purposes, and the com- 
missioner of revenue shall determine such amount. 
Such refund permits shall bear serial numbers 
and shall not be transferable, nor shall any right 
or claim for refund under the same be transfera- 
ble: Provided, however, that the commissioner 
of revenue shall not be required to issue any re- 
fund permit for use of motor fuels unless and 
until the applicant therefor shall have satisfied 
the commissioner of revenue that provisions have 
been made for the storage of such motor fuels in 
a manner prescribed by the commissioner of rev- 
enue, so as to segregate the same from motor 
fuels for use in vehicles upon the highways. 

(c) All claims for refunds for tax or taxes 
for motor fuels under the provisions of this ar- 
ticle shall be filed with the commissioner of rev- 
enue on forms to be prescribed by him, between 
the first and the fifteenth day of January, April, 
July, and/or October of each year, and at such 
periods only, and shall cover only the motor fuels 
so used during the three months immediately pre- 
ceding the filing of such application. Such ap- 
plication shall be accompanied by ticket, invoice, 
or other document from the retail dealer or dis- 
tributor for motor fuels, issued at the time of 
purchase of such motor fuel and showing the 
purchase of the number of gallons of motor fuels 



[100] 



§ 2613 (il6) 



MOTOR VEHICLES 



§ 2613(il6) 



on which said refund is requested, and upon which 
shall be written or stamped at the time of pur- 
chase appropriate words showing the purpose for 
which the said motor fuel is purchased and that 
refund will be requested. The application shall 
be sworn to before the clerk of the superior court 
or a notary public of the county in which the ap- 
plicant resides or has his place of business, and 
such attesting ofificer is authorized to charge 
therefor a fee of not exceeding twenty-five cents. 

(d) If the commissioner of revenue shall be 
satisfied that the motor fuels specified in such ap- 
plication for refund have been legitimately used 
for the purpose specified in the refund permit is- 
sued to such applicant, he shall issue to such ap- 
plicant a warrant upon the state treasurer for the 
said taxes paid on such motor fuels under this 
article. 

(e) No refund of tax or taxes shall be paid 
on motor fuels except under a refund permit and 
to the person, association, firm, or corporation 
named in said refund permit in the manner herein 
provided for. 

(f) If the commissioner of revenue shall be 
satisfied that the holder of any refund permit is- 
sued under the provisions of this act has violated 
the conditions thereof, or has collected or sought 
to collect any refund of tax or taxes thereunder 
upon any motor fuels not used in strict accord- 
ance with said refund permit, he shall issue notice 
to the holder of such refund permit to show cause 
why the refund permit should not be cancelled, 
which notice shall state a time and place of hear- 
ing upon said notice. If upon such hearing the 
commissioner shall find as a fact that the permit 
holder has violated the terms of his permit, he 
shall cancel such refund permit and the holder 
thereof shall be required to repay all tax or taxes 
which have been refunded to him under such 
permit. 

(g) Any applicant for a refund permit or any 
holder of a refund permit may appeal from the 
decision of the commissioner of revenue upon 
any matters arising under this section to the state 
board of assessment, who shall hear the matters 
presented on such appeal at a time and place to 
be fixed by said state board of assessment. Such 
state board of assessment shall have authority to 
cause the attendance of witnesses in behalf of 
such applicant or of the commissioner of revenue, 
and shall have authority to administer oaths and 
take testimony. 

(h) The commissioner of revenue is hereby 
authorized and directed, if at any time in his opin- 
ion there is reason to doubt the accuracy of the 
facts set forth in any application for tax refund, 
to refer the matter to any agent of the depart- 
ment of revenue or to any member of the state 
highway patrol, and such person so designated 
shall make a careful investigation of all the facts 
and circumstances relating to said application in 
the use of the motor fuel therein referred to, and 
shall have a right to have access to the books and 
records of any retailer or distributor of motor 
fuel products for the purpose of obtaining the 
necessary information concerning such matters, 
and shall make due report thereof to the commis- 
sioner of revenue. 

(i) That if any court of last resort shall hold 
that the provisions for refund herein set out shall 

[10 



render the levying and collecting of the tax here- 
inbefore provided invalid, it is the intention of the 
general assembly that such provisions for refund 
shall be annulled and the tax shall be levied with- 
out any provisions for such refund and that this 
article shall be so construed. 

Any person making a false return or affidavit 
for the purpose of securing a refund to which he 
is not entitled under the provisions of this article 
shall be guilty of a misdemeanor, and upon con- 
viction thereof shall be fined not exceeding five 
hundred dollars ($500.00), or imprisoned not ex- 
ceeding two years, in the discretion of the court. 
(1933, c. 211, s. 1.) 

Editor's Note. — Public Laws of 1933, c. 211, repealed this 
section as it formerly read and substituted the above in lieu 
thereof. A comparison of the two sections is necessary to 
determine the changes. 

§ 2613(il6). Reports of carriers. — Every per- 
son, firm or corporation engaged in the business 
of, or transporting motor fuel, whether common 
carrier or otherwise, and whether by rail, water, 
pipe line or over public highways, either in inter- 
state or in intrastate commerce, to points within 
the state of North Carolina, and every person, 
firm or corporation transporting motor fuel by 
whatever manner to a point in the state of North 
Carolina from any point outside of said state shall 
be required to keep for a period of two years from 
the date of each delivery records on forms pre- 
scribed by, or satisfactory to, the commissioner 
of revenue of all receipts and deliveries of motor 
fuel so received or delivered to points within the 
state of North Carolina, including duplicate orig- 
inal copies of delivery tickets or invoices covering 
such receipts and deliveries, showing the date of 
the receipt or delivery, the name and address of 
the party to whom each delivery is made, and the 
amount of each delivery; and shall report, under 
oath, to the commissioner of revenue, on forms 
prescribed by said commissioner of revenue, all 
deliveries of motor fuel so made to points within 
the state of North Carolina. Such reports shall 
cover monthly periods, shall be submitted within 
the first ten days of each month covering all 
shipments transported and delivered for the pre- 
vious month, shall show the name and address of 
the person to whom the deliveries of motor fuel 
have actually and in fact been made, the name 
and address of the originally named consignee if 
motor fuel has been delivered to any other than 
the originally named consignee, the point of ori- 
gin, the point of delivery, the date of delivery, 
and the number and initials of each tank car, 
and the number of gallons contained therein if 
shipped by rail; the name of the boat, barge or 
vessel, and the number of gallons contained 
therein, and the consignor and consignee if 
shipped by water; the license number of each 
tank truck and the number of gallons contained 
therein, and the consignor and consignee if trans- 
ported by motor truck; if delivered by other 
means the manner in which such delivery is made; 
and such other additional information relative to 
shipments of motor fuel as the commissioner of 
revenue may require: Provided, that the com- 
missioner of revenue may modify or suspend the 
provisions of this section with regard to reports 
of interstate or intrastate shipments or deliveries 
upon application of any licensed distributor: Pro- 

1] 



§ 2613(il7) 



MOTOR VEHICLES 



§ 2621(16) 



vided, also, that the commissioner of revenue shall 
have full power to require any distributor to make 
additional reports and to produce for examina- 
tion duplicate originals of delivery tickets or in- 
voices covering both receipts and deliveries of 
products as herein provided. The reports herein 
provided for shall cover specifically gasoline, kero- 
sene, benzine, naphtha, crude oil, or any distil- 
lates from crude petroleum. Any person, firm or 
corporation refusing, failing or neglecting to make 
such report shall be guilty of a misdemeanor, and 
upon conviction shall be fined or imprisoned in 
the discretion of the court. (1933, c. 137, s. 1.) 

Editor's Note. — 

Public Laws of 1933, c. 137, repealed this section as it 
formerly read and substituted the above in lieu thereof. A 
comparison of the two sections is necessary to determine the 
changes. 

§ 2613(117). Forwarding of information to other 
states. — The commissioner of revenue of the state 
of North Carolina shall, upon request duly re- 
ceived from the ofificials to whom are intrusted 
the enforcement of the motor fuel tax laws of any 
other state, forward to such officials any informa- 
tion which he may have in his possession relative 
CO the manufacture, receipt, sale, use, transporta- 
tion or shipment by any person of motor fuel. 
(1929, c. 230, s. 1; 1933, c. 137, s. 1.) 

Art. 3B. Motor Busses 

§ 2613(1). Application for franchise certificate. 

— Every corporation or person, their lessees, 
trustees, or receivers, before operating any motor 
vehicle upon the public highways of the state 
for the transportation of persons or property for 
compensation, within the purview of this act, 
shall apply to the commission and obtain a fran- 
chise certificate authorizing such operation, and 
such franchise certificate shall be secured in the 
manner following: 

(f) The commission may refuse to grant any 
application for a franchise certificate where the 
granting of such application would duplicate, in 
whole or in part, a previously authorized similar 
class of service, unless it is shown to the satisfac- 
tion of the commission that the existing opera- 
tions are not providing sufficient service to rea- 
sonably meet the public convenience and neces- 
sity and the existing operators, after thirty days' 
notice, fail to provide the service required by the 
commission: Provided, that where two or more 
highways intersect within less than twenty-five 
miles of any incorporated city and the business 
of such lines transacted at such intersection is 
insufficient to warrant the maintenance of a bus 
station, then the commission may in its discre- 
tion route all operators to the next city in which 
a bus station is established and maintained. 
(1925, c. 50, s. 3, c. 137; 1927, c. 136, s. 3; 1931, 
C. 182; 1933, c. 440, s. 1.) 

Editor's Note. — Siibsection (f) of this section formerly pro- 
vided that the commission could not refuse to grant the cer- 
tificate because of the multiplicity of operators over the 
proposed route. As subsection (f) is the only one affected by 
Public Laws 1933, c. 440, it is the only one shown above. 

§ 2613(z): Repealed by Public Laws 1933, c. 
440. 

Art. 4. Operation of Vehicles 

§ 2616. Driving regulations; frightened ani- 
mals; crossings. 

Cross Reference. — As to sid)mitting evidence of violation 

[ 102 



of this and other sections to show reckless driving-, in a 
prosecution for manslaughter, see § 2621 and the note thereto. 

§ 2617. Rule of the road in passing. 

Act Must Have Been Likely to Cause Harm. — One who 

violated the provisions of this section or § 2618. not inten- 
tionally or recklessly, but merely through a failure to exer- 
cise due care and thereby proximately caused the death he 
would not be culpably negligent unless in the light of the 
attendant circumstances his negligent act was likely to re- 
sult in death or bodily harm. State v. Stansell, 203 N. C. 
69, 74, 164 S. E. 580. 

§ 2618. Speed regulations; mufflers. 

As to the culpable negligence of one violating the provi- 
sions of this section, see annotations under § 2617. 

Art. 7. The Motor Vehicle Act; Department of 
Motor Vehicles; Registration 

§ 2621(3). Duties of department and vehicle 
commissioner. — (a) It shall be the duty of the 
department and all officers thereof to enforce the 
provisions of this act. 

(b) The vehicle commissioner is hereby au- 
thorized to adopt and enforce such administrative 
rules and regulations and to designate and ap- 
point such agents and deputies not to exceed six 
in number: Provided, that the number of patrol- 
men employed under this section shall not exceed 
sixty-seven (67), to carry out the provisions of 
this act and such agents and deputies are hereby 
given police power and authority throughout the 
state, to arrest without writ, rule, order or process 
any person in the act of violating or attempting to 
violate in his presence any of the provisions of 
this act, and are hereby made peace officers of 
this state for that purpose. He shall also pro- 
vide suitable forms for applications, certificates 
of title and registration cards, license number 
plates, certificate holders, and all other forms 
requisite for the purpose of this act, and shall 
prepay all transportation charges thereon. (1927, 
c. 122, s. 3; 1933, c. 214, s. 10.) 

Editor's Note.— Public Laws of 1933, c. 214, added the pro- 
viso limiting the number of patrolmen to sixty-seven. 

§ 2621(16). Transfer of title or interest— (a) 
The owner of a vehicle registered under the fore- 
going provisions of this act, transferring or as- 
signing his title or interest thereto, shall endorse 
an assignment and warranty of title in form ap- 
proved by the department upon the reverse side 
of the certificate of title or execute an assign- 
ment and warranty of title of such vehicle with a 
statement of all liens or encumbrances thereon, 
which statement shall be verified under oath by 
the owner, who shall deliver the certificate of ti- 
tle to the purchaser or transferee at the time of 
delivering the vehicle, except that where a deed 
of trust, mortgage, conditional sale or title re- 
taining contract is obtained from purchaser or 
transferee in payment of purchase price, or oth- 
erwise, the lien holder shall forward such certifi- 
cate of title papers with said deed of trust, mort- 
gage, conditional sale or title retaining contract, 
to the departinent within ten days: Provided, 
that the said commissioner of revenue shall, upon 
and after inspection of said chattel mortgages, 
notes, deeds of trust, etc., return same to the 
owner or owners thereof, within ten days after 
such inspection. 

(b) The transferee shall thereupon write his 
name and address with pen and ink upon the cer- 
tificate of title or assignment, and except as pro- 



§ 2621(17) 



MOTOR VEHICLES 



§ 2621(29) 



vided in the next subdivision of this section shall 
forward such certificate and assignment to the 
department with an application for the registra- 
tion of such vehicle and for a certificate of title 
within ten days after the date of purchase. 

(c) When the transferee of a vehicle is a dealer 
who holds the same for resale and operates the 
same only for purposes of demonstration under a 
dealer's number plates, such transferee shall not 
be required to register such vehicle nor forward 
the certificate of title to the department as pro- 
vided in the preceding paragraph, but such trans- 
feree upon transferring his title or interest to an- 
other person shall give notice of such transfer to 
the department and shall execute and acknowl- 
edge an assignment and warranty of title in form 
approved by the department and deliver the same 
to the person to whom such transfer is made. 

(d) The department, upon receipt of a certifi- 
cate of title properly assigned and acknowledged, 
accompanied by an application for registration 
and necessary fees, shall register the vehicle, 
therein described and shall issue to the person 
entitled thereto by reason of such transfer, a 
new registration card and certificate of title in 
the manner and form hereinbefore provided for 
original registration, except that where there is a 
lien upon such vehicle, the certificate of title when 
issued shall be mailed to the lien holder. 

(e) Whenever the applicant for the registra- 
tion of a vehicle or a new certificate of title 
thereto is unable to present a certificate of title 
thereto by reason of the same being lost or un- 
lawfully detained by one in possession, or the 
same is otherwise not available, the department 
is hereby authorized to receive such application 
and to examine into the circumstances of the 
case and may require the filing of affidavits or 
other information, and when the department is 
satisfied that the applicant is entitled thereto, is 
hereby authorized to register such vehicle and 
issue a new registration card number plate or 
plates and certificate of title to the person en- 
titled thereto. 

(f) In the event of the transfer by operation 
of law of the title or interest of an owner in and 
to a vehicle registered under the provisions of 
this act, order in bankruptcy or insolvency, execu- 
tion sale, repossession upon default in performing 
the terms of a lease or executory sales contract or 
otherwise than by the voluntary act of the per- 
son whose title or interest is so transferred, the 
Transferee or his legal representative shall make 
application to the department for a certificate of 
title therefor, giving the name and address of the 
person entitled thereto, and accompanying such 
application with the registration card and certifi- 
cate of title previously issued for the vehicle, if 
available, together with such instruments or 
documents of authority, or certified copies there- 
of, as may be required by law to evidence or ef- 
fect a transfer of title or interest in or to chattels 
in such case, together with the number plate 
originally issued. The department, when satis- 
fied of the genuineness and regularity of such 
transfer, shall cancel the registration and license 
of such vehicle and issue a new certificate of title 
and license therefor to the person entitled there- 
to, upon payment of necessary fees. The trans- 
feree may also apply for and obtain the registra- 



tion of such vehicle. In the event of transfer, 
as upon inheritance, devise or bequest, the depart- 
ment shall, upon receipt of a certified copy of a 
will, letters of administration and/or a certificate 
from the clerk of the superior court showing that 
the motor vehicle registered in the name of the 
decedent owner has been assigned to his widow 
as a part of her year's support, transfer both title 
and license as provided in sub-section (d). (1927, 
c. 122, s. 15; 1929, c. 72, s. 4, c. 273, s. 5; ]93,S, c. 
344.) 

Editor's Note. — 

Public Laws 1933, c. 344, inserted the last sentence of this 
section relating to transfer to heirs, legatees, or devisees. 

§ 2621(17). Registration by manufacturers and 
dealers. — (a) A manufacturer of or dealer in mo- 
tor vehicles, trailers or semi-trailers, owning or 
operating any such vehicle or any vehicle known 
as a wrecker and owned by a dealer upon any 
highway in lieu of registering each such vehicle 
may obtain from the department upon applica- 
tion therefore upon the proper official form and 
payment of the fees required by law and attach to 
each such vehicle one number plate, which plate 
shall each bear thereon a distinctive number, also 
the name of this state, which may be abbreviated, 
and the year for which issued, together with the 
word "dealer" or a distinguishing symbol indicating 
that such plate or plates are issued to a manufac- 
turer or dealer, and any such plates so issued 
may, during the calendar year for which issued, 
be transferred from one such vehicle to another 
owned and operated by such manufacturer or 
dealer. 

(b) Every manufacturer of or dealer in motor 
vehicles, trailers or semi-trailers shall obtain and 
have in possession a certificate of title issued by 
the department to such manufacturer or dealer, 
or to the immediate vendor of such manufacturer 
or dealer for each motor vehicle, trailer and semi- 
trailer owned and operated upon the highways 
by such manufacturer or dealer, except that a cer- 
tificate of title shall not be required for any new 
vehicle to be sold as such by a manufacturer or 
dealer, prior to the sale of such vehicle by the 
manufacturer or dealer. 

(c) No manufacturer of or dealer in motor 
vehicles, trailers or semi-trailers shall cause or 
permit any such vehicle owned by such person 
to be operated or moved upon a public highway 
without there being displayed upon such vehicle 
a number plate or plates issued to such person, 
either under section thirteen or under this sec- 
tion. 

(d) No manufacturer of or dealer in motor 
vehicles, trailers or semi-trailers shall cause or 
permit any such vehicle owned by such person 
or by any person in his employ which is in the 
personal use of such person or employee to be 
operated or moved upon a public highway with 
a "dealer" plate attached to such vehicle. (1927, 
c. 122, s. 16; 1933, c. 360.) 

Editor's Note.— 

Public Laws 1933, c. 360, inserted, near the beginning of 
this section, the word "or any vehicle known as a wrecker 
and owned by a dealer." 

§ 2621(29). Registration fees. — It shall be un- 
lawful to operate upon the public highways of this 
state any motor vehicles, except the same shall 



[103] 



§ 2621(29) 



MOTOR VEHICLES 



§ 2621(29) 



be duly licensed according to the following sched- 
ules and classifications: 

(a) Passenger Vehicles 

There shall be paid to the department of reve- 
nue annually, as of the first day of January, for 
the registration and licensing of passenger ve- 
hicles, fees according to the following classifica- 
tions and schedules: 

(1) Franchise Bus Carriers. — Passenger mo- 
tor vehicles operating under a franchise certificate 
issued by the corporation commission under chap- 
ter fifty of the public laws of one thousand nine 
hundred and twenty-five, and amendments there- 
to, for operation on the public highways of this 
state between fixed termini or over a regular route 
for the transportation of persons or property for 
compensation shall be classified as "franchise bus 
carriers." 

(2) "U-Drive-It" Passenger Vehicles. — Pas- 
senger motor vehicles used for the purpose of rent 
or lease to be operated by the lessee shall be 
classified as " 'u-drive-it' passenger vehicles." 

(3) "For Hire" Passenger Vehicles. — Passenger 
motor vehicles engaged in the business of trans- 
porting passengers for compensation shall be 
classified as "'for hire' passenger vehicles"; but 
this classification shall not include motor vehicles 
of seven-passenger capacity or less operated by 
the owner where the cost of operation is shared 
by a neighbor fellow-workman between their 
homes and the place of regular daily employment. 

(4) Excursion Passenger Vehicles. — - Passen- 
ger vehicles kept and used for the purpose of 
transporting persons on sightseeing or travel 
tours shall be classified as "excursion passenger 
vehicles." 

(5) Private Passenger Vehicles. — All other 
passenger vehicles not included in the above defi- 
nitions shall be classified as "private passenger 
vehicles." 

Schedule of Rates 

(6) Franchise Bus Carriers.- — Franchise bus 
carriers shall pay an annual license tax of ninety 
cents per hundred pounds weight of each vehicle 
unit, and in addition thereto six per cent of the 
gross revenue derived from such operation: Pro- 
vided, said additional six per cent shall not be 
collectible unless and until and only to the ex- 
tent that such amount exceeds the license tax 
of ninety cents per hundred pounds; and pro- 
vided further, that franchise bus carriers operated 
between point or points within this state and 
point or points without this state shall be re- 
quired to account as compensation for the use of 
the highways of this state and the special privi- 
leges extended such carriers by this state, in 
computing the six per cent tax, only on that pro- 
portion of the gross earnings which correspond to 
the proportion of mileage in this state as com- 
pared with the total mileage, but in no event shall 
the tax paid by such franchise bus carriers be less 
than ninety cents per hundred pounds weight for 
each vehicle. In computing said gross earnings, 
revenue derived from transportation of United 
States mail, or other United States Government 
services, shall not be included, and amounts ex- 
pended for tolls in using toll bridges shall be de- 
ducted from gross revenues. All revenue, except 
as hereinbefore provided, collected by such fran- 



chise bus carriers, whether on fixed schedule 
routes or by special trips, shall be included in the 
gross income upon which said tax is based. 

(7) "U-Drive-It" Passenger Vehicles. — "U- 
Drive-It" passenger vehicles shall pay the follow- 
ing tax: 



Motorcycles: 

1 passenger 

2 passenger 

3 passenger 



capacity $12.00 

capacity 15.00 

capacity 18.00 



Automobiles: 

One dollar and ninety cents per hundred 
pounds weight of each such vehicle. 

(8) "For Hire" Passenger Vehicles. — "For hire" 
passenger vehicles shall be taxed at a rate of one 
dollar and ninety cents per hundred pounds of 
weight. 

(9) Excursion Passenger Vehicles. — Excur- 
sion passenger vehicles shall be taxed at the rate 
of eight dollars per passenger capacity, with a 
minimum charge of twenty-five dollars. 

(10) Private Passenger Vehicles. — Private pas- 
senger vehicles shall be taxed at fifty-five cents 
per hundred pounds of weight or major fraction 
thereof, according to the manufacturer's shipping 
weight: Provided, that no fee for any private 
passenger vehicle shall be less than twelve dollars 
and fifty cents. Private passenger motorcycles 
shall pay for each motorcycle five dollars, and for 
each side-car five dollars. 

(11) Motor Vehicle Dealers. — Dealers in mo- 
tor vehicles for demonstration tags shall pay as a 
registration fee and for one set of plates, twenty- 
five dollars, and for each additional set of plates 
one dollar. 

(12) Licensees Protected. — No person, part- 
nership, association or corporation shall maintain 
an office or place of business in which or through 
which persons desiring transportation for them- 
selves or their baggage are brought into contact 
by advertisement or otherwise with persons own- 
ing or operating motor vehicles and willing to 
transport other persons, or baggage, for compen- 
sation, or on a division of expense basis, unless 
the owner or operator of such motor vehicle fur- 
nishing the transportation has qualified under the 
tax provisions of this act for the class of service 
he holds himself out to perform. 

(b) Property Hauling Vehicles 

There shall be paid to the department of rev- 
enue annually, as of the first day of January, for 
the registration and licensing of trucks, truck- 
tractors, trailers, and semi-trailers, fees accord- 
ing to the following classifications and schedules: 

The term "for hire" as used in these classifica- 
tions shall include every arrangement by which 
the owner of a motor vehicle for compensation 
permits such vehicle to be used for the transporta- 
tion of the property of another: Provided, it 
shall not be construed to include an arrangement 
by which two or more farmers share in the cost 
of transporting their farm produce or livestock 
from the farm to the first or primary market, 
whether the truck be jointly or severally owned. 

(1) Contract Hauler Vehicles. — Motor ve- 
hicles used for the transportation of property for 
hire, but not licensed as common carriers under 
the provisions of chapter one hundred thirty-six 



[104] 



§ 26ai(29) 



MOTOR VEHICLES 



§ 2621(29) 



of the public laws of one thousand nine hundred 
and twenty-seven, and amendments thereof, shall 
be classified as "contract hauler vehicles": Pro- 
vided, this classification shall not include persons 
distributing goods of another on consignment, on 
conditional sale, or on commission basis. 

(2) Franchise Hauler Vehicles. — Motor ve- 
hicles used for the transportation of property on 
specified routes between fixed termini, with the 
right to make occasional trips ofif said route, as 
provided in chapter one hundred and thirty-six of 
the public laws of one thousand nine hundred and 
twenty-seven, and amendments thereof, shall be 
classified as "franchise hauler vehicles"; Pro- 
vided, only such vehicles shall be so classified as 
the corporation commission shall determine to be 
reasonably necessary for the proper handling of 
the business on the said route, and the determina- 
tion so arrived at duly certified by the corporation 
commission to the motor vehicle department. 

(3) Private Hauler Vehicles. — All motor ve- 
hicles used for the transportation of property not 
falling within the above defined classification shall 
be classified as "private hauler vehicles." 

(4) Determination of Weight. — For the pur- 
pose of licensing, the weight of the several classes 
of motor vehicles used for transportation of prop- 
erty shall be gross weight and load, to be deter- 
mined by the manufacturer's gross weight capac- 
ity as shown in an authorized national publication, 
such as commercial car journal or the statistical 
issue of automotive industries, all such weights 
subject to verification by the commissioner of 
revenue or his authorized deputy, and if no such 
gross weight on any vehicle is available in such 
publication, then the gross weight shall be deter- 
mined by the commissioner of revenue or his au- 
thorized agent, but such calculation shall be made 
only in units of one thousand pounds or major 
fractions thereof, weights of less than five hun- 
dred pounds being disregarded and weights of 
five hundred pounds or over being counted as one 
thousand. Semi-trailers, licensed for use in con- 
nection with a truck-tractor, shall in no case be 
licensed for less gross weight capacity than the 
truck-tractor with which it is to be operated. 

Schedule of Rates 

(5) Rate Per Hundred Pounds Gross Weight: 

Franchise 
Private Contract Hauler 
Hauler Hauler (Deposit) 
Gross weight under 8,000 

pounds $ .40 $ .85 $ .60 

8,000 pounds to 12,500, 

inclusive 50 1.00 .60 

Over 12,500 pounds to 

16,000, inclusive 60 1.15 .60 

Over 16,000 pounds 70 1.30 .60 

The minimum rate for any vehicle licensed un- 
der this section shall be fifteen dollars. 

The rate on trucks wholly or partially equipped 
with solid tires shall be double the above sched- 
ule. 

(6) Franchise Haulers. — Franchise haulers 
shall pay an annual license tax as per the above 
schedule of weight of each vehicle unit (except on 
trucks licensed for inter-state routes and used ex- 
clusively for inter-state business, where more than 
fifty per cent of the designated route lies outside of 



the state of North Carolina, the required deposit 
may be reduced by the commissioner of revenue to 
fifty per cent of the schedule rate), and in addition 
thereto six per cent of the gross revenue derived 
from such operation: Provided, said additional 
six per cent shall not be collectible unless and un- 
til and only to the extent that such amount ex- 
ceeds the license tax per the above schedule; and 
provided further, that franchise haulers operated 
between point or points within this state and 
point or points without this state shall be re- 
quired to account as compensation for the use of 
the highways of this state and the special privi- 
leges extended such carriers by this state in 
computing the six percent tax only on that pro- 
portion of the gross earnings which correspond 
to the proportion of the mileage in this state as 
compared with the total mileage, but in no event 
shall the tax paid by such franchise haulers be 
less than the license tax shown on the above 
schedule. In computing said gross earnings, rev- 
enue derived from transportation of United 
States mail, or other United States government 
services, shall not be included. All revenue, 
except as hereinbefore provided, collected by 
such franchise haulers, whether on fixed sched- 
ule routes or by special trips, shall be in- 
cluded in the gross income upon which said tax is 
based. All motor vehicles licensed as contract 
hauler vehicles, and franchise hauler vehicles, 
shall have printed on the side thereof in letters 
not less than three inches in height the name and 
home address of the owner. Before issuing any 
license plates to a franchise hauler, it shall be the 
duty of the commissioner of revenue to either sat- 
isfy himself of the financial responsibility of such 
licensee or to require a bond or deposit in such 
amount as he may deem necessary to insure the 
collection of the tax imposed by this section. 

(7) Identification of Trailers. — The applica- 
tion for license for any trailer or semi-trailer shall 
show the manufacturer's serial number; and if 
such vehicle has no identifying serial number, the 
commissioner of revenue shall assign to such ve- 
hicle a distinguishing serial number, which num- 
ber shall be permanently affixed to such vehicle 
in a manner to be prescribed by rules and regula- 
tions issued by the commissioner of revenue, and 
it shall be unlawful to use the license issued for 
such vehicle upon any other vehicle. 

(8) Partial Payments. — In the purchase of 
licenses, where the gross amount of the license 
to any one owner amounts to more than four 
hundred dollars, half of such payment may be de- 
ferred until April first in any calendar year upon 
the execution to the commissioner of revenue of 
a draft upon any bank or trust company upon 
forms to be provided by the commissioner of rev- 
enue in an amount equivalent to one-half of such 
tax, plus a carrying charge of two per cent; Pro- 
vided, that any person using any tag so pur- 
chased after the first day of April in any such 
year, without having first provided for the pay- 
ment of such draft, shall be guilty of a misde- 
meanor. Any such drafts being dishonored and 
not paid shall be immediately turned over by the 
commissioner of revenue to his duly authorized 
agents and/or the state highway patrol, to the 
end that this provision may be enforced. 

(9) Overloading. — The commissioner of rev- 



[105] 



§ 2621(29)a 



MOTOR VEHICLES 



§ a621(31)a 



enue, or his authorized agent, may allow any 
owner of a motor vehicle for transportation of 
property to overload said vehicle by paying the 
fee at the rate per hundred pounds which would 
be assessed against such vehicle if its rated ca- 
pacity provided for such load; but such calcula- 
tion shall be made only in units of one thousand 
pounds or major fractions thereof, excessive 
weights of less than five hundred pounds being 
disregarded and weights of five hundred pounds 
or over being counted as one thousand. 

(10) Foreign Vehicles. — Motor vehicles en- 
gaged in the transportation of persons or prop- 
erty and duly licensed in any other state or terri- 
tory, desiring to make occasional trips into or 
through the state of North Carolina, may be per- 
mitted the same use and privileges of the high- 
ways of this state as provided for similar vehicles 
regularly licensed in this state by procuring from 
the commissioner of revenue trip licenses upon 
forms and under rules and regulations to be 
adopted by the commissioner of revenue, good 
for use for a period of thirty days, upon the pay- 
ment of a fee in compensation for said privileges 
equivalent to one-tenth of the annual fee which 
would be chargeable against said vehicle if regu- 
larly licensed in this state: Provided, however, 
that nothing in this provision shall prevent the 
extension of the privileges of the use of the 
roads of this state to vehicles of other states un- 
der the reciprocity provisions now provided by 
law; and provided further, that nothing herein 
contained shall prevent the owners of vehicles 
from other states from licensing such vehicles in 
the state of North Carolina under the same 
terms and the same fees as like vehicles are li- 
censed by owners resident in this state. (1927, 
c. 122, s. 28; 1929, c. 272, s. 7; 1931, cc. 336, 362; 
1933, c. 375, s. 1, c. 533.) 

Editor's Note.— 

Public I/aws of 1933, c. 375. repealed this section as it 
formerly read and substituted the above in lieu thereof. A 
comparison of the two sections is necessary to determine the 
changes. 

§ 2621 (29)a. License fee for semi-trailers 
towed by passenger cars. — No fee for any truck, 
or truck-tractor shall be less than fifteen dollars 
($15.00): Provided, the license fee for a semi- 
trailer weighing not more than five hundred 
pounds (500 lbs.) and carrying not more than 
one thousand pounds (1000 lbs.) load, and towed 
ty a passenger car, shall be two dollars ($2.00) 
for any part of the license year for which license 
is issued. (1933, c. 73, s. 1.) 

§ 2621(30). Exempt from registration fees. — 

The department, upon proper proof being filed 
with it that any motor vehicle for which license 
is herein required is owned by the state or any 
department thereof, or by any county, township, 
city or town, or by any board of education, 
or orphanages, shall collect one dollar for the reg- 
istration and numbering of such motor vehicles: 
Provided, that the term "owned" shall be con- 
strued to mean that such motor vehicle is the ac- 
tual property of the state or some department 
thereof, or of the county, township, city or town, 
or of the board of education, or orphanages, and 
no motor vehicle which is the property of any 
officer or employee of any department or orphan- 
ages named herein shall be construed as being 



"owned" by such department or orphanages. 
Provided, that the above exemption from regis- 
tration fees shall also apply to a church-owned 
bus used exclusively for transporting children 
and parents to Sunday school and church services 
and for no other purpose. 

The word "orphanages" shall be construed to 
mean only those institutions that are recognized 
by the state board of charities and public welfare 
as charitable child-caring institutions. (1927, c. 
122, s. 29; 1929, c. 209, s. 1; 1933, c. 221, s. 1, c. 
375, s. 1.) 

Editor's Note. — 

Public Laws 1933, c. 375, repealed this section as it for- 
merely read and substituted the above in lieu thereof. A com- 
parison of the two sections is necessary to determine the 
changes. Public Laws 1933, c. 221, amended the former sec- 
tion by inserting the words "or orphanages." 

§ 2621(31). Collection of delinquent taxes by 
duress. — Whenever any tax imposed by this act 
shall be in default for a period of ten days, it shall 
be the duty of the commissioner of revenue to 
certify the same to the sheriff of any county of 
this state in which such delinquent motor vehicle 
operator is operating, which said certificate to 
said sheriff shall have all the force and effect of 
a judgment and execution, and the said sheriff is 
hereby authorized and directed to levy upon any 
property in said county owned by the said delin- 
quent motor vehicle operator, and to sell the same 
for the payment of said tax as other property is 
sold in the state for the non-payment of taxes; 
and for such services the sheriff shall be allowed 
the fees now prescribed by law for sales under ex- 
ecution, and the cost in such cases shall be paid 
by the delinquent taxpayer or out of the proceeds 
of the said property; and upon the filing of said 
certificate with the sheriff, in the event the delin- 
quent taxpayer shall be the operator of any fran- 
chise bus carrier or franchise hauler vehicle, the 
franchise certificate issued to such operator shall 
become null and void and shall be canceled by the 
corporation commission, and it shall be unlawful 
for any such franchise bus carrier or the operator 
of any franchise hauler vehicle to continue the 
operation under said franchise. (1933, c. 375, 
s. 1.) 

Editor's Note. — 

Public Laws 1933, c. 375, repealed this section as it for- 
merly read and substituted the aibove in lieu thereof. A com- 
parison of the two sections is necessary to determine the 
changes. 

§ 2621 (31)a. Transfer of license. — Upon the 
legal transfer of the title of any vehicle licensed 
under the provisions of this act by foreclosure sale 
under chattel mortgage or retained title contract, 
the purchaser of said vehicle at such sale shall 
acquire the right to operate such vehicle for the 
remainder of the license period under the license 
plates issued for said vehicle, upon complying 
with the provisions of law with reference to the 
transfer of title; but this provision, insofar as it 
may relate to franchise bus carriers or franchise 
hauler vehicles, is subject to the regulations now 
in effect or hereafter established by the corpora- 
tion commission with respect to the regulation of 
such vehicles. Upon satisfactory proof to the 
commissioner of revenue that any motor vehicle, 
duly licensed, has been completely destroyed by 
fire or collision, the owner of such vehicle may 
be allowed on the purchase of a new license for 



[ 106 ] 



§ !J621(31)b 



MOTOR VEHICLES 



§ 2621(60) 



another vehicle a credit equivalent to the unex- 
pired proportion of the cost of the original license, 
dating from the first day of the next month after 
the date of such destruction. (1933, c. 375, s. 1.) 

§ 2621 (31)b. Quarterly payments. — Licenses is- 
sued on or after April first of each year and before 
July first shall be three-fourths of the annual fee, 
licenses issued on or after July first and before 
October first shall be one-half of the annual fee; 
and licenses issued on or after October first shall 
be one-fourth of the annual fee. (1933, c. 37.5, 
s. 1.) 

§ 2621 (31)c. Taxes compensatory. — All taxes 
levied under the provisions of this act are in- 
tended as compensatory taxes for the use and 
privileges of the public highways of this state, 
and shall be paid by the commissioner of revenue 
to the state treasurer, to be credited by him to 
the state highway fund; and no county or munici- 
pality shall levy any license or privilege tax upon 
the use of any motor vehicle licensed by the state 
of North Carolina, except that cities and towns 
may levy not more than one dollar per year upon 
any such vehicle resident therein. (1933, c. 375, 
s. 1.) 

§ 2621(31)d. No other state license taxes im- 
posed. — No additional franchise tax, license tax, 
or other fee shall be imposed by the state against 
any franchised motor vehicle carrier taxed under 
this act, nor shall any county, city or town im- 
pose a franchise tax, or other fee upon them. 
(1933, c. 375, s. 1.) 

§ 2621 (31 )e. Effect on existing law; current 
license unaffected. — This act [§§ 2621(29), 2621- 
(30), 2621(31) of this Code Supplement] is in- 
tended to take the place of and be a substitute 
for sections one hundred and sixty-five and two 
hundred and nine of the revenue act one thousand 
nine hundred and thirty-one [§§ 7880(96) and 
7880(117) of the Code of 1931]. Nothing in this 
act shall be construed to repeal or amend the act 
of 1933, c. 73, herein codified as section 262l(29)a. 
This act shall be in full force and effect from and 
after July first, one thousand nine hundred and 
thirty-three, but it shall not have the efifect of can- 
celling or annulling any motor vehicle license for 
the year one thousand nine hundred and thirty- 
three which shall have been issued and paid for 
prior to that date. (1933, c. 375, ss. 2, 3, 5.) 



(32). Driving vehicle without owner's 



§ 2621 
consent. 

An indictment changing larceny and receiving does not 
include a charge of driving a motor vehicle without the 
knowledge or consent of the owner, and a defendant charged 
in the indictment only with larceny and receiving may not 
be convicted under this section. State v. Stinnett, 203 N. 
C. 829, 167 S. E;. 63. 

Art. 8. Uniform Act Regulating Operation of 
Vehicles on Highways 

§ 2621(44). Persons under the influence of in- 
toxicating liquor or narcotic drugs. 

Death caused by a violation of this section may be 
manslaughter hut a condition precedent to conviction is 
that the violation of the law in this respect must have 
caused the wreck and the death of deceased. State v. Dills, 
204 N. C. 33, 167 S. E. 459. 

One who drives his automobile, in violation of § 2621(43) 
or this section, and runs into another car and thereby prox- 
imately causes the death of one of the occupants, is 



guilty of 
C. 69, 74, 



manslaughter at 
164 S. E. 580. 



least. State 



Stansell, 203 N. 



§ 2621(45). Reckless driving. 

As to the culpable negligence of one violating the provi- 
sions of this section, see annotations under § 2621('45). 

Violation of Traffic Ordinance. — Under this definition, the 
simple violation of a trafiic regulation, which df>es not in- 
volve actual danger to life, limb or property, while import- 
ing civil liability if damage or injury ensue, would not per- 
force constitute the criminal offense of reckless driving. 
State v. Cope, 204 N. C. 28, 31. 167 S. E- 456. 

Proximate Cause is Question for Jury. — The violation of 
this and succeeding sections enacted for the safety of those 
driving upon the highway is negligence per se, and when 
such violation is admitted or established the question of 
pro.ximate cause is ordinarily for the jury. King v. Pope, 202 
N. C. 554. 163 S. E. 447; Godfrey v. Queen City Coach Co., 

201 N. C. 264, 267, 1.59 S. E. 412, 

Sufficiency of Evidence for Jury. — Evidence that the in- 
dividual defendant drove his car in a negligent manner in 
violation of this section and §§ 2621(51), (54), (55), and (71a) 
and that such negligence proximately caused injury to the 
plaintiff is held sufficient to have been submitted to the jury. 
Puckett V. Dyer, 203 N. C. 684, 167 S. E. 43. 

§ 2621(46). Restrictions as to speed. 

This section applies to criminal actions only and not to 

civil actions for damages. Piner v. Richter, 202 N. C. 573, 
163 S. E. 561. 

Contributory Negligence at Crossing-. — Failure of a driver 
to keep his car imder such control as will enable him to ob- 
serve the restrictions imposed by this section as to grade 
crossings is contributory negligence sufficient to bar recovery 
against the rail-oad. Hinnant v. Atlantic Coast Line R. Co., 

202 N. C. 489, 163 S, E. 555, 

Proximate Cause Is for Jury. — ^Where there is evidence that 
defendant was driving his automobile on the highway at a 
speed of sixty- five miles per hour and that the injury in suit 
was proximately caused by such excessive speed, it is suffi- 
cient to be submitted to the jury on the issue of actionable 
'negligence, since such speed, being in violation of this section, 
is negligence per se, regardless of the condition of the road, 
the weather or traffic, Norfleet v. Hall, 204 N, C, 573, 169 
S. E. 143. 

§ 2621(51). Drive on right side of highway. 

Proximate Cause. — A violation of this section is negligence 
per se, but such negligence is not actionable unless there is 
a causa! relation between the breach and the injury. Grimes 
v. Carolina Coach Co., 20.i N, C, 605. 608. 166 S. E. 599. 

Question for Jury. — Evidence tending to show violations of 
this section and §§ 2616, 2621(46) is sufficient evidence that 
the defendant was driving unlawfully in several respects in 
violation of our statutes and in disregard of the safety of 
others who might then be upon the highway, and is properly 
submitted to the jury in a prosecution for manslaughter. 
State v. Durham, 201 N, C. 724, 725, 161 S. E. 398. 



§ 2621(53). Meeting of vehicles. 



Assumption that Vehicle Will Turn to Right. — When the 
driver of one of the automobiles is not observing the rule, of 
this section, as the automobiles approach each other, the 
other may assume that before the automobiles meet, the 
driver of the approaching automobile will turn to his right, 
so that the two automobiles may pass each other in safety. 
Shirley v. Ayers, 201 N. C. 51. 53, 158 S. E. 840. 

§ 2621(59). Signals on starting, stopping or 
tui'ning. 

In General. — 

One driving an automobile upon a public highway is re- 
quired by provision of this section to give specific signals be- 
fore stopping or turning thereon, and the failure of one so 
driving to give the signal required by statute is negligence, 
and when the proximate cause of injury, damages may be 
recovered therefor by the one iniured. Murphv v. Ashe- 
ville-Knoxville Coach Co., 200 N. C. 92, 93, 156 'S. E. 550. 

§ 2621(60). Right of way. 

Instruction. — Under this section where damages are sought 
for defendant's negligent driving at a street intersection and 
there is evidence tending to show that the defendant was ap- 
proaching the intersection at an unlawful rate of speed and 
did not slow up before the happening of the collision with 
another car; an instruction correctly charging the rule of 
the right of way if both cars approached the intersection 
simultaneously and the rule that if one of the cars was al- 



[107] 



§ 2621(66) 



MOTOR VEHICLES 



§ 2621(131) 



ready in the intersection it was the duty of the driver of the 
other car to slow down and permit it to pass will not be held 
for error. Finer v. Richter, 202 N. C. 573, 163 S. "£,. 561. 

§ 2621(66). Stopping on highway. 

Exception in Subsection (c) Is Question for Jury. — Where 
there is evidence tending to show that the defendant had 
parked his truck upon the hard surface of a highway in vio- 
lation of this section, resulting in injury to the plaintiff, and 
the defendant claims that under the facts it came within the 
exception, subsection (c) ; under the statute and the facts 
disclosed by the record the matter should have been sub- 
mitted to the jiu'y under proper instructions, and the grant- 
ing of defendant's motion as of non-suit was error. Smith- 
wick v. Colonial Pine Co., 300 N. C. 519, 157 S. EJ. 612. 

§ 2621(83). Trailers and towed vehicles. 

(a) No motor vehicle shall be driven upon any 
highway drawing and having attached thereto 
more than one trailer or semi-trailer. 

(b) No trailer or semi-trailer shall be oper- 
ated over the highways of the state unless such 
trailer or semi-trailer be firmly attached to the 
rear of the motor vehicle drawing same, and un- 
less so equipped that it will not snake, but will 
travel in the path of the wheels of the vehicle 
drawing such trailer or semi-trailer, which 
equipped shall at all times be kept in good con- 
dition. (1927, c. 148, s. 41; 1931, cc. 235, 322; 
1933, c. 484.) 

Editor's Note. — ^Public Laws 1933, c. 484, changed the word 
"or" to "and" in the second line of the section, and changed 
the word "and" to "or", in the third line of the section. 

Art. 11. 'Consolidation of Activities under the 
Motor Vehicle Bureau 

§ 2621(127). Motor vehicle bureau set up in de- 
partment of revenue; deputy commissioner. — The 

commissioner of revenue shall set up in the de- 
partment of revenue a motor vehicle bureau and 
appoint as administrative head of said bureau a 
deputy motor vehicle commissioner, which deputy 
motor vehicle commissioner shall at all times be 
under the authority and control of the commis- 
sioner of revenue. There shall be transferred 
and organized under the motor vehicle bureau all 
such activities as are now provided by law in the 
department of revenue for the registration and 
licensing of motor vehicles, for the collection of 
gasoline taxes, and likewise all duties and au- 
thority now conferred by law upon the depart- 
ment of agriculture with respect to the inspec- 
tion and analysis of kerosene, gasoline, and lubri- 
cating oils; and likewise all duties and authority 
now conferred by law upon the state highway 
commission with respect to the enforcement of 
the motor vehicle laws and control and direction 
of the state highway patrol; and such other ad- 
ditional duties as are hereinafter provided for. 
(1933, c. 544, s. 1.) 

§ 2621(128). Motor vehicle and inspection board 
created. — In order to more fully carry out the pur- 
poses of this act, there is hereby created a motor 
vehicle and inspection board, to be composed of 
the governor, or such person as he may designate 
to serve in his stead, the commissioner of revenue, 
and the chairman of the state highway commis- 
sion, who shall serve without additional compen- 
sation. (1933, c. 544, s. 2.) 

§ 2621(129). Minimum standards for articles 
inspected. — It shall be the duty of the motor ve- 
hicle and inspection board, after public notice and 
provision for the hearing of all interested par- 



ties within sixty days after the ratification of this 
act, to adopt minimum standards for each of the 
articles for which inspection is provided in con- 
solidated statutes, section four thousand eight 
hundred and fifty-two, and to cause such stand- 
ards to be published throughout the state and 
made available for all dealers in such products. 
After the adoption and publication of said stand- 
ards, it shall be unlawful to sell or offer or ex- 
pose for sale or exchange or to use in this state 
any of such products which fail to comply with 
the standards so adopted. The said motor ve- 
hicle and inspection board shall from time to time, 
after a public hearing, have a right to amend, 
alter, or change said standards. (1933, c. 544,. 
s. 3.) 

§ 2621(130). Adulteration of articles prohibited.. 

— It shall be unlawful for any person, firm, cor- 
poration or association who has purchased gaso- 
line or other liquid motor fuel upon which a road 
tax has been paid, or which has been designated 
gasoline of legal standard, to in any wise adul- 
terate or lower the standard of same by the addi- 
tion thereto of kerosene, or any other liquid or 
substance, and sell or offer for sale the same. 
(1933, c. 544, s. 4.) 

§ 2621(131). Board to sample articles to be in- 
spected. — For the purpose of protecting the state's 
revenues, and for the purpose of preventing 
frauds, substitutions, adulterations, and other rep- 
rehensible practices, sections four thousand eight 
hundred fifty and four thousand eight hundred 
and fifty-one of the consolidated statutes be, and 
the same are hereby so amended as to authorize 
and empower said department, or its agents, to 
examine, investigate, inspect and take samples of 
all kerosene, gasoline, benzine, naphtha, petro- 
leum solvents, distillates, gas oil, furnace or fuel 
oil, and all other volatile and inflammable liq- 
uids by whatever name known or sold and pro- 
duced, manufactured, refined, prepared, distilled, 
compounded or blended for the purpose of gen- 
erating power in motor vehicles for the propul- 
sion thereof by means of internal combustion, or 
which are sold or used for such purposes, and 
any and all substances or liquids or commodities 
which, in themselves, or by reasonable combina- 
tions with others, might be used for, or as sub- 
stitutes for, motor fuels. But, it is not the pur- 
pose of this statute to impose any inspection tax 
upon commodities except kerosene oil, gasoline, 
and other products of petroleum used as motor 
fuels, as provided in section four thousand eight 
hundred fifty-six of the consolidated statutes. 
The inspection tax shall be due and payable upon 
the total quantity of kerosene, gasoline, or other 
motor fuels sold or used as required by the laws 
imposing tax under the gasoline road tax; and 
payment of same shall be made concurrent there- 
with, unless the commissioner of revenue shall 
by rule and regulation prescribe other methods 
for the collection of such tax; and the said com- 
missioner is hereby expressly given authority to 
make and provide for the enforcement of such 
rules and regulations as the said commissioner 
may find necessary to secure the inspection of all 
gasoline and kerosene, and to collect the inspec- 
tion fee therefor. To this end the laws requiring 
transportation agencies to report to the depart- 
ment of revenue the delivery in this state of gas- 



[108] 



§ 2621(132) 



MOTOR VEHICLES 



§ 2621(140) 



oline and/or kerosene are hereby amended so as 
to authorize the said commissioner of revenue 
to require said transportation agencies to likewise 
report any of the other articles mentioned in this 
section which, in the opinion of the commissioner, 
may be necessary or useful in preventing the 
adulteration of gasoline or kerosene. (1933, c. 
544, § 5.) 

§ 2621(132). Laboratory analysis. — The com- 
missioner of revenue be authorized to provide for 
laboratory analysis of samples of the inspected 
articles by continuing said work in the depart- 
ment of agriculture as heretofore, upon such ar- 
rangements as may be mutually agreed upon be- 
tween the commissioner of revenue and the com- 
missioner of agriculture, or by transferring said 
laboratory analysis to the division of laboratory 
and tests in the department of the state highway 
commission, as he may find most advantageous 
and economical. (1933, c. 544, s. 6.) 

§ 2621(133). Analysis certificate admissible in 
evidence. — A certified copy of the official test of 
the analysis of any petroleum product made un- 
der the provisions of this article, under the seal 
of the commissioner of revenue, shall be admissi- 
ble as evidence of the fact therein stated in any 
of the courts of this state on the trial of any issue 
involving the qualities of said product. (1933, 
c. 544, s. 7.) 

§ 2621(134). Inspection duties of highway pa- 
trol. — In addition to the duties now imposed by 
law upon the state highway patrol, the deputy 
motor vehicle commissioner shall direct the mem- 
bers of the state highway patrol to perform the 
duties now imposed by law upon the inspectors as 
authorized by consolidated statutes, section four 
thousand eight hundred fifty-four, and they shall 
be invested with all the authority of such in- 
spectors. The deputy motor vehicle commissioner 
may likewise direct any employee of the motor 
vehicle bureau to collect samples of the articles 
to be inspected, and they shall, upon such desig- 
nation, have all the authority now conferred by 
law upon inspectors for this purpose. (1933, c. 
544, s. 8.) 

§ 2621(135). Samples taken of bulk shipments 
and from retail distributors.— The deputy motor 
vehicle commissioner shall cause samples to be 
taken not only of bulk shipments and in orig- 
inal packages, but likewise at the various retail 
distributing points throughout the state, to the 
end that the public may be protected in the qual- 
ity of petroleum products purchased, and that the 
mixing and blending of other products with gas- 
oline to avoid the tax thereon may be prevented. 
(1933, C. 544, s. 9.) 

§ 2621(136). Violation of act by distributors 
cause of revocation of license; power of com- 
missioner of revenue to cancel license and sur- 
render bond. — If any licensee shall at any time 
file a false report of the data or information re- 
quired by law, or shall fail or refuse or neglect to 
file any report required by law, or to pay the full 
amount of the tax as required by law, the commis- 
sioner of revenue may forthwith cancel the li- 
cense of such licensee and notify such licensee 
in writing of such cancellation by registered mail 
to the last known address of such licensee ap- 



pearing in the files of the commissioner of rev- 
enue. In the event that the license of any li- 
censee shall be cancelled by the commissioner of 
revenue as hereinbefore provided in this section, 
and in the event such licensee shall have paid to 
the state of North Carolina all the taxes due and 
payable by it under this article, together with any 
and all penalties accruing under any of the provi- 
sions of this article, then the commissioner of 
revenue shall cancel and surrender the bond there- 
tofore filed by said licensee. (1933, c. 544, s. 10.) 

§ 2621(137). Penalty for failure to report or 
to pay taxes promptly. — When any licensee shall 
fail to file reports with the commissioner of rev- 
enue, as required by this article, or shall fail to 
pay to the commissioner of revenue the amount 
of inspection tax due to the state of North Caro- 
lina w^hen the same shall be payable, a penalty of 
one hundred per cent (100%) shall be added to 
the amount of the tax due, and said penalty of one 
hundred per cent (100%) shall immediately ac- 
crue, and thereafter said tax and penalty shall 
bear interest at the rate of one per cent (1%) per 
month until the same is paid. (1933, c. 544, s. 11.) 

§ 2621(138). The commissioner of revenue may 
estimate motor fuel received. — Whenever any li- 
censee shall neglect or refuse to make and file 
any report as required by this article, or shall 
file an incorrect or fraudulent report, the com- 
missioner of revenue shall determine after an in- 
vestigation the number of gallons of kerosene oil 
and motor fuel with respect to which the licensee 
has incurred liability under the tax laws of the 
state of North Carolina, and shall fix the amount 
of the taxes and penalties payable by the licensee 
under this article accordingly. In any action or 
proceeding for the collection of the inspection 
tax for kerosene oil or motor fuel and/or any 
penalties or interest imposed in connection there- 
with, an assessment by the commissioner of rev- 
enue of the amount of tax due, and/or interest 
and/or penalties due to the state, shall consti- 
tute prima facie evidence of the claim of the state; 
and the burden of proof shall be upon the licensee 
to show that the assessment was incorrect and 
contrary to law; and the commissioner of rev- 
enue may institute action therefor in the superior 
court of Wake county, regardless of the resi- 
dence of such licensee or the place where the de- 
fault occurred. (1933, c. 544, s. 12.) 

§ 2621(139). "Licensee" defined.— The word 
"licensee" as used in this article is hereby defined 
and declared to include and embrace not only the 
person, firm or corporation to which the license 
is issued, but all its agents, servants, and em- 
ployees. (1933, c. 544, s. 13.) 

§ 2621(140). Measuring equipment to be in- 
spected. — The agents of the deputy motor ve- 
hicle commissioner shall be required to investigate 
and inspect the equipment for measuring gaso- 
line, lubricating oil, and illuminating oil, and other 
petroleum products, and make report of s.uch in- 
spection to the deputy motor vehicle commis- 
sioner. In all cases where it is found, after in- 
spection, that the measuring equipment used in 
connection with the distribution of such products 
is inaccurate, and if the owner, within five days 
after the notice of such inaccuracy, fails to cor- 



[ 109 



§ 2621(141) 



MOTOR VEHICI^ES 



§ 2621(149) 



rect the same and continues to use it, he shall 
be guilty of a misdemeanor, and the deputy motor 
vehicle commissioner is authorized to condemn 
and confiscate such equipment: Provided, that 
the owner of any such equipment, before the same 
is confiscated, shall have a right to a hearing be- 
fore the motor vehicle and inspection board here- 
inbefore provided. (1933, c. 544, s. 14.) 

§ 2621(141). Field force limited. — In addition 
to the members of the state highway patrol, the 
deputy motor vehicle commissioner shall not be 
allowed a field force of more than six men, other 
than the auditors provided in house bill number 
three hundred and eighty (380), providing for 
the auditing of the accounts of gasoline distrib- 
utors. (1933, C. 544, s. 15.) 

§ 2621(142). Vehicles for hire regulated.— The 

commissioner of revenue shall have authority and 
it shall be his duty to pass reasonable rules and 
regulations to require all operators of motor ve- 
hicles for hire to have such vehicles properly 
equipped with brakes and lights, in accordance 
with the requirements of law, and to require sat- 
isfactory evidence of liabilit\' insurance where 
same is required by law, prior to the issuance of 
annual license therefor, and to have the same in- 
spected periodically during the period of said li- 
cense; and the commissioner of revenue is au- 
thorized and directed to take all necessary steps 
to enforce such rules and regulations. (1933, c. 
544, s. 16.) 

§ 2621(143). Compensation of members of new 
department. — The salary of the deputy motor ve- 
hicle commissioner and the number and salaries 
of the various clerks and assistants assigned to 
him by the commissioner of revenue shall be fixed 
by the budget bureau, and all appropriations made 
under the several departments for the various 
activities here consolidated, or so much thereof 
as may be necessary, shall, with the approval of 
the budget bureau, be made available for carrying 
out the purposes of this article. (1933, c. 544, 
S. 17.) 

§ 2621(144). Abolishing inspection appropria- 
tion. — Item no. 20 in house bill no. 125, enacted 
at the present session of the general assembly, 
appropriating to the department of agriculture 
for gasoline and oil inspection the sum of fifteen 
thousand six hundred and sixty dollars ($15,600.00) 
for each of the fiscal years of the next ensuing 
bi-ennium, is hereby repealed. It shall be the duty 
of the department of revenue to utilize as far as 
practical its general organization, and including 
the services of the highway patrol, to carry out 
the provisions of this article and of senate bill 
no. 238, enacted at the present session of the gen- 
eral assembly, in so far as can reasonably be done 
without additional or specific appropriation for 
such service. For the necessary laboratory work 
in connection with an efficient administration of 
the inspection laws by either the laboratories of 
the department of agriculture or of the state high- 
way commission, as either of these agencies may 
be utilized under the provisions of this act, and 
for any other services necessary to be performed 
in carrying out the provisions of this article, there 
shall from time to time be allotted by the budget 
bureau from the inspection fees collected under 



authority of the inspection laws of this state such 
sums as the budget bureau may find to be nec- 
essary for the efficient administration of the in- 
spection laws. (1933, c. 544, s 18.) 

§ 2621(145). Laws amended. — All laws relating 
to the subject matter of this article are hereby 
amended to such extent as may be necessary to 
make them conform to this article, and as thus 
amended continued in full force and effect; and all 
laws or clauses of laws inconsistent with the pro- 
visions of this article, to the extent of such in- 
consistency and conflict, but no further, are hereby 
repealed. (1933, c. 544, s. 19.) 

Art. 12. Regulation of Automobile Liability 
Insurance Rates 

§ 2621(146). Approval by insurance commis- 
sioner of automobile liability insurance rates. — 

Every person, association or corporation author- 
ized to transact automobile liability and/or prop- 
erty damage and/or collision insurance business 
within this state shall file with the insurance com- 
missioner on or before their effective date, the 
classification of risks, rules, rates, and rating 
plans, for writing such insurance, approved or 
made by such insurer or by any rating organiza- 
tion of which it is a member, none of which shall 
become effective until approved by the insurance 
commissioner. The insurance commissioner shall 
within fifteen days after the filing of each classi- 
fication of risks, rules, rates and rating plans in- 
dicate in writing his approval or disapproval 
thereof with his reasons therefor. Such filing 
may be made on behalf of an insurer by the rating 
organization of which it is a member. Any bu- 
reau organized in this state for making and/or 
administering automobile rates and rating plans 
shall provide for equal representation of stock and 
non-stock insurers upon its governing and all 
other committees and shall admit to member- 
ship any insurer applving therefor. (1933, c. 283, 
s. 1.) 

§ 2621(147). Compliance with fixed rates man- 
datory. — Every person, association, or corporation 
authorized to transact the aforesaid insurance busi- 
ness within this state shall comply with the rates 
and rules affecting such rates of the rating organi- 
zation in which it has membership or whose rates it 
adopts as its standard, or with the rates and rules 
which such insurer has filed with the insurance 
commissioner. (1933, c. 283, s. 2.) 

§ 2621(148). Adjustment of unreasonable rates. 

— It shall be the duty of the insurance commis- 
sioner, after due notice and a hearing before him, 
to order an adjustment of rates on any such risks 
or classes of risks whenever it shall be found by 
him that such rates are excessive or unreasonable 
or that any insurer is discriminating unfairly be- 
tween its policyholders whose risks are of essen- 
tially the same hazard. The findings, determina- 
tions and orders of the insurance commissioner 
shall be subject to review on their merits by ap- 
peal to the superior court of Wake county. (1933, 
c. 283, s. 3.) 

§ 2621(149). Refunds by mutuals and exchanges 
unaffected. — Nothing in this article shall be con- 
strued to limit the method of determining rates, 
or plan of operation of any mutual insurance corn- 



[ 110 ] 



§ 2623 



MUNICIPAL CORPORATIONS 



§ 2696 



pany or inter-insurance exchange in this state, or 
prevent refund to all policyholders of the same 
class any portion of the annual premium not re- 
quired to defray the expense of such insurance. 
(1933, c. 283, S. 4.) 



CHAPTER 56 

MUNICIPAL CORPORATIONS 

SUBCHAPTER I. REGULATIONS INDE- 
PENDENT OF ACT OF 1917 

Art. 1. General Powers 

§ 2623. Corporate powers. — A city or town is 
authorized: 

1. To sue and be sued in its corporate name. 

2. Out of any funds on hand, and without cre- 
ating any debt, to purchase and hold real estate 
for the use of its inhabitants. 

3. To purchase and hold land, within or without 
its limits, not exceeding fifty acres (in cities or 
towns having a population of more than twenty 
thousand the number of acres shall be in the dis- 
cretion of said city), for the purpose of a cemetery, 
and to prohibit burial of persons at any other 
place in town, and to regulate the manner of bur- 
ial in such cemetery. All municipal corporations 
purchasing real property at any trustee's, mort- 
gagee's, or commissioner's sale or execution or 
tax sale shall be entitled to a conveyance there- 
for from the trustee, mortgagee or other person 
or officer conducting such sale, and deeds to such 
municipal corporations or their assigns shall have 
the same force and effect as conveyances to pri- 
vate purchasers. The provisions of this subsec- 
tion shall apply to such sales and conveyances as 
may have been heretofore made by the persons 
and officers herein mentioned. 

4. To make such contracts, and purchase and 
hold such personal property as may be necessary 
to the exercise of its powers. 

5. To make such orders for the disposition or 
use of its property as the interest of the town 
requires. 

6. To grant upon reasonable terms franchises 
for public utilities, such grants not to exceed the 
period of sixty years, unless renewed at the end of 
the period granted; also to sell or lease, upon 
such conditions and with such terms of payment 
as the city or town may prescribe, any water- 
works, lighting plants, gas or electric, or any 
other public utility which may be owned by any 
city or town: Provided, that in the event of such 
sale or lease it shall be approved by a majority of 
the qualified voters of such city or town; and also 
to make contracts, for a period not exceeding 
thirty years, for the supply of light, water or other 
public commodity. 

7. To provide for the municipal government of 
its inhabitants in the manner required by law. 

8. To levy and collect such taxes as are author- 
ized by law. 

9. To do and perform all other duties and pow- 
ers authorized by law. (Rev., s. 2916; Code, ss. 
704, 3817; 1901, c. 283; 1905, c. 526; 1907, c. 978; 
P. L. 1917, c. 223; Ex. Sess. 1921, c. 58; 1927, 
c. 14; 1933, c. 69.) 

Editor's Note.— 

Public Laws 1933, c. 69, omitted a provision that the sec- 
tion should not apply to Cumbea'land county. 

[1 



Art. 3. Elections Regulated 

§ 2649. Application of law, and exceptions. — 

All elections held in any city or town shall be 
held under the following rules and regulations, 
except in the cities of Charlotte, Fayetteville and 
Greensboro, and in the towns in the counties of 
Bertie, Cabarrus, Caldwell, Catawba, Chowan, 
Davidson, Edgecombe, Gaston, Lenoir, Mitchell, 
Nash, Pitt, Robeson, Stokes, Surry, Vance, 
Wayne and Wilson. (Rev., s. 2944; 1901, c. 750, 
ss. 1, 21; 1903, cc. 184, 218, 626, 769, 777; 1907, 
c. 105; Ex. Sess. 1908, c. 63; 1909, c. 365; 1931, 
c. 369; 1933, c. 102.) 

Editor's Note. — 

Public Laws 1933, c. 102, omitted the town of Shelby, from 
the list of excepted places. 

Art. 8. Public Libraries 

§ 2694. Libraries established upon petition and 
popular vote. — The governing body of any incor- 
porated city or county, upon the petition of ten 
per cent of the registered voters thereof, shall 
submit the question of the establishment and/or 
support of a free public library to the voters at 
the next municipal election, the next general elec- 
tion, or at a special election. If a majority of the 
qualified votes cast on said question be in the af- 
firmative, the board of aldermen or town commis- 
sioners or board of county commissioners shall 
establish the library or reading room and levy 
and cause to be collected as other general taxes 
are collected a special tax of not more than ten 
cents or not less than three cents on the hundred 
dollars of the assessed value of the taxable prop- 
erty of such city, town or county. The fund so de- 
rived shall constitute the library fund, and shall be 
kept separate from the other funds of the city, town 
or county to be expended exclusively upon such li- 
brary. In lieu of establishing a library by vote 
of the people as above provided, the governing 
body of any city, town or county may establish 
such a library upon petition as above provided 
and maintain the same by a special tax not less 
than that provided in this section. When such 
library has been established by either method as 
above provided, it may be abolished only by 
a vote of the people. (1911, c. 83, s. 1; 1927, c. 
31, s. 91; 1933, c. 365, s. 1.) 

Editor's Note. — 

Public Laws 1933, c. 365, repealed the former section and 
enacted the above in lieu thereof. 

§ 2696. Powers and duties of trustees. — Im- 
mediately after appointment, such board of trus- 
tees shall organize by election one of its members 
as president and one as secretary-treasurer, and 
such other officers as it may deem necessary. 
The secretary-treasurer before entering upon his 
duties shall give bond to the municipality in an 
amount fixed by the board of trustees, condi- 
tioned for the faithful discharge of his official 
duties. The board shall adopt such by-laws, 
rules and regulations for its own guidance and 
for the government of the library as may be ex- 
pedient and conformable to law. It shall have 
exclusive control of the expenditure of all moneys 
collected for or placed to the credit of the library 
fund, and of the supervision, care, and custody of 
the rooms or buildings constructed, leased, or 
set apart for library purposes. But all money 
received for such library shall be paid into the 

11] 



§ 2696(a) 



MUNICIPAL CORPORATIONS 



§ 2707 



city treasury or county treasury, be credited 
to the library fund, be kept separate from other 
moneys, and be paid out to the secretary-treas- 
urer upon the authenticated requisition of the 
board of trustees through its proper officers. 
With the consent of the governing body of the 
city or town or county, it may lease and occupy, 
or purchase, or erect upon ground secured 
through gift or purchase, an appropriate building: 
Provided, that of the income for any one year 
not more than one-half may be employed for the 
purpose of making such lease or purchase or for 
erecting such building. It may appoint a libra- 
rian, assistants, and other employees, and pre- 
scribe rules for their conduct, and fix their com- 
pensation, and shall also have pov^rer to remove 
such appointees: Provided, that after the rati- 
fication of this section no vacancies existing or 
occurring in the position of head librarian in such 
libraries shall be filled by appointment or desig- 
nation of any person who is not in possession of 
a library certificate issued under the authority of 
this article. It may also extend the privileges and 
use of such library to nonresidents upon such 
terms and conditions as it may prescribe. (1911, 
c. 83, S. 3; 1937, c. 31, s. 3; 1933, c. 365, s. 2.) 

Editor's Note. — Public I^aws 1933, c. 365, inserted the pro- 
viso in the next to the last sentence of this section. 

§ 2686(a). Library certification board. — That 
the secretary of the North Carolina library com- 
mission, the librarian of the University of North 
Carolina, the president of the North Carolina li- 
brary association and one librarian appointed by 
the executive board of the North Carolina library 
association shall constitute a library certification 
board who shall serve without pay and who shall 
issue librarian's certificates under reasonable rules 
and regulations to be promulgated by the board 
and a complete record of the transactions of said 
board shall be kept at all times. (1933, c. 365, 
s. 3.) 

§ 2696(b). Librarians now acting — temporary 
certificates. — That the provisions of this article 
shall not be construed to affect any librarian at 
this time in his or her position. Such librarians 
as are now acting shall be entitled to receive a 
certificate in accordance with positions now held. 
Upon the submission of satisfactory evidence 
that no qualified librarian is available for appoint- 
ment, a temporary certificate, valid for one year, 
may be issued upon written application of the 
library board. Such certificate shall not be re- 
newed or extended and shall not be valid beyond 
the date for which it is issued. (1933, c. 365, s. 3.) 

§ 2697. Annual report of trustees. — The board 
of trustees shall make an annual report to the gov- 
erning body of the city, town or county, stating 
the condition of their trust, the various sums of 
money received from the library fund and all 
other sources, and how much money has been ex- 
pended; the number of books and periodicals on 
hand, the number added during the year, the num- 
ber lost or missing, the number of books loaned 
out, and the general character of such books, the 
number of registered users of such library, with 
such other statistics, information and suggestions 
as it may deem of general interest. (1911, c. 83, s. 
7; 1927, c. 31, s. 4; 1933, c. 365, s. 4.) 
Editor's Note. — The above section was substituted for the 

[112] 



former reading- by Public Laws 1933, c. 363. A comparison 
of the two sections is necessary to determine the changes. 

§ 2699. Title to property vested in the city, 
town or county. — All property given, granted, or 
conveyed, donated, devised or bequeathed to, or 
otherwise acquired by any city, town or county for 
a library shall vest in and be held in the name of 
such city, town or county and any conveyance, 
grant, donation, devise, bequest or gift to or in 
the name of any public library board shall be 
deemed to have been made directly to such city, 
town or county. (1911, c. 83, s. 4; 1917, c. 31, s. 
6; 1933, c. 365, s. 5.) 

Editor's Note.— The above section was substituted for the 
former reading by Public Laws 1933, c. 365. A comparison 
of the two sections is necessary to determine the changes. 

§ 2702. Contract with existing libraries.— The 

governing body of any city, town or county, when 
deemed best for the interest of the city, town or 
county, may in lieu of supporting and maintain- 
ing a public library, enter into a contract with 
and make annual appropriations of money to such 
library, associations or corporations as shall main- 
tain a library or libraries, whose books shall be 
available without charge to the residents of such 
city, town or county, under such rules and regula- 
tions of said library, associations or corporations, 
as shall be approved by the governing body of 
such city, town or county. All money paid to 
such society or corporation under such contract 
shall be expended solely for the maintenance of 
such library, and for no other purpose. For the 
governing body of such library when contract has 
been made between city and county, the trus- 
tees shall be appointed proportionately to the 
funds provided for its support. 

Nothing in this section shall be construed to 
abolish or abridge any power or duty conferred 
upon any public library established by virtue of 
any city or town charter or other special act, or to 
affect any existing local laws allowing or provid- 
ing municipal aid to libraries. (1911, c. 83, ss. 9, 
10; 1917, c. 215; 1927, c. 31, s. 8; 1933, c. 365, s. 6.) 
Editor's Note. — The above section was substituted for the 
former reading by Public Laws 1933, c. 365. A comparison of 
the two sections is necessary to determine the changes. 

§ 2702(b). Combined counties.— Where found 
to be more practicable, two or more adjacent 
counties may join for the purpose of establishing 
and maintaining a free public library under the 
terms and provisions herein above set forth for 
the establishment and maintenance of a free 
county library. In such cases the combined coun- 
ties shall have the same powers and be subject to 
the same liabilities as a single county under the 
provisions of this article. The board of county 
commissioners of the counties which have com- 
bined for the establishment and maintenance of a 
free library shall operate jointly in the same man- 
ner as herein provided for the commissioners of 
a single county. Should any county at any time 
desire to withdraw from such combination, the 
said county shall be entitled to such proportion 
of the property as may have been agreed upon in 
the terms of combination at the time such joint 
action was taken. (1933, c. 365, s. 7.) 

Art. 9. Local Improvements 
§ 2707. What petition shall contain. 

Petition Necessary. — Under this section an assessment for 



§ 2710 



MUNICIPAL CORPORATIONS 



§ a806(i) 



widening a street under contract with the Highway Com- 
mission without petition of a majority of the owners is in- 
valid. Scchriest v. Thomasville, 202 N. C. 108, 162 S. E. 212. 

§ 2710. Assessments levied. 

In General. — The clear interpretation of this section means 
what its language says — that one-half of the total cost of 
the street improvements shall be assessed upon the parcel of 
land abutting directly on the improvement, according to the 
extent of the respective frontage thereon. Carpenter v. Mai- 
den, 204 N. C. 114, 116, 167 S. E. 490. 

§ 2713. Hearing and confirmation; assessment 
lien. 

statute of Limitations. — The assessment against abutting 
lands for street improvements is made a lien on the land su- 
perior to all other liens and encumbrances under this sec- 
tion, and the ten-year statute of limitation is applicable 
thereto and not the three-year statute. High Point v. Clin- 
ard, 204 N. C. 149, 167 S. E. 690. 

§ 2717(b). Extension of time for payment of 
assessments. — At any time or times prior to July 
first, one thousand nine hundred and thirty-five, 
the governing body of any city or town may adopt 
a resolution granting an extension of time for the 
payment of any installment and accrued interest 
thereon of any special assessment for local im- 
provements due prior to July first, one thousand 
nine hundred thirty-two, so that the first of such 
installments so extended may be payable not later 
than one year from the date when the final install- 
ment of the original special assessment becomes 
due, and the last of such installments so extended 
shall become due not later than ten years from 
the first of such installments, and so that each 
other installment so extended may be payable an- 
nually thereafter in serial order: Provided, how- 
ever, no such extension shall in any way discrimi- 
nate in favor of or against any property assessed 
by virtue of the same assessment roll: Provided, 
further, that such extensions shall not prevent the 
payment of any assessment or interest at any 
time: Provided, further, that special assessments 
extended in accordance with the provisions of this 
article shall bear interest at the rate of six per 
centum per annum from the due date of the last 
installment of the original assessment or any ex- 
tension thereof heretofore legally made. (1931, c. 
249; 1933, c. 410, s. 1.) 

Editor's Note. — The above section was substituted for the 
former reading by Public Laws 1933, c. 365. A comparison of 
the two sections is necessary to determine the changes. 

Art. 11. Regulation of Buildings 
§ 2751. Thickness of walls. 

Public Laws 1933, c. 254, provides for the construction of 
parapet walls but applies in Durham county only. 

§ 2768. Fees of inspector. 

For an act providing that no fees shall ibe charged in Lenoir 
county if the amount involved is less than one hundred dol- 
lars, see Public Laws 1933, c. 294. 

Art. lie. Zoning Regulations 

§ 2776(s). Districts. — For any or all said pur- 
poses it may divide the municipality into districts 
of such number, shape and area as may be 
deemed best suited to carry out the purposes of 
this article; and within such districts it may regu- 
late and restrict the erection, construction, recon- 
struction, alteration, repair or use of buildings, 
structures or land. All such regulations shall be 
uniform for each class or kind of building through- 
out each district, but the regulations in one dis- 
trict may differ from those in other districts. 
N. C. Supp.— 8 [ 1 



Provided, however, that when at any intersection 
of streets in the corporate limits of any city or 
town the said legislative body of the said city 
or town promulgates any certain regulations and/ 
or restrictions for the erection, construction, re- 
construction, alteration, repair or use of build- 
ings, structures or land on two or more of said 
corners at said intersection, it shall be the duty 
of such legislative body upon written application 
from the owner of the other corners of said inter- 
section to redistrict, restrict and regulate the re- 
maining said corners of said intersecting streets 
in the same manner as is prescribed for the erec- 
tion, construction, reconstruction, alteration, re- 
pair or use of buildings, structure or land of the 
other said corners for a distance not to exceed 
one hundred and fifty feet from the property line 
of said intersecting additional corners: Provided, 
further, that the provisions of this act shall not 
apply to the cities, towns or municipalities in the 
following counties: Rowan, Durham, Rocking- 
ham, Perquimans, Guilford, Cleveland, Wayne and 
Forsyth. (1923, c. 250, s. 2; 1931, c. 176, s. 1; 
1933, c. 7.) 

Editor's Note.— 

Public Laws 1933, c. 7, added "Forsyth" to the list of 
coimties in which the section does not apply. For an act re- 
lating to zoning for filling stations and garages in Elizabeth 
city and Pasquotank county, see Public Laws 1933, c. 263. 

SUBCHAPTER II. MUNICIPAL CORPORA- 
TION ACT OF 1917 

Art. 13. Organization under Act 
§ 3780. Number of persons and area included. 

An act of the legislature expressly validating and confirm- 
ing a municipality as established cures all objections imder 
this section. Starmount Co. v. Ohio Sav. Bank, etc., Co., 
55 F. (2d) 649. 

Art. 15. Powers of Municipal Corporations 

Part 5. Protection of Public Health. 

§ 2796. Establish hospitals, pesthouses, quaran- 
tine, etc. 

As to the validity of bonds issued by municipality to erect 
and maintain a hospital, see § 2937 and the note thereto. 

Part 7. Sewerage 

§ 2806(i). Authority to fix sewerage charges; 
lien thereof. — The governing body of any munici- 
pality, maintaining and operating a system of sew- 
erage, including sewerage treatment works, if any, 
is hereby authorized to charge for sewerage serv- 
ice, to determine and fix a schedule of charges to 
be made for such service, to fix the time and man- 
ner in which such sewerage service charges shall 
be due and payable and to fix a penalty for the 
non-payment of the same when due. In no cases 
shall tlje charges, rents or penalties be a lien upon 
the property served and in cases where the serv- 
ice is rendered to a tenant and the tenant removes 
from the premises, the municipality shall not 
charge against the owner thereof the service 
charges or penalties for said service: Provided, 
that this act shall not apply to the counties of 
Transylvania, Mecklenburg, and Davie: Pro- 
vided, however, that for sewerage service sup- 
plied outside of the corporate limits of the city, 
the governing body, board or body having such 
sewerage system in charge may fix a different 
schedule of rates from that fixed for such service 
13] 



§ 2808 



MUNICIPAL CORPORATIONS 



§ 2868 



rendered within the corporate limits, with the same 
exemption from liability by city or town as is con- 
tained in section two thousand eight hundred and 
seven. (1933, c. 323, s. 1.) 

Part. 8. Water and Lights 

§ 2808. Fix and enforce rates. — The governing 
body, or such board or body which has the man- 
agement and control of the waterworks system in 
charge, may fix such uniform rents or rates for 
water or water service as will provide for the pay- 
ment of the annual interest on existing bonded 
debt for such waterworks system, for the payment 
of the annual installment necessary to be raised 
for the amortization of the debt, and the necessary 
allowance for repairs, maintenance, and operation, 
and when the city shall own and maintain both 
waterworks and sewerage systems, including sew- 
erage disposal plants, if any, the governing body 
shall have the right to operate such system as a 
combined and consolidated system, and when so 
operated to include in the rates adopted for the 
waterworks a sufficient amount to provide for the 
payment of the annual interest on the existing 
bonded debt for such sewerage system or systems, 
for the payment of the annual installment neces- 
sary to be raised for the amortization of such debt, 
and the necessary allowance for repairs, mainte- 
nance and operation. Such body shall fix the 
times when the water rents shall become due and 
payable, and in case such rent is not paid within 
ten days after it becomes due and payable, the 
same may at any time thereafter be collected ei- 
ther by suit in the name of the city or by the col- 
lector of taxes for the city. Upon the failure of 
the owner of property for which water is furnished 
under the rules and regulations of such body to 
pay the water rents when due, then the body, or 
its agents or employees, may cut off the water from 
such property; and when so cut off it shall be un- 
lawful for any person, firm, or corporation, other 
than the body or its agents or employees, to turn 
on the water to such property, or to use the same 
in connection with the property, without first hav- 
ing paid the water rent and obtained permission 
to turn on the water: Provided, however, that for 
service supplied outside the corporate limits of the 
city, the governing body, board or body having 
such waterworks or lighting system in charge, may 
fix a different rate from that charged within the 
corporate limits, with the same exemption from 
liability by city or town as is contained in section 
two thousand eight hundred seven: Provided fur- 
ther, that where the water may be cut off under the 
provision of this section for the failure of the oc- 
cupant of the premises to pay his water bill, and 
such occupant is not the owner of the premises 
but occupies said premises as a tenant, it sh'all not 
be lawful for the board in charge or management 
of the waterworks to require the payment of such 
delinquent bill before turning on the water at the 
instance of a new and different tenant or occupant 
of said premises. This proviso shall not apply in 
cases where the premises are occupied by two or 
more tenants serviced by the same water meter. 
Nor shall this proviso' apply in Caldwell county. 
(1917, c. 136, sub-ch. 11, s. 3; 1929, c. 285, s. 2; 1933, 
cc. 140, 353, 368.) 



Editor's Note.— 

Prior to the amendment 



by Public Laws 1933, c. 



first sentence of this section merely provided that the gov- 
erning board should fix "such uniform rates for water as is 
deemed best." Public Laws of 1933, c. 140 added the last 
proviso of the section. By the terms of the act the 
amendment of 1933, c. 353, does not apply in Haywood, Ashe, 
Transylvania and Mecklenburg counties. 

Part 10. Municipal Taxes 
§ 2815. Lien of taxes. 

When Lien Attaches. — 

There is no lien upon the personal property for taxes except 
from the date of levy thereon. Reichland Shale Products Co. 
V. Southern Steel, etc., Co., 200 N. C. 226, 156 S. L. 777. 

Art. 18. Adoption of City Charters 

Part. 2. Manner of Adoption 

§ 2847. Petition filed. — A petition addressed to 
the board of elections of the county in which the 
city is situated, in the form and signed and certi- 
fied as provided in the next section, may be filed 
with the county board of elections. The petition 
shall be signed by qualified voters of the city to a 
number equal to at least twenty-five per cent of 
the qualified voters at the last election next pre- 
ceding the filing of the petition. In cities having 
a population of eighty thousand (80,000), as shown 
by the last census, in which it is proposed to adopt 
plan "B," the petition shall be signed by ten per 
cent of the qualified voters of said city. (1917, c. 
136, sub-ch. 16, s. 6; 1933, c. 80, s. 5.) 

Editor's Note.— Public Laws of 1933, c. 80, added the last 
sentence relating to cities having a population of 80,000. 



Art. 19. 



Part 2. 



Different Forms of Municipal Govern- 
ment 



Plan "B". Mayor and Council Elected 
by Districts and at Large 

§ 2868. City council, election and term of office. 

— ^The legislative powers of the city shall be vested 
in a city council. One of its members shall be 
elected biennially as its mayor pro tem. In cities 
over eighty thousand (80,000) population, as 
shown by the last census, the city council or al- 
dermen shall consist of twelve members, one shall 
be elected from each ward by and from the quali- 
fied voters of that ward. That on or before March 
1, 1933, the governing body of each city of over 
eighty thousand (80,000) inhabitants shall, and it 
is made mandatory on them to divide the said 
city into twelve wards as nearly equal as possible 
as to population. In cities having more than seven 
wards the city council shall be composed of twelve 
members, of whom one shall be elected from each 
ward by and from the qualified voters of that 
ward, and the remaining members shall be elected 
by and from the qualified voters of the city. In 
cities having seven wards or less, the city council 
shall be composed of eleven members, of whom 
one shall be elected from each ward by and from 
the qualified voters of that ward, and the remain- 
ing members shall be elected by and from the 
qualified voters of the city. At the first election 
held in a city after its adoption of Plan B, the 
councilors elected from each ward shall be elected 
to serve for two years from Wednesday after first 
Monday in May following their election and un- 
til their successors are elected and qualified; and 
at each biennial city election thereafter the coun- 
cilors elected to fill vacancies caused by the ex- 
353, the piration of the terms of councilors shall be elected 

[114] 



§ 2871 



MUNICIPAL COREORATIONS 



§ 2933 



to serve for two years. (1917, c. 13G, sub-ch. 16, 
Part III, Plan B, s. 4; 1933, c. 80, s. 1.) 

Editor's Note.— Public Laws 1933, c. 80, added the third and 
fourth sentences relating to cities of over 80,000. 

§ 2871. Salaries of mayor and council. — The 

mayor shall receive for his services such salary as 
the city council shall by ordinance determine: Pro- 
vided, however, that the salary of the mayor shall 
be within the following limits: In cities of five 
thousand inhabitants and under, not less than 
three hundred dollars nor more than one thou- 
sand dollars. In cities of five thousand to ten 
thousand inhabitants, not less than five hundred 
nor more thaia fifteen hundred dollars. In cities 
of ten thousand tO' twenty-five thousand inhabi- 
tants, not less than one thousand nor more 
than three< thousand dollars. In cities of 
over twenty-five thousand inhabitants, not less 
than two thousand nor more than five thou- 
sand dollars, and it shall be mandatory that 
the mayor shall give his entire time and at- 
tention to the affairs of the city. The number of 
inhabitants shall be determined by the last United 
States government census or estimate. The may- 
or shall receive no other compensation from the 
city, and his salary shall not be increased or di- 
minished during the term for which he is elected: 
Provided, however, that the council first elected 
under this plan shall fix by ordinance the salary 
within the above limits of the mayor first elected 
hereunder, and shall six months prior to the time 
of the expiration of its term fix by ordinance the 
salary, within the above limits, of the mayor who 
shall succeed the first mayor under this plan, and 
each council shall thereafter fix by ordinance the 
salary of the succeeding mayors; but such ordi- 
nance shall not be binding as to succeeding may- 
ors in case another plan shall be adopted during 
the term of office of such council. The council 
may by two-thirds vote of all its members, taken 
by call of the "yeas" and "nays," establish a sal- 
ary for its members not exceeding one hundred 
dollars each per year. Such salary may be reduced, 
but no increase therein shall be made to take ef- 
fect during the year in which the increase is voted. 
(1917, c. 136, sub-ch. 16, Part III, Plan B, s. 7; 
1933, c. 80, s. 2.) 

Editor's Note. — Public Laws 1933, c. 80, increased the sal- 
aries in cities of over 25,000 inhabitants from $3,500 to $5,000, 
and made it mandatory that the mayor should devote his en- 
tire time to city afTairs. 

§ 2871(a). Supervisory power of mayor. — All 

heads of departments after their election by the 
city council or aldermen, as provided for by sec- 
tion 2869 of the consolidated statutes, shall be 
under the direction, control and supervision of 
the mayor during their tenure of office and until dis- 
charged by law. (1933, c. 80, s. 3.) 

§ 2871(b). Approval of contracts. — No contract 
or obligation of whatever nature shall be binding 
upon the city until first approved by the majority 
of the city council or aldermen, and approved and 
counter-signed by the mayor. (1933, c. 80, s. 4.) 

SUBCHAPTER III. MUNICIPAL. FINANCE 
ACT 

Art. 23. General Provisions 

§ 2919. Meaning of terms. — In this law, unless 
the context otherwise requires the expressions: 

[1 



"Bond ordinance" means an ordinance author- 
izing the issuance of bonds of a municipality; 

"Clerk" means the person occupying the posi- 
tion of clerk or secretary of a municipality; 

"Financial officer" means the chief financial of- 
ficer of a municipality; 

"Funding bonds" means bonds issued to pay or 
extend the time of payment of debts not evi- 
denced b}' bonds. 

"Governing body" means the board or body in 
which the general legislative powers of a munici- 
pality are vested; 

"Local improvement" means any improvements 
or property the cost of which has been or is to be 
specially assessed in whole or in part; 

"Municipality" means and includes any city, 
town, or incorporated village in this state, now or 
hereafter incorporated; 

"Necessary expenses" means the necessary ex- 
penses referred to in section seven of article seven 
of the constitution of North Carolina; 

"Publication" includes posting in cases where 
posting is authorized by this act as a substitute 
for publication in a newspaper; 

"Refunding bonds" means bonds issued to pay 
or extend the time of payment of debts evi- 
denced by bonds. 

"Special assessments" means special assessments 
for local improvements, levied on abutting prop- 
erty or other property specially benefited, or on 
street railroad companies or other companies or 
individuals having tracks in streets or highways, 
and "specially assessed" has a corresponding 
meaning. (1917, c. 138, s. 2; 1919, c. 178, s. 3(2); 
1919, c. 285, s. 1; Ex. Sess. 1921, c. 106, s. 1; 
1931, c. 60, s. 46; 1933, c. 259, s. 1.) 

Editor's Note. — 

Prior to Public Laws 1933, c. 259, this section, in the defini- 
tion of "funding- bonds" and "refunding bonds" limited such 
bonds to those issued for the payment of debts "incurred 
before July first, one thousand nine hundred and thirty- 
one." The quoted clause was deleted by the amendment. 

Art. 25. Temporary Loans 

§ 2933. Money borrowed to pay judgments or 
interest. — For the purpose of paying a judgment 
recovered against a municipality, or paying the 
principal or interest of bonds due or to become 
due within two months and not otherwise ade- 
quately provided for, a municipality may borrow 
money in anticipation of the receipt of either the 
revenues of the fiscal year in which the money is 
borrowed or the revenues of the next succeeding 
fiscal year. Such loans shall be paid not later than 
the end of such next succeeding fiscal year. In 
the event, however, that a judgment or judgments 
against a municipality amount to more than one 
cent per hundred dollars of the assessed valuation 
of taxable property of the municipality for the 
year in which taxes were last levied before the re- 
covery of the judgment, a loan to pay the judg- 
ment may be made payable in not more than five 
substantially equal annual installments, beginning 
within one year after the loan is made. For the 
purpose of pa3'ing or renewing notes evidencing 
indebtedness incurred before July first, one thou- 
sand nine hundred thirty-three, and authorized by 
this act, as amended, to be funded, any municipal- 
ity may issue new notes from time to time until 
such indebtedness is paid out of revenues or 
funded into bonds. Such new notes may be made 
15] 



§ 2937 



MUNICIPAL CORPORATIONS 



§ 2938 



payable at any time or times not later than five 
j'ears after the first day of July, one thousand nine 
hundred thirty-three, notwithstanding anything to 
the contrary in this section. (1919, c. 178, s. 3 
(12); Ex. Sess. 1921, c. 106, s. 1; 1931, c. 60, s. 64; 
1933, c. 259.) 

Ector's Note. — 

Public Laws 1933, c. 259, changed the time mentioned in 
this section from January 1, 1931, to July 1, 1933. 

Art. 26. Permanent Financing. 

§ 2937. For what purpose bonds may be issued. 

— A municipality may issue its negotiable bonds 
for any one or more of the following purposes: 

1. For any purpose or purposes for which it may 
raise or appropriate money, except for current ex- 
penses. 

2. To fund or refund a debt of the municipality 
if such debt be payable at the time of the passage 
of the ordinance authorizing bonds to fund or re- 
fund such debt or be payable within one year 
thereafter, or if such debt, although payable more 
than one year thereafter, is to be cancelled prior to 
its maturity and simultaneously with the issuance 
of the bonds to fund or refund such debt. The 
word "debt" as used in this subsection two in- 
cludes all valid or enforceable debts of a munici- 
pality, whether issued for current expense or for 
any purpose. It includes debts evidenced by 
bonds, bond anticipation notes, revenue anticipa- 
tion notes, judgments and unpaid interest on said 
debts accrued to the date of the bonds issued. 
Bond anticipation notes evidencing debts incurred 
l)efore July first, one thousand nine hundred thirty- 
three, may, at the option of the governing body, 
be retired either by means of funding bonds is- 
sued under this section or by means of bonds in 
anticipation of the sale of which the notes were 
issued. It also includes debts assumed by a mu- 
nicipality as well as debts created by a munici- 
pality. (1917, c. 138, s. 16; 1919, c. 178, s. 3 (16); 
Ex. Sess. 1921, c. 106, s. 1; 1931, c. 60, s. 48; 1933, 
c. 259, s. 1.) 

Editor's Note. — 

Public Laws 1933, c. 259, omitted the hmitation that the 
debt must have been incurred before July 1, 1931, and in- 
serted the last two sentences of the section. 

Refunding Bond. — Under the provisions of this and the 
followiniT section an ordinance authorizing the issuance of 
refunding bonds need not be submitted to the voters. Bo- 
lich v. Winston-Salem, 202 N. C. 786, 164 S. E. 361. 

Issuance of Bonds Pursuant to Section Not Enjoined. — 
The authority to issue valid bonds for the erection and 
maintenance of a public hospital with the approval of its 
voters is conferred on a municipality by this section and § 
2796, and where the other statutes relevant have been duly fol- 
lowed, the bonds so issued are a valid obligation of the town 
issuing (hem, and their issuance will not be enjoined by the 
courts. Burleson v. Spruce Pine Board of Aldermen, 200 N. 
C. 30, 156 S. E. 241. 

§ 2938. Ordinance for bond issue: 

1. Ordinance Required. — All bonds of a mu- 
nicipality shall be authorized by an ordinance 
passed by the governing body. 

2. What Ordinance Must Show. — The ordinance 
shall state: 

a. In brief and general terms the purpose for 
which the bonds are to be issued, including, in case 
of funding or refunding bonds a brief description 
of the indebtedness to be funded or refunded suf- 
ficient to identify such indebtedness. 

b. The maximum aggregate principal amount of 
the l)onds; 

[11 



c. That a tax sufficient to pay the principal and 
interest of the bonds shall be annually levied and 
collected; Provided, in lieu of the foregoing and 
in the case of funding or refunding bonds, such 
statement with respect to an annual tax may, in the 
discretion of the governing body, be altered or 
omitted; 

d. That a statement of the debt of the munici- 
pality has been filed with the clerk and is open to 
public inspection. 

e. One of the following provisions: 

(1) If the bonds are funding or refunding bonds 
or for local improvements of which at least one- 
fourth of the cost, exclusive of the cost of paving 
at street intersections, has been or is to be specially 
assessed, that the ordinance shall take effect upon 
its passage, and shall not be submitted to the vot- 
ers; or 

(2) If the bonds are for a purpose other than 
the payment of necessary expenses, or if the gov- 
erning body, although not required to obtain the 
assent of the voters before issuing the bonds, 
deems it advisable to obtain such assent, that the 
ordinance shall take effect when approved by the 
voters of the municipality at an election as pro- 
vided in this law; or 

(3) In any other case, that the ordinance shall 
take effect thirty days after its first publication 
(or posting) unless in the meantime a petition 
for its submission to the voters is filed under 
this law, and that in such event it shall take effect 
when approved by the voters of the municipality 
at an election as provided in this law. 

3. When the Ordinance Takes Effect. — ■ A bond 
ordinance shall take effect at the time and upon 
the conditions indicated therein. If the ordinance 
provides that it shall take eft'ect upon its passage 
no vote of the people shall be necessary for the 
issuance of the bonds. 

4. Need not Specify Location of Improvement. 
— In stating the purpose of a bond issue, a bond 
ordinance need not specify the location of any im- 
provement or property, or the kind of pavement 
or other material to be used in the construction or 
reconstruction of streets, highways, sidewalks, 
curbs, or gutters, or the kind of construction or 
reconstruction to be adopted for any building, for 
which the bonds are to be issued. A description 
in a bond ordinance of a property or improvement 
substantially is the language employed in sections 
two thousand nine hundred and forty-two of this 
subchapter to describe such a property or improve- 
ment, shall be a sufficiently definite statement of 
the purpose for which the bonds authorized by the 
ordinance are to be issued. 

5. Application of Other Laws. — ^No restriction, 
limitation or provision contained in any special, 
private or public-local law relating to the issuance 
of bonds, notes or other obligations of a munici- 
pality shall apply to bonds or notes issued under 
this act for the purpose of refunding, funding or 
renewing indebtedness, and no vote of the 
people shall be required for the issuance of 
bonds or notes for said purpose, unless required by 
the constitution of this state. (1917, c. 138, s. 17; 
1919, c. 178, s. 3 (17); 1919, c. 285, s. 2; Ex. Sess. 
1921, c. 106, s. 1; 1931, c. 60, s. 49; 1933, c. 259, s. 1.) 

Editor's Note. — 

Public Laws of 1933, c. 259, added to subdivision 2, a, the 
requirement for a brief description of indebtedness for fund- 
ing or refunding bonds. It also added the proviso to 2, c, 

01 



§ 2939 



MUNICIPAL CORPORATIONS 



§ 2942 



relating to funding and refunding bonds. And it omitted 
the limitation formerly occurring in subdivision 5, that the 
indebtedness must have been incurred before July 1, 1931. 

§ 2939. Ordinance not to include unrelated pur- 
poses. — Bonds for two or more unrelated purposes, 
not of the same general class or character, shall 
not be authorized by the same ordinance: Pro- 
vided, however, that bonds for two or more im- 
provements or properties mentioned together in 
any one clause of subsection four of section two 
thousand nine hundred and forty-two of this sub- 
chapter may be treated as being but for one pur- 
pose, and may be authorized by the same bond 
ordinance. After two or more bond ordinances 
have been passed, the governing body may, in its 
discretion, direct all or any of the bonds author- 
ized by the ordinances to be actually issued as 
one consolidated bond issue. Separate issues of 
funding and/or refunding bonds may be made un- 
der authority of the same bond ordinance for the 
retirement of two or more different debts or 
classes of debts. (1919, c. 178, s. 3 (17); 1919, c. 
285, s. 3; Ex. Sess. 1921, C. 106, s. 1; 1933, c. 259, 
s. 1.) 

Editor's Note. — 

Public Laws 1933, c. 259, added the last sentence to this 
section. 

§ 2942. Determining periods for bonds to run: 

1. How Periods Estimated. — Either in the bond 
ordinance or in a resolution passed after the bond 
ordinance but before any bonds are issued there- 
under, the governing body shall, within the limits 
prescribed by subsection four of this section, de- 
termine and declare: 

a. The probable period of usefulness of the im- 
provements or properties for which the bonds are 
to be issued; or 

b. If the bonds are to be funding or refunding 
bonds, either the shortest period in which the debt 
to be funded or refunded can be finally paid with- 
out making it unduly burdensome upon the tax- 
payers of the municipality, or, at the option of the 
governing body, the probable unexpired period of 
usefulness of the improvement or property for 
which the debt was incurred. 

2. Average of Periods Determined. — In the case 
of a consolidated bond issue comprising bonds au- 
thorized by different ordinances for different pur- 
poses, and in the case of a bond issue authorized 
by but one ordinance for several related purposes 
in respect of which several different periods are 
determined as aforesaid, the governing body shall 
also determine the average of the different periods 
so determined, taking into consideration the 
amount of bonds to be issued on account of each 
purpose or item in respect of which a period is 
determined. 

The period required to be determined as afore- 
said shall be computed from a date not more than 
one year after the time of passage of any bond or- 
dinance authorizing the issuance of the bonds. The 
determination of any such period by the governing 
body shall be conclusive. 

3. Maturity of Bonds. — ^The bonds must mature 
within the period determined as aforesaid, or, if 
several different periods are so determined, then 
within said average period. 

4. Periods of Usefulness. — In determining, for 
the purpose of this section, the probable period of 
the usefulness of an improvement or property, the 



governing body sliall not deem said period to ex- 
ceed the following periods for the following im- 
provements and properties, respectively, viz.: 

a. Sewer systems (either sanitary or surface 
drainage), forty years. 

b. Water supply systems, or combined water and 
electric light systems, or combined water, electric 
light, and power systems, forty years. 

c. Gas systems, thirty years. 

d. Electric light and power systems, separate or 
combined, thirty years. 

e. Plants for the incineration or disposal of ashes, 
or garbage, or refuse (other than sewage), twenty 
years. 

f. Public parks (including or not including a 
playground, as a part thereof, and any buildings 
thereon at the time of acquisition thereof, or to 
be erected thereon, with the proceeds of the bonds 
issued for such public parks), fifty years. 

g. Playgrounds, fifty years. 

h. Buildings for purposes not stated in this sec- 
tion, if they are: 

(1) Of fireproof construction, that is, a building 
the walls of which are constructed of brick, stone, 
iron, or other hard, incombustible materials, and in 
which there are no wood beams or lintels, and in 
which the floors, roofs, stair halls, and public halls 
are built entirely of brick, stone, iron, or other hard, 
incombustible materials, and in which no wood- 
work or other inflammable materials are used in 
any of the petitions, floorings, or ceiling (but the 
building shall be deemed to be of fireproof con- 
struction notwithstanding that elsewhere than in 
the stair halls and entrance halls there is a wooden 
flooring on top of the fireproof floor, and that 
wooden sleepers are used, and that it contains 
wooden handrails and treads, made of hardwood, 
not less than two inches thick), forty years. 

(2) Of nonfireproof construction, that is, a build- 
ing the outer walls of which are constructed of 
brick, stone, iron, or other hard, incombustible 
materials, but which in any other respect differs 
from a fireproof building as defined in this section, 
thirty years. 

(3) Of other construction, twenty years. 

i. Bridges and culverts (including retaining 
walls and approaches), forty years, unless con- 
structed of wood, and in that case, ten years. 

j. Lands for purposes not stated in this section, 
fifty years. 

k. Constructing or reconstructing the surface of 
roads, streets, or highways, whether including or 
not including contemporaneous constructing or re- 
constructing of sidewalks, curbs, gutters, or drains, 
and whether including or not including grading, 
if such surface: 

(1) Is constructed of sand and gravel, five years; 

(2) Is of waterbound macadam or penetration 
process, ten years; 

(3) Is of bricks, blocks, sheet asphalt, bitulithic, 
or bituminous concrete, laid on a solid foundation, 
or is of concrete, twenty years. 

1. Land for roads, streets, highways, or side- 
walks, or grading, or constructing or reconstruct- 
ing culverts, or retaining walls, or surface, or sub- 
surface drains, fifty years. 

m. Constructing sidewalks, curbs, or gutters of 
brick, stone, concrete, or other material of similar 
lasting character, twenty years. 



[117] 



§ 2943 



MUNICIPAL CORPORATIONS 



§ 2943 



n. Installing fire or police alarms, telegraph or 
telephone service, or other system of communica- 
tion for municipal use, thirty years. 

o. Fire engines, fire trucks, hose carts, ambu- 
lances, patrol wagons, or any vehicles for use in 
any department of the municipality, or for the use 
of municipal officials, ten years. 

p. Land for cemeteries, or the improvement 
thereof, thirty years. 

q. Constructing sewer, water, gas, or other serv- 
ice connections, from the service main in the 
street to the curb or property line, when the 
work is done by the municipality in connection 
with any permanent improvement of or in any 
street, ten years. 

r. The elimination of any grade crossing or 
crossings and improvements incident thereto, thirty 
years. 

s. Equipment, apparatus, or furnishings not in- 
cluded in the foregoing clauses of this subsection, 
ten years. 

t. Any improvement or property not included 
in other clauses of this subsection, forty years. 

u. Land for airports or landing fields, includ- 
ing grading and drainage, forty years. 

V. Buildings and equipment and other improve- 
ments of airports or landing fields, other than 
grading and drainage, ten years. 

5. Improvements and Properties Defined. — The 
maximum periods fixed herein for the improvements 
and properties mentioned in clauses numbered 
from a to i, both inclusive, of subsection 4 of this 
section shall be applied thereto whether such im- 
provements or properties are to be acquired, con- 
structed, reconstructed, enlarged, or extended, in 
whole or in part, and whether the same are to 
include or are not to include buildings, lands, 
rights in lands, furnishings, equipment, machinery, 
or apparatus constituting a part of said improve- 
ments or properties at the time of acquisition, 
construction, or reconstruction. If the improve- 
ments of properties are to be an enlargement or 
extension of existing properties or improvements, 
the probable period of usefulness to be determined 
as aforesaid may be either that of the existing 
properties or improvements; or that of the en- 
largement or extension. Bonds for any or all im- 
provements or properties included in any one clause 
of subsection 4 above may for the purposes of this 
section be deemed by the governing body to be 
for but one improvement or property. 

6. Kind of Construction Determined. — If the 
bonds are for a building referred to in clause h of 
subsection 4 al)ove, and the bond ordinance does 
not state the kind of construction of the building, 
or if the bonds are for street improvements men- 
tioned in clause k of subsection 4 above, and the 
bond ordinance does not state the kind or kinds 
of pavement or other material to be used, then the 
kind of construction, or the kind or kinds of pave- 
ment or other material, as the case may be, shall 
be determined by resolution before any of the 
bonds are issued. 

7. Period of Payment. — In determining for the 
purpose of this section the shortest period in which 
a debt to be funded or refunded hereunder can be 
finally paid without making it unduly burdensome 
upon the tax-payers of the municipality, the gov- 
erning body shall not deem said period to be 
greater than fifty years. (1917, c. 138, s. 18; 1919, 

Lll 



c. 178, s. 3 (18); Ex. Sess. 1921, c. 106, s. 1; 1939, 
c. 170; 1931, c. 60, s. 50, €c. 188, 301; 1933, c. 
259, s. 1.) 

Editor's Note. — 

The only change effected in this section by Public I/aws 
1933, c. 259, occurs in subsection 7. The Umitation was 
formerly thirty years if the gross debt of the county was 
less than twelve per cent of the assessed valuation, and 
fifty years in other cases. The amendment makes the 
limitation fifty years in all cases. 

Maturity of Refunding Bonds. — Under this section the 
period for maturity of refunding bonds is in the discretion 
of the governing body of the city issuing them. Bolich v. 
Winston-Salem, 202 N. C. 786, 164 S. E- 361. 

§ 2943. Sworn statement of indebtedness. — 

1. What Shall Be Shown. — After the introduc- 
tion and before the final passage of a bond ordi- 
nance an officer designated by the governing body 
for that purpose shall file with the clerk showing 
the following: 

(a) The gross debt (which shall not include 
debt incurred or to be incurred in anticipation of 
the collection of taxes or in anticipation of the 
sale of bonds other than funding and refunding 
bonds), which gross debt shall be as follows: 

(1) Outstanding debt not evidenced by bonds. 

(2) Outstanding bonded debts. 

(3) Bonded debt to be incurred under ordinances 
passed or introduced. 

(b) The deductions to be made from gross debt 
in computing net debt, which deductions shall be 
as follows: 

(1) Amount of unissued funding or refunding 
bonds included in gross debt. 

(2) Amount of sinking funds or other funds held 
for the payment of any part of the gross debt 
other than debt incurred for water, gas, electric 
light, or power purposes or two or more of said 
purposes. 

(3) The amount of uncollected special assess- 
ments theretofore levied on account of local im- 
provements for which any part of the gross debt 
was or is to be incurred which will be applied 
when collected to the payment of any part of the 
gross debt. 

(4) The amount, as estimated by the engineer 
of the municipality or officer designated for that 
purpose by the governing body or by the govern- 
ing body itself, of special assessments to be levied 
on account of local improvements for which any 
part of the gross debt was or is to be incurred, 
and which, when collected, will be applied to the 
payment of any part of the gross debt. 

(5)-. The amount of bonded debt included in the 
gross debt and incurred, or to be incurred, for 
water, gas, electric light or power purposes, or 
two or more of said purposes.'^ 

(5a) The amount of existing bonded debt in- 
cluded in the gross debt, and incurred or to be 
incurred for the construction of sewerage systems 
or sewerage disposal plants where said sewerage 
system is entirely supported by sewerage service 
charges or when said systems or plants are oper- 
ated together with the waterworks as a combined 
and consolidated system and as an integral part 
thereof, and when the amount necessary to meet 
the annual interest payable on the debt, and the 
annual installment necessary for the amortization 
of the debt, and the amount necessary for repairs, 
maintenance and operation of said system or sys- 
tems is included in the rate for waterworks serv- 
ice and so collected by the municipality: Pro- 



§ 2951 



MUNICIPAL CORPORATIONS 



§ 2959 



vided, the provisions of this subsection shall not 
apply to Transylvania county nor to municipali- 
ties situate therein, nor shall it apply to cities and 
towns in Mecklenburg county. 

(6) The amount which the municipality shall be 
entitled to receive from any railroad or street- 
railway company under contract theretofore made 
for payment by such company of all or a portion 
of the cost of eliminating a grade crossing or 
crossings within the municipality which amount 
wnll be applied when received to the payment of 
any part of the gross debt; 

(7) Indebtedness for school purposes. 

(c) The net debt, being the difference between 
the gross debt and the deductions. 

(d) The assessed valuation of property as last 
fixed for municipal taxation. 

(e) The percentage that the net debt bears to 
said assessed valuation. 

/^. Limitation upon Passage of Ordinance. — The 
ordinance shall not be passed unless it appears 
from said statement that the said net debt does 
not exceed eight (8) per cent of said assessed valu- 
ation, unless the bonds to be issued under the 
ordinance are to be funding or refunding bonds, 
or are bonds for water, gas, electric light or power 
purposes, or two or more of said purposes," or 
are bonds for sanitary sewers, sewage disposal 
or sewage purification plants, the construction of 
which shall have been ordered by the state board 
of health or by a court of competent jurisdiction, 

3. Statement Filed for Inspection. — Such stafe- 
ments shall remain on file with the clerk and be 
open to public inspection. In any action or pro- 
ceeding in any court involving the validity of 
bonds, said statement shall be deemed to be true 
and to comply with the provisions of this act, 
unless it appears (in an action or proceeding com- 
menced within the time limited by § 2945 for 
the commencement thereof), first, that the repre- 
sentations contained therein could not by any rea- 
sonable method of computation be true; and sec- 
ond, that a true statement would show that the 
ordinance authorizing the bonds could not be 
passed. (1917, c. 138, s. 19; 1919, c. 178, s. 3 (19); 
1919, c. 28'5, s. 4; Ex. Sess. 1921, c. 106, s. 1; 1927, 
c. 102, s. 1; 1931, c. 60, s. 51; 1933, c. 259, s. 1; c. 
321.) 

Editor's Note.— 

Public Laws 1933, c. 259, eliminated the provision that 
the outstanding debt must have been incurred before July 
first, one thousand nine hundred and thirty-one. Public 
Laws 1933, c. 321, inserted subsection (5a). 

For an amendment applicable only in the city of Burling- 
ton, see Public Laws 1933, c. 334. 

§ 2951. Amount and nature of bonds deter- 
mined. — The aggregate amount of bonds to be 
issued under a bond ordinance, the rate or rates 
of interest they shall bear, not exceeding six per 
centum, per annum, payable semiannually or other- 
wise, and the times and place or places of payment 
of the principal and interest of the bonds, shall be 
fixed by resolution or resolutions of the governing 
body. The bonds may be issued either all at one 
time or from time to time in blocks, and different 
provisions may be made for different blocks. (1917, 
c. 138, s. 25; 1919, c. 178, s. 3 (25); Ex. Sess. 1921, 
c. 106, s. 1; 1933, c. 259, s. 1.) 

Editor's Note. — 

Public Laws 1933, c. 259, inserted the words "or other- 
wise" following the word "semi-annually." 

[1 



§ 2952. Bonded debt payable in installments. 

— Each bond issue made under this act shall 
mature in annual installments or series, the first 
of which shall be made payable not more than 
three years after the date of the first issued bonds 
of such issue, and the last within the period deter- 
mined and declared pursuant to section two thou- 
sand nine hundred and forty-two of this sub- 
chapter. No such installment or series shall be 
more than two and one-half times as great in 
amount as the smallest prior installment or series 
of the same bond issue. If all of the bonds of an 
issue are not issued at the same time, the bonds 
at any one time outstanding shall mature as afore- 
said. This section shall not apply to funding or 
refunding bonds. (1917, c. 138, s. 26; 1919, c. 178, 
s. 3 (26); Ex. Sess. 1921, c. 106, s. 1; 1931, c. 60, 
s. 52; 1933, c. 259, s. 1.) 

Editor's Note.— 

Public Laws 1933, c. 259, inserted the last sentence of the 
section stating that the section shall not apply to fundinjj 
or refunding bonds. Prior to the amendment the section 
was applicable to such bonds in municipalities having a 
debt of less than twelve per cent of the assessed valuation. 

§ 2959. Taxes levied for payment of bonds. — 

The full faith and credit of the municipality shall 
be deemed to be pledged for the punctual pay- 
ment of the principal of and interest on every 
bond and note issued under this law, including as- 
sessment bonds or other bonds for which special 
unds are provided. The governing body shall 
annually levy and collect a tax ad valorem upon 
all the taxable property in the municipality suffi- 
cient to pay the principal and interest of all bonds 
issued under this act as such principal and interest 
become due: Provided, however, that such tax 
may be reduced by the amount of other moneys 
appropriated and actually available for such pur- 
pose. 

So much of the net revenue derived by the mu- 
nicipality in any fiscal year from the operation of 
any revenue producing enterprise owned by the 
municipality after paying all expenses of operat- 
ing, managing, maintaining, repairing, enlarging 
and extending such enterprise, shall be applied, 
first to the payment of the interest, payable in the 
next succeeding year on bonds issued for such 
enterprise, and next, to the payment of the 
amount necessary to be raised by tax in such suc- 
ceeding year for the payment of the principal of 
said bonds. All money derived from the col- 
lection of special assessments for local improve- 
ments for which bonds or notes were issued shall 
be placed in a special fund and used only for the 
payment of bonds or notes issued for the same or 
other local improvements. 

Every municipality shall have the power to levy 
taxes ad valorem upon all taxable property there- 
m for the purpose of paying the principal of or 
the interest on any bonds or notes for the pay- 
ment of which the municipality is liable, issued 
under any act other than this law, or for the pur- 
pose of providing a sinking fund for the payment 
of said principal, or for the purpose of paying the 
principal of or interest on any notes issued under 
this law. 

The powers stated in this section in respect of 
the levy of taxes for the payment of the principal 
and interest of bonds and notes shall not be sub- 
ject to any limitation prescribed by law upon the 
19] 



§ 2982 



NEGOTIABLE INSTRUMENTS 



§ 3047 



amount or rate of taxes which a municipality may 
levy. Taxes levied under this section shall be 
levied and collected in the same manner as other 
taxes are levied and collected upon property in the 
municipality: Provided, in the case of funding or 
refunding bonds which do not mature in install- 
ments, as provided in section two thousand nine 
hundred fifty-two of this act, a tax for the pay- 
ment of the principal of said bonds need not be 
levied prior to the fiscal year or years said bonds 
mature unless it is sO' provided for in an ordinance 
or resolution passed before the issuance of said 
bonds, in which case such tax shall be levied in 
accordance with the provisions of such ordinance 
or resolution. (1917, c. 138, s. 33; 1919, c. 178, s. 
3 (33) ; Ex. Sess. 1931, c. 106, s. 1; 1933, c. 259, s. 1.) 

Editor's Note. — 

Public Laws 1933, c. 259, inserted the proviso at the en.l 
of this section. 



CHAPTER 58 

NEGOTIABLE INSTRUMENTS 
Art. 2. Form and Interpretation 
§ 2982. Form of negotiable instrument. 

Form of Instrument. — 

The provisions therein that a bond should be payable to 
bearer, or if registered to the registered holder only, and 
provisions fof an extension of time, upon application of the 
maker, in the discretion of trustee in the deed of trust se- 
curing it, does not change its negotiable character. Thomas 
V. De Moss, 302 N. C. 646, 163 S. E. 759. 

A municipal bond payable to ibearer, and otherwise com- 
plying as to form with the provisions of this section, is a 
negotiable instrument, and as such when in the hands of a 
holder in due course as defined by C. S., 3033, is not subject 
to defenses which would otherwise ordinarily be available to 
the municipal corporation by which the bond was issued. 
Bankers' Trust Co. v. Statesville, 203 N. C. 399, 407, 166 
S. E. 169. 

A bond indemnifying a bank from any loss which it might 
sustain by reason of its taking over the assets and discharg- 
ing the liabilities of another bank, the bond being payable 
to the liquidating bank and not to its order, is not a ne- 
gotiable instrument within the meaning of this section. North 
Carolina Bank, etc., Co. v. Williams, 201 N. C. 464, 160 S. 
E. 484. 

Cited in Dixon v. Smith, 204 N. C. 480, 168 S. E. 683. 

Holders of negotiable mortgage notes are necessary parties 
plaintiff in an equitable action to reform the deed of trust 
and the notes. First Nat. Bank v. Thomas, 204 N. C. 599, 
169 S. E. 189. 

§ 2997. DeliveiY necessary; when effectual; 
when presumed. 

Presumption of Delivery to Holder 

Where a negotiable municipal bond is 
holder in due course, it is conclusively presumed that a 
valid delivery of the bonds had been made so far as the 
rights of the holder are concerned. Bankers' Trust Co. v. 
Statesville, 203 N. C. 399, 166 S. E. 169. 

Art. 3. Consideration 
§ 3008. Effect of want of consideration. 

Failure of consideration is a vedid defense to a note un- 
der seal by reason of the fact the presumption arising from 
a seal upon a negotiable instrument is rebuttable. Pat- 
terson V. Fuller, 203 N. C. 788, 791, 167 S. E. 74. 

Art. 4. Negotiation 
§ 3010. What constitutes negotiation. 

Cited in Di.xon v. Smith, 204 N. C. 480, 168 S. E. 683. 

§ 3019. Qualified indorsement. 

Qualifying Words May Precede or Follow Signature.— 

The words qualifying an endorsement of a negotiable in 
strument, such as "without recourse" and words of likr 
effect, may either precede or follow the signature of the 



in Due Course. — 

in the hands of a 



transferer of title. Medlin v. Miles, 201 N. C. 683, 161 S. 
E. 207. 

Qualified Indorser May Be Liable on WarrEuities. — A ne- 
gotiable instrument transferred by an endorsement read- 
ing "for value received I hereby sell, transfer and assign 
all my right, title and interest to within note to M." as- 
signs title to the instrument by qualified endorsement, ex- 
empting the transferer from all liability as a general en- 
dorser, except that he is still chargeable with implied war- 
ranties as a seller. Medlin v. Miles, 201 N. C. 683, 161 S. 
E. 207. 

§ 3028. Continuation of negotiable character. 

Applied in Dunlap v. London Guaranty, etc., Co., 202 N. 
C. 651, 163 S. E. 750. 

§ 3031. When prior party may negotiate instru- 
ment. 

One who obtains possession of a note or bill after en- 
dorsing it is restored to his origined position and cannot 
hold intermediate parties; and one who acquires possession 
of the instrument from such person, with notice of the 
fact, cannot hold the intermediate endorser. Ray v. Liv- 
ingston, 204 N. C. 1, 4, 167 S. E. 4%. 

Art. 5. Rights of Holder 
§ 3033. What constitutes holder in due course. 

Cross Reference. — As to defenses which may or may not 
be set up against a holder in due course see § 3038 and the 
note thereto. 

Indorsement Necessary. — See Keith v. Henderson County, 
204 N. C. 21, 24, 167 S. E. 481, following statement under 
this catchline in Code of 1931. 

The transfer by endorsement to another of a bond in- 
demnifying a bcmk from any loss which it might sustain 
by reason of its taking over the assets and discharging 
the liabilities of another bank, is an assignment of a chose 
in action, and the assignee is not a holder in due course. 
North Carolina Bank, etc., Co. v. Williams, 201 N. C. 464,- 
160 S. E. 484. 

Applied in Wellons v. Warren, 203 N. C. 178, 165 S. E. 
545; Bankers' Trust Co. v. Statesville, 203 N. C. 399, 1C6. 
S. E. 169. 

Cited in Dixon v. Smith, 204 N. C. 480, 168 S. E. 683. 

§ 3038. Rights of holder in due course. 

In General. — 

The maker of a note may not set up defenses he may 
have against the payee of the note in an action by a holder 
in due course, but where the holder is not a holder in due 
course without notice, the maker may set up all defenses- 
which he may have as against the payee. Federal Re- 
serve Bank v. Atmore, 200 N. C. 437, 157 S. E. 129. 

Where the answer sufficiently alleges that the holder W3.j 
not a holder in due course for value without notice, all de- 
fenses which the defendant may have are presentable un- 
der the pleadings. Id. 

Cited in Dixon v. Smith, 204 N. C. 480, 168 S. E. 683. 

§ 3039. When subject to original defenses. 

In General. — 

A holder in due course may transfer a complete title to- 
a third person although the latter when he takes the pa- 
per has knowledge of facts which would defeat recovery by 
the payee. Wellons v. Warren, 203 N. C. 178, 181, 165 .S. 
E. 545. 

"But this rule is subject to the single exception that if 
the note were invalid as between the maker and the payee, 
the payee could not himself, by purchase from a bona fide 
holder, become successor to his rights, it not being essen- 
tial to such bona fide holder's protection to extend the 
principle so far." Ray v. Livingston, 204 N. C. 1, 4, 167' 
S. E. 496. 

§ 3040. Who deemed holder in due course. 

Cited in Dixon v. Smith, 204 N. C. 480, 168 S. E. 683. 

Art. 6. Liabilities of Parties 
§ 3044. When person deemed indorser. 

Applied in Corporation Commission v. Wilkinson, 201 N> 
C. 344, 160 S. E. 392; Hyde v. Tatham, 204 N. C. 160, 167 
S. E. 626. 

§ 3047. Liability of general indorser. 

Cross References. — As to words which exempt transferer 



[120] 



§ 3061 



PROBATE AND REGISTRATION 



§ 3308 



from liability as general endorser see § 3019 and the note 
thereto. 

Considered with Other Sections. — This section, which re- 
stricts the warranty to subsequent holders in due course, 
must be considered in connection with other sections of the 
Negotiable Instruments L,aw. Ray v. L,ivingston, 204 N. 
C. 1, 4, 167 S. E. 496. 

Parol Evidence. — Where an unqualified endorsement is 
supported by a valuable consideration and the maker seeks 
to enforce the endorser's liability the endorser may intro- 
duce parol evidence of an agreement entered into by the 
parties contemporaneously with the execution of the note 
that payment was to be made out of a particular fund, but 
he may not introduce parol evidence in contradiction of 
the written terms of the note that he was not to be 
hfld liable in any event. Kindler v. Wachovia Bank, etc., 
Co., 204 N. C. 198, 167 S. E. 811. 

AppUed in Hyde v. Tatham, 204 N. C. 160, 167 S. E. 626. 

Art. 7. Presentment for Payment 

§ 3061. When presentment not required to 
charge the indorsed. 

This section is not applicable where holder testifies en- 
dorser wcis not Eiccommodation endorser. Hyde v. Tatham. 
204 N. C. 160, 167 S. E. 626. 

Art. 8. Notice of Dishonor 

§ 3071. To whom notice of dishonor must be 
given. 

Effect of Endorser's Consent to Extension of Time. — It 

cannot be determined as a matter of law that an endorser 
is not entitled to notice of dishonor as provided in this 
section, by reason of his consent to an extension of time 
of payment granted the principal. Davis v. Royall, 204 N. 
C. 147, 167 S. E. 559. 

Art. 9. Discharge 
§ 3102. Discharge of person secondarily liable. 

Applied in Corporation Commission v. Wilkinson, 201 N. 
C. 344, 349, 160 S. E. 292. 

§ 3104. Renunciation by holder. 

A parol agreement between an officieil of a bcmk that the 
bank would release the endorsers or sureties on a note up- 
on the maker confessing judgment thereon is not enforce 
able, a verbal renunciation being ineffectual under the 
provisions of this section. Page Trust Co. v. Lewis, 200 
N. C. 286, 287, 156 S. E. 504. 

Art. 17. Promissory Notes and Checks 

§ 3168. Within what time a check must be pre- 
sented. 

In General. — 

A check is only conditional payment, but the payee must 
exercise due diligence in presenting it for payment, and 
where his failure to exercise such diligence causes loss he 
must suffer it, due diligence being determined in accord- 
ance with the facts and circumstances of each particular 
case. Henderson Chevrolet Co. v. Ingle, 202 N. C. 15S, 
162 S. E. 219. 



CHAPTER 62 

OFFICES AND PUBLIC OFFICERS 
Art. 1. General Provisions 

§ 3206. Citizen to recover funds of county or 
town retained by delinquent official. 

Under the provisions of this section, citizens and taxpay- 
ers of a county may maintain an action against the 
commissioners of the county and its defaulting sheriff to 
enforce collection of the amount of the default upon allega- 
tions that the county commissioners have corruptly re- 
fused to perform their duties in this respect. Weaver v. 
Hampton, 201 N. C. 798, 161 S. E. 480. 



CHAPTER 63 

PARTITION 
Art. 1. Partition of Real Property 

§ 3225(a). Judgments in partition of remain- 
ders validated. — In all cases where land has been 
conveyed by deed, or devised by will, upon con- 
tingent remainder, executory devise, or other limi- 
tation, where a judgment of partition has been 
rendered by the superior court authorizing a di- 
vision of said lands upon the petition of the life 
tenant or tenants and all other persons then in 
being who would have taken such land if the con- 
tingency had then happened, and those unborn 
being duly represented by guardian ad litem, such 
judgment of partition authorizing a division of 
said lands among the respective life tenants and 
remaindermen, or executory devisees, shall be 
valid and binding upon the parties thereto and 
upon all other persons not then in being; Pro- 
vided, that nothing herein contained shall be con- 
strued to impair or destroy any vested right or 
estate. (1933, c. 215, s. 1.) 

Art. 2. Partition Sales of Real Property 

§ 3240. Notice of partition sale. — The notice 
of sale, under this proceeding, shall be the same 
as required by law on sales of real estate by sher- 
iff under execution: Provided, however, that in 
case a re-sale of such real property shall become 
necessary under such proceeding, that such real 
property shall then be re-sold only after notice of 
re-sale has been duly posted at the courthouse 
door in the county for fifteen days immediately 
preceding the re-sale and also published at any 
time during such fifteen day period once a week 
for two successive Vi^eeks of not less than eight 
days in some newspaper published in the county, 
if a newspaper is published in the county, but if 
there be no newspaper published in said county 
the notice of re-sale must be posted at the court- 
house door and three other public places in the 
county for fifteen days immediately preceding the 
re-sale. (Rev., s. 2514; Code, s. 1905; 1868-9, c. 
122, s. 14; 1933, c. 187.) 

Editor's Note.— Public Laws 1933, c. 187, added the pro- 
viso at the end of this section relating to notices of resale. 



CHAPTER 65 

PROBATE AND REGISTRATION 
Art. 1. Probate 

§ 3301(a). Probate before stockholders in bank- 
ing corporations. 

Under this section where a mortgage is executed on the 
equity in lands in order to secure endorsers on a note 
^gainst loss and the note is discounted at a bank, the con- 
tract to secure the endorsers against loss is a collateral 
agreement between the makers and endorsers to which the 
bank is not a party, and the acknowledgment to the mort- 
gage taken by an official of the bank is valid. Watkins 
V. Simonds, 202 N. C. 746, 164 S. E. 363. 

Art. 2. Registration 

§ 3308. Probate and registration sufficient with- 
out livery. 

Probate May Be Sufficient as Contract. — While the or- 
der of probate cannot authorize the registration of an in- 
strument in the form of a deed which has been defectively 
executed, it is sufficient, nevertheless, to authorize its 
registration as a contract to convey, which is expressly 



[121] 



§ 3309 



PROHIBITION 



§ 3411(b) 



provided for in this and the following section. Haas v. 
Rendleman, 62 F. (2d) 701. 

§ 3309. Conveyances, contr'acts to convey, and 
leases of land. 

IV. RIGHTS OF PERSONS PROTECTED. 

Cross References. — For a construction of § 1138 in con- 
nection with this section see annotations under that section. 

In General. — By virtue of this section only creditors of 
the donor, bargainor, or lessor, and purchasers for value 
are protected against an unregistered deed, contract to 
convey, or lease of land for more than three years. Gos- 
ney v. McCullers, 202 N. C. 326, 162 S. FJ. 746. 

Right to Easement. — Under this section where a grantor 
conveys land by registered deed creating an easement in 
land reserved by grantor, his grantee is entitled to the 
easement unaffected by an unregistered contract to coit- 
vey the reserved land executed prior to the deed. Walker 
V. Phelps, 202 N. C. 344, 163 S. E. 727. 

Where a deed provides that it is subject to a vrritten 
lease previously executed by the grantor, the grantee takes 
the premises subject to the lease although the lease is for 
more than three years and is not recorded. Hildebrand 
Machinery Co. v. Post, 204 N. C. 744, 169 S. FJ. 629. 

§ 3311. Deeds of trust and mortgages, teal and 
personal. 

1. GENERAL CONSIDERATION. 
Under this and the foUo^ng section where a chattel 
mortgage is registered prior to the registration of the title- 
retaining contract the lien of the chattel mortgage is supe- 
rior to that of the title-retaining contract. Jordan v. Wet- 
mur, 202 N. C. 279, 162 S. F- 610. 

III. INSTRUMENTS AFFECTED. 
Absolute Sale Not Affected.— 

It is not necessary under this section that a sale or con- 
veyance of personal property by a corporation shall be in 
writing or shall be registered for any purpose when sucli 
sale is absolute and delivery of the property is made to 
the purchaser. Carolina Coach Co. v. Begnell, 203 N. C. 
656, 166 S. E. 903. 

Under this section where a transaction is in effect a 
pledge of security for borrowed money, it is not a chattel 
mortgage requiring registration as against creditors and 
third persons. Bundy v. Commercial Credit Co., 201 N. 
C. 604, 163 S. E. 676. 

Advancement of Money to Pay Off Lien. — This section 
does not apply to the application of the equitable subroga- 
tion of lien in favor of one advancing money to pay off 
existing mortgage liens upon lands. Wallace v. Benner, 
200 N. C. 124, 125, 156 S. E. 795. 

§ 3312. Conditional sales of personal property. 

Effect of Section . — 

Where personal property is sold under a registered con- 
ditional sales contract and the purchase price is not paid 
in accordance with the agreement, the seller is the owner 
thereof and is entitled to possession as against the pur- 
chaser and all persons claiming under him. Brunswick- 
Balke-CoUender Co. v. Carolina Bowling Alleys, 204 N. C. 
609, 169 S. E. 186. 

Other Notice Will Not Take Place of Registration.— No 
notice however full and formal can supply notice by regis- 
tration and thus by virtue of this section where a condi- 
tional sale contract has not been registered a subsequent 
purchaser acquires title free from its lien. Brown v. Burl- 
ington Hotel Corp., 202 N. C. 82, 161 S. E. 735. 

No Registration or Writing as Between Parties. — It has 
been uniformly held that a mortgage or conditional sales 
contract although not recorded, is valid as between the 
parties. It is void only as against creditors or purchasers 
for value. Cutter Realty Co. v. Dunn Moneyhun Co., 204 
N. C. 651, 653, 169 S. E. 274. 

Art. 4. Curative Statutes; Acknowledgments; Pro- 
bates; Registration 

§ 3333(a). Defective acknowledgment on old 
deeds validated. — ^The clerk of the superior court 
may order registered any deed, or other convey- 
ance of land, in all cases where the instrument and 
probate bears date prior to January first, one 
thousand nine hundred and seven (1907) where the 
acknowledgment, private examination, or other 
proof of execution, has been taken or had before 



a notary public residing in the county where the 
land is situate, where said officer failed to affix his 
official seal, and where the certificate of said officer 
appears otherwise to be genuine. (1933, c. 439.) 

§ 3337. Before justices of peace, where clerk's 
certificate or order or registration defective. 

For amendment applicable in Clay county only, see P. L,. 
1933, c. 530. 

§ 3345. Probates before officer of interested cor- 
poration. 

Although a grantee in a chattel mortgage is not qualified 
to take the acknowledgment thereof, a chattel mortgage 
to a bank will not be declared void because the acknowl- 
edgment thereof was taken by its cashier. Bank of Dup- 
lin v. Hall, 203 N. C. 570, 166 S. E- 526. 

§ 3366(i) 1. Validation of corporate deed with 
mistake as to officer's name. — In all cases where 
the deed of a corporation executed before the first 
day of January, 1918, is properly executed, prop- 
erly recorded and there is error in the probate of 
said corporation's deed as to the name or names 
of the officers in said probate, said deed shall be 
construed tO be a deed of the same force and ef- 
fect as if said probate were in every way proper. 
(1933, c. 412, s. 1.) 



CHAPTER 66 

PROHIBITION 
Art. 6. Seizure and Forfeiture of Property 
§ 3401. Fee for seizure. 

Editor's Note.— 

Public Laws 1933, c. 246 provides that this section shall 
not apply to Moore and Lenoir counties. Public Laws 
1933, c. 230 provides that the sum received by the officer 
in Warren county shall not exceed five dollars. 

§ 3402(a). Sections 3401 and 3402, repealed, as 
to still rewards; counties excepted. — Sections 
three thousand four hundred and one and three 
thousand four hundred and two of article six, 
chapter sixty-six of the consolidated statutes of 
North Carolina, are hereby repealed: Provided 
the county commissioners of Surry, Avery, North- 
ampton, Greene, Alamance counties shall pay the 
sum of ($5.00) five dollars for the capture of each 
distillery captured in said counties: Provided the 
commissioners of Radkin county may in their dis- 
cretion pay not exceeding ($5.00) five dollars: 
Provided that the county commissioners of Gra- 
ham and Jackson counties be allowed to pay, not 
to exceed, the sum of ($5.00) five dollars for seiz- 
ure of a distillery: Provided that this section shall 
not apply to the counties of Caswell, Chowan, and 
Wilson counties. 

This section shall not repeal any public-local 
law. (1933, c. 480, s. 1.) 

Art. 8. National Liquor Law, Conformation of 
, State Law 

§ 3411(a). Definitions. 

Beverages Not Enumerated. — It may be shown in evi- 
dence as a fact that other beverages than those defined by 
this section as intoxicating and prohibited are intoxicating 
in fact and come within the intent and meaning of the 
statute. State v. Fields. 201 N. C. 110, 159 S. E. U. 

§ 3411(b). Manufacture, sale, etc., forbidden; 
construction of law; nonbeverage liquor. 

Effect on Recovery under Compensation Act.— The mere 
fact that an applicant for compensation under the provi- 



123 ] 



§ 341 l(x) 



PROHIBITION 



§ 3411(U) 



sions of the Workmen's Compensation Act had in his pos- 
session whiskey contrary to this section does not alone 
jjrevent the recovery of compensation. Jackson v. Dairy- 
men's Creamery, 202 N. C. 196, 162 S. E. iS9. 

§ 341 l(x). Rewards for seizure of still. 

Public Laws 1933, c. 246, provides that this section shall 
not apply in Moore and Lenoir counties. For an amend- 
ment of this section applicable in Burke County only, see 
Public Laws 1933, c. 136. 

Art. 9. Legalization of Sale of Beverages with Not 
More Than 3.2% Alcoholic Content. 

§ 3411(dd). Sale of beer and light wines in state 
allowed. — ^On an after the passage of this article 
it shall be lawful for any person, firm, or corpora- 
tion to sell, barter, trade, exchange, or dispose of 
beer, lager beer, ale, porter, fruit juices, and/or 
light -wines, containing not more than 3.2% of al- 
cohol by weight, or such other percentage as may 
conform to any act of the congress of the United 
States, within the domains of the state of North 
Carolina, subject, however, to payment of tax 
hereinafter imposed. (1933, c. 216, s. 1.) 

Editor's Note. — For local modifications prohibiting sales 
in or near certain specified places see Public Laws 1933. 
c. 454 (Quaker Children's Home and Wingate Junior Col- 
lege); c. 472 (Pelham M, F. Church, South); c. 395 (village 
of Macon); c. 396 (Montreal, Mars Hill and association 
grounds of Baptist assembly at Ridge Crest); c. 455 
(Stumpy Point voting Precinct, Dare County); c. 381 (Cane 
Creek Church and Sylvan High School in Southern Ala- 
mance County) ; cc. 369, 406 (Guilford College) ; c. 564 
(Wake Forest College); c. 370 (Oak Ridge Military In- 
stitute); c. 416 (Town of Bakersville) ; c. 417 (Flon Col- 
lege); c. 313 (Davidson College); and c. 512 (village of 
Worthville). For other local restrictions, see note to § 
3411(1). 

§ 3411(ee). Tax $2 per barrel; on bottles, 2c.— 

There shall be levied and collected on all beer, 
lager beer, ale, porter, fruit juices, and/or other 
light wines, containing not more than 3.2% of al- 
cohol by weight, by whatever name the same may 
be called, offered for sale in this state a tax of two 
dollars ($2.00) for every barrel containing not more 
than thirty-one (31) gallons and at a proportionate 
rate for barrels containing more than thirty-one 
(31) gallons: Provided, however, that if such 
beer, lager beer, ale, porter, fruit juices, and/or 
other light wines be offered for sale in bottles, 
there shall be levied and collected a tax of two 
cents for every bottle containing not more than 
twelve (12) ounces, and a proportionate rate for 
bottles containing more than twelve (13) ounces. 
(1933, c. 216, s. 2.) 

§ 3411 (fF). Revenue department to make regu- 
lations; revenue to general fund. — The North 
Carolina department of revenue is hereby au- 
thorized, empowered and directed to promulgate 
rules and regulations governing the sale and dis- 
tribution of such beer, lager beer, ale, porter, fruit 
juices, and/or other light wines, and the payment 
of the taxes hereby levied, which revenue derived 
from the sale of the aforesaid sale of beer, lager 
beer, ale, porter, fruit juices, and/or other light 
wines shall be placed in the general fund of the 
state of North Carolina. (1933, c. 216, s. 3.) 

§ 3411(gg). County license fee of $25.— It shall 
be unlawful for any person, firm, or corporation to 
sell beer, lager beer, ale, porter, fruit juices, and/ 
or other light wines in North Carolina without 
first applying for and receiving a permit or license 
from the board of commissioners of the several 
counties of the state, which license fee shall be 

[1 



fixed at the sum of twenty-five ($25.00) dollars 
and placed in the treasury of the county, to be 
used in the payment of the public debt of said 
counties. (1933, c. 216, s. 4.) 

§ 3411 (hh). Tax for municipalities, $10. — Each 

and every incorporated city or town in North Car- 
olina may levy a similar license tax on each dealer 
inside, or two miles outside the incorporated lim- 
its of such city or town not exceeding the sum of 
ten ($10.00) dollars, the license for incorporated 
cities and towns, and the funds derived therefrom 
shall be put in the general funds of the city or 
town, to be used in their debt-service fund. (1933, 
c. 216, s. 5.) 

§ 3411(ii). Sale in places used expressly for pur- 
pose prohibited. — It shall be unlawful to sell, bar- 
ter, exchange, dispose of or allow to be sold, bar- 
tered, exchanged, disposed of any such beer, lager 
beer, ale, porter, fruit juices and/or other light 
wines in any container in any place, building, edi- 
fice or structure primarily and expressly used, 
rented, occupied or maintained for the sole or pri- 
mary purpose of selling such beer, lager beer, ale, 
porter, fruit juices and/or other light wines, and 
no county, city or town shall license the sale of 
any beer, lager beer, ale, porter, fruit juices and/or 
other light wines, and shall revoke any license 
heretofore granted when it shall be made to appear 
that the same is being sold in any place, building, 
edifice or structure primarily and expressly used, 
rented, occupied or maintained for the sole and/or 
primary purpose of selling such beer, lager beer, 
ale, porter, fruit juices, and/or other light wines. 
(1933, c. 216, s. 0.) 

§ 3411(jj). Sale without license made misde- 
meanor. — It shall be unlaw^ful for any person, firm, 
or corporation to sell, barter, exchange, dispose 
of, or allow to be sold, bartered, exchanged, or 
disposed of such beer, lager beer, ale, porter, fruit 
juices, and/or other light wines on which the tax 
hereby levied be not paid to the state, county, city 
or town, and any person, firm, or corporation so 
selling, bartering, exchanging, disposing of, or al- 
lowing to be sold, bartered, exchanged, or dis- 
posed of such beer, lager beer, ale, porter, fruit 
juices and/or other light wines, or who shall fail 
to keep accurate records of wholesale purchases, 
shall be deemed guilty of a misdemeanor, and upon 
conviction shall be fined or imprisoned in the dis- 
cretion of the court, for each offense. (1933, c. 
216, s. 7.) 

§ 3411 (kk). Sale to minors under 18 made mis- 
demeanor. — It shall be unlawful for any person, 
firm, or corporation to sell or give any of the prod- 
ucts herein authorized to be sold to any minor un- 
der eighteen years of age; and any person violat- 
ing the terms of this section shall be guilty of a 
misdemeanor and punished for each offense in the 
discretion of the court. (1933, c. 216, s. 8.) 

§ 3411(11). Shipment into state of beer and light 
wines permitted. — It shall be lawful for any per- 
son, firm or corporation to transport and deliver 
beer, lager beer, ale, porter, fruit juices, light wines 
and/or other brewed or fermented beverages, con- 
taining not more than three and two-tenths (3.2%) 
per cent of alcohol bj' weight, or such other per- 
centage as may conform to any act of the congress 
23] 



§ 3411 (mm) 



PROHIBITION 



§ 3411(5) 



of the United States, within the domains of the 
state of North Carolina. (1933, c. 297, s. 1.) 

§ 3411 (mm). Laws prohibiting advertisement of 
beer and light wines repealed. — All laws and 
clauses of laws prohibiting newspaper, radio, bill- 
board or other forms of advertising for sale of 
beer, lager beer, ale, porter, fruit juices and/or 
other light wines containing not more than 3.2 per 
cent of alcohol by weight, are hereby repealed. 
(1933, c. 316, s. 11, c. 239.) 

Art. 10. Beverage Control Act of 1933 

§ 3411(1). Title. — This article shall be known 
as the beverage control act of one thousand nine 
hundred and thirty-three. (1933, c. 319, s. 1.) 

Editor's Note. — For local restrictions on sale of beer and 
wine, see note to § 3411(dd). See also Public Laws 1933, c. 
508, regulating sale in Yancey ville; c. 475 prohibiting sal-' 
in Frenches Creek Township; c. 398 restricting sale near 
Campbell College; and c. 358 prohibiting sale within mile 
of Pineland Junior College. See also note to § 3411 (dd). 

§ 3411(2). Definitions. — ^The term "beverages" 
as used in this article shall include beer, lager 
beer, ale, porter, wine, fruit juices and other 
brewed or fermented beverages containing one- 
half of one per cent (^) of alcohol by volume but 
not more than three and two-tenths per cent 
(3.2%) of alcohol by weight as authorized by the 
laws of the United States of America. 

The term "person" used in this article shall 
mean any individual, firm, partnership, association, 
corporation, or other group or combination acting 
as a unit. 

The term "sale" as used in this article shall in- 
clude any transfer, trade, exchange or barter in 
any manner or by any means whatsoever. (1933, 
c. 319, s. 2.) 

§ 3411(3). Regulations. — ^The beverages enumer- 
ated in section 3411(2) may be manufactured, 
transported or sold in this state in the manner and 
under the regulations hereinafter set out. (1933, 
c. 319, s. 3.) 

§ 3411(4). Transportation. — The beverages enu- 
merated in section 3411(2) may be transported 
into, out of or between points in this state by rail- 
road companies, express companies or by steam- 
boat companies engaged in public service as com- 
mon carriers and having regularly established 
schedules of service upon condition that such com- 
panies shall keep accurate records of the character 
and volume of such shipments, the character and 
number of packages, or containers, shall keep rec- 
ords open at all times for inspection by the com- 
missioner of revenue of this state or his authorized 
agent, and upon condition that such common car- 
rier shall make report of all shipments of such bev- 
erages into, out of or between points in this state 
at such times and in such detail and form as may 
be required by the commissioner of revenue. 

The beverages enumerated in section 3411(2) 
may be transported into, out of or between points 
in this state over the public highways of this state 
by motor vehicles upon condition that every per- 
son intending to make such use of the highways 
of this state shall as a prerequisite thereto register 
such intention with the commissioner of revenue in 
advance of such transportation, with notice of the 
kind and character of such products to be trans- 
ported and the license and motor number of each 



motor vehicle intended to be used in such trans- 
portation. Upon the filing of such information, 
together with an agreement to comply with the 
provisions of his act, the commissioner of revenue 
shall without charge therefor issue a numbered 
certificate to such owner or operator for each mo- 
tor vehicle intended to be used for such transpor- 
tation, which numbered certificate shall be prom- 
inently displayed on the motor vehicle used in 
transporting the products named in section 3411- 
(2). Every person transporting such products 
over any of the public highways of this state shall 
during the entire time he is so engaged have in 
his possession an invoice or bill of sale or other 
record evidence, showing the true name and ad- 
dress of the person from whom he has received 
such beverages, the character and contents of con- 
tainers, the number of bottles, cases or gallons of 
such shipment, the true name and address of every 
person to whom deliveries are to be made. The 
person transporting such beverages shall, at the 
request of any representative of the commissioner 
of revenue, produce and offer for inspection said 
invoice or bill of sale or record evidence. If said 
person fails to produce invoice or bill of sale or 
record evidence, or if when produced, it fails to 
clearly and accurately disclose said information, 
the same shall be prima facie evidence of the vio- 
lation of this article. Every person engaged in 
transporting such beverages over the public high- 
ways of this state, shall keep accurate records of 
the character and volume of such shipments, the 
character and number of packages or containers, 
shall keep records open at all times for inspection 
by the commissioner of revenue of this state, or 
his authorized agent, and upon condition that such 
person shall make report of all shipments of such 
beverages into, out of or between points in this 
state at such times and in such detail and form as 
may be required by the commissioner of revenue. 

The purchase, transportation and possession of 
beverages enumerated in section 3411(2) by indi- 
viduals for their own use is permitted without re- 
striction or regulation. The provisions of this 
section as to transportation of beverages enumer- 
ated in section 3411(3) by motor vehicles over the 
public highways of this state shall in like manner 
apply to the owner or operator of any boat using 
the waters of this state for such transportation, 
and all of the provisions of this section with re- 
spect to permit for such transportation and re- 
ports to the commissioner of revenue by the op- 
erators of motor vehicles on public highways shall 
in like manner apply to the owner or operator of 
any boat using the waters of this state. (1933, c. 
319, s. 4.) 

§ 3411(5). Manufacture. — The brewing or manu- 
facture of beverages for sale enumerated in sec- 
tion 3411(2) shall be permitted in this state upon 
the payment of an annual license tax to the com- 
missioner of revenue in the sum of five hundred 
dollars ($500.00) for a period ending on the next 
succeeding thirtieth day of April and annually 
thereafter. Persons licensed under this section 
may sell such beverages in barrels, bottles, or other 
closed containers only to persons licensed under 
the provisions of this act for resale, and no other 
license tax shall be levied upon the business taxed 
in this section. The sale of malt, hops, and other 
ingredients used in the manufacture of beverages 



[124] 



§ 3411(6) 



PROHIBITION 



§ 3411(12) 



for sale enumerated in section 3411(2) are hereby 
permitted and allowed: Provided, that it shall 
be lawful for any person to manufacture the wine, 
fruit juices and other fermented beverages made 
of fruit, described in section 3411(2) for his own 
use without obtaining the license required by this 
section. (1933, c. 319, s. 5.) 

§ 3411(6). Bottlers' license. — License to receive 
shipments of beverages enumerated in section 
3411(2) in barrels or other containers and bottling 
same for sale to others for resale shall be issued 
by the commissioner of revenue upon the payment 
of an annual license tax of two hundred and fifty 
dollars ($250.00) for a period ending on the next 
succeeding thirtieth day of April and annually 
thereafter, and no other license tax shall be levied 
upon the business taxed in this section. Licensees 
under this section shall pay the tax of one cent 
per bottle levied in section 3411(16): Provided 
no tax shall be paid upon such beverages in bar- 
rels, where such beverages are to be bottled. (1933, 
c. 319, s. 6.) 

§ 3411(7). Wholesalers' license. — License to sell 
at wholesale, which shall authorize licensees to 
sell beverages in barrels, bottles, or other con- 
tainers in quantities of not less than one case or 
container to a customer, shall be issued as a state- 
wide license by the commissioner of revenue. 
The annual license under this section shall be one 
hundred and fifty dollars ($150.00) and shall ex- 
pire on the next succeeding 30th day of April. 
The license issued under this section shall be 
revocable at any time by the commissioner of 
revenue for failure to comply with any of the 
conditions of this act with respect to the charac- 
ter of records required to be kept, reports to be 
made or payment of other taxes hereinafter set 
out. 

If any wholesaler maintains more than one 
place of business or storage warehouse from 
which orders are received or beverages are dis- 
tributed a separate license shall be paid for each 
separate place of business or warehouse. 

The owner or operator of every distributing 
Vi^arehouse selling, distributing or supplying to 
retail stores beverages enumerated in section 
3411(2) shall be deemed wholesale distributors 
within the meaning of this article and shall be 
liable for the tax imposed in this section and shall 
comply with the conditions imposed in this ar- 
ticle upon wholesale distributors of beverages 
with respect to payment of taxes levied in this 
article and bond for the payment of such taxes. 
(1933, c. 319, s. 7.) 

§ 3411(8). On railroad trains.— The sale of bev- 
erages enumerated in section 3411(2) shall be 
permitted on railroad trains in this state to be 
sold only in dining cars, buffet cars, pullman cars, 
or club cars, and for consumption on such cars 
upon payment to the commissioner of revenue of 
one hundred ($100.00) dollars for each railroad 
system over which such cars are operated in this 
state for an annual state-wide license expiring on 
the next succeeding thirtieth day of April. No 
other license shall be levied upon licensees under 
this section, but every licensee under this section 
shall make a report to the commissioner of reve- 
nue on or before the tenth day of each calendar 

[IS 



month covering sales for the previous month and 
payment of the tax on such sales at the rate of 
tax levied in this article. (1933, c. 319, s. 8.) 

§ 3411(9). Salesmen's license. — License for 
salesmen, which shall authorize the licensee to 
offer for sale within the state or solicit orders for 
the sale of within the state beverages enumerated 
in this article, shall be issued by the commissioner 
of revenue upon the payment of an annual license 
tax of twelve dollars and fifty cents ($12.50) to 
the commissioner of revenue, such license to ex- 
pire on the next succeeding thirtieth day of April. 
License to salesmen shall be issued only upon the 
recommendation of the vendor whom they repre- 
sent, and no other license tax shall be levied un- 
der this section. (1933, c. 319, s. 9.) 

§ 3411(10). Character of license. — License is- 
sued under authority of this act shall be of two 
kinds: 

(1) "On Premises" license which shall be is- 
sued for bona fide restaurants, cafes, cafeterias, 
hotels, lunch stands, drug stores, filling stations, 
grocery stores, cold drink stands, tea rooms, or 
incorporated or chartered clubs. Such license 
shall authorize the licences to sell at retail bev- 
erages for consumption on the premises desig- 
nated in the license, and to sell the beverages in 
original packages for consumption off the prem- 
ises. 

(2) "Off Premises" license which shall author- 
ize the licensee to sell at retail beverages for con- 
sumption only off the premises designated in the 
license and only in the immediate container in 
which the beverage was received by the licensee. 

In a municipality the governing board of such 
municipality shall determine whether an applicant 
for license is entitled to a "premises" license un- 
der the terms of this article, and outside of mu- 
nicipalities such determination shall be by the 
board of commissioners of the county. (1933, c. 
319, s. 10.) 

§ 3411(11). Amount of retail license tax. — The 

license tax to sell at retail under this article for 
municipalities shall be: 

(1) For "On Premises" license fifteen dollars 
($15.00). 

(2) For "Off Premises" license ten dollars 
($10.00). 

The rate of license tax levied in this section 
shall be for the first license issued to one person 
and for each additional license issued to one per- 
son an additional tax of ten per cent of the base 
tax, such increase to apply progressively for each 
additional license issued to one person. (1933, c. ^ 
319, s. 11.) 

§ 3411(12). Who may sell at retail. — Every per- 
son making application for license to sell at retail 
beverages enumerated in section 3411(2), if the 
place where such sale is to be made is within a 
municipality, shall make application first to the 
governing board of such municipality, and the 
application shall contain: 

(1) Name and residence of the applicant and 
the length of his residence within the state of 
North Carolina. 

(1/4) That state, county or city shall not issue 
license under this article to any person, firm or 

5] 



§ 3411(13) 



PROHIBITION 



§ 3411(17) 



corporation who has not been a bona fide resident 
of North Carolina for one year. 

That no resident of the state shall obtain a li- 
cense under this act and employ or receive aid 
from a non-resident for the purpose of defeating 
the above section. 

The penalty for violating item one and one-half 
shall be a misdemeanor. All persons convicted 
shall be imprisoned not more than thirty days, 
nor fined more than two hundred dollars. 

That this shall only apply to the following 
counties: Currituck, Camden, Pasquotank, Per- 
quimans, Chowan, Hertford, Dare, Gates, Polk 
and Henderson. 

(2) The particular place for which the license 
is desired, designating the same by a street and 
number if practicable; if not, by such other apt 
description as definitely locates him. 

(3) The name of the owner of the premises 
upon which the business licensed is to be carried 
on. 

(4) That the applicant intends to carry on the 
business authorized by the license for himself or 
under his immediate supervision and direction. 

(r>) A statement that the applicant is a resident 
of the state of North Carolina and not less than 
twenty-one years of age, that such applicant is 
of good moral character and has never been con- 
victed of a felony involving moral turpitude or 
adjudged guilty of violating the prohibition laws, 
either state or federal, within the last two years 
prior to the filing of the application. The appli- 
cation must be verified by the affidavit of the pe- 
titioner made before a notary public or other per- 
son duly authorized by law to administer oath. 
If it appear from the statement of applicant or 
otherwise that such applicant has been convicted 
of a felony involving moral turpitude or adjudged 
guilty of violating the prohibition laws, either 
state or federal, within the last two years prior 
to the filing of the application, or within two 
years from the completion of sentence, such li- 
cense shall not be granted, and if it shall after- 
wards appear that any false statement is know- 
ingly made in any part of said application and 
license received thereon, the license of the appli- 
cant shall be revoked and the applicant subjected 
to the penalty provided by law for misdemeanors. 
Before any such license shall be issued, the gov- 
erning body of the municipality shall be satisfied 
that statements required by subsections (1), (2), 
(3), (4) and (5) of this section are true. (1933, 
c. 319, s. 12, c. 444.) 

§ 3411(13). County license to sell at retail. — Li- 
cense to sell at retail shall be issued by the board 
of commissioners of the county, and application 
for such license shall be made in the same man- 
ner and contain the same information set out in 
the preceding section with respect to municipal 
license. If the application is for license to sell 
within a municipality, the application must also 
show that license has been granted the applicant 
by the governing board of such municipality. 
The granting of a license by the governing board 
of a municipality shall determine the right of an 
applicant to receive a county license upon com- 
pliance with the conditions of this article. 

If the application is for license to sell outside 
of a municipality within the county, the applica- 



tion shall also show the distance to the nearest 
church or public or private school from the place 
at which the applicant purposes to sell at retail. 
No license shall be granted to sell within three 
hundred (300) feet of any public or private school 
buildings or church building outside of incorpo- 
rated cities and towns: Provided, the restriction 
set forth in this sentence shall not apply to un- 
incorporated towns and villages having police 
protection. 

The clerk of the board of commissioners of 
each county shall make prompt report to the 
commissioner of revenue of each license granted 
by the board of commissioners of such county. 
The county license fee shall be fixed at $25.00 and 
the same shall be placed in the county treasury, 
for the use of the county. (1933, c. 319, s. 13.) 

§ 3411(14). Issuance of license mandatory; 
schools and churches protected. — It shall be man- 
datory that the governing body of a municipality 
or county issue license to any person applying for 
the same when such person shall have complied 
with the requirements of this article: Provided, 
no person shall dispense beverages herein author- 
ized to be sold, within fifty feet of a church build- 
ing in an incorporated city or town, or in a city 
or town having police protection whether incor- 
porated or not, while religious services are being 
held in such church, or within 300 feet of a church 
building outside the incorporate limits of a city 
or town while church services are in progress. 
(1933, c. 319, s. 14.) 

§ 3411(15). Expiration of licenses. — All licenses 
issued by counties and municipalities under this 
article shall be for the current year, and shall ex- 
pire on the next succeeding thirtieth day of April. 
(1933, c. 394, s. 1.) 

§ 3411(16). Revocation of license. — If any li- 
censee violates any of the provisions of this ar- 
ticle or any rules and regulations under authority 
of this article or fails to superintend in person or 
through a manager, the business for which the 
license was issued, or allows the premises with 
respect to which the license was issued to be used 
for any unlawful, disorderly or immoral purposes, 
or knowingly employs in the sale or distribution 
of beverages any person who has been convicted 
of a felony involving moral turpitude or adjudged 
guilty of violating the prohibition laws within two 
years or otherwise fails to carry out in good faith 
the purposes of this article, the license of any 
such person may be revoked by the governing 
board of the municipality or by the board of 
county commissioners after the licensee has been 
given an opportunity to be heard in his defense. 
Whenever any person, being duly licensed under 
this article, shall be convicted of the violation of 
any of the prohibition laws on the premises 
herein licensed, it shall be the duty of the court 
to revoke said license. Whenever any license 
which has been issued by any municipality, any 
board of county commissioners or by the com- 
missioner of revenue has been revoked, it shall be 
unlawful to reissue said license for said premises 
to any person for a term of six months after the 
revocation of said license. (1933, c. 319, s. 15.) 

§ 3411(17). State license. — Every person who 
intends to engage in the business of retail sale of 



120 



§ 3411(18) 



PROHIBITION 



§ 3411(25) 



the beverages enumerated in section 3411(2) shall 
also apply for and procure a state license from 
the commissioner of revenue, which license shall 
be issued by the commissioner of revenue upon 
information that license to such person has been 
issued by the board of commissioners of the 
county for the place at which such licensee pro- 
poses to sell, and if in a municipality that such 
license has been granted by the governing board 
of the municipality, and upon the payment to the 
commissioner of revenue an annual license tax as 
follows: 

For the first license issued to each licensee five 
dollars ($5.00), and for each additional license 
issued to one person an additional tax of ten per 
cent (10%) of the five dollars base tax. That is 
to say, that for the second license issued the tax 
shall be five dollars and fifty cents ($5.50) an- 
nually, for the third license six dollars ($6.00) 
annually, and an additional fifty cents (50c.) per 
annum for each additional license issued to each 
person. (1933, c. 319, s. 16.) 

§ 3411(18). Additional tax.— In addition to the 
license taxes herein levied a tax is hereby levied 
upon the sale of the beverages enumerated in 
section 3411(2) of three dollars ($3.00) per bar- 
rel of thirty-one (31) gallons, of the equivalent 
of such tax in containers of more or less than 
thirty-one (31) gallons, and in bottles of not 
more than twelve (12) ounces per bottle a tax of 
one cent (Ic.) per bottle. (1933, c. 319, s. 17.) 

§ 3411(19). Tax payable by wholesale distrib- 
utors. — The tax levied in the preceding section 
shall be paid to the commissioner of revenue by 
the wholesale distributor or bottler of such bev- 
erages. The tax herein levied shall be paid by 
every wholesale distributor or bottler on or be- 
fore the tenth day of each month for all bever- 
ages sold within the preceding month. As a con- 
dition precedent to the granting of license by the 
commissioner of revenue to any wholesale dis- 
tributor or bottler of beverages under this article 
the commissioner of revenue shall require each 
such wholesale distributor or bottler to furnish 
bond in an indemnity company licensed to do 
business under the insurance laws of this state 
in such sum as the commissioner of revenue shall 
find adequate to cover the tax liability of each 
such wholesale distributor or bottler, propor- 
tioned to the volume of business of each such 
wholesale distributor or bottler but in no event 
to be less than one thousand dollars ($1,000) or 
to deposit federal, state, county or municipal 
bonds in required amounts, such county or mu- 
nicipal bonds to be approved by the commis- 
sioner of revenue. The commissioner of revenue 
may grant such extension of time for compli- 
ance with this condition as may be found to be 
reasonable. (1933, c. 319, s. 18.) 

§ 3411(20). Payment of tax by retailers.— The 

granting of license by any municipality or county 
under this article to any person to sell at retail 
the beverages enumerated under section 3411(2) 
shall not be a valid hcense for such sale at re- 
tail until such person shall have filed with the 
commissioner of revenue a bond in a surety 
company licensed by the insurance department 
to do business in this state in such sum as the , 

[12 



commissioner of revenue may find to be sufficient 
to cover the tax liability of every such person, 
but in no event to be less than one thousand dol- 
lars ($1,000). The commissioner of revenue may 
waive the requirement of this section for indem- 
nity bond with respect to any such person who 
may file a satisfactory contract or agreement with 
the commissioner of revenue that such person 
will purchase and sell beverages enumerated in 
section 3411(2) only from wholesale distributors 
or bottlers licensed by the commissioner of reve- 
nue under this article who pay the tax under 
section 3411(18) upon all such beverages sold to 
retail dealers in this state. The violation of the 
terms of any such contract or agreement between 
any such retail dealer and the commissioner of 
revenue by the purchase or sale of any of the 
beverages enumerated in section 3411(2) from 
any one other than a licensed wholesale distrib- 
utor or bottler under this article shall automati- 
cally cancel the license of any such retail dealer 
and shall be prima facie evidence of intent to 
defraud, and any person guilty of violation of 
anjr such contract or agreement shall be guilty 
of a misdemeanor. (1933, c. 319, s. 19.) 

§ 3411(21). Books, records, reports. — Every 
person licensed under any of the provisions of 
this article shall keep accurate records of pur- 
chase and sale of all beverages taxable under 
this article, such records to be kept separate 
from all purchases and sales of merchandise tax- 
able under this article, including a separate file 
and record of all invoices. The commissioner of 
revenue or any authorized agent, shall at any 
time during business hours have access to such 
records. The commissioner of revenue may al- 
so require regular or special reports to be made 
by every such person, at such times and in such 
form as the commissioner may require. (1933, 
c. 319, s. 20.) 

§ 3411(22). No sales upon school or college 
grounds. — No license shall be issued for the sale 
of beverages enumerated in section 3411(2) upon 
the campus of property of any public or private 
school or college in this state. (1933, c. 319, s. 
21.) 

§ 3411(23). License shall be posted. — Each 
form of license required by this article shall be 
kept posted in a conspicuous place at each place 
where the business taxable under this article is 
carried on, and a separate license shall be re- 
quired for each place of business. (1933, c. 319, 
s. 22.) 

§ 3411(24). Administrative provisions. — The 

commissioner of revenue and the authorized 
agents of the state department of revenue shall 
have and exercise all the rights, duties, powers 
and responsibilities in enforcing this article that 
are enumerated in the act of the general assembly 
known as the revenue act in administering taxes 
levied in schedule B of said act, codified as 
sections 7880(30) et seq. (1933, c. 319, s. 23.) 

§ 3411(25). Enforcement by commissioner of 
revenue of tax provisions; use of stamps, etc. — 

A discretion is herein vested in the commissioner 
of revenue to adopt such general rules and regu- 
lations as the commissioner may find expedient 



§ 3411(26) 



RAILROADS AND OTHEvR CARRIERS 



§ 3467 



for the enforcement of the tax provisions of this 
article, and it is specifically authorized to require 
the use of stamps upon all packages containing 
beverages taxable under this article and evidenc- 
ing the payment of the tax upon every such 
package, and with respect to beverages taxable 
under this article which may be either manufac- 
tured or bottled in this state may require the 
use of crowns to be furnished by the state evi- 
dencing the payment of the tax upon all such 
beverages manufactured and/or bottled in this 
state. The commissioner of revenue is author- 
ized to promulgate rules and regulations govern- 
ing the purchase, sale and distribution of crowns 
with which to seal said bottled drinks within 
this state. Said crowns shall carry design ap- 
proved by the commissioner of revenue, the use 
of which crowns may be evidence of the payment 
of the license taxes provided in this article. The 
commissioner is authorized to purchase and fur- 
nish crowns to manufacturers and/or bottlers at 
the manufacturer's price for such crowns, plus 
all transportation charges to consignee at desti- 
nation, and an additional charge of one cent (ic.) 
per crown, when to be used upon bottled drinks 
taxable under this article and in bottles contain- 
ing not more than twelve ounces and at a pro- 
portionate rate upon bottles containing more 
than twelve ounces. Such crowns may be sold 
to manufacturers and/or bottlers at a discount of 
four per cent (4%), such discount to apply to 
the tax and not to the manufacturer's price or 
transportation cost. If the commissioner shall 
by regulations require that stamps be used on 
beverages taxable under this article and not man- 
ufactured or bottled in this state, such stamps 
may be sold at the same rate of discount pro- 
vided herein upon the sale of crowns, and either 
crowns or stamps may be sold to licensed bonded 
manufacturers or wholesale distributors payable 
not later than the tenth of the next succeeding 
month. The commissioner of revenue by and 
with the consent and approval of the council of 
state may make arrangements with the state's 
prison to manufacture and distribute the bottle 
crowns authorized under this article, and in the 
event such arrangement is made, only such bot- 
tle crowns as are manufactured by the state peni- 
tentiary shall be used in the bottling of bever- 
ages sold under authority of this article. If ei- 
ther the use of crowns or stamps shall be provided 
for by regulations adopted by the commissioner 
of revenue under authority of this article, such 
regulations as to crowns shall have application 
to all beverages taxable under this article that 
may be manufactured and/or bottled in this 
state, and such regulations as to the use of stamps 
shall have application to all beverages taxable 
under this article that may be sold in this state 
and not manufactured or bottled in this state, 
and any violation of such regulations shall con- 
stitute a violation of this article and be punishable 
as other violations of this article. 

In any case where license taxes have been 
collected in rates in excess of the rates pro- 
vided in this act the commissioner of revenue 
is authorized and directed to refund so much 
of license taxes as are in excess of the rates pro- 
vided in this article. (1933, c. 558, ss. 3, 5.) 



§ 3411(26). Appropriation of 3% of revenue 
for administration. — For the efficient administra- 
tion of this article an appropriation is hereby 
made for the use of the department of revenue 
in addition to the appropriation in the appropria- 
tion bill of a sum equal to three per cent (3%) 
of the total revenue collections under this article 
to be expended under allotments made by the 
budget bureau of such part or the whole of such 
appropriation as may be found necessary for 
the administration of this article. The budget 
bureau may estimate the yield of revenue under 
this article and make advance apportionment 
based upon such estimate, and to provide for the 
necessary expense of providing materials, sup- 
plies, and other expenses needful to be incurred 
prior to the beginning of the next fiscal year, 
July 1, 1933, the budget bureau may make such 
advance allotment from such estimate of reve- 
nue yield as it may find proper for the conven- 
ient and efficient administration of this article. 
(1933, c. 319, s. 24.) 

§ 3411(27). Violation of cited act made misde- 
meanor. — Whosoever violates any of the provi- 
sions of this article, or any of the rules and regu- 
lations promulgated pursuant thereto, shall be 
guilty of a misdemeanor, and upon conviction 
thereof, be punished by a fine or by imprison- 
ment, or by both fine and imprisonment, in the 
discretion of the court. If any licensee is con- 
victed of the violation of the provisions of this 
article, or any of the rules and regulations pro- 
mulgated pursuant thereto, the court shall im- 
mediately declare his permit revoked, and notify 
the county commissioners accordingly, and no 
permit shall thereafter be granted to him within 
a period of three years thereafter. Any licensee 
who shall sell or permit the sale on his premises 
or in connection with his business, or otherwise, 
of any alcoholic beverages not authorized under 
the terms of this article, unless otherwise per- 
mitted by law, shall, upon conviction thereof, 
forfeit his license in addition to any punishment 
imposed by law for such offense. (1933, c. 319, 
s. 25.) 

§ 3411(28). Conflicting laws repealed. — All 

laws and clauses of laws in conflict with this 
article, and including the provisions of sections 
3411('dd)-3411(kk), of this code if any are in 
conflict, are hereby repealed. (1933, c. 319, s. 
27.) 



CHAPTER 67 

RAILROADS AND OTHER CARRIERS 

Art. 7. Liability of Railroads for Injuries to 

Employees 
§ 3465. Fellow-servant rule abrogated, defec- 
tive machinery. 

Cross Reference. — As to logging roads and tramroads see 
§ 3470 and notes thereto. 

I. EDITOR'S NOTE. 

The act applies only to employees who are engaged in 
duties connected with or incidental to the operation of 
railroads, logging roads or tramroads. Gurganous v. Camp 
Mfg. Co., 204 N. C. 525, 16S S. E. 833. 

§ 3467. Contributory negligence no bar, but 
mitigates damages. 

The section applies only to employees who are engaged 



[ 128 



§ 3468 



ROADS AND HIGHWAYS 



§ 3838(b) 



in duties connected with or incidenteJ to the operation of 
railroads, logging roads or tramroads. Gurganous v. Camp 
Mfg. Co., 204 N. C. 525, 168 S. E. 833. 

Applied in Byers v. Boice Hardwood Co., 201 N. C. 75, 
159 S. E. 3; Bateman v. Brooks, 204 S. C. 176, 167 S. K. 
627. 

§ 3468. Assumption of risk as defense. 

AppUed in Bateman v. Brooks, 204 N. C. 176, 167 S. E. 
627. 

§ 3470. Provisions of this article applicable to 
logging roads and tramroads. 

Editor's Note. — 

The provisions of §§ 3467, 3465, are applicable to tram 
or logging roads under the provisions of this section. 
Sampson v. Jackson Bros. Co., 303 N. C. 413, 166 S. E. 181. 

The employee must be engaged in duties connected with 
or incidental to the operation of such roads. Gurganous 
V. Camp Mfg. Co., 204 N. C. 525, 168 S. E. 833. 

Applied in Bateman v. Brooks, 204 N. C. 176, 167 S. E. 
627. 

Art. 8. Construction and Operation of Railroads 

§ 3481. Operation of fast mail trains; discon- 
tinuance of passenger service. — The corporation 
commission is hereby empowered, whenever it 
shall appear wise and proper to do so, to author- 
ize any railroad company to run one or more 
fast mail trains over its road, which shall stop 
only at such stations on the line of the road as 
may be designated by the company: Provided, 
that in addition to such fast mail train such rail- 
road company shall run at least one passenger 
train in each direction over its road on every day 
except Sunday, which shall stop at every station 
on the road at which passengers may wish to be 
taken up or put off: Provided further, that noth- 
ing in this section shall be construed as prevent- 
ing the running of local passenger trains on Sun- 
day. The corporation commission, or its suc- 
cessor, however, shall have and it is hereby 
vested with the power in any case in which the 
convenience and necessity of the traveling pub- 
lic do not require the running of passenger trains 
upon its railroad to authorize such railroad com- 
pany to cease the operation of passenger trains 
as long as the convenience and necessity of the 
traveling public shall not require such opera- 
tion: Provided that this section and any ruling 
hereafter made by the corporation commission, 
or its successors, shall not be construed as abro- 
gating or repealing the provisions of any char- 
ter or franchise requiring such common carrier 
to furnish daily freight service over its lines, nor 
cause the discontinuance of daily freight service 
where now maintained. (Rev., s. 2614; 1893, c. 
97; 1933, c. 528.) 

Editor's Note.— Public Laws 1933, c. 528, added the last 
sentence of this section relating to discontinuance of pas- 
senger service. 

Art. 9. Railroad Police 

§ 3484. Governor may appoint and commis- 
sion railroad police; civU liability of railroads. — 

Any corporation operating a railroad on which 
steam or electricity is used as the motive power 
or any electric or water-power company or con- 
struction company or manufacturing company 
may apply to the governor to commission such 
persons as the corporation or company may des- 
ignate to act as policemen for it. The governor 
upon such application may appoint such persons 
or so many of them as he may deem proper to 



be such policemen, and shall issue to the per- 
sons so appointed a commission to act as such 
policemen. Nothing contained in the provisions 
of this section shall have the effect to relieve any 
such railroad company from any civil liability 
now existing by statute or under the common 
law for the act or acts of such policemen, in ex- 
ercising or attempting to exercise the powers 
conferred by this section. (Rev., ss. 2605, 2606; 
Code, ss. 1988, 1989; 1871-2, c. 138, ss. 51, 52; 
1907, c. 128, s. 1; 1923, c. 23; 1933, c. 61.) 

Editor's Note. — 

Pubhc Laws 1933, c. 61, added the last sentence of this 
section providing that it shall not delete the railway fro.Ti 
civil liability. 

Art. 11. Carriage of Freight 
§ 3522. Placing cars for loading. 

Cited in Pinehurst Peach Co. v. Norfolk Southern R. Co., 
201 N. C. 176, 159 S. E. 359. 

Art. 12. Street and Interurban Railways 

§ 3539(a). Sections 3536-3539, extended to 
motor busses used as common carriers. — The pro- 
visions of sections 2536-3539 are hereby extended 
to motor busses operated in the urban, interurban 
or suburban transportation of passengers for hire, 
and to the operator or operators thereof, and the 
agents, servants, and employees of such operators. 
(1933, c. 489.) 



CHAPTER 68 

REGISTER OF DEEDS 
Art. 2. The Duties 

§ 3561. Index and cross-index of registered in- 
struments. 

As to registration of instruments see § 3553 and the note 
thereto. 

Liability for Failure to Index. — See Watkins v. Simonds, 
203 N. C. 746, 164 S. E. 363, following statement under 
this catchline in code of 1931. 

Priority of Second Mortgage to One Not Indexed. — 

Under this and the previous section a duly recorded 
chattel mortgage which is ■ indexed and cross-indexed in 
the general chattel mortgage index has priority over a 
mortgage covering the same personal property and also 
certain real estate which is previously executed and re- 
corded and indexed in the general real estate mortgage in- 
dex but subsequently indexed and cross-indexed in the 
general chattel mortgage index. Pruitt v. Parker, 201 N. 
C. 696, 161 S. E. 212. 



CHAPTER 70 

ROADS AND HIGHWAYS 

Art. 13. Cartways, Church Roads, and the Like 

§ 3836. Cartways, tramways, etc., laid out; pro- 
cedure. 

Tract Devised without Egress to Public Read. — -Where a 
petition for a "way of necessity" over the lands of another 
is filed in the Superior Court, and the petition alleges 
that the petitioner was devised a tract of land without any 
way of egress to a public road except over the land of an- 
other devisee of the testator, and there is no allegation 
that such a way over the land of the other devisee had 
theretofore existed, and there is no stipulation in the de- 
vise for a way of ingress and egress to a given point, the 
petitioner's exclusive remedy is under the provisions of 
this and the previous s-ection, and the proceedings in the 
Superior Court is properly nonsuited. White v. Coghill, 
201 N. C. 421, 160 S. E. 472. 

§ 3838(b). Neighborhood public roads. — All 

those portions of the public road system of the 



N. C. Supp.— 9 



[129] 



§ 3846(f) 



ROADS AND HIGHWAYS 



§ 3846(j) 



state which have not been taken over and placed 
under maintenance or which have been aban- 
doned by the state highway commission, but 
which remain open and in general used by the 
public, and all those roads that have been laid 
out, constructed, or reconstructed with unem- 
ployment relief funds under the supervision of 
the department of public welfare, are hereby de- 
clared to be neighborhood public roads, and they 
shall be subject to all of the provisions of this 
section with respect to the alteration, extension, 
or discontinuance thereof, and any interested 
citizen is authorized to institute such proceeding, 
and in lieu of personal service with respect to 
this class of roads, notice by publication once a 
week in any newspaper published in said county, 
or in the event there is no such newspaper, by 
posting at the courthouse door and three other 
public places, shall be deemed sufficient. Upon 
request of the board of county commissioners of 
any county, the state highway commission is 
permitted, but is not required, to lend assistance 
to the local authorities in placing such roads in 
a passable condition without incorporating the 
same into the state or county systems, and with- 
out becoming obligated in any manner for the 
permanent maintenance thereof. (1933, c. 302.) 

Art. 15. State Highway System (1921) 

Part 2. State Highway Commission 

§ 3846(f): Repealed by Public Laws 1933, c. 
172, s. 15. 

§ 3846 (fl). Limit of compensation paid by 
commission. — It shall be unlawful for the state 
highway commission to pay or authorize the 
payment of an annual salary or compensation 
to any employee of that department in excess of 
the sum of six thousand dollars ($6,000.00). 
(1929, c. 182, s. 1; 1933, c. 172, s. 16.) 

Editor's Note.— Public Laws of 1933, c. 172, reduced the 
maximum salary from $10,000 to $6,000. 

§ 3846 (j). Powers of commission. — The said 
state highway commission shall be vested with 
the following powers; 

(a) The general supervision over all matters 
relating to the construction of the state highways, 
letting of contracts therefor, and the selection of 
materials to be used in the construction of state 
highways under the authority of this article. 

(b) To take over and assume exclusive con- 
trol for the benefit of the state of any existing 
county or township roads, and to locate and ac- 
quire rights of way for any new roads that may 
be necessary for a state highway system, with 
full power to widen, relocate, change or alter the 
grade or location thereof: to change or relocate 
any existing roads that the state highway com- 
mission may now own or may acquire; to acquire 
by gift, purchase, or otherwise, any road or high- 
way, or tract of land or other property whatso- 
ever that may be necessary for a state highway 
system: Provided, that nothing in this article 
shall be construed to authorize or permit the 
highway commission to allow or pay anything to 
any county, township, city or town, or to any 
board of commissioners or governing body there- 
of, for any existing road or part of any road 
heretofore contructed by any such county, town- 



ship, city or town, unless contract has already 
ber,n entered into with the state highway com- 
mission. 

(c) To provide for such road materials as may 
be necessary to carry on the work of the state 
highway commission, either by gift, purchase, or 
condemnation: Provided, that when any person, 
firm or corporation owning a deposit of sand, 
gravel or other material, necessary for the con- 
struction of the system of state highways pro- 
vided herein, upon first entering into a contract 
to furnish the state highway commission any of 
such material, at a price to be fixed by said high- 
way commission, the state highway commission 
shall have the right to condemn the necessary 
right of way under the provisions of chapter 
thirty-three, consolidated statutes, to connect 
said deposit with any part of the system of state 
highways or public carrier. 

(d) To enforce by mandamus or other proper 
legal remedies all legal rights or causes of action 
of the state highway commission with other pub- 
lic bodies, corporations, or persons. 

(e) To make rules, regulations and ordinances 
for the use of, and the police traffic on, the state 
highways, and to prevent their abuse by individ- 
uals, corporations and public corporations, by 
trucks, tractors, trailers or other heavy or de- 
structive vehicles or machinery, or by any other 
means whatsoever, and to provide ample means 
for the enforcement of same; and the violation of 
any of the rules, regulations or ordinances so. 
prescribed by the state highway commission 
shall constitute a misdemeanor: Provided, na 
rules, regulations or ordinances shall be made 
that will conflict with any statute now in force 
or any ordinance of incorporated cities or towns. 

(f) To establish a traffic census to secure in- 
formation about the relative use, cost, value, im- 
portance, and necessity of roads forming a part, 
of the state highway system, which information 
shall be a part of the public records of the state,, 
and upon which information the state highway 
commission shall, after due deliberation and in. 
accordance with these established facts, proceed 
to order the construction of the particular high- 
way or highways. 

(g) To assume full and exclusive responsibil- 
ity for the maintenance of all roads other than 
streets in towns and cities, forming a part of the 
state highway system from date of acquiring said 
roads: Provided, the commission may enter into 
contracts with counties as to the maintenance of 
highways which shall form a part of the state 
highway system. The state highway commission, 
shall have authority to maintain all streets con-- 
structed by the state highway commission in- 
towns of less than three thousand population by 
the last census, and such other streets as may be 
constructed in towns and cities at the expense of 
the state highway commission, whenever in the 
opinion of the state highway commission it is , 
necessary and proper so to do. 

(h) To give suitable names to state highways . 
and change the names of any highways that shall 
become a part of the state system of highways. 

(i) To cooperate with municipal or county 
authorities, civic bodies and individuals in the 
proper selection, planting and protection of road-- 



[130] 



§ 3846(j) 



ROADS AND HIGHWAYS 



§ 3846(j) 



side trees, shrubs and vines for the beautification 
and protection of said highways. 

(j) To make proper and reasonable rules, 
regulations and ordinances for the placing or 
erection of telephone, telegraph or other poles, 
sign-boards, fences, gas, water, sewerage, oil, or 
other pipe lines, and other similar obstructions 
that may, in the opinion of said highway com- 
mission, contribute to the hazard upon any of 
the said highways or in anywise interfere with 
the same, and to make reasonable rules and reg- 
ulations for the proper control thereof. And 
whenever the order of the said highway com- 
mission shall require the removal of, or changes 
in, the location of telephone, telegraph, or other 
poles, sign-boards, fences, gas, water, sewerage, 
oil, or other pipe lines, or other similar obstruc- 
tions, the owners thereof shall at their own ex- 
pense move or change the same to conform to the 
order of the said highway commission. Any vio- 
lation of such rules and regulations or non-com- 
pliance with such orders shall constitute a mis- 
demeanor. 

(k) To regulate, abandon and close to use, 
grade crossings on any road designated as part 
of the state highway system, and whenever a 
public highway has been designated as part of 
the state highway system and the state highway 
commission, in order to avoid a grade crossing 
or crossings with a railroad or railroads, con- 
tinues or constructs the said road on one side of 
the railroad or railroads, the commission shall 
have power to abandon and close to use such 
grade crossings; and whenever an underpass or 
overhead bridge is substituted for a grade cross- 
ing, the commission shall have power to close 
to use and abandon such grade crossing and any 
other crossings adjacent thereto. 

(1) The said state highway commission shall 
have such powers as are necessary to comply 
fully with the provisions of the present or future 
federal aid acts. The said commission is hereby 
authorized to enter into all contracts and agree- 
ments with the United States government relat- 
ing to the survey, construction, improvement 
and maintenance of roads under the provisions 
of the present or future congressional enactments, 
to submit such scheme or program of construc- 
tion or improvement and maintenance as may be 
required by the secretary of agriculture or other- 
wise provided by federal acts, and to do all other 
things necessary to carry out fully the coopera- 
tion contemplated and provided for by present 
or future acts of congress, for the construction 
or improvement and maintenance of rural post 
roads. The good faith and credit of the state are 
further hereby pledged to make available funds 
necessary to meet the requirements of the acts 
of congress, present or future, appropriating 
money to construct and improve rural post roads 
and apportioned to this state during each of the 
years for which federal funds are now or may 
hereafter be apportioned by the said act or acts, 
to maintain the roads constructed or improved 
with the aid of funds so appropriated and to 
make adequate provisions for carrying out such 
construction and maintenance. The good faith 
and credit of the state are further pledged to 

[1 



maintain such roads now built with federal aid 
and hereafter to be built and to make adecjuate 
provisions for carrying out such maintenance. 
Upon request of the state highway commission 
and in order to enable it to meet the require- 
ments of acts of congress with respect to federal 
aid funds apportioned to the state of North Caro- 
lina, the state treasurer be and he is hereby au- 
thorized, with the approval of the governor and 
council of state, to issue short term notes from 
time to time, and in anticipation of state high- 
way revenue, and to be payable out of state 
highway revenue for such sums as may be nec- 
essary to enable the state highway commission 
to meet the requirements of said federal aid ap- 
propriations, but in no event shall the outstand- 
ing notes under the provisions of this section 
amount to more than two million dollars ($2,000,- 
000.00). 

(m) The state highway commission is au- 
thorized and empowered to construct and main- 
tain all walkways and driveways within the- 
Mansion Square in the city of Raleigh including 
the approaches connecting with the city streets, 
and any funds expended therefor shall be a charge 
against general maintenance. 

(n) The state highway commission shall have 
authority to provide roads for the connection 
of air ports in the state with the public high- 
way system, and to mark the highways and erect 
signals along the same for the guidance and pro- 
tection of aircraft. 

fo) The state highway commission shall have 
authority to provide facilities for the use of 
water-borne traffic by establishing connections 
between the highway sj^stem and the navigable 
waters of the state by means of connecting roads 
and piers. 

(p) The state highway commission shall have 
authority to designate any highways upon the 
state system as "light traffic roads" when, in 
the opinion of the state highway commission, 
such roads are inadequate to carry and will be 
injuriously affected by the maximum legal traffic 
loads; and all such roads so designated shall be 
conspicuously posted as "light traffic roads" and 
shall be so shown by appropriate designation 
upon the official maps published by the state 
highway commission; and the maximum load 
limits allowed by law for highways in this state 
shall, as to such light traffic roads, be reduced 
to the extent of twenty per cent: Provided, that 
no standard concrete highway or other highway 
built of material of equivalent durability shall 
be designated as a light traffic road. (1931, c. 
2, s. 10; 1923, c. 160, s. 1; 1923, c. 247; 1929, 
c. 138, s. 1; 1931, c. 145, ss. 21, 25; 1933, c. 517, 
s. 1.) 

Editor's Note. — 

Public Laws of 1933, c. 517, added the last sentence of 
this section, relating: to designation of light traffic roads. 
Where the State Highway Commission has taken over 
the construction of a street and bridge within the incorpo- 
rated limits of a town, the town is not thereby relieved of 

liability for an injury proximately caused by a dangerous 
condition of the street at the bridge when the town has 

had implied notice of such condition which had existed for 
several months, this section expressly excepting from its 

provisions streets in towns and cities. Pickett v. Carolina, 
etc., Ry., 200 N. C. 750, 158 S. E. 398. 

31] 



§ 3846(ff) 



SALARIES AND FEES 



§ 3857(a) 



Part 4. County, City and Town Roads 

§ 3846(ff). Connection of highway with im- 
proved streets; pipe lines and conduits; cost. 

TTiis section applies only where the width of the street 
and the regular highway are the same. Sechriest v. Thomas - 
ville, 202 N. C. 108, 162 S. E. 212. 

Art. 18. State Highway Patrol 

§ 3846 (hhh). State highway patrol transferred 
•to revenue department. — The state highway pa- 
trol and all its books, office records, office, mo- 
tors and all other equipment created by the acts 
■of 1929, chapter 218, and as amended by the acts 
•of 1931, chapter 381 codified as sections 3846(yy)- 
^846(ggg), shall be and the same is hereby trans- 
iferred from the highway department to the de- 
partment of revenue and from and after the first 
day of April, 1933, the aforesaid state highway 
patrol shall be under the direction and control of 
the department of revenue and subject to such or- 
ders, rules and regulations as may be adopted and 
put in force by the commissioner of revenue, and 
shall be required to perform other and additional 
duties as may be required of it by the commis- 
sioner of revenue in connection with the work of 
the motor vehicle bureau of this department. 
Said patrol shall also be required to perform such 
other and additional duties as may be required of 
it from time to time by the governor. The funds 
necessary to carry out the provisions of this sec- 
tion shall be appropriated to the department of 
revenue from the highway fund. Whenever, in 
said acts, the highway commission appears, the 
same shall be stricken out and in lieu thereof shall 
be inserted "the commissioner of revenue." 
(1933, c. 214, ss. 1, 2.) 

§ 3846(iii). Additional duties. — In addition to 
the duties prescribed by the Acts of 1929, codified 
as sections 3846(yy)-3846(ggg), required to be per- 
formed by the highway patrol, the said highway 
patrol shall from time to time make an inspection 
of the illuminating oils, gasoline, naphtha, ben- 
zine, other petroleum products and other like liq- 
uid fluids used for the purpose of generating 
power in internal combustion engines for propul- 
sion of motor vehicles and under such rules and 
regulations as may be adopted by the department 
of revenue; to collect samples of such oils, gaso- 
line and other petroleum products as are offered 
for sale in this state and to transmit the same un- 
der such regulations as may be prescribed there- 
for by the commissioner of revenue to the depart- 
ment of agriculture in the city of Raleigh for 
analysis, and otherwise to do and perform all du- 
ties of inspection now required by law to be made 
of such illuminating oils, gasoline, and other pe- 
troleum products. (1933, c. 214, s. 3.) 

§ 3846(jjj). Deputy inspectors of weights and 
measures. — The aforesaid highway patrol, or such 
members thereof as have the necessary qualifica- 
tions and so designated by the commissioner of 
revenue, shall act in the capacity of, and perform 
such duties as required of, deputy inspectors of 
weights and measures as defined in chapter 261, 
public laws 1927 [sections 8064(k)-8064(l)], and 
their activities shall be governed by the same su- 
pervision, rules and regulations as set forth in 
said chapter 261, public laws 1927, relating to dep- 



uty or local inspectors: Provided, however, that 
the appointment, employment and/or assignment 
of said highway patrolman shall be made by the 
commissioner of revenue. (1933, c. 214, s. 4.) 

§ 3846 (kkk). Inspection of pumps, etc. — The 

activities of the highway patrol as mentioned in 
this section shall relate to the inspection of meas- 
uring pumps, measures, containers, devices and 
apparatus used in measuring and/or dispensing 
to the public gasoline, lubricating oil and illumi- 
nating oil and other petroleum products. (1933, 
c. 214, s. 5.) 

§ 3846(111). Analysis by commissioner of ag- 
riculture. — The commissioner of agriculture shall 
from time to time, as samples may be transmitted 
to him for analysis, provide for the analysis and 
examination of such samples as may be trans- 
mitted to him by the department of revenue or 
others under its direction in the laboratory now 
provided for such analysis, and shall cause to be 
promptly reported to the commissioner of reve- 
nue the results of such analysis. (1933, c. 214, 
s. 6.) 

Art. 19. Management of County Roads Vested in 
State Highway Commission 

§ 3846(2). Allocation of State Highway fimds 
for use in counties. 

Where the complaint in an action on the bond given 
by a contractor for construction of a highway alleges that 
a statement of the claim against the surety on the bond 
was filed with the defendant surety company within six 
months after the project was completed, it is a sufficient 
allegation of compliance with the provisions of this sec- 
tion. Bank of Wadeboro v. Northwestern Casaulty, etc., 
Co., 203 N. C. 148, 162 S. E. 236. 

Art. 20. District Prison Camps and Working 
Prisoners on Roads 

§ 3846(25). Minimum term for commitment. — 

No person shall be committed to any of the dis- 
trict camps by any court in this state, nor shall 
any person be received into the district camps, 
whose term of imprisonment is less than thirty 
(30) days: Provided, that in criminal actions in 
which a justice of peace has final jurisdiction no 
county shall be liable for or taxed with any costs. 
(1931, c. 145, s. 32; 1933, c. 39.) 

Editor's Note. — The sentence specified in this section 
was reduced from sixty to thirty days by Public Laws 
1933, c. 39. 



CHAPTER 71 

SALARIES AND FEES 
Art. 2. Legislative Department 

§ 3857(a). Compensation of employees of gen- 
eral assembly; mileage. — The principal clerks of 
the general assembly and chief clerk appointed 
by secretary of state in the enrolling office and 
chief engrossing clerks of the house and senate 
shall be allowed the sum of six dollars per day 
during the session of the general assembly, and 
mileage at the rate of five cents per mile from 
their homes to Raleigh and return. The secre- 
tary to the speaker of the house of representa- 
tives, the secretary to the lieutenant governor, 
the sergeant-at-arms, the assistants to the en- 
grossing clerks, the assistant clerks to the princi- 



[ 132 



§ a857(b) 



SALARIES AND FEES 



§ 3893 



pal clerks, and the assistant sergeant-at-arms of 
the general assembly, and the assistants appointed 
by the secretary of state to supervise the enroll- 
ing of bills and resolutions, the reading clerks of 
the general assembly shall receive the sum of five 
dollars per day, and mileage at the rate of five 
cents per mile from their homes to Raleigh and 
return. The clerks to all committees which by 
the rules of either house of the general assembly 
are entitled to clerks, shall receive four dollars 
per day during the session of the general assem- 
bly, and mileage at the rate of five cents per mile 
from their homes to Raleigh and return. The 
chief page of the house of representatives and 
senate shall receive three dollars and fifty cents 
per day during the session of the general assem- 
bly and mileage at the rate of five cents per mile 
from their homes to Raleigh and return. All 
other pages authorized by either of the two 
houses shall receive two dollars and one-half per 
day during the session of the general assembly 
and mileage at the rate of five cents per mile 
from their homes to Raleigh and return. All la- 
borers of the first class authorized by law or the 
rules of either the house of representatives or the 
senate shall receive three dollars per day during 
the session of the general assembly and all mile- 
age at the rate of five cents per mile from their 
homes to Raleigh and return, and laborers of the 
second class the sum of two dollars per day and 
mileage at the rate of five cents per mile from their 
homes to Raleigh and return. (1925, c. 72, s. 1; 
1929, c. 3, s. l; 1933, c. 6, s. 1.) 

Editor's Note.— Public Laws 1933, c. 6, substituted the 
above section for the former reading. A comparison of 
the two sections is necessary to determine the changes. 

§ 3857(b). Laws repealed; exceptions. — All laws, 
and clauses of laws, parts of laws, rules or regu- 
lations of either house of representatives or sen- 
ate other than sections 3855 and 3855(a) in con- 
flict with sections 3857(a), are hereby repealed and 
declared null and void. (1925, c. 72, s. 2; 1929, c. 
3, s. 2; 1933, c. 6, s. 2.) 

Editor's Note. — This section was re-enacted by Public 
Laws 1933, c. 6, without change. 

Art. 3. Executive Department 

§ 3878. Presidential electors. — Presidential elec- 
tors shall receive, for their attendance at the meet- 
ing of said electors in the city of Raleigh, the sum 
of $10.00 (Ten dollars) per day and traveling ex- 
penses at the rate of 5c (five cents) per mile in 
going to and returning from said meeting. (Rev., 
s. 2761; 1901, c. 89, s. 84; 1933, c. 5.) 

Editor's Note.— Prior to Public Laws 1933, c. 5, this 
section provided for travelling expenses and compensa- 
tion the same as allowed members of the General As- 
sembly. 

Art. 5. Solicitors, Jurors, and Witnesses 

§ 3890. Solicitors; general compensation. — The 

several solicitors of the judicial districts of the 
state of North Carolina shall each receive, as full 
compensation for their services as solicitor, the 
sum of three thousand nine hundred dollars 
($3,900.00) per annum, to be paid in equal monthly 
installments out of the state treasury upon war- 
rants duly drawn thereon, which said salary shall 
be paid in lieu of all fees or other compensation. 



(Rev., s. 2767; Code, s. 3736; 1879, c. 240, s. 12;. 
1923, c. 157, s. 1; 1933, C. 78, S. 1.) 



Editor's Note. — 

Public Laws 1933, 
$4500 to $3900. 



c. 78, reduced the sum a! 



ed frorrr 



§ 3890(a): Repealed by Public Laws 1933, c. 

78, s. 2. 

§ 3893. Fees and mileage of witnesses. — The 
fees of witnesses, whether attending at a term of 
court or before the clerk, or a referee, or commis- 
sioner, or arbitrator, shall be such amount per 
day as the board of commissioners of the respec- 
tive counties may fix, to be not less than one dol- 
lar per day and not more than three dollars per 
day, except in the counties of Union, Nash, 
Brunswick, Randolph, Haywood, Polk, Surry, 
Swain, Alleghany, Anson, Graham, Ashe, Dare, 
Alexander, Cleveland, Clay, Transylvania, Har- 
nett, Stanly, Mitchell, Burke, Franklin, Greene, 
Johnston, and Henderson, in which counties the 
fees shall be one dollar per day. They shall also 
receive mileage, to be fixed by the county com- 
missioners of their respective counties, at a rate 
not to exceed five cents per mile for every mile 
necessarily traveled from their respective homes 
in going to and returning from the place of ex- 
amination by the ordinary route, and ferriage and 
toll paid in going and returning. If attending 
out of their counties, they shall receive one dol- 
lar per day and five cents per mile going and re- 
turning by the ordinary route, and toll and fer- 
riage expenses: Provided, that witnesses before 
courts of justices of the peace shall receive fifty 
cents per day in civil cases, and in criminal ac- 
tions of which justices of the peace have final 
jurisdiction, witnesses attending the courts of 
justices of the peace, under subpoena, shall re- 
ceive fifty cents per day, and in hearings before 
coroners witnesses shall receive fifty cents per 
day and no mileage; but the party cast shall not 
pay for more than two witnesses subpcenaed to 
prove any one material fact and no prosecutor 
or complainant shall pay any costs, unless the 
justice shall find that the prosecution was mali- 
cious and frivolous: Provided further, that ex- 
perts, when compelled to attend and testifj', shall 
be allowed such compensation and mileage as the 
court may in its discretion order. Witnesses at- 
tending before the corporation commission shall 
receive two dollars per day and five cents per 
mile traveled by the nearest practicable route. 
All witnesses subpoenaed to attend courts of jus- 
tices of the peace in Franklin county in the trial 
of civil or criminal cases in any township other 
than their resident townships shall be paid the 
same per diem and mileage that is now paid wit- 
nesses attending the superior courts: Provided 
further, that any sheriff, deputy sherifif, chief of 
police, police, patrolman, state highway patrolman, 
and/or any other law enforcement officer who re- 
ceives a salary or compensation for his services 
from any source or sources other than the collec- 
tion of fees, shall prove no attendance, and shall 
receive no fee as a witness for attending at any 
superior or inferior criminal court sitting within 
the territorial boundaries in which such officer 
has authority to make an arrest. (Rev., s. 2803; 
Code, ss. 2860, 3756; 1891, c. 147; 1905, cc. 279, 



[133] 



§ 3903 



SALARIES AND FEES 



§ 3907 



522; P. L. 1911, c. 402; Ex. Sess. 1920, c. 61, ss. 
2, 3; 1921, c. 62, s. 2; 1933, c. 40.) 

Editor's Note. — 

Public Laws 1933, c. 40, added the proviso, at the end 
of this section, abolishing witness fees for police officers 
on salaries. Public Laws 1933, c. 495 amends the prior 
1933 amendment by providing that the act "shall not ap- 
ply to officers who, under contract of employment, re- 
ceive as part of their compensation fees allowed by law," 
but limits the application of this second amendment to 
Rutherford, Folic, McDowell, Cleveland and Henderson 
counties. 

The amount to be paid an expert witness testifying at a 
hearing before a commissioner of the industrial commis- 
sion in proceedings before him under the Workmen's 
Compensation Act is a question to be determined in the 
discretion of the court and the witness may not require 
that it be fixed in advance before testifying as to a ma- 
-terial matter involved in the inquiry. In re Hayes, 200 
OSr. C. 133, 156 S. E. 791. 

Art. 7. County Officers 

§ 3903. Clerk of superior court. 

Editor's Note.— 

For act regulating fees n{ courts and officers in county 
of Harnett, see 1933, c. 75. PubUc Laws 1933, c. 91 re- 
pealed the provision of Public Laws 1929, c. 45 which pro- 
vided for fees in Halifax county. 

§ 3904. Local modifications as to clerk's fees. 

■ — For the probate of a short-form lien bond, or lien 
bond and chattel mortgage combined, the clerk 
shall receive ten cents in the following counties: 
Alamance, Alleghany, Ashe, Beauford, Bladen, 
Brunswick, Buncombe, Burke, Carteret, Caswell, 
Catawba, Chatham, Chowan, Cleveland, Colum- 
bus, Craven, Cumberland, Davie, Duplin, Dur- 



Vance, Warren, Northampton, Wayne and Ber- 
tie counties to charge fees for witness and juror 
tickets issued by them. (1923, c. 92.) 

In Mitchell county, the clerk of superior court 
shall receive double the amount of fees and com- 
missions as provided in section three thousand 
and nine hundred and three of this chapter. 
(1931, c. 53.) 

Editor's Note.— Public Laws 1933, c. 84, inserted Scot- 
land in the list of counties appearing in the first paragraph. 
For act regulating fees of courts and officers in county 
of Hartnett, see 1933, c. 75. 

§ 3904(a). Fees for recording federal crop 
liens and chattel mortgages. — The fee to be 
charged by the clerk of the superior court for the 
probate of a federal crop lien or a federal chattel 
mortgage given to secure a seed and fertilizer loan 
from the United States government or crop pro- 
duction loans, live stock loans, and/or other loans 
made by the regional agriculture credit corpora- 
tion of Raleigh, North Carolina, shall be limited 
to twenty-five cents for each probate; and the 
fee of the register of deeds for registering said 
instrument shall be limited to fifty cents for each 
lien or chattel mortgage: Provided that this sec- 
tion shall not apply to Brunswick, Caswell, Har- 
nett, Haywood, Hertford, Jackson, Johnston, 
Macon, Moore, Person, Polk, Richmond, Stokes, 
Surry and Wilson counties. (1933, cc. 160, 176, 
266, 281, 326, 393, 429, 479, 514.) 

§ 3904(b). Fees for issuing certificates of en- 



ham, Edgecombe, Forsyth, Gaston, Gates, Gran- cumbrances. — The fee charged by the register of 



ville, Greene, Harnett, Iredell, Johnston, Jones, 
Lenoir, Lincoln, Martin, McDowell, Mecklenburg, 
Moore, Nash, New Hanover, Onslow, Pamlico, 
Pender, Perquimans, Person, Pitt, Polk, Rich- 
mond, Robeson, Rockingham, Rowan, Rutherford, 
Sampson, Scotland, Union, Vance, Warren, Wash- 
ington, Watauga, Wayne, Wilson. (Rev., s. 2773; 
1907, c. 717; 1909, c. 502; 1917, c. 182; 1933, c. 84.) 

In Anson, this fee is twenty cents. (1913, c. 
49.) 

In Bertie county the clerk of the superior 
court shall collect the sum of fifteen cents for 
each crop lien or lien bond probated by him for 
registration in Bertie county, including all serv- 
ices connected therewith. (1915, c. 163.) 

In Forsyth county the clerk shall receive fif- 
teen cents for the probate of a deed or other 
writing, acknowledged by the signers or makers, 
including all except married women who ac- 
knowledge at the same time, with the certificate 
thereof. He shall also receive fifteen cents for 
the probate of a deed or other writing, proved by 
a witness, including the certificate. (1913, c. 
626.) 

In Jackson county, in addition to the fees now 
allowed by law, the clerk shall receive the sum 
of five dollars for writing up the minutes of each 
day's session of the superior court of the county, 
to be paid by the county. (1913, c. 182.) 

In Robeson county the board of county com- 
missioners may make an allowance to the clerk 
of the superior court for keeping the records of 
the courts and transcribing the minutes, to be 
paid out of the general county fund. (Rev., s. 
2773.) 

From and after February 27, 1923, it shall be 



deeds for preparing and issuing a certificate of 
encumbrance as required for federal chattel mort- 
gages and/or crop liens shall be limited to fifty 
(50c) cents for each such certificate. (1933, c. 
437.) 

§ 3907. Local modification as to fees of regis- 
ters of deeds. — The register of deeds shall receive 
for registering short form of lien bond, or lien 
bond and chattel mortgage combined, fifty cents 
in the counties of Davidson, Halifax, Northamp- 
ton, Union, Vance, Warren and Wayne; thirty 
cents in the counties of Alamance, Alleghany, 
Anson, Ashe, Beauford, Bladen, Brunswick, Bun- 
combe, Burke, Carteret, Caswell, Catawba, Cho- 
wan, Craven, Cumberland, Davie, Duplin, Dur- 
ham, Edgecombe, Forsyth, Gaston, Gates, Gran- 
ville, Harnett, Hertford, Jones, Lenoir, Lincoln, 
Martin, McDowell, Moore, New Hanover, Ons- 
low, Pamlico, Pender, Perquimans, Person, Pitt, 
Polk, Richmond, Robeson, Rockingham, Rowan, 
Rutherford, Sampson, Scotland, Washington, Wa- 
tauga and Wilson; twenty cents in the counties 
of Chatham, Columbus, Cleveland, Iredell, Johns- 
ton and Mecklenburg. (Rev., s. 2776; 1907, cc. 
421, 636, 717; 1909, cc. 23, 532; P. L. 1913, c. 49; 
P. L. 1917, c. 182; 1933, c. 48.) 

In Alexander county the board of county com- 
missioners are authorized and empowered to pay 
the register of deeds the sum of one cent each 
per name for indexing births and deaths in said 
county. Likewise in Cleveland county. (P. L. 
1915, c. 513; P. L. 1917, c. 423.) 

In Catawba county the register of deeds shall 
be allowed as a fee for his services for register- 
ing any deed of trust, in which real property is 



unlawful for the clerks of the superior courts of | conveyed to a trustee to secure a loan from a 

[134] 



§ 3908 



SALARIES AND FEES 



§ 3908 



building and loan association, the sum of eighty 
cents. (1909, c. 43.) 

In Forsyth county the register shall receive 
for registering any deed or other writing author- 
ized to be registered with certificate of probate 
or acknowledgment and private examination of 
a married woman, containing not more than 
three copy-sheets, sixty-five cents; and for every 
additional copy-sheet, ten cents: Provided, that 
the registration of any deed of trust shall not 
cost more than one dollar and ten cents, where 
the same does not contain more than four copy- 
sheets, and for every additional copy-sheet, ten 
cents each. (Rev., s. 2776; P. L- 1913, c. 626; P. 
L,. Ex. Sess. 1913, c. 177.) 

In Jackson county the register shall, for his 
service in acting as clerk of the board of com- 
missioners, for recording minutes, and doing 
other clerical work for or under the direction of 
the board of commissioners, receive three dollars 
per day, to be paid by the county. (P. L- 1913, 
c. 182.) 

In Tyrrell county the register shall receive for 
canceling mortgages, deeds of trust or instru- 
ments intended to secure the payment of money, 
fifteen cents. (1909, c. 780.) 

In Union county the county commissioners may 
revise the fees and commissions which may be 
charged by the register of deeds, and may fix all 
such fees and commissions at such amounts and 
rates as in their judgment will give the register 
of deeds and his deputies and assistants reason- 
able compensation. The fees and commissions 
so fixed shall be the legal fees chargeable by and 
payable to the register of deeds. (P. L- 1917, c. 
366.) 

In Gates county the register of deeds shall re- 
ceive for canceling of a mortgage or deed of trust, 
ten cents. (P. L. 1919, c. 4.) 

In Wake county the register of deeds shall 
charge and receive the following fees for regis- 
tration of the papers herein mentioned, to wit: 
For registration lien bond, fifty cents; for regis- 
tering short form of chattel mortgage provided 
for securing a sum not exceeding three hundred 
dollars, thirty cents; for registering short form 
of agricultural lien and chattel mortgage for ad- 
vances, thirty cents; for registering short form of 
crop lien to secure advances and chattel mort- 
gage to secure pre-existing debt, and to give ad- 
ditional security to the lien, thirty cents; for reg- 
istering short-form notes given for the purchase 
price of personal property or combining also a 
conveyance of the property or other additional 
property as security, and retaining title to the 
property sold, twenty cents. (P. L. 1915, c. 138.) 

In Yadkin county the fees for recording chattel 
mortgages, crop liens, conditional sales, etc., shall 
be twenty cents for the first two copy-sheets or 
fraction thereof and ten cents for each additional 
copy-sheet or fraction thereof. (P. L. 1911, c. 
414.) 

Editor's Note. — 

Public Laws of 193J, c. 66, changed the fee for Scotland 
county from fifty cents to thirty cents. 

Public Laws 1933, c. 91 repealed the prevision of Pub- 
lic Laws 1929, c. 45 which provided for fees in Halifax 
county. 

§ 3908. Sheriffs.— Sheriffs shall be allowed the 
following fees and expenses, and no other, namely: 



Executing summons or any other writ or no- 
tice, sixty cents; but the board of county com- 
missioners may fix a less sum than sixty cents, 
but not less than thirty cents, for the service of 
each road order. 

Arrest of a defendant in a civil action and 
taking bail, including attendance to justify, and 
all services connected therewith, one dollar. 

Arrest of a person indicted, including all serv- 
ices connected with the taking and justification 
of bail, one dollar. 

Imprisonment of any person in a civil or crim- 
inal action, thirty cents; and release from prison, 
thirty cents. 

Executing subpoena on a witness, thirty cents. 

Conveying a prisoner to jail to another county, 
five cents per mile. 

For prisoner's guard, if any necessary, and ap- 
proved by the county commissioners, going and 
returning, per mile for each, five cents. 

Expense of guard and all other expenses of con- 
veying prisoner to jail, or from one jail to another 
for any purpose, or to any place of punishment, 
or to appear before a court or justice of the peace 
in another county, or in going to another county 
for a prisoner, to be taxed in the bill of costs and 
allowed by the board of commissioners of the 
county in which the criminal proceedings were in- 
stituted. 

For allotment of widow's year's allowance, one 
dollar. 

In claim and delivery for serving the original 
papers in each case, sixty cents, and for taking 
the property claimed, one dollar, with the actual 
cost of keeping the same until discharged by 
law, to be paid on the affidavit of the returning 
officer. 

For conveying prisoners to the penitentiary, 
two dollars per day and actual necessary ex- 
penses; also one dollar a day and actual neces- 
sary expenses for each guard, not to exceed one 
guard for every three prisoners, as the sheriff 
upon affidavit before the clerk of the superior 
court of his county shall swear to be necessary 
for the safe conveyance of the convicts, to be 
paid by the board of commissioners of the county 
in which the criminal proceedings were instituted. 

Providing prisoners in county jail with suitable 
beds, bed-clothing, other clothing and fuel, and 
keeping the prison and grounds cleanly, whatever 
sum shall be allowed by the commissioners of the 
county. 

Collecting fine and costs from convict, two and 
a half per cent on the amount collected. 

Collecting executions for money in civil ac- 
tions, two and a half per cent on the amount col- 
lected; and the like commissions for all moneys 
which may be paid to the plaintiff by the defend- 
ant while the execution is in the hands of the 
sheriff. 

Advertising a sale of property under execution 
at each public place required, fifteen cents. 

Seizing specific property under order of a court, 
or exceeding any other order of a court or judge, 
not specially provided for, to be allowed by the 
judge or court. 

Taking any bond or undertaking, including 
furnishing the blanks, fifty cents. 

The actual expense of keeping all property 

[ 135] 



§ 3924(b) 



SECURITIES LAW 



§ 3924(b) 



seized under process or order of court, to be al- 
lowed by the court on the affidavit of the officer 
in charge. 

A capital execution, ten dollars, and actual ex- 
pense of burying the body. 

Summoning a grand or petit jury, for each man 
summoned, thirty cents, and ten cents for each 
person summoned on the special venire. 

For serving any writ or other process with the 
aid of the county, the usual fee of one dollar, and 
the expense necessarily incurred thereby, to be 
adjudged by the county commissioners, and taxed 
as other costs. 

All just fees paid to any printer for any ad- 
vertisement required by law to be printed. 

Bringing up a prisoner upon habeas corpus, to 
testify or answer to any court or before any judge, 
one dollar, and all actual and necessary expenses 
for such services, and five cents per mile by the 
route most usually traveled, and all expenses for 
any guard actually employed and necessary. 

For summoning and qualifying appraisers, and 
for performing all duties in laying ofif homesteads 
and personal property exemptions, or either, two 
dollars, to be included in the bill of costs. 

For levying an attachment, one dollar. 

For attendance to qualify jurors to lay ofJ 
■dower, or commissioners to lay off year's allow- 
ance, one dollar; and for attendance, to qualify 
commissioners for any other purpose, seventy-five 
■cents. 

Executing a deed for land or any interest in 
land sold under execution, one dollar, to be paid 
by the purchaser. 

Service of writ of ejectment, one dollar. 

For every execution, either in civil or criminal 
cases, fifty cents. 

Whenever any precept or process shall be di- 
rected to the sheriff of any adjoining county, to 
be served out of his county, such sheriff shall 
have for such service not only the fees allowed 
by law, but a further compensation of five cents 
for every mile of travel going to and returning 
from service of such precept or process: Pro- 
vided, that whenever any execution of five hun- 
dred dollars or upwards shall be directed to the 
sheriff of an adjoining county, under this chap- 
ter, such sheriff shall not be allowed mileage, but 
only the commissions to which he shall be en- 
titled. [Provided, that when the summons in a 
civil action or special proceedings shall be from 
any court of any county other than his own county, 
the sheriff's fees for serving the same shall 
be one dollar ($1) for each defendant named 
therein; and such service shall include the de- 
livery of copy of said summons and complaint or 
petition attached to the original summons; and 
that for subpoenas served from other than the 
county of said sheriff he shall receive a fee of 
fifty cents (50c.) for each witness named therein. 

The part of this section in brackets shall not 
affect fees provided in section three thousand nine 
hundred and nine of the consolidated statutes for 
service upon the waters of the counties of Carte- 
ret, Dare, Hyde, and Pamlico.] For the service 
of summons together with a copy of the com- 
plaint, petition or other pleading, the sheriff shall 
have the fees now prescribed by law in the re- 
spective counties for the service of summons only, 

[1 



and shall not be entitled to an additional fee for 
serving the copy of the pleading unless it is neces- 
sary that it be served separately. (Rev., s. 2777; 
Code, SS. 931, 2035, 2089, 2090, 3752; 1885, c. 262; 
1891, cc. 112, 143; 1903, c. 541; 1901, c. 64; R. C, 
c. 102, s. 21; R. C. c. 31, s. 56; 1822, c. 1132; 1924, 
c. 101; 1925, c. 275, s. 6; 1929, c. 227; 1933, c. 132.) 

Editor's Note. — 

Public Laws of 1933, c. 132, reduced the mileage fee 
for bringing up a prisoner upon habeas corpus from ten 
cents per mile to five cents per mile. For act regulating 
fees of courts and officers in county of Harnett, see 1933, 
c. 75. 



CHAPTER 71A 

SECURITIES LAW 

§ 3924(b). Definitions — When used in this 
act. — • 

(a) The term "commissioner" shall mean the 
member of the corporation commission of North 
Carolina, designated by the governor to adminis- 
ter this act, and the term "commission" shall 
mean the corporation commission of North Caro- 
lina, which is charged with certain duties under 
the terms of this act. 

(b) The term "person" shall mean and include 
a natural person, firm, partnership, association, 
syndicate, joint-stock company, unincorporated 
company or organization, trust incorporated or 
unincorporated and any corporation organized un- 
der the laws of the District of Columbia, or of 
any foreign government. As used herein, the term 
"trust" shall be deemed to include a common law 
trust, but shall not include a trust created or ap- 
pointed under or by virtue of a last will and testa- 
ment or by a court of law or equity. 

(c) The term "securities" or "security" shall 
include any note, stock certificate, stock, treasury 
stock, bond, debenture, evidence of indebtedness, 
transferable certificate of interest or participation, 
certificate of interest in a profit-sharing agreement 
certificate of interest in an oil, gas or mining lease, 
collateral trust certificate, any transferable share, 
investment contract, or beneficial interest in or 
title to property or profits or any contract or 
agreement in the promotion of a plan or scheme 
whereby one party undertakes to purchase the 
increase or production of the other party from 
the article or thing sold under the plan or scheme, 
or whereby one party is to receive the profits 
arising from the increase or production of the 
article or thing sold under the plan or scheme, or 
any other instrument commonly known as secur- 
ity. 

(d) The terra "sale" shall include any agree- 
ment whereby a person transfers or agrees to 
transfer either the ownership of or an interest in 
a security. Any security given or delivered with 
or as a bonus on account of any purchase of securi- 
ties, or of any other thing shall be deemed to con- 
stitute a part of the subject of such purchase and 
to have been sold for value. "Sale," or "sell" shall 
also include an attempt to sell, an option of a pur- 
chase or sale, a solicitation of a sale, a subscrip- 
tion, or an offer to sell, either directly or by 
agent, or by a circular letter, advertisement, or 
otherwise; but nothing herein shall limit or dimin- 
ish the full meaning of the term "sell" or "sale" 
as used by or accepted in courts of law or equity: 

36 ] 



§ 3964 



WILLS 



§ 4131 



Provided, that a privilege pertaining to a security 
giving the holder the privilege to convert such 
security into another security of the same issuer 
shall not be deemed a sale, or offer to sell, or op- 
tion of sale of such other security within the mean- 
ing of this definition and such privilege shall not 
be construed as affecting the status of the security 
to which such privilege pertains with respect to 
exemption or registration under the provisions of 
this act, but when such privilege of conversion 
shall be exercised such conversion shall be subject 
to the limitations hereinafter provided in subsec- 
tion (8) of section 3924(d); and provided further, 
that the issue or transfer of a right pertaining to a 
security entitling the holder to subscribe to an- 
other security of the same issuer, when such right 
is issued or transferred with the security to which 
it pertains, shall not be deemed a sale or offer to 
sell or option of sale of such other security with- 
in the meaning of this definition, and such right 
shall not be construed as affecting the status of 
the security to which such right pertains with re- 
spect to exemption or registration under the pro- 
visions of this act; but the sale of such other se- 
curity upon the exercise of such right shall be 
subject to the provisions of this act. 

(e) The term "issuer" shall include every per- 
son who proposes to issue or who issues or who 
has issued or shall hereafter issue any security 
(sold or to be sold, offered or to be offered for 
sale). 

(f) The term "intangible assets" shall mean 
and include patents, formula, good will, promo- 
tions, trade brands, franchises, evidences of in- 
debtedness or corporate securities, titles or rights 
in and to intangible property, and all other like 
assets. 

(g) "Tangible assets" shall mean all assets 
other than intangible assets, as above defined. 

(h) "Mortgage" shall be deemed to include a 
deed of trust to secure a debt. (1925, c. 190, s. 2; 
1927, c. 149, s. 2; 1933, c. 432.) 

Editor's Note.— 

Public Laws of 1933, c. 432, inserted in subsection (3) 
the provision relating to contracts "whereby one party 
undertakes to purchase an increase or production of the 
party," etc. 



CHAPTER 76 

SURETYSHIP 

§ 3964. Subrogation of surety paying debt of 
deceased principal. 

Applied, in subrogating widow to rights of mortgagee 
where policy in which she is named beneficiary is as- 
signed to and paid to mortgagee, in Russel v. Owen, 203 
N. C. 262, 165 S. E. 687. 



CHAPTER 78 

TRUSTEES 
Art. 1. Investment and Deposit of Trust Funds 

§ 4018(b). Investment in building and loan as- 
sociations. — Guardians, executors, administrators, 
clerks of the superior court and others acting in 
a fiduciary capacity may invest funds in their 
hands as such fiduciaries in stock of any building 
and loan association organized and licensed under 
the laws of this state: Provided, that no such 
funds may be so invested unless and until au- 



thorized by the insurance commissioner. (1933, 
c. 549, s. 1.) 

Art. 3. Resignation of Trustee 
§ 4023. Clerk's power to accept resignations. 

Section Not Extended to Give Jurisdiction. — Tlie equi- 
table jurisdiction of the Superior Courts does not extend 
to the clerks of court unless expressly given by statute, 
and this and following sections giving clerks of court a 
limited power to appoint trustees in certain instances will 
not be extended to give them jurisdiction of any proceed- 
ing unless clearly within the provisions of the statutes. 
In re Smith, 200 N. C. 272, 156 S. E. 494. 

Art. 4. Charitable Trusts 
§ 4033. Trustees to file accounts. 

Trust Estate Is Not Forfeited. — The trustees of a chari- 
table trust who violate the provisions of the trust are sub- 
ject to the procedure prescribed by this section, and where 
the trust is created by will the trust estate is not forfeited 
in favor of a residuary legatee solely upon the ground 
that the moneys derived have been diverted to other uses 
than the testator intended. Humphrey v. Board of Trus- 
tees, 203 N. C. 201, 165 S. E- 547. 

§ 4035(a). Indefiniteness; title in trustee; va- 
cancies. 

Detctils of Administration May Be Left to Trustee. — 

A charity in its legal sense is a gift to be applied con- 
sistently with existing laws for the benefit of an indefinite 
number of persons, and it is the policy of this State, as 
indicated by our statutes, not to declare such gift void 
because created for the benefit of an indefinite class, and 
if the founder describes the general nature of the chari- 
table trust he may leave details of its administration to 
duly appointed trustees. Whitsett v. Clapp, 200 N. C. 
647, 158 S. E. 183. 



CHAPTER 80 

WIDOWS 
Art. 2. Dower 

§ 4100. In what property widow entitled to 
dower. 

IL PROPERTY SUBJECT TO DOWER. 
A. In GenereJ. 

Mortgaged Property. — Under this section where an en- 
tire transaction was in effect an indirect mortgage on the 
property of a father and his children received no consid- 
eration and acquired no beneficial interest in the lands, 
the sole beneficial interest in the lands was in the father, 
and upon his death his widow is entitled to her dower 
rights in the lands. Stack v. Stack, 202 N. C. 461, 163 S. 
E. 589. 

§ 4102. Dower conveyed by wife's joinder in 
deed. 

Dower Need Not Be Sold When Estate Is Solvent— The 

widow may subject her dower to the payment of the debts 
of her husband's estate by joining in his mortgage deed 
or conveyance in conformity to the requirements of this 
section, yet if his estate is solvent the dower need not be 
sold, and in the event that it is insolvent the estate must 
be administered according to the established rules. Holt 
V. Lynch, 201 N. C. 404, 160 S. E. 469. 



Art. 



CHAPTER 81 

WILLS 
1. Execution of Will 



§ 4131. Formal execution. 

II. SIGNING ATTESTATION AND DATE. 
Ncune in Body Sufficient. — 

Under this section a paper-writing in the testator's 
handwriting, dispositive on its face, with the name of 
the testator inserted therein in his own handwriting fol- 
lowed by the words "this being my will" is sufficient in 
form to constitute a holographic will. In re Rowland, 202 
N. C. 373, 162 S. E. 897. 



[137] 



4139 



CRIMES AND PUNISHMENTS 



§ 4183 



Art. 4. Probate of Will 
§ 4139. Executor may apply for probate. 

Citation to those in interest is not necessary to the pro- 
bate of a will in common form, the proceeding being ex 
parte, and when probated the paper- writing is valid and 
operative as a will and may not be attacked collaterally. 
In re Rowland, 202 N. C. i7i, 162 S. E. 897. 

Appointment Is Reviewable. — The power, conferred by 
this section, to appoint administrators or e.xecutors is re- 
viewable to the judge of the Superior Court of the county. 
In re Estate of Wright and Wright v. Ball, 200 N. C. 
620, 158 S. E. 192. 

§ 4140(a). Clerk to notify legatees and devisees 
of probate of wills. — The clerks of the superior 
court of the state are hereby required and di- 
rected to notify by mail, all legatees and devisees 
whose addresses are known, designated in wills 
filed for probate in their respective counties. All 
expense incident to such notification shall be 
deemed a proper charge in the administration of 
the respective estates. (1933, c. 133.) 

§ 4145. Probate conclusive until vacated. 

Cannot Be Collaterally Attacked. — 

A will which has been duly probated in common form 
may not be collaterally attacked even for fraud. Crowell 
V. Bradsher, 203 N. C. 492, 166 S. E- 731. 

§ 4147. Certified copy of vnll proved in another 
state. — When a will, made by a citizen of this 
state, is proved and allowed in some other state 
or country, and the original will cannot be re- 
moved from its place of legal deposit in such 
other state or country, for probate in this state, 
the clerk of the superior court of the county 
where the testator had his last usual residence or 
has any property, upon a duly certified copy or 
exemplification of such will being exhibited to 
him for probate, shall take every order and pro- 
ceeding for proving, allowing and recording such 
copy as by law might be taken upon the produc- 
tion of the original. (Rev., s. 3130; Code, s. 2157; 
C. C. P., s. 445; R. C, c. 44, s. 9; 1803, c. 623.) 

§ 4149. Probate when witnesses are nonresi- 
dent. — Where one or more of the subscribing 
witnesses to the will of a testator, resident in this 
state, reside in another state, or in another county 
in this state than the one in which the will is be- 
ing probated, the examination of such witnesses 
may be had, taken and subscribed in the form of 
an affidavit, before a notary public residing in the 
county and state in which the witnesses reside; 
and the affidavits, so taken and subscribed, shall 
be transmitted by the notary public, under his 
hand and official seal, to the clerk of the court 
'before whom the will has been filed for probate. 
If such affidavits are, upon examination by the 
clerk, found to establish the facts necessary to be 
established before the clerk to authorize the pro- 
bate of the will if the witnesses had appeared be- 
fore him personally, then it shall be the duty of 
the clerk to order the will to probate, and record 
the will with the same effect as if the subscribing 
witnesses had appeared before him in person and 
'been examined under oath. (1917, c. 183; 1933, 
c. 114.) 

Editor's Note. — Public Laws 1933, c. 114, inserted, near the 
beginning of this section, the words "or in another county 
in this state than the one in which the will is. being pro- 
bated." 

Art. 5. Caveat to Will 
§ 4158. When and by whom caveat filed. 

What Propounder Must Prove on Caveat Being Filed. — 

[1 



When an issue of devisavit vel non is raised by caveat, it 
is tried in the Superior Court in term by a jury. Upon such 
trial the propounder carries the burden of proof to estab- 
lish the formal execution of the will. This h-e must do by 
proving the will per testes in solemn form. In re Rowland, 

202 N. C. 373, 375, 162 S. E. 897. 

§ 4161. Caveat suspends proceedings under' wilL 

Effect of Caveat upon Rights and Duties of Representative. 

— In the observance of the mandate to preserve the property 
the executor may operate and manage the property in the 
exercise of that degree of care, diligence and honesty which 
he would exercise in the management of his own property, 
or he may institute a civil action in which all persons hav- 
ing an interest are made parties and request the court in its 
equity jurisdiction to authorize such operation, or he may 
apply to the clerk in his probate jurisdiction for such au- 
thorization. Hardy & Co. v. Turnage, 204 N. C. 538, 168 
S. E. 823. 

Art. 6. Construction of Will 
§ 4162. Devise presumed to be in fee. 

Editor's Note. — 

The common-law rule that a devise without words of per- 
petuity or limitation conveyed a life estate only unless there 
is a manifest intention to convey the fee has been changed 
by this section. Henderson v. Western Carolina Power Co., 
200 N. C. 443, 157 S. E. 425. 

Unrestricted Devise Passes Fee. — 

A devise will be construed to be in fee simple unless an in- 
tention to convey an estate of less dignity is apparent from 
the will, and regard will be had to the natural objects of the 
testator's bounty, and the testator's intention as gathered 
from the whole instrument will be given efifect unless it is 
contrary to some rule of law or public policy. Jolley v. 
Humphries, 204 N. C. 672, 169 S. E. 417. 

Under this section the fee generally passes upon a devise 
of the proceeds of land when an intention to separate the 
income from the principal is not expressed, or where the 
devise is general and the devisee is given the power of dis- 
position, or a limitation over is made of such part as may 
not be disposed of by the first taker. Hambright v. Carroll, 
204 N. C. 496, 168 S. E. 817. 

In construing wills the courts will endeavor to ascertain 
the intent of the testator as expressed in the words used, 
and in cases of doubt resort may be had to the usual canons 
of interpretation, and a devise will be construed to be in fee 
unless it appears from the will that the testator intended to 
convey an estate of less dignity. Bell v. Gillani, 200 N. C. 
411, 157 S. E. 60. 

§ 4164. What property passes by will. 

Where a will is susceptible to two reasonable constructions, 

one disposing of all of the testator's property, and the other 
leaving part of the property undisposed of, the former con- 
struction will be adopted and the latter rejected, there being 
a presumption against partial intestacy. Holmes v. York, 

203 N. C. 709, 166 S. E. 889. 

§ 4166. Lapsed and void devises pass under re- 
siduary clause. 

Whether a clause is a residuary clause is not dependent 
upon any particular form of expression but upon the inten- 
tion of the testator, and where a will provides that after the 
termination of a life estate that the whole estate should be 
reduced to cash and, after payment of certain specific be- 
quests, distributed among a specific class, where the legacy 
of one of the class. lapses by the death of the legatee prior 
to the testator's death, the amount of . such legacy is thrown 
into the fund for distribution among the class named, and it 
does not go to the next of kin of the legatee. Stevenson v. 
Wachovia Bank, etc., Co., 202 N. C. 92, 161 S. E. 728. 



CHAPTER 82 

CRIMES AND PUNISHMENTS 

SUBCHAPTER II. OFFENSES AGAINST 
THE STATE 

Art. 4. Counterfeiting and Issuing Monetary Sub- 
stitutes 
§ 4183. Issuing substitutes for money without 
authority. 

For act permitting the issuance of script in Currituck 
38 ] 



§ 4185(a) 



CRIMES AND PUNISHMENTS 



§ 4221(a) 



county, see Public I<aws 1933, c. 328. For act authorizing is- 
suance of script in Cumberland county, see Acts of 1933, 
c. 33. 

SUBCHAPTER III. OFFENSES AGAINST 
THE ELECTIVE FRANCHISE 

Art. 5. Corrupt Pr'actices at Elections 

§ 4185(a). Intimidation of voters by officers 
made misdemeanor. — It shall be unlawful for any 
person holding any office, position, or employment 
in the state government, or under and with any 
department, institution, bureau, board, commis- 
sion, or other state agency, or under and with any 
county, city, town, district, or other political sub- 
division, directly or indirectly, to discharge, 
threaten to discharge, or cause to be discharged, 
or otherwise intimidate or oppress any other per- 
son in such employment on account of any vote 
such voter or any member of his family may cast, 
or consider or intend to cast, or not to cast, or 
which he may have failed to cast, or to seek or 
undertake to control any vote which any subordi- 
nate of such person may cast, or consider or in- 
tend to cast, or not to cast, by threat, intimida- 
tion, or declaration that the position, salary, or 
any part of the salary of such subordinate de- 
pends in any manner whatsoever, directly or in- 
directly, upon the way in which such subordinate 
or any member of his family casts, or considers 
or intends to cast, or not to cast his vote, at any 
primary or election. Any person violating this 
section shall be guilty of a misdemeanor and 
punished by fine and/or imprisonment, in the 
discretion of the court. (1933, c. 165, s. 25.) 

SUBCHAPTER IV. OFFENSES AGAINST 
THE PERSON 

Art. 7. Homicide 

§ 4200. Murder in the first and second degree 
defined; punishment. 

III. MURDER IN THE FIRST DEGREE. 
Killing in Perpetration of Robbery. — 

Where all the evidence for the State tends to show that 
the defendants killed the deceased while attempting to rob 
him, the crime is murder in the first degree, under this sec- 
tion, and the failure of the trial court to submit the issue of 
guilty of murder in the second degree is not error. State v. 
Donnell, 202 N. C. 782, 164 S. E. 352. 

Where upon a trial for murder all the evidence and in- 
ferences therefrom unquestionably tend to show that the 
■deceased was killed by one lying in wait and for the pur- 
pose of robbery, with evidence tending to establish that the 
defendant had perpetrated the crime, and there is no evi- 
dence in mitigation of the ofifenise, the evidence establishes 
the crime of murder in the first degree under this section, 
and an instruction to -the jury either to convict the defend- 
ant of murder in the first degree, or to aquit him is not error. 
State V. Myers, 202 N. C. 351, 162 S. E. 764. 

Evidence tending to show that defendant killed the de- 
ceased with a deadly weapon while attempting to perpetrate 
a robbery is Siufficient to be submitted to the jury on the 
issue of first degree murder, the credibility ' and probative 
force of the evidence being for the jury. State v. Langley, 
204 N. C. 687. 

Evidence tending to show that the prisoner with another 
entered a store with intent to rob its cash drawer, and shot 
and killed the deceased is of an attempt to commit a felony 
and sufficient to sustain a verdict of murder in the first de- 
gree, as defined by this section, under proper instructions 
from the court thereon upon conflicting evidence. State v. 
Sterling, 200 N. C. 18, 19, 155 S. E. 96. 

§ 4201. Pimishment for manslaughter. — If any 

person shall commit the crime of manslaughter 
he shall be punished by imprisonment in the 



county jail or state prison for not less than four 
months nor more than twenty years: Provided, 
however, that in cases of involuntary manslaugh- 
ter, the punishment shall be in the discretion of 
the court, and the defendant may be fined or im- 
prisoned, or both. (Rev., s. 3632; Code, s. 1055; 
1879, c. 255; R. C, c. 34, s. 24; Hen. VII, c. 13; 
1816, c. 918; 1933, c. 249.) 

Editor's Note.— Public Laws of 1933, c. 249, added the pro- 
viso at the end of this section, relating to involuntary man- 
slaughter. 

Punishment Not Reviewable on Appeal. — The question of 
the imposition of a sentence on the prisoner convicted of 
manslaughter within the maximum and minimum allowed by 
this section, is within the discretion of the trial court and 
is not reviewable on appeal. State v. Fleming, 202 N. C. 
512, 163 S. E. 453. 

Art. 9. Assaults 

§ 4213. Maliciously assaulting in a secret man- 
ner. 

Instruction. — For charge not sufficiently explaining the of- 
fense, see State v. Vanderburg, 200 N. C. 713, 158 S. E. 248. 

§ 4215. Punishment for assault. — In all cases 
of an assault, with or without intent to kill or in- 
jure, the person convicted shall be punished by 
fine or imprisonment, or iboth, at the discretion of 
the court: Provided, that where no deadly weapon 
has been used and no serious damage done, the 
punishment in assaults, assaults and batteries, and 
afifrays shall not exceed a fine of fifty dollars or 
imprisonment for thirty days; but this proviso 
shall not apply to cases of assault with intent to 
kill or with intent to commit rape, or to cases of 
assault or assault and battery by any man or boy 
over eighteen years old on any female person: 
Provided, that in all cases of assault, assault and 
battery, and affrays, wherein deadly weapons are 
used and serious injury is inflicted, and the plea 
of the defendant is self-defense, evidence of former 
threats against the defendant by the person al- 
leged to have been assaulted by him, if such 
threats shall have been communicated to the de- 
fendant before the altercation, shall be competent 
as bearing upon the reasonableness of the claim 
of apprehension by the defendant of death or 
serious bodily harm, and also as bearing upon the 
amount of force which reasonably appeared neces- 
sary to the defendant, under the circumstances, to 
repel his assailant. (Rev., s. 3620; Code, s. 987; 
1870-1, c. 43, s. 2; 1873-4, c. 176, s. 6; 1879, c. 92, 
ss. 2, 6; 1911, c. 193; 1933, c. 189.) 

Editor's Note.— Public Laws of 1933, c. 189, added tile 
proviso, at the end of this section, relative to the admission 
of any evidence of threats of assailant. 

Art. 11. Kidnapping and Abduction 

§ 4221(a). Kidnapping. — It shall be unlawful 
for any person, firm or corporation, or any in- 
dividual, male or female, or its or their agents, to 
kidnap or cause to be kidnapped any human be- 
ing, or to demand a ransom of any person, firm 
or corporation, male or female, to be paid on ac- 
count of kidnapping, or to hold any human being 
for ransom: Provided, however, that this section 
shall not apply to a father or mother for taking 
into their custody their own child. 

Any person, or their agent, violating or caus- 
ing to be violated any provisions of this section 
shall be guilty of a felony, and upon conviction 



[139] 



§ 4226 



CRIMES AND PUNISHMENTS 



§ 4283(a> 



therefor, shall be punishable by imprisonment for 
life. 

Any firm or corporation violating, or causing 
to be violated through their agent or agents, any 
of the provisions of this section, and upon being 
found guilty, shall be liable to the injured party 
suing therefor, the sum of twenty-five thousand 
dollars ($25,000), and shall forfeit its or their 
charter and right to do business in the state of 
North Carolina. (1933, c. 542.) 

Art. 12. Abortion and Kindfed Offenses 

§ 4226. Using drugs or instruments to destroy 
unborn child. 

Admissibility of Statement Made Four Months Prior to 
Abortion. — Upon the trial of a physician for procuring an 
abortion testimony of a conversation between the physician 
and the woman as to an abortion about four months prior 
to the time in controversy is irrelevant and incompetent and 
its admission in evidence is prejudicial to the defendant and 
constitutes reversible error. State v. Brown, 202 N. C. 221, 
162 S. E. 216. 

SUBCHAPTER V. OFFENSES AGAINST 

THE HABITATION AND OTHER 

BUILDINGS 

Art. 15. Arson and Other Burnings 

§ 4242, Setting fire to churches and certain other 
buildings. 

IV. QUESTION FOR JURY. 
Must Be Sufficient Evidence. — 

Where, in a prosecution under this section, the evidence 
fails to estaiblish the felonious- origin of the fire or the identity 
of the defendant as the one who committed the ofJense 
charged, or circumstances from which these facts might rea- 
sonably be inferred, it is insufficient to be submitted to the 
jury. State v. Church, 202 N. C. 692, 163 S. E. 874. 

§ 4245. Fraudulently setting fire to dwelling- 
houses. 

Specifying Particular Fraudulent Purpose. — Where in a 
prosecution under this section the indictment charge^ 
that the defendant burned his dwelling-house for the fraud- 
ulent purpose of obtaining insurance money thereon, and the 
court charges the jury that if they should find beyond a rea- 
sonable doubt that the defendant did the act charged for .'. 
fraudulent purpose, it was not necessary for the bill of in- 
dictment to specify any particular fraudulent purpose, and 
the unnecessary allegation in the bill is- not, necessarily, fatal. 
State V. Morrison, 202 N. C. 60, 161 S. E. 725. 



SUBCHAPTER 



VI. OFFENSES AGAINST 
PROPERTY 

Art. 16. Larceny 
§ 4250. Receiving stolen goods. 

The inference or presumption arising from the recent pos- 
session of stolen property, without more, does not extend to 
the charge of this section of receiving said property know- 
ing it to have been feloniously stolen or taken. State v. Best, 
202 N. C. 9, 10, 161 S. E. 535; State v. Lowe, 204 N. C. 572, 
573, 169 S. E. 180. 

Art. 18. Embezzlement 

§ 4270. Embezzlement of funds by public of- 
ficers and trustees. 

Meaning of "WUfuIly and Corruptly." — In a charge upon 
the trial of county officials for the misapplication of county 
funds under the provisions of this section, the definition that 
"wilfidly and corruptly" meant with "bad faith and without 
regard to the rights of others and in the interest of such 
parties for whom the funds were held" is not erroneous un- 
der the circumstances of this case. State v. Shipman, 202 N. 
C. 518, 163 S. E. 657. 

§ 4274(a). Appropriation of partnership funds 
by partner to personal use. 

Fraudulent intent is an essential element of this crime and 

must be proved by the State, and in a prosecution under 



this section an instruction that the jury should return a 
verdict of guilty if they found beyond a reasonable doubt the 
facts to be as the evidence tended to show, is error, the 
question of fraudulent intent being a question for the jury- 
to determine from the evidence. State v. Rawls, 202 N. C. 
397, 162 S. E. 899. 

§ 4276. Embezzlement by tax officers. 

Inference of Fraudulent Intent. — While the intent to com- 
mit the offense of embezzlement is an esisential ingredient of 
the crime, the fraudulent intent may be inferred by the jury 
under evidence sufficient to show it, and where under such 
evidence the trial court correctly defines such intent, and 
places the burden of proof throughout the trial on the State 
to show the intent beyond a reasonable doubt, an exception 
that the court failed to instruct the jury upon the element 
of felonious intent is untenable. State v. I,ancaster, 202 N. 
C. 204, 162 S. E. 367. 

Art. 19. False Pretenses and Cheats 
§ 4283(a). Worthless checks. — It shall be un- 
lawful for any person, firm or corporation, to 
draw, make, utter or issue and deliver to another, 
any check or draft on any bank or depository, for 
the paym_ent of money or its equivalent, knowing 
at the time of the making, drawing, uttering, is- 
suing and delivering such check or draft as afore- 
said, that the maker or drawer thereof has not 
suf^cieni funds on deposit in or credit with such 
bank or depository with which to pay the same 
upon presentation. 

Any person, firm or corporatiou violating any 
provision of this section shall be guilty of a mis- 
demeanor. [If the amount due on such check is 
not over fifty dollars, the punishment shall not 
exceed a fine of fifty dollars or imprisonment for 
thirty days.] 

The word "credit" as used herein shall be con- 
strued to mean an arrangement or understanding 
with the bank or depository for the payment of 
any such check or draft. The part of this sec- 
tion in brackets shall only apply to Pitt county, 
Robeson county, Iredell county, Martin county, 
Lee county, Rutherford county, Bladen county, 
Cumberland county, Mecklenburg county, Ca- 
tawba county, Sampson county, Alleghany county, 
Lenoir county, Randolph county, Gaston county, 
Hoke county, Madison county, Burke county, 
Transylvania county, Rockingham county, Hali- 
fax county, Hertford county, Richmond county, 
Chatham county, Pamlico county. Wake county, 
Haywood county, Davidson county, Anson 
county, Carteret county, Davie county, Forsyth 
county, Greene county, Jackson county, Hender- 
son county, Stokes county, Onslow county, 
Macon county, Currituck county, Chowan county, 
Vance county, Edgecombe county, Northampton 
county, Stanly county, Cabarrus county, Mitchell 
county, Yancey county, Avery county, Alamance 
county, Franklin county, Yadkin county, 
Caldwell county, Gates county, Ashe county, 
Washington county, Nash county, Johnston 
county, Duplin county, Wayne county, Guilford 
county. Rowan county, Bertie county, Moore 
county, Harnett county, Columbus county, Wa- 
tauga county, Lincoln county, Caswell county, 
Orange county. Buncombe county, Wilkes county, 
Hyde county, Durham county, Swain county, 
Clay county, Graham county, Cherokee county, 
Scotland county, Union county, and Surry county. 
(1927, c. 62; 1929, c. 373, ss. 1, 2; 1931, cc. 63, 
138, 292; 1933, cc. 43, 64, 93, 170, 265, 362, 458.) 



Editor's Note. — 

The various amendments 



by Public Laws 1933, c. 43, did 



140 ] 



§ 4284 



CRIMES AND PUNISHMENTS 



§ 4352 



not affect the substance of the section but merely added 
counties to the list in the last paragraph. 

Cited in State v. Byrd, 204 N. C. 162, 167 S. E. 626. 

§ 4284. Obtaining entertainment at hotels and 
boarding-houses without paying therefor. 

Editor's Note.— 

By P. Iv. 1933, c. 531, the application of the Act of 1929, c. 
103, described in the Editor's note, is extended lo Buncombe, 
Jackson and Franklin counties. 

SUBCHAPTER VII. CRIMINAL TRESPASS. 
Art. 22. Trespasses to Land and Fixtures. 

§ 4309. Setting fire to grass and brush lands 
and wood lands. 

No Evidence to Show Fire Started by Defendcint. — Where 
the evidence tends only to show that the fire started on de- 
fendant's land and spread to the plaintiff's land, but that 
the defendant had ordered his employees not to set out a 
fire on account of the dry conditions, and there is neither di- 
rect nor circumstantial evidence tending- to show the fire had 
been started either by the defendant or his employees under 
his authority, a judgment as of norsuit is proper. Sutton v. 
Herrin, 202 N. C. 599, 163 S. E. 578. 

Art. 23B. Regulating the Leasing of Storage 
Batteries 

§ 4335(f). "Rental battery" defined; identifica- 
tion of rental storage batteries. — As used in this 
article the words "rental battery" are defined as 
an electric storage battery loaned, rented or fur- 
nished for temporary use by any person, firm or 
corporation engaged in the business of buying, 
selling, repairing or recharging electric storage 
batteries. All such persons, firms or corporations 
may mark any such rental batteries belonging to 
them with the word "rental," or any other word 
of similar meaning, printed or stamped upon or 
attached to such battery together with such words 
as shall identify such batteries as the property of 
the person, firm or corporation so marking the 
same. It shall be unlawful for any person, firm 
or corporation to so mark any such batteries 
which are not the property of such person, firm 
or corporation. (1933, c. 185, s. 1.) 

§ 4335(g). Defacing word "rental" prohibited. 

— It is unlawful for any person, firm or corpora- 
tion to remove, deface, alter or destroy the word 
"rental" on any rental battery or any other word, 
mark or character printed, painted or stamped 
upon or attached to any rental battery to identify 
the same as belonging to or being the property of 
any person, firm or corporation. (1933, c. 185, 
s. 2.) 

§ 4335(h). Sale, etc., of rental battery pro- 
hibited. — It is unlawful for any person, firm or 
corporation other than the owner thereof to sell, 
dispose of, deliver, rent or give to any other per- 
son, firm or corporation any rental battery marked 
by the owner as provided by section 4335(f). 
(1933, c. 185, s. 3.) 

§ 4335 (i). Repairing another's rental battery 
prohibited. — It is unlawful for any person, firm 
or corporation engaged in the business of buy- 
ing, selling, repairing or recharging electric stor- 
age batteries to recharge or repair any rental 
battery not owned by such person, firm or cor- 
poration marked by the owner thereof as provided 
by section 4335(f). (1933, c. 185, s. 4.) 

§ 4335(j). Time limit on possession of rental 

[14 



battery without written consent. — It is unlawful 
for any person, firm or corporation to retain in 
his, their or its possession for a longer period 
than ten (10) days, without the written consent 
of the owner, any rental battery marked as such 
by the owner as provided by section one of this 
article. Demand must be made on any person 
who so retains a rental battery in his possession 
at least five days before a prosecution can be in- 
stituted: Provided, however, that proof of a regis- 
tered letter having been sent to the person so 
offending at his last known address shall be ac- 
cepted as conclusive evidence of such demand. 
(1933, c 185, s. 5.) 

§ 4335 (k). Violation made misdemeanor. — Any 

person, firm or corporation, and the officers, 
agents, employees, and members of an}' firm or 
corporation violating any of the provisions of 
sections 4335(f)-4335(j) shall be guilty of a mis- 
demeanor and upon conviction thereof shall be 
sentenced to pay a fine not exceeding fifty dollars 
or be imprisoned for a term of not exceeding 
thirty days in the discretion of the court. (1933, 
c. 183, s. 6.) 

§ 4335(1). Rebuilding storage batteries out of 
old parts and sale of, regulated. — -Any person, firm 
or corporation who assembles or rebuilds an elec- 
tric storage battery for use on automobiles, in 
whole or in part, out of second-hand or used ma- 
terial such as containers, separators, plates, groups 
or other battery parts, and sells same or offers 
same for sale in the state of North Carolina with- 
out the word "rebuilt" placed in the side of the 
container, shall be guilty of a midemeanor and, 
upon conviction thereof, shall be sentenced to pay 
a fine not exceeding two hundred and fifty dol- 
lars or imprisoned for a term not exceeding six 
months or both. (1933, c. 535.) 

SUBCHAPTER VIII. OFFENSES AGAINST 

PUBLIC MORALITY AND 

DECENCY 

Art. 24. Offenses against Public Morality 
and Decency 
§ 4339. Seduction. 

Promise of Marriage Must Be Unconditional. — In order 

for conviction tmder this section, the promise of marriage 
must be absolute and unconditional, and a promise at the 
tim« to marry the woman in the event "anything should 
happen to her," is insufficient for a conviction under the 
statute. State v. Shatley, 201 N. C. 83, 159 S. E. 362. 

Effect of Marriage upon Consent Judgment. — Where, in a 
prosecution for seduction a consent judgment is entered re- 
quiring the defendant to pay a certain sum to the prosecu- 
trix, a subsequent marriage of the parties before the whole 
sum is paid does not discharge the judgment, the consent 
of all parties being necessary to set aside such judgment. 
For the defendant to get the benefit of this section the 
marriage must be before he is adjudged guilty. State v. 
McKay, 202 N. C. 470, 163 S. E. 586. 

§ 4347. Certain evidence relative to keeping 
disorderly houses admissible; keepers of such 
houses defined. 

Evidence. — This section authorizes the admission of evi- 
dence tending to show the lewd, dissolute, and boisterous 
conversation of the inmates and frequenters of the house, 
and especially provides that evidence of the general reputa- 
tion or character of the house shall be admissible and com- 
petent. State V. Hilderbran, 201 N. C. 780, 161 S. E. 488. 

§ 4352. Local: Using profane or indecent lan- 
guage on public highways. — If any person shall, 

1] 



§ 4364 



CRIMES AND PUNISHMENTS 



§ 445S 



on any public road or highway and in the hearing 
of two or more persons, in a loud and boisterous 
manner, use indecent or profane language, he shall 
be guilty of a misdemeanor and upon conviction 
shall be fined not exceeding fifty dollars or im- 
prisoned not exceeding thirty days. The follow- 
ing counties shall be exempted from the provisions 
of this section: Dare, Tyrell, Washington, Beau- 
fort, Martin, Pitt, Wautauga, Cleveland, Bruns- 
wick, Stanly, Perquimans, Pasquotank, Camden, 
Swain, Davie, Orange, Jones, Transylvania, Ma- 
con and Craven. (1913, c. 40; 1933, c. 309.) 

Editor's Note.— Public Laws of 1933, c. 309, omitted Gates 
from th-; list of excepted counties. 

SUBCHAPTER IX. OFFENSES AGAINST 
PUBLIC JUSTICE 

Art. 26. Perjury 
§ 4364. Punishment for perjury. 

Where the defendant swears to an answer in a civil an- 
swer before one authorized to administer the oath and the 
answer contains a false statement of fact, in order to con- 
vict him of perjury under the provisions of this section it 
must be shown that he "willfully and corruptly" com- 
mitted the oiTense. State v. Dowd, 201 N. C. 714, 161 S. 
E. 205. 

Art. 27. Bribery 
§ 4373. Offering bribes. 

Not Necessary that Brihed Juror Received Fee. — In a pros- 
ecution under this section it is not necessary that the in- 
dictment should chairge that the juror received any fee or 
other compensation, the statutes making a distinction be- 
tween bribery and an offer lo bribe. State v. Noland, 204 
N. C. 329, 168 S. E. 413. As to venue, see note to § 4606. 

Art. 29. Misconduct in Public Office 

§ 4388. Director of public trust contracting for 
his own benefit. 

Effect of Special Validating Act. — Although municipal bonds 
were sold to a corporation controlled by the mayor, an act 
passed by the legislature expressly confirming and validating 
the sale lemoves all objections based upon the violation of 
the provisions of this section. Starmount Co. v. Ohio Sav. 
Bank, etc., Co., 55 F. (2d) 649. 

§ 4391(1). Soliciting during school hours with- 
out permission of school head. — No person, agent, 
representative or salesman shall solicit or attempt 
to sell or explain any article of property or propo- 
sition to any teacher or pupil of any public school 
on the school grounds or during the school day 
without having first secured the written permis- 
sion and consent of the superintendent, principal 
or person actually in charge of the school and re- 
sponsible for it. 

Any person violating the provisions of this sec- 
tion shall be guilty of a misdemeanor and shall 
be fined or imprisoned in the discretion of the 
court. (1933, c. 220.) 

SUBCHAPTER X. OFFENSES AGAINST 
THE PUBLIC PEACE 

Art. 32. Offenses against the Public Peace 
§ 4410. Carrying concealed weapons. 

Concealment Is Gist of Offense. — 

The possession of a pistol by one on the premises of an- 
other is not alone sufficient to convict of carrying a con- 
cealed weapon in violation of this section, although the stat- 
ute makes such possession prima facie evidence of the con- 
cealment thereof. State v. Vanderburg, 200 N. C. 713, 158 
S. E. 248. 

[1 



SUBCHAPTER XII. GENERAL POLICE 
REGULATIONS 

Art. 34. Lotteries and Gaming 

§ 4428. Dealing in lotteries. — If any person shall 
open, set on foot, carry on, promote, make or draw 
publicly or privately, a lottery, by whatever name, 
stjde or title the same may be denominated or 
known; or if any person, by such way and means, 
expose or set to sale any house, real estate, goods, 
chattels, cash, written evidence of debt, certificates 
of claims or any other thing of value whatsoever, 
every person so offending shall be guilty of a mis- 
demeanor, and shall be fined not exceeding two 
thousand dollars or imprisoned not exceeding six 
months, or both, in the discretion of the court. 
Any person who engages in disposing of any spe- 
cies of property whatsoever, including money and 
evidences of debt, or in any manner distributes 
gifts or prizes upon tickets or certificates sold for 
that purpose, shall be held liable to prosecution 
under this section. Any person who shall have 
in his possession any tickets, certificates or orders 
used in the operation of any lottery shall be held 
liable under this section, and the mere possession 
of such tickets shall be prima facie evidence of the 
violation of this section. (Rev., s. 3726; Code, s. 
1047; R. C, c. 34, s. 69; 1834, c. 19, s. 1; 1874-5, 
c. 96; 1933, c. 434.) 

Editor's Note. — Public Laws of 1933, c. 434, added the last 
sentence of this section, relating to possession of tickets, 
certificates, etc. 

Admissibility of Evidence. — In establishing the promotion 
of the lottery by circumstantial evidence it was permissible 
for the State to show the association of the defendants to- 
gether with their financial relation and transactions. The 
declaration of one defendant as to the other's participation 
in the enterprise and as to their protection if they were 
caught was also competent. State v. Ingram, 204 N. C. 557, 
559, 168 S. E. 837. 

Art. 36. Protection of the Family 
§ 4447. Abandonment of family by husband. 

Cross Reference. — As to competency of wife's testimony 
upon ttial of husband for abandonment of minor children, 
see § 1802 and the note thereto. 

Condonation by Wife Does Not Bar Prosecution. — Abandon- 
ment of the wife by the husband is a statutory offense, and 
it is not condoned, so far as the State's right to prosecute is 
concerned, by a subsequent resumption of the marital rela- 
tion. State V. Manon, 204 N. C. 52, 167 S. E. 493. 

Autrefois Acquit and Convict. — In a prosecution for the 
violation of this section a plea by the defendant of former 
conviction of the same offense is good as to the period prior 
to the conviction, but it is not a bar to the prosecution for 
his failure to provide adequate support for his children sub- 
sequent thereto. State v. Jones, 201 N. C. 424, 160 S. E. 46(i 

§ 4449. Order to support from husband's prop- 
erty or earnings. 

A judgment under this section is not conditional because 
of an order that capias issue at any time on motion of the 
solicitor, for S'uch order is void and not a part of judgment 
and capias may issue upon an order of the court. State v. 
Manon, 204 N. C. 52, 167 S. E. 493. 

Art. 38. Public Drunkenness 

§ 4457(a). Public drunkenness and disorderli- 
ness. 

Verdict of guilty of disorderly conduct but not of drunk- 
enness will not support conviction for drunken and disorderly 
conduct rmder this section. State v. Myrick, 203 N. C. 8, 
164 S. E. 328. 

§ 4458. Local: Public drunkenness. — If any 
person shall be found drunk or intoxicated on the 
public highway, or at any public place or meeting, 
42] 



§ 4468(a) 



CRIMINAL PROCEDURE 



§ 4606 



in any county, township, city, town, village or 
other place herein named, he shall be guilty of a 
misdemeanor, and upon conviction shall be pun- 
ished as is provided in this section: 

1. By a fine of not more than fifty dollars, or by 
imprisonment for not more than thirty days, in 
the counties of Ashe, Catawba, Cleveland, Dare, 
Gaston, Graham, Greene, Haywood, Henderson, 
Hyde, Jackson, Lincoln, Macon, Madison, Mc- 
Dowell, Mecklenburg, Moore, Northampton, Pitt, 
Richmond, Rutherford, Scotland, Stanly, Union, 
Vance, Warren, Franklin and Washington, in the 
townships of Fruitville and Poplar branch in Cur- 
rituck county, and at Pungo in Beaufort county. 
(1907, cc. 305, 785, 900; 1908, c. 113; 1909, c. 815; 
P. L. 1915, c. 790; P. L. 1917, cc. 447, 475; P. L. 
1919, cc. 148, 200.) 

2. By a fine of not less than three dollars nor 
more than fifty dollars, or by imprisonment for 
not more than thirty days, in Yancey county. 
(1909, c. 256.) 

3. By a fine of not less than two dollars and 
fifty cents nor more than fifty dollars, or by 
imprisonment for not more than thirty days, in 
Buncombe county. (1909, c. 271.) 

4. By a fine of not less than five dollars nor 
more than twenty-five dollars, or by imprison- 
ment for not more than ten days, in Cherokee 
and Yadkin counties. (1907, c. 976.) 

5. By a fine of not less than three dollars nor 
more than five dollars in Clay county, all such 
fines to go to the public school fund of that county. 
(1907, c, 309.) 

6. By a fine of not less than five dollars nor 
more than ten dollars in Wake county, all such 
fines to go to the general road fund of that 
county. (1907, c. 908.) 

7. By a fine of not more than fifty dollars, or 
by imprisonment for not more than thirty days, 
in Mitchell county: Provided, that this subsec- 
tion shall not apply to incorporated towns in that 
county. (1909, c. 111.) 

8. By a fine of not less than five dollars nor 
more than fifty dollars, or by imprisonment for 
not more than ten days, in the village of Kan- 
napolis, or on the premises or within one mile 
of the Kannapolis cotton mills. (1909, c. 46, s. 2.) 

9. By a fine, for the first offense, of not less 
than ten nor more than twenty dollars; for sec- 
ond and further offense, no less than twenty nor 
more than thirty dollars, or imprisoned for not 
more than twenty days, in Transylvania county. 
(P. L. 1919, c. 190; Rev., 3733; 1897, c. 57; 1899, 
cc. 87, 208, 608, 638; 1901, c. 445; 1903, cc. 116, 
124, 523, 758; 1924, c. 5; 1929, c. 135, s. 1; 1931, c. 
219.) 

10. By a fine of fifteen dollars or imprisonment 
for ten days for the first offense; by a fine of 
twenty-five dollars or imprisonment for twenty 
days for the second offense; by a fine of fifty 
dollars or imprisonment for thirty days for the 
third and subsequent offenses, in the King high 
school district, Stokes county. (1933, c. 287.) 

11. By a fine of not less than five dollars or 
more than fifty dollars or by im.prisonment for 
not more than thirty daj^s, in the discretion of 
the court in Swain county. (1933, c. 10.) 

Editor's Note. — 

Public Laws of 1933, c. 287, added subdivision 10, relating 
to King High School District, Stokes county. Chapter 10 

[1 



struck out Swain from the list of counties in subdivision 1, 
and added subdivision 11 applicable in that county only. 

Art. 40. Regulation of Sales 

§ 4468(a). Sale of convict-made goods pro- 
hibited. — Except as hereinafter provided, the sale 
anywhere within the state of North Carolina of 
any and all goods, wares and merchandise manu- 
factured, produced or mined wholly or in part, by 
convicts or prisoners, except by convicts or pris- 
oners on parole or probation, or in any penal 
and/or reformatory institutions is hereby pro- 
hibited and declared to be unlawful. 

The provisions of this section shall not apply to 
sales or exchanges between the state penitentiary 
and other penal, charitable, educational and/or 
custodial institutions, maintained wholly or in part 
by the state, or its political subdivisions, for use 
in said institution or by the wards thereof; nor 
shall the provisions of this section apply to the 
sale of cotton, corn, grain or other processed or 
unprocessed agricultural products, including seed 
for growing purposes, or to the sale of stone, 
quarried by convict labor, or to the sale of coal 
or chert mined by convict labor, in any mine 
operated by the state: Provided that this section 
shall apply with equal force to sales to the state 
or any political subdivision thereof by any state 
penal or correctional institution, including the 
state highway: Provided further that the state of 
North Carolina shall have the right of manufac- 
turing in any of its penal or correctional institu- 
tions products to be used exclusively by the state 
or any of its agencies. 

This section shall apply equally to convict or 
prison-made goods, wares or merchandise, whether 
manufactured, produced or mined within or with- 
out the state of North Carolina. 

Any person, firm or corporation selling, under- 
taking to sell, or offering for sale any such prison- 
made or convict-made goods, wares or merchan- 
dise, anywhere within the State, in violation of 
the provisions of this section, shall be guilty of a 
misdemeanor, and, upon conviction, shall be sub- 
ject to fine, or imprisonment, or both, in the dis- 
cretion of the court. Each sale or offer to sell, in 
violation of the provisions of this section, shall 
constitute a separate offense. (1933, c. 146, ss. 1-4.) 

Art. 44. Animal Diseases 

§ 4492. Distributing, selling or using hog-cholera 
virus without permission. 

For act permitting sale and use of virus in Kdgecombe 

county, see Public I_,aws 1933, c. 139. For an act relating to 

the sale of virus in Wilson county, see Public Laws 1933, 
c. 58, 



CHAPTER 83 

CRIMINAL PROCEDURE 
Art. 7. Preliminary Examination 
§ 4561. Prisoner examined; advised of rights. 

It is not necessary to competency of an extra judicial con- 
fession to a police officer that defendant be warned he is not 
compelled to answer. State v. Grier, 303 N. C, 586, 166 S. E. 
595. 

Art. 11. Venue 

§ 4606. Improper venue met by plea in abate- 
ment; procedure. 

Purpose of Section. — This section was evidently intended 
43] 



§ 4611 



CRIMINAIv PROCEDURE 



§ 4636(a) 



r. Morrison, 202 N. C. 
statement under this 



to provide relief in difficulties originating in doubt enter- 
tained in good faith as to the county in which the ofifense 
was committed, and should not be construed to modify the 
common law beyond the reasonable scope of its manifest pur- 
pose. State V. Mitchell, 202 N. C. 439, 445, 163 S. E. 581. 

The crime of offerincf a bribe to a juror is committed in 
the county where the offer is communicated to the juror, and 
the proper venue is the county in which the juror was serv- 
ing and in which the defendant's offer was communicated to 
him by his wife, although defendant communicated with the 
juror's kinsmen and wife in the county of their residence. 
State V. Noland, 204 N. C. 329, 168 S. E. 412. 

Art. 13. Indictment 

§ 4611. Bills returned by foreman except in 
capital cases. 

Indictment Need Not Be Signed. — 

No endorsement by the foreman or otherwise is essential 
to the validity of an indictment, which has been duly re- 
turned into court by the grand jury under this section, and 
entered upon its records. State v. Avant, 202 N. C. 680, 683, 
163 S. E. 806. 

§ 4612. Substance of judicial proceedings set 
forth. 

Refinements Abolished. — See State 
60, 61, 161 S. E. 725, following the 
catchline in the Code of 1931. 

§ 4613. Bill of particulars. 

What Bill Will Not Supply.— 

The provisions of this section cannot supply a deficiency 
in an indictment when the language of the indictment fails 
to adequately charge the essential concomitants of the of- 
fense. State V. Cole, 202 N. C. 592, 163 S. E. 594. 

Motion to Quash Not Proper Remedy. — ^Vhere the criminal 
indictment sufficiently charges all the elements of the of- 
fense but is not as definite as the defendant may desire the 
defendant's remedy is by a motion for a bill of particulars, 
and not by a motion to quash. State v. Everhardt, 203 N. 
C. 610, 166 S. E. 738. 

§ 4614. Essentials of bill for homicide. 

An indictment charging the essential facts of murder as 

required by this section, is sufficient to sustain the court's 
charge based upon the evidence in the case relative to mur- 
der comm.itted in the perpetration of robbery or other felony. 
State V. Fogleman, 304 N. C. 401, 168 S. E. 536. 

§ 4622. Separate counts; consolidation. 

Housebreaking emd Larceny. — When not subject to legal 
objection, a motion by the solicitor to consolidate two crim- 
inal actions for trial is addressed to the discretion of the trial 
judge, and where prosecutions for housebreaking and larceny 
on two occasions during the same night against two defend- 
ants are consolidated without objection, and the charges are 
so connected in time and place that evidence of guilt in one 
action is competent in the other, the order of the trial judge 
consolidating the actions will not be held for error on appeal. 
State v. Combs, 20fJ N. C. 671, 158 S. E- 252. 

Murder of One Person and Assault upon Another. — Upon 
the trial under an indictment charging the prisoner with 
murder of M., it is reversible error to the defendant's prej- 
udice for the trial court upon his own motion, after a sub- 
stantial part of the evidence had been introduced to consoli- 
date the action with another action under a separate indict- 
ment charging the prisoner with an assault with a deadly 
weapon upon D., the prisoner being afforded no opporttmity 
to pass tipon the impartiality of the jury upon the assault 
charge or an opportunity to plead to the charge. State v. 
Rice, 202 N. C. 411, 163 S. E, 112. 

Burglary emd Rape. — A motion, made before the introduc- 
tion of any evidence, to require the State to elect between 
two separate counts in the bill of indictment, one charging 
burglary in the first degree and the other rape, is properly 
denied, the two offenses being of the same class, which under 
this section may be joined in one indictment in separate 
counts, and it being within the sound discretion of the trial 
court as to whether he should compel an election between 
the counts and. if so, at what stage of the trial. State v. 
Smith, 201 N. C. 494, 160 S. E. 577. 

§ 4623. Bill or warrant not quashed for infor- 
mality. 

11. GENERAL EFFECT. 
Does Not Supply Essential Averments. — By the many ad- 
judications construing this section it has been definitely 



settled that the section neither supplies nor remedies the 
omission of any distinct averment of any fact or circumstance 
which is an essential constituent of the offense charged. 
State V. Cole, 202 N. C. 592, 598, 163 S. E. 594. 

Where the indictment contains sufficient matter to enable 
the court to proceed to judgment a motion to quash for du- 
plicity or jndefiniteness is properly refused, and a motion to 
quash for redundancy or inartificiality is addressed to the 
sound discretion of the trial court. State v. Davis, 203 N. C. 
13, 14, 164 S. E. "n. 

Plain Intelligible and Explicit Charge Sufficient. — See State 
V. Everhardt, 203 N. C. 610, 166 S. E. 738, following statement 
in Code of 1931. 

Following Words of Statute. — See State v. Davis, 203 N. 
C. 47, 48, 164 S. E. 732, following statement in Code of 1931. 

III. DEFECTS CURED. 
B. Omissions and Misteikes. 
Ownership of Property in Arson. — In a prosecution for 
arson under §§ 4175, 4245, an indictment stating that the de- 
fendant procured another to bum a certain house owned by 
the defendant and another as tenants in common is sufficient, 
and the fact that the same parties owned other houses in 
like capacity is not ground for demurrer or quashal. State 
V. McKeithan, 203 N. C. 494, 166 S. E. 336. 

§ 4625. Defects which do not vitiate. 

Jurisdiction. — Where the jurisdiction of the court is not 
ousted on the face of the indictment the position that the 
court does not have jurisdiction is not available on a plea in 
abatement. State v. Davis, 203 N. C. 13, 14, 164 S. E. 737. 

Failure to specify a particular day in eui indictment for 
abandonment is not fatal especially in view of an instruction 
that the jury should consider only such evidence as tends to 
show that the defendant violated the statute after a particu- 
lar date. State v. Jones, 201 N. C. 424, 160 S. E. 468. 

Art. 15. Trial in Superior Court 

§ 4633. Peremptory challenges of jurors by de- 
fendant. 

Where several defendants are tried together for a crime 
other than a capital felony each is entitled to four peremp- 
tory challenges to the jury, and where the court has ruled 
that the defense was a joint defense and has allowed but four 
peremptory challenges for all the defendants, a new trial will 
be granted upon appeal. State v. Burleson, 203 N. C. 779, 
166 S. E. 905. 

§ 4636(a). Waiving jury trial; pleas; demurrer 
to evidence. — In all trials in the superior courts of 
this state, wherein the defendant stands charged 
with an offense not punishable with death, when 
represented by counsel, it shall be competent for 
the defendant to enter a conditional plea of guilty 
therein, or nolo contendere, if the court shall per- 
mit the latter plea; and thereupon, the court may 
hear and determine the matter, having the evi- 
dence recorded, if it be demanded by the de- 
fendant 'before, or at the time of entering plea. 
Upon the conclusion of the evidence for the state 
the defendant shall have the right to demur to the 
evidence, which demurrer shall have the same 
force and effect as such demurrers now have in 
the trial of criminal causes by jury, and in the 
event said demurrer is overruled, may again de- 
mur at the conclusion of all the evidence, with the 
like force and effect. When objection has been 
made and exception taken to the overruling of the 
demurrer, the defendant may appeal from final 
judgment and sentence of the court notwithstand- 
ing the plea theretofore entered. The judge shall 
pass upon the evidence with due regard of the 
weight aad sufficiency thereof, as the same may 
be considered by a jury, and if he is satisfied be- 
yond a reasonable doubt that thj defendant is 
guilty, he shall proceed to judgment and sentence 
upon the plea entered, and dispose of the case in 
like manner as upon conviction by a jury. If he is 
not so satisfied, he shall cause the plea to be 



[144] 



§ 4640 



CRIMINAIv PROCEDURE 



§ 4651 



stricken out and a verdict of not guilty entered: 
Provided, however, that, upon such plea, the judge 
hearing the matter may find the defendant guilty 
of any count or charge or decree of offense cov- 
ered by the indictment or warrant, in the same 
manner as the jury may have been permitted to 
find in case of jury trial. (1933, cc. 23, 469.) 

§ 4640. Conviction for a less degree or an at- 
tempt. 

Evidence Must Justify Conviction in Lesser Degree. — The 

principle upon which a defendant may be convicted upon a 
less degree of the same crime charged in the bill of indict- 
ment applies only where there is evidence of guilt of the less 
degree, and where burglary in the first and second degree is 
charged in the indictment, and the question as to guilt on 
the first count is withdrawn, and the evidence does not sup- 
port the charge of second degree burglary, the defendant can- 
not be convicted of the lesser offense. State v. Spain, 201 N. 
C. 571, 160 S. E. 825. 

The provisions of this section in regard to conviction of a 
less degree of the crime charged in a bill of indictment ap- 
plies only where there is some evidence that a less degree of 
the crime had been committed, and where the State's uncon- 
tradicted evidence is to the effect that the crime of rape had 
been committed and the defendant relies solely upon an alibi, 
the refusal of the court to charge upon the lesser degrees of 
the crime or of an attempt is not error. State v. Smith, 201 
N. C. 494, 160 S. E. 577. 

Where all the evidence at the trial of a criminal action, if 
believed by the jury, tends to show that the crime charged 
in the indictment was committed as alleged therein, and there 
is no evidence tending to show the commission of a crime of 
less degree, it is not error for the court to fail to instruct the 
jury that they may acquit the defend.int of the crime charged 
in the indictment and convict him of a crime of less degree. 
State V, Cox, 201 N. C. 357, 361, 160 S. E. 358. 

This section does not confer upon a jury in the trial of a 
criminal action the power arbitrarily to disregard the uncon- 
tradicted evidence tending to show that the crime charged in 
the indictment was committed as alleged therein and in the 
absence of evidence to sustain such conviction, to convict the 
defendant of a crime of less degree. Id. 

§ 4643. Demurrer to the evidence. 

Sufficiency of Evidence. — 

Upon a motion as of nonsuit in a criminal action, made at 
the close of the State's evidence and renewed at the close of 
all of the evidence, all the evidence, whether offered by the 
State or elicited from defendant's witnesses, will be consid- 
ered in the light most favorable to the State, and it is en- 
titled to every reasonable intendment thereon and every rea- 
sonable inference therefrom, and only evidence favorable to 
the State will be considered, the weight and credibility of 
the evidence being for the jury. State v. Ammons, 204 N. C. 
753, 169 S. E. 631. 

On motion to dismiss or judgment of nonsuit, the evidence 
is to be taken in the light most favorable to the State, and 
it is entitled to the benefit of every reasonable intendment 
upon the evidence and every reasonable inference to be drawn 
therefrom. . . . The evidence favorable alone to the State 
is considered — defendant's evidence is discarded. State v. 
Shipman, 202 N. C. 518, 524, 163 S. E. 657. 

Upon motion as of nonsuit in a criminal action, under this 
section, the evidence is to be considered in the light most 
favorable to the State, and if there is any evidence tending 
to prove the fact of guilt or which reasonably conduces to its 
conclusion as a fairly logical and legitimate deduction, and 
not such as merely raises a suspicion or conjecture of guilt, 
it is for the jury to say whether they are convinced beyond 
a reasonable doubt of the fact of guilt. State v. Marion, 200 
N. C. 715, 158 S. E. 406. 

See also State v. Lawrence, 196 N. C. .562, 564. 146 S. E. .W5, 
and State v. Durham, 201 N. C. 724, 161 S. E. 398, 731, follow- 
ing third paragraph under this catchline in Code of 1931. 

Scune — Evidence Raising Suspicion Only. — Evidence that 
does no more than raise a suspicion, somewhat strong per- 
haps, of a homicide and the defendant's guilt, is not enough 
on a prosecution for murder and demurrer to the evidence 
will be sustained. State v. Carter, 204 N. C. 304, 305, 168 S. 
E. 204. 

Same — Medicious Castration. — The direct evidence of the 
guilt of one of the defendants in a prosecution for malicious 
castration, and the circumstantial evidence as to the other's 
participation and guilt is held sufficient to overrule their mo- 
tions as of nonsuit. State v. Ammons, 204 N. C. 753, 169 S. 
E. 631. 

N. C. Supp. — 10' 



Same — Identity. — In a prosecution for homicide the evidence 
of the defendant's identity as the perpetrator of the crime is 
sufficient to be sulnmitted to the jury, the weight and credi- 
bility of the wife's identification of the defendant being for 
their determination, and defendant's motion as of nonsuit on 
the ground that her testimony was based upon imagination 
and auto-suggestion was properly refused. State v. Fogle- 
man, 204 N. C. 401, 168 S. E. 536. 

Scume — Conspiracy. — Where the direct circumstantial evi- 
dence in this case tends to show that defendant had quarreled 
with deceased and had entered into a conspiracy to kill him, 
that deceased was murdered and that all the conspirators, 
including the appealing defendant, were present, aiding and 
abetting in the commission of the crime, the evidence is suffi- 
cient to be submitted to the jury and motion for non-suit was 
properly overruled. State v. Brown, 204 N. C. 392,- 168 S. E. 
532. 

Same — Assault with Intent to Kill. — In a prosecution, for a 
secret assault and battery with a deadly weapon with malice 
and intent to kill, evidence that there had been ill-feeling be- 
tween the prosecuting witness and the defendant, that the 
prosecuting witness had seen and recognized the defendant 
standing outside a window in the witness's home, that the 
defendant appeared there suddenly at night and shot the 
prosecuting witness before he could do anything, and se- 
riously wounded him, is sufficient to overrule defendant's mo- 
tion as of nonsuit, and to show that the assault was done in 
a secret manner. State v. Mcl^amb, 203 N. C. 442, 166 S. E- 
507. 

Variance. — Where there is a fatal variance between the in- 
dictment and the proof, it is proper to sustain the demurrer 
to the evidence, or to dismiss the action as in case of non- 
suit. State V. Franklin, 204 N. C. 157, 158, 167 S. E. 569. 

§ 4644. New trial to defendant. 

Disqualification of Jurors and Newly Discovered Evidence. 

— Where a judgment of the Supreme Court in a criminal 
case has been certified to the Clerk of the Superior Court, 
the case is in the latter court for execution of the sentence, 
.and a motion for a new trial may be there entertained for 
disqualification of jurors and for newly discovered evidence, 
State v. Casey, 201 N. C. 620, 161 S. E. 81. 

Art. 16. Appeal 
§ 4649. When state may appeal. 

If a warrant charges simple assault, the State has no right 
of appeal from a judgment of a justice of the peace acquitting 
the defendant, the justice having, in such cases, exclusive 
original jurisdiction. State v. Myrick, 202 N. C. 688, 163 S. 
E. 803. 



§ 4651, Defendant may appeal without security 
iot costs. — In all cases of conviction in the su- 
perior courts, the defendant shall have the right 
to appeal without giving security for costs, upon 
filing an affidavit that he is wholly unable to give 
security for the costs, and is advised by counsel 
that he has reasonable cause for the appeal prayed, 
and that the application is in good faith. 

And where it shall appear to the presiding judge 
that a defendant who has ^been convicted of a cap- 
ital felony and who has prayed an appeal to the 
supreme court from the sentence of death pro- 
nounced against him upon such conviction is un- 
able to defray the cost of perfecting his appeal 
on account of his poverty, it shall be the duty of 
the county in which the alleged capital felony 
was committed, upon the order of such judge, to 
pay the necessary cost of obtaining a transcript 
of the proceedings had and the evidence offered 
on the trial from the court reporter for the use 
of the defendant and the necessary cost of pre- 
paring the requisite copies of the record and briefs 
which the defendant is required to file in the su- 
preme court under the rules of said court. The 
judge may fix the reasonable value of the services 
rendered in furnishing such transcript and pre- 
paring such copies of the record and briefs, and 
said copies of the record and briefs shall be pre- 
pared in the manner prescribed by the rules of 
[145] 



§ 4654 



AGRICULTURE 



§ 4689(3) 



the supreme court in pauper appeals. Provided, 
that this paragraph shall apply only to those cases 
in which counsel has been assigned by the court. 
(Rev., s. 3378; Code, s. 1235; 1869-70, c. 196, s. 1; 
1933, c. 197.) 

Editor's Note.— Public Laws of 1933, c. 197, added the last 
two sentences of this section, relating to appeals in capital 
felony to the Supreme Court. 

Essentials of Affidavit Cannot Be Waived. — 

The affidavit is jurisdictional and may not be waived by 
the solicitor. State v. Stafford, 203 N. C. 601, 166 S. E. 734. 

In order that the Supreme Court may have jurisdiction of 
an appeal in forma pauperis in a criminal action it is required 
that the application for leave to appeal be supported by an 
affidavit of the appellant showing that he is wholly unable to 
give the security required by § 4650; that he is advised by 
counsel that he has reasonable cause for appeal, and that the 
application is made in good faith, and where any of these 
three statutory requirements have not been complied with 
the appeal will be dismissed. State v. Marion, 200 N. C. 715, 
158 S. E. 406. 

Compared with Security in Civil Actions. — The require- 
ments of this section for prosecuting an appeal without mak- 
ing deposit or giving security for costs in a criminal prosecu- 
tion, are different from those in a civil action, but the re- 
quirements of both statutes, are jurisdictional, and unless 
complied with in all respects, the appeal is not properly in 
this Court. Powell v. Moore, 204 N. C. 654, 655, 169 S. E. 
281. 

§ 4654. Appeal not to vacate judgment; stay of 
execution. 

The effect of an appeal is to stay all proceedings in the 
lower court pending the disposition of the appeal, and where, 
after appeal bond has heen given, the defendant makes mo- 
tions before the Superior Court judge for a mistrial for prej- 
udice of jurors and for a new trial for newly discovered evi- 
dence, the motions are coram non judice. State v. Casey, 
201 N. C. 185, 187, 159 S. E. 337. 

Applied in State v. Casey, 201 N. C. 620, 161 S. E. 81. 

Art. 17. Execution 

§ 4659. Sentence of death; prisoner taken to 
penitentiary. 

Death Sentence without Reference to Crime. — 

Where in a prosecution for murder the jury returns a ver- 
dict of guilty of murder in the first degree, the judgment of 
the court, which alone is certified to the warden of the State 
prison, under this section and §§ 4658, 4660, must recite that 
the defendant had been convicted of murder in the first de- 
gree, and where it recites that the prisoner had been con- 
victed of murder, and sentences the prisoner to death by 
electrocution, the case will be remanded. State v. Langley, 
204 N. C. 687. 

When No Reference to Trial or Crime Is Made. — A 
judgment, while somewhat informal, because it made no 
reference to the trial or the crime of which the prisoner was 
convicted, is, nevertheless, sufficient to meet the require- 
ments of this section. State v. Edney, 202 N. C. 706, 707, 164 
S. E. 23. 



CHAPTER 84 

AGRICULTURE 

Art. lA. North Carolina Fertilizer Law^ of 1933 

§ 4689(1). Title.— This article shall be known 
by the short title of "The North Carolina fertilizer 
law of one thousand nine hundred and thirty- 
three." (1933, c. 324, s. 1.) 

§ 4689(2). Enforcing ofRcial.— This article shall 
be administered by the commissioner of agriculture 
of the state of North Carolina, hereinafter referred 
to as the "commissioner." (1933, c. 324, s. 2.) 

§ 4689(3). Definitions. — When used in this ar- 
ticle : 

(a) The word "person" includes individuals, 



extend and be applied to several persons or things, 
and words importing the plural number may in- 
clude the singular. 

(c) The word "and" may be construed to mean 
"or," and the word "or" may be construed to mean 
"and." 

(d) The term "manufacturer" means a person 
engaged in the business of preparing, mixing or 
manufacturing mixed fertilizers or fertilizer ma- 
terials; and the term "manufacture" means prepa- 
ration, mixing or manufacturing. 

(e) The word "sell" or "sale" includes exchange. 

(f) The term "fertilizer material" means any 
substance containing nitrogen, phosphoric acid or 
potash or combinations of these ingredients in 
forms available to plants, which is or may be used 
with another such substance in the compounding 
of mixed fertilizers or for direct application to 
the soil, excepting unmanipulated animal manures 
and vegetable products. The materials covered in 
paragraph (e) of section 4 shall be considered as 
fertilizer materials but not suitable for use in 
m.ixed fertilizers. Unless such materials are 
animal products which in addition to phosphoric 
acid contain nitrogen in forms available as plant 
food. 

(g) The term "mixed fertilizer" means any 
combination or mixture of fertilizer materials, ex- 
cept as noted in paragraph (f) of this section, de- 
signed and fitted for use in inducing crop yields 
or plant growth when applied to the soil. 

(h) The term "brand name" means the name 
under which any individual mixed fertilizer or 
fertilizer material is offered for sale and may in- 
clude a number, trade mark, or other designation. 

(i) The term "grade" means the minimum per- 
centages of total nitrogen (N); phosphoric acid 
(PzOs) in available form (comprising the water 
and citrate soluble phosphoric acid) except as 
provided for in paragraph (e) of section 4; and 
potash (K2O) soluble in water. These are to be 
stated in this order and, when applied to mixed 
fertilizers, in whole numbers only. 

(j) The term "official sample" means any sam- 
ple of mixed fertilizer or fertilizer material regis- 
tered under this act which is taken by an author- 
ized inspector of the department of agriculture ac- 
cording to the methods prescribed under section 
9, paragraphs (b), (c), (d), (e) and (f). 

(k) The word "ton" means a ton of 2000 pounds 
avoirdupois. 

(1) The term "per cent" or "percentage" means 
the percentage by weight. 

(m) The term "filler" shall mean any material 
that may be added to a mixed fertilizer or fertilizer 
material for any purpose other than the addition 
of available plant food. 

(n) The word "formula" as used in this article 
means a statement of all the materials used in 
compounding the mixed fertilizer and the amount 
of each of such materials used in a ton, or a state- 
ment of the pounds or fractional parts of the 
nitrogen, available phosphoric acid and potash 
that are derived from each fertilizer material used. 
When the formula of any mixed fertilizer is 
printed on a tag attached to the container this 
constitutes an open formula. 

(o) The term "plant food" as used in this 



partnerships, associations and corporations. 

(b) Words importing the singular number may ! article shall mean the nitrogen, phosphoric acid 

[146] 



§ 4689(4) 



AGRICULTURE 



§ 4689(5) 



or potash content of materials occurring in fer- 
tilizers. (1933, c. 324, s. 3.) 

§ 4689(4). Registration. — (a) It shall be unlaw- 
ful for any person, acting for himself, or as agent, 
to sell or offer for sale within the state any mixed 
fertilizer or fertilizer material that has not been 
registered as required by this section. 

(b) Any person who may desire to sell or offer 
for sale, either by himself or through another 
person, mixed fertilizer or fertilizer material in 
this state shall first file with the commissioner on 
registration forms supplied by him a signed state- 
ment, giving the name and address of the appli- 
cant, and the following information wifh respect 
to each brand, grade or analysis, in the following 
order: 

(1) Weight of each package in pounds. 

(2) Brand name. 

(3) Guaranteed analysis showing the minimum 
percentages of plant food in the following order: 
A — In mixed fertilizers: 

Total nitrogen, per cent (whole numbers only) ; 

Water insoluble nitrogen, per cent; 

Available phosphoric acid, per cent (whole 
numbers only) ; 

Water soluble potash, per cent (whole numbers 
only). 
B — In mixed fertilizers branded for tobacco: 

Total nitrogen, per cent (whole numbers only) ; 

Nitrogen in the form of nitrate, per cent; 

Water insoluble nitrogen, per cent; 

Available phosphoric acid, per cent (whole 
numbers only) ; 

Water soluble potash, per cent (whole numbers 
only) ; and the maximum percentage of chloride 
expressed as: 

Chlorine, per cent. 
C — In fertilizer materials: 

Total nitrogen, per cent; 

Nitrogen in the form of nitrate, per cent; 

Available phosphoric acid, per cent; 

Water soluble potash, per cent. 

(4) The name and address of the person 
guaranteeing the registration. 

(5) The sources from which such nitrogen, 
phosphoric acid, and potash are derived. 

(6) Whether or not the brand will be sold with 
an open formula. 

(c) The grade of any brand of mixed fertilizer 
shall not be changed during the year for which 
registration is made, but the guaranteed analysis 
may be changed in other respects and the sources 
of materials may be changed, provided prompt 
notification of such change is given to the com- 
missioner and the change is noted on the con- 
tainer. 

(d) The person offering for sale or selling any 
brand of mixed fertilizer or fertilizer material 
shall not be required to register the same if it has 
already been registered under this article by a 
person entitled to do so and such registration is 
then outstanding. 

(e) In the case of bone, \ankage, mineral phos- 
phates or other unacidulated phosphatic fertilizer 
materials in which the phosphoric acid is not 
shown by laboratory methods to be available but 
eventually becomes available in the soil, the 
phosphoric acid may be guaranteed as total phos- 
phoric acid. If the term available phosphoric 



acid be used in the statement of analyses, it shall 
mean the sum of the water soluble and citrate 
soluble phosphoric acid, except that when applied 
to basic slag phosphates the term available shall 
mean that part of the phosphoric acid found avail- 
able by the Wagner citric acid method as adopted 
by the association of official agricultural chemists. 

(f) In no case shall the term total phosphoric 
acid and available phosphoric acid be used in the 
same statement of analysis. 

(g) Registration of mixed fertilizers or fertilizer 
materials shall be effective from the date of regis- 
tration to and including December thirty-first o£ 
the same year. (1933, c. 324, s. 4.) 



§ 4689(5). Mai'king. — (a) Each person who 
sells or offers for sale mixed fertilizer or fertilizer 
material in this state shall mark upon each con- 
tainer or associate with each shipment or some 
document relative thereto the information re- 
quired by items (1) to (4), both inclusive, of para- 
graph (b) and by paragraph (e) of section 4689- 
(4). Said information may either be branded or 
printed directly on the bag or other shipping con- 
tainer, or may be printed on a tag, label or cer- 
tificate which shall be affixed to the shipping con- 
tainer or otherwise associated with the shipment 
as provided for in this section. 

(b) If shipped in bags, barrels or other con- 
tainers commonly used, said information shall be 
printed (1) either directly on the package, or (2) 
on tags to be affixed to the package by the manu- 
facturer. 

(c) If shipped in bulk by rail, said information 
shall be printed on a suitable label which shall be 
fastened on the inside wall of the car near the 
door. 

(d) If shipped in bulk by boat, truck, wagon, 
or other vehicle, said information shall be attached 
to the copy of the invoice delivered to the pur- 
chaser or other receiver. 

(e) If shipped in packages weighing five pounds 
or less, said information may be printed on the 
container in which the material is delivered to the 
purchaser, or upon a common shipping container 
in which the smaller packages are shipped. 

(f) If the fertilizer is not registered for sale, 
with an open formula, there may be attached to 
the bag or container a tag showing the sources 
from which the plant food is derived and any 
other information, which in the opinion of the 
commissioner accurately describes the materials 
used: Provided, that if any nitrate is claimed as 
an ingredient, the percentage of nitrate nitrogen 
shall be guaranteed on this tag. 

(g) If the fertilizer is registered for sale with 
an open formula it is required that a separate tag 
be attached to the container which tag shall state 
only the formula, the brand name and the name 
and address of the person guaranteeing the regis- 
tration. 

(h) The statement on the open formula tag 
shall constitute a guarantee of the kinds and 
amounts of fertilizer materials in the container 
to which the tag is attached. 

(i) If the analysis of any brand of fertilizer- 
sold or offered for sale with an open formula shall 
show that this statement is false, the commis- 
sioner may revoke the right to sell or offer for 

[147] 



§ 4689(6) 



AGRICULTURE 



§ 4689(9) 



sale such brand with an open formula for a 
period of two years. 

(j) Any manufacturer or other producer who 
shall have suffered three such revocations in any 
two-year period shall not be permitted to register 
any brand with an open formula for two years 
following the last revocation. 

(k) The tags, labels or certificates, required by 
this section, shall be furnished by the manufac- 
turer. (1933, c. 324, s. 5.) 

§ 4689(6). Use of the term "high gr'ade."— (d) 

The words "high grade" shall not appear upon 
any bag or other container of any mixed fertilizer 
which contains, by the guaranteed analysis, a 
total of less than twenty(20) per cent of available 
plant food. (1933, c. 324, s. 6.) 

§ 4689(7). Tonnage tax. 

(a) Inspection Tax on Fertilizer; Tax Tags. — 
For the purposes of defraying expenses of the in- 
spection and of otherwise determining the value 
of mixed fertilizers and fertilizer materials in this 
state, there shall be paid to the department of 
agriculture a charge of twenty cents per ton on 
such mixed fertilizers and fertilizer materials, ex- 
cept those which are sold to a manufacturer for 
the sole purpose of use in the manufacture of fer- 
tilizers, which charge shall be paid before a de- 
livery is made to agents, dealers, or consumers in 
this state. Each ibag, barrel, or other container of 
such mixed fertilizer or fertilizer material shall 
have attached thereto a tag to be furnished by the 
department of agriculture stating that all charges 
specified in this section have been paid, and the 
commissioner, with the advice and consent of the 
board, is hereby empowered to prescribe a form 
for such tags, and to adopt such regulations as 
will insure the enforcement of this law. When- 
ever any manufacturer of mixed fertilizer or fer- 
tilizer material shall have paid the charges required 
by this section, his goods shall not be liable to 
further tax, whether by city, town, or county: 
Provided, this shall not exempt the mixed fer- 
tilizer or fertilizer material from an ad valorem 
tax. 

(b) Issuance of Tax Tags. — The tax tags re- 
quired under this section shall be issued each year 
by the commissioner and be sold to persons apply- 
ing for the same at the tax rate provided in para- 
graph (a) of this section. Tags left in the pos- 
session of persons registering mixed fertilizers or 
fertilizer materials at the end of any calendar 
year may be exchanged for tags of the succeed- 
ing year. 

(c) Tax Tags on Shipments in Bulk. — If any 
manufacturer, dealer, agent or other seller of 
fertilizer shall desire to ship in fculk any mixed 
fertilizer or fertilizer materials, the said manu- 
facturer or seller of fertilizer shall send with the 
bill of lading sufficient tax tags to pay the tax on 
the amount of goods shipped, and the agent of 
the railroad or other transportation company 
shall deliver the tags to the consignee when the 
goods are delivered. (1933, c. 324, s. 7.) 

§ 4689(8). Inspection. — It shall be the duty of 
the commissioner, personally or by agents, duly 
authorized in writing, to make such inspection of 
mixed fertilizer or fertilizer material in this state, 
to have such samples taken, and to have such 



analyses made as in his judgment may be neces- 
sary to ascertain whether or not persons offering, 
selling or distributing mixed fertilizer or fertilizer 
material are complying with the provisions of this 
article. (1933, c. 324, s. 8.) 

§ 4689(9). Official sample; liability for defici- 
ency or damage. — (a) Samples of mixed fertilizer 
or fertilizer material complying with the defini- 
tion set forth in paragraph (j) of section 4689(3) 
and taken as hereafter prescribed in paragraphs 
(b), (c), (d), (e) and (f) of this section shall 
constitute official samples. 

(b) For purposes of analysis by the commis- 
sioner or his duly authorized chemists and for 
comparison with the guarantee supplied to the 
commissioner in accordance with sections 4689(4) 
and 4689(5), the commissioner, or an official in- 
spector duly appointed by him, shall take an of- 
ficial sample of not less than one pound from con- 
tainers of mixed fertilizer or fertilizer material. 
No sample shall be taken from less than five (5) 
containers. If the lot comprises five (5) or more 
containers, portions shall be taken from each one 
up to a total of ten (10) containers and if there 
are more than ten (10) containers one additional 
portion shall be taken from each additional ton or 
fraction thereof included in the lot. 

(c) In sampling mixed fertilizers or fertilizer 
materials in bulk, either in a factory or a car, at 
least ten portions shall be drawn and these from 
different places so as fairly to represent the pile 
or car lot. 

(d) In sampling, a core sampler shall be used 
that removes a core from the bag or other pack- 
age from top to bottom, and the cores taken shall 
be mixed on clean oil cloth or paper, and if neces- 
sary shall be reduced after thoroughly mixing, by 
quartering, to the quantity of sample required. 
The composite sample taken from any lot of 
mixed fertilizer or fertilizer material under the 
provision of this paragraph shall be placed in a 
tight container and shall be forwarded to the com- 
missioner with proper identification marks. 

(e) The commissioner may modify the provi- 
sions of this section to bring them into conform- 
ity with any changes that may hereafter be made 
in the official methods of and recommendations 
for sampling mixed fertilizers or fertilizer ma- 
terials which shall have been adopted by the as- 
sociation of official agricultural chemists. There- 
after, such methods and recommendations shall be 
used in all sampling done in connection with the 
administration of this article in lieu of those pre- 
scribed in paragraphs (b), (c) and (d) of this 
section. 

(f) All samples taken under the provisions of 
this section shall be taken from original unbroken 
bags or containers, the contents of which have 
not been damaged by exposure, water, or other- 
wise. 

(g) The commissioner shall refuse to analyze 
all samples except such as are taken under the 
provisions of this sectiTDn and of section 4689(10). 

(h) No suit for damages claimed to result from 
the use of any lot of mixed fertilizer or fertihzer 
material may be brought unless it shall be shown 
by an analysis of a sample taken and analyzed, in 
accordance with the provisions of this article, 
that the said lot of fertilizer as represented by a 



[ 148 



§ 4689(10) 



AGRICULTURE 



§ 4689(12) 



sample or samples taken in accordance with the 
provisions of this section and section 4689(10) do 
not conform to the provisions of this article with 
respect to the composition of the mixed fertilizer 
or fertilizer material, unless it shall appear to the 
commissioner that the manufacturer of the fer- 
tilizer in question has, in the manufacture of other 
goods offered in this state during such season, 
employed such ingredients as are outlawed by 
the provisions of this article, or unless it shall 
appear to the commissioner that the manufacturer 
of such fertilizer has offered for sale during that 
season any kind of dishonest or fraudulent goods, 
(i) In the trial of any suit or action wherein 
there is called in question the value of composi- 
tion of any lot of mixed fertilizer or fertilizer ma- 
terial, a certificate signed by the fertilizer chemist 
and attested with the seal of the department of 
agriculture, setting forth the analysis made by the 
chemists of the department of any sample of said 
^nixed fertilizer or fertilizer material, drawn un- 
der the provisions of this section or section 4689- 
(10) and analyzed by them under the provisions 
of the same, shall be prima facie proof that the 
fertilizer was of the value and constituency shown 
by said analysis. And the said certificate of the 
chemist shall be admissible in evidence to the 
same extent as if it were his deposition taken in 
said action in the manner prescribed by law for 
the taking of depositions. (1933, c. 334, s. 9.) 

§ 4689(10). Samples by purchaser or consumer, 

— -Any purchaser or consumer may take and have 
a sample of mixed fertilizer or fertilizer material 
analyzed if taken in accordance with the follow- 
ing rules and regulations: 

(a) At least five (5) days before taking a 
sample, the purchaser or consumer shall notify 
the manufacturer or seller of the brand in writ- 
ing, at his permanent address, of his intention to 
take such a sample and shall request the manu- 
facturer or seller to designate a representative to 
be present when the sample is taken. 

(b) The sample shall be drawn in the presence 
of the manufacturer, seller or a representative 
designated by either party together with two dis- 
interested freeholders; or in case the manufac- 
turer, seller or representative of either refuses or 
is unable to witness the drawing of such a sample, 
a sample may be drawn in the presence of three 
disinterested freeholders: Provided, any such 
sample shall be taken with the same type of 
sampler as used by the inspector of the depart- 
ment of agriculture in taking samples and shall 
be drawn, mixed and divided as directed in para- 
graphs (b), (c), (d), (e) and (f) of section 4689- 
(9), except that the sample shall be divided into 
two parts each to consist of at least one (1) 
pound. Each of these is to be placed into a sepa- 
rate, tight container, securely sealed, properly 
la;beled and one sent to the commissioner for 
analysis and the other to the manufacturer. A 
certified statement in a form which will be pre- 
scribed and supplied by the commissioner must 
be signed by the parties taking and witnessing the 
taking of the sample. Such certificate is to be 
made and signed in duplicate and one copy sent 
to the commissioner and the other to the manu- 
facturer or seller of the brand sampled. The wit- 
nesses of the taking of any sample, as provided 



for in this section, shall be required to certify 
that such sample has been continuously under 
their observation from the taking of the sample 
up to and including the delivery of it to an ex- 
press agency, a postoffice or to the office of the 
commissioner. No sample may be taken under 
the provisions of this section except within thirty 
(30) days after the actual delivery to the con- 
sumer. 

(c) Samples drawn in conformity with the re- 
quirements of this section shall have the same 
legal status in the courts of the state as those 
drawn by an official inspector of the department 
as provided for in section 4689(9). (1933, c. 324, 
s. 10.) 

§ 4689(11). Chemical analyses. — (a) The com- 
missioner shall have the power at all times and 
in all places to have collected by an authorized 
inspector samples of any mixed fertilizer or fer- 
tilizer material offered for sale in the state and to 
have the same analyzed. 

(b) The official methods of analysis prescribed 
by the association of official agricultural chemists 
shall 'be followed in making the chemical analyses 
provided for in this section. (1933, c. 324, s. 11.) 

§ 4689(12). Plant food deficiency.— (a) When- 
ever the commissioner shall be satisfied that any 
fertilizer is five (.5) per cent and not more than 
ten (10) per cent in value below the analysis 
guaranteed under section 4689(4) or claimed by the 
marking required under section 4689(5) in the total 
value of the sum of the nitrogen, phosphoric acid 
and potash, it shall be his duty to require that 
twice the value of the deficiency be paid by the 
manufacturer of such mixed fertilizer or fertilizer 
material to any person who purchases for his 
own use said deficient analysis fertilizer; and 
should any fertilizer fall more than ten (10) per 
cent below the value of the guaranteed plant food, 
it shall be the duty of the commissioner to assess 
three times the value of such deficiency against 
the manufacturer of the mixed fertilizer or fer- 
tilizer material and require the same to be paid to 
the consumer of such mixed fertilizer or fertilizer 
material, and the commissioner may seize any 
fertilizer belonging to such manufacturer if the 
deficiency shall not be paid within thirty (30) 
days after notice to such manufacturer. If the 
commissioner shall be satisfied that such deficiency 
in plant food was due to the intention of the 
manufacturer of the same to defraud, then he 
shall assess and collect from the said manufacturer 
double the amount which he would have assessed 
and collected as hereinbefore provided, and pay 
the same over to the consumer of such mixed 
fertilizer or fertilizer material. Any excess of any 
ingredient above the guarantee shall not be 
credited to the deficiency of any other ingredient 
if the deficiency is more than fifteen (15) per 
cent; and the penalty for deficiencies arising in 
this connection shall be four times the value of 
such deficiencies, such deficiencies to be assessed 
and paid as hereinbefore provided. In fixing the 
penalties mentioned in this section, or any other 
sections of this article, the commissioner shall es- 
timate them by the wholesale price at the factory 
at the time of contract. If any manufacturer shall 
resist such collection or payment the commis- 



[149] 



§ 4689(13) 



AGRICULTURE 



§ 4689(20) 



sioner shall immediately publish the analysis and 
facts in the bulletin, and in one or more news- 
papers in the state, to be selected by him: Pro- 
vided, that if the analysis made by the chemists 
of the department shall show more than twelve 
and one-half (12.5) per cent deficiency in the 
whole, the purchaser may, in lieu of accepting the 
penalty as provided by law, cancel the contract 
or purchase; but he must within five (5) days 
after receipt of said analysis notify the seller of 
his intention to cancel the contract and his re- 
fusal to keep the said fertilizer. 

(b) The commissioner, in determining for ad- 
ministrative purposes whether or not any mixed 
fertilizer or fertilizer material is deficient in plant 
food, shall be guided solely by the official sample 
as defined in section 4689 (3) and as provided for 
in paragraphs (b), (c), (d), (e) and (f) of section 
4689(9) and the samples taken under the provi- 
sions of section 4689(10). (1933, c. 334, s. 12.) 

§ 4689(13). Chlorine content. — If the chlorine 
content of any lot of fertilizer as found by official 
analysis shall exceed the maximum percentage by 
more than twenty-five (35) per cent of the guar- 
anteed amount and not more than fifty (50) per 
cent, the person guaranteeing the registration, or 
his agent, shall be liable for a penalty equal to 
ten (10) per cent of the value of the lot of fer- 
tilizer from which the sample was taken. If the 
excess of chlorine is more than fifty (50) per cent 
and not more than one hundred (100) per cent 
the penalty shall be twenty (20) per cent of the 
value, and if the excess is more than one hundred 
(100) per cent the penalty shall be fifty (50) per 
cent of the value of the lot of fertilizer from which 
the sample was taken. All penalties assessed un- 
der this section shall be paid to the purchaser or 
consumer of the lot of fertilizer represented by 
the sample analyzed. (1933, c. 324, s. 13.) 

§ 4689(14). Commercial value. — ■ The approxi- 
mate retail value per pound and per unit of the 
various ingredients of mixed fertilizers and fer- 
tilizer materials, namely, nitrogen, phosphoric acid 
and potash, may be computed by the commis- 
sioner and be used to establish the relative value 
of the mixed fertilizers and fertilizer materials 
sold or offered for sale in this state. The com- 
missionet is authorized to furnish such relative 
values to any persons engaged in the manufac- 
ture or sale of mixed fertilizers or fertilizer ma- 
terials in this state upon application and to pub- 
lish the same under the provisions of section 
4689(21). (1933, c. 334, s. 14.) 

§ 4689(15). Minimum plant food content. — (a) 

No superphosphate, no fertilizer with a guarantee 
of two plant food ingredients, or no complete 
mixed fertilizer shall be sold or offered for sale 
for fertilizer purposes within this state, which 
contains less than 14 per cent of plant food, ex- 
cepting potash in combination with lime which 
shall contain not less than two (2) per cent of 
potash soluble in water. This shall not apply to 
natural animal or vegetable products not mixed 
with other materials. 

(b) No nitrate of soda containing less than 
fourteen and one-half (14.5) per cent of nitrogen 
and no sulphate of ammonia containing less than 
nineteen and one-half (19.5) per cent of nitrogen 



shall be registered, sold or offered for sale in this 
state. 

(c) This section shall not apply to the sale or 
offer for sale of fertilizer materials to a fertilizer 
manufacturer for manufacturing purposes. (1933, 
c. 324, s. 15.) 

§ 4689(16). Fillers.— It shall be unlawful for any 
person to manufacture, offer for sale or sell in this 
state any mixed fertilizer or fertilizer material 
containing any substance used as a filler that is 
injurious to crop growth or deleterious to the 
soil, or to use in such mixed fertilizer or fer- 
tilizer material as a filler any substance that con- 
tains inert plant food material or any other sub- 
stance for the purpose or with the effect of de- 
ceiving or defrauding the purchaser. (1933, c. 
324, s. 16.) 

§ 4689(17). Materials containing unavailable 
plant food. — (a) It shall be unlawful for any per- 
son to offer for sale or to sell in this state for fer- 
tilizer purposes any raw or untreated leather, hair, 
wool, waste, hoof, horn, or similar nitrogenous 
materials, the plant food content of which is 
largely unavailable, either as such or mixed with 
other fertilizer materials. 

(b) This section shall not apply to the sub- 
stances mentioned in paragraph (a) when they 
have been treated or processed in such manner as 
to make available the plant food constituents con- 
tained therein. 

(c) This section shall not apply to the sub- 
stances mentioned in paragraph (a) which are 
shipped, offered for sale or sold to manufacturers 
of fertilizer. (1933, c. 324, s. 17.) 

§ 4689(18). Deception and fraud.— It shall be 
unlawful for any person to make any false or mis- 
leading representation in regard to any mixed fer- 
tilizer or fertilizer material shipped, sold or of- 
fered for sale by him in this state, or to use any 
misleading or deceptive trade mark or brand name 
in connection therewith. The commissioner is 
hereby authorized to refuse registration for any 
mixed fertilizer or fertilizer material with respect 
to which this section is violated. The sale or offer 
for sale of any mixture of nitrogenous fertilizer 
materials under a name or other designation de- 
scriptive of only one of the components of the 
mixture shall be considered deceptive or fraudulent. 
(1933, c. 324, s. 18.) 

§ 4689(19). Sales of materials to consumers. — 

Nothing in this article shall abridge the right of a 
consumer of mixed fertilizer or fertilizer material 
to buy materials from any manufacturer or dealer 
for his own use: Provided, the tonnage tax has 
been paid thereon, if subject thereto, and that the 
provisions of this article otherwise in respect to 
such materials have been complied with. (1933, 
c. 334, s. 19.) 

§ 4689(20). Reports of shipments. — It is re- 
quired of each person registering mixed fertilizers 
and fertilizer materials under this article that he 
furnish the commissioner with a written statement 
of the tonnage of each grade of fertilizer sold by 
him in this state. Said statements shall include 
all sales for the periods of January first to and 
including June thirtieth and of July first to and 
including December thirty-first of each year. 



[150] 



§ 46S9(21) 



AGRICULTURE 



§ 4690(a) 



These statements are to be made within 30 days 
of the expiration dates of each of these periods. 
(1933, c. 324, s. 20.) 

§ 4689(21). Publications. — The commissioner is 
authorized to pubHsh at such time and in such 
form as he may deem proper information con- 
cerning the production and use of mixed fertilizers 
and fertilizer materials, and shall publish an an- 
nual report which shall contain a statement of 
money received and expended from the sale of 
tax tags and appropriately classified statistics of 
fertilizer sales in the state. Reports of the de- 
partment chemists' findings based on official sam- 
ples of mixed fertilizer or fertilizer material sold 
within the state as compared with the guaranteed 
analyses registered under sections 4689(4) and 
4689(5) shall be published by the commissioner 
as promptly as possible after the completion of 
analyses, or at least annually. (1933, c. 324, s. 21.) 

§ 4689(22). Regulations. — For the enforcement 
of this article, the commissioner is authorized to 
prepare and issue such regulations as may be 
necessary, and to cooperate with any department 
or agency of the government of the state as he 
may elect in their enforcement. (1933, c. 324, s. 
22.) 

§ 4689(23). Misdemeanors.— Each of the fol- 
lowing offenses shall be a misdemeanor and any 
person upon conviction thereof shall be punished 
as provided by law for the punishment of mis- 
demeanors: 

(a) The violation of any one of the following 
provisions of this article: Section 4689(16); para- 
graph (a) of section 4689(17); and section 4689- 
(18). 

(b) The filing with the commissioner of any 
false statement of fact in connection with the 
registration under section 4689(4) of any mixed 
fertilizer or fertilizer material. 

(c) Forcibly obstructing the commissioner or 
any official inspector authorized by the commis- 
sioner in the lawful performance by him of his 
duties in the administration of this article. 

(d) Knowingly taking a false sample of mixed 
fertilizer or fertilizer material for use under any 
provision of this article; or knowingly submitting 
to the commissioner for analysis a false sample 
thereof; or making to any person any false repre- 
sentatioi'. with regard to any mixed fertilizer or 
fertilizer material sold or offered for sale in this 
state for the purpose of deceiving or defrauding 
such other person. 

(e) The fraudulent tampering with any lot of 
mixed fertilizer or fertilizer material so that as a 
result thereof any sample of such mixed fertilizer 
or fertilizer material taken and submitted for 
analysis under this article may not correctly repre- 
sent the lot; or tampering with any sample taken 
or submitted for analysis under this article, if done 
prior to such analysis and disposition of the sam- 
ple under the direction of the commissioner. 

(f) The delivery to any person by the fertilizer 
chemist or his assistants or other employee of the 
commissioner of a report that is willfully false and 
misleading on any analysis of mixed fertilizer or 
fertilizer material made by the department in con- 
nection with the administration of this article. 
(1933, c 324, s. 23.) 

[1 



§ 4689(24). Penalties for unauthorized sale, sale 
without tax tags, and misuse of tax tags: 

(a) Forfeiture for Unauthorized Sale, Release 
from Forfeiture. — All fertilizers and fertilizer ma- 
terials sold or offered for sale contrary to the provi- 
sions of this article as stated in paragraphs (a), (c) 
and (f) of section 4689(4); (a), (b), (c), (d), (e), 
(f) and (g) of section 4689(5) and section 4689(6) 
shall be subject to seizure, condemnation, and sale 
by the commissioner. The net proceeds of such sale 
shall be placed to the credit of the state treasurer 
for the use of the department of agriculture. The 
commissioner, however, may in his discretion, re- 
lease the fertilizers so seized and condemned upon 
payment of the required tax or charge, a fine of 
ten dollars ($10.00), and all costs and expenses 
incurred by the department in any proceeding 
connected with such seizure and condemnation, 
and upon compliance with all other requirements 
of this article. 

(b) Method of Seizure and Sale of Forfeiture. — 
Such seizure and sale shall be made under the di- 
rection of the commissioner by any officer or agent 
of the department. The sale shall be made at the 
courthouse door in the county in which seizure is 
made, after thirty (30) days' advertisement in some 
newspaper published in such county, or if no news- 
paper is published in such county, then by like ad- 
vertisement in a newspaper published in the near- 
est county thereto having a newspaper. The ad- 
vertisement shall state the brand name or name 
of the goods, the quantity, and why seized and 
offered for sale. 

(c) Sale without Tag; Misuse of Tag; Penalty; 
Forfeiture. — Every merchant, trader, manufac- 
turer, broker, or agent who shall sell or offer for 
sale any mixed fertilizer or fertilizer material 
without having attached thereto such tags as 
are required by paragraphs (a) and (c) of sec- 
tion 4689(7), or who shall use the required tags 
a second time to avoid the payment of the ton- 
nage charge, and every person who shall aid in 
the fraudulent selling or offering for sale of any 
such fertilizer, shall be liable to a penalty of the 
price paid the manufacturer for each separate 
bag, barrel, or package sold, or offered for sale, 
or removed, said penalty to be recovered by the 
commissioner by suit brought in the name of the 
state, and any amount so recovered shall be paid, 
one-half to the informer and one-half to the state 
treasurer for the use of the department of agri- 
culture. If any such fertilizer shall be condemned 
as provided by law, it shall be the duty of the 
commissioner to have an analysis made of the 
same and cause printed tags or labels expressing 
the true chemical ingredients thereof to be put 
upon each tag, barrel, or package, and shall fix the 
commercial value at wh